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Hispano chamber is sued over health exchange protest

Copyright © 2018 Albuquerque Journal

The firm that won a $3.2 million contract to inform New Mexicans about the state’s Health Insurance Exchange has filed a defamation lawsuit against the Albuquerque Hispano Chamber of Commerce, which is protesting the award and claims it was wrongfully shut out of the competition by a group of predominately Anglo evaluators.

Chamber officials, during a meeting in March with officials from the exchange, known as beWellnm, argued that the procurement process had failed to give sufficient consideration to Hispanic interests. They proposed in March that the exchange give the chamber a significant cut of the contract already awarded to The Waite Co. LLC.

Ernie C'de Baca

Ernie C’de Baca

Chamber CEO and President Ernie C’de Baca went so far as to question during the March meeting why the health exchange’s CEO position wasn’t filled by a qualified New Mexico Hispanic.

The Waite Co., which also alleges interference with contractual relations, is seeking a court order to stop the chamber from further “false and defamatory statements” about The Waite Co. and the proposal that led to the award.

The lawsuit also alleges that the Hispano chamber has contacted at least one state legislator to try to persuade the Health Insurance Exchange to decide the protest in the chamber’s favor.

No hearings have been set in the lawsuit, which is assigned to state District Judge Victor Lopez of Albuquerque.

The chamber filed a protest in December after ranking last among three contenders for a new beWellnm contract that consolidated outreach and education, marketing and advertising and communications and public relations functions under one company. Till then, both the Hispano chamber and The Waite Co. had been among beWellnm contractors.

At the March meeting, C’de Baca complained about a lack of diversity in the procurement committee and an ad hoc committee of the board that reviewed the contract award. The meeting was recorded and transcribed by the chamber.

C’de Baca contended at the time that what was “most disconcerting and hypocritical” is the health exchange’s perceived goal to inform New Mexicans in a “state that’s 48 percent Hispanic” and only one of the five members of the evaluation committee was Hispanic.

“And it just seems odd that you wouldn’t even consider the demographics of your evaluators that maybe there should be some fairness with that,” he said.

In November, the health exchange board chairman, Dr. J.R. Damron appointed a three-member ad hoc committee of the board to review the procurement process, and found the award to The Waite Co. was valid, fair and accurate, according to board meeting minutes.

But C’de Baca has complained that the ad hoc committee had no Hispanics, although several Hispanics serve on the Health Insurance Exchange board. The 13 voting members are appointed by the Legislature and the governor.

C’de Baca, according to a transcript of the March 29 meeting, addressed Cheryl Gardner, CEO of beWellnm.

“I’m not sure how long you’ve been here, but – and I’m sure you’re good at what you do. It just startles me that throughout the term of the Be Well New Mexico, there’s not one New Mexican, not one Hispanic that was maybe qualified for the job. And that’s no offense to you, Cheryl. I’m just saying I just can’t understand why people don’t think that way here in New Mexico. I think that’s a problem for our state.”

Gardner was hired effective March 2017 to run beWellnm, New Mexico’s state-based provider of health care services for small businesses and individuals.

She previously worked for both the Arkansas Health Insurance Marketplace and the Utah Health Exchange.

According to the March meeting transcript, C’de Baca contended that the request for proposals for the contract “was written with The Waite Company in mind.”

Whitney Waite

Whitney Waite

But the lawsuit filed by The Waite Co., whose president is Whitney Waite, contends the statements by the chamber are wrong and “harmful to TWC’s reputation, and tend to discourage others from associating or dealing with TWC.”

And, the “damaging false representations” could hurt The Waite Co.’s chances of winning jobs with two New Mexico government agencies, where the company has submitted bids, the lawsuit states.

“In making misrepresentations, submitting a meritless protest, publishing defamatory statements, contacting TWC subcontractors, and contacting legislators, AHCC has acted with an improve motive intended to harm TWC and through improper means.”

For instance, the lawsuit alleges, the chamber misrepresented The Waite Co. in its protest by saying the company “has no Spanish-speaking representatives working in the outreach and education effort to the underserved Latino population.” Chamber officials say that an estimated 55 percent of the 200,000 eligible uninsured New Mexicans are Hispanic, with 21 percent Native American and 21 percent Anglo.

Yet, The Waite Co. says it has contracted with Centro Savila to perform navigator services to help the public choose an insurance plan, and a communications subcontractor, The Garrity Group LLC. Both firms employ Spanish-speaking staff members who work in the outreach and education effort, the lawsuit says.

The chamber, which has 1,300 members, about 70 percent of whom are Hispanic, had been a health exchange subcontractor for the past five years.

Michelle Hernandez, an Albuquerque attorney with the Modrall Sperling Law Firm, is chairwoman of the Chamber. Neither C’de Baca nor Hernandez returned Journal phone calls Tuesday.

But Hernandez told exchange officials in March, “If this protest continues to be denied (and) the Hispano chamber seeks civil action, it will not be just against beWell; it will also be against The Waite Co.”

Hernandez also insinuated at the March meeting that the office of Attorney General Hector Balderas was looking into the $3.2 million procurement. AG’s Office spokesman James Hallinan told the Journal the office “fully reviews every complaint received and investigates where appropriate. It is the policy of this office to neither confirm nor deny an existence of an investigation.”

At the March meeting, C’de Baca proposed that the contract with Waite be amended to exclude community engagement and strategic items, which was in the Hispano chamber’s original proposal.

That would roughly cut in half the Waite contract.

“It would avoid beWell from having to deal with some of the tangible and intangible costs of further investigation by the AG or legal proceedings. I think the community would see that it serves and it would be … in the best interests of the community,” he said in March.

“We’ve done a great job for the last five years,” Hernandez said at the time. “We have not had any criticism from the work that we’ve already done. You consider the gamble that would be taken should the AG continue its investigation.”