AG says UK should release records on pediatric heart surgery program, which is under review

Attorney General Jack Conway has ruled that the University of Kentucky hospital violated the state Open Records Act by refusing to give a reporter for the university-owned radio station records relating to the work of the chief of cardiothoracic surgery, who has stopped doing surgery on children. UK refused to let Conway's staff examine the records to evaluate UK's claimed need for confidentiality.

After inquiries by Brenna Angel of WUKY, "UK announced that the hospital had stopped performing pediatric cardiothoracic surgeries pending an internal review," John Cheves writes for the Lexington Herald-Leader. Angel reports that she sought records on Dr. Mark Plunkett, left, who was also director of the pediatric and congenital heart program: "the date of Plunkett’s last surgery, the mortality rate of pediatric heart surgery cases, and documentation related to the program’s review." She sought no patient-specific data.

UK denied her request, citing the federal Health Insurance Portability and Accountability Act and arguing that release of the information could lead to the identification of one or more patients because Plunkett was doing so few surgeries on children. It also cited HIPAA in refusing to let Conway's staff review the records. Conway rejected that argument, noting that HIPAA does not supersede state laws and even make allowances for them.

Because it deals with the Open Records Act, Conway's decision has the force of law. UK can appeal the decision to circuit court within 30 days of March 27, the date of the decision. "UK spokesman Jay Blanton says officials are considering whether to file an appeal," Angel reports. The decision was publicly released Monday, the same day UK held a press conference about "the progress UK Healthcare has made in cardiology," she notes. "Yet the pediatric cardiothoracic surgery program remains under review, and patients from Central and Eastern Kentucky are being referred to hospitals out of state. Dr. Mark Plunkett remains on staff."

When Angel asked Dr. Michael Karpf, UK's executive vice president for health affairs, to comment, he replied, “We’ll have something to say about that in a little while.” Cheves notes, "UK recruited Plunkett, a noted surgeon at the University of California at Los Angeles, in 2007 to strengthen its pediatric heart program. He makes $700,000 a year, one of the highest salaries at UK." (Read more)

Read more here: http://www.kentucky.com/2013/04/01/2582150/uk-violated-open-records-law-in.html#storylink=cpy

Read more herehttp://www.kentucky.com/2013/04/01/2582150/uk-violated-open-records-law-in.html#storylink=cpy

Agency is pressured to re-post database of doctors' malpractice and disciplinary cases

U.S. Sen. Charles Grassley has joined journalists, academic researchers and consumer groups in calling on the Health Resources and Services Administration to put back online the National Practitioner Data Bank, a database of malpractice and disciplinary cases against doctors.

"In a strongly worded letter, the Iowa Republican, who has led investigations of fraud and waste in government health programs, said the now-removed file 'serves as the backbone in providing transparency for bad-acting health care professionals'," Duff Wilson of The New York Times reports. Grassley gave HRSA, part of the the Department of Health and Human Services, until Oct. 21 to hand over documents and answer a series of questions, ending with "What is your timeline for getting the database up and running again?"

For a PDF of Grassley's letter, click here. Under pressure, the agency has scheduled a conference call on the issue for Thursday, Oct. 13, from 1 to 2 p.m. Eastern Time.

The database "was created in 1986 for hospitals, medical boards, insurers and others to share information so that bad doctors do not slip through cracks in reporting," Wilson writes. The law makes doctors' names confidential, but the database has a Public Use File for researchers and journalists, in which doctors are identified only by numbers.

Some journalists have been able to identify doctors using information from other sources, such as lawsuits. "After a complaint by one doctor identified by The Kansas City Star, the agency threatened the newspaper reporter with a fine, pulled the doctor’s file from its Web site on Sept. 1 and began a review of how to hide the identities better," Wilson reports. "Its actions provoked protests" from the Association of Health Care Journalists, the Society of Professional Journalists, the Reporters Committee for Freedom of the Press and other groups. In a letter, they told HRSA, "Nothing in the Public Use File can be used to identify individuals if reporters or researchers don’t already know for whom they are searching."

Grassley wrote, "It seems disturbing and bizarre that HRSA would attempt to chill a reporter’s First Amendment activity with threats of fines for merely 'republishing' public information from one source and connecting it with public information from another. A journalist’s shoe-leather reporting is no justification for such threats or for HRSA to shut down public access to information that Congress intended to be public."

The Public Use File can be downloaded from the website of Investigative Reporters and Editors, one of the groups, protesting its removal from the HRSA site, but "that file will be more and more out-of-date as the dispute goes on," Wilson notes. She also reports that Robert E. Oshel, associate director for research and disputes in the Division of Practitioner Data Banks, says the agency is misinterpreting the law. (Read more)

Budget deal hits federal transparency websites

"Government transparency websites likely will be scaled back or even eliminated as a result of a 75 percent budget cut that congressional leaders and the White House agreed to last week," William Matthews of GovExec.com writes for National Journal.

