SKEPTICS SCOFFED — and not altogether without reason — when President Obama vowed to make major progress on domestic policy through the use of his executive power alone. In at least one instance, however, Mr. Obama’s administration has shown that it is possible to reform government significantly without a new act of Congress and without crossing constitutional boundaries.
We refer to the Department of Health and Human Services’ announcement that from now on it will greatly expand public disclosure of doctor-specific data on Medicare payments. This will enable the public to know, in detail, what happens to the $70 billion-plus that the program spends on physician services each year. Previously, such data had been off-limits due to supposed doctor privacy concerns. But last year a federal judge in Florida, Marcia Morales Howard, lifted that ban, citing the public interest in illuminating potential fraud and abuse in the vast Medicare program — which made $28.8 billion in improper payments during 2011, according to the Government Accountability Office. And HHS decided to incorporate the court’s reasoning into new regulations.
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Under the new HHS rule, the Center for Medicare and Medicaid Services (CMS) will begin posting a data set on the types of medical services furnished by individual providers, along with the charges submitted for each. Individual patients will not be identified. Doctors who see fewer than 11 Medicare patients per year will be exempt. “Release of physician-identifiable payment information will serve a significant public interest by increasing transparency of Medicare,” CMS Principal Deputy Administrator Jonathan Blum noted in a letter to the American Medical Association about his agency’s decision.
Credit is due to our colleagues at Dow Jones, who used more limited physician data obtained under the Freedom of Information Act to uncover physician conflicts of interest, unnecessary surgeries and other Medicare abuses in a series of Wall Street Journal articles during 2010 and 2011. Dow Jones and others sued for wider disclosure, which led to Judge Howard’s ruling. Legislation proposed by Sens. Ron Wyden (D-Ore.) and Charles E. Grassley (R-Iowa) also contributed to the pressure for greater openness.
The Obama administration’s decision should accomplish most of the Wyden-Grassley bill’s goal — without great new expenditures of public money. To the contrary, taxpayers should reap considerable savings, once journalists and others start mining the data for patterns of questionable billing. Indeed, the very existence of this powerful new form of public scrutiny could be a powerful deterrent against waste and abuse.