Tag Archives: national practitioner data bank

Campaign wants some immunity for docs who apologize

Andrew Van Dam

About Andrew Van Dam

Andrew Van Dam of The Wall Street Journal previously worked at the AHCJ offices while earning his master’s degree at the Missouri School of Journalism, and he has blogged for Covering Health ever since.

According to my mother, it sometimes isn’t enough to just say you’re sorry. In The Kansas City Star, Alan Bavley writes that, apparently, some physicians disagree. In particular, an organization called “Sorry Works!” thinks that apologies are powerful enough that they should provide doctors with immunity from some malpractice and disclosure rules. And, he writes, they’re campaigning to make it official.screen-shot-2012-05-22-at-25535-pm

…about five years ago, Sorry Works! changed from a coalition of doctors, lawyers, insurers and patient advocates. Now it’s a commercial consulting firm. Founder Doug Wojcieszak offers training to hospitals and doctors. And he has started crusading for new immunity for doctors who apologize.

According to Bavley, “Wojcieszak wants the (National Practitioner Data Bank) bank to keep malpractice payments secret in many cases when doctors make apologies and disclosures. Further, he wants doctors shielded from medical board discipline on these cases.”

Consumer’s Union and patient safety organizations have come out against the Sorry Works! campaign because, as Bavley writes, “proposal would give doctors who were going to settle a suit anyway an incentive to apologize just to keep it off their record.”

Under Sorry Works! three strikes rules, the vast majority of doctors (who face one or fewer malpractice suits during their career) would be able to stay clear of the data bank entirely, thus denying the public and medical boards access to crucial information that’s currently being made public.

William Heisel at ReportingOnHealth.org explains why Consumer’s Union and Robert Oshel, the designer of the National Practitioner Data Bank’s Public Use File are not in favor of the campaign .

HHS responds to questions about enforcement of NPDB restrictions

Pia Christensen

About Pia Christensen

Pia Christensen (@AHCJ_Pia) is the managing editor/online services for AHCJ. She manages the content and development of healthjournalism.org, coordinates AHCJ's social media efforts and edits and manages production of association guides, programs and newsletters.

Journalists who name troubled physicians in their stories after downloading a public version of the National Practitioner Data Bank do not have to answer government questions about their sources and will not be subject to criminal, civil or administrative penalties if they violate new restrictions on use of the database.npdb-041312

That’s according to a spokesman for the U.S. Department of Health and Human Services, who wrote to AHCJ last week. AHCJ had asked the U.S. Health Resources and Services Administration, which operates the database, how it intended to enforce the new restrictions on its use, which were imposed late last year.

The federal response is the latest in a long-running dispute between the Obama administration and journalism organizations about the Public Use File of the government’s doctor disciplinary database.

The National Practitioner Data Bank compiles malpractice payouts, hospital discipline and regulatory sanctions against medical practitioners, for private use by hospitals and other organizations that credential them.

While the data bank is secret, for years HRSA has posted a Public Use File, often consulted by reporters and researchers. This public version of the data bank lists the disciplinary actions, but identifies the doctors and other practitioners only by number. As required by law, it contains no identifying information, such as names, addresses, Social Security numbers or dates of birth. But reporters have used the Public Use File to enhance information they had gathered elsewhere on known doctors.

HRSA removed the Public Use File from its website last year for two months after a doctor and his lawyer complained that a Kansas City Star reporter improperly used it to identify him. Following protests from journalists and consumer groups, in November, HRSA restored the public file but began requiring anyone wishing to download it to agree he or she will not use it to identify individual physicians.

The Association of Health Care Journalists, Investigative Reporters and Editors, National Association of Science Writers, National Freedom of Information Coalition, Reporters Committee on Freedom of the Press, and Society of Professional Journalists protested this decision.

In a letter sent to HRSA administrator Mary Wakefield in December, the groups asked what process HRSA would follow to determine whether a reporter had violated the agreement and whether HRSA would ask to see notes and talk to sources, among other questions.

In a response, HHS Deputy Assistant Secretary for Public Affairs Chris Stenrud wrote:

“As you know, HRSA is required by law to maintain the information in the Public Use File of the National Practitioner Data Bank (NPDB) in a form that does not permit the identification of individual practitioners or health care entities. The data use agreement (DUA) was added to help ensure that the data would be in such a form and HRSA’s legal obligation under the statute would be met.

“HRSA will investigate alleged breaches of the DUA on a case-by-case basis. HRSA may request additional information from the reporter or third parties, but the Department cannot compel reporters or third parties to speak with us. We have been advised by the HHS Office of the General Counsel that a user who violates the Public Use File’s DUA is not subject to criminal, civil or administrative penalties. If HRSA determines that data from the PUF have been misused, however, HRSA would need to re-examine the data and consider removal of any specific data points that are making the information identifiable.”

