Health Law Daily Wrap Up, HEALTH CARE COMPLIANCE NEWS—Practitioners facing “ruinous” NPDB reports lack due process, warn ABA speakers, (Apr 4, 2025)

By Sheila Lynch-Afryl, J.D., M.A.

The Supreme Court declined to weigh in on the issue by denying a petition in late 2023.

Presenters at the American Bar Association’s Emerging Issues in Healthcare Law Conference in Long Beach, California, warned of the lack of due process for practitioners who face “career ruining” reports to the National Practitioner Data Bank (NPDB). During the April 3 session on “The Tyranny of the NPDB,” Bruce Howell, professor at Willamette University College of Law, Ellee Cochran, partner at Husch Blackwell, and Kenya Woodruff, partner at Katten Muchin Rosenman LLP, also gave pointers for practitioners contending with this situation and described possible legislation solutions.

The Health Care Quality Improvement Act of 1986 (HCQIA) (42 U.S.C. §11101 et seq.) created the NPDB. A variety of entities, including hospitals, must report to the NPDB information such as adverse clinical privileging actions, medical malpractice claims payments, and certain adverse licensure actions. The presenters noted that for hospitals, reportable actions are broader than clinical issues in hospitals and can include “unethical” behavior. If a peer review process complies with applicable requirements, 42 U.S.C. §1111 provides qualified immunity for those involved in the process.

While a physician is entitled to due process during peer review, there is no due process for the NPDB. Under 45 C.F.R. §60.6, the subject can disagree with either the factual accuracy of the report or whether the report was submitted in accordance with NPDB reporting requirements. If this process is unsuccessful, the subject can dispute the report to HHS under 45 C.F.R. §60.21; presenters noted, however, that this process does not involve a review of the underlying reasons for the report. In other words, said Howell, the practitioner must go “on bended knee” to HHS, at which time “you’re at that person’s mercy.”

Help is likely not on the horizon from the U.S. Supreme Court, which declined to weigh in on the issue in 2023. The surgeon in Doe v. Rodgers sued HHS and the NPDB, alleging that he was “the victim of a false and fraudulent” hospital adverse action report (AAR) to the NPDB. The district court dismissed, finding in part that the doctor failed to establish a due process violation because the right to practice a chosen profession is not a “fundamental” right. He sought Supreme Court review, arguing that the lack of due process “at multiple levels has resulted in over-inclusive AAR reporting of skilled and competent doctors onto the NPBD, which unconstitutionally prevents them from further practice of their lawful profession.” The Supreme Court denied his petition.

What, then, should be done about the “tyranny” of the NPDB? Howell noted that after the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, which overruled the Chevron doctrine and requires courts to be less deferential to agency interpretations of statutes, there is little chance of HHS issuing regulations, “at least any that hold up.” Instead, he said, Congress would need to pass legislation, which he suggested should provide for at least one interim appeal—perhaps performed by an administrative law judge—before HHS addresses the case.

“There really isn’t a legal remedy,” noted Howell. In light of this, he said one takeaway is to establish credibility with state regulators right away, because a doctor has to have a license to make a living. Cochran also advised that practitioners should “try to avoid a report at all costs.”

Companies: American Bar Association; Willamette University College of Law

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