PHYSICIANS’ BEST CHANCE FOR POWER
By; Michael J. Schoppmann, Esq.

While borne of many complex causative factors, there can be no dispute that the power base for physicians has continuously eroded for decades. Traditional vehicles of political action and economic have been found to be inapplicable in the quest to reserve this destructive trend. Yet, from a most unlikely source comes a new hope, a potential foot-hold. The question is, will physicians rally to embrace this new hope, come together to demand its implement-ation and stand united to secure its potential?

In June of 2007, the Joint Commission issued Standard MS. 1.20. The standard centers on what components of medical staff govern-ance must be included in organized medical staff bylaws. The standard weighs heavily toward governance through the medical staff bylaws, as voted on and approved by the member-physicians, versus what is to be purposefully subjugated to the administrative rules, regulations and policies of the hospital, as decided upon and controlled by hospital boards and medical executive committees.

Introduction for Standard MS 1.20
The medical staff and the govern-ing body work together, reflecting clearly recognized roles, responsibil-ities, and accountabilities, to enhance the quality and safety of care, treatment, and services provided to patients. To support this work, the medical staff creates a written set of documents that describes the organ-izational structure of the medical staff and the rules for its self-governance.

These documents are called medical staff bylaws. The medical staff bylaws create a system of rights, respons-ibilities, and account-abilities between the medical staff and the governing body, and between the medical staff and medical staff members.

In addition to the medical staff bylaws, the medical staff may create other medical staff governance docu-ments such as rules and regulations and policies. In doing so, the medical staff may recommend that the procedural details of those require-ments listed in Elements of Performance 26-33 of this standard be retained in the medical staff bylaws, or in rules and regulations or policies, in accordance with applicable law and regulation.

In developing its bylaws, the medical staff may include within the scope or responsibilities of the medical staff executive committee the authority to adopt, on the behalf of the entire medical staff, any procedural details associated with Elements of Performance 26-33 appearing in rules and regulations or policies, and amendments thereto, directly to the governing body.

When approval of procedural details associated with Elements of Performance 26-33 appearing in rules and regulations or policies is delegated to the to the medical staff executive committee, it is to represent to the governing body the organized medical staff’s views on issues of patient safety and quality of care. The organized medical staff can take action to revise the authority it has delegated to the medical staff executive committee to act on its behalf. The organized medical staff is urged to determine what steps it will take if it does not awith an action taken by the medical staff executive committee. Such steps might include a process that would allow the organized medical staff, at its direction, to extract and consider an action by the medical staff executive committee prior to the action becoming effective.

To understand these requirements, the difference between “process” and “procedural detail” needs to be explained. A process is a series of steps taken to accomplish a goal. A procedural detail describes in detail how each step in the process is to be carried out. For example, the process for credentialing licensed independent practitioners (see EP 26) can be stated in several steps such as evaluating the information, and making a decision about the information. That process will be contained in the medical staff bylaws. The procedural details associated with this process might include who collects this information, how files are kept, what organizations need to be contacted to collect all the necessary information, etc. For EPs 26 through 33, the medical staff decides whether such procedural details will be retained in the medical staff bylaws (which must be approved by the entire organized medical staff), or in rules and regulations or policies (whose approval may be delegated to the medical staff executive committee).

The significance of the medical staff bylaw scan be overstated. For this reason, the medical staff leaders should assure that all medical staff members understand the content and purpose of the bylaws, and the bylaws adoption and amendments process.

Note regarding Elements of Performance 9-33: All requirements appearing in Elements of Performance 9-33 must be in the medical staff bylaws. These require-ments may have associated proced-ural details. Any procedural details associated with Elements of Performance 26-33 must be either in the medical staff bylaws, or in rules and regulations or policies. All requirements and procedural details addressed in the medical staff bylaws must be adopted and amended by the whole of the medical staff and approved by the governing body. All procedural details addressed in rules and regulations or policies must be adopted and amended by either the whole of the medical staff or the medical staff executive committee, if so delegated by the medical staff, and approved by the governing body. (Emphasis added).

Elements of Performance for Standard MS 1.20
1) The medical staff develops medical staff bylaws, rules and regulations, and policies.

2) The medical staff adopts and amends, and the governing body approves, medical staff bylaws.

3) The medical staff or the medical staff executive committee as delegated by the medical staff adopts and amends, and the governing body approves, any rules and regulations and policies that addresses procedural details of the requirements in Elements of Performance 26-33.

4) Regardless of whether the medical staff executive committee is empowered to act on behalf of the organized medical staff, the organ-ized medical staff as a whole has the ability to adopt medical staff bylaws, rules and regulations, and policies, and amendments, thereto, and pro-pose them directly to the governing body.

