Lawmakers got sneak preview of single payer financing plans

Is it legal for the Shumlin administration to keep financing plans for the single payer health care system a secret? Even when those plans have been shared with House legislative leadership?

Those are the questions at the heart of a lawsuit brought by Rep. Cynthia Browning, D-Arlington, against the state of Vermont.

Rep. Cynthia Browning, D-Arlington. File Photo by John Herrick/VTDigger

Rep. Cynthia Browning, D-Arlington. File photo by John Herrick/VTDigger

Gov. Peter Shumlin has used executive privilege, a legal doctrine that protects his decision-making process, to keep the deliberations of the Business Advisory Council on Health Care Reform and the Consumer Advisory Council on Health Care Reform out of the public purview.

Browning believes Shumlin has applied the doctrine too broadly in order to prevent public access to information about his plans for single payer. She said her request does not breach executive privilege. She is asking for work products and presentations from Michael Costa, the deputy director of health care reform; she is not suing for audio tapes of the meetings, or communications from members of the councils to the governor, which are confidential.

“I think that the principle of transparency and accountability and not violating open meetings laws — those principles are subject to interpretation, and so is executive privilege,” Browning said.

One of the documents, a draft presentation, was shared with four lawmakers.
When Costa handed out confidential documents to House Speaker Shap Smith, Reps. Sarah Copeland Hanzas, Mike Fisher and Janet Ancel, he waived the administration’s right to claim executive privilege, according to Browning’s latest filing. That’s because when Costa shared the information with individuals who are not part of the councils or the executive branch, he crossed a line between the branches of government. Executive privilege is “inextricably rooted in separation of powers under the Constitution,” they argue, and sharing the documents with lawmakers “frustrated any claim” that a separation of powers is fundamental to their exercise of executive privilege in this instance.

Browning said the legislative leadership is complicit in withholding information from other lawmakers and the public. “I don’t think it serves the public interest,” she said.

“Some members of the Legislature know more about the financing plan than the rest of us do,” Browning said. “I think that’s interesting in terms of the role of the Legislature, the Democratic caucus and the whole issue of transparency. If you’re going to be a member of the governor’s staff, be a member of the governor’s staff.”

Smith says the Shumlin administration was asking lawmakers for advice. Whether executive privilege applies to that communication, he said is a legal question.

“I think it’s their determination to assert the privilege,” Smith said. “You have to have some expectation of privilege around documents. The scope of that question is a legal one.”

Michael Costa, deputy director of health care reform. File Photo by Hilary Niles/VTDigger.org

Michael Costa, deputy director of health care reform. File photo by Hilary Niles/VTDigger

The legislative branch is not going to rubber stamp the governor’s financing plan, he said. “It’s not a given that the Legislature would adopt what the administration puts forward,” Smith said.

The state moved to dismiss Browning’s case in June. The Vermont Attorney General’s office argued it is necessary to maintain the confidentiality of the documents in order to “preserve candor, openness and creativity in the governor’s deliberative process on the health care financing issue.” Executive privilege, according to the state, extends to “all documents connected to the governor’s deliberations, consultations and receipt of policy advice.”

In the latest round of court machinations last week, Browning’s lawyers, Primmer, Piper, Eggleston and Cramer extracted a list of privileged documents from the Shumlin administration.

The attorneys were not able, however, to obtain a crucial accompanying document that explains why each of the documents are exempt from public disclosure. No reasons are given for invoking executive privilege. Browning’s lawyers say the court should interpret that failure as a demonstration that the state can’t make a specific factual “showing,” and, therefore, can’t presume the documents should be kept confidential.

Browning’s attorneys say the documents are in the public interest and citizens have the right to the “free and open examination” of public records under the Vermont Constitution even when “such examination may cause inconvenience or embarrassment.” The burden of proof is on the administration to demonstrate otherwise, they argue.

Rep. Janet Ancel, D-Calais, who attended the Jan. 30 meeting, said whether the Shumlin administration should continue to keep the plan a secret is a political question.

