[Congressional Record Volume 157, Number 50 (Thursday, April 7, 2011)]
[Senate]
[Pages S2268-S2269]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. GRASSLEY (for himself and Mr. Wyden):
  S. 756. A bill to amend title XI of the Social Security Act to 
provide for the public availability of Medicare claims data; to the 
Committee on Finance.
  Mr. GRASSLEY. Mr. President, in March, I introduced S. 454, the 
Strengthening Program Integrity and Accountability in Health Care Act, 
to enhance the government's ability to combat Medicare and Medicaid 
fraud.
  One of the provisions in that bill would require the Secretary of 
Health and Human Services to issue regulations to make Medicare claims 
and payment data available to the public similar to other federal 
spending disclosed on www.USAspending.gov.
  That website was created by legislation sponsored by then-Senator 
Obama and Senator Coburn. It lists almost all federal spending, but it 
doesn't include Medicare payments made to physicians.
  That means virtually every other government program, including some 
defense spending, is more transparent than spending by the Medicare 
program.
  Medicare is funded by taxpayers, and in 2009, the federal government 
spent $502 billion on Medicare.
  Taxpayers should have a right to see how their hard-earned dollars 
are being spent.
  Also, if doctors know their billing information is public, it might 
deter some wasteful practices and overbilling.
  On the day that I introduced S. 454, I learned that Senator Wyden was 
also working on legislation to make Medicare payments to physicians 
available to the public. We decided to work together.
  Today, Senator Wyden and I are introducing the Medicare Data Access 
for Transparency and Accountability Act, Medicare DATA Act.
  This bill would require the Secretary of Health and Human Services to 
issue regulations to make available a searchable Medicare payment 
database that the public can access at no cost.
  Our bill also clarifies that data on Medicare payments to physicians 
and suppliers do not fall under a Freedom of Information Act, FOIA, 
exemption.
  Under a 1979 court decision, Medicare is prohibited from releasing 
physicians' billing information to the public.
  But before that injunction, the Department of Health, Education, and 
Welfare--now the Department of Health and Human Services--was in the 
process of releasing reimbursement data for all Medicare providers.
  Third parties that have tried to obtain physician specific data 
through the FOIA process have failed in the past because the courts 
held that physicians' privacy interests outweigh the public's interest 
in disclosure.
  The nonprofit, consumer organization--Consumers' Checkbook--for 
example, had filed a lawsuit against the Department of Health and Human 
Services to compel disclosure of that data.
  The organization made its FOIA request to determine whether or not 
Medicare paid physicians who had the qualifications to perform the 
services for which they sought federal reimbursement, especially those 
performing a high volume of difficult procedures.
  In particular, the organization was looking for physicians with 
insufficient board certifications or histories of disciplinary actions.
  My question is: why wouldn't we want individuals examining this data 
to ensure that the government is protecting taxpayer dollars by 
preventing improper billing to the Medicare program?
  And why wouldn't we want public interest watchdog groups helping to 
look out for potential abuse or fraud?
  In January, the Wall Street Journal reported the American Medical 
Association's, AMA, concerns about making

[[Page S2269]]

Medicare claims data publicly available.
  The AMA President said that physicians ``should not suffer the 
consequences of having false or misleading conclusions drawn from 
complex Medicare data that has significant limitations.''
  But I would like to note the value of access to Medicare billing 
data.
  Even with limited access, the Wall Street Journal was able to 
identify suspicious billing patterns and potential abuses of the 
Medicare system.
  The Wall Street Journal found cases where Medicare paid millions to a 
physician, sometimes for several years, before those questionable 
payments stopped.
  Volume alone doesn't automatically mean there's fraud, waste, or 
abuse.
  More patients may be going to a specific physician for a particular 
service because that physician is a leader in his or her field.
  Nonetheless, to alleviate the concerns raised by the American Medical 
Association, our bill would require a disclaimer that the data in the 
public database ``does not reflect on the quality of the items of 
services furnished or of the provider of services or supplier who 
furnished the items or services.''
  I believe transparency in the health care system leads to more 
accountability and thus less waste and more efficient use of scarce 
resources.
  I have often quoted Justice Brandeis, who said, ``Sunlight is the 
best disinfectant.''
  That is what Senator Wyden and I are aiming to accomplish with the 
Medicare DATA Act.
  When it comes to public programs like Medicare, the Federal 
Government needs all the help it can get to identify and combat fraud, 
waste and abuse.
  Our bill will add to the reforms Congress passed last year.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                 S. 756

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Medicare Data Access for 
     Transparency and Accountability Act''.

