Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 1 of 145
BENCH,RWS2,STAYED
U.S. District Court Eastern District of TEXAS [LIVE] (Paris) CIVIL DOCKET FOR CASE #: 3:93−cv−00065−RWS

Frew, et al v. Traylor, et al Assigned to: District Judge Robert W. Schroeder, III Demand: $0 Case in other court: USCA, 05−41798
15−40229 Cause: 42:1395 HHS: Adverse Reimbursement Review
Plaintiff

Date Filed: 09/01/1993 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: Federal Question

Jeneva Frazar as next friend of her minor children James Curtis Brown, Crystal Noelevol Brown, Jeremiah DeMark Phillips, Russell Kline Walton and Dominique Shantel Frazar TERMINATED: 02/17/1994

represented by Sharon E Reynerson Lone Star Legal Aid − Paris 164 SE 6th Street 5th Floor Paris, TX 75460 Lamar 903/785−8711 Fax: 19037855990 Email: sreynerson@lonestarlegal.org TERMINATED: 02/17/1994

Susan Finkelstein Zinn Attorney at Law P.O. Box 15126 San Antonio, TX 78212−5126 210/734−0425 Email: szinn@sbcglobal.net TERMINATED: 08/14/2014

Timothy Borne Garrigan Stuckey Garrigan & Castetter 2803 North Street PO Box 631902 Nacogdoches, TX 75963−1902 936/560−6020 Fax: 19365609578 Email: tim2@sgclaw.org ATTORNEY TO BE NOTICED

Plaintiff
James Curtis Brown TERMINATED: 02/17/1994

represented by Jane Kathryn Swanson Law Offices of Jane K. Swanson 1408 Bentwood Rd. Austin, TX 78722−1016 512−220−0678 Email: jks@sbcglobal.net TERMINATED: 04/04/2017

Jeffrey S Levin Texas Rural Legal Aid PO Box 1658 114 East 7th St Plainview, TX 79072 Hale 806/293−2625 Fax: 806/293−2625 TERMINATED: 07/31/1996

Sharon E Reynerson

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(See above for address) TERMINATED: 07/01/1996

Susan Finkelstein Zinn (See above for address) TERMINATED: 02/17/1994

Timothy Borne Garrigan (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Crystal Noelevol Brown TERMINATED: 02/17/1994

represented by Jane Kathryn Swanson (See above for address) TERMINATED: 02/17/1994 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey S Levin (See above for address) TERMINATED: 07/31/1996

Sharon E Reynerson (See above for address) TERMINATED: 07/01/1996

Susan Finkelstein Zinn (See above for address) TERMINATED: 08/14/2014

Timothy Borne Garrigan (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Jeremiah DeMark Phillips TERMINATED: 02/17/1994

represented by Susan Finkelstein Zinn (See above for address) TERMINATED: 02/17/1994 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jane Kathryn Swanson (See above for address) TERMINATED: 05/31/2017

Jeffrey S Levin (See above for address) TERMINATED: 07/31/1996

Sharon E Reynerson (See above for address) TERMINATED: 07/01/1996

Timothy Borne Garrigan (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Russell Kline Walton TERMINATED: 02/17/1994

represented by Susan Finkelstein Zinn (See above for address) TERMINATED: 02/17/1994 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Plaintiff Dominique Shantel Frazar TERMINATED: 02/17/1994
Plaintiff Linda Frew as next friend of her minor child Carla Frew

Jane Kathryn Swanson (See above for address) TERMINATED: 05/31/2017
Jeffrey S Levin (See above for address) TERMINATED: 07/31/1996
Sharon E Reynerson (See above for address) TERMINATED: 07/01/1996
Timothy Borne Garrigan (See above for address) ATTORNEY TO BE NOTICED
represented by Sharon E Reynerson (See above for address) TERMINATED: 02/17/1994
Susan Finkelstein Zinn (See above for address) TERMINATED: 08/14/2014
Timothy Borne Garrigan (See above for address) ATTORNEY TO BE NOTICED
represented by Susan Finkelstein Zinn (See above for address) TERMINATED: 08/14/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Edward Bradbury Cloutman , III Cloutman & Cloutman, L.L.P. 3301 Elm Street Dallas, TX 75226−2562 214/939−9222 Fax: 12149399229 Email: crawfish11@prodigy.net TERMINATED: 08/23/2006
Jane Kathryn Swanson (See above for address)
Jeffrey S Levin (See above for address) TERMINATED: 07/31/1996
John Robert Heard Heard & Smith 3737 Broadway St Suite 310 San Antonio, TX 78209−6552 210/820−3737 Fax: 12108203777 Email: cdelacruz@heardandsmith.com TERMINATED: 09/29/2015
Sharon E Reynerson

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(See above for address)

Timothy David Craig Stuckey Garrigan & Castetter 2803 North Street PO Box 631902 Nacogdoches, TX 75963−1902 936−560−6020 Fax: 936−560−9578 Email: timothykraig@gmail.com ATTORNEY TO BE NOTICED

Timothy Borne Garrigan (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Carla Frew

represented by Jane Kathryn Swanson (See above for address)

Jeffrey S Levin (See above for address) TERMINATED: 07/31/1996

John Robert Heard (See above for address) TERMINATED: 09/29/2015

Sharon E Reynerson (See above for address) TERMINATED: 07/01/1996

Susan Finkelstein Zinn (See above for address) TERMINATED: 08/14/2014

Timothy David Craig (See above for address) ATTORNEY TO BE NOTICED

Timothy Borne Garrigan (See above for address) ATTORNEY TO BE NOTICED

Plaintiff All Plaintiffs

represented by Edward Bradbury Cloutman , III (See above for address) TERMINATED: 08/23/2006

Israel Morales Reyna Texas Rural Legal Aid 1719 Matamoros, P.O. Box 888 Laredo, TX 78042−0888 Webb 956/727−5191 Fax: 19567278371 TERMINATED: 07/31/1996

Jane Kathryn Swanson (See above for address)

Jeffrey S Levin (See above for address) TERMINATED: 07/31/1996

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Plaintiff Charlotte Garvin as next friend of her minor children Johnny Martinez, Brooklyn Garvin and BreAnna Garvin
Plaintiff Shannon Garcia as next friend of her minor children Andrew Garcia, Marisha Garcia, Stephen Sanchez and Allison Sanchez

Joaquin Amaya , Jr Center for Legal and Social Justice 2507 N.W. 36th Street San Antonio, TX 78228 210/431−5765 TERMINATED: 04/10/1996
John Robert Heard (See above for address) TERMINATED: 09/29/2015
Rodolfo David Sanchez DNA − People's Legal Services P O Box 306 Window Rock, AZ 86515 956−447−4801 Email: rsanchez@dnalegalservices.org TERMINATED: 07/31/1996
Susan Finkelstein Zinn (See above for address) TERMINATED: 08/14/2014
Timothy David Craig (See above for address) ATTORNEY TO BE NOTICED
Timothy Borne Garrigan (See above for address) ATTORNEY TO BE NOTICED
represented by Susan Finkelstein Zinn (See above for address) TERMINATED: 08/14/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Edward Bradbury Cloutman , III (See above for address) TERMINATED: 08/23/2006
Jane Kathryn Swanson (See above for address)
John Robert Heard (See above for address) TERMINATED: 09/29/2015
Timothy David Craig (See above for address) ATTORNEY TO BE NOTICED
Timothy Borne Garrigan (See above for address) ATTORNEY TO BE NOTICED
represented by Susan Finkelstein Zinn (See above for address) TERMINATED: 08/14/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Plaintiff CLASS MEMBERS
Plaintiff Nicole Carroll Class Representative

Edward Bradbury Cloutman , III (See above for address) TERMINATED: 08/23/2006
Jane Kathryn Swanson (See above for address)
John Robert Heard (See above for address) TERMINATED: 09/29/2015
Timothy David Craig (See above for address) ATTORNEY TO BE NOTICED
Timothy Borne Garrigan (See above for address) ATTORNEY TO BE NOTICED
represented by Timothy Borne Garrigan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Edward Bradbury Cloutman , III (See above for address) TERMINATED: 08/23/2006
Jane Kathryn Swanson (See above for address)
John Robert Heard (See above for address) TERMINATED: 09/29/2015
Susan Finkelstein Zinn (See above for address) TERMINATED: 08/14/2014
Timothy David Craig (See above for address) ATTORNEY TO BE NOTICED
represented by Susan Finkelstein Zinn (See above for address) TERMINATED: 08/14/2014
Timothy David Craig (See above for address) ATTORNEY TO BE NOTICED
Timothy Borne Garrigan (See above for address) ATTORNEY TO BE NOTICED

V. Defendant

represented by

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Richard Ladd Commissioner of the Texas Health and Human Services Commission in his official capacity TERMINATED: 11/05/2001

Allison V. Eberhart Office of the Attorney General − Defense Div 300 W 15th Street 7th Floor Austin, TX 78701 512−487−3320 Fax: 512−487−6586 Email: allison.eberhart@hhsc.state.tx.us ATTORNEY TO BE NOTICED

Gregory Scott Coleman Yetter Coleman, LLP−Austin 221 West 6th Street Ste 750 Austin, TX 78701 512/533−0123 Fax: 512−533−0120 Email: gcoleman@yettercoleman.com TERMINATED: 02/21/2003

Melanie D Plowman Alexander DuBose & Jefferson LLP − Austin 515 Congress, Suite 2350 Austin, TX 78701 512/482−9300 Fax: 512/482−9303 Email: mplowman@adjtlaw.com TERMINATED: 12/03/2004

Peter J Strelitz Segal McCambridge Singer & Mahoney, Ltd. − Austin 100 Congress Avenue Suite 800 Austin, TX 78701 512/476−7834 Fax: 512/476−7832 Email: pstrelitz@smsm.com TERMINATED: 06/01/2006

Defendant
Texas Health and Human Services Commission TERMINATED: 08/10/1994

represented by Allison V. Eberhart (See above for address) ATTORNEY TO BE NOTICED

Defendant
David Smith Commissioner of the Texas Department of Health, in his official capacity TERMINATED: 02/10/1997

represented by Allison V. Eberhart (See above for address) ATTORNEY TO BE NOTICED

Defendant
Texas Department of Health TERMINATED: 08/10/1994

represented by Allison V. Eberhart (See above for address) ATTORNEY TO BE NOTICED

Defendant All Defendants

represented by Sean Patrick Flammer Office of The Attorney General − Austin P O Box 12548, MC 066

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Austin, TX 78711−2548 512−475−4071 Fax: 512−320−0667 Email: sean.flammer@oag.texas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Allison V. Eberhart (See above for address) ATTORNEY TO BE NOTICED
Andrea Leyva Batista Office of The Attorney General − Austin P O Box 12548 Capitol Station Austin, TX 78711−2548 512−475−4102 Fax: 512−320−0667 Email: andrea.batista@oag.texas.gov ATTORNEY TO BE NOTICED
Edwin N Horne Attorney General's Office P O Box 12548 Capitol Station Austin, TX 78711 512/475−4066 Fax: 15123200667 Email: ed.horne@oag.state.tx.us TERMINATED: 09/22/2009
James Byron Eccles Attorney General's Office PO Box 12548 Capitol Station Austin, TX 78711 512/936−1400 Fax: 15123200667 Email: beau.eccles@texasattorneygeneral.gov TERMINATED: 06/09/2015
Jonathan F Mitchell Jonathan F. Mitchell Attorney at Law 11505 Georgian Oaks Dr. Austin, TX 78739 (703) 314−9276 Email: jfmitchell@mac.com TERMINATED: 01/20/2015 ATTORNEY TO BE NOTICED
Laura Alicia Barbour Texas Attorney General P O Box 12548 Capitol Station Austin, TX 78711−2548 512−463−0447 Fax: 512−320−0667 Email: laura.barbour@oag.texas.gov TERMINATED: 04/26/2017 ATTORNEY TO BE NOTICED
Linda Ann Halpern 9902 Brightling Lane Austin, TX 78750 512.917.1103

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Email: lahalpern@earthlink.net TERMINATED: 09/29/2015

Marianna Vishnevetsky Grayson Office of the Attorney General − Administrative Law Division P O Box 12548 Capitol Station Austin, TX 78711−2548 512/463−2120 Fax: 512/320−0667 Email: marina.grayson@oag.state.tx.us TERMINATED: 09/22/2009

Matthew F Stowe Howrey LLP − Houston 1111 Louisiana 25th Floor Houston, TX 77002−5242 512/936−1897 Email: matt.stowe@oag.state.tx.us TERMINATED: 06/01/2006

Richard E Salisbury Office of the Attorney General PO Box 12548 Capitol Station Austin, TX 78711−2548 512−936−1576 Fax: 512−499−0712 Email: richard.salisbury@texasattorneygeneral.gov

Defendant
Linda Wertz Texas State Medicaid Director TERMINATED: 08/20/2014

represented by Allison V. Eberhart (See above for address) ATTORNEY TO BE NOTICED

Gregory Scott Coleman (See above for address) TERMINATED: 02/21/2003

Melanie D Plowman (See above for address) TERMINATED: 12/03/2004

Peter J Strelitz (See above for address) TERMINATED: 06/01/2006

Defendant
Don Gilbert Texas Commissioner of Health and Human Services TERMINATED: 03/10/2003

represented by Allison V. Eberhart (See above for address) ATTORNEY TO BE NOTICED
Melanie D Plowman (See above for address) TERMINATED: 12/03/2004

Defendant
Dr Eduardo Sanchez Commissioner of Health TERMINATED: 08/20/2014

represented by Allison V. Eberhart (See above for address) ATTORNEY TO BE NOTICED

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Edwin N Horne (See above for address) TERMINATED: 09/22/2009

Defendant
Thomas Suehs Texas Health and Human Services Commissioner TERMINATED: 08/20/2014

represented by Allison V. Eberhart (See above for address) ATTORNEY TO BE NOTICED
James Byron Eccles (See above for address) TERMINATED: 06/09/2015

Defendant
M.D. Kyle L Janek TERMINATED: 09/30/2015

represented by Scott A Keller Office of the Texas Attorney General − MC 059 209 West 14th Street 7th Floor (MC 059) Austin, TX 78701 512−936−2725 Fax: 512−474−2697 Email: scott.keller@texasattorneygeneral.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Allison V. Eberhart (See above for address) ATTORNEY TO BE NOTICED

James Byron Eccles (See above for address) TERMINATED: 09/29/2015

Defendant M.D. David L Lakey

represented by Scott A Keller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Allison V. Eberhart (See above for address) ATTORNEY TO BE NOTICED

Edwin N Horne (See above for address)

Laura Alicia Barbour (See above for address) TERMINATED: 04/26/2017 ATTORNEY TO BE NOTICED

Defendant
Chris Traylor Health and Human Services Commissioner

represented by Scott A Keller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura Alicia Barbour (See above for address) TERMINATED: 04/26/2017 ATTORNEY TO BE NOTICED

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Movant Texas Dental Association
Movant Edward B. Cloutman, III Plaintiff Maria Ayala as next friend of her minor children, Christopher Arizola, Leonard Jimenez and Joseph Veliz
Plaintiff Martha Doe as next friend of her minor children Eric Doe, Esmeralda Doe and Carlos Doe TERMINATED: 10/19/1994

represented by Mark J Hanna Mark J Hanna PC 900 Congress Avenue, Ste. 250 Austin, TX 78701 512−477−6200 Fax: 512−477−1188 Email: denese@markjhanna.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Edward Bradbury Cloutman , III (See above for address) TERMINATED: 08/23/2006
represented by Edward Bradbury Cloutman , III (See above for address) TERMINATED: 08/23/2006
Jane Kathryn Swanson (See above for address) TERMINATED: 04/04/2017
Jeffrey S Levin (See above for address) TERMINATED: 07/31/1996
John Robert Heard (See above for address) TERMINATED: 09/29/2015
Sharon E Reynerson (See above for address) TERMINATED: 07/01/1996
Susan Finkelstein Zinn (See above for address) TERMINATED: 08/14/2014
Timothy David Craig (See above for address) ATTORNEY TO BE NOTICED
Timothy Borne Garrigan (See above for address) ATTORNEY TO BE NOTICED
represented by Sharon E Reynerson (See above for address) TERMINATED: 10/19/1994
Susan Finkelstein Zinn (See above for address) TERMINATED: 08/14/2014
Timothy Borne Garrigan (See above for address) ATTORNEY TO BE NOTICED

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Plaintiff Mary . Fisher as next friend of her minor child, Tyrone T Edwards
Plaintiff Mary Jane Garza as next friend of her minor children, Hilary Garza and Sarah Renea Garza

represented by Edward Bradbury Cloutman , III (See above for address) TERMINATED: 08/23/2006
Jane Kathryn Swanson (See above for address)
Jeffrey S Levin (See above for address) TERMINATED: 07/31/1996
John Robert Heard (See above for address) TERMINATED: 09/29/2015
Sharon E Reynerson (See above for address) TERMINATED: 07/01/1996
Susan Finkelstein Zinn (See above for address) TERMINATED: 08/14/2014
Timothy David Craig (See above for address) ATTORNEY TO BE NOTICED
Timothy Borne Garrigan (See above for address) ATTORNEY TO BE NOTICED
represented by Susan Finkelstein Zinn (See above for address) TERMINATED: 08/14/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Edward Bradbury Cloutman , III (See above for address) TERMINATED: 08/23/2006
Jane Kathryn Swanson (See above for address)
Jeffrey S Levin (See above for address) TERMINATED: 07/31/1996
John Robert Heard (See above for address) TERMINATED: 09/29/2015
Sharon E Reynerson (See above for address) TERMINATED: 07/01/1996
Timothy David Craig (See above for address) ATTORNEY TO BE NOTICED
Timothy Borne Garrigan

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(See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Gloria Padilla as next friend of her minor children, Pedro Padilla, Jr., Maria Gloria Padilla, Laredo Tex Padilla, Michael Padilla and Emiliano Padilla TERMINATED: 10/19/1994

represented by Susan Finkelstein Zinn (See above for address) TERMINATED: 08/14/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sharon E Reynerson (See above for address) TERMINATED: 10/19/1994

Timothy Borne Garrigan (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Deann Friedholm State Medicaid Director of the Texas Health and Human Services Commission in her official capacity TERMINATED: 10/10/1995 Defendant Bridgett Cook employee of Texas Department of Health in official capacity
Defendant MD Susan Penfield employee of the Texas Department of Health in official capacity
Defendant

represented by Allison V. Eberhart (See above for address) ATTORNEY TO BE NOTICED
represented by Allison V. Eberhart (See above for address) ATTORNEY TO BE NOTICED
Gregory Scott Coleman (See above for address) TERMINATED: 02/21/2003
Melanie D Plowman (See above for address) TERMINATED: 12/03/2004
Peter J Strelitz (See above for address) TERMINATED: 06/01/2006
represented by Allison V. Eberhart (See above for address) ATTORNEY TO BE NOTICED
Gregory Scott Coleman (See above for address) TERMINATED: 02/21/2003
Melanie D Plowman (See above for address) TERMINATED: 12/03/2004
Peter J Strelitz (See above for address) TERMINATED: 06/01/2006

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MD Beverly Koops employee of Texas Department of Health in official capacity TERMINATED: 12/21/2001

represented by Allison V. Eberhart (See above for address) ATTORNEY TO BE NOTICED
Gregory Scott Coleman (See above for address) TERMINATED: 02/21/2003

Melanie D Plowman (See above for address) TERMINATED: 12/03/2004

Defendant
Michael . McKinney Commissioner of Health and Human Services TERMINATED: 04/23/1998

represented by Allison V. Eberhart (See above for address) ATTORNEY TO BE NOTICED
Edwin N Horne (See above for address) TERMINATED: 09/22/2009

Defendant
Patti Patterson TERMINATED: 09/18/1997

represented by Allison V. Eberhart (See above for address) ATTORNEY TO BE NOTICED

Defendant
Dr William Archer Texas Commissioner of Health TERMINATED: 03/01/2001

represented by Susan Finkelstein Zinn (See above for address) TERMINATED: 08/14/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Allison V. Eberhart (See above for address) ATTORNEY TO BE NOTICED

Gregory Scott Coleman (See above for address) TERMINATED: 02/21/2003

Melanie D Plowman (See above for address) TERMINATED: 12/03/2004

Peter J Strelitz (See above for address) TERMINATED: 06/01/2006

Defendant
Marina Henderson Interim Texas Commissioner, HHS TERMINATED: 05/21/1998

represented by Allison V. Eberhart (See above for address) ATTORNEY TO BE NOTICED

Edwin N Horne (See above for address) TERMINATED: 09/22/2009

Defendant
Charles E Bell, . Charles E Bell MD, Acting Texas Commissioner of Health

represented by Allison V. Eberhart (See above for address) ATTORNEY TO BE NOTICED

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TERMINATED: 12/21/2001

Peter J Strelitz (See above for address) TERMINATED: 06/01/2006

Date Filed 09/01/1993 09/01/1993 09/01/1993 09/07/1993
09/16/1993
09/16/1993 09/16/1993 09/20/1993 10/04/1993 10/04/1993 10/04/1993 10/04/1993 10/04/1993 10/04/1993 10/04/1993

# Docket Text
1 Original Complaint filed (former empl) Additional attachment(s) added on 10/7/2005 (mll, ). (Entered: 09/07/1993)
2 Motion by Jeneva Frazar to proceed in forma pauperis (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 09/07/1993)
3 Motion by Linda Frew to proceed in forma pauperis (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 09/07/1993)
4 In compliance with Article One of the Civil Justice Expense and Delay Reduction Plan, and after a review of the pleadings, this action has been assigned to track 3 for case management purposes. (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 09/07/1993)
5 Amended complaint by Jeneva Frazar, James Curtis Brown, Crystal Noelevol Brown, Jeremiah DeMark Phillips, Russell Kline Walton, Dominique Shantel Frazar, Linda Frew, Carla Frew , amending [1−1] complaint Deann Friedholm, Bridgett Cook, Susan Penfield, Beverly Koops (former empl) Additional attachment(s) added on 10/7/2005 (mll, ). (Entered: 09/16/1993)
6 Order granting [3−1] motion to proceed in forma pauperis ( signed by Judge William W. Justice ) s/9−14−93 cc:atty on 9−20−93 (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 09/20/1993)
7 Order granting [2−1] motion to proceed in forma pauperis ( signed by Judge William W. Justice ) s/9−14−93 cc:atty on 9−20−93 (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 09/20/1993)
Summons(es) issued for Richard Ladd, Texas HHS, David Smith, Texas Dept of Health, Deann Friedholm, Bridgett Cook, Susan Penfield, Beverly Koops (former empl) (Entered: 09/20/1993)
8 Return of service executed as to Deann Friedholm 9/23/93 by certified mail of summons complaint Answer due on 10/13/93 for Deann Friedholm (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 10/05/1993)
9 Return of service executed as to Beverly Koops 9/23/93 by certd mail of summons complaint Answer due on 10/13/93 for Beverly Koops (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 10/05/1993)
10 Return of service executed as to Richard Ladd 9/23/93 by certd mail of summons complaint Answer due on 10/13/93 for Richard Ladd (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 10/05/1993)
11 Return of service executed as to David Smith 9/23/93 by certd mail of summons complaint Answer due on 10/13/93 for David Smith (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 10/05/1993)
12 Return of service executed as to Texas HHS 9/23/93 by certd mail of summons complaint Answer due on 10/13/93 for Texas HHS (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 10/05/1993)
13 Return of service executed as to Texas Dept of Health by certd mail of summons complaint on 9/23/93 Answer due on 10/13/93 for Texas Dept of Health (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 10/05/1993)
14 Return of service executed as to Bridgett Cook by certd mail of summons complaint on 9/23/93 Answer due on 10/13/93 for Bridgett Cook (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 10/05/1993)

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10/04/1993 10/22/1993 10/22/1993 10/28/1993 10/28/1993 10/28/1993 11/03/1993
11/03/1993 11/03/1993 11/03/1993
11/03/1993 11/08/1993 11/08/1993 11/08/1993 11/08/1993 11/24/1993 12/03/1993 12/17/1993 01/05/1994

15 Return of service executed as to Susan Penfield by certd mail of summons complaint on 9/23/93 Answer due on 10/13/93 for Susan Penfield (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 10/05/1993)
16 Motion by All Defendants for Edwin N Horne to appear pro hac vice (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 10/22/1993)
17 Motion by All Defendants to extend time to file motion ot dismiss or motion for summary judgment . cc:trassfm (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 10/22/1993)
18 Order granting [16−1] motion for Edwin N Horne to appear pro hac vice ( signed by Judge William W. Justice ) s/10−26−93 cc:attys on 10−28−93 (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 10/28/1993)
19 Unopposed Motion by All Plaintiffs to extend time to respond to motion for summary judgment . (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 10/29/1993)
20 Response by All Plaintiffs to [16−1] motion for Edwin N Horne to appear pro hac vice (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 10/29/1993)
21 Order granting [17−1] motion to extend time to file motion ot dismiss or motion for summary judgment ( signed by Judge William W. Justice ) s/11−1−93 cc:attys on 11−3−93 (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 11/03/1993)
22 Motion by All Defendants with memorandum in support to dismiss case , or for summary judgment (former empl) Additional attachment(s) added on 10/7/2005 (mll, ). (Entered: 11/03/1993)
23 Response by All Plaintiffs to [22−1] motion to dismiss case (former empl) Modified on 11/03/1993 Additional attachment(s) added on 10/7/2005 (mll, ). (Entered: 11/03/1993)
24 Order granting [19−1] motion to extend time to respond to motion for summary judgment until after they receive Exhibit D ( signed by Judge William W. Justice ) s/11−1−93 cc:attys on 11−3−93 (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 11/03/1993)
25 Affidavit of Bridget Cook by All Defendants Re: [22−1] motion to dismiss case, [22−2] motion for summary judgment (former empl) Additional attachment(s) added on 10/7/2005 (mll, ). (Entered: 11/03/1993)
26 Motion by All Plaintiffs to extend time to file response to motion for summary judgment . (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 11/09/1993)
27 Notice of refiling of response to motion to dismiss by All Plaintiffs (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 11/09/1993)
28 Response by All Plaintiffs to [22−1] motion to dismiss case (former empl) Additional attachment(s) added on 10/7/2005 (mll, ). (Entered: 11/09/1993)
29 Brief filed by All Plaintiffs in response to motion to dismiss (former empl) Additional attachment(s) added on 10/7/2005 (mll, ). (Entered: 11/09/1993)
30 Notice of disclosure by All Plaintiffs (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 11/29/1993)
31 Order granting [26−1] motion to extend time to file response to motion for summary judgment ( signed by Judge William W. Justice ) cc:attys on 12−8−93 (ttm) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 12/08/1993)
32 Response by All Plaintiffs to [22−2] motion for summary judgment (former empl) Additional attachment(s) added on 10/7/2005 (mll, ). (Entered: 12/20/1993)
33 Reply by Richard Ladd, David Smith, Deann Friedholm, Bridgett Cook, Susan Penfield, Beverly Koops to response to [22−1] motion to dismiss case, [22−2] motion

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 17 of 145

02/04/1994 02/08/1994 02/08/1994 02/08/1994 02/11/1994 02/11/1994 02/11/1994 02/14/1994
02/14/1994 02/17/1994
02/17/1994
02/23/1994 02/23/1994
02/25/1994 03/07/1994
03/16/1994

for summary judgment (former empl) Additional attachment(s) added on 10/7/2005 (mll, ). (Entered: 01/06/1994)
34 Motion by All Plaintiffs to supplement response to dfts motion to dismiss or for summary judgment (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 02/04/1994)
35 Motion by Jeneva Frazar to voluntarily dismiss party (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 02/08/1994)
36 Motion by All Plaintiffs for leave to file second amended complaint (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 02/08/1994)
37 Motion by All Plaintiffs for Doe plaintiffs to appear under pseudonym (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 02/08/1994)
38 Motion by All Plaintiffs to certify class action (former empl) Additional attachment(s) added on 10/7/2005 (mll, ). (Entered: 02/11/1994)
39 Memorandum by All Plaintiffs in support of [38−1] motion to certify class action (former empl) Additional attachment(s) added on 10/7/2005 (mll, ). (Entered: 02/11/1994)
40 Motion by All Plaintiffs for Israel Reyna, Rodolfo David Sanchez and Joaquin Amaya Jr to appear pro hac vice (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 02/11/1994)
41 Order granting [34−1] motion to supplement response to dfts motion to dismiss or for summary judgment ( signed by Judge William W. Justice ) s/2−9−94 cc:attys on 2−14−94 (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 02/15/1994)
42 Supplemental response by All plaintiffs to [22−1] motion to dismiss case, or [22−2] motion for summary judgment (former empl) Additional attachment(s) added on 10/7/2005 (mll, ). (Entered: 02/15/1994)
43 Order granting [40−1] motion for Israel Reyna, Rodolfo David Sanchez and Joaquin Amaya Jr to appear pro hac vice ( signed by Judge William W. Justice ) s/2−16−94 cc:attys on 2−22−94 (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 02/22/1994)
44 Order granting [35−1] motion to voluntarily dismiss party, dismissing party plaintiff Jeneva Frazar OB Ref: v22 p88 ( signed by Judge William W. Justice ) s/2−14−94 cc:attys on 2−22−94 (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 02/22/1994)
45 Order granting [36−1] motion for leave to file second amended complaint ( signed by Judge William W. Justice ) s/2−22−94 cc:attys on 2−23−94 (former empl) Additional attachment(s) added on 10/7/2005 (mll, ). (Entered: 02/23/1994)
46 Amended complaint by All Plaintiffs , (Answer due 3/7/94 for All Defendants, for Beverly Koops, for Susan Penfield, for Bridgett Cook, for Deann Friedholm, for Texas Dept of Health, for David Smith, for Texas HHS, for Richard Ladd ) amending [1−1] complaint added pla Maria Ayala, Martha Doe, Mary . Fisher, Mary Jane Garza, Gloria Padilla (former empl) Additional attachment(s) added on 10/20/2005 (mll, ). (Entered: 02/23/1994)
47 Motion by All Defendants to extend time to respond to second amended complaint and motions for class certification and Doe family (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 02/25/1994)
48 Order granting [47−1] motion to extend time to respond to second amended complaint and motions for class certification and Doe family ( signed by Judge William W. Justice ) s/3−3−94 cc:attys on 3−8−94 (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 03/08/1994)
49 Joint Motion by All Plaintiffs, All Defendants concerning Doe family (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 03/16/1994)

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 18 of 145

03/23/1994 03/23/1994 03/28/1994 04/01/1994 04/01/1994 04/04/1994 04/08/1994 04/14/1994 04/15/1994 04/18/1994 04/22/1994 04/22/1994 04/22/1994 04/25/1994
05/11/1994
05/12/1994 05/16/1994 05/20/1994 05/20/1994

50 Response by All Defendants to [38−1] motion to certify class action (former empl) Additional attachment(s) added on 10/20/2005 (mll, ). (Entered: 03/23/1994)
51 Motion by All Defendants to file motion to dismiss with excessive pages (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 03/23/1994)
52 Motion by All Plaintiffs to extend time to respond to motions (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 03/28/1994)
53 Order granting [51−1] motion to file motion to dismiss with excessive pages ( signed by Judge William W. Justice ) s/3−30−94 cc:attys on 4−1−94 (former empl) Additional attachment(s) added on 10/20/2005 (mll, ). (Entered: 04/01/1994)
54 Amended [22−1] motion to dismiss case, [22−2] motion for summary judgment amended to dismiss , or amended for summary judgment by All Defendants (former empl) Additional attachment(s) added on 10/20/2005 (mll, ). (Entered: 04/01/1994)
55 Order granting [52−1] motion to extend time to respond to motions until 4/22/94 ( signed by Judge William W. Justice ) s/3−30−94 cc:attys on 4−5−94 (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 04/05/1994)
56 Order granting [49−1] motion concerning Doe family ( signed by Judge William W. Justice ) s/4−6−94 cc:attys on 4−11−94 (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 04/11/1994)
57 Motion by All Plaintiffs to extend time to respond to amended motion to dismiss (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 04/15/1994)
58 SEALED DOCUMENT placed in vault (former empl) (pad, ). (Entered: 04/15/1994)
59 Notice of supplemental disclosure by All Plaintiffs (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 04/18/1994)
60 Reply by All Plaintiffs to response to [38−1] motion to certify class action (former empl) Additional attachment(s) added on 10/20/2005 (mll, ). (Entered: 04/22/1994)
61 Response by All Plaintiffs to [54−1] amended motion amended to dismiss, [54−2] amended motion amended for summary judgment (former empl) Additional attachment(s) added on 10/20/2005 (mll, ). (Entered: 04/29/1994)
62 Memorandum by All Plaintiffs in support of [61−1] motion response (former empl) Additional attachment(s) added on 10/20/2005 (mll, ). (Entered: 04/29/1994)
63 Order granting [57−1] motion to extend time to respond to amended motion to dismiss re dfts Koops asnd Cook until 5/25/94 ( signed by Judge William W. Justice ) cc:attys on 4−29−94 (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 04/29/1994)
64 Reply by Richard Ladd, Texas HHS, David Smith, Texas Dept of Health, Deann Friedholm, Bridgett Cook, Susan Penfield, Beverly Koops to response to [54−1] amended motion amended to dismiss, [54−2] amended motion amended for summary judgment (former empl) Additional attachment(s) added on 10/20/2005 (mll, ). (Entered: 05/11/1994)
65 Motion by All Plaintiffs to file supplemental response to amended motion to dismiss or partial summary judgment (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 05/13/1994)
66 Notice of disclosure by All Plaintiffs (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 05/17/1994)
67 Response by All Plaintiffs to [22−1] motion to dismiss case, [22−2] motion for summary judgment (former empl) Additional attachment(s) added on 10/20/2005 (mll, ). (Entered: 05/23/1994)
68 Affidavit of Susan F Zinn by All Plaintiffs Re: [67−1] motion response (former empl) Additional attachment(s) added on 10/20/2005 (mll, ). (Entered: 05/23/1994)

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 19 of 145

05/20/1994 06/17/1994 06/17/1994
06/20/1994 06/27/1994 06/30/1994 07/05/1994 07/05/1994 07/11/1994 07/11/1994 07/12/1994 07/18/1994 07/18/1994
07/21/1994 08/01/1994

69 Motion by All Plaintiffs to extend time to respond to motion to dismiss dft Cook (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 05/23/1994)
70 Order that plantiffs have satisfied the requirements of Rule 23(a) as well as 23(b)(2). Accordingly, an order certifying the class shall issue concurrently with this order ( signed by Judge William W. Justice ) cc:Attys of record (former empl) Additional attachment(s) added on 10/20/2005 (mll, ). (Entered: 06/20/1994)
71 ORDER granting [38−1] motion to certify class action. Such class shall consist of all present and future Texas Medicaid recipients who are under the age of 21, and therefore eligible for EPSDT services, but who have not received the entire range of EPSDT services to which they are entitled, except anyone who has knowingly and voluntarily refused EPSDT services ( signed by Judge William W. Justice ) cc:Attys of record (former empl) Additional attachment(s) added on 10/20/2005 (mll, ). (Entered: 06/20/1994)
72 JOINT Notice of by All Plaintiffs, All Defendants concerning services for named plantiffs (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 06/22/1994)
73 RESPONSE by All Plaintiffs to [54−1] amended motion amended to dismiss, [54−2] amended motion amended for summary judgment (former empl) Additional attachment(s) added on 10/20/2005 (mll, ). (Entered: 06/28/1994)
74 ORDER granting [69−1] motion to extend time to respond to motion to dismiss dft Cook. Plaintiffs shall respond on or before 6/28/94 ( signed by Judge William W. Justice ) cc:Attys of record, Judge Justice (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 07/06/1994)
75 ORDER granting [65−1] motion to file supplemental response to amended motion to dismiss or partial summary judgment ( signed by Judge William W. Justice ) cc:Attys of record, Judge Justice on 7/7/94 (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 07/07/1994)
76 Reply by All Plaintiffs to their response to [54−1] amended motion amended to dismiss, [54−2] amended motion amended for summary judgment (former empl) Additional attachment(s) added on 10/20/2005 (mll, ). (Entered: 07/07/1994)
77 Reply by All Defendants to plaintiffs' response to [22−1] motion to dismiss case (former empl) Additional attachment(s) added on 10/20/2005 (mll, ). (Entered: 07/12/1994)
78 MOTION by All Defendants for reconsideration and/or clarification of [71−1] order (former empl) Additional attachment(s) added on 10/20/2005 (mll, ). (Entered: 07/12/1994)
79 JOINT MOTION by All Plaintiffs, All Defendants to Take Deposition (concerning discovery) (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 07/12/1994)
80 ORDER granting [78−1] motion for reconsideration and/or clarification of [71−1] order. The Court's order of 6/16/94 is clarified as described in this order. ( signed by Judge William W. Justice ) cc:Attys of record, Judge Justice on 7/19/94 (former empl) Additional attachment(s) added on 10/20/2005 (mll, ). (Entered: 07/19/1994)
81 ORDER granting [79−1] motion to Take Depositions. Unless witnesses are not available, the parties shall complete the depositions mentioned in this order by the end of October, 1994. ( signed by Judge William W. Justice ) cc:Attys of record, Judge Justice on 7/19/94 (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 07/19/1994)
82 Response by All Plaintiffs to [78−1] motion for reconsideration and/or clarification of [71−1] order (former empl) Additional attachment(s) added on 10/20/2005 (mll, ). (Entered: 07/21/1994)
84 Request of plaintiffs, Doe and Padilla for voluntary dismissal tendered for filing (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 08/15/1994)

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 20 of 145

08/08/1994
08/10/1994
08/29/1994 09/02/1994 09/07/1994 09/23/1994 10/11/1994 10/14/1994
10/19/1994 10/19/1994 10/19/1994 10/19/1994 10/19/1994 10/20/1994 10/20/1994 10/20/1994

83 Notice of by Jeneva Frazar, James Curtis Brown, Crystal Noelevol Brown, Jeremiah DeMark Phillips, Russell Kline Walton, Dominique Shantel Frazar, Linda Frew, Carla Frew, All Plaintiffs, All Defendants, Maria Ayala, Martha Doe, Mary . Fisher, Mary Jane Garza, Gloria Padilla concerning publication of Wellington v District of Columbia (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 08/11/1994)
85 ORDER granting in part, denying in part [22−1] motion to dismiss case, denying [22−2] motion for summary judgment. ORDERED that dfts' motion to dismiss is GRANTED as to the state agency defendants. ORDERED that dfts' motion to dismiss shall be DISMISSED in all other respects. ( signed by Judge William W. Justice ) cc:Attys of record, Judge Justice on 8/15/94 (former empl) Additional attachment(s) added on 9/27/2005 (mjc, ). (Entered: 08/15/1994)
Terminated document #37 per order 3/7/94 & #54−1,2,3 per order 8/10/94 (mpt) (Entered: 08/29/1994)
86 MOTION by All Plaintiffs for leave to file Third amended complaint (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 09/02/1994)
87 Notice of Hearing: set management conference for 1:30 10/20/94 before Judge William W. Justice (mpt) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 09/07/1994)
88 Notice of Substitution by Richard Ladd has resigned from the position of Commissioner of the Texas Health and Human Services Commission. Defendant DeAnn Freidholm has replaced him in that position on an interim basis. (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 09/27/1994)
89 Response by All Defendants to [86−1] motion for leave to file Third amended complaint (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 10/14/1994)
90 Joint Motion Concerning Scheduling by Jeneva Frazar, James Curtis Brown, Crystal Noelevol Brown, Jeremiah DeMark Phillips, Russell Kline Walton, Dominique Shantel Frazar, Linda Frew, Carla Frew, Richard Ladd, Texas HHS, David Smith, Texas Dept of Health, Deann Friedholm, Bridgett Cook, Susan Penfield, Beverly Koops, All Plaintiffs, All Defendants, Maria Ayala, Martha Doe, Mary . Fisher, Mary Jane Garza, Gloria Padilla Concerning Scheduling (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 10/17/1994)
91 Plas' Notice for Management Conference (former empl) Additional attachment(s) added on 11/17/2005 (mjc, ). (Entered: 10/20/1994)
92 ORDER granting [86−1] motion for leave to file Third amended complaint ( signed by Judge William W. Justice s/10/19/94) cc:plas/dfts on 10/21/94, WWJ (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 10/21/1994)
93 Third Amended Complaint by All Plaintiffs (former empl) Additional attachment(s) added on 9/27/2005 (mjc, ). (Entered: 10/21/1994)
94 ORDER granting [90−1] motion Concerning Scheduling, SET status conference for 1:30 1/27/95 before Judge William W. Justice ( signed by Judge William W. Justice s/10/19/94) cc:plas/dfts/WWJ on 10/21/94 (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 10/21/1994)
95 ORDER that plas' DOE and PADILLA, as well as their children, be DISMISSED WITHOUT PREJUDICE to the refiling of their claims ( signed by Judge William W. Justice s/10/19/94) cc:plas/dfts/WWJ on 10/21/94 (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 10/21/1994)
Status conference held before Judge William W. Justice (mpt) (Entered: 10/20/1994)
96 Rec'd Elements & Defenses of Plas' Claims (former empl) (pad, ). (Entered: 10/27/1994)
97 Rec'd dfts' List of Fact Witnesses (former empl) (pad, ). (Entered: 10/27/1994)

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 21 of 145

11/03/1994 01/17/1995 01/20/1995 02/09/1995 02/15/1995
02/15/1995 02/17/1995 02/21/1995 03/08/1995 03/08/1995 03/13/1995 03/21/1995 03/31/1995 04/06/1995
04/06/1995 04/12/1995

98 Answer to Third Amd Complaint by All Defendants (former empl) Additional attachment(s) added on 9/27/2005 (mjc, ). (Entered: 11/09/1994)
99 ORDER, reset status conference for 1:30 2/17/95 before Judge William W. Justice ( signed by Judge William W. Justice ) cc: parties 1/19/95 (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 01/19/1995)
100 Status Report Concerning the progress of settlement negotiations and proposed settlement agreement by All Plaintiffs, All Defendants (former empl) Modified on 01/23/1995 Additional attachment(s) added on 9/27/2005 (mjc, ). (Entered: 01/23/1995)
101 Joint Motion by All Plaintiffs, All Defendants concerning schedule for negotiation about attorney's fees and costs (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 02/10/1995)
102 ORDER CONCERNING SCHEDULE FOR NEGOTIATION ABOUT ATTORNEY'S FEES AND COSTS 1.) The parties have asked the Court to allow negotiations concerning attorney's fees and costs incurred through Feb. 17, 1995 in this case. (See order for schedule) 2.) This order does not foreclose Plaintiffs' recovery of attorney's fees and costs for work completed after Feb 17, 1995. (signed by Judge William W. Justice ) cc: parties 2/16/95 (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 02/16/1995)
Terminated document #101 per order of 2/15/95 (mpt) (Entered: 07/26/1995)
Status conference held before Judge William W. Justice held. Court will allow settlement negotiations to continue. (mpt) (Entered: 02/28/1995)
103 MOTION by Texas Dental Assoc for leave to file Amicus Curiae Brief (fnt) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 02/27/1995)
104 ORDER granting [103−1] motion for leave to file Amicus Curiae Brief ( signed by Judge William W. Justice ) cc: parties 3/9/95 (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 03/09/1995)
105 Amicus Curiae Brief filed by Texas Dental Assoc (former empl) Additional attachment(s) added on 9/27/2005 (mjc, ). (Entered: 03/09/1995)
106 Notice of Submission Pursuant to Paragraph 71 of the Proposed Settlement Agreement by All Defendants (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 03/15/1995)
107 Response by All Plaintiffs to [105−1] amicus brief filed by Texas Dental Association (former empl) Additional attachment(s) added on 9/27/2005 (mjc, ). (Entered: 03/22/1995)
108 Motion by All Plaintiffs, All Defendants to amend proposed settlement agreement and notice to court of compliance (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 04/04/1995)
109 MOTION by Jeneva Frazar, James Curtis Brown, Crystal Noelevol Brown, Jeremiah DeMark Phillips, Russell Kline Walton, Dominique Shantel Frazar, Linda Frew, Carla Frew, Richard Ladd, Texas HHS, David Smith, Texas Dept of Health, Deann Friedholm, Bridgett Cook, Susan Penfield, Beverly Koops, All Plaintiffs, All Defendants, Maria Ayala, Martha Doe, Mary . Fisher, Mary Jane Garza, Gloria Padilla To substitute parties:Michael McKinney has been appointed to be the Commissioner of Health and Human Services, he replaces Defendant DeAnn Friedholm (fnt) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 04/12/1995)
0 Substitution of party Invovlement terminatedfor defendant Deann Friedholm. The correct partybecomes defendant Michael . McKinney (former empl) (Entered: 07/02/1996)
110 ORDER granting [108−1] motion to amend proposed settlement agreement and notice to court of compliance ( signed by Judge William W. Justice ) cc: all parties 4/19/95 (fnt) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 04/20/1995)

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 22 of 145

05/03/1995 05/09/1995 05/17/1995 05/23/1995 06/13/1995
07/03/1995 07/07/1995
07/13/1995
08/01/1995
08/02/1995
08/02/1995 08/03/1995 08/30/1995

111 MOTION by All Plaintiffs, All Defendants concerning notice to the class (mll) Additional attachment(s) added on 11/17/2005 (mjc, ). (Entered: 05/03/1995)
112 ORDER granting [111−1] motion concerning notice to the class ( signed by Judge William W. Justice ) cc:attys 5−12−95 (mll) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 05/12/1995)
113 Notice of TEXAS EPSDT PARTICIPATION (FY 1994) (fnt) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 05/23/1995)
114 Motion by All Plaintiffs, All Defendants concerning dates for notice to class and fairness hearing (former empl) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 05/24/1995)
115 ORDER granting [114−1] motion concerning dates for notice to class and fairness hearing; stuffers mailed to class members with Medical Identification cards early October, 1995; deadline for written comments (postmarked) 11−1−95; deadline for written intent to testify (postmarked) 11−1−95; set evidentiary hearing on fairness of proposed settlement for 10:00 12/4/95 before Judge William W. Justice in Tyler, Texas ( signed Judge William W. Justice ) cc:attys 6−13−95 (mll) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 06/14/1995)
116 Joint Report to the Court: Proposed Consent Decree submitted for approval. (fnt) Additional attachment(s) added on 9/27/2005 (mjc, ). (Entered: 07/07/1995)
117 JOINT MOTION by Jeneva Frazar, James Curtis Brown, Crystal Noelevol Brown, Jeremiah DeMark Phillips, Russell Kline Walton, Dominique Shantel Frazar, Linda Frew, Carla Frew, Richard Ladd, Texas HHS, David Smith, Texas Dept of Health, Deann Friedholm, Bridgett Cook, Susan Penfield, Beverly Koops, All Plaintiffs, All Defendants, Maria Ayala, Martha Doe, Mary . Fisher, Mary Jane Garza, Gloria Padilla, Texas Dental Assoc concerning interim attorney fees and costs (fnt) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 07/12/1995)
118 ORDER concerning interim attorney's fees and costs. The Court will hold the issue of interim attorney's fees in abeyance while Defendants seek the approval that is required by state law. The Court orders Plaintiffs to submit their motion for interim fees and costs 14 days after approval is denied, if that occurs. ( signed this 13th day of July, 1995 by Judge William W. Justice ) cc: all parties 7/14/95 (fnt) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 07/14/1995)
120 JOINT MOTION by Jeneva Frazar, James Curtis Brown, Crystal Noelevol Brown, Jeremiah DeMark Phillips, Russell Kline Walton, Dominique Shantel Frazar, Linda Frew, Carla Frew, Richard Ladd, Texas HHS, David Smith, Texas Dept of Health, Deann Friedholm, Bridgett Cook, Susan Penfield, Beverly Koops, All Plaintiffs, All Defendants, Maria Ayala, Martha Doe, Mary . Fisher, Mary Jane Garza, Gloria Padilla, Texas Dental Assoc concerning notice to the class (fnt) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 08/07/1995)
119 ORDER CONCERNING NOTICE TO THE CLASS. Upon consideration of all matters of record, the Court has determined that the parties' Joint Motion Concerning Notice to th eClass has merit. THEREFORE, it is GRANTED. ( signed this 2nd day of August, 1995 by Judge William W. Justice ) cc: all parties 8/4/95 (fnt) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 08/04/1995)
Terminated document #120 per order 8/2/95 (mpt) (Entered: 02/22/1996)
Susan F. Zinn, atty. will be out of teh country from August 24 through September 9, 1995. Will return September 9, but will not return to her office until September 13,1995 (fnt) (Entered: 08/11/1995)
121 Joint Notice Concerning Outcomes Measures by Jeneva Frazar, James Curtis Brown, Crystal Noelevol Brown, Jeremiah DeMark Phillips, Russell Kline Walton, Dominique Shantel Frazar, Linda Frew, Carla Frew, Richard Ladd, Texas HHS, David Smith, Texas Dept of Health, Deann Friedholm, Bridgett Cook, Susan Penfield, Beverly Koops, All Plaintiffs, All Defendants, Maria Ayala, Martha Doe, Mary . Fisher, Mary Jane Garza, Gloria Padilla, Texas Dental Assoc (fnt) Additional attachment(s) added on 9/27/2005 (mjc, ). (Entered: 08/31/1995)

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 23 of 145

09/26/1995
09/26/1995
09/26/1995
10/10/1995 11/02/1995
11/03/1995 11/29/1995
12/01/1995 12/04/1995 12/04/1995 12/18/1995 12/26/1995 01/03/1996 01/25/1996

122 Motion for approval by Jeneva Frazar, James Curtis Brown, Crystal Noelevol Brown, Jeremiah DeMark Phillips, Russell Kline Walton, Linda Frew, Carla Frew, All Plaintiffs, Maria Ayala, Martha Doe, Mary . Fisher, Mary Jane Garza for interim attorney's fees stipulation (fnt) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 09/29/1995)
123 Notice of Stipulation concerining interim attorney's fees and costs by James Curtis Brown, Crystal Noelevol Brown, Jeremiah DeMark Phillips, Russell Kline Walton, Linda Frew, Carla Frew, All Plaintiffs, Maria Ayala, Martha Doe, Mary . Fisher, Mary Jane Garza (fnt) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 09/29/1995)
124 Memorandum Brief in Support by James Curtis Brown, Crystal Noelevol Brown, Jeremiah DeMark Phillips, Russell Kline Walton, Linda Frew, Carla Frew, All Plaintiffs, Maria Ayala, Martha Doe, Mary . Fisher, Mary Jane Garza in support of [122−1] motion for interim attorney's fees stipulation (fnt) Additional attachment(s) added on 10/18/2005 (mll, ). (Entered: 09/29/1995)
125 Plaintiffs' Notice concerning resignation of defendant Deann Friedholm from the position of State Medicaid Director. Michael McKinney has assumed the responsibilities of that positon. (fnt) Additional attachment(s) added on 10/13/2005 (mll, ). (Entered: 10/11/1995)
Comments:The Houston Welfare Rights Organization urges that the proposed conset decree in the above matter be approved. Members of the Houston Welfare Rights Organization have children who are eligible for the EPSDT program. The EPSDT program will be improved by the proposed consent. By Bruce P. Bower, Attorney at Law. Texas Legal Services Center. (fnt) (Entered: 11/16/1995)
Consumers Union, Lisa McGriffert, Senior Policy Analyst on Helath Issues, letter with Comments of Consumers Unionon the Proposed Consent Decree for Frew et al. v. McKinney et al. attached. (fnt) (Entered: 11/14/1995)
126 Notice of (TO THE COURT CONCERNING NOTICE TO THE CLASS: TOLL FREE INFORMATION LINE) by James Curtis Brown, Crystal Noelevol Brown, Jeremiah DeMark Phillips, Russell Kline Walton, Linda Frew, Carla Frew, All Plaintiffs, Mary . Fisher, Mary Jane Garza; with affidavits attached. (fnt) Modified on 11/29/1995 Additional attachment(s) added on 10/13/2005 (mll, ). (Entered: 11/29/1995)
127 ORDER granting [122−1] motion for interim attorney's fees stipulation ( signed this 30th day of November, 1995 by Judge William W. Justice ) cc: all parties 12/4/95 (fnt) Additional attachment(s) added on 10/12/2005 (mll, ). (Entered: 12/04/1995)
128 Minutes of Fairness Hearing: Pla's exhibits 1 − 27 admitted. Pla's evidence presented. Dft's evidence presented. Court will approve settlement. Counsel to provide the court with appropriate order at their earliest convenience. (mpt) Additional attachment(s) added on 9/27/2005 (mjc, ). (Entered: 12/04/1995)
129 Exhibit list by plaintiffs Linda Frew, et al. (mpt) Additional attachment(s) added on 9/27/2005 (mjc, ). (Entered: 12/04/1995)
130 Motion by James Curtis Brown, Crystal Noelevol Brown, Jeremiah DeMark Phillips, Russell Kline Walton, Linda Frew, Carla Frew through atty. Susan F. Zinn For entry of order concerning fairness of consent decree (fnt) Additional attachment(s) added on 9/27/2005 (mjc, ). (Entered: 12/18/1995)
131 Response (In Opposition) by Michael McKinney to [130−1] motion For entry of order concerning fairness of consent decree (fnt) Additional attachment(s) added on 10/21/2005 (mll, ). (Entered: 12/27/1995)
132 Reply by All Plaintiffs to response to [130−1] motion For entry of order concerning fairness of consent decree (mll) Additional attachment(s) added on 10/21/2005 (mll, ). (Entered: 01/03/1996)
133 ORDER granting [130−1] motion For entry of order concerning fairness of consent decree ( signed by Judge William W. Justice ) (fnt) Additional attachment(s) added on 10/21/2005 (mll, ). (Entered: 01/30/1996)

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 24 of 145

02/07/1996
02/20/1996 02/22/1996
02/29/1996 03/04/1996 03/08/1996 03/11/1996
03/18/1996 03/21/1996 03/22/1996 03/27/1996
04/01/1996 04/10/1996
04/12/1996 04/19/1996 05/02/1996 05/10/1996

134 Notice of (Automatic Substitution of defendant) by Jeneva Frazar, James Curtis Brown, Crystal Noelevol Brown, Jeremiah DeMark Phillips, Russell Kline Walton, Dominique Shantel Frazar, Carla Frew to Linda Wertz, Texas State Medicaid Director (fnt) Additional attachment(s) added on 10/12/2005 (mll, ). (Entered: 02/07/1996)
135 Consent Decree ( signed by Judge William W. Justice ) (fnt) Additional attachment(s) added on 2/11/2005 (mjc, ). (Entered: 02/21/1996)
136 (Joint) Motion by Jeneva Frazar, James Curtis Brown, Crystal Noelevol Brown, Jeremiah DeMark Phillips, Russell Kline Walton, Dominique Shantel Frazar, Linda Frew, Carla Frew, Richard Ladd, Texas HHS, David Smith, Texas Dept of Health, Deann Friedholm, Bridgett Cook, Susan Penfield, Beverly Koops, All Plaintiffs, All Defendants, Maria Ayala, Martha Doe, Mary . Fisher, Mary Jane Garza, Gloria Padilla, Texas Dental Assoc, Linda Wertz About schedule for negotiations about secondd interm fees (fnt) Additional attachment(s) added on 10/12/2005 (mll, ). (Entered: 02/26/1996)
137 ORDER granting [136−1] motion About schedule for negotiations about second interm fees ( signed this 29th day of February, 1996 by Judge William W. Justice ) (fnt) Additional attachment(s) added on 10/12/2005 (mll, ). (Entered: 02/29/1996)
Vacation schedule April 15−19, 1996 and July 26−August 5, 1996 for Edwin N. Horne (fnt) (Entered: 03/06/1996)
138 Motion by All Plaintiffs to correct consent decree (mll) Additional attachment(s) added on 9/28/2005 (mll, ). (Entered: 03/08/1996)
139 ORDER granting [138−1] motion to correct consent decree, that the date originally set forth in the Consent Decree shall be amended so as hereafter to read "Feb. 16, 1996" ( signed by Judge William W. Justice ) cc: pla 3/11/96 (former empl) Additional attachment(s) added on 9/28/2005 (mll, ). (Entered: 03/11/1996)
Terminated document #109 & 117 (mpt) (Entered: 03/18/1996)
140 MOTION by All Plaintiffs to extend time to make demand for interim fees and costs (mll) Additional attachment(s) added on 10/12/2005 (mll, ). (Entered: 03/26/1996)
141 MOTION by All Plaintiffs to substitute attorney , and for Jeffrey S Levin to appear pro hac vice (mll) Additional attachment(s) added on 10/12/2005 (mll, ). (Entered: 03/26/1996)
142 ORDER granting [140−1] motion to extend time to make demand for interim fees and costs. Deadline for pltf's demand for interim fees and costs for the time period that begins on 2/18/95 and ends on 1/2/96 is extended to 4/8/96 ( signed by Judge William W. Justice ) cc: parties 3/28/96 (ehs) Additional attachment(s) added on 10/12/2005 (mll, ). (Entered: 03/28/1996)
PHV Filing Fee paid by atty Jeffrey S Levin; PHV FILING FEE $ 10.00 RECEIPT # 74766 (mll) (Entered: 04/05/1996)
143 ORDER granting [141−1] motion to substitute attorney; terminated attorney Joaquin Amaya Jr for All Plaintiffs, Added Jeffrey S Levin; granting [141−2] motion for Jeffrey S Levin to appear pro hac vice ( signed by Judge William W. Justice 4−9−96) cc:attys 4−11−96 (mll) Additional attachment(s) added on 10/12/2005 (mll, ). (Entered: 04/11/1996)
144 Motion by All Plaintiffs concerning Susan F Zinn as lead counsel (mll) Additional attachment(s) added on 10/12/2005 (mll, ). (Entered: 04/12/1996)
145 ORDER granting [144−1] motion concerning Susan F Zinn as lead counsel ( signed by Judge William W. Justice ) cc:attys 4−24−96 (mll) Additional attachment(s) added on 10/12/2005 (mll, ). (Entered: 04/24/1996)
146 MOTION by All Defendants to extend time of deadlines on negotiation schedule for second interim attys' fees (mll) Additional attachment(s) added on 10/12/2005 (mll, ). (Entered: 05/06/1996)
MOTION (rnr) (Entered: 05/13/1996)

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 25 of 145

05/10/1996 05/13/1996 05/13/1996
06/27/1996 07/01/1996
07/10/1996 07/15/1996 07/17/1996 07/22/1996 07/22/1996 07/22/1996 07/22/1996 07/22/1996 07/22/1996

147 MOTION by All Defendants for leave to file monitoring report (rnr) Additional attachment(s) added on 9/28/2005 (mll, ). (Entered: 05/13/1996)
148 ORDER granting [147−1] motion for leave to file monitoring report ( signed by Judge William W. Justice ) cc:attys 5−15−96 (mll) Additional attachment(s) added on 9/28/2005 (mll, ). (Entered: 05/15/1996)
149 ORDER granting [146−1] motion to extend time of deadlines on negotiation schedule for second interim attys' fees. Defts' response to pltfs' demand for second interim attys' fees is due 5−10−96; parties are to conduct negotiations by 6−24−96; if negotiations fail, pltfs motion regarding attys' fees is due 7−22−96 ( signed by Judge William W. Justice, nunc pro tunc 5−3−96 ) cc:attys 5−15−96 (mll) Additional attachment(s) added on 10/12/2005 (mll, ). (Entered: 05/15/1996)
150 MOTION by Linda Frew, Mary . Fisher for Sharon Reynerson to withdraw as attorney , to substitute attorney Jane K. Swanson (former empl) Additional attachment(s) added on 10/12/2005 (mll, ). (Entered: 06/27/1996)
151 ORDER granting [150−1] motion for Sharon Reynerson to withdraw as attorney (Terminated attorney Sharon E Reynerson for Gloria Padilla, attorney Sharon E Reynerson for Mary Jane Garza, attorney Sharon E Reynerson for Mary . Fisher, attorney Sharon E Reynerson for Martha Doe, attorney Sharon E Reynerson for Maria Ayala, attorney Sharon E Reynerson for Carla Frew, attorney Sharon E Reynerson for Linda Frew, attorney Sharon E Reynerson for Dominique Shantel Frazar, attorney Sharon E Reynerson for Russell Kline Walton, attorney Sharon E Reynerson for Jeremiah DeMark Phillips, attorney Sharon E Reynerson for Crystal Noelevol Brown, attorney Sharon E Reynerson for James Curtis Brown, attorney Sharon E Reynerson for Jeneva Frazar, granting [150−2] motion to substitute attorney Jane K. Swanson Added Jane Kathryn Swanson ( signed by Judge William W. Justice ) cc: pla & dft 7/2/96 (former empl) Additional attachment(s) added on 10/12/2005 (mll, ). (Entered: 07/02/1996)
Mail returned: [151−1] order addressed to Jane Kathryn Swanson. (former empl) (Entered: 07/11/1996)
152 MOTION by All Plaintiffs for Rodolfo Sanchez, Israel Reyna and Jeffrey Levin to withdraw as attorney (former empl) Additional attachment(s) added on 10/12/2005 (mll, ). (Entered: 07/15/1996)
153 ORDER granting [152−1] motion for Rodolfo Sanchez, Israel Reyna and Jeffrey Levin to withdraw as attorney as of 7/31/96 ( signed by Judge William W. Justice ) cc:pla & dft 7/22/96 (rnr) Additional attachment(s) added on 10/12/2005 (mll, ). (Entered: 07/22/1996)
154 Unopposed Second Motion by All Plaintiffs for approval of Interim Attorney's Fee Stipulation (former empl) Additional attachment(s) added on 10/12/2005 (mll, ). (Entered: 07/23/1996)
155 Affidavit of Audrey Atilano Re: [154−1] motion for approval of Interim Attorney's Fee Stipulation (former empl) Additional attachment(s) added on 10/12/2005 (mll, ). (Entered: 07/23/1996)
156 Affidavit of Sharon E. Reynerson's in Support of Re: [154−1] motion for approval of Interim Attorney's Fee Stipulation (former empl) Additional attachment(s) added on 10/12/2005 (mll, ). (Entered: 07/23/1996)
157 Affidavit of Rodolfo D. Sanchez in support of Re: [154−1] motion for approval of Interim Attorney's Fee Stipulation (former empl) Additional attachment(s) added on 10/12/2005 (mll, ). (Entered: 07/23/1996)
158 Affidavit of Jacques Trevino Re: [154−1] motion for approval of Interim Attorney's Fee Stipulation (former empl) Additional attachment(s) added on 10/12/2005 (mll, ). (Entered: 07/23/1996)
159 Susan F. Zinn's Affidavit in support of Re: [154−1] motion for approval of Interim Attorney's Fee Stipulation (former empl) Additional attachment(s) added on 10/12/2005 (mll, ). (Entered: 07/23/1996)

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 26 of 145

07/23/1996
07/26/1996 07/30/1996 08/26/1996 08/28/1996
09/09/1996
09/10/1996 09/11/1996
09/11/1996 09/13/1996 09/13/1996 09/30/1996
09/30/1996 10/25/1996 01/09/1997 02/03/1997 02/07/1997 02/10/1997
02/10/1997 02/12/1997
03/31/1997

160 ORDER granting [154−1] motion for approval of Interim Attorney's Fee Stipulation ( signed by Judge William W. Justice ) cc:pla & dfts 7/24/96 (rnr) Additional attachment(s) added on 10/12/2005 (mll, ). (Entered: 07/24/1996)
161 Defendant's Monitoring Report, July 1996 (former empl) Additional attachment(s) added on 9/28/2005 (mll, ). (Entered: 07/26/1996)
Mail returned: [160−1] order addressed to Jane Kathryn Swanson, Esq for All Plaintiffs (former empl) (Entered: 07/30/1996)
162 Motion by All Plaintiffs for status conference (rnr) Additional attachment(s) added on 9/28/2005 (mll, ). (Entered: 08/26/1996)
163 ORDER granting [162−1] motion for status conference; set status conference for 1:30 9/13/96 before Judge William W. Justice in Tyler, Texas ( signed by Judge William W. Justice ) cc:attys 8−29−96 (mll) Additional attachment(s) added on 10/12/2005 (mll, ). (Entered: 08/29/1996)
Mail returned: [163−1] order set status conference for 1:30 9/13/96 before Judge William W. Justice addressed to Jane Swanson attorney for All Plaintiffs (former empl) (Entered: 09/10/1996)
164 Motion by Michael . McKinney for leave to exceed the page limit (former empl) Additional attachment(s) added on 10/12/2005 (mll, ). (Entered: 09/10/1996)
165 ORDER granting [164−1] motion for leave to exceed the page limit ( signed by Judge William W. Justice ) cc: pla & dft 9/11/96 (former empl) Additional attachment(s) added on 10/12/2005 (mll, ). (Entered: 09/11/1996)
166 Response by All Defendants to [162−1] motion for status conference (former empl) Additional attachment(s) added on 9/28/2005 (mll, ). (Entered: 09/11/1996)
Status conference held before Judge William W. Justice (mpt) (Entered: 09/16/1996)
167 Response by All Plaintiffs to [166−1] motion response, [161−1] remark (former empl) Additional attachment(s) added on 9/28/2005 (mll, ). (Entered: 09/17/1996)
168 MOTION by All Plaintiffs To substitute parties, defendant Patterson for Defendant Smith (fnt) Additional attachment(s) added on 10/12/2005 (mll, ). (Entered: 09/30/1996)
Mail returned: [165−1] order address to Jane Kathryn Swanson, esq. (fnt) (Entered: 09/30/1996)
169 Defendants' Monitoring Report, October 1996 (kjr) Additional attachment(s) added on 9/26/2005 (mjc, ). (Entered: 10/28/1996)
170 MOTION by All Plaintiffs for permission to conduct discovery (fnt) Additional attachment(s) added on 10/12/2005 (mll, ). (Entered: 01/09/1997)
171 Deft's Monitoring Report, January 1997 (mll) Additional attachment(s) added on 9/26/2005 (mjc, ). (Entered: 02/04/1997)
172 Response by All Defendants to [170−1] motion for permission to conduct discovery (mll) Additional attachment(s) added on 10/12/2005 (mll, ). (Entered: 02/10/1997)
173 ORDER granting [168−1] motion To substitute parties, defendant Patterson for Defendant Smith ( signed by Judge William W. Justice ) cc:attys 2−11−97 (mll) Additional attachment(s) added on 10/12/2005 (mll, ). (Entered: 02/11/1997)
0 Substitution of party: Invovlement terminated for defendant David Smith. The correct party becomes defendant Patti Patterson (mll) (Entered: 02/11/1997)
174 ORDER granting [170−1] motion for permission to conduct discovery ( signed by Judge William W. Justice ) cc:attys 2−14−97 (mll) Additional attachment(s) added on 10/12/2005 (mll, ). (Entered: 02/14/1997)
175 JOINT MOTION by All Plaintiffs, All Defendants for approval of agreement to increase reimbursement for meals (mll) Additional attachment(s) added on 10/12/2005 (mll, ). (Entered: 04/01/1997)

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 27 of 145

04/07/1997 04/09/1997
05/19/1997 05/19/1997
07/07/1997 07/31/1997 08/04/1997 08/18/1997 08/18/1997 08/18/1997 09/18/1997 10/10/1997 10/10/1997 11/17/1997 12/02/1997
02/11/1998 04/10/1998

176 JOINT MOTION by All Plaintiffs, All Defendants concerning schedule for negotiation about atty's fees and costs (mll) Additional attachment(s) added on 10/12/2005 (mll, ). (Entered: 04/07/1997)
177 ORDER granting [176−1] motion concerning schedule for negotiation about atty's fees and costs. Negotiations shall proceed according to the following schedule: Pltf's initial demand letter by 4−30−97; defts' response by 5−30−97; negotiations conclude by 6−30−97; pltfs' motion due (if negotiations fail) by 8−22−97 ( signed by Judge William W. Justice 4−8−97) cc:attys 4−11−97 (mll) Additional attachment(s) added on 10/12/2005 (mll, ). (Entered: 04/11/1997)
178 Monitoring Report, May 1997 by defts (mll) Additional attachment(s) added on 9/26/2005 (mjc, ). (Entered: 05/19/1997)
179 ORDER granting [175−1] motion for approval of agreement to increase reimbursement for meals. The increased rate will be no less than $25 per day (and pro rata payments for less than a day) for class members and their adult escorts who must travel away from home so that class members may obtain necessary health care. The effective date is 5−1−97 ( signed by Judge William W. Justice ) cc:attys 5−20−97 (mll) Additional attachment(s) added on 10/12/2005 (mll, ). (Entered: 05/20/1997)
180 MOTION by All Plaintiffs for leave to file Response to defts' May, 1997 Monitoring Report (mll) Additional attachment(s) added on 10/12/2005 (mll, ). (Entered: 07/07/1997)
181 Defendants' Monitoring Report, July 1997 (tln) Additional attachment(s) added on 9/26/2005 (mjc, ). (Entered: 08/04/1997)
182 Reply by Bridgett Cook, Susan Penfield, Beverly Koops, Linda Wertz, Michael . McKinney, Patti Patterson to [181−1] response to dft's May 1997 monitoring report (rvw) Additional attachment(s) added on 10/12/2005 (mll, ). (Entered: 08/05/1997)
183 Third Stipulation concerning interim atty's fees and costs (mll) Additional attachment(s) added on 10/12/2005 (mll, ). (Entered: 08/18/1997)
184 Third MOTION by All Plaintiffs for interim attorney fees and costs (mll) Additional attachment(s) added on 10/12/2005 (mll, ). (Entered: 08/18/1997)
185 Notice of Declaration in support of #184 pltfs' Third Interim Atty's fees and costs by Susan F Zinn (mll) Additional attachment(s) added on 10/12/2005 (mll, ). (Entered: 08/18/1997)
186 Notice of Substitution of party: Invovlement terminated for defendant Patti Patterson. The correct party becomes defendant William Archer (mll) Additional attachment(s) added on 10/12/2005 (mll, ). (Entered: 09/18/1997)
187 ORDER granting [180−1] motion for leave to file Response to defts' May, 1997 Monitoring Report ( signed by Judge William W. Justice ) cc:attys 10−15−97 (mll) Additional attachment(s) added on 10/12/2005 (mll, ). (Entered: 10/15/1997)
188 Response by All Plaintiffs to [178−1] May, 1997 Monitoring Report (mll) Additional attachment(s) added on 9/26/2005 (mjc, ). (Entered: 10/17/1997)
189 Defts' Monitoring Report for November, 1997 (mll) Additional attachment(s) added on 9/26/2005 (mjc, ). (Entered: 11/18/1997)
190 ORDER granting [184−1] motion for interim attorney fees and costs. The Court determines that $199,000 is reasonable recovery for the work that pltfs completed and the costs they incurred from 1−3−96 thru 1−31−97 ( signed by Judge William W. Justice ) cc:attys 12−4−97 (mll) Additional attachment(s) added on 10/12/2005 (mll, ). (Entered: 12/04/1997)
191 Deft's Monitoring Report, January 1998 (mll) Additional attachment(s) added on 9/26/2005 (mjc, ). (Entered: 02/11/1998)
192 JOINT MOTION by All Plaintiffs, All Defendants concerning schedule for negotiation about attys fees and costs (mll) Additional attachment(s) added on 10/12/2005 (mll, ). (Entered: 04/13/1998)

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 28 of 145

04/15/1998
04/23/1998 05/11/1998 05/21/1998 06/16/1998 08/13/1998 08/31/1998 08/31/1998 08/31/1998 08/31/1998 09/17/1998 10/26/1998 10/26/1998 11/05/1998 11/10/1998
11/10/1998 11/10/1998
11/20/1998 11/30/1998

193 ORDER granting [192−1] motion concerning schedule for negotiation about attys fees and costs. Negotiations shall proceed according to the schedule set forth in this Order ( signed by Judge William W. Justice ) cc:attys 4−15−98 (mll) Additional attachment(s) added on 10/12/2005 (mll, ). (Entered: 04/15/1998)
194 Notice of Substitution of party: Invovlement terminated for defendant Michael . McKinney. The correct party becomes defendant Marina Henderson (mll) Additional attachment(s) added on 10/12/2005 (mll, ). (Entered: 04/24/1998)
195 MONITORING REPORT (April 1998) by defts (mll) Additional attachment(s) added on 9/26/2005 (mjc, ). (Entered: 05/12/1998)
196 Notice of substitution of party: Invovlement terminated for defendant Marina Henderson. The correct party becomes defendant Don Gilbert (mll) Additional attachment(s) added on 10/12/2005 (mll, ). (Entered: 05/21/1998)
197 Transcript of Fairness Hearing before Judge Justice 12−4−95 at 10:00 a.m. in Tyler, Texas (mll) (pad, ). (Entered: 06/16/1998)
198 Defts' Monitoring Report, July 1998 (mll) Additional attachment(s) added on 9/26/2005 (mjc, ). (Entered: 08/13/1998)
199 MOTION by All Plaintiffs for attorney fees and costs (mll) Additional attachment(s) added on 10/21/2005 (mll, ). (Entered: 08/31/1998)
200 Notice of Fourth Stipulation concerning interim attys' fees and costs by All Plaintiffs (mll) Additional attachment(s) added on 10/21/2005 (mll, ). (Entered: 08/31/1998)
201 Memorandum/Declaration by Susan F Zinn in support of [199−1] motion for attorney fees and costs (mll) Additional attachment(s) added on 10/21/2005 (mll, ). (Entered: 08/31/1998)
202 Memorandum/Declaration by Jane K Swanson in support of [199−1] motion for attorney fees and costs (mll) Additional attachment(s) added on 10/21/2005 (mll, ). (Entered: 08/31/1998)
203 ORDER granting [199−1] motion for attorney fees and costs ( signed by Judge William W. Justice 9−11−98) cc:attys 9−18−98 (mll) Additional attachment(s) added on 10/21/2005 (mll, ). (Entered: 09/18/1998)
204 MOTION by All Plaintiffs for leave to file Motion to Enforce Consent Decree (in excess of page limit) (mll) Additional attachment(s) added on 9/26/2005 (mjc, ). (Entered: 10/26/1998)
205 Motion by All Plaintiffs for conference (mll) Additional attachment(s) added on 10/21/2005 (mll, ). (Entered: 10/26/1998)
206 MOTION by All Defendants to extend time to respond to pltfs' motion to enforce the consent decree (mll) Additional attachment(s) added on 10/21/2005 (mll, ). (Entered: 11/05/1998)
207 ORDER granting [204−1] motion for leave to file Motion to Enforce Consent Decree (in excess of page limit) ( signed by Judge William W. Justice 11−2−98) cc:attys 11−10−98 (mll) Additional attachment(s) added on 10/21/2005 (mll, ). (Entered: 11/10/1998)
208 Motion by All Plaintiffs to enforce consent decree (mll) Additional attachment(s) added on 9/26/2005 (mjc, ). (Entered: 11/10/1998)
209 ORDER that defts respond to pltfs' motion to enforce the consent decree no later than 11−16−98; Response to motion reset to 11/16/98 for [208−1] motion to enforce consent decree ( signed by Judge W. Justice 11−2−98) cc:attys 11−12−98 (mll) Additional attachment(s) added on 10/21/2005 (mll, ). (Entered: 11/12/1998)
210 Response by All Defendants to [208−1] motion to enforce consent decree (mll) Additional attachment(s) added on 11/3/2005 (mll, ). Additional attachment(s) added on 11/3/2005 (mll, ). (Entered: 11/20/1998)
211 Motion by All Plaintiffs, All Defendants concerning scheduling and pre−hearing matters (mll) Additional attachment(s) added on 9/14/2005 (mll, ). (Entered:

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 29 of 145

11/30/1998 12/08/1998 12/22/1998
12/31/1998 01/04/1999 02/25/1999 02/26/1999 03/05/1999 03/22/1999 04/05/1999 04/19/1999
04/29/1999
05/10/1999 05/10/1999 05/10/1999 05/10/1999 05/17/1999 05/17/1999

11/30/1998)
212 Defts' Monitoring Report, October, 1998 (mll) Additional attachment(s) added on 9/14/2005 (mll, ). (Entered: 11/30/1998)
213 MOTION by All Plaintiffs for permission to reply to defts' response to pltf's motion to enforce consent decree (mll) Additional attachment(s) added on 9/14/2005 (mll, ). (Entered: 12/08/1998)
214 ORDER granting [213−1] motion for permission to reply to defts' response to pltf's motion to enforce consent decree. ( signed by Judge William W. Justice 12−13−98) cc:attys 12−22−98 (mll) Additional attachment(s) added on 9/14/2005 (mll, ). (Entered: 12/22/1998)
215 Reply by plaintiffs to response to [208−1] motion to enforce consent decree (tkd) Additional attachment(s) added on 9/14/2005 (mll, ). (Entered: 01/05/1999)
216 Notice of initial disclosure by All Defendants (mll) Additional attachment(s) added on 10/21/2005 (mll, ). (Entered: 01/05/1999)
217 MOTION by All Plaintiffs, All Defendants concerning scheduling and pre−hearing matters and to enforce consent decree (mll) Additional attachment(s) added on 10/21/2005 (mll, ). (Entered: 02/25/1999)
218 Monitoring Report, January 1999 by Defts' (mll) Additional attachment(s) added on 9/14/2005 (mll, ). (Entered: 02/26/1999)
219 MOTION by All Plaintiffs for leave to file first amended motion to enforce consent decree (fnt) Additional attachment(s) added on 9/14/2005 (mll, ). (Entered: 03/05/1999)
220 Response by All Defendants to First Amended Motion to enforce consent decree (filed early) (mll) Additional attachment(s) added on 9/14/2005 (mll, ). (Entered: 03/22/1999)
221 Motion by All Plaintiffs, All Defendants concerning schedule for negotiation about fifth interim attys' fees and costs (mll) Additional attachment(s) added on 10/21/2005 (mll, ). (Entered: 04/06/1999)
222 ORDER granting [221−1] motion concerning schedule for negotiation about fifth interim attys' fees and costs. (signed by Judge William W. Justice 4−16−99) cc:attys 4−20−99 (mll) Additional attachment(s) added on 10/21/2005 (mll, ). (Entered: 04/20/1999)
223 ORDER that pltfs brief the court on the issue of the proper scope of the consent decree in this civil action; set brief due for 5/21/99 . Defts should respond to such brief within 10 days of its filing. Neither filing should exceed 10 pages in length (signed by Judge William W. Justice 4−27−99) cc:attys 4−30−99 (mll) Additional attachment(s) added on 9/14/2005 (mll, ). (Entered: 04/30/1999)
224 MOTION by All Plaintiffs, All Defendants concerning negotiation schedule: fifth interim attys' fees (mll) Additional attachment(s) added on 10/21/2005 (mll, ). (Entered: 05/10/1999)
225 Motion by All Plaintiffs, All Defendants concerning briefing schedule (mll) Additional attachment(s) added on 9/14/2005 (mll, ). (Entered: 05/10/1999)
226 ORDER granting [219−1] motion for leave to file first amended motion to enforce consent decree (signed by Judge William W. Justice 5−2−99) cc:attys 5−12−99 (mll) Additional attachment(s) added on 9/14/2005 (mll, ). (Entered: 05/12/1999)
227 First Amended [208−1] motion to enforce consent decree by All Plaintiffs (mll) Additional attachment(s) added on 9/14/2005 (mll, ). (Entered: 05/12/1999)
228 Monitoring Report, April 1999 by defts (mll) Additional attachment(s) added on 9/14/2005 (mll, ). (Entered: 05/17/1999)
229 ORDER granting [225−1] motion concerning briefing schedule. Pltfs' brief shall be due 6−4−99; Defts' brief shall be due 6−28−99 (signed by Judge William W. Justice

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 30 of 145

05/20/1999
05/20/1999
06/07/1999 06/28/1999 08/16/1999 08/16/1999 08/16/1999 08/16/1999 08/16/1999 08/16/1999 09/07/1999 09/15/1999 09/20/1999 09/23/1999 09/29/1999 09/29/1999 09/29/1999 10/04/1999

5−11−99) cc:attys 5−18−99 (mll) Additional attachment(s) added on 9/14/2005 (mll, ). (Entered: 05/18/1999)
230 ORDER granting [224−1] motion concerning negotiation schedule: fifth interim attys' fees. The Court's Order of 4−19−99 is AMENDED to permit the parties to negotiate about pltfs' interim fees, costs, and expenses incurred from 1−1−98 thru 12−31−98. In all other respects, the 4−19−99 Order remains the same (signed by Judge William W. Justice 5−14−99) cc:attys 5−24−99 (mll) Additional attachment(s) added on 10/21/2005 (mll, ). (Entered: 05/24/1999)
231 ORDER granting [211−1] motion concerning scheduling and pre−hearing matters. Parties shall mail their briefs to the Court and opposing counsel as follows: Pltf's brief by 6−4−99; defts' breif by 6−28−99 (signed by Judge William W. Justice 5−14−99) cc:attys 5−24−99 (mll) Additional attachment(s) added on 9/14/2005 (mll, ). (Entered: 05/24/1999)
232 Memorandum by All Plaintiffs in support of this Court's jurisdiction to enforce consent decree (mll) Additional attachment(s) added on 9/14/2005 (mll, ). (Entered: 06/08/1999)
233 Response by All Defendants to [232−1] support memorandum re this court's jurisdiction to enforce consent decree (mll) Additional attachment(s) added on 9/14/2005 (mll, ). (Entered: 06/28/1999)
234 Notice of Monitoring Report, July 1999 by All Defendants (mll) Additional attachment(s) added on 9/14/2005 (mll, ). (Entered: 08/17/1999)
235 Notice of Supplement to Monitoring Report, July 1999 by All Defendants (mll) Additional attachment(s) added on 9/14/2005 (mll, ). (Entered: 08/17/1999)
236 Notice of Fifth Stipulation Concerning Interim Attys' Fees and Costs by All Plaintiffs, All Defendants (mll) Additional attachment(s) added on 9/14/2005 (mjc, ). (Entered: 08/17/1999)
237 MOTION by All Plaintiffs for attorney fees and costs (mll) Additional attachment(s) added on 9/14/2005 (mjc, ). (Entered: 08/17/1999)
238 Memorandum/Declaration by All Plaintiffs in support of [237−1] motion for attorney fees and costs (mll) Additional attachment(s) added on 9/14/2005 (mjc, ). (Entered: 08/17/1999)
239 Affidavit Jane K Swanson for All Plaintiffs Re: [237−1] motion for attorney fees and costs (mll) Additional attachment(s) added on 9/14/2005 (mjc, ). Additional attachment(s) added on 9/14/2005 (mjc, ). (Entered: 08/17/1999)
240 Motion by All Plaintiffs to permit Edward B Cloutman to appear as counsel (mll) Additional attachment(s) added on 9/14/2005 (mjc, ). (Entered: 09/08/1999)
241 ORDER granting [240−1] motion to permit Edward B Cloutman to appear as counsel (signed by Judge William W. Justice ) cc: All parties 9/21/99 (fnt) (Entered: 09/21/1999)
242 Response/Objections by All Defendants to [237−1] motion for attorney fees and costs (mll) Additional attachment(s) added on 9/14/2005 (mjc, ). (Entered: 09/21/1999)
Terminated document #206 per order 5/20/99 (mpt) (Entered: 09/23/1999)
Terminated document #205 moot due to subsequent motions #210 and 217 asking for the same thing − ruled on in order #231 (mpt) (Entered: 09/29/1999)
Terminated document #217, ruled on in order #231 (mpt) (Entered: 09/29/1999)
243 MOTION by All Defendants for reconsideration of [241−1] order permitting Edward Cloutman to appear on behalf of pltfs' and the Class (mll) Additional attachment(s) added on 9/14/2005 (mjc, ). (Entered: 09/29/1999)
244 Response by All Plaintiffs to [243−1] motion for reconsideration of [241−1] order permitting Edward Cloutman to appear on behalf of pltfs' and the Class (mll) Additional attachment(s) added on 9/14/2005 (mjc, ). (Entered: 10/04/1999)

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 31 of 145

10/08/1999 10/25/1999 10/25/1999
10/26/1999 10/26/1999 10/26/1999 11/01/1999 11/02/1999 11/12/1999 11/12/1999 11/12/1999 12/02/1999 12/20/1999 12/27/1999 12/27/1999 01/03/2000 01/07/2000 01/10/2000

245 ORDER granting [237−1] motion for attorney fees and costs (signed by Judge William W. Justice 10−5−99) cc:attys 10−8−99 (mll) (Entered: 10/08/1999)
246 ORDER denying [243−1] motion for reconsideration of [241−1] order permitting Edward Cloutman to appear on behalf of pltfs' and the Class (signed by Judge William W. Justice 10−21−99) cc:attys 10−26−99 (mll) (Entered: 10/26/1999)
247 ORDER that parties shall have 14 days from service of this Order to submit an agreement to the Court notifying the court of the number of hours each party will need to present evidence on each matter listed in parties' previous joint motion concerning scheduling and prehearing matters; set notice of compliance due for 11/8/99 for All Defendants, for All Plaintiffs . If no agreement can be reached, the parties shall submit separate estimates of hours needed by the same date (signed by Judge William Justice 10−21−99) cc:attys 10−26−99 (mll) (Entered: 10/26/1999)
248 Fax noticing receipt of #247 Order to attorney Susan Finkelstein Zinn 10−26−99 3:00 p.m; reset notice of compliance due for 11/9/99 for All Plaintiffs (mll) Additional attachment(s) added on 9/14/2005 (mjc, ). (Entered: 10/26/1999)
249 Fax noticing receipt of #247 Order to attorney Edward Bradbury Cloutman III for All Plaintiffs 10−26−99 2:59 p.m; reset notice of compliance due for 11/9/99 All Plaintiffs (mll) Additional attachment(s) added on 9/14/2005 (mjc, ). (Entered: 10/26/1999)
250 Fax noticing receipt of #247 Order to attorney Edwin N Horne 10−26−99 3:00 p.m.; reset notice of compliance due for 11/9/99 for All Defendants (mll) Additional attachment(s) added on 9/14/2005 (mjc, ). (Entered: 10/26/1999)
251 Acknowledgement by Texas Dental Assoc of receipt on 10−29−99, indicating receipt of #247 Order; reset notice of compliance due for 11−12−99 (mll) Additional attachment(s) added on 10/21/2005 (mll, ). (Entered: 11/02/1999)
252 Acknowledgement by All Plaintiffs of receipt on 10−29−99, indicating receipt of #247 Order; reset notice of compliance due for 11/12/99 for All Plaintiffs (mll) Additional attachment(s) added on 10/21/2005 (mll, ). (Entered: 11/02/1999)
253 Notice concerning hours needed to present evidence re pltfs' first amended motion to enforce consent decree by All Plaintiffs, All Defendants (mll) Additional attachment(s) added on 9/14/2005 (mll, ). (Entered: 11/15/1999)
253 MOTION by All Plaintiffs, All Defendants for conference with the Court (mll) (Entered: 11/15/1999)
254 Defts' Monitoring Report, October 1999 (mll) Additional attachment(s) added on 9/14/2005 (mll, ). (Entered: 11/15/1999)
255 ORDER Motion hearing set for 3/13/00 for [227−1] amended motion to enforce consent decree, set for 3/13/00 for [208−1] motion to enforce consent decree (signed by Judge William W. Justice 11−24−99) cc:attys 12−3−99 (mll) (Entered: 12/03/1999)
256 MOTION by All Plaintiffs, All Defendants for fifth interim attorney fees (mll) Additional attachment(s) added on 9/14/2005 (mjc, ). (Entered: 12/20/1999)
257 Motion by All Plaintiffs concerning discovery and preliminary matters concerning the hearing on motion to enforce consent decree (mll) Additional attachment(s) added on 9/14/2005 (mll, ). (Entered: 12/27/1999)
258 ORDER Motion hearing set for 3/13/00 to 3/17/00 for [208−1] motion to enforce consent decree (signed by Judge William W. Justice 12−23−99) cc:attys 12−28−99 (mll) (Entered: 12/28/1999)
259 ORDER granting [256−1] motion for fifth interim attorney fees (signed by Judge William W. Justice 12−28−99) cc:attys 1−4−00 (mll) (Entered: 01/04/2000)
260 Response/Opposition by All Defendants to [257−1] motion concerning discovery and preliminary matters concerning the hearing on motion to enforce consent decree (mll) Additional attachment(s) added on 9/14/2005 (mll, ). (Entered: 01/07/2000)
261 MOTION by All Plaintiffs for leave to file Second Amended Motion to enforce consent decree (mll) Additional attachment(s) added on 9/14/2005 (mll, ). (Entered: 01/10/2000)

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 32 of 145

01/10/2000 01/25/2000 01/31/2000 02/01/2000 02/18/2000 02/25/2000 02/28/2000 02/28/2000 02/28/2000 03/06/2000
03/08/2000 03/08/2000 03/09/2000 03/09/2000 03/10/2000 03/13/2000 03/13/2000 03/13/2000 03/13/2000

262 ORDER granting [257−1] motion concerning discovery and preliminary matters concerning the hearing on motion to enforce consent decree (signed by Judge William W. Justice 1−6−00) cc:attys 1−11−00 (mll) (Entered: 01/11/2000)
263 Motion by All Plaintiffs concerning filing of exhibits with the Court (mll) Additional attachment(s) added on 9/14/2005 (mll, ). (Entered: 01/25/2000)
264 Motion by All Plaintiffs, All Defendants to modify paragraph 35 of the consent decree: schedule for medical check ups (mll) Additional attachment(s) added on 9/14/2005 (mll, ). (Entered: 02/02/2000)
265 ORDER granting [263−1] motion concerning filing of exhibits with the Court (signed by Judge William W. Justice 1−27−00 ) cc;attys 2−3−00 (mll) (Entered: 02/03/2000)
266 Notice of attorney appearance for Richard Ladd, Bridgett Cook, Susan Penfield, Linda Wertz, William Archer, Don Gilbert by Peter J Strelitz (mll) Additional attachment(s) added on 9/14/2005 (mll, ). (Entered: 02/18/2000)
269 Unopposed MOTION by all plaintiffs for leave to file various exhibits under seal (tkd) Additional attachment(s) added on 10/21/2005 (mll, ). (Entered: 02/29/2000)
267 ORDER granting [264−1] motion to modify paragraph 35 of the consent decree: schedule for medical check ups (signed by Judge William W. Justice ) cc: Judge Justice, all parties 2/29/00 (fnt) (Entered: 02/29/2000)
268 ORDER granting [261−1] motion for leave to file Second Amended Motion to enforce consent decree (signed by Judge William W. Justice ) cc: Judge Justice, all parties 2/29/00 (fnt) Modified on 02/29/2000 (Entered: 02/29/2000)
270 Second Amended [208−1] motion to enforce consent decree by All Plaintiffs (mll) Additional attachment(s) added on 9/14/2005 (mll, ). (Entered: 03/06/2000)
271 ORDER granting [269−1] motion for leave to file various exhibits under seal. Pltfs may file various exhibits under seal to protect the confidentiality of information about the identity of Medicaid receipients mentioned in the exhibits (signed by Judge William W. Justice 2−25−00) cc:attys 3−7−00 (mll) (Entered: 03/07/2000)
272 Objections to defts' proposed exhibits and Motion by All Plaintiffs for exclusion of defts' exhibits proposed exhibits from evidence (mll) Additional attachment(s) added on 11/15/2005 (mjc, ). (Entered: 03/08/2000)
273 Motion by All Plaintiffs to enforce consent decree (mll) Additional attachment(s) added on 9/26/2005 (mjc, ). (Entered: 03/08/2000)
274 Pretrial Brief filed by All Defendants (mll) Additional attachment(s) added on 9/26/2005 (mjc, ). (Entered: 03/09/2000)
275 Response/Objections by All Defendants to pltfs' trial exhibits (mll) Additional attachment(s) added on 9/26/2005 (mjc, ). (Entered: 03/09/2000)
276 Motion by All Plaintiffs to supplement list of witnesses and exhibits for hearing on motion to enforce consent decree (mll) Additional attachment(s) added on 9/26/2005 (mjc, ). (Entered: 03/13/2000)
277 Response by All Defendants to [270−2] second amended motion to enforce consent decree (mll) Additional attachment(s) added on 9/26/2005 (mjc, ). (Entered: 03/13/2000)
278 Response by All Defendants to [273−1] motion to enforce consent decree (mll) Additional attachment(s) added on 9/26/2005 (mjc, ). Additional attachment(s) added on 9/26/2005 (mjc, ). (Entered: 03/13/2000)
279 Response/Objections by All Defendants to pltfs' supplemental trial exhibits (mll) Additional attachment(s) added on 9/26/2005 (mjc, ). (Entered: 03/13/2000)
280 Reply by All Defendants to objections to defts' proposed exhibits and response to [272−1] motion for exclusion of defts' exhibits (mll) Additional attachment(s) added on 9/26/2005 (mjc, ). (Entered: 03/13/2000)

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 33 of 145

03/17/2000 03/17/2000 03/17/2000 03/17/2000 03/20/2000 03/20/2000 03/22/2000
03/23/2000 03/24/2000 03/27/2000 04/03/2000 04/03/2000 04/07/2000 04/07/2000 04/07/2000 04/10/2000 04/10/2000 04/10/2000 04/10/2000

283 Amended Witness list filed by All Defendants (mll) Additional attachment(s) added on 9/26/2005 (mjc, ). (Entered: 03/22/2000)
284 Amended Exhibit list by All Defendants (mll) Additional attachment(s) added on 9/26/2005 (mjc, ). (Entered: 03/22/2000)
285 Witness and Exhibit list by All Plaintiffs (mll) Additional attachment(s) added on 9/27/2005 (mjc, ). (Entered: 03/22/2000)
286 Supplemental Exhibit list by All Plaintiffs (mll) Additional attachment(s) added on 9/27/2005 (mjc, ). (Entered: 03/22/2000)
281 Amended Exhibit list by All Defendants (mll) Additional attachment(s) added on 9/26/2005 (mjc, ). (Entered: 03/20/2000)
282 ORDER granting [276−1] motion to supplement list of witnesses and exhibits for hearing on motion to enforce consent decree (signed by Judge William W. Justice 3−10−00 ) cc:attys 3−20−00 (mll) (Entered: 03/20/2000)
287 ORDER sua sponte that pltfs submit, within three calendar weeks from receipt of the transcript in this case, a detailed set of proposed findings of fact. Pltfs shall also submit a proposed order of enforcement to the Court. Defts shall, within two weeks of filing of pltfs' submissions, respond to pltfs' submissions. Defts may also make objections to pltfs' proposed order of enforcement (signed by Judge William W. Justice 3−20−00) cc:attys 3−23−00 (mll) (Entered: 03/23/2000)
288 Response by All Plaintiffs to [279−1] response/objections to pltfs' supplemental exhibits, and [275−1] response/objections to pltfs' exhibits (mll) Additional attachment(s) added on 9/27/2005 (mjc, ). (Entered: 03/23/2000)
Received pltfs' exhibits (3 boxes) (mll) (Entered: 03/28/2000)
Received defts' exhibits (2 boxes) (mll) (Entered: 03/28/2000)
289 MOTION by All Plaintiffs for leave to file Objections to defts' Exhibit D−119 (mll) Additional attachment(s) added on 9/27/2005 (mjc, ). (Entered: 04/04/2000)
290 MOTION by All Plaintiffs for leave to file Amended List of Witnesses and Exhibits for hearing on motion to enforce consent decree (mll) Additional attachment(s) added on 9/27/2005 (mjc, ). (Entered: 04/04/2000)
291 Response by All Defendants to [289−1] motion for leave to file Objections to defts' Exhibit D−119 (mll) Additional attachment(s) added on 9/27/2005 (mjc, ). (Entered: 04/10/2000)
297 ORDER granting [289−1] motion for leave to file Objections to defts' Exhibit D−119 (signed by Judge William W. Justice 3−31−00) cc:attys 4−12−00 (mll) (Entered: 04/12/2000)
298 Response/Objections by All Plaintiffs to Exhibit D−119 (Orchard Communications' Texas Health Steps Outreach Efficacy Study) (mll) Additional attachment(s) added on 9/27/2005 (mjc, ). (Entered: 04/12/2000)
292 Transcript of Hearing on Motion to enforce consent decree before Judge William Wayne Justice 3−13−2000 (Vol 1 of 5). Court Reporter: Logan Miller ( 150 pages) (mll) (pad, ). (Entered: 04/11/2000)
293 Transcript of hearing on motion to enforce consent decree before Judge William Wayne Justice 3−14−00 (vol 2 of 5). Court Reporter: Logan Miller ( 237 pages) (mll) Modified on 04/11/2000 (pad, ). (Entered: 04/11/2000)
294 Transcript of hearing on motion to enforce consent decree before Judge William Wayne Justice 3−15−00 (vol 3 of 5). Court Reporter: Logan Miller ( 224 pages) (mll) (pad, ). (Entered: 04/11/2000)
295 Transcript of hearing on motion to enforce consent decree held before Judge William Wayne Justice 3−16−00 (vol 4 of 5). Court Reporter: Logan Miller ( 215 pages) (mll) (pad, ). (Entered: 04/11/2000)

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 34 of 145

04/10/2000 04/17/2000 04/17/2000 04/28/2000 04/28/2000 04/28/2000 05/11/2000 05/11/2000 05/23/2000 05/30/2000 05/31/2000 06/14/2000 06/29/2000 06/29/2000 07/25/2000 07/25/2000 08/02/2000
08/02/2000 08/14/2000

296 Transcript of hearing on motion to enforce consent decree held before Judge William Wayne Justice 3−17−00 (vol 5 of 5). Court Reporter: Logan Miller ( 157 pages) (mll) (pad, ). (Entered: 04/11/2000)
299 ORDER granting [290−1] motion for leave to file Amended List of Witnesses and Exhibits for hearing on motion to enforce consent decree (signed by Judge William W. Justice 4−13−00 ) cc:attys 4−18−00 (mll) (Entered: 04/18/2000)
300 Amended Witness and Exhibit list for hearing on motion to enforce consent decree filed by All Plaintiffs (mll) Additional attachment(s) added on 9/27/2005 (mjc, ). (Entered: 04/18/2000)
301 Defts' Monitoring Report, January 2000 (mll) Additional attachment(s) added on 9/27/2005 (mjc, ). (Entered: 04/28/2000)
302 Defts' Monitoring Report, April 2000 (mll) Additional attachment(s) added on 9/27/2005 (mjc, ). (Entered: 04/28/2000)
303 MOTION by All Plaintiffs to extend time to file proposed findings of fact (mll) Additional attachment(s) added on 9/27/2005 (mjc, ). (Entered: 05/02/2000)
Received pltfs' Proposed Findings of fact and conclusions of law re defts' violations of consent decree and Enforcement Order; forwarded to Judge Justice. (mll) (Entered: 05/11/2000)
Terminated document #303, moot proposed finding of fact filed 5/11/00 (mpt) (Entered: 01/11/2001)
304 MOTION by All Defendants to extend time to file proposed findings of fact and conclusions of law (mll) Additional attachment(s) added on 9/14/2005 (mjc, ). (Entered: 05/23/2000)
306 ORDER granting [304−1] motion to extend time to file proposed findings of fact and conclusions of law (signed by Judge William W. Justice 5−26−00) cc:attys 6−6−00 (mll) (Entered: 06/06/2000)
305 Post−Trial Brief and Proposed findings of fact filed by All Defendants (fnt) Additional attachment(s) added on 9/22/2005 (mll, ). (Entered: 06/01/2000)
307 MOTION by All Plaintiffs for leave to file Reply to defts' post−trial brief and proposed findings of fact (mll) Additional attachment(s) added on 9/22/2005 (mll, ). (Entered: 06/16/2000)
308 ORDER granting [307−1] motion for leave to file Reply to defts' post−trial brief and proposed findings of fact (signed by Judge William W. Justice 6−22−00) cc:attys 6−30−00 (mll) (Entered: 06/30/2000)
309 Response by All Plaintiffs to [305−1] post trial brief and proposed findings of fact (mll) Additional attachment(s) added on 9/22/2005 (mll, ). (Entered: 06/30/2000)
310 Motion by All Plaintiffs for permission to supplement their proposed findings of fact and conclusions of law (mll) Additional attachment(s) added on 9/22/2005 (mll, ). (Entered: 07/25/2000)
311 Motion by All Plaintiffs for permission to negotiate with defts concerning interim attys' fees for 1999 (mll) Additional attachment(s) added on 9/14/2005 (mjc, ). (Entered: 07/25/2000)
312 ORDER granting [311−1] motion for permission to negotiate with defts concerning interim attys' fees for 1999. Pltfs shall provide written demand to defts' counsel by 8−14−00. Pltfs may file a motion for interim fees for 1999 at a later date, should negotiations fail (signed by Judge William W. Justice 7−31−00) cc:attys 8−3−00 (mll) (Entered: 08/03/2000)
313 ORDER granting [310−1] motion for permission to supplement their proposed findings of fact and conclusions of law (signed by Judge William W. Justice 7−31−00) cc:attys 8−3−00 (mll) (Entered: 08/03/2000)
314 Defendants' Monitoring Report, July 2000 (fnt) Additional attachment(s) added on 9/22/2005 (mll, ). (Entered: 08/14/2000)

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 35 of 145

08/14/2000 08/14/2000
08/14/2000 08/14/2000 08/18/2000 08/18/2000 08/21/2000 08/24/2000 08/24/2000 08/24/2000 09/11/2000
09/11/2000 09/18/2000 09/25/2000 09/26/2000

315 Memorandum Opinion and Order ( signed by Judge William W. Justice ) All parties 8/14/00 (fnt) Modified on 08/23/2000 (Entered: 08/14/2000)
316 ORDER, that defendants shall mail to the court and opposing counsel, within sixty days of the issuance of this order, proposed corrective action plans to remedy each violation of the decree detailed in part one of this court's Memorandum Opinion. ORDERED that, after defendants have submitted their proposals, plaintiffs may present their comments, if any, to the court and opposing counsel within thirty days of their receipt of defendants' corrective action plans. In addition, plaintiffs may submit their own proposed corrective action plan by the aformentioned date. It is further ORDERED that, within fifteen business days of plaintiff's submission of comments or alternative plans, the parties shall meet to discuss the proposals and to determine if they can jointly suggest corrective action plans to the court. set notice of compliance due for 10/16/00 for All Plaintiffs (signed by Judge William W. Justice ) cc: Judge Justice, all parties 8/14/00 (fnt) Modified on 08/23/2000 (Entered: 08/14/2000)
Terminated document #208, 227−1, 227−2, 270−1, 270−2 per order #315 on 8/14/00. (mpt) (Entered: 08/18/2000)
Terminated document #273 granted in part per memorandum opinion #315, on 8/14/00. (mpt) (Entered: 02/12/2001)
Terminated document #253−1 requesting conference with court − hearing held on 3/13/00. (mpt) (Entered: 08/18/2000)
318 Acknowledgement of receipt on 8/15/00 of order 315 and 316 by Edward Bradbury Cloutman, III. (fnt) Additional attachment(s) added on 9/27/2005 (mjc, ). (Entered: 08/21/2000)
317 Acknowledgement of receipt on 8/16/00 of order 316 Susan Finkelstein. (fnt) Additional attachment(s) added on 9/27/2005 (mjc, ). (Entered: 08/21/2000)
319 Acknowledgement by All Defendants of receipt on 8/16/00 of order 315 and 316. (fnt) Additional attachment(s) added on 9/27/2005 (mjc, ). (Entered: 08/29/2000)
320 Acknowledgement by James Curtis Brown, Crystal Noelevol Brown, Jeremiah DeMark Phillips, Russell Kline Walton, Linda Frew, Carla Frew of receipt on 8/16/00., reset notice of compliance due for 10/16/00 for All Plaintiffs (fnt) Additional attachment(s) added on 9/27/2005 (mjc, ). (Entered: 08/29/2000)
321 Acknowledgement by Texas Dental Assoc of receipt on 8/22/00 of orders 315 and 316. (fnt) Additional attachment(s) added on 9/27/2005 (mjc, ). (Entered: 08/29/2000)
322 Notice of appeal by defendants Don Gilbert, Texas Commissioner of the Health and Human Services Commission, William R. Archer, III, Texas Commissioner of Health, Richard Ladd, Commissioner of the Texas Health and Human Services Commission, Linda Wertz, Texas State Medicaid Director, Bridgett Cook, employee of Texas Department of health, Susan Penfield, MD, employee of Texas Department of Health, and Beverly Koops, MD, employee of Texas Department of Health, from the Order of the District Court for the Eastern District of Texas, Paris Div, entered n 8/14/00, granting plaintiffs' motion to enforce the consent decree. Fee Status: paid (notice of appeal and docket sheet sent to Fifth Circuit) cc: WWJ, attys (w/transcript order form to atty Gregory Coleman). Original forwarded to Tyler Division. (former empl) Additional attachment(s) added on 9/22/2005 (mll, ). (Entered: 09/20/2000)
USCA appeal fee: $105.00 [322−1] appeal, receipt #103024 (former empl) (Entered: 09/20/2000)
Transcript requested [322−1] appeal for motion to enforce consent decree hearings held before Judge Justice the dates of March 13 − 17, 2000. (ehs) (Entered: 10/04/2000)
323 MOTION by All Defendants to stay all injunctive relief provided by the court's 8/14/00 order pending appeal (ehs) Additional attachment(s) added on 9/22/2005 (mll, ). (Entered: 09/28/2000)
324 ORDER that the plaintiffs/appellees file a reply to the defendants' motion to stay proceedings pending appeal on or before 10/2/00 (signed by Judge William W. Justice 9/25/00) (mpt) (Entered: 09/29/2000)

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 36 of 145

09/28/2000 10/02/2000 10/02/2000 10/03/2000 10/03/2000 10/06/2000 10/10/2000 10/10/2000
10/12/2000 10/18/2000 10/18/2000
10/23/2000 10/23/2000
11/13/2000 11/17/2000 11/17/2000 11/20/2000 11/20/2000

328 ORDER denying [326−1] motion to extend time to fiel response to defendants' motion to stay (signed by Judge William W. Justice ) cc: Judge Justice, all parties 10/5/00 (fnt) (Entered: 10/05/2000)
325 Response by All Plaintiffs (in opposition) to [323−1] motion to stay all injunctive relief provided by the court's 8/14/00 order pending appeal (fnt) Additional attachment(s) added on 9/22/2005 (mll, ). (Entered: 10/03/2000)
326 Motion by All Plaintiffs to extend time to file a response to defendants' motion to stay . (fnt) Modified on 10/05/2000 Additional attachment(s) added on 9/22/2005 (mll, ). (Entered: 10/03/2000)
Terminated document #326 by order #324 denying motion for extension of time to file response to defendants' "Motion to Stay" (fnt) (Entered: 10/03/2000)
327 MOTION by All Defendants to extend time to file corrective action plan (fnt) Additional attachment(s) added on 9/22/2005 (mll, ). (Entered: 10/03/2000)
329 Response by All Defendants to [325−1] motion response supporting motion for stay (fnt) Additional attachment(s) added on 9/22/2005 (mll, ). (Entered: 10/06/2000)
330 ORDER denying [323−1] motion to stay all injunctive relief provided by the court's 8/14/00 order pending appeal (signed by Judge William W. Justice ) cc: Judge Justice, all parties 10/10/00 (fnt) (Entered: 10/10/2000)
331 ORDER granting [327−1] motion to extend time to file corrective action plan, ORDERED that defendants submit their proposed corrective action plans in accordance with the terms imposed by this court's August 14, 2000 order no later than October 27, 2000 reset notice of compliance due for 10/27/00 for All Defendants (signed by Judge William W. Justice ) cc: Judge Justice, all parties 10/10/00 (fnt) (Entered: 10/10/2000)
Notice of Docketing ROA from USCA Re: [322−1] appeal USCA NUMBER: 00−41112 (former empl) (Entered: 10/12/2000)
332 MOTION by All Plaintiffs to modify paragraph 19 of consent decree (fnt) Additional attachment(s) added on 9/22/2005 (mll, ). (Entered: 10/18/2000)
333 FAXED copy of appellate order in USCA #00−41112: Appellants' motion for stay of the district court's order of 8/14/00 during the pendency of this appeal is granted. Appellants' alternative motion for stay until conclusion of the 77th session of the Texas Legislature is denied. cc: Judge Justice (faxed by Tyler), Tyler (faxed), attys (former empl) Modified on 11/01/2000 (Entered: 10/19/2000)
334 Fifth Circuit Letter/Notice of granting of extension of time to and including 11/15/00 for filing the record on appeal in this case. (former empl) Additional attachment(s) added on 9/22/2005 (mll, ). (Entered: 10/30/2000)
335 Certified copy of USCA Order in #: 00−41112: Appellants' motion for stay of the district court's order of 8/14/00 during the pendency of this appeal is granted. Appellants' alternative motion for stay until conclusion of the 77th session of the Texas Legislature is denied. cc: WWJ attys (ehs) (Entered: 11/01/2000)
336 Designation by Don Gilbert of record on appeal (ehs) Additional attachment(s) added on 9/22/2005 (mll, ). (Entered: 11/15/2000)
USCA Letter granting request for an extension of time to and including 12/8/00 for the filing of the record on appeal in this case. (ehs) (Entered: 11/17/2000)
337 FAXED − Designation by All Plaintiffs of record on appeal (ehs) Modified on 11/20/2000 Additional attachment(s) added on 9/22/2005 (mll, ). (Entered: 11/17/2000)
338 Designation of record on appeal filed by plaintiff All Plaintiffs (ehs) Additional attachment(s) added on 9/22/2005 (mll, ). (Entered: 11/20/2000)
339 Defendant's (Monitoring) Report for October 2000 (fnt) Additional attachment(s) added on 9/22/2005 (mll, ). Additional attachment(s) added on 9/27/2005 (mll, ). Additional attachment(s) added on 9/27/2005 (mll, ). (Entered: 11/21/2000)

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 37 of 145

12/07/2000 12/14/2000 12/27/2000 01/05/2001 01/16/2001 01/16/2001 01/17/2001 01/25/2001
01/29/2001 01/29/2001
02/02/2001 02/07/2001 02/15/2001 02/27/2001 03/01/2001 03/01/2001 03/01/2001

Certified and transmitted record on appeal to U.S. Court of Appeals: [322−1] appeal − transmitted fourteen volumes of documents and 5 boxes of exhibits − total of 7 boxes (ehs) Modified on 08/01/2001 (Entered: 12/07/2000)
340 ORDER granting [332−1] motion to modify paragraph 19 of consent decree (signed by Judge William W. Justice ) cc: Judge Justice, all parties 12/18/00 (fnt) (Entered: 12/18/2000)
USCA Notice of receipt of record on appeal on 12/11/00 receiving fourteen volumes of documents and five boxes of exhibits (ehs) (Entered: 12/27/2000)
341 MOTION by All Plaintiffs for leave to file First Supplemental Complaint (Opposed) (fnt) Additional attachment(s) added on 9/21/2005 (mjc, ). (Entered: 01/08/2001)
342 Stipulation concerning interim attorney's fees and costs for 1999 (fnt) Additional attachment(s) added on 9/21/2005 (mjc, ). (Entered: 01/17/2001)
343 (Unopposed) Motion by All Plaintiffs with memorandum in support for interim attorney fees and costs for 1999 (fnt) Additional attachment(s) added on 9/22/2005 (rvw, ). Additional attachment(s) added on 9/22/2005 (rvw, ). (Entered: 01/17/2001)
344 (Unopposed) Motion by All Defendants to extend time to file their response to plaintiff's Motion for Permission to file their First Supplemental Complaint. (fnt) Additional attachment(s) added on 9/27/2005 (mll, ). (Entered: 01/17/2001)
345 ORDER granting [344−1] motion to extend time to file their response, It is therefore ORDERED that Defendants shall file their post−trial brief and proposed findings of fact in this case with the Court on or before January 29, 2001 set notice of compliance due for 1/29/01 for All Defendants (signed by Judge William W. Justice ) cc: Judge Justice, all parties 1/25/01 (fnt) (Entered: 01/25/2001)
346 Response by All Defendants to [341−1] motion for leave to file First Supplemental Complaint (Opposed) (fnt) Additional attachment(s) added on 9/27/2005 (mll, ). (Entered: 01/30/2001)
347 ORDER granting [343−1] motion for interim attorney fees and costs for 1999, granting [342−1] modifier stipulation. The Court determines that $210,000 is a reasonable recovery for the work that Plaintiffs completed and the cost they incurred from January 1 through December 31, 1999. This includes the following fees, costs and expenses: Ed Cloutman fees: $4,100.22/costs $78.15; Jane Swanson fees: $92,254.88/costs $2,358.81; Susan F. Zinn fees: $108,655.74/costs $2,552.20. The Court orders Defendants to make payment no earlier than January 1, 2001 and no later than February 28, 2001. (signed by Judge William W. Justice ) cc: Judge Justice, all parties 1/31/01 (fnt) (Entered: 01/31/2001)
348 Reply by All Plaintiffs to response to [341−1] motion for leave to file First Supplemental Complaint (Opposed) (fnt) Additional attachment(s) added on 9/27/2005 (mll, ). (Entered: 02/02/2001)
349 Defendants' Monitoring Report, January 2001 (fnt) Additional attachment(s) added on 9/27/2005 (mll, ). (Entered: 02/07/2001)
350 MOTION by All Plaintiffs to substitute dft Dr Charles Bell for Dr William R Archer (rvw) Additional attachment(s) added on 9/14/2005 (mjc, ). (Entered: 02/15/2001)
USCA Notice of receipt of supplemental record on appeal on 2/2/01 receiving six volumes of transcripts (ehs) (Entered: 02/27/2001)
351 ORDER granting [350−1] motion to substitute dft Charles E Bell MD for William R Archer III, MD (signed by Judge William W. Justice ) cc: Parties, Judge Justice 3/1/01 (rvw) Additional attachment(s) added on 11/15/2005 (mjc, ). (Entered: 03/01/2001)
351 Substitution of party. Invovlement terminated for defendant William Archer. The correct party becomes defendant Charles Bell. (rvw) (Entered: 03/01/2001)
352 Fax noticing receipt of order #351 to attorney Peter J Strelitz for defendant Charles E Bell ., Gregory Scott Coleman for defendant Don Gilbert, Edwin N Horne for defendant Don Gilbert, Susan Finkelstein Zinn for plaintiff Gloria Padilla, Mark J Hanna for movant Texas Dental Assoc, Sharon E Reynerson for plaintiff Gloria

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 38 of 145

03/12/2001 03/12/2001
03/12/2001 03/23/2001 03/26/2001 04/20/2001 04/20/2001 04/30/2001 05/07/2001 05/10/2001
05/17/2001 05/17/2001 06/14/2001 06/14/2001 08/03/2001 09/27/2001 10/09/2001 10/09/2001

Padilla, Jane Kathryn Swanson for plaintiff Mary Jane Garza, Jeffrey S Levin for plaintiff Mary Jane Garza, Edward Bradbury Cloutman III for plaintiff All Plaintiffs, Joaquin Amaya Jr for plaintiff All Plaintiffs, Rodolfo David Sanchez for plaintiff All Plaintiffs, Israel Morales Reyna for plaintiff All Plaintiffs 3/1/01 . (rvw) Additional attachment(s) added on 9/14/2005 (mjc, ). (Entered: 03/01/2001)
353 ORDER denying as moot [272−1] motion for exclusion of defts' exhibits proposed exhibits from evidence (signed by Judge William W. Justice ) cc: parties 3/13/01 (rvw) (Entered: 03/13/2001)
354 ORDER granting [341−1] motion for leave to file First Supplemental Complaint (Opposed). Ordered that dft's respond to allegations contained within the pla's first Supplemental Complaint within 20 days of filing of Supplemental Complaint (signed by Judge William W. Justice ) cc: parties 3/13/01 (rvw) Modified on 03/13/2001 (Entered: 03/13/2001)
355 Supplemental Complaint filed by All Plaintiffs and class members (rvw) (Entered: 03/13/2001)
356 MOTION by All Defendants to extend time to file responses to first suppl complaint (rvw) Additional attachment(s) added on 9/14/2005 (mjc, ). (Entered: 03/23/2001)
357 ORDER granting [356−1] motion to extend time, to answer first supplemental complaint Set answer due on 4/20/01 for All Defendants (signed by Judge William W. Justice ) cc: parties 3/26/01 (rvw) (Entered: 03/26/2001)
358 MOTION by All Defendants to dismiss case (rvw) Additional attachment(s) added on 9/22/2005 (mjc, ). (Entered: 04/20/2001)
358 Answer to first supplemental complaint by All Defendants (rvw) (Entered: 04/20/2001)
359 Response by All Plaintiffs to [358−1] motion to dismiss case (mll) (Entered: 04/30/2001)
360 Unopposed MOTION by All Plaintiffs concerning negotiations about interim attorney's fees for the year 2000 (rvw) Additional attachment(s) added on 9/14/2005 (mjc, ). (Entered: 05/08/2001)
361 ORDER granting [360−1] motion concerning negotiations about interim attorney's fees, Ordered that pla shall send demand letter to dft no later than 6/15/01 concerning fees, dft shall respond within 60 days of receipt, pla shall return to court to resolve if cannot resolve themselves ( signed by Judge William W. Justice ) cc: parties 5/10/01 (rvw) (Entered: 05/10/2001)
362 ORDER denying [358−1] motion to dismiss case ( signed by Judge William W. Justice ) cc: parties 5/17/01 (rvw) (Entered: 05/17/2001)
363 Monitoring Report for April 2001 filed by All Defendants (rvw) Additional attachment(s) added on 9/14/2005 (mjc, ). (Entered: 05/17/2001)
364 Notice of interlocutory appeal of [362−1] order by All Defendants. Notice of appeal, order and docket sheet mailed to USCA 6/15/01 (rvw) Additional attachment(s) added on 9/14/2005 (mjc, ). (Entered: 06/15/2001)
USCA appeal fee: paid [364−1] appeal Receipt #614446 (rvw) (Entered: 06/15/2001)
365 Monitoring Report, July 2001 filed by All Defendants (rvw) Additional attachment(s) added on 10/12/2005 (mll, ). (Entered: 08/03/2001)
Certified and transmitted record on appeal to U.S. Court of Appeals: [364−1] appeal − transmitted 2nd supplemental record − four volume documents (ehs) (Entered: 09/27/2001)
Notice by USCA of receipt of supplemental record on appeal receiving four volume documents on 10/1/01 (ehs) (Entered: 10/09/2001)
366 USCA ORDER granting appellant Richard Ladd's motion to dismiss deft from this appeal as he is no longer the Tx Commissioner of Health and Human Services cc: all

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 39 of 145

11/16/2001 11/16/2001 12/10/2001 12/20/2001
01/23/2002 02/08/2002 02/08/2002 02/19/2002 02/21/2002 03/29/2002 05/02/2002 05/03/2002 05/24/2002 09/04/2002
09/04/2002
09/04/2002

parties, WWJ (ehs) Additional attachment(s) added on 9/13/2005 (mjc, ). (Entered: 11/05/2001)
367 Monitoring Report for October 2001 filed by All Defendants (rvw) Additional attachment(s) added on 9/13/2005 (mjc, ). (Entered: 11/19/2001)
368 Status Report of Services to Plaintiff Families Garcia Family and Garvin Family filed by Edwin N Horne, AG (rvw) Additional attachment(s) added on 9/13/2005 (mjc, ). (Entered: 11/21/2001)
369 MOTION by All Plaintiffs to dismiss party dft Beverly Koops MD and To substitute party Dr Charles Bell for Dr Eduardo Sanchez as commissioner of health (rvw) Additional attachment(s) added on 9/13/2005 (mjc, ). (Entered: 12/11/2001)
370 ORDER granting [369−1] motion to dismiss party dft Beverly Koops MD, granting [369−2] motion To substitute party Dr Charles Bell for Dr Eduardo Sanchez as commissioner of health ( signed by Judge William W. Justice ) cc: parties 12/21/01 (rvw) (Entered: 12/21/2001)
371 Notice by All Plaintiffs of Decree Violation and Inaccuracy in Defendants Oct 2001 Report to the Court (rvw) Additional attachment(s) added on 9/13/2005 (mjc, ). (Entered: 01/24/2002)
372 Response by All Plaintiffs to [371−1] Notice of decree violation and inaccuracy in dft Oct 2001 report to the court (rvw) Additional attachment(s) added on 9/13/2005 (mjc, ). (Entered: 02/08/2002)
373 Amended Report Re: Paragraph 305 of the Oct Report 2001 monitoring Report filed by All Defendants (rvw) Additional attachment(s) added on 9/13/2005 (mjc, ). (Entered: 02/08/2002)
374 Monitoring Report for January 2002 filed by All Defendants (rvw) Additional attachment(s) added on 9/13/2005 (mjc, ). (Entered: 02/20/2002)
375 Stipulation filed by All Plaintiffs concerning partial interim attorney's fees and costs for 2000 (rvw) Additional attachment(s) added on 9/13/2005 (mjc, ). (Entered: 02/22/2002)
376 ORDER granting [375−1] Notice /Motion for Partial Interim Attorney's Fees for 2000. Dft's ordered to make payment no later than May 1, 2002. ( signed by Judge William W. Justice ) cc: parties 3/29/02 (rvw) (Entered: 03/29/2002)
377 MOTION by All Defendants to extend time to pay partial interim attorney's fees for 2000 (rvw) Additional attachment(s) added on 9/13/2005 (mjc, ). (Entered: 05/02/2002)
378 Response by All Plaintiffs to [377−1] motion to extend time to pay partial interim attorney's fees for 2000 (rvw) Additional attachment(s) added on 9/13/2005 (mjc, ). (Entered: 05/03/2002)
379 Monitoring Report for April 2002 filed by Defendants (ehs) Additional attachment(s) added on 9/13/2005 (mjc, ). (Entered: 05/24/2002)
380 Certified copy of judgment of USCA vacated the judgment of the District Court remanding for further proceedings in accordance with the opinion of the USCA. Ordered that plaintiffs−appellees pay to the defts−appellants the costs on appeal to be taxed by the Clerk of the USCA. Opinion attached to the USCA order for #00−41112. Issued as mandate 8/15/02 USCA #: 01−40667 cc: all parties, WWJ (ehs) (Entered: 09/04/2002)
381 Certified copy of judgment of USCA vacating the judgment of the district court and remanding for further proceedings in accordance with the opinion of the USCA. Ordered that pltf's−appellees pay to the deft's appellant the costs on appeal to be taxed by the Clerk of the USCA. Issued as mandate 8/15/02 USCA #: 00−41112. Opinion issued for appeal #01−40667 also cc: WWJ, all parties (ehs) (Entered: 09/04/2002)
Received Bill of Costs from USCA in the amount of $440.60 to be taxed against the defendants (ehs) (Entered: 09/04/2002)

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 40 of 145

09/04/2002 09/04/2002 01/31/2003 02/03/2003 02/07/2003
02/21/2003 03/03/2003 03/07/2003 03/10/2003 03/10/2003 03/24/2003 03/31/2003 04/07/2003 04/22/2003 02/25/2004 03/15/2004 04/05/2004 05/19/2004
06/01/2004
08/05/2004

Received Bill of Costs from USCA in the amount of $365.60 to be taxed against the plaintiffs (ehs) (Entered: 09/04/2002)
Record on appeal returned from U.S. Court of Appeals: received eighteen volume documents and six transcripts (ehs) (Entered: 09/09/2002)
Mailed letter to defts' atty Peter Strelitz notifying him that he is not admitted to practice in the Eastern District (suspended) and requested payment of bar dues (mll) (Entered: 01/31/2003)
382 ORDER, that plas' SHOW CAUSE in writing why this case should not be dismissed within 30 days; set notice of compliance due for 3/6/03 for All Plaintiffs (signed by Judge William W. Justice) cc: WMJ, parties 2/6/03 (mjm) (Entered: 02/06/2003)
383 Fax noticing receipt of Order #382 to attorney Jane Kathryn Swanson for plaintiff CLASS MEMBERS, Susan Finkelstein Zinn for plaintiff CLASS MEMBERS, Gregory Scott Coleman for defendant Linda Wertz 2/7/03 14:19. (mjm) Additional attachment(s) added on 11/15/2005 (mjc, ). (Entered: 02/11/2003)
384 Notice of substitution of counsel by Richard Ladd, Bridgett Cook, Susan Penfield, Beverly Koops, Linda Wertz, William Archer Substituting Melanie P. Sarwal for Gregory S. Coleman(rvw) Modified on 02/24/2003 (Entered: 02/24/2003)
385 Response by All Plaintiffs to [382−1] order to show cause (mjc) (Entered: 03/04/2003)
386 ORDER withdrawing [382−1] order (signed by Judge William W. Justice) cc: WWJ, parties 3/10/03 (mjm) (Entered: 03/10/2003)
387 MOTION by All Defendants to set date for reply to pla's response to 2/3/03 Order (mjm) (Entered: 03/11/2003)
388 Notice of substitution of dft official (mjm) (Entered: 03/11/2003)
Supreme Court Notice to the court advising that the petition for writ of certiorari is granted and limited to questions 1 and 2 presented by the petition. (pkb) (Entered: 03/25/2003)
Notice of Docketing ROA from US Supreme Court Re: US Supreme Court NUMBER: 02−628 (ehs) (Entered: 04/07/2003)
Certified and transmitted record on appeal to US Supreme Court, Washington, D. C. − transmitted eighteen volume documents and six transcripts (ehs) (Entered: 04/07/2003)
Notice by the Supreme Court of receipt of 18 volume documents and 6 transcripts on 4/14/03 (ehs) (Entered: 04/22/2003)
Appeal Record Returned from U.S. Supreme Court: 364 Notice of Interlocutory Appeal − receiving 18 volumes documents and five transcripts. Transcript no. 197 not returned. (mjc, ) (Entered: 02/25/2004)
389 USCA ORDER granting unopposed motion to file supplemental briefs; granting unopposed motion of appellants' to substitute Commissioner Albert Hawkins for former Commissioner Don Gilbert. (mjc, ) (Entered: 03/17/2004)
Appeal Record Returned: 364 Notice of Interlocutory Appeal. Received transcript No. 197 from U.S. Supreme Court. Placed with rest of file. (mjc, ) (Entered: 04/06/2004)
Certified and Transmitted Record on Appeal to US Court of Appeals re 322 Notice of Appeal, 364 Notice of Interlocutory Appeal − transmitting 14 volumes documents, five volumes supplemental documents, six transcripts and six boxes of exhibits (mjc ) (Entered: 05/19/2004)
Appeal Remark re 322 Notice of Appeal, 364 Notice of Interlocutory Appeal: Notice from USCA of receipt of record on appeal on 5/21/04 − receiving 14 volumes of documents, five volumes of supplemental documents, six transcripts and six boxes of exhibits (mjc ) (Entered: 06/02/2004)
390 MANDATE of USCA as to 322 Notice of Appeal (#00−41112), filed by Richard Ladd, Bridgett Cook, Susan Penfield, Beverly Koops, Linda Wertz, Don Gilbert, William Archer. ORDERED that the judgment of the District Court is affirmed in part

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 41 of 145

08/05/2004
08/05/2004 08/10/2004
08/18/2004 08/20/2004 09/23/2004 09/23/2004 10/15/2004
10/29/2004 10/29/2004 10/29/2004

and dismissed in part and the cause is remanded to the District Court for further proceedings in accordance with the opinion of this court. FURTHER ORDERED that defendants−appellants pay to plaintiffs−appellees the costs on appeal to be taxed by the clerk of this court. Issued as mandate 7/29/04. Bill of costs attached. (mjc, ) (Entered: 08/05/2004)
391 MANDATE of USCA as to 364 Notice of Interlocutory Appeal (#01−40667) filed by All Defendants. ORDERED that the judgment of the District Court is affirmed in part and dismissed in part, and the cause is remanded to the District Court for further proceedings in accordance with the opinion of this court. FURTHER ORDERED that defendants−appellants pay to plaintiffs−appellees the costs on appeal to be taxed by the Clerk of this Court. Issued as mandate 7/29/04. Bill of costs attached. (mjc ) (Entered: 08/05/2004)
Appeal Record Returned: 322 Notice of Appeal, 364 Notice of Interlocutory Appeal − receiving 14 volumes of documents, five volumes of supplemental documents, six transcripts and six boxes of exhibits (mjc) (Entered: 08/05/2004)
392 ORDER of USCA as to 322 Notice of Appeal, filed by Richard Ladd, Bridgett Cook, Susan Penfield, Beverly Koops, Linda Wertz, Don Gilbert, William Archer, 364 Notice of Interlocutory Appeal filed by All Defendants. ORDERED that appellees' unopposed motion to vacate the mandate of 8/15/02 is granted. FURTHER ORDERED that appellees' unopposed motion to direct the clerk to tax costs of the three rounds of appeals against appellants is granted. Issued as mandate 7/29/04. (mjc ) (Entered: 08/11/2004)
393 MOTION for status conference by All Plaintiffs. (Attachments: # 1 Exhibits# 2 Text of Proposed Order)(mjc ) (Entered: 08/19/2004)
Six boxes of exhibits placed in second floor storeroom (mjc ) (Entered: 08/20/2004)
394 SCHEDULING ORDER: Status Conference set for 10/1/2004 01:30 PM before William W. Justice.. Signed by Judge William W. Justice on 9/23/04. (mpt, ) (Entered: 09/23/2004)
Notified Attorney, Mark J Hanna, Melanie Plowman Sarwal, Per GO 04−12, this court no longer accepts pleadings in paper form. The Clerk will no longer mail or fax notices or orders to parties. All notices and orders generated by this court shall be sent electronically. (mpt, ) (Entered: 09/23/2004)
395 OCTOBER 2004 SCHEDULING ORDER − Defendants SHALL file their Motion to Modify or Dissolve the Consent Decree by 10/31/04; plaintiffs SHALL respond within 20 days. Defendants SHALL file a regular quarterly report by 10/31/04 and SHALL continue to file such reports. By 10/31/04, defendants SHALL file their catch−up monitoring report. Plaintiffs SHALL file their Motion for Award of Interim Attorneys Fees and Costs by 10/31/04; and such filing is exempt from electronic filing requirements. Defendants SHALL file their response within 20 days . Signed by Judge William W. Justice on 10/13/04. (mjc ) (Entered: 10/18/2004)
396 MOTION to Set Aside Judgment Rule 60(b) Motion for Relief from Judgment by All Defendants. (Attachments: # 1 Appendix Tab B# 2 Appendix Tab B (part 2)# 3 Appendix Tab C# 4 Appendix Tab D# 5 Appendix Tab E# 6 Appendix Tab F# 7 Appendix Attachment A − part 1# 8 Appendix Attachment A part 2)(Stowe, Matthew) (Entered: 10/29/2004)
397 MOTION to Substitute Attorney by All Defendants. (Stowe, Matthew) (Entered: 10/29/2004)
***FILED IN ERROR. Document # 396, Motion for Relief from Judgment (Rule 60(b). PLEASE IGNORE.***

THIS DOCUMENT WAS NOT SIGNED BY THE ATTORNEY −− THE ATTORNEY REFILED THIS MOTION AS DKT #401, BUT THERE ARE NO ATTACHMENTS −− CALLED ATTORNEY AND ADVISED THAT THE MOTION NEEDED TO BE REFILED WITH THE ATTACHMENTS −− ALSO PROPOSED ORDER NEEDS TO BE FILED AS AN ATTACHMENT (baf, ) (Entered: 11/03/2004)

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 42 of 145

10/29/2004

***FILED IN ERROR. Document # 397, Motion to Substitute Counsel. PLEASE IGNORE.***

11/01/2004 11/01/2004 11/01/2004
11/01/2004

THIS DOCUMENT IS NOT SIGNED AND DOES NOT HAVE A PROPOSED ORDER ATTACHED −−− CALLED ATTORNEY AND LEFT VOICE MAIL ADVISING THAT THIS DOCUMENT NEEDED TO BE CORRECTED AND REFILED WITH THE PROPOSED ORDER ATTACHED (baf, ) (Entered: 11/03/2004)
398 STATUS REPORT October 2004 Quarterly Report by All Defendants. (Attachments: # 1 # 2)(Horne, Edwin) (Entered: 11/01/2004)
399 STATUS REPORT Defendants' 2004 Consent Decree Status/Summary Monitoring Report by All Defendants. (Attachments: # 1)(Horne, Edwin) (Entered: 11/01/2004)
400 MOTION for Interim Attorneys' Fees and Costs by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(mjc ) Additional attachment(s) added on 11/2/2004 (mjc, ). Additional attachment(s) added on 11/2/2004 (rvw, ). Additional attachment(s) added on 11/2/2004 (rvw, ). Additional attachment(s) added on 11/2/2004 (rvw, ). Additional attachment(s) added on 11/2/2004 (mjc, ). (Entered: 11/01/2004)
***FILED IN ERROR. Document # 398, Status Report Dft's Monitoring Report, October 2004. PLEASE IGNORE.***

11/01/2004

THIS DOCUMENT IS NOT SIGNED BY THE ATTORNEY −− CALLED ATTORNEY AND LEFT A VOICE MAIL THAT THIS DOCUMENT NEEDED TO BE CORRECTED AND REFILED (baf, ) (Entered: 11/03/2004)
***FILED IN ERROR. Document # 399, Status Report Dft's 2004 Consent Decree Status/Summary Monitoring Report. PLEASE IGNORE.***

11/02/2004 11/02/2004

THIS DOCUMENT IS NOT SIGNED BY THE ATTORNEY −− CALLED ATTORNEY AND LEFT VOICE MAIL THAT THIS DOCUMENT NEEDED TO BE CORRECTED AND REFILED (baf, ) (Entered: 11/03/2004)
401 MOTION to Set Aside Judgment Corrected Rule 60(b) Motion by All Defendants. (Stowe, Matthew) (Entered: 11/02/2004)
***FILED IN ERROR. Document # 401, Corrected Motion for Relief from Judgment (Rule 60(b). PLEASE IGNORE.***

11/04/2004
11/04/2004 11/04/2004 11/04/2004 11/04/2004

THIS DOCUMENT DOES NOT HAVE THE ATTACHMENTS THAT THE ORIGINAL MOTION (DKT 396) HAD −− CALLED ATTORNEY AND ADVISED THAT THE CORRECTED MOTION NEEDED TO BE REFILED IN ITS ENTIRETY WITH ATTACHMENTS −− ALSO PROPOSED ORDER NEEDS TO BE FILED AS AN ATTACHMENT (baf, ) (Entered: 11/03/2004)
402 MOTION to Set Aside Judgment Rule 60(b) Motion for Relief from Judgment by All Defendants. (Attachments: # 1 # 2 Appendix Tab A − part 1# 3 Appendix Tab A − part 2# 4 Appendix Tab B − part 1# 5 Appendix Tab B − part 2# 6 Appendix Tab C − Affidavit of Bruch# 7 Appendix Tab D − Affidavit of Bryant# 8 Appendix Tab E − Affidavit of Altenhoff# 9 Appendix Tab F − Affidavit of Bultman# 10)(Stowe, Matthew) (Entered: 11/04/2004)
403 MOTION to Substitute Attorney by All Defendants. (Attachments: # 1 Proposed Order)(Stowe, Matthew) (Entered: 11/04/2004)
404 STATUS REPORT Defendants' Monitoring Report, October 2004 by All Defendants. (Attachments: # 1 # 2)(Horne, Edwin) (Entered: 11/04/2004)
405 STATUS REPORT Defendants' 2004 Consent Decree Status/Summary Monitorying Report by All Defendants. (Attachments: # 1)(Horne, Edwin) (Entered: 11/04/2004)
406 MOTION to Set Aside Judgment Rule 60(b) Motion for Relief from Judgment by All Defendants. (Attachments: # 1 Appendix Tab A − part 1# 2 Appendix Tab A − part 2# 3 Appendix Tab B − part 1# 4 Appendix Tab B − part 2# 5 Appendix Tab C − Affidavit of Bruch# 6 Appendix Tab D − Affidavit of Bryant# 7 Appendix Tab E − Affidavit of Altenhoff# 8 Appendix Tab F − Affidavit of Bultman# 9 Text of Proposed

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 43 of 145

11/04/2004

Order Proposed Order for Rule 60(b) Motion)(Stowe, Matthew) (Entered: 11/04/2004)
***FILED IN ERROR. Document # 402, Motion to set aside judgment Rule 60 (b) Motion for Relief from Judgment. PLEASE IGNORE.***

11/17/2004
11/18/2004 11/19/2004 11/19/2004 11/24/2004 11/24/2004 11/29/2004 11/30/2004 12/06/2004 12/06/2004
12/07/2004 12/07/2004

PROPOSED ORDER WAS NOT ATTACHED TO THIS MOTION −− ATTORNEY REPLACED THIS MOTION WITH WITH DKT #406 (baf, ) (Entered: 11/04/2004)
407 RESPONSE to Motion re 400 MOTION for Attorney Fees Defendants' Response to Plaintiffs' Application for Attorneys' Fees filed by All Defendants. (Attachments: # 1 Text of Proposed Order Proposed Order (Defendants' Response to Plaintiffs' Application for Attorneys' Fees)(Stowe, Matthew) (Entered: 11/17/2004)
408 MOTION for Extension of Time to File Response/Reply to Defendants' Opposition to Plaintiffs' Motion for Interim Attorneys' Fees by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 11/18/2004)
409 RESPONSE in Opposition re 406 MOTION to Set Aside Judgment Rule 60(b) Motion for Relief from Judgment filed by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 11/19/2004)
410 MOTION Require Defendants to Propose Corrective Action Plans by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 11/19/2004)
411 First MOTION for Extension of Time to File Response/Reply to Plaintiffs' Opposition to Defendants' Rule 60(b) Motion for Relief from Judgment by All Defendants. (Attachments: # 1 Text of Proposed Order)(Stowe, Matthew) (Entered: 11/24/2004)
412 RESPONSE to Motion re 410 MOTION Require Defendants to Propose Corrective Action Plans filed by All Defendants. (Attachments: # 1 Text of Proposed Order)(Stowe, Matthew) (Entered: 11/24/2004)
413 Joint MOTION to Approve Class Notice of Plaintiffs' Attorneys' Request for Fee Award re 400 MOTION for Attorney Fees by All Plaintiffs. (Attachments: # 1 Exhibit # 2 Text of Proposed Order)(Swanson, Jane) (Entered: 11/29/2004)
414 REPLY to Response to Motion re 410 MOTION Require Defendants to Propose Corrective Action Plans filed by All Plaintiffs. (Swanson, Jane) (Entered: 11/30/2004)
415 REPLY to Response to Motion re 400 MOTION for Attorney Fees filed by All Plaintiffs. (Swanson, Jane) Modified on 12/7/2004 (ttm, ) ***Document docketed before leave has been granted*** (Entered: 12/06/2004)
416 MOTION for Leave to File Excess Pages in Reply Brief re: Plaintiffs' Interim Fee Motion by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) Modified on 12/7/2004 (ttm, ) ***Motion to be refiled with Reply attached as attachment*** (Entered: 12/06/2004)
417 MOTION for Leave to File Excess Pages by All Plaintiffs. (Attachments: # 1 proposed Reply Brief# 2 Text of Proposed Order)(Swanson, Jane) (Entered: 12/07/2004)
***FILED IN ERROR. Document # 415 and 416, Reply and Motion to exceed page limit. PLEASE IGNORE.***

12/09/2004 12/13/2004

***REPLACED BY MOTION #417 with Reply as an attachment*** (ttm, ) (Entered: 12/07/2004)
418 REPLY to Response to Motion re 411 First MOTION for Extension of Time to File Response/Reply to Plaintiffs' Opposition to Defendants' Rule 60(b) Motion for Relief from Judgment, 402 MOTION to Set Aside Judgment Rule 60(b) Motion for Relief from Judgment : Defendants' Reply to Plaintiffs' Opposition to Defendants' Rule 60(b)(6) Motion for Relief from Judgment filed by All Defendants. (Stowe, Matthew) (Entered: 12/09/2004)
419 ORDER granting 408 Motion for Extension of Time to File Response/Reply re 400 MOTION for Attorney Fees Replies due by 12/6/2004. Signed by Judge William W. Justice on 12/10/04, nunc pro tunc, 11/24/04 (mjc ) (Entered: 12/13/2004)

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 44 of 145

12/13/2004 12/13/2004
12/13/2004
12/13/2004
12/14/2004 12/15/2004 12/20/2004 12/22/2004 12/22/2004 12/22/2004 12/22/2004 12/27/2004
12/30/2004 12/30/2004
12/30/2004
01/03/2005 01/03/2005

420 ORDER directing defendants to file brief regarding issues to be considered re: Plaintiffs' Application for Interim Attorneys' Fees and Costs. Brief due by 12/22/2004. Signed by Judge William W. Justice on 12−10−04. (mjc ) (Entered: 12/14/2004)
421 ORDER granting 411 Motion for Extension of Time to File Reply to Plaintiffs' Opposition to Defendants' Rule 60(b) Motion for Relief from Judgment. Replies due by 12/9/2004. Signed by Judge William W. Justice on 12/10/04, nunc pro tunc, 11/24/04. (mjc ) (Entered: 12/14/2004)
422 ORDER granting 417 Motion for Leave to File Excess Pages. ORDERED that Plaintiffs' Reply Brief in Support of Plaintiffs' Application for Interim Attorneys' Fees and Costs shall not exceed 10 pages. Signed by Judge William W. Justice on 12/10/04. (mjc ) (Entered: 12/14/2004)
423 ORDER granting 413 Joint Motion re: Notice to the Class regarding application for attorneys' fees and costs. Exhibit 1 to the motion is APPROVED as appropriate language for the notice. Deadlines established per order. Signed by Judge William W. Justice on 12/10/04. (mjc ) (Entered: 12/14/2004)
Notified atty Mark Hanna via telephone he will no longer receive paper copies of documents from the court and needs to sign up for electronic filing. (mjc ) (Entered: 12/14/2004)
424 REPLY to Response to Motion re 400 MOTION for Attorney Fees filed by All Plaintiffs. (Swanson, Jane) (Entered: 12/15/2004)
425 First MOTION for Extension of Time to File Response/Reply as to 424 Reply to Response to Motion for Interim Attorneys' Fees and Costs by All Defendants. (Attachments: # 1 Text of Proposed Order)(Stowe, Matthew) (Entered: 12/20/2004)
426 MOTION for Discovery by All Plaintiffs. (Attachments: # 1)(Zinn, Susan) (Entered: 12/22/2004)
427 NOTICE by All Defendants Defendants' Notice to Court (Horne, Edwin) (Entered: 12/22/2004)
428 MOTION to Extend Term of Decree Paragraphs 284 and 295 by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 12/22/2004)
429 MOTION for Sanctions by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 12/22/2004)
430 ORDER granting 425 Motion for Extension of Time to File Response/Reply re 425 First MOTION for Extension of Time to File Response/Reply as to 424 Reply to Response to Motion for Interim Attorneys' Fees and Costs Replies due by 1/5/2005.. Signed by Judge William W. Justice on 12/27/04. (mpt, ) (Entered: 12/27/2004)
431 First MOTION for Extension of Time to File Response/Reply as to 428 MOTION to Extend Term of Decree Paragraphs 284 and 295 by All Defendants. (Attachments: # 1)(Horne, Edwin) (Entered: 12/30/2004)
432 First MOTION for Extension of Time to File Response/Reply as to 426 MOTION for Discovery by All Defendants. (Attachments: # 1 Text of Proposed Order Proposed Order Granting Defendants? Unopposed Motion for Extension of Time to File Response to Plaintiffs? Motion Concerning Discovery and Deadlines Related to Consent Decree)(Horne, Edwin) (Entered: 12/30/2004)
433 First MOTION for Extension of Time to File Response/Reply as to 429 MOTION for Sanctions by All Defendants. (Attachments: # 1 Text of Proposed Order Order Granting Defendants? Unopposed Motion for Extension of Time to File Response to Plaintiffs? Motion for Sanctions)(Horne, Edwin) (Entered: 12/30/2004)
434 ORDER granting 433 Motion for Extension of Time to File Response/Reply re 429 MOTION for Sanctions. Responses due by 1/21/2005. Signed by Judge William W. Justice on 1/3/05. (mjc ) (Entered: 01/04/2005)
435 ORDER granting 431 Motion for Extension of Time to File Response/Reply re 428 MOTION to Extend Term of Decree Paragraphs 284 and 295. Responses due by 1/21/2005. Signed by Judge William W. Justice on 1/3/05. (mjc ) (Entered:

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 45 of 145

01/03/2005 01/05/2005 01/07/2005
01/09/2005 01/12/2005 01/12/2005 01/12/2005 01/12/2005
01/13/2005 01/13/2005 01/21/2005 01/21/2005

01/04/2005)
436 ORDER granting 432 Motion for Extension of Time to File Response/Reply re 426 MOTION for Discovery. Responses due by 1/21/2005. Signed by Judge William W. Justice on 1/3/05. (mjc ) (Entered: 01/04/2005)
437 RESPONSE in Opposition re 400 MOTION for Attorney Fees Defendants' Supplemental Response to Plaintiffs' Application for Interim Attorney Fees filed by All Defendants. (Attachments: # 1 Affidavit Affidavit of Robin Kriza# 2 Text of Proposed Order)(Horne, Edwin) (Entered: 01/05/2005)
438 First MOTION for Leave to File Defendants' Motion to File Complete Attachment to Defendants' Supplemental Response to Plaintiffs' Application for Interim Attorneys' Fees by All Defendants. (Attachments: # 1 Text of Proposed Order Order Granting Defendant Motion for Leave to File Complete Attachment to Defendants' Supplemental Response to Plaintiffs' Application for Interim Attorneys' Fees# 2 Exhibit Defendants' Motion to File Complete Attachment to Defendants' Supplemental Response to Plaintiffs' Application for Interim Attorneys' Fees# 3 Affidavit Completed Summary Chart which included part of Robin Kriza's Affidavit, Attachment 1 to Defendants' Supplemental Response to Plaintiffs' Application for Interim Attorneys' Fees# 4 Text of Proposed Order Order Granting Motion to File Complete Attachment to Defendants' Supplemental Response to Plaintiffs' Application for Interim Attorneys' Fees)(Horne, Edwin) (Entered: 01/07/2005)
439 MOTION for Extension of Time to File Response/Reply as to 437 Response in Opposition to Motion, by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Zinn, Susan) (Entered: 01/09/2005)
440 ORDER granting 410 Motion to Require Defendants to Propose Corrective Action Plans. ORDERED that defendants submit proposed corrective action plans for each decree violation in the Court's 2000 Order on or before Friday, March 11, 2005 . Signed by Judge William W. Justice on 1/12/05. (mjc ) (Entered: 01/12/2005)
441 ORDER entered re: 400 Motion for Attorney Fees. Plaintiffs' motion will be held in abeyance pending the Court's decision of what relief, if any, to grant Plaintiffs for Defendants' violations of the Consent Decree . Signed by Judge William W. Justice on 1/12/05. (mjc ) (Entered: 01/12/2005)
442 ORDER granting 439 Motion for Extension of Time to File Response/Reply ORDERED that Plaintiffs file their Reply to Defendants' Supplemental Response to Plaintiffs' Application for Interim Attorneys' Fees on or before 3/1/2005. Signed by Judge William W. Justice on 1/12/05. (mjc ) (Entered: 01/13/2005)
445 ORDER granting 438 Defendants' Motion for Leave to File Complete Attachment to Defendants' Supplemental Response to Plaintiffs' Application for Interim Attorney Fees, granting 443 Motion to File Complete Attachment to Defendants' Supplemental Response to Plaintiffs' Application for Interim Attorney Fees. The "Summary of Line by Line Analysis of Ed Cloutman, Jane Swanson & Susan Zinn's Time Records" will be considered part of Robin Kriza's affidavit . Signed by Judge William W. Justice on 1/12/05. (mjc ) (Entered: 01/13/2005)
443 MOTION to Amend/Correct 437 Response in Opposition to Motion, by All Defendants. (Attachments: # 1 Exhibit Completed Summary Chart to the Affidavit of Robin Kriza# 2 Text of Proposed Order Order Granting Defendants? Motion to File Complete Attachment to Defendants? Supplemental Response to Plaintiffs? Application for Interim Attorney Fees)(Horne, Edwin) (Entered: 01/13/2005)
444 MOTION for Extension of Time to File Response/Reply by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Zinn, Susan) (Entered: 01/13/2005)
446 RESPONSE in Opposition re 426 MOTION for Discovery Defendants? Response to Plaintiffs? First Motion Concerning Discovery and Deadlines Related to Consent Decree filed by All Defendants. (Horne, Edwin) (Entered: 01/21/2005)
447 RESPONSE to Motion re 428 MOTION to Extend Term of Decree Paragraphs 284 and 295 Defendants' Response to Plaintiffs' Motion to Extend Terms of the Consent Decree Paragraphs 284 and 295 filed by All Defendants. (Attachments: # 1 Text of Proposed Order Order# 2 Affidavit Linda Bultman, Ph.D# 3 Affidavit Jimmy

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 46 of 145

01/21/2005
01/24/2005
01/25/2005 01/27/2005 01/28/2005 01/31/2005 02/02/2005
02/04/2005
02/07/2005 02/10/2005 02/10/2005 02/14/2005 02/22/2005 02/23/2005 02/23/2005 02/24/2005
02/28/2005

Blanton)(Stowe, Matthew) (Entered: 01/21/2005)
448 RESPONSE to Motion re 429 MOTION for Sanctions Defendants' Response to Plaintiffs' Motion for Sanctions filed by All Defendants. (Attachments: # 1 Text of Proposed Order Order# 2 Affidavit Margaret Bruch, M.S.S.W., L.C.S.W.)(Stowe, Matthew) (Entered: 01/21/2005)
450 ORDER granting 444 Motion for Extension of Time to Reply to Defendants' Supplemental Response to Plaintiffs' Application for Interim Attorneys' Fees (Unopposed). ORDERED that Plaintiffs file their reply within 30 days of the Court's order granting relief, if any, to Plaintiffs for Defendants' violations of the Consent Decree . Signed by Judge William W. Justice on 1/21/05. (mjc ) (Entered: 01/25/2005)
449 REPLY to Response to Motion re 426 MOTION for Discovery filed by All Plaintiffs. (Zinn, Susan) (Entered: 01/25/2005)
451 REPLY to Response to Motion re 428 MOTION to Extend Term of Decree Paragraphs 284 and 295 filed by All Plaintiffs. (Swanson, Jane) (Entered: 01/27/2005)
452 MOTION for Leave to File Excess Pages by All Plaintiffs. (Attachments: # 1 Text of Proposed Order # 2 Reply (motion for sanctions)# 3 Exhibit Exhibit A# 4 Exhibit Exhibit B)(Zinn, Susan) (Entered: 01/28/2005)
453 STATUS REPORT Defendants' January 2005 Monitoring Report by All Defendants. (Attachments: # 1 Exhibit 2nd part of Quarterly Report pages 30−59# 2 Exhibit 1st part of Quarterly Report pages 1−29)(Horne, Edwin) (Entered: 01/31/2005)
454 RESPONSE to Motion re 428 MOTION to Extend Term of Decree Paragraphs 284 and 295 Defendants' Response to Plaintiffs' Reply to Defendants' Response to Plaintiffs' Motion to Extend Terms of the Consent Decree Paragraphs 284 and 295 filed by All Defendants. (Stowe, Matthew) (Entered: 02/02/2005)
455 RESPONSE to Motion re 429 MOTION for Sanctions Defendants' Response to Plaintiffs' Reply to Defendants' Response to Plaintiffs' Motion for Sanctions for Willful Violations of Decree Paragraphs 17, 35, 171, and 223 filed by All Defendants. (Stowe, Matthew) (Entered: 02/04/2005)
456 ORDER granting 452 Motion for Leave to File Excess Pages . Signed by Judge William W. Justice on 2/1/05. (mjc ) (Entered: 02/08/2005)
457 ORDER granting 426 Motion for Discovery. ORDERED that the parties strictly follow the outlined discovery plan. Signed by Judge William W. Justice on 2/9/05. (mjc ) (Entered: 02/11/2005)
458 ORDER setting a hearing for 6/6/05 at 9 a.m. before U.S. District Judge William Wayne Justice in Austin on 406 Motion to Set Aside Judgment . Signed by Judge William W. Justice on 2/9/05. (mjc ) (Entered: 02/11/2005)
459 REPLY to Response to Motion re 452 MOTION for Leave to File Excess Pages filed by All Plaintiffs. (Attachments: # 1 # 2 Exhibit Exhibit B)(Zinn, Susan) (Entered: 02/14/2005)
460 NOTICE of Attorney Appearance by Linda Ann Halpern on behalf of All Defendants (Halpern, Linda) (Entered: 02/22/2005)
461 MOTION Clarification concerning June 6, 2005 Hearing re 458 Order on Motion to Set Aside Judgment by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Zinn, Susan) (Entered: 02/23/2005)
462 NOTICE of Disclosure by All Defendants (Halpern, Linda) (Entered: 02/23/2005)
463 RESPONSE in Opposition re 461 MOTION Clarification concerning June 6, 2005 Hearing re 458 Order on Motion to Set Aside Judgment Defendants' Response to Plaintiffs' Motion for Clarification Concerning Hearing Set for June 6, 2005 filed by All Defendants. (Horne, Edwin) (Entered: 02/24/2005)
464 NOTICE by All Plaintiffs re 423 Order on Motion for Miscellaneous Relief, Plaintiffs' Certificate Concerning Class Members' Comments about Plaintiffs' Application for Interim Fees (Zinn, Susan) (Entered: 02/28/2005)

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 47 of 145

03/02/2005 03/07/2005
03/09/2005
03/09/2005 03/11/2005 03/14/2005 03/29/2005 04/08/2005 04/08/2005 04/11/2005
04/11/2005 04/12/2005
04/12/2005 04/13/2005 04/13/2005 04/13/2005

465 NOTICE of Disclosure by All Plaintiffs (Swanson, Jane) (Entered: 03/02/2005)
466 First MOTION for Leave to File Defendants' Unopposed Motion to Permit Filing Paper Exhibits to Defendants' Corrective Action Plan by All Defendants. (Attachments: # 1 Text of Proposed Order Order Granting Defendants' Unopposed Motion to Permit Filing Paper Exhibits to Defendants' Corrective Action Plan)(Horne, Edwin) (Entered: 03/07/2005)
467 ORDER granting 461 Motion for Clarification Concerning Hearing Set to Begin on June 6,2005. The Court clarifies as follows: defendants shall present evidence first; each side (plaintiffs and defendants) has a MAXIMUM of 20 hours for presentation; and the Court does not need further filings to assist in preparing for the hearing, but will consider such filings . Signed by Judge William W. Justice on 3/9/05. (mjc ) (Entered: 03/09/2005)
468 ORDER granting 466 Motion for Leave to File Paper Exhibits to Defendants' Correction Action Plan . Signed by Judge William W. Justice on 3/9/05. (mjc ) (Entered: 03/09/2005)
469 STATUS REPORT Defendants' Corrective Action Plan by All Defendants. (Attachments: # 1 # 2)(Halpern, Linda) (Entered: 03/11/2005)
Received two boxes of exhibits to Defendants' Corrective Action Plan 469 per order 468 . Not scanned. (mjc) (Entered: 03/15/2005)
470 NOTICE of Disclosure by All Plaintiffs Plaintiffs' Certificate of First Supplemental Disclosure (Zinn, Susan) (Entered: 03/29/2005)
471 First MOTION to Substitute Attorney and Designate Attorney in Charge by All Defendants. (Attachments: # 1 Text of Proposed Order Order on Defendants' Motion to Substitute Counsel and Designate Attorney in Charge)(Halpern, Linda) (Entered: 04/08/2005)
472 First MOTION in Limine by All Defendants. (Attachments: # 1 Text of Proposed Order Order on Motion in Limine)(Halpern, Linda) (Entered: 04/08/2005)
473 NOTICE by All Plaintiffs Plaintiffs' Proposed Corrective Action Plans (Attachments: # 1 Plaintiffs' Proposed Corrective Action Plan: Outreach# 2 Plaintiffs' Proposed Corrective Action Plan: Check Ups# 3 Plaintiffs' Proposed Corrective Action Plan: Check Up Reports# 4 Plaintiffs' Proposed Corrective Action Plan: Managed Care# 5 Plaintiffs' Proposed Corrective Action Plan: Adequate Health Care Provider Supply# 6 Plaintiffs' Proposed Corrective Action Plan: Health Care Provider Training# 7 Plaintiffs' Proposed Corrective Action Plan: Transportation# 8 Plaintiffs' Proposed Corrective Action Plan: Toll Free Numbers# 9 Plaintiffs' Proposed Corrective Action Plan: Case Management# 10 Plaintiffs' Proposed Corrective Action Plan: Outcomes Measures)(Zinn, Susan) (Entered: 04/11/2005)
474 NOTICE of Disclosure by All Defendants First Amended (Halpern, Linda) (Entered: 04/11/2005)
475 First MOTION Leave to Conduct Additional Discovery Additional Ten Oral Depositions by All Defendants. (Attachments: # 1 Text of Proposed Order Order Permitting Additional Depositions# 2 Text of Proposed Order Alternative Order# 3 Exhibit Exhibit A# 4 Exhibit Exhibit B# 5 Exhibit Exhibit C# 6 Exhibit Exhibit D)(Halpern, Linda) (Entered: 04/12/2005)
476 First MOTION for Protective Order by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Proposed Protective Order: Depositions# 2 Exhibit Ex. A: Letter to Defendants' Counsel)(Zinn, Susan) (Entered: 04/12/2005)
477 First MOTION Setting of Status Conference by All Defendants. (Attachments: # 1 Text of Proposed Order Granting Motion for Status Conference)(Halpern, Linda) (Entered: 04/13/2005)
478 RESPONSE to Motion re 477 First MOTION Setting of Status Conference filed by All Plaintiffs. (Zinn, Susan) (Entered: 04/13/2005)
479 ORDER Setting status conference for 9 a.m. 4−19−05 in the Chambers of U.S. District Judge William Wayne Justice, third floor of the Homer Thornberry Judicial Building,

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 48 of 145

04/14/2005 04/15/2005
04/15/2005 04/15/2005 04/15/2005 04/17/2005 04/17/2005
04/18/2005 04/18/2005 04/18/2005 04/19/2005 04/19/2005
04/20/2005
04/20/2005 04/20/2005

903 San Jacinto Blvd., Austin, TX 78701. Signed by Judge William W. Justice on 4−13−05. (mjc ) (Entered: 04/13/2005)
480 ORDER granting 471 Motion to Substitute Attorney. Added attorney Linda Ann Halpern for All Defendants. Attorney Edwin N Horne terminated . Signed by Judge William W. Justice on 4/14/05. (mjc ) (Entered: 04/14/2005)
481 MOTION for Discovery To Compel Plaintiffs to respond to Defendants' Interrogatories by All Defendants. (Attachments: # 1 Exhibit A, Pltfs' 6th Set of Interrogatories# 2 Exhibit B, Pltfs' Supplemental Interrogs to Ds# 3 Exhibit C, Defs' First Interrogs to Pltfs# 4 Exhibit D, 4−13−05 Zinn letter refusing to respond to more than five interrogatories# 5 Exhibit E, Halpern letter to Zinn citing law re subparts# 6 Text of Proposed Order Proposed Order)(Halpern, Linda) (Entered: 04/15/2005)
482 NOTICE of Attorney Appearance by Richard E Salisbury on behalf of All Defendants (Salisbury, Richard) (Entered: 04/15/2005)
483 Second MOTION for Protective Order Concerning Private Information about Plaintiffs and Class Members by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Protective Order Concerning Private Information about Plaintiffs and Class Members)(Zinn, Susan) (Entered: 04/15/2005)
484 NOTICE by All Defendants that Edwin Horne remains as a co−counsel for all Defendants (Halpern, Linda) (Entered: 04/15/2005)
485 RESPONSE to Motion re 472 First MOTION in Limine Plaintiffs' Response to Defendants' Motion in Limine to Exclude Evidence Regarding Plaintiffs' Supplemental Dental Claims filed by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Order Denying Defendants' Motion in Limine)(Zinn, Susan) (Entered: 04/17/2005)
486 RESPONSE to Motion re 475 First MOTION Leave to Conduct Additional Discovery Additional Ten Oral Depositions Plaintiffs' Response to Defendants' Motion for Ten Additional Oral Depositions filed by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Order Denying Defendants' Motion for Ten Additional Oral Depositions)(Zinn, Susan) (Entered: 04/17/2005)
487 MOTION HIPAA Qualified Protective Order by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 04/18/2005)
488 RESPONSE to Motion re 481 MOTION for Discovery To Compel Plaintiffs to respond to Defendants' Interrogatories filed by All Plaintiffs. (Attachments: # 1 Exhibit Exhibit B)(Zinn, Susan) (Entered: 04/18/2005)
489 MOTION Plaintiffs' Request for Topics to be DIscussed During April 19, 2005 Status Conference by All Plaintiffs. (Zinn, Susan) (Entered: 04/18/2005)
490 ORDER denying 472 Defendants' First Motion in Limine . Signed by Judge William W. Justice on 4/19/05. (mjc) (Entered: 04/19/2005)
498 Minute Entry for proceedings held before Judge William W. Justice in Austin : In Chambers Status Conference held on 4/19/2005. Atty for pltfs: Susan Zinn; Attys for defts: Linda Halpern, Richard E. Salisbury, Robert O'Keefe, Matthew F. Stowe, Lee Dickinson & Linda Wiegman (DHS) (Court Reporter Raquel Kocher.)(rec'd in Tyler 4/29/05) (mjc) (Entered: 04/29/2005)
491 MOTION for Protective Order Joint Motion for Protective Order: Confidential Information Concerning Named Plaintiffs and Class Members and Health Information Protected by the Health Insurance Portability and Accointability Act of 1996 by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Protective Order (Private Information and HIPPA Protected Information))(Zinn, Susan) (Entered: 04/20/2005)
492 STIPULATION Stipulation (by all parties) Concerning June 6, 2005 Hearing on Defendants' Rule 60(b) Motion by All Plaintiffs. (Zinn, Susan) (Entered: 04/20/2005)
493 PROTECTIVE ORDER: Confidential Information Concerning Named Plaintiffs and Class Members and Health Information Protected by the Health Insurance Portability and Accountability Act of 1996. Joint motion for protective order is GRANTED. This order applies to information relating to the 6/6/05 hearing, including preparation for it and activities that follow relating to the hearing. Defendants are authorized to release

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 49 of 145

04/25/2005 04/26/2005 04/26/2005 04/29/2005 05/02/2005 05/02/2005 05/03/2005 05/03/2005 05/06/2005 05/09/2005 05/11/2005 05/18/2005
05/19/2005
05/20/2005
05/23/2005 05/23/2005 05/23/2005

to plaintiffs health information protected by the HIPPA in accordance with the court's order. Plaintiffs motions 483 and 487 are mooted by this order. Signed by Judge William W. Justice on 4/20/05. (mjc, ) (Entered: 04/20/2005)
494 NOTICE by All Plaintiffs of Service of Tentative Witness/Exhibit List and 2nd Supplemental Disclosures (Swanson, Jane) (Entered: 04/25/2005)
495 STIPULATION Stipulations Concerning Use of Modified Depositions on Written Questions at June 6, 2005 Hearing on Defendants' Rule 60(b) Motion by All Plaintiffs. (Zinn, Susan) (Entered: 04/26/2005)
496 First MOTION Entry of Rule 54(b) Findings by All Defendants. (Attachments: # 1 Text of Proposed Order Order Granting Defendants' Motion for Entry of Rule 54(b) Findings)(Halpern, Linda) (Entered: 04/26/2005)
497 MOTION for Extension of Time to Complete Discovery by All Plaintiffs. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Text of Proposed Order)(Swanson, Jane) (Entered: 04/29/2005)
499 RESPONSE in Opposition re 496 First MOTION Entry of Rule 54(b) Findings Plaintiffs' Response to Defendants' First Motion for Entry of Rule 54(b) Findings filed by All Plaintiffs. (Zinn, Susan) (Entered: 05/02/2005)
500 REPLY to Response to Motion re 496 First MOTION Entry of Rule 54(b) Findings filed by All Defendants. (Halpern, Linda) (Entered: 05/02/2005)
501 STATUS REPORT April 2005 by All Defendants. (Attachments: # 1 Exhibit Quarterly Montitoring Report Part 1# 2 Exhibit Quarterly Monitoring Report Part 2)(Halpern, Linda) (Entered: 05/03/2005)
502 STIPULATION All Parties' Stipulation Concerning Use of Deposition Transcripts During June, 2005 Hearing by All Plaintiffs. (Zinn, Susan) (Entered: 05/03/2005)
503 RESPONSE in Opposition re 496 First MOTION Entry of Rule 54(b) Findings Plaintiffs' Sur−Reply Concerning Defendants' Motion for Entry of Rule 54(b) Findings filed by All Plaintiffs. (Zinn, Susan) (Entered: 05/06/2005)
504 ORDER denying 496 Motion for Entry of Rule 54(b) Findings . Signed by Judge William W. Justice on 5−6−05. (mjc) (Entered: 05/09/2005)
505 First MOTION to Dismiss First Supplemental Complaint by All Defendants. (Attachments: # 1 Text of Proposed Order Order on Defendants' Motion to Dismiss First Supplemental Complaint)(Halpern, Linda) (Entered: 05/11/2005)
506 ORDER granting 497 Motion for Extension of Time to Complete Discovery as unopposed. ORDERED that Plaintiffs respond to Defendants' Requests for Production of Documents and to the first 50 sub−parts of Defendants' interrogatories on or before 5−18−05. Signed by Judge William W. Justice on 5−18−05, nunc pro tunc 5−2−05. (mjc ) (Entered: 05/18/2005)
507 First MOTION for Extension of Time to File Response/Reply Plaintiffs' Motion for Extension of Time to Respond to Defendants' Motion to Dismiss Plaintiffs' First Supplemental Complaint (Unopposed) by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Zinn, Susan) (Entered: 05/19/2005)
508 ORDER granting 507 Motion for Extension of Time to File Response/Reply re 505 First MOTION to Dismiss First Supplemental Complaint Responses due by 7/22/2005. Signed by Judge William W. Justice on 5−19−05. (mjc) (Entered: 05/20/2005)
509 NOTICE by All Plaintiffs Notice of Appearance of Counsel of John R. Heard (Zinn, Susan) (Entered: 05/23/2005)
510 STIPULATION All Parties' Modified Stipulation Concerning June 6, 2005 Hearing on Defendants' Rule 60(b) Motion by All Plaintiffs. (Zinn, Susan) (Entered: 05/23/2005)
511 First MOTION for Extension of Time to Complete Discovery Plaintiffs' Motion for Extension of Time to Respond to Defendants' Cross Questions by All Plaintiffs.

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 50 of 145

05/24/2005 05/24/2005 05/26/2005 05/26/2005
05/26/2005
05/29/2005
06/02/2005 06/03/2005 06/03/2005 06/06/2005 06/06/2005 06/06/2005 06/06/2005
06/06/2005 06/06/2005 06/06/2005 06/06/2005

(Attachments: # 1 Text of Proposed Order)(Zinn, Susan) (Entered: 05/23/2005)
512 NOTICE of Disclosure by All Defendants Supplemental (Halpern, Linda) (Entered: 05/24/2005)
513 NOTICE by All Defendants Withdrawal of Rule 60(b) Motion (Halpern, Linda) (Entered: 05/24/2005)
514 NOTICE by All Plaintiffs re 513 Notice (Other) Plaintiffs' Response to Defendants' Notification of Withdrawal of their Rule 60(b) Motion for Relief from Judgment (Zinn, Susan) (Entered: 05/26/2005)
515 ORDER that all discovery for the 6/6/2005 hearing continue as previously scheduled or agreed prior to Defendants' Notification of Withdrawal of Rule 60(b) Motion. It it Ordered that Defendants make Linda Altenhoff, Margaret Bruch, John Hellerstedt and Billy Millwee available for deposition on or before 6/3/2005. Failure to make these witnesses available will result in sanctions against Defendants. It is further ORDERED that Plaintiffs and Defendants respond to all cross questions related to the modified depositions on written questions on or before 5/31/2005. . Signed by Judge William W. Justice on 5/26/2005. (mpt, ) (Entered: 05/26/2005)
516 ORDER that the Court will Sua Sponte hold an Evidentiary Hearing on June 6, 2005, to determine whether to excercise its equitable powers to modify the consent decree. Each side will have a total of 20 hours to present evidence.. Signed by Judge William W. Justice on 5/26/2005. (mpt, ) (Entered: 05/26/2005)
517 First MOTION Reinstate Rule 60(b) Motion (Unopposed) re 401 MOTION to Set Aside Judgment Corrected Rule 60(b) Motion by All Defendants. (Attachments: # 1 Text of Proposed Order Proposed Order Granting Defendants' Unopposed Motion to Reinstate Rule 60(b) Motion)(Halpern, Linda) (Entered: 05/29/2005)
518 NOTICE by All Plaintiffs Plaintiffs' Notice to the Court Concerning Status of Depositions (Zinn, Susan) (Entered: 06/02/2005)
519 ORDER granting 517 Defendants' Unopposed Motion to Reinstate Rule 60(b) Motion for Relief from Judgment . Signed by Judge William W. Justice on 5−31−05. (mjc ) (Entered: 06/03/2005)
520 ORDER re 513 Notice (Other) filed by All Defendants. Defendants' Notification of Withdrawal of Rule 60(b) Motion for Relief from Judgment is DENIED AS MOOT . Signed by Judge William W. Justice on 5−31−05. (mjc ) (Entered: 06/03/2005)
521 NOTICE by All Defendants Defendants' Objections to Plaintiffs' Exhibits (Halpern, Linda) (Entered: 06/06/2005)
522 NOTICE by All Defendants Defendants' Objections to the Admission of modified Depositions on Written Questions of Plaintiffs' Witnesses (Halpern, Linda) (Entered: 06/06/2005)
523 NOTICE by All Defendants Defendants' Objections to the Admissions of Oral Depositions of Patti Cryer and Karen Clemmer (Halpern, Linda) (Entered: 06/06/2005)
528 Minute Entry for proceedings held before Judge William W. Justice in Austin: Evidentiary Hearing held on 6/6/2005. Attys for pltfs: Susan Zinn, Jane Swanson. Attys for defts: Linda Halpern, Richard Salisbury, Jeff Rose, Bill Davis, James Eccles, Matthew Stowe (Court Reporter Julie Goodwin.)(rec'd in Tyler 6−30−05) (mjc) (Entered: 06/30/2005)
529 Exhibit/Witness List from Evidentiary Hearing 6/6/05−6/15/05 before Judge William Wayne Justice in Austin. (mjc ) (Entered: 06/30/2005)
554 Witness/Exhibit List by All Defendants. (rec'd 7/26/05)(mjc ) (Entered: 07/27/2005)
555 Final Witness List for Hearing on Defendants' Rule 60(b) Motion by All Plaintiffs. (rec'd 7/26/05) (mjc) (Entered: 07/27/2005)
556 Exhibit List for Hearing on Rule 60(b) Motion by All Plaintiffs. (rec'd on 7/26/05)(mjc ) (Entered: 07/27/2005)

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 51 of 145

06/07/2005 06/08/2005 06/09/2005 06/10/2005 06/13/2005 06/14/2005 06/15/2005 06/24/2005 06/27/2005 06/27/2005 06/28/2005 07/03/2005 07/05/2005

530 Minute Entry for proceedings held before Judge William W. Justice in Austin: Evidentiary Hearing held on 6/7/2005. Attys for pltfs: Susan Zinn, Jane Swanson. Attys for defts: Linda Halpern, Richard Salisbury, Jeff Rose, Bill Davis, James Eccles, Matthew Stowe. (Court Reporter Julie Goodwin.)(rec'd in Tyler 6−30−05) (mjc ) (Entered: 06/30/2005)
531 Minute Entry for proceedings held before Judge William W. Justice in Austin: Evidentiary Hearing held on 6/8/2005. Attys for pltfs: Susan Zinn, Jane Swanson. Attys for defts: Linda Halpern, Richard Salisbury, Jeff Rose, Bill Davis, James Eccles, Matthew Stowe (Court Reporter Julie Goodwin.)(rec'd in Tyler 6−30−05) (mjc ) (Entered: 06/30/2005)
532 Minute Entry for proceedings held before Judge William W. Justice in Austin: Evidentiary Hearing held on 6/9/2005. Attys for pltfs: Susan Zinn, Jane Swanson. Attys for defts Linda Halpern, Richard Salisbury, Jeff Rose, Matthew Stowe, James Eccles, Bill Davis (Court Reporter Lily Reznik.)(rec'd in Tyler 6−30−05) (mjc) (Entered: 06/30/2005)
533 Minute Entry for proceedings held before Judge William W. Justice in Austin: Evidentiary Hearing held on 6/10/2005. Attys for pltfs: Susan Zinn, Jane Swanson, John Heard. Attys for defts: Linda Halpern, Richard Salisbury, Jeff Rose, Matthew Stowe, James Eccles, Bill Davis (Court Reporter Julie Goodwin.)(rec'd in Tyler 6−30−05) (mjc ) (Entered: 06/30/2005)
534 Minute Entry for proceedings held before Judge William W. Justice in Austin: Evidentiary Hearing held on 6/13/2005. Attys for pltfs: Susan Zinn, Jane Swanson. Attys for defts: Linda Halpern, Richard Salisbury, Jeff Rose, Matthew Stowe, Jeff Eccles, Bill Davis (Court Reporter Lily Reznik.)(rec'd in Tyler 6−30−05) (mjc ) (Entered: 07/01/2005)
535 Minute Entry for proceedings held before Judge William W. Justice in Austin: Evidentiary Hearing held on 6/14/2005. Attys for pltfs: Susan Zinn, Jane Swanson. Attys for defts: Linda Halpern, Richard Salisbury, Jeff Rose, Matthew Stowe, Jeff Eccles, Bill Davis (Court Reporter Lily Reznik.)(rec'd in Tyler 6−30−05) (mjc) (Entered: 07/01/2005)
536 Minute Entry for proceedings held before Judge William W. Justice in Austin: Evidentiary Hearing held on 6/15/2005. Attys for pltfs: Susan Zinn, Jane Swanson. Attys for defts: Linda Halpern, Richard Salisbury, Jeff Rose, Matthew Stowe, Jeff Eccles, Bill Davis. Hearing concluded; attys to file briefs by 5 p.m. 7−6−05 (Court Reporter Lily Reznik.)(rec'd in Tyler 6−30−05) (mjc ) (Entered: 07/01/2005)
524 First MOTION for Extension of Time to File Response/Reply as to 521 Notice (Other), 522 Notice (Other), 523 Notice (Other) Plaintiffs' Motion for Extension of Time to File Responses: Defendants' Objections to Plaintiffs' Exhibits and Plaintiffs' Depositions by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Zinn, Susan) (Entered: 06/24/2005)
525 RESPONSE in Opposition re 524 First MOTION for Extension of Time to File Response/Reply as to 521 Notice (Other), 522 Notice (Other), 523 Notice (Other) Plaintiffs' Motion for Extension of Time to File Responses: Defendants' Objections to Plaintiffs' Exhibits filed by All Defendants. (Attachments: # 1 Text of Proposed Order)(Salisbury, Richard) (Entered: 06/27/2005)
526 ORDER granting 524 Motion for Extension of Time to File Response/Reply. Plaintiffs Responses to Defendants' Objections to Exhibits and to Oral and Written Depositions are due by 7/12/2005 . Signed by Judge William W. Justice on 6/27/2005. (rvw, ) (Entered: 06/27/2005)
527 NOTICE by All Plaintiffs Revised Proposed Corrective Action Plans (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10 # 11)(Swanson, Jane) (Entered: 06/28/2005)
537 MOTION to Amend/Correct Plaintiffs' Motion to Supplement Exhibits (Unopposed) by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Zinn, Susan) (Entered: 07/03/2005)
538 NOTICE by All Defendants re 537 MOTION to Amend/Correct Plaintiffs' Motion to Supplement Exhibits (Unopposed) Defendants' Evidentiary Objections to Plaintiffs'

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 52 of 145

07/06/2005
07/06/2005 07/06/2005
07/11/2005
07/11/2005 07/11/2005 07/11/2005 07/11/2005 07/11/2005 07/11/2005 07/15/2005 07/18/2005 07/21/2005 07/25/2005 07/25/2005
07/25/2005

Supplemental Exhibits (Salisbury, Richard) (Entered: 07/05/2005)
539 RESPONSE in Opposition re 406 MOTION to Set Aside Judgment Rule 60(b) Motion for Relief from Judgment Plaintiffs' Post_hearing Brief in Opposition to Defendants' Motion for Rule 60(b) Relief from Judgment filed by All Plaintiffs. (Zinn, Susan) (Entered: 07/06/2005)
540 TRIAL BRIEF Defs' Proposed Findings of Fact and Conclusions of Law by All Defendants. (Halpern, Linda) (Entered: 07/06/2005)
541 NOTICE by All Defendants re 527 Notice (Other) Defs' Response to Plaintiffs' Revised Proposed Corrective Action Plans (Attachments: # 1 Affidavit Affidavit of Margaret Bruch# 2 Affidavit Affidavit of Linda Bultman (with exhibits)# 3 Affidavit Affidavit Lisa Carruth# 4 Affidavit Affidaivt of Diane Davis# 5 Affidavit Affidavit of Kari Dingman (with exhibit)# 6 Affidavit Affidavit of Billy Millwee# 7 Affidavit Affidavit of Jennifer Stansbury# 8 Affidavit Affidavit of Don Valdes)(Halpern, Linda) (Entered: 07/06/2005)
542 RESPONSE in Opposition re 537 MOTION to Amend/Correct Plaintiffs' Motion to Supplement Exhibits (Unopposed) Plaintiffs' Response to DEfendants' Objections to the Admission of Modified Depositoins on Written Questions of Plaintiffs' Witnesses filed by All Plaintiffs. (Zinn, Susan) (Entered: 07/11/2005)
543 NOTICE by All Plaintiffs Response to Defendants' Objections to Oral Depositions (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 07/11/2005)
544 NOTICE by All Plaintiffs Response to Defendants' Objections to Plaintiffs' Exhibits (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 07/11/2005)
545 TRANSCRIPT of Bench Trial held on 6−9−05 before Judge William Wayne Justice in Austin. Court Reporter: Lily Iva Reznik. (198 pages) (mjc ) (pad, ). (Entered: 07/12/2005)
546 TRANSCRIPT of Bench Trial held on 6−13−05 before Judge William Wayne Justice in Austin. Court Reporter: Lily Iva Reznik. (236 pages) (mjc ) (pad, ). (Entered: 07/12/2005)
547 TRANSCRIPT of Bench Trial held on 6−14−05 before Judge William Wayne Justice in Austin. Court Reporter: Lily Iva Reznik. (235 pages) (mjc ) (pad, ). (Entered: 07/12/2005)
548 TRANSCRIPT of Bench Trial held on 6−15−05 before Judge William Wayne Justice in Austin. Court Reporter: Lily Iva Reznik.(114 pages) (mjc ) (pad, ). (Entered: 07/12/2005)
549 NOTICE by All Plaintiffs Response to Defendants' Objections to Supplemental Exhibits (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 07/15/2005)
550 RESPONSE in Opposition re 505 First MOTION to Dismiss First Supplemental Complaint Plaintiffs' Response to Defendants' Motion to Dismiss Plaintiffs' First Supplemental Complaint filed by All Plaintiffs. (Zinn, Susan) (Entered: 07/18/2005)
Received nine boxes of exhibits from Judge Justice's chambers re: Hearing on Defendants' Rule 60(b) Motion (mjc) (Entered: 07/28/2005)
551 STATUS REPORT July 2005 by All Defendants. (Attachments: # 1)(Halpern, Linda) (Entered: 07/25/2005)
552 REPLY to Response to Motion re 505 First MOTION to Dismiss First Supplemental Complaint Reply to Response to Defendants Motion to Dismiss Plaintiffs First Supplemental Complaint filed by All Defendants. (Stowe, Matthew) (Entered: 07/25/2005)
553 MOTION for Leave to File Amended Answer to Plaintiffs' 1st Supplemental Complaint by All Defendants. (Attachments: # 1 Text of Proposed Order Proposed Order Granting Defendants' Motion for Leave to File Amended Answer to Plaintiffs' 1st Supplemental Complaint# 2 Defendants' Proposed Amended Answer to Plaintiffs' 1st Supplemental Complaint)(Salisbury, Richard) (Entered: 07/25/2005)

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 53 of 145

07/25/2005 07/25/2005 07/25/2005 07/25/2005 07/29/2005
07/29/2005 08/03/2005 08/08/2005
08/10/2005 08/12/2005 08/22/2005 08/22/2005 08/23/2005

557 TRANSCRIPT of Proceedings held on 6−6−05 before Judge William Wayne Justice in Austin. Court Reporter: Julie Goodwin. (179 pages) (mjc ) Modified on 7/27/2005 (mjc). (pad, ). (Entered: 07/27/2005)
558 TRANSCRIPT of Proceedings held on 6−7−05 before Judge William Wayne Justice. Court Reporter: Julie A. Goodwin. (247 pages) (mjc ) (pad, ). (Entered: 07/27/2005)
559 TRANSCRIPT of Proceedings held on 6−8−05 before Judge William Wayne Justice. Court Reporter: Juilie A. Goodwin. (235 pages) (mjc ) (pad, ). (Entered: 07/27/2005)
560 TRANSCRIPT of Proceedings held on 6−10−05 before Judge William Wayne Justice. Court Reporter: Julie A. Goodwin. (233 pages) (mjc ) (pad, ). (Entered: 07/27/2005)
561 RESPONSE in Opposition re 553 MOTION for Leave to File Amended Answer to Plaintiffs' 1st Supplemental Complaint Plaintiffs' Response to Defendants' Motion for Leave to File Amended Answer to Plaintiffs' First Supplemental Complaint filed by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Proposed Order Denying Defendants' Motion to Amend Complaint)(Zinn, Susan) (Entered: 07/29/2005)
562 NOTICE by All Plaintiffs re 505 First MOTION to Dismiss First Supplemental Complaint Plaintiffs' Sur−Reply: Defendants' Motion to Dismiss First Supplemental Complaint (Zinn, Susan) (Entered: 07/29/2005)
563 REPLY to Response to Motion re 553 MOTION for Leave to File Amended Answer to Plaintiffs' 1st Supplemental Complaint filed by All Defendants. (Stowe, Matthew) (Entered: 08/03/2005)
564 ORDER granting 537 Plaintiffs' Motion to Supplement Exhibits (Unopposed). The listed exhibits are admitted into evidence as if presented during the June 2005 hearing and may be submitted in paper form to the clerk, as long as a copy is forwarded to the court and defendants' counsel. Signed by Judge William W. Justice on 8/8/2005. (mjc ) (Entered: 08/08/2005)
565 ORDER denying 505 Motion to Dismiss. Signed by Judge William W. Justice on 08/09/05. cc:attys 8−10−05 (mll, ) (Entered: 08/10/2005)
Received Plaintiffs' Supplemental Exhibits 1−32 per order 564 . Placed with other exhibits from the June 2005 hearing. (mjc ) (Entered: 08/12/2005)
566 ORDER denying 406 Defendants' Rule 60(b) Motion for Relief From Judgment . Signed by Judge William W. Justice on 8/19/2005. (mjc ) (Entered: 08/22/2005)
567 ***FILED ELECTRONICALLY IN ERROR, TO BE SUBMITTED IN PAPER*** NOTICE by All Defendants re 566 Order on Motion to Set Aside Judgment Notice of Appeal (Halpern, Linda) Modified on 8/23/2005 (ttm, ). (Entered: 08/22/2005)
***FILED IN ERROR. Document # 567, Notice. PLEASE IGNORE. THIS DOCUMENT MUST BE FILED IN PAPER***

08/24/2005 08/24/2005 08/29/2005
09/22/2005 10/14/2005

(ttm, ) (Entered: 08/23/2005)
568 NOTICE OF APPEAL as to 566 Order on Motion to Set Aside Judgment by All Defendants. Filing fee $ 255.00 paid, receipt number 6−1−2094. (mjc) (Entered: 08/24/2005)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 568 Notice of Appeal (mjc) (Entered: 08/24/2005)
TRANSCRIPT REQUEST Form returned by All Defendants re 568 Notice of Appeal. Transcript is already on file in Clerk's office. Transcript was purchased in June 2005 to prepare post−hearing proposed findings/conclusions per AAG L. Halpern. (mjc ) (Entered: 08/30/2005)
569 MOTION to Dismiss by Mary. Fisher. Responses due by 10/12/2005 (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 09/22/2005)
570 ORDER granting 569 Motion to Dismiss Named Plaintiff Tyrone Edwards and his Next Friend Mary Fisher. Signed by Judge William W. Justice on 10/12/2005. (mjc) (Entered: 10/14/2005)

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 54 of 145

10/31/2005 11/17/2005 12/21/2005 12/27/2005
01/12/2006 01/30/2006
02/01/2006 02/06/2006
02/17/2006
03/09/2006
03/15/2006 03/16/2006 03/24/2006 03/24/2006 04/17/2006 04/18/2006 04/18/2006

571 NOTICE by All Defendants of Filing Monitoring Report, October 2005 (Attachments: # 1 Exhibit Monitoring Report October 2005 Part 1# 2 Exhibit Monitoring Report October 2005 Part 2)(Halpern, Linda) (Entered: 10/31/2005)
Appeal Remark re 568 Notice of Appeal: Certified electronic record to the USCA (mjc ) (Entered: 11/18/2005)
572 USCA Case Number 05−41798 for 568 Notice of Appeal filed by All Defendants. (rvw, ) (Entered: 12/22/2005)
TRANSCRIPT REQUEST Forms returned by All Defendants re 568 Notice of Appeal − box checked: transcript is already on file in the Clerk's office. Transcripts were purchased from Lily Reznik and Julie Goodwin in June 2005 to prepare post−hearing proposed findings/conclusions (mjc) (Entered: 12/29/2005)
573 STATUS REPORT Plaintiffs' Advisory to the Court by All Plaintiffs. (Zinn, Susan) (Entered: 01/12/2006)
574 NOTICE by All Defendants of Filing Monitoring Report − January, 2006 (Attachments: # 1 Exhibit Jan 06 Quarterly Report part 1# 2 Exhibit Jan 06 Quarterly Report part 2# 3 Exhibit Jan 06 Quarterly Report part 3)(Halpern, Linda) (Entered: 01/30/2006)
Appeal Remark re 568 Notice of Appeal: Received electronic request from AAG Matt Stowe for a copy of the record on appeal. (mjc ) (Entered: 02/03/2006)
Certified and Transmitted Record on Appeal to Matt Stowe, Office of the Attorney General, 300 W. 15th St., 10th Floor, Austin, TX 78701, via UPS overnight re 568 Notice of Appeal − transmitting 14 boxes of exhibits, 14 transcripts, one docket sheet and one CD containing the certified electronic record (mjc ) (Entered: 02/06/2006)
575 Appeal Remark re 568 Notice of Appeal: Acknowledgement by Texas Attorney General's Office of receipt of record on appeal − receiving one box of the court's record (1 CD, docket sheet and 14 transcripts) and 14 boxes of exhibits (Attachments: # 1 Cover letter)(mjc ) (Entered: 02/21/2006)
576 ORDER re 573 Status Report filed by All Plaintiffs. A hearing is set for 7/10/06 at 10 a.m. in the Homer Thornberry Judicial Building, Third Floor Courtroom, 903 San Jacinto Blvd. in Austin. ORDERED that both parties submit a joint statement as to which portions of the proposed corrective action plans they agree on by 6/23/06 and briefs detailing the most significant issues they have with the opposing party's proposal by the same date . Signed by Judge William W. Justice on 3/9/06. (mjc ) (Entered: 03/10/2006)
577 First MOTION Clarification Concerning July, 2006 Hearing ABout Proposed Corrective Action Plans re 576 Order,, by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Zinn, Susan) (Entered: 03/15/2006)
578 ORDER entered re 577 Motion for clarification. Signed by Judge William W. Justice on 03/16/06. cc:attys 3−16−06 (mll, ) (Entered: 03/16/2006)
579 MOTION for Discovery and Deadlines for CAPs Hearing by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 03/24/2006)
580 Appeal Remark re 568 Notice of Appeal: Notice of record being forwarded from Texas AG's office to atty Susan Zinn − transmitting one box of court's record (1 CD, docket sheet and 14 transcripts) and 14 boxes of exhibits (mjc) (Entered: 03/27/2006)
581 MOTION to Stay Pending Appeal by All Defendants. (Attachments: # 1 Text of Proposed Order # 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 Exhibit # 6 Exhibit)(Halpern, Linda) (Entered: 04/17/2006)
582 ORDER re 581 MOTION to Stay Pending Appeal filed by All Defendants. ORDERED that plaintiffs file a response to defendants' motion by 5 p.m. 4/24/06. Signed by Judge William W. Justice on 4/17/06. (mjc ) (Entered: 04/18/2006)
Set/Reset Deadlines as to 581 MOTION to Stay Pending Appeal. Responses due by 4/24/2006 (mjc ) (Entered: 04/18/2006)

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 55 of 145

04/19/2006 04/20/2006 04/20/2006 04/27/2006
05/04/2006 05/08/2006 05/11/2006 05/31/2006 07/31/2006 08/11/2006 08/23/2006 09/11/2006 09/11/2006 09/19/2006 09/20/2006

583 MOTION for Leave to File Excess Pages (Unopposed) on Motion for Stay Pending Appeal by All Defendants. (Attachments: # 1 Text of Proposed Order)(Halpern, Linda) (Entered: 04/19/2006)
584 ORDER granting 583 Defendants' Unopposed Motion for Leave to File Excess Pages . Signed by Judge William W. Justice on 4/20/06. (mjc) (Entered: 04/20/2006)
585 RESPONSE in Opposition re 581 MOTION to Stay Pending Appeal Plaintiffs' Response to Defendants' Motion for a Stay Pending Appeal filed by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Order Denying Defendants' Motion for a Stay Pending Appeal)(Zinn, Susan) (Entered: 04/20/2006)
586 NOTICE by All Defendants of Filing Monitoring Report − April, 2006 (Attachments: # 1 Exhibit List of Exhibits# 2 Exhibit A# 3 Exhibit B.1 January 06# 4 Exhibit Exhibit B.2# 5 Exhibit Exhibit B.3# 6 Exhibit Exhibit B.4# 7 Exhibit C# 8 Exhibit D# 9 Exhibit E# 10 Exhibit F# 11 Exhibit G# 12 Exhibit H# 13 Exhibit I# 14 Exhibit J# 15 Exhibit K# 16 Exhibit L)(Halpern, Linda) (Entered: 04/27/2006)
587 ORDER granting Defendants' 581 Motion to Stay Pending Appeal. ORDERED that, until such time at the Fifth Circuit has ruled on Defendants' appeal, the hearing scheduled for 7/10/06 and all discovery and related proceedings are STAYED. Signed by Judge William W. Justice on 5/4/06. (mjc ) (Entered: 05/04/2006)
Certified and Transmitted Record on Appeal to US Court of Appeals re 568 Notice of Appeal − transmitting 21 volumes of docments (pp. 1−12,337) and five boxes of exhibits (three of which are sealed) (mjc ) (Entered: 05/08/2006)
588 ORDER re 568 Notice of Appeal filed by All Defendants. ORDERED that all documents previously and subsequently submitted under seal to this Court or the Fifth Circuit remain sealed throughout the appellate process . Signed by Judge William W. Justice on 5/11/06. (copy forwarded to USCA)(mjc) (Entered: 05/11/2006)
Appeal Remark re 568 Notice of Appeal: Notice from USCA of receipt of record on appeal on 5/10/06 − receiving 21 volumes of documents, five boxes of exhibits (three of which are sealed) and 14 transcripts (mjc ) (Entered: 06/01/2006)
589 NOTICE by All Defendants of Filing Quarterly Monitoring Report − July 2006 (Attachments: # 1 Exhibit July 2006 QM Report# 2 Exhibit List# 3 Exhibit A.1# 4 Exhibit A.2# 5 Exhibit A.3# 6 Exhibit A.4# 7 Exhibit A.5# 8 Exhibit A.6# 9 Exhibit B C D E# 10 Exhibit F# 11 Exhibit G H I J)(Halpern, Linda) (Entered: 07/31/2006)
590 MOTION to Withdraw as Attorney by Edward B. Cloutman, III. (Attachments: # 1 Text of Proposed Order)(Cloutman, Edward) (Entered: 08/11/2006)
591 ORDER granting 590 Motion to Withdraw as Attorney. Attorney Edward Bradbury Cloutman, III terminated. Signed by Judge William W. Justice on 08/23/06. cc:attys 8−23−06 (mll, ) (Entered: 08/23/2006)
592 First MOTION for Hearing Plaintiffs' Motion for a Hearing: Corrective Action Plans and Related Remedial Motions by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Order Setting Hearing: CAPs and Remedial Motions)(Zinn, Susan) (Entered: 09/11/2006)
593 MOTION for Discovery Deadlines and Evidence Related to CAPs Hearing by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 09/11/2006)
594 USCA JUDGMENT as to 568 Notice of Appeal filed by All Defendants. Treating the Petition for Rehearing En Banc as a Petition for Panel Rehearing, the Petition for Panel Rehearing is DENIED. Issued as MANDATE 09−07−06. Circuit Judges Reavley, Smith, and Dennis (Attachments: # 1 Judgment)(mll, ) (Entered: 09/19/2006)
595 ORDER that pltfs file an Advisory to the Court at such time when defts' time for filing a petition for writ of certiorari to the US Supreme Court has expired. At that time, pltfs may also file a motion re−urging this Court to consider its Motion for a Hearing; Corrective Action Plans and Related Remedial Motions, its Motion Concerning Discovery, Deadlines and Evidence Related to CAPS Hearing, or any other pending motions, if pltfs so desire. Signed by Judge William W. Justice on 09/20/06. cc:attys 9−20−06(mll, ) (Entered: 09/20/2006)

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 56 of 145

10/31/2006 12/11/2006
01/08/2007
01/08/2007 01/08/2007 01/08/2007 01/08/2007 01/08/2007
01/08/2007 01/17/2007 01/22/2007 01/23/2007
01/25/2007 01/25/2007 01/25/2007 01/31/2007

596 NOTICE by All Defendants of Filing Quarterly Monitoring Report − October 2006 (Attachments: # 1 Quarterly Report# 2 Exhibit # 3 Exhibit # 4 Exhibit # 5 Exhibit # 6 Exhibit # 7 Exhibit # 8 Exhibit # 9 Exhibit # 10 Exhibit # 11 Exhibit)(Halpern, Linda) (Entered: 10/31/2006)
597 ***FILED IN ERROR. PLEASE IGNORE.*** NOTICE by All Plaintiffs Plaintiffs' Advisory to the Court and Re−Urged Motion for a Hearing: Corrective Action Plans and Related Remedial Motions (Attachments: # 1 Text of Proposed Order Order Concerning Plaintiffs' Re−Urged Motion for a Hearing: Corrective Action Plans and Related Remedial Motions)(Zinn, Susan) Modified on 1/8/2007 (fal, ). (Entered: 12/11/2006)
598 ***FILED IN ERROR. PLEASE IGNORE.*** NOTICE by All Plaintiffs Plaintiffs' Amended Advisory to the Court and Re−Urged Motion for a Hearing: Corrective Action Plans and Related Remedial Motions (Attachments: # 1 Text of Proposed Order Order Concerning Plaintiffs' Amended Advisory and Re−Urged Motion for a Hearing: Corrective Action Plans and Related Remedial Orders)(Zinn, Susan) Modified on 1/8/2007 (fal, ). (Entered: 01/08/2007)
599 MOTION for Hearing Plaintiffs' Amended Advisory to the Court and Re−Urged Motion for a Hearing: Corrective Action Plans and Related Remedial Orders by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Zinn, Susan) (Entered: 01/08/2007)
***FILED IN ERROR. Please ignore Notices 597 and 598 . Replaced with Motion 599 .*** (fal, ) (Entered: 01/08/2007)
600 ORDER that the stay pending appeal originally granted by this Court re 587 Order on Motion to Stay, is hereby DISSOLVED. Signed by Judge William W. Justice on 01/08/07. cc:attys 1−9−07(mll, ) (Entered: 01/09/2007)
601 ORDER granting 599 Motion for Hearing. Signed by Judge William W. Justice on 01/08/07. cc:attys 1−9−07 (mll, ) (Entered: 01/09/2007)
Set Motion Hearing Deadlines as to 429 MOTION for Sanctions, 592 First MOTION for Hearing Plaintiffs' Motion for a Hearing: Corrective Action Plans and Related Remedial Motions, 428 MOTION to Extend Term of Decree Paragraphs 284 and 295. Motion Hearings set for 4/9/2007 09:00 AM before William W. Justice, in Austin, Texas. (per 601 Order) (mll, ) (Entered: 01/09/2007)
Set In Chambers Pre−hearing Conference for 3/30/2007 09:00 AM before William W. Justice, in Austin, Texas. (per 601 Order) (mll, ) (Entered: 01/09/2007)
602 U S Supreme Court order denying writ of certiorari. (Attachments: # 1 cover letter)(djh, ) (Entered: 01/18/2007)
603 Joint MOTION for Discovery by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 01/22/2007)
604 MOTION for Leave to File Excess Pages Plaintiffs' January, 2007 Amended Motion to Enforce Consent Decree by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Proposed Order, Plaintiffs' Motion for Permission to File January, 2007 Amended Motion to Enforce Consent Decree# 2 Plaintiffs' January, 2007 Amended Motion to Enforce Consent Decree# 3 Text of Proposed Order Order Granting Plaintiffs' January, 2007 Amended Motion to Enforce Consent Decree)(Zinn, Susan) (Entered: 01/23/2007)
605 ORDER granting 604 Motion for Leave to File Excess Pages. Signed by Judge William W. Justice on 01/25/07. cc:attys 1−25−07 (mll, ) (Entered: 01/25/2007)
606 ORDER granting 603 Motion for Discovery. Signed by Judge William W. Justice on 01/25/07. cc:attys 1−25−07 (mll, ) (Entered: 01/25/2007)
607 Amended MOTION to Enforce Consent Decree by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(mll, ) (Entered: 01/25/2007)
608 NOTICE by All Defendants of Filing Quarterly Monitoring Report − January 2007 (Attachments: # 1 Quarterly Report# 2 Exhibit List# 3 Exhibit A−1# 4 Exhibit A−2# 5

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 57 of 145

02/09/2007 02/14/2007
02/14/2007 02/14/2007 02/16/2007
02/19/2007 02/21/2007 02/21/2007 02/23/2007 02/26/2007

Exhibit A−3# 6 Exhibit A−4# 7 Exhibit A−5# 8 Exhibit A−6# 9 Exhibit A−7# 10 Exhibit A−8# 11 Exhibit A−9# 12 Exhibit B−G)(Halpern, Linda) (Entered: 01/31/2007)
609 MOTION re 606 Order on Motion for Discovery Revised Proposed Corrective Action Plans by All Plaintiffs. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10 # 11 # 12 Text of Proposed Order)(Swanson, Jane) (Entered: 02/09/2007)
610 ***DEFICIENT DOCUMENT, ATTORNEY MUST REFILE.*** MOTION Notice to the Class Joint Motion Concerning Notice to the Class Concerning Hearing to be Held Beginning April 9, 2007 by All Plaintiffs. (Attachments: # 1 Exhibit Ex. 1, Notice to Class Concerning Hearing to be Held Beginning April 9, 2007# 2 Text of Proposed Order Order Granting Joint Motion Concerning Notice to the Class Concerning Hearing to be Held Beginning April 9, 2007)(Zinn, Susan) Modified on 2/14/2007 (fal, ). (Entered: 02/14/2007)
NOTICE of Deficiency regarding the MOTION 610 submitted by All Plaintiffs, All Defendants. Attorney must refile with certificate of service. Correction should be made by one business day. (fal, ) (Entered: 02/14/2007)
611 MOTION notice to class Joint Motion Concerning Notice to the Class by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Order Concerning Notice# 2 Exhibit Notice to Class)(Zinn, Susan) (Entered: 02/14/2007)
612 ORDER granting 611 Motion concerning notice to the Class. Defts shall forward the notice and pltf's proposed February 2007 Corrective Action Plans to all Texas Health and Human Services Commission Eligibility Services offices no later than 2−16−07, using defts' normal electronic means of transmission. Defts shall cause the notices to be posted in all HHSC Eligibility offices no later than 2−20−07. Defts shall also cause a copy of the February 2007 Proposed Corrective Action Plans to be available upon request in each office. Defts shall also cause these documents to remain available at least until 3−26−07. No later than 2−26−07, defts' counsel shall notify the Court in writing that the notices have been delivered to all HHSC Eligibility Services offices. Defts shall also notify pltfs' counsel in writing at the same time. The Clerk shall accept written comments on the Motion and proposed Plans, in care of pltfs' lead counsel. To be accepted, comments must be postmarked no later than 3−26−07. Pltfs' lead counsel shall take care to preserve each written comment that she receives. No later than 4−2−07, pltf's lead counsel shall forward the originals of all written comments to the Clerk of Court, with copies sent to chambers of the undersigned, and defts' counsel at the same time. The Clerk is directed to accept hard copies of this filing. If pltfs' lead counsel receives no written comments by this date, pltfs' counsel shall so certify in writing to the Court, with a copy to Chambers and Defts' counsel at the same time. Signed by Judge William W. Justice on 02/16/07. cc:attys 2−16−07 (mll, ) (Entered: 02/16/2007)
613 RESPONSE to Motion re 607 MOTION to Enforce Consent Decree (Defendants' Response to Plaintiffs' Motions Pending Hearing filed by All Defendants. (Halpern, Linda) (Entered: 02/19/2007)
614 MOTION more definite response re 613 Response to Motion, 607 MOTION to Enforce Consent Decree Plaintiffs' Motion for More Definite Response to their Amended Motion to Enforce Consent Decree by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Zinn, Susan) (Entered: 02/21/2007)
615 MOTION use of deposition transcripts Motion Concerning Use of Deposition Transcripts by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Zinn, Susan) (Entered: 02/21/2007)
616 NOTICE by All Defendants of Compliance with Joint Motion Concerning Notice to the Class (Halpern, Linda) (Entered: 02/23/2007)
617 ***FILED IN ERROR, PLEASE IGNORE***

MOTION for Leave to Appear Pro Hac Vice by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Pro Hac Vice)(Zinn, Susan) Modified on 2/26/2007 (ttm, ). (Entered: 02/26/2007)

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 58 of 145

02/26/2007

***FILED IN ERROR. Document # 617, Motion for leave to appear PHV. PLEASE IGNORE.***

03/01/2007
03/06/2007 03/12/2007
03/13/2007 03/19/2007

This document must be submitted in paper on proper form with filing fee of $25 to the USDC (ttm, ) (Entered: 02/26/2007)
618 RESPONSE to Motion re 614 MOTION more definite response re 613 Response to Motion, 607 MOTION to Enforce Consent Decree Plaintiffs' Motion for More Definite Response to their Amended Motion to Enforce Consent Decree Defendants' Opposition to Plaintiffs' Motion for More Definite Response filed by All Defendants. (Attachments: # 1 Text of Proposed Order)(Halpern, Linda) (Entered: 03/01/2007)
619 ORDER denying 614 Motion for a More Definite Response. Signed by Judge William W. Justice on 3/6/07. (mjc) (Entered: 03/06/2007)
620 ORDER granting 615 Motion concerning use of depositions at hearing. The parties may submit relevant excerpts of transcripts of oral depositions, in connection with the 4−9−07 hearing. The Court will consider any such excerpts, without requiring the parties read the relevant testimony into the record. The parties may rely on their agreed depositions on written questions, during the 4−9−07 hearing. Signed by Judge William W. Justice on 03/09/07. cc:attys 3−12−07(mll, ) (Entered: 03/12/2007)
621 NOTICE of Attorney Appearance by Linda Ann Halpern on behalf of All Defendants (Halpern, Linda) (Entered: 03/13/2007)
622 ***FILED IN ERROR, ATTORNEY TO REFILE***

03/19/2007

Additional Attachments to Main Document: 609 MOTION re 606 Order on Motion for Discovery Revised Proposed Corrective Action Plans. (Swanson, Jane) Modified on 3/20/2007 (ttm, ). (Entered: 03/19/2007)
623 ***FILED IN ERROR, ATTORNEY MUST REFILE***

03/20/2007

Additional Attachments to Main Document: 606 Order on Motion for Discovery, 622 Additional Attachments to Main Document. (Halpern, Linda) Modified on 3/20/2007 (ttm, ). (Entered: 03/19/2007)
***FILED IN ERROR. Document # 622, Additional Attachments to Main Document. PLEASE IGNORE. This document to be refiled as a Response to Non−Motion***

03/20/2007

(ttm, ) (Entered: 03/20/2007)
***FILED IN ERROR. Document # 623, Additional Attachments to Main Document. PLEASE IGNORE. This document to be refiled as a Response to Non−Motion***

03/20/2007

(ttm, ) (Entered: 03/20/2007)
624 RESPONSE to 606 Order on Motion for Discovery Defs' Statement Concerning Pltfs' Corrective Action Plans −refile by All Defendants. (Halpern, Linda) Modified on 3/21/2007 (ttm, ) ***THIS CORRECTED DOCUMENT REPLACES DOC #623***

03/21/2007

(Entered: 03/20/2007)
625 RESPONSE to 606 Order on Motion for Discovery Statement re Defends' CAPs Deficiencies by All Plaintiffs. (Swanson, Jane) Modified on 3/21/2007 (ttm, ) ***THIS CORRECTED DOCUMENT REPLACES DOCUMENT #622***

03/30/2007 04/02/2007

(Entered: 03/21/2007)
627 Minute Entry for proceedings held before Judge William W. Justice : Final Pretrial Conference held on 3/30/2007. (Court Reporter Julie Goodwin.) (mll, ) (Entered: 04/05/2007)
626 NOTICE by All Plaintiffs re 612 Order on Motion for Miscellaneous Relief,,,,,, No Class Comments on Proposed CAPs (Swanson, Jane) (Entered: 04/02/2007)

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 59 of 145

04/06/2007 04/09/2007 04/09/2007 04/10/2007
04/12/2007

628 ORDER that the Court will convene as scheduled at 9 a.m. on 4/9/07. Terms of the proposed settlement will be announced in open court. It is not anticipated there will be further proceedings. All witnesses are excused from attendance at the hearing. Signed by Judge William W. Justice on 4/6/07. (mjc ) (Entered: 04/09/2007)
630 Minute Entry for proceedings held before Judge William W. Justice : Motion Hearing held on 4/9/2007 re 607 MOTION to Enforce Consent Decree filed by All Plaintiffs. (Court Reporter Julie Goodwin.) (mll, ) (Entered: 04/11/2007)
631 TRANSCRIPT of Final Pretrial Conference held on 03/30/07 before Judge Justice in Austin, Texas. Court Reporter: Julie Goodwin. (mll, ) Additional attachment(s) added on 4/12/2007 (mll, ). (Entered: 04/12/2007)
629 ORDER that parties jointly file a copy of the proposed terms of settlement regarding pltf's 607 Amended Motion to Enforce Consent Decree, on or before 4−27−07 at 5:00 p.m. Defts shall file a brief by 4−12−07 at 5:00 p.m. Pltfs may also file a brief by 4−12−07 at 5:00 p.m. Signed by Judge William W. Justice on 04/09/07. cc:attys 4−10−07(mll, ) (Entered: 04/10/2007)
632 ***FILED IN ERROR, ATTORNEY TO REFILE AS JOINT BRIEF***

04/12/2007 04/13/2007

Joint MOTION Notice to Class and Hearing re 629 Order, by All Plaintiffs. (Attachments: # 1 Exhibit Ex A, Notice to Class# 2 Text of Proposed Order Order Concerning Notice)(Zinn, Susan) Modified on 4/13/2007 (ttm, ). (Entered: 04/12/2007)
633 Joint MOTION to Amend/Correct 632 Joint MOTION Notice to Class and Hearing re 629 Order, by All Plaintiffs, All Defendants. (Attachments: # 1 Exhibit Exhibit A# 2 Text of Proposed Order)(Halpern, Linda) (Entered: 04/12/2007)
***FILED IN ERROR. Document # 632, Joint Motion. PLEASE IGNORE. Attorney to refile as a Joint Brief***

04/13/2007

(ttm, ) (Entered: 04/13/2007)
***FILED IN ERROR. Document # 633, Joint Motion to Amend. PLEASE IGNORE. Attorny to refile as Brief and under the login of the signing attorney***

04/13/2007 04/16/2007 04/27/2007 04/27/2007
04/30/2007

(ttm, ) (Entered: 04/13/2007)
634 BRIEF filed (Replaces Documents # 632 and 633) by All Plaintiffs, All Defendants. (Attachments: # 1 Exhibit A# 2 Text of Proposed Order)(Halpern, Linda) (Entered: 04/13/2007)
635 ORDER Concerning Notice to the Class and Setting Hearing Concerning Proposed Settlement Orders. This case is set for a hearing so that the Court may determine if the proposed settlement is fair, reasonable, and adequate to the class. Set Evidentiary Hearing for 7/9/2007 10:00 AM before William W. Justice. Signed by Judge William W. Justice on 04/13/07. cc:attys 4−16−07(mll, ) (Entered: 04/16/2007)
636 Joint MOTION in Connection with Remedial Order by All Plaintiffs, All Defendants. (Attachments: # 1 Text of Proposed Order)(Halpern, Linda) (Entered: 04/27/2007)
637 Joint MOTION for Entry of an Agreed Corrective Action Order by All Plaintiffs, All Defendants. (Attachments: # 1 Exhibit 1 Case Management# 2 Exhibit 2 Checkup Reports and Lagging Counties# 3 Exhibit 3 Checkups# 4 Exhibit 4 Health Outcomes and Dental Assessment# 5 Exhibit 5 Managed Care# 6 Exhibit 6 Outreach and Informing# 7 Exhibit 7 Prescription and Nonprescription DME and Supplies# 8 Exhibit 8 Provider Supply# 9 Exhibit 9 Provider Training# 10 Exhibit 10 Toll Free Numbers# 11 Exhibit 11 Transportation Program# 12 Text of Proposed Order)(Halpern, Linda) (Entered: 04/27/2007)
638 NOTICE by All Defendants of Filing Quarterly Monitoring Report − April 2007 (Attachments: # 1 April 2007 Quarterly Report# 2 Errata A−B# 3 Exhibit C.1A# 4 Exhibit C.1B# 5 Errata C.2A# 6 Exhibit C.2B# 7 Exhibit C.3A# 8 Exhibit C.3B# 9 Exhibit D−E# 10 Exhibit F−G# 11 Exhibit H# 12 Exhibit I−J)(Halpern, Linda) (Entered: 04/30/2007)

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 60 of 145

05/02/2007 05/11/2007
06/08/2007 07/09/2007 07/09/2007 07/09/2007 07/09/2007 07/09/2007 07/12/2007 07/12/2007 07/13/2007
07/13/2007
07/31/2007
07/31/2007 08/06/2007

639 MOTION for Discovery Plaintiffs' Unopposed Motion Concerning Modified Depositions on Written Questions by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Proposed Order Concerning Written Depositions)(Zinn, Susan) (Entered: 05/02/2007)
640 ORDER granting 639 Motion for Discovery. Pltfs may conduct modified depositions on written questions for use after the 7−9−07 hearing scheduled in this case. This Order does not authorize pltfs to take modified depositions on written questions of defts or its employees. Pltfs may use the modified procedure for depositions on written questions that the Court has approved for previous use in this case. The Court's HIPPA Protective Order continues in effect. The Protective Order addresses information about the named pltfs and/or class members. Pltfs may request permission to ask for further discovery to prepare for the hearing, if needed. Signed by Judge William W. Justice on 05/11/07. cc:attys 5−14−07 (mll, ) (Entered: 05/14/2007)
641 NOTICE by All Defendants to the Court Regarding Notification to the Class (Halpern, Linda) (Entered: 06/08/2007)
642 Hearing Witness List. (mll, ) (Entered: 07/12/2007)
643 FILED IN ERROR. SEE DOCUMENT 650 FOR CORRECT PLEADING Exhibit List by All Plaintiffs. (mll, ) Modified on 7/30/2007 (mll, ). (Entered: 07/12/2007)
644 Exhibit List by All Defendants. (mll, ) (Entered: 07/12/2007)
645 Minute Entry for proceedings held before Judge William W. Justice : Show Cause Hearing held on 7/9/2007. (Court Reporter Julie Goodwin.) (mll, ) (Additional attachment(s) added on 12/28/2016: # 1 Transcript of Fairness Hearing) (mll, ). (Entered: 07/12/2007)
650 Exhibit List by All Plaintiffs.. (mll, ) (Entered: 07/30/2007)
646 MOTION for Extension of Time to File Reply to Defendants' Supplemental Response to Plaintiffs' Application for Interim Attorneys' Fees (Unopposed) by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Zinn, Susan) (Entered: 07/12/2007)
647 MOTION permission to file class members' written comments by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Zinn, Susan) (Entered: 07/12/2007)
648 ORDER granting 646 Motion for Extension of Time to File Reply to defts' Supplemental Response to pltfs' Application for Interim Attys' Fees. If parties cannot reach agreement, pltfs shall file their Reply at the same time that they file a contested Supplemental Application for Attys' Fees. Signed by Judge William W. Justice on 07/13/07. cc:attys 7−13−07 (mll, ) (Entered: 07/13/2007)
649 ORDER granting 647 Motion concerning comments from Class Members. Pltfs' counsel shall take care to protect any comments that she receives until she forwards them to the Court. Pltfs' counsel shall file the comments by mailing the originals and a copy to the Clerk of Court. Pltfs' counsel shall also mail a copy of the same to the Chambers of the undersigned and to opposing counsel. Pltfs' counsel shall mail said copies on 8−2−07. The Clerk shall accept the original and copies of said comments, as paper documents. The Clerk shall file the documents UNDER SEAL, in accordance with this Court's discovery Order 606 and HIPPA Protective Order 491 . Signed by Judge William W. Justice on 07/13/07. cc:attys 7−13−07 (mll, ) (Entered: 07/13/2007)
651 NOTICE by All Defendants of Filing Quarterly Monitoring Report − July 2007 (Attachments: # 1 July 2007 Quarterly Report# 2 Exhibit A.1# 3 Exhibit A.2# 4 Exhibit A.3# 5 Exhibit A.4# 6 Exhibit A.5# 7 Exhibit A.6# 8 Exhibit B.1# 9 Exhibit B.2# 10 Exhibit C# 11 Exhibit D# 12 Exhibit E# 13 Exhibit F# 14 Exhibit G# 15 Exhibit H# 16 Exhibit I# 17 Exhibit J# 18 Exhibit K)(Halpern, Linda) (Entered: 07/31/2007)
652 MOTION for Extension of Time to File Proposed Order by All Plaintiffs. (Attachments: # 1)(Zinn, Susan) (Entered: 07/31/2007)
653 WITHDRAWN PER 655 ORDER ORDER granting 652 Motion for Extension of Time to File Proposed Order. Pltfs shall file their proposed order no later than 8−10−07. Signed by Judge William W.

