WHY?
A Big Surprise
Dr. Magnus Jobb was in for a big surprise – one that no medical professional should ever experience.
Magnus had just finished his first two-year contract with an employer. He was offered a more lucrative contract with a different institution because of his fantastic quality outcomes. Smart, young, and eager, he resigns and signs with the new facility.
Resigned while under investigation
Three months in, he’s notified that a National Practitioner Data Bank (NPDB) report is being filed against him. The reason? He resigned while under investigation.
But why… why would a talented professional with a record of successfully caring for patients get such a blight on his record?
The answer doesn’t lie in what he’s done wrong—or in what he hasn’t done right, for that matter—but instead a recent change in the NPDB’s definition of “investigation” that now can include an FPPE for cause, which is intended to be a collegial improvement process.
According to the NPDB Guidebook (April 2015/October 2018):
“The quality improvement plan … may be considered an investigation so long as it meets the other requirements for an investigation. The reporting entity needs to determine whether the quality improvement plan is focused on one practitioner for competency concerns and whether such plans typically lead to a professional review action.”
WHY NOW?
A hot topic moving at a glacial pace, but picking up momentum!
Changes in the medical field aren’t known for being expeditious. It’s been observed that the lag time between a well-evaluated medical practice and full national implementation may be up to 17 years!
The change in the “under investigation” definition and its resulting ramifications on practitioners is just now coming to the fore. In my experience talking with practitioners and medical staff leadership around the country, I’m constantly reminded that the majority of the field is either unaware of the change, its implications, or how to manage the change effectively.
Triple trouble
But with such potential impacts to practitioners and medical staffs, why is the issue just now being brought into the light? There are three reasons:
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It’s in our nature. Simply put, we’re slow to change. The medical industry is built on knowledge, but awareness (and subsequent practice) takes time.
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Counsel is becoming acutely aware of the issue. Hospital counsel are increasingly dealing with issues concerning negligent peer review. In addition, the solutions created can be less than optimal as hospitals don’t always have access to dedicated healthcare lawyers who understand the peer review process and can navigate the legal and functional requirements behind the FPPE and NPDB changes.
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Mergers and Acquisitions (M&A) leads to review of current policies. Driven by M&A, hospital systems find themselves asking lots of questions around peer review processes, policies, bylaws, protections, and culture.
WHAT?
The devil’s in the definitions
To understand the issue better, let’s take a closer look at “peer review”—more broadly, an evaluation of a medical professional using the Joint Commission’s six general competencies.
In 2018, NPDB amended the definition of “under investigation” such that it included situations in which there is 1) a focused evaluation of a practitioner, 2) is accompanied by an improvement plan, and 3) when failure to comply with the quality improvement plan typically leads to a professional review action.
The Joint Commission (TJC) has labeled two processes as FPPE:
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FPPE Initial — This type of FPPE is for new medical staff appointments or established practitioners requesting new privileges and is meant to serve as a check for practitioners who do not have a prior track record with the granted privileges at the institution.
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FPPE for Cause — This second type of FPPE is employed when a possible quality issue requires more evaluation. This evaluation can be considered an investigation under the new definition from the NPDB.
In both cases, the FPPE is a way of performing peer review. An FPPE for cause is a useful instrument to ensure providers continually perform and can get mentoring and tailored feedback. If all FPPEs for cause are considered an investigation, this may impair the ability of the organized medical staff to improve the quality of care and accountability of its members.
If the FPPE for cause is found to be an investigation and a practitioner resigns, a NPDB report should be generated.
IMPACT?
NPBD, a report that stays with you
That NPDB report stays with practitioners for the duration of their career, potentially affecting and limiting employment opportunities—as indelible as it is detrimental.
According to the NPDB, it’s “a database … that contains … adverse action reports on health care professionals.” The intent of the NPDB is to prevent dangerous physicians or dentists, such as Michael Swango and Christopher Duntsch, from simply moving from one hospital to another when their poor quality is identified and corrective action initiated against them.
Again, FPPE is intended to be a collegial process improvement. Yet resigning—even to take up a fresh opportunity in a new practice area—while under an FPPE for cause may be deemed to require the generation of an NPDB report.
All because of a change in the definition of investigation.
TAKEAWAYS
Good standing through better understanding
The details of this issue are complex. And the effects are significant and far-reaching. So, you need to understand the change and how to navigate it to better protect your medical staff and institution.
There are several solutions to this predicament. One such remedy—keeping the FPPE for cause below the level of the Medical Executive Committee, for instance—softens the impact of the rule change but may need further development based on state, current peer review processes, medical staff bylaws, and culture.
It takes experience to understand the best solution for your organization.
© 2024 Greeley. All rights reserved. This content draws on the research and experience of Chartis consultants and other sources. It is for general information purposes only and should not be used as a substitute for consultation with professional advisors. It does not constitute legal advice.
