jonetta rose barras: DC Council wastes the public’s money and disregards residents’ health care
Late again.
DC Deputy Mayor for Health and Human Services Wayne Turnage and Chief Procurement Officer George Schutter failed to meet the noon July 28 deadline set by the DC Council to address its questions and concerns about why Mayor Muriel Bowser’s administration has not forwarded a new Medicaid managed care organization (MCO) contract to the legislature. That deadline and critical issues were detailed in a July 21 letter signed by Council Chair Phil Mendelson and at-large Council member Robert White along with three of their colleagues — Ward 1 Council member Brianne Nadeau, Ward 4 Council member Janeese Lewis George and at-large member Elissa Silverman.
The fact that Bowser and her team did not respond on time isn’t shocking: They had already missed the June 28 deadline for sending the new contract.
To be fair, Schutter, who heads the DC Office of Contracting and Procurement (OCP), finally responded to the council members on July 29. Turnage had issued a statement a few days earlier via his Twitter account. Neither said anything about the state of the new procurement that I hadn’t already mentioned in previous columns for The DC Line.
Both essentially argued that the administration’s hands have been tied by protests filed with the DC Contract Appeals Board (CAB) by two bidders. Turnage, who also serves as head of the Department of Health Care Finance (DHCF), said the “health care of District residents is not ‘hanging in the balance,’” as the council’s letter suggested. He went on to say that further action must wait until the protests are resolved: “Due to the lessons of history, DHCF did not seek the CAB’s permission to move forward.”
He should know that history better than anyone. He has been involved in each MCO contracting debacle since 2013.
Council members have only themselves to blame for the various MCO fiascos and the cavalier treatment they have received from the executive. They have allowed the mayor, Turnage and Schutter to trample over the council’s authority as a co-equal branch of government — not just once, but multiple times. Each time, legislators have rewarded the administration for its brazen disrespect and violation of the city’s procurement rules and regulations. As the most recent MCO contracting dispute has dragged on for nearly two years, the system of health care for some of the city’s most vulnerable residents has remained unstable, despite Turnage’s assertion to the contrary.
The contracting struggle became a tad messier last week: As Bowser continued to refuse to take action to deliver a new contract for the council’s review, another company entered the protest wars before the CAB. AmeriHealth Caritas District of Columbia (ACDC) filed a motion on July 26 to intervene in the protests lodged by CareFirst BlueCross BlueShield Community Health Plan and MedStar Family Choice Plan over the mayor’s serial mismanagement of the MCO procurement.
A long-standing MCO contractor and a tentative awardee of the upcoming contract, AmeriHealth has been quietly on the sidelines as the contracting fiasco played out in the public and behind closed doors. However, it understandably seems to have grown impatient. “ACDC is in line for award as one of the two remaining offerors under the RFP,” wrote Marcia Madsen and Luke Levasseur of Mayer Brown LLP, attorneys for AmeriHealth.
It’s unclear whether the CAB will allow the intervention. It surely means there will be yet another group of lawyers involved in the potential resolution of the case. Don’t ask when that might happen, especially since, once again, Bowser and her team seem content with extensions and the council can’t seem to find where it hid its power.
Consider that on June 7, preempting her previous agreement with the council, Bowser submitted legislation to extend the nearly $2 billion MCO contract, which is divided among three companies: MedStar Family Choice, CareFirst BlueCross BlueShield Community Health Plan and AmeriHealth. The current contract was first approved in 2020. It was extended in 2021, after much controversy, with the understanding that a new contract would be awarded in June 2022.
AmeriHealth and AmeriGroup DC were two of the winning bidders for the new $8 billion, five-year MCO contract; they had received tentative notification of their selection in early June.
In response to one of the council’s questions, Schutter indicated that the city “completed its source selection review and the Contracting Officer determined three anticipated awardees in May.”
MedStar Family Choice Plan was the third company that was selected, though it was technically under a separately issued solicitation. However, MedStar and CareFirst BlueCross Blue Shield filed complaints with the CAB, claiming various procedural failings. CareFirst — the bidder that wouldn’t have a piece of the new contract — has also filed an appeal in the DC Superior Court asking that it review an earlier decision by the CAB.
Reiterating Turnage’s Twitter statement and what the OCP spokesperson told me last month, Schutter said in his letter to the council that the administration did not move forward because of those outstanding protests: “The Executive is awaiting final disposition of the three MCO protests currently with the [CAB] before submitting the packages to the Council.” His office offered that advice, which City Administrator Kevin Donohue accepted.
In its letter, the council members asked why Schutter and the administration did not ask the CAB to lift the stay that prevents the execution of the contracts while the protests are in place. He acknowledged the city could have done so by asking for a “Determination and Findings (D&F) that urgent and compelling circumstances exist such that the significant interests of the District do not permit waiting for the decision of the CAB.”
