In a recently published report and public letter addressed to Department of Health and Human Services Secretary Kathleen Sebelius, consumer advocacy group Public Citizen expressed concern that some health care entities may not be appropriately reporting physician disciplinary matters as required to the National Practitioner Data Bank ("NPDB"). According to Public Citizen, one-half of all hospitals have never submitted a report, and only one-eighth of the incidents the government estimates should be reported to the NPDB are currently being collected.
Public Citizen's spotlight on potential inconsistent reporting practices has led to concerns that hospitals may not be complying with the NPDB requirements. Public Citizen offers two reasons for the discrepancies: 1) hospitals are disciplining physicians in relatively low numbers due to relaxed peer reviews, and 2) hospitals are taking advantage of reporting loopholes. Another common practice may include hospitals intentionally imposing disciplinary actions below the threshold reporting requirement of 31 days, changing the by-laws, or offering physicians a leave of absence instead of a suspension.
The NPDB was created to be a flagging system that provides a comprehensive review of a health care practitioner's professional credentials. Hospitals are required to both report medical malpractice payments and adverse disciplinary actions to the NPDB and also query every new physician's credentials. Essentially, the NPDB is designed to safeguard the patient and reduce a hospital's risk exposure. Hospitals who fail to participate in reporting and querying may have to face difficult questions about patient safety, doubts about the medical staff's competency, and formal inquires into legal liability.
Currently, hospitals who fail to report to the NPDB face a civil penalty of $11,000 per violation for not reporting malpractice payments, have the hospital's name published in the Federal Register, and lose immunity provisions with respect to professional review activities. With Public Citizen's report and letter shining more light onto hospitals' NPDB reporting activities, it is foreseeable that hospitals will encounter increased pressure from government officials, public interest groups, and individual patients to monitor their reporting and querying standards and practices.
Hospitals should take the necessary steps to assure that policies and procedures meet the NPDB requirements. A well-developed and updated compliance program is fundamental. This could include periodically reviewing internal guidelines for peer review and physician discipline as well as independently assessing the appropriateness of previous peer review conclusions.
On or about July 30, 2009, the Division of Practitioner Data Banks, the unit that administers the Data Bank for DHHS, was to begin sending letters to all hospitals for which it has no record of queries to the Data Bank and/or submitted reports to the Data Bank. The focus of the letters is to remind hospitals of their reporting obligations, and is also the beginning of a more intensive "fact finding" effort to assess hospital compliance with their reporting obligations. Over the past several years the Division has been assessing compliance with NPDB requirements, beginning with insurer reporting of malpractice payments.
Based on our conversations with Division staff, this round of letters is intended to remind hospitals of their NPDB reporting responsibilities and serve as a fact-finding effort. The apparently low reporting rate has raised regulatory concern that hospitals are not disclosing issues as required by law. The Health Care Quality Improvement Act requires reports in the following circumstances:
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medical malpractice payments;
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certain adverse credentialing actions; and
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adverse state licensure actions.
We recommend hospitals take the following steps:
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Confirm they contact the NPDB reporting all new physician applicants and physician reapplicants to their Medical Staff;
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Ensure they report matters where disclosure is mandated by law, after consultation with legal counsel;
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Audit; and
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Consider adoption of a formal policy which clarifies the circumstances under which a report to the NPDB is mandatory.
Hospitals will be asked to supply any additional information necessary to update the Data Bank records and, if needed, a plan for coming into compliance.
See below for a link to the Data Bank website. Resource materials include The Health Care Quality Improvement Act (HCQIA), related regulations, an NPDB guidebook and other information. Sections 11133 and 11135 of HCQIA address querying and reporting responsibilities. Section 11111 establishes qualified immunity protection for hospitals and participants in professional review activities and the requirements to achieve and maintain that protection.
We will keep you posted if there is new or additional information. Contact your Hall Render attorney, or Jim Hogan or Brian Betner at 317-633-4884 if you have any questions.
National Practitioner Data Bank
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