FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

           

The above-captioned matter was heard as a contested case on May 17, 2010, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.

 

            After consideration of the entire record, the following facts are found and conclusions of law are reached:

 

            1.  The respondents are public agencies within the meaning of §1-200(1), G.S.

 

2.  By letter of complaint filed January 25, 2010, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by denying his request for access to a nursing home investigation report completed by the respondents.

 

3. It is found that the complainant, by letter dated August 10, 2009, complained to the respondents about the care, or lack of care, afforded his mother at Crossings West Campus (“Crossings”).

 

4. It is found that the respondents conducted an investigation of Crossings West Campus based on the many concerns that the complainant raised in his August 10, 2009 letter.

 

5. It is found that the Department of Public Health (“DPH”) Facility Licensing and Investigations Section (“FLIS”) completed an investigation at Crossings West Campus (“Crossings”) including an onsite visit conducted by a DPH representative, tours of the institution, record reviews, and staff and resident interviews.

 

6.  FLIS is authorized to respond to such complaints and conduct such investigations pursuant to §19a-498(b), G.S., which provides in relevant part:

 

The commissioner, or an agent authorized by the commissioner to conduct any inquiry, investigation or hearing under the provisions of this chapter, shall have power to inspect the premises of an institution, administer oaths and take testimony under oath relative to the matter of inquiry or investigation. At any hearing ordered by the department, the commissioner or such agent may subpoena witnesses and require the production of records, papers and documents pertinent to such inquiry….

 

7. The Commission takes administrative notice of the fact that FLIS sets forth the procedure for filing complaints against health care facilities on its website, which as of the date of this hearing officer’s report, informed the public that:

State and federal agencies are obligated to investigate complaints filed by, or on behalf of, nursing home residents. Complaints regarding nursing home residents, administrators and staff can be filed with the Connecticut Department of Public Health (DPH).  Complaints regarding the Connecticut Department of Public Health or about nursing homes can be filed with the federal Centers for Medicare and Medicaid Services (CMS).  These agencies have the right to fine nursing homes and their staff, to revoke licenses, and to impose other penalties for violations of the residents' rights.  Residents can seek assistance in filing complaints from the Connecticut Long Term Care Ombudsman.

      8. The respondents’ website further advises individuals who complain to FLIS that:

The Department issues written acknowledgment of complaints and contacts the complainant during the investigation. The complainant also receives a copy of the investigation report. [Emphasis added]

 

9. It is found that the respondents’ investigator contacted the complainant and informed him that he would receive a copy of the investigation report, and that the only thing he would not be able to see would be the names of the residents that were interviewed, but that those individuals would be identified with a number.

 

10. Consistent with the investigator’s representations to the complainant and FLIS’s own announcement that “[t]he complainant also receives a copy of the investigation report, §19a-536, G.S., additionally requires health care facilities themselves not only to provide copies of such reports, but to provide a room in which the report may be read:

 

    Each nursing home administrator, as defined in section 19a-511 shall permit patients in the nursing home, relatives and legal representatives of, and any other person designated by, such patients and persons interested in placing someone in a nursing home to inspect all inspection reports pertaining to nursing home facilities made by the Department of Public Health, the State Fire Marshal, local fire and health departments or other state and local agencies having jurisdiction over the institution, and all summary copies of current inspection reports of the United States Department of Health and Human Services as provided in the Social Security Act, and shall provide a room adequate for such inspection during normal business hours, provided no such reports or copies thereof shall disclose the name of any patient in any nursing home facility. Such nursing home administrator shall post or cause to be posted in a conspicuous place in the nursing home facility a notice stating that such reports are available for inspection and the location where they may be inspected. [Emphasis added.]

 

11. It is found that, based upon this investigation, the respondents concluded that they were “not able to validate non-compliance with the federal/state laws within the jurisdiction of the Department.”

 

12. It is found that, by letter dated December 1, 2009, the respondents notified the complainant of their conclusion, and informed him that, despite their repeated representations to the contrary, they would not provide him with a copy of the investigation report itself “in accordance with the current FLIS policy and the direction of the Centers for Medicare/Medicaid Services,” and that the single-page December 1 letter notifying the complainant of their conclusion that Crossroads was not in violation of state or federal law would “serve as the results of our review.”

