2018 NPDB Guidebook Battens Down the Hatches of Resignations While Under Investigation
On October 26, 2018, a new version of the National Practitioner Data Bank Guidebook was published by the Health Resources and Services Administration (HRSA), replacing the prior version published in April 2015.
As background, hospitals and other health care entities are required to report adverse clinical privileges actions to the National Practitioner Data Bank (NPDB) as follows:
- Any professional review action that adversely affects the clinical privileges of a physician or dentist for a period of more than 30 days; or
- The acceptance of the surrender of clinical privileges, or any restriction of such privileges by a physician or dentist:
- While the physician or dentist is under investigation by a health care entity relating to possible incompetence or improper professional conduct; or
- In return for not conducting such an investigation or proceeding.
The 2015 version of the Guidebook drilled down on what would be considered an investigation, making it clear that that term would be construed expansively. That is a continued theme of the revisions in the 2018 version of the Guidebook. The expansive construction of the term “investigation” is important because a failure to report due to a narrow construction of that term could result in sanctions for failing to report to the NPDB. The sanction consists of a loss of immunity under the Health Care Quality Improvement Act of 1986, for three years, for the hospital or health care entity’s good faith professional review actions against physicians and dentists based on their professional competence and conduct.
It is important to note that the Guidebook is sub-regulatory, and thus it is not binding law. However, it stands as valuable guidance, precisely as its name implies, for determining when NPDB reports must be submitted in order to avoid the potential loss of immunity for professional review actions.
With regard to adverse clinical privileges actions, the 2018 Guidebook updates consist of one new section on “Length of Restriction” and a modification on the section entitled “Proctors.” The new version also includes a number of re-worked and new Q&As.
“Proctors” explains that if, as a result of a professional review action based on professional competence or conduct, a proctor is assigned to a physician or dentist for more than 30 days, the assignment is reportable to the NPDB. That is true, however, only if the proctor must approve performance of procedures in advance, or must attend and observe all procedures.
The new section on “Length of Restriction” relates to the hospital or health care entity’s obligation to report a restriction that lasts more than 30 days. It is not possible to word a restriction to avoid that. Occasionally, a restriction will be written to last as long as it takes for a professional skill to be mastered. In that event, the obligation to report doesn’t occur until the restriction has continued for 31 days. But if it is clear from the start that the restriction will last more 30 days, due to the clear statement of the timeframe, the report must be made regardless.
Q & A Question 9’s response has been revised to clarify that, when a physician surrenders privileges due to personal reasons but not to avoid an investigation, it should not be reported, because it was not due to professional incompetence or improper professional conduct or in return for not conducting such an investigation. However, if an investigation was already under way at the time of surrender, characterizing the reason for surrender of privileges as personal reasons does not obviate the report.
New Question 22 asks whether or not an agreement not to exercise privileges during an investigation, without actually surrendering the privileges, is a resignation while under investigation requiring reporting. It is, according to the regulatory requirement to report any acceptance of the surrender of privileges or any restriction while under investigation. Thus, it is not possible to avoid reporting by making a suspension of privileges voluntary.
New Question 23 asks whether or not a leave of absence while under investigation is a reportable resignation of privileges. It is if it restricts privileges. If technically, the leave of absence would allow the physician or dentist to exercise privileges without any additional administrative step, it is not reportable, because there is no apparent resignation of privileges.
New Question 24 asks whether or not a review of an application for reappointment is an investigation if the physician resigns before final action is taken on the reappointment application. The Guidebook instructs that the answer depends on the facts. If, for example, the applicant has revealed a number of malpractice claims, and the reviewing body has specific concerns so that the inquiry deviates from the normal review, the process may be considered an investigation, thus requiring reporting of a resignation during the process.
New Question 25 asks about a the effect of a physician being under a “quality improvement plan.” If a physician resigns while subject to such a plan–is that a resignation under investigation? Yes, if four specific conditions are met: Are privileges restricted under the plan? Is the plan the result of a professional review action? And does it concern the practitioner’s professional competence or conduct? And did it last longer than 30 days? If all answers are yes, the resignation is reportable.
New Question 26 asks when an investigation is considered complete so that a resignation is not considered to have occurred while the practitioner was subject to an investigation. According to the Guidebook, the investigation is considered ongoing until the body conducting it (or another authorized body) takes a final action or formally closes the investigation.
New Question 31 asks whether or not the requirement that a surgeon operate only with a qualified first assistant is a restriction of privileges. Such a requirement is not a restriction if all newly appointed surgeons are subject to it initially. But, if the requirement is imposed on a single surgeon as a result of a professional review activity based on professional competence or conduct and continues for more than 30 days, the requirement would be reportable to the NPDB.
Considering the fact that all of the newly included sections and Q&As seem to create a presumption of reporting to the NPDB, legal analysts are suggesting that the safest approach to reporting questions is to assume that borderline circumstances require reporting as well.