Envoy Medical Systems, L.L.C. v. State

• Decision Date: 27 March 2003
• Docket Number: No. 03-02-00089-CV.,03-02-00089-CV.
• Citation: Envoy Medical Systems, L.L.C. v. State, 108 S.W.3d 333 (Tex. App. 2003)
• Parties: ENVOY MEDICAL SYSTEMS, L.L.C. and Independent Review Incorporated, Appellants, v. STATE of Texas; Greg Abbott, Attorney General of Texas;<SMALL><SUP>1</SUP></SMALL> and Jose Montemayor, Insurance Commissioner of Texas, Appellees.
• Court: Texas Court of Appeals

108 S.W.3d 333

ENVOY MEDICAL SYSTEMS, L.L.C. and Independent Review Incorporated, Appellants, v.STATE of Texas; Greg Abbott, Attorney General of Texas;¹ and Jose Montemayor, Insurance Commissioner of Texas, Appellees.

No. 03-02-00089-CV.

Court of Appeals of Texas, Austin.

March 27, 2003.

Rehearing Overruled May 30, 2003.

COPYRIGHT MATERIAL OMITTED

Dale Ossip Johnson, The Johnson Firm, P.L.L.C., Austin, for appellants.

Brenda Loudermilk, Asst. Atty. Gen., Austin, for appellees.

Before Justices KIDD, PATTERSON and PURYEAR.

OPINION

MACK KIDD, Justice.

AppellantsEnvoy Medical Systems, L.L.C. and Independent Review Incorporated appeal from the trial court's judgment against them in their suit to exempt certain records from disclosure under the Public Information Act.SeeTex. Gov't Code Ann. §§ 552.001-.353(West 1994& Supp.2003)(hereafter, "PIA § ___").We will affirm the trial court's judgment.

Factual and Procedural Background

This case originated with a request for information furnished to the Texas Department of Insurance("the Department") in connection with appellants' applications for certification as Independent Review Organizations ("IRO").IROs were created to consider appeals of adverse determinations of medical necessity made by utilization review agents.²A utilization review agent is the entity that reviews whether a particular medical or service benefit will be provided to employees covered under a health benefit plan provided by their employer.The Attorney General issued a decision holding that the information at issue could not be withheld.Tex. Att'yGen. ORD 535(2001).Appellants then sued to challenge the attorney general's opinion and requested injunctive relief to prevent disclosure of the disputed information.³The information to which access was disputed at trial is a list of reviewers, reviewer contracts, and reviewer compensation terms.⁴In two issues on appeal, appellants contend that the trial court abused its discretion in failing to find the information at issue was not subject to public disclosure because it was "confidential by law" and by failing to conclude that the information was excepted from public disclosure under the exception for certain commercial or financial information.SeePIA § 552.101, .110(b).

Discussion

Appellate review of a trial court order granting or denying a permanent injunction is strictly limited to a determination whether the trial court has committed a clear abuse of discretion.Risk Managers Int'l v. State,858 S.W.2d 567, 569-70(Tex.App.-Austin1993, writ denied).A clear abuse of discretion in denying injunctive relief arises only when the trial court's decision is not supported by some evidence of substantial and probative character.GTE Mobilnet of S. Tex. Ltd. P'ship v. Pascouet,61 S.W.3d 599, 620(Tex.App.-Houston [14th Dist.]2001, pet. denied).

Public Information Act

"The Open Records [now Public Information]Act's core provision provides that the public is entitled to information `collected, assembled, or maintained by a governmental body.'"Holmes v. Morales,924 S.W.2d 920, 922(Tex.1996);Arlington Indep. Sch. Dist. v. Texas Attorney Gen.,37 S.W.3d 152, 157(Tex.App.-Austin 2001, no pet.)(quotingHolmes).Public information may not be withheld except as expressly provided by the Act.SeeHouston Chronicle Publ'g Co. v. City of Houston,531 S.W.2d 177, 184(Tex.App.-Houston [14th Dist.]1975), writ ref'd n.r.e.,536 S.W.2d 559(Tex.1976).The PIA forcefully articulates a policy of open government.A & T Consultants v. Sharp,904 S.W.2d 668, 675(Tex.1995).

