October 24, 2007

Dennis S. O’Leary, M.D.
President
The Joint Commission
One Renaissance Boulevard
Oak Brook Terrace, Illinois 60181

RE: Standard MS.1.20

Dear Dennis:

The Hospital & Healthsystem Association of Pennsylvania (HAP), on behalf of its Joint Commission accredited hospitals, has been actively engaged in the developments related to these standards’ revisions and is very concerned with the Joint Commission’s newly adopted revisions to MS.1.20. At its June meeting, the Joint Commission Board of Commissioners approved revisions to MS.1.20, a standard that contains many elements of performance that outline what must be addressed in medical staff bylaws and the relationship between the organized medical staff, elected medical staff executive committee, and hospital governing body with respect to the adoption of medical staff bylaws.

The Joint Commission has indicated that the revised standard “seeks to allow for an efficient process, for the hospital and its medical staff, for creating and maintaining medical staff bylaws, rules and regulations, and policies. To do this, the standard indicates what must appear in the medical staff bylaws, and what must appear in the bylaws, or in the rules and regulations, or policies.” Instead, the provisions adopted by the Joint Commission lack sufficient clarity and flexibility; compromise efficiency; place additional burden and expense on accredited facilities; and allow and even promote the medical staff to circumvent the medical staff executive committee.

Significant Departure from Previous Field Review Draft
HAP and its Joint Commission accredited member hospitals are disappointed in the new MS.1.20 standards and elements of performance that have recently been approved by the Joint Commission. These standards and elements of performance represent a significant departure from the August 2006 draft that was released for field review. Additionally, the approved standards and elements of performance revert to many of the unnecessary, vague, and arbitrary requirements in the pre-August 2006 draft versions, which created much concern among accredited hospitals. It continues to be unclear what problems or perceived problems the Joint Commission is attempting to address through these revisions and why the Joint Commission so drastically reversed direction from where it appeared to be headed in August 2006.

Lacks Clarity and Flexibility
HAP commented on pre-August 2006 draft revisions to MS.1.20 and identified concerns about the unnecessary restrictive and prescriptive requirements on how hospital medical staff documents should be organized and amended as well as concerns about the distinctions that the Joint Commission attempted to make between “requirements,” “processes,” and “procedural details,” which created much controversy and confusion. To a great extent, the Joint Commission responded to the field’s concerns in the revisions put forward for field review in August 2006.

The draft August 2006 standard deferred to individual medical staffs and hospitals about where and how medical staff could define medical staff requirements, process, and procedures by simply saying that the “medical staff bylaws or rules, regulations, and policies adopted by the organized medical staff and approved by the governing body” had to address all the requirements related to medical staff organization, membership, credentialing, and corrective action. It was up to individual medical staffs and hospital governing bodies to determine whether these provisions would be addressed in the medical staff bylaws or other documents and whether and how policies, procedures, rules and regulations could be approved by the medical staff executive committee on behalf of the full medical staff. This approach removed all the uncertainty concerning what had to be in which documents, and what process had to be followed for approval.

The final standard adopted by the Joint Commission Board of Commissioners now mandates that certain specific matters must be in the medical staff bylaws and must be approved by the full medical staff. Other non-substantive “procedural details” may be placed in rules, regulations, policies or procedures and may be approved on behalf of the medical staff by the medical staff executive committee. These requirements unnecessarily usurp the autonomy of medical staff to determine how to act in the manner they deem most efficient for their medical staffs and the organization in which they practice. These vague distinctions are not only unnecessary but are also so ambiguous that hospitals and their respective medical staffs will find it extremely difficult to predict with any certainty what Joint Commission surveyors will find to be acceptable. It is almost certain that these ambiguities will result in different interpretations by different surveyors and result in uneven, inconsistent enforcement and lack of predictability in the survey process.

HAP and its member hospitals believe that medical staffs should have the ability to determine how they will articulate, organize, and adopt provisions for medical staff self-governance and accountability, including addressing medical staff organization, credentialing, privileging, appointment/reappointment, fair hearings and appeals in shorter and more focused documents that are companion documents to the bylaws. HAP also believes that JCAHO should not prescribe the manner in which the medical staff may amend or change bylaws or companion documents. Instead, JCAHO should require organizations to demonstrate that whatever process is adopted is legitimate, practical, efficient, and reasonably represents the medical staff as a whole. Finally, HAP would argue that it is not legally advisable or operationally effective to address part of credentialing or another function in two separate documents as suggested by JCAHO in the standard and elements of performance adopted by the Board at its June meeting.

