Click for pdf which includes Civil Cover Sheet




PAUL BURKE, Pro Se                                        |

29 Dance Lane                                                     |

Harpers Ferry, WV 25425                                   |

304-876-2227,                                                      |


Plaintiff,                                                   |


v.                                                                           |      Civil Action No. 16-



HUMAN SERVICES                               |

200 Independence Ave., S.W.                              |

Washington, DC 20201-0004,                             |


Defendant.                                                |


Plaintiff, Paul Burke, brings this action for declaratory and injunctive relief, alleging as follows:

Nature of Action

1.               This is an action under the Freedom of Information Act ("FOIA"), 5 U.S.C. §552, as amended, to compel the production of certain agency records, described below in paragraph 10 and in Exhibit 1, attached.

2.               The records are explanatory material which the government wrote for distribution to medical offices, to enable those offices, in turn, to provide the material to Medicare patients.

3.               The government improperly denied Plaintiff's FOIA request for the material after 590 days, citing privilege. The administrative appeal has been pending for over 400 days. Since the appeal has been pending more than 20 working days, Plaintiff has exhausted his administrative remedies (5 U.S.C. § 552(a)(6)(A)(ii) and § 552(a)(6)(C)).


Jurisdiction and Venue

4.               The Court has jurisdiction over this action pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. § 1331.

5.               Venue lies in this district pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. §1391.


6.               Plaintiff is an individual who manages an informational website, to educate people about Medicare issues.

7.               Defendant, U.S. Department of Health and Human Services ("HHS"), is an agency of the United States. The Centers for Medicare and Medicaid Services ("CMS") is a component agency of Defendant HHS. Defendant has possession of and control over the records that Plaintiff seeks.

Facts and Law

8.               In 2011 CMS issued a Final Rule which allows medical providers to form "Accountable Care Organizations" ("ACOs") and to participate in them, as one approach in caring for Medicare patients under the traditional Fee for Service ("FFS") program (42 CFR 425.20).

9.               In 2013 Plaintiff filed a FOIA request (attached as Exhibit 1). The government assigned Control # 071620137079 to the FOIA request.

10.            The request asked for "signs," "standardized written notices," "templates," and "model language," which CMS gives to medical providers in Accountable Care Organizations. The providers must offer some of the material to Medicare patients, and may offer them the rest. The following wording identifies this material. The government used this wording when it published the Final Rule (76 Federal Register 67946-67947, 11/2/11):

11.            The codification of the Final Rule confirms that participating doctors must,

12.            After numerous phone calls between the parties, on February 25, 2015, Mr. Hugh Gilmore of CMS sent Plaintiff a letter (attached as Exhibit 2) saying there are 17 pages of responsive records, but all were withheld under exemption 5 of the FOIA (5 U.S.C § 552(b)(5)).

13.            The denial's reference to exemption 5 made conclusory mention of civil discovery privileges, attorney-client privilege and deliberative process privilege. It did not explain how any of these privileges applies to information already released to the public, i.e. doctors participating in Accountable Care Organizations, pursuant to a Final Rule. ACOs are independent legal entities, separate from the government (42 CFR 425.104).

14.            The documents are not pre-decisional, since Medicare has approved them for release to doctors in Accountable Care Organizations and to Medicare patients. The documents cannot contain recommendations on legal or policy matters, nor personal medical information, since their purpose is to tell patients factual information about the Accountable Care Organizations.

15.            A claim of privilege cannot apply to information that is "made available" to the public.

16.            HHS regulations say that its use of exemption 5 covers,

17.            HHS regulations also say,

18.            HHS has released the material covered by the FOIA request to doctors in Accountable Care Organizations, for use by Medicare patients, but has not released it to the Plaintiff, and has not explained why the material can be released to one and not the other.

19.            Mr. Gilmore, before he denied Plaintiff's FOIA request, told Plaintiff orally that the "program office" did not want to provide the information, because it thought,

20.            Plaintiff timely filed an administrative appeal, within the required 30 days (45 CFR 5.34). HHS signed for receipt of the appeal on March 26, 2015, which was 29 days after the February 25, 2015 denial letter.

