FOIA's privacy 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. In no case would such disclosures reveal the identities of individual patients, the agency said. “As the outcome of the balancing test will depend on the circumstances, the outcomes of these analyses may vary depending on the facts of each case,” HHS said in the rule. “However, in all cases, we are committed to protecting the privacy of Medicare beneficiaries.”
Under the new policy, which becomes effective 60 days after it appeared in the Federal Register, the CMS will also begin publishing “aggregate” data sets about Medicare physician services.
Dr. Ardis Dee Hoven, president of the AMA, which has long opposed release of data on payments to individual physicians, said “the disclosure of payment data from government healthcare programs must be balanced against the confidentiality and personal privacy interests of physicians and patients who may be unfairly impacted by disclosures.”
For the past 30 years, private companies, watchdog groups and media organizations have sought data on Medicare reimbursements to individual doctors, arguing that disclosing that information could inform consumers about doctors' experience in performing particular procedures as well as spotlight possible fraud and abuse. But medical groups have argued that such data would reveal proprietary details about their practices that the general public has no business knowing, and that inaccurate presentations of the data would harm doctors.
“The AMA strongly urges HHS to ensure that physician payment information is released only for efforts aimed at improving the quality of healthcare services and with appropriate safeguards,” Hoven said.
Other critics said HHS' new policy doesn't go far enough in the direction of transparency.
The new rule requires people and groups seeking payment data to submit specific requests under the Freedom of Information Act. The government is not planning to put the entire Medicare physician-payment database online in a searchable format. The rule says each request for data will be judged on its own merits and will take doctors' personal privacy concerns into account.
“Given the advantages of releasing information on Medicare payment to physicians and the agency's commitment to data transparency, we believe replacing the prior policy with a new policy in which CMS will make case-by-case determinations is the best next step for the agency,” CMS Principal Deputy Administrator Jonathan Blum wrote in a blog post Tuesday.
That prompted criticism from some observers. “Ideally and ultimately, HHS should disseminate the information via a publicly accessible database rather than on a case-by-case basis,” said Joel White, president of the Washington-based interest group Council for Affordable Health Coverage, whose members include insurers, physician groups and the U.S. Chamber of Commerce. “These data have a value too great in reducing costs, curtailing fraud and improving quality to be handled on an ad hoc basis.”
The council supports a standardized approach that would disclose data based on the type of entity requesting it, which would speed up access to the data while reducing the administrative burden on the CMS.
Tuesday's announcement flows from a May 2013 ruling by U.S. District Judge Marcia Morales Howard in Jacksonville, Fla. She dissolved a 1979 federal injunction that had barred the release of Medicare payment data identifying specific physicians on the grounds that physicians' privacy concerns no longer outweighed the public interest in releasing the data.
Following that ruling, the CMS decided that the data could be released assuming that the data do not qualify for a privacy exemption to public disclosure contained in the Freedom of Information Act. Under the new rule, the agency will use “balancing test” to determine which information should be released, on a case-by-case basis.
“As the outcome of the balancing test will depend on the circumstances, the outcomes of these analyses may vary depending on the facts of each case,” HHS said in the rule (PDF). “However, in all cases, we are committed to protecting the privacy of Medicare beneficiaries.”
The new rule is part of an overall move in the direction of greater data-transparency at Medicare, officials said. That includes the first-ever release last year of Medicare charge data for inpatient and outpatient procedures and the release of previously unpublished information on hospital spending and quality of care. Much of the data is on healthdata.gov.
Before announcing the final rule, HHS reviewed more than 130 comments from 300 organizations.
Follow Joe Carlson on Twitter: @MHJCarlson