James Marra v. Executive Office of Health & Human Services (SPR 20241493)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 30, 2024 SPR24/1493 Berlinda Bernard Records Access Officer Executive Office of Health and Human Services 1 Ashburton Place, Room 1109 Boston, MA 02108 Dear Ms. Bernard: I have received the petition of James Marra, Esq., of Suburban Home Health Care, Inc., 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 April 17, 2024, Attorney Marra requested: historical data (claim number, patient name, payment amount, final Medicare decision (yes/no) on whether it would pay for the home health care services, etc.) for TP [Third Party] Appeals Unit post payment reviews that were conducted to determine who was the correct payer (MassHealth or Medicare) for home health services that were to MassHealth members…For the period of 6/2017 – 6/2023…” The Office provided a response on May 9, 2024. Unsatisfied with the Office’s response, Attorney Marra petitioned this office and this appeal, SPR24/1493, was opened as a result. 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. See G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also 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

Berlinda Bernard SPR24/1493 Page 2 May 30, 2024 Dist. Attorney 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. 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. Current Appeal In his May 16, 2024 appeal petition, Attorney Marra contends: Pursuant to controlling Massachusetts law [G. L. c. 118E, § 49] – “the use or disclosure of information concerning applicants or recipients shall be limited to purposes [it does not specify individuals or entities] directly connected with the administration of the medical assistance programs [which includes MassHealth and its authorized providers]…” Suburban as an authorized MassHealth “provider,” already has the sensitive (and protected) medical records and personal information… Pursuant to controlling federal health privacy law (HIPAA, 42 U.S.C. 1320d, et seq., and C.F.R. parts 160 and 164, which generally preempts a less stringent provision of State law), Suburban is a “covered health care entity.” A covered entity (MassHealth) may disclose protected health information to another covered entity (Suburban) or a health care provider (Suburban) for the “payment activities” of the entity that receives the information… The Office’s May 9th Response In its May 9, 2024 response, the Office cited G. L. c. 118E, § 49 and 42 C.F.R. 431.300, et seq., 42 USC § 1320d, et seq. the Health Insurance Portability and Accountability Act (HIPAA), and 45 C.F.R. 160, 45 C.F.R. 164, and G. L. c. § 66A, the Fair Information Practices Act (FIPA) under Exemption (a) of the Public Records Law, and Exemption (c) of the Public Records Law for withholding responsive records. Status of Requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney Marra’s status as counsel to an authorized MassHealth provider

Berlinda Bernard SPR24/1493 Page 3 May 30, 2024 and party to the data requested will play no role in a determination as to whether the record should be disclosed or redacted under the Public Records Law. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. G. L. c. 118E, § 49, 42 C.F.R. §§ 431.300 – 431.302 In its May 9, 2024 response, the Office cited G. L. c. 118E, § 49, pursuant to 42 C.F.R. 431.300 et seq., which provide in pertinent part: (a) Section 1902(a)(7) of the [Public Health Service Act] requires that a State plan must provide safeguards that restrict the use or disclosure of information concerning applicants and beneficiaries to purposes directly connected with the administration of the plan… A State plan must provide, under a State statute that imposes legal sanctions, safeguards meeting the requirements of this subpart that restrict the use or disclosure of information concerning applicants and beneficiaries to purposes directly connected with the administration of the plan. Purposes directly related to plan administration include—

Berlinda Bernard SPR24/1493 Page 4 May 30, 2024 (a) Establishing eligibility (b) Determining the amount of medical assistance (c) Providing services for beneficiaries; and (d) Conducting or assisting an investigation, prosecution, or civil or criminal proceeding related to the administration of the plan. 42 C.F.R. §§ 431.300 – 431.302. The use or disclosure of information concerning applicants and recipients shall be limited to purposes directly connected with the administration of the medical assistance programs established under this chapter and the names of applicants and recipients shall not be published. G. L. c. 118E, § 49. In its May 9, 2024 response, under Exemption (a) and G. L. c. 118E, § 49, and 42 C.F.R. §§ 431.300 – 431.302, the Office stated, “MassHealth claims is protected from disclosure.” I find that the records withheld are the types of records contemplated under G. L. c. 118E, § 49. Consequently, I find that the Office has met its burden to withhold the records under Exemption (a) of the Public Records Law and the statute cited above. Where I find that the Office has met its burden to withhold the requested records pursuant to G. L. c.118E, § 49, as it operates through Exemption (a) of the Public Records Law, I decline to opine on the applicability of HIPAA, FIPA, and Exemption (c). Conclusion Accordingly, I will consider this administrative appeal closed. If Attorney Marra is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: James Marra, Esq.