Allen Park Retirees Get 2nd Chance At Lawsuit Over Healthcare Benefit Changes
The Allen Park Retirees Association will get a second chance at pursuing its lawsuit against the city alleging retirees’ healthcare was improperly changed.
The Michigan Court of Appeals held it “makes little sense” to consider if the trial court erred when it dismissed APRA’s suit since a recent Michigan Supreme Court decision altered its argument, according to an opinion published Aug. 13 from Judges David H. Sawyer and Mark J. Cavanagh. Judge Deborah A. Servitto concurred in the result only.
“We prefer to have the trial court analyze the issue in the first instance,” the court’s opinion noted. “Accordingly, the better route is to reverse the trial court’s decision granting summary disposition to the city and remand the matter for reconsideration in light of the Supreme Court’s decision” in Kendzierski v. Macomb County.
The trial court also erred in relying on res judicata and collateral estoppel—which essentially prevents re-litigation of an issue—in dismissing the case, and on remand is to reconsider APRA’s motion to amend their complaint.
And, the trial court is not to consider former emergency manager Joyce Parker’s 2013 order that altered retirees’ healthcare because it is no longer in effect, the appeals court said.
The APRA sued in Ingham County Circuit Court in November 2013, arguing the state, through the emergency manager, terminated all health insurance contracts for retirees that were bargained for by their unions. They also alleged the city imposed higher-cost health insurance and increased yearly deductibles from “little or no cost” to the “$500 to $1,000” range.
Allegations against the state and Department of Treasury were transferred to the Court of Claims, where a judge dismissed the case in favor of the state while allegations against Allen Park and Parker were moved to Wayne County Circuit Court.
The Wayne County trial court dismissed Parker from the case—a decision the appeals court affirmed, agreeing with her argument that claims against her are moot since she is no longer the emergency manager.
Parker also argued that her order implementing changes in retirees’ healthcare terminated in January 2017 when the city’s receivership ended.
The city claims the health care modifications remain in effect.
The appeals court said state statute authorized the emergency manager with “temporary rejection, modification, or termination” of existing collective bargaining units, and any “continuing modification…is the product of city action, not that of the emergency manager.”
Michigan Dems Push Capping Co-Pays On Insulin For Residents
Michigan House Democrats introduced legislation capping the rates health insurers can charge their patients for insulin prescriptions.
House Bill 4701, introduced by State Rep. Sara Cambensy, D-Marquette, and co-sponsored by 27 other House Democrats, would cap the amount an insured Michigan resident is required to pay for prescription insulin at $100 per 30-day supply, regardless of the amount or type of insulin needed to fill the prescription.
Another bill sponsored by Rep. John Chirkun, D-Roseville, and Cambensy would require the Michigan Attorney General to investigate and issue a report on insulin pricing practices and policy recommendations for preventing overpricing.
The effort to cap prescription insulin co-pays is based off of a policy signed into law in Colorado earlier this year, Cambensy said, adding that similar legislation has been introduced in 11 other states.
Cambensy, who is a Type 1 diabetic, said she’s experienced paying high costs for insulin, even when covered by insurance. She said costs have increased, and people should not be forced to choose between skipping or reducing dosages for lack of money.
In a statement, Michigan Association of Health Plans executive director Dominick Pallone said MAHP opposes House Bill 4701, and said it “would enact cost-shifting requirements that would ultimately result in higher insurance costs for all.”
Pallone said the group does support Cambensy and Chirkun’s other bill, House Bill 4702, noting an investigation would help address the root issue of the rising costs of pharmaceuticals.
“MAHP has been strongly backing efforts to increase pharmaceutical pricing transparency, a first step in examining this vital issue,” he said in the statement. “We believe transparency will lead to reduced drug costs, and would actually result in lower pharmaceutical and insurance costs for all of Michigan, instead of the cost shifting approach of HB 4701, which means higher prices for health insurance overall.”
According to the American Diabetes Association, more than 30 million Americans have diabetes, and about 7.4 million of them depend on insulin.
West Michigan Health Provider Sues DHHS Over Contract Cancellation
A West Michigan prepaid in-patient health plan (PIHP) provider that administers mental health services is suing the Michigan Department of Health and Human Services and its director for canceling its Medicaid contract.
Lakeshore Regional Entity, a public behavioral health plan, is asking the Court of Claims to issue a temporary restraining order to stop what it calls “the systematic dismantling of Lakeshore as an entity,” according to its Aug. 8 court filing. Lakeshore seeks a writ of mandamus compelling the state through DHHS Director Robert Gordon to retract its cancellation of Lakeshore’s state contract.
