Under Investigation?



NPDB Guidebook Revisions May Increase Risk of Data Bank Reports

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Tex Med. 2017:113(3):49-53.

By Joey Berlin
Associate Editor

If you're about to surrender privileges at a hospital for any reason, and you assume you're in squeaky-clean standing with the facility simply because they haven't indicated otherwise — well, you know what they say about people who assume.

Now, making such an assumption may be riskier than ever following revisions to the National Practitioner Data Bank's NPDB Guidebook. A report to the National Practitioner Data Bank (NPDB) can, among other things, derail an employment opportunity or licensure application, and privilege surrender while you're under investigation is generally reportable. Health care attorneys, concerned about language in the new guidebook that they believe broadens the parameters of what NPDB considers an investigation, are warning physicians to protect themselves if they're stepping away from their facility. When it comes to whether something is reportable to the data bank, physicians are often at the mercy of a hospital's counsel, says Dallas health care attorney Peter Anderson.

"I find it still in practice somewhat hit or miss, and in terms of being on the side of doctors, I find it another area where we're a little bit powerless in that it really matters, what does hospital counsel think?" Mr. Anderson said. "Do they think there is something to report? Do they think there's nothing to report? And I've never had a circumstance where they thought there was something reportable and somehow then we talked them out of it. They're going to do what they're going to do."

The federal agency that handles NPDB says its definition of an investigation hasn't changed, and the latest edition of the guidebook merely "clarifies and codifies existing policies in one place, in writing." But the language in the guidebook, combined with the lack of any required notice for a physician under investigation, highlights the need for doctors to be extra cautious about surrendering privileges or even taking a leave of absence.

What Can Be Reported

The U.S. Department of Health and Human Services' Health Resources and Services Administration (HRSA) oversees the NPDB, the federal government's electronic database (operational since 1990) for reporting adverse physician activity. 

Reports to the data bank are confidential and not publicly available, HRSA notes, but organizations that can access the NPDB reports "use them to make licensing, credentialing, privileging, or employment decisions." HRSA released the latest revision to the NPDB Guidebook in April 2015, its first update in 14 years. 

Mr. Anderson says the fear of appearing in the data bank sometimes drives physician negotiations with entities where they have privileges or with state medical boards pursuing cases of alleged wrongdoing.

"The good news with the data bank is that it's still not open to the public," he said. "The bad news is, with it still not being open to the public, I don't have a good sense of how much weight hospitals, insurance companies, anyone else puts on what's entered in there. And I also don't have a good idea of how seriously they take the doctor's rebuttal or response to a data bank entry."

A report to the data bank can take a physician by surprise. One of Mr. Anderson's recent clients had a hospital approach him about voluntarily surrendering privileges to perform certain surgical procedures. The hospital was critical of the doctor's handling of a particular case.

"Because of where he was in life and where we were at, with dealing with a different thing at the hospital, he signed that deal with the hospital thinking he was doing the right thing — 'OK, let's table that issue until we sort out these other issues.' It never dawned on him that that could be reportable," Mr. Anderson said. "That did become reportable against the doctor, and the hospital did report it."

Any time a physician surrenders or fails to renew clinical privileges at a hospital while under investigation, that event is reportable to NPDB. Either of those individual events, a surrender or an open investigation, is not reportable. In fact, the guidebook explicitly says in both its previous and current versions that health care entities shouldn't report investigations or voluntary relinquishment of a physician's license for personal reasons.

Put them together, though, and you have a reportable event. And now, health care attorneys are worried about the scope of what's reportable because of the newest guidebook's language on investigations. (See "Reportable Actions.")

The 2015 guidebook says NPDB "interprets the word 'investigation' expansively," phrasing that didn't appear in the old version. While NPDB may consult a health care organization's bylaws or documentation for help to determine whether an investigation has begun or is ongoing, NPDB "retains the ultimate authority to determine whether an investigation exists," the guidebook says.

"The NPDB considers an investigation to run from the start of an inquiry until a final decision on a clinical privileges action is reached. In other words, an investigation is not limited to a health care entity's gathering of facts or limited to the manner in which the term 'investigation' is defined in a hospital's by-laws," the guidebook says. "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."

One particular feature of NPDB that has always irked attorneys is the lack of a requirement that physicians know they're under investigation. That's consistent with law and with regulatory language, says Minnesota-based medical staff attorney Elizabeth Snelson, but it doesn't "square with any due-process concept," and she says the 2015 version of the guidebook drives the point home repeatedly.

"I should go through and count how many times, but it makes it bloody clear — they don't want to hide this at all. It does not matter if the physician doesn't know about the investigation," Ms. Snelson said. "The fact that she's under investigation is enough."

Circumstances to Worry About

Ms. Snelson says the changes to the NPDB's guidebook broaden the scope of an "investigation" such that a simple event has the potential to rise to the NPDB standard of what's reportable if that physician surrenders privileges or goes on a leave of absence. 

"This is not stated anywhere, but my presumption is that they're looking to increase the number of reports that they get," Ms. Snelson said. "They want more reports. How do you do that? Well, you cast the net wider. They're looking at 'investigation' as something that begins whenever there's any inquiry into an individual physician's practice or professional conduct."

For example, Ms. Snelson worries that if a hospital staffer made a casual comment to a chief of staff about a physician's erratic behavior the other day, and the chief of staff then simply glanced at the physician's file, the hospital could consider that an investigation. Hilary Young, an Austin attorney who often represents hospitals, agrees the guidebook's language gives "investigation" a new breadth.

