Expansion of National Practitioner Data Bank Requires Peer Review Organizations and Private Accreditation Entities to Provide Due Process Mechanisms

On January 28, 2010, the Department of Health and Human Services issued a final rule revising the regulations governing the National Practitioner Data Bank for Adverse Information on Physicians and Other Health Care Practitioners (NPDB). See 75 Fed. Reg. 4656. Among other important revisions, the final rule modifies the definitions of "peer review organization" and "private accreditation entity." Under the modified definitions, only organizations that make due process available to health care practitioners and health care entities can qualify as a "peer review organization" or a "private accreditation entity" with respect to the NPDB. Therefore, if an organization wants its adverse findings and actions to be included in reports to the NPDB, it must develop and maintain a system for providing due process.

The final rule does not specify the due process mechanisms that peer review organizations and private accreditation entities should utilize. However, those organizations and entities can find sound guidance in the due process standards established in the Health Care Quality Improvement Act of 1986 (HCQIA). See 42 U.S.C. § 11112. The HCQIA outlines due process standards for the professional review activities undertaken at hospitals and other health care entities. On a very general level, those standards require entities to provide adequate notice of a proposed adverse finding or action and the opportunity for a hearing.

While the final rule stresses that the NPDB will typically not evaluate whether a peer review organization or private accreditation entity has properly applied its due process mechanisms, it will require that the organization or entity have such mechanisms in place. The final rule becomes effective March 1, 2010. Thus, all peer review organizations and private accreditation entities should promptly review their current due process policies and procedures to ensure that they clearly meet the requirements created by the final rule's revised definitions.