Chapter 4 Organizational and Drafting Tips for Medical Staff Bylaws and Related Documents 4.1 Medical Staff Input and Involvement The differing expertise of the health care entity and its medical staff is such that the governing body of the health care entity cannot effectively fulfill its responsibilities unless there is extensive cooperation from and with the medical staff. The medical staff bylaws can create an environment for establishing and maintaining a cooperative and helpful relationship by: 1. providing for the involvement of the medical staff, whenever appropriate; 2. providing a responsive mechanism by which the governing body of the health care entity can act upon or respond to recommendations of the medical staff; 3. providing the means for the medical staff to take the lead in recommending the requirements for credentialing and privileging; 4. allowing the medical staff to play appropriate roles in assisting the governing body with corrective actions, while qualifying for the maximum protection from liability as afforded by HCQIA or other statutory provisions; and 5. defining the roles of the medical staff in such a way as to maximize legal protections and foster effective management. In addition, the health care entity s own bylaws should be consistent with these objectives. Committees or members of the medical staff should be recognized as agents of the health care entity in the good faith performance of certain functions under terms that qualify them for appropriate protection by way of insurance, indemnification and relevant state and federal statutes. By ensuring that such protective measures are in place, the medical staff can be reassured that its members involvement should not result in any additional exposure to potential liability. 4.2 Structure of Medical Staff Bylaws Over the past decade or so, it became fairly common for a health care entity to separate key topics relating to the governance of the medical staff into different documents instead of including those topics in the medical staff bylaws. For example, the health care entity may have limited the medical staff bylaws document to the more basic medical staff organizational matters (i.e., categories of staff, departments, officers, committees and meetings), and carved out the more specific procedural aspects The Medical Staff Guidebook: Minimizing Risks and Maximizing Collaboration, Fourth Edition 53
of medical staff governance, adopting separate documents for the credentialing and corrective action procedures and the fair hearing procedures. Although separating the medical staff governance documents into multiple topical documents does not shorten the overall length of the governance materials and may in fact lengthen it somewhat, from a psychological perspective a shorter document is more likely to be read. Furthermore, the multiple document approach may simplify the different topics because each individual document is focused on one aspect of the governance mechanism, e.g., hearing proceedings. Even though many health care facilities incorporated the Joint Commission medical staff requirements into a number of separate documents, changes by the Joint Commission to MS.01.01.01, which went into effect on March 31, 2011, have affected the structure of medical staff bylaws and related documents. The revised version of MS.01.01.01 (formerly MS 1.20) seeks to strike a balance between the powers of the medical staff as a whole and the powers of the medical executive committee in connection with changes to the medical staff bylaws and rules, regulations and policies. In particular, medical staff bylaws must contain language permitting the organized medical staff to adopt or amend medical staff bylaws, rules and regulations and policies and to propose them directly to the governing body. 1 The percentage of the medical staff required to initiate such action on behalf of the medical staff is not dictated by the Joint Commission, but is left to the discretion of the medical staff and governing body. If the authority over rules, regulations, or policies has been delegated to the medical executive committee, and the voting members of the organized medical staff propose to adopt or amend a rule, regulation or policy, the organized medical staff must first notify the medical executive committee of its proposed action before submitting the proposal to the governing body. 2 If the medical executive committee proposes to adopt or amend a rule or regulation, it must first communicate the proposal to the medical staff. 3 However, if the medical executive committee adopts or amends a policy, prior notice to the medical staff is not required. 4 In the case of a documented need for an urgent amendment to the rules and regulations necessary to comply with law or regulation, the medical executive committee may provisionally adopt (and the governing body may provisionally approve) an urgent amendment without prior notification of the medical staff. 5 In such a case, the medical executive committee must immediately notify the medical staff of the amendment, and the medical staff must have an opportunity to conduct a retrospective review and comment on the provisional amendment. 6 MS.01.01.01 also contains a requirement that a process be established to manage conflicts between the medical executive committee and the medical staff when they arise. 7 However, the Joint Commission has not dictated the exact process, and the medical staff, with the approval of the 1 MS.01.01.01, Element of Performance 8. 2 MS.01.01.01, Element of Performance 9. 3 4 5 MS.01.01.01, Element of Performance 11. 6 7 MS.01.01.01, Element of Performance 10. The conflict management process is not limited to conflicts over the bylaws, rules, regulations or policies. 54 The Medical Staff Guidebook: Minimizing Risks and Maximizing Collaboration, Fourth Edition