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 61 of 145

08/06/2007 08/06/2007
08/06/2007
08/10/2007
08/10/2007 08/13/2007 08/13/2007 08/24/2007
08/31/2007 09/05/2007
09/27/2007 09/27/2007 10/19/2007 10/25/2007 10/25/2007 10/29/2007

Justice on 07/06/07. cc:attys 8−6−07 (mll, ) Modified on 8/7/2007 (mll, ). (Entered: 08/06/2007)
654 Letter from Susan Zinn re sealed written comments from class members (mll, ) Additional attachment(s) added on 8/7/2007 (mll, ). (Entered: 08/07/2007)
655 ORDER granting MOTION for Extension of Time to File Proposed Order filed by All Plaintiffs. Pltfs shall file their proposed Order no later than 8−10−07. The order of this court dated 7−6−07 is hereby withdrawn. Signed by Judge William W. Justice on 08/06/07. cc:attys 8−6−07(mll, ) (Entered: 08/07/2007)
656 VACATED PER 659 ORDER ORDER granting 636 Motion in connection with remedial order, granting 637 Motion for entry of an agreed corrective action order. Signed by Judge William W. Justice on 08/06/07, Nunc Pro Tunc, 04/28/07. cc:attys 8−7−07 (mll, ) Modified on 8/13/2007 (mll, ). (Entered: 08/07/2007)
657 MOTION Approval of Corrective Action Order re 637 Joint MOTION for Entry of an Agreed Corrective Action Order by All Parties by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Memorandum Opinion Approving Corrective Action Order)(Zinn, Susan) (Entered: 08/10/2007)
658 NOTICE by All Plaintiffs re 656 Order on Motion for Miscellaneous Relief, Joint Advisory by All Parties (Zinn, Susan) (Entered: 08/10/2007)
659 ORDER vacating 656 Order. Signed by Judge William W. Justice on 08/13/07. cc:attys 8−13−07(mll, ) (Entered: 08/13/2007)
660 AMENDED ORDER granting 636 Joint MOTION in Connection with Remedial Order filed by All Plaintiffs, All Defendants. Signed by Judge William W. Justice on 08/13/07. cc:attys 8−13−07(mll, ) (Entered: 08/13/2007)
661 Joint MOTION for Attorney Fees by All Plaintiffs. (Attachments: # 1 Exhibit class notice# 2 Exhibit Baxter affidavit# 3 Exhibit Zinn declaration# 4 Exhibit Zinn time records# 5 Exhibit Zinn expense records# 6 Exhibit Swanson declaration# 7 Exhibit Swanson time# 8 Exhibit Swanson expenses# 9 Exhibit Heard declaration# 10 Exhibit Heard time records# 11 Text of Proposed Order)(Swanson, Jane) (Entered: 08/24/2007)
662 PROCEDURAL ORDER re 661 Joint MOTION for Attorney Fees filed by All Plaintiffs. Signed by Judge William W. Justice on 08/31/07. cc:attys 8−31−07(mll, ) (Entered: 08/31/2007)
663 MEMORANDUM OPINION & FINDINGS OF FACT AND CONCLUSIONS OF LAW. The Court concludes that the proposed settlement is fair, reasonable and adequate. Signed by Judge William W. Justice on 09/05/07. cc:attys 9−6−07(mll, ) (Entered: 09/06/2007)
664 NOTICE of Designation of Attorney in Charge to James Byron Eccles on behalf of All Defendants (Eccles, James) (Entered: 09/27/2007)
665 NOTICE by All Defendants to the Court Regarding Notification to the Class (Eccles, James) (Entered: 09/27/2007)
666 MOTION Add Nicole Carroll as Named Plaintiff/Class Representative by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Zinn, Susan) (Entered: 10/19/2007)
667 BILL OF COSTS Approved by Fifth Circuit. Costs Taxed in the amount of $260.00. (kls, ) (Entered: 10/25/2007)
668 NOTICE by All Plaintiffs Concerning Comments from Class Members (Zinn, Susan) (Entered: 10/25/2007)
669 MOTION for Attorney Fees Motion for Entry of Order Concering Interim Fees, Costs and Expenses by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Order to Approve Interim Fees)(Zinn, Susan) (Entered: 10/29/2007)

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 62 of 145

10/31/2007
10/31/2007 11/01/2007 11/01/2007
12/20/2007 12/26/2007 01/31/2008 02/15/2008 02/20/2008 04/03/2008 04/30/2008 04/30/2008 04/30/2008 04/30/2008 04/30/2008

670 NOTICE by All Defendants of Filing Quarterly Monitoring Report − October 2007 (Attachments: # 1 October 2007 Quarterly Monitoring Report# 2 Exhibit A and B# 3 Exhibit C_1# 4 Exhibit C_2# 5 Exhibit C_3# 6 Exhibit C_4# 7 Exhibit C_5# 8 Exhibit C_6# 9 Exhibit D thru G# 10 Exhibit H# 11 Exhibit I thru Y)(Eccles, James) (Entered: 10/31/2007)
671 RESPONSE to Motion re 669 MOTION for Attorney Fees Motion for Entry of Order Concering Interim Fees, Costs and Expenses filed by All Defendants. (Eccles, James) (Entered: 10/31/2007)
672 ORDER granting 666 Motion to add Nicole Carroll as a named plaintiff and class representative. Signed by Judge William W. Justice on 11/01/07. cc:attys 11−1−07(mll, ) (Entered: 11/01/2007)
673 ORDER granting 669 Agreed Motion for Interim Attorneys' Fees, Costs and Expenses. Ordered that parties' proposed settlement concerning Plaintiffs' interim fees, costs and expenses is approved. Defendants shall pay Plaintiffs' counsel as follows: Susan F. Zinn, $1,696,061.90 in fees and $56,980.93 in costs and expenses; Jane K. Swanson, $1,326,012.20 in fees and $27,955.18 in costs and expenses; Edward B. Cloutman III, $30,837.49 in fees and $1.981.75 in costs and expenses; and John Heard, $30,837.49 in fees. Defandants shall make payment to Plaintiffs' counsel without delay, and no later than 1/12/2008 (120 days after the date of posting of notice to the class). Signed by Judge William W. Justice on 11/1/07. (mjc ) (Entered: 11/01/2007)
674 MOTION Concerning Filing of Tardy Class Comments by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Zinn, Susan) (Entered: 12/20/2007)
675 ORDER terminating 674 Motion concerning tardy comments from Class Members. The Court does not need to receive tardy comments. Pltfs' counsel need not preserve them unless she chooses to do so. Signed by Judge William W. Justice on 12/26/07. cc:attys 12−27−07 (mll, ) (Entered: 12/27/2007)
676 NOTICE by All Defendants Of Filing Quarterly Monitoring Report − January 2008 (Attachments: # 1 # 2 Exhibit A# 3 Exhibit B−C# 4 Exhibit D# 5 Exhibit E through O# 6 Exhibit P−1# 7 Exhibit P−2# 8 Exhibit Q# 9 Exhibit R; T through Y# 10 Exhibit S)(Eccles, James) (Entered: 01/31/2008)
677 Joint MOTION for Extension of Time to File Health Outcome Measures Agreement by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 02/15/2008)
678 ORDER granting 677 Motion for Extension of Time. The parties' agreement on a set of health outcome measures for the class is now due on 4−3−08. Signed by Judge William W. Justice on 02/20/08. cc:attys 2−20−08 (mll, ) (Entered: 02/20/2008)
679 NOTICE by All Plaintiffs of Partial Health Outcomes Measures Agreement (Attachments: # 1)(Swanson, Jane) (Entered: 04/03/2008)
680 Joint MOTION for Attorney Fees by All Plaintiffs. (Attachments: # 1 Text of Proposed Order # 2 Zinn declaration# 3 Zinn time records# 4 Zinn expenses# 5 Swanson declaration# 6 Swanson time# 7 Swanson expenses# 8 Baxter affidavit# 9 proposed class notice)(Swanson, Jane) (Entered: 04/30/2008)
681 NOTICE by All Defendants of Filing Quarterly Monitoring Report April 2008 (Attachments: # 1 April 2008 Quarterly Monitoring Report# 2 Exhibit A# 3 Exhibit B# 4 Exhibit C# 5 Exhibit D & E)(Eccles, James) (Entered: 04/30/2008)
682 NOTICE by All Defendants re 681 Notice (Other) Exhibits (Attachments: # 1 Exhibit f−1a# 2 Exhibit F−2# 3 Exhibit G H I J K L M)(Eccles, James) (Entered: 04/30/2008)
683 NOTICE by All Defendants re 681 Notice (Other) Exhibits (Attachments: # 1 Exhibit N−2# 2 Exhibit N−3# 3 Exhibit N−4# 4 Exhibit N−5# 5 Exhibit O)(Eccles, James) (Entered: 04/30/2008)
684 NOTICE by All Defendants re 681 Notice (Other) Exhibits (Attachments: # 1 Exhibit Q R S T & U)(Eccles, James) (Entered: 04/30/2008)

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05/02/2008 05/27/2008 05/30/2008 07/01/2008 07/31/2008 07/31/2008 07/31/2008
07/31/2008 07/31/2008 07/31/2008 07/31/2008 08/29/2008 09/10/2008
09/15/2008 09/17/2008 10/29/2008
10/29/2008 10/31/2008 10/31/2008

685 PROCEDURAL ORDER re 680 Joint MOTION for Attorney Fees, Costs, and Expenses (Second Half of 2007) filed by All Plaintiffs. Signed by Judge William W. Justice on 05/02/08. cc:attys 5−5−08(mll, ) (Entered: 05/05/2008)
686 NOTICE by All Defendants Report to the Court Regarding Notification to the Class (Eccles, James) (Entered: 05/27/2008)
687 NOTICE by All Defendants re 681 Notice (Other) (Attachments: # 1 Exhibit April 2008 Supplemental Quarterly Monitoring Report, # 2 Exhibit Z)(Eccles, James) (Entered: 05/30/2008)
688 NOTICE by All Defendants Texas Medicaid Medical Transportation Program − Incremental Report I 05/31/08 (Eccles, James) (Entered: 07/01/2008)
689 NOTICE by All Defendants of filing of Quarterly Report July 2008 (Attachments: # 1 Quarterly Monitoring Report July 2008, # 2 Exhibit List)(Eccles, James) Modified on 8/1/2008 (cm, ). Modified on 8/1/2008 (cm, ). (Entered: 07/31/2008)
690 Additional Attachments to Main Document: 689 Notice (Other).. (Attachments: # 1 Exhibit 2, # 2 Exhibit 3)(Eccles, James) Modified on 8/1/2008 (cm, ). Modified on 8/1/2008 (cm, ). (Entered: 07/31/2008)
691 Additional Attachments to Main Document: 689 Notice (Other).. (Attachments: # 1 Exhibit 5, # 2 Exhibit 6, # 3 Exhibit 7, # 4 Exhibit 8, # 5 Exhibit 9, # 6 Exhibit 10, # 7 Exhibit 11, # 8 Exhibit 12, # 9 Exhibit 13)(Eccles, James) Modified on 8/1/2008 (cm, ). Modified on 8/1/2008 (cm, ). (Entered: 07/31/2008)
692 Additional Attachments to Main Document: 689 Notice (Other).. (Attachments: # 1 Exhibit 15, # 2 Exhibit 16, # 3 Exhibit 17, # 4 Exhibit 18)(Eccles, James) (Entered: 07/31/2008)
693 Additional Attachments to Main Document: 689 Notice (Other).. (Eccles, James) (Entered: 07/31/2008)
694 Additional Attachments to Main Document: 689 Notice (Other).. (Eccles, James) (Entered: 07/31/2008)
695 Additional Attachments to Main Document: 689 Notice (Other).. (Attachments: # 1 Exhibit 22, # 2 Exhibit 23, # 3 Exhibit 24, # 4 Exhibit 25, # 5 Exhibit 26, # 6 Exhibit 27, # 7 Exhibit 28, # 8 Exhibit 29)(Eccles, James) (Entered: 07/31/2008)
696 NOTICE by All Plaintiffs re 685 Order Concerning Interim Attorneys' Fees (Zinn, Susan) (Entered: 08/29/2008)
697 NOTICE by All Defendants re 689 Notice (Other) of Filing supplemental Quarterly Monitoring Report − July 2008 (Attachments: # 1 Supplement July 2008 Quarterly Monitoring Report−Supplemental Report, # 2 Exhibit 30, # 3 Exhibit 31)(Eccles, James) (Entered: 09/10/2008)
698 MOTION for Attorney Fees by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Interim Attorneys' Fees (2nd Half 2007))(Zinn, Susan) (Entered: 09/15/2008)
699 NOTICE by All Defendants Texas Medicaid Medical Transportation Program − Incremental Report II 08/30/2008 (Eccles, James) (Entered: 09/17/2008)
700 ORDER for Defendants, within 10 days of receipt of this Order, to signify their agreement with 698 Plaintiffs' motion and proposed order or show cause why this Court should not grant Plaintiff's 698 Motion for Attorney Fees as unopposed. Signed by William W. Justice on 10/28/08. (mjc ) (Entered: 10/29/2008)
Set/Reset Deadlines: Defendants' response due by 11/10/2008. (mjc ) (Entered: 10/29/2008)
701 NOTICE by All Defendants of Filing Quarterly Monitoring Report October 2008 (Attachments: # 1 Appendix October 2008 QMR Part 1, # 2 Appendix October 2008 QMR Part 2)(Eccles, James) (Entered: 10/31/2008)
702 NOTICE by All Defendants re 701 Notice (Other) Exhibits 1 and 2 (Attachments: # 1 Exhibit 2)(Eccles, James) (Entered: 10/31/2008)

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 64 of 145

10/31/2008 10/31/2008 10/31/2008 10/31/2008 11/07/2008 11/14/2008
12/11/2008 01/30/2009
01/30/2009 01/30/2009 03/16/2009 03/16/2009 03/16/2009 04/17/2009 04/17/2009 04/29/2009

703 NOTICE by All Defendants re 701 Notice (Other) Exhibits 3 − 9 (Attachments: # 1 Exhibit 4, # 2 Exhibit 5, # 3 Exhibit 6, # 4 Exhibit 7, # 5 Exhibit 8, # 6 Exhibit 9)(Eccles, James) (Entered: 10/31/2008)
704 NOTICE by All Defendants re 701 Notice (Other) Exhibits 10 − 20 (Attachments: # 1 Exhibit 11, # 2 Exhibit 12, # 3 Exhibit 13, # 4 Exhibit 14, # 5 Exhibit 15, # 6 Exhibit 16, # 7 Exhibit 17, # 8 Exhibit 18, # 9 Exhibit 19, # 10 Exhibit 20)(Eccles, James) (Entered: 10/31/2008)
705 NOTICE by All Defendants re 701 Notice (Other) Exhibits 21 − 27 (Attachments: # 1 Exhibit 22, # 2 Exhibit 23, # 3 Exhibit 24, # 4 Exhibit 25, # 5 Exhibit 26, # 6 Exhibit 27)(Eccles, James) (Entered: 10/31/2008)
706 NOTICE by All Defendants re 701 Notice (Other) Exhibit List Index (Eccles, James) (Entered: 10/31/2008)
707 NOTICE by All Defendants re 700 Order on Motion for Attorney Fees, in Response to Order of 10/28/2008 (Docket # 700) (Eccles, James) (Entered: 11/07/2008)
708 ORDER granting 680 Motion for Attorney Fees; granting 698 Motion for Attorney Fees. Defts shall make payment to plfs' counsel as follows: Susan F Zinn, fees of $104,579.29; costs/expenses of $1,919.65; Jane K Swanson, fees of $72,673.76; costs/expenses of $827.30. Defts are hereby ordered to make payment to plts' counsel no earlier than 1−2−09 and no later than 1−16−09. Signed by William W. Justice on 11/14/08. cc:attys 11−17−08 (mll, ) (Entered: 11/17/2008)
709 NOTICE by All Defendants Texas Medicaid Medical Transportation Program − Incremental Report III November 30, 2008 (Eccles, James) (Entered: 12/11/2008)
710 NOTICE by All Defendants of filing quarterly Monitory Report January 2009 (Attachments: # 1 Appendix January 2009 QMR for the months of October through December 2008, # 2 Exhibit Exhibit List, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9)(Eccles, James) (Entered: 01/30/2009)
711 NOTICE by All Defendants re 710 Notice (Other), Notice (Other) Exhibit 10 − 18 (Attachments: # 1 Exhibit 11, # 2 Exhibit 12, # 3 Exhibit 13, # 4 Exhibit 14, # 5 Exhibit 15, # 6 Exhibit 16, # 7 Exhibit 17, # 8 Exhibit 18)(Eccles, James) (Entered: 01/30/2009)
712 NOTICE by All Defendants re 710 Notice (Other), Notice (Other) Exhibits 19−30 (Attachments: # 1 Exhibit 20, # 2 Exhibit 21, # 3 Exhibit 22, # 4 Exhibit 23, # 5 Exhibit 24, # 6 Exhibit 25, # 7 Exhibit 26, # 8 Exhibit 27, # 9 Exhibit 28, # 10 Exhibit 29, # 11 Exhibit 30)(Eccles, James) (Entered: 01/30/2009)
713 ***DISREGARD WRONG DOCUMENT WILL BE REFILED*** Second MOTION to Amend/Correct 656 Order on Motion for Miscellaneous Relief,,, by All Defendants. (Attachments: # 1 Text of Proposed Order)(Eccles, James) Modified on 3/16/2009 (lhj, ). (Entered: 03/16/2009)
714 Joint MOTION To Modify Procedural Provisions of Transportaiton Corrective Action Order (Unopposed) re 713 Second MOTION to Amend/Correct 656 Order on Motion for Miscellaneous Relief,,, Replacing #713 by All Defendants. (Attachments: # 1 Text of Proposed Order)(Eccles, James) (Entered: 03/16/2009)
715 NOTICE by All Defendants Second Amended Medicaid Medical Transportation Program Corrective Action Plan (Eccles, James) (Entered: 03/16/2009)
716 ORDER transferring this case to Judge Richard A. Schell. Signed by William W. Justice on 04/17/09. cc:attys 4−17−09(mll, ) . (Entered: 04/17/2009)
Case Assigned to Judge Richard A. Schell. William W. Justice no longer assigned to the case. (mll, ) (Entered: 04/17/2009)
717 ORDER granting 714 Motion to Modify Procedural Provisions of the Transportation Corrective Action Order. Signed by Judge Richard A. Schell on 4/29/2009. (pad, ) (Entered: 04/29/2009)

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 65 of 145

04/30/2009
04/30/2009 04/30/2009 04/30/2009 05/07/2009 05/07/2009 06/05/2009

718 MOTION for Attorney Fees Joint Motion of All Parties by All Plaintiffs. (Attachments: # 1 Exhibit EX 1, Zinn Declaration, # 2 Exhibit EX 1A, Zinn 2008 Time Records, # 3 Exhibit EX 1B, Zinn 2008 Cost and Expense Records, # 4 Exhibit EX 2, Swanson Declaration, # 5 Exhibit EX 2A, Swanson 2008 Time Records, # 6 Exhibit EX 2B, Swanson 2008 Cost and Expense Records, # 7 Exhibit EX 3, Baxter Affidavit, # 8 Exhibit EX 4, Notice to Class, # 9 Text of Proposed Order Proposed Order)(Zinn, Susan) (Entered: 04/30/2009)
719 NOTICE by All Defendants of Filing Quarterly Monitoring Report − April 2009 (Attachments: # 1 Appendix Part 1− April 2009 QMR, # 2 Appendix April 2009 QMR Part 2, # 3 Exhibit List, # 4 Exhibit 1, # 5 Exhibit 2)(Eccles, James) (Entered: 04/30/2009)
720 NOTICE by All Defendants re 719 Notice (Other) Exhibit 3 (Attachments: # 1 Exhibit 4, # 2 Exhibit 5, # 3 Exhibit 6, # 4 Exhibit 7, # 5 Exhibit 8, # 6 Exhibit 9, # 7 Exhibit 10, # 8 Exhibit 11)(Eccles, James) (Entered: 04/30/2009)
721 NOTICE by All Defendants re 719 Notice (Other) Exhibit 12 (Attachments: # 1 Exhibit 13, # 2 Exhibit 14, # 3 Exhibit 15, # 4 Exhibit 16, # 5 Exhibit 17, # 6 Exhibit 18, # 7 Exhibit 19, # 8 Exhibit 20, # 9 Exhibit 21, # 10 Exhibit 22, # 11 Exhibit 23, # 12 Exhibit 24, # 13 Exhibit 25, # 14 Exhibit 26, # 15 Exhibit 27, # 16 Exhibit 28, # 17 Exhibit 29, # 18 Exhibit 30)(Eccles, James) (Entered: 04/30/2009)
722 PROCEDURAL ORDER CONCERNING JOINT MOTION FOR AWARD OF INTERIM FEES, COSTS AND EXPENSES TO PLAINTIFFS COUNSEL granting 718 Motion for Attorney Fees. Signed by Judge Richard A. Schell on 5/6/09. (cm, ) (Entered: 05/07/2009)
723 NOTICE by All Defendants Texas Medicaid Medical Transportation Program − Incremental Report IV−March 2009 (CAO) (Eccles, James) (Entered: 05/07/2009)
724

06/05/2009 07/31/2009 07/31/2009
07/31/2009
07/31/2009 07/31/2009 08/11/2009 08/31/2009 09/09/2009

STATUS REPORT re: Notification to the Class by All Defendants. (Eccles, James) Modified on 6/5/2009 (snh, ). (Entered: 06/05/2009)
725 STATUS REPORT corrected re: Notification to the Class by All Defendants. (Eccles, James) (Entered: 06/05/2009)
726 NOTICE by All Defendants of filing Quarterly Monitoring Report−July 2009 (Attachments: # 1 Appendix QMR Report July 2009)(Eccles, James) (Entered: 07/31/2009)
727 NOTICE by All Defendants re 726 Notice (Other) Exhibit List−Exhibits 1 − 12 (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12)(Eccles, James) (Entered: 07/31/2009)
728 NOTICE by All Defendants re 726 Notice (Other) Exhibits 13−22 (Attachments: # 1 Exhibit 14, # 2 Exhibit 15, # 3 Exhibit 16, # 4 Exhibit 17, # 5 Exhibit 18, # 6 Exhibit 19, # 7 Exhibit 20, # 8 Exhibit 21, # 9 Exhibit 22)(Eccles, James) (Entered: 07/31/2009)
729 NOTICE by All Defendants re 726 Notice (Other) Exhibits 23 − 24 (Attachments: # 1 Exhibit 24)(Eccles, James) (Entered: 07/31/2009)
730 NOTICE by All Defendants re 726 Notice (Other) Exhibits 25 − 31 (Attachments: # 1 Exhibit 26, # 2 Exhibit 27, # 3 Exhibit 28, # 4 Exhibit 29, # 5 Exhibit 30, # 6 Exhibit 31)(Eccles, James) (Entered: 07/31/2009)
731 NOTICE by All Defendants Filing Texas Medicaid Medical Transportation Program − Incremental Report V − July 2009 (Eccles, James) (Entered: 08/11/2009)
732 NOTICE by All Plaintiffs Concerning Comments (2008 Interim Fees) (Zinn, Susan) (Entered: 08/31/2009)
733 Joint MOTION for Attorney Fees by All Plaintiffs. (Attachments: # 1***ORDER FILED IN ERROR. PLEASE DISREGARD.*** Text of Proposed Order Order: Interim Attorneys' Fees (2008))(Zinn, Susan) (Additional attachment(s) added on

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 66 of 145

09/14/2009
09/17/2009 09/22/2009
10/02/2009 10/05/2009 10/09/2009 10/21/2009
10/30/2009
10/30/2009 10/30/2009
10/30/2009 11/12/2009 11/16/2009 11/23/2009 12/31/2009 01/07/2010

9/9/2009: # 2 Corrected Text of Proposed Order) (mjc, ). Modified on 9/9/2009 (mjc, ). (Entered: 09/09/2009)
734 NOTICE of Hearing on Motion 733 Joint MOTION for Attorney Fees, case status and when the court can anticipate closure of this case: Motion Hearing set for 10/5/2009 03:00 PM in Ctrm 105 (Plano) before Judge Richard A. Schell. (mjc, ) (Entered: 09/14/2009)
735 First MOTION to Substitute Party Substitute Suehs for Defendant Hawkins by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Substitute Suehs for Defendant Hawkins)(Zinn, Susan) (Entered: 09/17/2009)
736 ORDER granting 735 Motion to Substitute Party. THEREFORE, it is ORDERED that Texas Health and Human Services Commissioner Thomas Suehs, in his official capacity only, is substituted for Defendant Albert Hawkins. Thomas Suehs added. Signed by Judge Richard A. Schell on 9/22/09. (fnt, ) (Entered: 09/22/2009)
737 Additional Attachments to Main Document: 730 Notice (Other).. (Eccles, James) (Entered: 10/02/2009)
738 Minute Entry for proceedings held before Judge Richard A. Schell: Status Conference held on 10/5/2009. (Court Reporter Jerry Kelley.) (bss, ) (Entered: 10/05/2009)
Minute Entry for proceedings held before Judge Richard A. Schell: Telephone Conference held on 10/9/2009. (Court Reporter Jerry Kelley.) (bss, ) (Entered: 10/13/2009)
739 ORDER APPROVING AGREED INTERIM ATTORNEYS FEES, COSTS AND EXPENSES FOR 2008 re: 733 Motion for Attorney Fees. "Defendants are hereby ORDERED to make payment to Plaintiffs counsel no earlier than January 4, 2010 and no later than January 18, 2010." Signed by Judge Richard A. Schell on 10/21/09. (cm, ) (Entered: 10/21/2009)
740 NOTICE by All Defendants DEFENDANTS NOTICE OF FILING QUARTERLY MONITORING REPORT − OCTOBER 2009 (Attachments: # 1 Oct 2009 Frew QMR, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Errata 8, # 10 Exhibit 9)(Eccles, James) (Entered: 10/30/2009)
741 NOTICE by All Defendants re 740 Notice (Other), Notice (Other) Exhibit 10 (Eccles, James) (Entered: 10/30/2009)
742 NOTICE by All Defendants re 740 Notice (Other), Notice (Other) Exhibits 11−25 (Attachments: # 1 Exhibit 12, # 2 Exhibit 13, # 3 Exhibit 14, # 4 Exhibit 15, # 5 Exhibit 16, # 6 Exhibit 17, # 7 Exhibit 18, # 8 Exhibit 19, # 9 Exhibit 20, # 10 Exhibit 21, # 11 Exhibit 22, # 12 Exhibit 23, # 13 Exhibit 24, # 14 Exhibit 25)(Eccles, James) (Entered: 10/30/2009)
743 NOTICE by All Defendants Health Outcome Measures Study 1−7 (Eccles, James) (Entered: 10/30/2009)
744 NOTICE by All Defendants Amendments to Past QMRs−April & July (Attachments: # 1 Attachment 1, # 2 Attachment 2, # 3 Attachment 3)(Eccles, James) (Entered: 11/12/2009)
745 First MOTION Modify 2007 Corrective Action Order (Outreach) by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Joint Motion to Modify Corrective Action Order (Outreach))(Zinn, Susan) (Entered: 11/16/2009)
746 ORDER granting 745 Motion to Modify the Outreach and Informing Corrective Action Order. Signed by Judge Richard A. Schell on 11/23/2009. (pad, ) (Entered: 11/23/2009)
747 NOTICE by All Defendants DENTAL ASSESSMENT OF CHILD DENTAL HEALTH STATUS (Eccles, James) (Entered: 12/31/2009)
748 Joint MOTION FIRST JOINT MOTION CONCERNING PRELIMINARY PROCEDURAL ISSUES: TOLL FREE NUMBERS CORRECTIVE ACTION ORDER by All Defendants. (Attachments: # 1 Exhibit 1, # 2 Text of Proposed Order)(Eccles, James) (Entered: 01/07/2010)

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 67 of 145

01/08/2010
01/15/2010 01/29/2010 01/29/2010 01/29/2010 02/01/2010 02/01/2010 02/08/2010 04/29/2010
04/30/2010 04/30/2010 04/30/2010 04/30/2010
05/11/2010 05/14/2010 05/18/2010

749 ORDER GRANTING FIRST JOINT MOTION CONCERNING PRELIMINARY SCHEDULINGCONCERN: TOLL FREE NUMBERS CORRECTIVE ACTION ORDER granting 748 Motion "The parties must confer shortly after a specified date to determine if further action is needed and, if so, what action should occur." Signed by Judge Richard A. Schell on 1/8/10. (cm, ) (Entered: 01/08/2010)
750 NOTICE by All Defendants PPRI Tx A&M's Final MTP Report (Attachments: # 1 Part 2 of 2)(Eccles, James) (Entered: 01/15/2010)
751 NOTICE by All Defendants of Filing QMR−January 2010 (Attachments: # 1 Quarterly Monthly Report, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8)(Eccles, James) (Entered: 01/29/2010)
752 NOTICE by All Defendants re 751 Notice (Other), Notice (Other) Part 2 of QMR−January 2010 (Attachments: # 1 Exhibit 10, # 2 Exhibit 11, # 3 Exhibit 12, # 4 Exhibit 13, # 5 Exhibit 14, # 6 Exhibit 15, # 7 Exhibit 16, # 8 Exhibit 17, # 9 Exhibit 18)(Eccles, James) (Entered: 01/29/2010)
753 NOTICE by All Defendants re 751 Notice (Other), Notice (Other) Part 3 of QMR−January 2010 (Attachments: # 1 Exhibit 20, # 2 Exhibit 21, # 3 Exhibit 22, # 4 Exhibit 23, # 5 Exhibit 24, # 6 Exhibit 25)(Eccles, James) (Entered: 01/29/2010)
754 NOTICE by All Defendants Health Outcome Measures 8−9 Baseline Study (Attachments: # 1 HOM 8−9 Baseline Study)(Eccles, James) (Entered: 02/01/2010)
755 MOTION FIRST JOINT MOTION TO MODIFY PRELIMINARY PROCEDURAL ISSUES: TOLL FREE NUMBERS CORRECTIVE ACTION ORDER by All Defendants. (Attachments: # 1 Text of Proposed Order)(Eccles, James) (Entered: 02/01/2010)
756 ORDER GRANTING FIRST JOINT MOTION TO MODIFY PRELIMINARY PROCEDURALISSUES: TOLL FREE NUMBERS CORRECTIVE ACTION ORDER granting 755 Motion. Signed by Judge Richard A. Schell on 2/6/10. (cm, ) (Entered: 02/08/2010)
757 Joint MOTION for Attorney Fees by All Plaintiffs. (Attachments: # 1 1. Zinn declaration, # 2 1A. Zinn time, # 3 1B. Zinn expenses, # 4 2. Swanson declaration, # 5 2A. Swanson time, # 6 2B. Swanson expenses, # 7 3. Baxter affidavit, # 8 4. Proposed class notice, # 9 Proposed procedural order)(Swanson, Jane) Modified on 1/13/2011 (cm, ). (Entered: 04/29/2010)
758 NOTICE by All Defendants Notice of Filing Quarterly Monitoring Report − April 2010 (Attachments: # 1 April 2010 QMR, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9)(Eccles, James) (Entered: 04/30/2010)
759 NOTICE by All Defendants re 758 Notice (Other), Notice (Other) April 2010 QMR Exhibit 10 (Eccles, James) (Entered: 04/30/2010)
760 NOTICE by All Defendants re 758 Notice (Other), Notice (Other) April 2010 QMR Exhibit 11 (Eccles, James) (Entered: 04/30/2010)
761 NOTICE by All Defendants re 758 Notice (Other), Notice (Other) April 2010 QMR Exhibits 12−25 (Attachments: # 1 Exhibit 13, # 2 Exhibit 14, # 3 Exhibit 15, # 4 Exhibit 16, # 5 Exhibit 17, # 6 Exhibit 18, # 7 Exhibit 19, # 8 Exhibit 20, # 9 Exhibit 21, # 10 Exhibit 22, # 11 Exhibit 23, # 12 Exhibit 24, # 13 Exhibit 25)(Eccles, James) (Entered: 04/30/2010)
762 NOTICE by All Defendants re 758 Notice (Other), Notice (Other) of filing Amended Exhibit 15 for the April 2010 QMR (Eccles, James) (Entered: 05/11/2010)
763 PROCEDURAL ORDER CONCERNING JOINT MOTION FOR AWARD OF INTERIM FEES, COSTS AND EXPENSES TO PLAINTIFFS ATTORNEYS (2009). Signed by Judge Richard A. Schell on 5/14/10. (fnt, ) (Entered: 05/14/2010)
764 NOTICE of Attorney Appearance by Allison V. Eberhart on behalf of All Defendants, William Archer, Charles E Bell, Bridgett Cook, Deann Friedholm, Don Gilbert, Marina Henderson, Beverly Koops, Richard Ladd, Michael. McKinney, Patti

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 68 of 145

05/21/2010 05/27/2010
05/27/2010 05/27/2010 06/04/2010 06/08/2010 06/10/2010 06/14/2010 06/21/2010 06/23/2010
07/30/2010 07/30/2010

Patterson, Susan Penfield, Eduardo Sanchez, David Smith, Thomas Suehs, Texas Department of Health, Texas Health and Human Services Commission, Linda Wertz (Eberhart, Allison) (Entered: 05/18/2010)
765 NOTICE by All Defendants Medical Checkup Completeness Study Report (Attachments: # 1 Appendix, # 2 Appendix, # 3 Supplement)(Eccles, James) (Entered: 05/21/2010)
766 Opposed MOTION Rule 60(b)(5) Motion to Modify the Health Outcomes Measures and Dental Assessment Corrective Action Order to Eliminate the Requirements that Defendants Implement a Corrective Action Plan and Conduct a Second Dental Assessment re 637 Joint MOTION for Entry of an Agreed Corrective Action Order, 663 Findings of Fact & Conclusions of Law by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Text of Proposed Order)(Eccles, James) (Entered: 05/27/2010)
767 Unopposed MOTION for Leave to File Excess Pages by All Defendants. (Attachments: # 1 Text of Proposed Order)(Eccles, James) (Entered: 05/27/2010)
768 NOTICE by All Defendants DEFENDANTS' REPORT TO THE COURT REGARDING NOTIFICATION TO THE CLASS (Eccles, James) (Entered: 05/27/2010)
769 First MOTION for Extension of Time to File Response/Reply Plaintiffs' Motion for Extension of Time to Respond to Defendants' Rule 60(b)(5) Motion by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Zinn, Susan) (Entered: 06/04/2010)
770 ORDER granting 767 Motion for Leave to File Excess Pages. Signed by Judge Richard A. Schell on 6/7/10. (cm, ) (Entered: 06/08/2010)
771 RESPONSE in Opposition re 769 First MOTION for Extension of Time to File Response/Reply Plaintiffs' Motion for Extension of Time to Respond to Defendants' Rule 60(b)(5) Motion filed by All Defendants. (Attachments: # 1 Text of Proposed Order)(Eccles, James) (Entered: 06/10/2010)
772 REPLY to Response to Motion re 769 First MOTION for Extension of Time to File Response/Reply Plaintiffs' Motion for Extension of Time to Respond to Defendants' Rule 60(b)(5) Motion filed by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 06/14/2010)
773 SUR−REPLY to Reply to Response to Motion re 769 First MOTION for Extension of Time to File Response/Reply Plaintiffs' Motion for Extension of Time to Respond to Defendants' Rule 60(b)(5) Motion filed by All Defendants. (Attachments: # 1 Text of Proposed Order)(Eccles, James) (Entered: 06/21/2010)
774 ORDER granting in part 769 Motion for Extension of Time to File Response/Reply re 766 Opposed MOTION Rule 60(b)(5) Motion to Modify the Health Outcomes Measures and Dental Assessment Corrective Action Order to Eliminate the Requirements that Defendants Implement a Corrective Action Plan and Conduct a Second Dental Assessment re 637 Responses due from Plaintiff by 8/2/2010. July 16, 2010: all discovery by Plaintiffs completed; August 2, 2010: Plaintiffs file their Response to Defendants Rule 60(b) Motion; September 3, 2010: Defendants discovery, if any, completed; September 20, 2010: Defendants file their Reply to Plaintiffs Response to Defendants Rule 60(b)(5) motion; October 6, 2010: Plaintiffs file Sur−Reply. Signed by Judge Richard A. Schell on 6/23/10. (cm, ) (Entered: 06/23/2010)
775 NOTICE by All Defendants of filing QMR July 2010 (Attachments: # 1 QMR July 2010, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3, # 5 Exhibit Exhibit 4, # 6 Exhibit Exhibit 5, # 7 Exhibit Exhibit 6, # 8 Exhibit Exhibit 7, # 9 Exhibit Exhibit 8, # 10 Exhibit Exhibit 9, # 11 Exhibit Exhibit 10, # 12 Exhibit Exhibit 11, # 13 Exhibit Exhibit 12)(Eccles, James) (Entered: 07/30/2010)
776 Additional Attachments to Main Document: 775 Notice (Other), Notice (Other).. (Attachments: # 1 Exhibit Exhibit 14, # 2 Exhibit Exhibit 15, # 3 Exhibit Exhibit 16, # 4 Exhibit Exhibit 17, # 5 Exhibit Exhibit 18, # 6 Exhibit Exhibit 19, # 7 Exhibit Exhibit 20, # 8 Exhibit Exhibit 21)(Eccles, James) (Entered: 07/30/2010)

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 69 of 145

07/30/2010 07/30/2010 08/02/2010
08/02/2010
08/02/2010 08/02/2010
08/02/2010 08/02/2010 08/05/2010

777 Additional Attachments to Main Document: 775 Notice (Other), Notice (Other).. (Attachments: # 1 Exhibit Exhibit 23, # 2 Exhibit Exhibit 24, # 3 Exhibit Exhibit 25, # 4 Exhibit Exhibit 26, # 5 Exhibit Exhibit 27)(Eccles, James) (Entered: 07/30/2010)
778 Additional Attachments to Main Document: 775 Notice (Other), Notice (Other).. (Attachments: # 1 Exhibit Exhibit 29, # 2 Exhibit Exhibit 30, # 3 Exhibit Exhibit 31, # 4 Exhibit Exhibit 32)(Eccles, James) (Entered: 07/30/2010)
779 ***DISREGARD, MISTAKE IN DOCUMENT, WILL BE REFILED BY ATTORNEY*** RESPONSE in Opposition re 766 Opposed MOTION Rule 60(b)(5) Motion to Modify the Health Outcomes Measures and Dental Assessment Corrective Action Order to Eliminate the Requirements that Defendants Implement a Corrective Action Plan and Conduct a Second Dental Assessment re 637 JoiOpposed MOTION Rule 60(b)(5) Motion to Modify the Health Outcomes Measures and Dental Assessment Corrective Action Order to Eliminate the Requirements that Defendants Implement a Corrective Action Plan and Conduct a Second Dental Assessment re 637 JoiOpposed MOTION Rule 60(b)(5) Motion to Modify the Health Outcomes Measures and Dental Assessment Corrective Action Order to Eliminate the Requirements that Defendants Implement a Corrective Action Plan and Conduct a Second Dental Assessment re 637 Joi filed by All Plaintiffs. (Zinn, Susan) Modified on 8/2/2010 (lhj, ). (Entered: 08/02/2010)
780 RESPONSE in Opposition re 766 Opposed MOTION Rule 60(b)(5) Motion to Modify the Health Outcomes Measures and Dental Assessment Corrective Action Order to Eliminate the Requirements that Defendants Implement a Corrective Action Plan and Conduct a Second Dental Assessment re 637 JoiOpposed MOTION Rule 60(b)(5) Motion to Modify the Health Outcomes Measures and Dental Assessment Corrective Action Order to Eliminate the Requirements that Defendants Implement a Corrective Action Plan and Conduct a Second Dental Assessment re 637 JoiOpposed MOTION Rule 60(b)(5) Motion to Modify the Health Outcomes Measures and Dental Assessment Corrective Action Order to Eliminate the Requirements that Defendants Implement a Corrective Action Plan and Conduct a Second Dental Assessment re 637 Joi filed by All Plaintiffs. (Attachments: # 1 Exhibit EX 7, # 2 Exhibit EX 8, # 3 Exhibit EX 9, # 4 Exhibit EX 10, # 5 Exhibit EX 11, # 6 Exhibit EX 12, # 7 Exhibit EX 13, # 8 Exhibit EX 14, # 9 Exhibit EX 15, # 10 Exhibit EX 16, # 11 Exhibit EX 17, # 12 Exhibit EX 18, # 13 Exhibit EX 19, # 14 Exhibit EX 20, # 15 Exhibit EX 21, # 16 Exhibit EX 22, # 17 Text of Proposed Order)(Zinn, Susan) (Entered: 08/02/2010)
781 First MOTION for Leave to File Excess Pages by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Zinn, Susan) (Entered: 08/02/2010)
782 RESPONSE in Opposition re 766 Opposed MOTION Rule 60(b)(5) Motion to Modify the Health Outcomes Measures and Dental Assessment Corrective Action Order to Eliminate the Requirements that Defendants Implement a Corrective Action Plan and Conduct a Second Dental Assessment re 637 JoiOpposed MOTION Rule 60(b)(5) Motion to Modify the Health Outcomes Measures and Dental Assessment Corrective Action Order to Eliminate the Requirements that Defendants Implement a Corrective Action Plan and Conduct a Second Dental Assessment re 637 JoiOpposed MOTION Rule 60(b)(5) Motion to Modify the Health Outcomes Measures and Dental Assessment Corrective Action Order to Eliminate the Requirements that Defendants Implement a Corrective Action Plan and Conduct a Second Dental Assessment re 637 Joi (replaces withdrawn docket 779 filed by All Plaintiffs. (Attachments: # 1 Exhibit Exhibit list, # 2 Exhibit EX 1, # 3 Exhibit EX 2, # 4 Exhibit EX 3, # 5 Exhibit EX 4, # 6 Exhibit EX 5)(Zinn, Susan) (Entered: 08/02/2010)
783 ORDER re: Discovery to be provided by Defendants to Plaintiffs by 9/3/2010. Signed by Judge Richard A. Schell on 8/2/10. (cm, ) (Entered: 08/02/2010)
Minute Entry for proceedings held before Judge Richard A. Schell: Telephone Conference held on 8/2/2010. (Court Reporter Lori Barnett.) (bss, ) (Entered: 08/02/2010)
784 ORDER granting 781 Motion for Leave to File Excess Pages. Signed by Judge Richard A. Schell on 8/5/10. (cm, ) (Entered: 08/05/2010)

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 70 of 145

08/30/2010 09/02/2010 09/20/2010
09/20/2010 09/21/2010 09/30/2010 09/30/2010 10/03/2010
10/04/2010

785 NOTICE by All Plaintiffs re 763 Order Notice of Class Members' Comments, Interim Fees,Costs and Expenses for 2009 (Zinn, Susan) (Additional attachment(s) added on 9/2/2010: # 1 Class Member's Response) (mll, ). (Entered: 08/30/2010)
786 REDACTED LETTER received in Tyler Clerk's Office from Plaintiffs' attorney in response to 763 Order by CLASS MEMBERS. (Attachments: # 1 Cover Letter/Envelope)(mjc, ) (Entered: 09/02/2010)
787 REPLY to Response to Motion re 766 Opposed MOTION Rule 60(b)(5) Motion to Modify the Health Outcomes Measures and Dental Assessment Corrective Action Order to Eliminate the Requirements that Defendants Implement a Corrective Action Plan and Conduct a Second Dental Assessment re 637 JoiOpposed MOTION Rule 60(b)(5) Motion to Modify the Health Outcomes Measures and Dental Assessment Corrective Action Order to Eliminate the Requirements that Defendants Implement a Corrective Action Plan and Conduct a Second Dental Assessment re 637 JoiOpposed MOTION Rule 60(b)(5) Motion to Modify the Health Outcomes Measures and Dental Assessment Corrective Action Order to Eliminate the Requirements that Defendants Implement a Corrective Action Plan and Conduct a Second Dental Assessment re 637 Joi filed by All Defendants. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12)(Eccles, James) (Entered: 09/20/2010)
788 Unopposed MOTION for Leave to File Reply Brief in Excess of Five Pages by All Defendants. (Attachments: # 1 Text of Proposed Order)(Eccles, James) (Entered: 09/20/2010)
789 Opposed MOTION to Strike Portions of the Testimony of Drs. Seale, Kennedy, and Nabulsi by All Defendants. Responses due by 10/5/2010 (Attachments: # 1 Exhibit 1, # 2 Text of Proposed Order)(Eccles, James) (Entered: 09/21/2010)
790 ORDER granting 788 Motion for Leave to File. Defendants Unopposed Motion for Leave to File Motion Exceeding Five Pages is hereby GRANTED. Signed by Judge Richard A. Schell on 9/29/10. (cm, ) (Entered: 09/30/2010)
791 Joint MOTION for Attorney Fees for 2009 by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Interim Attorneys Fees for 2009)(Zinn, Susan) (Entered: 09/30/2010)
792 Opposed MOTION for Extension of Time to File Response/Reply as to 780 Response in Opposition to Motion,,,, 774 Order on Motion for Extension of Time to File Response/Reply,,, 766 Opposed MOTION Rule 60(b)(5) Motion to Modify the Health Outcomes Measures and Dental Assessment Corrective Action Order to Eliminate the Requirements that Defendants Implement a Corrective Action Plan and Conduct a Second Dental Assessment re 637 JoiOpposed MOTION Rule 60(b)(5) Motion to Modify the Health Outcomes Measures and Dental Assessment Corrective Action Order to Eliminate the Requirements that Defendants Implement a Corrective Action Plan and Conduct a Second Dental Assessment re 637 JoiOpposed MOTION Rule 60(b)(5) Motion to Modify the Health Outcomes Measures and Dental Assessment Corrective Action Order to Eliminate the Requirements that Defendants Implement a Corrective Action Plan and Conduct a Second Dental Assessment re 637 Joi, 787 Reply to Response to Motion,,,, 789 Opposed MOTION to Strike Portions of the Testimony of Drs. Seale, Kennedy, and Nabulsi, 783 Order, 782 Response in Opposition to Motion,,,, by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Order for Extension of Time (Dental Motion))(Zinn, Susan) (Entered: 10/03/2010)
793 RESPONSE to Motion re 792 Opposed MOTION for Extension of Time to File Response/Reply as to 780 Response in Opposition to Motion,,,, 774 Order on Motion for Extension of Time to File Response/Reply,,, 766 Opposed MOTION Rule 60(b)(5) Motion to Modify the Health OutcomOpposed MOTION for Extension of Time to File Response/Reply as to 780 Response in Opposition to Motion,,,, 774 Order on Motion for Extension of Time to File Response/Reply,,, 766 Opposed MOTION Rule 60(b)(5) Motion to Modify the Health OutcomOpposed MOTION for Extension of Time to File Response/Reply as to 780 Response in Opposition to Motion,,,, 774 Order on Motion for Extension of Time to File Response/Reply,,, 766 Opposed MOTION Rule 60(b)(5) Motion to Modify the Health OutcomOpposed MOTION for Extension of Time to File Response/Reply as to 780 Response in Opposition to Motion,,,, 774 Order on Motion for Extension of Time to File Response/Reply,,, 766 Opposed MOTION Rule 60(b)(5) Motion to Modify the Health OutcomOpposed MOTION for Extension of Time to File

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 71 of 145

10/05/2010
10/05/2010 10/19/2010
10/19/2010 10/19/2010 10/29/2010

Response/Reply as to 780 Response in Opposition to Motion,,,, 774 Order on Motion for Extension of Time to File Response/Reply,,, 766 Opposed MOTION Rule 60(b)(5) Motion to Modify the Health OutcomOpposed MOTION for Extension of Time to File Response/Reply as to 780 Response in Opposition to Motion,,,, 774 Order on Motion for Extension of Time to File Response/Reply,,, 766 Opposed MOTION Rule 60(b)(5) Motion to Modify the Health Outcom DEFENDANTS RESPONSE TO PLAINTIFFS OPPOSED MOTION FOR EXTENSION OF TIME TO FILE SUR−REPLY TO DEFENDANTS RULE 60(B)(5) DENTAL MOTION, DOCKET NO. 766, AND TO RESPOND TO DEFENDANTS MOTION TO STRIKE, DOCKET NO. 789 [DOCKET NO. 792] filed by All Defendants. (Attachments: # 1 Text of Proposed Order)(Eccles, James) (Entered: 10/04/2010)
794 REPLY to Response to Motion re 792 Opposed MOTION for Extension of Time to File Response/Reply as to 780 Response in Opposition to Motion,,,, 774 Order on Motion for Extension of Time to File Response/Reply,,, 766 Opposed MOTION Rule 60(b)(5) Motion to Modify the Health OutcomOpposed MOTION for Extension of Time to File Response/Reply as to 780 Response in Opposition to Motion,,,, 774 Order on Motion for Extension of Time to File Response/Reply,,, 766 Opposed MOTION Rule 60(b)(5) Motion to Modify the Health OutcomOpposed MOTION for Extension of Time to File Response/Reply as to 780 Response in Opposition to Motion,,,, 774 Order on Motion for Extension of Time to File Response/Reply,,, 766 Opposed MOTION Rule 60(b)(5) Motion to Modify the Health OutcomOpposed MOTION for Extension of Time to File Response/Reply as to 780 Response in Opposition to Motion,,,, 774 Order on Motion for Extension of Time to File Response/Reply,,, 766 Opposed MOTION Rule 60(b)(5) Motion to Modify the Health OutcomOpposed MOTION for Extension of Time to File Response/Reply as to 780 Response in Opposition to Motion,,,, 774 Order on Motion for Extension of Time to File Response/Reply,,, 766 Opposed MOTION Rule 60(b)(5) Motion to Modify the Health OutcomOpposed MOTION for Extension of Time to File Response/Reply as to 780 Response in Opposition to Motion,,,, 774 Order on Motion for Extension of Time to File Response/Reply,,, 766 Opposed MOTION Rule 60(b)(5) Motion to Modify the Health Outcom filed by All Plaintiffs. (Zinn, Susan) (Entered: 10/05/2010)
795 ORDER re 766 Opposed MOTION Rule 60(b)(5) filed by All Defendants. Signed by Judge Richard A. Schell on 10/5/10. (cm, ) (Entered: 10/05/2010)
796 SUR−REPLY to Reply to Response to Motion re 766 Opposed MOTION Rule 60(b)(5) Motion to Modify the Health Outcomes Measures and Dental Assessment Corrective Action Order to Eliminate the Requirements that Defendants Implement a Corrective Action Plan and Conduct a Second Dental Assessment re 637 JoiOpposed MOTION Rule 60(b)(5) Motion to Modify the Health Outcomes Measures and Dental Assessment Corrective Action Order to Eliminate the Requirements that Defendants Implement a Corrective Action Plan and Conduct a Second Dental Assessment re 637 JoiOpposed MOTION Rule 60(b)(5) Motion to Modify the Health Outcomes Measures and Dental Assessment Corrective Action Order to Eliminate the Requirements that Defendants Implement a Corrective Action Plan and Conduct a Second Dental Assessment re 637 Joi filed by All Plaintiffs. (Attachments: # 1 Exhibit 1, Dr Seale, # 2 Exhibit 2, Dr Kennedy, # 3 Exhibit 3, Oral Health in Texas, # 4 Exhibit 4, Oral Health for School Nurses, # 5 Exhibit 5, Examiner Instructions, # 6 Exhibit 6, 2009 Utilization, # 7 Exhibit 7, Dental Statistics, # 8 Exhibit 8, Active Dentists, # 9 Exhibit 9, Court ordered tasks)(Zinn, Susan) (Entered: 10/19/2010)
797 First MOTION for Leave to File Excess Pages (Dental Sur−Reply) by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Zinn, Susan) (Entered: 10/19/2010)
798 RESPONSE in Opposition re 789 Opposed MOTION to Strike Portions of the Testimony of Drs. Seale, Kennedy, and Nabulsi filed by All Plaintiffs. (Attachments: # 1 Exhibit Dr. Nabulsi cross−exam responses, # 2 Text of Proposed Order)(Swanson, Jane) (Entered: 10/19/2010)
799 REPLY to Response to Motion re 789 Opposed MOTION to Strike Portions of the Testimony of Drs. Seale, Kennedy, and Nabulsi DEFENDANTS REPLY REGARDING ITS MOTION TO STRIKE PORTIONS OF PLAINTIFFS WITNESSES [Doc. #789] filed by All Defendants. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Eccles, James) (Entered: 10/29/2010)

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 72 of 145

11/01/2010 11/01/2010 11/01/2010 11/01/2010 11/01/2010
11/08/2010
11/18/2010 11/22/2010

800 NOTICE by All Defendants of filing Quaterly Monitoring Report October 2010 (Attachments: # 1 Appendix Report, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3, # 5 Exhibit Exhibit 4a)(Eccles, James) (Entered: 11/01/2010)
801 Additional Attachments to Main Document: 800 Notice (Other).. (Attachments: # 1 Exhibit Exhibit 5a)(Eccles, James) (Entered: 11/01/2010)
802 Additional Attachments to Main Document: 800 Notice (Other).. (Attachments: # 1 Exhibit Exhibit 5c)(Eccles, James) (Entered: 11/01/2010)
803 Additional Attachments to Main Document: 800 Notice (Other).. (Attachments: # 1 Exhibit Exhibit 7, # 2 Exhibit Exhibit 8, # 3 Exhibit Exhibit 9a, # 4 Exhibit Exhibit 9b)(Eccles, James) (Entered: 11/01/2010)
804 Additional Attachments to Main Document: 800 Notice (Other).. (Attachments: # 1 Exhibit Exhibit 11, # 2 Exhibit Exhibit 12, # 3 Exhibit Exhibit 13, # 4 Exhibit Exhibit 14, # 5 Exhibit Exhibit 15, # 6 Exhibit Exhibit 16, # 7 Exhibit Exhibit 17, # 8 Exhibit Exhibit 18, # 9 Exhibit Exhibit 19, # 10 Exhibit Exhibit 20, # 11 Exhibit Exhibit 21, # 12 Exhibit Exhibit 22, # 13 Exhibit Exhibit 23)(Eccles, James) (Entered: 11/01/2010)
805 SUR−REPLY to Reply to Response to Motion re 789 Opposed MOTION to Strike Portions of the Testimony of Drs. Seale, Kennedy, and Nabulsi filed by All Plaintiffs. (Attachments: # 1 Exhibit Dr. Kennedy 2nd Supp. Declaration)(Swanson, Jane) (Entered: 11/08/2010)
806 NOTICE by All Defendants DEFENDANTS ADVISORY REGARDING ORAL HEARING (Eccles, James) (Entered: 11/18/2010)
807 ***FILED IN ERROR. TO BE REFILED. PLEASE IGNORE.***

11/22/2010

NOTICE by All Plaintiffs re 766 Opposed MOTION Rule 60(b)(5) Motion to Modify the Health Outcomes Measures and Dental Assessment Corrective Action Order to Eliminate the Requirements that Defendants Implement a Corrective Action Plan and Conduct a Second Dental Assessment re 637 JoiOpposed MOTION Rule 60(b)(5) Motion to Modify the Health Outcomes Measures and Dental Assessment Corrective Action Order to Eliminate the Requirements that Defendants Implement a Corrective Action Plan and Conduct a Second Dental Assessment re 637 JoiOpposed MOTION Rule 60(b)(5) Motion to Modify the Health Outcomes Measures and Dental Assessment Corrective Action Order to Eliminate the Requirements that Defendants Implement a Corrective Action Plan and Conduct a Second Dental Assessment re 637 Joi (Zinn, Susan) Modified on 11/22/2010 (cm, ). (Entered: 11/22/2010)
***FILED IN ERROR. Document # 807, NOTICE by All Plaintiffs to be Refiled due to wrong document uploaded. PLEASE IGNORE.***

11/22/2010
12/31/2010 01/13/2011 01/13/2011

(cm, ) (Entered: 11/22/2010)
808 NOTICE by All Plaintiffs re 766 Opposed MOTION Rule 60(b)(5) Motion to Modify the Health Outcomes Measures and Dental Assessment Corrective Action Order to Eliminate the Requirements that Defendants Implement a Corrective Action Plan and Conduct a Second Dental Assessment re 637 JoiOpposed MOTION Rule 60(b)(5) Motion to Modify the Health Outcomes Measures and Dental Assessment Corrective Action Order to Eliminate the Requirements that Defendants Implement a Corrective Action Plan and Conduct a Second Dental Assessment re 637 JoiOpposed MOTION Rule 60(b)(5) Motion to Modify the Health Outcomes Measures and Dental Assessment Corrective Action Order to Eliminate the Requirements that Defendants Implement a Corrective Action Plan and Conduct a Second Dental Assessment re 637 Joi (Zinn, Susan) (Entered: 11/22/2010)
809 Unopposed MOTION Modify Consent Decree: Check Up Letters by All Defendants. (Attachments: # 1 Text of Proposed Order)(Eccles, James) (Entered: 12/31/2010)
810 ORDER granting 809 Motion to Modify Consent Decree: Checkup Letters. Signed by Judge Richard A. Schell on 1/12/11. (cm, ) (Entered: 01/13/2011)
811 ORDER granting 797 Motion for Leave to File Excess Pages. Signed by Judge Richard A. Schell on 1/12/11. (cm, ) (Entered: 01/13/2011)

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 73 of 145

01/13/2011
01/31/2011 01/31/2011 01/31/2011 01/31/2011 01/31/2011 02/10/2011 03/08/2011 03/25/2011 03/30/2011 03/30/2011
04/20/2011 04/29/2011
05/02/2011

812 ORDER APPROVING AGREED INTERIM ATTORNEYS FEES, COSTS AND EXPENSES FOR 2009 granting 757 Motion for Attorney Fees; granting 791 Motion for Attorney Fees. Defendants are hereby ORDERED to make payment to Plaintiffs counsel no later than January 31, 2011. Signed by Judge Richard A. Schell on 1/12/11. (cm, ) (Entered: 01/13/2011)
813 NOTICE by All Defendants of filing QMR January 2011 (Attachments: # 1 Appendix QMR January 2011, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 3A)(Eccles, James) (Entered: 01/31/2011)
814 NOTICE by All Defendants re 813 Notice (Other) Exhibits to QMR January 2011 (Attachments: # 1 Exhibit 5, # 2 Exhibit 6, # 3 Exhibit 7, # 4 Exhibit 8, # 5 Exhibit 9, # 6 Exhibit 10)(Eccles, James) (Entered: 01/31/2011)
815 NOTICE by All Defendants re 813 Notice (Other) Exhibits to QMR January 2011 (Attachments: # 1 Exhibit 11A, # 2 Exhibit 12, # 3 Exhibit 13, # 4 Exhibit 14, # 5 Exhibit 15, # 6 Exhibit 16, # 7 Exhibit 17, # 8 Exhibit 18)(Eccles, James) (Entered: 01/31/2011)
816 NOTICE by All Defendants re 813 Notice (Other) Exhibits to QMR January 2011 (Attachments: # 1 Exhibit 20, # 2 Exhibit 21, # 3 Exhibit 22)(Eccles, James) (Entered: 01/31/2011)
817 NOTICE by All Defendants re 813 Notice (Other) Exhibits to QMR January 2011 (Attachments: # 1 Exhibit 24, # 2 Exhibit 25A)(Eccles, James) (Entered: 01/31/2011)
818 NOTICE by All Defendants re 813 Notice (Other) of filing Amended Exhibit 23 Provider Access Report for the January 2011 QMR (Eccles, James) (Entered: 02/10/2011)
819 ORDER DENYING DEFENDANTS REQUEST FOR ORAL HEARING re 806 Notice (Other) filed by All Defendants. Signed by Judge Richard A. Schell on 3/8/11. (cm, ) (Entered: 03/08/2011)
820 Unopposed MOTION TO MODIFY CONSENT DECREE: MEDICAID IDENTIFICATION CARDS by All Defendants. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5)(Eccles, James) (Entered: 03/25/2011)
821 ORDER granting 820 Motion to Modify Consent Decree: Medicaid Identification Cards. Signed by Judge Richard A. Schell on 3/29/2011. (pad, ) (Entered: 03/30/2011)
822 ORDER denying 766 Motion Rule 60(B)(5) to Modify the Health Outcomes Measures and Dental Assessment Corrective Action Order to Eliminate the Requirements that Defendants Implement a Corrective Action Plan and Conduct a Second Dental Assessment; denying 789 Motion to Strike Portion of the Testimony of Drs. Seale, Kennedy, and Nabulsi. Signed by Judge Richard A. Schell on 3/30/2011. (pad, ) (Entered: 03/30/2011)
823 First MOTION extension of time to negotiate re 637 Joint MOTION for Entry of an Agreed Corrective Action Order by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Zinn, Susan) (Entered: 04/20/2011)
824 Unopposed MOTION for Attorney Fees by All Plaintiffs. (Attachments: # 1 Exhibit EX 1, Zinn declaration, # 2 Exhibit EX 1A, Zinn time records, # 3 Exhibit EX 1B, Zinn cost and expense records, # 4 Exhibit EX 2, Swanson declaration, # 5 Exhibit EX 2A, Swanson time records, # 6 Exhibit EX 2B, Swanson cost and expense records, # 7 Exhibit EX 3, Baxter declaration, # 8 Exhibit EX 4, Proposed class notice, # 9 Text of Proposed Order Proposed Procedural Order, Plaintiffs' 2010 Interim Fees, Costs and Expenses)(Zinn, Susan) Modified on 1/7/2013 (cm, ). (Entered: 04/29/2011)
825 NOTICE by All Defendants DEFENDANTS NOTICE OF FILING QUARTERLY MONITORING REPORT − APRIL 2011 (Attachments: # 1 QMR April 2011, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15)(Eccles, James) (Entered: 05/02/2011)

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 74 of 145

05/02/2011
06/27/2011 08/01/2011 08/01/2011

826 Additional Attachments to Main Document: 825 Notice (Other), Notice (Other).. (Attachments: # 1 Exhibit 17, # 2 Exhibit 18, # 3 Exhibit 19, # 4 Exhibit 20, # 5 Exhibit 21, # 6 Exhibit 22, # 7 Exhibit 23, # 8 Exhibit 24, # 9 Exhibit 25, # 10 Exhibit 26, # 11 Exhibit 27, # 12 Exhibit 28, # 13 Exhibit 29)(Eccles, James) (Entered: 05/02/2011)
827 NOTICE by All Defendants MEDICAL TRANSPORTATION PROGRAM 2ND STUDY (Eccles, James) (Entered: 06/27/2011)
828 NOTICE by All Defendants of filing QMR − July 2011 (Attachments: # 1 Appendix QMR − July 2011, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5)(Eccles, James) (Entered: 08/01/2011)
829 ***PLEASE DISREGARD − NOTICE OF DOCKET CORRECTION ENTERED − ATTORNEY TO REFILE***

08/01/2011

NOTICE by All Defendants re 828 Notice (Other) Exhibits to QMR − July 2011 (Attachments: # 1 Exhibit 7, # 2 Exhibit 8, # 3 Exhibit 9, # 4 Exhibit 10, # 5 Exhibit 11)(Eccles, James) Modified on 8/4/2011 (baf, ). (Entered: 08/01/2011)
830 ***PLEASE DISREGARD − NOTICE OF DOCKET CORRECTION ENTERED − ATTORNEY TO REFILE***

08/01/2011

NOTICE by All Defendants re 828 Notice (Other) Exhibits to QMR − July 2011 (Attachments: # 1 Exhibit 13, # 2 Exhibit 14, # 3 Exhibit 15, # 4 Exhibit 16, # 5 Exhibit 17, # 6 Exhibit 18, # 7 Exhibit 19, # 8 Exhibit 20)(Eccles, James) Modified on 8/4/2011 (baf, ). (Entered: 08/01/2011)
831 ***PLEASE DISREGARD − NOTICE OF DOCKET CORRECTION ENTERED − ATTORNEY TO REFILE***

08/04/2011

NOTICE by All Defendants re 828 Notice (Other) Exhibits to QMR − July 2011 (Attachments: # 1 Exhibit 22, # 2 Exhibit 23, # 3 Exhibit 24, # 4 Exhibit 25, # 5 Exhibit 26)(Eccles, James) Modified on 8/4/2011 (baf, ). (Entered: 08/01/2011)
832 ***CORRECTED DOCUMENT REPLACES DOCUMENT 829 WHICH WAS FILED IN ERROR***

08/04/2011

Additional Attachments to Main Document: 828 Notice (Other).. (Attachments: # 1 Exhibit 7, # 2 Exhibit 8, # 3 Exhibit 9, # 4 Exhibit 10, # 5 Exhibit 11, # 6 Exhibit 12)(Eccles, James) Modified on 8/4/2011 (baf, ). (Entered: 08/04/2011)
833 ***CORRECTED DOCUMENT REPLACES DOCUMENT 830 WHICH WAS FILED IN ERROR***

08/04/2011

Additional Attachments to Main Document: 828 Notice (Other).. (Attachments: # 1 Exhibit 13, # 2 Exhibit 14, # 3 Exhibit 15, # 4 Exhibit 16, # 5 Exhibit 17, # 6 Exhibit 18, # 7 Exhibit 19, # 8 Exhibit 20)(Eccles, James) Modified on 8/4/2011 (baf, ). (Entered: 08/04/2011)
834 ***CORRECTED DOCUMENT REPLACES DOCUMENT 831 WHICH WAS FILED IN ERROR***

08/04/2011

Additional Attachments to Main Document: 828 Notice (Other).. (Attachments: # 1 Exhibit 21, # 2 Exhibit 22, # 3 Exhibit 23, # 4 Exhibit 24, # 5 Exhibit 25, # 6 Exhibit 26)(Eccles, James) Modified on 8/4/2011 (baf, ). (Entered: 08/04/2011)
***FILED IN ERROR − PLEASE DISREGARD − INCORRECT DOCKET EVENT USED − ATTORNEY TO REFILE. Document # 829, NOTICE. PLEASE IGNORE.***

08/04/2011

(baf, ) (Entered: 08/04/2011)
***FILED IN ERROR − PLEASE DISREGARD − INCORRECT DOCKET EVENT USED − ATTORNEY TO REFILE. Document # 830, NOTICE. PLEASE IGNORE.***

(baf, ) (Entered: 08/04/2011)

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 75 of 145

08/04/2011

***FILED IN ERROR − PLEASE DISREGARD − INCORRECT DOCKET EVENT USED − ATTORNEY TO REFILE. Document # 831, NOTICE. PLEASE IGNORE.***

08/18/2011 10/31/2011 10/31/2011 10/31/2011 10/31/2011 11/03/2011 11/10/2011 11/11/2011 11/21/2011 11/21/2011 11/21/2011
11/21/2011
11/21/2011

(baf, ) (Entered: 08/04/2011)
835 NOTICE by All Defendants Defendants' Action Plan for Case Management for Children and Pregnant Women (Eccles, James) (Entered: 08/18/2011)
836 NOTICE by All Defendants of Filing Quarterly Monitoring Report − October 2011 (Attachments: # 1 Appendix, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5)(Eccles, James) (Entered: 10/31/2011)
837 Additional Attachments to Main Document: 836 Notice (Other).. (Attachments: # 1 Exhibit 7, # 2 Exhibit 8, # 3 Exhibit 9, # 4 Exhibit 10, # 5 Exhibit 11, # 6 Exhibit 12)(Eccles, James) (Entered: 10/31/2011)
838 Additional Attachments to Main Document: 836 Notice (Other).. (Attachments: # 1 Exhibit 14, # 2 Exhibit 15, # 3 Exhibit 16, # 4 Exhibit 17, # 5 Exhibit 18, # 6 Exhibit 19, # 7 Exhibit 20)(Eccles, James) (Entered: 10/31/2011)
839 Additional Attachments to Main Document: 836 Notice (Other).. (Attachments: # 1 Exhibit B, # 2 Exhibit C, # 3 Exhibit D, # 4 Exhibit E, # 5 Exhibit F, # 6 Exhibit G, # 7 Exhibit H, # 8 Exhibit I, # 9 Exhibit J, # 10 Exhibit K, # 11 Exhibit L, # 12 Exhibit M, # 13 Exhibit N)(Eccles, James) (Entered: 10/31/2011)
840 Opposed MOTION for Extension of Time to File Motion to Enforce/Extend Provider Supply CAO by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 11/03/2011)
841 RESPONSE to Motion re 840 Opposed MOTION for Extension of Time to File Motion to Enforce/Extend Provider Supply CAO filed by All Defendants. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Text of Proposed Order)(Eccles, James) (Entered: 11/10/2011)
842 REPLY to Response to Motion re 840 Opposed MOTION for Extension of Time to File Motion to Enforce/Extend Provider Supply CAO filed by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 11/11/2011)
843 ORDER granting 840 Motion for Extension of Time to File. Plaintiffs are GRANTED until January 31, 2012 to file their Motionto Enforce the Provider Supply Corrective Action Order. Signed by Judge Richard A. Schell on 11/18/11. (cm, ) (Entered: 11/21/2011)
844 Unopposed MOTION for Leave to File Excess Pages by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 11/21/2011)
845 MOTION Enforce and Extend Provider Supply CAO re 637 Joint MOTION for Entry of an Agreed Corrective Action Order by All Plaintiffs. (Attachments: # 1 Exhibit Flores Declaration, # 2 Exhibit Flores Curriculum Vitae, # 3 Exhibit Lukefahr Declaration, # 4 Exhibit Lukefahr Curriculum Vitae, # 5 Exhibit FY2009 Major Assessment of Medicaid Provider Base, # 6 Exhibit 1st Interim Assessment Medicaid Provider Base, # 7 Exhibit Excerpt from FY2010 2nd Interim Assessment, # 8 Exhibit CMS 416s, # 9 Exhibit THSteps Dental Report, # 10 Exhibit 10−10−11 Letter from Defends' Atty)(Swanson, Jane) (Entered: 11/21/2011)
846 Additional Attachments to Main Document:. (Attachments: # 1 Exhibit Excerpt from June 2011 Provider Relations Report, # 2 Exhibit 6−27−11 Letter from Defends' atty, # 3 Exhibit 5−2−11 Letter from Defends' Atty, # 4 Exhibit Excerpt from Health Professions Center Report, # 5 Exhibit Numbers of Dentists (from Health Professions Resource Center), # 6 Exhibit Defends' Definition of Medicaid Provider Shortage Area, # 7 Exhibit Excerpt from April 2011 QMR, # 8 Exhibit TMA Survey Excerpts, # 9 Exhibit Title V Application Excerpt, # 10 Exhibit Title V Needs Assessment Excerpt)(Swanson, Jane) (Entered: 11/21/2011)
847 Additional Attachments to Main Document:. (Attachments: # 1 Exhibit Excerpt from Provider Relations Report, # 2 Exhibit Excerpt from March, 2011 Provider Relations Report, # 3 Exhibit FY2007 CAHPS Survey Excerpt, # 4 Exhibit Schedule for EQRO

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12/22/2011 12/27/2011 12/27/2011
12/29/2011

Reports, # 5 Exhibit 8−23−11 Letter from Defends' Atty, # 6 Exhibit Quality of Care Report Excerpt, # 7 Exhibit No Care Study Excerpt, # 8 Exhibit Strategic Initiative Summary, # 9 Text of Proposed Order)(Swanson, Jane) (Entered: 11/21/2011)
848 MOTION FOR PROTECTION FROM PLAINTIFFS DISCOVERY REQUESTS RELATING TO PLAINTIFFS MOTION TO ENFORCE AND EXTEND PROVIDER SUPPLY CORRECTIVE ACTION ORDER; DEFENDANTS REQUEST FOR A STATUS CONFERENCE re 845 MOTION Enforce and Extend Provider Supply CAO re 637 Joint MOTION for Entry of an Agreed Corrective Action Order MOTION Enforce and Extend Provider Supply CAO re 637 Joint MOTION for Entry of an Agreed Corrective Action Order MOTION Enforce and Extend Provider Supply CAO re 637 Joint MOTION for Entry of an Agreed Corrective Action Order by All Defendants. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2A, # 3 Exhibit 2B, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8)(Eccles, James) (Entered: 12/22/2011)
849 MOTION to determine discovery issues and set timetable for further court filings re 845 MOTION Enforce and Extend Provider Supply CAO re 637 Joint MOTION for Entry of an Agreed Corrective Action Order MOTION Enforce and Extend Provider Supply CAO re 637 Joint MOTION for Entry of an Agreed Corrective Action Order MOTION Enforce and Extend Provider Supply CAO re 637 Joint MOTION for Entry of an Agreed Corrective Action Order by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 12/27/2011)
850 Additional Attachments to Main Document: 848 MOTION FOR PROTECTION FROM PLAINTIFFS DISCOVERY REQUESTS RELATING TO PLAINTIFFS MOTION TO ENFORCE AND EXTEND PROVIDER SUPPLY CORRECTIVE ACTION ORDER; DEFENDANTS REQUEST FOR A STATUS CONFERENCE re 845 MOTION Enforce and Extend Provider Supply CAO re MOTION FOR PROTECTION FROM PLAINTIFFS DISCOVERY REQUESTS RELATING TO PLAINTIFFS MOTION TO ENFORCE AND EXTEND PROVIDER SUPPLY CORRECTIVE ACTION ORDER; DEFENDANTS REQUEST FOR A STATUS CONFERENCE re 845 MOTION Enforce and Extend Provider Supply CAO re MOTION FOR PROTECTION FROM PLAINTIFFS DISCOVERY REQUESTS RELATING TO PLAINTIFFS MOTION TO ENFORCE AND EXTEND PROVIDER SUPPLY CORRECTIVE ACTION ORDER; DEFENDANTS REQUEST FOR A STATUS CONFERENCE re 845 MOTION Enforce and Extend Provider Supply CAO re MOTION FOR PROTECTION FROM PLAINTIFFS DISCOVERY REQUESTS RELATING TO PLAINTIFFS MOTION TO ENFORCE AND EXTEND PROVIDER SUPPLY CORRECTIVE ACTION ORDER; DEFENDANTS REQUEST FOR A STATUS CONFERENCE re 845 MOTION Enforce and Extend Provider Supply CAO re.. (Eccles, James) (Entered: 12/27/2011)
851 ***FILED IN ERROR. PLEASE IGNORE.***

01/05/2012

Additional Attachments to Main Document: 828 Notice (Other).. (Eccles, James) Modified on 12/30/2011 (cm, ). (Entered: 12/29/2011)
852 ***FILED IN ERROR. PLEASE IGNORE.***

01/05/2012

NOTICE by All Defendants of filing October 2011 QMR (Attachments: # 1 Appendix October 2011 QMR, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3, # 5 Exhibit Exhibit 4, # 6 Exhibit Exhibit 5, # 7 Exhibit Exhibit 6, # 8 Exhibit Exhibit 7, # 9 Exhibit Exhibit 8, # 10 Exhibit Exhibit 9, # 11 Exhibit Exhibit 10)(Eccles, James) Modified on 1/5/2012 (cm, ). (Entered: 01/05/2012)
853 ***FILED IN ERROR. PLEASE IGNORE.***

01/05/2012

Additional Attachments to Main Document: 852 Notice (Other), Notice (Other).. (Eccles, James) Modified on 1/5/2012 (cm, ). (Entered: 01/05/2012)
854 ***FILED IN ERROR. PLEASE IGNORE.***

Additional Attachments to Main Document: 852 Notice (Other), Notice (Other).. (Attachments: # 1 Exhibit Exhibit 13, # 2 Exhibit Exhibit 14)(Eccles, James) Modified on 1/5/2012 (cm, ). (Entered: 01/05/2012)

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 77 of 145

01/05/2012 855 ***FILED IN ERROR. PLEASE IGNORE.***

01/05/2012

Additional Attachments to Main Document: 852 Notice (Other), Notice (Other).. (Attachments: # 1 Exhibit Exhibit 16, # 2 Exhibit Exhibit 17, # 3 Exhibit Exhibit 18, # 4 Exhibit Exhibit 19, # 5 Exhibit Exhibit 20)(Eccles, James) Modified on 1/5/2012 (cm, ). (Entered: 01/05/2012)
856 ***FILED IN ERROR. PLEASE IGNORE.***

01/05/2012 01/05/2012 01/05/2012 01/09/2012
01/13/2012

Additional Attachments to Main Document: 852 Notice (Other), Notice (Other).. (Attachments: # 1 Exhibit Exhibit B, # 2 Exhibit Exhibit C, # 3 Exhibit Exhibit D, # 4 Exhibit Exhibit E, # 5 Exhibit Exhibit F, # 6 Exhibit Exhibit G, # 7 Exhibit Exhibit H, # 8 Exhibit Exhibit I, # 9 Exhibit Exhibit J, # 10 Exhibit Exhibit K, # 11 Exhibit Exhibit L, # 12 Exhibit Exhibit M, # 13 Exhibit Exhibit N)(Eccles, James) Modified on 1/5/2012 (cm, ). (Entered: 01/05/2012)
857 NOTICE by All Defendants of filing July 2011 QMR (Attachments: # 1 Appendix July QMR, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3, # 5 Exhibit Exhibit 4, # 6 Exhibit Exhibit 5)(Eccles, James) (Entered: 01/05/2012)
858 Additional Attachments to Main Document: 857 Notice (Other).. (Attachments: # 1 Exhibit Exhibit 7, # 2 Exhibit Exhibit 8, # 3 Exhibit Exhibit 9, # 4 Exhibit Exhibit 10, # 5 Exhibit Exhibit 11, # 6 Exhibit Exhibit 12, # 7 Exhibit Exhibit 13, # 8 Exhibit Exhibit 14, # 9 Exhibit Exhibit 15, # 10 Exhibit Exhibit 16, # 11 Exhibit Exhibit 17, # 12 Exhibit Exhibit 18, # 13 Exhibit Exhibit 19, # 14 Exhibit Exhibit 20)(Eccles, James) (Entered: 01/05/2012)
859 Additional Attachments to Main Document: 857 Notice (Other).. (Attachments: # 1 Exhibit 22, # 2 Exhibit 23, # 3 Exhibit 24, # 4 Exhibit 25, # 5 Exhibit 26)(Eccles, James) (Entered: 01/05/2012)
860 RESPONSE in Opposition re 848 MOTION FOR PROTECTION FROM PLAINTIFFS DISCOVERY REQUESTS RELATING TO PLAINTIFFS MOTION TO ENFORCE AND EXTEND PROVIDER SUPPLY CORRECTIVE ACTION ORDER; DEFENDANTS REQUEST FOR A STATUS CONFERENCE re 845 MOTION Enforce and Extend Provider Supply CAO re MOTION FOR PROTECTION FROM PLAINTIFFS DISCOVERY REQUESTS RELATING TO PLAINTIFFS MOTION TO ENFORCE AND EXTEND PROVIDER SUPPLY CORRECTIVE ACTION ORDER; DEFENDANTS REQUEST FOR A STATUS CONFERENCE re 845 MOTION Enforce and Extend Provider Supply CAO re MOTION FOR PROTECTION FROM PLAINTIFFS DISCOVERY REQUESTS RELATING TO PLAINTIFFS MOTION TO ENFORCE AND EXTEND PROVIDER SUPPLY CORRECTIVE ACTION ORDER; DEFENDANTS REQUEST FOR A STATUS CONFERENCE re 845 MOTION Enforce and Extend Provider Supply CAO re MOTION FOR PROTECTION FROM PLAINTIFFS DISCOVERY REQUESTS RELATING TO PLAINTIFFS MOTION TO ENFORCE AND EXTEND PROVIDER SUPPLY CORRECTIVE ACTION ORDER; DEFENDANTS REQUEST FOR A STATUS CONFERENCE re 845 MOTION Enforce and Extend Provider Supply CAO re filed by All Plaintiffs. (Attachments: # 1 Exhibit Plaintiffs' Interrogatories, # 2 Exhibit June, 2008 letter, # 3 Exhibit December, 2008 letter, # 4 Exhibit August, 2011 letter, # 5 Exhibit January 2011 letter, # 6 Exhibit TMHP report excerpt, # 7 Exhibit 2005 RFP, # 8 Exhibit Provider Supply non−compliance information, # 9 Exhibit Defendants' objections to Interrogs, # 10 Text of Proposed Order)(Swanson, Jane) (Entered: 01/09/2012)
861 RESPONSE to Motion re 849 MOTION to determine discovery issues and set timetable for further court filings re 845 MOTION Enforce and Extend Provider Supply CAO re 637 Joint MOTION for Entry of an Agreed Corrective Action Order MOTION Enforce and Extend Provider Supp MOTION to determine discovery issues and set timetable for further court filings re 845 MOTION Enforce and Extend Provider Supply CAO re 637 Joint MOTION for Entry of an Agreed Corrective Action Order MOTION Enforce and Extend Provider Supp MOTION to determine discovery issues and set timetable for further court filings re 845 MOTION Enforce and Extend Provider Supply CAO re 637 Joint MOTION for Entry of an Agreed Corrective Action Order MOTION Enforce and Extend Provider Supp filed by All Defendants. (Attachments: # 1 Text of Proposed Order)(Eccles, James) (Entered: 01/13/2012)

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 78 of 145

01/19/2012
01/23/2012 01/30/2012 01/30/2012 01/30/2012 01/30/2012 01/30/2012 01/31/2012 01/31/2012

862 REPLY to Response to Motion re 849 MOTION to determine discovery issues and set timetable for further court filings re 845 MOTION Enforce and Extend Provider Supply CAO re 637 Joint MOTION for Entry of an Agreed Corrective Action Order MOTION Enforce and Extend Provider Supp MOTION to determine discovery issues and set timetable for further court filings re 845 MOTION Enforce and Extend Provider Supply CAO re 637 Joint MOTION for Entry of an Agreed Corrective Action Order MOTION Enforce and Extend Provider Supp MOTION to determine discovery issues and set timetable for further court filings re 845 MOTION Enforce and Extend Provider Supply CAO re 637 Joint MOTION for Entry of an Agreed Corrective Action Order MOTION Enforce and Extend Provider Supp filed by All Plaintiffs. (Swanson, Jane) (Entered: 01/19/2012)
NOTICE of Hearing on Motion de #849 − MOTION to determine discovery issues and set timetable for further court filings Motion de #848 − MOTION FOR PROTECTION FROM PLAINTIFFS DISCOVERY REQUESTS RELATING TO PLAINTIFFS MOTION TO ENFORCE AND EXTEND PROVIDER SUPPLY CORRECTIVE ACTION ORDER; DEFENDANTS REQUEST FOR A STATUS CONFERENCE Motion de #845 − MOTION Enforce and Extend Provider Supply CAO. Motions Hearing set for Monday, 4/9/2012 at 2:00 PM in Ctrm 105 (Plano) before Judge Richard A. Schell. (lab) (Entered: 01/23/2012)
863 MOTION for Leave to File Excess Pages by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 01/30/2012)
864 MOTION Enforce and Extend Provider Supply CAO re 637 Joint MOTION for Entry of an Agreed Corrective Action Order by All Plaintiffs. (Attachments: # 1 Exhibit Dr. Flores Declaration, # 2 Exhibit Dr. Flores c.v., # 3 Exhibit Dr. Lukefahr Declaration, # 4 Exhibit Dr. Lukefahr c.v., # 5 Exhibit 2009 Major Assessment Medicaid Provider Base, # 6 Exhibit 1st Interim Assessment Medicaid Provider Base, # 7 Exhibit 2010 Interim Assessment Medicaid Provider Base, # 8 Exhibit CMS 416s)(Swanson, Jane) (Entered: 01/30/2012)
865 Additional Attachments to Main Document:. (Attachments: # 1 Exhibit Ex. 9 Texas Health Steps dental report, # 2 Exhibit Ex. 10 Oct. 2011 Letter from Defends' Atty, # 3 Exhibit Ex. 11 June 2011 Provider Relations Report, # 4 Exhibit Ex. 12 June 2011 letter from Defends' Atty, # 5 Exhibit Ex. 13 May 2011 letter from Defends' atty, # 6 Exhibit Ex. 14 Health Professions Resource Center report, # 7 Exhibit Ex. 15 DSHS Report Numbers of Dentists, # 8 Exhibit Ex. 16 Defends' Definition of Provider Shortage Area, # 9 Exhibit Ex. 17 April, 2011 Quarterly monitoring report excerpt, # 10 Exhibit Ex. 18 TMA Survey excerpts)(Swanson, Jane) (Entered: 01/30/2012)
866 Additional Attachments to Main Document:. (Attachments: # 1 Exhibit 19 Title V Application excerpt, # 2 Exhibit 20 Title V Needs Assessment excerpt, # 3 Exhibit 21 TMHP report excerpts, # 4 Exhibit 22 TMHP report excerpts, # 5 Exhibit 23 2007 CAHPS survey report excerpt, # 6 Exhibit 24 2009 Schedule for EQRO reports, # 7 Exhibit 25 August 2011 letter from Defends' atty, # 8 Exhibit 26 EQRO Quality of Care Measures excerpt, # 9 Exhibit 27 Altarum "No Care" study report excerpt, # 10 Exhibit 28 Strategic Initiative summary)(Swanson, Jane) (Attachment 10 replaced on 1/31/2012) (fnt, ). (Entered: 01/30/2012)
867 Additional Attachments to Main Document:. (Attachments: # 1 Exhibit 29 Dr. Holley Declaration, # 2 Exhibit 30 Dr. Kennedy Declaration, # 3 Exhibit 31 2010 Star Quality of Care excerpts, # 4 Exhibit 32 2009 Star CAHPS survey excerpt, # 5 Exhibit 33 2011 PCCM CAHPS survey excerpt, # 6 Exhibit 34 LBB Report Reducing ER Use, # 7 Exhibit 35 LBB Report Northstar Comparison, # 8 Exhibit 36 Summary of Inconsistencies in Dentist Reports, # 9 Exhibit 37 AHRQ Hospital Discharge Data description, # 10 Text of Proposed Order)(Swanson, Jane) (Entered: 01/30/2012)
868 NOTICE by All Defendants of Filing QMR − January, 2012 (Attachments: # 1 Appendix QMR − January 2012, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3, # 5 Exhibit Exhibit 4)(Eccles, James) (Entered: 01/31/2012)
869 Additional Attachments to Main Document: 868 Notice (Other).. (Attachments: # 1 Exhibit Exhibit 6, # 2 Exhibit Exhibit 7, # 3 Exhibit Exhibit 8, # 4 Exhibit Exhibit 9, # 5 Exhibit Exhibit 10)(Eccles, James) (Entered: 01/31/2012)

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01/31/2012 01/31/2012 02/03/2012 02/16/2012
02/16/2012
02/17/2012 02/17/2012 02/17/2012 02/24/2012 02/24/2012 03/05/2012

870 Additional Attachments to Main Document: 868 Notice (Other).. (Attachments: # 1 Exhibit Exhibit 12, # 2 Exhibit Exhibit 13, # 3 Exhibit Exhibit 14, # 4 Exhibit Exhibit 15, # 5 Exhibit Exhibit 16, # 6 Exhibit Exhibit 17, # 7 Exhibit Exhibit 18, # 8 Exhibit Exhibit 19)(Eccles, James) (Entered: 01/31/2012)
871 Additional Attachments to Main Document: 868 Notice (Other).. (Attachments: # 1 Exhibit Exhibit 21, # 2 Exhibit Exhibit 22, # 3 Exhibit Exhibit 23, # 4 Exhibit Exhibit 24, # 5 Exhibit Exhibit 25, # 6 Exhibit Exhibit 26, # 7 Exhibit Exhibit 27)(Eccles, James) (Entered: 01/31/2012)
872 Joint MOTION for Extension of Time to File Enforcement Motion, Report and Plans by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 02/03/2012)
873 RESPONSE to Motion re 864 MOTION Enforce and Extend Provider Supply CAO re 637 Joint MOTION for Entry of an Agreed Corrective Action Order MOTION Enforce and Extend Provider Supply CAO re 637 Joint MOTION for Entry of an Agreed Corrective Action Order MOTION Enforce and Extend Provider Supply CAO re 637 Joint MOTION for Entry of an Agreed Corrective Action Order filed by All Defendants. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 2−ML−1, # 4 Exhibit 2−ML−2, # 5 Exhibit 2−ML−3, # 6 Exhibit 2−ML−4, # 7 Exhibit 2−ML−5, # 8 Exhibit 2−ML−6, # 9 Exhibit 2−ML−7, # 10 Exhibit 2−ML−8, # 11 Exhibit 2−ML−9, # 12 Exhibit 2−ML−10, # 13 Exhibit 2−ML−11, # 14 Exhibit 2−ML−12, # 15 Exhibit 3, # 16 Exhibit 3−RA−1, # 17 Exhibit 4, # 18 Exhibit 5, # 19 Exhibit 6, # 20 Exhibit 7, # 21 Exhibit 8, # 22 Exhibit 8−AH−1, # 23 Exhibit 9, # 24 Exhibit 10, # 25 Exhibit 10−TH−1)(Eccles, James) (Entered: 02/16/2012)
874 Additional Attachments to Main Document: 873 Response to Motion,,, 864 MOTION Enforce and Extend Provider Supply CAO re 637 Joint MOTION for Entry of an Agreed Corrective Action Order MOTION Enforce and Extend Provider Supply CAO re 637 Joint MOTION for Entry of an Agreed Corrective Action Order MOTION Enforce and Extend Provider Supply CAO re 637 Joint MOTION for Entry of an Agreed Corrective Action Order.. (Attachments: # 1 Exhibit 11, # 2 Exhibit 12, # 3 Exhibit 12−WG−1, # 4 Exhibit 12−WG−2, # 5 Exhibit 13, # 6 Exhibit 14, # 7 Exhibit 14B, # 8 Exhibit 15, # 9 Exhibit 15−JM−1, # 10 Exhibit 15−JM−2, # 11 Exhibit 16A, # 12 Exhibit 16B, # 13 Exhibit 17, # 14 Exhibit 18, # 15 Exhibit 19, # 16 Exhibit 20, # 17 Exhibit 21)(Eccles, James) (Entered: 02/16/2012)
875 Additional Attachments to Main Document: 873 Response to Motion,,,.. (Attachments: # 1 Exhibit 22A, # 2 Exhibit 22B, # 3 Exhibit 23A, # 4 Exhibit 23B, # 5 Exhibit 24, # 6 Exhibit 24−LG−1, # 7 Exhibit 24−LG−2, # 8 Exhibit 24−LG−3, # 9 Exhibit 24−LG−4)(Eccles, James) (Entered: 02/17/2012)
876 Additional Attachments to Main Document: 873 Response to Motion,,,.. (Attachments: # 1 Exhibit 25, # 2 Exhibit 25−PH−1, # 3 Exhibit 26, # 4 Exhibit 26−SB−1, # 5 Exhibit 26−SB−2, # 6 Exhibit 27, # 7 Exhibit 28, # 8 Exhibit 29, # 9 Exhibit 30, # 10 Exhibit 31, # 11 Exhibit 32, # 12 Exhibit 33, # 13 Exhibit 34, # 14 Exhibit 35, # 15 Exhibit 36, # 16 Text of Proposed Order)(Eccles, James) (Entered: 02/17/2012)
877 Opposed MOTION for Leave to File RESPONSE EXCEEDING FIFTEEN PAGES by All Defendants. (Attachments: # 1 Text of Proposed Order)(Eccles, James) (Attachment 1 replaced on 3/5/2012) (cm, ). (Entered: 02/17/2012)
878 RESPONSE to Motion re 877 Opposed MOTION for Leave to File RESPONSE EXCEEDING FIFTEEN PAGES filed by All Plaintiffs. (Swanson, Jane) (Entered: 02/24/2012)
879 Agreed MOTION for Extension of Time to File Response/Reply as to 873 Response to Motion,,, by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 02/24/2012)
880 REPLY to Response to Motion re 864 MOTION Enforce and Extend Provider Supply CAO re 637 Joint MOTION for Entry of an Agreed Corrective Action Order MOTION Enforce and Extend Provider Supply CAO re 637 Joint MOTION for Entry of an Agreed Corrective Action Order MOTION Enforce and Extend Provider Supply CAO re 637 Joint MOTION for Entry of an Agreed Corrective Action Order filed by All Plaintiffs. (Attachments: # 1 Exhibit Ex. 1 Federal Healthcare Reform Impact, # 2

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03/05/2012
03/05/2012 03/15/2012 03/15/2012
03/20/2012 03/30/2012 03/30/2012 03/30/2012 03/30/2012 03/30/2012 03/30/2012 03/30/2012
03/30/2012 04/06/2012

Exhibit Ex. 2 Pediatrics article, # 3 Exhibit Ex. 3 TMHP Report excerpt, # 4 Exhibit Ex. 4 Defends' Atty's Nov. 2011 letter, # 5 Exhibit Ex. 5 Defends' Atty's Jan. 2011 letter, # 6 Exhibit Ex. 6 Congressional Report excerpt, # 7 Exhibit Ex. 7 Star Quality of Care Report Excerpts, # 8 Exhibit Ex. 8 HMO Checkup Reports)(Swanson, Jane) (Entered: 03/05/2012)
881 Additional Attachments to Main Document: 864 MOTION Enforce and Extend Provider Supply CAO re 637 Joint MOTION for Entry of an Agreed Corrective Action Order MOTION Enforce and Extend Provider Supply CAO re 637 Joint MOTION for Entry of an Agreed Corrective Action Order MOTION Enforce and Extend Provider Supply CAO re 637 Joint MOTION for Entry of an Agreed Corrective Action Order.. (Attachments: # 1 Exhibit Ex. 9 Letter with Health Outcomes Data, # 2 Exhibit Ex. 10 Dictionary definition, # 3 Exhibit Ex. 11 Pls' Atty's July 2008 letter, # 4 Exhibit Ex. 12 Reply to Objections)(Swanson, Jane) (Entered: 03/05/2012)
882 Opposed MOTION for Leave to File Excess Pages by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 03/05/2012)
883 Unopposed MOTION for Leave to File to File Sur−Reply Exceeding Five Pages by All Defendants. (Eccles, James) (Entered: 03/15/2012)
884 SUR−REPLY to Reply to Response to Motion re 864 MOTION Enforce and Extend Provider Supply CAO re 637 Joint MOTION for Entry of an Agreed Corrective Action Order MOTION Enforce and Extend Provider Supply CAO re 637 Joint MOTION for Entry of an Agreed Corrective Action Order MOTION Enforce and Extend Provider Supply CAO re 637 Joint MOTION for Entry of an Agreed Corrective Action Order filed by All Defendants. (Attachments: # 1 Attachement 1)(Eccles, James) (Entered: 03/15/2012)
885 Additional Attachments to Main Document: 883 Unopposed MOTION for Leave to File to File Sur−Reply Exceeding Five Pages.. (Attachments: # 1 Text of Proposed Order)(Eccles, James) (Entered: 03/20/2012)
886 ORDER granting 823 Motion to Extend Negotiaions Time Period. Signed by Judge Richard A. Schell on 3/29/2012. (pad, ) (Entered: 03/30/2012)
887 ORDER granting 844 Motion for Leave to File Excess Pages. Signed by Judge Richard A. Schell on 3/29/2012. (pad, ) (Entered: 03/30/2012)
888 ORDER granting 872 Motion for Extension of Time to File Enforcement Motion, Report, and Plans. Signed by Judge Richard A. Schell on 3/29/2012. (pad, ) (Entered: 03/30/2012)
889 ORDER granting 824 Motion for Award of Interim Fee, Costs and Expenses to Plaintiffs' Attorneys. Signed by Judge Richard A. Schell on 3/29/2012. (pad, ) (Entered: 03/30/2012)
890 ORDER granting 863 Motion for Leave to File Excess Pages. Signed by Judge Richard A. Schell on 3/29/2012. (pad, ) (Entered: 03/30/2012)
891 ORDER granting 877 Motion for Leave to File Response Exceeding Fifteen Pages. Signed by Judge Richard A. Schell on 3/29/2012. (pad, ) (Entered: 03/30/2012)
892 NOTICE by All Plaintiffs re 864 MOTION Enforce and Extend Provider Supply CAO re 637 Joint MOTION for Entry of an Agreed Corrective Action Order MOTION Enforce and Extend Provider Supply CAO re 637 Joint MOTION for Entry of an Agreed Corrective Action Order MOTION Enforce and Extend Provider Supply CAO re 637 Joint MOTION for Entry of an Agreed Corrective Action Order (Attachments: # 1 Exhibit letter brief)(Swanson, Jane) (Entered: 03/30/2012)
893 NOTICE by All Defendants of Filing Letter Brief in Response to the Court's Request (Attachments: # 1 Exhibit Defendants' Letter Brief)(Eccles, James) (Entered: 03/30/2012)
894 NOTICE by All Defendants OF JOINT SUBMISSION OF MEDICAID OVERVIEW MATERIALS (Attachments: # 1 Medicaid Overview, # 2 Commonly Used Acronyms)(Eccles, James) (Entered: 04/06/2012)

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04/09/2012 04/10/2012 04/10/2012 04/10/2012 04/10/2012
04/19/2012 04/23/2012 04/26/2012 04/30/2012
04/30/2012 05/11/2012
05/22/2012 05/24/2012 06/08/2012

899 Minute Entry for proceedings held before Judge Richard A. Schell: Motion Hearing held on 4/9/2012 re Motions [846, 848, 849] (Court Reporter Jerry Kelley.) (bss, ) (Entered: 04/10/2012)
895 ORDER granting 879 Motion for Extension of Time to File Response/Reply. Plaintiffs may file their Reply to Defendants Response (Dkt #873) on or before March 5, 2012. The court notes that Plaintiffs did indeed file their reply on March 5, 2012. Signed by Judge Richard A. Schell on 4/9/12. (cm, ) (Entered: 04/10/2012)
896 ORDER granting 883 Motion for Leave to File. The court notes that the Defendants' sur−reply was indeed filed on March 15, 2012. Signed by Judge Richard A. Schell on 4/9/12. (cm, ) (Main Document 896 replaced on 4/10/2012) (cm, ). (Entered: 04/10/2012)
897 ORDER granting 882 Motion for Leave to File Excess Pages. The court finds that Plaintiffs motion has merit and notes that Defendants have failed to file a response opposing this motion. Signed by Judge Richard A. Schell on 4/9/12. (cm, ) (Entered: 04/10/2012)
898 ORDER re: 848 MOTION FOR PROTECTION FROM PLAINTIFFS DISCOVERY REQUESTS RELATING TO PLAINTIFFS MOTION TO ENFORCE AND EXTEND PROVIDER SUPPLY CORRECTIVE ACTION ORDER; 864 MOTION Enforce and Extend Provider Supply CAO, 849 MOTION to determine discovery issues and set timetable for further court filings. Signed by Judge Richard A. Schell on 4/9/12. (cm, ) (Entered: 04/10/2012)
900 Joint MOTION MODIFY CASE MANAGMENT SECTION OF CORRECTIVE ACTION ORDER by All Defendants, All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Eccles, James) (Entered: 04/19/2012)
901 NOTICE of Attorney Appearance by Timothy Borne Garrigan on behalf of All Plaintiffs (Attachments: # 1 Exhibit Plaintiffs' Exhibit 1, # 2 Exhibit Plaintiffs' Exhibit 2)(Garrigan, Timothy) (Entered: 04/23/2012)
902 Joint MOTION for Extension of Time to File Interim Fee Motion by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 04/26/2012)
903 NOTICE by All Defendants of Filing QMR − April 2012 (Attachments: # 1 Appendix QMR − April 2012, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3, # 5 Exhibit Exhibit 4, # 6 Exhibit Exhibit 5, # 7 Exhibit Exhibit 6, # 8 Exhibit Exhibit 7, # 9 Exhibit Exhibit 8, # 10 Exhibit Exhibit 9, # 11 Exhibit Exhibit 10)(Eccles, James) (Entered: 04/30/2012)
904 Additional Attachments to Main Document: 903 Notice (Other), Notice (Other).. (Attachments: # 1 Exhibit Exhibit 12, # 2 Exhibit Exhibit 13, # 3 Exhibit Exhibit 14, # 4 Exhibit Exhibit 15, # 5 Exhibit Exhibit 16, # 6 Exhibit Exhibit 17, # 7 Exhibit Exhibit 18, # 8 Exhibit Exhibit 19)(Eccles, James) (Entered: 04/30/2012)
905 Joint MOTION for Attorney Fees by All Plaintiffs. (Attachments: # 1 Exhibit Proposed Class Notice, # 2 Exhibit Zinn Declaration, # 3 Exhibit Zinn Time Records, # 4 Exhibit Zinn Expense Records, # 5 Exhibit Swanson Declaration, # 6 Exhibit Swanson Time Records, # 7 Exhibit Swanson Expense Records, # 8 Exhibit Baxter Affidavit, # 9 Text of Proposed Order)(Swanson, Jane) (Entered: 05/11/2012)
906 NOTICE by All Defendants Defendants' Report to the Court Regarding Notification to the Class (Eccles, James) (Entered: 05/22/2012)
907 MOTION FOR PROTECTION FROM PLAINTIFFS POST−SUBMISSION DISCOVERY REQUESTS RELATING TO PROVIDER SUPPLY CORRECTIVE ACTION ORDER by All Defendants. (Attachments: # 1 Text of Proposed Order)(Eccles, James) (Entered: 05/24/2012)
908 RESPONSE in Opposition re 907 MOTION FOR PROTECTION FROM PLAINTIFFS POST−SUBMISSION DISCOVERY REQUESTS RELATING TO PROVIDER SUPPLY CORRECTIVE ACTION ORDER Plaintiffs' Response in Opposition to Defendants' Motion for Protection (Dkt. 907) filed by All Plaintiffs. (Garrigan, Timothy) (Entered: 06/08/2012)

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06/08/2012 06/18/2012 06/22/2012
06/29/2012 07/18/2012 07/18/2012 07/18/2012 07/18/2012
07/26/2012 07/27/2012 07/31/2012 07/31/2012 07/31/2012 08/06/2012

909 Additional Attachments to Main Document: 908 Response in Opposition to Motion,.. (Garrigan, Timothy) (Entered: 06/08/2012)
910 REPLY to Response to Motion re 907 MOTION FOR PROTECTION FROM PLAINTIFFS POST−SUBMISSION DISCOVERY REQUESTS RELATING TO PROVIDER SUPPLY CORRECTIVE ACTION ORDER filed by All Defendants. (Eccles, James) (Entered: 06/18/2012)
911 SUR−REPLY to Reply to Response to Motion re 907 MOTION FOR PROTECTION FROM PLAINTIFFS POST−SUBMISSION DISCOVERY REQUESTS RELATING TO PROVIDER SUPPLY CORRECTIVE ACTION ORDER Plaintiffs' Sur−Reply Re: Defendants' Motion for Protection (Dkt. 907) filed by All Plaintiffs. (Garrigan, Timothy) (Entered: 06/22/2012)
912 NOTICE by All Defendants Letter to Judge Schell re: Provider Supply Reports (Attachments: # 1 Att. 1A, # 2 Att. 1B, # 3 Att. 2, # 4 Att. 3A, # 5 Att. 3B, # 6 Att. 4, # 7 Att. 5 − Summary for Court, # 8 Att. 6 − Graphs)(Eccles, James) (Entered: 06/29/2012)
913 ORDER. Within ten (10) days from the entry of this order, the parties are hereby ORDERED to file a status report with the court indicating how they would like to proceed with this issue in this case. Signed by Judge Richard A. Schell on 3/17/12. (cm, ) (Entered: 07/18/2012)
914 ORDER granting 902 Motion for Extension of Time to File. The deadline for filing Plaintiffs Motion for Interim Fees, Costs and Expenses (2011) is extended from April 30, 2012 until May 14, 2012. Signed by Judge Richard A. Schell on 7/17/12. (cm, ) (Entered: 07/18/2012)
915 ORDER granting 900 Motion to Modify Case Management Section of Corrective Action Order. Signed by Judge Richard A. Schell on 7/17/12. (cm, ) (Entered: 07/18/2012)
916 PROCEDURAL ORDER CONCERNING JOINT MOTION FOR AWARD OF INTERIM FEES, COSTS AND EXPENSES TO PLAINTIFFS ATTORNEYS (2011) granting 905 Motion for Attorney Fees. The parties are ORDERED to submit proposed findings of fact and conclusions of law for the courts consideration on or before January 31, 2013. Signed by Judge Richard A. Schell on 7/17/12. (cm, ) (Entered: 07/18/2012)
917 Opposed MOTION for Leave to File Letter Brief by All Plaintiffs. (Attachments: # 1 Exhibit Letter Brief, # 2 Exhibit Reimbursement Rate Reductions, # 3 Exhibit DSHS Dentists Table, # 4 Exhibit Health Professions Supply Trends Report, # 5 Text of Proposed Order)(Swanson, Jane) (Entered: 07/26/2012)
918 STATUS REPORT REGARDING THE PROVIDER SUPPLY CORRECTIVE ACTION ORDER by All Defendants. (Eccles, James) (Entered: 07/27/2012)
919 NOTICE by All Defendants OF FILING QUARTERLY MONITORING REPORT − JULY 2012 (Attachments: # 1 Exhibit July 2012 QMR, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7)(Eccles, James) (Entered: 07/31/2012)
920 Additional Attachments to Main Document: 919 Notice (Other), Notice (Other).. (Attachments: # 1 Exhibit 8, # 2 Exhibit 9, # 3 Exhibit 10, # 4 Exhibit 11, # 5 Exhibit 12, # 6 Exhibit 13, # 7 Exhibit 14, # 8 Exhibit 15)(Eccles, James) (Entered: 07/31/2012)
921 Additional Attachments to Main Document: 919 Notice (Other), Notice (Other), 920 Additional Attachments to Main Document,.. (Attachments: # 1 Exhibit 16, # 2 Exhibit 17, # 3 Exhibit 18, # 4 Exhibit 19, # 5 Exhibit 20, # 6 Exhibit 21, # 7 Exhibit 22, # 8 Exhibit 23)(Eccles, James) (Entered: 07/31/2012)
922 MOTION Plaintiffs' Motion for Further Action Following Corrective Action Order: Checkup Reports and Plans for Lagging Counties (Dkt. 637) by All Plaintiffs. (Attachments: # 1 Exhibit Plaintiffs' Exhibit 1, # 2 Exhibit Plaintiffs' Exhibit 2, # 3 Text of Proposed Order)(Garrigan, Timothy) (Entered: 08/06/2012)

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08/23/2012
08/23/2012 08/23/2012 08/23/2012 08/23/2012 08/23/2012 08/23/2012 08/23/2012

923 RESPONSE to Motion re 922 MOTION Plaintiffs' Motion for Further Action Following Corrective Action Order: Checkup Reports and Plans for Lagging Counties (Dkt. 637) MOTION Plaintiffs' Motion for Further Action Following Corrective Action Order: Checkup Reports and Plans for Lagging Counties (Dkt. 637) filed by All Defendants. (Attachments: # 1 Exhibit List, # 2 Exhibit 1a − Lagging County Report, Medical − 2007, # 3 Exhibit 1b − Lagging County Report − Dental 2007, # 4 Exhibit 2a − Lagging County Report 2008 − Medical, # 5 Exhibit 2b − Lagging County Report − Dental 2008, # 6 Exhibit 3a − Lagging County Rpt 2009 − Medical, # 7 Exhibit 3b − Lagging County Rpt 2009 − Dental, # 8 Exhibit 4a − Lagging County Report, Medical − 2010, # 9 Exhibit 4b − Lagging County Report, Dental − 2010, # 10 Exhibit 5 − 2007 CAP, # 11 Exhibit 6 − 1st Am CAP 2008, # 12 Exhibit 7 − CAP 2009, # 13 Exhibit 8 − 2010 CAP, # 14 Exhibit 9 − Defendants 2011−09−06 Ltr to Pltfs − Position Stms, # 15 Exhibit 10 − Plaintiffs 2011−09−23 Response)(Eccles, James) (Entered: 08/23/2012)
924 Additional Attachments to Main Document: 923 Response to Motion,,,,.. (Attachments: # 1 Exhibit 11 − 11−29−11 Reply to Pltfs re Pos Stmt −Lagging Counti, # 2 Exhibit 11a − 11−29−11 Attachment 1, # 3 Exhibit 12 − Pltfs 2012−01−04 Ltr Re further Action, # 4 Exhibit 13 − Decl M Bruch, # 5 Exhibit 13a − CV M Bruch)(Eccles, James) (Entered: 08/23/2012)
925 Additional Attachments to Main Document: 923 Response to Motion,,,,.. (Attachments: # 1 Exhibit 14 − Decl. B. Brownlee, # 2 Exhibit 14a − MTP Pushcard, # 3 Exhibit 14a Att. 1 − Appt.Education_Brochure, # 4 Exhibit 14a Att. 1 − MTP−110_Brochure_lo, # 5 Exhibit 14a Att. 1 − MTP−210_WALLET_CARD_Eng, # 6 Exhibit 14a Att. 1 − MTP−510_DESK_REFERENCE_lo, # 7 Exhibit 14a Att. 1 − Parent Health Care Guide, # 8 Exhibit 14a Att. 1− MTP Poster)(Eccles, James) (Entered: 08/23/2012)
926 Additional Attachments to Main Document: 923 Response to Motion,,,,.. (Attachments: # 1 Exhibit 14a − 1−Yr Due Ltr − Medical, # 2 Exhibit 14a − 2nd Baby Due Letter − Medical, # 3 Exhibit 14a − 3rd Due Ltr − Baby − Medical, # 4 Exhibit 14a − Baby Due Letter − Medical, # 5 Exhibit 14a − Child Due Letter−Medical, # 6 Exhibit 14a − Dental Due Letter for Infant, # 7 Exhibit 14a − Teen Due Letter − Medical, # 8 Exhibit 14a − Toddler Due Ltr − Medical, # 9 Exhibit 14a − THSteps Nonparticipant Letter)(Eccles, James) (Entered: 08/23/2012)
927 Additional Attachments to Main Document: 923 Response to Motion,,,,.. (Attachments: # 1 Exhibit 14a − Reminder − Baby − Dental, # 2 Exhibit 14a − Reminder − Toddler − Dental, # 3 Exhibit 14a − Reminder − Toddler − Medica, # 4 Exhibit 14a − Reminder − Child − Dental, # 5 Exhibit 14a − Reminder − Child − Medical, # 6 Exhibit 14a − Reminder−Teen − Dental, # 7 Exhibit 14a − Reminder − Teen − Medical)(Eccles, James) (Entered: 08/23/2012)
928 Additional Attachments to Main Document: 923 Response to Motion,,,,.. (Attachments: # 1 Exhibit 15 − Decl. G. Rutenberg, # 2 Exhibit 15a − Att.2 to G. Rutenberg Decl, # 3 Exhibit 15b − Att 1 − CV G. Rutenberg, # 4 Exhibit 16 − Dental Teen Brochure, # 5 Exhibit 17 − Teen Brochure, # 6 Exhibit 18 − Info by Age Chart, # 7 Exhibit 19 − Consistently Lagging Counties − Medical, # 8 Exhibit 20 − Consistently Lagging Counties Dental, # 9 Exhibit 21 − STAR Health CAHPS 2010, # 10 Exhibit 22 − HHSC MC Contract Terms & Conds, # 11 Exhibit 23 − HHSC MC Perf & Qual Meas, # 12 Exhibit 23a − STAR Health Perf & Qual Meas, # 13 Exhibit 23b − HHSC Perf & Qual Meas − Dental)(Eccles, James) (Entered: 08/23/2012)
929 Additional Attachments to Main Document: 923 Response to Motion,,,,.. (Attachments: # 1 Exhibit 24 − Ltr to Plaintiffs Re Defs Bus Processes, # 2 Exhibit 24a − Att. 1 to Defs 12−30−11 Ltr − Defs Bus Proc, # 3 Exhibit 25 − Defendants QMR Excerpt, # 4 Exhibit 26 − NEWS RELEASE − 1115 Waiver, # 5 Exhibit 27 − Medical Lagging Counties 2007 to 2010, # 6 Exhibit 28 − Dental Lagging Counties 2007 to 2010, # 7 Exhibit 29 − Frew THSteps Annual Rpts, # 8 Exhibit 30 − Jan−Feb 2012 Medicaid Bulletin)(Eccles, James) (Entered: 08/23/2012)
930 Additional Attachments to Main Document: 923 Response to Motion,,,,.. (Attachments: # 1 Exhibit 31 − MCO Service Delivery Areas, # 2 Exhibit 32 − THSteps Dental Chckup Summary 1997−2011, # 3 Exhibit 33 − Map of Cons LC − Medical, # 4 Exhibit 34 − Map of Cons LC − Denta, # 5 Exhibit 35 − All LC Medical − 2007−2010, # 6 Exhibit 36 − All LC Dental −2007−2010)(Eccles, James) (Entered:

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08/23/2012 08/23/2012 08/30/2012 09/04/2012 09/04/2012
09/07/2012
09/14/2012 09/21/2012 09/25/2012
09/25/2012
09/26/2012 09/27/2012 09/28/2012

08/23/2012)
931 Additional Attachments to Main Document: 923 Response to Motion,,,,.. (Attachments: # 1 Text of Proposed Order)(Eccles, James) (Entered: 08/23/2012)
932 MOTION TO MODIFY THE CONSENT DECREE TO ELIMINATE PORTIONS RELATING TO CHECKUP REPORTS AND PLANS FOR LAGGING COUNTIES by All Defendants. (Attachments: # 1 Text of Proposed Order)(Eccles, James) (Entered: 08/23/2012)
933 NOTICE by All Plaintiffs re 889 Order on Motion for Attorney Fees (2010 Interim Attorneys Fees, Costs and Expenses (Zinn, Susan) (Entered: 08/30/2012)
934 Unopposed MOTION for Leave to File Excess Pages Plaintiffs' Unopposed Motion to Exceed Page Limit by All Plaintiffs. (Attachments: # 1 Supplement Plaintiffs' Reply in Support of Plaintiffs' Motion for Further Action Regarding the Lagging Counties Corrective Action Order (Dkt. 922), # 2 Text of Proposed Order)(Garrigan, Timothy) (Entered: 09/04/2012)
935 REPLY to Response to Motion re 922 MOTION Plaintiffs' Motion for Further Action Following Corrective Action Order: Checkup Reports and Plans for Lagging Counties (Dkt. 637) MOTION Plaintiffs' Motion for Further Action Following Corrective Action Order: Checkup Reports and Plans for Lagging Counties (Dkt. 637) Plaintiffs' Reply in Support of Plaintiffs' Motion for Further Action Regarding the Lagging Counties Corrective Action Order (Dkt. 922) filed by All Plaintiffs. (Garrigan, Timothy) (Entered: 09/04/2012)
936 MOTION for Extension of Time to File Response/Reply as to 932 MOTION TO MODIFY THE CONSENT DECREE TO ELIMINATE PORTIONS RELATING TO CHECKUP REPORTS AND PLANS FOR LAGGING COUNTIES Plaintiffs' Presumptively Opposed Motion for More Time to File Response to Defendants' Motion to Modify the Consent Decree to Eliminate Portions Relating to Checkup Reports and Plans for Lagging Counties (Dkt. 932) by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Garrigan, Timothy) (Entered: 09/07/2012)
937 MOTION for Extension of Time to File SUR−REPLY AND NOTICE OF NON−OPPOSITION TO PLAINTIFFS MOTION TO EXTEND TIME by All Defendants. (Attachments: # 1 Text of Proposed Order)(Eccles, James) (Entered: 09/14/2012)
938 NOTICE by All Defendants REGARDING REPORT TO THE COURT REGARDING NOTIFICATION TO THE CLASS (Eccles, James) (Entered: 09/21/2012)
939 SUR−REPLY to Reply to Response to Motion re 934 Unopposed MOTION for Leave to File Excess Pages Plaintiffs' Unopposed Motion to Exceed Page Limit DEFENDANTS SUR−REPLY RELATING TO PLAINTIFFS MOTION FOR FURTHER ACTION FOLLOWING CORRECTIVE ACTION ORDER: CHECKUP REPORTS AND PLANS FOR LAGGING COUNTIES filed by All Defendants. (Attachments: # 1 1 − Index Listing, # 2 Exhibit 1)(Eccles, James) (Entered: 09/25/2012)
940 RESPONSE in Opposition re 932 MOTION TO MODIFY THE CONSENT DECREE TO ELIMINATE PORTIONS RELATING TO CHECKUP REPORTS AND PLANS FOR LAGGING COUNTIES Plaintiffs' Response in Opposition to Defendants' Motion to Modify the Consent Decree to Eliminate Portions Relating to Checkup Reports and Plans for Lagging Counties (Dkt. 932) filed by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Garrigan, Timothy) (Entered: 09/25/2012)
941 Unopposed MOTION for Leave to File Excess Pages by All Defendants. (Attachments: # 1 Text of Proposed Order)(Eccles, James) (Entered: 09/26/2012)
942 Joint MOTION for Extension of Time to File Enforcement Motion by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 09/27/2012)
943 Joint MOTION for Attorney Fees for 2010 by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Order Approving Agreed Interim Attorneys' Fees, Costs and Expenses for 2010)(Zinn, Susan) (Entered: 09/28/2012)

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09/28/2012 09/28/2012 09/28/2012
09/28/2012 09/28/2012 09/28/2012 09/30/2012 09/30/2012 10/01/2012 10/05/2012
10/05/2012 10/05/2012
10/09/2012
10/12/2012

944 ORDER granting 917 Motion for Leave to File. Plaintiffs' letter brief (Ex. 1 to Plaintiffs July 26, 2012 Status Report about Medicaid Provider Supply) is hereby considered filed with this court. Signed by Judge Richard A. Schell on 9/28/12. (cm, ) (Entered: 09/28/2012)
945 ORDER granting 934 Motion for Leave to File Excess Pages. Signed by Judge Richard A. Schell on 9/28/12. (cm, ) (Entered: 09/28/2012)
946 ORDER granting 936 Motion for Extension of Time to File Response/Reply re 932 MOTION TO MODIFY THE CONSENT DECREE TO ELIMINATE PORTIONS RELATING TO CHECKUP REPORTS AND PLANS FOR LAGGING COUNTIES. Responses due by 9/25/2012. Signed by Judge Richard A. Schell on 9/28/12. (cm, ) (Entered: 09/28/2012)
947 ORDER granting 937 Motion for Extension of Time to File. Signed by Judge Richard A. Schell on 9/28/12. (cm, ) (Entered: 09/28/2012)
948 ORDER granting 941 Motion for Leave to File Excess Pages. Signed by Judge Richard A. Schell on 9/28/12. (cm, ) (Entered: 09/28/2012)
949 ORDER granting 942 Motion for Extension of Time to File. Signed by Judge Richard A. Schell on 9/28/12. (cm, ) (Entered: 09/28/2012)
950 ORDER staying 864 Amended Motion to Enforce and Extend the Provider Supply Corrective Action Order, denying 907 Motion for Protection from Discovery. Signed by Judge Richard A. Schell on 9/29/2012. (pad, ) (Entered: 09/30/2012)
951 SUPPLEMENTAL ORDER denying 864 Motion to Enforce and Extend the Provider. Signed by Judge Richard A. Schell on 9/30/2012. (pad, ) (Entered: 09/30/2012)
952 NOTICE by All Defendants re 888 Order on Motion for Extension of Time to File Reports (Attachments: # 1 Exhibit SFY 2011 Utilization of THSteps Medical Checkups, # 2 Exhibit SFY 2011 Utilization of THSteps Dental CheckUps)(Eccles, James) (Entered: 10/01/2012)
953 Opposed MOTION to Stay OF STATEWIDENESS PORTION OF CONSENT DECREE PENDING DECISION ON DEFENDANTS RULE 60(B)(5)MOTION TO MODIFY THE CONSENT DECREE TO ELIMINATE PORTIONS RELATING TO CHECKUP REPORTS AND PLANS FOR LAGGING COUNTIES by All Defendants. (Eccles, James) (Entered: 10/05/2012)
954 MOTION for Leave to File Excess Pages for Reply Regarding Docket #932 (Opposition Unknown) by All Defendants. (Attachments: # 1 Text of Proposed Order)(Eccles, James) (Entered: 10/05/2012)
955 REPLY to Response to Motion re 932 MOTION TO MODIFY THE CONSENT DECREE TO ELIMINATE PORTIONS RELATING TO CHECKUP REPORTS AND PLANS FOR LAGGING COUNTIES filed by All Defendants. (Attachments: # 1 Exhibit List, # 2 Exhibit 1 − Medical LC Rpt 2011, # 3 Exhibit 2 − Dental LC Rpt 2011, # 4 Exhibit 3 − Updated Exhibit Medical Lagging Counties 2007 to 2011, # 5 Exhibit 4 − Updated Exhibit Dental Lagging Counties 2007 to 2011_., # 6 Exhibit 5 − Decl Rich Stebbins, # 7 Exhibit 6 − R. Stebbins, Att. 1, # 8 Exhibit 7 − R. Stebbins, Att. 2, # 9 Exhibit 8 − Statewideness Pages − State Plan, # 10 Exhibit 9 − CMS Approval Ltr, # 11 Exhibit 10 − State Plan − HHSC Website)(Eccles, James) (Entered: 10/05/2012)
956 RESPONSE in Support re 922 MOTION Plaintiffs' Motion for Further Action Following Corrective Action Order: Checkup Reports and Plans for Lagging Counties (Dkt. 637) MOTION Plaintiffs' Motion for Further Action Following Corrective Action Order: Checkup Reports and Plans for Lagging Counties (Dkt. 637) Corrected Plaintiffs' Reply in Support of Plaintiffs' Motion for Further Action Regarding the Lagging Counties Corrective Action Order (Dkt. 922) filed by All Plaintiffs. (Garrigan, Timothy) (Entered: 10/09/2012)
957 Agreed MOTION for Extension of Time to File Agreed Motion for More Time to file Sur−Reply to Defendants' Reply to Plaintiffs' Response to Defendants' Motion to Modify the Consent Decree to Eliminate Portions Relating to Checkup Reports and Plans for Lagging Counties by All Plaintiffs. (Attachments: # 1 Text of Proposed

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10/19/2012 10/19/2012 10/23/2012
10/31/2012
10/31/2012 11/01/2012 11/13/2012

Order)(Garrigan, Timothy) (Entered: 10/12/2012)
958 Unopposed MOTION for Leave to File Excess Pages Plaintiffs' Unopposed Motion to Exceed Page Limit by All Plaintiffs. (Attachments: # 1 Text of Proposed Order, # 2 Supplement)(Garrigan, Timothy) (Entered: 10/19/2012)
959 SUR−REPLY to Reply to Response to Motion re 932 MOTION TO MODIFY THE CONSENT DECREE TO ELIMINATE PORTIONS RELATING TO CHECKUP REPORTS AND PLANS FOR LAGGING COUNTIES Plaintiffs' Sur−Reply Opposing Defendants' Motion to Modify the Consent Decree to Eliminate Portions relating to Checkup Reports and Plans for Lagging Counties (Dkt. 932) filed by All Plaintiffs. (Garrigan, Timothy) (Entered: 10/19/2012)
960 MOTION for Extension of Time to File Response/Reply as to 953 Opposed MOTION to Stay OF STATEWIDENESS PORTION OF CONSENT DECREE PENDING DECISION ON DEFENDANTS RULE 60(B)(5)MOTION TO MODIFY THE CONSENT DECREE TO ELIMINATE PORTIONS RELATING TO CHECKUP REPORTS AND PLANS FOR LAGGING COUNTIESOpposed MOTION to Stay OF STATEWIDENESS PORTION OF CONSENT DECREE PENDING DECISION ON DEFENDANTS RULE 60(B)(5)MOTION TO MODIFY THE CONSENT DECREE TO ELIMINATE PORTIONS RELATING TO CHECKUP REPORTS AND PLANS FOR LAGGING COUNTIES Plaintiffs' Presumptively Opposed Motion for More Time to File Response to Defendants' Rule 62(b) Motion for Stay of Statewideness Portion of Consent Decree (Dkt. 953) by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Garrigan, Timothy) (Entered: 10/23/2012)
961 NOTICE by All Defendants OF FILING QUARTERLY MONITORING REPORT − OCTOBER 2012 (Attachments: # 1 October QMR, # 2 Exhibit #1 Corresp Re CAO Rx DME and Supplies, # 3 Exhibit #2 THSteps Eligibility Office Eval (Jun−Aug 2012), # 4 Exhibit #3 MAXIMUS THSteps Monthly Reports, # 5 Exhibit #3 MAXIMUS THSteps Monthly Reports pt. 2, # 6 Exhibit #4 DSHS THSteps Provider Relations Activities Rpt LD Stan, # 7 Exhibit #5 THSteps Written Offers or Oral Outreach Rpt Oct 2012, # 8 Exhibit #6 Amd July 2012 QMR Exh 3 MAXIMUS THSteps Monthly Rpt, # 9 Exhibit #6 Amd July 2012 QMR Exh 3 MAXIMUS THSteps part 2, # 10 Exhibit #7 THSteps 0427 OEFV and Oral Health, # 11 Exhibit #8 STEPS−0418 Case Manage Poster Non (Oct 2012), # 12 Exhibit #9 Activities Rpt for Medicaid MCOs, # 13 Exhibit #10 TMHP Monthly Provider Relations Rpt Jun Jul Aug, # 14 Exhibit #11 OPE Module Utilization Rpt Cumulative & by Quarter, # 15 Exhibit #12 OPE Module Utilization Face−to−Face Delivery Rpt, # 16 Exhibit #13 First Dental Home and Services by Gen Denists, # 17 Exhibit #14 OPE Module Utilization by Nurses Rpt Cumulative, # 18 Exhibit #15 Annual Summ of Training Req by CAO and CD, # 19 Exhibit #16 THSteps Active and Enrolled Dental Providers Rpt, # 20 Exhibit #17 Managed Care Children of Migrant Farmworkers Annual Rpt, # 21 Exhibit #18 First Amended Provider Access Report July 2012, # 22 Exhibit #19 Toll Free Number Compliance Rpt June July Aug 2012, # 23 Exhibit #20 Case Mgmt for Children & Preg Women 3rd Qtr 2012, # 24 Exhibit #21 Case Mgmt for Children and Pregnant Women Tracking, # 25 Exhibit #22 Case Mgmt for Child & Preg Women CAP & Tech Asst)(Eccles, James) (Entered: 10/31/2012)
962 RESPONSE in Opposition re 953 Opposed MOTION to Stay OF STATEWIDENESS PORTION OF CONSENT DECREE PENDING DECISION ON DEFENDANTS RULE 60(B)(5)MOTION TO MODIFY THE CONSENT DECREE TO ELIMINATE PORTIONS RELATING TO CHECKUP REPORTS AND PLANS FOR LAGGING COUNTIESOpposed MOTION to Stay OF STATEWIDENESS PORTION OF CONSENT DECREE PENDING DECISION ON DEFENDANTS RULE 60(B)(5)MOTION TO MODIFY THE CONSENT DECREE TO ELIMINATE PORTIONS RELATING TO CHECKUP REPORTS AND PLANS FOR LAGGING COUNTIES Plaintiffs' Response in Opposition to Defendants' Rule 62(b) Motion for Stay of Statewideness Portion of Consent Decree (Dkt. 953) filed by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Garrigan, Timothy) (Entered: 10/31/2012)
963 MOTION for Extension of Time to File Enforcement Motion by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 11/01/2012)
964 Unopposed MOTION for Leave to File Excess Pages by All Defendants. (Attachments: # 1 Text of Proposed Order)(Eccles, James) (Entered: 11/13/2012)

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11/13/2012
11/13/2012 11/21/2012 11/21/2012
11/29/2012 11/29/2012 11/29/2012
11/29/2012
11/29/2012

965 REPLY to Response to Motion re 953 Opposed MOTION to Stay OF STATEWIDENESS PORTION OF CONSENT DECREE PENDING DECISION ON DEFENDANTS RULE 60(B)(5)MOTION TO MODIFY THE CONSENT DECREE TO ELIMINATE PORTIONS RELATING TO CHECKUP REPORTS AND PLANS FOR LAGGING COUNTIESOpposed MOTION to Stay OF STATEWIDENESS PORTION OF CONSENT DECREE PENDING DECISION ON DEFENDANTS RULE 60(B)(5)MOTION TO MODIFY THE CONSENT DECREE TO ELIMINATE PORTIONS RELATING TO CHECKUP REPORTS AND PLANS FOR LAGGING COUNTIES filed by All Defendants. (Attachments: # 1 Exhibit 1 − Declaration M Long, # 2 1 − Long declaration att, # 3 2 − Long declaration att, # 4 3 − Long declaration att)(Eccles, James) (Entered: 11/13/2012)
966 MOTION for Hearing LR CV−7(g) REQUEST FOR ORAL HEARING REGARDING PENDING MOTIONS ON LAGGING COUNTIES by All Defendants. (Eccles, James) (Entered: 11/13/2012)
967 Unopposed MOTION for Leave to File Excess Pages by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Garrigan, Timothy) (Entered: 11/21/2012)
968 SUR−REPLY to Reply to Response to Motion re 953 Opposed MOTION to Stay OF STATEWIDENESS PORTION OF CONSENT DECREE PENDING DECISION ON DEFENDANTS RULE 60(B)(5)MOTION TO MODIFY THE CONSENT DECREE TO ELIMINATE PORTIONS RELATING TO CHECKUP REPORTS AND PLANS FOR LAGGING COUNTIESOpposed MOTION to Stay OF STATEWIDENESS PORTION OF CONSENT DECREE PENDING DECISION ON DEFENDANTS RULE 60(B)(5)MOTION TO MODIFY THE CONSENT DECREE TO ELIMINATE PORTIONS RELATING TO CHECKUP REPORTS AND PLANS FOR LAGGING COUNTIES Plaintiffs' Sur−Reply in Opposition to Defendants' Rule 62(b) Motion for Stay of Statewideness Portion of Consent Decree (Dkt. 953) filed by All Plaintiffs. (Garrigan, Timothy) (Entered: 11/21/2012)
969 Agreed MOTION to Seal Document by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 11/29/2012)
970 Agreed MOTION for Leave to File Excess Pages by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 11/29/2012)
971 SEALED MOTION to Enforce CAO and Decree by All Plaintiffs. (Attachments: # 1 Exhibit 1 Corrective Action Order, # 2 Exhibit 2 Consent Decree excerpts, # 3 Exhibit Defends' Proposed Action Plan, # 4 Exhibit 4 Vendor Drug Program News excerpt, # 5 Exhibit 5 RX Update, # 6 Exhibit Continuing Education for Prescribers excerpt, # 7 Exhibit 7 2005 Hearing Transcript excerpt, # 8 Exhibit 8 Jane Rider, M.D. dep excerpt, # 9 Exhibit 9 2007 problems getting diabetic test strips, # 10 Exhibit 10 Dunkelberg dep excerpt, # 11 Exhibit 11 SSI chart, # 12 Exhibit 12 Managed Care Expansion Update, # 13 Exhibit 13 Pharmacy Benefit Managed Care Expansion, # 14 Exhibit 14 Prescriber MCO Assistance Chart, # 15 Exhibit 15 HHSC message eligibility verification breakdown)(Swanson, Jane) (Entered: 11/29/2012)
972 SEALED ADDITIONAL ATTACHMENTS to Main Document:. (Attachments: # 1 Exhibit 16 HHSC Messages about Amerigroup violations, # 2 Exhibit 17 HHSC Messages about Pharmacy Problems, # 3 Exhibit 18 Amerigroup Prescription Rejection, # 4 Exhibit 19 Leukemia Patient Prescription Rejection, # 5 Exhibit 20 Problems getting Medical Equipment and Supplies, # 6 Exhibit 21 Ombudsman's Office Examples, # 7 Exhibit 22 Defends' Response to Interrogatories excerpt, # 8 Exhibit 23 ER prescription problems, # 9 Exhibit 24 Ombudsman's office other examples, # 10 Exhibit 25 HMO log excerpts "other insurance", # 11 Exhibit 26 HMO log response excerpts, # 12 Exhibit 27 Dr. Whitney declaration, # 13 Exhibit 27A Dr. Whitney c.v.)(Swanson, Jane) (Entered: 11/29/2012)
973 SEALED ADDITIONAL ATTACHMENTS to Main Document:. (Attachments: # 1 Exhibit 28 Dr. Wood Declaration, # 2 Exhibit 28A Dr. Wood c.v., # 3 Exhibit 29 Dr. Rider Declaration, # 4 Exhibit 29A Dr. Rider c.v., # 5 Exhibit 30 Maximus enrollment broker role, # 6 Exhibit 31 Amerigroup SEC filing excerpt, # 7 Exhibit 32 Superior press release, # 8 Exhibit 33 HHSC Announcement Billing for Limited Supplies, # 9 Exhibit 34 Defends' 1st Prescription Billing Analysis, # 10 Exhibit 35 Defends' 2nd Analysis Prescription Billing, # 11 Exhibit 36 UT College of Pharmacy Study, # 12 Exhibit 37 Children with Special Needs report excerpt, # 13 Exhibit 38 Dr. Mazur

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11/29/2012
12/04/2012 12/14/2012 12/26/2012 12/26/2012 12/26/2012 12/26/2012 12/26/2012 12/26/2012 12/26/2012 12/26/2012 12/26/2012
12/26/2012 12/26/2012 12/28/2012 01/03/2013

Declaration, # 14 Exhibit 38A Dr. Mazur c.v.)(Swanson, Jane) (Entered: 11/29/2012)
974 SEALED ADDITIONAL ATTACHMENTS to Main Document:. (Attachments: # 1 Exhibit 39 1st 50 pages Ombudsman's Office post−March 2012 contact records, # 2 Exhibit 40(1) HMO log, # 3 Exhibit 40(2) HMO log, # 4 Exhibit 40(3) HMO log, # 5 Exhibit 41 Message about Problems with Premature Infant's Prescription)(Swanson, Jane) (Entered: 11/29/2012)
975 Agreed MOTION for Protective Order CONCERNING CONFIDENTIAL HIPAA, MEDICAID AND SOCIAL SECURITY INFORMATION by All Defendants. (Attachments: # 1 Text of Proposed Order Protective Order (Proposed))(Eccles, James) (Entered: 12/04/2012)
976 Unopposed MOTION for Extension of Time to File Response/Reply as to 971 SEALED MOTION to Enforce CAO and Decree by All Defendants. (Attachments: # 1 Text of Proposed Order)(Eccles, James) (Entered: 12/14/2012)
977 ORDER granting 967 Motion for Leave to File Excess Pages. Signed by Judge Richard A. Schell on 12/21/2012. (pad, ) (Entered: 12/26/2012)
978 ORDER granting 954 Motion for Leave to File Excess Pages. Signed by Judge Richard A. Schell on 12/21/2012. (pad, ) (Entered: 12/26/2012)
979 ORDER granting 957 Motion for Extension of Time to File. Signed by Judge Richard A. Schell on 12/21/2012. (pad, ) (Entered: 12/26/2012)
980 ORDER granting 958 Motion for Leave to File Excess Pages. Signed by Judge Richard A. Schell on 12/21/2012. (pad, ) (Entered: 12/26/2012)
981 ORDER granting 960 Motion for Extension of Time to File Response. Signed by Judge Richard A. Schell on 12/2/12012. (pad, ) (Entered: 12/26/2012)
982 ORDER granting 963 Motion for Extension of Time to File. Signed by Judge Richard A. Schell on 12/21/2012. (pad, ) (Entered: 12/26/2012)
983 ORDER granting 964 Motion for Leave to File Excess Pages. Signed by Judge Richard A. Schell on 12/21/2012. (pad, ) (Entered: 12/26/2012)
984 ORDER granting 966 Motion for Hearing. Signed by Judge Richard A. Schell on 12/21/2012. (pad, ) (Entered: 12/26/2012)
Set Deadlines as to 953 Opposed MOTION to Stay OF STATEWIDENESS PORTION OF CONSENT DECREE PENDING DECISION ON DEFENDANTS RULE 60(B)(5)MOTION TO MODIFY THE CONSENT DECREE TO ELIMINATE PORTIONS RELATING TO CHECKUP REPORTS AND PLANS FOR LAGGING COUNTIESOpposed MOTION to Stay OF STATEWIDENESS PORTION OF CONSENT DECREE PENDING DECISION ON DEFENDANTS RULE 60(B)(5)MOTION TO MODIFY THE CONSENT DECREE TO ELIMINATE PORTIONS RELATING TO CHECKUP REPORTS AND PLANS FOR LAGGING COUNTIES, 932 MOTION TO MODIFY THE CONSENT DECREE TO ELIMINATE PORTIONS RELATING TO CHECKUP REPORTS AND PLANS FOR LAGGING COUNTIES, 922 MOTION Plaintiffs' Motion for Further Action Following Corrective Action Order: Checkup Reports and Plans for Lagging Counties (Dkt. 637) MOTION Plaintiffs' Motion for Further Action Following Corrective Action Order: Checkup Reports and Plans for Lagging Counties (Dkt. 637). Motion Hearing set for 1/8/2013 09:00 AM in Ctrm 105 (Plano) before Judge Richard A. Schell. (pad, ) (Entered: 12/26/2012)
985 ORDER granting 969 Motion to File Under Seal. Signed by Judge Richard A. Schell on 12/21/2012. (pad, ) (Entered: 12/26/2012)
986 ORDER granting 970 Motion for Leave to File Excess Pages. Signed by Judge Richard A. Schell on 12/21/2012. (pad, ) (Entered: 12/26/2012)
987 NOTICE by All Plaintiffs re 916 Order on Motion for Attorney Fees, 2011 Interim Attorneys' Fees (Zinn, Susan) (Entered: 12/28/2012)
988 NOTICE by All Plaintiffs Notice of Additional Evidence for Possible Consideration at the January 8, 2013 Hearing (Attachments: # 1 Exhibit, # 2 Exhibit, # 3

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01/03/2013 01/03/2013 01/07/2013 01/08/2013
01/14/2013 01/24/2013 01/31/2013 01/31/2013 01/31/2013 01/31/2013

Exhibit)(Garrigan, Timothy) (Entered: 01/03/2013)
989 ORDER granting 976 Motion for Extension of Time to File Response/Reply re 971 SEALED MOTION to Enforce CAO and Decree Responses due by 1/31/2013. Signed by Judge Richard A. Schell on 1/3/13. (cm, ) (Entered: 01/04/2013)
990 AGREED PROTECTIVE ORDER CONCERNING CONFIDENTIAL HIPAA, MEDICAID AND SOCIAL SECURITY INFORMATION granting 975 Motion for Protective Order. Signed by Judge Richard A. Schell on 1/3/13. (cm, ) (Entered: 01/04/2013)
991 ORDER APPROVING AGREED INTERIM ATTORNEYS FEES, COSTS AND EXENSES FOR 2010 granting 824 Motion for Attorney Fees; granting 943 Motion for Attorney Fees. Defendants are hereby ORDERED to make payment to Plaintiffs counsel no later than March 15, 2013. Signed by Judge Richard A. Schell on 1/4/13. (cm, ) (Entered: 01/07/2013)
992 Minute Entry for proceedings held before Judge Richard A. Schell: Motion Hearing held on 1/8/2013 re 932 MOTION TO MODIFY THE CONSENT DECREE TO ELIMINATE PORTIONS RELATING TO CHECKUP REPORTS AND PLANS FOR LAGGING COUNTIES filed by All Defendants, 953 Opposed MOTION to Stay OF STATEWIDENESS PORTION OF CONSENT DECREE PENDING DECISION ON DEFENDANTS RULE 60(B)(5)MOTION TO MODIFY THE CONSENT DECREE TO ELIMINATE PORTIONS RELATING TO CHECKUP REPORTS AND PLANS FOR LAGGING COUNTIESOpposed MOTION to Stay OF STATEWIDENESS PORTION OF CONSENT DECREE PENDING DECISION ON DEFENDANTS RULE 60(B)(5)MOTION TO MODIFY THE CONSENT DECREE TO ELIMINATE PORTIONS RELATING TO CHECKUP REPORTS AND PLANS FOR LAGGING COUNTIES filed by All Defendants, 922 MOTION Plaintiffs' Motion for Further Action Following Corrective Action Order: Checkup Reports and Plans for Lagging Counties (Dkt. 637) MOTION Plaintiffs' Motion for Further Action Following Corrective Action Order: Checkup Reports and Plans for Lagging Counties (Dkt. 637) filed by All Plaintiffs. (Court Reporter Jerry Kelley.) (bss, ) (Entered: 01/08/2013)
993 Joint MOTION for Extension of Time to File Provider Supply Enforcement Motion by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 01/14/2013)
994 NOTICE by All Plaintiffs Post−hearing letter brief to the Court (Attachments: # 1 Exhibit Attachment 5360)(Garrigan, Timothy) (Entered: 01/24/2013)
995 Joint MOTION for Attorney Fees for 2011 by All Plaintiffs. (Attachments: # 1 Text of Proposed Order 2011 interim fees)(Zinn, Susan) (Entered: 01/31/2013)
996 Unopposed MOTION for Leave to File Excess Pages by All Defendants. (Attachments: # 1 Text of Proposed Order)(Eccles, James) (Entered: 01/31/2013)
997 Unopposed MOTION to Seal Document by All Defendants. (Attachments: # 1 Text of Proposed Order)(Eccles, James) (Entered: 01/31/2013)
998 SEALED RESPONSE to Motion re 971 SEALED MOTION to Enforce CAO and Decree filed by All Defendants. (Attachments: # 1 Exhibit Exhibit List, # 2 Exhibit 1, # 3 Exhibit 1 (part 2), # 4 Exhibit 2, # 5 Exhibit 2, Att. 1, # 6 Exhibit 2, Att. 2, # 7 Exhibit 2, Att. 3, # 8 Exhibit 2, Att. 4, # 9 Exhibit 2, Att. 5, # 10 Exhibit 2, Att. 6, # 11 Exhibit 2, Att. 7, # 12 Exhibit 2, Att. 8, # 13 Exhibit 2, Att. 9, # 14 Exhibit 2, Att. 10, # 15 Exhibit 2, Att. 11, # 16 Exhibit 2, Att. 12, # 17 Exhibit 2, Att. 13, # 18 Exhibit 2, Att. 14, # 19 Exhibit 2, Att. 15, # 20 Exhibit 2, Att. 16, # 21 Exhibit 3, # 22 Exhibit 3, Att. 1, # 23 Exhibit 3, Att. 2, # 24 Exhibit 3, Att. 3, # 25 Exhibit 4, # 26 Exhibit 4, Att. 1, # 27 Exhibit 4, Att. 2, # 28 Exhibit 4, Att. 3, # 29 Exhibit 4, Att. 4, # 30 Exhibit 5, # 31 Exhibit 6, # 32 Exhibit 7, # 33 Exhibit 8, # 34 Exhibit 9, # 35 Exhibit 10, # 36 Exhibit 10, Att. 1, # 37 Exhibit 11, # 38 Exhibit 11, Att. 1, # 39 Exhibit 11, Att. 2, # 40 Exhibit 11, Att. 3, # 41 Exhibit 11, Att. 4, # 42 Exhibit 11, Att. 5, # 43 Exhibit 11, Att. 6, # 44 Exhibit 11, Att. 7, # 45 Exhibit 11, Att. 8, # 46 Exhibit 11, Att. 9, # 47 Exhibit 12, # 48 Exhibit 13, # 49 Exhibit 14, # 50 Exhibit 15, # 51 Exhibit 16, # 52 Exhibit 17, # 53 Exhibit 18, # 54 Exhibit 19, # 55 Exhibit 20, # 56 Exhibit 21, # 57 Exhibit 21, part 2, # 58 Exhibit 22, # 59 Exhibit 23)(Eccles, James) (Entered: 01/31/2013)

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02/06/2013

999 NOTICE by All Defendants Defendants' Letter Brief in Response to Plaintiffs' January 24, 2013 letter brief to the Court (Attachments: # 1 Attachement − 1, # 2 Attachment − 2, # 3 Attachment − 3, # 4 Attachment − 4, # 5 Attachment − 5)(Eccles, James) (Entered: 02/06/2013)

02/15/2013 1000 Agreed MOTION for Extension of Time to File Response/Reply as to 971 SEALED MOTION to Enforce CAO and Decree, 998 Sealed Response to Motion,,,,,, by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 02/15/2013)

02/15/2013

1001

NOTICE by All Defendants of Filing Quarterly Monitoring Report − January 2013 (Attachments: # 1 Exhibit Quarterly Report, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 2 (part 2), # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Exhibit 14, # 17 Exhibit 15, # 18 Exhibit 16)(Eccles, James) (Entered: 02/15/2013)

02/26/2013

1002

NOTICE OF FILING OF OFFICIAL TRANSCRIPT of MOTION HEARING held on April 9, 2012, before Judge Richard Schell. Court Reporter: Jerry Kelley, JerryKelleyCRR@aol.com Telephone number: 214−551−5118. <P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.txed.uscourts.gov<P> Transcript may be purchased from the Court Reporter or viewed at the court's public terminal before the deadline for Release of Transcript Restriction. After that date, it may be purchased from the Court Reporter or PACER. Redaction Request due 3/22/2013. Redacted Transcript Deadline set for 4/1/2013. Release of Transcript Restriction set for 5/30/2013. (Entered: 02/26/2013)

02/26/2013

1003

NOTICE OF FILING OF OFFICIAL TRANSCRIPT of MOTION HEARING (160 pages) held on January 8, 2013, before Judge Richard Schell. Court Reporter: Jerry Kelley, JerryKelleyCRR@aol.com Telephone number: 214−551−5118. <P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.txed.uscourts.gov<P> Transcript may be purchased from the Court Reporter or viewed at the court's public terminal before the deadline for Release of Transcript Restriction. After that date, it may be purchased from the Court Reporter or PACER. Redaction Request due 3/22/2013. Redacted Transcript Deadline set for 4/1/2013. Release of Transcript Restriction set for 5/30/2013. (Entered: 02/26/2013)

03/01/2013 1004 RESPONSE to Motion re 971 SEALED MOTION to Enforce CAO and Decree filed by All Plaintiffs. (Attachments: # 1 Exhibit 2008 Pharmacy Survey, # 2 Exhibit Defends' 72−hour supply claims analysis)(Swanson, Jane) (Entered: 03/01/2013)

03/01/2013

1005

Additional Attachments to Main Document: 1004 Response to Motion, 998 Sealed Response to Motion,,,,,,.. (Attachments: # 1 Exhibit Dr Rider dep Excerpts part 1, # 2 Exhibit Dr. Rider dep excerpts part 2, # 3 Exhibit Dr. Rider dep excerpts part 3, # 4 Exhibit Dr. Wood dep excerpts part 1, # 5 Exhibit Dr Wood dep excerpts part 2)(Swanson, Jane) (Entered: 03/01/2013)

03/01/2013

1006

Additional Attachments to Main Document: 998 Sealed Response to Motion,,,,,,.. (Attachments: # 1 Exhibit Dr. Whitney dep excerpts, # 2 Exhibit Defends' Atty's Letter about CAO compliance, # 3 Exhibit Epocrates Newsletter, # 4 Exhibit 1996 Pharmacist Knowledge Evaluation, # 5 Exhibit Pharmacist Use of Online Training, # 6 Exhibit HMO Member Handbook Excerpt)(Swanson, Jane) (Entered: 03/01/2013)

03/01/2013

1007

Additional Attachments to Main Document: 998 Sealed Response to Motion,,,,,,.. (Attachments: # 1 Exhibit RX Update Dispensing Fee, # 2 Exhibit Vendor Drug Program News Xenopex, # 3 Exhibit Dr. Mazur dep excerpts, # 4 Exhibit Nebulizer delay, # 5 Exhibit Comprehensive Care Program info, # 6 Text of Proposed Order)(Swanson, Jane) (Entered: 03/01/2013)

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03/01/2013 1008 Agreed MOTION for Leave to File Excess Pages by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 03/01/2013)

03/11/2013 1009 Unopposed MOTION for Extension of Time to File Sur−Reply/Reply by All Defendants. (Attachments: # 1 Text of Proposed Order)(Eccles, James) (Entered: 03/11/2013)

03/12/2013 1010 Agreed MOTION for Extension of Time to File Provider Supply Enforcement Motion by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 03/12/2013)

03/24/2013 1011 ORDER APPROVING AGREED INTERIM ATTORNEYS FEES, COSTS AND EXENSES FOR 2011 granting 995 Motion for Attorney Fees. Signed by Judge Richard A. Schell on 3/24/13. (cm, ) (Entered: 03/25/2013)

03/24/2013 1012 ORDER granting 996 Motion for Leave to File Excess Pages. Signed by Judge Richard A. Schell on 3/24/13. (cm, ) (Entered: 03/25/2013)

03/24/2013 1013 ORDER granting 997 Motion to Seal Document. Signed by Judge Richard A. Schell on 3/24/13. (cm, ) (Entered: 03/25/2013)

03/24/2013 1014 ORDER granting 1000 Motion for Extension of Time to File Response/Reply. The court notesthat the Plaintiffs' response was in fact filed on March 1, 2013. Signed by Judge Richard A. Schell on 3/24/13. (cm, ) (Entered: 03/25/2013)

03/24/2013

1015

ORDER granting 1008 Motion for Leave to File Excess Pages. Plaintiffs may file up to a 44−page combined Response/Reply concerning the Prescription and Non−Prescription Medications CAO and related Decree provisions, exclusive of the signature block, certificate of service and attachments. Signed by Judge Richard A. Schell on 3/24/13. (cm, ) (Entered: 03/25/2013)

03/24/2013 1016 ORDER granting 1009 Motion for Extension of Time to File. Signed by Judge Richard A. Schell on 3/24/13. (cm, ) (Entered: 03/25/2013)

03/24/2013

1017

ORDER finding as moot 993 Motion for Extension of Time to File; granting 1010 Motion for Extension of Time to File. Plaintiffs may have until May 22, 2013 to file their renewed Motion to Enforce the Provider Supply CAO and related Decree provisions. The parties' previous motion on this issue (Dkt. 993), is DENIED as moot. Signed by Judge Richard A. Schell on 3/24/13. (cm, ) (Entered: 03/25/2013)

03/25/2013 1018 Unopposed MOTION for Leave to File Excess Pages by All Defendants. (Attachments: # 1 Text of Proposed Order)(Eccles, James) (Entered: 03/25/2013)

03/25/2013

1019

REPLY to Response to Motion re 971 SEALED MOTION to Enforce CAO and Decree (Defendants' Reply in Support of their Rule 60(b)(5) Motion to Dissolve the Corrective Action Order on Prescription and Non−Prescription Medications; Medical Equipment and Supplies, and Related Consent Decree Provisions; Defendants' Sur−reply in Opposition to Plaintiffs' Motion to Enforce the Corrective Action Order: Prescription and Non−Prescription Medications; Medical Equipment and Supplies, and Related Decree Provisions) filed by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Eccles, James) (Entered: 03/25/2013)

03/28/2013

1020

ORDER ON PLAINTIFFS MOTION FOR FURTHER ACTION FOLLOWING CORRECTIVE ACTION ORDER: CHECKUP REPORTS & LAGGING COUNTIES & DEFENDANTS MOTION TO MODIFY denying 922 Motion to Modify the Consent Decree ; granting 932 Motion ; finding as moot 953 Motion to Stay. Signed by Judge Richard A. Schell on 3/28/13. (cm, ) (Entered: 03/28/2013)

03/28/2013 1021 ORDER granting 1018 Motion for Leave to File Excess Pages. Signed by Judge Richard A. Schell on 3/28/13. (cm, ) (Entered: 03/28/2013)

04/01/2013 1022 Unopposed MOTION for Leave to File Excess Pages by All Defendants. (Attachments: # 1 Text of Proposed Order)(Eccles, James) (Entered: 04/01/2013)

04/01/2013 1023 MOTION to Strike 971 SEALED MOTION to Enforce CAO and Decree the Testimony of Drs. Mazur, Whitney, Wood, and Rider, in Part or in Whole by All Defendants. (Attachments: # 1 Text of Proposed Order)(Eccles, James) (Entered: 04/01/2013)

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04/01/2013 1024 NOTICE of Attorney Appearance by James Byron Eccles on behalf of All Defendants (Eccles, James) (Entered: 04/01/2013)

04/04/2013 1025 Agreed MOTION for Leave to File Excess Pages by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 04/04/2013)

04/04/2013 1026 SUR−REPLY to Reply to Response to Motion re 637 Joint MOTION for Entry of an Agreed Corrective Action Order filed by All Plaintiffs. (Swanson, Jane) (Entered: 04/04/2013)

04/12/2013 1027 RESPONSE in Opposition re 1023 MOTION to Strike 971 SEALED MOTION to Enforce CAO and Decree the Testimony of Drs. Mazur, Whitney, Wood, and Rider, in Part or in Whole filed by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 04/12/2013)

04/22/2013 1028 First MOTION for Extension of Time to File Motion (2012 Interim Fees) by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Extension of Time)(Zinn, Susan) (Attachment 1 replaced on 4/25/2013) (cm, ). (Entered: 04/22/2013)

04/22/2013 1029 ***PLEASE IGNORE***NOTICE by All Plaintiffs (Zinn, Susan) Modified on 4/25/2013 (cm, ). (Entered: 04/22/2013)

04/22/2013

***FILED IN ERROR. Document # 1029, Notice. PLEASE IGNORE.***

(cm, ) (Entered: 04/25/2013)

04/24/2013 1030 MOTION for Hearing re 1023 MOTION to Strike 971 SEALED MOTION to Enforce CAO and Decree the Testimony of Drs. Mazur, Whitney, Wood, and Rider, in Part or in Whole, 971 SEALED MOTION to Enforce CAO and Decree, 998 Sealed Response to Motion,,,,,, by All Defendants. (Eccles, James) (Entered: 04/24/2013)

04/30/2013

1031

NOTICE by All Defendants OF FILING QUARTERLY MONITORING REPORT − APRIL 2013 (Attachments: # 1 April 2013 QMR, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14)(Eccles, James) (Entered: 04/30/2013)

05/22/2013 1032 Unopposed MOTION for Leave to File Excess Pages Plaintiffs' Motion to File Excess Page (Unopposed) by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Garrigan, Timothy) (Entered: 05/22/2013)

05/22/2013

1033

Opposed SEALED MOTION Plaintiffs' Renewed Motion to Enforce the Provider Supply Corrective Action Order and Related Decree Provisions (Opposed) by All Plaintiffs. (Attachments: # 1 Exhibit Plaintiffs' Exhibit 1, # 2 Exhibit Plaintiffs' Exhibit 3, # 3 Exhibit Plaintiffs' Exhibit 5, # 4 Exhibit Plaintiffs' Exhibit 10, # 5 Exhibit Plaintiffs' Exhibit 11, # 6 Exhibit Plaintiffs' Exhibit 12, # 7 Text of Proposed Order)(Garrigan, Timothy) (Entered: 05/22/2013)

05/23/2013

1034

SEALED ADDITIONAL ATTACHMENTS to Main Document: 990 Order on Motion for Protective Order, 1033 Opposed SEALED MOTION Plaintiffs' Renewed Motion to Enforce the Provider Supply Corrective Action Order and Related Decree Provisions (Opposed)Opposed SEALED MOTION Plaintiffs' Renewed Motion to Enforce the Provider Supply Corrective Action Order and Related Decree Provisions (Opposed). (Attachments: # 1 Exhibit Plaintiffs' Exhibit 2, # 2 Exhibit Plaintiffs' Exhibit 4, # 3 Exhibit Plaintiffs' Exhibit 6, # 4 Exhibit Plaintiffs' Exhibit 7, # 5 Exhibit Plaintiffs' Exhibit 8, # 6 Exhibit Plaintiffs' Exhibit 9)(Garrigan, Timothy) (Entered: 05/23/2013)

06/06/2013

1035

Unopposed MOTION for Extension of Time to File Response/Reply as to 1033 Opposed SEALED MOTION Plaintiffs' Renewed Motion to Enforce the Provider Supply Corrective Action Order and Related Decree Provisions (Opposed)Opposed SEALED MOTION Plaintiffs' Renewed Motion to Enforce the Provider Supply Corrective Action Order and Related Decree Provisions (Opposed) by All Defendants. (Attachments: # 1 Text of Proposed Order)(Halpern, Linda) (Entered: 06/06/2013)

06/07/2013 1036 ORDER granting 1022 Motion for Leave to File Excess Pages. Signed by Judge Richard A. Schell on 6/7/13. (cm, ) (Entered: 06/07/2013)

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06/07/2013 1037 ORDER granting 1025 Motion for Leave to File Excess Pages. Signed by Judge Richard A. Schell on 6/7/13. (cm, ) (Entered: 06/07/2013)

06/07/2013 1038 ORDER granting 1028 Motion for Extension of Time to File. The deadline for filing Plaintiffs motion for interim attorneys fees, costs and expenses for 2012 is June 22, 2013. Signed by Judge Richard A. Schell on 6/7/13. (cm, ) (Entered: 06/07/2013)

06/07/2013

1039

ORDER Setting Hearing on Motions Granting D.E. # 1030 MOTION for Hearing. Hearing set for 9/9/2013 09:00 AM in Ctrm 105 (Plano) before Judge Richard A. Schell. on 1023 MOTION to Strike 971 SEALED MOTION to Enforce CAO and Decree the Testimony of Drs. Mazur, Whitney, Wood, and Rider, in Part or in Whole, 971 SEALED MOTION to Enforce CAO and Decree, 998 Sealed Response to Motion. Signed by Judge Richard A. Schell on 6/7/13. (cm, ) Modified on 6/7/2013 (cm, ). (Entered: 06/07/2013)

06/07/2013 1040 ORDER granting 1032 Motion for Leave to File Excess Pages. Signed by Judge Richard A. Schell on 6/7/13. (cm, ) (Entered: 06/07/2013)

06/07/2013 1041 ORDER granting 1035 Motion for Extension of Time to File Response/Reply re 1033 Opposed SEALED MOTION Plaintiffs' Renewed Motion to Enforce the Provider Supply Corrective Action Order and Related Decree Provisions. Responses due by 7/12/2013. Signed by Judge Richard A. Schell on 6/7/13. (cm, ) (Entered: 06/07/2013)

06/24/2013 1042 Joint MOTION for Extension of Time to File Attorney Fee Motion (2012) by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 06/24/2013)

06/25/2013 1043 Opposed MOTION Pay expert witnesses re 898 Order, by All Plaintiffs. (Attachments: # 1 Exhibit Dr. Whitney Declaration, # 2 Exhibit Dr. Mazur Declaration, # 3 Exhibit Dr. Rider Declaration, # 4 Text of Proposed Order)(Swanson, Jane) (Entered: 06/25/2013)

07/01/2013

1044

Unopposed MOTION for Extension of Time to File Response/Reply as to 1033 Opposed SEALED MOTION Plaintiffs' Renewed Motion to Enforce the Provider Supply Corrective Action Order and Related Decree Provisions (Opposed)Opposed SEALED MOTION Plaintiffs' Renewed Motion to Enforce the Provider Supply Corrective Action Order and Related Decree Provisions (Opposed) by All Defendants. (Attachments: # 1 Text of Proposed Order Proposed Order − Ds 2nd Mtn Ext DL to Respond to Ps Renewed Mtn to Enf)(Halpern, Linda) (Entered: 07/01/2013)

07/09/2013

1045

RESPONSE in Opposition re 1043 Opposed MOTION Pay expert witnesses re 898 Order, (DEFENDANTS' RESPONSE IN OPPOSITION TO PLAINTIFFS' MOTION TO ENFORCE COMPENSATION FOR DEPOSITIONS OF WITNESSES filed by All Defendants. (Attachments: # 1 Text of Proposed Order)(Eccles, James) (Entered: 07/09/2013)

07/18/2013 1046 REPLY to Response to Motion re 1043 Opposed MOTION Pay expert witnesses re 898 Order, filed by All Plaintiffs. (Attachments: # 1 Exhibit transcript excerpt 4−9−12)(Swanson, Jane) (Entered: 07/18/2013)

07/18/2013 1047 Agreed MOTION for Leave to File Excess Pages by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 07/18/2013)

07/29/2013 1048 Joint MOTION for Extension of Time to File Motion Concerning 2012 Interim Fees by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Zinn, Susan) (Entered: 07/29/2013)

07/31/2013 1049 NOTICE by All Defendants Defendants' Notice of Filing Quarterly Monitoring Report − July 2013 (Attachments: # 1 July 2013 QMR, # 2 Table of Contents, # 3 Exhibit 1, # 4 Exhibit 2 (part 1), # 5 Exhibit 2 (part 2), # 6 Exhibit 3, # 7 Exhibit 4, # 8 Exhibit 5, # 9 Exhibit 6, # 10 Exhibit 7, # 11 Exhibit 8)(Eccles, James) (Entered: 07/31/2013)

07/31/2013 1050 Additional Attachments to Main Document: 1049 Notice (Other), Notice (Other).. (Attachments: # 1 Exhibit 9, # 2 Exhibit 10, # 3 Exhibit 11, # 4 Exhibit 12, # 5 Exhibit 13, # 6 Exhibit 14, # 7 Exhibit 15, # 8 Exhibit 16, # 9 Exhibit 17)(Eccles, James) (Entered: 07/31/2013)

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08/09/2013 1051 Unopposed SEALED MOTION Defandants' Motion to File Under Seal (Unopposed) by All Defendants. (Attachments: # 1 Text of Proposed Order)(Halpern, Linda) (Attachment 1 replaced on 9/6/2013) (cm, ). (Entered: 08/09/2013)

08/09/2013 1053 SEALED ADDITIONAL ATTACHMENTS to Main Document: 1052 Sealed Response to Motion,,. (Attachments: # 1 Exhibit Ex. 2 attchment H)(Halpern, Linda) (Entered: 08/09/2013)

08/09/2013 1054 SEALED ADDITIONAL ATTACHMENTS to Main Document: 1052 Sealed Response to Motion,,. (Attachments: # 1 Exhibit Ex. 2 attachment I, # 2 Exhibit Ex. 2 attachment J, # 3 Exhibit Ex. 2 attachment K, # 4 Exhibit Ex. 2 attachment L, # 5 Exhibit Ex. 3, # 6 Exhibit Ex. 4)(Halpern, Linda) (Entered: 08/09/2013)

08/09/2013

1055

SEALED ADDITIONAL ATTACHMENTS to Main Document: 1052 Sealed Response to Motion,,. (Attachments: # 1 Exhibit Ex. 5, # 2 Exhibit Ex. 6, # 3 Exhibit Ex. 7, # 4 Exhibit Ex. 8, # 5 Exhibit Ex. 9 Aetna−Becerra, # 6 Exhibit Ex. 9 Aetna−Bozeman, # 7 Exhibit Ex. 9 Aetna−Hurley, # 8 Exhibit Ex. 9 Aetna−Mercado, # 9 Exhibit Ex. 9 Aetna−Quinones, # 10 Exhibit Ex. 10 Amerigroup−Head, # 11 Exhibit Ex. 10 Amerigroup−Kennedy)(Halpern, Linda) (Entered: 08/09/2013)

08/09/2013

1056

SEALED ADDITIONAL ATTACHMENTS to Main Document: 1052 Sealed Response to Motion,,. (Attachments: # 1 Exhibit Ex. 11 Blue Cross−Fagen, # 2 Exhibit Ex. 12 Christus−Becerra, # 3 Exhibit Ex. 12 Christus−Hurley, # 4 Exhibit Ex. 13 Community First−Jimenez, # 5 Exhibit Ex. 13 Community First−Lomba, # 6 Exhibit Ex. 14 Community Health−Garcia, # 7 Exhibit Ex. 14 Community Health−Petrosino, # 8 Exhibit Ex. 15 Cook−Robidou, # 9 Exhibit Ex. 15 Cook−Ruiz, # 10 Exhibit Ex. 16 Driscoll−Peterson, # 11 Exhibit Ex. 17 El Paso First−Cadena, # 12 Exhibit Ex. 17 El Paso First−Casas, # 13 Exhibit Ex. 17 El Paso First−Herrera, # 14 Exhibit Ex. 17 El Paso First−Lujan, # 15 Exhibit Ex. 17 El Paso First−Martinez)(Halpern, Linda) (Entered: 08/09/2013)

08/09/2013

1057

SEALED ADDITIONAL ATTACHMENTS to Main Document: 1052 Sealed Response to Motion,,. (Attachments: # 1 Exhibit Ex. 18 FirstCare−McFarlin, # 2 Exhibit Ex. 18 FirstCare−Tippen, # 3 Exhibit Ex. 19 HealthSpring−Hurt, # 4 Exhibit Ex. 20 Molina−Burke, # 5 Exhibit Ex. 20 Molina−de Luna, # 6 Exhibit Ex. 20 Molina−Madrigal, # 7 Exhibit Ex. 20 Molina−Marino, # 8 Exhibit Ex. 20 Molina−Newsom, # 9 Exhibit Ex. 20 Molina−Senf, # 10 Exhibit Ex. 21 Parkland−Tenery, # 11 Exhibit Ex. 21 Parkland−Carney, # 12 Exhibit Ex. 21 Parkland−Keblar, # 13 Exhibit Ex. 22 Scott & White−Bean, # 14 Exhibit Ex. 22 Scott & White−Campbell, # 15 Exhibit Ex. 22 Scott & White−Nicklebur, # 16 Exhibit Ex. 22 Scott & White−Tippen, # 17 Exhibit Ex. 23 Sendero−Crawford, # 18 Exhibit Ex. 23 Sendero−Tillman, # 19 Exhibit Ex. 24 Seton−Gomez, # 20 Exhibit Ex. 24 Seton−Killebrew)(Halpern, Linda) (Entered: 08/09/2013)

08/09/2013 1058 SEALED ADDITIONAL ATTACHMENTS to Main Document: 1052 Sealed Response to Motion,,. (Attachments: # 1 Exhibit Ex. 25 Superior−Cizler, # 2 Exhibit Ex. 25 Superior−Wise)(Halpern, Linda) (Entered: 08/09/2013)

08/09/2013

1059

SEALED ADDITIONAL ATTACHMENTS to Main Document: 1052 Sealed Response to Motion,,. (Attachments: # 1 Exhibit Ex. 26 TCHP−Bean, # 2 Exhibit Ex. 26 TCHP−Cover, # 3 Exhibit Ex. 26 TCHP−Wahrmund, # 4 Exhibit Ex. 27 United−Deska, # 5 Exhibit Ex. 27 United−Sanchez, # 6 Exhibit Ex. 28 ValueOptions−Sanders, # 7 Exhibit Ex. 29 DentaQuest−Howley, # 8 Exhibit Ex. 29 attachment A, # 9 Exhibit Ex. 29 attachment B Central Texas, # 10 Exhibit Ex. 29 attachment B Gulf Coast)(Halpern, Linda) (Entered: 08/09/2013)

08/09/2013 1060 SEALED ADDITIONAL ATTACHMENTS to Main Document: 1052 Sealed Response to Motion,,. (Attachments: # 1 Exhibit Ex. 29 attachment B High Plains, # 2 Exhibit Ex. 29 attachment B Lower South Texas)(Halpern, Linda) (Entered: 08/09/2013)

08/09/2013 1061 SEALED ADDITIONAL ATTACHMENTS to Main Document: 1052 Sealed Response to Motion,,. (Attachments: # 1 Exhibit Ex. 29 attachment B MetroPlex Part 1)(Halpern, Linda) (Entered: 08/09/2013)

08/09/2013 1062 SEALED ADDITIONAL ATTACHMENTS to Main Document: 1052 Sealed Response to Motion,,. (Attachments: # 1 Exhibit Ex. 29 attachment B MetroPlex Part 2, # 2 Exhibit Ex. 29 attachment B Northwest Texas)(Halpern, Linda) (Entered:

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 95 of 145

08/09/2013)

08/09/2013

1063

SEALED ADDITIONAL ATTACHMENTS to Main Document: 1052 Sealed Response to Motion,,. (Attachments: # 1 Exhibit Ex. 29 attachment B Southeast Texas, # 2 Exhibit Ex. 29 attachment B Upper East Texas, # 3 Exhibit Ex. 29 attachment B Upper Rio Grande, # 4 Exhibit Ex. 29 attachment B Upper South Texas)(Halpern, Linda) (Entered: 08/09/2013)

08/09/2013

1064

SEALED ADDITIONAL ATTACHMENTS to Main Document: 1052 Sealed Response to Motion,,. (Attachments: # 1 Exhibit Ex. 29 attachment B West Texas, # 2 Exhibit Ex. 29 attachment C, # 3 Exhibit Ex. 29 attachment D, # 4 Exhibit Ex. 30 MCNA Lacasa, # 5 Exhibit Ex. 30 attachment A, # 6 Exhibit Ex. 30 attachment B, # 7 Exhibit Ex. 30 attachment C)(Halpern, Linda) (Entered: 08/09/2013)

08/09/2013 1065 SEALED ADDITIONAL ATTACHMENTS to Main Document: 1052 Sealed Response to Motion,,. (Attachments: # 1 Exhibit Ex. 30 attachment D Part 1)(Halpern, Linda) (Entered: 08/09/2013)

08/09/2013 1066 SEALED ADDITIONAL ATTACHMENTS to Main Document: 1052 Sealed Response to Motion,,. (Attachments: # 1 Exhibit Ex. 30 attachment D Part 2)(Halpern, Linda) (Entered: 08/09/2013)

08/09/2013 1067 SEALED ADDITIONAL ATTACHMENTS to Main Document: 1052 Sealed Response to Motion,,. (Attachments: # 1 Exhibit Ex. 30 attachment D Part 3)(Halpern, Linda) (Entered: 08/09/2013)

08/09/2013 1068 SEALED ADDITIONAL ATTACHMENTS to Main Document: 1052 Sealed Response to Motion,,. (Attachments: # 1 Exhibit Ex. 30 attachment D Part 4)(Halpern, Linda) (Entered: 08/09/2013)

08/09/2013 1069 SEALED ADDITIONAL ATTACHMENTS to Main Document: 1052 Sealed Response to Motion,,. (Attachments: # 1 Exhibit Ex. 30 attachment D Part 5, # 2 Exhibit Ex. 30 attachment E)(Halpern, Linda) (Entered: 08/09/2013)

08/09/2013

1070

SEALED ADDITIONAL ATTACHMENTS to Main Document: 1052 Sealed Response to Motion,,. (Attachments: # 1 Exhibit Ex. 31, # 2 Exhibit Ex. 32, # 3 Exhibit Ex. 33, # 4 Exhibit Ex. 34, # 5 Exhibit Ex. 35, # 6 Exhibit Ex. 36, # 7 Exhibit Ex. 37, # 8 Exhibit Ex. 38, # 9 Exhibit Ex. 39, # 10 Exhibit Ex. 40, # 11 Exhibit Ex. 41)(Halpern, Linda) (Entered: 08/09/2013)

08/09/2013 1071 SEALED ADDITIONAL ATTACHMENTS to Main Document: 1052 Sealed Response to Motion,,. (Attachments: # 1 Exhibit Ex. 42, # 2 Exhibit Ex. 43, # 3 Exhibit Ex. 44, # 4 Exhibit Ex. 45, # 5 Exhibit Ex. 46)(Halpern, Linda) (Entered: 08/09/2013)

08/09/2013 1072 SEALED ADDITIONAL ATTACHMENTS to Main Document: 1052 Sealed Response to Motion,,. (Attachments: # 1 Exhibit Ex. 47, # 2 Exhibit Ex. 48, # 3 Exhibit Ex. 49)(Halpern, Linda) (Entered: 08/09/2013)

08/09/2013 1073 SEALED ADDITIONAL ATTACHMENTS to Main Document: 1052 Sealed Response to Motion,,. (Attachments: # 1 Exhibit Ex. 49 attachment A Part 1)(Halpern, Linda) (Entered: 08/09/2013)

08/09/2013 1074 SEALED ADDITIONAL ATTACHMENTS to Main Document: 1052 Sealed Response to Motion,,. (Attachments: # 1 Exhibit Ex. 49 attachment A Part 2)(Halpern, Linda) (Entered: 08/09/2013)

08/09/2013 1075 SEALED ADDITIONAL ATTACHMENTS to Main Document: 1052 Sealed Response to Motion,,. (Attachments: # 1 Exhibit Ex. 49 attachment A Part 3)(Halpern, Linda) (Entered: 08/09/2013)

08/09/2013 1076 SEALED ADDITIONAL ATTACHMENTS to Main Document: 1052 Sealed Response to Motion,,. (Attachments: # 1 Exhibit Ex. 49 attachment A Part 4)(Halpern, Linda) (Entered: 08/09/2013)

08/09/2013 1077 SEALED ADDITIONAL ATTACHMENTS to Main Document: 1052 Sealed Response to Motion,,. (Attachments: # 1 Exhibit Ex. 49 attachment A Part 5)(Halpern, Linda) (Entered: 08/09/2013)

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08/09/2013 1078 SEALED ADDITIONAL ATTACHMENTS to Main Document: 1052 Sealed Response to Motion,,. (Attachments: # 1 Exhibit Ex. 49 attachment A Part 6)(Halpern, Linda) (Entered: 08/09/2013)

08/09/2013 1079 SEALED ADDITIONAL ATTACHMENTS to Main Document: 1052 Sealed Response to Motion,,. (Attachments: # 1 Exhibit Ex. 49 attachment A Part 7)(Halpern, Linda) (Entered: 08/09/2013)

08/09/2013 1080 SEALED ADDITIONAL ATTACHMENTS to Main Document: 1052 Sealed Response to Motion,,. (Attachments: # 1 Exhibit Ex. 49 attachment A Part 8)(Halpern, Linda) (Entered: 08/09/2013)

08/09/2013 1081 SEALED ADDITIONAL ATTACHMENTS to Main Document: 1052 Sealed Response to Motion,,. (Attachments: # 1 Exhibit Ex. 49 attachment A Part 9, # 2 Exhibit Ex. 49 attachment B, # 3 Exhibit Ex. 50)(Halpern, Linda) (Entered: 08/09/2013)

08/09/2013 1082 SEALED ADDITIONAL ATTACHMENTS to Main Document: 1052 Sealed Response to Motion,,. (Attachments: # 1 Exhibit Ex. 51, # 2 Exhibit Ex. 52, # 3 Exhibit Ex. 53, # 4 Exhibit Ex. 54)(Halpern, Linda) (Entered: 08/09/2013)

08/09/2013 1083 SEALED ADDITIONAL ATTACHMENTS to Main Document: 1052 Sealed Response to Motion,,. (Attachments: # 1 Exhibit Ex. 55, # 2 Exhibit Ex. 56, # 3 Exhibit Ex. 57, # 4 Exhibit Ex. 58, # 5 Exhibit Ex 59, # 6 Exhibit Ex. 60, # 7 Exhibit Ex. 61, # 8 Exhibit Ex. 62)(Halpern, Linda) (Entered: 08/09/2013)

08/09/2013

1084

SEALED ADDITIONAL ATTACHMENTS to Main Document: 1052 Sealed Response to Motion,,. (Attachments: # 1 Exhibit Ex. 63, # 2 Exhibit Ex. 64, # 3 Exhibit Ex. 65, # 4 Exhibit Ex. 66, # 5 Exhibit Ex. 67, # 6 Exhibit Ex. 68, # 7 Exhibit Ex. 69, # 8 Exhibit Ex. 70, # 9 Exhibit Ex. 71, # 10 Exhibit Ex. 72, # 11 Exhibit Ex. 73, # 12 Exhibit Ex. 74, # 13 Exhibit Ex. 75, # 14 Exhibit Ex. 76, # 15 Exhibit Ex. 77)(Halpern, Linda) (Entered: 08/09/2013)

08/09/2013

1085

SEALED ADDITIONAL ATTACHMENTS to Main Document: 1052 Sealed Response to Motion,,. (Attachments: # 1 Exhibit Ex. 78, # 2 Exhibit Ex. 79, # 3 Exhibit Ex. 80, # 4 Exhibit Ex. 81, # 5 Exhibit Ex. 82, # 6 Exhibit Ex. 83, # 7 Exhibit Ex. 84, # 8 Exhibit Ex. 85, # 9 Exhibit Ex. 86, # 10 Exhibit Ex. 87, # 11 Text of Proposed Order)(Halpern, Linda) (Entered: 08/09/2013)

08/09/2013 1086 Unopposed MOTION for Leave to File Excess Pages Defendants' Unopposed Motion to Exceed Page Limit by All Defendants. (Attachments: # 1 Text of Proposed Order)(Halpern, Linda) (Attachment 1 replaced on 8/21/2013) (cm, ). (Entered: 08/09/2013)

08/09/2013 1087 SEALED ADDITIONAL ATTACHMENTS to Main Document: 1056 Sealed Additional Attachments to Main Document,,. (Halpern, Linda) (Entered: 08/09/2013)

08/19/2013

1088

Agreed MOTION for Extension of Time to File Response/Reply as to 1057 Sealed Additional Attachments to Main Document,,, 1083 Sealed Additional Attachments to Main Document, 1075 Sealed Additional Attachments to Main Document, 1077 Sealed Additional Attachments to Main Document, 1053 Sealed Additional Attachments to Main Document, 1087 Sealed Additional Attachments to Main Document, 1065 Sealed Additional Attachments to Main Document, 1066 Sealed Additional Attachments to Main Document, 1084 Sealed Additional Attachments to Main Document, 1081 Sealed Additional Attachments to Main Document, 1056 Sealed Additional Attachments to Main Document,, 1054 Sealed Additional Attachments to Main Document, 1071 Sealed Additional Attachments to Main Document, 1069 Sealed Additional Attachments to Main Document, 1064 Sealed Additional Attachments to Main Document, 1070 Sealed Additional Attachments to Main Document, 1072 Sealed Additional Attachments to Main Document, 1063 Sealed Additional Attachments to Main Document, 1068 Sealed Additional Attachments to Main Document, 1082 Sealed Additional Attachments to Main Document, 1080 Sealed Additional Attachments to Main Document, 1073 Sealed Additional Attachments to Main Document, 1059 Sealed Additional Attachments to Main Document,, 1067 Sealed Additional Attachments to Main Document, 1076 Sealed Additional Attachments to Main Document, 1079 Sealed Additional Attachments to Main Document, 1074 Sealed Additional Attachments to Main Document, 1078 Sealed Additional Attachments to Main Document, 1058 Sealed

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Additional Attachments to Main Document, 1085 Sealed Additional Attachments to Main Document, 1055 Sealed Additional Attachments to Main Document, 1061 Sealed Additional Attachments to Main Document, 1052 Sealed Response to Motion,, 1060 Sealed Additional Attachments to Main Document, 1062 Sealed Additional Attachments to Main Document Agreed Motion for More Time to File Plaintiffs' Response to Defendants' Rule 60(b)(5) Motion to Vacate the Corrective Action Order: Adequate Supply of Health Care Providers and Related Decree Provisions (Dkt. 1052 thru Dkt. 1087) (Sealed); and Plaintiffs' Reply in Support of Plaintiffs' Renewed Motion to Enforce the Provider Supply Corrective Action Order and Related Decree Provisions by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Garrigan, Timothy) (Entered: 08/19/2013)

09/09/2013

1089

Minute Entry for proceedings held before Judge Richard A. Schell: Motion Hearing held on 9/9/2013 re 1023 MOTION to Strike 971 SEALED MOTION to Enforce CAO and Decree the Testimony of Drs. Mazur, Whitney, Wood, and Rider, in Part or in Whole filed by All Defendants, 971 SEALED MOTION to Enforce CAO and Decree filed by All Plaintiffs. (Court Reporter Jerry Kelley.) (bss, ) (Main Document 1089 replaced on 9/10/2013) (bss, ). (Entered: 09/09/2013)

09/09/2013

1090

ORDER Setting Hearing on Motion 1033 Opposed SEALED MOTION Plaintiffs' Renewed Motion to Enforce the Provider Supply Corrective Action Order and Related Decree Provisions (Opposed) : Motion Hearing set for 12/19/2013 09:00 AM in Ctrm 105 (Plano) before Judge Richard A. Schell. Signed by Judge Richard A. Schell on 9/19/13. (cm, ) (Entered: 09/09/2013)

10/09/2013 1091 Fourth MOTION for Extension of Time to File Motoin for 2012 Interim Fees by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Extension of Time)(Zinn, Susan) (Entered: 10/09/2013)

10/29/2013

1092

Agreed MOTION for Extension of Time to File Plaintiffs' Response to Defendants' Rule 60(b)(5) Motion to Vacate the CAO: Adequate Supply of Health Care Providers and Related Decree Provisions (Dkt. 1052); and Plaintiffs' Reply in Support of Plaintiffs' Renewed Motion to Enforce the Provider Supply CAO and Related Decree Provisions (Dkt. 1033); and to File Defendants' Reply by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Garrigan, Timothy) (Entered: 10/29/2013)

10/30/2013

1093

NOTICE OF FILING OF OFFICIAL TRANSCRIPT of MOTION HEARING (173 pages) held on September 9, 2013, before Judge Richard Schell. Court Reporter: Jerry Kelley, JerryKelleyCRR@aol.com Telephone number: 214−551−5118. <P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.txed.uscourts.gov<P> Transcript may be purchased from the Court Reporter or viewed at the court's public terminal before the deadline for Release of Transcript Restriction. After that date, it may be purchased from the Court Reporter or PACER. Redaction Request due 11/25/2013. Redacted Transcript Deadline set for 12/5/2013. Release of Transcript Restriction set for 1/31/2014. (Entered: 10/30/2013)

11/01/2013

1094

NOTICE by All Defendants Defendants' Notice of Filing Quarterly Monitoring Report−October 2013 (Attachments: # 1 Exhibit Oct. 2013 Quarterly Report, # 2 Exhibit Exhibit Table of Contents, # 3 Exhibit Exhibit 1, # 4 Exhibit Exhibit 2, # 5 Exhibit Exhibit 2 (cont'd), # 6 Exhibit Exhibit 3, # 7 Exhibit Exhibit 4, # 8 Exhibit Exhibit 5, # 9 Exhibit Exhibit 6, # 10 Exhibit Exhibit 7, # 11 Exhibit Exhibit 8, # 12 Exhibit Exhibit 9, # 13 Exhibit Exhibit 10, # 14 Exhibit Exhibit 11, # 15 Exhibit Exhibit 12, # 16 Exhibit Exhibit 13, # 17 Exhibit Exhibit 14, # 18 Exhibit Exhibit 15, # 19 Exhibit Exhibit 16, # 20 Exhibit Exhibit 17, # 21 Exhibit Exhibit 18, # 22 Exhibit Exhibit 19)(Eccles, James) (Entered: 11/01/2013)

11/15/2013 1095 Unopposed MOTION to Seal Document by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Garrigan, Timothy) (Entered: 11/15/2013)

11/15/2013 1096 Unopposed MOTION for Leave to File Excess Pages Plaintiffs' Unopposed Motion to Exceed Page Limit by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Garrigan, Timothy) (Entered: 11/15/2013)

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11/15/2013

1097

SEALED REPLY to Response to Motion re 1033 Opposed SEALED MOTION Plaintiffs' Renewed Motion to Enforce the Provider Supply Corrective Action Order and Related Decree Provisions (Opposed) filed by All Plaintiffs. (Attachments: # 1 Exhibit Plaintiffs Exh 13, # 2 Exhibit Plaintiffs Exh 14, # 3 Exhibit Ptfs Exh 15, part 1, # 4 Exhibit Ptfs Exh 15, part 2, # 5 Exhibit Ptfs Exh 15, part 3, # 6 Exhibit Plaintiffs Exh 16, # 7 Exhibit Plaintiffs' Exh 17, # 8 Exhibit Plaintiffs Exh 18)(Garrigan, Timothy) (Entered: 11/15/2013)

12/11/2013 1098 REPLY to Response to Motion re 1033 Opposed SEALED MOTION Plaintiffs' Renewed Motion to Enforce the Provider Supply Corrective Action Order and Related Decree Provisions (Opposed) filed by All Defendants. (Halpern, Linda) (Entered: 12/11/2013)

12/11/2013 1099 MOTION for Leave to File Excess Pages by All Defendants. (Attachments: # 1 Proposed Order)(Halpern, Linda) (Entered: 12/11/2013)

12/17/2013 1100 Unopposed MOTION for Leave to File Excess Pages by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Garrigan, Timothy) (Entered: 12/17/2013)

12/17/2013

1101

SUR−REPLY to Reply to Response to Motion re 1033 Opposed SEALED MOTION Plaintiffs' Renewed Motion to Enforce the Provider Supply Corrective Action Order and Related Decree Provisions (Opposed) Plaintiffs' Sur−Reply in Opposition to Defendants' Rule 60(b)(5) Motion Regarding Provider Supply (Dkt. 1052)) filed by All Plaintiffs. (Attachments: # 1 Exhibit Suppl Declaration of Sauceda, # 2 Exhibit Declaration of Dailey, # 3 Supplement Suppl to Dailey, # 4 Exhibit Declaration of Sanders, # 5 Exhibit Declaration of White)(Garrigan, Timothy) (Entered: 12/17/2013)

12/18/2013

1102

MOTION to Strike 1101 Sur−Reply to Reply to Response to Motion,, [DEFENDANTS MOTION TO STRIKE PART 1 OF PLAINTIFFS SUR−REPLY AND NEW DECLARATIONS AND ATTACHMENTS TO PLAINTIFFS SUR−REPLY] by All Defendants. (Attachments: # 1 Text of Proposed Order)(Eccles, James) (Entered: 12/18/2013)

12/18/2013 1103 ORDER granting 1100 Motion for Leave to File Excess Pages. Signed by Judge Richard A. Schell on 12/18/13. (cm, ) (Entered: 12/19/2013)

12/18/2013

1104

ORDER granting 1091 Motion for Extension of Time to File, Denying as Moot 1042 Joint MOTION for Extension of Time to File, Denying as Moot 1048 Joint MOTION for Extension By November 15, 2013, Defendants shall have responded to Plaintiffs September 29, 2103 letter and attachments by specifying which issues are agreed and which remain in dispute. Plaintiffs shall not return to work on their disputed motion until after that date. The deadline for a motion disputed or not − shall be January 15, 2014. Signed by Judge Richard A. Schell on 12/18/13. (cm, ) Modified on 12/19/2013 (cm, ). (Entered: 12/19/2013)

12/18/2013 1105 ORDER granting 1092 Motion for Extension of Time to File. Plaintiffs have up to and including November 15, 2013 within which to file their Response/Reply. Defendants have up to and including December 13, 2013 within which to file their Reply. Signed by Judge Richard A. Schell on 12/18/13. (cm, ) (Entered: 12/19/2013)

12/18/2013 1106 ORDER granting 1095 Motion to Seal Document 1052 Sealed Response to Motion,, 1033 Opposed SEALED MOTION Plaintiffs' Renewed Motion to Enforce the Provider Supply Corrective Action Order and Related Decree Provisions (Opposed). Signed by Judge Richard A. Schell on 12/18/13. (cm, ) (Entered: 12/19/2013)

12/18/2013 1107 ORDER granting 1096 Motion for Leave to File Excess Pages. Signed by Judge Richard A. Schell on 12/18/13. (cm, ) (Entered: 12/19/2013)

12/18/2013

1108

ORDER granting 1044 Motion for Extension of Time to File Response/Reply re 1033 Opposed SEALED MOTION Plaintiffs' Renewed Motion to Enforce the Provider Supply Corrective Action Order and Related Decree Provisions (Opposed) Responses due by 8/9/2013. Signed by Judge Richard A. Schell on 12/18/13. (cm, ) (Entered: 12/19/2013)

12/18/2013 1109 ORDER granting 1047 Motion for Leave to File Excess Pages. Signed by Judge Richard A. Schell on 12/18/13. (cm, ) (Entered: 12/19/2013)

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12/18/2013 1110 ORDER granting 1051 Sealed Motion. Signed by Judge Richard A. Schell on 12/18/13. (cm, ) (Entered: 12/19/2013)

12/18/2013 1111 ORDER granting 1086 Motion for Leave to File Excess Pages. Signed by Judge Richard A. Schell on 12/18/13. (cm, ) (Entered: 12/19/2013)

12/18/2013 1112 ORDER granting 1088 Motion for Extension of Time to File Response/Reply. Plaintiffs had up to and including October 30, 2013 within which to file their Response/Reply. Signed by Judge Richard A. Schell on 12/18/13. (cm, ) (Entered: 12/19/2013)

12/18/2013 1113 ORDER granting 1099 Motion for Leave to File Excess Pages. Signed by Judge Richard A. Schell on 12/18/13. (cm, ) (Entered: 12/19/2013)

12/18/2013

1114

MEMORANDUM AND OPINION re: 971 SEALED MOTION to Enforce CAO and Decree, 1023 MOTION to Strike, 1043 Opposed MOTION Pay expert witnesses and 998 SEALED RESPONSE to Motion. Signed by Judge Richard A. Schell on 12/18/13. (cm, ) After considering the briefing and the arguments of both parties and for the reasons set forth herein Plaintiffs Motion for Further Action (Dkt. 971) is DENIED, Defendants Rule 60(b)(5) Motion (Dkt. 998) is GRANTED. Defendants Motion to Strike (Dkt. 1023) is DENIED. Also pending before the court is Plaintiffs Motion to Pay Expert Witnesses (Dkt. 1043), Defendants Response (Dkt. 1045), and Plaintiffs Reply (Dkt. 1046), which is GRANTED. (Entered: 12/19/2013)

12/19/2013

1115

Minute Entry for proceedings held before Judge Richard A. Schell: Motion Hearing held on 12/19/2013 re 1052 MOTION to Vacate filed by All Defendants, 1033 Opposed SEALED MOTION Plaintiffs' Renewed Motion to Enforce the Provider Supply Corrective Action Order and Related Decree Provisions (Opposed) filed by All Plaintiffs. (Court Reporter Jerry Kelley.) (pad, ) (Entered: 12/23/2013)

01/03/2014

1116

RESPONSE to Motion re 1102 MOTION to Strike 1101 Sur−Reply to Reply to Response to Motion,, [DEFENDANTS MOTION TO STRIKE PART 1 OF PLAINTIFFS SUR−REPLY AND NEW DECLARATIONS AND ATTACHMENTS TO PLAINTIFFS SUR−REPLY] Plaintiffs' Response To Defendants' Motion To Strike Part 1 Of Plaintiffs' Sur−Reply And New Declarations And Attachments To Plaintiffs' Sur−Reply (DKT 1102) And Alternative Motion For Leave To File Plaintiffs' Sur−Reply And Evidence filed by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Garrigan, Timothy) (Entered: 01/03/2014)

01/10/2014 1117 NOTICE OF APPEAL as to 1114 Memorandum & Opinion,, by All Plaintiffs. Filing fee $ 505, receipt number 0540−4474256. (Swanson, Jane) (Entered: 01/10/2014)

01/13/2014

1118

REPLY to Response to Motion re 1102 MOTION to Strike 1101 Sur−Reply to Reply to Response to Motion,, [DEFENDANTS MOTION TO STRIKE PART 1 OF PLAINTIFFS SUR−REPLY AND NEW DECLARATIONS AND ATTACHMENTS TO PLAINTIFFS SUR−REPLY] Defendants' Opposition to Plaintiff's "Alternative Motion for Leave to File Plaintiff's Sur−Reply and Evidence" Dkt 1116 filed by All Defendants. (Attachments: # 1 Text of Proposed Order)(Eccles, James) (Entered: 01/13/2014)

01/15/2014

USCA Case Number 14−40048 for 1117 Notice of Appeal filed by All Plaintiffs. (pad, ) (Entered: 01/15/2014)

01/15/2014

1119

Agreed MOTION for Attorney Fees by All Plaintiffs. (Attachments: # 1 Exhibit Ex. 1 Zinn Declaration, # 2 Exhibit Ex. 1A Zinn Time Records, # 3 Exhibit Ex. 1B Zinn Costs and Expenses, # 4 Exhibit Ex. 2 Swanson Declaration, # 5 Exhibit Ex. 2A Swanson Time Records, # 6 Exhibit Ex. 2B Swanson Costs and Expenses, # 7 Exhibit Ex. 3 Garrigan Declaration, # 8 Exhibit Ex. 3A Garrigan Time Records, # 9 Exhibit Ex. 3B Garrigan Expense Records, # 10 Exhibit Ex. 3C Garrigan Resume, # 11 Exhibit Ex. 3D McClain Court Order, # 12 Exhibit Baxter Affidavit, # 13 Exhibit Proposed Class Notice, # 14 Text of Proposed Order)(Swanson, Jane) (Entered: 01/15/2014)

01/15/2014 1120 Opposed MOTION for Attorney Fees Plaintiffs' Contested Motion for Interim Attorneys' Fees for 2012 by All Plaintiffs. (Attachments: # 1 Exhibit Zinn Declaration, # 2 Exhibit Swanson Declaration, # 3 Exhibit Garrigan Declaration, # 4 Text of Proposed Order)(Garrigan, Timothy) (Entered: 01/15/2014)

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01/17/2014 1121 MOTION to Appoint Counsel by All Plaintiffs. (Attachments: # 1 Exhibit Ex. 1 Garrigan Resume, # 2 Text of Proposed Order)(Swanson, Jane) (Entered: 01/17/2014)

01/21/2014 1122 Unopposed MOTION for Leave to File Excess Pages Plaintiffs' Unopposed Motion to Exceed Page Limit by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Garrigan, Timothy) (Entered: 01/21/2014)

01/27/2014 1126 TRANSCRIPT REQUEST by All Plaintiffs Transcript is already on file in Clerk's office. (cm, ) (Entered: 01/31/2014)

01/28/2014 1123 Agreed MOTION Extend Transportation CAO Conference Period re 637 Joint MOTION for Entry of an Agreed Corrective Action Order by All Plaintiffs. (Attachments: # 1 Exhibit Ex. 1 Chart Reflecting Parties' Positions, # 2 Text of Proposed Order)(Swanson, Jane) (Entered: 01/28/2014)

01/31/2014

1124

NOTICE by All Defendants of Filing Jan 2014 Quarterly Monitoring Report (Attachments: # 1 Exhibit Jan 2014 Quarterly Report, # 2 Exhibit Table of Contents, # 3 Exhibit 1, # 4 Exhibit 1 (cont'd), # 5 Exhibit 2, # 6 Exhibit 3, # 7 Exhibit 4, # 8 Exhibit 5, # 9 Exhibit 6, # 10 Exhibit 7, # 11 Exhibit 8, # 12 Exhibit 9, # 13 Exhibit 10)(Eccles, James) (Entered: 01/31/2014)

01/31/2014 1125 NOTICE by All Defendants of Filing Jan. 2014 Quarterly Monitoring Report (cont'd) (Attachments: # 1 Exhibit 11, # 2 Exhibit 12, # 3 Exhibit 13, # 4 Exhibit 14, # 5 Exhibit 15, # 6 Exhibit 16, # 7 Exhibit 17, # 8 Exhibit 18, # 9 Exhibit 19, # 10 Exhibit 20, # 11 Exhibit 21)(Eccles, James) (Entered: 01/31/2014)

02/03/2014

1127

RESPONSE to Motion re 1120 Opposed MOTION for Attorney Fees Plaintiffs' Contested Motion for Interim Attorneys' Fees for 2012 filed by All Defendants. (Attachments: # 1 Exhibit Conference Period Correspondence, # 2 Exhibit 1−10−12 Swanson Letter, # 3 Exhibit Emails re Lagging Counties Deadlines, # 4 Exhibit 1−8−13 Hearing Transcript Excerpts, # 5 Exhibit 1−6−12 Swanson Letter, # 6 Exhibit Jan. and Apr. 2012 QMR Excerpts, # 7 Exhibit Lagging Counties Joint Motion, # 8 Exhibit Swanson Time, # 9 Text of Proposed Order)(Eccles, James) (Entered: 02/03/2014)

02/03/2014 1128 Agreed MOTION for Leave to File Excess Pages by All Defendants. (Attachments: # 1 Text of Proposed Order)(Eccles, James) (Entered: 02/03/2014)

02/05/2014

1129

NOTICE OF FILING OF OFFICIAL TRANSCRIPT of MOTION HEARING (199 pages) held December 19, 2013, before Judge Richard Schell. Court Reporter: Jerry Kelley, Telephone number: 214−551−5118, JerryKelleyCRR@aol.com. <P>NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.txed.uscourts.gov<P> Transcript may be purchased from the court reporter or viewed at the court's public terminal in the courthouse before the deadline for Release of Transcript Restriction. After that date it may be purchased from the Court Reporter or PACER. Redaction Request due 3/3/2014. Redacted Transcript Deadline set for 3/13/2014. Release of Transcript Restriction set for 5/9/2014. (Entered: 02/05/2014)

02/12/2014

1130

Unopposed MOTION for Extension of Time to File Response/Reply as to 1120 Opposed MOTION for Attorney Fees Plaintiffs' Contested Motion for Interim Attorneys' Fees for 2012 Plaintiffs' Unopposed Motion for Additional Time and Pages Regarding 2012 Attorneys' Fees by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Garrigan, Timothy) (Entered: 02/12/2014)

02/28/2014

1131

REPLY to Response to Motion re 1120 Opposed MOTION for Attorney Fees Plaintiffs' Contested Motion for Interim Attorneys' Fees for 2012 Plaintiffs' Reply in Support of Plaintiffs' Contested Motion for Interim Attorneys' Fees for 2012 (Dkt. 1127) filed by All Plaintiffs. (Attachments: # 1 Exhibit 1/8/13 hearing transcript, # 2 Exhibit 1/4/12 letter)(Garrigan, Timothy) (Entered: 02/28/2014)

02/28/2014 1132 Unopposed MOTION for Leave to File Excess Pages Plaintiffs' Unopposed Motion to Exceed Page Limit by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Garrigan, Timothy) (Entered: 02/28/2014)

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03/10/2014 1133 SUR−REPLY to Reply to Response to Motion re 1120 Opposed MOTION for Attorney Fees Plaintiffs' Contested Motion for Interim Attorneys' Fees for 2012 filed by All Defendants. (Eccles, James) (Entered: 03/10/2014)

03/10/2014 1134 Unopposed MOTION for Leave to File , MOTION for Leave to File Excess Pages by All Defendants. (Attachments: # 1 Text of Proposed Order)(Eccles, James) (Entered: 03/10/2014)

03/19/2014 1135 Joint MOTION to Vacate the CAO: Toll Free Numbers and Para. 247 of the Consent Decree regarding Three of the Four Toll Free Lines and Part of the Fourth Line by All Defendants. (Attachments: # 1 Text of Proposed Order)(Eccles, James) (Entered: 03/19/2014)

03/28/2014 1136 ***FILED IN ERROR. TO BE REFILED. PLEASE IGNORE.*** MOTION to Vacate by All Defendants. (Attachments: # 1 Exhibit Index, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Halpern, Linda) Modified on 3/31/2014 (cm, ). (Entered: 03/28/2014)

03/28/2014 1137 ***FILED IN ERROR. TO BE REFILED. PLEASE IGNORE.*** MOTION to Vacate 1136 MOTION to Vacate by All Defendants. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Halpern, Linda) Modified on 3/31/2014 (cm, ). (Entered: 03/28/2014)

03/28/2014 1138 ***FILED IN ERROR. TO BE REFILED. PLEASE IGNORE.*** MOTION to Vacate 1136 MOTION to Vacate by All Defendants. (Attachments: # 1 Exhibit)(Halpern, Linda) Modified on 3/31/2014 (cm, ). (Entered: 03/28/2014)

03/28/2014 1139 ***FILED IN ERROR. TO BE REFILED. PLEASE IGNORE.*** MOTION to Vacate 1136 MOTION to Vacate by All Defendants. (Attachments: # 1 Exhibit)(Halpern, Linda) Modified on 3/31/2014 (cm, ). (Entered: 03/28/2014)

03/28/2014 1140 ***FILED IN ERROR. TO BE REFILED. PLEASE IGNORE.*** MOTION to Vacate 1136 MOTION to Vacate by All Defendants. (Attachments: # 1 Exhibit)(Halpern, Linda) Modified on 3/31/2014 (cm, ). (Entered: 03/28/2014)

03/28/2014 1141 ***FILED IN ERROR. TO BE REFILED. PLEASE IGNORE.*** MOTION to Vacate 1136 MOTION to Vacate by All Defendants. (Attachments: # 1 Exhibit)(Halpern, Linda) Modified on 3/31/2014 (cm, ). (Entered: 03/28/2014)

03/28/2014 1142 ***FILED IN ERROR. TO BE REFILED. PLEASE IGNORE.*** MOTION to Vacate 1136 MOTION to Vacate by All Defendants. (Attachments: # 1 Exhibit)(Halpern, Linda) Modified on 3/31/2014 (cm, ). (Entered: 03/28/2014)

03/28/2014

1143

***FILED IN ERROR. TO BE REFILED. PLEASE IGNORE.*** MOTION to Vacate 1136 MOTION to Vacate by All Defendants. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit)(Halpern, Linda) Modified on 3/31/2014 (cm, ). (Entered: 03/28/2014)

03/28/2014 1144 ***FILED IN ERROR. TO BE REFILED. PLEASE IGNORE.*** MOTION to Vacate 1136 MOTION to Vacate by All Defendants. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit)(Halpern, Linda) Modified on 3/31/2014 (cm, ). (Entered: 03/28/2014)

03/28/2014 1145 ***FILED IN ERROR. TO BE REFILED. PLEASE IGNORE.*** MOTION to Vacate 1136 MOTION to Vacate Proposed Order by All Defendants. (Halpern, Linda) Modified on 3/31/2014 (cm, ). (Entered: 03/28/2014)

03/28/2014 1146 ***FILED IN ERROR. TO BE REFILED. PLEASE IGNORE.*** MOTION for Leave to File Excess Pages by All Defendants. (Attachments: # 1 Text of Proposed Order)(Halpern, Linda) Modified on 3/31/2014 (cm, ). (Entered: 03/28/2014)

03/31/2014

Certified and Electronically Transmitted Record on Appeal to US Court of Appeals re 1117 Notice of Appeal (pad, ) (Entered: 03/31/2014)

03/31/2014

***FILED IN ERROR. Document #'s 1136 THROUGH 1146, Motions to Vacate to be Refiled in Compliance with LR CV−5(a)(6) regarding Exhibits and using the "Additional Attachments to Main Document" Event Code. PLEASE IGNORE.***

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(cm, ) (Entered: 03/31/2014)

03/31/2014 1147 MOTION to Vacate CAO on Health Care Provider Training and Related Consent Decree Provisions by All Defendants. (Attachments: # 1 Exhibit Exhibit List, # 2 Exhibit CAO Provider Training, # 3 Exhibit Declaration M. Bruch, # 4 Exhibit Declaration W. Belvin)(Halpern, Linda) (Entered: 03/31/2014)

03/31/2014

1148

Additional Attachments to Main Document: 1147 MOTION to Vacate CAO on Health Care Provider Training and Related Consent Decree Provisions.. (Attachments: # 1 Exhibit Ex. 4 Compilation of QMRs, # 2 Exhibit Ex. 5 CAO & CD Requriements and Evidence Table, # 3 Exhibit Ex, 6(a) − 2008 Annual Summary of Training Report)(Halpern, Linda) (Entered: 03/31/2014)

03/31/2014 1149 Additional Attachments to Main Document: 1147 MOTION to Vacate CAO on Health Care Provider Training and Related Consent Decree Provisions.. (Attachments: # 1 Exhibit 6(b) 2009 Annual Summ of Train Rpt)(Halpern, Linda) (Entered: 03/31/2014)

03/31/2014 1150 Additional Attachments to Main Document: 1147 MOTION to Vacate CAO on Health Care Provider Training and Related Consent Decree Provisions.. (Attachments: # 1 Exhibit 6(b) 2009 Ann Summ Train Rpt part 2)(Halpern, Linda) (Entered: 03/31/2014)

03/31/2014 1151 Additional Attachments to Main Document: 1147 MOTION to Vacate CAO on Health Care Provider Training and Related Consent Decree Provisions.. (Attachments: # 1 Exhibit 6(c) − 2010 Annual Summary of Training Report)(Halpern, Linda) (Entered: 03/31/2014)

03/31/2014 1152 Additional Attachments to Main Document: 1147 MOTION to Vacate CAO on Health Care Provider Training and Related Consent Decree Provisions.. (Attachments: # 1 Exhibit 6(d) 2011 Ann Summ Train Rpt part 1)(Halpern, Linda) (Entered: 03/31/2014)

03/31/2014 1153 Additional Attachments to Main Document: 1147 MOTION to Vacate CAO on Health Care Provider Training and Related Consent Decree Provisions.. (Attachments: # 1 Exhibit 6(d) 2011 Ann Summ Train Rpt part 2)(Halpern, Linda) (Entered: 03/31/2014)

03/31/2014

1154

Additional Attachments to Main Document: 1147 MOTION to Vacate CAO on Health Care Provider Training and Related Consent Decree Provisions.. (Attachments: # 1 Exhibit 6(e) 2012 Annual Summary of Training Report, # 2 Exhibit 6(f) 2013 Annual Summary of Training Report, # 3 Exhibit 7 Cumulative Utilization by Providers, # 4 Exhibit 8 Plaintiffs February 14, 2014 Letter, # 5 Exhibit 9 First Dental Home Training 2009 − 2013, # 6 Exhibit 10 Dental Services 2009 − 2013, # 7 Exhibit 11 Declaration of Andrea Daniell, # 8 Exhibit 12 May 1996 Quarterly Monitoring Report, # 9 Exhibit 13 Contract Excerpts MCO Training, # 10 Exhibit 14 Plaintiffs April 20, 2012 Letter, # 11 Exhibit 15 Declaration of Melinda Metteauer)(Halpern, Linda) (Entered: 03/31/2014)

03/31/2014

1155

Additional Attachments to Main Document: 1147 MOTION to Vacate CAO on Health Care Provider Training and Related Consent Decree Provisions.. (Attachments: # 1 Exhibit 16 SFY 2007 2014 OPE Module Reports, # 2 Exhibit 17 Contract Excerpts Head Start, # 3 Exhibit 18 THSteps Monthly Head Start Reports, # 4 Exhibit 19 UMMC Section 8.1.20 General Reporting Requirements, # 5 Exhibit 20 Plaintiffs March 18, 2014 Letter, # 6 Exhibit 21 Provider Training Questionnaire, # 7 Text of Proposed Order)(Halpern, Linda) (Entered: 03/31/2014)

03/31/2014 1156 Unopposed MOTION for Leave to File Excess Pages by All Defendants. (Attachments: # 1 Text of Proposed Order)(Halpern, Linda) (Entered: 03/31/2014)

04/03/2014

Supplemental Record on Appeal electronically transmitted to US Court of Appeals re 1117 Notice of Appeal (pad, ) (Entered: 04/03/2014)

04/04/2014

1157

Opposed MOTION Abate Proceedings re 1147 MOTION to Vacate CAO on Health Care Provider Training and Related Consent Decree Provisions Plaintiffs' Opposed Motion to Abate Proceedings Re: Defendants' Rule 60(B)(5) Motion to Vacate the Corrective Action Order On Healthcare Provider Training And Related Consent Decree Provisions (Dkt 1147) by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Garrigan, Timothy) (Entered: 04/04/2014)

04/08/2014 1158 RESPONSE in Opposition re 1147 MOTION to Vacate CAO on Health Care Provider Training and Related Consent Decree Provisions filed by All Defendants.

