Disclaimer and Purpose
Purpose & Scope:
This document is based on experience, investigation, and research regarding the implementation of value-based reimbursements (VBR), fee-for-service (FFS), alternative payment methods (APM), and value-based payment (VBP) models. It is intended for professionals and stakeholders in mental and behavioral healthcare, including providers, policymakers, regulators, and taxpayers. It is not designed as an introductory resource for the general public. It is intended as critical analysis of contracting practices, ethical concerns, and/or systemic challenges within healthcare reimbursement models.
The document draws upon industry insights from provider practices, professional associations, regulatory agencies, and thought leaders, including the Oregon Health Authority (OHA), the Health Payment Center Learning Action Network (HPC-LAN), and the Oregon Value-Based Payment Compact (ORCompact). It examines commercial, Medicare, Medicaid, and employer insurance payers in Oregon, within applicable legal and regulatory frameworks.
Proposition-Based Assertions & Analytical Framework:
The assertions and conclusions presented in the document are propositions based on the best available information at the time of writing. They are intended to stimulate discussion, encourage further inquiry, and provide insight into complex issues surrounding contracting practices. These propositions should not be interpreted as definitive legal conclusions but rather as reasoned analyses grounded in observed industry patterns, expert input, and policy frameworks.
A critical challenge arises when key information is deliberately withheld by health plans, regulatory bodies, or other entities. The absence of evidence is not necessarily evidence of absence—in some situations, lack of transparency may itself be indicative of unethical, illegal, or criminal behavior. For example, when a health plan withholds essential financial or operational data that providers and the public are entitled to know, that obstructs fair negotiation, limits informed decision-making, and undermines the principles of good faith contracting. Providers and the public usually lack sufficient resources or authority to compel transparency, making them vulnerable to undisclosed risks or financial manipulations.
Speaking Truth to Power & Structural Power Imbalance
These papers, in many cases, are acts of speaking truth to power, with recognition of the entrenched structural advantages that health plans possess in negotiations and disputes. Health plans, by virtue of their size, market influence, and financial resources, are often "too big to fail," while providers who challenge them frequently lack legal or financial means to pursue extended litigation. When confronted with questionable or unfair practices, providers are often forced to accept unfavorable contract terms due to the prohibitive costs and risks associated with challenging insurers in court.
This imbalance has profound implications both for providers and the whole healthcare system. When health plans exert disproportionate control over reimbursement structures, deny treatment or claims without meaningful recourse, or they engage in opaque negotiation, the results are increased financial strain on provider organizations, decreased patient access to care, and erosion of trust in healthcare payment systems. These concerns are not abstract, they directly impact the policymakers, regulators, and taxpayers responsible for maintaining a fair and functional healthcare system.
Legal Disclaimer:
This document does not provide legal advice. All content is for educational, discussion, and training purposes only. Readers should consult legal professionals before making decisions based on the propositions, assertions, or conclusions presented. Any discussion of contracting practices, including specific references to Moda Health or other entities, is intended as illustration and is subject to revision as new information becomes available. No statements within this document constitute allegation of illegal, unethical, or criminal activity. Rather, they identify potential areas of concern, systemic weaknesses, and regulatory gaps which warrant further examination by legislators, regulators, and policymakers.
Relevance to Legislators, Regulators, and Taxpayers:
The issues discussed in this document extend beyond individual provider contracts and directly impact legislative policy, regulatory oversight, and public interest. As taxpayers ultimately fund Medicaid, Medicare, and employer-sponsored healthcare subsidies, there is vested interest in ensuring that all health plans operate transparently, ethically, and in alignment with public health objectives. Legislators and regulators play critical roles in establishing and enforcing policies that promote fair contracting, consumer protection, and accountability in healthcare payment models.
Living Document:
This document will be updated periodically as new information emerges. Readers are encouraged to submit questions and feedback to MRI. Corrections, clarifications, and objections will be considered for future revisions.
Argument: These Articles Are Protected Speech and Freedom of the Press Under the First Amendment
The First Amendment to the United States Constitution states:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
These articles are protected speech under the First Amendment because they fall within the well-established legal and constitutional framework that protects expression, journalism, and public interest advocacy. They also constitute freedom of the press, as they serve a public watchdog function by critically examination of the practices of powerful institutions, specifically, health plans, policymakers, and regulators.
1. The Articles Contribute to Public Discourse on Matters of Public Concern
The U.S. Supreme Court has held repeatedly that speech addressing issues of public concern enjoys the highest level of First Amendment protection. These articles examine healthcare reimbursement models, transparency, contracting ethics, and the impact of systemic power imbalances. Each of these issues are of crucial importance to policymakers, regulators, providers, and the public.
