Oops! That ‘Open Door Forum’ won’t be off the record after all

Felice J. Freyer

About Felice J. Freyer

Felice J. Freyer is AHCJ's vice president and chair of the organization's Right to Know Committee. She is a health care reporter for The Boston Globe.

Reporters were taken aback on Monday when they received an invitation to a national phone call billed as an “Open Door Forum” – with instructions that remarks made on this public call would not be on the record.

After AHCJ inquired, a spokesman for the Centers for Medicare and Medicaid Services stated that the call would, in fact, be on the record and that the off-the-record requirement was included by mistake.

But it’s unclear whether a revised invitation was sent. And the incident illustrates the importance of being alert to efforts – mistaken or deliberate – to block reporters’ access to open meetings.

The call, scheduled for 1 p.m. Eastern on Wednesday, will focus on proposed changes to CMS’ hospital rating system, which rolled out in 2015 after much pushback from hospital groups. The notice went to thousands of “stakeholders,” such as physicians, advocates, and nonprofit organizations.

Many reporters are also on the distribution list and traditionally have listened in and reported on such calls. These discussions provide insights into how various sectors of the healthcare industry, including federal health officials, are reacting to proposed changes. Audio and transcripts from these and other forums are routinely posted online.

“It’s information that consumers should be privy to,” said Sabriya Rice, vice chair of AHCJ’s Right to Know Committee and chair of a health and medical journalism program at the University of Georgia. “That’s the point of having these conversations in an open, public forum in the first place.”

So reporters were surprised when the announcement contained the following statement:

“This National Call is not intended for the press, and the remarks are not considered on the record. If you are a member of the Press, you may listen in but please refrain from asking questions during the Q & A portion of the call. If you have inquiries, please contact CMS at Press@cms.hhs.gov. Thank you.”

This would appear to violate the Department of Health and Human Services media policy, which states that an open meeting is, by definition, open to the media, and that going “off the record” occurs only by mutual agreement.

CMS spokesman Johnathan Monroe said the notice was sent in error by an intern who used “an old template.”

“Please let your contacts know that I have approved this being on the record, though we prefer on background,” Monroe said in an email.  The call participants include staffers who usually don’t want their name out in the media, he explained.

It’s unclear how speakers at a public forum could be considered speaking “on background,” since everyone on the call will presumably know who they are. But as this is a request rather than a requirement, AHCJ did not press the issue.

Asked whether a new announcement would go out stating that the meeting is on the record, Monroe said he would suggest doing so but does not have the authority to require it.  The Open Door Forum announcement did not come from the media office, he said. People on the call will be told that the discussion is on the record, he said. But that won’t help reporters who skip the call because they have no use for off-the-record comments.

The incident is reminiscent of past battles AHCJ has fought.

In 2009, the CDC released embargoed information about autism prevalence in a phone call to advocates, who were free to blog the news while reporters were supposed to withhold it until the embargo lifted. CDC pledged not to hold such a call again in apparent violation of embargo rules.

In 2011, HHS held “listening sessions” for the public in cities around the country, but closed the door on reporters who wanted to cover them. After AHCJ complained, HHS established a policy that meetings open to the public must be open to the media.

In both cases, as with Monday’s Open Door Forum announcement, reporters alerted AHCJ and the Right to Know Committee, whose complaints led to change. But it will require constant vigilance to make sure the doors stay open.

Journalists confronting difficulties obtaining public information are urged to contact Right to Know chair Felice J. Freyer (felice.freyer@globe.com) or vice chair Sabriya Rice (sabriya.rice@uga.edu).

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