“I used to work for a governor, they need room and time to develop policies and executive privilege gives them the space to do that, but at some point you say this policy is going to be developed more effectively if it’s more public,” Ancel said. “I don’t know when that is.”

Ancel, who is chair of House Ways and Means, the tax writing committee, says she wants to see the plan “when it’s a good plan,” but we can’t keep the “state in suspense indefinitely.” Employers need to know what the next stage in health care is going to be, she said. In the coming session, she anticipates that the Legislature will make the financing decisions.

In the meantime, she said: “I don’t feel the need to be sitting, watching it be developed. We’ll do better if it is a legislative response to something the governor is ready to put forward and make arguments for.”

Gov. Howard Dean said the courts have upheld the right of executive privilege. The governor needs time to decide what he will put in front of the Legislature. Once the information goes public, Dean said, stories in the press are accepted as gospel, the political grist mill gets into gear and that can make the debate and creation of the plan more difficult.

There needs to be a full debate, Dean said, “But I think the governor gets to choose when that debate happens and has to have ability to make sure it’s well thought out. He’s got to have the ability to do that.”

Members of the business council were asked to keep the conversations with Costa and other members of the administration confidential, and they have stayed mum, as requested by the governor.

One of the members, Gregg Beldock, who owns the Bullrock Corp., says Costa has worked diligently and provided the council with “tremendous perspective.”

“I think the process is a good one, and I think we’ll all be pleased with the outcome,” Beldock said.

Bram Kleppner, the CEO of Danforth Pewter, another member of the council, says the confidentiality creates a smoother process and healthier debate among members of the council. “Is it ultimately better to avoid lots of alarm over nothing and rumors that are untrue?” Kleppner said. “Or is it better to give everyone full access to information and let people sort out what’s going to happen on their own? I don’t know.”

Darcie Johnston, a critic of the Shumlin administration’s plans for single payer, says Browning has provided needed leadership.

“Gov. Shumlin promises a transparent administration but on his plans for single payer health care he has been anything but transparent,” Johnston said. “All Vermonters have the right to know how Governor Shumlin is planning to pay for his single payer health care scheme. Cynthia Browning is a transparency hero.”

The Shumlin administration was to provide the Vermont Legislature with a financing plan for single payer in January 2013 and when officials didn’t deliver, they promised to deliver a plan this year, but soon after the session started, the governor’s office begged off that deadline. The plan is now expected to be made available to the Legislature and the public at large after the November election. The Shumlin administration has said it would implement the plan in 2017.

Editor’s note: This story was updated with quotes from members of the business council and lawmakers at 5:51 a.m. Aug. 4.


Anne Galloway

Comments

  1. Chris Robinson :

    Why do you suppose they are waiting until after the November elections? If the plan is such a great idea I would expect it would be released prior to elections. This doesn’t seem very transparent to me.

  2. Dave Bellini :

    The administration will tie this up in court for years if necessary. It doesn’t help that the Governor is running almost unopposed.

  3. Richard Ratico :

    Dave,

    “It doesn’t help that the Governor is running almost unopposed.”

    Rep. Browning’s lawsuit and that of the republican controlled house against President Obama are typical of the right wing’s failure to offer constructive alternative legislation in response to the pressing issues facing our state and country.

    Frivolous lawsuits and political grandstanding are recognized for what they are, at least in Vermont. Rep. Browning, a democrat in name only, would do well to learn to be a team player and work in a constructive fashion, or switch to the Party of No, who’s obstructionist tactics are the only ones she apparently knows how to use.

    • James Rude :

      You need to get your facts in order. The U.S. House of Representatives has passed 356 bills that are languishing in the Senate.
      Senate Majority Leader Harry Reid has ignored the legislation, even though much of it passed the House with key support from Democrats

      • Richard Ratico :

        James,

        “The U.S. House of Representatives has passed 356 bills that are languishing in the Senate.”

        Didn’t 355 of those attempt to repeal Obamacare?

      • Richard Ratico :

        Who is paying Ms. Browning’s lawyers in the suit?

