The National Practitioner Data Bank: Requisite Medical and Legal Issues for Physicians

The National Practitioner Data Bank (NPDB) was established by the Health Care Quality Improvement Act (HCQIA) of 1986, as amended (42 U.S.C. 11101-et. seq.) The HCQIA invokes great authority over physicians to the NPDB. The HCQIA authorizes the NPDB to collect reports of adverse licensure actions against physicians such as revocations, suspensions, reprimands, censures, probation, and surrenders; adverse clinical privileges actions against physicians; adverse professional society membership actions against physicians; Drug Enforcement Administration (DEA) certification actions; Medicare/Medicaid exclusions; and medical malpractice payments made for the benefit of any healthcare practitioner.(1)

A broad spectrum of organizations have access to the NPDB data systems. These include hospitals, healthcare facilities that have recognized peer review processes and provide healthcare services, and state medical boards. Individual physicians may self-query. Medical malpractice payers, state medical boards, professional societies with formal peer review, and hospitals report information under HCQIA.(1)

This article reviews NPDB reporting procedures, offers an overview of what actions must be reported to the NPDB, discusses some recent case law reflecting developments in applicable reporting to NPDB, addresses special issues facing the aging physician in light of the Age Discrimination in Employment Act (ADEA) and the Americans with Disabilities Act (ADA), and gives an update on peer review and medical staff litigation. All of these topics are critical for physicians to comprehend, because the playing field in medicine has changed dramatically since the introduction of corporate medicine.(2) Playing the game of hospital medicine without knowing the game’s rules is like walking in quicksand.

National Practitioner Data Bank Reporting

The NPDB is a repository for reports of medical malpractice payments and certain adverse actions related to healthcare practitioners. Its purpose is to be an alert system to collect and divulge unfavorable information about physicians in order to restrict their ability to continue their medical practice without patients knowing of their previous issues of competence or unprofessional actions.(1)

What information is reported to the National Practitioner Data Bank?

A wide swath of data is reportable, and is important for physicians to understand what is included. Reportable facts include medical malpractice payments, licensure restrictions related to professional fitness and conduct, clinical hospital privilege restrictions related to professional competence and conduct, DEA certification actions, and sanctions and exclusions related to participation in Medicare, Medicaid, and other federal healthcare programs. All of these are reported to the NPDB.

Why is it important for physicians to understand National Practitioner Data Bank reporting requirements?

Reporting and not reporting to the NPDB can have serious consequences for a physician’s career and reputation. The NPDB does not provide a private cause of action (which allows a private plaintiff to bring a legal action based directly on a public statute, the Constitution, or federal common law), and entities that report practitioners improperly may face lawsuits from the reported practitioner for damage to their career or reputation damage or intentional infliction of emotional distress. The impact of the report depends on the proximate and contiguous circumstances and also on the language used in the report. Alternatively, failing to report to the NPDB when required by law may have grave consequences.

Failing to report may have serious repercussions:

• Any malpractice payer that does not report medical malpractice payments is subject to civil penalty for each payment not reported.

• Any hospital or healthcare entity that fails to report unfavorable actions will have its name published in the Federal Register, and the healthcare entity will lose its immunity from liability under Title 4 with respect to professional review for three years.

• Additionally, the secretary of Health and Human Services (HHS) shall publish a public report of the government agencies that have failed to report information as required.

What actions must be reported to the National Practitioner Data Bank?

Hospitals and other healthcare bodies with formal peer review must report professional review actions grounded upon “professional review action” that are related to professional competence or conduct negatively affecting clinical privileges for a period of longer than 30 days, or when physicians relinquish privileges while under investigation or to circumvent an investigation.

The category “clinical privileges” includes:

• Hospital practice privileges;

• Hospital medical staff membership; and

• Hospital network participation.

A “professional review action” is a peer review action that is based on the competence or professional conduct of an individual physician that could negatively impact the medical care of a patient (3. 42 U.S.C. & 11151(9).

