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Why credit the Wall Street Journal on the Medicare data release?

Tossing credit to the Wall Street Journal is a painful exercise for rival New York Times.

The paper’s failure to do just that on Wednesday earned it the scorn of its public editor, Margaret Sullivan. At issue was the New York Times’s front-page story on the release of Medicare data showing that a small number of doctors get a huge share of Medicare dollars. As Sullivan noted, the story omitted mention of the Wall Street Journal and publisher Dow Jones, which “pushed hard” to get the data released, in Sullivan’s formulation.

Susan Chira, an assistant managing editor at the New York Times, told Sullivan that the paper had made a regrettable omission: “I agree it would have been better to mention it and I wish we had. It was an oversight.”

Yet, as Sullivan pointed out, the New York Times wasn’t alone in dissing the Wall Street Journal —  The Washington Post, the Associated Press (AP) and USA Today had done the same thing. Since Sullivan’s public editorship isn’t public enough to cover these other outlets, the Erik Wemple Blog decided to pester them.

When asked about the non-credit, AP spokeswoman Erin Madigan responded that the wire service had credited the Wall Street Journal in stories “leading up to the data’s release. We support all efforts for transparency in government and to get the government to release data of interest to the public.” Pressed on why the story cited by Sullivan didn’t include the credit, Madigan responded, “We were focused on the substance of the data.”

Now for The Post. In its Wednesday story, the paper was a bit general in describing the circumstances leading up to the data dump: “The release of the information gives the public access for the first time to the billing practices of individual doctors nationwide. Consumer groups and news outlets have pressured Medicare to release the data for years.” The story also cited a group that had been aggressive in its attempts to get the information:

But consumer and public interest groups argued that the information will help consumers make better decisions. “This data is important because it will make it possible for consumers to identify physicians that will best meet their needs,” said Robert Krughoff, president of Consumers’ Checkbook, a group that began seeking the release of this information in 2005 and eventually sued for it.

A Post editor commenting on background noted that the Centers for Medicare & Medicaid Services (CMS) “did not release this data in reaction to the Wall Street Journal’s lawsuit, our reporting showed. And the WSJ was only one of several groups pressuring Medicare on this front.”  (A Post editorial from April 5 credited Dow Jones; a firewall separates the news and editorial sides of the paper.)

Lawsuits seeking Medicare data date back into the 2000s, noted the Post editor, and the Wall Street Journal “only joined this effort many years later, and its lawsuit was never resolved. Because CMS had a track record of successfully fending off these lawsuits, the agency likely had little to fear from the WSJ’s legal action.”

“That said, we don’t want to minimize the WSJ’s efforts; indeed, we applaud its initiative to push CMS for the data. But we don’t feel this information was released because of the actions of a single news organization.”

This blog has to disagree there. Colleen Schwartz, a spokeswoman for Dow Jones & Co., tells the Erik Wemple Blog, “If it weren’t for the Journal’s efforts to overturn the injunction, the public would not have this information.”

Injunction? Indeed: Settle in for a wild government-records story, one that dates back to the time that the Department of Health & Human Services was known as the Department of Health, Education and Welfare (HEW). In March 1977, HEW helped out the public by releasing information identifying physicians that had received Medicare reimbursements of $100,000. The department was getting ready to make public more data about Medicare when the Florida Medical Association and some physicians sued to stop the release of information. They prevailed: In October 1979, federal Judge Charles R. Scott issued a permanent injunction against disclosing “any list of annual Medicare reimbursement amounts, for any years, which would personally and individually identify those providers of services under the Medicare program who are members of the recertified class in this case.”

And for the most part, there the matter stood for decades. In 2009, the Wall Street Journal, along with the Center for Public Integrity (CPI) began trying to chip away at the records denial, as outlined in this court document. Following the submission of a Freedom of Information Act request by CPI, the parties reached a settlement with HHS to access something called the “Carrier Standard Analytic File,” essentially a bunch of Medicare data that hadn’t ever seen sunlight. The Wall Street Journal used the information as the basis for a celebrated 2010 series on Medicare; it was a finalist for the Pulitzer Prize, which commended the publication for “its penetration of the shadowy world of fraud and abuse in Medicare, probing previously concealed government databases to identify millions of dollars in waste and corrupt practices.”

The Wall Street Journal wasn’t done, however. In January 2011, Dow Jones filed suit to kill the entire injunction, the better to open access to the whole trove of Medicare reimbursement data. It pushed the clear public interest in the disclosure, noting that Medicare “has grown twenty-fold in nominal dollars, and nearly three-fold as a percentage of the total federal budget” since the 1979 injunction. The May 2013 ruling in the case read in part, “Intervenor Dow Jones & Company, Inc.’s Motion to Vacate Permanent Injunction (Doc. 56) is GRANTED.”

A couple of months later, HHS issued a request for comments on the release of Medicare physician data. The first page of that document references the Wall Street Journal’s quest for these records:

Dow Jones & Company (parent company of The Wall Street Journal) and Real Time Medical Data (RTMD), a consulting firm, sought access to physician-level Medicare payment data in 2011. They formally intervened in the case that had led to the 1979 injunction and petitioned the court to overturn the injunction. HHS joined Dow Jones and RTMD in the case on the grounds that the 1979 injunction was no longer equitable because it was a type of broad, prospective injunctive relief that was no longer authorized under the Privacy Act after the Eleventh Circuit’s decision in Edison v. Department of the Army.

Just last week, HHS notified the American Medical Association and the Florida Medical Association of its plans to “provide the public unprecedented access to information about the number and type of health care services that individual physicians and certain other health care professionals delivered in 2012, and the amount Medicare paid them for those services, beginning not earlier than April 9.” Sunshine!

The trail of legal documents in this case leads directly to the Wall Street Journal, as well as to consumer groups and others who got in the boat and rowed toward transparent waters. The Wall Street Journal wouldn’t say how much money in legal fees it spent to get the injunction undone, but the effort lasted several years, and the company relied on the not-cheap law firm Davis Wright Tremaine LLP. Cutting the Wall Street Journal out of any story about the Medicare documents, accordingly, bears the look of petty obfuscation and deprives the reader of pivotal information on the provenance of public information.

Krughoff, the Consumers’ Checkbook president quoted in The Post’s news story, tells the Erik Wemple Blog, “I think … the Journal definitely deserves to be mentioned.”

Asked how it felt to be left out of some news accounts, Journal spokeswoman Schwartz responded, “We are very proud of our reporting, as well as the persistent legal efforts that led to overturning the longstanding  injunction blocking access to this information. “