A recent case in the United States District Court for the Eastern District of Texas has significant implications regarding the obligations of hospitals to report certain actions to the National Practitioner Data Bank (“NPDB”). As a brief overview, the hospital in the case imposed a requirement that a surgeon’s next five cases be proctored. The proctoring requirement remained in place for longer than 30 days because the surgeon did not perform five cases within that time period. The hospital then reported to the NPDB that it had imposed on the doctor a proctoring requirement that lasted longer than 30 days. The surgeon challenged the NPDB report, and the court ordered that the NPDB report be vacated.
The court found that the hospital’s proctoring sanction did not specify the duration of the proctoring assignment and therefore was not reportable. The court held that “whether a proctoring sanction is reportable should be established by the terms of the sanction at the time it is delivered, not by whether, in fact, it takes more than 30 days to satisfy the requirement.” The court further stated:
Although the Hospital was aware of the reporting requirements (including the 30-day requirement) set forth by HCQIA and the NPDB Guidelines and had access to competent legal counsel, it nevertheless decided to adopt a proctoring requirement that is silent as to duration. It offered no explanation for such silence. The Hospital could have easily drafted a sanction against Dr. Walker that would have both addressed the 30-day requirement and specified the number of proctored cases Dr. Walker must complete. For example, the sanction could have required Dr. Walker to receive proctoring for 5 bowel surgery cases which procedures ‘shall not be completed within less than 30 days.’ The language employed by the Hospital could have easily been drafted to trigger or not trigger the reporting requirement.
This opinion is a substantial departure from how the industry has commonly interpreted the reporting requirement. Generally, it has been felt that if a restriction on privileges, such as a proctoring requirement, lasted longer than 30 days, the action became reportable once it had been in effect for 30 days, regardless of whether there was a specific statement of how long the requirement would be in effect when it was imposed. Relying on this new opinion, a hospital could now impose the following corrective actions without a specific duration and they would not be reportable to the NPDB.
- A proctoring requirement for a certain number of cases
- A mandatory pre-procedure concurring consult requirement for a certain number of cases
- A CME requirement that must be completed before performing a procedure
What is unclear as this stage is whether a summary suspension imposed without a specified duration for more than 30 days is reportable if it lasted more than 30 days. For example, if a physician is summarily suspended pending the completion of an investigation of three cases with adverse outcomes, this opinion would seem to suggest that this suspension would not be reportable even if it lasted longer than 30 days. However, the NPDB guidebook states that a summary suspension must be reported if it is “in effect or imposed for more than 30 days.” This language is different from the proctoring language in the NPDB guidebook that was cited by the judge in the case, which states that a report is required “if, as a result of a professional review action related to professional competence or conduct, a proctor is assigned to a physician or dentist for a period of longer than 30 days.”
We will be continuing to monitor the implications of this case, including reaching out to the NPDB to determine whether they are going to provide any further guidance on these issues. Therefore, it is possible we will see further developments regarding what is reportable. However, in an effort to limit the possibility of a lawsuit as a result of a NPDB report, we would recommend consulting your legal counsel about the following.
- Continue to report summary suspensions that last longer than 30 days, regardless of whether there is a stated time period when the suspension is imposed.
- Do not report other restrictions on privileges that are imposed based on the occurrence of events rather than specific time duration, regardless of whether the restriction ultimately lasts longer than 30 days.
This should provide a little more flexibility in imposing corrective actions. However, it is important to carefully construct any proposed corrective action with a clear understanding of whether the action will be reportable.