Licensed healthcare practitioners of all stripes must face adverse action reports in the Department of Health & Human Services' National Practitioner Data Bank (NPDB). Those adverse action reports can cause all kinds of serious trouble. Practitioners can lose their licenses, privileges, employment, and reimbursement, and even their freedom to criminal charges or finances to civil judgments, because of adverse action reports. Those losses are all good when the practitioner deserves the adverse action. But in far too many cases, the losses are from inaccurate, out of date, or even deliberately false adverse action reports against an innocent and competent practitioner.
If you have learned that your NPDB record includes an inaccurate, out of date, or misleading adverse action report, and your effort to get the reporter to correct it has failed, retain the Lento Law Firm's premier Professional License Defense Team to help you appeal the damaging report to the HHS Secretary. Don't suffer severe career harm simply because of stubborn and terrifying errors in an obtuse federal administrative system. Call 888.535.3686 or complete this contact form now for our skilled and experienced representation appealing your NPDB adverse action report to the HHS Secretary for correction.
NPDB Adverse Action Reports
The NPDB serves as a federal clearinghouse for key healthcare administrators to access to determine the fitness of healthcare practitioners. Yet the whole system can be rife with errors because no one checks the accuracy of the submitted adverse action reports unless and until the reported healthcare practitioner notices and complains about the error. The following factors complicate your risk of an inaccurate and severely damaging adverse action report.
Too Many Mandated NPDB Adverse Action Reporters
HHS regulations 45 CFR §§ 60.7 through 60.16 require all these individuals and entities to report adverse actions into the NPDB: malpractice insurers; state medical licensing boards; other state certification authorities; federal certification agencies; utilization and peer review committees; accreditors; hospitals; federal prosecutors; state prosecutors; federal healthcare programs; state healthcare programs; federal law enforcement officials; state law enforcement officials; anti-fraud agencies. Personnel from each of these entities have their own knowledge or lack of knowledge, skill or lack of skill, personalities, and agendas, when dealing with healthcare practitioners. And no one but you is checking.
Too Many Mandated NPDB Adverse Actions
HHS regulation 45 CFR 60.5 requires reports of each of the following events: malpractice settlements; malpractice civil judgments; license actions; certification actions; other unspecified negative findings; other unspecified adverse actions; criminal convictions; exclusions from healthcare programs; and other unspecified adjudicated decisions. These categories are ambiguous, leaving interpretation open to the above reporters, each with their own understanding and motive to impugn healthcare practitioners.
Too Many Mandated NPDB Healthcare Practitioners
HHS regulation 45 CFR 60.1 requires reports not just on physicians and dentists but also on unspecified “other health care practitioners.” Any practitioner holding a healthcare license may face an adverse action report of any of the above vague kinds, submitted by any of the above reporters, each with their own axe to grind.
Reporters Have Immunity for False Adverse Action Reports
HHS regulation 45 CFR 60.22 grants immunity from civil liability to individuals and entities making inaccurate and damaging adverse action reports. The federal legislators whose Health Care Quality Improvement Act of 1986 mandated the NPDB knew that the system would so often defame healthcare practitioners and so severely harm the careers of healthcare practitioners that reporters wouldn't risk making reports unless they had immunity. Ouch, but tough luck.
Too Much Mandated and Permissible NPDB Access
HHS regulations CFR 45 CFR 60.17 and 60.18 authorize or mandate NPDB searches by the following entities: state licensing boards; employers of healthcare practitioners; hospitals; attorneys suing hospitals for malpractice; law enforcement agencies; utilization and peer review committees; private health plans; and public agencies administering healthcare programs. Hospitals in particular must search the NPDB when hiring healthcare practitioners or offering privileges to healthcare practitioners, and every two years afterward. That's a lot of individuals from a lot of different entities making frequent searches of the NPDB, hunting for adverse information against you, each with their own motives, intentions, and interests.
Now you better understand how you've been dragged into an NPDB mess. Let's see how we can help you get out of it.
NPDB Adverse Action Report Revision
HHS regulation 45 CFR 60.21 expressly permits you to dispute the accuracy of an adverse action report. Good thing because no one else is responsible for making sure the reports are accurate or even appropriate. The regulation states simply that you are to “attempt to enter into discussion with the reporting entity to resolve the dispute.” You may try to convince the reporter that their report was false and that the reporter should withdraw or revise it. Good luck. The reporter just accused you of some significant wrong. The reporter probably won't believe, trust, or accept your arguments.
We Can Help with NPDB Adverse Action Report Voluntary Revision
Expect to get the cold shoulder treatment from the reporter. Instead of trying to convince the reporter on your own, retain us to do so. Our attorneys know what reporters generally require to show that they've made a mistake. We can make a convincing presentation with all appropriate documentation. Moreover, we may be able to convince your reporter that it faces substantial defamation liability, despite the statutory immunity, if it doesn't quickly correct its erroneous and damaging report. HHS regulation 45 CFR 60.22 withdraws immunity from civil liability when the reporter “has actual knowledge of the falsity of the information contained in the report.” Our presentation shows that the adverse action report is false and supplies actual knowledge. We can appropriately warn the reporter that it now faces civil liability including the damages that defamation law presumes. Let us help. We'll set the reporter straight.
