Judge Mitchell L. Beckloff, Case Number: 22STCP01429, Date: 2023-10-11 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 22STCP01429, Date: 2023-10-11 Tentative Ruling

USC CENTER FOR HEALTH JOURNALISM v. LOCAL INITIATIVE HEALTH AUTHORITY FOR LOS ANGELES COUNTY

Petitioners, University of Southern California Center for Health Journalism and University of Southern California Center for Health Financing, Policy, and Management, seek a writ of mandate directing Respondent, Local Initiative Health Authority for Los Angeles County [Respondent or L.A. Care], to produce unredacted records in response to Petitioners’ request under the California Public Records Act (CPRA), Government Code section 7920.000 et seq. for performance score cards developed by Respondent for each of its individual provider organizations.[1] Respondent opposes Petitioners’ request.

Respondent’s general objection to “all footnotes” is sustained. The declarant cites the materials for their truth. (See, e.g., footnotes 3, 4.) Petitioners did not request judicial notice of the materials. Objections 4, 5, 6, 7, 8 and 10 are sustained. Objections 1, 2, 9, 11, 12, 13, 14, 16, 17, 18, 19, 20, 21 and 22 are overruled. The court sustains in part objections 3 (as to “spurring a state . . . access to care”) and 15 (as to “helped spark . . . laws and regulations”).

Objection 1 is overruled. The remaining objection is sustained. (Petitioners concede Exhibits G, H and I are no longer relevant.)

Respondent’s general objection to “all footnotes” is sustained. The declarant cites the materials for their truth. (See, e.g., footnotes 3, 4.) The objections are otherwise overruled.

The objection is sustained. The court has received the document into evidence. The declarant’s summary of the document is impermissible secondary evidence of the contents of the document.

Respondent “is a public health plan created by the State of California and Los Angeles County to provide health coverage to low-income Los Angeles County residents. L.A. Care contracts with providers in Los Angeles, including Independent Physician Associations (‘IPAs’) and Participating Physician Groups (‘PPGs’) . . ., to deliver Medi-Cal covered services to its members.” (Pirritano Decl. ¶ 6; see also Pet. ¶¶ 11-27.)[2]

In 2015, Respondent commenced a Value Initiative for IPA Performance (VIIP). Matthew Pirritano, Respondent’s Director of Population Health Informatics, describes the VIIP program as follows:

In 2015, under the umbrella of its Quality Improvement Program, L.A. Care began to pilot its VIIP program to measure the quality of services provided by its contracted Provider Groups. This program was subsequently implemented as a Pay-for-Performance program for measurement year 2017, reported in 2018, which provides financial rewards for providers who provide high-quality care to L.A. Care Medi-Cal members. The purpose of the VIIP program is to allow L.A. Care to have objective data that it can use to work with its Provider Groups to improve the quality of healthcare provided to all L.A. Care members. L.A. Care continues to refine the VIIP methodology, measures, and program implementation to this day.

The VIIP program measures Provider Groups' performance across multiple domains, including Healthcare Effectiveness Data and Information Set (“HEDIS”), clinical quality, utilization, encounters, and member experience. The program uses approximately 42 measures. . . .

The data gathered as part of this program is then compiled into VIIP Scorecards. The Provider Groups use these VIIP Scorecards to track their individual progress on achieving L.A. Care's targeted quality improvement efforts. . . . [¶]

Some of the measures used for the VIIP Scorecards (e.g., Healthcare Effectiveness Data and Information Set [“HEDIS”]) and Clinician and Group Consumer Assessment of Healthcare Providers and Systems ("CG-CARPS") are standard measures used by many health plans and health plan accreditation organizations while others are unique to L.A. Care. The scores on individual measures in the VIIP Scorecards are not publicly reported for Provider Groups.

Respondent submits evidence the VIIP Scorecards are shared confidentially with each Provider Group reflected in the scorecard; VIIP Scorecards have not been shared in an unredacted form outside of L.A. Care or the individual VIIP participants. (Id. ¶ 14 and Exh. C, D.) The services agreement between Respondent and its Provider Groups includes a confidentiality provision, which states in part: “All information, records, and data collected by Healthplan, from PPG and each Affiliated Provider and Subcontracted Provider, pursuant to the terms of this Agreement, including but not limited to . . . shall be maintained in confidence.” (Lageson Decl. ¶ 5, Exh. B,

§ 3.3 [fee for service], ¶ 6, Exh. C, 3.3 [shared risk agreement, substantially similar].)

On July 28 and 30, 2021, pursuant to the CPRA, Petitioners requested copies of “[a]ll documents between LA Care and individual provider organizations related to performance and the LA Care IPA Performance [Scorecards]” for every year since the launch of the VIIP Scorecards (the Request). (Levander Decl. Exh. 2, 3.)

In or about September 2021, Respondent produced the VIIP Scorecards but redacted the names of the Provider Groups. Respondent asserted multiple exemptions in the CPRA to support the redactions. (Levander Decl. Exh. 4, 5.) The single issue in this litigation is the whether Respondent’s may properly claim an exemption under the CPRA for the individual Provider Group’s name on the scorecard.

Pursuant to the CPRA, individual citizens have a right to access government records. In enacting the CPRA, the Legislature declared “access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state.” (Gov. Code, § 7921.000; see also County of Los Angeles v. Superior Court (2012) 211 Cal.App.4th 57, 63.)

Article 1, Section 3(b) of the Constitution affirms that “[t]he people have the right of access to information concerning the conduct of the people’s business.” The Constitution mandates the CPRA be “broadly construed,” while any statute “that limits the right of access” must be “narrowly construed.” (See National Lawyers Guild, San Francisco Bay Area Chapter v. City of Hayward (2020) 9 Cal.5th 488, 507; see also County of Los Angeles v. Superior Court (Anderson-Barker) (2012) 211 Cal.App.4th 57, 60.) The CPRA “does not allow limitations on access to a public record based upon the purpose for which the record is being requested, if the record is otherwise subject to disclosure.” (Gov. Code, § 7921.300.) “Any reasonably segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are exempted by law.” (Gov. Code, § 7922.525, subd. (b).)

