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January 19, 2000

Ms. Sara Shiplet Waitt
Senior Associate Commissioner
Legal and Compliance Division
Texas Department of Insurance
P.O. Box 149104
Austin, Texas 78714-9104

OR2000-0171

Dear Ms. Waitt:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 131239.

The Texas Department of Insurance (the "department") received a request for information concerning Magellan Behavioral Health of Texas, Inc. ("Magellen"). You indicate that some of the responsive information has been provided to the requestor. You claim that the information you have submitted as Exhibits 13, 14, and 19 is excepted from disclosure under section 552.101 of the Government Code. We have considered the exception you claim and have reviewed the submitted information.

Section 552.101 excepts from disclosure information considered to be confidential by law, either constitutional, statutory, or by judicial decision. The section also encompasses information protected by other statutes. You indicate that the document you have marked as Exhibit 13 is a provider contract. Section 20A.17(b)(2) of the Insurance Code states in relevant part:

A copy of any contract, agreement, or other arrangement between a health maintenance organization and a physician or provider shall be provided to the commissioner by the health maintenance organization on the request of the commissioner. Such documentation provided to the commissioner under this subsection shall be deemed confidential and not subject to the open records law, Chapter 552, Government Code.

After reviewing the submitted information, we agree that section 20A.17(b)(2) of the Insurance Code makes the information confidential by law. Accordingly, you must not release the information in Exhibit 13 to the requestor.

Additionally, you indicate that Exhibit 14 is a quality of care assurance program from Magellan. You assert that article 20A.17(b)(4) of the Insurance Code makes quality of care assurance programs confidential. Article 20A.17(b)(4) states in relevant part:

The Commissioner may examine and use the records of a health maintenance organization, including records of a quality of care assurance program. . . .That information is confidential and privileged and is not subject to the open records law, Chapter 552, Government Code or to subpoena except as necessary for the commissioner to enforce this Act.

We agree that the commission must withhold the information in Exhibit 14 pursuant to section 552.101 of the Government Code in conjunction with article 20A.17(b)(4) of the Insurance Code.

Finally, you assert that the information you have marked as Exhibit 19 is confidential because it is a compensation arrangement. Article 20A.04(15) of the Insurance Code states:

[A] written description of the types of compensation arrangements, such as compensation based on fee-for-service arrangements, risk-sharing arrangements, or capitated risk arrangements, made or to be made with physicians and providers in exchange for the provision of or an arrangement to provide health care services to enrollees, including any financial incentives for physicians and providers; such compensation arrangements shall be confidential and not subject to the open records law, Chapter 552, Government Code.

After reviewing the submitted information in Exhibit 19, we agree that the information must be withheld under section 552.101 in conjunction with article 20A.04(15)of the Insurance Code.

This letter ruling is limited to the particular records at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other records or any other circumstances.

This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. 552.321(a).

If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, within 10 calendar days of this ruling, the governmental body will do one of the following three things: 1) release the public records; 2) notify the requestor of the exact day, time, and place that copies of the records will be provided or that the records can be inspected; or 3) notify the requestor of the governmental body's intent to challenge this letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of this ruling, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at 877/673-6839. The requestor may also file a complaint with the district or county attorney. Id. 552.3215(e).

If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. 552.321(a); Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App.-Austin 1992, no writ).

If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling.

Sincerely,

Carla Gay Dickson
Assistant Attorney General
Open Records Division

CGD/jc

Ref: ID# 131239

Encl. Submitted documents

cc: Ms. Susan U. Lauer
Paralegal
Friedman, Young, Suder & Cooke
500 Throckmorton, 20th Floor
Fort Worth, Texas 76102
(w/o enclosures)


 

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