IN THE CASE OF:	   

		BOARD DATE:	  3 September 2014

		DOCKET NUMBER:  AR20140001066 


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 reconsideration of her earlier request for correction of her records as follows: 

	a.  verification that her Provider Credentials File (PCF) and all records correctly reflect her active duty voluntary discharge in accordance with (IAW) Army Regulation (AR) 600-8-24 (Officer Transfers and Discharges), paragraph  2-7, and U.S. Army Reserve (USAR) unqualified resignation IAW AR 135-175 (Separation of Officers), paragraph 6-10(a)(1); 

	b.  removal and destruction of all documents associated with unfounded abeyance, unsubstantiated "summary" suspension and restriction of clinical privileges actions, voided Army Reserve involuntary separation hearing, and replaced initial adverse suspension of clinical privileges, National Practitioner Data Bank (NPDB) Report, dated 23 March 2009; and

	c.  void the "corrected" adverse suspension of clinical privileges, NPDB Report, dated 25 April 2012.

2.  As a new issue, she requests referral to The Office of The Surgeon General (OTSG) to fulfill Ireland Army Community Hospital (IRACH) commander automatic endorsed appeal action, dated 24 September 2010, IAW AR 40-68 (Clinical Quality Management), paragraph 10-10b, if the Board is unable to complete requests due to procedures established by the Secretary of the Army.  


3.  The applicant states:

   a.  The Data Bank Guide for Reporting Clinical Privileges Actions, dated May 2013, provides an organization justification to void an NPDB report when it is determined that either (only one reason is required):  Action is not reportable; or the report was erroneously submitted and/or action taken should be reversed or overturned. 

   b.  Adverse suspension of clinical privilege action should be reversed or overturned and the report should be voided because reasonable effort to obtain or take into consideration the facts did not occur prior to clinical privileging and her withdrawal of clinical privileges was not a reportable action as facts reveal in reconsideration. 

   c.  Adverse suspension of clinical privilege, action should be reversed or overturned and the report should be voided because fairness and due process requirements were not met and the report was erroneously submitted by the U.S. Army Medical Command (USMEDCOM) Quality Management Division (QMD) Chief Lou------ as facts reveal in reconsideration.

4.  The applicant provides multiple documents.  Previously-submitted or reviewed documents are marked with a "P" and new documents are marked with an "N." 

* (N) Data Bank Guide for Reporting Clinical Privileges Actions and Charts
* (P) DA Form 71 (Oath of Office - Military Personnel)
* (P) DA Form 4572-R (Statement of Understanding for Appointment as a Commissioned Officer)
* (P) Recommendation for USAR Appointment
* (P) DA Form 5074-1 (Record of Award of Entry Grade Credit (Health Services Officers))
* (P) Orders C-05-508183 (appointment)
* (P) Orders 05-161-00026, 05-306-00183, 05-306-00090, and
06-276-00087 (attachments or release from attachment)
* (N) Welcome letter
* (P) Appointment memorandum
* Affiliation Certificate
* (P) Orders T-01-600087 (orders to active duty)
* (P) Army Medical Department (AMEDD) Officer Basic (Reserve Component (RC)) Course
* (P) Orders 012065 (annual training)
* (P) Orders 06-276-0088, 06-324-00078, and 07-011-00008 (reassignment)
* (P) Orders T-12-615864A01 (amendment)
* (P) Orders T-12-615864 (active duty for training)
* (P) Army Reserve Personnel Command Form 155-R (Promotion Qualification Statement)
* (P) Orders B-03-701822 (promotion)
* (P) Retirement information printout
* (N) Army versus Civilian Physical Therapy Skills and Knowledge publications
* (P) Army Physical Therapy Scope of Practice
* (P) DA Form 67-9 (Officer Evaluation Report) for the rating period 20061004 through 20071003
* (P) Orders 07-190-00006, 07-190-00007, and 214-0004
* DA Form 4691 (Initial Application for Clinical Privileges and Staff Appointment)
* (P) DA Form 5440-21 (Declination of Clinical Privileges - Physical Therapy)
* (P) DA Form 5440A (Approval of Clinical Privileges/Staff Appointment)
* (P) DA Form 5754 (Malpractice History and Clinical Privileges Questionnaire)
* (N) Résumé
* (P) Consent and Release from Liability
* (P) USAR Form 141-R (Test) (Interfacility Credentials Transfer Brief (ICTB) Form)
* (P) DA Form 5441-21 (Evaluation of Clinical Privileges - Physical Therapy)
* (P) DA Form 5374 (Performance Assessment)
* (P) Email exchange titled "Superiors' Responses"
* (P) Two Notifications of Abeyance of Clinical Privileges/Practice
* (P) DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Command's response to her emails and request for redress under Article 138
* (P) Notification of Involuntary Separation Hearing
* (P) Request for Show Cause Action [Applicant]
* (P) DA Form 4856 (Developmental Counseling Form)
* (P) Ad Hoc credentialing committee meeting
* (P) Investigation Pertaining to [Applicant] as a Physical Therapist 
* (P) Notification of Abeyance of Clinical Privileges [Applicant]
* (P) DA Form 2499 (Health Care Practitioner Action Report)
* (P) Email exchange titled "Biased and partial Ad Hoc Credentials Committee Participants and Statements"
* (P) Second DA Form 2499 and Notification of Final DD Form 2499 regarding Clinical privileges [Applicant], Physical Therapist
* (P) DD Form 215 (Correction to DD Form 214)
* (P) Letter from the Director, Health Policy and Services, Office of TSG (OTSG)
* (P) Congressional correspondence from the Department of the Army Office of the Inspector General (DAIG)
* (N) Internet printout titled "Adverse Privileging Actions in the Army Medical Department"
* (N) Corrected Adverse NPDB Report, dated 14 May 2012 and NPDB Secretary Reconsideration Request, dated 27 August 2012
* (N) Summary Suspension and Suspension slides
* (N) Document titled "Effect of Command's actions"
* (N) Texas State Physical Therapy Board