The $34 million Electronic Government Fund, being cut to $8 million, "supports websites such as http://www.usaspending.gov/ and the IT Dashboard, which provide public access to vast amounts of information on how the government spends money," Matthews writes. "Another transparency site, http://www.data.gov/, also is endangered, transparency advocates said. The site offers access to 380,000 government agency data sets as diverse as climate change statistics and export licensing records." (Read more)

Obama administration failing to meet open government goals, Knight survey finds

The Obama administration is failing to fulfill its promise of improving Freedom of Information responsiveness by federal agencies, according to a Knight Open Government Survey by the National Security Archive, released March 13 for Sunshine Week.

In a news release, the Knight Foundation reported that fewer than half of the federal agencies have complied with a presidential memorandum Barack Obama signed in January 2009 instructing federal agencies to “usher in a new era of open government.”

The Knight Open Government Survey found that 49 of the 90 agencies had made concrete changes in their procedures to process requests for government records covered by the Freedom of Information Act. A year earlier, the number was 13. The news release said after the 2010 survey was released "The resulting national headlines sparked a new White House call to all agencies to show concrete change."

“At this rate, the president’s first term in office may be over by the time federal agencies do what he asked them to do on his first day in office,” commented Eric Newton, senior adviser to the president at the John S. and James L. Knight Foundation, which funded the study. “Freedom of information laws exist to help all of us get the information we need for this open society to function. Yet government at all levels seems to have a great deal of trouble obeying its own transparency laws.”

Read the entire report here.

States can't reveal drug costs because federal law makes them secret; Montana governor blames drug lobby, Ky. contractor

When Montana journalists asked Gov. Brian Schweitzer to reveal the prices the state pays for drugs in government health care programs, he said he wanted to tell them, but had to refuse because federal law keeps the information secret. Congress is "bought and paid for" by drug manufacturers, said Schweitzer, a conservative Democrat with a maverick streak. "Congress has created a system so that even the states, which buy tens of millions of dollars worth of these drugs, have no idea what we pay on a per-unit basis."

"Actually, Schweitzer does know what the state pays — but, before acquiring the information last summer, had to have his chief counsel sign a written agreement not to disclose it publicly," Mike Dennison of the Billings Gazette reports. "Schweitzer said the drug industry wants to keep secret the rebates it gives to states buying drugs for public programs, because it doesn't want regular retail customers to know how much more they're paying for drugs."

Schweitzer obtained the information last summer when he was trying to compare what the federal-state Medicaid program for the poor and disabled was paying for drugs compared to the cost in Canada. Montana news outlets argued that the state open-records law requires him to release "documents in his possession that list public money paid out or received by the state," Dennison reports. But the governor's chief legal counsel "said federal law bars disclosure of the information requested by the news organizations, and that federal law pre-empts Montana's open-records laws."

Also, "Magellan Medicaid Services, the Virginia-based contractor that negotiates additional drug rebates for the state Medicaid program, also claimed that the rebate information is a trade secret protected from public disclosure," Dennison reports. MMS, which works for several states including Kentucky, said revealing the information would hamper its ability to compete with other companies doing the work." It seems to us that if all such information from all states were released, that wouldn't be a problem.

Open-records request trumped by federal law

An attempt by The Northerner, the student newspaper of Northern Kentucky University, to monitor student grant applications ran afoul of a federal law relating to student privacy, according to an opinion of the Kentucky attorney general's office issued Feb. 15.

Jesse Call, a reporter for the newspaper, sought to examine grant applications submitted to the Student Government Association. But the university denied the request, citing student privacy requirements under federal law. Even though the grant applications were submitted to the student government, the university argued the association administers the grant program under the "direction and guidance" of the NKU Division of Student Affairs and that the records contain personal information of the students.

After the attorney general's office inspected the grant application, it agreed with the university's position, saying there is a substantial public interest in ensuring that student government fairly awards the Scott Wurster Book/Special Needs Grants, but "We concur with NKU in its stated position that the broadly worded definition of 'education records'" in the Federal Educational Rights and Privacy Act "extends to applications submitted by individual students for the grants."

Federal government sets new transparency goals

The Obama adminstration has made a major move toward realizing the president's promise, upon taking office, of more transparency in government. This has impact not just in Washington, but at the state and local offices of federal agencies.

All federal agencies have been ordered to carry out specific tasks and meet deadlines to increase public access to government information. The Office of Management and Budget last week issued an 11-page directive that also calls for agencies to use technology to distribute information, without waiting for people to file Freedom of Information Act requests.

The directive says that in order "to create an unprecendented and sustained level of openness and accountability in every agency, senior leaders should strive to incorporate the values of transparency, participation and collaboration into the ongoing work of their agency."

Among the tasks set out for federal agencies to meet in the first 45 days are:

-- Publish three "high-value" sets of data that have not previously been released in a downloadable format. (This could produce several local news stories, since federal agencies amass a huge amount of data.)

-- Designate a high-level official to be accountable for spending data made available to the public.

-- Form a new working group of senior officials to address transparency and accountablity issues.

The order also sets out other tasks to be accomplished in 60 or 120 days, including more open-goverment Web sites and plans for more transparency.

The full text of the OMB order can be found here.