Can the North Dakota Department of Health and Human Services refuse to release records it sent to the federal Centers for Medicare and Medicaid Services about a hospital complaint?

Plain-English summary

Sheri McMahon filed an EMTALA complaint with the North Dakota Department of Health and Human Services about her son's treatment at Sanford Hospital. The complaint was forwarded to the federal Centers for Medicare and Medicaid Services. McMahon later asked DHHS for the records it had sent to CMS. DHHS refused, citing federal restrictions. McMahon asked the AG whether DHHS violated the open records law.

The AG said DHHS substantially complied with the open records law by withholding the requested records. The opinion relies on North Dakota's 1985 agreement with the federal HHS Secretary, which limits disclosure of information obtained under the Medicare program. It also reports DHHS's account that CMS had directed it not to release the records. Footnote 10 says the AG had not obtained a copy of that CMS directive and relied on DHHS's account, as state law requires for these opinions.

What this means for you

If you filed an EMTALA complaint and want the records

The opinion says Ms. McMahon's son made a FOIA request to CMS and received some records, but CMS deemed two attachments not releasable. DHHS also reported CMS instructions governing release of ACTS documents. The AG held that DHHS could withhold the records Ms. McMahon requested unless CMS determined they should be released.

If you are a state DHHS or health department staffer

The opinion identifies N.D.C.C. § 44-04-17.1(8) and the 1985 state-federal agreement as the confidentiality basis. It says the agreement also requires DHHS to comply with the Privacy Act, 5 U.S.C. § 552a. For requests outside information the state is authorized to release directly, footnote 25 quotes an instruction to send the request to the appropriate CMS location.

If you are an attorney advising on EMTALA complaint records held by a state agency

For the records requested here, the AG concluded that the state-federal agreement required confidentiality unless CMS determined they should be released. The opinion bases its conclusion on the facts DHHS supplied, including its account of CMS's instructions.

Common questions

Q: What is EMTALA?
A: The opinion identifies EMTALA as the Emergency Medical Treatment and Labor Act, cites 42 U.S.C. § 1395dd, and says failure to comply can result in a provider's termination from Medicare.

Q: Why does federal law override state open records here? A: The opinion quotes N.D.C.C. § 44-04-17.1(8), which includes federal statutes and applicable federal regulations among laws that may exempt a record from access. It also cites the Supremacy Clause and prior AG opinions on incorporating federal confidentiality into North Dakota's open records law.

Q: What is the 1985 state-federal agreement?
A: North Dakota executed the agreement in 1985. It requires state policies ensuring that information in its records obtained from the Secretary or a provider or supplier is disclosed only as the Social Security Act or regulations permit.

Q: Can the patient or complainant get the records?
A: The opinion says Ms. McMahon's son requested records from CMS under FOIA and received some records, while CMS deemed two attachments not releasable. It also says CMS instructed DHHS never to release certain classifications of documents, even to a patient or complainant. It does not decide whether CMS would release any particular document on a future request.

Q: What does "substantially complied" mean here?
A: The AG's conclusion uses that phrase because DHHS withheld the requested records under the state-federal agreement's confidentiality terms. The opinion does not identify a defective procedural step that DHHS had to cure.

Q: Did the AG see the CMS instruction DHHS cited?
A: No. Footnote 10 says the office had not obtained a copy of the directive. The AG relied on the facts given by DHHS under N.D.C.C. § 44-04-21.1(1).

Background and statutory framework

The opinion places EMTALA within Medicare. It says the federal HHS Secretary may make agreements with states to ensure providers comply with Medicare law, and that those agreements must include a process for handling complaints. DHHS uses the CMS system called ASPEN Complaints/Incidents Tracking System (ACTS).

The 1985 North Dakota agreement, signed when the state joined the survey-and-certification program, includes a confidentiality clause: "The State shall adopt policies and procedures to ensure that information contained in its records and obtained from the Secretary or from any provider or supplier of services will be disclosed only as provided in the Act or regulations."

The agreement also requires DHHS to comply with the federal Privacy Act of 1974, 5 U.S.C. § 552a. The AG applied the agreement to the specific ACTS records McMahon requested and held that DHHS could withhold them unless CMS determined they should be released.

N.D.C.C. § 44-04-17.1(8) includes federal statutes and applicable federal regulations among laws that may exempt records from access. The opinion cites N.D.A.G. 81-130 for the incorporation of federal confidentiality and cites other prior opinions on related issues.

