A long-running dispute about access to Medicare claims data could be resolved by bills pending in the Senate. Proponents assert the measures could combat fraud and abuse in one of the federal government's most expensive programs and might also help improve health outcomes and consumer decision making.

Medicare is expected to spend $562 billion in fiscal year 2011, according to Congressional Budget Office (CBO) projections. Most estimates of waste, fraud, and abuse in Medicare range from $30 billion to $60 billion. By comparison, the entire budget for the Department of Homeland Security in FY 2011 is $42 billion. Moreover, Medicare expenses are anticipated to grow an average of 5.6 percent annually over the next decade.

History

In 1977, the U.S. Department of Health, Education, and Welfare – now the Department of Health and Human Services (HHS) – announced plans to release data on reimbursements paid to all providers of Medicare services. The Florida Medical Association and a group of Medicare providers sued to prevent the department from releasing the data and in 1979 persuaded the U.S. District Court for the Middle District of Florida to enjoin the department from doing so. The court ruled that releasing the information would have invaded the doctors' privacy.

In 2007, the U.S. District Court for the District of Columbia required HHS to release similar information. However, the U.S. Court of Appeals for the DC Circuit overturned the ruling, and the U.S. Supreme Court declined to review the case.

Almost all attempts to access the data through Freedom of Information Act (FOIA) requests have failed. However, in 2010, the Center for Public Integrity (CPI) and the Wall Street Journal settled a FOIA request for the data. As part of the settlement, the Journal and CPI received a randomly selected five percent of the data, on the condition that they not disclose the identities of the Medicare providers involved. The Journal used the information as the basis for a series of articles investigating potential fraud in Medicare payments. In January, the Journal filed a motion to intervene in the original 1979 case, asking the district court to drop the injunction and permit fuller information to be released.

The Patient Protection and Affordable Care Act, which was signed into law March 2010, included a provision (Sec. 10332) that requires HHS to make some of the data available to certain users for performance reporting beginning in 2012. However, the provision placed conditions on the release and restricted the data from being used against a Medicare provider in court or administrative proceedings.

Bills in Congress

In March, Sen. Chuck Grassley (R-IA) introduced the Strengthening Program Integrity and Accountability in Health Care Act. One provision of the bill would require HHS to make Medicare payment data available online. Grassley noted that USAspending.gov "lists almost all Federal spending, but it doesn't include Medicare payments made to physicians. That means virtually every other government program, including even some defense spending, is more transparent" than Medicare.

In April, Grassley and Sen. Ron Wyden (D-OR) introduced the Medicare Data Access for Transparency and Accountability Act, which expands on the provision in the earlier Grassley bill. The Medicare DATA Act specifies that the database must be searchable and free to the public. In addition, the bill clarifies that releasing the information does not qualify as an invasion of privacy.

Subsequently, Sens. Dick Durbin (D-IL) and John Cornyn (R-TX) introduced bills that would make the data available in a more limited fashion. Durbin's S. 856 would make summary data available to the public online and allow certain users to access the complete data with certain conditions. Cornyn's S. 848 would allow access for researchers, states, and certain other users, from whom the public would be allowed to request reports based on the data, with certain conditions.

All four bills have been referred to the Senate Committee on Finance, of which both Grassley and Wyden are members. None of the bills has been scheduled for mark-up.

Administration’s Release of Health Data

The Obama administration has also taken a number of steps to reduce fraud and to make health care data, including Medicare data, more accessible.

• In April 2010, HHS launched Data.Medicare.Gov.
• The same month, HHS released its Open Government Plan, which included a number of initiatives to open data to the public.
• In February, HHS launched Health.Data.gov.
• Also in February, the HHS inspector general launched a list of most-wanted health care fraudsters.
• In April, HHS launched a new tool to compare data on patient quality between hospitals.