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In re Motion to Compel Compliance with Subpoena Directed to the Minnesota Department of Health

United States District Court, D. Minnesota

October 3, 2019

In re Motion to Compel Compliance with Subpoena Directed to the Minnesota Department of Health, Barbara Pivec, Trustee for the Next of Kin of Evelyn Schweim, deceased Plaintiff,
All Temporaries Midwest, Inc.; Francisco Javier Ramirez; The Evangelical Lutheran Good Samaritan Society, d/b/a Good Samaritan Society-Redwood Falls Defendants, U.S. Department of Health and Human Services Intervenor.

          Andrew D. Gross, Esq., Joel E. Smith, Esq., and Kara K. Rahimi, Esq., Kosieradzki Smith Law Firm, counsel for Plaintiff.

          Jennifer L. Bullard, Esq., John Lawrence Ackley, Esq., and Michelle Rognlien Gilboe, Esq., Bowman & Brooke LLP; Kate Clarice Johnson, Esq., and Nicole L. Brand, Esq., Meagher & Geer, PLLP, counsel for Defendants.

          Pamela Marentette, Assistant United States Attorney, counsel for Intervenor


          DONOVAN W. FRANK United States District Judge.


         This matter before the Court on Intervenor U.S. Department of Health and Human Service's (“DHHS”) motion to quash the subpoena issued by Plaintiff Barbara Pivec (“Pivec”) on March 8, 2019 to the Minnesota Department of Health. (Doc. No. 13.) For the reasons set forth below, the Court denies the motion.


         I. Facts

         Pivec is the trustee and next of kin of Evelyn Schweim (“Schweim”). (Doc. No. 1 ¶ 1 (“Removal”).) Schweim was an elderly resident of Good Samaritan Society- Redwood Falls (“Good Samaritan”) nursing home who died after suffering injuries while under its care. (See Doc. No. 24 (“Pl. Opp.”) at 2.) On September 25, 2017, the Minnesota Department of Health (“MDH”) conducted a maltreatment investigation concerning allegations of neglect. (Doc. No. 17 (“Krueger Decl.”) ¶ 4.) The parties agree that the investigation was conducted pursuant to both federal and state law. (Id. ¶¶ 5-6; see also Pl. Opp. at 5.)

         The investigation consisted of an on-site visit, a document review, and recorded interviews of the other residents, the victim, the alleged perpetrator, and four additional facility employees. (Krueger Decl. ¶¶ 4, 9-11, 15.) Prior to conducting the interviews, the investigator either read or provided copies of a “Tennessen Statement” informing the interviewees of the purpose of the investigation, the right to be interviewed in private, and that the information provided may be used in an investigative report. (Id. ¶¶ 16-17, Doc. No. 17-4, Ex. 4 (“Tennessen Statement”) at 1.) The Tennessen Statement expressly provided:

The Minnesota Department of Health's Office of Health Facility Complaints conducts investigations relating to specific matters, frequently regarding Vulnerable Adults, in response to complaints and/or reports of maltreatment. The purpose of talking with you is to learn information that will be useful in helping to make a fair determination about the matter that is being investigated. You have a right to be interviewed in private. It is the practice of this Office to record all interviews. Information that you provide may be used in an investigative report.

         (Tennessen Statement at 1.) Notwithstanding, the Tennessen Statement did not warn each interviewee that his or her identity might be produced in lawsuits between private parties. (See id.)

         The investigation resulted in three separate reports-two state, and one federal. (See Marentette Decl. 1 ¶ 4, Doc. No. 2-2, Ex. 2, Pt. 1 at 29-35 (“MN Report 1”), 79-99 (“MN Report 2”); Krueger Decl. ¶ 12, Doc. No. 17-2, Ex. 2 (“Federal Report”) at 1-12.)[1]All three reports showed violations or areas of noncompliance. (MN Report 1 at 29, 31; MN Report 2 at 99, Krueger Decl. ¶ 13, Doc. No. 17-3, Ex. 3 (“Federal Summary”) at 1- 7.).)

         On February 20, 2018, Pivec requested MDH to provide “copies of all the state documents, including uncensored copies of the tapes of witness statements, gathered pursuant to the state investigation.” (Doc. No. 18 (“Marentette Decl. 2”) ¶ 3, Ex. 1 (“Request”) at 1.) The Request also sought access “to accurate and complete copies of the federal documents gathered pursuant to the federal investigation.” (Id.)

         MDH forwarded the Request to the Centers for Medicare and Medicaid Services (“CMS”) which processed the Request under the Freedom of Information Act (“FOIA”) pursuant to 5 U.S.C. § 552(b). (Marentette Decl. 2 ¶ 4, Ex. 2.) CMS responded to the Request on May 10, 2018 by producing 137 unredacted pages of records, withholding 45 pages, and redacting 158 pages. (Id. ¶ 5, Ex. 3 (“FOIA Response”).) The FOIA Response denied access to certain documents pursuant to FOIA exemptions 6 and 7 to protect the identities of facility residents, family members, complainants, state personnel, and facility staff. (Id. at 1 (citing 5. U.S.C. §§ 552(b)(6), 552(b)(7)(c).) The FOIA Response advised Pivec that she had a right to appeal if she felt that the withheld information should not be exempt from disclosure. (Id. at 2.) Pivec did not appeal.

