Letter Urging Secretary Sebelius to Provide Hospitals and Nursing Homes with Disciplinary Data on Nurses and Other Allied Health Professionals (HRG Publication #1888)
August 26, 2009
Honorable Kathleen Sebelius
Dear Secretary Sebelius:
This letter is to urge you to immediately implement Section 1921 of the Social Security Act. This would significantly reduce the chances that patients will be injured or killed by any of the more than 100,000 non-physician health professionals (e.g., nurses, pharmacists, physician assistants) and other health workers with disciplinary records who may be employed in hospitals or nursing homes. The adverse action reports concerning these health professionals are contained in the federally run Healthcare Integrity and Protection Data Bank(HIPDB). Federal hospitals and a few nursing homes have access to these reports. However, the failure to implement Section 1921 keeps the data from more than 5,000 U.S. hospitals and approximately 700 nursing homes. 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 previous unsatisfactory records.
As of December 31, 2007, the HIPDB contained the following data:
The much-needed action to immediately make this important information available to over 5,000 hospitals and about 700 nursing homes from whom it is currently being kept secret is clearly within your authority.
Twenty-two years after Section 1921 was enacted, the Department of Health and Human Services (HHS) has still not published the final Section 1921 regulation needed to implement the legislation. Publication of the final regulation would expand the National Practitioner Data Bank (NPDB) to allow hospitals and nursing homes access to the following adverse action reports, which have already been collected by the Health Resources and Services Administration (HRSA).
Disciplinary Reports Maintained by HRSA – Not Available to Hospitals
The above data are already maintained by HRSA in the HIPDB. However, the HIPDB enabling legislation, Section 221 (a) of the Health Insurance Portability Act of 1996 (Public Law 104-191), does not allow hospitals, except for federal hospitals, to have access to the HIPDB. In addition, unless nursing homes are part of a health plan, they do not have access to the HIPDB.
Implementation of Section 1921 would, for the first time, allow this data to become part of the National Practitioner Data Bank, thus permitting over 5,000 non-federal hospitals and approximately 700 nursing homes, which have registered with the NPDB, access to thousands of disciplinary records involving the type of practitioners who work in such health care facilities.
Section 1921 Regulation
In October 2008, HHS submitted the draft final Section 1921 regulation to the Office of Management & Budget (OMB) for review. However, because of the presidential transition, OMB sent the final regulation back to HHS, indicating that the regulation could be re-submitted after January 20, 2009. Although the 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. According to current and former HHS staff, the clearance process will delay issuance of a final regulation — and hospital and nursing homes access to the crucial data — to 2010 or beyond. Discussions about Section 1921 at meetings of the National Practitioner Data Bank Executive Committee, which Public Citizen has attended as a member, indicated that the regulation is not controversial, has considerable support and places no additional reporting burden on anyone. In fact, since HRSA has already done the computer programming to implement Section 1921, implementation costs would be minimal. Furthermore, HRSA is likely to get additional revenue as the number of health care entities using the NPDB increases with Section 1921 implementation because there is a query fee of $4.25.
Although the Section 1921 legislation was passed 22 years ago, HHS has not met this commitment. Only your immediate intervention will expedite issuance of the final regulation.
Importance of Section 1921 Data to Hospitals and Nursing Homes
The data on allied health professionals have been highly desired by hospitals, but as noted earlier are currently not legally available to non-federal hospitals and many nursing homes. However, the information has been legally available to state licensing boards, health plans, managed care organizations and federal hospitals. According to a recently retired HHS employee whose job required him to read many of the reports and perform statistical analysis on all of them, some of the reports involved serious lapses in performance and judgment that would be of extreme interest to hospitals considering hiring nurses and other professionals. Furthermore, some individuals had multiple reports – for instance, 10,509 nurses have more than one adverse action report, a fact that would also be of great interest to hospitals and nursing homes considering job applicants. Statutory confidentiality requirements prevent this former HHS employee from identifying the subjects of the reports he has seen. Public Citizen notes that according to unpublished HRSA data, as of December 2007, HRSA has the following disciplinary reports on nurses in its possession that are not available to non-federal hospitals and many nursing homes:
RNs with Multiple State Licensure Disciplinary Reports
Additional reports on nurses include: 517 reports involving civil judgments or criminal convictions relating to health care malfeasance; 62 reports involving “Government Administrative Actions,” which could include actions taken by Medicaid Fraud Control Units and the Center for Medicare and Medicaid Services; and 31 reports from health plans, which could involve substandard care.
