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Spotlight on Success

The organizational component which has allocated a significant increase in resources and has achieved a large backlog decrease is CMS. In keeping with the Department’s Open Government and transparency initiatives, CMS made substantial improvements in FOIA activities with positive results, including reducing its backlog from 10,312 to 3,486, a 66 percent reduction. 

The CMS: reduced its FY 2010 pending FOIA initial requests by 49 percent compared to FY 2009; processed 89 percent of end-of-FY 2009 total pending FOIA initial requests; processing 91 percent of FY 2010 FOIA initial requests, even as it received 14,000 more requests this year than in FY 2009; reduced end-of-year total pending FOIA appeals by 79 percent compared to FY 2009; redesigned its FOIA web page, with further refinements under development; worked within CMS and with other HHS components to put more useful CMS materials on its web pages and to liberalize its disclosure policies; reengineered FOIA work processes, in headquarters, the regional offices, and with Medicare payment contractors to “work smarter”; continued to refine FOIA information technology used to track requests, transmit documents between headquarters and the regions, and to redact responses; and nearly doubled the resources committed to FOIA, while meeting new commitments under the Affordable Care Act and ongoing programmatic responsibilities.

A preliminary review of FOIA revealed several areas warranting immediate attention. The CMS instituted several quick fixes to bring about greater efficiencies, process transparencies and accountability. These efforts are concentrated on a number of areas. The FOIA intake process was improved through the following steps: improved responsiveness by filtering out incomplete requests for immediate denial and closure; improved data entry and management notification of incoming high profile requests, appeals and litigation; and, hired a FOIA-experienced analyst. 

A number of general processing enhancements were made: CMS maximized the utilization of its tracking system including imposing the mandatory use of reports as a tool of accountability and transparency; created an administrative support team to assume clerical and administrative work currently performed by FOIA analysts; re-delegated certain denial authority to Regional Offices in order to speed up final case disposition; updated its website with appropriate forms, policy, and procedures to enhance the ability of the public to submit complete and clear requests that can be speedily served; created a Backlog Strike Force to focus on thousands of older cases that were not showing any signs of progress; that were languishing, as “cold cases,” without significant staff time or attention; and made changes in the processing of FOIA cases and disposition of closed case records at regional and contractor levels to improve both actual and measured performance, such as giving regions and contractors increased authority to provide information to requestors without further central review. 

In particular, under previous procedures many cases had to come back to headquarters for final approval to release the information. Under the reformed procedures, regions are given far more discretion to release requested information without prior approval. Under the previous case tracking methods, a single request sent to 10 regions and contractors would have been recorded as a dozen or more FOIA requests. Under the new procedures this one request was given a unique number and tracked as one case. The CMS corrected errors in caseload counts due to prior failures to record as “closed” many cases in which the requested information had been provided.

Under the previous system, if any one of those dozen requests was fulfilled, but not reported as fulfilled, it would have been recorded for months or years as an open request. Under reformed procedures, all cases are accounted for and counted as closed when the closing response is sent.

The CMS reengineered the current processing of FOIA requests away from the first-in first-out concept towards “intelligent case processing”; under the “first-in first-out” system, if a case took a year to process, dozens of far simpler cases assigned to the same analyst would sometimes be deferred for that full year, without even assignment to substantive staff analysts who could provide the information requested.

The CMS focused the most highly skilled staff resources on the intake and assignment of new requests in order to identify the swiftest and most responsive ways to meet requests. Previously, each case was assigned randomly to the next “available” FOIA analyst regardless of backlog. Under the reengineered system, three teams handle groups of cases and deal with them based on the issues each poses. No cases will wait for now months or years for attention.

The CMS improved its FOIA web pages so that they will help the public identify existing online resources that can meet their information needs faster and better than using the FOIA mechanism. For the first time in CMS history, the CMS website contains forms and formats and plain English instructions that requesters can use to make FOIA requests legally complete and functionally clear. (Relatedly, erroneous requests are being closed immediately, rather than carried on the books indefinitely.)

The CMS improved its FOIA database system for managing FOIA caseload so that it would better meet CMS-specific needs for case management and identification of repeat requests, and also provide information useful in future analysis of potential Open Government initiatives. 

These half-dozen improvements have all been implemented, with immediate results in all these areas and continuing improvements over the longer run. Short-run results are significant, but only future performance will show which of these reforms will contribute most heavily to improving performance.

In addition, other immediate gains will be made in improving public access to existing information resources. Notably, CMS is actively encouraging the use of MyMedicare.gov for use by beneficiaries and beneficiary representatives to obtain access to claims information, as an alternative to the use of the FOIA procedure. At www.mymedicare.gov, a beneficiary can simply and quickly access personal information, including a detailed claims history. The CMS augmented the automated correspondence control system for FOIA tracking purposes, which is the vehicle through which CMS is now complying with the requirements for maintaining electronic records (established under the “Electronic Freedom of Information Act” (E-FOIA) of 1996), and affirmed and expanded in the Open Government Act of 2007.

The CMS has long had tight budgets and did not allocate resources to its FOIA program, but was finally able to dedicate the resources to create an electronic system to log, track, and manage FOIA requests in 2008. This system, which has been operational since mid-2009, has already improved the ability of CMS to manage FOIA requests. It is already able to pinpoint overdue responses, caseload management by individual FOIA staff, and other day-to-day management problems. It is being augmented with better indexing tools to upgrade the ability of CMS to identify subject and topic patterns in FOIA requests. This will better enable CMS to meet its legal obligations to identify patterns of repetition in requests and post more targeted response information on the Internet, as well as to identify opportunities for new Open Government initiatives that will substantially improve the public’s access to information and reduce the need to use the FOIA process to obtain information.

The CMS’s established a FOIA Backlog Strike Force of highly skilled and experienced professionals. These individuals are recognized experts in the FOIA program and are highly experienced in FOIA analysis with an in-depth knowledge of the operations, policies, regulations, and statutes governing FOIA and the program areas of CMS. The Strike Force is comprised of recently retired staff procured by contract, a reemployed annuitant, a newly hired individual with a legal background, and a former FOIA employee. The Backlog Strike Force has demonstrated immediate success by processing and closing over 500 older backlogged cases a month, which together with immediate management reforms has already enabled CMS to reduce the backlog by over 66 percent from the FY 2009 level.

One of the specific requirements in the OMB instructions was that agencies reduce their FOIA case backlog by 10 percent during FY 2010. In response, The CMS devoted massive senior leadership resources and cooperative efforts to reengineer existing processes to fix “broken” procedures. This effort involved brainstorming meetings and collaboration including regions, contractors, and CMS staff. Historically, CMS leadership had been unwilling to invest additional resources in FOIA operations. However, in response to recent statutory directives for automation, after 40 years of neglect CMS committed the resources to begin a major upgrade of its FOIA effort in 2008. CMS built a FOIA database and management tool. This new tool began operations in early calendar 2009 and has now accumulated over a year of case management information. The implementation of the automated tracking system has been setup to streamline or eliminate the administrative aspect involved in disclosure analysis and request management. Correspondence templates, automated fee calculation and electronic transmission of cases throughout the CMS FOIA network contribute to the reduction in processing time, thereby improving timeliness in responding to requests.