Public Interest Law Center of Philadelphia

CHILDREN'S HEALTH CARE

For over a decade, the Law Center and its clients have devoted substantial financial and human resources to ensuring that states throughout the nation provide prompt and effective medical services for poor children in accordance with federal law. In Title XIX of the Social Security Act, Congress imposed an explicit obligation on states to furnish medical assistance to children "with reasonable promptness to all eligible individuals." We have provided technical assistance and advice to the American Academy of Pediatrics (AAP), its state chapters and to chapters of the American Academy of Pediatric Dentists (AAPD).

We have also provided training in the uses of Title XIX to the AAP's conference of State Presidents and keynoted the Academy's National Advocacy Conference convened by AAP's, School Health Section and Advocacy Network, as well as to the AAP leadership in the Middle Atlantic, South Central and Western states.

Each state participating in Medicaid, in exchange for the federal government paying a percentage of the cost, agrees promptly to provide all medical services necessary to eligible children, including comprehensive preventive care, and agrees to set rates at the level necessary to assure sufficient doctors and dentists participate. In the cases brought by the Law Center, plaintiffs allege and prove that state officials are not complying with these obligations. We are currently litigating cases in Michigan, Oklahoma and Florida. These cases build on our successful suit in Pennsylvania settled in 1995.

LAW CENTER APPEALS STATE DECISION TO WITHHOLD ESSENTIAL MEDICAID INFORMATION
Law Center attorney Jim Eiseman recently appealed a refusal by the state's Department of Public Welfare (DPW) to provide information about the rates DPW pays to insurance companies to provide dental care to children enrolled in Medicaid in southeastern Pennsylvania. Publicly available information shows that a dismally low number of children actually receive medical care even though the federal law requires it. A recent report gave Pennsylvania a grade of D (up from an F) for its dental care.

Information about the rates that dentists are offered and how they are set is essential because unreasonably low rates deters dentists from providing service to Pennsylvania’s 1 million children enrolled in Medicaid. Low rates also violate the Medicaid law, which requires that the rates be set high enough to ensure that Medicaid recipients can easily access care.

All substantive parts of Eiseman's request were denied by DPW, which asserted that the rates are "trade secrets" and that revealing them would disrupt the Department's ability to negotiate with Medicaid providers. Eiseman appealed the decision with Pennsylvania's Office of Open Records. At least five insurance companies have intervened to protect the secrecy of the information.

Public Interest Law Center Briefs Supreme Court on Obstacles to Medicaid Access
On Friday, August 5th, Law Center attorney James Eiseman and Tulsa-based attorney Louis Bullock today submitted an amicus brief to the U.S. Supreme Court in the case Douglas v. Independent Living Center of Southern California, documenting for the Court how inadequate Medicaid payment rates for doctors and dentists have effectively denied health care to people enrolled in Medicaid. Writing on behalf of the American Medical Association, the American Dental Association, the American Academy of Pediatricians, and other national associations of doctors, the brief argues that in order for the Medicaid Act’s requirement of equal access to health care to be more than an empty promise, the Justices must protect the rights of private citizens to bring lawsuits against States that set Medicaid rates at levels too low for healthcare providers to participate in the system.

In Douglas, the Supreme Court will decide whether beneficiaries and healthcare providers are allowed to sue states under the Supremacy Clause of the U.S. Constitution to challenge a state’s Medicaid payment rates when they are set too low to ensure access to care. Such low payments violate the “equal access” of the federal Medicaid laws and under the Supremacy Clause, state and local laws that violate federal law are preempted. The legal issue arises because other Supreme Court cases have left uncertain whether the “equal access” clause can be enforced directly; thus the Supreme Court is being asked to determine whether a party can use one avenue to enforce a statute when another avenue is likely closed off. If Medicaid providers and beneficiaries are barred using any theory to sue to protect themselves, federal Medicaid law will be drastically weakened, leaving room for states to slash their budgets at the expense of the health of poor children.

