In a decision that could have broad implications for physicians and patients alike, the United States District Court for the District of Columbia has recently ordered the Centers for Medicaid and Medicare Services (“CMS”) to disclose claim information regarding hundreds of thousands of patient encounters.
In March 2006, Consumers’ Checkbook, a consumer group based in Washington D.C., filed a Freedom of Information Act (“FOIA”) request with CMS seeking the disclosure of information regarding claims submitted to Medicare by providers based in Illinois, Maryland, Virginia, Washington D.C. and the State of Washington. See Consumers’ Checkbook, Centers for the Study of Services v. United States Department of Health and Human Services, et al. While Consumers’ Checkbook did not request any information regarding the names or identities of particular patients, it did request information that would identify individual providers and pinpoint each instance in which the providers performed a particular service or procedure.
CMS modified its position during the litigation, but it consistently opposed at least some aspects of the FOIA request. Consumers’ Checkbook argued that it was entitled to the claim and patient care information under FOIA and explained that it intended to utilize this data to analyze the quality of patient care provided by the respective Medicare providers. It explained that its analyses and reports would allow the public to ascertain the following:
- whether the government is allowing and paying for Medicare physicians with less-than-optimal levels of experience to perform difficult procedures
- whether the government is allowing Medicare physicians with insufficient board certifications, histories of disciplinary actions, or poor scores on independent quality assessments to perform high volumes of difficult procedures for which they may not be qualified;”
- whether Medicare physicians are exhibiting practice patterns that conform with existing guidelines (e.g. whether physicians treating patients with specific diagnoses are providing annual exams and screenings recommended for those patients).
District Court Judge Emmet G. Sullivan considered the nature of Consumers’ Checkbook’s request, Consumers’ Checkbook’s asserted interests and the exemption arguments raised by CMS. In view of the controlling case law, the Court ruled in favor of Consumers’ Checkbook, requiring CMS to immediately disclose all requested information.
The disclosure of this detailed information will probably be only the first of many such disclosures concerning the claim submission patterns of Medicare providers. After this voluminous quantity of information is disclosed, it will be mined, analyzed and used to create provider profiles and scorecards. Patient groups and commercial insurance companies (also known as “payers”) tout the merits of offering such information to patients, asserting that it will empower them to make informed health care decisions. To the contrary, many providers express concerns, arguing that these analyses may be inaccurate and misleading and involve an unacceptable degree of privacy invasion.
Patient and consumer groups generally support data mining, analysis and information dissemination, explaining that the same will give patients access to critical information regarding Medicare providers, which will enable patients to make informed decisions. For instance, if a Medicare patient requires knee surgery and is considering a particular provider, she will be able to quickly determine how many knee surgeries this provider has performed for Medicare patients during the last six months, two years, etc. Likewise, if a diabetic patient wants to know whether a prospective physician is routinely performing recommended tests at appropriate time intervals for his other diabetic patients, she may be able to view a customized report or view a scorecard based upon the data mined from CMS.
To the contrary, medical providers explain that the claim details do not tell the entire story and may be presented in a misleading manner. For example, Consumer’s Checkbook’s reports will be based solely upon the Medicare data; however, most providers have both Medicare and non-Medicare patients and thus the Medicare details, alone, will only tell part of the story regarding the doctor’s procedure volume, habits and experience. Moreover, many providers argue that the quality of care criteria used by analysts is suspect and will provide an inaccurate depiction of the doctor’s true abilities and skills.
While Judge Sullivan’s decision relates solely to Medicare claims, commercial payers are mining their own claim data and are uĂing this information for various purposes, including the rating and ranking of each participating provider. The debate regarding the accuracy of such analyses has erupted in various states. For instance, the New York State Attorney General’s Office has threatened to file suit against multiple payers in view of an anticipated release of physician rankings. More than likely, there is not a legal basis for preventing such data mining and ranking; however, analyses that are misleading may violate certain state laws and regulations and may be tortuous in nature.
Invasion of Privacy
In addition to their concerns regarding accuracy, many providers assert that disclosure of claim data constitutes a privacy invasion. For instance, nothing would prevent an individual or commercial entity from readily determining a provider’s gross Medicare revenue by referring to the Medicare fee schedule. While the Medicare details only provide part of the revenue picture for most providers, this type of information may nevertheless be of great interest to vendors, court litigants (i.e., ex-spouse seeking increased alimony/support from a physician, medical malpractice or personal injury plaintiffs, etc.), medical malpractice carriers, etc. The potential for misuse is certainly present and the law does not presently provide a clear basis for shielding such information from the eyes of those who may misuse the same.
Technology convergence, a wealth of minable data and an emphasis on transparency are likely to push a great deal of claim data into the public realm. While there are concerns associated with the disclosure and use of this information, the law appears to support the actions of patient groups that wish to mine and analyze the data and insurance companies that present fair and honest analyses.
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