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Acceptance of Voluntary Restrictions on Clinical Privileges

on Friday, 2 July 2021 in Health Law Alert: Erin E. Busch, Editor

The federal Health Care Quality Improvement Act (“HCQIA”) directs creation of what has come to be known as the National Practitioner Data Bank (“NPDB”) and mandates reporting by healthcare entities in two scenarios. The first scenario is when a healthcare entity takes adverse professional review action against a physician’s or dentist’s (together referred to as “practitioner’s”) clinical privileges lasting longer than 30 days based on competence or professional conduct concerns. The second scenario, which is the subject of this discussion, is when a healthcare entity “accepts the surrender of clinical privileges [the statutory iteration] or “accepts the surrender of clinical privileges or any restriction of such privileges” [the regulatory iteration adding the highlighted text] by a practitioner while under investigation or in order to avoid an investigation based on competence or professional conduct concerns.

Importantly, the second scenario does not carry a triggering duration qualifier like the >30 days requirement in the first. Equally important, the regulatory iteration adds what appears to be an additional reportable event – acceptance of a restriction, rather than the statutory acceptance of the surrender of clinical privileges with its implied greater finality. The updated NPDB Guidebook builds substantially on the more transitory nature of voluntary restrictions to conclude that a number of intermediate steps sometimes used during investigations or as an alternative to corrective action require reporting under the voluntary restrictions prong of the regulation.

Perhaps the clearest casualty of this regulatory and Guidebook expansion is the common practice of offering a practitioner at the front end of an investigation the option to voluntarily agree not to exercise privileges while the investigation proceeds. This practice is embedded in many medical staff bylaws and is strongly preferred as an alternative to summary suspension before fact finding is complete. It is consistent with the collegial nature of medical staffs. It does not imply that a required report of surrender or adverse action will not be timely filed once there is something to report. Yet the Guidebook seems to mandate a report regardless of whether (i) the voluntary agreement (call it a restriction on exercise) remains in place for five days or fifty days, (ii) whether the investigation concludes with no adverse action or findings, or (iii) whether there is final, reportable adverse action or acceptance of a voluntary surrender.

In probably the clearest example of how HRSA views the voluntary acceptance of restrictions as different from and in addition to the statutory reference to surrender, the guidebook provides the following Q&A 22 at E-50:

“22. Is an agreement not to exercise privileges during an investigation, without actually surrendering the privileges, a resignation while under investigation and reportable?

Yes….NPDB regulations state that “acceptance of surrender of clinical privileges or any restriction of such privileges…while under investigation” is reportable. An agreement not to exercise privileges is a restriction of privileges. Any restriction of privileges while under investigation, temporary or otherwise, is considered a resignation and must be reported.”

The reference to restriction was added in the final regulation and originally couched in “partial surrender” logic[1], but its expansion of reporting mandates is now broader and in addition to surrender. In practical terms, and assuming for discussion the regulation is authorized by the statute, the Guidebook is saying a 5 or 30 day summary suspension during an investigation is not reportable, but a voluntary agreement lasting 5 or 30 days is. This means medical staffs should at least alert the practitioner to the reportability consequence as he or she weighs whether to voluntarily limit the exercise of privileges rather than face summary action. The summary limitation would make more sense if a practitioner seeks to avoid a premature NPDB report and believes the investigation can be favorably concluded within a 30 day time limit.  

A second scenario where restriction v. surrender is material involves the use of leaves of absence for health or behavioral issues or additional training. The practitioner is often “under investigation” under the Guidebook’s expansive approach to investigations. In discussion with a practitioner health committee, department chair or other investigating body the practitioner may agree to remedial steps that the parties agree have a reasonable chance of fully addressing the issues. The practitioner requests LOA status in order to pursue the steps. LOA status typically precludes exercising privileges and other incidents (and responsibilities) of membership for the duration. Privileges remain intact. At the end of the LOA, if treatment or training are effective, the practitioner resumes practice including full exercise of privileges. If the practitioner is noncompliant or the treatment or training are not fully effective, the practitioner can be subject to reportable adverse professional review action. If the practitioner surrenders some or all privileges instead, that is reportable.

Under the Guidebook, and assuming existence of an investigation and competence or professional conduct concerns, voluntarily requesting and entering into leave status appears to be reportable.

“22. Is a leave of absence while under investigation considered to be a resignation of privileges that is reportable?

If a leave of absence while under investigation restricts privileges, it is reportable.  NPDB’s regulations state that “[a]cceptance of the surrender of clinical privileges or any restriction on such privileges” is reportable.  To the extent a leave of absence restricts a practitioner’s ability to exercise privileges, it is considered a surrender that is reportable.  If a practitioner can take a leave of absence without affecting his or her privileges, and his or her privileges remain intact during the leave of absence, the leave of absence is not reportable to the NPDB.”

Medical staff bylaws set uniform guidelines for all LOAs, typically including no exercise of privileges for the duration, regardless of investigation status or reason for the leave. Privileges remain intact, they just cannot be exercised for the duration, and that condition is uniform for both the practitioner “under investigation” and the practitioner taking leave to care for a sick parent. The Guidebook, however, seems to be treating this standard no exercise condition as a reportable surrender under its restrictions analysis, triggering an immediate reporting obligation. This becomes an added consideration when medical staffs and a practitioner discuss cooperative and voluntary remedial steps under the umbrella of a leave of absence. 

The preceding are only two examples of common voluntary actions that leave privileges intact but trigger reporting as “restrictions” on privileges. There are many more. Medical staffs and their advisors need to look carefully when implementing voluntary and negotiated steps to determine whether they are reportable and take steps to inform practitioners of their position.

[1] 54 Fed. Reg. 42722, 42726 (Oct. 17, 1989).

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