IN THE CASE OF:	  

		BOARD DATE: 	       30 July 2009

		DOCKET NUMBER:  AR20090005346 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests removal of a 25 February 2008 altered DA Form 5374 (Performance Assessment) from her personnel file.  She further requested the removal of item 14 (Remarks) from the DA Form 5374, dated 2 November 2007.

2.  The applicant states that on or about 3 March 2008, she received a copy of the 25 February 2008 DA Form 5374 that contained no derogatory information.  She further adds that she was never counseled on staff interaction that resulted in several complaints and "clinicians going to other radiologists instead of her" and that her DA Form 67-9 (Officer Evaluation Report) (OER) makes no reference to this derogatory information.

3.  The applicant provides a copy of the unaltered DA Form 5374, dated 25 February 2008, and a copy of the altered DA Form 5374, dated 25 February 2008; a copy of her DA Form 67-9 for the period from 5 November 2007 through 4 March 2008; and a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 4 April 2008, in support of her request.

4.  On 5 June 2009, the applicant submitted an addendum to what she referred to as her "complaint" and stated that based on the fact that a recent investigation revealed that, in addition to the evaluation submitted by Lieutenant Colonel (LTC) A____, another DA Form 5374, written by Colonel (COL) B____, Walter Reed Army Medical Center (WRAMC), has adversely affected her ability to obtain a position.  With this addendum, she submitted a copy of the DA Form 5374, dated 31 October 2007; a copy of a letter, dated 17 July 2008, from the Office of the Inspector General (IG), WRAMC; copies of her DA Forms 67-9 for the periods from 11 May 2007 through 2 November 2007 and 5 November 2007 through 4 March 2008; and a copy of a memorandum, dated 19 May 2008, subject:  Credentialing Board Approval of Provider Credentials File (PCF), issued by the Army Professional Management Command (APMC), Fort McPherson, GA.  She stated that the comments in item 14 from the DA Form 5374, dated 2 November 2007, should be removed because they were unsubstantiated and adversely affected her ability to obtain employment and maintain competency.  She further presented the following argument:

	a.  she has never been shown documentation to substantiate the remarks entered by COL B____ and that an IG investigation failed to prove the documentation was ever generated;

	b.  her OER for the same period does not make any reference to restriction in clinical privileges and that her credentialing was approved by the APMC without any restriction on 19 May 2008;

	c.  the OER from 5 November 2007 through 3 March 2008, a period contemporaneous with the period at WRAMC, makes laudatory remarks in regard to her expertise in neuroradiology; and

	d.  the American Board of Radiology granted her the sub-specialty certificate of added qualification in neuroradiology in November 2008 proving her competency.

5.  On 10 June 2009, the applicant requested her case be expedited as she is a medical doctor with an active current license.  She added that the restrictive comments on her performance assessment are derogatory and unsupported and that these comments have been shown to prospective employers and have adversely affected her ability to obtain a position.  She also added that this has resulted in the loss of income since about May 2008 after having completed a tour of active duty that ended on 4 April 2008.  She further added that a hindrance of gaining additional medical expertise may possibly result in the need for retraining due to forced inactivity as well as pain and suffering due to being without a job at a crucial time of her life.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show she was appointed as a major in the Medical Corps of the U.S. Army Reserve (USAR) on 27 June 1985 and entered active duty on 11 July 1985.  She subsequently served in various staff and leadership positions as a diagnostic radiologist and was promoted to LTC on 17 January 1989.  She was honorably released from active duty on 4 January 1990 and transferred to the USAR Control Group (Individual Mobilization Augmentee (IMA)).  She completed 4 years, 6 months, and 8 days of creditable active service.

2.  The applicant’s records also show she transferred from the USAR Control Group (IMA) to a troop program unit (TPU) on 3 April 1996 and was assigned to the Medical Support Unit, Germany.  She was promoted to COL on 29 September 2000 and was reassigned to the Uniformed Services University of the Health Sciences, Bethesda, MD, and the 2290th U.S. Army Hospital, WRAMC.

3.  On 6 April 2007, the applicant was ordered to active duty as a member of her Reserve Component (RC) unit in support of Operation Enduring Freedom and was assigned to WRAMC from 11 May 2007 to 2 November 2007 and Landstuhl Regional Medical Center (LRMC) from 5 November 2007 to 4 March 2008.  She was honorably released from active duty to the control of her USAR unit on 29 March 2008.

