HHS appeals court order to give claims data to consumer groups

Washington -- The Dept. of Health and Human Services is appealing a court order that it release Medicare physician claims data to a consumer group.

The HHS appeal in late October blocks for now a plan by Consumers' Checkbook/Center for the Study of Services to use the claims data to provide patients with more detailed information about the quality of physician care. The nonprofit organization had planned, as a first step, to create a free online public resource listing how many times in one year individual physicians had performed certain Medicare procedures in the District of Columbia and the four states covered by the order: Illinois, Maryland, Virginia and Washington.

A patient who needed a knee replacement, for instance, might use the guide to pick a doctor who has performed a significant number of these surgeries under the assumption that the physician would be more likely to provide high-quality care than one who rarely provided the service.

Consumers' Checkbook/CSS had sued HHS for the physician claims data and successfully argued before the U.S. District Court for the District of Columbia that the potential consumer benefits of the information outweighed the "minimal" privacy intrusion to doctors that would result. The department appealed the Aug. 22 decision to the U.S. Court of Appeals for the District of Columbia, and the original order has been stayed pending the appeal's outcome.

The district court's assessment fails to acknowledge that the action would amount to an indiscriminate release of raw Medicare claims data, wrote AMA Executive Vice President and CEO Michael D. Maves, MD, MBA, in a Sept. 14 letter urging HHS to appeal the order.

"This ruling has serious privacy implications for patients and their treating physicians by allowing for the release of information identifying individual physicians each time they perform a particular service or procedure," he stated. "It would permit the unregulated, unqualified distribution of sensitive health data to any person or entity without regard to public interest, scientific integrity or a demonstrated ability to protect patient health information."

Although Consumers' Checkbook/CSS did not request any data that contained patients' personal information, Dr. Maves said patient identities still could be deduced based on the details of the Medicare services provided. Such a risk could be especially present in cases in which physicians treat few Medicare beneficiaries or have patients with rare medical conditions, he said.

In addition, even if the group were able to publicize the data without including any identifiable patient information, the results would paint an inaccurate picture of individual physicians' quality of care and would be of little use to patients, Dr. Maves said. The Association warned that Medicare enrollees using the information as a consumer tool would be making treatment decisions based on misleading information.

Consumers' Checkbook/CSS has not announced any concrete plans for the data beyond reporting the number of times physicians perform procedures. But eventually, the group said, it wants to be able to inform patients whether individual physicians are complying with recognized care guidelines; have good patient outcomes; and are high-quality, efficient practitioners as judged by evolving performance measures.

But, Dr. Maves stated, "Physician care is as complex as the patients treated." Patients' clinical characteristics and compliance with treatment plans affect performance measures independently of actual physician performance. "The quality and nature of data available on Medicare claims are inadequate to adjust for these factors," he said.

Despite its appeal in the case, HHS reiterated its commitment to quality improvement through greater health care quality and cost transparency. But the department noted that a 1979 ruling by the U.S. District Court for the Middle District of Florida in a similar case prohibits it from disclosing Medicare reimbursement figures that would identify individual doctors. In that case, the Florida Medical Assn. sued HHS' predecessor agency to prevent the release of this type of claims information.

"We're fully committed to making available as much Medicare data as allowable by law," said HHS spokesman Kevin Schweers. "Unfortunately, in the case at hand, two federal courts interpret the law differently, and we are working with the Justice Dept. to settle these conflicting opinions in a way that will ultimately increase transparency in the health care system."

Appeal a "disappointment"

The HHS appeal was a disappointment, said Robert Krughoff, the Consumers' Checkbook/CSS president. He suggested that the AMA's strong support for such a move played a part in the decision to appeal.

"We regret that the AMA has pushed HHS so hard to hide this information," he said. "In fact, we think many consumer-oriented, quality-conscious physicians would disagree with the AMA's stance and are not the least bit afraid of having consumers be better informed."

The Association is pleased that HHS is taking its advice, said AMA Board of Trustees Chair Edward L. Langston, MD, after the appeal was announced. "The risks and harm associated with the release of this information far outweigh any potential benefits."

The appeal's outcome could impact many more physicians than those practicing in Washington, D.C., and the four states. After the original decision, Krughoff announced his organization's intent to file similar requests for physician claims data in all remaining states.

The effort has some support on Capitol Hill. Senate Budget Committee Ranking Member Judd Gregg (R, N.H.) wrote a letter to HHS expressing disappointment in the decision to appeal. Tapping the vast quality and cost indicators contained within Medicare claims data is a necessary step toward allowing patients to make educated decisions about their health care, he said.