The judge ruled Oct. 27 that Vermont Information Technology Leaders, or VITL, is functionally a public agency and must provide documents upon request.
The Legislature passed a law in 2005 to create VITL to coordinate electronic medical records across the state. Vermont funds the organization largely using state and federal Medicaid money, and the Green Mountain Care Board now regulates VITL.
Judge Mary Miles Teachout sided with Steve Whitaker, a telecommunications advocate who sued for records. Whitaker told the judge he first requested records from VITL in November 2015 and took the case to court after VITL said it was a private entity that didn’t need to follow the open records law.
“VITL is the functional equivalent of a public agency for purposes of Vermont’s Public Records Act,” Teachout wrote. She then referenced a series of laws passed between 2005 and 2015 that controlled different aspects of what VITL does.
“VITL is and always has been nearly exclusively funded by or through the state,” Teachout wrote. “The Legislature has always controlled substantial aspects of what VITL does, the composition of its board, some of its internal policies, how it interfaces with the state, and how the state will interface with it.”
“VITL was not created exclusively by the state, but the appearance is that it likely never would have been created without the state’s involvement, and continuing state involvement appears to be vital to its ongoing existence and functioning,” Teachout wrote.
Specifically, Whitaker requested salaries of VITL executives, a copy of a contract with a subcontractor called Medicity, documents related to who owns the data VITL uses, and contingency plans for what would happen if VITL had to shut down.
While Whitaker initially represented himself, he later hired Anthony Iarrapino, a local attorney, to develop the legal strategy and file the briefs in the case.
Whitaker declined to comment. He pointed VTDigger to oral arguments from Oct. 18.
“We’re in a brave new world of health care reform, where governments are involved in health care reform like never before, with billions of dollars in public funds being invested nationwide in the effort,” Whitaker said.
“This effort sometimes involves outsourced services, in effect contracting for government services where the government lacks the expertise or capacity,” he said. “Vermont Health Connect is one example, which I’m sure you’ve heard of. VITL, or Vermont Information Technology Leaders, is another.”
Robert DiPalma from the law firm Paul Frank and Collins represented VITL in the case. He did not immediately return a voicemail seeking comment Thursday.
In a document filed in May in response to Whitaker’s lawsuit, DiPalma argued that VITL was not a public agency because “health care reform is not solely a government function” but “a collaborative effort between numerous private and public stakeholders.”
DiPalma wrote: “While some of VITL’s functions undoubtedly involve collaboration with government and providing input and advice to government planning processes relating to health care technology, VITL’s performance of these acts … (does) not amount to the performance of government functions.”
The judge said she would hold a status conference soon to determine what will happen next.