Austin Court of Appeals holds OIG investigation is open to the public since it did not concern health care fraud

Ken Paxton, Attorney General of the State of Texas v. Texas Department of State Health Services, 03-14-00594-CV (Tex. App— Austin, August 31, 2016)

This is a Public Information Act (“PIA”) case where the Austin Court of Appeals reversed the granting of a summary judgment for the Department of State Health Services (“DSHS”).

Iris, a Department employee, filed a complaint against Angel, another Department employee. The OIG investigated the complaint but found that the allegations of misconduct against Angel could not be substantiated. Both Iris and Angel filed open-records. DSHS sought to withhold information collected by the Office of the Inspector General (OIG) during the investigation under a Government Code provision that makes information and materials “compiled by the [OIG] in connection with an audit or investigation” confidential and not subject to disclosure under the PIA.  The AG noted this provision is found in the OIG’s enabling provisions regarding fraud and abuse and the underlying OIG investigation did not concern “Medicaid or other health and human services fraud, abuse, or overcharges.”  After opposing summary judgments, the trial court ruled for DSHS. The AG appealed.

The Department maintains that, on its face, the text of section 531.1021(g) places no limits on or requirements for the subject matter of an OIG audit or investigation to which confidentiality attaches. But such an interpretation fails when the provision is considered in the context of the OIG’s enabling provisions. When considered in its proper context, the Legislature intended for confidentiality to extend only to those OIG audits and investigations concerning “fraud, waste, and abuse in the provision and delivery of all health and human services in the state.” It does not apply to just any subject investigation. The Department also suggests that not protecting all OIG investigations would impair the OIG’s ability to obtain sensitive information and carry out its investigative responsibilities, and that persons and companies would feel insecure in reporting to the OIG.  However, information which does relate to fraud in health care services is still confidential. And the other difficulties described by the DSHS are no different than those experienced by all other governmental entities faced with public-information requests.  The Legislature has determined that, unless the information requested is excepted from disclosure, governmental entities must release any such records. As a final point, the Department points out that previous Attorney General letter rulings construed section 531.1021(g) to grant confidentiality to all OIG audits and investigations regardless of the subject matter.  Attorney General concedes that he has applied this section differently in the past but maintains that his position since 2012 has been that section 531.1021(g) does not apply unless it is a health service fraud or abuse situation. The court simply noted that its decision is based on the statutory language, not the AG’s prior decisions. The court reversed the summary judgment for DSHS and rendered judgment for the AG.

If you would like to read this opinion click here.  The panel includes Chief Justice Rose and Justice Goodwin. Chief Justice Rose delivered the opinion of the court. Attorney for the Appellant: Mr. Matthew R. Entsminger.  Attorney for the Appellee: Ms. Ann Hartley.