Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Cabinet for Health and Family Services -- Office of Inspector General, Division of Health Care violated the Kentucky Open Records Act in the disposition of Jennifer Hewlett's February 27, 2012, request for the "contents of . . . the investigative file" relating to her complaint regarding the care that her sister received at Regional Medical Center of Hopkins County. 1 Although the Western Enforcement Branch of the CHFS -- OIG/DHC failed to issue a timely written response per KRS 61.880(1), or, in the alternative, comply with KRS 61.872(5) if appropriate, on appeal CHFS - OIG has acknowledged this procedural violation and explained that "normal procedure for all open records requests received by OIG/DHC staff" is for the recipient of such a request to forward the request to "OIG/DHC open records custodian, Margaret ("Gail") Huber, at the central office in Frankfort." Accordingly, this office will not unnecessarily lengthen the instant decision with a recitation of the well-established law regarding application of KRS 61.880(1), but instead refers the parties to, for example, 05-ORD-134, 07-ORD-030, 07-ORD-123, 08-ORD-014, 10-ORD-080, and 12-ORD-043, all of which involved various divisions of CHFS, for the relevant analysis.
Upon receipt of Ms. Hewlett's appeal, Ms. Huber expedited the processing of Ms. Hewlett's request, apologizing for any inconvenience, and ultimately advising that "a portion of the records do not meet criteria for release by the [OIG]." Specifically, Ms. Huber explained, "Section 1864 of the Social Security Act provides that when the OIG conducts complaint investigations at Centers for Medicare and Medicaid Service (CMS) certified facilities, it does so as an agent of CMS, said records are the property of CMS and can only be released by CMS." In this instance, CMS also directed the OIG "not to release these records." Ms. Huber also explained that Ms. Hewlett could file a Freedom of Information Act request by contacting FOIA Coordinator Precious Boudouin, and provided her contact information. CHFS -- OIG released the Form CMS-2567 (Statement of Deficiencies). Although CHFS - OIG initially failed to reference 45 C.F.R. § 2.3, incorporated into the Open Records Act by operation of KRS 61.878(1)(k), in support of its denial, and its belated response thus lacked the specificity required under KRS 61.880(1), 2 the agency later provided memoranda from CMS containing the applicable disclosure rules, and explained how the federal regulation (s) upon which it was implicitly relying applied to the records being withheld. As in 09-ORD-022, this office finds that applicable "statutory references and accompanying explanations should have appeared in the OIG's original response" and the omission thereof constituted a violation of KRS 61.880(1), but "the language of the cited regulations supports its partial denial of [the] request[.]" Id., p. 4.
In that decision, the Attorney General was asked to review a denial by CHFS - OIG of a request for "'a copy of the investigation report resulting from complaint KY00011312 . . . [filed against the] McCreary Health and Rehabilitation Center in Pine Knot, Kentucky." Having learned that the Statement of Deficiencies, or CMS-2567 provided to her did not constitute the complete investigation by the OIG (as in this appeal) the requester contacted the OIG, and was informed that that she could no longer obtain copies of such investigative reports from the OIG, but could request copies of "'the actual ACTS Complaint Investigation reports/narratives . . . by filing a [FOIA] request with the [CMS].'" 09-ORD-022, p. 2. On appeal the OIG explained that it "performs certification tasks at health care facilities as the 'State Agency' under contract with CMS and in accordance with the Social Security Act. The requested investigation was conducted pursuant to that contract and to ascertain compliance with various federal laws and regulations. " Id., pp. 2-3. As the OIGA further advised, the documents generated as a result of the investigation were then entered "into the Automated Complaint Tracking System [ACTS] of records." [Footnote omitted.] Id.
Similarly, in this instance, upon receiving a copy of the Statement of Deficiencies in response to her request/appeal, Ms. Hewlett advised that she was dissatisfied. Ms. Hewlett clarified that she sought records of the "STATE investigation" conducted by OIG investigator Jill Alexander. (Original emphasis.) In accordance with KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, this office then asked legal counsel for the OIG to please clarify "whether additional responsive documents exist in the custody or control of CHFS, and which records, if any, CHFS is withholding and on what basis." Counsel reiterated that "when OIG conducts investigations at CMS facilities, it does so as an agent of CMS, and the records are the property of CMS. These records must be obtained by a FOIA request directed to . . . the CMS [FOIA] Coordinator." Pursuant to "CMS policy," counsel observed, "we are only permitted to release a copy of the Form CMS-2567." Attached to counsel's e-mail was a copy of "CMS Policy Memorandum S&C-11-39, which provides guidance for State Survey Agencies responding to Requests for survey documents." 3 Counsel also forwarded "S&C-10-01, which addresses requests for joint Federal/State documents." 4
In response to subsequent inquiries by Ms. Hewlett and this office, legal counsel for the OIG further explained that all existing responsive documents, with the exception of the CMS-2567 provided, i.e. , "(surveyor notes or worksheets regarding Medicare/Medicaid-certified health care facilities) must be submitted to CMS, because the Regional Medical Center of Hopkins County is a Medicare/Medicaid-certified facility." 5 Counsel also confirmed, in response to our inquiry as to whether CHFS -- OIG currently possesses "any documents listed under the heading 'Survey Documents the SA May Release' or 'Other Survey Documents the SA May Release (New Guidance)' on the September 16, 2011, CMS Memo [S&C-11-39] provided to us, aside from the Statement of Deficiencies," that it does not. Because no deficiencies were substantiated, he continued, no "document on that list was created as part of this investigation[.]" Rather, the documents in dispute are "'Federal Documents Maintained by the SA["] (p. 2), because Regional Medical Center of Hopkins County is both a Medicare and Medicaid provider (not a Medicaid-only provider) ." In sum, the OIG maintained, the documents "were acquired by Kentucky while performing functions under the 1864 Agreement and are subject to CMS disclosure rules." A review of the authorities upon which the OIG ultimately relied, including the referenced memoranda, validates the agency's final disposition of Ms. Hewlett's request.
