Medical Staff Bylaws: Updating Hospital Governance Documents to Comply With New Joint Commission Requirements

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THURSDAY, SEPTEMBER 12, 2013

Presenting a live 90-minute webinar with interactive Q&A

Adrienne E. Marting, Partner, Balch & Bingham, Atlanta

Elizabeth A. (Libby) Snelson, Esq., President, Legal Counsel for the Medical Staff, St. Paul, Minn.

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Review of Recent Changes

Adrienne E. Marting Partner, Balch & Bingham LLP (404) 962-3580 amarting@balch.com September 12, 2013

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Authority for Updating Governance Documents

Final rules on Conditions of Participation (CoPs) in the Medicare and Medicaid programs, effective July 16, 2012

CMS’s State Operations Manual, Appendix A – Survey Protocol, Regulations and Interpretive Guidelines for Hospitals, revised June 7, 2013 interprets final rule (the “Interpretive Guidelines”)

Joint Commission (JC) Hospital and Critical Access Manuals (Effective January 2013 and 2014)

Proposed rules on Conditions of Participation, Fed. Reg. Vol. 78, No. 26, Thursday February 7, 2013

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Agenda

Governing Body Medical Staff Other Practitioners and Changes Emergency and Patient Flow Management

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Governing Body

42 CFR § 482.12 (July 2012) Governing body

Must have effective governing body legally responsible for conduct of the hospital

If no organized governing body, persons legally responsible for conduct of the hospital must carry out functions of a governing body

Must include at least one member of medical staff (or not)

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Governing Body

In response to strong objections, CMS holds off on enforcement of medical staff member requirement and states it will reconsider the requirement in future rulemaking

2013 Proposed Rules: CMS rescinds governing board medical staff

member requirement CMS proposes to require governing body to

directly consult with Chief of Staff (at least 2x/yr)

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Governing Body

INTERPRETIVE GUIDELINES If no organized governing body, there must be

written documentation that identifies persons responsible for hospital operations

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Governing Body – System Hospitals

Single Governing Body July 2012 CoPs - CMS allows one governing body

the option to oversee multiple hospitals in a multi-hospital system

CMS maintains position in 2013 proposed rules

Goal is to give hospitals flexibility

Each hospital must still separately demonstrate compliance with all hospital CoPs

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Governing Body – System Hospitals

Option 1. Governing body of system may serve as such for each hospital in the system unless state law conflicts.

Option 2. System may form several governing bodies, each responsible for several of the individual hospitals.

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Hospital System – Different Provider Numbers Option 1

Hospital System

Hospital A – CCN 1 Governing Body A

Hospital B – CCN 2 Governing Body A

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Hospital System – Different Provider Numbers Option 2

Hospital System

Hospital A – CCN 1 Governing Body A

Hospital B – CCN 2 Governing Body B

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Governing Body – System Hospitals

Whenever governing body takes actions that apply to a specific hospital, must be clear in minutes.

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Governing Body – System Hospitals

Governing body may use same policies and procedures for hospital operations across the system But, documentation must be clear as to which

hospital governing body is applying the policies

That means each applicable facility must be named specifically

AND, the name must match the hospital’s provider agreement

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Governing Body – System Hospitals

Separately certified hospitals within a system cannot operationally integrate their departments.

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Governing Body – System Hospitals

Each separately certified hospital in the system must have its own quality assessment/performance improvement (QAPI) program

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Governing Body – Multi-campus Hospital

When making rules for one single multi-campus hospital, the documentation cannot refer to the individual hospitals, but must address them as a singular multi-campus hospital (since that is how they are choosing to participate in Medicare).

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Hospital System – One Provider Number

Hospital System A

Hospital A – CCN 1 East Campus

Governing Body A

Hospital B – CCN 1 West Campus

Governing Body A

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Medical Staff

§ 482.22 – Each hospital must have its own independent medical staff.

Single corporate medical staff may not assume responsibility for the quality of medical care at multiple hospitals within in a multi-hospital system

Confirmed in 2013 proposed rules

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Medical Staff

Composition of Medical Staff (§ 482.22 aligned with § 482.12)

The medical staff must include doctors of medicine or osteopathy. In accordance with State law, including scope-of-practice laws, the medical staff may also include other categories of non-physician practitioners determined as eligible for appointment by the governing body.

Clarified in 2013 proposed rules

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Medical Staff

§482.22(a) – Eligibility and process for appointment to medical staff

The concept of “medical staff” has been broadened to allow hospitals the flexibility to include other practitioners as eligible candidates for the medical staff with hospital privileges to practice in the hospital in accordance with State law. All practitioners will function under the rules of the medical staff. This change will permit hospitals to allow other practitioners (e.g. APRNs, PAs, pharmacists) to perform all functions within their scope of practice. The medical staff must examine the credentials of all eligible candidates (as defined by the governing body) and then make recommendations for privileges and medical staff membership to the governing body.

