Ruling Unlocks Medicare Payments to Individual Physicians

June 03, 2013

John Q. Public can now find out what Medicare has paid individual physicians, following a decision by a federal judge last week that lifts a 33-year permanent injunction against releasing such billing data.

The court case pitted the American Medical Association (AMA), which sought to protect physician privacy, against the parent company of the Wall Street Journal (WSJ), which argued that making the billing data public could help expose fraud and abuse in Medicare.

In October 1979, a federal judge in the US district court in Jacksonville, Florida, said that a plan by the predecessor of the US Department of Health & Human Services (HHS) to disclose Medicare revenue information by physician violated the Privacy Act of 1974. In a ruling issued on May 31, however, US District Judge Marcia Howard, in Jacksonville, said that the Privacy Act no longer authorizes the injunction, given how the federal judiciary has interpreted the law since 1979.

Howard's ruling does not mean that Medicare payments to every physician suddenly will be posted online. Parties interested in publicizing the information would need to request it under the Freedom of Information Act (FOIA), according to Howard. HHS can grant or deny FOIA requests on a case-by-case basis, with administrative and legal recourse available to the requesting party in the event of a denial.

Detecting Fraud Outweighs Physician Privacy, Dow Jones Says

Dow Jones, which owns the WSJ, asked the federal court in Jacksonville in 2011 to lift the injunction. The year before, the newspaper had published a series of stories that spotlighted a number of physicians who received more than $1 million a year from Medicare by performing an unusually high number of surgeries and diagnostic tests. The WSJ based the articles on a very limited amount of Medicare data obtained through an agreement with the Centers for Medicare & Medicaid Services (CMS) that prohibited the newspaper from publishing individual billing information obtained solely from the government database. Dow Jones said in the court case that disclosing the information without this restriction would advance media efforts to uncover rampant Medicare fraud.

"The privacy interests of physicians no longer clearly outweigh the compelling public interest in monitoring a program that now consumes one out of every eight federal dollars," Dow Jones said in a court filing.

The AMA argued in the case that the Privacy Act still supports the permanent injunction against releasing Medicare billing information at the physician level. The injunction is reinforced by none other than the Affordable Care Act, the association added. The healthcare reform law allows CMS to share physician-specific billing data with qualified organizations such as consumer groups and employers that seek to measure physician performance. This careful, limited approach to releasing physician-specific data runs counter to the unlimited access sought by Dow Jones, the AMA said. "Congressional solicitude for the privacy of physician-identifying Medicare information" confirms that the 1979 injunction "remains most equitable."

The AMA also disagreed with Dow Jones that the war against fraud and abuse justified lifting the injunction.

"Congress has already set forth a comprehensive scheme for addressing that problem — a scheme that does not include unlimited public disclosure of Medicare payment amounts to physicians." Releasing the information with the physicians' names encoded would serve the same purpose, the AMA said, because parties like Dow Jones could report suspicious billing patterns to HHS using the physician's code number.

After Howard issued her ruling on May 31, AMA President-Elect Ardis Dee Hoven, MD, said in a statement that her group "is considering its options on how best to continue to defend the personal privacy interests of all physicians." One obvious option is appealing the decision to a federal appeals court in Atlanta, Georgia.

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