After Marv Davidov passed away in early 2012, Public Record Media sought to obtain the FBI’s full collection of records on Davidov, in order to fill out the historical record about the activist’s Honeywell-related activities, as well as Minnesota-based political protest more generally. The FBI responded to our request in September of last year, and stated that the agency held approximately 11,806 pages of responsive records. We subsequently sought electronic copies of all such documents.

On April 5, 2013, Becky Barnson from the FBI’s FOIA office called to ask if PRM would be interested in narrowing the scope of its Davidov FOIA request in order to expedite processing. She noted that the size of PRM’s copy order had placed it in the “large queue” track, and as such it would take a substantial amount of time to complete.

During the course of our conversation, Ms. Barnson noted that the FBI held multiple documents relating to a Minnesota-based lawsuit, and wondered if PRM might wish to disregard such documents, since they would likely be available from the court that handled the case.

I indicated that PRM might be willing to forego copies of the court records, since they were likely duplicates of those currently held by the Minnesota Historical Society. I also asked for more clarity regarding the scope of the court documents before making a decision.

Ms. Barnson and I spoke again on April 11, 2013. Ms. Barnson noted that the court documents held by the agency pertained to a Honeywell Project lawsuit that began in 1977, and that there were 4650 in all. I asked her to exclude such documents from the copy order, since they likely overlapped with the MHS document collection. Ms. Barnson noted that the remaining documents would be provided on CD in a series of fourteen “interim releases,” and that production would take up to a year to complete.

Find PRM’s prior correspondence related to this request here. Find an inventory of the MHS “Honeywell Project” lawsuit records here.

Previously, HHS had released two other batches of documents as “interim responses” to PRM’s litigation. These batches included documents which indicated that CMS had added additional program reporting requirements during the run-up to the renewal of Minnesota’s Medicaid waiver. The requirements appear to have been added in response to concerns about public health care program management raised by Minnesota State Senators John Marty and Sean Nienow. Other documents from these batches indicated that Minnesota’s former Medicaid director may have asked CMS personnel to “stop meeting” with this same pair of lawmakers – both of whom had been vocal critics of Minnesota’s management of federal Medicaid funds.

PRM is still evaluating the newest group of documents, but our preliminary review shows that CMS was alerted to program irregularities by not only Senators Marty and Nienow, but also by the Greater Minnesota Health Care Coalition (GMHCC), a consumer advocacy group. Several reports produced by the organization were included in the March 28 document cache provided by HHS. GMHCC released a public report detailing similar concerns in August of 2012.

We will post a more extensive summary of documents from the third HHS cache soon.

Sections of the 2012 NDAA contain military detention provisions that have raised controversy and questions about their scope – including their possible application within the United States.

Public Record Media (PRM)’s April, 2012 FOIA request is the second that we’ve submitted to OLC regarding matters of indefinite military detention within the United States. (NOTE – In the months since we filed our requests, Congress passed the 2013 NDAA, which included language that bears on the detention provisions of the 2012 law.)

Domestic detention request
In January of 2012, PRM filed a FOIA request with OLC seeking legal memos relating to how the Obama administration viewed its domestic detention authorities (including those authorized by Congress, as well the President’s own, plenary powers.) The request also sought memos that examined the ways in which the 2012 NDAA impacted the Posse Comitatus Act – the post-Civil War law that limits the ability of the U.S. military to participate in civilian law enforcement. The date range of the request ran from January 1, 2009, to January 1, 2012.

On February 22, 2012, the OLC responded to this request by acknowledging the existence of 14 responsive documents. OLC denied access to all of them under FOIA Exemption 5, which protects documents that are “deliberative in nature,” or which contain attorney-client correspondence.

While courts have often give agencies wide berth to withhold records under Exemption 5, FOIA case law has also generally held that documents that are “post-decisional” in nature, or that constitute “final determinations of policy” cannot be protected by Exemption 5, and must be disclosed to requesters.