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Medical Staff

Medical Staff Bylaws (MS.01.01.01 EP 13)

MS.01.01.01: Medical staff bylaws address self-governance and accountability to the governing body.

Added note to EP 13 that the medical staff may also include other categories of nonphysician practitioners:

Note: For hospitals that use Joint Commission accreditation for deemed status purposes: In accordance with state law, including scope of practice laws, the medical staff may also include other categories of nonphysician practitioners.

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Medical Staff

INTERPRETIVE GUIDELINES Medical staff demonstrates accountability by: Exercise of duties related to medical staff

appointments Conduct of reappraisals (including peer reviews) Approval of policies and procedures as required

under CoPs Leadership participation Implementation of the hospital’s QAPI program

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Medical Staff

§482.22(b)– Medical Staff Leadership

Podiatrists allowed to assume leadership roles within hospitals, if hospitals so choose.

Podiatrists may be assigned responsibility for the organization and conduct of the medical staff.

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Other Practitioners and Revisions

Orders by other practitioners 2012 Final rules allow drugs and biologicals to be prepared and

administered on the orders of other practitioners acting within their scope of practice under State law and accordance with hospital policy, medical staff bylaws and regulations.

Standing Orders Hospitals allowed flexibility to use standing orders with added

requirement for medical staff, nursing, and pharmacy to approve written and electronic standing orders, order sets and protocols.

Verbal Orders 2012 Final rules eliminated requirement for authentication within

48 hours and deferred to State law for such timeframes.

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Emergency Management

Standard LD.04.01.05. The [critical access] hospital effectively manages its programs, services, sites, or departments.

Standard EM.03.01.01. The [critical access] hospital evaluates the effectiveness of its emergency management planning activities.

Standard EM.03.01.03. The [critical access] hospital evaluates the effectiveness of its Emergency Operations Plan.

Standard LD.04.04.01. Leaders establish priorities for performance improvement.

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Emergency Management

Hospitals required to identify a leader to oversee emergency management.

Organizations must consider input from staff at different levels when evaluating exercises and responses to events.

Senior hospital leadership required to review the organization’s emergency management planning activities, performance in exercises, and responses to actual events to improve communication of problem areas and implement hospital-wide solutions.

[Jan. 2014]

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Emergency and Patient Flow Management

The annual emergency management planning reviews are forwarded to senior hospital leadership for review. (cross reference LD.04.04.01 discussed below)

Senior hospital leadership refers to those leaders with responsibility for organization-wide strategic planning and budgets (vice presidents and officers). The hospital may determine that all senior hospital leaders participate in reviewing emergency management reviews, or it may designate specific senior hospital leaders to review this information.

[Jan. 2014]

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Emergency and Patient Flow Management

The existing EP requires the hospital to evaluate emergency responses based on all monitoring activities and observations using a multidisciplinary process. The added language specifies that input from all levels of staff that are affected should be considered in the evaluation.

The deficiencies identified in the evaluation not only should be communicated to the team responsible for monitoring environment of care issues, but new language requires it also be communicated to the senior hospital leadership.

[Jan. 2014]

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Emergency and Patient Flow Management

Standard LD.04.03.11. Hospital manages the flow of patients throughout the hospital.

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Emergency and Patient Flow Management

EP 5 (effective Jan. 2013). Hospital measures and sets goals for patient flow process including: Available supply of beds Throughput of areas where patients receive care,

treatment, and services (inpatient unit, lab, ORs, radiology, post-anesthesia care, etc.)

Safety areas where patients receive care, treatment, services

Efficiency of non-clinical services (housekeeping, transportation)

Access to support (case management, social worker)

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Emergency and Patient Flow Management

EP 6 (effective Jan. 2014). Hospital measures and

sets goals for mitigating and managing boarding of patients who go through ED.

Boarding is process of holding patients in ED or another temporary location after the decision to admit or transfer

Hospital should set goals with attention to patient acuity and best practice

Recommended boarding time not exceed 4 hours

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Emergency and Patient Flow Management

EP 7 (effective Jan. 2013). Managers of patient flow process review measurement to determine whether goals achieved.

EP 8 (effective Jan. 2013). Leaders take action to improve patient flow process when goals not met.

Leaders must include members of the medical staff and governing body, the CEO and other senior managers, the nurse executive, clinical leaders, and staff members in leadership positions (at a minimum)

EP 9 (effective Jan. 2014). When hospital determines it has population at risk for boarding due to behavioral health emergencies, hospital leaders communicate with behavioral health care providers and/or authorities serving community to foster coordination of care

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QUESTIONS???

