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More Information on Hospital Discipline Reporting

Letter Concerning the DEA's Failure to Provide Information to the National Practitioner Data Bank

June 6, 2001

John Ashcroft
Attorney General
U.S. Department of Justice
Washington, D.C. 20530

Dear Attorney General Ashcroft, 

We have obtained information documenting that the Drug Enforcement Administration (DEA), a division of the Department of Justice, has failed to provide to the National Practitioner Data Bank (NPDB) reports on all U.S. physicians — at least 2,592 — who “voluntarily” surrendered their federal (DEA) narcotic prescribing licenses between September 1, 1990 and the present. These physicians usually “volunteer” to do so only because of impending revocation, after having been found to have violated the federal Controlled Substances Act or to have engaged in other unacceptable medical practices. As a result, those health entities making queries of the NPDB, state medical boards, hospitals and HMO’s, are not aware of the DEA’s actions against these 2,592 physicians. We urge you to immediately order the DEA to provide the NPDB with all the information on these physicians so that this can be added to the NPDB. The failure to report these physicians, as intended by the laws and regulations governing the NPDB, has been a known source of contention between the Department of Health and Human Services (HHS) Division of Quality Assurance (DQA) which oversees the NPDB and the Justice Department’s DEA for more than five years. It has resulted in the deception of those who use the NPDB.  

We obtained the public use file from the DQA (which deletes the names of physicians) covering the period from the inception of the data bank (September 1, 1990) through the end of the year 2000. We compared this to the DEA actions in our database, 20,125 Questionable Doctors,[1] excluding those actions in our data which occurred prior to September 1, 1990, when the NPDB became operative.  

The NPDB only contains data on 286 physicians against whom a total of 294 DEA actions were taken. All of these actions were license revocations. There is not one report in the NPDB of a physician who surrendered his or her DEA license from September 1, 1990 through December 31, 1999 although the Questionable Doctors database, published in August, 2000, contains reports of 2,592 physicians who surrendered their DEA licenses during the same interval. In addition to this serious DEA reporting deficiency, as of May 15th of this year, the DEA had not submitted to the NPDB any reports for the year 2000, not even revocation reports.

Examples of offenses committed by physicians that led to their “voluntary” surrender of their DEA license included in Questionable Doctors but not reported by the DEA to the NPDB include the following:  

  • An Arizona physician was criminally convicted of obtaining Halcion and Tylenol III [with codeine] by fraud.
  • A California physician was arrested for selling prescriptions in return for large fees for office visits.
  • Anabolic steroids [used for bodybuilding, etc] were seized from the office of a California physician who pleaded guilty and was sentenced to prison for receiving and distributing steroids.
  • A California physician was found to have diverted in excess of 50,000 dosage units of controlled substances in 1992 and 1993.
  • A Florida physician surrendered her controlled substance license because of illegal exportation of Dexedrine [dextroamphetamine].
  • A Kentucky physician admitted to having a sexual relationship with a patient in exchange for prescriptions. 

The history of DEA’s unwillingness to disclose information about doctors who surrendered their narcotics licenses dates back to 1992 when Public Citizen’s Health Research Group brought suit against the DEA arguing that the Freedom of Information Act (FOIA) required disclosure not only of license revocations (which are published in the Federal Register) but also of license surrenders.  Public Citizen Health Research Group v. DEA, No. 92-2179 (D.D.C.).  The DEA had contended that it would not give us data on license surrenders because to do so would invade the personal privacy of physicians who had surrendered their licenses and would interfere with the DEA’s law enforcement efforts by lifting the cover on the voluntary DEA license surrender agreements.  After we filed suit, lawyers from the Justice Department decided that the DEA’s position was indefensible as a matter of law, and the case was settled in January 1993 with an agreement that requires the DEA to provide us with license surrender information. 

