Consumer's Checkbook has won a FOIA lawsuit against the Department of Health and Human Services ("HHS") and it's component agency, Centers for Medicare and Medicaid Services ("CMS"). Judge Emmit G. Sullivan of the District Court for the District of Columbia has ordered CMS to release unredacted portions of all Medicare claims submitted by physicians in the District of Columbia for 2004 and to grant Consumer's Checkbook a fee waiver for this material.
The lawsuit developed after plaintiff made a request in March of 2006 for the Medicare claims for five localities (besides D.C., they sought Illinois, Maryland, Washington and Virginia) and sought a fee waiver. CMS denied the request in June of 2006 saying they couldn't "satisfy the request utilizing a reasonable effort." CMS did not reach a decision on the fee waiver at that time.
Ultimately, Consumer's Checkbook sued CMS. After the suit was filed, CMS said they could actually produce documents, but since they were denying the fee waiver it would cost Consumer's Checkbook $3,944.70 per each of the five localities for the information. Consumer's Checkbook then temporarily narrowed the scope of the request, but appealed the denial of the fee waiver. The government moved for summary judgment on the fee waiver issue because at the time of the lawsuit, Consumer's Checkbook had not exhausted its administrative remedies. Shortly thereafter, it denied the fee waiver appeal of Consumer's Checkbook but said it would release the documents in full upon payment.
Consumer's Checkbook then filed an amended complaint on April 4, 2007. The government issued a renewed motion for summary judgment, adding to its fee waiver arguments an argument that it could withhold certain information pursuant to FOIA Exemption 6.
Judge Sullivan disagreed on all three points with the government. He found that since the fee waiver had been appealed and decided, the administrative remedies were exhausted. He next found that Exemption 6 did not protect the annual amounts of Medicare reimbursements to physicians because the public interest (in finding out about government payments to third parties) outweighed the privacy interests of the providers. In reaching his decision, the Court discussed a line of cases that found that business interests, such as the payments from Medicare, had a lesser privacy interest than other personal information that would reveal intimate details of an individual. Finally, the Court found that the plaintiff met the requirements of the fee waiver regulations set forth by HHS and therefore, a fee waiver was warranted.
The government now has a month to release the information. It will be interesting to see if they push for an appeal or make a timely release per the Court Order. It should be noted that a trend seems to be occurring in the successful fighting of fee waiver denials by plaintiffs.