November 14, 2016
National Practitioner Databank (NPDB) Reporting Guidelines are not always as cut and dry as practitioners would like. Adding to the confusion is the fact that not all practitioners realize the NPDB Guidebook was revised in April 2015. This was the first update since the release of the original Guidelines in 2001. This client advisory highlights the basics regarding the NPDB requirements, including a summary of when adverse actions or malpractice payments must typically be reported, some exceptions, and updates as to last year’s changes.
WHAT IS NPDB REPORTING?
NPDB reporting is governed by the Health Care Quality Improvement Act (HCQIA), the Medicare / Medicaid Patient Act, and HIPAA. Most practitioners understand that under these laws, “eligible entities” have to report certain payments and adverse actions to the NPDB. The definition of “eligible entities” is very broad and varies pursuant to each of the three major statutes governing NPDB operations. It includes, for instance: hospitals, health care entities, professional medical societies and boards of medicine, health plans, insurance carriers, peer review organizations, and anyone making a medical malpractice payment.
WHAT IS AT STAKE, AND WHO MUST REPORT?
The failure of eligible entities to comply with NPDB requirements brings potential administrative fines and monetary penalties, which can be costly. These fines include, for instance, $11,000 per violation for violating confidentiality provisions and $11,000 per violation for failure to report a reportable action or payment. On the other hand, reporting individuals and entities enjoy immunity from civil liability, unless they report with some actual knowledge that a report they are making is false.
Some mandatory NPDB reporting guidelines apply to practitioners other than physicians. In general, the Guidelines require reporting of payments (that otherwise meet criteria) made on behalf of licensed practitioners including dentists, physicians, EMTs, optometrists, nurses, pharmacists, counselors, chiropractors, dieticians, mid-level providers, podiatrists, psychologists, rehabilitation specialists, social workers, speech therapists, technicians, and other health care practitioners. Licensed health care providers of any discipline or specialty should check the Guidelines for reporting requirements in the event of a malpractice payment. Eligible entities are required to report adverse clinical privileges actions taken against physicians and dentists and may report adverse clinical privileges actions taken against other licensed practitioners. It is also important to remember that the NPDB Reporting Guidelines do not exempt a practitioner from self-reporting payments to the Virginia Board of Medicine.
WHAT ADVERSE ACTIONS MUST BE REPORTED?
The NPDB Reporting Guidelines define “adverse action” as (1) an action taken against a practitioner’s clinical privileges or medical staff membership in a health care organization, (2) a licensure disciplinary action, (3) a Medicare/Medicaid Exclusion action, or (4) any other adjudicated action. This broad definition encompasses everything from clinical privileges actions taken by a hospital or health system, negative peer review organization actions or findings, and federal and state health care-related criminal convictions. Investigations into a practitioner’s competency or conduct alone, however, generally are not reportable.
The NPDB Guidelines treat each type of adverse action somewhat differently, and exceptions and caveats can apply. For this reason, every adverse action must be analyzed in the context of the Guidelines on an individual and fact-specific basis. Application of the NPDB Reporting Guidelines to adverse clinical actions, peer review findings, and criminal convictions are discussed briefly in this section. The Guidelines cover many other adverse actions and should be consulted in the event of any professional or health-care related action against a health care practitioner.
ADVERSE CLINICAL ACTIONS
Generally, hospitals and other health care entities must report adverse clinical privileges actions that negatively affect the privileges of a physician or dentist and their ability to practice independently for more than 30 days. A physician or dentist’s surrender or restriction of clinical privileges while under investigation, or in exchange for foregoing such an investigation, are also reportable. Privileges actions involving a physician or dentist’s professional competence or conduct usually meet reporting criteria, but not all privileges actions are reportable. For example, adverse actions arising out of a practitioner’s advertising practices, fee structure, salary, or contractual arrangement are excluded from reporting requirements.
PEER REVIEW FINDINGS
Peer review organizations must also report certain negative actions or findings. The regulations underlying the Guidelines define “negative actions or findings” as any recommendation by a peer review organization, based on formal proceedings of the organization, to sanction a licensed practitioner. Not every health care organization involving or using peer review to improve patient safety or health outcomes qualifies as a peer review organization under the Guidelines. For example, where a hospital hires an outside consulting organization to conduct a peer review of a practitioner, and the consulting organization makes recommendations without conducting formal proceedings for the physician(s) reviewed, the recommendations are not reportable as negative actions or findings. On the other hand, where a peer review organization contracts with a hospital and conducts formal proceedings to recommend sanctions against a physician, those sanctions would be reportable.
