Minnesota Lawyer
Like the proverbial tree falling in the forest that may or may not make a sound, Minnesota’s health care plan contracts fell under the state’s government-data sunshine law last summer — with little apparent noise.
Health-plan companies won a year-long delay in 2014 from a new law clarifying that all government contractors are subject to the Minnesota Government Data Practices Act, whether their contracts say so or not. The health plans’ effective exemption from the clause ended this year on June 30.
At stake is the fate of pricing data that the health plans want to keep to themselves, calling the figures trade secrets. Some analysts warn that the net effect of health-plan competitors learning one another’s pricing data would be increased prices for health care.
Meanwhile, open-government advocates and state-budget watchdogs argue that at least some of the data in health plans’ contracts should be considered public data. And that’s what the 2014 changes, extended to health plans last summer, were meant to do.
So Rep. John Lesch, DFL-St. Paul, sponsor of the 2014 legislation, got a surprise at last Wednesday’s meeting of the Legislative Commission on Data Practices, when he asked how many requests for data in health plans’ contracts had been filed since June 30.
Nathan Moracco, assistant commissioner for health care at the Minnesota Department of Human Services, told the panel that he knew of none.
Lesch then recalled what advocates of the delay for health plans claimed during the debate over his bill in 2014: “‘We need to hit the pause button because all kinds of bad things are going to happen if we don’t just give this a year before we disclose all this information,’” he said. “So admittedly, June 30 comes and I’m expecting this deluge of information, because that’s what everyone said on both sides, leading up to the time we passed the legislation.”
But the lack of requests came as less of a shock to Moracco, who said the 2014 changes didn’t alter the classification of data his agency decides is nonpublic. As for data in contracts between health plans and doctors or hospitals that DHS doesn’t hold, Moracco said that would be for data seekers to request directly from the health plans, which would have to determine which of their functions are government functions and which data they hold constitute public data.
Lesch’s legislation — carried in the Senate by Sen. Kari Dziedzic, DFL-Minneapolis — was known as the Timberjay Bill, named after the chain of Iron Range newspapers and the legal case their owner brought seeking the release of a contract to build a school in St. Louis County. A 2013 Minnesota Supreme Court ruling against the newspapers led Lesch and Dziedzic to try to tweak the Data Practices Act to explicitly include such contracts.
The bill also required a study, which was issued by the DHS last February under the title “Health Care Contracting and the Minnesota Data Practices Act.”
Earlier at the hearing Stacie Christensen, director of the Information Policy Analysis Division in the Department of Administration, told the panel that the Supreme Court “purposely chose not to address the government function.”
That prompted Sen. Warren Limmer, R-Maple Grove, to suggest it might be easier to define what is not a government function.
Matt Ehling, testifying on behalf of the Minnesota Coalition on Government Information, said the definition of government function is likely to arise in future litigation.
Kathryn Kmit, director of policy and government affairs at the Minnesota Council of Health Plans, said the type of transparency open-government advocates are pushing could discourage business-to-business negotiations.
Lesch expressed overall dissatisfaction and confusion with the state of affairs.
“We’re operating completely in an information quagmire here,” he said. “I don’t know what DHS holds. I don’t know what the health plans hold. And there’s probably going to be some friction in even being able to determine that.
“But I think as a legislator making policy in this area it would be really worthwhile for us to have some sense of that. And I don’t have that right now and haven’t [had it] even when we passed this.”
Susan Kent
The status of health care plan contracts under the Data Practices Act came up when the commission met for the first time last year with former state representative Mary Liz Holbergas chair. At Wednesday’s meeting, Sen. Susan Kent, DFL-Woodbury, the commission’s new chair, noted the panel is down a member since the resignation of Sen. Branden Petersen, R-Andover.
Limmer told Kent the Republican Caucus has a candidate to fill the empty seat on the panel, but a final decision on replacing Petersen is still in the works.
