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KASPER REPORT NEEDS COURT ORDER 4 PHYSICIANS

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Fortune Williams 13763 Campus Drive Oakland CA 94605 510-635-8011 Plaintiff v. Civil Case No. Kentucky Board of Medical Licensure Defendant MOTION FOR A COURT ORDER FOR KASPER REPORT The plaintiff requests a court order for the use of the KASPER REPORT in any Kentucky Board of Medical licensure for the following reasons. The Kentucky Office of the Attorney General (OAG ). OAG 05-007 July 8, 2005 Subject: Disclosure of confidential data from KASPER reports Requested by: C. William Schmidt, Executive Director Kentucky Board of Medical Licensure Written by: James M. Herrick Assistant Attorney General Syllabus: KASPER data cannot be informally disclosed by the Board of Medical Licensure to a licensee under investigation or charged with misconduct, nor provided through formal dis-covery, nor introduced into evidence in a Board of Medical Licensure hearing, without a court order. Statutes construed: KRS 218A.202(8), KRS 218A.202(6)(e), KRS 13B.090(3) OAG cited: 03-ORD-227 Opinion of the Attorney General To assist in detecting the illegal or improper use of prescription drugs, KRS 218A.202(1) directs the Cabinet for Health Services to create an electronic system for monitoring the dispensing of controlled substances, known as the Kentucky All Schedules Prescription Electronic Reporting (“KASPER”) system. Physicians, pharmacists, and other persons licensed to dispense prescription drugs are required to provide the Cabinet with information about controlled substances, to be entered into the KASPER system. This information includes a patient identifier, the drug dispensed, date of dispensing, quantity dispensed, prescriber, and dispenser. KRS 218A.202(4). The Cabinet is authorized to provide KASPER data to certain identified persons and entities, including “[a] designated representative of a board respon-sible for the licensure, regulation, or discipline of practitioners, pharmacists, or other person who is authorized to prescribe, administer, or dispense controlled substances and who is involved in a bona fide specific investigation involving a designated person.” KRS 218A.202(6)(a). The Kentucky Board of Medical Licensure is one such entity, which often uses KASPER reports to detect irregularities in the prescribing practices of physicians who are under investigation for improperly dispensing controlled substances. Along with the KASPER report itself, the Board usually requests some analysis and evaluation of the data by the Cabinet for Health Services. The Board’s investigator then normally obtains some patient charts from the physician under investigation, and provides those charts to a specialist medical consultant along with the KASPER report and other materials pertaining to the investigation. The consultant uses the KASPER report and other informa-tion to learn information about patients’ prescription histories in order to help the Board’s Inquiry Panel determine whether a complaint should be filed against the physician. If a complaint is filed, an administrative hearing is conducted under the provisions of KRS Chapter 13B. C. William Schmidt, the Executive Director of the Board, poses the follow-ing four-part inquiry: 1. May the agency lawfully provide a copy of the KASPER report to the licensee and/or their attorney, for use in preparing their response to the investigation? 2. May the agency lawfully provide a copy of the KASPER report to the licensee and/or their attorney, following the issuance of the formal charge against their license, as part of the agen-cy’s normal informal discovery process? 3. May the agency lawfully provide a copy of the KASPER report to the licensee and/or their attorney, in response to a dis-covery order issued by an administrative hearing officer as-signed by the agency to conduct the evidentiary proceedings on the agency’s formal charge(s)? 4. May either party, or the assigned administrative hearing officer, to the agency’s evidentiary proceedings formally admit a KASPER report or a copy of that report into the evidentiary record to be considered in finally resolving the formal charge(s) against the licensee? For the following reasons, we believe all four questions must be answered in the negative. Investigation and informal discovery KRS 218A.202(8) provides that “[a] person who receives data or any report of the system from the cabinet shall not provide it to any other person or entity except by an order of a court of competent jurisdiction,” with certain enumerated exceptions applying only to peace officers and the Department for Medicaid Services. Subsection (12) adds that “[k]nowing disclosure of transmitted data to a person not authorized by subsection (6) to subsection (8) of this section or authorized by KRS 315.121 [a statute pertaining to the Kentucky Board of Phar-macy], or obtaining information under this section not relating to a bona fide specific investigation, shall be a Class D felony.” We have previously characterized the provisions of KRS 218A.202 as “absolute prohibitions on disclosure.” 