21.            On June 4, 2015 Plaintiff contacted the Office of Government Information Services ("OGIS"), since one of its functions is to "offer mediation services to resolve disputes" under the FOIA (5 U.S.C § 552(h)(3)). OGIS found the appeal was "pending review" at HHS but HHS had no estimate for its completion date. OGIS said, "At this time, OGIS cannot offer you any additional assistance" on August 31, 2015.

22.            On January 24, 2016 Mr. Derrick McNeal of HHS telephoned Plaintiff and said HHS policy is that only Accountable Care Organizations have access to the written material.

23.            HHS has not given any written decision on the administrative appeal, and over 400 days have passed since HHS received it.


24.            Plaintiff is injured by lacking information, which he wants to make available to the public, about the government's relationship with certain Medicare providers, the Accountable Care Organizations, and he is injured by the improper withholding of agency records to which he is entitled.

25.            Plaintiff cannot get the records elsewhere. Medicare providers are not required to use all the government's model language, so the only way to see it all is to get it from the government.

Request for Relief

WHEREFORE, Plaintiff requests that this Court:

  1. Declare that Defendant’s failure to disclose the records requested by Plaintiff is unlawful;
  2. Order Defendant to make the requested records available to Plaintiff within 10 days from the date of the Order;
  3. Award Plaintiff his costs and reasonable attorney fees, if any, in this action, pursuant to 5 U.S.C. § 552(a)(4)(E)(i); and
  4. Grant such other and further relief as the Court deems just and proper.

Respectfully submitted,



Paul Burke, Pro Se

29 Dance Lane

Harpers Ferry, WV 25425



May 3, 2016

Exhibit 1 - FOIA Request from Paul Burke Submitted to HHS Online July 15, 2013,

Control # 071620137079

I request copies of language provided by Medicare to Accountable Care Organizations for signs and informing beneficiaries about the Shared Savings Program, as identified on pp.67946-67947 of the Federal Register 11/2/11 (ACO Final Rule)


P.67946 said Medicare would provide language for signs and notices:

"Nor should posting signs be inappropriately burdensome, since CMS will develop appropriate language"

"make available standardized written notices developed by CMS"

P.67947 said Medicare may provide language for marketing materials:

"To the extent that CMS supplies templates or model language for ACOs to use in marketing materials, we will ensure it complies with the Plain Writing Act of 2010."


The signs and notices tell patients that the facility is part of an ACO, that the patient may go elsewhere if desired, how to opt out of data sharing, and other issues.


I requested signs and written notices from, and they answered, " We provide the standardized written notices to ACOs upon acceptance to the program. They are not available on our website." (see below)

So Medicare was able to identify what I need, and it is readily available.


I am an individual seeking information for personal use and not for a commercial use.

I am willing to pay fees for this request up to a maximum of $100. If you estimate that the fees will exceed this limit, please inform me first.

I request that the information I seek be provided in electronic format, by email.

If you have any questions about handling this request, you may call me at 304-876-2227.


from: Researcher


sent: Wed, Jul 10, 2013 at 3:46 PM

subject: standardized written notices developed by CMS


Dear Ms Weiss:

The 11/2/11 final rules for ACOs say participants will provide the public:

"standardized written notices developed by CMS" to tell patients that the facility is part of an ACO, and the patient may go elsewhere if desired. (Federal Register 11/2/11 p.67946)

I do not find these "standardized written notices" on your websites. Could you point me to a link, or send them to me?

I am interested in handouts and signs if you have standard versions.

Thank you,

Paul Burke



from: CMS ACO -

to: Researcher

date: Thu, Jul 11, 2013 at 5:32 AM

subject RE: standardized written notices developed by CMS


Dear Mr. Burke,

Thank you for your interest in the Medicare Shared Savings Program. We provide the standardized written notices to ACOs upon acceptance to the program. They are not available on our website.


Medicare Shared Savings Program Staff

7500 Security Blvd. Baltimore, MD 21244

Exhibit 2 - Denial Letter from HHS to Paul Burke