On May 1, 2014, Complete Colorado filed a Freedom of Information Act request (FOIA) with the U.S. Department of Health and Human Services (HHS). The request asked for emails on specific dates which mentioned either U.S. Senator Michael Bennet, then-U.S. Senator Mark Udall, or mentioned Colorado.
While a first batch of responsive pages was returned after approximately three months, HHS then needed almost 10 months to return the remaining 5 pages. Of those 5 pages, 3 were totally redacted with the small exception of a printed email signature. All of the emails pertain to the “fix” President Barack Obama offered in November of 2013 which allowed the continued sale of health plans which didn’t meet all of the required benefits of the Affordable Care Act (ACA). At the time, the “fix” helped stanch a nationwide wave of health care cancellations. The cancellations were seen as direct evidence countering Obama’s claims similar to, “If you like your current plan, you will be able to keep it. Let me repeat that: If you like your plan, you’ll be able to keep it.”
Again, what makes the emails salient is they had to meet the criteria of mentioning Bennet, Udall, or Colorado. The full set of the final five pages are produced below.
HHS officials cited the “deliberative process privilege” as justification for the redactions. The privilege is intended to encourage the free give and take of ideas in the decision making process. But recently, deliberative process has been mocked as the “withhold it because you want to” exemption.
Also, on May 1, 2014, Complete Colorado filed a similar FOIA request with the Centers for Medicare and Medicaid Services (CMS). Not a single document has been returned thus far, and phone calls and emails to FOIA officers within CMS have been ignored since December of last year.
With regards to the first FOIA request, we queried HHS at various times as to the remarkable amount of time being taken to produce only 5 pages of emails. In May of this year, FOIA Liason Michael Bell told us, “Your case comes up very regularly in our office and we have elevated it to the Assistant Secretary Level.”
The first ObamaCare fix offered in November, 2013, was not mandatory, and those states which ran their own health care exchange had the option to accept or decline the President’s offer. The Colorado Division of Insurance (DOI) did not accept the option.
However, in 2014, the President offered the same fix by allowing the continued sale of non-ACA compliant plans for another two years. The DOI accepted the first year of the potential two year extension. As Complete Colorado reported a few months later, numerous documents suggest the DOI might have broken state law in allowing the sale of non-ACA compliant plans.
The Wall Street Journal speculated that the 2014 offer from President Obama was politically motivated to help reelect Democratic Senators who had voted for the Affordable Care Act, mentioning Mark Udall by name.
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