The Centers for Medicare and Medicaid Services (CMS) announced a Modified Policy on Freedom of Information Act Disclosure of Amounts Paid to Individual Physicians under the Medicare Program. The policy states that CMS will respond to Freedom of Information Act (FOIA) requests about how much money individual doctors earn treating Medicare patients. Tuesday’s notice modifies the administration’s 30 year policy of withholding individual physician payment information. CMS will now evaluate requests for such information on a case-by-case basis, and will use a balancing test to determine what information should be released. The new policy will take effect 60 days after publication in the Federal Register, which is scheduled for Friday, January 17.
Since 1980, the Department of Health and Human Services’ position has been on the side of physician privacy. They held that public interest in disclosure of the amounts paid to individual physicians under Medicare was never sufficient to outweigh doctor privacy, and FOIAs would not compel disclosure of Medicare payments.
Just this past May, however, a federal judge cleared the way for a policy shift by determining that such a broad injunction was not authorized under the Privacy Act. The district court found that doctors’ privacy concerns did not trump the public interest in disclosing the information, which could be used for detecting trends in healthcare utilization and fraud.
Exemption 6 of the FOIA permits the government to withhold all information about individuals in “personnel and medical files and similar files” when the disclosure of such information “would constitute a clearly unwarranted invasion of personal privacy.” This exemption may still shield some information from public view if the damage to physician privacy is judged greater than the public interest in the information. Furthermore, CMS states that in no case would such disclosures reveal the identities of individual patients.
The CMS Blog notes that the policy change is part of CMS’ ongoing effort to make more data available to the public. Since 2010, the agency has released an “unprecedented amount of aggregated data in machine-readable form, with much of it available at www.healthdata.gov. These data range from previously unpublished statistics on Medicare spending, utilization, and quality at the state, hospital referral region, and county level, to detailed information on the quality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.” Last May, the CMS published the average charges for the 100 most common inpatient services at hospitals around the country.
Policy and Medicine reported in August that CMS was requesting public comment on the potential release of Medicare physician data. The agency reviewed more than 130 comments from 300 organizations on the new physician-payment policy before announcing the final rule. Family Practice News reports that physician groups, including the American Medical Association (AMA), urged CMS to use caution in releasing physician data. “Medicare data is highly susceptible to misleading conclusions,” the letter signed by AMA stated. “CMS should undertake a detailed educational program to explain any Medicare data release program and openly address its limitations, including that the data may take into account only a small fraction of a physician’s patient population or may be outdated.”
Apparently, CMS threw caution to the wind. There is a line between transparency, where information is provided to allow for thoughtful consideration of potential conflicts of interest, and simply releasing an abundance of data that only serves to mislead. It will be interesting to see how much of this information is used by the legal community in malpractice and class action lawsuits. The FOIA responses could potentially be a huge addition to the big data movement, considering the immense size of the CMS database.
Time will tell with what frequency CMS will receive and respond to these FOIA requests. The policy is scheduled to take effect Tuesday, March 18.