Appeals court rejects effort to sell Medicare physician claims data
■ The AMA had joined the federal government in appealing an earlier decision ordering release of data in four states for an Alabama firm's marketing purposes.
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Washington -- A federal appeals court cited an injunctive order from three decades ago when it said a private company does not have a right to sell physicians' Medicare claims data to hospitals. The decision is the latest in a series of court actions protecting doctors' privacy against the release of such information for various purposes.
In a ruling on Dec. 18, 2009, the 11th U.S. Circuit Court of Appeals said the government was not required to turn over physician claims information to Real Time Medical Data. The firm, based in Birmingham, Ala., was incorporated in 2002 to provide hospitals, doctors' offices and other health care entities access to Medicare marketing data. At issue was whether the U.S. Dept. of Health and Human Services was obligated, under the Freedom of Information Act, to provide Medicare data to the company, including doctors' names, addresses and the types of procedures they performed.
Judge Edward E. Carnes, who authored the unanimous opinion for the three-judge panel, cited a decision from a related 1979 case, Florida Medical Assn. v. Dept. of Health Education & Welfare, in ruling that HHS did not have to provide the data to RTMD and Jennifer D. Alley, a partner with the firm. "Even if history does not repeat itself, events do sometimes rhyme. ... While its meter might not match our own, that decades-old decision and the injunction issued control the closing couplet of this case," Carnes wrote.
Carnes said the 1979 injunction applies in this case only to the records of physicians licensed to practice in Florida, as well as to American Medical Association members in Florida, Georgia, Mississippi and Tennessee, the four states covered by the Alley lawsuit. Carnes said it is possible that records of non-AMA members in the three states besides Florida are "reasonably segregable" from the records covered by the injunction -- and, therefore, could be disclosed. The appeals court did not issue a ruling on that point. HHS, however, has cited the 1979 order in refusing to release any individual physician's records in any state.
Alley had sought the information to sell to clients for marketing and strategic purposes, including physician recruitment.
"The company wanted to use the data to help hospitals determine where and how to allocate resources," said Vic Hayslip, an attorney from the firm Burr & Forman in Birmingham, which represented Alley. Such information might help hospitals in physician hiring and placement decisions, and in equipment purchases, he explained.
Alley initially received a favorable ruling. The Northern District Court of Alabama in 2008 issued a permanent injunction ordering HHS to release Medicare claims data for Florida, Georgia, Mississippi and Tennessee. It also enjoined the department from refusing any future FOIA requests from Alley for the same type of data. The Justice Dept., with the AMA as an intervener, appealed the district court's ruling.
A physician privacy win
The AMA hailed the appeals court ruling as a victory for physicians' privacy rights.
"This decision vindicates the AMA's position that physicians have a right to privacy as it applies to their personal financial data," said Jeremy A. Lazarus, MD, a psychiatrist from Denver and speaker of the AMA House of Delegates. "The appeals judge in this case upheld the 1979 court ruling obtained by the AMA and the Florida Medical Assn. that protects all AMA members from efforts to obtain individual physician reimbursements from Medicare. AMA continues to vigorously defend physicians' right to privacy through the courts."
Although Alley did not seek payment data, she was demanding CPT codes for each medical service and procedure for which Medicare had paid a claim, as well as the providing physician's name and address.
That information would have caused the government to go against the ruling in the 1979 case and violate physician privacy, Carnes stated. "While Alley is not requesting annual or even monthly reimbursement totals, the data that she is requesting can readily be used to calculate those totals," he wrote. "Disclosure of that data would put HHS in jeopardy of being held in contempt."
Carnes said the district court interpreted the 1979 injunction too narrowly in this case. That order prevented the Dept. of Health, Education and Welfare -- the precursor to HHS -- from releasing a list of annual Medicare payment amounts to individual doctors.
The judge went on to suggest that Alley should have attempted to modify or vacate the original court order rather than using a FOIA request to circumvent it. "A direct attack, instead of a collateral one, is the proper procedure."
Hayslip said his client is weighing her options but "intends to still vigorously pursue the production of the data."
A Justice Dept. spokesman said the government did not have a comment on the appeals court ruling because the case is ongoing.
A similar ruling in a similar case
The case is similar to that of Consumers' Checkbook/Center for the Study of Services v. HHS, which involved a consumer group that also sought Medicare physician claims data under a freedom of information request. In that case, the requesting firm wanted the data not for marketing purposes but to provide health care consumers with reports on physicians' levels of experience with particular medical procedures.
A Jan. 30, 2009, ruling by a federal appeals court in that case reversed an earlier district court ruling and prevented the release of the data to Checkbook/CSS. The decision also prevented the publication of the free public resource the organization had planned to produce using the information.
Physician organizations argued that raw claims data were not meant to be employed in the manner that either RTMD or Checkbook/CSS have attempted.
"Using Medicare claims data in a way for which it was never intended provides a real disservice to patients," said K. Edward Shanbacker, the Medical Society of the District of Columbia's executive vice president. "It is very gratifying to see that the courts have seen this -- not only in this [Alley] case but in previous rulings as well. For private companies to repackage the data and represent that it somehow relates to quality or safety or physician expertise is ludicrous on its face."