• A
  • |
  • A
  • Text size

Freedom of Information Act

Alley v. United States Department of HHS, 590 F.3d 1195 (11th Cir. 2009)

Also under Physicians' privacy rights

Outcome:     Very favorable

Issue

The issue in this case is whether the Freedom of Information Act (“FOIA”) authorized the federal government to release information that could be used to calculate the amounts received by specific physicians under the Medicare program.

AMA Interest

The AMA seeks to protect physicians’ privacy interests.

Case Summary

Jennifer Alley and her closely held company, Real Time Medical Data, LLC, submitted a series of FOIA requests to the Centers for Medicare and Medicaid Services (“CMS”), requesting disclosure of records for Medicare claims from the United States Department of Health and Human Services (“HHS”).  The requests sought physician identifying information linked to payments for Medicare services.  HHS opposed the FOIA request, contending that production of the requested documents would infringe physicians’ privacy rights.  It also asserted that the document production would violate an injunction that had been entered in a similar lawsuit against the United States Department of Health, Education and Welfare, the predecessor to HHS, and in favor of the Florida Medical Association and a class of physicians.  Florida Medical Association v. HEW, 479 F.Supp. 1291 (M.D. Fla. 1979).

The plaintiffs sued HHS, seeking an order to compel production.  When it learned of the lawsuit, the AMA intervened as an additional defendant.  The district court overruled the objections of HHS and the AMA, and it ordered HHS to produce the requested documents.  HHS and the AMA appealed.

The United States Court of Appeals for the Eleventh Circuit vacated the order of the district court, holding that the 1979 Florida injunction prohibited HHS from producing the requested documents.  It remanded the case for a further determination of whether the injunction excused HHS from producing any documents or whether it only excused HHS from producing documents pertaining to AMA members or to physicians licensed in Florida.

On remand, the trial court entered summary judgment in favor of HHS and against the plaintiffs. 

AMA Involvement

The AMA intervened at the district court level and then, along with HHS, successfully prosecuted the appeal.

Consumers' Checkbook v. United States Department of HHS, 554 F.3d 1046 (D.C. Cir. 2009)

Also under Physicians' Privacy rights

Outcome:     Very favorable

Issue

The issue in this case was whether the Freedom of Information Act ("FOIA") authorizes the government to release information that could be used to calculate the amounts received by specific physicians under the Medicare program.

AMA interest

The AMA seeks to protect physicians' privacy interests.

Case summary

Consumers' Checkbook, a non-profit organization headquartered in Washington, D.C., provided information to consumers.  Consumers' Checkbook submitted a FOIA request to the Centers for Medicare and Medicaid Services ("CMS"), requesting disclosure of records for Medicare claims from the United States Department of Health and Human Services ("HHS").  The request sought physician-identifying information linked to each Medicare service or procedure provided to unidentified patients. The information was requested so that Consumers' Checkbook could help consumers determine "(1) whether the government is allowing and paying for Medicare physicians with less-than-optimal levels of experience to perform difficult procedures .... , (2) whether the government is allowing Medicare physicians with insufficient board certifications, histories of disciplinary actions, or poor scores on independent quality assessments to perform high volumes of difficult procedures for which they may not be qualified .... , and (3) whether Medicare physicians are exhibiting practice patterns that conform with existing guidelines."

HHS opposed the FOIA request, contending that production of the requested documents would infringe physicians' privacy rights. It also asserted that the document production would violate an injunction that had been entered in a similar lawsuit against the United States Department of Health, Education and Welfare, the predecessor to HHS, and in favor of the Florida Medical Association, the AMA, and a class of physicians.  Florida Medical Association v. Department of HEW, 479 F. Supp. 1291 (M.D.Fla. 1979).

Following a period of negotiations, Consumers' Checkbook sued HHS, seeking an order to compel production.  The district court ordered HHS to produce the requested documents, and HHS appealed.

The United States Court of Appeals for the District of Columbia Circuit, by a split decision, held that physicians could maintain the confidentiality of their payments from Medicare, thus reversing the federal district court. The majority found that the physician interest in the privacy of Medicare payments outweighed the public interest in disclosure.  It explicitly stated that it was not considering the effect of the 1979 Florida injunction.  Consumers' Checkbook  petitioned the Supreme Court for certiorari, but its petition was denied.

AMA and Litigation Center involvement

The AMA intervened in the appeal in order to protect its adjudicated rights under FMA v. HEW. The Litigation Center and several medical associations filed an amicus curiae brief seeking reversal of the order that had been entered in favor of Consumers' Checkbook.

AMA brief to the United States Court of Appeals for the District of Columbia Circuit.

Litigation Center amicus brief to the United States Court of Appeals for the District of Columbia Circuit.

 

Florida Medical Association v. United States Department of HEW

85 Fed.R.Serv.3d (Callaghan) 1029 (M.D. Fla. 2013)

Also under Physicians' Privacy Rights

Outcome:    Very unfavorable

Issue

The issue in this case was whether the Freedom of Information Act (“FOIA”) authorizes the federal government to release information that could be used to calculate the amounts received by specific physicians under the Medicare program.

AMA interest

The AMA seeks to protect physicians’ privacy interests.

Case summary

In 1979, an injunction was entered against the United States Department of Health, Education and Welfare (the predecessor to the Department of Health and Human Services) and in favor of the Florida Medical Association, the AMA, and a class of physicians.  This injunction prohibited HEW/HHS from making information public that would identify specific physicians and disclose how much those physicians received in Medicare payments.

