During the summer, New York Attorney General Cuomo threatened to obtain injunctions against a group of major health insurers which had implemented physician ranking programs to identify to their insureds physicians who met certain quality of care and efficiency criteria. Cuomo stated that the rankings had "a strong likelihood of causing consumer confusion, if not deception," and was further concerned that (1) the criteria used might be faulty, (2) consumers would be encouraged to use cheap doctors rather than good doctors, and (3) the insurer's profit motive "may" affect the accuracy of its quality rankings. Cuomo felt that the profit motive was a conflict of interest, because high quality physicians cost more. The Attorney General, however, did not object to meaningful and accurate efforts to measure and publicly report the comparative quality of physicians if the process was transparent, accurate and subject to oversight.

Within weeks, all seven major health insurers in New York, including Aetna, Cigna, MVP Health Care and UnitedHealthcare, reached agreement with the New York Attorney General permitting them to implement doctor ranking models with certain safeguards. The insurers' agreements with the Attorney General were entered with the concurrence of the American Medical Association and Consumers Union. Based upon the participation of the American Medical Association and the imprimatur of the New York Attorney General's office, it is likely that the New York physician ranking model will be adopted by other insurers and implemented nationally with a much lower risk of successful litigation. Some insurers, including Aetna, have already indicated that they intend to apply the New York doctor ranking model to physicians nationally.

The New York doctor ranking model requires the following protective features:

  • Ratings will include a "quality of performance" rating and a "cost-efficiency" rating, which will be independently calculated and separately disclosed. Insurers are prohibited from using rankings based solely on cost-efficiency.
  • If a total combined ranking is also disclosed, the relative weight of the quality of performance and cost-efficiency measures must be disclosed.
  • Full transparency to consumers and physicians of the data and bases used in ranking physicians, the specific criteria used and the basis for attributing patients to physicians for measurement purposes will be asssured. In addition, rankings under the model must be based upon the most recent data, and on a comprehensive episode of care, with appropriate risk and patient characteristic adjustments and must compare physicians within the same specialty within an "appropriate" geographical market. The sample size used must be sufficient to permit accurate, reliable and valid measurements.
  • Appointment of a nationally recognized standard-setting independent 501(c)(3) organization as an oversight monitor to review all aspects of the ranking program and its disclosures and report to the Attorney General's office semiannually.
  • Measures used must be based on nationally recognized evidenced-based and/or consensus-based clinical recommendations or guidelines. Where measures endorsed by the National Quality Forum are available, they must be used. Where those measures are unavailable, measures endorsed by the AQA Alliance (formerly the Ambulatory Care Quality Alliance) and accreditors must be used. If neither measure is available or usable, insurers can use measures based on other bona fide nationally recognized guidelines. The process for establishing the measures is similar to that used by the Centers for Medicare & Medicaid Services ("CMS") in its Physician Quality Reporting Initiative. In addition, the insurers are obliged to support the development and use of standardized measures and to work with the oversight monitor to consider using pooled data to supplement the insurer's own data. Finally, the measures should include a measure designed to evaluate patients' experiences.
  • Adoption of mechanisms for physicians to appeal rankings and for consumers to register complaints with the insurer and the oversight monitor. Interestingly, in the case of Empire HealthChoice, the Attorney General largely excepted hospital and provider cost comparison or shopping tools and customer/patient survey or satisfaction tools from the requirements of the settlements.

Following the Attorney General's settlements, New York's Senate Majority Leader and Assembly Speaker announced that they would introduce and support legislation implementing a physician ranking similar to the Attorney General's system.

At about the same time, however, availability and transparency of physician data at the federal level took a different direction when the U.S. Department of Health and Human Services ("HHS") appealed a federal court's decision ordering the release of information regarding Medicare physician payments, under the Freedom of Information Act ("FOIA"), to a consumer organization. See Consumers' Checkbook, Center for the Study of Services v. United States Department of Health and Human Services. While the AMA, the National Partnership for Women and Families, and Consumers Union all supported New York's physician ranking model, the unity broke down on the release of Medicare claims data under FOIA when the AMA urged HHS to oppose the release of Medicare claims data under FOIA. The AMA's objection appears to be based upon the fact that data released under FOIA would not be subject to use restrictions similar to those imposed by the New York Attorney General. The National Partnership for Women and Families and Consumers Union supported the Medicare FOIA data release.