TRANSPARENCY TUESDAY: For teaching hospitals, a dose of sunshine is just what the doctor ordered



Anyone who spends billions of dollars in taxpayer money needs watching. People who are convinced they are spending the taxpayers' billions doing the Lord's work saving lives need extra-close watching, because they are able to convince themselves that any amount of corner-cutting is justified by the importance of their mission.

America's teaching hospitals owe their existence to government subsidies -- directly, to the tune of $10.9 billion a year from Medicare to subsidize medical education, and indirectly, to the largesse of the colleges that host them, receiving everything from free land to subsidized insurance to participation in state retirement plans. When it suits the purposes of these university-affiliated hospitals -- when they need bond funding to build or expand their facilities, for instance -- they embrace their identities as government agencies.

But just try bringing a television camera into a teaching hospital's board meeting, and watch that "government agency" hat fly off. Because teaching hospitals typically are chartered as corporations legally separate from their affiliate universities, some have stubbornly insisted that they are private businesses and not extensions of the public universities off which they subsist -- and, in their view, this separation exempts them from the disclosure laws that apply to other state agencies.

Fortunately, some government officials are looking behind the plywood Hollywood movie-set front that says "private corporation" and are seeing university hospitals for what they are: Public agencies with public disclosure responsibilities.

Last week, Kentucky Attorney General Jack Conway issued a legal opinion that University Medical Center, an affiliate of the state-funded University of Louisville, is an arm of state government and must comply with the Kentucky Open Records Act.

While an attorney general's opinion does not carry the legal force of a court ruling, it has significant persuasive force and often has the practical effect of establishing the authoritative understanding of state law.

In his Oct. 6 ruling, Conway said that the hospital, while set up as a nonprofit entity, is required to honor public-records requests because it was established by, and is controlled by, a public university.

Although Conway's interpretation is of course not directly applicable outside of Kentucky, its reasoning is on-point to any university-created and university-governed hospital, and the argument is worth making whenever journalists are denied access to records and meetings about hospital operations (with the understanding that certain information, such as individual patient records, is legitimately confidential even at a 100% public hospital).

Even if you are not in Kentucky, state laws vary widely as to the public's right of access to hospital records and meetings. In some states, the fact that a hospital is answerable to a public hospital authority is enough to open at least some of its meetings and records to the public. Also, if copies of the hospital's otherwise-private documents are in the hands of government officials, such as the university's vice president for health services, then those documents may be obtainable indirectly through a request to the university itself.

Tagged: FOI, public records, Transparency Tuesday