Agency re-posts National Practitioner Data Bank file, but restrictions draw fire

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 U.S. Health Resources and Services Administration today republished the public version of the National Practitioner Data Bank, after intense pressure from journalism groups, researchers and members of Congress.

But the action comes with a major catch: Those who want to access the data will have to agree to certain restrictions that were not in place before.

National Practitioner Data Bank public use file

Nov. 9 statement by HRSA Administrator Mary K. Wakefield, Ph.D., R.N.

Earlier coverage:

See an interactive timeline of the National Practitioner Data Bank controversy.

Nov. 3: Grassley blasts HRSA over data removal after seeing letter exchange with doc

Oct. 7: Grassley criticizes federal agency over removal of doctor discipline data
Grassley’s letter to HRSA Administrator Wakefield (PDF)

Oct. 2: Former Practitioner Data Banks official says HRSA ‘erroneously interpreting the law’
Oshel’s letter & statement (PDF)
Letter to Sebelius & Wakefield (PDF)

Sept. 28: Journalists turn to Sebelius for access to National Practitioner Data Bank file
Letter to Sebelius (PDF)

Sept. 22: Agency declines to restore public data
Letter from HRSA (PDF)

See how reporters have used NPDB’s public use file to expose gaps in oversight of doctors

Sept. 21: More journalism groups join effort, send letters to Congress to restore access
Letter to members of Congress
(PDF)

Articles, editorials about public access to the NPDB public use file (PDF)

Sept. 15, 2011: AHCJ, other journalism organizations protest removal of data from public website
HRSA letter to Bavley (PDF)

Earlier version of NPDB public use file posted by Investigative Reporters and Editors, working with AHCJ and the Society of Professional Journalists.

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 Sept. 1 because a spokesman said the agency believed it was used to identify physicians inappropriately. The Association of Health Care Journalists has protested the action, along with Investigative Reporters and Editors, the Society of Professional Journalists, the National Association of Science Writers, the Reporters Committee for Freedom of the Press and the National Freedom of Information Coalition.

Other groups likewise protested, including Public Citizen, Consumers Union and prominent health researchers. U.S. Sen. Charles Grassley has twice written to federal officials condemning the action.

AHCJ president Charles Ornstein commended the Obama administration for working with reporters on this issue but said he is concerned about the restrictions HRSA is imposing for those seeking access to the data.

“How can the government say data is public but then say it’s only public with strings attached?” Ornstein said. “I am troubled that HRSA is overstepping its legal authority with these new rules and may be imposing unconstitutional prior restraints on reporters.”

To gain access to the Public Use File, reporters must agree to three conditions: they will not use it alone or in combination with other data sets to identify any individuals or entities; they will not repost the raw data; and they will return it to HRSA upon request. Violating the rules could result in having to return the data and being barred from receiving it in the future, HRSA says.

“Having access to information on physician discipline, malpractice payouts and hospital sanctions is important for those who care about patient safety and oversight of physicians across the country,” Ornstein said. “But the restrictions put in place by HRSA are unworkable.”

Ornstein encouraged HRSA to abide by its longstanding practice of refusing to confirm or deny the identity of individual physicians in the Public Use File. In doing so, reporters and their news outlets bear the legal liability for ensuring their information is correct, and newsrooms must ensure they have exercised due diligence in their reporting.

Reporters have used the Public Use File for two primary tasks. The first is for statistical information (the number of doctors in their state with malpractice payouts who have not been disciplined) and that would be allowed under the new rules.

The second is to fill in information about particular physicians whom they have identified through other records and means. That would be barred under the new rules.

“In the past, the Public Use File has been a vital tool for journalists writing about insufficient oversight of physicians in their states,” Ornstein said. “Without such articles, some unsafe doctors would very likely continue to be practicing with clean licenses and patient protection legislation in several states likely would not have been enacted. I worry such reporting may be chilled by those new rules.”

HRSA removed the public version of the data bank only after the urging of a Kansas neurosurgeon with a long history of malpractice payouts, according to records released Nov. 3 by Grassley. The doctor, Robert Tenny, sent six letters to HRSA 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.

An earlier version of the Public Use File, accessed in August before it was removed, is available on IRE’s website. It does not include some updated information that is available in the file that HRSA republished today. At the same time, reporters are not bound by the new restrictions imposed by HRSA.