The PIA mandates that the act"shall be liberally construed in favor of granting a request for information."PIA § 552.001(b);see alsoCity of Garland v. Dallas Morning News,22 S.W.3d 351, 356(Tex.2000);Arlington Indep. Sch. Dist.,37 S.W.3d at 157.Exceptions to disclosure should be construed narrowly.SeeArlington Indep. Sch. Dist.,37 S.W.3d at 157-58(citingCity of Garland,22 S.W.3d at 364).As parties seeking to withhold information from the public, appellants have the burden to prove that an exception to disclosure applies to the information at issue.Birnbaum v. Alliance of Am. Insurers,994 S.W.2d 766, 779-80(Tex.App.-Austin1999, pet. denied).

An entity seeking certification as an IRO must provide "a description of personnel and credentialing, and a completed profile for each physician and provider."28 Tex. Admin. Code § 12.103(4)(West 2002).Appellants contend that this information is made confidential by rule:

(a) An independent review organization shall preserve the confidentiality of individual medical records, personal information, and any proprietary information provided by payors.Personal information shall include, at a minimum, name, address, telephone number, social security number and financial information.

(b) An independent review organization may not disclose or publish individual medical records or other confidential information about a patient without the prior written consent of the patient or as otherwise required by law.An independent review organization may provide confidential information to a third party under contract or affiliated with the independent review organization for the sole purpose of performing or assisting with independent review.Information provided to third parties shall remain confidential.

(c) The independent review organization may not publish data which identify a particular payor, physician or provider, including any quality review studies or performance tracking data, without prior written consent of the involved payor, physician or provider.This prohibition does not apply to internal systems or reports used by the independent review organization.

(d)-(i)[Procedures for maintaining confidentiality]

Id.§ 12208(emphasis added).This section implements the statutory mandate that requires that IROs must ensure the confidentiality of medical records transmitted to it for its use in performing an independent review.SeeTex. Ins.Code Ann. art. 21.58C § 2(b)(2)(West Supp. 2003).

In their first issue, appellants argues that the use of the word "physician" in 12.208(c) means that the rule makes confidential the names of members of its review panels who are physicians.The agency, on the other hand, contends that physician must be read in light of the statute and the entire rule, which is intended to make confidential the information provided to the IRO for purposes of performing its review, not the information provided by the IRO to the Department as part of its application process.

An administrative agency has the power to interpret its own rules and that interpretation is entitled to deference by a court called on to interpret or apply such rules.Texas Gen. Indem. Co. v. Texas Workers' Comp. Comm'n, 36 S.W.3d 635, 641(Tex.App.-Austin 2000, no pet.);see alsoTennessee Gas Pipeline Co. v. Rylander,80 S.W.3d 200, 203(Tex.App.-Austin2002 pet. denied)(greater deference given to interpretation that is longstanding and applied uniformly).An agency's construction of its rule is entitled to great weight unless it is plainly erroneous or inconsistent.Texas Gen. Indemnity,36 S.W.3d at 641.We consider the rule as a whole and in relationship to the statute which it implements.Tennessee Gas Pipeline,80 S.W.3d at 205.Finally, an agency may not by rule make information confidential contrary to the PIA.SeeIndustrial Found. of the S. v. Texas Indus. Accident Bd.,540 S.W.2d 668, 677(Tex.1976)(agency may not bring information within exception for confidential information by promulgation of rule).

According to testimony from the director of the relevant division, the Department has consistently interpreted the rule as protecting the name of the patient's treating physician furnished to the IRO.The word "physician" appears in a listing with two other entities involved in furnishing care to the patient; again, information furnished to the IRO for the review process.Finally, this section of the rule states that the IRO may not publish certain information given to it in order for it to perform its review; it does not refer to information furnished by the IRO to the Department.⁵We overrule the first issue.

Commercial or Financial Information Exception

In their second issue, appellants argue that the information at issue is excepted from disclosure under the provisions concerning commercial or financial information:

Commercial or financial information for which it is demonstrated based on specific factual evidence that disclosure would cause...