April 25, 2014 SENT VIA E-MAIL: opengov@oag.state.md.us AND FIRST CLASS MAIL Elizabeth L. Nilson, Esquire, Chairperson Open Meetings Compliance Board c/o The Office of the Attorney General 200 Saint Paul Place Baltimore, Maryland 21202 Dear Chairperson Nilson: On behalf of the Board of Trustees of the Maryland Health Benefit Exchange (the Board), and pursuant to Md. Code Ann., State Gov’t (SG) § 10-502.5(c)(2), this response is being filed in answer to the March 14, 2014 complaint of Craig O’Donnell and the Kent County News (collectively Complainant).

1. INTRODUCTION

The Maryland Health Benefit Exchange (MHBE) is one of the agencies with substantial responsibility for implementing the Affordable Care Act in Maryland. MHBE was created by statute in 2011 as a unit of State government, and its Board of Trustees is empowered to carry out functions authorized by the Affordable Care Act and consistent with the purposes of the MHBE. Insur. Article, §§ 31-102, 31-106. These purposes include reducing the number of uninsured people in Maryland, and facilitating the purchase and sale of qualified health plans by providing a transparent marketplace for such plans. Since its creation, MHBE has established a record of meaningful public engagement. For example, the Board has created nine public advisory committees, which have held more than 90 open meetings. More than 100 Marylanders have served on these committees, and many recommendations put forward by these committees have been adopted into policy. The advisory committees include the Implementation Advisory Committee, the Navigator Committee, the Plan Management Committee, the Continuity of Care Committee, the Producer Advisory Committee, and the Web-based Entities Advisory Committee. In addition, MHBE has held more than ten public comment periods on key policies and regulations, has hosted audiences between 50 and 100 people at each regularly scheduled board meeting, developed a public website with key information about MHBE at http://www.marylandhbe.com, and adopted Procurement Policies and Procedures on June 27, 2011, with the express purpose of establishing an open and transparent procurement process that would promote public confidence in MHBE procurements. Procurement_Policies.pdf.

The Board has met frequently throughout its existence. Since it first met in June 2011, the Board has established and governed a new State agency while making numerous significant decisions related to the implementation of health care reform in Maryland. The Board has met with even greater frequency since October 2013, when, because of problems with the launch and initial operation of Maryland Health Connection, MHBE’s web-based system to facilitate enrollment in health plans, the Board has had to make numerous decisions concerning (a) the further development of Maryland Health Connection, (b) MHBE’s relationship with the contractors whom it had engaged to build Maryland Health Connection, including, ultimately, the termination of its relationship with its prime IT contractor, and (c) efforts to address the consequences of the poor performance of Maryland Health Connection. The Board has frequently sought advice from legal counsel in making many of its decisions since October 1, 2013, both because of a general need, when changing approaches, to evaluate compliance with federal and State law, and because of the potential impact of these decisions on legal claims that MHBE may have against certain contractors or that may be brought against it.

2. RESPONSE TO SPECIFIC ALLEGATIONS

Complainant alleges that (a) the Board failed to timely approve minutes in 2014; (b) the Board failed to comply with the Open Meetings Act in various respects when it met on three occasions in closed session (December 6, 2013, February 23, 2014, and March 7, 2014); and (c) minutes for several meetings in 2012 and 2013 are “missing.” These three sets of allegations are addressed below. Failure to timely approve minutes in 2014 Complainant asserts that as of March 13, 2014, no minutes from meetings held in 2014 have been approved or published. This is incorrect. Through April 1, the Board had met nine times in 2014, only three of which were regularly scheduled meetings, i.e., the meetings on January 27, February 18, and March 18. Five other meetings were convened in open session only for the purpose of holding a vote to go into closed session. April 1 was a specially scheduled meeting that began and ended in an open meeting, lasted about two and a half hours, and included a closed session of about one hour. As the following chronology shows, the Board has, at most of its regularly scheduled meetings, approved minutes from the prior regularly scheduled Board meeting. All minutes from these open meetings are now available on the new minutes section of the MHBE website, http://marylandhbe.com/board-minutes/. At the regular Board meeting on February 18, the Board approved the minutes of the meeting held on January 27. (Exh. 1, February 18, 2014 Board Meeting Minutes, 2-18-2014-Board-Meeting-Minutes.pdf). At the regular Board meeting on March 18, the Board approved the minutes from meetings held on February 18 and February 23. (Exh. 2, March 18, 2014 Board Meeting Minutes, 3-18-14-Board-Meeting-Minutes.pdf). On April 1, the

