The Robert Wood Johnson Foundation has sponsored a series of articles on legal barriers to health information that lays before us the reality of how difficult transparency efforts and moves to promote quality outcomes through financial incentives could become. In an article by Rosenbaum, Kornblet, and Borzi, the authors examine a number of possible allegations that could be brought against health plans that try to use some form of physician tiering based on quality or efficiency measures.

But first the authors issued a cautionary note, that for most of us, would seem obvious, but apparently still needs mentioning. They warn that

“Regardless of the legal theory chosen . . . certain basic attributes in current health plan practices are sure to trigger one or more theories and allegations: (1) secrecy in both the standards used and the weights used to perform rankings; (2) the absence of a transparent rational basis for the methods chosen; and (3) the absence of a process by which physicians can examine the data on which their rankings rest and challenge errors in data or methodology.”

To be honest, I don’t know of a reputable health plan that in this litigious day and age would be so lacking in common sense that they would knowingly go against this advice. If anything, health plans are too highly attuned to the risk of legal challenges. Progress in improving care will more likely be impeded rather than be pursued with the kind of reckless abandon implied here. But it is also my experience that no matter what reasonable precautions you take, lawsuits seem to materialize anyway and are a constant source of concern and expense.

In a nutshell, these are some of the legal strategies, according to the authors, that could be used by providers against health plans:

• Allegations of violation of statutory or common law fair process/due process requirements

• Allegations of violation of federal laws regulating health plans, state insurance laws, and more generalized consumer fraud statutes

• Allegations of violation of defamation and libel common law principles or statutes

• Allegations of violation of federal and state laws applicable to certain categories of sponsored health plans

• Allegations of intentional interference with contract/breach of contract

• Allegations of restraint of trade

• Allegations of violation of civil rights laws

It is beyond this post to go into any further detail about these strategies. But it’s easy to see that there’s a lot of legal ground that has to be covered here before physicians and health plans can become comfortable with each other around these issues, and before this national agenda can get the type of momentum it needs to make meaningful gains in the quality of health care.