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From Health Law Daily, August 9, 2013

CMS requests comments on best ways to release Medicare payment data related to physicians

By Paul Clark

In the wake of a May decision by a Florida district court lifting a 33-year-old “permanent” injunction that had forbidden HHS from disclosing Medicare reimbursement amounts for individual physicians, CMS on August 6, 2013 announced it was seeking public input on “the most appropriate policy” regarding release of physician payment data.

Court case. The decision in Florida Medical Association, Inc. v Department of Health, Education, & Welfare was the result of actions taken by two parties: Jennifer Alley, owner of Real Time Medical Data (RTMD), which uses Medicare data to assist hospitals in strategic planning and marketing; and Dow Jones and Company, owner of the Wall Street Journal, which sought access to specific Medicare data for a series of articles on Medicare it was preparing. (See also “Court lifts 33-year-old ban on disclosure of Medicare payments to physicians,” June 3, 2013.) Since October 1979, a permanent injunction has barred CMS from releasing the names of physicians and providers who received Medicare reimbursement. At the time, the district court determined that, through examining competing public and private interests, the proposed disclosure “at least in the individually identifying manner,” violated the Freedom of Information Act.

Changes since 1979. CMS noted that a number of changes since the 1979 injunction have changed the dynamic between a physician’s right to privacy and the public’s right to know more about how Medicare dollars are spent. For example, CMS noted that Medicare spending, both in total dollars and as a percentage of all federal spending, has increased dramatically in the last few decades. Also, there are greater consequences for Medicare fraud and abuse, which could be mitigated by the disclosure of more payment information.

Public input. CMS is seeking public input on three issues:

  1. whether physicians have a privacy interest in information concerning payments they receive from Medicare and, if so, how to properly weigh the balance between that privacy interest and the public interest in disclosure of Medicare payment information, including physician-identifiable reimbursement data;
  2. what specific policies CMS should consider with respect to disclosure of individual physician payment data that will further the goals of improving the quality and value of care, enhancing access and availability of CMS data, increasing transparency in government, and reducing fraud, waste, and abuse within CMS programs; and
  3. the form in which CMS should release information about individual physician payment.

Comments will be accepted by CMS for 30 days after August 6, 2013.

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