NPDB

February 10, 2022

Posted on by Courtney Patterson

QUESTION:
We have a physician who was brought in through a contract with a locum tenens company.  Within the first couple of weeks, he had several horrible outcomes in cases.  We started to review his cases through our peer review process and we are considering a precautionary suspension.  Our CMO just told us that the hospital has instructed the company that the physician can no longer be scheduled at our hospital.  This will result in the termination of his clinical privileges.  Should we suspend his privileges anyway, continue with our peer review process, and then report him to the National Practitioner Data Bank?  We are concerned that he is just going to go someplace else and hurt patients again.

OUR ANSWER FROM HORTYSPRINGER ATTORNEY SUSAN LAPENTA:
We understand the desire to follow your peer review process, especially when there are serious concerns about the clinical care provided by a physician.  The peer review process is, by design, thoughtful, deliberative, and educational with built-in collegial efforts, progressive steps, and, when needed, opportunities for improvement.  As successful as the peer review process can be, it is not well suited to address concerns about physicians who are brought into practice on a temporary basis.

That does not mean you should ignore those concerns.  However, your medical staff may not be in the best position to evaluate, address, and resolve the concerns identified in a physician who is practicing at your hospital on a temporary basis.  In fact, once the hospital has exercised its rights under the contract with the locum company and instructed the company not to schedule the physician again, there is not much left for the medical staff to do through its peer review process.  It difficult to review a physician’s care when the physician is no longer practicing at the hospital and there is no action left to take after the physician’s appointment and privileges have been terminated through the contract with the locum company.

In fact, this is an area where the National Practitioner Data Bank, through its Guidebook, has been very clear.  If a physician’s clinical privileges are terminated as a result of a contract, that termination is not an adverse professional review action and should not be reported to the Data Bank.

If you are concerned that the locum company is going to turn around and place the physician in another hospital, you may want to put the company on notice of your specific concerns.  The company should have a process for evaluating the care and competence of the physicians and other practitioners it is placing.  But be careful what you say to the locum company.  Your communication with the company may not be protected under your bylaws, or state or federal law.

To protect yourself, request the locum company to have the physician sign an authorization and release so that information about the physician’s practice can be shared.  Additionally, if you receive a request from another hospital who is seeking to privilege this physician, you can request an authorization and release before providing any information, including the standard “name, rank, and serial number.”  A request for an authorization should send a message that there are issues that require further review and evaluation.

November 11, 2021

Posted on by Courtney Patterson

QUESTION:
Last month, our hospital announced a policy requiring individuals who are physically present on the premises to be fully vaccinated with the COVID-19 vaccine.  We understand that this policy applies to advanced practice professionals and members of the Medical Staff, but we are not sure how to enforce it.  Any suggestions would be appreciated.

ANSWER:
The Medical Staff Bylaws and Credentials Policy (“Medical Staff Governance Documents”) probably require members “to abide by the medical staff documents and the policies of the Hospital.”  That’s a start, but you may want more.  Here are some ideas.

We recommend that the Medical Staff Governance Documents include a threshold criterion that requires individuals to “document compliance with immunization and health screening requirements (e.g., TB testing, mandatory vaccines, and infectious agent exposures).”  We also recommend that your documents expressly state: “Failure of an individual to continuously satisfy any of the threshold eligibility criteria will result in the administrative relinquishment of appointment and clinical privileges, unless a waiver is granted.”

If you don’t have that language now, the Medical Executive Committee may be able to add it to your Medical Staff Governance Documents, but you’ll have to check the notice requirements and the amendment process.

Another alternative is to rely on language in your Medical Staff Governance Documents that requires individuals to provide information when it is requested by a medical staff leader.  Specifically, we recommend the following language:  “Failure of an individual to provide information pertaining to an individual’s qualifications for appointment or clinical privileges in response to a written request from any medical staff leader or any other authorized committee will result in the administrative relinquishment of appointment and clinical privileges until the information is provided to the satisfaction of the requesting party.”  Since the hospital policy requires proof of vaccination, we are comfortable using this language to help enforce the hospital policy.

Remember, a relinquishment is administrative in nature and is not considered an adverse professional review action.  Therefore, the individual is not entitled to a hearing and the hospital is not required to report the individual to the National Practitioner Data Bank or the State Board.

February 4, 2021

Posted on by hortyspringer

QUESTION:        Our Medical Staff Bylaws contain a provision stating that Medical Staff members automatically relinquish their appointment and clinical privileges if they lose their license or fail to meet other threshold eligibility criteria.  Do we have to report such automatic relinquishments to the National Practitioner Data Bank (“NPDB”)?

