IPAD does a variety of things, from hosting trainings on the MNGDPA, to providing opinions on how the law is implemented by government agencies. On occasion, IPAD also drafts recommendations for legislation to modify the MNGDPA. One of their recent legislative proposals was sent to us by open government lobbyist Rich Neumeister. We’ve posted it in our document archive.

The following is a summary of the principle modifications that the legislation would make to the MNGDPA:

Section 7, Subd. 2(b) of the MNGDPA would be removed. This subdivision now requires the “responsible authority” of a government agency to prepare and update public data access procedures, and to publicly post them.

Section 8, Subd. 3(a) would have additional language added, specifying that after government data has been provided to a person, that person cannot access the same data for six months.

Section 8, Subd. 3(g) would entail a new section specifying that “electronic geospatial government data” could be shared between government agencies free of charge.

Section 9, Subd. 4 would restrict the ability of the subjects of government data to appeal “challenge determinations” related to certain data, if a government agency has corrected inaccurate data that it holds.

Section 10, Subd. 7 would include language that would alter certain procedures used to develop summary data from nonpublic data, including procedures for paying for summary data, and the addition of a nondisclosure agreement.

Section 17 would add language expressly allowing the “responsible authority” of an agency to determine what data constitutes “security information” that cannot be disclosed to a requester. The reason for such a classification would need to be provided to a requester in writing.

Section 24 would include language noting that “volunteers performing services” for a government entity would fall with the MNGDPA’s definition of “Personnel Data.”

Section 25 would be altered so that formal complaints made against against public officals would remain public, while at the same time narrowing the definition of “public officials” to exempt “members of boards or commissions appointed by the governor” or other elected officers. Complaints against such individuals would instead seem to be accessible via the terms of Section 42.

Section 28 would include language further restricting information about the identity of any individual who files a complaint of sexual or other harassment.

Section 51 would be modified to make certain financial data non-public once criminal investigative files had become inactive

After the show, Senator Marty shared two letters with PRM, which we have posted in our document archive. The letters entail correspondence between Senator Marty and CMS, the federal office that oversees the disbursement of Medicaid matching dollars to the state of Minnesota.

In his letter of May 18, 2011, Senator Marty asked that CMS not grant the waiver necessary to allow federal Medicaid dollars to flow to the state, due to the fact that he felt that Minnesota’s public programs (as currently administered) would waste the funds through financial mismanagement. CMS ultimately granted the federal waiver, which prompted a second letter from Senator Marty on September 6, 2011.

Minnesota Department of Health – document inspection
On Feburary 3rd, PRM’s Matt Ehling inspected a batch of documents at the Minnesota Dept of Health (MDH). The documents were related to the Maine Health Information Center, which has contracted with MDH to collect data about individual “encounters” with Minnesota’s public health care programs. Such data collection was mandated by the state legislature in 2008, in order to provide a basis to understand the relative level of quality provided by such programs. Our conversations with MDH employees indicate that the department is still compiling its first reports based upon the Maine Health-collected data.

ACLU sues over UAV/FOIA
On February 1st, the ACLU filed suit against the Office of Legal Counsel, the CIA, and others in a FOIA matter related to unmanned aerial vehicles (UAVs). In October, the ACLU had requested information from multiple federal agencies regarding the use of UAVs against U.S. citizens. At the time of filing, no agency had produced records responsive to the ACLU’s requests.

The law firm of Dorsey and Whitney is representing the ACLU. Several Minneapolis-based Dorsey attorneys are listed on the complaint, which was filed in the Southern District of New York.

PRM currently has an administrative appeal pending with the Department of Justice related to another UAV-related FOIA request.

Last month, the Minnesota Department of Human Services (DHS) released a large batch of internal documents to PRM. Most of these documents dealt with the process of “rate-setting” for Minnesota’s public health care programs. These programs are paid for by both state and federal funds, and are administered through managed care plans, whereby managed care organizations (HMOs, in many cases) contract with the State, and are given lump-sum payments to disburse out to providers (hospitals, clinics, and others) who service various enrolled populations.

