Judge : Texas Medicaid Fails Children


August 31, 2000

Texas' failure to live up to a 1996 agreement to make major improvements to its Medicaid program is hurting poor children, a federal judge has found in ruling that the state has not adequately cared for 1.5 million low-income youngsters.

U.S. District Judge William Wayne Justice says the state was not adequately providing dental care, regular checkups, transportation to doctors or information about what services are available to children in Medicaid, despite its promise four years ago to make changes.

The decision immediately became fodder for the presidential candidates, with Democrat Al Gore criticizing Republican rival George W. Bush, the governor of Texas.

Democrats planned to highlight the ruling Thursday in a number of ways, including in paid advertising, sources said.

Bush, criticizing the judge as "an activist, liberal judge," dismissed the Democratic assertions and defended his record. "We are doing everything in our power to take care of the disadvantaged children of the state of Texas," he told reporters aboard his campaign plane.

"The reason the Gore campaign is pounding me ... is they're trying to go on the issue on which they are extremely vulnerable," Bush said. He criticized the federal government for refusing to grant waivers that would have made the process easier for Texas.

Bush's spokeswoman, Karen Hughes, said that in many cases, parents have refused the state's offer to provide Medicaid coverage for their children.

Gore's campaign cited the ruling as an example of what it says it Bush's lack of leadership on child health issues.

The vice president regularly complains that there are 1.4 million Texas children without health insurance and that Bush tried to limit eligibility for a new program aimed at getting health care coverage to the children in working poor families.

Bush and top aides traveling with him Wednesday were caught off guard by the decision. He told reporters that he had not reviewed the order by Justice, who is a Democrat.

"But we have a good record signing people up to Medicaid," Bush said, without mentioning the services children get once they are signed up - the subject of the case.

The state attorney general plans to appeal. The ruling gives the state 60 days to come up with a solution - making it due just before the Nov. 7 presidential election.

Gore declined to comment, saying he hadn't read the decision. But others weighed in for him.

"Governor Bush has an obligation to explain that strong and very troubling court decision," said running mate Joseph Lieberman.

Bush's campaign said he is committed to improving the program and pointed the finger at the Democratic administration that preceded him. Bush was elected in 1994. The class-action lawsuit that sparked the latest ruling was filed in 1993.

"This is a decade-long challenge that Texas is addressing," said spokesman Dan Bartlett. "We are aggressively working to provide health care to those children."

The state signed a consent decree promising change in 1996. The court issued a ruling Aug.14 saying the state had failed to fix the program, which serves about 1.5 million Texans under age 18. Another 1.4 million are uninsured, about 600,000 of whom are eligible for Medicaid but not enrolled.

Children's advocates said they want to move beyond court fights and political battles.

"This is about the children of the state of Texas," said state Rep. Garnet Coleman, vice chairman of the House Public Health Committee. "The time that we spend on fighting a lawsuit we could spend on making sure that the children who have not seen a doctor have that opportunity."

Lisa McGiffert, a policy analyst with the Austin office of Consumers Union, an advocacy group, agreed the state's energy could be better spent. "I guess when I hear that there's going to be an appeal that says to me that their efforts are going to go to defending what they're doing rather than changing it or trying to do it better," she said.

In his 175-page ruling, Justice said Texas had failed to inform families about the benefits available - even when they asked. About 1 million kids never saw a dentist last year, and most who did were there for emergency treatment - such as an inability to eat - that could have been prevented.

The court also found major problems with transportation programs and for children enrolled in health maintenance organizations and other managed care plans.

"A poor and often-isolated population should not be robbed of their rights to services," wrote Justice.

Like other states, Texas is in the process of moving its Medicaid population into managed care, which is cheaper and has a reputation for providing strong preventive care.

But the court found that the checkups "were grossly inadequate and incomplete" - taking just 12 to 20 minutes when a proper exam would take an hour.

The ruling also concluded that Texas failed to address the needs of about 13,200 abused and neglected children under state supervision.

Bartlett said the state had added staff and increased budgets in an attempt to reach more children and provide more families with transportation. But the court found that much of the data used to show improvement was inflated.

Bush defends Medicaid in Texas after judge drops bombshell

JOHN W. GONZALEZ, Houston Chronicle

August 30, 2000

In Houston, it took more than a year for a disabled youth to replace the wheelchair he had outgrown. In Dallas, the shortage of dentists serving the poor is so severe that only patients with rotten teeth get prompt attention. In the Panhandle, migrant workers often go unaware of their eligibility for free health care.

These were some of the Medicaid problems in Texas described by Senior U.S. District Judge William Wayne Justice in his latest bombshell ruling -- this time in a class action lawsuit over indigent medical care. The judge concluded that more than 1 million Texas children are poorly served by programs that are inadequately funded and poorly managed.

The ruling -- from the same judge who controlled Texas prisons and mental health institutions for decades -- immediately set off a rhetorical skirmish in the presidential campaign. Democratic Vice President Al Gore assailed the performance of Republican Gov.George W. Bush, who defended his efforts to extend health care to needy families.

"We've got a good record signing kids up for Medicaid. We intend to continue to do so," Bush said, adding, "We're a compassionate state."

Justice's scathing, 175-page ruling left Texas lawmakers wondering what they might have to do to remedy Medicaid problems by Oct.13, as the judge demanded. It also sent state lawyers scurrying to formulate a planned appeal due on Sept. 9. If a stay were granted, remedial action could be postponed indefinitely.

"We are disappointed with the judge's ruling and believe it does not represent a fair or accurate portrayal of Texas' efforts to provide health care to children on Medicaid," said Bush campaign spokesman Dan Bartlett.

"Based upon where the state was in 1993, when the suit was filed, and where we are today, we've made dramatic progress and will improve upon that progress in the areas of outreach and enrollment efforts," Bartlett said.

