Processing Federal Malpractice Tort Claims and Reporting to the National Practitioner Data Bank
National Practitioner Data Bank Reporting
From 1991 until mid-1997, the CB was responsible for submitting reports to the NPDB for the HHS. Approximately 95 reports were submitted during this period. A small portion of these reports involved cases where it was determined that the standard of care had been met; in accordance with Department policy, a statement was added to each of these reports that the “standard of care was met.” During this time period, the IHS had no input into the information submitted. In 1997, the CB was transferred organizationally to the OGC, and the submission of NPDB reports was interrupted for a variety of reasons; the responsibility to prepare and submit reports was not transferred to another Department entity. Therefore, for more than seven subsequent years, no provider’s names from settled HHS cases were submitted to the NPDB.
In 2003, the Office of the Inspector General, HHS, determined that the various operating divisions of HHS that had responsibility for providing health care were no longer following Department policy for NPDB reporting. A long series of discussions and meetings transpired over the next year and a half. Finally, the OIG mandated that the IHS (and other involved operating divisions of HHS) formulate a corrective action plan to reestablish a mechanism to achieve ongoing NPDB reporting, including the elimination of the backlog of cases. In early 2005, the IHS/RM began this required process.
The IHS is continuing to deal with a backlog of reporting, including some cases that date back to care provided in the early 1990s. The IHS has been submitting reports only on cases where it was determined by the Panel (MCRP) that the standard of care was not met. No reports have been submitted for any case where it was determined by the Panel that the standard of care was met, or that the adverse outcome was a result of a “system failure.”
To prepare a NPDB report, mandatory provider, payment, and clinical information has to be identified. Often, it is necessary to consult with the service unit risk manager, credentials coordinator, or clinical director to collect missing provider information. Before a report is submitted, the IHS makes every possible attempt to first notify the provider about this pending administrative action, even when the providers have long left government or tribal employment. If the provider had never been offered the opportunity to discuss their involvement in the case, or if they wish reconsideration, they are afforded the ability to submit an appeal to the Panel. When necessary, attempts are made to retrieve the medical records. Provider appeals are taken back to the Panel only when new or clarified information is present. The Panel then makes a determination whether to sustain or overrule their original decision regarding the standard of care, system issues, or provider(s) of record, whichever is being contested. The decision of the Panel regarding the appeal is final.
Once a NPDB report has been submitted, there are additional processes available to the reported individual in regards to dispute resolution. The provider has the opportunity to submit a “subject statement” that will be added to the NPDB report. Many providers choose to submit additional information further explaining their decision-making or actions relevant to the case. Once reported, an individual practitioner is responsible for informing the credentialing office of the facility or facilities where they practice.
A copy of the registered NPDB report is sent to the respective state licensing board(s) of the reported individual. A state board may wish to further review a particular reported case, depending on the circumstances. The IHS/RM assists the state boards in their investigation to the extent possible, but specific patient identifiers and peer review documents cannot be released.
Issues Regarding NPDB Reporting
- Large volume facilities, such as the IHS medical centers, have been involved in many tort claims over the years and therefore will have many employees (past and present) who have been identified as providers of record.
- Service units often do not have forwarding addresses for former employees, making a search for their whereabouts more difficult.
- Particularly for older cases, we have found it common that providers are either altogether unaware that a claim has been filed, or they were never offered the opportunity to participate in the claim review process. Currently, the IHS/RM is trying to ensure that providers are informed early in the claim review process and are given every opportunity to tell their stories to the Panel.
- In the past, providers involved in tort claims were often not kept abreast of the progress of a tort claim as it worked its way through the OGC, Panel, and DOJ. This process often takes years to come to a conclusion. Once again, the IHS/RM is attempting to improve its performance in this regard, even as the number of claims being processed increases.
- Not uncommonly, providers and service unit officials do not understand the role that the Panel’s decision has in the overall claim review process. There is confusion over the roles of the OGC, the DOJ and the Panel in determining which providers are named to the NPDB. It is important to realize that the OGC and particularly the DOJ are defending the Federal Government and are not involved in NPDB decisions. In accordance with HHS policy, the MCRP is the sole entity with the responsibility for deciding which practitioners will be named to the NPDB for a particular claim.
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