Brief history
Since the early 1990s, the amounts paid to managed care organizations (MCOs) have been established by DHS, in conjunction with outside actuarial firms. These firms are used to verify that the rates established by DHS are “actuarilly sound” before DHS finalizes its contracts with MCOs. In recent years, this rate-setting process has been the subject of controversy, as we briefly described in a previous PRM post on this subject.

This post offers an overview of documents that provide a window into the DHS rate-setting process, as it existed from 2007-2009.

It should be noted that the DHS rate-setting process has changed since many of these documents were written. In 2011, the Minnesota Legislature established a two-year pilot program for the Twin Cities area that replaced the DHS rate-setting model with a competitive-biding process, with the intention of keeping costs down through open competition. 2012 will be the first year in which select MCOs operate under contract rates established through this process.

Document overview
DHS provided several hundred pages of memos and reports to PRM, many of which we are still evaluating. Most of the documents were produced by Milliman, Inc., the actuarial firm retained by DHS to help establish the rates for Minnesota’s public health care programs. Many of the Milliman reports provide proposed rates for coming program years, and review the methodologies and assumptions about how these “capitation rates” were calculated for future program periods.

Below is a list of select DHS document summaries, with key names and dates noted, as well as pertinent quotes and data. Above the name and date set is a capsule of key points, along with a link to the document posted in PRM’s document archive.

The summaries are provided in no particular order, but relate to documents that contain interesting or notable information. We will post additional summaries soon.

Collection of payment data from MCOs
MNGDPAMNDHS2011_pd_097
October 9, 2009
Draft DHS Memo regarding Managed Care Payment Data Collection and Reporting

Memo describes the format for the collection of payment data from managed care organizations (MCOs). The collection of this information was mandated by the legislature in 2008, in response to a report issued by the Office of the Legislative Auditor, regarding the need for increased oversight and reporting about the activities of MCOs under contract with DHS. Specifically, the memo notes that new reporting intends to track the disparity between “DHS’s targets for MCOs’ net income, and MCOs’ actual net income.” The memo goes on to explain the parameters of the reporting template.

No auditing of DHS data
MNGDPAMNDHS2011_pd_035
Dec 10, 2009
Letter from Leigh Wachenheim of Milliman, Inc. to Karen Peed of DHS

Letter details changes to benefit and reimbursement rates for various public health care program categories. Analysis undertaken in order to help DHS guide its capitated rate setting process.

Quotes: “I have performed a limited review of the data … for reasonableness and consistency, and have not found material defects.”

“In performing my analysis, I have relied upon data and other information provided to me by DHS. I have not audited or verified this data and other information. If the underlying data is inaccurate” … then “the results of my analysis may likewise be inaccurate …”

Similar language is included in the cover letter of all rate-related letters.

State shutdown – effect on provider payment reports
MNGDPAMNDHS2011_pd_106
August 17, 2011
E-mail from Chandra Breed to various DHS employees

E-mail notes the impact that the 2011 State shutdown had on the submission of “provider payment reports.”

Changes to “capitation rates” due to changes to GAMC
MNGDPAMNDHS2011_pd_040
March 10, 2009
Letter from Leigh Wachernheim of Milliman, Inc. to Karen Peed of DHS.

Letter discussing “capitation rate changes by rate cell” related to MNCare costs. Changes are noted as a reaction to legislative changes to the General Assistance Medical Care program (GAMC).

Quotes: “There may be significant migration of current GAMC enrollees into MNCare in the near future due to legislative changes. The factors in this letter to do reflect the impact of this potential migration.”

Overview of contract renewal/rates for MnDHO-DD program
MNGDPAMNDHS2011_pd_043
December 27, 2007
Financial review checklist for At-Risk Capitated Contracts Rate Setting; other documents related to MnDHO-DD program, including Milliman rate-setting letter

Summary of the contract renewal for the MnDHO-DD program, administered by UCare Minnesota. MnDHO-DD provides health care services to a location-specific sub-set of Minnesota’s disabled population. MnDHO-DD is one small state program among many.