Attorney General John Cornyn was unavailable for comment, but spokeswoman Andrea Horton said, "We believe neither the law nor the facts support Judge Justice's decision." And Bush spokeswoman Karen Hughes called the ruling the product of a "liberal activist judge."

Justice assailed the state's failure to provide medical and dental checkups to many eligible adults and children and he criticized the state's efforts to make services known to them. Calling its data "inflated and inaccurate," Justice said the government exaggerated the number of people contacted and treated.

Further, Justice said managed care was inhibiting access to treatment by specialists and for mental health and pediatric patients. Justice also cited logistical problems including poorly publicized and operated transportation services, an inadequately staffed toll-free help line and long delays in providing supplies to patients.

Justice also found a lack of medical services and outreach to migrant families in the Lubbock area and he criticized as inadequate the help offered to abused and neglected children statewide.

A lack of dentists has caused major problems in some areas, Justice added. He said Dallas area experts testified that a local shortage was so critical that the only children getting treatment through Medicaid were those with abscesses and rotten teeth.

The lawsuit was filed in 1993 on behalf of 1.5 million indigent children entitled to health benefits through the Early Periodic Screening, Diagnosis and Treatment program, also known as "Texas Health Steps."

A consent decree was approved in 1996 but plaintiffs returned to court claiming the decree was ignored. Justice agreed, despite the state's claims that programs were continually improved.

"The increased efforts have resulted in notable advancements in all areas of the program's performance, from outreach to numbers of eligibles served to staff resources allocated, making it one of the most successful in the country," a brief filed by Cornyn said.

Further defending the state's efforts, Cornyn claimed :

* The medical checkup participation rate increased from 29 percent in 1993 to 66 percent currently;

* Program staff has grown from 10 in 1993, when the Medicaid program was transferred to the Texas Department of Health, to almost 600 workers now.

* The program made almost 5 million outreach contacts with clients in 1999 -- about three times a year for each client.

* From 1993 to 1999, the Medicaid transportation program expenditures increased from $19 million to $39 million.

* The dental program's expenditures have grown from $87 million in 1993 to $140 million now.

* Some 87 percent of Medicaid recipients recognize the Texas Health Steps name; and

* The participation rate for eligible teens rose from 37 percent in 1996 to 55 percent in 1998.

Nonetheless, Justice's ruling said there was ample proof that the decree was violated.

Plaintiff's attorney Susan Zinn of San Antonio said she was delighted by the ruling.

"I think he's trying to say that the Texas Medicaid program is not following federal law that Congress established in 1989. It's more than 10 years later and they still haven't come through," she said.

Some of the remedies lie with the Legislature, whose next regular session is in January. A special session appears unnecessary at this time, state officials said, but questions about future funding are already being posed.

"The dental program is underfunded. The case management program is underfunded," Zinn said.

The Legislature's decision in 1999 to establish a moratorium on expansion of the managed care programs under Medicaid was appropriate, Zinn added.

"Judge Justice's order confirms that Texas has a long way to go before more expansion of the managed care program would be warranted, because there are so many problems," Zinn said.

Yet, money won't solve all the woes, a key lawmaker said.

"There are lots of things we know we don't do enough of -- public schools, teachers' salaries, children's health insurance, nursing home (reimbursement) rates," said Senate Finance Chairman Bill Ratliff, R-Mount Pleasant.

"The problem I have of federal judges saying `you're not doing enough' is one day they need to be in the shoes of the people paying for it," Ratliff said.

Austin Bureau chief Clay Robison contributed to this story.

Taking Credit for Patients' Rights Where It's Not Necessarily Due

JIM YARDLEY, The New York Times

October 18, 2000

In tonight's presidential debate, Gov. George W. Bush presented himself as a champion of a patients' bill of rights in Texas, saying he "brought Republicans and Democrats together to do just that in the state of Texas." He made the same assertion in television commercials during the Republican primaries.

But Mr. Bush was rarely regarded as a leader on the issue in Texas, and his record is mixed.

"If he wants to say, `I reformed the tort system,' then that's fair game," Reggie James, director of the advocacy group Consumers Union in Texas, has said. "But if he wants to say he reformed health care, that's a different animal. The reforms happened despite him, not because of him."

In 1995, the State Legislature approved a patients' protection bill that would have required annual report cards for health maintenance organizations and would have forced them to provide necessary emergency- room care. Mr. Bush vetoed the measure, but he did instruct the state's insurance commissioner to draft rules covering some aspects of the bill, earning praise from some consumer advocates who had criticized his veto.

In 1997, lawmakers again pushed for a patients' bill of rights. In the debate, Mr. Bush spoke of supporting a provision that would make Texas the first state to allow patients to sue any H.M.O. for malpractice if it denied necessary care.

But during the 1997 legislative session, Mr. Bush was not initially so supportive of the lawsuit provision. He warned of a veto and came into conflict with the bill's sponsor, Senator David Sibley, one of his staunchest Republican allies. Mr. Sibley even complained on the Senate floor about the governor's staff.

"I can't make them happy no matter what I do, unless I completely gut the bill," said Mr. Sibley, who now credits Mr. Bush for being supportive of other patients' protection measures in 1997.

Many Democrats described Mr. Bush as having little involvement on the overall bill.

Representative Patricia Gray, a Democrat, sponsored a bill requiring H.M.O.'s to allow women direct access to their obstetrician-gynecologists without having to see a "gatekeeper" doctor first. Mr. Bush mentioned the provision in the debate, but Ms. Gray has said he and his staff did little to help the bill.

The Legislature approved the lawsuit provision by a wide margin. Mr. Bush allowed the provision to become law without his signature.

pearly gates