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Is your hospital a member? Click here to find out. In this issue:
CMA ON-CALL Throughout this publication, you will find references to “CMA On-Call” documents. On-Call is an online library that contains over 4,500 pages of medical-legal, regulatory, and reimbursement information. On-Call documents are available free to individual CMA members at the members-only website. Nonmembers can purchase On-Call documents for $2 per page in the CMA bookstore.
Don't Let Your OMSS Membership Lapse; Renew Today! OMSS membership for 2009 will expire on December 31, 2009 and CMA is now accepting membership renewals for 2010. The CMA Organized Medical Staff Section (OMSS) represents over 130 California hospital medical staffs and advocates for strong medical staff self-governance and quality patient care. Our members know that OMSS memberships support CMA legislative advocacy, policy development, and legal action on medical staff issues. For 2010, OMSS members will receive even more benefits and resources. These benefits include:
TAKE ACTION: To prevent any interruption in your OMSS membership benefits, please complete and submit your OMSS application and membership dues as soon as possible. MORE INFORMATION: The 2010 OMSS application and list of benefits are available here.
Organized Medicine Requests Clarification on Joint Commission Definition of Physician The American Medical Association, American Osteopathic Association, and state medical societies have sent a letter requesting that the Joint Commission clarify its revised definition of the term "physician" to be limited to individuals who have received a Doctor of Medicine or a Doctor of Osteopathic Medicine degree, or an equivalent degree of medicine following successful completion of a prescribed course of study from an international school of medicine. The Joint Commission recently changed the definition of "physician" to align its definition of terms with the Centers for Medicare and Medicaid Services (CMS). The CMS definition relied upon by the Joint Commission is primarily for reimbursement purposes rather than any scope of practice, licensure, accreditation or other purpose. (See §1861 [42 U.S.C. 1395x] of the Social Security Act). However, the Joint Commission's definition does not make this distinction. The letter requests that the Joint Commission make the appropriate change to the definition or add a footnote that states that the definition aligns the Joint Commission with the Centers for Medicare and Medicaid Services. The language reflects §1861 [42 U.S.C. 1395x] of the Social Security Act, and the definition is for purposes of reimbursement only. It is meant to neither expand nor retract any health care practitioner's scope of practice, licensure, or for any other purpose.
LEGAL UPDATE— Medical Staffs Bear the Burden of Proof When Suspending or Restricting Privileges for Applicants with Temporary Privileges A Court of Appeal recently concluded that a medical staff peer review body erred in concluding that an anesthesiologist had the burden of proving that she did not mishandle controlled substances as part of the peer review action taken against her. In Bode v. Los Angeles Metropolitan Medical Center (2009) 174 Cal.App.4th 1224, 94 Cal.Rptr.3d 890, a physician who applied for medical staff membership was granted a 90-day temporary practice privilege while her application was pending. During this 90-day period, issue arose concerning the mishandling of certain controlled substances, and the physician's temporary staff privileges were summarily suspended. The judicial review committee in this case was unsure as to whether to place the burden of proof on the physician or the peer review body so it decided the case in the alternative, that is, if the burden was placed on the physician, the JRC found, she failed to produce sufficient evidence of her qualifications for medical privileges. On the other hand, when it placed the burden of proof on the peer review body, the JRC found that the decision to suspend and not renew the physician's temporary privileges was not reasonable or warranted. The appellate review committee ruled as a matter of law that the physician was nothing more than an initial applicant who bore the burden of proof. The trial court ruled that the appellate review committee erred when it placed the burden of proof on the physician and the Court of Appeal affirmed. The Court of Appeals concluded that once a physician has been granted privileges, even temporary ones, the medical staff assumes the burden of proof at any hearing to justify taking action against those privileges for a medical disciplinary cause or reason. The court's rational was as follows: In the case of a first time applicant (such as Bode), a decision to reject an application due to a medical disciplinary cause or reason obviously must rely on reports of misconduct or other negative incidents that occurred in the past at some other health facility. If a hospital is considering rejecting an applicant based on such information, the hospital cannot reasonably be expected to prove those incidents, and it therefore makes sense to place the burden on the initial applicant to produce sufficient information to disprove them. In other situations, when a licensee is working at a health facility under some arrangement, a decision to terminate that arrangement for a medical disciplinary cause or reason in all likelihood is based on recent conduct occurring while the licensee was at that hospital pursuant to that arrangement. In such cases, the hospital can bear the burden of proof because it will have control over and access to all the relevant witnesses and information. (Id. at 1237.) This case provides considerable guidance to peer review bodies taking action against individuals with temporary privileges. MORE INFORMATION: For more information, see CMA ON-CALL document #1410, "Peer Review - Fair Hearing Requirements."