5) The governing body acts in accor-dance with those medical staff bylaws, rules and regulations, and policies that are adopted by the medical staff or, as delegated by the medical staff, the medical staff executive committee, and approved by the governing body.

6) The organized medical staff enforces the medical staff bylaws, rules and regulations, and policies.

7) The medical staff bylaws, rules and regulations, and policies and the governing body bylaws do not conflict.

8) The organized medical staff and its members comply with the medical staff bylaws, rules and regulations, and policies.

9) The structure of the medical staff.

10) The process for privileging licensed independent practitioners.

11) Qualifications for appointment to the medical staff.

12) Indications for automatic sus-pension of a practitioner’s medical staff membership or clinical privileges.

13) Indications for summary sus-pension of a practitioner’s medical staff membership or clinical privileges.

14) Indications for recommending termination or suspension of medical staff membership, and/or termination, suspension, or reduction of clinical privileges.

15) The composition of the fair hearing committee. (See also EP 32.)

16) The roles and responsibilities of each category of practitioner on the medical staff (active, courtesy, etc.).

17) Requirements for performing medical histories and physical examin-ations.

18) Those practitioners who are eligible to vote on the medical staff bylaws and their amendments.

19) A list of all other positions for the organized medical staff.
20) The medical staff executive committee’s function, size, and composition; the authority delegated to the medical staff executive committee by the organized medical staff to act on its behalf; and how such authority is delegated or removed.

21) The process for selecting and removing the medical staff executive committee members.

22) That the medical staff exec-utive committee includes physicians and may include other practitioners as determined by the organized medical staff.

23) That the medical staff exec-utive committee acts on the behalf of the organized medical staff between meetings of the organized medical staff, within the scope of its respons-ibilities as defined by the organized medical staff.

24) The process for adopting and amending the medical staff bylaws.

25) The process for adopting and amending medical staff rules and regulations, and policies.

The medical staff bylaws must include the requirements in Elements of Performance 26-44. The procedural details, if any, associated with Elements of Performance 26-33 must appear either in the medical staff bylaws, or in rules and regula-tions or policies (see Elements of Performance 1-4).

26) The process for credentialing licensed independent practitioners.

27) The process for appointment to membership on the organized medical staff.

28) The process for selecting and removing the organized medical staff officers.

Corrective Actions
29) The process for automatic suspension of a practitioner’s medical staff membership or clinical privileges.

30) The process for summary suspension of a practitioner’s medical staff membership or clinical privileges.

31) The process for recommending termination or suspension of the medical staff membership and/or term-ination, suspension, or reduction of clinical privileges.

Fair Hearing and Appeal
32) The fair hearing and appeal process (see also EP 15), which at minimum shall include – The process for scheduling hearings – The process for conducting hearings – The appeal process.

Qualifications and Roles and Responsibilities of the Department Chair
33) If departments from the organized medical staff exists, the qualifications and roles and respons-ibilities of the department chair, which shall include the following:

Qualifications:
Certification by an appropriate specialty board or comparable comp-etence affirmatively established through the credentialing process.

Roles and Responsibilities:
Clinically related roles of the department.

Administratively related activities of the department, unless otherwise provided by the hospital.

Continuing surveillance of the professional performance of all ind-ividuals in the department who have delineated clinical privileges.

Recommending to the organized medical staff the criteria for clinical privileges that are relevant to the care provided in the department.

Assessing and recommending to the relevant hospital authority off-site sources for needed patient care, treatment, and services not provided by the department or the organization.

Integration of the department or service into the primary functions of the organization.

Coordination and integration of interdepartmental and intradepart-mental services.

Development and implementation of policies and procedures that guide and support the provision of care, treatment, and services.

Recommendations for a sufficient number of qualified and competent persons to provide care, treatment, and services.

Determination of the qualifica-tions and competence of department or service personnel who are not licensed independent practitioners and who provide patient care, treatment, and services.

Continuous assessment and improvement of the quality of care, treatment, and services.

Maintenance of quality control programs, as appropriate.

Orientation and continuing education of all persons in the department or service.

In conclusion, the medical staff of a hospital, as an autonomous independent body, represents an incredible source of potential power for the physician community. Armed with these new standards, physicians may finally have the leverage point to capture that potential. Therefore, every physician who holds medical staff membership should be calling for the convening of emergent medical staff meetings to join this fight, demanding the involvement and support of their colleagues and launching initiatives to preserve the potential powers imparted to them within Standard MS 1.20. To choose not to act may mean the loss of physicians’ best, and possibly last, chance at power.

Michael J. Schoppmann, Esq., Kern Augustine Conroy & Schoppmann, P.C., Attorneys to Health Professionals, has offices in New Jersey New York, Pennsylvania and Illinois and its practice is devoted to the representation of healthcare professionals. Mr. Schoppmann may be contacted at 1-800-445-0954 or via email – schoppmann@drlaw.com.