Comments on Draft HHS Report on Quality Review of Psychiatric Hospitals
January 31, 2000
Comments by Peter Lurie, M.D., M.P.H., Deputy Director and Sidney M. Wolfe, M.D., Director
Public Citizen's Health Research Group
on the Draft Health and Human Services Inspector General's Report:
The External Quality Review of Psychiatric Hospitals (OEI-01-99-00160)
The Inspector General's report does a respectable job of documenting the particular problems in the oversight of psychiatric institutions in the United States. However, when the report summarizes these problems, it tends to downplay their dangers and then generates a list of recommendations that, while individually reasonable, fail to collectively address the enormous inadequacies the report has documented.
The problems identified by the report are widespread and confirm, as did the Inspector General's previous reports on non-psychiatric hospital oversight (The External Review of Hospital Quality; July 20, 1999), that the public is poorly protected by the current system. These problems fall into the categories of conflict of interest, failure to identify individual questionable doctors, infrequent inspections and lack of public accountability.
Conflict of interest
There are three major elements to the external quality review system for psychiatric hospitals in the United States. Most oversight of psychiatric hospitals that participate in Medicare is conducted by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO). Second, in some instances, unaccredited hospitals will elect to be monitored instead by the state rather than by the JCAHO. In addition to the criteria that the JCAHO and the states apply to all hospitals, the Health Care Financing Administration (HCFA) requires that psychiatric hospitals meet two special conditions for participation in Medicare: staff requirements and medical records. Compliance with these two conditions is monitored in the third element of the external quality review system by specially contracted psychiatrists and psychiatric nurses known as contracted surveyors.
The earlier reports confirm that the JCAHO surveys are undertaken in a collegial manner and that "Overall, the system is moving toward the collegial mode of oversight," an approach the reports concluded "may undermine patient protections." This approach "leaves little attention to the investigatory and patient protection efforts that are the core of the regulatory mode." As the present report acknowledges, "the findings from our recent series [on external review of all hospitals] apply also to psychiatric hospitals."
At its core, the JCAHO is riven with conflict of interest: "corporate members" comprise 75% of its board (they pay $20,000 for the privilege), hospitals hand-pick the medical records to be reviewed and hospital surveys are generally announced months ahead of time. This collegial approach cannot adequately protect patients; there is no reason to believe this system works any more effectively for psychiatric patients. For years we have advocated the abolition of the JCAHO's legislatively deemed authority to accredit hospitals for Medicare participation. The organization's pathetic performance in psychiatric care provides further justification for doing so.
The conflict of interest problem is much less an issue for the HCFA contractors and the state inspectors, because they are direct contractors to the federal government and take a regulatory rather than a more collegial approach to quality review.
Failure to identify individual questionable doctors or address specific dangerous practices
The report makes clear that the patient-centered approach of the contracted surveyors provides a comprehensive picture of how patients are actually treated, an approach shunned by the JCAHO, which relies primarily on a paper review. Indeed, the present report makes clear that "The [JCAHO] surveys are unlikely to detect substandard patterns of care or individual practitioners with questionable skills." This is in part because the JCAHO pays little attention to interviewing patients or caregivers.
But even if the contracted surveyors unearth significant problems, the fact that the surveyors' reviews are technically restricted to the two special conditions undercuts the surveyors' effectiveness. Even if major problems are identified, therefore, the surveyors' have to rely upon the ineffective HCFA or the states for actual enforcement. According to the report, "Thus, despite the far-reaching nature of their inquiry, the contracted surveyors are hard-pressed to hold hospitals accountable for problems outside either medical records or staff requirements."
The limited authority of the contracted surveyors especially undercuts their effectiveness in two critical areas: discharge planning and use of restraints. And while the JCAHO process does pay attention to the use of restraints, warning hospitals that a survey is imminent allows them to "clean up their act" in time for the site visit. Obviously, these announced site visits were not sufficient to prevent the abuses of restraints so well documented in the 60 Minutes II segment on Charter Hospitals. Nor were they sufficient to prevent a particularly tragic case documented in the previous Inspector General's reports: "[I]n the Spring of 1996, the Joint Commission awarded one hospital its highest level of accreditation: accreditation with commendation. That Fall, the hospital experienced an unexpected death, triggering the State agency to investigate. In the Spring of 1997, more unexpected deaths occurred, and the agency returned. After a 3-week investigation, that agency found systemic problems in both quality assurance and medical staffing."
For two of the three elements of the psychiatric external quality review system, inspections occur far too infrequently. The present report notes that between Fiscal Year 1993 and 1998 the number of contracted surveys fell from 413 to 146. The average time between surveys increased from 14 months in Fiscal Year 1993 to 3.5 years in 1998. Three psychiatric hospitals had not undergone contracted surveys in more than ten years. There is no mystery as to the cause of this: between Fiscal Year 1993 and 1999, the HCFA budget for these surveys fell from $3 million to $670,000 and the number of contracted surveyors from 147 to 76.
