A bill introduced by Sen. Linda Lopez, D-Albuquerque, would make the boards of hospitals that receive public funds subject to the state’s Open Meetings Act when they are formulating policy.
The bill, Senate Bill 719, would enact a new section of the Public Health Act requiring all such meetings of a quorum of hospital decision-making bodies be open to the public.
The transparency bill was amended in the Senate Rules Committee and sent last week to the Senate Public Affairs Committee without a recommendation, with three members of the committee voting against it.
While the bill is unlikely to make it through the Legislature before the session’s end, it gives some additional momentum to the ongoing discussion about whether policy decisions that directly affect people in the community should be made without public input.
The bill is opposed by the New Mexico Hospital Association. President and CEO Jeff Dye said, “We’re very much opposed. The Open Meetings Act is a government statute for oversight of government operations and public bodies. Private organizations [such as many hospitals] are not public bodies. They shouldn’t be subject to the Open Meetings Act.”
Susan Boe, executive director of the Foundation for Open Government, said her organization has looked at the bill, although “no one has reached out to us about it.”
The Open Meetings Act, she said, “is meant to apply to public bodies. And so we’re really uncertain about what’s going on there.” Just because a private hospital receives state or federal money, she added, “doesn’t mean it is subject to the Open Meetings Act.”
The Foundation for Open Government, a private organization, does open its own meetings to the public, Boe said. But she added that she worked previously for the private nonprofit Youth Shelters, which received city, county and federal money — “Does that mean you have to open up your meetings?” she asked.
Bruce Wetherbee, a union consultant who helped Lopez draft SB 719, said that most “private” hospitals are not really private “in the pure sense” because “they could not operate without the money dedicated to operations by the public.”
The way he sees it, “We have policy made at all these hospitals and they do it behind closed doors, yet operating with public revenues and making decisions that affect people every day that someone has to go to the hospital.”
Lopez, who also has sponsored a safe staffing bill for hospitals, did not return calls seeking comment on her bill.
But at a hearing on it, she offered an example of the impact of policies formulated behind closed doors.
Last month, the Taos Health Systems board of directors voted to close the Peñasco Health Clinic on April 1.
According to a story in The Taos News, closing the clinic was not on the agenda circulated publicly in advance of the Feb. 25 vote, although it was included under the CEO’s report. A member of the county commission said in the story that she represents Peñasco on the commission, yet was not consulted.
The decision to close the clinic was based on financial considerations. It is expected to lose $141,000 in the current fiscal year and had not increased referrals for Holy Cross Hospital. Another clinic operates in the small, rural community.
The Department of Health cautioned in a legislative report on the bill that opening the meetings of some decision-making bodies could violate federal patient privacy laws.
Wetherbee calls that a “red herring” because “federal law is in place for that.” The real problem, he added, is that “they don’t want anybody looking at what they do.”
The report also points out that the Open Meetings Act contains an exception for portions of board meetings in which strategic and long-range business plans are being discussed.
The New Mexico Hospital Association suggests in the report that since most “Medicaid funding goes to hospitals through the private contracting process of managed care organizations, those monies may not be public funds at that state.”
Additionally, it said that a quick survey of state hospital associations around the U.S. found that out of 20 who responded, the groups apply open-meetings laws only to government hospitals and that some exempt certain types of proceedings from the requirements. According to the fiscal impact report, Kansas and Mississippi specifically exempt public and private hospitals from their open meetings laws.
Dye said in an interview that he thinks Lopez is overreaching in her definition of public funds. He offered as an example a construction company hired for public works projects that uses taxpayer money. “Nobody is reaching into their boardrooms to make their operations subject to the Open Meetings Act,” he said.
To Wetherbee, the community should be involved in decisions about the needs of the health care community.
“We’re saying that you have to make yourselves accountable to the public you claim to serve,” he said. “Why shouldn’t the community that puts up most of the money be protected? … We’re trying to get that discussion running. … We know it’s a long road.”
He admitted, “We’re trying to stir up a hornet’s nest a little. But it’s not just for the hell of it.”
Hospital study groups aimed at boosting transparency about hospital decisions are just getting underway in both Taos and Santa Fe.
Contact Anne Constable at 986-3022 or aconstable@sfnewmexican.com.
