Peering into the IHS Physician Review Requirement

By: Natalie N. Mueller | Associate | natalie.mueller@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com
IHS Physician Review
The Indian Health Service (IHS), through the Indian Health Care Improvement Act (IHCIA) and the Health Care Quality Improvement Act (HCQIA), require that IHS health programs conduct physician peer review. However, often times small medical groups and clinics don’t prioritize the peer review process, and ultimately learn that peer review is not important until it’s important. Additionally, accrediting bodies, like the Joint Commission and the Accreditation Association for Ambulatory Health Care, Inc. (AAAHC) require ongoing physician peer review.

What is Physician Peer Review?

Physician peer review is based on the concept that no one knows your business like those in the same profession. The IHS Manual defines peer review as “an evaluation by a committee of medical providers to retrospectively determine if a clinician’s practice of medicine is within accepted standards of care.” But it is more than just a look backward. Peer review can help guide issues including a physician’s personal or professional conduct, the quality of care he/she provides, the adequacy of the physician’s medical record documentation and/or any adverse patient outcome.

What are the Benefits of Peer Review?

Peer review has a number of benefits for organizations, including better control over the health organization’s systems, greater quality oversight, and ultimately improved patient care. While those benefits alone should be enough to convince everyone to implement physician peer review, the failure to conduct peer review could lead to fines, penalties, and the loss of certain immunities.

When Does It Come Into Play?

Peer review should be included in a health program’s bylaws or policies and conducted regularly. A peer review policy guides when peer review is appropriate and/or necessary, and how a peer review body investigates allegations against a physician. A peer review policy should also provide an appeal process if a peer review results in a physician’s privileges being suspended, revoked, or terminated.

When Do You Have to Report A Physician?

Initially, the HCQIA did not require that federal programs report physicians to the National Practitioner Data Bank (NPDB). Eventually, the Department of Health and Human Services (HHS) agreed to participate in the NPDB, and as a result, IHS and tribal organizations are required to report any adverse clinical privileges action(s) based on a physician’s professional competence or professional conduct that adversely affects, or could adversely affect, the health or welfare of a patient. In May of 2015, the NPDB released a revised Guidebook clarifying the reporting requirements and providing examples of when entities are required to report. A copy of the Guidebook can be found here. IHS also requires that health programs report to a state board of medical examiners actions that adversely affect the clinical privileges of any physician for a period longer than thirty days, or actions that surrender or restrict any clinical privileges. It is unclear how this requirement would function in a state with different reporting requirements and/or timelines. What is even more unclear from the IHS requirements is where state law fits in regarding the vulnerability of a tribe with respect to a state law. For example, in California, the state medical board can sanction a health care entity for failing to report a physician to the medical board. If an IHS health program fails to report, would it be subject to sanctions? Even further, certain states provide for fair hearing practices for physicians who are disciplined. If a physician at an IHS health program wanted to petition for fair rights in the state court, it is undecided if the claim would be governed by federal law.

What Happens If You Fail To Report a Physician?

You could lose certain peer review immunity. Entities who fail to follow the HCQIA reporting guidelines can lose the immunity protections for both itself and its agents for up to three years. The HCQIA offers immunity to peer review participants when the peer review is done in good faith to promote quality health care, and when the practitioner is provided with adequate notice and hearing procedures. (42 U.S.C. §11112.) The IHCIA also protects individuals who perform peer review by providing immunity from civil liability for participating or for providing information to a peer review body, as long as the information provided was in good faith and the action was based on the prevailing professional standards at the time of the peer review activity. (25 U.S.C. §1675.)

Natalie is a member of Procopio’s Health Care practice group. She regularly assists Native American health clinics, hospitals, and medical groups with quality oversight compliance and governance. Natalie also advises and represents health care entities throughout the peer review and judicial review hearing process.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.