Petitioners bear the burden of proof and persuasion in a mandate proceeding. (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1154.) “To establish an agency has a duty to disclose under [the CPRA], the petitioner must show that:

(1) the record ‘qualif[ies] as [a] ‘public record[ ]’ . . .; and (2) the record is ‘in the possession of the agency.’ ” (Anderson-Barker v. Superior Court (2019) 31 Cal.App.5th 528, 538.)

CPRA exemptions must be narrowly construed and the agency bears the burden of showing a specific exemption applies. (Sacramento County Employees’ Retirement System v. Superior Court (2013) 195 Cal.App.4th 440, 453.) “Because the agency has full knowledge of the contents of the withheld records and the requester has only the agency's affidavits and descriptions of the documents, its affidavits must be specific enough to give the requester ‘a meaningful opportunity to contest’ the withholding of the documents.” (American Civil Liberties Union of Northern California v. Superior Court (2011) 202 Cal.App.4th 55, 83; see also Getz v. Superior Court (2021) 72 Cal.App.5th 637.)

“ ‘On questions of law arising in mandate proceedings, [the court] exercise[s] independent judgment.’ . . . . Interpretation of a statute or regulation is a question of law.” (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.)

Respondent contends it properly denied the Request under the catchall exemption set forth in Government Code section 7922.000.

Government Code section 7922.000 authorizes “a government agency to withhold [public] records if it can demonstrate that, on the facts of a particular case, the public interest served by withholding the records clearly outweighs the public interest served by disclosure.” (City of San Jose v. Superior Court (1999) 74 Cal.App.4th 1008, 1017.) “The burden of proof is on the proponent of nondisclosure, who must demonstrate a ‘clear overbalance’ on the side of confidentiality.” (Id. at 1018.)

The courts employ the following three-part test when considering the catchall exemption:

(1) We determine if there is a public interest served by nondisclosure of the records; (2) If so, we determine if a public interest is served by disclosure of the records; and (3) If both are found, we determine whether (1) clearly outweighs (2). If it does not, the records are disclosed. In applying this test, we keep in mind the public policy favoring disclosure of records dealing with the public's business, the policy of construing exemptions narrowly, and the fact that the burden is on the party resisting disclosure to prove an exemption applies. (Los Angeles Unified School Dist. v. Superior Court (2014) 228 Cal.App.4th 222, 243 [LAUSD].)

Respondent contends non-disclosure of the names of the Provider Groups on the scorecards serves an important public interest in protecting candid and accurate participation by Provider Groups in the VIIP program and, ultimately, Provider Groups’ participation in Respondent’s healthcare network. As support, Respondent relies on declarations provided by Matthew Pirritano, Respondent’s Director of Population Health Informatics; Gary J. Mihalik, a physician and healthcare consultant whose expertise includes performance measurement of medical groups and other healthcare organizations; and John Baackes, Respondent’s Chief Executive Officer.

In addition to those statements from Pirritano quoted earlier in the Background and Procedural History section of this order, Pirritano also attests:

The robust quality improvement efforts of the Provider Groups—as detailed on the requested VIIP Scorecards—contributes directly to L.A. Care's competitive advantage and overall performance in the healthcare marketplace. The VIIP Scorecards were carefully and deliberately designed as a tool for improving the quality of care among individual Provider Groups. Also, the VIIP Scorecards encourage Provider Groups to collaborate in the development of targeted quality improvement initiatives. Developing future quality improvement initiatives is important because quality of care is a basis for competition in the healthcare marketplace. (Pirritano Decl. ¶ 9.)

The standard for reporting healthcare quality in the industry is to publish summary quality scores for the various healthcare organizations, such as using a five-star rating system. It is not the industry standard to publicly report the numerical scores for the individual measures that support the star-ratings. (Pirritano Decl. ¶ 11.)

I am not aware of any organization that publicly reports individual numerical scores like the detailed scores in the VIIP Scorecards for medical groups or independent practice associations. Reporting the detailed numerical data is not industry standard. (Pirritano Decl. ¶ 13.)

L.A. Care has taken a variety of actions to protect the secrecy of the Provider Groups' VIIP scores. The VIIP scorecards and their underlying data have not been shared in an un-redacted form outside of L.A. Care or the VIIP participants. On the rare occasion that information is shared, only limited information is shared and that which is shared is marked as confidential trade secret. Each Provider Group receives its own un-redacted scorecard, pursuant to similar confidentiality restrictions that require each Provider Group to maintain the confidentiality of the VIIP data. When each Provider Group receives its VIIP Scorecard, it also receives a cover letter from L.A. Care reminding them to keep this information confidential. Additionally, each Scorecard also includes language reminding the Provider Group that the VIIP Scorecard is confidential. L.A. Care does not presently intend to disclose the measure level numerical data.” (Pirritano Decl. ¶ 14.)

Based on his professional experience in the field of healthcare accreditation and review of documents from this case, Mihalik opines confidentiality is necessary for quality improvement efforts in the healthcare setting and disclosure of such data is harmful to Respondent’s initiatives to improve the quality of health care to its members. (Mihalik Decl. ¶¶ 13-25.)

The data collected for quality improvement differ from the data collected for public reporting. The distinction between quality improvement performance data and public reporting performance data do not necessarily hinge on the measures specifically. Instead, it hinges on what the intent and understanding was at the beginning of the process. (Mihalik Decl. ¶ 15.)

When data are collected for quality improvement, the mutual understanding is that these are confidential data for quality improvement that will not be used for public reporting in any kind of granular way. . . . (Mihalik Decl. ¶ 16.)

The expectation in providing data for public reporting differs because, while the provider may not be happy that the data will be publicly reported, the provider understands that this is the plan going into the endeavor. . . . (Mihalik Decl. ¶ 17.)