03-ORD-227. The language in these subsections admits of no exceptions other than the ones explicitly made. Al-though disclosure of the KASPER report to a physician under investigation might well be useful for ensuring the accuracy of the complaints or to provide a maximum of fairness and consideration to the medical licensee, KRS 218A.202 does not permit the Board to provide it to the physician or his attorney without a court order. This is true whether at a preliminary investigative stage in the proceeding or in the context of an informal discovery process. Discovery ordered by hearing officer Nor can a discovery order issued by an administrative hearing officer lawfully require the Board to disclose the KASPER data to the physician in-volved in the hearing process. We are aware of no cases holding that an admin-istrative agency acting in a quasi-judicial capacity can ever be considered a “court of competent jurisdiction” for purposes of a Kentucky statute. Since this phrase is not specifically defined in the KASPER statute, it must be given its “common and approved” meaning. KRS 446.080(4). The term “court” does not typically include an administrative agency. Moreover, an administrative body has no “competent jurisdiction” other than what is conferred upon it by statute. Dept. for Nat. Res. & Environmental Protection v. Stearns Coal & Lumber Co., 563 S.W.2d 471 (Ky. 1978). KRS 13B.090(3) might, at first impression, be construed as authorizing a hearing officer to issue a discovery order requiring that a medical licensee be permitted to obtain copies of KASPER reports. That provision states as follows: Any party shall have the right to inspect, at least five (5) days prior to the hearing, a list of all witnesses every other party expects to call at the hearing, and the available documentary or tangible evi-dence relating to an administrative hearing either in person or by counsel. Copies of documentary evidence may be obtained upon the payment of a fee, except documents protected from disclosure by state or federal law. Nothing in this section shall be construed as giving a party the right to examine or copy the personal notes, observations, or conclusions of the agency staff, unless exculpatory in nature, nor shall it be construed as allowing access to the work product of counsel for the agency. Conditions for examining and copying agency records, fees to be charged, and other matters per-taining to access to these records shall be governed by KRS 61.870 to 61.884. To the extent required by due process, the hearing offi-cer may order the inspection of any records excluded from the application of KRS 61.870 to 61.884 under KRS 61.878 that relate to an act, transaction, or event that is a subject of the hearing, and may order their inclusion in the record under seal. (Emphasis added.) KRS 61.878 contains a lengthy list of exemptions from public disclosure under the Kentucky Open Records Act, one of which applies to “[p]ublic records or information the disclosure of which is prohibited or re-stricted or otherwise made confidential by enactment of the General Assembly.” KRS 61.878(1)(l). Theoretically, therefore, the last sentence of KRS 13B.090(3) might appear to enable a hearing officer to order discovery of KASPER reports and to place the discovery documents under seal. Certain difficulties, however, are apparent with this interpretation. The first is that subsection (3) expressly excludes “documents protected from disclo-sure by state or federal law” from the documents of which copies may be ob-tained. Under the principle that specific statutory provisions control over gener-al ones, Land v. Newsome, 614 S.W.2d 948 (Ky. 1981), this removes KRS 61.878(1)(l) (information made confidential by statute) from the categories of Open Records-exempt documents that KRS 13B.090(3) would make subject to disclosure upon order of a hearing officer. Secondly, the subject of KRS 13B.090(3) is evidence, not discovery. The Kentucky courts have not recognized a constitutional or statutory right to pretri-al discovery in administrative proceedings. See generally Kentucky Lottery Corp. v. Stewart, 41 S.W.3d 860, 862 (Ky. App. 2001) (noting stipulation by parties in reliance on Starr v. Commissioner of Internal Revenue, 226 F.2d 721 (7th Cir. 1955), cert. denied, 350 U.S. 993 (1956)). KRS 13B.090(3) gives each party the right to inspect the opposing party’s witness list and evidence to be used at the hearing. This subsection should not be taken as granting the parties a statutory right to conduct pretrial discovery of documents above and beyond the opponent’s evidence to be used at the hearing. Discovery is, of course, a matter within the discretion of the hearing officer. KRS 13B.080(3). Subsection (3) of KRS 13B.090, however, because it deals only with access to the opposing party’s evidence to be used at the hearing, is not a warrant for hearing officers to order pretrial discovery of documents made confidential by statute which are not intended for use as exhibits. Due process may require that a party “know and have an opportunity to challenge the evidence against him,” Carter v. Western Reserve Psychiatric Habilitation Center, 767 F.2d 270, 273 (6th Cir. 1985), but it does not require that a party be allowed broad-ranging pretrial discovery. Accordingly, the reference to due process in KRS 13B.090(3) does not authorize inspection by a medical licensee of statutorily confidential documents such as the KASPER data unless they are intended by the opposing