Patrick B. McGuigan – Southwest Ledger
OKLAHOMA CITY– In Mid-March, a trio of attorneys defended, in a reply brief on behalf of the Oklahoma Health Care Authority (OHCA), Oklahoma’s managed care plan for Medicaid Expansion.
The team, under the leadership of former U.S. Attorney Robert G. McCampbell, argued in pointed and efficient ways to favor the OHCA plan to contract with four health care entities.
The plan announced in late January would carry through on Governor Kevin Stitt’s announced intention to bring into practice the expansion of Medicaid voters approved in a historic ballot initiative last year.
(The program was broadly summarized in this series’ originating installment, “Starting to get down in the weeds,” March 11.
McCampbell’s cadre wove together a listing of precedents and long-standing state agency practices to bolster the Stitt-OHCA vision.
Docs on the Attack
Their work – submitted at the state Supreme Court at the Ides of March (the fifteenth) – was in reply to a legal brief advancing a “petition for declaratory relief” filed February 11 on behalf of the Oklahoma State Medical Association (OSMA) and state Dental and Osteopathic associations, the state Society of Anesthesiologists and the Oklahoma Chapter of the American Academy of Pediatrics.
As detailed in the second installment of this series (“Analyzing and Stirring the Pot: The fight over Managed Care for Medicaid Expansion is serious business,” March 18, the aforementioned groups consider the Stitt-OHCA plan a “Health Care Holdup.”
Although courts at all levels of American government can sometimes indeed craft judicious and nuanced results, in this matter the state High Court is being asked to declare every jot and tittle of the Managed Care framework null and void.
In a critical reading, the OMSA-led lawsuit’s central charge seemed to be that the Stitt-OHCA plan must fall because it is an example of NIH (“not invented here,” i.e. at OSMA offices).
The McCampbell reply brief rebutted the foregoing assembly of power with references to case law, state constitutional strictures, standard administrative practices, state and federal statutes and other citations to support the state executive’s assertions in late January, and since that time.
A Lawyerly Reply Brief
In sum, countering the tag team of power-players who assailed the Stitt plan from the first moment, McCampbell’s submission documented the ways Oklahoma’s Legislature “has granted clear authority to the OHCA.”
To the extent the OHCA vision for Managed Care is a work in progress (and must remain so because any plans will in any case still be subject to federal approvals), McCampbell said there is no requirement for the Legislature to have set forth all program details before the state can move into developing program details to meet the new requirement for Medicaid Expansion.
Further, the agency has long-standing practices utilizing versions of managed care, as the McCampbell brief documents.
In the pro-managed-care presentation, new rules are not required for an emergent program rooted in existing law and, in any case, no one is (as critics asserted) “compelled” to enroll in the state Medicaid program.
This craftsmanship came in response to the OSMA lawsuit that hit Feb. 11, in the form of a comprehensive assault on the framework of OHCA’s power in existing state law.
Although (in File #119357) the OMSA frequently acknowledged the existence of statutory language allowing OHCA to “study the feasibility” of managed care — and to devise standard health care benefits packages and enter into contracts — and acknowledged the existence of “incidental powers” for the agency, the ubiquitous word “however” argued against actual use of any of those things.
McCampbell’s reply brief quoted directly from statutory language pointing to OHCA’s responsibility “for converting the present system of delivery of the Oklahoma Medicaid Program to a managed care system.”
The envisioned SoonerSelect program comes from this background, quoting the reply brief:
“Under the federal Medicaid laws, states may offer Medicaid benefits on a fee-for-service basis, through managed care plans, or both.”
Managed care systems are “subject to the approval of the Centers for Medicare and Medicaid Services (CMS)” under federal law.
As the McCampbell argument drives home, “Nationally, 40 states used capitated manage care plans to deliver Medicaid services as of July 2019, and 60 [percent] of all Medicaid beneficiaries received care through comprehensive risk based MCOs” [Managed Care Organizations].”
Nonetheless, there is much sound and fury, signifying something, as the Stitt-OHCA plan seeks to advance.
A couple of “live rounds” have reached the Legislature’s upper chamber, most notably House Resolution 91.
