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Data bank reporting requirements pose vexing issues.

Even though the National Practitioner Data Bank is now more than a year old, health care organizations continue to struggle with its reporting requirements. In some instances, it is possible to achieve the quality goals of the data bank without triggering a report and unnecessarily damaging a practitioner's reputation. This article details some of the cautions that need to be observed. "Health Law" is a regular feature of Physician Executive contributed by Epstein Becker & Green. Mark Lutes of the firm's Washington, D.C., offices serves as editor for the column.

The Health Care Quality Improvement Act (HCQIA) authorized the establishment of the National Practitioner Data Bank of function as a national source of information about physicians and other licensed health care practitioners. The Act was designed to encourage physicians and dentists to identify, for disciplinary purposes, peers who engage in unprofessional behavior and to restrict the ability of incompetent physicians and dentists to move from one state to another without disclosure of previous damaging or incompetent performance. The Act grants certain immunities to those who comply with its requirements.

On a daily basis, health care entities struggle most frequently with the implications of requirements that they report adverse actions against the clinical privileges of physicians or dentists. One category of Data Bank reporting on clinical privileges concerns actions taken as a result of peer review activity that adversely affects clinical privileges for a period exceeding 30 days. The second category includes the acceptance by the entity of surrender of clinical privileges while a physician or dentist is under investigation or in return for the entity's promise not to conduct such an investigation or proceeding. [1] Health care entities are therefore reexamining their credentialing and disciplinary procedures with an eye toward whether they will trigger either of these reporting requirements.

For instance, requests for new clinical privileges that are later withdrawn need not result in a Data Bank report as long as the physician is not given temporary privileges and the request for privileges is voluntarily withdrawn prior to final action by the health care entity. [2] Similarly, existing privileges may be voluntarily surrendered or staff membership not renewed without triggering reporting requirements, as long as the surrender is not associated with formal peer review activity. Thus, the reporting requirements encourage preinvestigational dispute/conflict resolution. Of course, professional review actions that adversely affect the clinical privileges of a physician or dentist for a period of less than 31 days do not fall under the Act's mandatory reporting requirements, so review bodies have a strong impetus to cap sanctions at 30 days to avoid litigation as to the merits of their decision. [1]

A health care entity may still undertake various adverse actions that significantly curtail or restrict a physician's clinical activity without triggering a Data Bank report. For instance, denial, revocation, or restriction of a physician's medical staff membership or clinical privileges is not reportable if it is based on such factors as a failure to comply with medical staff rules and regulations, as long as this failure does not affect a patient's health. [3] In addition, a denial based on failure to meet the threshold eligibility requirements established by a health care entity for a particular procedure is not considered a denial based on competence and therefore does not fall within the Act's reporting requirements. [4] Thus, entities with reporting obligations that want to avoid saddling a physician or dentist with a Data Bank "record" will carefully choose the rationale for their actions.

Counsel for physicians may also suggest preemptive risk management steps for their clients. For instance, a physician may be advised to relinquish or to not seek renewal of seldom used privileges in advance of any issue arising. In addition, the presence of reporting requirements is forcing physicians to carefully consider decisions to request additional clinical privileges, because, if the request is denied and the entity asserts that the denial is based on clinical or professional conduct, the denial will be the subject of a report, even if the decision is not in reality based on such factors. [5]

There are several ways in which health care entities and physicians can work cooperatively to accomplish their quality goals without triggering the reporting requirements of the Act, thereby causing practitioners to suffer the nonremediable hardship of a Data Bank report. The regulations define "professional review action" but they do not specify when a particular action is a reportable event. Some commentators have suggested that health care entities and medical staffs can avoid undesired and unnecessary reporting to the Data Bank by distinguishing between those peer review matters and actions that are "routine," and therefore not reportable, and those that constitute "formal peer review."

The government's guidebook and these commentators also suggest a number of informal and administrative actions that may not be deemed professional review actions subject to the reporting requirements. These include [6]:

* An informal warning by a department or division chief to a practitioner to alter his professional conduct or practice of medicine.

* An oral or written reprimand.

* A written warning.

* Proctoring for credentialing or investigation purposes, without proctor participation in, or proctor approval of, patient care.

Truly voluntary surrenders of clinical privileges are also not reportable events. However, surrenders while the physician is under investigation prompted by allegations of incompetence or improper professional conduct, as well as surrenders in return for not conducting such investigations, are reportable.

Thus, in the present environment, health care entities should carefully delineate those actions that constitute a formal investigation as well as those that are considered to reflection on "professional competence and conduct." [7] A simple bylaw amendment establishing a clear definition of "investigation" can help ease staff concerns that certain actions might lead to a Data Bank report. In addition, the health care entity can make clear that administrative actions, such as privilege restrictions that apply to a whole class of practitioners as well as a denial of privileges because the entity has no need for a practitioner with the applicant's skills, are not reportable.

Institutional education of staff members regarding those actions that will not be reported can serve to allay staff members' anxieties. Furthermore, it has been suggested that institutions establish procedures (e.g., the use of special forms and authoritative review) whereby a practitioner's voluntary resignation is clearly recorded as such. These procedures should eliminate questions that may later arise as to whether the resignation fell into one of the reportable categories. [8]

Overlap with state licensure and procedural requirements may also muddle the implementation of the Act's reporting requirements unless entities take clear steps to avoid the confusion. Because all of the Data Bank reports regarding professional review actions must be submitted to the Data Bank through the applicable state medical board, health care entities must be careful not to use the Data Bank forms when reporting under state law but not under the Act. Use of the Data Bank form is the signalto the state that the entity has determined that the action is reportable to the Data Bank. [9] In addition, because the Data Bank reports are submitted through the state-level intermediary, state officials are likely to review a such repots to see if a state investigation is warranted, [9] even though the reports were not submitted pursuant to state requirements.

Coping with the Act's requirements is certainly no easy task. Yet with careful thought and cooperation, health care entities can work with their staffs to foster effective peer review in compliance with the Act while promoting and preserving staff members' hard-earned reputations.

Nicole Tapay is an attorney in the Washington, D.C., offices of Epstein Becker & Green.

References

[1] 42 U.S.C.A. ** 11133 (West 1990).

[2] Butler, D., and Gliano, R. "Adapting to the National Practitioner Data Bank: Perspectives for Physicians." Medical Staff Counselor 5(4):1,5, Fall 1991.

[3] Ibid., page 5.

[4] Hackney, V. "The National Practitioner Data Bank: A Step toward More Effective Peer Review." Journal of Health and Hospital Law 24(7):201,204, July 1991.

[5] Butler, D., and Gagliano, R. Op. it., page 7.

[6] Nash, S., and others. "The National Practitioner Data Bank: Legal Issues Practical Guidance on Compliance." In 1991 Health Law Handbook. New York, N.Y.: Clark Boardman Co., 1991, pp. 49,58.

[7] Ibid., page 59.

[8] Ibid., page 60.

[9] Hackney, V. Op. cti., page 205.
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Title Annotation:National Practitioner Data Bank
Author:Tapay, Nicole
Publication:Physician Executive
Date:Jan 1, 1992
Words:1398
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