The National Practitioner Data Bank: What You Need to Know...
Neda M. Ryan, Esq.
Corporate Compliance Attorney, ABC
The National Practitioner Data Bank (NPDB) was established under Title IV of the Health Care Quality Improvement Act of 1986 and has been operational since September of 1990. The NPDB impacts both anesthesiologists and certified registered nurse anesthetists (CRNAs) as certain entities are required to report adverse actions taken against their licenses, clinical privileges and professional society memberships. The issue of the NPDB most commonly arises under scenarios involving medical malpractice claims as, often, any and all payments made—regardless of whether those payments are made to dispose of a claim or to satisfy a judgment—must be reported to the NPDB.
The Data Bank
According to the NPDB Guidebook,
The intent of [the NPDB] is to improve the quality of health care by encouraging State licensing boards, hospitals and other health care entities, and professional societies to identify and discipline those who engage in unprofessional behavior; and to restrict the ability of incompetent physicians, dentists, and other health care practitioners to move from State to State without disclosure of discovery of previous medical malpractice payment and adverse action history.
The NPDB allows for reporting and querying of physicians, dentists and other healthcare practitioners (e.g., nurses). State licensing boards, hospitals, healthcare entities and professional societies must submit reports to the NPDB of certain adverse actions taken against physicians and nurses under their jurisdiction. Likewise, malpractice insurers must report payments made to plaintiffs on behalf of all licensed practitioners. The NPDB is a tool for hiring entities in their due diligence process. The NPDB repeatedly states that the NPDB is an alert or flagging system.
Reporting to the NPDB
Actions reportable to the NPDB include the following:
- Medical Malpractice Payments— Entities, including insurance companies, making settlement payments or other payments of a claim or judgment (in whole or in part), under an insurance policy, self-insurance, or otherwise, for the benefit of a physician or nurse for medical malpractice.
- Licensure Actions by Boards of Medical Examiners—Each Board of Medical Examiners must report any action based on reasons relating to professional competence or professional conduct (e.g., denial or withdrawal of an application for license renewal).
- State and Federal Licensure Actions— Each state and each federal licensing and certification agency must report adverse actions taken as a result of a formal proceeding (e.g., revocation or suspension of license or certification agreement or contract for participation in Medicare and Medicaid, reprimands, censures or probation); dismissals or closure of the formal proceeding by the licensee resulting in surrendering the licenses or certification agreement or contract for participation in Medicare and Medicaid, or leaving the state or jurisdiction; any other loss of license or loss of the certification agreement or contract for participation in Medicare and Medicaid, or the right to apply for or renew, a license or certification agreement or contract of the healthcare provider; and/or any negative action or finding by a state authority or federal agency, organization, or entity regarding the physician or nurse.
- Peer Review and Private Accreditation Actions—Peer review organizations and private accreditation entities must report negative actions or findings taken against a physician or nurse.
- Actions Taken Against Clinical Privileges—A healthcare entity must report (i) professional review actions adversely affecting a physician or nurse’s clinical privileges that span longer than thirty (30) days; (ii) when it accepts the surrender of clinical privileges or any restriction of such privileges by a physician or nurse; or (iii) when a professional review action is taken concerning a physician or nurse.
- Federal or State Criminal Convictions Related to Healthcare—Federal and state prosecutors must report criminal convictions against physicians or nurses related to the delivery of a healthcare item or service (regardless of whether an appeal is pending).
- Civil Judgments Related to Healthcare— Federal and state attorneys and health plans must report civil judgments against healthcare practitioners related to the delivery of a healthcare item or service (regardless of whether an appeal is pending).
- Exclusions from State or Federal Healthcare Programs—Federal government agencies (e.g., HHS or OIG) and state law and fraud enforcement agencies must report those who are excluded from participating in Federal or State healthcare programs.
- Other Reportable Actions—State and Federal agencies must report other adjudicated actions related to the delivery, payment, or provision of a healthcare item or service against physicians or nurses (regardless of whether an appeal is pending).