Update: Comment from Grassley

Sen. Charles Grassley

Sen. Charles Grassley

Grassley released this statement this afternoon:

“HRSA is overreaching and interpreting the law in a way that restricts the use of the information much more than the law specifies. Nowhere in the law does it say a reporter can’t use the data in the public use file to combine that with other sources and potentially identify doctors who have been disciplined in their practice of medicine.This agency needs to remember that half of all health care dollars in the United States comes from taxpayers, so the interpretation of the law ought to be for public benefit. It’s also hard to see how HRSA has the resources to require the return of supposedly misused data or how that would even work. It seems the agency’s time would be better used in making sure the database is up to date and as useful as possible. I continue to expect a briefing from HRSA on this situation, including participation from the person who pulled the public data file after a single physician complained that a reporter identified him through shoe leather reporting, not the public data file. One complaint shouldn’t dictate public access to federally collected data for 300 million people.”

7 thoughts on “Agency re-posts National Practitioner Data Bank file, but restrictions draw fire

  1. Melanie

    Have you (or anyone else that you know of) already submitted an FOIA request for Dr. Tenny’s six letters to HRSA? If you have them already, perhaps through some other means, and have posted them online, could you please provide a link to them? Thank you very much!

  2. Pingback: Journalism groups protest HRSA restrictions to Sebelius : Covering Health

  3. Pingback: The Federal Government Needs To Follow Illinois’ Lead, and Make All Physician Background Information Open To The Public | Gladstein Law Firm Blog

  4. Pingback: Agency’s restrictions on data about disciplined doctors continue to get attention : Covering Health

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  6. Mike Atchley

    Anyone who believes for even one second that the HRSA would pull this information as a result of a single neurosurgeon’s requests, even if it were a million letters he wrote, is naive. I don’t care if he was the heart surgeon for Dick Cheney! The NPDB and the reports it publishes are powered by the government, big insurance and the mighty dollar. They use this information to their advantage and will do with it what they please. If the information is no longer available to the press, then it was because for some reason, the unavailability of this information benefitted the two main players mentioned above. That is all there is to it.
    And by the way, good doctors who have never been the subject of disciplinary matters, lawsuits, complaints or any type of sanctions are being reported to the NPDB in large numbers by the insurance companies for whom they were providers at one time. Due to their refusal to comply with the insurance company’s demands that they refrain from submitting bills for non-approved procedures or tests/treatments, these doctors’ provider contracts were terminated for “abusive billing practices.” The doctors argue that studies show documented benefit to the non-approved treatments, the patients request them and previously insurance would approve these types of claims on a limited “investigational” basis. These investigational therapies keep our country’s medical system on the cutting edge and one ot the best in the world. Without at least some commitment to approval, at least on limited basis, of a doctor’s instinctual need to try something new (as in the case of a patient who is not improving to conventional approaches) we would still be using old therapies that have been long since replaced. Instead, for his attempts to use his unique knowledge of the patient to recommend an alternative, the doctor is terminated, and since 2010, the Health Plan is allowed to report this termination to the NPDB, which is a death sentence to a doctor’s career. No health plan or hospital will credential contract with or approve privileges for a doctor with a NPDB report. It is the real “Black List”. The NPDB is just a way for the Big Insurance companies to control their costs by gradually eliminating the doctors whose submitted claims tend to be “outliers.” It makes no difference that maybe his charges are higher because he spends more time with his patients, he tends to get the sicker patients with many problems and therefore a higher fee is billed to the insurance. Meanwhile, the doctor down the hall who won’t listen to anyone, and doesn’t even examine you, will keep his visits to one problem at a time and see twice the amount of patients in the same time frame (who really aren’t even sick, but just want the antibiotic just in case) , and will be viewed by the insurance company as the better of the two doctors due to his lower claim rate per patient ratio. Good doctors are being eliminated from the profession by the insurance companies (especially the big 4) and the NPDB with the government’s help. Obamacare had succeeded in doing the greatest harm it could have done to the US healthcare system: it unified the big insurance companies with the US government who will now operate without any form of oversight but bureaucrats. I say expose every doctor on the NPDB. I’m one, and I don’t care. Doctors are people. People make mistakes and some are worse than others. Believe me, the insurance companies would rather have a doctor with disciplinary or malpractice settlements (two things they can control now that the government is their ally) than to have a doctor with a conscience, a heart and higher claims. Me? I believe in the American people. Let them see exactly what is being reported on the NPDB, even doctors’ names and the reasons for the report. The reason why it is being repressed is because the insurance companies don’t want you to see what they are doing.

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