The National Practitioner Data Bank was established as a nationwide information resource, intended to prevent a doctor with practice or conduct problems from just moving to another area to conceal those issues.

This integrated sharing of information, through which a report in one area will go to other sites, also creates the reciprocal discipline scenario in which a report from one location triggers a disciplinary action in another, an action that then itself produces a report, multiplying the effect of the single original strike.

The question for the doctor then becomes whether there are points at which the process can be modified or even stopped to limit this outcome.

Because the NPDB is ultimately about patient protection its reporting requirement covers both negative reviews and attempts to avoid those. It includes adverse findings about a staff doctor and those that come up in an employment application, and it also includes the doctor submitting to a limitation to prevent a review or withdrawing before a negative conclusion is reached.

Effective guidance from an experienced lawyer is therefore essential from the start.

The lawyer will begin with three threshold issues.

• Did the report derive from an appropriate process?

NPDB reports must be based on a professional review action. This is one that (1) is conducted through formally adopted written procedures that provide for adequate notice and the opportunity for a hearing, (2) addresses the professional competence or conduct of the practitioner which could affect adversely the health or welfare of a patient, and (3) the outcome of which may adversely affect the practitioner’s privileges.

• Was the subject of the report appropriate?

Voluntary cancellation of a license, voluntary placement of a license on inactive status, and voluntary withdrawal of an application are not reportable if they have no connection to an investigation beginning or proceeding.

Administrative issues that result in a negative review, such as a non-renewed license, a lack of malpractice coverage, non-participation with a payor, or a deficit of CME or practice hours, are also not reportable.

• Was the review properly conducted?

As noted above, only a review conducted with due process can underpin a report, so an ad hoc hearing cannot qualify.  It must also be about conduct that can endanger a patient so a sham review can never meet the criterion. Reporting a doctor solely for engaging in competitive activities, a common reason for a sham review, is specifically excluded as a basis for a report. A report can also only be made if any available appeals have been concluded.

If the process fails on any of these points the lawyer will challenge it, and if a report was already sent to the Data Bank the lawyer will demand that it be withdrawn, which only the reporter can do. If the reporter refuses, the lawyer will bring the matter to the NPDB for resolution.

If, however, the process is appropriate then the issue becomes whether it is possible to avoid or limit a report’s effect.

• Professional review

The lawyer would proffer a corrective solution that falls below reporting levels.

If that is not possible then the lawyer would seek to have the review committee’s plan specify that the report will be amended or withdrawn if the doctor completes the process successfully.

• Medical malpractice

Although the NPDB states that settlement of a malpractice claim does not create a presumption that malpractice occurred, states still look at the reports of such in setting their own disciplinary standards.

Since only a payment by a third party on the doctor’s behalf is reportable, a settlement that they cover personally or that their hospital or group encompasses in its own payment will not be, and the lawyer will therefore try to engineer such if the doctor is unlikely to win their case.

• Is the doctor actually subject to reciprocal discipline?

This will come up when a doctor is being reciprocally disciplined in a state where they previously cancelled or limited their license.

This will depend on the state’s own laws. For example, a doctor who surrendered his license in California was held to be still subject to discipline in Iowa, where he had let his license lapse years before. The court held that the authority of the state medical board included jurisdiction over inactive licensees.

The lawyer will look at the second state’s laws to determine if a pre-emptive withdrawal will be effective in avoiding reciprocal disciplinary actions.

• Is the disciplinary rule in the second state actually triggered?

Just because a doctor’s action sustains discipline in one state does not mean that it will support reciprocal discipline in another. For example, a doctor who was disciplined in Texas for lying to a police officer was held not to be subject to reciprocal discipline in New York, where that offense was not a basis for a professional misconduct charge.

The lawyer will research the regulations in the second state and will challenge the application of disciplinary action there if appropriate.

• Medicare disqualification

Conviction of a crime involving the Medicare program or other healthcare fraud, patient abuse, or misuse of a controlled substance will result in automatic disqualification.  However, lesser offenses can come under “permissive disqualification”, which may allow the doctor to continue in the program.

The lawyer will therefore argue that the reported professional misconduct should come under the latter heading and should not result in exclusion from the program.

• Medicaid disqualification

Each state sets its own regulations for disqualification and that can create a “boomerang effect”: State 1 takes a disciplinary action against a doctor that does not warrant exclusion from Medicaid there. That action is reported to State 2 through the NPDB. State 2 then disqualifies the doctor from Medicaid under its own rules.  A report of that disqualification then goes back to State 1 through the NPDB and State 1 then disqualifies the doctor from its Medicaid program based on State 2’s exclusion even though it did not do so initially based on its own action.

If that doctor primarily practices in State 1 then the lawyer will meet with the Medicaid IG in State 1 and emphasize that it would be unjust to disqualify the doctor from participating in what is truly their home state and where they would not have been barred based on their offense, solely because of an administrative action in another state.

• Can the reciprocal effect of a report be mitigated?

Even if a report cannot be avoided, the doctor has the right to append their own “subject statement” about the reported events. This will then go out to everyone who already received the report and it will be sent along with any future notifications.

This is a chance to explain the doctor’s position. It is too vital for an upset and angry doctor to do on their own and the lawyer should have a primary role in drafting it.

In summary:

• If you are facing a professional review issue consult a knowledgeable lawyer before consenting to any action.
• Make sure that your lawyer knows about every license that you have, including the ones that you think are inactive or cancelled.
• Take the lawyer’s advice about crafting a softer landing.
• If you need to draft a subject statement, work with the lawyer on it so that it will have maximum value.

There is one final – and critical – point for the doctor themselves:  If you expect that a report will be made that will have reciprocal effects but you do not get any notifications then self-query with the NPDB.  Reporting is supposed to be prompt but it may not be and you do not want to be caught by surprise when you thought that a matter was over but, in fact, the report had just not been made yet.