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Board approved closed session minutes for January 4, January 27, January 31, February 14, February 23, March 7 and March 18 as an administrative function before it returned to open session.1 (Exh. 3, April 1, 2014 sealed confidential Minutes of Closed Session, being provided exclusively to the Compliance Board pursuant to SG § 10-502.5(c)(2)). At the regular Board Meeting held April 15,2 minutes for closed sessions held on February 18, March 18 and April 1 were approved, as were minutes for meetings on March 18 and April 1. All minutes from open meetings through April 1, 2014 are now available on the MHBE website; the minutes for April 15, 2014 will be posted as soon as they are approved by the Board. The Open Meetings Act requires that minutes be prepared as soon as practicable after a public body meets. SG § 10-509(b). Excluding those meetings that were convened solely for the purpose of going into a closed session, the Board has complied with the Act by preparing and approving minutes at the first real opportunity to do so, the next regularly scheduled meeting. Complainant states that the minutes of certain 2014 meetings had not been published online or were not immediately sent to him upon his request. The Open Meetings Act does not, however, require an agency to publish its minutes online, as this Board has recognized. See 6 OMCB 203, 205 (2009). Furthermore, the Open Meetings Act does not require “publication” of minutes.

The public’s right to review documents that a public body is required to maintain under the Act derives from the Open Meetings Act itself. However, with the exception of copies of closing statements requested during the course of a meeting - - a document that generally consists of one or two pages - - we have never held that the Open Meetings Act provides a right to demand copies of such documents, either in paper or electronic form. The Open Meetings Act simply does not address an entitlement to copies. The provision of copies of these public records is governed by the Public Information Act.[3]

7 OMCB 30, 34 (2010). Accordingly, these allegations do not amount to a violation of the Open Meetings Act. MHBE has nonetheless posted the documents related to minutes and closing statements on its website, including those related to all of the meetings identified by the Complainant.

1The performance of this administrative function will be reflected in the April 15, 2014. 2 The April 15, 2014 minutes have not yet been approved by the Board. 3 Complainant has made requests for closed session statements, which the MHBE has responded to pursuant to the Public Information Act, providing responsive records to the extent they are in the custody of the MHBE and are not subject to privilege.

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Allegations regarding specific meetings December 6, 2013 Meeting Complainant asserts that the Board failed to notify the public of this meeting, failed to properly close the meeting, failed to provide public access to the meeting, failed to prepare and publish minutes, failed to summarize the closed session in the next open meeting, failed to complete a closing statement and failed to make a closing statement available. The exigent circumstances of the meeting on December 6, as discussed below, are critical to understanding why MHBE was unable to provide notice or public access to the vote to close the meeting.

On the evening of Friday, December 6, 2013, MHBE’s Executive Director, Rebecca Pearce, unexpectedly submitted an offer of resignation, sending an email to the Board at 6:20 p.m. By email sent at 6:30 p.m., the Chair of the Board convened an emergency telephone meeting. The meeting took place at 7:00 p.m. and all substantive business was conducted in closed session. Due to the unanticipated nature of this event, and its occurrence after business hours, no notice of the meeting was posted on the website,4 and no public dial-in number was posted. The conference line was only open to Board members and legal counsel. The Board could not delay its consideration of Ms. Pearce’s offer of resignation or the other key personnel decisions that would need to be made in connection with a leadership transition. On December 6, Maryland Health Connection was not functioning well; MHBE’s IT contractors had committed to making major fixes to the website by January 1; insurance coverage under the ACA was going to be effective for the first time on January 1; and key MHBE staff were working every day – including weekends – to address these challenges. To make sure that this critical work would continue, it was necessary for the Board to make an immediate decision about the day-to-day leadership of the organization. The Board issued a public statement immediately after the meeting stating what had transpired during the closed session: the Board had accepted the resignation of the Executive Director. The Board’s action was widely reported in the news media.