The Law Center and other healthcare advocates have brought many similar lawsuits alleging that States, by failing to pay healthcare providers enough, have violated Medicaid Act provisions meant to ensure equal access, and the Law Center was sought out by the AMA and the other associations for its long history of fighting to ensure healthcare for vulnerable populations. Read more about the case and the brief.
Read the full brief.

PLAINTIFFS IN FLORIDA MEDICAID TRIAL FILE FOR PRELIMINARY INJUNCTION

On Tuesday, March 8th, the plaintiffs in a case on behalf of nearly two million Florida children enrolled in or eligible for Medicaid filed a motion for a preliminary injunction, asking the court to provide the plaintiffs preliminary relief while the rest of the case is tried.

Based on clear admissions by senior Florida Medicaid officials during testimony to date in plaintiffs’ case, the motion asks the federal court 1) to enjoin Florida's Medicaid program from continuing to use purely budgetary considerations in setting rates paid to physicians and instead to set those rates in accordance with federal statutes mandating equal and prompt access to care; and 2) to set rates paid to dentists at the 50th percentile of usual and customary charges in the private market.

Law Center attorney Jim Eiseman and a team of attorneys from the Ft. Lauderdale office of Boies, Schiller and Flexner LLP led by Stuart H. Singer and Carl E. Goldfarb are representing the plaintiffs in the case.

The preliminary injunction motion points out admissions by senior Florida Medicaid officials that rates paid dentists for service to Medicaid patients have only been increased 13% in the last 24 years, and over the same period dentists' costs have increased at more than four times that rate. As a result, only one in five children enrolled in Medicaid in Florida today receives even minimal dental care. The motion points out clear evidence in the record that the levels of physician and dentist fees have left hundreds of thousands of Florida children enrolled in Medicaid without adequate and timely dental or medical care, causing irreparable harm to the children and ultimately costing the State money in future healthcare costs.

"These preliminary measures," the motion concludes, "are necessary to protect Florida children's civil rights under the Medicaid Act pending final resolution of this lawsuit."
Read the motion.

TESTIMONY CONTINUES IN FLORIDA MEDICAID TRIAL
As of November 5, 2010, two dozen witnesses have taken the stand in a case on behalf of nearly two million Florida children enrolled in or eligible for Medicaid, over 28 days in court since the beginning of trial on December 7, 2009.

The Law Center’s Jim Eiseman, along with a superb team of attorneys led by Stuart H. Singer and Carl E. Goldfarb from the Ft. Lauderdale office of Boies, Schiller and Flexner, LLP have prepared and are trying the case in which plaintiffs contend that the state of Florida is not fulfilling its obligations under federal law as a participant in Medicaid. The state is obligated to make medical and dental care services available to children enrolled in Medicaid with reasonable promptness, and the state must also set reimbursement rates for doctors and dentists at a sufficiently high level that enrolled children have access to medical and dental services equal to that of insured children in the same area.

In the most recent trial session in October 2010, the court heard from three doctors and one state official. The court first heard testimony from Dr. Adam Fenichel, a pediatric orthopedic surgeon who practices in Winter Park, Florida. Dr. Tommy Schechtman, the owner of a pediatric primary care practice in Palm Beach County with eight pediatricians across three offices, testified next. Following Dr. Schechtman was Dr. Delores Tamer, a pediatric cardiologist from Miami and former medical director of the North Miami office of Children's Medical Services, a division of Florida's Department of Health which provides care to children with complex medical problems, most of whom are enrolled in Medicaid. The final witness of the week was Nathan Lewis, Chief of the Program and Policies section of the Access Florida Bureau in the Department of Children and Families, which implements policies for Medicaid eligibility.