 

ANSWER:          You do not.  By way of background, we generally recommend that Medical Staff Bylaws documents identify certain events that will lead to the automatic relinquishment of appointment and clinical privileges.  This includes, among other things, failure to meet any threshold eligibility criteria that are required for appointment and clinical privileges.  When a member’s appointment and privileges are automatically relinquished pursuant to such a provision, the action is considered to be “administrative” in nature.  That means there is no “professional review action” as defined by the Health Care Quality Improvement Act, so there is no need for a report to the NPDB.  The latest edition of the NPDB Guidebook includes the following question and answer that addresses this specific situation (See page E-47):

Question:  A hospital automatically revoked a physician’s clinical privileges when the physician lost her license.  Should this action be reported?

Answer:  No. Administrative actions that do not involve a professional review action are not reportable to the NPDB. The revocation of clinical privileges is automatic because the practitioner no longer holds a license.  Regardless of the reason for the State medical board’s licensure action, the hospital’s revocation of privileges was not the result of a professional review action.  Therefore, the hospital’s action should not be reported to the NPDB.

April 16, 2020

Posted on by hortyspringer

QUESTION:        We expect to have a surge of coronavirus patients in the next week or two, so we are currently credentialing and privileging practitioners to help with the patient volume.  Should we rely exclusively on disaster privileges for this, or should we consider temporary privileges instead?  What about emergency privileges?

 

ANSWER:          Emergency privileges are not an ideal tool for dealing with a pandemic.  Emergency privileges are intended for scenarios where a patient experiences a sudden emergency and a physician rushes to help.  For example, imagine a circumstance where a (seemingly healthy) patient is visiting your hospital and collapses suddenly.  Emergency privileges would authorize a physician to provide emergency care at the scene that goes beyond the scope of his or her clinical privileges.  That authorization would last only until the emergency was under control.

Consequently, the main question is whether you should grant temporary privileges (for an important patient care need) or disaster privileges.  If you have a week or two to prepare for a surge in patient volume, then it may be optimal to consider temporary privileges.  If you are part of a system (even if there is not a unified medical staff) you could pass a resolution allowing for the grant of temporary privileges for an important patient care need to any physician, or other practitioner, who has been fully credentialed by any hospital within the system.  The only verification that would be necessary would be confirmation from the medical staff office or credentialing verification office that the individual maintains appointment and clinical privileges within the system.  Additionally, as with any other grant of clinical privileges, you would have to query the NPDB.  This query should be made before the physician starts to work.

Disaster privileges can be used if you need to onboard someone very quickly.  Generally speaking, disaster privileges can be granted after you verify a volunteer’s identity and licensure.  Accreditation standards place certain timelines on the verification of licensure.  Note that the Joint Commission also requires an oversight process for volunteers who are licensed independent practitioners and who have been granted disaster privileges.  Specifically, based on the oversight, the hospital must determine within 72 hours if disaster privileges should continue.  A similar process must be followed for volunteers who are not licensed independent practitioners but who are “required by law and regulation to have a license, certification, or registration” (e.g., respiratory therapists).

This is a rapidly evolving topic, and it is important to consider your own unique needs and circumstances when evaluating these options.

March 12, 2020

Posted on by hortyspringer

QUESTION:        We had an applicant who “forgot” to disclose two hospitals where she practiced in the past when she completed her application form.  We found out about one of them through a National Practitioner Data Bank query and the other when we directed her to correct her application form.  She was very apologetic and said it was an accident because her office manager completed the form.  What do we do with this now that we feel like she wasn’t honest? It seems unlikely that she “forgot” an affiliation where they restricted her privileges.

ANSWER:          Misstatements and omissions on application forms can certainly be very serious and the concerns that your medical staff leaders have are justified. The act of completing a medical staff application form is a practitioner’s very first administrative contact with the hospital.  As an administrative function, we recommend having an administrative response when this type of discrepancy is discovered.  That response should not be an invitation to “correct” the application form, because through the use of such language, it implies to the practitioner that there are no concerns raised by their initial completion of the form or that those concerns are fully resolved by their “correcting” the erroneous information.

Rather, we recommend having medical staff bylaws/credentials policy language that clearly states that the hospital will stop processing an application if a misstatement or omission is discovered – and if it is not discovered until after appointment has been granted, that appointment will be automatically relinquished.  The applicant should be notified of the misstatement or omission and given an opportunity to respond, and then there should be an administrative-level review of that response to determine whether or not to move forward.  The same language should be on the application form release that the individual signs upon completing the application form.  Addressing this issue on an administrative level means avoiding words like “rejection” or “termination” of the application or “denying” the application – which is an action that is only ever taken following a comprehensive review of the application and all supporting materials in its entirety.

