The Johnson Memorial Hospital campus in Franklin is seen in this April 2022 photo.
Noah Crenshaw | Daily Journal
Johnson Memorial Health is one of eight hospitals being sued by an Indianapolis newspaper for allegedly withholding information on how they are spending public funding they’ve received for their nursing homes.
The Indianapolis Star, also known as IndyStar, filed a lawsuit in Marion County Superior Court 1 on Aug. 3 alleging that eight Indianapolis-area public hospitals were withholding information on how tax dollars are being spent. The eight hospitals own more than 250 of the state’s 527 nursing homes, according to the publication.
News of the lawsuit was first reported by the publication on Wednesday, and the suit is asking that the hospitals provide the requested records and pay for any legal fees incurred by IndyStar.
The complaint was filed against Franklin-based Johnson Memorial Health along with seven other hospitals: Hancock Regional Hospital, Hendricks Regional Health, Henry Community Health, Major Health Partners, Riverview Health, Rush Memorial Hospital and Witham Health Services.
The information that IndyStar is requesting are records regarding supplemental Medicaid dollars that are distributed quarterly to the hospitals through the Indiana Family and Social Services Administration’s Upper Payment Limit, or UPL, program. The funds are provided based on how many Medicaid enrollees a hospital has in its nursing homes, although hospitals are not required to use the funds for nursing home services, according to the lawsuit.
In May 2021, IndyStar and investigative reporter Tony Cook submitted requests to 20 hospitals asking for documents showing the allocation of the funds to nursing homes and to other purposes under Indiana’s Access to Public Records Act, or APRA. Twelve of those hospitals provided records and the eight named in the lawsuit did not, the lawsuit says.
JMH and Major Health Partners denied the requests saying that the requests seek “proprietary” and “competitive” information, the lawsuit says.
After Cook submitted the initial request to JMH in May 2021, Dr. David Dunkle, JMH President and CEO, responded to Cook saying the hospital was in the process of reviewing the requested records and whether they qualify as records allowed to be released under APRA. Cook then submitted three follow-up requests over the next few months asking for an update on the records request and did not receive a reply, documents show.
Following the last follow-up email on Sept. 1, 2021, Dunkle responded, apologized for the delay and said that the hospital would not provide the records.
“After much consideration, Johnson Memorial Health feels that the information that you have requested is competitive and proprietary in nature, and thus does not have to be supplied under the Indiana Access to Public Records Act,” Dunkle wrote.
Four hospitals — Hancock, Hendricks, Henry and Witham — denied the requests saying that the records were protected trade secrets. The two remaining hospitals that issued denials — Riverview and Rush — did not give any reason for why IndyStar’s requests were denied, the lawsuit alleges.
Under Indiana law, a public agency may deny an APRA request if the denial states “the specific exemption or exemptions authorizing the withholding of all or part of the public record.”
Due to these denials, the publication then filed a formal complaint with the Office of the Public Access Counselor in September 2021, disputing the use of APRA exceptions the hospitals cited in their denials. On Sept. 27, Riverview responded to the complaint, saying that it denied access to the records containing alleged trade secrets.
Four days later, JMH, along with the seven remaining hospitals issued a joint written response to the complaint also saying that the records contained alleged trade secrets, and conducted a confidential review of records with the public access counselor justifying the denials. The review was not made public to IndyStar, the lawsuit says.
In December, the public access counselor issued an informal opinion that sided with the hospitals on the issue. According to the opinion, Indiana law gives county hospitals a broad ability to claim trade secrets as an exception.
In order to invoke the exception, the hospitals had to justify the reasoning, which led to the confidential review of materials and arguments tailored to the request, the opinion says. The hospitals’ positions are consistent with state law and the public access counselor would be limited to say anything otherwise, despite IndyStar’s argument that the fund records are of a compelling public interest.
“The General Assembly must have contemplated scenarios wherein county hospitals could keep certain information in-house even though they are public agencies,” the opinion says. “Therefore, after further review, it is the opinion of this office that the agencies named in this complaint did not violate the Access to Public Records Act in light of the Title 16 provision.”
In a statement to the Daily Journal, Dunkle said he was disappointed that IndyStar is pursuing the lawsuit.
“The Indiana Public Access Counselor has already found the information Mr. Cook is seeking to be of a proprietary nature and has thus stated that, per Indiana Code, JMH is not required to provide this information to the Indianapolis Star,” Dunkle said. “Honestly, having to deal with this lawsuit, after the Indiana public access counselor has already formally found in our favor, while still dealing with Covid, a national nursing shortage and increased labor costs, is disheartening. That being said, JMH will not let this lawsuit distract from our commitment to always putting the patient first and to providing quality healthcare services to our community.”
Dunkle also referred a letter to the editor written in November 2020 in response to a report about JMH being mentioned in a lawsuit filed against Community Health Network by one of their former employees. JMH has not been named a defendant in the suit.
In the letter, Dunkle said it would be “fiscally irresponsible” for JMH to not participate in the UPL program, and that the hospital has used the funding from the program to invest in facilities, services, physicians and equipment needed to meet the healthcare needs of both the hospital and the nursing homes the hospital owns.
“If it were not for the nursing home UPL … program, Johnson Memorial would not be able to provide the basic and enhanced services our community needs, including the recent improvements to our emergency department and outpatient services facilities,” he wrote in the letter.
