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).
Read here our recent advisory about the Deficit Reduction Act 2005

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 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, of Schiller & Flexner LLP's Fort Lauderdale office. Co-counsel are Louis Bullock, successful plaintiffs' counsel in the Oklahoma children's health care case, James Eiseman, Jr. and Thomas K. Gilhool 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.