AHCJ President Charles Ornstein said he believes the government continues to misinterpret the law governing the database, noting that previous Democratic and Republican administrations had not imposed this requirement on the same information. That said, he advised reporters using the Public Use File to exercise their rights not to answer questions about their reporting methods that federal officials may ask.

“This fight is not over,” Ornstein said. “While we are adamant that the government return free and open access to this database, this letter provides answers to some of the questions we asked,” Ornstein said. “In the event the government comes calling, reporters do not have to answer questions about their sources, and they and their organizations cannot be penalized in any way for their use of the Public Use File.”

Ornstein suggested reporters speak to their editors and attorneys before downloading the database. Another option, he said, is for concerned reporters to download a slightly older version of the file -which has no restrictions on its use – from the website of the Investigative Reporters and Editors. The file has not been updated since August 2011.

“If anyone encounters any difficulty or problems from government officials regarding their use of the doctor discipline database, please alert us immediately,” Ornstein said.

For more background, please see AHCJ’s Right to Know page or this timeline.

Related

Secrecy around data bank protects ‘Practitioner No. 222117’

Pia Christensen

About Pia Christensen

Pia Christensen (@AHCJ_Pia) is the managing editor/online services for AHCJ. She manages the content and development of healthjournalism.org, coordinates AHCJ's social media efforts and edits and manages production of association guides, programs and newsletters.

Alan Bavley of The Kansas City Star provides us with a stark illustration of why new restrictions on the use of the National Practitioner Data Bank are not in the public interest.

In the most straightforward example yet, Bavley reports on “Practitioner No. 222117,” a doctor whose medical licenses have been revoked or suspended by 20 states, who was banned from billing Medicaid or Medicare and whose license to prescribe was yanked by the Drug Enforcement Administration. Bavley learned all of that from perusing the data bank’s Public Use File.

The NPDB includes reports on malpractice payments and disciplinary actions involving health care professionals. Hospitals and state medical boards can use the data when deciding to grant staff privileges or when reviewing license applications, though AHCJ found state medical boards do that less than you might expect. The NPDB’s Public Use File, available for download on a public website, removes identifying information. Bavely’s article explains more about how they de-identify the data.

Despite all we know about Practitioner No. 222117, we don’t know if he or she is still practicing medicine. The public, including journalists, is restricted from using the data to identify this doctor.

In the past, reporters have used information in the Public Use File, in combination with other records, to identify to flesh out their reporting on troubled doctors and show the failure of medical boards to act against doctors with multiple malpractice awards.

That ended on Sept. 1, when the U.S. Health Resources and Services Administration, which runs the database, removed the public use file because one doctor complained about stories that Bavley was writing.

AHCJ, along with other journalism groups and patient-safety advocates, decried the database’s removal. In November, HRSA restored the Public Use File – but with restrictions on how it can be used. Reporters and researchers have to agree not to connect any individual to information in the database. Reporters can be barred from future access to the database if HRSA decides they have violated the rules. For more background, please see AHCJ’s Right to Know page or this timeline.

Agency’s restrictions on data about disciplined doctors continue to get attention

Pia Christensen

About Pia Christensen

Pia Christensen (@AHCJ_Pia) is the managing editor/online services for AHCJ. She manages the content and development of healthjournalism.org, coordinates AHCJ's social media efforts and edits and manages production of association guides, programs and newsletters.

The Kansas City Star and The Sacramento Bee ran editorials over the weekend to denounce the recent decision by the U.S. Health Resources and Services Administration to place restrictions on the public use file of the National Practitioner Data Bank.

The Star says the restrictions “display an appalling disrespect for journalists and researchers and for the public’s right to gain information about the doctors to whom they entrust their health and safety.”

It calls the move a “clumsy attempt to restrict access to public information [that] promotes nothing but confusion and darkness.”

Meanwhile, The Bee says the Obama administration has “positioned itself on the side of protecting the privacy of doctors who maim patients.” It also suggests that President Obama reread the First Amendment.

On Sunday, the Society of Professional Journalists hosted AHCJ President Charles Ornstein, SPJ President John Ensslin and Kansas City Star reporter Alan Bavley for a discussion of the data bank and the importance of its information being open to the public without restrictions.

As regular Covering Health readers know, the public use file has been used regularly by reporters who have covered lax oversight of troubled doctors. When Bavley was working on such a story, however, a doctor he was investigating contacted HRSA and complained the data was being used improperly. That doctor’s complaints led to HRSA threatening Bavley with a fine, which it later backed down from, and pulling the data off of the website.

After protests from journalism organizations, consumer groups, academic researchers and U.S. Sen. Charles Grassley, the agency republished the data file last Wednesday but placed restrictions on how it was to be used. In a letter to U.S. Health and Human Services Secretary Kathleen Sebelius, the journalism groups called the new restrictions “ill-advised, unenforceable and probably unconstitutional. Restricting how reporters use public data is an attempt at prior restraint.”

