FINAL DETERMINATION IN THE MATTER OF PROPUBLICA, INC., Complainant v.

PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE, Respondent : : : : : : : : : :

Docket No.: AP 2011-0905

INTRODUCTION Charles Ornstein, on behalf of ProPublica, Inc., (the Requester) submitted a request to the Pennsylvania Department of Public Welfare (DPW) pursuant to the Right-to-Know Law, 65 P.S. 67.101 et seq., (RTKL), seeking Medicaid/Medical Assistance (MA) reimbursed prescription information by doctors. DPW asserted several statutory and regulatory exemptions and the social services exception. The Requester appealed to the Office of Open Records (OOR). For the reasons set forth in this Final Determination, the appeal is granted in part and denied in part and DPW is required to take further action as directed. FACTUAL BACKGROUND On May 19, 2011, the Requester submitted a right-to-know request seeking: An electronic spreadsheet containing data on prescribing practices within the state Medicaid program in 2009 and 2010. Specifically [] information on the drugs prescribed by individual doctors that were reimbursed by Medicaid, separated by year [with] the following fields for each drug and doctor: NDC Code; Brand Name;

Number of Prescriptions; Unit Count; Amount Paid; Provider Name; Provider Unique ID; Provider Address (including City/Zip); Title/type of Provider (MD, DDS, OD, etc.) (Request). The Requester advised it is willing to accept the information in (1) aggregate form (by doctor, by drug) or (2) in raw claims format, with all patient identifiers removed, and noted that the information sought includes information related to managed care enrollees. Further, the Requester sought a waiver of fees as a nonprofit news organization based in New York. After timely invoking an extension, Open Records Officer (ORO) Andrea Bankes, responded, characterizing the Request as seeking three types of formats as follows: (1) An electronic spreadsheet Tabulation No. 1; (2) In aggregate form Tabulation No. 2; (3) In raw claims format Set of All MA Drug Claims for 2009 and 2010. As to Tabulation Nos. 1 and 2, DPW advised that the records do not exist in that format and has no obligation to create a record pursuant to Section 705. As to Tabulation No. 2, DPW also argued that the records sought do not meet the definition of aggregate data as defined in the RTKL because it identifies physicians by title and provider type. As to the Set of all MA Drug Claims 2009 and 2010, DPW denied the Request in its entirety, representing that the MA Program only pays for drugs that are prescribed for MA recipients such that every claim submitted for payment identifies MA recipients. DPW explains the records at issue identify the recipients, the practitioner that prescribes the drugs, the drugs and the pharmacy that fills the prescription and submits the claim for payment referred to a MA Drug Claim. DPW cites

Section 708(b)(1)(i) (loss of federal funds), Section 708(b)(5) for medical records and Section 708(b)(28) for social services records. Due to the identification of the MA recipients, DPW advised each record is recipient specific and also protected by the following state and federal laws: 62 P.S. 404(a)(1) stating no information shall be furnished regarding any persons application for, or receipt of, medical assistance. 55 Pa. Code 105.1(e) 55 Pa. Code 105.3(b) 42 U.S.C. 1396a(a)(7) 42 U.S.C. 1320b-7 42 C.F.R. 431.300-.307 45 C.F.R. Parts 160, 162 and 164 (Health Insurance Portability and Accountability Act, HIPAA regulations)

(Denial). Since it denied the Request, DPW did not address the request for a fee waiver. The Requester timely appealed, arguing the records constitute aggregated data that does not identify MA recipients and is thus not protected. The Requester argues that the data sought does not include any MA recipient identified information and that the information can be provided in redacted form. The Requester also asserts that the information he seeks is provided by other states, and had been provided by the State of Pennsylvania as indicated in the United States Supreme Court case Sorrell v. IMS Health, 131 S. Ct. 2653 (U.S. 2011). DPW supplemented the record with a submission from Senior Assistant Counsel Leonard Crumb and an affidavit of Barry Buckingham, Senior Medical Economist for the Office of MA Programs for DPW (Affidavit). DPW argues the records are not public because they are protected by state and federal laws, and there is no obligation to redact them because they do not fall within the definition of public record. DPW asserts the records are not maintained in either an electronic spreadsheet or aggregated by doctor or drug, and thus do not exist in the format sought. DPW explains that the records it transmits to Centers for Medicare and Medicaid