Citations and references

Statutes and regulations:

• N.D.C.C. § 44-04-18 (Open records)
• N.D.C.C. § 44-04-17.1(8) (Federal-statute confidentiality incorporation)
• 42 U.S.C. § 1395dd (EMTALA)
• 5 U.S.C. § 552a (Privacy Act)

Prior AG opinions:

• N.D.A.G. 81-130, federal confidentiality incorporated into state open records law
• N.D.A.G. 98-F-13, 2003-O-15, 2008-O-27, 2013-O-08: same principle applied across contexts

Source

• Landing page: https://attorneygeneral.nd.gov/the-north-dakota-attorney-general-issued-an-opinion-to-the-department-of-health-and-human-services/
• Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2026/01/2026-O-04.pdf

Original opinion text

STATE OF NORTH DAKOTA

OFFICE OF ATTORNEY GENERAL
www.attorneygeneral.nd.gov
(701) 328-2210

Drew H. Wrigley
ATTORNEY GENERAL

OPEN RECORDS AND MEETINGS OPINION
2026-O-04

DATE ISSUED: January 30, 2026

ISSUED TO: Department of Health and Human Services

CITIZEN'S REQUEST FOR OPINION

Sheri McMahon requested an opinion from this office under N.D.C.C. § 44-04-21.1 asking whether the Department of Health and Human Services failed to provide records transmitted from the Department of Health and Human Services to the Centers for Medicare & Medicaid Services, in violation of N.D.C.C. § 44-04-18.

FACTS PRESENTED

Ms. McMahon emailed the Department of Health and Human Services (DHHS) to obtain records relating to a complaint that she had filed against Sanford Hospital. The complaint involved treatment that her adult son received and which she claimed violated the Emergency Medical Treatment and Labor Act (EMTALA). The complaint was then forwarded to the Centers for Medicare & Medicaid Services (CMS). DHHS is required to use CMS's software system, called ASPEN Complaints/Incidents Tracking System (ACTS). No action was taken on the complaint, and Ms. McMahon believed DHHS did not forward the full complaint, leading to CMS failing to act. Ms. McMahon's son submitted a Freedom of Information Act request for the complaint transmitted by DHHS to CMS, and CMS responded to the request by providing "records regarding this case and were still working with the McMahon family at the time of this open records request." However, CMS the two attachments sent by DHHS were "not releasable."

1 Email from Sheri McMahon to Dep't of Health & Hum. Servs. (Mar. 24, 2023, 2:25 PM). 2 Id. See 42 U.S.C. § 1395dd. 3 Email from Sheri McMahon to Dep't of Health & Hum. Servs. (Mar. 24, 2023, 2:25 PM). 4 Letter from Allyson M. Hicks, Assistant Att'y Gen., Gen. Couns., Pub. Health Div. - Health Facilities, Dep't of Health & Hum. Servs., to Annique M. Lockard, Assistant Att'y Gen., Off. of Att'y Gen. (Nov. 15, 2023). 5 Email from Sheri McMahon to Dep't of Health & Hum. Servs. (Mar. 24, 2023, 2:25 PM). 6 5 U.S.C. § 552. 7 Letter from Allyson M. Hicks, Assistant Att'y Gen., Gen. Couns., Pub. Health Div. - Health Facilities, Dep't of Health & Hum. Servs., to Annique M. Lockard, Assistant Att'y Gen., Off. of Att'y Gen. (Nov. 15, 2023). Accord Email from Sheri McMahon to Dep't of Health & Hum. Servs. (Mar. 24, 2023, 2:25 PM). 8 Letter from Allyson M. Hicks, Assistant Att'y Gen., Gen. Couns., Pub. Health Div. - Health Facilities, Dep't of Health & Hum. Servs., to Annique M. Lockard, Assistant Att'y Gen., Off. of Att'y Gen. (Nov. 15, 2023).

OPEN RECORDS AND MEETINGS OPINION 2026-O-04
January 30, 2026
Page 2

Unsatisfied with the DHHS records disclosed by CMS, Ms. McMahon submitted an open records request to DHHS for the records that it submitted to CMS. DHHS denied the records request on May 9, 2023, arguing that the records could not be disclosed because the records were federal records that CMS had directed DHHS not to disclose. Ms. McMahon timely requested an opinion from this Office on May 26, 2023.

ISSUE

Whether DHHS violated N.D.C.C. § 44-04-18 by failing to provide the EMTALA complaint records sent to CMS.

ANALYSIS

DHHS is a public entity that is subject to the open record law. "Except as otherwise specifically provided by law, all records of a public entity are public records, open and accessible for inspection during reasonable office hours." Laws that may exempt a record from being open "includes federal statutes, applicable federal regulations, and state statutes." Confidential records are "prohibited from being open to the public." When records are deemed confidential under federal law, "that confidentiality is . . . incorporated into North Dakota's Open Records Law." When providing an open record opinion, this office must "base the opinion on the facts given by the public entity."

