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

79-80 236

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 Commonwealth.

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.

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Footnotes:

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