In 1979, Jimmy Carter (D) was president, Sony released the first-ever walkman, a gallon of gas cost 86 cents and "My Sharona" by The Knack was the number one song for six weeks. Suffice to say, a lot has changed in the past 32 years.
We've seen five U.S. presidents since Carter, cassette tapes are essentially a thing of the past, the cost of gasoline has more than quadrupled and the Billboard charts now are dominated by artists like Adele and Lady Gaga.
But one thing hasn't changed much since 1979 -- the debate over whether the public should have access to the Medicare claims database.
In 1979, the American Medical Association filed a lawsuit to block the federal government from releasing data on how much Medicare pays individual doctors, arguing that doing so would violate physicians' privacy. The court sided with AMA, but the ruling did not quell debate on the issue.
Consumer advocates, lawmakers and others have long argued that access to the database could help root out Medicare fraud and lead to improved care and efficiency.
In 2006, the not-for-profit Consumers' Checkbook filed a Freedom of Information Act request for access to Medicare claims information on procedures performed by doctors in several states. HHS denied the request based on the earlier court ruling. The consumer advocacy group then filed a lawsuit, arguing that health care data transparency is in patients' best interest. In August 2007, a federal court in the District of Columbia ordered HHS to release the data, but a U.S. Court of Appeals reversed the lower court's ruling, stating that the release of such data would lead to an "unwarranted invasion of personal privacy" of doctors.
Proponents for access to the Medicare claims database have gone to the courts once again to overturn the 1979 ruling. In January 2011, Dow Jones & Company, publisher of the Wall Street Journal, filed a lawsuit in the U.S. District Court for the Middle District of Florida, to grant the public access to claims information included in the database.
Dow Jones general counsel Mark Jack said in a statement that prohibiting access to the database has hindered the Journal's reporting ability and "has allowed some doctors to defraud Medicare free from public scrutiny."
Meanwhile, two other policy developments could open up access to the database. A health reform law provision on comparative effectiveness research directs the HHS secretary to make standardized extracts of Medicare claims data available to qualified groups to evaluate performance on quality, efficiency and effectiveness.
A bill (S 756) recently introduced by Sens. Chuck Grassley (R-Iowa) and Ron Wyden (D-Ore.) goes a step further. The Medicare Data Access for Transparency and Accountability Act, or the Medicare DATA Act, would require the HHS secretary beginning in 2013 to issue regulations to provide the public with access at no cost to a searchable Medicare payment database. The legislation also would clarify that Medicare data on payments made to health care providers and suppliers do not fall under a Freedom of Information Act exemption.
Debate Like It's 1979...
While today's lawsuits and legislation on the issue are new, many of the players and their arguments are the same.
Many employers and consumer groups believe that allowing access to the Medicare claims database will help improve quality and efficiency of care, identify potential fraud and abuse in the Medicare program and facilitate research on geographical and other variations in care.
In a letter to Grassley and Wyden, National Business Group on Health President Helen Darling wrote, "With consumers, taxpayers and employers spending more than $2.6 trillion on health care, it is critical that we have the right information to ensure value for that spending." She continued, "Employers and consumers need to have access to the Centers for Medicare and Medicaid Services' Medicare claims data to ensure that we are able to identify high quality care and efficient, effective performance. Without the volume of patient visits from the Medicare claims data, it is difficult to have reliable data on performance, particularly for Medicare providers."
Steven Findlay, senior health policy analyst at Consumers Union, said, "There can be no transparency or accountability without this kind of data."
Consumers Union -- which filed a friend-of-the-court brief in support of the Consumers' Checkbook lawsuit to open up the claims database and lobbied heavily for the health reform law provision -- has yet to take a formal position on S 756, but Findlay said his organization is very supportive of the concept of full transparency of the Medicare database.
The American Medical Association -- which filed the 1979 lawsuit that blocked the release of Medicare claims data -- has lobbied aggressively on the issue over the last 32 years. AMA and other doctors' groups argue that making the Medicare claims database public would be a violation of physicians' privacy and potentially could drive some doctors to leave the Medicare program. They also argue that access to such data could result in consumers making false or misleading conclusions.
In a statement, AMA President Cecil Wilson said, "Physicians, like all Americans, have the right to privacy and due process, and should not suffer the consequences of having false or misleading conclusions drawn from complex Medicare data that [have] significant limitations." He added that "[p]hysicians who provide care to Medicare patients are already subject to widespread government oversight" and that "federal agencies and contractors have access to the full-range of Medicare data and are aggressively ferreting out improper claims."
In an email to iHealthBeat, James Rohack -- AMA's immediate past president -- said AMA opposes the Medicare DATA Act because it would make public physicians' National Provider Identifier number, putting doctors at risk of identity theft. He said, "Physician identity theft resulting from publications of these numbers is already a problem, similar to the publication of an individual's Social Security number, and release of these numbers in conjunction with detailed billing information will significantly increase the risk of fraud. " He added, "Medicare claims data alone cannot identify quality care, and the public release of Medicare claims data, without the complete medical record and due process, would often be misleading, inaccurate and disruptive to patients' longstanding relationships with their physicians."
Findlay said, "I think we understand the physician community's concerns that there's the opportunity here for misinterpretation if the data are not accompanied by clear explanations of how to interpret them, as with any database," adding, "It's complicated, very complicated, to explain this stuff and do the data analysis correctly."
"That said, the potential public benefit from the release of this data, with physician identifiers in an appropriate way, ... far outweighs the risks for misinterpretation," Findlay said.
Grassley in a statement said, "Taxpayers should have a right to see how their hard-earned dollars are being spent," adding, "Also, if doctors know their billing information is public, it might deter some wasteful practices and overbilling."
Grassley acknowledged that "[v]olume alone doesn't automatically mean there's fraud, waste or abuse" and that to alleviate some of AMA's concerns the bill "would require a disclaimer that the data in the public database 'does not reflect on the quality of the items [or] services furnished or of the provider of services or supplier who furnished the items or services.'"
Forecast for Court Case, Legislation
Findlay said that society is beginning to embrace and recognize the concept of health care provider accountability. He said, "Hopefully, the courts will embrace that and recognize that subject to explanations [and] subject to careful scrubbing of the data for any proprietary information," the database should be made public.
The National Business Group on Health noted that while the Medicare DATA Act has a good chance for passage in the Senate, its future in the GOP-led House remains uncertain.
Findlay said, "I certainly hope it gets deliberated," but he noted that because the bill builds on a health reform law provision, it likely faces an uphill battle with Republican House lawmakers who are on the record for wanting to repeal the law.
While AMA likely will continue to lobby against the legislation, Rohack said, "AMA is working to find uses for Medicare claims data that truly promote the delivery of quality medical care and will continue to do so."