This synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond.
On August 14, 2020, the OOR entered a Final Determination holding that some categories of information relating to personnel hired to work with infection prevention and control at a nursing home (“preventionists”) are producible under the RTKL, but that reports made by the preventionists to the home’s quality assessment and assurance (“QAA”) committee are exempt from production. Nicole Brambila and Public Source v. Bucks County, Dkt. No. AP 2020- (Aug. 14, 2020).
Background and Facts:
Nicole Brambila and Public Source (“Requester”) requested the following material from Neshaminy Manor, a Bucks County nursing home under the RTKL:
- Names of “preventionists,” their hire date and salary, who were employed to work with infection prevention and control program staff at Neshaminy Manor. (“Item 1”).
- The written standards, policies and procedures for the home’s infection control program. (“Item 2”).
- The member names on each facility’s quality assessment and assurance committee, their expertise, and the meeting dates for the committee in 2019 and to date in 2020. (“Item 3”).
- A copy of the last three reports by the preventionists to the QAA committee. (“Item 4”).
- A copy of each facility’s most recent annual review of the infection control program (Item 5″).
Bucks County (“County”) denied the Request, on the grounds that the requested records are confidential under federal and state law, specifically 42 CFR § 483.75(h) and the Medical Care Availability and Reduction of Error (“MCARE”) Act, 40 P.S. § 1301.311 (h). The County’s supporting affidavit, but not its response to the Request or its position statement on appeal, also attested that the records are confidential under the Disease Prevention and Control Law (“DPCL”)k 35 P.S. § 521,15.
Analysis and Holding:
The OOR quickly disposed of the County’s argument that the MCARE Act protects the requested material from production. The relevant section of the MCARE Act, 40 P.S. § 1301.311 (a), only applies to documents “which arise out of matters reviewed by the patient safety committee [of a medical facility]….” Slip op. at 4. However, “medical facility” is defined in the MCARE Act as an “ambulatory surgical facility, birth center, hospital or abortion facility.” A nursing home such as Neshaminy Manor, does not fall within this definition, and the County, which has the burden of proving that the records requested are confidential, did not explain how the MCARE Act’s protections applied.
The County fared better with regard to its argument that the records are protected from disclosure by 42 CFR § 483.75(h). (“Section 483.75(h)”) Section 483.75(h) states that a state may not require disclosure of a QAA committee’s records “except in so far as such disclosure is related to the compliance of such committee with the requirements of this section.” Slip op. at 5.
Brambila construed this provision to mean that a record that exists independently of the QAA committee and its purpose are not exempted from disclosure under Section 483.75(h). Thus, for example, Item 1, information about preventionists and their salaries, is not exempt from production under the RTKL because it serves other purposes than those of the QAA committee. Items 2, 3 and 5 were similarly held not to be protected, and OOR ordered their production as well. But Item 4, reports made by the preventionists to the QAA committee, were created expressly for that committee so it could perform its work. Accordingly, these reports were held to be protected under Section 483.75(h), and thus not producible under the RTKL.
The Final Determination quoted language from the Disease Prevention and Control Law (“DPCL”), 35 P.S. § 521.15, stating that “reports of diseases, any records maintained as a result of any action taken in consequence of such reports, or any other records maintained pursuant to this act or any regulations” were protected and could not be produced to anyone other than the Pennsylvania Department of Health or a local department of health, “except where necessary to carry out the purposes of this act.” Slip op. at 5. OOR did not find this argument persuasive, because the requested records in this case did not consist of “reports of diseases” or actions taken as a result of such reports.
Brambila reminds us that the OOR must and will refuse to order production of records otherwise eligible for production under the RTKL that are made confidential and protected from disclosure under a different statute or regulation.
Although the DPCL was rejected as a justification for protecting the documents requested in Brambila, there have been other recent Final Determinations concluding that the DCPL protected information about COVID infections and related information, However, precedent based on these determinations likely has been made obsolete by 2019 Pa. House Bill 2463, which added a new article to the Administrative Code. Under the new article, information used “for any rules, policies or actions taken by the Commonwealth in relation to a disaster declaration” is a public record under the RKTL. Moreover, the new article resets the clock for record requests made since March 6, 2020 by deeming those requests as being made on July 27, 2020, the effective date of the new article. Appeals construing the new statute with regard to requests for information related to COVID-19 and Governor Wolf’s disaster declaration likely will begin to appear in the near future.