June 20, 2019

Posted on by hortyspringer

QUESTION:              I noted that one of the cases that was in this week’s HLE arose as a result of a hospital granting temporary privileges to an applicant for medical staff appointment.  While we do not routinely grant temporary privileges, they are useful from time to time.  How much risk is there in granting temporary privileges?

 

ANSWER:                 While temporary privileges should not be routinely granted, it is not unusual for a hospital’s medical staff bylaws to state that temporary privileges may be granted to applicants for initial appointment whose complete application is pending review by the Medical Executive Committee and the Board. In order to be “complete” there must be verification of licensure, training or experience, current competence, and an ability to perform the privileges requested. In addition, the bylaws should state that in order to be eligible for temporary privileges, an applicant must (i) have had no current or previously successful challenges to licensure or registration, (ii) have not been subject to involuntary termination of medical staff membership at another organization; and (iii) have not been subject to involuntary limitation, reduction, denial, or loss of clinical privileges.   The bylaws may include other criteria that must be met before temporary privileges are granted.

Additionally, the hospital must query and evaluate information from the National Practitioner Data Bank and check the Office of Inspector General’s List of Excluded Individuals/Entities before temporary (or any privileges) can be granted.  Finally, the grant of temporary privileges should be time limited consistent with the standards of the applicable accreditation organization.  According to The Joint Commission standard “Temporary privileges for applicants for new privileges are granted for no more than 120 days.” 

It is not clear, but it appears from the facts of the case described above, that the hospital’s hospitalist group had such a need for the nocturnist that it wanted to use temporary privileges to rush a candidate through the hospital’s credentialing process.  The temporary privileges were granted and rescinded in 2012, but the litigation did not end until 2019.  In this case, not only did granting temporary privileges fail to fill the nocturnist position, but also caused the hospital years of litigation.

The best way to avoid these kinds of situations and the endless litigation that sometimes ensues is only to grant temporary privileges to applicants after a thorough vetting, after confirmation that there are no red flags and only under the above-described circumstances.

March 14, 2019

Posted on by hortyspringer

QUESTION:        We are part of a five-hospital system.  Many of our physicians practice at multiple hospitals in our system.  We’ve had a couple of occasions lately where one hospital addressed a problem applicant or a problem physician, but the physician just moved to another hospital in our system.  We are separate hospitals and separate medical staffs.  We have an information sharing agreement and that helps, but we’re not sure it’s enough.  Can you help?

 

ANSWER:            You’re off to a good start with an information sharing agreement.  That should allow you to share confidential peer review information between and among your sister organizations.  There is also language you can add to your bylaws or credentials policy (bylaws documents) that can help.  For instance, we recommend threshold eligibility criteria that would render someone ineligible if he or she had staff appointment or privileges “denied, revoked, or terminated” for reasons related to clinical competence or professional conduct at any hospital or health care facility, or had resigned appointment during an investigation, or had an application for appointment not processed due to an omission or misrepresentation.  These threshold eligibility criteria apply not only at appointment and reappointment but during the term of appointment and your bylaws documents should make it clear that failure to satisfy these criteria during appointment will result in an automatic relinquishment.

It is also helpful to have language in your bylaws documents that makes it clear that certain actions, such as a performance improvement plan, automatic relinquishment, or professional review action, when taken at one hospital in the system will be automatically effective at all of the other hospitals in the system.  The bylaws language should allow for a waiver by the Board, upon the recommendation of the appropriate Medical Executive Committee, when it would not be necessary or appropriate for the action to be effective at any given hospital.  This language gives you some wiggle room and some discretion, but it also helps ensure that you are not caught up in redoing peer review efforts, including investigations and hearings, at multiple hospitals in the system.  Fortunately, there is helpful language in the National Practitioner Data Bank Guidebook which makes it clear that administrative actions taken by hospitals in a system based exclusively on the action taken at a sister hospital should not be reported to the NPDB.

February 7, 2019

Posted on by hortyspringer

*****

QUESTION:        When a health care provider obtains a self-query from the National Practitioner Data Bank (“NPDB”), does the self-query indicate how many times a hospital itself has queried that provider?

 

ANSWER:            The short answer is that, in limited circumstances, this information will be included in the self-query for the health care provider.  The NPDB discloses all reports about a health care practitioner to hospitals that submit queries about that practitioner and, as a result, those disclosures are indicated on the self-query.  That information is available to the practitioner and contained in the self-query as part of the disclosure history.  However, if there are no reports to be disclosed about a health care practitioner, the NPDB does not inform the individual of the hospital queries, as no disclosures were made.

