
A Senate bill aimed at curtailing Medicare fraud would  publish physician billing data online, letting viewers determine how  much individual doctors earn annually from the program.
The release of the data has been prohibited by a court ruling for  more than 30 years. But some lawmakers recently stepped up their efforts  to lift the ban and bring Medicare billing data to light to prevent  fraud.
Sen. Charles Grassley (R, Iowa) introduced a program integrity  measure before a Senate Finance Committee hearing on Medicare and  Medicaid fraud on March 2. The bill in part would require the Dept. of  
Health and Human Services by the end of 2012 to start publishing  Medicare claims and payment data on the website USAspending.gov.
In making the information public, the government could help prevent  billions of dollars each year from going to those defrauding the  program, Grassley said. Sen. Ron Wyden (D, Ore.) said he was drafting  his own legislation that would make Medicare claims data publicly  available.
"More transparency about billing and payments increases public  understanding of where tax dollars go," Grassley said. "The bad actors  might be dissuaded if they knew their actions were subject to the light  of day."
But the American Medical Association, along with HHS, has opposed  challenges to the decades-old ban on publicizing the information.  Physician organizations have said allowing public access effectively  could permit anyone to determine how much an individual doctor makes in a  year, especially if that doctor has a patient population that is mostly  Medicare. Publicizing raw claims data without any necessary context  would be of dubious anti-fraud value, they said.
"Releasing Medicare claims data to the public does not further the  goal of combating fraud, as those tasked with this responsibility  already have access to the data," said Ardis Dee Hoven, MD, chair of the  AMA Board of Trustees.
However, Grassley said the government is not the only entity trying  to smoke out Medicare fraud. During the Finance hearing, he cited a  recent series of 
Wall Street Journal articles that examined  Medicare claims from 1999, 2001 and 2003-08. Under a special  arrangement, the journal, working with the Center for Public Integrity  in Washington, D.C., paid the Centers for Medicare & Medicaid  Services $12,000 for a 5% sample of the Medicare carrier payment file  for those years. The newspaper reported that it was able to identify  tens of thousands of physicians and other health professionals who could  be considered outliers based on the relatively large amounts they  billed Medicare in those years.
However, the journal could not name the physicians based on its data  usage agreement with CMS. That policy stems from the federal court  decision that protects the privacy of the physician data.
"I think it's time to revisit this decision and make some  transparency of payment physicians receive from Medicare," said  Grassley, a long-time farmer. "Pretty much like you will see Chuck  Grassley's name in the newspaper sometimes that I've gotten a farm  subsidy through the U.S. Dept. of Agriculture."
Reviving an old court fight
In 1978, the Florida Medical Assn. and six physicians filed a  class-action lawsuit to prevent the predecessor department to HHS from  disclosing a list of all medical professionals who received Medicare  payments the previous year. The AMA joined the lawsuit as a plaintiff in  June 1978.
In October 1979, the judge in the case ruled that individual billing  data were exempt from public disclosure laws and barred the department  "from disclosing any list of annual Medicare reimbursement amounts, for  any years, which would personally and individually identify those  providers of services under the Medicare program." The ruling protects  AMA members and doctors in Florida, but HHS has applied the prohibition  to all physician billing data.
Several recent challenges to the 1979 ruling have failed. In 2009, an  appeals court decided that the government was not required to release  claims information to the marketing firm Real Time Medical Data based in  Birmingham, Ala. The same year, another appeals court denied a similar  request from Consumers' Checkbook/Center for the Study of Services, a  nonprofit consumer organization based in Washington, D.C. In that case,  the court said release of the data was an "unwarranted invasion of  personal privacy."
In the latest legal challenge, 
The Wall Street Journal's  parent company, Dow Jones & Co., filed motions on Jan. 25 to reopen  the 1979 case and intervene as a defendant. A federal judge is  scheduled to hear arguments on these motions on April 14.
The paper said the original decision prevented reporters from naming  physicians they believed were defrauding the Medicare program.
In a series of articles, titled "Secrets of the System," the  newspaper cited doctors with questionable billing records. For instance,  one New York family physician took in more than $2 million in 2008 from  Medicare, the journal reported.
The AMA, meanwhile, "intends to vigorously defend the current  injunction, which protects the privacy of physician data while allowing  it to be seen by the agencies working to identify fraud," Dr. Hoven  said.
"Medicare fraud threatens our entire health care system, and the AMA  supports targeted efforts by the Dept. of Justice, [HHS] Office of  Inspector General and others to identify perpetrators of fraud -- the  vast majority of whom are not physicians," she said.
There's little doubt that the vast majority of physicians are billing  the Medicare program appropriately, said Jason Conti, an attorney for  Dow Jones in New York. However, restrictions on access to the claims  data prevent further investigation of true outliers in the program.
"If the data is released, more fraud will be exposed," he said.
As it has since 1979, HHS is opposing reopening the case. The  restrictions placed on the newspaper in the data usage agreement are  based on a statutory exception to the Privacy Act of 1974 and not the  1979 court decision, HHS said in court papers.
This article was originally posted at 
http://www.ama-assn.org/amednews/2011/04/04/gvl10404.htm