NPDB CHANGES THAT MAY AFFECT YOUWrongful Death
If a doctor’s name appears in the National Practitioner Data Bank (NPDB) or another healthcare data bank, that doctor may have genuine difficulty obtaining hospital privileges, state licenses, HMO affiliations, and other vital credentials and affiliations. The National Practitioner Data Bank collects and discloses – to authorized users – negative information about health care practitioners including malpractice awards, loss of license, or exclusion from participation in Medicare or Medicaid. The NPDB was created by Congress, ostensibly to improve healthcare quality, protect the public, and reduce healthcare fraud and abuse.
The NPDB is managed by the U.S. Department of Health and Human Services (HHS). It contains information about physicians, dentists, and other medical providers who have been targeted by actions such as hospital peer reviews, state license suspensions, and medical malpractice allegations that speak directly to a practitioner’s ability to offer quality medical services to the public. In Texas, a physician should contact an experienced Dallas medical license defense attorney if his or her name ends up in the National Practitioner Data Bank for any reason.
Access to the National Practitioner Data Bank information is restricted, and it is not made available to the general public. However, the NPDB allows hospitals and other healthcare facilities, insurers, professional societies, state medical and dental boards, and a number of other parties to learn quite a lot about a physician. Is the NPDB an invasion of privacy? Many would say that the NPDB is arbitrary and unfair.
Doctors who have lost their hospital privileges or settled a malpractice case in the past know that that these events will be with them for the remainder of their careers. Some of the rather imprecise rules under which the NPDB has operated have recently been simplified by the federal government, and some ambiguities have been cleared up. As a result, some incidents that in the past were not reportable may now be reported to and recorded by the NPDB.
The NPDB was created as a part of the federal Health Care Quality Improvement Act in 1986. Since 1990, it has collected reports of adverse credentialing and licensure actions and malpractice payments on behalf of physicians. Reportable events now include:
- medical malpractice payouts
- state licensure and certification actions
- exclusions from a state healthcare program
- adverse clinical privilege actions
- DEA-controlled substance registration actions
- adverse professional society membership actions
- negative findings or actions by peer review or private accreditation groups
- exclusions from Medicare, Medicaid and other federal programs
- civil judgments in a state or federal court
- federal certification and licensure actions
- other adjudicated decisions or actions
The Department of Health and Human Services operates the National Practitioner Data Bank through its Division of Practitioner Data Bank (DPDB). The DPDB issues the NPDB Guidebook, which sets forth the department’s interpretation of its regulations. A revised Guidebook, issued for 2015, speaks to several common misunderstandings, particularly regarding the reportability of certain events and actions.
WHAT IS AN “INVESTIGATION” ACCORDING TO THE NPDB GUIDEBOOK?
When a hospital checks into a doctor’s professional conduct and competence, that investigation alone is not reportable. However, if a resignation, the surrender of privileges, or the withdrawal of a renewal application is offered to avoid an investigation or is the result of an investigation, that event is reportable. Thus, it is imperative for hospitals and physicians to determine precisely when an investigation officially starts and concludes and if any result of the investigation is reportable.
The 2015 revised NPDB Guidebook notes that it uses the word “investigation” broadly and that the word may be more precisely defined by a particular facility’s procedures, practices, and policies. The DPDB may consider an institution’s bylaws or other documents for help in determining if a formal investigation is in fact being conducted. A routine background check of an individual practitioner isn’t considered an “investigation.”
A reportable investigation must target a specific practitioner and must be the prelude to a potential licensing or certification action. An investigation begins when a healthcare institution or facility begins an “inquiry” and does not conclude until the institution’s or facility’s ruling authority takes an action or decides that no action will be taken. The word “inquiry” isn’t defined, but a routine peer review against clearly defined measures, for instance, doesn’t create an “investigation.”
WHAT ARE HOSPITALS REQUIRED TO REPORT?
Hospitals are required to report doctors who give up their privileges or withdraw their renewal applications while an investigation is underway. Even if a doctor has resigned to move to another state while being investigated, the resignation must be reported. A physician being investigated, who for any reason takes a leave of absence which restricts that physician’s privileges, must be reported.
Investigations don’t necessarily end because a doctor resigns from a hospital’s staff. Investigations are considered open and ongoing until the authority conducting the investigation takes action or concludes the investigation without taking action. Hospitals are also required to report a professional review action that adversely impacts a doctor’s clinical privileges for more than thirty days. Additionally, a hospital must report the surrender or restriction of any clinical privileges by a doctor:
- under investigation by a healthcare entity for incompetence or unprofessional conduct
- in return for not initiating or continuing such an investigation
When a practitioner obtains clinical privileges and a proctor is routinely assigned for sixty days, no report is required. After assessing a doctor’s competence, if a proctor is assigned for more than thirty days and must be present or grant approval, reporting is required. If the proctoring can be completed within thirty days, however, no report is required. Suspensions exceeding thirty days are reportable except for routine suspensions (for example, for a failure to complete medical records) that are genuinely automatic and are not discretionary.
ARE MALPRACTICE CLAIMS OR PAYOUTS REPORTED TO THE NPDB?
Payments made by a medical malpractice payer for the benefit of a physician in settlement of, or made in whole or in part for a written judgment or claim against the individual practitioner, must be reported. A payment for a lawsuit or for a claim against an entity (a hospital, for example) that does not name an individual practitioner is not reportable. It’s not required that the written claim is a formal lawsuit; any document in writing demanding compensation based on a practitioner’s failure to provide professional services, including pre-litigation demand letters, are considered “claims.”
If a physician pays a claim from his or her own personal funds, the claim and payment are not reportable, but all payments made on a physician’s behalf by a facility, institution, or a medical malpractice payer such as an insurance company must be reported. However, when the waiver of a patient’s debt is offered and accepted in substitution for the payment of a claim, the write-off of the debt isn’t reportable. This example makes it easy to see why critics the of the NPDB consider it unfair. It arbitrarily protects some physicians while it singles out others.
NPDB reports can severely damage a physician’s career. Before any physician in Texas withdraws a renewal application, surrenders privileges, or settles a malpractice claim, consult with an experienced Dallas medical license defense attorney. The rules have changed, so even if you’ve dealt with the NPDB previously, retain experienced legal help if your name appears in the NPDB – or if you are facing any reportable complaint, investigation, or claim of medical malpractice.