Health Exchange struggles with transparency

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Bryant Furlow

Bryant Furlow

On paper, the New Mexico Health Insurance Exchange is one of the most transparent in the nation. But in practice, the exchange is struggling to live up to that standard.

State law requires that the exchange, which is set up as a semi-independent corporation, comply with the state’s Inspection of Public Records Act (IPRA) and Open Meetings Act (OMA).

These are crucial safeguards against back-room deals for a body that is exempt from normal state procurement procedures, a body that plans to rapidly award millions of dollars in contracts as it seeks to get a functioning health insurance marketplace online by October.

But the exchange has already violated the state’s public records law, taking a month to disclose board member emails requested by New Mexico In Depth on May 16. Other records requested the same day have still not been disclosed.

The IPRA states that requested documents must be disclosed quickly – immediately, when possible, and no longer than 15 days after they are first sought unless the agency deems the request “overly burdensome,” and then the agency can have more time. They didn’t tell me my request was burdensome, and they didn’t provide the records in the time required.

It was only after the exchange learned that we would be reporting on public records violations (and after we had already reported the story for which we had requested the emails), that they were disclosed, this Sunday afternoon.

There is no doubt that exchange staff and board members are very busy. The exchange met for the first time in late April and formally hired Michael Nuñez as CEO only last month. He does not yet have a support staff, and has been trying to negotiate the Human Services Department’s transfer of tens of millions of dollars to the exchange, among other things.

And the exchange’s board of directors is comprised almost entirely of health care and insurance industry executives, many of whom might be unfamiliar with the state’s public records and meetings laws.

For example, exchange board chairman Dr. J.R. Damron acknowledged that he had nearly violated the Open Meetings Act by approaching other board members individually to discuss “personnel matters,” rather than doing so at a publicly-announced board meeting.

“OMA’s foreign to me,” he told me. “I am a radiologist in the private sector.”

Luckily, he said, board vice chair Jason Sandel, who also serves on the Farmington City Council, warned him off the plan, saying it would violate OMA.

Sandel subsequently warned the entire board that its members must comply with the IPRA and OMA. He also pushed for the board’s IPRA and OMA resolutions, passed earlier this month.

“I believe we should be pouring every effort into providing information and documents swiftly,” Sandel said, adding that he is “already disappointed about our lack of progress thus far.”

“If we are not in compliance in short order my disappointment will turn to frustration,” he said shortly before the board’s emails were finally disclosed on Sunday.

Missing minutes, informal meetings

IPRA delays are not the only concern. As of Monday morning, meeting minutes from several board meetings did not appear on the Exchange website — meaning that people who were unable to attend those meetings have few ways to learn what was said or done there.

And board members readily acknowledge holding “informal” working committee meetings without public notice, essentially rendering those meetings secret — or at least, not meaningfully open to the public. (There’s not yet been a response to an emailed request for the names of those who have attended committee meetings — a request sent last Monday.)

The board’s working committees are not required to publicly announce their meetings so long as they do not have the authority to make “final decisions” for the board, exchange attorney Nancy Long said.

But there is no rule saying committees can’t tell the public when and where they are going to meet to discuss public business, either, Barak Wolff pointed out.

“Why not?” Wolff, a legislative analyst for the state Senate and former director of the state Department of Health’s Public Health Division, said. “They might not be legally obligated, but it would be good practice to share as much as possible with the public.”

The exchange needs to post their meeting agendas online in a more timely fashion, he added.

“I don’t think they’re hiding anything,” Wolff said. “They’re just not putting as much as they need to into transparency.”

Consumer advocates have voiced similar concerns.

“We have heard repeatedly that the Exchange needs to do a better job at providing the public the information it deserves,” Sandel noted.

Most of the board members are insurance company officials and doctors, Wolff noted. That makes it particularly important that they bear in mind their potential conflicts of interest when issuing contracts.

“There’s not as much balance as there might have been between consumers and industry, on the board,” he said.

(Citing concerns about costs, Gov. Susana Martinez vetoed 2011 Exchange legislation that would have prohibited appointing insurance executives or health care providers on the board. But the compromise bill signed into law by the governor this year allowed two insurance executives and one health-care provider. Due to ambiguities in the legislation’s language, that was subsequently interpreted as “at least” rather than “no more than” two insurance company people and one clinician, when the governor and legislators appointed board members, Wolff explained.)

New Mexico, Idaho, Maryland, and Massachusetts are the only states that require their health insurance exchanges abide by open records laws. On the other end of the secrecy/transparency spectrum, California lawmakers authorized so much exchange board secrecy that the legislation might have violated the state constitution, the Associated Press has reported. California’s lawmakers authorized its exchange to keep secret its contractors’ payment rates, for example.

Over the weekend, Dr. Damron emailed to assure me that the exchange “is doing our best to be transparent and inclusive with our issues that arise with building the Exchange in the short time allotted to us.”

Mr. Nuñez is a respected and hard-working public servant. Considering the myriad demands on his and board members’ time, a rough start is understandable.

But given the amount of money involved and the stakes for New Mexicans, it is important that the exchange live up to lawmakers’ expectations and conduct their business in public view.

Bryant Furlow is a board member of the Rio Grande chapter of the Society of Professional Journalists, and a member of its Freedom of Information Committee.

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