NDAA request
In April of 2013, PRM sent a re-formulated FOIA request to OLC, seeking legal memos regarding domestic detention that were all specifically tied to the 2012 NDAA, and which expressly constituted “final determinations of policy.” The date range of the request was open-ended.

By January of 2013, OLC had not substantively responded to our request, other than to acknowledge receipt of the request itself, and to note its inability to process the request within the 20-day statutory time frame. PRM subsequently filed an administrative appeal with the Department of Justice’s Office of Information Policy (OIP), seeking a response.

On March 29, OLC issued a response to PRM’s reformulated request. The agency’s response indicated that OLC had identified five responsive documents, but that four were being withheld under FOIA Exemption 5, since they were “not appropriate for discretionary release.” OLC also stated that one document was being forwarded to OIP for a “direct response.” OIP is the office where PRM filed its administrative appeal in this matter. As of the date of this writing, the Office of Information Policy has not yet issued a substantive response to that appeal.

Per the terms of PRM’s second FOIA request, it is reasonable to assume that all four of the documents being withheld by OLC are “final determinations” of government policy – documents that are generally difficult to withhold under the fifth exemption to the FOIA. Watch this space for more news on PRM’s follow-up on this matter.

PRM filed its FOIA request in this matter in February of 2012, after obtaining correspondence regarding Minnesota State Senator John Marty’s concerns about the management of Minnesota’s public health care programs. These programs bundle state and federal funds together, and disseminate them to health care providers through various non-profit managed care organizations (MCOs). Prior to the involvement of the MCOs, such funds were disbursed directly by the state.

In written correspondence with CMS (the component of HHS that is responsible for approving Medicaid funds for state-level health care programs), Senator Marty raised concerns about the possible financial mismanagement of the programs, and a resultant reduction in the quality of care. He also requested that CMS not approve the waiver under which Minnesota receives Medicaid funds, since he believed that such funds were being wasted by the state’s MCOs.

Correspondence regarding State Senator Marty
The most recent HHS document cache contains internal CMS correspondence related to the formulation of the agency’s responses to Senator Marty’s concerns.

One such document is a January 30, 2012 e-mail sent by Jennifer Sheer of CMS to Richard Jensen, director of the Division of State Demonstrations and Waivers (DSDW) within CMS. The e-mail provides a summary of Senator Marty’s correspondence with the agency, and also discusses attempts to get staff from the Minnesota Department of Human Services (DHS) to participate in a teleconference with Senator Marty and other Minnesota stakeholders. DHS disburses federal Medicaid funds to the MCOs that administer Minnesota’s public heath care programs. At the time of Jennifer Sheer’s e-mail, David Godfrey was the Minnesota Medicaid Director at DHS.

Conference calls with Senator Marty; CMS summary of results
In her January 30 e-mail, Ms. Sheer provided details of two conference calls held with Senator Marty’s office and other Minnesota “stakeholders” on July 11 and August 2 of 2011. She noted that in response to concerns raised by the stakeholders, “DSDW added … language addressing the managed care bidding and contracting process” into public program annual reporting requirements.

Ms. Sheer’s e-mail noted that Senator Marty’s office followed up with CMS on September 6, 2011, and continued to express concerns about public program accountability, despite the addition of the new reporting requirements. Ms. Sheer’s e-mail then stated that during the fall of 2011, “DSDW worked with the State to try to arrange another conference call, one that would include … David Godfrey or one of his representatives … after that conversation we learned that he did not want to participate in a conference call and asked that we stop meeting with this group.”

Jennifer Sheer’s e-mail then went on to note that “Barb Jacobs reached out in November 3rd via phone to inquire about the status of a response to Sen. Marty’s 9/6 letter and the stakeholders 8/9 letter; no response was generated, pending further consideration of how best to address the situation given the State’s rejection of a joint call and that DSDW has already discussed the stakeholders areas of concern during the August 2nd call.”

