Is it Time for a HIPAA for Physicians?

By Sarah Gebauer, Timothy Petersen, Elizabeth A Steele

Since we wrote our opinion paper, Is it time for a HIPAA for physicians?, the collection and release of clinical quality ratings data has accelerated, as well as the controversies surrounding such data. The quality of the data themselves, in addition to the collection and reporting of the data, are being addressed in the media, state legislatures, the US Congress and even in the US Supreme Court.

At the end of July 2016, CMS released Hospital Compare. National news agencies from NPR to CNN, as well as local outlets from Carlsbad to Chattanooga, reported on big-name institutions’ as well as small hospitals’ scores (Carlsbad [NM] Medical Center – 3 stars; Mayo Clinic – 5 stars). Not surprisingly, the American Hospital Association (AHA) and the American Association of Medical Colleges (AAMC) both issued press releases stating that the system is “misleading” (AAMC) and “confusing” (AHA). The AAMC goes further to state: “Through these star ratings, CMS has implied that hospitals have been measured on an equal basis and that the comparisons are fair, an assumption that is unfortunately not true.”

As CMS was releasing Hospital Compare, a bill was introduced to Congress – House of Representatives Bill 5927: Hospital Quality Rating Transparency Act of 2016. The first objective of the bill was to delay the release of Hospital Compare for one year (alternatively to remove the ratings as soon as practical). The basics of the Bill 5927 are: to release the methodology used, have an independent statistician validate the methodology, and have a public comment period on the ratings. The HR Bill 5927 mirrors states’ legislation, such as the NY Model Code, that addressed physicians’ concerns about data collected on their individual performance. In our article, we discuss some key elements for legislation concerning clinical ratings data.

The drive to collect meaningful data about costs, utilization and outcomes has led several states to establish all-payer claims databases (APCD). These databases attempt to collect information from all insurers within a state to develop a more robust dataset than could be achieved with Medicare and Medicaid databases. Guidelines for these datasets include HIPAA-level patient protection but they do not cover how they would protect providers from erroneous analyses and the release of inaccurate information. In a Supreme Court case this year (Gobeille v. Liberty Mutual Insurance Company), Vermont argued, unsuccessfully, that a third-party administrator was not exempt from submitting information to the state database. With the preemption of federal law over state regulations, the Supreme Court ruling did in fact release the insurance company from any obligation to report to the state database. This ruling will release a large number of insurers from reporting requirements to APCDs, bringing into question the validity of analyses on a state level.

In our article, we briefly discuss online ratings of physicians by public websites. The University of Utah releases Press Ganey survey results, which has been widely reported in the press and by the University itself. Notably, these are “patient experience of care” surveys and do not address the actual care (correct diagnosis and treatment, for example). Furthermore, the ratings are edited to remove “comments that are libelous, slanderous, profane or those that risk the privacy of our patients”. The University asserts that 99.5% of comments are published unedited. Yelp publishes much more comprehensive reviews, though it does have guidelines on appropriate content and protecting the privacy of other customers. Some reviews are de-emphasized by an algorithm that Yelp uses, in its own words, “to protect consumers and business owners from fake, shill or malicious reviews”. (They are not shown by default, but can still be seen under a ‘reviews not currently recommended’ link at the bottom of the displayed reviews.) Some business owners, including health care providers, have taken to responding very publicly directly to consumers on Yelp. In some instances, the respondents have discussed HIPAA-protected information in the process. And some business owners take it a step further by sending legal notices to their online reviewers. At the end of July 2016, Yelp announced that it would be adding a warning about businesses (or health care providers) that have made “questionable legal threats” in response to negative reviews. The irony of the lack of recourse for physicians to respond to openly available reviews is evident.

Yelp and ProPublica, an investigative journalism non-profit organization, have formed a partnership to analyze health care provider rankings on Yelp. ProPublica has an entire “Protecting Patient Privacy” series in which the Yelp review analysis appears. ProPublica has also published multiple articles outlining the weaknesses of HIPAA. Under the Freedom of Information Act, ProPublica obtained HHS investigations into HIPAA violations since 2008. In their analysis of the data, they noted that much of the information was redacted – specifically the names of health care providers. ProPublica is appealing HHS’s decision to redact the names. Previously, ProPublica released data on surgeon performance in their “Surgeon Scorecard”. When the New England Journal of Medicine published a perspective piece reviewing the scorecard, its editors also tweeted that “It’s unlikely @ProPublica’s surgeon scorecard will improve quality or provide sound information for patients.” A more recent article in Annals of Surgery devotes a rather long paragraph to ProPublica Surgeon Scorecard, using such terms as “shortcomings in…scientific methodology” and “problematic construct validity”.

The large number of unresolved issues surrounding the use of clinical data will continue to make headlines for years to come. In our article, we suggest some key issues to address in any legislation covering physician performance data sets. Everyone with an interest in healthcare – patients, physicians, payers, and hospitals – has an interest in the accuracy and fairness of information about physicians’ performance. Uniform legislation that extends to physicians and other providers the protections we offer patients, while ensuring the validity of these analyses, would be a step in the right direction.

Sarah Gebauer, MD is an assistant professor in the Department of Anesthesiology and Critical Care Medicine, University of New Mexico.

Timothy Peterson is a research specialist in the Department of Anesthesiology and Critical Care Medicine, University of New Mexico.

Elizabeth A. Steele, MD is the Vice Chair of Education and Associate Professor in the Department of Anesthesiology and Critical Care Medicine, University of New Mexico.

Photo by reednovagallery, used under CC BY / No alterations from the original

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