DC Council chair to Bowser: ‘No legal authority’ for Medicaid move

As D.C.’s mayor and council continue to battle over the extension of Medicaid benefits for more than a quarter-million people, the chairman of the D.C. Council has told Mayor Muriel Bowser that her emergency action last week was outside the bounds of her power, and suggested another way to keep medical services accessible for vulnerable District residents.

In an emergency declaration earlier this month, Bowser awarded three contracts for Medicaid services to its current providers, including a nine-month extension for MedStar Health — whose current contract is set to expire at the end of this month, and whose new $3 billion contract was nullified by a judge last year.

Under the law, the contracts the mayor entered into would go into effect after 10 days unless the council issued a “resolution of disapproval” questioning the legality of the contracts. On Sept. 10, they did just that, extending their review period from 10 days to 45 — which takes it past the expiration date of MedStar Health’s current contract runs out Sept. 30.

‘No legal authority’

Chairman Phil Mendelson told Bowser in the letter this week that the council’s disapproval saved the District from legal action, because her contract offer went directly against a judge’s order and made the city vulnerable to a lawsuit.

“The Council’s general counsel has advised that there is no legal authority … that would give the executive the power to circumvent the [judge’s] decision,” Mendelson wrote.

“Had the disapproval resolution not been introduced and the 10-day review period lapsed, any action by the executive to execute those contracts during the public emergency would have been legally questionable, and surely would be the subject of litigation” by one of the other companies who had bid on the $3 billion contract, he wrote.

Mendelson suggested Bowser complete the review ordered by the judge, and in the meantime, negotiate a 90-day contract under the same terms as MedStar’s current contract. (“It is reasonable” that MedStar could be the one to win that contract, Mendelson wrote.) That contract could have two options to extend another 90 days. Mendelson said he would introduce emergency legislation at the council’s next meeting, Oct. 5, retroactively approving the contract.

That way, Mendelson wrote, the District gets the same nine months of Medicaid contracts as in Bowser’s emergency order, but in a way that Mendelson called “sound legally and procedurally.”

“Alternatively,” Mendelson wrote, “the Executive could proceed under the extralegal authority it has given itself, and likely lose in court.”

Antitrust investigation

It’s the latest step in a long wrangle over medical care for vulnerable people in the District.

The judge, with the Contract Appeals Board, nullified the $3 billion contract with MedStar in December, citing a failure of the health care company to meet the requirements to win the bid.

After Bowser issued her emergency declaration earlier this month, MedStar Health said in a statement, “We are pleased that Mayor Bowser’s administration has taken steps to protect the health delivery system for the District’s 250,000 Medicaid recipients who rely on public health insurance,” adding that the company “properly followed all directions given by the District government during the procurement process” that resulted in the judge’s order and

Last month, Deputy Mayor Wayne Turnage confirmed that MedStar alerted other subcontractors that it would not serve any Medicaid patients outside a hospital. Attorney General Karl Racine is investigating those actions as to whether they violate anti-trust laws.

“Basically what Medstar is saying is that, ‘Unless the District gives us the contract for our Medicaid insurance provider, we’re not going to play ball with the District and its other Medicaid contractors. So we’re going to refuse to serve Medicaid patients unless we get this big contract worth lots of money,’” At-Large Council Member Elissa Silverman told WTOP earlier this month.

WTOP’s Megan Cloherty contributed to this report.

Rick Massimo

Rick Massimo came to WTOP, and to Washington, in 2012 after having lived in Providence, R.I., since he was a child. He went to George Washington University as an undergraduate and is regularly surprised at the changes to the city since that faraway time.

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