House and Senate Committees question validity of Hospitals’ private Accreditation Organizations findings

Wall Street Journal expose of dangerous safety violations ignored by Accrediting Organizations

By
Dr. Phyllis Van Crombrugghe, RN

The Wall Street Journal (WSJ) published a disturbing article concerning dangerous hospital conditions that accreditation organizations (AOs), specifically the Joint Commission (TJC), has given its seal of approval as first-class operations despite serious safety conditions existing within some hospitals. This seal of approval or accreditation can then be advertised to the public by the accredited hospital as an indication of the hospital’s high-quality standards and care. Of course, the conclusion drawn by the public is, this must a safe hospital for them to use for themselves and their loved ones.

TJC is a private non-profit organization that surveys and accredits 80% of U.S. hospitals, including the hospitals for veterans, the Federal Bureau of Prisons and the Indian Health Services. The remaining 20% are surveyed directly by the Center for Medicare and Medicaid Services (CMS) or other smaller private AOs. CMS is tasked with oversight of all AOs. The federal government must rely on AO findings to dispense federal programs health care dollars in a responsible manner. In most acute care hospitals approximately 50% of their patients are funded by federal health care dollars.

The WSJ article published in 2017 {https://www.wsj.com/articles/watchdog-awards-hospitals-seal-of-approval-even-after-problems-emerge-1504889146} compared a database containing hundreds of inspection reports between 2014 to 2016 and found 350 hospitals in the report were in violation of Medicare requirements contained in its Conditions of Participation (CoPs) regulations. CMS issues the CoPs for hospitals participating in the Medicare program. CoPs are regulations all hospitals must follow to receive federally funded healthcare dollars. State Survey Agencies (SA) acting on behalf of Medicare inspect hospitals to ensure compliance with CoPs. Hospitals can elect to engage private CMS approved accreditation organizations to do the inspections in place of the SA.

According to the WSJ report one third of the accredited hospitals contained in their database review stacked up additional violations in 2014, 2015 and 2016. Hospitals are rarely denied accreditation by TJC except for the most appalling and grievous infractions of safety. For example, the WSJ found that less than 1% of the 5000 total hospitals nationwide that were out of Medicare compliance in 2014 had their accreditation revoked. The article cites 30 instances of hospitals that retained full accreditation status despite the violations being severe. CMS labeled the violations as “so significant they caused or were likely to cause, a risk of serious injury or death to patients.” These hospitals kept full accreditation status even though state inspectors found serious safety infractions as well. The WSJ discovered that the 350 hospitals also had serious Medicare safety infractions in the three years preceding the 2014 to 2016 years that were used to create the WSJ article.

Senate Committee Inquiry

The WSJ report prompted the Senate Judiciary Committee to begin inquiries into the matter of AOs and CMS’ reliance on their accreditation findings. In September of 2017 Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, sent a letter to CMS citing the WSJ article and asking what legal obstacles are standing in the way of the agency for making findings by private accrediting agencies public. In the letter Sen. Grassley said, “making facility inspection reports public may go a long way to providing the necessary additional information for patients and their families to make informed decisions about where to seek care.” CMS had proposed exactly that by including it in a provision of the proposed inpatient payment rule for 2018. Hospitals, accrediting organizations including TJC strongly opposed public disclosure citing increased costs to health care systems, exposing of proprietary information and by creating an adversarial role between inspectors and AOs. CMS removed the provision from the final rule of the inpatient payment rule for 2018. CMS said Section 1865 of the Social Security Act appears to indicate the law would prohibit the proposed regulation.

Sen. Grassley has expressed strong support for the transparency of the inspection reports for public use, so he asked what other statutory provisions in addition to section 1865 would need to be changed to legally allow for the regulation to be promulgated. Sen. Grassley said “Access to information is critical to solving problems. The is especially true in cases related to health care and patient safety.”

Sen. Grassley’s oversight work uncovered the fact that AO’s do not have access to the “Immediate Jeopardy and High Priority” cases in CMS’ Automated Survey Processing Environment (ASPEN) database and ASPEN Complaints/Incidents Tracking System (Acts). In response to one of Sen. Grassley’s inquiries CMS Administrator Seema Verma sent a letter noting that ”AOs currently do not have access to ASPEN OR ACTS, nor do we support providing access to these systems” and CMS does “not believe access to ASPEN or ACTS would provide substantive benefit to the AOs or assist them to be more effective in their investigative or enforcement actions.” The letter also noted that CMS is developing a replacement system for ASPEN and ACTS and will consider data needs of AOs as they design the new systems.

