In the Matter of Subpoena Duces Tecum to Jane Doe, Esq., Dated April 25, 2001 and Four Other Subpoenas Duces Tecum. The Park Associates, Inc. et al.,
New York State Attorney General, Medicaid Fraud Control Unit,
2003 NY Int. 29
In this appeal, we are asked to determine if certain nursing home records are immune from disclosure in response to subpoenas issued by a grand jury conducting a Medicaid fraud investigation. We conclude that Federal law protects from disclosure those records created or generated for quality assurance purposes at the facilities.
As part of an investigation into resident care
initiated by the Medicaid Fraud Control Unit of the Attorney
Five categories of documents were in dispute before Supreme Court: incident/accident reports, monthly skin condition and pressure sore reports, monthly weight reports, infection control reports and lists of any facility-acquired infections. Petitioner asserted that the records and reports at issue were generated by the facilities' quality assurance committees and therefore the nursing homes were entitled to rely on the privilege extended to quality assurance committee work product under State and Federal law.
MFCU contended that the contested records were not
subject to any quality assurance privilege because they related
to a Medicaid investigation and, furthermore, the nursing homes
were required under State regulation to maintain such records.
MFCU also asserted that the documents were not generated by
Supreme Court denied the motion, finding that the subpoenas related to records maintained in accordance with particular State regulations rather than exclusively for quality assurance purposes. The Appellate Division affirmed and ordered disclosure of the documents. The court rejected petitioner's Public Health Law privilege claim as inapplicable to nursing home facilities. With respect to petitioner's assertion of privilege under Federal law, the Appellate Division concluded that the disputed records did not fall within the scope of the privilege extended to quality assurance committees. This Court granted petitioner leave to appeal.
The Federal privilege upon which petitioner relies
encompassed in the Federal Nursing Home Reform Act (FNHRA),
enacted as part of the Omnibus Budget Reconciliation Act of 1987
(Pub. L. No. 100-203, §§ 4201-4218). The FNHRA was enacted to
address the Federal government's concerns regarding the
distribution of public monies to those nursing facilities
participating in the Medicaid program with poor quality of care
standards and to improve the quality of care for Medicaid-
eligible nursing home residents, and either to bring substandard
facilities into compliance with Medicaid quality of care
requirements or to exclude them from the program (H.R. Rep. No.
Under the Act, states must conduct and certify the
results of unannounced annual standard surveys. The surveys are
designed to detect facilities where residents are not receiving
quality care and permit limited enforcement resources to be
targeted on substandard quality facilities (H.R. Rep. No. 100-391
[I], 100th Cong, 1st Sess, at 468, reprinted in 1987 US Code Cong
& Admin News, at 2313-288). In evaluating the quality of care
provided, the survey process examines indicators such as medical
and rehabilitative care and infection control, written plans of
care and audits of residents' assessments ( see 42 USC § 1396r
[g][A]; 42 USC § 1396r [g][A][i], [ii]). Furthermore, the
FNHRA mandates that each state give its Medicaid fraud control
unit access to all information of the State agency responsible
for such surveys ( see 42 USC § 1396r [g][D]). In New York,
the office of welfare inspector general, working within the
office of the deputy attorney general for medicaid fraud control,
possesses broad authority to uncover fraud and abuse in nursing
homes, including the power to investigate and prosecute illegal
acts perpetrated by recipients of public assistance services ( see
The FNHRA also mandates that every nursing and skilled nursing facility which accepts Medicaid or Medicare funding must care for its residents in such a manner and in such an environment as will promote maintenance or enhancement of the quality of life of each resident (42 USC § 1396r [b][A] [nursing facility]; 42 USC § 1395i-3 [b][A] [skilled nursing facility]). To advance this objective, a nursing home is required to maintain a quality assessment and assurance committee to identify and develop plans to correct deficiencies in the quality of care provided to residents ( see 42 USC § 1396r [b][B]; 42 USC § 1395i-3 [b][B]). Quality assurance committees help ensure both quality of care and quality of life in nursing homes (Report of Off. of Inspector Gen., Dept. of Health and Human Servs., Quality Assurance in Nursing Homes, January 2003, at i).