L.A. Care uses the data that is reported on the VIIP Scorecards in two ways: one is to catalyze quality improvement efforts throughout the network and to try to get all the Provider Groups to improve. The second way is to determine a portion of reimbursement based on performance. [¶] Releasing un-redacted practitioner performance and quality improvement data is not industry standard. Even for some organizations who do make available such data, they do so at a summary level and only after a very careful pre-release review of that data. [¶] Taking data that were originally collected for quality improvement purposes, under the assurances that the data would remain confidential, and to then publicly report that data would have a negative impact on L.A. Care and its providers. . . . (Mihalik Decl. ¶¶ 18-20.)

To the extent that the data collected with assurances of confidentiality are not maintained as such, providers no longer have confidence that it will not happen to other data that they submit to health plans other than L.A. Care. This can have a chilling effect on quality-improvement efforts throughout the whole Southern California area. A provider's willingness to fully participate in health plan activities that involve quality improvement data submission hinges in large part on the assurances that the data will not be misused or used against them. Publicly reporting the data that L.A. Care told the Provider Groups would be kept confidential is a prime example of misusing data and is therefore likely to have a chilling effect on the desire of Provider Groups to cooperate with such activities. Even if Provider Groups are contractually obligated to participate in the L.A. Care VIIP Program, knowing that the data will be disclosed to the public may influence their decisions to not participate fully. For example, the provider may choose to not submit the data or selectively submit data. (Mihalik Decl. ¶ 21.)

Based on my experience, I have seen instances where Provider Groups did not provide data that would have gotten them a higher reimbursement. This occurred for multiple reasons, one of which had to do with the cost of collecting the data. Often Provider Groups did not have enough staff to collect such data, so even though there were incentives to provide the data, they just could not do it. If a Provider Group believes that the data it provides are going to be publicly released, and the data are not going to show the Provider Group in a favorable light, it may choose to not report. Additionally, if the Provider Group has multiple health plans to which it needs to report data, and its resources are stretched thin, it may decide that L.A. Care is the one health plan to which it will not report to because L.A. Care will publicly release its data, whereas other health plans would not. (Mihalik Decl. ¶ 22.)

Releasing the data that L.A. Care has collected under assurances of confidentiality could also result in L.A. Care losing some of their Provider Groups or making it more difficult to contract with other Provider Groups in the future. For example, groups with lower measured performance (which is not the same as lower actual performance) may decide that it is not worth it for their data to be made public and decide to opt out of L.A. Care and go with another health plan instead. (Mihalik Decl. ¶ 23.)

Another impact from publicly releasing this data is that other health plans might try to recruit the higher performing Provider Groups with better incentives because they appear to be doing a better job, which could negatively impact L.A. Care's network. It is already difficult for Provider Groups to take care of Medicaid patients because the reimbursement is not very good, and for L.A. Care to lose its ostensibly higher performing Provider Groups would have a negative impact on their ability to serve those patients within their care. (Mihalik Decl. ¶ 24.)

Observing these negative consequences of publicly reporting healthcare quality improvement data are difficult for multiple reasons. First, entities that withdraw from a health plan will frequently do so when a contract expires and the Provider Groups do not typically publicly announce why they do not renew a contract. They also do not publicly explain why they may be slow to provide data or why they may provide incomplete data. However, given my extensive experience in working in healthcare quality improvement, I know that these consequences have occurred. In working with various health plans, I have observed changes in the use of quality improvement data correlate with changes in the makeup of a health plan's network. I have also had these changes reported to me. These changes occur too frequently for it to be chance alone. Additionally, this opinion is also based on human behavior. If a Provider Group has the option to remain with a health plan that is not trustworthy with the Provider Group's data and the Provider Group can join another health plan that places fewer burdens on the Provider Group's operations and treats its data confidentially, the Provider Group is more likely to switch its affiliation. (Mihalik Decl. ¶ 25.)

The data gathered as part of VIIP is compiled into VIIP Scorecards. The Provider Groups use these VIIP Scorecards to track their individual progress on achieving L.A. Care's targeted quality improvement efforts. The robust quality improvement efforts of the Provider Groups—as detailed on the requested Scorecards—contribute directly to L.A. Care's competitive advantage and overall performance in the healthcare marketplace. The VIIP Scorecards were carefully and deliberately designed as a tool for improving the quality of care among individual providers. Also, VIIP Scorecards encourage Provider Groups to collaborate in the development of targeted quality improvement initiatives. Developing future quality improvement initiatives is important because quality of care is a basis for competition in the healthcare marketplace. Information pertaining to detailed scores on individual measures and their components that is included in the VIIP Scorecards is not publicly reported for Provider Groups. (Baackes Decl. ¶ 8.)

L.A. Care acquired information from its Provider Groups for VIIP in confidence. When Provider Groups originally agreed to participate in VIIP, they were informed on multiple occasions that the VIIP data would not be publicly released. For example, I personally assured leaders of Provider Groups in face-to-face meetings that the VIIP data would not be publicly disclosed. Acquiring this data confidentially was necessary for VIIP to function as intended. If L.A. Care were to voluntarily release the unredacted VIIP Scorecards after collecting the information with the assurance of confidentiality, Provider Groups would view that as a betrayal of the trust that L.A. Care has cultivated with its Provider Groups. Based on my experience in healthcare, and in particular with the Medi-Cal line of business, I believe such a breach of trust would negatively impact L.A. Care's network, and ultimately the services provided to our members. (Mihalik Decl. ¶ 10.)

The Evidence Demonstrates a Strong Public Interest in Non-Disclosure of Provider Group Names

Significantly, Respondent submits evidence that a Provider Group’s VIIP Scorecard is shared only with that Provider Group on a confidential basis. VIIP Scorecards are not shared in an unredacted form outside of L.A. Care or the particular VIIP participant reflected in the scorecard. (Pirritano Decl. ¶ 14 and Exh. C, D; Baackes Decl. ¶¶ 10-11.) The services agreement between Respondent and its Provider Groups includes a confidentiality provision, which applies to “All information, records, and data collected by Healthplan, . . . .” (Lageson Decl. ¶ 5, Exh. B,

§ 3.3 [fee for service], ¶ 6, Exh. C, 3.3 [shared risk agreement, substantially similar].) The evidence supports a finding that “[w]hen Provider Groups originally agreed to participate in VIIP, they were informed on multiple occasions that the VIIP data would not be publicly released.” (Baackes Decl. ¶ 10.) Petitioners have not cited any evidence the unredacted scorecards—that is Provider Group names—have been disclosed publicly or to persons or entities outside of L.A. Care or the particular VIIP participant.

