HHS Has Been Violating Its Own Policy About Reporting Malpractice Payments to the National Practitioner Data Bank

Sept. 30, 2014

HHS Has Been Violating Its Own Policy About Reporting Malpractice Payments to the National Practitioner Data Bank

Data Bank Could Be Missing Several Hundred Reports of Malpractice Payments Involving HHS Doctors and Health Care Providers; Public Citizen Urges Agency to Report Retroactively

WASHINGTON, D.C. – When it comes to its own doctors and health care providers, the U.S. Department of Health and Human Services (HHS) has been breaking its own policy requiring all malpractice payments to be reported to the National Practitioner Data Bank (NPDB), according to a memo recently obtained by Public Citizen. As a result, it is likely that several hundred reports of malpractice payments are missing from the data bank.

In the decision memorandum, signed on May 22 by then-Secretary of Health and Human Services Kathleen Sebelius, the agency reaffirmed a 1990 policy requiring all malpractice payments made as a result of a claim or suit filed against the U.S. government related to care provided by HHS health care practitioners to be reported to the NPDB, regardless of whether HHS determined that the standard of care was met. Under the policy, the practitioner primarily responsible for providing the care is to be named in the report.

But the memo also revealed that the agency has not been following the policy when it comes to doctors and other health care providers who work for HHS health care agencies such as the National Institutes of Health and the Indian Health Service. In particular, HHS has been withholding reports of malpractice payments when it determined that the standard of care had been met. Therefore, HHS has been noncompliant for decades with the NPDB reporting requirements for malpractice payments.

In a letter sent today, Public Citizen praised the agency for reaffirming its policy but expressed concern about HHS’ interpretation of how the law applies to federal agencies and urged that changes be made to the policy to ensure compliance with NPDB reporting requirements. Of particular concern:

  • The memo states that under the Health Care Quality Improvement Act of 1986 — the law that established the NPDB — HHS and other federal departments do not have to report malpractice settlements to the NPDB. Public Citizen strongly disagrees with this interpretation of the law, noting that an analysis of the law indicates that federal health care service agencies are required to report malpractice payments.
  • The HHS policy lacks clarity regarding which physicians will be named in medical malpractice reports to the NPDB. The policy states that only the “practitioner primarily responsible for providing the care” related to a malpractice payment need be named in the report to the NPDB. Public Citizen urges HHS to require that all practitioners responsible for the care leading to the malpractice event and on whose behalf a malpractice payment is made to be named in the report.

Despite affirming the 1990 policy, the decision memo signed by Sebelius didn’t outline what steps the agency planned to take to comply with it. It failed to indicate whether the agency will implement the decision retroactively to correct the decades-long failure to report malpractice payments to the NPDB. It should do so, Public Citizen maintains. It also failed to specify a timeline for bringing HHS into compliance.

The NPDB is used to conduct critically important background checks to determine if a doctor or other health care provider has been sanctioned for misconduct by a hospital, had his or her license to practice curtailed by a state medical or other health care professional board, or has had any malpractice payments made on his or her behalf. The goal of the NPDB is to protect patients from doctors and other health care providers who have a record of providing substandard or negligent care.

Without complete information, the ability of hospitals, medical boards, health maintenance organizations and similar entities to detect doctors and other health care providers who have a history of medical malpractice payments is hindered.

“HHS’ longstanding failure to submit reports of all malpractice payments made on behalf of HHS practitioners has made it impossible for users of the NPDB to identify patterns of malpractice for some practitioners, thereby undermining the usefulness of the NPDB and posing a threat to patient safety,” said Dr. Michael Carome, director of Public Citizen’s Health Research Group. “The recent decision memo was an important first step to rectifying HHS’ failures, but now the agency needs to stop dragging its feet and follow its own policy. It is also crucial to patient safety that HHS requires all future and past malpractice payments to be reported and that such reports identify all practitioners whose care contributed to the malpractice event.”

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