Consumers' Checkbook v. HHS Update

The WSJ Health Blog, "Feds Fight to Keep Doctor Data Secret," has the latest on the Consumers' Checkbook v. HHS matter involving whether or not Medicare physicians claims data should be made publicly available. Consumers' Checkbook, a nonprofit consumer information and service resource, wants to use the data to rate physicians and health care services.

Last week the DOJ filed its appeal and HHS released this statement regarding appeal of Consumers' Checkbook Decision explaining the basis for opposing (and supporting) release of the data. The press release states:

HHS is appealing this decision because of two conflicting court opinions that control HHS’ release of data. Release of certain Medicare claims data is currently governed, in part, under an existing order issued by a federal court in Florida in 1979. That order, which is still in effect, prohibits Medicare from releasing physician reimbursement data in a manner that would enable the user of that data to identify individual physicians. The court order states that this information is protected by the Privacy Act of 1974. The data sought by Consumers Checkbook, when combined with other publicly-available data on Medicare fees, could lead to the disclosure of annual Medicare reimbursement amounts for individual physicians. Release of the data would, therefore, result in a violation of the existing Florida court order. On the other hand, HHS faces the decision rendered last year by the District of Columbia court ordering the release of the data. HHS argues in its appeal that the recent decision is based on an erroneous application of the Florida court order and of the Freedom of Information Act’s exemption that protects privacy. The Department seeks resolution of this conflict from the Court of Appeals.

Beyond the legal issues that must be resolved, HHS recognizes and shares the goals of Consumers Checkbook. Like Consumers Checkbook, HHS seeks to support consumers and providers with quality performance and cost information for a variety of providers and plans. For many years, HHS has worked closely with providers and other stakeholders in developing and reporting quality information, including the use of national consensus-based quality performance measures. While Consumers Checkbook seeks to post the number of times a provider has performed a specific service, the quality measures used by HHS generate more valid, specific, and comprehensive information on the quality of care delivered.

For background on the legal saga check out my prior post.