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This June, the Joint Commission Board of Commissioners approved revisions to Standard MS.1.20. The commission is a private accrediting agency of health care organizations and programs in the United States. The newly revised MS.1.20 has not gone without criticism. The two most contentious revisions are that certain accreditation requirements be written into the medical staff bylaws and certain instances allow a hospital’s medical staff to override the hospital’s medical executive committee (MEC). Overall, the preamble to the Revised Standard MS.1.20 states that it seeks to resolve certain issues. First, the new MS.1.20 seeks to address situations where the medical staff believes that its views on patient safety and care are not being represented by the MEC. The commission also intends for the revised standard to promote efficiency for the hospital and staff in “creating and maintaining medical staff bylaws, rules and regulations, and policies.” The Joint Commission recently hosted a teleconference, held Nov. 1, on the revised standard to-date. To be accredited by the Joint Commission, a hospital must be in compliance with the various regulations that are published annually in the Comprehensive Accreditation Manual for Hospitals. The key requirements regarding the medical staff may be found from MS.1.10 to MS.5.10 of the manual. Accreditation is important to health care entities, because the Joint Commission is considered the premier accrediting agency in health care. If a hospital is accredited by the commission, the hospital, for example, is “deemed” in compliance with Medicare Conditions of Participation. Bylaws Requirement The revised MS.1.20 mandates that certain substantive matters be included in the medical staff bylaws. For certain substantive matters, the procedural details must also be included in the medical staff bylaws. However, certain “procedural details” regarding other substantive elements need not be included although they may be added for certain mandates. All medical staff bylaw changes and additions must be adopted and approved by the medical staff and further approved by the hospital’s governing body. In the introduction to MS.1.20, the Joint Commission attempts to elaborate on the difference between a “process” and a “procedural detail,” noting that a procedural detail is the way in which a process will be carried out. For example, the Joint Commission points out that the process for credentialing a physician must be accomplished in several steps, such as collecting information, evaluating it, and making a decision. These are processes. The procedural details would include such matters as who collects the information. Some of the elements that now must be included in the medical staff bylaws include: � The process for privileging licensed independent practitioners; � Indications for automatic and summary suspension of staff membership or clinical privileges; � Medical staff voting eligibility; � Composition, function, size and authority of the medical staff executive committee; and � Fair hearing and appeals processes. If any conflict develops between the medical staff bylaws, and their rules and regulations, and the hospital’s governing body, the standard refers the dispute to the hospital’s conflict-management process, which is set forth in Joint Commission Standard LD.2.40. Critics state that the revised standard is confusing as to what exactly needs to be included in the bylaws and will be time-consuming and burdensome to accomplish. Regarding the confusion, critics of the revised version state it is not clear what really constitutes a procedural detail versus what is a process. It is speculated that in order to ensure compliance, most will ultimately include both aspects into the bylaws. Further, critics state that under normal circumstances changes to medical staff bylaws take several months to accomplish. Such dramatic revisions would therefore, likely, take up a great deal of doctors’ time and be even more contentious than smaller revisions. The Joint Commission, in its Nov. 1 teleconference, stated that it is not the commission’s intention for all medical staff procedures and policies to be included in the medical staff bylaws. Certain items are required to be there, but the content and depth would vary between hospitals. Further, the standard is to encourage medical staff bylaws to operate to allow for optimal quality patient care. ‘Override’ Revision The revised standard allows the medical staff to propose bylaws, rules, regulations and the like directly to the governing body, in lieu of going through the MEC. Additionally, where the medical staff delegates authority to the MEC to approve certain procedural details, the MEC represent the medical staff’s views on quality and safety regarding patient care. The medical staff may take action to revise authority that has been delegated to the MEC. The Joint Commission urges the medical staff “to determine what steps it will take if it does not agree with an action taken by the medical staff executive committee.” The Joint Commission hypothesizes that this could include a process whereby the medical staff could consider certain proposed actions by the MEC prior to the actions becoming effective. Some commentators have criticized the so-called “bypass” provision as creating the possibility of conflicting recommendations being presented to the governing body. Further, it has been noted that it is already currently difficult to find physicians willing to serve on the MEC. Such physicians may be further reluctant to so serve if their authority and decision-making will be questioned by the medical staff. The Joint Commission, in the Nov. 1 teleconference, asserted that it anticipated this provision to be rarely invoked. Instead, the revision is intended to give the medical staff an opportunity to be heard when it feels that the MEC has ceased to act in the best interests of the medical staff or patients. This would occur in what the commission states to be rare instances where the medical staff and MEC’s views are out of sync. The proposed standard has raised the questions of what exactly constitutes a medical-staff member for purposes of voting. Many hospitals have physicians on staff who are not active, or who practice very rarely at the hospital. Certain specialties practice at the hospital far less than others. For this reason, critics feel that certain nonactive staff members should not have a say in an issue that could possibly override the MEC. The Joint Commission also addressed this concern in the Nov. 1 teleconference. The commission officers noted that the language in the standard is somewhat unclear on this issue. However, the Joint Commission asserted that the medical staff it intended were those actively interested in ensuring quality patient care. Conversely, physicians with medical staff privileges who are rarely at the hospital probably would not be included in the medical voting staff. Conclusion The Joint Commission stated that the new standard has the intent of “supporting and reinforcing a productive working relationship between the organized medical staff and the governing body � while minimizing disruptions to the hospital, including its medical staff.” Whether this goal will be accomplished by the revised standard is uncertain. Whether the Joint Commission will further revise Standard MS.1.20 is also unclear. Right now, the Revised Standard MS.1.20 is scheduled to become effective on July 1, 2009. The Joint Commission stated it is allowing the two-year window for “the field to make any changes to medical staff bylaws that may be necessary to bring organizations into compliance with the revised standard.” Hospitals, therefore, must prepare as though the standard will go into effect on that date or risk the danger of noncompliance. Until July 1, 2009, the present MS.1.20 found in the manual will continue to govern. The revised MS.1.20 can be found online at http://www.jointcommission.org/AccreditationPrograms/Hospitals/revisions_std_ms120_approved.htm . VASILIOS J. KALOGREDIS is president and founder of Kalogredis Sansweet Dearden & Burke, a health care law firm, and Professional Practice Consulting Inc., a health care consulting firm, in Wayne, Pa. Among his areas of expertise are group practice arrangements, practice sales and mergers, doctor contract drafting and negotiation, tax and retirement planning for physicians, joint ventures, fraud and abuse matters, and evaluation of practice options for physicians. He can be contacted at 800-688-8314 or by email at [email protected].

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