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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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