By Melissa Patrick
Kentucky Health News
The Cabinet for Health and Family Services has refused to provide the Kentucky Equal Justice Center correspondence between the state and federal government about Kentucky's proposed changes to Medicaid, saying the documents are exempt from the state Open Records Act because they include "preliminary recommendations and opinions on policy developments."
Attorney General Andy Beshear disagreed in a Sept. 25 opinion, and said the cabinet had failed to satisfy its burden of proof to withhold the documents.
The KEJC asked May 18 for all correspondence on or after Jan. 1, 2016 between the governor's office and/or CHFS and the U.S. Department of Health and Human Services, including the Centers for Medicare and Medicaid Services, related to the state's request for a waiver of some Medicaid rules.
Republican Gov. Matt Bevin's request was filed about a year ago and is expected to be approved soon. State officials have said they are making plans to implement the program in January.
"Obviously, we have a strong interest in looking at these records because we are very concerned about the Medicaid waiver and what the effect of that waiver is going to be," Anne Marie Regan, KEJC's senior staff attorney, said in a telephone interview. "And we have a right to know what those documents look like. We have a right to some transparency in the process."
The Cabinet's first letter to Regan, dated May 23, said the documents were "not readily available," and that they needed until May 30 to compile, review and redact them. Beshear's opinion says the agency didn't provide a sufficiently "detailed explanation" to invoke an exemption, and said that its explanation did not "constitute a reason for additional delay."
The cabinet's second letter to Regan, Aug. 31, said that after searching all of its databases, "the search revealed no releasable documentation," and all of the documents were exempt because they include "preliminary recommendations and opinions on policy developments." It added that if HHS approves the waiver, "those communications that become part of the final agency action will then become releasable."
When KEJC appealed to Beshear, his office asked the Cabinet for copies of all existing responsive documents for a private or in camera review.
The Cabinet provided only five documents for review, and told the Attorney General it was "reluctant to release the documents withheld . . . even solely for in camera review"
The opinion, signed by Assistant Attorney General Michelle D. Harrison, said that since the cabinet didn't provide all of the records in the dispute for review, it had "failed to satisfy its burden that all of the requested records were properly withheld," adding that "the sampling provided was largely nonexempt."
The opinion said, "Our in camera review of the five pages that CHFS provided, which are purportedly representative of the remaining e-mails withheld, refutes the agency's position that any recommendations or opinions are contained therin with a single exception. . . . With the exception of a sentence, none of the information summarized in either document could be properly characterized as recommendations nor were any opinions expressed or policies formulated therein."
Under state law, the cabinet must hand over the requested documents to the justice center or appeal the decision in court within 30 days of the opinion.
Cabinet spokesman Doug Hogan said in an e-mail, "The Cabinet is confident in its determination that the records are exempt because they are preliminary recommendations or opinions on policy developments."
An appeal also seems likely because Beshear, a Democrat who might run against Bevin in 2019, is already at odds with the governor on several issues.
The justice center has been a vocal opponent of the waiver proposal, which mainly targets able-bodied adults who qualify for Medicaid under the expansion of the program to those who earn up to 138 percent of the federal poverty line, under the Patient Protection and Affordable Care Act.
In addition to saving the state money, the new plan is designed to encourage participants to have a higher level of involvement in their health care through things like premiums and work requirements -- both of which the justice center adamantly opposes. It also says there will be 95,000 fewer Kentuckians on Medicaid in five years than if the plan isn't implemented.
Regan pointed out that it's important to know that the Cabinet is accurately reporting what thousands of Kentuckians said during the two open-comment periods (most of which were in opposition to the plan) and what the federal government is requiring the state to do to get it approved.
"The process has not been transparent. We don't really know what the state is saying to the government. We don't know what the federal government is saying back. This has been going on now since last year," Regan said. "We think we are entitled to that information to evaluate whether what the state is saying is accurate."
The cabinet asserted that the waiver is a "draft" and should be exempt because if released it would "'potentially disrupt the negotiation process,' and 'could also create confusion among individual consumers' in addition to program staff," the opinion said.
