Lawyers for Gov. Susana Martinez’s administration have asked a judge to determine who disclosed details of private talks that were held to try to settle a series of lawsuits that allege wrongdoing in the administration’s 2013 shake-up of behavioral health care services.
The Human Services Department cut off Medicaid funding to 15 providers of addiction and other behavioral health care services because of alleged overbilling and fraud, and 10 of the providers filed lawsuits alleging violations of their due-process rights. Mediation sessions were held in January between the department and the providers.
The department asked a state District Court judge to toss out claims by any provider “found to have divulged confidential mediation communications” to state Senate President Pro Tem Mary Kay Papen, D-Las Cruces, and to The Santa Fe New Mexican.
“One or more Plaintiffs purposely divulged details of the offers exchanged by the parties to a local newspaper reporter and leaked the nature of the offers exchanged to a state senator,” reads the state’s Feb. 14 motion filed by the Albuquerque law firm of Conklin, Woodcock & Ziegler. “These actions were strategically done to undermine the integrity of the mediation process and destroy any faith Defendants had in Plaintiffs’ ability to keep their word, which will significantly hamper the parties’ ability to resolve this case in the future.”
In a related development Monday, the state Senate passed a bill sponsored by Papen that would create more avenues for behavioral health care companies to dispute allegations of Medicaid fraud and overbilling.
The legislation and legal dispute have roots in the Martinez administration’s June 2013 announcement that an audit found credible allegations that the 15 behavioral health care providers committed up to $36 million in Medicaid overbilling and fraud. The administration brought in five Arizona companies to take over the New Mexico companies’ services pending criminal investigations.
However, the state Attorney General’s Office — saying its investigators could find no fraud — cleared all of the New Mexico companies of criminal wrongdoing.
Citing the 2013 audit, the Human Services Department continues to argue that the companies owe money for overcharging Medicaid. The state is asking for many of the companies to repay hundreds of thousands of dollars.
The department and the providers who have filed lawsuits held mediation sessions Jan. 9 and 10 at the Albuquerque law firm Madison, Mroz, Steinman & Dekleva . On Jan. 13, at a meeting of the Legislative Finance Committee, Papen asked Human Services Secretary Brent Earnest about settlements the state offered the 10 companies. Papen said the state’s reported settlement offers sounded like a “failure to negotiate in good faith.”
The New Mexican on Jan. 15 published an article citing an unnamed source who attended the mediation sessions. The report said state officials were using the $12 million the state owes the providers as leverage to settle on the separate matter of how much the providers owed the state Medicaid in overpayments.
In a Jan. 13 email, Christopher Collins, the Human Services Department’s top lawyer, forwarded The New Mexican’s questions for the article to Bryan Davis and Dooley Gilchrist, two Albuquerque lawyers representing seven behavioral health care companies.
“Client control is your responsibility,” Collins said in the email.
But the two lawyers had said they were not aware of their clients disclosing confidential information.
“If you guys want to continue to talk in good faith, as we have done, you know where to find us,” Gilchrist wrote to Collins. “If you want to make some other unfounded attack, though, please just go yell it at the wall.”
Kyler Nerison, spokesman for the Human Services Department, did not answer questions Monday about the motion for sanctions for the alleged leaks, but he said the state had collected $4 million stemming from the 2013 audit and that the state will continue attempts to recoup money from the behavioral health care companies.
Knicole Emanuel, a North Carolina lawyer for three of the behavioral health care companies, would not comment on the state’s motions for sanctions. But in a message on Monday, Emanuel wrote that, “We never signed a confidentiality agreement” for the mediation sessions in January.
At the mediation, Bill Madison, who charged $325 an hour to serve as a mediator, “repeatedly reminded Defendants’ representatives that this was a confidential mediation and represented that he gave the same reminders to all Plaintiffs,” reads the motion for sanctions.
The department did not appreciate the attempt to use the “legislature to strong-arm us or embarrass us,” Collins wrote to the behavioral health care companies’ lawyers.
“Given your clients [sic] lack of trustworthiness, and refusal to abide by the rules, we do not intend to counter your offer below at the time,” Collins wrote.
Collins, in an email sent just before midnight Jan. 13, requested that lawyers for the behavioral health care companies “identify the source or sources of your leak” so the state “can deal with that party individually.”
“If your clients collectively are going to tolerate and ignore this behavior, yes, they will be held collectively responsible,” Collins said.
Justin Horwath can be reached at 505-986-3017 or email@example.com.