9 Email from Sheri McMahon to Dep't of Health & Hum. Servs. (Mar. 24, 2023, 2:25 PM); Letter from Allyson M. Hicks, Assistant Att'y Gen., Gen. Couns., Pub. Health Div. - Health Facilities, Dep't of Health & Hum. Servs., to Annique M. Lockard, Assistant Att'y Gen., Off. of Att'y Gen. (Nov. 15, 2023). 10 Email from David A. Becker, Compliance Officer, Dep't of Health & Hum. Servs., to Sheri McMahon (May 9, 2023, 5:56 AM). Although this office has not obtained a copy of the CMS directive, "the attorney general shall base the opinion on the facts given by the public entity." N.D.C.C. § 44-04-21.1(1). 11 Letter from Sheri McMahon to Drew Wrigley, Att'y Gen., Off. of Att'y Gen. (May 23, 2023). See N.D.C.C. § 44-04-21.1(1). 12 N.D.C.C. § 44-04-17.1(13)(a); N.D.C.C. ch. 50-06. 13 N.D.C.C. § 44-04-18(1). 14 N.D.C.C. § 44-04-17.1(8). Additionally, the laws of the United States made pursuant to the Constitution "shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const., art. VI, cl. 2. 15 N.D.C.C. § 44-04-17.1(3). 16 N.D.A.G. 81-130. Accord N.D.A.G. 2013-O-08; N.D.A.G. 2008-O-27; N.D.A.G. 98-F-13. See also N.D.A.G. 2003-O-15 (analyzing impact of federal law on whether records were exempt or confidential to justify executive session). 17 N.D.C.C. § 44-04-21.1(1).

OPEN RECORDS AND MEETINGS OPINION 2026-O-04
January 30, 2026
Page 3

The EMTALA was created as part of the larger Medicare program, and a failure to comply with it can result in a provider being terminated from Medicare. To implement the Medicare program, the United States Secretary of Health and Human Services is authorized to make agreements with States to ensure that providers comply with the Medicare statutes and regulations. The agreement must provide a process for the state to receive and address complaints. North Dakota executed its agreement in 1985. That agreement says, "[t]he State shall adopt policies and procedures to ensure that information contained in its records and obtained from the Secretary or from any provider or supplier of services will be disclosed only as provided in the Act or regulations"

The agreement also explicitly requires DHHS to comply with The Privacy Act of 1974, 5 U.S.C.
§ 552a, which governs the conditions under which federal records on individuals may be disclosed. CMS has instructed DHHS to never release certain classifications of documents, even if the records are requested by the patient or by a complainant. These instructions apply to ACTS documents, which were the records that Ms. McMahon has requested, and DHHS has been directed to forward all records to CMS for final processing of freedom of information requests.

Ms. McMahon requested records that were filed with DHHS pursuant to the EMTALA. Those records are subject to the agreement that DHHS has signed with the U.S. Department of Health and Human Services that requires the records to remain confidential unless CMS determines that the records should be released. It is my opinion that DHHS complied with N.D.C.C. § 44-04-18 by not disclosing confidential information.

18 Social Security Act, 42 U.S.C. §§ 1395-1395lll.
19 42 C.F.R. § 489.53(a)(1).
20 42 U.S.C. § 1395aa(a).
21 Id.
22 Letter from Allyson M. Hicks, Assistant Att'y Gen., Gen. Couns., Pub. Health Div. - Health Facilities, Dep't of Health & Hum. Servs., to Annique M. Lockard, Assistant Att'y Gen., Off. of Att'y Gen. (Nov. 15, 2023). 23 Agreement Between The Sec'y of Health & Hum. Servs. & The State of N.D., art. XIII, §A (Mar. 13, 1985). Under the agreement, "'Act' means Title XVIII of the Social Security Act, as amended." Agreement Between The Sec'y of Health & Hum. Servs. & The State of N.D., art. I,
§A(2) (Mar. 13, 1985).
24 Agreement Between The Sec'y of Health & Hum. Servs. & The State of N.D., art. XIII, §B, art. XV, §A(11) (Mar. 13, 1985). 25 Exhibit 3 to Letter from Allyson M. Hicks, Assistant Att'y Gen., Gen. Couns., Pub. Health Div. - Health Facilities, Dep't of Health & Hum. Servs, to Annique M. Lockard, Assistant Att'y Gen., Off. of Att'y Gen. (Nov. 15, 2023); ("Requests for information that fall outside of the information that the states have been authorized to release directly should be sent to the appropriate CMS location."). 26 Letter from Allyson M. Hicks, Assistant Att'y Gen., Gen. Couns., Pub. Health Div. - Health Facilities, Dep't of Health & Hum. Servs, to Annique M. Lockard, Assistant Att'y Gen., Off. of Att'y Gen. (Nov. 15, 2023).

OPEN RECORDS AND MEETINGS OPINION 2026-O-04
January 30, 2026
Page 4

CONCLUSIONS

DHHS substantially complied with N.D.C.C. § 44-04-18 when it denied Ms. McMahon's request for the records that DHHS transmitted to CMS relating to the EMTALA complaint, as North Dakota's agreement with the United States Department of Health and Human Services prohibits disclosure of the requested records.

Drew H. Wrigley
Attorney General

cc: Sheri McMahon