 

13.  It is found that the complainant then made a December 31, 2009 faxed request to David DeMaio, a Health Program Associate for the respondent Department of Public Health (“DPH”) for copies of “all the records regarding the investigation.”

 

14. It is found that Jennifer Squires at the DPH Communications Office received the request for copies on or about January 7, 2010, acknowledged it to the complainant, and forwarded it to DeMaio with the recommendation that the anticipated response was “Disclosable, immediate response as requested.”

 

15. It is found that, contrary to that recommendation, DeMaio, by letter dated January 7, 2010, replied that the December 1 letter described above, “at the direction of Centers for Medicare and Medicaid Services is the only document responsive to your request.”

 

16. It is found that the complainant never received a copy of the requested records.

 

17.  Section 1-200(5), G.S., provides:

 

“Public records or files” means any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.

 

18.  Section 1-210(a), G.S., provides in relevant part:

 

Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212. 

 

19.  Section 1-212(a), G.S., provides in relevant part that “[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”

 

20.  It is found that the requested records are public records within the meaning of §§1-200(5) and 1-210(a), G.S.

21. The respondents maintain that the requested records cannot be released, “pursuant to a directive from the federal Center for Medicare & Medicaid services” and certain federal regulations set forth below.

22. The respondents’ argument appears to be that, pursuant to federal regulation, DPH employees were federal employees when performing the investigation of Crossings; that federal employees are prohibited from disclosing the information contained in the investigation report; and that the respondents must comply with the directive from the federal Center for Medicare & Medicaid Services not to disclose the investigation report. For the reasons set forth below, the Commission strongly disagrees.

23. 45 Code of Federal Regulations Part 2.2(3) defines employee of the federal Department of Health and Human Services (“HHS”) as:

 “Employees of a contractor, subcontractor, or state agency performing survey, certification, or enforcement functions under title XVIII of the Social Security Act or Section 353 of the Public Health Services Act but only to the extent the requested information was acquired in the course of performing those functions and regardless of whether documents are also relevant to the state’s activities. [Emphasis added.]

24. Section 1864 of the Social Security Act provides that the Secretary [of HHS] shall enter into agreements with states under which appropriate state or local survey agencies determine whether providers meet Medicare conditions of participation, suppliers meet Medicare conditions of coverage, and rural health clinics meet Medicare conditions of certification. Further, under section 353(o) of the Public Health Service Act, the Secretary is permitted to use the services of state agencies to carry out his responsibilities under the Clinical Laboratory Improvement Act Amendments of 1988 (CLIA). Summary, Department of Health and Human Services, Office of the Secretary, 45 CFR Part 2, Testimony by Employees and the Production of Documents in Proceedings Where the United States is Not a Party.

25. The respondents offered no evidence to prove that their investigator, a state employee, acquired information in the course of performing survey, certification, or enforcement functions under title XVIII of the Social Security Act or Section 353 of the Public Health Services Act.

26. Rather, it is found that the requested investigation was conducted pursuant to the respondents’ authority under §19a-498(b), G.S. (see paragraph 5, above) and consistently with the respondents’ own promulgated procedures for conducting such investigations.

27. Indeed, the respondents’ failed to make the very distinction between state and federal roles that they are directed to make by the Center for Medicare and Medicaid Services of HHS:

Section 3304 of the State Operations Manual (SOM0) states that the [state agency] should distinguish between information and documents obtained as an agent of the Centers for Medicare & Medicaid Services (CMS) and those documents the State independently acquires through a State program.

Information and documents that the State independently acquires through a State program must be handled under State law because the documents are State, not Federal, records. For example, requests for survey or certification documents for Medicaid-only providers would fall under applicable State open records law because such records are State, not Federal, records. [Emphasis in original.]

However, information and documents the SA acquires solely in its role as an agent of CMS are subject to CMS disclosure rules. [Italics added].

CMS Center for Medicaid and State Operations/Survey & Certification Group Admin. Info. 07-06, January 12, 2007, “Release of Federal Documents by the State Survey Agency.”

