Initiating the Dispute with HHS
As mentioned in our previous blog post, Two Steps to Dispute an NPDB Report, after attempting to resolve a dispute with the reporting entity, a provider can elevate the dispute by submitting a dispute to the Secretary of the U.S. Department of Health and Human Resources (“HHS”). HHS’s jurisdiction to review reports is strictly limited, such that it can only review: (a) “if the report was submitted in accordance with reporting requirements”; (b) “if the reporting organization is eligible to report the information”; and (c) “if the report accurately depicts the action taken by the reporting organization and basis for the action in the organization’s written record.” It is important to frame the request in a way that allows HHS to agree and exercise its jurisdiction. For example, in a recent matter our firm worked on, our client resigned from employment while the entity was conducting an investigation into matters relating to our client. Generally, voluntarily surrendering privileges while under investigation is reportable, but only when the investigation relates to the physician’s professional competence and/or conduct with respect to clinical privileges or that was a precursor to a professional review action. Our firm argued that our client’s role as a clinical practitioner was not under investigation and thus the report must be reported.
Reporting Entity’s Repose
After receiving the dispute, HHS allows the reporting entity to submit a response with documentation in an attempt to support that the report was appropriately submitted. During this process, the NPDB generally does not keep the subject updated on the process. Often times, the reporting entity will share a copy of the response with the subject, but we recommend asking the reporting entity to share a copy of all correspondence to ensure the subject remains updated as much as possible.
HHS Decision
After reviewing the dispute and supporting documents from the provider and the reporting entity’s response, HHS will issue its decision either stating the report was correctly submitted or directing the reporting entity to correct or void the report. In the example we have referenced throughout, HHS agreed with our arguments that the report should be voided. HHS submitted correspondence to the reporting entity stating as follows (redacted as appropriate): “The record does not support the conclusions that the investigation concerned [the subject’s] professional competence and/or conduct with response to [] clinical privileges, or that it was the precursor to a professional review action. Therefore, [the subject] did not resign while under investigation for NPDB reporting purposes. We request the [the reporting entity] void the Report as soon as possible, but no later than thirty (30) calendar days from the date of this letter, as [the subject]’s resignation is not reportable to the NPDB. If you disagree with our recommendation, please explain your rationale and provide documentation to support your position.”
If you have a question about the NPDB or would like to discuss this blog post, you may contact our healthcare and business law firm at (404) 685-1662 (Atlanta) or (706) 722-7886 (Augusta), or by email, info@littlehealthlaw.com. You may also learn more about our law firm by visiting www.littlehealthlaw.com.
*Disclaimer: Thoughts shared here do not constitute legal advice.