On August 6, the Centers for Medicare & Medicaid Services (CMS) posted a notice (Notice) on its website seeking public input as CMS considers what would be the most appropriate policy regarding release of physician payment data.
Florida Case Summary
The Notice follows a May 31 decision by a Florida federal district court to vacate a permanent injunction that the court had issued in 1979. The permanent injunction prohibited the Department of Health, Education, and Welfare (as the U.S. Department of Health & Human Services (HHS) was then known) from disclosing annual Medicare reimbursement payments made to individual physicians in a manner that could identify individual physicians.1 In 1980, in response to the 1979 injunction, HHS adopted a policy which states that "the public interest in the individually identified payment amounts is not sufficient to compel disclosure in view of the privacy interests of the physicians."
In 2011, Dow Jones & Company and RealTime Medical Data sought to access physician-level Medicare payment amounts from HHS through a Freedom of Information Act request. Given the existing 1979 permanent injunction, these entities formally intervened in the Florida case and petitioned the court to overturn the injunction. HHS also joined in the petition, on the grounds that the 1979 injunction was no longer equitable because it was a type of broad, prospective injunctive relief that was no longer authorized under the Privacy Act2 after the Eleventh Circuit's decision in Edison v. Department of the Army.3
The district court concluded that the question before it was not whether the information protected from disclosure by the 1979 injunction should be disclosed or whether the issuance of the injunction in 1979 was correct, but whether a significant change in either factual conditions or in law renders continued enforcement of the 1979 injunction detrimental to the public interest. The district court concluded that the 1979 injunction was based on a legal principle that could no longer be sustained. Therefore, the district court vacated the 1979 injunction.
Request for Public Comment
Given the new legal developments and HHS' commitment to promote the transparent, innovative, and safe use of data, CMS requested input as to how to modify its current policy regarding the release of physician payment data. Specifically, CMS is seeking comments and input regarding the following:
Submission of Comments
Electronic or written comments must be received by CMS by no later than 5:00 pm Eastern on September 5 (30 days from the August 6 Notice).
Copyright 2013, American Health Lawyers Association, Washington, DC. Reprint permission granted.
1See Florida Medical Ass'n, Inc. v. Department of Health, Ed. & Welfare, 479 F.Supp. 1291 (M.D. Fla. 1979) and 2013 WL 2382270 (M.D. Fla. May 31, 2013).
25 U.S.C. § 552a.
3Edison v. Department of the Army, 672 F.2d 840 (11th Cir. 1982).