General Care Corp. v. MID-SOUTH FOUNDATION, 89-2172-GA.

• Decision Date: 04 April 1991
• Docket Number: No. 89-2172-GA.,89-2172-GA.
• Parties: GENERAL CARE CORP., d/b/a HCA Park West Medical Centers, Plaintiff, v. MID-SOUTH FOUNDATION FOR MEDICAL CARE, INC., et al., Defendants.
• Court: U.S. District Court — Western District of Tennessee

778 F. Supp. 405

GENERAL CARE CORP., d/b/a HCA Park West Medical Centers, Plaintiff, v. MID-SOUTH FOUNDATION FOR MEDICAL CARE, INC., et al., Defendants.

No. 89-2172-GA.

United States District Court, W.D. Tennessee, W.D.

April 4, 1991.

Margaret C. Mazzone, Margaret L. Behm, Dodson, Parker, Shipley, Behm & Seaborg, Nashville, Tenn., Clare N. Orman, Martin, Tate, Morrow & Marston, Memphis, Tenn., for General Care Corp.

R. Mark Glover, Charles M. Key, Memphis, Tenn., for Mid-South Foundation for Medical Care, Inc.

W. Hickman Ewing, U.S. Atty. by Robert Williams, Asst. U.S. Atty., Memphis, Tenn., Lisa A. Olson, Elizabeth Pugh, Attys., Dept. of Justice, Civ. Div., Washington, D.C., for Louis Sullivan.

ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING SECRETARY'S MOTION FOR SUMMARY JUDGMENT

GIBBONS, District Judge.

Before the court are the cross-motions for summary judgment filed by plaintiff General Care Corporation and defendant Secretary of the United States Department of Health and Human Services. Plaintiff General Care Corporation, d/b/a HCA Park West Medical Centers (hospital or General Care), alleges in this action for declaratory and injunctive relief that the proposed disclosure of certain information relating to the plaintiff hospital by defendant Mid-South Foundation for Medical Care, Inc., a Medicare Peer Review Organization (PRO or Mid-South), violates 42 U.S.C. § 1320c-9 and 42 C.F.R. Part 476. Plaintiff seeks a declaration that the applicable law and regulations do not require disclosure and a permanent injunction preventing defendant Mid-South from making such disclosure. Defendant Secretary argues that the applicable law and regulations require such disclosure by Mid-South. Mid-South takes no position on the merits of the controversy, but merely awaits the court's ruling as to whether disclosure is required.

The factual background is as follows. In December, 1986, Mid-South received a request to investigate the quality of medical care rendered to a patient by the plaintiff hospital. Mid-South investigated the case and notified the hospital that it had identified a problem with the quality of care provided to the patient, who died at the hospital in January 1986. In response, the hospital submitted a corrective action plan for use in future situations. The plan was subsequently accepted by Mid-South, which then provided follow-up monitoring of the situation.

The patient's daughter was dissatisfied with the responses she received from Mid-South when she inquired about the PRO investigation. In the final written response to her inquiries, the PRO described its investigation and findings and stated that corrective action would be taken by the hospital. Still not satisfied, in 1988 the daughter had the legal representative of the estate of the deceased request further disclosure from Mid-South. Specifically, he requested

(1) the medical records used in the investigation;

(2) a copy of defendant Mid-South's initial notice to the plaintiff hospital of its concerns with some of the hospital's procedures, and the letter requesting a corrective action plan;

(3) a copy of the hospital's response to defendant Mid-South and a corrective action plan; and

(4) a copy of defendant Mid-South's acceptance of the hospital's corrective action plan and followup monitoring plans.

Exhibits 8-11, In Camera Declaration of Patricia A. Booth. The hospital objected to the disclosure of items 2-4 and instituted this suit, arguing that the regulations do not permit such disclosure. The court granted a temporary restraining order prohibiting disclosure on March 1, 1989, that remains in effect by stipulation until resolution of the case on the merits.

The Secretary has interpreted the regulations to require disclosure of the type of information about a hospital which is at issue here. He argues that all hospital-specific information has been deliberately excluded from the definition of confidential information, thereby rendering it nonconfidential.

Plaintiff argues that the information sought to be disclosed is regarded as "confidential" and nondisclosable under the applicable regulations, see 42 C.F.R. § 476.101, since it is not expressly listed as nonconfidential information at 42 C.F.R. § 476.120. Also, plaintiff asserts that the Secretary's internal interpretation is not entitled to deference.