Legal Requirements and Mechanics of Reporting Physicians Under Applicable Law

A Texas court determined that a physician’s restriction to practice begins at the time a physician cannot practice the full scope of his/her practice (Walker v Memorial Health System of Texas, 231 F. Supp. 3 d 210 (E.D. Tex 2017). Walker was a general surgeon holding medical staff privileges at a hospital in Lufkin, Texas. The hospital issued Walker a corrective action plan following a peer-review evaluation of his medical care of patients.

The improvement plan mandated that Walker’s surgical privileges be restricted until he performed five bowel surgeries with a proctor. The corrective action plan did not specify a time period during which that requirement had to be met. After 30 days, Walker had not completed the five bowel surgeries, and the hospital reported him to the NPDB. Walker sued the hospital seeking injunctive relief.

The court held that the hospital erred because the corrective action failed to specify a time period. The court concluded “whether a proctoring sanction is reportable should be established by the terms of the sanction at the time it is delivered, and not by whether, in fact, it takes more than 30 days to satisfy the requirement.” The revised NPDB Guidebook(1) states, “a restriction begins at the time a physician cannot perform the full scope of privileges.”

From the NPDB’s perspective, the report to the NPDB should be made if the restriction lasts for a period of time exceeding 30 days regardless of the number of cases needed in the corrective action. The NPDB clarifies that an agreement not to exercise privileges during an investigation is a restriction of privileges. Any restriction of privileges while under investigation is considered a relinquishment of privileges and must be reported. A practitioner cannot voluntarily agree to restrict privileges to avoid reporting. The 2018 Guidebook states that if a proctor is required for a physician to engage in clinical privileges for more than 30 days it is reportable. Alternatively, if a proctor is not necessary, the action should not be reported.

When Does the Review Process of Reapplication Become an Investigation?

Before 2018 it was unclear when the review process for reapplication became an investigation. The 2018 Guidebook answers the question, stating that this depends on whether “the reappointing hospital had specific concerns” about the applicant’s competence. The NPDB Guidebook makes it clear that follow-up questions do not necessarily create an investigation. Resignation of an applicant prior to a final decision of an applicant’s reappointment, where there are specific concerns about the applicant’s competence, are reportable.

The Age Discrimination in Employment Act and Americans with Disabilities Act

Twenty-five percent of American physicians are 65 years of age or older, and 50% of the U.S. physician force is 50 years of age or older. There are no laws or rules regulating the competency assessment of aging physicians. Aging has variable effects on people’s cognitive and physical fitness capacity. This issue is extremely complex, because colleagues may be reluctant to question the competence or skill of an aging physician who has had a long, respected career and is a staple in the community.

In the employment context, assessing age- and health-related competency issues links two sets of laws—the disability and age discrimination laws. Fair employment laws and the Age Discrimination in Employment Act (ADEA 29 U.S.C. §§ 621–634) attempt to prevent discrimination in employment based on age. The Americans with Disabilities Act (ADA: Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat) attempts to prevent discrimination on the basis of disability. For decades, courts seemed to accept the notion of mandatory retirement ages if they were imbedded in public safety. There are no case reports in which a court reviewed a healthcare employer’s mandatory retirement age. The feeling is that courts would likely reject mandatory retirement age. The trend has been, instead, to use screening mechanisms that test cognitive and physical fitness. The disability discrimination provisions of the ADA strive for case-specific, individualized assessment.

The ADA and ADEA in the Medical Staff Context

The ADA and ADEA do not apply where a physician is only a member of the medical staff. Hospitals have more autonomy to adopt age and cognitive or fitness for duty examinations in this context, including age-based competency testing. Testing should have a relationship to the nature of the privileges, and the person doing the testing should have a clear, detailed understanding of the physician’s practice and the necessary cognitive and physical skills. For example, a radiologist needs good visual acuity, and a surgeon must have a steady hand, manual dexterity, and physical stamina.

Title 3 of the ADA was found by one court to create a cause of action for a physician who was terminated from a hospital medical staff (Hetz v. Aurora Medical Center of Manitowoc County, Case No. 1: 06-C-636 (E.D. Wis. June 18, 2007).

The physician was allowed to advance a claim that the hospital improperly denied him staff privileges due to a disability. Dr. Nolan Hetz was disabled by bipolar disorder and sleep apnea. Aurora Medical Center brought a motion to dismiss based upon the argument that Title 3 applied only to the hospital’s clients and visitors.

