Are you applying for employment or affiliation with a health care entity? Do you have an application pending before a state licensing board? Do you have clinical privileges at a hospital? If the answer is yes to any of these questions, then you should be aware of the importance the National Practitioner Data Bank maintained by the Department of Health and Human Services (HHS) can have on you and your career.
What is the National Practitioner Data Bank?
The data bank was created as part of the Health Care Quality Improvement Act of 1986 (HCQIA). The stated purpose of the data bank is to improve the quality of healthcare by identifying which identification and discipline of those healthcare professionals may have engaged in unprofessional conduct. The data bank acts as a clearinghouse for information relating to the professional competence of physicians, dentists, and other healthcare professionals. The information reported to the data bank is used to review the credentials of practitioners, often during pre-employment background screening. If a doctor’s name is listed in the data bank, it could affect her ability to obtain privileges with a hospital or obtain a state medical license. It is important to understand how the data bank operates and the physician’s rights with respect to the information reported, how information is reported, who is allowed access, and what you can do to ensure the accuracy of the information in the data bank.
Reporting information to the data bank
Entities that must report health professionals to the data bank include state license boards, hospitals, HMOs, and professional organizations. They are required to report adverse actions, which can fall into the following categories: (1) medical malpractice payments; (2) licensure actions; (3) adverse actions by a healthcare entity, including the reduction, restriction, suspension, revocation, or denial of clinical privileges; (4) membership actions; and (5) exclusions from participation in Medicare and Medicaid. Being reported in the data bank may limit a physician’s ability to move from one state to another, particularly, if the physician is not aware that the reportable incident is in the data bank and accessible to multiple parties. It’s important to note that information reported to the data bank is confidential and people who receive information are subject to strict requirements and the civil penalties if they violate the requirements.
In 2006, the most recent period for which information is publicly available, 15,843 of the 22,887 data bank reports, or about 70 percent, were for medical malpractice payments. Diagnosis-related cases were most frequent, followed by surgery and treatment-related censure boards reported approximately 20 percent of all data bank incidents in 2006, and providers not eligible to bill or receive Medicare and Medicaid exclusions represented approximately 7 percent. Clinical privilege actions typically reported to hospitals represented approximately 3 percent of all 2006 reports.
Critics argue the data bank is incomplete because of the lack of reporting of information. A May 2009 study by Public Citizen, (a national, nonprofit consumer advocacy organization that represents consumer interest in Congress, the executive branch and the courts) of unpublished reporting rates from 1990 to 2007 revealed that nearly 49 percent of hospitals have never submitted a clinical privilege sanction report to the data bank. The statute requires reporting of certain actions, but there is no way to verify independently why almost half of the nation’s hospitals have never submitted a clinical privilege sanction report to the data bank.
Disclosing information to the National Practitioner Data Bank
Data bank information is available to hospitals, healthcare entities with formal peer review, state licensing authorities, healthcare practitioners and, in limited circumstances, plaintiffs’ attorneys. Hospitals are required to request information from the data bank when a physician applies for a staff position or clinical privileges. A hospital must also conduct a similar check every two years for each practitioner on its staff. Hospitals must also request information when a practitioner applies for temporary privileges or to expand existing privileges.
State licensing boards, including boards of medical examiners, may request data bank information at any time, and professional societies may request data bank information when screening applicants for membership or affiliation. In limited circumstances, a plaintiff’s attorney may request information in connection with a medical malpractice claim when evidence is submitted to HHS that reveals that a hospital failed to make a required query to the data bank. Medical malpractice insurers are precluded from requesting data bank information. In 2006, a total of 3,687,269 queries were made to the data bank. Hospitals made approximately 35 percent of these queries. Of those who voluntarily query the data bank, morganizations, including health maintenance organizations and preferred provider organizations, represented almost half of all queries in 2006. Other healthcare entities made approximately 18 percent of queries. Although state licensing boards made only about 2 percent of all queries in 2006, the number of queries reached more than 5,000, an increase of 42 percent from 2005.
