August 15, 2016
U.S. Department of Health and Human Services
200 Independence Avenue, S.W.
Washington, D.C. 20201
Re: Freedom of Information Regulations (HHS-OS-2016-0010)
Dear Secretary Burwell,
The Academy of Nutrition and Dietetics (the "Academy") appreciates the opportunity to submit these comments to the Department of Health and Human Services (HHS) regarding its proposed rule "Freedom of Information Regulations" (HHS-OS-2016-0010). Representing more than 100,000 registered dietitian nutritionists (RDNs),1 nutrition and dietetic technicians, registered (NDTRs), and advanced-degree nutritionists, the Academy is the largest association of food and nutrition professionals in the United States and is committed to improving the nation's health through food and nutrition across the lifecycle. Every day we work with Americans in all walks of life — from prenatal care through end of life care — providing nutrition care services and conducting nutrition research.
The Academy is pleased that HHS is revising its regulations related to Freedom of Information Act (FOIA) requests in part
- "to make the FOIA process easier for the public to navigate,
- to update HHS's fee schedule, and
- to make provisions clearer."
We also hope these proposed revisions will improve regulatory compliance and the diligence and alacrity with which HHS responds to FOIA requests.
A. The Academy's Experience Making a FOIA Request to HHS
The Academy made a FOIA request for "a list of all Medicare provider types=71, Registered Dietitian/Nutrition Professional . . . (active and inactive)" that was received by HHS on November 27, 2013 (Control Number 112920137006 and PIN KY2L). As of the date of these comments, the Academy has yet to receive the requested information from HHS. Instead of a substantive response, the Academy received an October 8, 2014 email from a Government Information Specialist at HHS's Freedom of Information Group asking if the Academy was still interested in pursuing its request of eleven months prior. In the almost two years since that last communication, the Academy has received nothing pursuant to our request.
In addition, instead of responding to the Academy's formal request, the same specialist simply suggested examining a "light version" of the request in HHS's publicly available information that lacked the desired information. Aside from the failure to follow its own process over the past three years, HHS's suggestion is inherently unsatisfactory.
Specifically, the Academy is concerned that publicly available information is missing those RDNs who have been deactivated as they don't bill using the CMS1500 form, but rather the UB04 form (hospital billing). This concern about the existing publicly available data was noted in the rationale for the request initially submitted to HHS. To date, there has been no effort on the part of HHS to provide an estimated date of completion or any indication of any potentially complicating factors that might cause a delay in HHS's response. It has been an additional two years since the Academy confirmed its desire to obtain the requested information from HHS without any additional response. In addition, the confirmation of receipt of this FOIA request sent to the Academy did not include a tracking number for the request. Without this requisite tracking number, the Academy was caught in a "catch-22" as a tracking number is needed within the FOIA system to obtain information on the status of a request.
The Academy's experience with our FOIA request to HHS over the past three years has thus been frustrating and disheartening; HHS's delay and lack of communication continues to violate existing HHS policies and regulations, raising questions as to its regard for the prescribed FOIA process.
Because the Academy seeks a collaborative relationship with HHS on various issues of shared concern, we have avoided litigation that would force the agency to act, and we hope that these proposed revisions will ameliorate the worst violations. In addition, we hope that this proposed rule will enable HHS to hold those in the agency responsible for its flawed response to our request. We seek a meeting with HHS to discuss how to ensure other associations, individuals, or corporations can avoid experiencing the same flawed FOIA process going forward, and how to ensure the Academy's FOIA request will be processed pursuant to HHS's regulations and best practices.