Quotes: “The MnDHO-DD payment model is designed to make Medicaid payments more accurate and timely, especially for enrollees with varying medical needs.”

“Minnesota Disability Health Options is a voluntary managed care program for people with Developmental Disabilities (MnDHO-DD) age 18-64, who live in Hennepin, Carver, or Scott Counties and receive their residential and rehabilitative services from Mount Olivet Rolling Acres (MORA) Partners Choice Network (PCN).”

Under MnDHO, “the State contracts for Medicaid services with a Medicaid Special Needs Plan (SNP) in order to integrate Medicare and Medicaid services.” The SNP is approved by the CMS, the federal agency that oversees the matching of Medicaid dollars to state programs to serve subsets of people defined by the State. As of December 2007, there were 45 people enrolled in MnDHO-DD. The program is only open to a maximum of 120 individuals.

“For 2008, the State has updated and adjusted rates that had been approved for the 2007 rate year. The rates reflect fee-for-service experience updated to the 2008 calendar year rating period, based on trends provided by the Reports and Forecast division of DHS.”

Milliman memo
“The State assigns MnDHO-DD enrollees to one of six Rate Cell categories … Within the Rate Cell Categories, MnDHO-DD Medicaid rates have up to four main rate components:”

1. Acute care service rates;

2. “LTC” bundled service rates. These include home health aides, personal care assistants, and skilled nursing;

3. Various sorts of prescription drug coverage;

4. Stop-loss reinsurance to cover “catastrophic acute care costs” that may arise within the highest-risk enrollee population.

“Projection of expenditures”
“Costs under this project may not exceed costs that would have been incurred under fee-for-service.” … “Total costs of 2007 were $245,974. Total costs for 2008 are projected to be $269,770 … for a total increase of 5.8%”

The rate-setting process is described as one where the State sets rates using an “open cooperative contracting process” between DHS and the MCO participating in the MnDHO-DD program. DHS provides the MCO(s) participating in the program with “actuarilly sound rates” developed by the State in consultation with its actuaries. MCOs must pay for all services required by those in the population served from the contract payment provided by the State. The MCO must absorb any losses if costs exceed payments, although stop-loss reinsurance is part of the covered costs.”

In this report, rates were trended forward to the midpoint of 2008, using forecasting data provided by DHS.

“Administrative cost allowance calculations”
“Overall we assumed managed care savings of 5.5% and administration/profit of 5.5% for the 2008 contract year.”

“Medical cost/trend inflation”
Trends were affected by “a legislatively mandated cost-of-living adjustment (COLA)” for service rates in home and community based services.

Milliman rate certification letter
The document batch also contains Milliman’s actuarial certification letter for the MnDHO-DD program for the year 2008, authored by Eric P. Goetsch.

When the Legislature convenes on January 24th, Health and Human Services reform will be the subject of a presentation in room 200 of the State Office Building. The 2:30pm presentation will deal with “provider peer grouping” as it relates to the evaluation of the cost and efficacy of public health care programs. PRM will have a summary of the presentation available soon.

Seeking OLC advice on the NDAA

PRM has submitted a FOIA request to the Office of Legal Counsel seeking any opinions or memoranda that the office may have provided to the Obama administration regarding domestic military detention authorities. Debates over such authorities have arisen since the passage of the National Defense Authorization Act for Fiscal Year 2012 (NDAA).

Seeking Marv Davidov’s FBI files

Long-time Twin Cities peace activist Marv Davidov died on January 14, 2012. Davidov was involved in multiple protest movements during the course of his life, including the decades-long Honeywell Project. That effort sought to dissuade defense contractor Honeywell, International from engaging in the manufacturing of armaments and weapons systems.

