Health Care Law Update

Federal Appeals Court Decides When HCQIA Investigations End

Wednesday, April 29, 2009

Earlier this year, the U.S. Court of Appeals for the First Circuit held that, for the purposes of the physician reporting provisions of the Health Care Quality Improvement Act (HCQIA), an "investigation" remains ongoing until the hospital has concluded its decision-making process. The decision in Doe v. Levitt, 552 F.3d 75 (1st Cir. Jan 14, 2009), affirmed the decision of the district court and marked the first time a federal appeals court addressed what constitutes an investigation under HCQIA.

Background

HCQIA requires hospitals to report to the National Practitioners Data Bank (NPDB) any professional review action that adversely affects a physician’s clinical privileges for a period of more than 30 days. The hospital also must report the acceptance of a physician’s surrender of clinical privileges while under investigation for possible professional incompetence or improper professional conduct.

Case Review

In Doe, the physician was accused of threatening an emergency room nurse. The hospital temporarily suspended the physician’s privileges and appointed an ad hoc committee to investigate the allegations. The ad hoc committee reported to the medical staff’s executive committee that the nurse could have reasonably perceived the physician’s actions to be threatening. The executive committee met with the physician and proposed that he be allowed to return to work, provided that he undergo psychological evaluations and monitoring. The physician refused the proposal and resigned. The hospital subsequently reported to the NPDB that the physician resigned while under investigation.

The physician challenged the data bank notification in an administrative appeal, asserting that he resigned after the "investigation" concluded upon the ad hoc committee’s report to the executive committee. The administrative judge and district court disagreed, relying instead on the statement by the Secretary of Health and Human Services in the National Practitioner Guidebook, a resource for NPDB users. Per the Guidebook, hospital investigations are "considered ongoing until the health care entity’s decision making authority takes a final action or formally closes the investigation." The ad hoc committee’s report did not signal the conclusion of the investigation, and the physician’s untimely resignation warranted the hospital’s NPDB report.

Practice Points for Hospitals and Physicians

In affirming the decision of the lower court, the First Circuit seems to have created a rigid framework in which the hospital and physician should take caution in discussing potential resolutions to an ongoing investigation. Hospital review committees should therefore be certain to communicate to the target of an investigation the context and timeline of the probe. Hospitals should consider defining what constitutes an "investigation" in the medical staff bylaws and incorporating the Guidebook’s interpretation into their medical staff decisions.

Conversely, physicians should be certain that a disciplinary review has reached its completion before contemplating taking action. Any physician under investigation should be certain that the investigation has run its course before contemplating resignation.

Andrew J. Siegel

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The material in this publication is based on laws, court decisions, administrative rulings and congressional materials, and should not be construed as legal advice or legal opinions on specific facts. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship.

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