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Don’t ask/don’t tell: Feds keep partial muzzle on reporters of discipline data

Photo by Matt Hilger

For more than two and a half years, journalists who consult the National Practitioner Data Bank, the federal repository of state disciplinary actions involving health professionals, have had to agree to a special condition. The Health Resources and Services Administration (HRSA), which operates the data bank, bars reporters from naming physicians and other providers they can match up with other publicly available data to identify those who have reached often confidential settlements in malpractice cases filed by patients.

It’s an ongoing point of dispute among state and federal officials controlling discipline information, professional associations concerned about misuse of data, and reporters defending the public’s right to know about their providers’ background.

The restriction stems from a series of complaints in fall 2011 to HRSA by a Kansas doctor whose unusually large number of malpractice settlements were identified by the Kansas City Star based on data bank information.

The data bank keeps its public use file free of names and addresses of doctors, only identifying them by randomly generated numbers. But through “shoe-leather” reporting, journalists can often match data from different sources and identify individual providers.

“As other reporters have done, the Kansas reporter was able, using the data bank, to figure out who it was,” said Charles Ornstein, a senior reporter with the public interest group ProPublica, and former president of the Association of Health Care Journalists, in an interview with Professional Licensing Report.

The Kansas physician, Robert Tenny, wrote six letters to HRSA in August 2011 alleging that the data bank was being misused to report on confidential malpractice settlements. In response, HRSA wrote a warning letter to the reporter, advising him he could face fines of $11,000 for each violation of confidentiality, and actually took the databank offline for two months on September 1.

Tenny’s September 4, 2011 letter to HRSA pointed to what he considered a clear breach of confidentiality:

Dear Ms. Grubbs,

Enclosed is a copy of the lead, front-page article that appeared in the Kansas City Star on Sunday, September 4, 2011. I feel that the information contained in the 3rd, 7th, and 9th paragraphs could have only come from the National Data Bank records. Under the section, How many Doctors, I feel that the information in the 4th and 7th paragraphs also comes from the National Data Bank. I am sure that you find the information in the section, Using the federal files, also interesting and, I hope, will change the way the public data is presented.”

Respectfully,

Robert T. Tenny, M.D.

This move was greeted with approval by many professional groups. The American Medical Association, for example, released a statement saying that, to prevent breaches of data confidentiality, had long been opposed to public access to data bank information.

The Kansas City Star article ran three days later, reporting that Teny had been sued at least 16 times for medical malpractice but had never been disciplined by the state licensing board.

Tenny continued to write to HRSA alleging that the newspaper was bent on ending his medical career and speculating that the reporter had gotten improper access to information from the full data bank either from a local medical center or from a former data bank employee.

The data bank came back online in November 2011 and public availability was restored, but it was with the requirement that the data not be combined with other publicly available information in a way that would identify providers.

When the Data Bank (NPDB) was launched in 1990 to address the failure of state regulators to stop providers who had had ethical breaches or committed malpractice in other states, it was regarded as a significant reform. The law enabling the data bank had been passed in 1984 following some high-profile newspaper articles and series about doctors “licensed to harm.”

Making discipline and malpractice data available to the public, Congress believed when it ordered formation of the NPDP, would keep the licensing process responsive and prevent bad providers from simply state-hopping.

But Ornstein and other health care journalists argue that the restriction goes against this intent. Under the current policy “the reporter has to basically agree not to be a reporter in accessing the information,” says Ornstein, who won a Pulitzer Prize for his 2005 Los Angeles Times series about “The Troubles at King/Drew,” and who more recently wrote “When Caregivers Harm: California’s Unwatched Nurses” for ProPublica.

“We believe [federal officials] are misinterpreting the underlying regulations as far as the lengths to which they have to go to protect the privacy of individuals,” Ornstein says.” In many states, such as Florida, he notes, malpractice settlements have to be reported and are considered public information.

“We’re not talking about secret discipline. We’re talking about for the most part discipline that is publicly reported by the states. The federal government should be actually seeking to give more information to patients and the public that empowers them to make better health care decisions.”

There is a work-around that some reporters have used, Ornstein points out. If they access a downloaded version of the old database from before the shutdown—which can be linked to from the probpublica.org site—they do not have to agree to any restriction because they are not going through HRSA. But to obtain current information, the NPDB restriction generally requires a lot more legwork by reporters attempting to cover disciplinary cases, he says.