    • paul lutz :

      I can’t believe you actually wrote those words Richard. Constructive alternate legislation??????

      So the Gov. does not need a plan that works, only those that oppose him???

      Single payer is the dems dream. Obamacare is so bad that the better alternative is to return to the old system.

      • Walter Carpenter :

        “Obamacare is so bad that the better alternative is to return to the old system.”

        Although I am no fan of this law, it does have some good things in it which are far better than the old system. One of them is how it at least begins to end the travesty of health insurance being tied to employment. That in itself is a huge improvement.

    • Robert Hooper :

      One could argue that Rep Browning is not being an obstructionist, but rather following up on the legislative process??

      After all: “The Shumlin administration was to provide the Vermont Legislature with a financing plan for single payer in January 2013 and when officials didn’t deliver, they promised to deliver a plan this year, but soon after the session started, the governor’s office begged off that deadline.”

      Browning did not pass that legislation herself, did she?

      The funding mechanism for single payer, based upon a system that equitably draws from all-earned and unearned (the trust fund and wall street crowd) income participants, could be the single most powerful inducement for the public to get behind the issue. Absent that information, it is no wonder the representatives of the people are getting irritated. Frankly, with an election effectively uncontested, I am a little amazed that more representatives from the people’s house are not asking for more clarity-I am sure they will be challenged in their OWN campaigns as to why/how they have allowed the administration so much space.

      Republicans would be offering us nothing. Democrats are offering us a progressive approach to a problem that has been haunting our citizens for decades. Having it shrouded in mystery isn’t a plus.

      • Ethan Rogers :

        The public likely to ‘get behind the issue’ would naturally be those with something to gain for little or nothing above what they already pay. What’s to keep the others who’ll be hit hardest here?

      • Walter Carpenter :

        “Republicans would be offering us nothing. Democrats are offering us a progressive approach to a problem that has been haunting our citizens for decades. ”

        This is true.

    • Glenn Thompson :

      Richard Ratico,

      “Rep. Browning, a democrat in name only, would do well to learn to be a team player…..

      I had no idea when we elect reps to public office the main requirement was to follow the leadership like a bunch of Lemmings?

      I had no idea the main purpose of getting elected to public office was NOT to represent the people who elected them but represent the party to whom they belong?

      Again….Kudos to Rep. Browning for her independent thinking and looking out for the people she represents and not the party she belongs to.

    • Jamie Carter :

      “Rep. Browning’s lawsuit and that of the republican controlled house against President Obama are typical of the right wing’s failure to offer constructive alternative legislation”

      Or maybe it’s just a response by the executive branches overstepping their boundaries, and blatantly ignoring the laws of the state/country.

      “Frivolous lawsuits and political grandstanding are recognized for what they are, at least in Vermont.”

      Apparently they aren’t, because we have people arguing that Shumlin’s deliberate secrecy and willful disregard for the law being confused as something that is ok. Clearly the liberal kool-aid is strong in the sate.

    • Keith Stern :

      Sure and let the country and the state become poorer and poorer. I bet our children appreciate your logic.

  4. Carl Marcinkowski :

    Two party politics at it’s best, serving the people. No visible opponent to the governor’s re-election in spite of this administration recent failures, arrogance and nondisclosure with the collaboration of the majority party in the statehouse. What the heck? Let’s see some real political opposition to this nonsense. Let’s hear some debate of the facts. But we need the candidates to force any debate.

  5. paul lutz :

    What is to hide?????

    Shumlin and the dems are the most dishonest people this state has ever seen.

  6. Kathy Callaghan :

    “Rep. Browning, a democrat in name only, would do well to learn to be a team player and work in a constructive fashion, or switch to the Party of No…”

    Why should Rep. Browning not do what every other responsible legislator should have done – question the administration’s repeated false assurances, gaffes, promises, and obfuscation regarding the “progress” of Vermont Health Connect, and their failure to produce a financing plan for single payer as required by law, not once but twice?

    I don’t know about others, but I value a legislator who demonstrates honesty and integrity over party politics. No one wants to be represented by a political puppet who turns a blind eye to the obvious and goes along to get along. Sadly, that appears to be the majority of the legislature we have now. What has happened to guts and integrity?

