Published 6/1/2008
Grant Nyhammer, JD

AAOS supports HHS appeal on release of claims data

The American Association of Orthopaedic Surgeons, along with 16 other medical societies, has filed a “friend-of-the-court brief” in a Freedom of Information Act (FOIA) case brought by Consumers’ Checkbook. The case is pending in the federal court of appeals for the District of Columbia.

Checkbook’s FOIA request seeks Medicare claims data that would identify individual physicians and could be combined with the publicly available physician fee schedule to determine physician incomes from Medicare. The Department of Health and Human Services (HHS) denied the request on grounds that the claims data are protected under “FOIA Exemption 6,” which applies when a disclosure of government-held information would result in “a clearly unwarranted invasion of individual privacy.” In response to the denial, Checkbook sued, and the federal district court ordered HHS to disclose the requested claims data. HHS then filed an appeal.

The medical societies’ brief argues that disclosure of the requested information would violate the privacy rights of physicians and would harm patients and the public interest. The brief shows that claims data alone cannot be used to assess accurately the quality of physician services or develop reliable physician rankings, which are among the purported goals behind Checkbook’s request. Disclosure of the requested data would therefore mislead patients about the quality of their physicians’ services and incomes from Medicare and thus interfere with the physician-patient relationship.

A decision in the case is not expected for several months.

Grant Nyhammer, JD, is associate general counsel for the AAOS. He can be reached at nyhammer@aaos.org