In context of Respondent’s assurances of confidentiality, the evidence from Pirritano, Mihalik, and Baackes supports a finding there is a strong public interest in non-disclosure of the Provider Group names on the scorecards. Mihalik explains the types of harms that could result if the unredacted scorecards are publicly disclosed. (Mihalik Decl. ¶¶ 17-25.) To summarize, Mihalik reports disclosure of the unredacted scorecards could have a chilling effect on Respondent’s quality improvement efforts as providers would be less willing to provide comprehensive quality improvement data. (Mihalik Decl. ¶¶ 21-22.) In addition, Mihalik believes “releasing the data that L.A. Care has collected under assurances of confidentiality could also result in L.A. Care losing some of their Provider Groups or making it more difficult to contract with other Provider Groups in the future.” (Mihalik Decl. ¶ 23.) Baackes’ statements corroborate Mihalik’s opinions concerning the negative consequences of public disclosure of the unredacted scorecards. (Baackes Decl. ¶¶ 8-17.) The evidence demonstrates a significant impact on health care delivery provided by Respondent. Releasing Provider Group names will likely undermine quality of care improvement efforts and Respondent’s ability to compete in the marketplace to maintain and attractive health care providers. Further, releasing Provider Group names after assurances of confidentiality has the potential to undermine overall data collection efforts by Respondent.

The evidence also establishes “[t]he standard for reporting healthcare quality in the industry is to publish summary quality scores for the various healthcare organizations, such as using a five-star rating system. It is not the industry standard to publicly report the numerical scores for the individual measures that support the star-ratings.” (Pirritano Decl. ¶ 11.) Given such evidence, common experience also suggests public disclosure of the unredacted scorecards would cause providers to be less forthcoming in the VIIP program and even to seek to transfer to other health plans, including private ones not subject to public disclosure of internal quality improvement data. In CPRA litigation, courts “have looked to human experience in order to form their conclusions on the likely effect of disclosure.” (LAUSD, supra, 228 Cal.App.4th at 245.)

The court finds Petitioners’ arguments suggesting little public interest in non-disclosure of unredacted scorecards unpersuasive.

Petitioners contend “L.A. Care’s ability to receive the information it uses to create its scorecards could not be compromised if the scorecards are released, because the provider groups are contractually obligated to provide the data.” (Opening Brief 13:15-17.)[4] Petitioners also contend the applicable service agreements allow release of data collected by Respondent. For example, section 2.18 of the fee for service agreement provides:

“Healthplan shall have the right to use performance data, including but not limited to data of the PPG, its Affiliated Providers and Subcontracted Providers, as applicable, for activities of Healthplan, as determined by Healthplan in its sole discretion, including but not limited to quality improvement activities, public reporting to consumers, preferred status designation in the networks, and reduced Member cost sharing.” (Coursolle Decl., Exh. J [emphasis added]. See Coursolle Decl., Exh. K [same at section 2.17 (d) in shared risk agreement].)

“All information, records, and data collected by Healthplan, from PPG and each Affiliated Provider, and Subcontractor Provider, pursuant to the terms of this Agreement, including but not limited to financial information, credentialling information, and applicable information received during attendance at quality management and utilization management meetings . . . shall be maintained in confidence.” (Coursolle Decl., Exh J [section 3.3], K [same at section 3.3].)

The agreements also note the confidentiality provisions do not apply to disclosures required of Respondent pursuant to the CPRA. (Coursolle Decl., Exh J [section 3.3], K [same at section 3.3].)

While the scorecard information is derived from “performance data” and appears to conflict with the service agreements’ provisions requiring Respondent to maintain certain the confidentiality of collected confidential information, Respondent reports “[w]hen Provider Groups originally agreed to participate in VIIP, they were informed on multiple occasions that the VIIP data would not be publicly released.” (Baackes Decl. ¶ 10.) Respondent’s evidence of assurances of confidentiality are bolstered by the cover letter reiterating that VIIP data are not subject to public disclosure. (Pirritano Decl. ¶14, Exh. C [statements admonishing the information not be disclosed].) Respondent also includes a confidentiality statement on the VIIP Scorecards themselves. (Pirritano Decl. ¶14, Exh. D [not subject to public disclosure under law].)

While the Provider Groups are contractually obligated to participate in VIIP, they entered into such contracts with Respondent’s assurances their performance data for VIIP would remain confidential.[5] Mihalik’s expert opinion evidence demonstrates a Provider Group’s understanding performance data will be disclosed to the public, despite earlier promises of confidentiality, will negatively impact the Provide Groups’ future participation in VIIP and risk overall participation in Respondent’s health plan.

Respondent also submits evidence the purpose of the “public reporting to consumers” provision in section 2.18 of the service agreements “was to give L.A. Care the option to create a summary rating system and publish those summary quality ratings on its website at a later date.” (Baackes Decl. ¶ 13 [emphasis added].) Such evidence is consistent with the confidentiality provisions and Respondent’s assurances of confidentiality under the VIIP program. Significantly, there is no evidence that Respondent or a Provider Group have ever publicly disclosed VIIP Scorecard results.

Petitioners also point out that “the contracts specifically warn that the confidentiality provisions ‘shall not apply to any disclosures required of Healthplan, as determined in its sole discretion, pursuant to the California Public Records Act’ and other open government laws.” (Opening Brief 14:7-10.) While true, the provision does not detract from Respondent’s assurances to Provider Groups its specific performance data would be kept confidential. The CPRA provision suggests Respondent has the “sole discretion” to determine whether to disclose the information, and the evidence supports a finding Respondent advised Provider Groups it would not release the information. In fact, Respondent advised Provider Groups on their scorecards the scorecard is a “confidential document not subject to public disclosure . . . .” (Pirritano Decl., Exh. D.) Given the ongoing and consistent representations made by Respondent, Provider Groups could reasonably believe their specific performance data would remain confidential despite the broad provision in the service agreements.