Shortly after the NPDB was in place, the Office of the Inspector General (OIG) conducted a study and published a report, National Practitioner Data Bank: Malpractice Reporting Requirements. One of the purposes of the report was to ascertain whether a reporting floor should be imposed upon reports of malpractice payments. In conducting a survey of malpractice insurers, the OIG determined that while imposing a reporting floor would encourage settlement of smaller claims and would significantly reduce the number of reports forwarded to the NPDB, potentially meaningful reports would not be made when cases are settled for amounts below the floor, sometimes deliberately to avoid reporting. Accordingly, the OIG determined that the benefits to reporting do not outweigh the potential drawbacks of diminished reporting.
Querying the NPDB
Hospitals, state licensing boards, other health care facilities, professional societies and plaintiffs’ attorneys all have authority to query the NPDB under certain circumstances. Additionally, individuals may query their own records at any time. Hospitals are the only entities that must query the NPDB. Hospitals must query with respect to those who apply for a position on the medical staff or to obtain clinical privileges at the hospital. Queries must also be made every two years thereafter. Other healthcare entities may query the NPDB when they seek to have an employment or other affiliation relationship with an individual. Moreover, state licensing boards may query the NPDB at any time. Plaintiffs’ attorneys may only query the NPDB in certain circumstances, but medical malpractice payers may not query the NPDB at any time. NPDB records are not accessible to the general public and are only released to authorized persons and entities.
Disputing NPDB Information
When an adverse action is submitted to the NPDB, a copy of the report is sent to the subject of the report. It can be extremely difficult for a physician or a nurse to change a report made to the NPDB. Although subjects may not submit changes to the report directly, subjects may request the reporting entity to file corrections if they believe there to be inaccuracies. The NPDB itself may not modify information within the report.
At times, the reporting entity will amend the report and notify all the entities to whom reports have been sent that the original report has been revised. However, in other instances, the reporting agency will refuse to amend the original report. In such instances, the subject of the report may escalate the issue through a formal dispute process and/or add a statement to the report.
When an entity refuses to amend the report, the physician may escalate the issue to the Secretary of Health and Human Services (Secretary) who will only review the report for factual accuracy and not the appropriateness of the action or the merits of the claim. Importantly, according to the NPDB Guidebook, “[t]he dispute process is not an avenue to protest a payment or to appeal the underlying reasons of an adverse action affecting the subject’s license, clinical privileges, or professional society membership. Neither the merits of a medical malpractice claim nor the appropriateness of, or basis for, an adverse action may be disputed.” Formal disputes may only be beneficial to the subject, therefore, if the facts reported are inaccurate. The subject of the report may, in addition to escalating the dispute to the Secretary, submit a statement that will be permanently attached to the report.
Hiring an Attorney
Anesthesiologists and CRNAs may find it worthwhile to obtain the assistance of an attorney when faced with reportable adverse actions. Some reports to the NPDB are required and can occur without proof of an anesthesiologist’s or CRNA’s wrongdoing. For example, if a medical malpractice claim is settled (with no admission of wrongdoing), a report may be made to the NPDB because money was paid in connection with a medical malpractice claim. Moreover, anesthesiologists and CRNAs may also find it prudent to hire attorneys to represent them in licensure or staff privilege issues to avoid reporting to the NPDB. If a report must be made to the NPDB in such instances, the physician or nurse may utilize the assistance of an attorney in agreeing to the language that is being submitted to the NPDB; such a strategy may assist in averting future issues associated with NPDB queries. Finally, if an NPDB report has been filed, an anesthesiologist or a CRNA may use the assistance of an attorney to draft the statement to be attached to the report.
Reports to the NPDB can have a significant impact on an anesthesiologist’s or CRNA’s prospective employment. Anesthesiologists and CRNAs should be aware of which types of adverse actions will be reported to the NPDB and should take care to mitigate any potential future impact by seeking the assistance of qualified counsel. Although some reports may not be avoided, the content of the report may be negotiated so as to be acceptable to all parties
Neda M. Ryan, Esq. is a Corporate Compliance Attorney for ABC. Ms. Ryan has experience in all areas of health care law, including health care transactional and corporate matters; health care litigation matters; providing counsel regarding compliance and reimbursement matters; and third party payer audit appeals. She can be reached at (517) 787-7432 or at Neda.Ryan@AnesthesiaLLC.com.