Compromises Efficiency and Creates Unnecessary Cost and Burden
The Joint Commission new MS.1.20 standard and elements of performance dictate what information needs to be included in the medical staff bylaws. Historically, the bylaws provided a general structure for the medical staff to govern the provision of patient care. The details often were included in policies and procedures that the medical staff executive committee could adapt and change as needed. This model enabled flexibility and was fluid enough to respond to changes in law, regulations, and ongoing changes made by the Joint Commission to its own standards and National Patient Safety Goals. By requiring so much more to be contained in the medical staff bylaws in the approved MS.1.20 standard, the Joint Commission has effectively compromised the ability of a hospital and its medical staff to respond in a timely and efficient manner to changing requirements imposed by outside organizations or to changes in process that would improve care identified by an individual hospital and its medical staff.

The introduction to MS.1.20 states that one of the guiding principles behind the standard’s revisions is to allow for a more “efficient process” in creating and maintaining bylaws, rules, regulations, and policies. In fact, the new standard will have just the opposite effect. The typical process for amending bylaws is methodical and often takes several months to complete. The new standard requires many aspects that are presently addressed in policies and procedures to be included in the bylaws. The new standard will require medical staffs to revise their bylaws to include all of the required elements, and the standards, as approved, will require frequent future revisions in response to changes in laws, regulations, accreditation standards, including devising ways to ensure that the medical staff is aware of the proposed changes and votes on the recommended bylaws changes. The Joint Commission has adopted a standard and elements of performance that will require hospitals to devote considerable expense and time to ensuring that the medical staff bylaws are revised and amended on an ongoing basis, a much more cumbersome and time consuming process than what is required to amend policies and procedures. This focus seems contrary to the Joint Commission’s interest in having hospitals and their medical staffs focus attention on patient safety and quality improvement activities.

Circumvents Medical Staff Executive Committee and Creates Opportunities for Parallel Medical Staff Governance Bodies
The Joint Commission’s new MS.1.20 standards and elements of performance provide the medical staff with the power to override the medical staff executive committee’s decisions and recommendations at virtually every turn. Every recommendation or decision made by the medical staff executive committee, no matter how well considered, is subject to second-guessing and challenge by the medical staff in the application of the new MS.1.20 standards. The August 2006 draft standard allowed the medical staff to approve medical staff bylaws and amendments and present them to the governing body for approval, even if the subject matter had been delegated to the medical staff executive committee. The final standard goes further by allowing the medical staff to not only develop bylaws, but also rules, regulations, and policies in addition to bylaws and to propose them directly to the hospital’s governing body.

Furthermore, the new standard allows for the “organized medical staff to take action to revise the authority it has delegated to the medical executive committee to act on its behalf. The organized medical staff is urged to determine what steps it will take if it does not agree with an action taken by the medical staff executive committee. Such steps might include a process that might allow the organized medical staff, at its discretion to extract and consider an action by the medical executive committee prior to its becoming effective.” The suggestion that the organized medical staff should be able to do something about a medical staff executive committee’s action that it does not agree with is inconsistent with one of the standard’s elements of performance (EP 23), which provides that the “medical staff executive committee acts on behalf of the organized medical staff between meetings or the organized medical staff, within the scope of its responsibilities as defined by the organized medical staff.” If the organized medical staff can extract and reverse a medical staff executive committee action before it becomes effective, then the authority of the medical staff executive committee to act on behalf of the medical staff between meetings is effectively negated. Every action of the medical staff executive committee would be subject to reconsideration and reversal by the full medical staff, and therefore could not be relied upon.

Hospitals have an increasingly difficult time finding interested and dedicated physician leaders to serve as department chairs, committee members, medical staff officers, board and board committee members, and in other positions of authority. If the decisions and recommendations of the medical staff executive committee, and effectively the department chairs, can be constantly questioned, challenged, and overturned; the medical staff executive committee’s authority removed; and if bylaws, rules, and regulations can be proposed without the medical staff executive committee’s formal review and approval, physicians will not only question the point of serving in a leadership role but doubt about the value of the medical staff executive committee.

The MS.1.20 standard approved by the Joint Commission interferes with the balance of medical authority and governance procedures by circumventing the decisions and recommendations of an elected medical staff executive committee. The standard presumes that the medical staff executive committee is not always acting in the medical staff’s best interests and requires a process to emasculate its authority and bypass its decisions. HAP believes this standard has the potential to set up two parallel medical staff governance bodies, where it would be entirely possible for a hospital’s governing body to end up with conflicting recommendations – one from the medical staff and another from the medical staff executive committee.

The MS.1.20 standard and elements of performance adopted by the Joint Commission raise troubling issues and concerns, including creating new opportunities for divisiveness within the medical staff that would be counterproductive and disruptive to the operation of an organization. HAP respectfully suggests that the Joint Commission withdraw its approval of the most recent version of MS.1.20 and adopt the revisions that were submitted for field review in August 2006. HAP looks forward to working with the Joint Commission and the American Hospital Association in addressing hospital and hospital medical leaders’ concerns.

Please feel free to contact Lynn Leighton, vice president, professional & clinical services, HAP (lgleighton@haponline.org); (717) 561-5308 or me with any questions that you might have with respect to our submitted comments.

Sincerely,

Carolyn F. Scanlan
President and CEO