Summary presented to CMS Medicaid director
Later on January 30, 2012, Richard Jensen sent an e-mail summary of the information provided by Jennifer Sheer to CMS Medicaid director Cynthia Mann and other agency staff. Mr. Jensen’s e-mail noted that,

“During the renewal negotiations for MN’s PMAP 1115 Demonstration last spring and summer, CMS received letters from several stakeholders (including Senator Marty’s May 18, 2011 letter) that expressed concerns with the management of Medicaid funds by PMAP + MCOS. These letters also expressed concern regarding quality and access … Internally, we are not aware of any complaints/concerns about access or quality, and in general MN’s MCOs are well regarded.”

Mr. Jensen’s e-mail then went on to discuss the CMS conference calls held with Minnesota stakeholders during the summer of 2011. According to the e-mail,

“We had no information, nor did the stakeholders provide any information, that supported claims they continued to make regarding mismanagement by the MCOs. As communication continued into the fall we tried to facilitate a meeting between David Godfrey and the stakeholders to discuss their concerns, but David did not see a reason for such a discussion and did not understand why we were still speaking to them.”

The e-mail then summarized the next steps taken by CMS, including the agency’s documentation of contacts from the Senator’s office. Mr. Jensen concluded his message by noting that “we do need to follow up with a response.” The following three sentences of PRM’s copy of his e-mail were redacted by HHS, with the exception of the words, “At this point I would not recommend.”

The HHS redaction is labeled as having been made pursuant to FOIA exemption 5, which protects information subject to privilege, including the “deliberative process” privilege. This privilege is intended to protect internal agency deliberations before a determination of policy has been made.

PRM will continue to review the document cache provided by HHS, and will post summaries of pertinent records as our review continues.

On February 26, PRM filed a response to the DOJ’s objections, arguing that the Chief Magistrate was correct to award fees in the case.

DOJ has requested and received leave from the court to reply to PRM’s response, following which Judge Davis’ ruling will be forthcoming.

(Note – this version of the post contains a correction regarding the date of PRM’s response submission – February 26, rather than February 25.)

Our initial FOIA request sought three categories of data from the Centers for Medicare and Medicaid Services (CMS), the component of HHS responsible for disbursing Medicaid funds to states:

1. Any and all memoranda, correspondence, or communications – in paper or electronic form – between employees or officials of CMS, and Minnesota State Senator John Marty;

2. Any and all memoranda, correspondence, or communications – in paper or electronic form – between employees and/or officials of CMS related to Minnesota State Senator John Marty;

3. Any and all memoranda, correspondence, or communications – in paper or electronic form – between employees and/or officials of CMS, produced between January 1, 2011, and February 1, 2012, related to determinations made by (CMS) about Minnesota’s 1115 Medicaid waiver status.

The documents that comprised the first HHS data cache are all un-redacted, and largely involve procedural matters relating to the evaluation and renewal of Minnesota’s 1115 Medicaid waiver. A smaller sub-set of documents relates to criticism of the management of Minnesota’s public health care programs, including concerns raised by Minnesota State Senators John Marty and Sean Nienow. These public programs receive federal funds under the 1115 waiver, and are administered by non-profit managed care organizations (MCOs).

The following is an overview of key documents contained within the HHS data cache.

Letter from Senator Sean Nienow, Senator Marty’s office, others – Aug 9, 2011
The August 9 letter thanks Richard Jensen and other CMS staffers for participating in an August 2 teleconference to discuss concerns related to the renewal of Minnesota’s 1115 Medicaid waiver. The letter extends thanks to CMS staff for making changes to the “Special Terms and Conditions” section of the waiver’s reporting requirements.

The letter goes on to note that while the undersigned parties applaud the addition of the new reporting requirements, they are also curious to know whether there will be independent audits of Minnesota’s 1115 waiver programs, since the new requirements only involve self-reporting by the participating MCOs. The letter states that, “The Minnesota group would appreciate a response from CMS on whether or not an independent audit will be conducted in Minnesota. If not, why?”

“Ongoing PMAP + Stakeholder concerns” e-mail
An undated e-mail from Jennifer Sheer of CMS notes the existence of “a number of letters and e-mails … expressing concern over the renewal of the PMAP demonstration” and solicits a discussion regarding two particular letters.

