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Doctors Wary as CMS Policy on Releasing Medicare Pay Data Becomes Effective Soon

Wednesday, February 19, 2014

By Mindy Yochelson

Feb. 11 --With an effective date about a month away, some doctor groups are cautious about how a new Centers for Medicare & Medicaid Services policy on the release of Medicare payment data will impact members.

“We'll have to wait to see how CMS uses this new authority,” Reid Blackwelder, president of the American Academy of Family Physicians, told Bloomberg BNA. “Our hope is that researchers use this data to understand and improve how health care dollars are spent.”

In a Jan. 17 notice, the CMS said it would begin to institute a new policy for releasing data on how much Medicare is reimbursing individual doctors (79 Fed. Reg. 3,205) . The agency said it will make individual determinations under the Freedom of Information Act (FOIA), weighing the privacy interest of the individual against the public interest.

Takes Effect in March

Under its “Modified Policy on Freedom of Information Act Disclosure of Amounts Paid to Individual Physicians Under the Medicare Program,” which takes effect March 18, the CMS said it would use a FOIA exemption when it receives such a request (25 MCR 69, 1/17/14).

The previous policy, which had been based on court orders, was that the public interest was insufficient under FOIA to allow the disclosure of amounts that Medicare pays to individual physicians.

The CMS was legally barred from disclosing identifiable annual Medicare reimbursement payments of individual physicians or disclosure of payments in a manner that could identify individual physicians.

The new policy, delivered in a short notice sparse of operational detail, said the agency will start making case-by-case determinations as to whether FOIA's “exemption 6” applies to a given request for information. Exemption 6 requires CMS to weigh the balance between the privacy interest of individual physicians and the public interest in disclosure of such information.

“As the outcome of the balancing test will depend on the circumstances, the outcomes of these analyses may vary depending on the facts of each case,” the CMS said.

Notice 'Ambiguous.'

Anders M. Gilberg, senior vice president of government affairs at the Medical Group Management Association, called the notice “ambiguous” and said the CMS failed to make clear the standards it will use to evaluate data requests.

“MGMA has always supported the release of meaningful cost and quality data to benefit Medicare beneficiaries, but using an exemption in FOIA to release raw claims data without clear safeguards raises privacy concerns and may lead to its misuse,” he told Bloomberg BNA.

American Medical Association President Ardis Dee Hoven, in a statement, urged that physician payment information be released only for efforts aimed at improving the quality of health care services and with appropriate safeguards.

Both doctors and patients could be “unfairly impacted,” she said, by “the unfettered release of raw data” which could “result in inaccurate and misleading information.” She added that “the disclosure of payment data from government health care programs must be balanced against the confidentiality and personal privacy interests of physicians and patients.”

Injunction Vacated

The data release saga reached a turning point in May 2013 when a federal court vacated a 33-year-old injunction that had foreclosed the government from releasing any Medicare physician reimbursement data that would identify specific physicians (24 MCR 669, 6/7/13).

The CMS subsequently asked for public comment about developing a new policy, stating that it has been receiving “multiple requests from various stakeholders for physician payment and reimbursement data.”

The agency had said it recognizes the role data can play in “achieving the common goal of better quality health care at lower costs.”

In one of the comments, about 80 state and national medical groups offered the operational details and protections they wanted to see in a new policy.

“Given the potential for security breaches, hackers, or efforts to re-identify information, we urge CMS to consider the potential impact of any data release on patient privacy and engage with experienced data statisticians, physician organizations, and other relevant stakeholders on ways to further protect such data,” according to one of the points in the five-page letter.

The signatories said they supported efforts that increase knowledge about the quality of care and the efficient use of resources, but also warned against allowing “untrained entities that lack knowledge about the Medicare program to attempt to detect fraud and abuse.”

In addition, “raw Medicare claims data is a crude metric for assessing the quality of medical care,” they said. “When used in isolation this data ignores the more important clinical factors that affect patients, including case mix, co-morbidities, and other patient characteristics.”

Providing Meaningful Information

Although cautious, Blackwelder was optimistic about the new policy.

“If used correctly, the data can provide accurate and meaningful information to patients, physicians, and other stakeholders that can improve quality at the point of care,” he said. For example, it could be used to track billing for certain preventive services such as flu vaccinations.

The AAFP president said that CMS's new policy is not a “wholesale, cookie-cutter approach to releasing data and will weigh the privacy interests of individual physicians with the public interest in disclosure of payment information.”

Instead, he continued, it “ensures that CMS will evaluate each request rather than establish a universal protocol that risks inappropriate release of data.”

To contact the reporter on this story: Mindy Yochelson in Washington at myochelson@bna.com

To contact the editor responsible for this story: Ward Pimley at wpimley@bna.com


The CMS January notice is at http://www.gpo.gov/fdsys/pkg/FR-2014-01-17/pdf/2014-00808.pdf.

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