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New Ruling Limits Release of Some Physician Data Under Freedom of Information Act

STUMP, ELIZABETH

doi: 10.1097/01.NT.0000354538.12495.cb
DEPARTMENT: LEGAL-EASE
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Should consumer groups be allowed to have access to raw data — such as Medicare billing records — to rate physicians? The answer is no, according to the District of Columbia Circuit Court of Appeals.

The case raised several questions: Does the Freedom of Information Act (FOIA) authorize the government to release information regarding Medicare payments to specific physicians, and in what areas do physicians have the right to privacy?

In January the federal appeals court reversed a 2007 lower-court ruling (Consumers' Checkbook v. United States) that had favored the nonprofit Consumers' Checkbook group by directing the government to release Medicare physician payment records under the federal FOIA.

Consumers Checkbook did not ask for actual payments made to physicians but rather the procedure codes, and the number of procedures performed, for each physician, said Ronald S. Connelly, an attorney at Powers, Pyles, Sutter, and Verville, PC, in Washington, DC, who along with colleague Robert Portman wrote the amicus brief for 15 medical societies in this case.

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“This information, however, could be fairly easily linked with the Medicare fee schedule, which is publicly available,” he said. “Because the amount of individual payments would have been readily ascertainable, Checkbook's request was tantamount to a request for data on the payments themselves.”

Both the American Medical Association (AMA) and the US Department of Health and Human Services (HHS) challenged the original lower-court decision, arguing that Medicare claims data have no bearing on the quality of medical services and that it might mislead patients. (The AMA, not named in the original suit, intervened on appeal in the Court of Appeals.)

The AMA attorneys argued that while it supports transparency and sharing appropriate quality data to make better health care decisions, releasing raw data could potentially damage patient-physician relationships and lead to poor health care decisions.

In the January 2009 decision, the court stated that the information requested — identifiable Medicare payments, which comes from personnel and medical files — is exempt from release under the FOIA, said Connelly. The decision means that the federal government may decline to disclose physician-identifying payment information under the FOIA, he said. But he noted the case does not preclude the disclosure of other kinds of physician-identifying information.

“Presumably, the Medicare program could release statistics on physician practices, such as the number of procedures performed or patients seen per year,” Connelly continued. “So long as the statistics could not be linked to the payments received from Medicare, their release would not be barred by the Checkbook decision.”

“This ruling is a huge win for physicians as it confirms that physicians have a right to privacy, namely that disclosure of Medicare payments to individually identifiable physicians is not allowed,” AMA trustee Jeremy Lazarus, MD, chair of the AMA Board of Trustees Task Force on Quality, Safety, and Electronic Health Records, told Neurology Today. “The majority opinion found that physicians have a substantial privacy interest when compared to the absence of any countervailing public interest in the disclosure sought.”

The bottom line, Connelly said, is that the court ruling decision “provides an individual physician with a basis to seek a court order halting the release of his or her identifiable Medicare payment information.”

But Michael Millenson, a health care analyst and president of Health Quality Advisors LLC, in Highland Park, IL, and author of Demanding Medical Excellence: Doctors and Accountability in the Information Age (University Of Chicago Press, 2000), called the ruling a temporary setback for transparency and accountability.

Millenson, Mervin Shalowitz, MD, Visiting Scholar at Northwestern University's Kellogg School of Management, has testified before Congress on health care choices and pay-for-performance programs.

“I'm not sure how doctors benefit if the public is denied information that every health insurer has and can use in ways that may be far more questionable than what might be done by the public, which generally supports its physicians,” he said.

Millenson noted that the federal and state governments “have long publicized the names of doctors and hospitals who get the most money from Medicaid or Medicare. The implication, of course, is that they are somehow cheating the system. How much better it would be for everyone involved to be able to look at the value of the care provided, instead.”

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Yet Medicare claims data don't demonstrate the value of care, according to Bruce Sigsbee, MD, an AAN Professional Association trustee and medical director of the Pen Bay Physicians and Associates in Rockport, ME. Claims data also provide the basis for many pay-for-performance programs, he said, and the data are “limited for quality purposes but are excellent for assessing costs and resource utilization. Those programs are often a proxy for cost containment, not quality.”

©2009 American Academy of Neurology