September 1, 2005


OYSTER NOTES FROM THE HEAD OF THE AQUARIUM

Today is the first of September, and oysters are officially back in season.  In last week's column about a boy growing up in Inwood, we cited, thank Google, one Clifton, a fishmonger, who explained why summer oysters were distrusted.  Shortly after we went to press, we received an amusing and informative letter from the general manager of the New York Aquarium, relayed by an old friend, Richard Lattis, a senior officer of the Wildlife Conservation Society.  You should link to the aquarian's letter, which is very well done.
 

BRIDGE TOLL CONTINUES TO CLIMB    (Not an Accident Report)

There was a small error in the column, surprisingly noted by only one reader.  The toll for the Henry Hudson Bridge is no longer $2, but was raised to $2.25 on March 13, 2005.  Since most riders pay by E-ZPass, the increase was not that widely noted.  That makes the cumulative increase since1936, when Moses opened the bridge, 2150% rather than 1900%.
 

WRONGDOING BECOMES ACCEPTABLE,  LIKE IT OR NOT

In response to the Inwood column, we received many more e-mails than we do for the usual column on the follies of our public officials.  This reinforces a notion that has been germinating in our mind (taking the editorial 'we' to the point of absurdity).  The notion is that, even though we know that some aspects of our governance are rotten or corrupt, the press and the public essentially adjust to the situation, it is no longer newsworthy, and evokes less reader interest than a well-written article on history or geography, two subjects that were taught in public school before the era of self-esteem came upon us.

Therefore, complaining that Assembly Speaker Sheldon Silver receives close to a million dollars a year from a private negligence law firm (and we do not know that for a fact, for there is no legal requirement for disclosure of the amount of outside income earned by legislators) may have the same effect as observing that it is cold in the winter and hot in the summer.  Yet progress is slowly made, and the rules adopted by the legislature this year are measurably (but not immeasurably) better than last year's rules.
 
In reality, the text of the rules matters relatively little as long as all the majority members do the bidding of the Speaker or the Assembly or the Majority Leader of the Senate.  On the other hand, the pressure for reform may soften the hearts of the leaders, and make them more responsive to the legislators, except when their personal economic interests are involved (upstate land use for the majority leader, tort law for the speaker).
 
What we are saying is that there is a level of tolerance of conduct that reasonable people (like us) feel is outrageous although legal, and beyond the immediate possibility of changing by political means.  We are not suggesting that people stick their heads out windows and say "I'm mad as hell and I'm not going to take it anymore", because in the light of natural disasters like Katrina and human tragedies like Iraq, the fact that these guys are using their political positions to enrich themselves personally is scarcely the end of the world. 
 
Nonetheless, the business we have chosen (Cf. Rule 29-B) is trying to bring about the honest and efficient government of the city and state of New York, in the general public interest rather than the special interests who bring their lobbyists and lawyers to bend public officials to their will.  So even though we know that there are greater injustices (like Darfur) and problems (like AIDS and poverty), we do our best to make our corner of the universe a better place to live and work.

 
 
We turn now to Medicaid fraud, which we wrote about extensively from July 17 to 20, following a blockbuster series of articles in the New York Times alleging that billions of dollars each year are lost to fraud and waste in New York State's Medicaid program.  New York City alone spends almost five billion dollars a year on Medicaid, which is 25% of the program's total cost.   No other city spends anything close to that sum.
 
The Times expose prompted other newspapers to publish Medicaid horror stories of their own.  On August 5, Governor Pataki announced the appointment of Kimberly O'Connor, a lawyer in his office, as Medicaid Inspector General.  As of September 1 (today), Ms. O'Connor has not transitioned from her old office to her new one.
 
On August 22, the Post editorialized on the subject.  In "MEDICAID MALARKEY", they denounce in colorful language all the State and City officials who have asked for more money for Medicaid without having acted effectively to reduce fraud and waste. Read their prose:
"And now, even the ultra-liberal Times - The Times! - says perhaps $18 billion a year is being stolen.  That's about $3000 for every taxable return filed - and almost as much as the average resident's total state tax bill.  Hand it back to taxpayers, and New York might actually become competitive again.  But no, New York's pols, Dems and Republicans alike, fight over how to finagle more money to waste.  Dennis Rivera, who heads the health-care union (the chief beneficiary of Medicaid largesse) must be splitting his sides in laughter.  All the way to the bank."  In the editorial, all but the last two sentences are separate paragraphs.
 