4.  On 31 October 2007, COL B____, the Chief, Department of Radiology, WRAMC, submitted a DA Form 5374 for the applicant’s performance during the period from 11 May 2007 to 31 August 2007 for the purpose of renewal of privileges.  Item 14 of this form shows the following comments:

A peer review audit was performed encompassing 1 week of neuroradiology cases performed by the provider.  Significant discrepancies were identified in 4 of the 53 cases reviewed (7.5 percent).  The provider’s expertise is in pediatric neuroradiology.  The cases evaluated reflect the usual workload performed at the WRAMC, which is predominantly adults and trauma neuroradiology.  If the provider practices outside of her area of expertise, supervision should be provided until such time as performance is deemed acceptable for the case mix at the institution.

5.  On 25 February 2008, LTC A____, Chief, Department of Radiology, LRMC, submitted a DA Form 5374 for the applicant’s performance during the period from 14 November 2007 to 25 February 2008 for the purpose of reassignment/
separation.  He rated the applicant based on her demonstrated clinical performance compared to that which can be reasonably expected of a provider with her educational background, level of training, and expertise and placed an "X" in all areas with the exception of item 15(h) (Cooperation with hospital/clinic personnel) in which he placed an "X" under the "Unacceptable" column and hand-wrote the following comments:

Applicant had some problems with staff interaction which resulted in several complaints and clinicians going to other radiologists instead of her.

6.  The applicant provided a second DA Form 5374, dated 25 February 2008, from LTC A____, Chief, Department of Radiology, LRMC, which contains an "X" in the "Acceptable" column of item 15(h) and contains no comments.

7.  The two DA Forms 5374 are not filed on the applicant’s official military personnel file (OMPF).

8.  Army Regulation 40-68 (Clinical Quality Management (CQM)) prescribes policies, procedures, and responsibilities for the administration of the Clinical Quality Management Program (CQMP).  It includes Department of Defense (DOD) and statutory policies addressing medical services quality management requirements.  This regulation provides the following definitions:

	a.  Centralized Credentials Quality Assurance System (CCQAS) is the DOD database maintained by each military treatment facility (MTF) that assists the credentials manager with control of credentials, managing the credentialing/
privileging processes, reports, letter generation, preparing provider permanent change of station (PCS) paperwork and the inter-facility credentials transfer briefs.  Information is available to managers at all levels for generating DOD and other reports, personnel management, and for planning purposes.

	b.  Privilege (clinical) is the permission to provide specified medical and other beneficiary health care services in the granting institution within defined limits based on the individual’s education, professional license, experience, competence, ability, health, and judgment.

	c.  Professional review process is the process by which providers/personnel of a like or similar discipline conduct an investigation and peer review to evaluate the quality of patient care of another health care provider/professional. Recommendations are subsequently made to the commander regarding adverse privileging action or limitation of practice.  The credentials committee/function is involved in the evaluation of the privileged provider; a designated peer review panel evaluates the nonprivileged health care professional.

	d.  PCF is a file containing a variety of professional credentialing and privileging documents that substantiate the provider’s licensure, education, training, experience, current competence, health status, and medical practice reviews.  Information related to provider performance, permanent adverse privileging actions, and malpractice cases is contained in the file.  It is maintained in a secure manner and is protected from disclosure by Title 10, U.S. Code, section 1102 (10 USC 1102).

	e.  Provider Activity File (PAF) is a file containing temporary provider-specific information and performance data used to support the privilege renewal process. It contains risk management data to include pending adverse privileging/practice action information and potential data pending resolution.  It is an extension of the PCF and contains active quality assurance (QA) documents protected from disclosure by 10 USC 1102.
	
9.  The National Defense Authorization Act for Fiscal Year 1987 (Public 
Law 99-661), as contained in 10 USC 1102, provides that records created by or for the DOD in a medical or dental QA program are confidential and privileged.  This law precludes disclosure of, or testimony about, any QA records or findings, recommendations, evaluations, opinions, or actions taken as part of a QA program except in limited situations.  Further guidance is provided in DOD Directive 6025.13-R.  The statutory privilege addressed in these documents is designed to improve the quality of medical/dental care by encouraging thorough and candid QA evaluation, review, and reporting processes.

10.  A "medical QA program" is defined in 10 USC 1102 as "all activities carried out before, on, or after 14 November 1986 by or for the DOD to assess the quality of medical care."  The statute specifically includes any activity designed to assess the quality of medical care by individuals; MTF/dental treatment facility committees or other review bodies responsible for QA, credentials, infection control, patient care assessment outcomes (including treatment procedures, blood, drugs, and therapeutics); medical/dental records; health resource management review; and identification and prevention of medical/dental incidents and risks.

