We defend Department of Veterans Affairs (VA) medical professionals in clinical privileges cases. Negative clinical privilege decisions impact the ability of medical professionals to practice at the VA. They can also affect professional reputations and career advancement. Furthermore, clinical privileges are essential in order to provide care to veterans. When clinical privileges are revoked or suspended, VA employees face significant professional and personal challenges. VA medical professionals should retain experienced Veterans Affairs employment lawyers when privileging issues arise.
What are Veterans Affairs Clinical Privileges?
VA clinical privileges are given when a VA facility authorizes a medical provider (licensed independent healthcare practitioners or LIPs) to independently (i.e., without supervision or restriction) provide healthcare services on a facility-specific basis. Only providers who are permitted by state law or Federal law or regulation and the VA medical facility through the Medical Staff Bylaws may be privileged to practice independently. Clinical privileges are based on the individual’s clinical competence as determined by peer references, professional experience, health status, education, training, and licensure. Clinical privileges must be VA medical facility-specific, LIP-specific, and within available VA medical facility resources to support the privileges granted.
Grounds for Reduction or Revocation of Clinical Privileges at the VA
There are many reasons why VA clinical privileges can be lost. The privilege review process is governed by specific VA guidelines. These guidelines protect the medical provider’s rights. Generally, if privileges are being reduced or revoked as an adverse action, the action is being taken based on allegations of substandard care, professional misconduct, or professional incompetence.
VA Privileging Oversight
There are two common ways in which the VA exercises oversight over providers for the purposes of privileging: Focused Professional Practice Evaluations (FPPEs) and Ongoing Professional Practice Evaluations (OPPEs).
Focused Professional Practice Evaluations (FPPE)
An FPPE is an oversight process where the respective clinical service chief and the Executive Committee of the Medical Staff (ECMS) evaluate the competence of a provider. This is done for those who have not yet documented evidence of competently performing the requested privileges at a VA medical facility. FPPEs can also be done for Cause. An FPPE for Cause is a period during which the clinical service chief assesses the provider’s performance. This is to determine if any action should be taken on the provider’s privileges after a clinical concern has been triggered and a FCCR has been conducted. If participating in a FPPE, especially one for Cause, it is important to make sure that VA policies are followed in the process.
The FPPE process may include, but is not limited to, periodic chart review, direct observation, monitoring of diagnostic and treatment techniques, or discussion with other individuals involved in the care of patients. Efforts should be taken to ensure that the medical provider is given a fair and impartial review process.
Ongoing Professional Practice Evaluations (OPPE)
An Ongoing Professional Performance Evaluation (OPPE) is the ongoing monitoring of privileged providers to identify clinical practice issues that impact the quality and safety of care. OPPE applies to all providers who are privileged, including physician assistants, nurse practitioners, and clinical pharmacist practitioners who are on Scopes of Practice.
Responding to a Privileging Action at the VA
If a federal employee at the VA faces a potential or actual loss of clinical privileges, it is essential for them to understand the procedural safeguards in place and their rights to challenge such actions.
1. Initial Notification of Adverse Privileging Action
If the VA proposes to revoke, suspend, or limit a healthcare provider’s clinical privileges, they will be notified in writing. This notification should include the specific reasons for the proposed action, along with any supporting evidence or documentation. The medical provider will receive adequate notice in order to respond to the allegations alleged regarding their performance or conduct.
If the provider responds to the proposed action, the provider’s response is provided to the Facility Director for decision. The Facility Director must make and document a decision on the basis of the record. If the provider disagrees with the Facility Director’s decision, an appeal hearing may be requested. The request for a hearing must be submitted within five workdays after receipt of the decision.
At this stage, a provider may have the opportunity for informal resolution. Informal resolutions with management can address issues before a formal privileging decision is made. If the provider can demonstrate that the concerns are unfounded or can propose corrective actions (such as additional training or peer review), it may be possible to resolve the issue without a formal revocation of privileges.
2. Fair Hearing Panel
If the Facility Director upholds the revocation or reduction of privileges action, the provider may request a Fair Hearing. Once a Fair Hearing is requested by the provider, the Facility Director must appoint a review panel of three professionals within five workdays after receipt of the practitioner’s request for a hearing to conduct a review and hearing. At least two members of the Panel must be members of the same profession. If specialized knowledge is required, at least one member of the Panel must be a member of the same specialty.
The provider will be notified of the time, date, and place of the Fair Haring. Prior to the hearing date, the provider will be offered the opportunity to identify witnesses for the hearing and submit exhibits to be considered during the hearing. During the hearing, the provider has the right to be present for the full proceeding, be represented by legal counsel, and call witnesses.
Upon conclusion of the hearing, within 15 working days, the Panel must complete their review of the case and submit their report to the Facility Director. The Facility Director then has the authority to accept, reject, accept in part, or modify the review panel’s recommendations. The Facility Director must issue a written decision within 10 working days of the date of receiving the Panel’s report. Once the Facility Director makes the final decision to reduce or revoke privileges, this decision can be reported to the National Practitioner Data Bank (NPDB).