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(Attachments: # 1 Exhibit Attachment A − 12−5−13 Letter, # 2 Exhibit Attachment B − 2−14−14 Letter, # 3 Exhibit Attachment C − 3−18−14 Letter, # 4 Text of Proposed Order)(Halpern, Linda) (Entered: 04/08/2014)

04/11/2014

1159

Joint MOTION to Substitute Party Carla Frew for Plaintiff Linda Frew, Kyle J. Janek, M.D. for Defendant Thomas Suehs, and David L. Lackey, M.D. for Defendant Eduardo J. Sanchez, M.D., M.P.H., Joint MOTION to Dismiss Defendant Wertz, Joint MOTION to Amend/Correct The Case Caption by All Defendants. (Attachments: # 1 Text of Proposed Order Granting Joint Motion to Substitute Parties, Dismiss Defendant Wertz, and Amend the Case Caption)(Halpern, Linda) (Entered: 04/11/2014)

04/18/2014

1160

REPLY to Response to Motion re 1157 Opposed MOTION Abate Proceedings re 1147 MOTION to Vacate CAO on Health Care Provider Training and Related Consent Decree Provisions Plaintiffs' Opposed Motion to Abate Proceedings Re: Defendants' Rule 60(B)(5) Motion to Plaintiffs' Reply In Support of Plaintiffs' Motion To Abate (DKT 1157) filed by All Plaintiffs. (Garrigan, Timothy) (Entered: 04/18/2014)

04/28/2014

1161

SUR−REPLY to Reply to Response to Motion re 1157 Opposed MOTION Abate Proceedings re 1147 MOTION to Vacate CAO on Health Care Provider Training and Related Consent Decree Provisions Plaintiffs' Opposed Motion to Abate Proceedings Re: Defendants' Rule 60(B)(5) Motion to filed by All Defendants. (Eccles, James) (Entered: 04/28/2014)

04/30/2014

1162

NOTICE by All Defendants of Filing of April 2014 QMR (Attachments: # 1 Exhibit QMR, # 2 Exhibit Exhibit TOC, # 3 Exhibit 1, # 4 Exhibit 2 (1), # 5 Exhibit 2 (2), # 6 Exhibit 3, # 7 Exhibit 4, # 8 Exhibit 5, # 9 Exhibit 6, # 10 Exhibit 7 (1), # 11 Exhibit 7 (2), # 12 Exhibit 8, # 13 Exhibit 9, # 14 Exhibit 10, # 15 Exhibit 11, # 16 Exhibit 12, # 17 Exhibit 13, # 18 Exhibit 14, # 19 Exhibit 15, # 20 Exhibit 16, # 21 Exhibit 17)(Eccles, James) (Entered: 04/30/2014)

05/01/2014 1163 Joint MOTION for Extension of Time to File Motion Concerning Interim Fees (2013) by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Motion for Extension Re 2013 Interim Fees)(Zinn, Susan) (Entered: 05/01/2014)

05/13/2014 1164 Agreed MOTION Set Provider Supply Filing Deadlines re 1147 MOTION to Vacate CAO on Health Care Provider Training and Related Consent Decree Provisions by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 05/13/2014)

05/20/2014 1165 Unopposed MOTION for Extension of Time to File a Rule 60(b)(5) Motion to Vacate the CAO: Transportation Program, and Related Consent Decree Paragraphs by All Defendants. (Attachments: # 1 Text of Proposed Order)(Halpern, Linda) (Entered: 05/20/2014)

05/29/2014

1166

RESPONSE to Motion re 1147 MOTION to Vacate CAO on Health Care Provider Training and Related Consent Decree Provisions filed by All Plaintiffs. (Attachments: # 1 Exhibit 1 Checkup Completeness Study, # 2 Exhibit 2 Summary of Quality Trends, # 3 Exhibit 3 Provider Survey Report, # 4 Exhibit 4 HMO Checkup Reports, # 5 Exhibit 5 Comprehensive Care Program Manual Excerpt, # 6 Text of Proposed Order)(Swanson, Jane) (Entered: 05/29/2014)

06/11/2014 1167 Unopposed MOTION to Seal DEFENDANTS MOTION TO FILE UNDER SEAL (UNOPPOSED) by All Defendants. (Attachments: # 1 Text of Proposed Order)(Halpern, Linda) (Entered: 06/11/2014)

06/11/2014 1168 Unopposed MOTION for Leave to File Excess Pages DEFENDANTS UNOPPOSED MOTION TO EXCEED PAGE LIMIT by All Defendants. (Attachments: # 1 Text of Proposed Order)(Halpern, Linda) (Entered: 06/11/2014)

06/11/2014

1169

SEALED MOTION DEFENDANTS RULE 60(B)(5) MOTION TO VACATE THE TRANSPORTATION PROGRAM CORRECTIVE ACTION ORDER AND RELATED CONSENT DECREE PROVISIONS (SEALED) by All Defendants. (Attachments: # 1 Exhibit 1 − DKT 637−11−CAO Transportation Program, # 2 Exhibit 2 − Declaration of Joey Herrera, # 3 Exhibit 3 − Dimitria Pope)(Halpern, Linda) (Entered: 06/11/2014)

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06/11/2014

1170

SEALED ADDITIONAL ATTACHMENTS to Main Document: 1169 SEALED MOTION DEFENDANTS RULE 60(B)(5) MOTION TO VACATE THE TRANSPORTATION PROGRAM CORRECTIVE ACTION ORDER AND RELATED CONSENT DECREE PROVISIONS (SEALED). (Attachments: # 1 Exhibit 4 − Declaration of Steven Feist)(Halpern, Linda) (Entered: 06/11/2014)

06/11/2014

1171

SEALED ADDITIONAL ATTACHMENTS to Main Document: 1169 SEALED MOTION DEFENDANTS RULE 60(B)(5) MOTION TO VACATE THE TRANSPORTATION PROGRAM CORRECTIVE ACTION ORDER AND RELATED CONSENT DECREE PROVISIONS (SEALED). (Attachments: # 1 Exhibit 5 − Declaration of Valorie Williams, # 2 Exhibit 6 − MTM Contract Deliverables, # 3 Exhibit 7 − LogistiCare Contract Deliverables)(Halpern, Linda) (Entered: 06/11/2014)

06/11/2014

1172

SEALED ADDITIONAL ATTACHMENTS to Main Document: 1169 SEALED MOTION DEFENDANTS RULE 60(B)(5) MOTION TO VACATE THE TRANSPORTATION PROGRAM CORRECTIVE ACTION ORDER AND RELATED CONSENT DECREE PROVISIONS (SEALED). (Attachments: # 1 Exhibit 8 − Declaration of Shannon Pickett, # 2 Exhibit 9 − Declaration of Dawn Rehbein, # 3 Exhibit 10 − MCO Declarations, # 4 Exhibit 11 − CAO and CD Requirements and Evidence Table, # 5 Exhibit 12 − Declaration of Michelle Long)(Halpern, Linda) (Entered: 06/11/2014)

06/11/2014

1173

SEALED ADDITIONAL ATTACHMENTS to Main Document: 1169 SEALED MOTION DEFENDANTS RULE 60(B)(5) MOTION TO VACATE THE TRANSPORTATION PROGRAM CORRECTIVE ACTION ORDER AND RELATED CONSENT DECREE PROVISIONS (SEALED). (Attachments: # 1 Exhibit 13 − Evaluations of TMP 2007−09 − Part 1)(Halpern, Linda) (Entered: 06/11/2014)

06/11/2014

1174

SEALED ADDITIONAL ATTACHMENTS to Main Document: 1169 SEALED MOTION DEFENDANTS RULE 60(B)(5) MOTION TO VACATE THE TRANSPORTATION PROGRAM CORRECTIVE ACTION ORDER AND RELATED CONSENT DECREE PROVISIONS (SEALED). (Attachments: # 1 Exhibit 13 − Evaluations of TMP 2007−09 − Part 2)(Halpern, Linda) (Entered: 06/11/2014)

06/11/2014

1175

SEALED ADDITIONAL ATTACHMENTS to Main Document: 1169 SEALED MOTION DEFENDANTS RULE 60(B)(5) MOTION TO VACATE THE TRANSPORTATION PROGRAM CORRECTIVE ACTION ORDER AND RELATED CONSENT DECREE PROVISIONS (SEALED). (Attachments: # 1 Exhibit 14 − Aug 2013 Eval TX Med Trans Prog 2nd Study part 1)(Halpern, Linda) (Entered: 06/11/2014)

06/11/2014

1176

SEALED ADDITIONAL ATTACHMENTS to Main Document: 1169 SEALED MOTION DEFENDANTS RULE 60(B)(5) MOTION TO VACATE THE TRANSPORTATION PROGRAM CORRECTIVE ACTION ORDER AND RELATED CONSENT DECREE PROVISIONS (SEALED). (Attachments: # 1 Exhibit 14 − Aug 2013 Eval TX Med Trans Prog 2nd Study part 2)(Halpern, Linda) (Entered: 06/11/2014)

06/11/2014

1177

SEALED ADDITIONAL ATTACHMENTS to Main Document: 1169 SEALED MOTION DEFENDANTS RULE 60(B)(5) MOTION TO VACATE THE TRANSPORTATION PROGRAM CORRECTIVE ACTION ORDER AND RELATED CONSENT DECREE PROVISIONS (SEALED). (Attachments: # 1 Exhibit 15 − Declaration of Elsa Gauna)(Halpern, Linda) (Entered: 06/11/2014)

06/11/2014

1178

SEALED ADDITIONAL ATTACHMENTS to Main Document: 1169 SEALED MOTION DEFENDANTS RULE 60(B)(5) MOTION TO VACATE THE TRANSPORTATION PROGRAM CORRECTIVE ACTION ORDER AND RELATED CONSENT DECREE PROVISIONS (SEALED). (Attachments: # 1 Exhibit 16 − Declaration of Melinda Metteauer Part 1)(Halpern, Linda) (Entered: 06/11/2014)

06/11/2014

1179

SEALED ADDITIONAL ATTACHMENTS to Main Document: 1169 SEALED MOTION DEFENDANTS RULE 60(B)(5) MOTION TO VACATE THE TRANSPORTATION PROGRAM CORRECTIVE ACTION ORDER AND RELATED CONSENT DECREE PROVISIONS (SEALED). (Attachments: # 1 Exhibit 16 − Declaration of Melinda Metteauer Part 2)(Halpern, Linda) (Entered: 06/11/2014)

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06/11/2014

1180

SEALED ADDITIONAL ATTACHMENTS to Main Document: 1169 SEALED MOTION DEFENDANTS RULE 60(B)(5) MOTION TO VACATE THE TRANSPORTATION PROGRAM CORRECTIVE ACTION ORDER AND RELATED CONSENT DECREE PROVISIONS (SEALED). (Attachments: # 1 Exhibit 17 − Declaration of Andrea Daniell)(Halpern, Linda) (Entered: 06/11/2014)

06/11/2014

1181

SEALED ADDITIONAL ATTACHMENTS to Main Document: 1169 SEALED MOTION DEFENDANTS RULE 60(B)(5) MOTION TO VACATE THE TRANSPORTATION PROGRAM CORRECTIVE ACTION ORDER AND RELATED CONSENT DECREE PROVISIONS (SEALED). (Attachments: # 1 Exhibit 18 − Declaration of Margaret Bruch)(Halpern, Linda) (Entered: 06/11/2014)

06/11/2014

1182

SEALED ADDITIONAL ATTACHMENTS to Main Document: 1169 SEALED MOTION DEFENDANTS RULE 60(B)(5) MOTION TO VACATE THE TRANSPORTATION PROGRAM CORRECTIVE ACTION ORDER AND RELATED CONSENT DECREE PROVISIONS (SEALED). (Attachments: # 1 Exhibit 19 − Nov. 1999 Final Report on MTP − part 1)(Halpern, Linda) (Entered: 06/11/2014)

06/11/2014

1183

SEALED ADDITIONAL ATTACHMENTS to Main Document: 1169 SEALED MOTION DEFENDANTS RULE 60(B)(5) MOTION TO VACATE THE TRANSPORTATION PROGRAM CORRECTIVE ACTION ORDER AND RELATED CONSENT DECREE PROVISIONS (SEALED). (Attachments: # 1 Exhibit 19 − Nov. 1999 Final Report on MTP − part 2)(Halpern, Linda) (Entered: 06/11/2014)

06/11/2014

1184

SEALED ADDITIONAL ATTACHMENTS to Main Document: 1169 SEALED MOTION DEFENDANTS RULE 60(B)(5) MOTION TO VACATE THE TRANSPORTATION PROGRAM CORRECTIVE ACTION ORDER AND RELATED CONSENT DECREE PROVISIONS (SEALED). (Attachments: # 1 Exhibit 20 − 1995 Lawsuit Action Items Excerpt, # 2 Exhibit 21 − Plaintiffs April 20 2012 Letter, # 3 Exhibit 22 − April 2014 QMR MCO Act. Rep. Para. 236, # 4 Text of Proposed Order 2014.06.11 MTP 60b5 Motion Proposed Order)(Halpern, Linda) (Entered: 06/11/2014)

06/13/2014 1185 Joint MOTION for Leave to File Motion for Extension by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Permission to File)(Zinn, Susan) (Entered: 06/13/2014)

06/13/2014 1186 Joint MOTION for Extension of Time to File Motion for 2013 Interim Fees by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Extension of Time to File)(Zinn, Susan) (Entered: 06/13/2014)

06/18/2014

1187

Joint MOTION Scheduling re: Defends' MTP Motion to Vacate re 1169 SEALED MOTION DEFENDANTS RULE 60(B)(5) MOTION TO VACATE THE TRANSPORTATION PROGRAM CORRECTIVE ACTION ORDER AND RELATED CONSENT DECREE PROVISIONS (SEALED) by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 06/18/2014)

06/18/2014 1188 Joint MOTION to Stay Paragraphs 223−229 of the Consent Decree by All Defendants. (Attachments: # 1 Text of Proposed Order)(Halpern, Linda) (Entered: 06/18/2014)

06/23/2014 1189 Unopposed MOTION to Withdraw Counsel Susan Zinn by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Withdraw)(Zinn, Susan) (Entered: 06/23/2014)

06/30/2014

1190

REPLY to Response to Motion re 1147 MOTION to Vacate CAO on Health Care Provider Training and Related Consent Decree Provisions Defendants' Reply In Support of Their Rule 60(B)(5) Motion To Vacate The Corrective Action Order On Health Care Provider Training And Related Consent Decree Provisions filed by All Defendants. (Halpern, Linda) (Entered: 06/30/2014)

06/30/2014 1191 MOTION for Hearing re 1147 MOTION to Vacate CAO on Health Care Provider Training and Related Consent Decree Provisions LR CV−7(g) Request For Oral Hearing Regarding Pending Motions On Health Care Provider Training by All Defendants. (Halpern, Linda) (Entered: 06/30/2014)

07/31/2014 1192 Joint MOTION for Extension of Time to File for 2013 Fees, Costs and Expenses by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Garrigan, Timothy) (Entered: 07/31/2014)

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07/31/2014 1193 SUR−REPLY to Reply to Response to Motion re 1147 MOTION to Vacate CAO on Health Care Provider Training and Related Consent Decree Provisions filed by All Plaintiffs. (Swanson, Jane) (Entered: 07/31/2014)

07/31/2014 1194 Agreed MOTION for Leave to File Excess Pages by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 07/31/2014)

07/31/2014

1195

NOTICE by All Defendants of Filing Quarterly Monitoring Report July 2014 (Attachments: # 1 Exhibit July 2014 QMR, # 2 Exhibit Exhibit List, # 3 Exhibit 1, # 4 Exhibit 1 (part 2), # 5 Exhibit 2, # 6 Exhibit 3, # 7 Exhibit 4, # 8 Exhibit 5, # 9 Exhibit 6, # 10 Exhibit 7, # 11 Exhibit 8, # 12 Exhibit 9, # 13 Exhibit 10, # 14 Exhibit 11, # 15 Exhibit 12, # 16 Exhibit 13, # 17 Exhibit 14, # 18 Exhibit 15)(Eccles, James) (Entered: 07/31/2014)

08/06/2014

1196

Joint MOTION for Extension of Time to File Response/Reply as to 1169 SEALED MOTION DEFENDANTS RULE 60(B)(5) MOTION TO VACATE THE TRANSPORTATION PROGRAM CORRECTIVE ACTION ORDER AND RELATED CONSENT DECREE PROVISIONS (SEALED) by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 08/06/2014)

08/07/2014 1197 NOTICE of Attorney Appearance by Jonathan Franklin Mitchell on behalf of All Defendants (Mitchell, Jonathan) (Entered: 08/07/2014)

08/14/2014

1198

ORDER GRANTING PLAINTIFFFS UNOPPOSED MOTION TO PERMIT COUNSEL SUSAN F. ZINN TO WITHDRAW re 1189 Unopposed MOTION to Withdraw Counsel Susan Zinn filed by All Plaintiffs, Attorney Susan Finkelstein Zinn terminated. Signed by Judge Richard A. Schell on 8/14/14. (cm, ) (Entered: 08/15/2014)

08/20/2014 1199 ORDER granting 1119 Motion for Attorney Fees. Signed by Judge Richard A. Schell on 8/20/14. (cm, ) (Entered: 08/20/2014)

08/20/2014 1200 ORDER granting 1121 UNOPPOSED MOTION TO DESIGNATE LEAD COUNSEL. Timothy B. Garrigan is designated as lead counsel for the Plaintiff class. Signed by Judge Richard A. Schell on 8/20/14. (cm, ) (Entered: 08/20/2014)

08/20/2014 1201 ORDER granting 1122 Motion for Leave to File Excess Pages. Signed by Judge Richard A. Schell on 8/20/14. (cm, ) (Entered: 08/20/2014)

08/20/2014

1202

ORDER granting 1123 MOTION TO EXTEND THE CONFERENCE PERIOD FOR THE CORRECTIVE ACTION ORDER: TRANSPORTATION PROGRAM [TRANSPORTATION CAO](Dkt#637−12). The parties conference period concerning the Transportation CAO (Dkt#637−12) is extended from January 30, 2014 to April 30, 2014. Signed by Judge Richard A. Schell on 8/20/14. (cm, ) (Entered: 08/20/2014)

08/20/2014 1203 ORDER granting 1128 Motion for Leave to File Excess Pages. Signed by Judge Richard A. Schell on 8/20/14. (cm, ) (Entered: 08/20/2014)

08/20/2014 1204 ORDER granting 1130 Motion for Extension of Time to File. Signed by Judge Richard A. Schell on 8/20/14. (cm, ) (Entered: 08/20/2014)

08/20/2014 1205 ORDER granting 1132 Motion for Leave to File Excess Pages. Signed by Judge Richard A. Schell on 8/20/14. (cm, ) (Entered: 08/20/2014)

08/20/2014 1206 ORDER granting 1134 UNOPPOSED MOTION TO EXCEED PAGE LIMIT. Signed by Judge Richard A. Schell on 8/20/14. (cm, ) (Entered: 08/20/2014)

08/20/2014

1207

ORDER granting 1135 JOINT MOTION TO VACATE THE CORRECTIVE ACTION ORDER: TOLL FREE NUMBERS AND PARAGRAPH 247 OF THE CONSENT DECREE REGARDING THREE OF THE FOUR TOLL FREE LINES AND PART OF THE FOURTH LINE. Signed by Judge Richard A. Schell on 8/20/14. (cm, ) (Entered: 08/21/2014)

08/20/2014

1208

ORDER granting 1156 Motion for Leave to File Excess Pages. Defendants may file Defendants Rule 60(b)(5) Motion to Vacate the Corrective Action Order on Health Care Provider Training and Related Consent Decree Provisions, and related exhibits, in excess of the page limit for responses set forth in the local rules. Signed by Judge Richard A. Schell on 8/20/14. (cm, ) (Entered: 08/21/2014)

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08/20/2014 1209 ORDER granting 1159 JOINT MOTION TO SUBSTITUTE PARTIES, DISMISS DEFENDANT WERTZ, AND AMEND THE CASE CAPTION. Linda Wertz (Texas State Medicaid Director) terminated. Signed by Judge Richard A. Schell on 8/20/14. (cm, ) (Entered: 08/21/2014)

08/20/2014

1210

ORDER granting 1163 JOINT MOTION FOR EXTENSION OF TIME: 2013 INTERIM ATTORNEYS FEES, COSTS AND EXPENSES. By May 15, 2014, Defendants SHALL respond to Plaintiffs written request for 2013 interim attorneys fees, costs and expenses. The deadline for a motion disputed or not was July 15, 2014. Signed by Judge Richard A. Schell on 8/20/14. (cm, ) (Entered: 08/21/2014)

08/20/2014

1211

ORDER granting 1164 Motion. Plaintiffs shall have filed their Response in Opposition to Defendants Motion to Vacate the Provider Training CAO and Related Decree Provisions (Dkt#1147) on or before May 30, 2014, and Defendants Reply thereto was due on June 30, 2014 and Plaintiffs Sur−reply due on July 31, 2014. Signed by Judge Richard A. Schell on 8/20/14. (cm, ) (Entered: 08/21/2014)

08/20/2014 1212 ORDER granting 1167 Motion to Seal. Defendants may file their Rule 60(b)(5) Motion To Vacate The Transportation Program Corrective Action Order And Related Consent Decree Provisions, and associated exhibits, under seal. Signed by Judge Richard A. Schell on 8/20/14. (cm, ) (Entered: 08/21/2014)

08/20/2014 1213 ORDER granting 1165 Motion for Extension of Time to File. Defendants may file, on or before August 15, 2014, their Rule 60(b)(5) Motion to Vacate the CAO: Transportation Program, and Related Consent Decree Paragraphs. Signed by Judge Richard A. Schell on 8/20/14. (cm, ) (Entered: 08/21/2014)

08/20/2014 1214 ORDER granting 1168 Motion for Leave to File Excess Pages. Signed by Judge Richard A. Schell on 8/20/14. (cm, ) (Entered: 08/21/2014)

08/20/2014 1215 ORDER granting 1185 MOTION FOR PERMISSION TO FILE FIRST AMENDED JOINT MOTION FOR EXTENSION OF TIME: 2013 INTERIM ATTORNEYS FEES, COSTS AND EXPENSES. Signed by Judge Richard A. Schell on 8/20/14. (cm, ) (Entered: 08/21/2014)

08/20/2014 1216 ORDER granting 1186 Motion for Extension of Time to File. By May 15, 2014, Defendants SHALL respond to Plaintiffs written request for 2013 interim attorneys fees, costs and expenses. The deadline for a motion disputed or not was July 31, 2014. Signed by Judge Richard A. Schell on 8/20/14. (cm, ) (Entered: 08/21/2014)

08/20/2014

1217

ORDER granting 1187 JOINT MOTION CONCERNING SCHEDULING RE: DEFENDANTS MOTION TO VACATE THE TRANSPORTATION PROGRAM CORRECTIVE ACTION ORDER (CAO) AND RELATED CONSENT DECREE PROVISIONS. Signed by Judge Richard A. Schell on 8/20/14. (cm, ) (Entered: 08/21/2014)

08/20/2014

1218

ORDER granting 1188 JOINT MOTION FOR STAY OF PARAGRAPHS 223−229 OF THE CONSENT DECREE. The obligations that Plaintiffs argue Defendants would otherwise have under Paragraphs 223−229 of the Consent Decree are hereby stayed until June 30, 2015. Signed by Judge Richard A. Schell on 8/20/14. (cm, ) (Entered: 08/21/2014)

08/20/2014 1219 ORDER granting 1192 SECOND JOINT MOTION FOR EXTENSION. Signed by Judge Richard A. Schell on 8/20/14. (cm, ) (Entered: 08/21/2014)

08/20/2014 1220 ORDER granting 1194 Motion for Leave to File Excess Pages. Signed by Judge Richard A. Schell on 8/20/14. (cm, ) (Entered: 08/21/2014)

08/20/2014

1221

ORDER granting 1196 Motion for Extension of Time to File Response/Reply re 1169 SEALED MOTION DEFENDANTS RULE 60(B)(5) MOTION TO VACATE THE TRANSPORTATION PROGRAM CORRECTIVE ACTION ORDER AND RELATED CONSENT DECREE PROVISIONS (SEALED). Responses due by 8/22/2014. Replies due by 9/22/2014. Signed by Judge Richard A. Schell on 8/20/14. (cm, ) (Entered: 08/21/2014)

08/20/2014 1222 ORDER Setting Hearing on Motion 1147 MOTION to Vacate CAO on Health Care Provider Training and Related Consent Decree Provisions, :( Motion Hearing set for 1/16/2015 09:00 AM in Ctrm 105 (Plano) before Judge Richard A. Schell.),

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GRANTING re 1191 MOTION for Hearing LR CV−7(g) Request For Oral Hearing Regarding Pending Motions On Health Care Provider Training filed by All Defendants. Signed by Judge Richard A. Schell on 8/20/14. (cm, ) (Entered: 08/21/2014)

08/22/2014 1223 Unopposed MOTION for Leave to File Excess Pages by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Garrigan, Timothy) (Entered: 08/22/2014)

08/22/2014

1224

RESPONSE in Opposition re 1169 SEALED MOTION DEFENDANTS RULE 60(B)(5) MOTION TO VACATE THE TRANSPORTATION PROGRAM CORRECTIVE ACTION ORDER AND RELATED CONSENT DECREE PROVISIONS (SEALED) filed by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Garrigan, Timothy) (Entered: 08/22/2014)

08/25/2014

1225

MOTION to Vacate The Dental Assessment Portion of the Health Outcomes Measures and Dental Assessment Corrective Action Order, and Related Consent Decree Provisions by All Defendants. (Attachments: # 1 Exhibit Exhibit List, # 2 Exhibit CAO: Health Outcome Measures and Dental Assessment, # 3 Exhibit Declaration of Michelle Long, # 4 Exhibit Declaration of Linda Altenhoff, DDS, # 5 Exhibit Declaration of Vy Nguyen, DDS, MPH, # 6 Exhibit Declaration of Rudy Villarreal, # 7 Exhibit Declaration of Kathleen Cordova)(Eccles, James) (Entered: 08/25/2014)

08/25/2014 1226 Additional Attachments to Main Document: 1225 MOTION to Vacate The Dental Assessment Portion of the Health Outcomes Measures and Dental Assessment Corrective Action Order, and Related Consent Decree Provisions.. (Attachments: # 1 Exhibit Declaration of Melinda Metteauer)(Eccles, James) (Entered: 08/25/2014)

08/25/2014 1227 Additional Attachments to Main Document: 1225 MOTION to Vacate The Dental Assessment Portion of the Health Outcomes Measures and Dental Assessment Corrective Action Order, and Related Consent Decree Provisions.. (Attachments: # 1 Exhibit Declaration of Lori Howley)(Eccles, James) (Entered: 08/25/2014)

08/25/2014 1228 Additional Attachments to Main Document: 1225 MOTION to Vacate The Dental Assessment Portion of the Health Outcomes Measures and Dental Assessment Corrective Action Order, and Related Consent Decree Provisions.. (Attachments: # 1 Exhibit Declaration of Carlos Lacasa)(Eccles, James) (Entered: 08/25/2014)

08/25/2014

1229

Additional Attachments to Main Document: 1225 MOTION to Vacate The Dental Assessment Portion of the Health Outcomes Measures and Dental Assessment Corrective Action Order, and Related Consent Decree Provisions.. (Attachments: # 1 Exhibit Declaration of Margaret Bruch, # 2 Exhibit Declaration of Dorothy Mandell)(Eccles, James) (Entered: 08/25/2014)

08/25/2014

1230

Additional Attachments to Main Document: 1225 MOTION to Vacate The Dental Assessment Portion of the Health Outcomes Measures and Dental Assessment Corrective Action Order, and Related Consent Decree Provisions.. (Attachments: # 1 Exhibit FFY 2013 CMS−416 State Summary, # 2 Exhibit CAO and Consent Decree Requirements and Evidence Table, # 3 Exhibit Plfs 5−22−14 Resp to Defs Chart Showing CAO and Decree Provisions, # 4 Exhibit Declaration of Gita Mirchandani, PhD, MPH, # 5 Exhibit Declaration of Katy Walter, # 6 Exhibit HP2020 Documents, # 7 Exhibit 1996 and 1997 QMR Excerpts, # 8 Exhibit Dkt 1195−13, THSteps Active and Enrolled Dental Provider Part. Rept, 1996−Current, # 9 Exhibit Excerpts from HHSC Dental Contract Terms and Conds, # 10 Exhibit Dkt 1094−18 THSteps Dental Checkups 1997−2012, # 11 Exhibit Paragraph 172 Correspondence, # 12 Exhibit Make Your Smile Count Study Report)(Eccles, James) (Entered: 08/25/2014)

08/25/2014

1231

Additional Attachments to Main Document: 1225 MOTION to Vacate The Dental Assessment Portion of the Health Outcomes Measures and Dental Assessment Corrective Action Order, and Related Consent Decree Provisions.. (Attachments: # 1 Exhibit Make Your Smile Count Study Report − Continued, # 2 Text of Proposed Order proposed Order)(Eccles, James) (Entered: 08/25/2014)

08/25/2014 1232 Unopposed MOTION for Leave to File Excess Pages by All Defendants. (Attachments: # 1 Text of Proposed Order Proposed Order)(Eccles, James) (Entered: 08/25/2014)

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 109 of 145

08/26/2014 1233 ORDER Denying as moot 1157 Opposed Motion To Abate Proceedings. Signed by Judge Richard A. Schell on 8/26/14. (cm, ) (Entered: 08/26/2014)

08/29/2014 1234 Unopposed MOTION for Extension of Time to File Unopposed Motion For Additional Time For Plaintiffs To File A Motion Regarding The Issue Of Fees For 2013 by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Garrigan, Timothy) (Entered: 08/29/2014)

09/10/2014

1235

Agreed MOTION for Extension of Time to File Response/Reply as to 1225 MOTION to Vacate The Dental Assessment Portion of the Health Outcomes Measures and Dental Assessment Corrective Action Order, and Related Consent Decree Provisions by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 09/10/2014)

09/22/2014

1236

REPLY to Response to Motion re 1169 SEALED MOTION DEFENDANTS RULE 60(B)(5) MOTION TO VACATE THE TRANSPORTATION PROGRAM CORRECTIVE ACTION ORDER AND RELATED CONSENT DECREE PROVISIONS (SEALED) filed by All Defendants. (Attachments: # 1 Exhibit Exhibit 23)(Halpern, Linda) (Entered: 09/22/2014)

09/22/2014 1237 Unopposed MOTION for Leave to File Excess Pages by All Defendants. (Attachments: # 1 Text of Proposed Order)(Halpern, Linda) (Entered: 09/22/2014)

09/22/2014 1238 Unopposed MOTION for Leave to File an Additional Exhibit by All Defendants. (Attachments: # 1 Text of Proposed Order)(Halpern, Linda) (Entered: 09/22/2014)

09/29/2014 1239 Unopposed MOTION for Extension of Time to File Defendants' 60(B)(5) Motion to Vacate the First Modified CAO; Outreach and Informing and Related Consent Decree Paragraphs by All Defendants. (Attachments: # 1 Text of Proposed Order)(Halpern, Linda) (Entered: 09/29/2014)

09/29/2014 1240 Unopposed MOTION for Leave to File Substitute Exhibit by All Defendants. (Attachments: # 1 Text of Proposed Order)(Halpern, Linda) (Entered: 09/29/2014)

09/29/2014 1241 ORDER GRANTING 1232 Motion for Leave to File Excess Pages. Signed by Judge Richard A. Schell on 9/29/2014. (baf, ) (Entered: 09/29/2014)

09/29/2014 1242 ORDER GRANTING 1223 Motion for Leave to File Excess Pages. Signed by Judge Richard A. Schell on 9/29/2014. (baf, ) (Entered: 09/29/2014)

09/29/2014 1243 ORDER GRANTING 1234 Motion for Extension of Time to File. Signed by Judge Richard A. Schell on 9/29/2014. (baf, ) (Entered: 09/29/2014)

09/29/2014

1244

ORDER GRANTING 1235 Motion for Extension of Time to File Response/Reply re 1225 MOTION to Vacate The Dental Assessment Portion of the Health Outcomes Measures and Dental Assessment Corrective Action Order, and Related Consent Decree Provisions. Responses due by 11/7/2014. Signed by Judge Richard A. Schell on 9/29/2014. (baf, ) (Entered: 09/29/2014)

09/29/2014 1245 ORDER GRANTING 1237 Motion for Leave to File Excess Pages. Signed by Judge Richard A. Schell on 9/29/2014. (baf, ) (Entered: 09/29/2014)

09/29/2014 1246 ORDER GRANTING 1238 Motion for Leave to File. Signed by Judge Richard A. Schell on 9/29/2014. (baf, ) (Entered: 09/29/2014)

09/29/2014 1247 ORDER DENYING 1102 Motion to Strike. Signed by Judge Richard A. Schell on 9/29/2014. (baf, ) (Entered: 09/29/2014)

09/30/2014 1248 ORDER GRANTING 1120 Motion for Attorney Fees. Signed by Judge Richard A. Schell on 9/29/2014. (baf, ) (Entered: 09/30/2014)

09/30/2014 1249 Joint MOTION for Extension of Time to File Motion for 2013 Interim Attorneys' Fees by All Defendants. (Attachments: # 1 Text of Proposed Order)(Eccles, James) (Entered: 09/30/2014)

10/17/2014

1250

Unopposed MOTION for Extension of Time to File Response/Reply as to 1225 MOTION to Vacate The Dental Assessment Portion of the Health Outcomes Measures and Dental Assessment Corrective Action Order, and Related Consent Decree Provisions Plaintiffs' Unopposed Superseding Motion Concerning Scheduling Re: Plaintiffs' Response to Defendants' Rule 60 (B)(5) Motion To Vacate Dental

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Assessment Portion of the Health Outcomes Measures CAO and Related Consent Decree Provisions (DKT #1225) by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Garrigan, Timothy) (Entered: 10/17/2014)
10/22/2014 1251 ***FILED IN ERROR. ATTORNEY WILL REFILE***

10/23/2014

SUR−REPLY to Reply to Response to Motion re 1169 SEALED MOTION DEFENDANTS RULE 60(B)(5) MOTION TO VACATE THE TRANSPORTATION PROGRAM CORRECTIVE ACTION ORDER AND RELATED CONSENT DECREE PROVISIONS (SEALED) Plaintiffs' Sur−Reply To Defendants' Reply In Support of Their Rule 60(B)(5) Motion to Vacate the Transportation Program Corrective Action Order and Related Consent Decree Provision (Dkt 1236) filed by All Plaintiffs. (Garrigan, Timothy) Modified on 10/23/2014 (pad, ). (Entered: 10/22/2014)
***FILED IN ERROR. Document # 1251, Sur−Reply to Defendant's Reply in Support of their Motion to Vacate the Transport Program Corrective Action Order and Related Consent Decree Provision submitted by Plaintiffs. Corrected document to be made in one business day. PLEASE IGNORE.***

(pad, ) (Entered: 10/23/2014)

10/23/2014

1252

SUR−REPLY to Reply to Response to Motion re 1169 SEALED MOTION DEFENDANTS RULE 60(B)(5) MOTION TO VACATE THE TRANSPORTATION PROGRAM CORRECTIVE ACTION ORDER AND RELATED CONSENT DECREE PROVISIONS (SEALED) Plaintiffs' Sur−Reply to Defendants' Reply in Support of Their Rule 60(B)(5) Motion to Vacate the Transportation Program Corrective Action Order and Related Consent Decree Provisions (Dkt 1236) filed by All Plaintiffs. (Garrigan, Timothy) (Entered: 10/23/2014)

10/28/2014 1253 NOTICE OF APPEAL as to 1248 Order on Motion for Attorney Fees by All Defendants. Filing fee $ 505, receipt number 0540−4902197. (Eccles, James) (Entered: 10/28/2014)

10/29/2014 1254 NOTICE by All Defendants Regarding Report to the Court Regarding Notification to the Class (Eccles, James) (Entered: 10/29/2014)

10/30/2014

1255

Monthly MOTION for Attorney Fees Plaintiffs' Opposed Motion For Award of Uncontested 2013 Interim Fees, Costs, and Expenses to Plainitffs' Attorneys, and for Related Procedural Orders by All Plaintiffs. (Attachments: # 1 Exhibit Zinn Declaration, # 2 Exhibit Zinn Time Records, # 3 Exhibit Swanson Declaration, # 4 Exhibit Swanson Time Records, # 5 Exhibit Swanson Expenses, # 6 Exhibit Garrigan Declaration, # 7 Exhibit Garrigan Time Records, # 8 Exhibit Garrigan Expenses, # 9 Exhibit Garrigan Expense Resume, # 10 Exhibit McCalin Atty Fee Order, # 11 Exhibit Craig Declaration, # 12 Exhibit Craig Time Records, # 13 Exhibit Baxter Declaration, # 14 Exhibit Class Notice, # 15 Exhibit May 15 ltr, # 16 Exhibit June 22, # 17 Text of Proposed Order Procedural Order)(Garrigan, Timothy) (Entered: 10/30/2014)

10/31/2014

1256

NOTICE by All Defendants DEFENDANTS' NOTICE OF FILING QUARTERLY MONITORING REPORT − OCTOBER 2014 (Attachments: # 1 Exhibit LIST, # 2 Exhibit 1, # 3 Sealed Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17)(Eccles, James) Modified on 11/6/2014 (cm, ). (Entered: 10/31/2014)

10/31/2014 1257 Additional Attachments to Main Document: 1256 Notice (Other),.. (Attachments: # 1 OCT 2014 QMR)(Eccles, James) (Entered: 10/31/2014)

11/13/2014 1258 MOTION for Hearing LR CV−7(g) Request for Oral Hearing Regarding Pending Motion on the Medical Transportation Program by All Defendants. (Attachments: # 1 Text of Proposed Order)(Halpern, Linda) (Entered: 11/13/2014)

11/17/2014

1259

RESPONSE to Motion re 1255 Monthly MOTION for Attorney Fees Plaintiffs' Opposed Motion For Award of Uncontested 2013 Interim Fees, Costs, and Expenses to Plainitffs' Attorneys, and for Related Procedural Orders filed by All Defendants. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Eccles, James) (Additional attachment(s) added on 11/18/2014: # 6 Text of Proposed Order) (cm, ). (Entered: 11/17/2014)

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11/17/2014 1260 NOTICE by All Plaintiffs Plaintiff's Notice of Expert Designation Regarding Defendants' Rule 60(b)(5) Motion re: Dental (Dkt 1225) (Attachments: # 1 Exhibit Expert Report)(Garrigan, Timothy) (Entered: 11/17/2014)

11/24/2014

1261

RESPONSE in Opposition re 1258 MOTION for Hearing LR CV−7(g) Request for Oral Hearing Regarding Pending Motion on the Medical Transportation Program Plaintiffs' Response In Opposition To Defendants' LR CV−7(g) Request for Oral Hearing Regarding Pending Motion on the Medical Transportation Program (DKT 1258) filed by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Proposed Order)(Garrigan, Timothy) (Entered: 11/24/2014)

11/26/2014 1262 REPLY to Response to Motion re 1255 Monthly MOTION for Attorney Fees Plaintiffs' Opposed Motion For Award of Uncontested 2013 Interim Fees, Costs, and Expenses to Plainitffs' Attorneys, and for Related Procedural Orders filed by All Plaintiffs. (Garrigan, Timothy) (Entered: 11/26/2014)

12/05/2014

1263

Unopposed MOTION for Extension of Time to File Response/Reply as to 1225 MOTION to Vacate The Dental Assessment Portion of the Health Outcomes Measures and Dental Assessment Corrective Action Order, and Related Consent Decree Provisions PLAINTIFFS UNOPPOSED MOTION FOR ADDITIONAL TIME TO FILE PLAINTIFFS RESPONSE OPPOSING DEFENDANTS RULE 60(B)(5) MOTION TO VACATE THE DENTAL ASSESSMENT PORTION OF THE HEALTH OUTCOMES MEASURES AND DENTAL ASSESSMENT CORRECTIVE ACTION ORDER, AND RELATED CONSENT DECREE PROVISIONS (DKT 1225) by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Proposed Order)(Garrigan, Timothy) (Entered: 12/05/2014)

12/08/2014

Certified and Electronically Transmitted Record on Appeal to US Court of Appeals re 1253 Notice of Appeal (pad, ) (Entered: 12/08/2014)

12/08/2014 1264 SUR−REPLY to Reply to Response to Motion re 1255 Monthly MOTION for Attorney Fees Plaintiffs' Opposed Motion For Award of Uncontested 2013 Interim Fees, Costs, and Expenses to Plainitffs' Attorneys, and for Related Procedural Orders filed by All Defendants. (Eccles, James) (Entered: 12/08/2014)

12/09/2014 1265 ORDER denying 1258 Motion for Hearing. Signed by Judge Richard A. Schell on 12/9/14. (cm, ) (Entered: 12/09/2014)

12/09/2014 1266 ORDER granting 1239 Motion for Extension of Time to File. Signed by Judge Richard A. Schell on 12/9/14. (cm, ) (Entered: 12/09/2014)

12/09/2014 1267 ORDER granting 1240 DEFENDANTS UNOPPOSED MOTION FOR LEAVE TO SUBSTITUTE EXHIBIT. Signed by Judge Richard A. Schell on 12/9/14. (cm, ) (Entered: 12/09/2014)

12/09/2014 1268 ORDER granting 1249 Motion for Extension of Time to File. Plaintiffs will file their motion regarding their 2013 fees, costs and expenses that are disputed on or before January 12, 2015. Signed by Judge Richard A. Schell on 12/9/14. (cm, ) (Entered: 12/09/2014)

12/09/2014

1269

ORDER granting 1250 Motion for Extension of Time to File Response/Reply re 1225 MOTION to Vacate The Dental Assessment Portion of the Health Outcomes Measures and Dental Assessment Corrective Action Order, and Related Consent Decree Provisions Responses due by 12/29/2014. The deadline for Plaintiffs to identify any prospective expert witnesses concerning Defendants Dental Motion to Vacate and to provide Defendants with a summary of the witnesses expected testimony was November 17, 2014. Signed by Judge Richard A. Schell on 12/9/14. (cm, ) (Entered: 12/09/2014)

12/09/2014

1270

ORDER granting 1263 Motion for Extension of Time to File Response/Reply re 1225 MOTION to Vacate The Dental Assessment Portion of the Health Outcomes Measures and Dental Assessment Corrective Action Order, and Related Consent Decree Provisions Responses due by 12/29/2014. Signed by Judge Richard A. Schell on 12/9/14. (cm, ) (Entered: 12/10/2014)

12/10/2014 1271 ORDER RE: HOTLINE HEARING PURSUANT TO LOCAL RULE CV−26(e). Signed by Magistrate Judge Amos L. Mazzant on 12/10/14. (cm, ) (Entered: 12/10/2014)

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12/22/2014

1272

Unopposed MOTION for Extension of Time to File Response/Reply as to 1225 MOTION to Vacate The Dental Assessment Portion of the Health Outcomes Measures and Dental Assessment Corrective Action Order, and Related Consent Decree Provisions PLAINTIFFS UNOPPOSED MOTION FOR ADDITIONAL EXTENSION OF TIME TO FILE PLAINTIFFS RESPONSE OPPOSING DEFENDANTS RULE 60(B)(5) MOTION TO VACATE THE DENTAL ASSESSMENT PORTION OF THE HEALTH OUTCOMES MEASURES AND DENTAL ASSESSMENT CORRECTIVE ACTION ORDER, AND RELATED CONSENT DECREE PROVISIONS (DKT 1225) by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Proposed Order)(Garrigan, Timothy) (Entered: 12/22/2014)

01/05/2015 1273 NOTICE by All Plaintiffs PLAINTIFFS CERTIFICATE CONCERNING CLASS MEMEBERS COMMENTS ABOUT PLAINTIFFS APPLICATION FOR INTERIM FEES FOR 2012 (Garrigan, Timothy) (Entered: 01/05/2015)

01/06/2015 1274 NOTICE of Attorney Appearance by Timothy David Craig on behalf of All Plaintiffs (Craig, Timothy) (Entered: 01/06/2015)

01/07/2015

1275

Unopposed MOTION for Extension of Time to File PLAINTIFFS UNOPPOSED MOTION TO RESET THE DUE DATE FOR PLAINTIFFS TO FILE A MOTION REGARDING DISPUTED 2013 FEES, EXPENSES AND COSTS by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Proposed Order)(Garrigan, Timothy) (Entered: 01/07/2015)

01/15/2015

1276

ORDER granting 1272 Motion for Extension of Time to File Response/Reply re 1225 MOTION to Vacate The Dental Assessment Portion of the Health Outcomes Measures and Dental Assessment Corrective Action Order, and Related Consent Decree Provisions. Responses due by 3/16/2015. Signed by Judge Richard A. Schell on 1/15/15. (cm, ) (Entered: 01/16/2015)

01/15/2015

1277

ORDER granting 1275 Motion for Extension of Time to File. Plaintiffs shall have 60 days after resolution of the currently pending fee appeal (Dkt 1253) and motion (Dkt. 1255) before they are required to file a disputed motion regarding their 2013 fees, costs, and expenses. Signed by Judge Richard A. Schell on 1/15/15. (cm, ) (Entered: 01/16/2015)

01/16/2015 1278 MOTION to Substitute Attorney Jonathan F. Mitchell by Kyle L Janek, David L Lakey. (Attachments: # 1 Text of Proposed Order)(Keller, Scott) (Entered: 01/16/2015)

01/16/2015 1279 Minute Entry for proceedings held before Judge Richard A. Schell: Motion Hearing held on 1/16/2015 re 1147 MOTION to Vacate. (Court Reporter Denise Carillo.) (bss, ) Modified on 1/20/2015 (bss, ). (Entered: 01/20/2015)

01/20/2015 1280 ORDER ON CORRECTIVE ACTION ORDER: ADEQUATE SUPPLY OF HEALTH CARE PROVIDERS (DKT. 637−9) & RELATED CONSENT DECREE PROVISIONS 1033 Sealed Motion. Signed by Judge Richard A. Schell on 1/20/15. (cm, ) (Entered: 01/21/2015)

01/20/2015 1281 ORDER granting 1278 Motion to Substitute Attorney. Attorney Jonathan F Mitchell terminated. Signed by Judge Richard A. Schell on 1/20/15. (cm, ) (Entered: 01/21/2015)

01/30/2015 1282 NOTICE by All Defendants of Filing Jan 2015 Quarterly Monitoring Report (Attachments: # 1 Exhibit January 2015 Quarterly Report, # 2 Exhibit List, # 3 Exhibit 1 MAXIMUS THSteps Monthly Report Sept 2014)(Eccles, James) (Entered: 01/30/2015)

01/30/2015 1283 Additional Attachments to Main Document: 1282 Notice (Other).. (Eccles, James) (Entered: 01/30/2015)

01/30/2015 1284 Additional Attachments to Main Document: 1282 Notice (Other).. (Eccles, James) (Entered: 01/30/2015)

01/30/2015 1285 Additional Attachments to Main Document: 1282 Notice (Other).. (Eccles, James) (Entered: 01/30/2015)

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01/30/2015

1286

Additional Attachments to Main Document: 1282 Notice (Other).. (Attachments: # 1 Exhibit 3 DSHS THSteps Provider Relations Activities Rept Sept − Nov 2014, # 2 Exhibit 4 THSteps Written Outreach Rpt Sep − Nov 2014 w Supp, # 3 Exhibit 5 Outreach Effectiveness Repts for Medical and Dental Checkups, # 4 Exhibit 6 Activities Report for Medicaid Managed Care Organizations, # 5 Exhibit 7 TMHP Monthly Provider Services Rept, # 6 Exhibit 8 THSteps OPE Module Utilization Rept Cumulative and 1st Qtr SFY 2015, # 7 Exhibit 9 THSteps OPE Specialty 1st Qtr SFY 2015, # 8 Exhibit 10 Dental Svcs for Children Under 36 Mos, # 9 Exhibit 11 2013 THSteps Dental Performance Indicator, # 10 Exhibit 12 THSteps Active and Enrolled Dental Provider Participation Rept)(Eccles, James) (Entered: 01/30/2015)

01/30/2015

1287

Additional Attachments to Main Document: 1282 Notice (Other).. (Attachments: # 1 Exhibit 14 SFY 2012 Medicaid Managed Care THSteps Medical Checkups Annual Repts, # 2 Exhibit 15 SFY 2012 THSteps Medical Checkups Annual Rept totals, # 3 Exhibit 16 Geographic Access to PCP and Selected Specialists, # 4 Exhibit 17 Toll Free Number Compliance Rept for Medical Transportation Program, # 5 Exhibit 18 2013 Annual Targeted Case Management Rept, # 6 Exhibit 19 SFY 2014 Q3 Rept on Case Manage for Children and Pregnant Women)(Eccles, James) (Entered: 01/30/2015)

02/17/2015 1288 NOTICE OF APPEAL as to 1280 Order on Sealed Motion by All Plaintiffs. Filing fee $ 505, receipt number 0540−5060779. (Garrigan, Timothy) (Entered: 02/17/2015)

02/24/2015 1289 Agreed MOTION for Extension of Time to File Proposed Findings and Conclusions by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 02/24/2015)

02/24/2015

USCA Case Number 15−40229 for 1288 Notice of Appeal filed by All Plaintiffs. (pad, ) (Entered: 02/25/2015)

02/26/2015

1290

Unopposed MOTION for Extension of Time to File Briefing Schedule for Defendants' Rule 60(b)(5) Motion to Vacate the First Modified CAO: Outreach & Informing; Sec. III of the CAO: Managed Care; and Related Consent Decree Paragraphs by All Defendants. (Attachments: # 1 Text of Proposed Order)(Halpern, Linda) (Entered: 02/26/2015)

03/02/2015 1291 Joint MOTION for Attorney Fees by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 03/02/2015)

03/16/2015

1292

Unopposed MOTION for Extension of Time to File Response/Reply as to 1276 Order on Motion for Extension of Time to File Response/Reply, 1225 MOTION to Vacate The Dental Assessment Portion of the Health Outcomes Measures and Dental Assessment Corrective Action Order, and Related Consent Decree Provisions Plaintiffs' Second Unopposed Motion For Additional Time To File Their Response Opposing Defendants' Rule 60(B)(5) Motion To Vacate The Dental Assessment Portion Of The Health Outcomes Measures And Dental Assessment Corrective Action Order, And Related Consent Decree Provisions (Dkt 1225) by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Garrigan, Timothy) (Entered: 03/16/2015)

03/20/2015 1293 HOTLINE ORDER. ORDERED that Defendants objection to questioning Dr. Altenhoff concerning what and when the State learned that its third party contractor failed to prevent dental fraud is SUSTAINED. Signed by Magistrate Judge K. Nicole Mitchell on 3/20/2015. (gsg) (Entered: 03/20/2015)

03/20/2015 1294 Minute Entry for proceedings held before Magistrate Judge K. Nicole Mitchell: Hotline Conference held on 3/20/2015. (Court Reporter L Hardwick.) (leh, ) (Entered: 03/23/2015)

03/31/2015 1295 NOTICE by All Defendants Defendants' Advisory Concerning the Medical Transportation Program and Impending Deadlines (Halpern, Linda) (Entered: 03/31/2015)

04/02/2015 1296 RESPONSE to 1295 Notice (Other) Plaintiffs' Response to Defendants' Advisory Concerning the Medical Transportation Program and Impending Deadlines (DKT# 1295) filed by All Plaintiffs. (Garrigan, Timothy) (Entered: 04/02/2015)

04/07/2015

Certified and Electronically Transmitted Record on Appeal to US Court of Appeals re 1288 Notice of Appeal (pad, ) (Entered: 04/07/2015)

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04/14/2015 1297 Agreed MOTION for Extension of Time to File for 2014 Attorney Fees by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 04/14/2015)

04/28/2015

1298

MOTION to Vacate The First Modified Corrective Action Order: Outreach and Informing, Section III of the Corrective Action Order: Managed Care, and Related Outreach and Informing Consent Decree Paragraphs by All Defendants. (Attachments: # 1 Exhibit List, # 2 Exhibit 1 Declaration of Geoffrey Wool, # 3 Exhibit 2 Declaration of Andrew Keller with Attachments A−B, # 4 Exhibit 2 Declaration of Andrew Keller − Attachment C − part 1)(Eccles, James) (Entered: 04/28/2015)

04/28/2015

1299

Additional Attachments to Main Document: 1298 MOTION to Vacate The First Modified Corrective Action Order: Outreach and Informing, Section III of the Corrective Action Order: Managed Care, and Related Outreach and Informing Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 2 Declaration of Andrew Keller − Attachment C − part 2, # 2 Exhibit 2 Declaration of Andrew Keller − Attachments D−E)(Eccles, James) (Entered: 04/28/2015)

04/28/2015

1300

Additional Attachments to Main Document: 1298 MOTION to Vacate The First Modified Corrective Action Order: Outreach and Informing, Section III of the Corrective Action Order: Managed Care, and Related Outreach and Informing Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 2 Declaration of Andrew Keller − Attachments F−G, # 2 Exhibit 3 O&I CAO Conference Period Correspondence Among Parties, # 3 Exhibit 4 Declaration of Kay Ghahremani)(Eccles, James) (Entered: 04/28/2015)

04/28/2015

1301

Additional Attachments to Main Document: 1298 MOTION to Vacate The First Modified Corrective Action Order: Outreach and Informing, Section III of the Corrective Action Order: Managed Care, and Related Outreach and Informing Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 5 Declaration of Stephanie Muth, # 2 Exhibit 6 CAO and Consent Decree Requirements and Evidence Table)(Eccles, James) (Entered: 04/28/2015)

04/28/2015

1302

Additional Attachments to Main Document: 1298 MOTION to Vacate The First Modified Corrective Action Order: Outreach and Informing, Section III of the Corrective Action Order: Managed Care, and Related Outreach and Informing Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 7 Declaration of Robert Butler, # 2 Exhibit 7 Declaration of Robert Butler − Attachment A − part 1)(Eccles, James) (Entered: 04/28/2015)

04/28/2015

1303

Additional Attachments to Main Document: 1298 MOTION to Vacate The First Modified Corrective Action Order: Outreach and Informing, Section III of the Corrective Action Order: Managed Care, and Related Outreach and Informing Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 7 Declaration of Robert Butler − Attachment A − part 2, # 2 Exhibit 7 Declaration of Robert Butler − Attachments B−D)(Eccles, James) (Entered: 04/28/2015)

04/28/2015

1304

Additional Attachments to Main Document: 1298 MOTION to Vacate The First Modified Corrective Action Order: Outreach and Informing, Section III of the Corrective Action Order: Managed Care, and Related Outreach and Informing Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 8 Declaration of Melinda Metteauer)(Eccles, James) (Entered: 04/28/2015)

04/28/2015

1305

Additional Attachments to Main Document: 1298 MOTION to Vacate The First Modified Corrective Action Order: Outreach and Informing, Section III of the Corrective Action Order: Managed Care, and Related Outreach and Informing Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 8 Declaration of Melinda Metteauer − Attachments 1−5)(Eccles, James) (Entered: 04/28/2015)

04/28/2015

1306

Additional Attachments to Main Document: 1298 MOTION to Vacate The First Modified Corrective Action Order: Outreach and Informing, Section III of the Corrective Action Order: Managed Care, and Related Outreach and Informing Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 8 Declaration of Melinda Metteauer − Attachments 6−19, # 2 Exhibit 8 Declaration of Melinda Metteauer − Attachments 20−29)(Eccles, James) (Entered: 04/28/2015)

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04/28/2015

1307

Additional Attachments to Main Document: 1298 MOTION to Vacate The First Modified Corrective Action Order: Outreach and Informing, Section III of the Corrective Action Order: Managed Care, and Related Outreach and Informing Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 8 Declaration of Melinda Metteauer − Attachments 30−39, # 2 Exhibit 8 Declaration of Melinda Metteauer − Attachments 40−49, # 3 Exhibit 8 Declaration of Melinda Metteauer − Attachments 50−59)(Eccles, James) (Entered: 04/28/2015)

04/28/2015

1308

Additional Attachments to Main Document: 1298 MOTION to Vacate The First Modified Corrective Action Order: Outreach and Informing, Section III of the Corrective Action Order: Managed Care, and Related Outreach and Informing Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 8 Declaration of Melinda Metteauer − Attachments 60−69, # 2 Exhibit 8 Declaration of Melinda Metteauer − Attachments 70−75)(Eccles, James) (Entered: 04/28/2015)

04/28/2015

1309

Additional Attachments to Main Document: 1298 MOTION to Vacate The First Modified Corrective Action Order: Outreach and Informing, Section III of the Corrective Action Order: Managed Care, and Related Outreach and Informing Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 8 Declaration of Melinda Metteauer − Attachments 76−79, # 2 Exhibit 8 Declaration of Melinda Metteauer − Attachments 80−84)(Eccles, James) (Entered: 04/28/2015)

04/28/2015

1310

Additional Attachments to Main Document: 1298 MOTION to Vacate The First Modified Corrective Action Order: Outreach and Informing, Section III of the Corrective Action Order: Managed Care, and Related Outreach and Informing Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 8 Declaration of Melinda Metteauer − Attachment 85 − part 1)(Eccles, James) (Entered: 04/28/2015)

04/28/2015

1311

Additional Attachments to Main Document: 1298 MOTION to Vacate The First Modified Corrective Action Order: Outreach and Informing, Section III of the Corrective Action Order: Managed Care, and Related Outreach and Informing Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 8 Declaration of Melinda Metteauer − Attachment 85 − part 2)(Eccles, James) (Entered: 04/28/2015)

04/28/2015

1312

Additional Attachments to Main Document: 1298 MOTION to Vacate The First Modified Corrective Action Order: Outreach and Informing, Section III of the Corrective Action Order: Managed Care, and Related Outreach and Informing Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 8 Declaration of Melinda Metteauer − Attachment 85 − part 3)(Eccles, James) (Entered: 04/28/2015)

04/28/2015

1313

Additional Attachments to Main Document: 1298 MOTION to Vacate The First Modified Corrective Action Order: Outreach and Informing, Section III of the Corrective Action Order: Managed Care, and Related Outreach and Informing Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 8 Declaration of Melinda Metteauer − Attachment 85 − part 4, # 2 Exhibit 8 Declaration of Melinda Metteauer − Attachments 86−89)(Eccles, James) Modified on 5/1/2015 (cm, ). (Entered: 04/28/2015)

04/28/2015

1314

Additional Attachments to Main Document: 1298 MOTION to Vacate The First Modified Corrective Action Order: Outreach and Informing, Section III of the Corrective Action Order: Managed Care, and Related Outreach and Informing Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 8 Declaration of Melinda Metteauer − Attachments 90−91)(Eccles, James) (Entered: 04/28/2015)

04/28/2015

1315

Additional Attachments to Main Document: 1298 MOTION to Vacate The First Modified Corrective Action Order: Outreach and Informing, Section III of the Corrective Action Order: Managed Care, and Related Outreach and Informing Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 8 Declaration of Melinda Metteauer − Attachments 92−95, # 2 Exhibit 9 Declaration of Michelle Long)(Eccles, James) (Entered: 04/28/2015)

04/28/2015

1316

Additional Attachments to Main Document: 1298 MOTION to Vacate The First Modified Corrective Action Order: Outreach and Informing, Section III of the Corrective Action Order: Managed Care, and Related Outreach and Informing Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 10 Declaration of Margaret Bruch, # 2 Exhibit 11 July and April 2007 QMR Excerpts, # 3 Exhibit 12 Declaration of Diane Hanley, # 4 Exhibit 13 Declaration of Elsa Gauna)(Eccles, James) (Entered:

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 116 of 145

04/28/2015)

04/28/2015

1317

Additional Attachments to Main Document: 1298 MOTION to Vacate The First Modified Corrective Action Order: Outreach and Informing, Section III of the Corrective Action Order: Managed Care, and Related Outreach and Informing Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 14 Paragraph 60 THSteps Outreach Reports for Sept. − Nov. 2014, # 2 Exhibit 15 Paragraph 61 Outreach Effectiveness Reports for Medical and Dental Checkups Jun. − Aug. 2014, # 3 Exhibit 16 Declaration of Roland Cano with Attachments A−E)(Eccles, James) (Entered: 04/28/2015)

04/28/2015

1318

Additional Attachments to Main Document: 1298 MOTION to Vacate The First Modified Corrective Action Order: Outreach and Informing, Section III of the Corrective Action Order: Managed Care, and Related Outreach and Informing Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 16 Declaration of Roland Cano − Attachments F−H, # 2 Exhibit 17 QMR Excerpts for 1996, 1997, 2000 and 2012, # 3 Exhibit 18 Declaration of Vy Nguyen, # 4 Exhibit 19 Dkt. 1286−4 Excerpt from Jan. 2015 Activities Report for Medicaid Managed Care Organizations: Medicaid Health Maintenance Organizations (HMOs) and Dental Plans, # 5 Exhibit 20 Memorandum of Understanding between the Tex. Dept. of Health and the Tex. Dept. of Human Services, # 6 Certificate of Conference, # 7 Text of Proposed Order)(Eccles, James) (Entered: 04/28/2015)

04/28/2015 1319 Unopposed MOTION for Leave to File Excess Pages by All Defendants. (Attachments: # 1 Text of Proposed Order)(Eccles, James) (Entered: 04/28/2015)

04/30/2015

1320

Unopposed MOTION for Extension of Time to File PLAINTIFFS THIRD UNOPPOSED MOTION FOR ADDITIONAL TIME TO FILE THEIR RESPONSE OPPOSING DEFENDANTS RULE 60(B)(5) MOTION TO VACATE THE DENTAL ASSESSMENT PORTION OF THE HEALTH OUTCOMES MEASURES AND DENTAL ASSESSMENT CORRECTIVE ACTION ORDER, AND RELATED CONSENT DECREE PROVISIONS (DKT 1225) by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Proposed Order)(Garrigan, Timothy) (Entered: 04/30/2015)

04/30/2015 1321 NOTICE by All Defendants of Filing of April 2015 Quarterly Monitoring Report (Attachments: # 1 Exhibit April 2015 Quarterly Monitoring Report, # 2 Exhibit List, # 3 Exhibit 1 FFY 2014 CMS Form 416−Annual EPSDT Report)(Eccles, James) (Entered: 04/30/2015)

04/30/2015 1322 Additional Attachments to Main Document: 1321 Notice (Other).. (Attachments: # 1 Exhibit 2 MAXIMUS THSteps Monthly Report − Dec 2014)(Eccles, James) (Entered: 04/30/2015)

04/30/2015 1323 Additional Attachments to Main Document: 1321 Notice (Other).. (Attachments: # 1 Exhibit 2 MAXIMUS THSteps Monthly Report − Jan 2015)(Eccles, James) (Entered: 04/30/2015)

04/30/2015 1324 Additional Attachments to Main Document: 1321 Notice (Other).. (Attachments: # 1 Exhibit 2 MAXIMUS THSteps Monthly Report − Feb 2015, # 2 Exhibit 3 HHSC Eligibility Office THSteps Administrative Reviews, # 3 Exhibit 4 MAXIMUS Written Outreach Corrective Action Plan)(Eccles, James) (Entered: 04/30/2015)

04/30/2015 1325 Additional Attachments to Main Document: 1321 Notice (Other).. (Attachments: # 1 Exhibit 5 DSHS THSteps Provider Relations Activities Report Dec. 2014 − Feb. 2015)(Eccles, James) (Entered: 04/30/2015)

04/30/2015

1326

Additional Attachments to Main Document: 1321 Notice (Other).. (Attachments: # 1 Exhibit 6 THSteps Written Outreach Report Dec. 2014 − Feb. 2015 with Supp. Report, # 2 Exhibit 7 Outreach Effectiveness Reports for Medical and Dental Checkups, # 3 Exhibit 8 Activities Report for Medicaid Managed Care Organizations, # 4 Exhibit 9 THSteps OPE Module Utilization Report Cumulative and 2nd Quarter SFY 2015, # 5 Exhibit 10 THSteps OPE Specialty 2nd Quarter SFY 2015, # 6 Exhibit 11 Dental Services for Children under 36 mos by General Dentists and First Dental Home Training by Location, Date, and No of Attendees, # 7 Exhibit 12 TMHP Monthly Provider Services Report Excerpts Dec. 2014 − Feb. 2015, # 8 Exhibit 13 THSteps Active and Enrolled Dental Provider Participation Report, # 9 Exhibit 14 Toll−Free Number Compliance Report for Medical Transportation Management, # 10

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Exhibit 15 2014 Annual Case Management for Children and Pregnant Women Report, # 11 Exhibit 16 SFY 2015 Q1 Report on Case Management for Children and Pregnant Women, # 12 Exhibit 17 Report for Second Medical Checkup Completeness Study)(Eccles, James) (Entered: 04/30/2015)

04/30/2015 1327 Additional Attachments to Main Document: 1321 Notice (Other).. (Attachments: # 1 Exhibit 17 Report for Second Medical Checkup Completeness Study Appendices − part 1)(Eccles, James) (Entered: 04/30/2015)

04/30/2015 1328 Additional Attachments to Main Document: 1321 Notice (Other).. (Attachments: # 1 Exhibit 17 Report for Second Medical Checkup Completeness Study Appendices − part 2)(Eccles, James) (Entered: 04/30/2015)

04/30/2015 1329 MOTION to Withdraw as Attorney for Defendants by All Defendants. (Attachments: # 1 Text of Proposed Order)(Halpern, Linda) (Entered: 04/30/2015)

05/11/2015

1330

RESPONSE in Opposition re 1225 MOTION to Vacate The Dental Assessment Portion of the Health Outcomes Measures and Dental Assessment Corrective Action Order, and Related Consent Decree Provisions filed by All Plaintiffs. (Attachments: # 1 Exhibit exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10)(Garrigan, Timothy) (Entered: 05/11/2015)

05/11/2015

1331

Additional Attachments to Main Document: 1225 MOTION to Vacate The Dental Assessment Portion of the Health Outcomes Measures and Dental Assessment Corrective Action Order, and Related Consent Decree Provisions.. (Attachments: # 1 Exhibit 11, # 2 Exhibit 12, # 3 Exhibit 13, # 4 Exhibit 14, # 5 Exhibit 15, # 6 Exhibit 16, # 7 Exhibit 17, # 8 Exhibit 18, # 9 Exhibit 19, # 10 Exhibit 20, # 11 Exhibit 21, # 12 Exhibit 22, # 13 Exhibit 23, # 14 Exhibit 24, # 15 Text of Proposed Order Proposed Order)(Garrigan, Timothy) (Entered: 05/12/2015)

05/15/2015

1332

RESPONSE in Opposition re 1225 MOTION to Vacate The Dental Assessment Portion of the Health Outcomes Measures and Dental Assessment Corrective Action Order, and Related Consent Decree Provisions PLAINTIFFS AMENDED RESPONSE OPPOSING DEFENDANTS RULE 60(B)(5) MOTION TO VACATE THE DENTAL ASSESSMENT PORTION OF THE HEALTH OUTCOMES MEASURES AND DENTAL ASSESSMENT CORRECTIVE ACTION ORDER, AND RELATED CONSENT DECREE PROVISIONS (DKT 1225) filed by All Plaintiffs. (Attachments: # 1 Exhibit cao, # 2 Exhibit Def Corrective Action Plan, # 3 Exhibit CMS 416, # 4 Exhibit Assessment, # 5 Exhibit First Amended Assessment, # 6 Exhibit Second Assessment, # 7 Exhibit Amended Second Assessment, # 8 Exhibit Methodology, # 9 Exhibit Dental Check Up SFY, # 10 Exhibit August 22 ltr)(Garrigan, Timothy) (Entered: 05/15/2015)

05/15/2015

1333

Additional Attachments to Main Document: 1332 Response in Opposition to Motion,,,.. (Attachments: # 1 Exhibit Exhibit 11 November 25 ltr, # 2 Exhibit Exhibit 12 June 30 ltr, # 3 Exhibit Exhibit 13 Supp Expert Report, # 4 Exhibit Exhibit 14, # 5 Exhibit Exhibit 15 Henderson Depo 1, # 6 Exhibit Exhibit 16 Henderson Depo 2, # 7 Exhibit Exhibit 17 Altenhoff 1, # 8 Exhibit Exhibit 18 Altenhoff 2)(Garrigan, Timothy) (Entered: 05/15/2015)

05/15/2015

1334

Additional Attachments to Main Document: 1332 Response in Opposition to Motion,,,.. (Attachments: # 1 Exhibit Exhibit 19 Mandell Depo I, # 2 Exhibit Exhibit 20 Mandell Depo 2, # 3 Exhibit Exhibit 21 Mirchandani Depo, # 4 Exhibit Exhibit 22 Dental Checkups, # 5 Exhibit Exhibit 23 Rule of Thumb, # 6 Exhibit Exhibit 24, # 7 Exhibit Exhibit 25, # 8 Exhibit Exhibit 26 THSteps, # 9 Exhibit Exhibit 27)(Garrigan, Timothy) (Entered: 05/15/2015)

05/15/2015

1335

Additional Attachments to Main Document: 1332 Response in Opposition to Motion,,,.. (Attachments: # 1 Exhibit Exhibit 28, # 2 Exhibit Exhibit 29, # 3 Exhibit Exhibit 30, # 4 Exhibit Exhibit 31, # 5 Exhibit Exhibit 32, # 6 Exhibit Exhibit 33, # 7 Exhibit Exhibit 34, # 8 Text of Proposed Order Amended Proposed Order)(Garrigan, Timothy) (Entered: 05/15/2015)

05/22/2015 1336 Unopposed MOTION for Extension of Time to File Response/Reply as to 1225 MOTION to Vacate The Dental Assessment Portion of the Health Outcomes Measures and Dental Assessment Corrective Action Order, and Related Consent Decree

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Provisions by All Defendants. (Attachments: # 1 Text of Proposed Order)(Eccles, James) (Entered: 05/22/2015)

05/29/2015 1337 NOTICE of Attorney Appearance by Sean Patrick Flammer on behalf of All Defendants (Flammer, Sean) (Entered: 05/29/2015)

05/29/2015

1338

Opposed MOTION supplement Provider Training Response re 1166 Response to Motion, by All Plaintiffs. (Attachments: # 1 Exhibit 1 Supplement to Response, # 2 Exhibit Attachment A 2nd Checkup Completeness Study, # 3 Exhibit Attachment B Study Authors' Responses to Parties' Comments, # 4 Text of Proposed Order)(Swanson, Jane) (Entered: 05/29/2015)

05/29/2015 1339 Unopposed MOTION to Withdraw as Attorney and Designation of Attorney in Charge by All Defendants. (Attachments: # 1 Text of Proposed Order)(Eccles, James) (Entered: 05/29/2015)

06/02/2015 1340 Unopposed MOTION to Withdraw as Attorney by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 06/02/2015)

06/04/2015 1341 Opposed MOTION to Continue the Stay of Paragraphs 223−229 of the Consent Decree by All Defendants. (Flammer, Sean) (Entered: 06/04/2015)

06/05/2015 1342 Additional Attachments to Main Document: 1341 Opposed MOTION to Continue the Stay of Paragraphs 223−229 of the Consent Decree.. (Flammer, Sean) (Entered: 06/05/2015)

06/08/2015 1343 NOTICE by All Defendants to the Court Regarding the Parties' Agreement on Quarterly Monitoring Reports (Flammer, Sean) (Entered: 06/08/2015)

06/12/2015

1344

RESPONSE to Motion re 1338 Opposed MOTION supplement Provider Training Response re 1166 Response to Motion, on Defendants' Rule 60(b)(5) Motion to Vacate the Corrective Action Order on Healthcare Provider Training and Related Consent Decree Provisions filed by All Defendants. (Attachments: # 1 Text of Proposed Order)(Flammer, Sean) (Entered: 06/12/2015)

06/15/2015

1345

RESPONSE in Opposition re 1341 Opposed MOTION to Continue the Stay of Paragraphs 223−229 of the Consent Decree PLAINTIFFS RESPONSE IN OPPOSITION TO DEFENDANTS MOTION FOR CONTINUATION OF STAY OF PARAGRAPHS 223−229 OF THE CONSENT DECREE (DKT# 1341) filed by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Proposed Order)(Garrigan, Timothy) (Entered: 06/15/2015)

06/16/2015 1346 NOTICE of Attorney Appearance by Sean Patrick Flammer on behalf of All Defendants (Flammer, Sean) (Entered: 06/16/2015)

06/23/2015 1347 REPLY to Response to Motion re 1341 Opposed MOTION to Continue the Stay of Paragraphs 223−229 of the Consent Decree filed by All Defendants. (Flammer, Sean) (Entered: 06/23/2015)

06/25/2015

1348

Unopposed MOTION for Extension of Time to File Response/Reply as to 1298 MOTION to Vacate The First Modified Corrective Action Order: Outreach and Informing, Section III of the Corrective Action Order: Managed Care, and Related Outreach and Informing Consent Decree Paragraphs PLAINTIFFS' UNOPPOSED MOTION FOR ADDITIONAL TIME TO FILE PLAINTIFFS' RESPONSE TO DEFENDANTS RULE 60(B)(5) MOTION TO VACATE THE FIRST MODIFIED CAO: OUTREACH AND INFORMINGSECTION III OF THE CAO: MANAGED CARE, AND RELATED O&I CONSENT DECREE PARAGRAPHS (DKT 1298) by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Proposed Order)(Garrigan, Timothy) (Entered: 06/25/2015)

06/26/2015 1349 Agreed MOTION for Extension of Time to File Response/Reply as to 1338 Opposed MOTION supplement Provider Training Response re 1166 Response to Motion, by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 06/26/2015)

06/30/2015 1350 ORDER GRANTING DEFENDANTS MOTION TO CONTINUE STAY granting 1341 Motion to Continue. Signed by Judge Richard A. Schell on 6/30/15. (cm, ) (Entered: 06/30/2015)

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07/08/2015 1351 REPLY to Response to Motion re 1338 Opposed MOTION supplement Provider Training Response re 1166 Response to Motion, filed by All Plaintiffs. (Swanson, Jane) (Entered: 07/08/2015)

07/21/2015

1352

Unopposed MOTION for Extension of Time to File Response/Reply as to 1225 MOTION to Vacate The Dental Assessment Portion of the Health Outcomes Measures and Dental Assessment Corrective Action Order, and Related Consent Decree Provisions by All Defendants. (Attachments: # 1 Text of Proposed Order)(Flammer, Sean) (Entered: 07/21/2015)

07/21/2015

1353

SUR−REPLY to Reply to Response to Motion re 1338 Opposed MOTION supplement Provider Training Response re 1166 Response to Motion, to Vacate the Corrective Action Order on Health Care Provider Training and Related Consent Decree Provisions 1147 filed by All Defendants. (Flammer, Sean) (Entered: 07/21/2015)

07/22/2015 1354 MANDATE of USCA as to 1117 Notice of Appeal filed by All Plaintiffs. It is ordered and adjudged that the judgment of the District Court is affirmed (pad, ) (Entered: 07/22/2015)

07/31/2015 1355 NOTICE by All Defendants Notice of Filing Quarterly Monitoring Report − July 2015 (Attachments: # 1 Exhibit 1 July 2015 Quarterly Monitoring Report)(Flammer, Sean) (Entered: 07/31/2015)

07/31/2015 1356 Additional Attachments to Main Document: 1355 Notice (Other).. (Attachments: # 1 Exhibit List, # 2 Exhibit 1 MAXIMUS THSteps Monthly Reports March 2015 − part 1)(Flammer, Sean) (Entered: 07/31/2015)

07/31/2015 1357 Additional Attachments to Main Document: 1355 Notice (Other).. (Attachments: # 1 Exhibit 1 MAXIMUS THSteps Monthly Reports March 2015 − part 2)(Flammer, Sean) (Entered: 07/31/2015)

07/31/2015 1358 Additional Attachments to Main Document: 1355 Notice (Other).. (Attachments: # 1 Exhibit 1.MAXIMUS THSteps Monthly Reports April 2015 part 1)(Flammer, Sean) (Entered: 07/31/2015)

07/31/2015 1359 Additional Attachments to Main Document: 1355 Notice (Other).. (Attachments: # 1 Exhibit 1.MAXIMUS THSteps Monthly Reports April 2015 part 2)(Flammer, Sean) (Entered: 07/31/2015)

07/31/2015

1360

Additional Attachments to Main Document: 1355 Notice (Other).. (Attachments: # 1 Exhibit 5.Outreach Effectiveness Reports for Medical and Dental Checkups, # 2 Exhibit 6.Activities Report for Medicaid Managed Care Organizations, # 3 Exhibit 7.Anticipatory Guidance−A Guide for Providers, # 4 Exhibit 8.THSteps OPE Module Utilization Report Cumulative & By Quarter, # 5 Exhibit 9.THSteps OPE Subspecialty 2015 Q3, # 6 Exhibit 10.Dental Svcs for Children under 36 Mos of Age, # 7 Exhibit 11.TMHP Monthly Provider Services Report Excerpts, # 8 Exhibit 12.THSteps Active and Enrolled Dental Provider Participation Report, # 9 Exhibit 13.Texas Health Steps Dental Checkups 1997−2014, # 10 Exhibit 14.Elgin Migrant Farmworker Workshop, # 11 Exhibit 15.Medical and Dental Checkups for Children in Foster Care, # 12 Exhibit 16.MTM Toll−free Number Compliance Report, # 13 Exhibit 17.SFY 2015 Q2 Report on Case Management for Children and Pregnant Women)(Flammer, Sean) (Entered: 07/31/2015)

08/03/2015 1361 ***FILED IN ERROR PER FILER. PLEASE IGNORE.*** Additional Attachments to Main Document: 1355 Notice (Other).. (Attachments: # 1 Exhibit 1−A)(Flammer, Sean) Modified on 8/5/2015 (cm, ). (Entered: 08/03/2015)

08/03/2015 1362 ***FILED IN ERROR PER FILER. PLEASE IGNORE.*** Additional Attachments to Main Document: 1355 Notice (Other).. (Attachments: # 1 Exhibit 1−B)(Flammer, Sean) Modified on 8/5/2015 (cm, ). (Entered: 08/03/2015)

08/03/2015 1363 ***FILED IN ERROR PER FILER. PLEASE IGNORE.*** Additional Attachments to Main Document: 1355 Notice (Other).. (Attachments: # 1 Exhibit 1−C)(Flammer, Sean) Modified on 8/5/2015 (cm, ). (Entered: 08/03/2015)

08/03/2015 1364 ***FILED IN ERROR PER FILER. PLEASE IGNORE.*** Additional Attachments to Main Document: 1355 Notice (Other).. (Attachments: # 1 Exhibit

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1−D)(Flammer, Sean) Modified on 8/5/2015 (cm, ). (Entered: 08/03/2015)

08/03/2015 1365 Additional Attachments to Main Document: 1355 Notice (Other).. (Attachments: # 1 Exhibit 2−Part 1, # 2 Exhibit 2−Part 2, # 3 Exhibit 3, # 4 Exhibit 4)(Flammer, Sean) (Entered: 08/03/2015)

08/05/2015 1366 Additional Attachments to Main Document: 1355 Notice (Other).. (Attachments: # 1 Exhibit 1 MAXIMUS THSteps Monthly Reports May 2015 − part 1)(Flammer, Sean) (Entered: 08/05/2015)

08/05/2015 1367 Additional Attachments to Main Document: 1355 Notice (Other).. (Attachments: # 1 Exhibit 1 MAXIMUS THSteps Monthly Reports May 2015 − part 2)(Flammer, Sean) (Entered: 08/05/2015)

08/12/2015 1368 NOTICE by All Defendants vacation letter (Flammer, Sean) (Entered: 08/12/2015)

08/25/2015 1369 Joint MOTION Scheduling re: Checkups and Managed Care CAOs re 637 Joint MOTION for Entry of an Agreed Corrective Action Order by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 08/25/2015)

08/25/2015

1370

Agreed MOTION for Extension of Time to File Response/Reply as to 1298 MOTION to Vacate The First Modified Corrective Action Order: Outreach and Informing, Section III of the Corrective Action Order: Managed Care, and Related Outreach and Informing Consent Decree Paragraphs by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 08/25/2015)

08/26/2015

1371

ORDER granting 1348 Motion for Extension of Time to File Response/Reply re 1225 MOTION to Vacate The Dental Assessment Portion of the Health Outcomes Measures and Dental Assessment Corrective Action Order, and Related Consent Decree Provisions Responses due by 8/28/2015. Signed by Judge Richard A. Schell on 8/26/15. (cm, ) (Entered: 08/27/2015)

08/26/2015

1373

ORDER granting 1370 Motion for Extension of Time to File Response/Reply re 1298 MOTION to Vacate The First Modified Corrective Action Order: Outreach and Informing, Section III of the Corrective Action Order: Managed Care, and Related Outreach and Informing Consent Decree Paragraphs. Responses due by 9/11/2015. Signed by Judge Richard A. Schell on 8/26/15. (cm, ) (Entered: 08/27/2015)

08/27/2015

1372

ORDER DENYING JOINT MOTION TO SCHEDULE COURT FILINGS CONCERNING THE CORRECTIVE ACTION ORDER: CHECKUPS (Dkt#637−4), THE CORRECTIVE ACTION ORDER: MANAGED CARE (Dkt#637−6) AND RELATED DECREE PROVISIONS denying 1369 Motion. Signed by Judge Richard A. Schell on 8/26/15. (cm, ) (Entered: 08/27/2015)

09/07/2015

1374

RESPONSE to Motion re 1298 MOTION to Vacate The First Modified Corrective Action Order: Outreach and Informing, Section III of the Corrective Action Order: Managed Care, and Related Outreach and Informing Consent Decree Paragraphs filed by All Plaintiffs. (Attachments: # 1 Exhibit Ex. 1 Summer 2015 Correspondence, # 2 Exhibit Ex. 2 HMO Checkup Reports 2012, # 3 Exhibit Ex. 3 Dental HMO Performance Indicators, # 4 Exhibit Ex. 4 Outreach CAO, # 5 Exhibit Ex. 5 Mercer Responses to Pls' and Defends' Comments)(Swanson, Jane) (Entered: 09/07/2015)

09/07/2015

1375

Additional Attachments to Main Document: 1374 Response to Motion,, 1298 MOTION to Vacate The First Modified Corrective Action Order: Outreach and Informing, Section III of the Corrective Action Order: Managed Care, and Related Outreach and Informing Consent Decree Paragraphs.. (Attachments: # 1 Exhibit Ex. 9 January 2014 Draft Outreach Study Report, # 2 Exhibit Ex. 10 Defends' Comments on Sept. 2013 Draft Report, # 3 Exhibit Ex. 11 Pls' Comments on Draft Outreach Study Reports)(Swanson, Jane) (Entered: 09/07/2015)

09/07/2015

1376

Additional Attachments to Main Document: 1374 Response to Motion,,.. (Attachments: # 1 Exhibit Ex. 13 Quarterly Monitoring Report excerpts Maximus re: non−compliance, # 2 Exhibit Ex. 14 Medicaid Managed Care Initiatives, # 3 Exhibit Ex. 15 Maximus Corrective Action Plan, # 4 Exhibit Ex. 16 Med−ID Card Sample, # 5 Exhibit Ex. 17 Extra Effort Referrals Report, # 6 Exhibit Ex. 18 Outreach Effectiveness Report excerpt)(Swanson, Jane) (Entered: 09/07/2015)

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09/07/2015 1377 Additional Attachments to Main Document: 1374 Response to Motion,,.. (Attachments: # 1 Exhibit Ex. 19 Managed Care CAO, # 2 Exhibit Ex. 20 part 1 Migrant Activity Reports, # 3 Exhibit Ex. 20 part 2 Migrant Activity Reports, # 4 Exhibit Ex. 20 part 3 Migrant Activity Reports)(Swanson, Jane) (Entered: 09/07/2015)

09/07/2015

1378

Additional Attachments to Main Document: 1374 Response to Motion,,.. (Attachments: # 1 Exhibit Ex. 21 July 2015 QMR excerpt eligibility office spot checks, # 2 Exhibit Ex. 22 April 2015 QMR excerpt eligibility office spot checks, # 3 Exhibit Ex. 23 provider requested outreach report, # 4 Exhibit Ex. 24 2014 CMS 416 Report, # 5 Exhibit Ex. 25 Star Kids pirntout, # 6 Exhibit Ex. 26 Jan. 2015 QMR excerpt eligibility office spot checks, # 7 Text of Proposed Order)(Swanson, Jane) (Entered: 09/07/2015)

09/09/2015

1379

RESPONSE in Opposition re 1298 MOTION to Vacate The First Modified Corrective Action Order: Outreach and Informing, Section III of the Corrective Action Order: Managed Care, and Related Outreach and Informing Consent Decree Paragraphs AMENDED filed by All Plaintiffs, Maria Ayala, Crystal Noelevol Brown, James Curtis Brown, CLASS MEMBERS, Nicole Carroll, Martha Doe, Mary. Fisher, Dominique Shantel Frazar, Jeneva Frazar, Carla Frew, Linda Frew, Shannon Garcia, Charlotte Garvin, Mary Jane Garza, Gloria Padilla, Jeremiah DeMark Phillips, Russell Kline Walton. (Attachments: # 1 Exhibit Ex. 1Summer 2015 correspondence about possible outreach agree, # 2 Exhibit Ex. 2 checkup reports for 2012, # 3 Exhibit Ex. 3 Dental Managed Care Performance Indicator Dashboard Results, # 4 Exhibit Ex. 4 Modified Outreach Corrective Action Order, # 5 Exhibit Ex. 5 Plaintiffs and Defendants Comments about Mercer Phase 1 Outreach Study Report; Mercer Responses, # 6 Exhibit Ex. 6 Office of Management and Budget Survey Guidance, # 7 Exhibit Ex. 7 September 2013 draft of Outreach Study final report, # 8 Exhibit Ex. 8 October 2013 draft of final Outreach Study report)(Garrigan, Timothy) (Entered: 09/09/2015)

09/09/2015

1380

Additional Attachments to Main Document: 1379 Response in Opposition to Motion,,,,.. (Attachments: # 1 Exhibit Ex. 9 January 2014 draft of Outreach Study final report, # 2 Exhibit Ex. 10 Defendants' comments on September 2013 draft of Outreac, # 3 Exhibit Ex. 11 Plaintiffs' comments on drafts of Outreach Study final r, # 4 Exhibit Ex. 12 Mercer Response to Plaintiffs' and HHSC Comments re October 2013 draft Outreach Study report, # 5 Exhibit Ex. 13 QMR excerpts reporting Maximus failure to send outreach, # 6 Exhibit Ex. 14 Medicaid Managed Care Initiatives December 2011, # 7 Exhibit Ex. 15 2015 Maximus Corrective Action Plan)(Garrigan, Timothy) (Entered: 09/09/2015)

09/09/2015

1381

Additional Attachments to Main Document: 1379 Response in Opposition to Motion,,,,.. (Attachments: # 1 Exhibit Ex. 16 Med−ID Card Sample and Explanation, # 2 Exhibit Ex. 17 Extra Effort Referral totals from July 2015 QMR, # 3 Exhibit Ex. 18 Outreach Effectiveness Report excerpt from July 2015 QMR, # 4 Exhibit Ex. 19 Managed Care CAO, # 5 Exhibit Ex.20 Medicaid HMOS Activities Reports, # 6 Exhibit Ex. 21 Eligibility Office Spot Check Reviews July 2015 QMR)(Garrigan, Timothy) (Entered: 09/09/2015)

09/09/2015

1382

Additional Attachments to Main Document: 1379 Response in Opposition to Motion,,,,.. (Attachments: # 1 Exhibit Ex. 22 Eligibility Office Spot Check Reviews from April 2015 QM, # 2 Exhibit Ex. 23 Provider Requested Outreach Report, # 3 Exhibit Ex. 24 Texas 2014 CMS 416 Report about EPSDT Services, # 4 Exhibit Ex. 25 STAR Kids Overview from Defendants' Website, # 5 Exhibit Ex. 26 Eligibility Office Spot Check Reviews January QMR, # 6 Text of Proposed Order Proposed Order Denying Defends' Rule 60(b)(5) Outreach Motion)(Garrigan, Timothy) (Entered: 09/09/2015)

09/14/2015 1383 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motion Hearing held on 1/16/2015 before Judge Schell. Court Reporter/Transcriber: Denise Carrillo,Telephone number: 469/500−7610.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.txed.uscourts.gov

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Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/8/2015. Redacted Transcript Deadline set for 10/19/2015. Release of Transcript Restriction set for 12/17/2015. (pad, ) (Entered: 09/14/2015)

09/14/2015 1384 Amended MOTION Scheduling re: Checkups and Managed Care CAOs re 637 Joint MOTION for Entry of an Agreed Corrective Action Order by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 09/14/2015)

09/17/2015

1385

ORDER granting 1384 AMENDED JOINT MOTION TO SCHEDULE COURT FILINGSCONCERNING THE CORRECTIVE ACTION ORDER: CHECKUPS (Dkt#637−4), THECORRECTIVE ACTION ORDER: MANAGED CARE (Dkt#637−6) AND RELATEDDECREE PROVISIONS. Signed by Judge Richard A. Schell on 9/17/15. (cm, ) (Entered: 09/21/2015)

09/25/2015 1386 MOTION for Leave to File Exhibits by All Defendants. (Attachments: # 1 Text of Proposed Order)(Barbour, Laura) (Entered: 09/25/2015)

09/25/2015

1387

REPLY to Response to Motion re 1225 MOTION to Vacate The Dental Assessment Portion of the Health Outcomes Measures and Dental Assessment Corrective Action Order, and Related Consent Decree Provisions filed by All Defendants. (Attachments: # 1 Exhibit List, # 2 Exhibit 24. Deposition of Vy Nguyen, # 3 Exhibit 25. Defendants' 7/26/14 Correspondence, # 4 Exhibit 26. Declaration of Kathy Phipps, # 5 Exhibit 27. CDC Oral Health Data, # 6 Exhibit 28. Plaintiffs' 6/11/08 Correspondence, # 7 Exhibit 29. Defendants' 12/19/12 Correspondence, # 8 Exhibit 30. Defendants' 10/11/11 Correspondence, # 9 Exhibit 31. Plaintiffs' 8/22/12 Correspondence)(Barbour, Laura) (Entered: 09/25/2015)

09/25/2015

1388

Additional Attachments to Main Document: 1387 Reply to Response to Motion,,.. (Attachments: # 1 Exhibit 32. Supplemental Declaration of Dorothy Mandell, # 2 Exhibit 33. CV of Gita Mirchandani, # 3 Exhibit 34. Defendants' 8/8/12 Corrspondence, # 4 Exhibit 35. Third Grade Inter−Rater Reliability Data, # 5 Exhibit 36. Plaintiffs' 11/15/12 Correspondence, # 6 Exhibit 37. Plaintiffs' 7/23/12 Correspondence)(Barbour, Laura) (Entered: 09/25/2015)

09/25/2015 1389 Unopposed MOTION for Leave to File Excess Pages by All Defendants. (Attachments: # 1 Text of Proposed Order)(Barbour, Laura) (Entered: 09/25/2015)

09/28/2015 1390 MOTION to Amend/Correct 1386 MOTION for Leave to File Exhibits by All Defendants. (Attachments: # 1 Text of Proposed Order)(Barbour, Laura) (Entered: 09/28/2015)

09/29/2015 1391 ORDER granting 1291 Motion for Attorney Fees. Signed by Judge Richard A. Schell on 9/28/2015. (pad, ) (Entered: 09/29/2015)

09/29/2015 1392 ORDER granting 1289 Motion for Extension of Time to File Proposed Findings and Conclusions. Signed by Judge Richard A. Schell on 9/28/2015. (pad, ) (Entered: 09/29/2015)

09/29/2015 1393 ORDER granting 1290 Motion for Extension of Time to File Briefing Scheduling for Defendants' Rule 60(b)(5) Motion. Signed by Judge Richard A. Schell on 9/28/2015. (pad, ) (Entered: 09/29/2015)

09/29/2015 1394 ORDER granting 1292 Motion for Extension of Time to File Response/Reply. Signed by Judge Richard A. Schell on 9/28/2015. (pad, ) (Entered: 09/29/2015)

09/29/2015 1395 ORDER granting 1297 Motion for Extension of Time to File for 2014 Attorney Fees. Signed by Judge Richard A. Schell on 9/28/2015. (pad, ) (Entered: 09/29/2015)

09/29/2015 1396 ORDER granting 1147 Motion to Vacate the Corrective Action Order: Health Care Provider Training; denying 1338 Motion Supplement Provider Training Response. Signed by Judge Richard A. Schell on 9/28/2015. (pad, ) (Entered: 09/29/2015)

09/29/2015 1397 ORDER granting 1169 Sealed Motion to Vacate the Transportation Program Corrective Action Order. Signed by Judge Richard A. Schell on 9/28/2015. (pad, ) (Entered: 09/29/2015)

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09/29/2015 1398 ORDER denying 1255 Motion for Attorney Fees. Signed by Judge Richard A. Schell on 9/28/2015. (pad, ) (Entered: 09/29/2015)

09/29/2015 1399 ORDER granting 1319 Motion for Leave to File Excess Pages. Signed by Judge Richard A. Schell on 9/28/2015. (pad, ) (Entered: 09/29/2015)

09/29/2015 1400 ORDER granting 1320 Motion for Extension of Time to File. Signed by Judge Richard A. Schell on 9/28/2015. (pad, ) (Entered: 09/29/2015)

09/29/2015 1401 ORDER granting 1329 Motion to Withdraw as Attorney. Attorney Linda Ann Halpern terminated. Signed by Judge Richard A. Schell on 9/29/2015. (pad, ) (Entered: 09/29/2015)

09/29/2015 1402 ORDER granting 1336 Motion for Extension of Time to File Response/Reply. Signed by Judge Richard A. Schell on 9/28/2015. (pad, ) (Entered: 09/29/2015)

09/29/2015 1403 ORDER granting 1339 Motion to Withdraw as Attorney. Attorney James Byron Eccles terminated. SEAN FLAMMER be entered as Attorney in Charge for Defendants. Signed by Judge Richard A. Schell on 9/28/2015. (pad, ) (Entered: 09/29/2015)

09/29/2015 1404 ORDER granting 1340 Motion to Withdraw as Attorney. Attorney John Robert Heard terminated. Signed by Judge Richard A. Schell on 9/28/2015. (pad, ) (Entered: 09/29/2015)

09/29/2015 1405 ORDER granting 1349 Motion for Extension of Time to File Response/Reply. Signed by Judge Richard A. Schell on 9/28/2015. (pad, ) (Entered: 09/29/2015)

09/29/2015 1406 ORDER granting 1352 Motion for Extension of Time to File Response/Reply. Signed by Judge Richard A. Schell on 9/28/2015. (pad, ) (Entered: 09/29/2015)

09/29/2015 1407 ORDER granting 1389 Motion for Leave to File Excess Pages. Signed by Judge Richard A. Schell on 9/29/2015. (pad, ) (Entered: 09/29/2015)

09/29/2015 1408 ORDER granting 1390 Motion to file Additional Exhibits. Signed by Judge Richard A. Schell on 9/29/2015. (pad, ) (Entered: 09/29/2015)

09/30/2015

1409

Unopposed MOTION for Extension of Time to File Response/Reply as to 1298 MOTION to Vacate The First Modified Corrective Action Order: Outreach and Informing, Section III of the Corrective Action Order: Managed Care, and Related Outreach and Informing Consent Decree Paragraphs by All Defendants. (Attachments: # 1 Text of Proposed Order)(Barbour, Laura) (Entered: 09/30/2015)

10/02/2015

1410

ORDER granting 1409 Motion for Extension of Time to File Response/Reply re 1298 MOTION to Vacate The First Modified Corrective Action Order: Outreach and Informing, Section III of the Corrective Action Order: Managed Care, and Related Outreach and Informing Consent Decree Paragraphs. Replies due by 10/7/2015.. Signed by Judge Richard A. Schell on 10/1/2015. (pad, ) (Entered: 10/02/2015)

10/07/2015 1411 Unopposed MOTION for Leave to File to File Exhibits by All Defendants. (Attachments: # 1 Text of Proposed Order)(Barbour, Laura) (Entered: 10/07/2015)

10/07/2015

1412

REPLY to Response to Motion re 1298 MOTION to Vacate The First Modified Corrective Action Order: Outreach and Informing, Section III of the Corrective Action Order: Managed Care, and Related Outreach and Informing Consent Decree Paragraphs filed by All Defendants. (Attachments: # 1 Exhibit List, # 2 Exhibit 21 Dkt. 1324−3 MAXIMUS Written Outreach Corrective Action Plan, # 3 Exhibit 22 July 2015 QMR Excerpt, # 4 Exhibit 23 Plaintiffs' Aug. 1, 2011 Correspondence, # 5 Exhibit 24 Draft Phase 3 Study Design, # 6 Exhibit 25 Plaintiffs' May 16, 2012 Correspondence, # 7 Exhibit 26 Defendants' July 9, 2012 Correspondence, # 8 Exhibit 27 Texas Medicaid Application, # 9 Exhibit 28 Rincon Study)(Barbour, Laura) (Entered: 10/07/2015)

10/07/2015 1413 Additional Attachments to Main Document: 1412 Reply to Response to Motion,,,.. (Attachments: # 1 Exhibit 29 MAXIMUS THSteps Monthly Report May 2015, # 2 Exhibit 30 2014 Conference Period Correspondence)(Barbour, Laura) (Entered: 10/07/2015)

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10/07/2015 1414 Unopposed MOTION for Leave to File Excess Pages by All Defendants. (Attachments: # 1 Text of Proposed Order)(Barbour, Laura) (Entered: 10/07/2015)

10/21/2015

1415

Unopposed MOTION for Extension of Time to File Response/Reply as to 1298 MOTION to Vacate The First Modified Corrective Action Order: Outreach and Informing, Section III of the Corrective Action Order: Managed Care, and Related Outreach and Informing Consent Decree Paragraphs by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 10/21/2015)

10/28/2015

1416

NOTICE by All Defendants of Filing of October 2015 Quarterly Monitoring Report (Attachments: # 1 October 2015 Quarterly Monitoring Report, # 2 Exhibit List, # 3 Exhibit 1 MAXIMUS THSteps Monthly Report − June, # 4 Exhibit 1 MAXIMUS THSteps Monthly Report − July, # 5 Exhibit 1 MAXIMUS THSteps Monthly Report − August, # 6 Exhibit 2 THSteps Eligibility Office Administrative Evaluations, # 7 Exhibit 3 DSHS THSteps Provider Relations Activities Reports, # 8 Exhibit 4 THSteps Written Outreach and Supplemental Report, # 9 Exhibit 5 Outreach Effectiveness Reports for Medical and Dental Checkups, # 10 Exhibit 6 Activities Report for Medicaid Managed Care Organizations, # 11 Exhibit 7 THSteps Active and Enrolled Dental Provider Participation Report, # 12 Exhibit 8 Medicaid Managed Care Children of Migrant Farmworkers Annual Report State Fiscal Year 2015, # 13 Exhibit 9 Timely Medical Checkup Annual Summary SFY 2013, # 14 Exhibit 10 Health Plan Timely Medical Checkup Reports SFY 2013, # 15 Exhibit 11 MTM Toll−free Number Compliance Report, # 16 Exhibit 12 SFY 2015 Q3 Report on Case Management for Children and Pregnant Women, # 17 Exhibit 13 TMHP Provider Service Report Excerpts)(Flammer, Sean) (Entered: 10/28/2015)

11/04/2015 1417 Opposed MOTION for Court Resolution Concerning the Health Outcomes Measures Second Study by All Defendants. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2 − part 1)(Barbour, Laura) Modified on 6/21/2016 (cm, ). (Entered: 11/04/2015)

11/04/2015 1418 Additional Attachments to Main Document: 1417 Opposed MOTION for Court Resolution Concerning the Health Outcomes Measures Second Study .. (Attachments: # 1 Exhibit 2 − part 2)(Barbour, Laura) (Entered: 11/04/2015)

11/04/2015 1419 Additional Attachments to Main Document: 1417 Opposed MOTION for Court Resolution Concerning the Health Outcomes Measures Second Study .. (Attachments: # 1 Exhibit 2 − part 3)(Barbour, Laura) (Entered: 11/04/2015)

11/04/2015 1420 Additional Attachments to Main Document: 1417 Opposed MOTION for Court Resolution Concerning the Health Outcomes Measures Second Study .. (Attachments: # 1 Exhibit 2 − part 4, # 2 Exhibit 3, # 3 Text of Proposed Order)(Barbour, Laura) (Entered: 11/04/2015)

11/18/2015 1421 MOTION for Leave to File Excess Pages by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Proposed Order)(Garrigan, Timothy) (Entered: 11/18/2015)

11/18/2015

1422

SUR−REPLY to Reply to Response to Motion re 1298 MOTION to Vacate The First Modified Corrective Action Order: Outreach and Informing, Section III of the Corrective Action Order: Managed Care, and Related Outreach and Informing Consent Decree Paragraphs filed by All Plaintiffs. (Attachments: # 1 Exhibit Exhibit List, # 2 Exhibit Exhibit 27 Part A, # 3 Exhibit Exhibit 27 Part B, # 4 Exhibit Exhibit 28, # 5 Exhibit Exhibit 29, # 6 Exhibit Exhibit 30, # 7 Exhibit Exhibit 31, # 8 Exhibit Exhibit 32, # 9 Exhibit Exhibit 33, # 10 Exhibit Exhibit 34, # 11 Exhibit Exhibit 35)(Garrigan, Timothy) (Entered: 11/18/2015)

11/20/2015

1423

Agreed MOTION for Extension of Time to File Response/Reply as to 1417 Opposed MOTION for Court Resolution Concerning the Health Outcomes Measures Second Study by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Proposed Order for Agreed Motion for Additional Time to File the Response and Reply Regarding Defendants' Opposed Motion for Court Resolution Concerning the Health Outcome Measures Second Study (Dkt 1417))(Garrigan, Timothy) (Entered: 11/20/2015)

11/24/2015

1424

Unopposed MOTION for Extension of Time to File Response/Reply as to 1225 MOTION to Vacate The Dental Assessment Portion of the Health Outcomes Measures and Dental Assessment Corrective Action Order, and Related Consent Decree Provisions by All Plaintiffs. (Attachments: # 1 Order on Motion)(Craig, Timothy) (Entered: 11/24/2015)

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12/14/2015

1425

RESPONSE in Opposition re 1417 Opposed MOTION for Court Resolution Concerning the Health Outcomes Measures Second Study filed by All Plaintiffs. (Attachments: # 1 Exhibit Ex. 1 1st Study of HOM#10, # 2 Exhibit Ex. 2 Vaccines for Children printout, # 3 Exhibit Ex. 3 Minimum Texas Vaccine Requirements for Child Care Facilities, # 4 Exhibit Ex. 4 Overall Estimated Texas Immunization Rates, # 5 Exhibit Ex. 5 Numbers of Children Excluded by 11 Month Enrollment Requirement, # 6 Exhibit Ex. 6 Rough Comparison of Dental Checkup Rates by Length of Medicaid Enrollment, # 7 Text of Proposed Order)(Swanson, Jane) (Entered: 12/14/2015)

12/14/2015 1426 Agreed MOTION for Leave to File Excess Pages by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 12/14/2015)

12/21/2015

1427

Agreed MOTION for Extension of Time to File Response/Reply as to 1225 MOTION to Vacate The Dental Assessment Portion of the Health Outcomes Measures and Dental Assessment Corrective Action Order, and Related Consent Decree Provisions by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 12/21/2015)

12/21/2015 1428 Agreed MOTION re 1385 Order on Motion for Miscellaneous Relief, by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 12/21/2015)

01/08/2016 1429 Unopposed MOTION for Leave to File Excess Pages by David L Lakey, Chris Traylor. (Attachments: # 1 Text of Proposed Order)(Barbour, Laura) (Entered: 01/08/2016)

01/08/2016 1430 REPLY to Response to Motion re 1417 Opposed MOTION for Court Resolution Concerning the Health Outcomes Measures Second Study filed by David L Lakey, Chris Traylor. (Barbour, Laura) (Entered: 01/08/2016)

01/15/2016

1431

SUR−REPLY to Reply to Response to Motion re 1225 MOTION to Vacate The Dental Assessment Portion of the Health Outcomes Measures and Dental Assessment Corrective Action Order, and Related Consent Decree Provisions filed by All Plaintiffs. (Attachments: # 1 Exhibit Deposition of Dr. Phipps, # 2 Exhibit Deposition of Dr. Mandel)(Craig, Timothy) (Entered: 01/15/2016)

01/18/2016 1432 SUR−REPLY to Reply to Response to Motion re 1417 Opposed MOTION for Court Resolution Concerning the Health Outcomes Measures Second Study filed by All Plaintiffs. (Swanson, Jane) (Entered: 01/18/2016)

01/18/2016 1433 Agreed MOTION for Leave to File Excess Pages by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 01/18/2016)

01/19/2016 1434 MOTION for Leave to File Excess Pages by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Proposed Order)(Craig, Timothy) (Entered: 01/19/2016)

01/19/2016

1435

SUR−REPLY to Reply to Response to Motion re 1225 MOTION to Vacate The Dental Assessment Portion of the Health Outcomes Measures and Dental Assessment Corrective Action Order, and Related Consent Decree Provisions filed by All Plaintiffs. (Attachments: # 1 Exhibit Exhibit 1: Deposition of Dr. Phipps, # 2 Exhibit Exhibit 2: Deposition of Dr. Mandel, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4)(Craig, Timothy) (Entered: 01/19/2016)

01/20/2016

1436

SUR−REPLY to Reply to Response to Motion re 1225 MOTION to Vacate The Dental Assessment Portion of the Health Outcomes Measures and Dental Assessment Corrective Action Order, and Related Consent Decree Provisions filed by All Plaintiffs. (Attachments: # 1 Exhibit Deposition of Dr. Phipps, # 2 Exhibit Deposition of Dr. Mandel, # 3 Exhibit List of schools, # 4 Exhibit List of selected schools)(Craig, Timothy) (Entered: 01/20/2016)

01/22/2016

1437

MOTION to Enforce Judgment by All Plaintiffs. (Attachments: # 1 Exhibit List, # 2 Exhibit Consent Decree, # 3 Exhibit Memorandum Opinion, # 4 Exhibit Check Ups CAO, # 5 Exhibit Managed Care CAO, # 6 Exhibit Texas Health Steps Medical and Dental Checkups for Children in Foster Care SFY 2014, # 7 Exhibit Altarum First Study for Checkup Completeness, # 8 Exhibit SFY 2013 THSteps Medical Checkups Annual Report, # 9 Exhibit Dental Checkup and Sealant Performance Indicator Dashboard Results, # 10 Exhibit SFY 2008−2011 New and Existing Member Incentive and Disincentive Totals, # 11 Exhibit HHSC Uniform Managed Care Manual, CH 12.18, # 12 Exhibit Defendants' Objections and Responses to Plaintiffs'

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Oct 2015 Interrogatories and Requests for Production of Documents about Checkups and Managed Care CAO and Consent Decree Provisions, # 13 Exhibit QMR Excerpts, # 14 Exhibit Altarum Second Study, # 15 Exhibit Frew No Care Study, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Text of Proposed Order CUMC)(Garrigan, Timothy) (Entered: 01/22/2016)

01/29/2016

1438

NOTICE by All Defendants of Filing Quarterly Monitoring Report − January 2016 (Attachments: # 1 Exhibit January 2016 Quarterly Monitoring Report, # 2 Exhibit List, # 3 Exhibit 1 MAXIMUS THSteps Reports, # 4 Exhibit 2 THSteps Eligibility Office Administrative Evaluations, # 5 Exhibit 3 DSHS THSteps Provider Relations Activities Reports, # 6 Exhibit 4 THSteps Written Outreach and Supplemental Report, # 7 Exhibit 5 Outreach Effectiveness Reports for Medical and Dental Checkups, # 8 Exhibit 6 Activities Report for Medicaid Managed Care Organizations, # 9 Exhibit 7 THSteps Active and Enrolled Dental Provider Participation Report, # 10 Exhibit 8 Map − Children of Migrant Farmworkers in Managed Care HMOs, # 11 Exhibit 9 MTM Toll−free Number Compliance Report, # 12 Exhibit 10 SFY 2014 Annual Report on Targeted Case Management, # 13 Exhibit 11 SFY 2015 Q4 Report on Case Management for Children and Pregnant Women, # 14 Exhibit 12 TMHP Provider Service Report − Excerpts)(Flammer, Sean) (Entered: 01/29/2016)

01/29/2016 1439 Unopposed MOTION for Leave to File to File Response to Plaintiffs' Sur−Reply by All Defendants. (Attachments: # 1 Text of Proposed Order)(Barbour, Laura) (Entered: 01/29/2016)

01/29/2016 1440 REPLY to Response to Motion re 1225 MOTION to Vacate The Dental Assessment Portion of the Health Outcomes Measures and Dental Assessment Corrective Action Order, and Related Consent Decree Provisions (Response to Plaintiffs' Sur−Reply [Dkt. 1436] filed by All Defendants. (Barbour, Laura) (Entered: 01/29/2016)

02/08/2016 1441 MOTION for Leave to File Reply to Defendants' Response to Plaintiffs' Sur−Reply by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Proposed Order)(Craig, Timothy) (Entered: 02/08/2016)

02/08/2016 1442 REPLY to Response to Motion re 1225 MOTION to Vacate The Dental Assessment Portion of the Health Outcomes Measures and Dental Assessment Corrective Action Order, and Related Consent Decree Provisions filed by All Plaintiffs. (Craig, Timothy) (Entered: 02/08/2016)

02/09/2016 1443 Agreed MOTION for Extension of Time to File 2015 Atty Fee Claims by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 02/09/2016)

02/17/2016 1444 RESPONSE to Motion re 1441 MOTION for Leave to File Reply to Defendants' Response to Plaintiffs' Sur−Reply filed by All Defendants. (Flammer, Sean) (Entered: 02/17/2016)

03/01/2016 1445 Appeal Remark re 1117 Notice of Appeal : The petition for a writ of certiorari is denied. (pad, ) (Entered: 03/01/2016)

03/04/2016

1446

Opposed MOTION to Vacate 1437 MOTION to Enforce Judgment CAO Managed Care and CAO Check Ups and Related Consent Decree Paragraphs by All Defendants. (Attachments: # 1 Exhibit List, # 2 Exhibit 1 Texas medicaid and CHIP in Perspective, # 3 Exhibit 2 Declaration of Nan Yang)(Flammer, Sean) (Entered: 03/04/2016)

03/04/2016

1447

Additional Attachments to Main Document: 1446 Opposed MOTION to Vacate 1437 MOTION to Enforce Judgment CAO Managed Care and CAO Check Ups and Related Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 3 Declaration of Rudy Villarreal, # 2 Exhibit 4 CAO and CD Evidence Table)(Flammer, Sean) (Entered: 03/04/2016)

03/04/2016 1448 Additional Attachments to Main Document: 1446 Opposed MOTION to Vacate 1437 MOTION to Enforce Judgment CAO Managed Care and CAO Check Ups and Related Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 5 Timely Checkup Reports − part 1)(Flammer, Sean) (Entered: 03/04/2016)

03/04/2016 1449 Additional Attachments to Main Document: 1446 Opposed MOTION to Vacate 1437 MOTION to Enforce Judgment CAO Managed Care and CAO Check Ups and Related

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Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 5 Timely Checkup Reports − part 2)(Flammer, Sean) (Entered: 03/04/2016)

03/04/2016

1450

Additional Attachments to Main Document: 1446 Opposed MOTION to Vacate 1437 MOTION to Enforce Judgment CAO Managed Care and CAO Check Ups and Related Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 6 HOM Contract Excerpts, # 2 Exhibit 7 Declaration of Jon Ann Roznovak, # 3 Exhibit 8 Aetna − Bindel Declaration, # 4 Exhibit 8 Aetna − De Luna Declaration, # 5 Exhibit 8 Aetna − Dixon Declaration, # 6 Exhibit 8 Aetna − Gill Declaration)(Flammer, Sean) (Entered: 03/04/2016)

03/04/2016

1451

Additional Attachments to Main Document: 1446 Opposed MOTION to Vacate 1437 MOTION to Enforce Judgment CAO Managed Care and CAO Check Ups and Related Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 9 Amerigroup − Mora Declaration, # 2 Exhibit 10 Blue Cross Blue Shield − Fagen Declaration)(Flammer, Sean) (Entered: 03/04/2016)

03/04/2016

1452

Additional Attachments to Main Document: 1446 Opposed MOTION to Vacate 1437 MOTION to Enforce Judgment CAO Managed Care and CAO Check Ups and Related Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 11 CHRISTUS − Leal Declaration, # 2 Exhibit 12 Cigna HealthSpring − Gonzalez Declaration, # 3 Exhibit 12 Cigna HealthSpring − Hernandez Declaration, # 4 Exhibit 12 Cigna HealthSpring − Howard Declaration, # 5 Exhibit 12 Cigna HealthSpring − McDowell Declaration, # 6 Exhibit 12 Cigna HealthSpring − Morales Declaration)(Flammer, Sean) (Entered: 03/04/2016)

03/04/2016

1453

Additional Attachments to Main Document: 1446 Opposed MOTION to Vacate 1437 MOTION to Enforce Judgment CAO Managed Care and CAO Check Ups and Related Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 12 Cigna HealthSpring − Rafiq Declaration, # 2 Exhibit 12 Cigna HealthSpring − Vigilante Declaration, # 3 Exhibit 13 Community First − Castillo Declaration, # 4 Exhibit 13 Community First − Hecox Declaration, # 5 Exhibit 13 Community First − Wheeler Declaration, # 6 Exhibit 15 Cook Children's Hebert Declaration, # 7 Exhibit 16 DentaQuest − Ornelas−Roberts Declaration, # 8 Exhibit 17 Driscoll − Peterson Declaration)(Flammer, Sean) (Entered: 03/04/2016)

03/04/2016

1454

Additional Attachments to Main Document: 1446 Opposed MOTION to Vacate 1437 MOTION to Enforce Judgment CAO Managed Care and CAO Check Ups and Related Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 18 El Paso First − Martinez Declaration, # 2 Exhibit 19 FirstCare − Ham Declaration, # 3 Exhibit 20 MCNA − Lacasa Declaration)(Flammer, Sean) (Entered: 03/04/2016)

03/04/2016 1455 Additional Attachments to Main Document: 1446 Opposed MOTION to Vacate 1437 MOTION to Enforce Judgment CAO Managed Care and CAO Check Ups and Related Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 21 Molina − Kidd Declaration)(Flammer, Sean) (Entered: 03/04/2016)

03/04/2016

1456

Additional Attachments to Main Document: 1446 Opposed MOTION to Vacate 1437 MOTION to Enforce Judgment CAO Managed Care and CAO Check Ups and Related Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 22 Parkland − Bindle Declaration, # 2 Exhibit 22 Parkland − De Luna Declaration, # 3 Exhibit 22 Parkland − Dixon Declaration, # 4 Exhibit 22 Parkland − Gil Declaration, # 5 Exhibit 23 RightCare − Jorgensen Declaration)(Flammer, Sean) (Entered: 03/04/2016)

03/04/2016

1457

Additional Attachments to Main Document: 1446 Opposed MOTION to Vacate 1437 MOTION to Enforce Judgment CAO Managed Care and CAO Check Ups and Related Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 24 Sendero − McFadden Declaration, # 2 Exhibit 25 Seton − Webber Declaration)(Flammer, Sean) (Entered: 03/04/2016)

03/04/2016 1458 Additional Attachments to Main Document: 1446 Opposed MOTION to Vacate 1437 MOTION to Enforce Judgment CAO Managed Care and CAO Check Ups and Related Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 26 Superior − Munn Declaration with Atts. A−P)(Flammer, Sean) (Entered: 03/04/2016)

03/04/2016 1459 Additional Attachments to Main Document: 1446 Opposed MOTION to Vacate 1437 MOTION to Enforce Judgment CAO Managed Care and CAO Check Ups and Related

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Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 26 Superior − Munn Declaration Atts. Q−LL, # 2 Exhibit 27 Texas Children's − Cover Declaration, # 3 Exhibit 27 Texas Children's − Levermann Declaration)(Flammer, Sean) (Entered: 03/04/2016)

03/04/2016 1460 Additional Attachments to Main Document: 1446 Opposed MOTION to Vacate 1437 MOTION to Enforce Judgment CAO Managed Care and CAO Check Ups and Related Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 28 United HealthCare − Deska Declaration)(Flammer, Sean) (Entered: 03/04/2016)

03/04/2016

1461

Additional Attachments to Main Document: 1446 Opposed MOTION to Vacate 1437 MOTION to Enforce Judgment CAO Managed Care and CAO Check Ups and Related Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 29 Declaration of Betsy Shenkman, # 2 Exhibit 30 Declaration of Michelle Long, # 3 Exhibit 31 Declaration of Susan Bricker)(Flammer, Sean) (Entered: 03/04/2016)

03/04/2016

1462

Additional Attachments to Main Document: 1446 Opposed MOTION to Vacate 1437 MOTION to Enforce Judgment CAO Managed Care and CAO Check Ups and Related Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 32 Altarum No Care Study Report, # 2 Exhibit 33 Declaration of Rajendra Parikh, # 3 Exhibit 34 Migrant Farmworker Incentives and Disincentives postings, # 4 Exhibit 35 Contract Excerpts Regarding Incentives and Disincentives, # 5 Exhibit 36 Declaration of Marguerite Laccabue, # 6 Exhibit 37 Texas Advisory Panel Minutes)(Flammer, Sean) (Entered: 03/04/2016)

03/04/2016

1463

Additional Attachments to Main Document: 1446 Opposed MOTION to Vacate 1437 MOTION to Enforce Judgment CAO Managed Care and CAO Check Ups and Related Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 38 Jan. 2016 QMR Excerpts, # 2 Exhibit 39 Defendants' Presentations to Dental Stakeholders, # 3 Exhibit 40 Deposition of William D. Steinhauer, DDS, # 4 Exhibit 41 2014 CMS−416, National, # 5 Exhibit 42 Center for Elimination of Disproportionality and Disparities Webpage)(Flammer, Sean) (Entered: 03/04/2016)

03/04/2016

1464

Additional Attachments to Main Document: 1446 Opposed MOTION to Vacate 1437 MOTION to Enforce Judgment CAO Managed Care and CAO Check Ups and Related Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 43 Report of Medical Checkup Completeness, April 2010, # 2 Exhibit 44 Declaration of Gary Rutenberg, # 3 Exhibit 45 Declaration of Emily Parsons)(Flammer, Sean) (Entered: 03/04/2016)

03/04/2016 1465 Additional Attachments to Main Document: 1446 Opposed MOTION to Vacate 1437 MOTION to Enforce Judgment CAO Managed Care and CAO Check Ups and Related Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 45 Declaration of Emily Parsons − Atts. A−B)(Flammer, Sean) (Entered: 03/04/2016)

03/04/2016 1466 Additional Attachments to Main Document: 1446 Opposed MOTION to Vacate 1437 MOTION to Enforce Judgment CAO Managed Care and CAO Check Ups and Related Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 45 Declaration of Emily Parsons − Atts. B−C)(Flammer, Sean) (Entered: 03/04/2016)

03/04/2016 1467 Additional Attachments to Main Document: 1446 Opposed MOTION to Vacate 1437 MOTION to Enforce Judgment CAO Managed Care and CAO Check Ups and Related Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 45 Declaration of Emily Parsons − Atts. C−D)(Flammer, Sean) (Entered: 03/04/2016)

03/04/2016 1468 Additional Attachments to Main Document: 1446 Opposed MOTION to Vacate 1437 MOTION to Enforce Judgment CAO Managed Care and CAO Check Ups and Related Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 45 Declaration of Emily Parsons − Att. D (con't))(Flammer, Sean) (Entered: 03/04/2016)

03/04/2016 1469 Additional Attachments to Main Document: 1446 Opposed MOTION to Vacate 1437 MOTION to Enforce Judgment CAO Managed Care and CAO Check Ups and Related Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 45 Declaration of Emily Parsons − Atts. D−E)(Flammer, Sean) (Entered: 03/04/2016)

03/04/2016 1470 Additional Attachments to Main Document: 1446 Opposed MOTION to Vacate 1437 MOTION to Enforce Judgment CAO Managed Care and CAO Check Ups and Related Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 45 Declaration of Emily

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Parsons − Att. E (con't))(Flammer, Sean) (Entered: 03/04/2016)

03/04/2016 1471 Additional Attachments to Main Document: 1446 Opposed MOTION to Vacate 1437 MOTION to Enforce Judgment CAO Managed Care and CAO Check Ups and Related Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 45 Declaration of Emily Parsons − Atts. E−F)(Flammer, Sean) (Entered: 03/04/2016)

03/04/2016 1472 Additional Attachments to Main Document: 1446 Opposed MOTION to Vacate 1437 MOTION to Enforce Judgment CAO Managed Care and CAO Check Ups and Related Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 45 Declaration of Emily Parsons − Atts. F−U)(Flammer, Sean) (Entered: 03/04/2016)

03/04/2016 1473 Additional Attachments to Main Document: 1446 Opposed MOTION to Vacate 1437 MOTION to Enforce Judgment CAO Managed Care and CAO Check Ups and Related Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 45 Declaration of Emily Parsons − Atts. V−X)(Flammer, Sean) (Entered: 03/04/2016)

03/04/2016 1474 Additional Attachments to Main Document: 1446 Opposed MOTION to Vacate 1437 MOTION to Enforce Judgment CAO Managed Care and CAO Check Ups and Related Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 45 Declaration of Emily Parsons − Att. X (con't))(Flammer, Sean) (Entered: 03/04/2016)

03/04/2016 1475 Additional Attachments to Main Document: 1446 Opposed MOTION to Vacate 1437 MOTION to Enforce Judgment CAO Managed Care and CAO Check Ups and Related Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 45 Declaration of Emily Parsons − Att. X (con't) part 2)(Flammer, Sean) (Entered: 03/04/2016)

03/04/2016

1476

Additional Attachments to Main Document: 1446 Opposed MOTION to Vacate 1437 MOTION to Enforce Judgment CAO Managed Care and CAO Check Ups and Related Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 46 Oct. 2010 QMR Excerpt, # 2 Exhibit 47 Jan. 2012 QMR Excerpt, # 3 Exhibit 48 Oct. 2013 QMR Excerpt, # 4 Exhibit 49 Jan. 2011 QMR Excerpt, # 5 Exhibit 50 Apr. 2011 QMR Excerpt, # 6 Exhibit 51 Declaration of Paul Bradley Smith)(Flammer, Sean) (Entered: 03/04/2016)

03/04/2016

1477

Additional Attachments to Main Document: 1446 Opposed MOTION to Vacate 1437 MOTION to Enforce Judgment CAO Managed Care and CAO Check Ups and Related Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 52 Second Medical Checkup Completeness Study, # 2 Exhibit 53 Activities Report for Medicaid MCOs, # 3 Exhibit 54 Declaration of Anthony Due West, II, # 4 Exhibit 55 Declaration of Melinda Metteauer)(Flammer, Sean) (Entered: 03/04/2016)

03/04/2016 1478 Additional Attachments to Main Document: 1446 Opposed MOTION to Vacate 1437 MOTION to Enforce Judgment CAO Managed Care and CAO Check Ups and Related Consent Decree Paragraphs.. (Attachments: # 1 Exhibit Ex. 55 Declaration of Melinda Metteauer − Atts. A−E)(Flammer, Sean) (Entered: 03/04/2016)

03/04/2016

1479

Additional Attachments to Main Document: 1446 Opposed MOTION to Vacate 1437 MOTION to Enforce Judgment CAO Managed Care and CAO Check Ups and Related Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 55 Declaration of Melinda Metteauer − Atts. F−P, # 2 Exhibit 56 Texas CMS−416 for FYY 2000, # 3 Exhibit 57 Texas CMS−416 for FFY 2014, # 4 Exhibit 58 Texas Health Steps Dental Checkups 1997−2014, # 5 Exhibit 59 NCQA Child and Adolescent Well−Care Visits and Annual Dental Visits Data, # 6 Exhibit 60 Medicaid Managed Care Children of Migrant Farmworkers Annual Report SFY 2015, # 7 Exhibit 61 Declaration of Richard Stebbins, # 8 Exhibit 62 Uniformed Managed Care Contract Excerpts Regarding Financial Solvency, # 9 Exhibit 63 July 2015 Table of Plaintiffs' Positions on Decree and CAO Compliance, # 10 Exhibit 64 1996 Memorandum of Understanding, # 11 Exhibit 65 2008 Memorandum of Understanding, # 12 Exhibit 66 2014 Memorandum of Understanding, # 13 Exhibit 67 Texas Health Steps Medical and Dental Checkups for Children in Foster Care Reports, # 14 Exhibit 68 Medical Checkups Contract Requirements, # 15 Exhibit 69 Dental Services Contract Requirements)(Flammer, Sean) (Entered: 03/04/2016)

03/04/2016 1480 Additional Attachments to Main Document: 1446 Opposed MOTION to Vacate 1437 MOTION to Enforce Judgment CAO Managed Care and CAO Check Ups and Related Consent Decree Paragraphs.. (Attachments: # 1 Exhibit 70 Contract Excerpts Regarding Encounter Data, # 2 Exhibit 71 1994 CMS−416 Original Submission, # 3

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Exhibit 72 1994 CMS−416 Revised, # 4 Exhibit 73 No Care Correspondence and Discovery Documents, # 5 Exhibit 74 CMFW Contract Excerpts, # 6 Exhibit 75 DFPS Policies, # 7 Exhibit 76 April and July 2012 QMR Excerpts, # 8 Exhibit 77 Contract Excerpts Regarding Modification of UMCM, # 9 Exhibit 78 TMF Draft First Study Report 3−4−10 and Plaintiffs' Mar. 22, 2010 Correspondence, # 10 Exhibit 79 Declaration of Gary Jessee, # 11 Exhibit 80 Contract Excerpts Regarding Liquidated Damages, # 12 Exhibit 81 Sample Checkups and Completeness Assessments, # 13 Exhibit 82 Altarum Deliverable 1 Excerpts and Plaintiffs' Apr. 7, 2014 Correspondence, # 14 Exhibit 83 Checkups CAP, # 15 Exhibit 84 Medical Expenditure Panel Survey Webpages, # 16 Text of Proposed Order)(Flammer, Sean) (Entered: 03/04/2016)

03/04/2016 1481 MOTION for Leave to File Excess Pages by All Defendants. (Attachments: # 1 Text of Proposed Order)(Flammer, Sean) Modified on 3/28/2016 (cm, ). (Entered: 03/04/2016)

03/04/2016 1482 SEALED MOTION for Leave to File Exhibit Under Seal by All Defendants. (Attachments: # 1 Errata 14 Community Health Choice − Love Declaration, # 2 Text of Proposed Order)(Flammer, Sean) Modified on 3/28/2016 (cm, ). (Entered: 03/04/2016)

03/25/2016

1483

Opposed MOTION for Extension of Time to File Response/Reply as to 1446 Opposed MOTION to Vacate 1437 MOTION to Enforce Judgment CAO Managed Care and CAO Check Ups and Related Consent Decree Paragraphs, 1437 MOTION to Enforce Judgment , 1481 MOTION for Leave to File Excess Pages , Opposed MOTION Additional time by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Granting Plaintiffs' Motion for Additional Time to File Their Reply, # 2 Text of Proposed Order Denying Defendants' Motion to Exceed Page Limit)(Garrigan, Timothy) Modified on 3/28/2016 (cm, ). (Entered: 03/25/2016)

03/28/2016 1484 REPLY to Response to Motion re 1481 MOTION for Leave to File Excess Pages filed by All Defendants. (Flammer, Sean) Modified on 3/28/2016 (cm, ). (Entered: 03/28/2016)

03/28/2016

1485

RESPONSE to Motion re 1483 Opposed MOTION for Extension of Time to File Response/Reply as to 1446 Opposed MOTION to Vacate 1437 MOTION to Enforce Judgment CAO Managed Care and CAO Check Ups and Related Consent Decree Paragraphs, 1437 MOTION to EOpposed MOTION Additional time filed by All Defendants. (Attachments: # 1 Exhibit 1, # 2 Text of Proposed Order)(Flammer, Sean) (Entered: 03/28/2016)

04/01/2016

1486

NOTICE of Supplement to 1483 by All Plaintiffs re 1446 Opposed MOTION to Vacate 1437 MOTION to Enforce Judgment CAO Managed Care and CAO Check Ups and Related Consent Decree Paragraphs, 1437 MOTION to Enforce Judgment , 1483 Opposed MOTION for Extension of Time to File Response/Reply as to 1446 Opposed MOTION to Vacate 1437 MOTION to Enforce Judgment CAO Managed Care and CAO Check Ups and Related Consent Decree Paragraphs, 1437 MOTION to EOpposed MOTION Additional time , 1481 Unopposed MOTION for Leave to File Excess Pages Plaintiffs' Supplement to Dkt 1483 (Garrigan, Timothy) Modified on 4/5/2016 (cm, ). (Entered: 04/01/2016)

04/04/2016 1487 ***FILED IN ERROR. TO BE REFILED. PLEASE IGNORE.*** NOTICE by All Defendants re 1486 Notice (Other),, Response in Opposition to Plaintiffs' Supplement to Dkt. 1483 (Flammer, Sean) Modified on 4/5/2016 (cm, ). (Entered: 04/04/2016)

04/05/2016

NOTICE of Deficiency regarding the NOTICE by All Defendants, 1487 submitted by All Defendants, Bridgett Cook, David L Lakey, Susan Penfield, Chris Traylor. To be refiled using the "Response to Non−Motion" event code. Correction should be made by one business day. (cm, ) (Entered: 04/05/2016)

04/05/2016 1488 RESPONSE to 1486 Notice (Other),, in Opposition to Plaintiffs' Supplement to Dkt. 1483 filed by All Defendants. (Flammer, Sean) (Entered: 04/05/2016)

04/11/2016 1489 REPLY to Response to Motion re 1446 Opposed MOTION to Vacate 1437 MOTION to Enforce Judgment CAO Managed Care and CAO Check Ups and Related Consent Decree Paragraphs, 1437 MOTION to Enforce Judgment , 1483 Opposed MOTION

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for Extension of Time to File Response/Reply as to 1446 Opposed MOTION to Vacate 1437 MOTION to Enforce Judgment CAO Managed Care and CAO Check Ups and Related Consent Decree Paragraphs, 1437 MOTION to EOpposed MOTION Additional time , 1481 Unopposed MOTION for Leave to File Excess Pages Responsive to Dkt 1488 filed by All Plaintiffs. (Garrigan, Timothy) (Entered: 04/11/2016)

04/11/2016 1490 RESPONSE to 1489 Reply to Response to Motion,, filed by All Defendants. (Flammer, Sean) (Entered: 04/11/2016)

04/14/2016

1491

RESPONSE in Opposition re 1446 Opposed MOTION to Vacate 1437 MOTION to Enforce Judgment CAO Managed Care and CAO Check Ups and Related Consent Decree Paragraphs, 1437 MOTION to Enforce Judgment filed by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Proposed order)(Craig, Timothy) (Entered: 04/14/2016)

04/25/2016 1492 NOTICE by All Defendants of Vacation Schedule (Flammer, Sean) (Entered: 04/25/2016)

04/29/2016

1493

NOTICE by All Defendants of Filing Quarterly Monitoring Report − April 2016 (Attachments: # 1 Exhibit April 2016 QMR, # 2 Exhibit List, # 3 Exhibit 1 Texas FFY 2014 revised FFY 2015 Form CMS−416 Annual EPSDT Report, # 4 Exhibit 2 MAXIMUS THSteps Report, # 5 Exhibit 3 HHSC Eligibility Office THSteps Admin Eval, # 6 Exhibit 4 DSHS THSteps Provider Relations Activities Report, # 7 Exhibit 5 THSteps Written Outreach and Supplement Rept, # 8 Exhibit 6 Outreach Effectiveness Reports for Medical and Dental Checkups, # 9 Exhibit 7 Activities Report for Medicaid Managed Care Organizations, # 10 Exhibit 8 THSteps Active and Enrolled Dental Provider Participation Report, # 11 Exhibit 9 MTM Toll−Free Number Compliance Report, # 12 Exhibit 10 SFY 2015 Annual Case Management for Children and Pregnant Women, # 13 Exhibit 11 SFY 2016 Q1 Report on Case Management for Children and Pregnant Women)(Flammer, Sean) (Entered: 04/29/2016)

05/13/2016 1494 Opposed MOTION for Leave to File Excess Pages by All Defendants. (Attachments: # 1 Text of Proposed Order)(Flammer, Sean) (Entered: 05/13/2016)

05/13/2016 1495 REPLY to Response to Motion re 1446 Opposed MOTION to Vacate 1437 MOTION to Enforce Judgment CAO Managed Care and CAO Check Ups and Related Consent Decree Paragraphs, 1437 MOTION to Enforce Judgment filed by All Defendants. (Flammer, Sean) (Entered: 05/13/2016)

06/08/2016 1496 SUR−REPLY to Reply to Response to Motion re 1446 Opposed MOTION to Vacate 1437 MOTION to Enforce Judgment CAO Managed Care and CAO Check Ups and Related Consent Decree Paragraphs filed by All Plaintiffs. (Attachments: # 1 Exhibit Exhibit 1)(Craig, Timothy) (Entered: 06/08/2016)

06/15/2016 1497 NOTICE by All Plaintiffs Vacation Letter (Garrigan, Timothy) (Entered: 06/15/2016)

06/20/2016 1498 ORDER GRANTING DEFENDANTS UNOPPOSED MOTION FOR LEAVE TO FILE ADDITIONAL EXHIBITS re: 1411 Motion for Leave to File. Signed by Judge Richard A. Schell on 6/20/16. (cm, ) (Entered: 06/21/2016)

06/20/2016 1499 ORDER GRANTING DEFENDANTS UNOPPOSED MOTION TO EXCEED PAGE LIMIT re: 1414 Motion for Leave to File Excess Pages. Signed by Judge Richard A. Schell on 6/20/16. (cm, ) (Entered: 06/21/2016)

06/20/2016 1500 ORDER granting 1415 Motion for Extension of Time to File Response/Reply. The deadline for Plaintiffs Outreach Sur−reply is extended until November 18,2015. The court notes that the sur−reply was indeed filed on November 18, 2015. Signed by Judge Richard A. Schell on 6/20/16. (cm, ) (Entered: 06/21/2016)

06/20/2016 1501 ORDER GRANTING PLAINTIFFSUNOPPOSED MOTION FOR LEAVE TO FILE SUR−REPLY WITH EXTRA PAGES re: 1421 Motion for Leave to File Excess Pages. Signed by Judge Richard A. Schell on 6/20/16. (cm, ) (Entered: 06/21/2016)

06/20/2016 1502 ORDER granting 1423 Motion for Extension of Time to File Response/Reply re 1417 Opposed MOTION for Court Resolution Concerning the Health Outcomes Measures Second Study Responses due by 12/14/2015 Replies due by 1/8/2016.. Signed by Judge Richard A. Schell on 6/20/16. (cm, ) (Entered: 06/21/2016)

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06/20/2016

1503

ORDER granting 1424 Motion for Extension of Time to File Response/Reply re 1225 MOTION to Vacate The Dental Assessment Portion of the Health Outcomes Measures and Dental Assessment Corrective Action Order, and Related Consent Decree Provisions Sur−Reply due by 12/22/2015.. Signed by Judge Richard A. Schell on 6/20/16. (cm, ) Modified on 6/21/2016 (cm, ). (Entered: 06/21/2016)

06/20/2016 1504 ORDER granting 1426 Motion for Leave to File Excess Pages. Plaintiffs may file their 16 page Response to Defendants Health Outcomes Measures Motion (Dkt#1417). Signed by Judge Richard A. Schell on 6/20/16. (cm, ) (Entered: 06/21/2016)

06/20/2016

1505

ORDER granting 1427 Motion for Extension of Time to File Response/Reply re 1225 MOTION to Vacate The Dental Assessment Portion of the Health Outcomes Measures and Dental Assessment Corrective Action Order, and Related Consent Decree Provisions Sur−Reply due by 1/15/2016. The court notes that the sur−reply was indeed filed on January 15, 2016. Signed by Judge Richard A. Schell on 6/20/16. (cm, ) (Entered: 06/21/2016)

06/20/2016 1506 ***DOCKETED IN ERROR. PLEASE IGNORE.*** ORDER granting 1417 Motion. Signed by Judge Richard A. Schell on 6/20/16. (cm, ) Modified on 6/21/2016 (cm, ). (Entered: 06/21/2016)

06/20/2016

***FILED IN ERROR. Document # 1506, Order. PLEASE IGNORE.***

(cm, ) (Entered: 06/21/2016)

06/20/2016

1507

ORDER GRANTING PLAINTIFFS UNOPPOSED MOTION TO RE−SCHEDULE COURT FILINGS CONCERNING THE CORRECTIVE ACTION ORDER: CHECKUPS (Dkt#637−4), THE CORRECTIVE ACTION ORDER: MANAGED CARE (Dkt#637−6) AND RELATED DECREE PROVISIONS re: 1428 Motion. Signed by Judge Richard A. Schell on 6/20/16. (cm, ) (Entered: 06/21/2016)

06/20/2016

1508

ORDER granting 1429 Motion for Leave to File Excess Pages. Defendantsmay file Defendants Reply in Support of their Opposed Motion For Court Resolution Concerning the Health outcomes Measures Second Study, in excess of the 5−page limit for responses set forth in the local rules. Signed by Judge Richard A. Schell on 6/20/16. (cm, ) (Entered: 06/21/2016)

06/20/2016 1509 ORDER granting 1433 Motion for Leave to File Excess Pages. Plaintiffs may file their 7 page Sur−Reply to Defendant's reply in support of Defendants Health Outcomes Measures Motion (Dkt#1417). Signed by Judge Richard A. Schell on 6/20/16. (cm, ) (Entered: 06/21/2016)

06/20/2016

1510

ORDER granting 1434 Motion for Leave to File Excess Pages. Plaintiffs may file their 22 page Amended Sur−Replyopposing Defendants Rule 60(b)(5) Motion to Vacate the Dental Assessment Portion of the HealthOutcomes Measures and Dental Assessment Corrective Action Order, and Related Consent Decree Provisions (DKT 1225). Signed by Judge Richard A. Schell on 6/20/16. (cm, ) (Entered: 06/21/2016)

06/20/2016

1511

ORDER granting 1439 Motion for Leave to File. Defendants may file their Response to Plaintiffs Sur−Reply to Defendants Rule 60(b)(5) Motion to Vacate the Dental Assessment Portion of the Health Outcomes Measures and Dental Assessment Corrective Action Order, and Related Consent Decree Provisions. Signed by Judge Richard A. Schell on 6/20/16. (cm, ) (Entered: 06/21/2016)

06/20/2016

1512

ORDER granting 1443 Motion for Extension of Time to File. Plaintiffs demand for 2015 fees, costs and expenses will be due not less than 30 days after final resolution of Defendants attorney fee appeal pending in the 5th Circuit Court of Appeals. Plaintiffs motion for 2015 attorneys fees, costs and expenses will be due not less than 60 days after final resolution of Defendants attorney fee appeal to the 5th Circuit. Signed by Judge Richard A. Schell on 6/20/16. (cm, ) (Entered: 06/21/2016)

06/20/2016 1513 ORDER GRANTING DEFENDANTS UNOPPOSED MOTION FOR LEAVE TO FILE EXHIBIT UNDER SEAL re: 1482 Sealed Motion. Signed by Judge Richard A. Schell on 6/20/16. (cm, ) (Entered: 06/21/2016)

06/21/2016 1514 MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS MOTION TO EXCEED PAGE LIMIT (DKT. 1481); DENYING PLAINTIFFS MOTION FOR ADDITIONAL TIME TO FILE THEIR REPLY IN SUPPORT OF PLAINTIFFS

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MOTION FOR FURTHER ACTION REGARDING CHECKUP PROVISIONS (DKT. 1437) AND RESPONSE TO DEFENDANTS MOTION TO VACATE REGARDINGCHECKUP PROVISIONS (DKT. 1446) (DKT. 1483) re 1483 Opposed MOTION for Extension of Time to File Response/Reply as to 1446 Opposed MOTION to Vacate 1437 MOTION to Enforce Judgment CAO Managed Care and CAO Check Ups and Related Consent Decree Paragraphs, 1437 MOTION to EOpposed MOTION Additional time filed by All Plaintiffs, 1481 Unopposed MOTION for Leave to File Excess Pages filed by All Defendants. Signed by Judge Richard A. Schell on 6/21/16. (cm, ) (Entered: 06/21/2016)

06/21/2016 1516 ORDER granting 1494 Motion for Leave to File Excess Pages. Signed by Judge Richard A. Schell on 6k/21/16. (cm, ) (Entered: 06/22/2016)

06/22/2016 1515 ORDER GRANTING PLAINTIFFS MOTION FOR LEAVE TO FILE REPLY TO DEFENDANTS RESPONSE TO PLAINTIFFS SUR−REPLY re: 1441 Motion for Leave to File. Signed by Judge Richard A. Schell on 6/21/16. (cm, ) (Entered: 06/22/2016)

06/23/2016

1517

Opposed MOTION to Vacate Consent Decree Paragraphs 91, 94, and 239−245 by All Defendants. (Attachments: # 1 Exhibit List, # 2 Exhibit 1 − 3−11−16 correspondence, # 3 Exhibit 2 − 3−24−16 correspondence, # 4 Exhibit 3 − Consent Decree Requirements and Evidence Table, # 5 Exhibit 4 − Declaration of Monica Gamez, # 6 Exhibit 5 − Declaration of Armandina Ortiz, # 7 Exhibit 6 − QMR Excerpts)(Flammer, Sean) (Entered: 06/23/2016)

06/23/2016

1518

Additional Attachments to Main Document: 1517 Opposed MOTION to Vacate Consent Decree Paragraphs 91, 94, and 239−245.. (Attachments: # 1 Exhibit 7 − Declaration of Melinda Metteauer, # 2 Exhibit 8 − Aetna Declaration, # 3 Exhibit 9 − Amerigroup Declaration, # 4 Exhibit 10 − Blue Cross Blue Shield Declaration, # 5 Exhibit 11 − CHRISTUS Declaration)(Flammer, Sean) (Entered: 06/23/2016)

06/23/2016

1519

Additional Attachments to Main Document: 1517 Opposed MOTION to Vacate Consent Decree Paragraphs 91, 94, and 239−245.. (Attachments: # 1 Exhibit 12 − Cigna Healthspring Declaration (Jiles), # 2 Exhibit 12 − Cigna Healthspring Declaration (Kirk−Ross), # 3 Exhibit 12 − Cigna Healthspring Declaration (Thomas), # 4 Exhibit 13 − Community First Health Plan Declaration (Hecox), # 5 Exhibit 13 − Community First Health Plan Declaration (Ramos), # 6 Exhibit 14 − Community Health Choice Declaration, # 7 Exhibit 15 − Cook Children's Health Plan Declaration, # 8 Exhibit 16 − DentaQuest Declaration, # 9 Exhibit 17 − Driscoll Halth Plan Declaration, # 10 Exhibit 18 − El Paso First Declaration, # 11 Exhibit 19 − First Care Declaration, # 12 Exhibit 20 − MCNA Declaration, # 13 Exhibit 21 − Molina Declaration, # 14 Exhibit 22 − Parkland Community Health Plan Declaration, # 15 Exhibit 23 − RightCare Declaration)(Flammer, Sean) (Entered: 06/23/2016)

06/23/2016

1520

Additional Attachments to Main Document: 1517 Opposed MOTION to Vacate Consent Decree Paragraphs 91, 94, and 239−245.. (Attachments: # 1 Exhibit 24 − Sendero Declaration, # 2 Exhibit 25 − Seton Declaration, # 3 Exhibit 26 − Superior Health Plan Declaration, # 4 Exhibit 27 − Texas Children's Health Plan Declaration, # 5 Exhibit 28 − United Healthcare Community Health Plan Declaration, # 6 Exhibit 29 − American Medical Response Declaration, # 7 Exhibit 30 − LeFleur Transportation Declaration, # 8 Exhibit 31 − LogistiCare Declaration, # 9 Exhibit 32 − Medical Transportation Management Declaration, # 10 Exhibit 33 − Project Amistad Declaration, # 11 Exhibit 34 − Medical Transportation Program Declaration, # 12 Text of Proposed Order)(Flammer, Sean) (Entered: 06/23/2016)

06/23/2016 1521 Opposed MOTION for Leave to File Excess Pages by All Defendants. (Attachments: # 1 Text of Proposed Order)(Flammer, Sean) (Entered: 06/23/2016)

07/01/2016 1522 Agreed MOTION scheduling re Defendants' June 2016 motion to vacate re 1517 Opposed MOTION to Vacate Consent Decree Paragraphs 91, 94, and 239−245 by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 07/01/2016)

07/29/2016 1523 NOTICE by All Defendants of Filing Quarterly Monitoring Report − July 2016 (Attachments: # 1 July 2016 QMR, # 2 Exhibit List, # 3 Exhibit 1 − MAXIMUS THSteps Reports, # 4 Exhibit 2 − DSHS THSteps Provider Relations Activities Reports, # 5 Exhibit 3 − THSteps Written Outreach Report, # 6 Exhibit 4 − Outreach

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Effectiveness Reports for Medical and Dental Checkups, # 7 Exhibit 5 − Revised Reporting Schedule for Decree Paragraphs 60 and 61, # 8 Exhibit 6 Activities Report for Medicaid Managed Care Organizations, # 9 Exhibit 7 THSteps Active and Enrolled Dental Provider Participation Report 1996−current, # 10 Exhibit 8 − Annual Texas Health Steps Dental Report 1997−2015, # 11 Exhibit 9 − Articles from Children of Migrant Farmworker Event, # 12 Exhibit 10 − Texas Health Steps Checkups for STAR Health SFY 2015, # 13 Exhibit 11 − MTM Toll−free Number Compliance Report, # 14 Exhibit 12 − SFY 2016 Q2 Report on Case Management for Children and Pregnant Women)(Flammer, Sean) (Entered: 07/29/2016)

08/09/2016 1524 NOTICE by All Defendants re 1522 Agreed MOTION scheduling re Defendants' June 2016 motion to vacate re 1517 Opposed MOTION to Vacate Consent Decree Paragraphs 91, 94, and 239−245 (Flammer, Sean) (Entered: 08/09/2016)

09/23/2016 1525 NOTICE by All Defendants Regarding HHSC's Pay For Quality Program (Flammer, Sean) (Entered: 09/23/2016)

10/31/2016

1526

NOTICE by All Defendants of Filing Quarterly Monitoring Report (Attachments: # 1 Exhibit October 2016 Quarterly Monitoring Report, # 2 Exhibit List, # 3 Exhibit 1. MAXIMUS THSteps Reports, # 4 Exhibit 2. DSHS THSteps Provider Relations Activities Reports, # 5 Exhibit 3. Outreach Effectiveness Reports for Medical and Dental Checkups, # 6 Exhibit 4. Activities Report for Medicaid Managed Care Organizations, # 7 Exhibit 5. THSteps Active and Enrolled Dental Provider Participation Report 1996−current, # 8 Exhibit 6. Managed Care Children of Migrant Farmworkers Annual Summary, # 9 Exhibit 7. MTM Toll−free Number Compliance Report, # 10 Exhibit 8. SFY 2016 Q3 Report on Case Management for Children and Pregnant Women)(Flammer, Sean) (Entered: 10/31/2016)

11/03/2016 1527 OPINION of USCA as to 1288 Notice of Appeal. (kls, ) (Entered: 11/07/2016)

11/14/2016 1528 MANDATE of USCA as to 1288 Notice of Appeal filed by All Plaintiffs. It is ordered and adjudged that the judgment of the District Court is affirmed in part and vacated in part, and the cause is remanded to the District Court for further proceedings in accordance with the opinion of this Court. (pad, ) (Entered: 11/14/2016)

11/22/2016 1529 OPINION of USCA as to 1288 Notice of Appeal filed by All Plaintiffs (pad, ) (Entered: 11/22/2016)

12/05/2016 1530 NOTICE by All Defendants re 1417 Opposed MOTION for Court Resolution Concerning the Health Outcomes Measures Second Study (Defendants' Advisory to the Court) (Barbour, Laura) (Entered: 12/05/2016)

12/14/2016 1531 Opposed MOTION to Clarify and Reinstate Order Vacating CAO 637−9 re 1280 Order on Sealed Motion to Vacate the Corrective Action Order: Adequate Supply of Health Care Providers and Related Consent Decree Provisions by All Defendants. (Attachments: # 1 Text of Proposed Order)(Flammer, Sean) (Entered: 12/14/2016)

12/16/2016 1532 Agreed MOTION for Extension of Time to File Response to Motion to Clarify and Reinstate by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Proposed Order)(Craig, Timothy) (Entered: 12/16/2016)

12/22/2016 1533 MOTION for Hearing Related to the Provider Supply Remand by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Proposed Order)(Craig, Timothy) (Entered: 12/22/2016)

01/05/2017 1534 RESPONSE in Opposition re 1533 MOTION for Hearing Related to the Provider Supply Remand filed by All Defendants. (Attachments: # 1 Text of Proposed Order)(Flammer, Sean) (Entered: 01/05/2017)

01/09/2017 1535 ORDER granting 1532 Motion for Extension of Time to File. The deadline for Plaintiffs Response in Opposition to Opposed Motion to Clarify and Reinstate Order Vacating CAO 637−9 (Dkt#1531) is February 2, 2017. Signed by Judge Richard A. Schell on 1/9/17. (cm, ) (Entered: 01/09/2017)

01/10/2017 1536 Joint MOTION Modify Case Management Section of Corrective Action Order re 637 Joint MOTION for Entry of an Agreed Corrective Action Order by All Defendants. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Flammer, Sean) (Entered: 01/10/2017)

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01/31/2017

1537

NOTICE by All Defendants of Filing Quarterly Monitoring Report (Attachments: # 1 Exhibit January 2017 QMR, # 2 Exhibit List, # 3 Exhibit 1 MAXIMUS THSteps Reports, # 4 Exhibit 2 DSHS THSteps Provider Relations Activities Report, # 5 Exhibit 3 Activities Report for Medicaid Managed Care Organizations, # 6 Exhibit 4 THSteps Active and Enrolled Dental Provider Participation Report 1996−current, # 7 Exhibit 5 Managed Care Timely Checkup Report Summary SFY 2014, # 8 Exhibit 6 Managed Care Health Plan Timely Checkup Reports SFY 2014, # 9 Exhibit 7 MTM Toll−free Number Compliance Report, # 10 Exhibit 8 SFY 2016 Q4 Report on Case Management for Children and Pregnant Women, # 11 Exhibit 9 SFY 2015 Annual Report on Targeted Case Management)(Flammer, Sean) (Entered: 01/31/2017)

02/02/2017

1538

RESPONSE in Opposition re 1531 Opposed MOTION to Clarify and Reinstate Order Vacating CAO 637−9 re 1280 Order on Sealed Motion to Vacate the Corrective Action Order: Adequate Supply of Health Care Providers and Related Consent Decree Provisions filed by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Proposed Order)(Craig, Timothy) (Entered: 02/02/2017)

02/08/2017

1539

Unopposed MOTION for Extension of Time to File Response/Reply as to 1531 Opposed MOTION to Clarify and Reinstate Order Vacating CAO 637−9 re 1280 Order on Sealed Motion to Vacate the Corrective Action Order: Adequate Supply of Health Care Providers and Related Consent Decree Provisions by All Defendants. (Attachments: # 1 Text of Proposed Order)(Barbour, Laura) (Entered: 02/08/2017)

02/08/2017 1540 Agreed MOTION for Extension of Time to File for 2016 atty fees by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 02/08/2017)

02/09/2017

1541

ORDER granting 1539 Motion for Extension of Time to File Response/Reply re 1531 Opposed MOTION to Clarify and Reinstate Order Vacating CAO 637−9 re 1280 Order on Sealed Motion to Vacate the Corrective Action Order: Adequate Supply of Health Care Providers and Related Consent Decree Provisions. Replies due by 2/23/2017. Signed by Judge Richard A. Schell on 2/9/17. (cm, ) (Entered: 02/09/2017)

02/09/2017

1542

ORDER GRANTING PLAINTIFFS UNOPPOSED MOTION TO EXTEND TIME FOR DEMAND AND COURT FILINGS CONCERNING PLAINTIFFS CLAIMS FOR INTERIM ATTORNEY FEES, COSTS AND EXPENSES (2016) granting 1540 Motion for Extension of Time to File. Plaintiffs demand for 2016 fees, costs and expenses will be due not less than 30 days after final resolution of Defendants attorney fee appeal pending in the 5th Circuit Court of Appeals.6 Plaintiffs motion for 2016 attorneys fees, costs and expenses will be due not less than 60 days after final resolution of Defendants attorney fee appeal to the 5th Circuit. Signed by Judge Richard A. Schell on 2/9/17. (cm, ) (Entered: 02/09/2017)

02/16/2017 1543 Opposed MOTION for Protective Order to Limit the Scope of Plaintiffs' Requested Depositions Relating to Defendants Rule 60(b)(5) Motion to Vacate Consent Decree Paragraphs 91, 94, and 239−245 by All Defendants. (Attachments: # 1 Exhibit 1, # 2 Text of Proposed Order)(Flammer, Sean) (Entered: 02/16/2017)

02/23/2017 1544 REPLY to Response to Motion re 1531 Opposed MOTION to Clarify and Reinstate Order Vacating CAO 637−9 re 1280 Order on Sealed Motion to Vacate the Corrective Action Order: Adequate Supply of Health Care Providers and Related Consent Decree Provisions filed by All Defendants. (Flammer, Sean) (Entered: 02/23/2017)

03/02/2017

1545

SUR−REPLY to Reply to Response to Motion re 1531 Opposed MOTION to Clarify and Reinstate Order Vacating CAO 637−9 re 1280 Order on Sealed Motion to Vacate the Corrective Action Order: Adequate Supply of Health Care Providers and Related Consent Decree Provisions filed by All Plaintiffs. (Craig, Timothy) (Entered: 03/02/2017)

03/02/2017

1546

RESPONSE in Opposition re 1543 Opposed MOTION for Protective Order to Limit the Scope of Plaintiffs' Requested Depositions Relating to Defendants Rule 60(b)(5) Motion to Vacate Consent Decree Paragraphs 91, 94, and 239−245 filed by All Plaintiffs. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Text of Proposed Order Proposed Order)(Craig, Timothy) (Entered: 03/02/2017)

03/09/2017 1547 REPLY to Response to Motion re 1543 Opposed MOTION for Protective Order to Limit the Scope of Plaintiffs' Requested Depositions Relating to Defendants Rule 60(b)(5) Motion to Vacate Consent Decree Paragraphs 91, 94, and 239−245 filed by

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 136 of 145

All Defendants. (Flammer, Sean) (Entered: 03/09/2017)

03/28/2017

1548

MOTION for Hearing re 1298 MOTION to Vacate The First Modified Corrective Action Order: Outreach and Informing, Section III of the Corrective Action Order: Managed Care, and Related Outreach and Informing Consent Decree Paragraphs by All Defendants. (Attachments: # 1 Text of Proposed Order)(Flammer, Sean) (Entered: 03/28/2017)

03/30/2017

1549

ORDER granting 1521 Motion for Leave to File Excess Pages. Defendants Motion is granted, and Defendants may file their Rule 60(b)(5) Motion to Vacate Consent Decree Paragraphs 91, 94, and 239−245, in excess of the page limit set for motions and responses set forth in the local rules. Signed by Judge Richard A. Schell on 3/30/17. (cm, ) (Entered: 03/30/2017)

03/30/2017 1550 ORDER DENYING AS MOOT AGREED SCHEDULING MOTIONCONCERNING DEFENDANTS RULE 60(b)(5) MOTION TO VACATEDECREE PARAGRAPHS 91, 94 AND 239−245 (Dkt#1517) re: 1522 Motion. Signed by Judge Richard A. Schell on 3/30/17. (cm, ) (Entered: 03/30/2017)

03/30/2017 1551 ORDER granting 1536 Joint Motion to Modify Case Management Section of Corrective Action Order. Signed by Judge Richard A. Schell on 3/30/17. (cm, ) (Entered: 03/30/2017)

03/31/2017 1552 Unopposed MOTION to Withdraw as Attorney by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Swanson, Jane) (Entered: 03/31/2017)

04/04/2017 1553 ORDER granting 1552 Motion to Withdraw as Attorney. Attorney Jane Kathryn Swanson terminated. Ms. Swanson is permitted to withdraw as a counsel for Plaintiffs, effective May 31, 2017. Signed by Judge Richard A. Schell on 4/4/17. (cm, ) (Entered: 04/04/2017)

04/24/2017 1554 Unopposed MOTION to Withdraw as Attorney by All Defendants. (Attachments: # 1 Text of Proposed Order)(Barbour, Laura) (Entered: 04/24/2017)

04/24/2017 1555 NOTICE by All Defendants of vacation letter for Sean Flammer (Flammer, Sean) (Entered: 04/24/2017)

04/26/2017 1556 MOTION for Hearing re 1417 Opposed MOTION for Court Resolution Concerning the Health Outcomes Measures Second Study by All Defendants. (Attachments: # 1 Exhibit A Frew Second Assessment of Health Outcomes Measures − March 2017)(Flammer, Sean) (Entered: 04/26/2017)

04/26/2017 1557 ORDER granting 1554 Motion to Withdraw as Attorney. Attorney Laura Alicia Barbour terminated. Laura A. Barbour is hereby granted leave to withdraw as counsel of record for the Defendants in this matter. Signed by Judge Richard A. Schell on 4/26/17. (cm, ) (Entered: 04/27/2017)

05/01/2017

1558

NOTICE by All Defendants of Filing Quarterly Monitoring Report (Attachments: # 1 Exhibit April 2017 Quarterly Monitoring Report, # 2 Exhibit List, # 3 Exhibit 1 MAXIMUS THSteps Reports, # 4 Exhibit 2 DSHS THSteps Provider Relations Activities Report, # 5 Exhibit 3 Activities Report for Medicaid Managed Care Organizations, # 6 Exhibit 4 THSteps Active and Enrolled Dental Provider Participation Report 1996−current, # 7 Exhibit 5 MTM Toll−Free Number Compliance Report, # 8 Exhibit 6 SFY 2016 Annual Report − Case Management for Children and Pregnant Women, # 9 Exhibit 7 SFY 2017 Q1 Report on Case Management for Children and Pregnant Women)(Flammer, Sean) (Entered: 05/01/2017)

05/19/2017 1559 USCA JUDGMENT as to 1253 Notice of Appeal filed by All Defendants. It is ordered and adjudged that the judgment of the District Court is vacated, and the cause is remanded to the District Court for further proceedings (pad, ) (Entered: 05/19/2017)

05/22/2017 1560 NOTICE of Attorney Appearance by Andrea Leyva Batista on behalf of All Defendants (Batista, Andrea) (Entered: 05/22/2017)

05/23/2017 1561 Unopposed MOTION to Stay Deadlines in Health Outcomes Measures CAO (Dkt. 637−7) by All Defendants. (Attachments: # 1 Text of Proposed Order)(Flammer, Sean) (Entered: 05/23/2017)

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05/26/2017 1562 Agreed MOTION to Stay of Fee−Related Deadlines by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Proposed Order)(Garrigan, Timothy) (Entered: 05/26/2017)

05/31/2017

1563

ORDER GRANTING UNOPPOSED MOTION TO STAY DEADLINES IN HEALTH OUTCOMES MEASURES CAO (DKT. 637−5) granting 1561 Motion to Stay. Deadline obligations in Bullet Point 5 of the Health Outcomes Measures Corrective Action Order (Dkt. 637−5) are hereby stayed until June 23, 2017. Signed by Judge Richard A. Schell on 5/31/17. (cm, ) (Entered: 05/31/2017)

05/31/2017 1564 ORDER granting 1562 Motion to Stay. All such deadlines are stayed for 30 days and the parties shall submit any resulting agreed proposals within 30 days of this Order. Signed by Judge Richard A. Schell on 5/31/17. (cm, ) (Entered: 05/31/2017)

06/21/2017 1565 Opposed MOTION to Stay Deadlines in Health Outcomes Measures CAO (Dkt. 637−5) by All Defendants. (Attachments: # 1 Text of Proposed Order)(Flammer, Sean) (Entered: 06/21/2017)

06/30/2017 1566 Second MOTION to Stay of Fee−Related Deadlines by All Defendants. (Attachments: # 1 Text of Proposed Order)(Flammer, Sean) (Entered: 06/30/2017)

07/05/2017 1567 RESPONSE in Opposition re 1565 Opposed MOTION to Stay Deadlines in Health Outcomes Measures CAO (Dkt. 637−5) filed by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Proposed Order)(Craig, Timothy) (Entered: 07/05/2017)

07/11/2017 1568 REPLY to Response to Motion re 1565 Opposed MOTION to Stay Deadlines in Health Outcomes Measures CAO (Dkt. 637−5) filed by All Defendants. (Flammer, Sean) (Entered: 07/11/2017)

07/13/2017 1569 Opposed MOTION for Attorney Fees ON REMAND BY THE FIFTH CIRCUITS RULING OF APRIL 27, 2017 by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Proposed Order)(Craig, Timothy) (Entered: 07/13/2017)

07/14/2017 1570 Agreed MOTION Scheduling Motion Concerning Plaintiffs' Opposed Motion for Interim Attorneys' Fees re 1569 Opposed MOTION for Attorney Fees ON REMAND BY THE FIFTH CIRCUITS RULING OF APRIL 27, 2017 by All Defendants. (Attachments: # 1 Text of Proposed Order)(Flammer, Sean) (Entered: 07/14/2017)

07/20/2017 1571 Second MOTION to Stay Deadlines in Health Outcomes Measures CAO (Dkt. 637−7) (Opposed) by All Defendants. (Attachments: # 1 Text of Proposed Order)(Flammer, Sean) (Entered: 07/20/2017)

07/20/2017 1572 SUR−REPLY to Reply to Response to Motion re 1565 Opposed MOTION to Stay Deadlines in Health Outcomes Measures CAO (Dkt. 637−5) filed by All Plaintiffs. (Garrigan, Timothy) (Entered: 07/20/2017)

07/27/2017

1573

NOTICE by All Defendants of Filing of Quarterly Monitoring Report (Attachments: # 1 Exhibit July 2017 Quarterly Monitoring Report, # 2 Exhibit List, # 3 Exhibit 1 Texas CMS−416 FFY 2016, # 4 Exhibit 2 MAXIMUS THSteps Reports (includes reports for decree paragraphs 60 and 61), # 5 Exhibit 3 DSHS THSteps Provider Relations Activities Reports, # 6 Exhibit 4 Activities Report for Medicaid Managed Care Organizations, # 7 Exhibit 5 THSteps Active and Enrolled Dental Provider Participation Report 1996−current, # 8 Exhibit 6 THSteps Dental Checkups 1997−2016, # 9 Exhibit 7 THSteps Medical and Dental Checkups for Children in Foster Care SFY 2016, # 10 Exhibit 8 MTM Toll−free Number Compliance Report, # 11 Exhibit 9 SFY 2017 Q2 Report on Case Management for Children and Pregnant Women)(Flammer, Sean) (Entered: 07/27/2017)

08/04/2017 1574 ORDER granting 1566 Motion to Stay. All such deadlines are stayed for an additional 30 days, and the parties shall submit any resulting agreed proposals within 30 days of this order. Signed by Judge Richard A. Schell on 8/4/17. (cm, ) (Entered: 08/04/2017)

08/04/2017

1575

ORDER granting 1570 Agreed Scheduling Motion Concerning Plaintiffs Opposed Motion for Interim Attorneys Fees. Defendants Response is to be filed on or before August 11, 2017. Plaintiffs Reply will be due within 21 days of the date Defendants file their Response. Defendants Sur−Reply will be due within 21 days after Plaintiffs file their Reply. Signed by Judge Richard A. Schell on 8/4/17. (cm, ) (Entered: 08/04/2017)

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 138 of 145

08/11/2017

1576

RESPONSE in Opposition re 1569 Opposed MOTION for Attorney Fees ON REMAND BY THE FIFTH CIRCUITS RULING OF APRIL 27, 2017 filed by All Defendants. (Attachments: # 1 Exhibit List, # 2 Exhibit A. 2012 Billing Entries Already Paid, # 3 Exhibit B. Declarations of Susan Zinn, Jane Swanson and Tim Garrigan, # 4 Exhibit C. Objectionable Fees Requested (Vague, Block Billing, Clerical Task, Excessive Time Spent on Task, etc.), # 5 Exhibit D. Objectionable Fees Requested (Duplicative Time Entries), # 6 Exhibit E. Settlement Agreement and Release: Motion to Enforce and Attorneys Fees, Alberto No., et al. v. Albert Hawkins, et al, # 7 Exhibit F. State Bar of Texas Hourly Rate Fact Sheet, # 8 Exhibit G. McKool Smith Webpages, # 9 Text of Proposed Order)(Flammer, Sean) (Entered: 08/11/2017)

08/11/2017 1577 Opposed MOTION for Leave to File Excess Pages by All Defendants. (Attachments: # 1 Text of Proposed Order)(Flammer, Sean) (Entered: 08/11/2017)

08/25/2017 1578 RESPONSE in Opposition re 1577 Opposed MOTION for Leave to File Excess Pages REGARDING RESPONSE TO 1569 filed by All Plaintiffs, CLASS MEMBERS, Linda Frew. (Attachments: # 1 PROPOSED ORDER)(Garrigan, Timothy) (Entered: 08/25/2017)

08/30/2017 1579 REPLY to Response to Motion re 1577 Opposed MOTION for Leave to File Excess Pages filed by All Defendants. (Flammer, Sean) (Entered: 08/30/2017)

09/01/2017 1580 Unopposed MOTION to Stay of Fee−Related Deadlines by All Defendants. (Attachments: # 1 Text of Proposed Order)(Flammer, Sean) (Entered: 09/01/2017)

09/01/2017 1581 REPLY to Response to Motion re 1569 Opposed MOTION for Attorney Fees ON REMAND BY THE FIFTH CIRCUITS RULING OF APRIL 27, 2017 filed by All Plaintiffs. (Craig, Timothy) (Entered: 09/01/2017)

09/08/2017 1582 ORDER granting 1580 Motion to Stay. All such deadlines are stayed until December 21, 2017. Signed by Judge Richard A. Schell on 9/8/17. (cm, ) (Entered: 09/08/2017)

09/21/2017 1583 SUR−REPLY to Reply to Response to Motion re 1569 Opposed MOTION for Attorney Fees ON REMAND BY THE FIFTH CIRCUITS RULING OF APRIL 27, 2017 filed by All Defendants. (Flammer, Sean) (Entered: 09/21/2017)

09/21/2017 1584 Unopposed MOTION for Leave to File Excess Pages by All Defendants. (Attachments: # 1 Text of Proposed Order)(Flammer, Sean) (Entered: 09/21/2017)

10/02/2017 1585 Opposed MOTION to Stay Deadlines in Health Outcomes Measures CAO (Dkt. 637−5) by All Defendants. (Attachments: # 1 Text of Proposed Order)(Flammer, Sean) (Entered: 10/02/2017)

10/05/2017 1586 RESPONSE in Opposition re 1585 Opposed MOTION to Stay Deadlines in Health Outcomes Measures CAO (Dkt. 637−5) filed by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Proposed Order)(Craig, Timothy) (Entered: 10/05/2017)

10/23/2017 1587 Joint MOTION for Status Conference by All Defendants. (Attachments: # 1 Text of Proposed Order)(Flammer, Sean) (Entered: 10/23/2017)

10/31/2017

1588

NOTICE by All Defendants of Filing of Quarterly Monitoring Report (Attachments: # 1 Exhibit October 2017 Quarterly Monitoring Report, # 2 Exhibit List, # 3 Exhibit 1. MAXIMUS THSteps Reports (includes reports for Decree Paragraphs 60 and 61), # 4 Exhibit 2. DSHS THSteps Provider Relations Activities Reports, # 5 Exhibit 3. Decree Paragraph 65 Other Agencies, # 6 Exhibit 4. THSteps Active and Enrolled Dental Provider Participation Report 1996−current, # 7 Exhibit 5. SFY 2015 MCO THSteps Medical Checkup Annual Reports, # 8 Exhibit 6. SFY 2015 THSteps Medical Checkup MCO Performance Rankings, # 9 Exhibit 7. MTM Toll−Free Number Report Jun − Aug 2017, # 10 Exhibit 8. MTM Toll−Free Number Compliance Report Jun − Aug 2016, # 11 Exhibit 9. SFY 2017 Q3 Report on Case Management for Children and Pregnant Women)(Flammer, Sean) (Entered: 10/31/2017)

11/06/2017 1589 Opposed MOTION to Stay Fee−Related Deadlines by All Defendants. (Attachments: # 1 Text of Proposed Order)(Flammer, Sean) (Entered: 11/06/2017)

11/06/2017 1590 Amended MOTION to Stay Fee−Related Deadlines by All Defendants. (Attachments: # 1 Text of Proposed Order)(Flammer, Sean) (Entered: 11/06/2017)

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11/20/2017 1591 RESPONSE in Opposition re 1589 Opposed MOTION to Stay Fee−Related Deadlines filed by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Garrigan, Timothy) (Entered: 11/20/2017)

11/21/2017 1592 MOTION Leave to file supp authority by All Plaintiffs. (Attachments: # 1 Introduction to supp. authority, # 2 Text of Proposed Order)(Garrigan, Timothy) (Attachment 2 replaced on 11/21/2017) (kls, ). (Entered: 11/21/2017)

12/05/2017 1593 RESPONSE in Opposition re 1592 MOTION Leave to file supp authority filed by All Defendants. (Attachments: # 1 Text of Proposed Order)(Flammer, Sean) (Entered: 12/05/2017)

12/05/2017 1594 Additional Attachments to Main Document: 1593 Response in Opposition to Motion.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Flammer, Sean) Modified on 12/5/2017 (cm, ). (Entered: 12/05/2017)

12/08/2017 1595 REPLY to Response to Motion re 1592 MOTION Leave to file supp authority filed by All Plaintiffs. (Garrigan, Timothy) (Entered: 12/08/2017)

12/14/2017 1596 SUR−REPLY to Reply to Response to Motion re 1592 MOTION Leave to file supp authority filed by All Defendants. (Flammer, Sean) (Entered: 12/14/2017)

12/18/2017

1597

ORDER granting 1584 Motion for Leave to File Excess Pages. Defendants may file their Sur−Reply in Opposition to Plaintiffs Opposed Motion for an Award of Interim Attorneys' Fees on Remand by the Fifth Circuits Ruling of April 27, 2017, in excess of the page limit for non−dispositive motions and responses as set forth in the local rules. Signed by District Judge Richard A. Schell on 12/18/2017. (cm, ) (Entered: 12/18/2017)

12/18/2017 1598 ORDER granting 1577 Motion for Leave to File Excess Pages. Signed by District Judge Richard A. Schell on 12/18/2017. (cm, ) (Entered: 12/18/2017)

12/18/2017 1599 ORDER TRANSFERRING CASE. Case reassigned to District Judge Ron Clark for all further proceedings. Judge Richard A. Schell no longer assigned to case. Signed by District Judge Richard A. Schell on 12/18/2017. (cm, ) (Entered: 12/18/2017)

12/19/2017 1600 NOTICE by All Plaintiffs re 1598 Order on Motion for Leave to File Excess Pages −Notice of Error (Craig, Timothy) (Entered: 12/19/2017)

12/21/2017

NOTICE of Hearing: Status Conference set for 1/25/2018 10:00 AM VIA TELECONFERENCE before District Judge Ron Clark. (fal, ) (Entered: 12/21/2017)

12/21/2017 1601 Opposed MOTION for a Proposed Briefing Schedule for Plaintiffs' Attorneys' Interim 2013−2016 Fees, Costs, and Expenses by All Defendants. (Attachments: # 1 Exhibit 1, # 2 Text of Proposed Order)(Flammer, Sean) (Entered: 12/21/2017)

12/29/2017 1602 ORDER directing parties to meet and confer by January 12, 2018, and file a joint status report and proposed schedule by January 22, 2018. Signed by District Judge Ron Clark on December 29, 2017. (bmf) (Entered: 12/29/2017)

01/03/2018 1603 Opposed MOTION to Stay Deadlines in Bullet Point 5 of the Corrective Action Order: Health Outcomes Measures and Dental Assessment (Dkt. 637−5) by All Defendants. (Attachments: # 1 Text of Proposed Order)(Flammer, Sean) (Entered: 01/03/2018)

01/19/2018

1604

Unopposed MOTION for Leave to File PLAINFIFS RESPONSE TO DEFENDANTS OPPOSED MOTION FOR A PROPOSED BRIEFING SCHEDULE FOR PLAINTIFFS ATTORNEYS INTERIM 2013−2016 FEES, COSTS, AND EXPENSES (DKT 1601) by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Proposed Order)(Craig, Timothy) (Entered: 01/19/2018)

01/19/2018 1605 RESPONSE in Opposition re 1601 Opposed MOTION for a Proposed Briefing Schedule for Plaintiffs' Attorneys' Interim 2013−2016 Fees, Costs, and Expenses filed by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Proposed Order)(Craig, Timothy) (Entered: 01/19/2018)

01/19/2018 1606 Unopposed MOTION for Leave to File PLAINTIFFS RESPONSE TO DEFENDANTS OPPOSED FOURTH MOTION TO STAY DEADLINES IN HEALTH OUTCOMES MEASURES CAO by All Plaintiffs. (Attachments: # 1 Text of Proposed Order

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 140 of 145

Proposed Order)(Craig, Timothy) (Entered: 01/19/2018)

01/19/2018 1607 RESPONSE to Motion re 1603 Opposed MOTION to Stay Deadlines in Bullet Point 5 of the Corrective Action Order: Health Outcomes Measures and Dental Assessment (Dkt. 637−5) filed by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Proposed Order)(Craig, Timothy) (Entered: 01/19/2018)

01/22/2018 1608 STATUS REPORT Joint Status Report and Proposed Schedule by All Defendants. (Flammer, Sean) (Entered: 01/22/2018)

01/22/2018

1609

REPLY to Response to Motion re 1603 Opposed MOTION to Stay Deadlines in Bullet Point 5 of the Corrective Action Order: Health Outcomes Measures and Dental Assessment (Dkt. 637−5) Defendants' Reply in Support of Their Fourth Opposed Motion to Stay Deadlines in Bullet Point 5 of the Corrective Action Order: Health Outcomes Measures and Dental Assessment (Dkt. 637−5) filed by All Defendants. (Flammer, Sean) (Entered: 01/22/2018)

01/24/2018

1610

REPLY to Response to Motion re 1601 Opposed MOTION for a Proposed Briefing Schedule for Plaintiffs' Attorneys' Interim 2013−2016 Fees, Costs, and Expenses Defendant's Reply in Support of their Opposed Motion for a Proposed Briefing Schedule for Plaintiffs' Attorneys' Interim 2013−2016 Fees, Costs, and Expenses filed by All Defendants. (Flammer, Sean) (Entered: 01/24/2018)

01/25/2018

1611

Minute Entry for proceedings held before District Judge Ron Clark: Motion Hearing held on 1/25/2018 re 1590 Amended MOTION to Stay Fee−Related Deadlines filed by All Defendants, 1589 Opposed MOTION to Stay Fee−Related Deadlines filed by All Defendants, 1587 Joint MOTION for Status Conference filed by All Defendants, 1571 Second MOTION to Stay Deadlines in Health Outcomes Measures CAO (Dkt. 637−7) (Opposed) filed by All Defendants, 1565 Opposed MOTION to Stay Deadlines in Health Outcomes Measures CAO (Dkt. 637−5) filed by All Defendants, 1585 Opposed MOTION to Stay Deadlines in Health Outcomes Measures CAO (Dkt. 637−5) filed by All Defendants, Status Conference held on 1/25/2018. (Court Reporter FTR − Laurents.) (fal, ) (Entered: 01/25/2018)

01/25/2018

ORAL ORDER finding as moot 1565 Motion to Stay; finding as moot 1571 Motion to Stay; finding as moot 1585 Motion to Stay; finding as moot 1587 Motion; finding as moot 1589 Motion to Stay; finding as moot 1590 Motion to Stay. Entered by District Judge Ron Clark on 1/25/18. (fal, ) (Entered: 01/25/2018)

01/30/2018

1612

NOTICE by All Defendants of Filing of Quarterly Monitoring Report (Attachments: # 1 Exhibit January 2018 Quarterly Monitoring Report, # 2 Exhibit List, # 3 Exhibit 1. MAXIMUS THSteps Reports, # 4 Exhibit 2. DSHS THSteps Provider Relations Activities Reports, # 5 Exhibit 3. Activities Report for Medicaid Managed Care Organizations, # 6 Exhibit 4. THSteps Active and Enrolled Dental Provider Participation Report 1996−current, # 7 Exhibit 5. Migrant Summary Report, # 8 Exhibit 6. MTM Toll−Free Number Compliance Report, # 9 Exhibit 7. SFY Q4 Report on Case Management for Children and Pregnant Women, # 10 Exhibit 8. SFY 2016 Annual Report on Targeted Case Management)(Flammer, Sean) (Entered: 01/30/2018)

02/15/2018 1613 Unopposed MOTION to submit 2017 fee billing info to Ds 2.15.19 by All Plaintiffs. (Attachments: # 1 Text of Proposed Order GRANTING UNTIL 2.15.19 TO PROVIDE 2017 FEE BILLING TO Ds)(Garrigan, Timothy) (Entered: 02/15/2018)

03/01/2018 1614 ORDER REASSIGNING CASE. The Court REASSIGNS this case to the Honorable Richard Schell for all purposes effective March 1, 2018. District Judge Ron Clark no longer assigned to case. Signed by District Judge Rodney Gilstrap on 3/1/2018. (baf, ) (Entered: 03/01/2018)

03/14/2018 1615 ORDER − GRANTING 1604 Motion for Leave to File. Signed by District Judge Richard A. Schell on 3/14/2018. (baf, ) (Entered: 03/14/2018)

03/14/2018 1616 ORDER − GRANTING 1606 Motion for Leave to File. Signed by District Judge Richard A. Schell on 3/14/2018. (baf, ) (Entered: 03/14/2018)

03/14/2018 1617 ORDER − GRANTING 1613 Motion to Reset the Due Date for Plaintiffs to Present Defendants with a Written Statement of 2017 Fees. Plaintiffs deadline to submit to Defendants a written statement or their 2017 fees, costs and expenses is February 15,

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 141 of 145

2019. Signed by District Judge Richard A. Schell on 3/14/2018. (baf, ) (Entered: 03/14/2018)

04/09/2018 1618 NOTICE by All Defendants vacation letter (Flammer, Sean) (Entered: 04/09/2018)

04/27/2018 1619 Unopposed MOTION to Stay Unopposed Motion for 60−Day Stay of Fee−Related Deadlines by All Defendants. (Attachments: # 1 Text of Proposed Order)(Batista, Andrea) (Entered: 04/27/2018)

04/30/2018

1620

NOTICE by All Defendants of Filing of Quarterly Monitoring Report (Attachments: # 1 Exhibit April 2018 Quarterly Monitoring Report, # 2 Exhibit List, # 3 Exhibit 1. CMS−416 Annual EPSDT Participation Report − 2017, # 4 Exhibit 2. MAXIMUS THSteps Reports, # 5 Exhibit 3. DSHS THSteps Provider Relations Activities Report, # 6 Exhibit 4. Activities Report for Medicaid Managed Care Organizations, # 7 Exhibit 5. THSteps Active and Enrolled Dental Provider Participation Report 1996−current, # 8 Exhibit 6. MTM Toll−Free Number Compliance Report, # 9 Exhibit 7. SFY 2017 Report on Case Management for Children and Pregnant Women, # 10 Exhibit 8. SFY 2018 Q1 Report on Case Management for Children and Pregnant Women)(Flammer, Sean) (Entered: 04/30/2018)

05/01/2018 1621 ORDER − GRANTING 1619 Motion to Stay Fee−Related Deadlines. All such deadlines are stayed for an additional 60 days, and the parties shall submit any resulting agreed proposals within 60 days of this order. Signed by District Judge Richard A. Schell on 5/1/2018. (baf, ) (Entered: 05/01/2018)

05/07/2018 1622 Unopposed MOTION to Seal Defendants' Opposed Motion for Court Resolution Regarding the Second Study for the Corrective Action Order: Case Management by All Defendants. (Attachments: # 1 Text of Proposed Order)(Batista, Andrea) (Entered: 05/07/2018)

05/07/2018 1623 Opposed SEALED MOTION for Court Resolution Regarding the Second Study for the Corrective Action Order: Case Management [Dkt. 1551] by All Defendants. (Attachments: # 1 Exhibit List, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Text of Proposed Order)(Batista, Andrea) (Entered: 05/07/2018)

05/09/2018

1624

ORDER − GRANTING 1622 Motion to File Under Seal. It is therefore ORDERED that Defendants' Motion is granted, and Defendants may file their Motion for Court Resolution Regarding the Second Study for the Corrective Action Order: Case Management, under seal. Signed by District Judge Richard A. Schell on 5/9/2018. (baf, ) (Entered: 05/09/2018)

05/22/2018 1625 Unopposed MOTION for Extension of Time to File a Response to Defendants Motion for Court Resolution Regarding the Second Study for the Corrective Action Order: Case Management by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Proposed Order)(Craig, Timothy) (Entered: 05/22/2018)

05/23/2018

1626

ORDER − GRANTING 1625 Motion for Extension of Time to File a Response to Defendants' Motion for Court Resolution Regarding the Second Study for the Corrective Action Order. Plaintiffs' deadline to respond to Defendants' motion (Dkt. 1623) is therefore extended until May 25, 2018. Signed by District Judge Richard A. Schell on 5/23/2018. (baf, ) (Entered: 05/23/2018)

05/25/2018 1627 Unopposed MOTION to Seal Response to Defendants' Opposed Motion for Court Resolution Regarding the Second Study for the Corrective Action Order: Case Management by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Proposed Order)(Craig, Timothy) (Entered: 05/25/2018)

05/25/2018

1628

SEALED RESPONSE to Motion re 1623 Opposed SEALED MOTION for Court Resolution Regarding the Second Study for the Corrective Action Order: Case Management [Dkt. 1551] filed by All Plaintiffs. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Text of Proposed Order Proposed Order)(Craig, Timothy) (Entered: 05/25/2018)

05/30/2018

1629

ORDER. It is therefore ORDERED that Plaintiffs' Motion to File Under Seal 1627 is GRANTED, and Defendants may file their Response to Defendants' Motion for Court Resolution Regarding the Second Study for the Corrective Action Order: Case Management, under seal. Signed by District Judge Richard A. Schell on 5/29/2018. (baf, ) (Entered: 05/30/2018)

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 142 of 145

06/01/2018 1630 Unopposed MOTION for Leave to File Their Reply Under Seal by All Defendants. (Attachments: # 1 Text of Proposed Order)(Batista, Andrea) (Entered: 06/01/2018)

06/01/2018 1631 SEALED REPLY to Response to Motion re 1623 Opposed SEALED MOTION for Court Resolution Regarding the Second Study for the Corrective Action Order: Case Management [Dkt. 1551] filed by All Defendants. (Batista, Andrea) (Entered: 06/01/2018)

06/06/2018 1632 ORDER − GRANTING 1630 Motion for Leave to File Reply Under Seal. Signed by District Judge Richard A. Schell on 6/6/2018. (baf, ) (Entered: 06/06/2018)

06/08/2018 1633 Unopposed MOTION for Extension of Time to File a Sur−Reply to Defendants Motion forCourt Resolution Regarding the Second Study for the Corrective Action Order: Case Management by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Proposed Order)(Craig, Timothy) (Entered: 06/08/2018)

06/12/2018

1634

ORDER − GRANTING 1633 Motion for Extension of Time to File a Sur−Reply to Defendants' Motion for Court Resolution Regarding the Second Study for the Corrective Action Order. Plaintiffs' deadline to respond to Defendants' reply (Dkt. 1623) is therefore extended until June 12, 2018. Signed by District Judge Richard A. Schell on 6/11/2018. (baf, ) (Entered: 06/12/2018)

06/12/2018 1635 ***DEFICIENT DOCUMENT − ATTORNEY MUST REFILE***

Unopposed MOTION to Seal Document a Sur−Reply to Defendants Motion forCourt Resolution Regarding the Second Study for the Corrective Action Order: Case Management by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Proposed Order)(Craig, Timothy) Modified on 6/13/2018 (baf, ). (Entered: 06/12/2018)

06/12/2018 1636 SEALED REPLY to Response to Motion re 1623 Opposed SEALED MOTION for Court Resolution Regarding the Second Study for the Corrective Action Order: Case Management [Dkt. 1551] filed by All Plaintiffs. (Attachments: # 1 Exhibit Exhibit 1)(Craig, Timothy) (Entered: 06/12/2018)

06/13/2018 1637 Unopposed MOTION to Seal Sur−Reply to Defendants Opposed Motion for Court Resolution Regarding the Second Study for the Corrective Action Order: Case Management by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Proposed Order)(Craig, Timothy) (Entered: 06/13/2018)

06/13/2018

NOTICE of Deficiency regarding the MOTION TO SEAL DOCUMENT submitted DOCUMENT 1635 − THE MOTION IS NOT ATTACHED AS THE MAIN DOCUMENT − THE MAIN DOCUMENT IS A PROPOSED ORDER AND THE ATTACHMENT IS A SUR−REPLY. Correction should be made by ONE BUSINESS DAY (baf, ) (Entered: 06/13/2018)

06/14/2018

1638

ORDER − It is therefore ORDERED that Plaintiffs' Motion [de 1637 ] is GRANTED, and Plaintiffs may file their Sur−Reply to Defendants' Motion for Court Resolution Regarding the Second Study for the Corrective Action Order: Case Management, under seal. Signed by District Judge Richard A. Schell on 6/14/2018. (baf, ) (Entered: 06/14/2018)

07/02/2018 1639 ***DEFICIENT DOCUMENT − ATTORNEY MUST REFILE***

Unopposed MOTION for Leave to File Excess Pages by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Proposed Order)(Craig, Timothy) Modified on 7/3/2018 (baf, ). (Entered: 07/02/2018)

07/02/2018

1640

Opposed MOTION for Attorney Fees Incurred 2011 to 2016 by All Plaintiffs. (Attachments: # 1 Exhibit Ex 1 Declaration of Susan Zinn, # 2 Exhibit Ex A−1 to Declaration of Susan Zinn, # 3 Exhibit Exhibit A−2 to the Declaration of Susan Zinn, # 4 Exhibit Ex A−3 to the Declaration of Susan Zinn, # 5 Exhibit Exhibit A−4 to the Declaration of Susan Zinn, # 6 Exhibit Ex B−1 to the Declaration of Susan Zinn, # 7 Exhibit Ex B−2 to the Declaraion of Susan Zinn, # 8 Exhibit Ex 2 Declaration of Jane Swanson, # 9 Exhibit Ex A−1 to the Declaration of Jane Swanson, # 10 Exhibit Ex A−2 to the Declaration of Jane Swanson, # 11 Exhibit Ex A−3 to the Declaration of Jane Swanson, # 12 Exhibit Ex A−4 to the Declaration of Jane Swanson, # 13 Exhibit Ex A−5 to the Declaration of Jane Swanson, # 14 Exhibit Ex A−6 to the Declaration of Jane Swanson, # 15 Exhibit Ex B−1 to the Declaration of Jane Swanson, # 16

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 143 of 145

Exhibit Ex B−2 to the Declaration of Jane Swanson, # 17 Exhibit Ex 3 Declaration of Tim Garrigan, # 18 Exhibit Ex A−2 to the Declaration of Tim Garrigan, # 19 Exhibit Ex A−3 to the Declaration of Tim Garrigan, # 20 Exhibit Ex A−4 to the Declaration of Tim Garrigan, # 21 Exhibit Ex A−5 to the Declaration of Tim Garrigan, # 22 Exhibit Ex A−6 to the Declaration of Tim Garrigan, # 23 Exhibit Ex b−2 to the Declaration of Tim Garrigan, # 24 Exhibit Ex 4 Declaraion of Timothy Craig, # 25 Exhibit Ex A−1 to the Declaration of Timothy Craig, # 26 Exhibit Ex A−2 to the Declaration of Timothy Craig, # 27 Exhibit Ex A−3 to the Declaration of Timothy Craig, # 28 Exhibit Ex A−4 to the Declaration of Timothy Craig, # 29 Exhibit Exhibit 5, # 30 Exhibit Exhibit 6 Declaration of Otis Carroll, # 31 Exhibit Declaration of Sam Baxter, # 32 Text of Proposed Order Proposed Order)(Craig, Timothy) (Entered: 07/02/2018)

07/03/2018

NOTICE of Deficiency regarding the MOTION FOR LEAVE TO FILE submitted DOCUMENT 1639 − CERTIFICATE OF CONFERENCE DOES NOT COMPLY WITH OUR LOCAL RULES. Correction should be made by ONE BUSINESS DAY (baf, ) (Entered: 07/03/2018)

07/03/2018 1641 Unopposed MOTION for Leave to File Excess Pages corrected mo by All Plaintiffs. (Attachments: # 1 Text of Proposed Order)(Garrigan, Timothy) (Entered: 07/03/2018)

07/06/2018 1642 ORDER granting 1641 Motion for Leave to File Excess Pages. Signed by District Judge Richard A. Schell on 7/6/2018. (daj, ) (Entered: 07/06/2018)

07/10/2018 1643 Unopposed MOTION for Extension of Time to File Response/Reply as to 1640 Opposed MOTION for Attorney Fees Incurred 2011 to 2016 by All Defendants. (Attachments: # 1 Text of Proposed Order)(Flammer, Sean) (Entered: 07/10/2018)

07/11/2018 1644 ORDER granting 1643 Motion for Extension of Time to File Response as to 1640 Opposed MOTION for Attorney Fees Incurred 2011 to 2016 . Responses due by 8/3/2018. Signed by District Judge Richard A. Schell on 7/11/2018. (daj, ) (Entered: 07/12/2018)

07/31/2018 1645 NOTICE by All Defendants of filing Quarterly Report July Quarterly Monitoring Report (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit)(Flammer, Sean) (Entered: 07/31/2018)

08/03/2018

1646

ORDER SETTING CASE FOR A STATUS CONFERENCE. This case is set for a status conference on TUESDAY, OCTOBER 30, 2018 at 10:00 am.. The parties shall provide to the court a chart listing all pending motions along with the associated docket entry numbers by TUESDAY, OCTOBER 23, 2018. Signed by District Judge Richard A. Schell on 8/3/2018. (daj, ) (Entered: 08/03/2018)

08/03/2018 1647 Unopposed MOTION for Leave to File Excess Pages by All Defendants. (Attachments: # 1 Text of Proposed Order)(Batista, Andrea) (Entered: 08/03/2018)

08/03/2018

1648

RESPONSE to Motion re 1640 Opposed MOTION for Attorney Fees Incurred 2011 to 2016 filed by All Defendants. (Attachments: # 1 Exhibit List, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Text of Proposed Order)(Batista, Andrea) (Entered: 08/03/2018)

08/06/2018 1649 ORDER granting 1647 Defendants' Unopposed Motion to Exceed Page Limit. Signed by District Judge Richard A. Schell on 8/6/2018. (daj, ) (Entered: 08/07/2018)

08/10/2018 1650 First MOTION for Extension of Time to File Response/Reply as to 1648 Response to Motion, 1640 Opposed MOTION for Attorney Fees Incurred 2011 to 2016 by All Plaintiffs. (Attachments: # 1 Text of Proposed Order granting extra time and pages)(Garrigan, Timothy) (Entered: 08/10/2018)

08/13/2018

1651

ORDER granting 1650 Motion for Extension of Time to File Reply as to 1648 Response to Motion, 1640 Opposed MOTION for Attorney Fees Incurred 2011 to 2016 . Plaintiffs to file their Reply on or before September 4, 2018, not to exceed 58 pages. Signed by District Judge Richard A. Schell on 8/13/2018. (daj, ) (Entered: 08/13/2018)

09/04/2018 1652 REPLY to Response to Motion re 1640 Opposed MOTION for Attorney Fees Incurred 2011 to 2016 filed by All Plaintiffs. (Craig, Timothy) (Entered: 09/04/2018)

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 144 of 145

09/10/2018 1653 Unopposed MOTION for Extension of Time to File Response/Reply as to 1640 Opposed MOTION for Attorney Fees Incurred 2011 to 2016 by All Defendants. (Attachments: # 1 Text of Proposed Order)(Flammer, Sean) (Entered: 09/10/2018)

09/12/2018

1654

ORDER granting 1653 Defendants' Unoppposed Motion for Extension of Time to File Sur−Reply. Defendants may file their Sur−Reply to Plaintiffs' Contested 2018 Motion for Interim Award of Certain Attorneys' Fees, Costs and Expenses Incurred during 2011 through 2016 on or before September 21, 2018. Signed by District Judge Richard A. Schell on 9/11/2018. (daj, ) (Entered: 09/12/2018)

09/18/2018 1655 Opposed MOTION for Leave to File Corrected Exhibits by All Defendants. (Attachments: # 1 Exhibit Corrected Exhibit 1, # 2 Exhibit Corrected Exhibit 2, # 3 Exhibit Corrected Exhibit 3, # 4 Text of Proposed Order)(Batista, Andrea) (Entered: 09/18/2018)

09/18/2018 1656 SUR−REPLY to Reply to Response to Motion re 1640 Opposed MOTION for Attorney Fees Incurred 2011 to 2016 filed by All Defendants. (Batista, Andrea) (Entered: 09/18/2018)

10/02/2018 1657 RESPONSE in Opposition re 1655 Opposed MOTION for Leave to File Corrected Exhibits filed by All Plaintiffs. (Attachments: # 1 Text of Proposed Order Proposed Order)(Craig, Timothy) (Entered: 10/02/2018)

10/03/2018 1658 REPLY to Response to Motion re 1655 Opposed MOTION for Leave to File Corrected Exhibits filed by All Defendants. (Flammer, Sean) (Entered: 10/03/2018)

10/09/2018 1659 Opposed MOTION to Strike 1656 Sur−Reply to Reply to Response to Motion or in the Alternative to Consider Plaintinffs Supplemental Arguments in Response by All Plaintiffs. Responses due by 10/23/2018 (Attachments: # 1 Text of Proposed Order Proposed Order)(Craig, Timothy) (Entered: 10/09/2018)

10/22/2018 1660 STATUS REPORT Joint Report of Pending Motions by All Defendants. (Flammer, Sean) (Entered: 10/22/2018)

10/22/2018

1661

RESPONSE to Motion re 1659 Opposed MOTION to Strike 1656 Sur−Reply to Reply to Response to Motion or in the Alternative to Consider Plaintinffs Supplemental Arguments in Response −−Defendants' Response in Opposition to Plaintiffs' Motion to Strike Arguments Raised in Defendants' Sur−Reply (Dkt. 1656) or in the Alternative to Consider Plaintiffs' Arguments in Response (Dkt. 1659) filed by All Defendants. (Batista, Andrea) (Entered: 10/22/2018)

10/25/2018 1662 NOTICE by All Defendants Defendants' Notice of Filing Quarterly Monitoring Report − October 2018 (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit)(Flammer, Sean) (Entered: 10/25/2018)

10/28/2018 1663 MOTION for Attorney Fees Notice, partially opposed by All Plaintiffs. (Attachments: # 1 Exhibit unopposed proposed fee notice, # 2 Text of Proposed Order Order granting mo, # 3 Exhibit example of order in another case)(Garrigan, Timothy) (Entered: 10/28/2018)

10/30/2018 1664 Minute Entry for proceedings held before District Judge Richard A. Schell: Status Conference held on 10/30/2018. (Court Reporter Digital Recording.) (lab, ) (Entered: 10/30/2018)

11/12/2018 1665 RESPONSE to Motion re 1663 MOTION for Attorney Fees Notice, partially opposed filed by All Defendants. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Text of Proposed Order)(Batista, Andrea) (Entered: 11/12/2018)

11/13/2018 1666 REPLY to Response to Motion re 1663 MOTION for Attorney Fees Notice, partially opposed filed by All Plaintiffs. (Garrigan, Timothy) (Entered: 11/13/2018)

12/03/2018 1667 ORDER. For effective disposition of cases in the Eastern District of Texas, IT IS ORDERED that the above civil case is reassigned from Senior District Judge Richard A. Schell to District Judge Robert W. Schroeder, III. Signed by District Judge Rodney Gilstrap on 12/3/2018. (baf, ) (Entered: 12/04/2018)

01/30/2019 1668 NOTICE by All Defendants of Filing Quarterly Monitoring Report (Attachments: # 1 Exhibit January 2019 Quarterly Monitoring Report, # 2 Exhibit List, # 3 Exhibit 1

Case: 3:93-cv-00065-RWS As of: 04/11/2019 09:40 AM CDT 145 of 145

MAXIMUS Texas Health Steps Reports, # 4 Exhibit 2 DSHS THSteps Provider Relations Activities Reports, # 5 Exhibit 3 Activities Report for Medicaid Managed Care Organizations, # 6 Exhibit 4 THSteps Active and Enrolled Dental Provider Participation Report 1996−current, # 7 Exhibit 5 Medical Transportation Management Toll−Free Number Report Sep−Nov 2018, # 8 Exhibit 6 SFY 2017 Report on Targeted Case Management Services, # 9 Exhibit 7 SFY 2018 Q4 Report on Case Management for Children and Pregnant Women Services)(Flammer, Sean) (Entered: 01/30/2019)

03/07/2019

1669

ORDER. On December 3, 2018, Chief Judge Rodney Gilstrap reassigned the above captioned case to the undersigned. Docket No. 1667. On October 30, 2018, prior to the reassignment, Senior District Judge Richard Schell held a status conference at which the parties addressed several topics and several pending motions. See Docket No. 1664. Judge Schell anticipates issuing an order on one or more of the motions addressed at the status conference soon. Once that occurs, the undersigned will assume full responsibility for this case and set a status conference forthwith. Signed by District Judge Robert W. Schroeder, III on 3/7/2019. (baf, ) (Entered: 03/07/2019)

 
 Case 3:93-cv-00065-RAS Document 1 Filed 09/01/93 Page 1 of 20 PageID #: 6924

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS PARIS DIVISION

JENEVA FRAZAR, as next friend

§

of her minor children, JAMES

§

CURTIS BROWN, CRYSTAL NOELEVOL

§

BROWN, JEREMIAH DeMARK PHILLIPS, §

RUSSELL KLINE WALTON, and

§

DOMINIQUE SHANTEL FRAZAR, and

§

LINDA FREW, as next friend of

§

her minor child, CARLA FREW,

§

§

Plaintiffs,

§

§

v.

§

§

RICHARD LADD, Commissioner of

§

the Texas Health and Human

§

Services Commission, in his

§

official capacity, the TEXAS

§

HEALTH AND HUMAN SERVICES

§

COMMISSION, DAVID SMITH,

§

Commissioner of the Texas

§

Department of Health,

§

in his official capacity, and

§

the TEXAS DEPARTMENT OF HEALTH,

§

§

Defendants.

§

')EP 1 ~ i99J
CIVIL ACTION NO. 3:Cj~vloS

PLAINTIFFS' ORIGINAL COMPLAINT

INTRODUCTION

1. Despite a Congressional mandate, Defendants do not

provide adequate health care services to indigent Texas Medicaid

recipients who have not reached the age of 21. Defendants do not

adequately provide Early, Periodic, Screening, Diagnosis and

Treatment (EPSDT) services to young Medicaid recipients, as
required by 42 u.s.c. §§ 1396a(a) (43); 1396d(r).

2. EPSDT is intended to provide comprehensive, timely and

cost effective health care services to indigent youth. By failing

to meet EPSDT requirements, Defendants leave some of the most

1

\

Case 3:93-cv-00065-RAS Document 1 Filed 09/01/93 Page 2 of 20 PageID #: 6925
vulnerable children in Texas without adequate health care services and at risk for increasingly severe and costly health problems.
3. Plaintiffs challenge Defendants' policies and procedures, which deprive Plaintiffs under color of state law of rights,
privileges and immunities guaranteed by 42 u.s.c. §§ 1396a(a) (43);
1396d(r), which are sufficiently clear to allow enforcement by this Court. Plaintiffs seek declaratory and injunctive relief, 28
u.s. c. §§ 2201, 2202; 42 u.s.c. § 1983; F.R.Civ.P. 57, 65;
certification of this case as a class, F.R.Civ.P. 23, attorney's
fees and costs. 28 u.s.c. § 1920; 42 u.s.c. § 1988.
JURISDICTION 4. This Court has jurisdiction in accordance with the
provisions of 28 u.s.c. §§ 1331, 1343(3) and (4).
VENUE 5. Venue is proper because a substantial part of the events or omissions that form the basis of this claim occurred in this
judicial district. 28 u.s.c. § 1391(b).
PARTIES 6. Plaintiff Jeneva Frazar and her children reside at 2 02 W. Washington, Paris, Lamar County, Texas 75460. She appears in this case as next friend of her minor children, James Curtis Brown (born April 30, 1986), Crystal Noelevol Brown (born October 4, 1987), Jeremiah DeMark Phillips (born December 4, 1989), Russell Kline Walton (born October 27, 1990) and Dominique Shantel Frazar (born November 15, 1992).
2

Case 3:93-cv-00065-RAS Document 1 Filed 09/01/93 Page 3 of 20 PageID #: 6926
7. Plaintiff Linda Frew and her daughter reside at 650 N.W. 1st street, Cooper, Delta County, Texas 75432. Linda Frew appears in this case as next friend of her minor daughter, Carla (born June 281 1980} •
8. Defendant Richard Ladd is the Commissioner of the Texas Health and Human Services Commission. He is sued in his official capacity only. He may be served with process at the offices of the Texas Health and Human Services Commission, 4807 Spicewood Springs Road, Building 4, Austin, Texas 78759. As commissioner, Defendant Ladd is responsible for the policies and administration of the Texas Health and Human Services Commission.
9. Defendant Texas Health and Human Services Commission may be served with process at its offices at 4807 Spicewood Springs Road, Building 4, Austin, Texas 78759. The Texas Health and Human Services Commission is the "single state agency," 42 u.s.c. § 1396a(a} (5}, that administers or supervises the administration of the Texas Medicaid program, including EPSDT. The commission also has final authority over the policies of the Texas Medicaid program, including EPSDT.
10. Defendant David Smith is the Commissioner of the Texas Department of Health. He is sued in his official capacity only. He may be served with process at the offices of the Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756. As Commissioner, Defendant Smith is responsible for the policies and administration of the Texas Department of Health.
3

Case 3:93-cv-00065-RAS Document 1 Filed 09/01/93 Page 4 of 20 PageID #: 6927
11. Defendant Texas Department of Health may be served with process at its offices, 1100 West 49th street, Austin, Texas 78756. On September 1, 1993, the administration of health and human services programs in Texas was reorganized. As a result of the reorganization, the Department is now responsible for proposing policies for the Texas Medicaid program, including EPSDT. The Department of Health now also administers the Texas Medicaid program, including EPSDT.
CLASS CERTIFICATION 12. Plaintiffs bring this action on behalf of themselves and a class of those who are similarly situated. The class consists of present and future Texas Medicaid recipients who are eligible for EPSDT services because they have not reached the age of 21. F.R. Civ. P. 23. According to official reports of the Texas EPSDT program, about 1,200,000 Texans were eligible for EPSDT services in fiscal year 1992. The number of children who are eligible for EPSDT services should be even larger in the coming years. 13. A class action is appropriate because 1) the class is so numerous that joinder of all members is impracticable, 2) this case involves questions of law or fact that are common to the class, 3) Plaintiffs' claims are typical of the claims of the class, and 4) Plaintiffs will fairly and adequately protect the interests of the class. F.R. civ. P. 23(a). 14. Further, this case should be maintained as a class action because Defendants have acted or refused to act on grounds generally applicable to the class, so final injunctive and
4

Case 3:93-cv-00065-RAS Document 1 Filed 09/01/93 Page 5 of 20 PageID #: 6928
declaratory relief is appropriate with respect to the class. F.R. Civ. P. 23 (b) (2).
FACTS The Plaintiffs Jeneva Frazar and her Children 15. Jeneva Frazar is a young, single mother. Her five minor children live with her: James Curtis Brown (born April 30, 1986), Crystal Noelevol Brown (born October 4, 1987), Jeremiah DeMark Phillips (born December 4, 1989) , Russell Kline Walton (born October 27, 1990) and Dominique Shantel Frazar (born November 15, 1992). 16. Even though Jeneva Frazar's children have received Medicaid benefits continuously since birth, none of them has received all of the health screens that the Texas EPSDT periodicity schedule envisions. For example, the infant, Dominique, was born on November 15, 1992 and is 9 months old. According to the EPSDT periodicity schedule for health screens, she should have had 6 screens by now. But, she has only been to the doctor once since she left the hospital after her birth. 17. Further, even though the EPSDT periodicity schedule indicates that children should begin to see a dentist for preventive and palliative care, if needed, at age 1 and continue every six months thereafter, only James and Crystal have ever been to the dentist. They have seen a dentist once. Crystal had a cavity. Neither has returned for follow-up visits.
5

Case 3:93-cv-00065-RAS Document 1 Filed 09/01/93 Page 6 of 20 PageID #: 6929
18. Jeneva Frazar' s children further suffer from health problems for which there has not been proper follow up. Crystal had lead poisoning, which was treated. The source of Crystal's poisoning was the leaded paint on the porch of the house where all of the children once lived with their mother. But, Crystal's siblings never received lead blood tests to determine accurately if they had been poisoned, even though their access to the porch was the same as Crystal's.
19. Further, Jeremiah has several health problems. He has asthma and bronchitis. His mother frequently takes him to the emergency room at st. Joseph's Hospital in Paris for care. Once, she took him to the emergency room because his gums were swollen and bleeding. It is particularly difficult for the Frazar family to make trips to the emergency room; they do not have child care, so Ms. Frazar has to take all of the young children to the hospital. They do not have a car or a telephone so arrangements are difficult at best. Further, many times, Jeremiah could probably receive care at another location, which might prevent worsening problems and would be safer, more consistent with principles of continuity of care, less traumatic and less expensive. Further, although Jeremiah's speech is slurred, he has not been treated for speech problems.
20. Russell has problems with his right leg. Instead of pointing forward in a normal direction, his foot angles toward the side. It frequently causes him pain; sometimes the pain is so bad that Russell cannot sleep at night. Russell's leg problem prevents
6

Case 3:93-cv-00065-RAS Document 1 Filed 09/01/93 Page 7 of 20 PageID #: 6930
him from running normally. But, Russell has never seen an orthopedic or other specialist for evaluation or treatment of his leg problem.
21. Dominique, the baby, is behind on her immunizations. She has only received one set of immunizations, instead of the six (6) sets that she should have received by now. She has not received any hepatitis B immunications, as required by EPSDT rules.
22. Jeneva Frazar and her children have virtually no knowledge about EPSDT. Defendants have not effectively informed them about program benefits. Further, Defendants have not assisted the Frazar children to get timely screens or follow up care.
Linda Frew and her Daughter 23. Linda Frew is a single mother. She is now undergoing chemotherapy for lung cancer. She has been hospitalized for mental health problems. Two of her three sons died at a young age. One died at age 21 of a rare kidney disorder. The second died at age 17 of a rare form of abdominal cancer. 24. Linda and her daughter, Carla (born June 28, 1980), live together in public housing in Cooper, Delta County, Texas. They do not have a car or a telephone. 25. Delta County is a small, rural county. The County has few health care resources. 26. Carla has been a Medicaid recipient continuously since birth. During that time, she should have received 17 health screens. Carla has not received the full number of health screens indicated by the EPSDT periodicity schedule for that time period.
7

Case 3:93-cv-00065-RAS Document 1 Filed 09/01/93 Page 8 of 20 PageID #: 6931

27. carla has been in and out of special services classes

during most of her years of schooling.

28. Until September 1, 1993, the Texas Department of Human

Services was the agency that had responsibility for the EPSDT

program.

29. From February 23, 1987 to November 05, 1990, Carla was

in the temporary custody of the Texas Department of Human Services.

From February 23, 1987 to February 27, 1989, she was in foster care

in Hopkins and Lamar County, Texas. carla remained in the

Department of Human Services 1 custody for 21 months after she

returned to live with her mother, Linda. Linda now has custody of

Carla.

30. While the Department of Human Services had custody of

Carla, the Department supervised carla 1 s health care. For example,

Defendant's staff took Carla to Dallas several times to see a

specialist because her triglycerides were so high. They also took

her for several psychological and neurological evaluations. Of

course, mental health problems are common among children who live

in foster care. Carla's mental health diagnoses ranged from

dysthymia (a mood disorder) to severe right brain hemisphere

dysfunction and possible childhood schizophrenia.

Various

treatment plans were recommended. Further, while she was in the

Department's custody, Carla was grossly obese.

31. After Carla returned to live with her mother and the

Department of Human Services ceased to have conservatorship over

her, DHS no longer assisted with Carla's health care. Carla has not

8

Case 3:93-cv-00065-RAS Document 1 Filed 09/01/93 Page 9 of 20 PageID #: 6932
had any medical screens and has only been to the dentist once since being returned to her mother's custody on November 05, 1990. She is still grossly obese (5 1 4", 232 1/2 lbs. on March 9, 1993), but she has not received nutritional counseling or treatment beyond advice to cut back on her caloric intake. There has been no follow up on this issue. Further, Carla has had pain in her abdomen on and off for the past year. Her triglycerides and cholesterol have not been assessed. Carla's mental health problems, if any, are unevaluated and continue to go untreated. Carla's lack of current mental health services is particularly egregious because of her past diagnoses of mental health problems and the many stresses that Carla faces. Those stresses include the premature deaths of her two brothers (one because of cancer) and her mother's current cancer.
32. Further, Defendants have not assisted Carla Frew to receive the EPSDT benefits to which she is entitled.
33. Carla's ongoing health problems that have not been properly evaluated or treated recently.
34. Linda and Carla Frew have virtually no knowledge about EPSDT. Defendants have not effectively informed them about program benefits. Further, Defendants have not assisted Carla to get timely screens or follow up care. This failure is particularly problematic because the Department of Human Services (Defendant Department of Health's predecessor in the administration of EPSDT) has first hand knowledge of Carla's health care needs.
9

Case 3:93-cv-00065-RAS Document 1 Filed 09/01/93 Page 10 of 20 PageID #: 6933
The Medicaid Program 35. Congress enacted Title XIX of the Social Security Act in
1965. 42 u.s.c. § 1396 et. seq. Title XIX is also known as the
Medicaid program. Medicaid is administered cooperatively by the federal and state governments. Its purpose is to provide necessary medical services to eligible indigents.
36. The State of Texas participates in the Medicaid program. 37. The federal government provides approximately 64 cents of every dollar that the Texas Medicaid program spends on health care services for the poor. Texas must comply with minimum federal Medicaid requirements to receive this federal financial participation. 38. Further, the Health Care Financing Administration {HCFA), the federal agency that administers EPSDT, has published program guidelines in the State Medicaid Manual. Sections of the Manual are mandatory and binding upon the states.
The Early, Periodic, Screening, Diagnosis and Treatment Program 39. Congress has long been concerned about poverty among children in the United States. Congress is particularly concerned about the health of indigent children in this country, because their living circumstances frequently contribute to or exacerbate health problems. Further, undiagnosed or untreated health problems may prevent indigent children from developing normally and inhibit their ability to contribute to society. 40. EPSDT is one of Congress' most significant responses to the health care needs of our country's indigent children. EPSDT is
10

Case 3:93-cv-00065-RAS Document 1 Filed 09/01/93 Page 11 of 20 PageID #: 6934
a mandatory Medicaid service; states must comply with minimum federal EPSDT requirements in order to participate in the Medicaid program and receive federal financial participation.
41. EPSDT involves a comprehensive program of screens, or check ups, to assess children's health and follow up care to address problems that are diagnosed during screens. EPSDT programs cannot limit the services that they provide to children, as Medicaid programs can limit services to adults. Instead, when medically necessary, EPSDT programs must provide all services allowed by the federal Medicaid Act, whether or not they are included in the state's Medicaid Plan. 42 u.s.c. § 1396d(r).
42. The Omnibus Budget Reconciliation Act of 1989 (OBRA'89) strengthened Medicaid programs' obligations to EPSDT recipients. Congress' intent was to incorporate the EPSDT regulations that existed in 1984 into OBRA'89 and also to expand Medicaid programs' EPSDT obligations beyond those incorporated in the regulations. The regulations have not been revised since OBRA'89 became effective. But, after OBRA'89 became effective, HCFA revised the EPSDT guidelines that are incorporated in the state Medicaid Manual.
Screens 43. EPSDT programs must provide preventive health care to indigent Medicaid recipients under the age of 21. A significant and mandatory component of the EPSDT program is regular screens, or "check ups," to assess recipients' health. One purpose of screens is to identify indigent recipients' health problems before they
11
,,

Case 3:93-cv-00065-RAS Document 1 Filed 09/01/93 Page 12 of 20 PageID #: 6935
worsen, so that problems can be corrected in a manner that is humane, cost effective and that prevents or lessens future problems when possible.
44. EPSDT programs must provide screens to assess recipients' physical, mental, vision, hearing and dental health and to provide immunizations. Screens and immunizations must be provided in accordance with periodicity schedules that meet professional
standards. 42 u.s.c. §§ 1396d(r) (1) (A) (i); (2) (A) (i); (3) (A) (i);
(4) (A) (i); State Medicaid Manual§ 5140. 45. In spite of the federal requirements concerning screens,
the Texas EPSDT program does not assure that EPSDT recipients receive screens when due. Plaintiffs' children have received few timely health screens. Further, none has received regular dental screens. This situation is common. See, below, Paragraph 44.
46. Congress requires EPSDT programs to meet annual participation goals established by the Secretary of Health and Human Services, to assure that an increasing number of EPSDT
recipients actually receive screens. 42 u.s.c. § 1396d. The
Secretary established participation goals for health screens; EPSDT programs must achieve 80% participation by 1995. Expected annual increases are based upon each state's participation rates in 1989, the baseline year. State Medicaid Manual § 5360.
47. The Texas EPSDT program fails to meet the Secretary's participation goals. The goals and Texas participation rates are as follows:
12

Case 3:93-cv-00065-RAS Document 1 Filed 09/01/93 Page 13 of 20 PageID #: 6936

FISCAL YEAR

GOAL

RATE

1989

24%

1991

34%

1992

46%

1993

58%

1994

69%

1995

80%

33.2% 36.69%

Further, the Texas EPSDT program is falling farther behind its

targeted participation goal each year. Although it was less than

1% behind its goal in fiscal year 1991, it was almost 10% behind

its goal in fiscal year 1992.

48. In addition, most Texas EPSDT recipients do not receive

dental, vision or hearing screens as required by the Texas

periodicity schedules. According to the periodicity schedule,

EPSDT recipients should receive dental screens every 6 months

beginning at age 1. 40 T.A.C. § 33.306(c). They should also

receive vision and hearing screens. According to official Texas

EPSDT reports, few actually receive dental, vision or hearing

screens:

# ELIGIBLE

Dental Vision

Hearing

1991

1,029,776

172,014 152,793

70,667

1992

1,197,648

199,218 182,566

79,805

49. The Texas EPSDT program does not employ policies or

procedures to assure that EPSDT recipients receive timely health,

dental, vision, or hearing screens.

State Medicaid Manual §

5310. The Texas EPSDT program further does not employ policies or

procedures to assure that recipients who "are overdue for services"

receive them. State Medicaid Manual § 5330.

13

1 Case 3:93-cv-00065-RAS Document 1 Filed 09/01/93 Page 14 of 20 PageID #: 6937
Identifying and Informing Recipients and their Families about EPSDT
50. To ameliorate problems with low EPSDT participation, congress requires EPSDT programs to aggressively identify and inform families whose children are eligible for EPSDT services about the benefits of EPSDT. 42 U.S.C. 1396a(a)(43) (A). Federal regulations further require EPSDT programs to inform eligible individuals about EPSDT services and how to obtain them. 42 C.F.R. §§ 441.56(c) (2); 441.62(b) (1984) (1984).
51. Also, the State Medicaid Manual requires EPSDT programs to inform eligible persons about EPSDT effectively and in a timely manner, generally within 60 days of eligibility. § 5121A. Further, the Manual instructs that "[a] combination of face-toface, oral and written informing activities is most productive •••• it is effective and efficient to target specific informing activities to particular 'at risk' groups." Id. The state Medicaid Manual further requires EPSDT programs to offer transportation and scheduling assistance prior to each due date of a child's periodic examination." § 5150 (emphasis added).
52. In spite of the requirement that EPSDT programs effectively inform recipients and their families about EPSDT benefits, Plaintiffs and their children are unaware of EPSDT. This situation is common, particularly because the Texas EPSDT program does not employ effective means to inform recipients about program benefits. Further, the Texas EPSDT program does not comply with the requirements imposed by the state Medicaid Manual.
14
\~

Case 3:93-cv-00065-RAS Document 1 Filed 09/01/93 Page 15 of 20 PageID #: 6938

Follow Up Treatment

53. EPSDT programs must provide "other necessary health care,

diagnostic services, treatment, and other measures ••. to correct

or ameliorate defects and physical and mental illnesses and
conditions discovered by the screening services. " 42 u.s.c. §

1396d(r) (5). EPSDT programs must refer recipients for "diagnosis

without delay and follow-up to make sure that the recipient

receives a complete diagnostic evaluation.... (They must also)

[d]evelop quality assurance procedures to assure comprehensive care

for the individual." State Medicaid Manual § 5124A. Further,

EPSDT programs must "[e]mploy processes to

insure timely

initiation of treatment" and assure that recipients who "are

overdue for services" receive them. Id. § 5330. But, according

to official EPSDT reports, only 139,072 of the almost 1,200,000

Texas EPSDT recipients received referrals for corrective treatment

in fiscal year 1992.

54. The Texas EPSDT program does not have effective policies

or procedures to insure that EPSDT recipients receive needed health

care, diagnosis, treatment or other measures needed to correct or

ameliorate defects and physical and mental illnesses and conditions

discovered during screens.

Case Management

55. The Texas EPSDT program does not make case management

available to all recipients. Case management is a service that

assists families to assure that their children receive needed

health care in a manner that is coordinated, appropriate and cost

15

Case 3:93-cv-00065-RAS Document 1 Filed 09/01/93 Page 16 of 20 PageID #: 6939

effective.

It could appreciably improve EPSDT recipients'

coordinated and timely access to screens and other EPSDT services.

Further, case management is a service that federal law permits

Medicaid programs to cover. 42 u.s.c. §§ 1396d(a) (19); 1396n(g).

So, EPSDT programs must provide it for children. 42 u.s.c. §

1396d(r).

Services are not Uniformly Available statewide

56. Finally, the Texas EPSDT program does not assure that

EPSDT services exist, operate and function uniformly in all

political subdivisions of the state. 42 u.s.c. § 1396a(a)(1); 42

C.F.R. § 431.50.

FIRST CAUSE OF ACTION

57. Defendants and the Texas EPSDT program do not employ

policies or procedures to assure that recipients receive health,

dental, vision and/or hearing screens in accordance with the Texas

EPSDT periodicity schedules. 42 u.s.c. §§ 1396d(r) (1) (A) (i);

(2) (A) (i); (3) (A) (i); (4) (A) (i);

State Medicaid Manual §§

5310;5330.

SECOND CAUSE OF ACTION

58. Defendants and the Texas EPSDT program do not meet the

annual participation goals that the Secretary of Health and Human

Services established for the Texas EPSDT program. 42 u.s.c. §

1396d(r); state Medicaid Manual§ 5360.

THIRD CAUSE OF ACTION

59. Defendants and the Texas EPSDT program do not effectively

inform all persons in the State who are under age 21 and who are

16

Case 3:93-cv-00065-RAS Document 1 Filed 09/01/93 Page 17 of 20 PageID #: 6940
eligible for Medicaid of the availability of EPSDT services. 42 u.s.c. § 1396a{a) {43) {A); 42 C.F.R. § 441.56(a); state Medicaid Manual § 5121.
FOURTH CAUSE OF ACTION 60. Defendants and the Texas EPSDT program do not employ policies or procedures to assure that recipients receive "other necessary health care, diagnostic services, treatment and other measures . • • to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services." 42 u.s.c. § 1396d(r) (5); State Medicaid Manual §§ 5124A; 5330.
FIFTH CAUSE OF ACTION 61. Defendants and the Texas EPSDT program do not assure that case management services are available to all EPSDT recipients as needed. 42 u.s.c. § 1396d(r).
SIXTH CAUSE OF ACTION 62. Defendants and the Texas EPSDT Program do not assure that EPSDT services exist, operate and function uniformly in all political subdivisions of the state. 42 u.s.c. § 1396a(a) {1); 42 C.F.R. § 431.50. THEREFORE, Plaintiffs request that the Court:
Certify the existence of a class of all present and future Texas Medicaid recipients who qualify for EPSDT because they have not reached the age of 21;
17

Case 3:93-cv-00065-RAS Document 1 Filed 09/01/93 Page 18 of 20 PageID #: 6941
Declare that Defendants violate the federal Medicaid Act, regulations and mandatory portions of the State Medicaid Manual by failing to comply with minimum EPSDT standards;
Preliminarily and permanently enjoin Defendants from violating federal EPSDT standards;
Order Defendants to pay to Plaintiffs' attorneys reasonable fees and costs;
Order any other relief that is appropriate.

ATTORNEYS FOR PLAINTIFFS Respectfully submitted,

Susan Finkelstein state Bar No. 07015500 Texas Rural Legal Aid, Inc. 405 N. st. Mary's, Suite 910 San Antonio, Texas 78205 (512) 271-3807 (512) 222-9408 FAX ATTORNEY IN CHARGE

Sharon Reynerson state Bar No. 16794930 East Texas Legal Services 115 s.w. First Street 5th Floor Paris, Texas 75460 (903) 785-8711 (903) 785-5990 FAX

d~ By:

;;::;J,Tit:-r-_)

ATTORNEYS FOR PLAINTIFFS

18

Case 3:93-cv-00065-RAS Document 1 Filed 09/01/93 Page 19 of 20 PageID #: 6942

VERIFICATION

THE STATE OF TEXAS §

COUNTY OF DELTA

§

LINDA FREW, being first duly sworn, deposes and says that she

has read the foregoing Complaint, and that the facts stated therein

which relate to her and her child are true to her own knowledge.