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Conflict Management

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Presented by: Elizabeth A. Snelson

Conflicting Responsibilities

“The governing body is ultimately accountable for the safety and quality of care, treatment, and services.” Joint Commission Standard LD 01.03.01

“The organized medical staff is responsible for establishing and maintaining patient care standards and oversight of the quality of care, treatment, and services rendered by practitioners privileged through the medical staff process.” Joint Commission Accreditation Manual For Hospitals, Rationale for Standard MS 03.01.01

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Conflicting economic interests

Competing services Competing for patients Competing for contracts Competing for staff

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TWO DISTINCT PROCESSES TWO DISTINCT CATEGORIES

OF CONFLICTS

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MEDICAL STAFF v. BOARD MEDICAL STAFF v. MEC

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MEDICAL STAFF v. BOARD

“Senior managers and leaders of the organized medical staff work with the governing body to develop an ongoing process for managing conflict among leadership groups.” Joint Commission standard LD.02.04.01 Element of Performance 1

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Elements of Performance 1 Senior managers and leaders of the organized medical staff work with the governing body to develop an ongoing process for managing conflict among leadership groups. 2 The governing body approves the process for managing conflict among leadership groups. 4 The conflict management process includes the following: - Meeting with the involved parties as early as possible to identify the conflict - Gathering information regarding the conflict - Working with the parties to manage and, when possible, resolve the conflict - Protecting the safety and quality of care 5 The hospital implements the process when a conflict arises that, if not managed, could adversely affect patient safety or quality of care.

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To Be Avoided:

Duplicating the Hearing/Appeal Process

Contradicting the Medical Staff Bylaws

Skewed Decision-making

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Sample Bylaws Disputes between the Medical Staff and Board Anytime the board takes action to reject or substantially revise a medical executive committee or medical staff recommendation, request or action, that action will be tabled pending referral of the matter to the Joint Conference Committee established in these bylaws. The Joint Conference Committee shall manage and resolve the differences, after sufficient opportunity for the committee to receive and review any documentation or other appropriate information, by meeting and working with any involved parties. Dispute Resolution by Mediation If the dispute resolution processes in this section do not resolve the dispute, the parties shall resolve the dispute using a mutually agreed upon mediator.

Massachusetts Medical Society Model Medical Staff Bylaws §VIII.F

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MEDICAL STAFF v. MEC

“The organized medical staff has a process which is implemented to manage conflict between the medical staff and the medical executive committee on issues including, but not limited to, proposals to adopt a rule, regulation, or policy or an amendment thereto. …”

Joint Commission standard MS 01.01.01, Element of Performance 10

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BAD IDEA When there is a conflict between the Medical Staff and the Staff Executive Committee with regard to: (a) proposed amendments to the Medical Staff Rules and Regulations; (b) a new policy proposed by the MEC; or (c) proposed amendments to an existing policy that is under the authority of the MEC, a special meeting of the Medical Staff will be called. The agenda for that meeting will be limited to the amendment(s) or policy at issue. The purpose of the meeting is to resolve the differences that exist with respect to Medical Staff Rules and Regulations or policies. If the differences cannot be resolved at the meeting, the MEC shall forward its recommendations, along with the proposed recommendations pertaining to the Medical Staff Rules and Regulations or policies offered by the voting members of the Medical Staff, to the Board for final action. 49

Sample Bylaws Because the medical staff must be self-governing, the board and its administration have no roles in managing disputes between medical staff committees, departments and members. No medical staff dispute can be referred to the hospital administration or board for action.

Massachusetts Medical Society Model Medical Staff Bylaws §VIII.F

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Sample Bylaws Disputes Between The Medical Staff

& Medical Executive Committee The medical staff, at the request of any member, can raise, discuss and overturn or otherwise change actions taken by the medical executive committee at any medical staff meeting at which a quorum is present. Disputes between Departments,

Committees and Members Disputes between medical staff departments, committees and members can be referred to the medical executive committee, or can be managed by the medical executive committee at its initiative.

Massachusetts Medical Society Model Medical Staff Bylaws §VIII.F

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Sample Bylaws Limits on Conflict Management “Disputes occurring within the medical staff organization between, among or within its departments, committees, leadership and members, and disputes between the medical staff and the board are managed according to this section, except *any issue relating to peer review actions or recommendations, which are handled exclusively according to Article VI. *amendments to the medical staff bylaws, rules and regulations or policies proposed to resolve the dispute must be acted upon by the medical staff and board as required by these bylaws. *Peer review matters are determined through the hearing and appellate review processes, which are set forth in Article VII.

Massachusetts Medical Society Model Medical Staff Bylaws §VIII.F.

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Place process in medical staff bylaws

No Board Default

Cannot supplant mandatory process of bylaws adoption & approval

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Elizabeth A. Snelson

Legal Counsel for the Medical Staff PLLC easesq@snelsonlaw.com