Honorable Kathleen Sebelius
Department of Health Human Services
200 Independence Ave. SW
Washington, D.C. 20201
Dear Secretary Sebelius:
In the 17-plus years since it began, the National Practitioner Data Bank (NPDB) has not received a single report from almost half of U.S. hospitals who are required to report doctors whose hospital admitting privileges have been terminated or restricted for more than 30 days. This means that thousands of hospitals (with, collectively, hundreds of thousands of doctors who have admitting privileges) have never disciplined and reported a single doctor in the 17 years since there has been a requirement that such actions be reported.
Prior to the opening of the NPDB, the Department of Health & Human Services (HHS) estimated that 5,000 hospital clinical privilege reports would be submitted to the NPDB each year. However, the average number of hospital reports per year has been 650. As of December 2007, there was a total of only 11,221 such reports.
Thirteen years ago (1996), by which time it had become clear that the number of doctors reported by hospitals was significantly short of the above estimates, the Health Resources & Services Administration (HRSA, the part of HHS that manages the NPDB) sponsored a national conference of all major NPDB stakeholders (including medical and hospital associations). The conference concluded that “the number of reports in the NPDB on adverse actions against clinical privileges is unreasonably low, compared with what would be expected if hospitals pursued disciplinary actions aggressively and reported all such actions.” HHS has done almost nothing since then to alter this alarming situation.
The enclosed report documents two categories of “reasons” for this dangerously low number of hospital based disciplinary reports: inadequate hospital discipline and loopholes in reporting discipline even when it occurs.
- The actual amount of discipline of doctors is extremely low because of lax hospital peer review that could result in such action. For example, a July 2008 study for the California legislature found problems in hospital peer review that resulted in “physicians continuing to provide substandard care (at times for years) impacting the protection of the public.”
- There are reporting loopholes wherein even doctors who have been disciplined have actions that are arranged to evade the reporting requirement. For example, a 1994 study of 144 rural hospitals by HRSA found that 20 percent of hospitals reported an increase in certain activities, such as imposing disciplinary actions less than 31 days (below the reporting threshold). In addition, a state medical board official told us that hospitals avoid reporting by (1) changing by-laws and (2) giving doctors leave of absences in lieu of suspensions.
Although multiple HRSA funded studies, two Office of Inspector General (OIG) reports (1995 and 1999) and the aforementioned HRSA-sponsored national conference on the issue in 1996 made numerous recommendations to address hospital under-reporting, the recommendations for the most part have not been implemented. It is noteworthy that the 1996 national conference, which included the American Medical Association and American Hospital Association, reached agreement that many hospitals were not complying with the NPDB reporting requirement. Since the majority of recommendations from these reports and activities have not been implemented, it is not surprising that the level of reporting has not improved.
From the perspective of state medical boards, hospital reports are an important source of data for regulatory oversight. In New York State, for example, 31 percent of hospital complaints, compared to only 10 percent of consumer complaints to the Board, result in a medical board action. Failure of hospitals to discipline or report therefore deprives the boards of critical information and creates the potential for patient harm.
As Secretary, you are now in a position to finally address many of the Inspector General recommendations as well as key recommendations made at the 1996 national conference on under-reporting. For example, the OIG reports recommended that:
- HRSA and Centers for Medicare & Medicaid Services should work together to achieve a regulatory change so that hospitals’ reporting responsibilities under the health care quality improvement act are added as a requirement as one of the Medicare conditions of participation.
- HRSA should propose and seek passage of legislation that would establish a civil money penalty for each instance of a hospital’s failure to report.
Our report notes that hospitals in states with strong penalties for not reporting adverse privilege actions were more likely to report to the NPDB than hospitals in states with no penalty. The Joint Commission itself informed Public Citizen that “the hospital industry is well aware […] of no penalty and well understands that there is no significant punishment associated with not following the requirement.”
Like most of the other recommendations from the OIG reports and national conference, these recommendations have not been implemented.
Finally, our report also addresses other non-implemented recommendations and makes additional recommendations to address problems with hospital peer review and reporting.
Public Citizen would like to meet with you as soon as possible to discuss the next steps with respect to these important issues.
Health Services Researcher, Public Citizen
Sidney M. Wolfe, M.D.
Acting President, Public Citizen
cc: Ron Wyden, Max Baucus, Chuck Grassley, Charles Rangel, Herb Kohl, Mel Martinez, Fortney Pete Stark