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FOIC Rules for the Public, Against HMOs

by Paul Bass | Nov 30, 2005 8:57 pm

Commenting has been closed | E-mail the Author

Posted to: Health Care

Following is the text of a press release about a ruling Wednesday by the state Freedom of Information Commission breaking new ground for the public’s right to know how its tax money is spent. An FOIC hearing officer ruled that four private HMOs hired to run the state’s HUSKY program in effect serve a “government function”—and therefore information about the program such as how many thousands of times per month HMOs deny low-income recipients drugs at the pharmacy counter. Click here to learn more about groups working to hold HMOs accountable. And click here to read previous Independent coverage on this case.

NEW HAVEN LEGAL ASSISTANCE ASSOCIATION, INC.
426 STATE STREET
NEW HAVEN, CONNECTICUT 06510-2018
TELEPHONE:  (203) 946-4811
FAX (203) 498-9271


November 30, 2005

P R E S S R E L E A S E


FREEDOM OF INFORMATION COMMISSION HEARING OFFICER RULES MEDICAID HMOS ARE SUBJECT TO FREEDOM OF INFORMATION ACT.

RULING SAYS THAT DOCUMENTS HAVE BEEN IMPROPERLY WITHHELD FROM THE PUBLIC

In a precedent-setting ruling, Freedom of Information Commission (“FOIC”) Hearing Officer Victor Perpetua today issued a 19 page decision recommending that the FOIC rule, for the first time, that certain large state contractors are performing a “governmental function” and therefore should be directly accountable to the public under the Freedom of Information Act (“FOIA”).  The contractors are the four Medicaid HMOs which are collectively paid over $700 million per year by state taxpayers to provide essential health services to about 310,000 low-income children and their parents under Medicaid. 

For months, a public health professor and advocates for the poor have sought accountability in HMO spending of public Medicaid funds.  Their requests to the Department of Social Services (“DSS”) and a proceeding before the FOIC have sought HMO documents relating to rates paid to specialists and relating to prescription drug access problems. 

And for months, the HMOs have resisted public disclosure of this important information.  After Governor M. Jodi Rell responded to an appeal from legal services advocates by ordering DSS to turn over all relevant HMO documents in its possession, some HMO documents responsive to their requests under the FOIA were produced.  But the two largest HMOs have withheld from both DSS and the public information about how many thousands of times per month low-income Medicaid recipients are denied drugs by the HMOs at the pharmacy counter, and all four HMOs have withheld correspondence from medical specialists regarding the impact of low HMO payment rates on their decisions whether to participate in the HMOs’ Medicaid plans.

Since documents have been withheld by the HMOs, a hearing was held before the FOIC Hearing Officer Perpetua on October 19th at which the advocates explained in detail which documents the HMOs failed to produce.  This followed a hearing before the same hearing officer on September 21st at which the advocates presented evidence showing that the HMOs have taken over administration of the Medicaid program for 3/4ths of the Medicaid population, make critical policy decisions that would otherwise be made by DSS, and therefore are performing a “governmental function.”  Defying the Governor’s instructions that DSS ensure full transparency to the public in its HMO contracting, DSS argued at those hearings, alongside the HMOs, that the HMOs should be completely exempt from the FOIA and that documents requested had not been withheld.

Today, the FOIC hearing officer agreed with the advocates.  He recommends that the full Commission find that all four Medicaid HMOs are performing a governmental function and therefore should be directly subject to the FOIA, noting that, in running the Medicaid program,  the HMOs are providing the “essence of [a] governmental service” (page 16).  He also ruled that the HMOs “are in possession of many other documents responsive to the complainant’s request” that were not provided, and that DSS violated the FOIA “by failing to obtain the requested documents from the MCOs and provide them to the complainant.” (page 18).  The withheld HMO documents include documents showing how many people are denied drugs each month for lack of prior authorization, how few of these denied individuals even get temporary supplies to tide them over, and how many of these HMO enrollees still have no drug or similar drug even a month later. Also withheld were HMO documents concerning the complaints they had received from cardiology and gastroenterology specialists about low provider rates and how the HMOs selected these low rates.

The FOIC hearing officer’s decision is a key step in efforts to ensure that when large state grants are given to private companies, the public and the legislature retain the ability to know how the state’s money is really being spent.  It also is of critical importance to tens of thousands of Medicaid managed care enrollees, who have trouble accessing treatment from the HMOs. 
Marisol Pratts, who is enrolled in one of the HMOs and is one of the original complainants who brought the case, noted that “it looks like the HMOs will now have to tell us why people like me can’t get the medical treatment we need.”

The HMOs and DSS, if its chooses, will have until December 6th to submit briefs to the full Commission in opposition to the recommended decision of the hearing officer.  Oral argument by both sides will be heard on December 14, 2005 before the Commission, which then will issue a final, binding decision.     


For more information, please contact attorneys representing the parties in the FOI hearing seeking the HMO documents:

Victoria Veltri     Daniel J. Klau
Greater Hartford Legal Aid, Inc.  Pepe & Hazard LLP
(860) 541-5037   Attorney for Kari Hartwig
    (860) 241-2627

Sheldon Toubman   Randi Faith Mezzy
New Haven Legal Assistance Association, Inc.      Connecticut Legal Services, Inc.
(203) 946-4811 x148   (203) 756-8074

                # # #

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