Home | Peer Review Committees and the National Practitioner Data Bank: The Balancing Act
Peer Review Committees and the National Practitioner Data Bank: The Balancing Act
PEER REVIEW COMMITTEES AND THE NATIONAL PRACTITIONER DATA BANK: THE BALANCING ACT
Physicians are highly regulated professionals. They are subject to peer review and state licensure, and much of this oversight occurs at the state and facility level. The National Provider Data Bank was created to increase transparency about adverse findings anywhere. But there is a complex interplay between the National Practitioner Data Bank (NPDB) and professional review boards.
On the one hand, a member of a professional review board can be liable for damages to a practitioner if the adverse action and subsequent reporting to the NPDB was not supported by reasonable efforts to determine the facts. On the other hand, a professional review board can be penalized if it fails to report adverse clinical actions taken against a physician (or other health care practitioner). Indeed, a health care facility that fails to submit adverse determinations can lose immunity protections for up to three years.
This article generally describes the obligations of professional review boards as it relates to practitioners and the NPBD.
One of the primary purposes of the NPDB is to identify practitioners who move from state to state without disclosure of a questionable past. It is an information clearinghouse which collects adverse information related to the professional competence and conduct of physicians, dentists, and, in some cases, other health care practitioners. The adverse data can include:
Certain licensure, clinical privilege, and professional society membership actions.
Drug Enforcement Administration (DEA) controlled-substance registration actions.
Exclusions from participation in Medicare, Medicaid, and other federal health or state care programs.
Health care-related criminal convictions and civil judgments.
Negative actions or findings by peer review and private accreditation organizations.
Certain final adverse actions taken by certain state agencies, including state law enforcement agencies, state Medicaid fraud control units, and state agencies administering or supervising the administration of state health care programs.
Certain final adverse actions taken by federal agencies and health plans against health care practitioners, providers, and suppliers.
Eligible entities who must make reports to the NPDB include medical malpractice payers.
Hospitals and other health care entities with respect to licensed health care practitioners who have entered (or may be entering) into employment or affiliation relationships with or have applied for clinical privileges or appointments to the medical staffs of such hospitals or other health care entities.
Professional societies.
Health plans.
Peer review organizations.
Private accreditation organizations.
Quality improvement organizations.
State licensing and certification authorities.
State law enforcement agencies.
State Medicaid fraud control units.
State agencies administering or supervising the administration of state health care programs.
Federal agencies responsible for the licensing and certification of health care practitioners, providers, and suppliers.
Federal law enforcement agencies and officials.
Health plans.
Persons or organizations requesting information in a form that does not identify any individual or organization.
In addition, practitioners are authorized to query on themselves for information reported to the NPDB. In very limited circumstances, an attorney may request information from the NPDB for use in litigation against a hospital, upon a showing that the hospital failed to request information from the NPDB about a specific health care practitioner.
Eligible health care entities must report:
Professional review actions that adversely affect a practitioner’s clinical privileges for a period of more than 30 days.
Acceptance of a practitioner’s surrender or restriction of clinical privileges (a) while under investigation for possible professional incompetence or improper professional conduct, or (b) in return for not conducting such an investigation or not taking a professional review action that otherwise would be required to be reported to the NPDB.
Reportable actions include (a) reducing, restricting, suspending, revoking, or denying privileges, and (b)a health care entity's decision not to renew a physician's or dentist's privileges if that decision was based on the practitioner's professional competence or professional conduct. Clinical privileges actions are reportable once they are made final by the health care entity. However, summary suspensions lasting more than 30 days are reportable even if they are not final.
A second priority of the NPDB is to address concerns by health professionals that they could be exposed to personal liability under defamation, antitrust or tortious interference claims when they participate in professional peer review that is reported to the NPDB. Federal law regarding the NPDB provides immunity to individuals for reports made to the NPDB unless they have actual knowledge that the information in the report is false. Similarly, state law provides immunity to peer review boards if their action is supported by reasonable efforts to ascertain facts involving the allegations against a physician.
Information reported to the NPDB is considered confidential. The confidentiality provisions require that an eligible entity not disclose the information other than to individuals involved in the peer review process. The Office of Inspector General is authorized to impose civil money penalties on those who violate the confidentiality provisions.
If a clinical privilege action is taken and the practitioner enters a drug or alcohol treatment or rehabilitation program as a result, the adverse action must be reported. This is true even if the treatment is a condition of probation. However, the fact that the practitioner entered a drug or alcohol treatment facility should not be reported.
The NPDB uses the following hypothetical to describe the appropriate use of NPDB data:
A health plan that credentials health care practitioners for participation in various networks includes NPDB query results in the materials presented to its credentialing committee for peer review. If a health care practitioner appeals a denial or termination, the appeal goes to a separate review body that was not involved in the original decision. The appeal body is composed of a statewide representation of health care practitioners who are not employees of the health plan and who are paid for their services. The decision of the appeal body is final. Is providing NPDB query results to the appeal body a violation of the NPDB confidentiality rules?
