On January 17, the Department of Health and Human Services (“HHS”) published notice of a new policy regarding requests made under the Freedom of Information Act (“FOIA”) for information on amounts paid to individual physicians under the Medicare program. Under the new policy, CMS will make case-by-case determinations as to whether Exemption 6 of FOIA “applies to a given request for information pertaining to the amounts that were paid to individual physicians under Medicare.” Exemption 6 requires CMS to weigh the balance between the privacy interest of individual physicians and the public interest in disclosure of such information when deciding whether to produce information in response to a FOIA request. CMS has not yet provided information on what factors will be considered in their determination, stating that the outcome will depend on the “circumstances” and “facts of each case.” The policy emphasizes that “in all cases, [CMS is] committed to protecting the privacy of Medicare beneficiaries.”
HHS’s previous policy, adopted in 1980, stated that “the public interest in the individually identified payment amounts is not sufficient to compel disclosure in view of the privacy interests of the physicians.” This policy was published in response to a permanent injunction issued by a Florida District Court in 1979 that prohibited the Department of Health, Education, and Welfare (the predecessor to HHS) from publicly disclosing annual Medicare payments made to individual physicians or in a manner that could identify individual physicians. The injunction was vacated by the US Court of Appeals for the Eleventh Circuit in May 2013, weakening the foundation upon which HHS’ longstanding policy was established.
CMS called for comments on the potential release of Medicare compensation made to individual physicians in August 2013. Over 300 organizations and individuals submitted comments, which can be found here. Notice of the updated policy, published in the Federal Registry, can be found here.