The measure from state Rep. Carol Bush, R-Tulsa, passed comfortably in the House of Representatives, but that is not necessarily indicative of its ultimate fate in the Senate. Time will tell.
The Bush Bill seeks to require a number of steps from the Oklahoma Health Care Authority that would, in the view of critics, erode executive authority and effective use of existing powers at the agency charged with administering much of the state’s health care system.
Kim David makes the case
State Senator Kim David, R-Porter, is the Majority Floor Leader.
As the clashing rhetoric over the OHCA plan for management of Medicaid expansion intensifies, she offered some context in an exchange with this reporter.
Sen. David reflected that this year as a result of voter-approved expansion, “Medicaid will be available to those individuals who face economic and social barriers to improve their health outcomes. Helping these Oklahomans improve their health outcomes can be accomplished through a coordinated care model by connecting more Oklahomans to educational services that teach them the benefits of healthier behaviors and lifestyles.”
She pointed out, “Additionally, coordinated care models can help citizens connect with preventative services, including behavioral services, that can treat more serious illness and disease before it requires a much costlier trip to the emergency room. Far too many people rely on the emergency room as a primary care physician and a coordinated care model can help end this costly and less successful method of health care.”
Rob Standridge opposes Managed Care
A sharply different view of managed care comes from state Senator Rob Standridge, R-Norman, who is also Majority Whip.
In a February release, which appeared at CapitolBeatOK.com, The City Sentinel newspaper website and elsewhere, he supported in toto the OSMA’s contentions:
“I completely agree and fully support the OSMA’s efforts.”
Sen. Standridge continued, “We’ve been told that these managed care companies would somehow improve care in our state. However, a Dec. 16, 2020, study from the U.S. Government Accountability Office (GAO) reports that there are likely very serious, widespread problems with managed care plans throughout the nation, and these problems are leading to ‘injury and neglect’ of patients on Medicaid.
The Standridge narrative continued, “It is absolutely irresponsible for our state to implement such a potentially dangerous and massive change to our Medicaid system. It disregarded the legislative branch, and blatantly circumvented the constitutionally mandated appropriation process of the Senate, House and Governor.”
In interviews, defenders of the managed care ideas have criticized the methodology and other aspects of the GAO study.
Senator David affirms support
As for the lay of the land, policy-wise, Sen. David, in her own way, pointed out that 2018 is not ancient history: “Oklahomans voted for Governor Stitt to fully lead the executive branch of government. They trusted his private sector experience and vision for Oklahoma.”
She believes, further, that the state’s chief executive officer “is right to focus on improving our health outcomes by getting more Oklahomans access to preventative care and services through a care coordination model. A healthier Oklahoma is a more productive and ultimately more successful Oklahoma.”
Continuing: “Oklahoma has consistently had some of the worst health outcomes in the nation. It’s time to look at what other states have done to improve health outcomes. When you do so, you see the states seeing gains in health outcomes are moving toward privatizing care coordination.”
Care coordination for a public service — not to be confused with “privatization” of the systems of Medicaid and Medicare – “has time-and-again proven to be more flexible and innovative than the public sector. It’s time we took that lesson and applied it to the health care arena.”
Echoing outside analysts who have “gone deep” to examine the particulars of managed care models across the nation, Sen. David concluded her exchange with this writer, reflecting, “The move to a coordinated care model also will help the fiscal health of our state by helping Oklahomans improve their health outcomes and ultimately saving taxpayers money by lowering the costs of state-funded health care programs. Finally, a coordinated care model has the potential to lead to private-sector job creation, as we see an increased need for health care support staff to help Oklahomans access health educational and preventative services.”
The McCampbell reply brief made this request of the state Supreme Court, concerning the OSMA et al. lawsuit: “The Petitioners’ arguments that the Court should ignore the express language in the OHCA Act should be rejected.”
That is rather clear.
But remember, even with the “Ides” fading into memory, we are still in the time of March Madness. Clarity and precision is sometimes a matter of judgment – after a jump ball.
NOTE: This analysis first appeared at The Southwest Ledger (March 25). It is reposted here with permission.