In New York Times Co. v. Sullivan (1964), the Supreme Court ruled that public discussion, even if critical of powerful entities, is protected to prevent self-censorship and chilling effects on free speech.
Similarly, in Snyder v. Phelps (2011), the Court emphasized that speech related to public policy and governance is at the core of First Amendment protections, even if controversial or upsetting to powerful interests.
Since these articles analyze, critique, and comment on healthcare policies and practices that affect millions of people, they are protected as contributions to public discourse and cannot be suppressed because they challenge entrenched power structures.
Arguments Supporting Public Interest:
Consumer & Provider Protection: MRI highlights how regulatory gaps harm healthcare providers, employers, and the public.
Transparency & Accountability: MRI argues that Oregon health plans operate without sufficient oversight. This is a legitimate policy concern.
Legislative & Regulatory Change: MRI’s call for statutory definitions and independent audits aligns with national trends in healthcare reform and antitrust enforcement.
Whistleblower Protections: MRI advocates for independent reporting mechanisms that will protect providers and the public from retaliation. This will reinforce protection of ethical and legal concerns.
2. The Articles Function as Press-Like Publications, Affording Them ‘Freedom of the Press’ Protections
The First Amendment does not limit freedom of the press to conventional media outlets such as newspapers, television networks and Internet publications. Courts have recognized that independent scholars, researchers, bloggers, and advocacy organizations also enjoy press protections when engaged in public interest journalism.
In Obsidian Finance Group v. Cox (2014), the Ninth Circuit ruled that bloggers and independent journalists receive the same First Amendment protections as traditional journalists when reporting on matters of public concern.
The articles published by MRI serve a journalistic function, they investigate and discuss healthcare contracting practices, present research-backed analyses, and seek to inform the public, regulators, and policymakers about significant industry practices.
Since the articles disseminate information, expose systemic concerns, and encourage public debate, they are akin to journalistic work and therefore protected under freedom of the press.
3. The Articles Do Not Constitute Defamation or Unprotected Speech
While freedom of speech is not absolute, and certain categories of speech, such as defamation, incitement, or fraud—are not protected, these articles do not fall into any of these categories.
Truth is an absolute defense against defamation claims. These articles are proposition-based, relying on available information, expert insights, and industry research. They do not make reckless or knowingly false statements, instead they highlight systemic issues that merit public discussion.
Matters of opinion and analysis are protected speech. Courts have consistently ruled that expressing concerns, raising questions, and analyzing policies do not constitute defamation, especially when discussion relates to powerful entities’ actions which effect the public.
For example, in Gertz v. Robert Welch, Inc. (1974), the Supreme Court clarified that public figures (including corporations and industry leaders) must show actual malice—meaning knowledge of falsehood or reckless disregard for the truth, to claim defamation. Since these articles engage in good faith discussions based on research, industry standards, and available data, they do not meet the standard of “unprotected speech”.
4. Protection for These Articles Aligns with the First Amendment’s Core Purpose
The Founders of the U.S. Constitution recognized that an informed public and a free press are essential to democracy and accountability. Allowing corporations or powerful institutions to silence critical speech through threats of litigation or economic pressure would undermine the very purpose of the First Amendment.
In Miami Herald Publishing Co. v. Tornillo (1974), the Supreme Court ruled that the government cannot compel or restrict editorial speech, reinforcing the idea that critical analysis of powerful institutions is constitutionally protected.
Courts have consistently recognized that powerful financial entities, including health insurers—must be subject to public scrutiny to prevent unchecked influence over public policy.
By providing well-reasoned, research-driven analysis of healthcare contracting issues, these articles contribute to transparency, accountability, and democratic discourse, which are precisely what the First Amendment seeks to protect.
Conclusion
These Articles Are Constitutionally Protected
A conclusion that health plans, left unchecked, will create moderately severe to catastrophic harm is far more important than mistakes or overstatement, provided that the opinion or conclusion is based on good faith efforts to consider substantial evidence, logical analysis, and reasonable projections. Based on Supreme Court precedent and First Amendment principles, MRI believes these articles are clearly protected as:
Speech on matters of public concern (healthcare policy, contracting ethics, systemic power imbalance)
Journalistic-style publications (information for the public, regulators, and policymakers)
Good faith analyses and opinions (which do not meet the legal threshold for defamation or unprotected speech)
Any attempt to suppress or retaliate against these articles, whether through legal threats, contractual coercion, or economic pressure, should constitute a violation of free speech and freedom of the press protections under the U.S. Constitution.
MRI believes, in good faith, that these papers serve a constitutionally protected function by fostering public debate, holding powerful institutions accountable, and advocation for fair and transparent healthcare policies.