HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Tuesday, February 17, 2009

Medicare Privacy Ruling

AmNews reports on the D.C. Circuit's ruling that HHS is not required to turn over Medicare claims data to a consumer group wishing to use the data to provide patients with selected physician information.  The case is:  Consumers' Checkbook/Center for the Study of Services v. U.S. Dept. of Health and Human Services.  Chris Silva provides a brief overview of the case and writes,

A federal appeals court said physician privacy dictates that a consumer group is not entitled to receive and publicize Medicare physician claims data. The court added that the information would not be of use to patients anyway.

Consumers' Checkbook/Center for the Study of Services [a nonprofit that rates firms and services for subscribers] sued, in 2006, the Dept. of Health and Human Services under the Freedom of Information Act to obtain selected physician claims data. The organization hoped to provide patients information on the number of major procedures performed in 2004 by each Medicare physician in four states -- Illinois, Maryland, Virginia and Washington -- and the District of Columbia.

The appeals court's Jan. 30 decision reverses a district court ruling of August 2007. It prevents both the data release and the publication of a free public resource that Checkbook/CSS had planned to produce using the information. The American Medical Association was successfully added to the case as an additional appellant after it urged HHS to challenge the lower court's ruling. While the appeal was pending, the release of the claims data was put on hold. . . .

"We are in favor of patients having information that's evidence-based and statistically balanced, but the problem with the request by Consumers' Checkbook is that it's raw billing data, which could be misleading to society," said Jeremy A. Lazarus, MD, a psychiatrist from Denver and speaker of the AMA House of Delegates. "Unless it's tied to quality measures and an adequate patient size, then it could be damaging."

Checkbook/CSS anticipated that a patient could use the information when seeking a physician for a specific procedure. A patient could find out how many of these procedures a given doctor performed over the course of a year and choose a more experienced physician . . . .

The information requested by Checkbook/CSS "does not serve as a ratings system," said K. Edward Shanbacker, the Medical Society of the District of Columbia's executive vice president.

"It would have been misleading to patients if they had tried to extrapolate data from the Medicare program on a per-procedure basis. It doesn't speak anything about the physician's competence or quality," he said.

The U.S. Court of Appeals for the D.C. Circuit agreed in a 2-1 decision. The court weighed the "nonexistent public interest against every physician's substantial privacy interest" and concluded that exposure of the data "would constitute a clearly unwarranted invasion of personal privacy." . . .

An HHS spokesperson said the department has no comment on the court's Jan. 30 ruling because the pending suit has not yet been dismissed. But the department has stated a commitment to making Medicare claims data available as allowable by the law. In challenging the suit, it cited a 1979 ruling by the U.S. District Court for the Middle District of Florida that prohibited it from disclosing Medicare pay data that would have identified individual doctors.

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