Connecticut State Medical Soc. v. Commission on Hospitals and Health Care

• Decision Date: 11 August 1992
• Docket Number: No. 14456,14456
• Citation: 612 A.2d 1217,223 Conn. 450
• Court: Connecticut Supreme Court
• Parties: CONNECTICUT STATE MEDICAL SOCIETY et al. v. COMMISSION ON HOSPITALS AND HEALTH CARE.

Page 1217

612 A.2d 1217

223 Conn. 450

CONNECTICUT STATE MEDICAL SOCIETY et al. v. COMMISSION ON HOSPITALS AND HEALTH CARE.

No. 14456.

Supreme Court of Connecticut.

Argued June 10, 1992.

Decided Aug. 11, 1992.

Jeanette C. Schreiber, with whom was Merton G. Gollaher, Jr., New Haven, for appellants (plaintiff Connecticut Hosp. Ass'n, Inc., et al.).

Thomas J. Ring, Asst. Atty. Gen., with whom, on the brief, were Richard Blumenthal, Atty. Gen., and Richard J. Lynch and Heather J. Wilson, Asst. Attys. Gen., for appellee (defendant).

Before CALLAHAN, GLASS, COVELLO, BORDEN and BERDON, JJ.

COVELLO, Associate Justice.

This is an administrative appeal from a declaratory ruling of the defendant, the Commission on Hospitals and Health Care (CHHC). The dispositive issue is whether § 19a-165q-2 of CHHC's regulations required submission to CHHC of data that violated the privacy and confidentiality rights of patients as set forth in General Statutes § 52-146e, 42 U.S.C. §§ 290dd-3, 290ee-3 (1985), and 42 C.F.R. §§ 2.11, 2.53 and 2.54 (1985). We conclude that this is so with respect to one item and, therefore, reverse, in part, the judgment of the trial court that held to the contrary.

Examination of the record discloses that on April 26, 1985, CHHC adopted §§ 19a- 165q-1 through 19a-165q-24 of the Regulations of Connecticut State Agencies. Thereafter, on June 14, 1985, the named plaintiff and others, ¹ filed a petition for a declaratory ruling, ² ] seeking invalidation of § 19a-165q-2 of the newly adopted regulations on the ground that it required the submission of statutorily protected patient data. On September 3, 1986, after hearings, CHHC issued a declaratory ruling concluding that the regulation was valid. The plaintiffs subsequently commenced the instant administrative appeal in the Superior Court, seeking to vacate and set aside CHHC's declaratory ruling. The trial court, having found the plaintiffs aggrieved, rendered judgment for CHHC, concluding that the specified information did not violate the statutorily protected privacy and confidentiality rights of the plaintiffs and that the contested regulation was, therefore, valid. The Connecticut Hospital Association and the four general hospitals who were parties in the action below, appealed to the Appellate Court. We thereafter transferred the matter to ourselves pursuant to Practice Book § 4023.

The history of the statutory enactments that served as the basis for the promulgation of § 19a-165q-2 is as follows. On June 5, 1984, the General Assembly passed No. 84-315 of the 1984 Public Acts, which was thereafter codified as General Statutes (Rev. to 1985) §§ 19a-165 through 19a-165q. The statutory scheme established a prospective payment system whereby general hospital rates were established in advance based upon a fixed charge per diagnosis or medical procedure. Section 19a-165a directed CHHC to "require hospitals to submit such data as it deems necessary for the development and implementation of the prospective payment system...." Section 19a-165q directed CHHC to "adopt regulations, in accordance with the provisions of chapter 54 to implement, administer and ensure compliance with the prospective payment system established under sections 19a-165 to 19a-165q, inclusive." Thereafter, CHHC promulgated § 19a-165q-2. Section 19a-165q-2(b)(1) required all of Connecticut's general hospitals to file with CHHC a "hospital discharge data set for each patient discharged from the hospital after September 30, 1983." Each data set contained thirty items of information concerning a given patient.

In their application for a declaratory ruling, the plaintiffs challenged thirteen items in each data set, arguing that the information was unnecessary for purposes of the prospective payment system and, further, that disclosure of the material violated patient privacy and confidentiality rights. The challenged data included: (1) patient identification code; (2) Zip Code; (3) Zip Code suffix; (4) attending physician; (5) operating physician; (6) principal procedure day; ³ (7) other procedure I day; (8) other procedure II day; (9) other procedure III day; (10) other procedure IV day; (11) admission status; (12) expected principal source of payment; and (13) race.

