The Joint Commission approves MS.01.01.01...Finally! Now what?

Mark your calendar. After more than three years of conflict and no small amount of drama, the board of The Joint Commission this week approved the final wording of MS.01.01.01 (formerly MS.1.20). All hospitals must comply with the new version of this standard effective March 31, 2011.

To understand what this really means for medical staffs, it is important to recognize that two different forces molded MS.01.01.01 into the form in which it has finally been approved. The first is the pressure that Centers for Medicare and Medicaid (CMS) put on The Joint Commission to create standards that align with the Conditions of Participation (COP), which clearly state what must be in the medical staff bylaws. The Joint Commission had no choice but to rewrite their standard to comply with what the COPs require in order for The Joint Commission to keep its CMS deeming status. The specific requirements of the COPs regarding the bylaws are as follows:

Standard: Medical staff bylaws. The medical staff must adopt and enforce bylaws to carry out its responsibilities. The bylaws must:

1. Be approved by the governing body
2. Include a statement of the duties and privileges of each category of medical staff (e.g., active, courtesy, etc.)
3. Describe the organization of the medical staff.
4. Describe the qualifications to be met by a candidate in order for the medical staff to recommend that the candidate be appointed by the governing body.
5. Include a requirement that a physical examination and medical history be completed and documented for each patient no more than 30 days before or 24 hours after admission or registration, but prior to surgery or a procedure requiring anesthesia services. The medical history and physical examination must be completed and documented by a physician (as defined in section 1861(r) of the Act), an oromaxillofacial surgeon, or other qualified licensed individual in accordance with State law and hospital policy.
6. Include criteria for determining the privileges to be granted to individual practitioners and a procedure for applying the criteria to individuals requesting privileges.

Because of this language in the COPs, MS.01.01.01 requires that qualifications for medical staff membership, criteria for privileges, and specific requirements regarding history and physicals be “in the bylaws.” However, The Joint Commission allows medical staffs to place details associated with these elements in documents other than the bylaws, which enables medical staffs to amend these documents without requiring a vote of the entire medical staff. Over time, the field will work through what constitutes the elements that must be in the bylaws, and what constitutes a detail that can be in other documents.

The best approach is to interpret the standard as flexibly as possible to minimize the bureaucratic burden on medical staffs and those who support them. For example, a medical staff could identify the criteria for privileges that might reside in the bylaws as license, training, experience, capacity to perform, and evidence of current competence. But the details of how the medical staff puts these criteria to action and which specific criteria will apply to individual specialties could reside in the privileging forms themselves, and would not have to be placed in the bylaws.

The second set of forces that molded MS.01.01.01 into its final form are, frankly, political. The Joint Commission has gone well beyond the requirements of the COPs by focusing on medical staff self-governance in this standard and the associated elements of performance (EPs). For example, the MS.01.01.01 standard states “Medical staff bylaws address self-governance and accountability to the governing body.” However, CMS’s COPs have no requirement for medical staff self-governance. Instead, COPs state that “The medical staff must be well organized and accountable to the governing body for the quality of the medical care provided to patients.” I’ve underlined the terms “self-governance” and “well organized” because these constitute a fundamental difference between the COPs and the final form of MS.01.01.01.

In the final form of the standard, The Joint Commission details a specific form of self-governance that is about maximizing the enfranchisement of members of the medical staff. Historically, medical staffs have organized themselves in a democratically self-governed manner. In the early part of the 20th century, medical staffs were generally small enough to function as a direct democracy. As medical staffs grew, and the complexities they faced multiplied, most medical staffs evolved from direct democracies to representative republics. This is the best way to understand the roles of medical staff officers and the medical executive committee (MEC) as elected representatives of the medical staff. MS.01.01.01 makes explicit that the MEC is accountable to the medical staff as a whole, and not the other way around. The new standard also allows the medical staff to make recommendations regarding a rule, regulation, or policy directly to the governing board, essentially bypassing the MEC. This has led to the need to include an EP that requires a process to address how conflicts between the medical staff and the MEC are addressed.

The final form of MS.01.01.01 has been clearly designed to strengthen the democratic nature of medical staff self-governance. As most students of politics have recognized, democracies are slow, inefficient, and political. They depend on volunteerism, which is in serious decline in most medical staffs today. As Winston Churchill once observed, “It has been said that democracy is the worst form of government except all the others that have been tried.” In the final form of MS.01.01.01, The Joint Commission has made democracy, with all its messiness, the standard for all medical staffs in Joint Commission-accredited hospitals.

Rick Sheff, MD, CMSL is the chairman and executive director of The Greeley Company, a division of HCPro, Inc.