Law enforcement can access data bank without doctors' knowledge

The rule, a response to the expansion of the National Practitioner Data Bank, is intended to help prevent evidence tampering.

By — Posted Dec. 13, 2011

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Physicians and other health professionals no longer will be notified if someone accesses information about them through the National Practitioner Data Bank for an investigation, according to a federal rule that takes effect Dec. 23.

The rule, an exemption to the Privacy Act, is meant to prevent tampering with evidence and is limited to law enforcement agencies, said David Bowman, a spokesman for the Dept. of Health and Human Services' Health Resources and Services Administration, which administers the data bank.

Law enforcement agencies are authorized to see information on adverse actions against physicians such as medical board disciplinary actions and peer review sanctions. Such queries make up less than 1% of NPDB queries, with an average of 20 by law enforcement annually, according to the rule (link).

"The intent of the exemption is to protect a current or potential criminal investigation," Bowman said. "Historically, there have been very few queries by law enforcement agencies."

Some physicians question the need for the rule. During a 60-day comment period that ended April 18, an unidentified national physician organization cited concerns that the rule would "result in wasted law enforcement resources and would deny physicians due process."

Health professionals who query the NPDB on themselves now are notified of anyone who requested information about them. Doctors can't control information sent to the NPDB, but they have the right to object to anything they believe is inaccurate, said Andrew B. Wachler, a health care lawyer who represents physicians on medical licensure and staff privilege issues.

"You may find that there's something on there that you may want to respond to -- and that reinforces an investigator's suspicion -- but it's not accurate," said Wachler, a partner at Wachler & Associates PC in Royal Oak, Mich. "The question I have is what is the reason for the change? Have we seen that investigations are truly compromised?"

Law enforcement has been exempt from the Privacy Act for a companion data bank, the Healthcare Integrity and Protection Data Bank, since it opened in 1999, Bowman said. In March 2010, the NPDB was expanded to include much of the information from the HIPDB. The new rule is in response to that expansion, he said.

The change will take effect about a month and a half after HRSA restored public access to de-identified NPDB records. Public access had been blocked starting Sept. 1 after a reporter for The Kansas City Star linked data bank information to a specific doctor after matching the data with court records.

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Searches for actions against doctors are rising

The National Practitioner Data Bank received more than 4.1 million requests for information on physicians' backgrounds in 2009. There has been a steady increase in such queries since 2003. (Hospital queries are required by law. All others are voluntary.)

YearHospital queriesVoluntary queries

Source: "National Practitioner Data Bank Combined Annual Report, 2007, 2008 and 2009," Dept. of Health and Human Services' Health Resources and Services Administration, September (link)

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