On January 8, 2013, the Mecklenburg County Board of Commissioners voted unanimously to approve the following actions to retain local accountability and management of the state’s Medicaid waiver program through MeckLINK Behavioral Healthcare (MeckLINK):
1. Direct staff to continue working toward implementation and to engage consultants to assure readiness and ensure progress.
2. Authorize the County Manager, with the assistance of Counsel, to bring an action in the Office of Administrative Hearings as outlined in the attached memo to the Board of County Commissioners from J. Daniel Bishop dated January 8, 2013.
3. Reaffirm commitment to the legislative agenda item to protect Mecklenburg’s ability to implement the MeckLINK MCO.
4. Instruct staff to continue advocating to DHHS that the decision of former Acting Secretary Delia should be overturned.
The Board took this action because it believes the former DHHS Secretary’s decision to reassign MeckLINK’s waiver implementation duties did not comply with the law.
The Board voted to approve these actions following a closed session discussion with County Attorney Marvin Bethune and outside counsel Dan Bishop. Following the closed session discussion, the Board authorized the public disclosure of the memorandum provided to the Board by Mr. Bishop that identifies the legal defects in the Department of Health and Human Services Secretary’s decision to reassign MeckLINK’s Medicaid waiver implementation duties.
According to Mr. Bishop’s memorandum, the legal defects are as follows:
• DHHS incorrectly read a January 1, 2013 statutory deadline as requiring MeckLINK to be certified ready to operate, when the deadline was for a different purpose.
• DHHS refused to certify MeckLINK’s readiness based on its consultant’s prediction that MeckLINK would be not ready to “go live” by February 1, 2013. The statute does not impose a February 1, 2013 deadline. DHHS adopted the February 1, 2013 date administratively, without sufficient and proper notice to MeckLINK.
• DHHS acted arbitrarily by applying the February 1 deadline inflexibly, given the statutory implementation deadline of July 1, 2013, and by reassigning MeckLINK’s duties despite finding that MeckLINK will be able to operate well before that deadline and sooner than the agency replacing it.
• Delia exceeded his statutory authority in reassigning MeckLINK’s Medicaid waiver implementation responsibilities without first allowing MeckLINK to merge or form an agreement with one of the other agencies operating under the Medicaid waiver.
• Delia improperly withdrew MeckLINK’s function without required due process, including giving proper notice of nonperformance, establishing a Plan of Correction, and providing MeckLINK “focused technical assistance” for up to six months before withdrawing the function.
The memorandum also communicates that Mecklenburg County is entitled to appeal Delia’s decision before an administrative law judge (ALJ) through the Office of Administrative Hearings. The ALJ has the authority to grant a preliminary injunction to delay Delia’s decision pending the appeal hearing. Delia’s action also can be reversed by the ALJ on the grounds that he:
• Exceeded his authority;
• Acted erroneously;
• Failed to use proper procedure;
• Acted arbitrarily or capriciously; or
• Failed to act as required by law or rule
Mr. Bishop advised the Board that he believes every one of these grounds exists and that a finding on any single item is grounds for reversal.
Independently, the ALJ may determine that DHHS’s rule to certify operational readiness by an inflexible reference to predicted readiness on February 1, 2013 is invalid on the grounds that such a rule:
• Is not within DHHS’ statutory authority;
• Was not made clear and unambiguous to MeckLINK; or
• Was not reasonably necessary to enable MeckLINK to fulfill a duty (i.e., implementation by July 1, 2013) delegated to it by the General Assembly
Mr. Bishop advised the Board that he believes each of these grounds also exists.
During the open session of the meeting, the Board also received an update on MeckLINK’s progress in preparing for waiver implementation. MeckLINK Director Phil Endress said MeckLINK has completed 85%-90% of the required readiness steps and would be ready by February 1, 2013 to implement the Medicaid waiver program as planned. The statutory deadline for the launch of the Medicaid waiver program is July 1, 2013.
The Board’s decision drew applause by mental health services providers and advocates attending the meeting. Earlier in the meeting, County Manager Harry Jones read aloud two of several emails the Board received recently from providers and advocates describing MeckLINK as being best suited to deliver high-quality, cost-effective outcomes for Mecklenburg County consumers, families and community.
Read a summary of the legal analysis