Petitioners argue Mihalik’s expert opinion is speculative. They advise at deposition Mihalik could cite only one example—from Kentucky and 15 years ago—of a provider group opting out of a health plan after performance scores were released publicly. (Opening Brief 23:4.)

Mihalik’s reliance on a single event, however, illustrates “[w]here a party is trying to show a public interest in nondisclosure, by its very nature it is trying to prove how people will respond to something that has not occurred; it is trying to show that if previously secret records are made public, something bad will happen.” (LAUSD, supra, 228 Cal.App.4th at 244.) “[E]xperts often opine on what they predict will be the consequences of proposed actions, and expert opinions can be admissible in this setting.” (Id. at 244-245.)

Mihalik explains why the negative consequences of publicly reporting healthcare quality improvement data are difficult to observe. (Mihalik Decl. ¶ 25.) Entities withdrawing from a health plan will do so when a contract expires without announcing a reason for withdrawal. Provider Groups are also not necessarily transparent and do not publicly explain why they may be slow to provide data or provide incomplete data. (Mihalik Decl. ¶ 25.) Moreover, Mihalik has extensive experience in the quality improvement field and, in working with various health plans, has observed “changes in the use of quality improvement data correlate with changes in the makeup of a health plan's network.” (Mihalik Decl. ¶ 25.) He finds such “changes occur too frequently for it to be chance alone.” (Mihalik Decl. ¶ 25.) Finally, Mihalik notes human behavior supports his opinion: “If a Provider Group has the option to remain with a health plan that is not trustworthy with the Provider Group’s data and the Provider Group can join another health plan that places fewer burdens on the Provider Group’s operations and treats its data confidentially, the Provider Group is more likely to switch its affiliation.” (Mihalik Decl. ¶ 25.)

Given Mihalik’s extensive experience in the quality improvement field and his other expert qualifications, the court credits Mihalik’s opinions, finds them credible. The court disagrees the opinions have no value as speculation.

Based on the foregoing, the court finds disclosure of provider names on VIIP Scorecards would negatively impact Respondent’s VIIP program and interfere with its ability to carry out its duties in improving quality of medical care and providing quality medical services to its members. Since Respondent “serves more than 2.4 million low-income Los Angeles County residents and is the nation’s largest publicly-operated health care plan” (Pet. ¶ 1), the public has a substantial public interest in avoiding these identified negative consequences in a public health care plan and, therefore, in non-disclosure of the provider names of VIIP Scorecards.

“ ‘If the records sought pertain to the conduct of the people's business there is a public interest in disclosure. The weight of that interest is proportionate to the gravity of the governmental tasks sought to be illuminated and the directness with which the disclosure will serve to illuminate.’ . . . [I]n assigning weight to the general public interest in disclosure, courts should look to the ‘nature of the information’ and how disclosure of that information contributes to the public's understanding of government.” (Humane Society of U.S. v. Superior Court (2013) 214 Cal.App.4th 1233, 1268 [emphasis added].)

Importantly here, “for the public interest to carry weight, it must be more than ‘hypothetical’ or ‘minimal.’ [Citation.] Where a requester has an alternative, less intrusive means of obtaining the information sought, the public interest in disclosure is minimal.” (LAUSD, supra, 228 Cal.App.4th at 242.)

Petitioners assert four public interests in disclosure of Provider Group names on the VIIP Scorecards: (1) individual patients can use the VIIP Scorecards to make enrollment decisions;

(2) the press and the public could use the scorecards to ascertain whether certain Provider Groups contributed to violations of state law alleged in an administrative complaint filed against Respondent by the California Department of Managed Health Care (DMHC) and Department of Healthcare Services (DHCS);[6] (3) unredacted scorecards will help determine if Respondent is spending public funds wisely; and (4) unredacted scorecards will reveal the performance of individual Provider Groups and the VIIP program as a whole so the public, researchers, and policy makers can evaluate the program and Respondent’s health care plan.

Petitioners allege “the Scorecards compiled by L.A. Care would provide invaluable information for Medi-Cal patients to enable them knowledgably to choose their providers.” (Pet. ¶ 34.) Respondent argues, persuasively and with authority, that the interest in learning the scores of individual Medical Groups for this purpose is a private one. (Opposition 12:21-24.) That is, the individual interest served is not a public interest.

In analyzing the catchall exemption, “[w]hat is material is the public interest in disclosure, not the private interest of the requesting party. . . .” (LAUSD, supra, 228 Cal.App.4th at 248.) In LAUSD, the Court of Appeal held the interest of parents in obtaining individual teacher scores to select the highest-performing teacher for their children was a private interest. (Ibid.) Similarly here, the interest of Medi-Cal patients in using the scorecards to choose their medical providers is a private one. When the VIIP Scorecards are used for the purpose of selecting a physician, the information does not contribute to the public’s understanding of government.

Further, since the unredacted scorecard applies to the entire Provider Group and not an individual physician, the Provider Group name would provide limited or no benefit to a Medi-Cal patient selecting an individual provider. Pirritano explains:

L.A. Care members must choose or will be assigned an individual physician as their primary care provider (“PCP”); they are not required to choose a Provider Group. Almost 60 [percent] of L.A. Care's members do not even select a PCP and are instead auto-assigned. The VIIP data does not provide quality information about any particular physician. Provider Group quality scores are made up of many distinct medical groups or clinics, each of which may have multiple PCPs on staff. Further, an individual physician may participate in multiple Provider Groups. It is possible that a high quality physician could be a member of a high ranking and low ranking Provider Group, yet the VIIP data for those groups would say nothing about the quality of that particular physician. (Pirritano Decl. ¶ 15.)

Mihalik corroborates Pirritano’s testimony. (Mihalik Decl. ¶¶ 34-36.) Petitioners do not rebut the evidence in reply.

