The following Email was sent from the Credentialing and Peer Review Section of the American Health Lawyers.  The Organization is dominated by attorneys from Systems and Hospitals.  This is especially true for this Section. When the Section was asked to comment, the rank and file were never even told of the request.  This included the annual luncheon of the Sections which I attended.  I believe this tells the most why Medical Staffs need their own attorneys and not attorneys paid by the hospitals.

Subj: Further Opportunity for CPR Practice Group Members to Submit Comments to JCAHO 
Date: 2/26/2003 11:24:54 AM Pacific Standard Time
Sent from the Internet (Details)

To:    Credentialing and Peer Review Practice Group Members
From:    Dan Mulholland, Chair
    Sherry Fabina-Abney, Vice Chair
    Ann O'Connell, Vice Chair
    Brenda Strama, Vice Chair
Date:    February 26, 2003

We have received a great deal of interest from members of the CPR Practice Group concerning the comments that were provided to the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) regarding its draft medical staff, telemedicine, and clinical process standards. Because of time constraints on the original request from JCAHO, we were not able to solicit input on the draft standards from the entire practice group, or distribute our comments for review, before we were required to submit them. However based on the comments we have received, we have asked JCAHO to allow us to supplement our earlier comments. We believe the Joint Commission will benefit from hearing from other AHLA members, and Hal Bressler, JCAHO's General Counsel, has indicated that JCAHO would welcome such comments. Accordingly, if you would like to comment on the draft standards or the analysis previously submitted, I invite you to e-mail your comments to Eileen Bantel at by the end of the day next Wednesday, March 5. We will then send a supplement to our comments to Hal Bressler next Friday, March 7. 

We encourage you to submit not only comments you may have that are different from those previously submitted, but also welcome your agreement or disagreement with the comments previously submitted. Eileen will organize the comments and pass them on to Mr. Bressler as a supplement to our earlier submission. 

For your convenience, you can link directly to the following pdf documents:
*    Mr. Bressler's original request for input:
*    A copy of the proposed standards:
*    Peter Leibold's cover letter:
*    AHLA CPR Practice Group's  original field evaluation response:
*    Additional comments from the CPR Practice Group:

or go to the website where all the above documents are located:

We appreciate the attention you have given to these comments, and your participation will significantly improve the comment process

The following is my response.

March 4, 2003  

Harold Bressler
JCAHO General Counsel  

Dear Hal,  

Thank you for allowing the rank and file of the AHLA CPR section to respond to your inquiry regarding the potential changes to the Medical Staff Section of the JCAHO Standards.  As I am sure you are aware, we were not asked to give input into the response until after the date of response closures.  This probably, when you look at who the responders were, was not in error.  We who look at medical staff bylaws from the perspective of the physician and medical staff will have a completely different outlook than those who work and are paid by hospitals and their systems.  

I thank you for your comments in the overview.  It is imperative that there be a check and balance between the medical staff, administration and the board.  Your comments regarding the independence or self-governing of the medical staff is crucial in this balance.   

Medical Staff Structure: I agree that the primary focus of the medical staff is the quality of care provided as well as the leadership of its members.  Your statement of the “primary function” leaves open other areas for the medical staff to take leadership or partnering roles. The Exeter case described by the original responders was a case in one state and based on no underlying law but only by twenty year old comments without legal basis.  It poses no precedence for other states.  Self governance is not a dead concept and in many states the issues of the bylaws actually link the hospital to the governing body under law by the use of a contract.  It does not seem probable that two entities that are together need a contract.  

All the items below relate to the Medical Staff section and therefore should be preceded by MS.  

Standard .1:  My comments here are the same as under Medical Staff Structure.  They differ dramatically from the response by the original responders. As has been the case for the last several decades the medical staff does indeed have the responsibility for the quality of care delivered regardless of the ability to pay or other qualities.  The original responders would have you believe that oversight would be a better term.  This semantical change is not with out distinction.  The difference is where the hospital administration and board fit into the equation. It is my interpretation that the medical staff has the original responsibility and the board the final oversight based on the recommendations of the medical staff.  