n LINDA FREW

LJVt~ _ BED t

AND SWORN 1993 •

TO

BEFORE

ME

on

this

the

~~~tday

of

lw~~~ ~TARY PUBLIC, STATE OF TEXAS

{\

Case 3:93-cv-00065-RAS Document 1 Filed 09/01/93 Page 20 of 20 PageID #: 6943

VERIFICATION

THE STATE OF TEXAS §

COUNTY OF LAMAR

§

JENEVA FRAZAR, being first duly sworn, deposes and says that

she has read the foregoing Complaint, and that the facts stated

therein which relate to her and her children are true to her own

knowledge.

LL~QM1 -1~

a J&EVA FRAZAR

~,

,[)S.UB.S;C!\l-~~BED 1

AND SWORN 1993.

TO

BEFORE

ME

on

this

the -j/ ,g::tday

of

0

32LWavJM~ ~TARY PUBLIC, STATE OF TEXAS

OFFICIAL SEAL

SUSAN TOLLESON

I IIOTARY PllBUC
My CommS.TEAxlEpiO;eFsTE1X<A>S-! \' (ll. S"'

 
 co-OD -- .• ' -"~ '

C'.;/-~~/a--s~eI,~3o/'j:-93.~~·-~·c-;{-v;,-00065-RAS Document 80 Filed 07/18/94 Page 1 of 2 PageID #: 7855

I..E~ "~lt-Lnr

_U.S. DISTFl!CT COURT

EASTERN D!STRIC T OF TfDV'\S

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

. lUl 18 1994

PARIS DIVISION

LINDA FREW, at al., Plaintiffs,
v.
RICHARD LADD, et al., Defendants.

§

§

§

§

§

3:93 cv 65

§

§

§

§

0 RDER

Defendants have asked the court to clarify the order

certifying the class in the above-entitled and numbered civil

action. On June 16, a class consisting of:

all present and future Texas Medicaid recipients who are under the age of 21, and therefore eligible for EPSDT services, but who have not received the entire range of EPSDT services to which they are entitled, except anyone who has knowingly and voluntarily refused EPSDT services.

Defendants are correct in their assertion that plaintiffs have

the burden of proving Article III standing. However, the footnote

concerning defendants' burden of showing that any particular

individual is not a member of the class based on a knowing and

voluntary refusal of EPSDT services refers to any objections the

defendants may have with respect to the class representatives, who

have already demonstrated that they have not refused such services.

The footnote was not meant to suggest that the defendants must

produce a list of people who have refused EPSDT services.

While the court disagrees that the other elements of Article

III standing were not considered in the class certification order,

defendants' remaining arguments regarding the requirements of

1

Case 3:93-cv-00065-RAS Document 80 Filed 07/18/94 Page 2 of 2 PageID #: 7856

Article III standing will be addressed fully in the court's order

regarding defendants' motion to dismiss, or in the alternative for

summary judgment. Accordingly, it is

ORDERED that the court's order of June 16, 1994, shall be and

it is hereby, clarified as described above.

~I/n~a;m:&Way~ Ju~Qti SIGNED this /Yii~day of July, 1994. ~ 4'

4,Aj_

~

United States District Judge

2

 
 ECD'", -15. -9a. ,,

~Case 3:93-cv-00065-RAS Document 85 Filed 08/10/94 Page 1 of 14 PageID #: 7878

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

PARIS DIVISION

LINDA FREW, at al., Plaintiffs,
v. RICHARD LADD, et al.,
Defendants.

§

§

§

§

§

3:93 cv 65

§

§

§

§

0 R DE R I. Background
Plaintiffs, as next friend of their minor children, have filed suit against Richard Ladd, and others, claiming that defendants do not adequately provide Early and Periodic Screening, Diagnosis, and Training (EPSDT) to young Medicaid recipients, as required by 42 U.S.C. §§ 1396a(a)(43) and 1396d(r). Plaintiffs instituted this
civil action pursuant to 42 u.s.c. § 1983 against defendants,
alleging that the Texas EPSDT program (1) does not have policies and procedures to assure that recipients receive health, dental, vision, and hearing screens; (2) does not meet the annual participation goals that the Secretary of Health and Human Services set for the program; (3) does not effectively inform all eligible persons about the availability of EPSDT; (4) does not have policies or procedures to assure that recipients receive other necessary health care, diagnostic services, treatment, and other measures; (5) does not assure that case management services are available to all EPSDT recipients as needed; and (6) does not assure that the

~5

Case 3:93-cv-00065-RAS Document 85 Filed 08/10/94 Page 2 of 14 PageID #: 7879
EPSDT services exist, operate, and function uniformly in all political subdivisions of the state.
Defendants have filed a motion to dismiss and, in the alternative, a motion for summary judgment.' Defendants proffer several arguments to support their assertion that plaintiffs' claims cannot be maintained under 42 U.S.C. § 1983. First, defendants assert that plaintiffs have not demonstrated that they have been deprived of any right secured by the Constitution or federal law. Defendants further contend that plaintiffs do not possess a private right of action to enforce the participation goals established by the Secretary of Health and Human Services. Finally, defendants maintain that the plaintiffs do not have Article III standing. In addition, several of the defendants submit, that, because they do not have the authority to create state policy, a suit against them for prospective injunctive relief is improper. Finally, defendants move to dismiss the two state agency defendants, since they are allegedly immune from suit pursuant to the Eleventh Amendment of the Constitution.
After thoroughly reviewing the briefs and accompanying evidence submitted by the parties, as well as the relevant case law, it has been determined that the defendants' motion to dismiss is without merit, except as to the state agency defendants. For the reasons discussed in more detail below, the defendants' motion
1 Since the arguments urged in defendants' motion raise purely legal questions that do not require any factual determinations, the motion will be treated as a motion to dismiss for failure to state a claim, and not as a motion for summary judgement.
2

Case 3:93-cv-00065-RAS Document 85 Filed 08/10/94 Page 3 of 14 PageID #: 7880
will be denied in part and granted in part. II. Legal Standard
Pursuant to Federal Rule of Civil Procedure 12(b)(6), the court is authorized to dismiss a claim on the basis of dispositive law. Neitzke v. Williams, 490 U.S. 319, 326 (1989). The motion to dismiss for failure to state a claim is viewed with disfavor, and is rarely granted. Kaiser Aluminum & Chemical Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982), cert. denied, 459 U.S. 1105 (1983). In reviewing a 12(b) (6) motion, the court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them. O'Ouinn v. Manuel, 773 F.2d 605, 608 (5th Cir. 1985). Rule 12(b)(6) does not countenance dismissals based on disbelief of a complaint's factual allegations. Neitzke v. Williams, 490 U.S. at 327. III. Analysis
A. Standing Defendants contend that the complaint should be dismissed because plaintiffs have failed to properly assert Article III standing. The irreducible constitutional minimum of standing contains three elements: 1) plaintiff must have suffered an actual injury; 2) there must be a causal connection between the injury and the defendant's allegedly illegal conduct; and 3) that the injury is likely to be redressed by a favorable judicial determination. Lujan v. Defenders of Wildlife, 112 S.Ct. 2130, 2136 (1992). The Court has explained that in considering a motion to dismiss,
3

Case 3:93-cv-00065-RAS Document 85 Filed 08/10/94 Page 4 of 14 PageID #: 7881

general factual allegations of injury resulting from defendants'

conduct will suffice because, on a motion to dismiss, a court

"presum[es] that general allegations embrace those specific facts

that are necessary to support the claim." Id. at 2137 (quoting

Lujan v. National Wildlife Federation, 497 U.S. 871, 889 (1990)).

In the instant action, plaintiffs have alleged substantial

injury in fact. Plaintiffs maintain that they have not had the

periodic screening, nor have they had other medical treatment such

as follow-up care for ongoing medical problems. Defendants

maintain that plaintiffs have not demonstrated any causal

connection between their injuries and defendants' allegedly illegal

conduct. Although plaintiffs do not state that they would have

used the EPSDT services if they had been aware of them, the court

finds that this is an obvious and inevitable inference based on

plaintiffs' allegations. 2 The injuries complained of in the

instant action are "fairly

• trace[able] to the challenged

action of the defendant [ s] . " Simon v. Eastern Kentucky Welfare

Rights Org., 426 U.S. 26, 41-42 (1976). In an effort to clarify

any question regarding the causal connection, plaintiffs will be

permitted to amend their complaint to indicate that if they had

been aware of the availability of EPSDT services, they would have

used such services. Finally, defendants' argument that the

injuries complained of are not capable of being redressed is not

2 The court acknowledges that one other inference is possible: that plaintiffs knew about the services, but chose not to use them. However, when the class was certified, the court excluded all persons who knowingly and voluntarily refused EPSDT services.
4

Case 3:93-cv-00065-RAS Document 85 Filed 08/10/94 Page 5 of 14 PageID #: 7882
persuasive. If it is ultimately determined that plaintiffs' claims are meritorious, the court will have broad discretion to fashion a remedy redressing such problems. Having reviewed the plaintiffs' complaint for purposes of determining whether plaintiffs have standing, it is so found.
B. Private Right of Action to Enforce Participation Goals Defendants argue that the complaint should be dismissed, because plaintiffs do not have a private cause of action under 42 U.S.C. § 1983 to enforce the EPSDT participation goals. In Maine v. Thiboutot, 448 U.S. 1 (1980), the Supreme Court concluded that private individuals may use § 1983 to enforce rights contained in the Constitution, as well as those rights defined by federal statutes. However, not every violation of a federal statute may be challenged under § 1983. Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 106 (1989). The Supreme Court has established a framework for analyzing questions of enforceability under § 1983. See Wright v. City of Roanoke Redev. & Hous. Auth., 479 U.S. 418 (1987). First, plaintiff has the burden of demonstrating that the statutory provision creates an enforceable right. In deciding whether the statute creates an enforceable right, a court considers three factors: a) whether the statutory provision in question was intended to benefit the plaintiff; b) whether the statute creates a binding obligation on the state government as opposed to merely expressing a congressional preference; and c) whether the interest asserted by the plaintiff is sufficiently specific and definite as
5

Case 3:93-cv-00065-RAS Document 85 Filed 08/10/94 Page 6 of 14 PageID #: 7883
to be judicially enforceable. Id at 430-32. Second, even if a statute creates an enforceable right, a court must still determine if Congress has foreclosed enforcement under § 1983. With regard to this issue, the defendants have a heavy burden to demonstrate "by express provision or other specific evidence from the statute itself" that Congress intended to foreclose private enforcement. Id. at 423.
Using the framework described above, the Supreme Court analyzed a provision of the Medicaid Act, the same statute at issue
in the instant action, in Wilder v. Virginia Hosp. Ass'n, 496 U.S.
498 (1990). In Wilder, the Court held that the Boren Amendment to the Medicaid Act created a right enforceable under § 1983 because: a) the plaintiffs, health care providers, were the intended beneficiaries of the Boren Amendment; b) the Boren Amendment imposes a binding obligation on participating states to adopt reasonable and adequate rates; c) the statute sets out factors which a state must consider in adopting its rates; and d) the administrative scheme established pursuant to the Boren Amendment
is not sufficiently comprehensive to demonstrate a congressional
intent to preclude § 1983 relief.
The Court again considered the question of whether a federal statute could be enforced in a§ 1983 suit. In Suter v. Artist M., __ U.S. __, 112 S.Ct. 1360 (1992), the Court held that the plaintiffs could not bring a § 1983 action to enforce a provision of the Adoption Assistance and Child Welfare Act of 1980 requiring the state to use reasonable efforts to prevent removal from the
6

Case 3:93-cv-00065-RAS Document 85 Filed 08/10/94 Page 7 of 14 PageID #: 7884

home, and to return a child to his or her home. 42 U.S.C. §§ 620-

628, 670-679a.

Rather than analyze the question using the framework described

above, the Suter opinion referred to the decision in Pennhurst

State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981), and asked

whether the statute unambiguously confers an enforceable right upon

the Act's beneficiaries. rd. at

, 112 s.ct. at 1370. In

determining whether a statute unambiguously confers an enforceable

right, the Court looked at the whole legislative enactment in

detail. Specifically, the Court found that there was no private

right to enforce the statute because 1) it did not provide guidance

as to how "reasonable efforts" are to be measured; 2) the method of

compliance was left largely up to the state; and 3) the statute has

other enforcement mechanisms, and, therefore, the absence of a

private remedy under § 1983 did not make the "reasonable efforts"

clause ineffectual. Id. at ___, 112 s.ct. at 1368-69.

After Suter, courts have been uncertain as to the continuing

viability of the Wilder analysis. However, the Supreme Court

discussed and distinguished Wilder in the Suter opinion. Id. The

United States Court of Appeals expressly has refrained from

deciding what effect, if any, Suter had on Wilder. Resident

Council of Allen Parkway Village v. HUD, 980 F.2d 1043, 1052 (5th

Cir. 1993) ("In this case, we need not decide whether Suter

'effected a sea change in the Court's approach to section

1983. '"(quoting Stowell v. Ives. 976 F.2d 65, 68 (1st Cir. 1992)).

Hence, Wilder, and the analytical framework employed in that

7

Case 3:93-cv-00065-RAS Document 85 Filed 08/10/94 Page 8 of 14 PageID #: 7885

decision, along with the modifications contained in Suter, guide

this court's analysis. See Arkansas Medical Soc. , Inc. v.

Reynolds, 6 F.3d 519, 525 (8th Cir. 1993)("[W]e choose to

synthesize the two cases by proceeding with the two-step Golden

State analysis used in Wilder, bearing in mind the additional

considerations mandated by Suter.").

In turning to an analysis of the EPSDT provision the court is

guided by the Supreme Court's analysis of the Boren Amendment in

Wilder, and, as well, the additional concerns raised in Suter.

Initially, it is determined that the plaintiffs are the intended

beneficiaries of the statutory provision. The plain language of

the statute demonstrates that Congress was trying to increase

preventative health care services for minor Medicaid recipients.

See 42 U.S.C. § 1396a(43)(A)-(C).

The second issue for consideration is whether the statute

creates a binding obligation on the states as opposed to expressing

congressional preference.

With regard to this question, the

Court's finding in Wilder provides significant guidance since it,

too, analyzed a section of the Medicaid Act. The Court held that

because language of the statute is mandatory rather than precatory,

the statute created a binding obligation upon the state. Wilder,

496 U.S. at 512. The same mandatory language introduces the EPSDT

provision of the statute: a state plan must provide for informing

all eligible minors of the availability of the EPSDT services,

provide for or arrange for the provision of such services, and

arrange for corrective treatment. In addition, the statute

8

Case 3:93-cv-00065-RAS Document 85 Filed 08/10/94 Page 9 of 14 PageID #: 7886
requires the state to report participation goals to the Secretary. 42 U.S.C. § 1396a(43) (A)-(D). Hence, it is apparent that the statute creates a binding obligation upon the state.
The third question, whether the interest asserted is sufficiently specific and definite as to be judicially enforceable, is also answered affirmatively. While it is true that the EPSDT provision gives the state substantial flexibility in determining how to provide the services required under federal law, the statute also provides substantial guidance to the state. In fact, the statute goes into great detail regarding the timing of specific services that must be provided. See 42 U.S.C. 1396d(r). The statute also identifies, in detail, certain information which the state must disclose in an annual report to the Secretary. See 42
u.s.c. § 1396a(43) (D). The EPSDT provision of the Medicaid Act is,
if anything, more specific and definite than other sections, such as the Boren Amendment which talks about "reasonable access," but does not define the term. In addition, the EPSDT provision of the Medicaid Act, unlike the statute reviewed in Suter, provides substantial guidance to the state. A court is capable of considering the provisions and requirements of the statute and comparing that to the state's actual performance of such duties. Hence, it is found that the provision is sufficiently specific and definite as to be judicially enforceable; it is further determined that the statute, while allowing some flexibility, provides significant guidance to the state. Plaintiffs have thus satisfied the burden of demonstrating that: 1) they are the intended
9

Case 3:93-cv-00065-RAS Document 85 Filed 08/10/94 Page 10 of 14 PageID #: 7887
beneficiaries of the statute; 2) that the statute creates a binding obligation on the state; and 3) the interest asserted is sufficiently specific so as to be judicially enforceable. Accordingly, it is determined that the EPSDT provision creates an enforceable right.
Having determined that the EPSDT provision of the Medicaid statute creates an enforceable right, the second part of the twostep analysis must be considered. Hence, it must be determined whether Congress has foreclosed enforcement under § 1983. Defendants argue that the comprehensive nature of the administrative regulation forecloses plaintiffs' private remedy in the present action. See Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1 (1981). As the Court explained in Wilder, a congressional remedial scheme has only been found sufficiently comprehensive to foreclose a private remedy under § 1983 in two instances. In each of those cases, the statute contained a comprehensive enforcement scheme. Wilder, 498 U.S. at 521. The Wilder Court held that because the Medicaid Act contains no provision for private judicial or administrative enforcement, Congress had not foreclosed § 1983 enforcement in the Medicaid statute. Wilder, 498 U.S. at 521. In deciding whether Congress has foreclosed a private remedy under § 1983, this court is bound by Wilder. See Arkansas Medical Soc. Inc, 6 F.3d at 528. 3 Having
3 The Suter Court did not review the traditional question of congressional foreclosure; however, it also considered the issue of enforcement mechanisms, asking whether the absence of a private remedy under § 1983 would make the provision ineffectual. The Court explained that because the Secretary has the authority to
10

Case 3:93-cv-00065-RAS Document 85 Filed 08/10/94 Page 11 of 14 PageID #: 7888
determined that the EPSDT provisions of the Medicaid statute both create an enforceable right, and that such right has not been foreclosed by Congress, defendants' motion to dismiss, or in the alternative for summary judgment, will be denied with regard to this issue.
C. Deprivation of a Right Secured by Federal Law Defendants contend that the rights that plaintiffs' claim they possess are not codified in, nor secured by, federal law, and therefore cannot support a § 1983 claim. Defendants' primary argument is that plaintiffs' complaint misstates defendants' obligations under federal law. In several counts of the second amended complaint, plaintiffs allege that defendants have failed to assure proper delivery of services. Defendants correctly note that the statute itself provides not that defendants assure that the services are used, but rather that such services are provided. Plaintiff is correct, however, in responding that defendants' argument is based on a hypertechnical reading of the statute. The language of the statute is mandatory: A State plan for medical assistance must provide for informing all eligible persons of the availability of treatment; provide or arrange for the provision of such services when they are requested; arrange for corrective treatment; and report certain information to the Secretary on an
reduce or eliminate payments to the state on a finding that the state's plan does not comply with the federal law, the absence of a private remedy would not render the statute ineffectual. Suter, 112 S.Ct. at 1368. Although a similar analysis may apply in the instant action, this court is bound by the determination in Wilder, which has not been overruled, that the Medicaid Act may be enforced under § 1983.
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Case 3:93-cv-00065-RAS Document 85 Filed 08/10/94 Page 12 of 14 PageID #: 7889
annual basis. 42 U.S.C. § 1396a(a)(43). Defendants' argument that the use of the word "assure" rather
than "provide" renders the claims insufficient is unpersuasive. Despite plaintiffs' poor choice of words, plaintiff complains that Texas has not complied with the requirements of the statute. Failure to comply with a federal statute is proper grounds for a suit under 42 U.S.C. § 1983. Accordingly, defendants' motion to dismiss, or in the alternative for summary judgement, will be denied.
D. State Agency Defendants Defendants move to dismiss the two state agency defendants, the Texas Health and Human Services Commission and the Texas Department of Health, arguing that such agencies are immune from suit under the Eleventh Amendment to the Constitution. Edelman v. Jordan, 415 U.S. 651 (1974); Ex Parte Young, 209 U.S. 123 (1908). Defendants' argument regarding these defendants is meritorious, and plaintiffs do not object to such dismissal. Accordingly, the motion to dismiss the two state agency defendants will be granted. D. Official Capacity Defendants Defendants argue that defendants Penfield, Cook, and Koop, sued in their official capacities only, should be dismissed. Ex Parte Young, 209 U.S. 123 (1908), permits suits for prospective injunctive relief against state employees in their "official capacity". Defendants argue that these three defendants are not directly responsible for state policy or custom. While this issue is important when attempting to determine whether to attribute
12

Case 3:93-cv-00065-RAS Document 85 Filed 08/10/94 Page 13 of 14 PageID #: 7890
liability for an individual's actions to a municipality, it is essentially irrelevant in an official capacity suit for prospective injunctive relief. See, Pembaur v. City of Cincinnati, 475 U.S. 469 (1986); City of St. Louis v. Prapotnik, 485 U.S. 112 (1988). The cases cited by the defendants do not support their contention that suit against defendants Cook, Penfield, and Koop are improper. 4 Accordingly, the motion to dismiss the official capacity defendants will be denied. IV. Conclusion
After a thorough review of the pleadings, the applicable statutory law, and the controlling case law, it has been determined that defendants' motion to dismiss is unpersuasive, except as to the state agency defendants. Plaintiffs may use § 1983 to enforce the EPSDT provisions of the Medicaid Act. They contend that the state has not, and is not, performing its duties under federal law in an adequate manner. As a result, plaintiffs maintain that they have not been informed of the availability of the EPSDT services, and have not utilized such services. Such complaint states a claim for which relief may be granted. However, the state agency defendants may not be sued since they are immune pursuant to the Eleventh Amendment. Accordingly, it is
ORDERED that defendants' motion to dismiss shall be, and it is hereby, GRANTED, as to the state agency defendants. It is further
ORDERED that defendants' motion to dismiss shall be, and it is
4 In fact, the cases cited by the defendants do not even stand for the propositions asserted by the defendants; such misrepresentations hinder, rather than help defendants' argument.
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Case 3:93-cv-00065-RAS Document 85 Filed 08/10/94 Page 14 of 14 PageID #: 7891 hereby, DISMISSED in all other respects.
SIGNED this~ day of August, 1994.
~-~~ United States District Judge
14

 
 Case 3:93-cv-00065-RAS Document 93 Filed 10/19/94 Page 1 of 40 PageID #: 7932
iendemd !or F!\\ng
on SEP 0 2 1994

LINDA FREW, as next friend of

§

her minor child, CARLA FREW;

§

MARIA AYALA, as next friend of

§

her minor children, CHRISTOPHER §

RAMIREZ, LEONARD JIMENEZ and

§

JOSEPH VELIZ; MARTHA DOE,

§

as next friend of her minor

§

children, ERIC DOE, ESMERALDA

§

DOE and CARLOS DOE; MARY FISHER, §

as next friend of her minor child, §

TYRONE T. EDWARDS; MARY JANE

§

GARZA, as next friend of her

§

minor children, HILARY GARZA

§

and SARAH RENEA GARZA; GLORIA §

PADILLA, as next friend of her

§

minor children, PEDRO PADILLA,

§

JR., MARIA GLORIA PADILLA, LAREDO §

TEX PADILLA, MICHAEL PADILLA and §

EMILIANO PADILLA

§

Plaintiffs,

§

v.

§

§

RICHARD LADD, Commissioner of

§

the Texas Health and Human

§

Services Commission, DAVID SMITH, §

Commissioner of the Texas

§

Department of Health, DEANN

§

FRIEDHOLM, State Medicaid

§

Director of the Texas Health and §

Human Services Commission,

§

BRIDGET COOK, SUSAN PENFIELD, M.D.§

and BEVERLY KOOPS, M.D. ,

§

employees of the Texas Department §

of Health, all in their official §

capacities,

§

Defendants.

§

CIVIL ACTION NO. 3:93cv65

PLAINTIFFS' THIRD AMENDED COMPLAINT INTRODUCTION
1. Despite a Congressional mandate, Defendants do not provide adequate health care services to indigent Texas Medicaid recipients who have not reached the age of 21. Defendants do not
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Case 3:93-cv-00065-RAS Document 93 Filed 10/19/94 Page 2 of 40 PageID #: 7933
adequately provide Early, Periodic, Screening, Diagnosis and Treatment (EPSDT) services to young Medicaid recipients, as required by 42 U.s.c. §§ 1396a(a) (43); 1396d(r).
2. EPSDT is intended to provide comprehensive, timely and cost effective health care services to indigent youth. By failing to meet EPSDT requirements, Defendants leave some of the most vulnerable children in Texas without adequate health care services and at risk for increasingly severe and costly health problems.
3. Plaintiffs challenge Defendants' policies and procedures, which deprive Plaintiffs under color of state law of rights, privileges and immunities guaranteed by 42 U.S.C. §§ 1396a(a) (43); 1396d(r), which are sufficiently clear to allow enforcement by this court. Plaintiffs seek declaratory and injunctive relief, 28 U.S.C. §§ 2201, 2202; 42 U.S.C. § 1983; F.R.Civ.P. 57, 65; certification of this case as a class, F.R.Civ.P. 23, attorney's fees and costs. 28 u.s.c. § 1920; 42 u.s.c. § 1988.
JURISDICTION 4. This Court has jurisdiction in accordance with the provisions of 28 U.S.C. §§ 1331, 1343(3) and (4).
VENUE 5. Venue is proper because a substantial part of the events or omissions that form the basis of this claim occurred in this judicial district. 28 U.S.C. § 1391(b).
PARTIES 6. Plaintiff Linda Frew and her daughter reside at 650 N.W. 1st Street, Cooper, Delta County, Texas 75432. Linda Frew appears
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Case 3:93-cv-00065-RAS Document 93 Filed 10/19/94 Page 3 of 40 PageID #: 7934
in this case as next friend of her minor daughter, Carla Frew (born June 28 , 19 80 ) .
7. Plaintiff Maria Ayala and her children reside at 220 South 25th Street, Apartment #42, Albores Courts, Edinburg, Hidalgo County, Texas 78539. Maria Ayala appears in this case on behalf of her three minor children, Christopher Ramirez (formerly Arizola) (born September 12, 1980), Leonard Jimenez (born July 4, 1987) and Joseph Veliz (born December 16, 1988).
8. Plaintiff Martha Doe and her children reside in El Cenizo, Webb County, Texas. Martha Doe appears in this case on behalf of three of her six children: Eric Doe (born October 17, 1977), Esmeralda Doe (born October 15, 1979) and Carlos Doe (born July 17, 1981). They file today a Motion to request the Court's permission to appear in this case under the pseudonym of Doe.
9. Plaintiff Mary Lucille Fisher and her child reside at 215 George Wright Homes, Paris, Lamar County, Texas 75460. Mary Fisher appears in this case on behalf of her minor son, Tyrone T. Edwards (born November 21, 1979).
10. Plaintiff Mary Jane Garza and her children reside at P.O. Box 187, 501 North Elm Street, Earth, Lamb County, Texas 79031. Mary Jane Garza appears in this case on behalf of two of her six minor children: Hilary Garza (born September 22, 1987) and Sarah Renea Garza (born February 10, 1990).
11. Plaintiff Gloria Padilla and her children reside at 446 Cadena Street, El Cenizo, Webb County, Texas 78043. Gloria Padilla appears in this case as next friend of her minor children, Pedro
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Case 3:93-cv-00065-RAS Document 93 Filed 10/19/94 Page 4 of 40 PageID #: 7935

Padilla, Jr. (born November 23, 1976), Maria Gloria Padilla (born

September 11, 1980), Laredo Tex Padilla (born July 26, 1985),

Michael Padilla (born June 19, 1986) and Emiliano Padilla (born

October 3, 1987).

12. Defendant Richard Ladd is the Commissioner of the Texas

Health and Human Services Commission. He is sued in his official

capacity only. He has been served with process. His address is

Texas Health and Human Services Commission, 4807 Spicewood Springs

Road, Building 4, Austin, Texas 78759. The Texas Health and Human

Services Commission is the "single state agency," 42 U.S.C. §

1396a(a) (5), that administers or supervises the administration of

the Texas Medicaid program, including EPSDT. As Commissioner,

Defendant Ladd is responsible for the policies and administration

of the Texas Health and Human Services Commission.

13. Defendant David Smith is the Commissioner of the Texas

Department of Health. He is sued in his official capacity only.

He has been served with process. His address is Texas Department

of Health, 1100 West 49th Street, Austin, Texas 78756. On

September 1, 1993, the administration of health and human services

programs in Texas was reorganized.

As a result of the

reorganization, the Department of Health is now responsible for

proposing policies for the Texas Medicaid program, including EPSDT.

The Department of Health also administers the Texas Medicaid

program, including EPSDT. As Commissioner, Defendant Smith is

responsible for the policies and administration of the Texas

Department of Health.

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Case 3:93-cv-00065-RAS Document 93 Filed 10/19/94 Page 5 of 40 PageID #: 7936
14. Defendant DeAnn Friedholm is the State Medicaid Director of the Texas Health and Human Services Commission. She is sued in her official capacity only. She has been served with process. Her address is Texas Health and Human Services Commission, 4807 Spicewood Springs Road, Building 4, Austin, Texas 78759. As State Medicaid Director, Defendant Friedholm has authority over the policies of the Texas Medicaid program, including EPSDT.
15. Defendants Bridget Cook, Susan Penfield, M.D. and Beverly Koops, M.D., are employees of the Texas Department of Health. They are sued in their official capacity only. They have been served with process. Their address is Texas Department of Health, 1100 West 49th Street, Austin, Texas 78756. Defendants Bridget Cook, susan Penfield, M.D. and Beverly Koops, M.D. are responsible for policies and the administration of the EPSDT program.
CLASS CERTIFICATION 16. Plaintiffs bring this action on behalf of themselves and a class of those who are similarly situated. The class consists of all present and future Texas Medicaid recipients who are under the age of 21 and therefore are eligible for EPSDT services, but who have not received the entire range of EPSDT services to which they are entitled. F.R. Civ. P. 23. According to official reports of the Texas EPSDT program, about 1,200,000 Texans were eligible for EPSDT services in fiscal year 1992. In fiscal year 1993, the
number increased to 1, 33o, 465. The number of children who are
eligible for EPSDT services should be even larger in the coming years. But, in fiscal year 1993, only 389,393 EPSDT eligible
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Case 3:93-cv-00065-RAS Document 93 Filed 10/19/94 Page 6 of 40 PageID #: 7937
Texans {29.27%) received even a medical screen. So, 70.73%, or 941,072 EPSDT eligible Texas Medicaid recipients, did not even receive a medical screen. The medical screen is a basic component of EPSDT services. Even fewer EPSDT eligible Texans received the other components of EPSDT services.
17. A class action is appropriate because 1) the class is so numerous that joinder of all members is impracticable, 2) this case involves questions of law or fact that are common to the class, 3) Plaintiffs' claims are typical of the claims of the class, and 4) Plaintiffs will fairly and adequately protect the interests of the class. F.R. Civ. P. 23{a).
18. Further, this case should be maintained as a class action because Defendants have acted or refused to act on grounds generally applicable to the class, so final injunctive and declaratory relief is appropriate with respect to the class. F.R. civ. P. 23(b) (2).
FACTS The Plaintiffs Linda Frew and her Daughter 19. Linda Frew is a single mother. She has recently completed chemotherapy and radiation treatment for lung cancer. She has been hospitalized for mental health problems. Two of her three sons died at a young age. One died at age 21 of a rare kidney disorder. The second died at age 17 of a rare form of abdominal cancer.
6

Case 3:93-cv-00065-RAS Document 93 Filed 10/19/94 Page 7 of 40 PageID #: 7938
20. Linda and her daughter, Carla (born June 28, 1980), live together in public housing in Cooper, Delta County, Texas. They do not have a car but they have obtained telephone service since this lawsuit was filed.
21. Delta County is a small, rural county. The County has few health care resources.
22. carla has been a Medicaid recipient continuously since birth. During that time, she should have received 19 health screens. Carla has not received the full number of health screens indicated by the EPSDT periodicity schedule for that time period.
23. Carla has been in special services classes in school. 24. Until September 1, 1993, the Texas Department of Human Services was the agency that had responsibility for the EPSDT program. 25. From February 23, 1987 to November 5, 1990, Carla was in the temporary custody of the Texas Department of Human Services. From February 23, 1987 to February 27, 1989, she was in foster care in Hopkins and Lamar County, Texas. Carla remained in the Department of Human Services' custody for 21 months after she returned to live with her mother, Linda. Linda now has custody of Carla. 26. While the Department of Human Services had custody of Carla, the Department supervised Carla's health care. For example, Defendant's staff took Carla to Dallas to see a specialist because her triglycerides were so high. They also took her for several psychological and neurological evaluations. Of course, mental
7

Case 3:93-cv-00065-RAS Document 93 Filed 10/19/94 Page 8 of 40 PageID #: 7939

health problems are common among children who live in foster care.

Carla's mental health diagnoses ranged from dysthymia (a mood

disorder) to severe right brain hemisphere dysfunction and possible

childhood schizophrenia. various treatment plans were recommended.

Further, while she was in the Department's custody, Carla was

grossly obese.

27. After Carla returned to live with her mother and the

Department of Human Services ceased to have conservatorship over

her, DHS no longer assisted with Carla's health care.

Until

immediately before this lawsuit was filed, Carla had not had any

medical screens and had only been to the dentist once since being

returned to her mother's custody on November 5, 1990. On March 9,

1993 Carla was still grossly obese at 5'4", 232 1/2 lbs., but she

had not received any nutritional counseling or treatment beyond

advice to cut back on her caloric intake. Her triglycerides and

cholesterol had not been assessed. There had been no follow up on

this issue until after this lawsuit was filed. She has since been

sent to counseling for her obesity and has managed to lose 7 pounds

and reduce her lipid levels, although further reductions are

needed.

28. In January, 1994, Carla had to stop going to counselling.

The Medicaid transportation program could not transport Carla

because at her age, an adult escort was required. Linda could not

accompany Carla and no other adult was available. This problem was

not resolved for several months.

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Case 3:93-cv-00065-RAS Document 93 Filed 10/19/94 Page 9 of 40 PageID #: 7940
29. Some of Carla's mental health problems are unevaluated and continue to go untreated. Carla's lack of current mental health services is particularly egregious because of her past diagnoses of mental health problems and the many stresses that Carla faces.
30. Before this lawsuit was filed, Defendants had not assisted Carla Frew to receive the EPSDT services to which she is entitled.
31. Before this lawsuit was filed, Linda and Carla Frew had virtually no knowledge about EPSDT. Defendants had not effectively informed them about program services. Further, Defendants had not assisted Carla to get timely screens or follow up care. This failure is particularly problematic because the Department of Human Services (Defendant Department of Health's predecessor in the administration of EPSDT) has first hand knowledge of Carla's health care needs.
32. If Defendants had properly informed and otherwise assisted Linda and Carla Frew, Carla would have more fully used EPSDT services.
33. Since the filing of this lawsuit, Defendants have assigned a case manager to assist Linda and Carla to properly access EPSDT services. As a result, Carla's receipt of screens and services has improved, as has Linda and carla's understanding of EPSDT and how it works. But, Carla still requires further case management and other assistance to meet her unpredictable future health care needs and further explanations of EPSDT. Further,
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Case 3:93-cv-00065-RAS Document 93 Filed 10/19/94 Page 10 of 40 PageID #: 7941
Carla still requires evaluation by a neurologist and a psychiatrist.
Maria Ayala and her Children 34. Maria Ayala is a single mother. Maria, her three children, her adult sister, and her brother-in-law, live in public housing in Edinburg, Hidalgo County, Texas. 35. Maria Ayala's three children, Christopher Ramirez (formerly Arizola) (born September 12, 1980), Leonard Jimenez (born July 4, 1987) and Joseph Veliz (born December 16, 1988) have received Medicaid continuously since their births. 36. Joseph was born two months premature. He regularly has convulsions and high fevers. Sometimes he has convulsions as often as three timesjmonth. His mother frequently has to take him to the emergency room at the Edinburg Hospital for treatment. 37. Babies who are born prematurely are at increased risk of ill health. In spite of this increased risk, Joseph has had few, if any, EPSDT medical screens. 38. Christopher suffers from respiratory problems such as chronic bronchitis and pharyngitis. 39. Before the filing of this lawsuit, Maria Ayala only took her children to the doctor if they were sick. They have not had all of the medical screens that are prescribed by the EPSDT periodicity schedule. 40. The Ayala children have not had all of the dental screens that are prescribed by the EPSDT periodicity schedule. Before this
10

Case 3:93-cv-00065-RAS Document 93 Filed 10/19/94 Page 11 of 40 PageID #: 7942
lawsuit was filed, Christopher and Joseph had been to the dentist because they had cavities. Leonard had never been to the dentist.
41. Defendants have not assisted Maria Ayala's children to receive the EPSDT services to which they are entitled.
42. Before this lawsuit was filed, Maria Ayala and her children had virtually no knowledge about EPSDT. Defendants had not effectively informed them about program services. Although Maria Ayala was told that she would receive a booklet about Medicaid benefits and EPSDT, she never received anything. Further, Defendants have not assisted the Ayala children to get timely screens or follow up care.
43. Before this lawsuit was filed, Defendants had not provided or arranged for case management services for the Ayala family, in spite of Joseph's increased health risks because of his premature birth and the many screens that the children have missed.
44. If Defendants had properly informed and otherwise assisted Maria Ayala and her children, the children would have more fully used EPSDT services.
45. Since the filing of this lawsuit, Defendants have assigned a case manager to assist Maria and her children to properly access EPSDT services. As a result, the children's receipt of screens and services has improved, as has their understanding of EPSDT and how it works. But, the children still require further case management assistance to meet their unpredictable future health care needs and further explanations of EPSDT.
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Case 3:93-cv-00065-RAS Document 93 Filed 10/19/94 Page 12 of 40 PageID #: 7943

Martha Doe and her Children

46. Martha Doe is a recently divorced, single mother. She

resides with five of her six children. Her oldest daughter has

moved away from home.

47. Three of Martha Doe's children are eligible for Medicaid:

Eric Doe (born October 17, 1977), Esmeralda Doe (born October 15,

1979) and Carlos Doe (born July 17, 1981).

48. The Doe Plaintiffs have requested that the Court allow

them to appear under the pseudonym of Doe instead of under their

true last name. Members of the Doe family are in this country

without legal status or the permission of the Immigration and

Naturalization Service.

They fear adverse action by the

Immigration and Naturalization Service or others if their identity

is revealed during the course of this litigation.

49. Esmeralda has been a Medicaid recipient continuously

since November, 1988. Eric and Carlos have been Medicaid

recipients continuously since June, 1991. They had been eligible

intermittently before those dates.

50. Martha Doe and her children live in El Cenizo, Webb

County, Texas. El Cenizo is a small colonia about 20 miles south

of Laredo, Webb County, on the Rio Grande River. Although

conditions have improved somewhat in recent years, they are still

deplorable. Some houses have no indoor plumbing. Others have no

electricity. The streets are full of deep ruts.

51. The Doe house is substandard. Until recently, the

windows did not have glass or screens. The back door swings open

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Case 3:93-cv-00065-RAS Document 93 Filed 10/19/94 Page 13 of 40 PageID #: 7944
when the wind blows hard. Grit and dust blow in when the door opens. It is cold inside when the weather is cold; it is very hot when the weather is hot, as is often true in Webb County.
52. Residents of colonias, such as the Doe children, are at increased risk of health problems because of their substandard living conditions, pervasive lack of education and isolation from the mainstream of society, including health care providers.
53. Martha Doe and her children do not have a telephone. She is a monolingual Spanish speaker; she does not speak English. It is difficult for her to communicate with some health care professionals or to schedule appointments for her children.
54. Martha Doe does not have a car. Transportation problems make it difficult for them to schedule health care appointments or to travel to Laredo for health care. There are no health care providers in El Cenizo.
55. A van runs from El Cenizo to Laredo. But, the van does not provide transportation that is in any way convenient for those who need to travel from El Cenizo to the areas where doctor have their offices in Laredo. It only makes 6 trips/day. The van does not run at night. So residents of El Cenizo who do not have a car, like the Does, have no way to leave El Cenizo at night. Also, it takes a very long time to get to a doctor by using the van. Normally, the drive between El Cenizo and Laredo takes about 20-30 minutes. But, on the van the same trip takes hours because of the waiting time between the van and other buses.
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Case 3:93-cv-00065-RAS Document 93 Filed 10/19/94 Page 14 of 40 PageID #: 7945
56. Sometimes Martha Doe has to call an ambulance to transport her children to Laredo for care because she does not have a car. For example, in December, 1993, Esmeralda got a fever and convulsions in the middle of the night. Martha Doe was frightened and called 911 for emergency assistance. A helicopter ambulance took Esmeralda to the hospital in Laredo. After testing, she was diagnosed as having an intestinal virus. The doctor in the emergency room was very angry with Martha Doe for bringing her daughter to the hospital in the air ambulance.
57. A similar event occurred in September, 1992. Eric was sick and had a fever. Since the family had no other form of transportation, they took him by ambulance to the hospital in Laredo. The hospital staff was angry that the family had used the services of an ambulance. They refused to order an ambulance so that the family could return home to El Cenizo (20 miles). The family had to walk home on Highway 83, even though Eric was still very sick. They walked most of the way home. The only reason that they did not have to walk the whole distance was a police officer gave them a ride.
58. Esmeralda suffered from meningitis when she was an infant. Since then, she has suffered from a neurological deficit and is mentally retarded. She received an IQ score of 0 (-6.67 standard deviations) on the Leiter International Performance Scale in 1993. Esmeralda cannot communicate with others or complete even simple tasks - such as brushing her teeth unassisted - that would be expected of a much younger child. Further, her conduct can be
14

Case 3:93-cv-00065-RAS Document 93 Filed 10/19/94 Page 15 of 40 PageID #: 7946
disruptive and distressing for her family. For example, Esmeralda sometimes removes all of her clothes in public places.
59. Esmeralda receives special education services at school, including an hour of speech therapy each week when school is in session. She does not receive therapy when school is not in session. Even though speech therapy is a service that EPSDT programs must cover, Defendants have not offered to provide or arrange for speech therapy for Esmeralda during the times when school is closed.
60. Esmeralda has had very few - if any - EPSDT medical screens. She has seen a doctor only rarely.
61. None of the Doe children has had regular EPSDT medical screens. Martha Doe only takes them to the doctor if they are sick.
62. The Doe children have each been to the dentist twice. 63. The dentist recommended braces for Esmeralda. But, Martha Doe has not been able to find a local orthodontist who accepts Medicaid. The closest orthodontist who accepts Medicaid that she has been able to find is in Corpus Christi, which is more than a two and a half hour drive from El Cenizo. Martha Doe has not been able to take Esmeralda to Corpus Christi because she has no way to get there. Defendants have not provided or arranged for the orthodontic evaluation and care that Esmeralda needs, either by finding an orthodontist in Laredo or by assisting with transportation so that she can get care in another city.
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Case 3:93-cv-00065-RAS Document 93 Filed 10/19/94 Page 16 of 40 PageID #: 7947
64. Further, Carlos had a false tooth in his mouth. It fell out when he was playing football at school. No one could find it. Martha Doe asked the dentist to replace the false tooth. The dentist said that Medicaid would not cover the cost of a replacement tooth. Carlos has gone without the false tooth that he needs because the family could not afford to replace it. But, the EPSDT program must provide all treatment that is necessary and cannot decline to cover the costs of Carlos' replacement tooth. Defendants have not provided or arranged for the dental care that Carlos needs.
65. Defendants have not assisted Martha Doe's children to receive the EPSDT benefits to which they are entitled.
66. Martha Doe and her children have virtually no knowledge about EPSDT. Defendants have not effectively informed them about program benefits. Further, Defendants have not assisted the Doe children to get timely screens or follow up care.
67. Defendants have not provided or arranged for case management services for the Doe family, even though the children have missed many screens, live in a destitute colonia and in spite of Esmeralda's special needs.
Mary Fisher and her Son 68. Mary Lucille Fisher is a single mother. She receives SSI disability benefits for herself and for her son, Tyrone Edwards. On March 2, 1994, the Social Security Administration found that Tyrone was disabled because of his growth delay and learning disabilities (effective March 1, 1992).
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Case 3:93-cv-00065-RAS Document 93 Filed 10/19/94 Page 17 of 40 PageID #: 7948
69. Mary and her son, Tyrone T. Edwards, (born November 21, 1979) live together in public housing in Paris, Lamar County, Texas. They were able to purchase a car when Mary received her lump sum payment from the social security administration in March, 1993. They recently obtained a telephone.
70. Tyrone has been on Medicaid since birth. He has been on Medicaid in Texas since approximately 1985. He has not received the full number of health screens indicated by the EPSDT periodicity schedule for that time period. In fact, he did not begin to receive regular medical treatment until 1992 when his mother was accepted as a legal services client.
71. Before this lawsuit was filed, Defendants had not effectively informed Mary and Tyrone about the EPSDT program. Mary first found out about the services available under the EPSDT program from East Texas Legal Services. Furthermore, Tyrone's Medicaid eligibility was wrongfully terminated in 1993. When his eligibility was reinstated in 1993, again, no one informed Mary about the EPSDT program.
72. Tyrone is now 14 years old and is very small for his age (4' 2 11 , 72 lbs. on October 21, 1993 {1 month prior to his 14th birthday}). He was not evaluated for his growth deficiency until January 28, 1992, after his mother was advised by East Texas Legal Services that this was an available medical service under the EPSDT program. Tyrone was 49 1/2" tall and weighed 66 1/2 pounds. In October, 1993, Dr. Clark, a pediatrician checked Tyrone's growth deficiency and made a referral to Dr. Marx, an endocrinologist in
17

Case 3:93-cv-00065-RAS Document 93 Filed 10/19/94 Page 18 of 40 PageID #: 7949
Dallas at Children's Medical Center. Mary was advised to pick up Tyrone's x-rays and take them to the specialist in Dallas. It was two years after the initial evaluation until Tyrone saw a specialist for his growth deficiency.
73. An East Texas Legal Services attorney tried to assist Mary in scheduling an appointment with the specialist. After several unsuccessful attempts we suggested that Mary call the DHS scheduling/transportation assistance number for Paris, Texas, which she did. She was told by the medical transportation worker she would have to schedule the appointment herself, then call them back for transportation assistance or she could call the 800 number but the medical transportation worker did not give Mary the 800 number. Mary attempted to call the 800 number for assistance. The first try she reached an answering machine which asked her to leave a telephone number. She could not leave a number because she was calling from a pay phone and she had no home phone. Her next three attempts she got a busy signal. She called again the next day and the first three tries the line was busy. She finally reached someone, was put on hold for 20 minutes at a pay phone, then told they could not help her schedule the appointment but could pay someone to take her to the appointment in Dallas whenever it was set up. They suggested that she call her doctor to schedule the appointment.
74. Tyrone has experienced emotional and behavioral problems as a result of his small stature. He was evaluated on August 8, 1993, by Dr. Randy Crittenden and diagnosed as: (1) mildly mentally
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Case 3:93-cv-00065-RAS Document 93 Filed 10/19/94 Page 19 of 40 PageID #: 7950

retarded; (2) anxiety disorder secondary to feelings of low self-

esteem; and (3) learning difficulties secondary to mental

retardation. No follow up counseling has been provided. He still

has not been evaluated by a psychologist since he was diagnosed

with attention deficit disorder that required medication.

75. Tyrone has been diagnosed as learning disabled. He has

been in special education and modified classes during most of the

years he has been in school. He has now been removed from special

education but he is failing most of his subjects.

76. Tyrone saw a dentist in 1988 because he had 5 decayed

teeth - 2 lower permanent molars that needed crowns and 3 primary

molars. Dr. Green saw him on two occasions. Other appointments

were scheduled but Mary was not able to keep them, primarily

because of lack of transportation. No one followed up on the

missed appointments.

Two of the appointments were canceled

because of questions of coverage. A dental appointment for Tyrone

was canceled on October 3, 1988, because there was a question about

his eligibility for Medicaid.

77. Tyrone's next dental visit was not until November 9, 1991

with Dr. Griffin. On that and two other visits, the crowns were

finally completed, three years after it was determined that Tyrone

needed them. Dr. Griffin told Mary that Tyrone did not need follow

up care unless he developed other dental problems. Mary did not

know that she could and should take her son to the dentist for

check-ups every 6 months until informed by East Texas Legal

Services.

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Case 3:93-cv-00065-RAS Document 93 Filed 10/19/94 Page 20 of 40 PageID #: 7951
78. Dental cavities were noted at Tyrone's dental examination in March, 1994. Tyrone had to cancel his appointment to have his teeth cleaned in April, 1994 because his April Medicaid card had not arrived.
79. Mary has encountered difficulties receiving medically necessary services for Tyrone on three occasions because of the grids on the Medicaid card. Defendants assert that the grids are supposed to inform recipients and providers if services are due by use of a ''Y" (yes) or ''N'' (no). But, the grids actually are a barrier to services because they are sometimes out of date and also they confuse recipients and providers. For example, at a couple of his dental appointments, Mary was told Tyrone could not get dental care because there was a ''N'' on his Medicaid card. Mary also encountered a similar problem at Tyrone's eye doctor appointment in October, 1993, when the nurse said the "N" meant that Tyrone could not get eyeglasses. She insisted that he was entitled to glasses, a check was made and the eyeglasses approved. Mary said she knew she was entitled because she had been informed of her rights by the legal service office.
80. If Defendants had properly informed and otherwise assisted Mary Fisher and Tyrone, Tyrone would have more fully used EPSDT services.
81. Since the filing of this lawsuit, Defendants have assigned a case manager to assist Mary and Tyrone to properly access EPSDT services. As a result, Tyrone's receipt of screens and services has improved, as has Mary and Tyrone's understanding
20

Case 3:93-cv-00065-RAS Document 93 Filed 10/19/94 Page 21 of 40 PageID #: 7952
of EPSDT and how it works. But, Tyrone still requires further case management assistance to meet his unpredictable future health care needs and the unmet needs listed above, and further explanations of EPSDT.
Mary Jane Garza and her Children 82. Mary Jane Garza resides with her six children in Earth, Lamb County, Texas. Only her two youngest children, Sarah Renea (born February 10, 1990) and Hilary (born September 22, 1987) are Medicaid recipients. Both have received Medicaid continuously since their births. 83. The Garza family are seasonal farmworkers. During the summer agricultural season, they work long hours in the Panhandle fields. The two Garza children are at risk for health problems, including but not limited to breathing problems, skin problems and various communicable diseases, because of their family's status as farmworkers. 84. The family has a 1986 van, which they bought used. It breaks down frequently, once for as long as two months. 85. Hilary Garza has vision problems. She now wears eye glasses. 86. No one noticed Hilary's vision problems until she began kindergarten in September, 1993. But, according to the eye doctor, Hilary's vision problems probably began at a much earlier age. 87. The nearsightedness in Hilary's right eye will not improve. But, her eyesight is corrected when she wears her glasses.
21

Case 3:93-cv-00065-RAS Document 93 Filed 10/19/94 Page 22 of 40 PageID #: 7953
88. The ''lazy eye'' in Hilary's left eye will improve with treatment. It could have been completely treated before Hilary started school if it had been caught earlier.
89. Further, if Hilary's vision problems had been caught earlier, she would not have lived for most of her young life with uncorrected vision problems.
90. Good vision is essential to a child's proper development, including development of the skills that are the precursor to reading.
91. When Hilary got her eyeglasses, Mary Jane Garza did not know that EPSDT would cover the cost of the glasses. The family could not afford to pay for the glasses. So, they applied for assistance from Hilary's school. The school paid for all but $25 of the cost of Hilary's spectacles. But, the school only pays for one pair of glassesjfamily every few years. As a result, the Garza family has not been able to buy eyeglasses for Becky, one of the older Garza children who is not covered by Medicaid.
92. Hilary often has bronchitis and has had tonsillitis. Her doctor prescribed a vaporizer for Hilary to use at home to help her to breath better and to ease her bronchitis. But, when Mary Jane Garza went to buy the vaporizer, the pharmacist said that Medicaid would not cover the cost. So, Mary Jane Garza paid for the vaporizer herself, even though the Garza family could not afford it. Even though the EPSDT program must provide medically necessary equipment like Hilary's vaporizer, Defendants did not provide the equipment that Hilary needed.
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Case 3:93-cv-00065-RAS Document 93 Filed 10/19/94 Page 23 of 40 PageID #: 7954
93. Sarah Garza's speech has not developed properly. She knows too few words and says them too infrequently. Before this lawsuit was filed, Mary Jane Garza had been concerned about this problem for several months. She wanted to take Sarah for an evaluation and treatment in Plainview, which is 40 miles away. But, she could not arrange transportation.
94. Before this lawsuit was filed, neither Hilary nor Sarah had received more than one or two EPSDT medical screens. Neither had received any dental screens. Dr. sims, in Dimmitt (27 miles away), is the dentist who has treated other family members when they have had dental problems. He does not accept Medicaid.
95. Several years ago, Mary Jane Garza took a friend to apply for benefits at a Texas Department of Human Services office. The friend did not speak English, so Mary Jane Garza translated. During the course of the interview, Mary Jane Garza heard the social worker tell her friend that Medicaid benefits would be terminated if recipients used them too much. As a result, Mary Jane Garza does not take Hilary or Sarah Renea for health care appointments often. She only takes them to the doctor if they are sick.
96. Defendants have not assisted the Garza children to receive the EPSDT services to which they are entitled.
97. Before this lawsuit was filed, Mary Jane Garza and her children had virtually no knowledge about EPSDT. Defendants had not effectively informed them about program services. Further,
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Case 3:93-cv-00065-RAS Document 93 Filed 10/19/94 Page 24 of 40 PageID #: 7955
Defendants had not assisted the Garza children to get timely screens or follow up care.
98. Before this lawsuit was filed, Defendants had not provided or arranged for case management services for the Garza family, even though the children have missed many screens, are at risk of health problems because the family works in the agricultural labor force and in spite of Sarah's potential developmental delay.
99. If Defendants had properly informed and otherwise assisted Mary Jane Garza and her children, the children would have more fully used EPSDT services.
100. Since the filing of this lawsuit, Defendants have assigned a case manager to assist Mary Jane and her daughters to properly access EPSDT services. As a result, the children's receipt of screens and services has improved, as has their understanding of EPSDT and how it works. But, the children still require further case management assistance to meet their unpredictable future health care needs and further explanations of EPSDT. For example, they still have not received dental screens because of transportation problems.
Gloria Padilla and her Children 101. Gloria Padilla is a single mother. She does volunteer work at the El Cenizo city hall. She is also a City Commissioner. 102. Gloria Padilla lives with her five children, Pedro Padilla, Jr. (born November 23, 1976), Maria Gloria Padilla (born September 11, 1980), Laredo Tex Padilla (born July 26, 1985),
24

Case 3:93-cv-00065-RAS Document 93 Filed 10/19/94 Page 25 of 40 PageID #: 7956
Michael Padilla (born June 19, 1986) and Emiliano Padilla (born October 3, 1987).
103. The Padilla children are all eligible for Medicaid and have been for at least the past three years. Earlier in their lives, the children were eligible for Medicaid intermittently.
104. The Padilla's home is substandard. The six family members live in one room (16' x 16') with a dirt floor. Three beds, the restroom and the stove are in this one room.
105. Residents of colonias, such as the Padilla children, are at increased risk of health problems because of their substandard living conditions, pervasive lack of education and isolation from the mainstream of society, including health care providers.
106. Michael and Laredo Tex Padilla were each born two months prematurely.
107. Babies who are born prematurely are at increased risk of ill health. In spite of this increased risk, Michael and Laredo Tex have had few, if any, EPSDT medical screens.
108. Pedro, Laredo Tex and Michael suffer from chronic respiratory problems including asthma, bronchitis, sinusitis and pharyngitis.
109. Michael was hospitalized several times as a young child because of various respiratory problems. Laredo Tex has also required hospital care for respiratory problems.
110. Gloria Padilla sometimes takes her children to the hospital emergency room for health care that could be provided elsewhere. She feels unwelcome in physicians' offices because they
25

Case 3:93-cv-00065-RAS Document 93 Filed 10/19/94 Page 26 of 40 PageID #: 7957
make her feel that they do not want to treat Medicaid recipients, including her children.
111. Laredo Tex and Michael's speech development has been slow. They have each received speech therapy as part of a special education program at school. They do not receive therapy when school is not in session. Even though speech therapy is a service that EPSDT programs must cover, Defendants have not offered to provide or arrange for speech therapy for Laredo Tex or Michael during the times when school is closed.
112. The Padilla children have not had many EPSDT medical screens.
113. Except for Emiliano, the Padilla children have never been to a dentist. Emiliano went to the dentist when he was a Head Start student.
114. Defendants have not assisted the Padilla children to receive the EPSDT services to which they are entitled.
115. Gloria Padilla and her children have virtually no knowledge about EPSDT. Defendants have not effectively informed them about program benefits. Further, Defendants have not assisted the Padilla children to get timely screens or follow up care.
116. Defendants have not provided or arranged for case management services for the Padilla family, even though the children have missed many screens, live in a destitute colonia and in spite of the ongoing respiratory problems that several of the children face.
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Case 3:93-cv-00065-RAS Document 93 Filed 10/19/94 Page 27 of 40 PageID #: 7958
The Medicaid Program 117. Congress enacted Title XIX of the Social Security Act in 1965. 42 U.S.C. § 1396 et. seq. Title XIX is also known as the Medicaid program. Medicaid is administered cooperatively by the federal and state governments. Its purpose is to provide necessary medical services to eligible indigents. 118. The State of Texas participates in the Medicaid program. 119. The federal government provides approximately 64 cents of every dollar that the Texas Medicaid program spends on health care services for the poor. Texas must comply with minimum federal Medicaid requirements to receive this federal financial participation. 12 0. Further, the Health Care Financing Administration (HCFA) , the federal agency that administers EPSDT, has published program guidelines in the State Medicaid Manual. Sections of the Manual are mandatory and binding upon the states.
The Early, Periodic, Screening, Diagnosis and Treatment Program 121. Congress has long been concerned about poverty among children in the United States. Congress is particularly concerned about the health of indigent children in this country, because their living circumstances frequently contribute to or exacerbate health problems. Further, undiagnosed or untreated health problems may prevent indigent children from developing normally and inhibit their ability to contribute to society. 122. EPSDT is one of Congress' most significant responses to the health care needs of our country's indigent children. EPSDT is
27

Case 3:93-cv-00065-RAS Document 93 Filed 10/19/94 Page 28 of 40 PageID #: 7959
a mandatory Medicaid service; states must comply with minimum federal EPSDT requirements in order to participate in the Medicaid program and receive federal financial participation.
123. EPSDT involves a comprehensive program of screens, or check ups, to assess children's health and follow up care to address problems that are diagnosed during screens. EPSDT programs cannot limit the services that they provide to children, as Medicaid programs can limit services to adults. Instead, when medically necessary, EPSDT programs must provide all services allowed by the federal Medicaid Act, whether or not they are included in the state's Medicaid Plan. 42 U.S.C. § 1396d(r).
124. The Omnibus Budget Reconciliation Act of 1989 (OBRA'89) strengthened Medicaid programs' obligations to EPSDT recipients. Congress' intent was to incorporate the EPSDT regulations that existed in 1984 into OBRA'89 and also to expand Medicaid programs' EPSDT obligations beyond those incorporated in the regulations. The regulations have not been revised since OBRA'89 became effective. But, after OBRA'89 became effective, HCFA revised the EPSDT guidelines that are incorporated in the State Medicaid Manual.
Screens 125. EPSDT programs must provide preventive health care to indigent Medicaid recipients under the age of 21. A significant and mandatory component of the EPSDT program is regular screens, or "check ups,'' to assess recipients' health. One purpose of screens is to identify indigent recipients' health problems before they
28

Case 3:93-cv-00065-RAS Document 93 Filed 10/19/94 Page 29 of 40 PageID #: 7960

worsen, so that problems can be corrected in a manner that is

humane, cost effective and that prevents or lessens future problems

when possible.

126. EPSDT programs must provide screens to assess recipients'

physical, mental, vision, hearing and dental health and to provide

immunizations. Screens and immunizations must be provided in

accordance with periodicity schedules that meet professional

standards.

42 u.s. c. §§ 1396a(a) (43) (B); 1396d(r) (1) (A) (i);

(2) (A) (i); (3) (A) (i); (4) (A) (i); State Medicaid Manual § 5140.

127. In spite of the federal requirements concerning screens,

the Texas EPSDT program does not provide screens to EPSDT

recipients when due. Plaintiffs' children have received few timely

health screens. Further, none has received regular dental screens.

This situation is common. See, below, Paragraph 131.

128. Congress requires EPSDT programs to meet annual goals

developed and set by the Secretary of Health and Human Services, so

that an increasing number of EPSDT recipients actually receive

screens. 42 U.S.C. § 1396d. The Secretary developed and set goals

for medical screens; EPSDT programs must achieve 80% by 1995.

Expected annual increases are based upon each state's rates in

1989, the baseline year. State Medicaid Manual § 5360.

129. The Secretary developed 2 measures of EPSDT goals: a)

the participant ratio and b) the screening ratio. The participant

ratio is the percent of recipients who received at least one

medical screen during the fiscal year. The more nebulous screening

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Case 3:93-cv-00065-RAS Document 93 Filed 10/19/94 Page 30 of 40 PageID #: 7961

ratio is the total number of EPSDT recipients divided by the total

number of screens provided during the fiscal year.

130. The Texas EPSDT program fails to meet the Secretary's

goals. The goals and Texas ratios are as follows:

FISCAL YEAR 1989
1991 1992 1993
1994 1995

GOAL
24% 34% 46% 58% 69% 80%

PARTICIPANT RATIO
17.85
24.57% 29.27%

SCREENING RATIO
33.2%
36.69%
47.68%

The 1993 data show that fewer than 30% of recipients received even

one screen. Further, the Texas EPSDT program is falling farther

behind its targeted participation goal each year. Although its

screening ratio was less than 1% behind the goal in fiscal year

1991; it was almost 10% behind the goal in fiscal year 1992 and

more than 10% behind the goal in fiscal year 1993.

131. In addition, most Texas EPSDT recipients do not receive

dental, vision or hearing screens as required by the Texas

periodicity schedules. According to the periodicity schedule,

EPSDT recipients should receive dental screens every 6 months

beginning at age 1. 40 T.A.C. § 33.306 (c). They should also

receive vision and hearing screens. According to official Texas

EPSDT reports, few actually receive dental, vision or hearing

screens:

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Case 3:93-cv-00065-RAS Document 93 Filed 10/19/94 Page 31 of 40 PageID #: 7962

FY

# ELIGIBLE

Dental Vision

Hearing

1991

1,029,776

172,014 152,793

70,667

1992

1,197,648

199,218 182,566

79,805

1993

1,330,465

160,284 176,574

(incomplete)

In fiscal year 1993, about 39,000 fewer dental screens and about

6,000 fewer vision screens were provided to Texas EPSDT recipients

than were provided in fiscal year 1992.

132. The Texas EPSDT program does not employ policies or

procedures to provide timely health, dental, vision, or hearing

screens to EPSDT recipients. State Medicaid Manual § 5310. The

Texas EPSDT program further does not employ policies or procedures

to provide screens to recipients who "are overdue for services."

State Medicaid Manual § 5330.

133. Further, Defendants do not adequately provide or arrange

for screens or other services because they do not adequately

provide or arrange for supportive services, including scheduling

and transportation assistance. Further, they do not have an

adequate system to track recipients' receipt of screens and other

services to facilitate follow up if services are not received.

134. EPSDT recipients often have difficulty in arranging

screens andjor follow up treatment for their children. Sometimes

the problems have communication as their source; for example, many

EPSDT recipients and the adults responsible for them do not have

telephones so they cannot call to schedule or reschedule

appointments.

Also, many EPSDT recipients and the adults

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Case 3:93-cv-00065-RAS Document 93 Filed 10/19/94 Page 32 of 40 PageID #: 7963
responsible for them do not speak English, so there are difficulties in making arrangements.
135. But, problems with arranging appointments are not limited to communication problems. Some EPSDT recipients and the adults responsible for them do not know that the children need services, or do not know what services the children need. Others do not have ongoing relationships with health care providers, so they do not know where to turn for care or for advice about what care is needed and referral to specialists. Further, given the shortage of health care providers who are willing to care for EPSDT recipients in Texas, it is often difficult to find providers to care for recipients. Further, many recipients are faced with hostility from health care providers and do not feel welcome in their offices. So, they are reluctant to seek care.
136. In spite of these common problems among the Texas EPSDT population, the Texas EPSDT program does not properly "provide for
providing or arranging for the provision of such screening services in all cases where they are requested [and] arranging for (directly or through referral to appropriate agencies, organizations, or individuals) corrective treatment the need for which is disclosed by such child receiving health screening services." 42 U.S.C. § 1396a(a) (43) {B); {C). The Texas EPSDT program does not have an effective system to "provide" or "arrange for" screens or follow up care for recipients, including an effective system to help recipients to locate health care providers
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Case 3:93-cv-00065-RAS Document 93 Filed 10/19/94 Page 33 of 40 PageID #: 7964

or schedule and reschedule appointments. See, State Medicaid

Manual, § 5150.

137. Transportation problems also commonly prevent EPSDT

recipients from making arrangements for screens and follow up

services. Many EPSDT recipients and the adults responsible for

them do not have cars, or at least cars that work, so they do not

have reliable ways to get to scheduled appointments on time.

138. Transportation assistance is essential to "providing for

or arranging for the provision'' of care to Plaintiffs and class

members. 42 C.F.R. §§431.53, 440.170, state Medicaid Manual, §

5150. But, the Texas Medicaid transportation system is not

adequate to meet the needs of the Texas EPSDT population.

Defendant Friedholm has stated that there is "universal

dissatisfaction" with the Medicaid transportation system in Texas.

139. First, the program does not provide enough assistance.

It only provided the following assistance:

# EPSDT recipients

# one way trips

FY91

1,029,776

594,804

FY92

1,197,648

670,693

FY93

1,321,048

743,824

EPSDT recipients do not receive all of the transportation

assistance provided each year; older Medicaid recipients also use

this service.

140. Among recipients and health care providers, there is

widespread lack of information about the Medicaid transportation

program.

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Case 3:93-cv-00065-RAS Document 93 Filed 10/19/94 Page 34 of 40 PageID #: 7965

141. Also, Medicaid transportation assistance is so

inconvenient that it is often unusable.

The phone numbers to

request transportation help are often busy or require long waits.

Recipients sometimes must leave a message to be returned, which

does not help recipients who do not have telephones. Waiting times

are so long that they are impractical. Rides show up on the wrong

day and cannot be rescheduled in time to allow recipients to keep

their appointments. Rides home do not show up.

142. In addition, Defendants do not have an adequate tracking

system to determine if recipients receive screens or follow up

services in a timely manner. Without a tracking system, Defendants

have no way to know if recipients have missed screens or services.

Therefore, Defendants cannot provide or arrange for missed screens

or services in a timely manner. Defendants do not even have a

definition of when a recipient has missed a screen.

Identifying and Informing Recipients and

their Families about EPSDT

143. To ameliorate problems with low EPSDT participation,

Congress requires EPSDT programs to aggressively identify and

inform families whose children are eligible for EPSDT services

about the benefits of EPSDT. EPSDT programs must "provide for ...

informing all [ EPSDT recipients] of the availability of [ EPSDT]

services." 42 u.s. c. 1396a(a) (43) (A). Federal regulations further

require EPSDT programs to inform eligible individuals about EPSDT

services and how to obtain them. 42 C.F.R. §§ 441.56(c) (2) i

441.62 (b) (1984) (1984).

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Case 3:93-cv-00065-RAS Document 93 Filed 10/19/94 Page 35 of 40 PageID #: 7966
144. Also, the State Medicaid Manual requires EPSDT programs to inform eligible persons about EPSDT effectively and in a timely manner, generally within 60 days of eligibility. § 5121A. Further, the Manual instructs that " [a) combination of face-toface, oral and written informing activities is most productive .... it is effective and efficient to target specific informing activities to particular 'at risk' groups." Id. The State Medicaid Manual further requires EPSDT programs to offer transportation and scheduling assistance prior to each due date of a child's periodic examination.'' § 5150 (emphasis added).
145. In spite of the requirement that EPSDT programs effectively inform recipients and their families about EPSDT services, Plaintiffs, their children and other EPSDT recipients are not made fully aware of all available EPSDT services. As a result, Plaintiffs and other EPSDT recipients do not obtain or knowingly decline all EPSDT services to which they are entitled. This situation is common, particularly because the Texas EPSDT program does not employ effective means to inform recipients about program services. Further, the Texas EPSDT program does not comply with the requirements imposed by the State Medicaid Manual.
Follow Up Treatment 146. EPSDT services include "other necessary health care, diagnostic services, treatment, and other measures ... to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services." 42 u.s.c. § 1396d(r) (5). EPSDT programs must provide or arrange for these
35

Case 3:93-cv-00065-RAS Document 93 Filed 10/19/94 Page 36 of 40 PageID #: 7967
services. 42 u.s.c. § 1396a(a) (43) (C). EPSDT programs must refer recipients for "diagnosis without delay and follow-up to make sure that the recipient receives a complete diagnostic evaluation .... (They must also) [d]evelop quality assurance procedures to assure comprehensive care for the individual." State Medicaid Manual § 5124A. Further, EPSDT programs must "[e]mp1oy processes to ... insure timely initiation of treatment" and assure that recipients who "are overdue for services" receive them. Id. § 5330. But, according to official EPSDT reports, only 139,072 of the almost 1,200,000 Texas EPSDT recipients received referrals for corrective treatment in fiscal year 1992. In fiscal year 1993, only 191,626 of the 1,330,465 Texas EPSDT recipients received similar referrals.
147. The Texas EPSDT program does not have effective policies or procedures to insure that EPSDT recipients receive needed health care, diagnosis, treatment or other measures needed to correct or ameliorate defects and physical and mental illnesses and conditions discovered during screens.
148. Further, Defendants do not adequately provide or arrange for follow up services, 42 U.S.C. § 1396a(a) (43) (C), because they do not provide adequate supportive services, including assistance with scheduling appointments and transportation. Further, they do not have an adequate system to track recipients' receipt of screens and other services to facilitate follow up if services are not received. See, above, Paragraphs 133-42.
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Case 3:93-cv-00065-RAS Document 93 Filed 10/19/94 Page 37 of 40 PageID #: 7968

Case Management

149. The Texas EPSDT program does not provide case management

for all recipients when needed. Case management is a service that

assists families to assure that their children receive needed

health care in a manner that is coordinated, appropriate and cost

effective.

It could appreciably improve EPSDT recipients'

coordinated and timely access to screens and other EPSDT services.

Further, case management is a service that federal law permits

Medicaid programs to cover. 42 u.s.c. §§ 1396d(a) (19); 1396n(g).

So, EPSDT programs must provide it for children when needed. 42

u.s.c. § 1396d(r).

Services are not Uniformly Available statewide

150. Finally, EPSDT services do not exist, operate and

function uniformly in all political subdivisions of the state. 42

U.S.C. § 1396a(a) (1); 42 C.F.R. § 431.50.

FIRST CLAIM FOR RELIEF

151. Defendants and the Texas EPSDT program do not employ

policies or procedures to provide or arrange for health, dental,

vision and/or hearing screens for recipients in accordance with the

Texas EPSDT periodicity schedules. 42 U.S.C. §§ 1396a(a) (43) (B),

1396d(r) (1) (A) (i); (2) (A) (i); (3) (A) (i); (4) (A) (i); State Medicaid

Manual §§ 5310;5330.

SECOND CLAIM FOR RELIEF

152. Defendants and the Texas EPSDT program do not meet the

annual participation goals that the Secretary of Health and Human

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Case 3:93-cv-00065-RAS Document 93 Filed 10/19/94 Page 38 of 40 PageID #: 7969
Services developed and set for the Texas EPSDT program. 42 U.S.C. § 1396d(r); State Medicaid Manual§ 5360.
THIRD CLAIM FOR RELIEF 153. Defendants and the Texas EPSDT program do not effectively inform all persons in the state who are under age 21 and who are eligible for Medicaid of the availability of EPSDT services. 42 U.S.C. § 1396a(a) (43) (A); 42 C.F.R. § 441.56(a); State Medicaid Manual § 5121.
FOURTH CLAIM FOR RELIEF 154. Defendants and the Texas EPSDT program do not employ policies or procedures to provide or arrange for ''other necessary health care, diagnostic services, treatment and other measures ... to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services'' for recipients. 42 u.s.c. § 1396d(r) (5); state Medicaid Manual§§ 5124A; 5330.
FIFTH CLAIM FOR RELIEF 155. Defendants and the Texas EPSDT program do not provide case management services to all EPSDT recipients as needed. 42 u.s. c. § 1396d(r).
SIXTH CLAIM FOR RELIEF 156. EPSDT services do not exist, operate and function uniformly in all political subdivisions of the state. 42 U.S.C. § 1396a(a) (1) i 42 C.F.R. § 431.50.
38

Case 3:93-cv-00065-RAS Document 93 Filed 10/19/94 Page 39 of 40 PageID #: 7970
THEREFORE, Plaintiffs request that the Court: Certify the existence of a class of all present and
future Texas Medicaid recipients who qualify for EPSDT because they have not reached the age of 21, but who have not received the entire range of EPSDT services to which they are entitled.
Declare that Defendants violate the federal Medicaid Act, regulations and mandatory portions of the State Medicaid Manual by failing to comply with minimum EPSDT standards;
Preliminarily and permanently enjoin Defendants from violating federal EPSDT standards;
Order Defendants to pay to Plaintiffs' attorneys reasonable fees and costs;
Order any other relief that is appropriate.
ATTORNEYS FOR PLAINTIFFS Respectfully submitted,
Susan Finkelstein Zinn State Bar No. 07015500 Texas Rural Legal Aid, Inc. 405 N. St. Mary's, Suite 910 San Antonio, Texas 78205 (210) 271-3807 (210) 222-9408 FAX ATTORNEY IN CHARGE Sharon Reynerson State Bar No. 16794930 East Texas Legal Services 115 s.w. First street 5th Floor Paris, Texas 75460 (903) 785-8711 (903) 785-5990 FAX
39

Case 3:93-cv-00065-RAS Document 93 Filed 10/19/94 Page 40 of 40 PageID #: 7971
Joaquin Amaya, Jr. State Bar No. 00786975 TEXAS RURAL LEGAL AID, INC. P.O. Box 1658 Plainview, Texas 79072 tel. 806/293-2625 fax. 806/293-0332 Israel Reyna State Bar No. 16794810 TEXAS RURAL LEGAL AID, INC. P.O. Box 888 Laredo, Texas 78042 tel. 210/727-5191 fax. 210/727-8371 Rodolfo Sanchez State Bar No. 17572100 TEXAS RURAL LEGAL AID, INC. 259 South Texas Boulevard Weslaco, Texas 78596 tel. 210/968-6574
::~· 210/968-8823 ~
ATT RNEYS FOR PLAINTIFFS
40

 
 Case 3:93-cv-00065-RAS Document 135 Filed 02/20/96 Page 1 of 78 PageID #: 8384
'"t-i. i"''·

nggJkc , IN THE UNITED STATES DISTRICT COlm.-'r.).f~i\S~"
FOR THE EASTERN DISTRICT OF

./,

PARIS DMSION

(0 JUL r; ~~ !SSS

LINDA FREW, eta!. Plaintiffs,
v. MICHAEL MCKINNEY, et a!.
Defendants.

'\.¢;.,.

§

,, -~?.0}!_J .:~~s·~~~\~r

§

§

§ CIVIL ACTION NO. 3:93CV65

§

§

§

§

§

CONSENT DECREE

TABLE OF CONTENTS

BY DEPUTf

Introduction ........................................................................ 5

Texas Department of Health Reorganization ................................... 7

Informing and Outreach ............................................................ 7

Simplification of Terms ................................................... 9

Program Name

............................................. 9

Periodic Check Ups ............................................. 9

Written Materials ······················································ 9 ·· Reminderl::;etters- .. ::: ... ::·..... ;... :·: ....... :·:: ........... '· .-9-

Brochures and Fliers ............................................. 11

Medical Identification Card .................................... 11

Texas Department of Human Services

........................... 12

Outreach Units

...................................................... 14

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Coordinated Efforts with Other Agencies ............. ....... 22

Agency Handbooks ........ ....................... ....... 22

Media ............................................................... 23

Health Care Providers

24

Private Practitioners: Background .... ..... .... .. .......... . 24

Provider Enrollment ............................................ 24

Number of Private Practitioners

25

Private Practitioners Limit Services

26

Texas Department of Health Staff

27

Paperwork Simplification

28

Accurate Referral Lists

28

Agency Responsiveness

28

No Shows/Missed Check Ups

29

Indexed Reimbursement for Medical Check Ups

29

Recruitment of Professional Schools to Be Providers .. .. 30

Intensified Provider Recruitment Efforts

30

Training Providers

30

At Professional Schools

31

Associated with Other High Caliber Training.... 31

By Other Professional Organizations

32

By TDH and NIDC ... ..... ......... .... ........... ... 32

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About Mental Health Services

32

Mental Health Screening Tool

32

About Services for Teenagers

32

About New Issues

34

About Realities of EPSDT Recipients' Lives/

Cultural Sensitivity ....... .......... ........ .......... ..

34

For Nurses

34

For Pharmacists

35

Scholarships

37

"Public" Providers

37

Barriers to Participation

37

Recruitment of Public Health Care Agencies .....

40

Dental........................................................................

40

Baby Bottle Tooth Decay

41

Sealants

43

Dental Scans ........ ..... .... .......... ..... ......... .. ...

43

Elimination of Age Limit

44

Training for Providers

44

Providers .................................................................... 45

Provider Participation Reports

45

Audits of Dental Practices

45

Use of Current Professional Standards

46

3

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Accountability /Measurement

46

Check Ups

46

Recipients' Health

47

Special Groups

47

Farmworkers

47

Recipients in Managed Care ....... ......... ...... ..............

50

Teens ...............................................................

53

Recipients Under the Supervision of the Texas

Department of Protective and Regulatory Services

56

Transportation/Scheduling

57

Transportation

57

Current Program

57

TDHS Informing

60

Annual Assessment and Corrective Action Plan

60

Urgent Requests

61

Mileage Reimbursement

61

Revision of Regulations

63

Scheduling Assistance

63

Toll Free Help Lines ...... ....... ............ ...........

63

Self Correction/Provider Shortages

64

Standards for Toll Free Help Lines

65

Case Management

65

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Administrative Case Management

65

Medical Case Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

66

Plan and Implementation Schedule .............. .....

68

Statewideness .... ........... ....... ..... .... .. ......... ............ ... ......

69

Measurement/Accountability

71

Method to Report Check Ups

72

Health Outcomes Studies as a Proxy Measure of

Follow Up Care ... ......... ........... ........ .. ............ .

72

Management Information System

75

Miscellaneous

75

INTRODUCTION
1. According to the 1990 United States Census, about 5,672,537 Texans are under the age of 21. Roughly 1.5 million of them (more than 20%) receive Medicaid and are eligible for Early Periodic Screening, Diagnosis and Treatment (EPSDT) benefits. The number of recipients should increase in future years because of federally required eligibility expansions.
2. EPSDT is intended to provide comprehensive, timely and cost effective health services to indigent children and teenagers who qualify for Medicaid benefits. Check ups are the cornerstone of the program. They assess recipients' health, provide preventive care and counselling (anticipatory guidance) and make referrals for other needed diagnosis and treatment.

5

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42 U.S.C. §§ 1396a(a)(43); 1396d(r). Recipients are entitled to both medical and dental check ups on a regular schedule. About 48% of recipients received at least one medical check up in fiscal year 1994 (FY94), according to reports Defendants filed with the United States Department

of Health and Human Services. 3. Recipients are also entitled to all needed follow up health care services that

are permitted by federal Medicaid law. 42 U.S. C. § 1396d(r). 4. Given the large number of recipients in Texas, improvements to the EPSDT
program should improve the lives of many indigent youth. The program also has the potential to improve the overall health of the Texas population, because the percent of young Texans who receive EPSDT benefits is large and increasing. The likelihood that these young Texans will be healthy children and grow into healthy adults increases if the Texas EPSDT program functions properly. To achieve this end, recipients and the adults responsible for them must be effectively informed about EPSDT and its benefits. Further, young recipients should receive proper health

care.

5. The Texas EPSDT program can be improved. Indigent EPSDT recipients

are more likely to receive adequate health care when the EPSDT program

*

enhances the availability of health care services,

*

eliminates barriers that have the effect of preventing access to services, and

*

more effectively informs recipients that services are available and important

to their current and future health.

6. To address the parties' concerns, to enhance recipients' access to health

care, and to foster the improved use of health care services by Texas EPSDT recipients, the

6

Case 3:93-cv-00065-RAS Document 135 Filed 02/20/96 Page 7 of 78 PageID #: 8390

parties agree and the Court orders Defendants to implement the following changes and procedures for the Texas EPSDT program:
7. TEXAS DEPARTMENT OF HEALTH REORGANIZATION The Texas Department of Health (TDH) is the agency that administers EPSDT. TDH has reorganized its administrative structure to better administer the program. Senior management staff are responsible for the EPSDT program in each of TDH's 8 regions. In each region, a senior manager is ultimately responsible for EPSDT. Other functions of the management team include a) community relations and outreach and b) provider relations.
8. Further, the TDH State EPSDT office has reorganized to better administer the program. Before TDH assumed responsibility for EPSDT on September 1, 1993, only about 6 staff members at the State office of the Texas Department of Human Services were directly involved in running the EPSDT program. TDH's EPSDT Division now employs 25 staff. Currently, the Division is divided into 2 units: a) Program and Policy Development and b) Operations. Obviously, the policy unit develops policies and procedures for the program. The operations unit supervises and evaluates work performed in the regions.
9. Further, by July, 1996, TDH will develop the capacity to conduct epidemiologic studies of the EPSDT population to determine if the program is improving

recipients' health.

INFORMING AND OUTREACH

10. Information about the EPSDT program is important so that recipients can fully utilize EPSDT services, including medical and dental check ups.

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11. The parties agree to and the Court orders the following changes to the Texas

EPSDT program, policies and procedures to effectively inform recipients about the EPSDT

program:

12. The process of informing recipients about EPSDT involves several

components, including:

*

written information of various types,

*

face to face oral informing by Texas Department of Human Services

(TDHS) eligibility workers during interviews to determine eligibility for Medicaid

benefits,

*

oral outreach by outreach units when recipients a) request further

information, b) miss medical and/or dental check ups, or c) when requested by

health care providers,

*

coordinated efforts with other agencies, and

* media efforts.

13. For the purposes of informing and outreach, "recipient" means an EPSDT

recipient and/or the adult responsible for the recipient's health care, as appropriate. Further, it is encouraged but not required that other family members be included in informing efforts when

appropriate. 14. Information about EPSDT must be relevant to recipients' needs.
Information must also be reasonably interesting and presented in a manner that is sensitive to EPSDT recipients' many different cultural backgrounds. It will also be presented in a positive

8

Case 3:93-cv-00065-RAS Document 135 Filed 02/20/96 Page 9 of 78 PageID #: 8392

and timely way that encourages recipients to understand and use services fully. Finally,

information must be presented in a manner that is convenient to recipients.

SIMPLIFICATION OF TERMS

15. Program Name Many recipients do not understand the terms "Early

Periodic Screening Diagnosis and Treatment" or "EPSDT." These terms do not give meaningful

information about the purpose of the program. Defendants agree to delete or change the

program's name by September 30, 1995. The new name will reflect the program's goals and

readily identify it to recipients.

16. Periodic Check Ups Federal law requires the EPSDT program to provide

periodic medical "screens" and dental "services." 42 U.S.C. § 1396d(r). Defendants call these

services "medical screens" and "dental exams." Further, Defendants may implement a new

program that involves "dental scans," which some dentists might consider to be "screens." To

avoid confusion, the following terms in English and Spanish will be used:

*

a medical or dental service provided in accordance with the periodicity

schedules will be called a "check up/examen;"

*

a dental service provided to encourage the timely use of dental check ups

will be called a "dental scan! inspeccion dental. "

17. WRITTEN MATERIALS Defendants provide various forms of written

materials to explain the EPSDT program and to encourage its use.

Reminder Letters Defendants agree to mail letters to recipients who are about to

be due for a medical and/or dental check up. Defendants will mail the letters early

in the month that the check up is due. But, Plaintiffs contend that this timing is not

9

Case 3:93-cv-00065-RAS Document 135 Filed 02/20/96 Page 10 of 78 PageID #: 8393

effective in one instance - letters about dental check ups for 1 year olds. Many

recipients do not know that 1 year olds need dental check ups. Also, there is a

shortage of dentists who provide services to one year olds, so there is often a delay

in scheduling appointments. So, Defendants will mail letters about the 1 year

dental check up 2 months before the check up is due, i.e., when the recipient is 10

months old (except for recipients who lose eligibility at one year of age). This

schedule will be implemented no later than January 1, 1996.

*

Plaintiffs contend that in the past, the letters sent to recipients due for check

ups were hard to understand and impersonal. For example, some letters did not

specify which child in a family was due for what type of service. The letters only

indicated that a child was due for some kind of service.

*

Defendants will use letters that are effective and appropriate. They will be

printed in English and Spanish. They will encourage the use of EPSDT services

in a positive manner. Each letter will specify the name of the child who is due for

a service and whether the child is due for a medical or a dental check up. The

letters will also include information about the benefits of preventive care. The

information will be appropriate to the age of the child who is due for a check up.

The reason to include age appropriate information is to provide information that

is relevant and interesting to encourage the recipient to fully use EPSDT services.

*

When appropriate, the letters will vary by geographic area

to provide information that is relevant to the different geographic

areas of the state. The letters will also explain that services are free

10

Case 3:93-cv-00065-RAS Document 135 Filed 02/20/96 Page 11 of 78 PageID #: 8394

of charge. They will offer help with transportation, locating a

provider who is willing to serve Medicaid recipients and scheduling

appointments. The letters will state the toll free telephone numbers

that are available for assistance with transportation and scheduling.

Brochures and Fliers Defendants provide various brochures and fliers to

recipients, applicants and community agencies where the EPSDT population may

be found. Defendants will update the brochures and fliers to make them

appropriate for use with the EPSDT population. Defendants will create age

appropriate information for use by recipients of specific ages.

Medical Identification Card Every month, Medicaid recipients receive new

Medical Identification cards (Form 3087). Exhibit 1.

*

When the Texas Department of Human Services (TDHS) administered

EPSDT, TDHS created "grids" on the Medical Identification cards. The purpose

of the "grids" is to use Medical Identification cards to inform recipients and health

care providers when medical and dental check ups are due. They are supposed to

show when check ups are due or not due by use of "Y" to indicate "yes" and "N"

to indicate "no." For example, a "Y" in the EPSDT medical column is intended

to show that a medical check up is due. Conversely, an "N" in the EPSDT

medical column is intended to show that a medical check up is not due. The

EPSDT dental column is supposed to function the same way.

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Case 3:93-cv-00065-RAS Document 135 Filed 02/20/96 Page 12 of 78 PageID #: 8395

*

But, Plaintiffs contend that the "grids" do not effectively inform some

recipients that check ups are due. Some recipients believe that the "N" means that

services are not available at all - not merely that a check up is not due.

*

The parties have developed a proposed new card. Defendants will field test

the new card by May 31, 1995 to determine which card more effectively informs

recipients. The field testing will be conducted in a manner that is acceptable to

Plaintiffs. Plaintiffs will submit their decision about the method of field testing to

Defendants within 30 days of receipt. Plaintiffs will not unreasonably withhold

approval. If the parties agree that the field tests show that the revised card is

acceptable, the new card will be in use within 6 months. If the new design is not

acceptable, another revision will be available for field testing by July 31, 1995.

18. This paragraph does not preclude the development of new Medicaid card

formats in the future as contemplated by Paragraph 304.

19. TEXAS DEPARTMENT OF HUMAN SERVICES The Texas Department

of Human Services (TDHS) interviews hundreds of thousands of applicants for Medicaid benefits

every year. Eligibility workers almost always meet with the applicant in person.

20. In the past, the EPSDT program has relied upon eligibility workers to

inform applicants about EPSDT. This process is now being improved. Eligibility workers will

now be required to discuss EPSDT with applicants who apply for benefits on behalf of an EPSDT

eligible person. Eligibility workers will provide information during initial eligibility interviews

but not during subsequent interviews. The discussion will include at least the following elements:

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Case 3:93-cv-00065-RAS Document 135 Filed 02/20/96 Page 13 of 78 PageID #: 8396

*

age appropriate information about the importance of

preventive care for children of the ages in the applicant's

household;

*

information about medical and dental check ups and the full

range of EPSDT services;

*

information about how to call TDH toll free telephone

numbers for help with a) transportation, b) locating a health care

provider who is willing to provide services to EPSDT recipients and

c) scheduling appointments for EPSDT services;

*

information about the Medicaid Transportation Program

including but not limited to a description of the gas reimbursement

option;

*

encouragement to request further oral outreach to provide

more information and answer questions about EPSDT; and

*

an offer of help from the TDHS office to arrange further

outreach.

21. Eligibility workers will also provide an EPSDT brochure and a wallet card

schedule of medical check ups to each applicant household. Exhibits 2, 3. 22. Eligibility workers will receive an outline of the subjects to be covered in

each interview to guide the discussion of EPSDT. They will also receive training about how to discuss EPSDT, including instructions to follow the outline. The parties will agree on the

contents of the outline by March 31, 1995.

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Case 3:93-cv-00065-RAS Document 135 Filed 02/20/96 Page 14 of 78 PageID #: 8397

23. Upon request, each TDHS office will provide assistance to help applicants to request further oral outreach by an outreach unit. See below. This assistance may include but is not limited to the use of a TDHS telephone to call the outreach unit to schedule a convenient

appointment. 24. A Memorandum of Understanding between TDH and TDHS concerning the
outreach process will be presented for Plaintiffs' approval by August 31, 1995 and to the Court by October 1, 1995. It will address all terms outlined in this agreement as well as a) training of · TDHS eligibility workers to conduct EPSDT informing and b) the monitoring of TDHS' EPSDT informing process to determine its ongoing effectiveness.
25. OUTREACH UNITS But, information about EPSDT provided by TDHS eligibility workers will not be effective for all EPSDT recipients. Oral outreach units will provide

outreach services when required. 26. An outreach unit is the entity responsible for oral outreach in a geographic
area of Texas. An outreach unit can be either (a) an agency that contracts with TDH to provide

oral outreach services or (b) TDH staff. 27. Defendants contemplate that contractors will provide outreach services in
urban areas. TDH staff will provide outreach services where it is not practical or possible to

contract for services. 28. A model request for proposals for contracted outreach units is attached.

Exhibit 4.

29. All outreach units will begin to provide outreach services by September 1,

1995. 14

Case 3:93-cv-00065-RAS Document 135 Filed 02/20/96 Page 15 of 78 PageID #: 8398

30. Outreach units will work cooperatively with others who serve EPSDT

recipients to serve recipients effectively and efficiently.

31. Defendants will provide outreach services in all areas of the state. To the

extent possible, these services will not be overlapping.

32. All outreach units will have sufficient staff and other reasonably necessary

resources to handle their workload promptly and effectively.

33. Four groups of EPSDT recipients require oral outreach services by an

outreach unit. They are a) recipients who request information beyond that provided by TDHS

eligibility workers, b) recipients who miss medical check ups, c) recipients who miss dental check

ups and d) recipients whose health care provider requests outreach. 34. Beginning on September 1, 1995, outreach units will provide oral outreach

to all recipients who request information about EPSDT beyond that provided byTDHS eligibility

workers.

35. Beginning on September 1, 1995, outreach units will provide oral outreach

to all recipients who miss a medical check up that is due on or after July 1, 1995. "Due" means

a medical check up that is due according to the current Texas EPSDT periodicity schedule, i.e.,

newborn

24 months

13 years*

1-2 weeks

3 years

14 years

2 months

4 years

15 years*

4 months

5 years

16 years

6 months

6 years

17 years*

9 months

8 years

18 years

15

[1l~'Y

Case 3:93-cv-00065-RAS Document 135 Filed 02/20/96 Page 16 of 78 PageID #: 8399

12 months

10 years

19 years*

15 months

11 years*

20 years

18 months

12 years

* special teen checkups

For infants, outreach units will provide outreach to recipients aged 5 months and 11 months who

have missed a medical check up, or more often at Defendants' option.

36. The different schedules for medical and dental check ups mean that

recipients can miss the interim dental check ups even if they receive timely medical check ups.

For example, between the ages of 6 and 10 years, recipients are due for medical check ups every

2 years. They are also due for dental check ups every 6 months.

37. Beginning no later than June, 1997, outreach units will provide oral

outreach to all recipients who miss a dental check up that is due on or after April 1, 1997. "Due"

means a dental check up that is due according to the Texas EPSDT periodicity schedule, i.e.,

starting at 1 year and continuing every 6 months.

38. Outreach units will use highly visual written materials about dental issues. The

materials will include photographs of healthy mouths and common dental problems. Materials

will be appropriate to the age of the recipients who receive outreach. Outreach will attempt to

convince recipients that they can achieve dental health if they care for their mouths properly.

39. Beginning no later than June, 1997, oral outreach for missed dental check

ups will continue in tandem with oral outreach upon request and for missed medical check ups.

40. Every month, Defendants will provide a current Outreach List to each

outreach unit. The Outreach List will identify each recipient who requires oral outreach from the

16

Case 3:93-cv-00065-RAS Document 135 Filed 02/20/96 Page 17 of 78 PageID #: 8400
outreach unit. The Outreach List will contain pertinent information to enable outreach workers to effectively assist recipients.
41. Beginning in August, 1995, Defendants will maintain a list of recipients for whom no medical check up bill has been received no more than 60 days after the check up was due. Beginning in May, 1997, Defendants will maintain a list of recipients for whom no dental check up bill has been received no more than 60 days after the check up was due.
42. Each month, outreach letters are mailed from Austin to newly certified recipients and recipients for whom bills for check ups have not been received within 60 days of their periodic eligibility month.
43. Further, TDHS will identify recipients who request information about EPSDT beyond that provided by TDHS eligibility workers. TDHS will provide the names of these recipients to Defendants promptly after the request is made. Defendants will-include these names in outreach efforts.
44. Defendants will list the recipients who require outreach because of missed check ups in the geographic area served by each outreach unit. Each month, Defendants will provide these lists to outreach units.
45. Outreach files include the TDHS referral lists and the TDH lists of recipients who miss check ups.
46. Within 10 working days of receipt of the TDHS referrals each outreach unit will mail a written offer of outreach to each recipient identified on the lists. The written offer will encourage the recipient to request oral outreach in a manner that is convenient to the recipient. The written offer will state that the recipient actually has options about how and when to receive
17

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oral outreach. The written offer will explain that the outreach unit provides oral outreach in several different ways, including a) at a location convenient to the recipient including the home, b) by telephone, c) at the outreach unit's office or other offices or d) in some geographic areas, in small group sessions. The written offer will also clarify that oral outreach will be provided at a time that is convenient for the recipient. The written offer may tentatively schedule an appointment for outreach services, but it will encourage the recipient to schedule another form,

location or time for outreach if the recipient prefers. 47. Outreach units will provide outreach services as described in the above

paragraph and elsewhere in this agreement. 48. Written offers of outreach will correspond to the reason that outreach is

required. 49. Outreach units will keep current so that they can a) provide prempt outreach
upon receipt of new Outreach Lists and b) properly manage their caseload of recipients who

require outreach. 50.

The purpose of oral outreach is to

*encourage EPSDT recipients to fully use EPSDT services; and

* assist recipients to overcome common barriers that prevent them from

using EPSDT services.

51. Common barriers may include

*

lack of a health care provider;

*

communication problems (non-English speaker, no telephone);

* transportation problems;

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Case 3:93-cv-00065-RAS Document 135 Filed 02/20/96 Page 19 of 78 PageID #: 8402

*

misunderstandings/lack of knowledge about Medicaid and/or EPSDT.

52. Oral outreach efforts will effectively inform recipients about EPSDT,

including the schedule for medical and dental check ups as well as the full range of covered

services. Oral outreach will also effectively inform recipients about the benefits of preventive

health care, that services are free of charge, how to locate a provider who is willing to provide services to EPSDT recipients, how to schedule appointments and how to schedule transportation

assistance. 53. When appropriate, outreach staff will help recipients to schedule

appointments and/or transportation during the oral outreach session.

54. Oral outreach will use examples that are tailored to the recipient's age and needs so that information is relevant and interesting to the recipient. When a household includes

several recipients of different ages, outreach will provide age appropriate informati0n about each

recipient when possible. 55. Oral outreach will also discuss the Medicaid Transportation Program as

appropriate to the recipient's needs. It will explain how the Transportation Program can help each recipient given the recipient's current transportation resources. Oral outreach will also explain

what other transportation options are available if the recipient's transportation resources change,

for example, if the family loses their only car. 56. Oral outreach will be provided in a manner that is sensitive to recipients'

ability to understand and process information. Appropriate language will be used. Sessions will be long enough to meet recipients' needs for information but not so long that they are

19

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overwhelming or confusing. The length of sessions will necessarily vary from recipient to recipient.
57. Recipients may require oral outreach services more than once. For example, a recipient may receive oral outreach services after missing a medical check up. The recipient may also miss the next medical check up and require oral outreach again. The outreach unit's responsibility is to provide oral outreach again upon receipt of an Outreach List that again identifies the recipient.
58. Over time, the groups of recipients who require oral outreach should change. At first, many recipients will require oral outreach because of missed check ups or by request. But, if oral outreach works, the percent of recipients who miss check ups will decrease. Further, many of those who request oral outreach should have their questions answered. The groups of recipients who require oral outreach will increasingly be a) newly eligible recipients who have never received oral outreach, b) recipients who continue to misunderstand EPSDT or miss check ups and c) recipients who face new health care problems.
59. Outreach unit staff will not make child abuse or neglect reports because of a) failure to respond to an offer of outreach or b) failure to receive a medical or dental check up. The parties do not intend to preclude outreach workers from making a report if other sufficient evidence of child abuse or neglect exists.
60. Each month, the outreach unit will at a minimum report the following information to the EPSDT program:
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a) the number of initial written offers of outreach mailed to recipients. b) the number of requests for outreach by health care providers, See, page 29. c) the number of recipients who did not respond to the initial written offer of outreach within 45 days; d) the number of recipients who did not receive oral outreach within 45 days of receipt of the outreach lists; e) the number of recipients who responded to the initial written offer of outreach and the number who requested each method of outreach; f) the number of recipients who received each method of outreach; and g) the number and status of recipients identified on earlier outreach lists who did not receive oral outreach in prior months and who requested services. 61. By September 1, 1996, Defendants will develop and implement a method that reports the number and percent of recipients who receive medical and/or dental check ups after receipt of oral outreach. 62. Defendants will train outreach unit staff. Either TDH EPSDT State Office staff or EPSDT Regional Office staff will provide this training. Training will be standardized so that outreach services are delivered effectively throughout the state. Training may also address uniquely local issues that vary across Texas. Training will address all issues raised in this settlement agreement that are relevant to outreach units. 63. The dental section of this agreement describes further outreach efforts. See, page 40-4.
21

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64. Defendants may conduct other appropriate, aggressive outreach efforts to encourage recipients to use EPSDT services.
65. COORDINATED EFFORTS WITH OTHER AGENCIES In addition to the coordinated efforts between Defendants and TDHS described above, Defendants will work with the following agencies to effectively inform recipients and others about EPSDT:
Texas Department of Protective and Regulatory Services Early Childhood Intervention Texas Juvenile Probation Commission Texas Department on Aging Texas Commission on Alcohol and Drug Abuse Texas Commission on the Blind Texas Department of Mental Health/Mental Retardation Texas Health and Human Services Commission any other appropriate agency 66. Agency Handbooks Staff of other agencies can help their clients who are also eligible for EPSDT to understand and use EPSDT benefits. To do so, other agency staff must have accurate information about EPSDT. 67. Agency handbooks are important for staff because they provide a permanent source of information. But, handbooks are not effective if they are out of date. 68. Defendants will provide accurate information about EPSDT for inclusion in the handbooks of other agencies that serve EPSDT recipients. Defendants will update the information from time to time as appropriate.
22

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69. Memorandums of understanding about handbook information between TDH, TDHS and TDPRS will be presented for Plaintiffs' approval by August 31, 1995 and to the Court by October 1, 1995.
70. Defendants will also provide handbook inserts to the following agencies and programs on an ongoing basis:
Early Childhood Intervention Texas Juvenile Probation Commission Texas Department on Aging Texas Commission on Alcohol and Drug Abuse Texas Commission on the Blind Texas Department of Mental Health/Mental Retardation Texas Health and Human Services Commission any other appropriate agency 71. By September 1, 1995, the Commissioner of Health will write to the Commissioner of each agency to ask that the other agency include the information in the appropriate handbook. Defendants will follow up with each agency to be sure that the provided information is appropriate and in use. 72. TDH will encourage other agencies to use EPSDT brochures and will provide adequate supplies of brochures to requesting agencies. 73. MEDIA Defendants will arrange for and implement a marketing plan that encourages providers and recipients to participate in the EPSDT program. Defendants provided a copy of the Marketing Invitation for Bids to the Court in March, 1995.
23

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74. This section does not preclude the development of outreach models to be used by managed care organizations as contemplated by Paragraph 304.
HEALTH CARE PROVIDERS

75. Defendants' efforts concerning providers involve

*

recruitment of new providers to serve EPSDT recipients,

*

retention of providers who currently serve EPSDT recipients and

efforts to encourage them to increase the number of recipients they serve,

*

training of providers and their administrative staff about how

EPSDT works, and

*

facilitating training for providers about clinical issues relevant to

provision of services to recipients.
care 76. PRIVATE PRACTITIONERS: BACKGROUND Health providers in

private practice provide the vast majority of health care services to EPSDT recipients. As a

result, the number of private practitioners who participate in Medicaid and EPSDT, and the

quality of care that they provide, significantly influence the success of EPSDT in Texas.

77. PROVIDER ENROLLMENT Providers must apply to receive

reimbursement for services to EPSDT recipients. By signing provider agreements with TDH,

providers agree to follow Medicaid rules and accept Medicaid reimbursement as payment in full.

78. Providers must complete further paperwork to enroll to provide EPSDT

medical or dental check ups. Only doctors and advanced nurse practitioners (ANPs) may enroll

to conduct EPSDT medical check ups. ANPs have special training that allows them to provide

24

Case 3:93-cv-00065-RAS Document 135 Filed 02/20/96 Page 25 of 78 PageID #: 8408
services to patients with specified illnesses and conditions, under protocols designed by collaborating physicians. They establish referral sources for patients whose conditions require services that are beyond their scope of practice or competence.
79. Under some circumstances, registered nurses (RNs) may also provide EPSDT medical check ups. RNs must have special training about how to assess the health of children and youth. Further, they may conduct EPSDT medical check ups only under the direct supervision of a physician. Unlike ANPs, RNs may not enroll independently to provide medical check ups. Also, unlike ANPs, RNs may not submit their own bills for EPSDT medical check ups. Instead, their supervising physician is responsible for billing.
80. Only dentists may conduct EPSDT dental check ups. They may be assisted by dental hygienists or dental assistants.
81. NUMBER OF PRIVATE PRACTITIONERS Nothing in fedeiallaw, Texas law or the Medicaid provider agreement requires private practitioners to serve a minimum number of EPSDT recipients. Providers may decline to serve EPSDT recipients or limit the number of recipients in their practice if they decide to serve the population at all.
82. In FY94, approximately 43,613 medical doctors provided direct services in Texas. At least 25,000 were Medicaid providers. Defendants believe that 25,000 understates the number of Texas physicians who accept Medicaid payments. Further, 7986 primary care practitioners accept Medicaid. Also, 5636 advanced nurse practitioners provide direct services in Texas. In December, 1994, 830 advanced nurse practitioners submitted Medicaid bills. Only 1840 doctors and advanced nurse practitioners are signed up to provide EPSDT medical check ups.
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83. In FY94, 9172 dentists were licensed in Texas. About 17-1800 dentists

billed Medicaid in the past 6 months.

84. Specialists generally do not provide medical check ups. Their role in the

EPSDT arena is to provide needed follow up diagnosis and treatment to recipients.

85. PRIVATE PRACTITIONERS LIMIT SERVICES Further, Plaintiffs

contend that most private practitioners who serve EPSDT recipients limit the number of recipients

in their practice. TDH maintains data about the number of primary care physicians who are low

volume providers (0-29 Medicaid recipients/quarter), mid-volume providers (30-99 Medicaid

recipients/quarter) and high volume providers (100+ recipients/quarter). In the quarter that began

in November, 1993 and ended in January, 1994, TDH reports there were

* 4641 low volume prirnary care physicians (0-29 recipients)

*

1422 mid-volume primary care physicians (30-99 recipients)

*

1923 high volume primary care physicians (100+recipients)

86. Plaintiffs contend that practitioners have different reasons for refusing to

see Medicaid recipients or limiting the number that they will serve. The most common reasons

are:

Reimbursement Issues· On average, Medicaid reimbursement rates are slightly

less than 50% of physician's usual and customary charges.

Patient compliance: Some practitioners complain that Medicaid recipients are less

likely than others to arrive for appointments at all, or on time. Some practitioners

also complain that recipients do not follow health care instructions.

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Case 3:93-cv-00065-RAS Document 135 Filed 02/20/96 Page 27 of 78 PageID #: 8410
Paperwork. hassle and non-responsiveness: Some practitioners complain that Medicaid paperwork is too complex and that program administration does not respond to practitioners' problems or needs. Swamping: Some practitioners argue that there is a shortage of providers to serve the Medicaid population. The shortage makes some providers reluctant to sign Medicaid agreements because they are afraid that they will be "swamped," i.e., they will end up serving the entire local Medicaid population with no help from other practitioners. Provider attitudes: Some providers do not serve Medicaid recipients because they do not want "that kind" of patient in their offices. Whether based on race, ethnicity, socio-economic status or a combination of those factors, discrimination means that some providers do not serve the Medicaid population.
87. TEXAS DEPARTMENT OF HEALTH STAFF In addition to the corps of private practitioners who serve EPSDT recipients, TDH staff provide some services to the EPSDT population. Currently, TDH employs 304 public health nurses. In the first 11 months of FY93, TDH performed 50,492 EPSDT medical check ups.
88. An adequate corps of capable providers is necessary to provide recipients with adequate access to needed services. Assuring an adequate provider pool requires recruiting new providers, retaining current providers, encouraging current providers to increase the number of recipients that they serve and facilitating training so that providers can adequately meet recipients' needs.
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89. Defendants do not agree with the facts as described by Plaintiffs. But, the parties agree and the Court orders as follows:
90. PAPERWORK SIMPLIFICATION Defendants have drafted a simplified form for EPSDT medical check ups. It will be in use no later than December 31, 1995 and possibly as early as September, 1995.
91. Defendants have created a new billing form for immunizations. It allows the tracking of recipients' progress toward completion of the full series of immunizations. The tracking system will be in place and running by January, 1996. This system will permit providers to promptly request up to date information about patients' immunization status.
92. ACCURATE REFERRAL LISTS Providers and recipients are frustrated when a recipient is referred to a provider who cannot actually meet the recipient's needs. For example, many dentists do not see children until they reach the age of 3, or even 5 years. It is not appropriate to refer 1 year olds to those dentists for initial EPSDT dental check ups.
93. Defendants will maintain updated lists of providers who serve EPSDT recipients. The lists will specify practitioners' practice limitations, if any. Defendants will provide to appropriate NHIC staff information about provider practice limitations and encourage NHIC to use the information.
94. AGENCY RESPONSIVENESS The reorganization of TDH is partly intended to improve responsiveness to providers' needs. Senior management staff in each of the 8 TDH regions will be responsible for provider relations. The number of staff assigned to this task may vary based upon the number of EPSDT recipients in each region. One responsibility
28
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Case 3:93-cv-00065-RAS Document 135 Filed 02/20/96 Page 29 of 78 PageID #: 8412
of TDH provider relations staff will be to work with providers who serve EPSDT recipients to reduce or eliminate problems that discourage providers from participating in the program.
95. NO SHOWS/MISSED CHECK UPS Recipients who do not show up for scheduled appointments frustrate providers. Providers cannot discharge their professional responsibilities toward recipients who do not come to the office. Further, missed appointments wreak havoc with providers' schedules and cost them money. Also, busy providers may feel that they are missing the opportunity to help another needy patient every time a recipient misses an appointment.
96. Outreach units will respond to providers' requests for assistance to encourage recipients to receive services when recipients a) miss appointments or b) are overdue for check ups. Defendants will inform providers that this service is available. Defendants will also explain to providers how to contact outreach units. Outreach units will begin to serve this function no later than September 1, 1995.
97. In addition, the parties believe that improvements in transportation and scheduling assistance will reduce the number of no shows. See page 57 et seq.
98. INDEXED REIMBURSEMENTS FOR MEDICAL CHECK UPS Annual cost of living adjustments that apply to reimbursement for other Medicaid services do not apply to the reimbursement rates for medical check ups. So, a separate indexing methodology is necessary to annually adjust reimbursement to providers for check ups.
99. By September 1, 1997, Defendants will implement a method to index the reimbursement rate for medical check ups in non-managed care areas. The indexing method will
29
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Case 3:93-cv-00065-RAS Document 135 Filed 02/20/96 Page 30 of 78 PageID #: 8413
cause the reimbursement to change in accordance with a methodology developed by TDH. 100. RECRUITMENT OF PROFESSIONAL SCHOOLS TO BE PROVIDERS
Not all relevant professional schools in Texas are enrolled as Medicaid or EPSDT providers. A "relevant professional school" is one that trains professionals who could serve EPSDT recipients, i.e., medical schools, dental schools, nursing schools, advanced nurse practitioner programs, etc.
101. Recruitment of professional schools is important to the functioning of the EPSDT program for at least three reasons. First, the schools can provide services to recipients and increase access to services. Second, the schools can show their students that it is important and meaningful to serve EPSDT recipients. Third, the schools can show their students that it is possible to incorporate EPSDT recipients into a practice without creating serious problems for the practitioner.
102. By May 30, 1995, Defendants will make a complete list of all relevant professional schools in Texas that are not enrolled as EPSDT providers. By October 31, 1995, Defendants will complete innovative efforts to recruit all relevant professional schools to become EPSDT providers.
103. INTENSIFIED PROVIDER RECRUITMENT EFFORTS Additional staff are needed to intensify provider recruitment efforts. The new provider relations staff in the TDH regions will assist in this effort. Further, NHIC will increase its provider relations staff to 28 (previously 16) to increase recruitment efforts.
104. TRAINING PROVIDERS To adequately serve recipients, providers must understand how EPSDT works. They must also understand EPSDT recipients' needs. Further, Plaintiffs contend that some providers' attitudes toward Medicaid recipients should be improved.
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105. Some training efforts may have the added benefit of recruiting new

providers, retaining current providers and encouraging current providers to increase the number

of recipients that they serve.

106. TDH regional provider relations staff will assist providers to receive high

quality training about topics relevant to provision of services to EPSDT recipients. They will also assist providers and their administrative staff to receive training about the administration of the

EPSDT program.

107. Training at Professional Schools Defendants will provide information and

facilitate ongoing training about Medicaid and EPSDT at all relevant professional schools in

Texas. "Relevant professional schools" include all schools that train health care providers who

could serve EPSDT recipients. The purpose of this training will be to

*

interest students in serving EPSDT recipients,

*

inculcate in students a sense of ethical or social obligation to serve EPSDT

recipients,

*

show students how to apply to become Medicaid and EPSDT providers, and

*

explain how the Medicaid and EPSDT programs work and how to get help

with problems.

108. EPSDT Training Associated with Other High Caliber Training Defendants

will make staff available to participate in ongoing training in conjunction with appropriate professional training. "Appropriate professional training" means training about issues that are

relevant to the provision of services to EPSDT recipients, such as how to conduct a medical check

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up for a teenager or how to conduct a dental check up for an infant. "Appropriate professional training" will also be of a high caliber to encourage providers to attend.
109. Training by Other Professional Organizations Defendants will make staff available to appropriate professional organizations for the provision of training about EPSDT. The training will address the administrative aspects of EPSDT and/or clinical issues that pertain to serving the EPSDT population.
110. Training by TDH and NHIC NffiC runs annual training seminars about EPSDT (medical and dental) and Medicaid. Historically, the seminars' purpose has been mostly to explain billing and address administrative problems. The seminars about the EPSDT dental program remain primarily seminars about billing. Training is conducted primarily by NffiC staff, who are not doctors or dentists. As a result, Plaintiffs contend that training has not been conducted at a level of sophistication that is appropriate or interesting for physicians, dentists or many nurses.
111. Defendants will facilitate annual NHIC training seminars about EPSDT for medical and dental check up providers. Trainers will include physicians and dentists who present information that is appropriate and interesting for their peers. Training will also address billing and administrative issues, including those that deter some providers from participating in EPSDT.
112. Training about Mental Health Services Defendants will facilitate training for professionals about the importance of and how to conduct mental health assessments for indigent children and youth. The training will further describe the recent expansions in Medicaid coverage of outpatient mental health services. These changes significantly reduce prior approval requirements for outpatient care by psychiatrists and psychologists. The changes further expand
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the categories of mental health professionals who may receive reimbursement for services provided to Medicaid recipients. Social workers, licensed professional counsellors and advanced clinical practitioners may now be paid for serving Medicaid recipients.
113. But, Plaintiffs contend that many health care providers are not aware of the recent expansions of Medicaid coverage of mental health services. As a result, they may not make appropriate referrals for full mental health evaluations or treatment when medical check ups reveal potential mental health problems. Some professionals may not even conduct mental health assessments during medical check ups out of a now-mistaken sense of futility that there will be no source of mental health care if a problem is diagnosed.
114. Plaintiffs further contend that this failure of the EPSDT program to fully address mental health problems is particularly tragic because those problems are overrepresented among the poor.
115. Mental Health Screening Tool The Texas EPSDT program provides a mental health screening tool to EPSDT medical check up providers upon request. By January 15, 1996, Defendants will convene a panel of experts in child and adolescent mental health to evaluate the tool for validity and appropriateness for use in Texas. The evaluation will be completed by April 15, 1996 and any needed changes implemented by September 1, 1996.
116. Training about Services for Teenagers The number of teenagers who are eligible for Medicaid and EPSDT will increase dramatically in the coming years because of changes in federal Medicaid eligibility standards. But, Plaintiffs contend that there is a shortage of providers to serve this group. Partly, the problem is training. Many professionals are not aware of recent significant changes in professional standards for the provision of care to teens.
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Accordingly, Defendants will facilitate training for professionals in the provision of EPSDT services to teenagers.
117. Training about New Issues As time goes by, new clinical issues will arise that are important to the provision of care to EPSDT recipients. Defendants will facilitate training in those areas.
118. Training about the Realities of EPSDT Recipients' Lives/ Cultural Sensitivity Plaintiffs contend that some health care providers have misconceptions about EPSDT recipients and their families. For example, some providers believe that all welfare families are large, when in fact the average size of AFDC families in Texas is 3 (1 parent, 2 children). Others believe that all welfare recipients are lazy cheats, when in fact many are trying to better their circumstances so that they can live without public assistance.
119. Plaintiffs further contend that misconceptions can cause providers to treat recipients disrespectfully and even with hostility. This poor relationship destroys the trust that is needed between doctor and patient. Further, it discourages recipients from returning for care except when they are sick and cannot do without. This further encourages some providers to believe that parents of EPSDT recipients are lazy or do not care about their children's health.
120. Defendants do not agree with all of the facts described by Plaintiffs. Nonetheless, Defendants will develop training modules designed to be included in other training programs about the realities of EPSDT recipients' lives to attempt to improve providers' attitudes toward recipients. These training materials will be provided to professional schools.
121. Training for Nurses TDH contracts with the University of Texas Health Sciences in San Antonio's School of Nursing, to provide training to TDH public health nurses.
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Case 3:93-cv-00065-RAS Document 135 Filed 02/20/96 Page 35 of 78 PageID #: 8418

A week long seminar trains TDH public health nurses to conduct medical check ups of EPSDT

recipients and arrange appropriate referrals when needed.

122. TDH prepares training modules for use in the seminar. TDH will

incorporate into the training modules information about

* the comprehensive nature of EPSDT services,

*

provision of services for teenagers,

*

mental health assessments, expansions in mental health services and

how to make mental health referrals,

*

cultural sensitivity, to discourage hostile attitudes about

EPSDT recipients and their families among TDH nurses, and

*

relevant new clinical issues as they arise.

123. Further, TDH will make this training seminar available fornon-TDH nurses

who wish to attend, as allowed by state law. 124. Training for Pharmacists Pharmacies play a vital role in the EPSDT

program. They supply needed pharmaceuticals and medical supplies to recipients based upon

prescriptions. 125. Plaintiffs contend that many pharmacists do not understand the broad range

of products that EPSDT covers. For example, EPSDT covers over-the-counter medications if physicians prescribe them. Over-the-counter medications are sometimes the medication of choice.

For example, benadryl used to be available only by prescription but now is available over-the-

counter. It is often the medication of choice for allergies.

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126. EPSDT also covers formula and diapers when medically necessary. Further, the program covers other supplies and equipment that are commonly sold in pharmacies.
127. Plaintiffs contend that when pharmacists do not understand EPSDT' s broad coverage, they sometimes refuse to provide needed items to EPSDT recipients absent cash payment. Since many recipients cannot afford to make payment, they go without needed products. Others pay for products that EPSDT actually covers.
128. Defendants do not agree with the facts described by Plaintiffs. 129. By January 31, 1996, Defendants will implement an initiative to effectively inform pharmacists about EPSDT, and in particular about EPSDT' s coverage of items found in pharmacies. The effort will include presentations at meetings of the Texas Pharmaceutical Association and other appropriate organizations, if possible, articles in the TPA newsletter, if possible, and at least one mail out to all pharmacists who participate in the Medieaid program. The mail out will be designed to attract pharmacists' attention, explain EPSDT coverage clearly and encourage pharmacists to provide the full gamut of covered pharmaceutical products to recipients as needed. 130. By July 31, 1996, Defendants will conduct a professional and valid evaluation of pharmacists' knowledge of EPSDT coverage of items commonly found in pharmacies. They will report the results of the evaluation to Plaintiffs by September 1, 1996. If the parties agree that pharmacists' understanding of the program is acceptable, Defendants will continue the initiative described above to inform pharmacists about EPSDT. If the parties do not agree, or if pharmacists' understanding is unacceptable, Defendants will conduct an initiative to
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orally inform pharmacists about EPSDT's coverage. Plaintiffs will not umeasonably disagree

about whether pharmacists' understanding is acceptable.

131. Training Scholarships When TDH sponsors training programs relevant to

EPSDT, it will arrange scholarships to enable needy providers to attend.

132. "PUBLIC" PROVIDERS Many EPSDT recipients receive services from

providers who work for governmental entities, such as local health departments or hospital

districts. Large hospital districts in major urban areas are sometimes associated with publicly

funded health science centers. Then, recipients receive some services from medical and other

health professional students under the supervision of professors.

133. Other recipients receive services from non-profit agencies that receive public

funds, such as migrant and conununity health centers, rural health centers and mental health

clinics. Further, many teenaged girls who are EPSDT recipients receive services from family

planning agencies, such as Planned Parenthood.

134. Public Providers: Barriers to Participation Plaintiffs contend that unique

problems prevent public and semi-public agencies from participating fully in EPSDT.

*

For example, the Bexar County Hospital District runs a large

outpatient center near downtown San Antonio. The center's pediatric drop in clinic

handles more than 50,000 visits each year. Most patients are indigent children;

many are EPSDT recipients.

*

An institutional barrier prevents the drop in clinic from conducting

EPSDT medical check ups. Bexar County Hospital District has its own laboratory.

The drop in clinic is set up to send specimens to that laboratory and to receive and

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Case 3:93-cv-00065-RAS Document 135 Filed 02/20/96 Page 38 of 78 PageID #: 8421

file test results when they are returned. The drop in clinic is not set up to send

specimens to the TDH laboratory in Austin1 or to file results when the Austin lab

returns them by mail. So, the drop in clinic does not provide EPSDT medical

check ups. Further, although the local laboratory can provide test results within

1 day, the Austin laboratory cannot.

*

Another example involves family planning agencies. Since family planning

agencies are the only place where some teenaged girls go for health care, they

could be an important link to provide EPSDT services to this group of recipients.

But, some family planning agencies have not enrolled to provide EPSDT medical

check ups. Apparently, their concern is that they cannot provide referrals to the

various specialists whose services might be required after an EPSDT medical check

up finds a problem.

*

Further, Medicaid uses a special payment method to reimburse several

categories of public providers, such as migrant and community health centers and

"look alike" clinics. The Medicaid program pays them on a cost basis. The result

is that their regular reimbursement exceeds EPSDT's $40 reimbursement for

EPSDT medical check ups. So, the clinics sometimes do not bill for EPSDT

medical check ups. This billing problem prevents Defendants from properly

counting the number of check ups performed. It will also wreak havoc with the

1 Currently, providers must send all EPSDT medical check up specimens to the TDH laboratory in Austin and await results. The wait is generally 7-10 days.
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Case 3:93-cv-00065-RAS Document 135 Filed 02/20/96 Page 39 of 78 PageID #: 8422
outreach program, since the trigger for outreach services is the absence of a bill for a check up.
135. Defendants do not agree with the facts described by Plaintiffs. 136. Defendants will assist public providers to fully serve EPSDT recipients. The TDH regional provider relations staff will be responsible for this effort. They will resolve the problems that prevent recipients from receiving full EPSDT services from public providers. For example, together with Bexar County Hospital District, Defendants will determine if the local laboratory can provide adequate laboratory services. If feasible, Defendants will develop a system to allow Bexar County Hospital District to perform EPSDT laboratory tests locally. Similarly, Defendants will work with family planning agencies to develop networks of providers who are willing to accept referrals of EPSDT recipients for specialty care. Defendants will develop strong links between TDH's provider relations staff and family planning clinics to facilitate referrals. Further, Defendants will resolve issues concerning the provision of EPSDT check ups by providers who receive cost based reimbursement. 137. If possible, TDH regional provider staff will assess each public providers' need for training in areas relevant to the provision of services to EPSDT recipients. Regional staff will facilitate the receipt of training when appropriate. Training may be provided by TDH staff, NHIC staff and/or continuing education programs. Clinical training for professionals will emphasize the comprehensive nature of EPSDT services, the provision of services to teenagers and mental health issues (mental health assessments, referrals and EPSDT's expanded coverage of mental health services). Further, as new clinical issues relevant to the provision of EPSDT services arise, Defendants will emphasize them.
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138. In addition, regional provider staff will facilitate training about EPSDT and how it works for all relevant public provider staff. Relevant staff may include anyone from the executive director through to the receptionist.
139. Recruitment of Public Health Care Agencies By May, 1995, Defendants will determine which Medicaid family planning agencies are not enrolled to provide EPSDT medical check ups. By January, 1996, Defendants will conduct an initiative to encourage all family planning agencies that serve Medicaid recipients to enroll as EPSDT medical check up providers. The effort to recruit family planning clinics to provide EPSDT medical check ups will be coordinated with TDH's family planning staff.
140. Defendants will further continue to make efforts to enroll all nonparticipating public providers.
141. Further, TDH will recruit independent school districts to provide EPSDT medical and dental check ups and coordinate other needed services. TDH will emphasize the development of centers to address the needs of pregnant teenagers in school districts that are interested in developing this resource for their students.
142. TDH will cooperate with Head Start programs to ensure that Head Start students who are EPSDT recipients have access to EPSDT services.
DENTAL
143. Defendants must provide periodic dental check ups and needed dental services to relieve pain, restore teeth and maintain dental health for EPSDT recipients. 42 U.S.C.
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§ 1396d(r)(3). The Texas EPSDT periodicity schedule provides that dental checks ups begin at

age 1 and continue every 6 months thereafter.

144. Advances in modern dentistry mean that children can now reach adulthood

with no dental decay. Research shows that many children who have adequate access to ongoing dental care actually grow up free of cavities. But, research also shows that the benefits of modern dentistry are not available to many indigent children. As a result, indigent children, including EPSDT recipients in Texas, frequently suffer from dental disease that proper care could prevent.

145. Indigent children and youth frequently report that dental problems are

among their most pressing health care concerns.

146. The parties agree to and the Court orders the following improvements to

the EPSDT dental program: 147. Improvements in outreach for dental check ups are described on pages 9-10

and 16.

148. BABY BOTTLE TOOTH DECAY To help to prevent Baby Bottle Tooth

Decay (BBTD), Defendants will conduct outreach to families with EPSDT recipient infants, beginning in January, 1996. BBTD is a preventable dental disease of young children. It causes rampant decay of the teeth, sometimes to the extent that the young child's upper front teeth are

completely gone. Exhibit 5. BBTD is associated with increased decay in the baby and adult teeth. It is also associated with fever, infection, eating problems and in some instances failure to

thrive.

149. BBTD is partially caused by the transfer of bacteria from the mouths of

adults (frequently mothers) to the mouths of infants or toddlers. For example, bacteria transfer

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can occur when an adult tastes a spoonful of formula to determine its temperature and returns the spoon to the warming saucepan.
150. The fairly common practice ofletting young children sleep with a bottle that contains sugar (milk, juice, etc.) facilitates the development of BBTD. Sugary fluids nourish the bacteria that cause BBTD.
151. Since many young children cannot sit still for drilling and other procedures in the dental office, BBTD frequently requires outpatient hospital treatment under general anesthesia. This treatment is expensive and subjects young recipients to health risks that could be avoided.
152. Since they are EPSDT recipients, Medicaid recipients who are teenage mothers are themselves eligible for dental services.2 One purpose of this phase of outreach will be to encourage teenaged mothers to get dental check ups and treattnent, if needed, for themselves promptly after the birth of their infants. Mothers' treattnent should be fmished, if possible, before infants' teeth begin to erupt at about 6-8 months. This dental care will benefit the mother. It was also benefit her infant. If the mother's decay is treated, she may avoid passing on bacteria to her infant and so avoid BBTD.
153. Age appropriate outreach will also address the prevention of BBTD. See pages 10-11, 13, 19.
2 The Texas Medicaid program does not cover most dental services for recipients who are not eligible for EPSDT, i.e., adults.
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SEALANTS

154. Dental Scans TDH may at its option perform dental scans for recipients

who are in 2d or 3rd and 6th or 7th grades. Dental scans are brief examinations of the mouth by

a dentist. They will be performed by TDH public health dentists or by dentists who contract with

TDH. Dental scans will

*

inform recipients about their apparent dental health and need for dental

care;

*

help to arrange dental care for recipients;

*

encourage the placement of sealants by informing recipients about them

in a timely manner; and

*

place sealants when recipients do not have access to another dentist who

makes sealants available.

155. Sealants are a modern development in dentistry. They are plastic protective

coverings that prevent decay on the chewing surfaces of molars. Sealants are appropriate when

teeth are prone to decay but decay has not yet started or is in its very early stages.

156. After proper preparation of the tooth, a sealant is painted onto the tooth

surface and allowed to dry, much like clear nail polish. The sealant thus prevents the tooth from

contacting substances that cause decay. To be effective, sealants must be placed within 12 months

of the eruption of molars in children's mouths. Generally, sealants should be placed on the first

permanent molars when children are about 7 years old (2d grade) and on the second permanent

molars when children are about 13 years old (7th grade).

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157. Many Texas EPSDT recipients do not receive sealants in a timely manner. Accordingly, TDH's scan program is aimed at children during the ages when sealants should be placed, to encourage use of this protective treatment.
158. Dental scans are not a substitute for full dental check ups. The scan program will be carefully designed and implemented to encourage recipients to receive full dental exams every 6 months. Recipients will be informed if they need dental care immediately, soon or within 6 months. The program will further assist recipients to schedule dental check ups after scans are completed.
159. It is preferable for recipients to receive sealants in the context of dental check ups as part of comprehensive dental care. But, when arrangements for sealants cannot be made with local dentists, TDH public health dentists should provide sealants for recipients who want them, if dentally appropriate.
160. Elimination of Age Limit Current EPSDT regulations allow the placement of sealants for recipients younger than 14 years. Although most recipients who require sealants are in this age group, some recipients require sealants at other ages. The limitation based on age is therefore inconsistent with the EPSDT requirement that services be available whenever necessary. 42 U.S.C. § 1396d(r)(5). By September 30, 1995, Defendants will cover all necessary sealants regardless of the recipient's age.
161. Training for Providers By April 30, 1995, Defendants will identify all dentists who provide services to EPSDT recipients but provide no or few sealants. By May 31, 1995, the TDH Dental Director will write to dentists whose practices could reasonably include sealants about sealants. The Dental Director will provide current information about a) the benefits
44

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of sealants, b) how to use sealants and c) EPSDT reimbursement for sealants. Letters will be sent to dentists who regularly provide sealants and dentists who do not. By May 31, 1996, Defendants will review billing records to determine if the number of dentists who regularly provide sealants has increased. Dentists who do not provide sealants will receive further targeted outreach information about sealants unless their specialty indicates that they would not provide this service. PROVIDERS
162. This settlement agreement discusses many issues pertaining to the recruitment, retention and training of providers of dental care. See page 30 et seq. The following provisions also pertain to dental providers:
163. Provider Participation Reports Accurate reports about provider participation are important to the administration of the EPSDT program. They allow assessment of provider trends and strategies for increasing provider participation.
164. Defendants maintain records of the number of dentists who have provided services to at least 1 EPSDT recipient in the past 12 months.
165. Beginning no later than October 31, 1995, Defendants will maintain reports of the number and percent of participating dentists who see 0-29, 30-99 and 100+ EPSDT recipients every 3 months. The format of these reports will be similar to those already prepared for medical doctors.
166. Audits of Dental Practices Defendants audit a small number of dental practices to determine if recipients receive proper services. Audits can result in sanctions such as a request for repayment of funds paid by Defendants for services to recipients.
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167. The professional conduct of audits is important to EPSDT recipients. Plaintiffs contend that unprofessional conduct of audits may cause dentists to stop serving EPSDT recipients. Accordingly, Defendants will fmalize policies or rules for the audits by September 30, 1995. Further, they began a 3 month moratorium on audits on April1, 1995.
168. Use of Current Professional Standards Plaintiffs contend that Defendants use outdated standards for approval of some dental care for EPSDT recipients. The use of outdated standards poses problems for recipients because a) they cannot get services that meet current professional standards and b) dentists become frustrated with NHIC and may stop providing services to recipients.
169. Defendants are committed to the use of appropriate professional standards in the EPSDT program. They will develop standards that comport with professional judgment, based upon consultation with appropriate experts, including the chairs of the Departments of Pediatric Dentistry in Texas. ACCOUNTABILITY /MEASUREMENT
170. Check Ups Each recipient is supposed to receive a dental check up every 6 months, starting at 1 year.
171. Defendants do not maintain records of the number of recipients who receive 1 or 2 dental check ups each year. The parties agree that by September 30, 1996, Defendants will prepare a report of the number and percent of recipients who receive 1 dental check up/year and 2 dental check ups/year. They will prepare similar reports every year.
172. By December 1, 1996, the parties will agree on expected increases in the number and percent of recipients who receive 1 and 2 dental check ups/year.
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173. Recipients' Health A reporting system to determine whether recipients receive all needed follow up diagnosis and treatment would be so cumbersome that it would collapse under its own weight. Accordingly, Defendants will report on dental health outcomes in the EPSDT population. If the EPSDT dental program works, the incidence of dental disease in the EPSDT population should decrease over time, because most dental disease can be prevented. But, in the interim, dental disease may appear to increase because many recipients who previously had no care will begin to receive care as a result of increased outreach. It is likely that they will have significant dental disease because they have not received treatment in the past.
174. By March 1, 1996, Defendants will arrange for a study to assess the dental health of the EPSDT population. The study will assess changes over time. At a minimum, the study will evaluate improvements in the number and percent of recipients who 1) have no cavities, 2) have no untreated cavities and 3) require hospital treatment for dental problems.· The method will be subject to Plaintiffs' approval. Plaintiffs' approval will be limited to whether the method for the study is professional and valid. Plaintiffs will not unreasonably withhold approval. If they approve of the method, Plaintiffs may still offer suggestions about the proposed method. Defendants may accept or reject Plaintiffs' suggestions.
SPECIAL GROUPS
175. Several groups require special attention so that they can receive the full benefits of the Texas EPSDT program. This list is not exhaustive. The parties may agree at a later date that other groups should be included. FARMWORKERS
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Case 3:93-cv-00065-RAS Document 135 Filed 02/20/96 Page 48 of 78 PageID #: 8431

176. Texas is home base to about 500,000 migrant farmworkers. The number

who receive Medicaid or EPSDT benefits is unknown but the parties agree that many EPSDT

recipients are children of migrant farmworkers.

177. Plaintiffs contend that

*

although migrant farmworkers share many characteristics,

there is also considerable variation within this population.

Generally, migrant farmworkers leave their home base for the north

in the spring after the school year ends and return before the school

year begins in the fall. But, within these parameters, there is

considerable variation in travel schedules.

*

There is also significant variation in living arrangements.

Some farmworkers live in communities that are composed

primarily of other farmworkers but others do not.

*

The children of migrant farmworkers are more likely than

many others to be in ill health. Unhealthy working and living

conditions, dire poverty, poor nutrition, lack of education and

illiteracy contribute to their poor health.

*

Despite their increased need for health care, farmworkers

often do not receive services that they require. First, they often live

in areas where health care providers are few and far between.
* In addition, migrant farmworker families leave Texas during

the summers to work in other states. This migration adds to their

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Case 3:93-cv-00065-RAS Document 135 Filed 02/20/96 Page 49 of 78 PageID #: 8432
health care difficulties. First, recipients may lose Texas Medicaid eligibility when they leave the state. As a result, some recipients face delays in receipt of care upon return to Texas in the fall, because they are not eligible for benefits. Further, given their hectic travel schedules when out of Texas, some cannot schedule health care appointments during the summer. When farmworkers move from place to place, they sometimes have trouble locating new health care providers who are willing to serve them. Also, it is sometimes virtually impossible to determine what services recipients receive because medical records do not follow recipients from state to state. Finally, the physical and emotional stress of long distance travel exacerbates some migrants' health care · problems. 178. The purpose of outreach to recipients who are children of migrant farmworkers will be to help them to receive as many needed EPSDT services as possible while they are in Texas. To accomplish this goal, the parties agree and the Court orders: 179. Defendants will identify a) the counties where recipients who are the children of migrant farmworkers live during part of the year and b) approximately when farmworker families return to those counties. 180. In 1995, Defendants will begin this program in the Lower Rio Grande Valley. Later, they will expand appropriate outreach efforts for farmworker families to other areas of the state as needed.
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181. Defendants will make efforts to help farmworker families to utilize EPSDT benefits promptly upon return to Texas. These efforts will include door to door outreach in conununities where migrant farmworkers live.
182. When migrant farmworkers apply for Medicaid benefits on behalf ofEPSDT eligible children, the TDHS eligibility worker will determine if the applicant would like further information about EPSDT or help to schedule appointments.
183. When outreach units receive information about the identity of migrant farmworker recipients who request outreach services, outreach units will give priority status to those recipients. They will provide outreach as quickly as possible. Outreach information will encourage this group of recipients to receive as many needed services as possible before they move on again. RECIPIENTS IN MANAGED CARE
184. Managed care is a health care system where managed care organizations are paid to manage patients' care appropriately. The Texas Medicaid program currently uses 2 managed care models.
185. In capitated fee models, managed care organizations are paid flat fees to provide all or a range of services for their patients. Since organizations are paid a flat fee to serve their patients, the theory is that they provide cost effective care to avoid expensive care for illnesses that could be prevented. A criticism of this theory is that managed care organizations may not provide needed treatment to save money.
186. In primary care case management models, individual health care providers are paid a small monthly fee to arrange referrals and other services that their patients need. In
50

Case 3:93-cv-00065-RAS Document 135 Filed 02/20/96 Page 51 of 78 PageID #: 8434
this model, providers are still paid a fee for services that they provide, such as check ups, diagnosis and treatment.
187. The Texas Medicaid program began managed care pilot projects in 1993. The pilot projects are in Travis County and the tri-county area of Galveston, Chambers and Jefferson Counties. One Travis County pilot project uses a full capitation fee structure. The second uses a partial capitation fee structure, so the managed care organization is at risk for the costs of all care except hospital care. The tri-county project uses a primary care case management model.
188. The Texas legislature considered the expansion of managed care for the Medicaid population in the 1995 session. Ultimately, the legislature passed and the Governor signed SB 10, SB 600, SB 601 and SB 602. Exhibit 6. The legislation requires the Texas Medicaid program to increase the number of recipients who are served by managed care organizations. Most Texas Medicaid recipients will receive services from managed care organizations within a few years.
189. Regardless of their disagreements about the merits of managed care, the parties agree that managed care must be implemented in a manner that benefits EPSDT recipients and does not harm them. For this reason, the parties agree and the Court orders that:
190. EPSDT recipients served by managed care organizations are entitled to timely receipt of the full range of EPSDT services, including but not limited to medical and dental check ups.
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Case 3:93-cv-00065-RAS Document 135 Filed 02/20/96 Page 52 of 78 PageID #: 8435
191. TDH will assure by various means that the number and percent of EPSDT patients in each managed care organization who receive all medical and dental check ups when due and information for outcomes research as needed is accurately collected.
192. TDH will assure by various means that managed care organizations provide medical and dental check ups to newly enrolled recipients no later than 90 days after enrollment except when recipients knowingly and voluntarily decline or refuse services. Managed care organizations will also have the capacity to accelerate services to the children of migrant farmworkers to accommodate their special circumstances. TDH will also assure medical and dental check ups in a timely manner to all recipients.
193. TDH will assure by various means that managed care organizations cooperate with outreach units so that recipients who miss medical and/or dental check ups receive prompt services.
194. TDH will assure by various means that managed care organizations arrange appropriate training for all health care providers and their staff who serve EPSDT recipients as authorized by SB 601. All will be trained about program requirements relevant to their responsibilities, including the relevant terms of this settlement.
195. Recipients who receive services from managed care organizations are entitled to challenge decisions made by managed care programs by fair hearings and otherwise as authorized by SB 601.
196. The fmancial soundness of managed care organizations is important to recipients to assure that their source of care does not disappear because of financial problems.
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Case 3:93-cv-00065-RAS Document 135 Filed 02/20/96 Page 53 of 78 PageID #: 8436

Defendants will contract only with managed care organizations that are financially sound, as

required by SB 10. 197. TDH will assure by various means that managed care organizations have

an adequate supply of appropriate providers who can serve EPSDT recipients (including specialists) located conveniently so that recipients do not face unreasonable 1) delay scheduling

appointments, 2) delay waiting for appointments once at the office or 3) travel times to get to the

office as authorized by SB10 and SB 600.

198. Defendants will assure a system that allows recipients to enroll promptly

with a new managed care organization, if it exists, when recipients move from one geographic

area to another within Texas. 199. Managed care organizations will be subject to independent evaluation of

their patients' health outcomes, patients' satisfaction and process measures, including but not

limited to the number and percent of EPSDT recipients who receive all medical and dental check

ups when due.

TEENS

200. Plaintiffs contend that teens face many complex health problems, which

frequently go unresolved. Common problems include, eating problems (overweight, underweight,

anorexia, bulimia, etc.), substance abuse (alcohol, illegal drugs, steroids), mental health problems, sexually transmitted diseases and unwanted pregnancy. Many of teens' health problems are

embedded in psycho-social problems, which make the problems worse and treatment more

difficult.

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Case 3:93-cv-00065-RAS Document 135 Filed 02/20/96 Page 54 of 78 PageID #: 8437

201. Federal law requires Medicaid programs to expand eligibility categories to cover an increasing number of young people to age 19. States must provide Medicaid to applicants born after September 30, 1983 whose incomes do not exceed 100% of tbe federal poverty guidelines. In essence, eligibility at the 100% of poverty level is inching upward in age

as tbe years go by. 202. The eligibility expansion has had a significant impact in Texas, where many
older applicants only receive Medicaid benefits if they also qualify for Aid to Families with Dependent Children. The income cut off for AFDC is about 20% of tbe federal poverty

guidelines. 203. As a result of tbe expansion, tbe number of teenagers who are eligible for
Medicaid and EPSDT is about to balloon in Texas. But, to date, the participant ratio (receipt of medical check ups) for 15-20 year olds3 are as follows:

FY91

3%

FY92

4.34%

FY93

5.65%

204. To better serve tbe teenaged population, tbe parties agree and the Court

orders: 205. Defendants will use innovative means to provide EPSDT serv1ces to
teenagers. For example, Defendants will provide or arrange for services in locations where

These data are taken from Defendants' Annual EPSDT Participation Report (HCFA Form 416) submitted to tbe federal government. Data for 13 and 14 year olds are combined with data for younger children.
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Case 3:93-cv-00065-RAS Document 135 Filed 02/20/96 Page 55 of 78 PageID #: 8438
teenagers go, when possible. TDH regional staff will determine locations where teens can be found (schools, recreation centers, homeless shelters). They will further determine if the locations are suitable for provision of EPSDT services, i.e., sufficient privacy, room, host organization support, etc. When possible, Defendants will provide services at those locations, either by use of properly trained TDH nurses or by contract with other EPSDT providers who can serve teens well.
206. Plaintiffs contend that some teenaged girls get health care only at family planning agencies. There are 130 family planning agencies in Texas that accept Medicaid. Some of them do not provide EPSDT medical check ups, even though they are able to do so. As a result, teenaged recipients do not get EPSDT check ups and referrals. Efforts to recruit family planning agencies are described in pages 38, 40.
207. Efforts to inform teens and their parents about EPSDT will address the complex privacy and consent issues involved. Parents have the legal right and responsibility to consent to medical treatment for their teens. The problem arises when teens face sensitive health care problems. The mere need to inform parents to get consent prevents some teens from receiving care because they do not want their parents to know about touchy problems.
208. Each family strikes the balance between parental knowledge/consent and teen privacy differently. Defendants' role is only to bring the issue to recipients' attention so they can resolve it together with teens' health care providers.
209. Written outreach information for teens is described in pages 9-11. Efforts to provide dental care to teenaged mothers are described in page 42. Efforts to train providers about teenagers' unique needs are described in page 33. In addition, the reevaluation of the
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Case 3:93-cv-00065-RAS Document 135 Filed 02/20/96 Page 56 of 78 PageID #: 8439

mental health assessment tool and provider training about mental health issues is described in page 33. Although mental health is relevant to EPSDT recipients of all ages, it is particularly relevant

to teens. RECIPIENTS UNDER THE SUPERVISION OF THE TEXAS DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES
210. The Texas Department of Protective and Regulatory Services is the agency that supervises children who have been abused or neglected. In some instances, TDPRS removes children from their families. Many of the removed children are eventually reunited with their families. Research shows that this population of children and youth are more likely than others

to have health problems. 211. Many children under TDPRS supervision are EPSDT recipients. To

provide needed services for them, the parties agree and the Court orders: 212. TDH and TDPRS will present a Memorandum of Understanding for
Plaintiffs' approval by August 31, 1995 and to the Court by October 1, 1995. The Memorandum

of Understanding will

*

provide for appropriate training about EPSDT to parent(s) or adult

caretakers before recipients are reunited with their families, including explanation

of EPSDT in parenting classes for the families, and

*

establish a method to report the number and percent of EPSDT recipients

under the supervision of TDPRS who receive all of their medical and dental check

ups when due, and

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Case 3:93-cv-00065-RAS Document 135 Filed 02/20/96 Page 57 of 78 PageID #: 8440

*

assure that all EPSDT recipients under the supervision of TDPRS receive

all medical and dental check ups when due, and

*

establish procedures to refer EPSDT recipients, in a coordinated manner,

to appropriate case managers when needed upon recipients' release from TDPRS

supervision. The case management portion of the TDH/TDPRS agreement may

be delayed until the parties reach agreement about case management. See page 65

et seq.

TRANSPORTATION/SCHEDULING

213. TRANSPORTATION Plaintiffs contend that many EPSDT recipients do

not receive needed services simply because they have no way to get there. They further contend

that transportation problems are a significant barrier that impede the Texas EPSDT population's

access to health care services.

214. Current Program Defendants must provide transportation assistance when

recipients need it. 42 C.P.R. §§ 431.53; 440.170. Defendants provide several forms of

transportation assistance, including:

*

15 cents/mile reimbursement for rides provided by volunteers including

family members;

*

fixed route transportation such as vans that run circuits in rural areas or

tokens to use public transportation in urban areas;

*

demand responsive transportation for recipients who cannot use fixed route

transportation or when fixed route transportation is not available;

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Case 3:93-cv-00065-RAS Document 135 Filed 02/20/96 Page 58 of 78 PageID #: 8441

*

intercity buses;

*

airplanes and trains.

215. Contracting organizations provide many transportation services, such as van

service and pre-payment of mileage fees in some parts of the state. 216. The transportation program also pays for hotels and meals when recipients
must travel overnight to needed treatment. The current reimbursement for meals is $15/day for adults and $10/day for recipients under the age of 12. The transportation program covers the cost of hotels and meals for the recipient and an attendant when needed. The attendant may be a

family member.

217. NHIC reimburses for ambulance transportation. 218. In FY94, the transportation budget increased from $8 million to $12 million.

The legislature appropriated $18,069,431 for the transportation program in FY96 and

$20,341,204 in FY97. 219. Plaintiffs contend that in the past, the Texas Medicaid Transportation

program has not served all recipients well. They further contend that

*

according to Defendant Friedholm, there is "universal dissatisfaction" with

the program. The system creates problems for recipients because sometimes rides

arrive at the wrong time or even on the wrong day. Recipients sometimes have to wait for very long times to be picked up. Trips can take several times as long as they would by other means. These problems frustrate some recipients to the point

that they no longer want to try to use Medicaid transportation services.

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Case 3:93-cv-00065-RAS Document 135 Filed 02/20/96 Page 59 of 78 PageID #: 8442

*

As a result of problems caused by transportation difficulties, some health

care providers do not serve Medicaid patients, including EPSDT recipients. Some

limit the number of recipients who they serve. Some perceive that Medicaid

recipients, including EPSDT recipients, are often late for appointments or do not

show up at all. This wastes providers' time and creates scheduling problems in

their offices.

*

Further, to minimize scheduling problems, some providers schedule all of

their Medicaid patients at one time, for example, the third Thursday of the month.

Then, they double or triple book appointments to have a full schedule in spite of

"no shows." This means that recipients have to wait a long time in overcrowded

waiting rooms to get in to see the doctor.

*

Also, because of transportation problems, some recipients arrive early for

appointments or wait in providers' offices for long times after the appointment is

over. This crowds providers' offices and poses problems for office staff and other

patients.

*

Transportation services are essential to 1) get recipients to needed services

and 2) alleviate scheduling and overcrowding problems to increase providers'

willingness to serve EPSDT recipients. 220. Effective transportation assistance is an essential component of the EPSDT
health care delivery system. Therefore, the parties agree to and the Court orders the following

improvements to the Medicaid transportation program:

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Case 3:93-cv-00065-RAS Document 135 Filed 02/20/96 Page 60 of 78 PageID #: 8443

221. Recipients may request transportation assistance by 1) calling the

transportation office 2) visiting TDH offices or 3) with help from outreach workers or case

managers when they meet with recipients.

222. TDHS Informing TDHS eligibility workers will briefly describe the

transportation program, including the mileage reimbursement option, during each initial eligibility

interview. Oral outreach staff will describe the transportation program in detail in each outreach

sessiOn.

223. Annual Assessments and Corrective Action Plans Defendants will conduct

annual assessments of the effectiveness of the transportation program. The first assessment will

be completed by March, 1996.

224. The assessments will be specific and comprehensive enough to validly

evaluate the transportation program in each Standard Metropolitan Statistical Area· and the rural

area in each of the 8 TDH regions. The assessments will determine where services are needed,

the amount of services that are needed and if existing services meet the need for transportation

assistance.

225. Each assessment will evaluate:

*

unmet need for transportation assistance;

*

recipient and provider satisfaction with the transportation

program;

*

the reasons for recipient and provider dissatisfaction with the

transportation program;

*

whether transportation times are reasonable; and

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Case 3:93-cv-00065-RAS Document 135 Filed 02/20/96 Page 61 of 78 PageID #: 8444

*

whether recipients missed or did not schedule EPSDT

services because of transportation problems, including those

attributable to medical transportation program deficiencies.

226. Over time, the results of the evaluations will improve. 227. Defendants' method for evaluating the transportation system will be subject

to Plaintiffs' approval. Plaintiffs' approval will be limited to whether the method is professionally

acceptable and valid. Plaintiffs will not unreasonably withhold approval. They will submit their decision to Defendants within 45 days of receipt of the proposed method. If Plaintiffs approve the method, they may still offer suggestions. Defendants may accept or reject the suggestions.
228. Defendants will take corrective action wherever the assessment indicates that

transportation services are inadequate. "Inadequate" means problem(s) exist that Defendants can

reasonably be expected to correct. 229. Upon completion of each annual transportation assessment, the parties will

determine a method to decide where corrective action is needed, how quickly it is needed and

what actions will be taken. 230. Urgent Requests Plaintiffs contend that transportation staff sometimes do

not meet - or even attempt to meet - urgent requests for services or requests to reschedule transportation services. Defendants will train transportation staff to respond appropriately in these

circumstances by July, 1995.

231. Mileage Reimbursement Plaintiffs also contend that the mileage

reimbursement option is little understood and underutilized. Plaintiffs contend that the advantages

of the mileage reimbursement option are:

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*

it preserves EPSDT recipients' dignity by allowing them to

travel to health care by the same means that most others use; and

*

EPSDT recipients can arrive and leave on time, to the

benefit of recipients and health care providers.

232. Defendants agree to increase the mileage reimbursement rate (currently 15

cents/mile). Beginning September 1, 1995, the rate will be the same as the reimbursement rate for state employees (currently 28 cents/mile). The Medicaid reimbursement rate will change

whenever the state employee reimbursement rate changes in the future. 233. Plaintiffs contend that another problem with the mileage reimbursement
option is delays in receipt of reimbursement. Since many volunteer drivers are themselves

indigent, they cannot afford to wait several weeks or more to be paid back. 234. To improve the mileage reimbursement process, by September 1, 1995,

Defendants will determine:

*

in which TDH regions advance payments are not available, if any, and

why;

*

whether advance payment can be made available throughout the state;

*

what methods can be used to speed up the reimbursement process for

mileage reimbursement requested after trips occur.

235. By October 31, 1995, the parties will attempt to agree on a method to

implement improvements to the administration of the mileage reimbursement program. 236. In addition, Defendants will effectively inform health care providers about

the mileage reimbursement option so that they can refer patients when appropriate.

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237. Revision of Regulations Current regulations only provide transportation services to the closest health care provider. Plaintiffs contend that this limitation is inconsistent with allowing recipients to develop good working relationships with providers because it limits recipients' choice of providers.
238. Defendants will establish new transportation regulations that cover reasonable transportation to establish or maintain an ongoing relationship with a health care provider. The regulations will be finalized by September 30, 1995 absent unusual controversy in the rulemaking process.
239. SCHEDULING ASSISTANCE Plaintiffs contend that many recipients do not receive EPSDT services because they cannot locate a health care provider who is willing to serve them. Many cannot schedule appointments because they do not speak English or have a telephone.
240. Defendants must help recipients to schedule appointments. 42 U.S.C. § 1396a(a)(43(B);(C). This duty is deceptively simple. It includes the often difficult task of finding a health care provider who will serve the recipient. It also includes assisting recipients who have communication problems such as lack of a telephone or language barriers.
241. Toll Free Help Lines TDH has toll free telephone numbers for recipients to call for help with scheduling appointments. But, Plaintiffs contend that in the past, some recipients have been ill served by these numbers. For example, some recipients have called a toll free number only to be told that the staff can help with transportation but cannot help to schedule an appointment. This does not help recipients who do not already have appointments or who cannot schedule appointments because they do not know providers who will see them.
63

' . • >,_ '~ -·-· ~
Case 3:93-cv-00065-RAS Document 135 Filed 02/20/96 Page 64 of 78 PageID #: 8447
242. By September 1, 1995, TDH will reevaluate the use and operation of its toll free numbers to improve scheduling assistance for recipients. Toll free number staff will be familiar with local resources and needs.
243. The toll free numbers to request transportation and scheduling assistance will either be combined or linked. When recipients call to ask for help with transportation, they will also be able to get help with scheduling (or vice versa). This system will be more hospitable and helpful to recipients than the past system.
244. When recipients ask for help to fmd a provider, staff will provide the name, address and telephone number of at least 1 provider of the appropriate specialty in a convenient location. Defendants recognize that recipients have freedom to choose among providers. Staff will determine if recipients wish the names of more than 1 provider. If so, staff will provide additional names if providers exist. Providers of the appropriate specialty in a convenient location will be identified, if possible, on a rotating basis. When recipients receive services through managed care arrangements, they will be notified of their freedom to choose a primary care physician of their choice at enrollment.
245. When recipients ask for help in scheduling appointments, TDH staff will provide information about providers as described in the above paragraph. Staff will determine if recipients wish assistance with scheduling appointments and/or transportation. If so, staff will provide assistance.
246. Self Correction/Provider Shortages TDH regional staff are to notify central office provider relations staff about inadequate supplies of providers. For this purpose, "inadequate supply of providers" means that staff cannot satisfy a recipient's request for a needed
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Case 3:93-cv-00065-RAS Document 135 Filed 02/20/96 Page 65 of 78 PageID #: 8448
provider or providers. Central office staff will make extra efforts to recruit providers in shortage areas.
247. Standards for Toll Free Help Lines (Trans.portation. Scheduling Assistance and Other) Toll free numbers for EPSDT recipients will be staffed sufficiently by well trained personnel. Each recipient will receive prompt service by a person who is knowledgeable, helpful and polite. All calls will be answered promptly absent equipment failure. Equipment will be adequate so failure results only from circumstances beyond Defendants' control, such as bad weather. TDH will make reasonable arrangements to meet the needs of recipients who do not speak English. No calls may be "answered" by a tape recording during working hours except in unusual circumstances.
CASE MANAGEMENT
248. EPSDT programs must provide case management to each recipient if needed. Since case management is a service that Medicaid programs may cover, 42 lf.S.C. §§ 1396d(a)(l9); 1396n(g), Medicaid programs must cover it for EPSDT recipients if medically necessary. 42 U.S.C. § 1396d(r). Texas currently provides case management to several groups of recipients but not all recipients when needed.
249. Case management is divided into two categories - administrative case management and medical case management.
250. ADMINISTRATIVE CASE MANAGEMENT Administrative case management includes a broad range of functions needed for the efficient administration of the Medicaid program. Some aspects of administrative case management directly assist recipients,
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Case 3:93-cv-00065-RAS Document 135 Filed 02/20/96 Page 66 of 78 PageID #: 8449

such as a) accepting and processing applications for benefits, b) EPSDT outreach and c) scheduling transportation or appointments. Other aspects of administrative case management do not directly benefit recipients, such as utilization review activities to determine if health care

providers have properly submitted claims for payment. 251. The federal government generally reimburses state Medicaid programs for
50% of the costs of administrative case management. The federal reimbursement rate is 75% for administrative case management services that must be performed by health care professionals.
252. Administrative case management functions are generally performed by state

agency staff or by other agencies that contract with the state. 253. MEDICAL CASE MANAGEMENT Medical case management directly

benefits recipients. When medically necessary, this service assists recipients to gain access to needed medical, social, educational and other services. It helps to coordinate services and provide

continuity of care. 254. Medical case management is an integral part of the health care of children

when needed. Generally, either nurses or social workers provide these services at the direction of an appropriate health care provider or when need is properly documented. Case management is provided in consultation with the child's medical home, if it exists, and other relevant

providers.

255. Medical case management involves two levels of sophistication. Some

recipients have serious and complex health care problems, such as those who need solid organ transplants or very low birth weight infants. They require services from tertiary care facilities, where specialists and special equipment are available. Medical case managers provide services

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Case 3:93-cv-00065-RAS Document 135 Filed 02/20/96 Page 67 of 78 PageID #: 8450

at tertiary care facilities to meet recipients' needs when they are under care there. These

sophisticated case managers may also help to coordinate care when recipients leave the tertiary

care facility.

256. Medical case management also is provided in the community where

recipients live. In this instance, medical case management serves recipients with serious and

complex health care problems when they are at home. This aspect of community based medical case management involves coordination with the tertiary care facility and specialists. It also

involves the local coordination of needed services.

257. Community based medical case management also serves recipients who need

help to coordinate health care and other services even though their health problems are treated

locally.

258. The federal government reimburses the Texas Medicaid program for medical

case management at the federal financial participation rate of about 64% .

259. Medical case management may be financed through contractual agreements

with appropriate local agencies. This method reimburses agencies for the percent of staff time

devoted to reimbursable services to recipients.

260. The EPSDT program may also pay for medical case management on a fee

for service basis. This is the same method used to pay for many other medical services. This

reimbursement method is important because it allows doctors to provide case management in their

own offices.

261. Many agencies offer different forms of case management to their clients.

Some of those agencies' clients are also EPSDT recipients.

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Case 3:93-cv-00065-RAS Document 135 Filed 02/20/96 Page 68 of 78 PageID #: 8451
262. The potential for duplication of services poses a significant challenge to the effectiveness of case management. From the recipient's perspective, conflicting instructions and assistance from several well meaning case managers can defeat the purpose of case management to coordinate services and assure that the recipient's needs are met. "Help" from a bevy of case managers can easily cross the line into confusion and aggravation. From the state's perspective, paying for several case managers when one - or two at most - would do is wasteful.
263. The parties agree and the Court orders as follows: 264. Case Management Plan and Implementation Schedule By January 31, 1996, the parties will complete a case management plan for the EPSDT program. Case management includes arrangments for the child and the family which are needed to meet the child's health care needs. The plan will make sufficient case management available in every county or cluster of counties where few recipients reside. It may provide case management by contract with local agencies or on a fee for service basis, whichever is more effective in each county. 265. Among other issues, the plan will address methods to encourage the acceptance of case management by recipients and providers. For example, some providers resent case management because they confuse it with "utilization review." "Utilization review" determines if services are provided appropriately. Some providers view utilization review as an interference with their practice methods. 266. The plan will also address the relationship between case management and managed care organizations. All EPSDT recipients, including those in managed care, are entitled to the full range of case management assistance when medically needed.
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Case 3:93-cv-00065-RAS Document 135 Filed 02/20/96 Page 69 of 78 PageID #: 8452

267. In addition, the plan will address the proper role of case managers. The role is to help recipients to make and effectuate their own choices about their health care and related issues. The role is not to restrict recipients' choices in this realm.
268. The plan will also address case management for the children of migrant and seasonal farmworkers and how best to provide case management to that population.
269. Finally, the plan will address the coordination of case management services provided by the various agencies that serve EPSDT recipients. Coordination will be achieved in a manner that permits recipients to choose their case managers.
270. By September 1, 1996, Defendants will finalize medical case management regulations and implement the program.

STATEWIDENESS

271. Medicaid services, including EPSDT services, must be avaihible "in every political subdivision of the state." 42 U.S.C. § 1396a (a)(l).
272. Currently, the percent of EPSDT recipients who receive services varies from county to county throughout Texas.
273. The parties agree to implement a process to meet the statewideness

requirement. This process will

*

annually monitor the percent of recipients who receive EPSDT check ups

throughout Texas and locally, and
* increase the percent of recipients who receive check ups in areas where that percent

is low.

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274. The process is intended to prevent areas of the state from lagging behind

even if the percent of recipients who receive services in the state as a whole increases.

275. The parties agree to and the Court orders the following statewideness

process:

276. The unit of measurement generally is the county. When necessary, counties

where few recipients live may be clustered so that statistically valid results can be achieved.

277. Beginning in 1996, Defendants will measure the percent of EPSDT

recipients who receive medical check ups. Beginning in 1997, Defendants will conduct 2

analyses. They will measure the percent of EPSDT recipients who receive medical check ups and

2 dental check ups/year in each county or county cluster.

278. By September 30, 1995, Defendants will develop a statistically valid method

to determine which counties or county clusters lag behind in the percent of recipients who receive

medical or dental check ups. The method is subject to Plaintiffs' approval. Plaintiffs' approval

is limited to whether the proposed method is professionally acceptable and valid. The deadline

for Plaintiffs' decision is November 15, 1995. Plaintiffs will not unreasonably withhold approval.

If Plaintiffs agree that the method is acceptable, they may nonetheless offer suggestions.

Defendants may accept or reject Plaintiffs' suggestions.

279. Defendants may improve the method for the statewideness analysis.

Defendants will submit proposed changes to Plaintiffs for approval, as specified above. Plaintiffs

will have 45 days to submit their decision about the new method to Defendants. Again, they may

submit suggestions, which Defendants may accept or reject.

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Case 3:93-cv-00065-RAS Document 135 Filed 02/20/96 Page 71 of 78 PageID #: 8454

280. Defendants will complete a statewideness analysis every year by March 30.

Defendants will identify the counties or county clusters that lag behind the state average for

medical check ups beginning in 1996 and for medical and/or dental check ups beginning in 1997

and continuing annually thereafter for the duration of this agreement.

281. Each year, Defendants will develop a corrective action plan for those

counties that lag behind so that participation in those counties improves. Defendants have

discretion to use one or more appropriate means to improve participation in each county because

local problems and needs vary from county to county. Appropriate means include:

*

increase and/or improve informing and outreach;

*

increase and/or improve transportation assistance;

*

assign appropriate TDH public health professionals to provide medical

and/or dental check ups;

*

arrange for local or nearby private practitioners to provide medical and/or

dental check ups;

*

establish local providers of medical and/or dental check ups;

*

increase and/or improve scheduling assistance; and/or

*

any other means that can be reasonably expected to increase participation.

MEASUREMENT/ACCOUNT ABILITY

282. The parties have reached agreement and the Court orders the following

measurements and reports.

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Case 3:93-cv-00065-RAS Document 135 Filed 02/20/96 Page 72 of 78 PageID #: 8455

283. METHOD TO REPORT CHECK UPS First, Defendants report EPSDT

participation statistics to the federal government every year on the HCFA Form 416. The HCFA Form 416 uses calculations to approximate the number of recipients who receive EPSDT medical

check ups.

284. Every year from 1996 through 1999, Defendants will also report to

Plaintiffs the number and percent of recipients who receive all of their scheduled medical check ups. They will further report the number and percent of recipients who receive all of their scheduled dental check ups. Defendants will provide these reports to Plaintiffs no later than

December 31 of each year.

285. For these reports, Defendants will develop a method that records all recipients who receive the full number of scheduled check ups within a year. Since the reports will be based upon billing information, Defendants may extend the reporting period a reasonable length of time not to exceed 3 months to account for billing delays or other data collection

problems. This short extension of the reporting period also accounts for recipients who receive check ups slightly behind schedule. The complexities associated with collecting utilization data require the parties' continued collaboration in the design and implementation of this system.
286. HEALTH OUTCOMES STUDIES AS A PROXY MEASURE OF FOLLOW UP CARE Second, the other reports mentioned in this agreement do not measure an important aspect of the EPSDT program. They do not measure whether recipients receive "[s]uch other necessary health care, diagnostic services, treatment, and other measures ... to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening

services.... " 42 U.S.C. § 1396d(r)(5).

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Case 3:93-cv-00065-RAS Document 135 Filed 02/20/96 Page 73 of 78 PageID #: 8456
287. A system to measure whether all of the approximately 1.5 million Texas EPSDT recipients receive all needed services would be so complex that it would collapse under its own weight. Further, accuracy might be impossible.
288. So, the EPSDT program will measure several indicators of the health of the EPSDT population. These health outcome indicators will serve as a proxy to measure whether recipients receive the full range of services that they need and are entitled to receive.
289. The parties will together choose health outcomes indicators. To the extent possible, the indicators will gauge the EPSDT population's health in ways that can be measured. Further, the indicators will be chosen wisely, so that they measure important aspects of the population's health. In addition, the indicators will be diverse enough to gauge the health of the entire EPSDT population, not merely factions of the population.
290. In concept, the parties already agree about several indicators..for example, they agree that the prevalence of timely completed immunizations must increase. They further agree that immunization status is an important indicator of the EPSDT population's health and whether recipients actually receive needed health services. Further, it is possible to measure the prevalence of completed immunizations in the EPSDT population because of TDH's new immunization billing forms.
291. The parties also agree that another important health outcome indicator is the decreasing average age of detection of significant congenital hearing problems. Although the average age of detection in other countries is less than 1 year, in the United States the average age is about 24 months. Delayed detection of hearing problems can prevent treatment and interfere with language development.
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Case 3:93-cv-00065-RAS Document 135 Filed 02/20/96 Page 74 of 78 PageID #: 8457
292. The parties further agree that an appropriate health outcome measure is the increasing percent of pregnant teens who receive prenatal care in the second and third trimesters of pregnancy. This indicator measures teens' health and receipt of care. It also is a proxy measure of the health of the new infants, who should automatically be eligible for Medicaid and EPSDT benefits. 42 U.S.C. § 1396a(e)(4). Receipt of prenatal care can be measured because birth certificates record maternal prenatal care.
293. But, wise decisions about other important health outcome indicators require research and thought. The parties will develop a list of health outcome indicators by September 1, 1995. The list will include about 12 indicators. The parties may agree to change, add or delete indicators.
294. The parties will further agree on a target goal for each health outcome indicator. The health outcome goals are not enforceable, in and of themselves·.
295. Defendants will report the best available information on each health indicator annually, beginning on September 1, 1996 and continuing through 1999. The EPSDT program will arrange for stndies to evaluate the health of the EPSDT population, including each health outcome indicator. Defendants will present their proposed methodology for Plaintiffs' approval by April1, 1996. Plaintiffs will not unreasonably withhold approval. If they approve, Plaintiffs may make suggestions. Defendants may accept or reject the suggestions.
296. If reported results do not achieve the goal for each indicator, Defendants will develop corrective action plans to address all matters within Defendants' control to improve results for each indicator. Defendants will present their corrective action plans for Plaintiffs'
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Case 3:93-cv-00065-RAS Document 135 Filed 02/20/96 Page 75 of 78 PageID #: 8458
review and comment by January 30 each year. Defendants will not unreasonably reject Plaintiffs' suggestions.
297. Some health outcome indicators may initially appear to get worse before they get better. In some circumstances, this may perversely suggest that the Texas EPSDT program is working, because recipients who never before received services are finally getting attention.
298. MANAGEMENT INFORMATION SYSTEM Defendants will revise their Management Information System (MIS) in the future. MIS is a computer system that can aggregate data about Medicaid recipients and other public benefits recipients. It can also provide information about individual Medicaid recipients. One of its strengths is that the MIS system can provide information about all recipients, not just a sample.
299. The parties may agree to revise the health outcomes evaluation system to use MIS data. They may decide to substitute MIS data if the MIS improves so that it can provide information that is comparable to or better than the information described above.
MISCELLANEOUS
300. Defendants may contract with individuals and entities to provide EPSDT services. But, Defendants remain ultimately responsible for the administration of the EPSDT program in Texas and compliance with federal EPSDT law.
301. This Consent Decree represents the parties' attempt the resolve many of the issues in this litigation amicably, in the best interests of the class and without the need for the
75

Case 3:93-cv-00065-RAS Document 135 Filed 02/20/96 Page 76 of 78 PageID #: 8459
Court's intervention. Plaintiffs do not concede the validity of Defendants' defenses or that their claims lack merit. Defendants do not concede liability.
302. The term "Defendants" is used broadly in this Decree. From time to time it refers to state agencies. The term "will" creates a mandatory, enforceable obligation.
303. This Decree contemplates that the parties will reach agreement in the future about several issues. It further contemplates that Defendants' future activities will comport with the tenns and intent of this Decree. If this proves to be incorrect, the parties may request relief from this Court. Absent emergency, no party may request relief from the Court without first providing the opposing party with one month's written notice.
304. Further, the parties may agree to revise deadlines contained in this Decree for all years after 1995. They may also agree to revise the substance of this decree when new issues arise that were not foreseen when this Decree was entered. All revisions·of deadlines and substance will be reasonable, consistent with the spirit of this Decree and consistent with relevant law.
305. Absent emergency, the parties will meet twice a year to consider proposed revisions of deadlines and substance. They will meet in the spring (February - April) and in the summer/fall (July- September). The parties will report any agreed changes to the Court no later than May 15 and October 15 of each year. Absent emergency, unless written proposals for revision are received 15 days in advance, the parties are not required to consider them.
306. For the duration of this Decree, Defendants will make monitoring reports every January, April, July and October. The monitoring reports will include a chart and supporting documentation. Defendants will file the chart with the Court by the end of each month
76

Case 3:93-cv-00065-RAS Document 135 Filed 02/20/96 Page 77 of 78 PageID #: 8460
mentioned above. They will also serve the charts and supporting documentation on Plaintiffs' counsel at the same time.
307. The chart will identify each paragraph in this Decree that obliges Defendants to act and each required action. The chart will further state the status of each activity. The parties will agree on the chart's content and may revise it from time to time.
308. The Court notes that the agreements negotiated by the parties which led to this Order were reached within the framework .of federal law related to the EPSDT and Medicaid programs as it existed prior to the execution of the Court's Order. The Court and the parties are aware that Medicaid reform is stated to be high priority for Congress. Ultimately changes could occur in federal law which would alter, amend, or eliminate obligations placed upon the states related to the EPSDT or Medicaid programs. This Order is not intended to preclude the Defendants from making changes to the EPSDT or Medicaid programs when such changes are based upon changes in federal law. More specifically, this Order is not intended to· bind the Defendants to any terms of this Order which may subsequently not be a requirement of federal law including changes which may be optional to states. Defendants will provide Plaintiffs with advance and adequate notice of changes, as contemplated in this paragraph, to the EPSDT or the Medicaid program as it affects EPSDT. Plaintiffs reserve the right to challenge these changes by litigation or otherwise. Moreover, Defendants may seek waivers permitted by law. Prior to seeking a waiver, Defendants will provide advance notice, including a copy of the waiver application packet, to Plaintiffs as early as possible. Plaintiffs agree to keep the waiver packet confidential until it is released to the public. Defendants will promptly present Plaintiffs' written comments to the appropriate decision maker. Defendants will not reject unreasonably any
77

Case 3:93-cv-00065-RAS Document 135 Filed 02/20/96 Page 78 of 78 PageID #: 8461 comments made by Plaintiffs. Plaintiffs may challenge any waivers as allowed by law by litigation or otherwise.
78

 
 .· ·-· ·- Case 3:93-cv-00065-RAS Document 315 Filed 08/14/00 Page 1 of ·1·~ 75 ·P~·a-g-~e~rID:··#: 356~2'l
~ .-,sTu.E~R.NJto:-a~ s:,r·R:..::-c;·o' •:~:.o<-;-·~..:;.

'

s

LINDA FREW, ET AL., Plaintiffs,
v.

Civil Action

DON Gll.BERT, ET. AL., Defendants

MEMORANDUM OPINION

Table o(Contents PART ONE: FINDINGS OF FACT REGARDING VIOLATIONS OF CONSENT DECREE
Background and Procedural History
Issue 1: Outreach A. Overview B. Findings ofFact: Outreach I. Knowledge and Understanding 2. Transportation 3. Receipt ofServices after Oral Outreach 4. Low Participation Rates 5. Insufficient Staffing C. Vwlations ofDecree: Outreach D. Providers' Requestsfor Outreach: Findings ofFact Regarding Violations ofDecree E. Outreach Reports: Findings ofFact Regarding Violations ofDecree
Issue II: Medical and Dental Checkups
A. Overview B. Findings ofFact: Checkups
I. Medical Checkups 2. Dental Checkups
a. Services b. Provider Recruitment
3. Teens 4. Abused and Neglected Class Members C. Vwlations ofDecree: Checkups I. Principles ofStatutory Interpretation
a. Structure and Context b. Legislative Intent
2. Waiver
3. The Cases D. Checkups Reports: Findings ofFact Regarding Violations ofDecree Issue Ill: Corrective Action Plans A. Corrective Action Plans for Lagging Counties: Findings ofFact Regarding Violations of
Decree
1. What is "Lagging"?
2. Counties with Few Class Members 3. Managed Care Counties 4. Checkups Versus Treatments 5. Professionally Acceptable Data Analyses

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Case 3:93-cv-00065-RAS Document 315 Filed 08/14/00 Page 2 of 175 PageID #: 3563
B. Corrective Action Plans for Transportation System 1. Overview 2. Role and Importance ofDefendants' Transportation System 3. Findings ofFact Regarding Violations ofDecree
Issue IV: Managed Care A. Defendants' Managed Care Programs B. Findings ofFact: Receipt ofServices by Class Members Enrolled in Managed Care 1. Overview 2. Inaccurate and Inflated Data 3. THQA Focus Studies 4. Comparing Managed Care and Fee-for-service Systems 5. Incomplete Checkups 6. Problems with the Medical Home and Primary Care Provider Models a. The PCP b. Crowded Clinics and Emergency Rooms 7. Access to Specialists 8. Access to Pediatric Care and Mental Health Services 9. THQA Provider and Consumer Studies 10. Self-Reporting by Class Members a. B.M. and Samantha b. C.H. and Sons
c. c.o.
C. Violations ofDecree: Receipt ofServices by Class Members Enrolled in Managed Care D. Children ofMigrant Farmworker Families
1. The Problem 2. Findings ofFact Regarding Violations ofDecree E. Training ofHealth Care Providers in the Managed Care System: Findings ofFact Regarding Violations ofDecree F. Data Collection in the Managed Care System: Findings ofFact Regarding Violations of Decree Issue V: Toll-Free Numbers A. Overview B. Findings ofFact: Prompt Answering ofAll Calls C. Violations ofDecree: Prompt Answering ofAll Calls 1. Abandonment Rates 2. Waits in Queue 3. Unit ofMeasurement D. Knowledgeable, Helpful, and Polite: Findings ofFact Regarding Violations ofDecree Issue VI: Case Management A. Role and Importance ofCase Management B. Findings ofFact 1. TheNeed 2. Utilization 3. Sufficient Staffing 4. The Safety Net 5. Recruitment C. Violations ofDecree Issue VII: Outcome Measures A. Overview B. Findings ofFact Regarding Violations ofDecree 1. Joint Notice Measures 2. Unilateral Substitution ofMeasures
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3. Corrective Action Plans 4. Timing Issue VIII: Training for Health Care Professionals A. Findings ofFact B. Violations ofDecree PART TWO: DEFENDANTS' OBJECTIONS TO ENFORCEMENT OF CONSENT DECREE Issue I: Enforcement ofthe Medicaid Statute A. Lawofthe Case B. Supreme Court Jurisprudence on Enforceable Rights C. The EPSD T Provisions ofthe Medicaid Act Issue II: Eleventh Amendment Objection A. Defendants' Objection B. Lelsz. v. Kavanagh 1. Overview 2. The Holding: A Closer Look 3. The Narrowing ofLelsz. 4. An Untenable Distinction? C. Application 1. Enforcement ofProvisions Guaranteeing Services
a. Outreach b. Services c. Managed Care 2. Enforcement ofProvisions Requiring Reporting ofData and Information a. Reporting b. Outcome Measures and Corrective Action Plans 3. Enforcement of Training and ToU-Free Line Provisions CONCLUSION
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PART ONE: FINDINGS OF FACT REGARDING VIOLATIONS OF
DECREE
Background and Procedural History
This civil action, filed on September 1, 1993, concerns the alleged failure of the State of Texas
to implement a Medicaid program that assures that indigent children and youth receive timely,
comprehensive health care. The case was brought by a class of more than one and one-half
million indigent children in Texas who are entitled to health benefits through the Early Periodic
Screening, Diagnosis and Treatment program ("EPSDT"). See 42 U.S. C. §§ 1396a(a)(43)\
1396d(r).2 In Texas, the program is referred to as the "Texas Health Steps" program, which is
1Title 42 U.S.C. § 1396a(a) provides: A State plan for medical assistance must--
(43) provide for-(A) informing all persons in the State who are under the age of21 and who have been determined to be eligible for medical assistance including services described in section 13 96d(a)(4)(B) of this title, of the availability of early and periodic screening, diagnostic, and treatment services as described in section 1396d(r) of this title and the need for age-appropriate immunizations against vaccine-preventable diseases, (B) providing or arranging for the provision of such screening services in all cases where they are requested, (C) arranging for (directly or through referral to appropriate agencies, organizations, or individuals) corrective treatment the need for which is disclosed by such child health screening services, and (D) reporting to the Secretary (in a uniform form and manner established by the Secretary, by age group and by basis of eligibility for medical assistance, and by not later than April 1 after the end of each fiscal year, beginning with fiscal year 1990) the following information relating to early and periodic screening, diagnostic, and treatment services provided under the plan during each fiscal year . . .
2This provision of federal law sets forth the minimum services which the state must provide under the EPSDT program, including: 1) screening services, including comprehensive health and developmental histories, comprehensive unclothed physical exams, appropriate
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administered jointly by the federal government and the Texas Health and Human Services Commission. EPSDT is intended to be "the nation's largest preventive health program for children." H.R. 3299, 101'1 Cong. § 4213 (1989). It is "among the most important programs that the Texas Department ofHealth runs." Order Concerning Fairness ofConsent Decree at 8 (filed January 25, 1996)(hereinafter "Fairness Order'')(intemal quotes omitted).
The purpose of the EPSDT program is to ensure that poor children receive comprehensive health care at an early age, so that they will develop fewer health problems as they grow older. EPSDT is designed to provide health education, preventive care, and effective follow-up care for conditions identified during check-ups. Preventive health care identifies health problems that may respond to early treatment but, ifleft untreated, may instead lead to serious health conditions. For example, a heart murmur detected during an EPSDT screening, ifuntreated, could lead to heart failure. Severe anemia, ifuntreated, could result in behavioral problems and reduced mental capacity. Other important components of the EPSDT program include immunizations, parental education, assistance with scheduling appointments and transportation assistance, and coordination ofEPSDT and other programs serving Medicaid-eligible children.
After two years of extensive negotiation following the filing of this case, the parties proposed a partial consent decree to this court in July of 1995. During a fairness hearing held in
immunizations, laboratory tests (including appropriate lead blood level assessments), and health education; (2) vision services, including diagnosis and treatment for vision defects; (3) dental services, including "relief of pain and infections, restoration of teeth, and maintenance of dental health"; (4) hearing services, including diagnosis and treatment for defects in hearing; and (5) "such other necessary health care ... to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered by the State plan."
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December of that year, the parties urged the court to approve the proposed decree. The court approved the decree as fair, reasonable, and adequate on February 16, 1996. Per the agreement ofboth parties, the decree expressly retains the court's jurisdiction to rectify violations of its terms, and provides a mechanism to invoke this jurisdiction. Consent Decree, ~ 303.3 The Plaintiffs' Claims
Currently pending before the court is plaintiffs' motion to enforce multiple provisions of the consent decree with which defendants allegedly have not complied. Specifically, plaintiffs allege that defendants have failed to: 1) implement properly the outreach program and deliver required outreach reports; 2) assure that all class members receive medical and dental checkups; 3) develop and implement annual corrective action plans both for counties that lag behind the statewide average for checkups and for the state's medical transportation system; 4) operate the state's managed care system consistently with the mandates of the decree; 5) operate toll-free numbers so as to ensure that all calls are answered promptly by a knowledgeable and helpful staff member; 6) provide case management to all class members who need it, statewide; 7) develop methods to study each agreed health outcome measure; and 8) provide EPSDT training for health care providers.
3Paragraph 303 provides in full:
303. This Decree contemplates that the parties will reach agreement in the future about several issues. It further contemplates that Defendants' future activities will comport with the terms and intent of this Decree. Ifthis proves to be incorrect, the parties may request relief from this Court. Absent emergency, no party may request relief from the Court without first providing the opposing party with one month's written notice.
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The Defendants' Responses Defendants deny that plaintiffs are entitled to any relief sought, and maintain that they are
in full compliance with the decree. In addition, they argue that in interpreting the consent decree to require certain specific actions by defendants, plaintiffs seek to modify the decree, and not merely to enforce it. In the alternative, defendants argue that a federal court's jurisdiction over a state official is limited by the Eleventh Amendment to requiring compliance with federal law. Therefore, defendants argue that the decree itself may not be enforced against them to the extent that it goes beyond the scope of simple compliance with federal law. The Hearing andMemorandum Opinion
A hearing was held from March 13 -Marchi?, 2000, on plaintiffs' motion to enforce the decree, and evidence was heard on each of the above-listed issues. Following the hearing, the court invited the parties to submit briefs on several of the legal issues involved in this case. Additionally, plaintiffs submitted proposed orders of enforcement, to which defendants responded. The following is a memorandum opinion that grants plaintiffs' motion to enforce the decree in part. Part One of the opinion details the court's findings of fact regarding defendants' specific violations of the consent decree, as interpreted by the court. Part Two addresses defendants' objections to the enforcement ofvarious provisions ofthe decree. The court's Order ofEnforcement accompanies these findings of fact and conclusions oflaw as a separately issued order.
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I. Issue One: Outreach

A. Overview

The decree elaborates in detail the defendants' obligations to conduct outreach efforts

aimed at increasing participation and the receipt of needed services. For example, it requires

defendants to inform all class members about checkups and other services, and to assist them in

arranging for checkups and needed care. ~~ 10-74. These decree paragraphs stem from the

federal requirement that a state plan for medical assistance that details the state's obligations

pursuant to their participation in the federal Medicaid program must "provide for" the "informing"

of all eligible recipients ofEPSDT services of the availability ofthose services. 42 U.S.C.

§1396a(a)(43)(A). The decree also requires defendants to provide outreach to "encourage

EPSDT recipients to fully use services" and "assist recipients to overcome common barriers that

prevent them from using EPSDT services."~ 50.4 These barriers include the "lack of a health

care provider," "communication problems," "transportation problems," and "lack of knowledge"

about the program. ~ 51. As was explained to the court:

[I]f poor parents understood the concept of prevention and understood the value of having their child seen early and on a regular basis and they understood the outcome they could expect, which is a child with no decay and pretty white teeth and a pretty smile, of course they would [seek services].

TR 252, line 23 to 253, line 14; see also TR 308, lines 13-15. (Testimony ofNancy Seale,

D.D.S.,

M.S.D.

5 ).

4 The defendants may provide outreach by use of their own staff or by contract. ~ 26.
5With no objection from defendants, the court qualified Dr. Seale as an expert in "pediatric dentistry, oral health conditions, and problems of children, including members of the class and barriers that prevent class members from seeking dental care." TR 250, lines 11-8. Dr. Seale has taught dentistry, and the specialty of pediatric dentistry, since 1972. She has taught primarily at Baylor College ofDentistry in Dallas, where she is now the chairwoman of the
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B. Findings of Fact: Outreach At issue is defendants' compliance with decree provisions requiring that they maintain
sufficient staffing and other resources to conduct outreach "effectively"(~ 32) and that they "effectively inform" class members about EPSDT services to which they are entitled(~~ 11, 52).6
Abundant evidence that defendants have violated the decree's outreach provisions was presented to the court. The evidence may be sorted into five categories: 1) evidence of class members' lack of knowledge of defendants' services, 2) evidence related to defendants' transportation system, 3) evidence that plaintiffs do not often obtain services after having received outreach contacts, 4) evidence of plaintiffs' low participation in defendants' programs, and 5) evidence of defendants' insufficient staffing of their outreach programs. 7
Knowledge and Understanding Overwhelming evidence was presented - both statistical and anecdotal - demonstrating that large numbers of class members do not know about Texas Health Steps, or do not understand the breadth of services to which they are entitled.
pediatric dental program. In addition, Dr. Seale has many years of personal experience with the provision of dental care to class members. TR 248, lines 10-22; TR 328, line 24 to 329, line 3. Dr. Seale is responsible for two hospital-based dental programs for children in Dallas. Also, Dr. Seale is involved at both the state and national level in organized dentistry, and has published extensively in the field of pediatric dentistry. She is a member ofthe editorial board for Pediatric Dentistry. P.Ex. W-6. Dr. Seale was not paid for her testimony. TR 250, lines 9-10.
6These obligations are discussed in more detail in Section I(C), following the court's findings of fact in this area.
7Because they implicate different paragraphs of the decree, plaintiffs' related complaints concerning defendants' failure to respond effectively to provider requests for outreach and defendants' failure to report outreach efforts as required by the decree will be treated separately, in Sections I(D) and I(E), respectively.
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Numerous witnesses testified to the lack of understanding about defendants' services

among class members. For instance, one witness testified about parents who are "overwhelmed

with[] confusion" about the program. TR 163, lines 8-13. (Testimony ofCarolynn Singleton,

M.P.H.,

R.N.

8 )

.

She explained that class members view Medicaid as a program to use only if they

become sick. She stated that class members are not aware of the preventive dental services to

which they have access, and the transportation services they could use to gain access to such care.

TR 162, lines 1-15.

Another witness testified that most class members "do not seem to be familiar with all the

services Medicaid provides," noting that class members often do not know how many

prescriptions they may receive, have not heard of the medical transportation program, and do not

know about eyeglass coverage or dental coverage. TR 19, line 22 to 20, line 8. (Testimony of

Jane McHan, M.S.W.9). A third witness also testified that a common problem for class members

8The court qualified Ms. Singleton as an expert "in the field of preventive and primary care for children who have Medicaid, including barriers to their receipt of health care." She is a registered nurse, and has a master's degree in public health from Tulane University. P .Ex. W-7. Ms. Singleton estimates that she has conducted about 20,000 Texas Health Steps medical checkups over the course of her career. In addition, Ms. Singleton is an owner of Agape Clinics of Texas, which opened in 1991. Agape operates four clinics in the Dallas-Fort Worth area. The Arlington clinic alone sees more than 4,000 class members every year. P.Ex. A-8 at 4. Agape employs three physicians, an optometrist, four nurse practitioners, twelve registered nurses trained to perform Texas Health Steps medical checkups, medical assistants and support staff TR 183, lines 2-18. Agape also provides Texas Health Steps checkups for Head Start students in many Texas counties, as well as checkups and primary care for many class members. TR 217, line 5 to 218, line 9.
9The court qualified plaintiffs' witness Jane McHan as an expert in "the field of social work and case management as it applies to class members, including barriers to class members' receipt of health care." TR 18, line 16 to 19, line 3. She has worked with low-income families for over twenty years. TR 41, lines 13-18. Ms. McHan has been the director of the Parent Case Management Program in Abilene for three years, where she supervises eight case managers. TR 13, line 24 to 14, line 7; TR 17, lines 1-5. She has a master's degree in social work. She TR 16,
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is that they do not understand their benefits under Medicaid. TR 760, line 20. (Testimony of Carol
Tillman1~. See also P.Ex. M-17.
Echoing the testimony of these experts, a fourth witness explained that
[t]he families are under-informed about the Medicaid program. They do not understand all the concepts about preventive care. Most of the families do not know what coverage their children have and do not have through Medicaid.... Most of them do not understand what a checkup is; they think this means any contact with a medical provider's office.
P.Ex. A-8 at 5 (Deposition ofDeborah Skaggs11). Furthermore, it was demonstrated that class
members do not understand preventive dental care or Medicaid dental benefits:
[T]he families of the poor children work under the assumption [that] you go to the dentist when you have a toothache, and you go to the dentist when you have a problem, otherwise you don't go. And I think they need to be taught.... [T]he ones who haven't been taught don't know what they can expect. They simply don't know, and I think a large percent of[class members'] parents don't know... . [O]ne ofthe single greatest reasons that they don't seek [dental care] is they simply don't know.
lines 19-25. She also has taught social work at Hardin Simmons University for over ten years. TR 17, lines 7-11; see also P.Ex. W-1. Ms. McHan was not paid for her testimony.
10The court qualified Ms. Tillman as an expert in "managed care especially as [it applies] to class members, including barriers to class members' receipt of health care." TR 68, lines 5-15. She has fifteen years of experience in the managed care field, including experience in senior management positions with several managed care companies. TR 65, line 10 to 66, line 17. From 1995 to 1997, she served as the vice president and chief operating officer for Community First Health Plans, an HMO that is owned by the Bexar County Hospital District in San Antonio. TR 66, line 18 to 67, line 1. Most of Community First's membership has Medicaid. TR 67, lines 1621; see also P .Ex. W-11. As vice president and chief operating officer, Ms. Tillman oversaw the day to day operation of the HMO and was responsible for probably every department except for medical management and claims. TR 67, lines 6-11. She was responsible for provider relations and member services. TR 67, lines 12-5. Ms. Tillman was not paid for her testimony.
uDeborah Skaggs works at Agape Clinics with Ms. Singleton. She helps class members to resolve problems with gaining access to Medicaid managed care programs. She has worked at Agape for about six years. P.Ex. A-8 at 4.
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TR 253, line 19 to 254, line 11. (Testimony ofDr. Seale). Furthermore, defendants' August, 1998 Outreach and Marketing Report notes that class
members "were consistently surprised to learn that Texas Health Steps offers dental and vision care, free transportation and eligibility until age 21." P.Ex. 0-1, at 2. This report also indicates that 60% of participating EPSDT clients knew "very little" (12%) or "nothing at all" (48%) about the program. Id. at 8. Potential clients knew even less: 70% of those eligible but not enrolled reported knowing very little or nothing at all about Texas Health Steps. Id. at 7. The study also revealed that parental confusion about which services they have or have not obtained for their children may operate as a barrier to plaintiffs' receipt of care. For example, class members' families often confuse EPSDT services with other services they may have received, such as services from the Women's Infants' and Children's program (WIC). Id at 8.
Moreover, class members' parents sometimes do not understand what a dental visit is or think their child has had a dental visit when in fact the child has not. TR 274, lines 23-25. (Testimony ofDr. Seale). Parents frequently believe that class members are up to date on checkups and immunizations, when in fact they are not. TR 165, line 10 to 166, line 25. (Testimony ofMs. Singleton). As Dr. Seale noted, when "a parent thinks a child has already had a visit, . . . [but the child is actually overdue for a checkup] . . . they may not follow through . . . because they think the child has already had one." TR 275, lines 10-18.12
12Defendants' reliance on plaintiffs' loosely conducted survey of class members concerning their knowledge of the scope ofEPSDT services is misplaced. D.Ex. 95. That is, the court is persuaded that although class members may think they know the full array of services to which they are entitled, they may not actually have been informed fully or correctly. The study also lacks indicia of scientific validity. For these reasons, defendants' 1998 Outreach and Marketing report is found to be a more reliable gauge of class members' knowledge and understanding of the Texas Health Steps Program.
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Transportation The class members' lack of knowledge of the free medical transportation system is perhaps the clearest example of a failed outreach program. Many of plaintiffs' expert witnesses quoted in the above section testified to this lack ofknowledge. The Texas Legislature's Sunset Advisory Commission Health and Human Services StaffReport for 1998 states that "the lack of information about available client transportation services ... [is] ... a major barrier to accessing needed transportation." P.Ex. -3 at 115. Furthermore, according to a Texas A&M University study of defendants' transportation program, "[o]n average, recipients who do not use MTP report fewer medical and dental appointments than MTP users." P.Ex. T-43 at 54. However, despite the importance of the transportation program, it is severely underutilized. 13 This underutilization, stems from the failure of the defendants' outreach program to make class members aware that MTP exists: Recipients who did not use MTP simply did not know about the program or the services it provided.... [S]lightly more than a third of non-users reported any knowledge ofMTP. Of those who had heard ofthe program, only a small fraction had actually heard of any of the specific MTP funded services. P.Ex. T-43 at 55. 14
13MTP services are used by only a small fraction of those who qualify for the service. For example, 98% of those eligible for transportation assistance had not used MTP in the year prior to the survey. P.Ex. T-43 at 54.
14Defendants report that 63% of the medical transportation program participants were very satisfied with the program. TR 887, lines 2-5. However, this statistic reflects only the degree of satisfaction among the program's users, not the problems relating to the lack of knowledge among the class as a whole as to the program's existence.
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Receipt ofServices after Oral Outreach The effectiveness of defendants' outreach program may also be measured by the number of class members who opt to receive services after having been contacted by defendants. Because written information and contacts with eligibility workers are not, by themselves, likely to inform all class members about EPSDT services, the decree provides for the creation of"oral outreach units" designed to provide outreach services to those recipients who request additional information, those who miss check ups, and those whose health care provider requests outreach. ~ 33. The evidence produced at the hearing suggests that defendants' outreach efforts do not generate particularly high levels of participation among eligible EPSDT recipients. Approximately 25% of class members actually receive medical checkups after having received oral outreach services.15 P.Ex. 0-3; see also TR 943, lines 19-25. From the start offiscal year 1999 through June of 1999, the percentage of newly-certified and re-certified class members who received checkups after receiving oral outreach services ranged from about 26% to 38%. The percentage of class members who were overdue for checkups and who received checkups after oral outreach ranged from about 12% to 38%. P.Ex. 0-4.
Low Participation Rates The low participation rates among class members, discussed in Section II(B) of this opinion, also demonstrate that defendants' outreach efforts are ineffective. The fact that
15Defendants do not record data aimed at measuring the success of dental outreach. 14

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participation rates have declined is stark evidence of the ineffectiveness of defendants' outreach program. 16
Insufficient Staffing
Finally, the evidence demonstrates that defendants' failure to conduct appropriate
outreach, at least in part, may be attributed to inadequate outreach staffing. Although defendants' outreach obligations to the large number of plaintiffs who had missed appointments should have
increased steadily every year from fiscal year 1997 through 1999, there was no concomitant increase in defendants' staffing. P.Ex. 0-5. In 1996, one outreach unit staff member served
3,500 class members. P.Ex. 0-8.
C. Violations of Decree: Outreach The evidence weighing against a finding that defendants are in violation ofthe outreach
provisions consists primarily of improvements made after the entry of the decree. 17 The drop in
the number of class members overdue for checkups, from 690,868 in 1998 to 629,600 in 1999,
could be interpreted as evidence of an effective outreach program. D.Ex. D-101. However, the
1~efendants point to declining numbers of clients contacted by outreach staffbecause they had missed their checkups as evidence of fewer checkups missed by class members. Given the low participation rates cited by plaintiffs in dental checkups and in other medical services, see Section II(B), supra, defendants' logic is seriously flawed. The decline in contacts for missed checkups might also indicate, as plaintiffs urge, that defendants have failed in their duty to contact plaintiffs after missed checkups, or have failed accurately to compute how many plaintiffs were due checkups.
17For example, there were 435,818 outreach efforts made in 1999- a significant increase from the 152,557 efforts made in 1995. TR 880, lines 12-23; D.Ex. 102. Defendants also rely heavily on D.Ex. D-119, the "Texas Health Steps Outreach Efficacy Study." However, that particular study is found to be wholly unreliable for the reasons cited in plaintiffs' written objections to the report, and will therefore not be considered as evidence contradicting earlier outreach reports prepared by defendants and relied upon by plaintiffs.
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large number of class members overdue for checkups is more appropriately viewed as evidence of an ineffective outreach program, especially considering that over one million class members did not receive any dental checkups in fiscal year 1998. P.Ex. D-3 at 5. The decline thus says very little, if anything, about the overall effectiveness of the outreach program.
The evidence also reveals that the number of outreach contacts increased from 2.3 per class member in fiscal year 1997 to 2.5 per class member in fiscal year 1998, and that the number of outreach contacts has increased each year from fiscal year 1997 to 1999. D.Ex. D-100, D-102. However, roughly two-thirds of these reported contacts were written, not oral, contacts. Despite the effectiveness ofhome visits,18 defendants rarely conduct them. P.Ex. 0-3. Although the decree does not mandate that a certain proportion of defendants' outreach contacts be home visits, it is found that defendants are not adequately availing themselves of the opportunity to use one of the most effective means of outreach. For example, defendants conducted only 53 home visits in the entire state for the month ofMarch 1999. More importantly, given the strikingly .large number of missed checkups- especially dental checkups- defendants' reported increase in the number of contacts would be expected due to the requirement in paragraph 33 that those who miss checkups subsequently receive outreach. In sum, it is found that much of the evidence of improvement is severely undermined by the low levels of success that have characterized defendants' outreach program. 19
18Ms. Singleton testified that, in her experience as a provider through Agape Clinics, home visits or oral outreach "is the best way to educate ... and get access." TR 244, lines 2-5.
19por example, defendants report that the receipt of medical checkups by class members has increased every year since the decree was entered. D.Ex. D-96, D-97,.D-98, D-99. Defendants also stress that they have recently contracted with Maximus to provide Texas Health Steps outreach and informing. Defendant's $7.6 million contract with Maximus is the largest
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Furthermore, it is by no means clear that defendants' progress is at issue, as the decree does not require progress in these areas. In enforcing the consent decree, the court is bound solely by its language. As the Supreme Court emphasized in United States v. Armour & Co., 402 U.S. 673, 682 (1971), "the scope of a consent decree must be discerned within its four comers,"
not by reference to what either party hoped to achieve by the decree, or to what they might have
achieved through the litigation of their claims. Under the logic ofArmour, as derived from the law of contracts, an interpretation of the decree must be based strictly on the language of the decree, and not on the legal requirements of the Medicaid Act, except to the extent that those
requirements are clearly imported by the language of the decree.
There are two major exceptions to the general rule in Armour. First, extrinsic evidence
may be consulted in interpreting the language of a consent decree: Since a consent decree or order is to be construed for enforcement purposes basically as a contract, reliance upon certain aids to construction is proper, as with any other contract. Such aids include the circumstances surrounding the formation of the consent order, any technical meaning words used may have had to the parties, and any other documents expressly incorporated in the decree. Such reliance does not in any way depart from the "four comers" rule ofArmour.
United States v. liT Continental Baking Co., 420 U.S. 223, 238 (1975) (footnote omitted). Relying upon general contract principles, courts have interpreted this to mean that "[e]xtrinsic evidence ... may generally be considered only if the terms of the judgment, or of documents
EPSDT contract for outreach services in the United States, and represents a serious commitment by the state to conduct effective outreach in the future. TR 882, lines 2-4. Defendants will make their outreach efforts more effective by contracting with up to fifty community-based organizations through Maximus. The court is impressed with this massive undertaking. However, while all parties are hopeful that the contract will result in great improvements in defendants' outreach program, this potentiality is not relevant to the court's inquiry into defendants' past and current compliance with the decree.
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incorporated in it, are ambiguous." See, e.g., SEC v. Levine, 881 F.2d 1165, 1179 (2nd Cir.1989). A contract is ambiguous "when it is reasonably susceptible to more than one meaning, in light of surrounding circumstances and established rules of construction." Northshore Laboratories Corp. v. Cohen, 721 F.2d 514, 519 (51h Cir. 1983). Whether a contract is ambiguous is a question of law. Paragon Resources, Inc. v. National Fuel Gas Distribution Corp., 695 F.2d 991, 995 (51h Cir. 1983). Once a court determines that a contract is ambiguous, it may look to extrinsic evidence to support its terms. Eaton v. Courtaulds ofNorth America, Inc., 578 F.2d 87, 91 (511t Cir. 1978). Although the determination of a contract's ambiguity is a question oflaw, determination ofthe party's intent through extrinsic evidence is a question of fact. Paragon Resources, 695 F.2d at 995.
Second, if a statement of purpose is contained in the decree itself, as the product of arm's-length negotiations, and that purpose may be discerned without reference to the extrinsic aims of the parties, Armour should not be read to prohibit consideration of that purpose. See United States v. Local1804-1, 44 F.3d 1091, 1098 (2nd Cir. 1995). In the instant case, the various introductory paragraphs interspersed throughout the decree form the relevant backdrop for its interpretation. For example, the overall purpose of the decree is recited in paragraph 6.20
Thus, the decree will be interpreted within its "four corners," and its interpretation will be supplemented by extrinsic evidence where ambiguities so require. Consideration will also be
20 This paragraph states:
6. To address the parties' concerns, to enhance recipients' access to health care, and to foster the improved use of health care services by Texas EPSDT recipients, the parties agree and the Court orders Defendants to implement the following changes and procedures for the Texas EPSDT program[.]
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given to the purposes incorporated into the decree itself. Therefore, attention must first be given to the language of the decree's outreach provisions put in question by plaintiffs' evidence:
11. The parties agree to and the Court orders the following changes to the Texas EPSDT program, policies and procedures to effectively inform recipients about the EPSDT program: 32. All outreach units will have sufficient staff and other reasonably necessary resources to handle their workload promptly and effectively. 52. Oral outreach efforts will effectively inform recipients about EPSDT, including the schedule for medical and dental checkups as well as the full range of covered services. Oral outreach will also effectively inform recipients about the benefits of preventive health care, that services are free of charge, how to locate a provider who is willing to provide services to EPSDT recipients, how to schedule appointments and how to schedule transportation assistance.
The court must determine which ofthese provisions create binding obligations on the state that, based on the evidence presented, have not been met. Paragraph 11 highlights the fact that the parties bound themselves to the outreach provisions that follow. Paragraph 32 states that all outreach units "will have sufficient staff .. to handle their workload promptly and effectively." This language is unequivocally mandatory and clearly binds defendants. The only question is, what level of staffing is "sufficient," and what level of resources "reasonably necessary"? While these terms may at first seem vague and difficult to enforce, their meaning is clarified in part by the remainder of paragraph 32. "Sufficient" staffing and "reasonably necessary" resources are those inputs that will permit the "prompt" and "effective" handling of the workload. Paragraph 52, which states that oral outreach efforts will "effectively inform" recipients about EPSDT,
echoes this emphasis on effectiveness. See also~ 11 ("effectively inform")~ ~ 30 ("Outreach units
will work cooperatively with others who serve EPSDT recipients to serve recipients effectively and efficiently"). Thus, paragraphs 32 and 52 state explicitly what the State must do: it must hire
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enough staff members to permit the effective handling of the workload, and it must effectively inform class members about the program through oral outreach. 21
What, then, amounts to "effective" informing or serving, or the "effective" handling of a workload? Under Armour and its importation of contract law into the interpretation of consent decrees, extrinsic evidence of the parties' intent is to be considered by a court in giving meaning to ambiguous phrases. Defendants appear to suggest that the use of the phrase "effectively inform" in 42 C.F.R. § 441.56(a) should inform the court as to the parties' intended meaning of the phrase in the decree.22 Specifically, defendants appear to argue that the phrase "designed to," significantly limits their more general duty to "effectively inform." However, defendants' proposed interpretation of this phrase must be rejected as inconsistent with the parties' use of "effective" in the decree. In particular, paragraph 52 does not include the phrase "designed to," and instead states unequivocally that defendants' outreach efforts ''will effectively inform" (emphasis added). The omission ofthe phrase "designed to" suggests, if anything, that the parties intended to require the defendants to do more than merely plan or design to inform effectively. Therefore, defendants' proposed extrinsic evidence is found to have little bearing on the meaning of"effective" as used in these paragraphs.23
21Paragraphs 32 and 52 relate to the defendants' duty to effectively inform specifically through the oral outreach units required by the decree. However, because it precedes the entire outreach section of the decree - which extends through paragraph 74 and touches on all aspects of oral and written outreach - paragraph 11 makes clear that the duty to "effectively inform" extends to all class members, including those not entitled to oral outreach under paragraph 33.
22This regulation requires state agencies to provide for a combination of written and oral methods designed to inform effectively. See Part Two, Section II(C)(1)(a).
23It is further noted that, even had the parties provided the court with relevant extrinsic evidence, it would be very difficult, if not impossible, to arrive at the intended meaning of
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The meaning of"effective" can be more clearly discerned by looking at the entire context of the decree, thereby locating and examining possible goals or criteria under which "informing" or the "handling" of a workload might be deemed "effective." See Alliance to End Repression v. City ofChicago, 119 F.3d 472, 475 (7th Cir. 1997)(noting that "four corners" inquiry requires a focus on the entire decree, not just a single provision). For example, under one reading of the decree, one might consider informing to be "effective" if it is simply well-communicated to those plaintiffs who are contacted. This reading would place defendants under an obligation, in the course of their outreach, to be "effective" in instilling understanding or knowledge among those contacted. See, e.g.,~ 14 ("Information about EPSDT must be relevant to recipients' needs. Information must also be reasonably interesting and presented in a manner that is sensitive to EPSDT recipients' many different cultural backgrounds.... Finally, information must be presented in a manner that is convenient to recipients.");~ 17 ("Defendants will use letters that are effective and appropriate. They will be printed in English and Spanish."); ~ 51 ("Common barriers may include[:] ... misunderstandings/lack of knowledge about Medicaid and/or EPSDT."); ~52 ("Oral outreach efforts will effectively inform recipients about EPSDT, including the schedule for medical and dental check ups as well as the full range of covered services. Oral outreach will also effectively inform recipients about the benefits of preventive health care, that services are free of charge, how to located a provider who is willing to provide services to
"effectively inform" at the time of the signing. It is more likely that such an endeavor would permit the court to discern only the outer boundaries of a range of behavior intended by the parties to be required of defendants. It is improbable, for example, that the defendants would have bound themselves to effectuate the goal of furnishing all class members with perfect information about EPSDT all of the time. Likely, too, would the plaintiffs have intended the term to mean more than marginal improvements in the status quo at the time of the signing.
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EPSDT recipients, how to schedule appointments and how to schedule transportation assistance.");~ 54 ("Oral outreach will use examples that are tailored to the recipient's age and needs so that information is relevant and interesting to the recipient. When a household includes several recipients of different ages, outreach will provide age appropriate information about each recipient when possible.");~ 56 ("Oral outreach will be provided in a manner that is sensitive to recipients' ability to understand and process information. Appropriate language will be used. Sessions will be long enough to meet recipients' needs for information but not so long that they are overwhelming or confusing. The length of sessions will necessarily vary from recipient to recipient.")
Alternatively, other decree provisions suggest that outreach that succeeds in reaching the
maximum possible number of people could be termed "effective." See, e.g., ~ 20 ("Eligibility
workers will now be required to discuss EPSDT with applicants who apply for benefits on behalf of an EPSDT eligible person.");~ 25 ("But, information about EPSDT provided by TDHS eligibility workers will not be effective for all EPSDT recipients. Oral outreach units will provide outreach services when required."); ~ 31 ("Defendants will provide outreach services in all areas of the state.");~ 49 ("Outreach units will keep current so that they can[] provide prompt outreach upon receipt of new Outreach Lists...");~50 ("The purpose of oral outreach is to encourage EPSDT recipients to fully use EPSDT services; and [to] assist recipients to overcome common barriers that prevent them from using EPSDT services.");~ 59 ("Over time, the groups of recipients who require oral outreach should change.... The groups of recipients who require oral outreach will increasingly be [] newly eligible recipients who have never received oral outreach..."); ~ 73 ("Defendants will arrange for and implement a marketing plan that
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encourages providers and recipients to participate in the EPSDT program."); see also~~ 175-213 (regarding "special groups [that] require special attention so that they can receive the full benefits of the Texas EPSDT program.");~ 264 ("The [case management] plan will make sufficient case management available in every county or cluster of counties where few recipients reside.");~ 271 ("Medicaid services, including EPSDT services, must be available 'in every political subdivision of the state.' 42 U.S. C. § 1396a(a)(1)."); ~ 273 ("The parties agree to implement a process to meet the statewideness requirement.").
Still another alternative would be to measure the effectiveness of outreach by its success in persuading listeners to gain access to services.24 See, e.g., ~ 10 ("Information about the EPSDT program is important so that recipients can fully utilize EPSDT services, including medical and dental checkups."); ~ 14 (informing efforts must encourage "recipients to understand and use services fully"); ~ 17 (written materials must be provided "to explain the EPSDT program and to encourage its use. . . . The reason to include age appropriate information is to provide information that is relevant and interesting to encourage the recipient to fully use EPSDT services.");~ 50 ("The purpose of oral outreach is to encourage EPSDT recipients to fully use EPSDT services and assist recipients to overcome common barriers that prevent them from using EPSDT services.");~ 64 (defendants may conduct other outreach efforts to "encourage recipients to use EPSDT services");~ 66 (other agencies can help class members to use services);~ 73 (media marketing plan must "encourage ... recipients to participate in the EPSDT program"); see also~ 178 ("The purpose of outreach to recipients who are children of migrant farmworkers will be to
24The court notes, with disapproval, that defendants do not keep records of those class members who have declined services. P.Ex. CH-23.
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help them to receive as many needed EPSDT services as possible...."); ~ 183 (Outreach information will encourage [migrant farmworker] recipients to receive as many needed services as possible...."); ~ 193 (managed care companies must "cooperate with outreach units so that recipients who miss medical and/or dental checkups receive prompt services");~ 265 (defendants must "encourage the acceptance of case management by recipients.")
Thus, whether "informing" has been done "effectively," or an outreach workload handled "effectively," wholly depends on the goals one hopes to effect. All three ofthe above-listed outreach goals - facilitating clear knowledge or understanding, reaching the maximum number of eligible class members, and persuading or encouraging class members to obtain care - are present to a large extent in the decree, and were at the heart of the parties' agreement. These are the purposes that appear repeatedly within the "four comers" of the nearly one hundred pages of the decree.
The testimony of several witnesses supports this view of what constitutes "effective" outreach. While these witnesses' individual definitions of"effective" cannot be used as evidence ofthe parties' intended meaning ofthe term, they do paint a picture of a commonsense understanding of what it means to conduct outreach effectively that bolsters the court's above analysis and parsing of the decree. For example, one witness testified that defendants' outreach efforts are not effective, based on "the numbers of clients that we see in our program that still
have very little, if any knowledge about Medicaid services and how to access them." TR 25, lines
17-24 (Testimony ofMs. McHan) (emphasis added). Another witness agreed, noting that while "[t]he efforts have been put into place," that she did not "see that they have been effective," since a "large number of [class members] still don't understand ... the need for repeated [] visits." TR
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174, lines 18-24; 235, lines 10-19 (Testimony ofMs. Singleton)(emphasis added). A third witness testified that the defendants' outreach program
is not accomplishing everything that it's intended to.... [I]fit were accomplishing what it was intended to do, it would be educating the parents about the value of early checkups, about the value of keeping appointments on a regular basis and getting care for their children when there was not a problem. TR 329, lines 8-25 (Testimony ofDr. Seale)(emphasis added). Again, while these comments are not evidence in themselves of what the parties meant by "effective," the witnesses' collective emphasis on the numbers of class members with little knowledge, on the superficiality of their understanding, and on the failure of outreach to result in a significant number of requests for treatment lends further support to the court's assessment of the meaning of the term "effective." With these background provisions in mind, the precise meaning of"effective" need not be determined. Whether the parties intended it to mean that outreach effectuate the goals of understanding, of reaching maximum numbers of eligibles, or of persuading them to use services, the evidence clearly demonstrates defendants' ineffectiveness in all three senses of the word. First, if the defendants' duty to effectively inform and serve were interpreted to require defendants to effectuate understanding in the minds of those class members subjected to outreach, defendants' August, 1998, "Outreach and Marketing Report" clearly demonstrates their widespread failure to bring about understanding of the program, or even awareness of its existence, among the plaintiff class. P.Ex. 0-1, see also Section II(B)(1).25 If, instead, "effectiveness" is measured by defendant's success in reaching large numbers of the plaintiff class
25In addition to these cited exhibits, plaintiffs presented credible witnesses who testified to the lack of knowledge among class members ofthe various services offered by Texas Health Steps. For example, Ms. Singleton testified to class members' lack of knowledge based on her extensive experience in serving class members as a provider.
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entitled to various forms of outreach, the Outreach and Marketing Report, P.Ex. 0-1, is similarly damning.26 That report clearly demonstrates that defendants have been ineffective in contacting large numbers of class members entitled to oral outreach in an overall effort to inform the population ofthe program's existence. Specifically, 60% of respondents reported knowing only "very little" or "nothing at all" about the program.
Were the term "effective" read to require some measure of success in encouraging or facilitating recipient participation, defendants' failure would be most dramatic. As noted above, only about 25% of class members who are informed of the program by defendants actually receive medical checkups after having received outreach. These figures are a far cry from "effective informing" if the goal to be "effected" is the actual receipt of care. So, too, are the startlingly low participation rates among class members in key health components in Texas Health Steps, related in Section II(B) of this memorandum opinion.27
26 Equally telling is the evidence that the staff-to-member ratios are such that one could not possibly infer that large numbers of class members are being informed, particularly in light of the special barriers to outreach posed by characteristics of the plaintiff class. These barriers are enumerated in the decree itself and were described by plaintiffs' expert witness, Ms. Singleton. See Section I(B).
27Whether the goal to be "effected" is to achieve clear understanding among some members of the class, to effect widespread dissemination among the class, to persuade class members to accept medical services, or some combination of these goals which form the textual fabric of the decree, the court adopts a commonsense notion of what degree of success in these areas is necessary for defendant's performance to be deemed "effective" under paragraphs 32 and 52 of the decree. Due to the particularly dismal performance rates of defendants under all three interpretations of "effective," the court need not inquire as to whether the state need score an "A+" or merely a "C" to be deemed an "effective" informer. Cf King v. Allied Vision, Ltd, 65 F.3d 1051, 1059 (2nd Cir. 1995) ("Whatever constitutes 'immediate,' it is certainly less than three weeks.")
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In conclusion, plaintiffs' evidence aptly demonstrates that defendants have failed to maintain sufficient staff and other reasonably necessary resources to handle their workload promptly and "effectively," and to "effectively" inform recipients about Texas Health Steps. Therefore, it is found that defendants are in violation of paragraphs 32 and 52 ofthe decree. D. Providers' Requests for Outreach: Findings of Fact Regarding Violations of Decree
Plaintiffs' concerns about defendants' outreach program include a complaint that defendants have not provided adequate outreach for the recipients whose health care providers request outreach, as mandated by paragraphs 33 and 96 of the decree. They note that under paragraphs 32 and 52, discussed at length above, this outreach must be "effective." However, plaintiffs rely solely on the experience ofMs. Singleton, who requested outreach assistance on behalf of five patients. Defendants responded by sending letters, and then closed the cases. TR 172, line 23 to 173, line 24. While the court finds Ms. Singleton to be a credible witness, her lone account of her experience involving the defendants' arguably inadequate outreach does not establish by a preponderance that defendants have failed to effectively inform this particular subcategory of class members entitled to oral outreach under paragraph 33. Plaintiffs also rely on the fact that in August of 1999, defendants' outreach units answered only 243 providers' requests for outreach. P.Ex. 0-3. In certain regions of the state, defendants responded to no requests at all during that time. !d. However, the court has not been provided with any benchmark for the number of provider requests to which defendants should have responded. The evidence also revealed that provider requests decreased from well over 2,000 per month during 1998 and 1999 to under 700 in December of 1999. Defendants proffer this decline as evidence that their
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outreach to providers has had educative effects, while plaintiffs argue that providers are unaware of their ability to request aid and information. D.Ex. 94.
Based on the above evidence, it is found that plaintiffs have not met their burden with respect to this particular group, and did not, therefore, establish a violation above and beyond the violation detailed above, in Section I(C). It is noted that this finding does not in any way affect the above finding that defendants are in violation of paragraphs 32 and 52 with respect to the larger group entitled to oral outreach under paragraph 33. E. Outreach Reports: Findings of Fact Regarding Violations of Decree
Finally, plaintiffs seek to enforce the outreach reporting requirements at paragraphs 60 and 61 ofthe decree. Specifically, plaintiffs complain that defendants fail to report separately on outreach efforts made to distinct groups of class members. The court is unaware of any decree provision requiring defendants to deliver the data required under paragraph 60 in a format that distinguishes among subgroups in the plaintiff class. Therefore plaintiffs' invitation to impose the structure of paragraph 33 onto paragraph 60, which sets forth clear and unambiguous reporting requirements, will be declined.
Plaintiffs also maintain that they are entitled to reports about the receipt of checkups after oral outreach that separate medical from dental checkups. Paragraph 61 28 does not, on its face, require defendants to distinguish those class members who receive dental checkups from those who receive medical checkups following outreach, although this would appear to make sense in light ofboth parties' desire to monitor effectively the outreach program and target specific areas
28Paragraph 61 provides that defendants "will develop and implement a method that reports the number and percent of recipients who receive medical and/or dental checkups after receipt of oral outreach."
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for improvement. Despite the sound logic behind plaintiffs' request, under Armour, the court cannot go beyond the language of the decree. Hence, defendants will not be held to have violated paragraph 61.
Issue II: Medical and Dental Checkups
A. Overview Plaintiffs claim, next, that defendants have not complied with paragraphs 2, 35, 37, and
143 ofthe consent decree, which outline plaintiffs' entitlements to medical and dental checkups under 42 U.S. C. §§ 1396a(a)(43V9 These paragraphs provide that class members "are entitled to both medical and dental checkups on a regular schedule,"~ 2, and "to all needed follow up health care services that are permitted by federal Medicaid law."~ 3. Paragraph 143 states that "[d]efendants must provide periodic dental checkups and needed dental services to relieve pain, restore teeth and maintain dental health for EPSDT recipients...." Paragraph 35 describes the schedule for medical checkups as required by the decree;30 the schedule for dental checkups is
29As noted above, this statute, which details the state's obligations pursuant to their participation in the federal Medicaid program, mandates that the state's plan must "provide for'' the "informing" of eligible recipients ofEPSDT services of the availability of those services, 42 U.S.C. 1396a(a)(43)(A); must "provide for" the "providing and arranging for the provision of such screening services in all cases where they are requested;" 42 U.S. C. 1396a(a)(43)(B); and must "provide for" the "arranging for" corrective or follow-up treatment where the need for such care is disclosed by such screening.
30Through 1999, the schedule for medical checkups entitled class members to medical checkups at birth, 1-2 weeks, 2 months, 4 months, 6 months, 9 months, 15 months, 18 months, 24 months, 3 years, 4 years, 5 years, 6 years, 8 years, 10 years, 12 years, 14 years, 16 years, 18 years, and 20 years of age. This court's February 28, 2000 order modified paragraph 35 to provide complete medical checkups for teenage class members every year instead of every other year.
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governed by paragraph 37. Defendants are required by federal law to set these schedules. 42 U.S.C. §§ 1396d(r).31 Paragraphs 35 and 37 incorporate by reference these "periodicity schedules" created by the state and impose an additional obligation upon defendants to provide oral outreach to recipients who miss a medical or dental checkup "due" or required under such a periodicity schedule. Based on these paragraphs, plaintiffs claim that defendants have failed to provide plaintiffs with needed medical and dental checkups. Plaintiffs claim, additionally, that defendants have failed to provide plaintiffs with adequate reports on the checkups performed on all class members.
The evidence relating to whether defendants have violated these decree provisions is presented below. First, findings of fact relating to the provision of medical checkups are recited. Second, findings of fact relating to the provision of dental services, including those concerning defendants' recruitment of dental providers, are made. Third, defendants' provision of medical and dental checkups to teens is reviewed. Fourth, defendants' provision of checkups to abused and neglected class members is examined. These sections report the court's findings offact. Section IT(C) sets out defendants' violations of the decree in relation to all of these matters. Section II(D) deals with defendants' reporting of data relating to the provision of checkups to class members.
31Title 42 U.S.C. §1396d(r) defines "early periodic screening, diagnostic, and treatment services" to include "screening services ... which are provided ... at intervals which meet reasonable standards of medical and dental practice, as determined by the State after consultation with recognized medical and dental organizations involved in child health care..." 42 U.S. C. §§ 1396d(r)(l )(A)(i).
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B. Findings of Fact: Checkups Medical Checkups
The evidence at the hearing clearly demonstrated defendants' noncompliance with decree provisions requiring the provision of medical checkups to the plaintiff class. As evidence that class members are not receiving checkups,32 plaintiffs first point to the defendants' reported medical checkup "participation ratio" for fiscal year 1998, which was .66. D.Ex. D-97. The participation ratio is a "ratio derived by looking at the number of [class members] who have received at least one [checkup] over the expected number of [class members] that should receive a [checkup] during that year." TR 446, lines 6-11. (Testimony ofRick Allgeyer, Ph.D. 33). The number of class members who should have received a checkup during the year is adjusted to account for the average period ofMedicaid eligibility (about .7 years, or slightly more than eight months) during the year and for the schedule for medical checkups. TR 450, line 18 to 451, line 22. Defendants report this figure annually to the Health Care Finance Administration (HCFA), the
32Plaintiffs presented considerable evidence about the importance of checkups, and the dire consequences to children's health that can result when checkups are missed. This evidence, while compelling, does not bear on the issue ofwhether or not defendants are in violation of the decree. Additionally, plaintiffs presented evidence of particular children who missed checkups to their detriment. For example, plaintiffs presented the story of a deaf class member who reached the age of seven without having had a hearing evaluation, a mandatory component of a Texas Health Steps medical checkup. They also presented evidence about young class members who had not been tested for lead poisoning, another mandatory component of checkups. P.Ex. M-4 at 2-5, 211, 2-12, 2-21. This evidence will be considered as demonstrative of the fact that some class members do not receive the required checkups; however, the court relies more heavily on the statistical evidence discussed in the text above to reach a conclusion about defendants' compliance with the state-wide decree in this action.
33Dr. Allgeyer, the Director of Statistical Services ofTDH, and Program Manager ofthe Department's Research and Public Health Assessment Division, was certified by the court as defendants' expert in statistical reporting, data collection, and in the analysis and dissemination of federal and state program information.
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federal agency responsible for oversight of the Medicaid program, in a "HCFA 416" report detailing participation in the program. P.Ex. M-39.
Not surprisingly, defendants maintain that actual participation by the plaintiff class in the dental and medical checkup program is higher than the reported statistic. D.Ex. D-96. Plaintiffs maintain that actual participation is lower than reported. More specifically, plaintiffs contend that the participation ratio, computed by defendants in accordance with instructions from HCFA, represents an inflated measure of the actual receipt of services because it is adjusted for the average length oftime that class members receive Medicaid during the reporting period.34 After reviewing the evidence presented, the court is in agreement with plaintiffs that the reported participation ratios are inflated indicators of the actual participation rates among the plaintiff class. 35
34For example, according to a hypothetical presented by plaintiffs, if ten four-year-olds receive Medicaid for only six months (half a year), the participation ratio method mandated by HCFA would reduce the number often class members by one-half, to five. Thus, if the ten class members received five medical checkups, the participation ratio would be 1.0, or 100%, despite the fact that only one-half of the ten children eligible for the checkup had received the service. Defendants base their methodology on the assumption that not all of the ten children would be "due" for a checkup during the period of their eligibility, as a four-year-old who had recently received a checkup just before being placed on the Medicaid program would not be "due." Plaintiffs acknowledge this possibility, but argue that the vast majority of newly-eligible class members have not recently seen a doctor; hence, they argue, a more acceptable empirical assumption would be that all ten, or at least some high fraction of the ten, are in fact "due" upon enrollment. It is noted that only a well-supported estimate of the likelihood of a newly-enrolled participant's having recently received a checkup just prior to enrollment will enable the parties to resolve their current disputes concerning the accuracy of the participation ratio as an indicator of actual receipt of services.
35Defendants also rely on a survey of class members conducted by plaintiffs which showed that in 1998, 91% of class member respondents reported that families in their area were not having problems getting medical or dental care. D.Ex. 95. However, this loosely-conducted survey is found to be highly unreliable. The court finds that the optimistic answers given by class members are most likely to be non-representative of the true state of affairs, given the pitfalls of
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enrolled in the Texas Health Steps Program. Specifically, in sixty-five of Texas' 254 counties, class members' need for doctors "dramatically exceeds provider to client ratios," while in nineteen additional counties, defendants report "limited provider support for the existing client population." P .Ex. D-13.
Dental Checkups
Services
Abundant evidence was presented that clearly demonstrated that class members do not receive adequate dental care. They crowd emergency rooms in hospitals, suffering from acute forms of dental disease that, while easily preventable, often lead to such health complications as serious oral infections, dehydration, fever, and malnourishment stemming from the inability to eat.36 In 1998, only 19% of class members received at least one dental checkup. P.Ex. D-3 at 5. This figure declined from 21% in 1997, and rose again to 21% in 1999. P.Ex. D-14.37 Even fewer class members receive all of the checkups required by defendants' dental periodicity schedule, which entitles class members over age one to a dental checkup every six months. ~ 37. Although
self-reporting. Nonetheless, despite the irrefutable reality that not all class members receive all, or even any, of the services to which they are entitled, participation rates in the state have steadily increased since the consent decree was approved. For example, in 1993, the (inflated) medical checkup participation ratio was .29. TR 344, lines 14-16. Since that time, the rate has roughly doubled. However, as noted above, defendants' progress per se is not at issue, as it does not fall within the four corners of the decree.
36Testimony ofDr. Seale, TR 260, line 19- TR 261, line 7. 37The situation in certain regions of the state is even more dire. For example, in fiscal year 1999, only 11.5% of class members in Region 9 over the age of one year received one dental checkup. That same year, in Region 1, only 14.1% of class members eligible for dental checkups received one. P .Ex. D-14.
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the average period ofMedicaid eligibility for class members was slightly more than eight months in 1998, only 3.7% of class members received the required two dental checkups in 1999.38 P .Ex. D-14. Particularly disturbing is the statistic reported in defendants' 1998 "State-Wideness Report" that roughly one million Texas Health Steps eligibles had received no dental services for that year. P.Ex. D-3. Furthermore, the number of class members overdue for dental checkups has steadily increased every year between fiscal years 1997 and 1999. P.Ex. 0-5.
In 1998, 38% of the class received some form of dental treatment.39 P.Ex. D-3 at 5. However, the fact that 38% of Texas Health Steps eligibles received at least one dental "service," as opposed to a checkup, is consistent with the program enrollees' tendency to seek dental services only in emergencies. TR 263, line 23 to TR 265, line 7 (Testimony of Dr. Seale). Viewed in conjunction with the insufficient number of children receiving full checkups, the "services" statistic indicates that while class members may be receiving some form of"dental service," they are most likely receiving such services in emergency settings, and are not receiving the preventive services to which they are specifically entitled under the EPSDT program. Id
Defendants emphasize that in 1998, approximately 20% of children enrolled nationally in EPSDT utilized dental services, as compared with 32% of enrolled children who utilized the dental services provided in Texas, a figure which steadily increased during the years 1996 through
38 Dr. Seale testified that this number was "extremely low." TR 256, lines 6-10. 39 It is noted that the parties disagree about the best way to measure the availability of dental services to class members. Defendants believe that dental utilization is best measured by looking at the utilization of all dental services, while plaintiffs appear to focus on the dental checkup as the most important indicia of utilization. It is concluded that the relevant indicator for purposes of plaintiffs' motion to enforce paragraphs 37 and 143 ofthe decree is the dental checkup, as those paragraphs unambiguously refer to dental checkups.
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1998. D.Ex. D-81. Defendants cite the fact that Texas Health Steps has produced better results than the national average as evidence that defendants have complied with the decree by exceeding any minimum goals contemplated by the parties when they entered into it. However, because Texas provides dental services beginning at age one, whereas many other states begin providing dental services at age three, Texas' higher utilization rates may simply reflect a larger number of eligibles instead of a higher participation rate among eligibles relative to other states.40 TR 271, lines 1-11; TR 313, line 18 (Testimony ofDr. Seale). Provider Recruitment
Both parties presented statistics relating to the availability of dentists accepting Texas Health Steps enrollees. Defendants emphasized that while the ratio of dentists to the general population in the state of Texas in 1999 was roughly I : 2,600, the ratio of participating dentists to the Medicaid population was 1 : 584. D.Ex. D-104. However, plaintiffs introduced evidence that of the Medicaid providers identified by defendants, only one-third were "high volume" providers, or providers likely to be able to accept a new enrollee in need of a checkup. TR 268, line 21-25 (Testimony ofDr. Seale); P.Ex. D-12. Defendants' Director of Oral Health, Jerry

~r. Seale's testimony also effectively demonstrated that defendants' other main source

of dental statistics, the "Make Your Smile Count" study is highly unreliable, as it is inconsistent with the defendants' own "State-Wideness Report," P.Ex. D-3, relies on information reported by

parents who are often confused about their children's actual psychological incentives to over-report their utilization, and

receipt of services and may have presents shockingly high participation

rates that Dr. Seale labeled as unrealistic. TR 323, lines 9-10; D.Ex. D-3, D-107. She concluded

that "the statewideness report is probably more realistic." TR 285, lines 19-23. The court, after

reviewing the various sources of data, is inclined to agree.

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Felkner, D.D.A., M.P.H.,41 agreed with this assessment, noting that an enrolled dentist "could see one [class member] a year and still be classified as an active dentist." TR 809, lines 16-25.
In addition, multiple witnesses testified concerning the severe shortage of dentists in various regions of the state. For example, the director of a case management program for children with special health care needs in a large area surrounding Abiliene, Texas, testified that many families are having difficulty finding a dentist who will accept Medicaid. TR at 20, lines 79. (Testimony ofMs. McHan). A witness from the Texas Migrant Council in Lubbock related that "[a] lot of towns [in the Panhandle] don't have Medicaid providers, either medical or dental. A lot of the time, we ... have to bus these young children an hour to the dentist." P.Ex. A-4 at 12-13 (Deposition ofNancy Lloyd). The shortage of dentists in the Arlington-Dallas area was also detailed, including the fact that "the dentists are so limited that the referrals that we make need to be for kids that got [sic] abscesses and rotten teeth. . .those are the ones that generally get in." TR 205, lines 4-18 (Testimony ofMs. Singleton).
This shortage of dentists who are willing to see class members is statewide.42 TR 24, lines 10-12 (Testimony ofMs. Singleton). Defendants themselves agreed in October of 1999 that there were at that time 136 counties in which "the needs of a client population ... dramatically exceed[ed] provider to client ratios."43 P.Ex. D-13. Statewide, although about 2,900 dentists are
41The court qualified Dr. Felkner as an expert in "the dental services provided by the Texas Health Steps program" without objection from plaintiffs. TR 795, lines 7-10.
4~s. Singleton is familiar with class members' problems with gaining access to dental care by virtue of her work with Head Start centers throughout the state. TR 241, lines 4-9; see also TR 217, line 5 to 218, line 5.
43These counties have severe shortages of doctors, dentists, or both. TR 833, lines 16-18. Ofthese counties, 71 show severe shortages of dentists or ofboth dentists and doctors. P.Ex. D-
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enrolled, only roughly 1,700 actively serve class members. TR 825, lines 4-19. If all class members over the age of one year were to receive the dental care to which they are entitled, it would be necessary that these active dentists each care for 876 class members. This load is not currently being borne by the active dentists. TR 826, line 23 to 827, line 6 {Testimony ofDr. Felkner).44
