In what is being touted as an unprecedented attempt at transparency, Medicare released millions of physician reimbursement records on April 9, 2014.  According to the Center for Medicare and Medicaid Services (“CMS”), the data has been released “as part of the Obama Administration’s efforts to make our healthcare system more transparent, affordable, and accountable.”  The data includes over nine million rows of data on more than 880,000 physicians and other healthcare professionals in all 50 states, the District of Columbia, and Puerto Rico providing care to Medicare Part B beneficiaries in calendar year 2012.  The payment data catalogs almost $80 billion of federal funds.

The potential effects of this release are wide-ranging, and many in the industry believe that it will fuel an increase in claims made by members of the public under the False Claims Act.  The data may result in increased pressure on DOJ, OIG, and CMS to scrutinize high-billing doctors more closely, now that this information is public.  Major news outlets are already running follow-up stories on the providers who received the highest amount of Medicare payments.

The American Medical Association (“AMA”) is concerned that the data will be misused, and strongly advised against its mass publication.  Once it became clear that the information was to become public, the organization published a list of 9 ways in which the claims data could mislead patients or reporters.  These concerns were echoed in a statement released by the President of the AMA:  “We believe that the broad data dump today by CMS has significant short-comings regarding the accuracy and value of the medical services rendered by physicians.  Releasing the data without context will likely lead to inaccuracies, misinterpretations, false conclusions and other unintended consequences.”

The data could also help whistleblower employees, such as nurses, physician assistants, or coders, who suspect that their employer is billing improperly, but do not have access to records necessary to sufficiently plead an FCA suit.  While CMS has only published Medicare data thus far, state attorneys generals could investigate whether a provider who billed out-of-the-ordinary amounts to Medicare did the same with Medicaid.  Private insurers may very well adopt a similar practice when scrutinizing their own payment to providers.

HHS’s previous policy regarding physician payment records was that the public interest in the data was not sufficient to outweigh the privacy interests of the physicians.  The injunction to which this policy was tied was vacated by the Eleventh Circuit in May of 2013, weakening the foundation upon which HHS’ longstanding policy was established.  In mid-January, 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.  The public record demands then started pouring in, triggering an FOIA provision mandating easy access to frequently requested records.  In response, regulators decided to post the entire data set online.

The data is available on the CMS website, here.

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