A Superior Court judge is calling for new legislation—or contract renegotiations—to solve an impasse over the disclosure of documents related to how three state-contracted HMOs are spending $700 million in taxes to provide Medicaid health care services to the poor.Superior Court Judge George Levine agreed Thursday to delay enforcement of his decision last month that would have forced Community Health Network, Anthem, and Health Net of Connecticut to disclose information about how they are insuring 310,000 low-income children and families for the state.The three companies were asked to disclose their provider fees and drug lists more than a year ago by legal-aid lawyers and a Yale public-health professor. That request was upheld by the state Freedom of Information Commission, which is now a defendant along with the original complainants in a suit filed by the HMOs. The HMOs say they have a right to protect trade secrets even though they’re being paid by public money.
Levine, who sided with the Freedom of Information Commission and health care advocates last month, sided today with the health care companies. He said “there’s certainly a risk if the stay is denied that irreparable harm will be suffered” by the health care companies, while if the stay is upheld there would be little harm to the public.Last month Levine said the companies should disclose the information requested by the Freedom of Information Commission because they perform a government function and the public should be able to hold the companies accountable for how the money is spent. During the initial trial, the plaintiff health care companies argued the information contained trade secrets making it exempt from disclosure. Clearly, there is a conflict of interest here, Levine said. The public is interested in the details of the insurance policy provided by the state and the insurance companies have an interest in keeping their proprietary business information secret. “This really cries out for legislative determination,” he opined. Community Health Network’s Attorney Shelia Huddleston said if Levine denies the motion to stay, the court would infringe on its right to due process. At the moment there’s a structural problem with the statute, she said. Right now the health care companies must disclose information to the Department of Social Services, which determines if it contains any trade secrets. At the moment the companies have decided not to turn over the documents requested because they don’t trust DSS not to disclose them. Levine called this the “trust me” clause because the HMO’s would have to rely on DSS to keep the information secret even if it’s asked to disclose it. Attorneys for the Freedom of Information Commission, Comptroller, state Health Care Advocate and three other defendants opposed the HMO’s motion to stay. The defendant’s attorneys argued an additional amendment one of the four health care companies negotiated with DSS would resolve the due process issue for the court. In the amendment, plaintiff Wellcare of Connecticut agreed to comply with requests for information, but only if it has the opportunity to mark any documents it believes are exempt from disclosure. If the Freedom of Information Commission disagrees with its exemption, it will give Wellcare 14 days to file an injunction in court.Huddleston admitted that the FOIC has a good track record in upholding trade secret claims.New Haven Legal Aid Attorney Sheldon Toubman said the Wellcare amendment would also apply to Community Health Network, Anthem, and Health Net of Connecticut. But Levine didn’t buy the defendant’s argument. “We’re looking at endless litigation,” Levine said at one point during the hearing this morning in New Britain Superior Court. He concluded that if the legislature passes an amendment, then “we won’t have these fights anymore.” Levine speculated that by the time the court adjudicated this issue, the health care companies and the state will have renegotiated the disputed contracts.Levine asked Assistant Attorney General Hugh Barber, who represents DSS, if the state has begun negotiations on the new contract. The old contract expires June 30. But Barber said the state has not begun negotiations. Barber also said he anticipated the state would attempt to extend its existing contracts with the HMOs instead of negotiating new ones.Majority Leader Christopher Donovan, D-Meriden, said the legislature can resolve this issue by taking the contracts away from the HMO’s. He said the state could just administer the program itself, like it did 10 years ago before it hired the HMO’s to do it. “It’s basic government accountability,” he said. A study commissioned by DSS found only 26 percent of new HUSKY enrollees received calls back from a doctor’s office to set up an appointment, leaving 74 percent who did not receive calls back, Donovan has said. This means “74 percent were denied services and we’re paying $700 million for this lack of service. Why?” The Human Services Committee will be holding hearings on the issue in the next few weeks.While both sides still disagree on the issues, they were able to agree on a transfer to the state Supreme Court. Attorneys from both sides said they will ask for a transfer to the Supreme Court and skip the Appellate Court in the process. The Supreme Court Justices will decide whether to hear the case.