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3-0900-21650-2 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF HEALTH
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PREHEARING ORDER AND ORDER ON MOTION TO COMPEL DISCOVERY |
This matter came before Administrative Law Judge Kathleen D.
Sheehy for a prehearing conference and to consider the Petitioner’s Motion to
Compel Discovery filed on November 9, 2010.
The Respondent provided an oral response to the motion during a
telephone prehearing conference held on November 11, 2010. The motion record closed at the conclusion of
the telephone conference.
William S. Borchers, Attorney at Law, appeared for R.B.
(Petitioner). Susan M. Voigt, Voigt, Klegon & Rode, appeared for St.
Anthony Health Center (Respondent).
Based on all of the files and proceedings herein, and for the reasons contained in the Memorandum attached hereto, the Administrative Law Judge makes the following:
1. The hearing will take place commencing at 1:30 p.m. on December 2, 2010, at the Mission Nursing Home;
2. By November 29, 2010, the parties shall exchange all documents they intend to offer into evidence at the hearing, along with a witness list containing a summary of the anticipated testimony of each witness; the parties shall also provide a copy of the exhibit list and witness list to the ALJ at this time;
3. The Petitioner’s Motion to Compel Discovery is GRANTED, with the issue of copying cost reserved as discussed in the Memorandum; and
4. The Respondent shall provide all material responsive to the Petitioner’s discovery requests by November 16, 2010.
Dated: November 12, 2010
s/Kathleen D.
Sheehy
KATHLEEN
D. SHEEHY
Administrative
Law Judge
MEMORANDUM
The Petitioner was
admitted to the Respondent’s rehabilitation unit after surgery in August
2010. At the end of the rehabilitation
stay, on or about September 30, 2010, he was transferred to the Respondent’s
long-term care floor. The Petitioner contends that he objected
to this move because he wanted to return to the adjoining assisted living
facility, where he had lived with his wife prior to the surgery.
On
October 15, 2010, the Petitioner was given written notice that the Respondent
intended to discharge him that day because the Respondent believed the
discharge was necessary to protect the safety and health of other
residents. Upon learning of the
discharge notice, the Petitioner’s counsel filed an appeal with the Department of
Health. Despite the pending appeal, the
Respondent discharged the Petitioner that afternoon and transferred him to the
Mission Nursing Home in
On October 23, 2010, the Petitioner wrote to the Respondent’s counsel requesting copies of all documents pertaining to the Petitioner and his discharge; and copies of policies and procedures pertaining to admission of residents to short-term and long-term care, behavior management of residents with dementia, transfer of residents within the facility, and voluntary and involuntary transfer and discharge. In addition, the Petitioner requested that the facility provide a written description of the alleged behavioral incidents that justified the discharge, including the names of witnesses and staff members involved and a description of the facility’s response, if any, to such incidents.[1]
In response to this request, the Respondent declined to provide a copy of the Petitioner’s medical record unless the Petitioner first paid the sum of $460.02 for the copying cost. The Respondent also declined to provide copies of other documents pertaining to the discharge, on the ground that these documents might contain information that is not public, such as the names of other residents and staff members. Finally, the Respondent refused to provide copies of the requested policies and procedures, maintaining those materials were not relevant to the issues in this case.
Analysis
This
matter is a contested case hearing under
Rule 26.02 of the Minnesota Rules of Civil Procedure permits discovery regarding any unprivileged matter that is “relevant to the subject matter involved in the pending action,” including information relating to the “claim or defense of the party seeking discovery or to the claim or defense of any other party.” Materials that may be used in impeachment of witnesses may also be discovered as relevant information.[4] It is well accepted that the discovery rules are given “broad and liberal treatment” in order to ensure that litigants have complete access to the facts prior to trial and thereby avoid surprises at the ultimate hearing or trial.[5] Administrative Law Judges at the OAH “have traditionally been liberal in granting discovery when the request is not used to oppress the opposing party in cases involving limited issues or amounts.”[6]
The definition of relevancy in the discovery context has been broadly construed to include any matter “that bears on” an issue in the case or any matter “that reasonably could lead to other matter that could bear on any issue that is or may be in the case.”[7] As a general matter, evidence is deemed to be relevant if it would logically tend to prove or disprove a material fact in issue.[8] In summary, “matters sought to be discovered in administrative law settings will be considered relevant if the information requested has a logical relationship to the resolution of a claim or defense in the contested case proceeding, is calculated to lead to such information, or is sought for purposes of impeachment.”[9] The definition of “relevancy” for discovery purposes is not limited by the definition of “relevancy” for evidentiary purposes. Thus, information that is deemed relevant at the discovery stage may not necessarily be admissible evidence at the hearing.[10]
The Petitioner’s Medical Record. A resident or his legal representative has the right to access all records pertaining to himself or herself within 24 hours, and to purchase, at a cost “not to exceed the community standard,” photocopies of the records or any portions of them upon request and with two working days advance notice to the facility.[11] State law provides in Minn. Stat. § 144.292, subd. 6(a) that, when a patient requests a copy of the medical record for purposes of reviewing current medical care, the provider must not charge a fee; under other circumstances, the provider may charge the amount provided in Minn. Stat. § 144.292, subd. 6(b).