DHHS’ public information officer, Lynn Sutfin, said DHHS cannot comment on pending litigation.
According to the complaint, DHHS contracted with Lakeshore in October 2018 for services to manage state-related programs, including Medicaid, Healthy Michigan and the Flint 1115 Waiver.
But, DHHS told the entity in June that it will terminate the agreement effective Sept. 30 because Lakeshore didn’t address the lack of a risk management strategy for 2019 and couldn’t control what the department saw was “overspending.”
Lakeshore demanded in July that DHHS retract the cancellation, arguing the state couldn’t do so without providing Lakeshore an evidentiary hearing. The state agreed to “honor” a hearing, but moved forward with canceling the contract, the suit alleges.
A telephone prehearing conference has been set for Sept. 3.
Lakeshore alleges that like other Michigan public-managed care plans, it has experienced “fiscal distress…as a result of systematic underfunding…by MDHHS” and in February it entered into a contract with Beacon Behavior Health—a private PIHP the state wants to directly contract with to replace Lakeshore until the state can establish a new PIHP.
The lawsuit alleges DHHS “will award itself a 7.6 percent increase in funding” for fiscal year 2020, which means DHHS “will have up to $20 million more at its disposal.” Lakeshore, the suit claims, is the PIHP “with the highest projected increase in revenue in FY 2020.”
Lakeshore arranges for the delivery of behavioral health services for people with mental illness, developmental disabilities and substance use disorders in Allegan, Kent, Lake, Mason, Muskegon, Oceana and Ottawa counties.
In a separate civil lawsuit, Lakeshore was cited—but is not a named defendant—in a federal lawsuit, K.B. and M.B. et al v. Michigan Department Health and Human Services, which alleges “staggering failures” in mental health services to children and families. The suit alleged that DHHS told Lakeshore that 47 percent of its children approved for applied behavioral analysis were not receiving services deemed medically necessary, and of those receiving ABA, 70 percent were not receiving it in the amount, scope, and duration as deemed medically necessary.
Governor On Medicare For All…Shhh
Gov. Gretchen WHITMER got plenty of media attention during the run-up to the Democratic presidential debates in Detroit in early August, but nobody asked her to wade into the dispute on stage over Medicare for all.
U.S. Sens. Bernie Sanders and Elizabeth Warren defended it vigorously on stage while skeptics like Vice President Joe Biden and former Rep. John Delaney decried the end of private insurance.
Meanwhile, Whitmer’s position on the issue isn’t known. She hasn’t volunteered an answer and hasn’t been straightforward with an answer if she’s ever been asked.
She did say, “I was really heartened by the debate on health care in particular,” but rather than choose up sides and offend the progressives, she saw no reason to get into the middle of the intra-party battle.
Recall that in her gubernatorial primary, she faced two progressive opponents who were foursquare in favor of Medicare for all. She had a chance to endorse it during the debates, but she did not and her opposition to Medicare for all did not seem to hurt her. She defeated Shri Thanedar and Abdul El-Sayed, who favored the concept.
Democratic insiders who fear Medicare for all could cost them the election point to the Whitmer’s handling of the issue and how it worked for her.
As the presidential candidates and the national media were packing up to leave she sat down with The Detroit Free Press she referenced the healthcare issue that played out for about 60 minutes during the two debates.
She told the paper, “I think they’re all just trying to differentiate themselves at this juncture. But the common value is something that’s really important: Democrats want to expand access to affordable health care,” but she again did not reveal whether she was against Medicare for all.
By inference, that becomes clearer as she proceeds in the interview to reference her own candidacy.
“I ran on my record of expanding health care working with a Republican governor to expand Medicare in Michigan,” she recalled.
That, however, stopped short of mandating that consumers chuck their health care private insurance company coverage for the kind of universal coverage the progressives want aimed at taking the profit motive out of the equation.
AG: Engineer Firms’ ‘Incompetence…Principal Cause’ Of Flint Water Crisis
Michigan Attorney General Dana Nessel reiterated her belief that “incompetence” from private engineering firms “was a principal cause of the Flint water crisis.”
Her statement came July 14 after her office filed responses to motions from Veolia North America, Lockwood Andrews & Newnam and Leo A. Daly to dismiss a Genesee County Circuit Court civil case arising from the crisis.
“The incompetence of the city of Flint’s water consultants was a principal cause of the Flint water crisis,” Nessel told MIRS in an email statement. “It has become clear through documents obtained in discovery that the consultants made repeated missteps and engaged in reckless behavior.