Federal law provides that the NPDB collect information and maintain reports on medical malpractice payments, federal and state licensure and certification actions, adverse clinical privileges actions, adverse professional society membership actions, negative actions or findings by private accreditation organizations and peer review organizations, health care-related criminal convictions and civil judgments, exclusions from participation in a federal or state health care program (including Medicare and Medicaid exclusions), and other adjudicated actions or decisions.

The reports maintained by the NPDB are disclosed upon query to hospitals, which are mandated by federal law to submit such queries at the time the health care practitioner applies for a position on its medical staff or clinical privileges at the hospital and every two years for any health care practitioner on its medical staff or with clinical privileges at the hospital.  According to the NPDB, when the hospital submits a query, the NPDB releases only the information it is lawfully allowed to access.  A hospital can query through the NPDB using a one-time query, which allows for a one-time query response for a practitioner, or a continuous query, which allows the hospital to receive a query response and all new or updated report notifications during the year-long enrollment for each practitioner.

Also available through the NPDB is a self-query, which can be submitted by a health care practitioner about his or her own information kept by the NPDB.  The self-query searches to determine if the health care practitioner’s own information provided matches information in reports previously submitted to the NPDB.  The response may show that no matching information was found in the NPDB, or it may show that information about medical malpractice payments, adverse licensure or privileges actions, or judgments and convictions was found, in which case the full report(s) will be provided to that health care practitioner as part of the self-query.

In the instance a health care provider submits a self-query and no matching information or reports are found, the health care provider will not see how many times any hospital has queried that provider.  However, when there are reports returned on a health care provider, the self-query will not necessarily show how many times that provider was queried, but will indicate how and who the reports were disclosed to when that provider was queried.

November 1, 2018

Posted on by hortyspringer

QUESTION:        We are considering having a Credentials Verification Organization (“CVO”) perform primary source verification and other required verifications for our credentialing process.  Do we need to have some sort of agreement in place?  If so, what should that agreement include?

ANSWER:            Regardless of whether you are using an internal CVO (i.e., one that is a part of your organization) or an external, independent CVO (i.e., one that has no corporate affiliation with your hospital), there should be an agreement in place between the CVO and the hospital.

An agreement should define the obligations of the CVO, including the services that it will provide.  The agreement should also specifically identify the information that will be verified and the sources that will be used for verification purposes.  If ongoing monitoring of practitioners’ credentials is a part of the services the CVO will provide, the agreement should state this and indicate the credentials that will be monitored (e.g., Medicare and Medicaid sanctions and exclusions).

Furthermore, sharing of confidential credentials information should be addressed and include provisions on how sensitive information such as National Practitioner Data Bank reports and drug or alcohol treatment information will be handled and shared.  If the hospital is involved in delegated credentialing for third-party payors, there are special considerations for sub-delegation agreements, which would include agreements with an external CVO to perform verification activities.

Specifically, the agreement must require semiannual reporting of the CVO to the hospital on its conduct of the contracted-for activities, describe the process by which the hospital evaluates the CVO’s performance under the agreement, and describe the remedies available to the hospital if the CVO does not fulfill its obligations, including revocation of the delegation agreement.

May 31, 2018

Posted on by hortyspringer

QUESTION:        The case description in McGary v. Williamsport Reg’l Med. Ctr. references the fact that a hospital “denied” a physician’s application for failure to meet threshold eligibility criteria.  Is that really a “denial”?  Isn’t there a better way?

ANSWER:            YES, there is a better way.  Medical Staff bylaws or credentials policies should clearly incorporate the concept of “eligibility” to apply for appointment and/or clinical privileges and should include a comprehensive list of objective eligibility criteria that must be met in order for an applicant to be considered eligible.  The threshold eligibility criteria should address both appointment qualifications (things like not having had a license revoked by a state agency) as well as privilege qualifications (things like the volume requirements at issue in the case, or additional certifications).   The provision should clearly allow for the determination that an applicant is not eligible for appointment and state that applications from individuals who do not meet the threshold eligibility criteria will not be processed.

Incorporating such a step into the bylaws would require that individuals who request applications be sent a request for application form that outlines, in detail, the threshold eligibility criteria for appointment, and requests that the applicant provide proof that he or she meets those threshold criteria.  Alternatively, if the idea of incorporating a two-step request for application process is too onerous, this could also be accomplished by sending a detailed cover letter with the application form that sets out the eligibility criteria.  Those individuals who do not meet the “threshold” criteria for Medical Staff appointment and clinical privileges should be informed that they are ineligible to receive an application or to apply for staff appointment and privileges.  The bylaws should also clearly state that a determination that someone is ineligible to apply is not a “denial” of appointment that entitles the individual to a hearing, nor is it reportable to the state licensure agency or the National Practitioner Data Bank.