Could the Colorado State Auditor inspect unredacted nursing-home complaint and occurrence reports?

Plain-English summary

The Colorado State Auditor planned a performance audit of state oversight of nursing homes and requested unredacted complaint and occurrence reports held by the Department of Public Health and Environment. The Auditor's general access statute covered confidential agency records, but the health-facility statute declared these reports strictly confidential and limited disclosure of identifying information.

Attorney General John Suthers concluded that the Department could not give the Auditor unredacted reports. The only authorized recipients of identifying information were regulatory agencies with jurisdiction over disciplinary or licensing sanctions, and the State Auditor did not fit that description.

The opinion treated the two statutes as irreconcilable. It applied the rules that a more specific statute prevails over a general one and that a later enactment controls an older conflicting provision. The health-facility confidentiality law was both more specific and later than the Auditor's general records-access law.

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Who this opinion addressed in 2006

State Auditor staff

The opinion denied access to the unredacted complaint and occurrence reports despite the Auditor's broad statutory right to inspect confidential agency materials. It distinguished access from publication and found that the later health statute imposed the controlling limit.

Public health regulators

The Department had a mandatory duty to protect patient, resident, and health-professional identifying information. It could transmit unredacted information only to an agency with relevant disciplinary or licensing jurisdiction.

Nursing homes and affected individuals

The opinion described the reports as mandatory submissions about specified complaints and patient injuries. It concluded that identifying information remained protected during the performance audit.

Common questions

Q: Did the Auditor's general statute include confidential records? A: Yes. The opinion acknowledged that section 2-3-107(2) appeared to grant access to confidential agency records, subject to stated exceptions.

Q: Why did the nursing-home confidentiality statute win? A: It dealt specifically with these reports, prescribed exactly who could receive identifying information, and was enacted later than the general audit statute.

Q: Could the Department release any information from the reports? A: The opinion said subsection (6) allowed release of occurrence and complaint information and the Department's conclusions only without identifying the patient, resident, or health care professional.

Q: Was the State Auditor a qualifying regulatory agency? A: No. The AG concluded that the Auditor lacked jurisdiction to impose disciplinary or licensing sanctions.

Background and statutory framework

Section 2-3-107(2) gave the State Auditor broad access to records held by state departments and agencies. Section 25-1-124 made health-facility complaint and occurrence reports strictly confidential and allowed unredacted transmission only to an appropriate regulatory agency with disciplinary or licensing authority. Section 25-1-124 also provided for public release of nonidentifying information.

The opinion cited § 2-3-103 (1) for the Auditor's post-audit duties. It relied on Smith v. Zufelt and Farmers Ins. Exchange v Bill Bloom, Inc. for reconciling statutes and giving effect to all their parts before applying the specific-over-general and later-enactment rules.

Citations and references

Statutes:

• section 2-3-107(2)
• section 25-1-124
• § 2-3-103 (1)

Cases:

• Smith v. Zufelt, 880 P. 2d 1178 (Colo. 1994)
• Farmers Ins. Exchange v Bill Bloom, Inc., 961 P.2d 465 (Colo. 1998)

Source

• Landing page: https://coag.gov/attorney-general-opinions/
• Original PDF: https://coag.gov/app/uploads/2019/08/No.-06-4-The-Right-of-the-Office-of-the-State-Auditor-to-Access-Certain-Confidential-Information-Held-by-the-Health-Facilities-and-Emergency-Medical-Services-Division-of-the-Colorado-Dept....pdf

Original opinion text

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St a t e S e r v ic e s B u il d in g

STATE OF COLORADO

W . Su t h e r s

Attorney General

1525 Sherman Street - 5th Floor
Denver, Colorado 80203
Phone (303) 866-4500

DEPARTMENT OF LAW

C y n t h ia H . C o f f m a n

Chief Deputy Attorney General
Acting Solicitor General

O f f ic e o f t h f . A t t o r n e y G e n e r a l

FORMAL
OPINION

of
JOHN W. SUTHERS
Attorney General

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No. 06-04
AG Alpha HL NH AGBBU
4/11/2006

This opinion, requested by the Executive Director o f the Colorado Department o f Public Health and Environment, concerns the right o f the Office o f the State Auditor (‘'Auditor”) to access certain confidential information held by the Health Facilities and Emergency Medical Services Division o f the Colorado Department o f Public Health and Environment (‘'Department”).

QUESTIONS PRESENTED AND ANSWERS
Q u estion :
Does section 2-3-107(2), C. R. S. (2005) allow the Office o f the State Auditor access to unredacted complaint and occurrence reports made by nursing homes facilities to the Department o f Public Health and Environment? A n sw er: No. While section 2-3-107(2) can be read on its face to permit access to confidential department records, it conflicts with section 25-1-124 which does not allow the Department to release unredacted reports to any entity other than a regulatory agency having jurisdiction over disciplinary and licensing sanctions. Since section 25-1-124 is the more specific and later enacted provision, it controls.

