WHEN Mayor Muriel Bowser issued her recent order declaring a “Health Care Resources Emergency,” she tore a page straight from former President Donald J. Trump’s book on how to create and exploit a crisis for personal political benefit. She proved herself willing to abuse powers vested in her office by the Home Rule Charter, casting the entire executive branch as an operation lacking ethics or integrity and willing to engage in unlawful tactics.
Most egregious, she sent a clear message that she is prepared to use vulnerable District residents as pawns in her administration’s effort to unabashedly steer a contract to a favored company — MedStar Family Choice Inc.
While the threat made by MedStar Health Systems that it will terminate all services to existing Medicaid managed care organizations (MCOs) by Nov. 21 is serious, it does not merit the emergency order. The mayor and her crew of lawless government managers — particularly Wayne Turnage, deputy mayor for health and human services — created a ruse.
One experienced DC health care advocate told me the mayor’s order is “built on a complete fiction.”
“The MCO contract with MedStar Family Choice has nothing to do with the agreement MedStar made when it signed the provider agreement that it would enter into health plans with the other MCOs. All the hospitals signed that agreement,” continued the health care advocate. “Now, both Turnage and the mayor have admitted there was some kind of quid pro quo — which seems highly illegal.
“Who is responsible for investigating public corruption in DC?” asked the advocate.
Good question. Shouldn’t the DC inspector general be in front of all of this?
When I asked Turnage for a comment via email, he declined. “My viewpoint has been sufficiently presented. As you are an ‘opinion’ writer, I will stick to the facts and leave you to your opinions,” he said.
Here is an indisputable conclusion based on the relevant facts: The mayor’s order is yet another effort to circumvent a ruling by the city’s Contract Appeals Board (CAB) that the administration violated DC laws during 2020’s $1.5 billion Medicaid managed care procurement. The decision came after Amerigroup DC, which was then an existing MCO, filed a complaint about how the contracting process was managed.
That flawed procurement resulted in the selection of AmeriHealth Caritas of DC Inc., CareFirst Blue Cross Blue Shield Community Health Plan of DC and MedStar Family Choice Inc.
The CAB, a quasi-judicial, independent agency, agreed with Amerigroup and ordered the executive to reevaluate its choices. It was expected that the lowest scoring company of the top four would be eliminated. If the reevaluation did not occur, the CAB prohibited the Bowser administration from executing any option years. That meant that all the contracts, including the one for MedStar, would end on Sept. 30.
Instead of following the CAB’s order, Bowser and Turnage have become executive branch scofflaws; they have even tried repeatedly to enlist the DC Council. They have deliberately violated multiple laws in their determination to perform an end-run around the appeals board, essentially denying Amerigroup its opportunity to fully compete.
One day after Bowser issued her order, she sent legislation to the council to extend the contract for existing MCOs, including MedStar, for nine months with the possibility of an additional three months. That violates the CAB order. What’s more, none of this addresses the termination threat by MedStar Health Systems.
Consider that in her letter to the council, the mayor specifically states that “MedStar Family Choice shall continue to provide healthcare and pharmacy services for its Managed Care Program.”
Tony Felts, a spokesperson for Amerigroup DC, said in an email to me that his company is “proud of its record of improving the health and well-being of the District’s Medicaid and [DC Healthcare] Alliance Program members.” He said Amerigroup is “disappointed” that “after a year of failed legislative attempts to retroactively favor one MCO — MedStar — the District is now unlawfully attempting to use emergency authority to favor MedStar again, this time by extending three MCO contracts to circumvent the [CAB’s] ruling.”
Felts asserted that the proposed contract extension “should not be exercised or approved.”
However, to ensure the administration’s bases are covered and MedStar remained in the game — one way or another — Turnage announced, even before the so-called emergency, that the city would “re-procure” the managed care contract. (I predicted he would do as much and urged the council to step in immediately.)
Underscoring the orchestrated and scheming nature of the executive’s actions, the timeframe Turnage set for rebidding the contract is November.
