Privacy Bills in the Senate, a First Look: Morgan Carroll is Solving the Wrong Problem with Physician Database

by Eileen | 12:10 pm, January 23, 2013 | Comments Off

WHAT: SB 13-026, Expanding the class of medical professions required to maintain profiles with the state

WHO: Sens. Morgan Carroll (D-29) and Irene Aguilar (D-32)

WHY: Because it’s easier than verifying the accuracy of existing data

SB 026 proposes an update to a bill passed in 2007 and already expanded once, in 2010.  The current proposal would expand the  number of professions who have to provide information about malpractice actions of conflicts and interest to a state database in order to retain their licenses.  Of course, none of this will benefit citizens if the database is mismanaged.

The story thus far, for those of you just now joining us. When 23-year-old Michael Skolnik passed out with no history of that sort of thing and no readily apparent reason why, he went to the ER. As would any reasonable person. There, a physician told him he’d likely suffered a seizure, itself likely a side effect of medication he’d been on. One routine CAT scan later, Michael Skolnik was informed he had a three-millimeter mass on his brain and a neurosurgeon was telling him emergency surgery was the only course. By way of soothing the patient’s anxious parents, he added that he’d performed the procedure he was recommending many times.

If, by many times, one means, ‘once before’. The second time did not go well; that much was apparent before Michael Skolnik had been moved to recovery. For the next three years, he was a full-time patient, enduring every conceivable side effect before dying at the age of 25. The surgeon neglected to inform anyone he’d recently faced a malpractice suit in Georgia at the time he cracked open Michael Skolnik’s head.

(By way of disclosure, the Medical Board found he’d done nothing wrong, which is why his name is withheld and why he’s still practicing in the state.)

The state sprang into action, taking only three years to do something they should have taken care of long ago. Now, having provided an utterly bungled implementation, they are oversolving the problem.

Yes, that’s right, I have doubts about the need for this bill.

OK, the 2007 Michael Skolnik Medical Transparency Act created the  ‘Health Professional Profiling Program‘ (HPPP), overseen by the Department of Regulatory Agencies (DORA). In order to activate or renew a license, physician now disclose if they’ve ever faced a malpractice claim, been stripped of a license in another state, been fired for violating professional standards, or are accepting money from pharmaceutical companies. This is all placed on a publicly available website, which is horribly designed.

In 2009, a new bill modified the disclosure requirements.  The next year, the state ignored the fact that their webpages are user hostile and expanded the original Act to include oodles more professions, which actually made sense. The state still did not understand that transparency requires ease of access, or that information needs veracity to have value.

Now, a bill is afoot that would further expand the list of people subject to the reporting requirements, such as CNA’s, who empty bedpans and have a skill set that allows them to diagnose when a patient’s head has fallen off, with 60% accuracy.

The problem is two-fold. The current bill wants to extend an intensive level of oversight and regulation far beyond its appropriate sphere (1) though what’s needed is for the state to do a better job with the information it already has (2). Such as making it easy to find and compressing it down so that I don’t get repetitive motion injuries by scrolling through it all.  Oh, and they might do something to verify their data.  More on that below.

Also, the state might consider not granting damn licenses to quacks. If I see some twerp has a license and kills his patients, my first thought has less to do with swooning gratitude that Colorado makes such data available and more to do with wondering why the survivors of experimental lobotomies are making licensing decisions that affect the rest of us.

That, of course, matters little when the accuracy of the database is debatable. It’s self-reported information, making it into a database where a good physician looks the same as a liar. That physicians kind of suck at disclosing malfeasance and conflict of interests isn’t news, and the current set up isn’t a solution. Whether or not your medical care providers are qualified and responsible, whether or not they’re have a financial stake in something that may cloud their judgment about providing care, are big deals – situations where the patient’s interest overrides absolute privacy for the licensee.

Such is the way that a good idea – make it easy and free for people to check up on those who provide them with medical care – gets mangled.

Of course, solutions that would centralize accurate information would rock the boat. Courts know all about malpractice suits and how their disposition. Professional societies have their own data about disciplinary action and complaints against practitioners. Insurers can certainly talk about claims. Past employers are well aware of the reasons for a separation. And pharmaceutical companies know who is and is not on their payroll. However, compelling any of those groups to share data on a public system would run afoul of existing laws, raise real questions about the extent to which the interests of society trump those of data holders and the people interested in keeping that data private, and it would definitely displease powerful people. There would also be precedents to consider and some of the concerns over accuracy would remain. It would be messy and detailed and difficult.

In contrast, the existing set-up is a politician’s dream. Take credit for having done something without actually ticking off any interest groups. The idea itself is a good one, so any critics are reduced to explaining what they have against a program to inform patients about their care providers.

Naturally, the state gets something out of this. What the average citizens sees on looking up someone is a small subset of the questions professionals answer to get their licenses. The data the state keeps for itself constitute an all-out assault on privacy, asking all manner of intrusive questions about a medical professional. Doctors and nurses who have ever had a single therapy session or taken anything stronger than antacids are kindly asked to recount their own medical history for the state. That needs to go far more than Coloradans need a bloated database full of unverified information.

It’s thing like this that _________________ . Where it really does matter to have solid information, no one is even trying. Yet money gets spent and the state needles for all sorts of irrelevant and private data. The FAQ promises that, “…staff monitors whether all information is provided, processes complaints about inaccurate information and issues administrative fines to individuals found to be noncompliant with the requirement.” The burden is on, well, someone else, to verify data and go through the entire problem of getting the state to change it. What that means for any of us is that we have no way of knowing if anything on a HPPP is accurate.

This checking up ought to be the state’s job in granting licenses and an employer’s job in hiring someone. I can certainly check out a dermatologist or a dentist before making an appointment. But what about people in an emergency situation? Are they supposed to bounce off the gurney and navigate the state’s hideous website then and there?  People making emergency choices, slammed with bad news, aren’t ideal decision makers.  Especially with all the regulations that medicine already operates under, I think I should be able to have well-placed confidence that the hospital checked out an applicant thoroughly before hiring him and that, if he holds a state-granted license, the state has done a lot more than ask him if he thinks he should be licensed.

Speaking of conflict of interest.

This isn’t an uncorrectable bill.  One of the professions proposed for addition to the database – pharmacists – should have been there all along.  Nor would it be impossible to amend it so that data on HPPP’s are reliable.  As it is, the last session passed a resolution, breathtaking in its myopia, ‘encouraging’ the state to create a database of medical practitioners…by requiring doctors to take the time to provide data the state already have but don’t want to bother pulling together.  However, we at least know the idea of a comprehensive and reliable database has crossed someone’s mind.  The original 2007 Act called for a system that, “maintains the integrity of the information…”; it just never specified how that was to be done or by whom.

I wouldn’t be surprised to see the bill pass.  Sens. Carroll and Aguilar are, respectively, the Majority Leader and the Assistant Majority Leader in the Senate.  Morgan Carroll sponsored the original 2007 legislation, the 2009 modification, and the 2010 expansion.  Irene Aguilar chairs the Senate Health and Human Services Committee, where she can shepherd the bill through the first round.  Back in 2007, the initial bill passed unopposed in the House and 33-1 in the Senate.  Seriously, who can be against patient safety?

Bottom line, I think SB 026 passes, and it’s hardly the worst thing that will come out of session, even though it will extend the reporting requirement to the point of silliness.  This is one of those case where I can actually get behind some fairly aggressive and forceful action to ensure than information is accurate, complete, and timely, and I’d like to see a solid plan for verifying what goes into the HPPP database more than to see marginal data added under the existing scheme.

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