Vasilios "Bill" Kalogredis.

The National Practitioner Data Bank (NPDB) is a web-based repository of reports containing information on medical malpractice payments and certain adverse actions related to health care practitioners, providers and suppliers. Established by Congress as part of the Health Care Quality Improvement Act of 1986 (HCQIA), it is a workforce tool that prevents practitioners from moving state to state without disclosure or discovery of previous damaging performance. The impetus behind the NPBD was the perception that quality improvement and medical malpractice had become nationwide problems too big to manage at the state level. HCQIA called for the creation of a national database "to protect peer review bodies from private money damage liability and to prevent incompetent practitioners from moving state to state without disclosure or discovery of previous damaging or incompetent performance."

Under HCQIA, health systems, hospitals, their medical staffs, state medical boards and other bodies that discipline clinicians are required to report serious professional sanctions imposed by them to the NPDB. Organizations that submit reports to the NPDB are responsible for the accuracy of the information they submit, and are required to certify that the report is accurate. The database is accessible to other hospitals and boards, insurance carriers and other payers, and most institutions which hire and fire physicians; and, as contemplated by Congress, such persons now routinely consult the NPDB to look for a history of professional discipline before recruiting any clinician or granting privileges.

The NPDB is overseen by the U.S. Department of Health and Human Services (HHS) and implemented through federal regulations (45 CFR Part 60) is governed by Title IV of the Health Care Quality Improvement Act of 1986 (HCQIA), Public Law 99-660, Section 1921 of the Social Security Act, and Section 1128E of the Social Security Act. The law requires the following actions to be reported by an eligible entity within 30 days to the NPDB and any similar state authority:

• 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.

NPDB records are broadly categorized as malpractice payments or adverse actions. In addition to reporting requirements, the law also defines when and how health care entities—primarily hospitals—must request information (such as when a health care practitioner applies for a position on the medical staff and every two years thereafter). Finally, the regulations describe which subsets of information are available upon request to other persons, entities or agencies.

Physicians who find themselves the subject of a report to the NPDB are notified (by mail or electronically) and given an opportunity to dispute the accuracy of the information. The ultimate decision about the accuracy of the report and whether it should be removed or altered rests with the Secretary of Health and Human Services. The report is then entered into "disputed status." As long as a report remains in disputed status, a notation identifying that the report is under dispute will exist on the report in the NPDB. This notation will be visible to all queriers of the report. The reporting entity and all identifiable past queriers of the report will also receive notification that the report has been placed in disputed status. However, entering a report into disputed status does not trigger an automatic review of the report by the NPDB. After placing a report in disputed status, the subject of the report must first attempt to resolve the dispute with the reporting entity. Reporting entities are solely responsible for the accuracy of information contained in NPDB reports and, in turn, only a reporting entity can revise, correct, or modify a report. The NPDB has no power to edit submitted reports.

The reporting entity can choose to void, revise, correct or leave the report as is. If, however, after 60 days the subject physician has not received a response from the reporting entity or is unhappy with the response received, the physician may request secretarial review of the report. Requesting secretarial review of a disputed NPDB report is known as elevating a report to "dispute resolution."

Federal regulations give the secretary of the Department of Health and Human Services (HHS) the authority to review, at the request of subject physicians, the accuracy of NPDB reports. This authority, however, has been delegated from the secretary of HHS to the Division of Practitioner Data Banks within the Health Resources and Services Administration's (HRSA) Bureau of Health Workforce.

Over the past few years, HHS has pushed back against physicians challenging peer review actions taken by hospitals and state boards. Among the "reportable actions" is whenever a physician voluntarily resigns while under investigation for reasons related to his professional competence or conduct. Last month, the U.S. District Court for the District of Columbia ruled that HHS correctly refused to delete a hospital's NPDB report about a doctor because he was under investigation when he resigned his medical staff privileges.

In response to several incidents of post-operative infections, Northwestern Medical in St. Albans, Vermont sent a letter warning Dr. Raymond Long, an orthopaedic surgeon, that the hospital would summarily suspend his privileges if he didn't comply with certain recommendations. On appeal, the court concluded that the warning letter did not end the Northwestern's peer review action against Long. Consequently, Long's resignation a day after receiving the letter took place while he was still under investigation. Northwestern reported Long's resignation to HHS.

Northwestern opened a peer review investigation against Long based on the high number of infections suffered by his patients following surgery, the court said. The hospital also investigated reports that Long engaged in confrontational conduct causing disruptions that compromised patient safety.

Long subsequently sued HHS after it denied his request to void the NPDB report because he was no longer under investigation at the time of his resignation.

Under NPDB rules, an investigation is considered to be pending until a hospital "takes a final action or formally closes the investigation." Northwestern's letter was not a "final action" because it gave Long 30 days to request a hearing on the recommendations, the court said in granting summary judgment for HHS. The court also found no support for Long's argument that Northwestern's report was made in retaliation for his alleged attempts to compete with it, rather than in furtherance of improving patient safety.

—Rachel E. Lusk, an associate at the firm who focuses on health law and health care litigation, assisted with preparing this article.

Vasilios J. Kalogredis is chairman of Lamb McErlane's health law department. He represents many medical and dental groups and thousands of individual physicians and dentists.