STATE
OF
OFFICE
OF ADMINISTRATIVE HEARINGS
FOR
THE COMMISSIONER OF HEALTH
In the Matter
of Hillcrest of Wayzata, PROTECTIVE ORDER
Survey Exit date July 14, 2005
This
matter came before the undersigned Administrative Law Judge by telephone
conference call on December 15, 2005, on the facility’s motion to compel
discovery and the Department’s motion for a Protective Order in the above
matter. The parties subsequently
submitted slightly different versions of a protective order for review and decision
by the undersigned. The motion record
closed on December 23, 2005.
Susan M.
Voigt, Voigt, Klegon & Rode, LLC,
Based
upon all the files and proceedings herein, it is appropriate to issue a
Protective Order. This Order is issued
pursuant to Minn. Stat. § 13.03, subd. 6 and 14.60, subd. 2 and Minn.
Rule 1400.6700, subp. 4. This
Order prohibits the disclosure of data classified as “not public”, under Minn.
Stat. § 626.557, subds. 5(d) and 12b, Minn. Stat. ch. 13 or other
applicable law, to persons not bound by this Protective Order, as set forth
below. Therefore, the Administrative Law
Judge hereby enters the following:
ORDER
1. Disclosure of not public data is
permitted in this matter but is limited to the undersigned Administrative Law
Judge, employees of the Department of Health, counsel of record, and employees
of counsel assisting in the preparation of the case. The Department shall
provide to counsel for Hillcrest the names of the six nursing home residents
previously unidentified by the Department and referred to as Residents #A, B,
C, D, E and F, in the Statement of Deficiencies issued to Hillcrest on July 14,
2005, by the end of business today, December 23, 2005. Counsel for Hillcrest may provide not public
data, including the names of these six residents, to one employee of Hillcrest
solely for the purpose of assisting Counsel in the preparation of this
review. The name of this Hillcrest employee
shall be provided to the Department. Before
contacting Residents # A-F, counsel for Hillcrest shall provide notice of at
least five working days to the Department, in order to permit the Department to
contact these individuals and inform them that the Department was required to
disclose their identity in this proceeding and subject to this Protective
Order. After notice of five working
days, counsel for Hillcrest is free to contact the residents without further
notice to the Department. Because of the
upcoming holidays, counsel for Hillcrest shall wait until at least January 3,
2006, to provide any such notice to the Department. The purpose of permitting disclosure of the
names of these residents is to permit the development of a fair and accurate
record as to the experiences of these residents while in the facility. In any contacts with these residents, both parties
should bear this purpose in mind and act accordingly.
2. Data subject to this Protective Order
includes data classified as “not public” by Minn. Stat. § 626.557,
subds. 5(c) and 12b, Minn. Stat. ch. 13 or other applicable law, and
includes private or confidential data contained in the following: the contents
of the Minnesota Department of Health’s case file; documents and records which
become a part of the record of the review meeting, including any written
post-review meeting submissions allowed by the Administrative Law Judge; the
transcript of the review meeting; the recommended decision of the
Administrative Law Judge; and the final decision of the Commissioner of Health.
3. “Not public” data specifically includes, but
is not limited to: (1) the name of each resident interviewed by the surveyor;
(2) the identity of each individual interviewed as part of the survey process;
and (3) other data on individuals maintained as part of the survey
investigation.
4. Data identifying persons described in
paragraph No. 3 above shall not become public data by virtue of having been
submitted to this proceeding and shall remain not public after the conclusion
of this review meeting. In preparation
for and during the meeting, the parties may refer to names of individuals
involved and will have access to documents containing private information. Unless the Administrative Law Judge
determines that it is in the best interest of the persons described in
paragraph No. 3 above, the record will not be sealed. The Administrative Law Judge’s Recommendation
and the Commissioner’s Order shall use non-identifying initials or aliases in
place of the names of any persons described in paragraph No. 3 above.
5. The meeting in this matter is presumed
open. If there is testimony by or about
persons described in paragraph No. 3 above, that portion of the meeting shall
be closed. If a transcript is ordered, the names of the persons described in
paragraph No. 3 above shall be redacted and replaced by non-identifying initials
or aliases.
6. The data encompassed by this order may be
used only in this proceeding and not for any other purpose including collateral
litigation, unless otherwise ordered by a court of law.
7. Nothing in this Protective Order permits
the disclosure of the identity of any reporter as prohibited by Minn. Stat.
626.557, subd. 5(d).
8. Any person bound as described by this
Protective Order in paragraph No. 1, is prohibited from disclosing any of the data subject to
this Protective Order to anyone other than those persons identified in
paragraph No.1 above. The civil remedies of Minn. Stat. §13.08 apply to the
release of data referred to in this Order.
9. The parties and counsel must return all
copies of data subject to this Protective Order to the Department at the close
of the review.
10. With the exception of paragraph 8, the
provisions of this Protective Order will expire upon compliance with the
requirements of paragraph 9 above.
Dated: December 23, 2005.
s/Kathleen
D. Sheehy ________________________________
KATHLEEN
D. SHEEHY
ADMINISTRATIVE
LAW JUDGE