On August 23, Brooklyn District Attorney Joe Hynes wrote an op-ed piece for the Post, calling for the strengthening of the Medicaid Fraud Unit, which is in the office of Attorney General Eliot Spitzer.  Mr. Hynes was a Medicaid prosecutor in the 1970's.
 
On August 27, the Daily News's lead editorial commented on the situation: "NEW YORK'S MEDICAID OVERDOSE."  Their conclusion: "State officials have no one but themselves to blame for the Medicaid mess.  They're the ones who set up the Cadillac package of benefits, bailed out inefficient providers and allowed fraud to run out of control.  Instead of pointing fingers at Washington, Albany needs to get serious about reining in Medicaid costs.  Getting more from Washington is not the answer; spending less is."
 
Back on July 19, during the week of the war of the words, two New York Republicans, upstate Congressman John Sweeney and Nassau Senator Dean Skelos, wrote to Michael O. Leavitt. Secretary of Health and Human Services, requesting a Federal audit of New York State's Medicaid programs and fraud detection and recovery activities.  Forty days and forty nights later, they received a partial response from Daniel R. Levinson, HHS' Inspector General.
 
The Times' report on the correspondence was written by Michael Luo, co-author of the July series with Clifford Levy. On B5, under the head: "REVIEW PLANNED OF STATE EFFORTS TO CURB FRAUD IN MEDICAID: Federal Officials Will Take a Closer Look at a Program Under Fire."  Luo wrote: "Mr. Sweeney and Mr. Skelos had initially hoped that the inspector general's office would also look into the Health Department's anti-fraud efforts, as both offices receive substantial federal money for Medicaid fraud prevention. But oversight of the Health Department's performance in this area rests with the Centers for Medicare and Medicaid Services..."
 
As of today, neither Secretary Leavitt nor anyone else at CMMS has responded to the Sweeney-Skelos request for an audit of the State Health Department, a much larger and more dubiously managed agency than the AG's Medicaid Fraud Control Unit. As Luo reports today: "Last year the [State Health] department referred just 37 cases to the attorney general, far fewer than the number referred by similar agencies to Medicaid fraud prosecutors in any other large state."  That is ONE (1) case for every $1.2 BILLION spent on Medicaid in New York.
 
The Feds ought to be seriously concerned about the estimated four billion dollars wasted or stolen in New York State.  Not only does New York have the most expensive Medicaid program in the United States, but it is the only state which places so high a spending burden on cities and counties for costs. which have no control over the program.  A thorough professional audit is urgently needed.  Unfortunately, some government agencies are more focused on spending money than saving it.
 
CMMS is led by Administrator Mark B. McClellan, M.D., an associate professor of economics and medicine at Stanford and a practicing internist.  He earned his M.D. from the Harvard-MIT division of Health Sciences and Technology, and his Ph.D. is in economics and from MIT (The Massachusetts Institute of Technology, in case you are a rube.)  He is the older brother of Scott McClellan, White House press secretary.  BTW, the mother of this talented duo is Carole Keeton Strayhorn, comptroller of the State of Texas, and currently a candidate for Governor, challenging incumbent Rick Perry in the Republican primary.  She is the daughter of Page Keeton, former dean of the University of Texas Law School, who is the brother of Robert E. Keeton, who was my law school professor in Torts and Trial Practice. Robert Keeton was a wonderful and inspiring teacher who, in the 1950's, had a Southern accent.  This exposition is submitted as proof of the principle of Six Degrees of Separation.
 
Back to work:  Dr. Mark McClellan should take a personal look at this issue, rather than leaving it to his doubtlessly talented staff.  If Secretary Leavitt does not forbid him from acting, which we believe is an unlikely eventuality, McClellan should order a full audit of the highest-spending state Medicaid program, which, to use the language of diplomacy, is widely regarded as being seriously flawed.  We know there will be other inquiries, but the Federal government, which pays 50% of Medicaid costs, clearly has an important interest in this matter.  The lessons learned by investigating New York State could be applied to other states, and the result could be, not only to reduce spending, but to increase public confidence in this forty-year-old legacy of the Great Society.