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April 25, 1978

DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE et al., Defendants, American Association of Professional Standards Review Organizations, Intervening Defendant

The opinion of the court was delivered by: GESELL

 GESELL, District Judge.

 The primary issue presented by these cross-motions is whether or not defendant National Capital Medical Foundation, Inc. ("NCMF") is an "agency" for purposes of the Freedom of Information Act, 5 U.S.C. § 552(e) (1976), and thus subject to the disclosure provisions of that Act. The matter has been fully briefed and argued.

 Plaintiff, Public Citizen Health Research Group ("Public Citizen"), is a nonprofit organization engaged in research and consumer advocacy on health and safety matters affecting Medicare and Medicaid patients in the District of Columbia. It seeks certain documents from NCMF or, alternatively, from the Department of Health, Education, and Welfare ("HEW"), a federal agency to which NCMF has certain statutory obligations, having been designated by HEW as a Professional Standards Review Organization ("PSRO") pursuant to 42 U.S.C. § 1320c-1 (Supp. V 1975).

 NCMF and HEW have moved to dismiss or, alternatively, for summary judgment. They are joined by the American Association of Professional Standards Review Organizations, which was allowed to intervene as a defendant. Public Citizen has crossmoved for partial summary judgment. There are no material facts in dispute.

 The PSRO program was instituted by Congress in 1972 "to promote the effective, efficient, and economical delivery of health care services of proper quality" in federally funded health care programs, most notably Medicaid and Medicare. Id. § 1320c. To this end, PSROs, such as defendant NCMF, are required to review health care provided to hospital patients covered by Medicaid and Medicare and to make final and binding determinations as to whether the care rendered was necessary and therefore qualified for federal reimbursement.

 When it became apparent to Congress that these internal review procedures were inadequate, amendments to the Social Security Act were proposed to establish local and regional regulatory physicians' groups charged with the duty to make appropriate reviews. Ultimately in 1972 Congress adopted the PSRO Amendments to the Social Security Act, Pub.L. No. 92-603, § 249F(b), 86 Stat. 1329 (1972), which created a comprehensive system of external monitoring of hospital-based health care delivery by PSROs. The Secretary of HEW was required to establish areas throughout the country within which PSROs would be designated. As soon thereafter as practicable, the Secretary was required to designate a qualified organization within each area as the PSRO. 42 U.S.C. § 1320c-1(a) (Supp. V 1975).

 Federally designated PSROs such as NCMF operate under contract with HEW. In addition to other functions, they review the professional services rendered by practitioners and providers in their area to determine: (1) whether certain institutionally based services are medically necessary; (2) whether such services are of acceptable quality; and (3) whether appropriate care could be provided as effectively on an outpatient basis or more economically in a different type of inpatient facility. The purpose of these reviews is to determine if the services rendered were delivered in conformance with the applicable criteria. Reviews conducted by PSROs are relatively standardized, since all PSRO reviews must be based on regional norms of medical practice established for that area.

 Under a system established by HEW, members of a PSRO routinely review Medicaid and Medicare patients in hospitals within the PSRO's jurisdiction. According to HEW requirements, PSROs must undertake four stages of review: (1) admission certification, (2) continued stay review, (3) medical care evaluation studies, and (4) profile analysis. HEW, PSRO Program Manual § 705, at VII-5 to VII-16 (1974) ("Program Manual").

 Admission certification review concerns the medical necessity of hospital admissions. PSRO members generally review an admission during the first day of hospital stay to determine whether the patient needs to be hospitalized at all. Based on that review, members predict, or "assign," the appropriate length of the patient's stay. 42 U.S.C. § 1320c-4(a)(2) (Supp. V 1975); Program Manual § 705.1, at VII-5 to VII-10.

 Continued stay reviews are conducted for patients who remain in the hospital beyond the expiration of their predicted stay. These reviews are made to determine whether continued hospitalization is in fact needed. Additional days may be assigned at this time, or, in the event that the PSRO concludes the additional stay is not "medically necessary," the PSRO can disapprove of continued hospitalization. 42 U.S.C. § 1320c-5(d) (Supp. V 1975); Program Manual § 705.2, at VII-10 to VII-13. In that event, once the patient has been notified that the PSRO deems his additional stay to be medically unnecessary, the patient must thereafter either leave the hospital or make private payment. Program Manual § 1905.5, at XIX-5.

 Once a PSRO determines medical necessity, conformance to professional standards, and appropriateness of institutional setting, other matters in the exclusive province of HEW must be resolved. PSROs do not determine eligibility under the programs, coverage, or the reasonableness of charges. Yet the fact remains that in practically all cases benefits are not ...

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