Date:
07/20/2023
Subject:
Robert Colwell/Iowa Department of Health and Human Services- Consolidation and Dismissal Order
Opinion:
The Iowa Public Information Board
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In re the Matter of: Robert Colwell, Complainant
Iowa Department of Health and Human |
Case Numbers: 23FC:0029 and 23FC:0050 Consolidation and Dismissal Order
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COMES NOW, Erika Eckley, Executive Director for the Iowa Public Information Board (IPIB), and enters this Dismissal Order:
Complaint 23FC:0029
On March 2, 2023, Robert Colwell filed formal complaint 23FC:0029, alleging that Iowa Department of Health and Human Services (DHHS) violated Iowa Code chapter 22 on December 27, 2022.
Facts
On November 11, 2022, Dr. Colwell submitted a records request to the DHHS for “documents, audits, or requirements on MCNA Dental or other PAHPs1 that require the PAHPs to have all surgical notes, anesthesia records, and moderate sedation records for dental procedures for payment of dental services” and “any information, letters, documents, addendums, etc. that allow MCNA Dental or other PAHPs to require more administrative burden than the existing Fee for Service Medicaid Program.” Colwell also asked DHHS a number of questions.
On December 27, 2022, DHHS responded to Dr. Colwell’s request. DHHS provided written responses addressing the questions of policy and applicable portions of DHHS administrative code for support. The response, in essence, was that DHHS did not have any records responsive to the stated requests.
On March 2, 2023, Dr. Colwell filed complaint 23FC:0029, alleging that DHHS had ignored his requests. DHHS responded to the complaint on March 10. In its response, DHHS provided IPIB copies of DHHS’s December 27, 2022, response to Colwell’s request and explained that many of Colwell’s requests were in fact policy questions, not records requests.
Law
Chapter 22 grants every person the right to examine or request a copy of a public record. Iowa Code § 22.2(1). Public records are “all records, documents, tape, or other information, stored or preserved in any medium” by a government body. Iowa Code § 22.1(3). If a records custodian does not possess the records requested, the custodian may respond by stating that it has no records responsive to the request. Nothing in Chapter 22 requires a lawful custodian to create records that it does not possess.
Further, Chapter 22 does not grant every person the right to serve interrogatories on a governmental body. Requests or demands that seek anything other than the production of public records are not Chapter 22 requests, and therefore cannot result in Chapter 22 violations.
Analysis
The facts show DHHS fulfilled its legal obligation under Chapter 22 when it responded to Colwell’s request. DHHS tried to respond to Dr. Colwell’s questions by directing him to the policies applicable to the questions. While the response could have more clearly stated that there were no specific records in response to the request, DHHS cannot be faulted for trying to direct Dr. Colwell to the agency’s policies applicable to his questions.
Conclusion
DHHS responded to Dr. Colwell’s records request. DHHS could have more clearly stated that it did not have any records in its possession in response to the request. But, DHHS is not required to create records it does not possess. DHHS’ response did not violate Iowa Code chapter 22.
Complaint 23FC:0050
On April 18, 2023, Robert Colwell filed formal complaint 23FC:0050, alleging that Iowa Department of Health and Human Services (DHHS) violated Iowa Code chapter 22 on March 28, 2023.
On March 28, 2023, Dr. Colwell submitted a records request to the DHHS for “all emails produced by MCNA aka MCNA Dental during actions as a PAHP for the State of Iowa regarding denials and purported payment of the claim attached to this email. This would include all reviews, correspondence between MCNA Dental and Rodney Dahlquist regarding the need to pay this claim. Please redact any HIPAA protected information, but provide a short narrative of what was
redacted.”
On April 17, 2023, DHHS responded to Dr. Colwell’s request and stated, “Regarding your March 28 request for records related to an MCNA claim and your April 11 follow up email, Iowa Code chapter 22 requires a government body to provide access to public records when the government body is the custodian of the record. Iowa HHS is not the custodian of the records you are requesting, and therefore, has no records responsive to your request.”
Dr. Colwell argues in his complaint that the request was for a specific dental claim for a specific patient. The emails are kept as part of the administration of the Dental Wellness Program or another name for the Iowa Medical Dental Program. The Department of Health and Human Services in Iowa is the administrator and MCNA Dental is the contractor who does the payment processing. MCNA as part of its work for Medicaid is require [sic] to keep all records regarding claims and
payment issues.”
In responding to the complaint, DHHS provided some additional information regarding Dr. Colwell’s request and the contractual relationship between DHHS and MCNA Dental. DHHS stated that it did a review of all of its email and did not find any records responsive to the request within its system and any records that exist would be in the custody of MCNA Dental, a private company. DHHS also clarified that Robert Dahlquist is an attorney who provides legal counsel to MCNA Dental, so communication between Mr. Dahlquist and MCNA Dental would be subject to attorney-client privilege.
Law
“Lawful custodian” means the government body currently in physical possession of the public record. The custodian of a public record in the physical possession of persons outside a government body is the government body owning that record.
