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 no. North Dakota's 1985 agreement with the federal HHS Secretary requires the state to keep records transmitted under the Medicare program confidential. Federal-law confidentiality is incorporated into the state open records law through N.D.C.C. § 44-04-17.1(8). The CMS instructions to DHHS direct the state to forward all FOIA requests to CMS for processing rather than releasing records directly. Because the records were federal records held by the state under a confidentiality agreement, DHHS substantially complied with the open records law by declining to disclose them.
What this means for you
If you filed an EMTALA complaint and want the records
Direct your FOIA request to CMS, not to DHHS. CMS is the federal owner of the EMTALA complaint record system; DHHS is acting as a state-level intake agent under contract. The state agency cannot release records it has been instructed not to release. CMS will decide what is releasable under the federal Privacy Act and FOIA framework.
If you are a state DHHS or health department staffer
Document the federal-source confidentiality basis when you deny a request. The AG opinion uses § 44-04-17.1(8) and the 1985 state-federal agreement as the authority. Cite both the federal statute (the Medicare program / EMTALA) and the agreement requiring confidentiality. The federal Privacy Act (5 U.S.C. § 552a) is also a meaningful citation.
If you are an attorney advising hospital clients on EMTALA compliance
This opinion confirms that EMTALA complaint records held by a state agency are federally protected and not accessible through the state's open records law. Patients and complainants must go through CMS's FOIA process to obtain them. That process has its own rules and timelines.
If you are an investigative journalist
Build your records strategy around CMS, not the state. State health agencies handle intake and survey but do not own the complaint records under EMTALA. CMS controls release. State open records law generally won't reach those records.
Common questions
Q: What is EMTALA?
A: The Emergency Medical Treatment and Labor Act, 42 U.S.C. § 1395dd, requires hospitals participating in Medicare to provide stabilizing emergency treatment to anyone who comes to an emergency department. Failure to comply can result in termination from Medicare. 42 C.F.R. § 489.53(a)(1).
Q: Why does federal law override state open records here?
A: The Supremacy Clause makes federal law supreme. Section 44-04-17.1(8) of the North Dakota open records law explicitly incorporates federal confidentiality requirements. So when federal law makes a record confidential, that confidentiality applies in the state context too.
Q: What is the 1985 state-federal agreement?
A: When North Dakota enrolled in the Medicare survey-and-certification program, it signed a state agreement with the federal HHS Secretary. The agreement requires the state to adopt policies ensuring that information received from federal sources is disclosed only as the federal Act or regulations permit.
Q: Can the patient or complainant get the records?
A: They can try, through CMS's FOIA process. CMS has classifications of documents that are not releasable even to the patient or complainant in some circumstances. The opinion notes CMS instructed DHHS that certain documents should never be released, even to the patient or complainant.
Q: What does "substantially complied" mean here?
A: The North Dakota open records law standard. Substantial compliance means following the law's requirements, even if a procedural step was imperfect. The AG used "substantially complied" because DHHS denied the request based on a valid confidentiality ground; the procedural denial was effective.
Q: Could the state legislature change this?
A: Not directly. Federal law governs the confidentiality of these records, and the state agreement was negotiated with the federal government. State legislation cannot override federal Privacy Act or Medicare confidentiality requirements.
Background and statutory framework
EMTALA is part of the broader Medicare program (Social Security Act Title XVIII). To enforce EMTALA, federal HHS contracts with state agencies (here, DHHS) to receive complaints and conduct on-site surveys. The states use a federal software system, ASPEN Complaints/Incidents Tracking System (ACTS), and forward records to CMS for final processing.
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. Together, these obligations make the EMTALA complaint records federally controlled, not state-disclosable.
The state law mechanism that operationalizes this is N.D.C.C. § 44-04-17.1(8), which defines records exempt from open access to include those made confidential by federal statutes or regulations. Prior AG opinions (N.D.A.G. 81-130, 98-F-13, 2003-O-15, 2008-O-27, 2013-O-08) have all treated federal confidentiality as incorporated into North Dakota's open records framework.
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."
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."
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.
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