Journalism organizations ask HRSA to clarify how it will exercise restrictions

The Association of Health Care Journalists and five other journalism organizations asked federal health officials this week to specify how they plan to enforce new rules governing access to the public version of the National Practitioner Data Bank.

In a letter to Mary Wakefield, administrator of the Health Resources and Services Administration, the groups continued to express disappointment in the agency’s restrictions on the data bank’s Public Use File. In the past, reporters have used the file to expose faulty oversight of doctors by state medical boards.

The Health Resources and Services Administration removed the public file from its website in September after a complaint from a doctor who complained information on him was used inappropriately. The agency republished the data last month 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.

In the letter to Wakefield, sent Wednesday, the groups asked for answers to several questions:

1. What process will HRSA follow to determine whether a reporter has violated the agreement? If a reporter identifies a doctor in a story and also had access to the Public Use File, how will the agency find out whether the reporter used the file to identify the doctor or got the information from another source? Will HRSA ask to see notes and talk to sources? What will the agency do if reporters decline to discuss their reporting methods beyond what appears in their stories?
2. What recourse will reporters have if they believe they have been unfairly barred from future access to the file?
3. If you ask a reporter to return data, will you take any steps to ensure the data hasn’t been copied or saved elsewhere? If so, what will those steps be?
4. How will HRSA address stories written based on copies of the Public Use File downloaded before Sept. 1? Such files are available without restriction on the websites of journalism organizations, and reporters do not need to sign any agreement to access them. Will reporters face penalties if they use the information in a way that HRSA objects to?

AHCJ president Charles Ornstein said he continues to believe that the new restrictions are both ill-advised and likely unconstitutional. But he added, “If HRSA intends to stick to them, it’s imperative that journalists understand how they will be enforced before deciding whether to use this information.”

Other groups signing the letter were 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.

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

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

Related

• Secrecy around data bank protects ‘Practitioner No. 222117′
• Numbers reveal how often, or how rarely, states check doctors’ disciplinary records
• Agency’s restrictions on data about disciplined doctors continue to get attention
• Journalism groups protest HRSA restrictions to Sebelius

Secrecy around data bank protects ‘Practitioner No. 222117′

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.

Numbers reveal how often, or how rarely, states check doctors’ disciplinary records

How often does your state medical board search doctors in the National Practitioner Data Bank?

Surprisingly not often, according to data provided to the Association of Health Care Journalists by the U.S. Health Resources and Services Administration, which runs the data bank.

AHCJ and other media groups have been pushing the government to restore unfettered access to the Public Use File of the data bank, citing important stories that journalists have written about lax oversight of doctors by state medical boards.

State medical boards have access to complete information within the data bank about a doctor’s disciplinary history, hospital sanctions and malpractice payouts. The Public Use File, which had been available to reporters and researchers for years, provided the same information without identifying information about the doctors involved.

HRSA removed  the Public Use File from its website on Sept. 1 following complaints from a doctor that a reporter from The Kansas City Star inappropriately used it to identify him. The agency restored the file last week, but with new restrictions that seek to bar reporters from using it with other data sets to identify physicians. AHCJ and other media groups call the new restrictions unworkable and an unconstitutional prior restraint.

AHCJ requested data from HRSA so reporters could see how often their states check the backgrounds of MDs and DOs, as well as interns and residents. The numbers are available in two different charts. Beyond that, HRSA said, three state boards have a relationship with HRSA in which they automatically get updates when new information is entered on a physician. They are: Nevada (DO), Oregon (MD) and Pennsylvania (MD).

“I encourage journalists to look up their state medical boards in our chart and see how often they consult the data bank,” AHCJ President Charles Ornstein said. “If they are not looking physicians up, they should be asked how they are sure they are protecting the public from dangerous or incompetent doctors.”

HRSA spokesman Martin Kramer said in an email that,

HRSA is also working proactively to protect the public by reducing potential barriers for State licensing boards to receive NPDB information.