In review of a similar issues, IPIB Advisory Opinion 20AO:0005 stated that “A subsidy, in and of itself, from a public body to a private entity does not subject the private entity’s records to public records laws. As such, Iowa Code chapter 22 makes no mention of subsidies and their effect on records.
In order for records to be subject to the open records laws found in Iowa Code chapter 22, they must meet the definition of public records. Public records are defined in Iowa Code § 22.1(3)(ab).”
Analysis
In his complaint, Dr. Colwell sought records related to payment or denials of claims for medical services related to an individual patient. DHHS responded to the request. DHHS did not provide any documents because it claimed it was not the custodian of the records. The records sought by Dr. Colwell were individual emails submitted between MCNA Dental and their attorney about the claims. There is no reason that DHHS would be the custodian of email records belonging to MCNA Dental, a private company.
Dr. Colwell, however, argues that because Medicaid oversees the managed care program, it should have control of individual email documents between the contracted entity, MCNA Dental, related to billing and denials of individual claims in the Medicaid program managed by the company.
Iowa Code § 294A.4 gives DHHS the ability to contract with a private entity to handle the processing of and payment of claims in managing the Medicaid program, including the dental program in which MCNA Dental participates. This relationship is laid out in Contract # MED-19-008, the contract between HHS and MCNA Dental, includes a number of provisions related to data and information collected by MCNA Dental in the course of its business as a managed care organization for the Medicaid program, including: Data Collection; Ownership and Disposition of Agency [HHS] Information; Financial Record Retention and Access; Public Records – Procurement and Contracts; and Federal Regulatory Terms – 42 CFR § 438.604.
The contract does not address ownership of internal MCNA Dental email records that discuss the resolution of individual claims. Nor does it address ownership of email communications between MCNA Dental and its external legal counsel that discuss resolution of individual claims.
It would be an expansive and illogical interpretation of Iowa Code Chapter 22 if all internal communications of a company that contracted with a government agency automatically became subject to Chapter 22 requirements public records due to the contractual relationship. Previous IPIB guidance agreed.
The Iowa Supreme Court has not taken such a broad reading of DHHS’s relationship with contracted managed care organizations. In Colwell v. Iowa Department of Human Services, 923 N.W.2d 225 (Iowa 2019), the court held that payment disputes in the managed care setting are essentially contract disputes between the medical provider and the contracted private company.
The Iowa Supreme Court has found that the agency (DHHS) may act as adjudicator of the payment claim if provided in the statutes and regulations for the program, but that the review and payment is first submitted and addressed by the contracted entity. Id. at 235. This analysis of the relationship between DHHS and the managed care entity shows a separation of the entities and their functions as described by DHHS in response to the records request.
Based on the separation of day-to-day billing and claims decisions appropriately delegated to MCNA Dental, the company retains ownership and custody of the email records.
Conclusion
DHHS has statutory authority to contract with MCNA Dental to handle all of the processing of and payment of claims under Medicaid. The Legislature expressly granted to DHHS the ability to utilize private entities for these purposes. It is not unreasonable that MCNA Dental would retain ownership of its email records for the day-to-day activities related to their contracted purpose.
Payment disputes in the managed care setting are essentially contract disputes between the medical provider and the contracted private company. See Colwell, 923 N.W.2d 225.
The Iowa Supreme Court has held that the review and payment of managed care claims is first submitted and addressed by the contracted entity. Id. at 235. This analysis of the relationship between DHHS and the managed care entity shows a separation of the entities and their functions as described by DHHS in response to the records request.
Based on these factors, DHHS properly notified Dr. Colwell that it was not the custodian of the records requested and no violation of Chapter 22 occurred.
Consolidation and Dismissal
Before filing complaint 23FC:0050, Dr. Colwell asked the Board to wait to address complaint 23FC:0023 and to consolidate his complaints for consideration together. The Board agreed to consolidate the complaints. Therefore, the complaints are consolidated.
Iowa Code § 23.8 requires that a complaint be within the IPIB’s jurisdiction, appear legally sufficient, and have merit before the IPIB accepts a complaint. This complaint does not meet those requirements.
IT IS SO ORDERED: Formal complaints 23FC:0029 and 23FC:0050 are dismissed as legally insufficient pursuant to Iowa Code section 23.8(2) and Iowa Administrative Rule 497-2.1(2)(b).
Pursuant to Iowa Administrative Rule 497-2.1(3), the IPIB may “delegate acceptance or dismissal of a complaint to the executive director, subject to review by the board.” The IPIB will review this Order on June 15, 2023. Pursuant to IPIB rule 497-2.1(4), the parties will be notified in writing of its decision.
By the IPIB Executive Director
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Erika Eckley, J.D.
1 Pre-paid ambulatory health plan (PAHP). Iowa Health and Human Services Department contracts with one or more PAHP to provide dental health care services to Iowa’s the Medicaid and Children’s Health Insurance Program (CHIP) participants.