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AHCJ protests FDA surveillance of communication between reporters, scientists

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Following a New York Times report over the weekend that revealed the federal government secretly tracked communication sent by FDA scientists to “members of Congress, lawyers, labor officials, journalists and even President Obama,” the Association of Health Care Journalists has expressed alarm at the “Orwellian practices” in a letter sent to HHS Secretary Kathleen Sebelius.

From the letter:

” … the pushback on journalists seeking information from HHS and its agencies, coupled with covert monitoring of scientists’ communications with journalists and elected representatives, reflects a culture of cynicism within your department toward the principles of open government, free speech, and the public’s right to know. The actions detailed in the Times story imperil all reporters’ relationships with HHS and its agencies.”

The letter goes on to request that the agency notify all reporters whose communications were intercepted and conduct an audit of all HHS divisions to find out how widespread the monitoring is.

The Times reports that the surveillance grew out of a “narrow investigation into the possible leaking of confidential agency information by five scientists” and “identified 21 agency employees, Congressional officials, outside medical researchers and journalists thought to be working together to put out negative and ‘defamatory’ information about the agency.”

The report was especially shocking to AHCJ because the association has been working for years to make it easier for reporters to interview federal employees and get information from HHS agencies. The HHS media office has been receptive to the organization’s concerns and pledged to improve responsiveness. Indeed, many members have reported improvements in access. But the Times story points a deeper culture running contrary to these efforts.

The FDA used software that tracked keystrokes and captured screenshots on the scientists’ computers. The documents were eventually posted on a public website, apparently by mistake, the Times says.

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.

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

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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:

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.

Journalism groups protest HRSA restrictions to Sebelius

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The Association of Health Care Journalists and six other journalism organizations on Thursday formally protested the Obama administration’s new restrictions on access to the republished Public Use File of the National Practitioner Data Bank.npdb-sebelius-letter-image

In a letter to U.S. Health and Human Services Secretary Kathleen Sebelius, the groups said that the new restrictions “are ill-advised, unenforceable and probably unconstitutional. Restricting how reporters use public data is an attempt at prior restraint.”

The Health Resources and Services Administration removed the Public Use File of the data bank from its website in September after a complaint from a doctor who complained information on him was used inappropriately. The agency republished the data on Wednesday but put in place restrictions on how the data could be used.

Among the restrictions is a provision that bars users from matching data in the Public Use File with other data sources to identify physicians. If journalists or others are found to have violated the provision, they could be required to return the data and be barred from receiving it in the future.

An excerpt from the letter:

This puts journalists in an untenable position. How can reporters who use the file prove that their identification of a troubled doctor was independent of the Public Use File? If reporters identify doctors in their stories and also have had access to the file, would HRSA ask to see their notes, talk to their sources, confirm that their facts came from other records and not the data bank?

In addition to AHCJ, the letter is signed by the Investigative Reporters and Editors, the Society of Professional Journalists, the National Association of Science Writers, the Reporters Committee for Freedom of the Press, the National Freedom of Information Coalition and the National Conference of Editorial Writers.

The editorial writers group has recently joined the coalition of media organizations seeking a return of the Public Use File as it was available before September – without restrictions.

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.

Former Practitioner Data Banks official says HRSA ‘erroneously interpreting the law’

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A former federal official criticized a decision by the U.S. Health Resources and Services Administration for removing the Public Use File of the National Practitioner Data Bank from the agency’s website – a major development as journalism groups fight to restore access to the important tool.

Robert Oshel, who created the Public Use File in the mid-1990s and managed it until his retirement in 2008, said in a statement released to the Association of Health Care Journalists on Sunday that HRSA is “erroneously interpreting the law” governing the data bank.

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 made a public version of it available without identifying information about the health providers.

HRSA officials removed the public file from the data bank website last month because a spokesman said they believe it was used to identify physicians inappropriately.

But in his letter to AHCJ, Oshel said HRSA officials have confused the requirements of the law.

“HRSA’s current management seems to confuse the law’s requirement that a public data file not permit use of its records to identify individual practitioners with a very different requirement, and one not in the law: that the file not allow the records of previously identified practitioners to be identified in the file,” Oshel wrote.