KRS 61.878(1)(k) requires public agencies to withhold "[a]ll public records or information the disclosure of which is prohibited by federal law or regulation. " See, e.g., 01-ORD-25 (affirming nondisclosure of information protected by the Driver's Privacy Protection Act, 18 U.S.C. § 2721-25); 07-ORD-037 (affirming nondisclosure of record protected by Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g). Although not specifically referenced, as in 09-ORD-022, the federal regulation implicated here is 45 C.F.R. § 2.3, pursuant to which:
No employee or former employee of the DHHS may provide testimony or produce documents in any proceedings to which this part applies concerning information acquired in the course of performing official duties or because of the person's official relationship with the Department unless authorized by the Agency head pursuant to this part based on a determination by the Agency head, after consultation with the Office of the General Counsel, that compliance with the request would promote the objectives of the Department.
The OIG did not provide this office with relevant portions of its contract with CMS. Nevertheless, just as in 09-ORD-022, this office trusts that a contractual relationship exists, and the OIG is therefore bound to follow this "Policy on presentation of testimony and production of documents. " A copy of that decision is attached hereto and incorporated by reference. "Although it was dilatory in failing to invoke the applicable federal regulations, and state exemption incorporating those regulations into the Open Records Act, the OIG properly relied on 45 C.F.R. § 2.3 in partially denying Mr. [Hewlett's] request" for the investigative report/file regarding her complaint against Regional Medical Center of Hopkins County as it was generated under its contract with CMS and is therefore "subject to CMS disclosure rules." 09-ORD-022, p. 5. See 09-ORD-059 (affirming denial by OIG of request for case information derived from Online Survey Certification and Reporting (OSCAR) and Automated Survey Processing Environment (ASPEN) per 45 C.F.R. § 2.3 and 09-ORD-022).
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.
Distributed to:
Jennifer HewlettTimothy J. Salansky
Footnotes
Footnotes
1 According to a February 2, 2012, letter from then Regional Program Director for the Western Enforcement Branch of the CHFS -- OIG/DHC, Keith Baker, the subject investigation was "conducted in accordance with KRS 216B.042(2), which states that the [CHFS] may authorize its representatives to enter upon the premises of any health care facility for the purpose of inspection." The purpose of the investigation, he advised, "was to determine if the facility was in compliance with regulatory requirements and to determine if the allegation was substantiated (the allegation was verified by evidence) or unsubstantiated (no evidence or insufficient evidence to verify the allegation)." Evidence obtained from the investigation "verified that the allegation was unsubstantiated with no regulatory violations."
2 This office again declines to belabor the point, as the decisions referenced above confirm that CHFS is well-aware of its procedural obligations under KRS 61.880(1). CHFS is encouraged to review those decisions and the authorities referenced therein to avoid future violations of this nature.
3 This Policy Memorandum was released October 2, 2009, and establishes "the process for States and CMS regional offices to follow when an employee or former employee of the Department for Health and Human Services (DHHS) is requested or subpoenaed to provide certain documents in the possession of DHHS (other than the Food and Drug Administration), . . . ." It specifically provides that "information and documents the SA acquires while performing functions under the SA's Agreement with the Secretary are subject to CMS disclosure rules. This means that the SA must comply with 42 CFR Part 401, SOM §§ 3300 through 3320, and SOM §§ 7900 through 7907 in responding to request for such documents." (Original emphasis.) S&C-10-01, it notes, "established specific procedures for the processing of such records."
4 According to the Background section of this memorandum, "45 C.F.R. Part 2, entitled 'Testimony by Employees and the Production of Documents in Proceedings Where the United States is Not a Party' was initially published in 52 FR 37146 on October 5, 1987[.] It establishes the rules to be followed when an employee or former employee of the [DHHS] is requested or subpoenaed to provide testimony in a deposition, trial, or other similar proceeding concerning information acquired in the course of performing official duties or because of such person's official capacity with DHHS."
5 Counsel further advised that he spoke with Donna Mott, a colleague of Ms. Boudouin's, at CMS in Atlanta, who advised that Ms. Boudouin was out of the office until April 10; however, counsel explained, Ms. Mott requested that the OIG "pull the requested records and send them, along with your request, to her office in Atlanta. She will then forward them to the Baltimore CMS office for a 'disclosure review[.]'" Ms. Hewlett should receive notification from CMS in Atlanta "that they have received her request and have forwarded the requested records to Baltimore for the required review. CMS will provide Ms. Hewlett with the contact information of the Baltimore office so that she can check on the progress of the review." It was counsel's understanding that Ms. Hewlett "will not have to send a separate [FOIA] Request to CMS. CMS will accept her open records request as a FOIA request." To its credit, as the foregoing summary illustrates, the OIG has made an effort to expedite the processing of Ms. Hewlett's FOIA request. The referenced authorities validate its position that such records cannot be released "without going through this process."