    More legislators should have done what Rep. Browning is doing now. The evidence of ineptitude was overwhelming, even then. Perhaps if they had, they would not now be wringing their hands and lamenting the administration’s handling of Vermont Health Connect, and vowing to “do something” about it in the upcoming session. The time to do something about it was during the last session.

    Single payer advocates are now realizing just how much Vermont Health Connect has dimmed the public’s enthusiasm for single payer. For that reason alone, they should have thought ahead and taken swift action on Vermont Health Connect so it wouldn’t come back to bite them in the next session.

    My worse fear is that no one really understands what is going on well enough to do anything about it. Meanwhile, Vermonters continue to suffer with no coverage, premiums that are too high or too low, and worse of all, the upcoming tax season when they may be faced with a tax hit based on the amount of their subsidy.

    None of this is anything that Vermonters had any control over. The exchange (Vermont Health Connect) was set up by law to be an optional competitive open marketplace for purchasing health plans. One could shop there, or continue to buy a plan through insurers. That is how it works in every other state except Vermont, where small businesses of under 50 employees are mandated by Vermont law to purchase only through Vermont Health Connect, and insurers are forbidden to sell policies outside the exchange.

    One quick and easy fix to ease the burden on Vermonters is to rescind this law during the first week in January to give insurers an opportunity to see their plans directly to consumers, as the Affordable Care act calls for.

    Beyond that, the administration owes Vermonters an apology, probably weekly, and should finally hire (not appoint) the health plan and IT expertise it needs to make this damn thing work. Do a national search – and do it now!

    • Walter Carpenter :

      “Single payer advocates are now realizing just how much Vermont Health Connect has dimmed the public’s enthusiasm for single payer. ”

      Actually, it is less this and more that we knew this would be all the more reason for single-payer. Of course, no one could have predicted what has happened so far in the exchanges, but, once again, they provide more reasons for single-payer. While I think that the Shumlin administration has tried to do the best it could with them (within the law’s boundaries, of course) I have also heard the opposite on the streets, that people want single-payer after this experience.

  7. Cynthia Browning :

    For Mr. Ratico, I have offered a moderate alternative approach to health reform that I believe could achieve the goals for Vermonters that we all share. Such an approach would involve greater assistance to Vermonters who struggle with costs of care and insurance, support for health care providers, and better coordination of care for Vermonters with multiple serious diseases. It would be much simpler and easier than what the Governor seems to be going to propose.

    While I am skeptical that the state financed health insurance is the best way to go, I have not said “NO” — because I have not seen plans to evaluate. Three years after the passage of Act 48, which promised the single payer GMC. To promise benefits without revealing how they will be paid for is a major pitfall of representative government and allows candidates to avoid taking responsibility for what they promise.

    The end doesn’t justify the means: having good intentions should not give single payer supporters license to limit public participation in the development of the financing plans. Act 48 explicitly calls for such participation. When the leadership of my party did something that I think wrong, and working within made no difference, I thought I had an obligation to make an effort to uphold the principles of transparency and accountability in public through the judicial process.

    In fact, I would think that single payer supporters would want the plans to be out in public, debated, vetted, and strengthened. Not to do so does lead to suspicion that politically difficult aspects of the plans make it more convenient to keep them under wraps. If the proposal is so good, can’t Vermonters be trusted to figure that out? How can I be called obstructionist if I am trying to facilitate public debate of serious policy issues in the face of governmental secrecy? Who is obstructing what?

    Rep. Cynthia Browning, Arlington

    • Jonathan Willson :

      Please run for Governor in 2016. Count me as your first volunteer in Addison County.

      • Richard Ratico :

        I agree, Rep. Browning should run….. on the republican ticket of course.

        • Jonathan Willson :

          Either party as far as I’m concerned. Just because she is critical of the current Democratic leadership doesn’t mean she should switch parties.

