Articles

July, 2008

The Verdict is In: 
Joint Commission Loses Its Statutory Deeming Authority

On July 15, 2008 Congress voted to override President Bush’s veto of the Medicare Improvements for Patients and Providers Act of 2008.  In so doing, Congress revoked the unique deeming authority of the Joint Commission.

Since 1965, Joint Commission has enjoyed unique deeming status because, by Federal statute, hospitals accredited by the Joint Commission were deemed to meet the Medicare Conditions of Participation.  In 1965, the year the Medicare and Medicaid programs were established, Congress did not have much experience in the health care business.  Thus Congress deferred to the expertise of Joint Commission, a professional accreditation organization established in 1951.  Congress was so confident in the Joint Commission’s expertise that it prohibited federal authorities from issuing standards on patient health and safety for hospitals higher than comparable requirements for hospital accreditation by Joint Commission.

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April, 2008

Investigating Patient Complaints:  The High Price of Hospital Non-compliance
Lisa Venn, J.D., M.A.

Health care institutions beware!  Having a “Hear no evil; see no evil” patient complaint policy is an expensive proposition.  Just ask Oakland-based Kaiser Permanente which was fined $3 million by the California Department of Managed Care for, among other issues, failing to adequately handle, review and analyze patient complaints.  As quoted in the San Francisco Chronicle (7/27/07), the Department’s Director Cindy Ehnes, said “A patient has to be sure if they have a problem. . . the health plan has their ears open to hear those complaints and their arms available to tackle any of the problems that have arisen.  Those ears in particular seemed to be sometimes deaf.” 

A hospital which turns a deaf ear to patients’ complaints risk sanctions by the Centers for Medicaid & Medicare Services (CMS).  CMS’ Hospital Conditions of Participation (CoP) mandate the form and function of a hospital’s patient grievance program [42 CFR 482.13(a)]. If a hospital fails to comply with each and every CoP, CMS may terminate the hospital’s participation in the Medicare program. (www.cms.hhs.gov/SurveyCertificationEnforcement).

A hospital must inform patients of their right to file a complaint with the State Agency, CMS, a state’s Quality Improvement Organization (QIO), and/or the Office of Civil Rights.  Patients with unaddressed complaints, including EMTALA and HIPAA violations, may trigger investigations by these organizations.

Enforcement penalties aside, unresolved patient complaints are just bad business.   It is estimated that every unsatisfied patient tells twenty other people about his or her negative experience.  Now, disgruntled patients can shout their complaints from the mountain top of CMS’ Hospital Compare website.  The HCAHPS (Hospital Consumer Assessment of Healthcare Providers and Systems) survey asks patients about their experiences with medical, surgical or maternity care during a recent overnight stay in the hospital.  The results of these surveys are available at www.hospitalcompare.hhs.gov. 

Kaiser’s experience teaches another valuable lesson:   It’s cheaper to do it right the first time.   Kaiser estimated that it will cost over $12 million dollars to fix the problems for which it was penalized.  Heeding this lesson, health care institutions have an opportunity to implement a centralized, responsive patient complaint system in advance of enforcement penalties.   Timely resolution of patient complaints will help health care institutions avoid the cost of regulatory action and bad publicity.

 

January, 2008

Legal Privilege and Hospital Patient Grievance Records
Lisa Venn, J.D., M.A.

This article examines the issue of whether hospital patient grievance records are privileged i.e. protected from discovery when a patient sues a hospital and requests the production of the patient grievance file.

In 1999, the Health Care Financing Administration (HCFA; later renamed the Centers for Medicare and Medicaid Services or CMS) mandated that hospitals establish a patient grievance process. Effective September 19, 2005, CMS issued Interpretive Guidelines clarifying the patient grievance process, requiring hospitals to identify a grievance committee to investigate and resolve patient grievances. CMS mandated that in its resolution of the patient grievance, the grievance committee must provide the patient with written notice of its decision. This notice must include the name of the hospital contact person, the steps taken on behalf of the patient to investigate the grievance, the results of the grievance process, and the date the grievance investigation was completed. CMS also requires hospitals to document its efforts to resolve the grievance and demonstrate compliance with CMS requirements.

In the course of its investigation, the grievance committee will often incorporate into its documentation information generated by the hospital’s peer review or quality assurance committee. During its investigation, the grievance committee may also seek the direction from the hospital’s legal counsel and document the legal advice into the patient grievance record. Particularly in the case of smaller hospitals, the grievance committee might function as the hospital’s quality assurance, peer review and risk management departments.

Whether the patient grievance file is privileged may well depend upon (1) whether the federal or state court hears the case; and (2) whether the party seeking the privilege can convince the court that the grievance committee and its records fall under an available statutory privilege.

