Medicare’s new transparency rule triggers privacy concerns

In an attempt to be more open with the public, the Centers for Medicare and Medicaid Services (CMS) may have allowed insurance companies, watchdogs, and competitors to access data on individual physicians' reimbursements. Amid concerns that the data can be presented completely out of context, will this new policy portray solo practitioners in an unfair light?

Due to a policy change that CMS announced in January, it will be easier for insurance companies, patients, and watchdogs to get payment information about individual physicians. According to a post on CMS’ blog, the agency will start evaluating requests for physician pay information in the same way as other Freedom of Information Act (FOIA) requests. CMS will also begin creating and publishing data sets of physician pay and services.

Reid Blackwelder, MD, FAAFP, president of the American Academy of Family Physicians (AAFP), says he worries that the data will be used without proper context and give a distorted view of how much money physicians make.

“It is a limited data base on payments to physicians for only one payer. Again, the context of that data is critical to allow for proper interpretation of Medicare as part of the physicians revenue. Regardless, this data does not really relate to the actual overall pay of any physician, especially as it does not include a physician’s expenses, overall demographic data, and so on,” Blackwelder says.

CMS says the move is in response to more than 130 comments from more than 300 organizations about making payment data available.

“Given the advantages of releasing information on Medicare payment to physicians and the agency’s commitment to data transparency, we believe replacing the prior policy with a new policy in which CMS will make case-by-case determinations is the best next step for the agency,” said Jonathan Blum, CMS principal deputy administrator  in the blog post announcing the change.

But will making payment information for individual physicians available mislead the public and cause privacy issues for physicians?

“The disclosure of payment data from government health care programs must be balanced against the confidentiality and personal privacy interests of physicians and patients who may be unfairly impacted by disclosures,” says Ardis Dee Hoven, MD, president of the American Medical Association (AMA). “The unfettered release of raw data will result in inaccurate and misleading information. Because of this, the AMA strongly urges HHS (the U.S. Department of Health and Human Services) to ensure that physician payment information is released only for efforts aimed at improving the quality of healthcare services and with appropriate safeguards.”

Payment data released on ‘case-by-case’ basis
Because the policy must undergo a 60-day review process before being published in the 2014 Federal Register, how the requests will be made and processed is yet to be determined.

Blum mentioned physician privacy issues in the post, ensuring that each request for information would be evaluated on a “case-by-case basis.

“As CMS makes a determination about how and when to disclose any information on a physician’s Medicare payment, we intend to consider the importance of protecting physicians’ privacy and ensuring the accuracy of any data released as well as appropriate protections to limit potential misuse of the information,” Blum wrote.

Shari Erickson, MPH, vice president of governmental and regulatory affairs for the American College of Physicians, says the organization will be recommending that CMS establish a review process so that physicians can know if information about them is requested and can review those requests.

“There has to be an appropriate limitation of data. And physicians should be able to review any data before it is published, and any issues concerns should be noted. There should be a lot of safeguards, and we will be advocating for these with CMS,” Erickson says.
However, Judith A. Waltz, partner with Foley & Lardner LLP in San Francisco, California, says physicians should assume that CMS’ new stance on transparency means that it is unlikely information requests will be denied. CMS’ recent steps towards increasing public transparency include releasing information about the 100 most common inpatient services in May 2013 and average charges for the top 30 outpatient procedures in June 2013.

“In appropriate cases, an agency may give a party whose information is being requested for release a chance to file an objection to the release of information prior to its being released,” Waltz says. “If this opportunity is provided, the party whose information is requested must be able to establish why the requested information fits into an exemption or is otherwise not appropriate for release.”

Health plans, watchdogs-and competitors?
The startup of the Affordable Care Act has brought about swift changes in how insurance companies determine their patient panels. For example, UnitedHealthcare is aiming to narrow its Medicare Advantage network by 15% by the end of 2014, and has already attempted to cut 2,250 physicians from its networks in Connecticut alone. Because it isn’t clear to physicians why these cuts are being made, some fear that CMS data on individual physicians could become additional fodder for insurance companies looking to narrow their networks.

Blackwelder says that the AAFP has expressed concern about the “well-documented history of private insurers misusing claims data to profile physicians, deny them reasonable reimbursement, or subject patients to higher out-of-pocket costs.” He  hopes CMS will release the data to improve quality measures and assist with clinical research.

“If used correctly, this data can provide accurate and meaningful information to patients, physicians, and other stakeholders that can improve quality at the point of care. However, data is just data, and requires appropriate context and interpretation,” Blackwelder says.

There is also the possibility that information about physicians could be requested by competitors, malpractice lawyers, or employers to determine the value of a practices, assets, future income, and experience, Waltz says. It is unlikely that patients themselves will file requests for information, but Waltz expects that patient advocacy groups, journalists and other whistleblowers will have the ability to file multiple requests at once to present information to the public.

“Since CMS is going to make individual determinations as to whether to release the information, it seems likely that legal issues going forward will include allegations that CMS has made a wrong call in response to a FOIA request in releasing the information, or that use of the information obtained is somehow improper by whomever is trying to use it,” Waltz says.

Meaningful transparency
A convergence of government agencies aiming to be more transparent, along with more access to physicians through social media and the web ultimately means that physicians will have less privacy from now on.

In some cases, transparency can be helpful to physicians, Erickson says, citing the trend among practices to have upfront pricing for services. According to a 2013 survey by Mass Insight Survey Research Group, 89% of Massachusetts patients want to know medical costs upfront and more than 70% want “useful information” about out-of-pocket costs. Erickson says this works because physicians have more control over how the data is presented, and it makes a difference to patients.

“It all depends on how well shared and usefully displayed the information is,” Erickson says. “There’s a lot of data that is not usable or if it is used by patients, it’s not presented in a meaningful way.”

Hopefully, information on individual physicians’ reimbursement from Medicare won’t be used to paint a broader picture that implies that physicians are somehow milking the healthcare system, Blackwelder says.

“Medicare payment alone does not capture or convey other expenses, including a physician’s student loan debt from attending medical school, office rents, malpractice insurance, staff salaries, and energy bills,” he says. “Margins are often very thin, and looking at income only does not portray the complete picture, especially from only one payer. And it leaves out expenses, the critical second half of the equation.”

Physicians shouldn’t fear that the new policy will change the way their patients view them, Blackwelder says, overall all they want is better care.

“Ultimately, we must ensure that all such policies are part of improving the quality of care patients receive,” Blackwelder says. “We should all be focusing on ensuring that patients get the right care, from the right person in the right place at the right time. If we do this, patients will likely not care too much about this policy.”