11.  A "medical QA record" is defined in 10 USC 1102 as "the proceedings, records, minutes, and reports that emanate from QA program activities and are produced or compiled by the DOD as part of a medical QA program" (now considered a subset of the CQMP).  QA records do not lose their protected status because they are included as part of other records or reports.  For example, when QA records are included as part of IG, U. S. Army Criminal Investigation Command (USACIDC, also known as CID), or other reports, the QA records will not be released under the Freedom of Information Act or other formal request for information except as specifically outlined in this regulation.  QA records will be removed from the report(s) when IG, CID, or other reports are released if disclosure of said QA records is not authorized.  The investigation record(s) or report(s) will be annotated that QA contents have been removed pursuant to 10 USC 1102.
12.  A PCF will be established for all privileged providers per paragraph 
8-3b(2)(a) of Army Regulation 40-68.  Either paper or electronic files may be maintained.  Any request by the subject privileged provider for amendment of information contained in the PCF must be considered under the provisions of the Privacy Act and Army Regulation 340-21 (The Army Privacy Program).  The PCF will be maintained for the entire service career of the military provider to include active and inactive service in the RC.  For civilians (general schedule (GS) and contract), the PCF will be maintained for the entire period of employment with the Federal government.  For the various categories of U.S. Army Medical Department providers, the responsibility for PCF maintenance is as follows:

	a.  For Active Army (AA) military and civilian (GS and contract), the credentials office of the MTF who exercises command or executive authority over the provider is responsible for the PCF.  For AA privileged providers attending nonclinical postgraduate or specialty training, advanced military training, or changing duty stations to a nonclinical assignment, the PCF will be forwarded to Commander, U.S. Army Medical Command (MEDCOM), Fort Sam Houston, TX.

	b.  For Army National Guard (ARNG), the respective State Adjutant General or the ARNG State Surgeon who is the Adjutant General’s designee for CQM will be responsible.

	c.  For USAR TPU privileged providers, the Army Reserve Clinical Credentials Activity is responsible.  Duplicate files will not be maintained by the unit of assignment/attachment.

	d.  For Individual Ready Reserve (IRR) members and retired providers (USAR/ARNG, retired and discharged/separated AA), the U.S. Army Human Resources Command (HRC) is responsible.

	e.  For IMAs, the credentials office of the facility to which the provider is assigned is responsible.

13.  The PCF transfer from facility-to-facility will be by certified mail, return receipt requested.  For AA providers who have separated in good standing with defined privileges, the original PCF will be forwarded immediately to Commander, HRC, St. Louis, MO.  A copy of the order of separation, discharge, or assignment to the IRR will be included with the PCF.  A copy of the PCF and a copy of the separation order will be held at the MTF for 1 year and then destroyed.  Upon discharge or retirement from the Army, the PCF (all military providers) will be forwarded to HRC Quality Management Directorate for maintenance.  For those AA providers transferring to the RC, the entire PCF will be forwarded to the unit of assignment/attachment or to Commander, HRC, St. Louis, MO, for forwarding to the TPU of assignment.  Disposition of the PCF after the provider ends his/her military service (separates, is discharged, or retires) will be according to Army Regulation 25-400-2 (The Army Records Information Management Systems).  HRC will store in a retired status the PCFs of all retired privileged providers as stipulated in Army Regulation 25-400-2.  Pertinent data from the PCFs of all retired privileged providers will be entered into the CCQAS database; the PCFs are then catalogued and stored according to established tracking procedures.  Retirees in MEDCOM-designated critically short areas of concentration will have their PCFs maintained by HRC for a period as specified in MEDCOM guidance.  The PCFs of privileged providers separating from the military will be entered into the CCQAS database, identified by a tracking number, and forwarded to the designated QM holding area at HRC.  The PCFs and credentials data of privileged providers discharged from active duty roles and transferred to the IRR will be maintained by HRC until these individuals retire or separate from the IRR. 
The PCF of civilian providers (GS and contract) will be retained for 5 years by the last MTF of employment and then destroyed.  At the time of provider discharge or separation, a copy of both the PCF and the PAF that contain any permanent adverse privileging actions or information will be forwarded directly to Commander, MEDCOM, Fort Sam Houston, TX.  When the provider PCSs, separates, or retires from the Service, an updated copy of DA Form 5374 and DA Form 5441 (Evaluation of Clinical Privileges - Anesthesia) will be included in the PCF prior to the file being forwarded, as indicated above.

