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New Rule Brings Sweeping Changes to Physician Privacy, Part II

Earlier this week, we discussed the new U.S. Department of Health and Human Services (HHS) policy on disclosure of Medicare reimbursement to individual physicians.  The policy, set to take effect on March 18, 2014, enables the Centers for Medicare & Medicaid Services (CMS) to evaluate requests for physician pay information under the Freedom of Information Act (FOIA) and, in some cases, release the data. This new policy marks a fundamental shift in HHS’ commitment to protect physician privacy.

The American Medical Association (AMA), among others, is highly skeptical of the new policy.  In a letter to CMS, the AMA urged caution, stating that, "Medicare data is highly susceptible to misleading conclusions.”  FOIA Exemption 6 does permit the government to withhold all information about individuals in "personnel and medical files and similar files" when the disclosure of such information "would constitute a clearly unwarranted invasion of personal privacy.”

HHS’ new policy on disclosure of Medicare reimbursement data represents a good opportunity for physicians to confirm billing and documentation practices to ensure compliance with Medicare requirements.  Under HHS’ new disclosure policy, physician reimbursement data is likely to be more accessible to individuals and businesses who may be motivated to identify problems.  As a result, physicians may be exposed to additional false claims liability through qui tam actions.  A billing audit is a great way to confirm that physician billing is being handled appropriately and to mitigate compliance risk.

The Affordable Care Act is dedicated to shedding light on physician pay; in addition to the new CMS disclosure policy, The Physician Payments Sunshine Act will require that drug and device manufacturers disclose any payments made to health care providers and this information will be made available beginning in September, 2014.  In light of these changes, ensuring compliance in physician billing and other financial transactions is of paramount importance.

If you are a Medicare physician and want to make sure that your billing is compliant, contact a health care attorney at McBrayer today. We can work with physician practices to complete billing compliance audits and internal reviews to help you avoid liability regardless of who sees your reimbursement data.

This article is intended as a summary of federal or state law and does not constitute legal advice.

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