CMS Temporarily Suspends Open Payments System

by King & Spalding

On August 7, 2014, CMS announced via email that it has temporarily suspended the Open Payments system “to investigate a reported issue.” Although CMS did not offer further explanation, our understanding is that the system has been shut down since Monday, August 4, amid complaints from some physicians that they have been able to view within their Open Payments data dashboards data that was reported about other physicians with the same name. As a result of the suspension, covered recipients are not currently able to register and review data, and the 45-day review and dispute period is effectively on hold.

CMS noted in an email announcement that “[f]or each day the Open Payments system is offline for this incident, CMS will adjust the Open Payments review and dispute deadline and the following 15-day corrections period deadline accordingly.” CMS indicated that it would follow up with stakeholders “when the Open Payments system is scheduled to go back online.”

CMS’s announcement did not address whether the current suspension would impact its plans to publish the data by September 30, 2014. The suspension and related issues, however, may increase the likelihood that CMS will seriously consider calls from the American Medical Association (“AMA”) and others to push back the first publication deadline.

On Tuesday, August 5, more than 100 physician professional societies, including the AMA, signed on to a letter to CMS to express “serious concerns regarding how the Open Payments System has been implemented.” The letter, sent to CMS Administrator Marilyn Tavenner, urged CMS to postpone the first publication of the Sunshine data until March 31, 2015, to allow physicians sufficient time to register, review, and dispute data reported about them before CMS makes it public.

The letter notes that CMS’s short timeframe for uploading data, processing registrations, generating aggregated, individualized reports, managing disputes, and incorporating the necessary data updates, “will likely lead to the release of inaccurate, misleading, and false information.” The letter also notes that the complex registration process in combination with the condensed timeframe make the task of reviewing and disputing records by August 27 “effectively impossible” for physicians.

Notably, the letter also describes the groups’ concerns that manufacturers have the power to unilaterally dismiss disputes initiated by covered recipients, even if the covered recipients do not agree with the dismissal. The letter references a June 24 meeting between CMS and society staff, where CMS officials apparently stated their intent to issue clarifying guidance that manufacturers are not authorized to unilaterally dismiss disputes. The groups request that CMS issue clarifying guidance on that point.

The groups also voiced concern over CMS’s proposed change to the Sunshine Final Rule that would remove the exclusion for payments for serving as faculty at a continuing medical education program, and CMS’s current belief that textbooks, journal article supplements, and reprints are reportable.

The letter came a little more than a week after 26 physician professional societies and industry associations, including PhRMA and BIO, sent another letter to Administrator Tavenner. That letter requested that CMS provide physician stakeholders with a preview of the contextual information that will accompany the public release of the Open Payments data. The groups noted that without the contextual information mandated by Congress, there exists an opportunity for “confusion and misinterpretation.” The groups also urged CMS to increase educational outreach efforts to physicians and to simplify the physician registration process. The groups request that the education include “more information on what will be reported, when it will be reported, what the reporting will look like, and how [physicians] can see what will be reported about them.” The groups also requested that CMS share the number of physicians who have registered in Open Payments so that the groups can evaluate what additional efforts are needed to increase physician awareness and potentially help with physician registration.

Copies of the letters can be accessed here and here.

Reporter(s), Brian A. Bohnenkamp, Washington, D.C., +1 202 626 5413,

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© King & Spalding | Attorney Advertising

Written by:

King & Spalding

King & Spalding on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.