The Board did, however, fail to include the closed meeting statement for the December 6 meeting in the minutes of the next open meeting. And while the Board understands that issuance of a public statement concerning a closed session is not a substitute for compliance with the Act, there was plainly no intent to conceal the occurrence of the meeting or the action that the Board took. The Board had immediately disclosed to the public that the meeting occurred and the action that it had taken. In addition to the closed meeting

4Complainant also contends that MHBE’s failure to give notice was a violation of its By-Laws. Because this is not an alleged violation of the Open Meetings Act, we have not addressed this allegation in this response. See 4 OMCB 51, 51 n. 1 (2004) (“[t]he Open Meetings Compliance Board, however, only has jurisdiction to issue opinions about alleged violations of the Open Meetings Act”).

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statement (Exh. 4, December 6, 2013 Statement for Closing a Meeting, 12-6-13-Closed-Session-Statement.pdf) MHBE has now posted to its website a summary of the meeting, Summaryclosedsessions2013.pdf.

February 23, 2014 Meeting Complainant contends that the Board failed to give proper notice of its February 23, 2014 meeting, failed to prepare and make available a closing statement concerning that meeting, failed to prepare and publish minutes, and violated the openness provision of the Open Meetings Act. These contentions are incorrect. Complainant characterizes the Board’s actions as a “secret meeting” on a Sunday night. The meeting was not secret. Notice was posted on MHBE’s website on February 22, 2014, at 5:32 p.m., more than 24 hours prior to the meeting. A call-in number for the public to use was posted. Notice was posted as soon as was practicable, after the Board determined the date, time and place of the February 23 meeting. The subject of the meeting was the termination of MHBE’s relationship with Noridian, its prime IT contractor, and the expansion of its relationship with QSSI/Optum to perform many of the functions that Noridian had been performing. The timing of the meeting was driven by the progress of negotiations between MHBE and Noridian concerning Noridian’s departure from the project. Terms for the Board’s consideration were identified by the parties very late on the night of Friday, February 21. As in December 2013, there was a critical need to ensure continued progress on the Maryland Health Connection project. Open enrollment under the Affordable Care Act would end on March 31, and it was critical that improvements to the site continue to be made, and that problems continue to be addressed. Any delay beyond the weekend in considering Noridian’s departure would have, at that point, brought most of the work on the project to a standstill. Under the circumstances, 24 hours was reasonable advance notice. As explained in the Open Meetings Act (“OMA”) Manual (7th ed., Oct. 2010):

[t]he Act does not mandate any particular period of advance notice. Undoubtedly, the General Assembly recognized that sometimes meetings have to be held on short notice, and the Compliance Board has ruled that, absent evidence that a public body scheduled a meeting primarily to foil the public’s right to attend and observe, the Compliance Board ordinarily will accept the determination ... that a meeting is needed at a particular time. The rule of thumb, given the policies of the Act, is that notice of a future meeting should be given as soon as is practicable after the body has fixed the date, time, and place of its next meeting.

OMA Manual at 3-3 (internal citation and quotation marks omitted). By posting notice of the meeting as soon as the need for the meeting was recognized, and as soon as the meeting was scheduled, MHBE complied with these requirements.

