Reporting Requirements under Federal Law and Regulations

Submitted by New Jersey Professional License Defense lawyer, Jeffrey Hark

Under Federal law, health care practitioners (including doctors, dentists, etc.) are required to provide certain government entities with information regarding any malpractice judgments or settlements. Under the Health Care Quality Improvement Act, practitioners and other entities (such as health care providers and insurance companies) are required to report certain adverse information to the National Physicians Data Bank. 42 U.S.C. § 11131-34 (2012). Any entity (including insurance companies) which makes payment under a policy of insurance, self-insurance, or otherwise in settlement or partial settlement of a medical malpractice action or claim must report such a payment to the NPDB. § 11131. Though the original regulations that accompanied this law required even individual practitioners to report payments made for malpractice judgments, that view failed to survive judicial review. In 1993, the Circuit Court of Appeals for the D.C. Circuit held that requiring individual practitioners to report payments made out of their own pockets for their own benefit went beyond the scope of authority granted by Congress. American Dental Association v. Shalala, 3 F.3d 445 (D.C. Cir. 1993). That court held that the law clearly stated that “entities” were required to make reports to the NPDB, but individual persons were not so required. Id. As such, the NPDB altered its regulations, such that while a professional corporation or other business entity comprised of a sole practitioner making a payment must report such a payment, a practitioner or other person making a medical malpractice payment out of personal funds is not required to report that payment to the NPDB. See NPDB guidebook, www.npdb-hipdb.hrsa.gov/resources/NPDBGuidebook.pdf, p. E-10.

Federal regulations require that as to any malpractice settlement, judgment, or arbitration award, along with the biographical information of the practitioner and any insurer involved, several pieces of information be filed with the NPDB. 45 C.F.R. § 60.5, 60.7 (2011). With respect to such settlements or judgments resulting in payment, any entity or insurer must provided the NPDB with the following information regarding the settlement: where the action or claim was filed with an adjudicative body including the case number, the dates on which the acts or omissions which gave rise to the action or claim occurred, the date of the settlement or judgment, the amount paid (including the date of payment and whether the payment was for a settlement or judgment), a description of any conditions or terms attached to the settlement, a description of the acts (or omissions, injuries, or illnesses) upon which the claim was based, and a classification of the acts based upon the reporting code. 45 C.F.R. § 60.7. The regulations specifically define a medical malpractice claim or action as “a written complaint or claim demanding payment based on a physician’s, dentist’s or other health care practitioner’s provision of, or failure to provide health care services, and includes the filing of a cause of action based on the law of tort brought in any State or Federal court or other adjudicative body.” 45 CFR 60.3. Sexual harassment, it is worth noting, is an intentional tort under substantive tort law, as are assault and battery. All such medical malpractice settlement payments must be reported to the board within 30 days of when the payment is made. 45 C.F.R. § 60.5(a).

Federal law also requires State Boards of Medical Examiners to report revocations or suspensions to the NPDB. 42 U.S.C. § 11132. State boards must report the revocation, suspension, or restriction of a physician’s license or any censures, reprimands, or probations placed on the physician relating to his professional competence or conduct. Id. the board would also have to require any surrender of such a license. Id. Likewise, federal law requires health care entities to report on adverse actions taken that affect a physician’s clinical privileges. 42 U.S.C. § 11133. Health care entities must report any adverse action taken affecting the clinical privileges of a physician lasting more than 30 days. Id. Likewise, health care entities must provide the NPDB with information regarding the surrender of the clinical privileges by a physician while such a physician is under investigation relating to possible incompetence or improper professional conduct or surrender occurring in return for the entity not conducting such an investigation or proceeding. Id. at (a)(1)(B). Substantive regulations likewise state that all of the following type of organization must report such adverse actions: hospitals, other health care entities, Boards of Medical Examiner State licensing authorities, professional societies of practitioners which take adverse licensure of professional review actions, State licensing or certification authorities, peer review organizations, and private accreditation entities that take negative actions or findings, as well as insurance companies making payments based upon medical malpractice actions or claims. 45 C.F.R. § 60.2. Any adverse action must be reported within 15 days when the entity took that action. 45 C.F.R. § 60.5(c)-(d). Any suspension of license or similar action must be reported within 30 days. Id. at (b). Ultimately, the information that must be reported to the NPDB includes information on any payment in settlement of a malpractice claim as defined above or any adverse action restricting licensure or privileges.