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AMA, AHA at Odds Over 'Surprise' Medicare Final Rule

 |  By cclark@healthleadersmedia.com  
   June 18, 2012

The American Hospital Association and the American Medical Association are at odds over two provisions in a final Medicare rule that give physicians more influence over hospital decisions. And each organization stated its case with heated language in letters to the Centers for Medicare & Medicaid Services.

The AHA likened the new rule to a "surprise switcheroo," while the AMA says that if the AHA, using "very troubling" logic, got its way, "patients would be astonished and appalled to learn" of rules excluding medical staff members from service on the governing body.

The final rule, which specifies how hospitals must meet "Conditions of Participation" in the Medicare program, requires:

  • That a hospital or healthcare system can not have a single integrated medical staff serving more than one hospital, but that each hospital must have its own medical staff.
  • That every hospital's governing board include a member of that hospital's medical staff.

The AHA's June 5 letter says these two new provisions weren't in the Oct. 24 proposed rule. When they were incorporated in the final May 16 rule, it "surprised and greatly concern hospitals and other interested stakeholders." The final rule thus violates the Administrative Practice Act because stakeholders didn't have a chance to object when the proposed rule was open for comments, the AHA says.

The AMA's June 13 letter says "some hospital groups are attempting to force changes to the governing body and medical staff provisions of the final rule" and working to make those changes through revisions in interpretive guidelines.  "We strongly urge CMS to ensure that this process is transparent and does not contravene the provisions of the final rule"

The AMA, however, says the language was written in the proposed rule and "in fact, many stakeholders discussed the issue of a single medical staff in their comments on the proposal."

Cecil Wilson, MD, the AMA's immediate past president, says that "if you do not have on a hospital governing board "a physician who can help make decisions related to quality and safety, I think the possibility and risk of making decisions which are not well-informed increases. Not to have that  (input) would put these boards at risk of making decisions, which were not in the best interests of the hospital or for the patients."

CMS officials say they are caught in the middle. "We're aware of the concerns around this rule and are taking them seriously," CMS spokesman Brian Cook wrote in an e-mail. "We are looking at how to avoid any unnecessary conflicts for facilities, while also allowing medical staff’s perspective on quality of care to be heard by an organization's governing board."

Single, separate medical staff
AHA president and CEO Rich Umbdenstock's letter accused CMS officials of pulling "a surprising and impermissible about-face" in requiring that each hospital, regardless of whether it is a part of a multi-hospital system, have a single and separate medical staff. He likened it to "a surprise switcheroo."

Umbdenstock says that such language was not in the proposed rule, and in fact, the proposed rule mentioned "that some systems had unified their governing boards. The only possible interpretation of this section ...is that CMS concluded that its language permits a unified medical staff, and it was not proposing to change that."

If in its proposed rule CMS had indicated it was considering such a change, "the affected stakeholders would have described the enhanced ability of their medical staffs, working as a unified body, to more effectively and efficiently review, credential and privilege individuals seeking staff privileges."

Having one medical staff serving a whole health system would be more effective in standardizing high quality and safe care, address knowledge gaps, "before patient care suffers." In fact, many health systems have already unified their medical staffs by adopting medical staff by-laws, policies and procedures.

But James Madara, MD, AMA executive vice president, says his organization "strongly supports" the rule. 

The medical staff must be specific to each hospital, he wrote, to serve "as a vital resource for real-time clinical feedback regarding what does and does not work.  For these efforts to be successful, it is essential that a locally organized medical staff oversee care delivery and provide a primary perspective regarding how that hospital's care coordination efforts are working for that local patient population."

Governing boards
Umbdenstock says that CMS' new requirement that each hospital's governing body must include at least one medical staff member caught the AHA by surprise as well because it was not in the proposed rule, violating the Administrative Procedure Act.

If it had been in the proposed rule, CMS would have heard five essential reasons why many hospitals can't comply.

  1. Since governing boards of many hospitals are elected, those hospitals "would not meet the requirement unless a physician decides to run for the hospital's board/commission and is successful in that campaign."
  2. Publicly owned hospitals may have trustees whose members are appointed by the county council or another elected official, and are limited to choosing "individuals who best fulfill the fiduciary responsibilities for these important public hospitals."
  3. In some states, such as Iowa, the law specifically prohibits a person or a spouse of a person with medical or special staff privileges" from serving as a trustee.
  4. Public university boards of regents serve as governing boards of university hospitals.
  5. Investor owned hospitals have governing boards selected by their investors, and it's "not appropriate for an agency to interfere with the choices made by investors in a privately held company."

Communication between the medical staff and leadership is important, the AHA says, but "We believe that CMS's substitution of its own judgment about how to accomplish this goal without thorough and considered public comment has resulted in a significantly ill-informed policy with which many hospitals will be unable to comply."

Madera, on the other hand, says the AMA strongly supports having a member of the medical staff on a hospital's governing body.

"While the corporate executives, attorney, civic leaders, and other non-clinician who sit on the governing body often bring relevant expertise to the overall management of the hospital, as non-clinicians, they are not equipped to evaluate and guide patient care at the facility."

Wilson, of the AMA, says it's important that physicians who take care of patients at the hospital have input on such decisions as "how you monitor patients or how you move patients from different places within a hospital, or how you care for patients who are very ill or have infectious diseases.

"One would assume that (the hospitals) are trying to look for efficiency and economy, and they believe that if they have one big system, one central group can serve all those functions.  We disagree, and we think it's counterintuitive to suggest that for any one hospital you wouldn't have a medical staff making recommendations about patient care and safety."

CMS Responds

Prompted by concerns voiced by AHA and other stakeholders, CMS said Friday it will hold off implementing a new requirement that hospital governing boards include a medical staff member and will reconsider the requirement in future rulemaking.

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