The OMSS Advocate is a quarterly newsletter for members of CMA's Organized Medical Staff Section. The Advocate covers events and issues that impact or are of particular interest to hospital medical staffs.
In this issue:
- Renew your OMSS membership today
- CMA has concerns about new CMS rule governing scope of practice for medical staffs
- CMA petition for amendments extending verbal order authentication time period rejected by CDPH
- 2011 Legislative Wrap-Up is now available
- State Supreme Court to review medical staff self-governance case
- CMA to advocate for whistle blower statute in California appellate case
- Fourteen California hospitals fined for patient safety violations
- Joint Commission seeks comments on NPSG addressing treatment overuse
- 2011 OMSS Annual Assembly convenes in Anaheim
- OMSS elects Executive Board members
- Register now for medical staff leadership training
- Statewide push to vaccinate health care workers against flu begins
PRINT/DOWNLOAD: Click here to download a printable pdf of the OMSS Advocate.
1. Renew your OMSS membership today
The California Medical Association (CMA) Organized Medical Staff Section (OMSS) represents over 130 California hospital medical staffs and advocates for strong medical staff self-governance and quality patient care. Our members know that their OMSS membership supports CMA legislative advocacy, policy development and legal action on medical staff issues.
CMA is now accepting OMSS membership applications and renewals for 2012.
For 2012, OMSS members will receive benefits and resources, including:
- Access to legal and policy experts for individual advice on a wide range of medical staff issues.
- Access to the CMA online resource library, with medical-legal and other information of importance to physicians.
- Copy of the 2012 CMA Model Medical Staff Bylaws, updated to reflect state and federal law changes and new Joint Commission standards. The update also includes new amendments on topics such as the role of the chief medical officer, duties of the medical executive committee, the relationship between the medical staff and the hospital governing body and telemedicine.
- Free registration for the designated OMSS representative and chief of staff for the OMSS Annual Assembly and Educational Conference.
- Free subscription to OMSS Advocate—a quarterly newsletter on events and issues that impact medical staffs.
TAKE ACTION: Current OMSS members will be receiving membership renewal information. To prevent any interruption in your OMSS membership benefits, please update your contact information and submit your OMSS membership dues as soon as possible. If your medical staff is not already an OMSS member, you can join by completing and submitting the OMSS membership application, available here.
MORE INFORMATION: Contact CMA at medstaffhelp@cmanet.org or (800) 786-4CMA (4246) with questions about OMSS membership benefits.
2. CMA has concerns about new CMS rule governing scope of practice for medical staffs
In October, the Centers for Medicare & Medicaid Services (CMS) published a proposed rule titled, Reform of Hospital and Critical Access Hospital Conditions of Participation." This was part of an effort initiated by the Obama Administration in January 2011 to reduce regulatory provisions on hospitals that must comply with Medicare and Medicaid.
The California Medical Association (CMA) reviewed the proposed regulation and has serious concerns about the impact on medical staffs and their ability to oversee quality of care. The rule could also significantly expand the scope of practice of non-physicians working in hospitals. Major provisions in the rule include:
- Allowing hospitals to grant privileges to both physicians and non-physicians to practice within their state’s licensing and scope of practice laws, regardless of whether they are also appointed to the hospital’s medical staff.
- Allowing multiple hospitals within a system to establish single hospital boards and medical staffs.
- Allowing drugs and biologicals to be prepared and administered if ordered by certain practitioners other than a doctor of medicine or osteopathy or another practitioner specifically listed in the Conditions of Participation.
- Making permanent the temporary verbal orders’ provision that allows someone other than the ordering physician to sign the verbal order. Another proposed revision would remove the 48-hour signing requirement; however, the requirement for prompt authentication remains. CMS has proposed to defer to hospital policy and state law for establishment of the timeframe.
CMA submitted comments to CMS regarding our concerns about the impact of the proposed rule on the quality of care in hospitals.
The final rule will be published in 2012.
MORE INFORMATION: The proposed rule changes are available on the CMS website. CMA’s comments are available here.
