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.

Disruptive behavior can be caused by many internal and external factors. Troubled physicians could have mental health or substance abuse issues or be working through domestic issues with a spouse, children, or aging parents. There could be dissatisfaction with a practice's business or philosophical differences with the way care is delivered. Sometimes, people simply don't work well together.

Unfortunately, if the intervention isn't done correctly, it could create more trouble and the offending physician could make a counter claim for racial, gender, or disability discrimination.

It's not enough simply to have a firm set of rules. "Rules are what we fall back on when things aren't going well," says Scott A. Fields, MD, professor and vice chair of family medicine and COO at Oregon Health & Science University in Portland. "If you are only talking to a doctor when they are in trouble, it creates a bad environment, and so having regularly scheduled opportunities for feedback that can be positive and critical is important. It's better to reinforce what is right instead of what is wrong."

Fields says physicians must get over their reluctance to report abusive behavior by colleagues. "Physicians think of a culture of the physician as a single entity, a box within themselves in terms of their operations. They [feel they] are responsible for their box only and another physician is outside of their box," he says. "Unfortunately, that leaves managers of practices as oftentimes the ones who have to deal with this, and probably inappropriately so."

If, despite your best efforts, there is a workplace incident, document it thoroughly. "A key downfall is physicians never make any notes," says Susan Reynolds, MD, president and CEO of the Institute for Medical Leadership in Pacific Palisades, CA. "They don't like doing personnel management or review. When there is an incident, very little is written up. So when you want to do something once this person is shown to have bad behavior, you may not have a trail that shows a pattern of bad behavior. Every person has lost their temper at one time or another, but if this is a pattern that needs to be dealt with, it is important to have a paper trail and document things."

Get a signature for every document to avoid potential litigation, says J. Peter Rich, JD, partner at McDermott Will & Emery, LLP, in Los Angeles.

"It should be documented, dated, and signed," he says. "The language should not indicate bias or opinions of a psychiatric nature, but it should document exactly what happened based upon interviews with the people who observed it, and then the physician or other personnel should sign it. The physicians involved should sign it, and that should be part of their personnel file for the doctor so later, if you've got to make a case, you've got it there. If it involves counseling, the physician who is the subject of the counseling should sign it as well. If there is an agreement for the physician to change his behavior as a condition of continuing with the group, that should be in writing and signed."

This article was adapted from one that originally appeared in the September issue of The Doctor's Office, a HealthLeaders Media publication.

Some physicians erroneously think certain off-label uses of prescription drugs are approved by the U.S. Food and Drug Administration, researchers said. Corresponding author Dr. G. Caleb Alexander of the University of Chicago Medical Center said this mistaken belief could encourage doctors to prescribe the drugs, despite the lack of scientific evidence supporting such use.

I didn't realize at the beginning of the summer just how divisive the debate over healthcare reform would ultimately become. As the rhetoric has heated up, it has sharply divided the country, Congress, and even the nation's physicians.

The House healthcare reform bill cleared a major hurdle when it secured the endorsement of the AMA—it is the nation's largest physician group and has been a vocal opponent of healthcare reform efforts (including the creation of Medicare) in the past.

But the AMA's endorsement has drawn a backlash from some physicians who oppose current reform proposals, particularly the public option. The AMA decided that eliminating the thorny Sustainable Growth Rate formula that keeps doctors on the brink of perpetual reimbursement cuts was worth the tradeoff. Not all physicians agree.

A group of 17 state medical societies and specialty groups has publicly dissented from the AMA's position, citing the creation of a public option as its main objection, and a few other physician groups have taken aim at the association as well.

A decent chunk of the difference of opinions between physicians (and everyone else in the debate, for that matter) can probably be attributed to politics and ingrained ideological differences. But beyond politics, there are real questions to be answered:

• Will reform ultimately help physicians more than it hurts?


• Will a public option decrease the burden of uncompensated care or pay so poorly that it doesn't matter?


• How will physicians fare if nothing changes?

These questions are difficult in part because reform won't affect all physicians equally. In thinking about different physician opinions concerning today's reform efforts, I'm reminded of a survey I wrote about last year that measured physician opinion on the more generic prospect of universal healthcare.

The report found that when asked simply if they support national health insurance, of the more than 2,000 doctors polled, 59% were in favor of and 32% were opposed, a significant jump from the previous poll in 2002.

But if you break that down by specialty, support ranged from more than 80% of psychiatrists to only 30% of radiologists. In fact, a physician's specialty seemed to be a pretty strong predictor of whether he or she supported national health insurance.

The specialties that most strongly supported it—psychiatry, pediatrics, and primary care—all make less than $200,000 (MGMA median levels) or, in the case of emergency medicine, often have patient panels with a lot of uninsured or Medicaid patients. The specialties most strongly opposed—radiology, anesthesiology, and surgical subspecialties—are some of the highest earners in medicine and the biggest beneficiaries of the fee-for-service model.

Are physicians basing these views entirely on compensation? Of course not. But reforming healthcare will affect physicians to varying degrees, and specialty affiliations can't be discounted.

There's been a lot of talk from the Obama administration about boosting primary care training and reducing ED overcrowding through reform legislation, but there has also been focus on reducing imaging payments and moving away from fee-for-service. There will be winners and losers among physicians.

Unfortunately, the survey that showed the specialty correlations came out a year ago, before tangible reforms had been proposed, and I haven't seen a study since that has broken down support by specialty.

But given physicians' allegiance to their niches and the wide gaps in incomes and practice styles, I'd guess there is a similar specialty divide in support for specific reform proposals today.