2015 NPDB Guidebook update’s FPPE implications still hazy
This week, CRC Daily dives into focused professional practice evaluation (FPPE), which is among the medical staff governance processes affected by last year’s substantive updates to the National Practitioner Data Bank (NPDB) Guidebook.
The Healthcare Quality Improvement Act of 1986, which formed the legislative impetus for the NPDB, specifies that organizations must report a physician's "surrender of clinical privileges" while the individual is under investigation for potential incompetence or improper conduct, or in return for not initiating such activity. In the updated Guidebook, however, the NPDB classifies a voluntary (and often temporary) agreement to limit privileges during an investigation as surrender, which some experts call an overreach.
Beyond the implications for traditional peer review safeguards, experts say the more encompassing definition blurs the line between routine peer review processes and formal investigations. The NPDB uses broad strokes to distinguish the two activities in the updated Guidebook. It states, for example, that "a routine, formal peer review process" does not constitute an investigation when "the health care entity evaluates, against clearly defined measures, the privilege-specific competence of all practitioners." However, a peer review activity that draws on "a formal, targeted process" to identify "issues related to a specific practitioner's professional competence or conduct" is considered an investigation.
This distinction seems to cut across FPPE lines: Although FPPE is an integral element of routine peer review for many accredited institutions, it is also used to dig deeper into potential performance issues. "If you look at the way they define 'investigation' in the ultimately revised Guidebook, it certainly would include anything that one might characterize as an FPPE," says Harry Shulman, JD, partner in the San Francisco office of healthcare law firm Hooper, Lundy & Bookman, P.C.
Others see the residual gray area—the Guidebook stops short of explicitly referencing FPPE—as an opportunity for organizations to make their own determinations about whether focused review constitutes an investigation. Because the NPDB establishes that it "may look at a health care entity's bylaws and other documents for assistance in determining whether an investigation has started or is ongoing," Catherine M. Ballard, Esq., partner in the law firm of Bricker & Eckler based in Columbus, Ohio, and executive director of its affiliated consulting company, The Quality Management Consulting Group, recommends distinguishing routine peer review activities (including FPPE) from formal investigations that have NPDB implications in medical staff bylaws and policies.
Shulman takes a different view, advocating "fairly strongly against amending the medical staff bylaws to try to incorporate principles from the Guidebook."
For more on Shulman’s and Ballard’s opposing strategies for addressing the NPDB’s expanded definition of investigations, read the lead story in the August 2016 issue of the Credentialing Resource Center Journal.