Sunday, August 4, 2013

State Freezes Funds and Leaves Public in the Dark

Let’s work this one out together.  Is the move by Governor Martinez to destroy several southern New Mexico mental health care providers good government or something else?

To put it another way, did Governor Martinez have to do this – or was her Administration looking for an excuse?  Score each paragraph below from 0 to 10.  Note down zero if it doesn’t at all tend to show this was a good-government move, 10 if the paragraph gives you serious pause for thought, or something in between.

The State hires an audit group, Public Consulting Group, to investigate possible fraud by the agencies, knowing that in North Carolina, Public Consulting did a similar audit and claimed $38 million in recoverable overpayments, but North Carolina’s state auditor found that the true figure was a little less than a tenth of that.

While most auditors discuss issues in detail and invite the subjects of the audit to point out facts or address possible problems, Public Consulting, according to folks here who got audited, made  no such efforts, but just came in to get files and folders without ever inviting or permitting any dialogue regarding the contents.

When the audit finishes, the State – knowing that a freeze of funds will essentially kill the mental health providers involved –  freezes funding, claiming the freeze was legally required, when in fact the federal laws and regulations gave the State discretion whether to freeze funds pending further inquiry.

Although experts would suggest that mental health, substance abuse, and suicide prevention clients might be those most in need of continuity in providers, the State determines that future needs here will be served by certain Arizona companies.

The State claims the audit (which started in mid-March, as far as one company knew, and reported a few weeks ago) requires it to engage folks from Arizona, on an emergency basis, when in fact the State had been talking with the Arizona folks as early as January, apparently well before any audit findings and perhaps before the audit even started.

The State claims that Optum Health, which had been overseeing the providers, reported the providers as fraudulent right from the start, but others say that’s not so – and point out that Optum’s own record-keeping inadequacies made Optum a nightmare to deal with and had elicited a $1 million fine a few years ago.

Although the New Mexico Public Records Act would appear to require release of the audit findings as a document of public interest, the State refuses, claiming that since it’s now turned the audit findings over to the Attorney General, the audit report is exempt as a criminal investigative report.

When the New Mexico State Auditor wants a look at the report, the State refuses; that is, the audit is good enough to destroy companies and perhaps lives over, but not solid enough to show trained and neutral eyes; and when the New Mexico judicial system orders the State to show the Auditor the report by a certain deadline, the State ignores the deadline – displaying a clean-cut scorn for legal constraints while insisting the mental health providers follow the law to the letter.

A competent, neutral examination of the detailed findings of the audit shows . . . oops, forgot.  We have no way of knowing what such an examination would show, because the State doesn’t think we’re grown up enough to have a look for ourselves.

If you’re scoring home, it can’t look too good for those of us looking for good government.

Many people are appalled.  When I ask folks about this situation, they reply with words like “hit” and “rape” and “scary.”

I don’t know how it’ll all turn out, or how it should.  

I do know that, to keep payroll going, Roque Garcia put up $50,000 he can’t well afford to lose.

However, it may turn out that his group and some or all of the others have been stealing.

But if the audit and funding freeze were righteous, why is the State so unwilling to show us so?  Can’t be fear that the mental health providers will have a better defense, because if the facts were so unmistakably damning, letting opposing lawyers see those facts today instead of next month oughtn’t to make much difference in the ultimate result.

Of course, too, given scarcity of funds, the State could reasonably have guessed that any providers which were wronged wouldn’t have enough chips to say in the game another round.  How can folks who can’t keep their doors open pay lawyers to do a top-notch job seeking justice for them?

I can’t help guessing that that disparity of resources played a role here.  Susana and Sidonie can spend your money and mine lawyering this for a decade.  They likely figure Roque and the others can’t.

These things touch our lives, sometimes deeply.  I don’t want to see this end without a full hearing.  Not only the mental health providers but you and I deserve to see this one well-lawyered on both sides.  If we were being taken, we deserve to know that.  If this is all a political attack, with very little real justification, we deserve to know that too.

Meanwhile, the providers have asked the Tenth Circuit U.S. Court of Appeal to enjoin the State from freezing funds pending some showing of justification.  The State is due to respond before this column appears.

[The column above appeared in the Las Cruces Sun-News this morning, 4 August 2013.]
        In case the column doesn't make this clear enough: I'm not saying the mental health providers aren't guilty.  I have no idea.  Some or all may be guilty of intentional fraud.  Some or all may be guilty of the kind of negligence and confusion in billing that amount to inaccuracies warranting some refund to the public coffers but not worth driving 'em out of existence.  Or maybe none are guilty of anything.
        Even the fact that the existing precedent (the North Carolina audit done by the same Boston consultant that got whittled down to less than 10 per cent of the claimed over-payments once the state auditor got a look at it) doesn't mean the same will happen here.
       What concerns me is the high-handed process.  What concerns me is the refusal to be reasonably frank with the public or even the New Mexico State Auditor.  What concerns me is the irregularities already apparent in the state government's conduct in this matter -- and its apparent refusal to follow the orders of a New Mexico court order mandating disclosure to the auditor.  
       Maybe everything the Martinez Administration did will turn out to have been justified; but if so, we deserve to know that.   (Unfortunately the spokesperson for the Department hasn't yet gotten back to me, so I can't even add in here the Department's best responses to some of the questions suggested in the column.)

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