[Federal Register: March 24, 1998 (Volume 63, Number 56)]
[Proposed Rules]               
[Page 14059-14060]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24mr98-27]


[[Page 14059]]

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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: Notice of proposed rulemaking.

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SUMMARY: This Notice of Proposed Rulemaking (NPRM) proposes an 
amendment to the existing regulations implementing the Health Care 
Quality Improvement Act of 1986, which established the National 
Practitioner Data Bank for Adverse Information on Physicians and Other 
Health Care Practitioners (the Data Bank). The proposed regulations 
would amend the existing fee structure so that the Data Bank can fully 
recover its costs, as required by law. This proposed rule would give 
the Data Bank the authority to charge for self-queries and, therefore, 
assess costs in an equitable manner.

    The data Bank will continue its current practice of sending a 
copy--automatically, without a request, and free of charge--of every 
record to the practitioner, in whose name it was submitted, for 
purposes of verification and dispute resolution.

DATES: Comments on this proposed rule are invited. To be considered, 
comments must be received by May 26, 1998.

ADDRESSES: Written comments should be addressed to Neil Sampson, Acting 
Associate Administrator, Bureau of Health Professions (BHPr), Health 
Resources and Services Administration Room 8-05, Parklawn Building, 
5600 Fishers Lane, Rockville, Maryland 20857. All comments received 
will be available for public inspection and copying at the Office of 
Research and Planning, BHPr, Room 8-67, Parklawn Building, at the above 
address, weekdays (Federal holidays excepted) between the hours of 8:30 
a.m. and 5 p.m.

.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: The Health Care Quality Improvement Act of 
1986 (the Act), Title IV of Pub. L. 99-660, enacted November 14, 1986, 
authorized the establishment of the National Practitioner Data Bank for 
Adverse Information on Physicians and Other Health Care Practitioners 
(the Data Bank). Regulations implementing the Data Bank are codified at 
45 CFR part 60.
    Section 426(b)(4) of the Act, as amended, authorizes the Secretary 
to charge fees for disclosure of information (user fees). The 
Department of Health and Human Services Appropriations Act, 1997, Title 
II of Pub. L. 104-863, enacted September 30, 1996, gives the Data Bank 
the authority to recover its full cost of operations through user fees. 
No taxpayer funds are used to operate the Data Bank. Title II of Pub. 
L. 104-863 states:

    That in addition to fees authorized by section 427(b) of the 
Health Care Quality Improvement Act of 1986, fees shall be collected 
for the full disclosure of information under the Act sufficient to 
recover the full costs of operating the National Practitioner Data 
Bank, and shall remain available until expended to carry out that 
Act: * * *

    Section 60.12(a) of the regulations, entitled ``Fees applicable to 
requests for information.'', cover the Data Bank's authority to charge 
a fee for all requests for information other than those by individual 
health care practitioners requesting information concerning themselves 
(self-queries). Section 60.12(a) states:

    (a) Policy on Fees. The fees described in this section apply to 
all requests for information from the Data Bank, other than those of 
individuals for information concerning themselves.

    During 1996, the volume of self-queries has dramatically increased. 
The Data Bank is currently processing 1,500 self-queries a week, with 
no cost to the practitioners requesting the information. The volume of 
self-queries is expected to remain at this level or increase even 
further. It is estimated that the cost of processing self-queries last 
year exceeded $500,000. When the current regulations exempted self-
queries from the Data Bank's fee structure, the large volume of self-
queries and the associated processing costs were not anticipated.
    A review by the Department indicates that many organizations which 
are not mandated by law to query the Data Bank (e.g., State Boards and 
other entities) are requiring practitioners to self-query and submit 
the results along with their applications for licensure/re-licensure, 
or membership. The Department recognizes that the purpose of these 
self-queries is not about practitioners' exercising their Privacy Act 
rights to access to information about themselves. Based on 
conversations with practitioners who call for self-query assistance, 
few, if any, are exercising their Privacy Act rights. Instead they are 
acting under duress and in response to demands from licensing bodies, 
and other entities. At the same time, they also expect to benefit by 
obtaining licenses to practice, membership or malpractice insurance. In 
fact, it has always been the policy and practice of the Data Bank to 
proactively provide a copy--free of charge--of every record to the 
practitioner, in whose name it was submitted, for purposes of 
verification and dispute resolution.
    The Department recognizes and supports its obligations under the 
Privacy Act and its own fair information practice policies to continue 
to proactively provide a copy of every report it receives to the 
subject of the report (the practitioner) at no charge. However, if the 
practitioner wants the additional feature of a copy of his or her 
entire Data Bank file in one package, this proposed rule change would 
not deny the practitioner that right; it would simply charge a fee, 
based on cost-recovery, of providing such information.
    Therefore the Department proposes to amend paragraph (a) of 
Sec. 60.12 by deleting the phrase ``other than those of individuals for 
information concerning themselves'' in the first sentence. This change 
is intended to give the Data Bank the authority to charge practitioners 
a reasonable fee when they request information about themselves.
    Upon issuance of the Final Rule, the Department will announce the 
fee for self-queries and the effective date of the change in the 
Federal Register. 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

[[Page 14060]]

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. These proposed amendments do 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: May 20, 1997.
Claude E. Fox,
Acting Administrator, Health Resources and Services Administration.

    Approved: December 15, 1997.
Donna E. Shalala,
Secretary.

    Accordingly, 45 CFR part 60 is proposed to be 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. 98-7505 Filed 3-23-98; 8:45 am]
BILLING CODE 4160-15-M