Grassley also has expressed his disappointment in the restrictions: “HRSA is overreaching and interpreting the law in a way that restricts the use of the information much more than the law specifies.”

For more background, this timeline tracks the story:

Grassley blasts HRSA over data removal after seeing letter exchange with doc

Len Bruzzese

About Len Bruzzese

Len Bruzzese is the executive director of AHCJ and its Center for Excellence in Health Care Journalism. He also is an associate professor at the Missouri School of Journalism and serves on the executive committee of the Council of National Journalism Organizations.

The action taken by the U.S. Health Resources and Services Administration to remove the public version of the National Practitioner Data Bank came only after the urging of a Kansas neurosurgeon with a long history of malpractice payouts, according to records released Thursday by U.S. Sen. Charles Grassley.

The doctor, Robert Tenny, sent six letters to HRSA both before and after the Kansas City Star wrote a story that said he had been sued at least 16 times for malpractice and had paid out roughly $3.7 million since the early 1990s.

Grassley blasted HRSA for making a hasty decision to remove the data bank’s Public Use File from its website without doing independent research and he called for its immediate restoration.

“Instead of conducting its own research into the professional conduct of Dr. Tenny, HRSA appears to have over reacted to the complaint of a single physician based on no evidence other than that he received a call from the press,” Grassley wrote Thursday in a letter to Health and Human Services Secretary Kathleen Sebelius.

The documents released by Grassley also show that HRSA warned 28 hospitals and health plans throughout Kansas about discussing the data bank records of Tenny following the doctor’s allegation that a hospital must have leaked information about him to Star reporter Alan Bavley.

The National Practitioner Data Bank is a confidential system that compiles malpractice payouts, hospital discipline and regulatory sanctions against doctors and other health professionals. For years, HRSA has posted aggregate information from the data bank in a Public Use File that did not identify individual providers.

HRSA officials removed the public file from the data bank website on September 1 because a spokesman said they believe it was used to identify physicians inappropriately. The Association of Health Care Journalists has protested the action, along with Investigative Reporters and Editors, Society of Professional Journalists, National Association of Science Writers, Reporters Committee for Freedom of the Press, and National Freedom of Information Coalition.

Grassley released the documents Thursday in response to a letter he received from HRSA administrator Mary Wakefield.
 
Among them was an email showing that the data bank’s director quickly notified Tenny’s lawyer about a letter she sent to Bavley threatening the reporter with civil penalties if he ran a story based on information from the data bank. Cynthia Grubbs, director of HRSA’s division of practitioner data banks, forwarded the letter to Tenny’s lawyer, Charles R. Hay, less than three hours after sending the warning to Bavley. (HRSA subsequently backed off its threat against Bavley.)

 “HRSA’s response makes it apparent that HRSA simply accepted the complaint of the physician involved at face value and jumped to conclusions about how Mr. Bavley obtained the information,” Grassley wrote. “Once HRSA learned of its mistake, it then compounded the error by shutting down access to information that Congress intended to be public” through the Public Use File.

“All Mr. Bavley did was use publicly available data, and HRSA’s response to that was to shut down access to that data for everyone,” Grassley wrote.

AHCJ President Charles Ornstein, responding to the documents Grassley released Thursday, reiterated his call for HRSA to republish the Public Use File immediately.

“We are past due for HRSA to acknowledge its mistake, apologize and restore access to this file on its website,” he said. “Journalists have used this information responsibly for years to write about questionable physicians, and their stories have led to new laws and regulations that have improved patient protections.”

Ornstein also said the documents released by Grassley “raise troubling questions about HRSA’s due diligence before taking this major action.”

According to the documents, Tenny repeatedly wrote Grubbs, questioning the motives of a hospital that he contends hired a publicist to try to destroy his career and impugning Bavley.

In another letter, he alleged a “coordinated attack.” And in another, he told Grubbs to “stay strong and keep up the good work!”

In response, Grubbs wrote Tenny on Sept. 26, saying, “We have contacted the hospitals and health centers…who have queried on you in the past 6 years to remind them of the confidentiality requirements and the sanctions for violations of confidentiality. We instructed the hospitals to examine their records and report back to us with any potential confidentiality breaches. We will act swiftly to investigate any potential violations of confidentiality.”

In her letter to Grassley, dated Tuesday, Wakefield said HRSA is working toward “a solution that meets its responsibilities regarding confidentiality under the Data Bank statute while reflecting its commitment to facilitating important research.”

“Our goal is to make as much information available as soon as we can, but we do not have a specific timeline at this point,” she wrote.

In addition to calling for restoration of the public file, Grassley asked for an immediate briefing by the HRSA official responsible for the decision to remove it in the first place.