The debacle of the national practitioner data bank.
Article Type: Editorial
Subject: Medical errors (Control)
Medical personnel (Malpractice)
Medical personnel (Control)
Author: Huntoon, Lawrence R.
Pub Date: 12/22/2011
Publication: Name: Journal of American Physicians and Surgeons Publisher: Association of American Physicians and Surgeons, Inc. Audience: Academic Format: Magazine/Journal Subject: Health care industry Copyright: COPYRIGHT 2011 Association of American Physicians and Surgeons, Inc. ISSN: 1543-4826
Issue: Date: Winter, 2011 Source Volume: 16 Source Issue: 4
Geographic: Geographic Scope: United States Geographic Code: 1USA United States
Accession Number: 274521786
Full Text: The National Practitioner Data Bank (NPDB) was created by the Health Care Quality Improvement Act of 1986 (HCQIA). (1) Its stated purpose was: "... to restrict the ability of incompetent physicians to move from State to State without disclosure or discovery of the physician's previous damaging or incompetent performance." (2)

NPDB Information Confidential

Information reported to the NPDB is considered confidential. HCQIA [section]11137(b)(1) provides, in part: "Information reported under this subchapter is considered confidential and shall not be disclosed (other than to the physician or practitioner involved) except with respect to professional review activity...." HCQIA also provides for public disclosure of information, provided that the data are in a form that would not permit identification of a specific physician/practitioner or entity. Such de-identified data are considered non-confidential: "Information reported under this subchapter that is in a form that does not permit the identification of any particular health care entity, physician, other health care practitioner, or patient shall not be considered confidential." (3)

De-identified Information Identifiable

If the information in the NPDB Public Use File (PUF) is compared with information in publicly available documents, such as court documents, then the information in the databank can be linked to a specific physician. This type of comparison analysis allows journalists, attorneys, and others to discover information which otherwise may not be discoverable.

Malpractice settlements, for example, are reportable to the NPDB. Malpractice settlements may have confidentiality agreements that by definition would not be in public documents. However, through diligent analysis, one may be able to link a single publicly available court document with certain NPDB data, and then the physician's entire NPDB report can be revealed.

Former NPDB Official Provides Information

In a statement dated Oct 2, 2011, a former NPDB official acknowledged his role in providing extracts from the NPDB PUF to a reporter for the Kansas City Star:

Indeed, the Association of Health Care Journalists has posted a list of examples in which reporters have used the NPDB PUF to research and write stories concerning individual physicians. (5)

HRS A Threatens Reporter

In a letter dated Aug. 26,2011, the director of the Division of Practitioner Data Banks, Cynthia Grubbs, R.N., J.D., wrote to Kansas City Star health reporter Alan Bavley and threatened civil monetary penalties for any violation of the confidentiality regulations governing the NPDB. The letter stated:

The letter goes on to state: "Any person who violates paragraph (a) shall be subject to a civil money penalty of up to $11,000 for each violation."

Did HRSA Director Violate Confidentiality?

As the HRSA official's letter to the reporter contained a "cc" at the end of the letter, naming the specific physician involved, the following question is raised: Did the HRSA director violate the very confidentiality regulations (45 CFR 60.15) which she cited in her threatening letter to the reporter? Her letter to the reporter essentially confirmed the existence of a report on the named physician in the NPDB.

Public Use File Removed from NPDB Website

On Sept 1, 2011, the NPDB Public Use File was removed from the NPDB's public website. A special notice posted on the website stated:

Newspaper Publishes Article

Despite the threat from the NPDB official, the Kansas CityStar published the article on Sept 4, 2011. Information attached to the article described exactly how the newspaper developed the story:

HRSA Failed to ProtectConfidential Information

Although the new procedure for obtaining information from the NPDB has drawn protests from journalists, who have complained that the new more restrictive procedure infringes upon their First Amendment rights, one thing is certain: the agency tasked with keeping information in the NPDB confidential utterly failed to prevent violation of confidentiality as required by law. HRSA now fully admits that the data were vulnerable to manipulation so as to identify individual physicians.

Section 11137(b)(1) of HCQIA clearly states, in part:

The law clearly required HRSA to accept applications for information and to prepare such information, not simply place thousands of files on a public website in reckless disregard of physician confidentiality.

Conclusion

The lesson to be learned is that, despite assurances of politicians and bureaucrats to the contrary, government is not capable of keeping private information private and confidential. Those who still value their medical privacy would do well to keep this fact in mind as electronic health records and linked databases become more prevalent.