The asserted interest in individual patients using the unredacted VIIP Scorecards to choose medical providers is a private one and does not show a public interest in disclosure. That is, the Provider Group names do not inform on government functioning. Moreover, given that the information requested is for Provider Groups and not individual physicians, even the private interest in disclosure is minimal and not particularly useful.

Interest in Using Provider Group Names on VIIP Scorecards to Evaluate DMHC’s and DHCS’s Allegations Against Respondent

In March 2022, DMHC and DHCS filed accusations against Petitioner seeking $55 million in fines for alleged violations of the Knox-Keene Act and other rules and regulations. (Coursolle Decl. Exh. A.) While Respondent self-reported certain incidents alleged in the accusations, Respondent is challenging the agencies’ actions and proposed fines. The matter is scheduled for administrative trial in the second half of 2024 and remains unresolved. (Mapp Decl. ¶ 4.)

Respondents have repeatedly violated numerous provisions of the Act and the implementing regulations found in title 28 of the California Code of Regulations, including but not limited to violations concerning the handling of enrollee grievances, the processing of requests for authorization (utilization review or utilization management), overseeing and adequately supervising its contracted entities regarding timely access, and the processing of claims. The widespread, systemic, and unrelenting nature of these violations is unprecedented and has caused harm to Respondents’ enrollees. As the regulator of California health care service plans, the Department brings the instant disciplinary action against Respondents seeking a monetary penalty to ensure these violations do not recur, to protect California’s health plan enrollees, and to ensure a stable health care delivery system. (Coursolle Decl., Exh. A at 1.)

The accusation asserts 20 causes for discipline. It also summarizes multiple examples based on consumer complaints to the DMHC illustrating delays in authorization and other enrollee harm. (Coursolle Decl., Exh. A at 7-45.)

In their Opening Brief, Petitioners refer generally to the accusations. They do not explain with any specificity, however, how disclosure of Provider Group names on the VIIP Scorecards would contribute to the public’s understanding of the allegations made in the accusations. (Opening Brief 7:3-25, 25:11-16.) In fact, Petitioners provide no tie between the accusations and the Provider Group names on the VIIP Scorecards.

In her declaration, health care journalist Michelle Levander attests, in pertinent part: “It is entirely possible, for example, that the unredacted scorecards could reveal that the violations that resulted in penalties and sanctions last year were primarily driven by the poor performance of a handful of provider groups that contract with L.A. Care. The unredacted scorecards could also let the Center for Health Journalism analyze how long the problems of particular provider groups had persisted before the investigation began or penalties were imposed. . . .” (Levander Decl. ¶ 21 [emphasis added].)

Lavander’s belief is speculative. She provides no specific examples of how Provider Group names on scorecards would contribute to the specific allegations in the accusations. She does not suggest how Provider Group names would inform on the allegations. She does not identify any particular accusation to suggest how a Provider Group name would inform on the allegations.

the allegations focus on denials and delays of care that directly impacted patient lives and health. For example, the DMHC’s allegation highlights one enrollee whose complaint was cancellation of appointments by her primary care physician (“PCP”). (DMHC Accusation, Ex. A to Coursolle Dec., at 12.) Since one of the scorecard measures is “Adult Timely Care and Service for PCPs,” (Excerpted Scorecards, Ex. 5 to Levander Dec., at []), the scorecards could prove highly relevant to how likely this sort of problem is to occur. DMHC also alleges that a patient with an open wound in October 2020 was unable to get care for that problem as of December 2020 (Coursolle Dec., Ex A. at 11), an allegation to which provider group ratings on “Timelines: Urgent care within 48 Hours” (Levander Dec., Ex. 5 at []) is relevant. (Reply 6:8-19.)

Petitioners refer to the examples of Enrollee J and Enrollee G alleged in the accusation. The relevant allegations in the accusation state, in pertinent part:

35. An enrollee (Enrollee G) filed a grievance on October 27, 2020, regarding an authorization and referral request for wound care. The enrollee, who had an open wound, complained she attempted to call the referral department several times but was having difficulty getting through. On November 30, 2020, Respondent L.A. Care sent the enrollee a Member Grievance Extension Letter. The letter advised Enrollee G it was unable to complete its review by November 26, 2020, but would respond by December 10, 2020. Enrollee G filed a complaint with the Department on December 10, 2020. Respondent L.A. Care responded to the Department on December 21, 2020, and stated that resolution of Enrollee G’s grievance was still pending.

38. An enrollee (Enrollee J) called Respondent L.A. Care on April 8, 2021, and complained about appointments cancelled by her PCP. Respondent L.A. Care sent the enrollee a written grievance response letter on December 1, 2021—207 days late.

39. Respondents’ ongoing backlog continues to add additional cases with untimely resolutions. As of February 14, 2022, in addition to new case, Respondents’ backlog included 2,044 grievances and 0 appeals from the original backlog reported as of June 25, 2021.

These two examples concern consumer complaints related to a call made to the “referral department” and an appointment cancelled by a primary care physician and a grievance. The complaints do not refer to care provided by a Provider Group—they concern Respondent’s administration and grievance process. While the scorecards provide information about timeliness of care from physicians and urgent care within the Provider Groups participating in the VIIP program (see Reply 6:5-19 and Levander Decl. Exh. 5), Petitioners do not explain how Provider Group names on the scorecards would materially support or shed light on the allegations made related to Enrollee G and J. Given the allegations, the Provider Group names provide no insight on the allegations in the accusations.

More generally, Petitioners do not show the unredacted scorecards—Provider Group names—would meaningfully contribute to the public’s understanding of the allegations and issues raised in the accusations. Petitioners do not identify any allegations that discuss any specific Provider Groups. The accusations also summarize relevant evidence and speak for themselves. Any public benefit from reviewing the unredacted scorecards, in order to understand the accusations, is speculative, minimal, and has not been demonstrated by Petitioners. Petitioners’ claim of public interest here is unpersuasive.

