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State: Medicaid report isn't an Alaska 'public record'

Among those in the Alaska public keenly interested in the report? Alaska Dispatch has filed a Freedom of Information Act request with the Alaska Department of Health and Social Services (DHSS). So too has at least one lawmaker. Other members of the Alaska Legislature now say they believe the study should be made public. Loren Holmes photo

JUNEAU -- The Parnell administration is keeping a tight grip on a state-funded analysis of Medicaid expansion in Alaska, despite the state's Public Records Law that's intended to make public information available to the public.

Among those in the Alaska public keenly interested in the report? Alaska Dispatch has filed a Freedom of Information Act request with the Alaska Department of Health and Social Services (DHSS). So too has at least one lawmaker. Other members of the Alaska Legislature now say they believe the study should be made public.

Expansion of the Medicaid program to as many as 66,000 additional Alaskans by some estimates would bring hundreds of millions of new dollars into the state.

Parnell rejected the Medicaid expansion soon after the Supreme Court gave states discretion over that particular plank of the national health reform law. Lately, and amid growing public pressure, the governor has indicated he may be willing to reverse course.

The report, compiled by the Lewin Group, a respected health-care consulting firm, is now in the hands of DHSS Commissioner Bill Streur. The legislators are among those to whom Streur has refused to provide the report.

"Behind the scenes, we continue to work that very aggressively," said Rep. Mark Neuman, R-Big Lake, who chairs a subcommittee looking at Streur's budget, the largest in state government.

Neuman said he understands Streur's desire to put out credible information, but also wants the public to have access to the report.

Democratic senators have attempted to use the Public Records Law to obtain the report, but have been unsuccessful as well.

"Alaskans deserve to see the Lewin report in order to make their own judgments about what’s right for Alaska,” said Sen. Hollis French. French is an Anchorage Democrat who's running for lieutenant governor; he also is a former state prosecutor.

Streur has refused to say why he wants to keep the report -- commissioned at a cost of $80,000 in taxpayer dollars -- secret from lawmakers and the public. And recent legislative testimony raises questions about whether Streur has legal standing to withhold the report.

Without cause for secrecy, Alaska state officials are flouting the spirit of the public records law. Why so hush-hush?

"The Department of Health and Social Services (DHSS) withheld the record because it is exempt from disclosure under the deliberative process privilege," said Jason Hooley, who was recently transferred to DHSS from the governor's office. 

According to state regulations implementing the public records law, "denial of a written request must be in writing; must state the reasons for the denial, including any specific legal grounds for the denial." Hooley declined to explain to Alaska Dispatch why he had not provided legislators a reason for withholding the report. He also did not offer precedent for the legal justification that such a report qualifies under deliberative privilege.

"I understand your question, but I don't have anything to add," he said.

Parnell is expected to decide by the Dec. 15 release of his budget proposal for next year whether or not to include Medicaid expansion in his budget. The Lewin report will remain secret until then, officials with the health department said. 

But while Alaska courts have recognized a deliberative process privilege to allow state employees to make open and honest recommendations to their superiors, that privilege is not absolute.

For example, the courts have determined that the deliberative privilege does not apply to purely factual information -- which is precisely how Streur has described the report in legislative hearings.

"Largely what they provided us was background material, actuarial analyses, those kinds of things," Streur said.

It looks at things like how many Alaskans might be covered by the expansion, and what the ultimate cost to the state might be if there were also savings because some of those Alaskans are already getting services under other programs.

All the state sought was data, he said.

Lewin Group was told "give us the facts on Medicaid expansion, good and bad," Streur said, and that's what they got.

"It was a balanced report that we received," he said.

Streur said his department has been studying the information in the Lewis report since it received it last spring. It will be part of the recommendation he makes to the governor, Streur said. But even that recommendation will only lay out options for a final decision by Parnell.

The Lewin report has been sought by legislators and the public because while there are other cost estimates of Medicaid expansion available, state decision makers will rely on it.

Other estimates come from the Alaska Native Tribal Health Consortium, which commissioned its own report on the benefits of expanding Medicaid. The Urban Institute produced a report as well.

Streur told legislators that other reports may have been biased in favor of expansion, but that the state's Lewin report was balanced.

"I'm not sure that every other report that's come out to date has been balanced," he said. They appeared to say "tell us why we should expand Medicaid in Alaska," he said.

Contact Pat Forgey at pat(at)alaskadispatch.com