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Release of Medicare physician payment data: The sun may be shining brighter than you thought
From international law firm Arnold & Porter LLP comes timely views on current regulatory and legislative topics that weigh on the minds of today’s physicians and health care executives.
Earlier this year, CMS released regulations implementing the Physician Payment Sunshine Act, a provision of the health care reform legislation that requires manufacturers of drugs, devices, biologics and medical supplies to disclose to CMS payments made to physicians and teaching hospitals. Data collection this year will cover the period Aug. 1 through Dec. 31, and the data will be available on a publicly-accessible website on Sept. 30, 2014. Beginning Jan. 1, data will be collected on a calendar year basis, and published the following Sept. 30.
Alan E. Reider
Implementation of the Physician Payment Sunshine Act has been anticipated for some time. The legislation was passed in 2009 and the first disclosure will not take place until September 2014. What has not been anticipated, however, is that the disclosure of payments to physicians from manufacturers may not be the only payment data disclosed. As a result of a recent court decision, data relating to Medicare payments to physicians also may soon become publicly available. The release of such information could well dwarf the impact of the Physician Payment Sunshine Act.
A bit of history is in order here. Almost 40 years ago, as a result of a Freedom of Information Act request, the Medicare program released what was then known as the “$100,000 List,” a listing of all physicians who were paid $100,000 or more by Medicare. Unfortunately, the data released had numerous errors and provided misleading information. Even worse, the information was sensationalized in the press, and physicians who appeared on the list were presented in a highly unfavorable light. In 1979, however, the Florida Medical Association successfully obtained a permanent injunction, barring the Department of Health and Human Services from releasing the reimbursement information on the grounds that releasing such information violated the physicians’ privacy rights. That injunction remained in place for 34 years, until May 31, when a U.S. district court judge in Jacksonville, Fla., overturned the injunction, potentially opening the door to releasing, once again, Medicare physician payment data.
The court ruling does not assure release; it simply means that HHS is no longer barred from releasing the data if, or when, someone files another Freedom of Information Act request. Once a request is filed, HHS either will release the data, or deny the request, based on some statutory exemption. Given the current philosophy of the Obama administration to assure as much transparency as possible, however, there is a strong likelihood that a future request for such information will be granted.
Physicians who work with manufacturers have been anxious about the potential use and abuse of the disclosures that will take place next year under the Sunshine Act. The potential impact of releasing that information, however, could pale in comparison to the impact of releasing Medicare physician compensation data. And while we anticipate that the systems in place should reduce the likelihood of the errors that occurred in the late 1970s, there is no system that can prevent the potential abuse that may result from release of compensation information, all in the interest of the public’s right to know.
Alan E. Reider, JD, can be reached at Arnold & Porter LLP, 555 12th St. NW, Washington, DC 20004-1206; 202.942.6496; email: Alan.Reider@aporter.com