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120005119, on 8 January 2013. 

2.  The applicant does not meet the two-tiered criteria for a request for reconsideration in that her request was not submitted within 1 year of the original Board's decision.  The original Board's decision was made on 8 January 2013.  Her request for reconsideration is dated 3 January 2014 but it was not received by the Board until 9 January 2014.  Additionally, her request for reconsideration contains multiple new documents, marked with the letter "N" as indicated above, that were not previously considered by the Board.  Therefore, as a one-time exception to policy, her request will be reconsidered by the Board.

3.  As a matter of clarity, the following definitions are made (from AR 40-68): 

	a.  The NPDB or "the Data Bank," is a confidential information clearinghouse created by Congress with the primary goals of improving health care quality, protecting the public, and reducing health care fraud and abuse in the U.S.

	b.  Action taken on the part of the commander against a provider's privileges (professional's scope of practice) may be warranted based on performance suspected or deemed not to be in the best interest of quality patient care.  These actions include holding in abeyance, denying, suspending, restricting, reducing, or revoking clinical privileges/practice.  The action taken may be immediate (summary) in the event of a critical incident or as a result of the credential committee's deliberation (routine) on information made available through Clinical Quality Management (CQM) reporting channels.

	c.  An abeyance is not an adverse privileging/practice action.  However, the individual is formally placed "on notice" that scrutiny of his/her practice has begun which may result in an adverse privileging action or other administrative action.  The commander, Deputy Commander for Clinical Service (DCCS), or department chief may take this action against a provider/professional.  An abeyance action is taken by the appropriate authority when an evaluation of performance appears warranted, but information is insufficient to suspend privileges/practice or the potential hazard to patients or patient care is not well defined.  In any case, prudence dictates that the individual not be permitted to render patient care.  During the period of abeyance the provider is assigned to nonclinical duties until the investigation is complete.  The DD Form 2499 will be initiated and forwarded (for informational purposes only) to the U.S. Army Medical Command (MEDCOM) QMD, with a copy furnished to other higher headquarters, as appropriate.  

	d.  An abeyance is valid for 15 calendar days and may be extended by the commander, if required, provided the total period of abeyance does not exceed 30 calendar days.  On the 31st day, if the abeyance is not closed, the action automatically becomes a summary suspension of clinical privileges/practice.  This is a temporary action.  Once the case is closed, all documentation associated with an unfounded abeyance action will be destroyed.  

	e.  An abeyance that is not resolved when the individual terminates his/her relationship with the Military Treatment Facility (MTF) (that is, resigns his/her position or is released from active duty) automatically becomes a suspension of privileges.  This is considered a final action and the suspension of the provider's privileges/practice will be reported as outlined in chapter 14.

4.  The applicant received a Master of Science in Physical Therapy from the University of Osteopathic Medicine and Health Sciences in May 1997.  She was licensed to practice in September 1997.  

5.  She was appointed as a Reserve commissioned officer of the Army, Medical Specialist Corps, and executed an oath of office on 17 November 2005.  Her area of concentration was 65B (Physical Therapy).  She completed the AMEDD Officer Basic (RC) Course at Fort Sam Houston, TX from 23 January to 3 February 2006.  She was promoted to captain on 11 January 2007.

6.  On 9 July 2007, Headquarters, 332nd Medical Brigade, Nashville, TN, published Orders 07-190-00006 ordering her to active duty for a period of 353 days as a member of her Reserve unit, the 5501st U.S. Army Hospital (USAH), San Antonio, TX, a troop program unit (TPU) of the Army Reserve MEDCOM (AR-MEDCOM).  The orders, as later amended, show she was to report to her unit on 23 July 2007 and report to Fort Knox, KY, on 26 July 2007.  

