by Ben Vernia | March 3rd, 2011
In a March 3 article, the Wall Street Journal reports today that Senator Charles Grassley (R-IA, architect of the key 1986 amendments to the False Claims Act and a longstanding proponent of whistleblower suits) and Senator Ron Wyden (D-OR) are both pushing bills to make Medicare payment data available to the public. The story follows a November 2010 series of reports by the WSJ on Medicare fraud after being granted limited access to the program’s data. The newspaper reported that public access has been forbidden under the terms of an injunction granted in 1979 at the instigation of the Florida Medical Association and the American Medical Association, who argued then that disclosing payment information intruded upon physicians’ privacy.
Comment: Opening access the Medicare claims – appropriately redacted to protect patient privacy – would have several beneficial effects beyond merely encouraging private parties to mine the data for patterns of fraud. Open access to the data would enable many, if not most, health care whistleblowers to satisfy the particularity requirement under Fed. R. of Civ. P. 9(b), it would provide defendants with the ability to reality-check government damages arguments, and it would remove impediments to public health research wholly unrelated to fraud cases.
