When the Indiana Family and Social Services Administration argued to the Indiana Supreme Court on Dec. 12 that a white paper submitted to the agency as part of a Medicaid settlement negotiation was not subject to public disclosure, the justices appeared skeptical, saying FSSA’s interpretation of the exemption provision was so broad it would swallow the statute.

In FSSA v. Robert E. Saint, 23A-MI-02742, the state agency asserted the white paper was exempt under the deliberation-material exception of Indiana’s Access to Public Records Act. The document was created by HealthNet’s legal counsel in a dispute over a reimbursement of nearly $4.6 million in Medicaid supplemental wraparound payments that the private health-care provider believed it was owed. FSSA has described the white paper as a “memorandum outlining HealthNet’s legal position for settlement purposes” and said it was “used and considered” when the agency was deciding whether to settle a whistleblower case.

“This document is subject to withholding because it’s an opinion document that’s advising the agency about how to decide a matter … in which both entities have a contract,” Benjamin Jones, who is the assistant section chief of civil appeals in the Indiana Attorney General’s office and is representing FSSA, told the Supreme Court.

However, Saint, an Indianapolis attorney representing himself in this case, countered the FSSA has not shown the white paper was part of the deliberative process or that its disclosure could harm the agency’s decision making. Although he acknowledged allowing state government employees to have free discussions and deliberations when making decisions is good public policy, Saint stated the white paper was submitted by a third party, HealthNet, to explain why it wanted the Medicaid reimbursement.

“I simply asked FSSA … for a white paper that had been prepared by a third party, a health-care provider who was seeking Medicaid benefits,” Saint said during oral arguments. “I did not ask for any deliberations. I did not ask for how the white paper was being considered by FSSA. I didn’t ask for any internal communications, just the white paper from the moment it left (the HealthNet attorney’s) office.”

The white paper was connected to two whistleblower lawsuits in which Saint was representing the plaintiffs. His clients eventually settled their cases, but Saint continued to pursue the document “as a member of the public.”

In September 2023, the Marion County Superior Court ordered FSSA to release the white paper. A split Court of Appeals of Indiana affirmed the order in June 2024, finding the deliberative-material exception in APRA did not apply because the document was “communicated by a private healthcare provider to a state agency.”

The Indiana Supreme Court did not grant transfer but asked to hear oral arguments in the case. Now the high court can accept transfer and file an opinion or deny transfer and let the Court of Appeals’ opinion stand.

Justice Geoffrey Slaughter was not present at the oral arguments.

Clarity sought on exemption provision

Jones urged the justices to take the case and issue a ruling that provides clarity on APRA’s provision in Indiana Code section 5-14-3-4(b)(6), which exempts from disclosure “records that are intra-agency or interagency advisory or deliberative material, including material developed by a private contractor under a contract with a public agency, that are expressions of opinion or are of a speculative nature, and that are communicated for the purpose of decision making.”

For more than 20 years, the Court of Appeals, Jones said, has been unable to reach a consensus about what the provision means and how it should be applied. The appellate court’s decisions are divided between a broad application that keeps from public view any documents used to make a decision and a stricter approach that covers only the documents containing opinion and speculation for decision making, he said.

“At the end of the day, a definitive decision from this court … would provide the opportunity for the executive branch to know (which submissions are disclosable) and the legislative branch to take look at how this court interprets it and weigh in,” Jones said.

Under questioning from the justices, Jones asserted that regardless of whether the Court of Appeals’ broad or strict approach was applied, HealthNet’s white paper was protected from public disclosure. He said HealthNet had a contract with FSSA and the paper was an “opinion document” that advised the state agency how to decide a matter about Medicaid reimbursement.

However, Chief Justice Loretta Rush told Jones he was taking the exemption provision a “step too far.” HealthNet was under contract to provide a service, not produce deliberative materials, she said.

Jones maintained the white paper was covered by the APRA exemption because not only was HealthNet under contract when the document was produced, it included speculation and opinion intended to guide FSSA’s decision.

“What the exemption focuses on is the content of the document and how it is used, not who authored it,” Jones said.

Rush pushed back, saying that extending the exemption to cover any document that is used would “swallow the rule.”

“You want us to take it even broader,” Rush said of interpreting the APRA exemption, “and say, ‘If we used it, it’s out. If we look at it, if it entered our thought process at all, it’s out.’”

Jones pointed to precedent from the Court of Appeals, which ruled a document had to be used for decision making to be protected from public disclosure. The exemption is discretionary, he said, so the state agency could release any records or papers that were not used in the decision-making process.

In this case, Jones said FSSA has shown the white paper was addressing the unpaid Medicaid claims that were the focus of federal litigation and at the center of the dispute between the agency and HealthNet. “So I think they did establish it was used in determining what to do when evaluating those claims,” he said.

The justices did not press Saint as hard as Jones, with Rush remaining silent and not asking any questions while he argued. In fact, about four minutes shy of the 20 minutes he was allotted, Saint told the court he had presented his arguments and was preparing to sit down when the justices asked a few more questions.

Saint asserted the white paper should be disclosed because it was issued in a dispute between HealthNet and FSSA, and it involves the publicly funded Medicaid program. Also, he said, precedent has not expanded the deliberative material provision to include almost any document that was submitted by a third party who is not under contract as an attorney to provide advice.

“The most concerning thing that I see in terms of the state’s argument is we don’t want to be in a position where we have to rely upon an individual in state government to make determinations as to whether this documents falls under the deliberative material statute,” Saint said.

On his rebuttal, Jones reiterated the need for the Supreme Court to issue a ruling in this case.

“Executive branch officials shouldn’t have to guess about what’s confidential, about which Court of Appeals case applies, (or about) what rules apply to which document,” Jones said, adding that the decision-makers will then know “who they communicate with and solicit opinions from, knowing that that will be confidential.”