The parties agree that there are no genuine issues as to any material fact, and that disposition of the case on cross-motions for summary judgment is appropriate. The issues in this case are essentially ones of statutory construction and legislative history, which are questions of law properly resolved by summary judgment. See Oklahoma ex rel. Dep't of Human Servs. v. Weinberger, 741 F.2d 290, 291 (10th Cir. 1983); Dubuque v. Yeutter, 728 F.Supp. 303, 308 (D.Vt.1989).

To determine whether the applicable statute and regulations require the proposed disclosure, the court must decide whether the information at issue is confidential or nonconfidential within the meaning of the statute and regulations. A resolution of this issue requires a review of the relevant statutes and regulations.

The Peer Review Improvement Act of 1982 generally prohibits the disclosure of information acquired by a PRO in carrying out its functions under a contract with the Department of Health and Human Services. Congress delegated to the Secretary, however, the authority to create exceptions to the general rule of confidentiality and nondisclosure:

(a) ... Any data or information acquired by any such organization in the exercise of its duties and functions shall be held in confidence and shall not be disclosed to any person except —

....

(2) in such cases and under such circumstances as the Secretary shall by regulations provide to assure adequate protection of the rights and interests of patients, health care practitioners, or providers of health care....

42 U.S.C. § 1320c-9. In addition to 42 U.S.C. § 1320c-9, the further statutory basis for the promulgation by the Secretary of regulations which permit disclosure of information is found at § 476.103, which provides in pertinent part:

(b) Section 1160 of the Social Security Act provides that PRO information must be held in confidence and not be disclosed except where —

(2) Specifically permitted or required under this subpart of the regulations.

42 C.F.R. § 476.103.

Disclosure is thus prohibited, absent a specific provision in the regulations requiring or permitting disclosure. The limited circumstances in which disclosure is permitted are found at 42 C.F.R. Part 476, § 476.120, entitled "Disclosure of Nonconfidential Information." While the regulations do not specifically define "nonconfidential information," they do list nine types of material that constitute nonconfidential information and are subject to disclosure.

The regulations regarding the acquisition, protection, and disclosure of confidential information define "confidential information" as the following:

(1) Information that explicitly or implicitly identifies an individual patient, practitioner or reviewer.

(2) Sanction reports and recommendations.

(3) Quality review studies which identify patients, practitioners or institutions.

(4) PRO deliberations.

42 C.F.R. § 476.101(b) (emphasis added). The regulations do not expressly address the type of information at issue in this case.

The Secretary first argues that information which identifies hospitals was deliberately excluded from the definition of confidential information found at 42 C.F.R. § 476.101(b)(1), thereby rendering it nonconfidential and disclosable. The Secretary argues that confidential information was explicitly defined to include information which identifies "an individual patient, practitioner, or reviewer," but purposely omitted information which identifies hospitals from the list. In support of this position the Secretary cites 50 Fed.Reg. 15,350 (1985), where thirty-nine commenters on the proposed rule objected to the exclusion of hospital-specific information on the grounds that hospitals should be afforded the same protection as practitioners in terms of disclosure policies. The Secretary responded that

Section 1160(a)(2) of the Act states that the Secretary shall provide by regulation for adequate protection of the interests of patients as well as for practitioners and providers. Public interest is served by providing access to certain PRO data by the public or by agencies that have public responsibilities to which PRO data are relevant. PROs deal with matters of great public concern — the provision and cost of health care.

They are, therefore, an important source of information to aid consumers and consumer organizations in reaching informed decisions about the types of health care services that are offered. Also, the policy of disclosure of provider-specific, but not practitioner specific information is supported by recommendations in the congressionally mandated Institute of Medicine October 1981 study entitled "Access to Medical Review Data: Disclosure Policy For Professional Standards Review Organizations".

50 Fed.Reg. 15,350 (1985).

The proposed rule and the current regulations clearly omit hospital-specific information from the list of information that is confidential. It is not clear, however, what is meant by hospital-specific information (or "provider-specific" information), or how broadly the Secretary intended the term to be applied. The Secretary argues that the exclusion is very broad and affects all hospital-specific information (i.e. any information which mentions a hospital by name, unless otherwise defined as confidential), including all the information at issue in this case. Federal Defendant's Memorandum in Support of Motion for Summary Judgment, p. 13. The Secretary urges the court to use great deference when reviewing the agency's internal interpretation of the regulation.

The plaintiff hospital argues that the...