Must HHS release physician-specific Medicare data to public?

Oral arguments before the US Court of Appeals, DC Circuit, began in October in a case that pits consumer advocates seeking raw Medicare claims data not currently available against the US Department of Health and Human Services (HHS), which refuses to release the data on the grounds that doing so would infringe on physicians' privacy rights. Seventeen physician groups, including ACOG, support the government's position and have filed friend-of-the-court briefs.

As reported by ACOS News (10/2008), the case had its genesis in 2006 when Consumers Checkbook, which provides information to help consumers make informed purchase decisions, asked HHS for Medicare claims data to reveal all procedures performed in 2004 on Medicare recipients by physicians in Washington, DC, Maryland, Virginia, Illinois, and Washington state. The organization, which made its request under the Freedom of Information Act, plans to make this information available to the general public, allowing consumers planning to have a major procedure to check "that a physician has an appropriate level of experience." In denying the request, HHS said that producing the documents would violate not only physicians' privacy rights but an existing court order in Florida that prohibits Medicare from releasing data that could be used to identify individual physicians. HHS believes that the data requested by Consumers Checkbook could lead to disclosure of Medicare revenue for individual physicians, when combined with other publicly available data.

Consumers Checkbook responded to HHS's denial by filing a lawsuit in federal district court in Washington, DC, to compel HHS to release the data. In August 2007, the court did just that, finding that the public interest in disclosure was more important than physicians' privacy interests. Now that HHS has appealed this decision, it is up to the appeals court to decide the matter.