7.  On 26 July 2007, she entered active duty.  On 2 August 2007, Headquarters, U.S. Army Armor Center, Fort Knox, KY, published Orders 214-004 reassigning her to the U.S. Army Medical Department (MEDDAC), Fort Knox, for the purpose of mobilization. 

8.  On 1 August 2007, she submitted a DA Form 4691 (Initial Application for Clinical Privileges and Staff Appointment).  She attested she was clinically competent to fully perform the clinical privileges for which she was applying - physical therapy.  She also completed a DA Form 5440-21 (Delineation of Clinical Privileges - Physical Therapy) wherein she marked the appropriate provider codes for each requested category and/or individual privilege.  For Category II, she requested several privileges with required supervision and indicated she did not want to be approved for two privileges (electroneuromyographic testing and early intervention for high-risk infants) due to insufficient expertise.  

9.  On 6 August 2007, a Credentials Transfer Brief (Reserve/Guard) prepared for the Commander, IRACH, Fort Knox, verified her education and licenses and that there was no adverse information available in the NPDB.  It was also verified that she was known to be clinically competent to practice the full scope of privileges granted at IRACH.  

10.  On 8 August 2007, The Executive Committee for the Medical/Dental Staff at IRACH reviewed the applicant's request for privileges and medical staff appointment.  The committee recommended she be granted privileges under enhanced supervision.   

11.  On 8 August 2007, a DA Form 5440A (Approval of Clinical Privileges/Staff Appointment) shows the Commander, MEDDAC, Fort Knox, approved her request for privileges "under enhanced supervision."

12.  On 13 September 2007, by email, she contacted Colonel (COL) Ha----d, the Individual Mobilization Augmentee/USAR Chief, Physical Therapy Section, OTSG.  She had questions regarding her privileges.  She stated, in effect, she was uncomfortable with the expanded skill set expected in the practice of military physical therapy and she would not have requested a direct commission had she been aware of the expanded skill set.

13.  On 14 September 2007, by email, COL Ha----d responded and he described the expanded skill set expected of Army physical therapists and stated he found her situation "intriguing and frustrating, since it seems as though she was actually wanting to limit her ability to practice to the expanded standard needed in the Army."  He noted that failure to train and practice to the expected Army physical therapy standard could adversely impact her performance ratings and would negatively impact the ability of the Army to use her in some duty positions without having to provide supervision.  He stated if her concerns were a matter of needing further training, experience, or supervision, he was confident that could be arranged.

14.  On 15 September 2007, she responded to COL Ha----d and stated, "I am feeling way out of my league starting to practice at [category] I with close to a full load at [Fort] Knox already."  She stated she felt limited in her ability to practice in outpatient/sports medicine and realized she "should have requested supervisory for [category] I versus fully competent to perform."  

15.  On 20 September 2007, she contacted her career management officer (CMO) on the suggestion of COL Ha----d.  The CMO noted the applicant was "mobilized and having difficulties with the position she is in and her experience."  The CMO noted the applicant had been told to contact her regarding an "admin core" placement.  The CMO informed her "the only area in AMEDD that would fall under 'admin' is [Medical Service Corps] and that she would have to reapply for appointment to that branch."

16.  On 26 September 2007, she had a follow-up appointment with a physician for increased pain in her back and neck.  The physician diagnosed a backache and prescribed Tylenol. 

17.  On 2 October 2007, she was seen at the IRACH Psychology Clinic with a chief complaint of difficulty adjusting to mobilizing and working in a military environment.  The examining psychologist diagnosed adjustment disorder with depressed mood and released her from the appointment without limitations and with follow up as needed. 

18.  On 3 October 2007, by letter sent to the DCCS, IRACH, the applicant stated "due to my current medical status and inability to adhere to the military physical therapy practices, I would like to have my military physical therapy privileges revoked."  

19.  On 10 October 2007, the DCCS brought her to the IRACH Psychology Clinic "due to increased crying and her inability to work in a different area in the hospital."  She was diagnosed with adjustment disorder with anxiety and depressed mood and released without limitations.  The records show she was seen again for the same diagnosis on 15 October 2007 and released without limitations.

20.  On 10 October 2007, an Ad Hoc Credential Committee Meeting was called for the purpose of reviewing, evaluating, and recommending privileging action for healthcare providers at IRACH.  The Committee concluded that a pattern of substandard care exists as the applicant refuses to function within her assigned delineated privileges.  She has voiced that she does not wish to practice as a physical therapist within her assigned area of concentration and she has requested her privileges be revoked.  The Committee unanimously (5 out 5) recommended her privileges be placed in abeyance for 15 days, pending a Clinical Quality Management (CQM) quality assurance (QA) investigation.  The DCCS/Chairman of the Credentials Committee and the Commander, MEDDAC approved the recommendation.   