The NPDB was not so fortunate as we were but HHS’s Division of Quality  Assurance did not seek to get the information from the DEA as aggressively as we did.  A House of Representatives’ report on the National Health Quality Assurance Act of 1986, which provided for the initiation of the NPDB, stated, with respect to health care entities, that “the purpose of requiring reports even for circumstances in which physicians surrender their privileges is to ensure that health care entities will not resort to “plea bargains” in which a physician agrees to such a surrender in return for the health care entity’s promise not to inform other health care entities about the circumstances of the physician’s surrender of privileges. While such agreements may serve the immediate self-interests of the two parties involved, they may jeopardize the health and safety of future patients….”  

Internal memos from the DQA and correspondence between the DQA and the DEA document the long-standing conflict over the submission of DEA license surrender information to the NPDB. Some of this history is reviewed in a 1997 HHS Inspector General Report entitled Drug Enforcement Administration Reporting to the National Practitioner Data Bank. The report pointed out that between the initiation of the data bank in September 1990 and early 1996 “DEA has reported a total of about 150 actions to the Data Bank. However, according to DEA, it annually sanctions about three times the number of providers reported to the data bank”. Referring to the House report on the law cited above, the Inspector General concluded that, “Clearly, congressional intent seems to warrant DEA reporting of “voluntary withdrawals.”  

The report recommended “that the Drug Enforcement Administration and Data Bank officials work together to include voluntary withdrawals as part of adverse action reporting to the Data Bank.” Included was a recommendation to modify the 1988 Memorandum of Understanding signed by HHS and DEA concerning reporting requirements to state, explicitly, that voluntary surrenders must be included. A draft of this new memorandum of understanding was sent by the DQA to DEA in July, 1997, including the statement that the DEA will report to the NPDB all information on DEA registrants whose controlled substance registration “has been suspended, denied, voluntarily withdrawn as the result of misconduct, or revoked…”[2] As of now, almost four years later, this memorandum has never been signed by the DEA. 

For the last several years there have been a series of broken promises by the DEA to provide this important information on voluntary surrenders so that this information can be included in the Data Bank. A February 5, 1998 memo of a phone conversation between DEA’s Jim Sheehan and DQA Stan Levin stated that Sheehan had agreed “that DEA would submit the voluntary surrenders.”[3] 

The last written correspondence from DEA to DQA concerning this issue was more than two years ago, January 11, 1999. It stated that the revised HHS/DEA memorandum of understanding, then sitting at the DEA for 1 ½ years, was still “under review by DEA’s Office of Chief Counsel” and that “We will advise you when their review is completed in the near future.”[4]  As of now, 2 ½ year after this promise and almost four years after the memorandum of understanding was first sent by HHS to DEA, it remains unsigned and DEA’s promise to submit the information on the 2,592 physicians who “voluntarily” surrendered their DEA narcotics licenses remains unfulfilled.  

This is a matter of extreme urgency since every day that goes by with the NPDB failing to include information about these 2,592 doctors is a day when people making the thousands of daily inquiries of the NPDB are being misled by the absence of information concerning serious offenses by doctors such as detailed in the examples above. The absence of such information about voluntary surrenders, as the House of Representatives’ report on the legislation establishing the NPDB clearly stated, “may jeopardize the health and safety of future patients….” 

I hope to hear from you promptly about the long overdue resolution of this issue and if there are further questions, please do not hesitate to call.

Sincerely,

Sidney M. Wolfe, M.D. 
Director, Public Citizen’s Health Research Group

cc: Tommy Thompson, Secretary, HHS


References

[1] The Questionable Doctors database includes final disciplinary actions by state medical boards and the federal government (Medicare, Medicaid and the DEA). For the purpose of comparison, we analyzed DEA actions that occurred between September 1, 1990 and December 31, 1999 and are listed in the NPDB public use file and compared them to the DEA actions listed in the Questionable Doctors database which were taken between September 1, 1990 and December 31, 1999.

[2] Proposed Memorandum of Understanding Between the Department of Justice and the Department of Health and Human Services, dated June 25, 1997.

[3] Memo from Stan Levin to Tom Croft and Susan Nicholson of HHS’s Division of Quality Assurance, which oversees the operation of the NPDB, dated February 5, 1998.

[4] Letter from DEA Deputy Assistant Administrator John H. King to Thomas Croft, Director, Division of Quality Assurance, DHHS, and dated January 11, 1999.

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