3. CMA petition for amendments extending verbal order authentication time period rejected by CDPH
The California Department of Public Health (CDPH) rejected amendments proposed by the California Medical Association (CMA) that would extend the time a physician has to countersign or authenticate a verbal order for treatment of a patient when a read-back and verify process is used (Title 22 of the California Code of Regulations).
The proposed amendments would have extended the authentication period to 14 days when a read-back and verify process is followed at the time a verbal order is given. The petition also proposed standardized periods for authentication of verbal orders across health facilities. Current state regulations impose specified time limits on physicians for authenticating verbal orders. Depending on the location of the patient, physicians are generally required to physically authenticate a verbal order within 48 hours.
CDPH denied the petition on November 7, stating that it did not consider the 48-hour timeframe to be unnecessarily burdensome for most hospitals, but did not address the impact of the requirement on physicians. Furthermore, it stated that electronic authentication of orders was an acceptable practice that should be more widely adopted.
However, CMA feels these amendments would enhance accuracy and patient safety when verbal orders are implemented by encouraging immediate read-back of the orders. The proposed amendments would also create consistency in the regulations governing verbal order authentication across different health care settings.
CMS proposes revisions to the authentication rules
In a related action, the Centers for Medicare & Medicaid Services (CMS) proposed a revision to the hospital conditions of participation that would make permanent the temporary verbal orders provision that allows someone other than the ordering physician to sign the verbal order. Another proposed revision would remove the 48-hour signing requirement; however, the requirement for prompt authentication remains. CMS said it will defer to hospital policy and state law to establish this timeframe.
In the letter denying the petition, CDPH acknowledged the proposed change in federal regulations, but stated that the department will not propose amending Title 22 to be consistent with the removal of federal requirements regarding time-limited authentication of verbal orders.
CMA remains concerned about the burden placed on physicians by this requirement.
MORE INFORMATION: To review the original petition, click here. To read the CDPH response, click here.
4. 2011 Legislative Wrap-Up is now available
It was a year fraught with budget woes, redistricting chaos and an unpredictable new Administration. The California Medical Association (CMA) overcame these shifts in the legislative and political landscapes to successfully protect physicians from a number of threats. For more information, please read CMA's 2011 Legislative Wrap-Up.
5. State Supreme Court to review medical staff self-governance case
The California Supreme Court has decided to review El-Attar v. Hollywood Presbyterian Medical Center, 198 Cal. App. 4th 664 (2011), a recent intermediate appellate court decision that reaffirmed the importance of medical staff self-governance in the context of fair hearing procedures. The California Medical Association (CMA) participated in the prior court proceeding to support Dr. El-Attar and intends to file another amicus brief before the California Supreme Court.
The case involves the right of medical staff self-governance and the authority of medical staff bylaws and procedures. It raises questions whether a hospital governing board can usurp the power of a medical executive committee to appoint members of a judicial review committee panel and the contours of due process that must be afforded to a physician under peer review. The intermediate appellate court recognized:
A working peer review system as established in the Bylaws, not only requires establishment of a dual structure, but also requires preserving the separateness of those dual components. That structure promotes the goal of shielding physicians from arbitrary and discriminatory disciplinary action by effectively insulating a governing body bent on removing the physician from the hospital medical staff. Allowing the governing board to handpick the [hearing panel] members jeopardizes the integrity of the hearing from the beginning and it undercuts the medical staff’s right and obligation to perform this self-governing function. (Op. at 17.)
The California Supreme Court's decision in this case will establish binding law for all of the state. Briefing in the case will progress through early 2012 and a decision can be expected later in the year.
MORE INFORMATION: For more information, see CMA medical-legal document #1410, “Peer Review – Fair Hearing Requirements.”