21.  On 18 October 2007, by memorandum, subject: Notification of Abeyance of Clinical Privileges/Practice, from the Commander, MEDDAC, Fort Knox, the applicant was notified that, effective immediately, all of her clinical privileges/practice as a physical therapist at IRACH had been placed in abeyance.  She acknowledged receipt of the memorandum on 25 October 2007. 

	a.  The memorandum stated the reasons for the abeyance were a pattern of substandard care which included her refusal to practice within her assigned privileges in physical therapy and her request to have her military physical therapy privileges revoked due to her medical status and inability to adhere to military physical therapy practices.  

	b.  She was informed the period of abeyance was 15 days and could not exceed 30 days.  Action related to her clinical privileges/practice and staff appointment, if warranted, was to be initiated by the Credentials Committee at its meeting on 1 November 2007.  

	c.  She was informed an abeyance that was not closed within 30 days would automatically become a summary suspension of clinical privileges and that a summary suspension would be in effect while due process proceedings were underway.  She was further informed a summary suspension in the DOD was not reportable.  

	d.  She was also informed that a CQM QA investigation would be conducted concerning all allegations and if there was substantial cause to proceed, a peer review under the auspices of the Credentials Committee may be introduced.  

   e.  She was also informed if she were to elect to terminate her military service prior to resolution of these matters, her abeyance would become a suspension of privileges/practice, which would be considered a final action and would be reported to the NPDB and/or other State or regulatory agencies.

22.  On 2 November 2007, by memorandum, subject: Notification of Abeyance of Clinical Privileges/Practice Additional 15 Days, from the Commander, MEDDAC, Fort Knox, shows she was notified her clinical privileges/practice had been placed in abeyance for an additional 15 days.  The memorandum indicated that this action is being taken as a result of a pattern of substandard care (refusal to practice within her assigned privileges in physical therapy and her request to have her military physical therapy privileges revoked due to her medical status and inability to adhere to the military physical therapy practices).  

23.  On 2 November 2007, she acknowledged receipt of the memorandum.  She acknowledged she understood a CQM QA investigation will ensue, and a peer review of her performance and conduct may be required.  She signed this acknowledgement on 20 November 2007.

24.  On 6 November 2007, Headquarters, U.S. Army Armor Center, Fort Knox, KY, published Orders 310-0158 ordering her release from active duty effective 11 November 2007.  Accordingly, she was honorably released from active duty on 11 November 2007 and she was transferred to the 4203rd USAH, Detachment 131.  Her DD Form 214 shows she completed 3 months and 19 days of creditable active service.  The form shows in:

* item 25 (Separation Authority) – "AR 600-8-24, para 2-25A"
* item 26 (Separation Code) – "LBK"
* item 28 (Narrative Reason for Separation) – "Completion of required active service"  

25.  On 13 November 2007, by memorandum, subject:  Investigation Pertaining to [the Applicant's] Privileges as a Physical Therapist, for the Commander, USA MEDDAC, Fort Knox, shows an investigating officer (IO) performed an "informal Quality Assurance" concerning the applicant's privileges.  

	a.  The IO found the applicant did not use techniques allowed in military physical therapy in her civilian practice and became uncomfortable with practicing basic privileges while at Fort Knox

* she was never pressured to perform services above her comfort level, and she was provided training opportunities to advance her skills
* she elected to request withdrawal of her privileges knowing she could continue to practice in some capacity and could have developed advanced skills with supervision and mentorship
* no evidence of substandard care, though she only provided limited care for 8 days
* she did not want to practice physical therapy in any capacity and intended to let her State licenses expire
* the decision to leave physical therapy was the main reason for withdrawing her credentials

	b.  The IO recommended the Credentials Committee summarily suspend privileges based on her withdrawal of privileges.  He stated she had thought out the decision and believed withdrawal would be in her best interest.  

26.  On 4 December 2007, an "Initial" DD Form 2499 submitted by the DCCS, Fort Knox, to Headquarters, MEDCOM, Fort Sam Houston, shows her clinical privileges were in abeyance followed by summary suspension pending due process.  Item 8d (Action Taken) shows the entry "Abeyance followed by summary suspension pending due process.  Provider submitted a request to have her privileges revoked due to her current medical status and inability to adhere to the military physical therapy practice." 

27.  On 4 June 2008, a "Final-Revision to Action DD Form 2499, submitted by the DCCS to MEDCOM, shows in Item 12 (Remarks) the following statement:

On 3 October 2007 [the applicant] submitted a statement to the DCCS to voluntarily have her privileges withdrawn due to her current medical status and inability to adhere to the military physical therapy practices.  A QA CQM investigation did not find evidence of substandard care provided by [the applicant].  A fitness for duty exam was not done.  A Peer Panel review is not warranted.  [The applicant] is an [Active Guard/Reserve] Soldier released from active duty."