B. HHS's Obligation to Respond with Diligence, Acknowledgment, and Urgency
The Academy recognizes that HHS and other federal agencies continue to be asked to do more with less; budgets are tightened while FOIA requests increase. Implicitly referencing these constraints in its response sent one year after the Academy's request, HHS responded by asserting that, "because of the increasing number of requests received by the Centers for Medicare & Medicaid Services (CMS), we found it necessary to adopt the ruling in the case of Open America v. Watergate Special Prosecution Force, 547 F.2d 605 (D.C. Cir. 1976) and exercise due diligence by following a first-in, first-out FOIA processing." In Open America, the court held, "We believe also that Congress wished to reserve the role of the courts for two occasions, when the agency was not showing due diligence in processing plaintiff's individual request or was lax overall in meeting its obligations under the Act with all available resources."2 In the final rule, the Academy encourages HHS to better detail its understanding of due diligence and the extent to which the lack of due diligence in processing a relatively simple request is manifested when the request takes nearly three years. As Open America noted, agencies are tasked with complying with all lawful demands "in as short a time as possible."3
To improve its handling of FOIA requests, HHS must acknowledge whether a party's FOIA request has been placed in a "complex processing queue" or remains a "simple processing request." The Academy is pleased that the proposed rule suggests HHS "will notify [parties] of potential complicating factors in our acknowledgement letter or email, or in subsequent communications regarding your request." The Academy supports the proposed rule's provisions in § 5.25(e) and § 5.25(f) clarifying the fact that HHS will notify requesting parties of "potential complicating factors" that would preclude it from fulfilling the request within 20 days; however, the Academy never received any notification of potential complicating factors for its FOIA request made nearly three years ago. We also support the proposed rule's provision in § 5.25(h) that HHS will ask the requesting party if it wishes to modify its request if HHS needs to extend the deadline by 10 days and that HHS will offer an estimated date for a response to the request if the requesting party does not wish to modify the request. Unfortunately, the Academy also notes it has received no such offer to modify the request or any estimated date for a response to the request in the nearly three years since it was made.
To avoid a protracted delay in the agency's response, the Academy had the option to request expedited processing and justify the request therefor. This requirement is consistent with the court's holding in Open America that parties making FOIA requests will be required to show a "genuine need and reason for urgency" if they file suit against the agency.4 A requesting party should not need to assert urgency, however, simply as a matter of course merely to avoid a nearly three year wait for what should be a relatively simple FOIA request, as the Academy has since October 2013. Congress, in passing amendments to FOIA, made clear that "excessive delay by the agency in its response is often tantamount to denial[, and that i]t is the intent of this bill that the affected agencies be required to respond to inquiries and administrative appeals within specific time limits." H.Rep.No.93-876, 93d Cong., 2d Sess. (1974), U.S.Code Cong. & Ad.News, p. 6271.
It is unclear what amount of time might constitute "excessive delay," but the court in Open America noted, "Of course, some would be content to have their curiosity satisfied in six to nine months, but surely others with a desire equal to the plaintiffs here would not have the financial resources to hire a lawyer and go to court, which would create a further invidious and unintended distinction."5 Unfortunately, HHS's existing process invites delay, perversely inviting the very litigation that creates the "invidious and unintended distinction" and "pernicious results" the court in Open America specifically intended to avoid. The Academy appreciates HHS's recognition that its FOIA process should be improved in these and other respects.
The Academy sincerely appreciates the opportunity to offer comments on the proposed changes to HHS's process for responding for FOIA requests, and we would welcome the opportunity to meet with HHS to discuss the above issues with CMS in the near future. Please contact either Jeanne Blankenship by telephone at 312-899-1730 or by email at firstname.lastname@example.org or Pepin Tuma by telephone at 202-775-8277 ext. 6001 or by email at email@example.com with any questions or requests for additional information.
Jeanne Blankenship, MS, RDN
Policy Initiatives and Advocacy
Academy of Nutrition and Dietetics
Pepin Andrew Tuma, Esq.
Government & Regulatory Affairs
Academy of Nutrition and Dietetics
1 The Academy recently approved the optional use of the credential "registered dietitian nutritionist (RDN)" by "registered dietitians (RDs)" to more accurately convey who they are and what they do as the nation's food and nutrition experts. The RD and RDN credentials have identical meanings and legal trademark definitions.
2 Open America v. Watergate Special Prosecution Force, 547 F.2d 605 (D.C. Cir. 1976).