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Darkness Surrounds MCO Mergers: Are Closed Meetings for MCOs Legal?

Recently, Eastpointe Human Services’ board voted unanimously to consolidate with Cardinal Innovations Healthcare, which would make the merged entity the managed care organization (MCO) overseeing 1/3 of NC’s Medicaid, behavioral health services – 32 counties, in all.

The Board’s decision is subject to the approval of the Secretary, but Eastpointe hopes to consolidate by July 1st.

Whether a consolidation between Eastpointe and Cardinal is good for Medicaid recipients and/or our community, I have no opinion.

But the reason that I have no opinion is because the negotiations, which all deal with public funds, have occurred behind closed doors.

Generally, it is our public policy that public bodies’ actions are to be conducted openly. This is why you can stroll on over to our courthouse and watch, virtually, any case be conducted.  There are rare cases in which the court will “seal” or close the record, such as to protect privileged health information or the identity of children.  Our public policy that strongly encourages open sessions for public entities exists for good reason.  As tax payers, we expect full disclosure and transparency as to how our tax dollars are being used.  In a way, all tax paying NC residents are shareholders of NC.  Those who spend our tax dollars owe us a fiduciary duty to manage our tax dollars in a reasonable and responsible manner, and we should be able to attend all board meetings and review all meeting minutes. The MCOs are the agents of the single state entity, Department of Health and Human Services (DHHS), charged with managing behavioral health care for the Medicaid and state-funded population suffering with mental health/developmentally disabled /substance abuse (MR/DD/SA) issues.  As an agent of the state, MCOs are public entities.

But, as I am researching the internet in search of Eastpointe and Cardinal board meeting minutes, I realize that the MCOs are initiating closed meetings and quoting N.C. Gen. Stat. § 143-318.11, ” Closed sessions” as the  basis for being able to conduct closed sessions.  And the number of closed sessions that I notice is not a small number.

The deliberations of a merger between two MCOs are highly important to the public. The public needs to know whether the board members are concerned about improving quality and quantity of care. Whether the deliberations surround a more inclusive provider network and providing more services to those in need. Whether the deliberations consider using public funds to create playgrounds or to fund more services for the developmentally disabled. Or are the board members more concerned with which executives will remain employed and what salaried are to be compensated?

You’ve heard of the saying, “Give him an inch and he’ll take a mile?”  This is what is going through my mind as I review the statute allowing public bodies to hold closed sessions.  Is the statute too open-ended? Is the closed session statute a legal mishandling that unintentionally, and against public policy, allows public meetings to act privately? Or are the MCOs misusing the closed session statute?

So I ask myself the following:

1. Is N.C. Gen. Stat. § 143-318.11 applicable to MCOs, or, in other words, can the MCOs conduct closed sessions? and, if the answer to #1 is yes, then

2. Are the MCOs overusing or misusing its ability to hold closed sessions? If the answer to #3 is yes, then

3. What can be done?

These are the three questions I will address in this blog.

Number one:

Is N.C. Gen. Stat. § 143-318.11 applicable to MCOs, or, in other words, can the MCOs conduct closed sessions?

According to the statute, “”public body” means any elected or appointed authority, board, commission, committee, council, or other body of the State, or of one or more counties, cities, school administrative units, constituent institutions of The University of North Carolina, or other political subdivisions or public corporations in the State that (i) is composed of two or more members and (ii) exercises or is authorized to exercise a legislative, policy-making, quasi-judicial, administrative, or advisory function.”

The MCOs are bodies or agents of the state that are composed of more than 2 members and exercises or is authorized to exercise administrative or advisory functions to the extent allowed by the Waivers.

I determine that, in my opinion, N.C. Gen. Stat. § 143-318.11 is applicable to the MCOs, so I move on to my next question…

Number two:

 Are the MCOs overusing or misusing its ability to hold closed sessions?

As public policy dictates that public bodies act openly, there are enumerated, statutory reasons that a public body may hold a closed session.