Interest in Using Provider Group Names to Evaluate Respondent’s Use of Public Funds and to Evaluate Performance of Individual Provider Groups, the VIIP Program, and Respondent’s Health Plan

The remaining two public interests in disclosure of Provider Group names on VIIP Scorecards asserted by Petitioners are closely related and may be analyzed together. In their Opening Brief, Petitioners summarize the public interests as follows:

With a healthcare program as troubled as L.A. Care’s has been, the need for public scrutiny and understanding is critical. In particular, without the names of provider groups, neither the public, nor researchers or journalists can tell whether the lowest-performing groups are concentrated in a particular geographic area, or whether they have improved over time on any metric (since it is impossible to tell whether the low performers in any given year are the same groups as in other years). (See Levander Dec. ¶ 21; Melnick Dec. ¶¶ 10-11.) Indeed, whether the entire VIIP initiative has been successful at incentivizing improved performance is completely opaque without the names of the provider groups. (See Levander Dec. ¶¶ 18-21; Melnick Dec. ¶ 11.) Moreover, courts have specifically noted the public interest in accountability for the use of public funds. (Opening Brief 21:12-22.)

[W]ith provider group names, researchers could compare how those provider groups’ performance for their Medi-Cal members on certain key indicators compares to their performance for paying members in commercial plans for which performance data is publicly available. This data (alone or in combination with other publicly available information) could be useful in analyzing such things as whether the geographic location of high and low-performing provider groups combined with what is known about the demographics of certain population groups accounts for some discrepancies in results, and why Medi-Cal members select certain primary care doctors or Provider Groups. (Declaration of Glenn, ¶¶ 10-14.) This kind of information would not only be valuable to researchers in better understanding the Medicaid market, but also in furthering our understanding of Medicaid beneficiary behavior, which can ultimately inform policy-making about Provider Group contracting, payment, and marketing. (Reply 6:22-7:10.)

Petitioners rely on the declarations of Michelle Levander, the healthcare journalist and founding director of the University of Southern California Annenberg Center for Health Journalism, and Glenn Melnick, a public policy professor at the University of Southern California and expert on health economics, health finance, health care systems, and managed care to support their position. (Melnick Decl. ¶ 2.) The court has carefully reviewed the declarations, as well as responsive evidence provided in the declarations of Pirritano, Baackes, and Mihalik.

The court finds Levander’s declaration too generalized to support a significant public interest in disclosure.[7] While Levander asserts a public interest in disclosure, she does not explain in any detail how the unredacted VIIP Scorecards with Provider Group names would contribute meaningfully to the public’s understanding of Respondent’s health plan and government function. (See Levander Decl. ¶¶ 17-24.) Levander also does not explain, convincingly, why similar information and public benefit could not be obtained from the redacted scorecards or other publicly available information. (See Levander Decl. ¶ 19.) Levander concedes “L.A. Care reports on many of the metrics contained in the scorecards for the plan as a whole.” (Levander Decl. ¶ 19.) Further, as discussed below, the redacted scorecards—those already provided by Respondent—provide information that may be used by the public to understand the VIIP program and the performance of Respondent’s Provider Groups as a whole.

Melnick provides a somewhat more detailed explanation of how he would use the unredacted scorecards—Provider Group names—to further public understanding of Respondent’s health plan. (Melnick Decl. ¶¶ 9-14.) Of particular note, Melnick states:

In research terms, provider group performance data of the type we are requesting can help construct models that explain performance differences. For example, the Medi-Cal patient population is by definition less affluent than healthcare consumers overall, and better health outcomes often correlate with higher incomes. It is therefore especially important to study what factors influence Medi-Cal patients in selecting provider groups and seeking care, and teasing out through careful research all the factors that influence better or less optimal results. With L.A. Care’s unredacted provider group rankings, we could begin to do this. Researchers could build databases that include provider group level performance measures for different populations such as Medicare and/or commercially insured populations to assess differences and quantify the role that patient characteristics play versus the role that providers and provider groups play in explaining performance differences. (Melnick Decl. ¶ 14 [emphasis added].)

Based on Melnick’s expert opinion, corroborated in part by Levander, the court finds some public interest in disclosure of Provider Group names so that researchers, journalists, and other members of the public could attempt to analyze “whether the geographic location of high and low-performing provider groups combined with what is known about the demographics of certain population groups accounts for some discrepancies in results, and why Medi-Cal members select certain primary care doctors or Provider Groups.” (See Reply 7:3-6.) Such information is of public interest to the extent the information informs policy making and the public’s understanding of the use of taxpayer funds for Respondent’s health plan—that is, government function.

However, as argued persuasively by Respondent, substantial public insight may be obtained solely from the scorecards without Provider Group names and other available information made publicly available by Respondent. (See Opposition 14:12-15-4.) As examples, the redacted VIIP Scorecards show the performance of Provider Groups across all VIIP quality measures and include year-over-year changes for specific Provider Groups beginning in 2015. The methodology for collecting information and calculating scores has been made public and the total amount of public funds spent on VIIP has also been made public. (Pirritano Decl. ¶¶ 7-8, 16-18, Exh. A, E.) Based on this publicly available information, Petitioners may track the performance of specific Provider Groups even though the name of the Provider Groups are redacted. (See Opposition 15:6-14; Pirritano Decl. ¶ 16, Exh. E.)[8] As a result, Petitioners can analyze whether Respondent is achieving its performance goals on a year-over-year basis based on the Provider Group name redacted VIIP Scorecards. (Pirritano Decl. ¶17.)

Furthermore, Petitioners do not show public disclosure of the unredacted scorecards, in itself, would be sufficient for the policy research contemplated by Melnick. Petitioners concede in reply that additional demographic information would be necessary to conduct meaningful policy research. (Reply 7:3-7.) The unredacted scorecards would enable researchers to “begin” building databases and “teasing out through careful research all the factors that influence better or less optimal results. (Melnick Decl. ¶ 14.) However, as attested persuasively by Mihalik, this research “would require access to a range of additional, internal information for each individual Provider Group plus enrollment data, none of which is contained in the VIIP Scorecards.” (Mihalik Decl. ¶26.) “[S]uch studies would rely on information about patient characteristics, the distribution of enrollment, and a range of factors internal to the providers. Again, none of those analysis can be conducted by merely unblinding the provider name.” (Mihalik Decl. ¶ 28.) In reply, Petitioners do not rebut or persuasively address Mihalik’s expert opinions on this issue.

