AUSTIN, TEX. – Physicians could face more reportable actions to the National Practitioner Data Bank (NPDB) under changes to the data bank’s guidebook.
In its last update of the guidebook, the Health Resources and Services Administration (HRSA) expanded its definition of “investigation” and now interprets the term “expansively” and will not be limited by how hospital bylaws define an investigation.
Data bank officials will review a health care entity’s bylaws and other documents for assistance in determining whether an investigation has started or is ongoing, but they retain “the ultimate authority to determine whether an investigation exists,” according to the guidebook.
The change is significant because it means more reviews by health care entities could be considered investigations by the data bank, regardless of how hospitals regard the assessment, Michael A. Cassidy said at the meeting, which was held by the American Health Lawyers Association.
Michael A. Cassidy
Investigations alone are not reportable to the data bank, but actions taken by doctors during investigations are. This includes:
• Resignation of clinical privileges.
• Failure to renew clinical privileges.
• Lapse of license.
• Leave of absence.
• Relinquishment of panel membership.
The guidebook notes that a routine, formal peer review process under which a health care entity evaluates, against defined measures, privilege-specific competence of all practitioners is not considered an investigation by the NPDB. However, a formal, “targeted process used when issues related to a specific practitioner’s professional competence or conduct are identified” is considered an investigation for purposes of reporting to the NPDB.
The catch for doctors is that their awareness of an investigation is immaterial, said Mr. Cassidy, a Pittsburgh-based health law attorney. In the past, a doctor’s awareness of an investigation was a prerequisite for filing a report with the data bank.
The HRSA’s stance is that “physicians’ awareness of the investigation doesn’t have any impact on whether it’s an investigation or not,” Mr. Cassidy said in an interview. “From a physician standpoint, they want to be aware all the time whether an investigation has started. If they don’t find out an investigation has started until after they get a decision, it’s too late to forestall any of the reporting consequences.”
In addition, the NPDB considers an investigation ongoing until the health care entity takes a final action or formally closes the investigation. Formal closure is not defined, but written notice to the doctor would likely be the best evidence, according to Mr. Cassidy.
Changing medical staff bylaws to include doctors early in the process could help mitigate future investigation woes, he advised.
“It is not enough simply to provide that the doctor will be advised when an investigation starts because that triggers the reporting requirements, and places the parties in an adversarial position,” he said. “The bylaws should require notification to the physician whenever a complaint is made so that the physician can defend himself before it becomes an investigation.”
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