governing body, has the discretion to establish a process appropriate for the specific health care entity. The Joint Commission similarly requires a process for resolution of conflicts between the hospitals leaders, i.e. the governing body, the organized medical staff, and senior managers of the hospital. 8 LD.02.04.01 provides some guidance on how to conduct this conflict resolution process, requiring that the process include: meeting with the involved parties as early as possible to identify the conflict; gathering information regarding the conflict; working with the parties to manage and, when possible, resolve the conflict; and protecting the safety and quality of care of the patients. 9 MS.01.01.01 mandates that every requirement of Elements of Performance 12 through 36 must be contained in the medical staff bylaws. This includes the structure of the medical staff, 10 qualifications for appointment, 11 the process for privileging, 12 the duties and prerogatives of each staff category, 13 requirements for completing and documenting medical histories and physical examinations, 14 description of medical staff members eligible to vote, 15 process for selection and removal of medical staff officers, 16 a list of officer positions, 17 the function, size, composition, and authority of the medical executive committee and how the authority is delegated or removed, 18 process for selecting or electing and removal of medical executive committee members, 19 the medical executive committee must include physicians and may include other practitioners and individuals, 20 the medical executive committee acts on behalf of the medical staff between staff meetings, 21 process for adoption and amendment of the bylaws, rules and regulations, and policies, 22 credentialing and recredentialing processes, 23 appointment and reappointment of processes, 24 indications and process for automatic suspension, 25 indications and process for summary suspension, 26 indications and process for termination, suspension or reduction of privileges or membership, 27 hearing and appeal process, including the composition of the fair hearing committee, 28 and the qualifications and rights and responsibilities 8 LD.02.04.01. 9 LD.02.04.01, Element of Performance 4. 10 MS.01.01.01, Element of Performance 12. 11 MS.01.01.01, Element of Performance 13. 12 MS.01.01.01, Element of Performance 14. 13 MS.01.01.01, Element of Performance 15. This only applies to hospitals that use Joint Commission Accreditation for deemed status purpose. 14 MS.01.01.01, Element of Performance 16. This only applies to hospitals that use the Joint Commission Accreditation for deemed status purpose. 15 MS.01.01.01, Element of Performance 17. 16 MS.01.01.01, Element of Performance 18. 17 MS.01.01.01, Element of Performance 19. 18 MS.01.01.01, Element of Performance 20 19 MS.01.01.01, Element of Performance 21. 20 MS.01.01.01, Element of Performance 22. 21 MS.01.01.01, Element of Performance 23. 22 MS.01.01.01, Element of Performance 24 and 25. 23 MS.01.01.01, Element of Performance 26. 24 MS.01.01.01, Element of Performance 27. 25 MS.01.01.01, Element of Performance 28 and 31. 26 MS.01.01.01, Element of Performance 29 and 32. 27 MS.01.01.01, Element of Performance 30 and 33. 28 MS.01.01.01, Element of Performance 34 and 35. The Medical Staff Guidebook: Minimizing Risks and Maximizing Collaboration, Fourth Edition 55
of the department chairs. 29 At a minimum, the basic steps for these key processes must be included in the medical staff bylaws, however, the associated details may be placed in separate rules and regulations, or policies. 30 The medical staff and the governing body are responsible for defining what minimum basic steps must be included in the medical staff bylaws. The Joint Commission does not dictate these minimum basic steps, and has indicated that they may vary from facility to facility. 31 However, the Joint Commission has indicated that the minimum basic steps required to be included in the medical staff bylaws must be more than a mere cross-reference to another policy or procedure. 32 The medical staff also determines whether changes to such associated details in rules, regulations or policies must be approved by the medical staff as a whole or may be delegated to the medical executive committee. 33 In light of potential difficulties in determining what items are required to be included in the medical staff bylaws and what items may be included in other documents, some facilities may just elect to include in the medical staff bylaws all requirements and processes required by MS.01.01.01. 4.3 General Organizational and Drafting Considerations 4.3.1 Use of Definitions Definitions should be included in or as an exhibit to the medical staff bylaws. It is helpful to use the definitions and interpretive guidance from HCQIA, as amended from time to time, to ensure that the correct description of certain activities is incorporated into the documents and HCQIA immunities are preserved to the greatest extent possible. Applicable state law also may have key definitions regarding peer review activities and other medical staff matters which should be incorporated into the medical staff by laws and related documents. 4.3.2 Numbering and Titling of Sections Each section of the documents should be uniquely numbered. For example, the following numbering structure is recommended: 1. 1.1 1.1.1 29 MS.01.01.01, Element of performance 36. The specific qualifications, roles and responsibilities are delineated in this Element of Performance. 30 MS.01.01.01, Element of Performance 3. 31 See Item 3 of the Joint Commission s Frequently Asked Questions Regarding Standard MS.01.01.01 (formerly MS.1.20), which can be accessed at www.jointcommission.org/assets/1/6/faqs_ms_01_01_01.pdf. 32 In Item 6 of the Joint Commission s Frequently Asked Questions, the following example is given regarding basic steps and associated details: 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. 33 MS.01.01.01, Element of Performance 3. 56 The Medical Staff Guidebook: Minimizing Risks and Maximizing Collaboration, Fourth Edition
1.1.2 1.1.3 1.1.3(i) 1.1.3(ii) This organizational structure eliminates confusion and difficulty of reference that results from lettered and numbered articles, paragraphs and subparagraphs. Exhibit numbers should correspond to the section number of the document in which the exhibit is referenced. Finally, a list of the exhibits should be included at the end of the document and in the table of contents. The Medical Staff Guidebook: Minimizing Risks and Maximizing Collaboration, Fourth Edition 57