28.  On 23 March 2009, the Chief of Quality Management Division, MEDCOM, Fort Sam Houston, sent the applicant a copy of the report that was recently sent to NPDB.  The Chief stated that all states of known licensure were notified of this action.  The Adverse Action report (Report Number 5X000000557XXXXX).  This report shows in:

* Section A: Initial Report
* Section B: Applicant's identification information
* Section C (Information Reported):  the report was filed based on action taken on 18 October 2007 to indefinitely suspend the applicant's clinical privileges; the extended abeyance became a reportable suspension when the applicant separated from active duty while her privileges were suspended

29.  On 9 June 2009, the Commander, Central Medical Area Readiness Support Group requested a show cause action be initiated against the applicant for loss of license or disbarment from professional practice, moral or professional dereliction, and conduct unbecoming an officer pursuant to paragraph 12-2 of AR 135-175.  The Commander recommended the applicant be separated from the USAR. 

30.  On 10 June 2009, by memorandum, subject:  Involuntary Officer Separation – [Applicant], for the Commander, AR-MEDCOM, a Deputy Staff Judge Advocate (SJA) found the packet requesting initiation of involuntary separation action against the applicant for moral or professional dereliction to be legally sufficient.  The Deputy SJA stated her unwillingness to practice military physical therapist duties was grounds for separation under the provisions of Army Regulation 135-175, paragraphs 2-12i(1) and 2-12o.  

31.  On 23 June 2009, by memorandum, subject:  Notification of Involuntary Separation Hearing Scheduled for 24-27 September 2009, the Commanding General, AR-MEDCOM, notified the applicant she was required to show cause for retention in military service to an administrative separation board.  The reason is listed as moral or professional dereliction IAW AR 135-175, paragraph 2-12(i). Specifically, on 3 October 2007 she submitted a request to have her military privileges revoked.  The IRACH Credentials Committee found she should not practice at IRACH or any other military facility.  Her unwillingness to practice her military duties is deemed an act of moral or professional dereliction.  She was notified she could:

* resign in lieu of involuntary separation
* request transfer to the Retired Reserve, if eligible
* request her case be acted upon by a board of officers

32.  Email correspondence between her and AR-MEDCOM, dated 28, 30, and 31 July 2009, shows her first "show cause" notice was voided and new board dates were to be established. 

33.  On 20 August 2009, the U.S. Army Human Resources Command (HRC) issued the applicant a DD Form 215 (Correction to DD Form 214) amending item 25 of her DD Form 214 to read "AR 600-8-24, para 2-7" and item 26 to read "MBK."

34.  On 5 October 2009, by letter sent to the Chief, Quality Management Division (QMD), MEDCOM, shows she contested the report to the NPDB.  She stated, in part: "I resorted to withdrawing my privileges after experiencing repetitive administrative mishandling for an extended period of time.  The administrative mishandling [led] to severe stress and medical/psychological ailments and placed me, the provider, into an ethical dilemma.  I believed I wasn't able to provide compassionate care as required by the American Physical Therapy Code of Ethics, and as a result, I was unable to adhere to military physical therapy practices."  She summarized the events leading to submission of a report to the NPDB and alleging there were several irregularities and failure to follow regulatory procedures.

35.  On 14 October 2009, HRC received her request for unqualified resignation through USARC.  She stated she was no longer a practicing physical therapist and did not anticipate returning to the field.  She was approved for resignation.  

36.  On 30 August 2009, by letter, the Executive Council of Physical Therapy and Occupational Therapy Examiners notified the applicant that the Investigative Committee of the board had concluded an investigation of the matter of adverse action report submitted by MEDCOM.  Based on that review and her letter of explanation, the Committee found this action will have no impact on her license to practice physical therapy in the state of Texas and this matter has been closed.

37.  On 23 October 2009, Headquarters, USARC, issued Orders 09-296-00002.  honorably discharging her from the USAR under the authority of AR 135-175.  

38.  On 21 May 2010, by letter to TSG, she formally requested reconsideration of the actions taken against her clinical privileges.

39.  On 18 August 2010, by email, a staff member of the G-1, USARC, informed her the paragraph of Army Regulation 135-175 pertaining to her separation was paragraph 6-10(a)1.  

40.  On 18 August 2010, by letter to the Chief, QMD, MEDCOM, she requested a response to correspondence she sent in July and October 2009.  She also requested three documents:  

* a DD Form 2499, dated 11 November 2007, indicating a final determination on the suspension of her privileges completed on the date of her REFRAD
* notification of suspension of privileges (final adverse action)
* a DD Form 2499 with TSG authorization to report an adverse action to the NPDB

41.  On 23 August 2010, by letter, the Director, Division of Practitioner Data Banks, informed her that the Secretary of the Department of Health and Human Services (HHS) had reviewed the Adverse Action Report submitted to the NPDB by MEDCOM on 23 March 2009.  The Secretary found no basis on which to conclude the report should not have been filed in the NPDB or that it was not accurate.  Her request that the report be voided from the NPDB was denied.  

