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Dep't of Health v. Office of Open Records

September 9, 2010

DEPARTMENT OF HEALTH, PETITIONER
v.
OFFICE OF OPEN RECORDS, RESPONDENT



The opinion of the court was delivered by: Judge Cohn Jubelirer

Argued: June 21, 2010

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE JOHNNY J. BUTLER, Judge, HONORABLE JIM FLAHERTY, Senior Judge.

OPINION

The Department of Health (Department) petitions for review of the final determination of the Office of Open Records (OOR) that granted HCRManorCare's (Requester) appeal from the decision of the Department's Agency Open Records Officer (AORO) denying Requestor's request to obtain certain documents, including notes, witness statements and other materials, relating to governmentally mandated inspections and surveys conducted by the Department on a nursing home (Request) pursuant to the Right-to-Know Law (RTKL).*fn1 Before this Court, the Department contends that the OOR erred in concluding that the documents requested are not exempt from public disclosure under the non-criminal investigation exemption set forth in Section 708(b)(17) of the RTKL, 65 P.S. § 67.708(b)(17), and the internal, predecisional deliberative records exemption set forth in Section 708(b)(10)(i)(A) of the RTKL, 65 P.S. § 67.708(b)(10)(i)(A).*fn2 The Pennsylvania Association of County Affiliated Homes, Pelican Insurance, Pennsylvania Health Care Association, Pennsylvania Association of Non-Profit Homes for the Aging, and The Hospital & Healthsystem Association of Pennsylvania (collectively, Amici Curiae) have filed a brief expressing their support for the Department's position. For the reasons that follow, we reverse the OOR's final determination.

I. Facts and Procedural Posture

A. Requester

Requester is a nursing and rehabilitation center that provides skilled nursing, rehabilitation, sub-acute, Alzheimer's, and dementia care. As a health care facility, Requester is required to be licensed and is subject to licensing inspections. See Sections 807, 808, and 813 of the Health Care Facilities Act (HCFA),*fn3 35 P.S. §§ 448.807--448.808, 448.813 (requiring licensure of health care facilities and allowing for entry and inspection of such facilities). Requester is also a Medicare provider. As a Medicare provider, Requester is required to be certified and is subject to certification surveys. See Section 1819(g) of the Social Security Act, 42 U.S.C. § 1395i-3(g) (requiring certification of compliance with requirements, based on the completion of a survey, for a skilled nursing facility to participate in the Medicare program).

B. The Department

The Department is the entity responsible for issuing licenses to health care facilities. See 35 P.S. § 448.808 (making the Department responsible for the issuance of licenses). As such, the Department is authorized to conduct inspections of health care facilities in order to enforce licensing requirements and applicable state and federal laws and regulations (Inspections). See 35 P.S. § 448.813 (authorizing the Department to conduct inspections of health care facilities). Specifically, Section 813 of the HCFA authorizes the Department to: "enter, visit and inspect the building, grounds, equipment and supplies of any health care facility licensed or requiring a license"; "have full and free access to the records of the facility and to the patients and employees therein"; and "have full opportunity to interview, inspect, and examine such patients and employees." 35 P.S. § 448.813. Additionally, the Department is authorized to: cite health care facilities for any deficiencies that are found during an Inspection, Section 814 of the HCFA, 35 P.S. § 448.814; take adverse licensing action against health care facilities, Sections 811 and 812 of the HCFA, 35 P.S. §§ 448.811--448.812; impose civil penalties against health care facilities, Section 817(b) of the HCFA, 35 P.S. § 448.817(b); and maintain civil actions against health care facilities for injunctive or other necessary relief, Section 817(a) of the HCFA, 35 P.S. § 448.817(a).

The Department also serves as the "State Survey Agency" for the United States Department of Health and Human Services, Centers for Medicare and Medicaid Services (HHS) and the Pennsylvania Department of Public Welfare (DPW). As such, the Department is responsible for conducting surveys to monitor compliance with Medicare and Medical Assistance (MA) certification requirements (Surveys).*fn4 ,*fn5 See Section 1864(a) of the Social Security Act, 42 U.S.C. § 1395aa (directing that agreements be made, where possible, with state agencies to monitor compliance with certification requirements for participation in Medicare and Medicaid Programs); Section 1902 of the Social Security Act, 42 U.S.C. § 1396a(a)(9)(A) (requiring that the state agency used with regard to Section 1864(a) of the Social Security Act be used in monitoring compliance with requirements for state medical assistance programs); 42 C.F.R. §§ 488.10-488.26, 488.300-488.335 (discussing functions of state survey agencies and procedures to be used in determining compliance). The Survey process, as it applies to nursing homes, is designed "to assess whether the quality of care, as intended by the law and regulations, and as needed by the resident, is actually being provided." 42 C.F.R. § 488.110. The Surveys are required to "be conducted by a multidisciplinary team of professionals, which must include a registered nurse."

