CHICAGO / American Medical News / Government / April 4, 2011
Doctor privacy advocates defend a 30-year ban on releasing data from challenges on Capitol Hill and in the courts.
By Charles Fiegl, amednews staff
WASHINGTON - A Senate bill aimed at curtailing Medicare fraud would publish physician billing data online, letting viewers determine how much individual doctors earn annually from the program.
The release of the data has been prohibited by a court ruling for more than 30 years. But some lawmakers recently stepped up their efforts to lift the ban and bring Medicare billing data to light to prevent fraud.
Sen. Charles Grassley (R, Iowa) introduced a program integrity measure before a Senate Finance Committee hearing on Medicare and Medicaid fraud on March 2. The bill in part would require the Dept. of Health and Human Services by the end of 2012 to start publishing Medicare claims and payment data on the website USAspending.gov.
In making the information public, the government could help prevent billions of dollars each year from going to those defrauding the program, Grassley said. Sen. Ron Wyden (D, Ore.) said he was drafting his own legislation that would make Medicare claims data publicly available.
"More transparency about billing and payments increases public understanding of where tax dollars go," Grassley said. "The bad actors might be dissuaded if they knew their actions were subject to the light of day."
But the American Medical Association, along with HHS, has opposed challenges to the decades-old ban on publicizing the information. Physician organizations have said allowing public access effectively could permit anyone to determine how much an individual doctor makes in a year, especially if that doctor has a patient population that is mostly Medicare. Publicizing raw claims data without any necessary context would be of dubious anti-fraud value, they said.
However, Grassley said the government is not the only entity trying to smoke out Medicare fraud. During the Finance hearing, he cited a recent series of Wall Street Journal articles that examined Medicare claims from 1999, 2001 and 2003-08. Under a special arrangement, the journal, working with the Center for Public Integrity in Washington, D.C., paid the Centers for Medicare & Medicaid Services $12,000 for a 5% sample of the Medicare carrier payment file for those years. The newspaper reported that it was able to identify tens of thousands of physicians and other health professionals who could be considered outliers based on the relatively large amounts they billed Medicare in those years.
However, the journal could not name the physicians based on its data usage agreement with CMS. That policy stems from the federal court decision that protects the privacy of the physician data.
"I think it's time to revisit this decision and make some transparency of payment physicians receive from Medicare," said Grassley, a long-time farmer. "Pretty much like you will see Chuck Grassley's name in the newspaper sometimes that I've gotten a farm subsidy through the U.S. Dept. of Agriculture."
Reviving an old court fight
In 1978, the Florida Medical Assn. and six physicians filed a class-action lawsuit to prevent the predecessor department to HHS from disclosing a list of all medical professionals who received Medicare payments the previous year. The AMA joined the lawsuit as a plaintiff in June 1978.
In October 1979, the judge in the case ruled that individual billing data were exempt from public disclosure laws and barred the department "from disclosing any list of annual Medicare reimbursement amounts, for any years, which would personally and individually identify those providers of services under the Medicare program." The ruling protects AMA members and doctors in Florida, but HHS has applied the prohibition to all physician billing data.
Several recent challenges to the 1979 ruling have failed. In 2009, an appeals court decided that the government was not required to release claims information to the marketing firm Real Time Medical Data based in Birmingham, Ala. The same year, another appeals court denied a similar request from Consumers' Checkbook/Center for the Study of Services, a nonprofit consumer organization based in Washington, D.C. In that case, the court said release of the data was an "unwarranted invasion of personal privacy."
In the latest legal challenge, The Wall Street Journal's parent company, Dow Jones & Co., filed motions on Jan. 25 to reopen the 1979 case and intervene as a defendant. A federal judge is scheduled to hear arguments on these motions on April 14.
The paper said the original decision prevented reporters from naming physicians they believed were defrauding the Medicare program.
The AMA, meanwhile, "intends to vigorously defend the current injunction, which protects the privacy of physician data while allowing it to be seen by the agencies working to identify fraud," Dr. Hoven said.
Illustration courtesy: piperreport.com
"Medicare fraud threatens our entire health care system, and the AMA supports targeted efforts by the Dept. of Justice, [HHS] Office of Inspector General and others to identify perpetrators of fraud -- the vast majority of whom are not physicians," she said.
There's little doubt that the vast majority of physicians are billing the Medicare program appropriately, said Jason Conti, an attorney for Dow Jones in New York. However, restrictions on access to the claims data prevent further investigation of true outliers in the program.
"If the data is released, more fraud will be exposed," he said.
As it has since 1979, HHS is opposing reopening the case. The restrictions placed on the newspaper in the data usage agreement are based on a statutory exception to the Privacy Act of 1974 and not the 1979 court decision, HHS said in court papers.
Copyright 2011 American Medical Association.