6. CMA to advocate for whistle blower statute in California appellate case
The California Medical Association (CMA) will be filing an amicus brief to support the aggrieved medical staff physician in Fahlen v. Sutter Central Valley Hospitals, a case pending in the California appellate court in Fresno. Dr. Fahlen suffered retaliatory actions that ultimately resulted in his termination from the medical staff. He alleges the action was in retaliation for raising complaints about nursing care at the hospital. In his case against the Sutter hospital and one of its executives, legal questions have arisen concerning Dr. Fahlen's right to sue and obtain damages under California's whistle blower statute for physicians, an important statute that CMA sponsored in 2007.
The whistle blower statute prohibits a hospital from taking adverse action, or threatening to take adverse action, against a member of the medical staff for raising a complaint about patient safety at that hospital. The statute also expressly authorizes an aggrieved physician to sue in court for reinstatement of privileges and consequential damages that result from the unlawful retaliation. CMA will get involved in this case to underscore the importance of this statute for the medical staff and ensure that whistleblower protection is applied broadly.
MORE INFORMATION: For more information, see CMA medical-legal documents #1410, “Peer Review – Fair Hearing Requirements, and #1050, "Retaliation by Managed Care Plans and Others."
7. Fourteen California hospitals fined for patient safety violations
The California Department of Public Health (CDPH) announced on December 8, 2011, that 14 California hospitals had been assessed administrative penalties for non-compliance with licensing requirements that caused, or were likely to cause, serious death or injury to patients. Health and Safety Code §1280.1 gives CDPH the power to assess fines where there has been a deficiency that constitutes an “immediate jeopardy to the health or safety of a patient.” The violations that resulted in the most recent round of penalties included:
- Fresno Surgical Hospital, Fresno, Fresno County: The hospital failed to ensure the health and safety of a patient when the hospital did not follow its surgical policies and procedures. This resulted in a patient having to undergo a second surgery to remove a retained foreign object. This is the first administrative penalty issued to this hospital. The penalty is $50,000.
- Henry Mayo Newhall Memorial Hospital, Valencia, Los Angeles County: The hospital failed to implement policies and procedures for the safe administration of medication. This is the first administrative penalty issued to this hospital. The penalty is $50,000.
- Kaiser Foundation Hospital, South San Francisco, San Mateo County: The hospital failed to implement its established policies and procedures for the safe and effective administration of medication. This is the first administrative penalty issued to this hospital. The penalty is $50,000.
- LAC+USC Medical Center, Los Angeles, Los Angeles County: The hospital failed to ensure the health and safety of a patient when the hospital did not follow its surgical policies and procedures. This resulted in a patient having to undergo a second surgery to remove a retained foreign object. This is the fifth administrative penalty issued to this facility. The penalty is $25,000.
- Lucile Salter Packard Children's Hospital at Stanford, Palo Alto, Santa Clara County: The hospital failed to implement policies and procedures for the safe administration of medication. This is the second administrative penalty issued to this facility. The penalty is $50,000.
- Mission Hospital Regional Medical Center, Mission Viejo, Orange County: The hospital failed to ensure the health and safety of a patient when the hospital did not follow its surgical policies and procedures. This resulted in a patient having to undergo a second surgery to remove a retained foreign object. This is the fourth administrative penalty issued to this facility. The penalty is $100,000.
- San Francisco General Hospital, San Francisco, San Francisco County: The hospital failed to ensure the health and safety of a patient when the hospital did not follow its surgical policies and procedures. This is the second administrative penalty issued to this facility. The penalty is $50,000.
- Santa Barbara Cottage Hospital, Santa Barbara, Santa Barbara County: The hospital failed to develop and implement safety measures which ensure the protection of a patient. This is the first administrative penalty issued to this hospital. The penalty is $50,000.
- Scripps Memorial Hospital La Jolla, La Jolla, San Diego County: The hospital failed to ensure the health and safety of a patient when the hospital did not follow its surgical policies and procedures. This resulted in a patient having to undergo a second surgery to remove a retained foreign object. This is the sixth administrative penalty issued to this facility. The penalty is $100,000.
- St. Jude Medical Center, Fullerton, Orange County: The hospital failed to implement policies and procedures for the safe administration of medication. This is the third administrative penalty issued to this facility. The penalty is $75,000.
