CMS issued its final revisions to the Medicare Conditions of Participation (COP) on May 7, 2014. The revised COP allows for a unified and integrated medical staff shared by multiple hospitals within a hospital system. It also removes the requirement that a medical staff member serve on the governing board and replaces it with a “direct consultation” requirement for an individual responsible for the organized medical staff. In addition, the revised COP also clarifies that a hospital’s medical staff may include non-physician practitioners who are determined to be eligible for appointment by the governing body in accordance with state laws. 79 FR 27105-27157 (May 12, 2014).
Unified and Integrated Medical Staff Model
CMS modified its proposed prohibition on the use of a unified and integrated medical staff for a multi-hospital system to enable the medical staff of each hospital to voluntarily integrate itself into a larger system medical staff. CMS sets basic parameters to hold a hospital responsible for showing that it actively addresses its use of a unified and integrated medical staff model but leaves the specifics up to the medical staffs and governing bodies. (42 C.F.R. § 482.22(b)(4)(i)-(iv).)
First, in an effort to preserve medical staff self-governance, CMS requires that the medical staff at each separately certified hospital in the system determine, by majority vote, whether to participate in a unified and integrated medical staff structure or to opt out of such a structure. Second, CMS requires the unified and integrated medical staff to have bylaws, rules and requirements that describe its processes for self-governance, appointment, credentialing, privileging, and oversight, as well as its peer review policies and due process rights guarantees. These governing documents must include a process for the members of the medical staff of each separately certified hospital to be advised of the medical staff’s right to opt out of the unified and integrated medical staff structure after a majority vote by the members. Third, CMS requires the unified and integrated medical staff to be established in a manner that takes into account each hospital’s unique circumstances and any significant differences in patient populations and services offered in each hospital. Finally, CMS requires the unified and integrated medical staff to give due consideration to the needs and concerns of members of the medical staff, regardless of practice or location. Also, the hospital must have mechanisms in place to assure that issues localized to particular hospitals are duly considered and addressed.
In California, a unified and integrated medical staff is permissible as long as each hospital meets its obligations to ensure that the individual needs of the particular hospital are met. When each hospital grants privileges, the privileges must be limited to procedures performed at each individual hospital. Further, its approved services and the constraints must be delineated in the medical staff bylaws applicable to each hospital.
Removal of Requirement for Medical Staff Member to Serve on Hospital’s Governing Body
CMS recognized that the current requirement to include a member of the medical staff on a hospital’s governing body could create conflicts for some hospitals. This particularly affects public and non-profit hospitals, where state and local laws may require members of a public hospital’s governing body to be either publicly elected or appointed by the state’s governor or other state or local official(s). As an alternative to avoid unnecessary conflicts while still ensuring that the medical staff perspective on quality of care is heard by the governing body, CMS added a new provision at 42 CFR 482.12(a)(10) requiring a hospital’s governing body to directly consult with the individual responsible for the organized medical staff of the hospital, or his or her designee.
CMS described “direct consultation” to mean that the “governing body, or a subcommittee thereof, meets with a medical staff leader(s) either face-to-face or via a telecommunications system permitting immediate, synchronous communication.” The direct consultation must include a discussion of matters related to the quality of medical care provided to patients of the hospital and must occur at least twice during either a fiscal or calendar year.
CMS leaves it up to the hospital or multi-hospital system governing body to determine the number of consultations needed based on various considerations including, but not limited to, the scope and complexity of hospital services offered, specific patient populations served by a hospital, and any issues of patient safety and quality of care that a hospital’s quality assessment and performance improvement program might periodically identify as needing the attention of the governing body in consultation with its medical staff. CMS expects documented evidence that the governing body is appropriately responsive to any periodic and/or urgent requests from the individual responsible for the organized medical staff or designee for timely consultation on issues regarding the quality of medical care.
Non-Physician Practitioner Optional Members of Medical Staff in Accordance with State Law
CMS also revised Section 482.22(a) to clarify that the medical staff must be composed of doctors of medicine or osteopathy, but that it may also include other categories of physicians (i.e. doctors of dental surgery, dental medicine, podiatry, and optometry; chiropractors; and clinical psychologists) and non-physician practitioners (e.g., Advanced Practice Registered Nurses, Physician Assistants , Registered Dietitians , and Doctors of Pharmacy ) determined to be eligible for appointment by the governing body in accordance with state laws, including scope-of-practice laws. State laws limiting the composition of the medical staff to certain categories of practitioners will still control. In California, only physicians (including MDs and DOs), dentists, and podiatrists are deemed eligible for medical staff membership as a matter of law; clinical psychologists may be deemed eligible for medical staff membership as an institutional option.
CMS noted that there is nothing in the COPs that prevents hospitals and their medical staffs from establishing certain practice privileges for categories of practitioners excluded from medical staff membership under state law. In this regard, CMS reiterated that it has always expected hospitals and their medical staffs to exercise oversight, such as credentialing and competency review, of those practitioners to whom it grants privileges, just as it would for practitioners appointed to its medical staff.
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Medical staffs will have to evaluate the advantages and disadvantages of unifying and integrating medical staffs among affiliated hospitals to determine the best interests of the medical staffs based on the unique circumstances of each hospital system. Potential benefits that could be derived include more efficient sharing of knowledge and innovations among medical staff members, better physician on-call coverage for specialties, and more efficient patient care coordination. While each medical staff is to decide whether to opt out of the integrated medical staff structure based on the particular circumstances, this development is likely to lead to more unified medical staffs. Individual state laws should be consulted before moving forward with a unified medical staff structure to determine permissibility under state laws. Hospitals and systems considering integration should keep in mind CMS’s admonition that permitting the use of a system governing body or medical staff does not mean that compliance of the other hospital COPs may be demonstrated at the system level. Each separately participating hospital is still required to demonstrate its compliance with all other COPs in order to participate in Medicare.
For additional information, please contact Harry Shulman, Clark Stanton or Ross Campbell in San Francisco at 415.875.8500; Jennifer Hansen in San Diego at 619.744.7300; or Laurence Getzoff in Los Angeles at 310.551.8111.