Standard .1 Rationale:  I would agree with the JCAHO that there are several types of documents.  The bylaws are the major document.  This requires certain acts by the medical staff to change.  They may not and can not be changed unilaterally by the administration or the board.  The rules and regulations are also necessary and of lesser import than for example credentialing or corrective actions.  These lesser documents should be able to be more fluid and able to be changed by the medical staff executive committee without the concurrence of the full medical staff.  The concept of self governance includes the ability to decide the disapproval as well of any potential bylaws proposed by the hospital.  This continues the theme of checks and balances that is necessary.  The establishment and enforcement of the criteria and standards of medical staff membership is becoming a more important aspect of the work of the medical staff.  The hospitals are making some non-hospital based departments closed departments and are starting to do economic credentialing for staff membership.  These should not be done in a vacuum.  The medical staff should have a process in its bylaws to deal with these issues.  

I do not understand what happens to two hospitals in a single system that are close in proximity and services the same population.  May these institutions have separate medical staffs or must the staffs be integrated soon after the hospitals become one?  What happens if the hospitals then unravel?  The medical staffs that were required to be one must now become separate? This needs to be spelled out with more clarity.  

Standard .1.1:   This notion is implicit in a system of checks and balance.  The medical staff addresses the self governance and also its accountability to the board.  

Standard .1.1 Rationale:  As opposed to the original responder I agree with the JCAHO wording.  It states clearly and concisely that there is a governing body of law, the bylaws.  It then allows for the lesser documents.  The elements of performance as outlined by JCAHO are excellent.  I would like to see something in number 4 that the hospital governing board would not unreasonably withhold its approval.  This would mean they have the ultimate oversight but if they turn down a medical staff bylaw, an explanation would be in order to defend the reasonableness of their decision to go against their medical staff.  The elements add the clarity that has been missing in the past.   

The original responders believe that the corrective action standards may be in the “other documents”.  I do not agree.  The most important part of medical staff function is quality of care and disciplining those who do not perform with the quality of care necessary for the medical staff.  This should be in the most important and hardest to change document.  To allow a medical executive committee that might be hand picked by the administration or governing board individual changes in this structure would be dangerous to the medical staff autonomy.  

Standard .1.1.1:  This standard shows the independence of the two organizations but also the dependence upon one another.   

Standard .1.1.2:  This standard flows directly from the one above.  To allow the governing board to unilaterally amend the medical staff bylaws defeats any pretense of independence.  The medical staff has as much to lose as does the governing board if the accreditation or legal status is placed in jeopardy. No medical staff would want its hospital to be placed in harm’s way.   

Standard .2:  This standard refutes the argument of the original responders that the document doesn’t state that membership on the medical staff is not the final decision of the governing board based on the recommendation of the medical staff. The original responders want the hospital to be able to hand pick the medical executive committee by using the term “core members”.  This would decimate the independence of the medical staff.  The medical staff has the right and the duty to choose its own officers and leaders and this must not be dependant on the wishes of the administration or board based on their own private agendas.  

The original responders believe erroneously that the standards require the medical staff as a whole vote on all issues.  This is not in any portion of the Standards, nor should it be.  The medical staff should be allowed to vote on all issues of significant proportions that are included in the medical staff bylaws, including the election of their leaders.  The elected medical staff leadership can, under a republican form of government, vote in lieu of the whole on the non-essential matters. There is no rationale except for control of the medical staff by the hospital administration or board for the recommended “opt-out” provision put forward by the original responders.  

Credentialing, Privileging and Appointment:  I would like to commend the JCAHO for recognizing that medicine has changed.  There are now many physicians or other LIPs that do not do any hospital work and therefore should not be granted privileges.  However, this does not mean that these people should be denied membership on the hospital staff.  This hospital membership is necessary in some communities for participation on managed care panels or for obtaining continued medical education by attending the hospital conferences. This is, as you described, separate issues of membership and privileges.  

