Introducing the Essential H.R. 2472, the Heath Care Professionals Protection Act of 2011, which had 16 Congressional Co-sponsors, but did not pass into Law.
As the AAPS reported, H.R. 2472 of 2011, represented a small, but definite, step forward in providing due process to physicians in peer review.
Physician and Congressman Joe Heck, D.O. (NV-3) introduced H.R. 2472 and it is co-sponsored by many of the other doctors in Congress, including Tom Price, MD; Ron Paul, MD; Charles Boustany, MD; Michael Burgess, MD; Scott DesJarlais, MD; Phil Gingrey, MD; Andy Harris, MD; Dan Benishek, MD; and Larry Buscon, MD.
The bill is a response to the growing problem of good physicians losing their careers as a result of the disastrous effects of reports to the National Practitioner’s Data Bank (NPDB).
Currently, hospitals typically report adverse actions taken against a physician regardless of whether the physician had a hearing or even knew about the investigation. As a result, physicians and other health care professionals are reported to the National Practitioner Data Bank before they have had a chance to defend themselves against the allegations made against them. This has resulted in the unnecessary destruction of numerous careers of good physicians and other health care professionals.
H.R. 2472 amends the Health Care Quality Improvement Act of 1996 (“HCQIA”) to require that due process be afforded to a physician or health care professional before any reporting occurs. This allows physicians or other health care professionals an opportunity to defend themselves before the entire country learns of a dispute which they may have with a hospital.
Lawrence Huntoon, MD, PhD, in 2011, reported this excellent analysis of this Bill:
If passed, it would advance due process for physicians in a couple of ways.
1. The amendment to 42 U.S.C. Sec. 11133(a), which sets forth the NPDB reporting requirements of professional review entities would prohibit a professional review entity from submitting a report to the NPDB while the physician is under investigation and before the physician is afforded adequate notice and hearing procedures.
This would mean that in cases of summary suspensions, precautionary suspensions and voluntary abeyances that go beyond 30 days, the professional review entity would be prohibited from filing an adverse action report in the NPDB prior to affording adequate notice and hearings to the physician.
[This amendment would prevent damage to a physician’s reputation and career, for instance, where a summary suspension is imposed and following a peer review hearing in the hospital it was determined that the physician did nothing wrong, and the summary suspension was not warranted. In some cases the hospital has refused to remove the adverse action report in the databank after the physician was exonerated by peer review.]
The other effect this amendment might have is it might provide a means of supporting a cause of action against a professional review entity when the entity has conducted a sham peer review, has filed an adverse action report against the physician in the NPDB, and has failed to provide “adequate notice and hearing procedures” before filing the NPDB report. This would include all adverse actions, not just summary suspensions.
It should be noted that the “adequate notice and hearing procedures” to which this amendment refers are the ones that currently exist in HCQIA Sec. 11112(a)(3)(b) + a new Notice Requirement as described below.
The amendment to Sec. 11133(a), which H.R. 2472 provides, focuses on NPDB reporting requirements, not requirements to obtain immunity. One of the worst provisions of current HCQIA law is that it basically says that if a professional review body does not follow the guidelines for adequate notice and hearing procedures as set forth in HCQIA, it still gets immunity. Here is what current HCQIA law provides:
Sec. 11112(b)(3)(D)(ii) – A professional review body’s failure to meet the conditions described in this section shall not, in itself, constitute failure to meet the standards of subsection (a) (3) of this section.
Note also, that we have the horrible 5th Circuit decision in the Poliner case, which is now being cited by other Circuits, which finds that a hospital, for example, need not follow its own medical staff bylaws in providing peer review to a physician in order to obtain immunity under HCQIA.
2. H.R. 2472 also amends section 11112(b)(2) of HCQIA, by adding an important Notice Requirement.
This amendment would eliminate an “ambush tactic” frequently employed by the hospital bar, in which new evidence of which the physician and his attorney had no knowledge would be presented, is suddenly introduced during a peer review hearing to the detriment of the physician.
This amendment would require that copies of “all of the evidence” to be presented at a peer review hearing shall be provided to the physician as part of the “adequate notice” requirement of HCQIA.