An Open Response To HHS Secretary Michael Leavitt
by Brian Klepper and Michael Millenson
A few months ago, the two of us – both long-time advocates for transparency and accountability – posted separate comments on Secretary Mike Leavitt’s blog. Brian asked Secretary Leavitt to square his support of "Chartered Value Exchanges” with the attempt to block release of physician-specific Medicare claims data to Consumers’ Checkbook, which wants to rate doctors. After a court ruled that the data should be provided to the group, HHS appealed. Michael urged the secretary to go beyond supporting Consumers’ Checkbook and use his “bully pulpit” to promote sophisticated data analysis that could be used to create national quality comparisons.
Secretary Leavitt graciously asked us to consider and comment on the department’s proposed "Medicare trigger legislation" calling for the release of physician performance measures. We are delighted to continue the conversation.
First, let’s give credit where credit is due. We agree that the proposed legislation is a major step in the right direction.
Yet the legislation’s intent seems at odds with the department’s turn-back-the-clock arguments in Consumers’ Checkbook vs. HHS. There, the department asserts that physicians have a right to privacy, and that the quality of medical care they provide in return for taxpayer dollars does not have to be disclosed — despite its importance to consumers and other purchasers of care. Interestingly, this privacy is a privilege hospitals do not enjoy.
In a December 10, 2007 American Medical News article (since revised), the American Medical Association’s board chair gloated that HHS had taken the AMA's “advice” in appealing the original August 22, 2007 District Court ruling for Consumers’ Checkbook. Moreover, as the Los Angeles Times pointed out, while the department proclaims in press releases that it simply wants legal clarification on its authority to release the physician data, the government's legal brief in the case calls for the appeals court to reverse [the August] ruling, leaving the restrictions on the release of data in place.
This is not a partisan issue. Most objective health care experts across the political spectrum believe that transparent pricing and quality information is critical to transforming the current crisis-ridden system into one that is stable and sustainable. Without the kind of information sought by Consumers’ Checkbook, a health care marketplace simply cannot function. President Bush virtually said as much in his August, 2006 executive order.
HHS has said it “recognizes and shares the goals of Consumers’ Checkbook.” If that is so, HHS should match words with deeds. That means dropping its appeal of the Checkbook ruling and challenging purchasers, health plans and individual consumers to use the marketplace to reward doctors and others who provide or contribute to safer, higher quality, more efficient care.
Brian R. Klepper, PhD
Healthcare Performance, Inc.
Atlantic Beach, FL
Michael L. Millenson
Health Quality Advisors LLC
Highland Park, IL
Secretary Leavitt's Original Response to Brian and Michael:
Claims Data from Medicare
The proposal I made last week is also relevant in another way. A couple of commenters asked about a lawsuit involving the use of Medicare claims data by people outside of government.
Brian Klepper said: “On Friday the Memphis Business Journal reported you saying that we ought to have ‘a Travelocity for health care’ that would ‘give a quality grade for doctors and show how much they charge for services.’ I'm wholeheartedly with you on this. But how do you square this proposal with the fact that, though you're the nation's largest payor, you acquiesced to the AMA's interests and then refused to release physician data?
Can you please explain these discrepancies?”
Michael Millenson of Highland Park, IL agreed with Brian. He said, “It's past time for HHS to be an aggressive, whole-hearted mover towards release of more information and more timely information. Meanwhile, one easy, no-cost step would be for Secretary Leavitt to use his bully pulpit to call for states to collect ‘all payer’ data. It sounds like a technical issue, but what it will do is allow valid national comparisons of quality of care, as well as enable better state efforts. A local/nation win-win.”
I want to use Medicare claims data for this purpose. And I have been advocating the states provide their data for this purpose. However, I have a problem. A federal court in Florida, some years ago, prohibited HHS from publicly disclosing certain Medicare claims data. Specifically, HHS was prohibited from disclosing annual Medicare reimbursement rates for individually identifiable physicians.
A few months ago, another federal court — this time in D.C., ruled the opposite — that I must provide the data to a specific party. This leaves me sandwiched between two differing courts.
We are working to develop a solution. However, the real fix will need to be legislative.
In the Medicare trigger legislation I sent to Congress, I have included language that would allow HHS in a thoughtful, consistent way to enhance quality improvement efforts in our Chartered Value Exchanges with physician performance measurement results. This needs to happen. I think there is a potential for bipartisan action on at least this part of the legislation I sent up.
Michael and Brian, take a look at the legislation linked above and tell me what you think.