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August 16, 2000

Mr. William T. Buida
Supervising Attorney
Texas Department of Human Services
P. O. Box 149030
Austin, Texas 78714-9030

OR2000-3138

Dear Mr. Buida:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 138094.

The Texas Department of Human Services (the "department") received a request for "all non-privileged documents" regarding Texas Home Health, Inc. You acknowledge that the department failed to timely submit to this office a copy of the specific information requested, or representative samples, in accordance with the requirements of the Public Information Act. See Gov't Code 552.301(e)(1)(D). You also acknowledge that because the department failed to properly comply with all of the requirements of section 552.301, the information responsive to the request is presumed to be subject to required public disclosure and must be released absent a compelling reason to withhold the information. See Gov't Code 552.302. You contend, however, that the documents you have submitted for our review consist of or contain information that must be withheld under section 552.101 of the Government Code in conjunction with various statutory confidentiality provisions.(1) We assume that you have released to the requestor the information that is responsive to the request, other than the documents you have submitted for our review.

You assert that some of the submitted information is made confidential by section 142.009(d) of the Health and Safety Code. Chapter 142 of the Health and Safety Code contains provisions pertaining to the regulation of home health services. Section 142.009(c) requires the department to investigate "each complaint received regarding the provision of home health, hospice, or personal assistance services[.]" Section 142.009(d) provides:

The reports, records, and working papers used or developed in an investigation made under this section are confidential and may not be released or made public except:

(1) to a state or federal agency;

(2) to federal, state, or local law enforcement personnel;

(3) with the consent of each person identified in the information released;

(4) in civil or criminal litigation matters or licensing proceedings as otherwise allowed by law or judicial rule;

(5) on a form developed by the department that identifies any deficiencies found without identifying a person, other than the home and community support services agency;

(6) on a form required by a federal agency if:

(A) the information does not reveal the identity of an individual, including a patient or a physician or other medical practitioner;

(B) the service provider subject to the investigation had a reasonable opportunity to review the information and offer comments to be included with the information released or made public; and

(C) the release of the information complies with any other federal requirements . . . .

The information you have provided indicates that some of the submitted records you seek to withhold constitute reports, records, and working papers that were used or developed during an investigation made under section 142.009(d). Based upon our understanding that there has been no consent for release and that no other exception to confidentiality is applicable in this instance, we agree that the submitted intake worksheets, complaint reports, and reports of contact are confidential in their entirety. We also agree that the information which identifies a complainant and that you have marked for redaction from the submitted correspondence between the department and the complainant also constitutes information made confidential under section 552.101 in conjunction with section 142.009(d) of the Health and Safety Code.

The submitted records also include copies of HCFA 2567 forms. You seek to withhold certain information contained in the forms, which you have highlighted. Federal regulations require the department to release completed HCFA 2567 forms containing a statement of deficiencies and plan of correction, provided that (1) no information identifying individual patients, physicians, other medical practitioners, or other individuals shall be disclosed, and (2) the provider whose performance is being evaluated has had a reasonable opportunity to review the report and to offer comments. See 42 C.F.R. 401.126, .133; Open Records Decision No. 487 at 5 (1988); see also Health & Safety Code 142.009(d)(6). We agree that the information you have marked constitutes information identifying individual patients, physicians, other medical practitioners, or other individuals as contemplated above. The department therefore must redact the marked information from the HCFA 2567 forms prior to their release. We have also marked for redaction additional information which you have not highlighted, but which must be withheld as revealing the identity of a medical practitioner.

The submitted documents also include financial information of Texas Home Health, Inc., which you contend is made confidential in its entirety by section 142.004(d) of the Health and Safety Code. Section 142.002 requires that a person be licensed by the department in order to provide home health services. See Health and Safety Code 142.002. Among other requirements, the applicant seeking to obtain a license must demonstrate "sufficient financial resources to provide the services" for which the license is sought. Health and Safety Code 142.004(c)(1). Section 142.004(d) states:

Information received by the department relating to the competence and financial resources of the applicant or a controlling person with respect to the applicant is confidential and may not be disclosed to the public.

Based on our understanding that the information at issue was submitted to the department pursuant to the requirements of section 142.004, we agree that the documents containing financial information of Texas Home Health, Inc. are made confidential in their entirety by section 142.004(d).

You have also marked for redaction the social security numbers of certain individuals contained in license applications. Although you cite no provision of law in support of withholding this information, we find that the relevant provision is printed as a note following section 51.251 of the Occupations Code. This provision of law, Act of May 17, 1999, 76th Leg., R. S., ch. 314, 1, 1999 Tex. Gen. Laws 1218 (Occupations Code 51.251 note), states:

The social security number of an applicant for or holder of a license, certificate of registration, or other legal authorization issued by a licensing agency to practice in a specific occupation or profession that is provided to the licensing agency is confidential and is not subject to disclosure under the open records law.

We agree that the social security numbers you have marked for redaction are made confidential by the above-cited provision. Therefore, the department must redact this information from the documents at issue prior to their release.

Finally, in your comments to this office, you state:

If any of the clients of the [home health services] organization are receiving Medicaid services from the organization, information concerning these persons is confidential under Human Resources Code, Section 12.003 and 21.012[.]

The remaining information consists of four pages that contain information regarding patients of Texas Home Health, Inc. Although you have marked these documents as excepted from disclosure under the Medical Practice Act, found at Subtitle B of Title 3 of the Occupations Code, our review of the information indicates the documents contain information about patients who evidently were recipients of Medicaid services. We thus understand your above-quoted comments to apply to this information. We also agree that these four pages are excepted from disclosure in their entirety under section 552.101 in conjunction with sections 12.003 and 21.012 of the Human Resources Code. See Open Records Decision No. 584 (1991).

In summary, we agree that the information at issue is excepted from disclosure under section 552.101 as provided above. For your convenience and also as provided above, we have separated the submitted documents and marked them as exhibits "A" and "B." The department must withhold exhibit "A" in its entirety. Exhibit "B" is subject to release to the requestor, but the department must redact from these documents prior to their release the information you have highlighted, and the information we have marked.

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,

Michael Garbarino
Assistant Attorney General
Open Records Division

MG/pr

Ref: ID# 138094

Encl. Submitted documents

cc: Ms. Karen Gandy
802 Driftwood
League City, Texas 77573
(w/o enclosures)


 

Footnotes

1. Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Thus, section 552.101 encompasses information protected by statute. This office has long held that a compelling reason exists to overcome the section 552.302 presumption of openness if the information at issue is made confidential by another source of law. See, e.g., Open Records Decision No. 26 (1974). We therefore address the department's section 552.101 assertions.
 

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