House Committee Inquiry

Prompted by the same WSJ article the House of Representatives Committee on Energy and Commerce (House Committee) initiated an inquiry into the CMS’ oversight of CMS approved private hospital AOs. The House Committee is conducting the inquiry pursuant to its oversight authority over CMS in its role of ensuring patient safety and compliance with CoPs by hospitals participating in the Medicare program. CMS in its oversight role of AOs, performs validation surveys in some hospitals that were previously surveyed by CMS approved AOs. CMS produces a disparity rate that focuses on the number of 60-day validation surveys in which the SA finds a condition-level deficiency that the AO did not find. Condition-level deficiencies are the most severe signaling lack of compliance with CoPs. If the disparity is more than 20%, the AO is informed. The disparity rate for hospitals, psychiatric hospitals and critical access hospitals in 2014 and 2015 ran considerably higher than 20%. The AOs use different measurements than CMS SAs to measure compliance with CoPs which TJC says may account for some discrepancies between the two entities. These discrepancies are deemed significant enough to warrant investigation by the House Committee.

The House Committee has requested specific documents for review including hospital accreditation and renewal applications, performance reviews, validation survey feedback, corrective action plans and any correspondence between the AOs and CMS pertaining to the disparity rates. Committees leaders are seeking these answers from CMS and have sent letters to four private national AOs seeking additional information according to a brief follow up article in the WSJ (March 2018). The article quotes CMS as saying: “We will continue to follow our longstanding response protocol and after appropriate agency review is complete we will share a full answer to the committee through that standing process.”

Joint Commission Response

Joint Commission officials have said TJC doesn’t routinely withdraw accreditation of hospitals with safety violations because it focuses more on prevention than penalizing and regulating organizations. The WSJ article (March 2018) quotes Dawn Glossa a spokesperson for TJC as saying, “We intend to respond and see this as an opportunity to share more on the work we do to improve health care quality and patient safety by facilitating high reliability.”

History Lesson

In 1999 June Gibbs Brown, then Inspector General of the Office of Inspector General (OIG), published a report that may be as applicable and timely today as it was in 1999. The title of the document is:

The External Review of Hospital Quality, The Role of Accreditation.

The following excerpts are directly from that document. The full report is easily found on the internet.

The mission of the Office of Inspector General (OIG), as mandated by Public Law 95-452, is to protect the integrity of the Department of Health and Human Services programs as well as the health and welfare of beneficiaries served by them. This statutory mission is carried out through a nationwide program of audits, investigations, inspections, sanctions, and fraud alerts.

The Office of Evaluation and Inspections (OEI) is one of several components of the Office of Inspector General. It conducts short-term management and program evaluations (called inspections) that focus on issues of concern to the Department, the Congress, and the public. The inspection reports provide findings and recommendations on the efficiency, vulnerability, and effectiveness of departmental programs.

PURPOSE: To assess the role of Joint Commission accreditation in the external review of hospital quality.

BACKGROUND: External Quality Review of Hospitals in the Medicare Program

Hospitals routinely offer valuable services, but also are places where poor care can lead to unnecessary harm. The external quality review of hospitals plays an important role not only in protecting patients from harm, but also in implementing the hospitals’ own internal quality efforts. The Federal Government relies on two types of external review to ensure that hospitals meet the minimum requirements for participating in Medicare: accreditation, usually by the Joint Commission on Accreditation of Healthcare Organizations, and Medicare certification, by State Agencies. About 80% of the 6,200 hospitals that participate in Medicare are accredited by the Joint Commission.

FINDINGS: ANNOUNCED SURVEYS

Joint Commission surveys are undertaken in collegial manner and are tightly structured. The approach fosters consistency but leaves little room for probing.

Joint Commission surveys serve as a means of both reducing risk and fostering attention to continuous quality improvement, but are unlikely to either surface substandard care or identify individual practitioners whose judgement or skills to practice medicine are questionable.

While they matter enormously to hospitals, Joint Commission survey results fail to make meaningful distinctions among hospitals.

UNANNOUNCED SURVEYS

The Joint Commission’s reliance on unannounced surveys is limited.

