Will Medicare pay disclosure ruling be last straw for doctors?

A federal court decision that creates the potential to expose physicians' Medicare payment data to the public could persuade doctors not to participate in the program, said Jeff M. Scott, general counsel for the Florida Medical Assn.

The U.S. District Court for the Middle District of Florida on May 31 lifted a 34-year injunction that had blocked the Dept. of Health and Human Services from disclosing Medicare payment information that identifies individual physicians. With the rising amount of regulations in medicine, the ruling is one more obstacle physicians face in providing care to Medicare patients, Scott said. The state medical association is a plaintiff in the case.

The ruling is another reason doctors may not participate in Medicare, he said. “With the [sustainable growth rate] mess, payment issues, you've got that hassle. You've got thousands of pages of regulations, Stark Law [violation risks], and now everything's going to be thrown open for the public to peruse and make invalid assumptions on information they don't know how to use.”

The FMA had filed a lawsuit in 1978 attempting to block the federal government from releasing identifiable payment information, and the American Medical Association soon joined the case as a plaintiff. Although the White House at the time of the initial injunction supported the release of claims data, HHS since has adopted a policy of opposing it on physician privacy grounds.

In 2011, The Wall Street Journal challenged the injunction and sought a decision on whether personally identifiable Medicare billing data should be disclosed. The paper had published a series of articles on suspected Medicare fraud being committed by physicians, but it had been prevented from publicizing the names of the doctors allegedly defrauding the program.

In her decision, U.S. District Judge Marcia Morales Howard said judicial rulings since the 1979 injunction have narrowed the reach of the federal Privacy Act, making the injunction outdated and overly broad.

“It is evident that the Privacy Act no longer authorizes any of the injunctive relief granted in the 1979 FMA injunction, much less the permanent ongoing prospective relief at issue here,” Howard wrote. “Thus, the obligation to forever withhold all such information 'has become impermissible under federal law.' Accordingly, in this case … the court finds that the 1979 FMA injunction rests upon a legal principle that can no longer be sustained, and thus the injunction cannot be permitted to stand.”

Doctors' Medicare payment data will not become available immediately as a result of the ruling. Media outlets and other interested parties will need to make Freedom of Information Act requests to access the data, and HHS still will have the option to deny the requests. The ruling does not invalidate the HHS policy aimed at protecting physician privacy rights. That policy states that “the public interest in the individually identified payment amounts is not sufficient to compel disclosure in view of the privacy interests of the physicians found compelling by the courts.”

However, parties now can fight any HHS denials through administrative processes, and judges could make the ultimate decisions in such individual fights. Some lawmakers also have introduced legislation that would compel the administration to allow access to identifiable doctor pay data.

At this article's deadline, the FMA and the AMA were considering their options in the case, which include a possible appeal.

Newspaper launched latest challenge

In an email, Wall Street Journal attorney Laura R. Handman said her client was pleased that the court has removed a long-standing barrier preventing the press and the public from obtaining access to information that “offers key insights into a federal program that now accounts for more than an estimated half-trillion dollars.

“The Journal's series 'Secrets of the System,' the 2011 Pulitzer finalist, revealed questionable billing activity and other troublesome practices based on analysis of just 5% of the data and restricted in what the Journal could disclose because of the injunction,” Handman said. “We are hopeful that HHS, considering the changes in the law and in the Medicare program in the past three decades, will conclude that the public interest in this critical data is now overwhelming.”

In a statement, AMA President-elect Ardis Dee Hoven, MD, expressed the association's determination to keep fighting for the privacy rights of physicians.

“Medicine has stood its ground during the last 34 years to defend an injunction that favored individual rights and protected innocent physicians from becoming targets of suspicion,” Dr. Hoven said. “The American Medical Association is considering its options on how best to continue to defend the personal privacy interests of all physicians.”

Culture of disclosure growing

The court's decision is consistent with society's growing trend toward more disclosure of federal data, said Andrew B. Wachler, a Michigan health law attorney and a managing partner with Wachler & Associates. For example, as noted by the court, the Affordable Care Act focuses on the importance of disclosure for quality of care and fraud purposes.

“We're in an environment where we will tend to see more disclosures,” he said. “When you look at the balancing of interests in today's world, there's so much more information that's being provided. Whether it's good or bad in the long run remains to be seen, but I think it's a little bit more of the world we live in.”

The district court ruling no doubt will lead to more disclosures of government information, Wachler said, adding that he understands doctors' concerns that such raw information could be misinterpreted by the public.

“People will misunderstand the context and say, 'Look how much money this doctor is making on Medicare,' but they're not going to understand the costs associated or the amount of work going into it,” he said. “My concern is that people are just going to seek information that is private, and this information will tend to be circulated [in a way] that's not particularly helpful.”