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All other procedural requirements for going into closed session were followed. The meeting was convened in open session and a vote was taken to go into closed session. A closed session statement was prepared, and it, along with the minutes from the open session, are available on MHBE’s website. (Exh. 5, February 23, 2014 Statement for Closing a Meeting,2-23-2014-Closed-Session-Statement.pdf; and Exh. 6, February 23, 2014 Board Meeting Minutes, 2-23-2014-Board-Meeting-Minutes.pdf). The Statement for Closing a Meeting reflects that the purpose of the closed session was to discuss termination of MHBE’s contract with its prime IT contractor. Minutes of the meeting were prepared, were approved at the next regular open meeting on March 18, 2014, and have been posted on the website. The Board complied with the Act’s procedural requirements in all respects. Complainant correctly points out that he received two closed session statements; however, they were simply two versions of the same document, one typed and one written in, as Complainant describes, “scribbles.” The hand-written document was typed up so as to be legible for its readers, and for posting.

Complainant also contends that the subjects discussed at the February 23 meetings were not proper subjects for a closed session. This is incorrect. At the meeting, the Board decided whether to approve the terms on which Noridian would depart from the Maryland Health Connection project and whether to modify MHBE’s contract with QSSI/Optum, and the Board adopted a public statement concerning the end of Noridian’s role and the transition to QSSI/Optum. These are quintessentially matters for closed session. All of the decisions made by the Board on February 23 may have a direct bearing on MHBE’s potential claims against Noridian, and advice of counsel was the focus of discussion. These were not ordinary decisions about the cancellation of a contract, in other words. They were decisions about how to preserve legal claims against a contractor that had failed to perform. These matters were legitimately authorized exceptions from the openness requirement of SG § 10-508, consistent with the Board’s previous ruling in 6 OMCB 127 (2009).

The County Commissioners were clearly entitled under the Act to meet with their legal counsel in closed session to seek advice on the proper interpretation of the agreement or to discuss an opinion counsel had issued in connection with the agreement. The fact that the results might have policy implications does not alter this right.

Id. at 134. March 7, 2014 Meeting

Complainant challenges the basis for the Board going into closed session on March 7 and alleges that SG § 10-508(a)(14) did not apply to the discussion listed in the closing statement. As set out in the closed session statement, the Board voted to go into closed session to discuss a “contract modification for hosting” and for “legal advice relating to Noridian departure.”

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At the March 7 meeting, the Board discussed arrangements for hosting Maryland Health Connection (the one category of work in which Noridian retained a role after February 24) and the possibility of QSSI/Optum taking over that work through a contract modification. As on February 23, the Board’s decisions necessarily included consideration of the impact the decisions may have on future litigation, and obtaining legal advice was an integral part of making these decisions. As the Compliance Board has recognized, it may be difficult, in describing a procurement-related subject in a closed session statement, to explain precisely the subject to be discussed without putting a future competitive procurement at risk. 8 OMCB 8, 14-15 (2012). Here, the Board was considering modifying MHBE’s existing contract with QSSI/Optum, but the Board also considered it necessary to preserve the ability to solicit proposals from other entities. Disclosing additional information might have revealed information that had the potential to adversely impact a future procurement for hosting, if that option were pursued. Thus, the March 7 meeting was properly closed both to obtain advice of counsel related to potential future litigation and to preserve MHBE’s ability to undertake, in the future, a competitive procurement for hosting services. Missing Minutes for 2012 and 2013 Complainant asserts that minutes and closing statements for certain meetings in 2012 and 2013 are missing. Complainant’s statements about the absence of minutes reflecting discussion of certain contracts do not appear to allege a violation of the Open Meetings Act. Of note, minutes for these meetings, and summaries of the closed sessions, are now available online for the public on the website’s new Board Minutes section. Specifically, Complainant asserts that “the Noridian contract was apparently approved in February 2012. There were two meetings then and two in September 2012. The MHBE has no statements for closed sessions Feb. 12 and 25, Sept. 11 or Sept. 25 and minutes for only three of the four.” Complaint, p. 11. The Board met in open session on February 14 and 29, 2012. Minutes for February 14 and February 29, 2012 are posted on the website. (Exh. 7, February 14, 2012 Board Meeting Minutes, 2-14-2012-Board-Meeting-Minutes.pdf; and Exh. 8, February 29, 2012 Board Meeting Minutes,2-29-12-Board-Meeting-Minutes.pdf). In September 2012, the Board met on two dates – September 11 and 25. Minutes for both meetings are posted on the website. (Exh. 9, September 11, 2012 Board Meeting Minutes, 9-11-12-Board-Meeting-Minutes.pdf; and Exh. 10, September 25, 2012 Board Meeting Minutes, 9-25-12-Board-Meeting-Minutes.pdf). The Board does not have closed session statements for meetings in 2012. To the extent that such statements were prepared, they have not been retained. This is not a violation of the Open Meetings Act. See SG § 10-508(d)(5).Summary information regarding the 2012 closed sessions is available online at Summaryclosedsessions2012.pdf.

