HHS Issues Policy Regarding Physician FOIA Requests

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On January 17, 2014, the Department of Health and Human Services (HHS) published its “Modified Policy on Freedom of Information Act Disclosure of Amounts Paid to Individual Physicians Under the Medicare Program” (the Modified Policy) in the Federal Register.  According to the Modified Policy, CMS will make case-by-case determinations regarding whether exemption 6 of the Freedom of Information Act (FOIA) applies to each request for information about amounts paid by Medicare to individual physicians. Exemption 6 at 5 U.S.C. § 552(b)(6) exempts files “the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”  HHS states that under the Modified Policy, the outcome of each analysis may vary depending on the facts of each case because exemption 6 requires the agency to weigh the balance of the public interest in disclosure of the information against individual physicians’ privacy interests.

The Modified Policy replaces HHS’ prior policy published in the November 28, 1980 Federal Register in which HHS stated that the public interest in the physician payment information “is not sufficient to compel disclosure in view of the privacy interests of the physicians.”  The prior policy was based on a 1979 Florida federal district court injunction that prohibited HHS from disclosing Medicare payment data in a manner that identified individual physicians.  However, on May 31, 2013, a Florida federal district court lifted the permanent injunction, clearing the way for HHS to re-evaluate its prior policy.  HHS issued a request on August 6, 2013, soliciting public comments on: (1) whether physicians have a privacy interest in Medicare payment information, and if so, how that interest should be weighed against the interest of public disclosure; (2) policies that CMS should consider; and (3) the form in which CMS should release information about individual physician payments.   The Modified Policy is HHS’ response to this solicitation. 

HHS’ August 6, 2013, solicitation is available here, and the Modified Policy published in the Federal Register is available here

Reporter, Kate Stern, Atlanta, +1 404 572 4661, kstern@kslaw.com.