BOISE — The board overseeing Idaho’s health insurance exchange plans a 3-hour, 40-minute meeting behind a downtown Boise law office’s closed doors where citizens will be barred Thursday — nearly twice as long as a public meeting scheduled later that day.
When the 2013 Legislature approved the exchange in April, it made clear it wanted open meetings. Lawmakers who wrote the statute creating this online insurance marketplace under President Barack Obama’s health care overhaul said “every reasonable effort shall be made to make such meetings televised or streamed.”
With so many Republicans against it — 29 in the Idaho House alone opposed it — making it as transparent as possible would help establish public trust and boost success, went the rationale.
But exchange chairman Stephen Weeg of Pocatello said Thursday’s closed session will allow frank exchanges between board members and private attorneys about protecting the exchange’s intellectual property from those who might exploit it, and to discuss risks facing board members between now and Oct. 1, when the exchange begins enrolling participants.
“We talked to our attorneys about that, and they said we were within the boundaries of the Open Meeting Law to do it this way,” said Weeg, a retired director of a nonprofit community health organization.
Exchange attorney Mike Stoddard from Hawley Troxell in Boise has produced memos detailing issues to be discussed Thursday. These memos, he said, are records exempt from disclosure because they enjoy the protections of attorney-client privilege.
As a consequence, meetings where they’re reviewed can be closed.
“We’ve got memos, quite a few other materials, that walk through the various liabilities and exposures the exchange board members are subject to under federal and state law,” Stoddard said.
Even so, nothing about the memos actually prevents their discussion in a public forum, if the 19-member exchange board chose.
But Weeg says there’s a good reason to shutter the session, especially with a potential threat of lawsuit against the exchange from critics. In addition, every public board meeting since April has been attended by lobbyists for private contractors eager to win a lucrative piece of building and operating Idaho’s exchange. Just the first installment of federal grants for Idaho has totaled $20.6 million.
“I don’t want to talk about risk management or risk exposure when I’ve got people in the audience who may want to figure out how to take advantage of the risks we may be talking about,” Weeg said. “There are times when we need to be reflective, to make sure we’re doing the right things, without having a bull’s eye on our chest.”
According to Idaho’s official Open Meeting Law Manual, distributed by the state attorney general’s office, “closed meetings can lead to distrust of governmental decisions and acts.” That’s a significant consideration with the insurance exchange, in particular, since its creation was branded by many Idaho GOP lawmakers as knuckling under to the federal Affordable Care Act and creeping toward socialized medicine.
Rep. Luke Malek, R-Coeur d’Alene and a lawyer, supported the exchange but said its strict open-meeting provisions were important.
“There was a lot of skepticism about a federal mandate coming into Idaho,” Malek said. “That allows the process to be analyzed by citizens at every stage.”
He didn’t weigh in on Thursday’s meeting, saying he needed to learn more.
Sen. Jim Rice, R-Caldwell, a lawyer and one of three Idaho lawmakers on the exchange board, said he’ll be monitoring Thursday’s session, so board members don’t stray beyond material that otherwise must be handled openly.
“The big thing for me, making sure when we get in there, we stick to only things that are appropriate for an executive session, and when it’s not appropriate, we get out of it,” Rice said.
One thing board members made clear: No decision or vote will be taken in closed session from 11:30 a.m. to 3:10 p.m. By law, those must come afterward, when board members shift locales from the law office to the Idaho Capitol five blocks to the north for the 2-hour public portion of Thursday’s meeting, which begins at 3:30 p.m.
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