42.  On 31 August 2010, by letter to MEDCOM, she requested deletion of multiple documents from her provider credential file (PCF), including:

* documents completed by IRACH pertaining to her clinical privileges and medical staff appointment
* documents associated with abeyance and summary suspension of privileges pending due process
* the adverse action report filed with the NPDB and all associated documents

She also requested extensive amendment of the organization and contents of her PCF, insertion of documents, and deletion of duplicate documents.

43.  On 1 September 2010, by letter, the Director, Health Policy and Services, responded to the applicant's letters to the Secretary of the Army concerning her report to the NPDB and her discharge from the USAR.  The Director stated that the issues she raised were the subject of an open DAIG investigation as was requested by her. 

44.  On 8 September 2010, by letter, the Chief, QMD, MEDCOM, responded to the request for documents she submitted on 18 August 2010.  The Chief, QMD, informed her:

* a DD Form 2499 dated 11 November 2007 did not exist
* the notification of abeyance dated 2 November 2007 was her notification of suspension of privileges and she already had a copy of the notification
* a DD Form 2499 with TSG authorization to report an adverse action to the NPDB did not exist because the form is a routing document that is never signed by TSG

45.  On 13 September 2010, by letter to the Division of Practitioner Data Banks, she requested reconsideration of the decision dated 23 August 2010.  She stated she had received her provider credential file and found information submitted by the reporting entity was inaccurate.

46.  On 24 September 2010, by letter, the Commander, MEDDAC, Fort Knox, informed her that a legal review of her appeal request and the substantiating documents she provided had been conducted.  He informed her that her appeal was denied and the decision would be relayed to the OTSG.  

47.  On 23 November 2010, by letter, the Chief, QMD, MEDCOM, informed her that her request to remove documents from her PCF and the NPDB report and to reverse the adverse privileging action taken against her were the subject of a DAIG investigation.  She was informed she would receive a response from the IG when the investigation was complete.

48.  On 23 November 2010, by letter, the Chief, Assistance Division, DAIG, informed her Member of Congress of the results of an inquiry concerning improper medical credentialing and privileging by IRACH and other matters.  

	a.  The official stated a thorough inquiry established the following issues were unfounded:

* review and primary source verification of the applicant's credentials were not conducted prior to granting clinical privileges in violation of AR 40-68
* Category II privileges were granted to the applicant who lacked the appropriate credentials in violation of AR 40-68
* the gaining command failed to review and correct errors in the attachments to the applicant's Inter-Facility Credentials Transfer Brief in violation of AR 40-68
* the applicant's USAR Inter-Facility Transfer Brief was not received at an active Army unit in a timely manner in violation of AR 40-68
* the applicant's protected health information was disclosed in violation of DOD policy
* the applicant was improperly denied referral to the Impaired Health Care Personnel Ad Hoc Committee in violation of AR 40-68

	b.  The issue that a supervisory plan was not completed for the applicant in violation of AR 40-68 was founded.

	c.  The applicant had requested assistance with procedures to nullify and/or appeal abeyance and suspension of an Adverse Action Report and informed the Member of Congress she could appeal through the NPDB to HHS.

	d.  Her assertion that her duties as a military physical therapist were above and beyond a civilian's scope of practice were noted.  Based on her education and training, she was not outside the scope of providing Category II care.

	e.  Her assertion that time limits were not met in the review of the abeyance and suspension of her privileges to the NPDB was noted.  IAW AR 40-68, no rights will accrue to the benefit of an affected provider, in an otherwise proper action, based on an organization's failure to meet time limits.

	f.  Her contention she did not receive timely notification of the privileges she was granted as well as her right to appeal her commander's decision was noted. The official stated the applicant lacked credibility due to the fact she requested revocation of her privileges on 3 October 2007.  Consequently, she was not afforded any additional rights regardless of the actual date of notification.  Once notified, she chose not to exercise her right to appeal.

	g.  Her DD Form 214 had been amended by a DD Form 215 dated 20 August 2009 to reflect the correct separation code of "MBK" denoting "voluntary expiration of term of service."  

49.  On 18 January 2011, by letter, an official at the DAIG responded to another request she had submitted on 15 December 2010.  The official informed her issues regarding her involuntary discharge, competency assessment forms, military training, medical privileging and notification of adverse action had been appropriately addressed by letters to her members of Congress dated 
22 November 2010.  She was informed that if she desired to pursue the matters further she could petition this Board. 