Answer:No. The NPDB confidentiality provisions do not prohibit an eligible entity from disclosing the NPDB information to others who are part of the peer review process, as long as the information is used for the purposes for which it was provided.
The NPDB describes the following actions as being required to be reported:
Based on assessment of professional competence, a proctor is assigned to a physician or dentist for a period of more than 30 days. The proctor must grant approval before the practitioner can perform procedures.
Based on assessment of professional competence, a proctor is assigned to watch a physician's or dentist's procedures for a period of more than 30 days, and the proctor needs to be present or grant approval before medical care is provided by the practitioner.
A physician or dentist restricts or surrenders clinical privileges; the physician or dentist is under investigation related to professional competence or professional conduct.
A physician or dentist restricts or surrenders clinical privileges in return for not conducting an investigation related to professional competence or professional conduct.
A physician or dentist surrenders clinical privileges for personal reasons but is under investigation for professional competence or conduct.
A physician's or dentist's application for medical staff appointment is denied based on a professional review action related to professional competence or professional conduct.
A physician's or dentist's request for clinical privileges is denied or restricted for more than 30 days based upon an assessment of clinical competence as defined by the hospital.
The NPDB describes the following actions as not being required to be reported.
Based on assessment of professional competence, a proctor is assigned to supervise a physician or dentist for a period of more than 30 days, but the proctor need not be present or grant approval before medical care is provided by the practitioner.
Practitioners who have recently been granted clinical privileges are routinely assigned a proctor for 60 days as required by hospital policy.
A physician or dentist restricts or surrenders clinical privileges for personal reasons; the physician or dentist is not under investigation related to professional competence or professional conduct.
A physician or dentist is denied medical staff appointment or clinical privileges because the health care entity has too many specialists in the practitioner's discipline.
A physician's or dentist's clinical privileges are suspended for reasons not related to professional competence or professional conduct.
The following guidelines generally serve as a safe harbor for immunity:
The professional review board must have the reasonable belief that the action was in the furtherance of quality health care,
It has conducted a reasonable effort to obtain the facts of the matter,
After adequate notice and hearing procedures are afforded to the practitioner as described below, and
It reasonably believes that any action taken by it was warranted by the facts known after such reasonable effort to obtain facts.
A professional review action will generally be presumed to have met the preceding standards if the following procedures are afforded the practitioner.
Notice and Opportunity to be Heard. The practitioner should given notice stating that a professional review action has been proposed to be taken against the practitioner. The Notice should provide the reasons for the proposed action. The Notice should also state that the practitioner has the right to request a hearing on the proposed action and advise the practitioner of the time limit (of not less than 30 days) within which to request such a hearing. Finally, the Notice should provide a summary of the practitioner’s rights at the hearing.
Second Notice of Hearing. If a hearing is requested on a timely basis, the practitioner should be given a second notice stating (1) the place, time, and date of the hearing, which date should not be less than 30 days after the date of the notice, and (2) a list of the witnesses (if any) expected to testify at the hearing on behalf of the professional review body.
Conduct of Hearing. The following standards apply if a hearing is requested on a timely basis.
(A) The hearing shall be held (as determined by the health care entity):
(i) before an arbitrator mutually acceptable to the practitioner and the health care entity,
(ii) before a hearing officer who is appointed by the entity and who is not in direct economic competition with the practitioner involved, or
(iii) before a panel of individuals who are appointed by the entity and are not in direct economic competition with the practitioner involved.
(B) The right to the hearing may be forfeited if the practitioner fails, without good cause, to appear.
(C) At the hearing the practitioner involved has the right—
(i) to representation by an attorney or other person of the practitioner’s choice,
(ii) to have a record made of the proceedings, copies of which may be obtained by the practitioner upon payment of any reasonable charges associated with preparation of the record,
(iii) to call, examine, and cross-examine witnesses,
(iv) to present evidence determined to be relevant by the hearing officer, regardless of its admissibility in a court of law, and
(v) to submit a written statement at the close of the hearing; and
(D) upon completion of the hearing, the practitioner involved has the right—
(i) to receive the written recommendation of the arbitrator, officer, or panel, including a statement of the basis for the recommendations, and
(ii) to receive a written decision of the health care entity, including a statement of the basis for the decision.
NPDB information should not be used as the sole source of verification of professional credentials. The information in the NPDB should serve only to alert eligible entities that there may be a problem with the performance of a particular health care practitioner, entity, provider, or supplier. For example, a settlement of a medical malpractice claim may occur for a variety of reasons that do not necessarily reflect negatively on the professional competence or conduct of the physician, dentist, or other health care practitioner. Thus, a payment made in settlement of a medical malpractice action or claim should not be construed as a presumption that medical malpractice has occurred.
