It is readily apparent that electronic media and the internet are making it much easier to collect, organize and maintain data regarding individuals in our society. This is as true with respect to health care employees, and physicians in particular, as it is of anyone else. Information about physicians’ conduct, publications, and interactions with industry, as well as their regulatory, investigatory, and disciplinary history, is increasingly available through public sources. Information about practice patterns and quality of clinical performance can be readily analyzed, as data gathering tools begin to proliferate, and “analytics” is a rapidly growing field. Perhaps by September 30, 2013 (under the current regulatory timetable), even more information will become available, as the public reporting provisions of the Physician Payment Sunshine aspect of the Patient Protection and Affordable Care Act become operational. Various state counterparts are already in effect. These trends coincide with the development of new paradigms for care delivery, which will require hospitals, health plans, and other providers to learn about the quality and productivity of their medical staff members and, perhaps more importantly, prospective members of the medical staff. New payment methodologies also drive the need for comprehensive information about clinicians and their practice patterns.
As businesses begin to take advantage of these developments, collecting, organizing and analyzing such data to sell to end users in the healthcare industry, the applicability of the Fair Credit Reporting Act (FCRA) can easily be overlooked. The FCRA, better known for its application in the credit arena, regulates the collection, dissemination and use of “consumer information” for employment purposes as well, and provides various protections for individuals related to the use and accuracy of this information. “Employment” for the purposes of the FCRA is very broadly defined, and likely includes deciding whether to engage physicians in various capacities, as well as whether to initiate, restrict or terminate clinical privileges or membership on the medical staff.
Requirements of FCRA in these circumstances include:
- Individuals must consent to the report being given to the employer;
- Individuals must be informed of information used against them, and be advised of the identity of the entity providing the information;
- Individuals must have the right to dispute incomplete or inaccurate information; and
- Individuals have the right to obtain all of the information concerning them that is in the Credit Reporting Agency’s files.
Many states have consumer protection and reporting laws as well, with analogous, albeit differing, requirements.
In this age of free flowing information, hospitals, health plans, other providers, and suppliers of information to them should (i) develop an understanding of how technology and the law interact to increase the amount of information about them that is available; and (ii) be cognizant of requirements beyond the healthcare environment, such as those found in the Fair Credit Reporting Act, that apply to and may limit the manner in which the information is gathered and used.