Is North Dakota's physician impairment program (NDPHP) subject to open records and meetings laws even though it's run by a nonprofit contractor?

Plain-English summary

The Executive Director of the North Dakota Board of Medicine asked whether the North Dakota Professional Health Program (NDPHP), a nonprofit contractor that runs the state's physician impairment monitoring program under a contract with the Board, is subject to open records and meetings laws. The AG concluded it is.

The NDPHP runs the state's "physician health program," a statutory mechanism (N.D.C.C. ch. 43-17.3) for detection, intervention, and monitoring of doctors and other licensees with conditions that could impair their ability to practice safely. The 2013 Legislature moved the program from inside the Board to a standalone entity to address staffing and accessibility concerns, but the underlying governmental function remained Board-controlled.

N.D.C.C. § 44-04-17.1(13) defines "public entity" broadly. The AG identified four ways a private nonprofit can be (fully or partially) subject to open records law: (1) created or recognized by state law; (2) delegated authority by a public entity; (3) acting as agent of a public entity performing governmental function or holding public-entity records; (4) supported in whole or part by public funds. The NDPHP satisfies all four. The Board paid the NDPHP $26,000 per month in 2021 and provided 95% of total NDPHP funding. The Board only served 43 Board licensees at the time. The legislation specifically structures the contract terms, the program procedures, and the confidentiality of records. The statutory framework treats NDPHP as a Board's agent.

What this means for you

If you run or work for a nonprofit that contracts with a North Dakota state agency

The opinion identifies four ways a private nonprofit may qualify as a "public entity" under § 44-04-17.1(13): created or recognized by state law; delegated authority by a public entity; acting as agent of a public entity performing a governmental function or holding public-entity records; or supported in whole or part by public funds. The opinion concludes that satisfying any one is sufficient and that NDPHP satisfies all four.

If you are a physician participating in the NDPHP

The opinion does not alter the patient/licensee confidentiality provisions in N.D.C.C. § 43-17.3-07. The opinion concludes only that the NDPHP as an organization is a public entity, not that the specific case records lose their statutory confidentiality.

If you are a journalist or citizen seeking NDPHP records

The opinion concludes the NDPHP is subject to N.D.C.C. § 44-04-18 (open records) and § 44-04-19 (open meetings). The opinion does not enumerate specific record categories. Under N.D.C.C. § 54-12-01, the opinion governs the actions of public officials until the question is decided by the courts.

Common questions

Q: What's "agent" in the open records context?
A: An entity to which a public body has delegated a public function. N.D.A.G. 2014-O-24 held that records held by an agent on the public entity's behalf are public records under § 44-04-18. The open records law cannot be circumvented by outsourcing.

Q: How much public funding triggers the "supported by public funds" test?
A: Funds exceeding the fair market value of goods or services given in exchange. If the contract reasonably identifies services with fair-market value matching the payment, the entity is not "supported" by public funds (the public-funds test fails, though other tests may still apply). The NDPHP's structure made this test pass: the Board provided 95% of its funding and the entity served only the Board's licensees.

Q: Does this opinion apply to other professional health programs in ND?
A: It is fact-specific to NDPHP. Similar analyses would apply if a different professional health program is created by statute, contracted to the Board (or another public entity), and dependent on public funding for its operations. The four-pronged test is the framework.

Q: Are the records of impaired physicians now public?
A: No. Specific patient/licensee records remain confidential under N.D.C.C. § 43-17.3-07. The opinion confirms that NDPHP as an organization is subject to open records and meetings law; it does not strip the confidentiality protections that apply to individual case records.

Citations and references

Statutes:

• N.D.C.C. § 44-04-17.1
• N.D.C.C. ch. 43-17.3

Prior AG opinions:

• N.D.A.G. 2015-O-05, public-funds support analysis
• N.D.A.G. 2014-O-24, agent of public entity holding records
• N.D.A.G. 2013-O-16, definition of public entity

Request and conclusion (from landing page)

October 11, 2022

Issued to: North Dakota Board of Medicine

Request: Is the North Dakota Professional Health Program (“NDPHP”) a public entity pursuant to state law and subject to the open records and meetings laws?

Conclusion: The physician health program is a statutorily created program for the detection, intervention, and monitoring of physicians, physician assistants, and other N.D. Board of Medicine licensees with conditions that could result in impairment. The N.D. Board of Medicine contracts with the NDPHP to provide the physician health program services. The NDPHP was created by state law; is supported in whole or significant part by public funds; and is performing governmental functions delegated by the Legislature and the North Dakota Board of Medicine. Therefore, the NDPHP is a public entity as defined by N.D.C.C. § 44-04-17.1(13) and is subject to open records and open meetings laws.