Oshel further wrote that HRSA’s view will “seriously hinder use of the file for important public policy research.”

“For example, it will be impossible to identify state licensing boards which are not taking action to protect the public from physicians with records of repeated malpractice payments and serious sanctions against their hospital clinical privileges based on the quality of their care or their behavior,” he wrote.

As he notes in his letter, Oshel served as associate director for research and disputes for HRSA’s Division of Practitioner Data Banks, which operates the National Practitioner Data Bank, from 1997 *(updated) until his retirement in 2008. Among other duties, he personally designed the Data Bank’s Public Use File in about 1995 and oversaw its development and quarterly updating.

AHCJ President Charles Ornstein said Oshel’s letter reaffirmed what AHCJ and five other journalism groups are fighting for. He said the Public Use File has been a vital tool for journalists writing about insufficient oversight of physicians in their states. 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.

“It is abundantly clear that HRSA made a mistake in taking the Public Use File offline, putting physicians’ interests ahead of patient safety,” Ornstein said. “With Robert Oshel’s detailed statement, we call on HRSA and HHS Secretary Kathleen Sebelius to make the right decision and restore access to the public version immediately.”

In his letter, Oshel also criticized the process that HRSA introduced as an interim way for reporters and researchers to request data from the data bank. To get information, individuals must disclose the focus of their work and HRSA officials must approve – or reject the request. If the request is granted, HRSA officials will be the arbiters of what data fields an individual needs to complete the research.

“I believe HRSA’s current policy is contrary to the law,” he wrote.

* There was a typo in the date in an earlier version of this post.

Earlier coverage

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 turn to Sebelius for access to National Practitioner Data Bank file

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The Association of Health Care Journalists and five other journalism groups appealed to Health and Human Services Secretary Kathleen Sebelius to intervene in the dispute over the Public Use File of the National Practitioner Data Bank and restore access to this important data tool.

HHS Sec. Kathleen Sebelius spoke to journalists at Health Journalism 2010 in Chicago.

HHS Sec. Kathleen Sebelius spoke to journalists at Health Journalism 2010 in Chicago.

AHCJ was joined in its letter to Sebelius by 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. The groups have more than 15,000 members.

The U.S. Health Resources and Services Administration removed the Public Use File (PUF) from the data bank website earlier this month because officials believe it was used to identify physicians inappropriately.

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 made a public version of it available without identifying information about the health providers.

Letter to Sebelius (PDF)

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

Letter to members of Congress (PDF)

HRSA letter to Bavley (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

Get the NPDB public use file

Investigative Reporters and Editors, working with the Association of Health Care Journalists and the Society of Professional Journalists, has posted the data for download, free to the public.

The groups took issue with a letter written last week by HRSA administrator Mary Wakefield, in which she defended the decision to remove the Public Use File from the agency’s website.

“We believe the stance taken by administrator Wakefield and HRSA staff is overly restrictive based on the law governing the data bank. We do not dispute that federal law precludes the administration from sharing confidential information from data bank reports, including the person being reported and the institution filing the report. We disagree with HRSA that the Public Use File, removed from the web earlier this month, did this.”

The letter also criticized HRSA’s research protocol under which reporters can now request data from the data bank as intrusive and unfair. The agency’s new web page about the Public Use File and how to make requests for data says: “At this time, a researcher must provide a proposal (including table shells) for their need of data. DPDB will review the request and approve or deny the request for data. DPDB will provide only the variables needed to complete the research.”

“We find it troubling that a federal agency now wants to judge the quality of reporters’ stories and make individual decisions about which one is worthy –perhaps putting officials in the position of denying requests that may make HRSA or the data bank look poor,” the letter said. “We don’t see any provisions in the act governing the data bank that gives HRSA the authority to deny research data as long as it doesn’t identify individuals.”

The groups said they stood ready to meet with Sebelius and work with her on a solution that will provide continued access to the Public Use File.

“Reporters have exposed dangerous lapses in oversight by state medical boards, prompting legislation to increase transparency and improve patient protections,” the letter said. “We hope you will agree that this is a matter of public concern and that you will urge HRSA to change course and immediately restore the Public Use File of the data bank.”

The letter to Sebelius followed a request for assistance to members of Congress last week.

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.