Fight for access to Medicare payments to physicians nearly over

(Editor’s note: This is a revision of the original post, which is available on Ornstein’s Tumblr site.)

The Centers for Medicare and Medicaid Services (CMS) said yesterday that it will soon begin releasing data on payments to individual physicians in the Medicare program.

Why is this such a big deal?

Because it overturns a longstanding agency policy that for more than three decades had barred the release of this very information. And, it follows advocacy for greater transparency by numerous news organizations, including the Association of Health Care Journalists.

CMS-9-3-13-1AHCJ’s board of directors last September sent a letter of comment to CMS asserting the public’s interest in release of this information. “As long as patient confidentiality is protected, we see no reason why taxpayers should not know how individual physicians are spending public dollars,” said the letter, signed by AHCJ executive director Len Bruzzese.

Some background:

In 1979, a federal court in Florida granted an injunction that prohibited the U.S. Department of Health, Education and Welfare (the predecessor to the Department of Health and Human Services) from releasing data on how much physicians earned under the Medicare program.

A year later, the HEW department adopted a policy that stated, “the public interest in the Department’s disclosure of the amounts that had been paid to individual physicians under the Medicare program was not sufficient to compel disclosure under the Freedom of Information Act.”

In 2006, the group Consumers Checkbook sought Medicare claims data under the Freedom of Information Act for all procedures performed by physicians who treat Medicare beneficiaries in a number of states and the District of Columbia. The U.S. Department of Health and Human Services denied the request, citing physician privacy, and Consumers Checkbook sued. While the organization won initially in federal court, the ruling was overturned on appeal and the data was not released.

Fast forward to 2010. The Wall Street Journal wrote a series of articles called “Secrets of the System,” and its parent company Dow Jones filed a motion in Florida to overturn the injunction prohibiting the release of physician-specific payment information. (The Center for Public Integrity also wrote a series of excellent articles called “Manipulating Medicare.”)

In its first article, The Journal wrote:

The Wall Street Journal, in conjunction with the nonprofit Center for Public Integrity, attempted for nearly a year to obtain the database. As part of the effort, the CPI filed a lawsuit against the Department of Health and Human Services, which houses the Medicare program. The Journal and CPI wanted the data at no cost; the government wanted $100,000 for eight years of data. In a settlement, The Journal and CPI obtained the requested data at a substantially reduced fee. They later obtained a decryption key to identify individual providers but signed a contract agreeing not to publish such identities in most cases.

The database, technically known as the Carrier Standard Analytic File, focuses on doctors and others paid on a fee-for-service basis. It contains 5% of all beneficiaries, and includes all doctor claims that Medicare paid directly in association with their care.

But even with these limitations, the power of the database is clear. If it were fully available, with doctors clearly identified, the public could expose countless ways in which some health-care providers misuse or waste taxpayer dollars, health-care advocates say. The database could even provide some information on physician quality. Especially in the digital age, the database could be a powerful tool for holding the $500 billion Medicare program accountable.

“It’s very hard to defend ignorance and willful hiding of data in the 21st Century,” said former House Speaker Newt Gingrich, who has called for the database to be public as long as patients are kept confidential. “Our estimate is that the federal government, in Medicare and Medicaid alone, loses between $70 billion and $120 billion a year to crooks. You ought to be able to identify those.”

While the Journal was limited in what it could say in its stories, it won its legal battle. In May 2013, a Florida judge issued an order vacating the injunction.

A few months later, after the window for appeals had ended, CMS requested comments from the public about whether it should begin releasing the information. Between August and September, CMS received more than 130 comments representing the views of 300-some organizations and individuals (You can download and read them here.)

The American Medical Association and other physician groups wrote that they supported the “appropriate” use of the data but they urged caution. “The public’s interest in disclosure of claims and payment data resulting from government health care programs must be balanced against the confidentiality and personal privacy interests of physicians, their practice entities, and patients, who may be adversely impacted by disclosures.  Steps must be taken to ensure that the release of data does not mislead the public into making inappropriate and potentially harmful health care treatment decisions.  In light of these considerations, the release of raw data regarding physician claims for providing medical services should be limited for specific purposes and with appropriate safeguards.”

On Tuesday, CMS announced its decision. It is withdrawing its 1980 policy barring the release of the information and instead said it would evaluate requests for the data on a case-by-case basis. It also said it expected to release aggregate information on physician pay soon. The new policy will take effect in 60 days.

“The decision to modify the policy also takes into account HHS’ strong commitment to greater data transparency over the past several years,” Jonathan Blum, CMS’ principal deputy administrator wrote in a blog post. “In 2010, HHS launched the Health Data Initiative to promote transparent, innovative, and safe data use.  As part of this effort, CMS has 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.”

He continued: “As CMS makes a determination about how and when to disclose any information on a physician’s Medicare payment, we intend to consider the importance of protecting physicians’ privacy and ensuring the accuracy of any data released as well as appropriate protections to limit potential misuse of the information.  And as always, we are committed to protecting the privacy of Medicare beneficiaries.”

As this fight has played out, CMS released data to ProPublica on which drugs physicians prescribe in Medicare’s drug program, known as Part D. You can now look up your doctor’s prescribing patterns online.

Meanwhile, a push for access to Medicare’s data continues to gain steam. Sens. Ron Wyden (D-Ore.) and Charles Grassley (R-Iowa) are pushing legislation to make Medicare claims data available to the public. The language is included in a bill expected to be considered in the next couple of months to revamp the physician payment formula under Medicare.

3 thoughts on “Fight for access to Medicare payments to physicians nearly over

  1. Pingback: CMS data should give reporters a plethora of new stories to cover | Association of Health Care Journalists

  2. Pingback: Key congressional committees agree on ‘Doc Fix’ | Association of Health Care Journalists

  3. Avatar photoLaura Henze Russell

    Does the dataset include information on dentists? AHCJ and ProPublica might propose every time health or medical is cited, additionally ask about dental to promote the concept of parity, which was long fought and hard won for mental health and care.

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