HCQIA: The Federal Law Allowing Hospitals to Target Good Physicians and How to Reform It
Updated
By now, much of the public knows, or should know, not to step foot into a hospital without a trusted loved one or a patient advocate by their side. Many have heard the horror stories of hospitals holding people against their will, attempting to take children from parents for not consenting to treatments, or physicians simply acting counter to a patient’s consent.
Thanks in large part to the MAHA spirit, public efforts, and policy changes, a magnifying glass has begun to examine the inner workings of our American medical and public health systems. Key to this investigation is the need to heavily scrutinize corporate hospital entities and their secretive inner workings, and that starts with HCQIA.
The Health Care Quality Improvement Act (HCQIA) was implemented in 1986 in response to the need to improve key areas of healthcare. At that time, medical malpractice was on the rise. There was also a national need to incentivize physicians to engage in effective peer review to address unprofessional behavior.
The idea was sound…nearly 40 years ago. Other medical professionals would serve as watchdogs, policing the behavior of their profession within hospitals. To do so, it was agreed upon and codified into HCQIA’s law that the physicians and hospitals needed protection from legal retribution while taking action to review those among them who were failing to uphold quality medical care and increase patient safety.
America wanted better, and HCQIA was their vehicle to accomplish it…in 1986.
Unfortunately, the act lacked balance in key areas and was increasingly exploited as hospitals shifted to for-profit corporate conglomerates.
As the guardians of healthcare in this country, physicians were replaced by hospital administrators. And community-based hospitals were turned into corporate entities with financial officers and responsibilities to their shareholders.
Since 1986, consolidations through mergers and acquisitions have led to a market dominated by a few large corporate health players.
Becker’s Hospital Review ranks Kaiser Permanente’s health system at $115.8 billion in annual revenue in 2024 – number one on a list of 65 such American health system empires together accounting for nearly $800 billion in annual revenue.
A die was cast, and a paradigm descended upon American healthcare, which still exerts its suffocating power to this day. The legal cover that allows it is HCQIA.
Secret tribunals, lack of due process, civil rights violations, false accusations, and ultimately lack of patient safety all freely live and breathe thanks to the act’s loopholes, which are exploited by corporate hospitals.
How do good physicians become targeted using an Act that was written to uphold medical care and patient safety?
HCQIA created the National Practitioner Data Bank (NPDB), which reports substandard physician practice or unprofessional conduct. This database has been weaponized against good physicians.
Once a hospital opens a case against a physician, even without their knowledge, their name is added to this database, which all but guarantees they will never be hired again. Besides malpractice, a separate category was added: a ‘disruptive physician,’ a purposely nebulous label that leaves medicine behind and lands in quasi-human resources territory.
Would a hospital purposely investigate or punish a good physician?
An American College of Emergency Physicians (ACEP) publication noted:
“The recent standard promulgated by The Joint Commission regarding hospitals’ responsibility in addressing ‘Disruptive Behavior’ is purposely broadly drawn, general, vague and subjective which could allow hospital administrators to interpret it however they wish.
This standard has the potential to lead to the abuse of ‘Disruptive Physician’ charges. The concern in the physician community and registered by ACEP is that ‘disruptive physician’ can be an [sic] easily manipulated to include a physician who properly defends patient care, exercises his/her right of free speech on political matters, seeks to improve various clinical practices, or who properly demands adherence to excellence.”
ACEP continues by saying
“Some hospitals have learned that if they simply appear to follow the HCQIA ‘procedural cookbook,’ they can eliminate virtually any physician in the absence of any meaningful substantive due process.”
Steve Twedt, a Pulitzer Prize-winning journalist, wrote a landmark series of articles titled The Cost of Courage: How the tables turn on doctors which outlined many cases of ‘sham peer review’ freely allowed by HCQIA.
An accompanying editorial wrote:
“For many years, a fundamental principle for physicians has been popularly understood as: ‘First, do no harm.’ These words are not in the ancient Hippocratic Oath, but they have been handed down as a rough but sensible synopsis. As it happens, fealty to the original wording is pointless, because across the nation some hospitals have reworked this noble idea. Too often for physicians who see harm being done, the operating principle is today: ‘First, make no waves.’”
“The first order of business should be to revisit the Health Care Quality Improvement Act of 1986. Passed with the best intentions, it gave too much discretion and protection to hospital-based review panels which have too often demonstrated a tendency to shoot the physician messenger of bad tidings. Anyone who doubts this should reread the exhaustive documentation of cases cited in the ‘Cost of Courage.’”
Hospitals caring about their bottom lines would presumably frown upon patients who’d rather not submit to rounds of chemotherapy, for parents who’d rather not have their children fully vaccinated, or to hospital consumers/patients who reject taking psychiatric drugs.
For the physicians who are truly patient advocates, an ever-present shadow of faceless hospital reviewers is allowed to confidentially open a case on them with the threat of cancelling their career.
As HCQIA is written presently, those reviewers enjoy immunity from recourse, secrecy to operate, and privilege to the degree that hospitals can even withhold peer review documents from a court subpoena.
Patricia Robitaille is an emergency medicine physician with extensive experience in credentialing and peer review.
Currently, she is working with Dr. Coleen Rickabaugh, M.D., to advance draft legislation that would significantly revise HCQIA. Below is Dr. Robitaille’s proposal to HHS and Washington lawmakers to revise HCQIA.
