jonetta rose barras: The proposed solution to the Medicaid managed care debacle is only temporary
Next week when legislators return from their summer recess, the DC Council is expected to approve the “Contracts with Managed Care Organizations for the Provision of Health Care Services to District Residents Emergency Approval and Authorization Act of 2021.” That bill, introduced by Chairman Phil Mendelson, at-large Council member Robert White and Ward 7 Council member Vincent C. Gray, would extend the three existing Medicaid MCO contracts with AmeriHealth Caritas of DC Inc., CareFirst Blue Cross Blue Shield Community Health Plan of DC, and MedStar Family Choice Inc.
No one should think approval of Mendelson’s bill will end the operatic saga associated with the city’s Medicaid managed care program. In fact, this legislation could make things worse. It certainly will call into question the integrity of the District’s entire procurement process and whether there is a fair and ethical system for business owners to challenge decisions when things go afoul.
What’s more, round four is taking shape even as I write this column: Former MCO contractor Amerigroup DC — whose initial protest accusing the Bowser administration of violating local procurement laws and engaging in irregularities in scoring and bias instigated last December’s pivotal DC Contract Appeals Board ruling — has filed another complaint asking the CAB to prevent implementation of the extensions.
A citywide advocacy group — the DC Health Care Network, headed by Ambrose I. Lane Jr. — is pushing council members to amend Mendelson’s legislation to include provisions to better protect the city and Medicaid recipients against the kind of bullying performed by MedStar Health Services. The group has also filed a civil rights complaint with the U.S. Department of Health and Human Services against MedStar.
Deputy Mayor for Health and Human Services Wayne Turnage has announced that the executive intends to implement a new MCO solicitation, which seems unlikely to resolve matters given that he has overseen three botched procurements in four years.
The CAB has not yet issued its final order in the case. If the CAB agrees to block the extensions as Amerigroup has requested, everything could end up in court. That’s all the more likely since late Thursday Bowser filed a motion to dismiss the entire protest; she is claiming that the CAB lacks jurisdiction, according to sources who have seen the document.
Mendelson and the other council members assert in a Sept. 30 memo that the emergency legislation — which was worked out between the executive and the legislative branches — would offer “stability in the provision of care for the 250,000 District residents participating in the Medicaid and DC Health Care Alliance programs;” give the mayor the nine months needed to “solicit and award new, long-term MCO contracts;” and “minimize the legal and financial risks to the Government if we (the Council) do nothing.”
Falsely, the memo’s authors claim that through their actions the “CAB-ordered re-evaluation has been respected and is the basis for continuing the two contracts that are not controversial.”
Actually, the CAB didn’t just order a reevaluation; it also mandated that “If any existing awardee is determined to no longer be one of the three most highly rated offerors, the District shall not exercise any option year under that contract.” It has been clear for the past nine months that MedStar Family Choice could not even meet the criteria for a reevaluation because it had failed to submit its minority contracting plan as required by law.
Consequently, if the council approves the emergency extension of the MedStar contract, it would be circumventing the CAB. Equally important, it would endorse the executive’s violation of the law governing subcontracting with certified minority businesses.
My reaction to this workaround by the council remains the same as I articulated last week: The council — which up to now has stymied the administration’s efforts to keep MedStar as an MCO contractor — has lost its way. With passage of the Mendelson-White-Gray legislation, legislators will become conspirators with a corrupt executive.
The bill, as drafted, is consistent with the proposal presented by Mendelson to Mayor Muriel Bowser in a letter dated Sept. 15. That correspondence contradicted a memorandum Mendelson sent to his members on Sept. 10.
Despite criticism from some council members and the public, Mendelson persisted, meeting with City Administrator Kevin Donahue several times to iron out an agreement. Earlier this week, Mendelson also met with Bowser and her senior adviser, Beverly Perry.
“There were discussions primarily about the path forward over the next nine months with minimal disruption,” Mendelson told me during a phone interview on Tuesday, adding that he wants to “ignore what’s happened over the last 10 months.”
Say what?!
Is he really willing to forget that DC laws have been broken by none other than the mayor of the District? That’s what he would have to do even if his intent is only to ignore the political squabbling that came as a consequence.
Help us.
“A lot has happened that is disturbing to me,” he continued, adding that if the council doesn’t take any action and allows passive approval of the contract extensions, the legislature would be “kicking the can down the road.”
Mendelson may want to induce a kind of self-amnesia about the executive’s nearly yearlong lawlessness. Let’s hope, however, that residents won’t forget the corruption and contract-steering campaign begun in December 2020 by Turnage and enabled by Bowser.
