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Case TitleCenter for Medicare Advocacy Inc v. Department of Health & Human Svcs
DistrictDistrict of Connecticut
CityNew Haven
Case Number3:2010cv00645
Date Filed2010-04-27
Date Closed2011-05-27
JudgeJudge Mark R. Kravitz
PlaintiffCenter for Medicare Advocacy Inc
DefendantHealth & Human Svc US Dept
Complaint attachment 1
Opinion/Order [47]
FOIA Project Annotation: A federal court in Connecticut has ruled that the records of private insurers who service and pay claims under Medicare Part C are not subject to FOIA even though claims made through private insurers under Part A and Part B are considered subject to FOIA under 1987 regulations promulgated by the Department of Health and Human Services. The Center for Medicare Advocacy requested information about the "improvement standard" for determining eligibility for Medicare coverage, which requires patients to show that treatments improve their medical conditions rather than simply maintaining them. The request was sent to the Center for Medicare and Medicaid Services, which provided some information but not as much as the Center for Medicare Advocacy had anticipated. In response to the Center's concerns, contractors covered under Part A and Part B also responded. The Center then sued, alleging the agency had failed to get records from those contractors covered under Part C. The agency argued that it did not have custody or control of the records and was not obligated under FOIA to retrieve them. The Center argued that, because the Part C carriers qualified as "state actors," they were "sufficiently entwined with HHS within the meaning and purpose of FOIA that the relevant documents must be searched and produced." The court disagreed, noting that "because agency records include only records that both were created or obtained by the agency and are under the agency's control, it is not immediately clear that FOIA itself would obligate HHS to search for records held by any health insurance carriers and intermediaries that contract with HHS, whether those entities were contractors under Medicare Part A, Medicare Part B, or Medicare Part C. The 1987 regulation that defines HHS to include Part A and Part B contractors for FOIA purposes represents HHS's interpretation and application of 5 U.S.C. ยง 552(f)(1), the FOIA definition of 'agency.' Nothing indicates that the regulation codifies a general principle that any private entity that contracts with an agency to administer the agency's programs is part of the agency for the purposes of FOIA." The court added that "of course, HHS is free to interpret the FOIA's definition of 'agency' to mean that Part C plans are included within HHS for FOIA purposes. But HHS has not done so." The court went on to observe that "whether or not the exclusion of Part C contractors is the best policy, there is no basis for the Center's claim that distinguishing Part C contractors from Part A and Part B contractors for FOIA purposes is 'irrational.'" The Center also argued that since the Part C contractors were "state actors," they should be covered by FOIA. But the court pointed out that the Center admitted that it "knew of no other effort to use state action analysis in the FOIA context, and could cite no case standing for the proposition that FOIA requires an agency to gather records from any contractor that would be deemed a 'state actor' for constitutional purposes. The Court rejects the Center's attempt to graft the Fourteenth Amendment's 'state action' requirement onto the standard for determining whether a document is an 'agency record' under FOIA."
Issues: Agency Record
User-contributed Documents
Docket Events (Hide)
Date FiledDoc #Docket Text

2010-04-271COMPLAINT against Health & Human Svc filed by Center for Medicare Advocacy Inc. (Attachments: # 1 Exhibits)(Grady, B.) (Entered: 04/28/2010)
2010-04-272Order on Pretrial Deadlines: Motions to Dismiss due on 07/27/2010. Amended Pleadings due by 6/26/2010; Discovery due by 10/27/2010; Dispositive Motions due by 11/26/2010. Signed by Clerk on 04/27/2010. (Grady, B.) (Entered: 04/28/2010)
2010-04-273ELECTRONIC FILING ORDER - PLEASE ENSURE COMPLIANCE WITH COURTESY COPY REQUIREMENTS IN THIS ORDER: Signed by Judge Mark R. Kravitz on 04/27/2010. (Grady, B.) (Entered: 04/28/2010)
2010-04-27Filing fee: $350.00, receipt number H030754 (Grady, B.) (Entered: 04/28/2010)
2010-04-28Summons Issued as to Health & Human Svc, U.S. Attorney and U.S. Attorney General (Grady, B.) (Entered: 04/28/2010)
2010-05-054MOTION to admit Attorney Wey-Wey Kwok pro hac vice. Filing Fee $25.00, Receipt Number H030817 by Center for Medicare Advocacy Inc. (Grady, B.) (Grady, B.). (Entered: 05/05/2010)
2010-05-057SUMMONS Returned Executed by Center for Medicare Advocacy Inc. Health & Human Svc served on 5/3/2010, answer due 7/2/2010. (Grady, B.) (Entered: 05/07/2010)
2010-05-05Answer deadline updated for Health & Human Svc to 6/3/2010. (Grady, B.) (Entered: 05/07/2010)
2010-05-075Docket Entry Correction: Document 4 MOTION to admit Attorney Wey-Wey Kwok pro hac vice has been modified to correct the pdf. (Grady, B.) (Entered: 05/07/2010)
2010-05-076ORDER granting 4 MOTION to admit Attorney Wey-Wey Kwok pro hac vice. Signed by Clerk on 05/07/2010. (Grady, B.) (Entered: 05/07/2010)
2010-05-118NOTICE of Appearance by Gill W. Deford on behalf of Center for Medicare Advocacy Inc Appearance of Wey-Wey Kwok (Deford, Gill) (Entered: 05/11/2010)
2010-05-129NOTICE of Appearance by Wey-Wey Kwok on behalf of Center for Medicare Advocacy Inc (Kwok, Wey-Wey) (Entered: 05/12/2010)
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by FOIA Project Staff
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