- Getting Out of the National Practitioner Data Bank, Part I
- December 8, 2009
- Law Firm: Holland & Hart LLP - Denver Office
Once a physician or other health care provider is reported to the National Practitioner Data Bank, he or she is normally there for life. It is extremely difficult to get out. Some physicians have remarked that it is like having a "record," which like in the criminal context can result in the denial of hospital privileges, denial of jobs and potentially the destruction of careers. All hospitals are required to access the data bank reports on physicians every two years during hospital privieges re-certifications. State disciplinary actions are required to be reported as well as malpractrice insurance payments (no matter the amount). Peer review discipline is also reportable, although their are some limited exceptions.
A hospital must report any physician or other practitioner whop resigns while under "investigation" in order to avoid disciplinary action. The term "investigation" is not defined in either the Health Care quality Improvement Act of 1986, the implementing statute or in any ensuring regulations.
In John Doe v. Michael Leavitt, No. 08-1431,(Ist Cir. January 14, 2009) the federal First Circuit Court of Appeals, affirmed a Maine federal District Court holding that the term "investigation" was to be broadly construed to include not only fact finding, but also ongoing activity of the health care entity through due process to final action or the formal close of the proceedings. In Doe, a physician who resigned his privileges rather than undergo regular proctoring and psychological evaluations was required to be reported to the data bank. The physician argued that the "investigation" definition was limited to the fact finding process. The court agreed with the district court and the Secretary of Health and Human Services that the purpose of the reporting requirement was essential to plug a loophole for physicians resigning in lieu of discipline and that to limit the definition of investigation would contradict the purpose of the statute. There is perhaps an irony here that the discipline recommended, as described by the court, may not have been sufficiently onerous under the reporting guidelines so as to require reporting to the data bank if it had been accepted. The next question will obviously be what happens if the physicians enters an agreement with the hospital to resign, but only after termination of proceedings. Probably the same result.