April 25, 2014

SENT VIA E-MAIL: opengov@oag.state.md.us

AND FIRST CLASS MAIL

Elizabeth L. Nilson, Esquire, Chairperson
Open Meetings Compliance Board
c/o The Office of the Attorney General
200 Saint Paul Place
Baltimore, Maryland 21202

Dear Chairperson Nilson:

On behalf of the Board of Trustees of the Maryland Health Benefit Exchange (the Board),
and pursuant to Md. Code Ann., State Govt (SG) 10-502.5(c)(2), this response is being
filed in answer to the March 14, 2014 complaint of Craig ODonnell and the Kent County
News (collectively Complainant).

1. INTRODUCTION

The Maryland Health Benefit Exchange (MHBE) is one of the agencies with substantial
responsibility for implementing the Affordable Care Act in Maryland. MHBE was created
by statute in 2011 as a unit of State government, and its Board of Trustees is empowered
to carry out functions authorized by the Affordable Care Act and consistent with the
purposes of the MHBE. Insur. Article, 31-102, 31-106. These purposes include
reducing the number of uninsured people in Maryland, and facilitating the purchase and
sale of qualified health plans by providing a transparent marketplace for such plans.

Since its creation, MHBE has established a record of meaningful public engagement. For
example, the Board has created nine public advisory committees, which have held more
than 90 open meetings. More than 100 Marylanders have served on these committees, and
many recommendations put forward by these committees have been adopted into policy.
The advisory committees include the Implementation Advisory Committee, the Navigator
Committee, the Plan Management Committee, the Continuity of Care Committee, the
Producer Advisory Committee, and the Web-based Entities Advisory Committee.

In addition, MHBE has held more than ten public comment periods on key policies and
regulations, has hosted audiences between 50 and 100 people at each regularly scheduled
board meeting, developed a public website with key information about MHBE at
http://www.marylandhbe.com, and adopted Procurement Policies and Procedures on J une
27, 2011, with the express purpose of establishing an open and transparent procurement
process that would promote public confidence in MHBE procurements.
Procurement_Policies.pdf.



The Board has met frequently throughout its existence. Since it first met in J une 2011, the
Board has established and governed a new State agency while making numerous significant
decisions related to the implementation of health care reform in Maryland. The Board has
met with even greater frequency since October 2013, when, because of problems with the
launch and initial operation of Maryland Health Connection, MHBEs web-based system
to facilitate enrollment in health plans, the Board has had to make numerous decisions
concerning (a) the further development of Maryland Health Connection, (b) MHBEs
relationship with the contractors whom it had engaged to build Maryland Health
Connection, including, ultimately, the termination of its relationship with its prime IT
contractor, and (c) efforts to address the consequences of the poor performance of
Maryland Health Connection. The Board has frequently sought advice from legal counsel
in making many of its decisions since October 1, 2013, both because of a general need,
when changing approaches, to evaluate compliance with federal and State law, and because
of the potential impact of these decisions on legal claims that MHBE may have against
certain contractors or that may be brought against it.


2. RESPONSE TO SPECIFIC ALLEGATIONS

Complainant alleges that (a) the Board failed to timely approve minutes in 2014; (b) the
Board failed to comply with the Open Meetings Act in various respects when it met on
three occasions in closed session (December 6, 2013, February 23, 2014, and March 7,
2014); and (c) minutes for several meetings in 2012 and 2013 are missing. These three
sets of allegations are addressed below.

Failure to timely approve minutes in 2014

Complainant asserts that as of March 13, 2014, no minutes from meetings held in 2014
have been approved or published. This is incorrect.

Through April 1, the Board had met nine times in 2014, only three of which were regularly
scheduled meetings, i.e., the meetings on J anuary 27, February 18, and March 18. Five
other meetings were convened in open session only for the purpose of holding a vote to go
into closed session. April 1 was a specially scheduled meeting that began and ended in an
open meeting, lasted about two and a half hours, and included a closed session of about
one hour. As the following chronology shows, the Board has, at most of its regularly
scheduled meetings, approved minutes from the prior regularly scheduled Board meeting.
All minutes from these open meetings are now available on the new minutes section of the
MHBE website, http://marylandhbe.com/board-minutes/.

