Opinion
Opinion By: Albert B. Chandler III,Attorney General;James M. Ringo,Assistant Attorney General
Open Records Decision
The issue in this appeal is whether the Cabinet for Health Services (CHS) violated the Open Records Act in its actions relative to the request of Mark Hebert for a copy of the statement of deficiencies issued to the Oakwood Intermediate Care Facility for the Mentally Retarded and Developmentally Disabled in Somerset (Oakwood). Under the facts of this case, we conclude that the actions of CHS were in substantial compliance with the Open Records Act.
Responding to Mr. Hebert's request, Ellen M. Hessen, General Counsel, CHS, explained:
You are correct that upon your initial request for the statement of deficiencies (SOD), you were advised that the document in question was considered a preliminary document in that the facility had not yet filed an acceptable plan of correction (POC) in response. The statement of deficiency is construed to be preliminary until the plan o[f] correction is accepted because the citations of facts or conclusions within the SOD are subject to challenge or clarification by the facility through its plan of correction. If there are errors contained within a SOD, the facility may call those errors to the attention of the Office of the Inspector General through its POC. Moreover, the statement of deficiencies does not give a complete picture of conditions at the facility in question without the accompanying plan of correction.
A plan of correction was received from the Oakwood facility but has been returned as unacceptable. It is the understanding of the Office of the General Counsel that the tendered plan was not sufficiently specific in its responses to cited deficiencies, and in its narrative of corrective action to be taken, it crossed-referenced sections of the statement of deficiencies which had [n]o relation to the subject being addressed in the narrative. A new plan of correction is due from Oakwood on Monday, November 27th. At that time, the POC will be reviewed again, and if acceptable, will be subject to disclosure along with the accompanying statement of deficiencies at that time. Until the plan of correction is accepted, access to the statement of deficiencies must be denied pursuant to KRS 61.878(1)[i] and [j] in that the document constitutes a preliminary draft or memorandum in which opinions are expressed and policies formulated or recommended and not intended to give notice of final agency action until acceptance of a plan of correction.
In his letter of appeal, dated November 28, 2000, Mr. Hebert asks this office to determine whether the statement of deficiency is a final document, subject to public disclosure. In his letter, Mr. Herbert argues, in part:
When state inspectors (surveyors) find problems at a nursing home or day care, they issue a "statement of deficiencies". That statement is essentially the inspectors' view of the violations at that licensed facility. It is my view that this is a final document, just as a mine inspector's report, a restaurant inspector's report, or any other inspection report is available as soon as it is finished.
But it is the Health Services' Cabinet's view that the "statement of deficiencies" is not open to public inspection until the facility has a chance to submit a "plan of correction" AND that plan is finally approved by the Cabinet. In other words, it could be months, as it is the case of Oakwood's survey, before the public has access to the problems found by state inspectors.
After receipt of this office's "Notification to Agency of Receipt of Open Records Appeal," John W. Walker, Assistant General Counsel, by letter dated December 6, 2000, provided this office with a response to the issues raised in the appeal. In his response, Mr. Walker advised in part:
It is the position of the Office of the Inspector General that a Statement of Deficiencies is a preliminary document until a Plan of Correction is received and approved. The activity of the Office relating to conditions in the facility is not complete with the issuance of a Statement of Deficiency, and the agency's findings, conclusions, and responses to the receipt of a plan of correction shape subsequent actions on a facility's licensure status under KRS Chapters 216 and 216B. The statement only gives one view of the conditions at a facility, and the facility has the right to contest that view and to correct any facts found by the agency to exist and which, in the agency's opinion, contributed to the circumstances leading to the finding of licensure deficiencies. A complete view of conditions at a facility is not possible without both the initial statement and the follow up plan of correction. While the Cabinet appreciates Mr. Hebert's opinion on the need for access to the Statement of Deficiencies, premature release of the document without the accompanying plan of correction could lead to confusion over a facility's status. The public is better served with access to both documents at the same time rather than just one.
This position is consistent with respect to any health care facility regulated through the Office of the Inspector General, and is based upon experience over the years. Please keep in mind that under the Kentucky Long Term Care Reform Law of 1982, citations for violations which are deemed to pose an imminent threat to life, health or safety, together with those citations reflecting conditions which impact quality of care are open records subject to immediate access upon issuance. It is certainly not the intent of the Cabinet to compromise the ability of the public to learn about conditions in long term facilities, and the position taken by the Cabinet will assure a more thorough and complete picture of conditions at a facility and the extent to which a facility may respond to questioned circumstances or events - a factor which often speaks as loudly about quality of care as the initial findings contained in a Statement of Deficiencies alone.
