kaisernetwork.org – Feb. 4, 2009.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia on Friday reversed a 2007 decision by a lower court that would have required HHS to release Medicare claims data under the federal Freedom of Information Act, the AP/Seattle Post-Intelligencer reports (Alonso-Zaldivar, AP/Seattle Post-Intelligencer, 2/2).  Click title to read more…

In August 2007, the U.S. District Court for the District of Columbia ruled that the department had to release Medicare claims data on more than 40 million beneficiaries and 700,000 physicians in Illinois, Maryland, Virginia, Washington state and Washington, D.C. In the case, Consumers’ CHECKBOOK/Center for the Study of Services filed a lawsuit to obtain access to the data, which the group planned to post online for the public. Researchers could analyze the data to determine the number of times physicians perform certain procedures and to compare the mortality rates among patients of certain physicians, and health insurers could use the data to improve their analyses of physician quality. HHS argued that the release of the data would violate the privacy of physicians, but the court rejected that argument as Medicare claims account for only a portion of the incomes of physicians. In April 2008, HHS appealed the decision (Kaiser Daily Health Policy Report, 4/21/08).

In a 2-1 decision, the appeals court panel ruled that FOIA is intended to provide information on the operations of government, not private businesses. “The requested data does not serve any (freedom-of-information-related) public interest in disclosure,” Judge Karen LeCraft Henderson wrote for the majority, adding, “Accordingly, we need not balance the nonexistent public interest against every physician’s substantial privacy interest in the Medicare payments he receives.”

Reaction
Robert Krughoff, president of Consumers’ CHECKBOOK, said that he was “quite surprised” by the decision because health care costs and quality of care are among the most important issues faced by the government. He said, “The majority opinion seems to misunderstand how these data would be used,” adding, “It doesn’t accurately portray how the data can be used to monitor the quality of health care provided.”

Jeremy Lazarus — a spokesperson for the American Medical Association, which joined HHS in the appeal — said, “This is a momentous victory for the privacy rights of physicians.”

According to the AP/Post-Intelligencer, the “case is being closely watched as an important battle in the effort to reshape the nation’s health care system,” as consumer advocates, employers and health insurers “argue that access to Medicare claims filed by doctors’ offices could help independent groups monitor quality and ferret out waste” (AP/Seattle Post-Intelligencer, 2/2).