The Department of Defense employs civilians, contractors, and service members to provide medical and mental health care to dependents, military members, and retirees/veterans. Of course, the goal is to provide the best care and have all the necessary training, skills, and technology to achieve that goal. However, there are times when adverse events occur, patients may claim malpractice, providers have personal or medical issues, and/or mistakes are made. If allegations are made that the provider engaged in misconduct or is impaired or incompetent, the provider’s treatment facility, also known as the privileging authority, will take action to investigate, and a provider’s privileges could be adversely affected, leading to the possibility of separation or termination and reporting to the National Practitioner’s Data Bank (NPDB) and state licensing authorities. The focus of this article is a discussion of the quality assurance investigation process, the adverse privileging action procedures, and the rights an affected provider should exercise to avoid potentially career-ending consequences.
What is an adverse privileging action? Practitioners are granted permission by their treatment facilities, or privileging authorities, to provide medical and other patient care services, which is also known as clinical privileges. The scope and limits of the provider’s practice are defined by the clinical privileges and are based on the capabilities of the facility, licensure, relevant training and experience, current competence, health status, judgment, and peer and departmental recommendations. However, if there is evidence of misconduct, impairment, incompetence, or any other conduct that unfavorably affects or could affect the health and welfare of a patient, then the privileging authority will take action that could lead to the denial, reduction, or revocation of clinical privileges. This is not a simple determination, and a provider cannot always assume that the process will work itself out. A provider accused of misconduct, impairment, and/or incompetence is entitled to due process and needs to ensure that they understand the process and their rights to protect against the prospect of harmful career consequences.
If allegations are made that the provider engaged in misconduct or is impaired or incompetent, the privileging authority must determine whether or not a full investigation is warranted. The rules favor a full investigation following any allegation of misconduct or impairment that is not determined to be baseless through preliminary inquiries.
An investigating officer, normally a provider with similar experience and training, will be appointed to investigate the allegations. The investigation is normally not limited to a specific case and may encompass a provider’s entire practice of medicine or a sampling of the provider’s entire practice. The provider is no longer interviewed during the investigation but is given a redacted copy of the investigation to provide comments. The investigation should include all enclosures, and the provider should be given access to relevant medical records.
The investigation and provider comments will be reviewed by the Military Treatment Facility’s (MTF) credentialing board (Credentialing Committee), which will normally make a recommendation to the MTF commander on what action to take against the provider.
The MTF commander will review the investigation and recommendations and will either direct reinstatement with or without monitoring and evaluation or propose an adverse clinical action (reduction, suspension, or revocation).
A provider’s primary due process right is an adversarial hearing before a panel of providers. But this is something that the provider must request. If the provider does not request a peer review hearing, then the privileging authority’s decision is final. At the hearing, witnesses will be called. Evidence will be admitted. The MTF is normally represented by a physician and legal advisor. A majority of the hearing panel members must be peers of the provider under review. The panel deliberates, makes findings for each allegation, and makes recommendations as to what, if any, adverse action should be taken against the provider. The hearing panel can also recommend reinstatement or reinstatement with monitoring and evaluation. The MTF commander will review the hearing findings and recommendations and then take final action.
If an adverse action is taken, the provider has the right to make a written appeal to the report authority. The report authority is either the director of the Defense Health Agency (DHA) or the service’s senior medical commander if the provider is not privileged by a privileging authority falling under the DHA. If the adverse action is final, reports will be made to the National Practitioner Data Bank (NPDB) and state licensing authorities. Servicemember providers will also face adverse administrative action: separation.
The NPDB is an electronic repository administered by the U.S. Department of Health and Human Services that collects and releases information on providers who have been disciplined by a state licensing board, professional society, or health care entity, such as a hospital, or who have been named in a medical malpractice settlement or judgment, among other things. The NPDB also includes providers who have been named in an active-duty death or disability payment. Industry standards call for health care entities to query the NPDB to determine if a provider has a history of substandard care and misconduct before appointing them to the entity’s medical staff and when renewing clinical privileges. As such, a provider with entries in the NPDB may face severe career consequences.
Having competent counsel to advise and advocate for the provider’s interests is often necessary to ensure a fair result and protect the provider’s career, license, and reputation. An affected provider should not assume that the matter will work out in their favor and should make sure they are taking every opportunity to ensure that their rights and interests are being protected. There are often many potential legal defenses and arguments that can influence the choices you make and the end result.
Heather Tenney, Esq. is a Partner in Tully Rinckey PLLC’s military and national security law and the federal employment law practice groups, where her experience as a litigation and advocacy attorney with the U.S. Army adds to the number of qualified attorneys within the firm’s practice. Heather possesses years of experience representing officers and enlisted service members in complex legal matters, including courts-martial, adverse command actions against troops such as administrative separations, Article 15 matters, and other forms of non-judicial punishments. She also served as a Claims Attorney with the US Army Claims Service and was responsible for adjudicating torts claims filed against the Army. She can be reached at (888)-529-4543 or at info@tullylegal.com.