It is expected that Mr. Eiseman and the rest of the plaintiffs' legal team will return to court November 15, 2010 for what they expect will be the next to last week of testimony in the plaintiffs' case in chief. The defendants' case is expected to start sometime thereafter. It is expected that the trial will continue a few trial days at a time through 2011. Boies, Schiller and Flexner has contributed a tremendous amount of lawyer time and other resources to this effort on a pro bono basis. The Law Center and our clients are extremely grateful for the Boies firm’s generosity.

Read more about the case...

OKLAHOMA CHILDREN’S ADVOCATES FAIL TO REVIVE MEDICAID CASE ON GROUNDS OF A CLARIFICATION IN THE HEALTH CARE REFORM LAW
June 8, 2010 -- The Law Center and our partners filed a motion in the Tenth Circuit asking the court to revive a children's Medicaid case that we won in 2004 after 19 days of trial, then lost on appeal in the Tenth Circuit. The motion is based on a provision of the health care reform act that clarified that the interpretation of the Medicaid law used by the Tenth Circuit was in fact a misinterpretation of the law. The day after the motion was filed, the Court ordered the defendants, state officials responsible for Oklahoma’s Medicaid program, to respond by June 29, 2010. We partnered with our good friends Bullock, Bullock & Blakemore in Tulsa, Oklahoma and Phil Lebowitz and Erin Duffy, a health care partner and associate at Duane Morris in Philadelphia to prepare the motion. Unfortunately, however, the Court of Appeals denied the motion on July 20, 2010 finding that there were not “extraordinary circumstances” sufficient to justify relief and that there is no indication that Congress intended the act to operate retroactively.

The case was brought by the Oklahoma Chapter of the American Academy of Pediatrics, the Tulsa Community Action Program and a class of children and their families to improve Oklahoma's performance record with regard to providing medical services to its poorest children. The 2004 trial was the first time that the full range of a state's delivery of medical and dental care had been tried on its merits. The district court ruled in favor of the plaintiffs and, among other relief, ordered that Oklahoma raise rates paid to physicians to a level sufficient to attract enough providers that are willing to provide services; and that the state perform a study to determine what those rates would be.

Rule 60(b)(6) Motion

Exhibits to Rule 60(b)(6) Motion

Order denying Rule 60(b)(6) Motion

HEALTH CARE REFORM PROVISION CLOSES LOOPHOLE CREATED BY COURT INTERPRETATIONS
Most Americans now know that the health care reform legislation, signed into law in late March 2010, will prevent insurers from denying coverage based on pre-existing conditions and will, eventually, require everyone to have coverage by imposing a tax on those who fail to do so. One provision that is less heralded, but equally powerful, removes an obstacle that prevented people who are harmed when a state fails to deliver medical assistance to them from enforcing the Medicaid law in federal court.

The problem arose when Judge Posner in the Seventh Circuit suggested that the definition of “medical assistance” that states must make available under the law might not mean the actual care and services that are required in hundreds of pages of statutory language; but instead might mean only that a state must pay any doctor or other provider who does deliver care.

The consequences of this interpretation were immediate and severe: in 2005 the Law Center, its partners Louis and Patricia Bullock and our clients in Oklahoma, persuaded a trial judge that the state’s 400,000 low income children enrolled in Medicaid were not receiving the medical and dental care to which they were entitled. The court of appeals acknowledged that this may be so, but nonetheless held that this did not matter; the only fact that mattered was whether the doctors who did provide services to low income children were paid. Other courts of appeals soon followed Judge Posner’s suggestion, dismissing all or part of other lawsuits around the country.

The reform came in a technical amendment. It clarifies the definition of "medical assistance" to say that the term includes not only "financial assistance", but also "the care and services themselves." The legislative history makes clear that the law is specifically designed to overturn the court of appeals interpretations. Click here to read a report by the National Health Law Program and the National Senior Citizen's Law Center that details the legislative history.

The Law Center has long pursued its goal of securing medical and dental care for low income children in Pennsylvania and the nation (including our current case on behalf of nearly 2 million children in Florida). This small provision in the Health Care reform act removes a significant obstacle in progress toward achieving that goal.

