SAN FRANCISCO — You won't believe who's seeking access to your Medicare claims data—and what they want to do with it.
A little-known consumers group aiming to force the Health and Human Services department to provide Medicare billing data with physician identifiers recently was rebuffed by a narrow margin in federal appeals court. Meanwhile, another federal court has ruled in favor of a similar Freedom of Information Act request by another organization, setting the stage for a likely legal showdown with major implications for physicians.
“I think given the disagreement in these two cases, this is likely to be a higher court issue. We might actually see this going to the Supreme Court,” Dr. Jack S. Resneck Jr., predicted to a full house at a special “Issues Impacting Your Practice” session held at the annual meeting of the American Academy of Dermatology.
Consumers' Checkbook, a small nonprofit group, sued HHS seeking data on Medicare payments to physicians for the express purpose of reporting on the volume and appropriateness of procedures individual physicians were performing as a guide to quality of care.
In 2007, the group prevailed in U.S. District Court. The American Medical Association then joined HHS in appealing the verdict, with the American Academy of Dermatology and other medical organizations filing friend-of-the-court briefs on their behalf. AARP was among the groups that did the same for Consumers' Checkbook.
In late January, the U.S. Court of Appeals for the District of Columbia reversed the lower court decision on a 2–1 vote, awarding victory to HHS and the AMA.
Consumers' Checkbook is expected to ask for reconsideration of the decision by the full appeals court.
Meanwhile, a similar Freedom of Information Act-based lawsuit filed by Jennifer Alley, owner of a small company called Real Time Medical Data, had a very different outcome. A U.S. District Court in Alabama ruled in her favor and ordered HHS to provide Medicare claims data with physician identifiers for five southern states so Real Time Medical Data could sell it to hospitals, insurance companies, and pharmaceutical companies. The HHS and AMA have appealed. Ms. Alley has asked the 11th U.S. Circuit Court of Appeals in Atlanta to hold HHS in contempt for not releasing the data.
Legal scholars have framed the core issue in these two cases as a fundamental conflict between the public's right to know how federal tax dollars are spent as expressed in the Freedom of Information Act versus physicians' right to privacy. However, Dr. Resneck has an additional practical concern: Using Medicare billing data to characterize quality of care is likely to create a misleading picture.
“Volume is just one tiny piece of measuring physician quality. This is a little scary. These folks [at Consumers' Checkbook] have no experience with evidence-based quality measures, no experience with risk adjustment, and have no access through these claims data to outcome measures,” said Dr. Resneck, a dermatologist at the University of California, San Francisco, and chair of the AAD Council on Government Affairs, Health Policy and Practice.
“And remember, Medicare is a big payer, but it's just one payer. So … depending on somebody's patient mix you could miss the vast majority of what they're doing,” he noted.