Worse, the number of dentists enrolled in the program is currently decreasing in Texas due to low reimbursement rates and frustration with the defendants' failure to change those rates. TR 330, lines 11-21. (Testimony ofDr. Seale). Low reimbursement rates for dental services from the state makes the recruitment of additional dentists extremely challenging.45 TR 824, lines 5-12 TR 823, line 24 to 824, line 4 (Testimony ofDr. Felkner)~ P.Ex. D-12. Even though defendants admit a severe shortage of dentists exists in 136 counties, defendants propose to recruit only seventy-five additional Texas Health Steps providers (doctors and dentists) during the year 2000. TR 833, line 24 to 834, line 2 (Testimony ofDr. Felkner)~ P.Ex. D-13 at 1.
13. 44Plaintiffs calculate that about two-thirds of active Texas Health Steps dentists each cared
for fewer than 100 class members over a three-month period. P.Ex. D-12. 45According to Dr. Felkner, despite the defendants' efforts to recruit dentists into the
Medicaid program, the number of enrolled dentists has been "very flat" for four years. Dr. Felkner testified that "[a]s a rule of thumb, overhead expenses run about 65 percent for the average dental practice," although defendants currently reimburse dentists at a rate which is "definitely less than 65 percent." TR 836, lines 2-13. He added that, during the most recent session of the Texas legislature, defendants requested funds to increase dental reimbursement rates by at least 19%. TR 835, lines 5-18. They succeeded in obtaining an increase of about 3.5%. TR 837, lines 9-10.
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Teens Defendants' failure to provide checkups has a particularly severe impact on teenage class members, for whom the 1998 participation ratio for medical checkups or special adolescent visits was .64. D.Ex. D-9 (11- to 18-year-olds.) Again, such ratios are inflationary because they rest on the assumption that class members receive checkups randomly throughout the year, and do not, therefore, account for the reality that many class members need checkups immediately upon enrollment because they are "overdue."46 Specifically, in fiscal year 1999, only 24% of six- to fourteen-year-old class members received a checkup or adolescent preventive checkup, while only 12.4% of those aged fifteen to twenty years received such a checkup. P.Ex. CH-26. Additionally, because of the expected growth in the number of fifteen- to eighteen-year-old enrollees resulting from the implementation of the new State Children's Health Insurance Program (SCRIP), defendants' failure to provide services to the teenage population is a particularly grave aspect of defendant's extensive failure to serve the class.47 P.Ex. CH-25.
Abused and Neglected Class Members Substantial evidence was introduced that demonstrated defendants' failure to address the needs of the roughly 13,200 abused and neglected class members supervised by the Texas
46plaintiffs note, too, that defendants' exclusion of nineteen- and twenty-year-olds raises the reported participation rate for teens, as these older teens receive fewer services than their younger counterparts.
47For example, in fiscal year 1999, less than 19% of the newly enrolled fifteen- to eighteen-year old class members received at least one medical checkup. P.Ex. CH-25. Defendants respond that the participation rate for teens eligible for the Texas Health Steps program has risen from .37 in fiscal year 1996 to its current level. D.Ex. 98. However, as noted previously, it is unclear why defendants progress since 1996 is put at issue by the decree provisions sought to be enforced by plaintiffs.
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Department ofProtective and Regulatory Services. The receipt of checkups by this particular population is governed not only by paragraphs 2, 3, 35, and 37, but also by paragraph 212. This paragraph required the parties to submit a Memorandum ofUnderstanding to the Court which would, among other things, "assure that all EPSDT recipients under the supervision of TDPRS receive all medical and dental checkups when due." ~ 212. The defendants' reports on various subgroups within the larger class of abused and neglected children48 reveal that this at-risk group does not receive all medical and dental checkups when due.49 P.Ex. R-11, R-14. C. Violations of Decree: Checkups
With the above evidence in mind, the court now considers plaintiffs' claims that defendants have violated specific decree provisions. Plaintiffs' primary argument appears to be that, since participation rates in the dental and medical checkup programs are extremely low, defendants have failed to provide the services to which plaintiffs are entitled, and have therefore violated the decree. As noted above, in enforcing the consent decree, the court is bound solely by its language. With this in mind, the court turns to the decree. The paragraphs sought to be enforced by plaintiffs in relation to medical and dental checkups are:
2. EPSDT is intended to provide comprehensive, timely and cost effective health services to indigent children and teenagers who qualify for Medicaid benefits. Checkups are the cornerstone of the program. They assess recipients' health, provide preventive care and counseling (anticipatory guidance) and make referrals for other needed diagnosis and treatment. 42 U.S. C.
48These reports provide information about the children in adoptive placements for the months of October and November of 1999, those in relative placements during the months of August through November of 1999, and those in foster care for the months of July through November of 1999.
49pebruary of2000 is the most recent month for which defendants have reported data for this subgroup. For that month, the percentage of class members supervised by TDPRS who missed medical checkups ranged from 27 to 38 %, depending on the category of the child's placement. The percent who missed dental checkups ranged from 40 to 60 %. P.Ex. R-14.
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§§ 1396a(a)(43); 1396d(r). Recipients are entitled to both medical and dental checkups on a regular schedule. About 48% of recipients received at least one medical checkup in fiscal year 1994 (FY94), according to reports Defendants filed with the United States Department of Health and Human Services. 3. Recipients are also entitled to all needed follow up health care services that are permitted by federal Medicaid law. 42 U.S. C. § 1396d(r). 35. Beginning on September 1, 1995, outreach units will provide oral outreach to all recipients who miss a medical checkup that is due on or after July 1, 1995. "Due" means a medical checkup that is due according to the current Texas EPSDT periodicity schedule, i.e., newborn, 12 weeks, 2 months, 4 months, 6 months, 9 months, 12 months, 15 months, 18 months, 24 months, 3 years, 4 years, 5 years, 6 years, 8 years, 10 years, and annually thereafter through and including 20 years of age. so 37. Beginning no later than June, 1997, outreach units will provide oral outreach to all recipients who miss a dental checkup that is due on or after April1, 1997. "Due" means a dental checkup that is due according to the Texas EPSDT periodicity schedule, i.e., starting at 1 year and continuing every 6 months. 143. Defendants must provide periodic dental checkups and needed dental services to relieve pain, restore teeth and maintain dental health for EPSDT recipients. 42 U.S.C. § 1396d(r)(3)...
"
212. TDH and TDPRS will present a Memorandum of Understanding [that] will ... assure that all EPSDT recipients under the supervision of TDPRS receive all medical and dental checkups when due.
What obligations do these six paragraphs impose upon defendants? First, it is noted as a preliminary matter that paragraphs 35 and 37 are unavailing for the plaintiffs. While these paragraphs do make reference to the state's schedules for medical and dental checkups, they do so solely for the purpose of establishing when the outreach duties are to be triggered, and do not support plaintiffs' claims for timely medical and dental checkups.
Next, paragraph 2 emphasizes the importance of checkups to the overall success ofthe EPSDT program. The only obligatory language in this paragraph, however, appears in its fourth sentence, where it is stated that "[r]ecipients are entitled to both medical and dental checkups on a
50This schedule reflects a change from the schedule in use when the court originally entered this decree in 1996. At that time, the schedule included biannual medical checkups for teenagers and more limited adolescent preventive visits in the alternate years.
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regular schedule." Similarly, paragraph 3 states that "recipients are also entitled to all needed follow up health care services that are permitted by federal Medicaid law. 42 U.S.C. § 1396d(r)." The argument between the parties stems from a dispute over the meaning of the word "entitled" as used in these sentences.
Defendants' understanding is that class members are "entitled" to services, but that they must first ask for them. Under this common-sense understanding of the term, argue defendants, plaintiffs must have requested services and have been denied them for defendants to be out of compliance with paragraphs 2 and 3. Plaintiffs presented no evidence of having requested and having been denied services, nor did they argue that the participation data is evidence that some requested services were actually refused by defendants. 51 Under this understanding of the word "entitled," then, plaintiffs have not met their burden in showing a violation by defendants.
Defendants maintain that this "request defense" is strongly buttressed by the language of the EPSDT statute itself, which requires that state Medicaid plans provide for the delivery of services "in all cases where they are requested." 42 U.S.C. § 1396a(a)(43)(B). It is noted that the requirements of federal law would be irrelevant to this court's construal of the decree under
Armour but for the fact that the parties elected to incorporate by reference these statutes in the
many paragraphs that detail defendants' obligations to plaintiffs, including paragraphs 2 and 3. Therefore, federal law must inform the court's interpretation of these provisions.
Principles ofStatutory Interpretation 42 U.S.C. § 1396a(a) provides, in pertinent part:
51Several witnesses testified that defendants are not aware of a single class member who has requested services and not subsequently received those services. TR 348, lines 22-25; 842, line 22; 437, lines 4-7; 373, lines 1-15; D.Ex. 14.
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A State plan for medical assistance must -(43) provide for(A) informing all persons in the State who are under the age of 21 and who have been determined to be eligible for medical assistance including services described in section 1396(a)(4)(B) of this title, of the availability of early and periodic screening, diagnostic, and treatment services as described in section 1396d(r) or this title and the need for ageappropriate immunizations against vaccine-preventable diseases, (B) providing or arranging for the provision of such screening services in all cases where they are requested, (C) arranging for (directly or through referral to appropriate agencies, organizations, or individuals) corrective treatment the need for which is disclosed by such child health screening services, and (D) reporting to the Secretary ... the following infonnation relating to early and periodic screening, diagnostic, and treatment services provided under the plan during each fiscal year ...
Congress has enacted a statute that requires, first, the informing of all people eligible for EPSDT of the benefits to which they are entitled, § 1396a(a)(43)(A); second, the provision of those services wherever requested, § 1396a(a)(43)(B); third, the subsequent provision offollowup or corrective treatment for health problems identified, § 1396a(a)(43)(C); and, fourth, the reporting of data relating to the provision of those services and treatments, § 1396a(a)(43)(D). Plaintiffs' response to defendant's reliance on the "request" language of part B of§ 1396a(a)(43) may be summarized as follows: Why should defendants be released from the duty to provide services simply because they have not been formally "requested," when they have violated part (A) by failing to inform members that such services exist? Structure and Context
The court declines defendants' invitation to read part B of§ 1396a(a)(43) in isolation from the rest of paragraph 43 is rejected in favor of the approach dictated by the "Whole Act Rule." Under this rule, a legislature passes judgment upon an act or amendment as an "entity, not giving one portion of the act any greater authority than another. Thus any attempt to segregate any portion or exclude any other portion from consideration is almost certain to distort the
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legislative intent." N. Singer, Sutherland on Statutes and Statutory Construction, § 47.02, p. 139, quoted in William N. Eskridge, Jr. & PhilipP. Frickey, Legislation: Statutes and the Creation of Public Policy (2d ed. 1995) 643. The Supreme Court has expressed agreement with this canon of interpretation: "When 'interpreting a statute, the court will not look merely to a particular clause in which general words may be used, but will take in connection with it the whole statute . . . and the objects and policy of the law, as indicated by its various provisions, and give to it such a construction as will carry into execution the will of the Legislature."' Kokoszka v. Be/ford, 417 U.S. 642, 650 (1974) (citation omitted).
In light of this principle, interpreting the directive to screen upon request in isolation of the context ofthe entire paragraph would likely result in the significant distortion or misinterpretation of part B. Therefore, the entire paragraph and its structure will be considered. As noted above, the "request" language appears in a four-part directive to the states, which might be rephrased in the following manner: you must inform, you must screen, you must treat, and you must report. This directive is, notably, chronological: it sets out a series of steps in which the population is first told about the program, then screened for health problems, and then given follow-up treatment. As a final step, data is sent back to Washington about the states' performance. In light of this chronological structure, it is presumed that Congress intended for eligible participants in the program to be informed of it before requesting services. That is, although eligible participants' rights to screenings were limited by Congress by the phrase, "in all cases where they are requested," that phrase was intended to refer to those cases where, having first been informed, eligible participants requested services. The meaning and scope ofthe limiting language are cabined by its location in the structure ofthe paragraph's chronology.
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A parallel phrase appears in part C, which deals with corrective treatment. In that part, states are directed to provide corrective or follow-up treatment, "the need for which is disclosed" in the screenings performed pursuant to part B. This choice of language leads to two conclusions. First, it adds support to the structural interpretation given above, wherein eligible participants are first informed, are given services in all cases where requests are made after having been informed, and are given corrective treatment in all cases where the need is disclosed after they have been screened. It supports the structure of"A, then B (for which A is a condition precedent), then C (for which B is a condition precedent)." Put simply, the informing was to lead to requests based on information, just as the screenings were to result in treatments based on screenings. Parts B and C are read in this parallel fashion because of their similar grammatical structure and use of sequencmg.
A second conclusion may be drawn from the fact that Congress did not choose to limit the provision of corrective treatment in part C by the "request" defense, but instead chose to make corrective treatment available wherever the need was demonstrated through screening. If the "request" language had been genuinely designed to limit defendants' duty to provide screenings even in cases where states had failed to inform eligible participants of the services, why then did Congress choose not to include such a limit on the provision of follow-up services? Why, if the request language was truly meant to limit the states' provision of checkups even where eligible participants had no knowledge oftheir right to receive regular checkups, did not Congress similarly limit the states' duty to provide follow-ups? Under the statutory principle of"expressio unius," which holds that words omitted, or the decision to omit language, may be just as significant as the decision to use particular words, the omission of the "request" defense in part C
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should inform the court's understanding of the "request" language in part B. Rather, its disappearance in part C suggests that the phrase was not meant to limit the states' duty to provide screenings in cases where requests were not made due to the states' failure to inform; otherwise, one would expect a similar limitation on follow-up services. This adds further support for the above-explained structure of"A, then B (for which A is a condition precedent), then C (for which B is a condition precedent)." Legislative Intent
A briefhistory of the program will aid the court's interpretation ofthis section. In 1967, Congress amended the Medicaid Act to provide for the mandatory provision ofEPSDT services to needy children under the age of21. § 1396d(a)(4)(B).s2 The "request" language was first injected into the statute in 1972, when Congress, as part of the Social Security Amendments of 1972, enacted a penalty provision to punish participating states for failing to provide child health screening services under Medicaid. s3 In 1981, this penalty was repealed, and the language requiring the informing, provision of screening services, and provision of follow-up treatment was
s2This amendment to the Medicaid statute required participating states to furnish "such early and periodic screening and diagnosis of individuals who are eligible under the plan and are under the age of 21 to ascertain their physical or mental defects, and such health care, treatment, and other measures to correct or ameliorate defects and chronic conditions discovered thereby, as may be provided in regulations of the Secretary."
s3 42 U.S. C. § 603(g) (effective October 20, 1972) (now repealed) provided:
Notwithstanding any other provision of this section, the amount payable to any State under this part for quarters in a fiscal year shall with respect to quarters in fiscal years beginning after June 30, 1974, be reduced by 1 per centum . . . of such amount if such State fails to(1) inform all families in the State receiving aid to families with dependent children under the plan of the State approved under this part of the availability of child health screening services under the plan of such State approved under subchapter XIX of this chapter, (2) provide or arrange for the provision of such screening services in all cases where they are requested, or (3) arrange for (directly or through referral to appropriate agencies, organizations, or individuals) corrective treatment the need for which is disclosed by such child health screening services.
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incorporated into a new paragraph, §1396a(a)(44), which in 1984 became §1396a(a)(43). The legislative history ofthe EPSDT program, while scant, clearly indicates that the 1967 amendment was the result of a growing need for health care among poor children. See Comment, Child Health Care: Unresolved Dilemma ofSection 1905(a)(4)(B) ofthe 1967 Social Security Act Amendments, 59 Geo.L.J. 965 (1971). Early in 1967, in response to this growing need, President Johnson recommended that Congress pass a comprehensive program providing early diagnosis and treatment of poor children with special health care needs. President Johnson, Welfare of Children, H.R.Doc.No.54 (1967).
Whatever might be discerned about the goals of the founders ofEPSDT, one may fairly assume that they did not intend to create a means by which states that fail to inform poor and unhealthy children about the program might turn around and use this as a defense to their failure to provide services. To the contrary, the "request" limitation was introduced as part of the penalty scheme injected in 1972, which was aimed at penalizing states whose efforts at compliance were less than commendable. More importantly, the "request" language was introduced in conjunction with the duty to inform - a point which concerns the structure of the 1972 and 1981 amendments, discussed above.
It is a fundamental principle of statutory interpretation that a court cannot allow a literal reading of a statute to produce a result "demonstrably at odds with the intentions of its drafters." Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982). Therefore, it is held that the "request" language may not be read to contravene the congressional intent, in 1967, to enact a program that would serve needy children, or Congress' subsequent intent to strengthen enforcement mechanisms against states that fail to provide those services. Defendants' reading of
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the "request" language - that the phrase permits them to avoid the duty to provide services where no services have been requested, even in cases where plaintiffs have not been informed so as to be able to make such requests- is in clear conflict with the legislative intent behind the EPSDT

statute.

Waiver

The doctrine of waiver undergirds the court's reasoning on this issue. Waiver is an intentional relinquishment or abandonment of a known right or privilege. Johnson v. Zerbst, 304 U.S. 458 (1938). In the context of criminal law, waiver of the right to counsel and of the right to remain silent must be voluntary and made knowingly and intelligently. Miranda v. Arizona, 384 U.S. 436, 444 (1966). The principles of waiver extend beyond the criminal context, into the civil context, where waiver is closely linked to the notion of due process. See Bueno v. City ofDonna, 714 F.2d 484 (5th Cir. 1983)(plaintiffs did not knowingly relinquish their right to a hearing when they were never aware ofthat right); Clarkv. Schweiker, 652 F.2d 399 (5th Cir. 1981)(no waiver of statutory right to counsel in hearing before Social Security Administration where Secretary of Health and Human Services failed to notify claimant of right to representation). Whether a particular right is waivable, whether the defendant must participate personally in the waiver, whether certain procedures are required for waiver, and whether the defendant's choice must be particularly informed or voluntary, all depend on the right at stake. See, e.g., 2 W. LaFave & J.

Israel, Criminal Procedure § 11.6 (1984). The doctrine ofwaiver is not, strictly speaking, applicable in the context of plaintiffs'
motion to enforce the instant decree; however, its principles form the basis of a useful analogy. In this case, the court is presented with a statutory right to health services, along with a statutory

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right to be informed of the right to health services. Thus, the right to periodic screenings upon request is unlike most statutory rights, in that Congress has specifically provided a concomitant right to be informed ofthe right to the services. Thus, this unique statutory right to "services upon request" must be viewed in light of the right to be informed. Because Congress has created the right to know of the right to services, the right to services upon request is, in this sense, akin to the right to remain silent and the right to counsel. Defendants in effect argue that plaintiffs have waived their right to services by failing to request them. However, under the logic of waiver, which looks to the parameters of the right at stake, the related statutory right to be informed would require defendants to inform plaintiffs of their rights to services before such "waiver," or failure to request, could be considered meaningful.
The Cases The court's exercise in statutory interpretation supports the commonsense notion that a poor and often isolated population should not be robbed of their rights to services upon request when they have not been informed ofthose rights. This commonsense notion was first applied to EPSDT in a case in which the defendant State oflndiana defended a remarkably poor record of performance with the contention that "[a]ny of the eligible children in this state can secure all of the requested services merely by requesting them from their local health provider." Stanton v. Bond, 504 F.2d 1246, 1250-51 (7th Cir. 1974). Though the Seventh Circuit did not specifically address the "request" language, which was at that time located in a different penalty section of the
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Social Security Act and therefore did not explicitly limit plaintiffs' rights to services under 42 U.S.C. § 1396d(a)(4)(B),S4 the court made short shrift of defendant's argument:
It is utterly beyond belief to expect that children of needy parents will volunteer themselves or that their parents will voluntarily deliever them to the providers of health services for early medical screening and diagnosis. By the time an Indiana child is brought for treatment it may too often be on a stretcher. This is hardly the goal of"early and periodic screening and diagnosis." EPSDT programs must be brought to the recipients; the recipients will not ordinarily go to the programs until it is too late to accomplish the congressional purpose. Stanton v. Bond, 504 F.2d at 1251. Relying on Stanton, the U.S. District Court for the District of Columbia has implicitly held that defendants who fail to inform the EPSDT population may also be held to violate §1396a(a)(43)(B) where services have not been provided, even in the absence of requests. Salazar v. District of Columbia, 954 F.Supp. 278 (D. D.C.1996). In Salazar, Medicaid applicants and recipients claimed that the District had both failed to inform them ofEPSDT services and to provide them with the services. Though it did not specifically address the "request" language in §1396a(a)(43)(B), which was the same at the time Salazar was decided as it is today, the court held that defendants had violated both §1396a(a)(43)(A) and §1396a(a)(43)(B). Id. at 328-331. Of particular interest is the Salazar court's holding that defendants had failed to provide the lead blood toxicity testing ofESPDT children. Id at 330. The court recited, as has this court, numerous statistics in support of the finding that the lead poisoning screenings had not been provided. The Salazar court also noted that only one plaintiff with a particularly compelling story had "actually requested" lead blood tests repeatedly and had
54See above discussion of the enactment of the EPSDT statute and subsequent amendments.
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been denied. Id at 306. Because this isolated tale of request and denial appears among a sea of statistics supporting the court's legal conclusion that defendants had failed to provide the services, it may be reasonably inferred that the Salazar court relied primarily on the failure to provide services, regardless of whether or not they had been requested by plaintiffs. It appears unlikely that the court based its finding of a violation on one plaintiff's story of a denied request, without explicitly saying so. It is more probable that the court's finding that defendant's outreach had been inadequate led the court to find the defendants in violation of §1396a(a)(43)(B) without consideration ofthe "request" issue, based on the commonsense principles discussed above.
The defendants' logic having been rejected by the court, it is hereby found, based on the evidence recited in Section II(B)(1) above, that plaintiffs have met their burden in establishing that defendants have violated paragraphs 2 and 3 of the decree. ss Similarly, it is found, based on the evidence relayed in Section II(B)(2) regarding defendants' provision of dental checkups to the plaintiff class, that defendants have violated paragraph 143. It is further found, based on the evidence in Section II(B)(4), that defendants have violated paragraph 21256 in failing to provide the required checkups to children in the custody ofTDPRS.
55The evidence related in Section II(B) of this opinion was primarily focused on the provision of checkups, rather than follow-up treatment. However, a finding that defendants have not provided checkups, in violation of paragraph 2, necessitates a finding that follow-up treatments subsequent to those checkups were also not provided. ~ 3.
56The court interprets the language in paragraph 212 cited in Section II(B) to be reiteration or stressing, with respect to a subgroup demonstrated to be at risk of not receiving care, ofthe defendants' general obligation under federal law to provide checkups to all class members.
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D. Checkup Reports: Findings of Fact Regarding Violations of Decree
Plaintiffs also complain of defendants' failure to report checkup data regularly and
accurately. Plaintiffs' argument is three-fold. First, plaintiffs maintain that defendants are in violation of paragraph 284, which requires that defendants report annually the "number and percent of recipients" who receive all oftheir scheduled medical checkups. Defendants report only "participation ratios" - the figures required by HCFA- instead of actual percentages.57 Defendants respond that the participation ratios are "professional, statistically valid, and [in
conformity] with reporting requirements established by the Health Care Financing Administration (HCFA)." Defendants' Response to Plaintiffs' Second Amended Motion to Enforce the Consent
Decree at 11.
The relevant language of the decree is as follows:
283. METHOD TO REPORT CHECKUPS First, Defendants report EPSDT participation statistics to the federal government every year on the HCFA Form 416. The HCFA Form 416 uses calculations to approximate the number of recipients who receive EPSDT medical checkups. 284. Every year from 1996 through 1999, Defendants will also report to Plaintiffs the number and percent of recipients who receive all of their scheduled medical checkups. They will further report the number and percent of recipients who receive all of their scheduled dental checkups. Defendants will provide these reports to Plaintiffs no later than December 31 of each year. 285. For these reports, Defendants will develop a method that records all recipients who receive the full number of scheduled checkups within a year.... The complexities associated with collecting utilization data require the parties' continued collaboration in the design and implementation of this system.
When read in conjunction with paragraph 283, which mentions defendants' pre-existing duty to report participation ratios to HCFA, paragraph 284 requires defendants to provide plaintiffs with more information; namely, "the number and percent of recipients who receive all of their scheduled dental checkups." Defendants' argument that HCFA Form 416 data fulfills their
57The difference between these two measures and plaintiffs' concerns about the use of participation ratio are discussed in detail above in Section II(B).
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obligations under paragraph 284 is therefore rejected. Paragraph 284 makes clear that plaintiffs bargained for a very specific type of data in addition to the "calculations" or "approxim[ations]" already required by HCFA. The word "also," in addition to the use of"number and percent" in place of"calculations" makes this plain.
Defendants maintain that plaintiffs have been inflexible in their demands and that the percentages required by paragraph 284 are impossible to obtain. It is true that "[t]he complexities associated with collecting utilization data require the parties' continued collaboration in the design and implementation of this system."~ 285. Plaintiffs must therefore collaborate with defendants in their pursuit ofthe required "number and percent." However, the above-quoted paragraphs make it apparent that plaintiffs bargained for the "number and percent," and not the Form 416 data referenced in paragraph 283. Because they have not furnished plaintiffs with this data, defendants are held to be in violation of paragraph 284.
Second, plaintiffs complain that defendants report information about class members who have received one medical or dental checkup per year, instead of all medical or dental checkups that are due. P.Ex. MC-20. The text of paragraph 284 makes clear that plaintiffs' position is correct. It is found that defendants are in violation for their failure to provide the data specifically described in paragraph 284.
Third, plaintiffs argue that defendants have violated paragraph 21258 by failing to provide complete reports on the receipt of checkups by abused and neglected children in the custody of
58Paragraph 212 requires the parties to create a Memorandum of Understanding that establishes a method to report the number and percent ofEPSDT recipients under TDPRS supervision who have received all of their medical and dental checkups, and "assure[s] that all EPSDT recipients under the supervision of TDPRS receive all medical and dental checkups when due."
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the Texas Department of Protective and Regulatory Services (TDPRS). Specifically, defendants' May 28, 1998 report was incomplete, and no complete report was provided until the fall of 1999. P.Ex. R-2. Plaintiffs correctly note that paragraph 212 mandates the reporting of the number and percent ofEPSDT recipients "under the supervision ofTDPRS" who receive services. Defendants respond that providing this data has been extremely difficult due to unforeseen difficulties. Defendants' Response to Plaintiffs' Second Amended Motion to Enforce Consent Decree at 10. However, this does not excuse defendants' failure to provide the data mandated by the decree. Defendants have failed to cite any decree language that would permit them to exclude certain subsets of those class members "under the supervision ofTDPRS." Therefore, it is found that defendants are not in compliance with paragraph 212. Their partial compliance will, however, inform the court in its formulation of appropriate orders of enforcement.
III. Issue Three: Corrective Action Plans
A. Corrective Action Plans for Lagging Counties: Findings of Fact Regarding Violations of Decree
As is stated in paragraph 271 of the decree, "Medicaid services, including EPSDT services, must be available in every political subdivision of the state." See 42 U.S. C. § 1396a(a)(1). To prevent regions of the state from lagging behind others in performance, and to ensure that class members throughout Texas receive the checkups to which they are entitled, the parties created the "State-Wideness" section ofthe decree. ~~271-81. The decree specifies that by March 30th of each year, defendants must report the number of class members who have received medical checkups and dental checkups, by county or cluster of counties.~~ 277, 280.
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They must then identify any counties that "lag behind" the rest of the state in the delivery of services to the plaintiff class. ~ 278. Finally, defendants must develop corrective action plans for any so-called "lagging" counties in an effort to improve participation in those counties. ~ 281.
Plaintiffs allege that defendants have not properly developed annual corrective action plans. Defendants respond that all required corrective action plans for the poorly-performing counties have been completed, and that the issues raised by plaintiffs concerning the particular methodology used by defendants are not governed by the consent decree. Alternatively, defendants assert that their methodology for creating and implementing the plans completely satisfies the standards set out in the decree, were the court to find that such standards exist.
What is "Lagging?" Plaintiffs are primarily concerned with the methodology used by defendants to identify the so-called "lagging" counties. Plaintiffs contend, first, that defendants label as "lagging" only those counties whose participation rates fall behind the average county participation rate, instead of those counties whose rates fall behind the "state average," as is required by the decree in paragraph 280. 59 As a result, plaintiffs assert, fewer counties are targeted for corrective action than are required to be targeted by the decree. It appears that plaintiffs understand the term "state average" to mean the participation rate for the state of Texas. Defendants respond that "state average" was used in paragraph 280 as shorthand for the average of the participation rates of each of the counties in the state. It is clear from the text of paragraph 280 that defendants' reading is
59paragraph 280 provides in full:
280. Defendants will complete a statewideness analysis every year by March 30. Defendants will identify the counties or county clusters that lag behind the state average for medical checkups beginning in 1996 and for medical and/or dental checkups beginning in 1997 and continuing annually thereafter for the duration of his agreement.
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correct. The words "state average" unambiguously refer to an average; therefore, the only question is: the average of what? The only logical answer is the one proposed by the defendants: the average of the county participation rates. Plaintiffs suggest no other average, but insist, erroneously, that the term "state average" should be read as synonymous with the participation rate for the entire state of Texas. This is simply not an average. Ideally, it would certainly be preferable to target for corrective action all counties with participation rates below that of the state; however, the court cannot look beyond the clear language ofthe decree.60
Counties with Few Class Members Plaintiffs next complain of defendants' decision to omit from the analysis all counties where fewer than 100 class members reside. P.Ex. CH-6 at 5, P.Ex. D-3 at 4. Defendants assert that these counties were excluded from the calculus because their sample sizes were too small. However, the parties obviously anticipated this problem, as the decree specifically provides that "counties where few recipients live may be clustered so that statistically valid results can be achieved." ~ 276. Nonetheless, defendants insist that "clustering non-adjacent counties" is an "invalid method for developing corrective action plans." Defendants' Response to Plaintiffs' Second Amended Motion to Enforce Consent Decree, at 13. It is unclear why clustering, or grouping the counties with low enrollee counts with adjacent counties with higher counts, would constitute an "invalid" method. Defendants have provided no expert testimony to that effect. Nor is it clear from the court's reading ofthe decree that the clustering of non-adjacent counties
60This particular phrasing of the decree has significant consequences for plaintiffs. For example, only ten out of Texas' 254 counties were identified by defendants as requiring corrective action in 1998, whereas only 110 of the 254 counties "equaled or exceeded the statewide participation rate." P.Ex. CH-6.
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would be required. Regardless, the fact remains that the defendants agreed to the terms of paragraph 276. There is no provision in the decree for the omission of any county from the calculus. On the contrary, the entire "state-wideness" section is geared toward the inclusion of neglected areas of the state and achieving consistency across the state's vast territory and numerous counties.~~ 271-274. Even had defendants been able to produce expert testimony that clustering is not "statistically valid," within the meaning of that phrase as it appears in paragraph 278,61 they would likely be bound by their own prior sanctioning of clustering in paragraph 276. Therefore, it is found that defendants are in violation of the corrective action provisions of the decree due to their failure to include counties with few class members. ~~273-81.
Managed Care Counties Plaintiffs also complain of defendants' decision to omit all counties (hereafter referred to as the "managed-care counties") in which defendants require class members to receive services from managed care organizations (hereafter referred to as "MCOs"). P.Ex. CH-6 at 5. Again, as noted above, no provision ofthe decree permits the omission of certain classes of counties from the analysis. The omission of managed care counties is particularly disquieting, because those counties report lower checkup participation rates than counties in which managed care has not been implemented. See Section IV(B)(4). Defendants concede that they are unable to obtain the reliable data that they need in order to include the managed care counties in the lagging county
61Paragraph 278 reads in pertinent part:
278.... Defendants will develop a statistically valid method to determine which counties or county clusters lag behind ... The method is subject to Plaintiffs' approval. Plaintiffs' approval is limited to whether the proposed method is professionally acceptable and valid.... Plaintiffs will not unreasonably withhold approval....
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analysis,62 citing differences in the reporting mechanisms used by fee-for-service entities and
managed care organizations as the source of their difficulties.63 Perhaps anticipating this
response, plaintiffs included in the decree a clear mandate that "TDH will assure by various means
that the number and percent ofEPSDT patients in each managed care organization who receive
all medical and dental checkups when due and information for outcomes research as needed is
accurately collected."~ 191 64. Notably, Dr. Allgeyre, defendants' Director of Statistics, testified
that he was unaware of this provision.
Defendants are under a clear obligation to secure reliable data for the managed care
counties and to include them in the lagging county analysis. The decree provides no legal basis
for defendants' excuses, which revolve around the alleged difficulty in obtaining data that they
explicitly agreed to furnish to plaintiffs.65 The decree plainly requires the collection ofthe data at
62For example, defendants admit that the data in their "Annual EPSDT Participation Reports" is incomplete for the years 1997 and 1998 because managed care data was not obtained. P.Ex. M-32, M-39. It is further noted that the Texas Health Quality Alliance, the agency with which defendants have contracted to obtain independent studies of their managed care initiatives, has reported that the managed care companies serving class members through contracts with the state do not maintain accurate, valid data about the receipt of services, including checkups. D.Ex. D-48.
63Defendants cite in particular the fact that "reports generated from encounter data are not representative of true utilization due to the movement from a claim basis ([fee-for-service] claim forms submitted for payments) to an encounter data basis (information submitted on capitated services)." Defendants' Response to Plaintiffs' Second Amended Motion to Enforce the Consent Decree, at 28. See also TR 460, line 20 to 461, line 5.
64Defendants' violation of this paragraph is discussed in more detail below, in Section IV(F).
65Defendants' apparent position that the data collection techniques of the managed care entities are beyond their full understanding or control is further evidence of their recalcitrance, as it is difficult to imagine that any one of the MCOs currently serving the State of Texas would leave behind a lucrative contract were the state to demand the data which plaintiffs seek - data to
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issue and does not provide for the exclusion of managed care counties. Defendants can cite no language in the decree in support of their failure to collect the data, or of their exclusion of said counties. Rather, as was mentioned in the above discussion concerning the counties with low numbers of eligible participants, the state-wideness section must be construed with an eye toward achieving the express goals of inclusion and statewide consistency.66 Therefore, it is found that defendants are in violation of the corrective action provisions of the decree due to their failure to include counties in which class members are enrolled in managed care. ~~273-81.
Checkups vs. Treatments Plaintiffs assert that defendants fail to report by county the number of class members who receive one or two dental checkups per year. Defendants have instead reported the number of class members who receive "at least one dental treatment." P.Ex. D-3 at 6. Plaintiffs suggest that because the percentage of class members who received dental checkups in 1998 (19%) is significantly smaller than the percentage of members who received any form of dental service (38%),67 defendants' dental services data do not paint an accurate picture ofhow many class members are receiving the required checkups by county. Paragraph 277 clearly mandates the
which plaintiffs are unambiguously entitled to under the decree. And, as the decree makes clear, even though defendants contract with managed care companies to provide services to many class members, defendants "remain ultimately responsible for the administration of the EPSDT program in Texas and compliance with federal EPSDT law."~ 300.
66The portions of the decree dealing specifically with managed care as it affects the plaintiff class provide further support for the court's interpretation that the decree requires the inclusion of the managed care counties in defendants' analysis. See Section IV.
67P.Ex. D-3 at 5. A similar gap appears in the 1997 data. !d. 58

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reporting of the receipt of dental checkups, not "services."68 It is therefore found that defendants are in violation of paragraph 277 ofthe consent decree.
Professionally Acceptable Data Analyses Finally, plaintiffs assert that the data in defendants' reports is not "professionally acceptable and valid," as required by paragraph 281 of the decree. The sole evidence for this assertion consists of correspondence authored by plaintiffs' counsel. Because these documents are hearsay, they cannot be considered for the truth of what they assert- that defendants' statistics are unacceptable or invalid. Even were the inconsistencies in defendants' data to be considered by the court, it is found that plaintiffs have not proven by a preponderance of the evidence that defendants have not met the decree's "professionally acceptable and valid" standard. Plaintiffs have provided no guidance for the court to ascertain where the boundary between unacceptable and acceptable might lie. Drawing such a line would likely be an onerous task. Such fine-tuning will not be necessary, however, as it is hereby found that the very small discrepancies in defendants' data ofwhich this court may take note do not amount to a violation of the standard set out in paragraph 281. B. Corrective Action Plans for Transportation System
Overview Plaintiffs allege that defendants have not completed the "Medical Transportation Studies" and transportation corrective action plans required by the decree. The aim of defendants'
68Paragraph 277 provides in full:
Beginning in 1996, Defendants will measure the percent ofEPSDT recipients who receive medical checkups. Beginning in 1997, Defendants will conduct 2 analyses. They will measure the percent ofEPSDT recipients who receive medical checkups and 2 dental checkups/year in each county or county cluster.
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transportation program is to assist class members, many of whom have no form of transportation, in coordinating transportation to their appointments.69 To improve the transportation program, defendants must assess the program by March of each year. ~~ 223-29. The aim of these annual evaluations is to assess class members' unmet transportation needs and their satisfaction with the program. In addition, ·paragraph 228 requires defendants to "take corrective action wherever the assessment indicates that transportation services are inadequate. 'Inadequate' means problem(s) exist that Defendants can reasonably be expected to correct." The decree also orders the parties to determine how to decide where corrective action is needed, how quickly it is needed, and what actions to take. ~ 229.
Role and Importance ofDefendants' Transportation System The Texas Legislature's Sunset Advisory Commission issued the following statement in a 1998 report: Transportation is among the most frequently cited barriers to service delivery for health and human services clients in Texas. Without transportation, clients are unable to access services for which they are eligible. Transportation is a problem primarily for those who do not own a personal automobile, or are unable to drive for other reasons, and thus considered "transportation disadvantaged." This can include people with a mental or physical disability ... and low-income individuals. P.Ex. M-3 (StaffReport, Health and Human Services Commission, 1998) at 115. More than one of defendants' witnesses testified that transportation problems are one of the most common
6~efendants offer a variety of transportation services through their contractors. The options include transportation by car, mass transit, bus service between cities, van, taxi, or airline. MTP will arrange transportation to Texas Health Steps checkups, immunizations, dental services and medical treatment for class members. P.Ex. T-6 at 3. Defendants also provide mileage reimbursement at a rate of28 cents per mile.~ 232.
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reasons that class members miss health care appointments.70 Plaintiffs' witnesses agreed.71 A
study prepared by Texas A&M University reports that 35% of class members who miss health
care appointments give transportation-related problems as the reason for their not having arrived
at the scheduled time. P.Ex. T-43 at 27 (Table 5.3).
Findings ofFact Regarding Violations ofDecree
Abundant evidence demonstrated the various problems with defendants' transportation
program, including evidence that class members often cannot gain access to the transportation
vouchers to which they are entitled, are not reimbursed until months after transportation
expenditures have been made, and often spend whole working days arranging and waiting for
transportation to and from brief appointments. Some class members, for example, are forced to
take one to two days off from work to accompany their children to medical appointments,
because the defendants' transportation schedules may require an overnight stay. The burden this creates on poor class members can be overwhelming.72
70 TR 380, lines 7-15 (Testimony ofMargaret Bruch). The court qualified Ms. Bruch, a program consultant for Texas Health Steps case management as an expert in "medical case management in the Texas Health Steps program and other programs administered by the Department ofHealth." There was no objection. TR 356, lines 11-6. See also TR 975, lines 1923 (Testimony ofBilly Millwee). Mr. Millwee is defendants' division director for the Texas Health Steps and Medical Transportation Programs. TR 872, lines 16-8. The court qualified him as an expert in "the field ofhealth care and ... the administration of the Texas Health Steps Program." There was no objection. TR 876, lines 7-11.
71TR 70, lines 13-7 (Testimony ofMs. Tillman); TR 254, line 17 (Testimony ofDr. Seale). 720ne of many of plaintiffs' examples concerned J.F., who, as the result of having suffered a closed-head injury, has left side neglect, disruptive behaviors, perseveration, leaning disabilities, vision problems, problems walking, problems swallowing, and problems with internal control and memory. P.Ex. A-7; TR 34, line 15 to 38, line 19. J.F. had received treatment at the Brown School in Austin, but in December of 1998, he returned home and needed daily therapy sessions at the West Texas Rehabilitation Center in Abilene. He lives about fifteen miles from Abilene, in
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Under paragraph 223, the first annual assessment of defendants' MTP was due in March of 1996. However, it was not completed by defendants until January of2000. Because it appears that defendants have not provided plaintiffs with the required annual assessments for the years 1996 through 1999, the court finds that defendants were in violation of paragraphs 223 through 229 of the decree during that entire three-year period. Because defendants completed their first assessment in January of this year, and their first formal transportation corrective action plan on February 25, 2000, it is found that defendants have come into partial compliance with these paragraphs as of the year 2000. However, it is noted that plaintiffs' counsel have not received a copy of the plan or had the opportunity to give their input, as required by the decree. ~ 229.
IV. Issue Four: Managed Care
The vast majority of the testimony produced at the hearing on plaintiffs' motion to enforce concerned defendants' increased implementation of managed care across the state. A short explanation of what is meant by "managed care" will aid this discussion.
Merkel. By March, W.P., his mother, still had not received reimbursement for trips made in December. After Ms. McHan's extensive intervention, W.P. finally received reimbursement in April for travel in December. In the meantime, his mother had to borrow money from multiple sources and quit her job to stay home to take care of her son's extreme needs. TR 38, lines 4-11 W.P. relayed that "[b]ecause of. . . delays, I maxed out my gas credit card. I had to borrow money from all of my friends to pay for trips to rehabilitation five days per week." P .Ex. A-7 at 7. In January of2000, after a six-month delay, W.P. finally received reimbursement for travel in June of 1999. TR 38, lines 13-19.
Additional evidence of the transportation difficulties faced by plaintiffs will not be recited, as such evidence is irrelevant to the question of whether or not defendants have complied with those decree provisions governing the creation of corrective action plans. As plaintiffs themselves concede, the decree does not set out standards for the transportation program itself, but merely sets out a process by which the parties, through the development of corrective action plans, must identify and implement improvements to be made to the program.
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A. Defendants' Managed Care Programs73
To implement managed care, defendants have used three main managed care "models":
capitated managed care, partially capitated managed care, and primary care case management. In
capitated fee models, managed care organizations ("MCOs") are paid flat fees by Medicaid to
provide services for their patients. TR 99, lines 18-22. The MCO assumes the risk of providing
services that are medically necessary. P.Ex. M-2 at 95. The model is based on the theory that
when organizations are paid a flat fee to serve their patients, they will provide cost-effective
preventive care in an effort to avoid the costs of expensive treatment of acute conditions. P .Ex.
-2 at 94. Partial capitation refers to the use of caps for some kinds of services within a single
health plan. In primary care case management models, individual health care providers are paid a
small monthly fee to arrange referrals and other needed services for patients, but providers are still
paid a fee for the services that they provide. Other combinations of these three approaches have
been used in some counties. Members of the plaintiff class are enrolled in each of these managed
care models.
73Defendants' most common managed care program is the "STAR" program. There are STAR managed care programs in the Travis, Southeast, Bexar, Tarrant, Lubbock, Dallas, Harris and El Paso regions. P.Ex. MC-57. The STAR program began in 1993 with two pilot projects, one in Travis County and the other in the Gulf Coast area in and around Galveston. In 1995, the Gulf Coast area expanded to include a few new counties. In 1996, Defendants added several counties to the Travis managed care project and started their managed care programs in the Bexar, Lubbock and Tarrant regions. The Harris region project began in 1997. P.Ex. M-2 at 93. Finally, Defendants began their Dallas and El Paso regional projects in 1999. P.Ex. MC-57. By December 1, 1999, Defendants had enrolled 346,388 Texas Medicaid recipients in managed care. D.Ex. D-62. Most managed care enrollees are class members. For example, in fiscal year 1997, 83% of Texas Medicaid recipients in managed care were under the age of20 years. P.Ex. M-2 at 104. In 1999, the Texas legislature declared a moratorium on the further expansion of managed care for class members and other Texas Medicaid recipients. Tex. Gov't Code, § 533.012; P.Ex. MC-57. However, a future continuation ofthe "roll-out" of managed care is considered likely by all parties.
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Each of the three types of managed care programs share several characteristics. First, each class member either chooses or is assigned to a primary care provider (PCP). The primary function of the PCP is to provide each class member with a "'medical home,' including comprehensive preventive and primary care on a 24 hour/7 day a week basis." P.Ex. -2 at 95. PCPs are also charged with approving other forms of care that class members may need. For example, without PCP approval, class members may not receive most forms of specialty care. P.Ex. -2 at 94, 97. In other words, PCPs are supposed to assist class members and coordinate their care, and also to function as gatekeepers who may limit the care that class members receive. TR 556, line 20 to 566, line 17. Second, managed care involves circumscribed networks of providers and therefore limits clients' choices of providers (with some exceptions) to those under contract with the managed care organization ("MCO") network. P .Ex. M-2 at 95. Third, managed care programs institute utilization review and management programs to monitor network providers. P.Ex. M-2 at 95.
Plaintiffs' complaints regarding defendants' managed care system may be grouped into four areas: 1) the receipt of services by class members enrolled in managed care, 2) the treatment of the children of migrant workers enrolled in managed care, 3) the training ofhealth care providers employed by the managed care system, and 4) the defendants' failure to obtain required data from managed care organizations. B. Findings of Fact: The Receipt of Services by Class Members Enrolled in Managed Care
Overview Plaintiffs seek to enforce the following decree provisions to ensure the receipt of services by class members enrolled in managed care programs:
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189. Regardless of their disagreements about the merits of managed care, the parties agree that managed care must be implemented in a manner that benefits EPSDT recipients and does not harm them. For this reason, the parties agree and the Court orders that: 190. EPSDT recipients served by managed care organizations are entitled to timely receipt of the full range ofEPSDT services, including but not limited to medical and dental checkups. 192. TDH will assure by various means that managed care organizations provide medical and dental checkups to newly enrolled recipients no later than 90 days after enrollment except when recipients knowingly and voluntarily decline or refuse services. Managed care organizations will also have the capacity to accelerate services to the children of migrant farmworkers to accommodate their special circumstances. TDH will also assure medical and dental checkups in a timely manner to all recipients.
As a preliminary matter, it is noted that paragraph 189, in which the parties agree "that
managed care must be implemented in a manner that benefits EPSDT recipients and does not
harm them," does not create any binding obligation on defendants. None of the federal law cited
by the parties indicates that the parties meant to refer to a statutory obligation of defendants to
the plaintiff class. Rather, paragraph 189 serves as an introduction to the set of obligations that
appear in the sentences that follow.
Nonetheless, much ofthe evidence produced at the hearing focused on the benefits and
disadvantages of the managed care approach to healthcare, in Texas and nationally. Defendants
emphasized that the principal objectives of managed care are to improve access to health care for
Medicaid clients, to enhance the quality of services, to provide a continuum of care and a medical
home, to reduce inappropriate utilization, and to enhance long-term cost effectiveness. D.Ex. D-
33, D-45, D-46. Plaintiffs countered with familiar arguments about the effects of cost-saving
incentives on the quality of and access to healthcare, emphasizing the harm resulting from class
members' inability to understand and navigate defendants' complex managed care system. 74
74For example, Ms. Tillman testified that it is very difficult for class members to get services since "[t]hey don't understand the managed Medicaid process." TR 70, line 23 to 71, line 2; TR 109, line 22 to 110, line 10; TR 111, lines 9-16; TR 116, line 7-11. Ms. Singleton also testified that the advent of managed care has made things worse by exacerbating class members' confusion and frustration in attempting to gain access to healthcare. TR 191, line 20 to 192, line
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Plaintiffs also emphasized the lack of"fit" between the realities faced by the EPSDT population and the theory behind the managed care model. The population's poverty makes it likely that they will need many visits, making capitated fee arrangements unprofitable for providers. Also, their relatively short enrollment period removes providers' incentives to provide effective preventive care to keep their patients healthy in the long run. See, e.g., Plaintiffs' Proposed Findings ofFact and Conclusions ofLaw at 130-33.
Both parties have provided numerous studies depicting varying degrees of satisfaction among providers and consumers in managed care. The breadth and difficulty ofthe public policy questions they have raised is apparent. While it forms the subject of much debate and discussion in the realm of public policy, the viability of managed care is not, and should not be, on trial in this proceeding. Whether or not to continue the rapid expansion of managed care is an issue for the legislature alone.
Relevant to plaintiffs' motion to enforce are the provisions that create binding obligations on defendants. The evidence at the hearing that demonstrated that class members enrolled in managed care do not receive the checkups to which they are entitled under the decree is presented below.
Inaccurate and Inflated Data First, plaintiffs' evidence demonstrates that defendants' data about checkups in the managed care system is inflated and inaccurate. Specifically, plaintiffs argue that defendants' managed care data, reported in defendants' "Annual EPSDT Participation Report" for fiscal year
2.
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1998,75 are inflated because they include "well child" visits that are not true Texas Health Steps
medical checkups. The so-called "well child" visit is considerably less comprehensive than the
Texas Health Steps checkup. "The Texas Health Steps checkup is much broader and more
involved ... [than] ... a well-child exam." TR 175, lines 6-11. (Testimony ofMs. Singleton).76
In reporting their managed care data, defendants used data that the Texas Health Quality Alliance
("THQA")77 had obtained from defendants' contractor managed care companies. TR 648, line 20
to 649, line 25. Per defendants' instructions, TR 650, lines 1-8, THQA included in the data two
forms of checkups received by class members in managed care: Texas Health Steps checkups and
"well child" checkups.
Defendants have not made clear to the court how many of the checkups counted in their
Annual EPSDT Participation Report were well child visits, as opposed to Texas Health Steps
medical checkups. However, in a "Medicaid Managed Care Report" written for the Texas
75D.Ex. D-42, D-43. 76Ms. Singleton has personally conducted about 20,000 Texas Health Steps checkups over the course ofher career. TR 175, lines 4-5. 77Defendants contract with the Texas Health Quality Alliance for independent reviews of the managed care companies' performance. Federal law requires external review. 42 U.S.C. § 1396u-2(c)(2); TR 591, lines 14-23; see also Decree~ 199; TR 541, lines 13-23. THQA uses several methods to evaluate Defendants' managed care programs. Their on-site review determines what structure and process is in place to meet the requirements of their contract. TR 594, lines 15-23. This study is an attempt to address all ofthe requirements ofthe contract by examining their written policy and procedures. TR 595, lines 3-8. THQA also surveys consumers and healthcare providers in defendants' managed care programs. TR 596, lines 16-23. Further, THQA tries to validate data reported by the managed care programs. TR 596. Although THQA had hoped to validate the programs' data by comparing them to actual medical records, often they have not been able to do so. TR 597, line 19 to 598, line 3. In those instances, THQA's validation efforts were limited to attempts to replicate the HMOs' reports using the HMOs' data. TR 596, line 24 to 598, line 3. Finally, THQA conducts focus studies, in which medical records are reviewed. TR 598, lines 7-17.
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Legislature for fiscal year 1998, defendants provide participation rate data for their Medicaid
managed care plans that includes only Texas Health Steps checkups, and does not include well
child visits. P .Ex. MC-5 at 35. These checkup participation rates varied from .24 in Harris
County to .39 in the Lubbock managed care region. The participation rates under the primary
care case management pilots were somewhat higher, but none exceeded .60. P.Ex. MC-5 at 35.
These low rates demonstrate the substantial inflationary effect caused by the inclusion ofwell
child visits in defendants' revised 1998 Annual EPSDT Participation Report, which reports
participation ratios in managed care ranged from .77 for children of ages 6-14 years, to .46 for
those aged fifteen to twenty years. D.Ex. D-42.
THQA Focus Studies
THQA studies reveal that class members have received a startlingly lower number of
checkups under managed care than defendants have reported. In addition, THQA Focus Studies78
find many fewer checkups in managed care than defendants report.79 Defendants' schedule
781n particular, plaintiffs rely on a 1999 THQA study which asked whether children, regardless ofhealth status, were receiving periodic screenings and checkups according to a periodicity schedule, whether they were receiving immunizations consistent with standards, and whether they were receiving blood lead screenings periodically. TR 652, lines 20-5. THQA did separate studies ofwell child care in defendants' Texas Health Network (the model ofprimary care case management) and defendants' contractor HMOs. The study sampled medical records about class members in each group to determine the rate of checkups, immunizations and blood tests for lead poisoning. The sample was limited to class members up to the age of 28 months who had been enrolled in Medicaid continuously for at least six months. P.Ex. MC-7 at 7; P.Ex. MC-8 at 55.
79It is noted that the data reported in the "Annual EPSDT Participation Report" is not directly comparable to the THQA data, because the THQA data is limited to class members who had been enrolled for at least 6 months. Also, the medical records used to compile the data included all records that the primary care provider had compiled in the class member's file. It is hoped and expected under common medical practice that the PCPs maintain complete records about the class members assigned to their care. However, the focus study reports that some PCPs
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entitles class members to nine Texas Health Steps medical checkups before they reach two years of age. P.Ex. M-4 at 2-5. However, fewer than 43% ofthe class members included in THQA's sample of the Texas Health Network data received one or two documented preventive visits in the first two years oflife, even if data for Texas Health Steps checkups and "well child" visits are combined. Only about 1% received three or four documented visits. P.Ex. MC-7 at 12. In stark contrast, defendants' "Annual EPSDT Participation Report" states that the participation rate for infants was .82 in fiscal year 1998. D.Ex. D-42. This participation rate purportedly measures the number of infants who received at least one medical checkup for the year. TR 446, lines 4-11. Obviously, the THQA report and defendants' data differ considerably. 80 Reviewing both sets of data and the evidence presented at the hearing related to the accuracy ofboth sets, it is found that plaintiffs' reliance on the THQA studies is not misplaced. It is also found that plaintiffs' explanations for these disparities - the inflationary effect of the assumptions used in calculating
may not have done so. P.Ex. MC-7 at 12-3; P.Ex. MC-8 at 66-7. The court takes these shortcomings in the comparability of these data sets into account, and concludes that this comparison is just one of many bits of evidence that demonstrate, by a preponderance of the evidence, that class members in managed care do not receive the timely checkups to which they are entitled.
8<>:Plaintiffs presented other dismal THQA findings, including the fact that no documentation of any checkups for over one-half of the class members in the Texas Health Network could be located. "[O]ver 50% of received records per [region] had no documentation of either Texas Health Steps/well child checkups, immunizations or lead screening." P.Ex. MC-7 at 12. This data is very troublesome because defendants' most recent report to the Texas Legislature notes that there has been an increase in the number of"complex" newborns within almost all of their managed care plans. The percent of complex newborns is higher among the population enrolled in defendants' managed care programs than in the fee-for-service population. P.Ex. MC-5 at 25, 32-3.
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the participation ratio and of the arbitrary inclusion of well child data in defendants' reports, along with the MCOs' inaccuracies in data collection and reporting -- are highly persuasive.81
Comparing Managed Care and Fee-for-service Systems
Third, plaintiffs have shown that class members enrolled in managed care receive fewer
checkups than those enrolled in the traditional fee-for-service plans.
Plaintiffs argue that, by design, many managed care healthcare systems include incentives
that motivate providers to limit healthcare visits. The results of this alleged incentive structure, they claim, may be seen in a comparison of managed care data with fee-for-service data. For example, in fiscal year 1997, defendants reported lower participation ratios for class members in managed care than for those in fee-for-service Medicaid, with the exception ofinfants. 82
Similarly, defendants' most recent data about medical checkup participation rates- the revised
"Annual Participation Report" for fiscal year 1998 that includes data from their managed care contractors - shows that with the exception of infants, class members in managed care have lower participation ratios than class members in fee-for-service plans.83 D.Ex. D-42. A recent internal
81Plaintiffs note, in addition, that had THQA been permitted to review medical records instead of administrative data to validate the medical checkups, the disparities between THQA' s findings and the data reported by defendants would likely have been even greater.
82 In some regions, the screening ratios for infants were better in managed care than in feefor-service, although this was only marginally true for all managed care regions combined. P.Ex. MC-22.
83This data shows that managed care enrollees receive fewer services even with the inflationary factors discussed at length above. Defendants stress the fact that the disparity among the fee-for-service and managed care participation ratios is not extreme; however, due to the problems with defendant's managed care data set, the court finds this argument unconvincing. A more accurate set of data would likely reveal greater disparities between the two subgroups. Defendants also compare the screening ratios for class members enrolled in managed care and those enrolled in fee-for-service plans. D.Ex. D-43. This exhibit shows screening ratios that are
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memorandum authored by defendants reports that "[t]he most recent FY'99 percentages for Texas Health Steps medical exams in the nine pilot Medicaid Managed Care counties ofRegion 1 remain significantly lower than percentages in these same counties prior to implementation of the pilot." P.Ex. M-20 ("Region 1 Highlights").
Incomplete Checkups Fourth, the "checkups" received by managed care plaintiffs are grossly inadequate and incomplete. As discussed above, the parties agree that some class members receive "well child" visits instead of checkups. These visits are less comprehensive than Texas Health Steps checkups, and do not substitute for the full checkups required by federal law, by decree paragraphs 190 and 192, and by defendants' own policies. It takes about one hour to complete an initial Texas Health Steps checkup and about forty-five minutes to complete subsequent checkups. TR 188, line 23 to 189, line 8 (Testimony of Ms. Singleton). It takes about twelve to twenty minutes to perform Texas Health Steps checkups for infants, while "older children [take] longer." TR 759, lines 17-20 (Testimony ofDr. Beverly Koops84). The evidence also revealed that twelve minutes would be "pretty quick" and that it
the same or higher for class members in managed care, when compared with class members in feefor-service. However, it was found above that this data is plagued by various inaccuracies likely to lead to inflationary biases. Therefore, the court is not convinced that class members in managed care are receiving the same number of screens and other services as those in fee-forservice plans. For example, defendants report that the screening ratio for infants in fee-for-service is .83 and for infants in managed care is .82. But, based on the studies conducted by THQA described above, it is found that defendants' .82 figure is inaccurate and highly unreliable.
84Dr. Koops is defendants' medical director for Healthcare Financing. TR 743, lines 14-5. She is a neonatologist. TR 745, lines 3-4.
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would be difficult to complete five Texas Health Steps checkups in under one hour. 85 TR 930, line 20 to 931, line 6 (Testimony ofMr. Millwee). However, Medicaid patients in managed care receive only "nine to ten minutes with a primary care provider actually seeing the patient." TR 114, lines 20-4 (Testimony ofMs. Tillman); see also P.Ex. MC-42, complaint of class member B.C. (dated August 25, 1999, documenting receipt of a ten-minute appointment), complaint of class member D.R (dated November 11, 1999, complaining of a one- to two-hour wait "every time" and of a five- to ten-minute doctor visit), complaint of class member J. S. (dated November 30, 1999, complaining of a two-hour wait, and only "about 2 minutes" with doctor).
Finally, THQA's studies demonstrate that class members in managed care receive less immunization and lead testing86 than they should.87 Specifically, THQA found that less than 17% of class members in the Texas Health Network were documented as having been fully immunized by the age of two. P.Ex. MC-7 at 12. The HMOs report that less than 50% of enrolled two-
85 Also, Ms. Tillman testified that it takes an additional30 to 45 minutes to explain managed care to class members. TR 116, lines 12 to 117, line 1.
8~efendants agree that class members' healthcare visits only "count" as Texas Health Steps checkups if all elements ofthe checkup are completed. P.Ex. - 5 at 39-3. In addition, Congress has recognized the importance of immunizations and blood tests for lead poisoning by requiring that they be mandatory checkup elements. 42 U.S.C §§1396d(r)(1)(B)(iii) (immunizations); 1396d(r)(1)(B)(iv)(blood tests for lead poisoning).
87Plaintiffs also introduced evidence of other elements that checkups within the managed care system may be lacking. P.Ex. CH-24, complaint of class member L.G. (dated July 29, 1998, Texas Health Steps checkup not done adequately, shots not given), complaint of class member L.S. (dated July 31, 1998, doctor refused to do thorough checkup, burden on mother to find specialty care, child later diagnosed with cystic fibrosis), complaint of class member J.H. (dated August 12, 1998, doctor refused to give immunizations, saying he would not get paid), complaint of class member A.M. (dated August 12, 1998, child's head not examined during checkup, later diagnosed with brain tumor).
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year-olds are fully immunized. P.Ex. MC-8 at 65. 88 The THQA study also showed that class members, who are entitled to blood tests for lead poisoning at twelve months and again at twentyfour months, were in large part not receiving this vital service. P.Ex. M-4 at 2-5, 2-21.89 Only 15.5% of the sampled medical records of the class members enrolled in the Texas Health Network
confirmed the receipt of even one blood test for lead poisoning during the first twenty-eight
months oflife. P.Ex. MC-7 at 12. Less than 2% of class members had medical records that
showed two or more tests, as is required for children aged two years. P.Ex. MC-7 at 12. The lead test reports are also unfavorable for those class members enrolled in HMOs. Less than 30%
of enrolled class members received a blood test for lead poisoning by the age of two, and only about 9% had received two or more tests. P.Ex. MC-8 at 65.90
Problems with the Medical Home and Primary Care Provider Models
Fifth, class members' timely receipt of full EPSDT services is impeded by the failure of the
"medical home model," in which a single primary care provider (PCP) acts as gatekeeper. Defendants claim that their managed care programs improve healthcare for class members through
88Furthermore, in 1998, defendants reported to the Texas Legislature that only 22% of24month-old class members in managed care were fully immunized. P.Ex. MC-23 at 11-25.
89_oefendants admit that "childhood lead poisoning is one of the most common and preventable pediatric health problems in the United States today," P.Ex. OM-9, "Texas Health Steps Program Outcome Measures, Percent of Children with Blood Lead Levels Greater Than or Equal to 15 ug/dL by Race/Ethnicity." Moreover, poverty is associated with an increased risk of lead poisoning. P .Ex. CH-I at 2.
900ther evidence indicates that defendants include checkups that are incomplete with regard to lead screening in their managed care data. Dr. Ron Jemelka, THQA's research director, testified that in their 1997 report, THQA reviewed a small sample of managed care medical records. TR 605, line 1 to 606, line 20; P.Ex. MC- 1, "Focus Studies State Summary" at 19. THQA found that the managed care companies had reported more lead screening questionnaires than the medical records reflected. Id
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the application of the dual concepts of the "medical home" and the "primary care provider," or
"PCP."91 Plaintiffs counter that these concepts fail plaintiffs in their application, and prevent the
timely receipt ofEPSDT services by class members enrolled in managed care plans.92 Plaintiffs'
criticisms of the PCP/medical home model are two-fold: first, that class members often have
neither a medical home nor any knowledge of their PCP, and second, that PCPs often refuse to
treat class members, forcing them to seek care in local emergency rooms.
The PCP
When some class members arrive at various healthcare clinics, they do not know the name
oftheir PCPs. TR 193, line 23 to 194, line 2 (Testimony ofMs. Singleton). The confusion
caused by the difficulty in identifying class members' PCPs leads to delays in the receipt of needed
care.93 One witness relayed that
91For example, Dr. Koops testified that PCPs are a strength of defendants' managed care system. She stated that class members in managed care enjoy having their own personal physician, which they had not had before managed care came into being for the Medicaid population. TR 755, line 11 to 756, line 3; see also TR 709, lines 10-2.
92For example, Ms. Singleton testified about class members whose care was delayed because of the structure of managed care. According to her testimony, defendants' implementation of managed care programs has worsened class members' access to care. TR 191, lines 20-23. Ms. Singleton and her staff have communicated the perceived problems with managed care to defendants "on a regular basis." They have talked with defendants' local staff, defendants' staff in Austin and staff of the HMOs. They have even "brought it to the governor's office attention that children were not getting the care that they needed." TR 203, lines 14-22. But, according to Ms. Singleton, "[t]here has not been a lot of progress made" toward the resolution of the problems she has observed. TR 203, lines 23-25.
93See P .Ex. MC-42, complaint of class member M.R. (dated February 2, 1999, claiming that although PCP had been changed two months earlier, doctor still refused to see child until Medicaid ID form had been corrected), complaint of class member R.L. (dated March 30, 1999, claiming that due to PCP change, mother could not find out from managed care plan where she could take her child for a Texas Health Steps checkup), complaint of class member V.H. (dated July 7, 1999, stating that members of doctor's staff called NHIC at time of child's appointment,
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many families have trouble getting primary care for their children who have Medicaid. Lots of families find out their children's Primary Care Provider has been changed without their knowledge or permission. Then, sometimes they can't get care from the Primary Care Provider assigned to them. Sometimes, their children get assigned to providers who don't see patients their age at all; these providers just refuse to see them or they send them to us even though we're not the Primary Care Provider. Both Maximus and the liMOs told us these problems would get better after managed care had been here for a while, but they have not gotten better.
P.Ex. A-8 at 7 (Deposition ofMs. Skaggs).
Based on this evidence, it is found that the PCP model is currently functioning as a barrier
to the timely receipt of care for many class members. The following section demonstrates that the
problem is not merely administrative.
Crowded Clinics and Emergency Rooms
One clinical provider testified that class members visit clinics even though their PCPs
practice elsewhere. According to her testimony, "[W]hen they come to us, ... they have called
their primary care provider and they can't get in to see them for an extended period of time." TR
195, lines 3-5 (Testimony ofMs. Singleton).94 Clinics are not the only places where class
and were told that another doctor was child's PCP), complaint of class member C.R. (dated July 7, 1999, reporting that defendants' representative incorrectly told doctor that he was not PCP when child arrived for appointment).
94See also P.Ex. MC-42, complaint of class member M.O. (dated April23, 1999, claiming that PCP refused to see member because member was under the age of 12), complaint of class member J.A. (dated June 29, 1999, in which PCP refused to see child because of outstanding bills for others in the family), complaint of class member R.V. (dated July 12, 1999, stating that doctor covering for PCP while PCP was out of town refused to see child), complaint of class member K.W. (dated August 24, 1999, stating that despite child's being sick for a week, PCP would not schedule appointment), complaint of class member E.M. (dated September 3, 1999, alleging that PCP refused to see "very sick" child because mother did not speak English), complaint of class member C.R. (dated October 13, 1999, stating that PCP refused to see child with "bad eye infection" and "bleeding eyes" because of "lack of ID card.")
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members seek care when the doors to their "medical homes" are locked. It was hoped that managed care would force class members to receive services outside of emergency rooms. TR 752, line 2-6; TR 755, lines 9-19. However, class members enrolled in managed care often seek care in the ER. The Tarrant Regional Advisory Committee on Managed Care has reported ongoing problems with class members who arrive in the emergency room without ever having seen their PCPs. P.Ex. MC-48. Also reported were problems with PCPs who, "despite having received monthly cap payments, do not feel that they should be required to see that client on an urgent care basis." !d. 95
In October of 1999, the Tarrant committee discussed the problems that occur when the "PCP incorrectly perceives [the] ERas a quicker way to obtain specialist evaluation for stable children." P.Ex. MC-49. They noted the following:
What many PCPs do not realize, however, is that this does not result in a quicker appointment with [a] specialist unless the child is acute when he appears in the ER. ... [T]hese referrals are partly a result of the cumbersome referral process under Managed Care.... [T]he PCP sends the client to the ER out of frustration with the system.
P.Ex. MC-50. The committee discussed problems that arise when the "PCP perceives the ERas a place to send children who are sick when his own office is overloaded - a result of a lack of Medicaid providers." P.Ex. MC-49. The committee also noted the shortage of specialists in the Tarrant region. "There is a lack of access to outpatient mental healthcare. There are not enough
95See also P.Ex. MC-50; P.Ex. MC-42, complaint of class member K.C. (dated January 22, 1999, reporting that a "child having seizures" was refused by provider unless health plan immediately changed), complaint of class member M.R. G. (dated February 4, 1999, complaint that, for the second time, PCP refused to see "very sick" child), complaint of class member C.G. (dated November 11, 1999, complaint that PCP not available to see child who was vomiting and having problems breathing).
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providers for behavioral health and mental health, and the impact is that the members go to the emergency room."96 P.Ex. MC-51 at 2-3.
Access to Specialists Sixth, defendants' managed care programs impede class members' access to specialists. HMO provider referral handbooks are often inaccurate, since many specialists listed in the HM:Os' referral books are not taking Medicaid patients.97 Class members face remarkable difficulties in finding specialists who will accept EPSDT enrollees in managed care plans. For example, Agape Clinics has reported "major problems" finding specialists to take care of class members. 98 Part of the problem appears to lie with the HMOs' internal approval processes. For example, Ms. Singleton described a 17-month-old who was assigned Agape Clinics as his newlydesignated PCP. He had recurrent ear infections. "[B]etween the time ... he was three weeks old, which is real early to start ear infections, and when he came in to see us, he had been on regimes of antibiotics ... 17 [times] before we saw him." TR 202, lines 1-6. After Agape staff treated the boy three more times without success, they asked the HMO for approval to send him to an ear, nose and throat specialist. The boy was not referred because he had not met the
96The impact of managed care on plaintiffs' access to mental healthcare services is discussed in more detail below.
97TR 203, lines 8-10 (Testimony ofMs. Singleton). Ms. Singleton testified that "[v]ery, very many of [the listed HMOs] are not [taking new Medicaid patients]. They are not participating in the program." TR 200, lines 7-14.
98Ms. Singleton told the story of one patient who broke his arm at school. According to Ms. Singleton, "it took us just under eight weeks to get him into an orthopedist specialist for treatment. . . . [T]here was difficulty in getting an appropriate referral through the managed care system to get him in for treatment." TR 199, lines 7-13. During the 8 weeks while he was waiting for treatment, the class member was in a sling and on restricted activity. TR 199, lines 10-11. When he eventually received orthopedic care, he needed a pin and surgery. TR 199, lines 14-16.
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requirements of the HMO that Agape, as the primary care provider, must have treated him six
times within six months.99 TR 202, lines 7-12.100
Access to Pediatric Care and Mental Health Services
Seventh, defendants' managed care system impedes class members' receipt of pediatric
care and mental health services.
The Dallas regional advisory committee on managed care noted in May of 1999, that there
were only fifty-three pediatric providers in the entire Dallas managed care area. It also reported a
"pediatrician shortage" in which "[t]here are 6 counties which have either 1 or 0 pediatricians."
MC-52 at 5-6. This shortage was reported to have persisted as late as October of 1999. P.Ex.
MC-53 at 9. Some pediatricians do not enroll in defendants' managed care programs because the
"rates are too low, the hassle factor is high, and they are afraid the dam would open up," and they
would be swamped with Medicaid patients. ld
99See also P.Ex. MC-42, complaint of class member V.H. (dated December 1, 1998, claiming that despite growing "knot" on child's neck discovered during September Texas Health Steps checkup, child was still waiting for promised referral to specialist), complaint of class member K.C. (dated December 7, 1998, claiming that emergency room merely splinted child's arm due to lack of pediatric orthopedist in network), complaint of class member S.N. (dated January 15, 1999, claiming that HMO denied referrals for child with rare disease because relevant needed specialist "does not accept PCA."), complaint of class member P.H. (dated March 10, 1999, reporting experience of family trying for three weeks to get a referral to a neurologist), complaint of class member B.B.S. (dated June 29, 1999, reporting that although doctor's office reported baby's need for cardiologist, HMO refused out of network request and had "no pediatric cardiologists in network"). The Harris regional advisory committee on managed care has also expressed concerns with the authorization process for follow up appointments with specialists, noting that since the referral process differs among the HMOs, it can lead to confusion. P.Ex. MC-46
100The recurring themes ofMs. Singleton's testimony were confirmed by Ms. Skaggs, who spoke also of an additional problem: the billing of class members for services that EPSDT should have covered. P.Ex. A-8 (Deposition ofDeborah Skaggs). See also P.Ex. MC-42.
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Defendants' system of managed care is also impeding class members' access to mental healthcare. One physician and member of the Tarrant regional advisory committee on managed care commented:
[T]hey are losing services that were available three years ago; there are fewer hospital beds for children and adolescents.... [M]ental health is the least served area. If there is high demand, then the providers can select their patients. They're going to select patients where they will get reimbursed appropriately. Taking a system that is weak to start with in its reimbursement and making it more difficult to administer, places further demands on those providers. They are going to drop out of the system. P.Ex. MC-51 at 6; see also P.Ex. MC-53 at 10.101
THQA Provider and Consumer Surveys Eighth, plaintiffs present THQA studies that purport to demonstrate that providers themselves view defendants' implementation of managed care as having a detrimental effect on plaintiffs' receipt of timely care. THQA surveys reveal that more healthcare providers are dissatisfied than satisfied with the impact of defendants' managed care program on class members' access to care and continuity of care. P.Ex. MC-11 at 7. Surveys do show that physicians' satisfaction with Medicaid managed care increases the longer they are in the program.102 However, this increase could be the product of many other variables besides physicians' increased satisfaction with class members' access to care. The survey results could indicate that physicians who are dissatisfied with defendants' managed care program simply drop out. The most that can
101The Dallas committee also discussed problems with access to mental healthcare for class members, noting concerns about "the adequacy of the mental health network for children, especially children with complex needs...." P.Ex. MC-54 at 12.
102TR 723, lines 1-4. (Testimony of Susan Milam, Chief of the Bureau of Managed Care). 79

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be said, given the data presented, is that the majority of providers currently believe that defendants' implementation of managed care has had an adverse impact on class members' access to services.
Plaintiffs also rely on THQA' s 1999 survey of consumers, which shows that many class members experience difficulty receiving necessary healthcare from defendants' managed care programs. For example, 32% of respondents said that they had problems "getting the care" they needed from defendants' STAR HMOs. Similarly, 27% of those enrolled in the Texas Health Network said that they had problems. Of those enrolled in STAR HMOs, 18% said they had "big problems" getting care; in the Texas Health Network, 16% reported "big problems." P.Ex. MC-9 at 11. However, it is not entirely clear what conclusions may be drawn from this particular study. A simple rephrasing of its findings reveals that 85% ofMedicaid patients in managed care have no problems or only "small problems" getting care that they need from the managed care companies. TR 543, lines 19-21; TR 706, lines 1-13; D.Ex. 35.
THQA also asked consumers how often they received care without long waits. More than 50% of STAR HMO respondents reported long waits before they could receive care. Fully 26% responded that they "sometimes or never" got care without long waits. In the Texas Health Network, 49% reported waits for care; 24% reported that they "sometimes or never'' received care without long waits.103 P.Ex. MC-9 at 12. Once again, rephrasing the findings, the study
103Plaintiffs argue that defendants' managed care contractors themselves contribute to these delays. For example, THQA's 1999 study found that managed care companies' staff are improperly educated about which services they are required to cover for class members. THQA found that managed care member services staff gave incorrect answers when THQA surrogate callers asked for information about how to receive services that they needed. See, e.g., P.Ex. MC14 at 50, 57; TR 601, lines 8-10. When managed care member services staff give out incorrect information, argue plaintiffs, they function as a barrier that impedes class members' access to the
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demonstrates that 71% of respondents received care without long waits. One witness opined that these results are "excellent." TR 707, lines 13-23; D.Ex. D-40 (Testimony ofMs. Milam). Thus, neither the THQA provider surveys nor the survey of consumers are particularly helpful with regard to the issue of whether managed care class members receive timely checkups without problems. It is found that the data is susceptible to varying interpretations.
Self-Reporting by Class Members Ninth, the accounts of three individual class members who were directly, adversely impacted by the structure of managed care poignantly illustrate the predicament of class members who are denied the timely receipt of services to which they are entitled under the decree. These accounts form the final category of evidence on which the court bases its finding that defendants have failed to provide class members enrolled in managed care with the checkups and other services to which they are entitled. B.M and Samantha Class member Samantha has "developmental delays, cerebral palsy which manifests itself in gross and fine motor skills problems and speech problems, learning disabilities (predominantly non-verbal), severe Attention Deficit Hyperactivity Disorder, asthma and airborne allergies, chronic ear infections, and pituitary dwarfism." P.Ex. A-5 at 5. B.M., her mother, explained that she has had problems obtaining all of the care that Samantha needs:
full range of services that federal Medicaid law guarantees to them. The same is true for managed care members services staffs responses to THQA surrogate callers' calls about medical emergencies. For example, staff at one HMO told a caller conducting an emergency scenario that the mother would need to call back with an ID number and details of symptoms. Defendants' obligations to provide training to managed care providers are discussed below, in Section VI(E).
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Now Samantha is in a Medicaid HMO. It is hard to get medical appointments for her in a timely way. Sometimes when she is sick, the doctor's office tells me that all the appointments are full and she can't get one for approximately two weeks. When this happens, we can't go to another doctor. Also, the HMO representative told me that if I take Samantha to the emergency room, it had better be a true lifethreatening emergency. She said if it's not, I have to pay the bill. That is very scary. I don't know when her problems can wait and when they can't, especially when it takes so long to get an appointment. P.Ex. A-5 at 7. B.M. also has trouble obtaining specialty care for Samantha. Her HMO only contracts with one orthopedist who is qualified to handle Samantha's problems. However, B.M. sought the help of a second doctor. She "looked and looked but there was no one else. The HMO people would not even answer my questions about trying to find another orthopedist." P.Ex. A-5 at 7. Furthermore, problems with prior approval of Samantha's physical and speech therapy have "caused delays in Samantha getting the therapy she needs," P.Ex. A-5 at 7, and there is a shortage of physical therapists in Samantha's HMO. Her mother reported, "I called and called and called before I could find a physical therapy agency signed up with my HMO. Most physical therapy agencies told me Medicaid paid too little to be worth it." P.Ex. A-5 at 7-8. C.H. and Sons C.H. characterizes her experiences with Americaid, one of defendant's managed care contractors, as a "nightmare." P.Ex. A-1 at 6 (supplemental deposition). C.H. is the mother of three young class members: Jonathon, who has manic depression, oppositional defiant disorder and attention deficit disorder; James, who has mild mental retardation, asthma, oppositional defiant disorder and affective disorder, and is sometimes violent; and Jacob, who suffers from serious kidney disease and asthma. C.H. has encountered significant difficulty in obtaining healthcare for James and Jacob. First, the psychiatrist who had been treating James "dropped all his Medicaid patients." P.Ex. A-1
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at 6 (supplemental deposition). Americaid initially told C.H. that she did not need a referral code to take James to a new psychiatrist. Americaid later refused to pay for his care because C.H. "did not follow procedure about getting a referral code." P.Ex. A-1 at 6 (supplemental deposition).
On one occasion, C.H. took James and Jacob in for emergency care because they both were suffering from fevers and diarrhea. "They kept vomiting and they were both getting dehydrated. I was very scared because they are so young and Jacob just had no weight to losehe has so many other health problems." P.Ex. A-1 at 6. The hospital refused to see the boys without a referral code from their HMO or payment from C.H. P.Ex. A-1 at 6-7.104 "We then went . . . to another emergency room where I was scolded for not getting the children to medical attention sooner. They said each of the children had lost several pounds, and it was dangerous to let this happen. They had to give Jacob intravenous fluids." P.Ex. A-1 at 7.
Shortly before C.H. gave her deposition in March of 2000, James suffered a serious and prolonged asthma attack. C.H. called the doctor's office repeatedly from about 2:00p.m. Saturday until 3:00 a.m. Sunday morning, finally reaching a nurse who instructed her to take him to the nearest emergency room. There, it was determined that James' situation was critical. Says C.H.:
I feel terrified and helpless when my child is in such bad shape and I have no way to do anything about it. I absolutely couldn't go to another doctor when that one didn't call me back, because we are in a Medicaid HMO. I was in fear of being turned away if I took him to the emergency room without a referral code. . . . The worst thing is I expect it to happen again; my children are still in a Medicaid HMO and they still have chronic illnesses.
104According to one emergency room doctor addressing the Tarrant regional advisory committee, "managed care recommends" that ER staff "refuse to see" some Medicaid patients who seek care there. P.Ex. MC-50.
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P.Ex. A-1 at 7. C.H. has also experienced difficulty obtaining a psychological evaluation for Jacob. "[W]e
are trying to get some help but it is really hard to find someone to do it because he is in a Medicaid HMO." P.Ex. A-1 at 8. By the time that C.H. had found someone to perform Jacob's psychological evaluation, she had changed the boys' PCP. To C.H.'s surprise, she learned that James and Jacob's HMOs had also been changed, and that their former doctors would no longer accept them as patients. P.Ex. A-1 at 8. C.H. expects further delays because of the amount of time it takes to change Medicaid managed care plans. P.Ex. A-1 at 8. See also TR 192, lines 18-
25.
C.O.
Plaintiffs also report a serious problem with delays in providing necessary medical equipment in their managed care programs in Harris County. Class member C.O. is a junior high school student with serious disabilities because of cerebral palsy. He was enrolled with HMO Blue in Defendants' STAR Plus managed care program for people with disabilities. P.Ex. C-21.
When C.O. outgrew his wheelchair, he encountered difficulty in trying to get HMO Blue to
replace it. According to C.O.'s school therapist, the chair is desperately needed to promote independence ofC.O. and to help him get from classroom to classroom. This is his last year in Junior High, and the High School is much more difficult to maneuver. This is also a safety issue. [C.O.] has no trunk control and he doesn't have protective responses, so ifhe falls he has no way of breaking the fall or protecting himself. . . . At the present time parents are propping chair up with wooden blocks - which is also not safe - he recently fell from his chair at home due to imbalance of chair and the physical reasons stated above. His current chair is three years old - his knees protrude and he has to have extra seat belts. This is particularly difficult for transport. The school bus driver has to double strap him to chair, and has difficulty moving him on and off the school bus.
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P.Ex. C-21. It took more than a year for C.O. to get a replacement wheelchair. P.Ex. C-21 (internal
TDH e-mail dated January 13, 1999). Among the causes ofC.O.'s untimely receipt of care listed by defendants in the internal memo were the fact that C. 0 .' s mother did not speak English and the fact that HM:O Blue's policies concerning wheelchairs were stricter than other Medicaid HMOs. !d. Under 42 U.S. C. §1396(d)(r)(5), however, C.O. was entitled to receive the full range of services that he needed, including a wheelchair.
Unfortunately, C.O.'s troubles are not unusual. THQA's 1999 STAR Plus consumer satisfaction survey shows that, on average, 43% of respondents report problems obtaining special medical equipment, and 27% of respondents report having had "a big problem" in obtaining special medical equipment. HMO Blue had the worst record of defendants' contractors, with one-half of respondent enrollees reporting problems and one-third reporting "big" problems receiving medical equipment. P.Ex. MC-9 at 35. C. Violations of Decree: Receipt of Services by Class Members Enrolled in Managed Care
In light ofthe data presented to this court and set out in Section IV(B), it is found that defendants have violated paragraphs 190 and 192 by failing to provide timely checkups to class members enrolled in managed care. 105 While the court applauds defendants' efforts to encourage
105More specifically, the court finds that defendants have are in violation ofparagraph 190 for the failure to provide the "timely receipt of the full range ofEPSDT services, including but not limited to medical and dental check ups," and of paragraph 192 for failing to "assure medical and dental checkups in a timely manner to all [managed care] recipients." Because no evidence was presented indicating that defendants are in violation of the requirement that they ensure the provision of checkups to new managed care enrollees within 90 days after enrollment, the court makes no finding with regard to that portion of paragraph 192.
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the managed care organizations to take steps toward reaching the goals of the decree,106 and while
it is hoped that such new initiatives will be met with success, these efforts do not excuse
defendants' current noncompliance.
D. Children of Migrant Farmworker Families
The Problem
In drafting the decree, the parties took special care to identify certain subsets of the class
that have historically been denied adequate healthcare. Paragraph 192, which states that
"[m]anaged care organizations will also have the capacity to accelerate services to the children of
migrant farmworkers," is an example of the parties' early identification of a group that might be
adversely affected by the installment of a managed care system. All parties agree that the
acceleration, or speedy delivery, of services to this group of class members is crucial to their
receiving adequate care, given their frequent migration and high rates of illness. 107
106Defendants point to a provision in the "1999 Contract for Services between TDH and HMO," D.Ex. D-45, as evidence oftheir good-faith efforts to comply with paragraphs 190 and 192 ofthe decree. However, paragraphs 190 and 192 unequivocally mandate that class members enrolled in managed care receive the full range ofEPSDT services to which they are entitled, and paragraph 300 makes clear that the ultimate responsibility for fulfilling the duties under paragraphs 190 and 192 lies with defendants:
300. Defendants may contract with individuals and entities to provide EPSDT services. But, Defendants remain ultimately responsible for the administration of the EPSDT program in Texas and compliance with federal EPSDT law.
It is noted that a 1998 THQA report found that one-half of defendants' managed care contractors did not substantially meet the requirement that they have systems in place to ensure the delivery ofTHSteps services. TR 611, lines 8-14; P.Ex. MC-2, MCO On-Site Survey, State Summary at 6. In addition, evidence was presented that indicated that defendants had found one MCO, Community Health Choice, in violation of the contract in the year 1997; sanctions, however, were delayed until the year 2000. P.Ex. MC-43.
107Migrant farmworker families are typically found in four ofTDH's regions: Regions 1, (Panhandle), 8 (San Antonio and Wintergarden areas), 9/10 (El Paso) and 11 (South Texas). Class members are enrolled in managed care programs in three ofthese areas: Regions 1, 8 and
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Class members whose parents are migrant farmworkers face many health problems,
including serious dental problems and lack of dental care, lice, lack of immunizations,
dehydration, pesticide exposure, agricultural accident-related injury, nutritional problems such as
anemia and lead poisoning, and health problems commonly associated with severely substandard
housing. P.Ex. A-4 (Testimony ofNancy Lloyd). 108
It can be very difficult for class members whose parents are migrant farmworkers to
receive the healthcare that they need, since farmworkers' children often need to be transported to
doctors or dentists whose offices are an hour or more away. There are hosts of local doctors and
dentists in close proximity who do not accept Medicaid clients. P.Ex. A-4. Educating parents
about their children's' needs is also crucial. For example, Ms. Lloyd arranged appropriate
physical and occupational therapy for a two-year-old class member who had cerebral palsy. Prior
9/10. TR 955, line 13 to 956, line 24. 108Ms. Lloyd is the health specialist for the Texas Migrant Council (TMC) of the
Panhandle region. TMC's Head Start programs provide educational and health services to students, including daily breakfast, lunch and snacks. TMC serves a large area in the Texas Panhandle. Its Head Start centers are located in Lubbock, Hale, Pecos, Deaf Smith, Reeves, Floyd and Bailey Counties. P.Ex. A-4 at 5-6. During the summer season, the centers serve about 450 children. P.Ex. A-4 at 7. The students are children up to five years of age whose families are mobile migrants who have moved interstate or intrastate within the last year to engage in agricultural employment. P.Ex. A-4 at 5. About 80% ofTMC's students are on Medicaid. Most of their older siblings are also on Medicaid. P.Ex. A-4 at 7. As the health specialist, Ms. Lloyd is responsible for helping TMC's students to receive medical and dental checkups and needed treatment.
At the December 1995 hearing in this case, then-EPSDT Program director Ernie Schmid testified that migrant farmworkers are "perhaps the most underserved population in the world." P.Ex. M-1 at 136. According to then-Defendant Commissioner ofHealth David Smith, M.D., problems that characterize the children of migrant farmworkers include acute respiratory disease, parasites and intestinal diseases, skin problems, and malnutrition. P.Ex. B-15 at 156-60. Gloriana Lopez, D.D.S., defendants' then-Dental Director stated that "the migrant population seems to have a higher degree of dental disease . . . the amount of decay is more and the amount of untreated decay is more...." P.Ex. B-11 at 49.
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to this arrangement, the child had been receiving only two sessions per month even though he
needed three sessions per week. Before Ms. Lloyd's intervention, the child
was losing muscle mass .... he couldn't even hold his head up but after two weeks of therapy he could. Also, you're fighting a time clock here. If children don't learn to walk by the time they're three years old, they probably never will... . If someone had been following this child, this never would have happened. He had been getting two visits per month for a year before he came to our center. He had Medicaid during this whole time. I want to know why no one helped him to get the full therapy that he needed.
P.Ex. A-4 at 13-14. He also did not have a standing frame so that he could strengthen his
muscles to learn to walk. "The mother wanted help but she didn't know what options were
available or what her child needed. This was one of the saddest cases I've seen." !d.
Ms. Lloyd testified that this subgroup's pattern of migration made obtaining care through
EPSDT managed care extremely difficult:
The HMOs would tell the parents that they would register the children with the [primary care providers], but they never would do it. So, the children would never get a local PCP while they were in our area. They'd be stuck with their PCP from wherever they were before, which would do them no good while they were here, or else they wouldn't have one at all. Without a PCP, they were locked out of the system, because the PCPs have to provide or approve all of the care. A lot of times, the HMOs would register the children with a PCP just as the family was moving on to a new job out of our area, or after the family had left. . . . This happened a lot.
P.Ex. A-4 at 19.109 Defendants' Chief of the Bureau ofManaged Care, Susan Milam, agreed that
it is important to accelerate services for class members whose parents are migrant farmworkers:
1~s. Lloyd illustrated this phenomenon with the example of a young migrant farmworker class member in Dallas in need of plastic surgery because her outer ear was deformed and she had no ear canal. "We could never get this organized before they left. There was no one to help us to make the complex arrangements, including the managed care organizations, [who] were no help at all." P.Ex. A-4 at 13.
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[T]hey oftentimes will not reside in a particular area for a long period of time, if you are concerned about a child getting the necessary immunizations or series of checkups that they need, that by the time they become eligible, get enrolled, et cetera, that they may only have a chance to have maybe one or two services rendered to them before they move to another location. . . . TR 732, lines 12-21.
Findings ofFact Regarding Violations ofDecree Despite the increased health risks faced by class members whose parents are migrant farmworkers, much evidence suggests that defendants have not adequately ensured that their managed care contractors make efforts to accommodate them. The managed care companies in the counties ofLubbock, Crosby, Floyd, Hale, Lamb and Lynn counties lack the capacity to accelerate services for migrant farmworker class members. P.Ex. A-4 at 15-16. According to Ms. Lloyd, the managed care companies "don't do anything to accelerate services for our children.... [or] ... for other children of migrant farmworkers ... who have Medicaid." P.Ex. A-4 at 16. Ms. Lloyd reported that she has tried several times with no success to help the managed care companies accelerate services to TMC students and their siblings. She first asked the managed care companies to be part ofTMC's Health Services Advisory Committee. "They said they would but then they never showed up for any meetings." P.Ex. A-4 at 16. She then asked them to make presentations to TMC parent groups to "give the families a chance to learn about what the managed care programs do and how they work," but they have not yet agreed to do so. P.Ex. A-4 at 16. In short, there seems to be no evidence that defendants' Panhandle area managed care companies make any efforts to accelerate services to class members whose parents are migrant farmworkers:
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If they do, they have never explained them to me or my staff If they truly wanted to speed things up for migrant farmworkers' children, you'd think they'd want us to understand how their programs work, and you'd think they'd want to cooperate with us. We're one ofthe largest programs for the children of migrant farmworkers in this area, and almost all of our students have Medicaid.
P.Ex. A-4 at 16. (Testimony ofMs. Lloyd).
The problem is statewide. In 1998, ten of the thirteen managed care plans were not in
substantial compliance with the requirements relating to the acceleration of services to migrant
populations. P.Ex. MC-2, 1998 THQA "MCO On-Site Survey," at 3. Most plans had difficulty
identifying migrants since they were not identified on the plans' enrollment tapes. ld Apparently,
only three of the thirteen managed care companies with whom the state contracts use assessment
tools that specifically identify migrant farmworkers. P.Ex. MC-41. These findings in the THQA
report were corroborated by comments made by several of defendants' managed care contractors about their abilities to accelerate services for children of migrant farmworkers. 110 TR 607, line 21

110These contractors commented:

•

"We really need TDH or DHS to assist the MCO's identifying migrant workers...." (CHC)

•

"With regards to the screening of migrant workers on the HMO Blue Medicaid health

plan, we currently do not do anything extraordinary that we would [not] do for any other

member." (HMO Blue)

•

"The difficulty in assuring acceleration of services results from inability to identify these

Members upon enrollment." (MethodistCare)

•

" ... this information is not asked at the time the client qualifying for Medicaid eligibility

w/DHS." (MSCH ACCESS)

•

"We will cooperate, and coordinate with TDH to develop strategies and perform outreach

to secure prompt delivery of service to the migrant population as soon as they are

identified." (Parkland)

•

"... it was the understanding ... that [food stamps] was the only state program that

maintained this information." (PCA)

•

"At this time, Seton Health Plan does not have a policy & procedure addressing

identification of migrant farm workers specifically." (Seton)

•

"The state does not give migrant populations a separate membership risk group nor are

they identified in any way on the enrollment file." (AmeriHealth)

•

"The MCOs are unable to identify these members without assistance from the enrollment

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to 608, line 21. Defense witness Ms. Milam testified that the managed care companies have a
great deal oftrouble identifYing class members whose parents are migrant farmworkers. 111 TR
734, lines 12-15.
Defendants point out that the Medicaid managed care plans do have the "capacity" to
accelerate services to class members "when these members are identified."112 However, the
evidence clearly demonstrates that the process of identification is severely flawed, if not
completely nonfunctional. Paragraph 192 states unequivocally that the managed care
organizations "will . . . have the capacity to accelerate services to the children of migrant
farmworkers." It is held that a managed care organization that fails to identifY class members
whose parents are migrant workers does not have the "capacity" or working ability to accelerate
services to them, and that defendants are, therefore, out of compliance with paragraph 192. 113
broker or the state." (FirstCare) P.Ex. MC-41 at 3-4.
111 Ms. Milam also testified that defendants have not yet been able to determine if the Texas Department of Human Services identifies migrant farmworkers during its interview process. TR 734, line 21 to 735, line 1. Thus, defendants themselves do not currently know how many class member children of migrant farmworkers are assigned to each of their managed care contractors. P.Ex. A-10.
112Defendants' Chiefofthe Bureau ofManaged Care, Susan Milam, TR 696, lines 6-14, testified that the managed care companies have the capacity to accelerate services to class members whose parents are migrant farmworkers, even though the companies cannot identifY the children. She explained that "capacity" means "that if an individual is identified ... as being in a certain category, ... the plan has the internal structure or infrastructure in place that they can respond quickly." TR 718, lines 3-6.
113Defendants report that the children of migrant families are particularly hard to identifY due to many factors, including the population's own unwillingness to self-identifY. Dr. Koops testified that it can be difficult to identifY migrant farmworker families because it would be improper to pry into this issue. TR 775, line 4 - 776, line 11. This reluctance has proven to be a large obstacle to defendants' progress in fulfilling their duty under paragraph 192. However,
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The court is aware of defendants' good-faith efforts, and will consider them in its formulation of enforcement orders. Nevertheless, the court may not stray from the task of enforcing the language of the decree. A "capacity" to serve this subset of the class, which the court has found to be all but wholly lacking, must be in place.114 E. Training ofHealthcare Providers in the Managed Care System: Findings of Fact Regarding Violations of Decree115
In drafting the decree, the parties were particularly concerned about training providers
within the managed care system:
194. TDH will assure by various means that managed care organizations arrange appropriate training for all healthcare providers and their staff who serve EPSDT recipients ... All will be trained about program requirements relevant to their responsibilities, including the relevant terms of this settlement.
The rationale behind provider training is that providers are often the people best situated to explain which services are available to their patients. For example, if providers are unaware of class members' entitlement to free transportation through the Medical Transportation Program, they will not be able to direct their patients to the program when they coordinate appointments and follow-up visits. Or, if providers are not familiar with all elements of the EPSDT checkup,
whether migrant farmworkers are willing to be identified or not depends, at least in part, on whether the agency itself is threatening or welcoming. P.Ex. A-4 at 20. Ms. Lloyd's experience at TMC shows that the task of identification can and should be accomplished.
1141t is noted that a system that effectively identified and offered the acceleration of services to migrants who then refused to take advantage of such acceleration would satisfy defendants' paragraph 192 obligation. However, until proper identification and education ofthis subgroup has been conducted by the MCOs, it is held that the requisite "capacity" has not been developed.
115Training for healthcare providers, which is to be provided by defendants and is not limited to providers within managed care organizations, will be discussed in Section VIII.
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class members will not receive the full preventive care to which they are entitled. In short, "[p]rofessionals cannot provide full services that class members need absent understanding of how EPSDT is supposed to function." Fairness Order at 31.
Plaintiffs presented evidence suggesting that defendants have failed to assure that the MCOs deliver appropriate training to all healthcare providers serving class members. 116 A survey of providers conducted by the Texas Health Quality Alliance indicates that roughly half of the respondents were dissatisfied with "training for providers and office staff." P .Ex. MC-11 at 5. However, defendants have noted that provider surveys do not provide the most accurate data by which to gauge the "appropriateness" of training, as many providers may be dissatisfied with managed care generally. Defendants also note correctly that it is unclear from the survey which aspect of provider training produced the high level of dissatisfaction, because training on EPSDT is not evaluated separately by the survey respondents. Finally, defendants point out that provider satisfaction with managed care generally increases as providers continue to participate in the program. Therefore, the court finds that, on balance, this evidence is only marginally helpful in evaluating the appropriateness of defendants' training programs.
116Plaintiffs rely primarily on the testimony of Ms. Tillman, who testified about efforts to train healthcare providers and their staff when she was the vice president and chief operating officer for Community First, a managed care contractors in the Bexar region. She described her inability to educate properly healthcare providers and their staff about their contractual responsibilities toward class members, reporting that managed care providers and their staffs are often more concerned with billing than with the entitlements of class members under EPSDT. TR 112, line 20 to 113, line 10. She also testified that her time spent educating busy physicians had been very limited and focused on profit-oriented concerns. TR 113, lines 12-21. While Ms. Tillman's descriptions ofthe motives and pre-occupations of physicians and their staffs may be accurate, they do not inform the court as to whether the training provided by defendants is appropriate under the decree.
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The 1999 THQA "MCO On-Site Review" reveals more about the adequacy of defendants' training programs. D.Ex. D-64. It shows, for example, that "[t]hree MCOs have not offered formal training to their physical health specialists." D.Ex. D-64 at 6. The report also indicates that "[p]rovider training beyond the initial orientation is limited unless requested by the provider or their office staff" D.Ex. D-64 at 6. Other evidence has shown that HMO staff themselves are not properly advised about the scope of healthcare services that they must provide to class members. P.Ex. MC-14 at 50, 57; TR 601, lines 8-10. The MCO On-Site Review confirms this impression, reporting that when THQA called the HMOs' member services hotlines, plan representatives from each managed care organization provided inaccurate information. Topics most often misrepresented were home modification, self-referral for behavioral health services, comprehensive care, and medical transportation. D.Ex. D-64 at 13. The evidence also revealed that some HMO staff apparently do not answer callers' questions, but instead refer callers to their
PCP handbooks. P.Ex. MC-12 at 35, 45. Also relevant in determining whether training is "appropriate" is the evidence proffered at
the hearing of the different kinds of training and education currently implemented by the MCOs, which are under explicit contractual obligations to train their providers about EPSDT. D.Ex. D56 at 44.117 That evidence suggests that defendants and the MCOs offer an array of training
111Section 6.8.3 of the "1999 Contract for Services" between defendants and the MCOs provides that each MCO "must provide appropriate training to all network providers and provider staff in the providers' area of practice regarding the scope ofbenefits available and the THSteps program. Training must include THSteps benefits, the periodicity schedule for THSteps checkups and immunizations, and Comprehensive Care Program (CCP) services available under the THSteps program to Members under age 21 years. Providers must also be educated and trained regarding the requirements imposed upon the department and contracting HMOs under the Consent Decree entered in [the instant case]. Providers should be educated and trained to treat each THSteps visit as an opportunity for a comprehensive assessment of the Member."
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services and pursue education through many avenues of contact with providers. D .Ex. D-41; Defendants' Response to Plaintiffs' Second Amended Motion to Enforce Consent Decree at 3436.
"Appropriate," like "effective," is a term difficult to define. The court therefore looks to other relevant provisions in the decree for interpretive guidance. Notably, paragraph 104 expresses the parties' agreed-upon goal in provider education: "To adequately serve recipients, providers must understand how EPSDT works. They must also understand EPSDT recipients' needs."~ 104. This paragraph's emphasis on the providers' actual understanding, and its lack of focus on the programs offered, leads the court to adopt plaintiffs' interpretation of"appropriate." The evidence that MCOs do not understand which services class members may receive and how, and the evidence that providers' staff relay inaccurate information, strongly suggest that defendants have failed to assure that providers receive appropriate training. The court relies on this evidence in conjunction with the 1999 THQA MCO On-Site Review to arrive at the conclusion that, despite evidence of defendants' having made some efforts to provide education, defendants have not "assured" the provision of"appropriate" training. Therefore, it is found that plaintiffs have established by a preponderance of the evidence that defendants are in violation of paragraph 194. F. Data Collection in the Managed Care System: Findings of Fact Regarding Violations of Decree
As the United States General Accounting Office has stated, [t]he continuing trend toward expansion of mandatory, capitated Medicaid managed care programs requires that states have the ability to adequately oversee their contracts with health plans and ensure that states get what they are paying for. However, developing systems to hold plans accountable for ensuring that
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Medicaid beneficiaries receive the care that they need has been a challenge for states.... [T]o ... [assure] that managed care can effectively and efficiently meet the healthcare needs ofMedicaid beneficiaries, more effort is needed. P .Ex. MC-18 at 24. 118 As noted in Section III(A), the parties, recognizing the potential problems in data collection in a managed care system, included paragraph 191:
191. TDH will assure by various means that the number and percent of EPSDT patients in each managed care organization who receive all medical and dental checkups when due and information for outcomes research as needed is accurately collected.
The evidence has shown that defendants have violated paragraph 191 in several ways. First, defendants' federal reports to HCFA about checkups are not accurate or complete. Defendants appear to concede that their reports to HCFA in 1997 and 1998 were incomplete because of their lack of data on class members enrolled in managed care. 119 P.Ex. -32, M-39.
Studies conducted by the Texas Quality Health Alliance (THQA) corroborate the conclusion that defendants' managed care reports about checkups are seriously flawed. One of the primary tasks of the THQA is to evaluate managed care "encounter" data to determine its validity. TR 561, lines 4-22. Encounter data is similar to what is called "claims data" in the feefor-service healthcare environment. In fee-for-service, "claims data" includes information about claims that healthcare providers submit for payment for services rendered to patients. Because
118Similarly, the Health Care Finance Administration has characterized the collection of EPSDT data as "problematic," noting in particular problems in the "reporting of services provided in capitated settings." P.Ex. MC-21 at 6.
119 Defendants provided a revised report for 1998 as Exhibit D-115, see also D.Ex. D-96, D-97. During the hearing, defendants provided a second revised report, which reduced the participation rate to reflect further revision of the managed care checkup data. Specifically, in the second revision, defendants revised their participation rate for class members of all ages downward from .72 to .66. TR 465, line 9 to 466, line 11. While the court appreciates defendants' recent efforts to provide correct data, their last-minute revisions to the report do not inspire confidence in the accuracy of the managed care data.
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managed care frequently does not pay healthcare providers on a per-service basis, claims data is not available. Instead, managed care organizations record "encounters." TR 561, lines 13-22.
In general, THQA has been unable to validate data provided by defendants' managed care contractors, as is revealed by the most recent THQA study ofmanaged care encounter data. P.Ex. MC-6 ("Validation Study, 2000"). The Validation Study found significant inaccuracies in the managed care data. THQA was unable to verify the MCOs' reports of the number of Texas Health Steps medical checkups conducted on managed care enrollees. P.Ex. MC-6 at 37; TR 620, lines 4-11. In other words, THQA could not confirm that the MCOs had correctly calculated the number of checkups provided to class members. P.Ex. MC-6 at 37. In the words ofTHQA's research director, the MCOs' utilization management data "need[s] to be interpreted with considerable caution.... Overall, I would be cautious in using it." TR 620, lines 12- 25 (Testimony of Dr. Jemelka).
There also seems to be a considerable lack of accord between the managed care administrative data sets and class members' medical records. TR 632, lines 9-11. Moreover, THQA never checked to see if the 1998 managed care administrative databases over-represented checkup encounters found in medical records. This shortcoming in the study is of great consequence because the assumption in the medical community that if an event is not recorded in a patient's medical record, it did not happen. TR 630, lines 3-19. Furthermore, in a 1997 study, THQA found that about one-quarter of the data reported in the MCOs' administrative databases was not reflected in any medical records. TR 622, lines 11-16. This suggests that the MCOs' administrative data reports checkups that have not occurred, or that have not been documented.
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Finally, defendants fail to ensure that accurate outcome measures120 data is collected on class members in managed care. Jimmy Blanton, M.P.A., "principal staffperson"121 for the outcome measures research required by the decree explained that such outcome measures would help to assess whether Texas Health Steps clients' care is improving, and would be instrumental in correcting problems with the system and improving class members' care. TR 513, lines 13-21.
However, defendants have not obtained all of the data that they need in order to include managed care enrollees in outreach studies required by the decree. For example, although defendants have agreed to study class members' length of hospitalization for asthma, they "will not be able to provide [data for] managed care" enrollees regarding this factor. TR 519, lines 1320. At the time of the hearing, defendants had established managed care programs in all major urban areas in Texas. P.Ex. MC-57. By excluding class members in managed care, Defendants exclude a very large and important group of class members from their database.
To conclude, defendants do not accurately report the number and percentage of class members in each managed care organization who receive medical checkups when due. Their data is neither complete nor accurate,122 and they are therefore in violation of paragraph 191.
12onefendants' obligations under the outcome measurement provisions of the decree are discussed in more detail below, in Section VII.
121TR 501, lines 13-15. 122 A similar conclusion has been reached in the legislative arena. The Texas Legislature's Sunset Advisory Commission's 1998 staff report concluded that "[t]o date, the State has been unable to obtain much useful information from existing Medicaid managed care data." P.Ex. M-3 at 91.
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V. Issue Five: Toll-Free Numbers
A. Overview To help class members acquire knowledge about Texas Health Steps, locate providers, set
appointments, and arrange transportation to and from appointments, defendants maintain a statewide toll-free telephone number and two toll-free telephone numbers in each geographical region. The purpose ofthe statewide hotline is to respond to questions about Medicaid.123 The Regional Texas Health Steps toll-free numbers were instituted to answer questions about EPSDT and to help class members find healthcare providers to serve them. Regional Medical
123 Defendants argue that this statewide toll-free number is not covered by the decree. They argue, first, that paragraphs 239- 245 describe the purposes of toll-free numbers, which are to help class members schedule appointments and to arrange transportation. Defendants urge that the statewide toll-free hotline does not serve these functions, so it is not covered by the decree. D.Ex. D-92. Second, defendants assert that there are few Texas Health Steps-related calls to the statewide toll-free number. A "Texas Health Steps-related ... [call is when] ... a client called and asked a question about Texas Health Steps." TR 958, lines 20-23. In 1999, the total number of Texas Health Steps-related calls to the statewide toll-free number was 7,677, or 3.25% oftotal calls received. D-91. However, it is noted that defendants' definition of"Texas Health Stepsrelated calls" is so limited that it overlooks many calls about or from class members, particularly given the broad scope of their entitlement to services from defendants. 42 U.S.C. § 1396d(r)(5).
Plaintiffs urge that the statewide toll-free number is covered by the decree. First, the heading to paragraph 247 refers to "Standards for Toll-free Help Lines (Transportation, Scheduling Assistance and Other)(emphasis added). The heading alludes to more than just scheduling and transportation assistance, and by its own terms purports to cover more than just the lines that deal directly with scheduling and transportation assistance. The court is in agreement with plaintiffs that the plain language of paragraph 247, which sets out standards for "Toll-free Help Lines (Transportation, Scheduling Assistance and Other)," covers the statewide Medicaid hotline. Although it is noted that class members are not the only group of people who use the hotline, nor the largest, the hotline must be considered a "toll-free number[] for EPSDT recipients" within the meaning ofparagraph 247 because it is set up to answer the questions of all Medicaid recipients, whether they are EPSDT clients or other Medicaid recipients.
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·Transportation Program toll-free numbers help class members arrange for transportation to appointments. 124
Before this court's entry of the decree, class members "had serious trouble even getting through to [defendants'] staffby phone to ask for help." Fairness Order at 15. After long waits at pay phones, class members with no phones at home were asked to leave home phone numbers for return calls. !d. Also, "[g]etting transportation assistance from toll-free telephone numbers often required long waits." Id at 16.
Many class members do not have phones. 125 The lack of a phone makes it difficult, if not impossible, for class members and their families to make repeated calls to defendants' toll-free numbers, or to wait for defendants to answer their phones. TR 30, lines 8-20; see also P.Ex. A-2 at 12. According to Terry Hicks, the Director of Medical Transportation for East Texas Support
1240ne of the most common reasons that Texas Medicaid recipients miss healthcare appointments is that they have no form of transportation. P.Ex. T-43, "1999 Report on the Medical Transportation Program: A Survey ofTHSteps Recipients and Providers," at 37.
125 According to Ms. McHan, many class members' families do not "have a phone or ... have a phone part of the time but then have it disconnected [or] have difficulties maintaining a phone on a regular basis." TR 24, lines 2-8. Ms. Singleton also testified that class members and their families have trouble maintaining telephones. "[T]he phones go on and off almost like lights." TR 167, line 22; TR 244, lines 16-20. In addition to lacking a phone at home, many class members' parents lack access to phones while they are at work. They are only allowed to use the phone for emergencies or during short breaks during their shifts. TR 24, lines 9-24.
The Federal Communications Commission's "Telephone Penetration by Income by State" (January 1998) confirms this testimony. In Texas and throughout the United States, poverty is associated with having no phone at home. P.Ex. T-4 at 5. For example, although more than 90% of all Texas households had telephones in March 1997, less than 80% of Texas households with incomes under $10,000 had phones. P.Ex. T-4 at 5.
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Services in Jasper, Newton County, the problems with phone-call coordination deprive class members of servicesY6
If Medicaid recipients call and call and can't get through to the Medical Transportation system, eventually they give up and stop trying. If they can't find another way to get to their healthcare appointment, they miss the appointment. Some ETSS clients have missed appointments because they couldn't get transportation help through the Texas Dept ofHealth's Medical Transportation Program toll-free numbers. P.Ex. A-3 at 7. As a result, many EPSDT recipients have not received the Medicaid services they need. P.Ex. A-3 at 10. 127 Many class members report that they have not used defendants' transportation program because they were unable to gain access to the program by phone. P.Ex. T-43 at 42-43, Table 7.1. Seventeen percent of class members report that they could not use Defendants' Medical Transportation Program assistance because the toll-free number was busy. TR 976, lines 21-24. Callers also complain ofhaving missed scheduled healthcare appointments because they cannot get through to defendants' toll-free numbers. TR 974, lines 8-12. 128 In response to these problems, the parties agreed to the following decree provision:
126Ms. Hicks bases her statement on many years of experience working with class members who need transportation assistance to be able to use Medicaid services. P.Ex. A-3 at 3. For thirteen years, she has been responsible for arranging all rides provided by ETSS for Medicaid recipients who live in fourteen East Texas counties. P.Ex. A-3 at 4. ETSS provides about 2,500 rides per month; about 45% of the rides are for class members. P.Ex. A-3 at 5.
127 Defendants' witness Mr. Millwee agrees that if callers cannot get through to defendants' toll-free numbers, they face barriers obtaining transportation assistance. TR 973, line 25 to 974, line 12.
128 For example, M.G. G. complained that she was unable to reach Defendants' South Texas Medical Transportation Program, and consequently her "very ill" son missed his appointment. Similarly, Y.D. complained that her son missed his appointment with his doctor because ofthe lack of transportation. Ms. D. waited a long time while the line was busy, and when she finally did get through, the system disconnected her. P. Ex. T-40.
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247. Standards for Toll-free Help Lines ITransportation, Scheduling Assistance and Other) Tollfree numbers for EPSDT recipients will be staffed sufficiently by well trained personnel. Each recipient will receive prompt service by a person who is knowledgeable, helpful and polite. All calls will be answered promptly absent equipment failure. Equipment will be adequate so failure results only from circumstances beyond Defendants' control, such as bad weather. TDH will make reasonable arrangements to meet the needs of recipients who do not speak English. No calls may be "answered" by a tape recording during working hours except in unusual circumstances.
Plaintiffs complain that class members' calls are not answered "promptly," and that class members often are not serviced by a "person who is knowledgeable, helpful and polite." B. Findings of Fact: Prompt Answering of All Calls
Abundant evidence suggests that defendants have been less than prompt in answering class members' calls. Data for the period of September through November of 1999 indicates that the average waits in queue on the Texas Health Steps Toll-free Lines for Regions 4/5 and 9/10 ranged from 94 to 121 seconds, and 142 to 161 seconds, respectively. P.Ex. T-22. The average waits in queue on the Medical Transportation Program Toll-free Line during those months ranged from 124 to 190 seconds in Region 6, and from 46 to 56 seconds in Region 7. D.Ex. D-109. And on the Statewide Toll-free Line, the average wait ranged from 163 to 229 seconds on the English line, and from 96 to 237 seconds on the Spanish line. P.Ex. T-17, T-18.
However, these averages mask the extremely long delays sometimes faced by class members. For example, in December of 1999, the Region 2 (Abilene) Medical Transportation Program toll-free number had an average speed in answering of30 seconds. However, the longest wait before a call was answered was 13 minutes and 2 seconds. P.Ex. T-25; see also TR 961, line 25 to 963, line 20. Similarly, in December of 1999, the Tyler Medical Transportation Program had an average speed in answering ofjust 11 seconds. Even so, the longest wait before a call was answered was 9 minutes and 46 seconds. P.Ex. T-26.
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Likewise, in November of 1999, the average wait in queue for the South Texas Medical Transportation Program was 16 seconds, D. Ex. D-109, while the longest wait in queue in the Corpus Christi call center was 12 minutes and 13 seconds. P.Ex. T-29. In 1999, the longest wait for calls to be answered by the South Texas number was 17 minutes and 18 seconds. P.Ex. T-29; see also TR 964, lines 5-21; see also TR 967, line 16 to 969, line 10. 540. In Region 6, as recently as the week ofNovember 8, 1999, the maximum delay before a call was answered was 23 minutes and 20 seconds. During the week of August 23, 1999, the longest delay was nearly 29 minutes.
As for the statewide Medicaid hotline, the English-language line had maximum waits of over 22 minutes in each month of 1999, and the longest maximum wait for a call to be answered was 49 minutes and 16 seconds. P.Ex. T-16; see also TR 970, lines 2-5. For the Spanishlanguage statewide line, the longest maximum wait was 59 minutes and 20 seconds, in June of 1999. P.Ex. T-16; see also TR 970, lines 8-13.
High call "abandonment rates" - percentages of callers who hang up, presumably in frustration- provide additional evidence that calls are not being answered promptly.129 For the Texas Health Steps Toll-free Lines, the abandonment rate ranged from 12 to 20% from September through November of 1999 in Region 5. P.Ex. T-22. For the Medical Transportation Program Toll-free Line, three regions had abandonment rates of over 10 percent from June through August of 1999. (Region 6, the worst ofthe lot, had a rate that ranged, approximately,
12~efendants appear to argue that abandonment rate evidence is irrelevant, as the decree is silent regarding the abandonment of calls. Defendants' Response to Plaintiffs' Second Amended Motion to Enforce the Consent Decree, at 38. However, it is found that these rates are one of several indicators of the promptness with which calls are answered by defendants and are therefore relevant to the issue ofwhether defendants are in compliance with paragraph 247.
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from 20 to 28 percent.) D.Ex. D-109. For the Statewide Toll-free Line, the abandonment rate for February of 1998 to February of 1999 ranged from 17 to 48%. P.Ex. T-16.130
Evidence that calls are not answered promptly is not limited to statistics. Several mothers
and grandmothers of class members from different parts of the state testified about these delays.
One mother of three seriously ill children testified that she called defendants' statewide Medicaid
hotline several times and was put on hold for 15 to 30 minutes. 131 She testified further that she
had been on occasion "placed on hold for more than an hour. . . Only twice or perhaps three times
was I ever able to talk with a live person, even after a long wait." P.Ex. A-1 at 4-5.
Another mother noted:
Most of the time it's really hard to get the Houston Medical Transportation office on the phone. Their phone is busy, busy, busy.... Sometimes I finally get through and sometimes I don't. When I don't get a busy signal, sometimes the phone rings 20 times or even more before anybody answers. Then, I get put on hold.... [J]ust last month ... [s]omeone answered pretty quickly, but they just said 'hold' and then put me on hold again. They didn't even let me say anything. After that it was about 15 minutes before they got back on the line.
P.Ex. A-5 at 9.132
130 The average and maximum delays before callers abandon their efforts to reach defendants' Medical Transportation Program toll-free numbers are also relevant to this discussion. In Region 6, the average delay before abandonment can be quite long. For example, during the week of September 6, 1999, the average delay before abandonment was more than 5 minutes. P.Ex. T-28. From May 31 to December 13, 1999, the shortest weekly average delay before abandonment in Region 6 was 63 seconds during the week ofDecember 13. During that same week, the maximum delay before abandonment was almost 15 minutes. P.Ex. T-28.
131C.H. is a Tarrant County mother of three young class members, Jonathan, James and Jacob, each of whom has ongoing, serious health problems. See P.Ex. A-1 at 3-4.
132B.M. is the mother of class member Samantha, who suffers from various chronic health problems. See P.Ex. A-5 at 5. B.M. herself is disabled. P.Ex. A-5 at 4. She cannot drive because her sight and brain were damaged in an accident. P.Ex. A-5 at 8. Her testimony concerned defendants' Medical Transportation Program toll-free number in Houston.
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Class members were not the only people who testified about calls not answered promptly. Ms. McHan testified that her staff often must help class members make arrangements with defendants' Medical Transportation Program when family members have difficulty contacting the program. TR 28, lines 6-12. Numerous incidents, as recent as December of 1999, reported by defendants' own toll-free number staff reveal many problems and delays inconsistent with any commonsense notion of"promptness."133

133 Some of the incidents are recounted, below:

•

In Region 1, callers hear a message to "choose 1 or 2. When you choose either one of

these options, the computer voice comes on saying 'the person at extension 780 is on the

phone, please leave a message at the tone or press 0 for assistance. . . . If you press 0, it

loops back to the computer voice..." December 3, 1999 memo from Susie Arellano,

TDHRegion 1. P.Ex. T-40.

•

Region 4 "[c]lients say our number rings and goes dead. I tested it and it rang several

times and went dead. I tried again and got our second recording. Something is not right."

December 14, 1999 memo from Jess Reeves, TDH Region 4. The problems were still not

fixed two weeks later. See December 15, 1999, December 16, 1999 and December 28,

1999 memos from Jess Reeves, TDH Region 4. P.Ex. T-40.

•

In Region 10, "we've had a lot of calls from clients saying that they are calling our office

and no one is answering the phone. The phone reports are showing an elevated increase in

abandoned calls, actually, we've never experienced them to be this high since the problem

we had last time where equipment needed to be replaced." December 9, 1999 memo from

M. L. Duran, TDH, Region 10.

•

"[W]e continue to receive calls from upset clients saying we are not answering the phones.

A contractor called and said she tried for 15 minutes calling the 1-800 # and the line was

repeatedly busy. I tried it and verified that it rings busy." December 13, 1999 memo from

Mary Lou Duran, P.Ex. T-40.

•

In Region 11, "O]ust tried from my phone, I reached the recorded message, then it is

ringing and ringing." December 28, 1999 memo from R.M. Garza, TDH Region 11. P.

Ex. T-40.

•

In late December of 1999, "Javier noticed an unusual amount of abandoned phone calls.

Today, workers are receiving calls, answering them and there is no one on the line, phone

simply hangs up." December 28, 1999 memo from Gloria Macias, TDH. P.Ex. T-40.

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C. Violations of Decree: Prompt Answering of All Calls Defendants respond with three arguments. First, they claim that the phrases "prompt
service" and "answered promptly" are too vague to create binding obligations. Second, defendants assert that the court should adopt a five-minute standard for promptness in interpreting the decree, and that they have met that standard. Third, defendants argue that the statewide average of the regional average waits in queue and abandonment rates, not the regional figures themselves, should form the basis of this court's judgment regarding their compliance with the decree.
The first of these arguments is rejected. Defendants promised plaintiffs that they would provide "prompt service" and answer calls "promptly" - a promise that may be enforced within the meaning of these phrases as interpreted within the "four comers" of the decree. The court agrees with defendants that these terms are ambiguous, but that does not end the inquiry. A finding that language in a consent decree is ambiguous merely permits the court to consider extrinsic evidence of the parties' intent in drafting the language. United States v. liT Continental Baking Co., 420 U.S. 223, 238 (1975). Our task is to understand more fully what the parties meant by the use of the word "prompt."
Abandonment Rates Plaintiffs urge the court to consider evidence of an alleged industry-wide standard for the prompt answering of calls, based on average waits in queue and abandonment rates targeted by various corporations in their operation of toll-free telephone lines. However, evidence of performance by corporations such as General Electric, Land's End, and American Express is simply too far removed from the state's operation of toll-free numbers for the benefit of its
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Medicaid population to be considered relevant to the parties' understanding of the word "prompt." These pie-in-the-sky targets, characterized within a Kaiser Associates report prepared for defendants as the "rapid, timely" responses of "best-in-class companies" reveal little about the parties' intent when they agreed to the "prompt" answering of calls. P.Ex. T-11. Nor does the isolated performance of Community First, one of defendants' managed care contractors in the Bexar region, paint a clear picture of any industry-wide standard. P.Ex. T-14. 134
However, several documents in evidence have proved useful in arriving at a working definition of"prompt." First, a final draft of the "Medicaid Managed Care Enrollment Standards and Guidelines," issued by the U.S. Department ofHealth and Human Services Healthcare Financing Administration (HCFA) includes a section entitled "Abandoned Calls/Call Waiting Times." P.Ex. T-10. In that section, HCFA lists a set of"generally acceptable standards" which "states should require" those who conduct enrollment and information service functions in Medicaid managed care to meet. Among the enumerated standards are an average queue wait time ofless than 45 seconds, and an abandonment rate of five to ten percent. Id Although these standards were promulgated after the signing of the decree, and are non-binding, the frequent citations to and recitations of the federal ESPDT statute throughout the decree suggest that the parties intended to draft a document that would be rooted in the requirements of federal law. It is
134Plaintiffs also draw the court's attention to the performance standards ofMaximus, with whom defendants have recently contracted to conduct Texas Health Steps outreach in 195 Texas counties. TR 857, lines 1-13; D.Ex. D-108. As part oftheir Texas Health Steps outreach efforts, Maximus takes calls from the same callers (class members and their families) who also call the defendants' toll-free numbers, TR 971, lines 12-8, but Maximus maintains a much better average speed to answer of20 seconds. TR 863, lines 4-5. This performance rate, which should provide hope for the future of defendants' outreach program, is best categorized as another example of top performance to which plaintiffs may not hold defendants without having included clear standards in the decree.
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reasonable to surmise that in agreeing to the word "prompt," the parties were agreeing to a term that could only derive its meaning from some outside source, or some unmentioned standard of performance. Because the decree draws so heavily on federal law, it is reasonable to examine federal guidelines in construing those provisions the court finds ambiguous.
The court is mindful ofthe Supreme Court's mandate in Armour to interpret decrees
without reference to the purposes offederallaw. See Section I(C). It is the incorporation ofthe
language of the federal EPSDT statute throughout the decree by the parties themselves, however, that suggests that the ambiguity raised by "prompt" may in part be resolved by consulting the standards of the federal agency charged with the administration ofEPSDT. By expressly incorporating the language of federal law throughout the decree, the parties created the backdrop against which an ambiguous phrase like "promptly answered" must be considered.
Nevertheless, because of the above-noted risks of interpretation, other extrinsic evidence will be considered to determine the meaning of"prompt," in accordance with the Supreme Court's decision in ITT Continental Baking Co. An excerpt from defendants' contract with its MCOs proves helpful in this task. P.Ex. -34. One purpose ofthe contract is to ensure that defendants, by requiring various activities by the MCOs, comply with the mandates of the consent
decree. See Section IV(C), ~~ 190, 192. Section 8.5 ofthe contract requires the contracting
MCO to maintain a toll-free hotline, and to demonstrate "telephone availability" through an "abandonment rate ofless than 10%." P.Ex. M-34 at 84. Obviously, the defendants' having required the MCOs to maintain an abandonment rate ofless than ten percent does not lead directly to the conclusion that the defendants bound themselves to a similar standard in their contract with plaintiffs. However, the fact that many provisions of the MCO contract seek to
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ensure defendants' compliance with the decree suggests that the rate may be one component of MCO performance that defendants thought necessary to the adequate servicing of the plaintiff class. While the decree does not specifically state that defendants must assure the "prompt" answering of calls by MCOs, it is logical to conclude that defendants regarded the maintenance of a ten percent or lower abandonment rate as necessary for the facilitation of plaintiffs' "timely receipt" of services from MCOs. ~ 190. Therefore, even if paragraph 247 were read to require only minimally adequate "promptness," defendants' MCO contract, which sets out standards that MCOs must meet for defendants to meet other decree provisions, suggests that an abandonment rate often percent or lower is required by paragraph 247.
Even if a different standard of promptness governs the behavior ofMCOs than the standard to which this court may hold defendants under paragraph 247, defendants' internal documents lend further support to a ten percent rule. Plaintiffs' Exhibit T-13 includes an excerpt from a document entitled "Monitoring and Coaching for Peak Performance," which was studied by defendants' toll-free number staff at a training session provided by Jane Finn and the Quality Alert Institute. The document coaches defendants' employees operating toll-free lines to aim for the "Industry Standard" offive percent or lower abandonment rate. P. Ex. T-13 at 12; TR 971, line 23 - 972, line 8. This document- again, because ofthe defendants' likely aim of compliance with the decree - is suggestive of how defendants interpret the word "prompt." The document is therefore instructive on what the defendants intended when they agreed to answer calls "promptly."
Perhaps most important, defendants have set their own standards for their Regional Texas Health Steps and MTP lines: on average, they must answer calls within 90 seconds and they must
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abandon no more than ten percent of calls. TR 891, lines 4-6 (Testimony of Billy Millwee). It is acknowledged that defendants' behavior after the signing of the decree does not necessarily reveal their understanding of the requirements of paragraph 247. 135 However, the congruence of each of the pieces of evidence discussed above, and the persistent appearance of the five to ten percent abandonment rate in particular, leads this court to conclude that paragraph 247 requires a degree of promptness associated with an abandonment rate approximating ten percent.
Queue Waits Had defendants produced evidence of short average waits in queue, the abandonment rate would have less weight as a indicator of actual promptness. But the evidence presented suggests that the average waits in queue are sometimes quite lengthy. See Section V(B). Defendants' goal is for their Texas Health Steps and Medical Transportation Program toll-free numbers to answer calls on average within ninety seconds. TR 892, lines 14-8. (Testimony ofMr. Millwee). Not all regions meet this standard. See Section V(B). Defendants urge the court to accept a "fiveminute-standard" for queue waits as characteristic of"prompt answering" as defined by the decree. However, defendants' reliance on other toll-free number services is rather unhelpful. D.Ex. D-93, D.Ex. D-112; Plaintiffs Proposed Findings ofFact and Conclusions ofLaw. No order ofthe court requires that these toll-free numbers be answered promptly. Moreover, several of these toll-free number services are run by defendants or their contractors. D.Ex. D-93. It would be letting the fox watch the chicken coop to allow defendants to use their own
135Nonetheless, defendants note in their post-hearing brief that "[t]he toll-free telephone standards embraced by the Department ofHealth when the Consent Decree was entered in 1996 were no more than ten percent call abandoned ... " Defendants' Post-Trial Brief at 47.
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performance (or that oftheir contractors) to help define the standard of promptness required by the decree.
For these reasons, it is found that not enough evidence has been provided for the court to determine what average wait in queue may be deemed "prompt" under paragraph 247. However, evidence about lengthy delays experienced by individual class members is useful here. See Section V(B). This evidence aptly demonstrates that class members' waits in queue do not comport with a common understanding of what it means to have one's call answered "promptly."
Unit ofMeasurement Defendants' primary attempt to rebut plaintiffs' evidence of noncompliance in this area involves a dispute about the proper unit of measurement. Specifically, they object to the selectively pulling of data from specific regions or clusters of counties in which defendants' record is particularly abysmal. Defendants assert that the statewide average wait in queue and statewide abandonment rate are more reliable indicators of promptness. Defendants' Response to Plaintiffs' Second Amended Motion to Enforce Consent Decree, at 38-39. They argue that, on average, regional average waits in queue are not excessive. D.Ex. D-84, D-85, D-89, D-90. Specifically, defendants note that, as of the first quarter of fiscal year 2000, the average wait in queue for the regional Texas Health Steps lines was 43 seconds; for the Medical Transportation Program it was 47 seconds. Defendants also note that statewide average abandonment rates for the Texas Health Steps toll-free lines ranged from 4.6% to 5.7%, and that statewide average abandonment rates for the transportation program line ranged from 9% to 11%. However, one witness admitted that charts about statewide performance do not reveal whether defendants answer "all calls" promptly. TR 961, lines 4-24 (Testimony ofMr. Millwee).
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The phrases "each recipient" and "all calls" in paragraph 247 suggest that the paragraph should be read to require promptness for all class members, in all regions of the state. It is true that averages must be used to gauge the "promptness" which defendants afford class members. However, given the paragraph's inclusive language, and its emphasis on the experience of individual class members, it is concluded that class members, no matter where they live, are entitled to prompt service. The regional averages are thus a superior measure of defendants' success in ensuring promptness than are statewide averages, which mask defendants' failures in some regions to ensure promptness. The court's decision to rely on regional data is also compelled by the parties' emphasis on "statewideness" throughout the decree. ~~ 271-281. It is therefore found that defendants were out of compliance with paragraph 247 during the periods of time in which calls were not answered promptly in certain regions of the state. 136 D. Knowledgeable, Helpful, and Polite: Findings of Fact Regarding Violations of Decree
The decree also entitles class members to "prompt service by a person who is knowledgeable, helpful and polite."~ 247. However, the evidence presented at the hearing demonstrated that defendants' staff members are often unhelpful or lack knowledge. 137
136Defendants point to recent efforts made to improve their toll-free line services, including the transition of several regional lines to a contractor, Maximus, Inc., which has resulted in dramatic improvements. Defendants' Response to Plaintiffs' Second Amended Motion to Enforce the Consent Decree, at 39. These efforts are applauded and the results striking. This record will inform the court in its formulation of orders of enforcement.
137Also, sometimes toll-free number staff are unable to assist class members because the caller speaks only Spanish and the staff do not speak Spanish, even in the South Texas office. See, e.g., complaints from M.R. from McAllen, M.O. from Donna, F.N. from Austin. P.Ex. T-40.
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The mother of one class member testified that "[o]n the two or three occasions that I was able to talk with a live person, the person was not polite or helpful. They told me that they could not answer my questions and that I needed to call somewhere else." P.Ex. A-1 at 5.
Another mother of a class member said that one "problem with the Houston Medical Transportation Program office is that sometimes the person who answers the phone doesn't know what they should do." P.Ex. A-5 at 9. Although she herself is disabled by cerebral palsy, the Medical Transportation Program office staff member told her that she and her daughter "had to take the bus to [the class member's] medical appointments. . . . [the staff member] just kept saying that if we couldn't take the bus they couldn't help us." P.Ex. A-5 at 5-9. The staff person was unaware of other transportation options, such as cabs or Metrolift. 138 Although she promised to research the issue and call back, she never did. P.Ex. A-5 at 9. The problem remained unresolved until counsel intervened.
A third parent stated that the Medical Transportation Program staff need to be better trained. P.Ex. A-7 at 7. Even though her son had had the same schedule for his rehabilitation appointments for months at a time, the Transportation Program staff still made scheduling errors despite repeated calls. P .Ex. A-7 at 7. She also described how difficult it was to arrange her son's transportation to rehabilitation after her truck broke down. She requested that a van be sent to pick him up at school and take him to rehabilitation. The staff person at the Transportation office told her that it was impossible because her son was a minor. The problem was rectified only weeks later, after the mother discussed the matter with a supervisor at MTP. P .Ex. A-7 at 8.
138 Decree paragraphs 214-16 describes the scope of defendants' transportation services. See also~~ 231-2, Order (filed May 19, 1997).
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Moreover, in order to receive mileage reimbursement to which she was entitled, she found it necessary to consult with counsel. P.Ex. A-7 at 8.
Finally, Ms. McHan testified that "some of the staff need to be a little better trained in sensitivity toward the clients they are working with." Both she and her clients, who are parents of class members, have experienced the staff members' rudeness over the phone. TR 39, lines 11-6, see also P.Ex. A-2 at 19. She also noted that Medical Transportation Program toll-free number staff are sometimes less than helpful because they lose information that has previously been supplied. Ms. McHan stated that workers sometimes deny that the information has been given to them on prior occasions. TR 40, lines 5-12.139
Based on the evidence presented above, the court finds by a preponderance of the evidence that defendants have violated paragraph 247. Plaintiffs have succeeded in demonstrating that class members' calls are frequently not answered by knowledgeable and helpful staff
members.

139She also explained how staff members' rudeness and unhelpfulness can be a barrier to receipt of services that class members need. It can be

devastating.... Your child is already sick..... You need to go out oftown, spend the night [to address your child's health problems]. How are you going to make arrangements for your other children. You are already stressed out, and then there is somebody who has no empathy for you on the phone. Families feel really badly about that sort of thing.... I've had parents say to me, "I don't want to feel like I'm a drain on the system or that I am scum because I have to ask for this help. . . ."And that does affect families quite deeply.... I have had family members cry in my office because of something somebody said to them.

TR 40, line 22asking for help, not to call back,

41, line 12. When she explained, they and not to attempt

class members feel frustrated or demeaned in the process of often fail to get healthcare that they need, because they decide to gain access to the system in the future. TR 56, line 24 to

57, line 4.

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VI. Issue Six: Case Management
A. Role and Importance of Case Management "Case management" refers to the service provided by "case managers," or employees of
the state who help families to navigate the often confusing healthcare system. Case management helps indigent families to develop coherent plans to take care oftheir children's healthcare and related needs. Case managers also work to help empower families to request healthcare services on their own. Their support can often be crucial for class members and their families, who are largely uneducated and unfamiliar with the state's healthcare system in general, and with Texas Health Steps in particular. Thus, case management plays a vital role in facilitating recipients' access to needed medical, social, and educational services.
Before this lawsuit was filed, defendants "only provided case management on a limited basis to several categories of class members." Fairness Order at 33. In response to the decree, defendants developed a new case management program called Texas Health Steps Medical Case Management ("case management"). The program is aimed at a broad group of class members who have a health condition or risk, have special healthcare needs, or whose physical conditions are medically complex or medically fragile. P.Ex. C-1 at 14. The purpose of providing case management to class members who are at risk ofhealth problems is "preventive." TR 141, lines 6-18.140
Class members face numerous barriers in gaining access to healthcare, including language barriers, lack oftransportation, unemployment, substandard housing, and lack offood, shelter,
140 The components of Texas Health Steps case management are intake, family needs assessment, service plan development, and follow-up. TR 366, lines 6-16, see also P.Ex. C-1 at§ 33.503.
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and clothing. TR 15, lines 5-15. The evidence demonstrated that Texas Health Steps medical case
management is needed to overcome barriers to care. TR 380, line 15 to 381, line 6; TR 405, line
22 to 406, line 3 (Testimony of Margaret Bruch). 141 Case managers often find adequate food and
shelter for class members and their families. Without case management, it is extremely difficult
for some class members to receive services that they need through defendants' managed care
programs. TR 70, line 23 to 71, line 8 (Testimony ofMs. Tillman)!42 Children who are homeless
or who live in shelters are also particularly difficult to serve without case managers. TR 71, lines
17-22. And in situations in which a child's health problem stems from the poor health of the
child's parents, case managers play a vital role. 143 In each ofthese situations, case management
provides a comprehensive approach that helps overcome families' multiple obstacles to safe and
healthy living. 144
141 The court qualified Ms. Bruch, a program consultant for Texas Health Steps case management, as an expert in "medical case management in the Texas Health Steps program and other programs administered by the Department ofHealth." There was no objection. TR 356, lines 11-6.
142 Ms. Tillman is one of four owners of Community Outreach, Referral and Evaluation in San Antonio. She testified about the day-to-day provision of Texas Health Steps case management. TR 67, lines 2-3; P.Ex. W-11. Since its beginning in 1998, CORE has helped about 1,000 class members and their families. TR 69, lines 15-17.
143 For example, Ms. Tillman discussed the plight of a class member who was not eating properly and therefore failing to thrive. Upon a referral from the doctor, CORE discovered that the class member's mother had an eating disorder. TR 72, lines 20-5. She also noted that parents with mental retardation or mental health problems sometimes "don't understand how the system works" and need to be educated by case managers. TR 73, lines 3-15. She spoke about parents who become "overwhelmed" by large numbers of children with serious health problems, and the need to assist them with transportation and other support. TR 74, lines 9-25.
144 For example, CORE helped a family where the father was a single parent raising five class members. The mother was in jail. CORE initially became involved when the 16-year-old class member's arm was injured in a drive-by shooting. He needed intensive physical therapy on
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B. Findings of Fact Acknowledging the importance of medical case management to the families who need it,
the parties included in the decree the following provisions:
248. EPSDT programs must provide case management to each recipient if needed. Since case management is a service that Medicaid programs may cover, 42 U.S.C. §§ 1396d(a)(19); 1396n(g), Medicaid programs must cover it for EPSDT recipients if medically necessary. 42 U.S.C. § 1396d(r).... 264. By January 31, 1996, the parties will complete a case management plan for the EPSDT program. Case management includes arrangements for the child and the family which are needed to meet the child's healthcare needs. The plan will make sufficient case management available in every county or cluster of counties where few recipients reside. It may provide case management by contract with local agencies or on a fee-for-service basis, whichever is more effective in each county.
The Need At issue is whether defendants have enacted a plan that makes "sufficient case management available in every county or cluster of counties where few recipients reside," as required by paragraph 264. As a threshold matter, the parties dispute how many class members are in need of the service. Defendants estimate that about 7% of the class (about 90,000 to 107,000) are in need of medical case management. Plaintiffs contend that more than 10% ofthe class need case management. Plaintiffs' Second Amended Motion to Enforce the Consent Decree, at 37.
his arm. TR 77, lines 2-3. In addition to helping with the physical therapy problems, CORE helped the father to get into a work program and helped the family to find other housing in a neighborhood without gang violence. CORE also addressed the other class members' health problems. Thus, even though the initial reason for helping the family was medical, CORE tackled each element that put the class members' health at risk. TR 77, lines 15-19, TR 76, line 20 to 78, line 6.
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Defendants base their 7% estimate on data from the defendants' High Risk Pregnant Women and Infants case management program ("PWI case management"). TR 397, lines 4- 12. About 5% of pregnant women and infants with Medicaid use PWI case management. TR 397, line 13 to 398, line 1; P.Ex. C-20. Defendants estimate that the rate of need for Texas Health Steps medical case management (MCM) would exceed this rate by a small percentage, because they expect that more class members will know about MCM. However, reason defendants, the 7% estimate is too high because it does not account for class members' use of other forms of case management. TR 364, line 23 to 365, line 13.145 For this reason, defendants estimate that only 5 to 6% of class members need Texas Health Steps case management. TR 434, lines 18-21 (Testimony ofMs. Bruch).
The above reasoning is seriously flawed. First, defendants have shown only that 5% of pregnant and infant Medicaid recipients actually use PWI case management, not that only 5% of these Medicaid recipients need case management. Second, defendants' reliance on PWI case management data underestimates the need for Texas Health Steps case management, because the PWI case management offers a narrower set of services, thereby reducing the expected population in need of those services. 146 Also, some class members who need Texas Health Steps case
145 For example, class members may receive case management through the Mental Health/Mental Retardation agency, Early Childhood Intervention (ECI}, Texas Commission for the Blind, PWI, Children with Special Healthcare Needs (CSHCN} and the Medically Dependent Children's Program (MDCP). D.Ex. D-6, see also D.Ex. D-16. About 60,000 class members received case management through these other programs in fiscal year 1999. P.Ex. C-25.
146 For example, Ms. Tillman testified that her Texas Health Steps case managers see "lots of children with lots of dental issues." TR 75, line 7. But as Ms. Bruch admitted, PWI data do not include class members in need of case management because of dental problems. TR 401, line 8 to 402, line 15.
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management have health problems that are more chronic in nature or are in poorer health than those who need PWI case management. TR 403, line 21 -404, line 15; see also P.Ex. C-21. Therefore, the need for PWI case management, which offers a different array of services addressing the health needs of a different population, is not, perhaps, the best starting point for
measuring the need for Texas Health Steps case management. In addition, the different case management programs are not mutually exclusive. Class
members may need and be entitled to Texas Health Steps case management even if they also use other forms of case management. 147 Other forms of case management may not be as comprehensive as Texas Health Steps case management. TR 81, lines 8-21. 148 While defendants' regulations prohibit duplication of case management services, P .Ex. C-1, § 33. 504(a), they do not prohibit receipt of more than one form of case management if there is no duplication. This reasoning cuts against defendants' decision to reduce their 7% estimate (already questionable due to their reliance on PWI data) to 5 or 6% based on class members' access to alternative forms of
case management.
147For example, class members younger than three years may qualify for ECI case management and Texas Health Steps case management. TR 381, line 22 to 382, line 1. Class members with mental health or mental retardation diagnoses may seek case management through the Mental Health/Mental Retardation agency, but they may also seek Texas Health Steps case management. TR 383, lines 10-20. Also, some class members with mental health or mental retardation diagnoses may not be able to get assistance from MHMR because of backlogs. TR 383, line 21 to 384, line 1.
148For example, class member G. V. receives case management through the Commission on the Blind. The Commission case manager "only addresses the visual need issues, such as bringing G. toys to address her visual impairment, and she does not contact [the] mother on a regular basis." Since G. is a medically complex child, she also needed Texas Health Steps case management. P.Ex. C-21; see also TR 393, line 20 to 394, line 3.
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Utilization
Even assuming that defendants' reasoning is correct, and that they have properly calculated that only about 90,000 to 107,000 class members need case management, by defendants' own estimates, at least 30,000 class members still have unmet case management needs. 149 See also TR 406, line 13 to 407, line 5. Since the means by which defendants arrived at these estimates lacks reliability, the actual need for case management may well exceed these estimates.
There is abundant evidence that members' use of Texas Health Steps case management is startlingly lower than the population's true need. From the program's start, in January of 1998, through January of2000, defendants provided fewer than 33,000 Texas Health Steps case management services. 150 TR 369, lines 7-21; D.Ex. D-9; see also D.Ex. D-25. Only 0.3% of all Texas class members aged 1 to 20 used Texas Health Steps case management in the first four months of state fiscal year 2000. 151 TR 421, lines 13-9, Case Management Utilization Report, P.Ex. C-20. This is obviously a much smaller group than need case management, even under defendants' conservative estimates. Furthermore, in more than 120 counties, no class members at all used Texas Health Steps case management in the first four months of fiscal year 2000. P.Ex. C-20.
149Texas Health Steps case managers assisted only 2,994 class members in fiscal year 1999. P.Ex. C-25.
150A service is a single contact between a case manager and a family, for example, an assessment or a follow-up phone call.
151Defendants excluded infants because they are not eligible for Texas Health Steps case management. TR 417, lines 7-17.
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As noted above, statewide, there are 1,306,455 class members over the age of one year statewide. Only 4,353- roughly 0.3%- of them received Texas Health Steps case management. TR 421, lines 13-19. The regional data tells an even more deplorable story of a service almost completely inaccessible to class members. In Hale County, where there were 3,820 class members over the age of one year, not one received Texas Health Steps case management during the first four months of fiscal year 2000. TR 416, line 13 to 417, line 5. In Dallas County, which has 100,012 class members over the age of one, only forty-eight received Texas Health Steps case management. TR 417, line 21 to 418, line 1. 152 In Region 8, which has the highest percentage of class members who use Texas Health Steps case management, only about 1% of class members use Texas Health Steps case management. TR 419, lines 5 -22; see also TR 88, lines 19-21. And in Region 11, the South Texas region, which is very poor, only 0.2% of class members receive Texas Health Steps case management. TR 421, lines 3-12.
Defendants respond that the gap between the estimated population who need case management and those who receive it can be explained by several factors. First, some class members who need the service may choose not to request it. They may not want case management, may have their management needs met by family or friends, or may receive "targeted" case management from another source, such as the Department ofMental Health and Mental Retardation, Commission for the Blind and Visually Impaired, Texas Department of Health, or Early Childhood Intervention Program. D.Ex. D-6. However, several of these forms of case management address distinct kinds of medical needs. Moreover, the receipt of case
152 Ms. Tillman commented that utilization in Dallas County is "considerably low. It's terrible." TR 89, lines 1-9..
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management from another source does not preclude class members from being eligible for Texas Health Steps medical case management where medically necessary.
Defendants also emphasize that there is no waiting list for Texas Health Steps Medical Case Management services, and that plaintiffs have identified no class members who, after requesting the service, were not referred to case management providers. Defendants argue that they provide sufficient case management in every county or cluster of counties because there is no waiting list for Texas Health Steps case management assistance. Ms. Bruch stated that "to our knowledge there has not been a child present that has not gotten connected to case management." TR 373, lines 13-5; see also TR 407, lines 10-2, TR 437, lines 2-7, D.Ex. D-14. This argument appears to rely on the "request" language at 42 § 1396a(a)(43)(B). However, the court dispensed with this defense in Section II ofthis memorandum opinion. That is, under 42 § 1396a(a)(43)(A), defendants are obligated to inform eligible participants about the services to which they are entitled. Class members cannot be expected to make requests for services where defendants have failed to make them aware of such services. 153
Sufficient Staffing Plaintiffs argue, next, that defendants have not recruited a sufficient supply of case managers to meet class members' needs, in violation of the requirement that "sufficient case management" be made "available."~ 264. Multiple witnesses testified to the shortage of case managers across the state. TR 53, lines 9-12. 154
153A discussion of defendants' failure to inform appears in Section I(B). 154Ms. Tillman testified that there are few Texas Health Steps case managers in Bexar County, TR 82, lines 23-25, and that ofthose few, several had recently assumed inactive status and no longer saw clients. TR 87, lines 4-9. In addition, Ms. McHan testified that sufficient case
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The statistics presented at the hearing support the opinions of these witnesses. At the end of 1999, approved Texas Health Steps case managers could serve 16,707 class members. But, of the 162 approved case managers, m 41 were inactive. Thus, at the end of 1999, the actual capacity of defendants' active, enrolled Texas Health Steps case managers was only 13,809. TR 408, line 9 to 410, line 4; P.Ex. C-20. This low capacity is not sufficient to meet even defendants' estimate of class members' need for this service.
The Safety Net No private Texas Health Steps case managers are enrolled in about 130 of Texas' 254 counties. TR 412, lines 8- 22; P. Ex. C-20, D.Ex. D-15. Instead, TDH social workers are assigned to these counties; in some counties, only one social worker is assigned. TR 413, lines 510. Two major problems arise when no privately-enrolled case managers serve an area. First, class members have less choice among case managers. TR 85, lines 9-13. This is especially true in the many counties in which only one privately-enrolled Texas Health Steps case manager
management is not available for low income families in Abilene, San Angelo, and the surrounding area. She noted that even though MHMR and ECI case management exists in the area, case management is not sufficiently available "because those particular case management programs are only for a certain group of people." TR 63, lines 11-7. Melinda Metterauer testified that the Texas Health Steps case management provider base is not adequate. TR 869, line 4 to 870, line 3. She based her opinion, in part, on her knowledge of class member D.H 's experience in November of 1999, of having not obtained service despite having called five case managers. P.Ex. C-21. Ms. Mettauer heads Maximus' Texas Health Steps outreach and informing project. Defendants have contracted with Maximus to provide outreach to class members in several regions ofTexas. TR 857, lines 1-18. Maximus is supposed to make special efforts to inform class members about Texas Health Steps case management. TR 372, lines 2-8.
155 As ofthe week ofthe hearing, there were 170 approved Texas Health Steps case managers. TR 370, lines 16-9.
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participates in the program. P.Ex. C-20. Class members' ability to choose their own case managers, who form intimate relationships with class members and their families, is important to the success of the service. TR 413, line 20 to 414, line 1 (Testimony ofMs. Bruch). Second, when no privately enrolled case managers serve an area, Texas Department ofHealth social workers are supposed to assist class members as case managers. 156 TR 400, lines 7-13. However, these Texas Health Steps case managers are available only on a limited basis in those counties. 157

TR 125, lines 5-8. TDH social workers are overwhelmed in their capacities as "safety net" case managers.
For example, TDH social workers in Regions 2/3 and 9/10 have caseloads of about 500 to 600 clients. 158 They work in several different programs. In contrast, a full-time case manager at the Parent Case Management Program (PCM) handles twenty-five to fifty children. TR 48, line 23 to

49, line 2. (Testimony ofMs. McHan).

Recruitment

Defendants' low reimbursement rates for Texas Health Steps case management contribute to the shortage of case managers. 159 According to a 1998 internal TDH memo, the reimbursement

156 TDH employs about 100 social work staff in the regions. TR 374, lines 7-10.
157Ms. Bruch testified that TDH social workers are assigned to several different programs. Thus, it is not common for a social worker to be assigned only to Texas Health Steps case management. TR 441, lines 1-10.
158Ms. McHan testified that such a load is "definitely ... too much ... to handle as a social worker." TR 51, line 16 to 53, line 8.
15~efendants pay Texas Health Steps case managers $54.58 for case management assessments and face-to-face visits. TR 373, lines 10-3, P.Ex. C-24. They pay $18.00 for phone contacts. P.Ex. C-24. Defendants apparently based the reimbursement rates for Texas Health Steps case management on reimbursement for other forms of case management developed many
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rates for Texas Health Steps case management are "woefully inadequate in comparison" with
other state agencies' payment rates for their case management services. P.Ex. C-21. This
evidence is consistent with the fact that PCM cannot afford to hire staff qualified to provide Texas
Health Steps case management for the reimbursement that defendants pay. TR 54, line 18 to 55,
line 7. (Testimony ofMs. McHan). The rural nature ofPCM's practice- and of many potential
providers of case management - exacerbates the problem, because such providers "may be
sending staff out to drive several hours, meet with a family for several hours, [and] drive back for several hours, for $54."160 TR 55, lines 5-7.
These low reimbursement rates have a tangible effect on enrollment and withdrawal from the case management program. 161 In Bexar County, Texas Health Steps case managers are taking
inactive status primarily because they cannot stay in business given the current low rates of
reimbursement.162 TR 87, lines 4-17. Potential case managers do not enroll with Texas Health
years prior to the start-up of the Texas Health Steps case management program. TR 425, line 7 to 426, line 4. In addition, the reimbursement rates have not changed very much over time. TR 436, lines 18-20.
160According to the June 1999 comments of the Smith County Public Health District's (East Texas) coordinator of case management, "An agency providing Texas Health Steps Medical Case Management would have a difficult time maintaining a case manager with the current reimbursement schedule and pay for the case manager's salary, travel, FICA, health/sick/and vacation benefits and the cost of office support and supplies." His recommendation was to increase the reimbursement rates to ensure the viability of the program. P.Ex. C-21.
161Defense witness Ms. Bruch confirmed that defendants' low reimbursement rates discourage the enrollment of Texas Health Steps case managers. The low reimbursement rate is "one ofthe top deterrents" cited by providers and potential providers. TR 423, lines 14-21. Defendants' survey of Texas Health Steps case managers also reports providers' complaints about low levels of reimbursement. P.Ex. C-20 at 8.
162For example, in October of 1999, provider organization "ASAP" wrote that their program's Board ofDirectors were considering phasing out case management because the low
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Steps case management because the low rates make it extremely difficult to pay the salaries required to hire needed social workers and nurses with professional experience. TR 91, line 16 to 92, line 1.163
One of the reasons for the failure of reimbursement rates to meet providers' costs appears to be that the cost of conducting home visits is not reimbursed. Instead, defendants pay Texas Health Steps case managers a flat fee of $54.58 for initial, comprehensive "assessments." TR 424, lines 13-15. But $54.58 does not begin to cover the cost of a home visit in many parts of the state. P.Ex. C-21; TR 423, line 25 to 424, line 19; TR 430, lines 1-6. For example, for an assessment to be comprehensive, it must be done in the client's home. TR 430, lines 7-10. Home visits are more comfortable for the client and make it easier for the case manager to establish a rapport and to receive an accurate picture of the client's needs. TR 430, lines 11-16. Ifthe family lives in substandard housing, the case manager can assess the level ofrisk that the home itself imposes. TR 430, lines 17-21. It generally takes about one to three hours to do an initial, comprehensive Texas Health Steps case management assessment. TR 423, line 25 to 424, line 12.
rates did not cover their costs. P.Ex. C-21. 163 Ms. Singleton, for example, testified that Agape Clinics would like to become a Texas
Health Steps case manager. TR 216, lines 4-9. Her reasons for not applying related solely to "[t]he financial aspect of whether or not what is expected can be done for the fees that are established, and not knowing what the time frame on reimbursement would be." TR 210, line 20 to 211, line 7. Agape Clinics are located in Dallas and Tarrant Counties, in Region 3. TR 157, lines 5-11. In those two counties, there are 155,401 class members over the age of one year. In the first four months of fiscal year 2000, only 560 (.3%) ofthem received Texas Health Steps case management. P.Ex. C-20. Similarly, Page One Healthcare Solutions, Inc., ofDripping Springs wrote in January of 1999 that the company "was quite interested in working with your agency providing case management for the children of Central Texas" but that "the reimbursement rates were such that the equation simply was not balance-able." P.Ex. C-21.
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Although defendants originally based their Texas Health Steps case management payment rates on other programs' payment structure, Texas Health Steps case managers are not reimbursed for certain services for which case managers in other programs receive reimbursement. For example, unlike PWI case managers, Texas Health Steps case managers are not paid for initial intake sessions. 164 TR 426, line 25 to 426, line 15; P.Ex. C-23. This continuing disparity165 makes it extremely difficult to attract Texas Health Steps case managers. P.Ex. C-21; see also TR 428, line 24 to 429, line 16.
In addition to low rates of reimbursement, the cumbersome application process itself appears to inhibit many case managers from participating in Texas Health Steps case management.166 For example, in October of 1999, a case management provider applicant still had not received a provider number even though defendants had approved the applicant in December of 1998. P.Ex. C-21. Defendants' internal memos demonstrate their knowledge ofthis paperwork problem. P.Ex. C-21; see also TR 431, lines 15-18. Payment delays also cause problems. One witness testified that 10-30% ofCORE's claims are not paid, TR 92, lines 2-7,
164Case managers and coalitions of case managers from various parts of the state have complained to defendants that the Texas Health Steps case management payment rates are too low. TR 426, line 7 to 428, line 23. For example, the Hidalgo-Starr Counties Case Management Coalition and the Cameron-Willacy Counties Case Management Coalition, both from South Texas, have asked defendants to reimburse Texas Health Steps case managers for completing initial intake forms. P.Ex. C-21. As stated above, Defendants reimburse PWI case managers for initial intake interviews. TR 426, line 25 to 427, line 15.
165 See D.Ex. D-14. Defendants increased the reimbursement for face-to-face follow-up visits from $18.00 to $54.58. See also D.Ex. D-14.
166 At the time of the hearing, defendants were in the process of revising their application form to simplify it. TR 375, lines 5-13; D.Ex. D-18.
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which forces her staff to tap into personal funds to meet payroll costs.167 TR 93, lines 4-9 (Testimony of Ms. Tillman). Another testified that payment delays create significant cash flow problems for Texas Health Steps case managers because many case management organizations are small businesses. TR 430, line 22 to 431, line 14 (Testimony ofMs. Bruch).
Finally, Texas Health Steps case management is underutilized because class members do not know that the service is available. TR 90, lines 8-10. Vital referral sources, such as healthcare providers, school staff, and employees of community agencies, frequently do not know about Texas Health Steps case management. 168 TR 90, lines 10-21. However, Texas Health Steps case management is very well-received by referral sources once they are informed about the program. CORE "immediately began getting referrals" once referral sources learned of its services. TR 90, line 22 to 91, line 8. C. Violations of Decree
Defendants point to the number of medical case management provider recruitment activities that they have conducted. TR 357, line 11 to 360, line 4; TR 367, line 12 to 368, line 3; D.Ex. D-7, D-12, D-13, D-24. They note the steady progress made recently in recruiting providers, TR 369, line 23 to 370, line 12; D.Ex. D-10, and point to a recent increase of the reimbursement rate for face-to-face follow-up activities. D.Ex. D-10, D-14. They report that
167Ms. Tillman also testified that because of the low reimbursement rates, CORE currently cannot afford to pay three of its owners who work full time at CORE, without whom CORE could not function. TR 93, line 10 to 94, line 17.
168Defense witness Margaret Bruch testified that one reason that Texas Health Steps case management utilization is so low is that families do not know about the service. TR 422, lines 79. Also, she testified that many referral sources such as school nurses, school social workers, doctors, and dentists are still unaware of Texas Health Steps case management. TR 431, line 19 to 432, line 7, and therefore cannot refer class members to case managers. TR 432, lines 8-12.
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since January of 1998, the number of medical case management services provided has increased every month, rising from 5,000 services to over 30,000 services in January of2000. D.Ex. 9. Nevertheless, despite defendants' recruitment efforts, and despite the gradual increase in the number of approved case managers, there is still a serious shortage of Texas Health Steps case managers. 169
Based on the findings offact set out above in Section VI(B)(1) through VI(B)(S), defendants are found to be in violation of paragraphs 248 and 264 of the decree. The dramatic underutilization of the service of case management, coupled with a well-demonstrated need for the service, leads the court to conclude that defendants have failed to provide medical case management services to the plaintiff class. Plaintiffs have amply demonstrated defendants' failure to make case management available in every county or cluster of counties in the state.
16~efendants point to a comparative study that allegedly shows that Texas compares favorably to other states in providing case management services. Defendants surveyed several states about their case management efforts for children who have Medicaid. D.Ex. D-21, D.Ex. D-32. They found that fewer than one-half of the states provide four or more targeted case management programs. They also found that about one-half of the states provide EPSDT case management. TR 377, line 7- 378, line 19. Based on this survey, Ms. Bruch thinks that Texas compares "very favorably to other states." TR 378, lines 17-9. However, as noted earlier, the performance of other states, because they are not bound by the decree in this case, is not relevant to defendants' compliance. In short, the poor performance of other states relative to Texas does not excuse defendants' failure to comply with the decree. Furthermore, neither the number of case management programs offered by Texas, nor its decision to provide EPSDT case management is at issue in this case. Having opted to provide these services, defendants are bound by the requirements of federal law on which plaintiffs first based their claims, and in which the decree is grounded.
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VII. Issue Seven: Outcome Measures
A. Overview In an effort to "measure whether recipients receive the full range of services that they need
and are entitled to receive,"~ 288, the parties agreed to create "health outcome indicators." ~~ 286-297. The decree states that these indicators should be "chosen wisely'' by the parties and should be "diverse enough to gauge the health of the entire EPSDT population, not merely factions of the population."~ 289. The parties agreed to develop a list of health outcome indicators by September 1, 1995. ~ 293. On August 30, 1995, the parties submitted a Joint Notice Concerning Outcome Measures to the court ("Joint Notice").
The parties also agreed to create "target goals" for each indicator. ~ 294. Defendants agreed to report the "best available information on each health indicator annually, beginning on September 1, 1996 and continuing through 1999," through the use of a methodology approved by plaintiffs. ~ 295. Finally, defendants agreed to develop, by January of each year, corrective action plans to "address all matters within Defendants' control to improve results for each indicator" for which the target goal was not reached. ~ 296. The plans are to be presented for plaintiffs' suggestions, which may not be unreasonably rejected by defendants. Id. B. Findings of Fact Regarding Violations of Decree
Plaintiffs allege that defendants have failed to comply with their obligations under these paragraphs by failing to provide plaintiffs with outcome studies that meet the standards in both the decree and the Joint Notice, failing to obtain the consent of plaintiffs' counsel regarding three substitute outcome measures introduced by the defendants, failing to create adequate corrective
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action plans, and failing to abide by the deadlines in the decree. Each contention will be addressed in tum.
Joint Notice Measures Plaintiffs' complaints about defendants' outcome measures as required by the Joint Notice begin with the first indicator, Joint Notice Measure #1, which measures the rate of immunization among the plaintiff class. P.Ex. OM-9 at 12. Plaintiffs complain, first, that defendants' data is not compiled annually, but is instead provided biannually. Defendants respond that immunization surveys take significant time to complete, and that the opportunity to evaluate new intervention strategies designed to improve immunization rates has required at least a two-year cycle. Nevertheless, defendants agreed to the term "annually." Moreover, the immunization indicator appears in the express language of the decree at paragraph 290. Therefore, when defendants agreed to the annual provision ofthe best available data on each indicator, they specifically included this indicator. For these reasons, it is found that defendants' biannual compilation of immunization data violates paragraph 295. In addition, plaintiffs complain that defendants' 1998 immunization study sample size was too small to yield adequate data about racial and ethnic subgroups, as required by Joint Notice Measure #1. Defendants have not furnished any reliable evidence that their 1998 data was the "best available," as required by paragraph 295. They have not explained, to the satisfaction of the court, why they were unable to create the requisite sample sizes that would have yielded the desired racial data. It is therefore concluded that defendants have not furnished plaintiffs with the
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best available data on this indicator for the year 1998. Thus, in 1998/70 defendants failed to comply with paragraph 295. 171
Plaintiffs also object to the exclusion from study of hundreds of thousands of class members who are enrolled in managed care. D.Ex. D-62.172 To evaluate this objection, the court
must examine paragraph 295, which contemplates an ongoing exchange between the parties
concerning the specific methodology to be used to report on each indicator:
295. Defendants will report the best available information on each health indicator annually, beginning on September 1, 1996 and continuing through 1999. The EPSDT program will arrange for studies to evaluate the health of the EPSDT population, including each health outcome indicator. Defendants will present their proposed methodology for Plaintiffs' approval by April1, 1996. Plaintiffs will not unreasonably withhold approval. If they approve, Plaintiffs may make suggestions. Defendants may accept or reject the suggestions.
This language is interpreted to mean that defendants' failure to report on an indicator or
specifically enumerated sub-indicator - such as their failure to provide any data by race as required by Joint Notice Measures #1 and #4, above- will nearly always173 constitute a failure to
provide the "best available information." However, a disagreement over methodology must be
treated differently. The court must decide whether defendants have provided the "best available
1700efendants note that immunization data by race and ethnicity for the years 1994 and 1996 were reported. P.Ex. OM-9 at 12. In addition, defendants plan to survey and provide results by race and ethnicity for the years 1999, 2000, and 2002. D.Ex. D-71, D-72.
171Similarly, defendants have not provided plaintiffs with the racial and ethnic data required by Joint Measure #4 for any year, again in violation of paragraph 295.
172 Mr. Blanton admitted that for some studies, defendants do not have data about class members in managed care. TR 519, lines 13-17.
173ln the court's view, it would be difficult for defendants to argue that the failure to
provide any data on an indicator or sub-indicator constitutes the provision of the "best available
information," since terms of paragraph 295 dictate that defendants themselves are responsible for generating the information through studies. Thus, defendants are under an obligation to conduct the studies that will give them the "best available information" for each indicator.
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information" or whether plaintiffs have withheld their approval of defendants' methodological decisions "unreasonably." The phrase "best available information" is held to be ambiguous. The court must therefore determine, as best it can, what the parties meant by the phrase with regard to each methodological decision challenged by plaintiffs.
Have defendants provided the "best available information" regarding the indicators for which they have excluded managed care data, or have plaintiffs withheld their approval of the exclusion "unreasonably"? Paragraph 191 provides a clear answer: defendants must assure that "information for outcomes research as needed" is collected from "each managed care organization." ~ 191. In light of paragraph 191, the phrase "best available information" is not ambiguous in relation to managed care data. Therefore, in failing to collect data on managed care enrollees, defendants violated both paragraph 191 and paragraph 295.
Next, with regard to Joint Notice Measure #5, plaintiffs complain that defendants have limited their study of lead poisoning in the class to a study of class members whose blood samples have been submitted to the Texas Department ofHealth laboratory for testing. Does this limitation render defendants' information less than the "best available"? No other provisions related to lead-poisoning in the decree can guide the court in answering this question. Paragraph 289 at first glance appears promising, with its requirement that indicators be "diverse enough to gauge the health of the entire EPSDT population, not merely factions of the population."~ 289. This paragraph speaks directly to the selection of indicators, not to methodologies used in generating the best available information about those indicators, but it could be used by the court to give meaning to the ambiguous phrase "best available." However, paragraph 289 appears to be aimed at the exclusion of particular groups (such as young females or teenage males) from
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consideration. There is no evidence that defendants' use of the blood registry data unduly excludes a particular "faction" from study. Thus, while defendants are strongly encouraged to expand their studies to include class members whose blood is not currently reported in the registry, they will not be held in violation of the decree for relying solely upon the blood registry.
Plaintiffs also note that although defendants are obligated under Joint Notice Measure #5 to re-evaluate at the age of24 months the blood lead levels ofEPSDT children who had high lead levels at 12 months, defendants fail to do so because their "registry cannot distinguish a child whose second test was normal from a child who never received a second test." P.Ex. OM-9 at 9; TR 527, line 11 to 528, line 14. The court agrees that, because they have failed to report an enumerated indicator, defendants have failed to provide the "best available" data regarding that indicator. Defendants insist that they cannot provide the re-evaluation data because ofthe configuration oftheir registry. Nevertheless, defendants have plainly failed to meet their obligation to "arrange for studies to evaluate the health of the EPSDT population, including each health outcome indicator."~ 295. 174
Plaintiffs' complaints concerning Joint Notice Measures #8 and #9 will be treated similarly. In both instances, plaintiffs regard defendants' decision to restrict data collection to certain subsets ofthe population as in violation of paragraph 295. However, it is found that defendants' decision to proceed with methodologies based on Women's Infants' and Children's Program ("WIC'') data (#8) and on data from the previously mentioned blood registry (#9), do
174ln light of defendant's obligation to provide the re-evaluation data, and their current inability to report on this indicator through the use of registry data, it appears that the registrybased methodology- held to be sufficient for part of Joint Notice Measure #5 - does not currently provide defendants with sufficient data to be in full compliance with the reporting requirements for all sub-parts ofthe indicator.
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not violate paragraph 295, because defendants have demonstrated the data for each indicator to be the best available. The Joint Notice itself authorizes TDH, not the plaintiffs, to "establish the
methodology" for these measures. See Joint Notice at 3. Plaintiffs have proffered no evidence
that defendants' reported data is not the "best available."175 Finally, plaintiffs correctly assert that defendants have failed to provide the best available
data for Joint Notice Measures 10 and 11. No data has been provided regarding Measure 10, which deals with the mental health of class members. Regarding Measure 11, which deals with asthma, the language of the Joint Notice clearly requires the reporting of the rate of hospitalization or the number of hospitalizations by year, not, as defendants maintain, the average length of stay for a patient hospitalized. It is found that the "best available" data has not been provided for either of these Joint Notice Measures.
Unilateral Substitution ofMeasures The parties agree that three of the originally agreed-upon outcome measures cannot reasonably be studied by defendants. After discovering this, defendants apparently unilaterally substituted those measures with three new measures, without securing the plaintiffs' agreement as required by paragraphs 289 and 293. The substitutions, plaintiffs argue, caused defendants' outcome measurements to be unduly focused on the health of infant/toddler and pregnant teenage class members. They note that there is only one indicator that gauges the health of teenagers who are not pregnant. Hence, argue plaintiffs, defendants' indicators are not "diverse enough to measure the health of the entire EPSDT population, not merely factions of the population."~ 289.
175Such evidence might, for example, have taken the form of an illustration ofhow a broader class member base might have been studied.
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The court need not evaluate the "diversity"ofthe various outcome measures selected by the parties, for the decree mandates that the parties select such indicators "together."~ 289. Thus, both parties must "agree" to "change, add, or delete indicators." ~ 293. It is therefore held that defendants may not fulfill their obligations under the outcome measurements portions of the decree through the study of variables that were not agreed upon by both parties to this action.
Co"ective Action Plans Having received defendants' 1999 target goals and corrective action plans, plaintiffs have formulated their commentary and suggestions pursuant to paragraph 296. P.Ex. OM-19, OM-21. Plaintiffs' primary complaint with many of defendants' proposed plans is that they "do not aim high enough." Plaintiffs' Prehearing Motion to Enforce the Consent Decree. However, the decree gives the court no authority to evaluate the substance of defendants' target goals and corrective action plans. Plaintiffs are correct in noting that under paragraph 294, "target goals" are to be set together by the parties, and may not be set unilaterally by defendants. Moreover, under paragraph 296, defendants may not "unreasonably reject" plaintiffs' suggestions in response to defendants' proposed plans. However, no evidence that defendants have unreasonably rejected plaintiffs' suggestions was presented to the court. Both parties should recognize that the court will not intervene in the ongoing negotiations between the parties. That these processes were built into the mechanisms of the decree reflects the reality that the parties themselves are in the best position to reach an agreement regarding issues of methodology, and to set and revise target goals.
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Timing Defendants failed to provide their 1999 corrective action plan in January, as required by paragraph 296. More importantly, defendants have provided only one corrective action plan, although the decree mandates that they were to have been provided annually from 1996 through 1999. Defendants have also fallen significantly behind on their annual reports ofthe outcome data, also required annually, upon which these corrective action plans are to be based. Defendants' tardiness in preparing their first corrective action plan means that defendants cannot possibly consider plaintiffs' comments and then revise their plan in time to implement it in 1999, as envisioned by the annual corrective action plan process. As noted above, reports for some agreed-upon indicators have not been completed, while reports for others are late or incomplete. 176 Therefore, defendants will be held in violation of paragraph 295 for their untimely furnishing of outcome data to plaintiffs, and in violation of paragraph 296 for their failure to complete annual corrective action plans based on the incomplete data that they possessed. However, it is also noted that defendants have voluntarily taken steps to institutionalize outcomes measurement in the Texas Health Steps Program, and have offered to extend reporting outcome measures beyond the time frames stated in the decree. TR 506, lines
176 Defendants maintain that these delays were exacerbated by plaintiffs' having limited communication between their epidemiological expert and defendants. D.Ex. D-71; see also TR 506, lines 12-7. Plaintiffs respond that epidemiologists normally prefer to review written proposals for research studies to evaluate them fully, and that defendants have failed to provide any written proposals for their expert to review despite repeated requests. The court is in agreement with the plaintiffs that it is unreasonable for defendants to demand that plaintiffs commit the time oftheir expert, Paul Newacheck, without first providing requested written materials.
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21-24; D.Ex. 71. These ongoing efforts to accommodate the needs of the plaintiff class will be reflected in the order of enforcement issued pursuant to this memorandum opinion.
VIII. Issue Eight: Training for Healthcare Providers
A. Findings of Fact "To adequately serve recipients, providers must understand how EPSDT works. They
must also understand EPSDT recipients' needs."~ 104.177 The decree targets for improvement defendants' "educational programs for professionals, so that healthcare providers [can] understand how Medicaid and EPSDT work." Fairness Order at 31.
The evidence demonstrates that many healthcare providers who serve class members do not understand their cultural and economic situations, and that without this understanding, they cannot properly assist class members.178 Defendants' expert Mr. Millwee agreed that training
177The importance of provider training is discussed in more detail under Section IV(E), which deals with the training of providers within the managed care system.
178For example, one witness testified that [A]s a result of a lack ofunderstanding on the part of the staff and the provider, [there] are very judgmental attitudes about unkept appointments, about not following through on recommendations for brushing or caring for the children. . . . [T]hose sorts of attitudes ... by the providers act as a barrier to these families because they don't want to be treated that way. They don't want to have their children treated that way. [I]fwe could improve the understanding on the part of the providers about the patient population, we could improve the atmosphere in the offices, . . . and make it a more welcome environment and make families more willing to be there to receive care. TR 297, line 22 to 299, line 8. (Testimony ofDr. Seale). Another witness often hears from physicians and clinics the myth that Medicaid patients don't care enough to keep their appointments or just blew it
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about cultural sensitivity is one of the most important components of training for professionals who work with class members. TR 937, line 24 to 938, line 6. See also P.Ex. -23. Class members' parents also testified at length about specific instances in which healthcare providers had treated them harshly. In addition, defendants have received complaints about healthcare providers' improper treatment of class members. P.Ex. CH-24, CH-2.
The evidence also reveals that it is extremely important for healthcare providers to be trained to work with class members and to understand how the Medicaid program functions:
It's very important because they may be the primary contact that the family has... . [providers and staff] need to know about Medicaid, about the other services that Medicaid offers. Oftentimes from our experience all the physician's office [knows] is, is Medicaid going to cover the visit? It would be most helpful if there was staff in the office ... who could advise the family. TR 43, line 14 to 44, line 2 (Testimony ofMs. McHan). Class members do not receive services when providers do not know that they exist, and have difficulty getting to a specialist when referring physicians do not know that transportation assistance is an option. 179 TR 45, lines 19-
22.
off. ... [I]fthey had a better understanding of what it's like for families to live under those circumstances and what sort ofbarriers there are that might prevent them from coming, number one, their attitude would be different and, number two, they would probably have more kept appointments in their office.
TR 44, lines 12-21 (Testimony ofMs. McHan).
179plaintiffs provided other examples of providers' misunderstanding ofthe scope ofTexas Health Steps Coverage. One such example arose in Region 1, in the Panhandle. A pediatric dentist required a father to pay an emergency fee before treating a class member. P.Ex. M-20; see also P.Ex. A-8 at 8. The six-year-old class member had to travel from Amarillo to Lubbock for corrective treatment because the local dentist did not understand that Medicaid would by law reimburse him in full.
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B. Findings of Fact Regarding Violations of Decree The decree orders, in clear and mandatory language, the creation of various types of
training by defendants. Nonetheless, defendants have yet to complete even their Requests for Proposals ("RFPs") that would enable them to contract with training groups for training at professional schools, ~ 107,180 EPSDT training associated with other "high caliber" training, ~ 108,181 training about mental health services, ~~ 112-14,182 training about new issues, ~ 117,183 training about cultural sensitivities and the realities ofEPSDT recipients' lives,~~ 118-20,184 and
180paragraph 107 provides that "[d]efendants will provide information and facilitate ongoing training about Medicaid and EPSDT at all relevant professional schools in Texas. 'Relevant professional schools' include all schools that train healthcare providers who could serve EPSDT recipients...."
181Paragraph 108 provides that "[d]efendants will make staff available to participate in ongoing training in conjunction with appropriate professional training. 'Appropriate professional training' means training about issues that are relevant to the provision of services to EPSDT recipients, such as how to conduct a medical checkup for a teenager..."
182Paragraph 112 provides that "[d]efendants will facilitate training for professional about the importance of and how to conduct mental health assessments for indigent children and youth. .
"
183Paragraph 117 provides that "[a]s time goes by, new clinical issues will arise that are important to the provision of care to EPSDT recipients. Defendants will facilitate training in those areas."
184Paragraph 120 provides that "[d]efendants will develop training modules designed to be included in other training programs about the realities ofEPSDT recipients' lives to attempt to improve providers' attitudes toward recipients. These training materials will be provided to professional schools."
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ongoing training for pharmacists. ~~ 124-130. 185 In other words, defendants are still in the beginning stages of projects that should have been fully implemented long ago.
Perhaps anticipating this court's finding, defendants developed an RFP for healthcare provider training in December of 1999, and are awaiting plaintiffs' responses. D.Ex. D-105. The Director of Texas Health Steps testified that this RFP would be published in the Texas Register within two months of the hearing, and that a contract would likely be awarded within six months. TR 923, lines 22-25.186 While defendants' recent efforts to procure provider training services are applauded by the court, they do not change this court's finding that because the training has not been adequately provided, defendants are in violation of the training provisions of the decree. 187 Therefore, it is found that defendants are in clear violation of the above-cited training provisions ofthe decree.
185Paragraph 129 states that "[b]y January 31, 1996, Defendants will implement an initiative to effectively inform pharmacists about EPSDT, and in particular about EPSDT's coverage of items found in pharmacies...." Paragraph 130 mandates that "[b]y July 31, 1996, Defendants will conduct a professional an valid evaluation of pharmacists' knowledge ofEPSDT coverage of items commonly found in pharmacies. They will report the results of the evaluation to Plaintiffs by September 1, 1996...."
186Mr. Milwee also testified that some of the provisions in the RFP go beyond the requirements of the decree, including a video program that will be used to recruit and educate providers. TR 923, lines 15-18. Defendants' continuing efforts, in some areas, to go above and beyond the requirements of the decree have not gone unnoticed by the court. It is sincerely hoped that these extra efforts will benefit the children whom Texas Health Steps was designed to serve.
187It became apparent at the hearing that defendants have, in fact, provided some degree of training to nurses. TR 183, lines 11-15.
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PART TWO: DEFENDANTS' OBJECTIONS TO ENFORCEMENT OF DECREE
As is described in Part One, defendants opposed virtually all of plaintiffs' proposed findings of fact. Defendants also argued, in the alternative, that certain provisions of the decree are unenforceable against them, even were the court to find violations of those provisions. Defendants challenge this court's authority to enforce the decree on two bases. First, they argue that some of the rights on which decree paragraphs are based are not enforceable through 42 U.S.C. § 1983.11!8 Second, they argue that this court may not enforce certain provisions ofthe decree consistent with the protection afforded state defendants by the Eleventh Amendment. Each objection will be considered in tum.
Issue 1: Enforcement of the Medicaid Statute
A. Law of the Case Before addressing the merits of defendants' first argument, the court pauses to note that
this is not the first time that the court has addressed the issue of the enforcement ofEPSDT provisions via § 1983 during the course of this litigation. In an order issued by this court on August 10, 1994, defendants' motion to dismiss was denied except as to the state agency defendants. In that order, defendants' arguments that the EPSDT provisions found at 42 U.S.C. §§ 1396a(a)(43) and 1396d(r) could not be enforced by plaintiffs in a§ 1983 action were
18842 U.S.C. § 1983 provides that "[E]very person who, under color of any statute, ordinance, regulation, custom or usage of any state . . . subjects, or causes to be subjected, citizens . . . to the depreivation of any rights, privileges or immunities secured by the Constitution and laws shall be liable to the party injured in an action at law...."
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explicitly rejected. Specifically, in that order, this court held those provisions to be clearly and unambiguously enforceable through§ 1983 under the Supreme Court's framework first set out in Wright v. City ofRoanoke Redev. & Hous. Auth., 479 U.S. 418 (1987), and further developed in Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498 (1990), and Suter v. Artist M, 503 U.S. 347 (1992).
Under the "law of the case" doctrine, a court should not reopen issues decided in earlier stages of same litigation. See, e.g., Agostini v. Felton, 521 U.S. 203, 236 (1997). However, because defendants re-urge their argument based on Supreme Court case law decided since 1994, the merits of defendant's objection will be considered in brief The discussion which follows disposes of defendant's more recent challenge while fortifying the court's prior holding that the above-cited provisions may be enforced by plaintiffs via § 1983. B. Supreme Court Jurisprudence on Enforceable Rights
The Supreme Court has held that § 1983 safeguards certain rights conferred by federal statutes. Maine v. Thiboutot, 448 U.S. 1 (1980). However, in order to seek redress through§ 1983, a plaintiff must assert the violation of a federal right, and not merely a violation of federal law. Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 106 (1989). Recently, the Supreme Court reiterated the test to determine when federal statutes confer rights that are actionable through 42 U.S.C. § 1983. Blessing v Freestone, 520 U.S. 329 (1997). Under that test, three distinct factors must be examined by a court when determining whether a particular statutory provision gives rise to a federal right. First, Congress must have intended that the provision in question benefit the plaintiff Wright, 479 U.S. at 430. Second, the right must not be so "vague and amorphous" that its enforcement would strain judicial competence. Id at 431-32.
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Third, the statute must unambiguously impose a binding obligation on the States. Wilder v.
Virginia Hosp. Ass'n, 496 U.S. 498, 510-11 (1990). 189
Once a plaintiff demonstrates that a federal statute creates an individual right, there is a
rebuttable presumption that the right is enforceable. However, the right will be unenforceable if
Congress "specifically foreclosed a remedy under§ 1983." Smith v. Robinson, 468 U.S. 992,
1005, n. 9 (1984). Congress may do so expressly, by forbidding recourse to § 1983 in the statute
itself, or impliedly, by creating a comprehensive enforcement scheme that is incompatible with
individual enforcement under§ 1983. Livadas v. Bradshaw, 512 U.S. 107, 133 (1994). 190
189The Supreme Court's decision in Suter v. Artist M, 503 U.S. 347 (1992), which followed Wilder but preceded Blessing, has produced much confusion and debate. The Fifth Circuit has refrained from deciding the impact of Suter on Wilder. Resident Council ofAllen Parkway Village v. United States Dep't ofHous. & Urban Dev., 980 F.2d 1043, 1051 (5th Cir. 1993). In Travelers Health Network v. Orleans Parish Sch. Bd, 842 F.Supp. 236, 240 (E.D.La.1994), the court followed the Seventh Circuit's approach in Procopio v. Johnson, 994 F.2d 325, 331, n. 9 (7th Cir.1993), by "proceeding with the two-step Wilder analysis and bearing in mind the additional considerations mandated by Suter." 842 F.Supp. at 240. See also Arkansas Medical Society, Inc. v. Reynolds, 6 F.3d 519, 525 (8th Cir.1993) ("synthesizing" Wilder and Suter ). This court will take the same course.
190 As was noted in this court's 1994 order, the Supreme Court analyzed a provision ofthe Medicaid Act, the same statute at issue in the instant action, in Wilder v. Virginia Hosp. Ass 'n, 496 U.S. 498 (1990). In Wilder, healthcare providers claimed that they had been deprived of their right, under 42 U.S.C. § 1396a(a)(13)(A), to Medicaid payment both "reasonable and adequate to meet the costs incurred by efficiently and economically operated facilities." The Court held the relevant provision of the Medicaid Act enforceable under§ 1983 because: a) the plaintiff healthcare providers were the intended beneficiaries of the provision at issue; b) the provision imposed a binding obligation on participating states to adopt reasonable and adequate rates; c) the statute set out factors which a state must consider in adopting its rates; and d) the administrative scheme at issue was not sufficiently comprehensive to demonstrate a congressional intent to preclude § 1983 relief
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C. The EPSDT Provisions of the Medicaid Act
The starting point for determining whether a statute creates an enforceable private right of
action is the statute itself. The Medicaid program is a cooperative program between the federal
and state governments, providing medical services to qualified recipients. State participation in
the Medicaid program is voluntary. If a state chooses to participate, however, it must comply
with the requirements outlined in the Medicaid subchapter of the Social Security Act. Wilder,
496 U.S. at 502; 42 U.S.C. § 1396a. A participating state must submit a plan for providing
medical services to qualified recipients, which is approved and partially subsidized by the federal
government. See 42 U.S.C. § 1396. The requirements that the state plan for medical assistance
must satisfy are provided in§ 1396a(a). In this case, plaintiffs seek to enforce provisions in a
decree based on rights set forth in the Early Periodic Screening, Diagnosis and Treatment sections
ofthe federal Medicaid Act; specifically, the provisions that mandate that a state's Medicaid plan
must provide for:
"informing all persons in the State who are under the age of 21 ... [and qualify for Medicaid] of the availability of early and periodic screening, diagnosis, and treatment services as described in [§ 1396d(r)(5)] and the need for age-appropriate immunizations against vaccine-preventable diseases" 42 U.S.C. § 1396a(a)(43)(A). "providing or arranging for the provision of such screening services in all cases where they are requested" 42 U.S.C. § 1396a(a)(43)(B). "arranging for (directly or through referral to appropriate agencies, organizations or individuals) corrective treatment the need for which is disclosed by such child health screening services" 42 U.S.C. § 1396a(a)(43)(C).
Plaintiffs also seek to enforce their rights to the following:
medical check ups according to a properly prescribed schedule and at other intervals when needed, "which shall at a minimum include (i) a comprehensive health and developmental history (including assessment of both physical and mental health development), (ii) a comprehensive unclothed physical exam, (iii) appropriate immunizations according to age and health history, (iv) laboratory tests (including lead blood level assessment appropriate for age and risk factors), and
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(v) health education (including anticipatory guidance)" 42 U.S.C. § 1396d(r)(l). dental services including check ups according to a properly prescribed schedule and treatment, "which shall at a minimum include relief of pain and infections, restoration of teeth, and maintenance of dental health" 42 U.S. C. § 1396d(r)(3). the full range ofhealthcare services allowed by the federal Medicaid statute, 42 U.S. C. § 1396d(r)(5), including but not limited to case management. 42 U.S. C. §§ 1396(a)(l9); 1396n(g)(2).
The Wilder/Blessing framework may be easily applied to these provisions. First, the
statutory sections are clearly intended to benefit plaintiffs and the class. "EPSDT ... is ... the nation's largest preventive health program for children." H. R. 3299, lOP' Cong. § 4213 (1989) (emphasis added). Congress also noted that as more children qualified for Medicaid because of federal expansions in the Medicaid program, "the EPSDT benefit will become even more important to the health status ofchildren in this country." /d. (emphasis added). Additionally,
the plain language of the statute demonstrates that Congress was attempting to increase
preventive healthcare services for minor Medicaid recipients. See 42 U.S. C. § 1396a(43). The second prong of the Wilder/Blessing test asks whether the language of the statute is
mandatory rather than precatory. Wilder, 496 U.S. at 512. In this case, the language is clearly mandatory: a state plan must provide for informing all eligible minors of the availability of the EPSDT services, provide for the providing or arranging of the services, and provide for the arranging for corrective treatment. 191 More concisely, state plans "must ... provide for"
191Suter v. ArtistM, 503 U.S. 347 (1992), contains language which might be interpreted to foreclose the enforceability of any statutory provision in a section of a law specifying the content of a state plan. On October 20, 1994, Congress attempted to resolve the confusion about the impact of Suter by amending the Social Security Act, which includes the Medicaid provisions at issue in this case. 42 U.S.C. § 1320a-2. The amendment provides that in an action brought to enforce a provision ofthe Social Security Act, such provision is not to be deemed unenforceable merely because of its inclusion in a section of the Act requiring a state plan or specifying the required contents of a State plan. Most courts have interpreted the amendment to restore the Wilder test pre-Suter. See Visiting Nurse Assoc. ofNorth Shore, Inc. v. Bullen, 93 F.3d 997, 1003, n. 5 (1st Cir.l996), ("Congress intended that [the amendment] serve to resurrect the
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informing all class members, 42 U.S.C. § 1396a(a)(43)(A); providing or arranging ofmedical and dental check ups with appropriate elements for all class members, 42 U.S. C. §§ 1396a(a)(43)(B), 1396d(r)(l)(medical check ups), 1396d(r)(3)(dental check ups); and arranging all required treatment allowed by the federal Medicaid Act, 42 U.S.C. §§ 1396a(a)(43)(C), 1396d(r)(5),
including case management. 42 U.S.C. §§ 1396(a)(19), 1396n(g)(2). Third, the statute is clear and concrete enough for judicial interpretation and enforcement.
The EPSDT provisions are not, as defendants argue, vague or amorphous. Defendants base their argument on Blessing, in which plaintiffs sought to enforce a federal child support enforcement statute. 520 U.S. at 333-35. The Court held that relief under§ 1983 was not available, first, because plaintiffs had failed to articulate precisely which rights they sought to enforce: their efforts to enforce the entire child support scheme painted with "too broad a brush." !d. at 342. Unlike the plaintiffs in Blessing, plaintiffs in this case have isolated provisions within the Medicaid Act which are quite clear and concrete. Second, the Court in Blessing was reluctant to enforce a statute which required the Secretary ofHealth and Human Services to "look to the aggregate
Wilder test, with no Suter overlay"); Stanberry v. Sherman, 75 F.3d 581, 583-584 (lOth Cir.1996) ("Basically, the Congress disavowed Suter's approach.... It also reaffirmed the approach taken in the Supreme Court decisions prior to Suter.").
More broadly, the amendment overrules the general theory in Suter that the only private right of action available under a statute requiring a state plan is an action against the state for not having that plan. Instead, the Wilder test must be applied to the question of whether or not the particulars of a state plan can be enforced by its intended beneficiaries. See, e.g., Doe v. Chiles, 136 F.3d 709, (11th Cir. 1998). In Doe, the Eleventh Circuit held that 42 U.S.C. § 1396a(a)(8), which states that "[a] State plan for medical assistance must ... provide that all individuals wishing to make application for medical assistance under the plan shall have the opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible individuals," confers a right enforceable under§ 1983 to Medicaid eligible participants to be served with "reasonable promptness." 136 F.3d at 719.
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services provided by the state, not to whether the needs of any particular person have been satisfied," holding instead that a federal provision requiring that states be in "substantial compliance" with the federal child support law only tangentially benefitted the plaintiffs. 520 U.S. at 343. This case, therefore, may be distinguished from Blessing in this key respect. Plaintiffs do not seek to enforce a "yardstick" or provision requiring "substantial compliance." They seek to enforce decree provisions based on rights Congress has guaranteed to each and every Medicaid recipient under the age of21. 42 U.S.C. § 1396a(a)(43).
As defendants stress, the Blessing Court held that a sufficient staffing requirement could not be enforced via § 1983 because it gave no guidance as to what level of staffing would be sufficient. 502 U.S. at 345. However, contrary to defendants' characterization of the EPSDT provisions as "standardless promulgation," the provisions in fact go into great detail regarding the timing of specific services that must be provided. See 42 U.S.C. § 1396d(r). The EPSDT portions of the Medicaid Act are, therefore, clearly more specific than those at issue in Blessing, and certainly more definite than the "reasonable access" provision of the Medicaid Act held enforceable in Wilder.
Moreover, as described below, many courts have already found the statutory provisions at issue in this case to be enforceable via§ 1983. InBondv. Stanton, 655 F.2d 766, 767-79 (1981 )("Bond Ir'), 192 the State of Indiana did not effectively implement its EPSDT program, failing in particular with regard to its informing and screening components.193 Section 1983 was
192 See Stanton v. Bond, 504 F.2d 1246 (7th Cir. 1974), cert. denied, 420 U.S. 984 (1975) ("Bond I") (subsequent history omitted) for a prior decision in Bond.
193 Bond addressed the predecessor to the current EPSDT statute. These requirements are currently codified in 42 U.S. C. §§ 1396a(a)(43)(A)(informing); 1396a(a)(43)(B)(checkups);
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available to enjoin this violation of indigent children's federal rights. Bond II, 655 F.2d at 768; Bond I, 504 F.2d at 1247, 1251. In fact, the court in Bond I emphasized the mandatory nature of the EPSDT provisions at issue: "The mandatory obligation upon each participating state to aggressively notify, seek out and screen persons under 21 in order to detect health problems ... is made unambiguously clear" by the EPSDT statute. Bond I, 504 F.2d at 1250; see also Salazar v. District ofColumbia, 954 F.Supp. 278, 303, 311-12 (D.D.C. 1996); Wellington v. District of Columbia, 851 F.Supp. 1, 6 (D.D.C. 1994);194 Chappell v. Bradley, 834 F.Supp. 1030, 1035 (N.D. lll. 1993).
Similarly, the Fifth Circuit in Mitchell v. Johnston, 701 F.2d 337, 341-42 (5th Cir. 1983) allowed a§ 1983 challenge to the state's reductions in EPSDT preventive and treatment dental services. Plaintiffs complained because Texas cut several dental services from its Medicaid program for children. But, since Congress clearly intended to "require participating states to provide eligible children with a comprehensive preventive dental program," 701 F.2d at 348 (original emphasis), Texas children who qualified for Medicaid benefits could enforce the EPSDT dental provisions ofthe federal Medicaid Act through§ 1983. Id at 344, 346-51; see also Chappell, 834 F.Supp. at 1033-5.
Finally, numerous courts have held that the states' duty to provide a broad scope of treatment services available to EPSDT eligible participants is also an enforceable obligation. That
1396d(r)(1)(A) (medical checkups); 1396d(r)(3)(dental checkups). Bond relied on federal regulations and guidelines. In many regards, the language of the current statute either follows or parallels the language of the regulations in effect when Bond was decided. See 45 CFR §§ 205.146 and 205.146(c), quotedinBondll, 655 F.2d at 770; 45 CFR § 249.10(a), quoted in Bond II, 655 F.2d at 771; see also Bond I, 544 F.2d at 1250.
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is, defendants must provide to class members any healthcare service that is permissible under the federal Medicaid Act, as long as the service is "necessary . . . to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services...." 42 U.S. C. § 1396d(r)(5). For example, Pittman by Pope v. Secretary, Florida Department ofHealth and Rehabilitative Services, 998 F.2d 887, 889, 891-92 (11th Cir. 1993), holds that 42 U.S.C. § 1396d(r)(5) grants enforceable rights to Medicaid recipients under the age of21 to the full, broad range of healthcare treatment prescribed by the statute. See also Miller by Miller v. Whitburn, 10 F.3d 1315 (7th Cir. 1993)(liver-bowel transplant); Pereira v. Kozlowski, 996 F.2d 723, 724-6 (4th Cir. 1993)(heart transplant included in state's "obligation to provide to children under the age of twenty-one all necessary services"); Hunter v. Chiles, 944 F.Supp. 914 (S.D. Fla. 1996)(augmentative communicative devices and services); Montoya v. Johnston, 654 F.Supp. 511 (W.D.Tex. 1987)(Texas Medicaid program's coverage ofliver transplants for children and youth). 195
To conclude, the above-cited EPSDT sections ofMedicaid Act create specific rights- to information, to various detailed screening services, and to follow-up or corrective treatment which may be enforced by plaintiffs under § 1983. This conclusion was reached in this court's 1994 order but is reiterated today in light ofthe citation of more recent Supreme Court precedent
195 This is not a complete list of the many cases that require state Medicaid programs to cover the full range of services required by 42 USC § 1396d(r)(5). In this case, the consent decree requires defendants to provide needed case management to class members. As with organ transplants, case management is a service that is permitted by the federal Medicaid Act. 42 U.S.C. §§ 1396(a)(19); 1396n(g)(2). As a result, Defendants must provide it to class members when needed. As the above-cited cases demonstrate, plaintiffs may enforce their rights to this service and others via § 1983.
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and defendants' renewed objections.196 These federal enforceable rights form the bases for the decree provisions which plaintiffs now seek to enforce.
Issue II: Eleventh Amendment Objections
A. Defendants' Objection Defendants present a second challenge to the enforcement of various provisions of the
decree based on this court's subject matter jurisdiction. In Local Number 93, International Ass'n ofFirefighters v. City ofCleveland, 478 U.S. 501, 519 (1986) (hereinafter Firefighters), the Supreme Court stated that a consent decree possesses a dual character or "hybrid nature" that reflects attributes of both a contract and a judicial decree. Consent decrees parallel contracts since "their terms are arrived at through mutual agreement of the parties." Id at 519. The judicial aspect of a consent decree derives from the imprimatur of the court, which invests the decree with the integrity of the judiciary and signifies the court's willingness to implement the solution of the parties.
It is a fundamental concept of federal jurisprudence that the Eleventh Amendment to the U.S. Constitution is an explicit jurisdictional limitation on the judicial power of the federal courts. The Supreme Court has interpreted the Eleventh Amendment so as to provide immunity to a state against suits in federal court by a citizen of that state. Pennhurst State Sch. and Hosp. v. Halderman, 465 U.S. 89 (1984). Defendants therefore argue that the Eleventh Amendment prohibits the enforcement against the State of Texas by this federal court of any decree provision
196Because defendants do not re-urge their argument concerning the foreclosure by Congress of the use of§ 1983 in the pursuit by plaintiffs of their rights under the EPSDT statute, that issue will not be revisited.
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which goes above and beyond what federal EPSDT law requires. This court's holding otherwise,
defendants argue, would result in an impermissible infringement on the rights of the State of
Texas.197 Saahir v. Estelle, 47 F.3d 758 (5th Cir. 1995) (per curiam); Lelsz v. Kavanagh, 807
F.2d 1243, 1252 (5th Cir. 1987), cert. dismissed, 483 U.S. 1057 (1987) (the only legitimate basis
for federal court intervention consistent with the Eleventh Amendment is the vindication of
federal rights). 198
Notably, defendants do not argue that the decree was invalid as an agreement between the
parties or improperly approved by this court. To the contrary, they note, correctly, that to sustain
197In this case, plaintiffs have availed themselves of the "Ex parte Young" exception. In Ex parte Young, 209 U.S. 123 (1908), the Supreme Court created an exception to states' Eleventh Amendment Immunity in holding that acts performed by state officials in violation of federal law could not have been authorized by the state, and that, therefore, suits seeking to enjoin such acts are not suits against the state. Consequently, federal courts have authority to enjoin prospectively violations of federal law and require state officials to conform their conduct to federal law. Edelman v. Jordan, 415 U.S. 651 (1974). As the Supreme Court reiterated last year, because of Ex Parte Young, the Eleventh Amendment "does not bar certain actions against state officers for injunctive or declaratory relief" Alden v. Maine, 527 U.S. 706 (1999). In this case, plaintiffs seek injunctive relief against several state officials, including the Commissioner of Health and Human Services, the Commissioner of Health and the Texas State Medicaid director, all sued in their official capacities. Therefore, the case falls squarely within the Ex Parte Young exception to the Eleventh Amendment.
198In their Post-Trial Brief, defendants raised the additional argument that Seminole Tribe ofFlorida v. Florida, 517 U.S. 44 (1996), City ofBoerne v. Flores, 521 U.S. 507 (1997), and Kimel v. Florida Bd ofRegents, 120 S.Ct. 631 (2000), limit this court's ability to enforce the decree in this matter. However, these cases address the authority of Congress to pass laws conferring rights upon citizens, and are therefore not relevant to this case. It is well-established that Congress may impose requirements for state Medicaid programs because each state may choose whether to accept federal funds to implement the program. See, e.g., California v. United States, 104 F.3d 1086, 1092 (9th Cir. 1997);Mitche/l v. Johnston, 701 F.2d 337, 340-41 (5th Cir. 1983). Once a state chooses to accept federal Medicaid funds, it must meet all federal requirements that apply. "[S]ince Texas voluntarily and knowingly entered into the cooperative [Medicaid] program, fully aware of its requirements, it must bear the responsibilities and requirements ofits participation." Mitchell, 701 F.2d at 351.
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federal court jurisdiction to approve a consent decree against state officials, the remedies in the decree must only serve to: 1) resolve a dispute within the court's subject matter jurisdiction, 2) come within the general scope of the case made by the pleadings, and 3) further the objectives of the law upon which the complaint was based. Firefighters at 525. Notably, a Fifth Circuit panel in Lelsz held that although, under Firefighters, a federal court may enter a consent decree providing broader relief than the court could have awarded after a trial, the same court "must fall back on its inherent jurisdiction when it issues its own, different order enforcing. . . the decree." Lelsz, 807 F.2d at 1252. Thus, defendants rely heavily on the Fifth Circuit's distinction inLelsz between that which a federal court may approve in a consent decree and that which the same court may later enforce.
Defendants readily admit that some portions of the decree are directly related to the federal statutory scheme for the EPSDT program and to the rights created by Congress, and are therefore enforceable by this court. However, they argue that, in many instances, the decree creates binding obligations that are ungrounded in a federally protected right. For example, while defendants do not deny that class members have the right to certain health services, they argue that plaintiffs have not shown the relationship between outcome measure studies and the services to which plaintiffs are entitled. Defendants' Post-Hearing Brief at 5. Defendants argue that the court cannot enforce those provisions of the decree unrelated to a federally protected right because the entry of a consent decree does not expand the court's inherent jurisdiction, which is cabined by the Eleventh Amendment with respect to state defendants. Lelsz, 807 F.2d at 1252. Plaintiffs respond that each provision of the decree that they seek to enforce meets the
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requirements in the Fifth Circuit for enforcement consistent with the Eleventh Amendment; each such provision, they argue, vindicates actionable federal rights. B. Lelsz v. Kavanagh
Overview Since defendants' reading ofLelsz threatens to nullify entire sections of the decree to which they consented, a closer look at this cardinal case is warranted. Lelsz began when a class of mentally retarded patients residing in state institutions filed an action against officials of the Texas Department ofMental Health and Mental Retardation seeking treatment and rehabilitation in the "least restrictive" setting. The litigation resulted in a consent decree agreed to by the parties and approved by the district court. The district court then issued an order enforcing the consent decree requiring the state to furlough class members from institutional to "community care" centers. On appeal, a Fifth Circuit panel held that the Eleventh Amendment rendered the district court without jurisdiction to enforce the consent decree because the only source of the right to community-based treatment existed in state law, basing its holding on Pennhurst State School v. Halderman, 465 U.S. 89 (1984) ("Pennhurst Ir'). Lelsz, 807 F.2d at 1252-53.
The Holding: A Qoser Look The Lelsz panel summarized its holding as follows: "Whether the district court's [order of enforcement] springs from legitimate enforcement of the [consent decree] or as a court-created remedy for its violation is ultimately of no moment if the relief ordered, in effect, requires state officials to comply with state law." Lelsz, 807 F.2d at 1247. This statement of the holding makes apparent that the proposition defendants derive from Lelsz - that a court may not enforce decree provisions if those provisions fall outside of the court's "inherent jurisdiction" -must be viewed
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in conjunction with the federalism which permeates Pennhurst Il Defendants rely on one
sentence in the Lelsz decision that draws an apparent distinction between the authority of a court
to approve a consent decree and its authority to enforce it. By isolating this single sentence,
defendants obscure the context of the decision, which targets the enforcement of state laws
against state actors in federal courts:
Appellees would draw support from [Firefighters] for the proposition that "a federal court is not necessarily barred from entering a consent decree merely because the decree provides broader relief than the court could have awarded after a trial." This argument founders on several grounds. First, appellees interpret [Firefighters] far too broadly. For one thing, that case emphasizes that "a consent decree must spring from and serve to resolve a dispute within the court's subject-matter jurisdiction." If the court has no jurisdiction, as a result of the application of the Eleventh Amendment through Pennhurst II, [Firefighters] does not apply. Additionally, [Firefighters] addressed the entry of a consent decree and held that the parties' agreement could result in a decree whose terms would exceed the court's remedial authority under a governing statute. It does not enlarge the court's latitude to issue its own, different order enforcing or modifying the decree, for in that case we presume the court must fall back on its inherent jurisdiction. The Court in [Firefighters] cited Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 104 S.Ct. 2576, 81 L.Ed.2d 483 (1984) with approval ofthe proposition that in modifying a consent decree, the court may not act inconsistently with the underlying statute.
Lelsz, 807 F.2d at 1252 (citations omitted). The sentence in the above passage on which
defendants rely, in which the panel holds that Firefighters does not "enlarge the court's latitude to
issue its own, different order enforcing or modifying the decree," is sandwiched between two
important keys to its interpretation. First, the Lelsz panel began its task of distinguishing
Firefighters by noting that if a federal court lacks subject matter jurisdiction because ofPennhurst
II, the Firefighters standard for the entry of decrees does not apply. From this beginning
statement, it is apparent that the Lelsz panel was primarily concerned with the inability of a federal
court to enforce state law against state defendants. Next to the panel's strong emphasis on the
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Eleventh Amendment implications of enforcing provisions built on state law, the panel's subsequent distinction between the approval of and the enforcement of a decree appears as little more than an afterthought. The remainder of the decision in Lelsz, and its heavy reliance on Pennhurst II, lend further support to the interpretation that the approval/enforcement distinction is mere dicta - or, at the very least, not at all central to the discussion of the state law issues with which the panel was confronted.
The sentence at the close of this passage similarly cabins the meaning of the words on which defendants rely. The phrase, "in modifying a consent decree, the court may not act inconsistently with the underlying statute," again suggests that the Lelsz panel was primarily concerned not with the approval/enforcement distinction, but with a district court's ordering a remedy "inconsistent" with underlying federal law. Like the Lelsz panel's emphasis on Pennhurst II and state law, the panel's intent to limit clearly the scope of the power of the district court is a theme in the opinion which all but eclipses the brief drawing of a distinction between the approval and enforcement of a consent decree: "If, as appellees argue, a federal court may take almost any action against a state to enforce a consent decree so long as it is 'consistent with' the 'spirit' of the applicable constitutional law and the decree itself, there is no limitation on the scope ofthe court's power. Lack ofrestraint on an organ of government (even the judiciary) is the antithesis oflaw." Lelsz, 807 F.2d at 1253. Upon closer examination, however, the Lelsz panel's vision ofjudicial restraint is nothing more than the rule in Armour that a court may not, in an order enforcing a decree, go further than the "four comers" of the decree; looking to its "spirit" is impermissible. Armour, 402 U.S. at 462. This principle is neither derived from nor furthered by the panel's distinction between the approval of and the enforcement of a decree. Throughout the
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opinion, this theme is intertwined with the court's focus on Pennhurst II, without additional comment on the distinction upon which defendants now base their response.
The Na"owing ofLelsz This court is not the first to view Lelsz in the shadow and wake ofPennhurst II. The dissent from the Fifth Circuit's denial of rehearing en bane in Lelsz makes clear that the primary issue in the case was whether Pennhurst II "addresses [or] changes prior law on the jurisdiction of federal courts to order remedies for federal law violations" or "address[es] federal court jurisdiction to approve an agreed remedy for mixed violations of federal and state law." Lelsz v. Kavanagh, 815 F.2d 1034, 1036 (5th Cir. 1987). Further, in Ibarra v. Texas Employment Commission, 823 F.2d 873 (5th Cir. 1987), the Fifth Circuit itself characterized the Lelsz panel as having "applied Pennhurst to vacate a portion of a district court order enforcing a consent decree when the relief provided by that part of the decree was grounded solely in state law." 823 F.2d at 876-77 (citingLelsz, 807 F.2d at 1255). The Ibarra court held: Assuming without deciding that Pennhurst would extend to a federal court order approving a consent decree, we conclude that Pennhurst does not apply to the present case because the consent decree is not based on state law.... The concerns about state sovereignty and the lack of any federal interests that were critical to Pennhurst are not appropriate when, as in this case, the issue is one of interpreting federal law. Ibarra, 823 F.2d at 877 (citingLelsz, 815 F.2d at 1036). Along these same lines, Ibarra has since been interpreted by other courts as limiting Lelsz to the enforcement of consent decrees based on state law. In Kozlowski v. Coughlin, 871 F.2d 241 (2nd Cir. 1989), the Second Circuit noted that "the Fifth Circuit has limited [Lelsz] to decrees based solely on state law." 871 F.2d at 244, n. 3 (citing Lelsz, 824 F.2d at 373; Ibarra, 823 F.2d at 876-77). Similarly, in Duran v. Carruthers, 678 F.Supp. 839, 850-51 (D.N.M. Feb 11, 1988),
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it was held that "any implication that the Lelsz holding went beyond an application of Pennhurst
to a consent decree based solely on state law is eliminated dispositively by Ibarra." See also
Wyatt v. Rogers, 956 F.Supp. 1356, 4132, n. 342 (N.D. Ala. 1997) (rejecting argument based on
Lelsz that court had limited jurisdiction to enforce consent decree as inapposite in a case not
involving a decree based on state law); United States v. State ofMichigan, 62 F.3d 1418 (6th Cir.
1995).
Despite the pronouncements of these courts, defendants rely on Saahir v. Estelle, 41 F.3d
758 (5th Cir. 1995) (per curiam), as evidence of the continuing vitality of Lelsz beyond its
application to a consent decree based on state law. In Saahir, an inmate filed a motion for civil
contempt against state prison officials, alleging that the officials had violated a court-approved
consent decree by confiscating and not returning his nonreligious tapes. The language of the
decree was broad enough to cover all tapes, though Saahir had brought the suit in an effort to
vindicate his First Amendment right to practice religion. The Fifth Circuit panel, citing Lelsz, held
that the enforcement of the provision allowing Saahir to possess nonreligious tapes was not
required by any federal or constitutional law, and that the federal court therefore had no
jurisdiction to enforce the provision. Said the panel:
Here, enforcing the provision that allows Saahir the non-religious tapes would not require the federal court to enforce state law against the State, as there is no state law giving prisoners the right to listen to musical tapes. Thus, Pennhurst 's central concern of having "a federal court instruct [ ] state officials on how to conform their conduct to state law," Pennhurst, 465 U.S. at 106, 104 S.Ct. at 911, is not implicated here. Nonetheless, enforcing the provision would not be required by any federal or constitutional law, as we fail to discern any First Amendment protections except as to the religious tapes. Because "the only legitimate basis for federal court intervention, consistent with the Eleventh Amendment is the vindication of federal rights," Lelsz, 807 F.2d at 1252, the federal courts have no jurisdiction to enforce the provision as it relates to the non- religious tapes. Although the State of Texas has evidently not legislated on this particular issue,
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whether a prisoner has a right to listen to musical tapes is an issue that falls in the area of state governance and not that of the federal government. "If a federal court remedy unfounded in federal law intrudes into the governance of matters otherwise presided over by the states, no federal right has been vindicated." ld. Saahir, 47 F.3d at 761. Despite defendants' arguments to the contrary, Saahir is easily distinguished from the case at hand. First, whether plaintiffs are entitled to specific services under the federal EPSDT statute is not an "issue that falls in the area of state governance and not that of the federal government." Instead, the decree provisions plaintiffs seek to enforce are clearly related to the federal EPSDT program in a way that nonreligious tapes are not linked to the First Amendment right to practice one's religion. Second, in Saahir, poor drafting led to the inclusion of a decree provision that, under the court's broad interpretation, bore no relation to federal law. There has been no mistaken inclusion of paragraphs unrelated to the health of the plaintiff class and the goals of the federal EPSDT program in this case. Third, the distinction in Lelsz between what a court may approve and what may be enforced was not, in the view of this court, central to the Saahir court's decision, because the provision at issue would not have passed the Firefighters test for approval had it been read at the time of entry to include nonreligious tapes. That is, the court might just have easily held, without reliance on Lelsz, that the approval of a provision arguably broad enough to cover non-religious tapes was invalidly entered, for it neither came "within the general scope of the case made by the pleadings" nor "further[ed] the objectives of the law upon which the complaint was based." Firefighters, 478 U.S. at 525. These factors suggest that one should read Saahir as somewhat of an outlier case (confined to its rather odd set of facts) and caution against viewing the case as an extension or broadening of Lelsz. For these reasons, it is held that the restrictive language ofLelsz, appropriately narrowed to situations involving the
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enforcement of state law provisions by the several above-cited authorities, should not apply here,
despite its apparent resurgence in Saahir. 199
An Untenable Distinction?
Finally, it is noted that, while the distinction between a federal court's jurisdiction to
approve of terms in a decree and its jurisdiction to enforce those provisions persists in the Fifth
Circuit (albeit in rare instances and in narrow form), more than one judicial mind has found the
distinction utterly indefensible. For example, the Second Circuit held in Kozlowski, supra, that
"the Firefighters opinion is consistent with the dictates of the Supreme Court's Eleventh
Amendment jurisprudence, and the [Lelsz] distinction is untenable. If a federal court can validly
enter a consent decree, it can surely enforce that decree." 871 F.2d at 244. The Tenth and
Seventh Circuits have likewise adopted this standard. Duran v. Carruthers, 885 F.2d 1485 (lOth
Cir. 1989); Komyatti v. Bayh, 96 F.3d 955 (7th Cir. 1996). Similarly, the dissenters from the Fifth
Circuit's denial of rehearing ofLelsz en bane agreed with the Second, Seventh and Tenth Circuits
in this regard:
199parenthetically, it is noted that even when both Lelsz and Saahir are given the broadest of interpretations - their holdings not narrowed to their contexts, as in the above analysis - the rule that a court "must fall back on its inherent jurisdiction" in enforcing a consent decree says very little about which of the many decree provisions in the instant case may be enforced. The Lelsz and Saahir panels were confronted with decree provisions which were found to be wholly unrelated to federal law. Thus, while these cases make clear that the scope of a consent decree does not enlarge the jurisdiction of a federal court, neither case sets out a standard for how related or linked a provision must be to a federal claim over which a court does have subject matter jurisdiction. Certainly the "inherent jurisdiction" on which the court must now "fall back," under Lelsz, would permit the enforcement of a decree that includes more than the mere recitation of federal law, as "almost any affirmative decree beyond a directive to obey [federal law] necessarily does that." Rufo v. Inmates ofSuffolk County Jail, 502 U.S. 367, 389 (1992). For this reason, Lelsz and Saahir are uninstructive in a case involving a decree which does not implicate state law and which obviously has its roots in federal law.
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There can be no doubt that a federal court, to remedy federal violations, may require state officers to adopt programs that, absent the federal violations, were not guaranteed to the plaintiffs by the Constitution or federal statute. The remedial program need only be tailored to cure the condition that offends federal law. Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977); Gates v. Collier, 501 F.2d 1291 (5th Cir.1974). Ifthe parties do not choose to proceed to trial, the court may, with their agreement, enter a consent decree that provides relief greater than the court might have awarded after trial. Local Number 93 v. City ofCleveland, 478 U.S. 501, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986). The panel opinion is inconsistent with that clearly established law.
815 F.2d at 1037 (dissent from denial of rehearing en bane by Reavley, Circuit Judge, with whom Clark, Chief Judge, Rubin, Politz, Randall, Johnson, and Williams joined).Z00 In addition, it is
noted notes that the principles of comity and federalism are furthered when state defendants draft
their own documents setting out the means by which they will come into compliance with federal
law. To the extent such documents are later held unenforceable by federal courts, the incentives
for plaintiffs to enter into such voluntary agreements with defendants are lessened if not wholly
removed.
Indeed, the positive policy implications oflimiting this distinction are obvious: "Having
entered into the consent decree rather than bringing the dispute . . . to trial, [the defendant] cannot
now evade an integral portion of that decree on the ground that it was not directly tied to a
federal claim." Kozlowski, 871 F.2d at 245 (quoting Kozlowski, 711 F.Supp. 83, 87 (S.D.N.Y.
1988)). Such an outcome would detract from the integrity of the court by allowing state
200See also Alan Effron, Federalism and Federal Consent Decrees Against State Governmental Entities, 88 Colum.L.Rev. 1796, 1812 ("While there is still much uncertainty about the proper relationship of federal consent decrees to state sovereign immunity, it seems clear that the federalism protections of the eleventh amendment, like those of the article III 'case or controversy' requirement, are considerably less embracing here than in the context of ordinary federal equitable relief" (footnotes omitted)).
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defendants to avoid bargained-for obligations while receiving the benefit of escaping litigation and
potential liability. The parties' intent would also be ignored in such a scheme, and the finality of
parties' voluntary agreements significantly undermined. Obviously, such decree nullification
would leave little incentive for future parties to enter into voluntary agreements, which avoid often protracted and time-consuming litigation.201 The Supreme Court has since reaffirmed this
logic in the context of the modification of consent decrees based on constitutional claims:
To hold that a clarification in the law automatically opens the door for relitigation of the merits of every affected consent decree would undermine the finality of such agreements and could serve as a disincentive to negotiation of settlements in institutional reform litigation. [Such a holding] "would necessarily imply that the only legally enforceable obligation assumed by the state under the consent decree was that ofultimately achieving minimal constitutional prison standards.... Substantively, this would do violence to the obvious intention of the parties that the decretal obligations assumed by the state were not confined to meeting minimal constitutional requirements."
Rufo, 502 U.S. at 389-90 (quotingPryler v. Evatt, 924 F.2d 1321, 1327 (4th Cir. 1991)).
In sum, the distinction in Lelsz between the approval of and enforcement of decree
provisions has been confined by several authorities to situations involving consent decrees based
on state law. Moreover, the distinction as it was originally drawn had little repercussion for the
actual holding or logic inLelsz, and was not necessary to the holding in Saahir. Because ofthe
narrowing of the Lelsz distinction discussed above, defendants' invitation to extend the distinction
to this case, in which the decree provisions at issue bear a clear relationship to federal law is
declined. Furthermore, the reasoning ofthe dissenters from the denial of rehearing en bane in
201Additionally, ifjudicial precedent renders the line between what is within the jurisdiction of a federal court and what is not becomes more difficult to discern, parties contemplating entering into consent decrees will be even more unsure about their future ability to enforce decree provisions. This uncertainty will further undermine parties' incentives to bind themselves by such agreements.
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Lelsz, the subsequent explicit rejection of the Lelsz distinction by three Circuit Courts of Appeals,
and the strong policy-based arguments briefly outlined above, all caution against the extension of
the Lelsz distinction to this matter.
C. Application
In accordance with the above analysis, the Firefighters test will be applied to the decree
provisions sought to be enforced by plaintiffs.202 As was held above in Part Two, Section I,
plaintiffs possess rights under the EPSDT statute that are enforceable through § 1983. These
rights include the right to be informed of the program, the right to the provision of or arrangement
for the provision of screening services, and the right to the arrangement for corrective treatment.
Plaintiffs also possess rights to regular medical and dental checkups, and rights to the full range of
healthcare services allowed by the federal Medicaid statute, including but not limited to case
management. After a careful and thorough review ofthe decree provisions sought to be enforced
by plaintiffs, it is found that each provision falls squarely within the parameters outlined in
202 The reasons for this court's decision to apply the Firefighters standard have been made abundantly clear. During the course of this hearing, defendants have urged the court to adopt various tests in determining whether or not the various decree provisions, all of which bear some relationship to plaintiffs' federally protected rights, are enforceable. Defendants' Post-Trial Brief at 13 (provisions must "seek to vindicate federally protected rights"), at 27 (provisions must "seek to protect rights created by the EPSDT legislation"); Defendants' Brief in Response to Plaintiffs' Brief in Support of this Courts Jurisdiction to Enforce Consent Decree at 5 (provisions must "directly vindicate an enforceable federal right"), at 7 (provisions must "be closely related to the federal right"); Defendants' Post-Trial Brief at 28 (provisions must be actual requirements of federal law or, alternatively, must have been violated by defendants so as to have "resulted in class members being deprived of specific entitlements or federally protected rights created by the statute"). Because the Firefighters standard will be applied by the court for the reasons listed above, defendants' proposed alternative standards will not be fully discussed or applied. However, it is found that, were it the case that only those decree provisions "closely related to" or "directly vindicating" plaintiffs' federal rights were enforceable by this court, this standard would also permit the enforcement of each of the provisions found to have been violated by defendants.
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Firefighters, and therefore may be enforced against defendants. Because the provisions sought to
be enforced are many, see Part One, supra, the court's application of the Firefighters standard
will not be spelled out in detail with respect to every provision. Instead, each of defendant's
objections to the enforcement of various provisions will be considered individually?03 Only those
objections to paragraphs which defendants were found in Part One to have violated will be given
attention below. Paragraphs which defendants are found to have violated in Part One but are not
discussed below in relation to defendants' objections are found by the court to be enforceable
under the application of this test.
203 Before directing its attention toward defendant's objections to the enforcement of specific provisions of the decree, this court notes its strong agreement with the reasoning in Komyatti v. Bayh, 96 F.3d 955, 956 (7th Cir. 1996), regarding the appropriate course for a defendant seeking to avoid the enforcement of a consent decree:
[W]e believe that the court expressed the usual course in Kindred when it wrote that a "continuing respect for the valid decrees of a court commands that they be obeyed until changed." 9 F.3d at 644. Such an approach is certainly compatible with the traditional approach of our law. See Pasadena City Bd ofEduc. v. Spangler, 427 U.S. 424, 439-40, 96 S.Ct. 2697, 2706-07, 49 L.Ed.2d 599 (1976); Walker v. City ofBirmingham, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967). Such an approach is also, we are pleased to say, most compatible with the traditions of our people and their commitment to a rule oflaw.
Id at 963 (footnote omitted). It is acknowledged that the Fifth Circuit permitted a party to be excused, without having made a motion to modify, from a decree obligation which bore no resemblance to any requirement of federal law. Saahir v. Estelle, 47 F.3d 758 (5th Cir.1995). Nonetheless, in cases like this one, in which the court's jurisdiction to enforce particular provisions of the decree is somewhat difficult to ascertain because of the obvious relationship of each provision to federal law, a motion to modify seems most warranted. Otherwise, state officials may be tempted to ignore decree provisions where plaintiffs' ability to enforce them in the future remains unclear. While the defendants in this case have not shown such utter disregard for the order of a federal district court, it would make sense, generally speaking, to create a legal framework in which a defendant seeking to avoid a decree obligation is required to seek an alteration of the decree from the district court. However, in light of Saahir, the requirement of filing a motion to modify will not be imposed on defendants in this case without further direction from the Fifth Circuit.
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Enforcement ofProvisions Guaranteeing Services Outreach
Defendants challenge, first, this court's ability to enforce the outreach provisions of the decree, discussed at length in Part One, Section I. Defendants assert that plaintiffs' reliance on the term "effective," as that term appears in the decree, contradicts HCFA's definition ofthe term, therefore materially altering the requirements of federal law. Specifically, defendants point to 42 C.F.R. § 441.56(a), which states that a state agency must provide for a combination of written and oral methods "designed to inform effectively." Defendants argue that this regulation should guide the court in ascertaining the parameters of the duty to conduct outreach under federal law. "The duty to effectively inform all persons in the state is a much greater burden," defendants note, "than is the duty to provide a method designed to effectively inform." Defendants' Post-Trial Brief at 24. The court is in agreement with defendants that, in fact, the duty to inform all eligible participants for the program is a much greater task than is the duty to design a method to do so. However, the duty under federal law is unequivocally the duty to "inform[] all persons" eligible for EPSDT about their rights to services. 42 U.S. C. § 1396a(a)(43)(A). However, defendants' argument fails for two reasons. First, as was explained in Part One, Section I, the isolated use of the word "effective" in a single regulation is not particularly probative ofthe parties' intended meaning of the term "effective" as used in the decree. This is made obvious by the parties' repeated use of the word in conjunction with defendants' outreach duties without the use of the modifying phrase "designed to."
Second, the court having interpreted the phrase "effectively inform" within the four comers of the decree in Part One, Section I(C), the only remaining question is, may the court
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enforce the provision as it has been interpreted? To answer that question, the court looks not to
an isolated regulation involving one aspect of the duty to inform, but instead to the federal statute
itself, which unequivocally requires defendants to "inform[] all persons" eligible for EPSDT
about their rights to services. 42 U.S. C. § 1396a(a)(43)(A). Decree provisions which obligate
defendants to inform "effectively," as this court has interpreted the term, clearly serve to resolve a
dispute within the court's jurisdiction, come within the general scope of the case made by the
pleadings, and further the objectives ofthis statutory provision. Put simply, if plaintiffs have an
enforceable right to be informed, decree provisions requiring defendants to inform them effectively clearly vindicate that right. Therefore, paragraphs 32204 and 52 of the decree are held
to be enforceable.
Services
Defendants next object to the enforcement of the decree's provisions concerning the
provision of medical and dental205 checkups and case management. With respect to these
204The sufficient staffing requirement in paragraph 32, which facilitate the effective informing of the plaintiff class, is similarly held to vindicate class members' right to be informed, and passes the Firefighters test cited above.
205With respect to dental checkups, defendants launch an independent objection to the enforcement of paragraph 143, which obligates defendants to provide periodic dental check ups to plaintiffs. Defendants note that the federal statute entitles plaintiffs to dental "services," and not "checkups." However, federal law also states that "dental services ... shall at a minimum include relief of pain and infections, restoration of teeth, and maintenance of dental health." 42 U.S. C. § 1396d(r)(3)(B). Further, dental services must be provided at "intervals which meet reasonable standards of dental practice . . . and at such other intervals, indicated as medically necessary, to determine the existence of a suspected illness or condition." 42 U.S.C. § 1396d(r)(4)(A). It is held that paragraph 143 's mandate that dental checkups be provided quite obviously meets the first two of the Firefighters requirements, and clearly furthers the objectives of the law, which include the "maintenance of dental health" through treatment provided at regular "intervals." The term "checkup" is mere shorthand for these federal requirements.
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provisions, defendants argue that federal law merely requires the provision of these services upon request. This objection is discussed at length in Part One, Section II of this Memorandum Opinion, where it is held that the "request" language appearing in the federal EPSDT statute must be read to require the provision of services only upon requests made by those who have first been informed. It is found that the decree provisions requiring the provision of these services serve to resolve a dispute within the court's jurisdiction, come within the general scope of the case made by the pleadings, and further the objectives of the law upon which the complaint was based. Indeed, these provisions are no more than restatements ofthe requirements of federal law. 42 U.S.C. § 1396a(a)(43). More specifically, this court's interpretation ofthose provisionsnamely, that defendants may be held in violation of decree requirements regarding the provision of services upon request where they have failed to provide class members with the information necessary to make such requests - may be enforced as entirely consistent with the history, text, and structure ofthe federal EPSDT statute. See Part One, Section II, supra. Therefore, paragraphs 2, 3, 212,206 and 143 are held to be enforceable by this court. Defendants launch a similar objection to the enforcement of the decree's case management provisions. For the reasons given above, paragraphs 248 and 264207 are also held to be enforceable by the court.
206Defendants launch an independent objection to the enforcement of paragraph 212, arguing that its focus on abused and neglected class members has no basis in federal law. Because this paragraph does no more than state defendant's general duty under federal law with respect to a subgroup ofthe class, defendant's objection will be denied.
P 207 aragraph 264 also clearly passes the Firefighters test because, under 42 U.S. C. § 1396a(a)(1), each state's plan must provide that the EPSDT program be in effect in all political subdivisions of the state.
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Managed Care Defendants object to the enforcement of decree provisions obligating defendants to