PROGRESS IN FLORIDA MEDICAID CASE - CLASS CERTIFIED, NEW TRIAL DATE SET FOR EARLY DECEMBER

September 30, 2009 -- The Law Center's clients in a Medicaid case on behalf of more than one million children in Florida achieved two preliminary victories when the judge issued orders certifying a class that includes children who are enrolled in Medicaid as well as those who are eligible for Medicaid but are not yet enrolled in the program. The judge also denied the defendants' motion for summary judgment, paving the way for a trial beginning December 7, 2009.

In his order on the motion for class certification, the judge concluded, among other things, that Florida has a responsibility to attempt to enroll eligible children. He relied on federal regulations which require the state to “conduct outreach to all eligible individuals.”

In his order denying the motion for summary judgment, the judge made the significant decision not to rely on decisions in other circuits in which the courts had determined that Medicaid only requires states to reimburse doctors and dentists for care they give to children. Instead, the judge held that the law in the Eleventh Circuit requires states to ensure that medical and dental care is actually being promptly provided to children.

Our clients allege that Florida fails to deliver medical and dental care to children as required by federal law under the Medicaid program. Children receiving Medicaid in Florida cannot find doctors to treat them, causing them to miss annual screenings. The Law Center has been involved in similar lawsuits in other states, including Michigan, Oklahoma and Pennsylvania. The Florida case is unusual, as attorney Jim Eiseman stated: "very few Medicaid cases go to trial where actual factual findings against the state are made."

According to the Kaiser Family Foundation, Florida pays doctors the seventh-lowest rate in the country to see Medicaid patients. For instance, Florida pays doctors $32.56 for the most common office visit for a child covered by Medicaid - less than half the amount a private insurer pays, and considerably less than the government pays doctors for the same visit for a patient insured by Medicare. Class members have found that the doctors, particularly specialists, who do accept Medicaid quickly become overbooked, making it extremely difficult to access treatment. "There are enormous parts of the state where there is no access to care and people have to delay treatment. There are situations where kids have had to wait a month to have a scan for a tumor growing on the spine, operations are delayed a year," said Stuart Singer, a partner in Boies, Schiller & Flexner, the Law Center’s co-counsel in the case.

Read more about the case

LAW CENTER SETTLES MICHIGAN LITIGATION: WESTSIDE MOTHERS V. OLSEZEWSKI
On August 13, 2007, Law Center attorneys settled an eight-year-old case on behalf of one million Michigan children enrolled in Medical Assistance. The settlement preserved significant expansions made in 2006 to Michigan's highly-regarded Medicaid dental program and significant increases in reimbursement rates for preventative medical care (read more about the 2006 increases below). The settlement also requires the state for the first time to collect and produce data regarding children's access to primary and specialty care. This data includes information on the number of children actually seen by each practitioner and the length of time each child must wait to obtain an appointment with a primary or specialty provider. Finally, the settlement provides for ongoing consultation and dialogue among representatives of the plaintiffs and state officials. The plaintiffs in the case were the Michigan Chapters of both the American Academy of Pediatrics and the American Academy of Pediatric Dentists, Westside Mothers, a Detroit advocacy organization, Families on the Move, an organization of foster care parents, and a class of children and their families.

Jennifer R. Clarke, the Law Center's Executive Director, and lead counsel for the plaintiffs, hailed the agreement as an opportunity for the plaintiff groups and the state Department of Community Health to work collaboratively, using the data to obtain more resources for better care. For example, Ms. Clarke cited Michigan's Healthy Kids Dental Program, which currently covers only 25% of Michigan's children. According to Clarke, "the state estimates that it would only cost it $38 million to extend this nationally-recognized program to all of Michigan's children. This is a tiny fraction of the state's $9 billion Medicaid budget, but enormously important because otherwise, these children cannot find dentists who will see them. I am optimistic that with our decision to cooperate rather than litigate, we will jointly persuade the public and our legislature that this tiny investment will make a huge difference in the lives of many children."
Read the settlement agreement here
Table of October 2006 reimbursement rate increases
Map of Healthy Kids Dental Program expansion

