Healthcare providers operate in a regulatory environment that is evolving at a dizzying pace. Over the past century, physicians have evolved from being a fully self-regulated profession into a complex system of rigid enforcement controlled by attorneys, compliance officers, and government regulators. However, the most significant aspect of healthcare law, which has changed significantly over the past half-century, is the disciplinary reporting system, which affects everything from physician licensing, privileges, licensing and third-party payer status to the certification of professional bodies and membership in professional associations.
Until the late 1980s, a physician whose license was suspended or revoked in one state could simply transfer his practice to another state or seek employment at a federal healthcare facility operated by the Veterans Administration or the federal prison system. Any company that hires this disciplined doctor would either have to take the doctor’s word on his or her past, or do their own research and investigation to determine if there were any problems with that doctor’s record. Oftentimes, physicians have been able to find employment without disclosure or discovery of the physician’s past harmful or incompetent performance.
Regarding the medical discipline asserted by hospitals and healthcare institutions, the leadership of the medical staff has often been reluctant to punish doctors for misconduct, quality problems, or impairment for fear of retaliation. After an Oregon surgeon successfully sued his hospital medical staff for antitrust violations after a peer-reviewed hearing, Congress grew concerned. A growing body of medical malpractice lawsuits, coupled with a lack of interstate reporting mechanisms for disciplined physicians and pressure from the AMA, eventually led to the passage of the Health Care Quality Improvement Act of 1986 (HCQIA), which went into effect four years later.
The HCQIA has drastically changed the medical landscape in two ways. First, it provided incentives for disciplinary complaints, and second, it granted immunity to hospitals, medical boards, and other agencies that took adverse action against doctors.
The National Database for Practitioners
To ensure the protection of healthcare consumers from physicians with records of malpractice, the HCQIA established a national clearing house for all discipline reporting against all licensed physicians from all sources. Today, this clearinghouse is known as the National Practitioner Data Bank (NPDB). While the general public generally does not have access to the NPDB, registered healthcare organizations that meet certain federal requirements can access the NPDB, a list that is fairly lengthy and includes entities concerned with physician privilege, employment, or professional deal with verification. Entities permitted access to NPDB reports include state regulatory agencies, hospital or health care facility personnel, state and federal law enforcement agencies, professional associations, expert panels, and any third-party payer who contracts with providers. The entities that may file a report on the NPDB include most of the above, as well as medical malpractice payment entities, the DEA, the OIG, law enforcement agencies, and private accrediting organizations.
In other words, whenever a physician is the subject of a formal peer review process that results in disciplinary action or sanction, an NPDB report is generated. Whether this discipline takes the form of fines, penalties, reprimands, suspensions, revocations, or any condition or limitation of practice, such sanction will be reported if imposed by an entity that allows peer review. Thus, the NPDB has become an indispensable tool for the recognition, hiring and firing of doctors.
Immunity for healthcare testing organizations
A frequently asked question: Can a doctor sue the hospital’s medical staff or the admissions office, which imposed sanctions on him and submitted a subsequent report to the NPDB? The answer is always “no”. Through the HCQIA, Congress created an additional incentive for hospitals, state regulatory agencies, and other healthcare organizations to conduct peer reviews without fear of physician backlash.
In return for the timely reporting of medical discipline by these organizations, Congress granted all peer review organizations blanket immunity from decisions made regarding medical discipline, thereby giving them freedom, licensing, and privilege to reprimand, suspend, revoke or limit the medical staff This has encouraged the leadership of the medical staff not to hesitate in deciding whether or not to punish wayward doctors on the staff. Many have argued that this also fueled a wave of ‘performing peer reviews’; more specifically, the use of medical staff discipline to “eliminate” a physician for reasons other than competence or compliance.
In any case, however, improved peer review is an important tool to ensure healthcare facilities maintain the appropriate standard of care, improve their risk management, and avoid potential liability for employing physicians with a pattern or history of malpractice.
Information Collected by the NPDB
The NPDB collects and maintains physician information on all of the following:
• Payments for settlements and judgments for medical malpractice
• Approval and certification measures by state medical associations
• Approval and certification measures by federal authorities
• Adverse actions by hospitals, ambulatory care centers and other healthcare facilities related to clinical privileges, including professional review actions by professional organizations
• Undesirable actions or findings by private accreditation bodies
• Criminal convictions related to the provision of health care
• Civil courts related to the provision of health care
• Exclusions from participation in federal or state health programs
All companies required to report adverse actions to the NPDB must do so or risk losing their immunity under the HCQIA, in addition to possible fines and having their name published in the federal register.
Why you want to avoid reporting to the NPDB
Today, every practicing doctor is dependent on a recognized medical license. Many others are licensed in a medical specialty, are members of a hospital, ambulatory surgery center, or other medical staff at a healthcare facility. Most physicians are authorized providers under third-party payer contracts, and some are recognized or certified by any number of private or government agencies. When a company submits a negative report to the NPDB, it is made available to all those companies, many of whom regularly consult the NPDB. Notification of the adverse effect, depending on its severity, may prompt each of these entities to assert their own disciplinary action or restraint against the physician.
For example, the American Board of Psychiatry and Neurology (ABPN) may suspend or revoke ABPN diplomatic status if a “limitation or condition” is imposed on the board-certified physician for their practice. Many hospitals require medical staff to maintain board certification. Third-party payers, whether federal programs like Medicare, state programs like Medicaid, or commercial payers, will not hesitate to terminate a physician’s provider status if the underlying adverse action is related to a significant quality of care or an insurance fraud issue. Similarly, state licensing boards will take action against licensees who are disciplined by other states’ licensing boards, a process known as “sister state reciprocity.”
What to do if you are reported to the NPDB
An NPDB report is permanent and will remain on the NPDB website for the duration of the doctor’s practice. When an organization submits a report, the reported physician is notified. At this stage there are a number of options. If the doctor just wants to provide their own version of events or explanations on the topic of the report, they can add a 400-word response explanation. The statement becomes part of the NPDB report.
If the doctor disagrees with the accuracy of the report, they must contact the reporting entity and attempt to resolve the dispute directly. Once a report is disputed, the reporting healthcare organization may correct the report, cancel the report, or leave the report unchanged. If after 60 days the doctor has not received a response from the reporting entity or is dissatisfied with the response received, they can escalate the case to Dispute Resolution, which is a longer, more detailed process that involves the appointment of a Dispute Resolution Manager.
take that away
Each physician must ensure, to the extent possible, that any settlement, solution, agreement, or consent decree that it enters into with any civil, administrative, criminal, regulatory, or law enforcement agency does not become the subject of a report to the NPDB. If reporting the adverse action to the NPDB cannot be avoided, working with the reporting entity to try to limit the content of that report is the next best step.
Alex Keoskey, Esq., a board-certified civil litigator and board-certified health compliance officer, is a partner at Mandelbaum Barrett PC in Roseland, NJ, where he focuses on healthcare litigation and complex compliance issues, including the employment, administrative and regulatory defense of healthcare professionals and healthcare facilities Compliance challenges, as well as disciplinary actions by state regulatory agencies, investigations by the OIG, FDA, DEA, and other government agencies, labor claims, medical malpractice lawsuits, billing-related fraud claims, and other lawsuits brought against physicians by government agencies, insurers, and physicians private parties Contact him at [email protected]