December 10, 2012
Posted by Matt Ehling
On December 7, 2012, Public Record Media field suit against the U.S. Department of Health and Human Services (HHS) for refusing to adequately respond to a FOIA request filed in February of 2012. See coverage and summaries here and here.
PRM’s request sought correspondence between Minnesota State Senator John Marty and CMS, the component of HHS responsible for disbursing Medicaid payments to state governments, as well as internal CMS deliberations regarding the status of Minnesota’s 1115 Medicaid waiver.
In May of 2011, Senator Marty wrote to CMS and asked the agency to deny the State of Minnesota’s Medicaid waiver, due to concerns that the state would waste federal funds through program mismanagement. Senator Marty has been critical of Minnesota’s “managed care” system of disbursing public health care dollars, and has urged that the system be abandoned in favor of a “fee-for-service” model, wherein the state would reimburse medical providers directly. In contrast, the managed care system uses non-profit HMOs to serve as intermediaries between providers and the state.
In early 2012, PRM obtained some of Senator Marty’s correspondence with CMS, and filed a FOIA request to discover whether that correspondence impacted CMS determinations regarding Minnesota’s waiver status.
CMS quickly responded to our initial letter, but noted that the agency could not produce a final determination regarding our FOIA request due to “unusual and exceptional” circumstances, including agency workload.
We waited for twenty working days (per the FOIA) for a response. Then, we waited the additional ten days that the FOIA allows to agencies that face “unusual circumstances” in their processing of FOIA requests. Once the additional ten days elapsed, we submitted an administrative appeal.
Despite sending a letter to acknowledge receipt of our administrative appeal, CMS took no further action in the course of almost six months. On November 8, 2012, attorney J.T. Haines sent a letter to CMS on our behalf to check on the status of our request, and to ask that the agency provide either documents or a final response by November 23, 2012. By that date, no documents or correspondence had arrived.
PRM filed suit on December 7, 2012. Our lawsuit asks the court to order CMS to produce all responsive documents, to issue an injunction prohibiting CMS from withholding records, as well as to award costs and attorney’s fees.