August 15, 2003 Legislation

JCAHO & Unilateral Amendments Is the Hospital a Friend?

Malpractice

Accreditation

Boutique Medicine

Decrease Medicare Onc Pharma 

Licensure

California Legislation to be Signed

JCAHO & Unilateral Amendments Is the Hospital a Friend?

To all those medical staffs who believe the hospital is your friend, I am enclosing a part of a letter put out by the California Hospital Association supporting the ability of hospitals to unilaterally change medical staff bylaws.  Let us hope their side will not prevail with the JCAHO, but they do pay alot of money to the organization. This is dated 8/5/03:

Background
As stated above, JCAHO has issued a field review regarding a proposed additional EP for MS Standard 1.30. The proposed additional EP (MS.1.30, EP2) would state that "Neither the medical staff bylaws nor the governing body bylaws have language that provides for unilateral amendment of the medical staff bylaws or rules and regulations."
JCAHO states that the underlying rationale for this standard is that the provision of safe, high quality care in an accredited hospital requires a collaborative working relationship between the governing body and the medical staff, and that:unilateral actions on the part of either party are a prima facie indication of the disruption of this relationship. Accordingly, the Joint Commission has found any organization in which the governing body has actually taken unilateral action to amend the medical staff bylaws or rules and regulations to be not in compliance with Joint Commission standards, even if such action conforms with applicable state law. Proposed EP 2 would extend the potential for citations of noncompliance by the Joint Commission to instances in which the governing body and/or medical staff bylaws in an accredited organization contain language which authorizes unilateral amendment of the medical staff bylaws or rules and regulations, even if such bylaws language is authorized or were to be required by applicable state law.
Although CHA agrees that the hospital governing body and medical staff ideally should always work collaboratively and professionally with one another, CHA has serious concerns with this proposed EP.  "Unilateral amendment" is not defined, and this phrase in the past has led to confusion and disagreement. In certain unusual situations, the governing body must be able to amend medical staff bylaws without the medical staff's agreement, after diligent efforts to obtain medical staff comments and suggestions have been made, so that the governing body avoids violating the law or the hospital's fiduciary responsibilities.  The proposed new EP could easily be interpreted as a prohibition against that approach, which would undermine the governing body's ability to meet its responsibility for the quality of care, and would increase the likelihood of medical staffs holding governing bodies "hostage" in situations where it is necessary to amend the medical staff bylaws to comply with externally-imposed legal, JCAHO, or operational requirements.

Discussion
The hospital governing body is ultimately responsible for the operation of the hospital. This universally accepted premise is mandated by the federal government in the Medicare Conditions of Participation (see 42 C.F.R. Section 482.12), by JCAHO (see the Governance Standards) and by virtually every state in hospital licensing laws (see Title 22, California Code of Regulations, Sections 70035 and 70701). As part of its overall responsibility, a hospital's governing body must take reasonable steps to conform to all applicable federal, state and local laws and regulations. In addition, California law is clear that the hospital's governing body is ultimately responsible for the quality of care a hospital provides. See Elam v. College Park Hospital, 132 Cal.App.3d 332, 341 (1982). 
The hospital governing body must ensure that the hospital complies with federal, state, and local laws, with JCAHO standards, and with patient care standards. Medical staffs, although vital to hospital operations, are not ultimately responsible for compliance, and are not held accountable for hospitals' noncompliance with the law or with JCAHO Standards. Medical staff members are not fined, do not lose their licenses, do not lose their Medicare and Medicaid certifications, and do not lose accreditation if the medical staff bylaws fail to comply with legal or JCAHO requirements. Rather, the hospital and the governing body face these consequences. The governing body must be able to amend the medical staff bylaws without medical staff approval if necessary.
CHA supports full communication and collaboration between the governing body and the medical staff.  However, a hospital governing body cannot delegate its legal and fiduciary responsibilities, and therefore must retain the authority to meet its obligations.

