Mid-Atlantic Health Law TOPICS

A version of this article was published in The Daily Record on December 6, 2011.

After a long and tumultuous process, medical staff standard MS 01.01.01 (formerly MS 1.20), which sets forth governance and accountability requirements for a hospital's medical staff, went into effect on March 31, 2011.

A. Background

The Joint Commission (JC) is the accreditation body that accredits hospitals for Medicare participation, and for licensing in most states. As a part of its accreditation process, the JC sets standards that hospitals must meet, including how the hospital interacts with its medical staff - the licensed medical practitioners that provide care at the hospital.

The medical staff's primary purpose is to credential physicians to allow them to treat patients at the hospital, and to oversee the quality of care provided by the physicians at the hospital. Historically, the medical staff operated autonomously from the hospital, and the hospital's administration had little formal control over the medical staff or its functions, notwithstanding that the hospital's board of directors is ultimately responsible for the quality of care provided at the hospital.

During the later part of the 20th century, however, many medical staffs began to delegate much of their authority to their medical executive committee (MEC), which is a committee of representatives of the medical staff. Delegating authority to the MEC can lead to more efficient operations, since actions can be taken by the MEC without the necessity of bringing together the entire medical staff.

Over time, hospitals have been able to exert considerable influence over the members of a MEC - by supplying staff to the MEC, by offering paid hospital directorships or exclusive contracts to MEC members, or by employing physicians on the MEC.

As a result of these tensions, the JC proposed revisions to MS 1.20 in 2004, and again in 2007. Both revisions were met with resistance and criticism from both hospital and physician groups. In response, the JC recommended new revisions to the standard in March of 2009, and approved the new MS 01.01.01 on March 18, 2010.

B. Balance of Power

MS 01.01.01 consists of 36 Elements of Performance (EPs). EPs 1 through 11 include general provisions with respect to the powers of the medical staff and the relationships among the medical staff, the MEC and the hospital. These include, among other things, the requirement that medical staff bylaws be adopted by the medical staff and approved by the hospital board.  Moreover, the medical staff can propose adoption of, or amendments to, medical staff bylaws, rules and regulations and policies directly to the hospital's board, without MEC approval.

MS 01.01.01 also gives the hospital and the medical staff the option to put "associated details" in documents other than the bylaws, such as rules, regulations or policies, as long as the bylaws contain at a minimum "the basic steps" of the matter at issue.

In addition, if the medical staff delegates to the MEC the authority to adopt or amend rules, regulations or policies, MS 01.01.01 requires the MEC to notify the medical staff of proposed rules or regulations prior to their adoption. (Policies may be changed without prior notification.)

Further, the medical staff's bylaws, rules, regulations and policies must be compatible with the hospital's bylaws and policies, and all must be compliant with applicable law.

C. Other Requirements

EPs 12 through 36 contain the requirements that must be included in the medical staff's bylaws. Some of these EPs include provisions that are required by the Medicare Conditions of Participation (CoP). Specifically, MS 01.01.01 requires the following to be included in the medical staff's bylaws:

1. Structure of the medical staff and the qualifications for appointment to the medical staff (CoP requirement), and the process for appointment and re-appointment to the medical staff;
2. The process for privileging and re-privileging practitioners (CoP requirement);
3. The duties and privileges related to each category of the medical staff (active, courtesy, etc.) (CoP requirement);
4. Requirements for completing and documenting medical histories and physical examinations (CoP requirement);
5. Description of members of the medical staff who are eligible to vote;
6. A list of the officer positions of the medical staff, and the process by which the officers are selected and removed;
7. The MEC's function, size and composition (including that the MEC must include physicians and may include other practitioners or individuals), the authority delegated to the MEC, and how such authority is delegated, and the process for selecting and removing MEC members;
8. The MEC's ability to act on behalf of the medical staff between meetings, within the scope of its responsibilities defined by the medical staff;
9. The process for adopting and amending the medical staff bylaws, rules, regulations and policies;
10. The process for credentialing and re-credentialing practitioners;
11. Indications for automatic and summary suspension of a practitioner's medical staff membership or clinical privileges, as well as indications for recommending termination or suspension of medical staff membership or clinical privileges, and the processes for such actions; and
12. A fair hearing and appeal process, which at a minimum must include the process for scheduling hearings and appeals, the process for conducting hearings and appeals, and the composition of the fair hearing committee.