Some 100,000 health providers disciplined for abuse, fraud, and other kinds of harm may still be treating patients because a law requiring disclosure of their records to potential employers has gone unimplemented for 22 years, prohibiting hospitals from knowing about their practitioners' questionable backgrounds.
That's a charge from Public Citizen and its director Sidney Wolfe MD, who sent the Obama Administration a sharply-worded letter yesterday urging that the regulation finally be put in place.
The advocacy group wants hospitals, nursing homes, and other providers to have access to the federally run Healthcare Integrity and Protection Data Bank (HIPDB). The bank contains disciplinary action reports on these non-physician caregivers, including registered nurses, licensed practical nurses and nurse aides, pharmacists and pharmacy assistants, physician assistants, and respiratory and physical therapists.
Some 5,000 U.S. hospitals and 700 nursing homes are allowed to have access to the bank's records under Section 1921 of the Social Security Act of 1987, but many presidential administrations have failed to finalize the regulation that would make that access a reality.
"We know that these health professionals now can jump from one hospital in one state, to another, and unbeknownst to that hospital, have a record that would make that hospital not hire them," Wolfe says. "And if they did know it and still hired them, they would be on the wrong side of a conclusion in a lawsuit."
In a statement yesterday, Wolfe said, "Many of these workers would not have jobs in the healthcare field if their current employers knew about their checkered pasts. Keeping these records secret greatly increases the chance that patients will be injured or killed at the hands of their caretakers."
In the six-page letter, Wolfe and staff researcher Al Levine told Health and Human Services Secretary Kathleen Sebelius that "this secrecy ensures that though they have been disciplined one or more times, many in multiple states, such healthcare workers can get jobs at hospitals or nursing homes because their employers lack awareness" of their past activities.
The letter noted that as of Dec. 31, 2007, the bank's database contains the names of more than 40,000 nurses sanctioned for healthcare violations, including unsafe practice or substandard care, misconduct or abuse, fraud, deception, misrepresentation, and improper prescribing, dispensing or administration of drugs.
It also contains the names of more than 49,000 licensed practical nurses and nurse aids sanctioned for similar healthcare—related violations.
The letter also explains that under current practice, only federal hospitals and nursing homes that are part of health plans have access to the bank's data, which is under the jurisdiction of the federal Health Resources and Services Administration.
Last October, language for the desired regulation was submitted to the Office of Management and Budget for review. But it was held up because of the presidential transition, and was to be re-submitted after the inauguration.
"Although the [proposed] regulation had been previously cleared by HHS prior to being submitted to OMB, HHS staff has advised us that the regulation will now have to go through departmental clearance once again," delaying final regulation until "2010 or beyond," the Public Citizen letter explained.
The proposed language "is not controversial" and "has considerable support and places no additional reporting burden on anyone."
Wolfe's letter to Sebelius comes five weeks after a series in the Los Angeles Times pointed to the failure of California's licensing agencies to discipline nurses with behaviors that put patients at risk of harm.
Hospitals have long wanted access to disciplinary action about such practitioners, especially in cases where multiple reports have been filed on their problem behaviors. Public Citizen's letter to Sebelius draws on information from a former HHS employee "whose job required him to read many of the reports and perform statistical analysis on all of them." Some reports involved serious lapses in judgment that hospitals that might employ them would want to know, according to Public Citizen.
"HRSA has the following disciplinary reports on nurses in its possession that are not available to non-federal hospitals and many nursing homes."
While 21,725 nurses have one disciplinary report, 10,509 have two or more, and 32 have 10, Public Citizen added.
The letter details numerous examples of nurses who continued to practice despite conviction of criminal offenses related to alcohol abuse, petty theft, methamphetamine possession, drunk driving, other drug possession offenses, and prescription forgery.
Wolfe also proposes a practical, cost-saving solution. When the regulation is implemented, he wrote, it would allow all such information to be folded into the National Practitioner Data Bank (NPDB), thus eliminating the need to continue subsidies required for the Healthcare Integrity and Protection Data Bank, which would need at least $900,000 annually. By folding the data into the NPDB, HIPDB could be shut down and those expenses to the taxpayer avoided.