- Sutter Solano Medical Center, Vallejo, Solano County: The hospital failed to ensure the health and safety of a patient when the hospital did not follow its surgical policies and procedures. This resulted in a patient having to undergo a second surgery to remove a retained foreign object. This is the first administrative penalty issued to this hospital. The penalty is $50,000.
- Torrance Memorial Medical Center, Torrance, Los Angeles County: The hospital failed to ensure the health and safety of a patient when the hospital did not follow its surgical policies and procedures. This resulted in a patient having to undergo a second surgery to remove a retained foreign object. This is the second administrative penalty issued to this facility. The penalty is $75,000.
- UCSF Medical Center, San Francisco, San Francisco County: The hospital failed to ensure the health and safety of a patient when the hospital did not follow its surgical policies and procedures. This is the sixth administrative penalty issued to this facility. The penalty is $75,000.
- Ventura County Medical Center, Ventura, Ventura County: The hospital failed to ensure the health and safety of a patient when the hospital did not follow its surgical policies and procedures. This resulted in a patient having to undergo a second surgery to remove a retained foreign object. This is the second administrative penalty issued to this facility. The penalty is $50,000.
Administrative penalties are issued under authority granted by Health and Safety Code §1280.1. Governor Arnold Schwarzenegger signed legislation that took effect January 1, 2009, that increased fines for incidents occurring in 2009 or later. Under the new provisions, an administrative penalty carries a fine of $50,000 for the first violation; $75,000 for the second; and $100,000 for the third or subsequent violation at the same hospital.
Protect Confidentiality of Patient Safety Committees. All California hospitals are required to be in compliance with applicable state licensure laws, including those related to patient safety and adverse events, such as Health and Safety Code §1279.6. That provision requires hospitals to develop, implement and comply with a patient safety plan for improving the health and safety of patients and reducing preventable patient safety events.
TAKE ACTION: Medical staffs should work with hospitals to regularly review patient safety plans to ensure compliance with state licensure laws. According to the law, the safety plan must, among other things, provide for the establishment of a patient safety committee as well as a process for a team to conduct analyses, including but not limited to, root cause analyses of patient safety events. It is critical that such a committee be a formally organized committee of the medical staff so that it can receive confidentiality and immunity protections under California law.
MORE INFORMATION: For more information on California’s legislation concerning patient safety, see CMA medical-legal document #1540, “Medical Error and Adverse Events: Mandatory Systems and Reporting.” For more information on peer review immunity protections, see document #1425, “Peer Review Protections – Executive Summary.” Medical-legal documents are available free to members in CMA’s online resource library.
8. Joint Commission seeks comments on NPSG addressing treatment overuse
The Joint Commission is proposing a new National Patient Safety Goal (NPSG) on the topic of overuse of various treatments, procedures, and tests in health care. It is asking for input from the field.
According to the Joint Commission, research has demonstrated that overuse occurs with significant frequency in the United States. It defines overuse as the use of a health service in circumstances where the likelihood of benefit is negligible and the patient faces only the risk of harm. Seen from this perspective, overuse is a safety and quality problem.
The Joint Commission lists the following as examples of potentially overused tests, treatments and procedures:
- Early induction of labor for pregnancies of 39 weeks gestation or less in patients with no known medical conditions that predispose to such delivery.
- Insertion of tympanostomy tubes in children with otitis media and bilateral effusions of less than 60 days and without the presence of other symptoms.
- Red blood cell transfusions in patients with hemoglobin of 12 grams or more without clinical signs of hemodynamic instability.
- Percutaneous coronary stenting or balloon angioplasty for coronary stenosis of 40 percent or less.
- Diagnostic use of CT scans before considering ultrasound for patients presenting to the emergency department with a primary complaint of abdominal pain.
The proposed NPSG, which would take effect in January 2013, would require accredited organizations to:
- Initiate a program to prevent overuse when it could result in harm to patients. Hospitals may select their own treatment, procedure or test based on risk assessment of clinical services provided or it may choose from among those listed above.