You can view the opinion here: 2022-L-04

Source

• Landing page: https://attorneygeneral.nd.gov/north-dakota-professional-health-program-is-a-public-entity-subject-to-open-records-and-meetings-laws/
• Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2022/12/2022-L-04.pdf

Original opinion text

STATE OF NORTH DAKOTA

OFFICE OF ATTORNEY GENERAL

www.attorneygeneral.nd.gov
(701) 328-2210

Drew H. Wrigley
ATTORNEY GENERAL

LETTER OPINION
2022-L-04

Ms. Sandra DePountis, Executive Director
North Dakota Board of Medicine

4204 Boulder Ridge Road Ste 260
Bismarck, ND 58503

Dear Ms. DePountis:

Thank you for your letter requesting an opinion on whether the North Dakota Professional Health
Program (“NDPHP”) is a public entity pursuant to North Dakota Century Code (N.D.C.C.) § 44-04-
17.1(13), and is therefore subject to open records and meetings laws. It is my opinion the NDPHP
is a public entity subject to open records and meetings laws.

BACKGROUND FACTS

The physician health program was established as part of the North Dakota Board of Medicine
(“Board”) to facilitate and monitor the treatment of physicians for chemical addictions or abuse,
mental illnesses, and behavioral disorders. The program aims to protect the public from the unsafe
practice of medicine. In 2013, the Legislative Assembly adopted legislation which moved the
physician health program from within the Board to a stand-alone entity.! That legislation was
codified as N.D.C.C. ch. 43-17.3, which defines the physician health program as “a board-
sanctioned program for the detection, intervention, and monitoring of licensees with conditions that
could result in impairment.”? “Impairment” is defined as “the presence of any physical, mental, or
behavioral disorder or pattern of alcohol or substance abuse which interferes with a [physician or
other health professional under the jurisdiction of the Board of Medicine]’s ability to engage safely
in professional activities.”? The reasons underpinned the shift of the program from within the Board
of Medicine to a separate entity, including staffing concerns, restraints for the Board, and a push to
make the program more accessible for physicians.4

Pursuant to the Board’s authority under N.D.C.C. § 43-17.3-02, the Board contracts with the
NDPHP to provide the services set forth in N.D.C.C. ch. 43-17.3. The most recent contract with the
NDPHP was executed in 2021 and lists specific services to be provided by NDPHP in exchange for
a monthly payment. The contract states the NDPHP may use the funds from the Board only to fulfill

''S.B. 2135, 2013 N. D. Leg.

2N.D.C.C. § 43-17.3-01(5).

3N.D.C.C. § 43-17.3-01(3).

‘ Hearing on S.B. 2135 Before the S. Gov’t and Veterans Comm., 2013 N.D. Leg. (Jan. 25)
(Written Testimony of Duane Houdek).

LETTER OPINION 2022-L-04
October 11, 2022
Page 2

the services required by the agreement, not for the benefit of any other individuals for whom
NDPHP may be providing services. The Board provided 95% of the NDPHP’s total funding in
2021.8

ANALYSIS

Records and meetings of public entities are open to the public unless otherwise specifically
provided by law.” “The definition of ‘public entity’ is not limited to entities that are traditionally
viewed as ‘governmental.’’8 As summarized in previous opinions, there are a variety of ways a
private, nonprofit, “nongovernmental” organization may be fully or partially subject to open records
law including the following: 9

1. The organization is created or recognized by state law, or by an action of a political
   subdivision;!®

2. The organization is delegated authority by a governing body of a public entity;"!

3. The organization is an agent or agency of a public entity performing a governmental

function on behalf of a public entity or having possession or custody of records of
the public entity;'? or

4, The organization is supported in whole or in part by public funds or is expending
public funds.!?

The Legislative Assembly gave the Board authority to contract with the NDPHP function that was
previously performed only by the Board, a governmental entity. Chapter 43-17.3, North Dakota
Century Code, specifically dictates the terms of the contract between the Board and the NDPHP;!4
the procedures that must be developed by the NDPHP to carry out its contractual obligations;'®
which records held by the NDPHP are confidential;!6 and the circumstances under which the
records held by the NDPHP may be disclosed.!7 The presumption the NDPHP is a public entity

Contract between N.D. Bd. of Med. and NDPHP, Section 2(b)(4) (2021).

° NDPHP 2020 Form 990.

TN.D.C.C. § 44-04-18(1); N.D.C.C. § 44-04-19.

8 N_D.A.G. 2015-0-05, citing N.D.A.G. 2013-O-16; N.D.A.G. 2006-0-05; N.D.A.G. 2001-O-10.
9 N.D.A.G. 2015-O0-05; N.D.A.G. 2013-O-16; N.D.A.G. 2001-O-10; see also N.D.A.G. 2014-O0-04;
N.D.A.G. 2006-O-05; N.D.A.G. 2006-O0-04.

lON_D.C.C. § 44-04-17.1(13)(a), (b).

MND.C.C. § 44-04-17.1(6).

