Immediate distraction: Proprietary information bill mars Ballad Health rollout
Alan Levine, Ballad chairman and CEO. Photo by Scott Robertson
By Scott Robertson
When Ballad Health Chairman and CEO Alan Levine met with The Business Journal in late February, he probably would rather the conversation had centered on plans for a new pediatric trauma center, or a residential addiction treatment facility, or pediatric emergency departments in Kingsport and Bristol. Instead, he opened the conversation with, “So I guess you want to talk about this bill, huh?”
“This bill” is Tennessee Senate Bill 2048, currently under consideration by the Tennessee General Assembly in Nashville, and its State House counterpart. The bill, which has raised eyebrows and ire, limits what information is immediately put into the public record as it is reported to the state’s COPA monitor, in essence removing it from public view before it ever gets there.
The bill does not – as currently written – accurately reflect the system’s goals, Levine said. However, Levine added, there is no ill intent on the part of Ballad or of the legislators who are carrying the bills in the state house and senate.
“Is it possible that the language that was originally submitted was too broad? Yeah. I would say it is possible it was too broad,” Levine told The Business Journal. “And that’s why the (legislative) process is designed the way it is. You have a chance to refine it during the process.”
Senate Bill 2048, which is sponsored by District 3 State Senator Rusty Crowe, removes from the public eye documents the Department of Health had planned to publish regarding Ballad’s compliance with the recently signed Certificate of Public Advantage (COPA). That COPA allowed the merger of Mountain States Health Alliance and Wellmont Health System. Under the COPA, the state is charged with ensuring Ballad meet several commitments to offset potential negative effects of loss of competition between the two former systems.
Under that bill, as written, “Records made or received by an independent firm or individual retained by the state to monitor, review, supervise, or otherwise provide oversight with respect to a cooperative agreement governed by a certificate of public advantage, including, but not limited to, monitoring compliance and evaluating performance,” will be removed from the public record.
For his part, Crowe said he was taken by surprise at the negative reactions to the bill. “I didn’t realize what a firestorm would be set off by this bill that’s really only about keeping the hospital system’s proprietary information out of the hands of competing systems,” Crowe said. “I have been hearing from constituents. I have been hearing from the attorney general. I have been hearing from the Department of Health. I have been hearing from Ballad. As such, I want to make sure that all these entities are working together.”
The Tennessee Department of Health has offered an amendment to the bill, and Ballad, the DoH and the Tennessee Attorney General’s office are in talks now. “That’s the process of legislation,” Levine said. “Everybody has a chance to weigh in on it, and then the legislature can do what it thinks is proper.”
When Mountain States and Wellmont were working with the state to write the COPA, Levine said, legal provisions of investigation kept proprietary information out of the public eye. However, since the state has moved from investigation into regulation, that information is no longer protected. Ballad’s competitors do not have to make public all the information that would be made public by law the moment the COPA monitor receives it from Ballad, Levine said, putting Ballad at a competitive disadvantage.
“There’s some real potential for damage if certain elements of our routine operations were in the hands of our competitors,” Levine said. “Without this bill, if the COPA monitor has access to information, which they do, then by virtue of the fact they have possession of it, it immediately becomes public, that means every one of our competitors can access all of that. You wouldn’t even need to collude to have price fixing.”
Said Crowe, “No other system would have to make public its negotiations with an NCO, or with one doctors’ group or another, or with a payor. If you go into a hospital system office and ask, ‘What’s your physician recruitment plan for the Children’s Hospital?’ they’re not going to tell you.”
But among the items listed to be removed from the public record are documents relating to facility closures or repurposing and deletions of service lines. Both were hot button topics during the COPA process. Regarding those items, Levine said, the question the bill was designed to address is more a matter of timing of the release of information, than completely removing that information from the public record.
“The public does have a right to know what the decision factors were in the state approving us closing a service or repurposing,” Levine said. “The issue for us is a practical one. If we had made a decision that it’s in the interests of our hospital to close or repurpose a service and we have to go to the state and request it, and that becomes public before the state has had an opportunity to consider it and before we have had the opportunity to execute a plan once it’s approved, you can actually undermine that service before the decision has even been made to move forward.” The bill as written, however, does not address any point at which the information should be released to the public.
When the state investigates a complaint alleging Ballad has failed to live up to the terms of the COPA, Levine said, Ballad is asking not that the facts be completely withheld from the public, only that the investigation be allowed to run its course before the results are made public. Again, Levine acknowledged that point is not made in the original bill’s text.
“That’s why this is such a great process,” Levine said. “Because you learn about certain imperfections. Sometimes your intent doesn’t get articulated and that’s the benefit of our democratic process. It’s in the sunshine. Everybody sees the language. People have had the opportunity to say, ‘well, what about that?’ And we have a chance to say, ‘Well, we didn’t intend – if we violate the COPA, and it’s proven that we have violated the COPA and we have exercised our due process and the state has taken action to enforce compliance, we don’t disagree that that should be public. The only thing we say is that if there is information in there that is competitively sensitive, that should be redacted.
“The process is working, and we just have to let the process work,” Levine said. “I think there are really good, level-headed people for the state and amongst our team that are working on that, who are going to try to come up with the right solution that balances the public’s right to know with our need to make sure we can operate these institutions, frankly in the public’s interest.”
Said Crowe, “What I want, and what I have wanted all along, is to make sure that all information that is normally, customarily and appropriately held proprietary continues to be held proprietary, and that what should be in open records will be.
“I would like to have been able to simply write a bill that says, ‘I want what was proprietary before to be now,’ but it’s not that simple,” Crowe said.