[Federal Register Volume 64, Number 39 (Monday, March 1, 1999)]
[Rules and Regulations]
[Pages 9921-9922]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-4871]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Health Resources and Services Administration
45 CFR Part 60
RIN 0906-AA42
National Practitioner Data Bank for Adverse Information on
Physicians and Other Health Care Practitioners: Charge for Self-Queries
AGENCY: Health Resources and Services Administration, HHS.
ACTION: Final rule.
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SUMMARY: This final rule amends the existing regulations implementing
the Health Care Quality Improvement Act of l986 (the Act), which
established the National Practitioner Data Bank for Adverse Information
on Physicians and Other Health Care Practitioners (the Data Bank). The
final rule amends the existing fee structure so that the Data Bank can
fully recover its costs, as required by law. This rule removes the
prohibition against charging for self-queries and, therefore, allows
the Data Bank to assess costs in an equitable manner. This is
consistent with both the Freedom of Information Act and the Privacy Act
which allow the Government to charge fees for the reproduction of
records. The Data Bank will continue its current practice of sending to
the practitioner in whose name it was submitted--automatically, without
a request, and free of charge-- a copy of every report received by the
Data Bank for purposes of verification and dispute resolution.
EFFECTIVE DATE: These regulations are effective March 1, 1999. The
Department has announced as a notice, published elsewhere in this
issue, the actual fee and its effective date.
FOR FURTHER INFORMATION CONTACT: Mr. Thomas C. Croft, Director,
Division of Quality Assurance, Bureau of Health Professions, Health
Resources and Services Administration, Parklawn Building, Room 8A-55,
5600 Fishers Lane, Rockville, Maryland 20857; telephone: (301) 443-
2300.
SUPPLEMENTARY INFORMATION: On March 24, 1998, the Secretary published a
Notice of Proposed Rulemaking (NPRM) (63 FR 14059) in order to remove
the prohibition against charging practitioners a fee when they request
information about themselves (self-query). The Department received four
public comments opposing the provisions of this rule. The Secretary
would like to thank the respondents for the thoroughness and quality of
their comments. Among the four comments received, seven specific issues
were raised. These seven issues and the Department's responses to these
issues appear below.
One respondent mistakenly cited Sec. 60.12 of the Data Bank
regulations (45 CFR part 60) as a section of the legislation, the
Health Care Quality Improvement Act of 1986, as amended, that led to
the creation of the Data Bank. The respondent subsequently erroneously
concluded that the Act prevents the Data Bank from establishing a fee
for self-queries.
The Department would like to clarify that the Act does not preclude
the Data Bank from charging a fee for self-queries. Section 427(b)(4)
of the Act states:
The Secretary may establish or approve reasonable fees for
disclosure of information * * *
It is the current regulatory language, which this Final Rule amends,
that is preventing the Data Bank from charging a fee for self-queries.
Two respondents indicated that health care practitioners should not
have to pay a fee in order to exercise their Privacy Act rights to view
Data Bank information about themselves.
Section 522(f)(5) of the Privacy Act does allow for the imposition
of fees for providing individuals copies of their own Federal records,
such as those contained in the Data Bank. Nevertheless, the Department
will continue to appropriately respond to its obligations under the
Privacy Act and its own policy of fair information practice by
proactively providing a copy to the practitioner in whose name it was
submitted--free of charge--a copy of every report received by the Data
Bank for purposes of verification and dispute resolution. However, the
Department reiterates that the purpose of the great majority of the
self-queries that the Data Bank receives is not about practitioners'
exercising their Privacy Act rights to access to information about
themselves. In conversations with practitioners who call for self-query
assistance, nearly all indicate that they are acting under duress and
in response to demands from licensing bodies and other entities to
submit copies of their Data Bank records as a condition of doing
business. In exchange for these records, these practitioners expect to
benefit by obtaining licenses to practice, membership in various
organizations or, perhaps, malpractice insurance.
Two respondents questioned why the cost of self-queries should be
shifted to the practitioners, when it is the licensing bodies and other
entities that, by forcing practitioners to submit their self-query
results in order to obtain licensure or membership, are creating the
great increase in the volume of self-queries.
The Department encourages authorized queriers, such as licensing
boards, to query the Data Bank directly to ensure they are getting
accurate and complete information. However, since these organizations
are not required by the Act to query, the Department has no way of
mandating that they query the Data Bank directly, instead of requiring
practitioners to provide self-query responses.
One respondent indicated that the Department should charge the
entities, such as licensing bodies and malpractice insurers, that are
forcing practitioners to provide their self-query responses in order to
obtain licensure or malpractice insurance. The Department does not know
which entities are requiring self-query responses, and has neither the
legal authority to charge the entity nor any practical way to collect
the fee from the entity.
One respondent indicated that the Department should focus its
efforts on thwarting unauthorized entities, such as managed care
organizations without formal peer review processes, who are ``abusing
the law'' by requiring practitioners to submit their self-query results
in order to obtain membership.
