ChapterCTNAELA
By David Craig Slepian, Esq.
Case results in the creation of a searchable database of Connecticut Medicaid Fair Hearing Decisions. NAELA Foundation support helped CTNAELA secure victory. Other NAELA Chapters can use CTNAELA’s success as a model for their own similar lawsuits.
Until recently, Connecticut Fair Hearing Decisions were essentially secret. They were not made public and the only way for attorneys to access them was if a colleague shared decisions on cases they handled. Often this was via the efforts of CTNAELA, which solicited its members’ postings of such decisions.
We are pleased to report that in January 2019, CTNAELA achieved a settlement of one of two lawsuits between CTNAELA and the Connecticut Department of Social Services (DSS), which forced DSS to create a searchable database of redacted decisions of all Medicaid Fair Hearing Decisions issued on or after January 1, 2013.
CTNAELA Past-President Matthew Stillman commented: “Despite facing years’ worth of resistance from DSS, this victory was the direct result of the tenacious efforts of CTNAELA attorneys David Craig Slepian and Henry C. Weatherby, as well as NAELA’s local and national support. Connecticut’s seniors are capably represented by CTNAELA and its attorney members. Great job by all!”
Freedom of Information Disclosure
The effort formally began in February 2016 when CTNAELA wrote to the DSS seeking disclosure pursuant to the Connecticut Freedom of Information Act (FOIA) CGS § 1-200 et seq of all Medicaid Fair Hearing decisions issued during the prior 3 years.
DSS denied the request arguing in chief that compliance would require revelation of protected health information, stating:
… the Medicaid fair hearing decisions requested are part of individuals’ Medicaid eligibility files and constitute individual client data/PHI (Personal Health Information) that is protected from disclosure under FOIA. Accordingly, the documents are being withheld from public disclosure pursuant to [Connecticut General Statutes §] 1-210(b)(10), which exempts “Records, tax returns, reports and statements exempted by federal law or general statutes…”. The DSS privacy statute (CGS 17b-90) and both HIPAA and Medicaid regulations prohibit the disclosure of client-specific information.
We responded by filing a second request, this time seeking redacted decisions, but again DSS denied on the same basis. CTNAELA then filed a Freedom of Information complaint against the Department of Social Services with the Freedom of Information Commission (FOIC).
We argued that federal Medicaid law requires that “the public must have access to all agency hearing decisions, subject to the requirements of subpart F of this part for safeguarding information” 42 C.F.R. §431.244(g), and that the DSS already has a protocol for “de-identifying” protected health information.
In its brief the State repeated its privacy argument and argued that federal law “restricts disclosure to purposes directly connected with the administration of the [State’s Medicaid] plan” and that CTNAELA had no such purpose.
Finally, at the FOIC hearing, faced with a losing hand, DSS contended that redacting the decisions would be overly burdensome, to which we responded we were willing to give the State time to issue the redacted decisions on a rolling basis.
The FOIC issued its decision in March 2017 approving the recommended finding of the FOI hearing officer, stating in part:
… adopting the DSS construction of CGS 17b-90 and the federal safeguarding mandate that such statute was enacted to effectuate, would render the safeguarding criteria so broad that they would swallow the general federal requirement that the public “must” have access to all agency final hearing decisions. … Moreover, the [DSS] own policies and procedures … provides direction on how to “de-identify” records with confidential health information. … The respondents shall provide the complainants with electronic copies of the requested records, once redacted… on a rolling basis …[with] all records disclosed … within one year.
The State appealed on April 27, 2017, and the case remains pending in the Connecticut Superior Court.
NAELA Foundation Supports CTNAELA’s Efforts
Shortly thereafter, CTNAELA President Amy Orlando secured a generous grant from the NAELA Foundation, for which we are most grateful, enabling CTNAELA to raise the stakes by bringing a separate action for injunctive and declaratory relief under 42 USC § 1983, in the United States District Court for the District of Connecticut. Represented by nationally known attorneys Rene H. Reixach, Esq. (and a member of the NAELA Litigation Committee) and our own Lisa Nachmias Davis, Esq., as local counsel, our complaint alleged that by refusing to provide the redacted decisions the State was violating 42 U.S.C. § 1396a (a)(3) and its implementing regulation 42C.F.R. § 431.244(g), and that it was violating the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States of America. We also claimed costs and attorneys’ fees under 42 U.S.C. § 1988.
This dual prong approach, which added the prospect of the State having to pay our costs and attorneys’ fees, proved to be a winning strategy. The DSS agreed to a settlement of the federal case that not only requires the DSS to create a searchable database of all Medicaid Fair Hearing Decisions beginning January 1, 2013, as requested in our original Freedom of Information requests, but also to do so prospectively, something that the FOIA does not encompass. The settlement was approved by the Court on November 29, 2018.
Why Is This Important to Your Practice?
What was gained? Access to copies of administrative Fair Hearing Decisions (Decisions) significantly improves our ability to represent our clients with regard to their rights and responsibilities under the Medicaid program. DSS policies and procedures are not necessarily set out in statute, regulations, or published documents but on occasion may come to light in such Decisions. In fact, Connecticut still has no formal regulations to implement the seminal changes made to Medicaid by the Deficit Reduction Act of 2005. We continue to operate under provisional regulations that have not been approved by the legislature. Access to the Decisions levels the playing field with the DSS. It allows practitioners to determine whether the DSS policies are being applied consistently throughout the state. We can use claims of inconsistency as another quiver in our bow. The fair hearing officers’ knowledge that their decisions will be subject to public access and expert scrutiny may lead them to do a better job both in terms of fairness of decisions and in laying out the legal basis of their decisions.
The success of this project reminds the DSS that CTNAELA is a force to be taken seriously and we hope will lead to progress in our efforts to work cooperatively with the DSS on behalf of the elderly and people with disabilities. Public access to the law is a cornerstone of a free society, and this settlement is a small but important piece of that foundation. CTNAELA showed that it could sustain a nearly 4-year effort spanning the terms of four fully supportive and engaged CTNAELA presidents (this author, Matthew Stillman, Esq., Amy Orlando, Esq., and Edward Lang, Esq.), and Boards. We are thankful for the unflinching support of NAELA, the NAELA Foundation, our officers and boards, and the insights and many hours of hard work of our legal counsel and especially this author’s co-committee member Henry C. Weatherby, Esq.