party as evidence to be introduced into the record. Evidence in administrative hearing There is no express statutory authorization for the introduction of a KASPER report into evidence in a proceeding before the Board of Medical Licensure. Whereas KRS 218A.202(8)(c) allows the Department for Medicaid Services to submit the data as evidence in an administrative hearing, there is no such exception made for the Board of Medical Licensure. According to the rule expressio unius est exclusio alterius, the specific mention of one agency by the legislature indicates an intent to exclude any others. Burgin v. Forbes, 293 Ky. 456, 169 S.W.2d 321 (1943). We cannot merely conclude that the General Assembly unintentionally overlooked the Board of Medical Licensure when it amended the statute, because the Board is mentioned by name in subsection (6)(f) of the same statute, which was enacted during the same (2004) legislative session as subsection (8)(c). The fact that the General Assembly deemed it necessary to make a special exception for Medicaid hearings indicates that administrative hearings, in gener-al, were not contemplated as a permissible forum for disclosure of KASPER data. We must therefore conclude that data from the KASPER system cannot, without a court order, be used as either documentary or testimonial evidence in an administrative hearing before the Board of Medical Licensure. Any drug transactions at issue in the hearing must be proved from other sources. Practical considerations We note that the KASPER statute, while it presents some obstacles to disclosure of data, does not absolutely preclude the use and transmittal of the information where necessary. If disclosure of the KASPER report by the Board to the licensed physician is actually essential for some reason, it should not be unduly difficult for one or both parties to obtain the court order contemplated by KRS 218A.202(8). After a court order is obtained, if the limitations of the disclosure are not clearly spelled out in the order, the hearing officer should then follow the dictates of KRS 311.591(9) and “take whatever measures are necessary to protect the privacy interests of individuals other than the charged physician upon a showing that evidence is to be introduced, the public disclo-sure of which would constitute a clear invasion of privacy.” These measures could include imposing restrictions upon the physician’s use of the information outside the hearing, as well as sealing portions of the evidentiary record pursu-ant to KRS 13B.090(3). It is also conceivable that the Board could avoid the problem with KRS 218A.202 in many cases by conducting its investigations somewhat differently. In Thacker v. Com., 80 S.W.2d 451 (Ky. App. 2002), a police detective investigated a drug offender by first obtaining the KASPER report, then contacting the listed pharmacies to verify that the prescriptions were dispensed, and finally contact-ing the listed physicians to ask whether they had been aware of the other pre-scriptions. The Kentucky Court of Appeals held that that the detective’s use of the KASPER information “to direct his investigation” did not amount to a disclo-sure under the statute: The detective ... showed the report to no one, including the grand jury, nor did he tell anyone what the report contained. His asking the doctors who prescribed the overlapping medications whether Thacker told them of other prescriptions and whether they would have prescribed differently if he had told them disclosed nothing to the doctors. Generally, of course, a question is not a statement. The basis for the detective’s questions need not have been and was not disclosed. On the contrary, the disclosures occurred in the op-posite direction: the doctors gave information to the detective. It was that information, not the KASPER data, that the detective then presented to the grand jury. The detective’s use of Thacker’s KASPER report to elicit that information efficiently did not violate KRS 218A.202(6). Id. at 456. In other words, there is no “fruit of the poisonous tree” doctrine associated with KRS 218A.202, which would make the use of the KASPER infor-mation as a starting point for seeking confirming evidence into the equivalent of a “disclosure.” Rather, as long as the information on the KASPER report is merely used as a basis for asking questions, it is not a violation of law to elicit the same information from witnesses. Although this course of action might require additional time and effort during the investigative stages, many complications of using a confidential, nondisclosable record as a central element of an investigation and complaint could be eliminated if this approach were followed. Conclusion It is our opinion that KRS 218A.202(8) does not permit the disclosure of KASPER data by the Board of Medical Licensure to the investigated or charged physician or his attorney, or its introduction into evidence in a Board of Medical Licensure hearing, in the absence of a court order. A discovery order from an administrative hearing officer is not adequate for this purpose, as a quasi-judicial administrative agency is not a “court of competent jurisdiction.” Gregory D. Stumbo Attorney General James M. Herrick Assistant Attorney G

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MEDICAL LICENSURE BOARD MISCONDUCT