New medical staff standards effective July 1 aim to prohibit discrimination for medical staff membership and clinical privileges, but fail to specify issues related to the lesbian, gay, bisexual, and transgender (LGBT) community.
Last month, The Joint Commission (formerly JACHO) reintroduced medical staff standards that prohibit discrimination for medical staff membership and clinical privileges. Missing from the language, however, were specifics related to the lesbian, gay, bisexual, and transgender (LGBT) community.
Effective July 1, the element of performance (EP) in approved standards, MS.06.01.07 and MS.07.01.01, specify that accredited hospitals cannot make medical staff privileging or appointment decisions -- that is, granting or denying practitioners -- based on gender, race, creed, and national origin. The current language, however, does not address sexual orientation or gender identity and/or expression.
"At this time, there are no plans to address sexual orientation in the medical staff standards," said Kenneth Powers, media relations manager of The Joint Commission in a statement to HCPro/HealthLeaders Media. "Sexual orientation will be part of the cultural sensitivity standards as related to patients."
As the largest accrediting body, The Joint Commission accredits more than 17,000 healthcare organizations and programs in the country.
AMA policy
Nevertheless, the American Medical Association (AMA) does include such language for providers. In 2007, AMA updated its antidiscrimination language to include transgender persons to the already addressed sexual orientation clause in its policy.
"The AMA affirms that it has not been its policy now or in the past to discriminate with regard to sexual orientation or gender identity," states the AMA Policy Regarding Sexual Orientation. "Membership in any category of the AMA or in any of its constituent associations shall not be denied or abridged because of sex, color, creed, race, religion, disability, ethnic origin, national origin, sexual orientation, gender identity, age, or for any other reason unrelated to character, competence, ethics, professional status or professional activities," states the AMA policy.
Medical staff policies and the law
Where does that leave hospitals and their policies, regarding medical staff employees and nonemployees who are gay, lesbian, bisexual, or transgender?
When considering best practices, it's not necessary to include such language in medical staff policies, according to James "Mac" Stewart, Esq., with Stewart Stimmel LLP in Dallas.
Federal law states that medical organizations are protected from lawsuits, unless they act maliciously or violate the Civil Rights Act of 1964. States may opt in to receive those immunities and therefore are subject to the anti-malice and anti-discrimination mandates.
"What the Joint Commission has done is to try to reemphasize that you can't discriminate in your credentialing process," said Stewart. "I think most medical staffs and hospitals are aware -- even without The Joint Commission saying it -- they are aware not to run afoul of the Civil Rights Act because they lose their immunity," he said.
It might not be necessary to include such expansive anti-discrimination language in medical staff policies (regarding sexual orientation and gender identity/or expression) because there are already processes and bylaws in place that ensure clinically qualified people are appointed and credentialed to the medical staff, according to Stewart.
The medical staff acts as a separate entity from the hospital. Although the hospital's board of trustees makes the ultimate approval decision, the medical staff executive committee sends applications through of only those who are clinically qualified based on such criteria as board-certification and number of years practiced, according to Stewart.
"My experience with the boards of trustees is that they care deeply about the quality of care of providers, and issues related to gender or sexual orientation don't enter their minds," said Stewart.
"What I find is that they just want to make sure they are good doctors," he said.
However, some boards in religious sponsored healthcare systems might not be comfortable including medical staff policy language as it relates to sexual orientation and gender identity/or expression, according to Stewart.
It's therefore, up to individual hospitals and medical staffs to implement their own anti-discrimination language, if they so chose.
Case study -- Rush University Medical Center
At Rush University Medical Center in Chicago, the institution has a global policy, called the Equality Opportunity, Diversity, and Inclusion Policy, that stretches across the entire organization of the university and medical center. It applies to, essentially, everyone in the institution: employees, patients, faculty, house staff, students, volunteers, or visitors.
Named one of the top performers, according to the 2010 Healthcare Equality Index by the Human Rights Campaign and the Gay & Lesbian Medical Association, Rush received a perfect score based, in part, for providing cultural training, inclusive employment, and nondiscrimination policies for those working within the institution.
"We've always tried -- in of all of our protected classes in our discrimination and harassment policies -- to stay ahead of the curve and ahead in federal, state, and municipal laws," said Beverly B. Huckman, associate vice president for equal opportunity at Rush Medical Center and Rush University.
The institutional policy prohibits discrimination and harassment of 14 classes of people, according to Huckman, based on the following:
Age
Ancestry
Color
Disability, as defined by Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act
Gender
Gender identity and/or expression
Martial and parental status
Natural origin
Pregnancy
Race
Religion
Sexual orientation
Veteran status
Any other category protected by federal and state law
Behind the policy, Huckman said, "The decision making was clearly a very strong commitment to, and support of, healthcare equity and equality for all those categories."
Backed by the administration, including the president, Rush's policy and procedures have become the model used by national associations, including the Association of American Medical Colleges and the Risk Management Institute, according to Huckman.
In the 1980s, Rush included sexual orientation language to its policy and has provided health benefits to same-sex partners since 2000. Two years ago, Rush added gender identity and/or expression to the policy language.
"What was blatant [discrimination and harassment] a couple of decades ago, has become much more subtle now. It becomes very important for the institution to prevent the subtleties, as well as the blatant form," said Huckman. "What we try to do is think in terms of equality, diversity, and inclusion -- the positive side of the equation. Even though our policies read differently, in other words, 'anti-discrimination' and 'anti-harassment,' we hope that our policies focus on the positive side of furthering diversity and inclusion as broadly as possible."
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