When To Report To The NPDB – Federal Case Provides Some Guidance

The Health Care Quality Improvement Act requires hospitals to report to the National Practitioner Data Bank whenever a physician surrenders clinical privileges while under “investigation” related to improper professional conduct or incompetence. However, the statute is silent on the interpretation of when an investigation commences. This ambiguity has left hospitals in the dark concerning when an investigation commences and when a report to the NPDB must be made.

A federal Court of Appeals case out of the First Circuit has provided some clarification concerning when an investigation commences and is concluded. Although this case is only binding within the First Circuit, it provides useful guidance and would likely be followed in other Federal Circuits given the dearth of other authority on this issue. As such, hospitals may want to take the time to incorporate the definition of “investigation” into their Bylaws and Peer Review process in order to properly mandate internal compliance with the NPDB reporting requirement.

In the case at issue, Doe v. Leavitt, 552 F.3d 75 (1st Cir. Jan 14, 2009), the physician had his privileges temporarily suspended after a complaint was filed involving improper conduct. Following more complete investigation, the committee offered the physician a conditional resumption of privileges. This offer was rejected by the physician who voluntarily resigned his privileges. The hospital subsequently reported the incident to the NPDB. The physician filed for an administrative hearing where he made the arguement that the report to the NPDB was not appropriate because the hospital’s investigation had terminated before the physician voluntarily resigned his privileges.

Health and Human Services rejected the physician’s argument and found that an investigation is ended only when there is a final action or formal closing of the investigation by the reveiwing body. In this case, the investigation was not formally closed and there was no final decision at the time that the physician voluntarily resigned. Therefore, HHS determined that the hospital’s report to the NPDB was appropriate. The physician appealed. The Court of Appeals agreed with the HHS decision citing HHS’s consistent interpretation of when an investigation terminates, Congressional intent to improve the quality of health care through passage of the HCQIA.

The Court also noted that although hospital Bylaws may provide guidance on when an investigation is closed, that a hospital cannot be determinative if they are inconsistent with the HHS interpretation of when an investigation commences or ends.

Hospital’s should review their Bylaws and in particular provisions governing the commencement and termination of an investigation to be certain that they are consistent with HHS interpretation and the Court of Appeals decision in this case. Failure to include proper definitions in the Hospital Bylaws could lead to the Hospital inadvertently failing to accurately comply with the reporting requirements in this type of situation.