During the 1970s and 80s, Davidov became involved in a lawsuit related to FBI infiltration of the Honeywell Project. The suit was settled out of court in 1985. PRM has submitted a FOIA request to the Federal Bureau of Investigation seeking any files related to Davidov.

In 2010, Dave Feinwachs – the general counsel for the Minnesota Hospital Association – produced a video that raised several questions about the transparency of Minnesota’s public health care programs – particularly in relation to the amounts of state money that insurers were keeping for administrative expenses, as opposed to laying out for provider reimbursements and patient care. Such concerns had been previously raised and investigated by former Minnesota Attorney General Mike Hatch.

The Feinwachs video also included several other critiques, including a criticism that it was too difficult to gauge the cost-effectiveness of Minnesota’s public programs. The video caused a firestorm within public health circles. Feinwachs was subsequently fired from his job, and is currently suing his former employer in Ramsey County Court over defamation and other matters.

The debate over the transparency of Minnesota’s public health care programs led to the introduction of several proposals during the 2011 legislative session. Last year, executive-level action took place as well. PRM will soon post a history of the debate over Minnesota’s public health care programs, as well as a summary of the policies that have been enacted or proposed as a result of that debate.

The documents that we pursued through our data requests were sought – in part – to provide additional information about program transparency issues, by evaluating the degree to which insurers and providers were complying with state-mandated data disclosures.

The Minnesota Department of Human Services recently released several large batches of documents to PRM, which we have posted. At this time, we are still waiting for more data from the Minnesota Department of Health.

Interestingly, one of the provisions that compels data reporting related to Minnesota’s public health care programs (256B.69, Subd. 9c) was altered by the Minnesota legislature during its last session. Now, “individual-level provider payment and reimbursement rate data” is classified as “nonpublic data.” For more detail, see the summer 2011 edition of the newsletter from IPAD – the Information and Policy Analysis Division of the Minnesota Department of Administration.

On December 30th, PRM filed an administrative appeal with the Justice Department’s Office of Information Policy. The appeal dealt with the Office of Legal Counsel (OLC)’s denial of our October 11 FOIA request. The appeal sought legal opinions related to the use of unmanned aerial vehicles (UAVs) against United States citizens, both here and abroad.

The OLC’s response to our request refused to “confirm or deny” the existence of certain documents, and withheld others based upon several FOIA exemptions.

In our initial request, we asked for three categories of documents:

• Legal opinions about the use of lethal force via UAVs against Anwar al-Awlaki (a U.S. citizen killed in Yemen);

• Legal opinions about the use of lethal force via UAVs against U.S. citizens outside of the United States;

• Legal opinions about the use of lethal force via UAVs against U.S. citizens inside of the United States.

Our appeal focuses exclusively on the third category, which deals with abstract legal analysis intended to guide government actions on the domestic front. Both the Bush and Obama administrations have aggressively sought to protect similar material from disclosure through the FOIA.

OLC memos from the Bush administration that dealt with the use of the military in domestic counter-terrorism and other internal security matters were withheld for years, even when they contained no operational details. The same was true of Bush-era legal analyses that covered non-domestic security issues.

In 2008, Bill Leonard (former head of the Information Security Oversight Office, and a top government classification authority) testified before a Senate committee, and called the classification of a 2003 OLC interrogation memo “one of the worst abuses of the classification process that I had seen during my career.” According to Leonard, the document in question was “pure legal analysis” that should never have been classified.

At the beginning of the Obama administration, there were signs that this trend of excessive classification might abate. In early 2009, the White House declassified a number of controversial Bush-era OLC opinions written by John Yoo and Robert Delahunty. Obama also ordered various modifications to classification protocols through executive orders and memoranda. All of these initiatives were lauded by the government transparency community at the time.

The times, however, have changed. Since then, many federal agencies have construed FOIA exemptions broadly, effectively continuing a Bush-era trend that saw withholding – rather than disclosure – as the default position under FOIA. This has been particularly true in the context of the UAV program that the CIA has relied upon in Afghanistan and elsewhere. While publicly acknowledging the program’s existence (as well as some of its operational details), the Obama administration has kept a lid on releasing UAV-related information through the FOIA.

