CMS document cache #2: Responding to Senator Marty’s office

March 4, 2013

On February 27, Public Record Media (PRM) received a second cache of documents from the U.S. Department of Health and Human Services (HHS) in response to PRM’s ongoing FOIA litigation. The second document cache contains 1171 pages of records. HHS produced an initial cache of 229 documents on January 22.

PRM filed its FOIA request in this matter in February of 2012, after obtaining correspondence regarding Minnesota State Senator John Marty’s concerns about the management of Minnesota’s public health care programs. These programs bundle state and federal funds together, and disseminate them to health care providers through various non-profit managed care organizations (MCOs). Prior to the involvement of the MCOs, such funds were disbursed directly by the state.

In written correspondence with CMS (the component of HHS that is responsible for approving Medicaid funds for state-level health care programs), Senator Marty raised concerns about the possible financial mismanagement of the programs, and a resultant reduction in the quality of care. He also requested that CMS not approve the waiver under which Minnesota receives Medicaid funds, since he believed that such funds were being wasted by the state’s MCOs.

Correspondence regarding State Senator Marty
The most recent HHS document cache contains internal CMS correspondence related to the formulation of the agency’s responses to Senator Marty’s concerns.

One such document is a January 30, 2012 e-mail sent by Jennifer Sheer of CMS to Richard Jensen, director of the Division of State Demonstrations and Waivers (DSDW) within CMS. The e-mail provides a summary of Senator Marty’s correspondence with the agency, and also discusses attempts to get staff from the Minnesota Department of Human Services (DHS) to participate in a teleconference with Senator Marty and other Minnesota stakeholders. DHS disburses federal Medicaid funds to the MCOs that administer Minnesota’s public health care programs. At the time of Jennifer Sheer’s e-mail, David Godfrey was the Minnesota Medicaid Director at DHS.

Conference calls with Senator Marty; CMS summary of results
In her January 30 e-mail, Ms. Sheer provided details of two conference calls held with Senator Marty’s office and other Minnesota “stakeholders” on July 11 and August 2 of 2011. She noted that in response to concerns raised by the stakeholders, “DSDW added … language addressing the managed care bidding and contracting process” into public program annual reporting requirements.

Ms. Sheer’s e-mail noted that Senator Marty’s office followed up with CMS on September 6, 2011, and continued to express concerns about public program accountability, despite the addition of the new reporting requirements. Ms. Sheer’s e-mail then stated that during the fall of 2011, “DSDW worked with the State to try to arrange another conference call, one that would include … David Godfrey or one of his representatives … after that conversation we learned that he did not want to participate in a conference call and asked that we stop meeting with this group.”

Jennifer Sheer’s e-mail then went on to note that “Barb Jacobs reached out in November 3rd via phone to inquire about the status of a response to Sen. Marty’s 9/6 letter and the stakeholders 8/9 letter; no response was generated, pending further consideration of how best to address the situation given the State’s rejection of a joint call and that DSDW has already discussed the stakeholders areas of concern during the August 2nd call.”

Summary presented to CMS Medicaid director
Later on January 30, 2012, Richard Jensen sent an e-mail summary of the information provided by Jennifer Sheer to CMS Medicaid director Cynthia Mann and other agency staff. Mr. Jensen’s e-mail noted that,

“During the renewal negotiations for MN’s PMAP 1115 Demonstration last spring and summer, CMS received letters from several stakeholders (including Senator Marty’s May 18, 2011 letter) that expressed concerns with the management of Medicaid funds by PMAP + MCOS. These letters also expressed concern regarding quality and access … Internally, we are not aware of any complaints/concerns about access or quality, and in general MN’s MCOs are well regarded.”

Mr. Jensen’s e-mail then went on to discuss the CMS conference calls held with Minnesota stakeholders during the summer of 2011. According to the e-mail,

“We had no information, nor did the stakeholders provide any information, that supported claims they continued to make regarding mismanagement by the MCOs. As communication continued into the fall we tried to facilitate a meeting between David Godfrey and the stakeholders to discuss their concerns, but David did not see a reason for such a discussion and did not understand why we were still speaking to them.”

The e-mail then summarized the next steps taken by CMS, including the agency’s documentation of contacts from the Senator’s office. Mr. Jensen concluded his message by noting that “we do need to follow up with a response.” The following three sentences of PRM’s copy of his e-mail were redacted by HHS, with the exception of the words, “At this point I would not recommend.”

The HHS redaction is labeled as having been made pursuant to FOIA exemption 5, which protects information subject to privilege, including the “deliberative process” privilege. This privilege is intended to protect internal agency deliberations before a determination of policy has been made.

PRM will continue to review the document cache provided by HHS, and will post summaries of pertinent records as our review continues.