The National Practitioner Data Bank (“NPDB”) serves as a repository of information regarding adverse actions taken against medical professionals. Brought about with the stated goal of increasing the quality of healthcare, as well as curbing healthcare fraud and abuse, the NPDB created a national resource to be used as a credentialing reference by various health-related organizations, consolidating a body of information that was previously fragmented among disparate state and federal sources. Information compiled in the NPDB is not available to the general public, but can be accessed by a number of registered entities, including hospitals, state licensing agencies, medical malpractice insurers, professional associations and managed care organizations. These entities routinely use the NPDB to guide their licensing, hiring and credentialing decisions. Various organizations are required to make mandatory reports to the NPDB under certain circumstances, including malpractice judgments, instances of professional discipline, or the loss or limitation of hospital privileges.
Extensive guidance regarding which events must be reported to the NPDB is found in the official NPDB Guidebook. Prior to 2015, the Guidebook had not been updated since 2001, which left many lingering questions as to whether certain events were reportable or not. This led the NPDB to publish new guidance in question-and-answer format in its periodical newsletter, NPDB Insights, in response to common situations where the reportability of any given event was in doubt.
Without any official announcement, the NPDB has quietly updated the Guidebook again for October 2018. Although not differing substantially from the 2015 edition, there are several new or updated provisions of which health care providers should be aware. A link to the Guidebook may be found at https://www.npdb.hrsa.gov/resources/NPDBGuidebook.pdf.
The 2018 Guidebook offers expanded guidance on the proper reporting situations in which a practitioner is impaired. For the purposes of the Guidebook, impairment can be a result of physical or mental illness, injury, incapacitation, or alcohol and drug abuse. Certain reportable events are set forth therein.
Minimum Length of Restrictions for Reporting
The 2018 Guidebook also includes a new section regarding language from federal regulations providing that “a professional review action that adversely affects the clinical privileges of a physician or dentist for longer than 30 days” must be reported. The Guidebook clarifies that the term “adversely affects” is meant to judge the impact of any practice restriction, rather than the manner in which the restriction is written. What this means is that if clinical privileges are restricted or limited for longer than 30 days, the restriction must be reported, regardless of how the reporting entity phrases the terms of the restriction. Summary suspensions may be reported at any time at which the summary suspension is expected to last more than 30 days. However, if a summary suspension is imposed and reported, and the summary suspension ultimately lasts for less than 31 days before it is lifted, the reporting entity is then required to void the report. Other than summary suspensions, other restrictions are reportable to the NPDB once the restriction has been in effect for 31 days. A “restriction” for the purposes of reporting begins on the date on which a physician cannot practice within the full scope of his or her privileges.
The 2018 Guidebook also forecloses the possibility of a practitioner avoiding a mandatory report by entering into a private agreement with a state licensing authority. It sets forth that “any state board action that meets the definition of an adverse action is reportable.” To be reportable, an adverse action must be taken as a result of a formal proceeding, but the outcome need not be publicly available information.
The Guidebook further provides that state licensing entities should not use language in private agreements to limit or avoid NPDB reporting requirements. In other words, a practitioner cannot negotiate a private settlement of a disciplinary matter wherein the medical board agrees not to make a report with the NPDB. The Guidebook even restates the policy goals of the NPDB as justification for this rule: to have the most accurate and complete information available in order to protect patient safety and enhance the quality of healthcare professionals.
Although the NPDB may be treated by practitioners merely as something to be avoided in the course of practice, it is worthwhile to understand how the reporting functions operate and how they might impact one’s career. After all, NPDB reports follow a practitioner wherever they might choose to practice.
Owing to the diverse circumstances where a report may or may not be mandated, it is also not uncommon for reports to be erroneously made in situations where a reporting entity incorrectly assumes they are required to report. Accordingly, physicians should remain vigilant and consult with legal counsel as needed concerning the propriety and impact of an NPDB report.
Weiss Zarett Brofman Sonnenklar & Levy, P.C. is a Long Island law firm providing a wide array of legal services to the members of the health care industry, including corporate and transactional matters, civil and administrative litigation, healthcare regulatory issues, bankruptcy and creditors’ rights, and commercial real estate transactions.
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