Medicare data release to providers is part of bipartisan SGR “fix” bill.

On Thursday, three committees of Congress agreed on language that would permanently fix the flawed SGR bill. The bill has sweeping changes associated with it including moving physician payment away from fee-for-sevice to "alternative payment models" such as Accountable Care Organizations and Medical Homes. It also suggests a pay-for-value instead of volume program, although the value portion of payment is not clearly defined.

The Medicare data policy is also covered. At the Center we have been working in D.C. for years on allowing Medicare data to be released to physicians for the purpose of improvement. (Read here.) In this bill Congress agrees with us. In the original ACA provision the Qualified Entities(QEs) were established to manage the use of Medicare data (as well as commercial and Medicaid data). The Wisconsin Health Information Organization (WHIO) and other All Payer Claims data bases, like CIVIC in Colorado, have been on the forefront of releasing meaningful data to providers for several years. Both organizations have become QEs recently and both have need for the Medicare data set. If passed by Congress this bill will:

1. Allow QEs to provide or sell analyses to downstream “authorized users.” A QE could use combined data to conduct “additional non-public analyses,” as determined appropriate by the Secretary, and provide or sell those analyses to certain “authorized users” for non-public use. The list of authorized users includes: (1) a provider of services; (2) a supplier; (3) an employer who will use the analyses only for purposes of providing health insurance to its employees and retirees; (4) a health insurance issuer that is providing the QE with data; (5) a medical society or hospital association; and (6) any other entity that is approved by the Secretary. The analyses could not contain any information that individually identifies patients, except where the information relates to patients of the providers and suppliers who are receiving the analyses. Authorized users would be prohibited from using the analyses for marketing purposes.
2. Allow QEs to provide or sell access to combined data to a subset of authorized users. A QE could provide or sell combined data to a subset of authorized users for non-public use, including for purposes of assisting providers and suppliers in developing and participating in quality and patient care improvement activities, including developing new models of care. Authorized recipients of the combined data include: (1) a provider of services; (2) a supplier; and (3) a medical society or hospital association. Employers and health insurance issuers would not be allowed to access the combined data from the QE. The data could not contain any information that individually identifies patients, except where the information relates to patients of the providers and suppliers who are receiving the data. QEs and authorized users must enter into a data use agreement (DUA), which must contain privacy and security requirements, as determined appropriate by the Secretary, and prohibitions on using data to link to other individually identifiable sources of information. Authorized users would be prohibited from using the data for marketing purposes.
3. Allow QEs to provide, at no charge, Medicare-only claims data to a subset of authorized users. A QE could provide at no charge Medicare-only claims data to (1) providers; (2) suppliers; and (3) medical societies or hospital associations. The data could not contain any information that individually identifies patients, except where the information relates to patients of the providers and suppliers who are receiving the data. QEs and authorized users must enter into a DUA, which must contain privacy and security requirements, as determined appropriate by the Secretary, and prohibitions on using data to link to other individually identifiable sources of information. Authorized users would be prohibited from using the data for marketing purposes.
4. Allow providers and suppliers who are authorized users to re-disclose analyses and data in certain limited circumstances. In general, authorized users would be prohibited from re-disclosing or making public any analyses or data provided to them (or any analyses the user generates from data provided to them). However, providers and suppliers who are authorized users may, as determined appropriate by the Secretary, redisclose analyses or data for purposes of performance improvement and care coordination activities, so long as the analyses or data is not made public.
5. Require QEs to offer providers and suppliers an opportunity to review. Prior to providing or selling an analysis to an authorized user, where the analysis identifies a provider or supplier who is not being provided or sold the analysis, a QE must offer the provider or supplier an opportunity to appeal and correct errors.
6. Assess penalties for breach of data use agreement. The Secretary would have the authority to assess a penalty on the QE in the event that the QE breaches its DUA with CMS or where the authorized user breaches its DUA with the QE. The assessment would be an amount up to $100 for each individual Medicare beneficiary whose data was disclosed pursuant to the DUA.
7. Require annual reporting by QEs. QEs providing or selling non-public analyses or data would be required to submit annually to the Secretary a report that includes: (1) a summary of the analyses provided or sold and the total amount of fees received; (2) a description of the topics and purposes of such analyses; (3) information on the entities who receive actual data, including the uses of the data and the fees generated; and (4) other information as required by the Secretary.

This legislation (see attachment) has one disappointing feature from our perspective. It does not allow insurers to have direct access to the data set. They can request that analysis be done by the QE but won't be able to run their own analysis. We did not advocate for this provision but it did end up in the final language. Despite this issue we are satisfied that this bill, if passed, will radically change the transparency environment in the U.S. Physicians will be able to benchmark against best practice for many health conditions. We believe cost and quality will rapidly improve as physicians see comparative data on their practices. In short, this a  triumph for patients and we urge Congress to act quickly to pass it.

Legislation: H R 4015