LAW CENTER'S PENNSYLVANIA CASE INCREASED MEDICAID ENROLLMENT AND PERCENTAGES
The Law Center's Pennsylvania case, Scott v. Snider, begun in 1991 and settled in 1995, increased the number of children enrolled in the Medicaid program by nearly 300,000 and compelled the state to increase to 80 percent the proportion of enrolled Pennsylvania children age birth through six years who actually receive annually at least one comprehensive screening examination. The case also led to the creation of primary care case management systems in 60 of the state's 67 counties, and it quadrupled the payment for periodic, comprehensive medical examinations. In addition, it established for five years opportunities for structured joint and common assessments by plaintiffs and the responsible state officials of the requirement for delivery.

MICHIGAN: STATE MEDICAID OFFICIALS RAISE MEDICAID RATES AS WESTSIDE MOTHERS V. OLSEZEWSKI RETURNS TO DISTRICT COURT FOR THIRD TIME
In a September 1, 2006 bulletin, the Michigan Department of Community Health, Medical Services Administration, announced its intent to increase the reimbursement rates paid to providers serving children enrolled in Medicaid for preventative medicine visits and specific newborn care codes. This is an important step in the right direction toward the Law Center's goal in Westside Mothers v. Osezewski of improving access, delivery and quality of the health care for these children.
Read the September 1, 2006 announcement.

The Law Center filed Westside Mothers v. Olsezewski in 1999, representing the Michigan Chapters of both the American Academy of Pediatrics and the American Academy of Pediatric Dentists as well as a class of children, their families and several family organizations. At the request of the Law Center, Richard Berkman, a partner at Dechert LLP is participating in the case pro bono as lead counsel. Jennifer Clarke and Thomas K. Gilhool are the attorneys at the Law Center handling the case. Other Co-Counsel are Marilyn Mullane of Michigan Legal Services; Jane Perkins of the National Health Law Project; and Susan McParland of Michigan Association for Children with Emotional Disorders.

In 2000 the District Court dismissed the complaint, holding that the requirements of the Medicaid Act are not enforceable against state officials by the affected children or their doctors. It held that the Medicaid Act was not a law but rather a mere contract between two sovereigns that could not be enforced under the Supremacy Clause against state officers.

The Court of Appeals for the Sixth Circuit in 2002 disagreed, and handed the Law Center a resounding victory reversing the lower court's ruling.
Read the Sixth Circuit Opinion Here.

The state appealed the decision to the Supreme Court, but the Court elected not to review the case. On remand the District Court again dismissed the case, but on July 17, 2006, the Sixth Circuit returned the case to the District Court for the third time. The Sixth Circuit confirmed that most of the provisions of Medicaid Act pleaded in the amended Complaint are enforceable by these plaintiffs. The opinion interpreted the phrase "medical assistance" to mean financial assistance for the required care and services, rather than the substantive medical care. The Court permitted plaintiffs to amend their Complaint to allege that "Inadequate payments effectively deny the right to 'medical assistance. '" Finally, The Court dismissed a Count based on 42 U.S.C. 1396a (a)(30)(A), a provision which requires states to provide children enrolled in Medicaid the same access to doctors and dentists as that enjoyed by children with commercial insurance. The Court held that this provision was not enforceable by individual children and their providers.
Read the July 17, 2006 Sixth Circuit's Opinion here.

