CMS’ New Policy for Providing Payment Data to Individual Doctors Released

CMS will begin releasing amounts paid by Medicare to individual physicians on a case-by-case basis beginning 60 days after a Final rule is published in the Federal Register on January 17, 2014. This will mark a change in policy from 1979 when no information was released on amounts paid to individual physicians. The permanent injunction which prohibited CMS from releasing any individual payment data was vacated on May 31, 2013, and CMS is announcing this new policy after considering comments received during 2013.

Case-by-Case Determination

CMS said in an advance copy of the Final rule to be published on January 17, 2014, that it will decide on a case-by-case basis as to whether to release Medicare payment data for individual physicians in an effort to “weigh the privacy interest of the individual physicians and the public interest in disclosure of such information.” This is in accordance with exemption 6 to the Freedom of Information Act, which allows agencies not to release information. “The outcome of the balancing test will depend on the circumstances, the outcomes of these analyses may vary depending on the facts in each case,” said CMS.

CMS received comments from 300 organizations after it asked for comments in August 2013 on changing the policy of the release of payment data for individual physicians. Many stakeholders made comments that they were concerned that the release of the data would compromise the privacy of Medicare beneficiaries. They were also concerned that this data may be used to commit fraud and abuse against physicians, as well as beneficiaries. In a blog post, CMS stated, “we intend to consider the importance of protecting physicians’ privacy and ensuring the accuracy of any data released as well as appropriate protections to limit potential misuse of the information.” (See also “CMS receives numerous comments on the potential release of Medicare physician data,” November 5, 2013)

Injunction

The district court for the middle district of Florida vacated a permanent injunction on May 31, 2013 that was issued in a 1979 decision the court made in Florida Medical Association, Inc, et al. v Department of Health, Education and Welfare, et al. In that decision, the court prohibited the disclosure of identifiable annual Medicare reimbursement payments of individual physicians or disclosure of payments in a manner that could identify individual physicians. In vacating the injunction, the court found that such a broad injunction was no longer authorized by the Privacy Act and that continued enforcement was no longer equitable.

Release of Data

CMS noted that, since 1979, a number of changes have occurred in how data is released that will affect the dynamic between a physician’s right to privacy and the public’s right to know how Medicare dollars are spent. (See “CMS requests comment on the best ways to release Medicare payment data related to physicians,” August 9, 2013.) In its blog post, CMS highlighted the release of data it has made since 2010 when it launched the Health Data Initiative. Among the release of data highlighted by CMS are the May 2013 release of the average charge of the 100 most common inpatient procedures, and the June 2013 release of the average charge for 30 selected outpatient procedures.

CMS echoed the advantages of releasing data on physician payments made by the commenters, including that it would (1) allow providers to collaborate on improved care management and the delivery of health care at lower costs, and (2) give consumers a more reliable measure of provider quality and performance.