A public body may hold a closed session only when a closed session is required:

  1. “To prevent the disclosure of information that is privileged or confidential pursuant to the law of this State or of the United States, or not considered a public record within the meaning of Chapter 132 of the General Statutes.
  2. To prevent the premature disclosure of an honorary degree, scholarship, prize, or similar award.
  3. To consult with an attorney employed or retained by the public body in order to preserve the attorney-client privilege between the attorney and the public body, which privilege is hereby acknowledged. General policy matters may not be discussed in a closed session and nothing herein shall be construed to permit a public body to close a meeting that otherwise would be open merely because an attorney employed or retained by the public body is a participant. The public body may consider and give instructions to an attorney concerning the handling or settlement of a claim, judicial action, mediation, arbitration, or administrative procedure. If the public body has approved or considered a settlement, other than a malpractice settlement by or on behalf of a hospital, in closed session, the terms of that settlement shall be reported to the public body and entered into its minutes as soon as possible within a reasonable time after the settlement is concluded.
  4. To discuss matters relating to the location or expansion of industries or other businesses in the area served by the public body, including agreement on a tentative list of economic development incentives that may be offered by the public body in negotiations, or to discuss matters relating to military installation closure or realignment. Any action approving the signing of an economic development contract or commitment, or the action authorizing the payment of economic development expenditures, shall be taken in an open session.
  5. To establish, or to instruct the public body’s staff or negotiating agents concerning the position to be taken by or on behalf of the public body in negotiating (i) the price and other material terms of a contract or proposed contract for the acquisition of real property by purchase, option, exchange, or lease; or (ii) the amount of compensation and other material terms of an employment contract or proposed employment contract.
  6. To consider the qualifications, competence, performance, character, fitness, conditions of appointment, or conditions of initial employment of an individual public officer or employee or prospective public officer or employee; or to hear or investigate a complaint, charge, or grievance by or against an individual public officer or employee. General personnel policy issues may not be considered in a closed session. A public body may not consider the qualifications, competence, performance, character, fitness, appointment, or removal of a member of the public body or another body and may not consider or fill a vacancy among its own membership except in an open meeting. Final action making an appointment or discharge or removal by a public body having final authority for the appointment or discharge or removal shall be taken in an open meeting.
  7. To plan, conduct, or hear reports concerning investigations of alleged criminal misconduct.
  8. To formulate plans by a local board of education relating to emergency response to incidents of school violence or to formulate and adopt the school safety components of school improvement plans by a local board of education or a school improvement team.
  9. To discuss and take action regarding plans to protect public safety as it relates to existing or potential terrorist activity and to receive briefings by staff members, legal counsel, or law enforcement or emergency service officials concerning actions taken or to be taken to respond to such activity.”

Option 1 clearly applies, in part, to privileged health information (PHI) and such.  So I would not expect that little Jimmy’s Medicaid ID would be part of the board meeting issues, and, thus, not included in the minutes, unless his Medicaid ID was discussed in a closed session.

I cannot fathom that Option 2 would ever be applicable, but who knows?  Maybe Alliance will start giving out prizes…

I would assume that Option 3 is used most frequently.  But notice:

“General policy matters may not be discussed in a closed session and nothing herein shall be construed to permit a public body to close a meeting that otherwise would be open merely because an attorney employed or retained by the public body is a participant.”

Which means that: (1) the closed session may only be used to talk about specific legal strategies and not general policies.  For example, arguably, an MCO could hold a closed session to consult with its attorney whether to appeal a specific case, but not to discuss whether, generally, the MCO intends to appeal all unsuccessful cases.

and

(2) the MCO cannot call for a closed session “on the fly” and only because its attorney happens to be participating in the board meeting.

As I am rifling through random board meeting minutes, I notice the MCO’s attorney is always present.  Now, I say “always,” but did not review all MCO meeting minutes. There may very well be board meetings at which  the attorneys don’t attend. However, the attorney is present for the minutes that I reviewed.

Which begs the question…Are the MCOs properly using the closed sessions?

Then I look at Options 4, and 5, and 6, and 7, and 8, and 9…and I realize, Geez, according to one’s interpretation, the statute may or may not allow almost everything behind closed doors. (Well, maybe not 9).  But, seriously, depending on the way in which each Option is interpreted, there is an argument that almost anything can be a closed session.

Want to hold a closed session to discuss why the CEO should receive a salary of $400,000? N.C. Gen. Stat. § 143-318.11(5)(ii).

Want hold a closed session to discuss the anonymous tip claim that provider X is committing Medicaid fraud? N.C. Gen. Stat. § 143-318.11(7).

Want to hold a closed session to discuss how an MCO can position itself to take over the world? N.C. Gen. Stat. § 143-318.11(4).

