Medicare Data Fight Continues

The Health and Human Services Department on Dec. 5 issued a final rule that for the first time opens up its massive, decades-old database of Medicare claims to the public, under certain conditions. But to some audiences the rule was notable for what it did not address.

As called for by the Affordable Care Act, the rule from the Centers for Medicare and Medicaid Services "gives qualified organizations, like employers and consumer groups, access to data that can help them identify high-quality health care providers or create online tools to help consumers make educated health care choices," an HHS statement said. "Information that could identify specific patients, however, will not be publicly released and strong penalties will be in place for any misuse of data."

Wall Street Journal reporter John Carreyrou, however, reported the rule as "an abrupt policy change" and pointed out that it mentions nothing about the lawsuit filed by his newspaper's parent company last January. Dow Jones and Co. is seeking to overturn a 1979 court ruling sought by the American Medical Association blocking media access to the Medicare database. The Journal has published a series of articles on fraud by individual physicians after obtaining access to only a portion of the database.

Also unaffected is a Senate bill, introduced in April by Ron Wyden, D-Ore., and Chuck Grassley, R-Iowa, that also would overturn the injunction and open the database more widely. "The final rule does not affect the WSJ lawsuit and the Wyden-Grassley bill," said CMS spokeswoman Carolina Fortin-Garcia. "It is a specific program to release Medicare data to `qualified entities' for them to create performance reports on providers and suppliers."

Ashley Huston, a spokeswoman for Dow Jones, told Government Executive: "We are in the process of reviewing the regulations to determine what impact they may have on our action."

A spokeswoman for Grassley said the legislation is "with the FBI and Justice Department for comment. Sen. Wyden called a member meeting with Sen. Grassley a couple of months ago. The outcome was that some members wanted to make sure there was no interference with law enforcement in making the information public."

AMA President Peter W. Carmel, M.D., issued a statement saying the doctors group

"supports the use of accurate physician data when it improves quality of care for patients, but we are concerned that CMS' easing of some requirements for receiving Medicare data could result in the distribution of physician performance reports that are inaccurate and not meaningful for patients or physicians."

So the final rule is not the final story.

This item has been updated to correct the party affiliation of Sen. Ron Wyden.