[Federal Register Volume 88, Number 46 (Thursday, March 9, 2023)]
[Notices]
[Pages 14627-14628]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-04858]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Health Resources and Services Administration


Freedom of Information Act Predisclosure Notice

AGENCY: Health Resources and Services Administration (HRSA), Department 
of Health and Human Services (HHS).

ACTION: Request for comment.

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SUMMARY: This notice informs submitters who reported COVID-19 data in 
2020 for the High-Impact Area Distribution that HRSA received a Freedom 
of Information Act (FOIA) request for data reported to HHS that was 
used in determining COVID-19 High-Impact Area Distribution payments 
under the Provider Relief Fund. Specifically, the request seeks certain 
information pertaining to providers who did not receive COVID-19 High-
Impact Area Distribution payments. This notice seeks input from these 
providers so that HRSA can respond to the FOIA request.

DATES: Comments must be received on or before March 23, 2023.

ADDRESSES: Comments should be submitted to the HRSA FOIA Office via 
email at [email protected].

FOR FURTHER INFORMATION CONTACT: Brian A. May, FOIA Officer, 5600 
Fishers Lane, Room 13N112, Rockville, Maryland 20857; 301-443-1467, 
[email protected].

SUPPLEMENTARY INFORMATION: The FOIA, 5 U.S.C. 552, compels federal 
agencies to release records in its possession, unless the agency 
reasonably foresees that disclosure would harm an interested protected 
by one (or more) of the nine exemptions or disclosure is prohibited by 
law. FOIA also requires that agencies provide FOIA requesters with 
reasonably segregated portions of records, which means that agencies 
must release any portion of the records where an exemption does not 
apply, unless technically unable to reasonably do so.

Explanation of the Action

    The HRSA FOIA Office received a FOIA request for data reported to 
HHS in 2020 that was used in determining COVID-19 High-Impact Area 
Distribution payments under the Provider Relief Fund. HHS made the 
first round of COVID-19 High Impact Area Distribution payments to 395 
hospitals that reported they had 100 or more COVID-19 admissions during 
the period of January 1, 2020. and April 10, 2020. HHS did not make 
payments to hospitals that reported they had fewer than 100 COVID-19 
admissions during the period of January 1, 2020, and April 10, 2020. 
The FOIA request specifically seeks data on the hospitals that reported 
they had fewer than 100 COVID-19 admissions during the period of 
January 1, 2020, and April 10, 2020, and therefore, did not receive a 
payment in the first round of the COVID-19 High Impact Area 
Distribution.
    This notice only applies to hospitals that reported in the first 
round of reporting to HHS that they had fewer than 100 COVID-19 
admissions during the period of January 1, 2020, and April 10, 2020, 
and, as a result, did not receive a payment in round 1 of the COVID-19 
High-Impact Area Distribution. Comments from any entity that does not 
satisfy these conditions will not be reviewed.

Necessity of the Action

    Executive Order No. 12600, 52 FR 23781 (1987), and the HHS FOIA 
regulations at 45 CFR 5.42(a) require HRSA coordinate predisclosure 
notifications for records that were

[[Page 14628]]

submitted to HHS, for which HRSA was deemed a custodian of the 
requested data given HRSA's oversight of the Provider Relief Fund. HRSA 
has reason to believe that information in the records could reasonably 
be considered confidential commercial information and exempt from 
disclosure under FOIA Exemption 4. FOIA Exemption 4 allows agencies to 
withhold trade secrets and commercial or financial information obtained 
from a person (business entities including hospitals are considered 
people under the FOIA) and is privileged or confidential. Both the 
Executive Order and HHS FOIA regulations permit agencies to notify a 
voluminous number of submitters by posting or publishing a notice in a 
place where the submitters are reasonably likely to become aware of it. 
See Executive Order 12600 or 45 CFR 5.42(a)(1). This notice satisfies 
this requirement. Additionally, HRSA will send predisclosure notices 
directly to hospitals for whom HRSA has contact information.
    HRSA determined that, for those hospitals that did not receive a 
payment in the first round of the COVID-19 High Impact Area 
Distribution, the following responsive data could reasonably be 
considered confidential commercial information and exempt from 
disclosure under FOIA Exemption 4:
    (1) number of COVID-19 admissions; and
    (2) intensive care unit hospital beds for each facility (and 
associated Centers for Medicare & Medicaid Services' Certification 
Number (CCN))
    HRSA must analyze the releasability of the data prior to making a 
release decision. Because organizations submitted data to HHS that was 
identified in the FOIA request, HRSA is notifying submitters of their 
full rights through this predisclosure notice. HHS's FOIA regulations 
provide affected entities with 10 working days from the date of this 
notice to object to disclosure of part or all of the information 
contained in these records.
    A person who submits records to the government may designate part 
or all of the information in such records that they may consider exempt 
from disclosure under Exemption 4 of the FOIA. The designation must be 
in writing. See 45 CFR 5.41.
    So that HRSA can determine how providers actually and customarily 
treat the disclosure of these data, please respond to the following 
questions with respect to the (1) number of COVID-19 admissions and (2) 
intensive care unit hospital beds for each facility (and associated 
CCN) and send your organization's response to [email protected] in 
the timeframe referenced in the dates section of this notice. Please 
include your organization's CCN and facility name in your response to 
ensure that it is attributed correctly.
    (1) Do you customarily keep the requested information private or 
closely held? What steps have you taken to protect the confidentiality 
of the requested data, and to whom has it been disclosed?
    (2) What facts support your belief that this information is 
commercial or financial in nature?
    (3) Did the government provide you with an express or implied 
assurance of confidentiality when you shared the information with the 
government? If so, please explain.
    (4) Were there express or implied indications at the time the 
information was submitted that the government would publicly disclose 
the information? If so, please explain.
    (5) How would disclosure of this information harm an interest 
protected by Exemption 4 (such as by causing foreseeable harm to your 
economic or business interests)?

Intended Effects of the Action

    In the event that a submitter fails to respond to the notice within 
the time specified, it will be considered to have no objection to 
disclosure of the information. Submitted objections will be given the 
appropriate consideration; however, responses are not an agreement that 
HRSA will withhold the information. If HRSA decides to release the 
information over objection, HRSA will inform submitters, in writing, 
along with HRSA's reasons for the decision to release. HRSA will 
include with such notice a description of the information to be 
disclosed or copies of the records as HRSA intends to release them. 
HRSA will also provide submitters with a specific date that HRSA 
intends to disclose the records, which must be at least 5 working days 
after the date of the intent to release notice. HRSA will not consider 
any information received after the date of a disclosure decision.

Maria G. Button,
Director, Executive Secretariat.
[FR Doc. 2023-04858 Filed 3-8-23; 8:45 am]
BILLING CODE 4165-15-P