The CMS document cache contains several letters asking CMS for a more thorough review of the state’s public health care programs. Several other letters oppose the extension of Minnesota’s 1115 waiver. Letter writers include:

Alejandro M. Aguirre, member of the Board of Trustees of the Minnesota Dental Association.

Lisa Niles, MD; Executive Director of the Minnesota Universal Health Care Coalition.

Linda Hamilton of the Minnesota Nurses Association.

Letter from Donald Berwick, MD to Governor Mark Dayton
This undated letter from Donald Berwick of CMS to Minnesota Governor Mark Dayton sets out criteria to be met in order for CMS to renew Minnesota’s 1115 Medicaid waiver. According to Dr. Berwick’s letter,

“On March 10, 2011, Minnesota submitted to the Centers for Medicare & Medicaid (CMS) its revised extension for its section 1115 demonstration, entitled Prepaid Medical Assistance Project Plus (PMAP+) (11-W-00039/5), which is due to expire on June 30, 2011 … I am pleased to inform you that based on our discussion regarding your proposal, we are eager to partner with you. The proposal appears to further the objectives of title XIX by expanding coverage to additional needy individuals.”

Dr. Berwick further states that program expansion can only occur if the state agrees to modify two program elements. He notes that the state must remove the six-month waiting period for non-state residents, and allow an option for “adult-without-children” recipients to self-declare citizenship.

Letter from Cynthia Mann to Davd Godfrey, Jun 30, 2011
The letter announces that CMS has accepted the extension of Minnesota’s 1115 waiver, subject to the implementation of certain changes. Ms. Mann notes that the waiver will be in force on July 1, 2011, and will continue until Dec 31, 2013.

Letter from David Godfrey to Cynthia Mann, July 27, 2011
The letter states that Minnesota accepts the 1115 waiver extension, including all of its conditions. Mr. Godfrey further details the changes that the state plans to undertake in order to comply.

Letter from Senator Marty to Cynthia Mann, Jan 26, 2012
This letter from Senator Marty to Cynthia Mann of CMS inquires about when – and whether – CMS will take action to investigate alleged improprieties in Minnesota health plan spending. According to Senator Marty’s letter,

“When we are talking about billions in federal and state funds and some potential fraud, one would hope to see CMS immediately step in to investigate the situation and audit the program, yet I cannot even get a return call from your office … Many low income Minnesotans are not receiving the care they need, and the public deserves to know that their taxes are being wisely spent.”

Senator Marty’s letter is copied to B. Todd Jones, the U.S. Attorney for Minnesota, Lucinda Jesson, Commissioner of the Minnesota Department of Human Services, and David Godfrey, Minnesota Medicaid Director.

The bulk of the remaining documents relate to the implementation and verification of the changes to Minnesota’s public health care programs that were sought by CMS.

PRM will continue to post summaries of additional HHS documents as we receive them.

In 2011, Governor Mark Dayton also signed Executive Order 11-06, which directed the Minnesota Department of Commerce (DOC) to review the financial positions of the MCOs that participate in Minnesota’s public health care programs. Such reviews were intended to include examinations of MCO expense allocations, as well as details regarding MCO reserves.

At the end of last year, the DOC completed its initial batch of audits under EO 11-06, which examined MCO activity for fiscal year 2011. The Minnesota Department of Human Services (DHS) commented on DOC’s findings on December 6, 2012.

DHS comments
According to a DHS press release, DHS Commissioner Lucinda Jesson characterized MCO financial management of public programs as “generally sound,” but also identified “several issues … that deserve further attention.” DHS described those issues as follows:

• MCOs did not limit executive salaries before allocating those expenses to public programs;

• MCOs allocated advertising and marketing expenses to public programs, despite contractual restrictions on such activity;

• MCOs retained unnecessarily high reserves;

• MCO administrative expenses were not always documented in sufficient detail;

• One MCO (Blue Plus) inappropriately allocated lobbying expenses to public programs.

