Reel back to 1965, the year Medicare and Medicaid legislation was passed. That year Congress gave the “Joint Commission,” a professional accreditation organization established in 1951, the unique authority to inspect hospitals and determine whether they meet the patient health and safety standards required to treat Medicare patients.

And who do you suppose pays the Joint Commission?

The hospitals that are being inspected. “Today, the Joint Commission collects $113 million in annual revenue, mainly from the fees it charges hospitals for telling them whether they comply with federal regulations,” observes Lisa Venn, J.D. M.A., writing on Advocate Alliance. 

Venn, who is the Manager of Compliance at a large teaching hospital, explains that “Deeming authority means that if Joint Commission gives its seal of approval to a hospital, CMS is satisfied that the hospital is following federal regulations. In other words, hospitals enrolling in the accreditation program only have to please one master. And that master is really nice, accrediting 99% of all hospitals it surveys.”

Thanks to the Medicare bill that passed Congress earlier this month,
however, the Joint Commission will no longer enjoy unique authority
over hospital inspections. The legislation revokes that power, opening
the door for CMS or other agencies to inspect hospitals, and requiring
that, beginning in 2010, the Commission, like any other organization,
will have to apply to CMS for hospital deeming authority, and prove
that its program meets or exceeds Medicare requirements for patient
safety.

To understand why this represents a major win for patients, consider
the history of the Commission.  Over the years criticism has mounted.
In July, 1999 the Department of Health and Human Services Office of
Inspector General published a report
titled "The External Review of Hospital Quality: A Call for Greater
Accountability." The report concluded that Joint Commission surveys are
“unlikely to detect substandard patterns of care or individual
practitioners with questionable skills.”

In its July 2004 report,
the Government Accountability Office (GAO) went further, concluding
that 78% of the time the Joint Commission survey process did not
identify serious deficiencies that were found by State Survey Agencies.
The GAO recommended that “given the serious limitations in (Joint
Commission’s) accreditation program and that efforts to improve this
program through informal action by the Centers for Medicare and
Medicaid (CMS) have not led to necessary improvements, Congress should
consider giving CMS the same kind of authority over (Joint
Commission’s) hospital accreditation program that it has over all other
Medicare accreditation programs.”

For a sense of what GAO might mean by “serious deficiencies, consider what a 2002 Chicago Tribune investigation (“Clean bills of health are awarded despite deaths, infection outbreaks”, Michael J. Berens and Bruce Japsen, Tribune
staff reporters, November 10, 2002) revealed about how the Commission
handled a crisis at Connecticut’s Bridgeport Medical Center. “In early
1997, hospital-borne germs were infecting dozens of patients. Up to one
in five contracted antibiotic-resistant germs after open-heart surgery.
Dust and flies littered the operating room during surgeries, according
to internal hospital records obtained by the Tribune.

“The Joint Commission learned of a potential infection outbreak after
receiving complaints filed by a patient. But the organization decided
not to visit the hospital or conduct interviews with patients or
doctors, hospital and court records show.

“Instead, the Joint Commission reviewed patient files selected and mailed by hospital officials.

“A Joint Commission regional supervisor telephoned the Bridgeport
hospital on Feb. 25, 1997, according to a hospital memo. ‘Based on the
review, he stated that while they appreciated the information which
they have received, no follow-up was deemed by the Joint Commission to
be necessary at this time,’ according to the memo.”

The Bridgeport hospital had been accredited in June 1996, ranked as one
of the top 1 percent best medical centers nationally. It retained a
high ranking even after the hospital settled four lawsuits involving
patients who contracted infections.

“But during the same month that Joint Commission officials closed their
inquiry, state public health investigators conducted a surprise
inspection and found myriad patient care and infection control
violations, such as failure by surgical assistants to wash hands.

“The hospital initiated dozens of reforms after the state inspection
and currently is in compliance with all standards, according to state
public health agencies. Infection rates have been reduced to less than
1 percent from a high of 20 percent.”

It other words, the problem could be solved—if someone put pressure on the hospital.

More recently, over 100 patients and survivors sued Palm Beach Garden
Medical Center, a hospital owned by the for-profit Tenet Healthcare
Corporation, alleging that the hospital performed open-heart surgery in
such unsanitary conditions that patients wound up with gruesome
infections.

Reportedly, dust and dirt covered some surgical equipment. Trash cans
and soil linens were stored in hallways. One patient’s wife said she
saw a medical assistant tear surgical tape with his teeth.

Then there were the bugs. When TheStreet.com’s Melissa Davis dug
into the story, she obtained documents which revealed that over a
period of years the hospital had struggled with, but failed to contain
an insect problem in its operating rooms. “Correspondence between
multiple exterminators and the hospital repeatedly mention…a flying
insect issue in the O.R. The exterminators identify specific
insects—crazy ants, fruit flies, fungus beetles…”

The infections contracted in the operating room led to open, draining
chest wounds. In some cases, the only remedy was “radical
reconstructive surgery—including complete or partial removal of the
patient’s sternum…” according to one complaint

In a four year-period, 106 heart patients at Palm Beach Gardens
developed infections after surgery according to the 2004 lawsuits.
Sixteen died.

Yet the hospital continued to do a brisk business—with the blessing of the Joint Commission.  According to the Tribune,
“Joint Commission officials said they sent investigators to tour the
hospital in August and October 2002. But their findings were withheld
from the public. ‘If we want any modicum of cooperation from the
hospitals, they have to feel we’re not going to put it [investigative
findings] right out on the street,’ the head of the Joint Commission
said.”

When the Joint Commission inspected Palm Beach Gardens in October of
2002, it gave the hospital 94 out of 100 possible points. Later that
month, the Chicago Tribune reports, “inspectors from the
federal Centers for Medicare & Medicaid Services staged a surprise
inspection at Palm Beach Gardens and declared that uncorrected
infection-control deficiencies represented ‘immediate jeopardy’ to
patients.”

In March of 2003, state regulators fined the hospital $323,800—but then
quickly reduced the penalty to $95,000. In 2004, Tenet forked over $31
million to settle more than 100 civil lawsuits—without admitting
wrong-doing.

Bridgeport Medical Center and Palm Beach Gardens are just two examples
of cases where the Joint Commission failed to do its job.  The Tribune‘s
computerized review found 2,352 hospitals that had received state or
federal citations during 2001 for life-threatening deficiencies after
the Joint Commission issued its stamp of approval.  In response, “Joint
Commission officials said surveys represent a ‘snapshot of quality,’
not guarantees of patient safety.” 

The Joint Commission has made some efforts to improve. In 2006, for
instance, it announced that it would begin conducing on-site
accreditation surveys and certification reviews on an unannounced
basis. (In the past, the Commission always politely informed the
hospital when it was coming.)

Given the Commission’s history, legislators’ recent decision to revoke
the unique authority over hospitals might not seem surprising. But in
truth, it took real political will to make this decision. In October of
2007, Venn described how a similar provision simply disappeared from a
bill when legislators were debating SCHIP (State Children’s Health
Insurance Program) funding: “The House version of the bill called for
revoking the Commission’s authority. The Senate’s version did not. When
the House and Senate hammered out a final version, the Joint Commission
wasn’t mentioned anywhere.” It was there—and then it wasn’t.

“This Joint Commission legislative Houdini act is a curious thing,”
Venn commented last year. “It seems that [anything that might alter]
the fate of the nation’s most influential health group would really
raise a raucous.”

But a few weeks ago, when voting on Medicare legislation, Congress
managed to stand up to the Commission’s protectors—and override a veto
by President Bush to boot. Given their success, some legislators may be
thinking, “Hey, this spine thing really works.”