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Opinion Letter No. 02-07
August 27, 2002
Schedule of Maximum Allowable Medical Fees
Schedules of maximum allowable medical fees ("Fee
Schedules") that are required by statute to be
submitted to the Department of Labor and Industrial Relations ("DLIR")
by health care plan
contractors ("Contractors"), may be withheld from public
disclosure.
Section 386-21.5, Hawaii Revised Statutes, requires
Contractors to provide Fee Schedules to the DLIR, and requires the
DLIR to use Fee Schedules to establish prevalent charges. Despite
this statutory requirement, Contractors have refused to submit Fee
Schedules, or have submitted them too late to be included in survey
compilations.
Because there are only 15 Contractors who are required
by law to submit Fee Schedules, late submittals or non-submittals
compromise the validity of the DLIR's survey. The DLIR asserted
that it has no power to force Contractors to comply with the statutory
requirement of submitting Fee Schedules.
When information is required to be submitted to an agency, there
is a presumption that because the
information is required to be submitted, the agency would suffer
no frustration of its government
function if it disclosed the records. In this case, the DLIR overcame
this presumption by showing that
disclosure of the Fee Schedules would impair the DLIR's ability
to obtain similar information in the
future because statements and actions of Contractors indicate a
reluctance to submit Fee Schedules if
they will be made public, and because the DLIR is unable to enforce
submittal in a timely manner.
This impairment of the DLIR's ability to obtain Fee
Schedules in the future would frustrate its statutory
duty of creating prevalent charges. Thus, the DLIR has discretion
to withhold disclosure of Fee
Schedules as disclosure would frustrate its legitimate government
function.
The OIP also adopts the federal test for administrative effectiveness
as appropriate for an agency's
invocation of the frustration exception. Protecting the DLIR's governmental
interest in administrative
effectiveness is satisfied by the facts presented. The DLIR's interest
in administrative effectiveness
would be frustrated if it was unable to obtain accurate and timely
Fee Schedules from Contractors.
The frustration exception therefore allows the DLIR to withhold
disclosure of Fee Schedules.
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