14.  Chapter 5 provides for competency assessment.  It states, in pertinent part, that competency assessment is required of all members of the staff and is demonstrated by one’s performance in a designated setting.  Performance must meet established standards that are determined, in part, by the work setting and the employee’s designated role in that setting.  Thus, the leaders of an organization must have clearly defined the qualifications and competencies that staff must possess to accomplish the organization’s mission.  Immediate supervisors (officer, enlisted, civilian) are responsible for assessing, maintaining, and improving staff competency through an ongoing series of activities.

15.  The performance of all health care personnel is supervised, indirectly or directly, and evaluated according to established Army regulations and Office of Personnel Management guidance.  Specific requirements related to individuals requiring direct supervision will be locally determined based on the unique circumstances necessitating this level of supervision and can be indirect (supervisor performs retrospective review of selected records and/or observes the results of the care provided.  Criteria used for this review relate to quality of care, quality of documentation, and the staff member’s authorized scope of practice) or direct (during the delivery of health care and services, the supervisor is involved in the decision-making process, which may be verbal such as when the supervisor is contacted by telephone or by informal consultation before the supervised individual implements or changes a regimen or plan of care or physical presence such as when the supervisor is physically present through all or a portion of care).

16.  The intent of providing appropriate oversight of practice, in the context of this regulation, is to evaluate and enhance performance of health care personnel in delivering patient care services.  Given that objective, a planned and organized approach to supervision is appropriate.  The written plan of supervision maintained in the PAF (privilege-eligible provider) or CAF (nonprivileged professional), as appropriate, will include the type of supervision to be provided based upon the assessed needs of individually privileged providers/nonprivileged personnel, the name of the appointed supervisor, and the performance evaluation or specific intervals at which performance evaluations will be conducted during the period of supervision will be noted.  Supervisors of privileged providers will complete periodic clinical performance evaluations based on the individual’s experience and competency utilizing DA Form 5441 and DA Form 5374.  These are filed initially in the PAF and transferred to the PCF at the time of clinical privileges renewal, PCS, or release from service/employment. A variety of parameters allow for review of the appropriateness of care and the privileged provider’s current competence.  Organizations must consider and integrate current TRICARE and other managed care performance assessment variables/outcomes into the plan for supervision and the evaluation of privileged provider performance.  These address such factors as diagnostic techniques and procedures and associated costs, therapeutic practice patterns and outcomes of care, consultation and referral patterns, availability and productivity, and documentation of patient care and services.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the altered DA Form 5374, dated 25 February 2008, and the second DA Form 5374, dated 31 October 2007, should be removed from her personnel file.

2.  There are no DA Forms 5374 filed in the applicant's personnel files (OMPF and/or military personnel records jacket).  These forms are filed in the provider's PCF.

3.  The evidence of record shows that the applicant was ordered to active duty in April 2007 and was initially assigned to WRAMC from May 2007 to November 2007.  As required by the governing regulation, her supervisor conducted a periodic clinical performance evaluation based on his experience and competency utilizing the DA Form 5374 (Performance Assessment).  There is no evidence, and the applicant has provided none, to show that her supervisor did not comply with the regulatory requirements of assessing her in a fair and unbiased manner.

4.  The applicant was then reassigned to LRMC from November 2007 to February 2008.  Again, as required by the governing regulation, her supervisor conducted a periodic clinical performance evaluation due to the applicant's reassignment and/or separation utilizing the DA Form 5374.  It is unclear why her supervisor submitted two forms for the same evaluation period and it is equally unclear which form is filed in her PCF.  Nevertheless, again, there is no evidence, and the applicant has provided none, to show that her supervisor did not comply with the regulatory requirements of assessing her in a fair and unbiased manner.

5.  In order to support removal of the contested DA Forms 5374 there must be evidence that establishes clearly and convincingly that this presumption of regularity should not be applied and that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature.  The applicant’s arguments provided in this case address her dissatisfaction with the assessment and the impact the contested forms may have had on her potential employment, but fail to show any material error, inaccuracy, or injustice related to the assessments at the time they were rendered.

6.  The ABCMR does not correct records solely for the purpose of establishing eligibility for programs or benefits.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  Therefore, she is not entitled to relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ___X_____  ___X_____  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   X______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090005346



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ABCMR Record of Proceedings (cont)                                         AR20090005346



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