provide checkups and other services to class members who are enrolled in managed care. Defendants note that 42 U.S.C. § 1396u-2 gives states the option to use managed care and to require an individual who is eligible for medical assistance under a state plan to enroll with a managed care entity as a condition of receiving assistance. That section also requires managed care organizations (MCOs) to provide assurances to the state and to the Secretary that the appropriate range of services and access to preventive and primary care services for the population enrolled in the service area is being offered. The provision also requires that MCOs maintain a sufficient number, mix and geographic distribution of providers of services. Defendants stress that under§ 1396u-2, each MCO is required to "offer" services, and is not expressly required to assure the receipt of such services. Defendants appear to argue that this should affect the court's ability to enforce the managed care provisions of the decree, discussed at length, supra, at Part One, Section IV.
This argument wholly misses the mark. Section 1396u-2 permits the states to utilize managed care to meet their obligations under the federal EPSDT statute; it does not free them from those obligations, or limit their responsibilities to managed care enrollees. Paragraphs 190 and 192 of the decree merely extend defendants' obligations under the EPSDT statute to class members enrolled in managed care, giving special emphasis to their entitlements in light of the potential problems posed by the implementation of managed care. 208 Moreover, the findings of
208The portions of paragraphs 190 and 192 relevant to this discussion are those which defendants were found to have violated in Part I, Section IV. Paragraph 190 mandates that class members in managed care are "entitled to timely receipt of the full range ofEPSDT services,
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fact in relation to this subgroup, see Part One, Section IV(B), clearly demonstrate that special provisions underlining defendants' obligations to managed care enrollees are necessary to ensure defendant's compliance with 42 U.S. C. 1396a(a)(43). In sum, paragraphs 190 and 192 do not "go beyond"§ 1396u-2, as defendants argue; they merely dictate that defendants must comply with federal EPSDT law with respect to managed care enrollees. Thus, these paragraphs quite obviously serve to resolve a dispute within the court's jurisdiction, come within the general scope of the case made by the pleadings, and further the objectives of the law upon which the complaint was based. Paragraphs 190 and 192 are therefore held to be enforceable by the court.
Along these same lines, defendants argue that because 42 U.S.C. 1396(c)(1)(A)(i) requires a state implementing managed care to develop and implement access standards, paragraphs 190 and 192 go beyond the requirements offederallaw. However, as stated above, the managed care paragraphs go no further than to assure defendants' compliance with the EPSDT statute, which requires them to inform and provide services to all members of the EPSDT population, including those in managed care. Additional federal provisions relating to the implementation of managed care do not limit defendants' duties under 42 U.S.C. § 1396a(a)(43). Such provisions further regulate the implementation of managed care.
Defendants also maintain that an additional provision of paragraph 192, which requires defendants to assure that managed care organizations have the capacity to accelerate services to the children of migrant farmworkers to accommodate their special circumstances, has no basis in
including but not limited to medical and dental checkups." The pertinent portion of paragraph 192 is its requirement that defendants "assure medical and dental checkups in a timely manner to all [managed care] recipients." See also paragraph 266, which states that "[a]ll EPSDT recipients, including those in managed care, are entitled to the full range of case management assistance when medically needed."
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federal law. It is recognized that the words "farmworkers" and "acceleration" do not appear in the federal EPSDT statute or accompanying regulations. However, as Part One, Section IV(D) aptly demonstrates, this subclass ofEPSDT eligible participants do not receive the information or services to which they are entitled without such acceleration. Defendants have a duty under 42 U.S. C. § 1396 to inform "all" EPSDT eligible participants about the program and to provide services to those who request them after having been informed. See Part One, Section II(C). Paragraph 192 requires acceleration because it is a necessary step in fulfilling the duty to inform and serve a population that migrates quickly and is unreachable for long durations of time. See Part One, Section IV(D). This requirement, which clearly vindicates the rights of this subset of the class, serves to resolve a dispute within the court's jurisdiction, comes within the general scope of the case made by the pleadings, and furthers the objectives of 42 U.S.C. § 1396a(a)(43).

Therefore, the farmworker acceleration requirement in paragraph 192 will be enforced by the

court.

Enforcement ofProvisions Requiring Reporting ofData and Information

Reporting Defendants make numerous objections to the various decree paragraphs requiring the

furnishing of information to plaintiffs. Defendants first object that the decree's requirement (in paragraphs 284 and 191) that
defendants report the number of eligible participants who have received checkups is unenforceable because the Health Care Finance Administration (HCFA) does not so require. HCFA Form 416, which is used by HCFA to assess the effectiveness of state EPSDT programs, requires states to report only the number of eligible participants receiving any dental service, the number of eligible

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participants receiving preventive dental services, and the number of eligible participants receiving dental treatments. Defendants argue that plaintiffs have "made no showing that their claim regarding the reported percentages of dental checkups as compared to medical checkups is at all related to a federally protected right to the receipt of dental services upon request." Defendants' Post-Trial Brief at 17. The court is well aware that HCFA does not require the reporting of the receipt of checkups. However, it is held that the decree's reporting requirements quite clearly served to resolve a dispute within the court's jurisdiction and come within the general scope of this case. It is further held that the collection of data furthers the objectives of the EPSDT statute, which is to improve the health of poor children. That objective cannot be accomplished without constant and rigorous review ofthe program's accomplishments and shortcomings. Therefore, paragraph 284 will be enforced by this court.
A similar conclusion must be reached with regard to defendants' challenge to the decree's reporting requirements concerning managed care enrollees. Although HCFA does not require the data required by the decree about the receipt of care by eligible participants enrolled in managed care, it is unquestionable that the Firefighters standard has been met with regard to this reporting provision. Therefore, paragraph 191 will be enforced by this court.
Defendants next object to the reporting requirements for teens and for abused and neglected class members, asserting that neither federal law nor regulations impose any distinct screening performance standards on the state with respect to any sub-groups in the EPSDT population. Again, while HCFA may not require such detailed reporting, reporting on defendants' compliance with federal law with respect to these at-risk subgroups clearly served to resolve a dispute within the court's jurisdiction, comes within the general scope of the case made
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by the pleadings, and furthers the objectives of the law upon which the complaint was based. Therefore, paragraph 212 will be enforced by the court.
Additionally, the decree requires defendants to provide plaintiffs with the number of class members who get medical or dental checkups in each county or cluster of sparsely populated counties. This requirement also clearly passes the Firefighters test, as 42 U.S.C. § 1396a(a)(1) requires that each state's plan provide that the EPSDT program be in effect in all political subdivisions ofthe state. Given this provision, the "statewideness" reporting provisions ofthe decree in paragraphs 273 through 281 are held to be enforceable. Outcome Measures and Corrective Action Plans
Defendants next object to the decree's requirement that they provide certain outcome measures. See Part One, Section VII. The agreed-upon outcome measures, which assess the health of the EPSDT population, include immunization rates among subpopulations ofthe class, lead poisoning levels among class members, asthma hospitalization rates, and the mental health of the population. Again, these are not explicitly required by federal law. However, these indicators of the health of the plaintiff class were created by the parties to gauge the success of the EPSDT program and the widespread receipt of particular services. Therefore, like the other reporting requirements discussed above, the outcome measures clearly fall within the scope ofthis case, and further the objective of the EPSDT program by informing both parties as to the recipients' health needs and progress. Paragraphs 289, 293, 295, and 296 are therefore enforceable by the court.
Next, defendants challenge the requirement that they create corrective action plans to address the needs of"lagging" counties. See Part One, Section III. Defendants assert that they need not "have every class member with a need serviced," as this would be "impossible."
172

Case 3:93-cv-00065-RAS Document 315 Filed 08/14/00 Page 173 of 175 PageID #: 3734
Defendants' Post-Trial Brief at 20. The court is in agreement with this statement, and has found defendants in violation not for failing to service every child with a health need, but for failing to meet the requirements of 42 U.S. C. § 1396a(a)(43), based on the overwhelming evidence cited in Part One. The requirement that defendants address the needs of"lagging" counties, however, is supported not only by 42 U.S.C. § 1396a(a)(43), which requires the informing and subsequent servicing upon request of"all" eligible participants, but also by§ 1396a(a)(l), which imposes a "statewideness" requirement upon participating states. It is found that the requirement that defendants create corrective action plans to address their failures in regions where the performance of the EPSDT program is particularly dismal is enforceable by plaintiffs. The provision clearly vindicates the rights of plaintiffs to receive services to which they are entitled and passes the Firefighters test. The corrective action requirements in paragraphs 273 through 281 are therefore enforceable by the court.209
Enforcement ofTraining and Toll-free Line Provisions The decree's training provisions - both those relating to the training of managed care personnel and those covering the training of providers and others outside of the managed care system - will also be held enforceable by plaintiffs. Training, defendants correctly argue, is not a requirement offederallaw. However, both common sense and plaintiffs' evidence aptly demonstrate the causal connection between the increased knowledge of providers and other
209Although defendants do not specifically object to the corrective action requirement for the medical transportation program, it is found that the requirement that defendants continually re-assess the means by which they arrange and provide healthcare is also enforceable because it is one means by which the state may meet its obligations under 42 U.S. C. § 1396(B) and (C). Thus, the corrective action plan provision serves to vindicate plaintiffs' rights to such arrangement and provision of services. It also clearly passes the Firefighters test. Paragraphs 223 through 229 are therefore held to be enforceable.
173

Case 3:93-cv-00065-RAS Document 315 Filed 08/14/00 Page 174 of 175 PageID #: 3735
personnel and the access to and receipt of services by the plaintiff class. Training personnel clearly vindicates the rights of the plaintiffs to information and services. Only those who are trained can impart correct knowledge, and only with knowledge may plaintiffs make requests. Moreover, the provisions most certainly served to resolve this dispute, and they come within the general scope of the case made by the pleadings. Finally, training providers about EPSDT clearly furthers the objectives of the EPSDT statute. For these reasons, the court may enforce paragraphs 107, 108, 112, 113, 114, 117-120, 124-130, and 194.
Defendants also object to the toll-free line provisions of the decree, noting correctly that no such lines are required by federal law or regulation. However, defendants are under a clear statutory mandate to "provide or arrange for'' services upon request. 42 U.S.C. § 1396. For program eligible participants, who are often without home phones or transportation, the toll-free lines are crucial to the coordination of and receipt ofhealthcare. See Part One, Section V(A). The requirement that defendants answer toll-free lines promptly and helpfully directly vindicates the rights of plaintiffs to information, to receive services "upon requests" (which are most frequently made by class members who cannot afford to pay a toll), and to have services "provided" and "arranged for." 42 U.S.C. § 1396a(a)(43). It is further found that the requirement serves to resolve this dispute, and comes within the general scope of the case made by the pleadings. Last, it is found that because the toll-free lines function as the defendants' primary means of fulfilling their duty to provide or arrange services, paragraph 247 unequivocally furthers the objectives of the EPSDT statute. Paragraph 247 will therefore be enforced by the court.
174

Case 3:93-cv-00065-RAS Document 315 Filed 08/14/00 Page 175 of 175 PageID #: 3736
Conclusion
The court compliments both parties in their diligent efforts to present abundant evidence to the court regarding the merits of this motion to enforce the decree, and further compliments the efforts of both parties to meet the health needs of disadvantaged children in this state.
Based on the above findings of fact and conclusions oflaw, defendants are hereby FOUND to have violated certain provisions of this court's decree in this matter, as detailed in Part One of this Memorandum Opinion. It is further FOUND that the decree is enforceable to the extent outlined above, in Part Two of this Memorandum Opinion.
tel.~~ SIGNED this 9th day ofAugust, 2000.
Senior United States District Judge
175

 
 Case 3:93-cv-00065-RAS Document 330 Filed 10/10/00 Page 1 of 7 PageID #: 3802

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
PARIS DIVISION

LINDA FREW, et al., Plaintiffs,
v. DON GILBERT, et al.,
Defendants.

BY

*

DEPUTY~~_,.....__ _ __

*

*

* CIVIL ACTION NO. 3:93CV65

*

*

*

*

*

ORDER

Defendants/Appellants in the above-entitled and numbered civil action now move this court

to stay enforcement of its August 14, 2000, order pending appeal, or, alternatively, until the adjournment of the 77th session of the Texas Legislature. 1 For reasons further detailed below, the

motion will be denied.

On September 1, 1993, plaintiffs first challenged the state's failure to fully implement the

Texas Health Steps (THSteps) program (federally titled: Early and Periodic Screening, Diagnosis

and Treatment (EPSDT)), a Medicaid program intended to provide and ensure timely,

comprehensive health care to indigent youth. Litigation resulted in a consent decree outlining action

plans for various components of the THSteps program, administered by the Texas Health and

Human Services Commission. The decree was found by the court to be fair, reasonable and

adequate on February 20, 1996.

Two and one-halfyears later, plaintiffs moved the court to enforce the consent decree, citing

eight areas of alleged non-compliance. Following an evidentiary hearing earlier this year, this court

found the defendants deficient in regard to several obligations under the 1996 consent decree. In

1The 77th session will run from January 9, 2001, to May 28, 2001.

Case 3:93-cv-00065-RAS Document 330 Filed 10/10/00 Page 2 of 7 PageID #: 3803
an order issued on August 14, 2000 ("August 14 Order"), the court instructed defendants to file proposed corrective action plans to remedy each violation of the decree identified in the accompanying memorandum opinion within sixty days. It is this order which the defendants seek to stay.
Defendants move for a stay under Rule 62(c) ofthe Federal Rules of Civil Procedure, which provides interim relief where justified by relative harm and the uncertainty of final disposition. See Ruiz v. Estelle, 650 F.2d 555, 566 (5th Cir.l981 ). Courts should consider four factors in determining the propriety of such a stay: (1) whether the movant has made a showing of likelihood of success on the merits; (2) whether the movant will be irreparably injured if the stay is not granted; (3) whether the granting of the stay will substantially harm other interested parties to the proceeding; and (4) where the public interest lies. Hilton v. Braunskill, 481 U.S. 770, 776 (1987); United States v. Baylor Univ. Medical Ctr., 711 F.2d 38,39 (5th Cir.1983); 11 WRIGHT &MILLER §2904. Under Fifth Circuit interpretation, the applicant "need not always show a 'probability' of success on the merits; instead, the movant need only present a substantial case on the merits when a serious legal question is involved and show that the balance of the equities weighs heavily in favor of granting the stay." Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir.1981). Application for stay under Rule 62(c) necessarily goes to the discretion of the court. Helms v. Cody, 1994 WL 424367 *2 (E.D.La.); see also, Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1003 (5th Cir.1969) ("It is well settled that 62(c) is expressive of the power in the courts to preserve the status quo pending appeal.").
With regard to the first factor and threshold inquiry, defendants maintain that their appeal raises "fundamentally important and serious legal issues," which merit a stay. Defs. Mot. at 3. It is without a doubt that these proceedings involve matters of utmost importance to the public, and that the appeal will further clarify the judiciary's capacity to respond specifically to the 1.5 million
-2-

Case 3:93-cv-00065-RAS Document 330 Filed 10/10/00 Page 3 of 7 PageID #: 3804
program-qualifying children, who remain without complete, preventive health care. Nevertheless, at this point in the inquiry, the court must be guided by the qualitative strength of the legal arguments on appeal, and not by the mere quantity of individuals affected by the suit.
At issue in this case is whether the limited jurisdiction of the federal courts accommodates actions for enforcement of a previously adopted consent decree, and the court's power to remedy breaches of such agreement. The core concern raised by the appeal is whether the state may evade certain obligations it had earlier negotiated and agreed to fulfill by virtue of its immunity under the 11th Amendment ofour Constitution. Pointing to United States v. Baylor University Medical Center, supra, defendants argue that the existence of an issue involving federal/state relations is necessarily a legal question favoring a stay, and that the 11th Amendment concerns in the instant action render the legal query serious, per se. Overlooked is the fact that Baylor presented a novel issue to the court. !d. at 40 (finding "no definitive ruling that would guide [the court]."). In issuing its opinion, this court fully considered the legal contentions ofthe defendants. It was aided, as will be the Court ofAppeals in its review ofthe decision, by a line ofcases which directly addresses the jurisdictional issue and provided the proper framework for the court's discussion. See Local Number 93, Int'l Ass'n ofFirefighters v. City ofCleveland, 478 U.S. 501 (1986); Kozlowski v. Coughlin, 871 F.2d 241 (2d Cir. 1989); Duran v. Carruthers, 885 F.2d 1485 (lOth Cir. 1989); Komyatti v. Bayh, 96 F.3d 955 (7th Cir. 1996).2 Even assuming, arguendo, that a serious legal question has been raised, the initial inquiry would not be satisfied; "a substantial case on the merits must also be tendered."
2Throughout the proceedings, defendants urged the court to follow the holdings of Lelsz v. Kavanagh, 807 F.2d 1243 (5th Cir. 1987), cert. dismissed, 483 U.S. 1057(1987), and Saahir v. Estelle, 47 F.3d 758 (5th Cir. 1995)(per curiam), which invalidated portions of a consent decree grounded solely in state law. This court found both cases uninstructive in considering the decree before it, since its provisions obviously have their roots in federal law.
-3-

Case 3:93-cv-00065-RAS Document 330 Filed 10/10/00 Page 4 of 7 PageID #: 3805

United States v. Louisiana, 815 F.Supp. 947, 950 (E.D. La. 1993). The defendants have failed to

present such a case. To support their claim, the defendants incorporate their post-trial brief and

arguments made at trial and underscore the general subject matter of the case. Citing to already-

dismissed arguments does not persuade the court of their possible merit on appeal.

Defendants also point to the court's interpretation of the consent decree as being a "serious

legal issue." Defs. Reply at 4. Again, although the matter interpreted, i.e., the scope of the care

provided to the program-qualifying children, is certainly more than meaningful to the public, the

legal issue is nothing more that the court's application of the basic rules of contract interpretation

and construction.

See

United

States

v.

Chroma/loy

American

Corp.,

158

F.3d

345,

349

(5

1
h

Cir.

1998); Lelsz, 824 F.2d at 373. Further, the court's interpretation will be afforded wide discretion

on appeal. See Williams v. Edwards, 87 F.3d 126, 131 (5th Cir.1996)("There is little question that

the district court has wide discretion to interpret ... a forward-looking consent decree.")(quoting

Alberti v. Klevenhagen, 46 F.3d 1347, 1365 (5th Cir.1995). Defendants have not demonstrated

either the existence of a serious legal issue and a substantial case or a likelihood of success on

appeal.

In contemplating a stay, the equities weigh decidedly against the defendants' position.

Defendants purport that not granting the stay would effectively deny them of their right to appeal

and would undermine their efforts to adequately prepare for the upcoming legislative session. Defs.

Mot. at 4; Aff. of Millwee at -,r 6. It is obvious, however, that the State is not in the untenable

position characteristic of a finding of irreparable harm. See, e.g., Baylor, 711 F.2d at 40; Ruiz, 650

F.2d at 574. Defendants have been ordered only to prepare corrective action plans. The court's

demand was the most mild remedy available in order to achieve a fair result, see United States v.

United Shoe Machinery Corp., 391 U.S. 244, 249-50 (1968), granting full freedom to the department

-4-

Case 3:93-cv-00065-RAS Document 330 Filed 10/10/00 Page 5 of 7 PageID #: 3806
to shape feasible improvements to program weaknesses. Far from imposing obligations that, if complied with, would render defendants' appeal moot or otherwise strip the defendants of the opportunity to challenge this court's decision, the August 14 Order merely directs the state to act in accordance with its self-assumed obligations. Cf Alberti v. Klevenhagen, 606 F. Supp. 478, 485 (S.D. Texas 1985).
In addition, the defendants' own actions belie the assertion of being faced with the impossible choice of compliance or appeal. The defendants have represented in a separate motion to extend the time in which to comply with the August 14 Order that much ofthe required labor has already been invested in creating a broad based remedial plan. Defs. Mot. for Extension at 2.3 Finally, in contrast to the contentions ofthe defendants, the court views the process of review and negotiation with respect to previously identified problem areas as part and parcel ofwhat should be the department's preparation for the legislative session.4
Harm to the plaintiffs will certainly result from a stay, in terms of their inability to obtain relief and the continued under performance ofthe THSteps program. Most importantly, any delay in compliance with the August 14 Order will result in further deterioration of the health and welfare ofthe program-qualifying children. As this court found, the state's violations ofthe consent decree have restricted child access to care and caused numerous instances ofotherwise preventable disease. Any further delay in acting in accordance with the terms of the consent decree will prolong the suffering.
3Indeed, the motion suggests that a comprehensive plan can be ready for submission by October 27, 2000, only two weeks later than the original deadline. !d.
4It appears that defendants have already been working in conjunction with the legislature on this matter. !d. (noting contributions of various legislative committees and bodies to the preparation of the action plans).
-5-

Case 3:93-cv-00065-RAS Document 330 Filed 10/10/00 Page 6 of 7 PageID #: 3807
Finally, the public interest would be best served in providing swift and effective remedy to the deficiencies in the program. As the defendants concede, "Texas has no greater interest than promoting, through preventative measures, the health and welfare of its youth." Defs. Mot. at 3. A stay pending appeal in this case is unsupported by the merits or the equities.
Defendants request, in the alternative, that a stay be imposed for the duration of the 2001 legislative session. In considering the state's motion, the court is awake to its responsibility in securing meaningful effect of its order, Alberti v. Klevenhagen, 46 F.3d 1347, 1365 (5th Cir. 1995), and understands that the success of THSteps and compliance with the consent decree may well depend on the actions of the legislative arm of this state. The court remains unpersuaded that the equities weigh in favor of delaying enforcement of the decree until after the legislative session. Defendants have stated that they are already engaged in coordinated action with certain members and committees of the legislature in preparing their corrective action plans.5 These efforts should ease, rather than increase, the department's burden in meeting the legislature's reporting demands.
In closing, the court wishes to express its general view of the posture that the state has assumed in this case, and in particular with the instant motion. Oft repeated in the parties' submissions is the fact that the relief decreed in this case will, each year, determine the health and future of more than 1.5 million needy children. The state made certain promises for the benefit of those children over four years ago, and now seeks to rescind their obligations by claiming immunity from enforcement. In addition, defendants' narrow, crabbed interpretation of the consent decree, if adopted, would only serve to restrict and dilute the rights of the children covered by it. After
5The court remains befuddled as to defendant's contention that only the legislature is capable of preparing and funding a remedial plan. Defs. Reply at 3, 8-9. Logic would suggest that the most effective and efficient means of securing funding would be for the department itself present a plan already evaluated as workable for the Health Commission.
-6-

Case 3:93-cv-00065-RAS Document 330 Filed 10/10/00 Page 7 of 7 PageID #: 3808 careful consideration of the merits of this case, the court identified areas of non-compliance and determined that enforcement of the decree was proper. It left the details of the remedy to the expertise ofthe administering agency ofthe program. However, it will not grant any additional and unwarranted leeway to the state in the face of continued harm to the class of seriously deprived children involved in this litigation. Accordingly, the motion for stay shall be, and is hereby,
DENIED. SIGNED this 61h day of October, 2000.
~·~~ 1 tam ayne u tlce Senior United States District Judge
-7-

 
 Case 3:93-cv-00065-RAS Document 335 Filed 10/23/00 Page 1 of 2 PageID #: 3826

UNITED STATES COURT OF APPEALS For the Fifth Circuit

u. s. COURT OF APPEALS
FILED

ocr 18 2000

No. 00-4~112
3:q3cv05

1-;HARI.ES R. FUL.aRUG~ Ill CLERK

JENEVA FRAZAR, Etc.; ET AL,

Q)

~

Pl ntil,f:i;i

<::>t>'- n0
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TcAhynVLDri-JLeEAolmexMdnMlPitiArenEzLeRoSf;AKnTrrI,.iCMNPecUATHnEChRRIddIiYhFTLlwFrdILSioFSarsIIrf;ePtSdBonSHRsMhp;;,OEeAhWRrRRMHeN,IUArAm;iRSlaiAYSaCAsnErRYroLyJYinAArLzSeLNGoTcAxKEAlah,taLLriG,IzalfNAadNrsELRiOeaZenCEWnnAoLead,AnEdxrVLaltaSTOraoOdsaLffNrrFnJa;iBhrieheeRmeLnxwOrIReWdtN;nemDNefnCo;ArixeAnfiaJReoFEahLnRrnRGAeEddEacWrMrF,

~:: ,
'n,og~

N
w
"
:E ~

Plaintiffs-Appellees,

VERSUS RICHARD LADD, Etc., ET AL,

Defendants,

eomHHSfUpeuSTlmaWAoAleaRyRtENnxIhTeCRCaeHTeSHPsiZxEEAeno,RaDNRrf,svDFTeoiIpTDCefEcLaxRefLoeAraxi,mDstDcsam,mDTsiCeSa,eMionDslxtmtCsa.aeDictsmoopoe.amna,fiCpsreM mstaorHemimicmoesoeenidsmpatfniiylloitciotsH;nnahysoieieedBofrhieaEnnilDVoHtsoEhofeoifRfroafLteatlhfYfHncthfiehdteceiKocaiTHiOrTailn;euOtaelhxmPlxBoa;SacaRs,nfcsaDIfaDpHMOSiDpGacNee.aecEDiracpTaiGvl.tiaT,ltIyitLrhcy;tBCceem;aOmEasWenORp,LpndIKTaILltNo,,cLDyIioAteAfyeM; Defendants-Appellants.

Appeal from the For the Eastern

United States District Court District of Texas, Beaumont

Case 3:93-cv-00065-RAS Document 335 Filed 10/23/00 Page 2 of 2 PageID #: 3827
Before DAVIS 1 JONES 1 and DeMOSS, Circuit Judges. BY THE COURT:
After full consideration of (1) appellants' motion for a stay of the district court's order which has been appealed to this Court; and (2) appellees' response to such motion, we are persuaded that the public interest will be better served by postponing any implementation of the district court's order until the factual findings and legal conclusions upon which such order is based can be reviewed by this Court.
Accordingly 1 we GRANT appellants' motion for a stay of the district court's order of August 14, 2000, during the pendency of this appeal.
Appellants' alternative motion for a stay until conclusion of the 77th Session of the Texas Legislature is DENIED.
2

 
 Case 3:93-cv-00065-RAS Document 566 Filed 08/22/05 Page 1 of 112 PageID #: 12070

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
PARIS DIVISION

Fl LED
U.S. DISTRICT COURT EASTERN DISTRICT OF TEXAS
AUG 2 2 2005

LINDA FREW, et al., Plaintiffs,
v.
ALBERT HAWKINS, et al., Defendants.

§

DAVID J. MALAND. CLERK

§ §

~-----

§

§

Civil Action No.

§

3:93-CA-065 WWJ

§

§

§

ORDER
Defendants' Rule 60(b) Motion for Relief From Judgment (Docket No. 406) has been presented for adjudication.
Background and Procedural History Filed on September I, 1993, this civil action concerns the alleged failure of the State of Texas to implement a Medicaid program that assures that indigent children and youth receive timely, comprehensive health care. The action was brought by a class of more than one and onehalf million indigent children in Texas who are entitled to health benefits through the Early Periodic Screening, Diagnosis and Treatment ("EPSDT") program.' See Docket No. I, 93; see also 42 U.S.C. §§ 1396a(a)(43),2 1396d(r).3 In Texas, the program is referred to as "Texas

1 The plaintiff class, as of2004, consists of2,706,903 children. D. Ex. 96.
2 Title 42 U.S.C. § 1396a(a) provides: A State plan for medical assistance must--
(43) provide for-(A) informing all persons in the State who are under the age of21 and who have been determined to be eligible for medical assistance including services described in section 1396d(a)(4)(B) of this title, of the availability of early and periodic screening, diagnostic, and treatment services as described in section 1396d(r) of this title and the need for age-appropriate immunizations against
I

Case 3:93-cv-00065-RAS Document 566 Filed 08/22/05 Page 2 of 112 PageID #: 12071
Health Steps," which is administered jointly by the federal government and the Texas Health and
Human Services Commission. EPSDT is intended to be "the nation's largest preventive health
program for children." H.R. 3299, 101" Cong. § 4213 (1989). It is "among the most important
programs that the Texas Department of Health runs." Docket No. 133 at 8 (internal quotes
omitted).
The purpose of the EPSDT program is to ensure that poor children receive comprehensive
health care at an early age, in order that they will develop fewer health problems as they grow
older. EPSDT is designed to provide health education, preventive care, and effective follow-up
care for conditions identified during check-ups. Preventive health care identifies health problems
that may respond to early treatment but, if left untreated, may instead lead to serious health
conditions. For example, a heart murmur detected during an EPSDT screening, if untreated,
vaccine-preventable diseases, (B) providing or arranging for the provision of such screening services in all cases where they are requested, (C) arranging for (directly or through referral to appropriate agencies, organizations, or individuals) corrective treatment the need for which is disclosed by such child health screening services, and (D) reporting to the Secretary (in a uniform form and manner established by the Secretary, by age group and by basis of eligibility for medical assistance, and by not later than April 1 after the end of each fiscal year, beginning with fiscal year 1990) the following information relating to early and periodic screening, diagnostic, and treatment services providedunder the plan during each fiscal year
3 This provision of federal law sets forth the minimum services which the state must provide under the EPSDT program, including: (I) screening services, including comprehensive health and developmental histories, comprehensive unclothed physical exams, appropriate immunizations, laboratory tests (including appropriate lead blood level assessments), and health education; (2) vision services, including diagnosis and treatment for vision defects; (3) dental services, including "relief of pain and infections, restoration of teeth, and maintenance of dental health;" (4) hearing services, including diagnosis and treatment for defects in hearing; and (5) "such other necessary health care ... to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered by the State plan."
2

Case 3:93-cv-00065-RAS Document 566 Filed 08/22/05 Page 3 of 112 PageID #: 12072
could lead to heart failure. Severe anemia, if untreated, could result in behavioral problems and reduced mental capacity. Other important components of the EPSDT program include immunizations, parental education, assistance with scheduling appointments, transportation assistance, and coordination of EPSDT and other programs serving Medicaid-eligible children.
After two years of extensive negotiation following the filing of this case, the parties proposed the Consent Decree to the Court in July of 1995. During a fairness hearing held in December of that year, the parties urged the Court to approve the proposed decree. The Court approved the Consent Decree as fair, reasonable, and adequate on February 16, 1996. Docket No. 135. Per the agreement of the parties, the Consent Decree expressly retains the Court's jurisdiction to rectify violations of its terms, and provides a mechanism to invoke this jurisdiction.4 On November 10, 1998, Plaintiffs filed their first Motion to Enforce Consent Decree. Docket No. 208. After nearly a year and a half of discovery and jurisdictional challenges, the Court held a hearing in March of2000 on Plaintiffs' motion (the "2000 Hearing"). Evidence was presented on multiple issues, including, inter alia: (1) proper implementation of the outreach program and delivery of required outreach reports; (2) operation of the State's managed care system; (3) Defendants' operation of toll-free numbers; and (4) provision of case management to all class members who need it, statewide. In a lengthy memorandum opinion and order, the Court found that the State had failed to comply with numerous provisions of the Consent Decree and that the Consent Decree is enforceable. See
4 Paragraph 303 of the Consent Decree states: "This Decree contemplates that the parties will reach agreement in the future about several issues. It further contemplates that Defendants' future activities will comport with the terms and intent of this Decree. If this proves to be incorrect, the parties may request relief from this Court. Absent emergency, no party may request relief from the Court without first providing the opposing party with one month's written notice."
3

Case 3:93-cv-00065-RAS Document 566 Filed 08/22/05 Page 4 of 112 PageID #: 12073
Frew v. Gilbert, 109 F. Supp. 2d 579 (E.D. Tex. 2000) (the "2000 Opinion"). In an attempt to judiciously consider the recommendations of state officials, the Court requested that the parties submit proposed corrective action plans, rather than the Court's unilaterally entering a comprehensive order of enforcement. Before submitting the proposed corrective action plans, however, Defendants brought two interlocutory appeals; and the Fifth Circuit stayed the Court's order requesting proposed corrective action plans during the pendency of the appeals. See Frazar v. Gilbert, 300 F.3d 530 (5th Cir. 2002).
One of the appeals involved Defendants' argument that a federal court's jurisdiction over a state official is limited by the Eleventh Amendment to requiring compliance with federal law. Defendants argued that the Consent Decree may not be enforced against them, to the extent that it goes beyond the scope of simple compliance with federal law. The Court rejected this argument, but the Court was overruled by the Fifth Circuit on appeal. Frazar, 300 F.3d at 530. The Fifth Circuit held that the Eleventh Amendment prevented enforcement ofthe Consent Decree, unless the violation of the Consent Decree was also a statutory violation of the Medicaid Act that imposed a clear and binding obligation on the State. !d. at 543. The Supreme Court, however, unanimously reversed the Fifth Circuit, holding that the Consent Decree is enforceable, in its entirety, under Ex Parte Young.5 Frew v. Hawkins, 540 U.S. 431 (2004). The Supreme Court noted that, "[t]he decree states that it creates 'a mandatory, enforceable obligation,"' in the process of holding that "[o]nce entered, a consent decree maybe enforced." !d. at 438,440
5 The Supreme Court also noted that "the state officials did not contend that the terms of the decree were impennissible under Ex Parte Young. Nor do they contend that the consent decree failed to comply with Firefighters. The officials challenge only the enforcement of the decree, not its entry." Frew v. Hawkins, 540 U.S. 431,438 (2004).
4

Case 3:93-cv-00065-RAS Document 566 Filed 08/22/05 Page 5 of 112 PageID #: 12074
(quoting Consent Decree ~ 302). On remand, the Fifth Circuit held that, absent the jurisdictional issues related to the Eleventh Amendment, it lacked interlocutory jurisdiction over the appeal.6 Frazar v. Hawkins, 376 F.3d 444 (5th Cir. 2004).
The Supreme Court, while clarifYing that the Consent Decree is valid and enforceable in its entirety, also explained that "the law's primary response to [the fear that enforcement of consent decrees can undermine the sovereign interests and accountability of state governments] has its source not in the Eleventh Amendment but in the court's equitable powers and the direction given by the Federal Rules of Civil Procedure." Frew, 540 U.S. at 441. It provided Defendants with a potential avenue for relief, FED. R. CIV. P. 60(b)(5) (hereinafter "Rule 60(b)(5)"), and directed the Court and the parties to two cases as examples of the application of Rule 60(b)(5) to consent decrees in the context of institutional reform litigation. It also explained that a "federal court must exercise its equitable powers to ensure that when the objects of the decree have been attained, responsibility for discharging the State's obligations is returned
promptly to the State and its officials." Id. at 442. Defendants thus filed the instant Rule
60(b)(5) Motion for Relief from Judgment ("Defendants' Rule 60(b) Motion") on November 4, 2004. Docket No. 406.
6 Defendants, on remand, "continue[d] to press its remaining arguments that the district court improperly expanded the scope of the consent decree beyond the agreement of the parties," Frazar, 376 F.3d at 446, although the Fifth Circuit declined to reach the merits of the appeal at that time.
5

Case 3:93-cv-00065-RAS Document 566 Filed 08/22/05 Page 6 of 112 PageID #: 12075
The Hearing and Memorandum Opinion The Court held a hearing from June 6-15,2005 (the "June Hearing"), on Defendants' Rule 60(b) Motion. Following the hearing, Plaintiffs and Defendants submitted briefs on the legal and factual issues involved in the instant motion. This memorandum opinion details the Court's findings of fact and conclusions oflaw based on the evidence presented at the June Hearing. Part One of the opinion discusses consent decrees and Rule 60(b)(5) motions generally, for the purpose of establishing the proper legal framework for the Court's analysis. Part Two details findings of fact and conclusions of law regarding Defendants' demand to dissolve the Consent Decree in its entirety. Part Three outlines findings of fact and conclusions oflaw regarding Defendants' alternative demand for relief. Part Four addresses whether Defendants' demanded relief satisfies the tailoring requirement set forth in Rufo v. Inmates ofSuffolk County Jail, 502 U.S. 367 (1992). Finally, Part Five contains the Court's analysis of whether Defendants have made reasonable efforts to comply with the Consent Decree, as required by Cooper v. Noble, 33 F.3d 540 (5th Cir. 1994).7
7 These requirements ofRufo and Cooper are detailed in Part I(B)(2), infra. 6

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PART ONE: THE NATURE OF CONSENT DECREES AND RULE 60(b)(5)
A. THE NATURE OF A CONSENT DECREE
The Court begins its analysis by describing the general nature of a consent decree, to
provide context for the Court's analysis as to whether the Consent Decree should be dissolved in
its entirety, as Defendants primarily demand. The Supreme Court has described a consent decree
as "an agreement between the parties to a case after careful negotiation has produced agreement
on [its] precise terms." Local Number 93, lnt'l Ass'n ofFirefighters v. City ofCleveland, 478
U.S. 501,522 (1986) (internal quotations omitted) (quoted in Alberti v. Klevenhagen, 46 F.3d
1347, 1364 (5th Cir. 1995)). Moreover, the Fifth Circuit has noted that "once the district court
enters the settlement as a judicial consent decree ending the lawsuit, the settlement takes on the
nature of a judgment." Ho v. Martin Marietta Corp., 845 F.2d 545, 548 (5th Cir. 1988). It is "an
agreement that the parties desire and expect will be reflected in, and be enforceable as, a judicial
decree that is subject to the rules generally applicable to other judgments and decrees."' Rufo,
8 Defendants argue that, based on general principles of contract law, the Consent Decree should be dissolved. See Defendants' Post-Hearing Brief at 4; Tr. Vol. VIII, p. 76 (closing argument of Defendants' counsel). If the Consent Decree is not a final judgment, Defendants argue, then they did not receive any consideration for undertaking the obligations set forth in it, and should thus be relieved of the obligations. Defendants' argument, however, rests upon their erroneous determination that the Court may declare that the Consent Decree is not a final judgment. Because "a consent decree is a final judgment that may be reopened only to the extent that equity requires," Rufo, 502 U.S. at 391, the Court rejects all of Defendants' arguments contingent upon the Court's determining that the Consent Decree is not a final judgment for the claims on which it is based. See Williams v. Edwards, 87 F.3d 126, 130 (5th Cir. 1996); Ho v. Martin Marietta Corp., 845 F.2d 545, 547 (5th Cir. 1988). By definition, a consent decree is a final judgment for the claims it resolves, and its sui generis nature has seemingly caused confusion among Defendants. Additionally, Defendants received consideration for entering into the Consent Decree when they were allowed to extensively negotiate its terms and avoid trial. As the Fifth Circuit has recoguized, "[t]he very nature of a consent agreement is such that parties will agree to act in ways they do not believe the Constitution requires in order to save themselves the time, expense, and inevitable risk oflitigation." Cooper v. Noble, 33 F.3d 540, 545 (5th Cir. 1994) (quoting United States v. Armour & Co., 402 U.S. 673, 681 (1971)). Defendants apparently determined that it was more beneficial to avoid the time and expense of trial, negotiate the terms, and enter into a consent decree rather than
7

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502 U.S. at 378. A consent decree is not court-imposed; rather, it is a voluntary agreement
between the parties involved in litigation that is then evaluated for fairness, and potentially
accepted by the Court and entered as a judgment. In the instant case, as with all consent decrees, the Court was not a party to the Consent Decree negotiations and did not have a hand in crafting
the obligations contained therein. In Frew v. Hawkins, 540 U.S. 431 (2004), the Supreme Court found, in the instant action,
that although the Consent Decree implements the Medicaid statute "in a highly detailed way,
requiring the state officials to take some steps that the statute does not specifically require ...
[t]he same could be said ... of any effort to implement the general EPSDT statute in a particular
way." !d. at 439. Defendants thus voluntarily chose the result of its negotiations with Plaintiffs,
the Consent Decree, to be its judicially enforceable method of implementing the general federal
EPSDT statute.
B. RULE 60(b)(5)
1. Rule 60(b)(5) Generally
Rule 60(b)(5) provides, in relevant part,
On motion and upon such terms as are just, the court may relieve a party ... from a final judgment, order, or proceeding for the following reasons ... (5) the judgment has been satisfied, released, or discharged ... or it is no longer equitable that the judgment should have prospective application.
proceed to a trial on the merits and potentially be allowed minimal input regarding relief Plaintiffs may have sought. Defendants' argument that it received no consideration thus lacks merit; indeed, the converse is more accurate. Plaintiffs chose to enter into the Consent Decree rather than pursuing a trial on the merits, undoubtedly with the expectation that Defendants would comply with their obligations under the Consent Decree. Defendants now seek to have the Consent Decree dissolved in its entirety, despite their failure to even attempt compliance with certain provisions and recent failure to comply with others. See Frew v. Gilbert, 109 F. Supp. 2d 579 (E.D. Tex. 2000); see also discussion infra Part V (detailing Defendants' attempts to comply with the Consent Decree).
8

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As the Supreme Court wrote in the instant case, "[t)he Rule [60(b)(5)) encompasses the traditional power of a court of equity to modify its decree in light of changed circumstances." Frew, 540 U.S. at 441. Under Rule 60(b)(5), the Court may relieve Defendants from the Consent Decree if the judgment has been satisfied, released, or discharged. Defendants do not argue that the Consent Decree has been satisfied, released, or discharged; instead, they argue that Defendants are in compliance with federal Medicaid law, thus rendering the Consent Decree unnecessary and its enforcement inequitable. In other words, Defendants argue that the ends of the Consent Decree have been met, not that the obligations within the Consent Decree have been satisfied, released, or discharged.9 Defendants thus proceed with this motion under the second portion of Rule 60(b)(5), insisting that "it is no longer equitable that the judgment should have prospective application."
Rule 60(b)(5) is a form of equitable relief. See Frew, 540 U.S. at 441; Waste Mgmt. of Ohio, Inc. v. City ofDayton, 132 F.3d 1142, 1145 (6th Cir. 1997) ("Equitable considerations are clearly factors a district court can address when they are related to a court's power and duty to modify, interpret, and oversee a consent decree."). "Equity" is defined as "[t]he recourse to principles ofjustice to correct or supplement the law as applied to particular circumstances," or more generally, "[t)he body of principles constituting what is fair and right." BLACK'S LAW DICTIONARY (8th ed. 2004). Remedies grounded in equity, therefore, take into account all factors that contribute to a just, fair, and right outcome. In order to determine whether to order
9 See discussion infra Part I(B)(3) for a detailed explanation of the parties' arguments. 9

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equitable relief, the Court examines the entire record-the facts and procedural history of the case, in addition to the actions ofthe parties throughout the progression of the case. 10
2. Legal Standard for Rule 60(b)(5) Relief In Frew, 540 U.S. at 441, the Supreme Court cites two cases as examples of the application of Rule 60(b) to consent decrees in the context of institutional reform litigation: Rufo, 502 U.S. 367 and Philadelphia Welfare Rights Org. v. Shapp, 602 F.2d 1114 (3rd Cir. 1979). An
overview of these two Rule 60(b) application cases provides a necessary introduction to the legal
framework for the Court's analysis. In Rufo, the Supreme Court adopted a flexible standard for determining whether to
modify an institutional reform consent decrees and announced a two-part test regarding their modification. 502 U.S. 367. Rufo involved a consent decree entered as a result of litigation regarding alleged unconstitutional conditions at Suffolk County Jail. A change in factual circumstance-an upsurge in the population of pretrial detainees-led the petitioners to file a Rule 60(b) motion for modification of a decree provision prescribing single-bunking. 11 The district court denied petitioners' Rule 60(b) motion, which was affirmed by the United States Court of Appeals for the First Circuit, although the Supreme Court found that the district court applied the wrong consent decree modification standard in its analysis. !d. In announcing the flexible
°1 For example: "Under the doctrine of unclean hands, he who commits inequity is not entitled to
equitable relief." Regional Properties, Inc. v. Real Estate Consulting Co., 752 F.2d 178, 183 (5'h Cir. 1985) (citations omitted).
11 The term "single-bunking" means assigning only one inmate to each cell. See Rufo, 502 U.S. at 374. The petitioners in Rufo also argued a change in law warranting modification, although Rule 60(b) analysis with respect to a change in law is inapposite to Defendants' Rule 60(b) Motion based on changed factual circumstances.
10

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modification standard applicable in the instant case, the Supreme Court explained a two-part test: {I) the party seeking modification of the consent decree must establish that a significant change in facts or law warrants revision of the decree, and (2) the court should determine whether the proposed modification is suitably tailored to the changed circumstances. See id. at 392.
A flexible standard is desirable, the Rufo Court reasoned, because (I) the extended life of consent decrees increases the likelihood that significant changes will occur and (2) it serves the public's interest in the sound and efficient operations of its institutions. 12 !d. at 380-81. The Rufo Court also clarified that, within the "flexible standard" analysis,
[T]he moving party bears the burden of establishing that a significant change in circumstances warrants modification of a consent decree. No deference is involved in this threshold inquiry. However, once a court has determined that a modification is warranted, we think that principles offederalism and simple common sense require the court to give significant weight to the views ofthe local government officials who must implement any modification. !d. at 392 n.l4. Rufo provides a non-exhaustive list of three significant changes in factual conditions
sufficient to support modification: (I) if the changed conditions "make compliance with the
decree substantially more onerous;" (2) if the decree "proves to be unworkable because of unforeseen obstacles;" or (3) if"enforcement of the decree without the modification would be detrimental to the public interest." Rufo, 502 U.S. at 384; see Thompson v. United States HUD, 404 F.3d 821, 827 (4th Cir. 2005).
12"[T]he public interest is a particularly significant reason for applying a flexible modification standard ... because such decrees 'reach beyond the parties involved directly in the suit and impact on the public's right to the sound and efficient operation of its institutions."' Rufo, 502 U.S. at 381 (citing Heath v. DeCourcy, 888 F.Zd 1105, 1009 (6th Cir. 1989)). Indeed, the public interest is undoubtedly a significant concern in the context of the implementation of Texas' EPSDT program.
II

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If the Court determines that Defendants have met their "burden of establishing either a change in fact or in law warranting modification of a consent decree, the district court should determine whether the proposed modification is suitably tailored to the changed circumstance."13 !d. at 391. The Rufo Court also warned that, although "a district court should exercise flexibility in considering requests for modification of an institutional reform consent decree, it does not follow that a modification will be warranted in all circumstances." 502 U.S. at 383.
In Shapp, 602 F.2d 1114, a pre-Rufo case, the district court ordered modification of an institutional reform consent decree in light of changed circumstances that were beyond the defendants' control and were not contemplated by the court or the parties when the decree was entered. The consent decree at issue in Shapp was entered as a result of litigation over Pennsylvania's EPSDT program, and the defendants were seeking to modify or vacate the decree based on (1) the exemplary performance of Pennsylvania's program, and (2) inability to comply, after a good faith effort, with certain terms ofthe decree. The district court modified the decree in three respects after finding that the defendants had made a good faith effort at compliance, but circumstances beyond the defendants' control and not contemplated by the court or parties "put achievement of the [provisions' requirements] beyond reach."14 !d. at 1120-21. The court denied the defendants' motion to vacate the decree. !d.
13 See discussion in Part IV, infra, for explication and application of tbe Rufo tailoring requirement.
14 Specifically, the Shapp Court modified tbe consent decree in the following three ways: (I) the strict numerical quotas for annual EPSDT screens, applicable for tbe years 1976 and 1977, were eliminated; (2) the related provision for payment of 133% of tbe cost of such screens to eligible but unscreened persons was eliminated; and (3) the defendants' duty to provide treatment for discovered abnormalities within 60 days of tbe EPSDT examination in which they were discovered was qualified by permitting relief from the obligation where good reason for a greater length of time is documented in tbe recipient's case record. 602 F.2d at 1119.
12

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Together, Rufo and Shapp: (1) instruct the Court to apply a flexible standard that
contemplates federalism concerns with respect to modification of a consent decree based on
changed circumstances under Rule 60(b)(5) and (2) illustrate that not all changed circumstances
should be considered in the analysis. Instead, an example of a relevant significant change in
circumstances is one that is unanticipated and beyond the defendants' control. 15
After the Supreme Court announced Rufo's flexible standard, the Fifth Circuit clarified
the Rule 60(b) standard for modification of a consent decree in the context of institutional reform
litigation, based on changed factual circumstances, in Cooper v. Noble. 33 F.3d 540, 544 (5th
Cir. 1994). The Cooper Court upheld a United States Magistrate Judge's denial of the
defendants' Rule 60(b) motion in a pre-Prison Litigation Reform Act case applying the Rufo Rule
60(b) standard. 16 The court explained:
When significant changes in factual conditions make a consent judgment unworkable, make compliance substantially more onerous, or make enforcement detrimental to the public interest, a court has the discretion to modify the judgment. However, the Supreme Court [in Rufo] never suggested that changed factual circumstances in and of themselves were sufficient grounds for relief from a judgment. In fact, the Court insisted that the petitioning party must "make a reasonable effort to comply with the decree." Thus, even if we take as true all the alleged changes in factual conditions, the county officials are far from meeting their burden under Rufo. The county officials must also: (1) show that those changes affect compliance with, or the workability or enforcement of, the final judgment, and (2) show that those changes occurred despite the county officials' reasonable efforts to comply with the judgment.
15 The Court notes that the Shapp Court also did not rely on the Pennsylvania EPSDT program's alleged exemplary performance; instead, its conclusions were based on the inability, after a good faith effort, to comply with the terms of the consent decree at issue.
16 Though Cooper involved prison litigation, a class of cases whose remedies are now governed by the standards set forth in 18 U.S.C. § 3626, it illustrates the Fifth Circuit's standard for modification of consent decrees based on changed factual circumstances, under Rule 60(b), in the context of institutional reform litigation.
13

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Cooper, 33 F.3d at 544 (quoting Rufo, 502 U.S. at 385) (citations omitted). A change in factual circumstances, without more, is thus insufficient to warrant modification of a consent decree in the Fifth Circuit; the moving party must additionally show how the change in factual circumstances warrants modification of the consent decree by "show[ing] that those changes affect compliance with, or the workability or enforcement of, the final judgment."17 Cooper, 33 F.3d at 544; cf Rufo, 502 U.S. at 384. Stated more simply, the Fifth Circuit clarified that consent decree modification under Rule 60(b) requires satisfaction of the Rufo test, in addition to a showing that the moving party made reasonable efforts to comply with the judgment, similar to Shapp.
3. The Parties Misunderstand the Applicable Rule 60(b)(5) Standard The Court now addresses the parties' arguments with respect to the Rule 60(b)(5) legal standard that the Court should employ. The Court finds that both parties are mistaken as to the applicable standard; instead of applying the standards the parties proffer, the Court will apply the flexible standard as set forth in Rufo, 502 U.S. 367, Shapp, 602 F.2d 1114, Cooper, 33 F.3d 540, and their progeny, as detailed in Parts I(B)(2) and I(B)(4).
17 Indeed, the moving party must "satisfy a heavy burden to convince a court that it agreed to the decree in good faith [and] made a reasonable effort to comply with the decree" in order to be granted equitable relief under Rule 60(b)(5). Rufo, 502 U.S. at 383; see Sierra Club v. Meiburg, 296 F.3d 1021, 1034 (11th Cir. 2002) ("A party seeking to modify a consent decree has a high hurdle to clear and the wind in its face."). These good faith and reasonable effort requirements follow logically for a form of relief grounded in equity.
14

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Defendants' Arguments The crux of Defendants' argument in support of their Rule 60(b) motion is that they are currently in compliance with federal Medicaid law,18 which they assert is sufficient to warrant dissolution of the Consent Decree either in its entirety, or for the areas of Texas under managed care, tmder Rule 60(b)(5). Tr. Vol. VIII, pp. 77, 84-85, 111 (closing argument of Defendants' counsel); Defendant's Post-Hearing Brief at 3. Because they are currently in compliance with federal law, Defendants argue, the objects of the Consent Decree have been attained, and "it is no longer equitable that the judgment should have prospective application." !d. at 2, 5 (citing Rule 60(b)(5)). Defendants argue that "[w]hen it was entered, and throughout the ten years and more of its application, the Consent Decree could have only one legitimate object-to ensure that Texas complied with federal law regarding the administration of its EPSDT program." !d. Alternatively, Defendants argue that they have established compliance with federal law in all "Urban Areas"19 of the State; thus, the objects ofthe Consent Decree have been attained, and it should have no prospective application, with respect to these areas. In sum, as articulately summarized at the June Hearing and outlined in Defendants' Post-Hearing Brief, Defendants
18 Specifically, Defendants argue that Texas Health Steps currently "provide[s] for ... informing" all eligible class members and "provide[s] for ... the provision of' all EPSDT services "where they are requested," pursuant to 42 U.S.C. § 1396a(a)(43). See Defendants' Rule 60(b) Motion at 10-15.
19 The term "Urban Areas," as Defendants define it, refers to the counties served by the Medicaid managed care organizations ("MCOs") that have entered into the standardized Contract for Services with the Texas Health and Human Services Commission (the "STAR Contract"). See D. Ex. 49; D Ex. 51 (listing the following as STAR MCOs: Amerigroup (Dallas, Harris, Tarrant and Travis service areas); Community First (Bexar service area); Community Health Choice (Harris service area); El Paso First (El Paso service area); First Care (Lubbock service area); Parkland (Dallas service area); Superior (all service areas); Texas Children's (Harris service area)); P. Ex. MAN-2. The STAR Program is the name of the Texas Medicaid managed care program enacted by the State legislature. P. Ex. MAN-2 at 83.
15

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demand only two alternative forms of relief, each based solely on compliance with federal law: (1) dissolution of the Consent Decree in its entirety, or (2) dissolution of the Consent Decree in its entirety for all Urban Areas of Texas. Defendants' Post-Hearing Brief at 1-4, 75-79; Tr. Vol. VIII, p. 88 (closing argument of Defendants' counsel)?0
Notably, neither in their original Rule 60(b) Motion, at the June Hearing, nor in their Post-Hearing Brief do Defendants cite an applicable Rule 60(b) standard for modification or dissolution of consent decrees. Instead, they simply recite the plain language of Rule 60(b)(5); they do not discuss either of the two cases cited by the Supreme Court in its discussion of Rule
60(b)(5) in Frew, 540 U.S. 431, nor do they discuss any other cases applying Rule 60(b)(5) or
addressing the burden placed on a party moving for modification or dissolution of a consent decree under Rule 60(b)(5).
Additionally, Defendants do not argue that they are in substantial compliance with the Consent Decree; rather, they argue that they are in compliance with federal law and that such compliance, regardless of compliance with the Consent Decree, is sufficient to warrant dissolution under Rule 60(b)(5). See Defendants' Post-Hearing Brief at 78-79; Tr. Vol. VIII, pp. 76-88 (closing argument of Defendants' counsel).
20 In Defendants' Rule 60(b) motion, they also argue that the Court should account for the State's compliance with the terms of the decree in modifying it and remove provisions with no prospective application. Defendants' Rule 60(b) Motion at 7-21. Defendants' Post-Hearing Brief, however, specifically clarifies that Defendants seek only two alternative forms of relief. See Defendants' PostHearing Briefat 1-4. Defendants' closing argument at the June Hearing also omitted any mention of modification in part, other than complete dissolution with respect to the Urban Areas of the State. See Tr. Vol. VIII, pp. 76-88 (closing argument of Defendants' counsel). The Court thus interprets Defendants' failure to urge the arguments mentioned in their original Rule 60(b) motion as an abandonment of them. Alternatively, to the extent Defendants believe they have not abandoned these additional arguments, the Court finds that Defendants have failed to meet their burden to prove significant changed factual circumstances warranting modification of the Consent Decree. See discussion supra Part I(B)(2).
16

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Plaintifft' Arguments Plaintiffs contend that Defendants are not entitled to Rule 60(b)(5) relief, because: (1) compliance with federal law is insufficient, by itself, to warrant dissolution of the Consent Decree; (2) Defendants are not in compliance with federal law; (3) Defendants have never attempted to comply, in good faith, with certain provisions ofthe Consent Decree; and (4) the objects of the Consent Decree have not been attained. See Plaintiffs' Post-Hearing Brief at 3-l 0; Tr. Vol. VID, pp. 89-90, 99 (closing argument of Plaintiffs' counsel). In support of their response to Defendants' request for dissolution of the Consent Decree in its entirety, Plaintiffs cite a legal standard set forth in Missouri v. Jenkins, 515 U.S. 70 (1995).21 Plaintiffs argue that Defendants cannot satisfy their burden for dissolution under Rule 60(b), in that they have not shown a good faith commitment to the whole of the Consent Decree's provisions, as they intentionally violated or ignored, inter alia,~~ 17, 35, 37, 171 and 223 thereof. Plaintiffs' Post-Hearing Brief at 5; Plaintiffs' Motion for Sanctions (Docket No. 429). In support of their response to Defendants' request for modification of the Consent Decree to exclude the Urban Areas of the State, Plaintiffs argue that Defendants have not met Rufo's requirements for modification under Rule 60(b)(5). !d. at 6-7. Plaintiffs thus distinguish between the Rule 60(b)(5) standard for modification of institutional reform consent decrees and the standard for dissolution. Defendants' managed care companies, argue Plaintiffs, remain in disarray, their outreach efforts have no effect or even make things worse, and their overall outcomes are poor. !d.
21 For a discussion of the Missouri v. Jenkins standard, see discussion infra Part I(B)(3)(a). 17

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a. The Rufo Flexible Standard Applies to Both Modification and Dissolution of Consent Decrees While Defendants do not cite a legal standard for Rule 60(b) beyond tbe text of the rule itself, Plaintiffs distinguish between the standard for consent decree modification and the standard for consent decree dissolution. See Plaintiffs' Post-Hearing Brief at 3-7. The applicable legal standard in the Fifth Circuit for both types of relief, however, is that announced in Rufo and applied in Cooper. First, the Supreme Court does not draw a distinction between the two types of relief in Rufo or in Frew, nor does the Fifth Circuit draw a distinction in Cooper. Indeed, the defendants in Rufo moved to vacate the decree as well as to modify it and, on remand, the district court applied a single flexible standard for determining whether either type of relief was warranted under Rule 60(b). See Rufo, 502 U.S. 367; Inmates ofSuffolk County Jail v. Rufo, 148 F.R.D. 14 (D. Mass. 1993). The defendants in Cooper also demanded relief from tbe whole of the consent judgment via a Rule 60(b) motion, and the Magistrate Judge applied Rufo's flexible standard in the process of denying their motion. Cooper, 33 F.3d at 540. Second, multiple courts have addressed and dismissed similar arguments with respect to a differing standard for consent decree modification versus that for consent decree dissolution under Rule 60(b)(5). For example, the defendants in Alexander v. Britt, 89 F.3d 194 (4th Cir. 1996), argued that the standard set forth in Board ofEducation ofOklahoma City Public Schools v. Dowell, 498 U.S. 237 (1991), applies to Rule 60(b) motions for dissolution, as opposed to modification, of a consent decree. Rufo, the defendants argued, applies only to Rule 60(b) motions to modify a consent decree. The Alexander Court harmonized the Rufo and Dowell
18

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standards, by explaining that the two formulations of the Rule 60(b) standard, announced by the Supreme Court in two consecutive terms, simply illustrate the flexibility ofthe standard and the need to tailor the inquiry to the specific context of the case. 89 F.3d at 197. The Alexander Court thus found that a court should employ a single, flexible standard for either modification or dissolution of a consent decree under Rule 60(b). Id.; see Rufo, 502 U.S. at 380 ("The same theme [the need for flexibility in administering consent decrees] was repeated in our decision last Term in [Dowell]."); see also Nat'! Labor Relations Board v. Harris Teeter Supermarkets, 215 F.3d 32, 36 (D.C. Cir. 2000) ("Dowell and Rufo must be read together ....").
Finally, employing a unified flexible standard for consent decree modification and dissolution under Rule 60(b) is simply logical. Because both types of relief are forms of equitable relief, and both may be demanded under Rule 60(b), a single standard that takes into account equitable considerations pertaining to the unique circumstances of each case (as the Rufo standard does) is the most efficient standard under which to determine whether significant changed factual circumstances exist that warrant any change in, or relief from, obligations contained within a consent decree.
Furthermore, the Missouri v. Jenkins standard is inapplicable to the instant case. 515 U.S. 70 (1995). In Jenkins, Missouri demanded that it be relieved of the district court order that required the State to fund remedial quality education programs in the context of school desegregation litigation. In its analysis, the Jenkins Court discussed "the showing that must be made by a school district operating under a desegregation order for complete or partial relief from that order," a test it had previously articulated in Freeman v. Pitts, 503 U.S. 467 (1992). !d. at 88-89. However, Jenkins did not involve modification or dissolution of a consent decree, nor
19

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was the defendants' motion for relief from the judgment's obligations made under Rule 60(b). The Court thus declines to apply the Jenkins standard, as urged by Plaintiffs, as it does not apply to either the Rule 60(b)(5) motion before the Court or to the type of judgment from which Defendants demand relief.
b. Defendants Misstate the Objects of the Consent Decree Defendants' main argument in support of their demand for dissolution of the Consent Decree in its entirety is that the objects of the Consent Decree bave been attained. As the Supreme Court admonished, "when the objects of the decree have been attained, the responsibility for discharging the State's obligations [must be] returned promptly to the State and its officials." Frew, 540 U.S. at 442. Defendants thus argue that the only legitimate object of the Consent Decree, to ensure that Texas complied with federal law regarding the administration of its EPSDT program, has been attained, and it is thus "no longer equitable that the judgment should have prospective application." Frew, 540 U.S. at 442; Defendants' Post-Hearing Brief at 3; Rule 60(b)(5). Defendants' argument, therefore, can be interpreted as two discrete assertions: (I) the sole object ofthe Consent Decree is to ensure compliance with federal law, and (2) Defendants are currently in compliance with federal law. Because the Court finds that compliance with federal law is not the sole object of the Consent Decree, the second assertion need not be addressed.22
22 Defendants' argument can also be interpreted as asserting that compliance with federal law, by itself, is sufficient to warrant relief under Rule 60(b)(5). This alternative interpretation is addressed in Part I(B)(3)(c), infra.
20

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Plaintiffs respond to Defendants' argument by citing Rufo's admonishment that a court should not rewrite the decree to reduce it to the constitutional minima. Rufo, 502 U.S. at 391. In
Rufo, the Supreme Court stated: A proposed modification should not strive to rewrite a consent decree so that it conforms to the constitutional floor. Once a court has determined that changed circumstances warrant a modification in a consent decree, the focus should be on whether the proposed modification is tailored to resolve the problems created by the change in circumstances. A court should do no more, for a consent decree is a final judgment that may be reopened only to the extent that equity requires. The court should not "tum aside to inquire whether some of [the provisions ofthe decree] upon separate as distinguished from joint action could have been opposed with success if the defendants had offered opposition."
!d. at 391-92 (quoting United States v. Swift & Co., 286 U.S. 106, 116-17 (1932)). Plaintiffs thus argue that Defendants' assertion that the sole object of the Consent Decree is to ensure compliance with federal law implicitly requires the Court to rewrite the Consent Decree to conform to the constitutional floor, in clear violation of Rufo. The Court finds Plaintiffs'
argument to be meritorious. In rejecting Defendants' argument, it is sufficient to find that compliance with federal law
is not the sole object of the Consent Decree. First,~ 6 of the Consent Decree states: To address the parties' concerns, to enhance recipients' access to health care, and to foster the improved use of health care services by Texas EPSDT recipients, the parties agree and the Court orders Defendants to implement the following changes and procedure for the Texas EPSDT program.
The Consent Decree itself does not refer to mere compliance with federal law as its object; rather, it speaks to the broader goals of enhancing recipients' access to health care and improving the use of health care services by Texas EPSDT recipients. The Consent Decree's stated purpose is, moreover, not limited by importing any reference to federal Medicaid law in~ 6. Finally, the
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Consent Decree implements the Medicaid statute "in a highly detailed way, requiring the state officials to take some steps that the statute does not specifically require." Frew, at 540 U.S. at 439. To interpret the sole object ofthe Consent Decree to ensure compliance with something less than that which is stated in the Consent Decree itself would be akin to rewriting the Consent Decree to conform to the constitutional floor. Such action is clearly prohibited by the Supreme Court's holding in Rufo. See 502 U.S. at 391-92.
Second, as the Fifth Circuit has noted, "[t]he very nature of a consent agreement is such that parties will agree to act in ways they do not believe the Constitution requires in order to save themselves the time, expense, and inevitable risk oflitigation." Cooper, 33 F.3d at 545. If the sole object of the Consent Decree is compliance with the minimum requirements of federal law, as Defendants argue, and Defendants were thus entitled to dissolution of the Consent Decree under Rule 60(b)(5), without reference to the naturally enhanced obligations of the Consent Decree, Plaintiffs would not receive the benefits for which they bargained; and Defendants would never be required to comply with the obligations which they undertook in exchange for saving the time, expense, and inevitable risk oflitigation.
Taking into account the Consent Decree's statement as to its purpose, Cooper's explication of the nature of a consent decree, and Rufo's admonishment to avoid rewriting a consent decree to merely conform to the constitutional floor, the Court disallows Defendants' argument that the sole object of the Consent Decree is to ensure that Texas complies with federal law regarding the administration of its EPSDT program. Because it is unnecessary to delineate the objects of the Decree beyond discarding Defendants' arguments, the Court abstains from doing so.
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c. Compliance With Federal Law, Alone, is Insufficient to Warrant Rule 60(b)(5) Relief Given the Court's rejection of Defendants' argument that compliance with federal law is the sole object of the Consent Decree, the alternative interpretation of Defendants' argument will be addressed, i.e., that compliance with federal law, by itself, is sufficient to warrant relief under Rule 60(b)(5). For this assertion to be accurate, compliance with federal law must be sufficient, by itself, to prove significant changed circumstances warranting dissolution ofthe Consent Decree, and dissolution of the Consent Decree must be suitably tailored to this changed circumstance. See Rufo, 502 U.S. at 384-91. The Court finds that this is not the case. While compliance with federal law may be one factor in assessing changed factual circumstances, it is neither the focus of the Court's inquiry nor dispositive of the merits of Defendants' Rule 60(b) Motion. Defendants cite no authority for the assertion that compliance with federal law is sufficient, alone, to warrant relief under Rule 60(b), nor has the Court discovered any inquiry into compliance with federal law in the context of a Rule 60(b) motion for relief from a consent decree. Instead, courts addressing modification or dissolution of a consent decree since 1992 are bound by Rufo's flexible standard and its requirements to prove both that significant changed factual circumstances warrant modification of the consent decree and that the demanded relief is suitably tailored to the changed circumstances. Rufo, 502 U.S. at 384-91; see Frew, 540 U.S. at 441. Defendants' contention that compliance with federal law, without more, is sufficient to warrant relief under Rule 60(b) improperly circumvents both prongs of the Rufo test.
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Furthermore, the Supreme Court noted Defendants' argument that "[a] State in full compliance with federal law could remain subject to federal court oversight through a course of judicial proceedings brought to enforce the consent decree." Frew, 540 U.S. at 438. The Supreme Court, cognizant of Defendants' concern that it could be bound by the Consent Decree despite compliance with federal law, unanimously held that the Consent Decree is enforceable in its entirety unless and until a federal court grants a Rule 60(b)(5) motion. Frew, 540 U.S. at 431. It did not mention federal law compliance as a factor in the Rule 60(b)(5) analysis; rather, it directed the Court to Rufo and Shapp as examples ofthe proper application of Rule 60(b)(5) to modification of institutional reform consent decrees, neither of which discusses the merits of the claims on which a consent decree is based.
Dissolution based on mere compliance with the minimum requirements of federal law is, additionally, inequitable, because it would permit perpetual re-litigation ofthe merits of Plaintiffs' claims. In choosing to voluntarily enter into the Consent Decree, Defendants waived the opportunity to litigate the merits of the claims in Plaintiffs' Third Amended Complaint in exchange for negotiating the terms of the Consent Decree and avoiding the time, expense, and inevitable risk oflitigation. See Cooper, 33 F.3d at 545. Through their argument that compliance with federal law necessarily warrants relief under Rule 60(b)(5), however, Defendants are seemingly attempting tore-litigate the claims underlying the Consent Decree. If the basis for a meritorious Rule 60(b) motion is that the claims underlying the consent decree are not meritorious, then parties to consent decrees would be permitted to file periodic Rule 60(b) motions asserting compliance with federal law and, in effect, continually re-litigate the underlying claims until a court determines the defendants are in compliance with federal law and
24

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the decree is dissolved. The party filing the Rule 60(b) motion would potentially be able to eliminate consent decree obligations, even if there is no attempted compliance with its legally enforceable terms, no showing that conformity to federal law makes compliance with the consent decree substantially more onerous or unworkable, and no showing that the requested relief is sufficiently tailored to the changed factual circumstances. See Rufo, 502 U.S. at 384-91; Cooper, 33 F.3d at 545. It follows that the parties opposing dissolution would not enjoy the benefits for which they bargained or the judicially enforceable obligations upon which they relied in entering into the consent decree; and the parties seeking dissolution would paradoxically be entitled to equitable relief despite their inequitable behavior. A Rule 60(b) motion is not a vehicle by which Defendants may disregard the voluntary obligations contained in the Consent Decree, allow time to pass, and then litigate the underlying claims in hopes of never actually complying with the its terms.
Based on the absence of authority for Defendants' argument, contradiction with the Rufo Rule 60(b) consent decree modification standard and the inequities involved in simply ruling on the merits of the claims which were the basis for negotiation and entry of the Consent Decree, the Court rejects Defendants' argument that compliance with federal law, by itself, is sufficient to warrant Rule 60(b)(5) relief. Because Defendants' asserted Rule 60(b) standard is found to be wanting, the Court abstains from determining whether Defendants are currently in compliance with federal Medicaid law.
Additionally, it is noted that Plaintiffs adamantly object to the assertion that Defendants are currently in compliance with federal Medicaid law. See Plaintiffs' Post-Hearing Brief at 162181; Tr. Vol. VIII, pp. 89-90,99 (closing argument of Plaintiffs' counsel). Specifically,
25

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Plaintiffs argue, inter alia, that: (1) Defendants' protocols are not designed to effectively inform class members about EPSDT, in violation of 42 U.S.C. § 1396a(a)(43)(A) and 42 C.F.R. § 441.56(a)(1); (2) Medical checkups are incomplete, in violation of 42 U.S.C. § 1396a(a)(43)(B); (3) "requests" for medical checkups go umnet; and (4) Defendants do not "arrange" follow-up treatment that class members need, in violation of 42 U.S.C. § 1396a(a)(43)(C). Id.
As the parties have either failed to cite the proper standard for Rule 60(b) relief, or have cited to a standard inapplicable to the instant case, the Court will hereafter interpret the parties' arguments to comply with the appropriate standard as set forth in Frew, Rufo, Shapp and Cooper. By following relevant precedent, taking general equitable considerations into account and "ensur[ing] that when the objects of the decree have been attained, responsibility for discharging the State's obligations is returned promptly to the State and its officials," Frew, 540 U.S. at 442, the Court will determine whether, and to what extent, Rule 60(b)(5) relief is warranted in the instant case.
4. Overview of Cases Applying Rule 60(b) to Consent Decrees ill this section, the Court analyzes cases determining whether significant changes in circumstances warranting revision of a consent decree under Rule 60(b) exist, in order to inform the Court's determination of whether Defendants have met their burden in the instant case. Cases applying Rufo's tailoring requirement are discussed in Part IV, irifra.
a. Cases Finding A Significant Change in Factual Circumstances Generally, in the analysis of whether to modify a consent decree, courts first consider whether there is a relevant significant change in factual circumstances that fits within one of Rufo's three categories: (1) ifthe changed conditions "make compliance with the decree substantially more onerous;" (2) if the decree "proves to be unworkable because ofunforeseen obstacles;" or (3) if"enforcement of the decree without the modification would be detrimental to
26

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the public interest." Rufo, 502 U.S. at 384. Indeed, this is the Fifth Circuit's approach. Cooper, 33 F.3d at 544. While Rufo does not necessarily preclude the possibility that other changed factual circumstances may warrant modification of a consent decree, post-Rufo courts typically analyze changed factual circumstances within Rufo's three-category structure.
After the Supreme Court's Rufo decision, 502 U.S. 367, the case was remanded to the United States District Court for the District of Massachusetts for reconsideration under the appropriate, flexible standard. On remand, the district court denied the defendants' motion to vacate the consent decree and two motions to modify the consent decree;23 the First Circuit then affirmed the denials. Inmates ofSuffolk County Jail v. Rufo, 148 F.R.D. 14 (D. Mass. 1993); Inmates ofthe Suffolk County Jail v. Rufo, 12 F.3d 286 (1st Cir. 1993). The district court found a significant changed circumstance-an upsurge in pretrial detainee population-but then found that the defendants' proposed modifications "fail the test that this court 'should consider whether the proposed modification is suitably tailored to the changed circumstance[s]. "' Rufo, 148 F.R.D. at 16-17 (quoting Rufo, 502 U.S. at 383). The district court found that the upsurge in pretrial detainee population was "higher than actually anticipated or reasonably foreseeable" and thus satisfied Rufo's requirement that a significant change in factual circumstances existed that made compliance with the decree substantially more onerous.24 Rufo, 148 F.R.D. at 20; Rufo, 502 U.S. at 384.
23 In addition to moving to vacate the decree, the defendants moved to modify the consent decree to permit double-bunking and to remove female detainees from the Nashua Street Jail.
24 See Parton v. White, 203 F.3d 552, 556 (8th Cir. 2000) (applying Rufo, the court found that changed factual circumstances, in the form of an unanticipated increase in the prison's inmate population, "caused a significant housing shortage resulting in the use of makeshift or out-of-state housing, thus making compliance with the decree substantially more onerous and detrimental to the public interest.").
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Reynolds v. Mcinnes, 338 F.3d 1221 (11th Cir. 2003), involved a consent decree resulting from an action alleging racial discrimination in employment practices by Alabama state agencies. The district court found that the defendants had made reasonable, good faith efforts at complying with the consent decree, although the efforts had been unsuccessful with respect to one article contained in the consent decree. Reiterating that the standard for modification of consent decrees is a flexible one, the Reynolds Court found that "the fact that a provision of a consent decree has proven to be unworkable is itself a significant change in circumstances." 338 F.3d at 1228-29. Thus, the court rejected the plaintiffs' argument that, without evidence of the specific circumstances that gave rise to the provision, there can be no determination that those circumstances have changed. The plain fact that the defendants, after good faith efforts, were unable to comply with a consent decree provision was sufficient to satisfy the Rufo flexible standard. The court, in response to this significant changed circumstance, modified 1 of the 21 articles contained in the consent decree.
In the same vein, Shapp, a pre-Rufo case, involved a consent agreement under which the defendants were responsible for 180,000 screenings per year. In support of their Rule 60(b) motion, the defendants presented evidence that the total population eligible for EPSDT screening was between 230,000 and 250,000 persons, "a figure which, due to declining welfare rolls, was significantly lower than had been expected at the time of the consent decree." Shapp, 602 F.2d at 1118. Given the relatively low number of eligibles, they argued, in addition to a 35-45% screening no-show rate, achievement of the screening goals was virtually impossible. Additionally, the defendants argued that it was impossible to comply with the consent decree provision requiring them to provide treatment for discovered abnormalities within 60 days of the EPSDT examination in which they were discovered. The district court found that, despite good
28

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faith efforts, both the screening goals and 60-day treatment rule were impossible to perform. !d. at 1120. Accordingly, the district court eliminated the screening goals and qualified the 60-day treatment provision, and both modifications were affirmed by the Third Circuit. !d. Though Shapp was decided approximately 13 years before Rufo, the Supreme Court cited it as an example of Rule 60(b) application to a consent decree relating to a State's EPSDT program, and it is instructive with respect to illustrating an example of changed factual circumstances warranting revision of a consent decree under Rule 60(b).
In Thompson v. United States HUD, 404 F.3d 821 (4th Cir. 2005), the Fourth Circuit, applying Rufo, found that the magnitude of a party's failure to comply with the terms of the consent decree was a significant change in circumstances warranting modification of the decree. Cf Pigford v. Veneman, 292 F.3d 918 (D.C. Cir. 2002) (finding that class counsel's inability and/or unwillingness to meet consent decree deadlines constituted a significant changed circumstance under Rufo). The Thompson Court found that the defendants were "woefully behind schedule with regard to many provisions of the Consent Decree," 404 F.3d at 825, but focused on one failure as support for the modification of the decree. The consent decree at issue in Thompson required the defendants to make available 911 hard units of housing (as opposed to rent vouchers) by a specified date; on that specified date, the defendants had supplied only 8 of the required units. The court thus decided to extend jurisdiction over the defendants, modifying the consent decree's provision that the district court would exercise jurisdiction for only a limited period of time that was near expiration. The Thompson Court found that the plaintiffs had not anticipated the exceptional magnitude of non-compliance and that the modification ensured that the decree could be efficiently enforced.
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b. Cases Finding No Significant Change in Factual Circumstances Warranting Revision of a Consent Decree In Cooper, 33 F .3d 540, inmates brought a class action against county officials for alleged unconstitutional conditions at a jail. Ten years after the consent judgment was entered, the county officials filed a Rule 60(b) motion requesting complete relief from the judgment, asserting, inter alia, significant changes in factual circumstances. The county officials argued that dramatic and unforeseen changes had occurred in the prison system since the final judgment was entered. They contended that jail conditions and procedures had been radically altered by the construction of a new jail, and the resulting conditions and procedures were either in conformity with, or improvements upon, the stipulations contained in the final judgment. The district court found, and the Fifth Circuit affirmed, that the county officials neither (I) adequately explained how the factual changes affected the workability of the final judgment, compliance with the judgment, or enforcement of the judgment, nor (2) showed that those changes occurred despite their reasonable efforts to comply with the judgment. On these bases, the court denied the defendants' Rule 60(b) request for dissolution of the consent judgment.25
25 See also National Labor Relations Board v. Harris Teeter Supermarkets, 215 F.3d 32 (D.C. Cir. 2000) (denying the defendants' Rnle 60(b) motion to vacate the consent decree). In Harris Teeter, a supermarket chain and the National Labor Relations Board ("NLRB") originally entered into a consent decree in response to allegations oflabor law violations. The court found that the defendant failed to show how any alleged change (e.g., personnel changes, internal reorganization, and increase in facility size) made its compliance with the decree substantially more onerous, as required by the first of Rufo's three scenarios. In the course of finding that the defendant also failed to establish that the changed circumstances satisfied either of Rufo's other two scenarios, the court explained that "self-imposed hurdles and hurdles inherent in a consent decree's entry do not count as 'obstacles.'" Harris, 215 F.3d at 36 (citing Rufo, 502 U.S. at 380-81). With respect to compliance, the court concluded: "While we agree that good faith compliance certainly matters, extended compliance alone does not compel the modification of a consent decree .... Dowell and Rufo must be read together and the precedent leads us to conclude that compliance over an extended period of time is not in and of itself sufficient to warrant relief." Harris, 215 F.3d at 36 (citing Dowell, 498 U.S. 237, and Rufo, 502 U.S. 367). Although Harris Teeter does not involve institutional reform litigation, it is instructive with respect to this overview of how various courts determine whether significant changes in factual circumstances warranting revision of a consent decree exist.
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Alexander, 89 F.3d 194, involved a class action against state officials responsible for the administration of North Carolina's Aid to Families with Dependent Children and Medical Assistance (Medicaid) programs. The parties entered into a consent decree under which the administrators agreed to meet the deadlines that federal regulations mandate for processing applications; the consent decree also provided that the court would retain jurisdiction over its subject matter for six years. The defendants moved, pursuant to Rule 60(b), to dissolve the consent decree after less than two years, arguing that they had complied with the decree for a reasonable period of time sufficient to establish that the decree had served its purpose. In denying the defendants' motion for dissolution, the court found that "[w]ithout proof of a reasonable period of compliance, regardless of a party's subjective good faith or good intentions, equitable considerations weigh strongly against terminating a consent order." !d. at 202. The court found that the defendants had not complied with the decree for a reasonable period of time; indeed, the defendants had never compliedfully with the consent decree. The court noted that "[o]nly compliance for substantially longer periods has been regarded as significant evidence of good faith compliance."26 !d. at 201. The Alexander Court thus found that the defendants' twoyear period of alleged compliance was insufficient to constitute significant changed factual circumstances warranting revision of the consent decree under Rufo and Rule 60(b).
26 The cases the Alexander Court cites for examples of reasonable periods of compliance found good faith compliance only after periods of compliance in excess of 10 years. 89 F.3d at 201.
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PART TWO: DISSOLUTION OF THE CONSENT DECREE IN ITS ENTIRETY In determining whether to award to Defendants their primary demanded relief, dissolution
ofthe Consent Decree in its entirety, the Court considers evidence of all aspects of the Texas Health Steps program. Accordingly, the fmdings of fact in both Part II (Dissolution of the Consent Decree in its Entirety) and Part ill (Dissolution as to all Urban Areas of Texas) are taken into account in the Court's reaching its conclusions oflaw with respect to dissolution of the Consent Decree in its entirety. Evidence relating to the Texas Health Steps program's overall performance, exclusive of evidence relating to Defendants' STAR MCOs,27 includes: (1) statistics and anecdotal evidence relating to class members' receiving medical checkups and dental services; (2) outreach and informing efforts; and (3) case management services. A. MEDICAL CHECKUPS AND PROVISION OF DENTAL SERVICES
The Court, first, addresses Defendants' provision of medical checkups and dental services, as both parties emphasized these EPSDT services in the presentation of their evidence regarding the overall performance of Texas Health Steps. The Court finds, as the parties argue, that the number of class members receiving medical checkups and the number of class members receiving dental services are the most reliable indicia of the overall performance of Texas Health Steps and, as such, constitute the primary bases for the Court's conclusions of law with respect to the Texas Health Steps program as a whole. This evaluation metric is consistent with the Consent Decree, as '\[2 states that "Check Ups are the cornerstone" of Texas Health Steps. In the analysis that follows, the Court finds that Defendants have failed to prove that significant changed factual circumstances exist that warrant modification of the Consent Decree with respect
27 See discussion infra Part ill for an analysis of the performance of Defendants' STAR MCOs.
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to either class members' receipt of medical checkups or Defendants' provision of dental services. Accordingly, the Court finds that Defendants have failed to meet their burden under Rufo to prove significant changed factual circumstances with respect to medical checkups and provision of dental services warranting dissolution of the Consent Decree. See 502 U.S. at 392.
1. The CMS-416 as a Measure of the Overall Performance of Texas Health Steps As a general indicator of the overall performance of Texas Health Steps, both parties presented evidence relating to medical checkups and dental service utilization, as reported to the federal government on the "CMS-416." Defendants report, inter alia, medical checkup and dental service statistics annually to the Centers for Medicare and Medicaid Services ("CMS"), the federal agency responsible for oversight of the Medicaid program, in a "CMS-416" report. 28 The Court thus, initially, considers medical checkup and dental service statistics, as reported on the CMS-416, to determine whether significant changed factual circumstances exist that warrant dissolution of the Consent Decree. While the Court finds that medical checkups and dental service provision are the most comprehensive statistics evidencing the overall performance of Texas Health Steps, it does not necessarily follow that these statistics, as reported on the CMS416, accurately reflect the overall performance of Texas Health Steps. Federal law mandates specific reporting requirements for EPSDT services. Specifically, 42 U.S.C. § 1396a(a)(43)(D) requires that a state Medicaid plan provide for:
28 The CMS-416 was previously known as the "HCFA-416" (with reporting requirements established by the Health Care Financing Administration ("HCFA"), the predecessor of the Centers for Medicare and Medicaid Services ("CMS")). Beginning in 2002, the HCFA-416 was renamed the CMS416. D. Ex. 94. The Court's references to the CMS-416 thus refer to either the HCFA-416 or the CMS416, depending on the year for which the statistics are cited.
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reporting to the Secretary []in a uniform form and manner established by the Secretary, by age group and by basis of eligibility for medical assistance . . . information relating to early and periodic screening, diagnostic, and treatment services provided under the plan during each fiscal year ... (i) the number ofchildren provided child health screening services, (ii) the number of children referred for corrective treatment ... (iii) the number ofchildren receiving dental services, and (iv) the State's results in attaining the participation goals set for the State under section 1905(r).
(emphasis added). The CMS-416 is the federal form that States are required to submit pursuant
to 42 U.S.C. 1396a(a)(43)(D), which includes, inter alia, a "participation ratio"29 and a
"screening ratio"30 regarding medical checkups, as well as a figure reporting the total number of eligibles receiving dental services. Tr. Vol. ill, p. 161 (testimony of Dr. Bultman31); D. Ex. 94.
Defendants maintain that, although the CMS-416 participation ratio potentially
understates the performance of the Texas Health Steps program, "[t]he participation rate and the
screening rate [as reported on the CMS-416] are the best-and the only fair-measures of the
29 The Participation Ratio is the number of eligible children who receive a checkup as a percentage ofthe eligible children who should receive at least one initial or periodic checkup. D. Ex. 97 at 3. The Court takes judicial notice that a "rate" is the relationship between two measurements defined by different units, whereas a "ratio" is the relationship between two measurements usually defined by the same units. D. Ex. 97 at 24. The Court will employ the term "participation rate" to refer to the actual participation rate among class members, while "participation ratio" will refer to the statistic as reported on the CMS-416.
30 The Screening Ratio calculates the number of recommended screens administered as a percentage of the expected number of screens. D. Ex. 97 at 12.
31 As the Director of the Research and Public Health Assessment Office of the Department of State Health Services, Linda Bultman, Ph.D., is in charge of the statistical reporting group responsible for the calculations that appear on the CMS-416. Tr. Vol. ill, pp. 156-57 (testimony of Dr. Bultman). Dr. Bultman is also in charge of research and surveillance (epidemiology) for the health service programs that deal with women, infants, and children; is responsible for the reporting for those same public health service programs; and is chair of the department's institutional review board for the protection of human subjects research. Tr. Vol. III, pp. 156-57 (testimony of Dr. Bultman). She holds a doctorate in exercise science from the University of Massachusetts and has taught statistics at both the undergraduate and graduate level at Kent State University. Id. at 158-59. The Court qualified Dr. Bultman as an expert in applied statistical analysis in the field of health care. Id. at 161.
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Texas Health Steps program's performance." Defendants' Post-Hearing Brief at 21; Tr. Vol.lV, p. 16 (testimony of Dr. Bultman). Plaintiffs, however, maintain that the CMS-416 participation ratio overstates the number of eligible children who actually receive medical checkups and is thus not a reliable indicator ofthe Texas Health Steps program's overall performance. Plaintiffs' Post-Hearing Brief at 44; Tr. Vol. Vill, p. 91 (closing argument of Plaintiffs' counsel). Furthermore, Plaintiffs argue, any increase in the CMS-416 participation ratio is insufficient to warrant relief under Rule 60(b). See Tr. Vol. Vill, pp. 89-90, 99 (closing argument of Plaintiffs' counsel). With respect to dental services, Defendants argue that Texas' dental program is exemplary when compared to other States' and that Texas' dental participation ratio has significantly increased since entry ofthe Consent Decree.32 Plaintiffs respond that the number of class members receiving no preventive dental care is rapidly increasing, thus Defendants' dental program's performance has not significantly improved.
2. Medical Checkups a. How the CMS-416 Participation Ratio is Calculated
The CMS-416 participation ratio is the fraction resulting from the number of class members who receive at least one initial or periodic screening over the number of class members "who should receive at least one periodic screening." D. Ex. 141 at 2 (testimony of Cynthia
32 Defendants, through Dr. Lachman, assert: "Notwithstaniling your encouragement, there will always be some patients who, for whatever reason, will not get immunizations." Tr. Vol. N, p. 157 (testimony of Dr. Lachman). Indeed, the Fifth Circuit also commented that "some children are unable or, for whatever reason, fail to take full advantage of the services." Frazar, 300 F.3d at 533. What Plaintiffs argue, with which Defendants disagree, is the sheer magnitude of underutilization of the services provided through Texas's EPSDT program. Neither the plaintiffs nor the Court assert that Defendants are responsible for proviiling services to those who do not want them; however, the facts found herein reveal that Defendants are failing to provide services to a substantial portion of the plaintiff class-a portion that Defendants have failed to prove choose not to take advantage of the services.
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Ruff13); D. Ex. 97 at 3. The number of class members who should have received a checkup during the year, the denominator in the equation, is not the total number of class members; instead, it is adjusted to account for both the average period of Medicaid eligibility during the year and the number of recommended screens per age group. D. Ex. 97 at 3. For example, the average period of eligibility in 2003 and 2004 was .74 years, or slightly less than nine months, so the total number of class members is multiplied by .74 in the process of determining the denominator for the ratio. D. Ex. 94; D. Ex. 96 at I. The exact formula that Defendants use in this calculation has recently changed twice--in 1999 and 2001-the implications of which are discussed in Part II(A)(2)(c)(ii), infra.
b. The Participation Ratio, as Reported in the CMS-416, is Inflated It is initially noted that the Court has already visited the merits of the participation ratio as reported in the HCFA/CMS form 416. See Frew, 109 F. Supp. 2d at 602-613. In 2000, the Court found that "the reported participation ratios are inflated indicators of the actual participation rates among the plaintiff class."34 !d. at 602. The Court reasoned that, because the participation ratio is adjusted for the average length oftime that class members receive Medicaid during the reporting period, the reported participation ratios did not accurately reflect actual
33 Cynthia Ruff, who testified by deposition, is an employee of the Centers for Medicare & Medicaid Services ("CMS"), U.S. Department of Health and Human Services. She is the federal official responsible for the review of the CMS-416. D. Ex. 141 at 1.
34 Plaintiffs' argument, and the Court's reasoning, now and in 2000, is based on simple division: keeping the numerator constant in a ratio, while reducing the denominator, increases the ratio. For example, a numerator of one over a denominator of two equals a ratio of one-half, or 50%; decreasing the denominator to one results in a fraction of one over one, resulting in a ratio of one, or 100%. Thus, Plaintiffs argue, accounting for average periods of eligibility by decreasing the denominator artificially inflates the reported participation ratio.
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participation rates.35 !d. For the reasons discussed in the 2000 opinion, in addition to the reasons
detailed below, the Court maintains that the CMS-416 participation ratio is an inflated indicator of actual participation rates among the plaintiff class and does not accurately reflect the Texas Health Steps program's overall performance. Because Defendants re-urge the argument that CMS-416 participation ratios accurately reflect actual participation rates among the class, which the Court rejected in 2000, the Court will again discuss the shortcomings of the participation ratio as reported on the CMS-416.
Defendants' argument in support of using the CMS-416 participation ratio as the primary evaluation metric for Texas Health Steps is three-fold: (1) Defendants should not be held accountable for class members with short periods of Medicaid emollment;36 (2) participation rate

35 "For example, according to a hypothetical presented by plaintiffs, if ten four-year-olds receive Medicaid for only six months (half a year), the participation ratio method mandated by HCFA would reduce the number of ten class members by one-half, to five. Thus, if the ten class members received five medical checkups, the participation ratio would be 1.0, or 100%, despite the fact that only one-half of the ten children eligible for the checkup had received the service. Defendants base their methodology on the assumption that not all of the ten children would be 'due' for a checkup during their period of eligibility, as a four-year-old who had recently received a checkup just before being placed on the Medicaid program would not be 'due.' Plaintiffs acknowledge this possibility, but argue that the vast majority of newly-eligible class members have not recently seen a doctor; hence, they argue, a more acceptable empirical assumption would be that all ten, or at least some high fraction of the ten, are in fact 'due' upon enrollment. It is noted that only a well-supported estimate of the likelihood of a newly-enrolled participant's having recently received a checkup just prior to enrollment will enable the parties to resolve their current disputes concerning the accuracy of the participation ratio as an indicator of actual receipt of services." Frew, 109 F. Supp. 2d at 602, n.34. The Court notes that Defendants presented no credible evidence at the June hearing regarding a well-supported estimate of the likelihood of a newly-enrolled participant's having recently received a checkup just prior to enrollment; the Court thus declines to find that Defendants' assumption is superior to Plaintiffs.

36 See Defendants' Post-Hearing Brief at 19 ("It is unfair to hold Defendants or a managed-care

organization accountable for rendering services to a person if the person is not a beneficiary, and

turnover in Medicaid programs nationally tends to be very high. When people are not part of the

Medicaid program, the State or the managed-care organization should not be accountable for providing

services to them." Tr. Vol. VI, p. 24 (testimony of Dr. Shenkman).). The Court notes that by compiling

statistics which accountable for

include class members excluded by CMS-416 calculations, Defendants non-Medicaid recipients; instead, statistics required by Consent Decree

are not being held
'If 284 relate only

to those actually enrolled in Texas Health Steps.

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calculations beyond the requirements of the CMS-416, such as those required by Consent Decree ~ 284, misrepresent the Texas Health Steps program's performance; and (3) even though CMS416 participation ratios potentially understate Texas Health Steps' performance, because of its exclusion of class members with some form of medical insurance in addition to Medicaid, they still evidence significant improvement in the program. Defendants' Post-Hearing Brief at 18-20; Tr. Vol. VIII, pp. 79-82 (closing argument of Defendants' counsel); Tr. Vol. VI, p. 24 (testimony of Dr. Shenkman). Plaintiffs present two objections to evaluating the Texas Health Steps program based on the CMS-416 participation ratio: (1) the CMS-416 participation ratio is adjusted for the average length of time that class members receive Medicaid during the reporting period, thus inflating the reported statistic, and (2) the ratio includes data about children whose "checkups" are incomplete, further inflating the reported statistic. The Court addresses the parties' arguments in turn.
The Effect ofConsidering The Average Period ofEligibility In order to evaluate the parties' respective arguments relating to discounting the denominator in the CMS-416 participation ratio to account for average periods of eligibility, the Court must first determine why the federal formula prescribes such a methodology. See D. Ex. 97 at 3. According to Dr. Bultman, "[t]he federal calculations for the CMS-416 mandate the use ofthese formulas to assure states [sic] requirements are standardized, but also to assure meaningful and reasonable reporting requirements." D. Ex. 97 at 3. The Court accepts Dr. Bultman's opinion, to the extent that accounting for average periods of eligibility permits a general, standardized State-to-State assessment.37 As each State prescribes its own Medicaid
37 The Court acknowledges that the precise formula for calculating CMS-416 participation ratios is federally mandated and serves as a useful indicator of relative performance of States' EPSDT
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eligibility requirements, the average period of eligibility may be drastically different from State to State. Disparate average periods of eligibility correspondingly affect the ability of various States to provide the services within their respective average periods of eligibility and, if not considered in the calculation of participation ratios, will skew State-to-State comparisons.38 However, the Court finds that taking into account the average period of eligibility is unnecessary when assessing one State's participation ratio in isolation. Although removing this factor from the denominator will lower the calculated participation ratio, the entire Medicaid population is taken into account, rather than only a fraction, and the calculated participation ratio will provide additional information about the actual participation rate among the entire class. Neither method of participation ratio calculation, however, is an accurate reflection of the actual participation rate among the plaintiff class: the CMS-416 is under-inclusive and inflates the ratio, whereas inclusion of every Texas Health Steps member is over-inclusive, as the ratio would factor in class members who are either not due for a checkup or not enrolled in Texas Health Steps long enough to come due.39
programs. The Court's rejection of participation ratios as the sole indicator of the overall performance is thus not a criticism of the figure itself; however, the CMS-416 participation ratio is only one piece of information that may be used to evaluate the Texas Health Steps program's performance rather than the sole indicator.
38 See, e.g., D. Ex. 97 at 5 ("Georgia reported only 2.64 months of eligibility in the year, and eligibles age 1-2 reported just over two weeks eligibility for the year (0.03)."); cf D. Ex. 94 (describing Texas' average periods of eligibility). Stated simply, a State with a shorter average period of eligibility, to report the same participation ratio as a State with a longer average period of eligibility, would be required to provide EPSDT services to the same percentage of Medicaid recipients in a shorter amount of time; State-to-State comparisons will thus be skewed in favor of States with a longer average period of eligibility without the CMS-416's method of State-to-State standardization.
39 Accounting for average periods of eligibility "recognizes that some children may have had other screenings during the year that were provided when the child was not eligible for medical assistance or that may have been provided by a third-party payer. It also recognizes that some children may not have been eligible for medical assistance at the point in time during the year that they would have been scheduled to be screened ...." D. Ex. 141 at 3 (testimony of Cynthia Ruff). Plaintiffs again
39

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Defendants' 8.5% Estimate Overstates the Potential Effect of"Other" Insurance on CMS-416 Statistics
Defendants argue, finally, that CMS-416 statistics regarding medical checkups and dental service utilization potentially understate the actual figures by as much as 8.5%. According to Piper Purcell's40 calculations, in fiscal year 2004, 8.5% of all class members under the age of 21 reported having some other form of medical insurance in addition to Medicaid. Tr. Vol. II, p. 212 (testimony of Piper Purcell). Defendants argue that this 8.5% of class members cause Texas' CMS-416 participation ratios to understate the number of class members receiving medical and dental services, because Medicaid is, by law, the payer of last resort. Put more simply, if a child is enrolled in Medicaid, and also has private insurance, the private insurer is billed and no record of the checkup is recorded for Medicaid purposes. Thus, argue Defendants, such a child may be enrolled in Medicaid and get a checkup, yet the checkup will not be reflected in the CMS-416 calculations. The result, Defendants contend, is that the 8.5% of class members who allegedly have other forms of insurance are not included in the participation ratio reported on the CMS416. However, this 8.5% figure overstates the effect of "other" insurance, for at least three
argue, however, that the most reasonable assumption is that "the vast majority of newly-eligible class members have not recently seen a doctor, hence ... a more acceptable empirical assumption would be that all ... or at least some high fraction ... are in fact 'due' [for a medical checkup] upon enrollment." Frew, 109 F. Supp. 2d at 602, n.34. Defendants, at the June Hearing, however, did not provide "a wellsupported estimate of the likelihood of a newly-enrolled participant's having recently received a checkup just prior to enrollment." Id. The Court thus finds that Defendants have failed to meet their burden to prove that the CMS-416 is an accurate, reliable reflection of actual participation rates among class members.
40 Piper Purcell is an employee of the Texas Medicaid Health care Partnership, which is a contractor of the Texas Health and Human Services Commission and is responsible for doing the billing and payment that is related to Medicaid. Tr. Vol. II, pp. 208-09 (testimony of Piper Purcell). Her calculations are reflected in D. Ex. 98.
40

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reasons: (1) it does not discount the figure based on average period of eligibility,41 (2) it assumes that all children with private insurance in addition to Medicaid received the required checkups;42 and (3) it does not clarify which portion of the 8.5% have other dental insurance, as opposed to other medical insurance.43
Defendants' assertion, then, that "the [CMS-416] participation rate potentially understates the number of children receiving checkups in the Texas Medicaid program by almost nine percent," Defendants' Post-Hearing Brief at 22, is grossly inaccurate. Based on the evidence presented, it is impossible to know what portion of the 8.5% of children with private insurance in addition to Medicaid, if any, actually received a medical checkup or dental service which was paid by private insurance and thus not included in the State's CMS-416 calculations. Furthermore, the 8.5% estimate must be discounted by the average period of eligibility, just as the total number of class members who should have received a checkup during the year is discounted. See discussion supra Part ll(A)(2)(a). In conclusion, the Court declines to accept Defendants' flawed estimate of the alleged CMS-416 understatement due to class members' having "other" insurance.
41 As discussed, although the Court finds that discounting the denominator in the ratio based on average period of eligibility overstates the actual participation rate, the Court is simply pointing out the inconsistency in Defendants' calculations: ifthey rely on the reported participation ratio, which accounts for average period of eligibility in support of the Texas Health Steps program's performance, they must also discount the 8.5% figure to account for the same.
42 Defendants presented no evidence related to this assumption; similar to Defendants' argument with respect to accounting for average periods of eligibility, assuming that all children with "other" insurance receive their required checkups does not appear to be an acceptable empirical assumption. Cf infra n.39.
43 This distinction is crucial because the participation ratio reflects medical checkup utilization, whereas the utilization of dental services is reflected in a separate statistic on the CMS-416. As Defendants urge this 8.5% "other" insurance argument with respect to both medical and dental statistics, it is necessary to determine the breakdown between the types of"other" insurance class members allegedly have in order to determine the effect on the discrete statistics.
41

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CMS-416 Participation Ratios Include Incomplete Checkups As a further criticism of using CMS-416 participation ratios as a measure of the Texas Health Steps program's overall performance, Plaintiffs clarif'y that a "checkup" for CMS-416 purposes is not necessarily a complete Texas Health Steps checkup. See Plaintiffs' Post-Hearing Brief at 44; cf discussion infra Part Ill(C)( I). Class members receive checkups that are counted as checkups for CMS-416 purposes, and are thus factored into the CMS-416 participation ratio, although they may lack one or more requirements of a Texas Health Steps checkup, such as blood tests for lead poisoning or immunizations. See D. Ex. 141, Cross Question 3 (Deposition on written questions of Cynthia Ruff). Plaintiffs thus argue that CMS-416 participation ratios erroneously include checkups that should not be considered in an evaluation of the performance of Texas Health Steps. Defendants do not refute Plaintiffs' allegation that CMS-416 participation ratios include incomplete Texas Health Steps checkups. The Court thus finds that inclusion of incomplete Texas Health Steps checkups further inflates CMS-416 participation ratios; however, neither party presented evidence relating to the magnitude of the inclusions' effect. Because the burden of proof is on Defendants for purposes of their Rule 60(b) Motion, the Court considers the CMS-416 participation ratio's erroneous inclusion of incomplete checkups in its conclusions oflaw.
c. Conclusions of Law: Medical Checkups Based on the findings of fact relating to the CMS-416, the Court arrives at the following conclusions oflaw with respect to medical checkups: (1) HCFA/CMS-416 participation ratios are not a reliable indicator of Texas Health Steps' overall performance, and (2) neither the increased participation ratios nor increased screening ratios, as reported on Texas' CMS-416s, constitute changed factual circumstances warranting dissolution ofthe Consent Decree, as demanded by Defendants. The Court's reasoning is detailed below.
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(i) CMS-416 Participation Ratios Are Not a Reliable Indicator of Texas Health Steps' Overall Performance First, as discussed at length in Part li(A)(2)(a) and (b), the CMS-416 participation ratio is not a reliable indicator of the Texas Health Steps program's overall success. It is unreliable as a sole indicator of Texas Health Steps' overall performance, since it inflates actual participation rates among the plaintiff class by considering average periods of eligibility and including incomplete checkups. See discussion supra Part li(A)(2)(b). Furthermore, though actual participation rates are among the most reliable indicators of the overall performance of Texas Health Steps, CMS-416 participation ratios are but one small indicator ofthe health of the program. Because the CMS-416 participation ratio formula excludes many class members who are due for a checkup, yet do not receive one, it does not paint a complete picture of Texas Health Steps' overall performance. These findings of fact, alone, substantiate the Court's conclusion that any increase in CMS-416 participation ratios, by itself, does not constitute significant changed circumstances warranting dissolution ofthe Consent Decree; however, to bolster this finding, the Court considers the statistics, as reported on the CMS-416, since entry of the Consent Decree. (ii) The Increase in CMS-416 Participation Ratios Does Not Constitute a Significant Changed Factual Circumstance Even assuming, arguendo, that CMS-416 participation ratios are a reliable indicator of the overall success of the Texas Health Steps program, the increase in participation ratios since the entry of the Consent Decree does not constitute a significant changed factual circumstance warranting revision of the Consent Decree. See Rufo, 502 U.S. at 392. Defendants argue that Texas' CMS-416 participation rates have substantially increased since 1993, thus constituting
43

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significant changed circumstances warranting revision of the Consent Decree. Furthermore, argue Defendants, Texas' current CMS-416 participation rates rank in the top one-third of all reporting jurisdictions. D. Ex. 97 at 9. Plaintiffs, however, argue that the number of class members failing to receive medical checkups to which they are entitled has increased since entry of the Consent Decree; that Texas' participation rates, as reported on the CMS-416, have declined since 1998; and that Texas' CMS-416 participation ratio relative to other States' is an unreliable indicator ofthe Texas Health Steps program's performance. Chart A contains Texas' participation ratios, as reported on the CMS-416, from 1994 through 2004: 44

Chart A: CMS-416 Participation Ratios (1994-2004)

Year

Participation Ratio

1994

.42

1995

.43

1996

.51

1997

.55

1998

.66

1999

.62

2000

.63

2001

.52

2002

.55

2003

.60

2004

.62

44 D. Ex. 94; D. Ex. 96.
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The Number ofClass Members Receiving No Medical Checkups Has Consistently Increased Since Entry ofthe Consent Decree First, the Court declines to look at CMS-416 participation ratios in isolation. To evaluate the current state of Texas Health Steps and class members' utilization ofEPSDT services, the Court must additionally consider actual numbers of class members receiving Texas Health Steps services. Percentages, alone, are only a small quadrant of the complete picture; the size of the plaintiff class has grown substantially and, regretfully, the number of class members receiving no checkups has correspondingly increased. While a comparison of Texas' CMS-416 for 1994 and that for 200445 reveals an increase in participation ratios from 42% to 62%, respectively, the number of class members who received no medical checkups also increased from 1994 to 2004-from at least 623,650 in 1994 to at least 764,233 in 2004.46 D. Ex. 94; D Ex. 96. Despite the increase in reported participation ratios since entry of the Consent Decree, on which Defendants rely to prove significant changed factual circumstances for the better, the number of
45 As the Consent Decree was submitted to the Court for approval in 1995, the Court compares, to the extent possible, statistics for 1994 to those for 2004. Statistics for 2005 are not yet available, and statistics for 1994 best describe the state of Texas Health Steps at the time the parties submitted the Consent Decree to the Court in 1995.
46 Defendants object to Plaintiffs' initial calculation, which did not consider average period of eligibility. Plaintiffs argue that, to determine how many class members have not received medical checkups, the Court should subtract the total number of eligibles receiving at least one initial or periodic screen from the total number of individuals eligible for EPSDT. Defendants, however, argue that the Court should subtract the total number of eligibles receiving at least one initial or periodic screen from the total number of eligibles who "should" receive at least one initial or periodic screen, similar to the method prescribed by the CMS-416 formula. While the Court finds that the total number of class members not receiving at least one initial or periodic screen has increased from 631,451 in 1994 to 1,453,277 in 2004, it acknowledges that this number is an inflated estimate of the number of class members not receiving screening services to which they are entitled and due, because it does not exclude those either not due or who have received services from a source other than Texas Health Steps. D. Ex. 94; D. Ex. 96. By either calculation, the number of class members receiving no medical checkups is increasing at an alarming rate, despite the increase in reported participation ratio.
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class members who should have received services, but received none, has actually increased since entry of the Consent Decree.47 The Court finds that Defendants' reliance on increased participation ratios to prove significant changed factual circumstances warranting dissolution of
the Consent Decree is, therefore, misplaced. Participation Ratios Do Not Evidence Significant Improvement in the Overall Performance of Texas Health Steps
The State's CMS-416 reported participation ratio increased from .42 in 1994 to .62 in 2004. D. Ex. 94; D. Ex. 96. In isolation, these snapshots appear to evidence significant changed factual circumstances; however, these two figures are only the first step in an analysis of significant changed circumstances based on CMS-416 participation ratios. Looking solely at the CMS-416, Defendants' participation rate has declined from .66 in 1998 to .62 in 2004. Id. The decline from 66% to 62% between 1998 and 2004 is particularly disturbing, since Defendants, through their Rule 60(b) Motion, are asserting that Texas Health Steps has taken giant strides forward in the years since the Consent Decree's entry, thus rendering the Consent Decree unnecessary in light of the program's success.48 Any recent decline in CMS-416 participation ratio thus contradicts Defendants' perception of Texas Health Steps' overall performance and does not support a finding of significant changed factual circumstances. To determine what

47 It should be noted that the parties have always anticipated a continued increase in the number

of recipients of EPSDT benefits. size since the instant lawsuit was

See Consent Decree '1['1[ 1,4. Thus, the nearly 100% increase filed does not constitute a significant changed circumstance

in class warranting

modification of the Consent Decree. Furthermore, each child is entitled to medical checkups according

to a regular schedule; neither federal law nor the Consent Decree ties Defendants' obligations to a

percentage of those eligible for EPSDT services.

48 Though this is essentially Defendants' argument, the Court notes that program success, alone, does not necessarily warrant relief under Rule 60(b). See Rufo, 502 U.S. at 392; Shapp, 602 F.2d at 1120; Cooper, 33 F.3d. at 544.

46

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conclusions, if any, may be drawn from these data, including both the overall increase in Defendants' CMS-416 participation ratio since 1994 and the decrease in CMS-416 participation ratio since 1998, the Court must closely scrutinize the parties' arguments relating to the comparability of the HCFA/CMS-416 participation ratios for the years under examination.
Paradoxically, Defendants assert that the formula underlying the calculation of participation rates for purposes of the CMS-416 has changed twice-in 1999 and 2001-thus rendering pre- and post-formula change calculations "apples and oranges," respectively. See Defendants' Post-Hearing Brief at 23-24;49 D. Ex. 97 at 12-13. Defendants argue that, as a result, the only meaningful comparisons of CMS-416 participation ratios are from 2001 forward, taking into account the fact that the formula has remained constant since that time. See Defendants' Post-Hearing Brief at 24; D. Ex. 97. The Court is astonished by Defendants' audacious argument in this respect, because they are urging the Court to compare 1993 CMS-416 participation ratios to 2004 CMS-416 participation ratios as proof of the program's success, while simultaneously arguing that pre-2001 CMS-416 participation ratios cannot be meaningfully compared to post200 I CMS-416 participation ratios.
Taking Defendants' first argument, that the Court should look only to post-2001 CMS416 participation ratios, the Court notes that Texas' reported participation rate increased from .52 in 200 I to .62 in 2004. D. Ex. 94; D. Ex. 96. The Court finds that a I 0% increase in inflated participation rates between 2001 and 2004 is insufficient to prove significant changed circumstances warranting dissolution of the Consent Decree in its entirety. Furthermore, the
49 "Plaintiffs' simplistic approach, however, compares apples to oranges, in that it ignores changes in the formula for calculating the participation ratio that occurred in 1999 and again in 2001." Defendants' Post-Hearing Brief at 23.
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number of class members failing to receive a checkup, using Defendants' preferred calculation, increased from 633,130 in 2001 to 764,233 in 2004. D. Ex. 94; D. Ex. 96. While the increase in CMS-416 participation ratio evidences increased Texas Health Steps success over the past four years, the Court finds that it does not constitute a significant changed factual circumstance.
Next, Defendants, through Dr. Bultman, seemingly assert that the increase in participation ratios from .42 in 1994 to .62 in 2004 understates the actual increase in CMS-416 participation ratios, by reason of formula changes in 1999 and 2001. Defendants' argument thus implies that the increase in CMS-416 participation ratios since the entry of the Consent Decree is actually in excess of 20%. As Dr. Bultman explained: "Both changes influenced the CMS Annualized State Periodicity Schedule (average number of screens that should be received each year for a specific age group) calculation ... and, therefore, influenced the expected number of screenings and participants." D. Ex. 97 at 12. In further explication, Dr. Bultman testified that the 1999 and 2001 changes "cause[d] both the Screening Ratio and Participation Ratio to decrease because the denominator used in the calculation increase[d]." Id. at 14. Although Dr. Bultman's analysis implies that Texas' reported post-2001 participation ratios would have been higher without the formula changes, since the denominator in the equation would be lower absent the formula changes, neither she nor Defendants provided an estimate of the magnitude of the changes' impact on reported participation rates. While the Court finds Dr. Bultman's assessment of the changes' impact on participation rates credible and accurate, the magnitude of the effect remains unaddressed. As Defendants have failed to offer definitive proof in this respect, the Court finds that CMS-416 participation ratios from 1994 through 2004 are roughly comparable. As already discussed, though a 20% increase in CMS-416 participation ratio evidences a substantial increase
48

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in Texas Health Steps' performance, the number of class members failing to receive checkups for which they were due has increased over the same period oftime. Thus, the Court finds that the increase in CMS-416 participation ratio does not constitute a significant changed factual circumstance warranting modification of the Consent Decree. See Rufo, 502 U.S. at 392.
Finally, Defendants argue that Texas' reported medical screening participation ratio for 2004 placed the State in the top one-third of all reporting jurisdictions, thus evidencing the success of the Texas Health Steps program. D. Ex. 97. Furthermore, argue Defendants, the State's rigid adherence to the CMS-416 reporting rules and the higher standards that Texas has set for itself (e.g., the periodicity schedule requiring 26 screens for children aged 0-21 years) render Texas' ranking even more impressive. The Court declines to accept Texas' CMS-416 performance relative to other States' as proof of the success of the program. First, as previously discussed, CMS-416 participation ratios are not a reliable indicator of the success of the Texas Health Steps program. Second, as Dr. Bultman explained in her expert report, there are numerous ways a State can manipulate the ratios required by the CMS-416.50 As the Court finds that Texas' CMS-416 ratios, alone, are not reliable indicia ofthe success of the Texas Health Steps program, it similarly finds that comparing this unreliable ratio to ratios of other States, which may easily manipulate their ratios, is similarly inappropriate.
Furthermore, the Court finds that the increase in inflated, manipulable reported screening ratios from 48% in 1994 to 75% in 2004 does not constitute significant changed factual circumstances warranting dissolution of the Consent Decree. See D. Ex. 94, 96, 97. While the
50 See D. Ex. 97 at 8-9 (describing tbe ways a state may manipulate tbe CMS-416 ratios, including a State's policy regarding the number of recommending medical screens and whether a State's data policy permits reporting in such a way as to exceed 100% participation).
49

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increased screening ratio evidences improvement in utilization of medical screening services, it is insufficient to satisfy Rufo's requirement for modification of a consent decree.
After careful consideration of the parties' arguments in this regard, the Court finds that the CMS-416 participation and screening ratios have improved substantially since, and perhaps because of, the entry of the Consent Decree. See Shapp, 602 F.2d at 1120 ("[T]he decree continues in force most of the provisions ... which have produced one of the most successful EPSDT programs in the country."). While Defendants' CMS-416 participation ratio has increased by approximately 20% since entry of the Consent Decree, it has declined since 1998 (from .66 to .62). D. Ex. 94; D. Ex. 96. Defendants' reliance on these statistics to prove significant changed factual circumstances warranting revision of the Consent Decree, is misplaced and is, accordingly, rejected. Defendants have also failed to present evidence that these alleged changes in factual circumstances "affect[s] compliance with, or the workability or enforcement of, the final judgment [or] show that those changes occurred despite [Defendants'] reasonable efforts to comply with the [Consent Decree]," thus further failing to satisfy the Rufo/Cooper Rule 60(b) standard for consent decree modification. 502 U.S. at 384; 33 F.3d at 544.
50

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3. Defendants Have Failed to Meet Their Burden With Respect to Consent Decree ~~ 171 and 284 Dr. Bultman, Defendants' expert witness, testified that it is not possible to provide the information required by Consent Decree '1['1[171 51 and 28452 in any meaningful fashion other than what presently appears on the State's annual CMS-416.53 Tr. Vol. III, pp. 203-06 (testimony of Dr. Bultman). As she explained, if Defendants count all of the medical and dental checkups but are not permitted to use the calculations mandated by the CMS-416--which take into account the average period of eligibility for each age group-any resulting numbers will "grossly misrepresent" Defendants' efforts in providing Plaintiffs access to services. Id.; Tr. Vol. N, pp. 20-22 (testimony of Dr. Bultman). As briefly discussed in Part II(A)(2)(b), the Court rejects this argument, as non-CMS-416 statistics do not misrepresent participation ratios any more so than CMS-416 participation ratios. Additionally, Dr. Bultman asserts that, because children are not
51 Paragraph 171 provides: "Defendants do not maintain records of the number of recipients who receive 1 or 2 dental check ups each year. The parties agree that by September 30, 1996, Defendants will prepare a report of the number and percent of recipients who receive 1 dental check up/year and 2 dental check ups/year. They will prepare similar reports every year."
52 Paragraph 284 provides: "Every year from 1996 through 1999, Defendants will also report to Plaintiffs the number and percent of recipients who receive all of their scheduled medical check ups. They will further report the number and percent of recipients who receive all of their scheduled dental check ups. Defendants will provide these reports to Plaintiffs no later than December 31 of each year."
53 Indeed, Dr. Bultman, Cynthia Ruff, and Dr. Shenkman all testified that it is not appropriate to evaluate the provision of services to the Medicaid population, as required by Consent Decree -,r-,r 171 and 284 without determining what portion of a year the individuals are actually eligible for Medicaid. Tr. Vol. III, pp. 203-05 (testimony of Dr. Bultman); D. Ex. 141 at 1-2 (testimony of Cynthia Ruff); Tr. Vol. VI, pp. 24-25 (testimony of Dr. Shenkman). Though each of these defense witnesses deems the calculations "inappropriate," none testified that they would be impossible to compile, nor do they testify that the degree of difficulty in their calculation has increased since the entry of the Consent Decree. See Rufo, 502 U.S. at 392. Defendants also note that "Plaintiffs introduced no testimony by anyone ... supporting the continued enforcement of Consent Decree paragraphs 171 and 284 ...." Defendants' Post-Hearing Brief at 32. However, the Court notes that Defendants have the burden ofproofunder Rule 60(b), Rufo, 502 U.S. at 383, which they have not met with respect to the requirements of Consent Decree -,r-,r 171 and 284.
51

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uniformly Medicaid eligible for the entire year, each individual child will likely have a unique schedule ofEPSDT examinations, and compilation of the data would be time consuming and costly. D. Ex. 99.
The Court next addresses the merits of Defendants' arguments, in order to determine whether Defendants have satisfied Rufo's and Cooper's requirements for modification of consent decree provisions. First, Defendants' arguments fail to recognize the purpose of the statistics required by Consent Decree '1!'1!171 and 284. Plaintiffs do not contend, and the Court is not under the impression, that the statistics required by paragraphs 171 and 284 would serve to replace those reflected in the CMS-416 or serve as an indicator ofthe overall success ofthe State's program. Instead, they would merely supplement the CMS-416 participation ratio and provide additional, different information about the program's efficacy and provide Plaintiffs with some idea of the utilization level of all of those enrolled in Medicaid.54 Instead of providing misleading data, it would provide the only data with respect to the class members excluded by the CMS-416 calculations. The additional statistics would thus be "meaningful" indicators of Texas Health Steps' performance and would not "grossly misrepresent" participation rates.55 The lens
54 See Frew, 109 F. Supp. 2d at 612 (finding that "[w]hen read in conjunction with paragraph 283, which mentions defendants' pre-existing duty to report participation ratios to HCFA, paragraph 284 requires defendants to provide plaintiffs with more information; namely, 'the number and percent of recipients who receive all of their scheduled dental checkups.' Defendants' argument that HCFA Form 416 data fulfills their obligations under paragraph 284 is therefore rejected. Paragraph 284 makes clear that plaintiffs bargained for a very specific type of data in addition to the 'calculations' or 'approximations' already required by the HCFA." (quoting Consent Decree '1!284).).
55 The Court reiterates that "the complexities associated with collecting utilization data require the parties' continued collaboration in the design and implementation of this system. Plaintiffs must therefore collaborate with defendants in their pursuit of the required number and percent." Frew, 109 F. Supp. 2d at 612 (quotations omitted).
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through which such statistics should be viewed will take any shortcomings into account in their interpretation.
Consent Decree~~ 171 and 284 were drafted with the federal CMS-416 requirements in mind. See 42 U.S.C. § 1396a(a)(43)(D). As a result, all parties knew that the mandatory, enforceable obligations enumerated in Paragraphs 171 and 284 go beyond the minimum requirements of federal law. Defendants' argument with respect to the statistics required by paragraphs 171 and 284 of the Consent Decree is thus not related to any changed circumstances, as required by Rule 60(b)(5); rather, it relates to whether Defendants, unilaterally, find their requirements useful or cost effective. However, Defendants carmot simply choose which Consent Decree provisions they deem cost effective and useful nearly ten years after the Consent Decree was entered.
Dr. Bultman also opined that providing the information in the form described in Consent Decree ~~ 171 and 284 would not be fiscally responsible, nor would it be a good expenditure of public funds, to spend the time required to generate the reports for these two Consent Decree paragraphs. 56 Tr. Vol. III, pp. 204, 206 (testimony of Dr. Bultman). However, Defendants provided no cost estimates on which the Court could base a determination that such provisions are fiscally irresponsible or that the provisions would require Defendants to divert a substantial
56 Dr. Bultman also testified that CMS-416 statistics are the "best measures" of the program's performance, Tr. Vol. IV, p.20-22 (testimony of Dr. Bultman); however, this does not help prove that non-CMS-416 statistics either misrepresent actual participation rates or are more difficult to compile than when the Consent Decree was entered. Given that Defendants have failed to compile statistics relating to the class members excluded from the CMS-416 calculations, it is not difficult to believe that CMS-416 statistics are currently the "best measures." Additionally, questions regarding the utility of various statistics need not be phrased in an "either-or" manner; even ifthe CMS-416 ratios are the "best measures" of the program's overall performance, Plaintiffs' assertion that additional statistics would be informative and paint a more accurate picture of the program's overall performance is not foreclosed.
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amount of resources from other parts of the Texas Health Steps program. Defendants presented no evidence regarding changed circumstances with respect to compiling the data required by Consent Decree ~'\[171 and 284; the Court finds that Defendants have proved neither significant changed circumstances, nor that the alleged difficulties of compiling this data, and Defendants' sentiments regarding its necessity, did not exist when the Consent Decree was entered. The Court thus finds that Defendants' current views with respect to these Consent Decree provisions do not make compliance with the Consent Decree substantially more onerous than when it was entered, make the provisions unworkable because of unforeseen obstacles, or cause enforcement of the Consent Decree to be detrimental to the public interest. See Rufo, 502 U.S. at 384.
Furthermore, Defendants show their unilateral disregard for Consent Decree provisions by asserting that gathering and collecting data other than that which is federally required is a "needless expense." See Defendants' Post-Hearing Brief at 22; see also Tr. Vol. VIII, p. 87 (closing argument of Defendants' counsel) ("[T]hey will be meaningless numbers."). Defendants, however, fail to recognize that not gathering and reporting the data required by the Consent Decree is potentially an even greater expense, as it exposes the State to equitable sanctions for willful violation of Consent Decree provisions.57 Unless and until the Court grants a Rule 60(b) motion to modify or dissolve the decree, the obligations contained in the Consent Decree are binding and enforceable, and Defendants may not choose to disregard them after unilaterally determining that a provision is unnecessary or undesirable. Furthermore,
57 See Hutto v. Finney, 437 U.S. 678, 685 (1978) (cited in Frew, 540 U.S. 439-40 ("When the officials [in Hutto] refused to comply in good faith with the order, the District Court awarded attorney's fees to the prisoners' lawyers to be paid from the state treasury."); see also Alberti v. Klevenhagen, 46 F.3d 1347, 1357-58 (5'h Cir. 1995).
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Defendants' desire, or lack thereof, to compile the data is not relevant in the Court's Rufo analysis; instead, Defendants must prove that changed factual circumstances-since they voluntarily agreed to compile the data-make compliance with the Consent Decree substantially more onerous, render certain provisions unworkable or cause enforcement to be detrimental to the public interest. See Rufo, 502 U.S. at 384; Cooper, 33 F.3d at 544. Defendants have not satisfied this burden.
4. Dental Services Defendants argue that a significant increase in dental participation ratios, in addition to Texas' exemplary provision of dental services relative to other States', proves significant changed factual circumstances warranting modification ofthe Consent Decree. As in 2000, and similar to their CMS-416 participation ratio argument, Plaintiffs argue that relative comparisons to other States are irrelevant in determining whether Defendants are in compliance with the Consent Decree. See Frew, 109 F. Supp. 2d at 603. Furthermore, Plaintiffs' argument is misplaced with respect to Defendants' Rule 60(b) motion. Because Defendants are not arguing that they are in compliance with the Consent Decree, but rather that the program is so successful as to render the Consent Decree unnecessary, compliance with the Consent Decree is not in issue with respect to changed factual circumstances.58 Plaintiffs further argue that class members' access to dentists is hampered by Defendants' failure to enroll sufficient numbers of dentists in Texas Health Steps.
58 Compliance with the Consent Decree is relevant, however, when determining whether Defendants have made "reasonable efforts to comply with the judgment." See Cooper, 33 F.3d at 544. See also discussion infra Part V (discussing Defendants' reasonable efforts to comply with the Consent Decree).
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a. Defendants Manipulate Texas' Relative Ranking Defendants' primary argument with respect to provision of dental services is that Texas' dental participation rate, which in 1993 was as low as 14%, improved to 45% for 2004, making Texas' dental participation rate the second best in the nation. D. Ex. 97 at 10. However, both Defendants' temporal comparison and relative rankings are fatally flawed and lack merit; therefore, they are rejected.59 First, Table 3, contained in D. Ex. 97, prepared by Dr. Shenkman, calculates dental participation ratios "for all states as if they followed the Texas eligibility, in which children become eligible for checkup services at age one." D. Ex. 97 at 7. "It should be noted that state Medicaid policy sets the age at which dental services begin, and some states begin dental eligibility at age three (3). Actual dental Participation Ratios for those states would be understated in Table 3, which uses age 1 (one)." !d. Table 3 thus ranks all States based on Texas' Medicaid policy and provides no meaningful comparison among States.60 In other words,

59 Relative comparisons to other States are not necessarily unreliable for provision of dental psSeatrervtpiiscc,iepasan, tdiinoancroreanlattirtoaivssetatrcoeoCmunMpraeSrl-iis4aob1nl6etpobaeorcttiahcueispreaStttihaoetnecsraailtsciouusln.arteiAolisnabdiltiessecblufescissaeuudsneirneSlPitaaabtretlseIImw(Aaity)h(2mr)ea(scnp)ie(picuit)l,atoCteTMtehSxe-ai4rs1H6 ealth p4rambtdehp1ayepuar6ptoittes,lnitrryDcadmtpiestieprodvifoano.iedtvedpineiuopFwddnanoueatlhsranretteSalhthdtsttsheei'aeotretootmrsreovn.sataoil'accyrHrlpeecarons,euteiwrurSosliaamtot,eattadveiabttvieineesScerdstri,ti'taccotypatohsferbsmeo-beictvlleapohiiicvtga-esySaeirdibuiorttusaaolsnolegteeesnmoestcrfhiapoesodenercmyseireapuniipaovubvtraaedlsieralrntioatarsgsegnefoevepttrenihvaolaspieirrlgecioltosyeirefbitusdoamCisltdiiiisMnatsstyyntsrioSpuicaipe-fsb,w4usemat1llhosani6iugttufeetsidmdexdbednep,ibnlnoliaaeattttnasrayiclndl.faoeosstnrdBtrehaamsruubtwivisdatysi,tectnu.biDreunceesDrsmrdc,.ea.eablBiuivnEeafusirixbdtelgh.toleumetenn9hr,7ecaestie.nthtuaC,edTntSdioeaCestoucatfxMielfrtacieetsnsssScfenit-nseoddttos Health Steps' dental program's superior relative performance.

60 The Court emphasizes that Table 3 is not prepared directly from States' CMS-416s; the CMS-

416 requires only the following dental statistics: "Total Eligibles Receiving Any Dental Services," "Total

Eligibles Receiving Preventive Dental Treatment Treatment Services." D. Ex. 96. Dr. Shenkman,

Services," and "Total Eligibles Receiving Dental Defendants' expert witness, manipulated the data

and

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instead of determining Texas' relative rank with respect to provision of dental services based on each State's dental eligibility requirements, Defendants calculate dental participation ratios based on Texas' eligibility requirements. As a result, other States' dental participation ratios, in the chart prepared by Dr. Bultman, are understated if eligibility for dental services begins after age one. D. Ex. 97 at 7. Defendants do not explain which States begin eligibility at age three or by how much those States' participation ratios are understated as a result of Dr. Shenkman's manipulations. The Court declines to find that Texas ranks in the top two States with respect to provision of dental services and finds that Dr. Shenkman's Table 3 is misleading and inaccurate. Defendants offered no other meaningful relative comparisons; thus, Defendants' argument that Texas' provision of dental services is exemplary compared to other States' is without support and, accordingly, is rejected.
b. Dental Participation Ratio The Court now turns to Defendants' argument that the dental participation ratio, which in 1993 was as low as 14%, improved to 45% for 2004.61 First, as the parties proposed the Consent Decree to the Court in 1995, data from 1994 most accurately reflects the state of Texas Health Steps at the time of the Consent Decree's entry. 62 See supra n.45. In 1994, the class size was 1,390,857, and 344,535 class members received dental assessments; thus, roughly 25% of class
calculated a "dental participation ratio" modeled on the CMS-416 medical participation ratio formula, based on Texas' EPSDT eligibility requirements. D. Ex. 97; D. Ex. 99.
61 Defendants' Post-Hearing Brief at 30; see D. Ex. 94; D. Ex. 96; D. Ex. 97 at 10. 62 The Court again notes that "dental participation ratio" is not submitted on the CMS-416; instead, it is calculated by dividing "total individuals eligible for EPSDT" by one of the dental service statistics. See D. Ex. 94; D. Ex. 96.
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members received dental assessments."3 D. Ex. 94. In 2004, the class size had increased to 2,706,903, and "total eligibles receiving preventive dental treatment services" was 999,387; thus, roughly 37% of class members received preventive dental care. D. Ex. 96. Also in 2004, however, 1,142,966 class members received "any dental services." D. Ex. 96. While the number of class members receiving "any dental services" in 2004 constitutes 42.2% of the number of class members eligible for EPSDT services (presumably the statistic Defendants used in their calculation resulting in a professed 45% dental participation rate), it is misleading to compare this number to the exclusively preventive dental statistic reported in 1994. In other words, the most accurate comparison betweenl994 and 2004 shows that provision ofpreventive dental services increased from 25% to 37%. Defendants' argument, then, that dental participation rate increased from 14% to 45%, is flawed in two respects: (1) it compares 199364 to 2004, rather than 1994 to 2004, and (2) it compares statistics measuring different types of dental services, thus comparing "apples to oranges." The Court finds the increase in CMS-416 dental figures from 25% to 37% (comparing relevant years and statistics measuring provision of similar services)
63 In 1993, the only line on the HCFA-416 relating to dental services was labeled "Number of eligibles receiving preventive dental services." D. Ex. 94. In 1994 and 1995, the dental line was labeled "Number Receiving Dental Assessments." !d. However, in 1996 it was again labeled "Preventive Dental Services," before returning to "Dental Assessments" in 1997 and 1998. !d. Beginning 1999, and continuing througb 2004, the HCFA/CMS-416 included three dental service lines: "Total Eligibles Receiving Any Dental Services," "Total Eligibles Receiving Preventive Dental Treatment Services," and "Total Eligibles Receiving Dental Treatment Services." !d. The Court will thus interpret the 1994 figure entitled "Number Receiving Dental Assessments" as the equivalent of "Number of eligibles receiving preventive dental services," a category also included in the 2004 CMS-416. D. Ex. 96.
64 The number of eligibles receiving preventive dental services in 1993 was 160,284; the number of individuals eligible for EPSDT in 1993 was 1,330,465. D. Ex. 94. The "dental participation ratio" for 1993 was thus approximately 12%.
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insufficient to prove significant changed factual circumstances with respect to provision of dental services warranting dissolution of the Consent Decree. See Rufo, 502 U.S. at 392.
c. Defendants' Provision of Dental Services Has Not Otherwise Significantly Improved In addition to failing to prove significant changed circumstances warranting revision of the Consent Decree via dental participation ratios or Texas' dental program performance relative to other States', Defendants have failed to prove any other significant factual changes warranting revision of the Consent Decree with respect to Texas Health Steps' dental program. Plaintiffs presented substantial reliable evidence of other shortcomings in Defendants' dental program, the most significant of which is detailed below. In 2000, the Court expressed concern about the severe, statewide shortage of dentists available to see class members; the number of active dentists who saw at least one class member was less than 1,600. See Frew, 109 F. Supp. 2d at 604. As of the first quarter of2005, only 1,539 active dentists were enrolled with Texas Health Steps. P. Ex. DEN-11. According to Dr. Seale, "we're going backwards; we're losing providers and increasing numbers of patients." Tr. Vol. VI, p. 92 (testimony of Dr. Seale). This stagnation in numbers of active dentists is exacerbated when viewed in conjunction with the increasing number of class members. In the last quarter of2004, 1,517 active dentists were enrolled in Texas Health Steps. P. Ex. DEN-11. During that time, there were also 2,458,671 class members over the age of 12 months. D. Ex. 96. For each class member to receive dental care, then, every active dentists would have had to take care of 1,621 children with Medicaid. However, in 2004, only 223 of the 1,517 active dentists
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took care of more than 1,500 class members. P. Ex. l-1; Tr. Vol. Vll, p. 154 (testimony of Dietmar Kennel).
Defendants have enrolled less than 20% of Texas' roughly 8,000 dentists to care for class members. Tr. Vol. Vll, p. 154 (testimony ofDietmar Kennel). Dr. Seale testified that the most important change needed to increase class members' utilization of dental care is "more providers, because I don't care how much we teach [families] about what they need to have done, ifthere's no one who will see them ... [children are] ... not going to get the care." Tr. Vol. VI, pp. 90-91 (testimony of Dr. Seale). Plaintiffs offer several explanations for low provider participation in Defendants' dental program, including low payment rates and the administrative burdens of being reimbursed by Texas Health Steps. See Kennedy Deposition at~ 32. Defendants respond that there is an insufficient number of pediatric dentists in Texas to provide the majority of dental care to children, regardless of what kind of insurance the children have. Tr. Vol. VI, p. 79 (testimony of Dr. Seale).
Defendants also respond that, despite the increase in the number of active dentists, the active dentists' capacity to care for class members has increased. If this argument is meritorious, the relatively constant total number of dentists enrolled in the program is seemingly irrelevant; so long as capacity has increased, the number of children able to be served by Texas Health Steps dentists has increased. Plaintiffs argue that the actual increase in the number of "high volume dentists" is only 69, from 1,105 in 2000 to 1,174 in 2004. P. Ex. DEN-11. Defendants argue that, from 2000 to 2004, Defendants "gained a capacity to serve about 240,000 patients because of the increase in high volume providers." Tr. Vol. VI, p. 115 (testimony ofNancy Seale). However, the size of the class eligible for dental services increased by roughly 810,000 during
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the same time period, so even assuming, arguendo, that Defendants' calculations are correct, the state of Texas Health Steps dental services is more dismal than the Court found in 2000, as class growth has exceeded the growth of Defendants' capacity to serve class members. Id.; see D. Ex. 94; D. Ex. 96; Frew, 109 F. Supp. 2d at 603-04.
Based on an insignificant increase in dental participation ratios, the Court's rejection of Defendants' manipulated relative State-to-State dental participation ratios and a lack of convincing evidence that Defendants have cured the shortage of dentists found in 2000, the Court finds that no significant changed factual circumstances warranting dissolution of the Consent Decree exist with respect to Defendants' dental program. See Rufo, 502 U.S. at 392.
B. OUTREACH
As additional proof of the Texas Health Steps program's overall success, Defendants presented substantial evidence regarding Maximus, the company with which Defendants contracts to provide outreach and informing services. While Defendants do not purport to argue that Maximus' outreach and informing efforts, alone, justifY dissolution of the Consent Decree in its entirety,65 they proffer evidence of Maximus' efforts to show that Defendants, through Maximus, have made significant progress with respect to their outreach and informing efforts. Substantial progress has seemingly been made, although the results of this progress have yet to be fully realized. The Court begins by briefly summarizing its 2000 findings with respect to Defendants' outreach and informing efforts, then analyzes the evidence presented at the June Hearing in the process of determining that Defendants have presented insufficient evidence to prove significant changed factual circumstances warranting dissolution of the Consent Decree.
65 The Consent Decree paragraphs relating to outreach and informing include~~ I 0-74. 61

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Defendants failed to offer evidence of their past outreach and informing efforts; instead, their presentation consisted chiefly of a Maximus representative describing its policies and exhibiting its outreach materials. Furthermore, Defendants have failed to show how any alleged changed circumstances "make [the Consent Decree] unworkable, make compliance substantially more onerous or make enforcement detrimental to the public interest." Cooper, 33 F.3d at 544; see Rufo, 502 U.S. at 384. Instead, it appears that Defendants, through their contract with Maximus, have successfully incorporated Consent Decree requirements into their outreach and informing plan, which have certainly aided its performance in recent years.
2000 Findings It is, initially, noted that the Court found Defendants to be in violation of Consent Decree ~~ 32 and 52, relating to outreach, in its 2000 opinion. Frew, 109 F. Supp. 2d at 599. The Court found that the degree to which class members lacked knowledge regarding the Texas Health Steps program, in addition to low participation rates, minimal receipt of services after oral outreach, and insufficient staffing, prevented Defendants' outreach and informing efforts from being effective, as required by the Consent Decree. Jd.; Consent Decree~~ 32, 52. In contrast to the Court's 2000 inquiry, however, the Court is not currently determining whether Defendants are in compliance with the Consent Decree or whether Defendants' current outreach and informing efforts are effective;66 rather, the Court must determine whether any progress in Defendants' outreach and informing efforts constitutes significant changed factual circumstances

66 However, with respect to Cooper's requirement that Defendants must "show that those

changed occurred despite the county officials' reasonable efforts to comply with at 544, the Court must determine whether Defendants have reasonably attempted

the judgment," 33 F.3d to provide "effective"

outreach, as required by the Consent Decree. See discussion infra Part IV, for a discussion of

Defendants' efforts to comply with the Consent Decree.

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warranting modification of the Consent Decree. Cf Frew, 109 F. Supp. 2d at 594 ("[I]t is by no means clear that defendants' progress is at issue, as the decree does not require progress in these areas."); see Rufo, 502 U.S. at 391. The Court, below, details the current state of Defendants' outreach and informing efforts.
1. Maximus Outreach and Informing Since the 2000 Opinion, Defendants, through Maximus, have drastically revamped their outreach and informing efforts. Defendants first contracted with Maximus for outreach and informing in the fall of 1999.67 Tr. Vol. I, p. 95 (testimony of Melinda Metteauer). During the 2000 Hearing, however, the Court noted that it was still too soon to evaluate Maximus' performance. Frew, 109 F. Supp. 2d at 594, n.l9. The parties presented ample evidence at the June Hearing to evaluate the results of Maximus' outreach and informing efforts since 1999. Maximus is a government consulting and contracting organization that currently contracts with the State of Texas to conduct Texas Health Steps-related outreach and informing, in addition to emollment brokering services. See D. Ex. 20. Maximus provides outreach and informing services to Medicaid families with children younger than age 21, to inform them about Texas Health Steps and to assist them in accessing Texas Health Steps services. See Tr. Vol. I, p. 16 (testimony of Melinda Metteauer); D. Ex. 19; D. Ex. 20. Maximus receives $16 million annually from the State of Texas for its outreach and informing efforts. Tr. Vol. I, p. 29 (testimony of Melinda Metteauer). It employs 197 outreach workers statewide, a far cry from
67 Because Defendants entered into a contract with Maximus in 1999, 2000 is the first year for which the parties presented evidence regarding Maximus' outreach and informing efforts; but Defendants did not present evidence of their pre-2000 outreach and informing efforts. In order to determine whether factual circumstances have significantly changed since the entry of the Consent Decree, then, the Court refers to findings of fact contained in the 2000 opinion.
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about 10 total Texas Health Steps employees and contract workers in 1993. Tr. Vol. ill, p. 18 (testimony of Melinda Metteauer); see Frazar, 300 F.3d at 533. In its capacity as enrollment
broker, on the other hand, Maximus serves as an independent third party that provides information to those who are eligible for Medicaid managed care regarding the picking of a plan and enrolling in managed care in Texas. 68 Tr. Vol. I, p. 21 (testimony of Melinda Metteauer). Maximus performs outreach and informing services throughout all of Texas, while it performs enrollment brokering services for only those regions under managed care.
Maximus' project design for outreach and informing focuses on telephone contact, mailouts, and in-home visits. 69 Maximus receives lists ofEPSDT-eligible individuals from Defendants on a weekly basis and, pursuant to its contract with Defendants, Maximus has 60 days to make contact with each of the individuals on these lists. Tr. Vol. I, pp. 32-35, 56 (testimony of Melinda Metteauer). The first stage in Maximus' outreach and informing effort
68 Maximus' role as enrollment broker is discussed in Part III(B), infra. 69 Defendants' Post-Hearing Brief at 8. Defendants also presented substantial evidence of other types of outreach activities, including, inter alia, organizing and attending health fairs and connnunity events, attending family or parent meetings at Head Start programs, meeting with parent groups or children groups through school districts, scheduling medical and dental appointments and visiting class members at Women, Infants and Children Nutrition Program ("WIC") offices. D. Ex. 145 at 3-4; Tr. Vol. I, pp. 59-60 (testimony of Melinda Metteauer). Defendants, however, have failed to present sufficient evidence to prove the necessary amount of such outreach and whether or how it affects class members' education about, or utilization of, Texas Health Steps services. From the evidence presented, the Court has been given to understand that these types of outreach activities are a relatively minor part ofMaximus' outreach program design. While the Court considers these efforts in determining whether Defendants have satisfied Rufo's requirements, the Court's determination is chiefly based on the three most significant pieces ofMaximus' project design: telephone contact, mail-outs, and in-home visits. However, it is noted that the number of connnunity events attended has increased significantly, from 1,470 in 2000 to 16,652 in 2004. D. Ex. 23. With no evidence relating to how much of these activities are necessary to provide Texas Health Steps services to a class of more than 2.7 million, the Court does not find that these increases in outreach and informing activities constitute significant changed factual circumstances warranting revision of any specific provision of the Consent Decree. Similarly, the number of medical or dental appointments scheduled has significantly increased from 8,886 in 2000 to 59,284 in 2004. D. Ex. 23.
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entails efforts by call center staffto reach the listed EPSDT-eligible individuals by telephone. See D. Ex. 145 at 3 (testimony ofLyn Garcia). Maximus has a call center located in Austin and nine regional service areas, staffed by field outreach workers, to perform this outreach function. 70 Tr. Vol. I, pp. 133 (testimony of Melinda Metteauer); D. Ex. 19. By the end of the first week of this telephone effort, eligibles who either have no telephone or for whom the listed telephone numbers are incorrect or non-working are identified, and this information is provided to Maximus regional staff. The regional staff members then begin efforts to identify phone numbers and/or addresses for these individuals. Tr. Vol. I, p. 35 (testimony of Melinda Metteauer); D. Ex. 19. The eligibles who have still not been reached by phone or mail by day 45 are then designated for home visits by Maximus regional outreach staff members. Tr. Vol. I, p. 40 (testimony of Melinda Metteauer). Maximus also sends out various forms of letters and information to class members after the initial outreach contact. See D. Ex. 22. These mailings inform class members of program services and include periodic newsletters, letters to nonparticipants, letters to pregnant women, and letters to foster children. Tr. Vol. I, pp. 74-75 (testimony of Melinda Metteauer).
Plaintiffs' and Defendants' disagreements with respect to evidence relating to outreach and informing involve each of the three areas ofMaximus' outreach and informing project design: telephone contact, mail-outs, and in-home visits. Plaintiffs do not dispute Defendants' description ofMaximus' outreach and informing plan; rather, they argue that the process has not
70 Plaintiffs argue that Defendants' operation of only one call center, located in Austin, violates Consent Decree 'i[26, which states: "An outreach unit is the entity responsible for oral outreach in a geographic area of Texas. An outreach unit can be either (a) an agency that contracts with TDH to provide oral outreach services or (b) TDH staff." The Court will refrain from determining whether operation of only one call center violates Consent Decree 'i[26.
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produced significantly better results than past outreach and informing efforts. In addition to looking at the process Defendants choose to employ and determining whether their methods have significantly changed since the Decree was entered, the Court looks to the outcome of that process to determine whether significant changed factual circumstances warranting modification of the Consent Decree exist-e.g., the number of successful outreach contacts and whether information has been conveyed successfully.
Maximus compiles monthly data relating to its outreach efforts, including statistics for its call center and statistics for various forms of EPSDT client outreach. See D. Ex. 23. Plaintiffs argue that neither Maximus' efforts via telephone, mail-out, nor in-home visits constitute significant changed factual circumstances warranting modification ofthe Consent Decree. Defendants argue that the rise in annual contacts in each ofthese categories evidences significant changed factual circumstances.
Telephone Contacts While the number of total outbound calls and number of total completed calls decreased from 2003-04, as Plaintiffs argue, the general trend since entry of the Consent Decree indicates increasing numbers in each category. See D. Ex. 23. But, the rate of increase in numbers of calls placed and numbers of calls completed since 2000 is similar to the rate of increase in class size. Total outgoing calls increased from 396,358 in 2000 to 573,972 in 2004, while total calls completed increased from 272,367 in 2000 to 452,779 in 2004. D. Ex. 23 at 2. Total number of class members increased from 1,738,991 in 2000 to 2,706,903 in 2004. D. Ex. 94; D. Ex. 96. In other words, Maximus completed calls to approximately 16% of the class in 2000, while it completed calls to approximately 17% ofthe class in 2004. The increase in completed calls thus
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grew proportionately with the class and does not constitute a significant changed factual circumstance.
Maximus makes roughly 50,000 outbound phone calls per month for purposes of conducting outreach to program recipients and informing them of program services, combining both predictive-dialer technology" and manual dialing methods. Tr. Vol. I, pp. 49-50 (testimony of Melinda Metteauer); D. Ex. 23. However, this raw number of predictive-dialer technology calls is misleading, as extremely small percentages of predictive-dialer calls are actually completed.72 See D. Ex. 24. Plaintiffs argue that this low predictive-dialer completion rate is at least partly explained by Maximus' employing insufficient staff to both handle its inbound calls and maximize the efficiency of the predictive dialer technology.73 Tr. Vol. I, p. 146 (testimony of Melinda Metteauer). While the Court agrees that predictive-dialer efficiency is compromised by Maximus' staffing decisions, it does not necessarily follow that existing staff numbers are insufficient. Nor does it follow that numbers of outgoing calls are reliable indicators of the success of Defendants' outreach and informing efforts; instead, the Court relies on numbers of
71 Predictive-dialer technology automatically places calls to class members' phone numbers. Tr. Vol. I, pp. 53-55 (testimony of Melinda Metteauer). "[I]t conserves the time of the call center counselor so that their time is spent only talking to clients, not waiting for a phone to ring." !d. at 54.
72 For example, from September 2003 through August 2004, the highest monthly percentage of contacts was 17.2 percent of numbers dialed. D. Ex. 24 at 2. Out of a total of21,453 total number of case names, only 3,682 were actually contacted in August 2004 using Defendants' predictive dialer technology. Id. While the Court commends Defendants and Maximus for employing new technologies to accomplish outreach and informing, sheer numbers of outbound calls are not the mark of success; instead, these calls must actually be answered, and the class member contacted must be provided with the information Defendants, through Maximus, aspire to provide.
73 In other words, Plaintiffs argue that the predictive-dialer places the calls, although no staff is available to talk to any class members who then answer the calls.
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completed calls to aid its determination of whether significant changed factual circumstances exist.
Total calls received has also slowly increased, from 294,241 in 2000 to 495,500 in 2004. 74 D. Ex. 23. These data are relevant to the instant Rule 60(b) Motion because, for example, an increase in calls received may evidence increased provision of information about who to call with questions about Texas Health Steps. Nevertheless, the corresponding increase in class size by more than 1,000,000 children between 2000 and 2004 renders this increase in class members' incoming calls insufficient to constitute significant changed factual circumstances warranting dissolution of the Consent Decree. Also with respect to incoming calls, the Court finds that Maximus' toll-free number's "abandonment rate" and "average wait in queue" have not been significantly reduced since 2000.75
Defendants' outreach calls, on the other hand, increased from 442,037 in 2000 to 2,053,400 in 2004. D. Ex. 23. In percentage terms, Maximus' outreach calls totaled 25% of the total number of class members in 2000, whereas they totaled 76% of class members in 2004.
74 In Defendants' Post-Hearing Brief, they recount the sum of the total inbound calls received and the sum of calls they answered between 2000 and 2005, apparently as an indication of the success of their call center. The Court notes, though, that a raw sum of five years of calls is entirely irrelevant to prove the requirements of Defendants' Rule 60(b) motion. It does not take into account the size of the class, does not provide any standard by which to measure whether the numbers they cite are sufficient to prove Defendants' provision of outreach and informing services, nor does it prove changed circumstances.
75 "Abandonment rate" and "wait in queue" are two important criteria in evaluating a toll-free number's performance. See Frew, I09 F. Supp. 2d at 644. "Abandonment rate" is the percentage of callers who hang up before speaking to a live person, while "wait in queue" is how long the caller must wait to talk to a person once the call is initially answered. Maximus' Texas Health Steps toll-free line had an average abandonment rate of 8.58% for 2004, up from 7.26% in 2000. D. Ex. 23. The Court notes that Maximus has not exceeded a 10% abandonment rate for any month in the years 2000-04. Tr. Vol. I, p. 49 (testimony of Melinda Metteauer); D. Ex. 23; see Frew, 109 F. Supp. 2d at 644. The average wait in queue for the Texas Health Steps hotline in 2000 was 26.13 seconds; but, it increased to 66 seconds by 2004. D. Ex. 24 at 1.
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The Court finds that this aspect of Maximus' outreach and informing effort experienced significant changed factual circumstances. Nonetheless, Defendants do not direct the Court to, and the Court does not sua sponte find, any specific Consent Decree provision wanting modification as a result of this change. Furthermore, Defendants have failed to show how this changed circumstance affect compliance with, or the workability or enforcement of, the final judgment, or that those changes occurred despite the county officials' reasonable efforts to comply with the judgment. See Cooper, 33 F.3d at 544; Rufo, 502 U.S. at 392.
Mail-Outs and Materials Distribution In 2000, Maximus mailed 358,301 letters; in 2004, it mailed 465,637letters. D. Ex. 23. Again, with an increase in class size of approximately 1,000,000 between these years, an increase of approximately I00,000 letters is insufficient to prove significant changed factual circumstances. In 2000, Maximus mailed letters to approximately 20% ofthe class, whereas in 2004, Maximus mailed letters to approximately 17%. D. Ex. 23: D. Ex. 94; D. Ex. 96. The number of materials distributed in connection with Maximus' EPSDT community outreach has declined since Maximus began tracking this statistic. In 200 I, the first year for which Maximus compiled data for "Number of Materials Distributed," it distributed 6,032,034 materials; in 2004, it distributed 4,630,380. D. Ex. 23. This decrease fails to support Defendants' assertion that Maximus' efforts have met with substantial success since 1999.
In-Home Visits Finally, Defendants dispute Plaintiffs' assertion that decreasing numbers of in-home visits reflect the declining quality of Defendants' outreach efforts. Defendants insist that in-home visits are ineffective and that resources are more wisely allocated to other forms of outreach. The
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Court notes that neither federal law nor the Consent Decree mandate a specific number of inhome visits that Defendants must perform.76
Defendants argue that "[u]nsolicited in-home visits are not an effective way to conduct outreach and informing activities. Experience has shown that these visits are not always productive." Defendants' Post-Hearing Brief at 17. To accept Defendants' logic with respect to the efficacy of in-home visits based on a few complaints, though, would be akin to accepting the testimony of a handful of parents with children in the plaintiff class as dispositive of the overall quality of Texas Health Steps. While the isolated experiences of some workers illuminate some of the obstacles and dangers inherent within in-home visits, they are not convincing proof that inhome visits should be eliminated. Indeed, if the fact that in-home visits "are not always productive" is sufficient to warrant eliminating them from the State's outreach plan, all facets of Defendants' outreach plan are vulnerable to elimination.
Frank Moore, Ph.D., disagrees with Defendants' assessment ofthe effectiveness of inhome visits.77 Dr. Moore testified that current research indicates that "a more active engagement
76 While the Court agrees that in-home visits are an effective means of outreach, it does not find that in-home visits should constitute any specific portion of Defendants' efforts. Instead, it analyzes any change in numbers of in-home visits purely to determine whether significant changed factual circumstances warranting revision of the Consent Decree exist. Plaintiffs and Defendants disagree on the proper mix of outreach methods; thus, the Court declines to pass judgment on this issue, as it is beyond both the scope of this motion and beyond the four comers of the Consent Decree. See United States v. Armour & Co., 402 U.S. 673, 682 (1971); Rule 60(b)(5).
77 During the December 1995 hearing, the Court ruled that Dr. Moore was an expert in the field of public health as it applies to the issues in this lawsuit. Without objection, the Court again ruled at the June hearing that he continues in that capacity. Tr. Vol. IV, p. 34 (testimony of Dr. Moore). Dr. Moore is a Professor at the University of Texas School of Public Health and has been on the faculty there since 1977. Id. at 40. He was staff to the United States Senate Committee that drafted the original Medicaid Act and has also been actively involved in the training and assessment of outreach workers. Id. at 53, 111. In addition to his own extensive experience in the field, Dr. Moore relied on a 2005 Cohrane Collaboration review of the effectiveness of face-to-face outreach by community-based workers in
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with families to assist them in problem solving to strengthen that family's capacity is ... important, it is effective, and, indeed ... for many families ... that is an essential requirement for them to be able to participate" in Texas Health Steps. Tr. Vol. IV, p. 35 (testimony of Dr. Moore). He testified that face-to-face visits
afford the opportunity to all parties to explore the barriers in some detail and, more importantly, to begin to assist the family in understanding what resources are available to them to deal with those barriers .... It is entirely likely that each family will present a unique set ofconstraints, barriers, and in order to individualize the help necessary for that family, it's really most effectively done face-to-face. Tr. Vol. IV, p. 56 (testimony of Dr. Moore). The Court continues to agree with Dr. Moore that in-home visits are effective and, indeed, essential for some class members. See Frew, 109 F. Supp. 2d at 593 ("Although the decree does not mandate that a certain proportion of defendants' outreach contacts be home visits, it is found that defendants are not adequately availing themselves of the opportunity to use one of the most effective means of outreach."). Despite arguing that they are an ineffective means of conducting outreach, however, Defendants take pride in the alleged formidability ofMaximus' numerous in-home visits. Defendants argue that Maximus has made at least 1,011,878 home visits since 2000, for purposes of conducting outreach and informing activities. D. Ex. 23 at 2. Defendants extoll a five-year sum of in-home visits, which is irrelevant to prove changed circumstances. The Court is unimpressed with numbers reaching into the millions; with over 2.7 million class members in 2004, all of Defendants· services should be provided to millions of class members. Significant changed circumstances with respect to Defendants' outreach and informing efforts is, instead, the
arriving at his conclusions about in-home visits. !d. at 65. The Collaboration concluded that communitybased outreach workers are effective in improving utilization of preventive health care. Tr. Vol. IV, pp.65-66 (testimony of Dr. Moore).
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relevant inquiry. Despite an increase of967,912 class members between 2000 and 2004, the number of in-home visits increased by only 28,930 during the same years. D. Ex. 23 at 2; D. Ex. 94; D. Ex. 96. Thus, the percentage of class members receiving in-home visits decreased from 6.2% in 2000 to 5% in 2004. While the Court does not find this to be a significant changed factual circumstance for the worse, it certainly does not aid Defendants' argument that Maximus' outreach and informing efforts have resulted in significant changed factual circumstances for the better.
2. STAR MCO Outreach aud Informing A separate and distinct part of Defendants' outreach and informing effort consists ofthat provided by Defendants' STAR MCOs. Defendants argue that Maximus' outreach and informing efforts, combined with Defendants' STAR MCOs' efforts, adequately inform and encourage class members to utilize Texas Health Steps services, thus constituting a significant change in factual circumstances warranting dissolution ofthe Consent Decree. While Dr. Moore testified that STAR MCOs' redundancy does not improve outreach effectiveness, because it suffers from the same defects as Maximus' efforts/' Defendants argue the supplementation, nonetheless, enhances the outreach and informing services that Plaintiffs receive, as the number of telephone calls, mail-outs, and in-home visits increase in managed care areas. While the Court accepts Defendants' argument that STAR MCOs' outreach and informing efforts supplement Maximus' efforts to some extent, Defendants have failed to present evidence regarding how many STAR MCO calls, mail-outs, or in-home visits reach class
78 For example, Dr. Moore testified that Maximus' and STAR MCOs' outreach and informing plans rely too heavily on telephone contact and emphasize process over results. See Tr. Vol. IV, p. 51 (testimony of Dr. Moore).
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members not also reached by Maximus; Defendants have also failed to present evidence establishing that STAR MCOs have access to any information not also accessible by Maximus. Because the STAR MCOs and Maximus are likely working from similar lists, containing identical contact information, the most reasonable assumption is that class members easily contacted via telephone or mail-outs will be contacted by both Maximus and Defendants' STAR MCOs. In other words, Defendants have failed to establish the amount of duplicated outreach efforts or otherwise prove that Maximus' and STAR MCOs' efforts reach different members. Accordingly, the Court bases its conclusions of!aw with respect to outreach and informing efforts primarily on its findings of fact respecting Maximus' outreach and informing efforts.
3. Confusion Regarding Texas Health Steps Services In addition to rebutting Defendants' statistical evidence regarding the degree of success of Defendants' outreach and informing efforts, Plaintiffs presented extensive credible anecdotal evidence detailing mass confusion among class members about the services offered by, and utilization process for, Texas Health Steps. While this anecdotal evidence, alone, is not dispositive ofthe state of Defendants' outreach and informing efforts, the Court finds that it illuminates the confusion among class members with respect to Texas Health Steps services and supports the Court's conclusion that outreach and informing efforts have not significantly improved. Despite Maximus' and STAR MCOs' outreach and informing efforts, Plaintiffs argue, class members and their families continue to be confused about basic aspects of Texas Health Steps, such as Medicaid benefits and medical and dental checkups. See Frew, 109 F. Supp. 2d at 590-94 (detailing, as of2000, class members' confusion with respect to the Texas Health Steps program).
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Some class members have never heard of Texas Health Steps, even after registering their children for Medicaid. See Lloyd Deposition at 9. As a result ofthis confusion regarding the programs, many class members are unaware of the basic services they could receive or how to obtain those services. Evidence from health care providers supports the conclusion that class members and their families are ill-informed regarding Texas Health Steps and available services. Because many patients do not have even a basic knowledge of the program, one health care provider said she must explain the program to families "as if they've never heard it before." Lloyd Deposition at 9. This confusion results in a lack of understanding among parents regarding the benefits of early and essential care such as checkups or immunizations. Id. For example, in Harris County, "parents do not know what their children are entitled to through the Medicaid program. They don't know as a rule when ... checkups are due .... This is typically true even if the child has had Medicaid for a long time. Parents typically do not know anything about the benefits of preventative care ... even if the child has been on Medicaid for years." Misek Deposition at 2; see also Fette Deposition at 5 (Denton area); James Deposition at 4 (Dallas area).
Plaintiffs further offered credible evidence that mass confusion exists among class members with respect to dental services available through Texas Health Steps and procedure to access those services. Class members, Plaintiffs argue, do not understand the concept of preventive dental care or even that dental care is covered by Texas Health Steps. Tr. Vol. VII, p. 150 (testimony ofDietmar Keune!). Many parents are simply "not aware that dental care is a covered benefit for their children." Prachyl Deposition at 16. Approximately 60% offamilies are not aware that Medicaid covers dental care. Tr. Vol. VII, p. 184 (testimony of Karen Clemmer). Lacking awareness of this basic dental coverage, many children on Medicaid never visit a dentist. Prachyl Deposition at 16. The Court finds that the plaintiff class remains largely
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confused about basic aspects of Texas Health Steps, such as Medicaid benefits and medical and dental checkups, in addition to how to access Texas Health Steps services.
4. Conclusions of Law: Outreach While Maximus' outreach and informing plan and Defendants' $16 million annual expenditure are impressive and certainly contribute to Defendants' progress with respect to outreach and informing, they do not prove widespread success or effectiveness of Maximus' outreach and informing efforts.79 Similarly, though Maximus' outreach materials are seemingly well-crafted, easy to understand and contain useful information, their existence does not prove significant changed factual circumstances. To be effective, these materials must actually reach class members, and/or Maximus employees must actually speak voice-to-voice or face-to-face with class members. The Court finds that Maximus has a noteworthy outreach and informing plan in place, although the recency of its establishment has seemingly prevented realization of its effects as ofthe June Hearing. As discussed in Part II(A), the Court finds the CMS-416 participation ratio and dental participation ratios presented at the June Hearing evidence neither class members' improved utilization of Texas Health Steps services nor significant success of Defendants' outreach and informing efforts. The Court finds that much of the evidence of Defendants' improved outreach and informing efforts is undermined by this lack of improvement in actual provision of medical checkups and dental services, as detailed in Part II(A). Cf Frew, 109 F. Supp. 2d at 593-94 ("Much of the evidence of improvement is severely undermined by the low levels of success that have characterized defendants' outreach program."). Thus, independent of the statistics
79 While the Fifth Circuit noted the magnitude of Texas' outreach and informing expenditures, Frazar, 300 F.3d at 533, it did not imply that expenditure alone is a sufficient measure of Texas' outreach and informing performance. Indeed, expenditure, alone, is always a poor proxy for success.
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discussed in Part II(B)(l) and (2), the findings of fact with respect to medical checkups and dental services demonstrate a lack of significant changed circumstances with respect to Defendants' outreach and informing efforts.
The Court further finds that Maximus' telephone efforts have increased since it began conducting outreach and informing services for Defendants, although in rough proportion to the increase in class size and not in a manner indicating significant changed circumstances satisfYing Rufo's requirements. See Rufo, 502 U.S. at 384. The slight increase in Maximus' mailing campaign and numbers of in-home visits similarly do not constitute significant changed factual circumstances, as both have also increased only in rough proportion to, or slower than, the increase in class size. Class members' continued confusion about basic aspects of Texas Health Steps also supports the Court's conclusion that significant changed factual circumstances do not exist with respect to Defendants' outreach and informing efforts.
In sum, the Court finds that neither the individual outreach and informing efforts of Maximus, that of Defendants' STAR MCOs, nor their combination constitute significant changed factual circumstances warranting modification of the Consent Decree. See Rufo, 502 U.S. at 384. C. CASE MANAGEMENT
In opposition to Defendants' Rule 60(b) Motion, Plaintiffs also argue that Defendants' case management program has not significantly improved. The Court agrees. The Comt, in 2000, succinctly described case management:
"Case management" refers to the service provided by"case managers," or employees of the state who help families to navigate the often confusing health care system. Case management helps indigent families to develop coherent plans to take care of
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their children's health care and related needs. Case managers also work to help empower families to request health care services on their own. Their support can often be crucial for class members and their families, who are largely uneducated and unfamiliar with the state's health care system in general, and with Texas Health Steps in particular. Thus, case management plays a vital role in facilitating recipients' access to needed medical, social, and educational services. Frew, 109 F. Supp. 2d at 646. The Department of State Health Services ("DSHS") administers the Case Management for Children and Pregnant Women ("CPW") program, "which is available for a child or pregnant woman having a health risk or a health condition above and beyond their peers' and who is having trouble accessing services." Tr. Vol. ill, p. 22 (testimony of Margaret Bruch). Defendants also offer other case management services, including Early Childhood Intervention (children under three years of age), Texas Commission for the Blind, Mental Health and Mental Retardation ("MHMR"), and Children with Special Health care Needs ("CSHCN"). P. Ex. CM-1. Plaintiffs argue that Defendants' case management programs have recently been seriously curtailed, thus revealing yet another lack of significant changed circumstances warranting modification of the Consent Decree. Based on the evidence presented, the Court finds that Defendants' case management program has not experienced significant changed factual circumstances warranting modification of the Consent Decree and supports the Court's conclusion that Texas Health Steps, as a whole, has not experienced significant changed circumstances warranting dissolution of the Consent Decree. First, the cumulative number of class members served by Defendants' case management programs in 2004 was about 79,000 class members; in the first two years of the program, fewer than 33,000 class members received case management services. Tr. Vol. ill, pp. 129-30 (testimony of Margaret Bruch). In other words, roughly 3% of the class received case
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management services in 2004, up from roughly I% in 1998. !d.; D. Ex. 94; D. Ex. 96. In 2000, the Defendants estimated that about 5-7% of the plaintiff class required case management assistance, while Plaintiffs estimated that about 10% of the class requires the service. See Frew, 109 F. Supp. 2d at 647-48. While Defendants have since reduced their estimate of the number of class members requiring case management assistance to a figure less than their 2000 estimate, see Tr. Vol. ill, p. 138-42 (testimony of Margaret Bruch), the Court finds that neither the current 3% utilization of case management services nor Defendants' reduced estimate of class members' need indicates significant changed factual circumstances warranting modification ofthe Consent Decree.
Furthermore, insufficient evidence was presented to determine whether Defendants have cured the problems found in 2000 relating to recruitment, class members' knowledge regarding case management services, and accessibility in rural areas of the State. See Frew, 109 F. Supp. 2d at 646-54. It is of note that in 2000, Defendants had enrolled 162 case managers, and 41 were inactive. Frew, 109 F. Supp. 2d at 650. In 2004, only 178 providers were enrolled, and only 73 were active in the entire state. P. Ex. CM-3. Thus, the number of active case managers has decreased from 121 (2000) to 73 (2004), while the size of the class has grown by about one million. P. Ex. CM-3; D. Ex. 94, D. Ex. 96.
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PART THREE: DISSOLUTION AS TO ALL URBAN AREAS OF TEXAS Apart from demanding dissolution of the Consent Decree in its entirety, Defendants demand, in the alternative, that the Consent Decree be dissolved as to all Urban Areas of Texas. In support ofthis demand, Defendants assert that they are in compliance with federal law in all Urban Areas of the State, exclusive of the areas of the State not under managed care. As discussed in Part I(B)(3)(c), compliance with federal law, alone, is insufficient to necessarily warrant relief under Rule 60(b). Nevertheless, the Court will make findings of fact with respect to Defendants' STAR MCOs, to determine whether Defendants have established significant changed factual circumstances warranting the modification they seek. See Rufo, 502 U.S. at 392. Because the Court finds that Texas Health Steps' overall performance is insufficient to warrant modification ofthe Consent Decree in its entirety, the Court's inquiries in this section of the opinion are whether Defendants have proved any of the following: (1) STAR MCOs' performance is significantly superior to the performance of non-managed care Medicaid in Texas; (2) STAR MCOs' performance is significantly superior to the overall performance of Texas Health Steps; or (3) Defendants have established other significant changed factual circumstances demonstrating that dissolution of the Consent Decree is warranted with respect to the Urban Areas of Texas. In this analysis, the Court does not consider STAR MCOs' performance relative to the performance ofMCOs in other States;80 indeed, State-to-State MCO
80 Rule 60(b) does not permit Defendants to simply prove that the MCOs are comparable to the national average for MCOs, assert that such a finding necessitates a finding of compliance with federal law, and thus be entitled Rule 60(b) relief; as discussed in Part I(B)(3)(c), Rule 60(b) is not simply a second chance for Defendants to litigate Plaintiffs' claims on the merits. Because Defendants' only asserted basis for warranting relief under Rule 60(b) is compliance with federal law, which the Court rejects, the Court will attempt to analyze Defendants' evidence under the appropriate Rule 60(b) standard, in such a way as to preserve their argument and arrive at an equitable result.
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comparisons prove neither STAR MCOs' superior performance as compared to Texas Health Steps as a whole nor distinguish Defendants' STAR MCOs from non-managed care areas of T e x a s . 81
It is also noted that the Court visited managed care issues in its 2000 Opinion. See Frew, 109 F. Supp. 2d at 618-37. Similar to the 2000 Hearing, much of the evidence introduced at the June Hearing concerned Defendants' managed care programs throughout the State. !d. at 618. The Court, in 2000, analyzed the performance of Defendants' managed care programs at that time and found them inadequate; accordingly, the Court found Defendants to be in violation of Consent Decree 'l]'l]190 and 192.82 !d. at 618-37. The managed care programs operating in Texas today, however, have been more fully implemented and are much more prevalent than those operating in 2000. 83
81 Defendants also make multiple arguments comparing STAR MCO performance to commercial managed care. The Court makes no findings of fact with respect to these arguments because relative performance between Medicaid managed care and commercial managed care is not in issue; Defendants, through their alternative demand that the Consent Decree be dissolved as to only Urban Areas under managed care, seek to draw a distinction either between Medicaid managed care and non-managed care Medicaid, or between Medicaid managed care and the Texas Health Steps program as a whole. As the Court has found that significant changed factual circumstances warranting modification of the Consent Decree do not exist with respect to Texas Health Steps as a whole, Defendants must distinguish their managed care program in order to warrant relief Consequently, comparisons between STAR MCOs and either other States' MCOs or commercial managed care are irrelevant.
82 More specifically, the Court found that Defendants were in violation of Consent Decree '1[190, for the failure to provide the "timely receipt of the full range of EPSDT services, including but not limited to medical and dental checkups," and in violation of Consent Decree '1[192 for failing to "assure medical and dental checkups in a timely manner to all [managed care] recipients." Frew, 109 F. Supp. 2d at 631, n.l05.
83 "In 1999, the Texas legislature declared a moratorium on the further expansion of managed care for class members and other Texas Medicaid recipients. However, a future continuation of the 'rollout' of managed care is considered likely by all parties." Frew, 109 F. Supp. 2d at 618, n.73 (citations omitted). The parties' prophecy has been realized; managed care organizations currently operate in nine Texas regions, and Defendants plan to expand managed care throughout Texas in the fall of 2005. P. Ex. MAN-2; P. Ex. MAN-3; P. Ex. MAN-4.
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Plaintiffs and Defendants also again presented evidence depicting the advantages and disadvantages of managed care generally. 84 As the Court noted in 2000:
The breadth and difficulty of the public policy questions they have raised is apparent. While it forms the subject of much debate and discussion in the realm of public policy, the viability of managed care is not, and should not be, on trial in this proceeding. Whether or not to continue the rapid expansion of managed care is an issue for the legislature alone. Frew, 109 F. Supp. 2d at 620. Similarly, the Court's focus, for purposes ofthe instant Rule 60(b) motion, is not on these questions ofpublic policy. Instead of determining whether managed care is the best method of delivering EPSDT services, the Court, in making its determination, looks only to the results of whichever EPSDT service delivery mechanism Defendants, "with front-line responsibility for administering the program," choose to utilize. Frew, 540 U.S. at 442. The Court begins its analysis with an overview of managed care in Texas and MCOs under the STAR contract. Next, it analyzes data compiled by the Texas External Quality Review Organization for Medicaid Managed Care and CHIP. Finally, it details other STAR MCO inadequacies about which Plaintiffs presented evidence.
84 For example, Defendants argue that managed care-whether commercial or not-always creates administrative burdens. Tr. Vol. VII, pp. 14-15 (testimony of Dr. Hellerstedt). These burdens include establishing a particular network of providers, the requirement for prior authorization for specialist care, elective admissions and expensive diagnostic tests, and preferred drug formularies. !d. MCOs also limit provider choice by requiring patients to make selections from its network of providers. !d. at 15. However, Defendants argue, managed care provides benefits that compensate for its administrative burdens; the main benefit is the ability to provide a medical home. !d. at 16. For example, in theory, the existence of a medical home allows the primary care provider to know about the other medical services that the patient is receiving and thus provide more effective health care. !d.
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A. MEDICAID MANAGED CARE IN TEXAS Defendants, through the STAR MCOs with which they have contracted, currently employ
two managed care models: primary care case management ("PCCM") and health maintenance organizations ("HMOs"). SeeP. Ex. MAN-2 at 8-4. All of the plans in the STAR program, with the exception of Texas Health Network, are HMOs. P. Ex. MAN-2 at 8-4. Approximately 77% of class members enrolled in managed care are members of Defendants' STAR MCOs; thus, only 23% of class member are enrolled in PCCM managed care. D. Ex. 96 (total class members enrolled in managed care); D. Ex. 82 at 4 (total class members enrolled in STAR MCOs). In most populated areas of the State, including Dallas, Houston, San Antonio, El Paso, Fort Worth, and Lubbock, persons who are eligible for Texas Health Steps automatically participate in Medicaid managed care. Tr. Vol. I, pp. 22-23 (testimony of Melinda Metteauer).
PCCM and HMO models share several characteristics, two of which are particularly relevant to the Court's analysis for purposes of the Rule 60(b) motion.85 First, in either model, each class member chooses or is assigned a primary care provider ("PCP"). The primary function of the PCP is to provide each class member with a "medical home," including comprehensive preventive and primary care. PCPs are also typically charged with approving other forms of care that class members may need, such as most forms of specialty care.86 See Tr. Vol. VII, pp. 14-15 (testimony of Dr. Hellerstedt); Tr. Vol. II, p. 30 (testimony of Martin
85 See Frew, 109 F. Supp. 2d at 618-19 (describing more extensive managed care program characteristics generally).
86 The Court notes that not all STAR MCOs require PCP approval, known as a referral, t~ visit a specialist. See Tr. Vol. V, p. 22 (testimony of Kim Nettleton) (Community Health); Tr. Vol. IT, pp. 121-
22 (testimony of Paige Alvarado) (First Care). 82

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Jimenez) (Community First). In other words, PCPs' assist class members and coordinate their basic health care needs, while they also function as gatekeepers who may limit the care that class members receive. SeeP. Ex. MAN-2 at 8-4. Second, both models involve specific networks of providers and, therefore, limit clients' choice of providers to those under contract with the specific MCO of which they are a member.
Compensation schemes, however, vary with respect to different managed care models. Typically, the compensation arrangement determines who is responsible for managing the health care of an MCO's members and, additionally, who bears the risk of providing services that are
medically necessary. In capitated fee models, [MCOs] are paid flat fees by Medicaid to provide services for their patients. The MCO assumes the risk of providing services that are medically necessary. The model is based on the theory that when organizations are paid a flat fee to serve their patients, they will provide cost-effective preventive care in an effort to avoid the costs of expensive treatment of acute conditions.
Frew, 109 F. Supp. 2d at 618. In other words, the MCO receives a flat fee per member per month in exchange for managing its members' health care, which it then uses to compensate its providers for providing health care to its members. Texas HMOs typically employ the capitated fee model.87
In primary care case management, however, individual health care providers are paid a small monthly fee to arrange referrals and other needed services for patients, and providers are also paid a fee for the services they provide. See Frew, 109 F. Supp. 2d at 618. In other words, primary care case managers receive the capitated fee for managing the patients' health care,
87 See, e.g., Tr. Vol. II, p. 102 (testimony of Paige Alvarado) (First Care) (stating the that capitated fee model is preferable); Tr. Vol. II, p. 197 (testimony of Aron Head) (Amerigroup).
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instead ofthe HMO, in addition to receiving fees for the services they provide. In primary care case management, Defendants continue to assume the risk of providing services that are medically necessary rather than shifting the liability to an MCO.
The parties have presented arguments relating to incentives the various compensation arrangements create. For example, Defendants argue that reimbursing doctors on a fee-forservice basis, rather than a capitated basis, provides them with an incentive to offer more preventive care. Tr. Vol. II, p. 103 (testimony of Paige Alvarado). Similarly, compensating an MCO on a capitated basis encourages the MCO to increase preventive services in order to prevent large expenditures on emergency service, thus saving the MCO money in the long run. Tr. Vol. II, p. 103 (testimony of Paige Alvarado). As a result, argue Defendants, the compensation system is optimally designed to maximize financial incentives for the provision of preventive and wellness care. Tr. Vol. II, p. 103 (testimony of Paige Alvarado). Plaintiffs, on the other hand, argue that compensating MCOs on a capitated basis creates an incentive to minimize utilization of services, to ensure that the capitated payment covers the services that are medically necessary. While the incentive structure of Defendants' managed care program is indeed an important issue, it is beyond the scope of Defendants' Rule 60(b) motion and, like managed care implementation generally, an issue for the legislature alone. The Court, as previously mentioned, will not pass judgment on Defendants' method of operating the EPSDT program outside the context of the Consent Decree, federa1law, and changed factual circumstances.
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B. MCOs OPERATING IN TEXAS' URBAN AREAS
Maximus, in its capacity as enrollment broker, is the first step in enabling class members' participation in Defendants' managed care program. Once a household in an area served by a managed care organization is determined to be eligible for Medicaid, Maximus, as enrollment broker, receives a notice of its eligibility in electronic form from the State.88 Maximus then sends out an enrollment kit explaining the basic information about the enrollment process and, likewise, information about the various managed care plans that serve the class members' geographic area. The enrollment kit is so designed as to include a provider list for each health plan serving that geographic area, an enrollment form, and a toll-free number that recipients can call for assistance in enrolling. If the recipient neither calls nor enrolls, Maximus begins proactive enrollment outreach. Proactive outreach includes phone calls and in-home visits for certain populations, and its purpose is to assist recipients in choosing an appropriate managed care plan and selecting a provider to serve as their PCP. Tr. Vol. I, pp. 25-27 (testimony of Melinda Metteauer).
As an initial matter, Defendants' presentation did not focus on changed circumstances. Instead, the majority of Defendants' evidence consisted ofrepresentatives from Parkland Community Health (Dallas), Community Health Choice (Houston), Community First (San Antonio), First Care (Lubbock) and Amerigroup (Austin), describing their MCOs' policies.89
88 Defendants did not present evidence regarding how they initially detennine eligibility. Maximus works with a list created by the State, but the Court has not been made aware of the process by which the State creates the list. This is particularly troubling, since compiling an accurate and complete list of Medicaid-eligible class members is one of the most crucial steps in EPSDT outreach.
89 Additionally, Defendants presented a report entitled "Parents' Satisfaction with their Children's Health Care in the STAR MCO Program," D. Ex. 88, and also one entitled "STAR Statewide
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The Court notes that much of Defendants' evidence in this regard is inconsequential for purposes of the instant motion because it evidences neither changed factual circumstances nor the alleged widespread success of the STAR MCOs as compared to traditional fee-for-service Medicaid. As stated previously, evidence relating to Defendants' and STAR MCOs' service plan is not dispositive of the provision of the services; the Court relies chiefly on statistics presented by Defendants, taking into account the methodologies employed, so as to evaluate the current state of Texas' managed care EPSDT program.90 The Court presents a brief overview of each STAR MCO about which evidence was presented.
Parkland Community Health ("Parkland") is an MCO serving recipients in the Dallas Service Area. It has approximately 125,000 members, and the vast majority of its members are on Medicaid. Tr. Vol. IV, p. 122 (testimony of Dr. Lachman"). When a new recipient enrolls in

Enrollee Satisfaction Report," D. Ex. 89. While the Court connnends Defendants for having such reports pwcwurhaerreprretaahnrneettrdqrSueinTelisAeatifnRounenMfdbfoCeerrfOtoRtropeuelitermhfe6op0rCrm(oobvau)en.rctt.FheeiTnisSdhsiTenoACgssRouuocMrcfte,fCsaisOcnftutprhlerecloaoegtmxirnaepmgract,rioestedhpeotayorfeajtunhreadtstib'coesiyaaftlonironsefndsa-tctmrhtaieaionnnltia,mgwneiietdteehdcdSasorTcenoAlMpyRedeModetifeCctrahOmiedsinaises, to rtehenaersroeolflnoerdthe,iantbtDeryaeodfneitndiodtnahaneltssfcedoeip-dfeonroo-ftseDprrveefisceeenndMtaanentdysi'ceaavliitdde.rennSaceteievPree.llyaEtdxine.gm7,taon8dt(heeedxspraleatliiisnefifanucgntitdorenardoiRtfiupolanerae6l,n0tf(sebe)o-,fffocorhr-istlehdrerveince Medicaid and Medicaid managed care).

90 Accordingly, many of the details regarding what STAR MCOs do in theory will be disregarded mitcnhoeanfnaspavtoigotleuricdtoiinecfsgaartncehheaoamnrngasglaeyenlsdviizescasiotridcfoounthmsneosarttraeennseugccleeterssmsotshaarnoroieslteyhinetphrrtweohoveisreieseetswhnehsaearervftahefniacattiatnticatgyisnrhoeeofdliwt.ehsfeWutphnhoediylleiecrditReehsseuilropeero6trloei0cf(pilbeer)osc.vtoiIadfnnetshtoeceuaetvdrcta,oartimihnoeeusseCrovuicrets's, analysis is outcome-based, looking to evidence which may show Plaintiffs' superior access to, and the enhanced effectiveness of, STAR MCO services.

91 Barry Lachman, M.D., is the medical director for Parkland. Dr. Lachman is a pediatric

physician who has performed approximately 3,000 Texas Health Steps areas ofpediatric medicine, public health, and Medicaid managed care

checkups. He organizations.

is an expert in the Tr. Vol. IV, pp.

118-20 (testimony of Dr. Lachman).

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Parkland, he or she, according to the plan, is to receive a welcome phone call and a welcome packet explaining how to use the plan. Tr. Vol. IV, p. 124, 130 (testimony of Dr. Lachman). Parkland also conducts outreach and informing separate from the outreach that is conducted by Maximus on behalf of the State. Tr. Vol. IV, p. 151 (testimony of Dr. Lachman). Furthermore, Parkland operates a toll-free number whose aim is to provide information to its members, including information regarding Texas Health Steps. Tr. Vol. IV, p. 139 (testimony of Dr. Lachman). Per its policy, Parkland offers case management services, facilitates making appointments, and arranges needed transportation for its members to medical appointments. Tr. Vol. IV, pp. 125, 127 (testimony of Dr. Lachman). Parkland's case management program includes 18 case managers, and it contracts with over 500 primary care providers in the seven counties it serves. Tr. Vol. IV, p. 125-26, 131 (testimony of Dr. Lachman). If a member needs access to a specialist that is not participating in Parkland's plan, Parkland's case management staff aspires to arrange for an out-of-network referral.92 Tr. Vol. IV, p. 147 (testimony of Dr. Lachman).
Community Health Choice ("Community Health") is an MCO that serves clients in the Houston area, including Harris, Montgomery, Waller, Brazoria, Fort Bend, and Galveston counties. It serves only Medicaid clients, and the plan has about 50,000 members. Tr. Vol. IV,
woanfadTs eraexccaceso9i2mvweDpeterlhiefseehpnetedrdraaf:nnoastrpsmm,laitennhmgtr.obiuneTgrtreh.nsVetDienord.ale.lLdItaVraca,nlnnpsin.pnalt1nae4n,s7ttdisn(e.taseclPsrttairibrmakenoldsanpnayldasonaittfru,rDaabtnrui.gotLneadaticntflhonwarnthatthinicem)h.mea,TennhmooebupCeth-rooytufos-rintctreicaatowvnmesolmrintkoetrnhMedefseiaSrmrtaailte Parkland and Defendants for succeeding in this referral.
87

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p. 181 (testimony of Kim Nettleton93). The welcome packet, which Community Health attempts to provide to all newly enrolled members, includes an explanation of how to read the Medicaid identification card provided by the State, contains relevant toll-free numbers that members may call for assistance, and is written at the sixth-grade level in both English and Spanish. Tr. Vol. lV, p. ISS (testimony of Kim Nettleton). Community Health has five field staff members who conduct outreach to recipients; further, the plan has a full-time staff member who assists members in completing the Medicaid re-certification process. Community Health also operates a toll-free line for the assistance of its members that is separate from the help line operated by Maximus. Tr. Vol. lV, p. 190 (testimony of Kim Nettleton). Community Health allows access to in-network specialists without the need for a referral, maintains a specialist-scheduling office to help set members' appointments with specialists, and attempts to provide transportation reimbursement and taxi vouchers to help members get to appointments. Tr. Vol. V, p. 23-24 (testimony of Kim Nettleton).
Community First Health Plans ("Community First") is an MCO based in San Antonio that serves the Bexar County Service Area (including the eight contiguous counties). Tr. Vol. ll, pp. 4-5 (testimony of Martin Jimenez94). Community First participates in the Texas Medicaid managed care program, in addition to offering commercial managed care. Tr. Vol. ll, p. 5 (testimony of Martin Jimenez). Community First attempts to send a welcome packet and conduct a welcome telephone call to its newly enrolled members. Tr. Vol. ll, pp. 6, 21 (testimony of
93 Kim Nettleton is the Vice-President of Operations for Community Health Choice. Tr. Vol. IV, p. 180 (testimony of Kim Nettleton).
94 Martin Jimenez is the Director of Network Management for Community First. 88

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Martin Jimenez); see also D. Ex. 40. New members of Community First also receive a survey card designed to discover whether the member's immunizations are past due. Tr. Vol. II, pp. 1112 (testimony of Martin Jimenez). Community First operates an information hotline for all members to call with questions about program services separate from the information line that is operated by the State through its contract with Maximus. Tr. Vol. II, p. 22 (testimony of Martin Jimenez). All Community First providers receive a STAR provider manual that describes the necessary components of the Texas Health Steps checkup in detail, and each must agree to provide a Texas Health Steps checkup on all newly enrolled members within 90 days oftheir enrollment, in accordance with Consent Decree~ 192. Tr. Vol. II, pp. 24-25 (testimony of Martin Jimenez). Community First has physicians that practice all27 identified medical specialties. Tr. Vol. II, pp. 29-30 (testimony of Martin Jimenez). A referral is required from the member's PCP if a Community First member who is on Medicaid needs to see a specialist. Tr. Vol. II, p. 30 (testimony of Martin Jimenez).
First Care is an HMO that serves Lubbock County and the eight surrounding counties. Tr. Vol. II, pp. 94-95 (testimony of Paige Alvarado95). When a new member enrolls in First Care, he or she receives a new member packet and a welcome phone call. Tr. Vol. II, p. 106 (testimony of Paige Alvarado). The new member packet contains all of the important phone numbers that a recipient might need to call in order to receive assistance, including the phone number for the assistance line that is operated by Maximus. Tr. Vol. II, p. 108 (testimony of Paige Alvarado). First Care also conducts outreach, which is separate from the outreach that is
95 Paige Alvarado is the Manager of Regional Government program at First Care. Tr. Vol. II, p. 94 (testimony of Paige Alvarado).
89

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conducted by the State through Maximus. Tr. Vol. II, p. 105 (testimony of Paige Alvarado). First Care operates a phone line that is separate from the Texas Health Steps information line that is operated by the State through Maximus, and the phone line receives an average of 3,000 calls per month from members. Tr. Vol. II, p. 122 (testimony of Paige Alvarado). Members of First Care do not need referrals to seek care from a specialist. In the network operated by First Care, there are approximately 250 participating primary care physicians, approximately 450 specialists, and 12 hospitals.96 Tr. Vol. II, p. 98 (testimony of Paige Alvarado). First Care sends "overdue" letters to Medicaid members who are deemed by the State to be due or overdue for a Texas Health Steps examination, and those letters have received a 92 percent response rate. Tr. Vol. II, p. 123 (testimony of Paige Alvarado). Currently, there are over 3,000 First Care Texas Health Steps recipients in case management. Tr. Vol. II, p. 113 (testimony of Paige Alvarado).
Amerigroup is an MCO that serves the Dallas, Houston, Fort Worth, and Austin delivery areas. Tr. Vol. II, p. 201 (testimony of Aron Head97). Amerigroup has Texas Health Steps recipients among its members, and it is the largest of Defendants' STAR MCOs. Tr. Vol. II, p. 153 (testimony of Aron Head); D. Ex. 82 at 4. When a new member of the plaintiff class enrolls with Maximus and selects Amerigroup as his or her managed care organization, the new member receives a welcome phone call and a welcome packet that includes a new member handbook
96 On occasion, a pediatrician or primary care physician may close his practice to all new bptoaastFiiesirn.sttsT,Cri.anrVcelo,ulwd. iIhnTi,gcphM. t1he0de0nic(fatoiedlslotpiwmatsoienanytpsor,ofbcPueatdiiugnreethAoelfsveraerspaiodturota)itn.iogWntshhetehnientfphoreroymvciadltoieosrnemttouhseMtirgapixvaienme3ul0,s-tdohaneyyawamrreiotntetnhlnyotice continuing to see their current members; they are just not accepting new members. !d.
97 Aron Head is the Provider Service Director for Amerigroup in the Dallas/Fort Worth area. Tr. Vol. IT, p. !51 (testimony of Aron Head).
90

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explaining all of the benefits to which he or she is entitled and relevant telephone numbers. Tr. Vol. II, p. 154 (testimony of Aron Head). Arnerigroup aspires to have its doctors perform a Texas Health Steps screening for newly-enrolled class members, regardless of Arnerigroup's determination that the class member is past due. Tr. Vol. II, p. 161 (testimony of Aron Head). Amerigroup also conducts outreach to its members that is separate from the outreach that is conducted by the State through Maximus. Tr. Vol. II, p. 154 (testimony of Aron Head). Arnerigroup sends out periodic fliers, called "Arneritips," to members and providers, which serve to inform members of the importance of obtaining Texas Health Steps checkups, and they include a simplified periodicity schedule. Tr. Vol. II, p. 160 (testimony of Aron Head). Amerigroup sends out a card to each member on his or her birthday specifying which immunizations and checkups are needed. Tr. Vol. II, p. 171 (testimony of Aron Head); see also D. Ex. 63. Amerigroup also operates a medical transportation program, separate from that operated by the Texas Department of Transportation, that aims to transport members to appointments. Tr. Vol. II, p. 164 (testimony of Aron Head). C. MANAGED CARE STATISTICS
As discussed above, the process by which STAR MCOs' representatives operate is only tangentially relevant to the Court's inquiry as to whether significant changed factual circumstances exist warranting revision of the Consent Decree. The Court thus turns to statistics purporting to compare STAR MCOs' performance and Defendants' EPSDT program in place in non-Urban Areas of Texas.
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HEDIS Measures The Health Plan Employer Data and Information Set ("HEDIS") is a standard set of performance measures used to compare managed care organizations nationwide. Tr. Vol. II, p. 42 (testimony of Carol Huber). HEDIS is developed and maintained by the National Committee for Quality Assurance ("NCQA"), a nonprofit organization in Washington, D.C.98 Tr. Vol. II, p. 45 (testimony of Carol Huber). HEDIS data is collected as part of the attempt by the federal government to establish a standardized system of data collection that permits State-to-State comparisons among various aspects of managed care plans. Tr. Vol. IV, p. 76 (testimony of Dr. Moore); see also Tr. Vol. VI, pp. 42-43 (testimony of Dr. Shenkman). HEDIS data, similar to CMS-416 data, accounts for the length of class members' emollment in calculating the statistics. Defendants' Post-Hearing Brief at 19. Rather than accounting for the average period of eligibility, as the CMS-416 does, however, HEDIS statistics generally include only those class members who have been emolled in Medicaid, and in the same Medicaid HMO, for at least 12 months with at most one brief interruption. Tr. Vol. VI, pp. 23-24 (testimony of Dr. Shenkman). This standard automatically excludes a majority of the plaintiff class, as most class members do not satisfy this HEDIS requirement. 99

and

98 The NCQA is compiles them." D.

a commission that "gathers data from Medicaid managed care plans nationally Ex. 82 at 3. The NCQA also establishes HEDIS technical specifications. !d.

nEasoSpMuicxrfTnccee.seAucsdt9eearimR6acnsti.statosMeeitn9odAdi9StcC,fhgBttsitOhasanhet)taihet,senctr'-aam,aCittoun-owoosves-tasheuSxeatnirrctttltaaycehleultlpeleawEdtrhspaoePcaseevcoSyarmeemCDfpremoeaopdeTrmguarasmmejrprbowtialspeiarnutoiirenstcntsnhrysedris.d.oeie,ootldrsFasfHsnutuoctaioaocvrlnfawnthteahMsdqleaescysvuerosmsmedatimthrsliaeoi,ecnpfmbrabydaneaiberd,aesfcieoreetsaredhrddosulieniMzsfofgsoaCernioterbboiHmdtoiesuhliEntticerawtttDayhnmHeihedIdieeaSEinarnasfrDos2sdcamutr0IoicaSrz0amut1eai3nt2sstpeiaittsaocuaigrcnotunteeisadnnsdstoteasni2iocefrrce0evancssc0rautteeaap4thtsistireosaivwosbannefotraedsifyncmsienrlnsrtye.oegoo7tlndonea4ratvt-ehbpsiympinssyeder.egaraeeDsmnDrnstssaoeec.itgtnfeGhEaeettecthnxaudhct.esdriacteeav9tmapulne4arwtnto;eatsodiasn.Dvftesce.re

92

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TheEQRO The Institute for Child Health Policy at the University of Florida serves as Texas' External Quality Review Organization (the "EQRO"). The EQRO prepares multiple reports for Defendants, including a chart book containing STAR Managed Care Organization Quality of Care Measures ("Chart Book") and a report analyzing the quality of the data on which the statistics in the Chart Book are based (entitled "Validating Encounter Data"). 100 D. Ex. 82, 84. Defendants' EQRO uses HEDIS measures to assess STAR MCO Program Quality of Care while also analyzing STAR MCO Program Access to Care in an effort to provide an independent assessment of the performance of Texas' STAR MCO Program. See id. The statistical analysis that follows is based on the reports prepared by the EQRO, as the parties did not offer any other credible statistics on which to base an analysis of STAR MCO program performance relative to Texas Health Steps' non-managed care programs. 1. Data Quality and Accuracy The parties' disagreements with respect to the reliability of HEDIS data analyzed by the EQRO can be distilled into two categories: (I) data parameters and (2) data collection. First, Plaintiffs argue that, because HEDIS medical checkup specifications include both Texas Health Steps checkups and "well child" checkups, the reported statistics regarding checkups are inflated and misrepresent the STAR Program Quality of Care. In other words, argue Plaintiffs, the HEDIS/EQRO data parameters are inconsistent with Texas Health Steps requirements and, such
100 The EQRO's most recent Chart Book, D. Ex. 82, compiles data from December I, 2003, to November 30, 2004.
93

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being the case, they exceed the data parameters that the parties and the Court should employ to accurately assess the success of STAR MCOs. Second, Plaintiffs argue that the data Defendants provide to the EQRO is incomplete and inaccurate. Defendants assert that the data is reliable and that the Court should assess STAR MCO performance using HEDIS data specifications. The Court now addresses these arguments relating to data quality and collection for purposes of Defendants' Rule 60(b) Motion.
Data Parameters Because HEDIS is used to assess commercial managed care as well as publicly financed managed care, its measures do not always coincide with Texas Health Steps standards. For example, the EQRO includes "well child" visits in its HEDIS analysis. In 2000, the Court found that Defendants' data is inflated because it includes "well child" visits that are not as comprehensive as Texas Health Steps medical checkups; the so-called "well child" visit is considerably less comprehensive than the Texas Health Steps checkup and "do[es] not substitute for the full checkup[] required by federal law, by decree paragraphs 190 and 192, and by defendants' own policies." Frew, 109 F. Supp. 2d at 620-21, 623. Similarly, the statistics that Defendants present in support of their Rule 60(b) Motion include "well child" visits in addition to Texas Health Steps medical checkups, thus inflating the reported number of class members receiving the comprehensive checkups to which they are entitled. See Tr. Vol. VI, p. 46-47 (testimony of Dr. Shenkman). The Court finds that the HEDIS/EQRO statistics regarding "well child" checkups are inflated with respect to the number of comprehensive checkups class members receive, and the EQRO's conclusions are unreliable to assess provision of Texas Health
94

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Steps checkups. 101 However, the statistics are somewhat useful to compare relative numbers of "well child" checkups between STAR MCOs and non-managed care Medicaid within Texas. The Court will thus analyze the HEDIS/EQRO statistics in an attempt to assess relative performance of the two health care delivery models for purposes of Defendants' Rule 60(b)

Motion.

Data Collection

The EQRO's report analyzing the quality ofthe data on which the statistics in the EQRO's Chart Book are based compares the information contained in HMOs' administrative data to that contained in medical records. D. Ex. 84. "The primary purpose of this study was to validate the data contained in the encounter data detail against the care and services documented
in the enrollees' medical records." !d. at 1. While the EQRO commended all of the STAR
MCOs for increased provider response to record requests from 2002 (65%) to 2003 (84.1 %), the EQRO received a response from only approximately 60% of the enrollees who were requested to respond. !d. at I, 12. Plaintiffs argue that the study is thus inherently flawed because the EQRO could not review approximately 40% ofthe medical charts they requested from STAR MCOs
Elizabeth Shenkman, Ph.D., director of the EQRO, posits that Defendants' managed care data are accurate. D. Ex. 87. Because the EQRO commended the STAR MCOs for their provider response, without mention of the 60% enrollee response rate, and made no negative

101 The Court is particularly disturbed that the last time Defendants requested the EQRO to study tcTpdhhpehee.teeci3rskEm5suQu-ip3enR6eaoOm(wftehochshanetsegitmchnakeoolurltnpSoyreTfcopotAhefmaeRDtpmerMl.deatSCntehhnaOeegenssepksdcrm,iuocfraoarrnrerEe)nS.QtmFlTyRYehdOpei2r'csos0eav0slif1tdriu,needcdthycoineoragdmEbssopQbtulhReotatlOmetstiTeedtderirdixetchvaaneisloeHCctwhfoeeieadnucld.rktthu'aPspS.sftiEicennoxpgdm.slienMpcghclAeoetthcmNekan-ptueElp"se-wss1te.0sei,mlTnlArcec.edphVpii2cl.o0adlD0l".1.VtIo, checkup statistics are inflated.
95

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findings regarding either provider or enrollee response rate, the Court accepts Defendants' and Dr. Shenkman's assessment that the data used to calculate statistics contained in the Chart Book is reasonably accurate.
2. EQRO Findings The Court first notes that Defendants failed to offer evidence directly comparing Urban Areas of Texas to non-Urban Areas. Similarly, Defendants failed to offer evidence directly comparing Urban Areas of Texas to the overall performance of Texas Health Steps. Instead, Defendants' offered the EQRO Chart Book as evidence of significant changed circumstances, which contains, inter alia, statistics for: each individual STAR MCO; the average of all STAR MCOs for each measurement ("All STAR MCOs"); the national average ofother States' MCOs (the "HEDIS Mean"); primary care case management for Texas' Temporary Aid To Needy Families program ("PCCM-TANF"); and fee-for-service for Texas' Temporary Aid To Needy Families program ("FFS-TANF"). Comparison of All STAR MCOs to other States' MCOs (the HEDIS Mean) is irrelevant for purposes of Defendants' Rule 60(b) Motion. 102 Additionally, PCCM-TANF statistics do not necessarily reflect the performance of Texas Health Network, Defendants' only PCCM program. As there is no evidence directly permitting either of the relevant comparisons, Defendants have failed to satisfy their burden to prove significant changed factual circumstances warranting modification of the Consent Decree, unless the Court determines that any of the statistics in the EQRO's Chart Book may otherwise aid in the Court's inquiry as to whether significant changed factual circumstances exist with respect to Defendants' managed care program.
102 See discussion supra pp. 79-80. 96

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The Court finds the FFS-TANF statistic to be the most relevant comparison for purposes of Defendants' Rule 60(b) motion, though it is not necessarily representative of traditional feefor-service Medicaid in the non-Urban Areas ofTexas. 103 While it represents statistics for Texas' Temporary Aid to Needy Families program, not Defendants' non-managed care EPSDT program, the Court finds that it is the statistic most representative of a direct comparison between the Urban and non-Urban Areas of Texas. The Court thus accepts the EQRO's determination that TANF and TANF-related recipients "are the most comparable to those served under the STAR MCO Program." D. Ex. 82 at 3. Recognizing that FFS-TANF statistics may not directly reflect the performance offee-for-service Medicaid in non-Urban Areas of Texas, the Court, nevertheless, proceeds with its analysis to determine whether a comparison of All STAR MCOs to FFS-TANF statistics, imperfect as it is, supports Defendants' assertion of significant changed factual circumstances warranting modification ofthe Consent Decree. Rufo, 502 U.S. at 392.
While the Court relies primarily on STAR MCO averages and FFS-TANF statistics in its analysis, it is additionally noted that the average for STAR MCOs is not necessarily indicative of STAR MCOs' performance in each city in Texas. Indeed, as discussed below, statistics for individual STAR MCOs occasionally vary widely.
103 SeeP. Ex. 7, 8 (explaining traditional, fee-for-service Medicaid and Medicaid managed care). 97

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a. Quality of Care The EQRO uses multiple HEDIS statistics to measure the overall STAR MCO Program Quality ofCare.104 See D. Ex. 82 at Chart 7-19. The Court details the EQRO's findings, comparing All STAR MCOs to FFS-TANF, below. Even when combining less comprehensive "well child" checkups with Texas Health Steps checkups, fewer STAR MCO members receive the required six checkups in the first 15 months of life. D. Ex. 82 at 12. Only 40.86% of STAR MCOs' enrollees received six or more "well-child" checkups, as compared to 47.17% ofFFS-TANF enrollees. !d. STAR MCOs varied from 20.25% (Texas Children's) to 52.21% (First Care) for this statistic, thus revealing a significant disparity among STAR MCOs. !d. STAR MCO members also received fewer "well-
child" checkups in the 3'd, 4'h, 5'\ and 6'h years oflife than did FFS-TANF recipients.
Approximately 64% of children in this age group enrolled in STAR MCOs received "well-child" visits, whereas approximately 69% of children in this age group under FFS-TANF received them. D. Ex. 82 at 14. The variance among STAR MCOs was only slight with respect to this statistic, with Community First performing most poorly at 59.32% and El Paso First providing the most "well child" checkups at 69.66%. !d.
104 Specifically, with respect to STAR MCO Program Quality of Care, the EQRO compiles statistics for: "HEDIS Well-Child Visits in the First 15 Months of Life;" "HEDIS Well-Child Visits in
t"hHeE3D''I'S4thP'o5sthtp' aarntdum6'hCYaerea;r"s "oHfELDifeIS"' "B"HreEasDtICSaAncdeorleSsccreenetnWinge;l"l-C"HarEeDVISisiCtse'·r"v"icHaEl DCIaSncPerreSncartaelenCianrge;'·""
"HEDIS Use of Appropriate Medications for People with Asthma;" "HEDIS Follow-Up After Hospitalization for Mental Illness;" "Readmission Within 30 Days After Inpatient Stay for Mental Health;" "HEDIS Comprehensive Diabetes Care;" and "HEDIS Appropriate Testing for Children with Pharyngitis." D. Ex. 82 at Chart 7-19.
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The disparity between STAR MCOs and FFS-TANF recipients was more marked when analyzing adolescent "well-child" visits. Approximately 43% of adolescents in STAR MCOs received "well-child" visits, as compared to approximately 51% ofFFS-TANF recipients. D. Ex. 82 at 15. The variability among STAR MCOs was pronounced in this statistic as well, the results varying from 39.06% (Superior) to 54.08% (First Care). !d.
FFS-TANF recipients also fared better with respect to continuity of care and providing follow-up care in the community after inpatient stays for mental illness. 105 While only 34.51% of STAR MCO members received 7-day follow-up after hospitalization for mental illness, and only 62.80% received 30-day follow-up, 42.88% ofFFS-TANF recipients received 7-day follow-up and 68.6% received 30-day follow-up. 106 D. Ex. 82 at 24. Other statistics in which FFS-TANF recipients received higher quality of care than STAR MCO members include breast cancer screening, cervical cancer screening, and appropriate testing for children with Pharyngitis. !d.
Still, FFS-TANF recipients receive inferior quality of care as compared to STAR MCO members with respect to prenatal care and postpartum care. D. Ex. 82 at 16-17. While STAR MCOs provided first trimester prenatal care to 84.48% of enrollees, only 61.98% ofFFS-TANF recipients received first trimester prenatal care. !d. at 16. Whereas STAR MCOs' performance
105 In response to STAR MCOs' poor results in this statistic, the EQRO reconunended that Defendants evaluate barriers that inhibit use of mental health care in Defendants' managed care companies. Tr. VoL VL p. 43 (testimony of Dr. Shenkman).
106 The Court, however, notes that STAR MCOs have made significant improvement in the area of follow-up after hospitalization for mental illness. STAR MCOs improved from 16.16% to 34.51% and from 31.25% to 62.8% for 7-day and 30-day follow-up, respectively, over the course of two years. !d. at 24. But, STAR MCOs' current performance remains inferior to that provided for FFS-TANF recipients, thus failing to support a finding of significant changed circumstances warranting revision of the Consent Decree or otherwise finding that STAR MCOs' performance is superior to non-managed care Medicaid in Texas.
99

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on this HEDIS measure varied significantly, all STAR MCOs exceeded that ofFFS-TANF. Id. Additionally, STAR MCOs provided postpartum care services to 53.93% of its enrollees, while only 49.67% ofFFS-TANF recipients received postpartum care services. Id. at 17. The variance among STAR MCOs for this measure is somewhat alarming, as STAR MCO postpartum care provision varies from 41.72% (Parkland) to 57.08% (El Paso First). Id.
b. Access to Care To determine relative performance of different health care delivery plans with respect to access to care, as opposed to quality of care, the EQRO compiles four statistics relating to "ambulatory care sensitive conditions" ("ACSCs"). 107 As stated in the EQRO's Chart Book, "ACSCs are those conditions ... that should not result in an inpatient stay or an emergency room visit, if there is good access to care in the outpatient setting. Preventable hospitalizations and emergency room visits are costly and do not reflect good quality of or access to care for enrollees." D. Ex. 82 at 8. High numbers of ACSCs "could be an indicator that there's poor access to care. That's predominantly why we use this indicator as a measure of access to care." Tr. Vol. VI, p. 9 (testimony of Dr. Shenkman). ACSC is a nationally recognized measure recommended by the Institute ofMedicine. 108 Tr. Vol. V, pp. 223-24 (testimony of Dr. Shenkman). As Defendants assert that one of their main purposes for employing the managed
107 Specifically, the EQRO compiles charts comparing the following measures: "Percent of Enrollees with One or More Hospital Stays Due to an Ambulatory Care Sensitive Condition;" Percent of Hospitalizations with a Primary Diagnosis of an Ambulatory Care Sensitive Condition;" Percent of Enrollees with One or More Emergency Department Visits Due to an Ambulatory Care Sensitive Condition;" and "Percent of Emergency Department Visits with a Primary Diagnosis of an Ambulatory Care Sensitive Condition." D. Ex. 82.
108 The Court notes that ACSC is not a HEDIS statistic; thus, "national comparison data are not available for this measure." D. Ex. 82 at 8.
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care model across the State is to save money by keeping class members out of the emergency room when care can be provided elsewhere, Tr. Vol. VI, pp. 37-38 (testimony of Dr. Shenkman), an analysis of emergency department visits and hospitalizations for ACSCs is particularly relevant to determine the degree to which STAR MCOs have experienced success.
First, each of Defendants' STAR MCOs had fewer than one percent of enrollees with one or more hospital stays due to an ACSC. D. Ex. 82 at 6. The average for All STAR MCOs was .66%; the EQRO Chart Book does not provide a relative comparison to other health care delivery models. Id. As Dr. Shenkman testified, however, when only one percent of enrollees in managed care is experiencing an inpatient stay due to an ambulatory care sensitive condition, this leads to the conclusion that access to care in an outpatient setting is very good. Tr. Vol. VI, p. 9 (testimony of Dr. Shenkman). Plaintiffs do not rebut this statement; thus, the Court accepts Defendants' assertion. However, the inquiry at hand is not whether access to STAR MCO primary care is acceptable; instead, the inquiry is whether access to care for STAR MCO members is superior to non-managed care recipients, thus constituting significant changed circumstances warranting modification of the Consent Decree. Furthermore, Defendants do not provide a similar statistic for past years for purposes of arguing significant changed circumstances. Hence, the Court turns to a comparison of STAR MCO and FFS-TANF ACSC statistics to assess relative performance.
STAR MCOs have a smaller percentage of hospitalizations with a primary diagnosis of an ACSC than FFS-TANF (6.94% as compared to 9.51%, respectively). Tr. Vol. VI, p. 11 (testimony of Dr. Shenkman); see D. Ex. 82, pp. 6-7. The variability among STAR MCOs is also relatively minor-STAR MCOs vary from 6.29% (Amerigroup) to 9.58% (First Care), excluding
101

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Texas Children's, which was an outlier with 15.11% of hospitalizations with a primary diagnosis of ACSC. Id. at 7. When comparing percentages of emergency department visits with a primary diagnosis of an ACSC, as opposed to hospitalizations, though, STAR MCOs perform less well than FFS-TANF. 109 While 36.41% of STAR MCOs' emergency department visits had a primary diagnosis of an ACSC, only 30.57% ofFFS-TANF members' emergency department visits were for an ACSC. Id. at 10. E. CONCLUSIONS OF LAW: URBAN AREAS OF TEXAS
The Court, in its 2000 Opinion, found that class members enrolled in managed care received fewer checkups than those enrolled in traditional fee-for-service plans. Frew, 109 F. Supp. 2d at 622. Defendants claimed that their managed care programs improve health care for class members through the application of the "medical home" model, while Plaintiffs responded that these concepts fail plaintiffs in their applications and prevent timely receipt of EPSDT services by class members enrolled in managed care plans. See id. Based on the evidence presented at the June Hearing, the Court finds that Defendants have failed to establish factual circumstances significantly different from those found in 2000 with respect to the provision of EPSDT services by STAR MCOs.
109 Defendants argue that this statistic is not indicative of STAR MCO members' access to care, because relatively small numbers ofMCO members visit the hospital multiple times for ACSCs, thus inflating the statistic. See Tr. Vol. VI, p. 13 (testimony of Dr. Shenkman). Indeed, "on average each enrollee who experienced and [sic] ACSC [emergency department] visit had 1.42 [emergency department] visits during the measurement year." D. Ex. 82 at 10. While Defendants' assertion is supported by the evidence, members' multiple emergency department visits for ACSCs is not unique to STAR MCOs; thus, a relative comparison of STAR MCOs to FFS-TANF is unaffected by this phenomenon.
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First, Defendants failed to present evidence directly comparing Urban Areas of Texas to non-Urban Areas, so as to distinguish superior performance of STAR MCOs. They also failed to present evidence relating to relative performance of STAR MCOs and Texas Health Steps as a whole. Defendants failed to present any evidence that establishes the superior performance of STAR MCOs and, consequently, failed to establish significant changed factual circumstances warranting revision of the Consent Decree. See Rufo, 502 U.S. at 392.
Defendants, in their presentation of evidence at the June Hearing, relied chiefly on those in charge of the STAR MCOs to prove their superior performance. The Court does not accept the subjective opinion of those in charge of STAR MCOs to objectively evaluate their performance. While testimony of representatives of STAR MCOs is informative and explicates how the MCOs intend to function, it does not prove significant changed factual circumstances in Defendants' provision of EPSDT services.
The objective evidence on which Defendants chiefly rely, the EQRO's most recent Chart Book, also supports the Court's finding that no changed factual circumstances warranting modification of the Consent Decree exist. While Defendants insist that STAR MCOs' performance relative to other States' MCOs establishes compliance with federal law, the Court finds these comparisons irrelevant and rejects Defendants' legal argument that compliance with federal law warrants Rule 60(b) relief. See discussion supra Part I(B)(3)(c). Furthermore, the EQRO Chart Book evidences STAR MCOs' inferior performance relative to FFS-TANF recipients. Specifically, STAR MCOs performed less well than FFS-TANF with respect to "well child" checkups in the first 15 months oflife, "well child" checkups in the 3'd, 4'h, 5'h, and 6'h years of!ife, adolescent "well child" visits, both 7- and 30-day follow-up care for mental illness,
103

Case 3:93-cv-00065-RAS Document 566 Filed 08/22/05 Page 104 of 112 PageID #: 12173 breast cancer screening, cervical cancer screening and appropriate testing for children with Pharyngitis. See D. Ex. 82. As the Court finds that FFS-TANF is the statistic most relevant to the instant inquiry, and the comparison fails to evidence superior performance of Defendants' STAR MCOs, Defendants have failed to present any evidence that proves significant changed circumstances warranting revision of the Consent Decree with respect to the Urban Areas of Texas.
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PART FOUR: RUFO TAILORING REQUIREMENT "Once a court has determined that changed circumstances warrant a modification in a consent decree, the focus should be on whether the proposed modification is tailored to resolve the problems created by the change in circumstances." Rufo, 502 U.S. at 391. Rufo's second prong, then, places an additional burden on the moving party to show that, in addition to changed factual circumstances warranting modification of the consent decree, the proposed relief is suitably tailored to those changed circumstances. In the instant motion, Defendants demand only two alternative forms of relief, both of which are similarly cataclysmic with respect to the Texas Health Steps program.U0 To determine whether either of these extreme forms of relief is suitably tailored to the found facts, or even the alleged facts, the Court looks to the direction provided by the Supreme Court in Frew. 540 U.S. at 441. As explained in Part I(B)(2), the Supreme Court cited two cases as examples of Rule 60(b) application to consent decrees involving institutional reform. Id. In both cases, the defendants' motions to vacate or dissolve the consent decree in issue were denied as not being suitably tailored to the changed circumstances. After the Supreme Court's Rufo decision, as stated previously, the case was remanded to the United States District Court for the District of Massachusetts, for reconsideration under the appropriate, flexible standard. 502 U.S. at 393. On remand, the defendants argued, inter alia, that the significant change in factual circumstances, an upsurge in the population ofpretrial
110 While Defendants' alternative demand for relief applies only to those areas covered by managed care, the ramifications of the demanded relief would be ubiquitous. Because a majority of Texas' EPSDT beneficiaries is located within the Urban Areas, the Court's granting of the alternatively demanded relief would effectively dissolve the Consent Decree for at least 57% of Texas Health Steps eligibles. D. Ex. 96. The Court notes the effect of the demanded relief to illustrate that Defendants' alternative forms of relief are essentially equally radical, and cannot be said to request minor changes in extraneous details. See Rufo, 502 U.S. at 383, n.7.
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detainees, warranted dissolution ofthe consent decree. Inmates ofSuffolk County Jail v. Rufo, 148 F.R.D. 14, 23 (D. Mass. 1993). So as to avoid the court's being unduly involved in the dayto-day implementation of the consent decree in response to the unanticipated increase in inmate population, the defendants argued, the court should "simply let the Sheriff have unfettered discretion to order double-bunking without any constraints or limitations as to criteria regarding associated conditions of confinement." !d. The district court found, in the process of denying the defendants' motion to vacate the consent decree, that this "hard-line approach is plainly incompatible with [the district court's] obligation, under the order of remand, to consider whether any proposed modification of the consent decree is suitably tailored to the changed circumstances." !d.
In Shapp, the defendants moved to vacate or modify the consent decree as a result of their inability to comply, after a good faith effort, with certain terms of the consent decree. 602 F.2d at 1120-21. Instead of vacating the consent decree in its entirety, the district court merely modified three provisions of the decree that were no longer realistically achievable. !d. at 1120. The Third Circuit praised the improvement in Peunsylvania's EPSDT program while recognizing that, after the modification of the consent decree in only three respects, "the decree continues in force most of the provisions ... which have produced one of the most successful EPSDT programs in the country." 602 F.2d at 1120. Although the Shapp Court found that Pennsylvania's EPSDT program had made vast improvements and was one of the best in the nation,111 the decree was not dissolved; instead, only the few unattainable provisions were modified.
111 The Shapp Court reiterated that the evidence showed that "Pennsylvania performed the highest number of screens in absolute terms of any state in the nation, and ranked eighth in terms of the percentage of eligible persons screened .... [T]he Pennsylvania EPSDT program was among the 5 or 6 best programs in the country." 602 F.2d at 1118.
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In the instant case, the Court finds that significant changed factual circumstances do not exist with respect to the most reliable indicators of the overall performance of Texas Health Steps. See supra Part II. As these indicators of Texas Health Steps' overall performance, such as medical checkups and provision of dental services, have experienced no significant changed factual circumstances, any remedy that would dissolve the Consent Decree in its entirety is grossly ill-tailored to the facts as found by the Court.
Defendants have also attempted to prove that Texas Health Steps is exemplary relative to other States, and/or in compliance with federal law, as support for dissolution of the Consent Decree in its entirety. Even assuming, arguendo, that Defendants proved that Texas Health Steps is exemplary relative to other States' EPSDT programs, Shapp demonstrates that dissolution of a consent decree is not necessarily a suitably tailored remedy, even for a State with one of the best EPSDT programs in the country. The district court's austere rejection of the defendants' motion to vacate the consent decree in Rufo also illustrates the radical nature of a court's dissolving a consent decree in its entirety, and it reiterates the Supreme Court's directive that "a consent decree is a final judgment that may be reopened only to the extent that equity requires." Rufo, 502 U.S. at 391.
With respect to the Urban Areas of Texas, Defendants have failed to prove that STAR MCOs achieve better results that traditional fee-for-service Medicaid. Instead, the evidence reveals that STAR MCOs are performing slightly worse that traditional fee-for-service Medicaid, thus failing to prove significant changed factual circumstances warranting modification of the Consent Decree. Furthermore, dissolution as to all Urban Areas would be highly ill-tailored to changed circumstances based on average STAR MCO performance. As detailed in Part
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II(C)(2)(a) and (b), performance of each individual STAR MCO varies from statistic to statistic, and there is often a wide variation among Defendants' MCOs for a single statistic. Defendants seemingly recognize the disparity among STAR MCOs, as their evidence at the June Hearing focused on STAR MCOs other than Superior, the second largest STAR MCO and one of the overall worst performing. See D. Ex. 82. Any remedy that does not take into account the particular circumstances of each individual MCO in modifying specific provisions of the Consent Decree would fail to be tailored to changed factual circumstances.
Finally, the Supreme Court's admonishment in Frew that, when a consent decree mandates a state to administer a federal program, "principles of federalism require that state officials with front-line responsibility for administering the program be given latitude and substantial discretion," 540 U.S. at 442, fails to provide solace for Defendants. As the Court has emphasized throughout this opinion, between (a) the bounds of the extensively-negotiated Consent Decree provisions and (b) any changed circumstances, Defendants have latitude and substantial discretion to administer Texas' EPSDT program. Unless Defendants can satisfy the appropriate Rule 60(b) standard, however, the Consent Decree remains enforceable, and "enforcing the decree [continues to] vindicate[] an agreement that the state officials reached to comply with federal law." Frew, 540 U.S. at 439.
Accordingly, the Court finds that Defendants have failed to satisfy Rufo's tailoring requirement with respect to both forms of demanded relief.
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PART FIVE: DEFENDANTS' ATTEMPTS AT COMPLIANCE In addition to Rufo's requirements that a party seeking modification of a consent decree establish a significant change in facts or law warranting revision of a consent decree and that the proposed modification be suitably tailored to the changed circumstances, Cooper requires the party to show further that the changed factual circumstances affect compliance with, or the workability or enforcement of, the final judgment, and that they occurred despite the officials' reasonable efforts to comply with the judgment. Cooper, 33 F.3d at 544; Rufo, 502 U.S. at 392. Defendants have failed to meet their burdens under Cooper. Defendants offered no evidence that the alleged changed factual circumstances affect compliance with, or the workability or enforcement of, the Consent Decree. Indeed, Defendants rarely referred to Consent Decree provisions at the June Hearing, with the exception of~~ 171 and 284, and, instead, focused on attempting to prove compliance with federal law. See discussion supra Part II(A)(3) (addressing Defendants' arguments with respect to Consent Decree ~~ 171 and 284). Defendants' evidence reveals that, rather than proving changed circumstances satisfYing this portion of the Cooper standard, Defendants simply intended to relitigate the Consent Decree's underlying claims. While the Court understands Defendants' preference not to be obligated to comply with the Consent Decree's plan for implementing the federal EPSDT statute, the Court finds that Defendants' evidence is insufficient satisfy this Cooper requirement. 112
112 This finding is not necessarily independent of the Court's finding that the first Rufo requirement, significant changed factual circumstances warranting modification of a consent decree, is not satisfied. See infra Part IT and III. Cooper's requirement that a party show that the changed factual circumstances affect compliance with, or the workability or enforcement of, the final judgment, can be interpreted as merely a restatement of Rufo's requirement that a party show significant changed
109

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The Court further finds that Defendants have not made reasonable efforts to comply with the judgment. Cf Cooper, 33 F.3d at 543-44 (upholding the magistrate judge's finding that "the county officials had ceased making any attempt to abide by the conditions set out in the Final Judgment.") While the violations found in 2000 do not necessarily evidence a lack of Defendants' reasonable efforts to comply with the Consent Decree, Defendants have failed, and continue to fail, even to attempt compliance with certain provisions. Consent Decree~~ 17, 35, 37, 171 and 223 are the subject of Plaintiffs' pending Motion for Sanctions. Docket No. 429. Defendants have unilaterally determined that these provisions are either harmful or no longer desirable and have ceased complying with them without first requesting relief from the Court. 113 For example, Defendants discontinued complying with Consent Decree~ 17, which requires
Defendants to send letters to recipients periodically due for medical and/or dental checkups, and
Consent Decree ~~ 35 and 37, which require oral outreach units to contact all recipients who miss a medical or dental checkup "in the face of numerous complaints from recipients." 114
circumstances warranting modification ofa consent decree. See Cooper, 33 F.3d at 544; Rufo, 502 U.S. 392. The Court addresses Cooper's iteration of the Rule 60(b) standard separately, however, in the spirit of full analysis of Defendants' claims under the applicable Fifth Circuit standard.
113 The flexible standard for modification of consent decrees allows Defendants to prove less than would be required under a strict reading of Rule 60(b). For example, when a party seeks modification of a consent decree provision on the ground that the provision is unworkable because of unforeseen obstacles and cannot be reasonably satisfied, Rufo, 502 U.S. at 384, it is not necessary that the court have before it evidence of the precise circumstances that existed when the parties agreed to the provision. It is enough that when they agreed to the provision in question, the parties believed it would be possible to comply, but good faith effort and experience has proven that it is not. In other words, the fact that a provision of a consent decree has proven to be unworkable is itself a significant change in circumstances. See, e.g., Reynolds v. Mcinnes, 338 F.3d 1221, 1228-29 (11th Cir. 2003). But, in the instant case, Defendants presented no evidence of even a minor attempt at compliance the above-listed provisions of the Consent Decree and have thus failed to prove that any provision is unworkable. Cf id. at 1229.
114 Plaintiffs also assert that Defendants' justification for discontinuing the letters appears to be pre-textual. For example, argue Plaintiffs, although Defendants claim to have received about 200 complaints, they only produced evidence of 110 complaints during discovery. P. Ex. 0-13 (filed under seal); Defendants' Post-Hearing Brief at 16-17. When the complaints are broken down by topic, only 17
110

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Defendants' Rule 60(b) Motion at 21. Complaints from class members is not a judicially
cognizable justification for unilaterally determining that compliance with a Consent Decree
provision is no longer necessary. Defendants must request relief from the Court, in order to alter
or amend the obligations contained in the judicially-enforceable Consent Decree.
With respect to Consent Decree~~ 171 and 223, requiring annual reports about class
members' receipt of dental checkups and assessments of Defendants' Medical Transportation
Program ("MTP"), Defendants have unilaterally determined that bi-annual reporting is more desirable. Furthermore, despite the Court's 2000 finding that Consent Decree~ 284 requires
additional information beyond that reported on the CMS-416, see Frew, 109 F. Supp. 2d at 612,
Defendants continue to fail to comply with this provision of the Consent Decree. See discussion
supra Part II(A)(3). In sum, Defendants have violated, and continue to violate, multiple Consent
Decree provisions, without regard for the obligations contained therein, and the Court finds that
they have not exerted reasonable efforts to comply with all, or substantially all, of the
judgment. 115 See Cooper, 33 F.3d at 544.
of them reported discomfort with the letters' language. The remaining 93 asked to have the letters stopped for other reasons, such as: the child had died (9); the child was adopted and lives elsewhere (3); the child does not have Medicaid (3); the child was not at that address or had moved (12); etc. P. Ex. 013 at 1; Plaintiffs' Post-Hearing Brief at 14.
115 Additionally, Defendants were found to be in violation of multiple provisions of the Consent Decree in 2000. See Frew, 109 F. Supp. 2d at 579. Therefore, Defendants could not even theoretically have been in compliance with the Consent Decree for more than five years (which, of course, the Court does not find). The Court, consistent with the Alexander Court's analysis, finds that such a short period of compliance would, nevertheless, be insufficient to warrant relief under Rule 60(b). See 89 F.3d at 20 I; see Harris, 215 F.3d at 36 ("While we agree that good faith compliance certainly matters, extended compliance alone does not compel the modification of a consent decree ...."). Plaintiffs argue that Defendants continue to violate provisions of the Consent Decree not necessarily addressed by the Court's 2000 Opinion. See Plaintiffs' Post-Hearing Brief at I0-11. While the Court does not determine whether Plaintiffs' assertions are meritorious, it is sufficient, for purposes of Defendants' Rule 60(b) motion, to find that Defendants made no reasonable attempt to comply with the Consent Decree.
Ill

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Defendants seemingly fail to recognize that "Rule 60(b)(5) provides that a party may obtain relief from a court order when 'it is no longer equitable that the judgment should have prospective application,' not when it is no longer convenient to live with the terms of a consent decree." Rufo, 502 U.S. at 383. As the Court finds that Defendants have failed to satisfy the applicable Rule 60(b) standard, it is equitable that the Consent Decree should have prospective application.
Conclusion To recapitulate, the Court finds that Defendants have failed to prove significant changed factual circumstances warranting revision ofthe Consent Decree with respect to Texas Health Steps as a whole or with respect to the Urban Areas of Texas; that Defendants have failed to prove that either form of demanded relief is suitably tailored to any changed circumstances; that Defendants have failed to show that the changed factual circumstances affect compliance with, or the workability or enforcement of, the final judgment; that Defendants have failed to prove that any changes occurred despite Defendants' reasonable efforts to comply with the judgment; and that the evidence adduced at the June Hearing does not compel the Court to sua sponte modify any provision of the Consent Decree. Accordingly, Defendants' Rule 60(b) Motion shall be, and is hereby, DENIED.

-/!If..{ SIGNED this

day of August, 2005.

112

 
 Case 3:93-cv-00065-RAS Document 657-2 Filed 08/10/07 Page 1 of 58 PageID #: 17341

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
PARIS DIVISION

LINDA FREW, et al. Plaintiffs,
v.
ALBERT HAWKINS, et al. Defendants.

* * * * * CIVIL ACTION NO. 3:93CV65 * SENIOR JUDGE WILLIAM * WAYNE JUSTICE * * *

JOINT MEMORANDUM OPINION; FINDINGS OF FACT AND CONCLUSIONS OF LAW

On July 9, 2007, the Court orally granted the parties’ joint motion for entry of an

agreed Corrective Action Order, and found that the parties’ proposed Corrective Action Order is fair, reasonable and adequate. Ayers v Thompson, 358 F.3d 356, 368 (5th Cir),

cert. denied, 543 U.S. 951 (2004); F.R.Civ.P. 23(e)(1)(C); see also, David Herr, MANUAL

FOR COMPLEX LITIGATION, FOURTH, §21.61 (2006). The parties were then asked to

submit proposed orders. The Court, having received the parties’ proposed findings of

fact and conclusions of law, hereby enters this Agreed Corrective Action Order (Order).

DOCKET NO. 637, Exs. 1-11. If implemented properly, Texas’ children and youth who qualify for Medicaid should be in far better health than they have been in the past.1

BRIEF PROCEDURAL HISTORY

The Court’s previous published decisions outline the procedural history of this

case. Frew v Gilbert, 109 F.Supp.2d 579, 588-89 (E.D.Tex. 2000)(Frew 2000) and Frew

1 One purpose of the Corrective Action Order is to bring Defendants into compliance with the Consent Decree [Docket No. 135] (“Decree”), which remains in effect. The Court hopes and expects that by complying with the Order, Defendants will also comply with the Decree. If they do so for a sufficient period of time, this case can end.

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v Hawkins, 401 F.Supp.2d 619, 623-25 (E.D.Tex. 2005)(Frew 2005)(subsequent histories omitted). This brief procedural history simply provides an update of events relevant to the Court’s approval of the Corrective Action Order.
Defendants unsuccessfully appealed this Court's denial of their motion to dissolve the Decree in Frew 2005. Frazar v Ladd, 457 F.3d 432 (5th Cir. 2006), cert. denied, 127 S.Ct. 1039 (2007). Shortly after the case returned to this Court, Plaintiffs again moved the Court to enter remedial Orders; they also proposed amended Corrective Action Orders. DOCKET NOS. 607; 609.2 Further, Plaintiffs urged the Court to rule on two pending motions: 1) Plaintiffs’ Motion for Sanctions, and 2) Plaintiffs’ Motion to Extend the Terms of Decree Paragraphs 284 and 295; DOCKET NOS. 428; 429; See also, DOCKET NO. 599.3 The Court permitted discovery and set Plaintiffs’ three motions for hearing on April 9, 2007. DOCKET NO. 601.
Counsel for the parties attended a pre-hearing status conference in Chambers on March 30, 2007. They announced that settlement was possible but not yet achieved. Then, at the April 9, 2007 hearing, counsel announced that the parties had reached a settlement in principle. The Court directed the parties to file a finalized version of a new proposed settlement by April 27, 2007.
On April 16, 2007, the Court ordered notice of the proposed settlement to the class. DOCKET NO. 635. The parties filed their final agreed, proposed Corrective Action Order on April 27, 2007. DOCKET NO. 637. Defendants notified the Court on June 8,
2 Their January, 2007 Motion for Corrective Action Orders updated allegations of decree violations made as early as 1998. DOCKET NO. 208. 3 The Corrective Action Order resolves all of Plaintiffs’ Motions, as agreed by the parties. DOCKET NO. 634 at .2.
2

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2007, that they had provided notice to the class, as required by the Court’s Order. DOCKET NO. 641.
On July 9, 2007, this Court held a fairness hearing to determine whether to adopt the parties’ proposals as the Court’s Corrective Action Order. The Court heard oral testimony from Plaintiffs’ witnesses; Nicole Carroll, Frank Moore, PhD, and Nancy Sue (Suzi) Seale, DDS, MSD, and Defendants’ witnesses Defendant Health and Human Services Commission ("HHSC") Executive Commissioner Albert Hawkins and HHSC Medicaid/CHIP Medical Director, John Hellerstedt, MD. The Court also admitted into evidence Plaintiffs’ modified depositions on written questions from Anne Dunkelberg, Gary Clark, MD and Jane Rider, MD, as well as from Plaintiff Maria Ayala, former Plaintiff Mary Fisher, and parent/guardians G.B., K.C.-D., J.D., J.P. and K.S. Further, the Court admitted into evidence Plaintiffs’ 366 exhibits and Defendants’ 38 exhibits.
Counsel for both parties urged the Court to adopt the Corrective Action Order. TR 8:17-19 (2007); TR10:9-12; TR 11:19-20 (2007).
The parties asked the Court for a ruling at the end of evidence on July 9, 2007. From the bench, the Court granted the parties’ joint motion for entry of an agreed Corrective Action Order and stated that the proposed Corrective Action Order was fair, reasonable and adequate. TR 181 (2007). The Court also ordered the parties to submit proposed orders. See ¶ 21, 2003 Notes of the Advisory Committee re Amendments to F.R.Civ.P. 23 (e)(1)(C) (hereinafter “COMMENTS”). TR 182 (2007).
LEGAL STANDARDS FOR APPROVAL OF A SETTLEMENT IN A CLASS ACTION
The Court has a limited role vis a vis a proposed settlement in a class action. The Court may accept the settlement, reject the settlement and require further negotiations, or
3

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reject the settlement and set the case for trial. Evans v Jeff D, 475 U.S. 717, 727 (1986). The Court cannot “modify a proposed [settlement order] and order its acceptance over either party’s objection.” Id.
Federal Rule of Civil Procedure 23 governs class actions. Although Rule 23 was amended in 2003, the standards for approval of class action settlements have remained stable for decades. Amended Rule 23(e)(1)(C) states that a class action settlement must be “fair, reasonable, and adequate.” The Fifth Circuit’s most recent decision on this topic uses the same standard, and that Court has relied on it since at least the 1970’s. Ayers, 358 F.3d at 368; Reed v General Motors Corporation, 703 F.2d 170, 172 (5th Cir. 1983); Parker v Anderson, 667 F.2d 1204, 1208-09 (5th Cir.), cert. denied, 459 U.S. 828 (1982) and cases cited therein.
In the Fifth Circuit, six factors determine whether a proposed settlement is fair, reasonable and adequate. The factors are:
1. the existence of fraud or collusion behind the settlement; 2. the complexity, expense and likely duration of the litigation; 3. the stage of the proceedings and the amount of discovery completed; 4. the probability of plaintiffs’ success on the merits; 5. the range of possible recovery; and 6. opinions of the class counsel, class representatives and absent class members. Ayers, 358 F.3d at 369. These are the same factors that this Court relied on when it approved the Consent Decree in this case in 1996. Fairness Order at 20-34.4
4 Plaintiffs’ counsel argued that the Court should also consider factors established by In re Prudential Ins. Co. of America Sales Practices Litigation, 148 F.3d 283, 316-24 (3rd Cir. 1998), cert. denied, 525 U.S. 1114 (1999); see, ¶ 20, COMMENTS; SUBDIVISION (e)(1)(C). TR 9:13 to 10:3 (2007). Despite the COMMENTS’ reliance on In re Prudential,
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FINDINGS OF FACT The Court makes the following findings of fact: 1. THE EXISTENCE OF FRAUD OR COLLUSION BEHIND THE SETTLEMENT. The proposed Orders are not the product of fraud or collusion. TR 31:24 – 32:1; TR 168 (2007); see also, P.Ex. 355; ¶ 9-10 (2007). Indeed, the Court need look no further than the highly contentious history of this case. This Court has ruled twice in favor of the Plaintiffs. Frew 2000; Frew 2005. Both times, Defendants appealed and lost. See Frew 2000, Frazar v Gilbert, 300 F.3d 530 (5th Cir. 2002); Frew v Hawkins, 540 U.S. 431 (2004); and Frazar, 457 F.3d 432. The proposed settlement is the product of difficult negotiations. Prior to reaching an agreement in principle on April 9, 2007, Plaintiffs’ counsel, Defendants’ counsel and Defendants’ staff met several times for lengthy negotiations, and also exchanged numerous drafts of the proposals. TR 178 (2007). Negotiations were at arms’ length and honest, as the parties had substantially different ideas about how to approach some areas under discussion. Commissioner Hawkins, who was briefed about the negotiations on a regular basis, testified that the intense negotiations addressed a complex subject, and observed that at the beginning, there was a “pretty good distance between the approaches that were laid on the table.” TR132: 3-4(2007). He averred that Defendants wanted a proposal that was “workable or feasible . . . complied with federal . . . [and] state laws related to procurements . . .
the Court relies only on Ayers both in its July 9, 2007 oral Order and here because the Fifth Circuit’s standards have been consistent over the decades. Further, in the post-2003 Ayers decision, the Court used the same pre-2003 factors, which indicates that the Fifth Circuit saw no reason for change even after the Rule 23 amendments.
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that provided good, sound, useful information that could be acted upon.” TR 132:7-11 (2007).
Substantial give and take from both sides was required in order to arrive at the proposed Order currently before the Court. Indeed, when the parties announced settlement to this Court on April 9, 2007, they asked for more time to ensure that the proposed Order was properly drafted. In the ensuing weeks, they exchanged many drafts of the eleven proposals. TR 131:17-22; 178 (2007).
Overall, the proposed Corrective Action Order, while not perfect, “is practical in nature . . . [and] . . . reflects a good faith effort on the part of the parties to arrive at a meaningful and constructive plan of action that will benefit Texas' neediest children and youth.” Dunkelberg deposition, ¶¶ 36-37. As Dr. Moore testified, the Corrective Action Orders strike a balance “shaped by reality, by reasonableness and feasibility . . . [I]f . . . the parties . . . actually are able to fulfill their responsibilities, the outcome should be adequate to achieve the remedies that we all seek.” TR 33:15-21 (2007).
2, THE COMPLEXITY, EXPENSE AND LIKELY DURATION OF THE LITIGATION. The parties agree that this case is complex. TR131:11 (2007). Indeed, as early as the 1996 Fairness Order, the Court recognized that “the problems that prevent class members from receiving needed health care are complex and interrelated . . . [and] . . . ‘multifactorial.’" Fairness Order at 14. These sentiments were echoed by Dr. Seale and Dr. Moore. TR33:22 –24 (2007)(“on a scale of 1 to 10, real close to 10.”); TR66:13 – 14 (2007). Moreover, this Court’s lengthy findings of fact in Frew 2000 and Frew 2005 amply demonstrate factual complexity. These prior findings of Defendants’ decree
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violations relate directly to the current proceedings because one purpose of the proposed
Order is to bring Defendants into compliance with the Decree.
The 360+ exhibits presented by Plaintiffs at the July, 2007 hearing further
demonstrate factual complexity. Class counsel explained that Plaintiffs would have
presented Exhibits 1-330 at the April, 2007 hearing if the case had not settled. As well,
Plaintiffs were prepared to present the live testimony of two fact witnesses and five
experts, Gary Clark, MD, Chief of Neurology and Developmental Neuroscience, Department of Pediatrics, Baylor College of Medicine in Houston, P.Ex. 25 (2007)5;
Anne Dunkelberg, Associate Director of the Center for Public Policy Priorities in Austin, P.Ex. 26 (2007)6; Jose Luna, Jr. MD, MBA, DABFP, Chief Medical Office, Centro San
Vicente in El Paso, P.Ex. 27 (2007); Frank Moore, PhD, Associate Professor, UTHSC School of Public Health in San Antonio, P.Ex. 28 (2007)7; Nancy Sue (Suzi) Seale, DDS,
MSD, Chair of the Pediatric Dentistry Department at Baylor College of Dentistry in Dallas, P.Ex. 29 (2007)8.
5 Dr. Clark testified by deposition in the July, 2007 hearing. P.Ex. 354. Based on his qualifications stated in P.Ex. 25 and his deposition, the Court determines that Dr. Clark is an expert in pediatrics and pediatric specialty care as they apply to class members, including issues raised in this case relating to class members’ access to health care that they need. 6 Ms. Dunkelberg testified by deposition in the July, 2007 hearing. P.Ex. 355. In 2005, the Court qualified Ms. Dunkelberg as an expert in “Medicaid policy in Texas as it relates to this case, and the characteristics of the Texas Medicaid population.” 6 TR 149 (2005). She remains in that capacity. 7 Dr. Moore testified in person at the July, 2007 hearing. In 1995 and 2005, the Court qualified him as an expert in “the field of public health as it pertains to the issues in this lawsuit.” 4 TR 34:21-15 (2005) He remains in that capacity. 8 Dr. Seale testified in person at the July, 2007 hearing. She is an expert in “pediatric dentistry, oral health conditions, and problems of children, including members of the class, and barriers that prevent class members from obtaining dental care.” 6 TR 59:16-23 (2005); Frew 2000, 109 F. Supp.2d at 589, n.5. She remains in that capacity.
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Finally, Plaintiffs would have presented the deposition testimony of one expert witness, Dr. Jane C. Rider, a pediatrician in private practice in San Angelo,9 and four fact witnesses, who are mothers/grandmothers of class members.10 Defendants had planned to present more than 70 exhibits and a number of witnesses, including seven experts.11
The large number of class members involved is further evidence of factual
complexity. The class includes more than 2.8 million indigent children in federal fiscal
year 2006. P.Ex. 30 (2007)(CMS 416 for 2006). They are located throughout Texas, not
only one of the largest states in the Union, but one with a diverse population.
The case involves many aspects of the health care and support services that this
large group of children requires. See TR33:25–34:20 (2007). The complexity of this
topic is demonstrated by the fact that the parties propose an eleven-part Corrective Action
Order, with subparts for each of those eleven parts.
This case is also legally complex, as demonstrated by the two prior appeals. For
example, in the first appeal, the Supreme Court had to determine a significant question of
Eleventh Amendment immunity. Frew, 540 U.S. 431
9 Dr. Rider’s March, 2007 deposition and cross-questions are P.Ex.357. Her supplemental deposition discusses the proposed Corrective Action Order. P.Ex. 358. 10 The March, 2007 deposition and cross-questions of G.B. are P.Ex. 360 (sealed). In P.Ex. 361 (sealed), G.B. discusses the proposed remedies currently before this Court; the March, 2007 deposition of J.D. of Nacogdoches is P.Ex. 363 (sealed). Her supplemental deposition discusses the proposed Corrective Action Order. P.Ex. 364 (sealed)); J.P. of Abilene and her son have had many, ongoing problems with the Medical Transportation Program (MTP). P.Ex. 365 (sealed)); and K.S. of Argyle (K.S. testified in person before this Court in 2005 and via deposition in 2007), whose two adopted children have serious disabilities, have had trouble obtaining access to mental health care including counselors and psychiatrist, problems with inaccurate referral lists for specialty care, and delays in receipt of medications. P.Ex. 366 (sealed)). 11 Defendants' witness list included Dr. Elizabeth Shenkman, Ph.D., Chair of the Department of Epidemiology and Health Policy Research at the University of Florida College of Medicine, and John O'Brien, Director of the Texas Legislative Budget Board, as well HHHS policy officials.
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Moreover, had the parties not proposed a settlement, this Court would have confronted the difficult legal task of determining how to remedy decree violations that have existed since at least 2000. At the same time, the Court would have been required to defer when possible to Defendants’ reasonable exercise of discretion and their judgment about what approach to take. See, e.g., Milliken v Bradley, 433 U.S. 267, 28081 (1977). Achieving this balance would have been time consuming and difficult.
With respect to the likely duration of the case, this case began in 1993. It has been in active litigation for over seven years, since the Court found violations of the Consent Decree in 2000. Membership in the class, however, depends on age; Medicaid recipients who reach the age of 21 are no longer class members. Over the years of appeals, many former class members have “aged out” of the class. Many never got the benefits of the Decree or health care that they should have received. Other current class members have gone without needed services during the years of appeals. P.Ex. 355 (2007); Dunkelberg deposition, ¶ 36. If the Court were to reject the proposed settlement, litigation would continue, including a likely appeal. Many young Texans vulnerable to health problems because of their poverty would reach the age of 21 during the appeal, never having obtained the benefits that this litigation is intended to provide for them. Others still young enough to remain in the class would not receive needed health care, causing suffering or even death. TR 87:21 – 25 (2007).
