Should Covered California be Allowed to Keep Secrets

Three years ago when legislation was written to create California’s health insurance exchange, lawmakers thought it would be a good idea to let the new exchange board keep a few competitive secrets.

Now some legislators aren’t so sure.

Covered California, as the exchange is now known, has the authority to keep all contracts confidential for a year and the health plan rates concealed indefinitely. The exchange can keep other secrets as well — dealing with negotiations, some meeting minutes, training programs and other facets. California’s exchange has more options to keep secrets than any other state-run exchange, according to the Associated Press.

National legislators are jumping into the debate as well. Five Republican U.S. senators sent a letter asking HHS Secretary Kathleen Sebelius to investigate California’s exchange policies on concealing information.

An Associated Press review of the 16 other states building state-run exchanges found the California agency has the most leeway for secrecy and that some specific exclusions from open-records laws might run afoul of the state constitution.

State officials estimate Covered California will spend more than $450 million on contractors by the end of next year.

We asked legislators and stakeholders to explain the advantages and disadvantages of allowing Covered California to keep secrets.

Need To Continue To Strike a Balance on Transparency – Micah Weinberg

The Affordable Care Act can, in some ways, be thought of as a wedding between the private and public sectors. For the marriage to work out, the private sector will have to continue to adapt to the higher level of regulatory structure and public scrutiny that come as a part of the law.

The public sector, for its part, will need to act quickly to keep pace with the innovation in the private market. The current piece of legislation requiring Covered California to be more transparent in its contracting may not have any noticeable impact as it appears to align with existing policy.

However, the push to make Covered California more open about all of its interactions touches on a deeper issue. What kind of an agency is Covered California going to be and will it be able to move rapidly enough to keep up with the private market?

In 2010, when the state was debating its own exchange law, I wrote an op-ed that articulated a number of reasons why the governor should sign the bill. Among them was that, “the legislation gives it an independent, empowered board so that it can adapt and innovate.”

During the start-up period since the passage of this California legislation, the board and staff of Covered California have moved extremely rapidly, adapting as necessary, to set up this new portal to health coverage. They have done so while being remarkably open to the public as they are required to be by state laws such as the Bagley-Keene Open Meeting Act. They have also reached out for a great deal of stakeholder interaction and have held town meetings that were not legally required. This openness to public participation has come with some consequences, such as the occasional deferral of critical issues to subsequent board meetings due to extensive public comment sessions.

Further, the ongoing question about whether information will be kept confidential is part of the uncertainty that may have led certain players in the industry to choose not to participate at least in the first year of implementation.

As we move forward with health reform, it will continue to be important to balance the requirement that Covered California be open and transparent in its dealings with the need for it to be able to adapt and innovate in real time. The people pushing for ever more transparency should acknowledge that there is a public benefit to not having every deliberation occur in public, to not having every document become a matter of public record.

On the other hand, the public has to have confidence that decisions are being made in its best interest and to have the opportunity to weigh in on issues of critical importance. Striking the right balance on this issue will be one of the critical challenges to making this marriage, and the law, work.

Micah Weinberg, CEO Healthy Systems Project for California Healthline