Frost Brown Todd LLC v. Ctrs. for Medicare & Medicaid Servs., No. 21-2784, 2024 WL 450056 (D.D.C. Feb. 5, 2024) (Chutkan, J.)

Frost Brown Todd LLC v. Ctrs. for Medicare & Medicaid Servs., No. 21-2784, 2024 WL 450056 (D.D.C. Feb. 5, 2024) (Chutkan, J.)

Re:  Six requests for records concerning Medicare program

Disposition:  Granting in part and denying in part defendant’s partial motion to dismiss

• Litigation Considerations, Exhaustion of Administrative Remedies; Procedural Requirements, Proper FOIA Requests:  The court finds that “[b]ecause Plaintiff failed to reasonably describe the records it sought in these requests, the requests did not comply with FOIA, and Plaintiff therefore failed to exhaust its administrative remedies.”  “Many of Plaintiff’s requests fail to reasonably describe the records sought because they seek all materials related to a certain topic.”  “Paragraphs three through seven in Plaintiff’s first request seek ‘[a]ll documents produced or disclosed’; ‘[a]ll interrogatory answers, deposition testimony, or other sworn statements’; and ‘[a]ll documents that [the Centers for Medicare and Medicaid Services (“CMS”)] has produced’ relating to litigation, requests, or investigations regarding whether invalid or unsupported diagnosis codes or RAPS data by [Medicare Advantage Organizations (“MAOs”)] or MAO providers violated the False Claims Act.”  “All fourteen subsections of Plaintiff’s second request seek ‘[a]ll documents’ relating to Medicare attestation and compliance; the fee-for-service adjuster; and reconciliation payments.”  “Plaintiff’s third request seeks ‘[a]ll training-related documents,’ ‘[a]ll documents related to internal and external policies and procedures,’ ‘[a]ll communications between any MAO and CMS,’ and ‘[a]ll documents’ regarding specific topics relating to MAOs and diagnosis codes.”  “Similarly, the fourth request seeks ‘[a]ll documents CMS created, received, evaluated and/or relied upon,’ ‘[a]ll documents relating to CMS’s review, analysis, or receipt,’ and ‘[a]ll documents’ related to the Medicare Managed Care Manual; data diagnosis filtering logic; Risk Adjustment Data Validation audits of MAOs; Risk Adjustment Participant Guides; MAO bids; and coding intensity adjustments CMS applies to MAOs.”  “Plaintiff’s fifth request seeks ‘[a]ll documents’ related to twelve subsections under the categories of overpayments to MAOs and the Social Security Act's actuarial equivalence requirement.”  “Finally, Plaintiff’s sixth request seeks ‘[a]ll documents’ relating to another twelve subsections, this time under the categories of retrospective reviews of medical charts by MAOs, data work groups, and CMS’s decision not to finalize a proposed chart review rule.”  “Each of these requests is too general and broad to reasonably describe the records sought and lacks the required ‘name,’ ‘location,’ and in many cases, also ‘years at issue’ of the records, . . . and ‘require[s] the agency to locate . . . [a] vast quantity of material[]’ . . . .”  “Because these requests fail to reasonably describe the records sought, Defendant was never required to disclose any records in response, and Plaintiff has failed to exhaust its administrative remedies.”
  
  “In fact, Plaintiff does not argue that these requests reasonably describe the records sought, only that it would be improper for the court to decide the reasonable description question at the motion to dismiss stage.”  “That argument, however, ignores FOIA’s exhaustion requirements.”  “By requiring that a plaintiff make a valid request and the defendant withhold records to exhaust administrative remedies, . . . FOIA requires courts to analyze whether a valid request was made – and thus, whether a request reasonably describes the records sought – at the motion to dismiss stage . . . .”
  
  “Plaintiff also points to two regulations to argue that Defendant cannot challenge whether the requests reasonably describe the records sought for the first time at this stage.”  “The first regulation provides that if CMS ‘determines that a request does not meet these requirements,’ it ‘will attempt to contact’ the requester ‘if possible.’”  “But this regulation does not provide that an agency waives any argument as to the validity of a FOIA request if it does not contact the requester.”
  
  Finally, the court finds that “[b]ecause Plaintiff never made a valid FOIA request under paragraph 3, Defendant was never required to comply with the time limit for issuing adverse determinations in § 552(a)(6)(A), and the constructive exhaustion waiver in § 552(a)(6)(C) is inapplicable.”
   
• Litigation Considerations, Pattern-or Practice Claims:  The court holds that “Plaintiff’s allegation that Defendant has a pattern or practice of unreasonably delaying in disclosing non-exempt documents is sufficient to survive a motion to dismiss.”  “Plaintiff alleges that Defendant ‘engaged in unreasonable delays in disclosing non-exempt documents,’ . . . ‘engages in repeated and long delays as a pattern or practice while interacting with [other] FOIA Requestors, . . . and that Plaintiff’s ‘current FOIA requests have been, and are likely to continue to be, subject to that same practice,’ . . . .”  “Plaintiff’s allegations fulfill the first element of a pattern or practice claim by asserting that Defendant unreasonably delays disclosing documents not only in this case, but also in cases involving other requestors.”  “Plaintiff’s allegations also fulfill the second element of a pattern or practice claim by contending that Plaintiff’s FOIA requests will likely continue to be subject to this practice.”  “Defendant’s arguments to the contrary are unpersuasive.”  “Defendant counters that [examples of delays with other requesters] ‘do not establish that the delays were part of a pattern and practice as opposed to mere isolated mistakes.’”  “But, in doing so, it mistakes the burden at the motion to dismiss stage with the burden at summary judgment[.]”  “At [the motion to dismiss] stage . . . it is sufficient that Plaintiff has pleaded that Defendant engages in unreasonable delays.”  “[Furthermore,] Plaintiff was not required to plead that Defendant did not make a mistake or error, or that Defendant’s unreasonable delays were deliberate.”