CMA to Develop Policy on Privileging Low and No Volume Physicians The hospital privileging process has become more difficult for many physicians, due to factors such as:
The 2009 CMA House of Delegates approved a resolution to study the privileging process and report back with recommendations on establishing guidelines for privileging "low and no volume" physicians. As part of this study, we are asking medical staffs to share their bylaws, policies, and procedures for privileging low and no volume physicians. TAKE ACTION: Please submit copies of your medical staff bylaws, policies and procedures that address privileging physicians who have low or no clinical activity at the hospital and the extent to which these physicians are allowed to participate in medical staff activities.
Joint Commission Task Force Reaches Consensus on MS 01.01.01 (Formerly MS 1.20) At its June 2007 meeting, the Joint Commission's Board of Commissioners approved revisions to the hospital Medical Staff Standard MS.1.20 related to medical staff bylaws and associated rules and regulations and policies. The Joint Commission received concerns received from professional organizations and hospitals, specifically that the new standard required too many details in the bylaws; the cost and burden associated with changing bylaws; the potential for disrupting relationships between the medical staff and governing body; and the role of the medical executive committee. The Joint Commission Board established an 18-member task force to analyze the potential impact of implementing the revised standard. The task force, which was convened in January 2008, consists of representatives from medical and hospital associations and hospital leaders representing administration, medical staff, and hospital trustees. The task force focused its discussions on several key issues, including:
1. The requirements set forth in Elements of Performance 12-36 must be in the medical staff bylaws. For those EPs involving a process, the medical staff bylaws must include the basic steps required for implementation of the requirement. Associated details may reside in the medical staff bylaws, rules and regulations or policies as determined by each hospital's organized medical staff and governing body. 2. If the organized medical staff delegates authority to the medical executive committee concerning the details related to EPs 9-33 (contained in rules or regulations), they must be informed of proposed amendments and have the opportunity to respond prior to submission of proposals to the governing body. For minor details contained in policies, they simply need to be informed about the amendment. A reciprocal process is proposed so that when the organized medical staff proposes an amendment, they consult with the medical executive committee before a proposed change is brought to the governing body. In March 2009, the task force reached consensus and unanimous agreement on a totally new "draft" standard that would replace the current MS.01.01.01. Comments will be gathered for 6 weeks beginning on December 17, 2009 and ending on January 28, 2010. The Joint Commission's Board of Commissioners has authorized a formal field review to provide all interested parties an opportunity to comment on the proposal. Hospitals are currently expected to be in compliance with Medical Staff standard MS.01.01.01 (the standard number changed due to the Standards Improvement Initiative) in the 2009 Hospital Accreditation Manual. The current standard will remain in effect until further notice. There is an indefinite moratorium on the implementation of Element of Performance 19 of the current MS.01.01.01. TAKE ACTION: The Joint Commission is distributing the revised version of MS 01.01.01 for field review. To review the draft and submit comments, please go to The Joint Commission website.
California OMSS Delegation Participates in 2009 AMA-OMSS Interim Meeting A delegation of physicians representing CMA's Organized Medical Staff Section participated in the 2009 AMA-OMSS Interim Meeting in Houston, Texas, from November 5-7. The California OMSS delegation introduced a resolution requesting that AMA develop materials for physicians that will assist them in developing models for regional medical corporations. This resolution was approved by the AMA House of Delegates. In addition, as a result of advocacy from the California delegation, the AMA report on the Model Code of Conduct report was sent back to the AMA governing council for further review and revision, taking into account the CMA model code of conduct policy as a model. The AMA-OMSS interim meeting also included educational presentations on accountable care organizations, employment contracting, and physician-led organizations. TAKE ACTION: Mark your calendars for the AMA-OMSS annual meeting, which will be held June 10-12, 2010 in Chicago, IL. All medical staffs are encouraged to designate an OMSS representative to attend the AMA-OMSS annual meeting. MORE INFORMATION: Materials from the AMA-OMSS interim meeting is available at the AMA website.
Disruptive Behavior and Self-Governance Revisions in 2010 Medical Staff Bylaws The 2010 CMA Model Medical Staff Bylaws will include new sections on disruptive behavior and medical staff governance. These new sections were developed by the OMSS Assembly and approved by the CMA House of Delegates in October 2009. The disruptive behavior policy has received a positive response from OMSS members because it meets the Joint Commission standard for a code of conduct policy, but still provides sufficient flexibility to ensure that the procedure does not result in inappropriate disciplinary action against physicians. Specifically, the policy provides brief examples to define acceptable and disruptive conduct; directs the Chief of Staff and the Department Chair to investigate the complaint and dismiss the complaint if it is without merit; and provides flexibility to determine consequences based on the nature of the complaint. Physicians throughout California expressed concern about the potential lack of self-governance of their medical staffs and asked for specific guidance as to how they could regain that right in order to protect patient care. While CMA has already done much in the way of promoting self-governance, the OMSS believed that CMA policy needs to be expanded to include additional mechanisms to achieve it. Physicians throughout California made additional suggestions for mechanisms to enhance a medical staff's ability to be self-governing. The new bylaws include extensive provisions related to reforming the medical staff nomination and election process; increasing the transparency of Medical Executive Committee activities; establishing a stronger role for the medical staff with respect to providing input to hospital policy; and identifying and resolving potential conflict of interests among medical staff leadership. TAKE ACTION: The 2010 edition of the CMA Model Medical Staff Bylaws will be available in January 2010. Remember to renew your OMSS membership to receive the 2010 Model Medical Staff Bylaws.