The lengthy duration of this case favors approval of the Corrective Action Order. The Corrective Action Order requires Defendants to begin to provide relief now, instead of after the conclusion of another lengthy appeal.
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3. THE STAGE OF THE PROCEEDINGS AND THE AMOUNT OF DISCOVERY COMPLETED This case began in 1993. As stated above, this Court found that Defendants were violating the Consent Decree in 2000 and again in 2005. Discovery was already “extensive” when the Court approved the Consent Decree in 1996. Fairness Order at 23. There was extensive discovery in conjunction with the 2000 and 2005 evidentiary hearings, as well as in preparation for the April 2007 hearing. TR 169 (2007). In addition, Defendants file quarterly reports related to their Consent Decree activities, as required by ¶¶ 306-07 of the Consent Decree. They filed their first report in July, 1996 and, apart from a hiatus during the first appeal, have continued to file reports since that time. DOCKET NO. 161. TR 169-170 (2007). Moreover, Plaintiffs’ counsel have engaged in ongoing, informal discovery, which helped them to stay current on issues related to this case. For example, they have attended Defendants’ regularly scheduled public meetings. The extent of discovery is important because it tells the Court whether or not counsel were properly informed before they negotiated a settlement. In re Corrugated Container Antitrust Litigation, 643 F.2d 195, 211 (5th Cir. 1981), cert. denied, 456 U.S. 998 (1982). As early as 1996, the Court had no doubt that Plaintiff's attorney, Susan Zinn, was “well informed about problems with EPSDT in Texas and possible solutions.” Fairness Order at 24. Dr. Moore and Dr. Seale likewise testified that Plaintiffs’ counsel were well prepared for the 2007 negotiations in this case. According to Dr. Seale, both Plaintiffs' counsel are “very knowledgeable about the needs and issues . . . and have put together. . . a very good plan that shows a lot of expertise and . . . preparedness.” TR65:5-8 (2007); see also, TR32:2-10 (2007)(Dr. Moore). Indeed, throughout their
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prosecution of this case, Ms. Zinn and Ms. Swanson have demonstrated their mastery of this case and their knowledge of the class, the barriers that prevent class members from securing proper access to health care through the Medicaid program, possible remedies for those problems and their likely success in Texas.
4. THE PROBABILITY OF PLAINTIFFS’ SUCCESS ON THE MERITS The Court has twice found Defendants in violation of the Consent Decree. Frew 2000; Frew 2005, 401 F.Supp.2d at 684-85. Further, on March 30, 2007, Defendants’ lead trial counsel informed the Court that Defendants accepted that they had lost. See also, DOCKET NO.618 at 1-2. However, had this litigation continued, the Court would not only have had to address Defendants’ Decree violations, but it would also have had to craft its own remedial orders. In this regard, the success of Plaintiffs’ proposed remedial orders was unclear, as the Court would have been required to give deference to Defendants’ reasonable judgement if they had presented adequate remedial proposals. Milliken, 433 U.S. at 280-81.12 Moreover, as part of the proposed settlement, the parties agreed to relief concerning Decree sections not discussed in Frew 2000 or Frew 2005. For example, in 2005 this Court did not make any findings about Decree violations related to class members’ access to medications or durable medical equipment that class members need. Nonetheless, an entire section of the parties’ proposed Order addresses these issues. Commissioner Hawkins testified that Defendants will be able to hold up their end of the bargain presented in the Corrective Action Order. TR 133:3-7 (2007). He believes
12 The proposed Order, of course, already incorporates Defendants’ reasoning and judgment since they agreed to it.
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that the Order is "sound . . . [and] . . . focused on some of the critical needs and issues." TR 133:10-11 (2007).
Defendants' lead trial counsel pointed out that Defendants can comply with the Order because they had input into its development. It requires Defendants to do things that are possible and that make sense. They support the proposed research/corrective action plan process because they want to develop programs that work. TR 178 (2007). They hope that the research will help them to develop efforts that are effective and have demonstrable results. This approach is "something that works and is efficient. That's what underlies all 11 of these corrective action plans . . . We know we can implement them. We believe they will be effective and work. We believe they will bring significant relief to the class." TR 179 (2007).
5. THE RANGE OF POSSIBLE RECOVERY Overarching Issues
Parties give and take to achieve settlements. U.S. v Armour, 402 U.S. 673, 681 (1971). Typically neither Plaintiffs nor Defendants end up with exactly the remedy they would have asked the Court to enter absent the settlement. Id. The question here is whether the proposed Corrective Action Order is fair, reasonable and adequate. This calculus is much more difficult than it would be in a case where damages are at issue. Then, the Court would compare the settlement dollar amount to the maximum dollar amount that could have been achieved at trial. Here, the question is whether the entirety of the eleven-part settlement meets the legal standard.
The Court begins by reviewing overarching issues concerning the possible range of recovery and the proposed settlement. A discussion of the eleven proposals follows.
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As previously noted, the problems before the Court are complex. The Corrective Action Order appropriately addresses this complexity because it requires Defendants to make improvements regarding a broad range of problems so that class members can obtain the health care that they need. See, TR66:14-16 (2007)(Dr. Seale), see also, TR 34:21–35:1 (2007). Indeed, the eleven sub-proposals each address important topics that require improvement so class members can receive health care that they need and are entitled to receive.
The settlement significantly increases the resources available to Defendants to comply with the Decree and provide services that class members need. Defendants will receive an increase of about 14% in spending for class members in fiscal years 20082009. Dunkelberg deposition, ¶ 11. Specifically, the legislature has appropriated $706.7 million in general revenue, estimated to be worth over $1 billion if federal matching funds are secured, to implement the proposed corrective action plans for fiscal years 2008-09.
The proposal also requires studies to determine the extent and likely causes of various problems with Defendants’ decree compliance. Defendants will contract with competent, independent researchers to conduct studies about outreach, transportation, medical check ups and managed care proposals, and, potentially, about case management. Further, the parties must consult about study protocols and researchers, which should encourage ongoing cooperation between them. At the same time, the proposed settlement accommodates Defendants’ procurement obligations under federal and state law.
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Defendants will not, however, be forced to conduct studies for abstract purposes. Instead, once the results are known, Defendants will, if necessary, develop corrective action plans to resolve problems that are identified. This approach of investigation followed by corrective action “is a sound approach in which the involved state agencies essentially can self-regulate to achieve the goals for improvement set out in the consent decree.” Dunkelberg deposition, P.Ex. 355; ¶ 16. Moreover, Defendants will confer with Plaintiffs’ counsel as they develop the plans, which will likely reduce the need for the Court’s involvement in these issues.
Dr. Seale commented in favor of the evaluation/corrective process: [One] of the most powerful parts of this whole corrective action plan . . . [is the] pieces that deal with outcome assessment . . . [to look] . . . at whether we’re making a difference. And there’s a large component devoted to assessing effectiveness of the programs, looking at the programs and making changes if they need to be made along the way and in tracking change over time and tracking outcomes so we know we’re making a difference. TR67:5–13 (2007). Per Dr. Seale, this approach is “the most effective way to develop and create . . . corrective action plans around a data set that reflects the status of that population you’re going to treat.” TR 87:9-12 (2007). See also, TR 132:10-12 (2007)(Hawkins)(“good, sound, useful information that can be acted upon.”). In addition, the settlement is a “combination of program changes and funding [that] can be expected to result in substantial improvement in compliance with the consent decree and service to the class members.” Dunkelberg deposition, P.Ex. 355; ¶ 10. While the proposed Corrective Action Order increases payments to health care professionals, it “does not rely exclusively, or too heavily, on increased fees to achieve its goals. The less-cost-intensive components of the corrective action plans . . . are thoughtful, detailed, and targeted at correcting complex systemic shortcomings . . . which
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. . . are extremely important to the overall impact of the corrective action plans.” Id. ¶ 16; see also, TR35:10 – 13; TR66:18- 67:1 (2007).
Each of the eleven proposals requires an “assessment conference.” After Defendants complete proposed tasks, counsel will “confer to determine what further action, if any, is required.” If they agree, they will report to the Court; if not, the Court will resolve the dispute. Once Defendants comply with that part of the Decree and the related section of the Corrective Action Order, then the Court may terminate that part of the Consent Decree and the Corrective Action Order. Thus, the “assessment conference” process provides a clear potential end point for Defendants’ obligations under the Consent Decree. Further, the “assessment conference” encourages cooperation among the parties. Dr. Rider supplemental deposition, P.Ex. 358, ¶ 7 (2007).
The Court hopes that the parties’ progress toward compliance with the Decree and the Corrective Action Order will be swift, smooth and complete. The Court further hopes that the parties’ cooperative efforts will continue to strengthen over the remaining course of this litigation.13
Nonetheless, “it is essential that the Court monitor . . . Texas’ Medicaid problems carefully. . . . ” Dr. Rider supplemental deposition, P.Ex.358; ¶ 7 and throughout (2007). The “assessment conference” gives the Court one avenue to monitor compliance with these Orders. Since the Decree remains in effect, Defendants will continue to file quarterly reports to keep the Court apprised of their progress. Decree, ¶¶ 306-07. Also, various sections of the proposed Corrective Action Order specifically permit judicial involvement if disputes arise. Finally, while the Court hopes that no further judicial
13 Dr. Moore and Dr. Seale both commented on the high level of cooperation among the parties at this stage in the case. See also, P.Ex. 336 (2007).
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review will be necessary until the “assessment conferences,” the Decree also still permits the parties to return to Court if needed. Decree ¶ 303.
One final overarching issue: the Order must be fair, reasonable and adequate for the entire class. Parker, 667 F.2d at 1211. This class includes more than 2.8 million children. P.Ex. 30 (2007)(CMS 416 for 2006). In a class as large as this where complex equitable relief is at issue, it is possible that different groups within the class will have slightly different concerns. Indeed, the Court would have been surprised if this were not true in this case because children of different ages and different states of health all belong to the class.
The proposals address specific needs of particular subgroups of the class. For example, the outreach proposal addresses “racial and ethnic disparities relating to each form of [proposed] outreach, and may also assess other relevant issues relating to cultural appropriateness.” DOCKET NO. 637; OUTREACH AND INFORMING at 4. This approach is appropriate in light of disparities in utilization of care based on race and ethnicity. P.Ex. 187 (2007). For example, African American and Hispanic class members are more likely to lack medical check ups than are Caucasian class members.
Minority class members are also much more likely than Caucasians to require hospital care for ambulatory care sensitive conditions. Id. Ambulatory care sensitive conditions are those that should properly be treated in an outpatient setting like a doctor’s office, instead of in the hospital or emergency room; receipt of hospital or emergency room care for ACSCs may indicate inadequate access to outpatient care. Frew 2005, 401 F.Supp.2d at 679-80.
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It is appropriate to address these disparities in the outreach proposal, because outreach helps families to overcome common barriers that prevent class members from obtaining check ups and other services that they need. Decree ¶¶50-51. In addition, the outreach proposal addresses “the causes of missed medical and dental check ups, and possible ways to improve the effectiveness of outreach efforts.” DOCKET NO. 637; OUTREACH AND INFORMING at 6. To be “effective,” of course, outreach must be appropriate to the needs of various racial and ethnic groups.14
Other proposals also address the needs of subgroups. For example, the provider training proposal requires training of general dentists to enable them to care for class members aged 1-3 years. The managed care proposal addresses acceleration of health care services for children whose parents are migrant farmworkers.
CORRECTIVE ACTION PLANS The eleven individual corrective action plans that make up the Corrective Action Order are all reasonable in light of the best possible equitable recovery. A. Adequate Supply of Health Care Providers Proposal Ensuring an adequate supply of health care providers is “the most difficult problem” raised in this case. Fairness Order at 17. The number of class members has increased over the course of this case, from about 1.5 million children in 1993 to more than 2.8 million in 2006. Compare, Frew 2000, 109 F.Supp.2d at 587; P.Ex. 30 (2007)(2006 CMS-416).
14 Moreover, according to Dr. Moore, it is possible to overcome these racial and ethnic disparities. A large study showed “almost no” disparity on the basis of race/ethnicity in Medicaid children’s receipt of check ups in California, Georgia and Michigan. P.Ex. 344 at 93 (2007).
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Despite this increase in the size of the class, Defendants have not succeeded in increasing – or even maintaining – the number of health care providers who take care of class members. For example, the percent of medical doctors in Texas who opened their practices to Medicaid patients dropped from 67% in 2000 to 36% in 2006. P.Ex. 142 (2007). This decrease causes hardship to class members. Parent K. C.-D. is “currently driving over 60 miles to see a pediatrician, because there is no qualified pediatrician in …[the Floresville] area who participates in Medicaid.” P.Ex. 362; ¶ 9 (2007); see also, P.Ex. 356, ¶ 9 (2007).
The problem remains severe in the area of mental health. See, Frew 2000, 109 F.Supp.2d at 627, 629; Frew 2005, 401 F.Supp.2d at 679 and n. 105. Regarding Defendants’ 2007 training module assessment, one reviewer noted that the
mental health module’s [i]nstruction on referral relationships is unrealistic. The module . . . make[s] an assumption that it is actually possible to identify behavioral health referrals in all communities. Even where there are providers, there is a high probability that these providers will not be accepting referrals of . . . [class members] . . . to be identified through this process. This module puts forth an impossible requirement therefore. P.Ex. 225 at 1 (2007); see also, P.Ex. 226-236 (2007). It is undeniable that there are shortages of many kinds of health care providers, such as doctors, dentists, and mental health professionals for class members. Specialists, in particular tend to locate in urban areas. 1 TR 7:1-8 (2005); 3 TR 196:14-17 (2005); 8 TR 84:7-11; 84:21 to 85:7 (2005). Further, some class members live in rural areas or poor neighborhoods where many health care providers do not want to practice, or do not want to live. 3 TR 187:2 to 201:14 (2005). Even when there is an adequate supply of health care providers for the total population, not enough health care providers take care of class members.
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Defendants recognize that low reimbursements also deter professionals from
serving class members, even in urban areas. In January, 2007, Defendants noted that
Medicaid reimbursement rates have not increased for years, which raises a “general
concern . . . [about] the state’s ability to maintain a quality provider base . . . [absent]
meaningful rate increases . . ..” P.Ex. 148 at 1-2 (2007). Over the course of time, the
cost of health care has increased dramatically but Texas Medicaid payments have not
kept pace. TR39:18-21 (2007). Indeed, in 2001, Defendants noted that “a fee increase
may help retain current providers and recruit new providers, allowing more eligible children to receive services.” P.Ex. 243 at 4, 22 (2007)(dental).15
The Provider Supply proposal significantly increases reimbursement rates for
health care providers who take care of class members. This should help attract more
professionals to take care of children with Medicaid, which, in turn, should give families more choice among health care providers to take care of class members. If families can
choose among professionals, they will choose to take their children to the best ones.
Other professionals will either have to improve the quality of their services or go out of
business. TR 23:4 – 18 (2007). As Ms. Dunkelberg noted in her deposition:
[T]here are a number of historical examples in which . . . bringing Medicaid rates closer to market rates with a goal of improved access to care . . . [have] made significant gains as a result.
15 G.B.’s grandson is a class member. He is diagnosed with several psychiatric disorders. They live in Eastland. P.Ex. 350, ¶¶ 2, 4 (2007). G.B. hopes that the reimbursement increases will mean that “more doctors will join the program” particularly so that her grandson can see his physicians and counselors more often. His “behavior and symptoms have gotten worse since he has been seeing a psychiatrist less often.” P.Ex. 361, ¶ 7 (2007). Similarly, J.D. is the mother of two class members from Nacogdoches. Her son has back and foot problems and her daughter, despite two nasal surgeries, is unable to breathe through her nose and consequently has chronic sores in her mouth. P.Ex. 363; ¶¶ 2-7 (2007). J.D. notes a “big shortage of both general and specialist doctors who take Medicaid..” P.Ex. 364; ¶¶ 6-8 (2007).
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On the other hand, the rate increases proposed for medical and professional services to Texas Medicaid beneficiaries under age 21 will still leave rates well below what private insurers and (in most cases) Medicare pay for the same care. The proposed increases are not at all extravagant or excessive. It is my opinion that the proposed investment is large enough that we can reasonably expect a measurable improvement in access to care and system performance . . . P.Ex. 355; ¶¶ 14-15 (2007); see also, TR40:3-7 (2007); P.Ex. 356, ¶ 9 (2007)(more doctors and dentists will take care of class members if reimbursement increases.)(Mary Fisher). Dr. Moore agreed, noting that if “more providers will accept Medicaid . . . that will have a beneficial effect . . . in the way of increasing access to the members of the class . . . [A]s we begin to achieve establishing more medical homes and more continuity over time from these providers, . . . that will have a very beneficial effect on population health as well.” TR42:19 – 43:2 (2007). The Court commends Defendants’ prompt efforts to implement the new reimbursement increases. See TR 36:13–18; 42:11-15 (2007). By the time of the July 9, 2007 hearing, Defendants were already well along the road toward implementation of increases for reimbursements to physicians/other professionals and dentists. They had made initial proposals, met with Plaintiffs’ counsel and considered their views, P.Ex.340; 348; 350 (2007), proposed new reimbursement levels, P.Ex. 341; 349 (2007), and scheduled an administrative hearing to take public comments on July 10, 2007. P.Ex. 342; 351 (2007). Defendants plan to implement the new reimbursement rates on September 1, 2007. TR42:11 – 16 (2007). Dr. Hellerstedt, the Medical Director for the Texas Health and Human Services Commission, also testified about the proposed reimbursement increases. Defendants’ Physician Payment Advisory Committee (PPAC) is composed of about 15 members, who are all health care professionals. TR148–149 (2007). PPAC met twice to consider the
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proposed rate changes. At the end of its first meeting, PPAC suggested reimbursement
changes and asked Defendants’ staff to research the impact that the proposals would
have. At the second meeting, PPAC approved proposals for reimbursement increases for
1) physicians/other professionals and 2) dentists. TR148–150; 153 (2007); P Ex. 342,
351 (2007).
(a) Physicians and Other Professionals
Dr. Hellerstedt described the six step proposal for physicians and other
professionals, as follows:
1. Targeted increases for Texas Health Steps:
A. Texas Health Steps medical check ups: for new patients, the fee will be 100% of the 2007 Medicare fee; for established patients, the fee will be 92% of the 2007 Medicare fee. In addition to differentiating between payment for new and established patients, this system also differentiates payments based on class members’ ages.
B. The current administrative fee for Texas Health Steps immunizations will be increased by 60%.
2. Targeted increases for Evaluation and Management Codes: All other evaluation and management codes will be increased by 27.5%.
3. Targeted increases for anesthesia codes: Anesthesiology reimbursement is based on a structure that includes a base rate (“for starting the procedure”) and a time factor to account for the different length of time that the same surgery may take for different patients. The base units for anesthesia will be updated to current Medicare units. Also, the two conversion factors specific to anesthesia will be increased by 27.5%. Anesthesiologists have “expressed satisfaction with the outcomes” of these increases.
4. Non-Texas Health Steps immunizations: The Texas Health Steps immunizations are standard immunizations that are universally recommended for children. Some class members also need other immunizations based on specific needs, for example, malaria vaccine for a child traveling to some foreign countries, rabies immunizations and immunoglobulin. The administrative fees for these “non-Texas Health Steps” shots will be increased in the same manner outlined above in Step 2 (60% increase).
5. Targeted increases for specific mental health codes: Defendants used access based fees for several mental health codes. “Access based fees” give special consideration
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to increase reimbursement when the RVU-based increase is not sufficient. The proposal give access based increases for psychiatric diagnostic interviews, comprehensive psychological assessments (which are often used to assess the mental health of foster care children) and psychotherapy/psychological counseling. 6. Remaining procedure codes: Several thousand codes are not addressed by Steps one through five. These remaining procedure codes will be updated to 2007 Medicare Relative Value Units and receive a 5% increase to the conversion factor from $27.276 to $28.640. If this change does not result in an increase of at least 5% over the current reimbursement for a specific service, then the fee will be increased by 5% anyway. No fee will increase to more than 150% of current Medicare fees. See, P.Ex. 342 at 7-8 (2007); TR155-162 (2007).
The Relative Value Units (RVU) system is a standard approach used by many insurers, including Medicare and commercial insurers. TR 151-52 (2007). It addresses “a very, very broad range of medical services.” TR 152 (2007).16 Each medical service/procedure is assigned a “relative value” based on the effort involved. TR 152 (2007).17 Then each RVU is multiplied by a standard conversion factor to determine the reimbursement to be provided. 41:16–24 (2007).
According to Dr. Hellerstedt, updating the RVU system was the “cornerstone” of PPAC’s approach to reimbursement increases for physicians and other professionals. TR 150 (2007). Defendants had implemented RVUs in 1992 but had not updated them since then. “[B]y updating the RVUs in the system, we . . . brought those relative values of the various services up to date.” TR151 (2007).
The RVU system is “a nationally accepted method for calculating reimbursement.” TR40:17-18 (2007); see also, TR152-53 (2007). Physicians are
16 The RVU system does not address anesthesia. Defendants properly plan to institute a separate approach for anesthesia reimbursements. TR157 – 158 (2007). See above. 17 “Effort” is determined by three factors: time, support staff/office expense and insurance costs. TR40:23 – 41:7 (2007); TR152-153 (2007).
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familiar with it and view it as fair.18 Research demonstrates that physicians are more likely to accept reimbursement structures that they understand and perceive as fair. TR42:1 – 10 (2007).
Dr. Gary Clark testified by deposition that the “proposals fairly improve reimbursement for providers.” P.Ex. 354; ¶ 8 (2007). They are “adequate to encourage more physicians to participate in the Medicaid system in the State of Texas. Further, these proposals should improve access to care for the children of Texas who have Medicaid.” Id. ¶ 7. Dr. Rider stated that the reimbursement increases “will prevent further decreases in the supply of doctors available to Medicaid-eligible children. Stabilizing the provider base is essential to making the Medicaid program work, so this is a big step in the right direction.” P.Ex. 358; ¶ 8 (2007).19
Moreover, the Texas Medical Association (TMA) “strongly endorses” Defendants’ approach to the reimbursement increases. DX 38; P.Ex. 343 (2007). It “will enable physicians who currently limit their Medicaid participation to open their doors to more patients. For those who have quit Medicaid entirely, we are hopeful that some will reconsider taking at least a few patients each month.” Id. Although Defendants and TMA considered other options, the proposal, per TMA, “is the only one that achieves organized medicine’s goal of a measurable, fair, transparent methodology benefiting both primary and specialty care physicians.” Id. The TMA also opines that the proposed fee schedule for medical check ups “will entice more primary care physicians to participate in the
18 Notably, the Texas Medical Association endorses the use of the RVU structure for Defendants’ reimbursement changes. DX 38; P.Ex. 343; TR163 – 164 (2007). 19 She is concerned, however, “that the increase will not be enough to draw nonparticipating doctors into the Medicaid program.” Nonetheless, she urges approval of the proposed settlement because “it represents such a big improvement over our current situation.” Dr. Rider supplemental deposition, P.Ex. 358; ¶ 8 (2007).
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program and thus promote the TMA goal of creating a ‘medical home’ for all children.” Finally, the proposed methodology is the only one that “can be implemented by September 1, 2007” both in fee for service and managed care programs. DX 38; P.Ex. 343; see also TR 144:19-21 (2007).
(b) Dental Reimbursement “Dental decay is the most common disease of childhood.” TR 87:15 (2007). Research shows that it causes missed school days and loss of sleep. In addition, “it can have long-term health implications. Untreated decay can actually cause severe health problems.” TR 87:18-20 (2007) (Dr. Seale). Evidence shows that “disease of the mouth and gums, can cause disease in other parts of the body. So a healthy mouth is . . . important to a healthy body.” TR88:9-11 (2007). As Dr. Seale observed, "we should have effective plans . . . to take advantage of the fact that … [dental disease] can be prevented.” TR 88:4-5 (2007). Class members suffer dental disease “in spite of the fact that they . . . should have access to a very broadly based plan of services that should prevent and treat that disease, but it’s not happening.” TR 62:17-19 (2007).
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Part of the problem is the longstanding, severe shortage of dentists who take care of class members. Frew 2000, 109 F.Supp.2d at 604; Frew 2005, 401 F.Supp.2d at 65657. This problem has worsened over the years. In FY 1998, 1,783 dentists were taking care of class members. By the fourth quarter of 2007, however, only 1,622 dentists took care of at least one class member. P.Ex. 248 (2007). As Dr. Seale stated, the “number of [class] members is increasing, and the numbers of dentists are dwindling.” TR 67:21-22 (2007).
As Plaintiff Mary Fisher observed in her deposition: [o]ver the years it has gotten harder and harder to find a dentist who takes Medicaid anywhere close to where I live [in Paris.] Lots of people tell me they have to take their children to Mt. Pleasant, about 50 miles away, to see a dentist. Some have to go even farther. There are dentists in Paris, but they don’t take any new Medicaid patients. There used to be a good dentist that people in my neighborhood could walk to, but he doesn’t take Medicaid anymore. So now people have to go far away and some of them just can’t get there. P.Ex. 356; ¶¶ 7-8 (2007). Nicole Carroll, who testified in person during the July 9 hearing, lives in Denton. TR12:9 – 28:1 (2007) Ms. Carroll is the mother of four class members, all of whom have significant health problems. TR14:7–16:6 (2007).20 She has encountered problems obtaining medications, finding doctors who accept Medicaid, and, especially, finding the specialists that they need. She has also experienced problems with the Medical Transportation Program.. TR 16:7–16:24 (2007).
20 The health problems confronting Ms. Carroll’s children include serious mental health issues (depression, bipolar disease, ADHD, anxiety, and learning disorders) as well as chronic physical conditions (asthma and recurring , chronic ear infections in one case necessitating multiple ear surgeries and, in the other, resulting in a speech delay). TR 14:7 (2007).
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Ms. Carroll also works as a Family Partner at the Denton County Federation of Families, a non-profit organization that works with families whose children have severe mental health problems. Nearly all of Carroll’s clients are on Medicaid, and she assists them with problems obtaining health care. TR12:23–14:16; 16:25–17:4 (2007). She testified that in Denton, only one dentist accepts Medicaid. The dentist will not schedule appointments until the children’s Medicaid card indicates that a check up is due. Then there is a delay to get in for an appointment. As a result, Ms. Carroll’s children only get dental check ups every nine or ten months instead of every six months, as they should. TR19:10–17 (2007).
One reason for the shortage of dentists, according to Dr. Seale, is low dental reimbursements. At the time of the July hearing, 99% of Texas dentists normally billed more than Texas Medicaid pays, and often considerably more. TR68:6–12 (2007). Indeed, “many dentists would tell you that . . . the reimbursement rate is less than it costs them to provide the service. So in fact, when they treat Medicaid patients, they’re losing money, and that’s a huge disincentive for them to participate in the program.” TR68:14 – 19 (2007).
According to Dr. Seale, if reimbursement rates are increased to a “reasonable level,” dentists will stay in Medicaid and others will join. TR 68:20; 78:20 (2007). The number of dental appointments available to class members will increase, which hopefully will result in an increase in the number of class members who get dental services, including check ups. TR 78: 18–79:1 (2007).
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The initial proposal was an across-the-board 50% increase to all dental codes, however, over the course of subsequent negotiations, the parties decided to modify this strategy. TR74:1-5 (2007); P.Ex. 348 (2007).21 Specifically, Defendants agreed to investigate what would happen if the sum of money that represented the estimated cost of a 50% across-the-board increase in dental rates was instead used to double rates for a set of 35 dental codes and services identified by Plaintiffs, with all other rates remaining unchanged.
Dr. Seale testified that the 35 services in question represent the care that is the most important for children. Indeed, at Baylor College of Dentistry in Dallas, the 35 codes represent the full pediatric curriculum for future general dentists. TR71:6–72:10 (2007). Dr. Seale testified that doubling the reimbursement rates for the 35 services would be sufficient to “reasonably expect increased participation” by dentists. TR73:911 (2007).
The initial list of 35 dental services is very comprehensive. It encompasses “100 percent of the . . . dental needs for about 80 percent of the class members. And for the other 20 percent . . . it would cover about 80 percent of their needs.” TR72:15–19 (2007). Of course, reimbursement for the remaining needed services remains at current levels. TR72:20–24 (2007).
21 Plaintiffs were advised by a capable group of dentists, including Dr. Seale, two past Presidents of the American Academy of Pediatric Dentistry (both from Texas, Dr. Hunke and Dr. Kennedy), another Texas pediatric dentist with expertise in the Texas Medicaid dental program (Dr. Steinhauer), and Dr. Jim Crall of the University of California at Los Angeles. TR69:2 – 70:14 (2007). Dr. Crall is a “highly qualified” expert on Medicaid dental programs. TR69:14 – 70:3; 73:4-7 (2007). The American Dental Association and American Academy of Pediatric Dentistry were also consulted. TR76:22–77:3 (2007). Plaintiffs were “incredibly fortunate to have … some of the finest minds in the country to advise us.” TR69:2-6 (2007).
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The 35 codes, however, are not the end of the story. After HHSC rate setting staff estimated the cost of doubling the 35 codes, they discovered that there would still be funds left over. TR74:7–8 (2007). After further consultation with dental organizations, Defendants proposed to provide increases of varying amounts to 13 additional dental codes. P.Ex. 350, 351 (2007). This addition makes the scope of dental services even more comprehensive and also improves its acceptability to the Texas Dental Association. TR74:7–75:2 (2007).22
According to Dr. Seale, targeting reimbursement increases to a limited number of dental services is a more effective approach than smaller across the board increases.
[W]e’re so far behind with the dental reimbursement rates. They were very, very low. And to spread … [the reimbursements] … over all the codes,…dilute[s] it so much that the … most important codes were only going to come up a small amount. And that wasn’t really going to be enough . . . incentive to bring in new providers. And by targeting … the codes that are the most important, most frequently used, we’re able to get the reimbursement rates up to a point that we believe we can attract new providers and keep existing providers. TR 76:5-15 (2007). Indeed, the Texas Dental Association ("TDA") and the Texas Academy of Pediatric Dentistry ("TAPD") both support the current proposal. DX 27; P.Ex. 352. According to the TAPD, the “fee increases for the selected codes will improve access to care for many Texas Medicaid recipients under the age of 21 and encourage increased provider participation. With increased participation from providers, a greater number of children with get the dental care they need.” Id. The Texas Dental Association agrees: “these changes in reimbursement are likely to substantially increase the number of
22 Dr. Seale notes that Defendants have been “very cooperative” concerning the structure for increases to reimbursements for dentists. TR75:17-24 (2007). “[T]hey’ve moved quickly. It’s been very encouraging.” TR75:24-25.
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dentists who will be willing to participate in Texas Medicaid.” Id; see also, TR81:17-25 (2007)(dental community “view that these changes will make an improvement”).
TDA and TAPD involvement and endorsement is important Their support may facilitate increased participation in Medicaid by dentists. TR77:6-9 (2007) (Dr. Seale).
The parties and the Court hope that the planned increases in reimbursement to dentists will make more appointments available, so class members can get preventative care and treatment. TR80:10–13 (2007). The goal is “a decrease in occurrence and severity [of dental disease] so that . . . [fewer] . . . children . . . are in pain, . . .” TR80:16–7 (2007) (Dr. Seale).
The increases to physician/other professionals and dentists described above are funded for the 2008-2009 biennium. As Commissioner Hawkins explained, "[w]hat I can answer with most certainty is that we have the authority to make the expenditures . . . one of the characteristics of the [Medicaid] program is that you develop estimates of the number of persons who might be eligible for the program. And regardless of whether you've included them in your estimates, it is an entitlement program, so we'll provide the services . . . If there is a shortfall in the actual appropriation amount, the legislature is obligated to provide that funding.” TP 144:22 – 145:13 (2007).145:11 (2007).
The settlement, however, specifically “does not address what reimbursement rates will be needed for future years after the 2008-2009 biennium.” DOCKET NO. 637; ADEQUATE PROVIDERS PROPOSAL at 4, n. 1. This permits adjustment of reimbursement rates if further increases are necessary to improve class members’ access to necessary health care.23 See, TR43:24–44:7 (Dr. Moore); TR82:1-7 (Dr. Seale)(2007).
23 The Court appreciates the legislature’s decision to increase funding in the 2008-2009 biennium and hopes that the legislature’s positive involvement will extend into the future.
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Moreover, Defendants will also conduct strategic initiatives to increase class
members’ access to services. The parties and counsel have already met to discuss initial plans concerning these initiatives.24 Although there is still much work to do, they hope
that the strategic initiatives will help to overcome any shortcomings in reimbursement
increases. Defendants will include information about the strategic initiatives including
an approximation of the number of class members served in their regular quarterly
reports to the Court.
(c) Other Aspects of Adequate Supply of Providers Remedies In addition to the improvements to reimbursements, the Provider Supply proposal
includes other provisions to improve class members’ access to care that they need. For
example, many class members receive their medical care through managed care,
including HMOs. Ensuring that the new higher reimbursement rates actually reach the
providers is therefore a consideration. P.Ex. 164 (2007). The Adequate Supply of
Providers proposal addresses this issue as well:
Because under Medicaid Managed Care the health plan, or HMO, not the Medicaid program, makes payments to doctors, special efforts must be made to ensure that the HMOs’ practices reflect the intent of the corrective action plan. In other words, to improve participation by professionals, the HMOs need to pass on the reimbursement increases to the professionals who take care of the children, and not use the increased funding for other purposes. The proposal should achieve this important goal.
Dunkelberg deposition, P.Ex. 355 ¶ 18 (2007).
Nonetheless, the Court notes that the Consent Decree and Corrective Action Order are directed toward the Defendants. It is they who must comply. 24 Dr. Moore attended the parties’ meeting to discuss the strategic initiatives. He testified that the parties are “eager to discover the best ways to improve” class members’ access to health care that they need. TR44:22-23 (2007). Dr. Seale also attended the meeting. She was skeptical at first, and was pleased and surprised by the cooperation at the meeting. TR63:7- 64:3 (2007).
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Moreover, the Adequate Supply of Health Care Providers Proposal is not limited
to reimbursement issues. For example, Defendants have already established timeliness
and distance standards for their managed care programs. The proposal allows Defendants
to revise their guidelines “only if new standards are more favorable to class members.”
DOCKET NO. 637; ADEQUATE SUPPLY OF PROVIDERS Proposal at 2. Thus, Defendants
will not change their standards to require class members to travel farther or wait longer for health care appointments than is true today.25 J.D. testified that distance standards
are very important:
The distance standards … are better than what we have now in the area my children and I live . . . Most of the doctors around [Nacogdoches] do not accept [Medicaid.] Because of that I have had to take my children as far away as Houston, Dallas and Galveston to see doctors and dentists. Sometimes it has just been to far and too hard, so I was not able to make sure they got all the care they needed.
P.Ex. 364; ¶ 6 (2007).
The proposal also contains standards to require Defendants to ensure that class
members have a choice among managed care organizations and among health care
providers of the appropriate type. As J.D. continued,
When we do not have any choice of doctors, things do not work well at all for my children. Most of the time I feel that I have no choice but to take them to the emergency room when they are sick . . . Having a choice of doctors is very important for my children . . . I have not gotten checkups for my children because I could not find a doctor that I trusted to do them.
P.Ex. 364, ¶¶ 7-8 (2007); see also, P.Ex. 362; ¶ 9 (2007)(testimony of K. C.-D.); see also,
testimony of Nicole Carroll, supra.
25 Defendants’ current standards are based on the Texas Department of Insurance standards for commercial managed care programs. Dunkelberg deposition, P.Ex. 355; ¶ 21 (2007). They require access to an age-appropriate primary care provider with an open panel within 30 miles of a class member’s residence, and access to “common” specialists and mental health providers within 75 miles.
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Dr. Moore concurs. “[T]he research evidence is clear that choice plays a big role in participation . . . [in health care] . . . [I]t’s very important that the requirements for choice be . . . here.” TR 46:21–24 (2007).
Further, the proposed Order addresses serious problems with Defendants’ lists of health care providers who are willing to take care of class members. Frew 2000, 109 F.Supp.2d at 626; see also, P.Ex. 152. (2007) (class members less than 5 years old referred to OB/GYNs); P.Ex. 154 (2007)(referrals to doctor who left town two months before). Because of the lists' inaccuracies, class members have trouble finding appropriate health care providers to take care of them. For example, K. C.-D. testified that Defendants could not “advise me regarding available doctors” near her home county. P.Ex. 362; ¶ 10 (2007).
The problem is not limited to information about doctors. “[O]ne of the major concerns that class members have is finding dentists who are accepting new patients. For that to happen, we have to have current, accurate, up-to-date lists, not just of people who are on the provider list but who are accepting new patients.” TR82:12-17 (2007) (Dr. Seale).
Moreover, inaccurate lists mean that health care providers are discouraged because they cannot find appropriate specialists to accept referrals of class members. This problem discourages some health care providers from taking care of class members, because they feel that they cannot properly discharge their responsibility to their patients for want of timely availability of specialists when they are required. Dunkelberg deposition, P.Ex. 355; ¶ 20 (2007); TR45:9-18 (2007); TR82: 8-20 (2007).
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The Adequate Supply of Health Care Providers proposal requires Defendants to improve their referral information. Dr. Moore testified that this improvement is “absolutely critical.” TR45:10 (2007). J.D. thinks that this “will make it easier for my children to get care that they need.” P.Ex. 364; ¶ 9 (2007).26
By the fall of 2007, Defendants will also start their new web-based Provider Look Up system. Provider Look Up will provide round-the-clock referral information. It will also increase the accuracy of Defendants’ information about health care providers who take care of class members, because to sign in to use the system, providers will have to update important information on a regular basis.
Also, Defendants will conduct new analyses of the Medicaid Provider Base, which will assist the parties and the Court to assess this important area. “This type of analysis has seldom before been performed in Texas Medicaid and will provide a muchneeded benchmark for measuring progress and determining where problems remain.” Dunkelberg deposition, P.Ex. 355 ¶ 21 (2007); see also, Dr. Rider supplemental deposition, P.Ex. 358; ¶ 9 (2007). In addition to showing how many professionals are actually taking new class member-patients, the studies “should show the impact of the reimbursement increases.” TR43:10 – 11 (2007). Following the studies, Defendants will develop plans to remedy shortages of each type of provider in any geographic area, if any are found. B. Health Care Provider Training Proposal:
The Health Care Provider Training Proposal contains two key provisions. First, in August 2007, Defendants will implement an on-line continuing professional education
26 As J.D. observed, “It is hard to get care that my children need when [Defendants] cannot tell me which doctors are taking Medicaid and which are not.” P.Ex. 364; ¶ 9
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program for Medicaid-enrolled health care providers, and especially those who take care of class members. The program will include sixteen training modules. This approach is “practical” and makes “consistent information easily and widely available.” Dunkelberg deposition, P.Ex. 355; ¶ 26 (2007).
Second, Defendants will begin a training program for licensed general dentists statewide to provide dental checkups for children 1 to 3 years of age. The Court hopes that this new program will improve access to dental care for this underserved group of young class members. As Dr. Seale testified, Texas has too few pediatric dentists to take care of all very young class members. General dentists, however, are often reluctant to see them because dental schools do not train them to do so. Young children “become frightened very easily and then become very uncooperative . . . [T]hat’s very off-putting to a general dentist who doesn’t have experience.” TR83:18-21 (2007).
According to Dr. Seale, “with a concerted effort,” it will be possible to train general dentists to take care of very young class members. TR 84:11-14 (2007). The procedures that general dentists would perform for very young children are “straightforward [and] fairly simple.” TR 85:25 (2007).
While there is significant need for increased access to dental care for all class members, the need is quite acute for very young class members. In FY 2006, only 119,343 out of 470,217 class members received preventive dental care during the 12th to 24th month of life. P.Ex. 30 (2007). The result is costly in terms of money and poor dental health. In both FY 2005 and 2006, more than 38,000 class members received dental care under general anesthesia, at a cost of almost $33 million in FY 2005 and more than $36 million in FY 2006. P.Ex. 9, Interrogs 41-42 (2007). This is not only expensive
(2007).
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but subjects young children to the risks inherent in the administration of general anesthesia. TR81:9-11 (2007). C. Case Management Proposal
Case management “plays a vital role in facilitating recipients’ access to needed medical, social, and educational services.” Frew 2005, 401 F.Supp.2d at 667. It is “necessary in order for some Medicaid-covered children to get all the care that they need.” P.Ex. 358; ¶ 11 (Dr. Rider). Plaintiff Ayala, of Edinburg, explained:
[A] lot of people really don’t know what to do with Medicaid and how to get what their children need, and a Case Manager would be a lot of help . . . Because of this lawsuit, a case manager . . . helped us. She helped me to learn about the transportation program and how to follow up with my children’s health care. P.Ex. 353; ¶¶ 7-8 (2007); see also, P.Ex.361; ¶ 6 (2007)(testimony of G.B.) K. C.-D. agreed: [S]pecial “out of the box” situations … need this type of support. I am responsible for a foster child who needs a nebulizer. He has been placed [with me] but he no longer has his nebulizer, which he lost the last time he was with his mother. But the Medicaid rules limit how frequently his nebulizer can be replaced. I am hopeful that improved case management will address problems like this, that do not fit the typical pattern. P.Ex. 362; ¶ 8 (2007). Indeed, according to Defendants’ survey, families who had case management “reported high satisfaction rates with [Children and Pregnant Women’s] case management.” P.Ex. 281 at 1.27 Almost 70% reported that they “wouldn’t know what to do” without it. Id.; see also, TR55:9-15 (2007). Despite its effectiveness, case management is underutilized. Frew 2000, 109 F.Supp.2d at 649; Frew 2005, 401 F.Supp.2d at 667; see also, P.Exs. 9 (Interrog. 123),
27 CPW case management is the form of case management developed in response to the Decree in this case.
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283-287, 291-293, 295, 299 (2007); see also, TR 55:20-56:2 (2007). Further, the number of enrolled and active case managers is very low. P.Exs. 289, 290, 294 (2007). The proposed case management remedy addresses this problem in several ways. First, Defendants will either contract with and/or hire a sufficient number of case managers to meet class members’ needs. Second, Defendants will seek to increase case management utilization by increasing referrals to this important service by other health care providers, in part by educating them about the nature of the service and how to make referrals. See, TR 56:3-10 (2007).28 The proposal includes mechanisms to track the success of Defendants’ efforts, including tracking of the increases in referrals, and increases in utilization by class members in Texas and in each county.
Finally, the Court hopes that a process of assessment and corrective action will eliminate problems with Defendants’ case management efforts. Since case management is “viewed as beneficial and useful by these families; but at the same time, not all the families who might benefit from it are receiving it, …. [T]his …begs for an evaluation of why that might be.” TR 55:23-56:2 (2007). D. Check Up Proposal
The issue whether class members receive “complete” checkups has been a bone of contention between the parties. This corrective action proposal requires a combination of independent studies on the completeness of check ups coupled with corrective action plans to remedy problems identified by the study. The corrective action plans are properly targeted, for example, to focus on specific managed care programs if incomplete
28 Defendants’ current system only referred 2571 class members for case management in FY 2006. P.Ex. 68 (2007) (Case Management Referrals). Another impediment to class members’ utilization of CPW case management is the lack of information about this
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check ups occur. See, Frew 2005, 401 F.Supp.2d at 683. The research/corrective action plan approach is “critical” because it will help to ensure that as much as possible is achieved in each check up encounter. It is “important to try to discover what is the completeness of the … screens during each visit.” TR47:10 – 12; 15-16 (2007). See also P.Ex. 353; ¶ 5 (2007). E. Outreach Proposal
The outreach program informs families about services and how to access them. It also provides information about the Medical Transportation Program and assistance with scheduling appointments. Despite ongoing outreach efforts, however, many class members still do not receive check ups.. . Frew 2000, 109 F.Supp.2d at 601-603; 605; Frew 2005, 401 F.Supp.2d at 648-49. As Dr. Moore testified, check up utilization “certainly has lots of room for improvement,” with only half of the class served. TR 48:21 – 49:4 (2007). In FY 2006, more than 1.5 million class members did not receive medical check ups and more than 1.5 million did not receive a dental check up. P.Ex. 30 (2007)(Class Members Who Lack Medical Check Ups or Preventive Dental Services); P.Ex. 9, Interrog. 118 and Attachment 2; Interrog 119 and Attachment 3; Interrog 120 and Attachment 4 (2007). Among class members who had Medicaid for at least seven months of the year, only one in seven obtained two dental check ups. TR79:1- 80:4 (2007).
Moreover, the percent of class members who received check ups varied considerably from county to county. TR 49:7-8 (2007). For example, in 2005, the medical checkup participation rate was only .29 (on a scale of zero to one) in Culberson
helpful program and the significant confusion that surrounds it. Frew 2000, 109 F.Supp.2d at 653; Frew 2005, 401 F.Supp.2d at 667.
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County, but .87 in Titus County. P.Ex. 33 Appendix B at 24, 30 (2007)( 2005 Medical and Dental Statewideness Report). These disparities continued into 2006. For example, in 2006, the medical check up participation rate was only 0.23 in Jeff Davis County, but it was 0.80 in Hidalgo County. P.Ex. 337 at 16, 20 (2007). There is similarly significant variation concerning dental check ups from county to county. P.Ex. 33 (dental check up report).
Underutilization of check ups is well addressed in the outreach and informing proposal. The proposal begins with a requirement for research to identify the nature of the problem. Defendants will contract for an independent evaluation of “outreach and the reasons that class members miss check ups.” OUTREACH PROPOSAL at 2. The study will evaluate a full array of outreach forms, including the use of media, intensive schoolbased programs, intensive community based programs, telephone calls following missed check ups, and written correspondence following missed check ups. TR50:21–51:9 (2007). It is intended to address basic questions about the impact of Defendants’ outreach program, TR51:12-18 (2007), such as: • whether information provided orally is accurate, appropriate, understood and whether
the recipient of the information can act on it to obtain completed check ups; • the relationship between the type of outreach and subsequent receipt of check ups; • whether outreach identifies barriers that prevent class members from getting check
ups and/or follow up care, and whether outreach helps families to overcome barriers; • what causes class members to miss check ups; • what can be done to make outreach more effective. According to Dr. Moore, “there is a national consensus . . . that these are the very questions that we need to be studying” to improve outreach. TR50:17 –19 (2007). If the study is done properly, the results will be useful to Defendants and the class, as well as nationally. TR51:21 – 52:10 (2007). Furthermore, the outreach study will “address
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racial and ethnic disparities relating to each form of outreach, and may also assess other relevant issues relating to cultural appropriateness.” OUTREACH PROPOSAL at 4.
After the first study is complete, counsel will confer to determine if corrective action is needed and, if so, what form it should take. Eighteen months later, Defendants will begin the process to initiate a second study to assess the effectiveness of the corrective action taken.
The outreach and informing proposal also includes other important tasks, such as improvements in outreach letters, improvements to the Medicaid ID card, 5 TR 171:11 to 172:12 (2005); improvements to informing about the underutilized “extra effort” referral program by Medicaid eligibility workers, which are “not widely used by the State staff,” 1TR151:17 to 152:2 (2005), and coordination of outreach messages to avoid conflicting, divergent or unnecessarily duplicative information. Defendants will also reinstate outreach reports required by Decree ¶¶60-61. F. Check Up Reports and Plans for Lagging Counties:
Since check ups are an important part of the Decree, Fairness Order at 6; Frew 2005, 401 F.Supp.2d at 641, it is important to have accurate information about class members’ utilization of them. This proposal improves Defendants’ check up reports by requiring reports based on age. Defendants’ compliance with this proposal will constitute full compliance with Decree ¶¶ 171 and 284 during the time that this Order is in effect. As standards for these studies have been the subject of contention in the past. Frew, 109 F.Supp.2d at 612-13, the Court hopes that the new revised definition of required data will eliminate future disagreements.29
29 For class members over the age of two years, Defendants will report annually the number of class members of each age who receive a medical check up. They will
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Defendants will also improve their dental check up reports to help to track Defendants’ “effectiveness in getting the children back in” for periodic dental check ups. TR86:12-13 (2007).30 Annual corrective action plans will be devised for each county or cluster of counties that lags behind the state average for medical and/or dental check ups “to encourage improved participation in each lagging county or cluster of counties.” CHECK UP REPORTS Proposal at 4. This will help enable class members throughout the state to receive these important, basic services. See E.S., TR 18:21 to 19:9 (2007).
also report the unadjusted percent of class members of each age who were enrolled for at least 90 days and received a medical check up in the immediately preceding year.
For class members under the age of two years because they are entitled to more than one medical check up in twelve months. Defendants will draw statistically valid samples of class members from birth to six months, six to twelve months, and twelve to twenty-four months. Defendants will determine a) how many medical check ups the class member should have received based on age and number of months of Medicaid eligibility, b) whether the class member received each medical check up due, and c) if not, the number of check ups that were missed. Defendants will report for each age group the number and percent of class members who a) got all medical check ups that were due, b) the number and percent who missed one check up that was due, two check ups that were due, etc. They will also report patterns or trends in missed medical check ups, if any exist. 30 They will report a) the number and percent of class members of each age who received one dental check up, and b) the number of class members of each age who are eligible for Medicaid for seven or more consecutive months., as well as the number and percent of this group who received two dental check ups.
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G.. Managed Care Proposal Defendants now implement managed care in all of Texas’ 254 counties. P.Ex.
162, 163, 165 (2007). They require many class members to receive their medical care through either HMOs or a primary care case management program (PCCM). P.Ex. 164 (2007); see Frew 2005, 401 F.Supp.2d at 669-671 for descriptions of these managed care programs.
The managed care proposal includes important standards to protect class members who receive care through Defendants’ managed care programs. As an initial matter, Defendants will include most of the proposed improvements in their next round of managed care contracts in 2007. This permits Defendants to make changes in a businesslike manner when they would normally be negotiating changes to managed care requirements. Dunkelberg deposition, P.Ex. 355; ¶ 24 (2007). Moreover, since Defendants must implement the changes in 2007, changes will be made reasonably soon.
In three areas described below, Defendants will implement a new system of rewards and sanctions for their managed care programs. For each of the three areas, financial rewards will be available up to the amount of $15 million (All Funds) per year ($45 million total).
Ms. Dunkelberg hopes that the rewards and sanctions will have a positive impact, and particularly that they “will be sufficiently vigorous that [they] cause . . . the HMOs to improve in these areas.” P.Ex. 335, ¶ 25 (2007); see also, TR 22:23 – 23:3 (2007)(Ms. Carroll).
The first area subject to rewards and sanctions is medical check ups. Some class members have had significant problems obtaining medical check ups within Defendants’
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managed care programs. Frew 2000, 109 F.Supp.2d at 622-26; Frew 2005, 401 F.Supp.2d at 678-79. Missed check ups are a serious problem that can lead to other significant problems. For example, as noted in a 2006 report prepared for Defendants by Dr. Betsy Shenkman of the Institute for Child Health Policy, University of Florida, “[p]reventive care visits that meet the American Academy of Pediatrics (AAP) periodicity schedule are associated with a decrease in avoidable inpatient admissions for infants across various racial and ethnic groups, income levels and health status.” P.Ex. 185 at 23 (2007); see also P.Ex 344 at 94 (2007); Dunkelberg deposition, P.Ex. 355; ¶ 23 (2007).
To address managed care barriers to check ups, Defendants will require their managed care organizations and PCCM to provide various annual reports about class members’ receipt of check ups. The reports will be provided by service delivery area (HMOs) and by HHSC region (PCCM). Based on these reports and the check up completeness reports mentioned above, Defendants will develop and implement rewards and sanctions for “high or low rates of check ups and especially complete check ups.” MANAGED CARE PROPOSAL at 3.
Moreover, some class members get no services at all even though they are enrolled in a managed care program. To find out why this occurs Defendants will contract for an independent, external study of “class members who do not receive any form of health care covered by Defendants’ contracts with their managed care organizations.” Corrective actions will be taken if warranted, and plans to resolve the “no care” problem may include financial rewards and sanctions. A second “no care”
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study will be conducted after implementation of any corrective action plans with emphasis on the effectiveness of the “no care” corrective action plan.
Children of migrant farmworkers (“FWCs”) have particular difficulties obtaining health care because of the confluence of their families’ often extreme poverty, their lack of education (including about health care) and related factors. Further, their mobility makes it hard to locate health care providers when needed and can prevent continuity of care. Frew 2000, 109 F.Supp.2d at 631-32; see also, P.Ex. 219 (2007).
Defendants’ managed care organizations have been unable to identify many migrant farmworker class members and have thus failed to accelerate delivery of services to this vulnerable population. Frew 2000, 109 F.Supp.2d at 632-34. This problem continues until today. P.Ex. 9, Interrog. 89; P.Ex. 220, 222 (2007).
The proposal will rectify this problem by several means. First, in 2007, Defendants will make "acceleration of services" to FWC enrollees a contract requirement. MANAGED CARE Proposal at 7. Each MCO will be required to report annually about its identification and delivery of services to this group. With these reports, Defendants will learn if each MCO is accelerating services to these class members, including by identifying and cooperating with groups that work with FWC; making appropriate, aggressive efforts to reach each identified FWC to provide timely check ups and follow up care; maintaining accurate, current lists of FWC enrollees and maintaining confidentiality of information about FWCs. Frew 2000, 109 F.Supp.2d at 634, n. 113.
Based on the reports, Defendants will develop and implement rewards and sanctions based on performance. Reports about each HMO in each region will facilitate
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recognition of good performance and identification of HMOs that perform poorly, so problems can be rectified in the geographic areas where they occur . See Frew 2005, 401 F.Supp.2d at 683.
Furthermore, Defendants will enhance the impact of the rewards and sanctions by posting timely information about them on their website. Hopefully, this will “encourage the HMOs to improve even more than would occur through the use of the rewards/sanctions alone," and making the information public "will also help families to choose the best HMO for their children.” Dunkelberg deposition, P.Ex. 355; ¶ 25 (2007).
Finally, Defendants’ MCOs will not be permitted to pass financial sanctions to their contracted health care providers “except on an individual basis…. on the basis of inadequate individual performance,” and only after efforts to collaborate with providers to improve performance. MANAGED CARE PROPOSAL at 9. This requirement should be fair to providers while also improving services to class members by facilitating improvement in services. Dunkleberg deposition, P.Ex. 355, ¶ 25 (2007). H. Prescription and Non-Prescription Medications; Medical Equipment and Supplies Proposal
Modern medicine relies increasingly on medication as a major part of treatment. TR 54:21–22 (2007). Federal Medicaid law allows State officials to implement a Preferred Drug List (PDL) program. 42 U.S.C. §1396r-8. Through a PDL, State officials may place drugs on a preferred list if they receive cost rebates from manufacturers. See description of PDL in Dunkelberg deposition, P.Ex. 355; ¶¶ 27-28 (2007).
In 2005, Defendants initiated a PDL. Under the PDL system, class members may receive non-preferred drugs that are prescribed, but only with Defendants’ prior approval. However, if prior authorization is delayed, federal law requires Defendants to provide a
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72-hour emergency allotment of non-preferred drugs so that class members are not deprived of needed medicines.. When pharmacies fail to follow this rule, class members go without emergency medications.31
Unfortunately, the PDL system remains “confusing to parents and not well understood by many health care providers, including the pharmacies that are supposed to implement it.” Dunkelberg deposition, P.Ex. 355; ¶ 29 (2007). To rectify this problem, the proposal makes several improvements to the pharmaceutical program, which will be practical and should improve class members’ access to medicines prescribed for them. First, Defendants will assist pharmacists to provide the 72-hour emergency allotments. Typically, when class members present prescriptions to be filled, pharmacy staff forward them by computer for Medicaid approval. Pharmacies receive electronic approval or denial within a matter of seconds.
Under the proposal, Defendants will improve their electronic message to pharmacies. When a medication is denied only for lack of prior authorization, the pharmacist will automatically be directed to submit a 72-hour emergency request if the prescribing doctor is not available to request prior approval. “[I]f pharmacists hear about the need to provide a 72-hour supply at the same time they hear about prescription disapprovals it will get their attention. It works in an educational type of framework,
31 For example, Ms. Carroll testified that one of her children is allergic to a generic form of a medicine but is not allergic to the name brand. She had difficulties getting prior authorization for a medicine that her child could use. TR 25:8– 11 (2007). Plaintiff Ayala also testified about problems getting medicines for her three sons, even right after surgery. “Sometimes I wouldn’t be able to get the medicine right away, and they needed it right away. The pharmacy would call me, sometimes after a couple of days, and I would have to go back to get the medicine…. Sometimes I had to buy the medicines with my own money.” P.Ex. 353; ¶ 6 (2007); see also, P.Ex. 364; ¶10 2007)(testimony of J.D.: “my children just suffered without the medicine they needed for infections and other illness.”); P.Ex. 362; ¶ 6 (2007)(testimony of K. C.-D.)
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which . . . is beneficial.” Dr. Rider supplemental deposition, P.Ex. 358; ¶ 16 (2007). This practical approach “takes advantage of existing technology resources to improve access to drugs.” Dunkelberg deposition, P.Ex. 355; ¶ 30 (2007). Hopefully, this succinct and timely information will cue pharmacists to provide the 72-hour medication.
In addition, Defendants will mail written information to each Medicaid-contracted pharmacy to clearly explain the 72-hour prescription policy, particularly as it applies to class members. Defendants will also work with the Texas Pharmacy Association (TPA) to explain the 72-hour policy to TPA members. As K. C.-D. testified:
[I]t's important . . . to educate the pharmacists about the system, so that they realize that they are going to be reimbursed . . . [I]n the past, the pharmacist did not know very much about the Medicaid system, and they weren’t willing to stick their neck out. Because of this, children had to go without their medications at times. P.Ex. 362; ¶ 7 (2007). Second, Defendants will twice analyze their contracted pharmacies’ claims history for 72-hour emergency prescriptions. Defendants will begin by identifying pharmacies that, despite high volumes of Medicaid prescriptions in classes that require prior approval, process a) no 72-hour emergency prescriptions and b) a lower than expected percent of 72-hour emergency prescriptions. Based on the review, Defendants will provide intensive, targeted education efforts to pharmacies that appear to lack knowledge of the 72-hour emergency prescription policy.32 Many doctors and other prescribers do not understand which medicines require prior approval. P.Ex. 355; ¶29 (2007)(Dunkelberg deposition). As a result, they do not
32 J.D. commented that it is important to monitor pharmacies. “[T]he Medicaid program is paying these pharmacies to follow the rules., The Medicaid people should
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know when they need to request prior approval before a class member can receive a medicine. To lessen confusion and thereby improve access to medications, Defendants will make available at no charge a Medicaid PDL prescription service to inform prescribers about medicines that require prior approval. The service will be suitable for use by internet or for download to handheld devices that prescribers use.
Barriers also prevent class members from obtaining necessary durable medical equipment. For example, some class members with diabetes have problems obtaining supplies that they need every day, such as lancets and blood testing strips. P.Ex. 65-67 (2007). Similarly, in 2006, despite following all instructions from Defendants, a foster mother could not obtain prescribed nutritional supplements for a class member who, in essence, was starving to death because of a condition known as failure to thrive. P.Ex. 62; 271 (2007). Class members have also reported problems obtaining diapers, incontinence pads and the like. Often the problem arises because the pharmacy that fills the class member's drug prescriptions is not separately contracted with Medicaid as a provider of durable medical equipment and supplies P.Ex. 361; ¶ 8 (2007).
To minimize this problem, in early 2008, Defendants will encourage all Medicaid-enrolled pharmacies to also enroll to provide durable medical equipment providers. This initiative is intended to facilitate class members’ access to durable medical equipment commonly found in pharmacies. Dunkelberg deposition, P.Ex. 355; ¶ 32 (2007).33
make sure the pharmacies really do this. Kids suffer if they do not.” P.Ex. 364, ¶ 12 (2007). 33 In the past, however, class members have had problems with other forms of durable medical equipment, such as obtaining wheelchairs and repairs to wheelchairs. Frew 2000, 109 F.Supp.2d at 630; P.Ex. 63, 64 (2007). The proposal does not directly address this type of problem. The proposed strengthening of case management, however, should
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Other initiatives set forth in the proposal include training the HHSC ombudsman's
office about the 72-hour medication policy and durable medical equipment issues and
encouraging MCOs to train their 24-hour nurse hotlines about the 72-hour medication
policy and durable medical equipment issues.
I. Medical Transportation Program Proposal Many class members simply cannot use health care services at all without
transportation assistance. Frew 2000, 109 F.Supp.2d at 592. However, the Medical
Transportation Program (MTP) has not worked well. For example, Ms. Carroll testified
that she personally has had problems with mileage reimbursement and never was
reimbursed for all of her travel when her son was hospitalized in the fall of 2006. TR
26:1–11 (2007). In her work at the Denton Federation of Families, Ms. Carroll has also
observed that approximately half of the families whose children are on Medicaid have no transportation or limited transportation (for example, the family has one car which is used
for work so the rest of the family lacks transportation during working hours.) They must
rely on the MTP to get to and from class members’ health care appointments. TR26:17 – 23 (2007).34
help; case managers should be able to help class members to obtain durable medical equipment not normally found in pharmacies. Dunkelberg deposition, P.Ex. 355, ¶ 33 (2007).
34 Similarly, G.B. testified about her grandson, who has frequent emergencies related to his psychiatric problems. Often Defendants’ transportation program cannot meet their needs when appointments are closely spaced in time. P.Ex. 361; ¶¶ 4, 5 (2007).
J.D. agreed. “If I cannot get help with medical transportation my children will just not be able to get all the health care they need. And, I know that my family is not the only one.” P.Ex. 364; ¶ 13 (2007). Indeed, “lots of people … have to go far away to take their kids to doctors or dentists that take Medicaid. So, the medical transportation program really has to work right if kids are ever going to get any care. Only rich people can pay for lots of gas for their cars right now.” P.Ex. 356; ¶ 11 (2007)(Mary Fisher).
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In response to these problems, the transportation proposal further defines the Decree’s requirements for independent evaluations to determine whether the MTP transportation program is “effective.” ¶ 223. Research will be followed by corrective action plans developed by Defendants with input from Plaintiffs. Also, the MTP will be transferring from the Texas Department of Transportation to the HHSC at the start of the new fiscal year. The Court hopes that this transfer will improve transportation assistance, which “appears to have suffered under the oversight of TxDOT.” Dunkelberg deposition, P.Ex. 355; ¶ 34 (2007). J. Toll Free Number Proposal
Defendants rely on toll free numbers to inform class members, to assist them to locate health care providers/schedule appointments, and to arrange for transportation to appointments. To achieve these purposes, calls must be answered promptly. Decree ¶ 247. The proposal addresses four of Defendants’ toll free numbers: Texas Health Steps, Managed Care Enrollment Broker, Statewide Medicaid Helpline35 and Transportation (MTP).
Improvement is certainly required. Some class members have had to endure unacceptably long waits on one or more of these toll free lines, and sometimes are “never connected to a representative.” P.Ex. 358; ¶ 18 (2007)(testimony of Dr. Rider). See also, P.Ex. 362; ¶ 10 (2007)(testimony of K.C.-D., “I had to wait 45 minutes to an hour on hold, and I was disconnected sometimes.”). Callers sometimes hang up because the wait is too long, or try to call on lunch breaks and cannot get through before they have to go back to work. TR 24:3–17 (2007). Still others, lacking a telephone, must call from
35 Defendants will implement a new toll free state wide Medicaid Helpline.
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neighbors’ phones or from “cheap cell phones that only have so many minutes on them." P.Ex.356; ¶10 (2007) (Mary Fisher).
When staff do not answer the toll-free lines, parents finally give up, and their children do not get care. P.Ex. 364; ¶ 14 (2007)(testimony of J.D.). "The proposed standards set out in this corrective action plan are badly needed to ensure that callers can reach a live human being within a reasonable amount of time." Dunkelberg deposition, P.Ex. 355; ¶ 35 (2007).
In the past, the MTP number has been the source of the most serious violations of the Decree’s toll free number standards. Frew 2000, 109 F.Supp.2d at 639-41. The MTP number continues to have significant problems, with statewide monthly abandonment rates that exceeded 30% in the first three months of 2007, and lengthy average monthly waits in queue that hovered around 7 minutes during that same time frame. P.Ex. 274, 277-80 (2007). Defendants will have nine months to remedy these problems, which is six months longer than is permitted to remedy problems with the other three toll free numbers. Given the longstanding malfunctions of the MTP toll free numbers and the expected transfer of MTP from TxDOT to Defendants, this extra time is reasonable.
Problems are not, however, limited to the MTP toll free numbers. In 2007 there was a significant decline in performance by the Texas Health Steps and Enrollment Broker toll free numbers, with abandonment rates ranging from 15-41% and average speed to answer ranging from 184–1299 seconds. P.Ex. 108 (2007).
The proposal requires: a) adequate equipment that fails only because of circumstances beyond Defendants’ control, such as bad weather; b) a monthly maximum average time of 300 seconds for each call to be answered by a live person; c) an average
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monthly wait to speak with a live person of no more than 60 seconds (after recorded messages and completion of a user selection menu); d) a maximum monthly abandonment rate not to exceed 10%; e) no more than 2% of calls to receive busy signals, disconnections or other problems that prevent the caller from reaching staff; and f) no calls may be answered by “clearing the queue,” which means callers are asked to call back later or told that staff will return the call.36 P.Ex. 364; ¶ 14 (2007); see also, TR24:18-23 (Nicole Carroll)(2007); P Ex. 364; ¶ 14 (2007). K. Health Outcomes Measures and Dental Assessment Proposal
Health outcomes measures serve at least two purposes. They measure “important aspects of the population’s health.” ¶ 289. They are also a proxy to indicate “whether [class members] receive the full range of services that they need and are entitled to receive.” ¶ 288In Dr. Moore’s opinion, outcomes measures assessment is important. It should show if Defendants’ efforts are making a difference in class members’ health, instead of just counting the number of services provided. TR56:11-20 (2007).
The outcomes measures proposal requires Defendants to present approximately 12 proposed outcome measures for Plaintiffs’ approval and comment, and thereafter report the proposed measures and study methodologies in their quarterly report if the parties agree. Within four months of completion of the first outcome measure study, Defendants are to propose corrective action plans and outcome goals, and Plaintiffs are to respond with comments. The corrective action plans will address methods to achieve the targeted goals for each indicator. “[S]electing and keeping track of health outcomes
36 If Defendants contract for toll free number service, their new, amended and/or renewed contracts will include these standards. In addition to regular quarterly reports, if any toll free number violates the standards for three months in a row, Defendants will provide daily reports about that toll free number.
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measures … will be challenging, but, it needs to be done. It will be worth the time and

effort if the methodology for doing it is valid.” P.Ex. 358; ¶ 14 (2007)(Dr. Rider).

The proposal also requires the parties to cooperate to develop plans for a

professional and valid assessment of class members’ dental health. The dental study will

evaluate the number and percent of class members who “1) have no history of cavities, 2)

have untreated cavities, 3) require urgent dental care for pain, infection or bleeding and 4)

require dental care that may potentially include either inpatient hospitalization or

outpatient treatment under general anesthesia.” OUTCOMES MEASURES PROPOSAL at 4.

After completion of the dental study, the parties will cooperatively develop a

dental corrective action plan. A second study will follow, as well as a second corrective

action plan. According to Dr. Seale, this is an “excellent” approach that assesses “the

status of that population you’re going to treat.” TR87:9; 87:11-12 (2007).

6.

THE OPINIONS OF THE CLASS COUNSEL, CLASS REPRESENTATIVES AND ABSENT

CLASS MEMBERS.

Plaintiffs’ lead counsel asked the Court to enter the Corrective Action Order and

urged that it is fair, reasonable and adequate. TR 8:17-19; 8:24-25, 167, 175 (2007). She

stated that the “relief proposed will provide significant advantages to the class and will

help them to receive the care that they need.” TR170 (2007).

Nicole Carroll, the mother of four class members, testified that the proposed Order is fair, reasonable and adequate. TR27:21 – 24 (2007).37

37 In particular, she testified in favor of the proposals concerning case management, check up reports/lagging counties, medical check up completeness, outreach, managed care, reimbursement increases to improve the supply of professionals to take care of class members, toll free number standards, medications and transportation.
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K.C.-D. testified in person before this Court in 2005 and by deposition in 2007. 5TR 173:23 et seq. (2005); P.Ex. 362; ¶ 2 (2007). She is a foster mother who frequently cares for class members, and had two class members in her care as foster children at the time of the hearing. Her two sons also have Medicaid and are class members. Id.; ¶¶1. She testified that “the proposals as a whole are fair, reasonable and adequate. Several of the specific corrective actions will directly address some of the problems I have experienced. I’m very impressed with all of the proposed changes.”38 Id.; ¶¶ 4, 5.
Present Plaintiff Mary Ayala and former Plaintiff Mary Fisher likewise testified via deposition that is they believe the proposed settlement is fair, reasonable, and adequate. P.Exs. 353, ¶ 3 and 356¶¶ 6, 13 (2007). Current class member parent/guardians G.B. and J.D. agreed. See P.Exs. 361 ¶ 3; 364, ¶ 5 (2007). Each commented on particular proposals they believed would benefit their children/grandchildren.
Finally, mother J.D. observed that “the agreement is fair, reasonable and adequate. It may not solve all the problems, but I think it will help a lot.” P.Ex. 364; ¶5 (2007).39
NOTICE TO CLASS AND COMMENTS OF ABSENT CLASS MEMBERS The Court received 67 written comments from class members as a result of the Notice that the Court ordered. DOCKET NO.635. See P.Ex. 335 (2007)(Summary Chart of Class Members Written Comments (2007) and P.Ex. 359 (2007)(sealed copies of
38 K. C.-D. specifically commented in favor of the proposals concerning medication and medical equipment, case management, increased reimbursement to increase the supply of doctors, outreach, toll free numbers and check ups. Id. (throughout). 39 As described above, various non-class member witnesses agreed that the proposed settlement is “fair, reasonable and adequate.” Dr. Clark; P.Ex. 354;¶7 (2007); Ms.
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comments).40 These comments followed Notice that the Court ordered on April 16, 2007. DOCKET NO. 635. Defendants assured the Court that notice was provided as the Court required. P.Ex. 331 (2007); See also, P.Ex. 332, 333, 334 (2007)(copies of the notice).
Defendants mailed written notice to each class member with the June, 2007 Medicaid ID cards, using notice language approved by the Court. The notice informed class members that they could submit written comments to the Court, to be postmarked no later than July 2, 2007. The notice also explained that class members could view the proposed Corrective Action Orders in English or Spanish. The proposal was posted on the Court’s website, Defendants’ website and in each of Defendants’ eligibility offices. DOCKET NO. 641; P.Ex. 331 (2007).
As directed by the Court-approved notice, class members sent written comments to Ms. Zinn. Every day, her office date stamped and logged them into P.Ex. 335; 359 (2007). Ms. Zinn mailed written responses to class members who requested further information after they received the notice. The date and nature of responses are noted in P.Ex. 335 (2007). Further, if a class member required assistance, Ms. Zinn forwarded the written request to Defendants’ counsel for Defendants’ attention and action.
Class members did not file any written opposition to the proposed Order. Indeed, the comments reflected curiosity about the case; most of the comments simply requested further information.. Several reported problems or issues related to this case, such as: • Transportation problems (# 2, 66)
Dunkelberg, P.Ex.355;. ¶4 (2007); Ms. Fisher, P.Ex. 356; ¶ 6 (2007); Dr. Moore, TR33:9-11 (2007); Dr. Rider, P.Ex. 358; ¶ 7 (2007); Dr. Seale, TR66:8-10 (2007). 40 Comments 66 and 67 were not postmarked by the July 2, 2007 deadline. DOCKET NO. 635, referring to Notice proposed in Joint Brief Concerning Notice. DOCKET NO. 634. The Court considers them because they were received by Plaintiffs’ counsel before the
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• High medical bills (# 13) • Lack of knowledge about EPSDT (# 12, 30) • Children’s illnesses (# 32, 44, 66) • Check ups (# 7, 26, 38, 41) • Dental care (delays, access problems) (# 7, 50, 66) • Medication access (# 60) • Class members’ receipt of care (# 20, 31, 61)41
Ms. Zinn informed the Court that she received several phone calls about the case from class members or their parents. Only one opposed the proposed Order because of the length of time until there could be relief. TR 4:3 – 16; 174 (2007)
Admittedly, it will take some time for class members to see the benefits of some parts of the Order, in particular, the parts that require research prior to corrective action plans. Nonetheless, the proposed Order is fair, reasonable and adequate despite the delays resulting from the studies. First, Defendants will implement important aspects of relief in the very near future. For example, they are already well underway toward implementing reimbursement increases to encourage more professionals to take care of class members. They will soon implement their new computerized information system to advise physicians about which medications require prior approval. Moreover, Defendants’ on-line professional education program will be in place by August, 2007.
July 9, 2007 hearing date. Also, since there are only two tardy comments, and they are both short, it is not a burden for the Court to consider them. 41 Two comments are about problems with qualifying for Medicaid. Numbers 36, 47/62 (same person). This case does not address problems with Medicaid eligibility. It addresses problems with services for children who have already qualified for Medicaid.
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Furthermore, as Dr. Moore and Dr. Seale testified, the researchevaluation/corrective action plan process is impressive. Ultimately it will benefit class members, if properly implemented, by strengthening Defendants’ programs for the class.
Finally, Nicole Carroll testified that although she was initially worried about the length of time required to see improvement, “the sooner we get started implementing this and starting the studies, the sooner we’ll get to some actual, real good changes . . . And there are parts of it that are going to be implemented fairly soon as well. So . . . overall it’s a very good, solid plan that’s going to have some real changes to it.” TR27:10 – 20 (2007).
CONCLUSIONS OF LAW By definition, settlements are the product of give and take. In the process, parties make concessions and in doing so, give up relief that they may have sought in exchange for other relief that is agreeable to both sides. Reed, 703 F.2d at 174. As a result, courts do not look for perfection when deciding whether to approve settlements in class actions. Instead, this Court must decide whether the proposed Corrective Action Order is fair, reasonable and adequate. F.R.Civ.P 23(e)(1)(C). Despite the shortcomings mentioned above, this Court has no hesitation in reaching the decision that the proposed Corrective Action Order surely meets this standard. Above, the Court has already addressed the factors the favor this determination. To reiterate, however, as a matter of law, Ayers’ six factors all weigh in favor of this Court’s entry of the Corrective Action Order: 1. There was no fraud or collusion behind the settlement;
56

Case 3:93-cv-00065-RAS Document 657-2 Filed 08/10/07 Page 57 of 58 PageID #: 17397
2. Absent settlement, the litigation would have continued to be complex, expensive, and likely of long duration before the class received relief; 3. The stage of the proceedings is that the Decree has been in effect for more than ten years. This Court found Defendants in violation of the Decree in 2000 and again in 2005. Frew 2000, Frew 2005, 401 F.Supp.2d at 684-85. This proposed settlement represents the first significant cessation of hostilities between the parties since they jointly urged entry of the Decree in 1995.
Also, the stage of proceedings, combined with the amount of discovery, helps to convince the Court to approve the settlement. “The several [hearings] and appeals that have already occurred in this case have largely resolved the controlling legal issues. Thus, the parties and the district court possess ample information with which to evaluate the merits of the competing positions.” Ayers, 358 F.3d at 369.
Further, the amount of discovery completed certainly supports approval of the Order. The Court is confident that class counsel are very familiar with the circumstances and facts of this case, and that they were skilled in their negotiations in these proceedings. The Court is sure that Plaintiffs’ counsel knew enough to make good decisions concerning the needs of absent class members and whether or not the proposed Order would meet those needs properly. 4. Plaintiffs and the class were quite likely to prevail on the merits of Defendants’ decree violations, given Defendants’ concession that they had lost and the affirmance of Court’s decisions in 2000 and 2005. Nonetheless, Plaintiffs’ success was less certain on remedial issues, particularly since the Court should defer to Defendants’ reasoned judgment. Milliken, 433 U.S. at 280-81.
57

Case 3:93-cv-00065-RAS Document 657-2 Filed 08/10/07 Page 58 of 58 PageID #: 17398 5. Regarding the range of possible recovery, had the Court taken evidence in a disputed hearing in April, 2007, it is unlikely the Court could have devised a better, more practical remedy than the proposed Order currently at issue. This process certainly would have taken more time, contrary to the interests of the class. 6. The opinions of the class counsel, class representatives and absent class members favor the adoption of the proposed Order. Ayers, 358 F.3d at 369. After so many years of contention, the Court is impressed by the Parties’ cooperative efforts, which are embodied in the Corrective Action Order. The Court concludes that the proposed settlement is fair, reasonable and adequate..
58

 
 Case 3:93-cv-00065-RAS Document 637-2 Filed 04/27/07 Page 1 of 7 PageID #: 15779

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
PARIS DIVISION

LINDA FREW, et al., Plaintiffs,
v.
ALBERT HAWKINS, et al., Defendants.

§

§

§

§

CIVIL ACTION NO. 3:93CV65

§

SENIOR JUDGE WILLIAM

§

WAYNE JUSTICE

§

CORRECTIVE ACTION ORDER: CASE MANAGEMENT
Decree References: ¶ 248: “EPSDT programs must provide case management to each recipient if needed. Since case management is a service that Medicaid programs may cover, 42 U.S.C. §§1396d(a)(19); 1396n(g), Medicaid programs must cover it for EPSDT recipients if medically necessary. 42 U.S.C. §1396d(r).” ¶ 264: “By January 31, 1996, the parties will complete a case management plan for the EPSDT program. Case management includes arrangements for the child and the family which are needed to meet the child’s health care needs. The plan will make sufficient case management available in every county or cluster of counties where few recipients reside…” ¶ 265: “Among other issues, the plan will address methods to encourage the acceptance of case management by recipients and providers…” ¶ 266: “The plan will also address the relationship between case management and managed care organizations. All EPSDT recipients, including those in managed care, are entitled to the full range of case management services when medically needed.”

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Exhibit 1

Case 3:93-cv-00065-RAS Document 637-2 Filed 04/27/07 Page 2 of 7 PageID #: 15780

¶ 267: “In addition, the plan will address the proper role of case managers. The role is to help recipients to make and effectuate their own choices about their health care and related issues. The role is not to restrict recipients’ choices in this realm.” ¶ 268: “The plan will also address case management for the children of migrant and seasonal farmworkers and how best to provide case management to that population.” ¶ 269: “Finally, the plan will address the coordination of case management services provided by the various agencies that serve EPSDT recipients. Coordination will be achieved in a manner that

permits recipients to choose their case managers.” ¶ 270: “By September 1, 1996, Defendants will finalize medical case management regulations and implement the program.” See also Decree ¶ 2, 3, 250-63. Citation for Finding of Decree Violations: Frew, 109 F.Supp.2d at 646-654; 401 F. Supp. 2d at 667. IT IS ORDERED: • Defendants will provide case management services to all class members who need and want these services. Defendants will recruit and approve Children and Pregnant Women (“CPW”) providers and/or hire and assign staff in numbers sufficient to provide case management services to any class member who has an unmet need, meets eligibility requirements, and wants case management services. • Defendants will determine and implement effective methods for informing health care

providers who serve class members about the availability and benefits of case management. Health care providers must be informed about: how and where to refer patients to the CPW Program for more information or an eligibility determination; and how and where to report

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Case 3:93-cv-00065-RAS Document 637-2 Filed 04/27/07 Page 3 of 7 PageID #: 15781

problems with referrals of class members. Defendants may study and determine effective methods for educating and informing providers as part of the comprehensive study to be conducted under the Outreach and Informing CAP. Among the methods Defendants may use to inform providers is through coordination with provider groups such as Texas Medical Association and county medical societies. Evidence that Defendants are effective in informing health care providers about case management services may be reflected in an increase in health care provider referrals for CPW case management.

• The results of the study currently being conducted by Navigant Consulting will be shared with Plaintiffs’ counsel within three months of the completion of the Navigant Consulting study. Within twelve months of the completion of the Navigant Consulting study, Defendants will provide a written assessment to Plaintiffs’ counsel (“program assessment”) detailing the changes made to the case management program in response to the Navigant Consulting study. If any case management issues identified in the Consent Decree remain unresolved at that time, Plaintiffs’ counsel will, within two months of receipt of the program assessment, notify Defendants of Plaintiffs’ request for an independent, external evaluation of the remaining unanswered questions regarding the case management program (“Case Management Study”). • If Plaintiffs request a Case Management Study, Defendants will contract for an independent, external study of any or all of the following topics, to the extent they remain unresolved following the Navigant Consulting study: 1) a statistically valid estimate of the number and percent of class members who have an unmet need, meet eligibility requirements, and want CPW

case management; 2) whether there are barriers that prevent class members who need CPW case management from getting it and, if so, what they are; 3) whether there are barriers that prevent class members from getting enough CPW case management to fully meet their needs, and, if so,

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what they are; 4) whether there are barriers that prevent enrollment of CPW case managers, and, if so, what they are; 5) whether there are barriers that prevent continued participation of CPW case managers, and, if so, what they are; and 6) methods to address inappropriate use and potential duplication of case management services without depriving class members of the full extent of case management that they need. • Defendants will arrange for this study as expeditiously as possible while complying with state and federal law concerning contracts of this type. The study will use professionally valid

methods of assessment. The Request for Proposal (“RFP”) specifications will include parameters for prospective independent evaluators to use in proposing independent, unbiased, and statistically valid methodologies to conduct the study described in this Corrective Action Order. If this study is to be done, Defendants will attempt to retain the Institute for Child Health Policy (ICHP) to assist in the preparation of a draft RFP for an independent evaluator to conduct the study. • The specifications will emphasize the independence of the evaluator in assessing the areas of study described in this Corrective Action Order. The independent evaluator should have demonstrated expertise in the particular area of study as evidenced by published studies by either the research teams/organization or principal investigator in peer refereed journals. Defendants will assure that the study RFP and other solicitation documents (including Requests for Information, if any) are provided to Plaintiffs’ counsel in draft form for review and comment. Plaintiffs’ counsel will execute non-disclosure certifications prior to receipt of non-public

procurement-related materials and will likewise sign conflict of interest statements of the type required of project and management personnel under agency policy and state law. Should Plaintiffs wish to utilize consultants to review any documentation, the consultants will also

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execute non-disclosure and conflicts statements prior to receipt of the non-public procurementrelated materials. Any consultant to whom Plaintiffs’ counsel provide copies of non-public procurement-related materials will be prohibited from responding to any RFP for which they have assisted Plaintiffs. Plaintiffs must provide comments to the solicitation documents within fifteen business days of the transmission of the document(s). Defendants may accept or reject suggestions. After Defendants respond to Plaintiffs’ comments about the draft RFP and other solicitation documents, Plaintiffs will have ten days to indicate whether they agree that the RFP

meets the requirements of this Order. If they agree it does, they may offer suggestions. Defendants may accept or reject the suggestions. If the parties cannot agree on whether the RFP meets the requirements of this Order, the dispute will be resolved by the Court upon motion to be filed by either party. • Defendants will conduct any procurement for independent evaluation services on a competitive basis in accordance with state and federal requirements and Defendants’ policies regarding competitive procurements. Defendants will be responsible for reviewing the qualifications of all prospective evaluators, evaluating all proposals, and selecting the best qualified evaluator or evaluators whose proposal(s) best meet the requirements of the RFP and supply best value. Plaintiffs may review and comment on all proposals that Defendants receive, but Defendants will make the selection. • Defendants will provide all required information to the independent evaluator(s) on a timely basis, in usable form, and in a manner that protects the privacy of class members and

confidentiality of information in compliance with state and federal law, cooperate with the independent evaluator(s) and make timely payment to them for services properly and timely rendered, as required by the Court’s order or Defendants’ agreement with the evaluator(s).

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Defendants will establish a table of contract deliverables in the RFP. Defendants will provide Plaintiffs’ counsel with copies of each deliverable within ten business days. If Plaintiffs’ counsel have comments or questions on contract deliverables, then those comment or questions must be received by Defendants within fifteen business days of the date of transmission of the contract deliverable to Plaintiffs’ counsel. Completed evaluations will be provided to the Court as completed by the evaluator(s), without editing or changes by Plaintiffs’ counsel, Defendants or Defendants’ counsel, or anyone acting on their behalf.

• Within three months of completion of the first Case Management Study, Defendants will present to Plaintiffs a proposal to address any issues identified in the study that necessitate corrective action and are within the scope of Defendants’ obligations under the Consent Decree. Plaintiffs’ counsel will have an opportunity to present proposals for the corrective action plan. If the parties cannot agree on a corrective action plan within 90 days of Plaintiffs’ receipt of Defendants’ corrective action plan proposal, the Court will resolve the dispute by motion filed by either party. Once the terms of the corrective action plan are determined, Defendants will implement them as expeditiously as possible while complying with all state and federal laws concerning any actions the corrective action plans require. • If any case management issues identified in the Consent Decree remain unresolved after completion of the first Case Management Study and subsequent corrective action plan, Defendants will conduct a second study of the case management program, with an emphasis on examining the effectiveness of the new corrective action plan. Arrangements for and the conduct

of the second study will be according to the procedures described above. Defendants will present the results of their second study to the Court and to Plaintiffs no later than 36 months after completion of the first report.

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• Defendants will report quarterly and annual data about the number and percent of class members who receive case management in Texas and in each county. Reports will include number and percent of class members who receive targeted forms of case management (such as for the blind, mental health/mental retardation clients, etc.) and separate numbers and percents of class members who receive CPW case management. Reports will begin within six months of entry of the corrective action plan Order, and will be included in Defendants’ regular quarterly reports to the Court. • When the required studies are complete, counsel will confer to determine what further action, if any, is required. Counsel will begin to confer no later than 30 days following completion of the required studies (“completion”). If the parties agree, they will so report to the Court within 120 days of completion. If the parties cannot agree within 90 days of completion, the dispute will be resolved by the Court. If the parties cannot agree, either party may file a motion within 30 days of completion of discussions among counsel.

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 Case 3:93-cv-00065-RAS Document 637-3 Filed 04/27/07 Page 1 of 5 PageID #: 15786

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
PARIS DIVISION

LINDA FREW, et al., Plaintiffs,
v.
ALBERT HAWKINS, et al., Defendants.

§

§

§

§

CIVIL ACTION NO. 3:93CV65

§

SENIOR JUDGE WILLIAM

§

WAYNE JUSTICE

§

CORRECTIVE ACTION ORDER: CHECK UP REPORTS AND PLANS FOR LAGGING COUNTIES Decree References: ¶ 171: “…by September 30, 1996, Defendants will prepare a report of the number and percent of recipients who receive 1 dental check up/year and 2 dental check ups/year.” ¶ 212: Defendants will present a Memorandum of Understanding that “establish[es] a method to report the number and percent of EPSDT recipients under the supervision of TDPRS [now, Texas Department of State Health Services] who receive all of their medical and dental check ups when due….” ¶ 283: “Method to Report Check Ups: First, Defendants report EPSDT participation statistics to the federal government every year on the HCFA Form 416 [now CMS Form 416]. The HCFA Form 416 uses calculations to approximate the number of recipients who receive EPSDT medical check ups.” ¶ 284: “Every year from 1996 through 1999, Defendants will also report to Plaintiffs the number and percent of recipients who receive all of their scheduled medical check ups. They will further report the number and percent of recipients who receive all of their scheduled dental check ups. Defendants will provide these reports to Plaintiffs no later than December 31 of each year.”

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Exhibit 2

Case 3:93-cv-00065-RAS Document 637-3 Filed 04/27/07 Page 2 of 5 PageID #: 15787
¶ 280: Defendants will complete a statewideness analysis every year by March 30. Defendants will identify the counties or county clusters that lag behind the state average…for medical and/or dental check ups… ¶ 281: Each year, Defendants will develop a corrective action plan for those counties that lag behind so that participation in those counties improves. See also ¶ 172, 191, 199, 210-11, 204-09, 271-79. Citation for Finding of Decree Violation: Frew, 109 F.Supp.2d at 612 (¶284); 109 F.Supp.2d at 613 (¶212); 109 F.Supp.2d at 614-616 (¶¶280-81): 401 F. Supp. 2d at 685 IT IS ORDERED: Medical Check Ups • Class members above the age of two years qualify for medical check ups immediately upon qualifying for Medicaid benefits. Further, all class members in Defendants’ managed care programs qualify for medical check ups within 90 days of enrollment in managed care. See Decree ¶192. • For class members aged two and over, Defendants will report: 1) the number of class members of each age (two years, three years, four years, etc.) who were enrolled for a minimum of 90 days; 2) the unduplicated count of class members of each age who received a medical check up; and 3) the unadjusted percent of class members of each age who were enrolled for at least 90 days and received a medical check up during the immediately preceding year. This information will be provided on a statewide basis. If Defendants choose, they may also provide it on a regional or county basis. Defendants will repeat this study annually and provide the results in their July quarterly report to the Court, in 2008 through 2011.

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• No later than 12 months after entry of the corrective action plan Order, Defendants will also report on receipt of medical check ups by class members under the age of 2 years. At their option, Defendants’ Research and Evaluation staff may provide these reports. For this report, Defendants will draw a statistically valid representative sample of class members: 1) from birth to 6 months; 2) from 6 to 12 months; and 3) from 12 – 24 months. Defendants may exclude class members who qualify for Medicaid only through the spend down program. Within each age group, Defendants will determine for each individual class member in the sample: a) how many medical check ups the class member was qualified to receive based on the class member’s age and the number of months of Medicaid eligibility; b) whether the class member received each medical check up that was due; and c) if not, the number of medical check ups that were missed. For each age group, Defendants will report the number and percent of class members within each sample who: a) received all medical check ups that were due; and b) the number and percent who missed one medical check up that was due, two medical check ups that were due, three medical check ups that were due, etc. Defendants will also report if there are any patterns or trends in missed medical check ups, for example, the six-month medical check up is missed most often. Defendants will repeat this study annually and provide the results in their July quarterly reports for 2008 through 2011. Dental Check Ups • Each class member beginning at the age of 12 months is qualified for routine dental check ups every six months. Subsequent routine dental check ups for class members over the age of 12 months who are enrolled in Medicaid for more than six months, are based on the date of their previous dental check up services. In order for the class member to qualify for subsequent dental

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check ups, generally there must be at least 180 days between each date of service for dental check up services. • For class members aged 24 months and over, Defendants will report for the preceding year: 1) the number of class members of each age (1 year old, 2 years old, 3 years old, etc.), the unduplicated count of class members of each age who received 1 dental check up, the percent of class members of each age who received one dental check up; and 2) the unduplicated count of class members of each age whose Medicaid eligibility exceeds seven (7) months, the unduplicated count of class members of each age within this group who received two dental check ups and the percent of class members of each age within this group who received two dental check ups. Defendants will repeat this study annually from 2008 through 2011 and will provide the results each year in their July quarterly report to the Court. • Defendants will provide their medical and dental statewideness reports annually in their July quarterly report to the Court. • Defendants will develop and provide a corrective action plan for each county or cluster of counties that lags behind the state average for medical and/or dental checkups. The plan will specify the activities that will be implemented to encourage improved participation in each lagging county or cluster of counties. The plans will be provided annually from 2008 through 2011 as an exhibit to Defendants’ October quarterly monitoring report. • From the date of entry of the corrective action orders (“order entry date”) until the end of 2011, Defendants’ compliance with this corrective action plan will constitute full compliance with the requirements of paragraphs 171 and 284 of the consent decree and no additional or different reports presently described by those paragraphs will be required in addition to the reports required herein.

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• Beginning four years from the date of entry of the corrective action orders (“order entry date”), counsel will confer to determine what further action, if any, is required. If the parties agree, they will so report to the Court within 120 days following the fourth anniversary of the order entry date. If the parties cannot agree within 90 days of the fourth anniversary of the order entry date, the dispute will be resolved by the Court. If the parties cannot agree, either party may file a motion within 30 days of the completion of discussion among counsel.

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 Case 3:93-cv-00065-RAS Document 637-4 Filed 04/27/07 Page 1 of 6 PageID #: 15791

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
PARIS DIVISION

LINDA FREW, et al., Plaintiffs,
v.
ALBERT HAWKINS, et al., Defendants.

§

§

§

§

CIVIL ACTION NO. 3:93CV65

§

SENIOR JUDGE WILLIAM

§

WAYNE JUSTICE

§

CORRECTIVE ACTION ORDER: CHECK UPS

Decree References:

¶ 2: “EPSDT is intended to provide comprehensive, timely and cost effective health services to

indigent children and teenagers who qualify for Medicaid benefits. Check ups are the cornerstone

of the program. They assess recipients’ health, provide preventive care and counseling

(anticipatory guidance) and make referrals for other needed diagnosis and treatment. 42 U.S.C.

§§1396a(a)(43); 1396d(r). Recipients are entitled to both medical and dental check ups on a

regular schedule.”

¶ 143: “Defendants must provide periodic dental check ups …to…maintain dental health for

EPSDT recipients.”

¶ 170: “Each recipient is supposed to receive a dental check up every 6 months, starting at 1

year.”

¶ 190: “EPSDT recipients served by managed care organizations are entitled to timely receipt of

the full range of EPSDT services, including but not limited to medical and dental check ups.

¶ 192: “TDH [now TxH&HSC] will assure by various means that managed care organizations

provide medical and dental check ups to newly enrolled recipients no later than 90 days after

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Exhibit 3

Case 3:93-cv-00065-RAS Document 637-4 Filed 04/27/07 Page 2 of 6 PageID #: 15792

enrollment except when recipients knowingly and voluntarily decline or refuse services… TDH [now TxH&HSC] will also assure medical and dental check ups in a timely manner to all recipients.” ¶¶211, 212: “Many children under TDPRS supervision are EPSDT recipients. To provide needed services for them, the parties agree and the Court orders: TDH and TDPRS will present a Memorandum of Understanding for Plaintiffs’ approval by August 31, 1995 and to the Court by October 1, 1995. The Memorandum of Understanding will… assure that all EPSDT recipients under the supervision of TDPRS receive all medical and dental check ups when due.” See also Decree ¶¶ 16, 144-169, 172, 184-89, 197, 200-09. Citation for Finding of Decree Violation: Frew, 109 F.Supp.2d at 605-613; 401 F. Supp. 2d at 641-656. IT IS ORDERED: • Defendants’ decisions about how to implement federally required checkup elements must be made after consultation with recognized medical and dental professional organizations involved in child health care. • Defendants will contract for an independent, external study of medical check up completeness. They will arrange for this study as expeditiously as possible while complying with state and federal law concerning contracts of this type. The study will use professionally valid methods of assessment. The Request for Proposal (“RFP”) specifications will include parameters for prospective independent evaluators to use in proposing independent, unbiased, and statistically valid methodologies to conduct the study described in this Corrective Action Order.

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• The specifications will emphasize the independence of the evaluator in assessing the areas of

study described in this Corrective Action Order. The independent evaluator should have

demonstrated expertise in the particular area of study as evidenced by published studies by either

the research teams/organization or principal investigator in peer refereed journals. Defendants

will assure that the study RFP and other solicitation documents (including Requests for

Information, if any) are provided to Plaintiffs’ counsel in draft form for review and comment.

Plaintiffs’ counsel will execute non-disclosure certifications prior to receipt of non-public

procurement-related materials and will likewise sign conflict of interest statements of the type

required of project and management personnel under agency policy and state law. Should

Plaintiffs wish to utilize consultants to review any documentation, the consultants will also

execute non-disclosure and conflicts statements prior to receipt of the non-public procurement-

related materials. Any consultant to whom Plaintiffs’ counsel provide copies of non-public

procurement-related materials will be prohibited from responding to any RFP for which they

have assisted Plaintiffs. Plaintiffs must provide comments to the solicitation documents within

fifteen business days of the transmission of the document(s). Defendants may accept or reject

suggestions. After Defendants respond to Plaintiffs’ comments about the draft RFP and other

solicitation documents, Plaintiffs will have ten days to indicate whether they agree that the RFP

meets the requirements of this Order. If they agree it does, they may offer suggestions.

Defendants may accept or reject the suggestions. If the parties cannot agree on whether the RFP

meets the requirements of this Order, the dispute will be resolved by the Court upon motion to be

filed by either party.

• Defendants will conduct any procurement for independent evaluation services on a

competitive basis in accordance with state and federal requirements and Defendants’ policies

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regarding competitive procurements. Defendants will be responsible for reviewing the

qualifications of all prospective evaluators, evaluating all proposals, and selecting the best

qualified evaluator or evaluators whose proposal(s) best meet the requirements of the RFP and

supply best value. Plaintiffs may review and comment on all proposals that Defendants receive,

but Defendants will make the selection.

• Defendants will provide all required information to the independent evaluator(s) on a timely

basis, in usable form, and in a manner that protects the privacy of class members and

confidentiality of information in compliance with state and federal law, cooperate with the

independent evaluator(s) and make timely payment to them for services properly and timely

rendered, as required by the Court’s order or Defendants’ agreement with the evaluator(s).

Defendants will establish a table of contract deliverables in the RFP. Defendants will provide

Plaintiffs’ counsel with copies of each deliverable within ten business days. If Plaintiffs’ counsel

have comments or questions on contract deliverables, then those comment or questions must be

received by Defendants within fifteen business days of the date of transmission of the contract

deliverable to Plaintiffs’ counsel. Completed evaluations will be provided to the Court as

completed by the evaluator(s), without editing or changes by Plaintiffs’ counsel, Defendants or

Defendants’ counsel, or anyone acting on their behalf.

• Defendants will provide their first medical check up completeness study results to the Court

and Plaintiffs within one month of receipt. They will provide the results of the second study

within 36 months of completion of the first report.

• The first medical check up completeness study will review a statistically valid sample of

class members’ medical records to determine: a) the percent of check ups in which all of the

five federally mandated elements set forth at 42 U.S.C. 1396d(4)(1)(B)(i)-(v) (“elements”) are

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documented; and b) for check-ups lacking documentation of one or more of these five elements,

which of these elements are most commonly missed or not documented. The study will also

assess the reasons that check up elements are most commonly missed or not documented.

• Defendants will include in this study class members who are enrolled in managed care

(HMOs and PCCM) and class members who are not enrolled in managed care, from all parts of

the state. The sample of records will be large enough to provide statistically valid comparisons

among the various delivery systems and the various plans, including PCCM in each service

delivery area.

• Adequate review of class members’ medical records is essential to assessing Decree

compliance. But, unnecessarily duplicative record reviews may hinder accomplishment of the

Decree’s goals. To avoid unnecessarily duplicative medical record reviews, Defendants will

encourage managed care organizations and all other contractors conducting reviews of class

members’ medical records to coordinate effectively. Coordination may include, but is not limited

to, requiring that other reviewers under the control of Texas Health and Human Services

Commission use records acquired through the independent study required by this CAP rather

than unnecessarily requesting providers’ medical records for their own purposes.

• If the first study shows that check ups are most commonly incomplete because they lack

documentation of one specific element (or two specific elements, etc.), Defendants at their option

may limit the second study to those commonly missing elements. In all other regards,

arrangements for and the conduct of the second study will be according to the procedures

described above. If fewer than 80% of check ups are complete in any managed care organization

or PCCM (by service delivery area), Defendants will develop and implement a targeted

corrective action plan to improve the rate of check up completeness for that managed care

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organization or PCCM (by service delivery area). If needed, the plan will include: efforts to train health care providers who conduct Texas Health Steps check ups, to emphasize the elements of medical check ups, their importance, and proper documentation. These efforts include Defendants’ on-line training, which has already begun. Specifically, the overview module concerning check up elements will be in operation no later than August 2007. When the two studies are complete, counsel will confer to determine what further action, if any, is required. Counsel will begin to confer no later than 30 days following completion of the second study. If the parties agree, they will so report to the Court within 120 days of completion of the second study. If the parties cannot agree within 90 days of completion of the study, the dispute will be resolved by the Court upon motion to be filed by either party. If the parties cannot agree, either party may file its motion within 30 days of completion of discussions among counsel.

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
PARIS DIVISION

LINDA FREW, et al., Plaintiffs,
v.
ALBERT HAWKINS, et al., Defendants.

§

§

§

§

CIVIL ACTION NO. 3:93CV65

§

SENIOR JUDGE WILLIAM

§

WAYNE JUSTICE

§

CORRECTIVE ACTION ORDER: HEALTH OUTCOMES MEASURES AND DENTAL ASSESSMENT

Decree References:

¶ 288: “…the EPSDT program will measure several indicators of the health of the EPSDT

population. These health outcome indicators will serve as a proxy to measure whether recipients

receive the full range of services that they need and are entitled to receive.”

¶ 289: “The parties will together choose health outcomes indicators…. that … measure important

aspects of the population’s health. In addition, the indicators will be diverse enough to gauge the

health of the entire EPSDT population, not merely factions of the population.”

¶ 293: “…The parties will develop a list of health outcome indicators by September 1, 1995. The

list will include about 12 indicators. The parties may agree to change, add or delete indicators.”

¶ 294: The parties will further agree on a target goal for each health outcome indicator….”

¶ 295: “Defendants will report the best available information on each health indicator annually,

beginning on September 1, 1996 and continuing through 1999. The EPSDT program will arrange

for studies to evaluate the health of the EPSDT population, including each health outcome

indicator. Defendants will present their proposed methodology for Plaintiffs’ approval by April

1, 1996. Plaintiffs will not unreasonably withhold approval. If they approve, Plaintiffs may make

suggestions. Defendants may accept or reject the suggestions.”
No. 3:93CV65 ~ Frew vs. Hawkins Corrective Action Order: Health Outcomes Measures and Dental Assessment

Exhibit 4
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¶ 296: “If reported results do not achieve the goal for each indicator, Defendants will develop corrective action plans to address all matters within Defendants’ control to improve results for each indicator. Defendants will present their corrective action plans for Plaintiffs’ review and comment by January 30 each year. Defendants will not unreasonably reject Plaintiffs’ suggestions.” ¶ 173 “…Defendants will report on dental health outcomes in the EPSDT population…” ¶ 174 “…By March 1, 1996, Defendants will arrange for a study to assess the dental health of the EPSDT population. The study will assess changes over time. At a minimum, the study will evaluate improvements in the number and percent of recipients who 1) have no cavities, 2) have no untreated cavities and 3) require hospital treatment for dental problems. The method will be subject to Plaintiffs’ approval…” See also Decree ¶¶ 3, 9, 143-45, 191, 199, 286-87, 290-92, 298-99. Citation for Finding of Decree Violation: Frew, 109 F.Supp.2d at 603, n. 40; 654-58. IT IS ORDERED: • Health Outcomes Measures: Within four months of entry of the corrective action plan Order, Defendants will present to Plaintiffs about 12 proposed outcome indicators that meet the decree’s requirements to be used as measures of the health of the EPSDT population and a proposed study methodology. Within 30 days of Defendants’ proposal of the proposed outcome indicators, counsel will confer to determine if they agree about the proposal. Plaintiffs will indicate whether they agree that the proposed methodology is professional and valid, and whether it complies with Decree paragraphs 286-295. They may also offer suggestions, which Defendants may accept or reject. Defendants will report on the outcome indicators and study methodology in the next quarterly report issued after the methodology has been determined. If the parties cannot agree on

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outcome indicators and/or study methodology within 90 days of Plaintiffs’ receipt of Defendants’ proposals, the dispute will be resolved by the Court upon motion to be filed by either party. • Defendants will conduct a study to evaluate the health of the EPSDT population, including each health outcome indicator. Defendants will present the results of the first outcome indicators study to the Court and to Plaintiffs no later than eighteen months after the parties agree to a study methodology. • Within four months of completion of the first outcome indicators study, Defendants will present a corrective action plan and outcome indicator goals to Plaintiffs. The outcome indicators corrective action plan will address ways in which to achieve the targeted goals for each indicator. Plaintiffs’ counsel will have two months to respond and offer suggestions to the proposed outcome indicators corrective action plan. Defendants may not unreasonably reject Plaintiffs’ suggestions. Once the terms of the corrective action plan are determined, Defendants will implement them as expeditiously as possible while complying with all state and federal laws concerning any actions the corrective action plans require. • Defendants will conduct a second outcome indicators study, beginning within eighteen months of the date on which the parties agree to the terms of the outcome indicators corrective action plan. The second study will look at selected outcome measures, to be determined by counsel for both parties, with emphasis on examining the effectiveness of the new corrective action plan. Defendants will present the results of their second outcome indicators study to the Court and to Plaintiffs no later than eighteen months after the parties agree to a study methodology for the second outcome indicators study. The second study will be prepared according to the procedures stated above, unless the parties agree otherwise.

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• When the two outcome indicator studies are complete, counsel will confer to determine what further action, if any, is required. Counsel will begin to confer no later than 30 days following completion of the second study. If the parties agree, they will so report to the Court within 120 days of completion of the second study. If the parties cannot agree within 90 days of completion of the second study, the dispute will be resolved by the Court upon motion to be filed by either party. If the parties cannot agree, either party will file its motion within 30 days of completion of discussions among counsel. • Dental Assessment: Within four months of entry of the corrective action plan Order, Defendants will propose plans for a professional and valid dental study that assesses class members’ dental health. It will include at least the evaluation of the number and percent of recipients who: 1) have no history of cavities; 2) have untreated cavities; 3) require urgent dental care for pain, infection or bleeding; and 4) require dental care that may potentially include either inpatient hospitalization or outpatient treatment under general anesthesia. At Defendants’ option, Defendants may decide that the Texas Department of State Health Services (“DSHS”), the State Dental Director and DSHS’s regional dentists will conduct the study, as long as it is professionally and validly designed and conducted. The evaluation will determine reasons why inpatient hospitalization or outpatient treatment under general anesthesia may be necessary, including such factors as disability or compromising medical condition. The dental study will differentiate between class members who have been enrolled in Medicaid in Texas for less than 12 continuous months and those who have been enrolled in Medicaid in Texas for more than 12 continuous months. • Plaintiffs will respond to Defendants’ dental study proposal within two months of receiving it. Plaintiffs will indicate whether they agree that the proposed methodology is professional and

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valid, and whether it complies with Decree paragraphs 173 and 174. They may also offer suggestions, which Defendants may accept or reject. Defendants will report on the study methodology in the next quarterly report issued after the methodology has been determined. • Defendants will conduct a study to evaluate the dental health of the EPSDT population. Defendants will present the results of their first dental study to the Court and to Plaintiffs no later than eighteen months after the parties agree to a study methodology. • Within four months of completion of the first dental study, Defendants will present a dental corrective action plan to Plaintiffs. Plaintiffs’ counsel will have two months to respond and offer suggestions to the proposed dental corrective action plan. Defendants may not unreasonably reject Plaintiffs’ suggestions. Once the terms of the corrective action plan are determined, Defendants will implement them as expeditiously as possible while complying with all state and federal laws concerning any actions the corrective action plans require. • Defendants will conduct a second dental study, beginning within 36 months of the date on which the parties agree to the terms of the dental corrective action plan. The second study will look at selected dental measures, to be determined by counsel for both parties, with emphasis on examining the effectiveness of the new dental corrective action plan and changes in class members’ dental health since the first study. Defendants will present the results of their second dental study to the Court and to Plaintiffs no later than eighteen months after the parties agree to a study methodology for the second dental study. The second study will be prepared according to the procedures stated above, unless the parties agree otherwise. • When the two dental studies are complete, counsel will confer to determine what further action, if any, is required. Counsel will begin to confer no later than 30 days following completion of the second study. If the parties agree, they will so report to the Court within 120

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days of completion of the second study. If the parties cannot agree within 90 days of completion of the study, the dispute will be resolved by the Court upon motion to be filed by either party. If the parties cannot agree, either party will file their motion within 30 days of completion of discussions among counsel.

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 Case 3:93-cv-00065-RAS Document 637-6 Filed 04/27/07 Page 1 of 9 PageID #: 15803

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
PARIS DIVISION

LINDA FREW, et al., Plaintiffs,
v.
ALBERT HAWKINS, et al., Defendants.

§

§

§

§

CIVIL ACTION NO. 3:93CV65

§

SENIOR JUDGE WILLIAM

§

WAYNE JUSTICE

§

CORRECTIVE ACTION PLAN ORDER: MANAGED CARE

Decree References:

¶3: “Recipients are also entitled to all needed follow up health care services that are permitted by

federal Medicaid law.”

¶190: EPSDT recipients served by managed care organizations are entitled to timely receipt of

the full range of EPSDT services, including but not limited to medical and dental check ups.

¶191: TDH [now Texas Health and Human Services Commission] will assure by various

means that the number and percent of EPSDT patients in each managed care organization who

receive all medical and dental check ups when due and information for outcomes research as

needed is accurately collected.

¶192: TDH [now TxH&HSC] will assure by various means that managed care organizations

provide medical and dental check ups to newly enrolled recipients no later than 90 days after

enrollment except when recipients knowingly and voluntarily decline or refuse services.

Managed care organizations will also have the capacity to accelerate services to the children of

migrant farmworkers to accommodate their special circumstances. TDH [now TxH&HSC] will

also assure medical and dental check ups in a timely manner to all recipients.

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Exhibit 5

Case 3:93-cv-00065-RAS Document 637-6 Filed 04/27/07 Page 2 of 9 PageID #: 15804

¶194: TDH [now TxH&HSC] will assure by various means that managed care organizations

arrange appropriate training for all health care providers and their staff who serve EPSDT

recipients as authorized by SB601. All will be trained about program requirements relevant to

their responsibilities, including the relevant terms of this settlement.”

¶ 197: “TDH [now TxH&HSC] will assure by various means that managed care organizations

have an adequate supply of appropriate providers who can serve EPSDT recipients (including

specialists) located conveniently so that recipients do not face unreasonable 1) delay scheduling

appointments, 2) delay waiting for appointments once at the office or 3) travel times to get to the

office…”

See also Decree ¶¶ 184-189, 193, 195-96, 198-99.

Citation for Finding of Decree Violation: Frew, 109 F.Supp.2d at 618-37; 401 F. Supp.

2d at 671-85.

IT IS ORDERED:

I. Medical Check Ups.

• Beginning in their next renewal, amended or new contracts in 2007, Defendants will require

each of their managed care organizations (each HMO within each service delivery area and

PCCM by Texas Health and Human Services Commission (“HHSC”) region) to report annually

about: a) the total number of new enrollees under the age of 21 who are still enrolled with that

organization after 90 days; b) the number and percent of new members under the age of 21 still

enrolled with that organization after 90 days who get medical check ups within 90 days of

enrollment; c) the total number of enrollees under the age of 21 who have been enrolled

continuously with that organization for 90 days or more (excluding the new enrollees); and d) the

number and percent of enrollees under the age of 21 who have been enrolled continuously for 90

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days or more with that organization (excluding the new enrollees) who get timely, ageappropriate medical check ups. The reports will provide common percents that are not adjusted as CMS specifies. Defendants will include the reports in their quarterly reports to the Court. • Based on these reports and the results of the check up completeness studies performed in connection with the Check Up Corrective Action Order, Defendants will develop and implement plans to reward and/or sanction managed care organizations with high or low rates of check ups and especially complete check ups. For example, rewards and sanctions could be by means of increases or decreases to payment levels and/or by means of changes to “default” enrollments of class members. All plans for rewards and sanctions will be compliant with federal and state law and, for the remainder of any unexpired contract term, with the terms of any contract, and will not exceed $15 million all funds, annually. II. Class Members Who Receive No Care. • Defendants will contract for an independent, external study of class members who do not receive any form of health care covered by Defendants’ contracts with their managed care organizations. They will arrange for this study as expeditiously as possible while complying with state and federal law concerning contracts of this type. The study will use professionally valid methods of assessment. The Request for Proposal (“RFP”) specifications will include parameters for prospective independent evaluators to use in proposing independent, unbiased, and statistically valid methodologies to conduct the study described in this Corrective Action Order. Defendants are attempting to retain the Institute for Child Health Policy (ICHP) to assist in the preparation of a draft RFP for an independent evaluator to conduct the study. Plaintiffs and Defendants anticipate that ICHP will agree to do so.

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• The specifications will emphasize the independence of the evaluator in assessing the areas of

study described in this Corrective Action Order. The independent evaluator should have

demonstrated expertise in the particular area of study as evidenced by published studies by either

the research teams/organization or principal investigator in peer refereed journals. Defendants

will assure that the study RFP and other solicitation documents (including Requests for

Information, if any) are provided to Plaintiffs’ counsel in draft form for review and comment.

Plaintiffs’ counsel will execute non-disclosure certifications prior to receipt of non-public

procurement-related materials and will likewise sign conflict of interest statements of the type

required of project and management personnel under agency policy and state law. Should

Plaintiffs wish to utilize consultants to review any documentation, the consultants will also

execute non-disclosure and conflicts statements prior to receipt of the non-public procurement-

related materials. Any consultant to whom Plaintiffs’ counsel provide copies of non-public

procurement-related materials will be prohibited from responding to any RFP for which they

have assisted Plaintiffs. Plaintiffs must provide comments to the solicitation documents within

fifteen business days of the transmission of the document(s). Defendants may accept or reject

suggestions. After Defendants respond to Plaintiffs’ comments about the draft RFP and other

solicitation documents, Plaintiffs will have ten days to indicate whether they agree that the RFP

meets the requirements of this Order. If they agree it does, they may offer suggestions.

Defendants may accept or reject the suggestions. If the parties cannot agree on whether the RFP

meets the requirements of this Order, the dispute will be resolved by the Court upon motion to be

filed by either party.

• Defendants will conduct any procurement for independent evaluation services on a

competitive basis in accordance with state and federal requirements and Defendants’ policies

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regarding competitive procurements. Defendants will be responsible for reviewing the qualifications of all prospective evaluators, evaluating all proposals, and selecting the best qualified evaluator or evaluators whose proposal(s) best meet the requirements of the RFP and supply best value. Plaintiffs may review and comment on all proposals that Defendants receive, but Defendants will make the selection. • Defendants will provide all required information to the independent evaluator(s) on a timely basis, in usable form, and in a manner that protects the privacy of class members and confidentiality of information in compliance with state and federal law, cooperate with the independent evaluator(s) and make timely payment to them for services properly and timely rendered, as required by the Court’s order or Defendants’ agreement with the evaluator(s). Defendants will establish a table of contract deliverables in the RFP. Defendants will provide Plaintiffs’ counsel with copies of each deliverable within ten business days. If Plaintiffs’ counsel have comments or questions on contract deliverables, then those comment or questions must be received by Defendants within fifteen business days of the date of transmission of the contract deliverable to Plaintiffs’ counsel. Completed evaluations will be provided to the Court as completed by the evaluator(s), without editing or changes by Plaintiffs’ counsel, Defendants or Defendants’ counsel, or anyone acting on their behalf. • While it is the parties’ expectation that a successful bidder can be selected within a year of entry of the Court’s Order, without knowing the study parameters in advance it is not possible to predict how long the study itself will (or should) take. Defendants, however, will present the first no-care study to the Court and Plaintiffs within one month of its receipt of the completed report.

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• After the first no-care study is complete, counsel will confer to determine whether and what

kind of corrective action plans Defendants will implement. If the parties cannot agree on

corrective action plans within 90 days, the Court will resolve the dispute by motion filed by

either party. Once the need for and the terms of the corrective action plans are determined,

Defendants will implement them as expeditiously as possible while complying with all state and

federal laws concerning any actions the corrective action plans require, as well as the terms of

any unexpired contracts with managed care organizations or others.

• Plans may include rewards and/or sanctions for managed care organizations with high or low

rates of failure to provide care that class members are entitled to receive. For example, rewards

and sanctions could be by means of increases or decreases to payment levels and/or by means of

changes to “default” enrollments of class members. All plans for rewards and sanctions will

comply with federal and state law and, for the remainder of any unexpired contract term, with the

terms of any contract, and will not exceed $15 million all funds, annually.

• If the parties agree on a corrective action plan, Defendants will file it with their next

quarterly report to the Court. They will implement it as soon as practicable after filing. It is

understood that should the plan involve contract modifications or renegotiations with managed

care organizations, the imposition of a specific deadline could result in the State having to

negotiate under disadvantageous conditions, thus no deadlines are specified. If the parties do

not agree on a plan, the Court will resolve the issue.

• Eighteen months after the statewide implementation of the corrective action plan, Defendants

will provide to Plaintiffs’ counsel a draft RFP for a second “no care” study. The second study’s

emphasis will be on examining the effectiveness of the new corrective action plan. In all other

respects, arrangements for and the conduct of the second study will be according to the

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procedures described above. Defendants will file their second study no later than 36 months

after completion of the first study.

• When the two no-care studies are complete, counsel will confer to determine what further

action, if any, is required. Counsel will begin to confer no later than 30 days following

completion of the second study. If the parties agree, they will so report to the Court within 120

days of completion of the second study. If the parties cannot agree within 90 days of completion

of the second study, the dispute will be resolved by the Court. If the parties cannot agree, either

party may file a motion within 30 days of completion of discussions among counsel.

III. Acceleration of Services to Children of Migrant Farmworkers in Managed Care

• Beginning in their next renewal, amended or new contracts in 2007, Defendant HHSC will

include a “children of migrant farmworkers” provision in its contracts with all of its managed

care organizations that operate in areas where migrant farm workers reside. This provision will

make acceleration of services to enrollees who are migrant farmworker children (“FWC”) a

contract requirement. The contracts will require annual reports from each managed care

organization about identification of and delivery of services to these class members. The

managed care organizations’ annual reports will include a description of the following activities

and their results:

• The managed care organizations will identify as many community and statewide groups that

work with FWC as possible within their service areas. They will coordinate and cooperate with

as many as possible. The managed care organizations will also encourage the community groups

to assist in the identification of FWC.

• The managed care organizations will make appropriate, aggressive efforts to reach each

identified FWC to provide timely medical check ups and follow up care if needed.
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• The managed care organizations will maintain accurate, current lists of all identified FWC enrollees. • Defendants and their managed care organizations will maintain the confidentiality of information about the identity of FWC and will require any other contractors (who receive the information only because they need it) to do the same. • Defendants will develop and implement a system of rewards and sanctions for their managed care organizations based on the FWC reports. The rewards and sanctions will be consistent with the rewards and sanctions developed in connection with other sections of this Corrective Action Order. All rewards and sanctions will be in accordance with federal and state law as well as consistent with the terms of any contract then in place, and will not exceed $15 million all funds, annually.
• Defendants will report annually to Plaintiffs and to the Court about their program of rewards and sanctions for managed care organizations based on the organizations’ delivery of services to children of migrant farmworkers, including Defendants’ informal evaluation of the program’s effects. These reports will be filed with Defendants’ October quarterly monitoring report, beginning in 2008. IV. Rewards and Sanctions • Beginning no later than 12 months after the date this Order is entered, Defendants will post on their website timely information about the rewards and sanctions they issue to Medicaid managed care organizations based on any provision of this Order. The posted information will include at least award and sanction amounts, the managed care organization(s) to whom they are issued, and the basis for each award and sanction.

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• Financial sanctions imposed against any managed care organization based on this or any other corrective action plan may not be passed down by the organization to health care providers except on an individual basis. Sanctions may be imposed individually only on the basis of inadequate individual performance, after notice and opportunity to cure the deficiencies. When a provider’s performance is inadequate, managed care organizations must collaborate with the provider to try to improve performance unless the provider refuses.

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 Case 3:93-cv-00065-RAS Document 637-7 Filed 04/27/07 Page 1 of 9 PageID #: 15812

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
PARIS DIVISION

LINDA FREW, et al., Plaintiffs,
v.
ALBERT HAWKINS, et al., Defendants.

§

§

§

§

CIVIL ACTION NO. 3:93CV65

§

SENIOR JUDGE WILLIAM

§

WAYNE JUSTICE

§

CORREACTIVE ACTION ORDER: OUTREACH AND INFORMING
Decree References: ¶ 32: “All outreach units will have sufficient staff and other reasonably necessary resources to handle their workload promptly and effectively.” ¶ 50: “The purpose of oral outreach is to “encourage EPSDT recipients to fully use EPSDT services; and assist recipients to overcome common barriers that prevent them from using EPSDT services.” ¶ 52: “Oral outreach efforts will effectively inform recipients about EPSDT, including the schedule for medical and dental checkups as well as the full range of covered services. Oral outreach will also effectively inform recipients about the benefits of preventive health care, that services are free of charge, how to locate a provider who is willing to provide services to EPSDT recipients, how to schedule appointments and how to schedule transportation assistance.” ¶ 60: “each month, the outreach unit will at a minimum report the following information to EPSDT program: ….”

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Exhibit 6

Case 3:93-cv-00065-RAS Document 637-7 Filed 04/27/07 Page 2 of 9 PageID #: 15813

¶ 61: “By September 1, 1996, Defendants will develop and implement a method for reports the

number and percent of recipients who receive medical and/or dental check ups after receipt of

oral outreach.”

See also ¶ ¶ 10-14, 17, 20-31, 33-59, 62-74, 95-96, 148-53, 176-83, 193.

Citation for Finding of Decree Violations: Frew v. Gilbert, 109 F.Supp.2d 579, 589-600

(E.D.Tex 2000); 401 F.Supp2d at 660-666.

IT IS ORDERED:

I. Arrange Independent Studies about Outreach and Missed Check Ups.

• Defendants will contract for an independent, external evaluation of outreach and the reasons

that class members miss check ups. They will arrange for this study as expeditiously as possible

while complying with state and federal law concerning contracts of this type. The study will use

professionally valid methods of assessment. The Request for Proposal (“RFP”) specifications

will include parameters for prospective independent evaluators to use in proposing independent,

unbiased, and statistically valid methodologies to conduct the study described in this Corrective

Action Order. Defendants are attempting to retain the Institute for Child Health Policy (“ICHP”)

to assist in the preparation of a draft RFP for an independent evaluator to conduct the study.

Plaintiffs and Defendants anticipate that ICHP will agree to do so.

• The specifications will emphasize the independence of the evaluator in assessing the areas of

study described in this Corrective Action Order. The independent evaluator should have

demonstrated expertise in the particular area of study as evidenced by published studies by either

the research teams/organization or principal investigator in peer refereed journals. Defendants

will assure that the study RFP and other solicitation documents (including Requests for

Information, if any) are provided to Plaintiffs’ counsel in draft form for review and comment.

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Plaintiffs’ counsel will execute non-disclosure certifications prior to receipt of non-public procurement-related materials and will likewise sign conflict of interest statements of the type required of project and management personnel under agency policy and state law. Should Plaintiffs wish to utilize consultants to review any documentation, the consultants will also execute non-disclosure and conflicts statements prior to receipt of the non-public procurementrelated materials. Any consultant to whom Plaintiffs’ counsel provide copies of non-public procurement-related materials will be prohibited from responding to any RFP for which they have assisted Plaintiffs. Plaintiffs must provide comments to the solicitation documents within fifteen business days of the transmission of the document(s). Defendants may accept or reject suggestions. After Defendants respond to Plaintiffs’ comments about the draft RFP and other solicitation documents, Plaintiffs will have ten days to indicate whether they agree that the RFP meets the requirements of this Order. If they agree it does, they may offer suggestions. Defendants may accept or reject the suggestions. If the parties cannot agree on whether the RFP meets the requirements of this Order, the dispute will be resolved by the Court upon motion to be filed by either party. • Defendants will conduct any procurement for independent evaluation services on a competitive basis in accordance with state and federal requirements and Defendants’ policies regarding competitive procurements. Defendants will be responsible for reviewing the qualifications of all prospective evaluators, evaluating all proposals, and selecting the best qualified evaluator or evaluators whose proposal(s) best meet the requirements of the RFP and supply best value. Plaintiffs may review and comment on all proposals that Defendants receive, but Defendants will make the selection.

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• Defendants will provide all required information to the independent evaluator(s) on a timely

basis, in usable form, and in a manner that protects the privacy of class members and

confidentiality of information in compliance with state and federal law, cooperate with the

independent evaluator(s) and make timely payment to them for services properly and timely

rendered, as required by the Court’s order or Defendants’ agreement with the evaluator(s).

Defendants will establish a table of contract deliverables in the RFP. Defendants will provide

Plaintiffs’ counsel with copies of each deliverable within ten business days. If Plaintiffs’ counsel

have comments or questions on contract deliverables, then those comment or questions must be

received by Defendants within fifteen business days of the date of transmission of the contract

deliverable to Plaintiffs’ counsel. Completed evaluations will be provided to the Court as

completed by the evaluator(s), without editing or changes by Plaintiffs’ counsel, Defendants or

Defendants’ counsel, or anyone acting on their behalf.

• Defendants will provide their first RFP to Plaintiffs’ counsel in draft form within six months

of entry of the corrective action plan Order. The RFP will address each of the outreach methods,

tools, and models listed below. Defendants’ initial study will assess several outreach methods in

a manner that permits comparison of the methods. For each of the following five methods, the

study will assess the impact on check up participation rates [i.e. “effect” or “effectiveness”] in

the area under study. The study will also assess racial and ethnic disparities relating to each form

of outreach, and may also assess other relevant issues relating to cultural appropriateness;

1) Media: A single (one) geographic area that includes both urban and rural counties will

be used to study the effectiveness of television and radio advertisement outreach. The study will

assess the effect of television and radio advertisement for Texas Health Steps (“THSteps”)

outreach over a time frame of at least 12 months.
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2) Intensive School-Based Program: Defendants will study the effectiveness of intensive school based outreach in one geographic area that includes both urban and rural counties. The study will assess the effect of targeting THSteps outreach and informing information at preschool and school staff, including school sports/physical education programs, nurses, social workers, administration, etc., over a time frame of at least 12 months.
3) Intensive Community Based Program: Defendants will study the effectiveness of intensive outreach that utilizes contracts or agreements or understandings that may involve no monetary remuneration, with community based organizations (including faith-based institutions, neighborhood associations, and non-governmental organizations already having contact with class members’ families for other purposes). Preference will be given to community based organizations that use promotores or similar health workers to provide information and assistance to class members’ families in overcoming barriers to utilization of THSteps services. This study must include an assessment of the effectiveness of face to face (in person) outreach contact with the family of class members that are not up to date on medical and dental checkups unless this contact is explicitly refused by the family. The project will assess effect of the use of this methodology in one geographic area that includes both urban and rural counties over a time frame of at least 12 months.
4) Telephone follow-up for missed check up appointments: Defendants will study the effectiveness of telephone calls to class members who miss medical and/or dental check up appointments. The study will assess the effect of the use of this outreach methodology in one geographic area that includes both urban and rural counties over a time frame of at least 12 months.

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5) Mail follow-up for missed check up appointments. Defendants will study the effectiveness of letters mailed to class members who miss medical and/or dental check up appointments. The study will assess the effect of the use of this outreach methodology in one geographic area that includes both urban and rural counties over a time frame of at least 12 months. • Topics to be addressed by the outreach effectiveness studies include but are not limited to:
a) When information is provided orally (via telephone and/or face to face), is it accurate, appropriate, understood and can the recipient act on the information to accomplish the desired outcome of completed check ups?
b) What is the relationship between type of outreach method (broken down by types and combinations of types of outreach) and subsequent receipt of / participation in medical, dental and/or both check ups(s)?
c) Does outreach identify and effectively help families to overcome barriers that prevent class members from getting medical check ups, dental check ups and/or follow up care that the need?
d) What causes class members to miss medical check ups, dental check ups and/or both? and
e) What can be done to make outreach more effective? • After the first outreach effectiveness study is complete, counsel will confer to determine what kind of corrective action plans, if any, Defendants will implement. If the parties cannot agree on corrective action plans within 90 days, the Court will resolve the dispute by motion filed by either party. Once the need for and the terms of the corrective action plans are determined, Defendants will implement them as expeditiously as possible while complying with all state and federal laws concerning any actions the corrective action plans require, as well as the terms of any unexpired contracts. Once the plans are determined, Defendants will provide

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semi-annual interim reports about their implementation of the corrective action plans as part of their January and July quarterly monitoring reports to the Court. • Eighteen months after the statewide implementation of the corrective action plans and modifications to the outreach model described in the preceding paragraph, Defendants will provide to Plaintiffs’ counsel, a draft RFP for a second outreach study. The second study will evaluate the effectiveness of these corrective action plans as applied. In all other respects, arrangements for and the conduct of the second study will be according to the procedures described above. II. Improve Outreach by Mail and Follow Up. • Defendants will continue to send check up reminder letters when check ups are due and will send follow up letters when medical check ups are late by three months, except where otherwise required under an outreach and informing study design. Defendants may choose to base their lists of “late” check ups on submitted claims rather than paid claims. Following the completion of the first study regarding the effectiveness of various types of outreach, including outreach by mail, the standards in this section may be altered as part of the corrective action plan. Counsel will begin to confer no later than 30 days following completion of the first study. If the parties agree, they will so report to the Court within 120 days of completion of the first study. If the parties cannot agree within 90 days of completion of the first study, the dispute will be resolved by the Court upon motion to be filed by either party. If the parties cannot agree, either party will file its motion within 30 days of completion of discussions among counsel.

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III. Improve the Med-ID Card. • Within two months of the date of this Order, Defendants will change the design of the monthly Med-ID card to clarify the availability of dental care and the appropriate scheduling of check ups. IV. Require Informing and the Use of “extra effort referrals” by Eligibility Workers. • Within four months of the entry of this Order, Defendants will complete a program of contacting all Medicaid eligibility workers who deal with class members. Through this contact, they will remind these workers that the Decree requires them to provide appropriate THSteps informing to class members and their parents/guardians. Defendants will also explain the appropriate use of “extra effort referrals” by the eligibility workers to the outreach units, as required by the Decree. (See Decree ¶ 23). V. Coordinate Outreach to Avoid Conflicting or Unnecessarily Duplicative Messages. • Within 12 months of the entry of this Order, Defendants will develop and implement a plan to effectively coordinate all Medicaid and child health-focused approaches made by Defendants and their contractors toward class members and their families. The plan will provide for delivery of a concise and consistent message to these recipients, rather than conflicting, divergent or unnecessarily duplicative information. The information provided must include all that is required by the Decree. • In accordance with Decree ¶ 65, Defendants will also develop and implement a plan for coordination with other state agencies and state contractors that provide health or public benefit information to class members or their families. The plan will provide for delivery of a concise and consistent message about health outreach topics, rather than conflicting, divergent or

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unnecessarily duplicative information. Defendants will develop and implement the plan within six months of the entry of this Order. VI. Reinstate Outreach Reports Required by Decree Paragraphs 60 and 61. • Within six months of entry of the corrective action plan Order, Defendants will begin to produce the outreach reports required by Decree paragraphs 60 and 61. These reports will be included with Defendants’ quarterly monitoring reports, beginning with the first report due six months after entry of the corrective action plan Order. VII. Determine Whether Further Action is Needed. • When the second study (regarding the effectiveness of the corrective action plans as implemented statewide after the first study) is complete, counsel will confer to determine what further action, if any, is required. Counsel will begin to confer no later than 30 days following completion of the second study. If the parties agree, they will so report to the Court within 120 days of completion of the second study. If the parties cannot agree within 90 days of completion of the second study, the dispute will be resolved by the Court upon motion to be filed by either party. If the parties cannot agree, either party will file its motion within 30 days of completion of discussions among counsel.

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 Case 3:93-cv-00065-RAS Document 637-8 Filed 04/27/07 Page 1 of 5 PageID #: 15821

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
PARIS DIVISION

LINDA FREW, et al., Plaintiffs,
v.
ALBERT HAWKINS, et al., Defendants.

§

§

§

§

CIVIL ACTION NO. 3:93CV65

§

SENIOR JUDGE WILLIAM

§

WAYNE JUSTICE

§

CORRECTIVE ACTION ORDER: PRESCRIPTION AND NON-PRESCRIPTION MEDICATIONS;
MEDICAL EQUIPMENT AND SUPPLIES

Decree References:

¶ 3: “Recipients are also entitled to all needed follow up health care services that are permitted

by federal Medicaid law. 42 U.S.C. §1396d(r).

¶129: “…Defendants will implement an initiative to effectively inform pharmacists about

EPSDT, and in particular about EPSDT’s coverage of items found in pharmacies…”

¶130: “…if pharmacists’ understanding of the program is unacceptable, Defendants will conduct

an initiative to orally inform pharmacists about EPSDT’s coverage.”

Defendants have implemented a Preferred Drug List (PDL), as permitted by federal Medicaid

law. 42 U.S.C. §1396r-8. Prior authorization is required if a class member is to receive a

prescribed medicine that is not on the PDL. Defendants’ rules allow pharmacies to provide a 72-

hour “emergency” allotment of a prescription. The purpose of the 72-hour “emergency”

prescription is to ensure that class members are not deprived of medicine that they need while

prior authorization is requested, particularly (but not only) on weekends. Further, the

emergency” allotment provides time for a new prescription to be requested if the off-PDL

medicine is not approved.
No. 3:93CV65 ~ Frew vs. Hawkins Corrective Action Order: Prescription And Non-Prescription Medications; Medical Equipment And Supplies

Exhibit 7
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IT IS ORDERED: • As to class members, Defendants’ policy is: a pharmacy must provide a 72-hour emergency allotment of a medication that is not listed on the PDL if a denial is only because of lack of prior authorization and the pharmacist has made a reasonable attempt to contact the physician or, if it is a night, weekend, holiday, or the physician cannot be reached, the pharmacist has submitted the prescription as written and received an electronic denial solely due to lack of a prior authorization (“PA”). • Defendants have an automated system such that seven days a week/24 hours a day (except for the normal weekly scheduled system maintenance, which is about 5 hours/week at night), Medicaid pharmacy providers can submit a point-of-sale claim with an emergency override for any claim that has rejected due solely to lack of a prior authorization. The claim is typically adjudicated immediately and returned with a payable response and amount to be paid to the provider. Pharmacy providers are paid in full for the quantity submitted on the claim and receive a full dispensing expense. In other words, through the computer system of Defendants’ contractor, when pharmacies submit a claim for a medication not listed on the PDL, they may submit a request through the computer system for an “emergency override” to obtain immediate electronic approval of a 72-hour emergency prescription. This is permitted if there is no prior approval to fill the entire non-PDL prescription as written and the physician is unavailable and/or unable to request prior approval. • Currently, when a pharmacy submits a claim, it receives an electronic message from Defendants’ contractor within a matter of seconds. The message either approves payment or explains the reason(s) for denial by use of denial codes. This message includes a maximum of 200 characters (letters, punctuation, spaces). Within 120 days, Defendants will ensure that this

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message is changed as follows. When a non-PDL medication is denied solely because prior authorization has not been obtained, the message will instruct the pharmacy to the effect that the Dr. should call TX PA Call Center 1-877-728-3927 or R.Ph should submit 72hr Emergency Rx if Dr. not available. No later than three months after entry of this Order, Defendants will send a mailing to all pharmacies enrolled in Medicaid. The mailing will explain in clear terms the 72-hour emergency prescription policy, with emphasis on the requirement as it applies to children. It will also include useful information about the requirement, in a format and size that can be attached to pharmacy computer screens, to remind pharmacy staff about the requirement. • No later than three months after entry of this Order, Defendants will work with the Texas Pharmacy Association to explain to TPA members the 72-hour emergency prescription policy, with emphasis on the policy as it applies to children. • No later than six months after entry of this Order, Defendants will begin an analysis of their contracted pharmacies’ claims history for emergency prescriptions. Within 12 months of the beginning of this analysis, Defendants will complete their analysis of all pharmacies enrolled in Medicaid. At their option, Defendants may rely on their Vendor Drug staff to complete the two analyses required in this paragraph. Initially, they will seek to identify those pharmacies that, despite processing a significant volume of Medicaid prescriptions in therapeutic classes subject to prior authorization, have processed no emergency prescriptions pursuant to the 72-hour policy. They will subsequently seek to identify those Medicaid pharmacies that fill a high volume of Medicaid prescriptions in therapeutic classes subject to prior authorization but that appear to have filled a lower than expected percentage of 72-hour prescriptions. Within two years of completion of the first analysis, Defendants will begin a second analysis for all pharmacies. The

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second analysis will be finished within 12 months. At their option, Defendants may choose to prioritize their analysis in any reasonable manner. • Defendants will provide intensive, targeted educational efforts to those pharmacies for which the data suggest a lack of knowledge of the 72-hour emergency prescriptions policy. In addition, Defendants will continue their educational efforts with respect to all Medicaid pharmacies, using means such as newsletters, fax notices to stakeholders, computer-based training, information on their public website, e-mail notifications, regional pharmacist visits, one-on-one education via the Pharmacy Resolutions Help Desk, as well as targeted follow-up with pharmacies that are the subject of complaints. • Defendants will make available a Medicaid PDL subscription service, at no charge, that health care providers may use on the internet or download to hand held devices that they use at the point of care. The service will inform prescribers about all non-preferred medicines that require prior approval. Defendants will post information on their Vendor Drug website advising providers about the service and how to request it. Defendants expect that the service will be available by August 2007. • Beginning no later than January 2008, Defendants will begin encouraging all Medicaidenrolled pharmacies to also become Medicaid-enrolled providers of durable medical equipment (“DME”). The purpose of this effort is to facilitate class members’ receipt of DME normally found in pharmacies. • Beginning in September 2007, each time a pharmacy signs a new contract, amended contract or renewed contract to be a Medicaid pharmacy, Defendants will provide information about the emergency prescription policies. They will also provide information about the scope of DME that is available in pharmacies for class members.

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• By January 2008, Defendants will train staff at their ombudsman’s office about the emergency prescription standards, what steps to take to immediately address class members’ problems when pharmacies do not provide emergency medicines, and DME standards and common problems. • Beginning no later than their September 2007 contract amendments, Defendants will encourage STAR managed care organizations to train staff at their 24-hour nurse hotlines about the emergency prescription standards, what steps to take to immediately address class members’ problems when pharmacies do not provide emergency medicines, and DME standards and common problems. The 24-hour nurse hotlines will attempt to respond immediately to problems with emergency medicines by means at their disposal, including explaining the rules to class members so that they understand their rights and, if need be, by offering to contact the pharmacy that is refusing to fill the prescription to explain the 72-hour and DME policies to the staff refusing to fill the prescription. • When the two analyses are complete, counsel will confer to determine what, if any, further action is required. Counsel will begin to confer no later than 30 days following completion of the second analysis. (“completion”). If the parties agree, they will so report to the Court within 120 days of completion. If the parties cannot agree within 90 days of completion, the dispute will be resolved by the Court upon motion to be filed by either party. If the parties cannot agree, either party will file their motion within 30 days of the conclusion of discussions among counsel.

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 Case 3:93-cv-00065-RAS Document 637-9 Filed 04/27/07 Page 1 of 7 PageID #: 15826

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
PARIS DIVISION

LINDA FREW, et al., Plaintiffs,
v.
ALBERT HAWKINS, et al., Defendants.

§

§

§

§

CIVIL ACTION NO. 3:93CV65

§

SENIOR JUDGE WILLIAM

§

WAYNE JUSTICE

§

CORRECTIVE ACTION ORDER: ADEQUATE SUPPLY OF HEALTH CARE PROVIDERS Decree References: ¶ 2: “EPSDT is intended to provide comprehensive, timely and cost effective health services to indigent children and teenagers who qualify for Medicaid benefits. Check ups are the cornerstone of the program. They assess recipients’ health, provide preventive care and counseling (anticipatory guidance) and make referrals for other needed diagnosis and treatment. 42 U.S.C. §§1396a(a)(43); 1396d(r). Recipients are entitled to both medical and dental check ups on a regular schedule.” ¶ 3: “Recipients are also entitled to all needed follow up health care services that are permitted by federal Medicaid law. 42 U.S.C. §1396d(r).” ¶ 88: “An adequate corps of capable providers is necessary to provide recipients with adequate access to needed services…” ¶ 93: “Defendants will maintain updated lists of providers who serve EPSDT recipients. The lists will specify practitioners’ practice limitations, if any…” ¶143: “Defendants must provide periodic dental check ups and needed dental services to relieve pain, restore teeth and maintain dental health for EPSDT recipients. 42U.S.C. §1396d(r)(3)….”

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Exhibit 8

Case 3:93-cv-00065-RAS Document 637-9 Filed 04/27/07 Page 2 of 7 PageID #: 15827

¶190: “EPSDT recipients served by managed care organizations are entitled to timely receipt of the full range of EPSDT services, including but not limited to medical and dental check ups.” ¶197: “TDH will assure by various means that managed care organizations have an adequate supply of appropriate providers who can serve EPSDT recipients (including specialists) located conveniently so that recipients do not face unreasonable 1) delay scheduling appointments, 2) delay waiting for appointments once at the office or 3) travel times to get to the office…” See also Decree ¶¶ 75-87, 89-92, 94-103, 144-69. Citation for Finding of Decree Violation: Frew, 109 F.Supp.2d at 600-11; 626-31; 401 F. Supp.2d at 641; 642, n.32; 656-57; 667; 678-83. IT IS ORDERED: . Care will be provided by an appropriate provider within Defendants’ managed care distance standards (“distance standards”) unless a provider of the appropriate type is not located that close to the class member’s home. For example, some types of sophisticated health care are only provided at large medical centers in major cities, so they simply are not available locally to anyone in sparsely populated areas. Within managed care, Defendants will ensure that the supply of primary care providers (PCPs) enrolled in each Managed Care Organization (“MCO”) and within Primary Care Case Management (“PCCM”) is adequate to allow class members to choose among at least two PCPs appropriate to meet the class members’ needs. • This Order relies on the timeliness and distance standards in Defendants’ current managed care contracts. Defendants may change these standards only if new standards are more favorable to class members. Defendants will not change these standards so that they require class members to travel longer distances or wait longer for appointments than is now true under Defendants’ current contracts. The current standards require that the MCO must ensure that all members have

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access to an age-appropriate PCP in the provider network with an open panel within 30 miles of the member's residence, that all members have access to an outpatient Behavioral Health Service provider in the network within 75 miles of the member's residence, and that all members have access to a network specialist physician within 75 miles of the member's residence for common medical specialties, which, for child members, shall include orthopedics and otolaryngology. • When class members call Defendants or their contractors (including but not limited to the Texas Health Steps (“THSteps”) toll free number, MCOs, PCCM) for help finding a doctor, dentist, case manager or other provider of health care services, whenever possible the caller will be given the names of at least two providers of the appropriate type who are accepting new Medicaid patients of the relevant age at the time of the call, within the timeliness and distance standards required by this Order. • Defendants will comply with federal law concerning the availability of a choice of at least two MCOs in those areas of the state that are served by MCOs. In areas of the state served by PCCM there will be a choice of at least two PCPs. It is understood that federal law allows for short periods in which only one MCO is available in a service delivery area when, for instance, one of the two MCOs in the area is the subject of an enrollment freeze sanction or termination. Similarly, within PCCM, it is understood that in some rural areas of the state there may be only one PCP available. Apart from any pertinent rules pertaining to the Medical Transportation Program, nothing herein will prevent class members or their families from choosing to receive information about or assistance making an appointment with a provider at a greater distance than that specified in this plan. • Defendants’ and their contractors’ payment policies for all providers who serve class members will be consistent with currently accepted professional standards and practices. These policies

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will require coverage of all medically and dentally necessary health care services provided to class members. Payment levels will be sufficient to attract enough providers to serve the class, and comply with the Decree and this Order with respect to all class members, whether or not they are enrolled in managed care. In the 2008-09 biennium,1 for services provided to class members: a) reimbursement rates for dental providers will be increased to 50% above the SFY2006-07 reimbursement rate levels; and b) reimbursement rates for physicians and other professionals will be increased to 25% above SFY 2006-07 levels. Furthermore, another $50 million will be applied toward additional reimbursement increases for specialists who treat class members. No later than September 1, 2007, Defendants and their contractors will adjust provider payment levels as needed to assure compliance with this Corrective Action Order and with the Decree. An additional $150 million will be applied toward strategic initiatives to improve class members’ access to services.2 By July 23, 2007, the parties will begin to confer to determine if they agree on an approach to the use of the strategic initiative funds. Defendants will report on the status of the strategic initiatives in each quarterly report to the Court including an approximation of the number of class members served. A more detailed report will be provided annually in the July quarterly report. • Defendants will make readily available to all providers who serve class members complete, accurate and up to date information about which providers of health care services in each geographic area are accepting new Medicaid-covered patients. The information for each will include: a) type of provider (e.g., general dentist, family medicine physician, pediatric neurologist, physical therapist, case manager); b) with which Medicaid managed care

1 This Order does not address what reimbursement rates will be needed for future years after the 2008-09 biennium. 2 All dollar amounts referenced herein are phrased in terms of general revenues. The total amount to be spent in the

biennium will be substantially larger because of the addition of matching federal funds.

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organizations the provider has contracted; c) whether the provider participates in fee for service Medicaid; and d) practice limitations such as age range of patients accepted. • By Fall 2007, Defendants will initiate their new web-based Provider Look Up system. Defendants expect that the new system will improve the accuracy of their information about Medicaid-enrolled health care providers of all types, because to be able to use the system, providers will be required to update important information on a regular basis. Defendants will use their best efforts to ensure the accuracy of lists of enrolled health care providers in managed care (HMO and PCCM) and fee for service. “Accurate” means that the lists provide accurate and up to date information about each enrolled health care provider, as follows: a) name, b) address, c) telephone number, d) nature of practice (pediatrician, general dentist, pediatric cardiologist, etc.), e) language(s) spoken other than English, f) whether the provider is accepting new patients and any limits on new patients accepted, such as lengthy waits for a first appointment, and g) practice limitations (only newborns, only teens, etc.). Defendants will be able to provide accurate information by specialty and location (for example, endodontists in the Dallas area; pediatricians in Houston, case managers in Region 1). Defendants will use their best efforts to ensure that only accurate information about enrolled health care providers is provided to class members, whether the information is provided by Defendants or by their contractors. Defendants will also use their best efforts to ensure that only accurate information is available by telephone, in writing and on an easy-to-use website for the use of health care providers who serve class members. • Every other year Defendants will conduct a “major assessment” of its Medicaid Provider Base. The assessment will include: a) all of those provider types that provide services to class members; b) for each provider type, the number and percent of providers who are “available” to class members; c) for each provider type, the number and percent of providers who have

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provided any service to any class member; and d) for each provider type, the number of providers who are enrolled in Medicaid but have not provided any services to class members. In this assessment, Defendants will review the six months immediately preceding the start date of the assessment. If the major assessment identifies a shortage in any geographic area of any provider type(s) that provide services to class members, Defendants will develop a plan to address the shortage. The first major assessment will be completed no later than May 2008. The second major assessment will be completed within 24 months of the first major assessment. • In the interim years, Defendants will conduct an “interim assessment” of the sufficiency of its “available” Medicaid Provider Base. The assessment will include the PCPs for class members, pediatricians, general dentists for class members, orthodontists, psychiatrists for class members, and psychologists for class members. If the interim assessment identifies a shortage of providers of any of these types in geographic areas of the state, Defendants will develop a plan to address the shortage. The interim assessments will be completed no later than 12 months after completion of the major assessments. • For the purpose of the “major” and “interim” assessments, “available” means a health care provider who has provided at least one service to at least one new class member in the six months immediately preceding the start date of the assessment. Furthermore, for the purpose of these assessments, Defendants will independently assess whether health care providers are providing services to: a) new class members, and b) any class members. Defendants will not merely accept information on these topics from their contractors. • At their option, Defendants’ Research and Evaluation staff may complete the major and interim assessments.

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• Defendants receive monthly reports about the status of the supply of providers from their PCCM administrator and each of the MCOs. Defendants also compile semi annual reports of the adequacy of provider supplies in PCCM and each MCO by service delivery area. Defendants will provide these reports and information about corrective action plans, if any, in their January and July quarterly reports to the Court. • After Defendants complete two major assessments, and two interim assessments, counsel will confer to determine what, if any, further action is required. Counsel will begin to confer no later than 30 days following completion of the second interim study (“completion”). If the parties agree, they will so report to the Court within 120 days of completion. If the parties cannot agree within 90 days, the dispute will be resolved by the Court upon motion to be filed by either party. If the parties cannot agree, either party may file its motion within 30 days of completion of discussions among counsel.

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 Case 3:93-cv-00065-RAS Document 637-10 Filed 04/27/07 Page 1 of 4 PageID #: 15833

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
PARIS DIVISION

LINDA FREW, et al., Plaintiffs,
v.
ALBERT HAWKINS, et al., Defendants.

§

§

§

§

CIVIL ACTION NO. 3:93CV65

§

SENIOR JUDGE WILLIAM

§

WAYNE JUSTICE

§

CORRECTIVE ACTION ORDER: HEALTH CARE PROVIDER TRAINING

Decree References:

¶107: “Training at Professional Schools Defendants will provide information and facilitate

ongoing training about Medicaid and EPSDT at all relevant professional schools in Texas.

‘Relevant professional schools’ include all schools that train health care providers who could

serve EPSDT recipients. The purpose of this training will be to:

• interest students in serving EPSDT recipients,

• inculcate in students a sense of ethical or social obligation to serve EPSDT recipients,

• show students how to apply to become Medicaid and EPSDT providers, and

• explain how the Medicaid and EPSDT programs work and how to get help with problems.”

¶108: “EPSDT Training Associated with Other High Caliber Training. Defendants will make

staff available to participate in ongoing training in conjunction with appropriate professional

training. ‘Appropriate professional training’ means training about issues that are relevant to the

provision of services to EPSDT recipients, such as how to conduct a medical check up for a

teenager or how to conduct a dental check up for an infant. ‘Appropriate professional training’

will also be of a high caliber to encourage providers to attend.”
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Exhibit 9

Case 3:93-cv-00065-RAS Document 637-10 Filed 04/27/07 Page 2 of 4 PageID #: 15834

See also Decree ¶¶ 104-06, 109-120, 122-142.

Citation for Finding of Decree Violation: Frew, 109 F.Supp.2d at 658-660.

IT IS ORDERED:

• Defendants will provide on-line continuing professional education to Medicaid-enrolled

health care providers, and particularly those who take care of children. The first on-line module

is already in place and in use. It addresses recent changes in screening for newborns. All 16

modules will be online and available for use no later than August of 2007. In their October,

2007 quarterly report, Defendants will report on the status and utilization of each of the modules.

• Data in the quarterly report will include, to the extent possible, and depending on the way the

trainee identifies his or her specialty or sub-specialty in the online registration, the number of

health care providers of various types (pediatrician, family practice doctor, physician assistant,

nurse, pharmacist, etc.) in each region who completed each of the modules.

• Defendants will assess the current practices in Texas dental schools for training of general

dentists to care for children 1 to 3 years of age. To the extent possible, dependent on dental

school cooperation, Defendants, in consultation with the dental schools and dental professional

organizations, will implement a program in all areas of the state to train licensed general dentists

to provide dental checkups for children 1 to 3 years of age. Defendants will arrange for this

training as expeditiously as possible while complying with state and federal law concerning

contracts of this type. If Defendants choose to arrange the training with an entity to which the

contracting laws do not apply, Defendants will begin the training no later than nine months after

entry of the order. Beginning no later than six months after the training begins, Defendants will

include with their quarterly monitoring reports information about dates and locations of these

training events, and how many dentists attend each. Defendants will also track and report how

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many dentists bill for dental services to children age three and under after attending the training. The reports will include the number of children age three and under who receive dental checkups from the newly trained dentists, and the number of children of this age range who receive other dental services from them. • Training required by this corrective action plan and/or the decree will be offered to providers in conjunction with appropriate provider groups, such as the Texas Medical Association, Texas Dental Association, county medical societies, professional nursing associations, etc. To the maximum extent possible it will be offered under circumstances that permit providers to receive continuing professional education credit for completing it. However, individual providers may choose alternate means of completing the training. • All provider training events required by this corrective action plan and/or the decree will provide an opportunity for feedback from providers about the subject matter and methodology of the training. Beginning in 2008, Defendants will compile this feedback and submit a summary of it to the Court and the Plaintiffs annually as an exhibit to their October quarterly monitoring reports. • Defendants will report the number and percent of Medicaid enrolled health care providers who receive training required by the decree. Beginning in 2008, Defendant will report this information to the Court and to Plaintiffs in summary format on an annual basis with an exhibit to the October quarterly reports. To the extent possible, dependent on the way the trainee identifies his or her specialty or sub-specialty in the online registration, the report will be broken down into appropriate groups of professionals, for example, pediatricians, family practice physicians, various specialist physicians, physician assistants, nurse practitioners whose

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licensure permits them to care for class members, dentists, pediatric dentists, pharmacists, mental health professionals, etc. Defendants will reassess this issue on an annual basis. • To the extent consistent with applicable state and federal law and with other contracts, Defendants will recognize providers who complete training about topics covered in this and other Corrective Action Orders and in the Consent Decree. At Defendants’ option, this recognition may include notations on Defendants’ website(s), in online or printed provider directories, and/or other locations Defendants may select.

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 Case 3:93-cv-00065-RAS Document 637-11 Filed 04/27/07 Page 1 of 3 PageID #: 15837

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
PARIS DIVISION

LINDA FREW, et al., Plaintiffs,
v.
ALBERT HAWKINS, et al., Defendants.

§

§

§

§

CIVIL ACTION NO. 3:93CV65

§

SENIOR JUDGE WILLIAM

§

WAYNE JUSTICE

§

CORRECTIVE ACTION ORDER: TOLL FREE NUMBERS

Decree References:

¶247: “Toll-free numbers for EPSDT recipients will be staffed sufficiently by well trained

personnel. Each recipient will receive prompt service by a person who is knowledgeable, helpful

and polite. All calls will be answered promptly absent equipment failure. Equipment will be

adequate so failure results only from circumstances beyond Defendants’ control, such as bad

weather. TDH will make reasonable arrangements to meet the needs of recipients who do not

speak English. No calls may be “answered” by a tape recording during working hours except in

unusual circumstances. ”

See also Decree ¶¶ 2, 3.

Citation for Finding of Decree Violation: Frew, 109 F.Supp.2d at 641-646; 401 F.Supp. 2d at 662.

IT IS ORDERED:

• Within three months of entry of the corrective action plan Order, the following toll free lines

will comply with promptness standards outlined below: Texas Health Steps, Enrollment Broker,

and the Statewide Medicaid Helpline. Within nine months of entry of the corrective action plan

Order, the toll free MTP line will also comply with these standards.

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Exhibit 10

Case 3:93-cv-00065-RAS Document 637-11 Filed 04/27/07 Page 2 of 3 PageID #: 15838
• Promptness standards for Defendants’ toll free numbers are: Equipment will be adequate so that failure results only from circumstances beyond Defendants’ control, such as bad weather, and: a) each call will be answered by a live person within a “maximum average”1 of 300 seconds, even if the call is initially answered by IVR or other equipment; b) the average monthly wait to speak to a live person after the IVR message and conclusion of user selection of menu items will not exceed 60 seconds; c) the maximum abandonment rate each month will not exceed 10%; (d) no more than 2% of calls will be “answered” by busy signals, disconnections, or other technical problems that prevent the caller from receiving help from staff; and e) no calls will be “answered” by “clearing the queue” (i.e., “answering” only to ask callers to call back later or to tell callers staff will contact them later). These standards apply to all toll free numbers, whether they are answered in English or in Spanish. • When Defendants enter into new contracts for provision of toll free number services, the contracts will include these standards. The contracts will be written so that the toll free numbers standards are enforceable and so that Defendants are entitled to reasonably frequent reports about toll free number performance. For this purpose, “new contract” means new, amended and/or renewed contracts with current contractors as well as contracts with new contractors. • Beginning no later than six months after entry of the corrective action plan Order, Defendants will provide toll free number promptness reports to the Court and Plaintiffs with their quarterly reports to the Court. The reports will include monthly data for each toll free number. • In addition, if any toll free number violates any of the above standards for three consecutive months, Defendants will provide daily reports about the toll free number(s) in violation for each

1 The “maximum average” will be computed by adding the maximum waits in queue for each working day of the

month and dividing by the number of working days.

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Corrective Action Order: Toll Free Numbers

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Case 3:93-cv-00065-RAS Document 637-11 Filed 04/27/07 Page 3 of 3 PageID #: 15839
day of the month in which the violation occurs. These reports will be presented in Defendants’ next quarterly report. • Beginning two years from the date of entry of the corrective action orders (“order entry date”), counsel will confer to determine what further action, if any, is required. If the parties agree, they will so report to the Court within 120 days following the second anniversary of the order entry date. If the parties cannot agree within 90 days of the second anniversary of the order entry date, the dispute will be resolved by the Court. If the parties cannot agree, either party may file a motion within 30 days of the completion of discussion among counsel.

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 Case 3:93-cv-00065-RAS Document 637-12 Filed 04/27/07 Page 1 of 5 PageID #: 15840

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
PARIS DIVISION

LINDA FREW, et al., Plaintiffs,
v.
ALBERT HAWKINS, et al., Defendants.

§

§

§

§

CIVIL ACTION NO. 3:93CV65

§

SENIOR JUDGE WILLIAM

§

WAYNE JUSTICE

§

CORRECTIVE ACTION ORDER: TRANSPORTATION PROGRAM Decree References: ¶ 223: “Defendants will conduct annual assessments of the effectiveness of the transportation program…” ¶ 224: “The assessments will be specific and comprehensive enough to validly evaluate the transportation program in each Standard Metropolitan Statistical Area and the rural area in each of the 8 TDH regions. The assessments will determine where services are needed, the amount of services that are needed and if existing services meet the need for transportation assistance.” ¶ 225: “Each assessment will evaluate: • unmet need for transportation assistance; • recipient and provider satisfaction with the transportation program; • the reasons for recipient and provider dissatisfaction with the transportation program; • whether transportation times are reasonable; and • whether recipients missed or did not schedule EPSDT services because of transportation problems, including those attributable to medical transportation program deficiencies.” ¶ 226: “Over time, the results of the evaluations will improve.”

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Exhibit 11

Case 3:93-cv-00065-RAS Document 637-12 Filed 04/27/07 Page 2 of 5 PageID #: 15841

¶ 227: “Defendants’ method for evaluating the transportation system will be subject to Plaintiffs’ approval…” ¶ 228: “Defendants will take corrective action wherever the assessment indicates that transportation services are inadequate. ‘Inadequate’ means problem(s) exist that Defendants can reasonably be expected to correct.” ¶ 229: “Upon completion of each annual transportation assessment, the parties will determine a method to decide where corrective action is needed, how quickly it is needed and what actions will be taken.” See also, Decree ¶¶ 2, 3. Citation to Finding of Decree Violation: Frew, 109 F.Supp.2d at 616-618; 401 F. Supp.2d at 685. Over the past few months, counsel have conferred about Defendants’ proposed assessment of the Medicaid Transportation Program. If properly implemented, the agreed protocols should result in a study that complies with the decree. Defendants are currently contracting with Texas A&M University for this study, as they have in the past. IT IS ORDERED: • Defendants will contract with an independent, external evaluator to conduct the Medical Transportation Program (“MTP”) study required by the decree. The studies will use professionally valid methods of assessment. The MTP study being performed by Texas A&M Public Policy Research Institute is scheduled to yield study results in staggered intervals: November 2007, and then six smaller sample group results spaced one every four months thereafter through 2009 [the “first study”]. Study results will be presented to the Court and Plaintiffs as they are received by Defendants, and a second study will be commissioned no sooner than 12 months after the statewide implementation of the corrective action plan described below and no later than 18 months from the end of the first study.

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• Defendants will draft specifications and requirements for a Request for Proposal ("RFP") for independent evaluating services to conduct the second study. The specifications will include parameters for prospective independent evaluators to use in proposing independent, unbiased, and statistically valid methodologies to conduct the study or studies described in this Corrective Action Plan. • The specifications will emphasize the independence of the evaluator in assessing the areas of study described in this Corrective Action Plan. The independent evaluator should have demonstrated expertise in the particular area of study as evidenced by published studies by either the research team/organization or principle investigator in peer refereed journals. • Defendants will ensure Plaintiffs receive a meaningful opportunity to provide input into the development of the study, including providing Plaintiffs’ counsel draft solicitation documents (including Requests for Information, if any) for review and comment prior to publishing the RFP for public comment and, if required, federal agency approval. Defendants will conduct any procurement for independent evaluation services on a competitive basis in accordance with state and federal requirements and Defendants' policies regarding competitive procurements. • Defendants will be responsible for reviewing the qualifications or all prospective evaluators, evaluating all proposals, and selecting the best qualified evaluator or evaluators whose proposal(s) best meet the requirements of the RFP and supply best value. • Defendants will provide all required information to the independent evaluator(s) on a timely basis, in usable form, and in a manner that protects the privacy of class members and confidentiality of information in compliance with state and federal law, cooperate with the independent evaluator(s) and make timely payment to the evaluator(s) for services properly and timely rendered, as required by the Court’s order or Defendants’ agreement with the evaluator(s).

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Defendants will further require the independent evaluator(s) to provide timely reports of their activities and interim as well as final results of their work. Defendants will periodically report on the status of the independent evaluator’s work to Plaintiffs’ counsel. Completed studies will be provided to the Court as completed by the evaluator(s), without editing or changes by Plaintiffs’ counsel, Defendants or Defendants’ counsel, or anyone acting on their behalf. • Defendants will present their second study to evaluate the effectiveness of the transportation program no later than 36 months after completion of the first study. The second study will be prepared by an independent evaluator, selected in the manner as described above, unless the parties agree otherwise. • Defendants will draft a Medical Transportation Program corrective action plan within six months of receipt of the initial study results in November of 2007. Defendants will develop the plan, which will be subject to the review and input of Plaintiffs. See Decree ¶229. If the parties agree about the plan, Defendants will present it to the Court and Plaintiffs in their next quarterly report. If the parties cannot agree about the plan, Defendants will present the dispute to the Court by motion to be filed within six months of receipt of the initial study results. • Defendants will begin to implement their Medical Transportation Program corrective action plan within three months of its completion or order of the Court, if disputed. They will file progress reports concerning the implementation of the corrective action plans with their January and July quarterly reports each year. • When the two studies are complete, counsel will confer to determine what further action is required, if any. Counsel will begin to confer no later than 30 days following completion of the second study (“completion”). If the parties agree, they will so report to the Court within 120 days of completion. If the parties cannot agree within 90 days of completion, the dispute will be

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resolved by the Court upon motion to be filed by either party. If the parties cannot agree, either party may file its motion within 30 days of completion of discussions among counsel.

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 Case 3:93-cv-00065-WWJ Document 663 Filed 09/05/2007 Page 1 of 58

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
PARIS DIVISION

LINDA FREW, et al., Plaintiffs,
v.
ALBERT HAWKINS, et al., Defendants.

§

§

§

§

Civil Action No.

§

3:93-CA-065 WWJ

§

§

MEMORANDUM OPINION; FINDINGS OF FACT AND CONCLUSIONS OF LAW On July 9, 2007, the Court orally granted the parties' joint motion for entry of an agreed Corrective Action Order, and found that the parties' proposed Corrective Action Order is fair, reasonable and adequate. Ayers v Thompson, 358 F.3d 356, 368 (5th Cir. 2004), cert. denied, 543 U.S. 951 (2004); Fed. R. Civ. P. 23(e)(1)(C); see also David Herr, Manual for Complex Litigation, Fourth § 21.61 (2006). The parties were then asked to submit proposed orders. The Court, having received the parties' proposed findings of fact and conclusions of law, (Docket No. 637, Exs. 1-11) hereby enters this Agreed Corrective Action Order (Order). 1
BRIEF PROCEDURAL HISTORY The Court's previously published decisions outline the procedural history of this case. Frew v Gilbert, 109 F. Supp. 2d 579, 588-89 (E.D. Tex. 2000)(Frew 2000) and Frew v. Hawkins, 401 F. Supp. 2d 619,623-25 (E.D. Tex. 2005)(Frew 2005)(subsequent histories

10ne purpose of the Corrective Action Order is to bring Defendants into compliance with the Consent Decree (Docket No. 135) ("Decree"), which remains in effect. The Court hopes and expects that by complying with the Order, Defendants will also comply with the Decree.
1

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omitted). This brief procedural history simply provides an update of events relevant to the Court's approval of the Corrective Action Order.
Defendants unsuccessfully appealed this Court's denial of their motion to dissolve the Decree in Frew 2005. Frazar v Ladd, 457 F.3d 432 (5th Cir. 2006), cert. denied, 127 S.Ct. I039 (2007). Shortly after the case returned to this Court, Plaintiffs again moved the Court to enter remedial orders; they also filed Revised Proposed Correction Action Plans (Docket No. 607, 609).2 Further, Plaintiffs urged the Court to rule on two pending motions: 1) Plaintiffs' Motion for Sanctions (Docket No. 428), and 2) Plaintiffs' Motion to Extend the Terms of Decree
Paragraphs 284 and 295 (Docket No. 429); see also Docket No. 599.3 The Court permitted
discovery and set Plaintiffs' three motions for hearing on April 9, 2007 (Docket No. 601). Counsel for the parties attended a pre-hearing status conference in Chambers on March
30, 2007. They announced that settlement was possible but not yet achieved. Then, at the April 9, 2007 hearing, counsel announced that the parties had reached a settlement in principle. The Court directed the parties to file a finalized version of a new proposed settlement by April 27, 2007.
On April 16, 2007, the Court ordered notice of the proposed settlement to the class (Docket No. 635). The parties jointly filed their final proposed corrective action order on April 27, 2007 (Docket No. 637). Defendants notified the Court on June 8, 2007, that they had provided notice to the class, as required by the Court's Order (Docket No. 641). On July 9, 2007,
2Plaintiffs' January, 2007 Motion for Corrective Action Orders updated allegations of Decree violations made as early as 1998 (Docket No. 208).
3The Corrective Action Order resolves all of Plaintiffs' Motions, as agreed by the parties. (Docket No. 634).
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this Court held a fairness hearing to determine whether to adopt the parties' proposals as the Court's Corrective Action Order. The Court heard oral testimony from Plaintiffs' witnesses Nicole Carroll, Frank Moore, Ph.D., and Nancy Sue (Suzi) Seale, D.D.S., M.S.D., and Defendants' witnesses Defendant Health and Human Services Commission ("HHSC") Executive Commissioner Albert Hawkins and HHSC Medicaid/CHIP Medical Director, John Hellerstedt, M.D. The Court also admitted into evidence Plaintiffs' modified depositions on written questions from Anne Dunkelberg, Gary Clark, M.D. and Jane Rider, M.D., as well as from Plaintiff Maria Ayala, former Plaintiff Mary Fisher, and parent/guardians G.B., K.C.-D., J.D., J.P. and K.S. In addition, the Court admitted into evidence Plaintiffs' 366 exhibits and Defendants' 38 exhibits. Counsel for both parties urged the Court to adopt the Corrective Action Order. TR 8: 17 - 19 (2007); TR 10:9 - 12; TR 11: 19 - 20 (2007).
The parties asked the Court for a ruling at the end of evidence on July 9, 2007. From the bench, the Court granted the parties' joint motion for entry of an agreed Corrective Action Order and stated that the proposed Corrective Action Order was fair, reasonable and adequate. TR 181 (2007). The Court also ordered the parties to submit proposed orders. See ~ 21, 2003 Notes of the Advisory Committee re Amendments to Fed. R. Civ. P. 23 (e)(1)(C) (hereinafter "Comments"). TR 182 (2007). LEGAL STANDARDS FOR APPROVAL OF A SETTLEMENT IN A CLASS ACTION
This Court has a limited role vis a vis a proposed settlement in a class action. The Court may accept the settlement, reject the settlement and require further negotiations, or reject the settlement and set the case for trial. Evans v JeffD., 475 U.S. 717, 727 (1986). The Court cannot "modify a proposed [settlement order] and order its acceptance over either party's
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objection." /d. Federal Rule of Civil Procedure 23 governs class actions. Although Rule 23 was
amended in 2003, the standards for approval of class action settlements have remained stable for decades. Amended Rule 23(e)(1)(C) states that a class action settlement must be "fair, reasonable, and adequate." The Fifth Circuit's most recent decision on this topic uses the same standard, and that Court has relied on it since at least the 1970s. Ayers, 358 F.3d at 368; Reed v General Motors Corporation, 103 F.2d 170, 172 (5th Cir. 1983); Parker vAnderson, 661 F.2d 1204, 1208-09 (5th Cir. 1982)(and cases cited therein).
In the Fifth Circuit, six factors determine whether a proposed settlement is fair, reasonable and adequate. The factors are:
1. the existence of fraud or collusion behind the settlement; 2. the complexity, expense and likely duration of the litigation; 3. the stage of the proceedings and the amount of discovery completed; 4. the probability of plaintiffs' success on the merits; 5. the range of possible recovery; and 6. opinions of the class counsel, class representatives and absent class members. Ayers, 358 F.3d at 369. These are the same factors that this Court relied on when it approved the Consent Decree in this case in 1996. Fairness Order at 20-34.4
4Plaintiffs' counsel argued that the Court should also consider factors established by In re Prudential Ins. Co. ofAmerica Sales Practices Litigation, 148 F.3d 283, 316-24 (3d Cir. 1998), cert. denied, 525 U.S. 1114 (1999); see Comments~ 20; TR 9:13 to 10:3 (2007). Despite the Comments' reliance on In re Prudential, the Court relies only on Ayers both in its July 9, 2007 oral Order and here because the Fifth Circuit's standards have been consistent over the decades. Further, in the post-2003 Ayers decision, the Fifth Circuit used the same pre-2003
4

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FINDINGS OF FACT The Court makes the following findings of fact: 1. THE EXISTENCE OF FRAUD OR COLLUSION BEHIND THE SETTLEMENT. The proposed Orders are not the product of fraud or collusion. TR 31 :24 - 32: 1; TR 168 (2007); see also Pis.' Ex. 355, ~~ 9-10 (2007). Indeed, the Court need look no further than the highly contentious history of this case. This Court has ruled twice in favor of the Plaintiffs. Frew 2000; Frew 2005. Both times, Defendants appealed and lost. See Frew 2000, Frazar v. Gilbert, 300 F.3d 530 (5th Cir. 2002); Frew v. Hawkins, 540 U.S. 431 (2004); and Frazar v. Ladd, 457 F.3d 432 (2006). The proposed settlement is the product of difficult negotiations. Prior to reaching an agreement in principle on April 9, 2007, Plaintiffs' counsel, Defendants' counsel and Defendants' staff met several times for lengthy negotiations, and also exchanged numerous drafts of the proposals. TR 178 (2007). Negotiations were at arms' length and honest, as the parties had substantially different ideas about how to approach some areas under discussion. Commissioner Hawkins, who was briefed about the negotiations on a regular basis, testified that the intense negotiations addressed a complex subject, and observed that at the beginning, there was a "pretty good distance between the approaches that were laid on the table." TR 132: 3- 4(2007). He averred that Defendants wanted a proposal that was "workable or feasible ... complied with federal ... [and] state laws related to procurements ... that provided good, sound, useful information that could be acted
factors, which indicates that the Court of Appeals saw no reason for change even after the Rule 23 amendments.
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upon." TR 132:7- 11 (2007). Substantial give and take from both sides was required in order to arrive at the proposed
Order currently before the Court. Indeed, when the parties announced settlement to this Court on April 9, 2007, they asked for more time to ensure that the proposed Order was properly drafted. In the ensuing weeks, they exchanged many drafts of the eleven proposals.. TR 131 :17 - 22; 178 (2007).
Overall, the proposed Corrective Action Order, while not perfect, "is practical in nature ... [and] ... reflects a good faith effort on the part of the parties to arrive at a meaningful and constructive plan of action that will benefit Texas' neediest children and youth." Dunkelberg Dep., ~~ 36-37. As Dr. Moore testified, the Corrective Action Orders strike a balance "shaped by reality, by reasonableness and feasibility ... [I]f ... the parties ... actually are able to fulfill their responsibilities, the outcome should be adequate to achieve the remedies that we all seek." TR 33:15-21 (2007). 2. THE COMPLEXITY, EXPENSE AND LIKELY DURATION OF THE LITIGATION.
The parties agree that this case is complex. TR 131:11 (2007). Indeed, as early as the 1996 Fairness Order ("Fairness Order"), the Court recognized that "the problems that prevent class members from receiving needed health care are complex and interrelated ... [and] ... 'multifactorial."' Fairness Order at 14. These sentiments were echoed by Dr. Seale and Dr. Moore. TR 33:22-24 (2007)("on a scale of 1 to 10, real close to 10."); TR 66:13-14 (2007).
Moreover, this Court's lengthy findings of fact in Frew 2000 and Frew 2005 amply demonstrate
factual complexity. These prior findings of Defendants' Decree violations relate directly to the current proceedings because one purpose of the proposed Order is to bring Defendants into
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compliance with the Decree.
The over 360 exhibits presented by Plaintiffs at the July, 2007 hearing further
demonstrate factual complexity. Class counsel explained that Plaintiffs would have presented
Exhibits 1-330 at the April, 2007 hearing if the case had not settled. In addition, Plaintiffs were
prepared to present the live testimony of two fact witnesses and five experts, Gary Clark, M.D.,
Chief of Neurology and Developmental Neuroscience, Department of Pediatrics, Baylor College
of Medicine in Houston, P. Ex. 25 (2007);5 Anne Dunkelberg, Associate Director of the Center
for Public Policy Priorities in Austin, Pis.' Ex. 26 (2007);6 Jose Luna, Jr. M.D., M.B.A.,
D.A.B.F.P., Chief Medical Office, Centro San Vicente in El Paso, Pis.' Ex. 27 (2007); Frank
Moore, Ph.D., Associate Professor, U.T.H.S.C. School of Public Health in San Antonio, Pis.' Ex. 28 (2007);7 Nancy Sue (Suzi) Seale, D.D.S., M.S.D., Chair of the Pediatric Dentistry Department at Baylor College of Dentistry in Dallas, Pis.' Ex. 29 (2007).8
sor. Clark testified by deposition in the July, 2007 hearing. Pis.' Ex. 354. Based on his qualifications stated in Pis.' Ex. 25 and his deposition, the Court determines that Dr. Clark is an expert in pediatrics and pediatric specialty care as they apply to class members, including issues raised in this case relating to class members' access to health care that they need.
6Ms. Dunkelberg testified by deposition in the July, 2007 hearing. Pis.' Ex. 355. In 2005, the Court qualified Ms. Dunkelberg as an expert in "Medicaid policy in Texas as it relates to this case, and the characteristics of the Texas Medicaid population." 6 TR 149 (2005). She remains in that capacity.
7Dr. Moore testified in person at the July, 2007 hearing. In 1995 and 2005, the Court qualified him as an expert in "the field of public health as it pertains to the issues in this lawsuit." 4 TR 34:21- 15 (2005) He remains in that capacity.
8Dr. Seale testified in person at the July, 2007 hearing. She is an expert in "pediatric dentistry, oral health conditions, and problems of children, including members of the class, and barriers that prevent class members from obtaining dental care." 6 TR 59:16-23 (2005); Frew 2000, 109 F. Supp. 2d at 589 n.5. She remains in that capacity.
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Finally, Plaintiffs would have presented the deposition testimony of one expert witness,
Dr. Jane C. Rider, a pediatrician in private practice in San Angelo,9 and four fact witnesses, who
are mothers/grandmothers of class members. 10 Defendants had planned to present more than 70
exhibits and a number of witnesses, including seven experts. 11 The large number of class
members involved is further evidence of factual complexity. The class includes more than 2.8
million indigent children in federal fiscal year 2006. Pis.' Ex. 30 (2007). 12
The case involves many aspects of the health care and support services that this large
group of children requires. See TR 33:25-34:20 (2007). The complexity of this topic is
demonstrated by the fact that the parties propose an eleven-part Corrective Action Order, with
subparts for each of those eleven parts.
9Dr. Rider's March, 2007 deposition and cross-questions are Pis. Ex. 357. Her supplemental deposition discusses the proposed Corrective Action Order. Pis. Ex. 358.
1~e March, 2007 deposition and cross-questions of G.B. are Pis.' Ex. 360 (sealed). In Pis.' Ex. 361 (sealed), G.B. discusses the proposed remedies currently before this Court; the March, 2007 deposition of J.D. of Nacogdoches is Pis.' Ex. 363 (sealed). Her supplemental deposition discusses the proposed Corrective Action Order. Pis.' Ex. 364 (sealed)); J.P. of Abilene and her son have had many, ongoing problems with the Medical Transportation Program (MTP). Pis.' Ex. 365 (sealed)); and K.S. of Argyle (K.S. testified in person before this Court in 2005 and via deposition in 2007), whose two adopted children have serious disabilities, have had trouble obtaining access to mental health care including counselors and psychiatrist, problems with inaccurate referral lists for specialty care, and delays in receipt of medications. Pis.' Ex. 366 (sealed)).
11Defendants' witness list included Dr. Elizabeth Shenkman, Ph.D., Chair of the Department of Epidemiology and Health Policy Research at the University of Florida College of Medicine, and John O'Brien, Director of the Texas Legislative Budget Board, as well DHHS policy officials.
12Piaintiffs' Exhibit 30 is the "CMS-416" Report for 2006. Defendants report, inter alia,
medical checkup and dental service statistics annually to the Centers for Medicare and Medicaid Services ("CMS"), the federal agency responsible for oversight of the Medicaid program, in this report.
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This case is also legally complex, as demonstrated by the two prior appeals. For example, in the first appeal, the Supreme Court had to determine a significant question of Eleventh Amendment immunity. Frew, 540 U.S. 431 (2004). Moreover, had the parties not proposed a settlement, this Court would have confronted the difficult legal task of determining how to remedy decree violations that have existed since at least 2000. At the same time, the Court would have been required to defer when possible to Defendants' reasonable exercise of discretion and their judgment about what approach to take. See, e.g., Milliken v Bradley, 433 U.S. 267, 280-81 ( 1977). Achieving this balance would have been time consuming and difficult.
With respect to the likely duration of the case, this case began in 1993. It has been in active litigation since the Court found violations of the Decree in 2000. Membership in the class, however, depends on age; Medicaid recipients who reach the age of 21 are no longer class members. Over the years of appeals, many former class members have "aged out" of the class. Many never got the benefits of the Decree or health care that they should have received. Other current class members have gone without needed services during the years of appeals. Pls.' Ex. 355 (2007); Dunkelberg Dep., ~ 36. If the Court were to reject the proposed settlement, litigation would continue, including a likely appeal. Many young Texans vulnerable to health problems because of their poverty would reach the age of 21 during the appeal, never having obtained the benefits that this litigation is intended to provide for them. Others still young enough to remain in the class would not receive needed health care, causing suffering or even death. TR 87:21-25 (2007).
The lengthy duration of this case favors approval of the Corrective Action Order. The Corrective Action Order requires Defendants to begin to provide relief now, instead of after the
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conclusion of another lengthy appeal. 3. THE STAGE OF THE PROCEEDINGS AND THE AMOUNT OF DISCOVERY
COMPLETED This case began in 1993. As stated above, this Court found that Defendants were violating the Decree in 2000 and again in 2005. Discovery was already "extensive" when the Court approved the Decree in 1996. Fairness Order at 23. There was extensive discovery in conjunction with the 2000 and 2005 evidentiary hearings, as well as in preparation for the April 2007 hearing. TR 169 (2007). In addition, Defendants file quarterly reports related to their Decree activities, as required by~~ 306-07 of the Decree. They filed their first report in July, 1996 and, apart from a hiatus during the first appeal, have continued to file reports since that time (Docket No. 161 ). TR 169 170 (2007). Moreover, Plaintiffs' counsel have engaged in ongoing, informal discovery, which helped them to stay current on issues related to this case. For example, they have attended Defendants' regularly scheduled public meetings. The extent of discovery is important because it tells the Court whether or not counsel were properly informed before they negotiated a settlement. In re Corrugated Container Antitrust Litigation, 643 F.2d 195, 211 (5th Cir. 1981 ). As early as 1996, the Court had no doubt that Plaintiffs attorney, Susan Zinn, was "well informed about problems with EPSDT [Early and Periodic Screening, Diagnosis, and Treatment ]in Texas and possible solutions." Fairness Order at 24. Dr. Moore and Dr. Seale likewise testified that Plaintiffs' counsel were well-prepared for the 2007 negotiations in this case. According to Dr. Seale, both Plaintiffs' counsel are "very knowledgeable about the needs and issues ... and have put together... a very good plan that
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shows a lot of expertise and ... preparedness." TR 65:5-8 (2007); see also TR 32:2-10 (2007)(Dr. Moore). Indeed, throughout their prosecution of this case, Ms. Zinn and Ms. Swanson have demonstrated their mastery of this case and their knowledge of the class, the barriers that prevent class members from securing proper access to health care through the Medicaid program, possible remedies for those problems, and their likely success in Texas. 4. THE PROBABILITY OF PLAINTIFFS' SUCCESS ON THE MERITS
Plaintiffs' were likely to succeed on the merits. The Court has twice found Defendants in violation of the Decree. Frew 2000; Frew 2005, 401 F. Supp. 2d at 684-85. Moreover, on March 30, 2007, Defendants' lead trial counsel informed the Court that Defendants accepted that they had lost. See also Docket No. 618 at 1-2. However, had this litigation continued, the Court would not only have had to address Defendants' Decree violations, but it would also have had to craft its own remedial orders. In this regard, the success of Plaintiffs' proposed remedial orders was unclear, as the Court would have been required to give deference to Defendants' reasonable judgement ifthey had presented adequate remedial proposals. Milliken, 433 U.S. at 280-81. 13 Moreover, as part of the proposed settlement, the parties agreed to relief concerning Decree sections not discussed in Frew 2000 or Frew 2005. For example, in 2005 this Court did not make any findings about Decree violations related to class members' access to medications or durable medical equipment that class members need. Nonetheless, an entire section of the parties' proposed Order addresses
13The proposed Order, of course, already incorporates Defendants' reasoning and judgment since they agreed to it.
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these issues. Commissioner Hawkins testified that Defendants will be able to hold up their end of the
bargain presented in the Corrective Action Order. TR 133:3-7 (2007). He believes that the Order is "sound ... [and] ... focused on some of the critical needs and issues." TR 133:10- 11 (2007).
Defendants' lead trial counsel pointed out that Defendants can comply with the Order because they had input into its development. It requires Defendants to do things that are possible and that make sense. They support the proposed research/corrective action plan process because they want to develop programs that work. TR 178 (2007). They hope that the research will help them to develop efforts that are effective and have demonstrable results. This approach is "something that works and is efficient. That's what underlies all 11 of these corrective action plans ... We know we can implement them. We believe they will be effective and work. We believe they will bring significant relief to the class." TR 179 (2007). 5. THE RANGE OF POSSIBLE RECOVERY Overarching Issues
Parties give and take to achieve settlements. United States v Armour, 402 U.S. 673, 681 (1971 ). Typically neither Plaintiffs nor Defendants end up with exactly the remedy they would have asked the Court to enter absent the settlement. !d. The question here is whether the proposed Corrective Action Order is fair, reasonable and adequate. This calculus is much more difficult than it would be in a case where damages are at issue. In a damages case, the Court would compare the settlement dollar amount to the maximum dollar amount that could have been achieved at trial. Here, the question is whether the entirety of the eleven-part settlement meets the legal standard.
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The Court begins by reviewing overarching issues concerning the possible range of recovery and the proposed settlement. A discussion of the eleven proposals follows. As previously noted, the problems before the Court are complex. The Corrective Action Order appropriately addresses this complexity because it requires Defendants to make improvements regarding a broad range of problems so that class members can obtain the health care that they
need. See TR 66:14- 16 (2007); see also TR 34:21-35:1 (2007). Indeed, each of the eleven
sub-proposals addresses important topics that require improvement so class members can receive health care that they need and are entitled to receive.
The settlement significantly increases the resources available to Defendants to comply with the Decree and provide services that class members need. Defendants will receive an increase of about 14% in spending for class members in fiscal years 2008-2009. Dunkelberg Dep., ~ 11. Specifically, the legislature has appropriated $706.7 million in general revenue, estimated to be worth over $1 billion if federal matching funds are secured, to implement the proposed corrective action plans for fiscal years 2008-2009.
The proposal also requires studies to determine the extent and likely causes of various problems with Defendants' decree compliance. Defendants will contract with competent, independent researchers to conduct studies about outreach, transportation, medical check-ups and managed care proposals, and, potentially, about case management. Further, the parties must consult about study protocols and researchers, which should encourage ongoing cooperation between them. At the same time, the proposed settlement accommodates Defendants' procurement obligations under federal and state law.
Defendants will not, however, be forced to conduct studies for abstract purposes. Instead,
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once the results are known, Defendants will, if necessary, develop corrective action plans to resolve problems that are identified. This approach of investigation followed by corrective action "is a sound approach in which the involved state agencies essentially can self-regulate to achieve the goals for improvement set out in the consent decree." Dunkelberg Dep., Pis.' Ex. 355; ~ 16. Moreover, Defendants will confer with Plaintiffs' counsel as they develop the plans, which will likely reduce the need for the Court's involvement in these issues.
Dr. Seale commented in favor of the evaluation/corrective process: [One] of the most powerful parts of this whole corrective action plan . . . [is the] pieces that deal with outcome assessment ... [to look] ... at whether we're making a difference. And there's a large component devoted to assessing effectiveness of the programs, looking at the programs and making changes if they need to be made along the way and in tracking change over time and tracking outcomes so we know we're making a difference. TR 67:5- 13 (2007). Per Dr. Seale, this approach is "the most effective way to develop and create ... corrective action plans around a data set that reflects the status of that population
you're going to treat." TR 87:9- 12 (2007). See also TR 132:10- 12 (2007)(Hawkins)(stating
that the evaluation/correction process will produce "good, sound, useful information that can be acted upon.").
In addition, the settlement is a "combination of program changes and funding [that] can be expected to result in substantial improvement in compliance with the consent decree and service to the class members." Dunkelberg Dep., ~ 10. While the proposed Corrective Action Order increases payments to health care professionals, it "does not rely exclusively, or too heavily, on increased fees to achieve its goals. The less-cost-intensive components of the corrective action plans ... are thoughtful, detailed, and targeted at correcting complex systemic
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shortcomings ... which ... are extremely important to the overall impact of the corrective action plans." /d.~ 16; see also TR 35:10- 13; TR 66:18-67:1 (2007).
Each of the eleven proposals requires an "assessment conference." After Defendants complete proposed tasks, counsel will "confer to determine what further action, if any, is required." If they agree, they will report to the Court; if not, the Court will resolve the dispute. Once Defendants comply with that part of the Decree and the related section of the Corrective Action Order, then the Court may terminate that part of the Consent Decree and the Corrective Action Order. Thus, the "assessment conference" process provides a clear potential end point for Defendants' obligations under the Consent Decree. Further, the "assessment conference" encourages cooperation among the parties. Dr. Rider Supplemental Dep., Pls.' Ex. 358, ~ 7 (2007).
The Court hopes that the parties' progress toward compliance with the Decree and the Corrective Action Order will be swift, smooth and complete. The Court further hopes that the parties' cooperative efforts will continue to strengthen over the remaining course of this litigation. 14
Nonetheless, "it is essential that the Court monitor ... Texas' Medicaid problems carefully.... " Dr. Rider Supplemental Dep., Pis.' Ex. 358, ~ 7. The "assessment conference" gives the Court one avenue to monitor compliance with these Orders. Since the Decree remains in effect, Defendants will continue to file quarterly reports to keep the Court apprised of their progress. Decree,~~ 306-07. Also, various sections of the proposed Corrective Action Order
14Dr. Moore and Dr. Seale both commented on the high level of cooperation among the parties at this stage in the case. See also Pls.' Ex. 336 (2007).
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specifically permit judicial involvement if disputes arise. Finally, while the Court hopes that no further judicial review will be necessary until the "assessment conferences," the Decree also still permits the parties to return to Court if needed. Decree,~ 303.
One final overarching issue: the Order must be fair, reasonable and adequate for the entire class. Parker, 667 F.2d at 1211. This class includes more than 2.8 million children. Pis.' Ex. 30 (2007). In a class as large as this where complex equitable relief is at issue, it is possible that different groups within the class will have slightly different concerns. Indeed, the Court would have been surprised if this were not true in this case because children of different ages and different states of health all belong to the class.
The proposals address specific needs of particular subgroups of the class. For example, the outreach proposal addresses "racial and ethnic disparities relating to each form of [proposed] outreach, and may also assess other relevant issues relating to cultural appropriateness." Docket No. 637, Ex.6 at 4. This approach is appropriate in light of disparities in utilization of care based on race and ethnicity. Pls.' Ex. 187 (2007). For example, African-American and Hispanic class members are more likely to lack medical check-ups than are Caucasian class members.
Minority class members are also much more likely than Caucasians to require hospital
care for ambulatory care sensitive conditions. Id. Ambulatory care sensitive conditions are those
that should properly be treated in an outpatient setting like a doctor's office, instead of in the hospital or emergency room; receipt of hospital or emergency room care for ACSCs may indicate inadequate access to outpatient care. Frew 2005, 401 F. Supp. 2d at 679-80.
It is appropriate to address these disparities in the outreach proposal, because outreach helps families to overcome common barriers that prevent class members from obtaining check-
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ups and other services that they need. Decree ~~ 50-51. In addition, the outreach proposal addresses "the causes of missed medical and dental check-ups, and possible ways to improve the effectiveness of outreach efforts." Docket No. 637; Ex. 6 at 6. To be "effective," of course, outreach must be appropriate to the needs of various racial and ethnic groups. 15
Other proposals also address the needs of subgroups. For example, the provider training proposal requires training of general dentists to enable them to care for class members aged 1-3 years. The managed care proposal addresses acceleration of health care services for children whose parents are migrant farmworkers.
CORRECTIVE ACTION PLANS The eleven individual corrective action plans that make up the Corrective Action Order are all reasonable in light of the best possible equitable recovery. A. Adequate Supply of Health Care Providers Proposal Ensuring an adequate supply of health care providers is "the most difficult problem" raised in this case. Fairness Order at 17. The number of class members has increased over the course ofthis case, from about 1.5 million children in 1993 to more than 2.8 million in 2006. Compare Frew 2000, 109 F. Supp. 2d at 587, and Pis.' Ex. 30 (2007)(2006 CMS-416). Despite this increase in the size of the class, Defendants have not succeeded in increasing -or even maintaining- the number of health care providers who take care of class members. For example, the percent of medical doctors in Texas who opened their practices to Medicaid
JSMoreover, according to Dr. Moore, it is possible to overcome these racial and ethnic disparities. A large study showed "almost no" disparity on the basis of race/ethnicity in Medicaid children's receipt of check-ups in California, Georgia and Michigan. Pis.' Ex. 344 at 93 (2007).
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patients dropped from 67% in 2000 to 36% in 2006. Pis.' Ex. 142 (2007). This decrease causes hardship to class members. Parent K.C.-D. is "currently driving over 60 miles to see a pediatrician, because there is no qualified pediatrician in ... [the Floresville] area who
participates in Medicaid." Pis.' Ex. 362, ~ 9 (2007); see also Pis.' Ex. 356, ~ 9 (2007).
The problem rem~ns severe in the area of mental health. See Frew 2000, 109 F. Supp. 2d at 627, 629; Frew 2005, 401 F. Supp. 2d at 679 and n. 105. Regarding Defendants' 2007 training module assessment, one reviewer noted that the
mental health module's [i]nstruction on referral relationships is unrealistic. The module ... make[s] an assumption that it is actually possible to identify behavioral health referrals in all communities. Even where there are providers, there is a high probability that these providers will not be accepting referrals of
... [class members] ... to be identified through this process. This module puts forth an impossible requirement therefore.
Pis.' Ex. 225 at 1 (2007); see also Pls.' Ex. 226-236 (2007).
It is undeniable that there are shortages of many kinds of health care providers, such as doctors, dentists, and mental health professionals for class members. Specialists, in particular tend to locate in urban areas. 1 TR 7:1-8 (2005); 3 TR 196:14-17 (2005); 8 TR 84:7 -11; 84:21 to 85:7 (2005). Further, some class members live in rural areas or poor neighborhoods where many health care providers do not want to practice, or do not want to live. 3 TR 187:2 to 201:14 (2005). Even when there is an adequate supply of health care providers for the total population, not enough health care providers take care of class members.
Defendants recognize that low reimbursements also deter professionals from serving class members, even in urban areas. In January, 2007, Defendants noted that Medicaid reimbursement rates have not increased for years, which raises a "general concern . . . [about] the state's ability
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to maintain a quality provider base . . . (absent] meaningful rate increases . . . ."Pis.' Ex. 148 at 1-2 (2007). Over the course of time, the cost of health care has increased dramatically but Texas Medicaid payments have not kept pace. TR 39: 18 - 21 (2007). Indeed, in 2001,
Defendants noted that "a fee increase may help retain current providers and recruit new providers, allowing more eligible children to receive services." Pis.' Ex. 243 at 4, 22
(2007)(dental). 16 The Provider Supply proposal significantly increases reimbursement rates for health care
providers who take care of class members. This should help attract more professionals to take care ofchildren with Medicaid, which, in turn, should give families more choice among health care providers to take care of class members. If families can choose among professionals, they will choose to take their children to the best ones. Other professionals will either have to improve the quality of their services or go out of business. TR 23:4- 18 (2007). As Ms.
Dunkelberg noted in her deposition:
[T]here are a number of historical examples in which . . . bringing Medicaid rates closer to market rates with a goal of improved access to care . . . [have] made significant gains as a result. On the other hand, the rate increases proposed for medical and professional services to Texas Medicaid beneficiaries under age 21 will still leave rates well below what
16G.B. 's grandson is a class member. He is diagnosed with several psychiatric disorders. They live in Eastland. Pis.' Ex. 350, ~~ 2, 4 (2007). G.B. hopes that the reimbursement increases will mean that "more doctors will join the program" particularly so that her grandson can see his physicians and counselors more often. His "behavior and symptoms have gotten worse since he has been seeing a psychiatrist less often." Pis.' Ex. 361, ~ 7 (2007). Similarly, J.D. is the mother of two class members from Nacogdoches. Her son has back and foot problems and her daughter, despite two nasal surgeries, is unable to breathe through her nose and consequently has chronic sores in her mouth. Pis.' Ex. 363, ~~ 2-7 (2007). J.D. notes a "big shortage of both general and specialist doctors who take Medicaid.." Pis.' Ex. 364, ~~ 6-8 (2007).
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private insurers and (in most cases) Medicare pay for the same care. The proposed increases are not at all extravagant or excessive. It is my opinion that the proposed investment is large enough that we can reasonably expect a measurable improvement in access to care and system performance . . . . Pis.' Ex. 355, ~~ 14-15 (2007); see also TR 40:3 -7 (2007); Pis.' Ex. 356, ~ 9 (2007)(more doctors and dentists will take care of class members if reimbursement increases)(Mary Fisher). Dr. Moore agreed, noting that if "more providers will accept Medicaid . . . that will have a beneficial effect . . . in the way ofincreasing access to the members of the class . . . [A]s we begin to achieve establishing more medical homes and more continuity over time from these providers, . . . that will have a very beneficial effect on population health as well." TR 42:1943:2 (2007). The Court commends Defendants' prompt efforts to implement the new reimbursement
increases. See TR 36:13- 18; 42:11-15 (2007). By the time of the July 9, 2007 hearing,
Defendants were already well along the road toward implementation of increases for reimbursements to physicians/other professionals and dentists. They had made initial proposals, met with Plaintiffs' counsel and considered their views, Pis.' Ex. 340; 348; 350 (2007), proposed new reimbursement levels, Pis.' Ex. 341; 349 (2007), and scheduled an administrative hearing to take public comments on July 10,2007. Pis.' Ex. 342; 351 (2007). Defendants plan to implement the new reimbursement rates on September I, 2007. TR 42:11- 16 (2007).
Dr. Hellerstedt, the Medical Director for the Texas Health and Human Services Commission, also testified about the proposed reimbursement increases. Defendants' Physician Payment Advisory Committee (PPAC) is composed of about 15 members, who are all health care professionals. TR 148 - 149 (2007). PPAC met twice to consider the proposed rate changes. At
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the end of its first meeting, PPAC suggested reimbursement changes and asked Defendants' staff to research the impact that the proposals would have. At the second meeting, PPAC approved proposals for reimbursement increases for 1) physicians/other professionals and 2) dentists. TR 148- 150; 153 (2007); Pis.' Ex. 342, 51 (2007).
(a) Physicians and Other Professionals Dr. Hellerstedt described the six step proposal for physicians and other professionals, as follows: 1. Targeted increases for Texas Health Steps: A. Texas Health Steps medical check-ups: for new patients, the fee will be 100% of
the 2007 Medicare fee; for established patients, the fee will be 92% of the 2007 Medicare fee. In addition to differentiating between payment for new and established patients, this system also differentiates payments based on class members' ages. B. The current administrative fee for Texas Health Steps immunizations will be increased by 60%. 2. Targeted increases for Evaluation and Management Codes: All other evaluation and management codes will be increased by 27.5%. 3. Targeted increases for anesthesia codes: Anesthesiology reimbursement is based on a structure that includes a base rate ("for starting the procedure") and a time factor to account for the different length of time that the same surgery may take for different patients. The base units for anesthesia will be updated to current Medicare units. Also, the two conversion factors specific to anesthesia will be increased by 27.5%.
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Anesthesiologists have "expressed satisfaction with the outcomes" of these increases. 4. Non-Texas Health Steps immunizations: The Texas Health Steps immunizations are
standard immunizations that are universally recommended for children. Some class members also need other immunizations based on specific needs, for example, malaria vaccine for a child traveling to some foreign countries, rabies immunizations and immunoglobulin. The administrative fees for these "non-Texas Health Steps" shots will be increased in the same manner outlined above in Step 2 (60% increase). 5. Targeted increases for specific mental health codes: Defendants used access-based fees for several mental health codes. Access-based fees give special consideration to increase reimbursement when the RVU-based increase is not sufficient. The proposal give access-based increases for psychiatric diagnostic interviews, comprehensive psychological assessments (which are often used to assess the mental health of foster care children) and psychotherapy/psychological counseling. 6. Remaining procedure codes: Several thousand codes are not addressed by Steps one through five. These remaining procedure codes will be updated to 2007 Medicare Relative Value Units and receive a 5% increase to the conversion factor from $27,276 to $28,640. If this change does not result in an increase of at least 5% over the current reimbursement for a specific service, then the fee will be increased by 5% anyway. No fee will increase to more than 150% of current Medicare fees.
See Pls.' Ex. 342 at 7-8 (2007); TR 155-162 (2007).
The Relative Value Units (RVU) system is a standard approach used by many insurers, including Medicare and commercial insurers. TR 151 -52 (2007). It addresses "a very, very
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broad range of medical services." TR 152 (2007). 17 Each medical service/procedure is assigned a "relative value" based on the effort involved. TR 152 (2007). 18 Then each RVU is multiplied by a standard conversion factor to determine the reimbursement to be provided. TR 41 :16 - 24 (2007).
According to Dr. Hellerstedt, updating the RVU system was the "cornerstone" of PPAC's approach to reimbursement increases for physicians and other professionals. TR 150 (2007). Defendants had implemented RVUs in 1992 but had not updated them since then. "[B]y updating the RVUs in the system, we . . . brought those relative values of the various services up to date." TR 1S1 (2007).
The RVU system is "a nationally accepted method for calculating reimbursement." TR 40: 17-18 (2007); see also TR 152- 53 (2007). Physicians are familiar with it and view it as fair. 19 Research demonstrates that physicians are more likely to accept reimbursement structures that they understand and perceive as fair. TR 42:1 - 10 (2007).
Dr. Gary Clark testified by Dep. that the "proposals fairly improve reimbursement for providers." Pis.' Ex. 354, ~ 8 (2007). They are "adequate to encourage more physicians to participate in the Medicaid system in the State of Texas. Further, these proposals should improve access to care for the children of Texas who have Medicaid." /d. ~ 7. Dr. Rider stated
17The RVU system does not address anesthesia. Defendants properly plan to institute a separate approach for anesthesia reimbursements. TR 157 - 158 (2007).
18 "Effort" is determined by three factors: time, support staff/office expense, and insurance costs. TR 40:23 - 41 :7 (2007); TR 152- 53 (2007).
1~otably, the Texas Medical Association endorses the use of the RVU structure for Defendants' reimbursement changes. Defs.' Ex. 38; Pls.' Ex. 343; TR 163- 164 (2007).
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that the reimbursement increases "will prevent further decreases in the supply of doctors available to Medicaid-eligible children. Stabilizing the provider base is essential to making the Medicaid program work, so this is a big step in the right direction." Pis.' Ex. 358, ~ 8 (2007).20
Moreover, the Texas Medical Association (TMA) "strongly endorses" Defendants' approach to the reimbursement increases. Defs.' Ex. 38; Pls.' Ex. 343 (2007). It "will enable physicians who currently limit their Medicaid participation to open their doors to more patients. For those who have quit Medicaid entirely, we are hopeful that some will reconsider taking at
least a few patients each month." /d. Although Defendants and TMA considered other options,
the proposal, per TMA, "is the only one that achieves organized medicine's goal of a measurable,
fair, transparent methodology benefiting both primary and specialty care physicians." /d. The
TMA also opines that the proposed fee schedule for medical check-ups "will entice more primary care physicians to participate in the program and thus promote the TMA goal of creating a 'medical home' for all children." Finally, the proposed methodology is the only one that "can be implemented by September 1, 2007" both in fee for service and managed care programs. Defs.' Ex. 38; Pis.' Ex. 343; see also TR 144:19-21 (2007).
(b) Dental Reimbursement "Dental decay is the most common disease of childhood." TR 87:15 (2007). Research shows that it causes missed school days and loss of sleep. In addition, "it can have long-term health implications. Untreated decay can actually cause severe health problems." TR 87:18- 20
20She is concerned, however, "that the increase will not be enough to draw nonparticipating doctors into the Medicaid program." Nonetheless, she urges approval of the proposed settlement because "it represents such a big improvement over our current situation." Dr. Rider Supplemental Dep., Pis.' Ex. 358, ~ 8 (2007).
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(2007) (Dr. Seale). Evidence shows that "disease of the mouth and gums, can cause disease in other parts of the body. So a healthy mouth is . . . important to a healthy body." TR 88:9- 11 (2007). As Dr. Seale observed, "we should have effective plans . . . to take advantage of the fact that ... [dental disease] can be prevented." TR 88:4-5 (2007). Class members suffer dental disease "in spite of the fact that they . . . should have access to a very broadly based plan of services that should prevent and treat that disease, but it's not happening." TR 62:17- 19 (2007).
Part of the problem is the longstanding, severe shortage of dentists who take care of class members. Frew 2000, 109 F. Supp.2 d at 604; Frew 2005,401 F. Supp. 2d at 656-57. This problem has worsened over the years. In FY 1998, 1,783 dentists were taking care of at least one class member. By the fourth quarter of2007, however, only 1,622 dentists took care of at least one class member. Pis.' Ex. 248 (2007). As Dr. Seale stated, the "number of [class] members is increasing, and the numbers of dentists are dwindling." TR 67:21 - 22 (2007).
As Plaintiff Mary Fisher observed in her deposition: Over the years it has gotten harder and harder to find a dentist who takes Medicaid anywhere close to where I live [in Paris]. Lots of people tell me they have to take their children to Mt. Pleasant, about 50 miles away, to see a dentist. Some have to go even farther. There are dentists in Paris, but they don't take any new Medicaid patients. There used to be a good dentist that people in my neighborhood could walk to, but he doesn't take Medicaid anymore. So now people have to go far away and some of them just can't get there. Pis.' Ex. 356, ~~ 7-8 (2007). Nicole Carroll, who testified in person during the July 9 hearing, lives in Denton. TR 12:9-28: I (2007) Ms. Carroll is the mother of four class members, all of whom have significant
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health problems. TR 14:7-16:6 (2007).21 She has encountered problems obtaining medications, finding doctors who accept Medicaid, and, especially, finding the specialists that they need. She has also experienced problems with the Medical Transportation Program. TR 16:7- 16:24 (2007).
Ms. Carroll also works as a Family Partner at the Denton County Federation of Families, a non-profit organization that works with families whose children have severe mental health problems. Nearly all of Carroll's clients are on Medicaid, and she assists them with problems obtaining health care. TR 12:23- 14:16; 16:25- 17:4 (2007). She testified that in Denton, only one dentist accepts Medicaid. The dentist will not schedule appointments until the children's Medicaid card indicates that a check-up is due. Then there is a delay to get in for an appointment. As a result, Ms. Carroll's children only get dental check-ups every nine or ten months instead of every six months, as they should. TR 19: 10 - 17 (2007).
One reason for the shortage of dentists, according to Dr. Seale, is low dental reimbursements. At the time of the July hearing, 99% of Texas dentists normally billed more than Texas Medicaid pays, and often considerably more. TR 68:6- 12 (2007). Indeed, "many dentists would tell you that . . . the reimbursement rate is less than it costs them to provide the service. So in fact, when they treat Medicaid patients, they're losing money, and that's a huge disincentive for them to participate in the program." TR 68: 14 - 19 (2007).
According to Dr. Seale, if reimbursement rates are increased to a "reasonable level,"
21The health problems confronting Ms. Carroll's children include serious mental health issues (depression, bipolar disease, ADHD, anxiety, and learning disorders) as well as chronic physical conditions (asthma and recurring, chronic ear infections in one case necessitating multiple ear surgeries and, in the other, resulting in a speech delay). TR 14:7 (2007).
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dentists will stay in Medicaid and others will join. TR 68:20; 78:20 (2007). The number of dental appointments available to class members will increase, which hopefully will result in an increase in the number of class members who get dental services, including check-ups. TR 78: 18 -79:1 (2007).
The initial proposal was an across-the-board 50% increase to all dental codes, however, over the course of subsequent negotiations, the parties decided to modify this strategy. TR 74:1-5 (2007); Pls.' Ex. 348 (2007).22 Specifically, Defendants agreed to investigate what would happen if the sum of money that represented the estimated cost of a 50% across-the-board increase in dental rates was instead used to double rates for a set of35 dental codes and services identified by Plaintiffs, with all other rates remaining unchanged.
Dr. Seale testified that the 35 services in question represent the care that is the most important for children. Indeed, at Baylor College of Dentistry in Dallas, the 35 codes represent the full pediatric curriculum for future general dentists. TR 71:6 -72:10 (2007). Dr. Seale testified that doubling the reimbursement rates for the 35 services would be sufficient to "reasonably expect increased participation" by dentists. TR 73 :9 - 11 (2007). The initial list of 35 dental services is very comprehensive. It encompasses "100 percent of the . . . dental needs
22Plaintiffs were advised by a capable group of dentists, including Dr. Seale, two past Presidents of the American Academy of Pediatric Dentistry (both from Texas, Dr. Hunke and Dr. Kennedy), another Texas pediatric dentist with expertise in the Texas Medicaid dental program (Dr. Steinhauer), and Dr. Jim Crall of the University of California at Los Angeles. TR 69:2 - 70: 14 (2007). Dr. Crall is a "highly qualified" expert on Medicaid dental programs. TR 69:14 -70:3; 73:4-7 (2007). The American Dental Association and American Academy of Pediatric Dentistry were also consulted. TR 76:22-77:3 (2007). Plaintiffs were "incredibly fortunate to have ... some of the finest minds in the country to advise us." TR 69:2-6 (2007).
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for about 80 percent of the class members. And for the other 20 percent . . . it would cover

about 80 percent of their needs." TR 72: 15 - 19 (2007). Of course, reimbursement for the

remaining needed services remains at current levels. TR 72:20- 24 (2007).

The 35 codes, however, are not the end of the story. After HHSC rate setting staff

estimated the cost of doubling the 35 codes, they discovered that there would still be funds left

over. TR 74:7-8 (2007). After further consultation with dental organizations, Defendants

proposed to provide increases of varying amounts to 13 additional dental codes. Pis.' Ex. 350,

351 (2007). This addition makes the scope of dental services even more comprehensive and also

improves its acceptability to the Texas Dental Association. TR 74:7-75:2 (2007).n

According to Dr. Seale, targeting reimbursement increases to a limited number of dental

services is a more effective approach than smaller across the board increases.

[W]e're so far behind with the dental reimbursement rates. They were very, very low. And to spread ... [the reimbursements] ... over all the codes, ... dilute[s] it so much that the ... most important codes were only going to come up a small amount. And that wasn't really going to be enough ... incentive to bring in new providers. And by targeting ... the codes that are the most important, most frequently used, we're able to get the reimbursement rates up to a point that we believe we can attract new providers and keep existing providers.

TR 76:5 - 15 (2007).

Indeed,

the

Texas Dental

Association

("TDA'

1 )

and the

Texas Academy of Pediatric

Dentistry ("TAPD") both support the current proposal. Defs.' Ex. 27; Pis.' Ex. 352. According

to the TAPD, the "fee increases for the selected codes will improve access to care for many

Texas Medicaid recipients under the age of21 and encourage increased provider participation.

23Dr. Seale notes that Defendants have been "very cooperative'' concerning the structure for increases to reimbursements for dentists. TR 75:17-24 (2007). "[T]hey've moved quickly. It's been very encouraging." TR 75:24-25.
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With increased participation from providers, a greater number of children with get the dental care they need." ld. The Texas Dental Association agrees: "these changes in reimbursement are likely to substantially increase the number ofdentists who will be willing to participate in Texas
Medicaid." ld; see also TR 81:17- 25 (2007)(dental community "view that these changes will
make an improvement"). TDA and TAPD involvement and endorsement is important Their support may facilitate increased participation in Medicaid by dentists. TR 77:6-9 (2007) (Dr. Seale). The parties and the Court hope that the planned increases in reimbursement to dentists will make more appointments available, so class members can get preventative care and treatment. TR 80: I 0 - 13 (2007). The goal is "a decrease in occurrence and severity [of dental disease] so that ... [fewer] ... children ... are in pain, ..." TR 80:16-7 (2007) (Dr. Seale).
The increases to physician/other professionals and dentists described above are funded for the 2008-2009 biennium. As Commissioner Hawkins explained,
What I can answer with most certainty is that we have the authority to make the expenditures . . . one of the characteristics of the [Medicaid] program is that you develop estimates of the number of persons who might be eligible for the program. And regardless of whether you've included them in your estimates, it is an entitlement program, so we'll provide the services . . . If there is a shortfall in the actual appropriation amount, the legislature is obligated to provide that funding. TP 144:22- 145:13 (2007). The settlement, however, specifically "does not address what reimbursement rates will be needed for future years after the 2008-2009 biennium." Docket No. 637;Ex. 8 at 4 n. 1. This permits adjustment of reimbursement rates if further increases are necessary to improve
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class members' access to necessary health care.24 See TR 43:24-44:7 (Dr. Moore); TR 82:1-7
(Dr. Seale)(2007). Moreover, Defendants will also conduct strategic initiatives to increase class members'
access to services. The parties and counsel have already met to discuss initial plans concerning these initiatives.2s Although there is still much work to do, they hope that the strategic initiatives will help to overcome any shortcomings in reimbursement increases. Defendants will include information about the strategic initiatives including an approximation of the number of class members served in their regular quarterly reports to the Court.
(c) Other Aspects of Adequate Supply of Providers Remedies In addition to the improvements to reimbursements, the Provider Supply proposal includes other provisions to improve class members' access to care that they need. For example, many class members receive their medical care through managed care, including HMOs. Ensuring that the new higher reimbursement rates actually reach the providers is therefore a consideration. Pls.' Ex. 164 (2007). The Adequate Supply of Providers proposal addresses this issue as well: Because under Medicaid Managed Care the health plan, or HMO, not the
24The Court appreciates the legislature's decision to increase funding in the 2008-2009 biennium and hopes that the legislature's positive involvement will extend into the future. Nonetheless, the Court notes that the Consent Decree and Corrective Action Order are directed toward the Defendants. It is they who must comply.
2sDr. Moore attended the parties' meeting to discuss the strategic initiatives. He testified that the parties are "eager to discover the best ways to improve" class members' access to health care that they need. TR 44:22 - 23 (2007). Dr. Seale also attended the meeting. She was skeptical at first, and was pleased and surprised by the cooperation at the meeting. TR 63:7- 64:3 (2007).
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Medicaid program, makes payments to doctors, special efforts must be made to ensure that the HMOs' practices reflect the intent of the corrective action plan. In other words, to improve participation by professionals, the HMOs need to pass on the reimbursement increases to the professionals who take care of the children, and not use the increased funding for other purposes. The proposal should achieve this important goal.
Dunkelberg Dep., Pis.' Ex. 355 ~ 18 (2007).
Moreover, the Adequate Supply of Health Care Providers Proposal is not limited to
reimbursement issues. For example, Defendants have already established timeliness and distance
standards for their managed care programs. The proposal allows Defendants to revise their
guidelines "only if new standards are more favorable to class members." Docket No. 637; Ex. 8
at 2. Thus, Defendants will not change their standards to require class members to travel farther
or wait longer for health care appointments than is true today.26 J.D. testified that distance
standards are very important:
The distance standards ... are better than what we have now in the area my children and I live ... Most of the doctors around [Nacogdoches] do not accept [Medicaid.] Because of that I have had to take my children as far away as Houston, Dallas and Galveston to see doctors and dentists. Sometimes it has just been to far and too hard, so I was not able to make sure they got all the care they needed.
Pis.' Ex. 364; ~ 6 (2007).
The proposal also contains standards to require Defendants to ensure that class members
have a choice among managed care organizations and among health care providers of the
appropriate type. As J.D. further stated,
26Defendants' current standards are based on the Texas Department oflnsurance standards for commercial managed care programs. Dunkelberg Dep., Pis.' Ex. 355, ~ 21 (2007). They require access to an age-appropriate primary care provider with an open panel within 30 miles of a class member's residence, and access to "common" specialists and mental health providers within 75 miles.
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When we do not have any choice of doctors, things do not work well at all for my children. Most of the time I feel that I have no choice but to take them to the emergency room when they are sick . . . Having a choice of doctors is very important for my children . . . I have not gotten checkups for my children because I could not find a doctor that I trusted to do them. Pis.' Ex. 364, ~~ 7-8 (2007); see also Pis.' Ex. 362; ~ 9 (2007)(testimony ofK.C.-D.); see also testimony ofNicole Carroll, supra. Dr. Moore concurs. "[T]he research evidence is clear that choice plays a big role in participation ...[in health care] ... [I]t's very important that the requirements for choice be ... here." TR 46:21-24 (2007). Further, the proposed Order addresses serious problems with Defendants' lists of health care providers who are willing to take care of class members. Frew 2000, 109 F. Supp. 2d at 626; see also Pis.' Ex. 152. (2007) (class members less than 5 years old referred to OB/GYNs); Pis.' Ex. 154 (2007)(referrals to doctor who left town two months before). Because of the lists' inaccuracies, class members have trouble finding appropriate health care providers to take care of them. For example, K.C.-D. testified that Defendants could not "advise [her] regarding available doctors" near her home county. Pis.' Ex. 362, ~ I 0 (2007). The problem is not limited to information about doctors. "[O]ne of the major concerns that class members have is finding dentists who are accepting new patients. For that to happen, we have to have current, accurate, up-to-date lists, not just of people who are on the provider list but who are accepting new patients." TR 82:12- 17 (2007) (Dr. Seale). Moreover, inaccurate lists mean that health care providers are discouraged because they cannot find appropriate specialists to accept referrals of class members. This problem discourages some health care providers from taking care of class members, because they feel that
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they cannot properly discharge their responsibility to their patients for want of timely availability of specialists when they are required. Dunkelberg Dep., Pis.' Ex. 355, ~ 20 (2007); TR 45:9- 18 (2007); TR 82: 8 - 20 (2007).
The Adequate Supply of Health Care Providers proposal requires Defendants to improve their referral information. Dr. Moore testified that this improvement is "absolutely critical." TR 45: 10 (2007). J.D. thinks that this "will make it easier for my children to get care that they need." Pis.' Ex. 364, ~ 9 (2007).27
By the fall of 2007, Defendants will also start their new web-based Provider Look Up system. Provider Look Up will provide round-the-clock referral information. It will also increase the accuracy of Defendants' information about health care providers who take care of class members, because to sign in to use the system, providers will have to update important information on a regular basis.
Also, Defendants will conduct new analyses of the Medicaid Provider Base, which will assist the parties and the Court to assess this important area. "This type of analysis has seldom before been performed in Texas Medicaid and will provide a much needed benchmark for measuring progress and determining where problems remain." Dunkelberg Dep., Pis.' Ex. 35,5 ~
21 (2007); see also Dr. Rider Supplemental Dep., Pis.' Ex. 358, ~ 9 (2007). In addition to
showing how many professionals are actually taking new class member-patients, the studies "should show the impact of the reimbursement increases." TR 43:10- 11 (2007). Following the studies, Defendants will develop plans to remedy shortages of each type of provider in any
27As J.D. observed, "It is hard to get care that my children need when [Defendants] cannot tell me which doctors are taking Medicaid and which are not." Pis.' Ex. 364, ~ 9 (2007)
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geographic area, if any are found.
B. Health Care Provider Training Proposal:
The Health Care Provider Training Proposal contains two key provisions. First, in August 2007, Defendants will implement an on-line continuing professional education program for Medicaid-enrolled health care providers, and especially those who take care of class members. The program will include sixteen training modules. This approach is "practical" and makes "consistent infonnation easily and widely available." Dunkelberg Dep., Pis.' Ex. 355, ~ 26 (2007).
Second, Defendants will begin a training program for licensed general dentists statewide to provide dental checkups for children 1 to 3 years of age. The Court hopes that this new program will improve access to dental care for this underserved group of young class members. As Dr. Seale testified, Texas has too few pediatric dentists to take care of all very young class members. General dentists, however, are often reluctant to see them because dental schools do not train them to do so. Young children "become frightened very easily and then become very uncooperative . . . [T]hat's very off-putting to a general dentist who doesn't have experience." TR 83: 18 - 21 (2007).
According to Dr. Seale, "with a concerted effort," it will be possible to train general dentists to take care of very young class members. TR 84:11- 14 (2007). The procedures that general dentists would perfonn for very young children are "straightforward [and] fairly simple." TR 85:25 (2007).
While there is significant need for increased access to dental care for all class members, the need is quite acute for very young class members. In FY 2006, only 119,343 out of 470,217
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class members received preventive dental care during the 12th to 24th month of life. Pls.' Ex. 30 (2007). The result is costly in tenns of money and poor dental health. In both FY 2005 and 2006, more than 38,000 class members received dental care under general anesthesia, at a cost of almost $33 million in FY 2005 and more than $36 million in FY 2006. Pis.' Ex. 9, Interrogatories 41-42 (2007). This is not only expensive but subjects young children to the risks inherent to the administration of general anesthesia. TR 81 :9 - 11 (2007).
C. Case Management Proposal Case management "plays a vital role in facilitating recipients' access to needed medical,
social, and educational services." Frew 2005, 401 F. Supp. 2d at 667. It is "necessary in order
for some Medicaid-covered children to get all the care that they need." Pis.' Ex. 358, ~ 11 (Dr.
Rider). Plaintiff Ayala, of Edinburg, explained: [A] lot of people really don't know what to do with Medicaid and how to get what their children need, and a Case Manager would be a lot of help . . . Because of this lawsuit, a case manager . . . helped us. She helped me to learn about the transportation program and how to follow up with my children's health care.
Pis.' Ex. 353, ~~ 7-8 (2007); see also Pis.' Ex.361, ~ 6 (2007)(testimony of G.B.). K.C.-D.
agreed: [S]pecial"out of the box" situations ... need this type of support. I am responsible for a foster child who needs a nebulizer. He has been placed [with me] but he no longer has his nebulizer, which he lost the last time he was with his mother. But the Medicaid rules limit how frequently his nebulizer can be replaced. l am hopeful that improved case management will address problems like this, that do not fit the typical pattern.
Pis.' Ex. 362, ~ 8 (2007). Indeed, according to Defendants' survey, families who had case management "reported
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Case 3:93-cv-00065-WWJ Document 663 Filed 09/05/2007 Page 36 of 58
high satisfaction rates with [Children and Pregnant Women's] case management." Pls.' Ex. 281
at 1.28 Almost 70% reported that they "wouldn't know what to do" without it. /d.; see also TR
55:9- 15 (2007).
Despite its effectiveness, case management is underutilized. Frew 2000, 109 F. Supp. 2d at 649; Frew 2005, 401 F. Supp. 2d at 667; see also Pls.'Ex. 9 (Interrogatory 123), 283-287, 291-293, 295, 299 (2007); see also TR 55:20- 56:2 (2007). Further, the number of enrolled and
active case managers is very low. Pls.' Ex. 289, 290, 294 (2007). The proposed case management remedy addresses this problem in several ways. First, Defendants will either contract with and/or hire a sufficient number of case managers to meet class members' needs. Second, Defendants will seek to increase case management utilization by increasing referrals to this important service by other health care providers, in part by educating them about the nature
of the service and how to make referrals. See TR 56:3- 10 (2007).29 The proposal includes
mechanisms to track the success of Defendants' efforts, including tracking of the increases in referrals, and increases in utilization by class members in Texas and in each county.
Finally, the Court hopes that a process of assessment and corrective action will eliminate problems with Defendants' case management efforts. Since case management is "viewed as beneficial and useful by these families; but at the same time, not all the families who might
28CPW case management is the form of case management developed in response to the Decree in this case.
29Defendants' current system only referred 2,571 class members for case management in FY 2006. Pls.' Ex. 68 (2007) (Case Management Referrals). Another impediment to class members' utilization of CPW case management is the lack of information about this helpful
program and the significant confusion that surrounds it. Frew 2000, 109 F. Supp. 2d at 653; Frew 2005,401 F. Supp. 2d at 667.
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benefit from it are receiving it, ... [t]his ... begs for an evaluation of why that might be." TR 55:23- 56:2 (2007). D. Check-up Proposal
The issue whether class members receive "complete" checkups has been a bone of contention between the parties. This corrective action proposal requires a combination of independent studies on the completeness of check-ups coupled with corrective action plans to remedy problems identified by the study. The corrective action plans are properly targeted, for example, to focus on specific managed care programs if incomplete check-ups occur. See Frew 2005, 401 F. Supp. 2d at 683. The research/corrective action plan approach is "critical" because it will help to ensure that as much as possible is achieved in each check-up encounter. It is "important to try to discover what is the completeness of the ... screens during each visit." TR 47:10- 12; 15- 16 (2007). See also Pis.' Ex. 353, ~ 5 (2007). E. Outreach Proposal
The outreach program informs families about services and how to access them. It also provides information about the Medical Transportation Program and assistance with scheduling appointments. Despite ongoing outreach efforts, however, many class members still do not
receive check-ups. Frew 2000, 109 F. Supp. 2d at 601-603, 605; Frew 2005, 401 F. Supp. 2d at
648-49. As Dr. Moore testified, check-up utilization "certainly has lots of room for improvement," with only half of the class served. TR 48:21 - 49:4 (2007). In FY 2006, more than 1.5 million class members did not receive medical check-ups and more than 1.5 million did not receive a dental check-up. Pis.' Ex. 30 (2007)(Class Members Who Lack Medical Check-ups or Preventive Dental Services); Pis.' Ex. 9 (Interrogatory 118 and Attachment 2; Interrogatory
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119 and Attachment 3; Interrogatory 120 and Attachment 4 (2007). Among class members who

had Medicaid for at least seven months of the year, only one in seven obtained two dental check-

ups. TR 79: 1 - 80:4 (2007).

Moreover, the percent of class members who received check-ups varied considerably

from county to county. TR 49:7-8 (2007). For example, in 2005, the medical checkup

participation rate was only .29 (on a scale of zero to one) in Culberson County, but .87 in Titus

County. Pls.' Ex. 33 (Appendix Bat 24, 30 (2007)( 2005 Medical and Dental Statewide

Report)). These disparities continued into 2006. For example, in 2006, the medical check-up

participation rate was only 0.23 in Jeff Davis County, but it was 0.80 in Hidalgo County. Pis.'

Ex. 337 at 16,20 (2007). There is similarly significant variation concerning dental check-ups

from county to county. Pis.' Ex. 33 (dental check-up report).

Underutilization of check-ups is well addressed in the outreach and informing proposal.

The proposal begins with a requirement for research to identify the nature of the problem.

Defendants will contract for an independent evaluation of"outreach and the reasons that class

members miss check-ups." Docket No. 637, Ex. 6 at 2. The study will evaluate a full array of

outreach forms, including the use of media, intensive schoolbased programs, intensive

community based programs, telephone calls following missed check-ups, and written

correspondence following missed check-ups. TR 50:21 - 51 :9 (2007). It is intended to address

basic questions about the impact of Defendants' outreach program, TR 51:12 - 18 (2007), such

as:

•

whether information provided orally is accurate, appropriate, understood and

whether the recipient of the information can act on it to obtain completed check-

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ups;

• the relationship between the type of outreach and subsequent receipt of check-ups;

•

whether outreach identifies barriers that prevent class members from getting

check-ups and/or follow up care, and whether outreach helps families to overcome

barriers;

•

what causes class members to miss check-ups;

•

what can be done to make outreach more effective.

According to Dr. Moore, "there is a national consensus ... that these are the very questions

that we need to be studying" to improve outreach. TR 50:17 -19 (2007). If the study is done

properly, the results will be useful to Defendants and the class, as well as nationally. TR 51:21-

52: I0 (2007). Furthermore, the outreach study will "address racial and ethnic disparities relating

to each form of outreach, and may also assess other relevant issues relating to cultural

appropriateness." Docket No. 687, Ex. 8 at 4.

After the first study is complete, counsel will confer to determine if corrective action is

needed and, if so, what form it should take. Eighteen months later, Defendants will begin the

process to initiate a second study to assess the effectiveness of the corrective action taken.

The outreach and informing proposal also includes other important tasks, such as

improvements in outreach letters, improvements to the Medicaid ID card, 5 TR 171 :11 to 172: 12

(2005); improvements to informing about the underutilized "extra effort" referral program by

Medicaid eligibility workers, which are "not widely used by the State staff," 1 TR 151: 17 - 152:2

(2005), and coordination of outreach messages to avoid conflicting, divergent or unnecessarily

duplicative information. Defendants will also reinstate outreach reports required by Decree ~~

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60-61.
F. Check-up Reports and Plans for Lagging Counties:
Since check-ups are an important part of the Decree, Fairness Order at 6; Frew 2005,
401 F. Supp. 2d at 641, it is important to have accurate information about class members'
utilization of them. This proposal improves Defendants' check-up reports by requiring reports
based on age. Defendants' compliance with this proposal will constitute full compliance with
Decree ~~ 171 and 284 during the time that this Order is in effect. As standards for these studies
have been the subject of contention in the past, Frew, 109 F. Supp. 2d at 612-13, the Court hopes
that the new revised definition of required data will eliminate future disagreements.30
Defendants will also improve their dental check-up reports to help to track Defendants'
"effectiveness in getting the children back in" for periodic dental check-ups. TR 86:12-13
(2007).31 Annual corrective action plans will be devised for each county or
3°For class members over the age of two years, Defendants will report annually the number of class members of each age who receive a medical check-up. They will also report the unadjusted percent of class members of each age who were enrolled for at least 90 days and received a medical check-up in the immediately preceding year.
For class members under the age of two years, because they are entitled to more than one medical check-up in twelve months, Defendants will draw statistically valid samples of class members from birth to six months, six to twelve months, and twelve to twenty-four months. Defendants will determine a) how many medical check-ups the class member should have received based on age and number of months of Medicaid eligibility, (b) whether the class member received each medical check-up due, and c) if not, the number of check-ups that were missed. Defendants will report for each age group the number and percent of class members who a) got all medical check-ups that were due, b) the number and percent who missed one check-up that was due, two check-ups that were due, etc. They will also report patterns or trends in missed medical check-ups, if any exist.