One step that HRSA took in the past year was to conduct a small pilot study with the Federation of State Medical Boards to determine if hospitals and medical malpractice payers send a copy of  the NPDB report, as required, to the licensing board.

To assure that Medical Boards receive the hospital and medical malpractice payment reports, in January 2012 the reporters (hospitals and medical malpractice payers) will be able to send an electronic copy to the State medical board through the NPDB.

We believe this change will be cost saving and time effective for the reporters and State medical boards.”

For more background, this timeline tracks the story:

More journalism groups join effort to restore access to National Practitioner Data Bank

Three additional journalism organizations have joined the campaign calling for the Obama administration to restore access to a public version of the National Practitioner Data Bank. And letters are going out to key members of Congress asking for their assistance.

The National Association of Science Writers, Reporters Committee for Freedom of the Press, and National Freedom of Information Coalition have signed the letter, along with the Association of Health Care Journalists, Investigative Reporters & Editors, and the Society of Professional Journalists.  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.

“The Public Use File, while it didn’t identify doctors by name or address, provided invaluable information about the functioning of state medical boards and hospital disciplinary systems,” said the letter from the groups to members of Congress. “Reporters for years have used the data to identify holes in their states’ regulatory systems that have led to patient harm. As a result of these stories, states have enacted new legislation and medical boards have taken steps to investigate problem doctors.”

The groups also provided the representatives and senators with details of major stories written with the assistance of the Public Use File and descriptions of the changes that resulted.

Finally, the letter once again expressed concern that HRSA sent a threatening letter on Aug. 26 to Alan Bavley, a health reporter at the Kansas City Star. The letter, signed by Division of Professional Data Banks director Cynthia Grubbs, said that Bavley could be subject to a civil monetary penalty of up to $11,000 if he identified a physician based upon confidential information in the data bank. The threat came even though other reporters have done the same thing for years without penalty.

In news reports, HRSA acknowledged that the letter–and the agency’s subsequent decision to remove the Public Use File–was prompted by a single complaint: from the lawyer of a doctor who was the subject of Bavley’s story.

Although HRSA said in some news reports that it will not pursue sanctions against Bavley, he has not received an apology.

“Without stories written by our members, it’s fair to say that some unsafe doctors would continue to be practicing with clean licenses and patient protection legislation in several states likely would not have been enacted,” the letter said.

Journalism organizations offer data government blocked from public

Another development in the protest by three key journalism groups to the Obama administration’s decision to block public access to a public database of physician discipline and malpractice: Now, 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 data are posted for the entire U.S. in the original text format with documentation. IRE has also made available state-by-state Excel spreadsheet files.

On Thursday, the groups sent a letter protesting the decision to pull offline a the Public Use File of the National Practitioner Data Bank. The government has made this file available online for years, and reporters have used it to call attention to lax oversight of physicians across the country.

The public version of the database does not identify physicians by name or address, but it does provide other useful information about hospital sanctions, malpractice payouts and state disciplinary actions against every doctor in the country.

“We applaud IRE for making this data available for free to the media, researchers and the public,” said Charles Ornstein, AHCJ’s president. “While the government has decided that this ‘public use file’ should no longer be public, our organizations believe that it continues to be a critical resource. I encourage reporters, even those who have never used it before, to look for stories within it now.”

Journalists have used the data for years to draw attention to troubled physicians and state inaction. Recent examples include the St. Louis Post Dispatch, the Duluth (Minn) News-Tribune and The Kansas City Star. Other examples over the years have included The Hartford (Conn.) Courant and the Raleigh, N.C., News & Observer.

The U.S. Health Resources and Services Administration threatened a reporter from The Kansas City Star with financial penalties if he proceeded to write a story about a local neurosurgeon using information he gleaned from the public version of the database on the agency’s website. The newspaper published its story anyway on Sept. 4. The doctor’s attorney complained to the agency, prompting officials to remove the database from its website on Sept. 1.

