[Federal Register Volume 79, Number 12 (Friday, January 17, 2014)]
[Notices]
[Pages 3205-3206]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-00808]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Office of the Secretary

[CMS-0041-N]


Modified Policy on Freedom of Information Act Disclosure of 
Amounts Paid to Individual Physicians Under the Medicare Program

AGENCY: Centers for Medicare & Medicaid Services (CMS), HHS.

ACTION: Notice.

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SUMMARY: This notice sets forth a new policy regarding requests made 
under the Freedom of Information Act for information on amounts paid to 
individual physicians under the Medicare program in which CMS will make 
case-by-case determinations as to whether exemption 6 of the Freedom of 
Information Act applies to a given request for such information.

DATES: This notice is effective on March 18, 2014.

FOR FURTHER INFORMATION CONTACT: Grace Im (202) 260-6770.

SUPPLEMENTARY INFORMATION:

I. Background

    In a previous policy on the disclosure of amounts paid to 
individual physicians under the Medicare program, which was set forth 
in the November 28, 1980 Federal Register (45 FR 79172), the Secretary 
of the Department of Health, Education, and Welfare (which later became 
the Department of Health and Human Services (the Department)) stated 
that, in considering the two competing interests of public transparency 
and privacy, the public interest in the Department's disclosure of the 
amounts that had been paid to individual physicians under the Medicare 
program was not sufficient to compel disclosure under the Freedom of 
Information Act. The policy change was premised on two courts having 
found a compelling privacy interest on the part of the physicians. See, 
Florida Medical Association, Inc., et al. v. Department of Health, 
Education, and Welfare, et al. (M.D. Fla. 1979) and The American Staffs 
of Private Hospitals, Inc., et al. v. Health Care Financing 
Administration, et al. (E.D. La. 1980). However, the policy was 
expressly published in response to the Florida Medical Association 
district court's issuance of a permanent injunction, which barred the 
Department of Health, Education, and Welfare from disclosing 
identifiable annual Medicare reimbursement payments of individual 
physicians or disclosure of payments in a manner that could identify 
individual physicians.

[[Page 3206]]

    That district court vacated its permanent injunction on May 31, 
2013 after determining that such a broad injunction was no longer 
authorized under the Privacy Act after the U.S. Court of Appeals for 
the Eleventh Circuit's decision in Edison v. Department of the Army 
(11th Cir. 1982), and thus its continued enforcement was no longer 
equitable. Following the court's decision, CMS solicited public comment 
on August 6, 2013 on its proposed policies with respect to disclosure 
of individual physician payment information.\1\
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    \1\ CMS, ``Request for Public Comments on the Potential Release 
of Medicare Physician Data'' (August 6, 2013), available at: http://www.cms.gov/Research-Statistics-Data-and-Systems/Statistics-Trends-and-Reports/Medicare-Provider-Charge-Data/Public-Comment.html.
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II. Provisions of the Notice

    The Secretary has considered the court's decision and the wide 
spectrum of public comments received by CMS. In doing so, the 
Department has decided to replace the prior policy, as set forth in the 
November 28, 1980 Federal Register (45 FR 79172), with a new policy in 
which CMS will make case-by-case determinations as to whether exemption 
6 of the Freedom of Information Act applies to a given request for 
information pertaining to the amounts that were paid to individual 
physicians under Medicare. Exemption 6 requires CMS to weigh the 
balance between the privacy interest of individual physicians and the 
public interest in disclosure of such information. As the outcome of 
the balancing test will depend on the circumstances, the outcomes of 
these analyses may vary depending on the facts of each case. However, 
in all cases, we are committed to protecting the privacy of Medicare 
beneficiaries.

    Dated: January 6, 2014.
Marilyn Tavenner,
Administrator, Centers for Medicare & Medicaid Services.
    Approved: January 6, 2014.
Kathleen Sebelius,
Secretary, Department of Health and Human Services.
[FR Doc. 2014-00808 Filed 1-14-14; 11:15 am]
BILLING CODE 4120-01-P