MEDICAID. VIRGINIA FREEDOM OF INFORMATION ACT. RECORDS. MEDICARE
AND MEDICAID COST REPORTS IN POSSESSION OF COMMONWEALTH NOT EXEMPT
FROM VIRGINIA FREEDOM OF INFORMATION ACT.
July 25, 1979
The Honorable James B. Kenley, M.D.,
Commissioner Department of Health
You have asked whether certain medical cost information in
possession of the State Health Department must be withheld from
disclosure to the public under the Virginia Freedom of Information
Act (the Act").1
Your first question is whether, in an audit information sharing
agreement, the Commonwealth may preserve the confidentiality of any
information received from Medicare fiscal intermediaries.
Your second question is whether the cost of reports submitted to
the Commonwealth by providers of services under the Medicaid program
are exempt from disclosure under the Act.
After researching applicable federal regulations and State law and
regulations, it is my opinion that Medicaid and Medicare cost reports
in the possession of the Commonwealth's Medicaid agency are not
exempt from disclosure under the Act.
Recent federal court decisions interpreting th applicability of
federal Freedom of Information Act2
exemptions to Medicare provider cost reports have differed upon
whether those reports nest be withheld from public
disclosure.3 However, the stated
exemptions to the Act of the Code, do not parallel those outlined in
the federal Freedom of Information Act. See §2.1-342(b).
Moreover, no previous interpretation of the Act suggests that
information is exempt from disclosure by federal officials
necessarily exempt from disclosure under the Act.4
In short, none of the exempt categories delineated in the Act are
applicable to Medicaid or Medicare provider cost reports received by
The General Assembly has determined that the provisions of the Act
shall be liberally construed to "afford every opportunity to citizens
to witness the operations of government." See §2.1-340.1.
Further, the Act states that "[a]ny exception or exemption
from applicability shall be narrowly construed...." Id. Medical and
mental records are specifically excluded from public disclosure under
the Act, except to the person who is the subject thereof. See
§2.1-342(b)(3). This exemption, though, makes no mention of
medical assistance providers or corporate participants in the
Virginia Medical Assistance Program. A narrow construction of
"medical and mental records," therefore, would limit that exemption
to individual, personal records.
No other provision of State law bars the disclosure of cost
reports. The State Health Commissioner is required only to "safeguard
information concerning applicants and recipients See §
32-30.1(b). No corresponding language concerning providers of their
cost reports can be found in either State law or Title XIX of the
Social Security Act. The confidentiality requirement in both the Act
and in §32-30.1 only concerns patient information. It cannot be
inferred from that exemption that the General Assembly intended also
to exenpt institutional or provider information.
In summary, information "in possession of a public body" which is
not otherwise excluded from disclosure, is required to be open to the
public. Information contained in Medicare provider cost reports, if
the reports were obtained for an audit information sharing project,
cannot be withheld from the public under the Act. Comparable provider
cost information now received by the Virginia Medical Assistance
Program is likewise subject to public disclosure.
1.Section 2.1-340 to 2.1-346.1 of the Code of
Virginia (1950), as amended.
2. 5 U.S.C. §552(b) (1976).
3. See Westchester General Hospital, Inc. v.
Department of Health Education and Welfare, 434 F.Supp. 435 (MD
Fla 1977); Parkridge Hospital, Inc. v. Blue Cross and Blue Shield
of Tennessee, 430 F.Supp. 1093 (E.D.Tenn. 1977); Cf.
Westinghouse Electric Corp. v. Schlesinger, 542 F.2d 1190 (4th
Cir., 1976). But, see, Doctors Hospital of Sarasota, Inc. v.
Califano, 455 Fla. 1978); St. Mary's Hospital v. Califano,
462 F.Supp. 315 (S.D.Fla 1978); Chrysler Corp. v. Brown, 47
U.S.L.W. 4434 (April, 18, 1979). The United States District Court for
the Eastern District of Virginia has held that Medicare cost reports
are exempt from mandatory public disclosure under 5 U.S.C.
§552(b)(4) (1976) (confidential commercial and financial
information). Humana of Virginia, Inc. v. Blue Cross of
Virginia, 455 F.Supp. (Va. 1978)
4. The phrase [e]xcept as otherwise
specifically provided by law..." at §2.1-342(a) has never been
interpreted to include provisions of federal law. It refers only to
those except io(is "specifically provided" by the law of Virginia