Criminal proceedings and resolutions other than straightforward convictions by a judge or jury can invoke NPDB reporting requirements. NPDB reporting requirements apply to judgments, convictions, “findings of guilt,” guilty and nolo contendere pleas, and participation in first offender or deferred adjudication programs. Reporting requirements involving criminal matters extend not just to health care practitioners but to providers and suppliers of health care items or services. Reportable disposition of a criminal matter must be reported regardless of whether the matter has been or will be appealed. Only health-care related criminal convictions must be reported, though. For example, a practitioner convicted of shoplifting or homeowner’s insurance fraud is likely to experience employment and licensure ramifications far into the future (which could eventually implicate NPDB reporting requirements), but the conviction is not immediately reportable to the NPDB. On the other hand, a physician or hospital who pleads nolo contendere to an illegal referral scheme or Medicare overbilling will be reported to the NPDB.
WHAT PAYMENTS MUST BE REPORTED?
The criteria for reporting or not reporting malpractice payments are as follows. First, the practitioner has to have been “identified” in a writing requesting payment for alleged malpractice. This writing can include demand letters, legal Complaints, or any other writing. Purely verbal demands do not have to be reported.
Second, if the writing requesting payment criteria is met, the practitioner also has to have been “identified” in either the release or the final order or final disposition of the case. If both of these requirements are met, the practitioner must be reported. It is notable that the term “identified” in these criteria does not just mean by name. If a practitioner is described (i.e. the physician who provided the cardiac clearance” or “Dr. Smith’s Nurse Practitioner”), this is sufficient to meet the criteria. Reports must be made within thirty days from payment.
EXCEPTIONS TO MALPRACTICE PAYMENT REPORTING REQUIREMENTS
The Virginia Board of Medicine has a minimum reporting threshold of $10,000, leading some practitioners to mistakenly believe that minimum is applicable for the NPDB. It is not. There is no minimum reportable payment in the NPDB Guidelines. Any payment meeting criteria, no matter how small, must be reported.
Sometimes, there is a question as to whether the practitioner has to be reported if he or she has been dismissed prior to the release being signed or final order being entered. If the dismissal of the practitioner was a condition of the settlement – a report is still required. If, on the other hand, the dismissal was completely independent of the settlement – the report does not have to be made.
There are some other exceptions to the reporting requirements. For example, a payment directly from a practitioner’s own personal funds is not reportable. On the other hand, if it is a solo practitioner and those funds are paid directly from the solo practitioner’s corporate funds, then a report must be made. Another exception is that if medical bills are simply waived, no report is required. The report is still required if the medical bills were reimbursed or refunded, however.
At times, a high / low may be entered into at trial. Obviously, if the fact-finder finds no liability and the low is paid, a report is not necessary. Where the verdict is in favor of the plaintiff and the high is paid, a report is, of course, required.
Another exception to reporting is where only loss adjustment expenses (LAE) are paid. LAE are things such as attorney’s fees, billable hours, copying costs, costs of transcripts, and expert costs. Payment of documented LAE is not reportable. However, if LAE are paid in conjunction with any other payment – this does have to be reported. In that circumstance, the entire amount would have to be reported, including the LAE and the additional payment. Within the narrative section of the report, the reporter would explain that part of the payment was for LAE.
The NPDB Reporting Guidelines are expansive and contain detailed requirements with the potential to affect any licensed health care provider following an adverse action or malpractice payment. The Guidelines contain extensive exceptions, however, and whether any adverse action or payment must be reported should be considered on a case by case basis. The complete updated NPDB Reporting Guidelines from 2015 can be found here. For more information, please contact Jodi Simopoulos (firstname.lastname@example.org) and Meredith Brebner (email@example.com).
The information contained in this advisory is for general educational purposes only. It is presented with the understanding that neither the author nor Hancock, Daniel, Johnson & Nagle, PC, is offering any legal or other professional services. Since the law in many areas is complex and can change rapidly, this information may not apply to a given factual situation and can become outdated. Individuals desiring legal advice should consult legal counsel for up-to-date and fact-specific advice. Under no circumstances will the author or Hancock, Daniel, Johnson & Nagle, PC be liable for any direct, indirect, or consequential damages resulting from the use of this material.