MADISON — The Wisconsin Department of Health Services is wrong to keep secret the names of some people who publicly commented about Gov. Scott Walker's proposal to drug-test Medicaid applicants, open records advocates and a former head attorney for the agency say.
The department insists it is doing what is required to protect health information under the federal Health Insurance Portability and Accountability Act, or HIPAA, as well as state laws protecting the identity of Medicaid applicants.
The department routinely solicits public comment on a variety of issues, from requests for federal waivers to rule changes. How it handled comments in this case could mean that the public won't be able to find out who weighs in — either pro or con — on other issues in the future.
The names of anyone who commented and did not self-identify as being on Medicaid should be made public, said Diane Welsh, a private attorney who was the top lawyer for the state Department of Health and Family Services from 2005 to 2011 under Democratic Gov. Jim Doyle.
"The department is correct that it cannot share personally identifiable information about Medicaid enrollees," Welsh said. "However, if a Medicaid enrollee shares her own personal information in a public setting, it is the enrollee — and not the department — who has done the sharing."
Federal regulations cited by the department to The Associated Press to justify withholding the names do not require redacting a record of a public hearing simply because people chose to share their personal information, Welsh said.
Robert Drechsel, the former head of the University of Wisconsin journalism school and an expert on media law, agreed that someone who decides to speak at a public hearing has given their consent to have what they shared be made public.
"It just doesn't make any sense," Drechsel said of the department's decision.
The comments were submitted in reaction to Walker's plan that would make Wisconsin the first state to require drug screening as a condition for Medicaid eligibility. President Donald Trump's administration could decide sometime this summer on the request.
The AP requested the input received by the department during a 30-day public comment period that ran from April 19 to May 19. The AP's review of comments submitted showed that only five out of more than 1,000 supported Walker's plan.
In its initial response to the AP request on June 16, DHS blacked out nearly all of the names of people who commented, including a state lawmaker and others who spoke at the public hearings in Wausau and Milwaukee. The names and addresses of hundreds of people who submitted a form letter stating their opposition through the advocacy group Citizen Action were also blacked out.
The AP asked the department to reconsider. Following the second review, DHS on July 7 made public some names of people who had testified but earlier been redacted. That included state Rep. Dan Riemer and Robert Kraig, director of Citizen Action, both of whom spoke at the Milwaukee hearing.
It also released the city and state of people who signed the Citizen Action petitions but not their names.
"Their response is a clear admission they were in the wrong to redact as much as they did," said Bill Lueders, president of the Wisconsin Freedom of Information Council.
But many other names remained blacked out.
"We, as an agency, are bound to protect certain information," DHS attorney Fratney Miller said in an interview defending the move. Even though the people who commented on the Medicaid waiver did so voluntarily, she said, once the department was in possession of anything state and federal medical privacy laws require to be confidential "we are bound by an obligation not to disclose that information."
The transcripts from the two public hearings show that testifiers were warned their comments would be public.
"Careful what you might say about anything or anyone in this regard, because it is forever in the public record at that point," state Medicaid director Michael Heifetz told speakers at the April 26 hearing in Wausau.
But at that hearing, names of two of the 15 people who offered testimony was blackened out by the department in response to the AP's record request. Of the 36 people who testified at the Milwaukee hearing, 11 names were redacted.
In one instance, a person who said she has a disabled daughter was not identified. Another person not identified does not indicate they or anyone in their family is on Medicaid, but simply testifies that the proposal will lead to more people not having insurance.
Miller, the DHS attorney, said that every public comment, email, letter or other communication received was read and "using state and federal laws we redacted information we felt was protected and the department was barred from sharing."