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Complete Colorado sends in the lawyers over withheld emails in open records request

Editors Note: This story has been changed to reflect an affidavit for index that was made accessible after this story published.

DENVER — A refusal by the Colorado Department of Health Care Policy and Financing (HCPF) to release more than 1000 documents as part of an open records request has led Complete Colorado to retain legal counsel to secure the full breadth of the request.

“HCPF’s withholding of this large number of documents flies the face of the intent of the Colorado Open Records Act (CORA) and the public’s need for transparency,” said attorney John Zakhem, with the Denver-based firm Jackson Kelly. “It’s our client’s intention to pursue all legal remedies to ensure that full disclosure is made if the agency continues to refuse to be transparent.”

Jackson Kelly is well known for its practice in government relations and open records laws.

Among the records HCPF did release were emails that showed coordination between the department and progressive activists, who in turn have connections to legislators carrying bills this session that could change the way health care works in Colorado.

The records request is part of an investigation that Complete Colorado began in March into three bills that appear to flow out of of previous claims by Governor Polis and HCPF that hospitals are making record profits, retaining record reserves, and spending less money to benefit the communities in which they operate.

HCPF pushed out a report in January that “supported” their accusations. However, hospital organizations began pushing back saying the information was outdated and inaccurate.

Just days after the HCPF reports were released, emails show HCPF sending links of the reports to former Rep. Daneya Esgar calling them “three legislatively required hospital transparency reports that were delivered to the General Assembly on Jan. 17.” The reports were intended to be the basis for three bills that were introduced in the Colorado House of Representatives in late February and March.

Hospitals say these bills would severely cripple their ability to do business, and in March, Complete Colorado filed open records requests on HCPF asking for emails or other correspondence to or from several of its employees in relation to the three hospital-related bills.

The records request

In all, HCPF charged Complete Colorado $2,500 to release 318 emails, while refusing to release well over 1000 more, claiming they are “work product.”

Work product is defined in Colorado law as advisory or deliberative materials assembled for the benefit of elected officials to help them reach a decision.

According to the Colorado Freedom of Information Coalition website, work product includes “notes and memos on background information as well as preliminary drafts of documents that express a decision by an elected official. Elected officials may release, or authorize the release of, any work product prepared for them.”

Kathy Snow, the custodian of the documents said “Disclosure of any pre-decisional draft documents at this time would endanger the frank and honest discussion and exchange of ideas within the government.”

In an affidavit for index, Snow wrote that the more than 1,000 emails withheld were done so for both attorney-client privilege and deliberative process privilege.

“Specifically, the material is so candid or personal that public disclosure is likely to stifle honest and frank discussion within the government,” Snow wrote. “privilege has not been waived, disclosure would cause substantial injury to the public interest, and each document or protion of a codument contains material such as comments, options, or debate by staff that ultimately informed the decision at hand.”

She also supplied an affidavit for a separate, previous request where she released just 15 emails, claiming all the others are part of three separate strings of emails.

According to that log, one email string begins in November of 2022 from “Isabel Cruz with the Colorado Consumer Health Initiative to HCPF staff,” one begins in February of 2023 from “Rebecca Parrott the special financing division deputy director to HCPF staff and others, including elected officials,” and one also begins in February of 2023 from HCPF director “Kim Bimestefer to department staff.”

Both affidavits also claimed release of the documents would cause public injury.

“The frank exchange of ideas and opinions as set out in these documents, is critical to the government’s decision-making process,” Snow said. “And public disclosure of these records would discourage such discussion in the future and may cause substantial injury to the public interest.”

What we found so far

Complete Colorado previously reported on the connection between HCPF, activists and legislators that were exposed in the emails that were released.

Also among those emails was a coordinated effort between Bimestefer and her department to coach or give talking instructions to outside organizations in support of HCPF’s reports.

On Jan. 31 (a Tuesday) at 3:30 p.m., Denver Business Journal reporter Analisa Romano sent an email to Robert Smith, the executive director of Colorado Business Group on Health (CBGH) requesting an interview.

“Wondering if you might be up to discuss the recent HCPF reports on hospital profit margins,” Romano wrote. “I am doing a piece on the discrepancy between the state’s reports and what hospitals say are more accurate reflections on their profits. I know that your organization is more focused on how the structure of the market is causing the cost of healthcare to rise — but curious of any other thoughts or how this affects what you are working on.”

