Man claims Md. residency, right to coverage

Daily Record, The (Baltimore), Jul 3, 2008 by Brendan Kearney

David Brooks considers himself a Maryland resident.

The 47-year-old historic preservation consultant and landlord lists a Columbia, Maryland address as his home, has his car registered and insured in Maryland, is registered to vote in Maryland and pays taxes in Maryland.

But his health insurer since 2003, the Maryland Health Insurance Plan, terminated his membership last September on the grounds that he is not a state resident -- a requirement for coverage.

After a series of legal battles with the Maryland Insurance Administration and MHIP, which covers those who are "medically uninsurable" and is an independent unit within MIA, Brooks is back on the plan, thanks to a temporary restraining order issued last month.

But that order expires on Wednesday, July 9, and the trial in Brooks' latest lawsuit against MHIP is scheduled for July 22, almost two weeks later.

The parties appeared in court Wednesday afternoon to decide whether Brooks -- who takes a long list of medications for his osteoporosis, depression, narcolepsy and anxiety -- should be covered during the interim.

In arguing for a preliminary injunction, Brooks, who cares for his mentally disabled brother, testified that he is "terrified" at the prospect of a medical issue arising while he is uncovered.

"I believe I would lose my and my brother's future," said Brooks. "All of my savings and my property would be bankrupt from the medical bills."

MHIP has maintained that Brooks is actually a resident of Washington, D.C., where he owns three properties.

Brooks testified that he maintains an office in one of the properties and rents the others to residential and commercial tenants. He admitted that he has slept overnight at the T Street NW office when business or maintenance of the properties keeps him.

At yesterday's hearing, Kevin Kendrick, an assistant attorney general who represents MHIP, asked Brooks about his use of the address for the purpose of credit cards, checking accounts and medical forms.

Brooks testified that he had used the T Street address for certain mail because, as a result of his brother's traumatic brain injury, he has misplaced or mishandled important financial papers in the past. Brooks said that he received his MHIP bills at his office for a time.

At one point, Kendrick asked why Brooks' brother's Social Security payments, for which Brooks is now legally responsible, were sent to the Columbia address.

"Because it was after you tried to take my insurance away," Brooks retorted.

Residency required

The pending suit in Baltimore City Circuit Court, which seeks a declaratory judgment that Brooks is a state resident and MHIP is obligated to cover him, along with at least $50,000 in damages, is just the latest legal action Brooks has pursued.

He filed suit against MHIP in Howard County District Court in November 2006 after the plan declined to cover certain prescriptions. Two weeks later he filed suit against MIA in Howard County Circuit Court for failing to comply with his Public Information Act requests regarding the circumstances surrounding the denial of coverage. He lost both of those cases, and later was terminated from the plan based on residency.

He appealed the district court case to the circuit court and won, but MHIP refused to reinstate him.

Meanwhile, Brooks had filed suit against MHIP on Sept. 26, 2007, two days after notice of his termination was issued. He appealed the termination and furnished MHIP with further proof, some of which was admitted as evidence in Wednesday's hearing, of his Maryland residency. But in a Nov. 15 letter, MHIP Executive Director Richard Popper denied the appeal.

In a second amended complaint filed in May 2008, Brooks challenged whether this process violated his state and federal constitutional rights to due process.

In response to questioning Wednesday, Popper admitted there had neither been an opportunity for a hearing in the case nor was there a regulatory provision for one.

To demonstrate that MHIP's reason for terminating Brooks was pretextual, his lawyers, Howard J. Schulman and Daniel P. Doty, pointed to an e-mail exchange between Mary Nevius, an assistant attorney general who represents the MIA, and a Washington, D.C. government employee.

"We may be able to close out a number of troublesome matters if we can prove that this guy lives in D.C., and a number of people at the MIA will be made very happy by that," Nevius wrote. "We will be glad to repay the favor if you even [sic] need anything in Maryland..."

On the stand Wednesday, Nevius testified that the exchange took place within the context of Brooks' PIA case, not his eligibility claim.

Kendrick further argued Brooks has or will receive all the prescriptions he needs before July 9 and would suffer only monetary damages, not irreparable harm, if he is not covered in the two weeks before trial.

Baltimore City Circuit Judge Albert J. Matricciani Jr. said he will consider the motion for a preliminary injunction overnight and will hear further argument Thursday morning, and will potentially preside over a trial in the matter.