Now costing more than $500 billion per year, Medicare is central to the United States’ fiscal predicament. For this complicated problem, there are many complicated proposed solutions.
But what if we try something simple, like journalism?
In essence, that is the argument that Dow Jones, publisher of the Wall Street Journal, is pressing in a federal court in Jacksonville, Fla. Dow Jones is asking District Judge Marcia Morales Howard to lift a 1979 court order that exempted from the Freedom of Information Act all provider-specific data on Medicare payments. Arguments ended in August, and a ruling could come at any time.
Thanks to the 33-year-old injunction, the press and the public cannot examine the treatments individual physicians billed to Medicare or —most important — how much Medicare paid for them. Yet this is a matter of obvious public concern, given that Medicare made $28.8 billion in improper payments in 2011, according to a Government Accountability Office report last February.
Media coverage could be a powerful weapon against waste, fraud and abuse, Dow Jones argues — plausibly, given the Journal’s recent work.
In 2009, Dow Jones and the nonprofit Center for Public Integrity sued the Department of Health and Human Services for access to its database of physician fee-for-service claims. HHS resisted but ultimately agreed to supply a small portion of its information in return for a fee and a promise not to reveal individual physicians’ names.
Even with those limitations, the Journal produced articles in 2010 and 2011 documenting many millions of dollars’ worth of excessive spinal fusion surgery, questionable prostate-cancer treatments and dubious billing for home health care services.
More irregularities might turn up if all journalists could comb through Medicare’s records using data-mining techniques. And imagine how many irregularities would be deterred if providers knew that they might be named and shamed.
Doctors, of course, see a threat to privacy — theirs, not patients’, since patients would not be identified no matter how a lawsuit turns out. “Privately employed individuals have a substantial interest in the privacy of their personal financial information, including their income," the American Medical Association argued in its brief to the court.
The doctors warn of “deleterious effects on the physician-patient relationship." One physician affidavit avers that “it would undermine my ability to care for my patients if they think that I might be prescribing" a particular therapy “for the money rather than for their well-being." Public disclosure of Medicare billing would increase such purported misconceptions, because non-experts can’t interpret the data accurately, the doctors claim.
How paternalistic can you get? Information about doctors’ incentives might in fact empower health-care consumers, as it generally does in other markets. Surely patients who got some of the 276 spinal fusions performed by a single Midwestern surgeon in 2008 would have wanted to know, as the Journal reported, that the doctor received more than $400,000 in payments from spine-device makers.
Privacy was the doctors’ argument in 1979, when they first sought, and won, a permanent injunction to stop a Carter administration plan to disclose Medicare reimbursement data.
Though issued by a single Florida district court, the injunction applied nationwide and can be lifted only if the court that imposed it finds, in essence, that times have changed.
They have: Medicare cost a mere $37.4 billion in 1980. For that reason alone, the nation’s interest in cost control today far outweighs doctors’ interest in billing secrecy. Sens. Charles Grassley, R-Iowa, and Oregon’s Ron Wyden agree and have introduced legislation to overturn the injunction, though their bill is moving slower than the Dow Jones lawsuit.
In a way, it’s too bad that Dow Jones framed its case as a matter of fighting fraud. It is indeed that. But the vast majority of providers are honest.
Still, doctors’ resistance to disclosure illuminates the mentality bred by a system of open-ended public financing on the one hand and private provision of fee-for-service care on the other.