Contract Issues

The JCAHO Responds-Supporting Rights of Due Process

As reported in the last issue of Common Sense, AAEM wrote the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) on July 19, 1999, to urge them to include in its review activities the examination of all contracts which relate to services provided by emergency physicians. Reproduced below is the JCAHO's August 26, 1999, letter of reply, in which JCAHO president Dr. Dennis O'Leary, clearly confirms an emergency physician's right to a fair hearing and appeal.

Dear Dr. McNamara:

I am responding to your letter to me dated July 19, 1999, which expresses your concerns about certain types of contracts between contract management organizations (CMOs) and emergency physicians (EPs). These contracts provide that a CMO can terminate an EP and eliminate his or her medical staff bylaws rights for a basic hearing and appeal process at the hospital to which the physician has been assigned by the CMO. You specifically ask that we share your concerns with our "Professional Standards Advisory Committee." Your letter will be provided to our Hospital Professional Technical and Advisory Committee to consider the issues you raised at its next meeting during the first quarter of 2000.

I would meanwhile like to comment on the issues you have raised, and how our standards relate to them. First, Joint Commission standards are not designed to regulate relationships among providers. Rather, they focus on protecting and improving the quality of care provided to patients. In this context, we ordinarily do not intervene in the development of contractual relationships between health care providers. Indeed, the standards do not prohibit exclusive contracts. Thus, if a hospital has an exclusive contract with an EP group, or an anesthesia group, or a radiology group, our standards do not bar the hospital from changing from one exclusive group to another. This assumes that the hospital, in making this decision, has sought and obtained input from its medical staff, and, has further properly credentialed and privileged the practitioners in the new exclusive group. However, where such exclusive contracts exist, the entitlement to provide care in the hospital lies with the contracting group, not its individual members.

At the same time, if the medical staff in a hospital acts to discontinue or curtail the privileges of a physician who is part of a CMO, that physician is entitled to a fair hearing and appeal. Such a hearing and appeal process, which may rise to the level of the governing body, is expected to explore all of the quality-of-care-related issues bearing on the medical staff action. Again, however, the standards related to this process accord primacy to the quality of care provided to patients. The entitlement of the physician is only to demonstrate that his or her performance has conformed to this objective.

This is obviously a complex subject, and you may find this response to be cryptic in certain respects. Please feel free to call me if you would like to discuss this further. Otherwise, we will await the deliberations of our Hospital Professional and Technical Advisory Committee.

Sincerely,

Dennis S. O'Leary, MD
President, JCAHO

AAEM will be sure to follow-up with the JCAHO's Hospital Professional and Technical Advisory Committee after their meeting in the first quarter of 2000. Watch for updates in future issues of Common Sense.