Not every type of discipline in a medical setting is reportable to the Medical Board. There is a fine line between purely employment-related disputes and discipline-related to medical care. In another blog, we will discuss how the “disruptive physician” scenario may or may not be reportable and how both the law defines a “disruptive physician” and how the AMA views this very contentious issue. In general, here is the law on medical board reporting.
Understanding the 805 Report
Disciplinary conduct is reported to the Medical Board using an 805. An 805 report is a mandatory report that must be filed under specific circumstances involving a healthcare professional's staff privileges, membership, or employment. The term "805" refers to Business & Professions Code section 805, which mandates this reporting.
When is an 805 Report Required?
An 805 report is required when medical discipline results in:
- Denial or Rejection of Application for Staff Privileges: If a healthcare professional's application for staff privileges is denied or rejected due to medical disciplinary reasons.
- Termination or Revocation of Membership: If a healthcare professional's membership is terminated or revoked for medical disciplinary reasons.
- Denial or Rejection of Application for Membership: If a healthcare professional's application for membership is denied or rejected due to medical disciplinary reasons.
- Termination or Revocation of Employment: If employment is terminated or revoked for medical or job performance-related reasons.
- Termination or Revocation of Staff Privileges: If staff privileges are terminated or revoked for medical disciplinary reasons.
Reporting Restrictions
If medical discipline imposes restrictions for 30 days or more within any 12-month period, an 805 report is required. This applies even if the doctor agrees to the restrictions. Examples include:
- Restrictions on Staff Privileges: Any limitations imposed on staff privileges. Restrictions on Membership: Any limitations imposed on membership.
- Restrictions on Employment: Any limitations imposed on employment, which are closely related to privilege restrictions.
- Less hours, changes in shifts, less complicated cases, and even proctoring may qualify as restrictions.
Emergency Actions
If the discipline is due to an emergency action, any of the above limitations for 14 days or more are reportable.
Pending Investigations
If a healthcare professional resigns, takes a leave of absence, surrenders privileges, withdraws, or abandons a request for privileges or renewal of privileges after receiving notice of a pending investigation, an 805 report is triggered and must be filed.
FPPEs and PIPs
Focused Professional Practice Evaluation (FPPE): Mandated by the Joint Commission, FPPEs are required for new privileges and are used when a doctor lacks documented evidence of competence. If an FPPE proceeds with no restrictions or adjustments related to patient safety, it may not be reportable. However, if it requires a proctor or a temporary suspension of certain privileges pending review, it may be 805 reportable.
Performance Improvement Plan (PIP)
PIPs are often used as a tool for compliance. Non-compliance with all aspects of the PIP usually results in termination of privileges and reporting.
Can a Frivolous Claim be Stopped
Often physicians will tell us that the investigation that triggered the 805 report was frivolous or retaliatory. They want justice and ask if the Medical Board can be prevented from investigating an obviously false claim. This issue was discussed by the California Supreme Court in Brovelli v. Superior Court (1961) 56 Cal.2d 524 The Court gave the Board very extreme powers saying that the Board “can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.” You can still tell the Board that the complaint was a sham but even if that is true it does not deprive the Board of authority to conduct is own investigation.
The Board operates on different levels and it is useful to intervene early to point out just how retaliatory and unfounded a complaint is. Investigators often make quick decisions and preconceptions affect perception going forward. In other words, early intervention is useful.
Daniel Horowitz and his physician advocacy group are the premier medical lawyers in California. If you are under investigation or facing peer review, we can help. Contact us today.