Disputing data bank information
When a report is received and processed by the data bank, a Notification of a Report in the Data Bank(s) is mailed to the healthcare provider. A physician may make a self-query to the data bank at any time by submitting a request through www.NPDB-HIPDB.com and paying a small fee. Prior to making a job change, a physician should consider making a querying to ensure information is correct.
If any information in the report is inaccurate, a physician can request that the reporting entity file a correction. The data bank is prohibited by law from modifying any submitted information, even if the physician who is the subject of the information can prove its inaccuracy. If a reporting entity refuses to change the report it submitted to the data bank, the affected physician may initiate a dispute to the data bank and or add a statement to the data bank report, which any subsequent requestor would receive. The dispute process allows a physician to protest the accuracy of the report or whether the report was submitted in compliance with the reporting requirements. A physician is prohibited from disputing the merits of a malpractice claim or adverse action.
A physician who wants to initiate the dispute process must file a Subject Statement and Dispute Initiation form through the data bank. The outcome of a dispute can be: (1) correction of the disputed information; (2) voiding of the report; or (3) a decision to let the report stand.
If a physician is unsuccessful in resolving a dispute with a reporting entity and the reporting entity declines to change a report, that physician may request that HHS review the disputed report through a process known as a secretarial review. Similar to the data bank dispute process, HHS will not review the merits of the malpractice claim or adverse action that is the subject of a data bank report. HHS’ focus is solely on the factual information and whether the information was required to be reported. A request for secretarial review will not be considered if the physician has not attempted first to resolve the dispute with the reporting entity as described above.
In 2006, approximately one in six secretarial reviews resulted in an outcome beneficial to the practitioner, including a void of or a change in the data bank report.
A physician may add a statement to a data bank report at any time. If a physician submits a statement, the data bank will notify all parties who received the report and it will be included in all future reports. If the reporting entity changes its report in response to the statement added by the physician, the physician’s statement will then be removed.
Liability protection for reporting entities
Because of the effect a data bank report can have on a physician’s career and to encourage professional review activity, the HCQIA provides immunity from damages in civil suits for individuals and healthcare entities filing the data bank report. In order for immunity to apply, there are criteria that must be met. Essentially, the individual or organization must have done a professional review with the reasonable belief that the action was for the benefit of quality health care. There must have been a reasonable effort to obtain the facts of the matter; adequate notice and a hearing must have been afforded to the practitioner; and after all of that there must have been a reasonable belief on the part of the reporting person/organization that the action was warranted based on the facts known.
For physicians who participate in professional peer review activities, immunity will generally apply if a participating physician has a reasonable belief that the review process is advancing quality health care at the hospital or healthcare entity or if the information provided to the review body is false and the person providing the information knew it was false.
The data bank is not often at the forefront of a physician’s consideration when thinking about a job switch or applying for new or expanded hospital privileges. An adverse action report in the data bank could have a detrimental impact on a physician’s ability to obtain employment or clinical privileges with a healthcare entity and could affect the physician’s ability to obtain licensure in a particular state. Physicians would be well served to query the data bank to make certain the information there is accurate. Of course, prompt action should be taken to correct any inaccurate statements. If a physician is a defendant in a professional liability action, he or she should consult with counsel when considering settlement options because the insurer is required to file the settlement with the data bank. A physician who is active in the peer review of other physicians should ensure that the process complies with the requirements of the HCQIA and the review procedures of the healthcare entity to preserve the physician’s immunity from damages in civil suits.
The data bank is an important tool for licensure entities, potential employers, and payers, but it’s also vital for a physician to understand how the data bank operates.
Bruce D. Armon and Justin Ettelson specialize in corporate healthcare law at Saul Ewing LLP’s Philadelphia office. Reach them at firstname.lastname@example.org, email@example.com, or call 1-800-355-7777.