Examples of Success: States Recognize that Public Disclosure is Essential

Colorado

In Colorado, when the statewide Blue Cross and Blue Shield (BCBS) plan’s proposed conversion was under consideration, the board of trustees attempted to quash public debate by keeping important documents confidential. Community organizations argued against confidentiality, urging the hearing officer overseeing the conversion to require public disclosure of transaction related documents. After hearing both sides’ arguments, the hearing officer stated, “[w]hile I am willing to accept the need for some form of protection for information that truly qualifies for protection under the Colorado Open Records Act, I am concerned that the need for such confidentiality must be carefully balanced against the public’s right to be informed regarding proceedings such as this which will affect the rights and interests of Colorado citizens.”* Ultimately, he ruled in favor of the community and required that most of the documents be made public.

Order Re: Protective Order, In the Matter of Blue Cross and Blue Shield of Colorado Plan of Conversion to a Stock Insurance Company and Application for Amended Certificate of Authority, Case No. 0-97-024, March 11, 1997.

New Jersey

In New Jersey, a large nonprofit health plan, Health Insurance Plan of New Jersey (HIP), was purchased by a for profit plan, Physicians Health Plan (PHP). Although the Attorney General was involved in the approval process, the conversion occurred behind closed doors without any public notice or disclosure. After the conversion had been completed and was announced to the public, several community organizations tried to obtain documents from the Attorney General’s office. Both HIP and PHP opposed the Attorney General’s effort to release the documents. Rather than rely solely on the Attorney General to represent their interests, the groups asked to participate in the court proceeding. They argued that conversions involve public assets and that documents regarding conversions should thus be available for public review and inquiry. The New Jersey court ruled in favor of the community groups, stating that “[t]he changing landscape of the medical profession and medical industry requires that the public, more than ever, has available to it those facts and information which will bear directly on their well-being and ultimately on the delivery of medical services.” The dramatic shift from a non-profit medical provider to a profit making entity requires close scrutiny by not only the Department but by the public as well.”

HIP of New Jersey, Inc. v. New Jersey Department of Banking and Insurance, Superior Court of New Jersey, Appellate Division, A-3002-97T1, March 12, 1998.