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 violated the Kentucky Open Records Act in denying Cathy L. Stickel's July 18, 2012, request for "[a]ny and all documentation related to or generated as a result of" the Independent Informal Dispute Resolution requested by her client, Christian Health Center of Corbin, per 42 C.F.R. § 488.331, 1 and specifically, the "recommendations of the independent contractor who performed the desk review," and "[a]ll documentation or information forwarded to the [CHFS] by the independent contractor related to the IIDR, as referenced in the Cabinet's July 3, 2012, correspondence." 2 In a timely written response, Public Records Custodian Gail Huber advised that such records did not satisfy the criteria for disclosure and quoted KRS 61.878(1)(k), pursuant to which public agencies may withhold "[a]ll public records or information the disclosure of which is prohibited by federal law or regulation. " 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 Services (CMS) certified facilities, it does so as an agent of CMS, and said records are the property of CMS and can only be released by CMS." Accordingly, the OIG advised Ms. Stickel to submit her written request to CMS for processing as a Freedom of Information (FOIA) request and provided her with contact information for the FOIA Coordinator. This appeal followed.
Upon receiving notification of Ms. Stickels' appeal from this office, Assistant Counsel Timothy J. Salansky responded on behalf of the OIG, advising that "OIG was instructed by CMS' Atlanta Regional Office not to release any IIDR information and to refer such request to Precious Boudouin, [FOIA] Coordinator for the CMS, Atlanta Regional Office." Mr. Salansky reaffirmed the agency's reliance on KRS 61.878(1)(k), citing 12-ORD-084 in support of its position. He further explained:
Attached please find a copy of CMS Policy Memorandum S&C 12-08-NH, which addresses, "Federal Requirements for the Independent Informal Dispute Resolution (Independent IDR) Process for Nursing Homes -- Interim Advance Guidance." The Interim Advance Guidelines provide, in the last paragraph of Section 7213.5, as follows:
The documents requested by Ms. Stickels are 'public records or information the disclosure of which is prohibited by federal law or regulation. ' Moreover, OIG was acting in its capacity as the agent of CMS in conducting the IIDR. Therefore, OIG stands by its decision not to release the requested records.
This office recently affirmed the fundamental position of the OIG with regard to disclosure of records pertaining to complaint investigations it conducts under its contractual relationship with CMS at CMS certified facilities in 12-ORD-084 (adopting 09-ORD-022 in holding that OIG "properly denied request for documents relating to specified investigation of patient care at Regional Medical Center of Hopkins County, which is both a Medicare and Medicaid provider, on the basis of 45 C.F.R. § 2.3, incorporated into the Act by operation of KRS 61.878(1)(k), as the documents were generated pursuant to its contract with the [CMS]," and "thus are subject to CMS disclosure rules"). 3 The requester in that case sought a copy of the investigative file and the subject investigation "'verified that the allegation was unsubstantiated with no regulatory violations,'" 12-ORD-084, p. 1, note 1, whereas CHC was "found to be not in substantial compliance with the requisite [CMS] conditions of participation" and was "offered the opportunity to dispute the cited deficiencies through the [IIDR] process" 4 here. Nevertheless, the reasoning upon which that decision was based can be logically extended to "any and all documentation related to or generated as a result of" an IIDR in the possession of the OIG as the OIG was acting in its capacity as the agent of CMS in both cases. See 09-ORD-059 (extending the logic of 09-ORD-022 in 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). As before, CMS also specifically instructed the OIG not to release any responsive documents.
Because Christian Health Center is a CMS certified facility, and the OIG was acting in its capacity as the agent of CMS in conducting the IIDR, 5 just as it acted in that capacity when conducting the complaint investigation of the CMS certified facility to which the records being sought related in 12-ORD-084, the reasoning contained in 12-ORD-084 is equally applicable on the facts presented. A copy of that decision is attached hereto and incorporated by reference. See also 09-ORD-022 (copy enclosed). In sum, the records withheld are CMS records and subject to CMS disclosure rules, pursuant to which disclosure by the OIG is prohibited. The denial is affirmed.
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:
Cathy L. StickelsGail HuberTimothy J. Salansky
Footnotes
Footnotes
1 42 C.F.R. 488.331 provides:
(a) Opportunity to refute survey findings.
(1) For non-Federal surveys, the State must offer a facility an informal opportunity, at the facility's request, to dispute survey findings upon the facility's receipt of the official statement of deficiencies.
(2) For federal surveys, CMS offers a facility an informal opportunity, at the facility's request, to dispute survey findings upon the facility's receipt of the official statement of deficiencies.
2 In her September 6, 2012, letter of appeal, Ms. Stickels explained that by letter dated July 3, 2012, CHC was informed that a "desk review had been performed by an independent contractor and their 'recommendations' were forwarded to the OIG. CHC was not provided a copy of the independent contractor recommendations relied upon by the OIG in upholding the disputed deficiencies."
3 Pursuant to 45 CFR § 2.3:
No employee or former employee of the DHHS [Department of Health and Human Services] 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.
4 Ms. Stickels' September 6, 2012, letter of appeal.
5 The OIG "performs certification tasks at health care facilities as the 'State Agency' under contract with CMS and in accordance with the Social Security Act." 09-ORD-022, p. 2.