They deliberately and systematically sought to circumvent the CAB order that grew out of Amerigroup DC’s protest. The CAB agreed with Amerigroup’s argument that the city violated local contracting laws, did not follow its own procedures for the procurement, and was biased toward the former DC contractor.
Using the fake crisis to justify the Health Care Resources Emergency Order, Bowser extended the contracts on Sept. 16 and sent notice to the CAB that she had done so. There remains some question about whether she even had the authority to take such action.
I asked DC Attorney General Karl Racine a series of questions via email: Did the mayor have the authority to extend contracts as part of her emergency order? Does she have the authority to overrule the CAB? And can she move forward with the extensions, despite the recent protest filed by AmeriGroup DC?
He did not respond.
Instead, his spokesperson, Marrisa Geller, gave me a song and dance: “The [OAG] represents the District before the [CAB], and we updated the Board about the Mayor’s actions via this status report.
“Because this litigation is ongoing, we’ll decline to comment further at this time, and we’d suggest reaching out to the Executive Office of the Mayor with additional questions,” Geller added.
And here I thought all along that as the independent, elected AG, Racine represented the citizens of the District first and foremost. They’re the ones who put him in office and are paying his salary.
When I asked Administrative Law Judge Nicholas Majett, who has been hearing the case and made the various rulings, for his reaction to Bowser’s action, the CAB’s general counsel, Mark Poindexter, sent back an email with two words: “No comment.”
Tony Felts, the spokesperson for Amerigroup DC, did comment, however, issuing a statement that quoted from the company’s CAB filing: “If the District’s disdain for DC law and [the] CAB’s authority was not already clear based on its past unlawful actions, the District’s latest unlawful execution of the contract options removes all doubt. The District has made it clear that it has no interest or intention of complying with DC law or the CAB’s order.”.
In its emergency protest with the CAB, Amerigroup charged that the District has “flagrantly violated the statutory stay in place in this protest, ignored the CAB’s December 1, 2020 order and openly flouted the CAB’s authority and DC Law.”
The company’s complaint urges “the CAB to act immediately to enforce the statutory stay.” Amerigroup DC offered that if the CAB fails to “stop further unlawful actions,” then “the integrity of the entire District procurement process will be imperiled and the ability for a protester to obtain effective relief for such flagrant violations of the statutory stay, the CAB’s orders and DC Law will be illusory.”
You can bet Bowser and Turnage — after already having blamed the council and then bullied the chairman into what I have called an unethical position — will cast themselves as a rescue squad. Consider that the local version of the big lie. Donald Trump is not the only politician capable of creating and promoting one.
Mendelson’s legislation won’t be enough to prevent future procurement disasters by Turnage. Remember he announced last month that he intends to re-procure the current MCO contracts. The extensions are only temporary.
Each time Turnage has messed up a procurement or didn’t get the results he wanted mostly because of poor program planning, his solution has been re-procurement. In 2013, he procured an MCO contract. MedStar was among the companies selected; its jacked-up prices wreaked havoc on the city’s finances, according to a presentation Turnage made before the council. Further, it didn’t want to contract with existing MCOs.
Faced with the issue of an unruly contractor, Turnage re-procured that contract in 2017. MedStar decided not to bid. It continued to refuse to sign a services agreement with existing MCOs, including Amerigroup DC. By doing so, MedStar had an adverse effect on the finances of other contractors, most notably AmeriHealth Caritas of the District of Columbia.
The solution to that problem was … you guessed it: re-procure. Consequently in 2020, in the middle of a global pandemic, Turnage implemented yet another new solicitation under the guise of achieving universal contracting. The premise may have seemed sound to some until MedStar’s parent company — MedStar Health Services Inc., headed by an executive whose compensation package is nearly $7 million — decided that it would no longer honor the agreement; it announced it would terminate services to other MCOs on Nov. 21. Whether or not that was a tactic to negotiate better rates, as MedStar officials claim, the threat alone is indefensible.
Now Turnage is poised to re-procure the 2020 contract — this time, he says, because he wants to add in mental health and substance abuse services. It’s all subterfuge, covering the inability of a senior manager and his boss Mayor Bowser to design an effective Medicaid managed care program.
What happens next? If history is any indication, then get ready for the next MCO debacle.
Grab the popcorn!
This post has been updated to include a link to Amerigroup DC’s latest complaint and to correct a reference to the timing of the filing.
jonetta rose barras is an author and freelance journalist, covering national and local issues including politics, childhood trauma, public education, economic development and urban public policies. She can be reached at thebarrasreport@gmail.com.
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