Appeals Court Rejects Disclosure Of Medicare Data

By: By RICARDO ALONSO-ZALDIVAR, AP
By: By RICARDO ALONSO-ZALDIVAR, AP

WASHINGTON (AP) - A consumer group seeking Medicare billing records to peek over the shoulders of doctors and grade them on quality said Monday it's not giving up despite a reversal from a federal appeals court.

The case is being closely watched as an important battle in the effort to reshape the nation's health care system. Consumer advocates, employers and insurers argue that access to Medicare claims filed by doctors' offices could help independent groups monitor quality and ferret out waste. Patients would not be identified.

But doctors are worried that such disclosures would violate their privacy, and that resulting ratings could portray some physician's offices inaccurately.

The nonprofit Consumers' Checkbook group won a lower court ruling in 2007 that directed the government to release the records under the federal Freedom of Information Act. The federal Health and Human Services department, joined by the American Medical Association, appealed. In a split decision issued late Friday, a three-judge panel of the federal appeals court for Washington, DC, handed the consumer group a defeat.

The judges said freedom-of-information laws are mainly intended to shed light on government operations, not the workings of private businesses.

"The requested data does not serve any (freedom-of-information-related) public interest in disclosure," Circuit Judge Karen LeCraft Henderson wrote for the majority. "Accordingly, we need not balance the nonexistent public interest against every physician's substantial privacy interest in the Medicare payments he receives."

Robert Krughoff, president of the consumer group, said he was "quite surprised" by the judges' reasoning, since health care costs and the quality of medical services are among the most pressing problems facing the government.

"The majority opinion seems to misunderstand how these data would be used," Krughoff said. "It doesn't accurately portray how the data can be used to monitor the quality of health care provided under the Medicare program." Krughoff said his lawyers are taking a "hard look" at an appeal. The group rates a variety of consumer services, from home repair contractors to cell phone providers.

Doctors were pleased with the ruling.

"This is a momentous victory for the privacy rights of physicians," said Dr. Jeremy Lazarus, a Denver psychiatrist and AMA spokesman. Medicare billing records are "basically raw data," he said. For example, added Lazarus, what if one doctor sees sicker patients than another? A simplistic ratings system might tar that doctor as a low-quality provider. But in fact, a doctor who takes the hardest cases may be more highly skilled.

Disclosure advocates say Medicare records would be but one element in a sophisticated analysis. The reason they are invaluable is that no private insurance has the reach of Medicare, which is accepted by virtually all doctors.

Krughoff said the data could be used, for example, to identify surgeons who do only a few cases a year of particularly risky procedures. Research shows that for many operations, patients are better off going to a surgeon who does the procedure frequently.

Billing data could also be used to identify doctors who do a better job of managing patients with chronic illnesses like diabetes and heart failure, keeping them out of the hospital.

Dissenting from the majority ruling, Circuit Judge Judith W. Rogers, concluded that the Freedom of Information Act would allow release of the Medicare records, but other legal issues remained to be worked out.
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(Copyright 2009 by The Associated Press. All Rights Reserved.)

AP-NY-02-02-09 1355EST


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