- Evaluate whether overuse is occurring for the selected treatment, procedure or test and if so, identify how it can be addressed. Hospitals are responsible for developing quality metrics for assessing the appropriate use of the selected treatment, procedure or test.
Additionally, beginning in January 2014, if the evaluation identifies potential overuse, accredited organizations would be required to:
- Use performance improvement tools and methods in conjunction with clinical practice guidelines to reduce inappropriate use.
- Evaluate the effectiveness of efforts to minimize overuse and take action to improve.
- Take action when planned improvements are not achieved or sustained.
Comments are due by January 24, 2012.
TAKE ACTION: Medical staffs are encouraged to review the proposed revisions, and provide comments here.
MORE INFORMATION: Visit the Joint Commission website at www.jointcommission.org.
9. 2011 OMSS Annual Assembly convenes in Anaheim
The California Medical Association (CMA) Organized Medical Staff Section (OMSS) Annual Assembly met on October 14 in Anaheim to consider policies related to medical staff issues and to participate in the annual educational conference. About 75 doctors representing organized medical staffs throughout the state participated in this meeting.
Also in October, CMA’s House of Delegates adopted several policies that direct CMA to take the following actions on a range of issues that impact medical staffs:
- Lawfully assist local physician practices, medical societies and their communities to oppose requiring hospital-based or hospital-affiliated physicians or groups to carry minimum medical professional liability insurance with limits greater than that determined appropriate by medical staff or consistent with industry standards; and vigorously oppose physicians being required to contractually indemnify hospitals for liability.
- Amend the CMA Model Medical Staff Bylaws to allow a medical staff to allow a member, who has been a member in good standing and simply did not submit a renewal application on time, to be exempt from the initial proctoring generally required for a new membership application.
- Acknowledge the diversity of forms and processes that currently exist in the area of medical ethics consultation and continue to monitor developments in the area of clinical ethics consultation, especially as it impacts the delivery of medical care; be made aware of the issues that exist in the area of medical ethics consultation and its impact on the delivery of medical care; and support the concept of formal training for clinical ethics consultants but leave the determination of the substantive requirements of that position to individual health care institutions.
- Support the concept that every hospital should have an independent self-governing medical staff that conducts fair peer review regularly; and support the active enforcement of state and federal laws and national accreditation standards that require that fair and regular peer review is conducted in all California hospitals.
In addition to consideration of resolutions, the OMSS Annual Assembly included educational presentations on:
- Hospital-physician alignments and integrated care models trends and legal considerations
- Update from the Centers for Medicare and Medicaid Services
- 2011 legislative wrap-up
- Understanding ongoing professional practice evaluation and focused professional practice evaluation
- Update on the development of a statewide physician health programs
- Electronic health records – considerations for organized medical staffs
TAKE ACTION: Representatives of OMSS member medical staffs are invited to attend OMSS Annual Assembly meetings at no charge. The 2012 OMSS Annual Assembly will be held October 12 in Sacramento. Please contact CMA to renew your membership and confirm the contact information for your OMSS representative to receive more information about this event.
MORE INFORMATION: OMSS Annual Assembly materials, including presentations, reports and other handouts, are available online. Please contact CMA at medstaffhelp@cmanet.org or at (800) 786-4CMA (4246) with questions about OMSS membership benefits.
10. OMSS elects Executive Board members
Elections for several California Medical Association (CMA) OMSS Executive Board positions were held at the 2011 OMSS Annual Assembly in October 2011. The OMSS Executive Board is responsible for the planning and oversight of section activities, and reports periodically to the CMA House of Delegates and to the Board of Trustees. The 2011-2012 OMSS Executive Board members are:
Lytton Smith, M.D. (Chair). Dr. Smith is a family practice physician and is currently chief of staff at St. Jude Medical Center in Yorba Linda. He previously served as secretary for the OMSS Executive Board.
Jimmy Chung, M.D. (Vice Chair). Dr. Chung specializes in general, laparoscopic, thoracic and vascular surgery and is the chief of staff and OMSS representative for Dominican Hospital in Santa Cruz.
