Managed care contract awarded for West Virginia foster care program

Del. Steele questions cost to defend program

CHARLESTON — A long-awaited contract to manage health services for West Virginia’s foster care program was awarded Tuesday.

A member of the House of Delegates questioned the costs of legal services to defend the program in federal court.

The Department of Health and Human Resources announced Tuesday afternoon that Aetna Better Health of West Virginia was selected as the managed care organization to operate medical and behavioral health care services for the state’s nearly 7,000-member foster care system. The 3.5-year contract is expected to cost as much as $200 million per year.

“West Virginia is in the midst of a child welfare crisis, and DHHR believes the utilization of an MCO to help provide coordinated care to this vulnerable population will assist us in addressing this issue,” said Jeremiah Samples, deputy secretary for the department, in a statement Tuesday.

Aetna was one of three companies, including The Health Plan and UniCare, that submitted bids Aug. 16 to be the managed care organization. House Bill 2010, which passed the West Virginia Legislature during the 2019 session, allowed DHHR to seek out a company to manage health care for foster children.

According to data from DHHR, foster care placements have increased from 4,129 placements in September 2011 to 6,895 placements in September 2019, a 67-percent increase. Of that number, 455 children have been placed in out-of-state foster care. Officials attribute the growth in foster placements to the growth in opioid use, including prescription drugs, heroin and fentanyl.

A lawsuit is pending against DHHR and Gov. Jim Justice over the foster care system. Disability Rights West Virginia, A Better Childhood and the Shaffer and Shaffer law firm filed suit Sept. 30 in U.S. District Court for the Southern District of West Virginia. They allege that DHHR is not taking proper care of foster children in the state’s custody.

Last week, the Attorney General’s Office and DHHR awarded the outside counsel legal contract to defend the state in federal court to Brown and Peisch, a law firm based in Washington, D.C., at a rate of $575 per hour. The state, through the outside counsel, has until Dec. 1 to respond to the lawsuit.

The price tag for the outside counsel didn’t sit well with Delegate Brandon Steele, R-Raleigh, a member of the House Judiciary Committee. He issued a statement Tuesday lambasting DHHR and the Attorney General’s Office for accepting the bid.

“I’m deeply concerned that our state government has exclusively contracted with an out-of-state firm at such a high price,” Steele said. “I am going to be sending letters to Attorney General Patrick Morrisey, the Secretary of DHHR and Gov. Jim Justice asking for more details about this process. I want to know the reasoning behind how and why this happened because, as a lawyer, I can’t help but look at that and think, ‘That’s not right.'”

Allison Adler, communications director for DHHR, defended accepting the bid. Adler said Brown and Peisch was one of five bidders for outside legal services, and the firm was selected based on its expertise in these kinds of cases.

“After review of all five bids, Brown and Peisch…was determined to be the best choice for West Virginia,” Adler said. “Of all of the firms that applied, only Brown and Peisch addressed each criteria listed in the request for proposal. Specifically, they have expertise in administrative litigation involving child and family service reviews conducted by the Children’s Bureau within the Administration of Children & Families.”

Curtis Johnson, press secretary for the Attorney General’s Office, said the selection of Brown and Peisch was based on the needs of DHHR and the expertise required to defend the state against the lawsuit.

“We take seriously the client’s perspective, in this instance that of DHHR, on which firm should be involved in staffing a particular matter,” Johnson said. “When outside counsel is sought, there is always an effort to ensure the firm chosen has the requisite technical expertise in the specialized area of law that is in dispute, and this is a very technical and specialized area of law.”

Steele, in his statement, said he was concerned about the added costs of having to defend the state against the lawsuit, including travel reimbursements for traveling the state to put together a defense. Steele said in-state law firms should be able to handle the case.

“If there is a legitimate reason why the state selected an out-of-state firm exclusively for this litigation — for probably twice the cost of what in-state firms bill — then by all means, I think the people of West Virginia deserve to hear that answer,” Steele said.

Steven Allen Adams can be reached at sadams@newsandsentinel.com


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