In my representation of physicians in medical staff privileging matters over the past several decades, I have noticed a significant recent uptick in client inquiries regarding the “Focused Professional Practice Evaluation” (more commonly known as an “FPPE”).
An FPPE is part and parcel of the quality assurance/peer review process accredited hospitals must implement under Joint Commission standards to continually assess the care rendered by physicians within the institution. Being “hit” with an FPPE typically provokes discomfort, and prompts a physician to seek legal advice about potential implications and consequences.
Over the years that our New York healthcare attorneys and I have represented physicians in medical staff privileging disputes, the same six questions come up again and again:
Is it unusual for a medical staff member to be the subject of an FPPE?
It’s common for a physician new to the hospital’s medical staff to undergo a Focused Professional Practice Evaluation. Under Joint Commission standards, a period of FPPE is required for all new privileges, so most hospitals build it into the initial grant of clinical privileges.
An FPPE for a physician who’s been on staff for a while is a different story, because it can signal the hospital has questions about the doctor’s performance.
What are the rules a New York hospital must follow regarding the implementation of an FPPE?
The primary source of rules regarding the specific implementation of an FPPE are the hospital’s medical staff bylaws and accompanying rules and regulations. However, these provisions vary widely from hospital to hospital.
Some hospitals generally provide that as part of the quality assurance process, an FPPE can be implemented when indicated, leaving the specifics to the discretion of hospital leadership. Other hospitals have elaborate bylaw provisions concerning the circumstances under which an FPPE can be imposed, the permissible scope and duration of an FPPE, and in some cases provide the physician with notice and an opportunity to challenge the FPPE.
A thorough review of the hospital’s bylaws is critical to understanding your rights and obligations when an FPPE is imposed.
Is an FPPE a “restriction of privileges”?
The answer depends on the language of the FPPE document itself.
Some FPPEs simply provide for the retrospective review of a representative number of cases performed over a defined period of time, but do not otherwise limit the physician’s day-to-day practice at the hospital. Others impose limitations or restrictions on the physician’s practice while under review, such as limiting the types of cases that can be handled by the physician, requiring pre-clearance of treatment or procedures, or imposing mandatory assistance or observation requirements in the operating room.
These “restriction” questions require a careful analysis of the language of the actual FPPE document and relevant provisions of the bylaws, among other considerations.
Is an FPPE reportable to the National Practitioner Data Bank?
It can be, but not always. Whether an FPPE is reportable to the National Practitioner Data Bank (NPDB) depends mostly on whether it restricts your clinical privileges and for how long. An FPPE that only reviews a sample of your cases, with no limits on your day-to-day practice, generally isn’t reportable. One that restricts your privileges for more than 30 days, for example by requiring pre-approval of procedures or mandatory proctoring, may be.
The exact wording of the FPPE and the hospital’s bylaws matter a great deal.
Should I resign my privileges to avoid the FPPE?
Sometimes resigning privileges to avoid an FPPE, or during its term, can make things worse by creating a reportable event, such as a resignation while under investigation. Even an FPPE that isn’t reportable on its own, such as one without restrictions, can possibly become a reportable event if you resign during its term under certain circumstances.
Careful consideration of the FPPE terms, the bylaws provisions, and knowledge of the NPDB reporting rules is necessary to evaluate this issue.
Is an FPPE the first step in a process that could lead to the suspension or termination of privileges?
Suspension or termination is one of many possible outcomes of the FPPE process, if the hospital concludes that the review identified a pattern of problematic conduct by the physician. On the other hand, many physicians successfully navigate the FPPE process, satisfy its requirements, and return to good standing having gained back the hospital’s trust.
The outcome of an FPPE can depend, in part, on how physicians react to the situation and conduct themselves during the review process. The outcome should not be predetermined.
Protecting your medical staff privileges during an FPPE
Like most medical staff privilege disputes, an FPPE rarely comes with clear-cut answers, even to simple questions. The outcome usually depends on the specific language of the FPPE, the hospital’s bylaws, applicable law, and the facts of your situation. While an FPPE can be nothing more than a small speed bump in an otherwise unblemished career, it can also be the first step in a more damaging process. How you respond can affect where it leads.
Seeking good legal advice when hit with an FPPE, to understand the rules of the process and your rights and obligations, can be a step in the right direction. If you’ve received an FPPE, consider Weiss Zarett Brofman Sonnenklar & Levy, P.C. at (516) 627-7000 to talk through your options.
David Zarett is a founding member of Weiss Zarett Brofman Sonnenklar & Levy, P.C. For over 25 years, Mr. Zarett has worked with physicians regarding medical staff privileging disputes with hospitals, among other types of matters involving healthcare law.
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