Does section 25-1-124(4) permit the Department o f Public Health and Environment to release to the State Auditor unredacted complaint and occurrence reports made by nursing home facilities? Q u estion :

A n sw er:
No. The complaint and occurrence reports are strictly confidential. The disclosure o f identifying information in the complaints and occurrence reports is limited to regulatory agencies which have jurisdiction over disciplinary and licensing sanctions. The Auditor is not such an agency.

BACKGROUND
On December 14, 2005, the State Auditor advised the Department that she was going to conduct a performance audit o f the state's oversight o f nursing home facilities and requested access to complaints and occurrence reports that are otherwise confidential pursuant to section 25-1-124. The reports are mandatory for all licensed health care facilities and relate to certain complaints and injuries to patients. Department is required to review and investigate the reports and make a determination as to whether there was a violation o f licensing standards or a deficiency in a facility's operation. The statute further provides that: Any report submitted pursuant to subsection (2) shall be strictly confidential; except that information in any such report may be transmitted to an appropriate regulatory agency having jurisdiction for disciplinary or license sanctions. The information in such reports shall not be made public upon subpoena, search warrant, discovery proceedings, or otherwise, except as provided in subsection (6) o f this section.
§ 2 5-1-124(4) (emphasis added).
Section 25-1-124(6) allows for the release o f occurrence and complaint information and the conclusions o f the Department as a result o f its investigation, but specifically requires that it not identify the patient, resident or health care professional involved in the report. ‘‘Any person, association or corporation that willfully violates, disobeys or disregards the provisions o f the public health laws commits a criminal misdemeanor, punishable by a fine o f not more than
$1,000 and imprisonment o f not more than one year, or both.’’ In contrast, the State Auditor’s authority to access state records arises, in part, under section 2-3-107(2): The state auditor or his designated representative shall have access at all times, except as provided by sections 39-1-116, 39-4-103, and SO­ S '120, C.R.S., to all o f the books, accounts, reports (confidential or otherwise), vouchers, or other records or information in any department, institution, or agency. Nothing in this subsection (2) shall be construed as authorizing or permitting the publication o f information prohibited by law. Any officer or employee who fails or refuses to permit such access or examination for audit or who interferes in any way with such examination is guilty o f a misdemeanor and, upon conviction thereof, shall be punished by a fine o f not less than one hundred dollars nor more than one thousand dollars, or by imprisonment in the county jail for not less than one

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month nor more
imprisonment.

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twelve

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or by

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The Auditor's statute allows the Auditor to subpoena records o f departments and agencies in the same manner as a court o f law. See §2-3-107(1). This provision conflicts with the Department’s controlling statute, section 24-1-125(4), which mandates that occurrence reports not be made public in response to a subpoena unless identifying information is redacted. The statutes conflict because one allows unfettered access to confidential reports and complaints and the other restricts access to the identifying information in the occurrence reports to specific regulatory agencies. The conflict in the language o f the two statutes and the criminal penalties attendant to a violation o f either statute form the basis for the Department’s request for a formal opinion from the Attorney General.

DISCUSSION
In interpreting statutory provisions which appear to conflict, attempts shall be made to construe the provisions in a manner that w ill avoid conflict. Smith v. Zufelt, 880 P. 2d 1178 (Colo. 1994). A statute should be construed to give meaning to all o f its parts. Farmers Ins. Exchange v Bill Bloom, Inc., 961 P.2d 465 (Colo. 1998). The words and phrases in a statute should be given effect according to their plain and ordinary meaning. People v. Dist. Court, 2nd Jud. Dist, 713 P.2d 918 (Colo. 1986) (codified in § 2-4-101) If the statutes cannot be reconciled, the more specific provision prevails. See People v. Munoz, 857 P. 2d 546 (Colo. App. 1993) and Fuhrer v. Dept, o f Motor Vehicles, 592 P.2d 402 (Colo. 1976) (codified in § 24-205). In the event an irreconcilable conflict exists, the statute enacted last in time controls. Ortega .v. Industrial Commission, 628 P. 2d 511 (Colo. App. 1984) and People In The Interest ofEZL, 815 P.2d 987 (Colo. App. 1991) (codified in § 2-4-206) The duty o f the Auditor uis to conduct or cause to be conducted post audits o f all financial transactions and accounts kept by or for all departments, institutions and agencies o f the state government... to conduct performance post audi ts th ereof. . . ” § 2-3-103 (1). Pursuant to subsection (2), “The state auditor shall prepare reports and recommendations for the legislative audit com m ittee... and under the direction o f the committee, prepare an annual report. All reports shall be open to public inspection except for that portion o f any report containing recommendations, comments, and any narrative statements which is released only upon the approval o f a majority vote o f the committee.” Section 2-3-107(2) applies to all departments, institutions and agencies and was enacted in 1965. On its face it allows the Auditor or his representative access to confidential reports o f any department subject only to specific exceptions for certain tax records. This right is limited only by the caveat that “nothing in this subsection shall be construed as authorizing or permitting the publication o f information prohibited by law.” There is no guarantee in the statute that confidential records and reports received through the audit process will be kept