     SEC. 2. PUBLIC AVAILABILITY OF MEDICARE CLAIMS DATA.

       (a) In General.--Section 1128J of the Social Security Act 
     (42 U.S.C. 1320a-7k) is amended by adding at the end the 
     following new subsection:
       ``(f) Public Availability of Medicare Claims Data.--
       ``(1) In general.--The Secretary shall, to the extent 
     consistent with applicable information, privacy, security, 
     and disclosure laws, including the regulations promulgated 
     under the Health Insurance Portability and Accountability Act 
     of 1996 and section 552a of title 5, United States Code, make 
     available to the public claims and payment data of the 
     Department of Health and Human Services related to title 
     XVIII, including data on payments made to any provider of 
     services or supplier under such title.
       ``(2) Implementation.--
       ``(A) In general.--Not later than December 31, 2012, the 
     Secretary shall promulgate regulations to carry out this 
     subsection.
       ``(B) Requirements.--The regulations promulgated under 
     subparagraph (A) shall ensure that--
       ``(i) the data described in paragraph (1) is made available 
     to the public through a searchable database that the public 
     can access at no cost;
       ``(ii) such database--

       ``(I) includes the amount paid to each provider of services 
     or supplier under title XVIII, the items or services for 
     which such payment was made, and the location of the provider 
     of services or supplier;
       ``(II) is organized based on the specialty or the type of 
     provider of services or supplier involved;
       ``(III) is searchable based on the type of items or 
     services furnished; and
       ``(IV) includes a disclaimer that the aggregate data in the 
     database does not reflect on the quality of the items or 
     services furnished or of the provider of services or supplier 
     who furnished the items or services; and

       ``(iii) each provider of services or supplier in the 
     database is identified by a unique identifier that is 
     available to the public (such as the National Provider 
     Identifier of the provider of services or supplier).
       ``(C) Scope of data.--The database shall include data for 
     fiscal year 2012, and each year fiscal year thereafter.''.
       (b) Information Not Exempt Under the Freedom of Information 
     Act.--The term ``personnel and medical files and similar 
     files the disclosure of which would constitute a clearly 
     unwarranted invasion of personal privacy'', as used in 
     section 552(b)(6) of title 5, United States Code, does not 
     include the information required to be made available to the 
     public under section 1128J(f) of the Social Security Act, as 
     added by subsection (a).

  Mr. WYDEN. Mr. President, I rise today with Senator Grassley to 
introduce the Medicare Data Access for Transparency and Accountability 
Act. I would like to begin by thanking my friend and esteemed colleague 
for his unwavering commitment to greater transparency and 
accountability in government. This Medicare DATA Act advances that 
goal.
  Sunshine continues to be the greatest disinfectant. In that light, 
the Medicare DATA Act ensures all taxpayers have access to the Medicare 
Claims Database, both to aid them in making medical decisions, and in 
understanding what their money is paying for in this vital, yet 
enormous, health program. Making this information public will also help 
prevent wasteful spending and outright fraud in Medicare claims. The 
Medicare Claims Database is an important resource for public and 
private stakeholders as it captures healthcare provider payment and 
claims information for roughly 1/3 of the United States healthcare 
system. But why isn't this information already available?
  In 1978, the Department of Health Education and Welfare attempted to 
release this information, upon request, under the premise that 
accessibility to the source data was in the public interest and 
therefore should be made available for public consumption. An 
injunction by a Florida court, however, successfully blocked that 
public disclosure of this information. As a result, this data has 
been--with limited exceptions made for government employees, 
contractors, and researchers willing to pay for partial access--off 
limits for the last three decades. Passage of the Medicare DATA Act 
puts an end to that practice.
  I consider hiding information affecting the American taxpayer that 
clearly should be in the public domain, to be indefensible in a free 
society. With this principle in mind, I join with Senator Grassley in 
changing ``business as usual.''
  I urge my colleagues to support this legislation so that Medicare 
data is finally fully transparent and available to Medicare 
beneficiaries and taxpayers alike. I look forward to working with my 
colleagues in this effort.
                                 ______