At the regular Board meeting on February 18, the Board approved the minutes of the
meeting held on J anuary 27. (Exh. 1, February 18, 2014 Board Meeting Minutes, 2-18-
2014-Board-Meeting-Minutes.pdf). At the regular Board meeting on March 18, the Board
approved the minutes from meetings held on February 18 and February 23. (Exh. 2, March
18, 2014 Board Meeting Minutes, 3-18-14-Board-Meeting-Minutes.pdf). On April 1, the
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Board approved closed session minutes for J anuary 4, J anuary 27, J anuary 31, February
14, February 23, March 7 and March 18 as an administrative function before it returned to
open session.
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(Exh. 3, April 1, 2014 sealed confidential Minutes of Closed Session, being
provided exclusively to the Compliance Board pursuant to SG 10-502.5(c)(2)). At the
regular Board Meeting held April 15,
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minutes for closed sessions held on February 18,
March 18 and April 1 were approved, as were minutes for meetings on March 18 and April
1. All minutes from open meetings through April 1, 2014 are now available on the MHBE
website; the minutes for April 15, 2014 will be posted as soon as they are approved by the
Board.

The Open Meetings Act requires that minutes be prepared as soon as practicable after a
public body meets. SG 10-509(b). Excluding those meetings that were convened solely
for the purpose of going into a closed session, the Board has complied with the Act by
preparing and approving minutes at the first real opportunity to do so, the next regularly
scheduled meeting.

Complainant states that the minutes of certain 2014 meetings had not been published online
or were not immediately sent to him upon his request. The Open Meetings Act does not,
however, require an agency to publish its minutes online, as this Board has recognized.
See 6 OMCB 203, 205 (2009). Furthermore, the Open Meetings Act does not require
publication of minutes.

The publics right to review documents that a public body is required
to maintain under the Act derives from the Open Meetings Act itself.
However, with the exception of copies of closing statements
requested during the course of a meeting - - a document that generally
consists of one or two pages - - we have never held that the Open
Meetings Act provides a right to demand copies of such documents,
either in paper or electronic form. The Open Meetings Act simply
does not address an entitlement to copies.

The provision of copies of these public records is governed by the
Public Information Act.
[3]


7 OMCB 30, 34 (2010). Accordingly, these allegations do not amount to a violation of the
Open Meetings Act. MHBE has nonetheless posted the documents related to minutes and
closing statements on its website, including those related to all of the meetings identified
by the Complainant.

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The performance of this administrative function will be reflected in the April 15, 2014.
2
The April 15, 2014 minutes have not yet been approved by the Board.
3
Complainant has made requests for closed session statements, which the MHBE has responded to
pursuant to the Public Information Act, providing responsive records to the extent they are in the
custody of the MHBE and are not subject to privilege.
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Allegations regarding specific meetings

December 6, 2013 Meeting

Complainant asserts that the Board failed to notify the public of this meeting, failed to
properly close the meeting, failed to provide public access to the meeting, failed to prepare
and publish minutes, failed to summarize the closed session in the next open meeting, failed
to complete a closing statement and failed to make a closing statement available.

The exigent circumstances of the meeting on December 6, as discussed below, are critical
to understanding why MHBE was unable to provide notice or public access to the vote to
close the meeting.

On the evening of Friday, December 6, 2013, MHBEs Executive Director, Rebecca
Pearce, unexpectedly submitted an offer of resignation, sending an email to the Board at
6:20 p.m. By email sent at 6:30 p.m., the Chair of the Board convened an emergency
telephone meeting. The meeting took place at 7:00 p.m. and all substantive business was
conducted in closed session. Due to the unanticipated nature of this event, and its
occurrence after business hours, no notice of the meeting was posted on the website,
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and
no public dial-in number was posted. The conference line was only open to Board members
and legal counsel.

