Guest post by Michele Grinberg, my colleague in the Health Care Practice Group at Flaherty, Sensabaugh Bonasso PLLC.
Through indirection find direction out? With apologies to William Shakespeare, the U.S. Court of Appeals for the11th Circuit and D.C. circuit say: NO, not this time.
In Jennifer D. Alley, Real Time Medical Data, LLC v. U.S. Dept. of Health and Human Services, issued Dec. 18, 2009, the Court held that plaintiffs Alley & Real Time Data cannot obtain certain Medicare data for procedures performed in Florida, Georgia, Mississippi and Tennessee by AMA physicians and for all Florida physicians (the certified class). Specifically, Medicare Part B raw claims data that could easily be matched to a particular physician and then aggregated to calculate the total annual Medicare payment by physician cannot be disclosed to Alley. Alley had sought the information through filing a federal Freedom of Information Request (FOIA).
The reason? Because the Florida District Court in 1979 issued a permanent injunction in Florida Medical Assn. v. Dept. of Health Education & Welfare, prohibiting DHHS (then HEW) from disclosing “any list of annual Medicare reimbursements…for any years, which would personally and individually identify those providers of services …. Any such disclosure of annual Medicare reimbursement amounts, for any years, in a manner that would personally and individually identify the providers….is contrary to federal law.” (quoted in Alley)
Judge Carnes in a well-authored opinion (for those of you, like me, who care about good writing) enjoys the irony of hearing argument that sounds much like the health policy arguments heard in the mid-1970s. His second sentence reads: “The present national debate over health care rhymes a lot with one that took place three decades ago.” But whether it’s still good policy or not, Judge Carnes holds that plaintiffs cannot collaterally attack the 1979 injunction by arguing it does not apply to the data sought or the context has shifted in favor of disclosure or the reimbursement methodology has changed. Rather, if plaintiffs believe the injunction is no longer valid, their recourse is to go back to the court where the injunction issued and challenge it there.
In a footnote, the 11th Circuit references a recent 2009, United States of Court of Appeals D.C. Circuit, decision: Consumers’ Checkbook, Center For Study of Services. v. U.S. Department of Health and Human Services. The lower court’s holding in this case was discussed in this blog in 2008 (Consumers’ Checkbook v HHS Update). In the 11th Circuit footnote (No.9), the court observes that in a factually similar case, the D.C. Circuit has held that FOIA exemption 6 permits DHHS to not disclose the requested Medicare data. FOIA exemption 6 protects from disclosure government agency files that constitute “a clearly unwarranted invasion of personal privacy.”
What we have then are two cases: one that upholds a 1979 injunction which enjoins DHHS from providing Medicare data that can be manipulated to identify annual reimbursements to individual physicians and other providers but which injunction reaches only the certified class of providers (identified above); and a second case that holds that providing similar Medicare data that can be tied to individual providers is protected from disclosure by a FOIA exemption. Thus, data elements which might indirectly seem disclosable are not if they lead to a resulting disclosure which invades personal privacy. We will see what changes health insurance reform brings, if any.
The AMA provides additional analysis of the decision in a story posted January 11, 2010, Appeals court rejects effort to sell Medicare physician claims data. Also, Law.com reports on the decision in its article, Mark Twain Lives On in Federal Judge’s Ruling on Release of Medicare Data.