But Judy Rodgers, deputy director of HRSA's division of practitioner data banks, told Texas Medicine the 2015 guidebook "simply clarifies the guidelines in the previous guidebook," and those clarifications "do not change NPDB's long-standing interpretation of the term 'investigation' for reporting purposes."

"The guidebook does not expand the meaning of investigation to mean any inquiry," Ms. Rodgers said. "In fact, we clarify that a routine review is not considered an investigation. We emphasize that a formal, targeted process that is used when issues related to a practitioner's professional competence or conduct are identified is considered an investigation for purposes of reporting to the NPDB."

She says an inquiry should "be formal and focused on a particular practitioner; concern that practitioner's professional competence or conduct; and be the precursor to a professional review activity." Under those parameters, Ms. Rodgers says, a surrender of privileges is reportable to NPDB "even if the surrender of privileges is due to an unrelated reason."

Ms. Snelson says the new guidebook has more expansive language on what NPDB considers a surrender to include leaves of absence and situations where a physician may decide not to reapply for a particular privilege. The guidebook says if a practitioner doesn't apply for privilege renewal while under investigation for possible professional incompetence or improper conduct, that situation "is considered a surrender while under investigation and must be reported to the NPDB."

"I have never considered a doctor taking a leave of absence to be a surrender of privileges. These are taken all the time for medical reasons," Ms. Snelson said. Sometimes they're taken for excellent reasons like taking a cruise, any time that you're going to be away from the hospital. … Leaves of absence are common and good but shouldn't trigger this bell of surrendering privileges. For Pete's sake, [it's] taking a cruise or getting your knee replaced."

Ms. Snelson says the new data bank interpretation, for example, would affect an obstetrician-gynecologist who decides to keep his or her gynecological privileges but drop obstetric privileges "for no reason other than you're tired of getting up in the middle of the night. Your quality is fine, you're an excellent obstetrician, but it's time. You want to focus on gynecological surgery, and you want to drop your obstetrical privileges. That decision to drop privileges is a surrender of those privileges."

Protect Yourself: Get It in Writing

Ms. Snelson, who writes hospital bylaws as part of her practice, says she hasn't seen any examples of the revised NPDB Guidebook creating new issues for doctors, "because I think for the most part, medical staffs and hospitals are still fairly unaware that this change is going on." 

"The bylaws that come to me usually don't address these concerns, and they need to and should, and we have ways of doing that," she said. "What I've been advocating is to at least correct the situation where the doctor doesn't know that she's under investigation. And there's certainly ways to do that, and I'm not getting a lot of pushback."

TMA Vice President and General Counsel Donald P. "Rocky" Wilcox says medical staff bylaws typically have "adopted by the medical staff" and "approved by the governing body" language rather than the language courts are used to seeing in contracts. He says attorneys for medical staffs recommend revising the language to say the bylaws are a binding contract for the hospital, the medical staff, and the physician members, and should provide for notice of an investigation.

But the best way for physicians to protect themselves from a data bank report when resigning privileges is to get something in writing from the hospital stating the physician isn't under investigation, attorneys say. You may not have any reason to believe you're under investigation, but the lack of any obligation by the hospital to inform you makes hard documentation necessary.

"In Texas, since the courts have not been willing to consider most hospital medical staff bylaws to be binding contracts on hospitals, written assurance that the specific facts do not warrant a report is needed," Mr. Wilcox said.

"The general rules would be: Don't ever sign any even allegedly innocent corrective action plan without fully reviewing it and without talking to counsel," Mr. Anderson said. "And then the other would be: Don't ever resign your privileges until and unless you know in writing that there is no investigation."

Physicians facing an investigation that might become the subject of a disciplinary proceeding, such as an investigation by the Texas Medical Board, can find medical defense coverage in every Texas Medical Liability Trust (TMLT) policy. TMLT's Medefense covers fines, legal expenses, and penalties associated with disciplinary actions, including professional review actions regarding privileges, state medical licensing board actions, proceedings alleging violations, and more. 

"I always tell doctors, 'It's never you until it's you.' Many of them are naïve and think it's never going to be them because they believe they're a big team player at the hospital and the hospital loves them," Mr. Anderson said. "But I've represented plenty of doctors [for whom] that was the way it was for 20 or 30 years, and suddenly, they're made the bad guy. The more doctors understand what's lurking out there with these hospital investigations and the more potentially sinister this can be, I think the better."

Joey Berlin can be reached by phone at (800) 880-1300, ext. 1393, or (512) 370-1393; by fax at (512) 370-1629; or by email.

Legal articles in Texas Medicine are intended to help physicians understand the law by providing legal information on selected topics. These articles are published with the understanding that TMA is not engaged in providing legal advice. When dealing with specific legal matters, readers should seek assistance from their attorneys.

SIDEBAR

Reportable Actions

Certain actions related to a physician's clinical privileges are reportable to the National Practitioner Data Bank (NPDB), and some aren't. Here are examples, according to the NPDB Guidebook:

Reportable    

  • A physician restricts or surrenders clinical privileges in return for not conducting an investigation related to professional competence or conduct.
  • A physician restricts or surrenders privileges while under investigation related to professional competence or conduct.
  • A facility assigns a practitioner a proctor for more than 30 days based on assessment of competence, and the proctor must grant approval before the practitioner can perform procedures.   

Not Reportable    

  • A facility assigns a practitioner a proctor for more than 30 days based on assessment of competence, but the proctor's presence and approval aren't required for the practitioner to provide medical care.
  • A physician restricts or surrenders clinical privileges for personal reasons but isn't under investigation related to professional competence or conduct.
  • An entity denies a physician a staff appointment or clinical privileges because the entity has too many specialists in the practitioner's discipline.
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