A bid by public hospitals in Georgia to shed some legal shackles from the past, including compliance with open meetings and open records laws, has prompted a fight with the press over access to information.
At issue in a case scheduled to be heard late last week before the state Court of Appeals is whether hospitals built with millions of dollars of tax money but now managed by private alliances instead of public authorities must comply with the state's "sunshine law."
"I think it is perhaps the most important open records, open meetings case we've had in a long time," said Otis Brumby, publisher of the Marietta (Ga.) Daily Journal.
Brumby's newspaper is seeking an order forcing Promina Health System, the largest not-for-profit health alliance in Georgia, to open its meetings and records to the press and public.
The alliance had promised voluntary compliance with the law, but Brumby said that leaves it free to decide for itself what information to make public or to withhold.
Many other news organizations, including the Associated Press, have filed briefs supporting the newspaper, as has state Attorney General Michael Bowers.
Promina, formed last year, is a private, not-for-profit holding company that manages under a lease arrangement the public hospital systems of Cherokee, Cobb, Douglas, Gwinnett and Paulding counties, along with private Piedmont Hospital in Atlanta.
Between them, the 10 hospitals under Promina's control have 2,300 beds and a medical staff of 2,500.
Although hospital authorities must comply with most of the provisions of the state's open meetings/open records law, Promina argues it is exempt because it is a not-for-profit organization, and such groups are subject to the law only when they derive more than one-third of their income from tax dollars. Promina says less than 2% of its funding comes from taxpayers.
Bowers contends Promina is subject to the sunshine law because it is fulfilling the role of the public authorities from which it has leased the hospitals.
"This business reorganization does not shield the operations of that hospital from the public," Bowers said in a legal brief.
A Superior Court judge in Cobb County ruled for the newspaper in February, ordering the alliance to open its meetings and records.
The case is being closely watched. "I don't think it was ever the intent of our Legislature to have taxpayers underwrite the cost of creating public healthcare facilities, only to have those facilities quietly mutate into private companies no longer accountable to the public," said Hyde Post, an assistant managing editor of the Atlanta Journal-Constitution and president of the Georgia First Amendment Foundation.
Jack Shroder, an attorney for the Georgia Hospital Association, said, "There are real business survival reasons why Promina and other hospital authorities are doing what they are doing, and it's not to hide from the public-it's to survive in today's marketplace."
Public hospitals contend they cannot compete effectively with private hospitals in the managed-care market because the rules under which they were established-the 50-year-old Public Hospital Financing Act-prohibit them from doing some things.
Under that law, for example, public hospitals can't provide services outside of their own county or rent medical equipment to patients for at-home recovery.
To circumvent those and other profit-making restrictions, public authorities increasingly have leased their hospitals for $1 a year to a private not-for-profit organization. By one count, 23 once-public hospitals in Georgia have reorganized that way, including those allied with Promina.
Whether reorganization exempts those hospitals from the sunshine law is the question before the Court of Appeals.
Promina contends the hospitals are exempt and warns that if the Court of Appeals fails to recognize that, the public interest will be poorly served.
"Requiring the state's nonprofit healthcare systems to disclose sensitive and proprietary information, when their competitors are not required to do so, would unfairly tip the competitive scales in favor of those competitors," Promina argued in court papers.
The newspapers and the attorney general say the hospitals aren't exempt.
Public hospitals already enjoy "significant protection" under the sunshine law for their strategic plans, Post said. "If anything, I'd say the protections are already too broad and certainly would suffice."
`I think it's perhaps the most important open records, open meetings case we've had in a long time.'