February 2014—Historically, Medicare has not released information regarding payments it makes to physicians or physician groups. By way of background, the policy governing releasing information regarding the amounts paid to individual physicians under the Medicare program was previously set forth in the November 28, 1980 Federal Register (45 FR 79172), following a court ruling in 1979 interpreting the Freedom of Information Act “FOIA”) law. In that guidance, the predecessor to the Department of Health and Human Services (HHS) stated that, in considering the competing interests of public transparency and privacy, the public interest in HHS’ disclosure of the amounts paid to individual physicians under the Medicare program was not sufficient to compel disclosure under FOIA.
On January 14, 2014, CMS announced a new policy reversing the 30 year old rule that protected physician privacy. CMS will now make case-by-case determinations as to whether a FOIA exemption applies to a given request for information regarding amounts paid to individual physicians. The new policy will take effect on March 18, 2014.
This announcement stems from a May 2013 ruling by U.S. District Judge Marcia Morales Howard in Jacksonville, FL. In her ruling, she lifted a 1979 court injunction which barred the release of Medicare payment data (Judge Howard held that physicians’ privacy concerns no longer outweighed the public interest in releasing the data). Following this ruling, CMS sought public comment on its proposed policies with respect to the disclosure of individual physician payment information. Physician groups expressed dismay regarding CMS releasing such information, saying it could lead to misleading conclusions and unintended consequences.
CMS noted that it recognized these valid concerns raised by stakeholders, and that they will consider the importance of protecting physician’s privacy and ensuring the accuracy of any data that is released, and would also consider appropriate protections to limit potential misuse of the information. However, CMS stated that replacing the prior policy is the best next step for the agency.
Under the new policy, CMS will make case-by-case determinations as to whether a FOIA exemption applies to a given request for information regarding individual physician payment information. FOIA’s exemption 6 requires CMS to weigh the balance between the privacy interest of individual physicians and the public interest in the disclosure of such information. The outcome will depend on the facts and circumstances of each individual case.
This policy change is in accordance with CMS’ ongoing effort to make information more available to the public. In 2010, HHS launched the Health Data Initiative to promote transparent, innovative, and safe data use. Since then, the agency has released an unprecedented amount of aggregated data with much of it available at www.healthdata.gov.
The government has been increasingly implementing policies to promote transparency in the industry concerning Medicare payment information and physician financial relationships. This is evidenced not only by this recent policy change, but also with the enactment of Section 6002 of the Affordable Care Act (the Sunshine Act) which requires applicable manufacturers and group purchasing organizations to report to CMS physician ownership interests and transfers of value to physicians. Reported information is published by CMS and is available on a searchable public website.
In light of these policies, physicians need to be aware of the potential consequences associated with the potential disclosure of financial information. Specifically, CMS’s new policy regarding disclosing physician payment data opens the risk for government investigation, the use of information by competitors, and the perception of impropriety.
Adrienne Dresevic, Esq. graduated Magna Cum Laude from Wayne State University Law School. Practicing healthcare law, she concentrates in Stark and fraud/abuse, representing various diagnostic imaging providers, eg, IDTFs, mobile leasing entities, and radiology and multi-specialty group practices.
Clinton Mikel, Esq. graduated from the University of Michigan Law School. Practicing healthcare law, he concentrates in Stark, fraud/abuse, telehealth/telemedicine, compliance, and the corporate and financial aspects of healthcare practice.
The authors are members of The Health Law Partners, P.C. and may be reached at (248) 996-8510 or (212) 734-0128, or at www.thehlp.com.