“While Veolia and LAN continue to rely on their own distorted view of the facts, we stand by our complaint, which is backed by the evidence,” she added. “Our attorneys are working around the clock to ensure these companies are held accountable for their role in causing this crisis.”
The companies have asked Circuit Judge Richard Yuille to dismiss the complaint, arguing the responsibility for the crisis lies with the government and officials responsible for the oversight of the Flint water system. No court date to hear the motions has been set as of press time.
Flint residents also filed suit against the engineering firms, who have asked to dismiss those allegations as well.
The Attorney General’s office argues the engineering companies continue to have blinders on as to their involvement and responsibility. The court filings say the companies “still cling to an outdated report that did not take into account its role in the crisis” and “repeatedly mischaracterizes” the complaint, but Michigan law doesn’t allow the defendants “to play its game of ‘alternative facts.'”
Among those alternative facts, the AG’s office says, in part, is that the engineers base their narrative on now-dismissed criminal allegations.
Nessel separated herself from her office’s criminal investigation in the water crisis. That is being led by Solicitor General Fadwa Hammoud, who dismissed all pending charges in June while her team continues to investigate.
The charges were dismissed without prejudice, which means the AG’s office can refile felony or misdemeanor complaints. However, the team is working against a statute of limitations.
“LAN and Veolia’s failure to treat Flint’s water caused the crisis,” the AG’s complaints noted.
The state seeks to recover more than $350 million in damages it suffered from the water crisis, according to court filings.
Meanwhile, closed-door discussions continue in the civil cases filed in federal court.
Bill Would Prohibit Improper Use Of ‘Chemical Restraint’ In Nursing Homes
An estimated 179,000 people nationwide, believed to be around 16 percent of all residents of nursing homes, are administered antipsychotic drugs despite not having psychosis. Rather, the drug is used as a “chemical restraint,” according to a report issued last year by Human Rights Watch.
In “‘They Want Docile’: How Nursing Homes in the United States Overmedicate People with Dementia,” researchers visited more than 100 nursing facilities in six states and concluded such drugs are given to patients to control behavior for the convenience of staff and often without obtaining informed consent from the residents or their families.
But Melissa Samuel, president and CEO of the Health Care Association of Michigan (HCAM), said nursing homes and the federal government are already reducing the use of antipsychotics.
“They have undertaken a pretty aggressive initiative nationwide to lower the use of antipsychotic drugs.That has happened nationally and it absolutely has happened here in Michigan. We are under the national average in the state of Michigan for the use of antipsychotic drugs. So our facilities in the state of Michigan have made significant progress in lowering the use of them,” Samuel said.
Rep. Sarah Anthony (D-Lansing) introduced HB 4718 to define and prohibit the improper use of chemical restraints.
The bill defines improper usage as the practice of using antipsychotic drugs that are not required to treat a patient’s diagnosed medical condition, but as a form of discipline or for the convenience of nursing home staff. It says chemical restraints can be used only after physical restraint has been attempted and was unsuccessful.
The bill is intended to prevent health or administrative professionals from administering an unnecessary drug to a patient for the purpose of making their job easier by restricting a patient’s movement or behavior, according to Anthony.
“When our healthcare facilities are consistently under-staffed and under-funded, there is too great a temptation for providers to abuse or misuse chemical restraints due to a wide variety of reasons—whether it is lack of experience or training, frustration, or in some cases, malicious intent,” Anthony said.
She said she does not want to “water down their ability to use chemical restraints when it is necessary” such as when a patient is a danger to himself or herself, other patients or to staff.
“But this should also be used with caution. It should be used with much care, and in a proper fashion, not as a way to discipline folks,” Anthony said. “We have heard of cases of folks who are just being loud and unruly, or maybe using profanity, and instead of using de-escalation tactics or other less restrictive techniques, caregivers can just go straight toward chemical restraints.”
Anthony said investigators have found there has been poor documentation regarding the circumstances around an incident of using chemical restraint.
“That is really alarming to us. There should be clear standards for acceptable use of a chemical restraint so that you can encourage health care providers to tighten up those protocols. I think there are loopholes in place now. That’s where I’m concerned, instead of it being part of someone’s documented medical plan, that due to convenience it is being used.”
Although the bill does not itself provide penalties, sentencing guidelines are provided in existing law for abuse of vulnerable adults. There are first, second, third and fourth degree penalties, ranging from a misdemeanor punishable by one year in prison and a $1,000 fine to a 15-year, $10,000 felony.
