March 19, 1982
Subject:
Licenses and Licensing; Licensure Inspections of Hospitals.
Requested By:
Mr. I. O. Wilkerson, Jr., Director Division of Facility Services Department of Human Resources
Question:
May the Department of Human Resources adopt a rule which would permit it to use the findings of the Joint Commission on Accreditation of Hospitals in its inspection of a hospital, to determine whether or not the Department of Human Resources should inspect that same hospital under G.S. 131-126.9?
Conclusion:
Yes.
Under G.S. 131-126.9 of the Hospital Licensing Act, the Department of Human Resources (DHR) is empowered to "make or cause to be made such inspections as it may deem necessary." Thus, this statute vests a certain discretion in DHR to determine what hospital inspections are necessary. Therefore, the question presented here will be resolved by an inquiry into whether a reliance on the Joint Commission on Accreditation of Hospitals (JCAH) findings in determining what inspections are necessary is a reasonable exercise of the discretion granted by the statute.
In resolving this issue, it was necessary to consider facts not contained in the original opinion requests. These facts were supplied by Mr. Michael Van Clark, the Hospital Consultant in the Construction Section of the Division of Facility Services. Mr. Clark has informed me that the JCAH standards which are used during its inspections of hospitals encompass every area of the standards used by DHR in licensing hospitals. Moreover, in every case the JCAH standards are at least as stringent as those imposed by DHR licensure regulations. These JCAH inspections are conducted by a term of medical professionals at least every two years.
Based upon the facts presented, I conclude that use of JCAH findings as a criterion in determining whether an inspection of a hospital is necessary would be a reasonable exercise of the statutory discretion. The JCAH standards would, in all cases, be at least as rigorous and inclusive as those found in the Department’s rules. Thus, if the Department were given a complete copy of those findings, it would have the results of an inspection which would be no less rigorous or inclusive than the one which it would conduct itself. If a hospital could pass a JCAH inspection, it would be very likely to pass an inspection by the Department. Therefore, in the exercise of its statutory discretion, it would be reasonable for the Department to decide not to conduct licensure inspections of hospitals which have passed inspections by JCAH, concentrating its attention upon those which have not documented that they have done so.
Since the JCAH inspections would be conducted every other year, the information relied upon by DHR in deciding whether to inspect would never be more than two years old. Presumably, if a JCAH inspection were to occur shortly after a hospital were relicensed, DHR would obtain access to the results and could take any required action regarding the newly-issued license. I recommend that access to a complete copy of the next JCAH inspection report be included in the rule as a condition of being licensed without an inspection. This would assure that DHR does get access to inspections during the licensure period.
Of course, if DHR has information from other sources, which indicates that a hospital is not complying with licensure requirements, then the JCAH report could not relied upon and some sort of follow-up investigation should be conducted. But where no other information is available, I conclude that it is reasonable for DHR to adopt a rule providing that it will use a complete copy of JCAH inspection reports to determine whether to inspect a hospital under G.S. 131-126.9. Given the standards applied in the JCAH inspections, as well as the interval at which they are performed, the JCAH inspections provide a good indicator of whether or not a hospital would pass a DHR licensure inspection.
It should be emphasized in conclusion that the nature of the JCAH standards and the frequency of the inspections are critical factors in the conclusion reached in this opinion. If the JCAH standards are made less stringent, or if the inspections are performed less frequently than every other year, then the conclusion about the authority to adopt the proposed rule could possibly change.
Rufus L. Edmisten Attorney General
William R. Shenton Assistant Attorney General