CMS Policy Uses Balancing Test to Permit Disclosure of Individual Physicians’ Medicare Payment Data Under FOIA

A recent change to CMS policy will allow for requests of physicians’ individually identifiable Medicare payment information under the Freedom of Information Act (FOIA).  CMS announced that it would begin utilizing a case-by-case analysis in response to FOIA requests to weigh the competing interests between the privacy interest of the individual physician and the public interest in disclosure of the information.  The determination will vary based on the particular facts of the individual case.

Previously, CMS took the position that the physician’s right to privacy outweighed the public interest in disclosing Medicare payment information, in line with several federal court decisions. This recent shift in policy comes after a Florida federal court ruled that physicians’ privacy rights no longer trump the public interest in making the Medicare payment information public.

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