September 5, 2013 Department of Health and Human Services Centers for Medicare and Medicaid Services Attention: Physician Data Comments [email protected] Hubert H. Humphrey Building, Office 341D-05 200 Independence Avenue, SW Washington, DC 20201 Re: Request for public comments on the potential release of Medicare physician data Dear Sir or Madam: AARP appreciates the opportunity to comment on the potential release of Medicare physician data. Medicare physician data are a critical element in drawing a meaningful picture of physician performance across a clinician’s Medicare practice. The ability of the program to evaluate health care quality and how efficiently health care resources are used, as well as the ability to base payment, contracting decisions, and decision support for patients, rests on the availability of physician data. As Medicare becomes an increasingly proactive purchaser of health care services, its leadership role in moving health care to a value-based system becomes more important. Medicare’s payment policies influence policies in the private sector, as do the measures it selects to base provider payment. In addition, people on Medicare require affordable and high quality services. Full transparency through public release of all relevant data, including physician data, is essential for a vibrant, effective, and competitive marketplace in Medicare. Thus, the program itself, the people it serves, and the public at-large, have a vested interest in understanding how Medicare dollars are used by physicians and other health care providers. In June 2008, AARP joined with other consumer and purchaser groups to file an amicus curiae brief in support of Consumer CheckBook/Center for the Study of Services’ appeal to require the U.S. Department of Health and Human Services to release physician-identified Medicare claims (Amicus Curiae Brief of AARP, et al., filed in Consumers Checkbook Center for Study of Services v. HHS, 554 F.3d 1046 (D.C. Cir. 2009). In this brief, we argued: “Transparency of health care quality and cost information is (also) essential to improving oversight of the federal government’s operations and activities, particularly its use of Medicare funds. As the agency responsible for administering health coverage for 43 million Medicare beneficiaries, HHS has the obligation to 1 assure taxpayers and the public that Medicare spends its funds appropriately and efficiently.” In addition to improved oversight, we also argued that transparency of health care quality and cost information encourages providers and health plans to deliver high quality care; helps consumers make informed decisions about their care; and reduces health care spending. Finally, we argued that failure to release physician claims data undermines CMS’s efforts to pursue value-based purchasing strategies. In our view, these arguments remain just as relevant and timely today as they were in 2008. The recent court decision vacated the injunction the Department of Health and Human Services has relied on since 1979 to withhold public release of individual physician data. The request for comment acknowledges the consequences of not having this information available have become even more dire since the initial injunction. AARP believes the compelling need for public access to physician data far outweighs privacy concerns of physicians. Likewise, we strongly believe the public has a right to know how public funds are used by Medicare participating physicians. Therefore, we urge CMS to act quickly and decisively to release physician-level data. AARP believes it is in the public interest to create a database that is searchable and permits analyses based on geography, condition, procedure, as well as patient or physician characteristics. The data should be fully disaggregated, for example, by individual claims, to conduct measurement of performance at the individual physician level. We recommend CMS develop the database to allow for a wide range of requests of all or parts of the data, and to respond to such requests quickly and inexpensively. Lastly, the need for this information must be balanced with the need to protect beneficiaries’ privacy. Data should be accessible, so long as the independent analysts have the capacity to ensure patient privacy will not in any way be violated, personal health information will remain confidential, and the requester’s analytic methods be fully transparent. AARP thanks you for re-examining data transparency in light of recent legal developments. We look forward to working with you in ensuring beneficiaries and the public have the information they need to make informed care decisions. If you have any questions or comments, please contact Andrew Scholnick of our Government Affairs staff at [email protected] or 202-434-3770. Sincerely, David Certner Legislative Counsel & Legislative Policy Director Government Affairs 2 701 Pennsylvania Ave., NW, Suite 800 Washington, DC 20004·2654 Tel: 202 783 8700 Fax: 202 783 8750 www.AdvaMed.org ~ ~~'::~~~~A,,o;,;,, Submitted electronically via [email protected] September 5, 2013 Marilyn Tavenner, Administrator Centers for Medicare & Medicaid Services Department of Health and Human Services 7500 Security Boulevard Baltimore, MD 21244 RE: CMS Request for Public Comments on the Potential Release of Medicare Physician Data Dear Administrator Tavenner, The Advanced Medical Technology Association (AdvaMed) appreciates the opportunity to respond to the Centers for Medicare & Medicaid Services' (CMS) request for public comments on the potential release of Medicare physician data.' AdvaMed member companies produce the medical devices, diagnostic products and health information systems that are transforming health care through earlier disease detection, less invasive procedures, and more effective treatments. These products and services improve patient care quality. In addition, they often improve efficiency by reducing the lengths of stay, allowing procedures to be performed in less intensive and less costly settings, providing early detection of disease and infections, and improving the ability of providers to monitor care, among other benefits. AdvaMed members range from the largest to the smallest medical technology innovators and companies. While AdvaMed does not take a position on the broader question of the release of physician Medicare reimbursement payments generally, we believe CMS is presented with a unique opportunity to develop and implement an important policy that would protect Medicare beneficiaries when they receive care from physicians who may earn significant financial incentives by participating in an accountable care organization (ACO) under the Medicare Shared Savings Program (MSSP), the Pioneer ACO or Advanced Payment ACO programs, or in bundled payment initiatives. For the reasons discussed below, AdvaMed believes the Secretary of Health and Human Services (HHS) should publicly disclose shared savings or gainsharing amounts earned by physicians in 1 CMS, Request for Public Comments on the Potential Release of Medicare Physician Data, August 6, 201 3, avai !able at http://downloads.cms. gov/fi les/Req uest-for-Pub! ic-Comment-rePhysic ian-Data-8-6-20 13 .pdf. Dl51962v3 Ms. Marilynn Tavenner September 5, 2013 Page 2 of6 ACO programs and bundled payment initiatives. Specifically, we believe CMS should require ACOs (already required under 42 CFR § 425.308) and participants in the bundled payment initiatives to publicly disclose aggregated amounts of shared savings and Gainsharing rewards that the physicians participating in those programs receive. The ACOs and participants in the bundled payment initiatives should also release information about the methodology they use for distributing shared savings and Gainsharing rewards among participating physicians and other practitioners. Furthermore, CMS should publicly disclose, or require that ACOs or bundled payment initiatives publicly disclose, physician-specific information on the shared savings and gainsharing amounts that physicians receive as a result of their participation in the programs. AdvaMed does not take a position on the broader question of whether CMS should disclose personally-identifiable information on the total amount of Medicare payments made to a physician. CMS' request for comments asks for input on three specific questions. We respond to each one in turn below. I. Background In 1979, the United Stated District Court for the Middle District of Florida issued a permanent injunction which broadly prohibited the Secretary from disclosing "any list" of annual Medicare reimbursement amounts, "for any years," if disclosing such information "would personally and individually identify providers of services under the Medicare program who are members of the recertified class."2 On May 31, 2013, the U.S. District Court Middle District of Florida vacated the injunction, "conclude[ing] that vacatur of the 1979 FMA Injunction is appropriate, and 'suitably tailored to the changed circumstance' in this case [internal citation ornitted]."3 With the injunction lifted, HHS is legally permitted to revise its policy on disclosing Medicare reimbursement payments to individual physicians in a manner that could identify individual physicians. The Department's policy on the release of physician information has not been updated since 1980, when HHS concluded that "the public interest in the individually identified payment amounts is not sufficient to compel disclosure in view of