28. It is therefore concluded that the respondents’ employees were not employees of HHS when conducting the investigation initiated by the complainant’s complaint about Crossings.

29.  Moreover, even if the respondents’ employees were deemed to be federal employees for the purpose of the investigation they conducted, again, the respondents are specifically directed by the federal authorities that a state agency may disclose even a summary of a medical facilities deficiencies and a planned correction specifically prepared for HHS (Form CMS-2567 for Surveyed Providers and Suppliers) if “[i]ndividual identifiers within the report (of patients, health care practitioners, or others [are deleted] (this does not include alphanumeric patient/resident or staff identifiers).” Id.  (The Commission notes that this directive is entirely consistent with the representations made by DPH’s investigator to the complainant; see paragraph 8, above.)

30. Additionally, the regulation upon which the respondents rely, 45 CFR Part 2.2(3), simply provides that employees of HHS may not provide testimony as part of their official duties in litigation where the United States or a federal agency is not a party. The amendment upon which the respondents entirely rely merely extends the definition of federal employee to include employees of state agencies under certain clearly delineated situations.  Summary, Department of Health and Human Services, Office of the Secretary, 45 CFR Part 2, Testimony by Employees and the Production of Documents in Proceedings Where the United States is Not a Party.

31. Specifically,  45 CFR Part 2.2(3) applies only to a subpoena duces tecum that a state agency receives for federal and joint federal/state records, which subpoena has been issued in certain well-defined proceedings. Indeed, a state agency performing HHS functions is authorized to “automatically process as FOIA requests all State, local and tribal judicial, administrative, and legislative court subpoenas which do not fall within the categories mentioned above.” [Emphasis in original].  Freedom of information Act Briefing Document on 45 CFR Part 2—As Amended by 73 FR 53148, prepared by The Freedom of Information Group, Office of Strategic Operations and Regulatory Affairs, Centers for Medicare & Medicaid Services, December 8, 2008.

32. It is found that the complainant’s request was not a subpoena duces tecum; and that, even if it were, the prohibition against disclosure would not apply under the facts of this case.

33. Finally, even if 45 CFR Part 2.2(3) meant what the respondents claim it means, it still wouldn’t permit nondisclosure, because federal law regarding the Medicare and Medicaid programs, under which the regulation was promulgated, does not “otherwise provide” for the disclosure of public records under §1-210(a), G.S. Medicare and Medicaid are federal spending statutes that condition receipt of federal grants upon compliance with certain conditions.  Medicare and Medicaid are therefore simply an exercise of the Congress’ power to control its own spending by placing attachments and conditions thereto.  They do not themselves prevent disclosure, but merely operate to condition funding.

          34.  The precise question of whether a public agency may withhold records on the basis of a federal statute that conditions Congress’ exercise of its spending powers on state compliance with federal confidentiality requirements was considered by our Supreme Court in Maher v. FOIC, 192 Conn. 310 (1984).  In Maher, the Department of Income Maintenance (“DIM”) claimed that its records of prescription drugs made available to public assistance recipients under the Medicaid program were exempt as confidential under Title XIX of the Social Security Act, 42 U.S.C. §§1396 et seq.  Just as the respondent has argued in the present case, the plaintiff DIM there argued that Title XIX and the regulations promulgated thereunder require state agencies to protect the privacy of Medicaid recipients, and that the disclosures ordered by the FOI Commission were therefore improper because they violated federal law and hence placed the state in jeopardy of federal sanctions such as loss of federal reimbursement for Title XIX expenditures.  The Court in Maher rejected this argument then, as the Commission must now, because the argument misconceives the nature of federal law enacted pursuant to Congress’ spending power under Article I Section 8 of the U.S. Constitution:

The federal government has not required the states to provide Medicaid services to the medically indigent.  Instead, it has offered the states federal grants in aid, conditioned upon federally determined safeguards.  State participation in the Medicaid program is thus entirely optional, although a state program must comply with the requirements of Title XIX once it elects to participate.  [Citations omitted].  Nothing in the federal regulatory scheme per se prevents a state legislature from enacting binding legislation, as part of its Freedom of Information Act or elsewhere, that is inconsistent with Medicaid safeguards.  The consequence of such legislative action would be to deprive the state of the benefit of federal Medicaid moneys.  While the DIM might well deplore such a result, it would have no standing to contest it.  Federal law thus provides no direct defense to the disclosures that the FOIC has directed.  [Footnote omitted; emphasis added].

