Are quality-assurance reports about Delaware prison healthcare contractor Connections CSP available under FOIA, or are they confidential peer-review records?

Official title

19-IB23 4/26/2019 FOIA Opinion Letter to Ms. Christina Jedra re: FOIA Complaint Concerning the Delaware Department of Correction

Plain-English summary

News Journal reporter Christina Jedra asked DOC for two categories of records under each of two Connections Community Support Programs contracts (health services and mental health/substance abuse services): all DOC quality-assurance audits and all corrective action plans submitted by Connections. DOC denied the quality-assurance audit portion of the request because it did not create its own audits of Connections, and the reports it did receive (the Connections Health Services Reports reviewed at the Healthcare Advisory Committee meetings) were peer-review records exempt under 24 Del. C. § 1768. DOC produced three corrective-action-plan documents in response to the other portion.

The AG affirmed. Two findings:

1. Health Services Reports are peer-review records under 24 Del. C. § 1768. That statute designates as confidential the records used by peer-review committees and organizations "whose function is the review of medical records, medical care, and physicians' work, with a view to the quality care and utilization of hospital or nursing home facilities, home visits, and office visits." The AG accepted DOC's representation that the Health Services Reports the Healthcare Advisory Committee generates serve that function. Because § 10002(l)(6) excludes statutorily exempt records from "public record," the reports were not subject to FOIA.
2. DOC does not create its own audits. DOC's Chief of the Bureau of Correctional Health Services attested by affidavit that DOC does not generate independent audits of Connections, so there were no responsive quality-assurance audits to produce.

Jedra had argued that audits assessing Connections' contractual compliance are separate from peer review of individual clinicians. The AG accepted DOC's sworn representation that DOC does not create such audits and that the Health Services Reports it receives function as peer-review materials.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is 24 Del. C. § 1768 actually protecting?

It designates as confidential the records used by peer-review committees and organizations whose function is the review of medical records, medical care, and physicians' work, with a view to the quality of care and utilization of hospital or nursing home facilities, home visits, and office visits.

Why did the AG accept that the prison-healthcare reports fit this label?

DOC explained that its representatives meet with Connections staff at each facility as a peer-review team called the Healthcare Advisory Committee, which produces Health Services Reports reviewing medical and behavioral health treatment and may elevate quality concerns to the statewide continuous-quality-improvement group. The contract's Request for Proposal identified the quality-assurance reports as documents "protected from disclosure pursuant to state and federal peer review and quality assurance privileges." On that record the AG accepted DOC's representation that the reports are peer-review materials.

What about the contract-compliance audits Jedra specifically requested?

Jedra argued she sought audits assessing whether Connections meets its contractual obligations, not reviews of how a clinician treated a particular patient. The AG accepted DOC's sworn affidavit that DOC does not create its own audits of Connections, so no such records existed to produce.

Were the corrective action plans released?

In part. In response to the corrective-action-plan portion of the request, DOC produced three documents: an Intake Study, Continuous Quality Improvement Studies (M&M's with Non-Clinical TCU Findings), and a JTVCC Sick Call Study. The opinion does not address whether anything else exists in that category.

Background and statutory framework

The confidentiality structure the AG relied on:

• 24 Del. C. § 1768: designates as confidential the records used by peer-review committees and organizations whose function is the review of medical care and physicians' work.
• 29 Del. C. § 10002(l)(6): FOIA's carve-out providing that records exempted from public disclosure by statute or common law are not "public records," which brings § 1768 into FOIA.

The opinion also notes the Adult Healthcare Review Committee's enabling statute, which provides that any document received or generated by that Committee is excluded from the definition of public record. The AG accepted DOC's representation, supported by the affidavit of the Chief of the Bureau of Correctional Health Services, that the Health Services Reports function as peer-review materials and that DOC does not create its own audits of Connections.

Citations

• 29 Del. C. § 10002(l)(6) (statutory-exemption carve-out)
• 29 Del. C. § 10005 (Petition procedure)
• 29 Del. C. §§ 10001-10007 (Delaware FOIA generally)
• 24 Del. C. § 1768 (medical peer review confidentiality)

Source

• Landing page: https://attorneygeneral.delaware.gov/2019/04/30/19-ib23-4-26-2019-foia-opinion-letter-to-ms-christina-jedra-re-foia-complaint-concerning-the-delaware-department-of-correction/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2019/04/Attorney-General-Opinion-No.-19-IB23.pdf

Original opinion text

PRINT VERSION: Attorney General Opinion No. 19-IB23

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 19-IB23

April 26, 2019

VIA EMAIL

Christina Jedra

[email protected]

RE: FOIA Petition Regarding the Delaware Department of Correction

Dear Ms. Jedra:

We write regarding your correspondence alleging that the Delaware Department of Correction ("DOC") violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA") with respect to your records request. We treat your correspondence as a Petition for a determination pursuant to 29 Del. C. § 10005 regarding whether a violation of FOIA has occurred or is about to occur. Because the requested audits are designated by statute as confidential records and DOC is not creating its own audits of Connections, we find that DOC appropriately denied your request for quality assurance audits.

BACKGROUND

On February 25, 2019, you submitted a records request to DOC for the following documents:

All quality assurance audits conducted by DOC on Connections Community Support Programs (CSP) for Contract No. DOC1426-Health (i.e. the health services contract) from the beginning of the contract period (2014) to present.

All corrective action plans submitted to DOC by Connections relating to Contract No. DOC 1426-Health (i.e. the health services contract).