          It’s nice to have an honest an unique candidate. It’s really sad that Rep. Browning is unique though. Everything she says makes sense and is grounded in fact. That’s a true rarity in politics.

          • rosemarie jackowski :

            Don’t forget. You can always write her in. She doesn’t need a D/R label.

        • Tom Stevens :

          Hey Richard,
          Rep Browning voted in favor of labeling GMO foods, a ban on fracking in VT, renewable energy, troop withdrawal from Iraq in addition to votes that were conservative in nature.
          Rep Browning sounds like a politically balanced politician to me.

    • Moshe Braner :

      As a single-payer supporter, I say, thank you Rep. Browning. We need an open public debate in this state to get it right. And not just about the financing. As much as we’d like to, we cannot, and will not be able to, afford every new medical procedure or $84,000 pill that may be invented and offered by a for-profit industry. That is true whether we have single payer or not. The really difficult conversation about what medical care should be covered is still ahead.

      • Jim Christiansen :

        The “difficult conversation” to empower a government monopoly to decide who is worthy of treatment and who gets sent home to die with the pain pill.

        Stay useful and productive to the State my friends, and exercise your free speech rights with care.

    • Thank Heaven for Independent Leaders like Ms. Browning looking out for Our Common Interests!

      Of course when the figures are finally revealed, we will all be headed for the barn to get our pitchforks for a march to the State House (or more precisely the penthouse of the Pavilion Building next door)

      Time to vote Emperor Shumlin out of office!

      H. Brooke Paige

  8. rosemarie jackowski :

    Doublespeak alert: War is peace. Black is white. “… it is necessary to maintain the confidentiality of the documents in order to preserve … openness …”.

  9. I applaud Rep. Browning for doing what she thinks is right. Putting opinions on Single Payer, VT Health Connect and healthcare reform in general aside, more of our legislators should stick with their convictions and not their party.

    The argument that the the Executive should determine what their plan is, then present it for debate is fine, until you realize that removes Vermonters from the debate.

    An open and accountable government would present the options BEFORE a decision had been made. Ask Vermonters what they think, then come up with a plan that reflects the will of the people.

    The motto of “trust us, we’ll figure it out” is undemocratic. Ask, listen, learn, decide.

  10. Keith Stern :

    $175 million spent to develop the exchange. How many could be helped with Mark Donka’s plan for government provided catastrophic coverage? And no one needs to fall through the cracks with his plan.
    Logic: What a concept.

  11. Walter Carpenter :

    “And no one needs to fall through the cracks with his plan.”

    But what about those who cannot afford the insurance premiums, deductibles, etc for non-catastrophic stuff? Do they fall back on the free clinics?

  12. Carl Werth :

    How do you know even those who cannot afford insurance premiums will not be cared for under Mark Donka’s plan, Walter?

  13. Peter Everett :

    Please Google “Ezekiel Emanual Socialized Healthcare”. He is a main contributor to the ACA. His view is chilling, especially care for newborn and elderly.
    After reading what he thinks these two areas should receive for healthcare, you may not be so quick to want this program.

  14. Judith McLaughlin :

    When I heard the “plan” for funding would be released right after the November elections, that is when I decided to vote out Shumlin, right along with most everyone else I speak with about the issue. If it looks and smells like a scam, it is a scam.

    We have a right to know the potential cost now. Period.

    Rep Browning. Please don’t give up. You are the only one who appears to be still working for the people.

  15. ray giroux :

    YES! Let’s write in “Browning for Governor”!

    I don’t care what Party she hails from, this woman is genuine and much needed in our State.

  16. Keith Stern :

    Walter if you see this, I will explain it one more time: Catastrophic coverage is any and all bills beyond the insurance limit. No one gets hurt by this plan and insurance premiums would be very affordable.

  17. james willey :

    Backed into a corner of the cage put in place by our famous “non-citizen” prez. Now the big noise is about making the best of a bad situation.

    What more could a brainwashed Democrat electorate wish for?

Comments

*

Comment policy Privacy policy
Thanks for reporting an error with the story, "Lawmakers got sneak preview of single payer financing plans"