NPDB Adverse Action Report Appeals
Your adverse action reporter, though, may have already refused to correct its report. In that case, we can help you invoke your appeal rights. HHS regulation 45 CFR 60.21 authorizes an appeal to the HHS Secretary when a reporter refuses to revise an inaccurate report. If the reporter has not revised or withdrawn the inaccurate report within sixty days, then the regulation expressly authorizes you to make an appeal to the HHS Secretary, asking that the Secretary review and correct the inaccurate report. The Secretary has thirty days to grant or refuse your appeal but may ask for more time if you have a good cause. Let us help with your appeal. The appeal procedure can prove surprisingly complex. And you only get one clear chance at an appeal. Let us make it your best attempt and a successful attempt.
The NPDB Appeal Procedure
HHS regulation 45 CFR 60.21 authorizes the following appeal procedure. First, the regulation states that you must follow the HHS Secretary's appeal format. If you fail to follow the Secretary's appeal format, the Secretary may reject your appeal without considering it. The appeal format can be quite particular. Don't expect to satisfy the format with a simple letter request. Second, your appeal must include all necessary supporting documentation. The regulation expressly warns that you must include with your appeal “appropriate materials that support [your] position.” If your documentation leaves gaps, is not verified and authenticated, or is simply unconvincing in the way in which you arrange, interpret, and present it, you will lose your appeal. Don't undertake your appeal on your own. Instead, trust the substantial appellate skills and experience of our premier attorneys. Let us give it your best shot for your best possible outcome.
The NPDB Appeal Review Standard
The most important part of your appeal, though, involves the appellate review standard. Appellate attorneys know that the outcome of an appeal depends on proper articulation and interpretation of the appeal review standard. As to the NPDB appeal review standard, HHS regulation 45 CFR 60.21 warns that “[t]he Secretary will only review the accuracy of the reported information” rather than “consider the merits or appropriateness of the action or the due process that the subject received.” This review standard is the absolute key to your successful appeal.
Interpretation of the NPDB Appeal Review Standard
When HHS regulation 45 CFR 60.21 warns that the HHS Secretary is not to “consider the merits or appropriateness” of the reported event, the regulation imposes a review standard typical of the limited review standards for appealing a decision of a lower body such as an administrative law judge, a judge in a bench trial in civil court, or a jury in a civil court trial. The appeal review standard defers to the decision already made. The review standard's intent is to prohibit the appellant from relitigating the whole matter on appeal before the HHS Secretary and instead to relieve the Secretary of a full hearing of the matter. That limited review standard is frankly inappropriate, though, because you didn't have a full hearing before an impartial factfinder. All you had was the opportunity to ask the reporter to correct its own inaccurate record. If, for instance, the adverse action report says you committed malpractice, the review standard doesn't allow you to relitigate the malpractice case. If the report says your unfitness caused you to lose your hospital privileges, you can't relitigate your fitness.
Our Application of the NPDB Appeal Review Standard
Our attorneys may nonetheless be able to make a compelling case for the HHS Secretary to correct the inaccurate adverse action report. HHS regulation 45 CFR 60.21 expressly permits the HHS Secretary to “review the accuracy of the reported information....” That authority and responsibility gives us the opportunity to contradict the inaccurate adverse action report with specific evidence including your documentation and attestation of your witnesses. We may not be able to directly attack the reported decision as wrong. We may not, for instance, successfully argue that the reporting licensing board or hospital was wrong. But we can attack the adverse action report's factual assertions. We may, for instance, be able to prove by documentation and attestation that you were not actually unfit, incompetent, or impaired, even if the adverse action report alleges so. It's a fine distinction but one that our skilled and experienced attorneys know how to make. Trust us with your best appeal. We know what we're doing.
The NPDB Appeal Decision
HHS regulation 45 CFR 60.21 authorizes the HHS Secretary to make any of the following decisions:
- conclude that the adverse action report is accurate, meaning in essence that you have lost the appeal, although the Secretary must include a brief statement in the disputed record, which if properly drafted can explain the dispute and help you diminish the report's adverse impact;
- conclude that the adverse action report is inaccurate, meaning that you have won the appeal and that NPDB officials will revise or withdraw the inaccurate adverse action report, while including the Secretary's statement as to the reason;
- determine that the matters that you dispute in the adverse action report are beyond HHS review, meaning that you have neither won nor lost the appeal, although the Secretary will include a statement to that effect in the record, potentially diminishing the report's adverse impact; or
- determine that the matter in the adverse action report was not reportable, meaning that you have won the appeal and that NPDB officials will remove the inaccurate report from the NPDB.
In each of the above cases, the regulation directs NPDB officials to distribute the HHS Secretary's decision to entities having requested and obtained a copy of the disputed adverse action report. In other words, NPDB officials are supposed to address your impacts by sending out the decision to hospitals, employers, insurers, law enforcement officials, or others who may have relied to your detriment on the disputed record.
Premier NPDB Appeal Representation
If you need to appeal an adverse National Practitioner Data Bank action report, retain the Lento Law Firm's premier Professional License Defense Team for your best appeal outcome. Call 888.535.3686 or complete this contact form now for our highly qualified representation.
