New National Practitioner Data Bank Guidebook Adopts Stricter Reporting Requirements

By: Jesse Adam Markos, Esq.
Wachler & Associates, P.C

On April 6, 2015, the Department of Health and Human Services (HHS) published a revised National Practitioner Data Bank Guidebook (“new NPDB Guidebook”). This is the first updated release of the NPDB Guidebook since September 2001. In addition to incorporating all of the legislative and regulatory changes since that last edition, the new NPDB Guidebook also adopts stricter reporting requirements with regard to hospital-imposed proctorships. Increased reporting in this area will likely have a chilling effect on the ability of hospitals to evaluate a physician’s competence when issues are detected without tarnishing that physician’s reputation.

By way of background, the NPDB is an alert system that collects and discloses certain adverse information about physicians and other health care providers. An adverse report to the NPDB can significantly impact a health care provider’s reputation and career. State licensing authorities, hospitals and other health care entities, and professional societies search the NPDB when investigating qualifications. A response that contains an adverse report can result in a denial of credentialing, loss or limitation of hospital privileges, loss or limitation of licensure, exclusion from participation in health plans, and increases in premiums or exclusion from professional liability insurance.

The NPDB Guidebook is published to help educate reporting entities and others about the reporting requirements established by the laws governing the NPDB. It serves as a policy manual providing guidance to users on topics such as eligibility, querying and reporting requirements, and the dispute process.

Hospital-imposed proctorship agreements are often used to help evaluate clinical competence. Previously, hospitals could structure a non-reportable proctorship by limiting the duration to 30 days or less or if the proctor was only required to be present during the procedure for the purpose of observing and assessing competence. In the latter case, while the proctor would be free to consult or offer insight during the procedure, all clinical decisions would still rest with the physician. Of course, if the proctor discovered that a physician was presenting an unacceptable risk to patient safety, the proctorship agreement included a mechanism for the proctor to immediately report his or her concerns and take other action as needed.

The new NPDB Guidebook requires increased reporting of proctorships that exceed 30 days. More specifically, if the physician cannot perform certain procedures without proctor approval or without the proctor being present, the proctorship agreement constitutes a restriction of clinical privileges and must be reported. As a result, the only non-reportable proctorships still available are those that do not extend beyond 30 days or are limited to a retrospective review of cases.

An adverse NPDB report can do significant damage to a physician’s reputation and career. The new NPDB Guidebook leaves hospitals with one less option when trying to evaluate competence and improve quality by non-punitive means. Hospitals and physicians alike must adapt to the stricter reporting requirements found in the new NPDB Guidebook and understand when a report is required and when one can be appropriately avoided. For additional information or assistance, contact a Wachler & Associates attorney at (248) 544-0888.