Malpractice

Kentucky has allowed one malpractice carrier a 29% raise in premiums for the coming year.  The insurer wanted 157% raise in insurance for hospitals.  Approval is required for any raise over 25%.  The Insurance Commissioner also denied a 57% increase to another company, which then reduced the increase to 40%, which was approved.   

Florida has postponed the August 5 third special session of the legislature to deal with the malpractice crisis in the state.  He believes that more time will allow the negotiators to come up with a better bill prior to having the legislature meet.     Top

Accreditation

The embattled Washington DC hospital, Greater Southwest Community, that is in the middle of a political battle between the politics of DC and the JCAHO, has stated it will satisfy the city requirements within 60 days or close.  This gives the city, not JCAHO, the power to shut them down if they do not walk the walk.  This is the second ultimatum to the hospital.  It ignored the one in March and so did the city. 

Washington DC is to give a list of things that must be done at the hospital within 60 days or the license will be lifted.  This included hiring a new permanent director of the ED, shoring up their medical records and equipment maintenance. 

The hospital has agreed to the terms set out by the city to remain licensed.  There must be at least two ED physicians at all times.  There must be ED core nursing staff and provide triage within 30 minutes of arrival.  They also have to improve equipment and maintenance along with their record keeping.  As I have said before, there is no way the city or the politically motivated JCAHO will allow this hospital to close.        Top

Boutique Medicine

The Washington State Office of Insurance has declared that boutique medicine is dead.  The Commissioner believes that it is illegal under the Washington State law.  This includes both retainer fees and monthly fees for quick access.  The only way the physician can charge the retainer fees is if they have no insurance contracts with the patient's insurers, if the fees do not cover any medical services and if the patients are uninsured.  The commissioner believes these are insurance fees and therefore he can regulate them.  This will probably challenged in the courts.        Top

Decrease Medicare Onc Pharma

CMS has decided to markedly decrease the money they are paying for the few medications they pay for.  This mainly involves oncologists.  The current standard is for the oncologist to administer the cancer fighting dugs either in the hospital outpatient setting or his/her office.  If done in the outpatient hospital setting the oncologist does not make any money except for a visit but has no expenses either.  In the office the oncologist has the medication delivered by his nurse and the payment is for the drug and some small amount for the administering of the drug.  Under the new way the amount paid for the drug will be significantly reduced and the payment for the administration will be somewhat increased.  This means a continued overhead for the physician with less income.  The only way to halt the free fall is to transfer care back to the hospital setting and get rid of now unneeded salaries. If the physician has the patient pick up the medicine at the pharmacy they will still have the office overhead for the nurse.  They will only be punishing the patient and not acting like a prudent business person.        Top

Licensure

A physician has quit the Massachusetts Medical Board to publicize the faulty nature of the Board.  There are over 400 cases of unexpected deaths and other potential problems that are backlogged and not even read to prioritize or triage.  This is the second physician to quit for the same reason.  The first was the medical board's chair and this one is a former editor of the New England Journal of Medicine.  The problem stems from lack of money for staff to reviewing the reports from hospitals as well as internal politics.  They accuse the Executive Director of putting too much money into the taking of licenses and not enough into the nonpunative safety program.        Top

California Legislation to be Signed

Potentially lame duck Governor not only is naming judges as fast as he can but is finally getting around to signing legislation.  Some of the health related measures that should be signed very soon are the requirement that schools teach age appropriate sex education, uniform guidelines for emergency contraception, the limitation of what a pharmacist may ask or charge for emergency contraception and the requirement that insurers can not increase premiums for abortion clinics because of claims for hate crimes.  It also increases the definition of hate crimes against abortion centers.        Top

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DISCLAIMER: Although this article is updated periodically, it reflects the author's point of view at the time of publication. Nothing in this article constitutes legal advice. Readers should consult with their own legal counsel before acting on any of the information presented.