Physicians and other health care organizations can face difficult issues when it comes to peer review organizations and the interplay with the NPDB. It is important to balance the desire for enhanced standards with the rights of individual practitioners.
The law firm of Swanson Hatch, P.A. represents health care providers in complex legal, regulatory, compliance, and professional licensing matters and helps health care organizations establish regulatory compliance programs. Former Minnesota Attorneys General Lori Swanson and Mike Hatch were active participants in health care matters during their respective tenures as attorneys general. They supervised the office’s Medicaid Fraud Control Unit, which enforces state Medical Assistance laws and undertakes actions against medical providers that overbill Medical Assistance. They also provided legal representation to the Minnesota Board of Medical Practice and the Minnesota Departments of Human Services, Health, and Commerce. Prior to her twelve years as Minnesota Attorney General, Lori Swanson previously served as Solicitor General and Deputy Attorney General of the State of Minnesota. Swanson is a member of the American Health Law Association and was named by Health Leaders magazine as one of 20 American making a difference in health care. Before he became Attorney General, Mike Hatch previously served as Commissioner of the Minnesota Department of Commerce for eight years, where he regulated the insurance industry. Lori Swanson can be reached at lswanson@swansonhatch.com, or at 612-315-3037. Mike Hatch can be reached at mhatch@swansonhatch.com, or at 612-315-3037. The firm’s website is www.swansonhatch.com .
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www.swansonhatch.com
431 S Seventh Street, Suite 2545
Minneapolis, MN 55415 612-315-3037
The materials in this article are for informational purposes and do not constitute legal advice, nor does your unsolicited transmission of information to us create a lawyer-client relationship. Sending us an email will not make you a client of our firm. Until we have agreed to represent you, nothing you send us will be confidential or privileged. Readers should not act on information contained in this article without seeking professional counsel. The best way for you to inquire about possible representation is to contact an attorney of the firm. Actual results depend on the specific factual and legal circumstances of each client’s case. Past results do not guarantee future results in any matter.
Physicians are highly regulated professionals. They are subject to peer review and state licensure, and much of this oversight occurs at the state and facility level. The National Provider Data Bank was created to increase transparency about adverse findings anywhere. But there is a complex interplay between the National Practitioner Data Bank (NPDB) and professional review boards.
On the one hand, a member of a professional review board can be liable for damages to a practitioner if the adverse action and subsequent reporting to the NPDB was not supported by reasonable efforts to determine the facts. On the other hand, a professional review board can be penalized if it fails to report adverse clinical actions taken against a physician (or other health care practitioner). Indeed, a health care facility that fails to submit adverse determinations can lose immunity protections for up to three years.
This article generally describes the obligations of professional review boards as it relates to practitioners and the NPBD.
One of the primary purposes of the NPDB is to identify practitioners who move from state to state without disclosure of a questionable past. It is an information clearinghouse which collects adverse information related to the professional competence and conduct of physicians, dentists, and, in some cases, other health care practitioners. The adverse data can include:
- Certain licensure, clinical privilege, and professional society membership actions.
- Drug Enforcement Administration (DEA) controlled-substance registration actions.
- Exclusions from participation in Medicare, Medicaid, and other federal health or state care programs.
- Health care-related criminal convictions and civil judgments.
- Negative actions or findings by peer review and private accreditation organizations.
- Certain final adverse actions taken by certain state agencies, including state law enforcement agencies, state Medicaid fraud control units, and state agencies administering or supervising the administration of state health care programs.
- Certain final adverse actions taken by federal agencies and health plans against health care practitioners, providers, and suppliers.
Eligible entities who must make reports to the NPDB include medical malpractice payers.In addition, practitioners are authorized to query on themselves for information reported to the NPDB. In very limited circumstances, an attorney may request information from the NPDB for use in litigation against a hospital, upon a showing that the hospital failed to request information from the NPDB about a specific health care practitioner.
Eligible health care entities must report:
Reportable actions include (a) reducing, restricting, suspending, revoking, or denying privileges, and (b)a health care entity's decision not to renew a physician's or dentist's privileges if that decision was based on the practitioner's professional competence or professional conduct. Clinical privileges actions are reportable once they are made final by the health care entity. However, summary suspensions lasting more than 30 days are reportable even if they are not final.
A second priority of the NPDB is to address concerns by health professionals that they could be exposed to personal liability under defamation, antitrust or tortious interference claims when they participate in professional peer review that is reported to the NPDB. Federal law regarding the NPDB provides immunity to individuals for reports made to the NPDB unless they have actual knowledge that the information in the report is false. Similarly, state law provides immunity to peer review boards if their action is supported by reasonable efforts to ascertain facts involving the allegations against a physician.
