For decades, the CMS has kept secret its records on Medicare
to individual physicians
. But Justice Department statements in a recent lawsuit and the first-ever releases of other provider charge data this year suggest the federal government's position on keeping doctor-specific information secret may be changing.
Proponents of releasing the data say it could help identify patterns of waste and fraud and help patients and insurance companies find doctors who deliver the most efficient and highest quality care. But medical groups have successfully fought to keep the payment information secret, saying it would violate physicians' privacy rights to disclose their Medicare claims data.
The AMA declined multiple requests for an interview, while the Florida Medical Association said it remains concerned that the data would be misused by the public. The two organizations were co-plaintiffs in lawsuit more than three decades ago that resulted in a permanent injunction preventing the release of physician-specific Medicare data.
That all changed May 31, when a U.S. District Court judge in Jacksonville, Fla., dissolved the 1979 prohibition (PDF)
. That decision is changing the calculus for the Obama administration, which recently released hospital-specific Medicare charges and other data that previously were kept secret.
“This is an important milestone among many that are taking place in this march toward open healthcare data,” said Andy Krackov, a senior program officer with the California HealthCare Foundation and a member of the executive committee of the Health Data Consortium, an advocacy group for open health data. “There is no question that the federal government has been a major leader in the push for open health data.”
Whether CMS ultimately will do a massive data dump that documents every dollar that doctors earn from Medicare, along with diagnosis codes and patient outcomes, remains to be seen. CMS is well aware of the vigorous private-sector efforts to pry the data out of government computers. But CMS officials won't say what their plans are.
After years of fighting for access to the files, experts say release of physician-specific data seems tantalizingly close at hand.
“The world has changed so dramatically in the past 30 years that what everyone may have thought in 1979 doesn't apply anymore,” said Robert Krughoff, president of the not-for-profit advocacy group Consumers' Checkbook, which lost a battle in the U.S. Circuit Court of Appeals for the District of Columbia (PDF)
in 2007 to obtain the data.
Krughoff's group wants the data to identify doctors who do enough volume in complex procedures like coronary bypass surgeries to keep their skills sharp. It also could illustrate quality trends, such as when doctors prescribe recommended hemoglobin tests for diabetics, he said.
Dr. Arnold Milstein, director of the Stanford Clinical Excellence Research Center in California, said private insurers are eager to use the Medicare data to look for variations in quality and cost among physicians. The Patient Protection and Affordable Care Act already has authorized some organizations, called “qualified entities,” to merge the data with information from private insurers. But the raw data must remain secret in those arrangements.
He said the discussion about releasing physician-identifiable data is one element of a broader movement, spurred by the ACA, to compare physicians on quality, cost, and wasteful care.
The Wall Street Journal published a series of articles in 2010 and 2011 detailing specific cases of potential fraud and waste by Medicare providers using a data set that contained only 5% of Medicare physicians' claims. Even that limited set of data came with a stipulation, as part of a legal settlement, that the newspaper could not reveal specific doctors' names.
The Journal reported that one Texas surgeon, who previously had been excluded from Medicare in the 1990s, had a mortality rate for a specific elective procedure in 2008 and 2009 that was more than seven times the national average. In New York, a family practice doctor pocketed $2 million in Medicare reimbursements through an unusual pattern of services that “strongly suggests abuse or even outright fraud,” the newspaper reported.
On behalf of the Journal, Dow Jones & Co., along with the Alabama-based healthcare market research firm RealTime Medical Data, sued in U.S. District Court in Jacksonville, Fla., in 2011 to overturn the 1979 permanent injunction and obtain the entire database of physician-specific Medicare payment data.
Last year the Justice Department reversed its previous legal position and sided with RealTime and Dow Jones in the case —arguing that the 1979 injunction no longer applied and should be overturned.
On May 31 of this year, U.S. District Judge Marcia Morales Howard agreed, ruling that physicians' privacy concerns no longer outweighed the public interest in seeing the Medicare data. In fact, she wrote, that balance has probably weighed in favor of vacating the injunction since a change in federal privacy law in 1982. The deadline to appeal that decision is on July 30. The AMA and the FMA have not announced their next step.
Jeff Scott, the FMA's general counsel, said his organization still stands behind its original objection that the data are likely to be inaccurately reported or misunderstood by the public. The group also says such a release would violate physicians' privacy.
(The data would not identify patients, in the same way that Medicare cost reports on specific hospitals do not.)
As of today, the Obama administration is still on record in the Florida case opposing the public release of the data under an exception in the Freedom of Information Act that allows for secrecy to preserve privacy.
In other words, the government argued that the 1979 injunction should be struck down, but that position would not lead to the immediate release of the information. Rather, with the injunction resolved, the CMS can now start the larger legal debate about whether public interest in releasing the data would outweigh physicians' privacy interests in keeping it secret.
In the 2007 Consumers' Checkbook case, the CMS argued doctors' right to privacy should win. But last year the HHS said explicitly that it may abandon that legal position.
“To be sure, HHS may later have reason to change its position in response to changes in the factual or legal landscape,” HHS attorneys wrote in the 2012 filing (PDF)
in the Florida lawsuit. “There is little doubt that the world is different in 2012 than it was in 1979, and any agency decision in 2012 should be reviewed without the constraint of an injunction put in place.”Follow Joe Carlson on Twitter: @MHJCarlson