Kentucky Health News
The Cabinet for Health and Family Services has refused to provide the Kentucky Equal Justice Center correspondence between the state and federal government about Kentucky's proposed changes to Medicaid, saying the documents are exempt from the state Open Records Act because they include "preliminary recommendations and opinions on policy developments."
Attorney General Andy Beshear disagreed in a Sept. 25 opinion, and said the cabinet had failed to satisfy its burden of proof to withhold the documents.
The KEJC asked May 18 for all correspondence on or after Jan. 1, 2016 between the governor's office and/or CHFS and the U.S. Department of Health and Human Services, including the Centers for Medicare and Medicaid Services, related to the state's request for a waiver of some Medicaid rules.
Republican Gov. Matt Bevin's request was filed about a year ago and is expected to be approved soon. State officials have said they are making plans to implement the program in January.
"Obviously, we have a strong interest in looking at these records because we are very concerned about the Medicaid waiver and what the effect of that waiver is going to be," Anne Marie Regan, KEJC's senior staff attorney, said in a telephone interview. "And we have a right to know what those documents look like. We have a right to some transparency in the process."
The Cabinet's first letter to Regan, dated May 23, said the documents were "not readily available," and that they needed until May 30 to compile, review and redact them. Beshear's opinion says the agency didn't provide a sufficiently "detailed explanation" to invoke an exemption, and said that its explanation did not "constitute a reason for additional delay."
The cabinet's second letter to Regan, Aug. 31, said that after searching all of its databases, "the search revealed no releasable documentation," and all of the documents were exempt because they include "preliminary recommendations and opinions on policy developments." It added that if HHS approves the waiver, "those communications that become part of the final agency action will then become releasable."
When KEJC appealed to Beshear, his office asked the Cabinet for copies of all existing responsive documents for a private or in camera review.
The Cabinet provided only five documents for review, and told the Attorney General it was "reluctant to release the documents withheld . . . even solely for in camera review"
The opinion, signed by Assistant Attorney General Michelle D. Harrison, said that since the cabinet didn't provide all of the records in the dispute for review, it had "failed to satisfy its burden that all of the requested records were properly withheld," adding that "the sampling provided was largely nonexempt."
The opinion said, "Our in camera review of the five pages that CHFS provided, which are purportedly representative of the remaining e-mails withheld, refutes the agency's position that any recommendations or opinions are contained therin with a single exception. . . . With the exception of a sentence, none of the information summarized in either document could be properly characterized as recommendations nor were any opinions expressed or policies formulated therein."
Under state law, the cabinet must hand over the requested documents to the justice center or appeal the decision in court within 30 days of the opinion.
Cabinet spokesman Doug Hogan said in an e-mail, "The Cabinet is confident in its determination that the records are exempt because they are preliminary recommendations or opinions on policy developments."
An appeal also seems likely because Beshear, a Democrat who might run against Bevin in 2019, is already at odds with the governor on several issues.
The justice center has been a vocal opponent of the waiver proposal, which mainly targets able-bodied adults who qualify for Medicaid under the expansion of the program to those who earn up to 138 percent of the federal poverty line, under the Patient Protection and Affordable Care Act.
In addition to saving the state money, the new plan is designed to encourage participants to have a higher level of involvement in their health care through things like premiums and work requirements -- both of which the justice center adamantly opposes. It also says there will be 95,000 fewer Kentuckians on Medicaid in five years than if the plan isn't implemented.
Regan pointed out that it's important to know that the Cabinet is accurately reporting what thousands of Kentuckians said during the two open-comment periods (most of which were in opposition to the plan) and what the federal government is requiring the state to do to get it approved.
"The process has not been transparent. We don't really know what the state is saying to the government. We don't know what the federal government is saying back. This has been going on now since last year," Regan said. "We think we are entitled to that information to evaluate whether what the state is saying is accurate."
The cabinet asserted that the waiver is a "draft" and should be exempt because if released it would "'potentially disrupt the negotiation process,' and 'could also create confusion among individual consumers' in addition to program staff," the opinion said.
from Kentucky Health News http://ift.tt/2g1jvH9
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