Whether the Health Care Quality Improvement Act of 1986 (HCQIA) and its mandated adverse 'professional review actions' (Adverse Action Reports (AARs)) from private hospitals violate due process rights of physicians under the Fifth Amendment

QUESTIONS PRESENTED This is the first case in 37 years since enactment of the Health Care Quality Improvement Act of 1986 (HCQIA) (42 U.S.C. §§11101-11152) to reach this Court for necessary constitutional review of the HCQIA and its mandated adverse “professional review actions” (Adverse Action Reports (AARs)) from private hospitals. These AAR’s are filed and then released to would-be hospital employers, which by law must “query” the HCQIA’s “databank” (NPDB) before hiring a licensed There are currently over 4-million doctors and nurses, and upwards of 21-million subject to the HCQIA. Respondents, the U.S. Department of Health & Human Services Agency (HHS) and its corespondent division, the National Practitioner Data Bank (NPDB), have implemented the HCQIA by regulations and sub-regulatory guidance (“NPDB Guidebook”). The law and HHS regulations as enacted and applied do not require either the hospital reporting an AAR or HHS to provide physicians under review with any due process. This lack of due process at multiple levels has resulted in over-inclusive AAR reporting of skilled and competent doctors onto the NPBD, which unconstitutionally prevents them from further practice of their lawful profession. The effect of an AAR released by Respondents against a physician is a “career-ender” because it broadly precludes re-employment anywhere in the United States due to hospitals nationwide having adopted policies not to hire physicians with an AAR. The District Court below acknowledged that effect. Petitioner is a graduate of Harvard Medical School and holds degrees of A.B., M.D. and Ph.D. and is a Board-certified surgeon. Prior to the events giving rise ii to this case, in over 11 years as a physician, Petitioner had never had any disciplinary actions against him in over 2,500 surgical cases, and in his career, had never suffered a medical malpractice judgment or payment on his behalf. Petitioner was the victim of a false and fraudulent private hospital AAR report to the NPDB databank, without his knowledge. The AAR was for “voluntary surrender of clinical privileges” “while under, or to avoid, investigation” after the hospital told him there was no investigation. Contrary to the AAR, the NYS Dept. of Health concluded Petitioner’s reported case had no deviations from the standard of care. Petitioner sought HHS “Secretarial Review” of the AAR. Under the self-limiting regulations, and without any due process, the Secretary concluded that the AAR should be maintained, explaining: “The Secretary cannot conduct an independent review of the surrender or resignation, inquire whether an investigation was warranted, whether a_ professional review action would have been taken if the investigation had been completed, whether the ‘due process’ provided or to be provided by the reporting entity was adequate, or substitute his judgment for that of the entity.” (Secretarial Decision,