ABA Health eSource
January 2011 Volume 7 Number 5

Medical Staff Bylaws Standard Takes Effect March 31, 2011

By Elizabeth A. Snelson, Esq., Legal Counsel to the Medical Staff PLLC, St Paul, Minnesota

AuthorThe most comprehensive standard for medical staff bylaws will be implemented by the largest hospital accreditation agency in America in a matter of weeks, yet many medical staffs and hospitals have yet to complete the amendments necessary. Joint Commission standard MS. 01.01.01 (known earlier in the lengthy saga of its development as MS 1.20). 1 was the focus of intensive criticism by hospitals, resulting in a Joint Commission Task Force comprised of a hospital attorney and a medical staff attorney, and representatives of hospital industry trade groups, medical and other health professional associations, appointed in 2007 to discuss implementation and revision. After months of meetings and debate on medical staff self-governance and the appropriate content for medical staff bylaws, the revised standard won the acceptance of all Task Force members and adoption by the Joint Commission board in 2010, to be implemented as of March 31, 2011.

Few if any medical staff bylaws will comply with all of the new Standard’s 36 elements of performance, as the requirement to address histories and physicals has commonly been addressed instead in rules and regulations [Plus, medical staff bylaws that were divided into “manuals” and “plans” will require revision, as the primary focus of the new standard is to set what must be included in the medical staff bylaws. At a minimum, the following must be in the medical staff bylaws-not in rules and regulations, not in a hearing plan or credentialing manual, but in the medical staff bylaws:

  • The Medical Staff Structure (Element of Performance 12)
  • Qualifications and process for appointment/reappointment to the medical staff. (Elements of Performance 13, 27)
  • Process for privileging and re-privileging licensed independent practitioners (Element of Performance 14)
  • Process for credentialing and re-credentialing licensed independent practitioners (Element of Performance 26)
  • Duties and prerogatives of each category (Element of Performance 15)
  • Histories and physicals documentation requirements (Element of Performance 16)
  • Identification of which members can vote (Element of Performance 17)
  • Identification of medical staff offices, and the process for selecting/electing and removing medical staff officers (Elements of Performance 18 &19)
  • Duties and qualifications of the department chairs
  • The medical executive committee (MEC)’s:
    • Function
    • Size/composition, which must include physicians and may include other practitioners and other individuals, as well as the process for member election/selection and removal
    • Authority and means by which the medical staff delegates such authority to and removes it from the MEC, and acknowledgment that the MEC acts on behalf of the medical staff between its meetings and within the scope it defines (Elements of Performance 20, 21, 22, 23)
  • Indications and processes for automatic and summary suspension and termination or reduction of privileges and membership (Elements of Performance 28, 29, 31, 32, 33)
  • Hearing and appeals process and the composition of the hearing committee (Element of Performance 34, 35)
  • Process for amending and adopting medical staff bylaws, rules, regulations, and policies, which must include a means for the medical staff to propose amendments directly to the governing body, without requiring MEC action. (Elements of Performance 8, 24, 25)

While all these items must be contained in the medical staff bylaws, “associated details,” as identified in the medical staff bylaws, can be placed in rules and regulations and policies, except for the “basic steps…required for implementation” of any process. 2

There is more to MS 01.01.01 than a checklist of must-have ingredients for medical staff bylaws compliance. For the first time, the Joint Commission looks for safeguards in internal medical staff relations. Medical staffs may allow, as many now do, the MEC to adopt medical staff rules and regulations and policies, subject to governing body approval. But Element of Performance 9 now calls for the MEC to communicate the proposal first to the medical staff. Interestingly, if the medical staff exercises its authority to recommend changes directly to the governing body (which authority is required by Element of Performance 8), the medical staff must also first communicate the proposals to the MEC. However, as medical staffs do not meet separately from the MEC, this communication requirement can be met within the same meeting.

Anticipating that there may be differences of opinion within the medical staff, Element of Performance 10 requires the medical staff to have a process for conflict resolution.

“Urgent” compliance-based amendments by the medical staff executive committee can be authorized in the medical staff bylaws, but is completely optional. If added, it must be limited:

  • Only rules and regulations can be amended without prior notice to the medical staff---bylaws, policies or other medical staff documents cannot be changed by the MEC.
  • There must be a “need” for urgent amendment and that need must be documented. The need has to be either compliance with a law or compliance with a regulation: compliance with a Joint Commission standard is not sufficient.
  • Should this process be used, the medical staff must be immediately notified and given an opportunity for review and comment, and conflicts would be handled through the medical staff conflict resolution process mandated by Element of Performance 10.

Medical staffs that do not allow the MEC to make rules and regulations changes would not be allowed to have the MEC make such changes on an urgent basis. Medical staffs that do permit the MEC to make rules and regulations changes are not required to permit the MEC to do so on an urgent basis.

There are resources available for attorneys tasked to bring medical staff bylaws into compliance with MS 01.01.01. The American Medical Association’s Physicians’ Guide to Organized Medical Staff Bylaws fifth edition includes analysis and sample language that will meet this and other Joint Commission medical staff standards (see http://www.ama-assn.org ). Certain state medical societies also make model materials available on this and other medical staff related issues.

Medical staffs and their attorneys will need to prepare the necessary amendments for adoption by medical staffs following the timelines imposed by their current bylaws, for recommendation to and adoption by the hospitals’ governing bodies. Get to work!

Additional information and my  BYLAWG  can be accessed at  http://www.snelsonlaw.com

For more information, see “MS.01.01.01 (formerly known as MS 1.20: The Joint Commission’s Standards for Medical Staff Bylaws” The Health Lawyer, Volume 23, Number 2, December 2010, p 10” by clicking here (Requires Section Membership).

1 The standard is available at http://www.jointcommission.org/standard_ms010101.

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