Have you received notice of an abeyance? Is the military looking into claims that you did something improper regarding the medical care you provided to your patients? While it is our hope that you never find yourself in the military’s crosshairs for allegations of some sort of medical malpractice or misconduct, many of these complaints may not directly result from clear and clean examples of such, and not knowing what to expect during these processes and investigations can be the difference between surviving an investigation into your conduct versus having any allegations reported to your home licensing state.

Every health care provider—both civilian and military—must hold a license in the state(s) in which they intend to practice or provide any type of medical treatment. However, for those seeking employment in a military treatment facility, they must meet a long list of requirements, including degrees and evidence of licensure, in order to receive professional credentials. A credentialed provider’s ability to practice in the military is referred to as a “privilege” of medical practice. A military initiative known as the “quality assurance and licensing program” verifies the legitimacy of medical practitioners’ licenses and complies with Defense Health Agency Procedures Manual 6025.13.

Although the DHA Manual provides rules for how the credentials board, which regulates clinical privileges for health care physicians, should be run, there can be significant variation.

What makes things more difficult is that many providers think they can talk their way into reinstatement and oftentimes lose their “privileges” before realizing what is going on and how it could impact their medical and military careers. By paying close attention to the adverse privileging action process and the rights you are entitled to outlined in this article, you can best ensure that you set yourself up to survive any investigation aimed at your conduct rather than having allegations reported to your home licensing state.

An Overview of the Adverse Clinical Action Process

The beginning stages of the adverse clinical action process are marked by the initiation of a Quality Assurance Investigation (QAI), which is supposed to be an impartial investigation by a peer with a similar background and experience to that of the provider under investigation. The action is typically initiated when a provider is accused of incompetence, malpractice, or shows signs of impairment.

Once the investigation is completed, the provider—in this case, you—would be given a copy of the report and afforded an opportunity to respond and contest any recommendations made by the Investigating Officer. These recommendations can range from a denial, restriction, reduction, or revocation of all privileges held by the provider.

The Credentials Committee then reviews the QAI report and the statement from the provider under investigation before making a recommendation to the Medical Treatment Facility (MTF) Commander. The Commander will then issue a decision, and the provider will be afforded an opportunity to appear before a panel of impartial peers. This panel is composed of peers with similar backgrounds and experiences as the provider under investigation. This due process right is something that the provider must request. If the provider chooses not to request a peer review hearing, then the MTF Commander’s decision would be final.

The hearing process is the provider’s opportunity to contest the decision of the MTF Commander before a panel of his/her peers. The hearing process is adversarial in nature. The MTF will assign a representative to present the MTF’s case. These representatives often call witnesses who have an adverse opinion of the provider under investigation. Panel members can ask questions of the MTF witnesses and often do so in their pursuit of the facts needed to make a decision.

If the Panel makes an adverse recommendation, the Privileging Authority often follows that recommendation, but not always. If revocation or restriction of privileges is recommended, the provider and the associated report will be referred to the National Practitioner’s Data Bank (NPDB).

This repository is required to collect and report information on providers who have been professionally disciplined by a state licensing board or health care entity. The NPDB is searched before a provider is hired by an entity’s medical staff and when renewal of privileges is necessary. A provider who has been reported to the NPDB can expect to encounter significant prejudice in their career following a report to the NPDB.

Providers facing a QAI or exercising their due process rights must not assume that a QAIO (Quality Assurance Investigating Officer) or Peer Review Panel will make a recommendation in their favor. Rather, they should be prepared to contest the evidence and testimony that will be presented against them. Any provider facing a QAI or electing to appear before a Peer Review Panel should consult with experienced counsel who can ensure the provider’s rights are not infringed upon and that the appropriate legal and health care standards are being applied.

Eric Duncan is a senior associate in Tully Rinckey PLLC’s Buffalo office, where he focuses his practice on military law. Prior to joining Tully Rinckey, Eric served in the Infantry of the United States Marine Corps. After transitioning from military service, Eric completed law school, where he conducted research into veteran groups and resources and worked as a founding member of the Veterans Legal Practicum at the University at Buffalo School of Law. Eric takes pride in defending our nation’s men and women in uniform. He can be reached at 8885294543 or at info@tullylegal.com.