The Joint Commission conducts 1-day random surveys unannounced surveys to ensure continued compliance with accreditation standards between triennial surveys. From June 1995 through May 1998, it conducted such surveys, providing 24 to 48 hours notice, on about 5% of its accredited hospitals.

RESPONSES TO MAJOR ADVERSE EVENTS

The Joint Commission treats major events as opportunities for improvement. Accordingly, it emphasizes education, prevention, and confidentiality but limits public disclosure on the causes, consequences, and responses to such events.

The Joint Commission’s sentinel event policy stresses self-reporting and analysis on the part of the hospitals. Through this approach, it aims to develop a database of events it can analyze for frequency and causes. But ensuring confidentiality to self-reporting hospitals limits public accountability. This presents particular difficulties if, as it [sic] often the case, local concern is heightened because of media reports on the events.

The Joint Commission’s approach emphasize confidentiality, thereby inhibiting public disclosure on the causes, consequences, and responses to major adverse events.

The emphasis on confidentiality of adverse event related information may facilitate the quality improvement agenda of the Joint Commission, but it is at the expense of its public accountability. It leaves the general public with minimal information about how an incident happened and what if anything is being done to prevent more. This presents particular difficulties if the media reports of the incident heighten local concern. In such cases, the public is likely to be looking for assurances from an objective outside party that any problems at the hospital have been addressed and that patient safety is maintained.

Under its current policy, the Joint Commission can offer few specifics to support any such assurances. The results of investigations conducted by State agencies or HCFA {now CMS} itself are likely to be more available to the public.

 ENDNOTE

45. Following are some illustrations of newspaper reports on serious incidents involving patient harm: “Florida Doctor Errs Anew, Taking Toe Without Asking,” The New York Times, July 19, 1995; Lawrence K. Altman, “State Issues Scathing Report on Error at Sloan-Kettering,” The New York Times, November 16, 1995; Richard Saltus, “Patient’s Death Leads to Change at the Brigham,” The Boston Globe, February 16, 1996; Richard Saltus, “Two Surgeons Surrender Licenses after Mistakenly Removing Kidney,” The Boston Globe, June 6, 1996; and “Death in Surgery Reveals Troubled Practice and Lax Hospital,” The New York Times (15 November 1998). (Full OIG report available online)

Endnote (45) from the OIG report is included to illustrate how media influence was a major motivating factor in 1999 prompting regulatory action for change. Now 19 years later the media has prompted the search for regulatory answers to solving the same kinds of problems.

Then and now, TJC is the largest private accreditation organization and still surveys 80% of the all hospitals in the U.S. The remaining 20% of hospitals are still surveyed by other smaller private accrediting organizations, HCFA (CMS) and state agencies.

What’s next?

 How do we ensure more intensified patient safety in hospitals? How do we prevent carelessness in hospitals? How can we prevent any accidental harm to patients in our care? Should the public have access to hospitals’ survey results? Would this information be a windfall for attorneys looking to cash in these disclosures? Is there a better way to survey hospitals to ensure compliance with CoPs and state regulations? Who is best suited to perform the surveys? What answers will Congressional and Senate committees receive from the current inquiries? How will standards change? Do we need to scrap everything and start over? Is there a magic pill to solve this healthcare problem?

Summary

Intentionally omitted from this document are present examples of sensationalized newspaper accounts of specific allegations against hospitals as it can serve no constructive purpose except to rehash the tragedies to provide dramatic impact to this writing. We all read such detailed newspaper accounts that have chilling effects on our very core sensibilities as healthcare professionals. We do not have the answers to the foregoing questions. Calling attention to the issue is an important step toward positive changes, if any can be provided. All of us in healthcare are responsible to look for these answers. We cannot rely on outside forces to pressure the industry to change.  As new information surfaces on the foregoing subject, it is our intention to provide updated reports as they may unfold.

Phyllis Van Crombrugghe has 30 plus years of experience in hospital nursing and has extensive Healthcare Administration experience. She has a Doctoral Degree in Institutional Management (EdD) from Pepperdine. Her dissertation was original research on Healthcare Regulatory Compliance in California hospitals. 

She is an Advisory Board member for Red E Services.

Future Red E Services’ blogs will cover a variety of healthcare subjects that we hope will be of interest to you. We welcome your feedback – post comments below.