September 28, 2017

Consider National Practitioner Data Bank Reporting Prior to Settling Licensing Complaints and Medical Staff Peer Review Actions

ANSWER:

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.

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Health Care Law