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

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:

Public hospitals, not nonprofits, shoulder burden of charity care

Writing in the Contra Costa Times, Sandy Kleffman reports that while nonprofit hospitals in the East Bay are given millions in tax breaks, “The responsibility of caring for the indigent falls largely on the region’s public hospitals.”

Kleffman’s findings are based on her analysis of publicly available California Office of Statewide Health Planning and Development reports, documents which she learned to access and process at a September webinar led by AHCJ board president and ProPublica senior reporter Charles Ornstein.

Her analysis revealed a substantial imbalance in the numbers, especially between public hospitals and nonprofits. For example, Contra Costa’s county hospital provided more than three quarters of the total amount of charity care given in the country in 2010, while the six nonprofits together accounted for just under 23 percent.

For their part, representatives of nonprofit hospitals protested that the numbers do not take into account the other community benefits they provide, nor are they adjusted to compensate for the differences in demographics across each institution’s patient pool.

For more on what went into Kleffman’s report, see her sidebar on “How we made comparisons.”

Grassley criticizes federal agency over removal of doctor discipline data

U.S. Sen. Charles Grassley (R-Iowa) sent a letter today to the Health Resources and Services Administration, criticizing its decision to remove a public version of the National Practitioner Data Bank, which has helped reporters and researchers to expose serious gaps in the oversight of physicians.

“Shutting down public access to the data bank undermines the critical mission of identifying inefficiencies within our health care system – particularly at the expense of Medicare and Medicaid beneficiaries,” Grassley wrote to HRSA Administrator Mary Wakefield. “More transparency serves the public interest.”

Grassley, ranking Republican on the Senate Judiciary Committee, continued: “Generally speaking, except in cases of national security, the public’s business ought to be public. Providers receive billions of dollars in state and federal tax dollars to serve Medicare and Medicaid beneficiaries. Accountability requires tracking how the money is spent.”

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 last month 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’s letter comes days after the official who created the Public Use File in the mid-1990s and managed it until 2008 said that HRSA was “erroneously interpreting the law” governing the data bank by removing the public version.

In a letter to AHCJ, Robert 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.”

In his letter to Wakefield, Grassley was sharply critical of a threat HRSA made to Kansas City Star Reporter Alan Bavley. After a complaint from a lawyer representing a doctor, HRSA threatened Bavley with civil money penalties if he ran a story based on information from the data bank. HRSA did not pursue the fine, officials later said, because Bavley did not have access to confidential information. But the agency did remove the file from its website.

“It seems disturbing and bizarre that HRSA would attempt to chill a reporter’s First Amendment activity with threats of fines for merely ‘republishing’ public information from one source and connecting it with public information from another. A journalist’s shoe-leather reporting is no justification for such threats or for HRSA to shut down public access to information that Congress intended to be public,” Grassley wrote.

Grassley asked Wakefield a series of questions and asked for responses by Oct. 21.

AHCJ President Charles Ornstein called on the Obama administration once again to restore access to the Public Use File. “Using this file, reporters across the country have prepared stories that have exposed holes in the oversight of doctors – and those stories have led to greater transparency and improved patient protections,” he said. “This information needs to be restored now.”

Cash-strapped Ill. goes after hospitals’ nonprofit status

A New York Times article written by Bruce Japsen, an independent journalist writing for the Chicago News Co-Op, digs into Illinois’ recent challenges to the tax exemptions granted to a trio of prominent hospitals by virtue of their nonprofit status. The challenge, inspired in part by the state supreme court’s willingness to uphold the revocation of the nonprofit status of an Catholic hospital in Urbana last year, could expand to more than a dozen other institutions as the state scrambles to cover a looming revenue shortfall.

In its case, the state alleges that the hospitals aren’t providing a high enough proportion of charity care to fulfill the mission of a nonprofit.

All three of the hospitals the state is focusing on provided free and discounted medical care that ranged from 0.96 percent to 1.85 percent of patient-care revenue, according to the revenue department. The state also said that each one had been operating as a “for profit” business when the state’s Constitution says that “only charities are entitled to a tax exemption.”

The hospitals, for their part, point to the other benefits they provide the community, such as neonatal intensive care and burn units, that don’t always bolster their bottom lines. Advocates answer that paying taxes provides a community benefit as well, one that can readily be measured in dollars and cents. And Japsen found that paying those taxes doesn’t even seem to preclude the provision of charity care, especially at the parsimonious levels provided by the hospitals currently targeted by the state.

“The relative amounts of charity care provided by not-for-profit tax-exempts are not materially different from the amount provided by for-profit hospitals,” said Jim Unland, a longtime analyst of Illinois’ health care industry and president of the Health Capital Group, a consulting firm in Chicago. “This raises the issue of whether the tax-exempts are getting prejudicially favorable treatment.”

The three hospitals whose tax exemptions have been stripped by the state department of revenue plan to challenge the action in court, and state hospital organizations are gearing up for a lobbying push they hope will put their tax status on firmer ground.