State Revives Regulations that Would Expand Scope for Nonphysician Practitioners The California Department of Public Health (CDPH) issued a second 15-day comment period for proposed regulations that would expand the scope of practice of psychologists and potentially all other health care practitioners working in licensed health care facilities. Although the California Office of Administrative Law rejected the regulations in October, state law allows CDPH to submit a revised proposal within 120 days. While the portions of the regulatory proposal to weaken medical staff self-governance have now been abandoned by the Department, the proposed regulations still could, among other things, allow nonphysician practitioners to admit patients, perform medical examinations, place patients in restraints, complete medical records, coordinate care, and order transfers. CMA continues to vigorously oppose the proposed regulations and has submitted comments outlining our serious concerns with the regulations as written. More Information: text of the proposed regulations is available at CDPH website.
New Laws of Interest to Medical Staffs Despite a barrage of Governor vetoes, the 2009 legislative session produced ample, and at times, significant changes to laws affecting medical staffs. See the summary of the most significant legislation enacted, along (where relevant) with references to the most relevant ON-CALL document that discusses the topic in more detail.
11 CA Hospitals Fined for Patient Safety Violations The California Department of Public Health (CDPH) announced that on September 24, 2009, that eleven California hospitals have been assessed administrative penalties of $25,000 per violation for non-compliance with licensing requirements that caused, or was likely to cause, serious death or injury to patients. This last set of fines was the seventh of a series of penalties against hospitals pursuant to Health & Safety Code §1280.1, the provision that allows CDPH to assess fines where there has been a deficiency that constitutes an "immediate jeopardy to the health or safety of a patient." Deficiencies include a variety of patient safety violations, including surgical protocols that result in foreign objects being left inside a patient. The violations that resulted in the most recent round of penalties included:
TAKE ACTION: Medical staffs should work with hospitals to regularly review patient safety plans to ensure compliance with state licensure laws. According to the law, the safety plan must, among other things, provide for the establishment of a patient safety committee as well as a process for a team to conduct analyses, including but not limited to, root cause analyses of patient safety events. It is critical that such a committee be a formally organized committee of the medical staff so that it can receive the confidentiality and immunity protections under California law. FOR MORE INFORMATION: For more information on peer review immunity protections, see CMA ON-CALL document #1425, "Peer Review Protections – Executive Summary."
OMSS Elects Executive Board Members Elections for several OMSS Executive Board positions were held at the 2009 OMSS Annual Assembly. The OMSS Executive Board is responsible for the planning and oversight of section activities, and reports periodically to the House of Delegates and to the Board of Trustees. The 2009-2010 OMSS Executive Board members are: Lytton Smith, MD (Chair). Dr. Smith is a family practice physician and is currently Chief of Staff at St. Jude Medical Center in Yorba Linda, CA. He previously served as Secretary for the OMSS Executive Board. Damodara Rajasekhar, MD (Vice-Chair). Dr. Rajasekhar practices neonatal-perinatal and pediatric medicine and is the OMSS representative for Victor Valley Community Hospital in Apple Valley. Marshall Morgan, MD (Secretary). Dr. Morgan practices emergency medicine and is currently serving as Chief of Staff at the Ronald Reagan UCLA Medical Center in Los Angeles. Robert Pugach, MD (CMA Board of Trustees). Dr. Pugach is a urologist and serves as the OMSS representative for Community Hospital of Long Beach. He serves as Vice-Chair of the American Medical Association's Organized Medical Staff Governing Council. John Luster, MD (Delegate). Dr. Luster practices family medicine and currently serves as Chief of Staff for Chapman Medical Center in Orange. Richard Rajaratnam, MD (Delegate). Dr. Rajaratnam practices head and neck surgery and currently serves as the Area Medical Director for the Southern California Permanente Medical Group. William Carlson, MD (Alternate Delegate). Dr. Carlson practices family and emergency medicine and is the OMSS representative for Mad River Community Hospital in McKinleyville. Richard Butcher, MD (Alternate Delegate). Dr. Butcher practices family medicine in San Diego and is the OMSS representative for Alvarado Hospital. TAKE ACTION: The OMSS Executive Board encourages active participation from OMSS representatives on important issues impacting organized medical staffs. To contact an OMSS board member or to find out more about OMSS Executive Board meetings, please contact the CMA OMSS office at medstaffhelp@cmanet.org. |
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