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Nov 29 2017

OIG Work Plan Monthly Updates (September, October, and November 2017)

As previously explained in von Briesen's Legal Update OIG Work Plan Moves from Annual to Monthly Updates, the United States Department of Health and Human Services, Office of Inspector General (the "OIG") has decided to update its Work Plan monthly. Health organizations are advised to use these monthly updates to review and update policies and procedures based on the OIG's areas of interest and enforcement priorities.

von Briesen will continue to monitor Work Plan updates and provide insight into emerging legal trends through frequent Legal Updates and blog posts, such as this one. To stay informed of monthly Work Plan updates, please visit the von Briesen Health Law Blog and the OIG Work Plan page.

This Legal Update summarizes some of the significant OIG Work Plan updates released for September, October, and November 2017.

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Nov 03 2017

The National Practitioner Data Bank and a U.S. District Court Disagree on Mandatory Reporting Criterion

A Federal statute requires that any health care entity that "takes a professional review action that adversely affects the clinical privileges of a physician for a period longer than 30 days" file a report with the National Practitioner Data Bank ("NPDB"). See 42 U.S. Code § 11133. The statute has broadly been understood to mean that a restriction of privileges is reportable once it has been in place for 31 days. The U.S. District Court for the Eastern District of Texas recently challenged that understanding. See Walker v. Mem'l Health Sys., 231 F. Supp. 3d 210 (E.D. Tex. 2017).

In Walker, the court determined a hospital erred by reporting a privilege restriction that spanned more than 30 days because the sanction that stipulated the terms of the restriction failed to specify duration. The court concluded "whether a proctoring sanction is reportable should be established by the terms of the sanction at the time it is delivered, and not by whether, in fact, it takes more than 30 days to satisfy the requirement." After Walker, the NPDB appeared to take aim at the court's interpretation by releasing a policy statement explaining that it is the impact of a sanction that makes it reportable, not the way in which the sanction was written. In the NPDB's view, a restriction is reportable once it has been in place for 31 days, regardless of the expected length of the restriction when issued.

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