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To Avoid Medical Malpractice, Don't You Want to Know WHY Your Hospital Failed Inspection?

Federal law permits the Centers for Medicare & Medicaid Services ("CMS") to reduce or deny Medicare funding for failures to comply with federal standards. Yet, information concerning the provider's deficiencies remains unavailable to the public. Without this information, the public is deprived of a mechanism to avoid hospitals where medical malpractice is prevalent.

"Hospitals, ambulatory service centers, home health agencies and hospices" are permitted "to pay private, national accrediting organizations," such as The Joint Commission, for oversight services to avoid inspection by State Health departments. The private accrediting organization reports, which include such information as errors in medical treatment and medication mix ups, are not made publicly available. C. Ornstein, Secret Data on Hospital Inspections May Become Public At Last, Health, Inc. (Apr. 18, 2017); see also Proposed Rule, 82 Fed. Register 197996, 20144 (Apr. 28, 2017). The availability of private accreditation reports is in stark contrast to government accreditation reports which are made public, as discussed in more detail below. This is important, because CMS reported that 89% of hospitals and psychiatric hospitals are overseen by private accrediting organizations, not the government. Id.

Why is it important for patients to have access to the details of medical provider inspections? "Medical errors are a leading cause of death and injuries in U.S. hospitals." C. Ornstein, Secret Data on Hospital Inspections May Become Public At Last, Health, Inc. (Apr. 18, 2017). According to a November 1999 article published by the Institute of Medicine: "At least 44,000 people and perhaps as many as 98,000 people, die in hospitals each year as a result of medical errors that could have been prevented, according to estimates from two major studies. Even using the lower estimate, preventable medical errors in hospitals exceed attributable deaths to such feared threats as motor-vehicle wrecks, breast cancer and AIDS." Corrigan, J., Donaldson, M., Kohn, L., McKay, T. and Pike, K.: To Err is Human: Building a Safer Health System. Institute of Medicine. (November 1999).

Proposed Transparency: The Proposed Rule seeks to require national accrediting organizations applying or re-applying for CMS approval of their Medicare provider or supplier accreditation programs to agree to make all final accreditation survey reports public on its website within 90 days after the report is made available to the facility. Proposed Rule, 82 Fed. Register 197996, 20144-20145 (Apr. 28, 2017). It seeks to increase transparency by making the results of hospital inspections by private accrediting organizations publicly available on CMS's Hospital Compare website.

The framework is already available to present this information to the public, since the results of State Survey Agency ("CMS") hospital investigations are currently made publicly available. The CMS reports "describe any findings of noncompliance with Federal requirements (also referred to as "deficiencies") that the surveyors may have found." Where deficiencies are identified, CMS also makes public the accepted Plan of Correction, which is "an agreed upon course for achieving compliance to CMS describing how and when, within a reasonable timeframe, [the hospital] will correct them." Proposed Rule, 82 Fed. Register 197996, 20143 (Apr. 28, 2017). However, as stated above 9 out of 10 hospitals opt for investigation by private accrediting organizations.

The Proposed Rule also seeks to reduce the discrepancies in findings between CMS inspections and accrediting organization inspections. It anticipates that once the CMS and accrediting organization surveys are publicized side by side that the health and safety deficiencies identified in both reports will "provide a more comprehensive picture to health care consumers and the public in general." Proposed Rule, 82 Fed. Register 197996, 20144 (Apr. 28, 2017). Perhaps publicly posting deficiencies could even help reduce instances of medical negligence and medical errors, by increasing accountability to the public, and helping the patients decide which medical providers they and their loved ones should seek treatment from.

The CMS is currently inviting public comments on its proposal. Comments may be submitted via mail and also electronically through June 13, 2017 at the following website: http://www.regulations.gov under file code CMS-1677-P. see Proposed Rule, 82 Fed. Register 197996 (Apr. 28, 2017) for additional information.

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