Information reported to the NPDB is considered confidential. The confidentiality provisions require that an eligible entity not disclose the information other than to individuals involved in the peer review process. The Office of Inspector General is authorized to impose civil money penalties on those who violate the confidentiality provisions.
If a clinical privilege action is taken and the practitioner enters a drug or alcohol treatment or rehabilitation program as a result, the adverse action must be reported. This is true even if the treatment is a condition of probation. However, the fact that the practitioner entered a drug or alcohol treatment facility should not be reported.
The NPDB uses the following hypothetical to describe the appropriate use of NPDB data:
A health plan that credentials health care practitioners for participation in various networks includes NPDB query results in the materials presented to its credentialing committee for peer review. If a health care practitioner appeals a denial or termination, the appeal goes to a separate review body that was not involved in the original decision. The appeal body is composed of a statewide representation of health care practitioners who are not employees of the health plan and who are paid for their services. The decision of the appeal body is final. Is providing NPDB query results to the appeal body a violation of the NPDB confidentiality rules?
Answer: No. The NPDB confidentiality provisions do not prohibit an eligible entity from disclosing the NPDB information to others who are part of the peer review process, as long as the information is used for the purposes for which it was provided.
The NPDB describes the following actions as being required to be reported:
The NPDB describes the following actions as not being required to be reported.
The following guidelines generally serve as a safe harbor for immunity:
A professional review action will generally be presumed to have met the preceding standards if the following procedures are afforded the practitioner.
Notice and Opportunity to be Heard. The practitioner should given notice stating that a professional review action has been proposed to be taken against the practitioner. The Notice should provide the reasons for the proposed action. The Notice should also state that the practitioner has the right to request a hearing on the proposed action and advise the practitioner of the time limit (of not less than 30 days) within which to request such a hearing. Finally, the Notice should provide a summary of the practitioner’s rights at the hearing.
Second Notice of Hearing. If a hearing is requested on a timely basis, the practitioner should be given a second notice stating (1) the place, time, and date of the hearing, which date should not be less than 30 days after the date of the notice, and (2) a list of the witnesses (if any) expected to testify at the hearing on behalf of the professional review body.
Conduct of Hearing. The following standards apply if a hearing is requested on a timely basis.
(A) The hearing shall be held (as determined by the health care entity):
(i) before an arbitrator mutually acceptable to the practitioner and the health care entity,
(B) The right to the hearing may be forfeited if the practitioner fails, without good cause, to appear.(ii) before a hearing officer who is appointed by the entity and who is not in direct economic competition with the practitioner involved, or
(iii) before a panel of individuals who are appointed by the entity and are not in direct economic competition with the practitioner involved.
(C) At the hearing the practitioner involved has the right—
(i) to representation by an attorney or other person of the practitioner’s choice,
(D) upon completion of the hearing, the practitioner involved has the right—(ii) to have a record made of the proceedings, copies of which may be obtained by the practitioner upon payment of any reasonable charges associated with preparation of the record,
(iii) to call, examine, and cross-examine witnesses,
(iv) to present evidence determined to be relevant by the hearing officer, regardless of its admissibility in a court of law, and
(v) to submit a written statement at the close of the hearing; and
(i) to receive the written recommendation of the arbitrator, officer, or panel, including a statement of the basis for the recommendations, and
(ii) to receive a written decision of the health care entity, including a statement of the basis for the decision.
NPDB information should not be used as the sole source of verification of professional credentials. The information in the NPDB should serve only to alert eligible entities that there may be a problem with the performance of a particular health care practitioner, entity, provider, or supplier. For example, a settlement of a medical malpractice claim may occur for a variety of reasons that do not necessarily reflect negatively on the professional competence or conduct of the physician, dentist, or other health care practitioner. Thus, a payment made in settlement of a medical malpractice action or claim should not be construed as a presumption that medical malpractice has occurred.
Physicians and other health care organizations can face difficult issues when it comes to peer review organizations and the interplay with the NPDB. It is important to balance the desire for enhanced standards with the rights of individual practitioners.
www.swansonhatch.com
431 S Seventh Street, Suite 2545
Minneapolis, MN 55415
612-315-3037
The materials in this article are for informational purposes and do not constitute legal advice, nor does your unsolicited transmission of information to us create a lawyer-client relationship. Sending us an email will not make you a client of our firm. Until we have agreed to represent you, nothing you send us will be confidential or privileged. Readers should not act on information contained in this article without seeking professional counsel. The best way for you to inquire about possible representation is to contact an attorney of the firm. Actual results depend on the specific factual and legal circumstances of each client’s case. Past results do not guarantee future results in any matter.
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Swanson | Hatch, P.A.
431 S. 7th Street, Suite #2545
Minneapolis, MN 55415
612-315-3037
www.swansonhatch.com