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Many attorneys say: 'Don't report to JCAHO'
Legal counsel has advised officials at West Virginia University Hospital not to report sentinel events to the Oakbrook Terrace, IL-based Joint Commission on Accreditation of Healthcare Organizations, says Linda Flemmer, RN, quality nurse specialist at the Morgantown, WV-based hospital. "We will not inform the Joint Commission unless our CEO decides otherwise," she says. That would be in the case of extenuating circumstances, such as an incident that becomes public knowledge due to intense media scrutiny. The CEO will make decisions on a case-by-case basis.
If the hospital experiences a sentinel event or any other noteworthy incident, the Joint Commission notwithstanding, staff would investigate the occurrence, perform a root-cause analysis, and set corrective measures in place. "That way," says Flemmer, "when JCAHO comes to survey and asks for an analysis, it will be available to them. That would keep them from imposing disciplinary action." West Virginia's sentinel event policy has not been reviewed by the Joint Commission because the 600-bed teaching hospital developed the policy after the hospital's last survey in November 1997.
"I think JCAHO has a laudable cause: They want to try to identify common causes of events so they can be eliminated before they recur," says Flemmer. "Unfortunately, some legal issues stand in the way of JCAHO's intent. My own read is that someone at the Joint Commission came up with the idea, began to implement it, then realized there were unresolved legal issues."
Confidentiality issues pose large stumbling blocks for many hospitals across the country, and there is an overwhelming trend away from reporting, both of the incident itself and its root-cause analysis. Flemmer says only two West Virginia hospitals are even considering voluntary reporting. In both cases, the CEO feels strongly that his facility should, but legal counsel advises against it.
"I don't see this industry ever getting to the point where we'll voluntarily report unless there are stringent laws protecting us. Most people I've talked to about this are not reporting voluntarily," she says, "but they are doing the appropriate root-cause analyses."
Under the Joint Commission's revised sentinel event policy, effective April 1, hospitals are encouraged, but not required, to voluntarily report certain adverse occurrences. (See list of events that are reportable, p. 161.) In all cases, however, a hospital must complete a root-cause analysis, and if the Joint Commission requests, allow the agency to review relevant documentation to determine whether the hospital has adequately investigated and addressed identified problems.
How are you dealing with the issue of confidentiality? Some of your colleagues around the country are heeding their attorneys' advice and not reporting voluntarily. Others are wondering if anonymous reporting may be the way to go. The issue of whether to submit root-cause analyses to the Joint Commission is even stickier, and the best advice seems to be to consult with your legal counsel because the state in which you're located often makes the difference regarding the advisability of reporting.
The Joint Commission is trying to resolve the issue by lobbying for state and federal legislation to protect the confidentiality of information. But they have a lengthy battle through Congress ahead of them. "Our hospital counsel says that even a piece of legislation that's widely supported has a difficult time getting through Congress," says Flemmer. "This will be virtually impossible to pass. Imagine what it would be like with the lobbying groups saying, 'Look, hospitals don't want to tell you that something bad has happened. They're keeping it a secret. Are you sure you want to pass this bill?'"
Flemmer has doubts about the feasibility of the Joint Commission keeping all records confidential. "I'm sure they'll make every effort to do so," says Flemmer, "but if you look at how many hospitals in the country would have to report to them, eventually they would not have the resources to continue to provide confidentiality."
Without question, the Joint Commission is taking steps to protect your interests. Under the policy, no patient or caregiver identifiers should be included in reports or analyses. Further, once the agency has finished reviewing a root-cause analysis, it promises to return all documents. In addition, the agency has stated that it will formally resist efforts by plaintiffs' attorneys or others to discover information contained in root-cause analyses.
The Joint Commission's most recent action appears in a "Dear Colleagues" letter that you will receive shortly. In it, the agency establishes four options for reporting sentinel event-related information. (See list of the four options, inserted in this issue.) If, under advice of counsel, an organization feels that sending information through the mail is problematic for legal reasons, Joint Commission surveyors will come on-site and review the information there. If even that is problematic, another on-site interview option allows for the surveyor not to actually look at the analysis. Instead, he or she will go through a series of questions about how thorough the hospital's process was and what their improvement plan is.
"That way, the organization's legal protections are in place, and we're still allowed to help," says Charles A. Mowll, FACHE, executive vice president of government relations and external affairs at the Joint Commission. "We think the addition of these interview options will alleviate hospitals' attorneys' concerns."
But what if your attorney forbids any communication whatsoever with surveyors, fearing that a flustered staff member may inadvertently speak out of turn and reveal damaging information? Mowll recommends following the advice of your own legal counsel over that of the Joint Commission.
"Hospitals have to listen to their legal counsels," says Mowll. "We would advise hospitals to do that. Our new interview protocols should avoid that problem, but if an organization refuses to give us any information whatsoever after exhausting all four options, that organization will be placed on accreditation watch and faces potential loss of accreditation."
Mowll says when the Joint Commission's sentinel event task force surveyed hospitals about the legality issue, facilities from 15 states returned statements saying that having a surveyor come to the hospital to review the root-cause analysis probably would be safe. Others said their hospitals' attorneys advised them not to share sensitive information in written form or verbally, but sharing performance improvement information would be safe.
However, Mowll confirmed to Hospital Peer Review that a surveyor could be subpoenaed for information inadvertently gained in an interview. Nonetheless, he dismissed that possibility. "We've seen 257 SEs so far and have received a root-cause analysis for every one," says Mowll. "You could argue that perhaps the organizations we worked with weren't well-informed on legal concerns at the time, but we've not had any legal challenges. We will vigorously defend the confidentiality of any information we receive, and go through the courts if necessary."