Understanding the New National Practitioner Data Bank Reporting Requirements
By Jim Henry
Since its establishment in 1986, the National Practitioner Data Bank ("NPDB") has served as a nationwide clearinghouse for information about matters relating to the professional competence of physicians and other practitioners. Available only to certain entities, the NPDB contains reports of medical malpractice payments, adverse licensure actions, clinical privileging actions, professional board actions, DEA actions, and exclusions from federal and state health care programs.
In October 2018, the NPDB updated its Guidebook for the first time since 2015. The 2018 update contains no substantive policy changes but serves as a clarification of existing guidelines. The most important clarifications are contained in the portion of Chapter E, entitled "Reporting Adverse Clinical Privileges Actions".
Chapter E includes a new section entitled "Length of Restriction", which clarifies that any professional review action that negatively affects a practitioner's privileges for a period of more than 30 days is reportable, regardless of how the restriction is worded. Such a restriction would include, but not be limited to, temporary restrictions that last more than 30 days or permanent restrictions, such as the surrender of clinical privileges while the practitioner is under investigation relating to possible incompetence or improper professional conduct, or in return for not conducting such an investigation or proceeding. Included in the definition of "clinical privileges" are medical staff memberships, network participation, panel memberships, or other circumstances in which a health care practitioner is permitted to furnish medical care by a health care entity.
To be reportable, an adverse clinical privilege action must be based on a practitioner's professional competence or conduct that either could or has adversely affected the health or welfare of a patient. It is up to the entity taking the clinical privileges action to determine whether the conduct or competence meets that requirement. If the requirement is met, the hospital or other health care entity must report the action to the NPDB.
The 2018 Guidebook Q&A for Chapter E modifies the answer to question number nine and adds seven new questions and answers.
The answer to question number nine clarifies that a surrender of medical staff privileges due to personal reasons, infirmity, or retirement, that does not occur in order to avoid an investigation or during an investigation, should not be reported. In considering whether to surrender medical staff privileges voluntarily, practitioners should exercise caution because, even if the practitioner is not aware that an investigation into the practitioner's privileges is being conducted, voluntary surrender of privileges during such an investigation would be reportable.
The answer to new question 22 clarifies that an agreement not to exercise privileges during an investigation, without actually surrendering the privileges, constitutes a reportable restriction.
New question 23 clarifies that, if a leave of absence is taken while under investigation and involves a restriction of privileges, the action is reportable. If the leave of absence does not restrict the practitioner's privileges, it is not reportable.
New question 24 involves a physician who has disclosed on an application for reappointment several malpractice cases and, as a result, the credentials committee requests additional information about the cases. The issue is whether, under such circumstances, the request for additional information is a routine review or has become an investigation. The answer to this question involves a determination of whether the request for additional information is routinely required for practitioners with a similar number of malpractice cases or whether the request constitutes a deviation from routine practice.
New question 25 addresses a practitioner's resignation while subject to a quality improvement plan. If the quality improvement plan is the result of a professional review action, restricts a practitioner's clinical privileges, and is in place longer than 30 days, the quality improvement plan may be reportable. Even if one criterion is not met, a quality improvement plan may still be deemed an investigation if the other requirements of an investigation are present.
New question 31 clarifies that, a requirement that a surgeon operate only with a qualified first assistant, would not be a reportable restriction of privileges if all new surgeons are required to operate with a qualified first assistant. It would be a reportable restriction if imposed on one specific surgeon as a result of a professional review action relating to the surgeon's professional competence or conduct and lasts more than 30 days.
New question 46 clarifies that, if a physician's clinical privileges lapse at the end of a period of appointment following a recommendation by the Medical Executive Committee that the physician not be reappointed, but the lapse occurred prior to a hearing and final action by the hospital's governing body, the nonrenewal is reportable to the NPDB as a resignation of privileges while under investigation.
New question 49 addresses a situation in which a hospital takes an adverse clinical privileges action which was subsequently changed by a court order. In that circumstance, the hospital should report the initial adverse action and then either revise or void the report as appropriate to comply with the court's order.
Although the 2018 update to the National Practitioner Databank Reporting Requirements announces no new substantive reporting categories, new interpretations continue to evolve and practitioners should keep up to date about them, particularly when making decisions about settlement of malpractice cases and when dealing with credentialing and professional board matters.
Jim Henry is a partner with Cabaniss, Johnston, Gardner, Dumas & O'Neal LLP where he specializes in health care law.