Health Law

After being put on ice last year, the Joint Commission's standard regarding medical staff bylaws, the medical executive committee (MEC) of a hospital's medical staff, and associated rules and regulations and policies (MS.01.01.01, formerly known as MS.1.20) is moving forward.  The revised draft of MS.01.01.01 was released for a six-week comment period ("field review") yesterday.

The key issues with the prior draft -- especially the need to include all substantive provisions of medical staff governing documents in the medical staff bylaws (see discussion in the linked post from last year) -- have been addressed in the new draft.  The question remains whether the revisions are sufficient.  While there is acknowledgment that not everything needs to be in the bylaws, plenty does, and the line of demarcation is not crystal clear.  Check out one of the FAQs (#5):

All ?requirements? for EPs 12-36 must now be in the bylaws. For those EPs12-36 that require a process, the medical staff bylaws must include at a minimum the basic steps, as determined by the organized medical staff and approved by the governing body. The ?associated details? for EPs 12-36 may reside in the medical staff bylaws, rules and regulations, or polices. The organized medical staff adopts what constitutes the associated details, where they reside, and whether their adoption can be delegated to the medical executive committee. EP 14 refers to the process for privileging and reprivileging licensed independent practitioners. Does this mean that all of the associated details to obtain privileges, such as the need to have successfully performed ?x? number of laparoscopic cholecystectomies, must now be in the bylaws? Exactly what details or criteria must be in the bylaws and what should be in other documents?

Each hospital?s medical staff and governing body must decide what degree of detail needs to be in the bylaws?the critical issue being what must be jointly approved by the governing body and the organized medical staff. For example, a medical staff and governing body may wish to set a critical level of requirements that must be listed in the bylaws (with respect to credentialing or privileging)?such as board certification, valid license, and National Practitioner Data Bank query. As for the number of times a certain procedure must be performed before privileges are granted (for example, the number of times a laparoscopic procedure is performed), this requirement would be the type that might better be met by an individual department (e.g., surgery, family practice, etc.) and thus kept in rules and regulations or other documents?but this is up to each organization?s medical staff and governing body. With respect to a practitioner performing a new procedure (e.g., laparoscopic bariatric surgery), the bylaws could set a ?bright line? that needs to be met?for example, that the physician be trained in a recognized program; that the physician successfully complete the program; that recommendations from peers be sent to the hospital; and that the physician be competent. The more specific details, such as the number of procedures to be performed, might then be determined by the particular department and placed in rules, regulations, or policies. Again, this is up to each medical staff and governing body.

Thus, while there are some improvements here, there is still room for further improvement.  Check out the full draft, the FAQs and the call for comment on MS.01.01.01 at the JC website (or here: draft MS.01.01.01, draft definitions, FAQs).  Given the statement of support for this draft posted on the Joint Commission's website, some observers believe that adoption as written is likely.  Time to get ready to work on hospital medical staff bylaws, and to get creative about the MEC - medical staff balance of power.

David Harlow
The Harlow Group LLC
Health Care Law and Consulting