Several news outlets - The New York Times, Los Angeles Times, Reuters and the St. Louis Post-Dispatch - are following the story.

AHCJ, other journalism organizations protest removal of data from public website

The Association of Health Care Journalists, joined by the Society of Professional Journalists and Investigative Reporters and Editors, sent a letter to the Obama administration today protesting its decision to pull offline a public database of physician discipline and malpractice payments.

AHCJ, SPJ and IRE called for the government to immediately restore access to the Public Use File of the National Practitioner Data Bank. The government has made this file available online for years, and reporters have used it to call attention to lax oversight of physicians across the country.

Pursuant to the law, the public version of the database does not identify physicians by name or address, but it does provide other useful information about hospital sanctions, malpractice payouts and state disciplinary actions against every doctor in the country.

As an example, the database would allow a reporter or researcher to discover that certain, unnamed physicians have been sanctioned repeatedly by their hospitals but never were disciplined by their state’s medical board. It would also be possible to find doctors with lengthy trails of malpractice who continued to enjoy clear licenses.

The groups also expressed their deep disappointment that the U.S. Health Resources and Services Administration threatened a reporter from The Kansas City Star with financial penalties if he proceeded to write a story about a local neurosurgeon using information he gleaned from the public version of the database on the agency’s website. The newspaper published its story anyway on Sept. 4. The doctor’s attorney complained to the agency, prompting officials to remove the database from its website on Sept. 1.

The government said that it had to act now because reporters were able to link information in the data bank to specific doctors, and the law prohibits the public use file from identifying doctors. A HRSA spokesman said the data bank will be offline for at least six months and may never return unless the physician privacy concerns are adequately addressed.

AHCJ President Charles Ornstein said he was puzzled by HRSA’s sudden action because reporters have used the public version of the data bank for years to assist in their reporting and learn additional details about physicians they already had been researching.

“We are troubled that the Obama administration appears to have placed the interests of physicians ahead of the safety of patients,” Ornstein said. “Attempting to intimidate a reporter from using information on a government website is a serious abuse of power.”

Stories written by reporters using the public version of the National Practitioner Data Bank have drawn attention to troubled physicians and state inaction. Recent examples include the St. Louis Post Dispatch, the Duluth (Minn) News-Tribune and the Star. Other examples over the years have included The Hartford (Conn.) Courant and the Raleigh, N.C., News & Observer.

Some of these stories have resulted in new legislation and other steps that protect patients, by increasing transparency and sometimes toughening requirements on doctors.

The groups wrote that if HRSA determines the public version of the database violates the law in any way, it should seek swift legislative changes to remedy the problem and once again make the database available.

“In one stroke, the very administration that promised greater transparency not only excludes information of obvious public value to patients across this country but threatens legal action against a reporter for using public records,” said SPJ President Hagit Limor. “This is clearly outrageous.”

IRE President Manny Garcia said, “The removal of the Public Use File - whose very name means for public use - eliminates a valuable tool for journalists whose goal is to educate and protect the public. This database has allowed reporters to uncover flaws that have toughened legislation, and without a doubt, saved the lives of patients across the country.

“We are also stunned that a public servant has the hubris to threaten a health care reporter for doing his job. HRSA should be delighted that journalists are using public information to help saves lives, but in this instance the response is: get lost or get fined.”

Paper seeks redacted details from Vt. medical board

Burlington Free Press reporter Adam Silverman writes that his newspaper is seeking the release of certain details redacted from a medical board inquiry into what he calls “allegations that a Vermont doctor engaged in conduct that might have exposed the public to harm” related to a lawsuit filed by a former board director alleging that he was forced to resign his post in 2010 after authorizing two inquiries despite objections from state health officials.

The missing information includes the exact nature of two doctors’ “official” positions with the State of Vermont, as well as the dates of the cases in question. Silverman found that the attorney who filed the suit blacked out the information from the public version because he “didn’t want to risk improperly disclosing details of Medical Practice Board cases before the state became involved in defending the lawsuit.”