In many ways, the issues identified by the Commerce Department (including matters related to reserves, marketing, and administrative expenses) correlate with concerns raised by MCO critics over the past three years. David Feinwachs – former counsel for the Minnesota Hospital Association – went public with his criticism of MCO administrative spending and financial management in 2010. The Greater Minnesota Health Care Coalition also raised related concerns during this same timeframe.

MCO comments
The MCOs examined in the Commerce Department’s audit were allowed to review the department’s findings and to issue their own comments in response. MCO comments are appended to the DOC review of each organization.

In general, the MCOs raised similar issues. Many objected to DOC/DHS comments about executive compensation, noting that no statutory salary caps exist for MCO executives by virtue of their organization’s participation in public program activity. Virtually all of the MCOs defended their documentation of administrative expenses. In addition, Blue Plus contended that its lobbying expenses were properly allocated.

Prior year MCO examinations
Executive Order 11-06 is not the first authority to task the DOC with the examination of MCO activity. Minnesota Statute 62D – which governs the operation of MCOs in Minnesota – allows the Commissioner of Health to contract with the DOC to evaluate whether the MCOs that participate in public programs are in compliance with the rules – financial and otherwise – that govern their operation.

Public Record Media (PRM) currently has a data request pending with the DOC regarding documents relating to MCO administration of public health care programs. Through its request, PRM hopes to gather additional information about state oversight of MCO management of such programs.

The debate over the use of License Plate Recognition (LPR) technology has hit the Minnesota Legislature, with the introduction of two LPR-related bills in the Minnesota State Senate.

LPR scanners are increasingly being used by law enforcement agencies to capture and record the license plate images of vehicles encountered by police squad cars. Such collection schemes can create databases with millions of license scans correlated to time and place data, depending upon an agency’s LPR data retention schedule. Such databases can generate highly detailed records of the movements of individuals – records that were far more difficult to compile before the advent of LPR technology.

The nature and scale of LPR data collection has raised privacy issues on a number of fronts, ranging from concerns over police surveillance, to concerns about stalking via public access to LPR information. Both of the bills introduced in the Minnesota Senate appear to acknowledge privacy issues by mandating the destruction of LPR data that is not responsive to specific investigative criteria.

PRM obtained its first batch of LPR-related documents from the Saint Paul Police Department in 2011. Those documents included several batches of correspondence related to the privacy implications of LPR technology. The degree of attention the department paid to those issues was notable, as were the multiple references to related activities around the nation – including work undertaken by the International Association of Chiefs of Police.

LPR technology is still fairly novel, and comprehensive policies for its use have by no means been widely adopted yet.

DISCLOSURE – I currently serve on the board of the Minnesota Coalition on Government Information, which has made policy recommendations about how LPR data should be treated under Minnesota law, including its Data Practices classification.

In its initial response to PRM’s FOIA request, DOJ’s Office of Legal Counsel (OLC) provided two answers to PRM’s three-part request. First, OLC refused to confirm or deny the existence of records responsive to the first item of the request. Then, OLC further stated that it held documents “responsive to the remaining items” of the request. The two remaining items related to legal opinions regarding the use of lethal force by UAVs outside the United States (item two), and inside the United States (item three). OLC denied access to all responsive documents.

“No records” determination
PRM eventually sued to get access to “item three” documents relating to the possible domestic use of UAV drones. After the initiation of litigation, DOJ stated that it did not, in fact, possess “item three” documents. PRM continued its lawsuit up to the point where DOJ produced a sworn declaration regarding its representation, after which PRM moved to dismiss the suit.

DOJ’s declaration in the case stated that OLC did not – at least as of April, 2012 – possess any legal opinions related to the potential use of lethal force by UAVs within the United States.

Award of fees
Since DOJ waited until after PRM had filed suit before specifically stating that it had no responsive documents, PRM sought to recover its litigation costs.

