DSS has no basis for suit against lawyers, Blumenthal says

By Mary E. O’Leary
Register Topics Editor
HARTFORD — Attorney General Richard Blumenthal has found no basis “in statute, case law or elsewhere” to support a request by the state Department of Social Services to sue legal aid attorneys over their correspondence with potential insurance bidders.
In his six-page letter to DSS Commissioner Michael Starkowski, Blumenthal Tuesday said such a suit “could well violate profoundly significant, well-established First Amendment rights and principles,” and have a chilling effect on public discourse, while also encouraging a costly countersuit.
David Dearborn, spokesman for Starkowski, said the commissioner would have his in-house counsel review Blumenthal’s letter.
“Regardless of whether legal action is possible, the agency needs some assurance that outside involvement with the state’s bidding process will not become a tolerated practice,” Dearborn said.
Patricia Kaplan, executive director of New Haven Legal Assistance Association, had no comment beyond her agency’s desire to work with DSS to “make the (insurance) transition as smooth as possible” for the state’s Medicaid clients.
Three legal aid attorneys sent letters to the six potential bidders on the Husky/Charter Oak insurance plans advising them of their long litigious history with the current Medicaid managed care organizations, which they attributed to a lack of understanding over what the contracts require.
Starkowski accused the trio of “tortious interference” with the state’s attempt to enter into contracts for Husky, the state’s Medicaid insurance that serves 322,000 residents, mainly poor children, and Charter Oak, a new attempt to reach some 10 percent of the uninsured in Connecticut, mainly single adults.
The lawyers also said they were considering suing the state for combining the two plans in one bid package, since a good portion of the clients will have to pick a new insurer by the end of March and possibly again in June.
Starkowski had requested approval to go outside the attorney general’s office to get a lawyer since Blumenthal had worked with one of the attorneys on several lawsuits.
Blumenthal agreed with the attorneys that the insurers running Husky were subject to the Freedom of Information Act, a stand originally not supported by DSS, but which was upheld in court and is now endorsed by the department.
Blumenthal said no potential bidder has withdrawn from the process, while the insurers are sophisticated enough not to be deterred from participating simply because of the letters.
The attorney general said the attorneys did not stand to benefit economically by their actions and on their face, the letters “appear to advance their efforts to ensure that the state’s Medicaid program operates in the best interest of their clients — Connecticut’s needy Medicaid recipients. As your letter notes, their clients are your department’s clients too.”
“None of these facts inhibits me, let alone disqualifies me, from making a judgment as the state’s chief legal officer on whether your suggested action has legal and factual support or would serve the state’s best interest, or whether outside counsel is appropriate,” Blumenthal wrote.
The attorney general said if Starkowski feels the attorneys misstated facts, this can be corrected with a clarification sent to all bidders and he quoted from Justice Brandeis that the solution is “more speech, not enforced silence.”
The six bidders are: AmericHealth Mercy Health Plan, Philadelphia; Anthem Blue Cross and Blue Shield; Community Health Network of Connecticut, Schaller Anderson Health Plans, Phoeniz, Ariz. and UnitedHealth Group, Vienna, Va. Delta Dental of N.J. bid, but dental coverage is not part of Charter Oak and has been carved out as a separate program to go into effect July 1 for Husky clients.
Since Jan. 1, DSS has taken over the major decisions on Husky because of continuing problems with the current insurers.
Clients enrolled in HealthNet and WellCare will have to pick new insurers by the end of March, while DSS will have sent out more than 130,000 letters to clients on the transition by that point. One major change is the recent decision by Anthem to agree to compliance with the FOIA.
Dearborn said he was glad Blumenthal shares Starkowski’s “commitment to the integrity and independence of the state procurement process,” quoting from the attorney general’s letter. “We need to work together to make sure these words are supported by everyone,” Dearborn said.
Mary E. O’Leary can be reached at 789-5731 or moleary@nhregister.com.