Quashing Access to Data, Feds Muddle Commitment to Transparency

When Secretary of Health and Human Services Kathleen Sebelius issued a strategic plan for her huge federal agency last year, she cited the need for "transparency," emphasizing that President Obama was committed to "creating an unprecedented level of openness."

Initially, she demonstrated that she meant business—at least outside the walls of HHS. In 2010, Sebelius chastised health insurance industry executives for "jaw-dropping" rate increases, urged them to be more "transparent" in seeking rate hikes and reminded them they had to tell the full story about their profit margins.

Tough talk indeed.

Too bad Sebelius's shop – HHS – hasn't been very transparent when it comes to public access to a database about problem physicians.

HHS turned its back on transparency when one of its agencies, the Health Resources and Services Administration, on Sept. 1 shut down a 25-year-old database containing names of physicians who have been charged by state medical boards for improper actions. The shutdown stems from one doctor's complaint after an unflattering newspaper story.

After a subsequent flurry of counter-complaints, the agency last week reversed itself, opening the database to the public, but with major changes. HRSA imposed so many restrictions on use of the database, that journalist and consumer groups, including those representing patients, say it's virtually useless as a tool to identify bad docs.

"What they did was ill-advised, unenforceable, and probably unconstitutional," Charles Ornstein, president of the Association of Health Care Journalists, tells HealthLeaders Media, echoing a letter AHCA wrote to Sebelius protesting the action.

Physicians' groups themselves have mixed feelings about whether there should be access. While the American Medical Association states it has "long opposed" access to the database, the American Academy of Family Physicians describes itself as ambivalent about it.

Ornstein made clear that it's not only journalists who rely on the database. The information is important for healthcare systems, too, he says.

The program has been important for hospitals seeking information on doctors, especially in states where there has been inadequate public access to medical disciplinary actions, says Ornstein. "It is extremely helpful to hospitals checking out physicians and those who may be moving from one state to another," he adds.

Specifically, the issue hinges on the public use file from the National Practitioner Data Bank  website, which has been consistently referred to by researchers and consumer groups to calculate trends in disciplinary actions by state medical boards. Beyond that, it has generated some provocative stories in the press nationwide about wrongdoing among doctors across the country.

The database doesn't identify doctors by name, but it gives insight into trends reflecting how state medical boards are disciplining doctors, as well as vital data about hospital sanctions and medical malpractice payouts.

The brouhaha began after a Kansas City Starreporter, culling the data bank and state court records, wrote a story about a local physician. The physician complained, and got quick action: HRSA promptly removed the public use file from its website on Sept. 1. Not only that, the agency wrote a letter warning the reporter he could be liable for $11,000 or more in civil fines for violating a confidentiality provision of the federal law.

The physician, Robert Tenny, had written six letters to HRSA before and after the Kansas City Star published the 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, according to the Association of Health Care Journalists.

After editorials were written objecting to the HHS database shutdown, Sen. Charles E. Grassley, (R-IA), ranking member of the Senate Judiciary Committee, criticized  HRSA for "disturbing and bizarre" actions, saying the public use file had been important to weed out "bad acting healthcare practioners."

Last week, HRSA relented somewhat, reopening a public portion of the database, but imposed other restrictions. These changes make it onerous to use, says Erika Smith, chief investigator for the Senate Judiciary Committee.

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 and 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.

"(HRSA) restored the website, and there is access to the database, but it is not useful in the broad sense of the law," Smith tells HealthLeaders Media. "We're displeased and the consumer groups are as displeased as we are. The database does nothing to help rein in physicians who are bad actors."

Essentially, the restrictions make the public use file unworkable, Ornstein says.

"We are particularly concerned (with) the prohibition of using the file in conjunction with other data that identifies an individual or facility. "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 their facts came from other records and not the data bank?" Ornstein asked in a letter to HHS.

Those who "do not comply with the new restrictions can be asked to return the data and be barred from future access to the public use file," Ornstein says. Requiring that users return the data "is like trying to unspill milk."

One of the big mysteries in all this is how a lone Kansas City physician managed to convince someone within HHS to shut down the entire database, according to Sen. Grassley's chief investigator.

Grassley told HHS he wants a briefing on the matter, including participation "from the person who pulled the public data file after that one single physician complained. Grassley points out that the reporter identified this physician "through shoe leather reporting, not the public data file."

 "One complaint shouldn't dictate public access to federal collected data for 300 million people," Grassley wrote.

After all, isn't that what "transparency" is all about?