Patient Protection and Affordable Care Act draft report documents

To Whom It May Concern:

Pursuant to the Massachusetts Public Records Law, M.G.L. c.66, §10, I hereby request the following records:

All drafts of a report from a special examination initiated by the Division of Insurance in March 2012 for the purpose of understanding the impact that certain changes required by the federal Patient Protection and Affordable Care Act to the size of the small group market and to permissible rating factors would have on coverage in Massachusetts. Any report on this topic by Oliver Wyman and Gorman Actuarial, and any draft of the report referenced in the Division of Insurance's and the Health Connector's December 26 joint letter (available here: http://www.mass.gov/eohhs/docs/eohhs/healthcare-reform/state-fed-comm/121226-comment-letter-market-rules.doc) to the Centers for Medicare & Medicaid Services regarding health insurance market rules and rate review (CMS-9972-P).

All documents, including power points, that discuss the financial and policy implications in both the public and private sector of the Affordable Care Act on Massachusetts. Including all documents that estimate the impact on those currently enrolled in an insurance plan offered through the Connector.

I also request that, if appropriate, fees be waived as we believe this request is in the public interest, as suggested but not stipulated by the recommendations of the Massachusetts Supervisor of Public Records. The requested documents will be made available to the general public free of charge as part of the public information service at MuckRock.com, processed by a representative of the news media/press and is made in the process of news gathering and not for commercial usage.

I expect the request to be filled in an accessible format, including for screen readers, which provide text-to-speech for persons unable to read print. Files that are not accessible to screen readers include, for example, .pdf image files as well as physical documents.

In the event that fees cannot be waived, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 10 business days, as the statute requires.

Sincerely,

Tom Nash

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on March 21, 2013. Please let me know when I can expect to receive a response, or if further clarification is needed.

Thank you for your help.

Mr. Nash:

This is in response to your initial public records requests received by the Division of Insurance ("Division") on March 25, 2013 and follow-up letters received on April 8, 2013. I apologize for the delayed response. Specifically, you request copies of records held by the Division of Insurance as outlined below:

"All e-mails that are addressed, including carbon copies, to any of the following individuals: Joseph Murphy, Barbara Anthony, Mo Cowan, Brendan Ryan, and Rosemary Powers that discuss draft versions of a report from a special examination initiated by the Division of Insurance in March 2012 for the purpose of understanding the impact that certain changes required by the federal Patient Protection and Affordable Care Act to the size of the small group market and to permissible rating factors would have on coverage in Massachusetts. Any report on this topic by Oliver Wyman and Gorman Actuarial, and any draft of the report referenced in the Division of Insurance's and the Health Connector's December 26 joint letter to the Centers for Medicare and Medicaid Services regarding health insurance market rules and rate review (CMS-9972-P). Any emails sent or received from April 30th, 2012 to March 15, 2013."

"All drafts of a report from a special examination initiated by the Division of Insurance in March 2012 for the purpose of understanding the impact that certain changes required by the federal Patient Protection and Affordable Care Act to the size of the small group market and to permissible rating factors would have on coverage in Massachusetts. Any report on this topic by Oliver Wyman and Gorman Actuarial, and any draft of the report referenced in the Division of Insurance's and the Health Connector's December 26 joint letter (available here: http://www.mass.gov/eohhs/docs/eohhs/healthcare-reform/state-fed-comm/121226-comment-letter-market-rules.doc) to the Centers for Medicare and Medicaid Services regarding health insurance market rules and rate review (CMS-9972-P)."

To the extent that that the Division possesses records responsive to your request for emails to the named individuals, those documents are exempt from disclosure pursuant to M.G.L. c. 4, §7(26)(d), commonly known as the policy development exemption. These documents possess a deliberative or policymaking character and relate to an ongoing deliberative process. Until such time as a final determination has been made and the deliberative process has concluded, the Division must deny access to these requested records.

Additionally, your request for copies of draft examination reports is denied as these documents are exempt from disclosure pursuant to M.G.L. c.4, §7(26)(a), commonly known as the statutory exemption. This exemption applies to records that are specifically or by necessary implication exempt from disclosure by statute. As you have noted, the requested documents are reports of a special examination. All examination workpapers, including draft reports, are specifically exempt from disclosure pursuant to M.G.L. chs. 175, §4 and 176G, §10. Thus the Division must deny access to the requested documents. A final report of examination is a public record and will be available upon completion.

Pursuant to M.G.L. c.66, §10 and 950 CMR 32.08, you may appeal this denial of access to public records to the Supervisor of Public Records within ninety (90) days. Please contact me should you require additional information.

Hi Mindy,

My apologies for that follow-up email, we did get this response.

Thanks

Tom

Dear Supervisor Williams

I appeal the denial of the included request on the following grounds:

The rejection cites a section of the general laws M.G.L. c. 4, §7(26)(d), that says “this subclause shall not apply to reasonably completed factual studies.” The report has since been released.

Also, Chapter 175, (8) notes: "Nothing contained in this section shall be construed to limit the commissioner’s authority to use and if appropriate, to make public any final or preliminary examination report, any examiner or company work papers or other documents, or any other information discovered or developed during the course of any examination in the furtherance of any legal or regulatory action which the commissioner may, in his sole discretion, deem appropriate."

Since the report is now available, there does not appear to be any reason to use the exemptions given to withold the information requested.

Thanks for your attention to this matter.

Tom Nash
MuckRock