In court Monday, Assistant Attorney General David Groff told Toor that judges often have to balance the public’s right to know against competing private interests — in this case, that of doctors whose good names could be besmirched by “spurious” accusations. For the Wargo lawsuit, though, Groff added, state lawmakers already have charted the course: Information about Medical Practice Board inquiries becomes public only if an investigation results in formal accusations. Here, the investigation is ongoing, he said.
…
No one argued for releasing the records at Monday’s hearing, but the Free Press has written in letters to the court that the material should be unsealed because “there is an inherent public interest” in learning about a possible threat of harm to the public.

Duluth duo investigates disciplined doctor

The latest crop of disciplined doctors stories, spearheaded by the work of ProPublica’s Charles Ornstein and Tracy Weber, has focused on problem caregivers in the aggregate, with liberal use of anecdotes. Now, Brandon Stahl and Mark Stodghill of the Duluth News Tribune have assembled an investigation that proves there’s still plenty of room for a disciplined docs piece with just one subject.

Working from court records and a state reprimand, the Minnesota duo found that Stefan Konasiewicz, a highly paid neurosurgeon who practiced in the city for much of the past decade, was the target of nigh on a dozen malpractice suits.

When he moved from Duluth about three years ago, Konasiewicz left behind two dead patients, one woman paralyzed from the neck down and six others who say his treatment caused them serious physical harm.

His former employer, St. Luke’s hospital, was aware of the harm Konasiewicz was alleged to have caused and yet continued to let him practice, according to records obtained and interviews conducted by the News Tribune.

The exhaustive report that follows is a tribute to their investigative tenacity, loaded with quotes from colleagues who long questioned Konasiewicz’ judgment and a careful, painstaking rundown of the malpractice cases filed against the embattled surgeon.

For more on how they searched court records to find malpractice cases, and on why malpractice suits in the state face such high hurdles, see Stahl’s sidebar.

Critics say New York soft on disciplining dentists

The (Syracuse, N.Y.) Post-Standard’s James Mulder has found that, when it comes to cracking down on less-than-competent dentists, his state appears pretty lax.

In New York, the 18,000 dentists are among, Mulder writes, the 800,000 people from “48 professions — from acupuncturists to veterinarians — policed by the state Education Department’s Office of Professional Discipline.” Last year, the board disciplined 24 of them, revoked the licenses of two and accepted the surrender of four more licenses.

The office took 1.54 disciplinary actions per 1,000 dentists last year, about half the rate of disciplinary actions taken against medical doctors and physician assistants. Discipline against doctors accused of misconduct in New York is handled by a different arm of state government — the state Health Departments Office of Professional Medical Conduct.
Also, the number of serious disciplinary actions against New York dentists declined by 53 percent between 2006 and 2010.

N.Y. reporter finds local doctors in ProPublica database

Writing for Gannett’s Binghamton, N.Y., Press & Sun-Bulletin, Julia Hunter localized ProPublica’s investigation of pharmaceutical companies and disciplined doctors by starting with the nonprofit’s database, then adding some investigation of her own. She names names, talks with local physicians and uncovers anecdotes.

There are plenty of tales of medical malfeasance, including that of Dr. Robert Douenias, who lied about a previous criminal conviction when applying for a New York medical license. Until recently, Douenias had spoken on behalf of Avodart to prevent prostate cancer. “He said he stopped because he didn’t want to be associated with the controversial practice of speaking on behalf of pharmaceutical companies.” The FDA has since “voted against the approval of Avodart as a cancer risk-reduction method.”

Hospital management says it wasn’t aware of the physician’s previous conviction, and that it wouldn’t be looking into it further. After all, Hunter writes, “99 percent of patient surveys indicated a ‘good’ or ‘excellent’ experience with Douenias.”

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