Reporter digs into nonprofit hospital CEO pay

At The Atlanta Journal-Constitution’s M.B. Pell has assembled a look at CEO pay at local nonprofit hospitals. Pell hits hard at the top of the story, pointing out that top executives are pulling in ever-growing six- and seven-digit salaries in a time of cutbacks and job losses, and demonstrating that the state loses millions in tax revenue thanks to the hospitals’ exempt status.

It’s the sort of meaty accountability work that we expect to see on a tax filing-based story. Slightly more surprising? Pell endeavored to complete the picture with a healthy dose of perspective, reminding readers that in urban areas like Atlanta, even nonprofit hospitals are often complicated billion-dollar conglomerates. In Georgia, Pell writes, “hospitals report to 27 state and federal agencies and engage in multimillion-dollar building projects. The larger hospital systems have billions in revenue and are among the largest employers in their communities. Many also operate for-profit subsidiaries.” Those “billions” provide valuable context when discussing a $600,000 pay package.

Hospital executives and industry experts consider the examination of salaries a titillating issue for the public, but a subject lacking in substance.

Even if salaries were cut dramatically, the savings would not add significantly to hospitals’ charitable missions, Parker said.

Tax exempt hospitals in the metro area provided $932 million in charitable care in 2009, according to an analysis of financial survey data reported to the state by hospitals. The hospitals spent $61 million to pay officers, directors, trustees and key employees, tax forms show.

Of the uncompensated care, nearly a third, or $287.5 million, was provided by one hospital, Grady Memorial. Grady CEO Michael Young, who left the hospital in June, made $833,646 in 2009.

But for-profit hospitals in the Atlanta area pay taxes and they provided uncompensated care totaling $87 million in 2009, according to financial survey data.

For a counterpoint, Pell turned to a few outspoken patient advocates and a 2009 study conducted by University of Connecticut researchers. It’s another data point that demonstrates the depth of Pell’s research.

CEOs of nonprofit hospitals in Connecticut who increased the number of beds at their facilities by 10 percent typically got pay increases of just under 8 percent, shows a study of nonprofit hospitals by two professors at the University of Connecticut.

A 10 percent increase in the amount of charity care provided, however, typically resulted in a 1.5 percent decrease in the CEO’s pay, the study shows.

Pell’s story takes the national picture into account, but if you’re just looking to get up to speed on the national debate over nonprofit hospitals, charity care and tax exemption as it relates to executive pay, I recommend you scroll down to the final subhead: “Eyeing tax exemption.”

ProPublica investigates ties between doc groups, industry

With an assist from Sen. Chuck Grassley, ProPublica senior reporters Tracy Weber and Charles Ornstein, AHCJ’s board president, have published their latest data-heavy investigation (USA Today version). This time, their journey into the myriad avenues pharmaceutical companies pursue to influence physicians has taken them into the world of professional societies and annual conferences. The duo writes that despite the power of these groups, their dependence upon millions and millions of dollars in industry funding has often slipped under the radar.

Professional groups … are a logical target for the makers of drugs and medical devices. They set national guidelines for patient treatments, lobby Congress about Medicare reimbursement issues, research funding and disease awareness, and are important sources of treatment information for the public.

Their strongest anecdote comes from the Heart Rhythm Society, a group which, in 2010, pulled in about $8 million – half their total income – directly from manufacturers of the drugs and devices their members specialize in prescribing for, or implanting in, patients. The society has started to disclose these relationships, but perhaps not to limit them, the reporters write. “’This is our business,’ said Dr. Bruce Wilkoff, the incoming society president. ‘We either get out of the business or we manage these relationships. That’s what we’ve chosen to do.’”

The companies also pay two-thirds of the society’s board members speaking or consulting fees, a situation Weber and Ornstein found is far from unusual. In addition to these financial conflicts, the reporters gathered some fascinating examples of just how deep industry influence can run. My personal favorite comes from the conference of a well-known collection of cardiologists.

Last month, the American College of Cardiology attached tracking devices to doctors’ conference ID badges. Many physicians were unaware that exhibitors had paid to receive real-time data about who visited their booths, including names, job titles and how much time they spent.

For more examples, I recommend Robert Durrell’s photographs from the 2011 Heart Rhythm Society annual conference, which show dozens of industry-sponsored objects alongside the amount of money each company paid for that particular privilege. Dan Nguyen and Nicolas Rapp put together an infographic that expands upon a similar theme.

Much of the disclosure data the ProPublica team depended on for their reports was released in response to a request for informationGrassley sent out in late 2009. His investigation has started to yield some preliminary results.

There are fledgling efforts to push medical societies toward stricter limits on industry funding: 34 groups have signed a voluntary code of conduct calling for public disclosure of funding and limits on how many people on guideline-writing panels have industry ties.

“The general feeling is that the societies need to be independent of the influence of companies,” said Dr. Norman B. Kahn Jr., chief executive of the Council of Medical Specialty Societies, which helped draft the code.

Senators join fight to open Medicare claims data

Two senators have joined the effort to open up the Medicare claims database that reveals what payments doctors get through the system.

