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 University Medical Center, Inc., d/b/a University of Louisville Hospital, violated the Open Records Act in the disposition of Samuel Edwards' September 12, 2006, request for copies of "[m]edical records of patient number . . ., . . ., 1 victim of an automobile accident on March 16, 2003." For the reasons that follow, we find that because it does not derive at least twenty-five percent (25%) of the funds expended by it in the Commonwealth of Kentucky from state or local authority funds, within the meaning of KRS 61.870(1)(h), and because it does not otherwise fall within the parameters of KRS 61.870(1)(a) through (k), 2 UMC is not a public agency for open records purposes and its records therefore are not governed by the Open Records Act. 3 Because it is not bound by KRS 61.870 through 61.884, UMC cannot be said to have violated these provisions in the disposition of Mr. Edwards' request.
In supplemental correspondence directed to this office following commencement of Mr. Edwards' appeal, John A. Johnson, an attorney representing UMC, advised us that this client "is a nonprofit corporation organized under KRS § 273," and that "the only material sources of payments that it receives from the Commonwealth are payments under the Medicaid program (including Passport, the local Medicaid managed care plan) and the Revised Quality & Charity Care Trust Agreement among UMC, the Commonwealth, and local government (QCCT) Agreement." Continuing, Mr. Johnson observed:
The QCCT Agreement became effective February 6, 1997, when UMC replaced Galen (formerly Humana) of Virginia, as the operator of University of Louisville Hospital. The QCCT Agreement now in effect was simply a novation of the agreement that state and local governments forged with Humana in 1983. The QCCT Agreement, like Medicaid, provides payment for services rendered to financially and medically needy individuals. Accordingly, those funds are excluded categorically from the statutory calculation.
In support, he cited 93-ORD-90 in which the Attorney General held that "Medicare and Medicaid funds do not constitute 'state or local authority funds' in determining whether a body receives 25% or more of its funds from public coffers." It was Mr. Johnson's position that because UMC operates the University of Louisville Hospital under a "lease/contract agreement," and because payments from the Commonwealth "are received in return for services rendered, " 93-ORD-90 is dispositive of the issue on appeal and UMC cannot properly be characterized as a public agency within the meaning of KRS 61.870 to 61.884. We agree. 4
In 93-ORD-90, this office was asked to determine if a private corporation that employed a group of physicians who taught at the University of Louisville Medical School, but were otherwise privately employed by the corporation, was a public agency for open records purposes because, inter alia, it received medical reimbursement through Medicare and Medicaid for professional services rendered. We examined, in particular, the application of KRS 61.870(1)(h) to that entity observing:
The provision was intended to insure that bodies which receive 25% or more of their funding from state or local authority funds could be held publicly accountable for those funds. It was not intended to subject to public scrutiny the records of private physicians who receive state or federal funds as reimbursement for their services. Other mechanisms exist for holding these individuals accountable for the funds they receive. See, e.g., KRS 205.845 et seq. If private physicians and hospitals were treated as "public agencies, " subject to the Open Records Law, because they receive government funds as direct payment for services rendered to patients, they would be discouraged from serving senior citizens and the poor, who benefit from the Medicare and Medicaid programs.
93-ORD-90, p. 10. On this basis, we concluded that Medicare and Medicaid funds do not constitute "state or local authority funds" for purposes of determining public agency status under KRS 61.870(1)(h). Accord, 00-ORD-91 (Ephraim McDowell Regional Medical Center is not a public agency within the meaning of KRS 61.870(1)(h)); compare, 02-ORD-222 (Seven Counties Services, Inc., is a public agency within the meaning of KRS 61.870(1)(h) because it derives its authority to provide community mental health and mental retardation services from Chapter 210 of the Kentucky Revised Statues and receives forty-two percent of its total funding under its contract with the Cabinet for Health [and Family] Services, and an additional seven percent of its total funding in the form of state or local grants). Because all public monies UMC derives from Medicare and Medicaid represent claims payment or fees for services, as opposed to fixed annual amounts under a contractual agreement with a public agency and terms prescribed by the agency, we believe that the question before us is more closely analogous to the question we addressed in 93-ORD-90 and that the cited open records decision is controlling on the issue of UMC's status as a private entity not governed by the Act.
We proceed no further in our analysis. As a nonprofit corporation that does not derive at least twenty-five percent of its funds from state or local authority funds, or otherwise fall within one or more of the definitional sections of the term "public agency" found at KRS 61.870(1)(a) through (k), University Medical Center, Inc., d/b/a University of Louisville Hospital, is not governed by the Open Records Act and cannot be said to have violated the Act in the disposition of Mr. Edwards' request.
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.
Samuel Edwards, # 172561CCA/LACP. O. Box 900Beattyville, KY 41311
John Johnson, Esq.Stites & HarbisonAegon Center, Suite 1880400 West Market StreetLouisville, KY 40202-3352
James Taylor, PresidentUniversity of Louisville Hospital530 South Jackson StreetLouisville, KY 40202
Footnotes
Footnotes
1 Mr. Edwards identified the patient whose medical records he sought by name and patient number. We omit this information in deference to the patient's privacy rights.
2 KRS 61.870(1)(a) through (k) defines the term "public agency" as used in KRS 61.870 to 61.884. KRS 61.870(1)(h) defines the term "public agency" as "[a]ny body which derives at least twenty-five percent of its funds expended by it in the Commonwealth from state or local authority funds[.]" KRS 61.870(1)(i) defines the term "public agency" as "[a]ny entity where the majority of its governing body is appointed by a public agency as defined in subparagraph (a),(b),(c),(d),(e),(f),(g),(h),(j), or (k) of this subjection; by a member or employee of such a public agency, or by any combination thereof[.]"
3 Assuming, arguendo, that UMC was a publicly owned hospital, and therefore a public agency for open records purposes, we concur with UMC in the view that medical records housed therein would not be publicly accessible insofar as "medical records of . . . patients in a public hospital are not related to the functioning of the hospital, the activities carried on by the hospital, its programs, or its operations [, . . .and] patients of a publicly owned hospital have as great an expectation that their medical records will not be subject to public scrutiny as do the patients of private hospitals." Hardin County v. Valentine, Ky. App., 849 S.W.2d 151, 152 (1995).
4 In response to this office's inquiry concerning how the members of UMC's governing body are appointed, and the consequent application of KRS 61.870(1)(i) to that body, Mr. Johnson advised:
Its governing body consists of twelve voting directors. The University of Louisville appoints 6 directors. Jewish Hospital & St. Mary's Healthcare, Inc., (JHSMH) appoints 3 directors. Norton Healthcare, Inc. (Norton) also appoints 3 directors. JHSMH and Norton are private, not-for-profit entities and not public agencies. The statute obviously contemplates a situation in which a public agency controls the entity in question by appointing more than 50% of the entity's governing body. Here, the University of Louisville (which we concede is a public agency) appoints one-half of the governing body. Accordingly, it does not hold the requisite control, and KRS 61.870(1)(i) is not applicable.