Although it may be debatable whether privacy is dead or still on life support, physicians have had to live with a system that allows hospitals, insurers, medical boards and others to discover some of their darkest secrets for a quarter century. Physicians who have been disciplined, lost hospital privileges, been convicted of fraud or settled malpractice cases have learned to accept the fact that these incidents will follow them for the rest of their careers. Some of the more ambiguous rules under which this system operates have now been clarified by the federal agency that administers the program, and some perceived loopholes have been narrowed. As a result, some events that previously were not reportable may now be required to be reported.
Some background: Since 1990, reports of certain adverse credentialing and licensure actions and malpractice payments on behalf of physicians have been collected by the National Practitioner Data Bank (NPDB), which was created under the Health Care Quality Improvement Act of 1986. The Health Insurance Portability and Accountability Act of 1996 (HIPAA), better known for its health privacy provisions, created the Healthcare Integrity and Protection Data Bank (HIPDB) to combat health care fraud and abuse and capture convictions and exclusion actions. In 2013, the HIPDB was merged into the NPDB.
Events that are reportable to the NPDB include medical malpractice payments, adverse licensure actions, adverse clinical privilege actions, adverse professional society membership actions, DEA controlled substance registration actions, exclusions from Medicare, Medicaid and other federal programs, negative actions or findings by peer review organizations or private accreditation organizations, state licensure and certification actions, exclusions from a state health care program, health care-related civil judgments in state court, health care-related state criminal convictions, Federal licensure and certification actions, health care-related Federal or state criminal convictions, health care-related civil judgments in Federal or state court and certain other adjudicated actions or decisions.
Congress created the NPDB and directed the Department of Health and Human Services (HHS) to develop regulations to administer it. The Health Resources and Services Administration (HRSA), an agency under HHS, operates the NPDB through its Division of Practitioner Data Bank (DPDB). The DPDB publishes the NPDB Guidebook which represents the agency's interpretation of the statute and regulations, and is a valuable reference tool for practitioners and reporting entities. It can be accessed and downloaded at www. npdb.hrsa.gov. The revised and updated Guidebook was finalized in April 2015 and addresses some areas of frequent confusion, particularly about the reportability of certain actions and events.
What is an 'investigation?'
Investigations by a hospital into a physician's competence or professional conduct are not reportable as such, but the resignation or surrender of privileges or the withdrawal of a renewal application during an investigation or to avoid an investigation is reportable. As a result, it is important to determine when an investigation is deemed to have begun, when it ends, and when a resignation or surrender must be reported.
The revised Guidebook notes that the term "investigation" is interpreted "expansively" and is not determined by how that term may be defined by a facility's policies and procedures. The DPDB may look at bylaws or other documents for guidance in determining an investigation has started.
A routine review of a particular practitioner is not an investigation, (i.e., if a facility runs criminal background checks on all applicants). The investigation must be focused on the practitioner in question, and must generally be the precursor to a licensure or certification action. An investigation begins as soon as the health care entity begins an "inquiry" and does not end until the health care entity's decision-making authority takes a final action or makes a decision to not further pursue the matter. The term "inquiry" is not defined, but the Guidebook states that routine peer review in which a facility evaluates, against clearly defined measures, the privilege-specific competence of all practitioners does not constitute an "investigation." The final revised Guidebook omits previously proposed references to Joint Commission concepts such as Ongoing Professional Practice Evaluation (OPPE) and Focused Professional Practice Evaluation (FPPE), because they may change and not all facilities are subject to Joint Commission accreditation.
The Guidebook requires hospitals to report physicians who surrender privileges or withdraw renewal applications while an investigation is under way even if the physician is not aware of the investigation. An example in the Guidebook indicates that even if the physician has resigned to move to a different state while under investigation, the resignation must be reported. The DPDB has acknowledged that this is a controversial position and is willing to consider additional input from the health care community.
A physician under investigation who takes a leave of absence, even for personal reasons, which restricts the physician's privileges, must be reported. Coupled with the new interpretation that any "inquiry" may begin an investigation, it is possible that physicians who resign or take a leave of absence, i.e., for health or maternity reasons, during any such inquiry may be reported without any advance warning.
An investigation does not automatically end when the practitioner resigns from the hospital staff. An investigation is considered ongoing until the body conducting the investigation, or other authorized body, takes a final action or formally closes the investigation.
What is a reportable Professional Review Action?
Hospitals must report any professional review action that adversely affects the clinical privileges of a physician for a period of more than 30 days or the acceptance of the surrender of clinical privileges, or any restriction of such privileges by a physician, (1) while the physician is under investigation by a health care entity relating to possible incompetence or improper professional conduct, or (2) in return for not conducting such an investigation or proceeding. Clinical privileges include medical staff membership and network participation and panel membership.
One frequent issue involves whether a proctoring arrangement is reportable. If practitioners who have recently been granted clinical privileges are routinely assigned a proctor for 60 days as required by hospital policy, the arrangement is not reportable. If after an assessment of a physician's competence a proctor is assigned for more than 30 days and the proctor must be present or grant approval, the arrangement is reportable. But if the proctoring arrangement is not for a defined period, i.e., one that requires the next 10 surgeries to be observed by the proctor, and if it can be completed within less than 30 days, it is not reportable.
Suspensions which exceed 30 days are generally reportable, but automatic suspensions for failure to complete medical records may not be if they are truly automatic and not discretionary.
A physician who is employed by a hospital or hospital-controlled practice may be terminated without triggering reporting if the termination results in the automatic surrender or termination of clinical privileges or staff membership. This is why hospitals typically deal with employed physicians whose competence or professional conduct is in question as employment matters instead of going through the medical staff bylaws and their due process requirements.
What is a malpractice 'claim?'
A medical malpractice payer must report payments, through an insurance policy or otherwise, for the benefit of a health care practitioner in settlement of, or in satisfaction in whole or in part of, a written "claim" or judgment against the practitioner. A payment made as a result of a suit or claim solely against an entity (such as a hospital, clinic, or group practice) that does not identify an individual practitioner is not reportable. The written claim need not be a formal filing of a suit, but may be any written communication demanding monetary payment based on a practitioner's provision of or failure to provide health care services, including pre-litigation demand letters, emails, texts, etc. Payments made by the practitioner from his or her personal funds are not reportable. There is no de mimimis threshold, so the payment of any dollar amount by a malpractice payer is reportable. Refunds made by an entity (including a practice but not an individual unincorporated practitioner) after a claim also are reportable. However, waiver of debt, such as writing off an outstanding medical bill when a patient complains about the service, is not reportable.
Know your rights
Data Bank reports can have disastrous effects on physicians' careers. Before resolving an investigation, surrendering privileges, withdrawing a renewal application, or settling a malpractice claim, you should consult knowledgeable health care counsel for guidance on how to minimize the potential damage. Even if you have been through this wringer before, the rules have changed and it may now be more difficult to avoid that report.
Previously published in Allegheny County Medical Society Bulletin.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
