On January 15, 2014, the U.S. Department of Health and Human Services (HHS) Centers for Medicare and Medicaid Services (CMS) announced a new policy that would allow CMS to disclose information regarding Medicare reimbursement data for individual physicians in response to Freedom of Information Act (FOIA) requests.

The new policy replaces a 1980 policy (45 Fed. Reg. 79172) that – in considering the competing interests of public transparency and privacy and in compliance with a permanent injunction issued in federal court – the public interest in disclosure of physician reimbursement data was not sufficient to compel disclosure of the data under a FOIA request. 

However, a recent court decision vacating the 1979 injunction coupled with HHS’s statedcommitment to transparency prompted the policy change announced today.  Under the new policy, CMS will use a balancing test to make case-by-case determinations whether to disclose individual physician payment information in response to FOIA requests.  In addition, CMS noted that it will also generate and make publically available aggregate data sets regarding Medicare physician services.

Today, CMS Principal Deputy Administrator Jonathan Blum blogged that CMS “intend[s] to consider the importance of protecting physicians’ privacy and ensuring the accuracy of any data released as well as appropriate protections to limit potential misuse of the information.  And as always, we [CMS] are committed to protecting the privacy of Medicare beneficiaries.” Mr. Blum also outlined the public comments received by stakeholders regarding the policy change, including potential to use of the data to collaborate on improved care management; gain broader, more reliable quality measures; and identify waste, fraud, abuse, and unsafe practices.

The new policy is set to take effect 60 days after publication of the Notice in the Federal Register.