In an atmosphere in which there is little to no supervision of the actions of the MCOs, who is monitoring whether the MCOs are overusing or misusing closed sessions?

Number three:

What can you do if you think that an MCO is holding closed sessions over and above what is allowed by N.C. Gen. Stat. § 143-318.11?

According to N.C. Gen. Stat. § 143-318.16A, “[a]ny person may institute a suit in the superior court requesting the entry of a judgment declaring that any action of a public body was taken, considered, discussed, or deliberated in violation of this Article. Upon such a finding, the court may declare any such action null and void. Any person may seek such a declaratory judgment, and the plaintiff need not allege or prove special damage different from that suffered by the public at large.”

Plus, according to N.C. Gen. Stat. § 143-318.16A, “[w]hen an action is brought pursuant to G.S. 143-318.16 or G.S. 143-318.16A, the court may make written findings specifying the prevailing party or parties, and may award the prevailing party or parties a reasonable attorney’s fee, to be taxed against the losing party or parties as part of the costs. The court may order that all or any portion of any fee as assessed be paid personally by any individual member or members of the public body found by the court to have knowingly or intentionally committed the violation; provided, that no order against any individual member shall issue in any case where the public body or that individual member seeks the advice of an attorney, and such advice is followed.”

 In sum, if you believe that an MCO is conducting a closed session for a reason not enumerated above, then you can institute a lawsuit and request attorneys’ fees if you are successful in showing that the MCO knowingly or intentionally committed the violation.

We should also appeal to the General Assembly to revise, statutorily, more narrowly drafted closed session exceptions.

Wanted: North Carolina Medicaid Director: Transparent and Open!

With Carol Steckel’s abrupt resignation September 27, 2013, only 8 months after accepting the job as NC Medicaid Director, we North Carolinians were left without a Medicaid Director.  I posted a week or so ago that I can only imagine how difficult it would be to fill the position, considering the absolute mess the Department of Health and Human Services (DHHS) has created recently…the calamity of NCTracks…the negative PR…the high salaries of administration…Who would want to inherit this mess???

While I cannot imagine the person who would actually apply to be our Medicaid Director in the midst of such storms, I do have some advice for whomever attempts to carry the burden of being NC’s Medicaid Director. 

I don’t know why Ms. Steckel left.  I’ve heard numerous hypotheses.  I’ve heard that she didn’t get along with Sect. Wos.  I’ve heard that she left because the NC Medicaid system cannot be fixed.  I’ve heard the bad media press upset her.  I’ve heard she couldn’t handle the scrutiny of the public.

Regardless, anyone who is thinking of applying to be our Medicaid Director needs to understand that this is a public servant job.  This is not a private sector job.  Why is that important?  Because as an officer in the public arena, you are accountable to the taxpayers.  You cannot hide behind rhetoric or stop speaking to media.  As a public servant, you have duty to be transparent to taxpayers.  You will be scrutinized by the public…and this is allowed.

Recently, Secretary Wos responded with this comment when asked about transparency… “I think the word transparency can get pretty dangerous. … If transparency means that we’re in a planning process and you’re asking us, ‘Tell us all the things you’re planning,’ well, my goodness, allow us to work, and then we’ll give you everything that you want.”

While I understand Sect. Wos’ assertion that if all we do is talk then nothing gets done, in the public sector, transparency is, not only desired by taxpayers, but public servants owe a duty to be transparent.  Public servants are not spending their own money.  It’s my money and your money.  We deserve to know how our money is being spent and we deserve to have an opinion as to whether our money is being spent in an economically intelligent fashion.

For example, my blog about the managed care organizations paying the health insurance for its employees and the employees’ families was to point out that our tax dollars are paying for these employees’ families’ health insurance…tax dollars that are meant to provide health insurance to our most needy population.

Similarly, all the media hype about the high salaries of the two 24-year-old staffers, who were given salaries making $85,000 or more, the media are angered because, again, those salaries are paid by us.

Because the money that the Department of Health and Human Services (DHHS) spends is our money, not private funds, transparency is essential. 