Services (CMS) pertaining to the total number of units and dosages for outpatient drugs paid for by MA do not include identifiers for physicians as sought in the Request. DPW advises the statement set forth in Sorrell regarding the information supplied by Pennsylvania should not be attributed to DPW and does not refute the Affidavit contents. In the Affidavit, Buckingham attests that the records pertain to individual prescriptions prescribed to MA recipients submitted by pharmacies for reimbursement to DPW. He attests that the fields for which the Request seeks information are identified in the PROMISe Manual, which is available through DPWs website as the PA PROMISe Companion Guide. He explains these pharmacy claims are adjudicated through DPWs online claim processing system and include the following fields: date of birth; patient location; pregnancy indicator; cardholder identification number; cardholders first and last name; eligibility classification and other coverage code. He advises a pharmacy claim does not include the prescribers name and

address, including zip code, or title/type of provider as specified in the Request; however, he notes such information is available in other DPW databases for providers enrolled in the MA Program. Pharmacy claims submitted to a Medicaid Managed Care Organization (MCO) are copied to DPW, but are maintained in a separate database from the pharmacy claims submitted to DPW directly for payment. DPW submitted the Pharmacy Billing Request and fields that comprise the electronic claim submitted by a Provider Pharmacy as attachments to the Affidavit. Buckingham also attests that no spreadsheet [containing all the requested information] is possible and that records containing prescriber information for non-enrolled prescribers do not exist. He explains that provider pharmacy claims do not include prescriber data and that no single database maintained by DPW contains all the data sought in the Request, to include prescriptions for all MA enrollees, including of MCOs. He attests the aggregated data does not

exist separated by doctor or by drug. While admitting to existence of raw claims format records, he advises they do not contain prescriber data and, as recipient specific, are exempt. With regard to the claim that Pennsylvania released this data previously as quoted in Sorrell, Buckingham attests that the context of the quote from the case shows the data is counterdetailed, and that, given his position, he would have been aware of any such release of prescriber-specific data for 2009 or 2010 as sought in the Request had the release been made by DPW. LEGAL ANALYSIS The RTKL is designed to promote access to official government information in order to prohibit secrets, scrutinize the actions of public officials and make public officials accountable for their actions. Bowling v. OOR, 990 A.2d 813, 824 (Pa. Commw. Ct. 2010), appeal granted 15 A.3d 427 (Pa. 2011). The OOR is authorized to hear appeals for all Commonwealth and local agencies. See 65 P.S. 67.503(a). An appeals officer is required to review all information filed relating to the request. 65 P.S. 67.1102(a)(2). An appeals officer may conduct a hearing to resolve an appeal. The decision to hold a hearing or not hold a hearing is discretionary and nonappealable. Id. The law also states that an appeals officer may admit into evidence testimony, evidence and documents that the appeals officer believes to be reasonably probative and relevant to an issue in dispute. Id. Here, neither party nor the participant requested a hearing and the OOR has the requisite and necessary information before it to adjudicate the matter. DPW is a Commonwealth agency required to disclose public records. 65 P.S. 67.102; 65 P.S. 67.301. Records in possession of a Commonwealth agency are presumed public unless exempt under the RTKL or other law or protected by a privilege, judicial order or decree. 65 P.S. 67.305. Upon receipt of a request, an agency is required to assess whether a record requested is within its possession, custody or control and respond within five business days to the 5

requester. 65 P.S. 67.901. DPW asserted several statutes and regulations as well as exceptions under the RTKL to protect the information at issue. Section 708 of the RTKL clearly places the burden of proof on the public body to demonstrate that a record is exempt. In pertinent part, Section 708(a)(1) states: [t]he burden of proving that a record of a Commonwealth agency or local agency is exempt from public access shall be on the Commonwealth agency or local agency receiving a request by a preponderance of the evidence. 65 P.S. 67.708(a)(1). Preponderance of the evidence has been defined as evidence which as a whole shows that the fact sought to be proved is more probable than not. BLACKS LAW DICTIONARY 1064 (8th ed.); see also Commonwealth v. Williams, 567 Pa. 272, 786 A.2d 961 (2001). 1. DPW is not required to create or format responsive records In its response, DPW advised that the Request sought the information in specific formats, in which it did not presently exist, and would require the creation of records. Section 705 provides that an agency shall not be required to create a record, format or otherwise organize a record in response to a right-to-know request. As an initial matter, the OOR notes there is a lack of correlation between the Request and the response. The Requester sought specific information and advised he would accept in an alternate aggregated format or raw claims format as he was interested in the information itself and was unaware of the format in which it is maintained. DPW submitted sufficient evidence to substantiate that it does not maintain prescriber data for non-enrollees of the MA Program and does not possess all of the requested fields/information in an electronic spreadsheet or in aggregated form, by doctor/by drug. Sherry v. Radnor Tp. Sch. Dist., 20 A.3d 515 (Pa. Commw. Ct. 2011) (holding an affidavit may serve as

