Last Updated: Jul 31, 2018
By Andrew C. Harvan, Esq., PAMED’s legal and regulatory analyst
This article is the second part of an article series on the National Practitioner Data Bank (NPDB). Part 1 in the series discusses who can and what must be reported to the NPDB – Read Part 1 Here.
And, find all our NPDB resources, including a two-part video series, here.
The National Practitioner Data Bank (NPDB) is a government repository that collects, stores, and discloses certain information concerning health care practitioners.
Once processed, an NPDB report is virtually permanent. NPDB information, however, can be voided if successfully appealed. Federal regulations, found at 45 CFR §60.21, contain a specific process by which the subject of a report can dispute NPDB information.
How Will I Know If I Am the Subject of a NPDB Report?
Once a report is processed, the NPDB will send a notification of the report, either through the mail or electronically, to the report’s subject physician (see 45 CFR §§ 60.18-60.19). Physicians may also perform a self-query at any time and request all reports of which they are the subject of. There are, however, monetary fees for self-queries. Eligible entities and individual practitioners are both subject to querying fees. Information on how to perform a self-query can be found here.
How Can I Dispute a NPDB Report?
If a subject physician disagrees with the accuracy of a NPDB report or questions whether the report was submitted in accordance with NPDB reporting requirements, the physician or their personal representative can enter the report 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.
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. Only a reporting entity can revise, correct, or modify a report. The NPDB has no power to edit submitted reports.
Confronted by a disputed report, the reporting entity can choose to void, revise, correct, or leave the report as is. If 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.
The NPDB will only review disputes pertaining to the factual accuracy of a report or whether a report was submitted in accordance with NPDB reporting requirements. The NPDB will not consider the merits or appropriateness of a reported action or the due process that the subject received. Dispute resolution, the NPDB cautions, is not a venue to challenge malpractice payments or professional review investigations.
Through dispute resolution, the NPDB will render one of the following decisions:
- Conclude the report’s information is accurate and reportable to NPDB, disputed status notation will be removed, and report will remain as is.
- Conclude report’s information is inaccurate and direct reporting entity to revise the report accordingly.
- Conclude that the adverse action was not reportable, the NPDB will void the report and distribute notice of voiding to all identifiable past queriers.
- Conclude that the disputed issue is outside the scope of NPDB review, report will be removed from disputed status.
Once a decision is reached by the NPDB, the NPDB will send the subject and reporting entity notification of the decision and a statement explaining the rationale used to reach this decision.
Reconsideration & Further Appeals
Reconsideration of a dispute resolution decision may be requested. The subject must submit a written request for reconsideration. This request must succinctly explain what issues the subject believes were inappropriately reviewed by the NPDB during its first consideration of the dispute and also include any information that was previously unavailable during the first review. Either the previous decision will be affirmed, or a new final decision will be issued. Reconsideration of dispute resolution decisions is provided for in the NPDB guidebook.
To varying degrees of success, physicians have also challenged dispute resolution decisions in federal court under the Administrative Procedure Act (APA), 5 U.S.C. § 701 - 706. The APA provides that individuals who have suffered a legal wrong because of a government agency decision are entitled to judicial review of that decision. To succeed in such a case, the wronged party must demonstrate that the agency action was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.
Adding a Subject Statement
The subject of a NPDB report can add a statement to the report at any time, see 45 CFR §60.21(b)(3). The report need not be in disputed status for the subject to add a statement.
Subject statements do not revise, void, or otherwise alter NPDB reports. However, subject statements provide an opportunity for the subject to clarify their involvement, give perspective on the reported event, explain their conduct, or provide additional information that can mitigate the negative impact of a report.
Subject statements are left to the discretion of the authoring physician. The NPDB reserves only the right to redact confidential information and offensive language. Unless edited or removed by the author, subject statements become a permanent part of the report.
More information on how to add a subject statement can be found in the NPDB Guidebook.
Steps can be taken to prevent the dissemination of information to the NPDB. These steps include ensuring that due process rights are respected during professional review proceedings and understanding what actions require a report to the NPDB. For example, any payment, including a settlement, made on behalf of a physician in a medical malpractice lawsuit must be reported to the NPDB.
If you wish to dispute a NPDB report, it is recommended that you seek experienced legal counsel immediately. The NPDB Dispute Process is a highly technical procedure governed by specific regulatory provisions.
Pursuant to policy passed at PAMED’s October 2017 House of Delegates, PAMED opposes any use of the NPDB to manipulate or dissuade physicians from application and participation on medical staffs.
PAMED is developing additional educational resources on the NPDB for member physicians. These resources will further explain the intricate details of the NPDB, how NPDB reports can be disputed, and steps that can mitigate the damage of a NPDB report.
A version of this article appeared in the spring/summer 2018 issue of Pennsylvania Physician Magazine, PAMED’s print magazine, and was reprinted with permission.