Mark McWilliams, of the Michigan Protection & Advocacy Service, Inc., a nonprofit advocating legal rights of people with disabilities, said the issue is a “serious problem” in Michigan. His organization worked with Anthony on some of the definitions in the bill. He said he is looking forward to working with Anthony further on the legislation.
Samuel, however, said the federal government through the Centers for Medicare & Medicaid Services already has strong regulations on the use of antipsychotics, and “obviously, federal regulations will trump anything here on the state level, so that is what we are going to have to follow.” She sees the bill as a duplication.
“We are one of the most heavily regulated industries, period. We are right up there with nuclear power plants when it comes to the regulations that we operate under, which is a good thing. What we do and who we care for, we clearly understand that,” Samuel said.
Cathy Sunlin, HCAM’s vice president for Regulatory Services, said there is a thorough process doctors have to follow when using antipsychotic medications. For one, the physician has to document in the medical record the symptoms for which the medication is used, and then prepare a “risk-benefit statement specific to the individual.”
“We take what is called informed consent, which is that individual is educated again about all those risks and benefits and has the opportunity to say, yes, they would like to utilize or try that medication, or no, they would not. And we do not administer an antipsychotic medication without an informed consent,” Sunlin said.
Informed consent is one of the issues CMS surveyors look most closely at, Samuel said. If a nursing home is not using informed consent, they’ll be cited and have to bring the process into compliance.
“As we have learned more about Alzheimer’s and dementia and how to treat it, we’ve learned more on how to handle individuals as they progress in the disease versus treating them with any type of drug. There is other training and education and paths that now are used to help the individual. Maybe 10-plus, 20 years ago it probably was used more,” Samuel said.
The Michigan Department of Health and Human Services also updated its administrative rules in May for the use of restraint and seclusion in hospitals and other facilities, following CMS definitions.
According to the rules, a chemical restraint is “a medication when it is used as a restriction to manage the patient’s behavior or restrict the patient’s freedom of movement and is not a standard treatment or dosage for the patient’s condition.”
According to Lynn Sutfin, Public Information Officer for DHHS, the purpose was to provide clear definitions, with standards, so the facilities could develop appropriate standard operating procedures.
Samuel said HCAM is “comfortable” with that rule set.
“All Michiganders should be able to trust that care providers are choosing a medication or treatment plan because it is in the best interest of the patient, not because it is the easiest choice at hand,” Anthony contended. “We must fight to protect quality patient care and eliminate even the potential for this abuse.”
Her bill has been referred to the House Committee on Health Policy.
Lyon: DHHS Tech Demands Greater Than Funding Appropriated
There wasn’t enough money appropriated to match the IT needs of the Michigan Department of Health and Human Services (DHHS), former DHHS Director Nick Lyon said July 11.
Lyon was asked to respond to a letter circulated by the State Budget Office July 10 that suggested the current and ongoing IT funding shortfall is the result of the “previous administration” pursuing major IT initiatives “without correctly accounting for the long-term cost impacts.”
Lyon said in an interview with MIRS the situation shouldn’t be cast as an old administration vs. new administration issue, but rather how to go about making sure the proper amount of resources are allocated to IT projects.
The letter signed by Budget Director Chris Kolb indicated the SBO’s Office of Internal Audit Services did some audit work on the DHHS, and came away with a number of observations about how there was a “lack of a formal process and attention from” the former DHHS leadership to oversee IT spending.
For instance, the auditors found large, multi-year contracts were used to fund additional projects not authorized by appropriations—such as spending the department’s maintenance and operations funds on projects.
The auditors said there was “no direct linkage” between project spending and approved appropriations.
In addition to that, the auditors also noted the use of change notices on contracts, instead of “competitive bids on technologies leveraged statewide” may have contributed to higher vendor rates; as well as cases where contractors began working on projects prior to the execution of signed statements of work.
Kolb’s letter said the “previous administration” deployed “short-term budget maneuvers” for several years “before the resulting shortfall reached this magnitude,” currently pegged at a projected $45 million by the end of this fiscal year.
Lyon acknowledged the department faced financial pressure every year, resulting in funding transfers and “robbing Peter to pay Paul.”
But he said the IT needs required by the DHHS continually dwarfed the money appropriated, so he said the department did the best it could with what it had.
Lyon said the department’s priority was to make sure people eligible for their benefits ultimately received them, and the department prioritized its projects with that in mind.
Lansing Lines is a cooperative feature presented by MIRS, a Lansing-based news and information service and Healthcare Michigan.