The Joint Commission

November 17, 2022

Posted on by Courtney Patterson

QUESTION:
As we can see from The Joint Commission at Work snippet, it looks like The Joint Commission expanded the appointment term for practitioners to three years from two years.  What should we consider if we are interested in moving to three-year appointment terms?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY CHARLES CHULACK:
Per the November 4, 2022 FAQ “How are reappointment/re-privileging dates determined?” The Joint Commission instructed that “[r]eappointment/re-privileging is due no later than three years from the same date from the previous appointment or reappointment, or for a period required by law or regulation if shorter” (emphasis added).  The FAQ notes that “[a]dditional information will be published in the December 2022 Perspectives Newsletter regarding a change to the reprivileging/reappointment time frame.”  Thus, it is not clear if this rule has been finalized, especially since the standards available continue to require a two-year appointment period.  Nonetheless, before you move in the direction of allowing a longer appointment term, you should confirm that your state hospital licensing regulations permit a three-year term.  For example, both Idaho and North Carolina regulations require two-year appointment terms.  As the quoted language from the FAQ above states, the appointment term may be shorter than three years “if required by law or regulation.”  In other words, state hospital law or regulation will control so you want to be sure to check that first.  Also, when The Joint Commission implemented the Ongoing Professional Practice Evaluation (“OPPE”) standard, they considered doing away with the reappointment process.  The Joint Commission’s rationale was that a well‑functioning OPPE process, which requires “ongoing” monitoring of clinical care and other factors, would render reappointment unnecessary.  The Joint Commission never did away with the reappointment process.  However, you should evaluate whether you have a well-functioning OPPE process that catches issues and trends quickly, allowing you to act, intervene, and protect patients.  If not, it may be wise to maintain the shorter reappointment term of two years to take a closer look at practitioners’ clinical practice and professionalism at the Hospital.

Stay tuned – Horty, Springer & Mattern plans to do a podcast on the issue and provide additional information.

September 8, 2022

Posted on by Courtney Patterson

QUESTION:
Can the medical staff of a critical access hospital be part of a unified medical staff within a multi-hospital system?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY DAN MULHOLLAND:
As of the date of this e-mail (September 8, 2022), the answer is no, but a change could be in the works soon.  In 2014, the Centers for Medicare & Medicaid Services (“CMS”) revised the Medicare Conditions of Participation to allow a “unified and integrated” medical staff in hospitals that are part of a health system.  Previously, CMS had required that each hospital have its own separate medical staff.  In the past, even if medical staffs in a system had overlapping membership, CMS required that the medical staffs be “separate.”  However, the CMS Interpretive Guidelines provide as follows:

[A] hospital system that includes certain types of hospitals, i.e., Hospitals-within-Hospitals or Hospital Satellites, that are being paid under a Medicare payment system other than the Hospital Inpatient Prospective Payment System (IPPS) might jeopardize the Medicare payment status of those excluded hospitals if it owns both the tenant and host hospitals and uses a unified medical staff for both.  (Emphasis added.)

42 CFR §482.22(b)(4).  This effectively prevented CAHs from being part of a unified medical staff within a system.  CMS reiterated this rule in 2017 when it approved an application from The Joint Commission to have deemed status for surveys of CAHs. 82 Fed. Reg. 49,817, 49,818 (Oct. 27, 2017).

However, on July 6, 2022, CMS proposed that this prohibition be lifted and that medical staffs of CAHs be permitted to be part of a unified medical staff within a multi-hospital system subject to essentially the same rules (e.g., opt-in and opt-out rights, consideration of local circumstances, etc.) that apply to unified medical staffs within PPS hospitals. 87 Fed. Reg. 40350, 40376.  Comments closed on August 29, 2022, so the proposal may be final at any time now.  Stay tuned for further developments in the Health Law Express.

May 12, 2022

Posted on by Courtney Patterson

QUESTION:
Due to the long time needed for a physician with behavioral complaints to go through the collegial efforts and progressive steps (e.g., collegial meetings, letters, performance improvement plans, etc.), staff are often left with the impression that Hospital and Medical Staff Leaders are not addressing the problem and “the physician is getting away with his bad behavior again.”  This destroys morale and it makes everyone reluctant to report concerns.  Do you have suggestions?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY SUSAN LAPENTA:
This is a great question.  In our experience, nursing and other hospital staff are typically reluctant to report concerns, especially about behavior.  We also know that the reports that get filed are typically “the tip of the iceberg.”  This is supported by The Joint Commission’s Sentinel Event on Behaviors that Undermine a Culture of Safety, which was first published in July 2008 and was updated in June 2021.

It is even harder for staff to file a report if they think they are being ignored or if nothing has been done about reported concerns in the past.  At the same time, addressing behavioral concerns (just like addressing clinical or health concerns) is part of the peer review process and is confidential and privileged.  That doesn’t mean that leaders can’t get back to the person who filed the report.  In fact, we recommend, as a “best practice,” that leaders try to always follow-up with a person who has filed the report or complaint.

The follow-up is important because you will often get additional meaningful information when you talk with the person who filed the report.  For instance, you might learn that the complained of behavior “happens all the time” or that others have been subject to the same behavior by the same physician.  You might also learn the names of additional people who witnessed the incident or who have relevant information.  Any new information should also be documented.

But beyond getting additional information, talking to the person who reported the concern is important because it is your chance to reassure the person that they have been heard.  You can thank the person for coming forward and remind them that documentation is necessary so that action can be taken.  You can also let them know their report has been reviewed by Medical Staff Leadership and that appropriate action will be taken.

You can also let the person know that retaliation of any sort against them for filing a report will not be tolerated and they should report immediately if they think they are being retaliated against in any way.  It’s also a good idea to let them know that their identity has not been disclosed.

Additionally, you can tell the person who filed the report that the Medical Staff deals with concerns about behavior as part of its peer review process and that the process is confidential and privileged according to hospital policy and state law.  You can explain that you are not at liberty to share the results of the peer review process with them, but you can reassure them again that they have been heard and that action is being taken.

You may want to follow-up with a note or e-mail.  This will reinforce the information you provided and it will also give you a chance to remind the person of the important role that they play in addressing concerns (it is difficult to correct a problem without a written report or complaint) and the need for them to continue to report incidents in the future.

May 7, 2020

Posted on by hortyspringer

QUESTION:          In an effort to manage exposure during the COVID-19 pandemic, we are trying to expand the use of telehealth throughout our system.  Do we need to grant “telemedicine privileges” to Medical Staff members who have already been credentialed and privileged before the pandemic started if they are now using telehealth to treat patients remotely? We are Joint Commission accredited. 

 

ANSWER:           This question seems to be coming up a lot.  Fortunately, The Joint Commission has given out some good guidance on how to handle this issue during the COVID crisis.  In an FAQ document, The Joint Commission has advised:

“Licensed Independent Practitioners (LIP) CURRENTLY credentialed and privileged by the organization, who would now provide the same services via a telehealth link to patients, would not require any additional credentialing or privileging. The medical staff determines which services would be appropriate to be delivered via a telehealth link. There is no requirement that ‘telehealth’ be delineated as a separate privilege.” (Emphasis added.)

This Standards FAQ can be found here.


In light of this guidance, there does not appear to be a need to grant telemedicine privileges to physicians or other practitioners who have already been granted clinical privileges simply because they are now delivering services via telehealth.  In light of the statement that the “medical staff determines which services would be appropriate to be delivered via a telehealth link,” it may be prudent to have your MEC weigh in on what services can be provided in this fashion.