DSS Admits Public-Records Error with Release of Doctors Excluded from Medicaid
By Cory Allen Heidelberger
December 28, 2013
Ken Kramer’s public-records tussle with the Department of Social Services shows South Dakota state government’s unhealthy addiction to secrecy.
The Florida man made a simple request last summer: he wanted to know the name of every doctor South Dakota had kicked out of Medicaid since 2010. Kramer maintains a website to publish information about fraud and abuse in psychiatry. The Medicaid information helps him identify psychiatrists who take advantage of their patients and the public.
Kramer had little trouble getting the Medicaid-exclusion records from other states. South Dakota was the only state that told him that list of excluded doctors was secret. According to e-mails Mr. Kramer sent to various state officials, we gave him the runaround. DSS officials told him the exclusion of doctors from payment by a public program is not a public record. DSS told him to look for the excluded doctors on a federal database, but finding excluded doctors would require obtaining a list of every doctor in South Dakota and then entering each doctor’s name.
On November 1, over three months after their initial response, DSS Director of Legal Services Daniel J. Todd cited South Dakota public records statutes 1-27-1.5 and 1-27-4 to justify withholding these records. The latter refers to the format of open records, which seems not to over DSS any cover for refusing to provide the requested record in any format. The former provides the lengthy list of exceptions South Dakota makes to keep its secrets. The only faintly relevant exception appears to be paragraph 2, which protects medical records… but medical records tell the specific ailments and treatments of specific patients. Kramer wasn’t asking for medical records. He wasn’t even asking for payment records. He was asking for a list of doctors who could not receive payment from a public program.
After enlisting the help of Rep. Stace Nelson (R-19/Fulton), Kramer got results. On December 19, Mr. Todd told Mr. Kramer that DSS had erred. DSS sent Kramer the names of four doctors—Jeffrey Buckau, Brian O’Connor, Joshua Payer and Edward Wegrzynowicz—excluded from South Dakota Medicaid payments since 2007.
The public nature of the information Kramer wanted seems clear. Citizens covered by Medicaid have an interest in knowing whether the doctor they want to see can accept payment from Medicaid, just as folks with private insurance have an interest in knowing whether their doctors are in their insurer’s network. Citizens also have a reasonable interest in knowing whether a doctor has behaved so egregiously as to get kicked out of Medicaid. The state had no problem publicizing the fact that it suspended Medicaid payments to Dr. Annette Bosworth during the litigation over her overbilling of Medicaid, and her accounting errors appear to have done less harm than Buckau’s, O’Connor’s, Payer’s, and Wegrzynowicz’s misdeeds.
Why would the state withhold this information? The only explanation I can come up with is that too many officials’ default response is to withhold information, to think that telling the public what’s going on will harm someone rich or powerful who shouldn’t be bothered, and to view citizens seeking information as troublemakers. Unfortunately, that means folks like Ken Kramer and Rep. Stace Nelson really do have to make some trouble to shake loose information that belongs to the public.