Statement of the Department of Health and Human Services Regarding Appeal of Consumers Checkbook Decision

Consumers should have access to a health care marketplace that provides information on the quality and cost of health care – such transparency empowers them to make better health care choices.  As a provider of health insurance to more than 44 million Americans, the Medicare program is a considerable resource for such information.  In fact, broader use and release of Medicare data holds the potential not only to transform Medicare from a purchaser of services to a purchaser of value, but also to transform the private marketplace as well.  HHS is continually working to ensure the availability of information from Medicare through such means as expanding Medicare’s Compare Web sites, collaborating with organizations outside of the Department, and proposing legislative changes to expand HHS’ authority to use and release this data. 

The Department of Justice, on behalf of HHS, today submitted an appeal in the case of Consumers Checkbook, Center for the Study of Services v. U.S. Department of Health and Human Services.  In 2006, the Consumers Checkbook organization sought raw Medicare claims data under the Freedom of Information Act (FOIA) that would reveal all procedures performed by physicians who treat Medicare beneficiaries in Washington, D.C., Maryland, Virginia, Illinois and Washington during 2004.  HHS denied this request, based on existing law, and Consumer Checkbook brought suit.  In August 2007, a federal court in the District of Columbia ordered HHS to release the data. 

HHS is appealing this decision because of two conflicting court opinions that control HHS’ release of data.  Release of certain Medicare claims data is currently governed, in part, under an existing order issued by a federal court in Florida in 1979.  That order, which is still in effect, prohibits Medicare from releasing physician reimbursement data in a manner that would enable the user of that data to identify individual physicians.  The court order states that this information is protected by the Privacy Act of 1974.  The data sought by Consumers Checkbook, when combined with other publicly-available data on Medicare fees, could lead to the disclosure of annual Medicare reimbursement amounts for individual physicians.  Release of the data would, therefore, result in a violation of the existing Florida court order.  On the other hand, HHS faces the decision rendered last year by the District of Columbia court ordering the release of the data.  HHS argues in its appeal that the recent decision is based on an erroneous application of the Florida court order and of the Freedom of Information Act’s exemption that protects privacy.  The Department seeks resolution of this conflict from the Court of Appeals.

Beyond the legal issues that must be resolved, HHS recognizes and shares the goals of Consumers Checkbook.  Like Consumers Checkbook, HHS seeks to support consumers and providers with quality performance and cost information for a variety of providers and plans.   For many years, HHS has worked closely with providers and other stakeholders in developing and reporting quality information, including the use of national consensus-based quality performance measures.  While Consumers Checkbook seeks to post the number of times a provider has performed a specific service, the quality measures used by HHS generate more valid, specific, and comprehensive information on the quality of care delivered.

Recent legislation proposed by the Administration to modernize and transform Medicare, as required following the 2007 funding warning, would also support HHS’ efforts to share data.  Under the plan, Medicare spending would be reduced through the application of value-based principles and HHS would have enhanced authority to use and release Medicare claims data for quality improvement, performance measurement, public reporting, and treatment purposes.

Currently, HHS makes significant quality performance and cost information available on its Compare Web sites for hospitals, nursing homes, home health agencies, and other providers as well as Medicare Advantage and Part D prescription drug plans.  Efforts are underway to expand the information available on these Web sites as well.  For example, on March 28, 2008, HHS announced the addition of patient satisfaction measures to the Hospital Compare Web site. 

The availability of this information supports the shared goals of HHS and Consumers Checkbook to help consumers make the best choices for their health care.  It can likewise help providers themselves in continually improving the care they deliver.  HHS encourages Consumers Checkbook and all consumers, providers, health plans, employers, and other stakeholders to use and direct others to this information on the Medicare Web site (http://www.medicare.gov/).

HHS continues to explore additional opportunities to ensure that Medicare data is available to support consumer and provider decision-making as well as the efforts of other stakeholders, while ensuring the privacy and security of individually-identifiable information as required by law. 

Additional information on the following subjects can be found online: 

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