On January 14, 2014, the Centers for Medicare & Medicaid Services (“CMS”) announced a new policy regarding requests made under the Freedom of Information Act (“FOIA”) on amounts paid to individual physicians under the Medicare program. This notice reverses more than 30 years of prior policy. CMS will now make case-by-case determinations as to whether exemption 6 of FOIA applies to a given request for such information. The new policy will take effect 60 days after publication in the Federal Register, which is scheduled Friday, January 17, 2014.
This announcement flows from a May 2013 ruling by U.S. District Judge Marcia Morales Howard in Jacksonville, Fla. where she lifted a 1979 injunction that barred the release of Medicare payment data holding that physicians’ privacy concerns no longer outweighed the public interest in releasing the data.
Following the court’s ruling, CMS sought public comment on its proposed policies with respect to the disclosure of individual physician payment information. Physician groups expressed caution in Medicare releasing such information, saying it could lead to “misleading conclusions and unintended consequences.”
CMS notes that it recognizes these valid concerns raised by stakeholders. In turn, CMS will consider the importance of protecting physician’s privacy and ensure the accuracy of any data that is released as well as appropriate protections to limit potential misuse of the information. However, CMS believes that replacing the prior policy is “the best next step for the agency.”
Under the new policy, CMS will make case-by-case determinations as to whether exemption 6 of FOIA applies to a given request for information regarding individual physician payment information. Exemption 6 requires CMS to weigh the balance between the privacy interest of individual physicians and the public interest in the disclosure of such information. The outcome will depend on the facts and circumstances of each individual case.
This policy change is in accordance with CMS’ ongoing effort to make information more available to the public. In 2010, HHS launched the Health Data Initiative to promote transparent, innovative, and safe data use. Since then, the agency has released an “unprecedented amount” of aggregated data with much of it available at www.healthdata.gov.
In light of this change, physicians need to be aware of the potential consequences associated with the possible disclosure of such information. Specifically, this policy opens the risk for government investigation, the use of information by competitors, and the perception of impropriety.
For more information, or for questions related to regulatory matters, please contact Adrienne Dresevic, Esq., or Clinton Mikel, Esq., at (248) 996-8510 or via email at email@example.com or firstname.lastname@example.org.