Ballad Health asking lawmakers to keep certain "competitive" records confidential

A health care merger with a promise of transparency is now the subject of legislation to keep certain information confidential.

Ballad Health is asking lawmakers in Tennessee to keep some of their "competitive" records from the public's view. The not-for-profit said the changes are needed to make sure the new health system has a fair chance to compete with other health systems and for-profit health care companies.

"While Ballad Health is subject to state oversight, it is not a public entity," the health system said in a statement.  "We must continue to be able to compete with health systems outside our region for recruitment of medical professionals as well as services that people are currently leaving our region to obtain...Most of our revenue comes from outpatient services, where Ballad Health has a minority market share, with competition in the region coming from some of the largest for-profit health care companies in America. The legislature never intended for those companies to have an unfair competitive advantage in the local marketplace."  

Sen. Rusty Crowe (R), District 3, is sponsoring the legislation on Ballad's behalf. He said the health system provided him with a draft proposal in recent weeks. Both Ballad and the senator assured the public the merged organization will still be more transparent than any other health system in Tennessee.

"This legislation just says that those things that are normally held as proprietary information in hospital systems as they operate and try to provide health care to their citizens will be held as proprietary information for Ballad," Sen. Crowe said.

Sen. Crowe called it "an oversight" that the state, lawmakers and the health system failed to address the confidentially issue earlier in the process, as the final cooperative agreement included more reporting details than first expected. He said, at first glance, it's easy to misunderstand the bill's intent.

"I would not pass something that would try to infringe on the public's viewing of information that is normally seen as being public," Sen. Crowe said. "This legislation would just say let's keep proprietary what normally is kept proprietary for hospitals."

If passed, the bill would still require all information go to the state for regulatory review, but keep confidential from the public certain records, including those related to finances, agreements and facility closures or repurposing.

"Virginia already permits redacting of information that is competitively sensitive," Ballad Health said. "The bill proposed by Senator Crowe is a sensible approach that ensures an unprecedented level of transparency, subjects Ballad Health to unprecedented levels of state oversight and review, and ensures competitively sensitive information remains confidential, as it should."

After sharing the legislation with the Tennessee Coalition for Open Government, Executive Director Deborah Fisher shared her concerns. Fisher said she understands why some of the information would need to be private, but added the legislation leaves room for interpretation.

"It does seem very broad," she said. "I would be concerned about some of the language that's very broad that would close down records made by the state in monitoring compliance with the agreement...If the hospitals fail to meet the requirements of the (Certificate of Public Advantage), will the public be allowed to know what the state found? Or will that be secret under this exemption?"

The bill also would give Ballad Health the opportunity to challenge the release of certain records in court.

"The other thing that concerns me is the ability of the hospitals to essentially sue the state if the state says, 'We think this should be public,' and the hospitals don't think it should be," Fisher said. "...One of our concerns about (public records) exemptions is that they can be passed too quickly without enough vetting on the public's right to know information."

Considering this legislation, we wanted to know exactly which Ballad Health records would eventually be available for public inspection. The health system sent us this 17-page list.

The Tennessee Department of Health also said any failures by Ballad Health to uphold its commitments will be outlined in publicly released reports.

"The Department of Health has specific reports to prepare annually, which will show whether TDH considers the public benefit is continuing," TDH Communications and Media Relations Director Shelley Walker said. "These reports will be made public, and if there are shortcomings those will appear in the reports...Ballad also has to provide TDH detailed quarterly reports and an annual report, and those will be posted on our website."

We asked the state if those records will also outline specific problems if the health system fails to meet its commitments.

Walker said she could not answer a "hypothetical question regarding unknown documents."

Copyright WJHL 2018. All rights reserved.

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