50.  On 14 May 2012, the Chief of Quality Management Division, MEDCOM, Fort Sam Houston, sent the applicant a copy of the report that was recently sent to NPDB.  The Chief stated that all states of known licensure were notified of this action.  The Adverse Action Report (Report Number 5X00000745XXXXX).  This report shows in:

* Section A: Correction
* Section B: Applicant's identification information
* Section C (Information Reported): Suspension of Clinical Privileges; on 4 December 2007, the Physical Therapy privileges of [Applicant] at IRACH Fort Knox were summarily suspended following an extended abeyance in response to her request for revocation of her privileges and her refusal to practice Physical Therapy; while [Applicant's] privileges were suspended, she separated from active duty

51.  On 27 August 2012, the Secretary of the Department of Health and Human Services responded to her request for reconsideration regarding the Secretarial Review Decision Letter (Decision Letter), dated 23 August 2010.  

	a.  The Decision Letter referred to Adverse Action Report (5X0000000557XXXXX) submitted to the NPDB by MEDCOM on 23 March 2009.  The Army corrected this report on 25 April 2012 and replaced it with Adverse Action Report (DCN 5X000000745XXXXX) (the Report).  The earlier is no longer active or disclosed to queries as it has been replaced by the 25 April 2012 Report. 

	b.  The Secretary affirms the original decision that the Report was properly filed with the NPDB.  There is no basis on which to conclude that the Report should not have been filed in the NPDB or that it is inaccurate.  Her request that the Report be voided from the NPDB is hereby denied.  The Report remains in the NPDB. 

52.  Memorandum of Understanding (MOU) between the Health Resources and Services Administration, Department of Health and Human Services and the Department of Defense ensures the participation of the DOD in the national reporting system established under part B of the Health Quality Improvement Act of 1986 (Public Law 99-660) in accordance with the intent of Congress as set forth in section 432 of this act.  DOD will report all instances in which a DOD health care practitioner's clinical privileges are denied, limited (restricted), or revoked by an agency of DOD for reason of incompetence or negligent performance.  On 9 November 1992, by letter from DOD, the Assistant Secretary of Defense informed the Department of Health and Human Services of DOD';s establishment of formal instruction regarding DOD's participation in the NPDB. 

53.  AR 40-68, paragraph 10-6 states when a provider’s conduct, condition, or performance requires action to protect the health or safety of patients, his/her clinical privileges/practice will be placed in abeyance or suspended while a thorough and impartial investigation is conducted.  The fact-finding period allows time to gather and carefully evaluate additional information regarding the situation prior to initiation of an adverse privileging/practice action, if deemed appropriate.  AR 40-68 makes the following definitions: 
	a.  An abeyance is not an adverse privileging/practice action.  However, the individual is formally placed “on notice” that scrutiny of his/her practice has begun which may result in an adverse privileging action or other administrative action.  The commander, DCCS, or department chief may take this action against a provider/professional.

	b.  An abeyance action is taken by the appropriate authority when an evaluation of performance appears warranted, but information is insufficient to suspend privileges/practice or the potential hazard to patients or patient care is not well defined.  In any case, prudence dictates that the individual not be permitted to render patient care.  During the period of abeyance the provider is assigned to nonclinical duties until the investigation is complete.  A DD Form 2499 will be initiated and forwarded (for informational purposes only) to the USAMEDCOM QMD, with copy furnished to the regional medical command or other higher headquarters, as appropriate.

	c.  An abeyance is valid for 15 calendar days and may be extended by the commander, if required, provided the total period of abeyance does not exceed 30 calendar days.  On the 31st day, if the abeyance is not closed, the action automatically becomes a summary suspension of clinical privileges/practice.  This is a temporary action.  Once the case is closed, all documentation associated with an unfounded abeyance action will be destroyed.

	d.  An abeyance that is not resolved when the individual terminates his/her relationship with the medical treatment facility (MTF) (that is, resigns his/her position or is released from active duty) automatically becomes a suspension of privileges.  This is considered a final action and the suspension of the provider’s privileges/practice will be reported as outlined in chapter 14.

54.  AR 40-68, chapter 14, states a variety of national agencies and clearinghouses exist to which the AMEDD must report information such as malpractice payments, licensure disciplinary actions, adverse clinical privileging actions, and unfavorable actions affecting professional society membership.  Adverse professional peer review actions taken against any healthcare personnel must be reported.  In addition, State regulatory agencies responsible for licensure, certification, or registration require notification of the following: substantiated unprofessional conduct or behavior, any actions taken to restrict or otherwise constrain the professional privileges/scope of practice of healthcare personnel, and malpractice settlements on behalf of healthcare personnel.

55.  TSG is the sole reporting authority to the NPDB, State regulatory authorities, the Federation of State Medical Boards, and/or other appropriate central clearinghouses.  TSG is responsible for reporting malpractice history information and adverse privileging actions, unprofessional conduct or behavior, and any legal charges for which the provider/professional is found guilty, pleads guilty, pleads nolo contendere, or requests discharge from the military in lieu of courts-martial.  TSG will not report to professional regulatory agencies, or to any other agencies, adverse privileging actions, malpractice payments, or any civilian court actions involving a USAR/Army National Guard provider’s behavior or conduct which occurs during other than his/her military duty.  MTF documentation in support of reports to the NPDB, State regulatory agencies, the Federation of State Medical Boards, or other bodies will be forwarded directly to Commander, MEDCOM, Fort Sam Houston, TX.

