by Kelly McIntosh

Marking the first update since September 2001, the Health Resources and Services Administration (“HRSA”) division of the Department of Health and Human Services (“HHS”) has issued a draft of the revised National Practitioner Data Bank (“NPDB”) Guidebook. The release of the draft Guidebook was announced in the Federal Register on December 27, 2013 and the period to submit comments to the draft is ongoing until January 31, 2014.

The revised Guidebook includes expanded and improved examples about reporting to and querying the NPDB, live links to cited statutes and regulations, and useful tables explaining NPDB policies. Also incorporated in the revised Guidebook are legislative and regulatory changes adopted since the last edition. Perhaps the most significant regulatory change incorporated in the revised Guidebook is the merger of the NPDB and the Healthcare Integrity and Protection Data Bank (“HIPDB”) which occurred on May 6, 2013 pursuant to the Patient Protection and Affordable Care Act (“ACA”).

The revised Guidebook also expands on certain areas where there has previously been uncertainty, including when an “investigation” by a health care entity has commenced. On that topic, the revised Guidebook includes additional details and examples regarding when an investigation has commenced. Specifically, the draft Guidebook provides that “an investigation is not limited to a health care entity’s gathering of facts. An investigation begins as soon as the health care entity begins an inquiry and does not end until the health care entity’s decisionmaking authority takes a final action or formally closes the investigation.”

The revised Guidebook also specifies that routine, formal peer review processes or activities where the health care entity “evaluates, against clearly defined measures, the privilege-specific competence of all practitioners” do not constitute “investigations” for purposes of reporting to the NPDB. These activities are contrasted with a formal peer review process commenced when, “issues related to professional competence or conduct are identified or when a need to monitor a physician’s performance is triggered based on a single event or pattern of events related to professional competence or conduct.” That process is considered an “investigation” for the purposes of reporting to the NPDB. The Guidebook revisions on this topic should serve as useful guidance on the requirement for certain entities to report the surrender or resignation of a physician’s privileges while under investigation or in return for not conducting an investigation.

The NPDB was established under the Health Care Quality Improvement Act (“HCQIA”) and is a confidential information clearinghouse of information serving primarily as a national flagging system and intended to facilitate a comprehensive review of the professional credentials of health care practitioners, health care entities, providers, and suppliers. Reporting is required to the NPDB for various actions, including medical malpractice payments, certain adverse actions resulting from professional review actions and licensure actions, and Medicare and Medicaid exclusions. Entities required to report to the NPDB include medical malpractice payers, hospitals and other health care entities, professional societies, health plans, peer review organizations, private accreditation organizations, Federal Government agencies, State law enforcement agencies, State Medicaid fraud control units, State agencies administering or supervising the administration of a State health care program, and State licensing and certification authorities (including State medical and dental boards).

The HRSA has extended the deadline to submit comments to the draft Guidebook until January 31, 2014. After comments have been reviewed, the final version of the Guidebook will be issued by the HRSA. Medical staff professionals, other individuals involved in reporting to the NPDB, and those who could be reported to the NPDB should review the draft Guidebook, both for its instructive content and for the opportunity to comment on the draft to make the final Guidebook even more useful. To receive a copy of the draft revised Guidebook, email the Division of Practitioner Data Banks at NPDBPolicy@hrsa.gov. Comments to the draft Guidebook may also be submitted to that email address.

Contact the Holland & Hart Health Care Law Group if you have questions about the revised Guidebook, the process to comment on the draft Guidebook, or the NPDB.

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For questions regarding this update, please contact
Kelly McIntosh
Holland & Hart, 5441 Kietzke Lane, Second Floor, Reno, NV 89511
email: ksmcintosh@hollandhart.com, phone: 208-383-3913

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