The court found that that the intent of Title 3 ADA does not support such an interpretation, and that a physician acting as an independent contractor may sue a hospital under ADA Title 3 for denial of staff privileges. The court ruled that Dr. Hetz was, like a patient, a person using the hospital for personal benefit and the good of the public. The court’s take-home point was that hospitals should careful to ensure that any fitness-for-duty testing is consistent, job-related, and consistent with business necessity.

Peer Review and Medical Staff Litigation

A cardiologist was summarily suspended by the medical executive committee for what the hospital considered substandard care provided to one of the cardiologist’s patients. The peer review committee noted four peer review incidents and 10 anonymous reports involving inadequate care or management as support for the suspension (Murphy v. Advocate Health and Hospitals Corp., 2017 IL. App. (4th) 16053).

The hospital’s medical staff bylaws stated that upon suspension a physician is entitled to request an intraprofessional conference, and that such a conference must occur within a defined period of time. The bylaws also provided that the physician would have the right to “inspect all pertinent and non-privileged information in the hospital’s possession prior to the intra-professional conference.” The hospital granted the conference, but the physician alleged they did not give complete access to the records he requested. The hospital provided only the four peer review records. The panel recommended that the hospital maintain the summary judgment.

The cardiologist sued for injunctive and declaratory relief. The Licensing Act of Illinois requires hospitals to include certain minimum procedures in their bylaws related to staff privilege decisions (The Hospital Licensing Act of Illinois 210 ILCS 85/10). The law includes a right to a fair hearing for administrative summary suspension. The court ruled the cardiologist had a right to inspect all applicable records to the intraprofessional conference. The court’s take-home message was to follow the complete process with issues related to medical staff privileges.

A second case addresses whether a physician has a property interest in medical staff privileges and whether a hospital violates its bylaws by using a summary suspension on a non–patient care case (Jason C Chang MD v. The Rehabilitation Hospital of the Pacific, 2019 WL 3430767 (U.S. District Court Hawaii July 30, 2019).

Dr. Chang was the Chief Medical Officer at the hospital. His medical staff privileges were summarily barred by the hospital in response to accusations of sexual harassment. Chang filed a complaint for declaratory and injunctive relief, citing violations of federal and state constitutional due process rights, federal and state law, and hospital bylaws. Chang requested the court to enjoin the hospital from reporting his suspension to the NPDB.

The facts of the case were as follows. In March of 2019, two hospital employees brought claims about Chang to human resources. The allegations were that Dr. Chang had sexually harassed them. The hospital hired an outside attorney to investigate the situation. Dr. Chang was placed on “restrictions and directives” pursuant to medical staff bylaws. The attorney determined that Dr. Chang had engaged in unwelcome sexual activity, including sexual intercourse, toward the employees using coercion and intimidation. After required process, Dr. Chang’s medical privileges were summarily suspended.

Critical issues addressed by the court included the following:

• Does Dr. Chang have a property interest in his medical staff privileges that triggers constitutional due process protection? No.

• Did the hospital follow HCQIA due process requirements of a formal hearing before summarily suspending the physician? Yes.

• Does HCQIA require imminent danger to exist before a summary restraint is imposed? No.

• Does sexual harassment of an employee rise to the same level of wrong-doing as impairing patient safety? Yes.

• The court found that:

• The hospital had followed HCQIA’s requirements and was denied an injunction.

• The suspension was proper, and the hospital could report to the NPDB.

• The hospital did not violate hospital bylaws by issuing a summary suspension on a non–patient medical care case.

Conclusion

Physicians would be prudent to understand NPDB reporting procedures: what actions must be reported to the NPDB; the case law applicable reporting to NPDB; the special issues facing the aging physician in light of the Age Discrimination in Employment Act (ADEA) and the Americans with Disabilities Act (ADA); and recent evolving peer review and medical staff litigation. This knowledge and understanding will help physicians participate in peer review and will reduce the likelihood of a physician being a subject of NPBD reports.

References

1. NPDB Guidebook Update 2018; https://www.npdb.hrsa.gov/resources/aboutGuidebooks.jsp .

2. Shem S. Man’s 4th Best Hospital. Berkeley, 2019.