The Board could not delay its consideration of Ms. Pearces offer of resignation or the
other key personnel decisions that would need to be made in connection with a leadership
transition. On December 6, Maryland Health Connection was not functioning well;
MHBEs IT contractors had committed to making major fixes to the website by J anuary 1;
insurance coverage under the ACA was going to be effective for the first time on J anuary
1; and key MHBE staff were working every day including weekends to address these
challenges. To make sure that this critical work would continue, it was necessary for the
Board to make an immediate decision about the day-to-day leadership of the organization.
The Board issued a public statement immediately after the meeting stating what had
transpired during the closed session: the Board had accepted the resignation of the
Executive Director. The Boards action was widely reported in the news media.

The Board did, however, fail to include the closed meeting statement for the December 6
meeting in the minutes of the next open meeting. And while the Board understands that
issuance of a public statement concerning a closed session is not a substitute for compliance
with the Act, there was plainly no intent to conceal the occurrence of the meeting or the
action that the Board took. The Board had immediately disclosed to the public that the
meeting occurred and the action that it had taken. In addition to the closed meeting
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Complainant also contends that MHBEs failure to give notice was a violation of its By-Laws.
Because this is not an alleged violation of the Open Meetings Act, we have not addressed this
allegation in this response. See 4 OMCB 51, 51 n. 1 (2004) ([t]he Open Meetings Compliance
Board, however, only has jurisdiction to issue opinions about alleged violations of the Open
Meetings Act).

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statement (Exh. 4, December 6, 2013 Statement for Closing a Meeting, 12-6-13-Closed-
Session-Statement.pdf) MHBE has now posted to its website a summary of the meeting,
Summaryclosedsessions2013.pdf.

February 23, 2014 Meeting

Complainant contends that the Board failed to give proper notice of its February 23, 2014
meeting, failed to prepare and make available a closing statement concerning that meeting,
failed to prepare and publish minutes, and violated the openness provision of the Open
Meetings Act. These contentions are incorrect.

Complainant characterizes the Boards actions as a secret meeting on a Sunday night.
The meeting was not secret. Notice was posted on MHBEs website on February 22, 2014,
at 5:32 p.m., more than 24 hours prior to the meeting. A call-in number for the public to
use was posted. Notice was posted as soon as was practicable, after the Board determined
the date, time and place of the February 23 meeting. The subject of the meeting was the
termination of MHBEs relationship with Noridian, its prime IT contractor, and the
expansion of its relationship with QSSI/Optum to perform many of the functions that
Noridian had been performing. The timing of the meeting was driven by the progress of
negotiations between MHBE and Noridian concerning Noridians departure from the
project. Terms for the Boards consideration were identified by the parties very late on the
night of Friday, February 21. As in December 2013, there was a critical need to ensure
continued progress on the Maryland Health Connection project. Open enrollment under
the Affordable Care Act would end on March 31, and it was critical that improvements to
the site continue to be made, and that problems continue to be addressed. Any delay
beyond the weekend in considering Noridians departure would have, at that point, brought
most of the work on the project to a standstill. Under the circumstances, 24 hours was
reasonable advance notice. As explained in the Open Meetings Act (OMA) Manual (7
th

ed., Oct. 2010):

[t]he Act does not mandate any particular period of advance notice.
Undoubtedly, the General Assembly recognized that sometimes
meetings have to be held on short notice, and the Compliance Board
has ruled that, absent evidence that a public body scheduled a meeting
primarily to foil the publics right to attend and observe, the
Compliance Board ordinarily will accept the determination ... that a
meeting is needed at a particular time. The rule of thumb, given the
policies of the Act, is that notice of a future meeting should be given
as soon as is practicable after the body has fixed the date, time, and
place of its next meeting.

OMA Manual at 3-3 (internal citation and quotation marks omitted). By posting notice of
the meeting as soon as the need for the meeting was recognized, and as soon as the meeting
was scheduled, MHBE complied with these requirements.

