Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
By letter directed to Crestview Center on May 18, 2014, Antoinette Taylor requested "access to and an electronic copy of" the 2012-2014 Nursing Home Action Plan, the 2012-2014 Nursing Home Data Compendium, and the 2012-2014 Statement of Deficiencies and Plan of Correction for Nursing Home Requests for Crestview Center, Shelbyville, Kentucky, as well as the "listing of complaints of employment discrimination filed against Genesis Healthcare Corporation and its entities, including Crestview Center, Shelbyville, Kentucky for the past 20 years." Having received no response, 1 Ms. Taylor initiated this appeal by letter dated June 9, 2014. Cathlin Sullivan, Corporate Counsel -- HealthCare and Regulatory, Genesis HealthCare, LLC, responded on behalf of Crestview Center, a subsidiary of Genesis. Ms. Sullivan advised that Crestview Center is not a public agency within the meaning of KRS 61.870(1) and, therefore, is not subject to provisions of the Open Records Act. "Crestview does receive Medicaid and Medicare funds as payment for services rendered, " she noted, but per 93-ORD-90 such funds "are excluded from the definition of 'state or local authority funds' under the Open Records Act. " Existing legal authority validates Crestview Center's position.
KRS 61.872(1) provides that "[a]ll public records shall be open for inspection by any person." As defined in KRS 61.870(2), "public record" means "all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2) excludes "any records owned or maintained by or for a body referred to in subsection (1)(h) of this section that are not related to functions, activities, programs, or operations funded by state or local authority. " Resolution of this appeal turns on whether Crestview Center is a public agency within the meaning of KRS 61.870(1); if so, the records in dispute are "public record [s]" and must be produced unless exempt under KRS 61.878(1).
As amended in the 2012 legislative session, KRS 61.870(1) defines "public agency" to include:
(a) Every state or local government officer;
(b) Every state or local government department, division, bureau, board, commission, and authority;
(c) Every state or local legislative board, commission, committee, and officer;
(d) Every county and city governing body, council, school district board, special district board, and municipal corporation;
(e) Every state or local court or judicial agency;
(f) Every state or local government agency, including the policy-making board of an institution of education, created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act;
(g) Any body created by state or local authority in any branch of government;
(h) Any body which, within any fiscal year, derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds. However, any funds derived from a state or local authority in compensation for goods or services that are provided by a contract obtained through a public competitive procurement process shall not be included in the determination of whether a body is a public agency under this subsection ;
(i) Any entity where the majority of its governing body is appointed by a public agency as defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (j), or (k) of this subsection; by a member or employee of such a public agency; or by any combination thereof;
(j) Any board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency, except for a committee of a hospital medical staff, established, created, and controlled by a public agency as defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (k) of this subsection; and
(k) Any interagency body of two (2) or more public agencies here each public agency is defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (j) of this subsection.
(Emphasis added.) There is no basis in the record upon which to conclude that Crestview Center is a public agency within this definition. 2 Crestview Center is a subsidiary of Genesis HealthCare, a private corporation headquartered in Pennsylvania. 3 In a line of decisions premised on the definition codified at KRS 61.870(1)(h), this office has consistently recognized that a private corporation falls within the purview of the Open Records Act only when it derives at least 25% of the funds it expends in the Commonwealth from state or local authority funds. See 92-ORD-1114; 06-ORD-210; 08-ORD-084; 12-ORD-222.
Significantly, in 93-ORD-90 this office found that a radiology practice owned by a private physician was not a public agency for purposes of the Open Records Act simply because it was reimbursed for through Medicare and Medicaid for professional services rendered to its patients. In construing KRS 61.870(1)(h), this office held that it was intended to ensure that bodies which receive 25% or more of their funding from state or local authority funds "could be held publicly accountable for those funds. It was not intended to subject to public scrutiny the records of private physicians who receive state or federal funds as reimbursement for their services. Other mechanisms exist for holding these individuals accountable for the funds they receive." (Citation omitted)(emphasis added). 93-ORD-90, p. 9. If private physicians and hospitals were treated as "public agencies" under the Open Records Act because they receive government funds as direct payment for services rendered to patients, the Attorney General reasoned, "they would be discouraged from serving senior citizens and the poor, who benefit from the Medicare and Medicaid programs." Id., pp. 9-10. Accordingly, this office concluded that Medicare and Medicaid funds do not constitute "state or local authority funds" in determining whether a body receives 25% or more of its funds from public coffers. Id., p. 10. See 10-ORD-115 (rationale of 93-ORD-90 did not turn upon a distinction between state and federal funds but upon the fact that Medicare and Medicaid funds were received solely as direct reimbursement for professional services). See also 00-ORD-91; 06-ORD-210.
Although Crestview Center failed to specify what percentage of state funding is derived from such reimbursement, "it is of little consequence in view of the fact that this office has, since 1993, declined to factor such reimbursement into the private entity's percentage of public funding. " 09-ORD-061, p. 2. Because all public monies Crestview Center derives from Medicare and Medicaid represent claims payment or fees for services rendered, and it consequently does not satisfy the 25% funding threshold of KRS 61.870(1)(h), nor does it otherwise fall within the parameters of KRS 61.870(1), this office finds that Crestview Center is not a public agency for purposes of the Open Records Act nor are its records subject to the provisions of the Act.
Either party may appeal this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. In accordance with KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Distributed to:
Antoinette TaylorCathlin Sullivan
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