REFERENCES

(1) 42 U.S.C. [section][section] 11101-11152.

(2) 42U.S.C.[section] 11101(2).

(3) 42U.S.C.[section] 11137(b)(1).

(4) Oshel RE. Statement of Robert E. Oshel, Ph.D., Concerning HRSA's Removal of the Data Bank Public Use File and New Requirements for Research Data Requests; Oct 2, 2011. Available at: www.healthjournalism.org/uploads/ NPDB-Oshel.pdf.AccessedOct29,2011.

(5) Reporters Use NPDB's Public Use File to Expose Gaps in Oversight of Doctors. Available at: www.healthjournalism.org/secondarypage-details. php?id=982.Accessed Oct29,2011.

(6) Letter from Cynthia Grubbs, R.N., J.D., director, Division of Practitioner Data Banks, to Alan Bavley, health reporter, Kansas City Star, Aug 26, 2011. Available at: www.healthjournalism.org/uploads/NPDB-Bavley-letter.pdf. Accessed Oct 29, 2011.

(7) U.S. Dept of HHS. Special notice: access to public use data file. The Data Bank: National Practitioner Healthcare Integrity & Protection. Available at: www.npdb-hipdb.hrsa.gov/resources/publicData.jsp. Accessed Oct 29, 2011.

(8) Bavley A. Bad medicine: family wishes they'd known surgeon had been sued repeatedly for malpractice. Kansas City Star, Oct 6, 2011. Available at: www.kansascity.com/2011/09/04/3191038/badmedicine-family-wishestheyd.html. Accessed Oct 29, 2011.

Lawrence R. Huntoon, M.D., Ph.D., is a practicing neurologist and editor-in-chief of the Journal of American Physicians and Surgeons. Contact: editor@jpands.org.
From 1997 until my retirement in 2008, I was
   Associate Director for Research and Disputes for HRSA's
   [Health Resources and Services Administration]
   Division of Practitioner Data Banks, which operated the
   National Practitioner Data Bank. I was recruited to the
   Division in 1993 to establish the Data Bank's research
   program. Among other duties, I personally designed the
   Data Bank's Public Use File and oversaw its development
   and quarterly updating.... On a volunteer basis, I have
   also assisted patient safety advocates, the news media,
   and others in using the Data Bank's Public Use File and
   understanding the Data Bank. For instance, I created
   extracts containing Public Use File records for the
   Kansas City Star.... I did not assist the Star in identifying
   records for the physician named in the recent story that
   led to HRSA's removal of the Public Use File. It should be
   noted that what I did for the Star was no different from
   what I and my staff did hundreds of times for
   researchers, including newspapers and other media, as
   a HRSA employee. (4)


The U.S. Department of Health and Human Services
   (HHS) has been informed that you may be writing an
   article for publication in the Kansas City Star which
   potentially involves the republication of information
   obtained from the National Practitioner Data Bank
   (NPDB). Please note that NPDB reports and the
   information derived from them are protected by
   Federal law.... [E]ven the existence of NPDB reports
   regarding specific practitioners is considered
   confidential information. (6)


On September 1,2011, HRSA removed the Public Use
   Data File (PUF) from our website. We regret that we had to
   take this temporary action and are committed to restore
   the PUF to our site as quickly as is possible. The statute that
   governs the NPDB clearly states that we are obligated to
   keep data about individual practitioners housed in the
   NPDB confidential. We now know that the PUF in its
   current form can be manipulated to identify individual
   practitioners, and therefore were compelled to act.... 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. Please contact dpdbdatarequests@hrsa.gov for
   research requests. (7)


The Kansas City Star analyzed National Practitioner
   Data Bank records from 1990 through 2010 of physicians
   who have had payments made on their behalf in Kansas
   or Missouri for malpractice claims and who have not
   been disciplined by the state's medical board.... The
   methodology used to analyze the data was
   recommended by Robert Oshel, retired Data Bank
   associate director who created its public use file . The
   Star linked [the doctor] to entries in the Data Bank by
   comparing its public reports to information about [the
   doctor] containedincourtfilings. (8)
   HRSA took no further action against the reporter.


Information reported under this subchapter that is in
   a form that does not permit the identification of any
   particular health care entity, physician, other health care
   practitioner, or patient shall not be considered
   confidential. The Secretary (or the agency designated
   under section 11134 (b) of this title), on application by
   any person, shall prepare such information in such form
   and shall disclose such information in such form.
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