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National Practitioner Data Bank Issues Draft Revised Guidebook

on Monday, 10 February 2014 in Health Law Alert: Erin E. Busch, Editor

On November 22, 2013, a new revised draft of the National Practitioner Data Bank (NPDB) Guidebook was made available to the public. The previous publication date was in 2001, so there were many controversial issues to be addressed in the revised draft. The availability of the revised draft Guidebook was published in the Federal Register on November 27, encouraging public comment. Comments were received through January 31, 2014.


In its announcement of the availability of the revised draft NPDB Guidebook, the Health Resources and Services Administration summarized the revisions as follows:


1. Incorporation of legislative and regulatory changes adopted since the last edition of the Guidebook, including the merger of the NPDB with the Healthcare Integrity and Protection Data Bank (HIPDB);
2. Expanded and improved reporting and querying examples;
3. Tables explaining NPDB policies; and
4. Live links to statutes, regulations and the NPDB website.


Examples of controversies resolved by the revised draft Guidebook include the following:


Reporting of Resignations while Under Investigation:


Prior to the revisions, it was unclear whether routine peer review activities described by the Joint Commission as Ongoing Professional Practice Evaluation (OPPE) and Focused Professional Practice Evaluation (FPPE) constituted an investigation, with the result that a resignation by a practitioner while subject to OPPE or FPPE would trigger a reporting obligation by the hospital. The revised draft Guidebook states that: “A routine, formal peer review process under which the healthcare entity evaluates, against clearly defined measures, the privilege-specific competence of all practitioners is not considered an investigation for the purposes of reporting to the NPDB. However, if the formal peer review process is used when issues related to professional competence or conduct are identified or when a need to monitor a physician’s performance is triggered based on a single event or pattern of events related to professional competence or conduct, this is considered an investigation for the purposes of reporting to the NPDB.”


Nonrenewal and Expiration of Privileges while under Investigation:


Nonrenewals of medical staff appointments and privileges are generally not reportable, however, if the practitioner does not apply for renewal of medical staff appointment or clinical privileges while under investigation by the health care entity for possible professional incompetence or improper professional conduct, or in return for not conducting such an investigation or not taking a professional review action, the event is considered a surrender while under investigation and must be reported to the NPDB.


Reporting of Suspensions based on Failure to Complete Medical Records:

A hospital’s professional review action to suspend a physician’s clinical privileges could be reportable if the suspension is for a period longer than 30 days. This is true even if there is no actual patient harm resulting from the medical record delinquency, IF the hospital determines that the professional conduct could adversely affect the health or welfare of a patient.


Reporting of Malpractice Payments After Individual Physicians have been Dismissed:


Prior to the revisions, it was disputed whether a report of a malpractice payment was required to be reported with regard to an individual practitioner who had been dismissed as a defendant prior to settlement or other determination of liability. The revised draft Guidebook provides: “If a defendant healthcare practitioner is dismissed from a lawsuit prior to settlement or judgment, the payment made to settle a medical malpractice claim or action should not be reported to the NPDB for that defendant healthcare practitioner. However if the dismissal results from a condition in the settlement or release, the payment must be reported to the Databank. In the first instance, there is no payment for the benefit of the healthcare practitioner because the individual has been dismissed from the action independently of the settlement or release. In the latter instance, if the practitioner’s dismissed from the lawsuit in consideration of the payment being made in settlement of the lawsuit, the payment can only be construed as a payment for the benefit of the healthcare practitioner and must be reported.”


Querying by Organizations Contracted for Credentials Verification:


Hospitals are the only health care entities expressly required to query the databank. Indeed, it may be evidence of institutional negligence if a hospital fails to do so with regard to a practitioner who later fails to meet the standard of care and injures a patient as a result. Hospitals are permitted to designate authorized agents to query on their behalf. But if designated as such, credentials verification organizations must submit a separate query on behalf of each hospital for which the organization is performing the credentialing function.


“Querying” by Attorneys:


Plaintiffs’ attorneys may access information from the NPDB if:
1. A medical malpractice action or claim has been filed by the plaintiff against a hospital;
2. The practitioner for whom the information is requested is named in the action or claim; and
3. Evidence is submitted to the DHHS showing that the hospital failed to submit a mandatory query to the NPDB regarding the practitioner.


Querying by Multiple Departments of a Hospital:


A hospital may have more than one office that handles NPDB queries: e.g., medical staff services and human resources. Each department may be registered separately and each may obtain separate Data Bank IDs (“DBID”). However, departments with different DBIDs cannot assist one another. For example, one department cannot download a response from a query entered by another department with a different DBID. Further, special care must be taken to be sure that the same query or report is not submitted twice or used for a purpose other than for which it was intended.


Reporting by Governmental Agencies:


Since the HIPDB has been merged into the NPDB, governmental agencies are required to report enforcement actions such as administrative fines and formal monetary penalties. Perhaps one new benefit is a requirement that the Office of Inspector General report all exclusions from the Medicare programs to the NPDB. There has been sufficient difficulty in health care employers perfecting exclusion checks for compliance purposes, that it cannot hurt to have yet one more database that may reveal a problem. At the same time, it will be important to train all querying personnel on the importance of immediately communicating a reported exclusion.


There is much additional information published in the draft revised NPDB Guidebook. While it is very helpful even in this draft edition, it will be important to watch for the final publication of the Guidebook, presumably in 2014, now that the comment period has ended.


Barbara E. Person

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