In the Matter of New York Ass'n of Homes and Services for the Aging, Inc. v. Novello

• Decision Date: 23 December 2004
• Docket Number: 96240.
• Citation: 786 N.Y.S.2d 827,13 A.D.3d 958,2004 NY Slip Op 09574
• Parties: In the Matter of NEW YORK ASSOCIATION OF HOMES AND SERVICES FOR THE AGING, INC., Appellant, v. ANTONIA C. NOVELLO, as Commissioner of Health, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

13 A.D.3d 958

786 N.Y.S.2d 827

2004 NY Slip Op 09574

In the Matter of NEW YORK ASSOCIATION OF HOMES AND SERVICES FOR THE AGING, INC., Appellant, v. ANTONIA C. NOVELLO, as Commissioner of Health, et al., Respondents.

96240.

Appellate Division of the Supreme Court of the State of New York, Third Department.

December 23, 2004.

Appeal from a judgment of the Supreme Court (Clemente, J.), entered August 29, 2003 in Albany County, which, inter alia, dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Department of Health denying petitioner's Freedom of Information Law requests.

MUGGLIN, J.

In New York, the department of social services in each county determines eligibility for Medicaid assistance. As part of this process, an applicant's net available monthly income (hereinafter NAMI) is calculated and stored on a centralized client data base known as the principal provider file (hereinafter PPF) which can then be extracted by the Department of Health (hereinafter DOH). Nursing homes (hereinafter providers) serving Medicaid recipients are required to deduct NAMI before submitting the balance of the bill to Medicaid for payment. As part of its obligation to insure compliance with Medicaid regulations, DOH conducted a trial audit to determine if NAMI amounts were correct on claims submitted for payment to Medicaid by providers. As part of this process, NAMI actually deducted by the providers was compared to NAMI as shown in the PPF and differences were recorded in a column entitled "over/underpaymt." The theoretical result produced — that underpayments exceeded overpayments — was field tested at a number of nursing homes and resulted in the finding that only overpayments were validated. Respondents assert underpayments of Medicaid could only result from a provider reporting that it received more NAMI than it actually did — a proposition both absurd in the abstract and proven false by the field audit. Respondents also assert that the comparison of the figures showed a fictitious and nonexistent underpayment of Medicaid to the providers only because many providers learned of increases in NAMI, and deducted them, before the county departments of social services did, resulting in some lag time before the PPF figures were brought into conformity with the actual amounts of NAMI.

Petitioner is a not for profit association representing over 300 nonprofit nursing homes and 200 other not for profit health care providers. Acting pursuant to the Freedom of Information Law (see Public Officers Law art 6 [hereinafter FOIL]), petitioner requested from DOH "the facility-specific reports that identify the patients for whom the NAMI amounts, recorded on the [PPF], were less than the amount reported on the provider claim, resulting in a possible `underpayment.'" Respondents first asserted that the reports do not exist and, second, claimed that disclosure of a patient's medical history would be an unwarranted invasion of privacy under Public Officers Law § 87 (2) (b) and that such records were exempt from disclosure pursuant to Public Officers Law § 87 (2) (a). In opposition to this CPLR article 78 proceeding challenging DOH's denial of the FOIL request, respondents submitted an affidavit of the relevant state employee which, among other things, stated that the "so-called underpayments did not actually result in an underpayment to any provider, and in fact, definitely did not exist." Supreme Court dismissed the petition finding that DOH neither maintained nor compiled the requested information and has no ability to run such a report.

Petitioner appeals, contending that the records do exist and Supreme Court's denial violates the legislative intent of FOIL. Specifically, petitioner argues that DOH's summary computer report of NAMI overpayments and underpayments among nursing homes statewide is evidence that DOH's computer database must contain facility-specific records of NAMI underpayments.

It is well settled that "all agency records are presumptively open to the public absent a specific exemption from disclosure under Public Officers Law § 87 (2)"...