CMS’ Potential Disclosure of Physician Reimbursement Data Divides Medical Community

CMS posted on its website 130 comments from 300 organizations and individuals it received in response to its solicitation for comments regarding the potential release of physician payment data. CMS is rethinking its position on this matter after a federal court in Florida issued its decision in Florida Medical Association Inc v. Department of Health, Education and Welfare which lifted an injunction from 1979 that barred the disclosure of individual physician reimbursement information.  The district court in that decision stated the Privacy Act upon which the 1979 Injunction is based, was “no longer good law,” and thus the permanent injunction “rests upon a legal principle that can no longer be sustained.”

CMS specifically requested input on the following:

  • 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.
  • 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.
  • The form in which CMS should release information about individual physician payment, should CMS choose to release it (e.g., line item claim details, aggregated data at the individual physician level).

The comments CMS received supported both sides of this issue. The American Association of Retired Persons (AARP) stated it believed the public has a right to know how public funds are used by Medicare participating physicians and it urged CMS to release physician level data. On the other hand, the American Medical Association, the American Medical Directors Association, the American Academy of Dermatology Association as well as several other organizations, sent a joint letter urging CMS to keep existing safeguards intact for the public reporting of Medicare data and encouraged it to consider ways to increase flexibility for non-public or internal uses that pose fewer privacy and reputational risks. They also recommended that CMS protect the privacy of the patient and the physician’s identifiable information and they discouraged the disclosure of public reporting of claims data without any relevant quality information or the inclusion of other payer resources.

The American College of Physician Executives (ACPE) polled its members to gauge how they felt about the possible release of their reimbursement data to the public.  Of the 588 ACPE members who responded, approximately 46 percent did not agree with releasing the data, while 42 percent indicated they were fine with the release, and 12 percent remained unsure.  Members opposed to releasing the data submitted comments such as, “What purpose does this action serve” and “This is not a form of transparency that will benefit budgeting, planning or patient care.”  Members who supported the  release of the data stated, “We live in an information age… we should be able to look up online where our money is going at all times” and “It gives an appearance of having something to hide, and thus reduces public trust in our profession…I just can’t understand that attitude.”

The potential release of Medicare physician reimbursement data is just part of CMS’ move towards greater transparency. Currently, certain physicians are required to disclose their financial relationships with drug and device manufacturers.  The transparency program titled “Open Payments” was mandated by Section 6002 of the Patient Protection and Affordable Care Act (PPACA) (P.L. 111-148).  Physicians who are covered by this program include Doctors of Medicine, Osteopathy, Dentistry, Dental Surgery, Podiatry, Optometry, and Chiropractic Medicine.