I

As a threshold consideration, we must address CHHC's claim that the issues presented are moot because of the legislature's repeal in 1989 of the statutes that authorized the prospective payments system and its enactment of a different method for determining hospital budgets. There is no dispute that CHHC, in response to the 1989 legislative changes, adopted § 19a-167g-94 ⁴ of the Regulations of Connecticut State Agencies, which superseded § 19a-165q-2. ⁵ Since there is no longer a requirement to submit data pursuant to § 19a-165q-2, CHHC argues that there is no longer a justiciable controversy concerning this regulation before the court. CHHC argues that "[i]t is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow." Reynolds v. Vroom, 130 Conn. 512, 515, 36 A.2d 22 (1944). While we agree that this is a correct statement of the law, we conclude that it is not applicable in the present instance.

It is undisputed that CHHC continues to maintain six years of data accumulated pursuant to § 19a-165q-2 and that CHHC refuses either to return the data to the plaintiffs or to purge the data from CHHC's computer files. The plaintiffs' claim, meanwhile, remains the same, i.e., that CHHC cannot legally retain the data because of its confidential nature, and that it should be required to return the same or purge its computer files.

Although the repeal of an offending law or regulation or the cessation of a challenged activity can render an action to enjoin its enforcement moot; Roy v. Mulcahy, 161 Conn. 324, 328, 288 A.2d 64 (1971); the repeal will not render moot a claim for redress of an injury occurring while the enactment was in force. Hallas v. Windsor, 217 Conn. 689, 692, 587 A.2d 149 (1991); Gunther v. Dubno, 195 Conn 284, 288, 487 A.2d 1080 (1985). The plaintiffs claim that while § 19a-165q-2e was in force, they became prospectively liable to prior patients for the release to CHHC, over a six year period, of material that the plaintiffs argue is confidential. Until the regulation is either determined to have been valid because the requested material is not confidential or the offending material is ordered excised or, in the alternative, some other basis is determined for retaining the material, we conclude that a sufficient controversy exists to survive CHHC's claim of mootness occasioned by the legislature's subsequent enactments.

II

The plaintiffs' argument throughout these proceedings has been, inter alia, that the contested regulation required them to submit to CHHC data that is confidential and, therefore, exempt from disclosure by reason of both state and federal law. With respect to Connecticut statutes, the plaintiffs refer us specifically to General Statutes § 52-146e(a), which prohibits the disclosure of records "which identify a patient to any ... governmental agency...." ⁶

With respect to federal statutes, the plaintiffs rely upon 42 U.S.C. § 290dd-3(a), which prohibits the disclosure of records concerning "any patient which are maintained in connection with the performance of any program or activity relating to alcoholism or alcohol abuse...." ⁷ An identical provision governing confidentiality of patients diagnosed or treated for drug abuse is found in 42 U.S.C. § 290ee-3(a). Implementing federal regulations define "patient identifying information" to include, inter alia, "information by which the identity of a patient can be determined with reasonable accuracy and speed either directly or by reference to other publicly available information." 42 C.F.R. § 2.11(j) (1985).

CHHC responds to these claims of an alleged breach of patient confidentiality by pointing out that, with respect to each data set, the actual name of the patient is not disclosed, but only a patient identifying number supplied by the hospital. This number serves only to show that a particular set of data relates to one patient's hospital stay, but does not link the data to the actual identity of the patient. CHHC argues that such a number is expressly excluded from the meaning of the term "patient identifying information" in the federal regulation, specifically, "[t]he term does not include a patient identifying number assigned by a program." 42 C.F.R. § 2.11 (1985).

Despite their objection before CHHC and the trial court to thirteen items of information in each data set, including the patient identifying number, the linchpin of the plaintiffs' claim to us that a breach of confidentiality has occurred, lies, not in the submission of a patient identifying number, but rather, in the requirement to supply the patient's ZIP Code including its four digit suffix. The plaintiffs argue that the ZIP Code constitutes "other descriptive data from which a person acquainted with the patient might reasonably recognize the patient as the person referred to." General Statutes § 52-146d(4)(A). In its declaratory ruling, CHHC specifically rejected this essentially fact driven argument. ⁸ Since this determination was one of fact, we will not reverse or modify such a holding unless we determine that the decision is clearly erroneous in view of the evidence and pleadings in the whole record. Practice Book § 4061.

" 'A finding is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.' " Doyle v. Kulesza, 197 Conn. 101, 105, 495 A.2d 1074 (1985), citing ...