On January 30th, a 3-judge DC appeals court overturned a lower court decision that would have forced public release of Medicare physician data. Writing for the majority in a split 2-1 judgment, Circuit Judge Karen LeCraft Henderson declared that
“The requested data does not serve any (freedom-of-information-related) public interest in disclosure. Accordingly, we need not balance the nonexistent public interest against every physician's substantial privacy interest in the Medicare payments he receives.”
But in a strongly worded dissent, Judge Judith Rogers, the third member of the ruling panel, found that the request by the consumer group, Consumer Checkbook, represented “a commanding and important public interest in disclosure of the data.”
“The crux of the court’s determination today that physicians’ privacy interests outweigh the public interest in disclosure is its conclusion that the requested data cannot assist the public in assessing either the quality of Medicare services or HHS’s efforts to combat fraud and waste…In reaching this conclusion the court overstates the inviolability of the privacy interest and overlooks the near undeniable fact that the requested data can be of some assistance to the public’s evaluation of how HHS is carrying out its initiatives aimed at measuring and improving health care quality and its efforts to combat Medicare fraud and waste.”
In 2007, Checkbook sued HHS under the Freedom for Information Act (FOIA) to release the Medicare physician data from four states and DC, and promised to make the data publicly available so consumers could understand physicians’ relative pricing and performance. The Bush Administration’s Department of Health and Human Services (HHS), in league with the AMA throughout this case, argued that doctors have a right to privacy that precludes the public’s right to know how government works. When the lower court found with Checkbook, the consumer group promptly sued for the data in the remaining states and territories, and HHS filed an appeal that was joined by the AMA. Amicus briefs supporting Checkbook’s position were filed by several prominent health care groups: AARP, the Center for Medicare Advocacy, Consumers Union (publisher of Consumer Reports), the National Business Group on Health, the Pacific Business Group on Health, and Judicial Watch.
This court’s decision creates an interesting set of dynamics. On the AMA’s site, a brief press release triumphantly states that
“The American Medical Association successfully fought to preserve protections against public disclosure of Medicare payments to physicians.”
“The court found that physicians have a significant right to privacy, and there is no public interest in the disclosure sought by Consumers’ Checkbook. The court clearly found that the release of personal physician payment data does not meet the standard of the Freedom of Information Act, which is to provide the public with information on how the government operates."
But the statement is attributed to a specific AMA Board member, Jeremy Lazarus MD. It must be awkward for the AMA’s new President, Nancy Nielsen, who has worked as a practicing internist for 23 years, served as Chief Medical Officer for Buffalo, NY health plan Independent Health, and represented the AMA at the National Quality Forum. Dr. Nielsen told the Wall Street Journal that she “endorses insurers’ use of report cards but wants doctors involved in what is rated.”
I am not a lawyer, so may not appreciate the full power of the ruling, but several observations come to mind.
First, the decision appears to be a very narrowly drawn response to the question of whether the release of physician-specific Medicare payment data meets the standard of the Freedom of Information Act. If that is the case, then it does not seem to be a very definitive or strong barrier to future efforts to make Medicare physician data publicly available.
And while the AMA undoubtedly will use the ruling to fight future efforts, the Obama Administration’s ascent presumably is accompanied by the belief that greater pricing and performance transparency are critical to the public interest, including efforts to identify and reduce health care waste and inappropriateness. It is difficult to imagine that this decision could withstand the overwhelming pressure to make transparency a core value of national health reform.
So the remarkable thing is that the judgment appears to have been made outside the context of the data’s potential impact on health care cost and quality. Checkbook’s President Robert Krughoff highlighted this point in his response:
“The inexplicable thing about the majority’s opinion is that the two judges in the majority didn’t understand, or acknowledge, any counter-balancing public benefit that would result from allowing the public access to the requested data."
A question now is whether HHS or CMS can simply make the Medicare physician data available. After all, physicians delivering services through Medicare and Medicaid are vendors taking public dollars. Hospitals providing services through those programs do not enjoy the same special protection, and their data are released to the public.
More to the point, while few credible physician data sets are publicly available at this time – the commercial health plans typically hold their data close, treating them as proprietary – a great deal of evidence has been developed over the years to show dramatic differences in the cost and performance of physicians by specialty and market. Jerry Reeves MD, the Chief Medical Officer of the UNITE HERE health plans, presents a slide showing a 6x-8x difference in resource consumption – that is, cost – between the least and most expensive physicians in a specialty and market to obtain the identical outcome.
At this point, patients have virtually no objective data available to guide their physician choices. Organizations like HealthGrades and Emily’s List aggregate peripheral information about physician education and training, patient experiences and brushes with medical malpractice incidents, but there is no substitute for credible data that would point to, say, rates/ranking on post-surgical infections, re-admissions or adherence to guidelines.
One irony here is that the Bush health team constantly trumpeted the idea of transparency, while blocking its fruition at every turn. This ruling is a last gasp of the old paradigm, an attempt to protect the entrenched interests that have brought American health care to its current sorry state.
My guess is that the Appeals Court’s decision for physician privacy at the expense of patient knowledge will be extremely short-lived, and end up being nothing but a minor negative footnote in the steady march toward better health care in America. Certainly, there is good evidence that some progressive health plans increasingly understand the value of using their data to drive better patient decisions, and to make physicians aware of their own performance.
Dr. Nielsen at the AMA has the experience, background and opportunity to own up to this reality as well. It will be interesting to see whether she possesses the strength of leadership to seize that opportunity.
But one thing is clear. This ruling is hardly the last word on physician transparency.