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September 25, 1979

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


This action, which is before the Court on cross-motions of the parties, raises the important question of whether or not certain documents describing and evaluating federally funded medical services are exempt from disclosure under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (1976). Plaintiff, Public Citizen Health Research Group ("Public Citizen"), a nonprofit organization advocating the delivery of quality health care to Medicare and Medicaid patients in the District of Columbia, seeks access to four categories of records reporting health care services provided in the District. Defendant National Capital Medical Foundation, Inc. ("NCMF"), designated by defendant Department of Health, Education and Welfare ("HEW") as the Professional Standards Review Organization ("PSRO") for the District of Columbia, pursuant to 42 U.S.C. § 1320c-1 (1976), has possession of the records sought. The Court held previously that NCMF is an "agency" for purposes of FOIA, 5 U.S.C. § 552(e), and thus is subject to the disclosure provisions of the Act. Public Citizen Health Research Group v. Department of HEW, 449 F. Supp. 937 (D.D.C.1978).

 Plaintiff here moves for summary judgment, a motion opposed by NCMF. HEW cross-moves for reconsideration of the Court's earlier Order or, alternatively, for summary judgment. Both NCMF and HEW are joined by the intervenor-defendant, American Association of Professional Standards Review Organizations ("AAPSRO"). The issues have been fully briefed, the parties have submitted voluminous affidavits and the Court also has benefitted from extensive oral argument.

 The origins and functions of the PSRO program were discussed at length in the Court's earlier opinion. To summarize, Congress in 1972, responding to the high cost of government-funded inpatient medical services, authorized the Secretary of HEW to designate PSROs as external monitors of federally funded hospital-based health care delivery. NCMF, the federally designated PSRO for the District of Columbia since 1975, contracts with HEW to review the professional services rendered by individual practitioners and institutional providers. NCMF is vested with final and binding authority to determine that care rendered is necessary and conforms to appropriate professional standards, thereby qualifying for federal reimbursement. 42 U.S.C. § 1320c-7(c) (1976). *fn1" Specifically, NCMF must determine: (a) whether the inpatient services rendered are medically necessary; (b) whether such services meet professional standards of quality; and (c) whether appropriate care could be provided as effectively on an outpatient basis or more economically in a different type of inpatient facility. 42 U.S.C. § 1320c-4(a)(1).

 In reviewing the delivery of hospital and surgical services, PSROs such as NCMF compile many distinct types of information. Public Citizen here requests four categories of documents: (1) transmissions identifying the number of admissions, average length of stay, and frequency of disapproved services for patients having specified diagnoses or undergoing particular medical procedures in Washington, D.C. hospitals, *fn2" broken down by hospital and physician. This material, which is available from patient records compiled by each hospital, is applied in the course of hospital self-monitoring or ongoing PSRO reviews. Public Citizen has agreed to the deletion of patient-identifiable data from these records; (2) physician profiles for each of the five identified physicians having the greatest number of Medicaid and Medicare hospital admissions during a specified 12-month period. Profiles are to be developed, on individual practitioners and institutions, to assist PSROs in evaluating the quality and necessity of medical services. 42 U.S.C. § 1320c-4(a)(4). As defined by HEW regulations, "profiles" consist of "aggregated data in formats which display patterns of health care services over a defined period of time," PSRO Transmittal No. 61 at 4 (1978); they do not call for subjective, evaluative comments. NCMF generates a semi-annual Attending Physician Activity Report which lists in tabular form the kind of descriptive data sought by plaintiff; *fn3" (3) hospital profiles for the five identified hospitals with the greatest number of Medicaid and Medicare admissions during a designated 12-month period. NCMF generates a series of hospital reports which, although once again not labelled "profiles," is deemed responsive by Public Citizen to its hospital profile request; (4) all Medical Care Evaluation ("MCE") studies completed by NCMF to date. MCE studies are in-depth medical service reviews aimed at effecting specific improvements in health care delivery. PSRO Program Manual, § 705.3 at VII:13-16 (1974). The studies generally deal with services rendered by a number of physicians in one or more hospitals, rather than with an individual patient or practitioner. PSROs choose MCE topics relating to widespread medical problems, and if the results of data collection reveal a failure to meet pre-established objective performance criteria, the PSRO directs that specific corrective measures be initiated and takes steps to assure that the deficiency is in fact being addressed. See generally PSRO Program Manual § 705.34 at VII:14 (1974); PSRO Transmittal No. 43 at 3-4 (1977). NCMF conducts regular area-wide MCE studies; it also delegates to individual hospitals the responsibility of identifying hospital-wide problem areas and performing MCEs on those topics. Abstracts and summary data on all MCEs are transmitted regularly to HEW, which uses the information to monitor PSRO performance and to identify potential areas for technical assistance to PSROs.

