MEDICARE PAYMENT DATA NOW SUBJECT TO THE FREEDOM OF INFORMATION ACT
 
Question: Why are patients now entitled to know how much Medicare payments physicians receive when this information was previously considered private?
 
Answer:  Effective March 18, 2014, Medicare officially began accepting requests from the public under the Freedom of Information Act (“FOIA”) for information on amounts paid to individual physicians under the Medicare program. Previously, the policy regarding disclosure of amounts paid to individual physicians under the Medicare program stated that, in considering the two competing interests of public transparency and privacy, the public interest in the disclosure of the amounts that had been paid to individual physicians under the Medicare program was not sufficient to compel disclosure under the FOIA. The policy was premised on two courts finding a compelling privacy interest on the part of the physicians and the United States District Court’s issuance of a permanent injunction in the Florida Medical Association matter, which barred the disclosure of identifiable annual Medicare reimbursement payments of individual physicians or disclosure of payments in a manner that could identify individual physicians. That District Court vacated its permanent injunction on May 31, 2013 after determining that such a broad injunction was no longer authorized under the Privacy Act after the U.S. Court of Appeals for the Eleventh Circuit’s decision in Edison v. Department of the Army (11th Cir. 1982), and thus its continued enforcement was no longer equitable. Following the court’s decision, CMS solicited public comment on August 6, 2013 on its proposed policies with respect to disclosure of individual physician payment information. After a review of the court’s decision and the public comments received by CMS, the Secretary has decided to replace the prior policy with a new policy in which CMS will make case-by-case determinations of whether exemption 6 of the FOIA applies to a given request for such information. CMS will weigh the balance between the privacy interest of individual physicians and the public interest in disclosure of such information. As the outcome of the balancing test will depend on the particular circumstances, the outcomes of these analyses may vary depending on the facts of each case. However, in all cases, CMS has advised that it is “committed to protecting the privacy of Medicare beneficiaries.” For a link to CMS’ notice of this new policy and to review the comments from CMS’ request for public comments, you can go to http://ow.ly/vx1YO.

If you have any questions, please contact our Managing Partner, Michael J. Schoppmann, Esq at 1-800-445-0954 or via email at MSchoppmann@DrLaw.com.



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