In 1990, to further strengthen quality assurance
procedures, Congress amended the quality assurance requirements
to provide that [a] State or the Secretary may not require
disclosure of the records of such committee except insofar as
such disclosure is related to the compliance of such committee
with the requirements of this subparagraph (42 USC § 1396r
[b][B][ii]; 42 USC § 1395i-3 [b][B][ii]). Thus, quality
Although neither this Court nor any Federal court has
previously interpreted this Federal statutory exemption, we have
generally examined the protection afforded to quality assurance
committee records in the context of CPLR article 31 discovery
provisions. While these cases do not involve the public interest
underlying the audit and investigatory authority of MFCU, the
purpose of hospital-based quality assurance committees is similar
to that of quality assurance committees functioning in nursing
homes -- to ensure the proper delivery of services and the
maintenance and improvement in quality of care. We noted that
the State Education Law privilege which attaches to the
proceedings and work product of hospital quality assurance
committees promote[s] the quality of care through self-review
without fear of legal reprisal ( Katherine F. v State of New
York, , 94 NY2d 200, 205  [discussing Education Law §
6527(3)]). Furthermore, such protections 'enhance the
Here, the parties agree that the clinical records of residents in these facilities are not privileged under the Federal statute and, thus, such records do not acquire quality assurance protection merely because they are reviewed or used by a quality assurance committee. Similarly, the parties do not dispute that the work product of quality assurance committees is entitled to protection under 42 USC § 1396r (b)(1)(B)(ii). The controversy in the case centers on what documents or reports constitute records of the committee (42 USC § 1396r [b][B][ii]).
The documents at issue can be described as having two
distinct origins: some of the records are maintained by nursing
homes in compliance with Federal or State regulations and may be
Petitioner submits that the infection control reports and incident/accident reports are exempted from disclosure, notwithstanding these general regulatory directives which are not tied to the quality assurance function, because its quality assurance committees generated and utilized the reports. We disagree.
Where facilities are compelled by a statutory or
regulatory dictate to maintain a particular record or report that
is not expressly related to quality assurance, the fact that a
quality assurance committee reviews such information for quality
assurance purposes does not change the essential purpose of the
With respect to the records not maintained pursuant to
statutory or regulatory mandate -- the monthly skin condition and
pressure sore reports, the monthly weight reports and the lists
of facility-acquired infections -- petitioner similarly claims
that these records are exempt from disclosure under the Federal
statute. Relying on the standard articulated by the Supreme
Court of Missouri in State ex rel. Boone v Hamilton (946 SW2d 740
), petitioner requests that we protect any records
generated by its quality assurance committees. In Boone, the
operator of a skilled nursing facility sought to quash a criminal
grand jury subpoena pertaining to records 'generated by or
presented to' its quality assurance committee ( id. at 741).
Determining that the scope of the privilege afforded under the
Federal statute was exceedingly narrow, the Missouri court
concluded that the records created by the committee were
protected but that the privilege did not extend to materials
generated or created by persons or entities operating outside
the quality assurance committee and submitted to the committee
While we agree with the Missouri court and petitioner that the Federal protection is narrow, we decline to adopt the Boone standard because the Federal statute does not restrict quality assurance records to only those reports created by quality assurance committee members themselves. We read the language records of the committee (42 USC § 1396r [b][B][ii]) as encompassing within its parameters any reports generated by or at the behest of a quality assurance committee for quality assurance purposes. Of course, where the committee simply duplicates existing records from clinical files, no privilege will attach. However, compilations, studies or comparisons of clinical data derived from multiple records, created by or at the request of committee personnel for committee use, are record[s] of such committee and are entitled to protection from disclosure pursuant to Federal law.
Applying this standard, we conclude that the three
remaining categories of documents are privileged records of the
quality assurance committees. Dawn Clabeaux, a member of the
quality assurance committee at the Aurora Park facility, averred
that these documents are internal working papers generated by
For the future, we recommend that a party seeking to protect documents from disclosure compile a privilege log in order to aid the court in its assessment of a privilege claim and enable it to undertake in camera review. The log should specify the nature of the contents of the documents, who prepared the records and the basis for the claimed privilege ( see e.g. United States v Construction Products Research, Inc., 73 F3d 464, 473 [2d Cir 1996], cert denied 519 US 927).
Accordingly, the order of the Appellate Division should be modified, without costs, in accordance with this Opinion and, as so modified, affirmed.
1 Petitioner has abandoned its State law privilege claims raised in the courts below.
2 The question whether the grand jury may subpoena the clinical records is not before us on this appeal. The parties conceded at oral argument that the facilities' clinical records were subject to these subpoenas and had already been disclosed.
3 Although MFCU correctly contends that 42 CFR § 483.20 (b)(1)(xii) requires skin condition to be included in comprehensive resident assessments, the Federal regulation does not appear to mandate monthly reports of skin condition information on a facility-wide basis.