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Judge rejects bid to release behavioral health audit

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SANTA FE – State District Judge Sarah Singleton has ruled that an audit of 15 behavioral health providers should not be released to an open-government group, agreeing with the attorney general it could harm his ongoing criminal investigation.

In denying the request from the New Mexico Foundation for Open Government, Singleton said the audit should be withheld under the law enforcement exception to the Inspection of Public Records Act.

A lawyer for NMFOG said Friday that the organization is disappointed with the ruling and is considering an appeal.

The audit, done for the state Human Services Department by Boston-based Public Consulting Group, was the premise for HSD’s halting Medicaid funding to the nonprofits and eventually replacing a dozen of them with companies from Arizona.

Only a small portion of the audit has been released by Attorney General Gary King in response to requests under IPRA, and much of that was blacked out. King’s office is investigating whether any Medicaid fraud occurred.

NMFOG argued in a hearing last month that the public has a right to know how the $3 million audit was conducted, whether the claims being investigated are genuine and whether there was a basis for the ensuing disruption in the behavioral health system.

But Singleton said she reviewed the document after the Nov. 19 hearing and confirmed that it discusses confidential methods used during the audit, contains confidential information and identifies potential witnesses, “some of whom may be sources and some of whom may be charged with a crime or accused at a future date.”

“The information revealed by the audit is not generally known, and revelation of it and how it was gathered could harm the AGO investigation,” Singleton wrote in a ruling filed Thursday.

NMFOG lawyer Greg Williams said the ruling “permits the attorney general to classify a public document as ‘confidential’ under the law enforcement exception, even though the document was not created by a law enforcement agency or for law enforcement purposes, and even though the document’s conclusion was that no laws had been broken.”

Williams said he was referring to a sentence in the portion of the audit released earlier by King that said PCG’s case file audit – one of three components of the audit – “did not uncover what it would consider to be credible allegations of fraud, nor any significant concerns related to consumer safety.”

HSD maintains that it wasn’t up to PCG to determine whether there were credible allegations of fraud; HSD, as the state Medicaid agency, made that determination before it turned the audit over to the attorney general.

Williams said if NMFOG were to appeal Singleton’s ruling, it would likely be to the state Court of Appeals.

Singleton was the second judge to rule against the audit’s release. State District Judge Douglas Driggers in Las Cruces refused last month to order HSD to release it, in a lawsuit brought by the Las Cruces Sun-News and New Mexico In Depth.

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