Nursing homes are extensively regulated to ensure resident safety, and those regulations are enforced in the nursing home survey process. The surveyors are employed by the Washington State Department of Social and Health Services (“DSHS”). The surveyors gather medical records and interview facility employees following an allegation of poor care or neglect of a resident. The notes and records gathered are referred to as the surveyor’s “working papers.”  These records often contain critical information in lawsuits against nursing homes alleging abuse or neglect.

DSHS has long withheld working papers in response to requests under the Washington State Public Records Act and redacts the records that they do produce. I believe that they should disclose the working papers and filed a lawsuit to force them to do so.

In the trial court, DSHS relied on the “Touhy” regulations as its basis for withholding the working papers, 45 CFR § 2.1, claiming that the surveyor who created the working papers was an employee of the federal government.  Federal employees are not subject to the state Public Records Act. DSHS also stipulated that the surveyor was not an employee of the federal government. The trial court avoided the issue of whether the surveyor was a federal employee by correctly noting that 45 CFR § 2 only applied to “proceedings,” and a state records request was not a proceeding.  The trial court ruled in my favor and ordered disclosure of the working papers.

DSHS appealed, resulting in the attached opinion. The court of appeals also avoided the question of whether a state surveyor is a federal “employee,” which was an important question I had hoped to get addressed in the lawsuit. But I prevailed in the lawsuit on a narrow ground that the federal government’s own regulations clearly allowed for state procedures such as the Public Records Act to apply to the request for the working papers.

Here is a link to the opinion in Hornbuckle v. Washington State Department of Social and Health Services, Cause No. 82675-1-I: https://www.courts.wa.gov/opinions/pdf/826751.pdf