All quality assurance audits conducted by DOC on Connections Community Support Programs (CSP) for Contract No. DOC1202Mental (i.e., the mental health services, substance abuse treatment, sex offender treatment, and DUI programming services contract) from the beginning of the contract period (2012) to the present.

All corrective plans submitted to DOC by Connections relating to Contract No. DOC1202Mental (i.e., the mental health services, substance abuse treatment, sex offender treatment, and DUI programming services contract).

DOC denied the requests for quality assurance audits conducted by DOC, indicating that no such records exist. DOC stated that peer review reports exist, but peer review reports are exempt from the definition of "public record" pursuant to 24 Del. C. § 1768 which specifically excludes the records and proceedings of "members of other peer review committees or organizations whose function is the review of medical records, medical care, and physician's work, with a view to the quality of care and utilization of hospital or nursing home facilities, home visits, and office visits." In response to your request for corrective action plans, DOC provided three records described as "Standards for Mental Health Services in Correctional Healthcare Services – Intake Study, Continuous Quality Improvement Studies – M&M's with Non-Clinical TCU Findings and JTVCC Sick Call Study."

You filed a Petition with this Office challenging the denial of your request for quality assurance audits, asserting that audits must exist that were created by the DOC and are not peer review and thus, are not prohibited from disclosure by statute. You argue that other government entities release audits to the public, such as the City of Wilmington and the State Auditor of Accounts. Additionally, you assert your belief that the peer review process is separate from the quality assurance metrics, and you are not requesting "records that review how well a clinician did their job on a particular patient." Instead, you requested "the audits which assess the extent to which Connections is meeting its contractual obligations" which you assert are "not written with 'a view to the quality of care.'"

On April 11, 2019, DOC submitted a letter ("Response") explaining that your request for "quality assurance audits conducted by DOC" was denied because the DOC does not create its own audits of Connections and it therefore cannot produce documents that do not exist. With regard to the section of the contract you cite in your FOIA request, the DOC explains that the requirement of developing "Quality Assurance Metrics" for a Continuous Quality Improvement System ("CQIS") is indeed part of the contract between DOC and Connections. The other relevant part of the contract outlines that these "[r]eports of CQIS activity must be provided to the DDOC Chief, Bureau of Correctional Healthcare Services . . . on a monthly basis." The DOC then explains the manner and method by which Connections gathers and ultimately reports to the DOC this information, explaining DOC receives reports from Connections after DOC representatives meet with Connections staff at each facility, creating a peer review team named the "Healthcare Advisory Committee." Connections produces Health Services Reports created during these committee meetings encapsulating the review of medical and behavioral health treatment the Committee undertook. DOC explains that the Healthcare Advisory Committee may elevate a quality control metric to the statewide continuous quality improvement group, and DOC shares these reports regarding the quality of offender health care with the Adult Healthcare Review Committee.

DOC explains its denial of your request, to the extent you sought these reports, under 29 Del. C. § 10002(l)(6), which exempts from the definition of "public record" any records that are "specifically exempted from public disclosure by statute or common law." In accordance with 24 Del. C. § 1768, DOC argues that it is prohibited from disclosing the Health Services Reports created by the Healthcare Advisory Committee because these reports function as a "review of medical records, medical care, and physicians' work, with a view to the quality care and utilization of hospital or nursing home facilities, home visits, and office visits." DOC points to specific language in the Request for Proposal for the Connections' contracts in which the quality assurance reports produced to DOC are specifically identified as documents "protected from disclosure pursuant to state and federal peer review and quality assurance privileges." Finally, DOC provides the affidavit of the Chief of the Bureau of Correctional Health Services detailing the reports that Connections currently provides and affirming that DOC is not creating its own audits of Connections. For these reasons, DOC asserts that that it properly denied the request for quality assurance audits.

DISCUSSION

FOIA exempts certain records from the definition of "public records." Under 29 Del. C. § 10002(l)(6), records exempted from public disclosure by statute or common law are not "public records." Title 24, Chapter 17 designates as confidential those records used by peer review committees and organizations "whose function is the review of medical records, medical care, and physicians' work, with a view to the quality care and utilization of hospital or nursing home facilities, home visits, and office visits." DOC attests that it regularly receives Health Services Reports from Connections "covering both medical and behavioral health treatment that is used for each" meeting of the Healthcare Advisory Committee. DOC shares the information contained in these Health Services Reports with the Adult Healthcare Review Committee, a committee whose enabling statute provides that "[a]ny document received or generated by the Committee is hereby specifically excluded from the definition of public record . . . ." Thus, DOC asserts that Delaware law is replete with the recognition that reports such as those generated by the Healthcare Advisory Committee are peer review materials and not public records pursuant to 24 Del. C. § 1768. DOC attests that it is not creating its own audits of Connections.

On the basis of this record, we accept DOC's assertion that the Health Services Reports it receives from Connections are peer review documents and therefore exempt from the definition of public records pursuant to 24 Del. C. § 1768 as well as DOC's sworn representation that it is not conducting its own audits of Connections. Accordingly, we determine that DOC appropriately partially denied your request for records pursuant to 29 Del. C. § 10002(l)(6).

CONCLUSION

For the reasons set forth above, we conclude that DOC has not violated FOIA as alleged.

Very truly yours,

/s/ Allison E. Reardon

Allison E. Reardon

State Solicitor

cc:

Gregory E. Smith, Deputy Attorney General

Dorey L. Cole, Deputy Attorney General