The Department shares these concerns about unauthorized entities
obtaining Data Bank information. However, under current law, the
Department cannot prosecute any act related to the use of Data Bank
information other than unlawful disclosure. It is the Secretary's
position that a practitioner's disclosure of his or her own Data Bank
records is not unlawful disclosure. In other words, practitioners may
give copies of self-query responses to anyone they choose.
One respondent asked that the Department take into account the
financial burden the self-query fee would place on physicians,
particularly young physicians as they apply for licensure and
membership.
The Department will make every effort to ensure that the self-query
fee is nominal and no more than is necessary to recover the costs of
processing.
[[Page 9922]]
One respondent suggested that the Department should consider an on-
line, Internet self-query system to minimize the cost of self-queries.
The Department is actively examining the feasibility of an
Internet-based self-query process, but is concerned that the current
technology may not provide a means of ensuring that a self-query
submitted via the Internet is actually from the practitioner in whose
name the query is made. If an Internet-based approach is ultimately
implemented, cost savings would be passed along to queriers.
The Department also notes that individual practitioners have
expressed almost no opposition to the imposition of a self-query
charge. Indeed, the current self-query form, introduced in April of
1998, includes a field for the practitioner's credit card number. This
field was included when other changes were made to the form so that the
Data Bank could begin collecting the self-query fee, if ultimately
imposed, without having to print another set of forms. Thus,
practitioners who self-query have had constructive notice of the
possibility of the imposition of a fee since April of this year.
Despite the fact that the form does not list a specific charge, and the
instructions clearly indicate that no charge is being imposed at this
time, practitioners have willingly provided their credit card numbers
on the new form. Furthermore, in conversations with practitioners who
call the Data Bank for assistance in completing the self-query form,
there have been no complaints about the possibility of paying a fee for
self-query processing. The Data Bank, of course, has not actually
charged for any self-queries. We believe that the fact that
practitioners have willingly provided their credit card numbers on the
new form without complaint is a very significant indication that there
is little or no opposition by individual practitioners to imposition of
a fee for the service of providing a self-query response.
Therefore, the change to remove the prohibition against charging
practitioners a fee when they request information about themselves has
been retained as proposed. The Department has amended Sec. 60.12 by
deleting the phrase ``other than those of individuals for information
concerning themselves'' in the first sentence of paragraph (a).
A notice published elsewhere in this issue of the Federal Register
announces the fee for self-queries and the effective date of the
change. As with other changes, this fee will be subject to change as
further costs may warrant.
Economic Impact
Executive Order 12866 requires that all regulations reflect
consideration of alternatives, of costs, of benefits, of incentives, of
equity, and of available information. Regulations must meet certain
standards, such as avoiding an unnecessary burden. Regulations which
are ``significant'' because of cost, adverse effects on the economy,
inconsistency with other agency actions, effects on the budget, or
novel legal or policy issues, require special analysis.
The Department believes that the resources required to implement
the requirement in these regulations are minimal. Therefore, in
accordance with the Regulatory Flexibility Act of 1980, the Secretary
certifies that these regulations will not have a significant impact on
a substantial number of small entities. For the same reasons, the
Secretary has also determined that this is not a ``significant'' rule
under Executive Order 12866.
Paperwork Reduction Act of 1995
The National Practitioner Data Bank for Adverse Information on
Physicians and Other Health Care Practitioners regulation contains
information collections which have been approved by the Office of
Management and Budget (OMB) under the Paperwork Reduction Act of 1995
and assigned control number 0915-0126. This amendment does not affect
the recordkeeping or reporting requirements in the existing
regulations.
List of Subjects in 45 CFR Part 60
Claims, Fraud, Health maintenance organizations (HMOs), Health
professions, Hospitals, Insurance companies, Malpractice.
Dated: October 29, 1998.
Claude Earl Fox,
Administrator, Health Resources and Services Administration.
Approved: November 18, 1998.
Donna E. Shalala,
Secretary.
Accordingly, 45 CFR part 60 is amended as set forth below:
PART 60--NATIONAL PRACTITIONER DATA BANK FOR ADVERSE INFORMATION ON
PHYSICIANS AND OTHER HEALTH CARE PRACTITIONERS
1. The authority citation for 45 CFR part 60 continues to read as
follows:
Authority: Secs. 401-432 of the Health Care Quality Improvement
Act of 1986, Pub. L. 99-660, 100 Stat. 3784-3794, as amended by sec.
402 of Pub. L. 100-177, 101 Stat. 1007-1008 (42 U.S.C. 11101-11152).
2. Section 60.12, is amended by revising the first sentence in
paragraph (a) to read as follows:
Sec. 60.12 Fees applicable to requests for information.
(a) Policy on Fees. The fees described in this section apply to all
requests for information from the Data Bank. * * *
* * * * *
[FR Doc. 99-4871 Filed 2-26-99; 8:45 am]
BILLING CODE 4160-15-P