Advocates for Medicaid clients squared off today with four HMOs and the Department of Social Services at a Freedom of Information Commission hearing in Hartford. The issue: Will the public get to see documents telling us what the HMOs pay doctors to be part of the state’s Medicaid network?Throughout the controversy, DSS has waffled between the two camps. Governor M. Jodi Rell ordered the department to ask the HMOs for the documents. But attorney Sheldon Toubman of New Haven legal aid said DSS has tailored its requests so narrowly as to allow the HMOs to evade its contractual duties and barely reveal any information about its performance running Medicaid.Why is DSS being so wishy-washy with the HMOs?Is it because executives with two of the four HMOs made a veiled threat to a DSS official, implying the companies might pull out of the state’s managed care Medicaid program unless DSS backed their attempts to avoid telling the world how it spends $625 million in taxpayer money?

Toubman raised that specter at the hearing. He attempted to introduce into evidence identical letters written by Health Net and PreferredOne executives to DSS deputy commissioner Michael Starkowski. In them, the executives reiterate their position that the HMOs are not covered by FOIA, but instead by their contract with the state.“Those terms have been the subject of extensive negotiation, debate and compromise,” wrote Health Net vice president Janice Perkins. “Health Net relied on the terms of that agreement when it decided to become part of the Medicaid managed care program; Health Net continues to rely on it in deciding to continue our involvement with the program.“In Toubman’s view, that language carries the implication that the HMO may consider suspending its participation in Medicaid, should DSS fail to support its efforts. However, Health Net attorney Linda Morkan of Hartford-based Robinson & Cole slammed that idea.“Nothing in either letter could be a threat,” she told FOIC hearing officer Victor Perpetua.A few minutes earlier, Toubman put the issue to DSS director of medical care administration David Parrella.“Have any managed care operators threatened not to participate in Medicaid if the department doesn’t resist public information requests?” Toubman asked.“Not to my knowledge,” Parrella responded.The bulk of the hearing today took up the issue of whether the four HMOs provide a “government function” for the purposes of FOI law. If the commission rules that they do, then the next question will be whether the rates they pay doctors are considered trade secrets. If the rates are not trade secrets, then the public can access documents directly from the HMOs about how the companies spend $625 million in taxpayer money. Thus the HMO lawyers’ goal was to make it seem like DSS exercises near total control of the Medicaid program, while the HMOs just administer the state’s policy directives. Toubman, on the other hand, questioned Parrella intently about how the HMOs have the sole authority to decide what medical services will require preauthorization, and whether the company will use a preferred drug list, meaning a doctor must get approval to prescribe medication not on the list.In Toubman’s reasoning, those decisions are actual policy choices made by the HMOs, not just administrative functions, meaning the HMOs provide a government function.Just before the lunch break, Perpetua told the parties he understood both arguments, and that the primary controversy isn’t a factual one.“It’s a legal question as to what’s a policy,” Perpetua said. “It seems to me a legal question.” DSS, meanwhile, doesn’t concede the HMOs provide a government function, and they’ve asked the attorney general’s office for an opinion on the trade secrets issue, said departmental spokesman Matthew Barrett. If Perpetua rules the HMOs don’t provide a government function, the Medicaid advocates can still go after the documents DSS has in its possession. They just won’t be able to go after the company directly. Perpetua gave no specific date as to when he might rule.