Covering Health readers might remember that Dow Jones & Co. – parent company of The Wall Street Journal – filed a lawsuit in January in its attempt to overturn an injunction that “prevents the public from knowing how much taxpayer money individual doctors receive from the Medicare program,” according to a press release.

Republican Sen. Chuck Grassley of Iowa and Democrat Sen. Ron Wyden from Oregon are pushing legislation to overturn the same 1979 injunction.

Neither senator, nor Dow Jones, seek the release of private patient data. The Medicare claims data has proven useful in fighting fraud and abuse in the system, allowing journalists or investigators to identify anomalies.

Grassley said “he was prompted in part” by articles in The Wall Street Journal about the Medicare database and fraud. Wyden, who spoke at Health Journalism 2009, said he plans to discuss joining forces with Grassley, saying, “I believe we can have a bipartisan bill on this.”

Preventing health care fraud was the subject of a Senate finance committee hearing on Wednesday, where Grassley and Wyden heard from the director of the Center for Program Integrity, Centers for Medicare & Medicaid Services, and from Daniel Levinson, inspector general for the U.S. Department of Health and Human Services. Their statements, as well as video of the hearing, are available online.

Four states refuse to name hyper-prescribing docs

As part of his war against overprescription and fraud, Sen. Charles Grassley asked states to share data on doctors who  write colossal amounts of prescriptions for drugs covered by Medicaid. At this point, at least four states are holding out, and Pharmalot’s Ed Silverman is naming names. Montana, Alabama, Wisconsin and New Jersey have declined Grassley’s request, and a commenter says Michigan, which didn’t name names, belongs on the list as well.

Silverman attempted to contact the four holdouts he listed and gleaned what other information he could from other published sources. The reasons officials gave are, for the most part, well-worn: The data’s too expensive to collect, it doesn’t have enough context and, according to Alabama, might wrongly pinpoint physicians with legitimate reasons for prescribing all those drugs.

In reply, Silverman lets the already disclosed data speak for itself:

… in Florida, the top Zyprexa provider wrote 1,356 scrips for 309 patients in 2008 and 1,238 for 236 last year, compared to the 10th-highest prescriber each year who wrote 256 for 55 patients and 192 scrips for 30 people, respectively (more here). In Texas, one doc authorized 13,596 filled scrips for Xanax in 2008, and increased that to 14,170 filled in 2009. The doc who occupied the lowest ranking in the top 10 prescribers wrote just 1,444 and 1,696, respectively. The list goes on…

Related

AHCJ members can read more about getting Medicaid prescribing data from states in this article by Christina Jewett. Jewett, now at CaliforniaWatch, requested Medicaid data from a number of states for an investigation for ProPublica.

Fraud-busting contractors slow to refer cases

Despite recent high-profile busts, the private contractors hired by Medicare to sniff out fraud cases and refer them to law enforcement seem to be lagging, according to recent government reports. The Associated Press’ Ricardo Alonso-Zaldivar reported on investigations that found that contractors took an average of 178 to refer fraud cases, and that the government was only able to recover a small fraction of the money identified as lost to fraudsters (OIG report | Testimony).

As this letter summarizing the congressional investigation shows, Iowa Sen. Chuck Grassley is on the case. He’s looking to figure out how much the fraud hunters are paid ($102 million in 2005) and how that balances with their benefit to taxpayers ($55 million recovered by the feds in 2007). The numbers are tricky, Alonso-Zaldivar writes, because fraudulent claimants have a habit of closing up shop and disappearing as soon as they’re notified of the pending investigation. Thus, the fraudbusters can’t be blamed entirely for the collection failures, though their tardy referrals are at least partially responsible.

The contractors have widely different track records. One identified $266 million in overpayments in 2007, while another found just $2.5 million, the Health and Human Services inspector general said in May.

Earlier, the inspector general found gaping differences in the number of new cases the contractors generate for law enforcement. Some had hundreds of cases, while others were in the single digits. Most were doing a poor job at spotting new fraud trends, with “minimal results from proactive data analysis,” the inspector general concluded.

The Obama administration says it’s aware of the problem and is close to completing a reorganization of the contractors, to consolidate their work, define their jurisdictions more clearly, and help them coordinate better with claims processors and law enforcement.

The new “Zone Program Integrity Contractors” will cast a somewhat wider net, and be more closely monitored by federal health officials.

Related

• Investigating health care: Essential public records
• Duff Wilson: Investigating health care fraud
• Reporting on the business of health care
• Center for Public Integrity writer says listserv led to Medicare-fraud story

(Hat tip to Ricardo-Alonzo Zaldivar for providing a copy of the Grassley letter)

Grassley digs into journal ghostwriting practices

Ben Comer of Medical Marketing & Media reports that Iowa Republican Senator Chuck Grassley sent a letter to eight prominent medical journals, asking them to share their editorial policies regarding the disclosure third parties involved in the creation of journal articles, as well as the penalties they have set for authors who don’t follow those policies. Grassley asked the journals to respond by July 22. Read the senator’s press release here.

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