Based on the foregoing, the court finds some public interest in disclosure of the unredacted VIIP Scorecards to support policy research into the factors that influence health care results in Respondent’s plan; public understanding of whether Respondent is spending public funds wisely; and similar issues. However, that public interest is not particularly strong because meaningful public insight into such issues can be obtained from review of the redacted scorecards and other publicly available information. Furthermore, Petitioners do not show that removing the redactions would be sufficient to complete the policy research contemplated by Melnick.

Respondent has shown a compelling interest in non-disclosure of the unredacted VIIP Scorecards. The purpose of the VIIP Scorecards is to provide an internal tool for Respondent to provide feedback to Provider Groups and incentivize them to improve the quality of care. Provider Groups are given assurances of confidentiality when they participate in VIIP. Mihalik’s expert opinion, which is corroborated by declarations of Pirritano and Baackes, and also by common experience, supports the court’s factual finding that various negative consequences to the VIIP program, Respondent’s health care quality improvement efforts, and Respondent’s health plan would likely occur if those assurances of confidentiality are not upheld and the unredacted scorecards—that is, Provider Group names—are disclosed publicly. Since Respondent “serves more than 2.4 million low-income Los Angeles County residents and is the nation’s largest publicly-operated health care plan” (Pet. ¶ 1), the public has a substantial public interest in avoiding these negative consequences and, therefore, in non-disclosure of the unredacted scorecards. The public interest served by non-disclosure of Provider Group names on the scorecards clearly outweighs the public interest in disclosure. Given all of the evidence, there is a clear overbalance in favor of non-disclosure.

As outlined above, some of the interests in disclosure asserted by Petitioners are either private or speculative and minimal. While the court finds some public interest in disclosure to support policy research, journalism, and similar public endeavors to understand Respondent’s health plan and use of taxpayer funds, such interests are reduced because similar benefits can be obtained from review of the redacted scorecards and other publicly available information. Also, Petitioners do not show that removing the redactions would be sufficient to complete or advance the policy research contemplated by Melnick.

The court has considered LAUSD, supra, 228 Cal.App.4th 222, which is cited and relied upon by all parties for support. Although LAUSD is not factually identical, the Court of Appeal’s decision provides helpful and persuasive guidance in analyzing the catchall exemption as applied here. The court disagrees with Petitioners’ assertion “the data plaintiffs seek is analogous to the unprotected school scores, not the individual teacher scores.” (Reply 9:3-4.) Petitioners do not demonstrate the schools at issue in LAUSD were given any assurances of confidentiality related to the Academic Growth Over Time (AGT) scores or there were similar concerns of harm to a quality improvement program, like VIIP, from disclosure of the AGT scores for individual schools. Significantly, the VIIP program applies to Provider Groups and the scorecards do not display performance data for individual medical providers. In that respect, the unredacted AGT scores of individual teachers are somewhat analogous to the unredacted scorecards in this case. Overall, the court finds LAUSD is more supportive of Respondent’s position. To be clear, however, the court has analyzed the catchall exemption and balanced the competing interests at issue here based on the specific facts as presented by the parties.

Based on the foregoing, the court finds a clear overbalance on the side of maintaining the confidentiality of the unredacted scorecards. Respondent has met its burden of proof and established that Provider Group names on the scorecards may be withheld pursuant to the catchall exemption of the CPRA. Accordingly, Respondent is not required to provide the names of the Practice Groups it redacted from the VIIP Scorecards.

Respondent asserted peer review and rate of payment exemptions in its answer as a defense to Petitioners’ claims. Respondent no longer asserts those exemptions and has not attempted to establish the exemptions. Accordingly, such exemptions do not apply here.

Respondent continues to assert the official information privilege under Evidence Code section 1040 and the trade secret privilege. The balancing test for Evidence Code section 1040 is the same balancing test required in Government Code section 7922.000. (See American Civil Liberties Union of Northern California v. Superior Court (2011) 202 Cal.App.4th 55, 68-69.) For the reasons discussed above and also as argued in opposition, the court finds Respondent met its burden on the official information privilege.

As Respondent’s non-disclosure is supported by two CPRA exemptions, the court need not reach Respondent’s contention the information sought is exempt as a trade secret as well.

[1] As L.A. Care has produced the performance score cards to Petitioners, the issue presented is whether the names of the individual providers on the performance score cards must also be disclosed.

[2] The court generally refers to IPGs and PPGs together as Provider Groups.

[3] Mihalik’s expertise, among other things, relates to performance measurement and quality assessment and improvement for health care organizations. (Mihalik Decl. ¶ 7.)

[4] Petitioners reference service two types of service agreements—fee for service and shared risk agreement. (Coursolle Decl., Exh. J, K, respectively.) Respondent provides evidence Respondent uses five “general forms with slight variations between each provider group.” (Lageson Decl. ¶ 3.)

[5] Given the service agreements’ apparently conflicted provisions on confidentiality, Provider Group reliance on oral representations from Baackes would be reasonable.

[6] While there is evidence of the accusation filed by DMHC, the court cannot locate any evidence to support Petitioners’ claim DHCS filed an accusation. However, Respondent acknowledges actions by both agencies. (Opposition 6:1-3; Mapp Decl. ¶ 2.)

[7] Levander also discusses how Provider Group names could be used to help individual consumers select medical providers. (Levander Decl. ¶¶ 22-23.) As discussed earlier, the interest is a private one and speculative as well given that the Provider Group names do not reflect particular physicians within the Provider Group.

[8] Petitioners do not persuasively respond to or address these arguments and evidence in reply. (Reply 5-9.) In particular, Petitioners do not rebut the evidence and argument that the performance of individual Provider Groups can be tracked from year to year from the scorecards, albeit with the Provider Groups’ names redacted.