Could a Kentucky Medicaid formulary subcommittee meet in private to discuss and vote on drug recommendations?

Plain-English summary

A Kentucky senator asked whether the Medicaid Formulary Subcommittee could hold a closed meeting before its public meeting to discuss and vote on which drugs to recommend for the Medicaid formulary. The Attorney General said in 1992 that the standing subcommittee was a public agency under the Open Meetings Act, even though the Medicaid commissioner made the final formulary decision. No cited statutory exception covered those discussions. The AG found no state or federal law requiring privacy, so the described closed sessions were improper.

Currency note

This opinion was issued in 1992. 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.

Historical summary

Formulary subcommittee members

The AG treated the subcommittee of a statutory advisory council as a public agency under KRS 61.805(2). Its advisory role did not remove it from the Act's public-agency definition. The opinion found that formulary approval discussions did not fall within the closed-meeting exceptions it reviewed in KRS 61.810.

Legislators and members of the public

The AG said the meetings had to be public unless state or federal law specifically required a closed session. It found no such authority in the request or its own review. The opinion addressed the described formulary discussions and recommendation votes.

Common questions

Was the Medicaid Formulary Subcommittee covered by Kentucky’s Open Meetings Act?

The AG said yes. It was a subcommittee of the Advisory Council for Medical Assistance and fit the Act’s definition of a public agency.

Could it meet privately because the commissioner made the final decision?

No. The AG classified the subcommittee itself as a public agency despite the commissioner’s final authority.

Could drug approval discussions qualify for a closed session?

The AG found no applicable exception on the facts presented. It said a law specifically requiring confidentiality could change that analysis, but identified none for these discussions.

Background and statutory framework

KRS 205.540 established the advisory council. KRS 61.805(2) covered committees and subcommittees of public agencies. The AG relied on a Kentucky Supreme Court decision construing the public-agency definition, then checked KRS 61.810’s closed-session exceptions. It concluded that the described private formulary meetings were improper.

Citations and references

• KRS 205.540: statutory basis for the advisory council.
• KRS 61.805(2): public-agency definition applied to the subcommittee.
• KRS 61.810: closed-session exceptions considered by the AG.
• Lexington Herald-Leader Company v. University of Kentucky Presidential Search Committee, Ky., 732 S.W.2d 884 (1987): cited for the scope of public agencies under the Act.

Source

• Landing page: https://kdla.access.preservica.com/uncategorized/IO_693857d5-74fe-4301-ba87-fe58d137818c/
• Original PDF: https://kdla.access.preservica.com/download/file/IO_693857d5-74fe-4301-ba87-fe58d137818c

Original opinion text

OAG 92-4
January 21, 1992

Senator Richard L. Roeding
Legislative Research Commission
700 Capitol Avenue
Frankfort, KY 40601
Dear Senator Roeding:
You have requested an opinion from this Office on a question arising under the Open Meetings Act, KRS 61.805, et seq. Specifically, you ask whether the Formulary Subcommittee of the Advisory Council for Medical Assistance may properly conduct closed meetings immediately before their regular public meetings to discuss and vote on the approval of drugs for the Medicaid Formulary. KRS 205.540 provides for the establishment of the Advisory Council of Medical Assistance, consisting of seventeen members, to advise the Cabinet for Human Resources on issues relating to health and medical care services. Pursuant to KRS 205.540(4), the Council must meet at least once every three months, and may hold “such other special or regular meetings as may be desired.” The Formulary Subcommittee is a standing committee which has existed since the inception of the Council. Its members are appointed by the Council’s chairperson and its purpose is to recommend to the Council and the Cabinet what drugs should be included on the Medicaid Formulary. Although the subcommittee votes on whether to recommend a drug for inclusion, the final decision rests with the Commissioner for Medicaid Services. You indicate that it has been the practice of the Formulary Subcommittee to hold a closed meeting prior to its regular public meeting. You question the propriety of these closed meetings. Based upon the facts you have presented, and for the reasons set forth below, we concluded that such meetings are improper under the Open Meetings act. KRS 61.805(2) defines a public agency as:
[A]ny state legislative, executive, administrative or advisory board, commission, committee, policy making board of an institution of

Senator Richard L. Roeding
Page 2
OAG 92-4
education or other state agency which is created by or pursuant to statute or executive order (other than judicial or quasi-judicial bodies); any county, city, school district, special purpose district boards, public commissions, councils, offices or other municipal corporation or political subdivision of the state; any committee, ad hoc committee, subcommittee, subagency or advisory body of a public agency which is created by or pursuant to statute, executive order, local ordinance or resolution or other legislative act . . . : Prior to 1987, this provision was interpreted to exclude advisory bodies which lacked power to affect policy or make appointments. See, eg., OAG 82-331. IN that year, the Kentucky Supreme Court issued an opinion in which it held that a public agency is an agency which is created by statute, executive order, local ordinance or resolution or other legislative act, or any committee, ad hoc committee, subagency or advisory body of said public agency. Lexington Herald-Leader Company v. University of Kentucky Presidential Search Committee, Ky., 732 S.W.2d 884 (1987). The Formulary Subcommittee falls squarely within the parameters of this definition, and is a public agency within the meaning of KRS 61.805(2). The second issue which confronts us is whether the matters discussed by the Subcommittee in its closed session fall within one of the recognized exceptions to the Open Meetings Act found at KRS 61.810. A review of these exceptions demonstrates that discussions pertaining to the approval of drugs for the Medicaid Formulary do not fall within any of these exceptions. Unless federal or state law specifically require that the meetings be conducted in closed session, bringing them under the exception found at KRS 61.810(1), they must be conducted publicly. We are unable to locate any authority, state or federal, requiring these discussions to be held privately, and you cite no such authority. Absent such authority, we must conclude that these closed sessions are improper under KRS 61.810. Sincerely, CHRIS GORMAN ATTORNEY GENERAL

Amye B. Majors
Assistant Attorney General
ABM/par