Offenders list to include sanctioned physicians

New government data bank will register all adverse actions’ against providers

If the OIG gets its way, a new federal database will register all so-called adverse actions taken against providers — even if those actions are still under appeal.

The Healthcare Integrity and Protection Data Bank (HIPDB), mandated by the HIPAA legislation, is intended to be a register of any adverse actions against providers, such as civil or criminal judgments or convictions, licensing actions, and exclusions. It would include actions that involve unsound fiscal, business or medical practices that cost Medicare money, don’t meet accepted standards of care or affect patient care.

That’s straightforward enough, and few people are likely to challenge the concept of a system to track repeat offenders. But the fact that adverse actions still under appeal by physicians, hospitals and other providers must also be submitted troubles Pat Smith, director of governmental relations for the Englewood, CO-based Medical Group Management Association. "It raises a basic question of fairness," Smith adds. It also troubles a compliance officer at a large university group practice in the Southwest. "If it’s unresolved, how can it go into a data bank?" asks the compliance officer, who asked for anonymity.

Another rub lies in a provision of HIPAA that gives HHS the discretion to include other types of adverse actions. OIG believes Congress "intended a broad interpretation of the terms health care fraud and abuse,’" according to the proposal. And the agency is choosing to define adverse actions to include administrative decisions by health plans, such as depriving a practitioner of clinical privileges.

Hold on, says Bill Mahan, executive director of the National Healthcare Anti-Fraud Association, which represents private insurers and HMOs. No health plan on earth is going to restrict a physician and publicly admit it’s because of concerns about fraud. That’s an open invitation for a lawsuit. Health plans dread finding themselves caught between the proposed $25,000 per day fine for not reporting adverse actions and a multimillion-dollar lawsuit from an outraged physician, Mahan says.

In addition, the current crusade against health fraud makes it easy for a provider to get a black mark, worries the Southwestern compliance officer. "The ability to accuse someone in a group practice or hospital setting is very easy if there’s a simple mistake that ends up costing millions," she adds.

Other facets of the proposed regs, which are open for public comment until Dec. 29, include:

-Those having to report adverse actions and those having access to the database include HMOs, private insurers, and government agencies.

-Providers whose actions must be reported to the data bank include physicians, nurses, chiropractors, podiatrists, emergency medical technicians, physical therapists, pharmacists, clinical psychologists, acupuncturists, dietitians, aides, and licensed or certified alternative medicine practitioners such as homeopaths and naturopaths.

-Those who submit reports to the HIPDB won’t be liable for their accuracy unless they actually knew them to be false. Federal and state agencies must submit reports to the data bank either within 30 days of the adverse action or when the agency knew the adverse action was taken.

-Agencies and health plans would have to collect Social Security and Employer Identification numbers for purposes of reporting to the HIPDB.

-Doctors won’t be able to evade the system by voluntarily surrendering, or not renewing, their licenses before they are sanctioned. Any provider under investigation, or who surrenders a license to settle a probe, will be reported to the HIPDB.

-OIG wants reporting to include any adjudicated action, such as orders by an administrative law judge, civil monetary penalties and assessments, revocations, debarments, and loss of clinical and staff privileges at a health plan.

-Anyone accessing the data bank would pay a fee, though the subject of each report to HIPDB gets a free copy. HIPDB records may only be accessed for purposes of preventing health fraud and improving patient care. For privacy reasons, the data bank won’t contain any individually identifiable patient records.

-Providers can dispute the accuracy of a report to the NIPDB, though they can’t dispute the underlying judgment that fueled the report.

-The program will be phased in gradually, beginning with licensure actions, federal criminal convictions and civil judgments, and exclusions.