Your Peer Review Committee recommends that a practitioner receive proctoring in connection with his next five surgeries. The Medical Executive Committee agrees. The practitioner invokes his right to a hearing under the facility’s Fair Hearing Plan. Every step of the way, your facility painstakingly follows the procedural requirements set forth in the Fair Hearing Plan, the facility’s other governing documents, and the law. After the hearing is held, your Hearing Committee agrees with the Peer Review and Medical Executive Committees that the five-surgery proctoring is appropriate. The Board agrees with all the Committees; the matter is final.
Does the facility need to file a report with the National Practitioner Data Bank (NPDB)? Depends on whom you ask.
First, the basics. The federal Health Care Quality Improvement Act (“HCQIA”) enunciates a health care facility’s NPDB reporting obligations. HCQIA requires health care facilities to report “professional review actions that adversely affect the clinical privileges of a physician for a period longer than 30 days.”1 This standard is repeated ad nauseam in the NPDB Guidebook. However, both the Act and the NPDB Guidebook provide no guidance when faced with an issue like the one posed above, i.e., when the length of the action taken is not expressed in terms of time, but, rather, in terms of a quantity of cases.
In Walker v. Memorial Health System of East Texas, the United States District Court for the Eastern District of Texas (the “Court”) recently dealt with this issue, and determined that an action such as the one described above was not reportable2. In Walker, the practitioner sought a preliminary injunction requiring the hospital to void the report the hospital made to the NPDB regarding a five-surgery proctoring requirement. The court granted the practitioner’s request, and ordered the hospital to void its report with the NPDB immediately. The court stated:
"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."3
The court explained that because satisfaction of the proctoring requirement turned on the pace and schedule of the hospital, as opposed to an explicit time frame established by the hospital in its decision, the action was not reportable.
The court was also concerned that a different conclusion would have a discriminatory effect in reporting. A practitioner in a rural community may not have five surgeries in 30 days and, therefore, would be reported. Conversely, a practitioner in a busier hospital would have more opportunities to complete the five surgeries within 30 days, and, therefore, would not be reported.
Since Walker, the NPDB has issued a statement reiterating that all adverse privileging actions that last longer than 30 days must be reported. According to the NPDB, the facility’s not enunciating an explicit timeframe in its decision is not the crux of the matter:
"The NPDB has consistently interpreted adversely affects to mean the impact of the restriction, and not the manner the restriction is written… . A restriction begins at the time a [practitioner] cannot practice the full scope of his or her privileges and is reportable to the NPDB once that restriction has been in place for 31 days… . The number of cases required to be proctored at the time of imposition, or the expectation that a restriction be concluded in fewer than 31 days, is irrelevant for reporting purposes. The reportability of the action hinges on whether the restriction is in fact in effect for a period longer than 30 days."4
It should be explained that, at this time, the Walker court’s decision is not binding on any other federal court other than the United States District Court for the Eastern District of Texas, or, for that matter, on any state court. In fact, the Walker court’s decision is currently on appeal to the U.S. Court of Appeals for the 5th Circuit. Thus, whether the Walker case becomes good law – anywhere – is yet to be determined.
1 45 CFR § 60.12(a)(1)(i).