But Schutter went on to say that he, Turnage, the mayor and others believed that awaiting the CAB results would “minimize disruption to the beneficiaries resulting from any possible change in provider plans.”
If those decisions were made in May or early June prior to submission of the June 7 contract-extension legislation, why didn’t Bowser and her team convey any of that to the council and the public? Perhaps the legislation itself was meant to send that message. If so, it appears no one on the council was paying attention.
That legislation sought to extend the existing contracts from July 1 through Sept. 30 at an estimated cost to the public of nearly $300 million. The holding pattern also means that, for the time being, various services like those associated with behavioral health care will not be offered through the current MCO structure.
If for no other reason, the amount of money at stake and the delay in the provision of certain services should have triggered questions by someone on the council. It didn’t.
“Not a single member brought [the extension legislation] to my attention. Not a single member raised any objection,” Mendelson told me last week during a rather contentious telephone interview.
Not even White, chair of the Committee on Government Operations and Facilities, which oversees contracting and procurement. He should have known as early as February that the procurement process was in the ditch. The administration had distributed two requests for proposals (RFP) for the same work. The majority of bidders had been disqualified for one, which prompted the second; then, there were problems with the second. Nearly everyone was outraged, filing protests and waiting for CAB rulings.
In an email to me last week, White said that he and his committee staff “had been in touch with relevant parties throughout the process and we had every indication that the MCO procurement was moving forward, and the new contracts would be forthcoming.”
Call that a CYA response. Maybe White was too caught up in his mayoral campaign to file the disapproval resolution he could have upon introduction of the June 7 legislation. Instead, he just let things ride.
Also involved in a competitive primary, Mendelson didn’t act. After all, as chair of the council, he didn’t need a member to tell him about legislation that was circulated. Further, the council rules do not require prompting from another member for him to schedule a public roundtable or call a hearing to compel the mayor to explain why she was on track to renege on an agreement that Mendelson negotiated and persuaded his colleagues to approve.
Since the council took no action to stop the mayor’s roll, the extension legislation was deemed approved on June 18. That was 10 days before the administration was expected to send the new MCO contract under last year’s agreement with the council.
Contradicting his assertion that notice of the proposed contract extensions had been circulated to everyone, Mendelson also told me he did not know they had been deemed approved. On June 27, letters were sent over his signature to Bowser informing her of that fact.
When I mentioned this, Mendelson seemed confused and asked me “What letter?” I directed him to one of the documents in the council’s electronic file, known as LIMS, where it catalogs legislation introduced and subsequent action.
He reviewed the digital document while we were on the phone. “That is my signature,“ he said.
Who is running the council? Is the unelected secretary of the council making decisions about what happens to legislation — what bills get referred to which committee, what is presented for a vote or other action? Is Mendelson even the one signing his correspondence?
He brushed those questions aside, asserting that the extension was “not as important as the permanent contract. I was focused on the five-year contract.”
He also claimed that the mayor can still send down the new contract at any time while waiting until Oct. 1 to execute it.
In an email following our telephone interview, Mendelson offered this: “I have repeatedly spoken out about the need for the contracts to come to the Council, including a July 11th press conference and discussing it at the July 12th legislative breakfast, amending the Council’s rules to explicitly deal with this, and meeting with the Mayor last week.
“It’s on the Mayor that we, once again, have this problem. I have called her on it,” he said.
In a telephone call this week after reading Schutter’s response letter, Mendelson said, “I can’t say that I’m satisfied.”
Mendelson cited a fundamental inconsistency between the executive’s position last year when it pushed through the new contracts without regard for protests filed with the CAB: “Now they have a problem with moving forward.”
Further, he said he isn’t clear whether the mayor intends to move forward after the CAB ruling or whether she intends to wait for the DC Superior Court to decide on CareFirst’s appeal. “That could be a very long time, and that’s unacceptable,” Mendelson added.
The council is supposed to be the check to the executive. Repeatedly, it seems unwilling to exercise that authority. Instead, members seem content with using the bully pulpit in a quest for rhetorical wins.
When the council provided an extension last year after finding itself in nearly this exact position, members made clear that they wanted a new contract to begin this Oct. 1.
Not only won’t that happen, but it’s also unlikely that any new contract could take full effect before the end of the calendar year. Even if the CAB were to issue a decision in the next few weeks and the court were to rule before the end of September, my sources told me, 90 days are needed to process critical government approvals and to implement the transfer of Medicaid recipients to the new MCOs. That means the mayor is likely to need a third extension.
“That’s not what I was told,” Mendelson replied during our telephone interview last week.
Raise your hand if you’re surprised that the council seems clueless and outmatched.
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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