In 2011, Dow Jones & Company, the publisher of the Wall Street Journal, moved to reopen this case, intervene, and have the judgment vacated.  It asserted that the public interest in disclosure of governmental activities outweighed the physicians’ privacy interest.  Two less prominent persons, Jennifer Alley and her company, Real Time Medical Data, LLC (RTMD), also sought to intervene and reopen the case for the same purpose.

On September 26, 2011, the court reopened the case and allowed Dow Jones (and Alley and (RTMD) to intervene.  On May 31, 2013, the court vacated the injunction, but without reaching the merits of whether the public interest in disclosure outweighed physicians' privacy interests.  Rather, the court held, a continuing injunction against future disclosure of documents was improper.  Instead, each FOIA request would have to be considered separately, with the competing interests for and against disclosure weighed anew for each such request.

The AMA and FMA elected not to appeal from the court's order of vacature, so this case is now concluded.

AMA involvement

The AMA, along with the Florida Medical Association, sought to prevent the judgment from being vacated.

Health Net of Connecticut v. Freedom of Information Commission (Conn. S.Ct.)

Outcome:     Very favorable

Issue

The issue in this case was whether managed care organizations (MCOs) were required to disclose their records under the Connecticut Freedom of Information Act ("FOIA").

AMA interest

The AMA believes that managed care organizations have a disclosure obligation under FOIA.

Case summary

The Connecticut Freedom of Information Commission ruled that several large MCOs, who helped to administer the Connecticut Medicaid program, were required to disclose information under the Connecticut FOIA relating to payment for physician services and prescription drug formulary policies and expenditures.  The disclosure would help to assure transparency in and efficient administration of the Medicaid program.  It would also help to determine whether physician payments were sufficient to secure adequate coverage for specialized medical care.

The trial court ruled that the MCOs were required to disclose their records under the Connecticut FOIA.  Although the MCOs initially indicated that they would appeal to the Connecticut Supreme Court, they later dropped their appeal.

Litigation Center involvement

If the case had been appealed to the Connecticut Supreme Court, the Litigation Center and the Connecticut State Medical Society would have filed an amicus brief to argue that the MCOs have a disclosure obligation.

Knapp Medical Center v. Grass, 2013 Tex. App. LEXIS 6864 (Tex. App. 2013)

Also under Hospitals, Physician Advocacy

Outcome:    Very unfavorable

Issue

The issue in this case was whether a nonprofit hospital had to disclose various of its financial documents to members of the public who ask to see them. 

AMA interest

The AMA believes that physicians have both the right and the responsibility to participate in activities contributing to the improvement of their community and the betterment of public health.

Case summary

Knapp Medical Center (KMC) was organized as a privately owned corporation under the Texas Nonprofit Corporations Act.  KMC signed an agreement to be purchased by South Texas Health System (STHS), a subsidiary of Universal Health Services, Inc. (UHS). 

Several physicians on the KMC medical staff have openly questioned whether the sale would be in the public interest.  In essence, the physicians have said that the KMC management “deliberately weakened the hospital by doing away with key medical procedures and demoralizing the spirit of staff so that it was ripe for sale.”  The physicians also assert that KMC unduly enriched its administrators, and they suspect that those administrators may be receiving special favors from STHS or UHS to facilitate the transaction.

In an attempt to learn more about KMC and the contemplated sale, the physicians asked KMC to provide them with board minutes and other financial information.  KMC refused, arguing that because it is privately owned it does not have to make such a disclosure.  KMC also contended that the dissident physicians have an ownership interest in a physician-owned hospital that competes with KMC, and it might harm KMC to produce the documents.

In response, the physicians hired an attorney, Jeffrey C. Grass, to represent them in their battle with KMC.  Mr. Grass sent KMC a letter demanding an inspection of KMC’s records.  He contended that KMC was required to produce documents under a provision of the Texas Nonprofit Corporations Act, which required a Texas nonprofit corporation to make its records available for inspection by the general public.  KMC refused the request, arguing that it was excused from the disclosure obligation by an exception in the Nonprofit Corporations Act.  Mr. Grass asserted otherwise.

KMC sued Mr. Grass, seeking a declaratory judgment as to its obligations to make disclosure to him and his clients.  The trial court found that KMC was subject to the disclosure requirements under the Texas Nonprofit Corporations Act and ruled in favor of Mr. Grass.  KMC appealed to the Texas Court of Appeals.

On June 6, 2013, the Court of Appeals by a split decision, reversed the trial court.  It held that the public contributions to KMC were made through a foundation that was legally distinct from KMC, and this separateness was sufficient to exempt KMC from complying with the corporate disclosure law.  Mr. Grass and his clients asked the Texas Supreme Court to hear the case, but the Supreme Court declined jurisdiction.  Grass has moved for rehearing of the denial

Litigation Center involvement

The Litigation Center, along with the Texas Medical Association, filed an amicus brief in the Texas Court of Appeals, supporting the physicians’ right to access the hospital’s documents. In addition, the Litigation Center and TMA also contributed to the physicians' legal expenses.

The Litigation enter also filed an amicus brief in support of the petition in the Texas Supreme Court for rehearing.

Texas Court of Appeals brief

Texas Supreme Court brief in support for rehearing