Category: State Talk

By Valerie Newberg

Public records law, which is also recognized in select states as the Freedom of Information Act/Law, Sunshine Law, Right to Know Law or Open Records Law, is a tool intended to ensure government transparency and accountability by mandating the storage and release of documents to members of the public.

There are wide variations in each state’s version of the law. In certain states, agencies are required to respond within a timeframe ranging from three days to 12 weeks, while others designate maximum fees agencies may charge for the reproduction and transfer of records. Additionally, select states apply fees or criminal penalties to government agents who fail to comply with records requests. Some data is typically exempt from public records requests, including information that would constitute an invasion of privacy for institutions like hospitals, law enforcement agencies and schools, trade secrets, building maps, emergency procedures and firearms records.

Most laws are broadly inclusive of the state agencies subject to public records requests, with at least 19 states also setting statutory guidelines that explicitly require the category of quasi-governmental bodies, government sponsored entities and quasi nongovernmental agencies to comply with public records requests. For at least 12 states, court rulings have set criteria for nongovernmental bodies required to provide requested records. These bodies are typically defined as private entities including nonprofits, for-profits, tax districts and privatized government agencies that are partially supported by tax funding, use state resources, or perform some duties of the state. For example, Texas law defines governmental bodies as including nonprofit corporations that provide water and wastewater services, thus serving a public function.

Inclusion of Nongovernmental Bodies via Statute
Nineteen state statutes reference the participation of nongovernmental bodies in open records requests, while also providing financial or functional criteria for their inclusion. These states include:

• California.
• Delaware.
• Georgia.
• Indiana.
• Iowa.
• Kansas.
• Kentucky.
• Louisiana.
• Michigan.
• Missouri.
• Nebraska.
• North Dakota.
• Oklahoma.
• Rhode Island.
• South Carolina.
• Texas.
• Utah.
• Virginia.
• Wisconsin.

Financial standards for inclusion range from receipt of any government funding, like in North Dakota, to receipt of 33 ⅓% of its general operating budget from public funding, like in Georgia.

Functional guidelines are used in some states to determine a state’s inclusion; Missouri’s Sunshine Law states that a public body is one that performs a governmental function or enters into contracts with the government. States like Delaware combine these criteria, defining applicable nongovernmental entities as those who receive or disperse public funding, or who advise and contract with official government agencies.

Additionally, while Idaho does not explicitly include nongovernmental bodies in its statute, the state prohibits agencies from entering into contracts with them to avoid open records requests.

Inclusion of Nongovernmental Bodies via the Courts
In many states where public body or public entity is vaguely defined in the statute and may not explicitly include private organizations, the judiciary has settled disputes over the inclusion of these terms. In such legal decisions, judges typically apply a test consisting of between four and nine parts that set criteria for the entities’ definition as a public body. These tests were first employed by federal courts in clarifying application of the Federal Freedom of Information Act to nongovernmental entities but have since served as guidance for interpretation in state courts.

Connecticut, Ohio, Tennessee, Vermont and Washington use a four-part test defining nongovernmental agencies according to: (1) whether the entity performs a governmental function; (2) the level of governmental funding; (3) the extent of governmental involvement or regulation; and (4) whether the entity was created by the government.

West Virginia uses a five-part test that considers the composition of the entity’s governing board and if the entity operates statewide. Oregon uses a six-part test that also includes the ability of the entity to make binding government decisions, and the status of the entity’s employees as government or nongovernment employed. Colorado, Florida and New Mexico apply a slightly different nine-part test that also considers whether the entity mixes funds with the government through use of the state treasury, if the entity conducts business on publicly owned property, and whether the government has “substantial financial interest” in the entity.

Other state courts, like those of Arkansas, apply a simpler test permitting private agencies receiving public funds to be subject to open records requests. In Pennsylvania, any nongovernmental body performing government business or nonprofit renting public property for more than $1.5 million per year is required to abide by open records laws.

However, there remain states without guidance from judicial or legislative bodies on the inclusion of nongovernmental entities. In states like Alabama, Alaska, Arizona, Idaho, Mississippi, Montana, Nevada and South Dakota, the law does not specify a state’s inclusion and no court cases requiring private bodies to submit to records requests could be found. In Illinois, courts ruled that the receipt of public funding is insufficient in deeming a body public for the purpose of their law, and that the government must play a more active role in the decision-making and day-to-day operations of a company.

Participation of nongovernment entities in public records requests is only becoming more relevant as states look to privatize certain programs and agencies to decrease operating costs and risks. By setting clear statutory guidelines for inclusion and remaining informed on the issue, policymakers can anticipate how changes to the operation of their state will impact the distribution of information to taxpayers.

By Kamren Gilbard and Jane Koppelman

More than 500,000 people died from an opioid-related overdose in the U.S. between 1999 and 2020, a more than seven-fold increase, and an estimated 2.7 million people were diagnosed with opioid use disorder (OUD) in 2020.

Methadone and buprenorphine — medications approved by the Food and Drug Administration to treat OUD — are the most effective treatments, as they are proven to reduce overdose deaths and illicit drug use. However, access to these lifesaving treatments is limited, with only 22% of people with OUD receiving any form of medication in 2021. While methadone is only available at highly regulated clinics — known as opioid treatment programs — buprenorphine can be provided by physicians, nurse practitioners and physician assistants in a variety of settings, such as primary care clinics and physician’s offices. Despite this, prescription rates for buprenorphine are low. Forty percent of U.S. counties lacked a buprenorphine provider in 2018, the most recent year data is available. 