CBGH’s website is vague in what it’s role in health care is, saying only that it’s “a purchaser-led, multi-stakeholder non-profit coalition committed to collaboratively improving the health care value-proposition for all Coloradans and their communities.”

The next morning at 7:57 a.m. Smith responded to Romano with some initial thoughts that didn’t reflect the reports as requested, as well as:

“Today’s not the best day, but I could talk as I’m driving about 1 p.m. Otherwise tomorrow would work …”.

However, emails show Smith did not plan to give Romano his independent thoughts on the HCPF report were or how it affected what he was working on. In fact, according to emails, Smith had not even read the report he was about to comment on.

So, just minutes later at 8:02 a.m. Smith forwarded Romano’s email to Bimestefer:

“As you’ll see, this reporter wants to speak with me about your recent report,” Smith wrote. “With whom might I speak at your place just to make sure I’m prepared?”

And just moments later at 8:09 a.m. Bimestefer sent an email to an undisclosed list of recipients requesting “help” to prep “Bob” for the interview.

“Hi team,” Bimestefer wrote. “Kindly see below. Who can help Bob prep for this interview this morning with the press on our reports.”

At 8:41 a.m. that morning Nancy Dolson, special financing division director for HCPF, responded that Marc Williams, public relations director for HCPF, could chat with Smith later that morning.

They eventually settled on 9 a.m. the next day for the briefing, after Smith also asked to see a copy of the report as he “wanted to make certain” he had seen it.

“You bet,” Dolson responded to the request with links to all HCPF’s reports. “We discuss the profits most extensively (here). You’ll want to see the executive summary (here), too … finally, we pulled the key profit info from the community benefit report into our press release (here).”

Romano never did the story.

The bills in question

The first is House Bill 1215 which would put limits on what hospitals could charge for facility fees. It is being sponsored in the House by Democrats Emily Sirota and Andrew Boesnecker and in the Senate by Democrats Kyle Mullica and Lisa Cutter.

It was heard in the Senate Health & Human Services Committee on April 27, and was heavily amended to include:

  • Changes that previously prohibited facility fees on numerous services, was amended to prohibit only on preventative health care services that are not covered by insurance.
  • Removal of a data collection addition that would have created an advisory committee to oversee an all-payer health claims database and replaced with the commissioner authorized to collect information from any carrier offering a health benefit plan.
  • Replaced the data collection piece with a study committee consisting of a seven-member, governor-appointed, steering committee to research and report on the impact of outpatient facility fees.

The bill was scheduled for appropriations May 2 and then on to the Senate floor, and if passed will have to go back to the House for approval. As the session ends on May 8, it is unclear if the bill will make it through the process in time.

Another bill, House Bill 1243 concerns changes to what is known as the hospital community benefit by imposing requirements that increase the amount of net revenue spent by hospitals on community benefits. It is being sponsored in the House by Democrat Judy Amabile and in the Senate by Democrat Dominick Moreno.

It last passed the Senate on May 1 but was also amended and must go back to the House for approval. It was scheduled for discussion on the House Floor for May 2.

The final bill, House Bill 1226, may be the most telling in so much as who is behind all the proposed changes that could push Colorado health care one step closer to a government managed system. The bill, which concerns hospital transparency and reporting requirements, opens up the finances of hospitals to state officials. It is being sponsored in the House by Democrat Chris deGruy Kennedy and Republican Matt Soper and in the Senate by Democrat Dylan Roberts and Republican Perry Will. It has passed the House and is assigned to the Senate Health & Human Services Committee and is scheduled to be heard upon adjournment on May 3.

The “pre-disclosure draft” reasoning behind HCPF’s withholding of emails signals more changes to the way health care is handled in Colorado are likely to come in the next session while Democrats hold an unprecedented majority in the legislature.

Complete Colorado believes that many of the documents do not meet the definition of work product and has taken the necessary steps to notify the state of its intention to ask a judge to review the emails and release anything that does not fit the definition.

Complete Colorado has also informed HCPF not to destroy any of the documents not released and has filed 45 more CORA requests on all the elected officials who have connections to the three bills in any manner, as well as the Governor’s office.

Complete Colorado is still sifting through all the emails and will continue to report the behind-the-scenes plays by HCPF, activists and the Governor’s office on the bills as they continue to make their way through the legislature in its final days.


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