HHS Secretary Mike Leavitt has made "transparency" a priority in his vision of how to reform the health care system. In the secretary's view, "Every American should have access to a full range of information about the quality and cost of their health care options." Indeed, Leavitt's view on transparency is inextricably linked to HHS' health IT strategy.
To that end, Leavitt and his predecessors have made comparative performance data -- rudimentary though it may be -- on health plans, hospitals, home health, nursing homes and dialysis providers publicly available. Conspicuously absent is any publicly available information from HHS regarding physician performance. While no reason has been offered for such an omission, we can surmise what the excuses might be:
- Lack of agreement on performance metrics;
- The difficulty of capturing information from physician practices that do not use health IT;
- Uncertainty on how to share information with the public that is accessible and actionable;
- Maybe even political resistance from some physician groups.
As a separate, but related matter, HHS has for many years refused to publicly disclose any identifiable information regarding physicians who participate in the Medicare program. Citing the need to protect the privacy of such physicians, HHS has rebuffed a number of requests for specific information to be made available for things as innocuous as physician directories.
These competing policies -- making health care information transparent and keeping physician information private -- have not run into each other in a substantial way ... until now. On Aug. 22, the United States District Court for the District of Columbia invoked the question when it handed down its decision in
Consumers' Checkbook v. HHS.
Consumers' Checkbook is a not-for-profit consumer education and information organization. In March 2006, Consumers' Checkbook submitted to CMS a request under the Freedom of Information Act seeking records of Medicare claims by physicians in 2004. No patient information was requested. CMS refused the initial request. After some procedural back and forth, Consumers' Checkbook sued HHS, asking the court to require the disclosure of the information.
In the course of the proceeding, HHS took the position that the physician claims information was protected from disclosure under an FOIA exemption prohibiting disclosures that would "constitute a clearly unwarranted invasion of personal privacy."
The court, however, stated, "The public interest at stake is the interest in obtaining information that would help the public make more informed Medicare decisions and the interest in more information on how government funds are spent. [Consumers' Checkbook] seeks the Medicare records to facilitate useful quali[t]y studies regarding the services provided by Medicare physicians."
In its well-reasoned opinion, the District Court noted that it had to "balance the individual's interest in privacy against the public interest in disclosure, keeping at the forefront the FOIA's 'basic policy of opening agency action to the light of public scrutiny.'"
The court concluded that Consumers' Checkbook is "looking for data to assist in the performance evaluation of Medicare providers, and the interests [it] seek[s] to meet require that the data include physician-identifying information. Moreover, the physician data also only involved information related to the physicians' participation in and compensation from a government program and thus only implicates very limited privacy interests. ... Therefore, the court concludes that disclosure of the physician information is not 'clearly unwarranted' in light of the important public interests at stake." HHS was directed to provide Consumers' Checkbook with all the requested records by no later than Sept. 21, 2007.
This is big stuff. If the District Court's decision holds, a tidal wave of data will become available for analysis and allow patients, their families and others to enjoy the kind of transparency that Leavitt has been urging.
But -- and this is a big "but" -- will HHS appeal the District Court's decision? Will HHS opt to accept the court's decision in the service of transparency? Or, will HHS decide that protecting physicians' Medicare claims data is more important than privacy?
Looks to me like Leavitt is in a "damned if you do, damned if you don't" situation. To be fair, the decision of whether to appeal
Consumers' Checkbook vs. HHS does not lie exclusively with the HHS secretary. Conceivably, the Department of Justice, the Solicitor General, the Office of Management and Budget, the President's Domestic Policy Council and even the president himself could wade into the decision process.
In my mind, Leavitt has the most influence in the administration's decision on whether to appeal. It is his department in the center of the controversy. It is his policy initiative that can be advanced or stymied by the consequence of the decision to appeal. I expect Leavitt and the administration will feel enormous pressure from some in the physician community to appeal the District Court's decision. Other providers have opposed transparency only to ultimately later recognize that the public and purchasers want to know more about how providers compare. As I said earlier, opposition to making Medicare claims data available (as limited as that data may be for comparison purposes) is a position that, ultimately, cannot be sustained.
By having the government accept the decision of the court and thus allowing the Medicare physician claims data to be made public, Leavitt can choose to allow that data to be used so that we can all come to understand physician practice patterns, experience and other meaningful information. By so doing, Leavitt can make a reality of his objective that:
"Every American should have access to a full range of information about the quality and cost of their health care options."