Marshall Morgan, M.D. (Secretary). Dr. Morgan practices emergency medicine and is currently serving as chief of staff at the Ronald Reagan UCLA Medical Center in Los Angeles.
Robert Pugach, M.D. (CMA Board of Trustees). Dr. Pugach is a urologist and serves as the OMSS representative for Community Hospital of Long Beach.
John Luster, M.D., (Delegate). Dr. Luster practices family medicine and currently serves as chief of staff for Chapman Medical Center in Orange.
Richard Rajaratnam, M.D. (Delegate). Dr. Rajaratnam practices head and neck surgery and currently serves as the area medical director for the Southern California Permanente Medical Group.
Melvyn Sterling, M.D. (Alternate Delegate). Dr. Sterling practices palliative medicine and is the OMSS representative for St. Joseph Hospital in Orange.
Richard Butcher, M.D., (Alternate Delegate). Dr. Butcher practices family medicine in San Diego and is the OMSS representative for Alvarado Hospital.
TAKE ACTION: The OMSS Executive Board encourages active participation from OMSS representatives on important issues impacting organized medical staffs. To contact an OMSS board member or to find out more about OMSS Executive Board meetings, please contact CMA at medstaffhelp@cmanet.org.
11. Register now for medical staff leadership training
The California Medical Association’s Institute for Medical Quality (IMQ) is hosting the second Annual IMQ/PACE Platinum Training Program for Physician Leaders during March 8-10, 2012, at the Coronado Island Marriot Resort and Spa in San Diego. Early registration is now open for all physicians who wish to attend.
This interactive program teaches physicians the non-clinical skills they need to successfully run their medical staffs. Training will cover communications, effective use of data, meeting management, credentialing, peer review, well-being committees, legal issues and how to handle disruptive professionals, among other topics.
The program is funded by a grant from the Physicians Foundation and IMQ, in partnership with the University of California, San Diego.
Details and registration information is available on the IMQ website – www.imq.org or phone. You can also download the registration brochure here.
Contact: Lisa San Gabriel, (415) 882-3314 or lsangabriel@imq.org.
12. Statewide push to vaccinate health care workers against flu begins
Highlighting the importance of flu vaccinations in reducing the risks of illness and infections among patients, a coalition of state public health officials have joined with a group of statewide health care providers to urge all health care workers to get their annual flu shots.
On December 5, the California Medical Association (CMA) signed a letter challenging all California health care facilities to increase flu vaccination rates among health care workers as part of National Influenza Vaccination Week (December 4 to 10).
“At a time when tens of thousands of patients are dying each year from influenza in the United States, we need to take every precaution to be sure that patient exposure to the virus is as low as possible,” said James T. Hay, M.D., CMA President.
The letter was distributed to hospitals, nursing homes and physician groups. Co-signers with CMA included the California Department of Public Health, California Hospital Association, California Association of Health Facilities, California Association of Physician Groups and the Association for Professionals in Infection Control and Epidemiology California Coordinating Council.
Influenza is responsible for 200,000 hospital admissions and 36,000 deaths nationwide every year. According to the federal Centers for Disease Control and Prevention (CDC), vaccination of all health care workers is strongly recommended to prevent transmission of the illness to patients, especially those with long-term medical conditions who are at high risk for serious complications from the flu. The CDC recommends that all health care workers – even those who are not directly involved in patient care (e.g., clerical, housekeeping and administrative staff, volunteers, etc.) – be vaccinated annually.
According to the CDC, influenza outbreaks in hospitals and long-term care facilities have been attributed to low vaccination rates among health care workers in those facilities. When an employer mandate is in effect, vaccination rates typically exceed 98 percent.
Most health care facilities, including hospitals and skilled nursing homes, are required to offer annual flu vaccines to health care workers and volunteers at no cost. Those who refuse to be vaccinated must sign a written declaration. Despite these requirements, however, the overall vaccination rate for health care workers in all settings remains low.