2023-04858. Freedom of Information Act Predisclosure Notice

AGENCY:

Health Resources and Services Administration (HRSA), Department of Health and Human Services (HHS).

ACTION:

Request for comment.

SUMMARY:

This notice informs submitters who reported COVID-19 data in 2020 for the High-Impact Area Distribution that HRSA received a Freedom of Information Act (FOIA) request for data reported to HHS that was used in determining COVID-19 High-Impact Area Distribution payments under the Provider Relief Fund. Specifically, the request seeks certain information pertaining to providers who did not receive COVID-19 High-Impact Area Distribution payments. This notice seeks input from these providers so that HRSA can respond to the FOIA request.

DATES:

Comments must be received on or before March 23, 2023.

ADDRESSES:

Comments should be submitted to the HRSA FOIA Office via email at [e-mail].

FOR FURTHER INFORMATION CONTACT:

Brian A. May, FOIA Officer, 5600 Fishers Lane, Room 13N112, Rockville, Maryland 20857; 301-443-1467, [e-mail].

SUPPLEMENTARY INFORMATION:

The FOIA, 5 U.S.C. 552, compels federal agencies to release records in its possession, unless the agency reasonably foresees that disclosure would harm an interested protected by one (or more) of the nine exemptions or disclosure is prohibited by law. FOIA also requires that agencies provide FOIA requesters with reasonably segregated portions of records, which means that agencies must release any portion of the records where an exemption does not apply, unless technically unable to reasonably do so.

Explanation of the Action

The HRSA FOIA Office received a FOIA request for data reported to HHS in 2020 that was used in determining COVID-19 High-Impact Area Distribution payments under the Provider Relief Fund. HHS made the first round of COVID-19 High Impact Area Distribution payments to 395 hospitals that reported they had 100 or more COVID-19 admissions during the period of January 1, 2020. and April 10, 2020. HHS did not make payments to hospitals that reported they had fewer than 100 COVID-19 admissions during the period of January 1, 2020, and April 10, 2020. The FOIA request specifically seeks data on the hospitals that reported they had fewer than 100 COVID-19 admissions during the period of January 1, 2020, and April 10, 2020, and therefore, did not receive a payment in the first round of the COVID-19 High Impact Area Distribution.

This notice only applies to hospitals that reported in the first round of reporting to HHS that they had fewer than 100 COVID-19 admissions during the period of January 1, 2020, and April 10, 2020, and, as a result, did not receive a payment in round 1 of the COVID-19 High-Impact Area Distribution. Comments from any entity that does not satisfy these conditions will not be reviewed.

Necessity of the Action

Executive Order No. 12600, 52 FR 23781 (1987), and the HHS FOIA regulations at 45 CFR 5.42(a) require HRSA coordinate predisclosure notifications for records that were submitted to HHS, for which HRSA was deemed a custodian of the requested data given HRSA's oversight of the Provider Relief Fund. HRSA has reason to believe that information in the records could reasonably be considered confidential commercial information and exempt from disclosure under FOIA Exemption 4. FOIA Exemption 4 allows agencies to withhold trade secrets and commercial or financial information obtained from a person (business entities including hospitals are considered people under the FOIA) and is privileged or confidential. Both the Executive Order and HHS FOIA regulations permit agencies to notify a voluminous number of submitters by posting or publishing a notice in a place where the submitters are reasonably likely to become aware of it. See Executive Order 12600 or 45 CFR 5.42(a)(1). This notice satisfies this requirement. Additionally, HRSA will send predisclosure notices directly to hospitals for whom HRSA has contact information.

HRSA determined that, for those hospitals that did not receive a payment in the first round of the COVID-19 High Impact Area Distribution, the following responsive data could reasonably be considered confidential commercial information and exempt from disclosure under FOIA Exemption 4:

(1) number of COVID-19 admissions; and

(2) intensive care unit hospital beds for each facility (and associated Centers for Medicare & Medicaid Services' Certification Number (CCN))

HRSA must analyze the releasability of the data prior to making a release decision. Because organizations submitted data to HHS that was identified in the FOIA request, HRSA is notifying submitters of their full rights through this predisclosure notice. HHS's FOIA regulations provide affected entities with 10 working days from the date of this notice to object to disclosure of part or all of the information contained in these records.

A person who submits records to the government may designate part or all of the information in such records that they may consider exempt from disclosure under Exemption 4 of the FOIA. The designation must be in writing. See 45 CFR 5.41.

So that HRSA can determine how providers actually and customarily treat the disclosure of these data, please respond to the following questions with respect to the (1) number of COVID-19 admissions and (2) intensive care unit hospital beds for each facility (and associated CCN) and send your organization's response to [e-mail] in the timeframe referenced in the dates section of this notice. Please include your organization's CCN and facility name in your response to ensure that it is attributed correctly.

(1) Do you customarily keep the requested information private or closely held? What steps have you taken to protect the confidentiality of the requested data, and to whom has it been disclosed?

(2) What facts support your belief that this information is commercial or financial in nature?

(3) Did the government provide you with an express or implied assurance of confidentiality when you shared the information with the government? If so, please explain.

(4) Were there express or implied indications at the time the information was submitted that the government would publicly disclose the information? If so, please explain.

(5) How would disclosure of this information harm an interest protected by Exemption 4 (such as by causing foreseeable harm to your economic or business interests)?

Intended Effects of the Action

In the event that a submitter fails to respond to the notice within the time specified, it will be considered to have no objection to disclosure of the information. Submitted objections will be given the appropriate consideration; however, responses are not an agreement that HRSA will withhold the information. If HRSA decides to release the information over objection, HRSA will inform submitters, in writing, along with HRSA's reasons for the decision to release. HRSA will include with such notice a description of the information to be disclosed or copies of the records as HRSA intends to release them. HRSA will also provide submitters with a specific date that HRSA intends to disclose the records, which must be at least 5 working days after the date of the intent to release notice. HRSA will not consider any information received after the date of a disclosure decision.

Maria G. Button,

Director, Executive Secretariat.