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Reprinted with permission from ProPublica.
by Charles Ornstein 

The public could soon get a look at confidential reports about errors, mishaps and mix-ups in the nation’s hospitals that put patients’ health and safety at risk, under a groundbreaking proposal from federal health officials.

The Centers for Medicare and Medicaid Services wants to require that private health care accreditors publicly detail problems they find during inspections of hospitals and other medical facilities, as well as the steps being taken to fix them. Nearly nine in 10 hospitals are directly overseen by those accreditors, not the government.

There’s increasing concern among regulators that private accreditors aren’t picking up on serious problems at health facilities. Every year, CMS takes a sample of hospitals and other health care facilities accredited by private organizations and does its own inspections to validate the work of the groups. In a 2016 report, CMS noted that its review found that accrediting organizations often missed serious deficiencies found soon after by state inspectors.

In 2014, for instance, state officials examined 103 acute-care hospitals that had been reviewed by an accreditor in the past 60 days. The state officials found 41 serious deficiencies. Of those, 39 were missed by the accrediting organizations. This disparity “raises serious concerns regarding the [accrediting organizations’] ability to appropriately identify and cite health and safety deficiencies” during inspections, CMS officials wrote when they released draft regulations including the proposed change on Friday.

The move follows steps CMS took several years ago to post government inspection reports online for nursing homes and some hospitals. ProPublica has created a tool, Nursing Home Inspect, to allow people to more easily search through the nursing home deficiency reports; the Association of Health Care Journalists has done the same for hospital violations.

Those government inspection reports do not identify patients or medical staff, but they do offer a description—often detailed—of what went wrong. This includes medication errors, operations on the wrong patient or the wrong body part, and patient abuse.

But private accrediting organizations, the largest of which is The Joint Commission, have not followed suit, creating a patchwork of disclosure in which some inspections are public and others are not. CMS’ proposed rules are designed to fix this.

“We believe it is important to continue to lead the effort to make information regarding a health care facility’s compliance with health and safety requirements” publicly available, CMS officials wrote.

“It’s huge, absolutely,” says Rosemary Gibson, a patient safety expert who wrote a book, Wall of Silence, about medical errors. “Right now the public has very little information about the places where they’re putting their life on the line, and that’s just not acceptable. If you’re a good place, what are they afraid of?”

Medical errors are a leading cause of death and injuries in U.S. hospitals. A 1999 report by the Institute of Medicine estimated that up to 98,000 people a year die because of mistakes in hospitals; subsequent reports have said the number is much higher.

To qualify for federal funding, health facilities have to meet minimum requirements, known as Medicare conditions of participation. If a health facility has problems and doesn’t fix them, it stands to lose its Medicare funding. Though this rarely happens, it can be crippling for an institution and could force it to close.

State health departments get funding from CMS to inspect facilities to ensure they comply with these requirements. But the law also allows hospitals, ambulatory surgery centers, home health agencies and hospices to pay private, national accrediting organizations for such oversight. The Joint Commission conducts unannounced inspections at hospitals at least once every 39 months, and more often if complaints arise. Though accreditors have to be approved by the secretary of Health and Human Services, they rarely take punitive action against the organizations they oversee. Of the 4,018 hospitals listed on the The Joint Commission’s website, more than 99 percent have full accreditation and only seven are on track to lose their “gold seal of approval.”

The Joint Commission said it is reviewing the CMS proposal and couldn’t comment further. A smaller competitor, the Healthcare Facilities Accreditation Program, said it supports the goal of transparency but is studying what the change would mean in practice, both in terms of staffing and costs. “We haven’t talked to our hospital partners,” says Gary Ley, its executive director. “It would be a major change for them also. It’s hard not to support the goals but we have to look at the execution.”

For its part, the American Hospital Association said it supports providing the public “useful information” about hospital quality, but has doubts that detailed inspection reports fit that description.

“It’s important that the information shared with consumers has a clear purpose, is transparent and is readily understood by folks from all walks of life, not just those with deep expertise in health care,” says Nancy Foster, AHA’s vice president of quality and patient safety, in a statement. “We are concerned that sharing a detailed report may not be the most useful or effective strategy for informing the public.”

Foster says it might be more useful to provide a one- or two-page “accurate summary” of inspection findings, with “key takeaways” and why they are important. “This summary could also draw from the plan of correction the hospital creates and summarize how the hospital plans to address the findings,” Foster says.

For years, accreditors have been accused of putting the interests of the facilities that pay them ahead of patient safety. In 2002, the Chicago Tribune reported how The Joint Commission gave its seal of approval to “medical centers riddled by life-threatening problems and underreporting of patient deaths due to infections and hospital errors.”

