Though the members of the University of Maryland Medical System's board are appointed by the governor and the institution receives millions of dollars in taxpayer funds each year, state law allows the health system to largely operate in secrecy, its board meetings kept private and its business documents withheld from the public.
At least twice in the past dozen years, state lawmakers sought to change that. But the 13-hospital network fought off the proposals, warning that the scrutiny would put it at a disadvantage in the competitive health care industry.
Despite revelations that the health system has done millions of dollars of business with members of its board of directors — generating calls for transparency and investigation — General Assembly leaders and Gov. Larry Hogan are not pursuing measures to subject the system to the public information and open meetings laws that apply to state and local government agencies.
Sen. Jill Carter, who proposed legislation that initially brought the impropriety to light, said she would have been open to adding transparency measures to the UMMS reform bill that is making its way to the governor’s desk for signature. Carter said she believes all minutes and agendas from the UMMS board should be published on the medical system's website and documents about contracting, procurement and financial management should be available to the public upon request.
But others in Annapolis did not push for such reforms as the UMMS scandal unfolded over the final few weeks of the General Assembly’s 2019 session, which ends Monday at midnight.
Lawmakers passed bills sponsored by Carter and the late House Speaker Michael Busch to prohibit board members from holding no-bid contracts with the medical system, and to increase transparency surrounding financial disclosure forms they file annually with state health care regulators. The legislation also forces all UMMS board members to leave the panel and seek reappointment if they want to return, and launches an audit of UMMS contracting.
Alexandra Hughes, who was Busch’s chief of staff, said there wasn’t time to consider more extensive transparency measures with the session’s busy legislative agenda. The hospital system is not a state agency, she said, and opening up its records raises concerns about patient privacy.
“We are trying to deal specifically with what is going on with the board,” she said.
Busch, who sat on the system’s board, called the scandal the largest of his tenure.
Jake Weissman, chief of staff to Senate President Thomas V. Mike Miller, said leaders of that chamber were open to transparency-minded reforms, but followed the House’s lead in developing the legislation.
Asked if Hogan thinks UMMS should be subject to the public information law, his spokesman Michael Ricci said the governor would have considered it if passed by the legislature.
UMMS spokesman Michael Schwartzberg said the medical system would not support such a measure.
“Many state laws, management structures, and procedures developed to implement governmental functions are not appropriate for the efficient delivery of patient care operations,” he said in an e-mail. “As a private organization, being subject to the [Maryland Public Information Act] would place UMMS at a competitive disadvantage and enable competitors access to proprietary information.”
The medical system as it exists today dates back to a 1984 state law that transformed the state-owned University Hospital into a private corporation, though one that continued to receive some state support and oversight. The system has grown since into a statewide health care network that collects more than $2 billion annually from patient care.
That law spelled out that UMMS could not be considered a state agency or public body, nor would laws that govern such bodies apply to it.
That has been interpreted to include two laws central to government transparency — Maryland’s Open Meetings Act and Public Information Act.
The open meetings law, which requires many state and local public bodies to hold their meetings in public and allows the public to inspect meeting minutes, has never been applied to UMMS. Other quasi-governmental agencies that are exempt from some open government laws include the Maryland School for the Blind, the Maryland Humanities Council and the Maryland Legal Services Corp.
It has been less clear whether UMMS is subject to the Maryland Public Information Act, which allows anyone to request documents and records from government agencies and compels the agencies to respond within 30 days about their ability to supply the information. Public records can include written correspondence, official forms and documents, or audio and video of public processes.
In 2007, state lawmakers proposed subjecting the hospital system to the public information law, but the General Assembly did not advance the bill, instead ordering it be studied. In that study, state legislative analysts concluded that it was “probable” that the public information law applied to UMMS, citing its “significant” interaction with state government and the “broad scope” of the law.
The state attorney general’s office concurred with that assessment, and suggested that any change to the state law exempting UMMS from the transparency measures was “a policy decision entrusted to the Legislature.”
Around the same time, the medical system’s openness was being tested in court — in an effort to unearth details about corrupt contracting.
A community activist, the Rev. Daki Napata, sued UMMS for denying a public information request for records relating to a construction contract at the center of a scandal involving former state Sen. Thomas Bromwell. Bromwell, a Baltimore County Democrat, eventually was convicted of accepting bribes to steer construction work for UMMS and a state juvenile detention center to a company.
UMMS argued it was not a state agency and therefore not subject to the public information law.
State courts repeatedly upheld the system’s denial of Napata’s request. In 2011, the Court of Appeals, Maryland’s highest court, ruled that UMMS could be considered an “instrumentality” of the state, but nonetheless found the system to be exempt from the state’s public information law.
The General Assembly again considered bills in 2013 to apply the law to UMMS, but the legislation did not advance out of committees. Testimony submitted by UMMS officials shows the hospital system saw the public information law as an impediment to its ability to recruit physicians, develop clinical programs and expand its footprint, and could give competitors access to its confidential and proprietary information.
As UMMS again faces scrutiny for contracts it has awarded, its exemption to public transparency laws may be preventing some details from coming to light.
Since The Baltimore Sun revealed that board members including Baltimore Mayor Catherine Pugh held lucrative contracts with the system, UMMS officials have refused to provide minutes of board meetings, details of financial audits and documentation of contracts. That includes documentation related to its purchase of 100,000 “Healthy Holly” children’s books from a business entity operated by Pugh.
Rebecca Snyder, executive director of the Maryland/Delaware/DC Press Association, said she thinks the “culture of openness” that public information and open meetings laws help create can prevent such scandals before they begin.
“This is totally, exactly what you get when there is that opacity,” Snyder said.
Still, even if lawmakers applied the transparency laws to the hospital system, it’s unclear what records UMMS could be compelled to release, or how much of its board’s actions legally could have taken place behind closed doors, given broad exceptions in both laws.
The state open meetings laws allows bodies to meet in closed executive session for some matters, including to consider personnel decisions or to receive legal counsel.
And the public information law protects from disclosure personnel records, medical information, and commercial information or trade secrets that officials deem confidential. Agencies also can withhold documents if they decide disclosure would be “contrary to the public interest,” including investigatory records and documents related to a decision-making or deliberative process.
Lisa Kershner, Maryland’s public access ombudsman in the attorney general’s office, said it’s up to the agency responding to a public information request to determine if records are subject to one or more of those disclosure exemptions.
“They are ultimately responsible for that judgment call,” Kershner said. “I don’t really know of any litmus test for this one way or another.”