 Public Citizen, in requesting the four categories of documents outlined above, expressly disavows any interest in information which would identify, directly or indirectly, individual patients. Moreover, since all of the records requested are compiled regularly, defendants do not face the unacceptable burden of creating additional materials to satisfy a FOIA request. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 161-62, 95 S. Ct. 1504, 44 L. Ed. 2d 29 (1975); Forsham v. Califano, 190 U.S.App.D.C. 231, 239, 587 F.2d 1128, 1136 (D.C. Cir. 1978), Cert. granted, 441 U.S. 942, 99 S. Ct. 2159, 60 L. Ed. 2d 1044 (1979).

 The Court has examined In camera document samples submitted by NCMF for each category, and is satisfied that they would be responsive to plaintiff's request. The requested material has, however, been withheld in its entirety, and defendants argue forcefully against disclosure on the basis of five different FOIA exemptions. The Court will address each claim for exemption separately.

 Exemption Three

 Defendants contend that Congress, by enacting the PSRO legislation, determined explicitly that certain materials, including those sought here, were not to be disclosed. Exemption three, as recently amended, permits nondisclosure only if a collateral statute substantially delineates the nature of or means for selecting material to be withheld. *fn4"

 Under 42 U.S.C. § 1320c-15:

 Subsection (b) authorizes disclosure to assist in investigating fraud and abuse, and in implementing health care planning or related activities; in both instances disclosure can occur only with PSRO consent. The issue presented is thus whether the statutory language of subsection (a) is sufficiently precise to evidence an unambiguous congressional determination, thereby qualifying the requested documents for nondisclosure as material specifically exempted by a collateral statute.

 Congress, in narrowing the scope of exemption three, limited its applicability to statutes that "significantly inform" an administrator's discretion to choose between disclosure and secrecy. American Jewish Congress v. Kreps, 187 U.S. App. D.C. 413, 574 F.2d 624 (D.C. Cir. 1978). If Congress confers no administrative discretion at all, the exemption will of course apply. See Seymour v. Barabba, 182 U.S.App.D.C. 185, 559 F.2d 806 (D.C. Cir. 1977). Section 1320c-15 does not speak in such definitive terms; subsections (a)(1) and (a)(2) vest residual discretion in the hands of the Secretary.

 Nor is the discretion so particularized in its designation of criteria for withholding or types of matters to be withheld as to fit within the compass of the exemption. Under subsection (a)(1), the administrator may disclose all information he deems necessary to fulfill the statutory purpose of "promot(ing) effective, efficient and economical delivery of health care services of proper quality . . . ." 42 U.S.C. § 1320c. Such language fails to focus meaningfully on any category or class of items that Congress finds appropriate for exemption. Stretch v. Weinberger, 495 F.2d 639 (3d Cir. 1974). In this regard it differs crucially from the language of 35 U.S.C. § 122, withholding "patent applications and information concerning them." See Irons & Sears v. Dann, 196 U.S.App.D.C. 308 at ...

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