Previous Inspector General reports also documented infrequent inspections by the states. From 1995 to late 1997, the percentage of nonaccredited hospitals that went without a survey in the previous 3.5 years grew from 28% to 50% and the average time between surveys rose from 1.5 to 3.3 years. In part this is because states concentrate their inspection efforts among hospitals with complaints or adverse events.
Lack of public accountability
HCFA at least has a mechanism for monitoring JCAHO inspections: the validation surveys done by the state health departments. (These were described as being of "limited" value in the earlier reports.) But the agency does not even conduct similar surveys for the contracted surveyors and so is restricted to occasional special reports by the contracted surveyors and direct observations. These are grossly insufficient to assure psychiatric hospital quality. Moreover, the contracted surveyors receive little feedback from HCFA and are retrained by the agency only every three years.
As the report documents, "public disclosure plays a minimal role in holding the contracted surveyors accountable." HCFA does not even maintain a web site or central telephone number from which quality assurance findings can be obtained. In the earlier reports, the Inspector General used almost identical language to describe the lack of adequate public disclosure of the JCAHO and state inspections.
In a climate of lack of public disclosure, public discontent will grow. This was reflected in the public response to the 60 Minutes II piece. CBS received approximately 1500 comments on the piece, most of which were supportive. Over 100 of these were from workers reporting serious problems with patient care, mainly at other Charter hospitals (Malmgren H, CBS News, January 24, 2000).
The 60 Minutes II experience also proves that even so conflict-ridden and ineffectual an organization as the JCAHO is capable of reacting to public pressure. Two days after the piece aired, JCAHO teams conducted unannounced inspections at 18 Charter Hospitals. All had some deficiencies and three received failing grades, a rarity for an organization plagued by grade inflation. Since the 60 Minutes II piece, Charter has closed 13 hospitals, plans to sell 40 more, became the focus of both Justice Department and an Inspector General investigation, lost referrals from three major managed care networks and underwent a change of ownership. Because it took a national television program to jolt the JCAHO into action, it is not likely that these after-the-fact inspections represent a systemic change of heart in the organization. More likely, the industry-friendly pseudo-inspections that have characterized JCAHO inspections to date will again become the order of the day.
In general, the findings of the present Inspector General report are consistent with the findings in the previous reports. The fact that generally similar problems persist even in psychiatry, an area in which abuses of patients are particularly well documented, argues for stronger recommendations than in the previous reports. Yet the present report is content for the most part to adopt a less aggressive approach -- one that takes HCFA's promises after the previous reports seriously, even though the agency's history is one in which it has consistently neglected its duties and deferred to the JCAHO.
The fundamental problem in psychiatric (and other) hospital oversight is that the JCAHO has repeatedly been demonstrated to be so close to the industry as to be incapable of providing meaningful oversight. The Department of Health and Human Services should immediately pursue legislation that would revoke the JCAHO's ability to accredit hospitals and should delegate these responsibilities instead to the states, with HCFA oversight.
In the event that HCFA does not seek the dismantling of the JCAHO, we would reiterate the following JCAHO-specific recommendations that we made when commenting on the previous reports:
a. Increase the number of unannounced surveys (the JCAHO has claimed it will now do this but appears to be referring to the 5% of inspections which were previously described as "unannounced," but which actually involved one or two days advanced notice. The other 95% of inspections are likely to continue to have weeks, if not months, notice);
b. Randomly select the medical records to be reviewed instead of allowing hospitals to select favorable records;
c. Incorporate information gathered confidentially from hospital employees and patients; and
d. Disclose the results of the surveys publicly.
The contracted surveyors should retain their roles in the review of psychiatric hospitals, but their role needs to be greatly expanded so that their findings are acted upon more consistently. In the present circumstance, they too often identify problems outside the two special conditions and then are powerless to see them addressed.
Moreover, the contracted surveyors have authority only over free-standing psychiatric hospitals. Yet 66% of Medicare discharges are from psychiatric units that are part of acute care hospitals. The present report suggests meekly that "the contracted surveyors' expertise would be valuable to these units." The report also states that "it would appear timely for HCFA to consider special conditions for both [freestanding psychiatric hospitals and inpatient psychiatric units in acute care hospitals]." These are toothless recommendations for a problem of this magnitude. Clearly the authority of the contracted surveyors should include these psychiatric units.
Although the Inspector General's report recommends "an appropriate minimum cycle" for reviews by contracted surveyors, it is silent on the length of such a cycle. In our view, since even the JCAHO seems to be able to adhere to a three-year cycle, this should be required of the contracted reviewers' inspections as well.
Finally, the present report neglects to make the most obvious recommendation: because the number of inspections by contracted surveyors has declined due to decreased funding, HCFA needs to, at a minimum, restore the funds deleted from this line item in the recent past.