Medicare Data Access for Transparency and Accountability Act of 2013

We previously noted that the Centers for Medicare & Medicaid Services (CMS) is considering extensive publishing of Medicare payment claims data for physicians and issued a notice for comments asking the public about potential privacy concerns. The call for comment came shortly after a federal district court in Florida vacated an injunction issued in 1979 that barred the Department of Health and Human Services (HHS) from disclosing such payment data.

In addition to CMS’ notice, Senators Charles Grassley (R-IA)—co-author of the Physician Payments Sunshine Act—and Ron Wyden (D-OR), introduced the Medicare Data Access for Transparency and Accountability Act (Medicare DATA Act), which is similar to a measure introduced by the lawmakers in 2011. Grassley used his favorite quote from Justice Brandeis (used often during the Sunshine Act legislation), noting that, “Sunlight is the best disinfectant,” which is what he and Senator Wyden “are aiming to accomplish with the Medicare DATA Act.”

This legislation would require the HHS to issue regulations making available a searchable Medicare payment database that would be accessible to the public at no cost, according to Grassley’s press release. Rep. James Sensenbrenner Jr. (R-WI) introduced identical companion legislation in the House of Representatives in late July.

A second provision of the legislation would clarify that “data on Medicare payments to physicians and suppliers do not fall under a FOIA exemption.”

In fact, Grassley specifically cited the 1979 ruling, and noted that although the injunction was recently vacated, that court decision “does not go far enough.” Thus, the newly proposed legislation would make “clear the intent of Congress and give additional tools for the public to finally gain access to important Medicare data.”

In particular, the proposed legislation makes clear that the term “personnel and medical files and similar files … does not include the information required to be made available to the public” under this act.

Grassley noted that the data would be available similar to other federal spending disclosed on www.USAspending.gov. Senator Grassley noted that the website was created by legislation sponsored by then-Senator Obama and Senator Coburn (R-OK).  It lists almost all federal spending, but it doesn’t include payments made to Medicare providers, which Grassley said makes “virtually every other government program, including some defense spending, more transparent than the Medicare program.”

Grassley maintained that taxpayers have “a right to see how their hard-earned dollars are being spent” and “there should not be a special exemption for hard-earned dollars that happen to be spent through Medicare.” Further, “if doctors know that each claim they make will be publicly available, it might deter some wasteful practices and overbilling,” he noted. For example, Grassley cited how in 2011 the Wall Street Journal, “using only a small portion of Medicare claims data, was able to identify suspicious billing patterns and potential abuses of the Medicare program.” In fact, WSJ found “cases where Medicare paid millions to a physician sometimes for several years, before those questionable payments stopped.”

The Iowa Senator and healthcare transparency advocate commended WSJ for its work and recognized that for programs like Medicare, “the federal government needs all the help it can get to identify and combat fraud, waste and abuse, and that is why a searchable Medicare claims database should be made available to the public.”

The database would include

1) the amount paid to each provider of services or supplier;

2) the items or services for which such payment was made; and

3) the location of the provider or supplier.

The database would be organized “based on specialty” or “type” of provider or supplier and it would be searchable based on the type of item or service furnished.

The legislation also requires the database to include a “disclaimer that the aggregate data in the database does not reflect on the quality of the items or services furnished or of the provider of services or supplier who furnished the items or services.” Providers and suppliers would be identified by their National Provider Identifier (NPI) number.

Both Senators wrote an opinion piece in POLITICO, calling the potential payment database a “commanding tool for trying to contain health care costs.” They asserted that the database would “position Americans to secure more value for the $2.7 trillion being spent this year on health services. That’s because the publication of the Medicare data will become health care’s new financial baseline; the measure of what America’s largest and most powerful buyer of health care gets for nearly $600 billion a year.”

The Senators, noting the recent court’s opinion vacating the injunction, noted that free access to Medicare payments is only available to “a small number of bureaucrats and academics” and if “the public, press or watchdogs want this information, they must try to wade through the federal bureaucracy — a process that will never result in the free flow of information required for transparency.”

They further maintained that the proposed database would enable the public to “easily find out what Medicare pays for a procedure, and to compare prices between doctors’ offices, hospitals and other health care providers.” For example, patients could see how often a physician performed certain lab tests, X-rays, MRIs or other treatments, and at what cost. Similarly, patients could also see the wide price variations between nearby hospitals, clinics and doctors’ offices, the Senators write.

“With access to this type of data, consumer groups and other advocates could begin assessing quality of care while researchers could examine regional health disparities and identify ways to address them.”