Judge Breathes New Life in Medicare Privacy Case

CN) - A federal judge reopened a 32-year-old ruling that barred the government from identifying the name and income of Medicare providers in released medical records, giving Dow Jones & Co. permission to intervene.

In 1978, the Florida Medical Association (FMA) asked a federal judge to stop the Department of Health from publishing information about annual reimbursements paid to Medicare providers in a way that would disclose the providers' identity. The group filed suit after a 1977 report made public a list of physicians who received $100,000 or more in Medicare reimbursements in 1975. The data, which was widely publicized in the media, later proved to be inaccurate.

The American Medical Association, representing more than 200,000 doctors nationwide, joined the state organization. A federal judge recertified the class to include all physicians licensed to practice in Florida and all members of the AMA who provided Medicare services.

The plaintiffs had argued that Medicare data met an exemption of the Freedom of Information Act and such release would violate the Privacy Act, convincing the court that disclosure would "constitute a clearly unwarranted invasion of personal privacy." An October 1979 injunction permanently barred the release of annual Medicare reimbursement amounts that individually identified Medicare providers, except when needed by law-enforcement agencies.

More than 30 years later, Dow Jones sought to reopen the case and reverse the 1979 decision. The publisher of The Wall Street Journal claimed that the injunction interfered with the Journal's reporting on possible fraud, waste and abuse by Medicare providers.

The Wall Street Journal and a nonprofit journalism organization, Center for Public Integrity, began to investigate Medicare data in 2009, but the Department of Health denied Dow Jones' request to access a database containing Medicare billing and reimbursement information, based on the 1979 decision. Dow Jones eventually reached an agreement with the government, which allowed it to buy some of the needed files. To protect Medicare providers' identity, however, the agreement restricted the manner in which the information could be published.

Based on the information it obtained, the Journal published a series of articles about Medicare in 2010 and earlier this year. But Dow Jones claimed that the 1979 injunction, which caused the government to limit its access to Medicare data, interfered with its continued reporting on the subject.

In its January bid to intervene in the 32-year-old lawsuit, Dow Jones asked the Middle District of Florida to declare that the complete Medicare files must be released under FOIA and that the disclosure of the individual providers' names did not violate the Privacy Act. It also demanded access to the Medicare files in their entirety.

Real Time Medical Data, a medical marketing company, also asked to intervene in the action, claiming that the 1979 injunction limited its access to Medicare claims information that directly affected its clients' health care operations.

Though Real Time asked the court to dissolve the injunction and asserted similar claims under FOIA and the Privacy Act, it argued that the requested Medicare information was different from the data sought by Dow Jones, and therefore Dow Jones could not adequately represent its interests.

The Department of Health did not oppose Dow Jones' request to reopen the case, nor the parties' motions to intervene, but it argued that the new claims were untimely and not related to the original action. The government also claimed that the Jacksonville, Fla., court lacked jurisdiction over the action.

In a Sept. 26 ruling, U.S. District Judge Marcia Morales Howard agreed that Dow Jones' and Real Time's motions to intervene were timely, even though the injunction in question had been in place for 32 years. She noted that the case presented unusual circumstances, including "the important questions raised by the proposed intervenors - whether Medicare records which identify Medicare providers' income should remain protected by the 1979 FMA injunction and its application of the Privacy Act and the privacy exemption to FOIA, given the alleged change in circumstances underpinning that injunction. These circumstances militate in favor of a determination that the motions to intervene are timely."

Howard also ruled that Dow Jones and Real Time had legitimate interests in obtaining the protected government records, which were related to the operation of their businesses and the dissemination of information to the public.

Both Dow Jones and Real Time had been denied access to the records based on the 1979 injunction, therefore they sufficiently alleged that the injunction affected their interests, according to the ruling.

The court found that the original plaintiffs, the Florida and American Medical Associations, could not represent the proposed intervenors' interest in obtaining access to the Medicare records, and were not interested in reversing the 1979 injunction.

Though Howard upheld a magistrate judge's report that recommended granting the intervention requests, she disagreed about the scope. The court rebuffed the proposed intervenors' attempt to bring new claims, noting that the parties are free to file their own FOIA lawsuits if the 1979 decision is reversed.

Howard ruled that "no party in this action is permitted to 'start over' and re-litigate individual claims or assert new claims at this point in time. Indeed, even if they wished to do so, the original parties to this action could not at this time, 32 years after entry of final judgment, reopen this proceeding to re-litigate old claims or raise new claims much less seek access to a particular collection of Medicare records, which most likely did not exist at the outset of this litigation in 1978, and at the time of entry of the permanent injunction in 1979."

Dow Jones and Real Time may only seek reversal or modification of the 1979 decision, according to the order.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit