Courts: HHS must release data

In a recent federal court decision that went quietly under the radar but further opened the door for healthcare cost transparency, a U.S. district judge ruled to vacate a 33-year-old injunction that prevented the release of Medicare claims data.
The ruling was hailed as a victory for Dow Jones & Company, publisher of The Wall Street Journal, which filed suit in 2011 when it was denied access to the data for a Medicare fraud story. It's considered a loss for the American Medical Association, the group behind the original injunction.
"The Medicare system is funded by taxpayers, and yet taxpayers are blocked from seeing how their money is spent," said then-WSJ Editor Robert Thompson of the lawsuit. "It is in the interest of law-abiding practitioners that those who are gaming the system are exposed."
"The Privacy Act law, upon which the Court's 1979 FMA Injunction is based, is 'no longer good law,'" wrote Marcia Morales Howard, U.S. District judge presiding over the case.
The original 1979 ruling stemmed from when the U.S. Dept. of Health, Education and Welfare, the agency responsible for administering Medicare, released data on physician reimbursement claims, identifying each physician.
After the data was released, it was found to contain several inaccuracies, and as a result, Florida Medical Association together with a group of physicians filed suit calling on the agency to permanently seal the claims data.
Now, in theory, at least, HHS can no longer sit on the data.
The implications of the ruling are huge for myriad reasons, says Jonathan Bush, chief executive officer of athenahealth, one among them being the marketplace effect.
"Ideally, transparency of claims data should have a leveling effect on the market," he said – if the data is actually released. "If people can see what they'd be charged for the same procedure at five different venues, shouldn't that increase competition and bring cost to the patient down?"
He continued, "More importantly, data transparency leads to more insightful innovation so better, smarter products can be delivered to the marketplace."
In terms of how long it will actually take the federal government to release the data, however, Bush remains skeptical considering the "dribbling" pace at which HHS has published it.
In his view, what the healthcare industry currently lacks is the ability to shop. And without information, a consumer is going to be hard-pressed to find the lowest price without compromising quality.
"There's a lot of information sitting under government lock and key," he said.
Say that, miraculously, all the claims data was liberated in its entirety tomorrow. What does this mean for companies like athenahealth? Or hospitals and patients for that matter?
It generates a whole lot of power, says Bush: Knowledge is power, and information can catalyze knowledge.
But now it's a matter of making the data actionable, organizing it and churning it into insight.
"Of course at first blush a whole ton of data doesn't tell anyone very much," said Bush. "Once the data gets sorted so as to be useful, it will be tremendously powerful."
Right now, he added, the talk of the healthcare town pertains to care coordination and cost reductions, which, of course, require information.
But data limitations are going to hinder the potential to see some serious changes, Bush explained. Currently, under ACO and other shared savings models the folks doing the coordinating only get access to very specific, very narrow sets of data – the data pertaining to their own assigned patients. "That is useful, but it only gets you so far," says Bush.
"Think of it this way: you know if you send patient A to doctor C instead of doctor B, you might save some dollars. But if you cannot see the pricing for doctor D, because doctor D is outside of your network, then you have no idea if you are achieving the most savings possible or just nibbling around the edges."
Athenahealth is one company that can do wonders with the data, Bush opines, citing their national cloud-based network with more than 40 million patients on it already.
"We have a huge head-start over a lot of others in terms of our ability to sort and analyze this kind of data."
So, if data equates to knowledge and knowledge equates to power, and data yields the ability to drastically cut costs and improve care unlike what the industry has ever seen, why does HHS continue sitting on the data, doling it out in piecemeal and clenching the rest in its fist with no sign of letting go? Two words, says Bush: "bureaucratic inertia.
He explained, "That injunction that has been an excuse for data lock for decades is older than most of my buddies going through mid-life crises right now. The concerns that led (AMA) to seek that injunction back when I was in diapers just do not apply to today's world."
The AMA, however, continues to disagree and has indicated it may take further action following the court ruling.
"Medicine has stood its ground during the last 34 years to defend an injunction that favored individual rights and protected innocent physicians from becoming targets of suspicion," said Ardis Dee Hoven, MD, AMA president, in a statement on the ruling. "The American Medical Association is considering its options on how best to continue to defend the personal privacy interests of all physicians."