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December, 2007

Establishing a CMS Patient Grievance Process: Overcoming Hospital System Challenges
Lisa Venn, J.D., M.A.

Because of their size, complexity and volume of patient grievances, larger hospital systems face special challenges when complying with CMS patient grievance regulations. CMS requires hospitals to identify a grievance committee to investigate and resolve patient grievances. The designated grievance committee must have adequate numbers of qualified members to review and resolve the grievances the hospital receives and provide written responses as dictated by CMS and hospital policy. If the grievance committee cannot complete the investigation and resolution in seven days, it must inform the patient that it is still working to resolve the grievance, and that the hospital will follow-up with a written response within a stated number of days. In its resolution of the patient grievance, the grievance committee must provide the patient with written notice of its decision. This notice must include the name of the hospital contact person, the steps taken on behalf of the patient to investigate the grievance, the results of the grievance process, and the date the grievance investigation was completed.

The CMS definition of patient grievance is extremely broad, including concerns involving patient care, alleging abuse or neglect or pertaining to the hospital’s compliance with CMS Conditions of Participation. The CMS definition of patient grievance also includes: any Medicare billing or coverage concern, Medicare beneficiary discharge issues, any concern which a patient requests be handled as a formal complaint or grievance, a patient survey response with an attached complaint and request for resolution, and a patient survey response with attached concerns which would normally be considered a grievance regardless of whether the patient requests resolution.

CMS requires hospitals to channel the patient grievance information into the hospital’s quality improvement process.

Larger hospital systems often take a disjointed approach to processing patient grievances. Patient grievances may be handled by several departments including Finance, Clinical Risk, Ombudsman, and Legal.

To tame the grievance beast, larger hospitals must first centralize the grievance process. Ideally the governing body will select a grievance committee comprised of individuals with expertise in patient rights, hospital regulations, investigation process and conflict management. Because the hospital must educate staff and patients about the grievance process, grievance committee members should possess exceptional communication skills.

Second, hospitals must educate patients and staff about the grievance process so that grievances are identified and channeled through the grievance committee.

Third, larger hospitals may wish to identify grievance committee liaisons in other departments. Since it is the responsibility of the grievance committee to investigate, resolve and follow up with the patient, the committee may not simply refer the grievance to another department and close the grievance file. The regulatory buck stops at the grievance committee.

For instance, a patient grievance may involve a sentinel event for which a root cause analysis is required by Joint Commission standard. The hospital may have designated a department of Quality or Risk Management to perform the sentinel event investigation. The grievance committee may not simply refer the grievance to Risk Management and close the case. The grievance committee retains the responsibility to resolve and follow up with the patient.

Fourth, larger hospitals must invest in continuing education of grievance committee staff. Staff must be well-versed in subjects such as Hospital Conditions of Participation HIPAA, EMTALA, ADA, Medicare billing and advance directives. An educated and well-trained grievance staff is essential to the successful investigation and resolution of patient grievances.

Finally, larger hospitals may wish to computerize the grievance record-keeping process. A grievance database will assist larger hospitals in complying with grievance extension and follow up deadlines, and reporting for quality improvement purposes.

December, 2007

Ambulatory Surgery Centers’ Patient Grievance Process
Lisa Venn, J.D., M.A.

In August 2007, the Centers for Medicare & Medicaid Services (CMS) responded to a 2002 Congressional report calling Ambulatory Surgical Centers (ASCs) a “System in Neglect.” CMS proposed new ASC patients’ rights which include a mandate that ASCs establish a patient grievance process.

With history as a guide, ASCs should expect the proposed standards to become reality. In recent years, CMS has mandated that, in order to participate in the Medicare program, a nursing home or hospital must establish a patient grievance process. In many respects, the proposed ASC patient grievance process mirrors the hospital patient grievance regulation.

Like hospitals, ASCs will be required to investigate, document and respond to all grievances made by a patient or the patient’s representative. Grievance is broadly defined as including, but not limited to, mistreatment, neglect, verbal, mental, sexual or physical abuse, and theft of personal property. ASCs will be required to specify time frames for review and response to grievances. As are hospitals, ASCs will be required to provide patients with written notice of the ASC’s decision, ASC contact person, the results of the grievance process and the date the grievance process was completed. Under both hospital and ASC regulations, Medicare patients are provided extra protection by accreditors and State agencies. Like hospitals, ASCs will be required to inform patients and educate staff about patients’ rights and the grievance process.

When planning for the future, ASCs need only look to their nursing home and hospital counterparts. CMS has consistently required providers to establish a patient grievance process as part of quality improvement and patient safety. ASCs should plan, sooner rather than later, to establish a patient grievance process.

All of the proposed new rules for ASCs can be found at: http://www.cms.hhs.gov/center/asc.asp

Now You See It; Now You Don’t: Joint Commission’s Deeming Authority is Safe for Now
By Lisa Venn, J.D., M.A.

