Satisfying JCAHO's Periodic Performance Review Requirement Without Compromising Confidentiality

By W. Clark Stanton and Rachel Glitz
[April 2004]

Effective Jan. 1, 2004, the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) introduced a new accreditation process, “Shared Visions – New Pathways,” designed to shift applicants’ focus away from periodic survey preparation towards more continuous compliance efforts. A major component of the new process is the Periodic Performance Review (PPR), through which health care organizations formally evaluate their own compliance with JCAHO standards and develop a Plan of Action to address identified points of noncompliance. The PPR takes place half way through an organization’s three year accreditation cycle (18 months prior to its next on-site survey) and is mandatory for every organization due for its next survey on or after July 1, 2005.

The PPR process is intended to draw attention to any compliance weaknesses, enable applicants to formulate a plan for overcoming any compliance failures, and thus encourage participants’ ongoing satisfaction of applicable JCAHO standards and Elements of Performance (EPs). Under the full PPR procedure, the accredited organization is asked to submit information concerning its self-assessment to JCAHO for review. In response to concerns raised by the legal community and health care risk managers about the potential discoverability of this potentially sensitive self-assessment information, JCAHO has developed three alternative procedures for PPR participants. Before embarking upon the new PPR process, we recommend that providers carefully review these alternative procedures in order to determine which option minimizes the legal risks potentially associated with PPR compliance. Because such an assessment will typically involve an analysis of state confidentiality law, consultation with counsel is advised.

Full PPR Procedure

Periodic Performace Review is a three month process that begins with a self-evaluation by the participating entity. Approximately 15 months after the organization’s most recent accreditation survey, it will receive an electronic notification from JCAHO granting access to a secure, password-protected web site on JCAHO’s extranet. Upon notification, the organization must evaluate its compliance with all applicable JCAHO standards and National Patient Safety Goals, using JCAHO’s EPs and accreditation participation requirements (APRs). Under the full PPR procedure, the results of the organization’s evaluation are submitted to JCAHO electronically, via the extranet site, on or before the 18 month point in the organization’s accreditation cycle. The organization’s compliance with JCAHO’s accreditation requirements is automatically calculated based on the scores the organization assigns to the applicable EPs. For any standard identified as “not compliant,” the organization must also develop and submit to JCAHO a Plan of Action to address the problem.

A Plan of Action must detail the corrective actions the organization will take or has taken to comply with an accreditation standard that it does not currently meet. The plan must not only detail the action to be taken but also identify target dates for performance. If the plan identifies an EP that correlates with a JCAHO-approved Measures of Success (MOS), the organization must either describe the MOS¹ or an alternative method that it will use to gauge whether implementation of its Plan of Action succeeds. JCAHO will schedule a telephone conference with the organization to review and approve the Plan of Action during month 19 of the accreditation cycle.

An organization that fails to complete and submit its PPR within 30 days of the due date will have its accreditation status changed to Provisional Accreditation. A continuing failure to satisfy the PPR requirement could ultimately lead to a Denial of Accreditation. However, according to JCAHO, the PPR process is intended to encourage compliance, not punish non-compliance. Provided the process is completed, the results of the PPR and the subsequent development and approval of a Plan of Action do not change an organization’s accreditation score or status at the 18-month midpoint. No further inquiry will occur until the 36-month on-site visit, when the surveyors will verify that the organization has implemented its Plan of Action.

Under both the full PPR procedure and option one (described below), hospitals are expected to work with their medical staffs in the self-evaluation process and must demonstrate to JCAHO that physicians were appropriately involved in the completion of the PPR and development of any Plans of Action.

Alternatives for PPR Compliance

In response to concerns expressed by hospitals and provider organizations about the potential discoverability of PPR information, JCAHO has developed three alternative options to the full PPR procedure described above. These alternatives are available to an organization only upon the advice of its legal counsel, to which the organization must attest. Option one is designed to address concerns that confidentiality might be inadvertently waived should the organization share sensitive performance information with JCAHO. Options two and three are designed to address concerns that the very requirement for a self-assessment at a specified point in time may create a vulnerability to discovery of the self-assessment findings and any related Plan of Action.

