Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Cabinet for Health and Family Services violated the Open Records Act in denying Brenda J. Wagner's September 26, 2005, request for a copy of the investigative report prepared by the Cabinet following the submission of a complaint by Ms. Wagner concerning the death of her mother at Village Care Nursing Home in Erlanger, Kentucky. Ms. Wagner is the court-appointed administratrix for her mother's estate and asserts her entitlement to the report as administratrix. 1 For the reasons that follow, we find that although the Cabinet advanced a good faith argument based on this office's decision in 03-ORD-194, that decision was incorrect in its result. Accordingly, it is the decision of this office that the Cabinet improperly denied Ms. Wagner's request. To the extent that 03-ORD-194 is inconsistent with this decision, it is hereby overruled.
In denying Ms. Wagner's request, the Cabinet relied on KRS 209.140, explaining that she did "not meet the eligibility for the records as defined in [that statute] which delineates who is entitled to specific information." Elaborating on this position in correspondence directed to this office following commencement of Ms. Wagner's appeal, Cabinet counsel observed:
Under the express terms of [KRS 209], the Cabinet must withhold all information acquired as the result of an investigation unless Ms. Wagner can demonstrate that she fits within the exceptions found at subsections (1) through (5). See 96-ORD-6; 98-ORD-97. The Cabinet understands Ms. Wagner's position and is not unsympathetic to her plight. In 2003, the Cabinet proposed an amendment to KRS 209.140 to allow executors and administrators of estates of deceased persons alleged to be victims of abuse, neglect or exploitation to obtain a copy of records without court order. Unfortunately, the General Assembly chose not to enact that proposed amendment to the law. That would be the most recent expression of legislative intent on the application of this statute.
Ms. Wagner asserts that as the agent of the estate, she succeeds to the rights of her deceased mother. With respect to the privacy argument, the terms of the Health Insurance Portability and Accountability Act of 1997 and implementing regulations extend the rights to protection of confidential information relating to a deceased person. Title 45 CFR 164.502(g)(4) limits the authority of an executor to act in this matter to that authority under KRS 209.140. By the terms of the state statute applicable in this matter, Ms. Wagner has no access to these records absent an order of the court specifically directing the agency to release these records to her.
In support, counsel cited 03-ORD-194 in which this office affirmed the Cabinet's denial of a similar request under the same legal theory. Because the analysis underlying this legal theory is flawed, we find that the Cabinet's position is untenable.
The statute upon which the Cabinet relies, KRS 209.140, provides as follows:
All information obtained by the department staff or its delegated representative, as a result of an investigation made pursuant to this chapter, shall not be divulged to anyone except:
(1) Persons suspected of abuse or neglect or exploitation, provided that in such cases names of informants may be withheld, unless ordered by the court;
(2) Persons within the department or cabinet with a legitimate interest or responsibility related to the case;
(3) Other medical, psychological, or social service agencies, or law enforcement agencies that have a legitimate interest in the case;
(4) Cases where a court orders release of such information; and
(5) The alleged abused or neglected or exploited person.
In 03-ORD-194, this office reaffirmed an older line of decisions recognizing that unless the requester fell within one of the excepted categories codified at KRS 209.140(1) through (5), the Cabinet was foreclosed from releasing "information obtained . . . as a result of an investigation made pursuant to Chapter 209" to that requester. Because KRS 209.140 made no provision for disclosure of the protected information to the personal representative of the decedent, we determined that the Cabinet properly denied the personal representative's request. For the first time, however, we factored into our analysis the application of the Health Insurance Portability and Accountability Act of 1997, and implementing regulations, specifically 45 CFR 164.502(g)(4). The latter regulation provides:
Implementation specification: Deceased individuals. If under applic-able law an executor, administrator, or other person has authority to act on behalf of a deceased individual or of the individual's estate, a covered entity must treat such person as a personal representative under this subchapter, with respect to protected health information relevant to such personal representation. (Emphasis added.)
The Cabinet argued, and this office agreed, that the "applicable state law" was KRS 209.140. A closer review of the relevant portions of HIPAA, and the implementing regulations, does not support this view.
It is the decision of this office that the "applicable law" referenced in 45 CFR 164.502(g)(4) is found in Chapter 395 of the Kentucky Revised Statutes, relating to personal representatives, 2 and the power statutorily vested in them under KRS 395.195 and 395.196 , et seq. Among these powers is the power to "[p]rosecute or defend claims, or proceedings in any jurisdiction for the protection of the estate," which is reposed on the personal representative by operation of KRS 395.195(19), and any residual power "which the personal representative ha[d] at the time of enactment of . . . KRS 395.195." KRS 395.196. Ms. Wagner's authority to act for her deceased mother derives from her authority under KRS 395 to act on behalf of the estate. Pursuant to 45 CFR 164.502(g)(1), a covered entity, here the Cabinet, "must . . . 3 treat a personal representative as the individual for purposes of this subchapter." As administratrix of her mother's estate, Ms. Wagner is her mother's personal representative and stands in her mother shoes. She must be treated "as the individual," here, her mother.
Pursuant to KRS 209.140(5), Ms. Wagner's mother would have been entitled to a copy of the disputed reports as "[t]he alleged abused or neglected or exploited person." As noted, 45 CFR 164.502(g)(1) and (4) require the Cabinet to treat Ms. Wagner as the Cabinet would have treated her mother. Accordingly, the Cabinet must provide a copy of the report to Ms. Wagner just as it would have provided her mother with a copy were she alive.
Resolution of this issue turns on the proper interpretation of the phrase "applicable law" appearing in 45 CFR 164.502(g)(4). KRS 209.140 does not vest an executor, administrator, or any other person with authority to act on behalf of a deceased individual or the individual's estate, but is instead a confidentiality provision the terms of which are engrafted upon the Open Records law by operation of KRS 61.878(1)(l). 4 It is to Chapter 395 of the Kentucky Revised Statutes that we look for the grant of "authority to act on behalf of a deceased individual or of the individual's estate," and that law, operating in tandem with 45 CFR 164.502(g)(4), requires the Cabinet to accord Ms. Wagner, as her mother's personal representative, the same treatment it would have accorded her mother. As Ms. Wagner's mother would have been entitled to a copy of the report per KRS 209.140(5), so Ms. Wagner is entitled to a copy. To the extent that 03-ORD-194 is inconsistent with this view, it is hereby overruled.
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.
Footnotes
Footnotes
1 Ms. Wagner also asserts her right to the report as the individual who filed the complaint that spawned the investigation. Because we affirm her right of access under the terms of the Health Insurance Portability and Accountability Act, and implementing regulations found at 45 CFR 164.502, coupled with KRS 209.140(5), we do not address this argument.
2 KRS 395.030 authorizes district court to appoint an administrator for the estate of a person who dies intestate. KRS 395.001 includes within the definition of the term "fiduciary" a court appointed administrator.
3 45 CFR 164.502(g)(1), makes exceptions from this rule for cases involving unemancipated minors (45 CFR 164.502(g)(3)) and cases in which the covered entity believes the personal representative has or may subject the individual he or she represents to abuse or neglect or otherwise endanger the individual (45 CFR 165.502(g)(5).)
4 KRS 61.878(1)(l) authorizes public agencies to withhold:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.