Why Consumers’ Checkbook v CMS is a Sideshow--Bush Administration Refuses to Release Provider Data

Brian Klepper joins us again today with another one of his welcome posts. This time he points out the hypocrisy in CMS, which has been calling for market transparency, refusing to provide provider data to a consumer group.

Why Consumers’ Checkbook v CMS is a Sideshow
by Brian Klepper

There are people who call for market solutions as the answer to every societal problem, but who then work to restrict the information that markets (and societies) must have to function effectively. Often, the truth is that these supposed market advocates need secrecy and opacity to protect their current advantages. If markets were to work as they claim they want, their actual behaviors (or pricing, or performance) would become known, and their positions compromised.

Which brings us to the new, interesting development in the case of Consumers’ Checkbook v CMS. You may remember that Consumers’ Checkbook (CC) is a consumer advocacy organization that sued CMS for the Medicare physician data in 4 states and DC. Seemingly arguing against their previous position, the Bush Administration – which actually has a good record for promoting health care pricing/performance transparency – took the opposite stance in this case, arguing instead that physicians have a right to privacy. (It is tempting to suggest that the AMA’s fingerprints must be all over this, but I don’t know that for sure.)

In any case, much to the surprise of me and, I’m sure, a lot of other people, on August 22nd, the court held with CC and ordered CMS to release the data by September 21st or appeal the decision. CC promptly promised to provide public access to the data, and sued again, this time for the Medicare physician data from the rest of the country.

On October 19ths, CMS appealed the ruling. This means the Administration will fight to keep physician data out of the public’s hands.

As I’ve said before, in the short term the symbolic importance of this battle cannot be overestimated. Currently, there are few, if any, freely available, robust sources of claims data. Health plans and clearinghouses have the largest data sources, but these are typically proprietary.

If a startup company wants to identify the best performing physicians in any market – the ones who, in a given specialty, consistently obtain the best outcomes at the lowest costs – there is no easy way to independently do that.

Or let’s say you have a family member with a complicated condition or who needs a particular procedure. There is no direct way for you to objectively determine which community physician has the best track record with that condition or procedure. (You CAN get information on which car has the best repair record, which house repair contractor gets the best reviews, and which pizza restaurant delivers the fastest.)

The good news is that the Administration’s position is weak, at best, and won’t last long, even if they win this round. Hospital data is already publicly available and states are now actively publicly reporting key measurements of hospital quality and safety. Why should physicians have a special status that keeps their track records secret from the patients who depend on them? How can this Administration, which argues incessantly for market-based solutions, suppose that the health care marketplace can resolve the crisis when, as the great economist Adam Smith would have pointed out, there is no information to drive the decision-making that healthy markets require.

It is ironic that we’re even still having this discussion. In the first years of the 20th century, the famous surgeon Ernest Codman MD began to campaign for “the end-result system of hospital standardization.” He said,

Hospitals [and surgeons], if they wish to be sure of improvement...must analyze their results, to find their strong and weak points, [and] must compare their results with those of [their peers]...[They should] make this information publicly known so that the future patients might make informed decisions.

In the end, it won’t matter what this Administration does. There is now widespread acknowledgment that much of the health care crisis can be traced to an inability to see what is going on behind the curtain. A tidal wave of sentiment is building in the marketplace, with calls for making the information available, so that decision-makers of all types can make responsible, informed decisions.

It is difficult to imagine that this stonewalling can last much longer. If transparency doesn’t occur through policy change, it will surely happen in the marketplace through vendors with the heft and resources to see it through. If the recent Health 2.0 conference in San Francisco made any point emphatically, it was that a slew of companies are focused on infusing health care with unprecedented levels of transparency and decision-support.

The transition away from an opaque market to one that makes relative pricing and performance known and that rewards the good providers is the real health care reform we’re all looking for. Yes, we need to find a way to re-enfranchise everyone into the system. But that will be much easier if there is reason to believe that we can get excessive care and cost under control.

And to that end, Consumers’ Checkbook v CMS is a sideshow, not a pivotal decision. On this issue, the Bush Administration and whoever is urging them on are anachronisms that will soon be swept away with the buggy whip and White-Out. The real change agent here is technology and the long-overdue realization by purchasers of all kinds that, when markets are opaque, value becomes secondary and many vendors will act most assertively in their own interests first.

Brian Klepper PhD
www.brianklepper.net