A few weeks ago, when I flew to New Mexico, I had to go through airport security.  I had to take off my shoes (yuck! and walk on the airport floor), place my purse and laptop on the conveyor belt and step into the “All-Seeing Machine.”  You know, the machine that you have to place your feet a little apart and raise your hands above your head, while the machine whirls around your body.  I always feel slightly mortified every time I have to go through that machine.  I even suck in my breathe a little so my belly doesn’t poke out.  It is just a strange feeling to have a stranger look that closely at you and scrutinize your body.  You never know what the person looking at your image is thinking.  Being scrutinized is not fun.

Similarly, as NC Medicaid Director, and a public servant, you will be scrutinized.  Every word.  Every action…and non-action.

Remember Mary Poppins?  Remember the sweet, little song the two children sang about the criteria for their new nanny?

If you want this choice position
Have a cheery disposition
Rosy cheeks, no warts!
Play games, all sort

You must be kind, you must be witty
Very sweet and fairly pretty
Take us on outings, give us treats
Sing songs, bring sweets

Never be cross or cruel
Never give us castor oil or gruel
Love us as a son and daughter
And never smell of barley water…

Well it applies to the Medicaid Director position too.  Here is the “Perfect NC Medicaid Director Song:”

If you want this choice position
Have an open disposition
Know Medicaid laws and rules
Don’t treat media as fools
 
You must be strong, you must be smart
Very tenacious, open heart
Take on naysayers, show guts
Move our Agency out of ruts
 
Be transparent, don’t circumvent
Never say to media, “No comment.” 
Love our citizens; our state
And always, always update…

I found the job posting for our Medicaid Director on the National Association of Medicaid Directors’ (NAMD) website.

Here it is:

DIRECTOR OF MEDICAL ASSISTANCE

The North Carolina Department of Health and Human Services (DHHS), in collaboration with our partners, protects the health and safety of all North Carolinians and provides essential human services.

Within DHHS, the Division of Medical Assistance (DMA) provides access to high quality, medically necessary health care for eligible North Carolina residents through cost-effective purchasing of health care services and products. The Department of Health and Human Services and DMA are devoted to quality customer service.

The Director of Medicaid directs the administration of the state’s Medicaid and NC Health Choice Programs. The Medicaid program serves more that 1.7 million North Carolinians and provides services to children, the elderly, the blind, the disabled and those eligible to receive federally funded assisted income maintenance payments. The North Carolina Health Choice (NCHC) Health Insurance Program for Children is a comprehensive health coverage program for low-income children. The goal of NCHC is to reduce the number of uninsured children in the State. The program focus is on families who make too much income to qualify for Medicaid but not enough to afford private or employer-sponsored health insurance.

DMA has approximately 400 employees and a budget impact of 14 billion dollars which includes 3.8 billion in state appropriations. DMA partners with over 78,000 physician providers throughout the state to provide essential services to recipients. The Director is responsible for multi-million dollar contracts and performs an array of fiscal agent and administrative services which include cost reimbursement and integrated payment management reporting to local management entities (area mental health programs). The position manages the state waiver program and demonstration projects. The Director is the primary interface with the Federal Centers for Medicare and Medicaid Services (CMS) and for the Committee Management Office. (CMO)

KNOWLEDGE, SKILLS AND ABILITIES:

Prior leadership and policy role in large complex organization administering the Medicaid Program or within a Medicaid Reimbursement or Health Insurance Agency
Demonstrated knowledge of the federal and state funding process for Medicaid and Medicare
Proven ability to build consensus among diverse stake holders which includes constituents, providers, advocacy groups, the media, the public and the legislature
Demonstrated ability to provide leadership during a time of change or reorganization

MINIMUM EDUCATION AND EXPERIENCE REQUIREMENTS:

A Masters Degree in Business, Public Health, Health Administration, Social or Clinical Science or a related field and six years of broad management experience in Health Administration or in Healthcare financial management of which at least three years must be at the Director or Assistant Director level of a statewide or federal division in Health Administration or Financial Management.

To be considered for this opportunity please submit a detailed resume to alma.troutman@dhhs.nc.gov

To learn more about the North Carolina Department of Health and Human Services, please visit our web site at: www.ncdhhs.gov

All applications will remain confidential.
Equal Opportunity Employer

Nowhere in the advertisement for the NC Medicaid Director does it say what the Medicaid Director ACTUALLY has to do in real life.

Undergo scrutiny.  Talk to the public.  Maintain transparency. Be a public figure in a time of crisis.

It’s our money.  So talk to us.