The plaintiffs filed an Amended Complaint on Oct. 11, 2006
Read the Amended Complaint

ORAL ARGUMENT HELD IN OKAAP vs. FOGERTY
Working with distinguished Tulsa civil rights attorneys, Louis and Patricia Bullock, the Law Center filed in 2001 OKAAP v. Fogarty to improve Oklahoma's performance record with regard to providing medical services to its poorest children. Since 1995, sixty percent of the children in Oklahoma enrolled in Medicaid and for whom one comprehensive medical examination was required under Title XIX had received none at all. Only ten percent of the children required to be furnished dental assessments and preventive dental care had received any. Our clients in this matter are the American Academy of Pediatrics, Oklahoma Chapter, the Tulsa Community Action Program, and a class of children and their families.

OKAAP v. Fogarty went to trial in April 2004. This was the first time that the full range of a state's delivery of its EPSDT had been tried on its merits. The district court ruled in favor of the plaintiffs and, among other relief, ordered that Oklahoma raise rates paid to physicians to a level sufficient to attract enough providers that are willing to provide services.
Read the Courts' Order.

An August 1, 2006 pleading filed by the Law Center and co-counsel cites testimony by Sara Rosenbaum, Professor of Health Law and Policy at George Washington University, who is "considered the nation's leading expert on that branch of Medicaid known as EPSDT." In support of a fee petition filed by plaintiffs, Professor Rosenbaum testified that the case "represents the first of its kind in more than three decades of EPSDT litigation." Professor Rosenbaum opined that the case is "singular in linking children's EPSDT access and provider payments." According to Professor Rosenbaum, the results were obtained in a case which "stands out, even among highly complex EPSDT cases" as on the "outer reaches" of complexity.

Our co-counsel, Louis Bullock, called it "the most complex" he has brought in 30 years of institutional reform litigation. The case involved 10 national expert witness and 20 local physicians as well as over 700 documentary exhibits.
Read the Plaintiffs' Proposed Findings of Fact Here.

Oklahoma has appealed the order. The Tenth Circuit Court of Appeals held oral argument September 25, 2006.
Read Plaintiffs-Appellants' Appeal Brief here
Read Plaintiffs-Appellants' Answer and Reply Brief here
Read Plaintiffs-Appellants' Supplemental Brief here

LAW CENTER PURSUES FLORIDA CASE ON BEHALF OF 1.6 MILLION CHILDREN ENROLLED IN MEDICAID
The Florida case, entitled Florida Pediatric Society v. Levine, was filed on November 21, 2005. Florida is one of five large states home to over forty percent of the U.S. Medicaid eligible population. About half the children born in Florida are Medicaid eligible at birth.

The Florida class action alleges that as of the year ending September 30, 2004 (the most recent for which statistics are available) 44 percent of eligible children receive no health care check ups and 75 percent no dental examinations, all of which are mandated by federal Medicaid law. Accordingly, more than 500,000 enrolled Florida children received no preventive health care services at all in 2003-4.

The Florida Chapter of the American Academy of Pediatrics, the Florida Academy of Pediatric Dentistry and a class of children and their parents are the plaintiffs.

Lead counsel bringing the case is Stuart H. Singer of Boies Schiller & Flexner LLP's Fort Lauderdale office. Co-counsel are Louis Bullock, successful plaintiffs' counsel in the Oklahoma children's health care case, and James Eiseman, Jr. of the Law Center.

The district court denied the defendants' motions to dismiss on January 12, 2007, holding that each of the statutes at issue create rights enforceable by plaintiffs. On April 24, 2007, the court denied Defendants' Motion for Reconsideration and to Certify Issues for Immediately Appeal on the same grounds.
Read the Court's Order denying defendants motion to dismiss.
Read the Court's Order denying defendants motion for reconsideration and clarification.

ADVISORY SHOWS THAT DEFICIT REDUCTION ACT OF 2005 DOES NOT ELIMINATE EPSDT

February 2006 -- Some claimed that the Deficit Reduction Act of 2005, enacted in February 2006, eliminated the children’s Medicaid statute regarding EPSDT, around which our cases revolve. The Law Center issued this legal opinion, at the request of the American Academy of Pediatrics, that showed that the law did not eliminate EPSDT.

Read our advisory about the Deficit Reduction Act of 2005