DC Circuit Finds Government Properly Rejected Request to Disclose Medicare Payment Data
February 26, 2009
M E M O R A N D U M
TO: Health Care Clients and Friends
FROM: Powers Pyles Sutter & Verville PC
DATE: February 26, 2009
RE: Consumers’ Checkbook Decision
The U.S. Court of Appeals for the District of Columbia recently found that the Medicare program properly rejected a Freedom of Information Act (FOIA) request for physician claims data that would have resulted in public disclosure of Medicare reimbursement amounts received by individual physicians. On January 30, 2009, the court reversed a 2007 decision by a lower court that would have required the U.S. Department of Health and Human Services (HHS) to release Medicare claims data on individual physicians. Sixteen professional groups and societies submitted an amicus (friend of the court) brief in support of the government’s refusal to release the data. The groups were represented by PPSV attorneys Rob Portman, Ron Connelly, and Hilton Marcus.
The plaintiff, Consumers’ Checkbook, a D.C.-based consumer group, hoped to access the data to determine the number of times physicians perform certain procedures, which, the group claimed, would allow the public to better assess the quality of physician services. The data, when used with the widely available Medicare physician fee schedule, would have revealed information about individual physicians’ Medicare reimbursement.
The appeals court held that the government was justified in protecting the requested data from disclosure under a FOIA exception that permitted such denials if disclosure would result “in a clearly unwarranted invasion of personal privacy.” In this case, the court found that physicians, as private citizens, have a substantial right to privacy in their financial information, including claims that are paid by Medicare. The court further ruled that the FOIA request failed to satisfy the core purpose of FOIA, which is to “shed light” on the operations of government. Judge Karen L. Henderson, writing for the majority, stated that information about private citizens—physicians treating Medicare beneficiaries—did not serve a relevant public interest because it “reveals little or nothing” about HHS’s conduct. “Accordingly, we need not balance the nonexistent public interest against every physician's substantial privacy interest in the Medicare payments he receives.”
In addition, the majority of the court did not accept Consumers’ Checkbook’s assertion that the volume of procedures conducted by an individual physician was an indicator of quality of care. Citing studies identified by the medical societies’ amicus brief, the court stated, “The medical community has not reached a consensus on whether the number of procedures performed by a physician correlates to the quality of those procedures.”
Contrary to Consumers’ Checkbooks’ arguments, the court further found that the requested data also would not allow the public to evaluate whether HHS is following its enrollment procedures, would not help the public determine whether Medicare physicians are providing services required to reach standards of recommended care, and would not reveal whether the government has reimbursed fraudulent claims. Additionally, the court found that the data would not assist the public in determining whether HHS is complying with its own transparency initiatives to provide the public with more data about service providers.
A similar lawsuit between Real Time Medical Data, a company that supplies Medicare claims data to hospitals and other healthcare organizations, and HHS over the release of physicians’ outpatient Medicare claims data in five Southern states is currently under appeal in the U.S. Eleventh Circuit Court of Appeals, located in Atlanta, Georgia. The same team of PPSV attorneys represents the group of amici in this appeal.
