On May 31, 2013, a Florida federal district court lifted a Carter-era injunction that prevented the Centers for Medicare and Medicaid Services (CMS) from disclosing the physician payments section of the a database known as the Carrier Standard Analytic File—which includes details of Medicare payments made to individual physicians.
Federal investigators use the database to uncover fraudulent claims, but CMS drew the line at public dissemination. Until this court action, CMS kept information on specific providers private, confidential and hidden from the public.
With the lifting of that injunction, CMS is now considering if and how the agency will disclose specific payments made to physicians. Physicians appear divided on the issue.
Injunction of Privacy
In 1978, as it had done in 1977, CMS planned to release a list of all physicians and providers who received Medicare reimbursements including the amount paid to each physician. Before the second list could be released, the Florida Medical Association and six physicians, joined by the American Medical Association (AMA), filed a lawsuit to enjoin the Carter Administration from releasing this data.
In 1979, a federal court in Florida issued the injunction against public disclosure saying the information was protected by the Privacy Act and that physicians’ right to privacy trumped the public’s right to know about specific payments.
Dow Jones & Co. challenged the injunction in 2011.
In her ruling lifting the injunction, U.S. District Judge Marcia Morales Howard said that new case law had narrowed the scope of the Privacy Act over the ensuing three decades and no longer supported such a broad injunction.
CMS says since the 1979 injunction, a number of changes have occurred related to physicians’ privacy interests in maintaining the confidentiality of their Medicare payments and the public interest in disclosure of such amounts. For example:
Public interest in the information has increased given the substantial growth in size of Medicare since 1979, both in terms of total cost per year and as a portion of the federal budget
Changes in the Medicare reimbursement system that have resulted in greater standardization of payment amounts for physician services
The creation of the Qualified Entity program (known as Medicare data sharing for performance reporting), authorized by Section 10332 of the Affordable Care Act, which allows CMS to disclose Medicare claims data to qualified entities for the production of public performance reports
The greater consequences of Medicare fraud, waste, and abuse, which disclosure of payment information could help expose
In addition, the agency says during the past several years, CMS’ management role as a processor of Medicare claims for services has evolved toward becoming “a more effective steward and partner of transformation in the health care system with the goal of incentivizing high quality care and better health at lower costs.”
CMS Seeks Support for Disclosure
With this transformation, the agency says it now receives multiple requests from various stakeholders for physician payment and reimbursement data. These requestors argue that this data is an important part of the ongoing research, assessment, and evaluation of programs and services necessary to make improvements in the delivery, quality, and cost of care.
Before acting on its own, the agency wants to confirm that the release of such information would serve the public good and asked for public feedback.
Specifically, CMS wants to know:
How to properly weigh the balance between any potential privacy interest a provider has and the public interest in disclosure
What specific policies CMS should consider with respect to disclosure of individual physician payment data, especially in order to prevent the release of any health information on any Medicare beneficiary
What form any potential data release might take (e.g., line item claim details, aggregated data at the individual physician level)
Health Data Initiative
CMS has been in disclosure mood since 2010, when its parent agency, HHS (U.S. Department of Health and Human Services), launched the Health Data Initiative to promote transparent, innovative, and safe data use. CMS is also engaged with a wide range of public, non-profit, and private sector stakeholders to foster the availability and use of health care data to drive innovations that improve health and health care.
Since the initiative, CMS says it has released an unprecedented amount of aggregated data in machine-readable form. These data range from previously unpublished statistics on Medicare spending, utilization, and quality at the state, hospital referral region, and county level, to detailed information on the quality performance of hospitals, nursing homes, and other providers. In May 2013, CMS released information on the average charges for the 100 most common inpatient services at more than 3,000 hospitals nationwide, followed in June with the release of average charges for 30 selected outpatient procedures.
Physician Fears and Debate
As argued by the lawyers who brought the original AMA lawsuit, physicians are worried that specific information about their Medicare income might be disclosed. The data could, for example, make it possible to uncover specific patient case performance, which in turn could be used to determine whether specific physicians are performing the appropriate procedures. Also, if line items are disclosed, the data could be used to identify physicians with the highest number of procedures performed during a given period of time. That could be used to gauge a physician’s patient volume or experience per period compared to competitors.