Striking disparities in buprenorphine access and use exist across racial groups. While OUD rates are fairly comparable among Black, Hispanic and white populations, buprenorphine providers are notably less likely to be located in communities of color. One national study of Medicaid beneficiaries diagnosed with OUD found that Black, Hispanic and Native American patients were significantly less likely to receive buprenorphine than white patients. Meanwhile, opioid fatalities are rising at faster rates for Black and Native American people than for white people. Research suggests there are numerous factors at play beyond the absence of prescribers, including a lack of culturally responsive or respectful care and a bias among providers who withhold buprenorphine from patients of color.

The Mainstreaming Addiction Treatment Act, which President Joe Biden signed into law as part of a larger omnibus spending bill in December 2022, intends to increase the number of providers willing to prescribe buprenorphine. The law removes a cumbersome requirement for providers to apply for a special Drug Enforcement Administration waiver (known as the X waiver), before they can prescribe the medication to patients with OUD. It also removes buprenorphine-specific training requirements for those prescribing the medication.  Still, this law does not supersede state laws placing registration and training requirements on buprenorphine providers. As of August 2020 — the most recent year state-by-state data was compiled — four states required prescribers to register with the state and six states required prescribers to complete additional clinical training beyond what the federal government required under the X waiver.

Other state-level rules create even more barriers to accessing buprenorphine. Some public and commercial state insurers require patients to receive preauthorization from their health care provider to obtain buprenorphine, which delays immediate access to medication. As of 2018, 16 states required patients to undergo counseling as a condition of receiving buprenorphine, despite research showing that medication alone — even without counseling — lowers OUD overdose death rates and improves treatment retention. Further, low Medicaid reimbursement rates at the state level can create prescribing disincentives for providers. Additionally, buprenorphine providers often lack the capacity to offer or coordinate wraparound services that patients with OUD may need, such as recovery housing or transportation. 

State Progress in Expanding Buprenorphine Access 
Due to rising opioid deaths and a significant racial gap in treatment for people with OUD, among other concerns, policymakers in many states are working to remove barriers to treatment and increase access to buprenorphine. 

Offering provider support
Many states implemented the hub-and-spoke model, which is designed to support providers treating patients with OUD. In the model, originally developed by the Vermont Department of Health, hubs are a small number of specialty treatment providers staffed to care for patients with severe and sometimes complex OUD. These hubs provide clinical guidance and a trusted referral to a buprenorphine provider. A larger number of spokes — primary care providers, OB-GYNs, community health center staff and others that can prescribe buprenorphine — are designed to support people with less severe OUD or for people transitioning out of hub care. The model encourages primary care providers acting as “spokes” to accept patients who they may have previously felt had overly complex medical circumstances. As of 2021, 27 states and territories have used State Opioid Response Grants from the Substance Abuse and Mental Health Services Administration to implement hub-and-spoke models. 

Raising provider reimbursement rates
States have leveraged Medicaid reimbursement rates to encourage more health care providers to prescribe buprenorphine for OUD. For example, Virginia’s Addiction and Recovery Treatment Services (ARTS)  program significantly raised Medicaid reimbursement rates for substance use counseling and allows Medicaid to cover care coordination and peer support services for OUD patients. Combined with other Medicaid reforms, ARTS increased the number of providers able to offer buprenorphine, as well as the number of individuals receiving medication.   

Granting immediate access to buprenorphine
Delaying the start of medication for OUD increases a person’s risk of overdose and death. In response, a number of states have placed limits on rules that interfere with a patient’s immediate access to buprenorphine — such as prior authorization, counseling and initial intake assessment requirements — and have adopted a low threshold strategy, which allows a provider to immediately prescribe buprenorphine the moment a patient wants treatment, at a cost the patient can afford and without the provider placing additional conditions on receiving the medication. Policymakers across the country have implemented elements of this approach. As of April 2020, 21 states and the District of Columbia had removed buprenorphine prior authorization requirements for public or commercial health plans. 

Missouri fully embraced low-threshold treatment methods. The state’s Department of Mental Health developed the Medication First program in 2017 for publicly funded treatment programs, which removed rules that required patients to either go to counseling or wait for an assessment visit before getting a buprenorphine prescription.  

Reducing racial access disparities
One strategy addressing racial disparities in buprenorphine access is to increase the level of culturally responsive care offered by providers. In Pennsylvania, Medicaid requires its managed care plans to achieve, or work toward, the National Committee for Quality Assurance’s Multicultural Health Care Distinction. Recipients awarded this designation established plans that disaggregate patient data by race, ethnicity and language; provide culturally and linguistically appropriate services; provide services in languages that patients use; collect race and ethnicity data of plan providers; and implement strategies to improve health disparities.

Conclusion
Through a variety of mechanisms, state policymakers can increase access to lifesaving medications for opioid use disorder. The strategies described above — which often involve maximizing Medicaid coverage, modifying state regulations, passing legislation or appropriating funds — are among the options that state legislators and executive branch officials can use to help more providers offer buprenorphine and allow patients quick access to evidence-based treatment.