The Joint Commission has released a revised draft of Hospital Accreditation Standard MS.1.20, which was first proposed in June 2007 and intended to establish a balance of power between hospital administration and hospital medical staffs. Although originally scheduled to become effective January 1, 2009, the controversy and uproar accompanying the proposals in 2007 were so vehement that the Joint Commission withdrew MS.1.20, appointed a task force to review the concept, and replaced it with MS.01.01.01. The Allegheny County Medical Society published an article describing the development of MS.1.20 in its September 2008 Bulletin (“MS.1.20: Opportunity to Restore Medical Staff Governance and Establish Neutral Peer Review,” p. 424, available at www.acms.org). You can view a complete copy of the MS.01.01.01 working draft at www.medlawblog.com.
Now, MS.01.01.01 will replace MS.1.20 in attempting to establish this balance of power by proposing specific performance criteria for hospital medical staffs in three areas:
1. medical staff bylaw’s content and approval process;
2. medical staff governance; and
3. credentialing, peer review and due process.
From a practical viewpoint, MS.01.01.01 is not drastically different from MS.1.20; some have said that the most significant change is the name. The purpose of this article is not to discuss the fine points of MS.01.01.01, but to remind and emphasize to physicians and medical staffs that the bylaw amendment process created by this new standard will require virtually every hospital to revisit and probably revise medical staff bylaws and procedures, and will therefore present a unique opportunity for physicians to define the purpose and authority of the organized medical staff. Some will view this as an opportunity to reestablish the intended function of medical staffs, while others may view this as the same opportunity to further concentrate the authority within hospital administration.
The structure of MS.01.01.01 is very similar to the structure of MS.1.20 and continues to operate in the three critical areas listed above.
Medical Staff Bylaws
The standard will define the composition of medical staff, the voting members of the medical staff and quorum requirements. The standard will require a process that prohibits unilateral amendment of the medical staff bylaws by either the medical staff or the hospital governing body. This process, which prohibits unilateral amendments, will make it absolutely crucial that the physicians “get it right now,” because future changes will not be possible without mutual agreement. This is your chance to define the playing field if, in fact, you believe it has become tilted.
Medical Staff Governance
Based largely on complaints from organized medicine, the Joint Commission perceives that existing governance structures concentrated too much power with the hospital administration and the Medical Executive Committee (MEC), creating entrenched physician leadership appointed by the hospital, either through employment or appointment to medical staff positions that—by definition in the bylaws—were members of the MEC. In fairness, I must note that some observers attribute this entrenchment less to the design of hospital administration and more to that law of nature stating that nature abhors a vacuum, with hospital affiliated physician leadership filling the void created by the apathy of the independent members of the medical staff. The standard will now mandate a process which:
(a) defines the composition and authority of the MEC,
(b) provides an avenue of direct access for the medical staff to the governing body when medical staff initiatives are blocked by the MEC, and
(c) provides an agreed process for the election and removal of officers.
Credentialing and Due Process
Both MS.1.20 and MS.01.01.01 require a credentialing and fair hearing process in which the due process requirements are contained in the bylaws; that means they are subject to the “no unilateral amendment” restriction. The bylaws must contain standards for:
(a) appointment and reappointment of medical staff membership and clinical privileges, (b) suspension of clinical privileges and memberships, (c) the process for both investigation and fair hearings, and (d) the composition of the hearing committee.
Regardless of the detail and complexity of the fair hearing process, the most serious criticism of the investigation and hearing process is that, once started, it is a stacked deck against the target physician because of the rules of confidentiality that are perceived to comply to the investigative and the hearing processes. Setting aside the argument of whether state law provides the level of confidentiality often asserted by the hospitals, you must decide now whether that process will be codified in the medical staff bylaws.
As I suggested in the September 2008 article, I think the key to assuring fairness in the fair hearing process is not to seek to better or more rigidly defined rules, but to provide a system that assures fairness. I suggest that fairness is assured, not by rules, but by truth. I think it is a valid presumption that secret agendas, politics and personal grudges will be eliminated when the investigation and fair hearing are conducted in a transparent manner. I further believe that the best way to assure the transparency of the process is to both define the composition of the investigative and fair hearing committees and to allow the target physician to appoint either a voting member or an observer to those committees. This sole physician representative, whether voting or nonvoting, will not have the voting power to dictate the outcome of either the investigation or the fair hearing, but the physician representative will serve as a witness to the fairness of the process.
The American Medical Association (AMA) is represented on the Joint Commission MS.01.01.0 Task Force and is both reportedly and apparently in general agreement with the new standards. Assuming MS.01.01.01 is implemented substantially as proposed, physicians should actively participate in this unique opportunity to revisit medical staff structures in the hospitals at which they practice.