By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
Doctors, nurse practitioners, and other health professionals often consult with the attorneys of The Health Law Firm to challenge adverse reports made about them to the National Practitioner Data Bank (NPDB). These reports may be filed by hospitals, medical groups, the Department of Defense (DOD) or the military, the Veterans Administration (V.A.), or their employers. An adverse NPDB report can be career ending and have many collateral adverse implications. So it is important to be aware of what may constitute an unauthorized report.
Many times we find that the reporting authority has violated the federal regulations on NPDB reporting and has filed an adverse report that is not authorized by law.
What Types of Events Are Authorized to Be Reported?
There are three major types of occurrences that can give rise to a proper adverse NPDB report. In general and simply stated they are:
1. Settlements and judgments paid by an insurer on behalf of a health provider on a medical malpractice case.
2. Disciplinary action taken by a state licensing board or authority against the license of a health professional.
3. Adverse action against the clinical privileges or medical staff membership of a health profession.
There are several others, but these are the main ones that we see over and over again.
What Types of Actions Are Not Reportable to the NPDB?
Employment Termination. We routinely see termination of employment actions, especially those taken against doctors, nurse practitioners, psychologists, and other licensed health professionals improperly reported to the NPDB. Even when the termination may have been due to some episode involving adverse patient care, unless all of the due process rights required by the Health Care Quality Improvement Act (HCQIA) were given to the individual, this is not reportable.
Suspension of Clinical Privileges for Failure to Complete Medical Records. Actions by a hospital or other privileging facility against a physician, nurse practitioner or other health professional for failing to complete or sign health records in a timely manner are not reportable to the NPDB.
Termination of Clinical Privileges for Administrative Matters. The revocation of clinical privileges due to a physician’s or nurse practitioner’s failure to maintain board certification because the provider has moved farther away from the hospital. Failure to attend staff or committee meetings or failure to pay staff dues generally are not reportable.
Termination of Clinical Privileges or Medical Staff Membership by Operation of Contract. The automatic termination of the physician’s or nurse practitioner’s clinical privileges because of ending of or terminating of a contract or employment pursuant to a contract is not reportable. Likewise, if the physician’s medical group loses its contract for exclusive services with a hospital and clinical privileges terminate because of that, there should be no report.
Loss of Insurance Coverage. Termination of clinical privileges or medical staff membership based on loss of or inability to obtain insurance is not a reportable event.
Failure to Become Board Certified Within a Certain Period of Time. The inability to obtain board certification within the period of time required by a contract or by the medical staff bylaws is not a reportable vent.
Being Investigated or Having a Complaint Filed Against You. A complaint or an investigation into a practitioner’s competence or conduct is not reportable unless the practitioner surrenders privileges to avoid the investigation, fails to renew them while under investigation, or resigns to avoid the investigation. So, consult an experienced health lawyer before taking any such actions.
Matters Related to Medical Condition or Illness. Actions or inactions that are attributable to a physician’s or other health professional’s medical condition or illness should not be reported. Most often we see this in the case of mental illness on the part of the practitioner. However, we have also seen what might first appear to be negligence or misconduct that later turns out to be a medical condition such as a brain tumor or undiagnosed diabetes.
Military Cases of Nonjudicial Punishment (Article 15, UCMJ) and Administrative Discharges. Over the past few years we have seen a tremendous increase in the number of potential clients that have contacted us about the reporting of noncriminal administrative disciplinary proceedings under Article 15 of the Uniform Code of Military Justice (UCMJ). These are referred to as nonjudicial punishments (or NJPs) because they are not considered to be criminal actions. They are administrative in nature with few or no due process rights attached, similar to noncriminal traffic offenses. The U.S. Supreme Court has ruled in several different cases that Article 15 proceedings could not be treated as criminal convictions for any purpose. Yet we have been advised of and seen a number of such cases reported to the NPDB by the DOD because they are against a physician or other health professional. However, until a physician, professional association or veterans group challenges this, it may be allowed to continue.
If you receive notice that you may be reported to the NPDB, contact The Health Law Firm.
Many organizations, especially the military and the Veterans Administration (VA) will provide a physician or nurse practitioner with advance notice that it intends to report them to the NPDB. We see this in numerous cases where the medical care at issue occurred many years prior or where the practitioner is retired from or no longer a member of that organization. If you receive a notice of intent to report, your should immediately retain ane experienced health attorney to assist you in preparing a response.
Don’t Wait Until It’s Too Late, Contact Experienced Health Law Attorneys.
The Health Law Firm attorneys routinely represent physicians, physician assistants (PAs), nurses, nurse practitioners (NPs), dentists and other health professionals in dealing with reports being made to the NPDB, disputing NPDB reports and appealing NPDB reports. They also handle hospital clinical privileges hearings, medical staff fair hearings, and medical staff peer reviews. Its attorneys include those who are board certified by The Florida Bar in Health Law as well as licensed health professionals who are also attorneys. To contact The Health Law Firm, please call (407) 331-6620 or Toll-Free (888) 331-6620 and visit our website at www.TheHealthLawFirm.com
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About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.
“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
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