Standard .6:  This new wording allows the hospital to obtain the necessary information on the applicant in a timelier manner than previous and speaks to the potential movement toward CVOs.   

The original responders who represent hospitals and systems do not like the use of quality in decisions made in privileging.  As stated in the main thesis, quality of healthcare is the main reason for the existence of the medical staff.  The original responders wish to remove this in order to put forth their agenda of economic credentialing and exclusive privileging.  There must be quality oversight by the medical staff in the credentialing of all members, including those that the hospital wants to do an exclusive contract or not allow on staff due to some real or imagined competitive purpose.  This does not allow the governing board to close the staff to qualified applicants for economic purposes unrelated to quality of patient care.  Having said this, it is my belief that a hospital with concurrence of the medical staff should be able to do some exclusive contracts if those contracts will promote or increase the quality of patient care.   

I agree with the original responders regarding their comments about letters on page 15 and the use of the executive committee and not the entire medical staff on page 19.   

The use of the term “challenge” has its place.  If the JCAHO believes that in some portion of the standards different words should be inserted for different meanings, they should do so.  

The time frame allotted is strict.  However, if the medical staffs start the process early enough and put teeth into their rules, the rigid time frames should not be a problem.  When I was the medical director of a hospital we had many instances of late re-appointment applications.  These were always due to either the inattention of the medical staff office or physicians or the lack of the medical staff to enforce their own rules. I put teeth into the rules and sent out applications earlier.  This almost completely eliminated the problem in one year.  

The removal of the Hearing and Appeals sections is appropriate except there should be a statement that the medical staff is to follow the applicable laws.  This should not use the term HCQIA, since some states did opt out and put in their own system.  This statement is mentioned in the recent Keystone Credentialing Policy under V. A.  

Standard .6.8:   The original responders seem to be stuck on the inability of the medical staff to get their practitioners credentialed in a timely manner.  As stated above this should not be a problem providing the medical staff is willing to enforce its own rules.  The granting of temporary privileges for important patient care such as to teach a new procedure to the on-staff physicians is reasonable and should not be confused with the granting of privileges to practitioners who are tardy in their credentials.  Those who are tardy in their replies and disrupt the patient care have no one to blame but themselves.  If the medical staff has rules regarding getting the application back in a reasonable period of time to do the necessary verification, they should be followed.  If the back-up call is disturbed, the offending practitioner’s peers will get the practitioner to comply.   

There is also good logic behind the temporary privileges for new applications.  Many times a new physician is prepared to start and can not due to a board meeting being delayed.  The new rules allow the new applicant to begin providing there are no overt problems and the privileges are time limited.   

Standard .6.9:  I would like to congratulate JCAHO for their thought in providing a process in which decisions may be made in times of emergency.  As a former Disaster Committee Chair twenty five years ago at the time of an aircraft plunging into a crowded shopping center, I was grateful for the help of non-medical staff burn specialty physicians who came to help triage the severely burned patients.  We had no process so we used common sense.  We knew the individuals and allowed them to help, period.  Patient care takes and took significant precedence over paper.  

HIPAA Concerns:  As Federal law takes precedence over any JCAHO standards, I see no reason why JCAHO needs to consider any of the myriad of confusing HIPAA standards.  This includes the definition of an OHCA.  There will be on most medical staffs at least one and maybe more physicians who will not be covered entities under HIPAA.  The hospital will by law have no way of forcing the physicians to cooperate with the hospital compliance efforts or belong to the OHCA.  This is not something which with an accreditation entity would or should be concerned.  

Thank you again for allowing the comments from those of us who are not the three or four individuals who answered for all the rest, without asking us our opinions nor telling us about it until after the comment period was over.   


Allan Tobias, MD, JD  

Cc:  AHLA CPR Section