 

Maher at 317-318.

 

35.  It is therefore concluded that the Medicare and Medicaid Acts are simply an exercise of Congress’s power to spend, and thereby exercise “persuasion to action over which Congress has no legislative control.”  United States v. Butler, 297 U.S. 1, 83, 56 S.Ct. 312, 80 L.Ed. 477 (1936) (Stone, dissenting).  Clearly, the effect, beneficial or otherwise, of federal spending does not change the character of a spending act, any more than the effect, crippling or otherwise, of the removal of that spending.  Simply put, Congress may preempt state law only in an area in which it has a constitutionally granted power—for example, power under the Commerce Clause (see, e.g., Louisiana Public Service Comm’n v. FCC, 106 S.Ct. 1890 (1986)); or Congressional power with respect to treaties and foreign relations (see, e.g., Hines v. Davidowitz, 61 S.Ct. 399 (1941)).  In the instant case, however, power over individually-initiated state DPH investigations of medical facilities, and state records concerning the same, is reserved to the states.  There is simply no question of federal preemption, because Congress has asserted no authority to do anything but condition the granting of federal dollars.  Hartford Board of Education v. Freedom of Information Commission et al., CV 95-0555646, Superior Court, Judicial District of Hartford-New Britain at Hartford, Memorandum of Decision dated January 9, 1995.

 

36.  It is therefore concluded that the requested records are not exempt from disclosure under any reasonable construction of federal and state law.

37. It is concluded that the respondents violated §1-210(a), G.S., by failing to provide the complainant with a copy of the requested records.

38. The hearing officer on his own motion hereby raises the question of whether a civil penalty ought to be imposed pursuant to §1-206(b)(2), G.S., which provides in relevant part:

 

… upon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars.

 

39.  The standard for when a violation is “without reasonable grounds” is analogous to the legal standard “without any substantial justification.”  Connecticut Department of Public Safety v. FOIC, et al., 1997 WL 537117 (Conn. Super.), affirmed, 247 Conn. 341 (1998).  Similarly, the phrase “without reasonable justification” has been construed to mean “entirely unreasonable or without any basis in law or fact.”  Id., quoting Bursinkas v. Department of Social Services, 240 Conn. 141, 155 (1997). 

 

40. The respondent Commissioner at no time argued or represented that the actions of his employees in denying the complainant a copy of the requested records deviated in any respect from the DPH’s official position or policy, as articulated by counsel for the respondents.

 

41.  It is found that the respondent Commissioner is the official directly responsible for the denial of the right of the complainant to receive a copy of the requested records, since it is inferred that his employees were acting under his authority.

 

42.  The respondent Commissioner, a named party in this case represented by counsel, was given an opportunity to be heard at the May 17, 2010 hearing on this matter.[1]

 

43.  It is found that the respondent Commissioner provided no reasonable grounds for the violation described in paragraph 35 above, nor can the Commission discern any.  Specifically, it is found that the Commissioner’s reliance on federal regulation designed to address an entirely different kind of request, and his disregard for established DPH policy to provide such requested records, was without reasonable grounds.

 

 

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

 

           

1.  The respondent Commissioner shall forthwith provide the complainant with a copy of the requested records, free of charge.

 

 

 

 

 

 

 

Approved by Order of the Freedom of Information Commission at its special meeting of December 15, 2010.

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

PURSUANT TO SECTION 4-180(c), G.S., THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE FREEDOM OF INFORMATION COMMISSION, OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.

 

THE PARTIES TO THIS CONTESTED CASE ARE:

 

Ronald Sydor

P.O. Box 7

Oakdale, CT 06370

 

Commissioner, State of Connecticut,

Department of Public Health; and

State of Connecticut,

Department of Public Health

C/o Tanya F. DeMattia, Esq.

Assistant Attorney General

Office of the Attorney General

55 Elm Street

P. O. Box 120

Hartford, CT 06141-0120

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2010-043FD/sw/12/20/2010