2 N.D.C.C. § 44-04-17.1(13), (16).

3 ND.C.C. § 44-04-17.1(10), (13)(c).

MNLD.C.C. § 43-17.3-03.

15 Id

'6N_D.C.C. § 43-17.3-07.

"7 Td.

LETTER OPINION 2022-L-04
October 11, 2022
Page 3

subject to open records requests is inherent in the Legislative Assembly’s decision to designate
records of the NDPHP as confidential and codify the circumstances under which the NDPHP’s
records may be disclosed.

The NDPHP satisfies each of the four, different scenarios above, and satisfying any one of them
renders an organization a public entity for open records and meetings laws. First, the physician
health program was created by state statute and is recognized by state statute.18 Second, in
accordance with state law, the Board, which is a governing body of a public entity, delegated
authority to the NDPHP to perform governmental functions on behalf of the Board. Third, pursuant
to the contract executed by the Board and NDPHP, the NDPHP is acting as an agent of the Board in
its performance of the physician health program, which is a governmental function of the Board. As
previously stated by my office:

The application of the open records law is not limited to a public entity itself; it also
applies to recorded information regarding public business which is in the possession
of an “agent” of the public entity. The North Dakota Supreme Court has held that the
open records law cannot be circumvented by delegating a public duty to a third
party. Where a government entity delegates a public duty to a third party, documents
in possession of the third party connected with public business are public records
within the meaning of N.D.C.C. § 44-04-18. “[The] purpose of the open-record law
would be thwarted if we were to hold that documents so closely connected with
public business but in the possession of an agent or independent contractor of the
public entity are not public records.” !9

The Legislative Assembly mandated the Board “[e]stablish a mechanism for dealing with a licensee
who abuses or is dependent upon or addicted to alcohol or other addictive chemical substances,
[and] to enter an agreement, at its discretion, with a professional organization whose relevant
procedures and techniques it has evaluated and approved for the organization’s cooperation or
participation.”2° The ultimate responsibility for managing a licensee who abuses or is dependent
upon or addicted to alcohol or other chemical substances therefore lies with the Board.?2! The Board
satisfies the statutory mandate by contracting with the NDPHP to execute this inherently
governmental function for the Board. The Board’s previous direct management of licensees
struggling with chemical dependency issues underscores the conclusion that performing that duty is
a government function.22 The Board’s delegation of that function to the NDPHP renders the
NDPHP an agent of the Board subject to the requirements of the open records and meetings laws.

18 N.D.C.C. ch. 43-17.3.

'I N.D.A.G. 2014-O-24 (citations omitted).

20 N.D.C.C. § 43-17-07.1(6).

*l See id.

2 Hearing on S.B. 2135 Before the S. Gov’t and Veterans Comm., 2013 N.D. Leg. (Jan. 25)
(Written testimony of Duane Houdek).

LETTER OPINION 2022-L-04
October 11, 2022
Page 4

Fourth, the NDPHP is a public entity because it is supported in whole, or in significant part, by the
Board of Medicine’s public funds.

An organization is supported in whole or in part by public funds when it “receive[s]
public funds exceeding the fair market value of any goods or services given in
exchange for the public funds, whether through grants, membership dues, fees, or
any other payment.” However, as long as the goods and services provided in
exchange for those funds are reasonably identified in an agreement or contract and
have a fair market value that is equivalent to the amount of public funds it receives,
the organization is not considered to be “supported” by public funds and is not
considered to be subject to open records and meetings law.?8

The NDPHP has a contract with the Board of Medicine which specifies specific services to be
provided, pursuant to state law.24 The Board pays the NDPHP $26,000 per month to perform the
specified services.25 The NDPHP, as of January 28, 2022, only serviced forty-three Board of
Medicine licensees, no one else.26 Per the NDPHP’s financial disclosures, in addition to the Board’s
monthly payment, the NDPHP only receives minimal additional grant funding, and a negligible
amount from participants for the services rendered.2’ It is clear the NDPHP exists in significant part
because of the public funds it receives from the Board.

CONCLUSION

The NDPHP was created by state law; is supported in whole or significant part by public
funds; and is performing governmental functions delegated by the Legislature and the North
Dakota Board of Medicine. Therefore, it is my opinion the NDPHP is a public entity as

defined by N.D.C.C. § 44-04-17.1(13) and is subject to open records and open meetings
laws.

Attorney General

This opinion is issued pursuant to N.D.C.C. § 54-12-01. It governs the actions of public officials
until such time as the question presented is decided by the courts.”8

3 N.D.A.G. 2015-O-05 (citations omitted).

4 ND.C.C. § 43-17.3-03.

5 Contract between N.D. Bd. of Med. and NDPHP, Section 2(a) (May 27, 2021).
6 Minutes, N.D. Bd. of Med. (Jan. 28, 2022).

27 NDPHP 2020 Form 990

28 See State ex rel. Johnson v. Baker, 21 N.W.2d 355 (N.D. 1946).