Last week, BuzzFeed News reported how an Oklahoma psychiatric hospital was named a “Top Performer in Key Quality Measures” by The Joint Commission even though police records, state inspection reports and lawsuit records showed that it “is a profoundly troubled facility where frequent violence endangers patients and staff alike, where children as young as 5 are separated from their parents and held in dangerous situations, and where wards lack adequate staffing and staff lack adequate training.”

In a response to BuzzFeed, the company that runs the hospital, Universal Health Services, said it “is proud of the care it provides patients at Shadow Mountain Behavioral Health.”

On its website, The Joint Commission allows users to check the accreditation status of hospitals but provides scant information of what went wrong, even when hospitals are described as receiving a “preliminary denial of accreditation.” For one hospital, the explanation is: “Existence at time of survey of a condition, which in The Joint Commission’s view, poses a threat to patients or other individuals served.” The threat itself is not disclosed.

Consumers Union’s Safe Patient Project and other patient safety organizations have been pushing for years for more information about hospital inspections. Lisa McGiffert, who directs the Safe Patient Project, hopes this may be the opportunity for change. “The information that’s available now is so minimal and would not really inform anyone about real quality of a hospital,” she says.

Comments on the proposal may be submitted from April 28 to June 13 through the CMS website.

Disclosure: Ornstein was previously president of the Association of Health Care Journalists. While he served in that position, AHCJ called for The Joint Commission to make its inspection reports public. The Joint Commission declined to do so.

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Photo by expertinfantry/ CC BY 2.0

At this moment, the president of the United States is threatening to "throw out" the votes of millions of Americans to hijack an election that he seems more than likely to lose. Donald Trump is openly demanding that state authorities invalidate lawful absentee ballots, no different from the primary ballot he mailed to his new home state of Florida, for the sole purpose of cheating. And his undemocratic scheme appears to enjoy at least nominal support from the Supreme Court, which may be called upon to adjudicate the matter.

But what is even worse than Trump's coup plot — and the apparent assent of unprincipled jurists such as Supreme Court Justice Brett Kavanaugh — is the Democratic Party's feeble response to this historic outrage. It is the kind of issue that Republicans, with their well-earned reputation for political hardball, would know how to exploit fully and furiously.

They know because they won the same game in Florida 20 years ago.

During that ultimate legal showdown between George W. Bush and Al Gore, when every single vote mattered, a Democratic lawyer argued in a memorandum to the Gore team that the validity of absentee ballots arriving after Election Day should be challenged. He had the law on his side in that particular instance — but not the politics.

As soon as the Republicans got hold of that memo, they realized that it was explosive. Why? Many of the late ballots the Democrats aimed to invalidate in Florida had been sent by military voters, and the idea of discarding the votes of service personnel was repellent to all Americans. Former Secretary of State James Baker, who was overseeing the Florida recount for Bush, swiftly denounced the Democratic plot against the soldiers, saying: "Here we have ... these brave young men and women serving us overseas. And the postmark on their ballot is one day late. And you're going to deny him the right to vote?"

Never mind the grammar; Baker's message was powerful — and was followed by equally indignant messages in the following days from a parade of prominent Bush backers including retired Gen. Norman Schwarzkopf, the immensely popular commander of U.S. troops in the Desert Storm invasion that drove Saddam Hussein's army out of Kuwait. Fortuitously, Schwarzkopf happened to be on the scene as a resident of Florida.

As Jeffrey Toobin recounted in Too Close to Call, his superb book on the Florida 2000 fiasco, the Democrats had no choice but to retreat. "I would give the benefit of the doubt to ballots coming in from military personnel," conceded then-Sen. Joseph Lieberman, Gore's running mate, during a defensive appearance on Meet the Press. But Toobin says Gore soon realized that to reject military ballots would render him unable to serve as commander in chief — and that it would be morally wrong.

Fast-forward to 2020, when many of the same figures on the Republican side are now poised to argue that absentee ballots, which will include many thousands of military votes — should not be counted after Election Day, even if they arrived on time. Among those Republicans is Justice Kavanaugh, who made the opposite argument as a young lawyer working for Bush in Florida 20 years ago. Nobody expects legal consistency or democratic morality from a hack like him, but someone should force him and his Republican colleagues to own this moment of shame.

Who can do that? Joe Biden's campaign and the Democratic Party ought to be exposing the Republican assault on military ballots — and, by the same token, every legally valid absentee ballot — every day. But the Democrats notoriously lack the killer instinct of their partisan rivals, even at a moment of existential crisis like this one.

No, this is clearly a job for the ex-Republicans of the Lincoln Project, who certainly recall what happened in Florida in 2000. They have the attitude and aptitude of political assassins. They surely know how to raise hell over an issue like military votes — and now is the time to exercise those aggressive skills in defense of democracy.

To find out more about Joe Conason and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.