Solo Practice

KASPER Non-Disclosure Provisions of KRS 218A.202(6) Unconstitutional

By R. Garrett Worley III

COMMONWEALTH v. CHAUVIN
Kentucky Court of Appeals
2008-CA-00027
Rendered June 13, 2008

Baumler sued Warner, alleging personal injuries sustained in an automobile accident. Warner’s counsel obtained some of Baumler’s medical records and identified what he believed to be a pattern of behavior suggesting that Baumler fabricated or exaggerated his complaints in order to obtain narcotics for non-medical reasons. Accordingly, Warner moved the Jefferson Circuit Court for an order requiring the Cabinet for Health and Family Services’ records custodian to release Baumler’s KASPER (Kentucky All-Schedule Prescription Electronic Reporting) records. Circuit Judge McKay Chauvin found that Warner had shown good cause and granted the order, provided that the records were used only for litigation and claim evaluation purposes.

The Cabinet moved the trial court to vacate the order, arguing that KRS 218A.202(6) prohibited such disclosure. KRS 218A.202(6) reads in pertinent part:

The Cabinet for Health and Family Services shall only disclose data to persons and entities authorized to receive that data under this section. Disclosure to any other person or entity, including disclosure in the context of a civil action where the disclosure is sought either for the purpose of discovery or for evidence, is prohibited unless specifically authorized by this section.

The trial court found that the Cabinet’s obligation and authority to release KASPER records under KRS 218A.202(6) was in conflict with the court’s obligation and authority to permit discovery under CR 26.02(1). Relying on O’Bryan v. Hedgespeth, 892 S.W.2d 571 (Ky. 1995), the court determined that a statute that encroaches on the judicial branch’s responsibility to control matters of discovery violates the separation of powers and denied the Cabinet’s motion.

The Cabinet petitioned the Court of Appeals for writs of prohibition and mandamus, contending that the issue is not one relating to discovery. Rather, the Cabinet argued, the issue is whether the trial court proceeded erroneously against a mandate of the General Assembly. Warner argued that the trial court did not err in ordering the production of the KASPER records because KRS 218A.202(6) encroaches on the exclusive power of the judicial branch to promulgate rules controlling the scope of discovery. The Court of Appeals saw “no materially significant distinction with regard to the issue at hand between KRS 411.188, which was held to be unconstitutional in O’Bryan, supra, and the amended language in KRS 218A.202(6) that is at issue in this case because we are of the opinion that they both amount to rules of practice and procedure that infringe on the exclusive discretion and authority of the Judicial Branch to control the functioning of its own proceedings.”

Alternatively, the intervening petitioner, Kentucky Attorney General Jack Conway, contended that there was no conflict between CR 26.02(1) and KRS 218A.202(6) because the CR 26.02(1) excludes any privileged matter from the scope of discovery and, therefore, the trial court erred in failing to exclude from discovery a confidential KASPER record as the Rule obligates it to do. The Court of Appeals disagreed, noting:

[W]ith regard to information or documents, Black’s Law Dictionary defines ?confidential? as ?meant to be kept secret? while it defines ?privileged? as ?[n]ot subject to the usual rules or liabilities; esp., not subject to disclosure during the course of a lawsuit.? BLACK’S LAW DICTIONARY (8th ed. 2004). Clearly, the two adjectives are not one and the same. Unlike information or document that is ?confidential,? information that is ?privileged? is not discoverable, unless discovery is allowed under a listed exception…On the basis of a plain reading of KRS 218A.202(6), the Court is unable to discern any intent by the General Assembly to elevate the confidential KASPER records to a privileged status.

Ultimately, Court of Appeals denied the Cabinet’s petition, but determined that the trial court must amend its order to add an additional procedural step. The amended order must direct the Cabinet’s records custodian to deliver the KASPER records to the trial court under seal for in camera inspection to determine what portion of the records are relevant to the subject matter of the litigation. Only after this procedural step, may the records be released to Warner’s counsel.

Full post as published by Garrett Worley's Blawg on June 20, 2008 (boomark / email).