Kate Symmonds v. Executive Office of Health & Human Services (SPR 20221962)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 8, 2022 SPR22/1962 Shara Bedard Records Access Officer Executive Office of Health and Human Services One Ashburton Place, 11th Floor Boston, MA 02108 Dear Ms. Bedard: I have received the petition of Katherine Symmonds, Esq., of Massachusetts Law Reform Institute, appealing the response of the Executive Office of Health and Human Services (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 22, 2022, Attorney Symmonds requested: 1. Any public records that describe MassHealth’s current policies & practices for: a. Assessing overpayments against MassHealth recipients or providers, b. Notifying MassHealth recipients or providers of overpayments and appeal rights, and/or c. Collecting overpayments from MassHealth recipients or providers. 2. Any public records containing data recording the statistics on the following, for any period of time in the past three years: a. The number of overpayments assessed against MassHealth recipients, b. The average and/or total dollar amount of overpayments assessed against Masshealth recipients, c. The type of overpayment assessed against MassHealth recipients (i.e. cash overpayments such as premium assistance, overpayments for claims paid; overpayments for capitation payments, etc.) d. The number of overpayments appealed by MassHealth recipients and the outcomes of those appeals, e. The collection methods employed to recover overpayments assessed against MassHealth recipients, f. The dollar amount recovered by such collection methods. 3. Copies of form notices or other de-identified information sent to members relating to MassHealth overpayments, and collection of MassHealth One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Shara Bedard SPR22/1962 Page 2 September 8, 2022 overpayments, in English and any other language in which such communications are currently available. 4. Any public records containing any of the following information about MassHealth overpayment claims assessed against MassHealth recipients that are currently open: a. The total number of such overpayment claims; b. The number of overpayment claims in repayment; c. Of those overpayment claims in repayment, the number that have defaulted for failure to pay according to the terms of the repayment plan. d. The number of overdue overpayment claims 5. Any public records containing any of the following information about MassHealth overpayment claims assessed against MassHealth providers and/or managed care plans: a. The total number of such overpayment claims for any period of time in the past three years. b. The total amount of money MassHealth collected from such overpayment claims for any period of time in the past three years. 6. If any of the responsive documents contain abbreviations or terms of art not described in that document, please also supply public records explaining or defining those abbreviations or terms of art. On May 26, 2022, the Office responded. Unsatisfied with the response, Attorney Symmonds petitioned this office and this appeal, SPR22/1962, was opened as a result. As a result of discussions between Attorney Symmonds and the Office, Attorney Symmonds withdrew Request Number 5 and Request 2(d). Additionally, the request has been limited to records relating to the MassHealth Premium Assistance program over the past three years. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Att’y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record.

Shara Bedard SPR22/1962 Page 3 September 8, 2022 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Office’s May 26th Response In its May 26, 2022 response, the Office provided the following: Item # 2:  There were 389 overpayments assessed against MassHealth recipients in the past three years.  The average dollar amount of overpayments assessed against Masshealth recipients in the past three years was $1,303.00.  MassHealth follows the requirements for debt collection as outlined in 815 CMR 9 to recover overpayments assessed against MassHealth recipients.  MassHealth recovered $166,429.00 through such collection methods in the past three years…. Item # 4  There are currently 741 total overpayment claims.  There are presently no overpayment claims in repayment.  As there are currently no overpayment claims in repayment, there are none that have defaulted for failure to pay according to the terms of the repayment plan.  There are currently no overdue payment claims. Current Appeal In her appeal, Attorney Symmonds asserts that regarding Request Number 2, [the Office] responded to 2(a), (b) and (f) with numbers, but did not produce any of the requested records or claim that such records don’t exist or are exempt from disclosure. The records I am seeking are public records within the meaning of G.L. c. 66 § 10 and G.L. c. 4 § 7 and not subject to any exemption. Without the responsive records, the numbers cited are out of context, unverifiable, and non- responsive. Further [the Office] responded to 2(e) by citing 815 CMR 9. This is not responsive: I asked for records recording which collection methods were actually used....Further, [the Office’s] response to Request 2(f) simply lists a total number of the debt that was collected, without specifying how much was recovered by each debt collection method used. No responsive records which might contain this information were produced. Regarding Request Number 4, Attorney Symmonds asserts that,

Shara Bedard SPR22/1962 Page 4 September 8, 2022 While it might be true that no open overpayment claims are currently in repayment or undergoing collection, it’s impossible to believe that none of the 741 open overpayment claims were in default or overdue before [the Office] stopped sending overpayment notices. Similar to the inadequacy of [the Office’s] response to Request Number 2, in response to Request Number 4 the Office did not produce any of the requested records or claim that such records don’t exist or are exempt from disclosure. The records I am seeking are public records within the meaning of G.L. c. 66 § 10 and G.L. c. 4 § 7 and not subject to any exemption. In light of the claims made by Attorney Symmonds, it is unclear if the Office possesses additional records that may be responsive to her request. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). To the extent that additional records exist, I find the Office must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). Conclusion Accordingly, the Office is ordered to provide Attorney Symmonds with a response to her request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Katherine Symmonds, Esq.