Opinion
Opinion By: Andy Beshear, Attorney General; Gordon Slone, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Orthopedic Hand & Arm, PLLC, violated the Open Records Act in denying Antoinette Taylor's request for employment records of the staff and medical records regarding Ms. Taylor's treatment. For the reasons stated below, we find that the Act does not apply to Orthopedic Hand & Arm, PLLC, and that it did not violate the Act in refusing to respond to Ms. Taylor's open records request.
By letter dated August 24, 2019, Ms. Antoinette Taylor requested information and records from Orthopedic Hand & Arm, PLLC ("OHA"), to include a list of "those" with whom Ms. Taylor's health information had been shared or discussed; a copy of OHA's privacy and security notice; and a copy of Dr. Farr's "curriculum vitae/resume and/or work history." 1 By letter of September 16, Ms. Taylor appealed OHA's failure to respond to her request. Appellant's letter of appeal stated, "I believe that Dr. Farr receives at least 25% of Medicaid and Medicare payments."
OHA responded to the appeal on September 19, stating:
As of March 2019, we do not accept any KY Medicaid or Passport patients at this time . . . As an independent private practice medical office who does not treat Medicaid or Passport patients we are not required to release this information per [KRS 61.870] which refers to public agencies.
Analysis : In 14-ORD-142, Ms. Taylor requested records from Crestview Center, a private healthcare practice. In that decision, we determined that Crestview Center was not a public agency pursuant to the definitions of a "public agency" in KRS 61.870(1). The definition of "public agency" relevant in 14-ORD-142, and which appears to be the definition upon which Ms. Taylor relies in the current appeal, is KRS 61.870(1)(h), which defines a "public agency" as:
Any body which, within any fiscal year, derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds. However, any funds derived from a state or local authority in compensation for goods or services that are provided by a contract obtained through a public competitive procurement process shall not be included in the determination of whether a body is a public agency under this subsection[.]
In 93-ORD-90, this office found that a radiology practice owned by a private physician was not a public agency for purposes of the Open Records Act simply because it was reimbursed through Medicare and Medicaid for professional services rendered to its patients. In construing KRS 61.870(1)(h), this office held that it was intended to ensure that bodies which receive 25% or more of their funding from state or local authority funds could be held publicly accountable for those funds. However, our analysis in 93-ORD-90 reasoned that, merely because private physicians receive state or public funds as reimbursement for their services, they do not become "public agencies, " as "they would be discouraged from serving senior citizens and the poor, who benefit from the Medicare and Medicaid programs." Id. , pp. 9-10. Accordingly, this office concluded 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. Id. , p. 10. See 10-ORD-115 (rationale of 93-ORD-90 did not turn upon a distinction between state and federal funds but upon the fact that Medicare and Medicaid funds were received solely as direct reimbursement for professional services). See also 00-ORD-91; 06-ORD-210.
In this appeal, OHA states that it does not accept Medicaid or Passport patients, and Ms. Taylor's apparent reliance on KRS 61.870(1)(h) as applying to OHA fails. 2 Under the analysis of 93-ORD-90 and 14-ORD-142, OHA would still not be subject to the Act as 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 state funds. As OHA does not otherwise fall within the parameters of KRS 61.870(1) , this office finds that it is not a public agency for purposes of the Open Records Act. OHA's records are not subject to the provisions of the Act and it did not violate the Act by refusing to respond to Ms. Taylor's open records 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 Dr. Leela Farr is the orthopedic surgeon associated with Orthopedic Hand & Arm, PLLC.
2 Passport Health Plan ("Passport") is a local nonprofit community-based health plan administering Kentucky Medicaid benefits." http://passporthealthplan.com/about-us/ (last visited Sept. 23, 2019).