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Complainant asserts that minutes from December 12, 15 and 17 of 2013 are inadequate. MHBE disagrees with this assessment. It has posted information on each of these meetings to its website, in the new special section devoted to minutes.

3. ADDITIONAL STEPS TO IMPROVE TRANSPARENCY

Since receiving the complaint, the Board has taken the opportunity to review its compliance with the Open Meetings Act and the transparency of the Board process. Three areas were identified as in need of improvement. First, it was noted that it could be easier to find the minutes online. The Board therefore directed that a new section of the website be established specifically for minutes. This is available at: http://marylandhbe.com/board-minutes/. This tab can be found at the top of the home page. All available minutes are now posted to this site. Second, from 2011 through 2013, the Board did not regularly post closing statements for closed sessions. Rather, the Board often included an explanation of the closing in the open meeting minutes. Beginning in 2014, the MHBE began posting its closing statements, and all 2014 closing statements are now online in the new section of the website devoted to Board Minutes. Third, the Board did not regularly post a summary of the actions taken in closed session. Often, these actions were announced in open meetings and recorded in the open meeting minutes; however, there was not a consistent process for doing so. The Board has fixed this process moving forward in 2014, as the summary of each closed session is now included at the bottom of each closed session statement and approved by the Board at its next regularly scheduled meeting. These are all online for 2014. In addition to these steps moving forward, the Board went back and posted a summary of every closed session from the creation of MHBE in 2011 through 2013 to the new Board Minutes page on its website. These summaries include the reason for closing the meeting and the key actions taken. (Exh. 11, 2011 Summary of Closed Sessions, Summaryclosedsessions2011.pdf; Exh. 12, 2012 Summary of Closed Sessions, Summaryclosedsessions2012.pdf; and Exh. 13, 2013 Summary of Closed Sessions, Summaryclosedsessions2013.pdf). With respect to closed sessions of Board meetings, throughout its existence, the Board has relied on advice of counsel from the Office of the Attorney General on whether it is permissible to discuss topics in closed session. See 6 OMCB 127, 130 (2009). The Board has also relied on the advice of counsel with respect to compliance with the Open Meetings Act. Finally, both the Chair of the Board of Trustees, Joshua Sharfstein, M.D., and one of its members, Jennifer Goldberg, have completed the Open Meetings Act training. (Exh. 14,

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certificates of completion). Individuals who are charged with taking minutes of the meetings and drafting formal minutes are going to take the online training as well.5 Thank you for the opportunity to respond to this matter. Since its first meeting in June 2011, transparency in governance has been a primary consideration and goal of the Board and the agency. The Board appreciates the importance of complying with the requirements of the law, supports the purpose of the Open Meetings Act, and welcomes any additional suggestions that the Compliance Board may have to improve its compliance with the Act. Respectfully submitted,

Joshua M. Sharfstein, Chair Board of Trustees Maryland Health Benefit Exchange

L. Kristine Hoffman Assistant Attorney General cc: Craig O’Donnell, Kent County News

5 The Hilltop Institute at the University of Maryland, Baltimore County, pursuant to an MOU with MHBE, provides administrative support to the Board, including drafting minutes of open meetings. Hilltop has provided this service since February 2012.

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