         On July 3, 2018, Pivec filed a wrongful death action in the Fourth Judicial District, Hennepin County District Court, captioned, Barbara Pivec, Trustee for the Next of Kin of Evelyn Schweim, Deceased v. All Temporaries Midwest, Inc., et al., Civ. No. 27-18-0885. (Doc. No. 2 (“Marentette Decl. 1”) ¶ 3, Ex. 1.) On March 8, 2019, Pivec served a subpoena on MDH issued by the Hennepin County District Court. (Marentette Decl. 2 ¶ 6, Ex. 4 (“Subpoena”).) The Subpoena ordered MDH to produce, among other things, the unredacted transcripts of the interviews, the audio recordings of the interviews, and the identities of the individuals referenced in its investigation. (Id.)

         On March 20, 2019, MDH informed Pivec that because MDH “investigates alleged violations of law and rules in health care settings for both the state of Minnesota and the Centers for Medicare and Medicaid Services, ” it forwarded the subpoena to CMS for processing pursuant to the FOIA. (Id. ¶ 7, Ex. 5 at 1.) On May 8, 2019, CMS informed Pivec that “after careful review of the document submitted to this office, it has been determined to withhold the materials in their entirety and deny your request due to an incomplete HIPAA compliance authorization.”[2] (Id. ¶ 8, Ex. 6 at 1 (“Second FOIA Response”).) The Second FOIA Response also advised Pivec of her right to appeal the decision. (Id. at 2.) On May 14, 2019, Pivec filed a motion to compel against MDH for the subpoenaed records.[3] (Marentette Decl. 1 ¶ 4, Ex. 2.)

         On May 20, 2019, the parties stipulated to, and the Honorable Patrick D. Robben approved, DHHS's limited intervention as a right pursuant to Minn. R. 24.01 with respect to the subpoena and motion to compel directed at MDH.[4] (Marentette Decl. 2 ¶ 10, Ex. 8.) DHHS removed the subpoena and motion to compel to this Court on May 31, 2019 pursuant to 28 U.S.C. § 1442(a)(1).[5] (Removal.) The state court retained jurisdiction with respect to the remainder of the wrongful death suit. (Marentette Decl. 2 ¶ 11, Ex. 9.)

         II. Statutory and Regulatory Background

         The investigation of federally-certified Good Samaritan nursing home was conducted pursuant to both state and federal law. (Krueger Decl. ¶¶ 4-7.) The Minnesota Vulnerable Adults Act contains specific instructions and requirements for investigating alleged maltreatment.[6] See Minn. Stat. § 626.557, subd. 12.b. Federal requirements for participation to receive reimbursement as skilled nursing facilities from Medicare and Medicaid also require periodic surveys. Title XVIII of the Social Security Act (“SSA”), 42 U.S.C. § 1395, et seq., SSA Title XIX, 42 U.S.C. § 1396, et seq.; 42 U.S.C. §§ 1395i-3(b)-(d) & 1396r(b)-(d); 42 C.F.R. Pt. 483, subpt. B; 42 C.F.R. Pt. 488.

         To maximize efficiency, Section 1864 of the SSA authorizes DHHS to enter into agreements with state health agencies to survey nursing homes to monitor and certify facilities' compliance with Medicare requirements. 42 U.S.C. § 1395aa. DHHS and CMS have adopted regulations and guidance establishing detailed requirements for state agencies conducting the survey and certification obligations. See, e.g., 42 C.F.R. Pt. 488; see also State Operations Manual, Appendix P. (Rev. 174, Dec. 8, 2017), CMS also provides training in the conduct of surveys. 42 U.S.C. § 1395i-3(g)(1)(E).

         MDH entered into a Section 1864 agreement with DHHS on June 18, 1985, effective October 1, 1985.[7] (Krueger Decl. ¶ 2, Doc. No. 17-1 Ex. 1 (“Agreement”) at 16.) The Agreement provides that the functions to be performed by the state include, “surveying for the purpose of certifying to the [DHHS] Secretary compliance or non-compliance of providers and suppliers of services and resurveying such entities, at such times and manner as the [DHHS] Secretary may direct.” (Agreement at 22.) The Agreement further provides that “validation surveys [shall be conducted] on a selected sample basis, or because of substantial allegations of the existence of significant deficiencies.” (Id. at 23.) Article II(H) of the Agreement further provides that:

In the performance of the functions described in this Agreement, the State acts on behalf of the [DHHS] Secretary as a Federal contractor, carrying on [ ] the administrative responsibilities imposed pursuant to law by applying and enforcing Federal standards. The Secretary, however, is the real ...

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