Well, it was there. The House of Representatives version of The Children’s Health and Medicare Protection (CHAMP) Act for SCHIP (State Childrens Health Insurance Program) funding, called for the revocation of the Joint Commission deeming authority. The Senate’s version did not. When the House and Senate hammered out a final version, Joint Commission wasn’t mentioned anywhere.

This Joint Commission legislative Houdini act is a curious thing. It seems that the fate of the nation’s most influential health group would really raise a raucous. After all, Joint Commission collects $113 million in annual revenue, mainly from the fees it charges hospitals for telling them whether they comply with federal regulations. Deeming authority means that if Joint Commission gives its seal of approval to a hospital, CMS is satisfied that the hospital is following federal regulations. In other words, hospitals enrolling in the accreditation program only have to please one master. And that master is really nice, accrediting 99% of all hospitals it surveys.

We may never know what happened behind Houdini’s curtain, but one thing’s for sure: the whirlwind romance between the federal government and Joint Commission has lost its sparkle. When Congress first established Joint Commission’s deeming authority in 1965, Congress prohibited federal authorities from issuing standards on patient health and safety for hospitals higher than comparable requirements for hospital accreditation by Joint Commission. Pub. L. No. 89-97 § 102 (a), 79 Stat. 286, 316 (1965). Congress, not having much experience in the health care business, deferred to the expertise of professional accreditation organizations sponsored by medical and hospital associations.

The honeymoon period was short lived.

Subsequent legislation removed the prohibition and required Joint Commission to demonstrate that its standards were at least equivalent to any such higher standards issued by the Secretary in order to have deeming authority in that area. Pub. L. No. 92-603 §244 (c), 86 Stat. 1329, 1423 (1972).

In July, 1999 the Department of Health and Human Services Office of Inspector General published a report "The External Review of Hospital Quality. A Call for Greater Accountability." The report concluded that Joint Commission surveys are unlikely to detect substandard patterns of care or individual practitioners with questionable skills. The report concluded that HCFA (later renamed CMS) did little to hold Joint Commission accountable for its performance overseeing hospitals

This report recommended that HCFA review the unique deeming authority of Joint Commission. The Office of Inspector General recommended that "the granting of this unique status should not be for perpetuity, without accountability for performance." This same report acknowledged that HCFA already had the regulatory authority to review the deeming authority when validation survey results reach a certain disparity rate. 42 CFR 488.8 defines a 20% disparity rate between the accrediting organization and the State agency as a trigger for a deeming authority review. However, at the time of the publication of the 1999 report, the 20% disparity rate had never been reached. The Inspector General recommended that HCFA from time to time assess whether the Joint Commission’s performance continued to warrant its unique deeming authority and to report its conclusions to Congress as part of an annual report or otherwise. The report noted that any change in this status would depend upon Congressional action.

Between the years 2000 and 2002, the disparity rate between Joint Commission and the state agency was 78 %. The Government Accountability Office (GAO) concluded in its July, 2004 report "that Congress should consider giving CMS the same kind of authority over (Joint Commission’s) the hospital accreditation program that it has over all other accreditation programs."

Apparently when hashing out the CHAMP Act, Congress did consider Joint Commission’s deeming authority. And then, abracadabra, it didn’t.

August, 2007

Joint Commission's Deeming Authority Under Fire

By Lisa Venn, J.D., M.A.

This month the U.S. House and Senate passed different versions of The Children’s Health and Medicare Protection Act of 2007, which amends titles XVIII, XIX, and XXI of the Social Security Act to extend and improve the State Children's Health Insurance Program (SCHIP). The two bills must be reconciled in conference before being sent on to the President for signature. House and Senate conferees are expected to be named after Congress returns from its August recess. Mr. Bush has threatened to veto both versions of the bill. (Washington Watch provides a detailed summary.)

Although the bill has evoked considerable comment and controversy, one seemingly unrelated provision in the House version, cited as Section 507, has gone largely unnoticed.

H.R. 3162, Section 507: Revocation of Deeming Authority of the Joint Commission on Accreditation of Healthcare Organizations (JCAHO). Repeals JCAHO's unique statutory protection, effective eighteen months after enactment.

As The Children’s Health and Medicare Protection Act of 2007 sails through Congress, the Joint Commission’s deeming authority may be sinking in its wake. Section 507 of the House Bill revokes the unique statutory protection and deeming authority that the Joint Commission (formerly Joint Commission on Accreditation of Healthcare Organization or JCAHO) enjoys under existing Federal law. The significance of this revocation seems lost in the hoopla surrounding the pending passage of this bill.

Read the full text of Joint Commission's Deeming Authority Under Fire

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