56.  Privileged providers/professionals will be reported to the NPDB or to a State regulatory agency within 30 calendar days of approval when the provider/professional voluntarily surrenders his/her clinical privileges or voluntarily requests a limitation of scope of practice while under investigation for issues of competence or conduct.

57.  AR 635-5-1 (Separation Program Designator (SPD) Codes) provides the SPD codes to be entered in item 26 and the narrative reasons for separation to be entered in item 28 of DD Form 214.  SPD code "LBK" applies to involuntary separations under the provisions of AR 600-8-24, paragraph 2-25a, for completion of required active service.  SPD code "MBK" applies to voluntary separations under the provisions of Army Regulation 600-8-24, paragraph 2-7, for completion of required active service.

58.  Army Regulation 135-175 provides policy, criteria, and procedures for the separation of officers of the Army National Guard and the USAR.  Paragraph     6-10a states normally an obligated officer will not be permitted to resign her office until such time as the obligated period of service is completed, except as otherwise provided below.  Paragraph 6-10a(1) states Headquarters, Department of the Army, may approve acceptance of a resignation in cases involving extreme compassionate circumstances; or, when such action is deemed to be in the best overall interest of the officer and the Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her earlier request should be reconsidered for the correction of her records as indicated below.  

2.  With respect to the verification that her PCF and all records correctly reflect her active duty voluntary discharge IAW AR 600-8-24, paragraph 2-7, and USAR unqualified resignation IAW AR 135-175, paragraph 6-10(a)(1):

	a.  The Board corrects records; it does not verify or validate an entry.  Nevertheless, the applicant's release from active duty has already been corrected to show she was honorably released from active duty IAW with paragraph 2-7 with an SPD Code of MBK (completion of required service).  

	b.  The applicant was honorably discharged from the USAR on 23 November 2009 IAW AR 135-178.  USAR discharge orders do not list the specific paragraph of the authority for discharge.  In any case, the Army G-1 official already informed her of the authority for her discharge from the USAR.

3.  With respect to the removal and destruction of all documents associated with: unfounded abeyance; unsubstantiated "summary" suspension and restriction of clinical privileges actions; voided Army Reserve involuntary separation hearing; and replaced initial adverse suspension of clinical privileges, the NPDB Report dated 23 March 2009 and voiding the "corrected" adverse suspension of clinical privileges, NPDB Report dated 25 April 2012:

	a.  On 4 December 2007, the applicant's Physical Therapy privileges were summarily suspended following an extended abeyance in response to her own request for revocation of her privileges and refusal to practice physical therapy.  While her privileges were summarily suspended, she was separated from active duty.  This is a reportable action to the NPDB. 

	b.  The reporting requirements of DOD practitioners are governed by the MOU as well as the policies and procedures of DOD and the services, in her case, the Army.  The applicant was notified of her first abeyance, second abeyance, and separation.  She was provided notification in writing (and acknowledged receipt) of each step in the process.  She was afforded the opportunity to present her case and she did so.  She also filed an action request with the DAIG and twice appealed to the Secretary of the Department of Health and Human Services.  

	c.  She had been a licensed physical therapist for nearly 7 years when she was appointed in the USAR.  When she entered active duty in 2007, she had been a licensed physical therapist for nearly 10 years, and she had been a USAR physical therapist for more than 2 years.  Despite her experience and despite the efforts by her chain of command to support her in her practice of military physical therapy, she requested revocation of her military physical therapy privileges.  She stated her request was based on her "current medical status and inability to adhere to the military physical therapy practices."  


	d.  As a result of her request, her privileges were properly placed in abeyance and she was informed that, if she elected to terminate her service prior to resolution of the matter, the abeyance would become a suspension of privileges reported to the NPDB.  

	e.  Following an informal investigation, a summary suspension of privileges was imposed pending due process.  When she voluntarily left active duty and IRACH on 11 October 2007, due process was not complete.  The unresolved matter became a suspension of privileges reportable to the NPDB.  By regulation, a filing of an Adverse Action Report with the NPDB was required. 

	f.  The evidence of record does not support the applicant's requests that an adverse privileging report submitted to the NPDB be voided and that all "abeyance and adverse actions" against her privileges be voided and removed from her record.

4.  With respect to her contention to refer her requests to OTSG to IRACH commander automatic endorsed appeal action dated 24 September 2010 IAW AR 40-68, paragraph 10-10b if the Board is unable to complete requests due to procedure established by the Secretary of the Army, this is not a record correction.  If the applicant wishes to correspond with OTSG, she may do so freely.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ____x___  ____x___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  As for the issues being reconsidered, 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 to amend the decision of the ABCMR set forth in Docket Number AR20120005119, dated 8 January 2013. 

2.  As for the new issue, 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.

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ABCMR Record of Proceedings (cont)                                         AR20140001066



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