Md. health insurance exchange board violated open meetings law, compliance board says

Correction: An earlier version of this article stated that Joshua M. Sharfstein, chairman of the exchange board, took an online course about the open meetings law after a complaint was filed. He completed the course on March 4, and a complaint was filed on March 11. The story has been corrected.


Maryland Gov. Martin O’Malley holds up a phone number for people to call to get help enrolling in health insurance in the state’s health care exchange on March 28. Joshua Sharfstein, Maryland’s health secretary is seated next to O’Malley, and Carolyn Quattrocki, the interim director of the exchange, is next to Sharfstein. (Brian Witte/AP)

The board that oversees Maryland’s troubled health insurance marketplace repeatedly violated a state law that requires such groups to fully explain their reasons for meeting behind closed doors, the Maryland Open Meetings Compliance Board concluded this week.

The Maryland Health Benefit Exchange Board of Trustees failed to fully disclose and document its reasons for confidentiality, the compliance board wrote in an opinion released Tuesday.

That raised questions about what the board was doing at a time when the exchange’s costly and glitch-plagued Web site was one of the worst-performing in the country.

The exchange board has acknowledged that it violated the law and promised to change its ways. Joshua M. Sharfstein, Maryland’s top health official and chairman of the exchange board, completed an online course about the open meetings law on March 4.

When a public body gathers behind closed doors, the public is entitled to know when and where the meeting will occur, why the public cannot attend and what, generally, will be discussed, according to state law. Afterward, the board must provide a summary of its discussion.

Craig O’Donnell, a journalist at the Kent County News, on the Eastern Shore, filed complaints against the exchange board. He said the board held nearly 50 closed meetings and in nearly every case did not follow the law.

“The public has the right to decide if the board or body is being too secretive — not the board,” O’Donnell said in an interview.

The compliance board did not detail every closed meeting that violated the law, saying that was unnecessary because the exchange board had promised to “take concrete steps to conform” to the law. But it examined several meetings of particular interest, including a Feb. 23 conference call during which the exchange board voted to fire Noridian Healthcare Solutions, the North Dakota-based company that was hired to build the health insurance Web site.

The purpose of that meeting was not publicly disclosed until the next day. Even after the firing was announced, Sharfstein declined to say how many board members voted for the action and how many against it.

O’Donnell wrote in his complaint that the meeting “was a deliberate attempt to evade public scrutiny” and that the “public is justified in assuming shenanigans.”

On the evening of Feb. 22, a Saturday, the exchange board posted on its Web site that it would meet via conference call the next night. But board staff did not alert the public directly or make any additional effort to circulate information about the meeting.

“Only by happenstance would a reporter or other person interested in the Board’s meetings check the [exchange board’s Web site] on a Saturday evening to see whether the Board would be meeting that Sunday,” the compliance board’s opinion states, declaring such notice “inadequate.”

Members of the public who called to listen in on the conference call received this explanation from Sharfstein before the meeting was closed to the public: “The purpose of this meeting is to discuss some procurement-related matters in closed session.”

The exchange board later provided documents with additional detail, but the information was not enough for the public to fully understand why confidentiality was needed, the compliance board wrote. The compliance board was “also given pause” that the exchange board voted on the firing behind closed doors, concluding that “the law is particularly unclear” on whether that action was legal.

Sharfstein and other members of the exchange board had an opportunity to use their new understanding of the law when they voted at their monthly meeting Tuesday to go into closed session.

“I have a very specific thing in here to read before we go,” Sharfstein said dramatically, prompting laughter from board members and exchange officials. He said the board needed to meet privately to hear legal advice regarding real estate and the procurement of services to assist with the Web site’s replacement, among other things.

“Is that good?” Sharfstein asked L. Kristine Hoffman, an assistant attorney general who advises the board. She told him to cite the part of the law that allows such a meeting.

“Oh? I have to read the exact part of the law?” Sharfstein said.

“I think you should go more than less,” Hoffman said with a laugh.

Sharfstein read off the article number — even the “little three, little seven, little eight” at the end.

“Is that okay?” he asked, receiving Hoffman’s approval. “All right. Excellent.”

Jenna Johnson writes about Maryland politics, including the General Assembly, the administration of Gov. Martin O'Malley and the 2014 election.
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