sufficient evidence of the nonexistence of records under the RTKL); Moore v. OOR, 992 A.2d 907, 909 (Pa. Commw. Ct. 2010). Therefore, DPW cannot disclose records in these forms. The case does not end there, however, because the Requester sought the information in raw claims form, in which some of the requested information exists. There is no dispute that pharmacy claims submitted to DPW for payment through the PROMISe system contain some of the requested information. From review of the Request and the submissions, the OOR concludes that these are responsive records maintained by DPW. Based upon the Affidavit, records

containing prescriber data do not exist when the prescribers are not part of the MA Program and may not be submitted for claims reimbursed through MCOs. Claims reimbursed through MCOs, as opposed to those paid by DPW directly, are copied to DPW but are not put into PROMISe and thus are not contained in the same database. Other than some prescriber data, DPW possesses records responsive to the Request. DPW does not substantiate that it does not have the information requested in any format, and an agency must provide responsive information in the manner in which it exists pursuant to Section 701. See, e.g., Township of Shohola v. Thomas, No. 578-2011-Civil (Pike Com. Pl. July 20, 2011). While DPW asserts that the information submitted in PROMISe and otherwise for reimbursement contains MA recipient-specific information, the Requester did not seek any recipient-specific information and redacting MA recipient information from responsive records does not constitute creation of a record. See generally Benkoski v. Twp. of Bear Creek, No. 1435 C.D. 2006, 2009 Pa. Commw. Unpub. LEXIS 168 at *5 n.6 (Pa. Commw. Ct. April 30, 2009) (Redaction, by definition, does not involve the creation of a new document; it is the careful editing of a document to remove confidential references) (citing BLACKS LAW DICTIONARY 1303 (8th ed. 2004)).

The allegation that the Requester has received such information from other states with all fields, including prescriber data, is of no relevance to this matter as the circumstances of the release are unclear and agencies may elect to release information without deeming it public. The reliance upon Sorrell that such data exists in the requested format is likewise misplaced as there has been no showing that the information was supplied by DPW or is in its possession. Only the existing raw claims data, to include the codes and types of prescriptions, units and payment amounts, and any provider data maintained remains at issue. 2. Asserted statutory and regulatory exemptions DPW asserted a number of federal and state laws to protect the pharmacy claims records from disclosure. From review of the language of the cited provisions, DPW failed to show that the records, in redacted form, are protected from disclosure. There is no dispute that the Requester did not seek recipient-specific information. The language of the Request states that recipient-specific information is not sought and agrees to its redaction in the event responsive records contain such information. Each of the statutes and regulations cited by DPW pertains to recipient-specific records. Title 55 of the Administrative Code provides the records concerning applicants and recipients shall be protected, 62 P.S. 404 protects information a recipient submits in order to receive benefits, not information that a pharmacy provider or prescriber submits in order to be reimbursed for services. The federal statutes cited as exemptions discuss the adequate safeguards a state must have in place to protect a recipients information from disclosure. information released is not tied to any MA recipient. DPW did not substantiate or argue that it could not redact recipient-specific information from disclosure. Instead, DPW asserted that due to the inclusion of recipient information as part None of the cited laws apply when the

of the data collected in the reimbursement process the entire record, including innocuous deidentified information regarding prescription practices, is protected. This construction does not comport with the Commonwealth Courts analysis in Bowling. Bowling acknowledges the

innocuous information contained in records that also contain protected information is not insulated from disclosure. See Bowling, supra at 825. DPW did not substantiate that the provider information, payment, prescription amount (dose/unit) is exempt under any of the cited statutes or regulations, or any exceptions in the RTKL. Accordingly, DPW does not overcome the presumption of openness as to such raw claims information and it must be disclosed. See 65 P.S. 67.708(a)(1). The Requester sought a fee waiver for any responsive records. DPW requested the OOR to remand the matter of the fee-waiver to DPW in the event any part of the Request is granted. However, as the fee waiver issue was not addressed below, it is not before the OOR and shall not be addressed here. CONCLUSION For the foregoing reasons, the appeal is granted in part and denied in part, and DPW is required to disclose existing raw claims data to the Requester within thirty (30) days, without recipient-specific information, and from which any confidential identifier numbers protected by Section 708(b)(6) may be redacted. Within thirty (30) days of the mailing date of this Final Determination, any party may appeal or petition for review to the Commonwealth Court. 65 P.S. 67.1301(a). All parties must be served with notice of the appeal. The OOR also shall be served notice and have an opportunity to respond according to court rules as per Section 1303 of the RTKL. This Final Determination shall be placed on the OOR website at:

http://openrecords.state.pa.us.

FINAL DETERMINATION ISSUED AND MAILED: August 10, 2011

LUCINDA GLINN, ESQ. APPEALS OFFICER Sent to: Charles Ornstein; Leonard Crumb, Esq.

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