State Rep. Dustin Miller (D-Opelousas) has filed HOUSE BILL 724 that would provide an exception to certain provisions of the state ethics code that would allow a Louisiana Department of Health physician to skirt a conflict of interests—in other words, to circumvent the very situation ethics rules were put into place to prevent.

Miller’s bill would allow the physician, Dr. Harold Brandt, to perform in a dual capacity that has already been rejected by the ethics board in a 2016 RULING.

The ruling of July 18, 2016 informed Dr. Sreyram Kuy that he could not accept employment with a healthcare provider that accepted Medicaid payments for medical services because of her position as Medicaid Medical Director, Chief Medical Officer of the Bureau of Health Services Financing (BHSF) within the Department of Health and Hospitals (DHH), now LDH.

The decision, written by Jennifer T. Land, read, “The Board concluded…that the Code of Governmental Ethics prohibits you from being employed as a surgeon for OLOL (Our Lady of the Lake Regional Medical Center), other Louisiana licensed hospitals and other healthcare providers that accept Medicaid payments for medical services while you serve as Medicaid Medical Director/Chief Medical Officer of BHSF.”

Land cited the specific section which said the code “prohibits a public servant from receiving compensation for services rendered to the following persons: (1) those who have or are seeking to obtain a business, contractual or financial relationship with the public servant’s agency, (2) those who conduct operations or activities that are regulated by the public servant’s agency, and (3) those who have a substantial economic interest that could be affected by the performance or non-performance of the public servant’s official duty. OLOL, other Louisiana licensed hospitals and other healthcare providers that accept Medicaid payments for medical services are regulated by your agency, BHSF. Therefore, as the Medicaid Medical Director/Chief Medical Officer of BHSF, you are prohibited from being employed by or from providing compensated services to these entities.”

What makes Miller’s bill particularly interesting, however, is that both Dr. Kuy’s predecessor, LDH Secretary Dr. Rebekah Gee, and his successor, Dr. Harold Brandt, each worked in that same position without bothering to request an ethics ruling, apparently falling back on the Nike slogan “Just do it.”

In fact, in the case of Dr. Brandt, LouisianaVoice has been informed that he was reappointed to the position with the proviso that Miller’s bill would be introduced in order to change the existing law to accommodate him. This despite the fact that an ethics review was requested of LDH legal to determine if such an arrangement was acceptable, and the answer was no, according to sources.

On Jan. 25, LouisianaVoice published a story in which it was revealed that Dr. Brandt previously served as Medical Vendor Administrator (Medicaid Medical Director) for LDH from April 7, 2016 to Sept. 2, 2017 at a rate of $156.25 per hour while he simultaneously served on the staff of BATON ROUGE CLINIC, which received $83,000 in PAYMENTS from LDH during Dr. Brandt’s tenure at LDH.

the Medical Director serves as chairman of the Medical Quality Review Committee, so LDH legal was asked for a second opinion whether any ethics concerns existed in regards to that capacity.

The response was the following potential issues identified under the Code of Governmental Ethics. The Medicaid Quality Committee (Committee) of the Louisiana Department of Health, Bureau of Health Services Financing, fulfills the role of the Medical Care Advisory Committee required by 42 CFR 431.12.  According to its Bylaws, the Committee provides focus and direction for Medicaid program quality activities that assure access and utilization of quality, evidence-based healthcare that is designed to meet the health needs of all Louisiana Medicaid and Children’s Health Insurance Program (CHIP) recipients through:

• Establishing and maintaining sound business and clinical practices/benchmarks that ensure a system of internal controls and support optimal performance within established thresholds;
• Driving meaningful and measurable collaboration between the LDH agencies BHSF, Office of Behavioral Health (OBH), Office of Public Health (OPH), Office of Aging and Adult Services (OAAS), and Office for Citizens with Developmental Disabilities (OCDD), with a focus on demonstrating improved care and service for Medicaid recipients by using evidence-based guidelines;
• Creating and sustaining a vibrant evaluation process for Louisiana Medicaid benefits and services and health care delivery systems that is based on integrity, accountability, and transparency;
• Offering expertise and experience of Committee members to recommend improvements to BHSF that will serve to better meet the healthcare needs of recipients in a cost efficient manner;
• Sharing Committee recommendations with recipients, providers and policy leaders; and
• Forming subcommittees to address specific areas of care, as needed.

The Committee’s functions are advisory and shall include:

• Monitoring ongoing metrics and ensuring findings are reported on a regularly scheduled basis (quarterly or annually);
• Ensuring key quality initiatives are identified to align with regulatory and business requirements;
• Overseeing quality improvement projects and ensuring coordination and integration of the quality improvement activities;
• Reviewing performance results and providing feedback and recommendations to the MCO action plans; and
• Participating in the evaluation of the Medicaid Quality Program by evaluating the quality, continuity, accessibility, and availability of the medical care rendered within Louisiana.

The Secretary of LDH appoints all non-permanent Committee members, which must include board-certified physicians and other health professionals familiar with the medical needs of low-income population groups and with the resources available and required for their care, in accordance with 42 CFR (Code of Federal Regulations) 431.12(d).  Additionally, the members of the standing subcommittees are appointed by the Louisiana Medicaid Medical Director, who serves as the permanent Chair of the Committee.

La. R.S. 42:1113B prohibits an appointed member of any board or commission, member of his immediate family, or legal entity in which he has a substantial economic interest from bidding on or entering into or being in any way interested in any contract, subcontract, or other transaction which is under the supervision or jurisdiction of the agency of such appointed member.

As such, La. R.S. 42:1113B would prohibit Medicaid providers from serving, despite 42 CFR 431.12(d) effectively requiring they be appointed to the Committee or subcommittees. LDH should consider proposing an amendment to the Code of Governmental Ethics to provide an exception for Medicaid providers appointed to serve on the Medicaid Quality Committee or any of its subcommittees.

Unconfirmed reports said that Brandt prevailed upon Gov. John Bel Edwards to write Dr. Gee to request that he be allowed to continue serving as Medical Director for LDH.

An attempt was made to reach Dr. Brandt at LDH but his phone line was forwarded to a non-working number. The Department of Civil Service has no record of his employment after last Sept. 2.

LouisianaVoice has made a public records request of LDH for all correspondence between Dr. Brandt and Edwards, between Dr. Brandt and Dr. Gee and between Edwards and Dr. Gee relative to Brandt’s employment.

LDH received an email today (April 3) from LDH to the effect that it would take 30 days to provide such records. It takes only a simple keystroke to retrieve such messages from email files, however. They can be produced in a matter of seconds.