Impact of Section 1921 on Hospitals and Nursing Homes
There are numerous examples of nurses with performance or conduct problems who continued to practice because of the failure of regulatory oversight. Although we do not know whether the following nurses are listed in the HIPDB, their records strongly suggest that they were and that they might not have been able to get new employment if their previous records had been known.
Hospitals are not the only venues where health care is potentially compromised because of HHS and OMB’s failure to issue the Section 1921 regulation. There are currently about 700 nursing homes registered with the National Practitioner Data Bank. With Section 1921 implementation, these nursing homes would have access to over 76,000 sanction reports on nurses and over 85,000 sanction reports on para-professional nurses (e.g. LPNs, Nurse Aides).
On May 15, 2008, the Chief Counsel to the Inspector General of HHS testified before the House Subcommittee on Oversight and Investigations. In discussing nursing home screening of employees, the OIG noted:
The July 2005 OIG study also noted that almost 100,000 nurse aides had registrations in multiple states, “suggesting that interstate movement of nurse aides is not uncommon” (http://oig.hhs.gov/oei/reports/oei-07-04-00140.pdf).
A February 2005 OIG report on nurse aide registries and long term care facilities noted that:
In Texas, a nurse aide took a resident’s debit card without permission, got the personal identification number, and withdrew money from the resident’s bank account totaling approximately $1,100 (http://www.oig.hhs.gov/oei/reports/oei-07-03-00380.pdf).
Currently Available Data Bases
The National Council of State Boards of Nursing operates the NURSYS data base, which contains licensure and disciplinary information on nurses (RNs) and LPNs. However, only 37 states plus the District of Columbia and Virgin Islands submit licensure and disciplinary data on both RNs and LPNs to NURSYS. Louisiana submits data on only RNs, while West Virginia contributes data on only LPNs. Furthermore, NURSYS does not contain information on nurse aides.
Currently, to do a thorough background check, non-governmental hospitals and most nursing homes must query numerous individual licensing boards for disciplinary reports on nurses and other allied health professionals such as pharmacists, physical therapists and physician assistants. Many boards charge for each query. According to a senior credentialing official at the Department of Veterans Affairs, the average querying fee for allied health professional licensing boards is about $25.
A senior credentialing official for a corporate hospital chain advised Public Citizen that implementation of Section 1921, which provides for “one-stop shopping,” would increase efficiency and reduce her hospital credentialing costs, which now average about $300 per background check.
A performance review of the NPDB and HIPDB by the Office of Management and Budget in 2006 noted the following:
Costs Savings - Section 1921 Implementation Would Allow HIPDB to Sunset
Section 1128e of the Social Security Act requires the Healthcare Integrity and Protection Data Bank to be self-sustaining from the revenue it generates from query fees; however, according to HHS officials, HIPDB has not been self-sustaining since FY 2003. As a result, it has received a $450,000 subsidy from the Health Care Fraud and Abuse Control Program (HCFAC). Once Section 1921 is implemented, many customers of the HIPDB, such as health plans, are likely to discontinue querying the HIPDB if they also have access to the NPDB because, according to retired HHS staff who had worked on NPDB and HIPDB issues, almost all of the data in the HIPDB will be in an expanded NPDB. With the loss of querying revenue, the HIPDB would need additional financial support. An unofficial HHS estimate indicates that the HIPDB would require a subsidy of at least $900,000 annually when Section 1921 is implemented. According to HRSA’s 2009 budget justification, “with the implementation of Section 1921, the HIPDB will not be able to financially sustain its own existence. Therefore, the HIPDB will continue to require additional …funding in order to maintain its existence until it can be properly shut down.” The FY 2009 HRSA Performance Appendix to their budget notes “with the implementation of Section 1921 in FY 08 there will be little unique information available in the HIPDB. The FY 2009 legislative proposal would sunset HIPDB and move the unique HIPDB reports not covered by Section 1921 into the NPDB."
Twenty-two years after Section 1921 became law, HHS has failed to finalize a regulation that would make American hospitals and nursing homes safer. To provide hospitals and nursing homes a critical tool necessary to assure patient safety, and to eliminate the expenses associated with funding the HIPDB, Public Citizen calls upon HHS to work with OMB to issue the final Section 1921 as soon as possible.
Sidney Wolfe M.D.
 Established by the Medicare & Medicaid Patient Protection Act of 1987, Public Law 100-93
 Unpublished HRSA data. Unless otherwise indicated, all disciplinary statistics in this letter are from unpublished HRSA data.
 HRSA informed Public Citizen that HRSA plans to send a letter to entities that have reported to the HIPDB asking if they want to re-submit to the expanded NPDB or have HRSA move the report from the HPDB to the NPDB.
 San Luis Obisco Tribune, October. 12, 2008
 Los Angeles Times, November 2, 2008