Should Georgians have the right to see how state government contractors plan to rectify contract violations?
Not if the contractor in question says no. That’s how the Georgia Department of Community Health sees it, anyway.
In light of concerns in several states about the nation’s biggest non-emergency transport contractor, Georgia-based LogistiCare, the AJC set out to review its work here and determine how rigorously DCH regulates the company. As our research progressed, we wanted to know why sick and vulnerable Medicaid patients who rely on the state service to get to doctor appointments have been left stranded, waiting for rides, or injured after not being properly strapped in. At least two patients have died since 2015 after avoidable accidents involving wheelchairs, the AJC found.
Among DCH records the AJC sought were “corrective action plans” that LogistiCare submits to the agency after being cited for violations, such as patients being picked up late, or not at all, by subcontracting van companies who transport the patients.
Our efforts to review those plans became a game of keep away: The AJC requested the public records, the Department of Community Health conferred with LogistiCare, which declared the records confidential trade secrets, and DCH withheld the records.
We started out requesting a variety of what seemed like basic records related to the ongoing contract: complaints by passengers or others, any fines assessed, customer satisfaction surveys, bid documents, vehicle inspections, and contracts between LogistiCare and transportation providers who do the actual driving.
At times, it seemed these requests had DCH flummoxed. Obtaining records took months of waiting, back-and-forth, more waiting, and more back-and-forth.
The first batch of complaint records came to us as raw reports in PDF files, documenting complaints ranging from patients who were seriously injured to patients inconvenienced by service issues. Frequently, we found pages missing. More often than not, the missing pages contained the complaint narrative. So we asked DCH for those, and waited again.
We requested corrective action plans in late August. On Sept. 13, the department asked us how far back we wanted them. We said back to 2012. Several times, the department gave us specific dates to expect them. Next week. Later this week. Next week. And so on.
Then on Nov. 3, two months after we made our request, an attorney for DHC told us that “LogistiCare has asserted that its corrective action plans are proprietary. As such, DCH will not produce records responsive to your request …”
Georgia’s open records law allows private companies to block release of documents by attaching affidavits to them declaring that making the records public would give competitors an edge. LogistiCare also made this declaration to withhold its contracts with subcontractors.
When DCH told us records had been denied as trade secrets, we asked for the required affidavits. They had fresh dates on them. LogistiCare’s Georgia general manager, Casey Tillman, wrote in the affidavit for the corrective plans that they shouldn’t be released because they contain the identities of subcontractors; descriptions of LogistiCare’s policies and procedures for handling complaints; and trip dates and trip numbers that are the equivalent of medical record numbers and could be used to identify patients, violating their right to privacy.
The thing is, by that point DCH, apparently by mistake, had already given us five corrective action plans wedged among other records. Some pages were partially redacted, some fully redacted and some were blurry, but legible enough. Generated by LogistiCare, the forms are brief, and the corrective actions are usually one to four paragraphs. In them, the company pledges to do better in the future, saying it will admonish subcontractors or staffers to follow policies and procedures, will secure a new contract with a van company to avoid missing pickups, or will resolve technical problems or staffing issues.
Couldn’t proprietary information and patient identifiers be redacted, in the interest of providing records that speak to patient safety and a service that costs taxpayers tens of millions of dollars per year?
Here’s a portion of one of the corrective action plans we got. See what you think:
There’s another way we could have given readers more information about how DCH regulates or doesn’t regulate the Medicaid transport system. The department could have sat down with us and answered questions. DCH Commissioner Frank Berry initially agreed to an interview, but then backed out and wouldn’t make anyone else available.
DCH has a history of taking its time in releasing records about private companies that get tens of millions of taxpayer dollars. Consider the AJC’s experience in 2014, trying to obtain records concerning a politically connected insurance company. Here’s that post: http://investigations.blog.ajc.com/2014/12/02/when-open-records-act-doesnt-lead-to-open-records/