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AG says mental health audit will remain secret

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Copyright © 2013 Albuquerque Journal

The office of Attorney General Gary King on Monday formally refused to release the bulk of an audit that alleges widespread wrongdoing by 15 New Mexico behavioral health providers, citing the “law enforcement” exception to the state’s Inspection of Public Records Act.

King’s office did release 100 pages of emails between the Attorney General’s Office and the state Human Services Department showing the two agencies were meeting about problems with behavioral health providers as early as January of this year.

The Human Services Department, citing a request from the attorney general, has only released a summary of the audits, prompting complaints from the providers, some lawmakers and an open government group.

King’s refusal to release the audit was in response to a request by the Albuquerque Journal under the state’s Inspection of Public Records Act. The emails produced also were in response to that request.

HSD Secretary Sidonie Squier has said the audit revealed an estimated $36 million in improper payments, fake billing, potential shell companies and nonprofit executives improperly getting rich off Medicaid funds.

The special audit was done by Public Consulting Group Inc., a Boston firm.

The emails show that as early as January, HSD officials were making contingency plans to replace a Las Cruces-based counseling center with a Tucson firm. That didn’t happen until July.

About half the providers sought a temporary restraining order in federal court but that was denied last week when a judge ruled they had not met the requirement of proving they were likely to prevail in a lawsuit on the merits.

Legislators, however, have been criticizing the failure to release the audit and the suspension of payments to the providers.

The New Mexico Foundation for Open Government’s executive director, Terry Schleder, said the organization disagrees with the attorney general.

“Just because the audit was sent to the Attorney General’s Office doesn’t make it a law enforcement document,” he said.

Schleder said the public deserves to know the details of the audits, adding that “the stakes are really high.”

In one of the emails released Monday, Assistant Attorney General Jody Curran, director of the Medicaid Fraud Division, said the investigation based on the audit could take more than a year.

HSD has insisted that new management companies will make sure patients continue to receive their services.

A letter from Chief Deputy Attorney General Albert J. Lama to HSD that accepted the referral said the acceptance “is not confirmation of any of the findings” but allows the Medicaid Fraud Division to begin its investigation.

The emails released by the Attorney General’s Office show the FBI and U.S. Attorney’s Office were brought in on the audit in June, just before a summary of the audit was released.

The emails also show HSD officials were concerned that some of the providers might declare bankruptcy and they wanted the attorney general’s help in making sure all client records were turned over to the department if that happened.

Fifteen behavioral health providers in New Mexico had their Medicaid funding for treating people with mental illness and substance abusers frozen by HSD last month.

The behavioral health funding has been restored to just one provider since then. Two others have had Medicaid funding that is not related to behavioral health services restored.

HSD General Counsel Ray Mensack wrote in an email that 88,000 New Mexicans use the agencies providing mental health and drug counseling. In the same email, he said that cases “where there is no credible allegations of fraud and are just technical violations” could be settled by HSD.

HSD has said it could pay up to $18 million to five Arizona behavioral health companies to provide transitional services, ranging from technical assistance to full-out management of the New Mexico nonprofits.

Funds are being shifted within the agency for the additional spending.

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