Option One

Under the first option, an organization still completes an assessment of its compliance with applicable standards and still develops a Plan of Action and MOS, as necessary, for each element of non-compliance. However, provided it attests to the completion of its assessment, any Plan of Action and, if applicable, MOS, the organization need not actually submit the PPR data to JCAHO. (Note that the organization will nevertheless be required to share any applicable MOS with surveyors during the subsequent triennial on-site survey). Unlike the full procedure, a follow up conference call with JCAHO is not required. However, should the organization choose to schedule a call, it may submit standards-related issues for discussion without indicating its own level of compliance. Because no data is submitted to JCAHO, an organization that chooses option one will not be able to use the PPR extranet tool to automatically score compliance with the JCAHO standards. However, the organization will still be able to print the standards and EPs from the PPR tool to use in order to perform its own assessment.

Options Two and Three

The second and third options shift the assessment burden to JCAHO but at additional cost to the accredited organization. For a fee, the organization may request that JCAHO perform an on-site survey in place of any self-assessment activities. This mid-cycle survey will be approximately one-third the length of the normal triennial survey, performed by a single surveyor and limited in scope to organization–specific issues.

Under the second option, JCAHO provides a written survey to the organization. Should there be any finding of non-compliance, the organization will be required to submit a Plan of Action to JCAHO with any applicable MOS within 30 days of the survey. A conference call will subsequently be scheduled for discussion and approval of the organization’s Plan of Action and any applicable MOS. Just as under option one, the organization will be required to share its MOS with surveyors during the subsequent triennial on-site survey.

Under the third option, a mid-cycle survey is performed but no written report of that survey is provided to the organization and no record of any mid-cycle shortcomings will appear in the organization’s triennial survey unless specifically requested by the organization. Instead, upon completion of the mid-cycle survey, the findings are conveyed orally to the organization’s staff. The surveyors will have those findings when they conduct the organization’s subsequent three-year, on-site survey. However, unless otherwise requested by the organization, compliance will be judged only according to the organization’s standards at the time of the full survey. Thus, unless a shortcoming identified in the interim assessment remains below standard at the time of the full survey, it will not appear in the written assessment of the organization.

Both the first and the third options enable an organization to omit mid-cycle survey findings from any discovery request. Because there is no written report produced by the surveyors, the organization controls the description of any mid-cycle shortcomings. Under the third option, the organization also controls whether such shortcomings are documented at all.

Conclusion

Although JCAHO’s new accreditation process did not become effective until January of this year, because PPR compliance is mandatory for any organization due for its next survey on or after July 1, 2005, some organizations have already tackled the new PPR requirements for the first time. For those hospitals and other health care organizations that have not yet begun the PPR process, we recommend carefully considering the alternative options for compliance. Since JCAHO requires the recommendation of counsel before opting for an alternative, you will want consult with your legal counsel if you are considering use of one of the optional methods for compliance.

FOOTNOTES

1The MOS is a numerical or other quantitative measure, usually related to an audit, that can help determine whether a planned action was effective and sustained.

For further information, contact:

W. Clark Stanton, San Francisco, (415) 276-6538, clarkstanton@dwt.com
Rachel Glitz, San Francisco, (415) 276-6537, rachelglitz@dwt.com
Ingrid Brydolf, Portland, (503) 276-5804, ingridbrydolf@dwt.com
Thomas E. Jeffry, Jr., Los Angeles, (213) 633-6882, tomjeffry@dwt.com
Kathleen Drummy, Los Angeles, (213) 633-6870, kathydrummy@dwt.com
M. Steven Lipton, San Francisco, (415) 276-6550, stevelipton@dwt.com

This Health Law Advisory is a publication of the Health Law Group of Davis Wright Tremaine LLP. Our purpose in publishing this Advisory is to inform our clients and friends of developments in health care law. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may only be given in response to inquiries regarding particular situations.

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