Is it a coincidence that November is the same month that MedStar Health Systems is threatening to terminate its services?
Fortunately, Council Chair Pro Tempore Kenyan McDuffie and at-large Council member Elissa Silverman are unwilling to allow the District and more than 200,000 vulnerable residents to be used by the mayor and her team or to be bullied by MedStar. In a Sept. 1 letter to DC Attorney General Karl Racine, the two legislators indicated that MedStar Health System’s threat to terminate services “raises concerns that MedStar is using its dominant market share in the District to unfairly influence Medicaid contracting.”
The termination announcement, they noted, comes “after several failed attempts to get the [council] to move emergency legislation that would include MedStar in the city’s current Medicaid contract.”
Silverman and McDuffie asked Racine to “determine whether these actions by MedStar violate the D.C. Antitrust Act of 1980 and commence legal action if appropriate to protect the District and its residents, especially the 230,000 low-income beneficiaries of the Medicaid and Alliance programs.”
The OAG spokesperson confirmed the office had received the request but declined to provide any other details. I am particularly concerned about a potential conflict since the agency has been working with the Bowser administration around the CAB’s order.
“The AG’s responsibility is to represent the District of Columbia. There are different divisions,” a staffer in Silverman’s office told me, noting that the public integrity unit would be the one dealing with any antitrust issue.
In an interview with me, Council Chairman Phil Mendelson said it’s likely that three members of the legislature will file a disapproval resolution. That would delay, at least until mid-October, approval of the legislation the mayor submitted to extend any existing contract.
“Part of what’s troubling about this is MedStar’s threat,” continued Mendelson. “What game are they playing, and how does it affect Medicaid patients?”
Ironically, the council is back where it was a year ago. Then, three legislators — McDuffie, Mendelson and at-large Council member Robert White — submitted disapproval legislation to stop the 2020 procurement, which was obviously flawed. Turnage persuaded the majority of the members to allow the CAB to determine what should happen after Amerigroup filed its complaint.
Council members heeded Turnage’s advice and allowed time to expire on the disapproval resolution. Surely more than a few of them must be regretting that decision, realizing they are dealing with a government manager who is adept at manipulation.
The council’s concerns about Medicaid recipients are legitimate. But neither the executive nor MedStar is focused on the quality of care being delivered or received. Turnage has inadvertently made clear what this fight is about — profit and loss — with his public comments about what MedStar is being paid versus what other hospitals are being paid.
Consistent with that financial motivation, it appears Bowser and Turnage have deliberately shifted away from aggressive preventive health care provided through medical homes and a network of community-based clinics to one dictated by large corporations like MedStar.
This latter issue deserves additional attention. That is for another day, however.
For now, based on Bowser’s and Turnage’s actions, there is little question that the council is at an important crossroads in its relationship with the executive.
Back in the early 1990s, there was a similar situation. Then-Mayor Sharon Pratt was bucking the legislature’s demands around contract approval.
Council Chairman John Wilson wasn’t one to buckle. The two branches went to court. The legislature won. Given what we know about contracting and procurement in the city, residents scored at least a partial victory. Who knows what would have happened over the years without the council’s oversight?
This current battle is not about how to best serve Medicaid recipients. Using existing law and Medicaid rules, the District has the legal authority — without any declaration of an emergency — to prevent MedStar from denying health care to poor and working-class residents as it has threatened, according to local health care leaders. The city also could choose to take the health care giant to court.
The question is whether the council will assert its powers. Will it stand up to MedStar?
Or will the legislature permit the executive to steer a contract in plain sight? Will it allow Bowser to circumvent a legally binding order from an independent, quasi-judicial agency? Will it allow her to continue to abuse her powers?
If the answer to those last three questions is yes, then District residents can expect to see the kind of dynamic we saw for four years at the national level in which an executive shows no respect for the other branches of government and is only interested in having its way — regardless of the law.
This article first appeared on TheDCLine.org