HHS has long suspected that hospitals have underreported disciplinary actions against physicians to the National Practitioner Data Bank.
The department now believes it has the evidence to make that underreporting a subject of possible legislation.
In a July 21 memorandum, HHS Inspector General June Gibbs Brown referred to a recently completed study as evidence that tougher penalties could coerce hospitals into reporting more adverse actions.
"According to this study, after adjusting for differences in hospital characteristics, hospitals in states with strong penalties were 40% more likely to have reported an adverse action over the five years of the study than hospitals in states with no penalties," Brown wrote in the memo addressed to Claude Earl Fox, M.D., administrator of the federal Health Resources and Services Administration, which operates the data bank.
State penalties are imposed when hospitals fail to report physician sanctions to state licensing boards. Brown and Fox recommend that Congress create a new federal civil monetary penalty of up to $10,000 for each failure of a hospital to report disciplinary actions to the data bank.
Under the Health Care Quality Improvement Act of 1986, hospitals must report professional review actions that adversely affect the clinical privileges of a physician or dentist for a period of longer than 30 days.
Brown's office publicly released her memo July 27, the day before the new study appeared in the Journal of the American Medical Association. The timing was coincidental, as the inspector general did not know the study would be published the next day, a spokeswoman said.
But the cooperation of the HRSA, which funded the study, and the inspector general's office, was not coincidental.
"This was a natural issue that came up," said George Grob, deputy inspector general for evaluations and inspection. "Our initial work on this was collaborative. We knew about their draft because we wanted to be on sound footing when we made a recommendation like this."
Laura-Mae Baldwin, M.D., an associate professor of family medicine at the University of Washington in Seattle and the prime author of the study, said she had no idea the inspector general was contemplating civil monetary penalties.
"We are not suggesting that hospitals should be penalized," Baldwin said. "I don't think it's the solution to the dilemma we unearthed. It may even exacerbate the problem."
But Robert Oshel, who also worked on the study, said penalties do carry some benefit.
"Studies have shown that in states where they have penalties, not only do they have better reporting by hospitals but we have better reporting to our data bank," said Oshel, associate director for research and disputes at the HRSA.
Underreporting to the data bank is undoubtedly a problem, a number of studies have found in recent years (See chart).
"It's unlikely that hospitals are just refusing to report," Baldwin said. "Either hospitals are not identifying and disciplining physicians at the rate you think they would, or they are taking actions that don't need to be reported."
Those actions include monitoring professional activities without restricting privileges, or restricting privileges for 30 days or less.
Hospitals admitted they're not enthusiastic about reporting to the data bank but said few disciplinary actions are severe enough to report.
"I'm not surprised we don't see a lot of (these actions), because that's a pretty serious punishment," said Mary Grealy, chief Washington counsel for the American Hospital Association, which opposes the civil monetary penalties. "With the new quality-improvement programs, we would hope we wouldn't have to take that action. Likewise, it's not in the best interest of the hospital to keep a physician on staff who's going to harm patients."
However, some consumer advocates question hospitals' motives.
"It's not believable that hospitals with hundreds of doctors have never had one doctor in 10 years who didn't merit reporting to the National Practitioner Data Bank," said Sidney Wolfe, M.D., director of Public Citizen's health research group. "Hospitals need revenue, and offending doctors by reporting them means those doctors are going to take that revenue stream and go somewhere else."
It is unclear how the HRSA plans to monitor the reporting requirement.
"We don't have a team of investigators to prowl through peer-review records," Oshel said. "But we do have people bring cases to our attention, usually the person harmed by the physician. Then we take it from there."