3. Appeal of Final Revocation or Reduction Decision
If the Facility Director issues a final decision reducing or revoking the provider’s privileges, the provider may appeal that decision to a final level of review. This final appeal is submitted to the appropriate VISN Director within five workdays of receipt of the facility Director’s decision. This appeal option will not delay the submission of the NPDB report. If the Facility Director’s decision is overturned on appeal, the report to the NPDB must be withdrawn. Once an appeal is filed at this final level, the VISN Director must provide a written decision, based on the record, within 20 work days after receipt of the practitioner’s appeal. The decision of the VISN Director is not subject to further appeal.
Contact Us
Our Veterans Affairs employment lawyers defend medical professionals in privileging cases. We also represent all federal employee medical providers. If you need legal assistance regarding privileging actions or other VA employment matters, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation.
Our lawyers represent employees before the Department of Veterans Affairs (VA) nationwide. We represent VA employees in suspension cases and Disciplinary Review Board (DAB) hearings. The DAB is a unique hearing process and counsel is needed by a physician, nurse or other medical professionals when a disciplinary case like this is pending. This article discusses the DAB process for more serious discipline, as it currently exists.
The DAB process applies to “Title 38” employees, under 38 U.S.C. 7401, which includes physicians, dentists, podiatrists, chiropractors, optometrists, nurses, nurse anesthetists, physicians assistants and expanded function dental auxiliaries. A DAB hearing is available to these types of VA employees when a disciplinary action (major adverse action, e.g. termination or reduction in grade) involves a question of professional conduct or competence. This is distinguished from cases that involve other types of misconduct, not related to professional conduct or competence, such as general misconduct (e.g. alleged theft, use of inappropriate language, AWOL, etc). The DAB processing rules, which are ever-changing, are shown here.
First Step – Proposal for Discipline
Typically, the first step in the process towards a VA DAB hearing is for a medical professional to be proposed for serious discipline. One example might involve a physician charged with gross negligence in conducting a medical procedure on a patient, or perhaps a nurse that has allegedly not performed their duties to the proper standard of care (not providing correct medications to a patient). In such a case, the medical professional will receive a proposed notice of removal, demotion, etc. and will then be given a deadline in which to respond. These deadlines are now very short and usually are set at 7 business days pursuant to statute. The individual can respond to the proposed action through a written response and/or an oral response meeting. We usually recommend both types of responses to clients.
Second Step – Decision on Proposed Discipline
Following the response to the proposal for discipline, a decision by the deciding official will be made. If the decision upholds the proposed discipline, the action will be sustained. The medical professional employee will then have appeal rights which are provided to them in the decision. Next, the medical professional will have a very short period of time in which to file an appeal and request a Disciplinary Appeals Board Hearing. According to some recent changes to statute, an appeal must usually be received within 7 business days. Once the appeal is filed, the process for the appeal will then begin.
Third Step – The VA DAB Pre-Hearing Process
If the request for a Disciplinary Appeals Board (DAB) hearing is accepted by the VA, a 3-person panel of members will be provided. Once the Disciplinary Appeals Board has been impaneled by the VA, a notice will go out to both the Appellant and the Agency’s attorney about the procedures to be observed. The notice will set various deadlines, including witness and motion deadlines. Sometimes, these deadlines can be extended, by motion. The DAB consists of 3 voting members (including a chairman, secretary, and another voting member) and a technical advisor. Often, the Agency attorney and the Appellant’s attorney will interact mostly with the Technical Advisor in the early stages of the case.
During the pre-hearing meeting, arguments over the relevance of witnesses can then be heard by the DAB and other issues about the hearing can be discussed. Shortly thereafter, a ruling by the DAB will be received by the parties and the list of approved witnesses will be finalized. Witnesses employed by the VA can be compelled to attend. Other approved witnesses will have to come voluntarily. In the case where a witness is also a patient, then other procedures may have to be taken in order to ensure that witness can testify under VA regulations. Lawyers for Veterans Affairs employees have to prepare significantly for DAB hearings.
Fourth Step – The DAB Hearing
The DAB is usually held at the closest facility where the employee was assigned. On the day of the hearing (which can last one to multiple days), a hearing room will be assigned. A court reporter will be present and both the Agency counsel and Appellant (and their counsel) will have tables for the hearing. The VA has the burden of proof, by a preponderance of the evidence, and will put on their case first. Both sides will have the opportunity for opening statements. After the Agency finishes calling its witnesses, then the Appellant will have the ability to present their approved witnesses. At the conclusion of testimony and the presentation of exhibits, the parties can then present closing arguments. Following this step, the DAB will discuss the case amongst themselves and then issue a decision.
Next Steps
Following a hearing by the DAB, a decision will usually be given quickly. If any charges are sustained, in whole or part, the DAB can approve the action as is or modify or reduce the action. Following a vote by the members, they will fill out a Form 10-2543. Following a DAB ruling, the Undersecretary for Health may execute the DAB’s decision, unless they find it clearly contrary to the evidence or unlawful. The DAB can order reinstatement, back pay, and other such remedies. Further appeals, if the Appellant loses, can be made through the court process.
Conclusion
When facing disciplinary issues for Veterans Affairs employees it is important to retain counsel. Please contact our office at 703-668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on our Facebook and Twitter pages.