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All other procedural requirements for going into closed session were followed. The
meeting was convened in open session and a vote was taken to go into closed session. A
closed session statement was prepared, and it, along with the minutes from the open
session, are available on MHBEs website. (Exh. 5, February 23, 2014 Statement for
Closing a Meeting,2-23-2014-Closed-Session-Statement.pdf; and Exh. 6, February 23,
2014 Board Meeting Minutes, 2-23-2014-Board-Meeting-Minutes.pdf). The Statement for
Closing a Meeting reflects that the purpose of the closed session was to discuss termination
of MHBEs contract with its prime IT contractor. Minutes of the meeting were prepared,
were approved at the next regular open meeting on March 18, 2014, and have been posted
on the website. The Board complied with the Acts procedural requirements in all respects.

Complainant correctly points out that he received two closed session statements; however,
they were simply two versions of the same document, one typed and one written in, as
Complainant describes, scribbles. The hand-written document was typed up so as to be
legible for its readers, and for posting.

Complainant also contends that the subjects discussed at the February 23 meetings were
not proper subjects for a closed session. This is incorrect. At the meeting, the Board
decided whether to approve the terms on which Noridian would depart from the Maryland
Health Connection project and whether to modify MHBEs contract with QSSI/Optum,
and the Board adopted a public statement concerning the end of Noridians role and the
transition to QSSI/Optum. These are quintessentially matters for closed session. All of the
decisions made by the Board on February 23 may have a direct bearing on MHBEs
potential claims against Noridian, and advice of counsel was the focus of discussion. These
were not ordinary decisions about the cancellation of a contract, in other words. They were
decisions about how to preserve legal claims against a contractor that had failed to perform.
These matters were legitimately authorized exceptions from the openness requirement of
SG 10-508, consistent with the Boards previous ruling in 6 OMCB 127 (2009).

The County Commissioners were clearly entitled under the Act to
meet with their legal counsel in closed session to seek advice on the
proper interpretation of the agreement or to discuss an opinion
counsel had issued in connection with the agreement. The fact that the
results might have policy implications does not alter this right.

Id. at 134.

March 7, 2014 Meeting

Complainant challenges the basis for the Board going into closed session on March 7 and
alleges that SG 10-508(a)(14) did not apply to the discussion listed in the closing
statement. As set out in the closed session statement, the Board voted to go into closed
session to discuss a contract modification for hosting and for legal advice relating to
Noridian departure.

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At the March 7 meeting, the Board discussed arrangements for hosting Maryland Health
Connection (the one category of work in which Noridian retained a role after February 24)
and the possibility of QSSI/Optum taking over that work through a contract modification.
As on February 23, the Boards decisions necessarily included consideration of the impact
the decisions may have on future litigation, and obtaining legal advice was an integral part
of making these decisions.

As the Compliance Board has recognized, it may be difficult, in describing a procurement-
related subject in a closed session statement, to explain precisely the subject to be discussed
without putting a future competitive procurement at risk. 8 OMCB 8, 14-15 (2012). Here,
the Board was considering modifying MHBEs existing contract with QSSI/Optum, but
the Board also considered it necessary to preserve the ability to solicit proposals from other
entities. Disclosing additional information might have revealed information that had the
potential to adversely impact a future procurement for hosting, if that option were pursued.
Thus, the March 7 meeting was properly closed both to obtain advice of counsel related to
potential future litigation and to preserve MHBEs ability to undertake, in the future, a
competitive procurement for hosting services.

Missing Minutes for 2012 and 2013

Complainant asserts that minutes and closing statements for certain meetings in 2012 and
2013 are missing. Complainants statements about the absence of minutes reflecting
discussion of certain contracts do not appear to allege a violation of the Open Meetings
Act. Of note, minutes for these meetings, and summaries of the closed sessions, are now
available online for the public on the websites new Board Minutes section.

Specifically, Complainant asserts that the Noridian contract was apparently approved in
February 2012. There were two meetings then and two in September 2012. The MHBE
has no statements for closed sessions Feb. 12 and 25, Sept. 11 or Sept. 25 and minutes for
only three of the four. Complaint, p. 11.

The Board met in open session on February 14 and 29, 2012. Minutes for February 14 and
February 29, 2012 are posted on the website. (Exh. 7, February 14, 2012 Board Meeting
Minutes, 2-14-2012-Board-Meeting-Minutes.pdf; and Exh. 8, February 29, 2012 Board
Meeting Minutes,2-29-12-Board-Meeting-Minutes.pdf).