Pursuant to KRS 61.880(2), we requested the CHS to provide this office with an additional response elaborating on its position that the Statement of Deficiencies was a preliminary document and further asked the agency to provide a copy of the Statement for our in camera review.
In a supplemental response on behalf of CHS, Mr. Walker expanded the agency's original response by explaining, in relevant part:
The survey process for long-term care facilities is a function of the Office of the Inspector General carried out under the watchful eye of the federal Health Care Financing Administration (HCFA). The Cabinet has reviewed the federal materials and discovered clarifying language on the question of public access to Statements of Deficiency. See 42 CFR 488.325(d). The federal agency has issued a state operations manual for provider certification, of which Chapter VII addresses the survey and enforcement process for skilled nursing facilities and nursing facilities. Section 7903 of the manual is entitled "Time Periods for Disclosing SNF/NF Information". That section states, in full:
Clearly, within its manual governing survey and enforcement of SNF/NF, the federal agency allows up to fourteen (14) days before a survey report must be made public. The rationale for the delay in release of data (to obtain a provider response or PoC prior to disclosure) is consistent with the position of the state agency. . . .
We are asked to determine whether CHS violated the Open Records Act in denying Mr. Hebert's request for a copy of the requested statement of deficiencies issued to Oakwood. For the reasons that follow, we conclude that actions of the agency were in substantial compliance with the Act.
In his supplemental response, Mr. Walker explained that the survey process for long term facilities was governed by guidelines issued by the federal Health Care Financing Administration (HCFA). The state operations manual issued by HCFA directs that, upon a public request, a statement of deficiency must be disclosed within 14 calendar days after the statement is made available to the facility. Although the manual states that the statement of deficiency could be disclosed as quickly as the day after it is made available to the facility, it made be disclosed as late as 14 days afterward, at the discretion of the state agency.
42 CFR 488.325(d), concerning the disclosure of surveys and activities by the State or HCCFA, provides:
(d) When information must be disclosed. The disclosing agency must make available to the public, upon the public's request, information concerning all surveys and certifications of SNFs and NFs, including statements of deficiencies, separate listings of any isolated deficiencies that constitute no actual harm, and plans of correction (which contain any provider response to the deficiency statement) within 14 calendar days after each item is made available to the facility.
KRS 61.878(1)(k) provides for the nondisclosure of:
All public records or information the disclosure of which is prohibited by federal law or regulation.
This statute, in tandem with 42 CFR 488.325(d), directs that a statement of deficiency must be disclosed within 14 calendar days after it is made available to the facility. Under these authorities, CHS could deny access to the statement of deficiencies for a period of up to 14 days after receipt of the document by Oakwood.
It is unclear from the facts before us whether the statements of deficiencies were provided within the required time frame. Along with its response to the letter of appeal, CHS provided this office with a copy of its letter to Mr. Hebert, which indicated he was provided with the requested records on December 6, 2000. If the statement of deficiency was provided outside of the 14-day time frame, it was deficient as to the requirements of the federal regulation. CHS advised in its supplemental response that its policies on time frames for release are being revised to reflect the federal guidelines.
We do note, as CHS explained in its response to the letter of appeal, "citations for violations which are deemed to pose an imminent threat to life, health or safety, together with those citations reflecting conditions which impact quality of care are open records subject to immediate access upon issuance. " In the instant case, CHS advised that a series of such "Type A" violations were issued at Oakwood and became available immediately.
We acknowledge the agency's position that the public may be better informed as to the status of a facility by having copies of both the statement of deficiency and the plan of correction. Nevertheless, we find that 42 CFR 488.325(d), in tandem with KRS 61.878(1)(k), controls the time frame for disclosure of the statement of deficiency. Under the facts of this case, we conclude that the actions of CHS were in substantial compliance with the Open Records Act.
Because the foregoing is dispositive of the instant appeal, we need not address other arguments presented by CHS in support of its actions.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding. Mark HebertWHAS 11520 West Chestnut StreetLouisville, KY 40202
Ellen M. HessenGeneral CounselCabinet for Health Services275 East Main Street - 4 WestFrankfort, KY 40601-0001
John H. WalkerAssistant General CounselCabinet for Health Services275 East Main StreetFrankfort, KY 40601