The Respondent objected to producing the Petitioner’s medical record unless the Petitioner first reimbursed it in the amount of $460.02, the amount permitted by Minn. Stat. § 144.292, subd. 6(b). The Respondent contends that the Petitioner is not currently receiving medical care at the Respondent’s facility and that it is entitled to charge him for copying the record. The Petitioner maintains that he is entitled to a free copy of his medical record for the purpose of reviewing current medical care, as provided in Minn. Stat. 144.292, subd. 6(a). The Petitioner argues that, although the Petitioner is not currently receiving medical care from the Respondent, it is only because the Respondent improperly transferred him to a different nursing home while this appeal was pending.
Because no hearing has been held and there is no record to support it, the Administrative Law Judge indicated during the telephone conference that she could not make a finding that the medical record should be provided free of charge because an improper discharge took place. The Administrative Law Judge stated nonetheless that the record should be provided to the Petitioner immediately, with the issue of cost reserved for the hearing. Moreover, the ALJ does not believe that Minn. Stat. § 144.292 controls the resolution of this issue. Under the discovery rules, a party has the right to request the inspection and copying of records relevant to the issues, and a responding party has the right to charge a reasonable fee if the responding party makes the copies. The rules do not call for differential treatment of copying costs as between nursing homes and other parties. Under the Minnesota Rules of Civil Procedure, the Administrative Law Judge would be hard pressed to conclude that $460.02 is a reasonable fee for providing two week’s worth of medical records.
Other Documents Pertaining to the Discharge. To address the Respondent’s concern that other documents pertaining to the discharge might contain data that is not public, the Administrative Law Judge issued a Protective Order on November 11, 2010. The Respondent indicated that the Protective Order would satisfy this concern.
Policies
and Procedures. In the Notice of
Discharge, the Respondent indicated that the Petitioner had “violated Facility
policy.” The Petitioner is entitled to
discover what policy was violated, as well as the factual basis for the
claim. In addition, the policies and
procedures relating to admissions, discharges, and behavior management could
lead to the discovery of admissible evidence.
The Respondent is required to provide all of the requested materials.
Written Description of the Incident or Incidents. The Petitioner requested a written description of the incident or incidents demonstrating that his behavior endangered the safety or health of other residents. The Respondent’s objection here again was that not-public data might be disclosed. The issuance of the Protective Order addresses this concern. If the Respondent chooses to identify witnesses, residents, or staff persons by initials or some method other than name, the Respondent must provide to the Petitioner a key so that he is able to determine the names of the persons involved.
K.D.S.
[1] Letter dated October 23, 2010, from William Borchers to Susan M. Voigt.
[2]
[3] Minn. R. 1400.6700, subp. 2.
[4] See, e.g., Boldt v. Sanders, 261
[5]
See, e.g., Hickman v.
[6] G.
Beck, M. Gossman & L.
[7] Oppenheimer Fund, Inc. v. Sanders, 437
[8] Boland v. Morrill, 270
[9] G.
Beck, M. Gossman & L.
[10] 2
D. Herr & R. Haydock, Minnesota Practice 9 (2d Ed. 1985), citing Detweiler Brothers v. John Graham & Co.,
412 F. Supp. 416, 422 (E.D. Wash. 1976), and County of Ramsey v. S.M.F., 298 N.W.2d 40 (
[11] 42 C.F.R. § 483.10(b)(2).