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:

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:

Journalism groups protest HRSA restrictions to Sebelius

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.

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.

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

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.

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

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.”

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

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.

Journalists, researchers renew call for access to data during public call

Officials at the U.S. Health Resources and Services Administration held a conference call on Thursday to seek input from the public about the future of the National Practitioner Data Bank’s Public Use File. Reporters and researchers had a similar response: Bring it back.

HRSA removed the public version of the doctor discipline database last month because officials said they were concerned a reporter had used it inappropriately to identify physicians.

But journalists, led by AHCJ president Charles Ornstein, and researchers told HRSA officials they believe the agency overreacted or was misinterpreting the law. Ornstein and others pointed out that  the public version of the data bank had been used by reporters to expose faulty oversight of physicians by state medical boards, leading to greater transparency and additional patient protections.

“I implore you not to go backwards and implore you not to increase secrecy but rather to restore the Public Use File as it was,” said John Ensslin, president of 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. Pursuant to the law, the public version of the database did not identify physicians by name or address, but did provide other useful information about hospital sanctions, malpractice payouts and state disciplinary actions against doctors across the country.

HRSA says it took the Public Use File offline after a lawyer representing a physician complained that Kansas City Star reporter Alan Bavley had obtained information improperly from the data bank. HRSA threatened Bavley with monetary sanctions if his paper ran the story. His article ran Sept. 4, prominently featuring the doctor and using the Public Use File to fill in details about him. HRSA did not pursue fines against Bavley.

Six national journalism organizations, as well as consumer groups and academic researchers, have formally objected to HRSA’s decision to take the database off its website. Sen. Charles Grassley, R-Iowa, condemned the decision in a letter to HRSA Administrator Mary Wakefield and HHS Secretary Kathleen Sebelius.

“The idea of taking down the Public Use File is really a big deal. There is no substitute for having it,” said Sidney Wolfe, M.D., director of Public Citizen’s Health Research Group. “The case can’t be stronger for having the data bank in the form that it used to be in.”

Cynthia Grubbs, director of the division of Practitioner Data Banks, gave no commitment about whether the Public Use File would return or in what format.

“We understand you have concerns with that decision,” she said at the beginning of the call. “We are trying to balance the need to protect confidentiality under the data bank statute with our continued desire to shine a bright light” on the quality and safety of patient care across the country.

Grubbs asked a series of questions about how HRSA could provide usable information on its website, including charts and graphs.

But Jeremy Kohler, a reporter for the St. Louis Post-Dispatch, said, “It is not even close to a substitute for restoring the raw data that was on the data bank before.”

‘On The Media’ covers NPDB controversy

This week’s “On The Media” show features AHCJ President Charles Ornstein discussing the public use file of the National Practitioner Data Bank.

Listen to On The Media

As regular readers of Covering Health know, this is an important file that has been used by patient safety advocates, reporters and other researchers to report on medical disciplinary actions, lax oversight and loopholes at state medical boards. The Health Resources and Services Administration, part of the federal Department of Health and Human Services, took the file offline on Sept. 1 following a complaint from one doctor’s lawyer.

AHCJ and other journalism groups have protested the removal of the file and have called for it to be returned to the public site. U.S. Senator Charles Grassley has joined the protest with a letter to the HRSA administrator that demands answers to his questions about why this file is no longer publicly available.

Duff Wilson of The New York Times wrote a blog post about the file being taken offline and Grassley’s letter. For complete coverage of the issue, please see AHCJ’s Right to know news.

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.”

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