Consider National Practitioner Data Bank Reporting Prior to Settling Licensing Complaints and Medical Staff Peer Review Actions
I recently settled licensing complaint with the State of Michigan during my compliance conference. In my view the complaint lacked merit but I did not want to pay to go through an administrative hearing. To buy my peace and move on I agreed to a reprimand and a $500 fine. After I signed off someone mentioned that I may be reported to the National Practitioner Data Bank. This never came up at the compliance conference. My lawyer never mentioned this in our discussions and is not sure if this is the case or not. I would not have settled had I known a report would be made to the NPDB and assumed I was settling this quietly. Can you tell me if a NPDB report must be made?
A lawyer not experienced in health care law likely would not be aware of the NPDB, when the State of Michigan is required to report and the impact a report can have on a physician (when applying/reapplying for medical staff membership, a job or a medical director position, seeking to be engaged as an expert witness, etc.). The NPDB was created by the federal Health Care Quality Improvement Act, 42 U.S.C. 11101 et seq. (“HCIA”). It requires state licensure authorities and certain other entities (including organized medical staffs) to report “any adverse action” taken by them against a physician. These adverse actions include the revocation or suspension of a medical license, a reprimand, censure, probation or any other “negative actions” taken against a physician. Negative actions is defined broadly by HCIA to include anything placing a limitation on a physician’s scope of practice (e.g. agreeing to cease providing certain services, a limitation on prescribing authority, etc.).
HCIA does provide that certain actions are not reportable to the NPDB. These non-reportable actions include administrative fines, citations, corrective action plans and monitoring (as long as it is does not restrict the physician’s ability to practice).
It appears that you could have avoided the risk of a NPDB report by negotiating a sanction that did not include a reprimand. Unfortunately the possible sanctions available under Michigan’s Public Health Code include only denial of licensure, limitation, suspension, revocation, reprimand, fine, restitution and probation. It may have been possible to pay a higher fine in lieu of a reprimand or accept a corrective action plan that does not restrict your license as a limitation.
When possible it is worthwhile to avoid a NPDB report. Whenever you are being considered for a job the potential employer will query you and discover reports. A report may adversely affect your ability to get the job you are seeking. The same is true when you are applying for privileges at a hospital, clinic etc.
It is also worth noting that some state medical boards have policies on reporting to the NPDB that are not consistent with the regulatory requirements. For example, a medical board may have a policy of reporting anytime a fine is levied as a sanction even though fines are not reportable. When in a compliance conference or subsequent negotiations your lawyer should ask what the medical board’s policy is. To the extent a NPDB report is made contrary to the law you may appeal to have it removed. The appeal process is beyond the scope of this column but is another process that a lawyer experienced in health care matters can assist you with.
A final note on you goal of settling the case “quietly”. This is not entirely possible since Michigan’s Public Health Code (MCL 333.16241) requires all licensing sanctions to be published by the Department of Licensing and Regulatory Affairs (“LARA”) and further requires you to notify your employer and medical staff. Currently LARA satisfies this requirement by making available consent orders and stipulations on its website. You should carefully review these documents knowing that they will be seen by the public.
About Daniel Schulte
Daniel J. Schulte has more than 20 years experience representing small business owners in all aspects of transactional, operational and regulatory legal matters. A Certified Public Accountant as well as an attorney, Dan is the firm's managing partner and chair of the Health Care Practice Group.
He regularly advises and counsels concerning the formation of business entities, the preparation and review of business and corporate contracts, the purchase and sale of ownership interests in businesses and/or their assets, and the purchase, sale and leasing of real estate. A significant component of Dan’s practice involves representing healthcare professionals in state regulatory matters, including disciplinary and other licensing disputes with the State of Michigan, and federal regulatory matters including fraud and abuse issues. He also counsels on the anti-kickback and Stark laws, preparation of compliance programs, and responding to and negotiating settlements in connection with government enforcement actions.
Dan is well-known for his knowledge and experience in the area of association law, and is primarily responsible for the firm’s representation of the Michigan State Medical Society the Michigan Dental Association and the Michigan Osteopathic Association. His work related to association law includes the drafting and review of new legislation and the preparation of Amicus Curiae Briefs for filing in Michigan’s Supreme Court and Court of Appeals on a variety of topics affecting health care professionals practicing in Michigan.
Dan writes articles and presents frequently before legal, medical and business groups on a variety of topics, including HIPAA, the HITECH Act, the Stark Law, the fraud and abuse laws, health care compliance plans, business succession planning, asset protection, and estate and tax planning.
He is ranked among The Best Lawyers in America®, and has been named a “Michigan Super Lawyer” by Thomson Reuters.