Wednesday, January 30, 2013

Transparency/Accountability "neutered" in Health Exchange bill

The Minnesota Health Exchange (House File 5 1st Engrossment/Senate File 1 2nd Engrossment) scheme which the Legislature is now debating is a controversial part of the health care reform movement.  On top of that here have been stories recently in the local news about conflicts of interest with a legislator, now former legislator in the health care business, and a strong concern by the public of what government does with data about them illustrated by the DVS scandal and license plate scanners. There is a wary public out there wondering if the Legislature is going to allay concerns and fears that they have of this new creature called the Minnesota Insurance Marketplace.  The public has a right to have concerns and fears and this is why.

There will be less public scrutiny, accountability, and transparency by the public for the Minnesota Insurance Marketplace.  This is because of the broad exceptions in the bill to the Open Meeting law and little nuances stated in the bill as it relates to data practices and vague language.

Section 5, Subdivision 2 of House File 5 same with Senate File 1 is where the Open Meeting provisions are in.  It is the intent of the bill to be under Chapter 13D, but it's in name only because of the broad exceptions in (c) (1), (2), and (3).  In trying to ascertain what personnel or contract negotiations are I have not been able to get a clear answer.  I have pointed out to the appropriate people that other public bodies do this kind of business without special provisions under current Open Meeting Law. 

I am very troubled by the language "meetings regarding private, not public, non public, or trade secret information are closed to the public." (This is current House language, worded differently in Senate version, but same result) You may as well hang on the Minnesota Insurance Marketplace Health Exchange meeting room door-"We are perpetually closed."  This is outrageous particularly when you review the general principles of the Open Meeting Law of 13D.05, subdivision 1.

The current Open Meeting Law allows public bodies such as the Marketplace Board, and city councils, county boards, school boards, commissions to discuss not public data in public with specific exceptions.  The Health Exchange goes over the top in wanting to discuss many things in secret that other public bodies could not do.  In trying to ascertain why the Board needs this super "secrecy" provision I have not been able to.

Recommendations for Section 5, subdivision 2, specific to House File 5, 1st Engrossment:

A) Add this language at the appropriate place: "The Minnesota Insurance Marketplace is subject to the Minnesota Government Data Practices Act"

B) Delete lines 3.7 after 13D, the comma, place period, remove through lines 3.13

The other section of the proposed bill that I have concerns about is Section 7 (House File 5, language in Senate File, Section 8 is nearly the same).  The language gives power and overall authority to the Marketplace Board authority to make agreements with other government agencies and other "entities" to share "not public data".  It also authorizes state agencies to share "not public data".  Now you may be asking what is "not public data"?

It's everything on people, data on individuals, salary income, it could be health records, tax information, it's unlimited.  This data is generally private or confidential. Not public data also includes data on companies and businesses that the public does not have access to.  This is why the language needs to be specific with who the agreements are with and what data will be shared.

It is contemptible to the public if the Legislature does not roll up it sleeves and work on this section with specifics as what data is being shared and with whom.  The Legislature would be abrogating their due diligence and their historical involvement with privacy if they just kick the can on this section.

Reviewing the bill, House File 5, 1st Engrossment, as it relates to Open Meeting Law and Data Practices I am of the view whoever wrote this language does not understand the Minnesota Government Data Practices Act or Open Meeting Law.  The ignorant drafting of those sections that relate to Open Meeting and Data Practices creates ignorant results and the implications are huge.

I have spoken with a number of people on this matter from Rep. Atkins to who I have shared my concerns with to the appropriate committees where I have had an opportunity to testify.

If the Legislature chooses to go forward with the proposed bill as is that's their choice.  But there will be less transparency and accountability for an agency that has broad powers, an ongoing amount of monetary resources, and an impact on hundreds of thousands or millions of Minnesotans lives.  By their own choice the Legislature will only enforce the suspicions that many Minnesotans already have of this new part of Minnesota government or pacify it.

Hopefully, careful work on these problems by the House Civil Law Committee will solve these problems.

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