August 26, 2009

Letter Urging HHS to Provide Hospitals and Nursing Homes with Disciplinary Data on Nurses and Other Allied Health Professionals

Honorable Kathleen Sebelius
Secretary
Department of Health and Human Services
200 Independence Ave. SW
Washington, D.C. 20201

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:

• Names of more than 40,000 nurses sanctioned for health care-related violations including unsafe practice or substandard care (23,551 reports), misconduct or abuse (10,930 reports), fraud/deception/misrepresentation (3,437 reports), and improper prescribing/dispensing/administering drugs (7,526 reports).
• Names of more than 49,000 LPNs and nurse aids sanctioned for health care-related violations such as unsafe practice or substandard care (16,110 reports), misconduct or abuse (12,197 reports), fraud/deception/misrepresentation (4,247 reports), and improper prescribing/dispensing/administering drugs (4,634 reports).

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,[1] 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
(As of December 2007)[2]

Profession	Number of Individuals	Number of Reports
RNs	44,070	76,771
Para-Professional Nurses(LPNs and Nurse Aides)	49,961	85,038
Pharmacists and Pharmacy Assistants	8,548	14,758
Physician Assistants	979	1,684
Respiratory Therapists	2,131	2,944
Physical Therapists	2,384	3,124

 

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[3], 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.

According to the 2006 HRSA “Program Improvement Plan” submitted to OMB as part of the OMB government-wide performance assessment process, HHS committed to doing the following:

Adopting regulations and making system changes implementing Section 1921 of the Social Security Act to minimize the program’s identified limitations and to operate at maximum efficiency.

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
(As of December 2007) 

Number of Individual Nurses	Number of Reports
21,725	1 report
10,509	2 or more reports
4,213	3 reports
1,716	4 reports
883	5 reports
429	6 reports
72	9 reports
32	10 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.

• Diana Kutz continued to practice despite a history of criminal offenses related to alcohol abuse convictions.[4]
• Donna Redcross continued to practice after she had been convicted three times for petty theft, three times for driving without a license, and once each for possession of methamphetamine, drunk driving and disturbing the peace.[5]
• Cynthia Knott continued to work as a nurse despite having served jail time for drug-related arrests.  The drugs had been stolen from her job site.[6]
• Schwam Linstead continued to work even though she was convicted of driving under the influence, forging prescription drugs and possessing controlled substances (two convictions).  The nurse acknowledged that she went to work under the influence of methamphetamine.[7]  

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:

Residents of nursing homes have a right to live in safe and secure environments, free from abuse at the hands of their caregivers. OIG has found, however, that states and nursing facilities currently depend on a patchwork of data sources to identify persons posing possible threats of elder abuse in nursing homes … In a July 2005 report, OIG found that although most facilities check their State nurse aide registries prior to employing an individual, they do not routinely check registries in other States, thereby potentially jeopardizing the safety of their residents.  Additionally, while most States require criminal background checks, the scope of these checks varies widely … about half of the background checks were limited to one State … some individuals with criminal records in one State were certified in other States and therefore still able to have access to residents. (See http://www.oig.hhs.gov/testimony/docs/2008/testimony051508.pdf)

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 poured milk on a resident’s head, grabbed his arms and pushed him back into the wheelchair, and hit him on the head, causing multiple skin tears and bruises.
• In Alaska, a nurse aide struck a resident in the face, fracturing his nose, and breaking his glasses.
• In Virginia, a nurse aide pushed a resident, causing the resident to fall to the floor. The nurse aide later retrieved a snow shovel from the kitchen, and while the resident was still on the floor, struck the resident with the shovel and yelled that she was going to kill the resident.
• In North Carolina, a nurse aide neglected a resident by leaving the resident in the facility transport van.  The resident was found alone in the van when he could not be located in the facility.

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:

The NPDB and HIPDB are the only programs collecting and disseminating malpractice payment and adverse licensure, privileges, membership, judgment, and other adverse action information on practitioners, providers, and suppliers in the US. There are no other comparable programs, including government, private or non-profit. … For clinical privileges actions, professional society membership actions, malpractice payments, State exclusion actions, and adjudicated actions, information could possibly be obtained from the entity which took the action if the querying entity knows where to look and is willing to spend considerable time and effort gathering the information. … For some professions State board organizations, such as the Federation of State Medical Boards, collect and make available information on licensure sanctions of licensed practitioners. They do this under varying circumstances and at varying cost. The amount of information available to licensing and credentialing authorities depends to a large degree on individual State laws. However, this information is limited to information on actions taken in the individual State. The Data Banks are the only source of this information on a national basis, which is necessary as health care providers today often move to, and look for work in, different States. As a practical matter there is no single alternative source to the data banks for the information they contain.

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.

Sincerely,

Alan Levine
Staff Researcher

Sidney Wolfe M.D.
Director
Health Research Group at Public Citizen

---