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confidential. The Auditor is required to keep a complete file o f copies o f all audit reports, including work papers and copies o f examinations, investigations and any other reports or materials issued by the state auditor, his staff and the (legislative audit) committee. See § 2-3103(3). The legislative audit committee has the discretion to make the work papers open to public inspection upon a majority vote o f the committee. Strikingly absent is a criminal penalty for the publication o f information prohibited by law. The only penalty in this statute for disclosure applies to individuals who willfully and knowingly disclose the contents o f any auditor's report prior to the release o f the report by a majority vote o f the committee. See § 2-3104(2). This penalty does not apply to necessary communications between the auditor’s staff and it contractors. See § 2-3-104(2). However, there is a criminal penalty for agency officers and em ployees that fail to provide requested information, or otherwise interfere with the auditing process. §2-3-107(2) Section 25-1-124 was enacted in 1997. Its stated purpose is to make it easier for people to make informed decisions in choosing a health care facility for themselves and their families by improving access to reliable, helpful and unbiased information concerning the quality o f care and the environmental safety o f a health care facility. § 24-1-125(1). In furtherance o f that goal, it requires health care facilities (nursing homes) to submit occurrence reports o f certain specified events to the Department for review and investigation. Pursuant to subsection (5), the Department shall prepare a summary o f its investigative findings. Each summary shall include the Department’s conclusions and whether there was a violation o f licensing standards, a deficiency or whether the facility acted appropriately in response to the occurrence. The basic premise o f statutory construction is that care must be taken to give effect to legislative intent. P e o p le v. D ist. C ou rt, 2 n d J u d . D ist. Supra. In order to determine legislative intent, one looks primarily to the language o f the statute. If the legislative intent is clear from the language o f the statute, one need not look to the legislative history.1 Here, the language o f the statute is very precise and legislative intent can be determined from the plain language o f the statute. Section 25-1-124(4), provides that the complaints and the occurrence reports shall be strictly confidential. The only exception to strict confidentiality is that the information in the reports may be transmitted to an appropriate regulatory agency having j urisdiction for disciplinary or license sanctions. These reports contain the names and other identifying information o f the individual patients and residents involved in the occurrence. The Department cannot produce the reports pursuant to a subpoena, search warrant, discovery proceeding, or otherwise except as provided by subsection (6) o f the statute. Subsection (6)(b)* The tapes of the hearings of the House Judiciary Committee and the Senate HEWI Committee were reviewed and were not informative with respect to the statutory conflict at issue here. There is no mention of the Auditor's access to unredacted complaints and occurrence reports. There is a reference to the fact that the reports are strictly confidential and will be disclosed in their entirety only to regulatory agencies. The tapes of the Senate HEWI hearings are largely inaudible and provide no useful information.

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states that any information produced shall not identify the patient, resident or health care professional involved in the report. The occurrence reports in their present format did not exist prior to enactment o f this statute. The legislature did not say the occurrence reports were confidential, but chose to modify and emphasize confidentiality with the word “strictly." The plain and ordinary use and meaning o f “strict’’ or “strictly” in this context is “rigid, exacting and absolute.” Black’s Law Dictionary, 7lh Ed 1999. The statute is very specific as to the circumstances and conditions under which the contents o f the reports can be disclosed. The only exception to unredacted disclosure is to regulatory agencies having jurisdiction over disciplinary and license sanctions. The State Auditor is not such an agency. The Department has a mandatory obligation to protect the identifying information. It has no apparent right or ability to monitor the use or disclosure o f unredacted complaints and occurrence reports once they are released to the Auditor or his/her designated representative. Allow ing the Auditor unfettered access to the unredacted complaints and occurrence reports would place the Department in an untenable position.

CONCLUSION
The statutes conflict and can not be reconciled absent statutory construction aides. The controlling Department statute, section 25-1-124, is more specific than the general Auditor’s statute as the former was enacted for a specific purpose and is very precise as to who has access to the identifying information in the reports. The Department’s statute was also enacted later in time. The conflict is thus resolved in favor o f the Department’s statute. Accordingly, it is my opinion that the Department cannot release the identifying information in the complaints and occurrence reports to the Auditor’s office. Issued this 1 Ith day o f April, 2006. FOR THE ATTORNEY GENERAL

CYIyTHIA H. (fOFFNm f
C hief Deputy /attorney Gene/a

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