Judge Ends 33-Year Ban on Medicare Data Release

     (CN) – A federal judge in Florida lifted a 33-year-old injunction barring the government from releasing doctors’ Medicare reimbursement rates to the public.
     The injunction was originally put in place in 1979, after the Florida Medical Association and six doctors objected to a government list identifying the physicians or practices who received $100,000 or more in Medicare reimbursements in 1975.
     The then-secretary of the U.S. Department of Health and Human Services had been poised to publish another list, this one identifying all physicians and providers who received Medicare reimbursements in 1977.
     The late Senior District Judge Charles Scott granted their request for an injunction on Oct. 22, 1979. He said doctors’ privacy interests trumped the public’s interest in disclosure.
     The order barred the agency revealing “any … annual Medicare reimbursement amounts, for any years, in a manner that would personally and individually identify the providers.”
     Although the order has been tweaked to allow limited disclosure of physicians’ data, including to law enforcement officials, it has otherwise remained intact until Dow Jones, publisher of The Wall Street Journal, challenged it in 2009.
     Dow Jones sought access to a government file it said has “essentially limitless potential to help expose fraud, waste, and abuse in the Medicare system.”
     Though the government initially denied the FOIA request, the parties reached a settlement in January 2010 and voluntarily dismissed the case.
     The settlement allowed Dow Jones and journalism nonprofit Center for Public Integrity to buy a portion of the file containing all billings for a randomly selected 5 percent of Medicare recipients.
     The Wall Street Journal then published a series of articles detailing possible fraud and waste by Medicare providers.
     Dow Jones later moved to intervene in the Florida case, claiming the 1979 injunction interfered with its reporting on Medicare.
     A company called Real Time Medical Data, which uses Medicare data to help hospitals with marketing and strategic planning, also moved to intervene. It cited “today’s urgent public interest in disclosure” based on the ballooning cost of Medicare: “$510 billion in 2010, with an anticipated 5.6 percent annual increase in costs over the next decade.”
     Both Real Time and Dow Jones argued that the reimbursement data could help expose Medicare fraud, and that similar data has already been made available to the public.
     “These changes have … fundamentally altered the calculus so that the privacy interests of physicians no longer clearly outweigh the compelling public interest in monitoring a program that now consumes one out of every eight federal dollars,” Dow Jones argued.
     U.S. District Judge Marcia Morales Howard in Jacksonville, Fla., agreed and vacated the injunction late last month.
     The “forward-reaching injunction enjoins an agency policy that no longer exists, and anticipates possible future agency action that may never come to pass,” Howard wrote.
     “Such an injunction is impermissible under the Privacy Act and conflicts with objectives of FOIA to encourage disclosure.”
     She continued: “The effect of the 1979 FMA Injunction is to prohibit any future
     evaluation of whether or not any individualized Medicare provider reimbursement data may
     be accessed by the public, foreclosing any consideration of relevant factual conditions
     including any which may have changed in the past 33 years, or the next 33 years, and which
     may affect the balance between competing public and private interests.”

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