In September 2012, the Board met on two dates September 11 and 25. Minutes for both
meetings are posted on the website. (Exh. 9, September 11, 2012 Board Meeting Minutes,
9-11-12-Board-Meeting-Minutes.pdf; and Exh. 10, September 25, 2012 Board Meeting
Minutes, 9-25-12-Board-Meeting-Minutes.pdf).

The Board does not have closed session statements for meetings in 2012. To the extent
that such statements were prepared, they have not been retained. This is not a violation of
the Open Meetings Act. See SG 10-508(d)(5).Summary information regarding the 2012
closed sessions is available online at Summaryclosedsessions2012.pdf.

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Complainant asserts that minutes from December 12, 15 and 17 of 2013 are inadequate.
MHBE disagrees with this assessment. It has posted information on each of these meetings
to its website, in the new special section devoted to minutes.


3. ADDITIONAL STEPS TO IMPROVE TRANSPARENCY

Since receiving the complaint, the Board has taken the opportunity to review its compliance
with the Open Meetings Act and the transparency of the Board process. Three areas were
identified as in need of improvement.

First, it was noted that it could be easier to find the minutes online. The Board therefore
directed that a new section of the website be established specifically for minutes. This is
available at: http://marylandhbe.com/board-minutes/. This tab can be found at the top of
the home page. All available minutes are now posted to this site.

Second, from 2011 through 2013, the Board did not regularly post closing statements for
closed sessions. Rather, the Board often included an explanation of the closing in the open
meeting minutes. Beginning in 2014, the MHBE began posting its closing statements, and
all 2014 closing statements are now online in the new section of the website devoted to
Board Minutes.

Third, the Board did not regularly post a summary of the actions taken in closed session.
Often, these actions were announced in open meetings and recorded in the open meeting
minutes; however, there was not a consistent process for doing so. The Board has fixed
this process moving forward in 2014, as the summary of each closed session is now
included at the bottom of each closed session statement and approved by the Board at its
next regularly scheduled meeting. These are all online for 2014.

In addition to these steps moving forward, the Board went back and posted a summary of
every closed session from the creation of MHBE in 2011 through 2013 to the new Board
Minutes page on its website. These summaries include the reason for closing the meeting
and the key actions taken. (Exh. 11, 2011 Summary of Closed Sessions,
Summaryclosedsessions2011.pdf; Exh. 12, 2012 Summary of Closed Sessions,
Summaryclosedsessions2012.pdf; and Exh. 13, 2013 Summary of Closed Sessions,
Summaryclosedsessions2013.pdf).

With respect to closed sessions of Board meetings, throughout its existence, the Board has
relied on advice of counsel from the Office of the Attorney General on whether it is
permissible to discuss topics in closed session. See 6 OMCB 127, 130 (2009). The Board
has also relied on the advice of counsel with respect to compliance with the Open Meetings
Act.

Finally, both the Chair of the Board of Trustees, J oshua Sharfstein, M.D., and one of its
members, J ennifer Goldberg, have completed the Open Meetings Act training. (Exh. 14,
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certificates of completion). Individuals who are charged with taking minutes of the
meetings and drafting formal minutes are going to take the online training as well.
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Thank you for the opportunity to respond to this matter. Since its first meeting in J une
2011, transparency in governance has been a primary consideration and goal of the Board
and the agency. The Board appreciates the importance of complying with the requirements
of the law, supports the purpose of the Open Meetings Act, and welcomes any additional
suggestions that the Compliance Board may have to improve its compliance with the Act.

Respectfully submitted,

J oshua M. Sharfstein, Chair
Board of Trustees Maryland Health Benefit Exchange



L. Kristine Hoffman
Assistant Attorney General




cc: Craig ODonnell, Kent County News
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The Hilltop Institute at the University of Maryland, Baltimore County, pursuant to an MOU with
MHBE, provides administrative support to the Board, including drafting minutes of open meetings.
Hilltop has provided this service since February 2012.
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