by Andrew Walden

Hawaii’s Prepaid Health Care Act is secured by a conference call.

It took a Federal Freedom of Information Act request to find out, but that is the message Hawai`i Free Press received from federal officials.

Flashback to the legislative session of 2011. In legislative testimony on HB1134, health care industry leaders and the State Attorney General’s office warned that any change to Hawaii’s Prepaid Health Care Act could cause the law to become void—an understanding that has been nearly-unanimous since 1983 Congressional action allowed Hawaii’s 1974 Prepaid Act to finally take effect.

HB1134, repealed "part V of the Hawaii Prepaid Health Care Act and Act 99, Session Laws of Hawaii 1994, relating to the future termination of the prepaid health care law.”

In spite of the warnings, legislators passed HB1134, but Governor Neil Abercrombie put it on his “Intent to Veto” list June 27, 2011 saying, “Further investigation is needed on whether approval of this bill would have unintended consequences to Hawaii’s Employee Retirement Income Security Act (ERISA) waiver.”

Two weeks later, he reversed himself. Signing HB1134 into law as Act 228 of 2011, Abercrombie wrote July 12, 2011: “The bill was on the veto list because the Administration was in the process of consulting with federal officials. The Administration has since received opinions from the U.S. Department of Health and Human Services and the U.S. Department of Labor that concluded the intent of both the federal government and State of Hawai'i is to retain the Hawai'i Prepaid Health Care Act alongside the federal Patient Protection Affordable Care Act.”

Hawai`i Free Press asked the Abercrombie administration to release a copy of the “opinions from the U.S. Department of Health and Human Services and the U.S. Department of Labor.” We received no response.

We then filed a Federal Freedom of Information Act request with both federal departments in an effort to obtain copies of the “opinions.” A year later, we have the response.

The request to the US Department of Health and Human Services yielded no record of any opinion or other communications regarding Abercrombie’s decision.

The request to the US Department of Labor yielded a four-page email chain running from May 6 through June 21, 2011. At the end, Abercrombie’s then-chief of staff Amy Asselbaye  scheduled a conference call for June 22 or 23 with Herb Schultz, an Obama political appointee cheered by the Gay and Lesbian Victory Institute, who is Region IX Director of DHHS based in San Francisco.

In a June 21 email exchange, Schultz asks Asselbaye to “give us a few questions so I can have all the right players.”  Asselbaye replies:

1) Will the passage of the bill jeopardize Hawaii’s ERISA waiver?

2) What is the view of DoL and/or DHHS on the language in ACA attempting to protect the mandate under Hawaii’s Prepaid Healthcare Act?

Those questions are the end of the DoL’s “responsive records.” There is no transcript or minutes of any conference call and no written statement or administrative finding.

Six days later Abercrombie put the bill on his “Intent to Veto” list.

Two weeks after that, Abercrombie reversed himself and signed the bill.

The US DHHS and US DoL paper trail ends June 21.

What happened between June 21 and June 27 which caused Abercrombie to threaten a veto?

What happened between June 27 and July 12 for Abercrombie to reverse himself?

The Abercrombie administration did not respond to our request for an answer.

When a new administration enters the White House either in four months or four years, political appointee Schultz will be gone.

When a new administration enters the Fifth Floor either in two years or six years, Abercrombie will be gone.

Asselbaye already is gone.

Behind them is left only a four-page email chain and the word of Neil Abercrombie.

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Text, Status: HB1134

Full Text: FOIA Response from DoL and DHHS

October 1, 2010: Health Insurance? No need: Abercrombie promises to dump Prepaid Health Care Act