While there can be a legitimate purpose for withholding operational details of a covert program, the administration has reached much further, as its denial of FOIA requests for basic legal analysis has indicated.

There are few defensible reasons why a legal opinion about a government program cannot be released with appropriate redactions. The OLC has, in fact, released portions of other legal memoranda in a redacted manner. On August 10, 2011, the OLC provided intelligence historian Matthew Aid with several pages of a John Yoo memo on warrantless wiretapping. The memo is heavily redacted, but it reveals just enough about the crux of Yoo’s legal arguments to make the document useful to historians, policy makers, and others. Thus, it seems entirely feasible that the OLC could order a segregated release of the legal analysis underlying government UAV programs. (It bears noting that – consistent with recent trends – two other related memos requested by Mr. Aid were withheld in their entirety.)

Our administrative appeal focuses narrowly on OLC memos and opinions that cover the use of UAVs against U.S. persons inside the U.S. This appeared to be the most fruitful path to pursue, given the domestic nexus, and given a decision in a recent FOIA case regarding CIA-related UAV records. We were mindful of the later, in the event that the administrative process advances to the litigation stage. We will evaluate our next steps within the month, but we first need to see if the DOJ responds to our appeal in a timely fashion.

In related news, Charlie Savage and Scott Shane of the New York Times have filed suit against the Department of Justice, seeking various documents related to targeted killing via the use of UAVs. Savage has pursued the story (and documents) for several months.

Savage and Shane proceeded to litigation after their administrative appeals went unanswered after more than twenty days. Their complaint can be found here.

The link to the Matthew Aid OLC materials comes via Secrecy News.

According to CBS San Francisco, Oakland mayor Jean Quan has appointed an independent investigator to look into police actions directed at “Occupy” protesters in that city during October and November of this year. In multiple instances, Oakland police used CS gas, bean bag rounds, and LRAD technology to disperse protesters.

Earlier this month, New York congressman Jerrold Nadler wrote to Attorney General Eric Holder to seek a Department of Justice investigation into the conduct of the New York City Police Department as it related to the “Occupy” movement.

PRM recently published an editorial that examined the nation-wide police response to the Occupy movement within the context of decades of civil disturbance planning.

Earlier this week, Congress passed the National Defense Authorization Act for Fiscal Year 2012 (NDAA), which contains provisions that could authorize the indefinite detention of persons – including U.S. citizens – under certain prescribed circumstances. Ambiguous language in the NDAA holds open the door to the possible use of indefinite detention on the domestic front.

The NDAA underwent multiple changes over the course of the past several weeks. Lawfareblog has tracked the changes extensively, and provides the best summary history available on the web.

It is worth noting that the NDAA was voted into law on December 15th – the day that Americans traditionally celebrate the adoption of the Bill of Rights. It is also worth noting how many members of Congress – on a bipartisan basis – voted against an amendment that would have excluded U.S. citizens from the NDAA’s indefinite detention provisions.

As has been widely reported, the White House promised to veto an earlier version of the legislation, but withdrew its threat shortly before the Congressional floor vote.

Almost immediately after the passage of the conference committee version of the bill, Senator Dianne Feinstein introduced legislation to alter the NDAA’s detention provisions to ensure that U.S. citizens or lawful permanent residents could not be detained without charge or trial. Her “Due Process Guarantee Act of 2011” can be found here.

As a historical (and coincidental) side-note, I wrote a white paper in 2007 urging that similar legislation be drafted and enacted, so as to curtail broad Presidential claims regarding indefinite detention. The white paper was prepared for the national office of the Bill of Rights Defense Committee – an organization that I had been formally affiliated with from 2003 to 2005.

It is the stated purpose of Public Record Media to “promote civic values such as open, constitutional government.” The ambiguous detention provisions of the 2012 NDAA stand in stark contrast to those values, and deserve to be curtailed or removed.