However, physicians are not united in their opinion about whether such data should be made public.
ACPE Poll: Physician Leaders Divided
According to a new poll conducted by the American College of Physician Executives (ACPE), 46% of responding ACPE members said the data should not be made public and 42% said the data should be made public—12% were unsure. ACPE bills itself as the nation’s largest health care organization for physicians in leadership positions.
ACPE emailed its 11,000 members and 588 responded. Participants were also asked to share their comments. According to the ACPE here is some of what their members had to say.
In Favor of Privacy
Those who favored keeping the information private said the data is too easily misinterpreted by the public and could be used to portray physicians in a negative and unfair light.
“What purpose does this action serve?” wrote Kenneth Maxwell, M.D., from Winston Salem, North Carolina. “Publishing the amount of Medicare reimbursement without some form of normative information provides no useful information for consumers.”
Several physicians said that reimbursement is complicated by a number of factors, including geographical location, the type of procedure performed and the cost of medication. They say the time and effort it would take to translate the data might be better spent on other resources.
“This is not a form of transparency that will benefit budgeting, planning or patient care,” said James C. Salwitz, M.D., from New Brunswick, New Jersey.
In Favor of Disclosure
Those who favor disclosure argued the public has a right to know how their taxpayer dollars are being spent. As consumers continue to demand increased access to health care data, the move to greater transparency will only grow stronger. It doesn’t make sense to fight it, they say.
“We live in an information age,” wrote Daniel McDevitt, M.D., FACS, from Atlanta, Georgia. “We should be able to look up online where our money is going at all times.”
Others said fighting to keep the information private will make physicians appear overly secretive. “It gives an appearance of having something to hide, and thus reduces public trust in our profession,” said Paul Buehrens, M.D., from Seattle, Washington. “I just can’t understand that attitude.”
Jon Burroughs, M.D., MBA, FACHE, FACPE, said, physicians and healthcare organizations that are not prepared for complete transparency of performance data are not going to excel in an era of accountability where internal and external customers will expect reliable quality, safety, service, and cost data to make informed healthcare decisions. “Third party payers and educated consumers will demand this data prior to making healthcare decisions and large employers/payers will preferentially divert beneficiaries and employees to high quality/low cost venues (as Wal-Mart and large insurers currently do now). This is our future and those who embrace it will excel and those who resist it will not.”
Accuracy and Fairness
Peter Angood, M.D.
Peter Angood, M.D., ACPE’s CEO, said the nearly even split in opinion suggests CMS was wise to ask the physician community for feedback, and should spend some time deliberating over the responses before making any decisions.
“No matter what your opinion on this subject may be, there’s no doubt the move toward greater transparency in medicine and increased public reporting is here to stay—and we believe it is necessary,” said Angood. “Part of our job as physician leaders is to help ensure that when health care data is presented to the public, it is accurate, fair, meaningful and useful.”
CMS has not provided a timeline for making a decision about releasing the data other than a September 6, 2013 deadline for receiving public comments. The AMA, which continues to oppose the release of the data, may decide to appeal the ruling. “Medicine has stood its ground during the last 34 years to defend an injunction that favored individual rights and protected innocent physicians from becoming targets of suspicion. The AMA is considering its options on how best to continue to defend the personal privacy interests of all physicians,” reportedly said AMA President-elect Ardis Dee Hoven, M.D.
Under current CMS rules, news organizations and third parties will have to file Freedom of Information Act requests to gain access to the data and the agency could still decide to deny requests on a case-by-case basis.
In a recent Wall Street Journal article, Laura Handman, an attorney who represented Dow Jones in the case said, “Given President Obama’s emphasis on data transparency, I feel his government will give this very thoughtful consideration.”
Judge Howard’s ruling may be appealable but the overall trend to more disclosure seems unstoppable. While physicians seem to be divided over this issue, the trend is unambiguous.