42 C.F.R. § 488.314. During the Survey process, the Survey team: (1) conducts an entrance conference, which entails meeting with facility staff to explain the Survey process and gather preliminary information; (2) selects a resident sample; (3) tours the facility; (4) reviews medical records of residents within the resident sample and observes and interviews those residents, as well as family members and staff; (5) makes a drug pass observation, which involves observing the preparation and administration of medications to residents; (6) makes a dining area and eating assistance observation in order to determine if dietary needs are being met; (7) collaborates with each other to discuss findings and make determinations as to deficiencies, analyzes the severity and frequency of any deficiencies, and prepares a Statement of Deficiencies; and (8) conducts an exit conference with the facility staff to explain its findings and to arrange for the preparation of a Plan of Correction. 42 C.F.R. § 488.110. While completing these tasks, the Survey team uses various worksheets to take notes and collect and record relevant information. Id. The Survey team also uses a Survey Report Form to summarize all of the negative findings of the Survey, "which could possibly contribute to a determination that the facility is deficient in a certain area." Id.

C. The Request

On January 30, 2009, Requester filed its Request with the Department. Requester specifically sought to obtain copies of:

Documents possessed by the [Department] related to any [Department] surveys and/or inspections [that the Department] conducted during 2006, 2007, and 2008 of [Requester's] nursing home at 14 Lincoln Avenue, Yeadon, Pennsylvania, including (but not limited to) surveyor's notes, witness statements, and other materials related to the [Department]'s issuance of a Statement of Deficiencies (e.g., CMS Form 2567).

(Request, R.R. at 2a.)

D. AORO's Decision

On February 3, 2009, the AORO issued a letter denying the Request, asserting, among other reasons, that the records sought: (1) are exempt from public disclosure under the non-criminal investigation exemption set forth in Section 708(b)(17) of the RTKL; and (2) are exempt from public disclosure under the internal, predecisional deliberative records exemption set forth in Section 708(b)(10)(i)(A) of the RTKL.*fn6 (Letter from AORO, Patty Sheaffer, to Requester's Counsel (February 3, 2009) at 1-2, R.R. at 3a-4a.) The AORO also: advised Requester that the Statements of Deficiencies and Plans of Correction from all of the Inspections and Surveys are made available on the Department's website; encouraged Requester to review those documents; and invited Requester to request copies of those documents, explaining that Requester had a right to access those documents outside of the RTKL. (Letter from AORO, Patty Sheaffer, to Requester's Counsel (February 3, 2009) at 3-4, R.R. at 5a-6a.) Requester appealed the AORO's decision to the OOR.

E. OOR's Final Determination

On May 6, 2009, without holding a hearing on the matter, the OOR issued its final determination granting Requester's appeal and directing the Department to provide Requester with copies of the requested records with any nonpublic information redacted. In its final determination, the OOR rejected the Department's position that the records sought were exempt from public disclosure under the non-criminal investigation exemption, explaining, in pertinent part:

The OOR notes at the outset that Section 708(b)(17) (non-criminal investigations) has the potential to be the exception that swallows the rule embodied in the RTKL. The OOR notes that the RTKL provides a strong presumption of openness and places the burden of proving the nonpublic nature of a record on the government by the preponderance of evidence. The OOR rejects as matter of interpretation and common sense that every inquiry and activity conducted by an agency rises to the level of the kinds of non-criminal investigation contemplated in Section 708(b)(17).

At a minimum, a distinction can and must be made between an inspection and an investigation. The inspections conducted in Cahill[v. Borough of Penndel, OOR AP# 2009-0023 (Final Determination February 19, 2009)], for example, were performed in response to complaints made to the agency, thereby elevating them to an investigation. [The Department] points to no similar trigger for the activities reflected in the documents sought by [Requester] in this case. The OOR believes that such a blanket classification of the records sought by [Requester] as non-criminal investigations improperly negates the broad reach of the RTKL and frustrates its purpose. Therefore, the OOR finds that the requested records are not exempt from public release as relating to a non-criminal investigation pursuant to ยง 67.708[(b)](17) ...


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