Bill would increase CMS’ authority over JCAHO

Law would end JCAHO’s special regulatory status

(Editor’s note: This is the second in a two-part series on the recent General Accounting Office report on the Joint Commission on Accreditation of Healthcare Organizations. Last month, we covered the report’s controversial findings and the Joint Commission’s response. This month, we cover new legislation that could affect your future surveys.)

A recent report from the Washington, DC-based General Accounting Office (GAO) already has questioned the Joint Commission on Accreditation of Healthcare Organizations (JCAHO)’s ability to detect serious problems in the quality of patient care, but newly introduced legislation could have a longer-term impact.

Bills introduced by Congressman Pete Stark (D-CA) and Senator Charles Grassley (R-IA) would enact the report’s key recommendation — that the Joint Commission’s hospital accreditation program be made specifically accountable to the federal government for deemed status purposes. The bill would give the Centers for Medicare & Medicaid Services (CMS) the same oversight authority over the Joint Commission as is currently the case for other organizations with accreditation authority.

If passed, the bill would put an end to the unique status the Joint Commission has held for nearly 40 years, when the original Medicare Act of 1965 granted the Joint Commission the authority to deem hospitals as eligible for Medicare payments with virtually no federal oversight.

"The issue is that the JCAHO hospital accreditation enjoys a different regulatory status than other accrediting programs — even those run by JCAHO," says Patrice L. Spath, RHIT, a health care quality specialist with Forest Grove, OR-based Brown-Spath & Associates. "Because of this, CMS can only recommend changes to the process, but cannot enforce that those changes are made."

Currently, the Healthcare Facilities Accreditation Program of the Chicago-based American Osteopathic Association is the only other voluntary accrediting organization with deeming authority from CMS to survey hospitals under Medicare. This deeming authority is subject to direct review and approval by CMS. In contrast, CMS has limited oversight authority over JCAHO’s hospital accreditation program.

"It was a serious mistake to pass a law saying that whether Medicare funds went to hospitals depends on passing JCAHO inspections," argues Sidney Wolfe, MD, director of the Health Research Group for Public Citizen, a Washington, DC-based nonprofit public interest organization. "JCAHO shouldn’t have any role in terms of the decision of whether the hospital gets Medicare funds. They should not have any kind of authority over that. The real inspection function is too important to be left to JCAHO and should be done by state health agencies."

However, the legislation would not change the Joint Commission’s role as the primary provider of accreditation surveys for Medicare hospitals, according to Rep. Stark, ranking member of the House Ways and Means Health Subcommittee. The Joint Commission currently accredits more than 80% of U.S. hospitals.

"Hospital quality managers will continue to work with JCAHO," Stark says. "Our legislation just gives Congress and CMS clear oversight authority over JCAHO’s Medicare deeming activities. It will require JCAHO to report directly to CMS to ensure that the surveying processes used protect the quality and safety of patient care, rather than the interests of the hospitals and their physician providers."

Even if the Joint Commission’s accreditation program is placed under federal oversight, that won’t have much of an impact on your future surveys, according to Margaret VanAmringe, vice president for public policy and government relations at JCAHO. "I don’t think it will impact the survey process at all," she says. "We have always acted as if the executive branch had the authority over our accreditation program, so whenever CMS asked for standard interpretation or to put a new standard in process, we have done that and acted in full cooperation. So we won’t be any less cooperative, or more; we will be just as cooperative as we have always been."

However, surveyors will be reminded to ensure that they have looked at all of the areas that are consistent with the Medicare Conditions of Participation (CoPs), VanAmringe acknowledges.

In addition, surveyors are now paying a lot more attention to what they document during surveys, VanAmringe says. She explains that surveyors previously may have noticed certain things that, while irregular, did not amount to a deficiency and thus were not documented. "So if we didn’t record them, it looks as though we didn’t find them or care about them, when that’s not the case," she says.

This is one reason why JCAHO says the GAO’s methodology used is flawed. JCAHO argues that the GAO needed to look at what actually was found during surveys, as opposed to looking only at what was documented, VanAmringe says. "That is the true measure of our capabilities as a detective in quality," she says. "They failed to do that. We are left with a report that reflects poorly on us, but in my view reflects more poorly on the GAO and their methodology."

If the new legislation is passed, the Joint Commission will then need to apply for deemed status, which it has never had to do before, says VanAmringe. This would require JCAHO to demonstrate in a crosswalk that its requirements are equivalent to or exceed the Medicare CoPs. "It is very difficult to prove that, although we know they exceed the Medicare standards, and I don’t think that anybody would say otherwise," VanAmringe says.

The problem is that the standards and the scoring process are not easy to compare, in part because the Joint Commission uses 2004 standards, while Medicare’s standards date back to 1984, says VanAmringe. "We are so different in our process and our actual requirements. We’ve been trying to determine how to crosswalk something that is so vastly different," she says.

In essence, the quality goals of JCAHO and Medicare’s CoPs are the same, such as ensuring that patients are taking the right medications and that there are sufficient staff in the organization. "But how we go about measuring these things could not be more different," VanAmringe says.

For this reason, JCAHO is requesting that Congress not put new legislation into effect until CMS updates its hospital standards to make them 2004-compliant. "Otherwise, it will take us a year to 18 months to apply," VanAmringe says.

Though the Joint Commission itself is not disputing the change, some quality professionals still feel that patients would be better served by leaving the Joint Commission’s status as it currently is. "It might be wise to pause a moment before adding additional costly oversight to a system that, although imperfect, is working," says Patti Muller-Smith, RN, EdD, CPHQ, a consultant for Shawnee, OK-based Administrative Consulting Services. Muller-Smith works with hospitals on performance improvement and regulatory compliance. "Efforts to improve a good system may be less costly and of more benefit to the patient — who, after all, is what it is all about."

[For more information on the proposed legislation, contact:

Patti Muller-Smith, RN, EdD, CPHQ, Administrative Consulting Services, P.O. Box 3368, Shawnee, OK 74802. Telephone: (405) 878-0118. E-mail: mullsmi@aol.com.

Patrice L. Spath, RHIT, Health Care Quality Specialist, Brown-Spath & Associates, P.O. Box 721, Forest Grove, OR 97116. Telephone: (503) 357-9185. E-mail: patrice@brownspath.com. Web: www.brownspath.com.

The text of the proposed legislation to make the Joint Commission’s hospital accreditation program specifically accountable to the federal government for deemed status purposes can be accessed at no charge on Congressman Pete Stark’s web site (www.house.gov/stark). Click on "News," then "7/20/04—Press Release—Hospital Accreditation," then "Text of Stark Bill."]