On January 29, 2013, Chief Magistrate Judge Arthur J. Boylan issued an order on PRM’s motion for fees and costs, and awarded the organization $7,500.00 in attorneys’ fees, plus $350.00 for its filing fee. Fees were awarded due to the fact that PRM’s lawsuit caused DOJ to change its position in response to litigation. According to Judge Boylan’s order,

“In the present case, the Court finds that Plaintiff ‘s claim did in fact cause Defendant to change its position regarding the third-category request, and therefore Plaintiff “substantially prevailed,” making it eligible for an award of attorney’s fees …

The change from an initial, (seemingly) positive identification of documents relating to the government’s use of UAVs within its jurisdiction to the final conclusion that no such documents exist is a substantial change in position. Despite the fact that no documents were produced, the Plaintiff and the public at large can still glean important information from this change – namely, the government does not possess any documents related to the lethal use of UAVs within U.S. jurisdiction.”

Reduction of fee award
In his order, Judge Boylan noted that the fee award requested by PRM would be reduced from the amount sought, due to a lack of sufficient documentation. According to the order,

“Plaintiff is found to be both eligible and entitled to an award of attorney’s fees. However, because Plaintiff provided no documentation to support the hours it claimed to have expended on this case, the Court determines that Plaintiff’s work reasonably required 50 hours of work at its rate of $150 per hour.”

Links to Judge Boylan’s order, as well as PRM’s and DOJ’s briefs can be found here:

Order on Motion for Attorneys’ Fees and Costs

Plaintiff’s motion for Fees and Costs

Defendant’s Memorandum in Opposition to Plaintiff’s Motion for Fees

Plaintiff’s Reply Memorandum in Support of Fees Motion

NOTE – This post has was updated on February 14, 2013 to include links to the order and the case briefs.

PRM’s request sought correspondence between Minnesota State Senator John Marty and CMS, the component of HHS responsible for overseeing state Medicaid spending. The request also sought documentation related to the “1115 waiver” that allows federal dollars to be spent on Minnesota’s public health care programs, even though those programs do not entirely conform to federal Medicaid rules.

Managed care controversy
Since 2010, members of the Minnesota Legislature have been asking questions about the operation and oversight of the state’s Medicaid-funded public programs. Minnesota’s public programs are paid for by blocks of state and federal money that are distributed through non-profit Health Maintenance Organizations (HMOs). Under Minnesota’s “managed care” program model, HMOs reimburse medical providers for costs associated with public program enrollees.

In 2010, David Feinwachs – former general counsel for the Minnesota Hospital Association – began raising questions about the amount of money that HMOs were retaining from their public program business, as opposed to paying out for program costs. Minnesota legislators – including State Senator John Marty – began asking questions about managed care oversight and accountability.

Senator Marty request
In 2011, Senator Marty sent letters to the Centers for Medicaid Services (CMS) in which he asked CMS to discontinue the 1115 waiver that allowed Minnesota’s public programs to receive federal Medicaid funds. Senator Marty’s letters expressed concerns that such funds were being wasted, rather than being channeled towards their intended purposes.

In early 2012, PRM obtained some of Senator Marty’s correspondence, and filed a FOIA request with CMS to discover the extent to which Senator Marty’s letters had been discussed within CMS, and whether they had had an impact on determinations about the renewal of Minnesota’s 1115 waiver.

FOIA lawsuit
PRM waited two months for HHS to provide documents, and then filed an administrative appeal in April of 2012. By December of 2012, PRM had received no determination related to its administrative appeal, and filed suit in federal court to compel compliance the FOIA.

Document release
On January 22, 2013, HHS released 229 un-redacted documents to PRM in an “interim response” to PRM’s FOIA request. The release came three days before HHS filed its answer to PRM’s complaint in federal court.

The documents released by HHS contain copies of correspondence between Senator Marty and CMS, as well as pages of records related to the review of Minnesota’s Medicaid waiver. Among these records are multiple reviews of public programs elements, as well as a draft of an “Agreement in Principle” to extend the Medicaid waiver.

In its letter of Jan 22 – as well as in its answer filed on Jan 25 – HHS indicated that additional documents will be forthcoming.

We will post the documents in our archive shortly, and will provide summary information when we have reviewed the records in total.