31 They will report a) the number and percent of class members of each age who received one dental check up, and b) the number of class members of each age who are eligible for Medicaid for seven or more consecutive months, as well as the number and percent of this group who received two dental check-ups.
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cluster of counties that lags behind the state average for medical and/or dental check-ups "to encourage improved participation in each lagging county or cluster of counties." Docket No. 637, Ex. 2 at 4. This will help enable class members throughout the state to receive
these important, basic services. See TR 18:21 to 19:9 (2007). G.. Managed Care Proposal
Defendants now implement managed care in all of Texas' 254 counties. Pis.' Ex. 162, 163, 165 (2007). They require many class members to receive their medical care through either
HMOs or a primary care case management program (PCCM). Pis.' Ex. 164 (2007); see Frew 2005,401 F. Supp. 2d at 669-71 for descriptions of these managed care programs.
The managed care proposal includes important standards to protect class members who receive care through Defendants' managed care programs. As an initial matter, Defendants will include most of the proposed improvements in their next round of managed care contracts in 2007. This permits Defendants to make changes in a businesslike manner when they would normally be negotiating changes to managed care requirements. Dunkelberg Dep., Pls.' Ex. 355, ~ 24 (2007). Moreover, since Defendants must implement the changes in 2007, changes will be made reasonably soon.
In three areas described below, Defendants will implement a new system of rewards and sanctions for their managed care programs. For each of the three areas, financial rewards will be available up to the amount of $15 million (All Funds) per year ($45 million total).
Ms. Dunkelberg hopes that the rewards and sanctions will have a positive impact, and particularly that they "will be sufficiently vigorous that [they] cause . . . the HMOs to improve
in these areas." Pis.' Ex. 335, ~ 25 (2007); see also TR 22:23 - 23:3 (2007)(Ms. Carroll).
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The first area subject to rewards and sanctions is medical check-ups. Some class members have had significant problems obtaining medical check-ups within Defendants' managed care programs. Frew 2000, 109 F. Supp. 2d at 622-26; Frew 2005,401 F. Supp. 2d at 678-79. Missed check-ups are a serious problem that can lead to other significant problems. For example, as noted in a 2006 report prepared for Defendants by Dr. Betsy Shenkman of the Institute for Child Health Policy, University of Florida, "[p]reventive care visits that meet the American Academy of Pediatrics (AAP) periodicity schedule are associated with a decrease in avoidable inpatient admissions for infants across various racial and ethnic groups, income levels
and health status." Pis.' Ex. 185 at 23 (2007); see also Pis.' Ex 344 at 94 (2007); Dunkelberg
Dep., Pis.' Ex. 355;,~ 23 (2007). To address managed care barriers to check-ups, Defendants will require their managed
care organizations and PCCM to provide various annual reports about class members' receipt of check-ups. The reports will be provided by service delivery area (HMOs) and by HHSC region (PCCM). Based on these reports and the check-up completeness reports mentioned above, Defendants will develop and implement rewards and sanctions for "high or low rates of checkups and especially complete check-ups." Docket 637, Ex. 5 at 3.
Moreover, some class members get no services at all even though they are enrolled in a managed care program. To find out why this occurs Defendants will contract for an independent, external study of "class members who do not receive any form of health care covered by Defendants' contracts with their managed care organizations." Corrective actions will be taken if warranted, and plans to resolve the "no care" problem may include financial rewards and sanctions. A second "no care" study will be conducted after implementation of any corrective
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action plans with emphasis on the effectiveness of the "no care" corrective action plan. Children of migrant farmworkers ("FWCs") have particular difficulties obtaining health
care because of the confluence of their families' often extreme poverty, their lack of education (including about health care) and related factors. Further, their mobility makes it hard to locate
health care providers when needed and can prevent continuity of care. Frew 2000, 109 F. Supp. 2d at 631-32; see also Pis.' Ex. 219 (2007).
Defendants' managed care organizations have been unable to identify many migrant farmworker class members and have thus failed to accelerate delivery of services to this
vulnerable population. Frew 2000, 109 F. Supp. 2d at 632-34. This problem continues until
today. Pis.' Ex. 9 (Interrogatory 89); Pis.' Ex. 220, 222 (2007). The proposal will rectify this problem by several means. First, in 2007, Defendants will
make "acceleration of services" to FWC enrollees a contract requirement. Docket 637, Ex. 5 at 7. Each Managed Care Organization ("MCO") will be required to report annually about its identification and delivery of services to this group. With these reports, Defendants will learn if each MCO is accelerating services to these class members, including by identifying and cooperating with groups that work with FWC; making appropriate, aggressive efforts to reach each identified FWC to provide timely check-ups and follow up care; maintaining accurate, current lists ofFWC enrollees and maintaining confidentiality of information about FWCs. Frew 2000, 109 F. Supp. 2d at 634 n. 113.
Based on the reports, Defendants will develop and implement rewards and sanctions based on performance. Reports about each HMO in each region will facilitate recognition of good performance and identification ofHMOs that perform poorly, so problems can be rectified
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in the geographic areas where they occur. See Frew 2005, 401 F. Supp. 2d at 683. Furthermore, Defendants will enhance the impact of the rewards and sanctions by posting
timely information about them on their website. Hopefully, this will "encourage the HMOs to improve even more than would occur through the use of the rewards/sanctions alone," and making the information public 11Will also help families to choose the best HMO for their children." Dunkelberg Dep., Pis.' Ex. 355, , 25 (2007).
Finally, Defendants' MCOs will not be pennitted to pass financial sanctions to their contracted health care providers "except on an individual basis ... on the basis of inadequate individual perfonnance," and only after efforts to collaborate with providers to improve perfonnance. Docket 637, Ex. 5 at 9. This requirement should be fair to providers while also improving services to class members by facilitating improvement in services. Dunkleberg Dep., Pis.' Ex. 355, , 25 (2007). H. Prescription and Non-Prescription Medications; Medical Equipment and Supplies Proposal
Modem medicine relies increasingly on medication as a major part of treatment. TR 54:21 - 22 (2007). Federal Medicaid law allows State officials to implement a Preferred Drug List (PDL) program. 42 U.S.C. §1396r-8. Through a POL, State officials may place drugs on a preferred list if they receive cost rebates from manufacturers. See description of POL in Dunkelberg Dep., Pis.' Ex. 355; ,, 27-28 (2007).
In 2005, Defendants initiated a POL. Under the POL system, class members may receive non-preferred drugs that are prescribed, but only with Defendants' prior approval. However, if prior authorization is delayed, federal law requires Defendants to provide a 72-hour emergency
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allotment of non-preferred drugs so that class members are not deprived of needed medicines. When pharmacies fail to follow this rule, class members go without emergency medications.32
Unfortunately, the PDL system remains "confusing to parents and not well understood by many health care providers, including the pharmacies that are supposed to implement it." Dunkelberg Dep., Pis.' Ex. 355, ~ 29 (2007). To rectify this problem, the proposal makes several improvements to the pharmaceutical program, which will be practical and should improve class members' access to medicines prescribed for them. First, Defendants will assist pharmacists to provide the 72-hour emergency allotments. Typically, when class members present prescriptions to be filled, pharmacy staff forward them by computer for Medicaid approval. Pharmacies receive electronic approval or denial within a matter of seconds.
Under the proposal, Defendants will improve their electronic message to pharmacies. When a medication is denied only for lack of prior authorization, the pharmacist will automatically be directed to submit a 72-hour emergency request if the prescribing doctor is not available to request prior approval. "[I]f pharmacists hear about the need to provide a 72-hour supply at the same time they hear about prescription disapprovals it will get their attention. It works in an educational type of framework, which . . . is beneficial." Dr. Rider supplemental
32For example, Ms. Carroll testified that one of her children is allergic to a generic form of a medicine but is not allergic to the name brand. She had difficulties getting prior authorization for a medicine that her child could use. TR 25:8- 11 (2007). Plaintiff Ayala also testified about problems getting medicines for her three sons, even right after surgery. "Sometimes I wouldn't be able to get the medicine right away, and they needed it right away. The pharmacy would call me, sometimes after a couple of days, and I would have to go back to get the medicine .... Sometimes I had to buy the medicines with my own money." Pis.' Ex. 353; ~ 6 (2007); see also Pls.' Ex. 364, ~10 (2007)(testimony of J.D.: "my children just suffered without the medicine they needed for infections and other illness."); Pis.' Ex. 362, ~ 6 (2007) (testimony ofK.C.-D.)
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Dep., Pis.' Ex. 358; ~ 16 (2007). This practical approach "takes advantage of existing technology resources to improve access to drugs." Dunkelberg Dep., Pls.' Ex. 355; ~ 30 (2007). Hopefully, this succinct and timely information will cue pharmacists to provide the 72-hour
medication. In addition, Defendants will mail written information to each Medicaid-contracted
pharmacy to clearly explain the 72-hour prescription policy, particularly as it applies to class members. Defendants will also work with the Texas Pharmacy Association (TPA) to explain the 72-hour policy to TPA members. As K.C.-D. testified:
[I]t's important . . . to educate the pharmacists about the system, so that they realize that they are going to be reimbursed . . . [I]n the past, the pharmacist did not know very much about the Medicaid system, and they weren't willing to stick their neck out. Because of this, children had to go without their medications at times. Pis.' Ex. 362, ~ 7 (2007). Second, Defendants will twice analyze their contracted pharmacies' claims history for 72hour emergency prescriptions. Defendants will begin by identifying pharmacies that, despite high volumes of Medicaid prescriptions in classes that require prior approval, process a) no 72hour emergency prescriptions and b) a lower than expected percent of 72-hour emergency prescriptions. Based on the review, Defendants will provide intensive, targeted education efforts to pharmacies that appear to lack knowledge of the 72-hour emergency prescription policy.n Many doctors and other prescribers do not understand which medicines require prior approval. Pis.' Ex. 355, ~29 (2007)(Dunkelberg Dep.). As a result, they do not know when
33 J.D. commented that it is important to monitor pharmacies. "[T]he Medicaid program is paying these pharmacies to follow the rules., The Medicaid people should make sure the pharmacies really do this. Kids suffer if they do not." Pis.' Ex. 364, ~ 12(2007).
46

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they need to request prior approval before a class member can receive a medicine. To lessen confusion and thereby improve access to medications, Defendants will make available at no charge a Medicaid PDL prescription service to inform prescribers about medicines that require prior approval. The service will be suitable for use by internet or for download to handheld devices that prescribers use.
Barriers also prevent class members from obtaining necessary durable medical equipment. For example, some class members with diabetes have problems obtaining supplies that they need every day, such as lancets and blood testing strips. Pls.' Ex. 65-67 (2007). Similarly, in 2006, despite following all instructions from Defendants, a foster mother could not obtain prescribed nutritional supplements for a class member who, in essence, was starving to death because of a condition known as failure to thrive. Pls.' Ex. 62; 271 (2007). Class members have also reported problems obtaining diapers, incontinence pads and the like. Often the problem arises because the pharmacy that fills the class member's drug prescriptions is not separately contracted with Medicaid as a provider of durable medical equipment and supplies Pls.' Ex. 361, ~ 8 (2007).
To minimize this problem, in early 2008, Defendants will encourage all Medicaidenrolled pharmacies to also enroll to provide durable medical equipment providers. This initiative is intended to facilitate class members' access to durable medical equipment commonly found in pharmacies. Dunkelberg Dep., Pls.' Ex. 355, ~ 32 (2007).34
34In the past, however, class members have had problems with other forms of durable medical equipment, such as obtaining wheelchairs and repairs to wheelchairs. Frew 2000, 109 F. Supp. 2d at 630; Pls.' Ex. 63, 64 (2007). The proposal does not directly address this type of problem. The proposed strengthening of case management, however, should help; case managers should be able to help class members to obtain durable medical equipment not normally found in
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Other initiatives set forth in the proposal include training the HHSC ombudsman's office about the 72-hour medication policy and durable medical equipment issues and encouraging MCOs to train their 24-hour nurse hotlines about the 72-hour medication policy and durable
medical equipment issues.
I. Medical Transportation Program Proposal
Many class members simply cannot use health care services at all without transportation assistance. Frew 2000, 109 F. Supp. 2d at 592. However, the Medical Transportation Program (MTP) has not worked well. For example, Ms. Carroll testified that she personally has had problems with mileage reimbursement and never was reimbursed for all of her travel when her son was hospitalized in the fall of2006. TR 26:1 - 11 (2007). In her work at the Denton Federation of Families, Ms. Carroll has also observed that approximately half of the families whose children are on Medicaid have no transportation or limited transportation (for example, the family has one car which is used for work so the rest of the family lacks transportation during working hours). They must rely on the MTP to get to and from class members' health care appointments. TR 26:17-23 (2007).35
In response to these problems, the transportation proposal further defines the Decree's
pharmacies. Dunkelberg Dep., Pis.' Ex. 355, ~ 33 (2007). 35Similarly, G.B. testified about her grandson, who has frequent emergencies related to
his psychiatric problems. Often Defendants' transportation program cannot meet their needs when appointments are closely spaced in time. Pis.' Ex. 361, ~~ 4, 5 (2007).
J.D. agreed. "lfl cannot get help with medical transportation my children will just not be able to get all the health care they need. And, I know that my family is not the only one." Pis.' Ex. 364, ~ 13 (2007). Indeed, "lots of people ... have to go far away to take their kids to doctors or dentists that take Medicaid. So, the medical transportation program really has to work right if kids are ever going to get any care. Only rich people can pay for lots of gas for their cars right now." Pis.' Ex. 356, ~ 11 (2007)(Mary Fisher).
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requirements for independent evaluations to determine whether the MTP transportation program is "effective.", 223. Research will be followed by corrective action plans developed by Defendants with input from Plaintiffs. Also, the MTP will be transferring from the Texas Department of Transportation to the HHSC at the start of the new fiscal year. The Court hopes that this transfer will improve transportation assistance, which "appears to have suffered under the oversight ofTX DOT." Dunkelberg Dep., Pis.' Ex. 355,, 34 (2007). J. Toll Free Number Proposal
Defendants rely on toll free numbers to inform class members, to assist them to locate health care providers/schedule appointments, and to arrange for transportation to appointments. To achieve these purposes, calls must be answered promptly. Decree, 247. The proposal addresses four of Defendants' toll free numbers: Texas Health Steps, Managed Care Enrollment Broker, Statewide Medicaid Helpline,36 and Transportation (MTP).
Improvement is certainly required. Some class members have had to endure unacceptably long waits on one or more of these toll free lines, and sometimes are "never connected to a representative." Pis.' Ex. 358,, 18 (2007)(testimony of Dr. Rider). See also Pis.' Ex. 362,, 10 (2007)(testimony ofK.C.-D., "I had to wait 45 minutes to an hour on hold, and I was disconnected sometimes."). Callers sometimes hang up because the wait is too long, or try to call on lunch breaks and cannot get through before they have to go back to work. TR 24:3 - 17 (2007). Still others, lacking a telephone, must call from neighbors' phones or from "cheap cell phones that only have so many minutes on them." Pis.' Ex. 356, ,1 0 (2007) (Mary Fisher). When staff do not answer the toll-free lines, parents finally give up, and their children do not get
36Defendants will implement a new toll free state wide Medicaid Helpline. 49

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care. Pis.' Ex. 364, ~ 14 (2007)(testimony of J.D.). "The proposed standards set out in this corrective action plan are badly needed to ensure that callers can reach a live human being within a reasonable amount of time." Dunkelberg Dep., Pis.' Ex. 355, ~ 35 (2007).
In the past, the MTP number has been the source of the most serious violations of the Decree's toll free number standards. Frew 2000, 109 F. Supp. 2d at 639-41. The MTP number continues to have significant problems, with statewide monthly abandonment rates that exceeded 30% in the first three months of 2007, and lengthy average monthly waits in queue that hovered around 7 minutes during that same time frame. Pis.' Ex. 274, 277-80 (2007). Defendants will have nine months to remedy these problems, which is six months longer than is permitted to remedy problems with the other three toll free numbers. Given the longstanding malfunctions of the MTP toll free numbers and the expected transfer of MTP from TX DOT to Defendants, this extra time is reasonable.
Problems are not, however, limited to the MTP toll free numbers. In 2007 there was a significant decline in performance by the Texas Health Steps and Enrollment Broker toll free numbers, with abandonment rates ranging from 15-41% and average speed to answer ranging from 184-1299 seconds. Pis., Ex. I 08 (2007).
The proposal requires: a) adequate equipment that fails only because of circumstances beyond Defendants' control, such as bad weather; b) a monthly maximum average time of 300 seconds for each call to be answered by a live person; c) an average monthly wait to speak with a live person of no more than 60 seconds (after recorded messages and completion of a user selection menu); d) a maximum monthly abandonment rate not to exceed 10%; e) no more than 2% of calls to receive busy signals, disconnections or other problems that prevent the caller from
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reaching staff; and f) no calls may be answered by "clearing the queue," which means callers are asked to call back later or told that staff will return the call.37 Pis.' Ex. 364, ~ 14 (2007); see also TR 24:18-23 (Nicole Carroll)(2007); Pls.' Ex. 364, ~ 14 (2007). K. Health Outcomes Measures and Dental Assessment Proposal
Health outcomes measures serve at least two purposes. They measure "important aspects of the population's health." Docket 637, Ex. 4 at 1. They are also a proxy to indicate "whether [class members] receive the full range of services that they need and are entitled to receive." !d. In Dr. Moore's opinion, outcomes measures assessment is important. It should show if Defendants' efforts are making a difference in class members' health, instead ofjust counting the number of services provided. TR 56: II - 20 (2007).
The outcomes measures proposal requires Defendants to present approximately 12 proposed outcome measures for Plaintiffs' approval and comment, and thereafter report the proposed measures and study methodologies in their quarterly report if the parties agree. Within four months of completion of the first outcome measure study, Defendants are to propose corrective action plans and outcome goals, and Plaintiffs are to respond with comments. The corrective action plans will address methods to achieve the targeted goals for each indicator. "[S]electing and keeping track of health outcomes measures ... will be challenging, but, it needs to be done. It will be worth the time and effort if the methodology for doing it is valid." Pis.' Ex. 358, ~ 14 (2007)(Dr. Rider).
37lf Defendants contract for toll free number service, their new, amended and/or renewed contracts will include these standards. In addition to regular quarterly reports, if any toll free number violates the standards for three months in a row, Defendants will provide daily reports about that toll free number.
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The proposal also requires the parties to cooperate to develop plans for a professional and valid assessment of class members' dental health. The dental study will evaluate the number and percent of class members who "1) have no history of cavities, 2) have untreated cavities, 3) require urgent dental care for pain, infection or bleeding, and 4) require dental care that may potentially include either inpatient hospitalization or outpatient treatment under general anesthesia." Docket No. 637, Ex. 4 at 4.
After completion of the dental study, the parties will cooperatively develop a dental corrective action plan. A second study will follow, as well as a second corrective action plan. According to Dr. Seale, this is an "excellent" approach that assesses "the status ofthat population you're going to treat." TR 87:9; 87:11- 12 (2007). 6. THE OPINIONS OF THE CLASS COUNSEL, CLASS REPRESENTATIVES AND ABSENT CLASS MEMBERS.
Plaintiffs' lead counsel asked the Court to enter the Corrective Action Order and urged that it is fair, reasonable and adequate. TR 8:17 -19; 8:24-25, 167, 175 (2007). She stated that the "relief proposed will provide significant advantages to the class and will help them to receive the care that they need." TR 170 (2007).
Nicole Carroll, the mother of four class members, testified that the proposed Order is fair, reasonable and adequate. TR 27:21-24 (2007).38
K.C.-D. testified in person before this Court in 2005 and by deposition in 2007. 5 TR
38In particular, she testified in favor of the proposals concerning case management, check up reports/lagging counties, medical check-up completeness, outreach, managed care, reimbursement increases to improve the supply of professionals to take care of class members, toll free number standards, medications and transportation.
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173:23 et seq. (2005); Pis.' Ex. 362, ~ 2 (2007). She is a foster mother who frequently cares for class members, and had two class members in her care as foster children at the time of the hearing. Her two sons also have Medicaid and are class members. /d., ~ 1. She testified that "the proposals as a whole are fair, reasonable and adequate. Several of the specific corrective actions will directly address some of the problems I have experienced. I'm very impressed with all of the proposed changes." /d., ~~ 4, 5.39
Present Plaintiff Mary Ayala and former Plaintiff Mary Fisher likewise testified via deposition that they believe the proposed settlement is fair, reasonable, and adequate. Pis.' Exs. 353, ~ 3 and 356, ~~ 6, 13 (2007). Current class member parent/guardians G.B. and J.D. agreed. See P.Exs. 361 ~ 3; 364, ~ 5 (2007). Each commented on particular proposals they believed would benefit their children/grandchildren.
Finally, mother J.D. observed that "the agreement is fair, reasonable and adequate. It may not solve all the problems, but I think it will help a lot." Pis.' Ex. 364, ~5 (2007).40
NOTICE TO CLASS AND COMMENTS OF ABSENT CLASS MEMBERS The Court received 67 written comments from class members as a result ofthe Notice that the Court ordered. Docket No. 635; see also Pis.' Ex. 335 (2007)(Summary Chart of Class

39K.C.-D. specifically commented in favor of the proposals concerning medication and

medical equipment, case management, increased reimbursement to increase the supply of

doctors, outreach, toll free numbers and check-ups. /d. (throughout).

·

40As described above, various non-class member witnesses agreed that the proposed
settlement is "fair, reasonable and adequate." Dr. Clark; Pis.' Ex. 354, ~7 (2007); Dunkelberg, Pis.' Ex. 355, ~4 (2007); Fisher, Pis.' Ex. 356, ~ 6 (2007); Dr. Moore, TR 33:9- 11 (2007); Dr. Rider, Pis.' Ex. 358, ~ 7 (2007); Dr. Seale, TR 66:8- 10 (2007).

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Members Written Comments (2007)) and Pis.' Ex. 359 (2007)(sealed copies of comments).41 These comments followed Notice that the Court ordered on April 16, 2007. Docket No. 635. Defendants assured the Court that notice was provided as the Court
required. Pis.' Ex. 331 (2007); see also Pis.' Ex. 332,333,334 (2007)(copies ofthe notice).
Defendants mailed written notice to each class member with the June, 2007 Medicaid ID cards, using notice language approved by the Court. The notice informed class members that they could submit written comments to the Court, to be postmarked no later than July 2, 2007. The notice also explained that class members could view the proposed Corrective Action Orders in English or Spanish. The proposal was posted on the Court's website, Defendants' website and in each of Defendants' eligibility offices. Docket No. 641; Pis.' Ex. 331 (2007).
As directed by the Court-approved notice, class members sent written comments to Ms. Zinn. Every day, her office date stamped and logged them into Pis.' Ex. 335; 359 (2007). Ms. Zinn mailed written responses to class members who requested further information after they received the notice. The date and nature of responses are noted in Pls.' Ex. 335 (2007). Further, if a class member required assistance, Ms. Zinn forwarded the written request to Defendants' counsel for Defendants' attention and action. Class members did not file any written opposition to the proposed Order. Indeed, the comments reflected curiosity about the case; most of the comments simply requested further information.. Several reported problems or issues related to this case, such as:
41 Comments 66 and 67 were not postmarked by the July 2, 2007 deadline. Docket No. 635, referring to Notice proposed in Joint Brief Concerning Notice. Docket No. 634. The Court considers them because they were received by Plaintiffs' counsel before the July 9, 2007 hearing date. Also, since there are only two tardy comments, and they are both short, it is not a burden for the Court to consider them.
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•

Transportation problems (# 2, 66)

•

High medical bills(# 13)

•

Lack of knowledge about EPSDT (# 12, 30)

•

Children's illnesses(# 32, 44, 66)

•

Check-ups(# 7, 26, 38, 41)

•

Dental care (delays, access problems)(# 7, 50, 66)

•

Medication access (# 60)

•

Class members' receipt of care(# 20, 31, 61)42

Ms. Zinn informed the Court that she received several phone calls about the case from

class members or their parents. Only one opposed the proposed Order because of the length of

time until there could be relief. TR 4:3 - 16; 174 (2007).

Admittedly, it will take some time for class members to see the benefits of some parts of

the Order, in particular, the parts that require research prior to corrective action plans.

Nonetheless, the proposed Order is fair, reasonable and adequate despite the delays resulting

from the studies. First, Defendants will implement important aspects of relief in the very near

future. For example, they are already well underway toward implementing reimbursement

increases to encourage more professionals to take care of class members. They will soon

implement their new computerized information system to advise physicians about which

medications require prior approval. Moreover, Defendants' on-line professional education

program will be in place by August, 2007.

42Two comments are about problems with qualifying for Medicaid. Numbers 36, 47/62 (same person). This case does not address problems with Medicaid eligibility. It addresses problems with services for children who have already qualified for Medicaid.
55

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Furthennore, as Dr. Moore and Dr. Seale testified, the research-evaluation/corrective action plan process is impressive. Ultimately it will benefit class members, if properly implemented, by strengthening Defendants' programs for the class.
Finally, Nicole Carroll testified that although she was initially worried about the length of time required to see improvement, "the sooner we get started implementing this and starting the studies, the sooner we'll get to some actual, real good changes . . . And there are parts of it that are going to be implemented fairly soon as well. So . . . overall it's a very good, solid plan that's going to have some real changes to it." TR 27:10-20 (2007).
CONCLUSIONS OF LAW By definition, settlements are the product of give and take. In the process, parties make concessions and in doing so, give up relief that they may have sought in exchange for other relief that is agreeable to both sides. Reed, 703 F.2d at 174. As a result, courts do not look for perfection when deciding whether to approve settlements in class actions. Instead, this Court must decide whether the proposed Corrective Action Order is fair, reasonable and adequate. Fed .R. Civ. P 23(e)(l)(C). Despite the shortcomings mentioned above, this Court has no hesitation in reaching the decision that the proposed Corrective Action Order surely meets this standard. Above, the Court has already addressed the factors the favor this detennination. To reiterate, however, as a matter of law, Ayers' six factors all weigh in favor of this Court's entry of the Corrective Action Order: I. There was no fraud or collusion behind the settlement; 2. Absent settlement, the litigation would have continued to be complex, expensive,
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and likely of long duration before the class received relief;

3. The Decree has been in effect for more than ten years. This Court found

Defendants in violation of the Decree in 2000 and again in 2005. Frew 2000,

Frew 2005, 401 F. Supp. 2d at 684-85. This proposed settlement represents the

first significant cessation of hostilities between the parties since they jointly urged

entry of the Decree in 1995.

Also, the stage of proceedings, combined with the amount of discovery,

helps to convince the Court to approve the settlement. "The several [hearings]

and appeals that have already occurred in this case have largely resolved the

controlling legal issues. Thus, the parties and the district court possess ample

information with which to evaluate the merits of the competing positions." Ayers,

358 F.3d at 369.

Further, the amount of discovery completed certainly supports approval of

the Order. The Court is confident that class counsel are very familiar with the

circumstances and facts of this case, and that they were skilled in their

negotiations in these proceedings. The Court believes that Plaintiffs' counsel

knew enough to make good decisions concerning the needs of absent class

members and whether or not the proposed Order would meet those needs

properly.

4.

Plaintiffs and the class were quite likely to prevail on the merits of Defendants'

decree violations, given Defendants' concession that they had lost and the

affirmance of the Court's decisions in 2000 and 2005. Nonetheless, Plaintiffs'

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success was less certain on remedial issues, particularly since the Court is required to defer to Defendants' reasoned judgment. Milliken, 433 U.S. at 280-81. 5. Regarding the range of possible recovery, had the Court taken evidence in a disputed hearing in April, 2007, it is unlikely the Court could have devised a better, more practical remedy than the proposed Order currently at issue. This process certainly would have taken more time, contrary to the interests of the class. 6. The opinions of the class counsel, class representatives and absent class members
favor the adoption of the proposed Order. Ayers, 358 F.3d at 369.
After so many years of contention, the Court is impressed by the Parties' cooperative efforts, which are embodied in the Corrective Action Order. The Court concludes that the proposed settlement is fair, reasonable and adequate.
SIGNED thisBay of September, 2007.
~~-ta;¢t~
William Wayne Justice Senior United States District Judge
58

 
 Case 3:93-cv-00065-RAS Document 810 Filed 01/13/11 Page 1 of 3 PageID #: 36692

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

LINDA FREW, et al. Plaintiffs,
v.
THOMAS SUEHS, et al. Defendants.

§ § § § CIVIL ACTION NO. 3:93cv65 § JUDGE RICHARD A. SCHELL § §

ORDER REGARDING DEFENDANTS’ UNOPPOSED MOTION TO MODIFY CONSENT DECREE: CHECKUP LETTERS

Defendants have filed an unopposed motion seeking to modify certain provisions in the Consent Decree that relate to Defendants’ written and oral outreach program for Medicaid class members. Defendants request revisions of paragraphs 17, 35, and 42 of the Consent Decree so that they accurately reflect Defendants’ proposed changes in the outreach program. Defendants believe that the proposed changes will improve their written and oral communications to class members by eliminating overlapping and potentially confusing messages and by more effectively encouraging class members to follow through with their medical and dental check ups.
Having reviewed Defendants’ motion, this Court finds that these changes promote the objectives of the Consent Decree by improving the effectiveness of the message concerning the importance of receiving THSteps medical and dental check ups when they become due, and reducing confusion among parents and caretakers. Defendants have discussed the proposed changes with Plaintiffs’ counsel and the parties have reached agreement on them. Moreover, the Court finds that a fairness hearing is not required, and orders the following changes to the Consent Decree:

Case 3:93-cv-00065-RAS Document 810 Filed 01/13/11 Page 2 of 3 PageID #: 36693
I. Modification of Section 17 The second paragraph of section 17 of the Consent Decree will be replaced with the following language: 17. WRITTEN MATERIALS.
Due Letters. For each class member age three and over, Defendants agree to mail a letter to each class member who is about to be due for a medical and/or dental checkup. Defendants will mail the letter during the month that the checkup is due. Defendants will mail each class member under age three a letter at least every six months. The letter will explain the frequency of medical checkups the class member should have. Defendants will mail a letter to each infant about the first dental checkup two months before the checkup is due.
II. Modifications of Section 35 Section 35 of the Consent Decree will be replaced with the following language:
35. The Texas Health Steps Outreach Unit will offer oral outreach to each class member, age three years and over, who does not receive a medical checkup that is due according to the current Texas Health Steps periodicity schedule. Each class member under three years of age will receive written offers of oral outreach at age 1 month, 6 months, 12 months, 18 months, 24 months, and 30 months.
III. Modifications of Section 42 Section 42 of the Consent Decree will be replaced with the following language:

Case 3:93-cv-00065-RAS Document 810 Filed 01/13/11 Page 3 of 3 PageID #: 36694
42. An outreach letter will be mailed to: 1) each class member who is newly certified; 2) each class member age three years and over for whom no medical check up claim has been received within 150 days of his/her periodic eligibility month; and 3) each class member for whom no dental checkup claim has been received within 150 days of their periodic eligibility month.
Defendants' Unopposed Motion to Modify Consent Decree: Check Up Letters [de #809] is GRANTED.
. SIGNED this the 12th day of January, 2011.
_______________________________ RICHARD A. SCHELL UNITED STATES DISTRICT JUDGE

 
 FOR PRINT PUBICATION

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

LINDA FREW, et al., Plaintiffs,
v.
THOMAS SUEHS, et al., Defendants.

§

§

§

§

Case No. 3:93-cv-00065

§

§

§

MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’ RULE 60(b)(5) MOTION AND MOTION TO STRIKE

Before the court are (1) the “Defendants’ Rule 60(B)(5) Motion to Modify the Health

Outcomes Measures and Dental Assessment Corrective Action Order to Eliminate the

Requirements that Defendants Implement a Corrective Action Plan and Conduct a Second Dental

Assessment” (Dkt. 766) and (2) the “Defendants Motion to Strike Portions of the Testimony of

Drs. Seale, Kennedy, and Nabulsi” (Dkt. 789). For the reasons set forth below, the Defendants’

motions are DENIED.

I. BACKGROUND

A detailed background of this case can be found in previously issued opinions. See Frew

v. Gilbert, 109 F.Supp. 2d 579 (E.D. Tex. 2000); Frazar v. Gilbert, 300 F.3d 530 (5th Cir. 2002);

Frew v. Hawkins, 540 U.S. 431 (2004); Frew v. Hawkins, 401 F.Supp. 2d 619 (E.D. Tex. 2005).

A brief summary of events, however, is appropriate.

On September 1, 1993, the Plaintiffs filed this lawsuit alleging that the Defendants (the

successive commissioners of the Texas Health and Human Services Commission and the Texas

Department of Health) did not adequately provide Early, Periodic, Screening, Diagnosis, and

Page 1 of 15

Treatment (EPSDT) services to Medicaid recipients under the age of 21 as required by the Medicaid Act under Title 42, United States Code, Sections 1396a(a)(43); 1396d(r). In Texas, the EPSDT program is referred to as “Texas Health Steps” and is administered jointly by the federal government and the Texas Health and Human Services Commission. The Plaintiffs structured this case as a class action and defined the class broadly to include all Texas youth eligible to receive Medicaid. The Plaintiffs sought injunctive relief to ensure that the state complied with the Medicaid Act. The primary governing documents in this case are the “Consent Decree” (Dkt. 135) and the “Corrective Action Order” (Dkt. 637). A. The Consent Decree
In July 1995, after extensive settlement negotiations, the parties proposed a Consent Decree (Decree) that was subsequently approved by the court on February 16, 1996 (Dkt. 135). The Decree, in effect, is a court-enforced settlement agreement that sets forth a compliance plan for the State’s EPDST program. See Frew v. Hawkins, 540 U.S. 431, 437 (2004) (“A consent decree ‘embodies an agreement of the parties’ and is also ‘an agreement that the parties desire and expect will be reflected in, and be enforceable as, a judicial decree that is subject to the rules generally applicable to other judgments and decrees.’”) (quoting Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 378 (1992)). The Decree was not intended to resolve all contested issues between the parties. Rather, it was designed to reduce the nature and scope of the litigation. The Decree discusses in detail the areas where the State’s current EPSDT program is deficient, sets goals and requirements for improvements, and establishes deadlines for the State’s implementation of the improvements.
In 1998, the Plaintiffs moved to enforce the Decree, arguing that the Defendants were not
Page 2 of 15

complying with several of the Decree’s provisions (Dkt. 208). Defendants opposed this motion, arguing that their efforts had been sufficient and that, regardless of their efforts, the Eleventh Amendment barred the court from enforcing the Decree. In 2000, this court found that the State had failed to comply with several of the Decree’s provisions and that the Eleventh Amendment did not bar enforcement of the Decree. Frew v. Gilbert, 109 F.Supp. 2d 579 (E.D. Tex. 2000). On appeal the Fifth Circuit disagreed with the court and held that the Eleventh Amendment barred enforcement of elements of the Decree that were not specifically mandated by the Medicaid Act. Frazar v. Gilbert, 300 F.3d 530 (5th Cir. 2002). The U.S. Supreme Court reversed the Fifth Circuit, holding that the Decree was enforceable under the principals of Ex Parte Young, 209 U.S. 123 (1908) in that the Decree addressed federal interests. Frew v. Hawkins, 540 U.S. 431 (2003). The case was remanded to this court for continued oversight. B. Corrective Action Order
In November 2004, the Defendants moved to terminate or alternatively to modify the Decree under Federal Rule of Civil Procedure 60(b)(5) (Dkt. 406). The basis for the Defendants’ motion was that even though they had not yet fulfilled the Decree their efforts had brought them into compliance with the Medicaid Act. The court denied the Defendants’ motion, holding that compliance with the federal law was not the sole object of the Decree. Frew v. Hawkins, 401 F.Supp. 2d 619 (E.D. Tex. 2005). The Defendants’ appeals to the Fifth Circuit and the U.S. Supreme Court were unsuccessful. See Frazar v. Ladd, 457 F.3d 432 (5th Cir. 2006), cert. denied, 549 U.S. 1118 (2007).
The Plaintiffs eventually filed three other motions relating to enforcement of the Decree (Dkts. 607, 429, 428). In 2007, the parties reached an agreement on the pending motions that set
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forth corrective action plans for eleven areas of the EPSDT program that had been addressed in the Decree. The parties filed their proposed agreement with the court on April 27, 2007 (Dkt. 637). The court orally approved the agreement at a July 9, 2007 hearing and subsequently entered the agreement as the Corrective Action Order (CAO) on September 5, 2007 (Dkt. 663).
On April 17, 2009, the case was transferred by the Honorable William Wayne Justice to the undersigned judge (Dkt. 716). II. THE INSTANT MOTIONS
The CAO’s provisions on “Health Outcomes Measures and Dental Assessment” (Dkt. 637-4) required that Defendants propose within four months after entry of the CAO a plan for a valid and professional study to assess class members’ dental health. The CAO also required Defendants to present a dental corrective action plan to Plaintiffs within four months after the completion of the first dental study. Then, within thirty-six months after the parties agree to a corrective action plan, the Defendants are to conduct a second dental study.
These provisions in the CAO are tied to Paragraphs 173 and 174 of the Decree. See Dkt. 637-4, pg. 3 (“Decree References”). Paragraph 173 states that “Defendants will report on dental health outcomes in the EPSDT population,” and Paragraph 174 states that “Defendants will arrange for a study to assess the dental health of the EPSDT population.” Decree (Dkt. 135), pg. 47. These paragraphs from the Decree are noteworthy because the CAO was intended to bring the Defendants into compliance with the Decree. See CAO (Dkt. 663), pg. 1 n.1 (“One purpose of the Corrective Action Order is to bring Defendants into compliance with the Consent Decree . . ., which remains in effect. The Court hopes and expects that by complying with the Order, Defendants will also comply with the Decree.”).
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In July 2008, the parties agreed upon protocols for the first dental study. After completion
of the study the Defendants filed the results with the court on December 31, 2009 (Dkt. 747). The
study was entitled “Assessment of Child Dental Health Status” (Dental Assessment). During a
January 25, 2010 conference call between the parties, the Defendants notified the Plaintiffs that
the Dental Assessment results showed that a dental corrective action plan, as required by the
CAO, was no longer necessary. The Plaintiffs refused to agree that the study supported
eliminating the corrective action plan. On March 30, 2010, the Defendants sent the Plaintiffs a
letter stating that if the parties could not agree by April 16, 2010, that a dental corrective action
plan was no longer necessary then the Defendants would seek resolution from the court. After the
parties were unable to agree on the matter, the Defendants filed this motion on May 27, 2010 (Dkt. 766).1
The Defendants’ motion seeks to modify the CAO by eliminating the requirements for a
dental corrective action plan and a second dental assessment. The Defendants first argue that the
Dental Assessment and other statistical evidence show that the objectives of the
Decree—increasing participation in the Texas EPSDT program and improving class members’
1The Decree provides that if the parties cannot come to an agreement about an issue involving the Decree the parties may request relief from the court after giving the opposing party one month’s written notice. See Paragraph 303 of the Decree (Dkt. 135). The court finds that the Defendants have complied with this provision.
This is not the first time the Defendants have sought relief from provisions in the court’s orders that pertain to the state’s EPSDT dental program. See Frew v. Hawkins, 401 F.Supp. 2d 619, 654-57(E.D. Tex. 2005). Previously, however, the Defendants sought relief not because they had achieved the objectives of the Decree, as they argue in this motion, but because increased participation ratios in the State’s EPSDT dental program and Texas’ high dental service ranking relative to other states rendered the Decree unnecessary. Id. at 654. The court rejected the Defendants’ request, finding that their evidence of improvement lacked merit. Id. at 657.
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dental health—have been achieved and, therefore, corrective action is unnecessary. Specifically, the Defendants argue that the Dental Assessment shows that children enrolled in the Texas EPSDT program experienced dental outcomes that were equal to or better than children not enrolled in the program. They also assert that Texas ranks third in a 2008 state-by-state comparison of EPSDT dental participation rates and that the dental participation rate in the Texas EPSDT program has improved from fourteen percent in 1993 to fifty-eight percent in 2009. Thus, the Defendants argue that with the objectives of the Decree having been achieved, the circumstances have changed for purposes of Rule 60(b)(5) and a dental corrective action plan is no longer necessary.
Next, the Defendants argue that, in addition to there being no need for corrective action, requiring them to implement a dental corrective action plan may “confound” their ability to evaluate the impact of their current efforts to improve the dental health of class members. Finally, the Defendants argue that a second dental assessment is unnecessary because they plan to conduct a second study on their own initiative that will utilize data from the 2012-2013 school year and file the results with the Court.
In response (Dkt. 782), the Plaintiffs make several arguments as to why the court should not relieve the Defendants from the CAO’s requirements for a dental corrective action plan and a second dental assessment. The Plaintiffs argue the following: the Dental Assessment was implemented and reported in a flawed manner; the Defendants’ other statistical evidence actually supports requiring the Defendants to comply with the CAO’s provisions for a dental corrective action and second dental assessment rather than relieving them of those requirements; the results of the Dental Assessment are contrary to other studies and the views of Texas dentists; a one-
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time assessment is not enough to establish that the objectives of the Decree have been attained or that they have been attained in a durable manner; and the corrective action will not “confound” the Defendants’ own efforts to evaluate their dental efforts under the EPSDT program.
In support of their opposition to the Defendants’ motion, the Plaintiffs submitted declarations from Dr. Nancy Sue Seale, Dr. Paul Kennedy III, and Dr. Sari Nabulsi. On April 21, 2010, the Defendants filed a motion to strike portions of these declaration as inadmissable on several grounds (Dkt. 789). The Defendants argue the following: many of Dr. Seale’s opinions are conclusory and are not based upon sufficient, relevant facts and or reliable scientific reasoning; Dr. Seale offered impermissible legal conclusions; Dr. Seale offered unreliable, “anecdotal” evidence; both Dr. Seale and Dr. Kennedy offer opinions based on inaccurate factual data; Dr. Kennedy’s testimony was based largely on his own limited practice experience; and Dr. Nabulsi’s testimony is without sufficient factual and evidentiary support. The Plaintiffs oppose the Defendants’ motion to strike, disputing each of the Defendants’ assertions. III. LEGAL STANDARD
Federal Rule of Civil Procedure 60(b)(5) permits a party to obtain relief from a judgment or order if, among other things, “applying [the judgment or order] prospectively is no longer equitable.” “Rule 60(b)(5) serves a particularly important function in . . . ‘institutional reform litigation’” because “injunctions issued in such cases often remain in force for many years, and the passage of time frequently brings about changed circumstances . . . .” Horne v. Flores, 129 S.Ct. 2579, 2593 (2009). Additionally, “institutional reform injunctions often raise sensitive federalism concerns” because they typically “involve[] areas of core state responsibility” and can have “the effect of dictating state or local budget priorities.” Id. at 2593-94. Further, consent
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decrees can pose risks in that they often “go well beyond what is required” by law and may “‘improperly deprive future officials of their designated legislative and executive powers.’” Id. at 2594 (quoting Frew, 540 U.S. at 441). Thus, “[t]he federal court must exercise its equitable powers to ensure that when the objects of the decree have been attained, responsibility for discharging the State’s obligations is returned promptly to the State and its officials.” Frew, 540 U.S. at 442.
For these reasons, when considering a request to modify a decree or an order in an institutional reform case, such as the instant case, a district court must take a “flexible approach.” Horne, 129 S.Ct. at 2594. A flexible approach allows a party seeking modification under Rule 60(b)(5) to prove less than would be required under a strict reading of Rule 60(b). Frew v. Hawkins, 401 F.Supp. 2d 619, 685 n.113 (E.D. Tex. 2005). Under the flexible standard, a party seeking modification bears the burden of establishing that a significant change in fact or law warrants revision of the decree and that the proposed modification is suitably tailored to the changed circumstances. Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 365, 383 (1992).
The Supreme Court has provided a non-exhaustive list of three changes in factual conditions that may warrant modification of a decree: (1) when “changed factual conditions make compliance with the decree substantially more onerous,” (2) when “a decree proves to be unworkable because of unforeseen obstacles,” or (3) when “enforcement would be detrimental to the public interest.” Rufo, 502 U.S. at 384-85. Changed factual circumstances may also include when the objects of the decree have been attained and a durable remedy has been implemented. Evans v. Fenty, 701 F.Supp. 2d 126, 148 (D.D.C. 2010) (citing Horne, 129 S.Ct. at 2595-96). Once the objects of the decree have been attained and a durable remedy has been implemented,
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“continued enforcement of the order is not only unnecessary, but improper.” Horne, 129 S.Ct. at 2595.2 Thus, for the court to grant their motion to modify, the Defendants must prove that (1) the circumstances have changed since the CAO was implemented, namely, that the Decree’s objectives have been attained and a durable remedy is in place, and (2) the requested relief is suitably tailored to the changed circumstances. IV. ANALYSIS
Mindful of the flexible standard used for modifying consent decrees in institutional reform cases and of the compelling reasons for such a standard as described by the U.S. Supreme Court in Horne, the court is nevertheless unable to conclude that the modification sought by the Defendants is warranted under the present circumstances. Therefore, for the reasons set forth below, the Defendants motion to modify the CAO is denied.
As stated by the Defendants, “the critical question in the Rule 60(b)(5) inquiry in the present case is whether the objectives of Paragraphs 173 and 174 of the Consent Decree— increasing participation in the Texas Health Steps dental health care program and improving class members’ dental health—have been achieved.” Dkt. 766, pg. 10. The Defendants’ primary contention is that the results of the dental assessment and other statistical evidence show that the objectives of the Decree have already been attained and therefore, the circumstances having
2Horne did not address what constitutes a “durable remedy.” One federal court recently described a durable remedy under Horne as a “remedy that gives the Court confidence that defendants will not resume their violations of plaintiff’s constitutional rights once judicial oversight ends.” Evans v. Fenty, 701 F.Supp. 2d 126, 171 (D.D.C. 2010). See also LaShawn A. Ex. Rel. Moore v. Fenty, 701 F.Supp. 2d 84, 111 (D.D.C. 2010) (a remedy is durable if it is “unlikely that the prohibited conditions or actions will recur.”); Consumer Advisory Bd. v. Harvey, No. 2:91-CV-00321, 2009 WL 5792159, at *11 (D. Me. Oct. 9, 2009) (a “durable remedy” is the equivalent of having in place “a mechanism for future compliance.”).
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changed, the CAO’s requirements for a dental corrective action plan and a second dental study are now unnecessary. However, because the court finds that the Defendants have failed to show changes in the dental health of class members over a period of time, the court is unable to conclude that the objectives of the Decree have been attained and, consequently, that the Defendants’ requested relief is warranted.
As noted earlier, the provisions in the CAO from which the Defendants seek relief are tied to Paragraphs 173 and 174 of the Decree. See supra Part II. Paragraph 173 states that “Defendants will report on dental health outcomes in the EPSDT population. If the EPSDT dental program works, the incidence of dental disease in the EPSDT population should decrease over time . . . .” Decree (Dkt. 135), pg. 47 (emphasis added). Paragraph 174 states that “Defendants will arrange for a study to assess the dental health of the EPSDT population. The study will assess changes over time.” Id. (emphasis added). Thus, the Decree requires the Defendants to assess changes in the dental health of class members “over time.”3 The Defendants have not yet fulfilled this requirement. The first dental assessment does not measure changes in the dental health of class members “over time.” As one of the Defendants’ own experts explained, “the survey only provides a snapshot of the situation at one point in time . . . .” Dkt. 787-2 (Declaration of Dr. Gita Mirchandani), pg. 9.
Not only did the parties agree upon language requiring assessment over time, the court finds that assessment over time is the most reliable way in which to judge whether the Decree’s
3 In addition to the Decree’s requirement for assessment “over time,” the CAO includes language suggesting that the appropriate time for judging whether the Decree’s objectives have been met is after the second dental study has been conducted: “[w]hen the two dental studies are complete, counsel will confer to determine what further action, if any, is required.” Dkt. 637-4, pg. 5 (emphasis added).
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objectives have been achieved. Without such an assessment, the court cannot determine with assurance whether the first assessment represents a steadfast trend or an aberration. Acknowledging this as a limitation of the study, the Defendants’ expert stated that “[i]t is very possible that had the survey been undertaken at another point in time, say towards the end of the school year, these children would have been shown to have [different dental health outcomes].” Id. (suggesting that dental health outcomes could have improved if measured at a later date).
Because the Defendants ask the court to eliminate substantive provisions from the parties’ carefully negotiated agreement, even under a flexible standard the court must be assured that the Decree’s objectives have been attained. Unfortunately, because the dental assessment, by itself, provides only a snapshot view of the dental health of class members, the court is unable to draw this conclusion. Accordingly, the court finds that the Defendants’ requested relief is not warranted.
As evidence of changed circumstances, namely, that the objectives of the Decree have been achieved, the Defendants also cite a 2008 state-by-state comparison of EPSDT dental participation rates that ranks Texas third in the nation. Additionally, they claim that dental participation rates in the Texas Health Steps Program have improved from fourteen percent in 1993 to fifty-eight percent in 2009. The Defendants made similar arguments in 2005 that the court rejected, finding the evidence unconvincing. See Frew v. Hawkins, 401 F.Supp. 2d 619, 654-57 (E.D. Tex. 2005). Nevertheless, because the court finds that the Defendants have not proved changed circumstances in the dental health of class members, the court need not decide whether the circumstances have changed with regards to participation rates. In order for the court to grant the Defendants’ requested relief, the court would have to be satisfied that the Defendants
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had attained both objectives of the Decree. In addition to changed circumstances in the dental health of class members and
participation rates, the court must also be convinced that the Defendants have in place a remedy that is durable. See supra Part III. The first dental assessment by itself is not evidence of a durable remedy because it reveals nothing about the sustainability of any progress the Defendants have made. The Defendants must provide evidence that gives the court confidence that the dental health conditions of class members for which the Decree and CAO were meant to remedy will not recur. A single snapshot view of the circumstances combined with statements about the durability of the remedy that are merely conclusory do not suffice. Consequently, the court is unable to conclude that under the present circumstances the Defendants have in place a remedy that is durable.
The Defendants also argue that having to conduct a dental corrective action plan as required by the CAO will “confound” their ability to evaluate their current efforts to improve the dental health of class members. The Defendants do not explain how this argument fits within the standard recognized by the Supreme Court for determining whether to modify an order via Rule 60(b)(5). See supra Part III. Specifically, the Defendants do not explain how their argument constitutes a change of circumstances that would justify modifying the CAO as the Defendants have requested.
Instead, the Defendants argue that they should not have to take corrective action because “[i]t is too soon to evaluate the impact of Defendants’ recent efforts to improve class members’ dental health,” and that “changing direction prematurely could have the unintended consequences of thwarting the benefit of these current and ongoing activities.” Dkt. 766, pg. 16. The court is
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perplexed by this assertion as it seemingly contradicts the Defendants’ primary contention for their requested relief, namely, that the Defendants’ efforts have conclusively achieved the objectives of the Decree. Moreover, in addition to showing that changed circumstances warrant the requested relief, the Defendants must also establish that the proposed relief is suitably tailored or proportionate to the changed circumstances. See supra Part III. The court finds that the Defendants’ requested relief, eliminating the requirement for corrective action altogether, is not suitably tailored to what is essentially a concern about timing.
The Defendants also argue that they are already planning to conduct a second study of the dental health of class members from data collected during the 2012-2013 school year and therefore, a second dental assessment as required by the CAO is unnecessary. Again, the Defendants do not explain how this argument fits within the standard recognized by the U.S. Supreme Court for determining whether to modify an order via Rule 60(b)(5). See supra Part III. Nevertheless, the court finds that this argument lacks merit. The court will not eliminate a provision in the parties carefully negotiated agreement simply because the Defendants are now planning to conduct a similar study on their own initiative. If the Defendants prefer the attributes of the plan they wish to conduct over the study required by the CAO, they are free to negotiate with the Plaintiffs to modify what is required by the CAO.
Finally, the Defendants argue that the corrective action plan should be eliminated because plaintiffs have not “made particular suggestions about either the need for, or details of, a corrective action plan . . . .” Dkt. 787, pg. 2, 9-11. Defendants’ argument is mistaken because the Plaintiffs do not have to prove that the corrective action plan remains necessary. In a Rule 60(b)(5) motion, the burden of establishing that a modification is needed is on the party seeking
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the modification. See supra Part III. Further, under the CAO, the Plaintiffs are not required to make suggestions about a corrective action plan until the Defendants have presented a corrective action plan, which the Defendants have yet to do. Dkt. 637-4, pg. 5.
As explained earlier, the Defendants have also filed a motion to strike portions of the declarations that the Plaintiffs attached to their responses to the instant motion. The Plaintiffs’ declarations contain testimony from experts who, for various reasons, question both the reliability of the first dental assessment and the Defendants’ interpretation of it. The Defendants argue on several grounds that these declarations are inadmissable. See supra Part II. However, because the court’s ruling is based on the snapshot nature of the assessment, rather than the reliability of its findings or how it should be interpreted, the court did not rely on the Plaintiffs’ declarations in making its ruling. Consequently, the court finds that the Defendants’ motion to strike is moot and therefore denied. V. CONCLUSION
Undoubtedly the Defendants have made strides toward improving the dental health of class members, as the Plaintiffs themselves acknowledge. However, even under a flexible standard, the court is unable to conclude under the present circumstances that the objectives of the Decree have been attained and that a corrective action plan and second dental study are no longer necessary. The court finds that the Defendants have not met their burden to prove that their requested relief is warranted. Accordingly, their Rule 60(b)(5) motion to modify (Dkt. 766) is DENIED. In addition, for the reasons set forth above, the Defendants’ motion to strike (Dkt. 789) is also DENIED.
The Defendants are ordered to present a dental corrective action plan to the Plaintiffs
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within 120 days of this order. For the second dental assessment the court urges the parties to agree on all aspects of the study before it is conducted, including the specifics of its implementation. IT IS SO ORDERED.
. SIGNED this the 30th day of March, 2011. _______________________________ RICHARD A. SCHELL UNITED STATES DISTRICT JUDGE
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 Case 3:93-cv-00065-RAS Document 1020 Filed 03/28/13 Page 1 of 17 PageID #: 59554 FOR PRINT PUBLICATION

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

LINDA FREW, et al.

§

Plaintiffs,

§

§

v.

§

§

KYLE L. JANEK, M.D.,

§

Defendants.

§

Case No. 3:93-CV-65

ORDER ON PLAINTIFFS’ MOTION FOR FURTHER ACTION FOLLOWING CORRECTIVE ACTION ORDER: CHECKUP REPORTS & LAGGING COUNTIES &
DEFENDANTS’ MOTION TO MODIFY

Pending before the court is Plaintiffs’ Motion for Further Action Following Corrective

Action Order: Checkup Reports and Plans for Lagging Counties (Dkt. 922), Defendants’

Response (Dkt. 923), and Plaintiffs’ Reply (Dkt. 956); Defendants’ Motion to Modify the

Consent Decree (Dkt. 932), Plaintiffs’ Response (Dkt. 940), Defendants’ Reply (Dkt. 955), and

Plaintiffs’ Sur-reply (Dkt. 959); as well as Defendants’ Motion for Stay of Statewideness Portion

of Consent Decree (Dkt. 953), Plaintiffs’ Response (Dkt. 962), Defendants’ Reply (Dkt. 965),

and Plaintiffs’ Sur-Reply (Dkt. 968). The court held a hearing on January 8, 2013 and heard

argument from the parties on these pending motions. The parties supplemented their briefing

with short letter briefs to address issues that arose during the hearing (Dkts. 994, 999). After

considering the briefing and the arguments of both parties, the court is of the opinion that

Plaintiffs’ Motion for Further Action (Dkt. 922) should be DENIED, Defendants’ Motion to

Modify the Consent Decree (Dkt. 932) should be GRANTED, and Defendants’ Motion to Stay

(Dkt. 953) is DENIED as moot.

1

Case 3:93-cv-00065-RAS Document 1020 Filed 03/28/13 Page 2 of 17 PageID #: 59555

I.

BACKGROUND

A detailed background of this case can be found in previously issued opinions.1 On

September 1, 1993, Plaintiffs filed this lawsuit alleging that Defendants (the successive

commissioners of the Texas Health and Human Services Commission and the Texas Department

of Health) did not adequately provide Early Periodic Screening, Diagnosis and Treatment

(EPSDT) services to Medicaid recipients under the age of twenty-one as required by the

Medicaid Act, Title 42, United States Code, Sections 1396a(a)(43) and 1396d(r). In Texas, the

EPSDT program is referred to as “Texas Health Steps” and is administered jointly by the federal

government and the Texas Health and Human Services Commission. The Plaintiffs structured

this case as a class action and defined the class broadly to include all Texas youth eligible to

receive Medicaid. The Plaintiffs sought injunctive relief to ensure that the state complied with

the Medicaid Act. The primary governing documents in this case are the “Consent Decree” (Dkt.

135) and the “Corrective Action Order” (Dkt. 637).

a. The Consent Decree

In July 1995, after extensive settlement negotiations, the parties proposed a Consent

Decree that was subsequently approved by the court on February 16, 1996 (Dkt. 135). The

Decree is a court-enforced settlement agreement that sets forth a compliance plan for the State’s EPSDT program.2 The Decree was not intended to resolve all the contested issues between the

parties. Rather, it was designed to reduce the nature and scope of the litigation. The Decree

1 See Frew v. Gilbert, 109 F. Supp. 2d 579 (E.D. Tex. 2000); Frazar v. Gilbert, 300 F.3d 530 (5th Cir. 2002); Frew v. Hawkins, 540 U.S. 431 (2004); Frew v. Hawkins, 401 F. Supp. 2d 619 (E.D. Tex. 2005); Frew v. Suehs, 775 F. Supp. 2d 930 (E.D. Tex. 2011). 2 See Frew v. Hawkins, 540 U.S. 431, 437 (2004) (“A consent decree ‘embodies an agreement of the parties’ and is also ‘an agreement that the parties desire and expect will be reflected in, and be enforceable as, a judicial decree that is subject to the rules generally applicable to other judgments and decrees.’”) (quoting Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 378 (1992)).

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discusses in detail the areas in which the State’s EPSDT program was deficient, sets goals and requirements for improvements, and establishes deadlines for the State’s implementation of the improvements.
In 1998, Plaintiffs moved to enforce the Decree, arguing that Defendants were not complying with several of the Decree’s provisions (Dkt. 208). Defendants opposed the motion, arguing that their efforts had been sufficient and that, regardless of their efforts, the Eleventh Amendment barred the court from enforcing the Decree. In 2000, this court held that the State had failed to comply with several of the Decree’s provisions and that the Eleventh Amendment did not bar enforcement of the Decree.3 On appeal, the Fifth Circuit disagreed with the court and held that the Eleventh Amendment barred enforcement of elements of the Decree that were not specifically mandated by the Medicaid Act.4 The U.S. Supreme Court reversed the Fifth Circuit, holding that the Decree was enforceable under the principals of Ex Parte Young, 209 U.S. 123 (1908) because the Decree addressed federal interests.5 The case was remanded to this court for continued oversight.
b. The Corrective Action Orders In November 2004, Defendants moved to terminate or alternatively to modify the Decree under Federal Rule of Civil Procedure 60(b)(5) (Dkt. 406). The basis for Defendants’ motion was that even though they had not yet fulfilled the Decree their efforts had brought them into compliance with the Medicaid Act. The court denied the Defendants’ motion, holding that
3 Frew v. Gilbert, 109 F. Supp. 2d 579 (E.D. Tex. 2000). 4 Frazar v. Gilbert, 300 F.3d 530 (5th Cir. 2002). 5 Frew v. Hawkins, 540 U.S. 431 (2003).
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compliance with the federal law was not the sole object of the Decree.6 Defendants’ appeals to the Fifth Circuit and the U.S. Supreme Court were unsuccessful.7
Plaintiffs eventually filed three other motions relating to enforcement of the Decree (Dkts. 607, 429, 428). In 2007, the parties reached an agreement on the pending motions that set forth corrective action plans for eleven areas of the EPSDT program that had been addressed in the Decree. The parties filed their proposed agreement with the court on April 27, 2007 (Dkt. 637). The court orally approved the agreement at a July 9, 2007 hearing and subsequently entered the agreement as the Corrective Action Order (CAO) on September 5, 2007 (Dkt. 663). On April 17, 2009, the case was transferred by the Honorable William Wayne Justice to the undersigned judge (Dkt. 716).
The Corrective Action Order presently at issue is Dkt. 637-3. It required Defendants to make a series of annual reports regarding the receipt of medical and dental checkups for class members from 2007-2011 and to create and implement corrective action plans for improving service utilization in counties that lagged behind the state average.8 Defendants now represent that they have complied with the obligations set forth in CAO 637-3 and paragraphs 271-281 of the Decree. Plaintiffs disagree and request the court to order Defendants to take further action. II. LEGAL STANDARD
Federal Rule of Civil Procedure Rule 60(b)(5) permits a party to obtain relief from a judgment or order if: (1) the judgment has been satisfied, released, or discharged; (2) it is based on an earlier judgment that has been reversed or vacated; or (3) applying it prospectively is no longer equitable. “Rule 60(b)(5) serves a particularly important function in . . . institutional
6 Frew v. Hawkins, 401 F. Supp. 2d 619 (E.D. Tex. 2005). 7 See Frazar v. Ladd, 457 F.3d 432 (5th Cir. 2006), cert. denied, 549 U.S. 1118 (2007). 8 Corrective Action Order: Check Up Reports and Plans for Lagging Counties, Dkt. 637-3 [hereinafter CAO 637-3].
4

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reform litigation” because “injunctions issued in such cases often remain in force for many years, and the passage of time frequently brings about changed circumstances.”9 Indeed, “institutional reform injunctions often raise sensitive federalism concerns.”10 “Federalism concerns are heightened when, as in these cases, a federal court decree has the effect of dictating state or local budget priorities.”11 Consent decrees often “go well beyond what is required” by underlying statutes and may “improperly deprive future officials of their designated legislative and executive powers.”12 “Where state and local officials inherit overbroad or outdated consent decrees that limit their ability to respond to the priorities and concerns of their constituents, they are constrained in their ability to fulfill their duties as democratically-elected officials.”13 Accordingly, federal courts must “exercise [their] equitable powers to ensure that when the objects of the decree have been attained, responsibility for discharging the State’s obligation is returned promptly to the State and its officials.”14
Courts take a “flexible approach” when considering a motion to modify a decree on the basis that its prospective application would be inequitable.15 Under this approach, a party seeking modification of a decree bears the burden of establishing that (1) a significant change in fact or law warrants revision of the decree; and (2) that the proposed modification is suitably tailored to the changed circumstances.16 For instance, modification of a decree may be justified by a significant change in fact when (1) “changed factual conditions make compliance with the decree substantially more onerous,” (2) “a decree proves to be unworkable because of unforeseen
9 Horne v. Flores, 557 U.S. 433, 448 (2009) (internal quotation marks and citations omitted). 10 Id. 11 Id. 12 Id. at 448-49 (internal quotation marks omitted). 13 Id. at 449-50 (internal quotation marks omitted). 14 Frew v. Hawkins, 540 U.S. 431, 442 (2004). 15 Horne, 557 U.S. at 450. 16 Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 365, 383 (1992).
5

Case 3:93-cv-00065-RAS Document 1020 Filed 03/28/13 Page 6 of 17 PageID #: 59559
obstacles,” or (3) “enforcement would be detrimental to the public interest.”17 Changed factual circumstances may also include when the objects of the decree have been attained and a durable remedy has been implemented.18 A durable remedy is one that “gives the [c]ourt confidence that defendants will not resume their violations of a plaintiff’s constitutional rights once judicial oversight ends.”19 At that point, “continued enforcement of the order is not only unnecessary, but improper” and the court “abuses its discretion when it refuses to modify an injunction or consent decree in light of such changes.”20 III. ANALYSIS
a. Plaintiffs’ Motion for Further Action (Dkt. 922) Plaintiffs’ motion seeks an order from this court requiring Defendants to take further action pursuant to CAO 637-3 by developing proposals to increase utilization rates in lagging counties. Plaintiffs do not identify any specific actions they wish Defendants to implement. Defendants oppose the motion and maintain that they have fulfilled the requirements of CAO 637-3 and should not be required to perform any further acts under its terms. The Medicaid Act provision at issue, 42 U.S.C. § 1396a(a)(1), requires a state plan for medical assistance be “in effect in all political subdivisions of the State, and, if administered by them, be mandatory upon them.”21 To fulfill this requirement, the Consent Decree details a process by which Defendants are obligated to monitor the participation of class members in EPSDT checkups throughout the state, measure participation by county, and develop corrective action plans for counties that lag behind the state average so that participation in those counties
17 Id. at 384-85. 18 Evans v. Fenty, 701 F. Supp. 2d 126, 148 (D.D.C. 2010). 19 Id. at 171. 20 Horne v. Flores, 557 U.S. 433, 447, 450 (2009). 21 42 U.S.C. § 1396a(a)(1).
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Case 3:93-cv-00065-RAS Document 1020 Filed 03/28/13 Page 7 of 17 PageID #: 59560
improves.22 The Decree gives Defendants discretion to use one or more appropriate means to improve participation in lagging counties.23 CAO 637-3 was intended to enforce the “Statewideness” provisions of the Decree by establishing a series of annual reports and corrective action plans that Defendants were required to complete from 2008-2011.
Plaintiffs concede that CAO 637-3 has been satisfied on its terms and no further action is required by Defendants to fulfill their obligations under it.24 Plaintiffs admit that utilization rates in lagging counties have improved but argue that Defendants have not complied with the objectives of the Decree because utilization rates in lagging counties are still low.25 Neither the Decree nor CAO 637-3 identify a specific percentage point increase in utilization rates that Defendants are required to obtain before the court may deem them in compliance with the order. The Decree and the CAO seek improvement in lagging counties. The Decree lists as its objectives “enhancing recipients’ access” and “fostering the improved use of health care services by Texas EPSDT recipients.”26 The Decree further explains that its “Statewideness” provisions (paragraphs 271-281) are “intended to prevent areas of the state from lagging behind even if the percent of recipients who receive services in the state as a whole increases.”27
Plaintiffs’ argument would require the court to create and read into the Decree and the CAO more than what is required by agreed-upon terms. The terms of a consent decree “are arrived at through mutual agreement of the parties” after careful negotiation, and “it is the parties’ agreement that serves as the source of the court’s authority to enter any judgment at
22 Consent Decree ¶¶ 271-281, Dkt. 135. 23 Consent Decree ¶ 281, Dkt. 135. 24 Hr’g Tr. 124:22-25, Jan. 8, 2013. 25 Hr’g Tr. 40:25, Jan. 8, 2013. 26 Consent Decree ¶ 6, Dkt. 135. 27 Consent Decree ¶ 274, Dkt. 135.
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Case 3:93-cv-00065-RAS Document 1020 Filed 03/28/13 Page 8 of 17 PageID #: 59561
all.”28 “Courts should not impose their own terms within a consent decree and should read consent decree terms by their plain meaning.”29 A consent decree embodies agreements reached “after careful negotiation has produced agreement on [its] precise terms.”30 “[W]hen a contract is expressed in unambiguous language, its terms will be given their plain meaning and enforced as written.”31 Plaintiffs agree that Defendants have increased utilization rates, and the court cannot now create additional requirements merely because Plaintiffs are dissatisfied with the results of a process to which they agreed and consented. Neither the Decree nor the CAO indicate how much improvement is required or provide any other basis for the court to order further action by Defendants at this point. Plaintiffs’ belief that Defendants’ could have done more is also insufficient for the court to order any further action based on the terms of CAO 637-3. The Decree explicitly gives Defendants discretion “to use one or more appropriate means to improve participation in each county.”32 The Decree contains no requirements that Defendants utilize all appropriate means or that Plaintiffs maintain final approval over the appropriate means Defendants employ.Defendants have complied with the terms of CAO 637-3, and Plaintiffs’ motion for further action under CAO 637-3 is accordingly DENIED.
b. Defendants’ Rule 60(b)(5) Motion (Dkt. 932) i. Defendants’ have satisfied the terms of the Statewideness portion of the Consent Decree under Rule 60(b)(5).
Defendants move the court to modify the Decree by eliminating the “Statewideness” provisions of the Decree in paragraphs 271-281 under Rule 60(b)(5). Defendants first argue that they have complied with all of the requirements of paragraphs 271-281 through their completion 28 Local No. 93, Intern. Ass’n of Firefighters, AFL-CIO C.L.C. v. City of Cleveland, 478 U.S. 501, 519, 522 (1986). 29 United States v. Alcoa, Inc., 533 F.3d 278, 286 (5th Cir. 2008). 30 Local No. 93, 478 U.S. at 522. 31 United States v. Chromalloy Am. Corp., 158 F.3d 345, 350 (5th Cir. 1998). 32 Consent Decree ¶ 281, Dkt. 135.
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Case 3:93-cv-00065-RAS Document 1020 Filed 03/28/13 Page 9 of 17 PageID #: 59562
of the requirements of CAO 637-3, and therefore the Decree has been satisfied. This court’s previous order makes clear that “[o]nce Defendants comply with that part of the Decree and the related section of the Corrective Action Order, then the court may terminate that part of the Decree and the related section of the Corrective Action Order”33 and that the CAOs were intended to “provide[] a clear potential end point for Defendants’ obligations under the Consent Decree.”34 Defendants reason that if they are in compliance with the terms of the CAO, the Decree, and with the underlying statute, there is no reason to continue this court’s supervision of the dispute.
The Decree’s Statewideness provisions requires Defendants to “annually monitor the percent of recipients who receive EPSDT check ups throughout Texas and locally, and increase the percent of recipients who receive check ups in areas where that percent is low.”35 To do this, Defendants are required to (1) measure the percent of EPSDT recipients who receive medical and dental checkups, (2) develop a statistically valid method to determine which counties lag behind the state average in percentage of recipients who receive the checkups to which they are entitled, (3) complete an annual analysis and identify the counties that lag behind the state average for the duration of the agreement and (4) develop and implement a corrective action plan to increase utilization rates in those lagging counties.36 CAO 637-3, in effect from 2007-2011, clarified and supplemented the requirements of the Statewideness provisions of the Decree.
33 Mem. Op. 15, Dkt 663. 34 Id. 35 Consent Decree ¶ 273, Dkt. 135. 36 Consent Decree ¶¶ 171-281, Dkt. 135.
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Case 3:93-cv-00065-RAS Document 1020 Filed 03/28/13 Page 10 of 17 PageID #: 59563
Defendants now seek removal of paragraphs 271-281 of the Decree based on their compliance with CAO 637-3.37
Defendants assert that Exhibits 1-4 and 5-8 attached to their Response to Plaintiffs’
Motion for Further Action (Dkt. 923) constitute evidence of their compliance with paragraphs
271-281 of the Decree and CAO 637-3. Exhibits 1-4 are the required annual reports and Exhibits
5-8 are the corrective action plans created and implemented in response to the reports. Plaintiffs
respond that while Defendants may have technically complied with all the requirements of the
Statewideness provisions, they failed to achieve the objective of the Decree or demonstrate that a durable remedy is in place.38 Plaintiffs contend that Defendants’ allegedly minimal efforts at
compliance and miniscule improvements in the percentages of class members receiving timely
checkups in lagging counties does not show that they have complied with the Decree and
therefore Defendants should not be released from their obligations under the Statewideness provisions.39
Generally, the Decree “speaks to the broader goals of enhancing recipients’ access to health care and improving the use of health care services by Texas EPSDT recipients.”40
Plaintiffs specifically rely on paragraphs 2, 6, and 192 to support their argument. Paragraph 2
states:
EPSDT is intended to provide comprehensive, timely and cost effective health services to indigent children and teenagers who qualify for Medicaid benefits. Check ups are the cornerstone of the program. They assess recipients’ health, provide preventive care and counseling (anticipatory guidance) and make referrals for other needed diagnosis and treatment. 42 U.S.C. §§ 1396(a)(43); 1396(d). Recipients are entitled to both medical and dental check ups on a regular 37 CAO 637-3 indicates that its corresponding Decree provisions are paragraphs 171-72, 191, 199, 204-12, 271-81, and 283-84; however, Defendants only seek removal of paragraphs 271281 of the Decree. 38 Pl.’s Mot. 5, Dkt. 922; Hr’g Tr. 124:22-25, Jan. 8, 2013. 39 Pl.’s Mot. 5-6, Dkt. 922. 40 Frazar v. Ladd, 457 F.3d 432, 439 (5th Cir. 2006).
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Case 3:93-cv-00065-RAS Document 1020 Filed 03/28/13 Page 11 of 17 PageID #: 59564
schedule. About 48% of recipients received at least one medical check up in fiscal year 1994 (FY94), according to reports Defendants filed with United States Department of Health and Human Services. Paragraph 6 reads: “To address the parties’ concerns, to enhance recipients’ access to health care, and to foster the improved use of health care services by Texas EPSDT recipients, the parties agree and the Court orders Defendants to implement the following changes and procedures of the Texas EPSDT program:” Paragraph 192, which is located in the section of the Decree relating to “Recipients in Managed Care,” reads: “TDH will assure by various means that managed care organizations provide medical and dental check ups to newly enrolled recipients no later than 90 days after enrollment except when recipients knowingly and voluntarily decline or refuse services. Managed care organizations will also have the capacity to accelerate services to the children of migrant farmworkers to accommodate their special circumstances. TDH will also assure medical and dental check ups in a timely manner to all recipients.” This paragraph, located on page 52 of the Decree, is under the subheading “Recipients in Managed Care,” which begins on page 50. Paragraphs 184-199 address Defendants’ responsibilities with regard to managed-care organizations. The court reads paragraph 192 in this context, because “[g]eneral principles of contract interpretation govern the interpretation of a consent decree.”41 Therefore, TDH’s (“Texas Department of Health”) responsibility under this paragraph is to assure recipients in managed care timely medical and dental checkups. This paragraph does not add to Defendants’ responsibilities under the Statewideness provisions in paragraphs 271-281. Plaintiffs admit that the lagging county median percentage of class members receiving required medical checkups increased by 5.6 percentage points during the four years of the
41 United States v. Chromalloy Am. Corp., 158 F.3d 345, 349 (5th Cir. 1998).
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Case 3:93-cv-00065-RAS Document 1020 Filed 03/28/13 Page 12 of 17 PageID #: 59565
CAO.42 According to Dkt. 955-4 (“Texas Health Steps Medical Checkup Utilization in Counties
that Lagged 2007-2011”), the majority of the sixty-five counties that were classified as lagging
sometime between 2007-2011 have seen an increase in utilization rates for medical checkups. Four counties lagged each year, but each also experienced an increase in utilization.43 Only five
counties ended the time period with a lower percent of utilization than the first year in which the county lagged.44 Only eight of the counties that lagged for the first time in 2011 actually saw a decrease in utilization rates for that year.45 Plaintiffs admit that during the final year of the CAO,
median percentage utilization rates for class members getting the required dental checkups rose by 4.4 percentage points from the first year of the CAO.46 As shown in Dkt. 955-5 (“Texas
Health Steps Dental Checkup Utilization in Counties that Lagged 2007-2011”), only one county experienced a decrease in utilization rates from the first year it was classified as lagging.47 Of the
four counties that were classified as lagging for the first time in 2011, all of them had experienced an increase in utilization rates since 2007.48 Only four counties lagged each year, but each of them experienced an increase in utilization by 2011.49 Defendants also pointed out
that as of August 2012 “medical checkup participation has improved so that 25 counties that previously lagged no longer do. Of the remaining counties, 19 have shown improvement.”50
If the purpose of the Decree is to “enhance recipients’ access to health care, and to foster
the improved use of health care services by Texas EPSDT recipients,” it appears that Defendants
42 Pl.’s Mot. 7, Dkt. 922; Hr’g Tr. 40:25, Jan. 8, 2013. 43 Archer County, Jones County, Sabine County, and Scurry County. 44 Carson County, Hunt County, Mitchell County, and Sterling County. 45 Walker County, Stonewall County, San Saba County, Real County, Mason County, Llano County, Haskell County, Gray County, and Concho County. 46 Pl.’s Mot. 7, Dkt. 922. 47 Oldham County. 48 Crockett County, Live Oak County, Sabine County, and Sutton County. 49 Brewster County, Howard County, Ochiltree County, and Scurry County. 50 Def.’s Resp. 7-8, Dkt. 923.
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Case 3:93-cv-00065-RAS Document 1020 Filed 03/28/13 Page 13 of 17 PageID #: 59566
have done so. Plaintiffs have not cited to any authority to support their argument that a “minimal” increase, as it is characterized by Plaintiffs, would not satisfy the objectives of the Decree. The Decree does not contain any provisions that would indicate an amount of increase that either would or would not satisfy the goals of the Decree.
Plaintiffs next argue that Defendants have not satisfied the terms of the Decree because of their failure to employ or to maintain their ability to employ all of the appropriate means to increase utilization enumerated in the paragraph 281 of the Decree. But the Decree does not mandate that Defendants retain the ability to use all of the appropriate means listed throughout the duration of the Decree. Further, the Decree does not require the use of any one particular appropriate means or all of the enumerated appropriate means. It merely gives Defendants discretion to choose one or more of the listed appropriate means. The Decree also does not indicate that the list of appropriate means is exhaustive or exclusive.
Finally, Plaintiffs contend that Defendants have not complied with the Decree because they failed to acknowledge trends or patterns in their annual reports as required by the CAO.51 Both parties announced at the start of the January 8, 2013 hearing that they did not intend to call witnesses or present any evidence other than the numerous exhibits attached to the motions and responses. Plaintiffs have not pointed to any expert testimony or reports to support the argument that Defendants have failed to properly analyze trends or patterns in their annual reports. Yet even if the Defendants failed to comply with the Decree by not identifying patterns or trends in the data collected, Defendants have demonstrated sufficient changed factual circumstances to warrant modification of the Decree.
51 Pl.’s Mot 15, Dkt. 922.
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Case 3:93-cv-00065-RAS Document 1020 Filed 03/28/13 Page 14 of 17 PageID #: 59567
ii. Prospective application of the Statewideness provisions of the Consent Decree is no longer equitable under Rule 60(b)(5). 1. A significant change in factual circumstances warrants revision of the Decree.
At the January 8, 2013 hearing on this motion, Defendants explained that “[i]n 1993 when the Frew lawsuit was filed, most Medicaid services were delivered through a fee-forservice model,” and the state was “piloting managed care in one county at the direction of the state legislature.”52 In 1996 when the Decree was entered, “most Medicaid services were provided through fee-for-service, class members found their own providers, [and] state health services had public health clinics throughout the state.”53 But now, “Medicaid managed care has been expanded throughout Texas,” and managed-care organizations “serve as the delivery models for medical care and dental care in all 254 counties in the state.”54
Plaintiffs respond that this change was anticipated by the parties at the time they agreed to the Decree and cannot justify modification of the Decree. But a change in factual circumstances does not have to be unforeseen to warrant modification to a decree.55 Although Defendants were piloting a managed-care delivery model in some counties at the time of the Decree, there is no evidence that Defendants entered the Decree knowing that it would ultimately become fruitless and they could then avoid their agreed-to responsibilities. The fact that the state legislature ultimately saw fit to implement managed-care statewide over the seventeen years that this Decree has been in place hardly suggests that is the case. Nevertheless, a “change in factual circumstances, without more, is thus insufficient to warrant modification of a consent decree in the Fifth Circuit; the moving party must additionally show how the change in factual
52 Hr’g Tr. 29:1-9, Jan. 8, 2013. 53 Hr’g Tr. 110:9-13, Jan. 8, 2013. 54 Hr’g Tr. 29:1-9, Jan. 8, 2013. 55 Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 385 (1992).
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Case 3:93-cv-00065-RAS Document 1020 Filed 03/28/13 Page 15 of 17 PageID #: 59568
circumstances warrants modification of the consent decree by showing that those changes affect compliance with, or the workability or enforcement of, the final judgment.”56
Defendants assert that the statistics reported in compliance with the Statewideness provisions of the Decree have become a “meaningless measurement with little statistical, predictive, or evaluative value” because of the shift to a managed-care delivery model within the state.57 Further, corrective action plans “targeting lagging counties are duplicative of efforts already underway across the state,” and “statewide managed care renders the practice moot, in light of efforts and contractual requirements imposed on Medicaid managed care organizations.”58 The managed-care model that has been implemented statewide does not provide services on a county-by-county basis, making an analysis by county less suitable in assessing what actions can be taken to improve utilization rates. Instead each managed-care organization is responsible for a particular service delivery area, which may cover portions of more than one county. Further, managed-care organizations are required to develop a network of providers to ensure that enrollees have access to a primary care physician and a dentist within thirty miles of their homes and access to common medical professionals within seventy-five miles of their homes and are required to regularly report to the Texas Health and Human Services Commission on the adequacy of their networks.59 This major restructuring of the Medicaid delivery model statewide constitutes sufficiently changed factual circumstances to warrant modification of Statewideness provisions of the Decree.
56 Frew v. Hawkins, 401 F. Supp. 2d 619, 630 (E.D. Tex. 2005) (internal quotation marks omitted). 57 Def.’s Resp. Ex. 9, Dkt. 923-14. 58 Def.’s Resp. Ex. 9, Dkt. 923-14. 59 Hr’g Tr. 110:21-111:4, Jan. 8, 2013.
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Case 3:93-cv-00065-RAS Document 1020 Filed 03/28/13 Page 16 of 17 PageID #: 59569
2. The proposed modification is suitably tailored to the changed circumstances.
Defendants seek removal only of paragraphs 271-281 of the Decree, and this proposed modification is suitably tailored to the changed circumstances. The modification proposed by Defendants is appropriate given their compliance with the terms of the Statewideness provisions and the corresponding CAO 637-3. Defendants are still required to comply with the terms of the agreed-upon Decree regardless of whether their actions put them in compliance with federal law. However, Defendants have complied with the terms of CAO 637-3, which was designed to enforce the Statewideness provisions of the Decree, and the change in factual circumstances in the intervening seventeen years warrants removal of paragraphs 271-281 of the Decree. The court reminds the parties that the remaining provisions of the Decree and CAOs remain in place. Specifically, paragraphs 184-199 and CAOs 637-4 and 637-6 relating to managed-care organizations preserve Defendants’ responsibilities for ensuring adequate provision of EPSDT services to class members despite the switch to a managed-care model. Indeed, Plaintiffs admitted during oral argument that had Defendants proposed the transition to a managed-care delivery model as a corrective action plan to comply with the Statewideness provisions of the Decree, that transition would have been adequate to comply with the Decree.60 Ultimately the proposed modification furthers the primary goals of the decree by removing provisions that have become outdated, but leaving in place those that will enhance recipients’ access to health care and improve the use of health care services by Texas EPSDT recipients through utilization of a managed-care model.
60 Hr’g Tr. 60:7-8, Jan. 8, 2013.
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Case 3:93-cv-00065-RAS Document 1020 Filed 03/28/13 Page 17 of 17 PageID #: 59570
IV. CONCLUSION “[T]he longer an injunction or consent decree stays in place, the greater the risk that it
will improperly interfere with a State’s democratic process.”61 The changed factual circumstances with respect to Defendants’ implementation of a statewide managed-care model warrant modification of the Decree in this instance. Paragraphs 271-281 of the Decree are no longer necessary, and Defendants are no longer obligated to make the reports required by Statewideness provisions. CAO 637-3 has been fully complied with and no further action is required by Defendants pursuant to its terms.
The court declines to address whether an ongoing violation of the underlying Medicaid statute exists at this time and reminds the Defendants that they remain bound by the terms of the Decree regardless of whether they believe they are in compliance with the statute.62 The remaining provisions of the Decree and the CAOs continue in force and are unmodified by this order.
IT IS SO ORDERED.
. SIGNED this the 28th day of March, 2013.
_______________________________ RICHARD A. SCHELL UNITED STATES DISTRICT JUDGE
61 Horne v. Flores, 557 U.S. 433, 453 (2009). 62 See Horne, 557 U.S. at 454 (“To determine the merits of this claim, the Court of Appeals needed to ascertain whether ongoing enforcement of the original order was supported by an ongoing violation of federal law.”); Frew v. Hawkins, 401 F. Supp. 2d 619, 635 (E.D. Tex. 2005) (“While compliance with federal law may be one factor in assessing changed factual circumstances, it is neither the focus of the Court’s inquiry nor dispositive of the merits of Defendants’ Rule 60(b) Motion.”).
17

 
 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

LINDA FREW, et al.

§

Plaintiffs,

§

§

v.

§

§

KYLE L. JANEK, M.D.,

§

Defendant.

§

Case No. 3:93-CV-65

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS’ MOTION TO ENFORCE AND GRANTING DEFENDANTS’ MOTION TO DISSOLVE
CORRECTIVE ACTION ORDER: PRESCRIPTION AND NON-PRESCRIPTION MEDICATIONS, MEDICAL EQUIPMENT AND SUPPLIES [DE #637-8]

Pending before the court is Plaintiffs’ Motion to Enforce the Corrective Action Order:

Prescription and Non-Prescription Medications, Medical Equipment and Supplies, and Related

Decree Provisions (Dkt. 971); Defendants’ Rule 60(b)(5) Motion to Dissolve the Corrective

Action Order on Prescription and Non-Prescription Medications, Medical Equipment and

Supplies, and Related Consent Decree Provisions and Response in Opposition to Plaintiffs’

Motion to Enforce the Corrective Action Order (Dkt. 998); Plaintiffs’ Response (Dkt. 1004);

Defendants’ Reply (Dkt. 1019); and Plaintiffs’ Sur-Reply (Dkt. 1026). Also pending before the

court is Defendants’ Motion to Strike the Testimony of Drs. Mazur, Whitney, Wood and Rider In

Part or In Whole (Dkt. 1023) and Plaintiffs’ Response (Dkt. 1027).The court held a hearing on

September 9, 2013 and heard argument from the parties on these pending motions. After

considering the briefing and the arguments of both parties and for the reasons set forth herein

Plaintiffs’ Motion for Further Action (Dkt. 971) is DENIED, Defendants’ Rule 60(b)(5) Motion

(Dkt. 998) is GRANTED. Defendants’ Motion to Strike (Dkt. 1023) is DENIED. Also pending

before the court is Plaintiffs’ Motion to Pay Expert Witnesses (Dkt. 1043), Defendants’

Response (Dkt. 1045), and Plaintiffs’ Reply (Dkt. 1046), which is GRANTED.

1

I.

BACKGROUND

A detailed background of this case can be found in previously issued opinions.1 On

September 1, 1993, Plaintiffs filed this lawsuit alleging that Defendants (the successive

commissioners of the Texas Health and Human Services Commission and the Texas Department

of Health) did not adequately provide Early Periodic Screening, Diagnosis and Treatment

(EPSDT) services to Medicaid recipients under the age of twenty-one as required by the

Medicaid Act, Title 42, United States Code, Sections 1396a(a)(43) and 1396d(r). In Texas, the

EPSDT program is referred to as “Texas Health Steps” and is administered jointly by the federal

government and the Texas Health and Human Services Commission. The Plaintiffs structured

this case as a class action and defined the class broadly to include all Texas youth eligible to

receive Medicaid. The Plaintiffs sought injunctive relief to ensure that the state complied with

the Medicaid Act. The primary governing documents in this case are the “Consent Decree” (Dkt.

135) and the “Corrective Action Orders” (Dkt. 637).

a. The Consent Decree

In July 1995, after extensive settlement negotiations, the parties proposed a Consent

Decree that was subsequently approved by the court on February 16, 1996 (Dkt. 135). The

Decree is a court-enforced settlement agreement that sets forth a compliance plan for the State’s EPSDT program.2 The Decree was not intended to resolve all the contested issues between the

parties. Rather, it was designed to reduce the nature and scope of the litigation. The Decree

1 See Frew v. Gilbert, 109 F. Supp. 2d 579 (E.D. Tex. 2000); Frazar v. Gilbert, 300 F.3d 530 (5th Cir. 2002); Frew v. Hawkins, 540 U.S. 431 (2004); Frew v. Hawkins, 401 F. Supp. 2d 619 (E.D. Tex. 2005); Frew v. Suehs, 775 F. Supp. 2d 930 (E.D. Tex. 2011). 2 See Frew v. Hawkins, 540 U.S. 431, 437 (2004) (“A consent decree ‘embodies an agreement of the parties’ and is also ‘an agreement that the parties desire and expect will be reflected in, and be enforceable as, a judicial decree that is subject to the rules generally applicable to other judgments and decrees.’”) (quoting Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 378 (1992)).

2

discusses in detail the areas in which the State’s EPSDT program was deficient, sets goals and requirements for improvements, and establishes deadlines for the State’s implementation of the improvements.
In 1998, Plaintiffs moved to enforce the Decree, arguing that Defendants were not complying with several of the Decree’s provisions (Dkt. 208). Defendants opposed the motion, arguing that their efforts had been sufficient and that, regardless of their efforts, the Eleventh Amendment barred the court from enforcing the Decree. In 2000, this court held that the State had failed to comply with several of the Decree’s provisions and that the Eleventh Amendment did not bar enforcement of the Decree.3 On appeal the Fifth Circuit disagreed with the court and held that the Eleventh Amendment barred enforcement of elements of the Decree that were not specifically mandated by the Medicaid Act.4 The U.S. Supreme Court reversed the Fifth Circuit, holding that the Decree was enforceable under the principals of Ex Parte Young, 209 U.S. 123 (1908) because the Decree addressed federal interests.5 The case was remanded to this court for continued oversight.
b. The Corrective Action Orders In November 2004, Defendants moved to terminate or alternatively to modify the Decree under Federal Rule of Civil Procedure 60(b)(5) (Dkt. 406). The basis for Defendants’ motion was that even though they had not yet fulfilled the Decree their efforts had brought them into compliance with the Medicaid Act. The court denied the Defendants’ motion, holding that
3 Frew v. Gilbert, 109 F. Supp. 2d 579 (E.D. Tex. 2000). 4 Frazar v. Gilbert, 300 F.3d 530 (5th Cir. 2002). 5 Frew v. Hawkins, 540 U.S. 431 (2003).
3

compliance with the federal law was not the sole object of the Decree.6 Defendants’ appeals to the Fifth Circuit and the U.S. Supreme Court were unsuccessful.7
Plaintiffs eventually filed three other motions relating to enforcement of the Decree (Dkts. 607, 429, 428). In 2007, the parties reached an agreement on the pending motions that set forth corrective action plans for eleven areas of the EPSDT program that had been addressed in the Decree. The parties filed their proposed agreement with the court on April 27, 2007 (Dkt. 637). The court orally approved the agreement at a July 9, 2007 hearing and subsequently entered the agreement as the Corrective Action Order (CAO) on September 5, 2007 (Dkt. 663). On April 17, 2009, the case was transferred by the Honorable William Wayne Justice to the undersigned judge (Dkt. 716).
The Corrective Action Order presently at issue is Dkt. 637-8.8 Defendants represent that they have complied with the obligations set forth in CAO 637-8 and paragraphs 124-130 of the Decree. The provisions in dispute relate to training for pharmacists that provide prescription and non-prescription medication and other medical supplies to class members. Plaintiffs request that the court order Defendants to take further action. Defendants request that they be relieved from their obligations under CAO 637-8 and Decree paragraphs 124-130 because they have satisfied the judgment. II. LEGAL STANDARD
Federal Rule of Civil Procedure Rule 60(b)(5) permits a party to obtain relief from a judgment or order if: (1) the judgment has been satisfied, released, or discharged; (2) it is based on an earlier judgment that has been reversed or vacated; or (3) applying it prospectively is no
6 Frew v. Hawkins, 401 F. Supp. 2d 619 (E.D. Tex. 2005). 7 See Frazar v. Ladd, 457 F.3d 432 (5th Cir. 2006), cert. denied, 549 U.S. 1118 (2007). 8 Corrective Action Order: Prescription and Non-Prescription Medications; Medical Equipment and Supplies, Dkt. 637-8 [hereinafter CAO 637-8].
4

longer equitable. “General principles of contract interpretation govern the interpretation of a consent decree.”9 “[C]onsent decrees are to be construed only by reference to the ‘four corners’ of the order itself.”10
“Rule 60(b)(5) serves a particularly important function in . . . institutional reform litigation” because “injunctions issued in such cases often remain in force for many years, and the passage of time frequently brings about changed circumstances.”11 Indeed, “institutional reform injunctions often raise sensitive federalism concerns.”12 “Federalism concerns are heightened when, as in these cases, a federal court decree has the effect of dictating state or local budget priorities.”13 Consent decrees “sometimes go well beyond what is required” by underlying statutes and may “improperly deprive future officials of their designated legislative and executive powers.”14 “Where state and local officials inherit overbroad or outdated consent decrees that limit their ability to respond to the priorities and concerns of their constituents, they are constrained in their ability to fulfill their duties as democratically-elected officials.”15 Accordingly, federal courts must “exercise [their] equitable powers to ensure that when the objects of the decree have been attained, responsibility for discharging the State’s obligations is returned promptly to the State and its officials.”16
9 United States v. Chromalloy Am. Corp., 158 F.3d 345, 349 (5th Cir. 1998). 10 Id. 11 Horne v. Flores, 557 U.S. 433, 447-48 (2009) (internal quotation marks and citations omitted). 12 Id. at 448. 13 Id. 14 Id. at 448-49 (internal quotation marks omitted). 15 Id. at 449 (internal quotation marks omitted). 16 Frew v. Hawkins, 540 U.S. 431, 442 (2004).
5

III. ANALYSIS a. Defendants’ Motion to Strike Testimony (Dkt. 1023)
Defendants move to strike the testimony of Drs. Mazur, Whitney, Wood and Rider submitted by Plaintiffs in connection with their Motion for Further Action (Dkt. 971). Defendants object to the designation of these doctors as experts. Defendants do not question the qualifications or credentials of these witnesses to offer expert testimony as medical doctors. However, Defendants argue that these witnesses are not qualified to offer an opinion as experts with respect to Defendants’ satisfaction of Decree paragraphs 124-130 and CAO 637-8.
Federal Rule of Evidence 702 states that “[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” The witnesses’ opinions in this instance are not based on any specialized knowledge. Instead, the witnesses offer largely anecdotal evidence about problems that either they or their colleagues have experienced with patients attempting to get prescriptions filled through Medicaid-enrolled pharmacies. This testimony does not rely on the doctors’ scientific, technical, or specialized knowledge. Therefore, the doctors have not offered “expert” opinions regarding whether Defendants are in compliance with the terms of the Decree and the CAO. However, portions of the doctors’ testimony are relevant, although unpersuasive, in determining the effectiveness of the Defendants’ efforts to comply with the Consent Decree and CAO 637-8. The court has considered only those portions of the doctors’ testimony that are relevant to the court’s analysis of the instant motions. The Motion to Strike (Dkt. 1023) is DENIED.
6

b. Plaintiffs’ Motion to Enforce Order Requiring Defendants to Pay a Fair and Reasonable Compensation for Plaintiffs’ Experts’ Time (Dkt. 1043)
Plaintiffs’ motion for payment of their witness fees (Dkt. 1043) is GRANTED. Federal Rule of Civil Procedure 26(b)(4)(E) instructs that “[u]nless manifest injustice would result, the court must require that the party seeking discovery: (i) pay the expert a reasonable fee for time spent in responding to discovery under Rule 26(b)(4)(A) or (D).” (emphasis added). There is nothing in the Rule or this court’s order (Dkt. 898) that conditions the requirement of payment on a determination of the ultimate admissibility of the witness’s testimony.
c. Plaintiffs’ Motion for Further Action (Dkt. 971) Plaintiffs seek an order from this court requiring Defendants to take further action pursuant to CAO 637-8. Defendants oppose the motion and maintain that they have satisfied the terms of CAO 637-8 and the corresponding provisions of the Decree, paragraphs 124-130. At the court’s hearing on these motions, Plaintiffs acknowledged that Defendants substantially complied with all but two of the paragraphs of CAO 637-8.17 Therefore, the court addresses only those two provisions with which Plaintiffs maintain Defendants have not substantially complied. First, Plaintiffs argue that Defendants have not “provide[d] intensive, targeted educational efforts to those pharmacies for which the data suggest a lack of knowledge of the 72-hour emergency prescriptions policy.”18 The CAO explains that pharmacies are allowed to dispense a 72-hour “emergency” allotment of a prescription when a class member arrives at the pharmacy with a prescription that requires a prior authorization from Medicaid or the patient’s managed-care organization and the pharmacist is unable to obtain a prior authorization. An example of this is when a class member is treated at an emergency room over a 17 While acknowledging that Defendants have substantially complied with the specific actions required of them, Plaintiffs do not acknowledge that Defendants’ actions have been effective and maintain that Defendants could do more. 18 CAO 637-8 at 4; Dkt. 971 at 11-13.
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weekend and given a prescription that requires a prior authorization, and the pharmacist is unable to reach the prescribing physician. The pharmacist can dispense a 72-hour allotment of the medication so that the patient has time to follow-up with a physician to either get a prescription for a preferred medication or obtain a prior authorization. Defendants conducted studies to evaluate which pharmacies were dispensing a lower-than-expected number of 72-hour emergency prescriptions. Defendants were then required to provide intensive, targeted educational efforts to those pharmacies.
The majority of the evidence submitted by Plaintiffs is not relevant to determining whether Defendants are in compliance with this requirement of CAO 637-8. For instance, Plaintiffs put forth declaration testimony from doctors about the complexity of Defendants’ “Preferred Drug List,” frustration with obtaining prior authorizations, and problems encountered when the state moved to a managed-care system. However, this evidence does not assist the court in determining whether Defendants failed to comply with their obligations under the CAO to provide intensive, targeted education to pharmacists. Defendants have put forth evidence, described below in relation to Defendants’ Rule 60(b)(5) motion, which demonstrates that Defendants have complied with the requirements of the CAO.19 Plaintiffs’ belief that Defendants could do more is insufficient for the court to order any further action.
Next, Plaintiffs argue that Defendants have not “train[ed] staff at their ombudsman’s office about the emergency prescription standards, what steps to take to immediately address class members’ problems when pharmacies do not provide emergency medicines, and DME [“durable medical equipment”] standards and common problems.”20 Plaintiffs cite to call logs provided by Defendants to support their argument that staff at the Ombudsman’s Office has not
19 See infra Part III.d. 20 CAO 637-8 at 5.
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been trained as required by the CAO. Plaintiffs admit that some inquiries to the Ombudsman’s Office have been handled appropriately. Plaintiffs take issue with those instances where Ombudsman’s Office staff has referred class members to their managed-care organizations or instructed them to follow up with their primary-care providers to obtain a prior authorization. These instances do not necessarily show a lack of training of the Ombudsman’s Office staff. Defendants rely on declarations of Maribel Castoreno (Dkt. 998-2), Laura Bagheri (Dkt. 998-4), and Dawn Rehbein (Dkt. 998-10) to explain how the actions taken by the Ombudsman’s Office staff conform to their training and are designed and intended to immediately address class members’ problems. The court can only require Defendants to comply with the requirements of the Consent Decree and the CAO, and Defendants have put forth evidence to show that they have provided training to the staff at their Ombudsman’s Office as required by this court’s order.21
Two paragraphs of the portion of the Consent Decree at issue require Defendants to take specific actions. Paragraph 129 requires Defendants to “implement an initiative to effectively inform pharmacists about EPSDT, and in particular EPSDT’s coverage of items found in pharmacies” by making presentations at meetings of the Texas Pharmacy Association, publishing articles in the newsletter of the Texas Pharmacy Association, and sending at least one mailer that is (1) designed to attract attention, (2) explain EPSDT coverage, and (3) encourage pharmacists to provide all covered products, to all pharmacists that participate in Medicaid by January 31, 1996. Paragraph 130 requires Defendants to “conduct a professional and valid evaluation of pharmacists’ knowledge of EPSDT coverage” and report their findings to Plaintiffs by January 31, 1996. If the evaluation demonstrated that pharmacists’ knowledge was insufficient, Defendants were required to orally inform pharmacists about EPSDT coverage. Defendants 21 See infra Part III.d.
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contend that they have complied with this obligation as demonstrated by their Quarterly Monitoring Reports,22 and that no further action should be required. Plaintiffs contend that while
Defendants have taken these discrete actions, Defendants have not effectively educated
pharmacists about EPDST and therefore further action should be required under the Decree.
Plaintiffs’ argument would require the court to create and read into the Decree and the
CAO more than what is required by the agreed-upon terms. The terms of a consent decree “are
arrived at through mutual agreement of the parties” after careful negotiation, and “it is the
parties’ agreement that serves as the source of the court’s authority to enter any judgment at all.”23 “Courts should not impose their own terms within a consent decree and should read consent decree terms by their plain meaning.”24 A consent decree embodies agreements reached “after careful negotiation has produced agreement on [its] precise terms.”25 “[W]hen a contract is
expressed in unambiguous language, its terms will be given their plain meaning and enforced as written.”26 Indeed, “the scope of a consent decree must be discerned within its four corners, not
by reference to what either party hoped to achieve by the decree, or to what they might have achieved through the litigation.”27
Plaintiffs argue that “the entire Medicaid prescription program is now so dysfunctional
that education alone cannot possibly solve all the problems thwarting class members’ timely
22 See Dkt. 651 at 35; Dkt. 670 at 30-32; Dkt. 676 at 29-31; Dkt. 681 at 36-38; Dkt. 689 at 42-43; Dkt. 701 at 38-40; Dkt. 710 at 30-31; Dkt. 723 at 38-39; Dkt. 726 at 2-3, 47-50; Dkt. 740 at 1-2, 45-47; Dkt. 751 at 55-57; Dkt. 758 at 59-62; Dkt. 775 at 61-63; Dkt. 800 at 58-62; Dkt. 813 at 48-50; Dkt. 825 at 46-48; Dkt. 828 at 47-50; Dkt. 836 at 54-58; Dkt. 868 at 53-57; Dkt. 903 at 57-61; Dkt. 919 at 41-45; Dkt. 961 at 45-46; Dkt. 998-1. 23 Local No. 93, Intern. Ass’n of Firefighters, AFL-CIO C.L.C. v. City of Cleveland, 478 U.S. 501, 519, 522 (1986). 24 United States v. Alcoa, Inc., 533 F.3d 278, 286 (5th Cir. 2008). 25 Local No. 93, 478 U.S. at 522. 26 United States v. Chromalloy Am. Corp., 158 F.3d 345, 350 (5th Cir. 1998). 27 Frew v. Gilbert, 109 F. Supp. 2d 579, 594 (E.D. Tex. 2000) (internal quotation marks omitted).
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access to needed medicines.”28 But the only issue pending before the court is a determination of whether Defendants have complied with paragraphs 124-130 of the Decree and CAO 637-8. Plaintiffs concede that Defendants have complied with most of those terms, and the court cannot require further action from Defendants because Plaintiffs are dissatisfied with the results. Plaintiffs and Defendants agreed on the measures outlined in the Decree and the CAO to educate pharmacists as one way of furthering the overarching goals of the Decree. Plaintiffs’ argument that “no amount of education will cure the pervasive dysfunction in Defendants’ deeply flawed system”29 is beyond the scope of the currently pending motions. Plaintiffs’ motion for further action (Dkt. 971) is DENIED.
d. Defendants’ Rule 60(b)(5) Motion (Dkt. 998) Defendants move the court to end their obligations under paragraphs 124-130 of the Decree and CAO 637-8 under Rule 60(b)(5) because the judgment has been satisfied. This court’s previous order makes clear that “[o]nce Defendants comply with that part of the Decree and the related section of the Corrective Action Order, then the court may terminate that part of the Decree and the related section of the Corrective Action Order.”30 The CAOs were intended to “provide[] a clear potential end point for Defendants’ obligations under the Consent Decree.”31 As explained above, Plaintiffs acknowledge that Defendants have complied with all but two paragraphs of CAO 637-8. Defendants point to the Declaration of Maribel Castoreno,32 Texas Health and Human Services Commission’s Vendor Drug Program Provider Education and Outreach Specialist in support of their motion related to provision of “intensive, targeted educational efforts” to pharmacies. Ms. Castoreno explains that after conducting the first analysis 28 Dkt. 971 at 22. 29 Dkt. 971 at 24. 30 Mem. Op. 15, Dkt. 663. 31 Id. 32 Dkt. 998-2.
11

required by the CAO, Defendants identified 822 pharmacies to be targeted for intensive education. Defendants “sent each identified pharmacy a certified letter, return receipt requested, directed to the pharmacist-in-charge of each pharmacy.”33 The letter “encouraged use of dispensing a 72-hour emergency supply, included citations to federal and state rules and regulations, and provided information explaining how to obtain payment for such emergency prescriptions.”34 Those pharmacists that did not sign for the certified letter were contacted by telephone or were “visited by a Medicaid Regional Pharmacist.” Because over half of the pharmacies identified by the first analysis were corporate chains, Defendants “scheduled conference calls with the corporate offices and relevant training staff of CVS, HEB, Walgreens, and Walmart” and sent electronic copies of the letters sent to pharmacists to each of the corporate entities.
Defendants assert that these actions satisfy the terms of the CAO. Defendants further assert that they went beyond what was required of them by soliciting “a consultant to assist HHSC by identifying specific factors for pharmacies which the data suggested a pattern or lack of knowledge of the 72-hour policy.”35 Defendants then used the consultant’s recommendations to “develop possible remedies and additional targeted education for a specific area, pharmacy, or even prescribing provider.” Ms. Castoreno’s Declaration also outlines Defendants’ ongoing statewide efforts to educate pharmacists.36 Defendants have provided newsletters,37 fax notices,38
33 Dkt. 998-2 at 8, ¶ 24; see also Dkt. 998-1. 34 Dkt. 998-2 at 8, ¶ 24. 35 Dkt. 998-2 ¶ 27. 36 Dkt. 998-2 at 10-14. 37 Dkt. 998-2 at 10. “VDP creates a newsletter three to four times per year that is mailed to each active VDP enrolled pharmacy” and posted on the VDP website, emailed to a distribution list that includes pharmacy corporate offices and pharmacy associations, and circulated to HHS email subscribers.
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computer-based training,39 information on their public website,40 e-mail notifications,41 regional
pharmacist visits,42 one-on-one education via the Pharmacy Resolutions Help Desk,43 as well as
targeted follow-up with pharmacies that are the subject of complaints.44 Defendants also point to
their Exhibit 1,45 which contains excerpts from Quarterly Monitoring Reports filed with the
court, as support for their contention that they have satisfied all of the requirements of the
CAO.46 Finally, Defendants point to the Declaration of Loretta Disney, who is a Regional
Pharmacy Manager for the Texas Health and Human Services Commission.47 Ms. Disney
38 “Defendants use fax notices to circulate relevant news, policy clarifications, and updates, and educational reminders. Defendants fax notices to all active pharmacies that have a fax number on filed with VDP as well as other pharmacy contacts from the VDP-maintained distribution list.” 39 “A free online training module that relates to THSteps pharmacy benefits is available to all Medicaid providers, including pharmacists, pharmacy staff, and prescribers. It includes information regarding the 72-hour emergency supply of medications and Medicaid coverage of items commonly found in pharmacies . . . This module is available on DSHS’ website. VDP’s website includes links to these online modules. VDP also promotes the free online pharmacy training module in HHS email subscription service, as footer on fax blasts, during regional pharmacist visits, and Texas Pharmacy Association and Texas State Board of Pharmacy’s web postings. TMHP, Medicaid’s prover enrollment vendor, also offers a pharmacy-specific computer-based training on durable medical equipment and supplies (DME).” 40 “DSHS’ website includes information on the scope of THSteps benefits, online education modules, which are offered free to prescribers, pharmacists, and their respective staff, and links to other provider and client resources, including VDP and relevant excerpts of TMHP’s online Medicaid Provider Procedure Manual.” 41 Email notifies are “utilize[d] to circulate relevant news, policy clarifications, and updates, such as changes to the Medicaid Preferred Drug List (PDL), changes of prior authorization and/or claims processing vendor, and implementation of new processes such as coordination of benefits or addition of limited home health supplies to Medicaid formulary.” 42 Regional pharmacists employed by Medicaid “make regular visits to each Medicaid-enrolled pharmacy and are available by phone for questions or concerns as they arise.” 43 “VDP’s Pharmacy Resolution Help Desk phone line staff provides oral assistance to pharmacy providers with questions or problems relating to claims submission, program policy, and procedures.” 44 “When the state becomes aware of issues and/or complaints about a particular pharmacy, regional field staff reaches out to specific pharmacies via phone or in-person visit to orally address any identified issue/complaint or to offer programmatic guidance to Medicaid pharmacies.” 45 Dkt. 998-1. 46 Dkt. 998-1. 47 Dkt 998-11.
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explains that Regional Pharmacists “target certain pharmacies that are the subject of complaints brought to [them] by pharmacies, prescribers, or members.” 48 The court agrees with Defendants that they have satisfied the requirements of this paragraph of CAO 637-8.
The second paragraph of the CAO at issue requires that “Defendants . . . train staff at their ombudsman’s office about the emergency prescription standards, what steps to take to immediately address class members’ problems when pharmacies do not provide emergency medicines, and DME standards and common problems.” In support of their contention that they have complied with the CAO, Defendants point to the Declaration of Laura Bagheri, a Program Specialist V in the Medicaid/CHIP Office of the Medical Director, which explains that Ms. Bagheri “conducted the first training session of the Ombudsman staff required by the CAO in September 2007.” She states that the “training included information on the 72-hour emergency prescription standards, what steps to take to immediately address class members’ problems when pharmacies do not provide emergency medicines, and DME standards and common problems.” Next, Defendants rely on the Declaration of Ms. Castoreno, who describes the actions Defendants have taken in addition to the one time training required to be completed by January 2008. She explains that she provided additional training to the Ombudsman’s Office on February 6, 2008, August 19, 2009, and January 11, 2013. Finally, the Defendants put forth the Declaration of Dawn Rehbein.49 Ms. Rehbein explains that “on at least four occasions since fall of 2007 Vendor Drug Program (“VDP”) staff have provided face-to-face training to Ombudsman staff.” The court agrees with Defendants that they have satisfied the requirements of this paragraph of CAO 637-8.
48 Dkt. 998-11 ¶¶ 9-11. 49 Dkt. 998-10.
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Plaintiffs contend that even if the court holds that Defendants have taken these specific actions, that Defendants have been ineffective and more must be done to attain the objectives of the Decree. Generally, the Decree “speaks to the broader goals of enhancing recipients’ access to health care and improving the use of health care services by Texas EPSDT recipients.”50 Plaintiffs point to paragraphs 2 and 190 to support their argument. Paragraph 2 states “Recipients are also entitled to all needed follow up health care services that are permitted by federal Medicaid law. 42 U.S.C. § 1396d(r).”51 Paragraph 190, which is located in the section of the Decree relating to “Recipients in Managed Care,” reads “EPSDT recipients served by managed care organizations are entitled to timely receipt of the full range of EPSDT services, including but not limited to medical and dental checkups.”52
Any state program of this size and complexity is not going to operate error-free. Defendants have demonstrated that they have substantially complied with the terms of CAO 6378 and Decree paragraphs 124-130. The parties engaged in difficult negotiations to arrive at the terms of the CAO, and this court approved the terms as fair, reasonable, and adequate. The court cannot determine satisfaction of the Decree or CAOs “by reference to what either party hoped to achieve by the decree, or to what they might have achieved through the litigation.”53 The terms of the Decree and CAO can only be enforced as written. IV. CONCLUSION
Paragraphs 124-130 of the Consent Decree and CAO 637-8 have been satisfied and no further action is required by Defendants. The remaining provisions of the Decree and the CAOs continue in force and are unmodified by this order. 50 Frazar v. Ladd, 457 F.3d 432, 439 (5th Cir. 2006). 51 Dkt. 135. 52 Id. 53 Frew v. Gilbert, 109 F. Supp. 2d 579, 594 (E.D. Tex. 2000) (internal quotation marks omitted).
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IT IS SO ORDERED. . SIGNED this the 18th day of December, 2013. _______________________________ RICHARD A. SCHELL UNITED STATES DISTRICT JUDGE
16

 
 Case 3:93-cv-00065-RAS Document 1280 Filed 01/20/15 Page 1 of 46 PageID #: 86954

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

CARLA FREW, MARIA AYALA, NICOLE §

CARROLL, CHARLOTTE GARVIN and §

MARY JANE GARZA, et al.,

§

Plaintiffs,

§

§

v.

§

§

KYLE L. JANEK, M.D., et al.,

§

Defendants.

§

Case No. 3:93-CV-65

ORDER ON CORRECTIVE ACTION ORDER: ADEQUATE SUPPLY OF HEALTH CARE PROVIDERS (DKT. 637-9) & RELATED CONSENT DECREE PROVISIONS

Pending before the court is Plaintiffs’ Renewed Motion to Enforce the Provider Supply

Corrective Action Order and Related Decree Provisions (Opposed) (Dkt. 1033), Defendants’

Rule 60(b)(5) Motion to Vacate the Corrective Action Order: Adequate Supply of Health Care

Providers and Related Decree Provisions; Defendants’ Response in Opposition to Plaintiffs’

Renewed Motion to Enforce the Provider Supply Corrective Action Order and Related Decree

Provisions (Sealed) (Dkt. 1052), Plaintiffs’ Reply in Support of Plaintiffs’ Renewed Motion to

Enforce the Provider Supply CAO and Related Decree Provisions and Response in Opposition to

Defendants’ Rule 60(b)(5) Motion Regarding Provider Supply (Dkt. 1097), Defendants’ Reply in

Support of Their Rule 60(b)(5) Motion to Vacate the Corrective Action Order: Adequate Supply

of Health Care Providers and Related Decree Provisions; Defendants’ Sur-Reply in Opposition

to Plaintiffs’ Renewed Motion to enforce the Provider Supply Corrective Action Order and

Related Decree Provisions (Sealed) (Dkt. 1098), and Plaintiffs’ Sur-Reply in Opposition to

Defendants’ Rule 60(b)95) Motion Regarding Provider Supply (Dkt. 1101). For the reasons set

forth herein, Plaintiffs’ motion (Dkt. 1033) is DENIED, and Defendants’ motion (Dkt. 1052) is

GRANTED IN PART.

1

Case 3:93-cv-00065-RAS Document 1280 Filed 01/20/15 Page 2 of 46 PageID #: 86955

I.

BACKGROUND

A detailed background of this case can be found in previously issued opinions.1 A brief

summary is included here.

On September 1, 1993, Plaintiffs filed this lawsuit alleging that Defendants (the

successive commissioners of the Texas Health and Human Services Commission (HHSC) and

the Texas Department of Health (TDH) did not adequately provide Early, Periodic Screening,

Diagnosis, and Treatment (EPSDT) services to Texas Medicaid recipients under the age of 21 as

required under Title 42, United States Code, Sections 1396a(a)(43); 1396d(r). The EPSDT

program is referred to as “Texas Health Steps” (THSteps) and is administered jointly by the

federal government and the HHSC. Plaintiffs’ class is defined broadly to include all Texas youth

eligible to receive Medicaid. Plaintiffs sought injunctive relief to ensure that the state complied

with the Medicaid Act. The parties proposed, and the court adopted, a consent decree in 1996.

The primary governing documents in this case are the “Consent Decree” (Dkt. 135) and the

“Corrective Action Orders” (Dkts. 637, 663).

a. The Consent Decree (Dkt. 135)

In July 1995, after extensive settlement negotiations, the parties proposed a Consent

Decree that was approved by the court on February 16, 1995 (Dkt. 135). The Decree is a court-

enforced settlement agreement that sets forth a compliance plan for the EPSDT program. The

Decree was not intended to resolve all the contested issues between the parties. Rather, it was

designed to reduce the nature and scope of the litigation. The Decree discusses in detail the areas

1 See Frew v. Gilbert, 109 F. Supp. 2d 579 (E.D. Tex. 2000); Frazar v. Gilbert, 300 F.3d 530 (5th Cir. 2002); Frew v. Hawkins, 540 U.S. 431 (2004); Frew v. Hawkins, 401 F. Supp. 2d 619 (E.D. Tex. 2005); Frew v. Seuhs, 775 F. Supp. 2d 930 (E.D. Tex. 2011); Frew v. Janek, Case No. 3:93-cv-65, 2013 WL 6698378 (E.D. Tex. 2013).
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in which the EPSDT program was deficient, sets goals and requirements for improvements, and establishes deadlines for the implementation of those improvements.
In July 1998, Plaintiffs moved to enforce the Decree, arguing that Defendants were not complying with several of the Decree’s provisions (Dkt. 208). Defendants opposed the motion, arguing that their efforts had been sufficient and that, regardless of their efforts, the Eleventh Amendment barred the court from enforcing the Decree. In 2000, this court held that Defendants had failed to comply with several of the Decree’s provisions and that the Eleventh Amendment did not bar enforcement of the Decree. On appeal, the Fifth Circuit Court of Appeals disagreed and held that the Eleventh Amendment barred enforcement of portions of the Decree that were not specifically mandated by the Medicaid Act. The United States Supreme Court reversed the Fifth Circuit Court of Appeals, holding that the Decree was enforceable under the principles of Ex Parte Young, 209 U.S. 123 (1908), because the Decree addressed federal interests. The case was remanded to this court for continued oversight.
b. The Corrective Action Orders (Dkts. 637, 663) In November 2004, Defendants moved to terminate or, alternatively, to modify the
Decree under Federal Rule of Civil Procedure 60(b)(5).2 The basis for Defendants’ motion was that even though they had not yet satisfied their obligations under the Decree, their efforts had brought them into compliance with the Medicaid Act. The court denied Defendants’ motion, holding that compliance with federal law was not the sole object of the Decree. Defendants’ appeals to the Fifth Circuit and the United States Supreme Court were unsuccessful.
Plaintiffs later filed three additional motions relating to enforcement of the Decree.3 In 2007, the parties reached an agreement on the pending motions that set forth corrective action
2 Dkt. 406. 3 Dkts. 428, 429, 607.
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plans for eleven areas of the EPSDT program addressed in the Decree. The parties filed their proposed agreement with the court on April 27, 2007.4 The court orally approved the agreement at a hearing on July 9, 2007, and subsequently entered the agreement as the Corrective Action Order (CAO) or “Remedial Order” on September 5, 2007.5 On April 17, 2009, the case was transferred by the Honorable William Wayne Justice to the undersigned judge.6
The Corrective Action Order contains eleven particularized orders for enforcing specific portions of the Decree.7 The CAO at issue in these motions is entitled Corrective Action Order: Adequate Supply of Health Care Providers and can be found at Dkt. 637-9. In this order, the court refers to each paragraph of the CAO as “bullet point 1” or “bullet point 2” for clarity. The bullet points in the CAO are not numbered, and the court refers to them in the order they appear in the CAO. Also, to be clear, the court recognizes that there are a number of state departments and agencies that implement Texas’s Medicaid program. For simplicity, the court refers to “Defendants” collectively.
II. LEGAL STANDARD Federal Rule of Civil Procedure 60(b)(5) permits a party to obtain relief from a judgment
or order if: (1) the judgment has been satisfied, released or discharged; (2) it is based on an earlier judgment that has been reversed or vacated; or (3) applying it prospectively is no longer equitable. “Rule 60(b)(5) serves a particularly important function in . . . institutional reform litigation” because “injunctions issued in such cases often remain in force for many years, and the passage of time frequently brings about changed circumstances—changes in the nature of the
4 Dkt. 637. 5 Dkt. 663. 6 Dkt. 716. 7 See Dkt. 663 at 13 (“Indeed, each of the eleven sub-proposals addresses important topics that require improvement so class members can receive health care that they need and are entitled to receive.”).
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underlying problem, changes in governing law or its interpretation by the courts, and new policy insights—that warrant reexamination of the original judgment.”8 Indeed, “institutional reform injunctions often raise sensitive federalism concerns.”9 “Federalism concerns are heightened when, as in these cases, a federal court decree has the effect of dictating state or local budget priorities.”10 Consent decrees often “go well beyond what is required by federal law” and may “‘improperly deprive future officials of their designated legislative and executive powers.’”11 “Where state and local officials inherit overbroad or outdated consent decrees that limit their ability to respond to the priorities and concerns of their constituents, they are constrained in their ability to fulfill their duties as democratically-elected officials.”12 Accordingly, the court must “exercise its equitable powers to ensure that when the objects of the decree have been attained, responsibility for discharging the State’s obligations is returned promptly to the State and its officials.”13
Courts take a “flexible approach” when considering a motion to modify a decree on the basis that its prospective application would be inequitable.14 Under this approach, a party seeking modification of a decree bears the burden of establishing that a significant change in fact or law warrants revision of the decree; and the court must consider whether the proposed modification is suitably tailored to the changed circumstances.15 For instance, modification of a decree may be justified by a significant change in fact when (1) “changed factual conditions make compliance with the decree substantially more onerous,” (2) “a decree proves to be
8 Horne v. Flores, 557 U.S. 433, 447-48 (2009) (internal quotation marks and citations omitted). 9 Id. at 448. 10 Id. 11 Id. at 448-49 (quoting Frew v. Hawkins, 540 U.S. 431, 441 (2004)). 12 Id. at 449-50 (internal quotation marks omitted). 13 Frew v. Hawkins, 540 U.S. 431, 442 (2004). 14 Horne, 557 U.S. at 450. 15 Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 383, 391 (1992).
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unworkable because of unforeseen obstacles,” or (3) “enforcement of the decree without modification would be detrimental to the public interest.”16 Changed factual conditions may also include when the objects of the decree have been attained and a durable remedy has been implemented.17 A durable remedy is one that “gives the [c]ourt confidence that defendants will not resume their violations of plaintiffs’ constitutional rights once judicial oversight ends.”18 At that point, “continued enforcement of the order is not only unnecessary, but improper” and the court “abuses its discretion when it refuses to modify an injunction or consent decree in light of such changes.”19
III. ANALYSIS Plaintiffs move the court to enforce the CAO and related decree provisions, arguing that
Defendants failed to comply with its requirements, and even if the court finds that Defendants have complied with the CAO’s requirements, their actions have failed to meet the objectives of the Decree, and further action is required. Plaintiffs propose that:
(1) the parties negotiate a comprehensive proposal to: a. monitor the provider supply by provider type, statewide, by HHS Region and for class member distances to provider; b. objectively measure the adequacy of the provider supply; c. study the causes of any shortages (including independent surveys of enrolled and un-enrolled providers; d. external and independent assessments of the adequacy of reimbursement rates; and
16 Id. at 384-85. 17 Evans v. Fenty, 701 F. Supp. 2d 126, 148 (D.D.C. 2010). 18 Id. at 171. 19 Horne v. Flores, 557 U.S. 433, 447, 450 (2009) (internal quotation marks omitted).
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(2) jointly develop corrective action plans for the Defendants to implement in order to correct any shortages, including provisions for measurable evaluation of the effectiveness of those corrective actions.20
Defendants respond that they have fully complied with the CAO and the corresponding Decree provisions so that the judgment is satisfied. Alternatively, Defendants move the court to modify the Decree because its enforcement is no longer equitable.
First, the court addresses Defendants’ position that the court should apply the legal standard for finding a party in civil contempt in considering Plaintiffs’ motion for further action. Doing so would require Plaintiffs to provide clear and convincing evidence in support of their motion. The court declines to do so in this instance. Plaintiffs’ motion does allege that Defendants’ have failed to satisfy the objectives of the Decree and the CAO. However, Plaintiffs do not seek sanctions for that violation. Instead, Plaintiffs ask the court to order that further action be taken to bring Defendants into compliance with that Decree. The agreed-upon CAO, entered after Defendants failed to comply with the Decree, specifically contemplates Plaintiffs’ actions in returning to court to resolve the parties’ dispute regarding whether further action is required to meet the objectives of the Decree. Indeed, in its Order entering the CAOs, the court specifically noted that “Defendants’ lead trial counsel pointed out that Defendants can comply with the Order because they had input into its development.”21 Plaintiffs argue that Defendants have not complied with the CAO, and, even if they had, further action would still be required to meet the Decree’s objectives. Defendants’ assented to this procedure, and the court sees no reason to hold Plaintiffs’ to a higher burden in asserting their argument that further action is required.
20 Dkt. 1033 at 2-3. 21 Dkt. 663 at 12.
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Second, Plaintiffs have vehemently contended that the “principles of contract law” should guide the court’s interpretation of the Decree. More specifically, Plaintiffs argue that no Decree provision should be read in isolation, and all Decree provisions should be interpreted in light of the objectives of the Decree, in accordance with contract law principles. Plaintiffs appear to contend that by addressing each CAO and its related Decree provisions separately the court is somehow not requiring that Defendants meet the Decree’s objectives.22 The language of the CAOs belies this notion. The court explained in adopting the agreed-to CAOs that “[o]nce Defendants comply with the part of the Decree and related section of the Corrective Action Order, then the court may terminate that part of the Consent Decree and the Corrective Action Order.”23 The “‘assessment conference’ process provides a clear potential end point for Defendants’ obligations under the Consent Decree.”24 The CAOs unmistakably contemplate that the court will address each one and its related Decree provisions individually as a way of expediting Defendants’ compliance with a multifaceted Decree and providing a potential end point for Defendants’ obligations to the court.25 Indeed, Judge Justice explained that “[t]he complexity of this topic is demonstrated by the fact that the parties propose an eleven-part Corrective Action Order, with subparts for each of those eleven parts.”26 There is no evidence or argument put forward by Plaintiffs to show that this agreed procedure fails to give effect to the purpose of the parties or the court when the Decree was entered.
22 Hr’g Tr. 20:20-25, Dec. 19, 2013, Dkt. 1129 (“The Defendants’ argument is largely an attempt to divide the Consent Decree up into pieces, as if they’re isolated and unrelated, and present them to the court, I think, out of context and try to get them broken down and, you know, basically vacated. I don’t think—we don’t think that is the correct way to analyze this.”). 23 Dkt. 663 at 15 (emphasis added). 24 Dkt. 663 at 15. 25 Dkt. 663 at 14. 26 Dkt. 663 at 8.
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a. Have Defendants satisfied the CAO and its related Decree provisions? Defendants contend that they have satisfied the requirements of the provider supply CAO and its related Decree provisions and are therefore entitled to be released from its enforcement under prong 1 of Rule 60(b)(5). Plaintiffs contend that Defendants have failed to satisfy the provider supply CAO by: (1) refusing to acknowledge and address provider shortages identified by the Provider
Supply Assessments; (2) failing to maintain sufficient payment levels to attract enough providers to serve the
class; and (3) failing to provide accurate information to class members and providers regarding
which providers are accepting new patients and their limits on accepting new patients. Defendants first note that the court has never found them in violation of the Decree provisions related to an adequate provider supply.27 Nonetheless, the parties agreed to the CAO relating to provider supply in 2007. Defendants contend that the following were specific actions required under the CAO:
• rate increases for medical and dental providers of class members; • application of $150 Million toward “strategic initiatives” to increase the access of
class members to Medicaid services; • preservation of Defendants’ contractual timeliness and distance standards for
managed-care organizations (MCOs); • provision of semi-annual reports on the provider supply for class members
enrolled in PCCM and MCO service delivery areas; • provision of two “major” and two “interim” assessments of the Medicaid Provider
Base, alternating between the two reports, spaced over four years; and • creation of an online provider directory and use of Defendants’ “best efforts” to
ensure accuracy.
27 Dkt. 1052 at 5-6.
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Defendants maintain that these tasks have been completed “at a cost of well over a billion dollars in all funds.”28 Defendants provided the court with a summary of the actions they took in
response to each bullet point of the CAO and the corresponding Decree paragraphs that can be
found at Dkt. 1055-3.
The objectives of the “Decree References” in the provider supply CAO (Dkt. 637-9) can be summarized as:29
• providing comprehensive, timely, and cost effective health services to children;
• providing recipients, including those served by managed-care organizations, medical and dental check ups on a regular schedule;
• providing recipients all needed follow-up health care services permitted by Medicaid;
• ensuring an adequate corps of capable providers to achieve these goals,
• ensuring that managed-care organizations have an adequate supply of appropriate providers (including specialists) who are located conveniently so that recipients do not face unreasonable 1) delay scheduling appointments, 2) delay waiting for appointments once at the office; and
• maintaining updated lists of providers who serve EPSDT recipients including providers’ practice limitations.
To reach these objectives, the provider supply CAO mandated in bullet point 1:
(1) Care will be provided by an appropriate provider within Defendants’ managed care distance standards (“distance standards”) unless a provider of the appropriate type is not located that close to the class member’s home. . . Within managed care, Defendants will ensure that the supply of primary care providers (PCPs) enrolled in each Managed Care Organization (“MCO”) and within Primary Care Case Management (“PCCM”) is adequate to allow class members to choose among at least two PCPs appropriate to meet the class members’ needs.
Bullet point 2 explains
(2) This Order relies on the timeliness and distance standards in Defendants’ current managed care contracts. Defendants may change these standards only if new standards are more favorable to class members. Defendants will not change these
28 Dkt. 1052 at 7. 29 Dkt. 637-9 at 1-2 (citing Dkt. 135 ¶¶ 2, 3, 88, 93, 143, 190, and 197).
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standards so that they require class members to travel longer distances or wait longer for appointments than is now true under Defendants’ current contracts. The current standards require that the MCO must ensure that all members have access to an age-appropriate PCP in the provider network with an open panel within 30 miles of the member’s residence, that all members have access to an outpatient Behavioral Health Service provider in the network within 75 miles of the member’s residence, and that all members have access to a network specialist physician within 75 miles of the member’s residence for common medical specialties, which, for child members, shall include orthopedics and otolaryngology. Paragraph 197 of the Decree stated that “TDH will assure by various means that managed care organizations have an adequate supply of appropriate providers who can serve EPSDT recipients (including specialists) located conveniently so that recipients do not face unreasonable 1) delay scheduling appointments, 2) delay waiting for appointments once at the office or 3) travel times to get to the office as authorized by SB10 and SB 600.” Defendants have represented to the court that 91% of children on Medicaid in Texas are now served by MCOs.30 This CAO required Defendants to ensure that care was available to class members by an appropriate provider within the managed-care distance standards (where possible), and that MCOs enroll an “adequate” supply of PCPs to allow class members a choice between two providers. It also prohibited Defendants from detrimentally changing the timeliness and distance standards required of MCOs. Defendants declare that the vast majority of class members in managed-care have access to a choice of two primary care providers within 30 miles of their residence and to “common specialists” as required by the Decree and CAO. To support their claim, Defendants put forth copies of uniform contracts entered with MCOs serving Medicaid and declarations from nineteen MCOs affirming their compliance with the distance standards in the contracts.31 The Uniform Managed Care Contract for STAR and STAR+PLUS recipients requires MCOs to “ensure that all Members have access to an age30 Hr’g Tr. 104:13-14, Dec. 19, 2013, Dkt. 1129. 31 See Dkt. 1055-3 at 1-2.
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appropriate PCP in the Provider Network with an Open Panel within 30 miles of the Member’s residence.”32 Defendants also put forth evidence regarding dental managed-care contracts and declarations from the state’s two dental managed-care providers, DentaQuest and MCNA, affirming their compliance with the state’s requirement that members have access to two or more general dental providers with an open practice within thirty miles of the member’s residence in urban counties and within 75 miles of the member’s residence in rural counties where possible.33
Defendants rely on the Declaration of Edli Colberg, Ph.D., a Program Specialist for the HHSC’s Strategic Support Division (SDS), to demonstrate Defendants’ compliance with the distance standards where possible. 34 Dr. Colberg concludes that “[a]s of February 2013, 99.6% of members under age 21 enrolled in STAR and STAR Health MCOs had access to 2 in-network PCPs within 30 miles of their residence.”35 Dr. Colberg also identifies the percentage of members under age 21 in STAR and STAR Health MCOs within 75 miles of an in-network provider of several types of specialists.36 For orthopedic surgeons, Dr. Colberg testifies that the statewide percentage of members under age 21 in STAR and STAR Health MCOs within 75 miles of an in-network orthopedic surgeon is 99.9%.37 For otolaryngologists, the percentage is 99.7%.38 For in-network psychiatry and neurology and child and adolescent psychiatrists, the percentages are 99.9% and 99.2%, respectively.39
32 Dkt. 1055-4 at 5-6. 33 Dkt. 1052 at 16, Dkt. 1059-7 ¶¶ 13-14, Dkt. 1064-4 ¶ 4. 34 Dkt. 1055-2. 35 Dkt. 1055-2 ¶ 14. 36 Dkt. 1055-2 ¶¶ 39-49. 37 Dkt. 1055- 2 ¶ 44. 38 Dkt. 1055-2 ¶ 45. 39 Dkt. 1055-2 ¶¶ 45-46.
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MCOs are also obligated to “ensure that their networks are of sufficient size that appointments can be scheduled within specified generally accepted wait times.”40 The timeliness and distance standards are based on regulations issued by the Texas Department of Insurance.41 Defendants have also put forth evidence of the MCOs’ efforts to ensure their provider networks are adequate.42 To monitor their compliance, all MCOs are contractually required to have a process for plan members to submit complaints.43 Complaints are logged and reported to HHSC for investigation.44
Plaintiffs cite to the Declaration of Glenn Flores, M.D., in which he testifies that physicians still encounter problems serving class members. Plaintiffs generally object to Defendants’ arguments and evidence demonstrating their compliance with the the distance standards and contend “that the distance standards are not a meaningful measure of the adequacy of the provider supply, which must be shown to satisfy the obligations of the Decree, particularly at ¶¶ 88 and 197.”45 Plaintiffs argue that proximity to providers does not guarantee that class members can actually access providers. Plaintiffs argue that “[e]ven if applied properly the distance standards are poorly suited to be a sole or even substantial metric for determining the adequacy of provider supply.”46 Plaintiffs’ expert, Dr. Steinhauer, testified that “that even these distances probably present a barrier for some children with Medicaid that keeps them from getting a dental care that they need.”47 While Plaintiffs now criticize the distance standards, Plaintiffs agreed to the use of those distance standards in the CAO and cannot now contend that
40 Dkt. 1052 at 42. 41 Dkt. 1052 at 43-44. 42 Dkt. 1052 at 45-46. 43 Dkt. 1052 at 26. 44 Dkt. 1052 at 46. 45 Dkt. 1097 at 34. 46 Dkt. 1097 at 3. 47 Dkt. 1034-5 ¶ 22.
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they are entirely irrelevant in determining the adequacy of the provider supply. Further, Plaintiffs disagree that Defendants have complied with bullet points 1 and 2 because Defendants relied on data reported by MCOs and not through their own independent data.48
The court finds that Defendants have taken action to ensure that care is available to class members by an appropriate provider within the managed-care distance standards articulated in the CAO through contractually requiring MCOs to meet the standards and setting up a process to monitor their compliance through reporting and complaint investigations. The contracts also contractually require the MCOs to enroll enough providers to allow class members a choice between two providers. Finally, Defendants have not detrimentally changed the timeliness and distance standards. The evidence shows that Defendants have fulfilled the requirements of these two paragraphs of the provider supply CAO.
Next, the CAO requires that (3) When class members call Defendants or their contractors (including but not
limited to the Texas Health Steps (“THSteps”) toll free number, MCOs, PCCM) for help finding a doctor, dentist, case manager or other provider of health care services, whenever possible the caller will be given the names of at least two providers of the appropriate type who are accepting new Medicaid patients of the relevant age at the time of the call, within the timeliness and distance standards required by this Order. Defendants put forth their Exhibit 34,49 a compilation of Quarterly Monitoring Reports (QMRs), and Exhibits 9-30, declarations from the twenty-one MCOs, to show their compliance with this portion of the CAO. Defendants’ evidence highlights their efforts to implement policies and training that requires employees to give callers the names of at least two available providers within the distance standards whenever possible. The April 2013 Quarterly Monitoring Report explains that “Defendants have implemented the practice of providing a choice of at least two
48 Hr’g Tr. 55:7-8, Dec. 19, 2013, Dkt. 1129. 49 Dkt. 1070-4
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providers (doctor, dentist, case manager, or other provider of healthcare service) upon client request.”50 Plaintiffs contend that Defendants’ analysis does not provide a way of knowing “whether the two providers that they referred to are actually accepting new Medicaid patients.”51
Plaintiffs also represent that callers are often given names of providers that are not accepting new patients,52 but Plaintiffs do not point to any specific evidence on this point.
Defendants have taken steps to ensure that whenever possible, callers will be given the
names of at least two providers of the appropriate type who are accepting new Medicaid patients
of the relevant age at the time of the call, within the timeliness and distance standards required by the provider-supply CAO.53
Next,
(4) Defendants will comply with federal law concerning the availability of a choice of at least two MCOs in those areas of the state that are served by MCOs. In areas of the state served by PCCM there will be a choice of at least two PCPs. It is understood that federal law allows for short periods in which only one MCO is available in a service delivery area when, for instance, one of the two MCOs in the area is the subject of an enrollment freeze sanction or termination. Similarly, within PCCM, it is understood that in some rural areas of the state there may be only one PCP available. Apart from any pertinent rules pertaining to the Medical Transportation Program, nothing herein will prevent class members or their families from choosing to receive information about or assistance making an appointment with a provider at a greater distance than that specified in the plan.
Defendants have represented to the court that PCCM is no longer utilized in Texas, therefore
those statements in the CAO related to PCCM are now obsolete. To prove their compliance with
the remainder of this point, Defendants put forth the Declaration of Rudy Villarreal, Director of Health Plan Management (“HPM”) at the HHSC, Exhibit 35, Attachment A.54 Defendants
represent that they are in compliance with federal law in all thirteen managed-care service areas 50 Dkt. 1070-4 at 2. 51 Hr’g Tr. 56:13-20, Dec. 19, 2013, Dkt. 1129. 52 Hr’g Tr. 57:10-12, Dec. 19, 2013, Dkt. 1129. 53 See Dkt. 1055-3 at 2-3. 54 Dkt. 1070-5 at 6.
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of the state.55 Plaintiffs conceded at the hearing that “as far as we know, they’re in compliance
with [bullet point 4] . . . we’re not arguing otherwise today.”56 Accordingly, the court finds that
Defendants have satisfied the requirements of bullet point 4 of the provider-supply CAO.
Bullet point 5 states
(5) Defendants’ and their contractors’ payment policies for all providers who serve class members will be consistent with currently accepted professional standards and practices. These policies will require coverage of all medically and dentally necessary health care services provided to class members. Payment levels will be sufficient to attract enough providers to serve the class, and comply with the Decree and this Order with respect to all class members, whether or not they are enrolled in managed care. In the 2008-09 biennium, for services provided to class members: a) reimbursement rates for dental providers will be increased to 50% above the SFY2006-07 reimbursement rate levels; and b) reimbursement rates for physicians and other professionals will be increased to 25% above state fiscal years 2006-07 levels. Furthermore, another $50 million will be applied toward additional reimbursement increases for specialists who treat class members. No later than September 1, 2007, Defendants and their contractors will adjust provider payment levels as needed to assure compliance with this Corrective Action Order and with the Decree. An additional $150 million will be applied toward strategic initiatives to improve class members’ access to services. By July 23, 2007, the parties will begin to confer to determine if they agree on an approach to the use of the strategic initiative funds. Defendants will report on the status of the strategic initiatives in each quarterly report to the Court including an approximation of the number of class members served. A more detailed report will be provided annually in the July quarterly report.
“[S]ubsequent to the adoption of the CAO, a Physician Payment Advisory Committee was
convened and a decision made that rather than increase all dental reimbursement rates by 50%,
more good could be accomplished by allocating the same total amount of funds to raising the
reimbursement rates of 54 of the most commonly used dental codes by 100%.”57
Plaintiffs concede that the CAO only required a one-time rate increase, and that the
increase was implemented and “is credited with a corresponding increase in the percentage of
Texas dentists participating, at least to some extent, in Medicaid . . . [and] statewide, did increase
55 Dkt. 1052 at 18. 56 Hr’g Tr. 57:15-17, Dec. 19, 2013, Dkt. 1129. 57 Dkt. 1052 at 21.
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the number of class members being seen by those who have been participating.”58 It is also undisputed that $150 million was applied toward strategic initiatives and reported on in the QMRs as required. Indeed, Defendants contend that thirteen out of twenty-two strategic initiatives continue to be funded.59 The remaining provisions require Defendants to: (1) implement payment policies consistent with currently accepted professional standards and practices; (2) require coverage of all medically and dentally necessary health care services for class members; and (3) maintain payment levels sufficient to attract enough providers to serve the class. Plaintiffs argue that the 2007 increase was not sufficient to attract enough providers to “keep pace with the growth of the class” and is therefore insufficient.60
In support of their allegation, Plaintiffs point to the testimony of Dr. Glenn Flores, reviewing an American Academy of Pediatricians survey which “identifies low provider payment as a very important barrier to pediatrician participation in Texas.”61 Plaintiffs highlight that the State applied a 2% reduction in reimbursement rates (1% in 2010 and 1% in 2011) and argue that Defendants failed to address the corresponding 21% increase in medical care rates as reported by the Consumer Price Index since 2007.62 Plaintiffs assert that the “[r]educed reimbursements to providers has certainly caused their withdrawal from Medicaid.”63 Plaintiffs, through Dr. Flores’s testimony, contend that a shortage of PCPs generally in Texas allows PCPs to be more selective about whom they will accept as patients and that privately insured patients
58 Dkt. 1033 at 26 n.21. 59 Dkt. 1052 at 22 n.46 (“Thirteen of the original twenty-two initiatives have been continued and integrated into Medicaid operations and client services through the 2012-13 biennium; on two of thirteen alone, HHSC has spent nearly $38 million for FY 2012.”). 60 Dkt. 1033 at 26 n.21. 61 Dkt. 1033 at 19. 62 Dkt. 1097 at 32-33. 63 Dkt. 1033 at 19, 26.
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are more economically attractive than those on Medicaid.64 Plaintiffs also assert that the evidence shows that Defendants are not in compliance with the CAO and Decree requiring that payment levels be sufficient to attract enough providers to serve the class.65
Defendants contend that “payment policies for providers are consistent with currently accepted professional standards and practices, and these policies require coverage of all medically and dentally necessary health care services provided to children under age 21with Medicaid.”66 Defendants criticize Dr. Flores’s reliance on the AAP survey.67 The court is persuaded by Defendants’ arguments and does not find the AAP survey to be a reliable assessment of the sufficiency of Medicaid payment rates in Texas.68 The court does not question the reliability of Dr. Flores’s testimony regarding his personal experience in treating Medicaid patients. Defendants concede that they have implemented “two separate, one percent (1%) reductions in Medicaid reimbursement rates.”69 Defendants also respond that the reduction in reimbursement rates was a result of “sizeable shortfalls in the state budget [that] resulted in significant cuts (approaching 10%) to all state agency budgets,”70 but that these small reductions were “a direct result of HHSC’s consistent efforts to maintain provider reimbursement at levels sufficient to assure an adequate supply of health care providers for children under age 21 with Medicaid.” 71 Further, the rates paid to providers are dictated by state and federal law and based
64 Dkt. 1034-6 at 5. 65 Dkt. 1097 at 34. 66 Dkt. 1052 at 19-20. 67 Dkt. 1052 at 79-80. 68 Dkt. 1052 at 58, 78-9 69 Dkt. 1052 at 22. 70 Dkt. 1098 at 17. 71 Dkt. 1052 at 22.
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upon “stakeholder input.”72 Defendants point the court to their Exhibits 2, 5, 8, 31, 36, 37, 38, 39, 40, 43, and the QMRs in support of their contentions.
At the time of the Decree, Plaintiffs contended that “[o]n average, Medicaid reimbursement rates are slightly less than 50% of physician’s usual and customary charges.”73 This was considered one of several reasons that providers declined to treat Medicaid recipients. In 2007, “Medicaid reimbursement rates [had] not increased for years. . . .”74 The rate increases implemented in 2007 were to be based in part on 2007 Medicare relative value units. The court noted at that time that Defendants had implemented RVUs in 1992 but had not updated them ”75 fifteen years later. Now, the process by which Medicaid reimbursement rates are set is detailed and complex. 76 Defendants rely upon the Declaration of Dan Huggins to describe the process by which Medicaid rates are determined by HHSC. Mr. Huggins is the Director of Acute Care Rate Analysis at HHSC.77 Mr. Huggins testifies that now“[t]here are processes in place at HHSC and CMS to determine the adequacy of Medicaid reimbursement rates on an ongoing basis.”78 Further, “Texas Medicaid has a process in place to assure that all rates are reviewed at least once every two years.”79 Michelle Long, HHSC’s Frew Coordinator, testified that “[a]ccording to the Texas Medicaid fee schedule, as of July 11, 213, Medicaid fee-for-service reimbursement remains well above the rates prior to September 2007, and in some cases, higher than they were before the effective 2% cut in February 2011.”80
72 Dkt. 1052 at 106. 73 Dkt. 135 ¶ 86. 74 Dkt. 663 at 18. 75 Dkt. 663 at 23. 76 See Dkt. 1070-7 ¶¶ 5-11; Dkt. 1052 at 20. 77 Dkt. 1070-7 ¶ 2. 78 Dkt. 1070-7 ¶ 12 (emphasis added). 79 Dkt. 1070-7 ¶ 13. 80 Dkt. 1052-3 ¶ 50; see also Dkt. 1054-3.
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It is undisputed that Defendants timely implemented the specific rate increase required by this part of the provider-supply CAO. But in entering the CAO, the court noted that “[t]he settlement, however, specifically ‘does not address what reimbursement rates will be needed for future years after the 2008-2009 biennium.”81 This was intended to allow “adjustment of reimbursement rates if further increases are necessary to improve class members’ access to necessary health care.”82 Plaintiffs only contend that Defendants have not implemented sufficient payment levels to attract enough providers to serve the class. But Plaintiffs also contend that the provider supply has never kept pace with the growth of the class, even when the 2007 rate increases were implemented. Plaintiffs have put forth no evidence of what they contend rates should be to attract enough providers to serve the class. Further, Plaintiffs have not pointed to any evidence that the small rate decreases in 2011 have decreased the provider supply. There is no evidence that Defendants are not in compliance with federal law with regard to Medicaid reimbursement rates for providers at this point, and the consent decree may exceed appropriate limits if it is “aimed at eliminating a condition that does not violate federal law or does not flow from such a violation.”83 Defendants have created systems to frequently review Medicaid rates and confirm that the rates are appropriate.84 It is unclear what further action, at this point, is even feasible to increase Texas Medicaid rates. The court finds that Defendants have satisfied their obligations under bullet point 5 of the provider-supply CAO.
Bullet points 6 and 7 require: (6) Defendants will make readily available to all providers who serve class members
complete, accurate and up to date information about which providers of health care services in each geographic area are accepting new Medicaid-covered patients. The information for each will include: a) type of provider (e.g., general 81 Dkt. 663 at 29; Dkt. 663 at 4 n.1. 82 Dkt. 663 at 29-30. 83 Horne v. Flores, 557 U.S. 433, 450 (2009). 84 Dkt. 1070-7.
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dentist, family medicine physician, pediatric neurologist, physical therapist, case manager); b) with which Medicaid managed care organizations the provider has contracted; c) whether the provider participates in fee for service Medicaid; and d) practice limitations such as age range of patients accepted.
(7) By Fall 2007, Defendants will initiate their new web-based Provider Look Up system. Defendants expect that the new system will improve the accuracy of their information about Medicaid-enrolled health care providers of all types, because to be able to use the system, providers will be required to update important information on a regular basis. Defendants will use their best efforts to ensure the accuracy of lists of enrolled health care providers in managed care (HMO and PCCM) and fee for service. “Accurate” means that the lists provide accurate and up to date information about each enrolled health care provider, as follows: a) name, b) address, c) telephone number, d) nature of practice (pediatrician, general dentist, pediatric cardiologist, etc.), e) language(s) spoken other than English, f) whether the provider is accepting new patients and any limits on new patients accepted, such as lengthy waits for a first appointment, and g) practice limitations (only newborns, only teens, etc.). Defendants will be able to provide accurate information by specialty and location (for example, endodontists in the Dallas area; pediatricians in Houston, case managers in Region 1). Defendants will use their best efforts to ensure that only accurate information about enrolled health care providers is provided to class members, whether the information is provided by Defendants or by their contractors. Defendants will also use their best efforts to ensure that only accurate information is available by telephone, in writing and on an easy-to-use-website for the use of health care providers who serve class members.
Paragraph 93 of the Decree also requires Defendants to “maintain updated lists of
providers who serve EPSDT recipients. The lists will specify practitioners’ practice limitations,
if any. Defendants will provide to appropriate NHIC staff information about provider practice
limitations and encourage NHIC to use the information.”85 “NHIC”, or National Heritage
Insurance Company, was replaced by “TMHP” or the Texas Medicaid and Health Partnership in
2004.
It is undisputed that Defendants implemented an Online Provider Lookup (“OPL”)
system by November 2007. Providers are required to update their information every six
85 Dkt. 135 ¶ 93.
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months.86 The OPL is also updated daily with data from MCOs.87 MCOs are required by Defendants to “maintain accurate current online and print version of their respective provider directories, to update their online provider lists twice a month, and to update their hardcopy versions quarterly.”88 HHSC “monitors and confirms the MCOs’ efforts to maintain accurate lists and reports a summary of those efforts to the Court in the MCO Activities Reports in each QMR.”89 HHSC also performs periodic random checks of provider directors.90 An MCO that fails to comply is put on a corrective action plan until improved.91 Defendants point the court to Exhibits 8, 9-29, 35, 36, 42, 43, and Dkt. 1049-10, the July 2013 QMR, in support of their contentions. Further, Defendants contend that “[s]ince January 2009, TMHP has not received any phone calls or written correspondence regarding complaints from providers or clients about the accuracy of the data displayed in the OPL.”92 Defendants argue that they have complied with the CAO by using their “best efforts” to ensure the accuracy of the timely created OPL and the MCOs’ provider directories.93 Finally, Defendants argue that the isolated complaints highlighted by Plaintiffs are “not persuasive of anything,”94 particularly because the majority of the complaints received were resolved by Defendants.95
Plaintiffs contend that Defendants have failed to satisfy the Decree and CAO by not using their best efforts to ensure the accuracy of provider information given to class members or the accuracy of information supplied to providers to make referrals. Plaintiffs point to complaints
86 Dkt. 1052 at 25. 87 Dkt. 1052 at 25. 88 Dkt. 1052 at 26. 89 Dkt. 1052 at 26. 90 Dkt. 1052 at 27. 91 Dkt. 1052 at 27. 92 Dkt. 1052 at 37. 93 Dkt. 1052 at 104. 94 Dkt. 1052 at 58, 107-113. 95 Dkt. 1084-2.
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received by Defendants regarding inaccurate information being provided by their plans.96 Plaintiffs also, for the first-time in the sur-reply, put forth an affidavit from Jennifer Dailey, the mother of a class member who became eligible for Medicaid in October 2013.97 Ms. Dailey details her difficulties in attempting to locate a PCP for her daughter based on the provider information she was given from the MCOs and the OPL. Plaintiffs also put forth testimony from Maria Sauceda, Legal Secretary to Plaintiffs’ counsel, regarding her attempt to find providers that may be available in her region, despite the fact that she is not currently on Medicaid.98 Plaintiffs contend that “[t]hese declarations are evidence not only of widespread inaccuracies in Defendants and MCOs’ provider lists, but that Defendants and their MCOs are aware of the inaccuracies and do not correct them.”99 Plaintiffs’ complain that Defendants’ OPL relies on providers to update their own information (even though, the CAO specifically dictates that “providers will be required to update important information”) and only requires that it be updated every six months.100 At the same time, Plaintiffs complain about the administrative burden on providers to participate in Medicaid.101
The court finds that Defendants have used their best efforts to ensure accuracy of the OPL and contractors’ lists including “requiring providers in their Medicaid provider agreement to provide timely notification of any changes to their demographic information, deactivating providers who have not submitted a claim or had managed-care encounter activity for a period of 24 months, running nightly queries of the Encounters Online Data Store to update the online provider lookup (OPL) (utilizing updated data from files submitted by MCOs), and providing 96 Dkts. 1033-3, 1034-4. 97 Dkt. 1101-2. 98 Dkts. 1097-3, 1101-1. 99 Dkt. 1101 at 4. 100 Dkt. 1097 at 27-28. 101 Dkt. 1033 at 19 (“Other noted barriers include the Defendants’ burdensome paperwork, complex programs and confusing policies, and unpredictable payment.”).
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incentives to providers to comply with Defendants’ mandate that providers verify their
information on the website every six months.”102 Indeed, MCOs are contractually
required to maintain accurate and current online and print versions of their respective lists, to update their lists twice a month, and to update their hardcopy versions quarterly. All Medicaid MCOs report their processes for updating their lists to HHSC, which monitors and confirms the MCOs’ efforts to maintain accurate lists and reports a summary of those efforts to the Court in the MCO Activities Reports in each QMR.103
Defendants have satisfied their obligations under bullet points 6 and 7 of the CAO.
Bullet points 8-11 state that
(8) Every other year Defendants will conduct a “major assessment” of its Medicaid Provider Base. The assessment will include a) all of those provider types that provide services to class members; b) for each provider type, the number and percent of providers who are “available” to class members; c) for each provider type, the number and percent of providers who have provided any service to any class member; and d) for each provider type, the number of providers who are enrolled in Medicaid but have not provided any services to class members. In this assessment, Defendants will review the six months immediately preceding the start date of the assessment. If the major assessment identifies a shortage in any geographic area of any provider type(s) that provide services to class members, Defendants will develop a plan to address the shortage. The first major assessment will be completed no later than May 2008. The second major assessment will be completed within 24 months of the first major assessment.
(9) In the interim years, Defendants will conduct an “interim assessment” of the sufficiency of its “available” Medicaid Provider Base. The assessment will include the PCPs for class members, pediatricians, general dentists for class members, orthodontists, psychiatrists for class members, and psychologists for class members. If the interim assessment identifies a shortage of providers of any of these types in geographic areas of the state, Defendants will develop a plan to address the shortage. The interim assessments will be completed no later than 12 months after completion of the major assessments.
(10) For the purpose of the “major” and “interim” assessments, “available” means a health care provider who has provided at least one service to at least one new class member in the six months immediately preceding the start date of the assessment. Furthermore, for the purpose of these assessments, Defendants will
102 Dkt. 1098 at 7 n.11; see also Dkt. 1071-1 (Declaration of Andrea Daniell, Communication Officer, Government Healthcare Solutions, for Xerox State Healthcare LLC, which is the contractor for TMHP responsible for the OPL). 103 Dkt. 1098 at 7 n.12.
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independently assess whether health care providers are providing services to: a) new class members, and b) any class members. Defendants will not merely accept information on these topics from their contractors. (11) At their option, Defendants’ Research and Evaluation staff may complete the major and interim assessments. The Assessments were intended to provide the parties with more information regarding the number of providers actually taking new class member patients.104 The Assessments reveal for each type of provider: the number of enrolled providers, the number of enrolled providers that filed claims, the number of enrolled providers with new patient claims, and the number of eligible class members.105 A provider is considered “enrolled” in Medicaid if the provider bills Medicaid for a single service within the preceding twenty-four months, but all providers that are “enrolled” in Medicaid may not actually be “available” to see class members. A provider is “available” under the terms of this CAO when he or she has provided at least one service to at least one new class member in the six months immediately preceding the start date of the Assessment. Plaintiffs concede that the definition of “available” “includes many providers who may not be accessible to the Plaintiffs.”106 Defendants originally did not provide the Assessments in six-month increments, but instead provided Assessments of the preceding twelve months of data. In April 2012, this court ordered the Defendants to provide “a report showing the number and type of health care providers ‘available’ to class members, that is, those health care providers who have treated at least one new class member within the preceding six months, for the six month periods ending
104 Dkt. 663 at 33. 105 “Eligibles” is the “[n]umber of Medicaid Eligibles age birth through 20, excluding Women’s Health Program, Emergency-only eligible, and Medicare/Medicaid dual eligible not eligible for full Medicaid medical benefits, for the last month of the Assessment. See, e.g., Dkt. 912-1 at 5. 106 Dkt. 1097 at 13 n.9 (emphasis added).
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August 31 of the years 2008, 2009, 2010, and 2011.”107 Defendants complied with that order and submitted correct Assessments.108 Plaintiffs contend that Defendants’ failure to timely produce the Assessments in accordance with the terms of the CAO prevented identification of provider shortages and evaluation of the success of Defendants’ efforts to improve the provider supply. Defendants contend that the Assessments do not show any provider shortages that require corrective action.
Defendants did initially fail to comply with the CAO when they unilaterally decided to report the statistics in twelve-month increments instead of complying with the terms of the CAO requiring six-month increments—to which they agreed and affirmed to the court was “‘something that works and is efficient . . . .’”109 Defendants instead opted to report twelvemonth increments and to conduct an additional analysis based on the distance standards laid out in the CAO. Defendants contend that this somehow “exceeded the requirements” of the CAO because it included an additional analysis not required by the terms of the order.110 Defendants’ purported reasons for producing the twelve-month Assessments are “that: (1) claims take up to eight months to finalize, meaning that going back only six months data will be missing, and (2) Plaintiffs insisted that HHSC revise its first completed, major assessment, several times, and instead break down the results into 85 provider specialties and subspecialties,”111 some of which are rarely utilized by class members for various reasons. Defendants also contend that Plaintiffs’ argument that they failed to comply with this portion of the CAO is “both moot and specious” because Defendants did ultimately produce the Assessments in six-month increments (in
107 Dkt. 898. 108 Dkt. 912. 109 Dkt. 663 at 12 (quoting Defendants’ lead trial counsel from the hearing regarding the implementation of the Corrective Action Orders). 110 Dkt. 1052 at 61-63. 111 Dkt. 1025 at 62 n.152.
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response to this court’s order) and because the delay in the production was attributable to Plaintiffs’ “insistence on revising the original major assessment”.112 Defendants maintain that they “timely filed the required assessments, and—based upon Defendants’ determination that 12month increments would provide more useful information—assessments were conducted using data for 12-month increments, as opposed to 6-month increments.”113 Defendants did not timely file the required Assessments, which were only completed and filed after an additional court order.
The court is concerned about the actions taken by both sides with regard to these Assessments. First, Defendants should have approached Plaintiffs about their concerns that the six-month increments would provide less than useful information and attempted to negotiate an amendment to the CAO instead of unilaterally producing an assessment other than what was agreed upon.114 There is no evidence put forth by Defendants that any negotiation was attempted with regard to the timeframe of the Assessments. In 2005, the court admonished Defendants that by unilaterally disregarding provisions of the Consent Decree, Defendants faced the possibility of “equitable sanctions for willful violation of Consent Decree provisions.”115 The court reminded Defendants that “[u]nless and until the Court grants a Rule 60(b) motion to modify or dissolve the decree, the obligations contained in the Consent Decree are binding and enforceable, and Defendants may not choose to disregard them after unilaterally determining that a provision is unnecessary or undesirable.”116 Defendants accuse Plaintiffs of delaying the Assessments by
112 Id. 113 Dkt. 1098 at 13; see also Dkt. 1052 at 28. 114 Dkt. 1052 at 21. The parties managed to agree to an amendment of the provisions related to the raise in reimbursement rates for dental services required by the CAO after it was initially filed with the court. 115 Frew v. Hawkins, 401 F. Supp. 2d 619, 653-54 (E.D. Tex. 2005) (addressing Defendants’ willful failure to comply with portions of the Consent Decree related to Statewideness reports). 116 Id. at 654.
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requesting revisions, but it is unclear to the court why the time-period issue was not addressed by the parties during those discussions. The Declaration of Michelle Long explains that Defendants agreed to add additional provider specialties and subspecialties to the Assessments.117 Ms. Long also testifies that “the statistical staff at HHSC Strategic Decision Support (HHSC SDS) expressed concern that the numbers for some provider types would be too small to draw meaningful conclusions if only six months of data were analyzed; based upon their recommendation, the reporting time frame was expanded to twelve months.”118 Ms. Long’s testimony does not show that Defendant made any attempt to confer with Plaintiffs regarding this change. The Declaration of Jane Meier, a Research Specialist for HHSC’s Strategic Decision Support Division (“SDS”) explains that because Defendants believed that “[r]eporting six-month counts for relatively uncommon subspecialties would have made data patterns more difficult to identify,” “Defendants’ Strategic Decision Support . . . revised the character of the report to accommodate Plaintiffs’ request while providing data in a way that could be meaningfully reviewed.”119 While that may be true, their actions still amounted to a violation of the CAO. Second, Plaintiffs failed to bring this issue to the court’s attention until after all of the Assessments had been completed in 2012. At that point, the parties had to brief the issue, the court had to conduct a hearing, and then the court ordered Defendants to go back and re-do the Assessments. Now the parties have re-briefed the issues and the court has held a second hearing and reexamined the issues and the voluminous evidence. This was an expensive and timeconsuming process for all involved, which ultimately ended up seriously delaying the conclusion of this CAO. Nonetheless, Defendants have now produced the Assessments as required.
117 Dkt. 1052-3 ¶ 13. 118 Dkt. 1052-3 ¶ 13. 119 Dkt. 1071-5 ¶ 20.
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Further, Defendants admit that they “didn’t do anything in response to [Plaintiffs’]
Assessments” because Defendants felt the Assessments did not provide any actionable information.120 Defendants contend that both the six-month and twelve-month Assessments do
not reveal any provider “shortages” because the Assessments only show the number of providers
that billed for services to a new class member within the previous six months, and it is impossible to draw any conclusions based on that information alone.121 Yet the CAO requires
Defendants to develop a plan to address shortages identified by the Assessments. Defendants’
argument that it is actually impossible for the Assessments to identify a shortage is disingenuous given that they agreed to and had input on the process laid out in the CAO. 122
Plaintiffs concede that “[f]or some provider types, the Assessments show increases in the number of “available” providers.”123 However, Plaintiffs argue that “these small increases are in most cases outdistanced by larger percentage increase in numbers of class members”124 and are therefore evidence of an ongoing shortage.125 Plaintiffs contend that a comparison of the
provider supply at the time of the CAO “to the provider supply now as compared to the size of
120 Hr’g Tr. 161:22-162:2, Dec. 19, 2013, Dkt. 1129; Dkt. 1052-3 ¶ 27 (“Data included in the final (2011) interim assessment did not indicate a Medicaid provider shortage in any geographic area.”); see also Dkt. 1052 at 29. 121 Dkt. 1098 at 13; Dkt. 1052-3 ¶ 10 (“The major and interim assessments did not provide, and were not required to provide, information regarding the number of children who needed a health service, and they did not identify the number of providers available to provide a service if one had been requested.”); Dkt. 912 at 2 (“ . . . Defendants caution against the making of any broad, qualitative conclusions regarding whether a particular number of providers is the appropriate amount to serve the class based entirely on these assessments.”). 122 Dkt. 663 at 12 (“Defendants’ lead trial counsel pointed out that Defendants can comply with the Order because they had input into its development. It requires Defendants to do things that are possible and make sense.”). 123 Dkt. 917-1 at 2. 124 Dkt. 917-1 at 2-3; Hr’g Tr. 69:3-7, Dec. 19, 2013, Dkt. 1129. 125 Hr’g Tr. 71:10-15, Dec. 19, 2013, Dkt. 1129. Plaintiffs made a similar argument in seeking further action on the CAO pertaining to lagging counties. Plaintiffs argued that any increase in participation was “minimal” and did not satisfy the objectives of the Decree. Dkt. 1020 at 12-13.
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the class . . . represents a significant step backwards.”126 Furthermore, Plaintiffs point out, and Defendants concede, that for some specialties there is a decline in the number of available providers. For instance, the number of available pediatricians declined in three regions. Defendants respond that the CAO requires them to make two PCPs available to class members and not two pediatricians, and that pediatricians are a subset of PCPs, the number of which increased in the same regions. Ms. Meier explains that “[p]ediatricians are one of four specialties that can act as primary care providers (PCPs), the first contacts for access to care, and the decreases in available pediatricians were more than offset by increases in available PCPs.”127 Indeed, Plaintiffs’ own expert, Dr. Glenn Flores, testified that a shortage of PCPs exists generally in Texas and not just in regard to class members.128 Plaintiffs remain unsatisfied, however, replying that the CAO requires that Defendants address shortages of each type of physician.129 Plaintiffs’ expert, Dr. Flores, mentions especially a delay in referrals for pediatric dermatology, pediatric mental healthcare, developmental/behavioral pediatrics, orthopedists, and dentists.130 Plaintiffs’ Exhibit 6 includes documentation of a call from a referral coordinator of a non-profit agency regarding her difficulty in finding specialists in urology, cardiology, neurology, psychiatry, otolaryngology, pulmonology, allergists, and infectious diseases.131 Plaintiffs’ expert,
126 Hr’g Tr. 69:15-17, Dec. 19, 2013, Dkt. 1129. 127 Dkt. 1071-5 ¶ 24. 128 Dkt. 1034-6 at 5. 129 Dkt. 1097 at 17; Dkt. 637-9 at 6-7. 130 Dkt. 1034-6 at 9, 10, 12. 131 Dkt. 1033 at 21, Pl’s. Ex. 6. But Defendants’ Exhibit 64 documents that when the MCO spoke with the coordinator, she “confirmed . . . that the referenced shortage of pediatric subspecialists was ‘not due to a lack of Superior contracted pediatric subspecialists in the Tyler area,’ but was instead ‘a community issue’ and that ‘[n]ormal practice patterns for Members/Patients in the Tyler area needing pediatric specialty services is to travel to Dallas for those services.” Dkt. 1084-2 at 4. Defendants also noted that the particular patient at issue was granted an out-ofnetwork authorization to see a pediatric urologist. Id.
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Dr. Steinhauer, testified that there is an inadequate supply of oral surgeons in some regions.132 Also, for the first time in their reply, Plaintiffs contend that Defendants math artificially inflates the percentages of available providers by relying on percentages of enrolled providers that met the definition of available instead of the percentage of “active” providers that met the definition of “available.”133
Neither the Decree, CAO, nor federal Medicaid law establish a number or ratio of providers to recipients that would constitute an “adequate” supply and fulfill the requirements of the CAO and objectives of the Decree. The terms of a consent decree “are arrived at through mutual agreement of the parties” after careful negotiation, and “it is the parties’ agreement that serves as the source of the court’s authority to enter judgment at all.”134 “Courts should not impose their own terms within a consent decree and should read consent decree terms by their plain meaning.”135 A consent decree embodies agreements reached “after careful negotiation has produced agreement on [its] precise terms.”136 “[W]hen a contract is expressed in unambiguous language, its terms will be given their plain meaning and enforced as written.”137
Accordingly, the court first looks to other provisions of the Decree for guidance in determining what constitutes an “adequate” supply of providers.138 Paragraph 88 explains that
132 Dkt. 1034-5. Defendants criticize Dr. Steinhauer’s affidavit as being based on outdated numbers regarding the transition to dental managed-care. During his deposition, Defendants provided Dr. Steinhauer with the most current data on dental managed-care, and Dr. Steinhauer admitted that the numbers “good.” Dkt. 1052 at 58, 95. 133 Dkt. 1097 at 12. 134 Local No. 93, Int’l Ass’n of Firefighters, AFL-CIO C.L.C. v. City of Cleveland, 478 U.S. 501, 519, 522 (1986). 135 United States v. Alcoa, Inc., 533 F.3d 278, 286 (5th Cir. 2008). 136 Local No. 93, 478 U.S. at 522 (quoting United States v. Armour & Co., 402 U.S. 673, 681-82 (1971)). 137 United States v. Chromalloy Am. Corp., 158 F.3d 345, 350 (5th Cir. 1998) 138 Frew v. Gilbert, 109 F. Supp. 2d 579, 594-98 (E.D. Tex. 2000) (holding that parties’ purpose, as delineated in the Decree, informed the court’s interpretation of a Decree provision related to
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“[a]n adequate corps of capable providers is necessary to provide recipients with adequate access to needed services.”139 Paragraph 197, relating to managed care, states that “TDH will assure by various means that managed care organizations have an adequate supply of appropriate providers who can serve EPSDT recipients (including specialists) located conveniently so that recipients do not face unreasonable 1) delay scheduling appointments, 2) delay waiting for appointments once at the office or 3) travel times to get to the office as authorized by SB10 and SB 600.”140 Bullet point 1 of the CAO adds that “[w]ithin managed-care, Defendants will ensure that the supply of primary care providers (PCPs) enrolled in each Managed-care Organization (“MCO”) . . . is adequate to allow class members to choose among at least two PCPs appropriate to meet the class members’ needs.”141 Notably, the court’s order adopting the CAOs stated that “[f]ollowing the studies, Defendants will develop plans to remedy shortages of each type of provider in any geographic area, if any are found.”142 Other portions of the Decree, not necessarily related to the supply of providers, offer the court some persuasive evidence of the parties’ definition of these terms. Paragraph 246 of the Decree, relating to Defendants’ provision of toll-free numbers, states that an “‘inadequate supply of providers’ means that staff cannot satisfy a recipient’s request for a needed provider or providers.”143 “Inadequate” is defined in relation to the transportation program in paragraph 228 as meaning “problem(s) exist that Defendants can reasonably be
whether “‘informing’ has been done ‘effectively,’ or an outreach workload handled ‘effectively.’”) 139 Dkt. 135 ¶ 88. 140 Dkt. 135 ¶ 197. The court notes that because 91% of class members are now served by MCOs, this requirement may be the most relevant. 141 Dkt. 637-9 at 2. 142 Dkt. 663 at 33 (emphasis added); see also Dkt. 637-9 at 6 (“If the major assessment identifies a shortage in any geographic area of any provider type(s) that provide services to class members, Defendants will develop a plan to address the shortage.”). 143 Dkt. 135 ¶ 246.
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expected to correct.”144 Taken as a whole, the CAO and Decree appear to require Defendants to retain enough providers to assure recipients adequate access to needed care, which means that recipients do not face unreasonable 1) delay scheduling appointments, 2) delay waiting for appointments once at the office or 3) travel times to get to the office, and allows class members a choice of two PCPs in each geographic area. This comports with the usual and unambiguous meaning of the term “shortage,” which is defined as “a state in which there is not enough of something that is needed.”145
In 2007, the court found that the class had increased from 1.5 million in 1993 to 2.8 million in 2006.146 The court also stated that “[d]espite this increase in the size of the class, Defendants have not succeeded in increasing—or even maintaining—the number of health care providers who take care of class members.”147 But, at that time, the court also noted that “[e]ven when there is an adequate supply of health care providers for the total population, not enough health care providers take care of class members.”148 Defendants took action to increase the provider supply in areas of the state where providers exist for the total population but are not enrolled as Medicaid providers.
Defendants put forth the Declaration of Michelle Long, which explains that, relying on bullet points 1 and 2 of the CAO, Defendants “considered Medicaid provider shortage areas requiring corrective action to be those in which a provider is practicing, but where children enrolled in Medicaid do not have access to that type of provider within a specified distance from their home.”149 Defendants then targeted their recruitment efforts on those providers.150
144 Dkt. 135 ¶ 228. 145 Shortage Definition, M-W.COM, http://www.merriam-webster.com/dictionary/shortage. 146 Dkt. 663 at 17. 147 Dkt. 663 at 17. 148 Dkt. 663 at 18. 149 Dkt. 1052-3 ¶ 12.
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Defendants contend that “the only rational approach to stemming perceived provider shortages is to focus upon recruiting providers who are already located in potential shortage areas but not enrolled in Medicaid,”151 because the state cannot force doctors to practice in other areas of the state, nor can it force class members to relocate where there are more providers. So, Defendants, “using the same taxonomies used in the major assessment and the list of common medical specialties (as defined by HHSC), HHSC: [c]reated maps and tables comparing providers with an NPI152 to providers enrolled in Medicaid; [i]dentified areas of the state for which a provider had an NPI but no enrolled Medicaid provider existed; and [d]irected their contractor, TMHP to conduct a targeted recruitment to the providers whose participation in Medicaid would increase access points for children enrolled in Medicaid, meaning a licensed provider existed in the area, but that provider was not enrolled in Medicaid.”153 As a result of these efforts, Defendants “learned that in most cases access in these areas was comparable to what was available to the general population,”154 and that “children on Medicaid have access to specialists that satisfies the distance standards of children with private insurance”155 in accordance with federal law.156 Defendants assert that “there is a general shortage of [] specialty provider types that is not specific to the Medicaid population.”157 For instance, Defendants draw attention to the fact that there are only forty-one developmental pediatricians in the entire state, so any shortage that exists does not exclusively affect Medicaid patients.158 Similarly, there are only twenty-two
150 Dkt. 1052 at 29. 151 Dkt. 1052 at 64. 152 An NPI is a National Provider Identifier that health care providers must have to bill insurance companies. Dkt. 1052-3 ¶ 19. 153 Dkt. 1052-3 ¶ 19. 154 Dkt. 1052 at 67. 155 Dkt. 1052 at 30, 77. 156 Hr’g Tr.157:1-3, Dec. 19, 2013, Dkt. 1129. 157 Dkt. 1052 at 97. 158 Dkt. 1052 at 88.
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pediatric dermatologists in the state.159 However, Defendants argue that the transition to managed-care has actually increased availability of specialists because MCOs can authorize outof-network and out-of-area providers.160
Defendants point to their Exhibits 2, 6, 45, 46, and 83 as well as Dkts. 800-1, 838-4 and 950 in support of their contention. Defendants also ask the court to consider their “Provider Access Reports” (PARs) in determining whether further action is required under these provisions.161 Bullet Point 12 explains
(12) Defendants receive monthly reports about the status of the supply of providers from their PCCM administrator and each of the MCOs. Defendants also compile semi annual [sic] reports of the adequacy of provider supplies in PCCM and each MCO by service delivery area. Defendants will provide these reports and information about corrective action plans, if any, in their January and July quarterly reports to the Court.
The PARs address MCOs compliance with the distance standards enumerated in the CAO. According to Defendants, the PARs “establish that 97-99% of class members in managedcare have access to providers within the parties’ agreed distance standards.”162 Further, Defendants believe the PARs
consistently show that nearly 100% of children under age 21 with Medicaid served in managed care have access to a choice of primary care providers (PCPs) within 30 miles of his/her home. Access to common medical specialists within 75 miles of home is nearly 100% in urban areas, and ranges from a low of 70% access (in one health plan in one region served by four health plans) up to 100% access to particular types of medical specialists in more rural areas.163
159 Dkt. 1052 at 89. 160 Dkt. 1052 at 76. 161 Dkt. 912 at 2. 162 Dkt. 912 at 2. 163 Dkt. 1052 at 31-32.
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Plaintiffs condemn the “provider access reports” as only showing PCPs with an “open panel”164 and not disclosing “how recently a PCP has accepted a new patient, or for how long they will accept new patients, or how long a class member may have to wait for an appointment.”165 The same could be said of the Assessments. The fact that a provider billed for one service for one new patient in the preceding six months does not necessarily mean that provider is actually available to take new patients. It also sheds no light on how long the provider will be accepting new patients or how long a class member has to wait for an appointment.
Plaintiffs also disapprove of the “provider access reports” because the reports are “based on self-reported, unverified, information from the Defendants’ managed-care contractors, who are contractually obligated to meet the provider-patient distance requirements.”166 Plaintiffs have not put forth any evidence, however, to support their allegation that these reports are unreliable.
Defendants took initiative to address existing problems that Defendants can reasonably be expected to correct. Defendants cannot materialize more providers, nor can the state require providers to practice in a certain area. The state’s actions in recruiting and enrolling providers where providers existed but were not serving the class helps achieve the objective of retaining enough providers to assure recipients adequate access to needed care. Plaintiffs have not put forth any evidence of a class member who was denied access to needed care or who faced an unreasonable delay in scheduling appointments, or in waiting at an office, or with respect to travel times. Defendants’ actions take steps to enhance recipients’ access to health care and
164 At the hearing on this motion, Defendants characterized having an “open panel” as meaning that a PCP is accepting new Medicaid patients. Hr’g Tr. 134:14-19, Dec. 19, 2013, Dkt. 1129. Plaintiffs criticize this designation because it does not distinguish between providers that may treat patients in an emergency room but are not actually accepting new patients in private practice, and MCOs provide PCPs financial incentives to maintain an “open panel.” Hr’g Tr. 52:6-24, Dec. 19, 2013, Dkt. 1129. 165 Dkt. 1033 at 15-16. 166 Dkt. 1033 at 16, 28 n.22.
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improve the use of health care services by Texas EPSDT recipients. The court finds that the terms of bullet points 8-12 of the CAO have been satisfied.
Finally, bullet point 13 states (13) After Defendants complete two major assessments, and two interim assessments,
counsel will confer to determine what, if any, further action is required. Counsel will begin to confer no later than 30 days following completion of the second interim study (“completion”). If the parties agree, they will so report to the Court within 120 days of completion. If the parties cannot agree within 90 days, the dispute will be resolved by the Court upon motion to be filed by either party. If the parties cannot agree, either party may file its motion within 30 days of completion of discussions among counsel. It is undisputed that the parties have conferred about what, if any, further action is required under this CAO and the Decree. However, the parties cannot agree, and they have now filed the instant motions so that the dispute can be resolved by the court. Defendants also seek an order from the court that they have satisfied the corresponding provisions of the Consent Decree: paragraphs 75-94, 97-103, and 197. Compliance with paragraphs 93 and 197 was discussed in conjunction with the CAO supra. Paragraphs 75-87, 89, 92, and 97 provide background information to the Decree, and while some of that information is outdated or obsolete, no modification is warranted as these paragraphs do not require action on the part of Defendants. To the extent that Defendants are required to report any information in the QMRs related to these paragraphs, the parties are ordered to meet and confer regarding an agreement to remove the outdated or obsolete provisions from the QMR. Any agreements should be filed with the court for the record. Defendants contend, and Plaintiffs do not dispute,167 that Defendants have complied with paragraph 90 of the Decree, requiring them to implement use of a simplified form for EPSDT medical check ups in 1995. The court finds this paragraph of the Decree fully satisfied.
167 Hr’g Tr. 24:10-14, Dec. 19, 2013, Dkt. 1129.
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Paragraph 91 reads: “Defendants have created a new billing form for immunizations. It allows the tracking of recipients’ progress toward completion of the full series of immunizations. The tracking system will be in place and running by January, 1996. This system will permit providers to promptly request up to date information about patients’ immunization status.” While the parties touched briefly on this paragraph at the hearing on this matter, it was not briefed in the motions. This paragraph does not necessarily relate to the provider supply, other than being listed as a “see also” provision on page 2 of the CAO. The court declines to modify this paragraph at this time. Should Defendants wish to move for relief under Rule 60(b)(5) on this paragraph separately to allow the parties to fully brief the issue, they may do so.
Paragraph 94 of the Decree states: AGENCY RESPONSIVENESS The reorganization of TDH is partly intended to improve responsiveness to providers’ needs. Senior management staff in each of the 8 TDH regions will be responsible for provider relations. The number of staff assigned to this task may vary based upon the number of EPSDT recipients in each region. One responsibility of TDH provider relations staff will be to work with providers who serve EPSDT recipients to reduce or eliminate problems that discourage providers from participating in the program. To the extent that paragraph 94 requires Defendants to take action, “Defendants have routinely provided Regional Provider Relations Reports” to the Court detailing the efforts by DSHS staff in reaching out to providers.”168 The court finds that Defendants have complied with this paragraph. However, the court finds no reason to warrant modification of this provision at this time. To the extent that Defendants are required to report any information in the QMRs related to this paragraph, the parties are ordered to meet and confer regarding an agreement to reduce any inefficient reporting in the QMRs. Any agreements should be filed with the court for the record. Paragraphs 98 and 99 required Defendants to “implement a method to index the reimbursement rate for medical check ups in non-managed-care areas” to annually adjust 168 Dkt. 1052 at 38.
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reimbursement rates to providers for check ups. Defendants complied with the requirements of these paragraphs in 1997. Defendants have explained that
[t]he current Medicaid reimbursement rate methodology for non-managed-care areas is explained in Ex. 37, Declaration of Dan Huggins. It involves the use of resource-based fees and, when those are not available, access-based fees. TMHP maintains a Pricing and Fiscal Impact Unit, which conducts ongoing reviews of CPT codes and pricing and makes recommendations to HHSC for rate adjustments.169 Plaintiffs characterized paragraph 99 as a “relic” at the hearing and did not take a position on its fulfillment.170 The court finds that Defendants have satisfied these requirements of these paragraphs. Defendants have satisfied paragraphs 100-102 of the Decree, because “all medical and dental schools in Texas are enrolled as EPSDT (THSteps) providers.”171 Paragraph 103 requires an increase in new provider relations staff to twenty-eight. It is undisputed that this was completed in 2007. Further, “today there are approximately 72 provider relations staff members employed between TMHP and DSHS.”172 MCOs also employ their own provider relations staff.173 Plaintiffs agree that this paragraph is “mostly a relic.”174 Plaintiffs also put forth arguments that the transition to dental managed-care violated Decree paragraph 143 because it resulted in a loss of dental providers and reduced the number of class members receiving dental check ups. While the provider supply CAO does reference paragraph 143 of the Decree, it does not appear to require any additional actions by Defendants with regard to dental services. Defendants have not asked to be released from any obligation relating to paragraph 143. Therefore, the court does not address Decree paragraph 143 here. 169 Dkt. 1052 at 38. 170 Hr’g Tr. 42:7-11, Dec. 19, 2013, Dkt. 1129. 171 Dkt. 1052 at 39. 172 Dkt. 1052 at 39-40. 173 Dkt. 1052 at 40. 174 Hr’g Tr. 43:4, Dec. 19, 2013, Dkt. 1129.
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b. Have the objectives of the Decree been satisfied making its prospective enforcement inequitable or is further action required?
Defendants contend that they have fully complied with the provider-supply CAO and the Decree and that even if they had not, prospective enforcement of the Decree would be inequitable. First, Defendants assert that a significant change in fact, the state’s transition to the capitated managed-care model for 91% of children on Medicaid in Texas, justifies modification of the Decree. According to Defendants, this makes prospective enforcement of the Decree provisions at issue, agreed to at a time where Medicaid was largely under a fee-for-service model, detrimental to the public interest because of the enormous resources it consumes to administer redundant or obsolete measures. Defendants further argue that the objectives of the Decree have been attained and a durable remedy is in place, so that continued enforcement of the Decree is improper.
Courts take a “flexible approach” when considering a motion to modify a decree on the basis that its prospective application would be inequitable.175 Under this approach, a party seeking modification of a decree bears the burden of establishing that a significant change in fact or law warrants revision of the decree; and the court must consider whether the proposed modification is suitably tailored to the changed circumstances.176 “[A] critical question in this Rule 60(b)(5) inquiry is whether the objective of the [Consent Decree] has been achieved.”177 “If a durable remedy has been implemented, continued enforcement of the order is not only unnecessary, but improper.”178 But a “change in factual circumstances, without more, is [] insufficient to warrant modification of a consent decree in the Fifth Circuit; the moving party must additionally show how the change in factual circumstances warrants modification of the 175 Horne v. Flores, 557 U.S. 433, 450 (2009). 176 Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 383, 391 (1992). 177 Horne, 557 U.S. at 450. 178 Id. (citing Milliken v. Bradley, 433 U.S. 267, 282 (1977)).
40

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consent decree by showing that those changes affect compliance with, or the workability or enforcement of, the final judgment.”179
Generally, the Decree “speaks to the broader goals of enhancing recipients’ access to health care and improving the use of health care services by Texas EPSDT recipients.”180 Paragraph 6 of the Decree explains that the Decree was intended “[t]o address the parties’ concerns, to enhance recipients’ access to health care, and to foster the improved use of health care services by Texas EPSDT recipients.”181 More specifically related to these motions, paragraph 88 states:
[a]n adequate corps of capable providers is necessary to provide recipients with adequate access to needed services. Assuring an adequate provider pool requires recruiting new providers, retaining current providers, encouraging current providers to increase the number of recipients that they serve and facilitating training so that providers can adequately meet recipients’ needs.182 Defendants argue that they “have done everything that the law requires them to do, namely act to correct those provider shortages that appear unique to the Medicaid program, i.e. where there are insufficient numbers of Medicaid providers to serve children in a geographic location where non Medicaid providers are located.”183 Indeed, “[t]he ‘Equal Access’ provision of the Medicaid Act requires the state Medicaid program to ‘enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area.”184 Defendants contend that the transition to managed care and the Texas Department of Insurance (TDI) standards “render timeliness and distance standards listed in the CAO and Decree moot, as the CAO and Decree 179 Frew v. Hawkins, 401 F. Supp. 2d 619, 630 (E.D. Tex. 2005) (quoting Cooper v. Noble, 33 F.3d 540, 544 (5th Cir. 1994)) (internal quotation marks omitted). 180 Frazar v. Ladd, 457 F.3d 432, 439 (5th Cir. 2006). 181 Dkt. 135 ¶ 6. 182 Dkt. 135 ¶ 88. 183 Dkt. 1052 at 77. 184 Dkt. 1052 at 8, citing 42 U.S.C. § 1396a(a)(30).
41

Case 3:93-cv-00065-RAS Document 1280 Filed 01/20/15 Page 42 of 46 PageID #: 86995
standards are already incorporated into the contractual requirements being imposed upon Medicaid MCOs, and . . . detailed timeliness and distance standards are also required of all HMOs by TDI.”185
This court has previously held that the switch to the managed-care delivery model warranted modification of the “statewideness” portions of the CAO and the Decree.186 The “statewideness” portions of the Decree, paragraphs 271-281, and the CAO: Check Up Reports and Plans for Lagging Counties (Dkt. 637-3) required Defendants to create costly reports and action plans to address “lagging” utilization rates by county. In the managed-care model, services are delivered in particular “service areas” instead of per county. The costly statewideness reports had become redundant and unsuitable given Defendants’ actions taken to ensure that each managed-care service area’s utilizations rates are monitored. Indeed, the Decree contains provisions to address managed care and contemplates its implementation statewide. In relation to the provider supply, the managed-care model also caused a significant change in factual conditions that affects enforcement of the Decree.
Plaintiffs again raise the argument that Defendants cannot rely on this change in circumstances to justify modification of the Decree because the “increasing role of managed-care was certainly not just foreseeable but foreseen when the CAO was adopted.” Plaintiffs contend that Defendants cannot rely on change that they initiated to support their argument that prospective enforcement of the Decree has become inequitable. But Plaintiffs cannot feign incredulity at the increased utilization of managed care either. The Decree specifically states that in its 1995 session, the legislature passed bills that require “the Texas Medicaid program to increase the number of recipients who are served by managed-care organizations. Most Texas
185 Dkt. 1052 at 50-51, Hr’g Tr. 123:7-15, Dec. 19, 2013, Dkt. 1129. 186 Dkt. 1020.
42

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Medicaid recipients will receive services from managed-care organizations within a few years.”187 The Decree goes on to explain that “[r]egardless of their disagreements about the merits of managed-care, the parties agree that managed-care must be implemented in a manner that benefits EPSDT recipients and does not harm them.”188 Several other provisions of the Decree, and in fact, an entire CAO (Dkt. 637-6) are directed towards improvement of recipients’ access through managed care.
While “modification should not be granted when a party bases its request on events that were anticipated when it entered a decree,”189 a change in factual circumstances does not have to be unforeseen to warrant modification of a Decree.190 “If it is clear that a party anticipated changing conditions that would make performance of the decree more onerous but nevertheless agreed to the decree, that party would have to satisfy a heavy burden to convince a court that it agreed to the decree in good faith, made a reasonable effort to comply with the decree, and should be relieved of the undertaking under Rule 60(b).”191 There is no evidence that Defendants submitted to the Decree knowing that it would ultimately become fruitless and they could then shirk their agreed responsibilities. Although Defendants were piloting a managed-care delivery model in some counties at the time of the Decree, the fact that the state legislature saw fit to implement managed care statewide over the now nineteen years that this Decree has been in place hardly suggests a deceptive purpose. Certainly, Defendants have sought relief from provisions of the Decree for a number of years. But there is no evidence to suggest that Defendants entered the Decree intending to abandon their agreement by transitioning to managed care, particularly because the Decree and CAOs specifically address managed care. At this point, 187 Dkt. 135 ¶ 188. 188 Dkt. 135 ¶ 189. 189 United States v. City of New Orleans, 731 F.3d 434, 439 (5th Cir. 2013). 190 Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 385 (1992). 191 Id. (emphasis added).
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Defendants have done everything required of them under the provider-supply CAO and related Decree provisions. If the purpose of the Decree is to “enhance recipients’ access to health care, and to foster the improved use of health care services by Texas EPSDT recipients,”192 it appears that Defendants have done so through targeted recruitment efforts where providers exist but were not treating class members, measures to improve the accuracy of provider directories, and increases in rates and procedures to continually assess rates.
Defendants argue that continued enforcement of the provider supply CAO and related Decree provisions has become a waste of valuable state resources.193 Through its contracts with MCOs, the state, through both HHSC and the Department of Insurance, regularly monitors and enforces the timeliness and distance standards upon which the CAO relies and requires MCOs to maintain updated and accurate information in their provider directories. Provider rates are assessed at a minimum of every other year and are monitored by the federal oversight agency: Centers for Medicare & Medicaid Services (CMS). These safeguards give the court confidence that the problems addressed by the provider supply CAO and related Decree provisions will not resume once judicial oversight ends.
The proposed modification pursued by Defendants is suitably tailored to the changed conditions because it seeks release only from certain parts of the Decree that have been either satisfied or become obsolete, and because the remaining Decree provisions and CAOs will remain in place “thereby preserving Defendants’ responsibilities for ensuring adequate provision of EPSDT services to children under age 21 with Medicaid despite the switch to a managed-care model.”194
192 Dkt. 135 ¶ 6. 193 Dkt. 1052 at 51. 194 Dkt. 1052 at 55.
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IV. CONCLUSION Plaintiffs’ Renewed Motion to Enforce the Provider Supply Corrective Action Order and
Related Decree Provisions (Opposed) (Dkt. 1033) is DENIED, and Defendants’ Rule 60(b)(5) Motion to Vacate the Corrective Action Order: Adequate Supply of Health Care Providers and Related Decree Provisions; Defendants’ Response in Opposition to Plaintiffs’ Renewed Motion to Enforce the Provider Supply Corrective Action Order and Related Decree Provisions (Sealed) (Dkt. 1052) is GRANTED IN PART. Defendants have satisfied the requirements of each bullet point of the provider supply CAO (Dkt. 637-9). Defendants have satisfied the requirements of paragraphs 91, 93, 94,195 98-99, 100-102, 103, and 197 of the Decree. The court declines to modify paragraphs 90 or143 at this time. Defendants have shown that they have satisfied the objectives of the Decree paragraph 88 by taking realistic and viable measures to enhance recipients’ access to care through ensuring an adequate supply of health care providers within the CAO’s enumerated timeliness and distance standards through targeted recruitment efforts, increases and monitoring of reimbursement rates, and using their best efforts to maintain updated lists of providers to both recipients and other providers. A durable remedy is in place through Defendants’ laws, regulations, policies, and contractual commitments from MCOs to assure future compliance. Defendants are no longer obligated to report on their compliance with paragraphs 91, 93, 98-99, 100-102, 103, and 197of the Decree or CAO 637-9. No modification is warranted with regard to paragraphs 75-87, 89, 82 and 97 of the Decree because those paragraphs mainly contain background information and do not require any action by Defendants. The remaining provisions of the Decree and the CAOs continue in force and are unmodified by
195 The parties shall negotiate regarding any requirement that any information regarding this paragraph be included in the QMRs and submit their agreement to the court.
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Case 3:93-cv-00065-RAS Document 1280 Filed 01/20/15 Page 46 of 46 PageID #: 86999 this order. Defendants must continue to comply with the remaining terms regardless of whether they believe they are in compliance with underlying federal law.196 IT IS SO ORDERED. . SIGNED this the 20th day of January, 2015.
_______________________________ RICHARD A. SCHELL UNITED STATES DISTRICT JUDGE
196 See Horne, 557 U.S. at 454 (“To determine the merits of this claim, the Court of Appeals needed to ascertain whether ongoing enforcement of the original order was supported by an ongoing violation of federal law . . .”); Frew v. Hawkins, 401 F. Supp. 2d 619, 635 (E.D. Tex. 2005) (“While compliance with federal law may be one factor in assessing changed factual circumstances, it is neither the focus of the Court’s inquiry nor dispositive of the merits of Defendants’ Rule 60(b) Motion.”).
46

 
 Case: 14-40048 Document: 00513125185 Page: 1 Date Filed: 07/22/2015 Case 3:93-cv-00065-RAS Document 1354 Filed 07/22/15 Page 1 of 20 PageID #: 95893

LYLE W. CAYCE CLERK

United States Court of Appeals
FIFTH CIRCUIT OFFICE OF THE CLERK
TEL. 504-310-7700 600 S. MAESTRI PLACE NEW ORLEANS, LA 70130
July 22, 2015

Mr. David Maland Eastern District of Texas, Beaumont United States District Court 300 Willow Street Room 104 Beaumont, TX 77701-0000
No. 14-40048 Carla Frew, et al v. Thomas Suehs, et al USDC No. 3:93-CV-65

Dear Mr. Maland,
Enclosed is a copy of the judgment issued as the mandate and a copy of the court's opinion.

Sincerely,
LYLE W. CAYCE, Clerk
By: _________________________ Christina A. Gardner, Deputy Clerk 504-310-7684
cc: Mr. J. Campbell Barker Mr. James Byron Eccles Mr. Timothy Borne Garrigan Mr. Scott A. Keller Ms. Jane K. Swanson

Case: 14-40048 Document: 00513125177 Page: 1 Date Filed: 07/22/2015 Case 3:93-cv-00065-RAS Document 1354 Filed 07/22/15 Page 2 of 20 PageID #: 95894

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
_______________________
No. 14-40048 _______________________
D.C. Docket No. 3:93-CV-65

United States Court of Appeals Fifth Circuit
FILED
March 5, 2015
Lyle W. Cayce Clerk

CARLA FREW; CHARLOTTE GARVIN, as next friend of her minor children Johnny Martinez, Brooklyn Garvin and BreAnna Garvin; CLASS MEMBERS; NICOLE CARROLL, Class Representative,

Plaintiffs - Appellants v.

KYLE JANEK, Commissioner of the Texas Health and Human Services Commission in his official capacity; KAY GHAHREMANI, State Medicaid Director of the Texas Health and Human Services Commission in her official capacity,

Defendants - Appellees

Appeal from the United States District Court for the Eastern District of Texas, Paris

Before JOLLY, WIENER, and CLEMENT, Circuit Judges.

J U D G M E N T

This cause was considered on the record on appeal and was argued by counsel.

It is ordered and adjudged that the judgment of the District Court is affirmed.

Case: 14-40048 Document: 00513125177 Page: 2 Date Filed: 07/22/2015 Case 3:93-cv-00065-RAS Document 1354 Filed 07/22/15 Page 3 of 20 PageID #: 95895
IT IS FURTHER ORDERED that plaintiffs-appellants pay to defendants-appellees the costs on appeal to be taxed by the Clerk of this Court.
Certified as a true copy and issued as the mandate on Jul 22, 2015 Attest: Clerk, U.S. Court of Appeals, Fifth Circuit

Case: 14-40048 Document: 00513125178 Page: 1 Date Filed: 07/22/2015 Case 3:93-cv-00065-RAS Document 1354 Filed 07/22/15 Page 4 of 20 PageID #: 95896

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals Fifth Circuit

FILED

No. 14-40048

March 5, 2015 Lyle W. Cayce

Clerk

CARLA FREW; CHARLOTTE GARVIN, as next friend of her minor children Johnny Martinez, Brooklyn Garvin and BreAnna Garvin; CLASS MEMBERS; NICOLE CARROLL, Class Representative,

Plaintiffs - Appellants

v.

KYLE JANEK, Commissioner of the Texas Health and Human Services Commission in his official capacity; KAY GHAHREMANI, State Medicaid Director of the Texas Health and Human Services Commission in her official capacity,

Defendants - Appellees

Appeal from the United States District Court for the Eastern District of Texas
Before JOLLY, WIENER, and CLEMENT, Circuit Judges. WIENER, Circuit Judge:
This appeal arises from the district court’s termination of several provisions of a consent decree and the dissolution of a related corrective action order pursuant to the first clause of Federal Rule of Civil Procedure 60(b)(5)— that the judgment has been “satisfied, released, or discharged.” Plaintiffs represent a class of Texas children eligible for Medicaid’s Early and Periodic Screening, Diagnosis, and Treatment program (“EPSDT” or “the Program”). They concluded a consent decree (the “Decree”) with various Texas state

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No. 14-40048 officials (“Defendants”) in 1996 to make improvements to Texas’s implementation of the Program. In 2007, the parties agreed on a corrective action order to resolve Plaintiffs’ concerns with one part of the Decree. Defendants, believing their obligations to be satisfied, have now moved to dissolve that order and the associated Decree provisions under Rule 60(b)(5). The district court granted their motion. We affirm.
I. Facts and Proceedings A. Past Proceedings
This action began in 1993 when Plaintiffs, representatives of a class of over 1.5 million Texas children eligible for EPSDT, sued Defendants under 42 U.S.C. § 1983 for violations of federal Medicaid law in the state’s implementation of the Program.1 As noted, the parties concluded a consent decree in 1996 in which Defendants promised to implement a number of changes, among which was a training program for participating health care providers.2 A few years later, after little progress had been made, the district court found Defendants in violation of the Decree (“Frew I”).3 We reversed, solely on Defendants’ challenge to the Decree’s validity under the Eleventh Amendment (“Frew II”).4 The Supreme Court then reversed Frew II (“Frew III”).
In Frew III, the Court noted that Defendants’ legitimate concerns over the Decree’s potential to “undermine the sovereign interests and accountability of state governments” were not properly addressed to the Eleventh Amendment but to the district court’s power, under Rule 60(b)(5), to grant
1 Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 434 (2004); Frew v. Gilbert, 109 F. Supp. 2d 579, 587 (E.D. Tex. 2000).
2 See Frew, 109 F. Supp. 2d at 588. 3 See id. at 678. 4 See Frazar v. Gilbert, 300 F.3d 530, 543 (5th Cir. 2002).
2

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No. 14-40048 relief “if ‘it is no longer equitable that the judgment should have prospective application.’”5 The Court reiterated the “flexible standard” for modification of institutional-reform consent decrees6 found in Rufo v. Inmates of Suffolk County Jail7 and urged district courts to return the “responsibility for discharging the State’s obligations” promptly to state officials once “the objects of the decree have been attained.”8
On remand, we returned the case to the district court (“Frew IV”).9 Defendants moved to dissolve the Decree under Rule 60(b)(5)’s third clause, claiming that its continued enforcement would be inequitable.10 The district court, applying Rufo and Frew III, denied their motion, and we affirmed (“Frew V”).11
Back in the district court, the parties agreed on eleven corrective action orders, each aimed at bringing Defendants into compliance with a specific portion of the Decree. CAO 637-8, the order at issue in this appeal, implemented ¶¶ 124–30 of the Decree, which concerned deficiencies in Medicaid-participating pharmacies’ understanding of EPSDT. All eleven orders were entered into the record in 2007.12 B. Consent Decree ¶¶ 124–30 and CAO 637-8
1. Consent Decree ¶¶ 124–30 The 78-page Decree is organized into 308 paragraphs, of which only 7 are involved in this appeal. Paragraphs 124–30 form one subsection of a larger
5 Frew, 540 U.S. at 441 (quoting FED. R. CIV. P. 60(b)(5)). 6 Id. 7 502 U.S. 367 (1992). 8 Frew, 540 U.S. at 442. 9 See Frazar v. Hawkins, 376 F.3d 444, 447 (5th Cir. 2004). 10 See Frew v. Hawkins, 401 F. Supp. 2d 619, 631 (E.D. Tex. 2005). 11 See Frazar v. Ladd, 457 F.3d 432, 434 (5th Cir. 2006). 12 In 2009, the case was transferred by Judge William Wayne Justice, who had overseen the case from its inception, to Judge Richard Schell.
3

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No. 14-40048
section that calls for a variety of training initiatives for healthcare providers.
Of these 7 paragraphs, 2 mandate that Defendants perform specific actions:
129. By January 31, 1996, Defendants will implement an initiative to effectively inform pharmacists about EPSDT, and in particular about EPSDT’s coverage of items found in pharmacies. The effort will include presentations at meetings of the Texas Pharmaceutical Association and other appropriate organizations, if possible, articles in the TPA newsletter, if possible, and at least one mail out to all pharmacists who participate in the Medicaid program. The mail out will be designed to attract pharmacists’ attention, explain EPSDT coverage clearly and encourage pharmacists to provide the full gamut of covered pharmaceutical products to recipients as needed.
130. By July 31, 1996, Defendants will conduct a professional and valid evaluation of pharmacists’ knowledge of EPSDT coverage of items commonly found in pharmacies. They will report the results of the evaluation to Plaintiffs by September 1, 1996. If the parties agree that pharmacists’ understanding of the program is acceptable, Defendants will continue the initiative described above to inform pharmacists about EPSDT. If the parties do not agree, or if pharmacists’ understanding is unacceptable, Defendants will conduct an initiative to orally inform pharmacists about EPSDT’s coverage. Plaintiffs will not unreasonably disagree about whether pharmacists’ understanding is acceptable.13
Plaintiffs contend that three other paragraphs of the Decree are
relevant: ¶ 3, which declares that “[r]ecipients are also entitled to all needed
follow up health care services that are permitted by federal Medicaid law”; ¶ 6,
which describes the purpose of the Decree as “[t]o address the parties’ concerns,
13 Paragraph 124 describes the critical role that pharmacies play in the Program. Paragraph 125 introduces Plaintiffs’ complaints: Pharmacists do not understand EPSDT’s requirements, such as the fact that over-the-counter medications are covered if prescribed by a doctor. Paragraph 126 states that EPSDT also covers medically necessary infant formula, diapers, and other supplies and equipment “commonly sold in pharmacies.” Paragraph 127 continues Plaintiffs’ complaints: Pharmacies that do not understand EPSDT require Medicaid recipients to pay in cash; recipients often do not have cash or end up erroneously paying for covered items. Paragraph 128 states Defendants’ disagreement with these facts.
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No. 14-40048 to enhance recipients’ access to health care, and to foster the improved use of health care services by Texas EPSDT recipients”; and ¶ 190, which states that “EPSDT recipients served by managed care organizations are entitled to timely receipt of the full range of EPSDT services, including but not limited to medical and dental check ups.”14
2. CAO 637-8 This corrective action order begins by referencing ¶¶ 3, 129, and 130 of the Decree. It then describes Plaintiffs’ main complaint with pharmacists’ understanding of EPSDT’s prescription drug program: When EPSDT recipients seek to fill prescriptions for drugs that are not listed on the Program’s Preferred Drug List (“PDL”), pharmacists may fill them only if they have “prior authorization” from the prescribing physicians. If a prescribing physician does not provide the authorization or could not be reached, the pharmacist must dispense a 72-hour emergency supply so that the class member is not deprived of needed medication. Many pharmacists, however, did not know that the stopgap measure was available or treated it as optional and improperly withheld class members’ prescriptions. To remedy the pharmacists’ misunderstanding, CAO 637-8 established a detailed series of action items, elaborating on and expanding the requirements found in ¶¶ 124–30 of the Decree. CAO 637-8 is divided into 12 bullet points, of which 9 require specific actions by Defendants. Particularly contested in this appeal are their obligations in bullet points 6 and 10.15
14 In March 2012, the EPSDT prescription drug program was transferred from direct state control to the control of managed care organizations. All Texas EPSDT recipients are now served by managed care organizations.
15 CAO 637-8 also requires Defendants to (1) change the Program’s electronic prescription processing system so that it reminds pharmacists of the 72-hour emergency policy; (2) “work with the Texas Pharmacy Association to explain” the policy; (3) make available a PDL database service that doctors may use online or download to a handheld device for reference while providing care; (4) “begin encouraging all Medicaid-enrolled
5

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No. 14-40048 Bullet point 6 required Defendants to “provide intensive, targeted educational efforts to those pharmacies for which the data suggests a lack of knowledge of the 72-hour emergency prescriptions policy.”16 In addition to these “intensive, targeted” efforts for particular noncompliant pharmacies, Defendants were also to “continue . . . educational efforts with respect to all Medicaid pharmacies.” Bullet point 10 required Defendants to train staff at their ombudsman’s office “about the emergency prescription standards,” including “what steps to take to immediately address class members’ problems when pharmacies do not provide emergency medicines.” C. Current Proceedings In 2012, Plaintiffs moved to enforce the pharmacy aspects of the Decree and CAO 637-8, contending that further action was required because the training efforts had not been effective. They asked the court to “require that Defendants develop a plan thorough and vigorous enough to eradicate the severe systemic dysfunction” still remaining in the interaction between pharmacies and EPSDT. Defendants countered, claiming that they had “satisfied the terms of the CAO,” and moved to dissolve CAO 637-8 and Decree ¶¶ 124–30 “under the first ground set forth in Rule 60(b)(5).” They did not seek relief pursuant to the Rule’s second or third grounds.
pharmacies to also become Medicaid-enrolled providers of durable medical equipment”; (5) provide information about the 72-hour policy and Medicaid’s coverage of durable medical equipment every time a pharmacy signs a new, renewed, or amended contract to participate in Medicaid; and (6) encourage managed care organizations to train the nurses who staff their patient hotlines about the 72-hour and durable medical equipment policies.
16 The previous bullet point had required Defendants to identify these target pharmacies by performing an analysis of all pharmacies’ claims histories, which would reveal those that processed zero or a lower-than-expected number of 72-hour emergency prescriptions. Within two years of completing this analysis, Defendants were to repeat it. The final bullet point in CAO 637-8 required the parties to confer after the second analysis was complete “to determine what, if any, further action [was] required.”
6

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No. 14-40048 After a hearing, the district court agreed that Defendants had “substantially complied with the terms of CAO 637-8 and Decree [¶¶] 124–130” and granted their Rule 60(b)(5) motion. The court also found that Plaintiffs had conceded Defendants’ compliance with all action items besides those in bullet points 6 and 10.
II. Analysis A. Standard of Review
“Consent decrees are subject to Federal Rule of Civil Procedure 60(b).”17 We review a district court’s decision to grant or deny relief pursuant to Rule 60(b) for abuse of discretion.18 Under this standard, the district court’s ruling is “entitled to deference,” but we review de novo “any questions of law underlying the district court’s decision.”19
Plaintiffs urge that Frew I, in which Judge Justice construed various provisions of the Decree, is entitled to deference as “the law of the case.” They appear to find this rule in a line of Sixth Circuit cases that apply “deferential de novo” review to interpretations of consent decrees by the judges who initially approved them.20 We have never followed this rule. Moreover, the law of the case doctrine “generally operates to preclude a reexamination of issues decided on appeal.”21 The only decisions that form the law of this case are the Supreme Court’s opinion in Frew III and our previous panel opinions in Frew II, Frew IV, and Frew V. None of these interpret ¶¶ 124–30 of the Decree; CAO 637-8
17 League of United Latin Am. Citizens, Dist. 19 v. City of Boerne, 659 F.3d 421, 437 (5th Cir. 2011).
18 Id. 19 Frazar v. Ladd, 457 F.3d 432, 435 (5th Cir. 2006). 20 Shy v. Navistar Int’l Corp., 701 F.3d 523, 528 (6th Cir. 2012); see also, e.g., Brown v. Neeb, 644 F.2d 551, 558 n.12 (6th Cir. 1981). 21 Conway v. Chem. Leaman Tank Lines, Inc., 644 F.2d 1059, 1061 (5th Cir. Unit A May 1981) (emphasis added).
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No. 14-40048 did not even exist at the time of Frew V. We thus decline Plaintiffs’ invitation to apply our law of the case doctrine here. B. Rule 60(b)(5)
Consent decrees, like other judgments, may be modified or terminated pursuant to Rule 60(b)(5), which provides three independent, alternative grounds for relief: “[1] the judgment has been satisfied, released, or discharged; [2] it is based on an earlier judgment that has been reversed or vacated; or [3] applying it prospectively is no longer equitable.”22 As the party seeking relief, Defendants must bear the burden of showing that Rule 60(b)(5) applies.23
The vast majority of motions for modification and termination of consent decrees, especially those involving institutional reform, invoke Rule 60(b)(5)’s third clause.24 In contrast, the first clause of Rule 60(b)(5) is raised far less often—typically when there is a dispute over the amount of the judgment25—
22 FED. R. CIV. P. 60(b)(5); see also Horne v. Flores, 557 U.S. 433, 454 (2009) (“Satisfaction of an earlier judgment is one of the enumerated bases for Rule 60(b)(5) relief— but it is not the only basis for such relief. . . . Use of the disjunctive ‘or’ makes it clear that each of the provision’s three grounds for relief is independently sufficient . . . .”).
23 See League of United Latin Am. Citizens, Dist. 19 v. City of Boerne, 659 F.3d 421, 438 (5th Cir. 2011).
24 See 11 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE & PROCEDURE § 2863 (3d ed. 2012) (“The significant portion of Rule 60(b)(5) is the final ground, allowing relief if it is no longer equitable for the judgment to be applied prospectively.”); see also Horne, 557 U.S. at 447 (applying the third clause); Agostini v. Felton, 521 U.S. 203, 215 (1997) (same); Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 376 (1992) (noting that one party sought modification of a consent decree on the basis of alleged changes in law and fact, which pertain to Rule 60(b)(5)’s third clause).
25 See, e.g., Bryan v. Erie Cnty. Office of Children & Youth, 752 F.3d 316, 321 (3d Cir. 2014); BUC Int’l Corp. v. Int’l Yacht Council Ltd., 517 F.3d 1271, 1274 (11th Cir. 2008); Zamani v. Carnes, 491 F.3d 990, 995 (9th Cir. 2007); Newhouse v. McCormick & Co., 157 F.3d 582, 584 (8th Cir. 1998); Redfield v. Ins. Co. of N. Am., 940 F.2d 542, 544 (9th Cir. 1991); Torres-Troche v. Municipality of Yauco, 873 F.2d 499, 501 (1st Cir. 1989); Sunderland v. City of Phila., 575 F.2d 1089, 1090 (3d Cir. 1978).
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No. 14-40048 and is almost never applied to consent decrees.26 As such, we find very little applicable precedent interpreting this clause.
Defendants urge us to import the principles of Frew III to this case, as the Decree implicates the exact same federalism concerns as before. Plaintiffs’ response—that Frew III’s hortatory language about state accountability pertains only to Rule 60(b)(5)’s third clause—is technically accurate, but fails to account for Rule 60(b)’s expansive scope:
We have repeatedly noted that Rule 60(b) is to be given a liberal construction: “In analyzing the 60(b) aspect, [w]e recognize that Rule 60(b) is to be construed liberally to do substantial justice. The rule is broadly phrased and many of the itemized grounds are overlapping, freeing Courts to do justice in hard cases where the circumstances generally measure up to one or more of the itemized grounds.”27
In light of this statement and the lack of other precedent, we deem it reasonable to consider Defendants’ motion with reference to the Supreme Court’s unambiguous instructions in Frew III. C. Consent Decree Interpretation
Consent decrees are construed according to “general principles of contract interpretation.”28 “The primary concern of a court in construing a written contract is to ascertain the true intentions of the parties as expressed
26 See 11 WRIGHT, MILLER & KANE, supra note 24, § 2863 (“The first of the grounds set out in Rule 60(b)(5), that the judgment has been satisfied, released or discharged, has been relied on very rarely.”).
27 Johnson Waste Materials v. Marshall, 611 F.2d 593, 600 (5th Cir. 1980) (quoting Laguna Royalty Co. v. Marsh, 350 F.2d 817, 823 (5th Cir. 1965)).
28 Dean v. City of Shreveport, 438 F.3d 448, 460 (5th Cir. 2006). Furthermore, the court “look[s] to state law to provide the rules of contract interpretation.” Clardy Mfg. Co. v. Marine Midland Bus. Loans Inc., 88 F.3d 347, 352 (5th Cir. 1996). Plaintiffs cite to Texas contract law, and we have previously applied Texas law in cases involving consent decrees concluded between Texas parties. See, e.g., City of El Paso, Tex. v. El Paso Entm’t, Inc., 464 F. App’x 366, 372 (5th Cir. 2012) (per curiam) (unpublished).
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No. 14-40048 in the instrument.”29 Thus, courts examine the “unambiguous language in a contract” and enforce “‘the objective intent’ evidenced by the language used.”30 This reliance on the written terms must include consideration of all the terms: “[C]ourts should examine and consider the entire writing in an effort to harmonize and give effect to all the provisions of the contract so that none will be rendered meaningless.”31 “Indeed, courts must be particularly wary of isolating from its surroundings or considering apart from other provisions a single phrase, sentence, or section of a contract.”32
Plaintiffs contend that the district court erred in focusing narrowly on Defendants’ satisfaction of specific provisions of CAO 637-8 and not considering the Decree’s broader goals, as found in ¶¶ 3, 6, and 190. The purpose of the Decree, according to Plaintiffs, is results-oriented: It is not enough for Defendants to perform the required action items mechanically; the court must also find that these actions were effective in improving EPSDT recipients’ access to health care. Plaintiffs conclude that, because the district court failed to construe the Decree as a whole document, it misapplied the rules of contract interpretation and erred as a matter of law.
Plaintiffs’ recitation of the rules of contract interpretation is correct, but interpreting the Decree as an entire writing does not give Plaintiffs the victory they seek. In ¶¶ 3 and 190, the Decree states the uncontroversial position that Plaintiffs, including those served by managed care organizations, are entitled to EPSDT benefits as mandated by Medicaid. In ¶¶ 4 and 5, the Decree opines that Texas’s implementation of EPSDT could and should be improved. Then, in ¶ 6, the Decree introduces the “changes and procedures” agreed to by the
29 Texas v. Am. Tobacco Co., 463 F.3d 399, 407 (5th Cir. 2006) (emphasis added). 30 Clardy, 88 F.3d at 352. 31 Coker v. Coker, 650 S.W.3d 391, 393 (Tex. 1983). 32 Am. Tobacco Co., 463 F.3d at 408 (quoting State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 433 (Tex. 1995)) (internal quotation marks omitted).
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No. 14-40048 parties to effectuate this improvement, noting that these actions are in place “[t]o address the parties’ concerns, to enhance recipients’ access to health care, and to foster the improved use of health care services by Texas EPSDT recipients.” These introductory paragraphs do not guarantee specific outcomes; rather, they show that the Decree is aimed at supporting EPSDT recipients in obtaining the health care services they are entitled to, by addressing concerns, enhancing access, and fostering use of services.
Defendants therefore fulfill the purpose of the Decree by implementing the broad range of supportive initiatives memorialized in the Decree.33 The whole point of negotiating and agreeing on a plethora of specific, highly detailed action plans was to establish a clearly defined roadmap for attempting to achieve the Decree’s purpose. In other words, the parties already agreed that substantial compliance with this roadmap would achieve their common goal.
To read the Decree as implying a secondary assessment of the impact of each action item would introduce a new requirement to which the parties never agreed. The Decree makes no guarantees of success and sets no results-based milestones; neither do ¶¶ 124–30 establish any objective standard that pharmacists must achieve before Defendants’ educational efforts may be considered successful.
Plaintiffs have not pointed to any discrete endpoint for CAO 637-8 or these Decree paragraphs. Indeed, they may never be satisfied with Defendants’ educational efforts: In their 2012 motion to enforce the Decree and CAO 637-8, Plaintiffs appeared to have given up on pharmacist training entirely. Acknowledging that “[n]o amount of education will cure the pervasive
33 See id. at 407 (“The primary concern of a court in construing a written contract is to ascertain the true intentions of the parties as expressed in the instrument.” (emphasis added)).
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No. 14-40048 dysfunction in Defendants’ deeply flawed system,” Plaintiffs instead wanted Defendants to “propose a further action plan” to effectuate “systematic change” to the prescription drug program itself. Neither the rules of contract interpretation nor Frew III’s instruction to “promptly” return state programs to state control countenance this rewriting of the Decree.
Plaintiffs also point to the word “effectively” in ¶ 129: Defendants were required to “implement an initiative to effectively inform pharmacists about EPSDT.” Plaintiffs reason that if many EPSDT recipients are still not receiving their prescription drug benefits, Defendants’ educational initiative must not have been effective. Reading ¶ 129 as a whole, however, reveals that “effectively” functions to require that all “presentations,” “articles,” and “mail out” initiatives conducted by Defendants convey information effectively. Paragraph 129 even provides some guidelines for effective communication, instructing Defendants to design mailings “to attract pharmacists’ attention” and “explain EPSDT coverage clearly.” Defendants were obligated to communicate information in an effective manner, no more. To infer a wholesale, results-oriented reevaluation of Defendants’ efforts from this one word, taken out of context, would be wholly inconsistent with the rules of contract interpretation.34
Finally, Plaintiffs rely heavily on the Ninth Circuit’s opinion in Jeff D. v. Otter, which held that “[e]xplicit consideration of the goals of [the consent decree], and whether those goals have been adequately served, must be part of the determination to vacate.”35 But Jeff D. is inapposite for two reasons. First,
34 See id. at 408 (“Indeed, courts must be particularly wary of isolating from its surroundings or considering apart from other provisions a single phrase, sentence, or section of a contract.” (quoting State Farm, 907 S.W.2d at 433) (internal quotation marks omitted)).
35 643 F.3d 278, 289 (9th Cir. 2011).
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No. 14-40048
the Ninth Circuit’s reasoning rested on two school desegregation cases,36 which
present unique issues in consent decree jurisprudence,37 and on a case that
appears to have considered the flexible standard for modifying consent decrees,
a standard associated with the third clause of Rule 60(b)(5).38 Thus, Jeff D.’s
persuasiveness is limited. Second, the consent decree at issue in Jeff D.
“provided for continuing jurisdiction by the district court for five years ‘or until
[the district court was] satisfied by stipulation or otherwise that the claims as
alleged in the Complaint have been adequately addressed.’”39 The Jeff D.
parties bargained for a termination condition that included an independent
assessment by the district court of whether the plaintiffs’ complaints had been
resolved. Thus, when the district court vacated the consent decree after
assessing compliance with the specific action items only, it did not give the
plaintiffs the benefit of their bargain.40 Although the Ninth Circuit did not
emphasize this fact, we find Jeff D. to be distinguishable on this basis.
In conclusion, we reject Plaintiffs’ contention that the district court
incorrectly interpreted the Decree in deciding Defendants’ motion to terminate
CAO 637-8 and Decree ¶¶ 124–30. If the Decree had explicitly guaranteed
36 See id. at 288 (citing Freeman v. Pitts, 503 U.S. 467 (1992); Youngblood v. Dalzell, 925 F.2d 954 (6th Cir. 1991)).
37 In Frew V, Defendants contended that the proper legal standard for terminating consent decrees was that found in the Supreme Court’s school desegregation cases, but we expressly declined to rule on that question. See Frazar v. Ladd, 457 F.3d 432, 440 (5th Cir. 2006). No party relies on the desegregation cases in this appeal. Owing to school desegregation’s unique legal history, the consent decree modification standards articulated in Freeman and similar cases may be of limited applicability. We have cited Freeman almost exclusively in other school desegregation cases.
38 See Jeff D., 643 F.3d at 288 (citing United States v. City of Miami, 2 F.3d 1497 (11th Cir. 1993) (considering the “flexible standard” from Rufo)).
39 Id. at 281 (emphasis added). 40 No similar provision exists in the Decree or in CAO 637-8. The closest analogue is CAO 637-8’s instruction for “counsel . . . [to] confer to determine what, if any, further action is required” after Defendants complete the second study of pharmacists’ claims history. If the parties cannot agree, then the court may step in. There is nothing, however, instructing the court to resolve the dispute with reference to the Decree’s overall purpose.
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No. 14-40048 pharmacists’ compliance, provided an objective standard for assessing the effectiveness of Defendants’ actions, or set termination conditions referencing satisfaction of the Decree’s overall purpose, Plaintiffs might legitimately complain about the district court’s approach. As it is, the district court did not err in interpreting CAO 637-8 and ¶¶ 124–30 to mandate specific actions only, the performance of which would automatically satisfy the parties’ intent in concluding these agreements. D. Dissolution of Consent Decree ¶¶ 124–30 and CAO 637-8
Plaintiffs also challenge the district court’s conclusion that Defendants have substantially complied with CAO 637-8 and Decree ¶¶ 124–30. In determining that a party to a contract has fulfilled its contractual obligations, Texas law allows substantial compliance.41 “Substantial compliance excuses deviations from a contract’s provisions that do not severely impair the contractual provision’s purpose.”42
The district court found that Defendants had substantially complied with the requirements of bullet points 6 and 10 in CAO 637-8 and ¶¶ 124–30 of the Decree. It did not make any specific findings with respect to the other bullet points in the CAO, as it determined that “[a]t the court’s hearing on these motions, Plaintiffs acknowledged that Defendants substantially complied with all but two of the paragraphs of CAO 637-8.”
Plaintiffs dispute that they made this concession, but their brief acknowledges that, during the hearing on Defendants’ motion, their counsel agreed with the court that “some discrete efforts took place.” A review of the hearing transcript confirms the propriety of the district court’s ruling. Counsel
41 See Turrill v. Life Ins. Co. of N. Am., 753 F.2d 1322, 1326 (5th Cir. 1985). 42 Interstate Contracting Corp. v. City of Dall., Tex., 407 F.3d 708, 727 (5th Cir. 2005); see also id. (noting that substantial compliance is not the legal equivalent of strict compliance if the contract expressly calls for the latter).
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No. 14-40048 agreed that Defendants had (1) made a Medicaid PDL service available; (2) implemented an electronic system for filling EPSDT prescriptions; (3) worked with the Texas Pharmacy Association to educate its members; (4) conducted two studies of pharmacies’ claims histories;43 (5) encouraged pharmacies to provide durable medical equipment; (6) provided EPSDT materials to pharmacies when concluding new contracts; and (7) encouraged managed care organizations to train their personnel in EPSDT. Although counsel consistently disputed the effectiveness of Defendants’ efforts, the relevant issue for determining substantial compliance is completion, and Plaintiffs have conceded that Defendants completed all but two of the bullet points in CAO 637-8.
As for the two disputed bullet points, the district court’s determination that Defendants have substantially complied with their obligations is consistent with the record. With respect to bullet point 6, which required Defendants to educate pharmacies that filled below-expected numbers of 72hour emergency prescriptions in an “intensive, targeted” manner, Plaintiffs assert that Defendants’ efforts were not sufficiently “intensive.” But the district court found Defendants’ actions—mailing certified letters to 822 pharmacies, visiting or calling the ones that did not receive the letter, and contacting corporate chain offices—to be sufficient. During oral argument, Plaintiffs’ counsel also took issue with the content of the certified letter, contending that it “never told the pharmacists that they must provide the 72hour prescription.” According to counsel, the letter left out “the critical part” of the program—that this 72-hour emergency prescription was mandatory, not
43 Plaintiffs’ counsel agreed that “[t]hey have conducted two studies fairly close to what the corrective action order required,” noting that the studies were “not compliant with [CAO 637-8], but fairly close.” The district court did not abuse its discretion to hold that this statement demonstrated a concession of substantial compliance. See id.
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No. 14-40048 discretionary. Thus, “the whole system fell apart” because “the pharmacists think they have discretion, or they don’t have to, or it’s only permissive that they provide the 72-hour medication.” After reviewing the mailing, however, we see no basis for this complaint. The letter told pharmacies that they “should dispense the 72-hour emergency supply”; the enclosed “Texas Medicaid Pharmacists’ Guide to Dispensing 72-Hour Emergency Prescriptions” clearly stated that “[f]ederal and Texas law requires that a 72-hour emergency supply of a prescribed drug be provided.” The district court did not err in concluding that Defendants have fulfilled their obligations under bullet point 6.
With respect to bullet point 10, which required Defendants to train personnel in their ombudsman’s office, Plaintiffs’ complaints, essentially, are that any evidence of training is insufficiently detailed and conclusional. The district court relied on three declarations from state employees who testified that multiple training sessions occurred for ombudsman’s office staff. Although Plaintiffs would prefer the district court not to credit these statements, absent any indicia of unreliability other than Plaintiffs’ unsubstantiated accusations of bias, the court’s decision to do so is not clearly erroneous.
Finally, Plaintiffs contend that the district court erred in dissolving Decree ¶¶ 124–30 because it did not find that Defendants’ actions were effective. As already discussed, the word “effectively” in ¶ 129 applies to the Defendants’ communication obligation, not to the participating pharmacies’ compliance. The district court rejected Plaintiffs’ contention that the phrase “Defendants will implement an initiative to effectively inform pharmacists about EPSDT” meant ensuring that all Texas EPSDT recipients actually received all of their pharmacy benefits. The court noted that Plaintiffs had agreed that Defendants had completed the discrete, information-conveying
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No. 14-40048 actions required by this section of the Decree. This determination was not clearly erroneous.
III. Conclusion Defendants have fulfilled their obligations to provide training on and make improvements to EPSDT’s prescription drug program. The district court did not abuse its discretion in dissolving CAO 637-8 and ¶¶ 124–30 of the Decree pursuant to Defendant’s motion for relief under the first clause of Rule 60(b)(5). Accordingly, the judgment of the district court is AFFIRMED.
17

 
 Case: 14-41232 Document: 00513999506 Page: 1 Date Filed: 05/19/2017 Case 3:93-cv-00065-RAS Document 1559 Filed 05/19/17 Page 1 of 22 PageID #: 120619

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Certified as a true copy and issued as the mandate on May 19, 2017
Attest:

_______________________
No. 14-41232 _______________________
D.C. Docket No. 3:93-CV-65

United States Court of Appeals Fifth Circuit
FILED
April 27, 2017
Lyle W. Cayce Clerk

Clerk, U.S. Court of Appeals, Fifth Circuit

CARLA FREW; CHARLOTTE GARVIN, as next friend of her minor children Johnny Martinez, Brooklyn Garvin and BreAnna Garvin; CLASS MEMBERS; NICOLE CARROLL, Class Representative; MARIA AYALA, as next friend of her minor children, Christopher Arizola, Leonard Jimenez and Joseph Veliz; MARY JANE GARZA, as next friend of her minor children, Hilary Garza and Sarah Renea Garza,

Plaintiffs - Appellees

v.

CHRIS TRAYLOR, Commissioner of the Texas Health and Human Services Commission in his official capacity; KAY GHAHREMANI, State Medicaid Director of the Texas Health and Human Services Commission in her official capacity,

Defendants - Appellants

Appeal from the United States District Court for the Eastern District of Texas, Paris

Before DENNIS and COSTA, Circuit Judges, and ENGELHARDT, District Judge.

J U D G M E N T

This cause was considered on the record on appeal and was argued by counsel.

 Chief Judge of the Eastern District of Louisiana, sitting by designation.

Case: 14-41232 Document: 00513999506 Page: 2 Date Filed: 05/19/2017 Case 3:93-cv-00065-RAS Document 1559 Filed 05/19/17 Page 2 of 22 PageID #: 120620
It is ordered and adjudged that the judgment of the District Court is vacated, and the cause is remanded to the District Court for further proceedings in accordance with the opinion of this Court.
IT IS FURTHER ORDERED that defendants-appellants pay to plaintiffs-appellees the costs on appeal to be taxed by the Clerk of this Court.
JAMES L. DENNIS, Circuit Judge, concurring in Parts I-III and concurring in the judgment.

Case: 14-41232 Document: 00513999507 Page: 1 Date Filed: 05/19/2017 Case 3:93-cv-00065-RAS Document 1559 Filed 05/19/17 Page 3 of 22 PageID #: 120621

REVISED April 28, 2017

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals Fifth Circuit
FILED

No. 14-41232

April 27, 2017

Lyle W. Cayce Clerk

CARLA FREW; CHARLOTTE GARVIN, as next friend of her minor children Johnny Martinez, Brooklyn Garvin and BreAnna Garvin; CLASS MEMBERS; NICOLE CARROLL, Class Representative; MARIA AYALA, as next friend of her minor children, Christopher Arizola, Leonard Jimenez and

Joseph Veliz; MARY JANE GARZA, as next friend of her minor children, Hilary Garza and Sarah Renea Garza,

Plaintiffs - Appellees v.

CHRIS TRAYLOR, Commissioner of the Texas Health and Human Services Commission in his official capacity; KAY GHAHREMANI, State Medicaid Director of the Texas Health and Human Services Commission in her official capacity,

Defendants - Appellants

Appeal from the United States District Court for the Eastern District of Texas USDC No. 3:93-CV-65
Before DENNIS and COSTA, Circuit Judges, and ENGELHARDT,* District Judge.

Case: 14-41232 Document: 00513999507 Page: 2 Date Filed: 05/19/2017 Case 3:93-cv-00065-RAS Document 1559 Filed 05/19/17 Page 4 of 22 PageID #: 120622

PER CURIAM:**

No. 14-41232

More than two decades ago, this class action was brought on behalf of Medicaid-eligible children in Texas alleging that the State was failing to provide adequate Early, Periodic Screening, Diagnosis and Treatment (EPSDT) services. The EPSDT program focuses on preventative health care for indigent children, especially routine checkups and necessary follow up care. 42 U.S.C. §§ 1396a(a)(43); 1396d(r). Portions of an original Consent Decree and a 2007 Corrective Action Order are still in effect. But the district court recently concluded that one of the eleven corrective plans from the 2007 Order—one requiring Texas to provide annual reports on the number of eligible children receiving medical and dental checkups and to take steps to boost compliance in counties that lag behind statewide participation rates— was no longer needed. That decision was made in response to motions filed pursuant to a procedure the 2007 Corrective Action Order set forth in which, after four years, the parties would confer about the need for further action. If the parties were unable to reach agreement, as turned out to be the case, the “dispute [would] be resolved by the Court.”
Plaintiffs nonetheless sought attorney fees incurred both in preparing their motion and opposing the one filed by Defendants. They asserted entitlement to fees both as a “prevailing party” under 42 U.S.C. § 1988 and as a matter of contractual right under a fee order that accompanied the 2007 Corrective Action Order. The district court agreed with Plaintiffs and awarded the full amount of requested fees without engaging in a reasonableness analysis that considered the Plaintiffs’ degree of success.

* Chief Judge of the Eastern District of Louisiana, sitting by designation. ** Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
2

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No. 14-41232 For the reasons that follow, we agree that Plaintiffs had an entitlement to fees as the round of motion practice was the final step contemplated under the 2007 Corrective Action Order for which they were the prevailing party. As with a typical fee request, however, the district court should have engaged in a reasonableness analysis that included evaluating the party’s degree of success.
I. Only a few points about the lengthy procedural history of this case— which has included numerous appeals and a trip to the U.S. Supreme Court— need be described for the discrete attorneys’ fee question we face. See Frew v. Janek, 780 F.3d 320, 323–27 (5th Cir. 2015) (providing more detailed history of the litigation). In 1996, the district court entered a consent decree aimed at “enhance[ing] the availability of health care services, eliminate[ing] barriers that have the effect of preventing access to services, and more effectively inform[ing] recipients that services are available and important to their current and future health.” The Decree dictated that the state meet a range of objectives. Some examples include: creating outreach units to spread information about EPSDT; improving provider training on a number of issues, such as coverage of mental health screening and services for teenagers; and implementing accountability measures. More than a decade later, in 2007, Plaintiffs successfully obtained the agreed Corrective Action Order. The order resulted from Plaintiffs’ motions to enforce and to find Defendants in violation of the original decree.1 Each of the
1 Plaintiffs filed such motions in 1998, 2004, and 2007. In both 1998 and 2004, Defendants unsuccessfully attempted to dissolve the Consent Decree. See Frew ex rel. Frew v. Hawkins, 540 U.S. 431 (2004); Frazar v. Ladd, 457 F.3d 432 (5th Cir. 2006).
3

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No. 14-41232 plans in the 2007 Order deals with a specific issue, such as transportation, health care provider training, and outreach efforts.
At the same time it entered the 2007 Corrective Action Order, the district court entered an order addressing attorney’s fees (2007 Fee Order). The 2007 Fee Order has three paragraphs. The first starts with “Plaintiffs are entitled to recover attorneys’ fees, costs and expenses related to their counsel’s work on this case.” It goes on to note that such fees “include” those listed in a 2004 order and those incurred through entry of the 2007 Fee Order, but does not have any express limiting language. The last sentence specifies that “[a]lthough Defendants agree not to challenge Plaintiffs’ entitlement to fees, Defendants may challenge the amount of fees that are due.” The second paragraph applies to “fees, costs and expenses incurred by Plaintiffs’ counsel through the date of the Court’s ruling on the parties’ Joint Motion for Entry of Corrective Order.” The third applies to “procedures for attorneys’ fees, costs and expenses to be incurred following the date of the Court’s ruling on the parties’ Joint Motion for Entry of Corrective Action Order.” Much of the debate that has ensued about the 2007 Fee Order concerns the following: Does the entitlement to fees discussed in Paragraph One apply to all “work on the case” with the other paragraphs then just describing different procedure for obtaining those fees, as Plaintiffs contend? Or, as Defendants contend, does the first paragraph acknowledge a right to fees only through entry of the 2007 Corrective Action Order pursuant to the steps described in the second paragraph?
This question about interpretation of the 2007 Fee Order arose in connection with the provision of the 2007 Corrective Action Order focused on “Check Up Reports and Plans for Lagging Counties.” After the plan details the requirements concerning checkups and boosting participation in counties with low levels of compliance, its final provision states:
4

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No. 14-41232 Beginning four years from the date of entry of the corrective action orders (“order entry date”), counsel will confer to determine what further action, if any, is required. If the parties agree, they will so report to the Court within 120 days following the fourth anniversary of the order entry date. If the parties cannot agree within 90 days of the fourth anniversary of the order entry date, the dispute will be resolved by the Court. If the parties cannot agree, either party may file a motion within 30 days of the completion of discussion among counsel.
Following this procedure, both sides conferred regarding the need for further action related to the checkup reports and lagging counties. When they did not reach agreement, both submitted motions to the district court. Plaintiffs sought further action regarding checkup reports and the lagging counties; Defendants sought to modify both the Corrective Action Order and Consent Decree under Rule 60(b)(5) to eliminate the provisions in both that related to checkup reports or lagging counties, asserting they had met all requirements. The district court denied the Plaintiffs’ motion, and granted the Defendants’ motion. Plaintiffs did not appeal that ruling.
Despite coming out on the losing end, Plaintiffs sought attorneys’ fees for the time spent briefing both motions. The district court ruled that the Plaintiffs were entitled to attorneys’ fees pursuant to the 2007 Fee Order, and emphasized that the Plaintiffs were the prevailing party both in obtaining the original consent decree and the corrective action order. The court ordered that Defendants pay Plaintiffs’ their requested $129,140.00 for work on the contested motions. The court rejected Defendants request to analyze the reasonableness of the fees based on the degree of Plaintiffs’ success, finding that because the basis of the fees was the agreed-upon Corrective Action Order
5

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No. 14-41232 and 2007 Fee Order, the “success or failure of the work” did not “determine[] payment in this instance.”2
On appeal, the parties focus on two different bases for attorneys’ fees: (1) a contractual basis rooted in whether the first paragraph of the 2007 Fee Order entitles Plaintiffs to permanent fees for the duration of this litigation; and (2) a statutory basis dependent on whether Plaintiffs are a “prevailing party” under 42 U.S.C. § 1988. The latter implicates differing views among the circuits over the bounds of postdecree fee entitlement. Defendants also argue that even if fees were generally available on either a contractual or statutory basis, the district court should have assessed the reasonableness of Plaintiffs’ position and their degree of success.
II. The court has jurisdiction to hear this interlocutory appeal under the collateral order doctrine. Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978) (holding interlocutory orders appealable if they: “conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.”). Whether an interim fee award meets the requirements of the collateral order doctrine is a case-by-case question. Such awards are generally appealable, however, in cases like this one in which the underlying litigation involves a consent decree of indefinite duration. Walker v. U.S. Dep’t of Hous. & Urban Dev., 99 F.3d 761, 766–67 (5th Cir. 1996). The Court reviews de novo the question of whether Plaintiffs are “prevailing parties” under 42 U.S.C. § 1988. Davis v. Abbott, 781 F.3d 207, 213 (5th Cir. 2015). The Corrective Action Order and 2007 Fee Order are
2 The district court also did not analyze the reasonableness of counsel’s rate or the amount of time spent on particular tasks because Defendants did not raise arguments about the reasonableness of the fee beyond degree of success.
6

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No. 14-41232 interpreted according to contract law. See Dean v. City of Shreveport, 438 F.3d 448, 460 (5th Cir. 2006) (“When interpreting a consent decree, general principles of contract interpretation govern.”); Ergon-W. Virginia, Inc. v. Dynegy Mktg. & Trade, 706 F.3d 419, 424 (5th Cir. 2013) (explaining that unambiguous contracts are reviewed de novo; a district court’s interpretation of an ambiguous contract that uses extrinsic evidence is reviewed for clear error). The actual award of attorneys’ fees is reviewed for abuse of discretion, with factual findings subject to review for clear error and legal conclusions reviewed de novo. Davis, 781 F.3d at 213.
III. We first consider the statutory argument for fees based on “prevailing party” status. Attorneys’ fees for the victorious plaintiff have become a staple of modern civil rights litigation. Section 1988(b) provides that for any action or proceeding to enforce a given set of civil rights laws, the court may award attorneys’ fees to the prevailing party. 42 U.S.C. § 1988(b). Although the language is discretionary, the Supreme Court has held that prevailing parties should be awarded reasonable fees, absent exceptional circumstances. Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (“[A] prevailing plaintiff should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.”) (internal citation omitted). A party that successfully obtains a settlement agreement that is made enforceable through a consent decree is a prevailing party. See Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 604 (2001), citing Maher v. Gagne, 448 U.S. 122 (1980); see also El Paso Indep. Sch. Dist. v. Richard R., 591 F.3d 417, 422 (5th Cir. 2009) (noting that obtaining a consent decree may be the basis for awarding attorneys’ fees). Fees may also be recoverable for successful work done after entry of the consent decree that is done to enforce the decree. Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546, 559
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No. 14-41232 (1986) (holding that a party may be entitled to attorneys’ fees for postdecree enforcement work under the fee-shifting provision of the Clean Air Act, analogizing and relying in part on lower court decisions allowing fees under § 1988 for “post-judgment monitoring”); Walker, 99 F.3d at 767 (“Monitoring a consent judgment previously entered entitles a plaintiff to attorneys’ fees . . . Plaintiffs may recover attorneys’ fees for actions enforcing an earlier judgment, if they prevail in such enforcement. Actions to prevent the modification of an earlier judgment are sufficiently similar for the same reasoning to apply. . .”).
Under this established law, the district court repeatedly awarded fees to Plaintiffs without opposition for their attorneys’ time spent obtaining the original decree and the 2007 Corrective Action Order, as well as for monitoring and compliance work contemplated by those orders. See Appellants’ Br. 18 (arguing that Plaintiffs’ counsel is not entitled to fees “for any of their work on Lagging Counties after Plaintiffs’ attorneys began drafting their motion for further action in January 2012”); What at is at issue here is the fees related to their work drafting the motion for further action and defending against the state’s motion. Defendants argue that because Plaintiffs were unsuccessful in extending the defendants’ obligations under the lagging counties provision, they are not a “prevailing” party.
Defendants would have a strong argument if the Plaintiffs’ unsuccessful attempt to extend the lagging counties provisions was not rooted in a procedure Plaintiffs bargained for and obtained in the 2007 Corrective Action Order. Two circuits have taken a restrictive approach to fee requests for postdecree work that proves unsuccessful. In Alliance to End Repression v. City of Chicago, 356 F.3d 767 (7th Cir. 2004), the Seventh Circuit rejected a request for fees related to work taking place between 1994 and 2001 that unsuccessfully opposed the City’s motion to modify a consent decree entered in the 1970s and also failed to obtain a finding that the City was in contempt of the decree. Id. at 768–69.
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No. 14-41232 Although the court suggested that fees for postdecree monitoring efforts may be recoverable when the consent decree requires that a party fill a specified monitoring function, the decree at issue did not provide for such monitoring. Id. at 772 (“Neither the original nor the modified decree imposes on [Plaintiff class’s] lawyers any duty of operating the compliance machinery. They could have walked away from the case as soon as the consent decree was approved confident that a compliance machinery in which they had been given no role had been established.”). The Sixth Circuit took a similar approach in finding that fees may be awarded only for postdecree work that is both “necessary to enforce the prior order and result[s] in a subsequent court order or agency determination that at the very least secures plaintiffs’ initial success in obtaining the consent decree.” Binta B. ex rel. S.A. v. Gordon, 710 F.3d 608, 625 (6th Cir. 2013) (internal quotation omitted). But again, the work for which fees were sought and denied in that case—including an unsuccessful motion for an injunction in a separate but related case, work training counsel from other health advocacy organizations, and lobbying with legislators when opposing counsel was not present and did not authorize such efforts—was not provided for in the earlier consent decree.3 Id. at 629–34, 636–39.
Both the Sixth and Seventh Circuit find support for their view in the “material alteration of the legal relationship” standard the Supreme Court articulated in rejecting a “catalyst” theory for attorneys’ fees in Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 604–05 (2001). See Alliance to End Repression, 356 F.3d at 771 (noting that
3 The fact-specific nature of this inquiry is evident from the postdecree fees that the Sixth Circuit did uphold; it affirmed fees for work it could determine was both necessary and resulted in securing earlier success, such as time analyzing a reform proposed by the defendants that was necessary to prepare for litigation that partially maintained the plaintiffs’ success, and remanded for the district court to determine whether other activities were both necessary and either secured or advanced the Plaintiffs’ victory. Id. at 640.
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No. 14-41232 “[m]onitoring may reduce the incidence of violations of a decree, but if it does not produce a judgment or order, then under the rule of Buckhannon it is not compensable,” and specifically holding that compensation for “piggyback monitoring” efforts by counsel that are not required by a court order “do not survive Buckhannon”); Binta B., 710 F.3d at 624 (concluding that Buckhannon does not go so far as to prohibit fees for any postdecree work that does not result in a change to the parties’ legal relationship, but it must be “accord[ed] . . . some weight in the post-decree context”). Other circuits, however, do not see Buckhannon as curtailing preexisting case law on postdecree fees and thus treat such requests more favorably.4 See Prison Legal News v. Schwarzenegger, 608 F.3d 446, 451–52 (9th Cir. 2010) (discussing how Buckhannon did not overturn Delaware Valley nor require the Ninth Circuit to change how it assessed post-judgment monitoring); Johnson v. City of Tulsa, Okla., 489 F.3d 1089, 1108 (10th Cir. 2007) (rejecting what it took as Alliance’s requirement that postdecree work must result in a material change in order to entitle a party to fees).
But this is not a case in which Plaintiffs simply ended up being unhappy with the terms of, or compliance with, a consent decree and sought to modify it or extend it in a manner not contemplated by the decree. We thus need not decide which approach of our sister circuits should be followed in deciding the extent to which “prevailing party” status obtained in an early stage of a lawsuit continues to apply to unanticipated disputes arising later in the case.
4 Before Buckhannon, courts routinely approved fees for postdecree work that was not successful but that was nonetheless viewed as intertwined with the original decree. See, e.g. Plyler v. Evatt, 902 F.2d 273, 281 (4th Cir. 1990) (awarding fees for an unsuccessful attempt to oppose modification of a consent decree because counsel had an obligation to oppose modification when such efforts were “essential to the preservation of the integrity of the consent decree as a whole”); Turner v. Orr, 785 F.2d 1498, 1504 (11th Cir. 1986) (holding that a prevailing plaintiff is entitled to fees for work seeking to enforce the judgment, “regardless of the outcome of each individual post-judgment effort involving litigation”).
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No. 14-41232 Plaintiffs here seek attorneys’ fees for a discrete set of motions contemplated in the 2007 Corrective Action Order for which they indisputably obtained prevailing party status. Negotiations and motion practice concerning the status of the checkup reports and lagging counties provision come 2011 was part of what Plaintiffs achieved as a result of their 2007 success. This established framework makes the motions at issue more like a compliance or dispute resolution procedure that was a part of the parties’ agreement than a new, distinct motion to obtain a form of relief beyond what was established in the original decree. Defendants argue that unlike the mandatory negotiation provision, the Corrective Action Order did not require the filing of a motion in 2012, and Plaintiffs should thus not receive fees when their decision to file a motion ended up not being a sound one. 5 At a minimum, however, part of what Plaintiffs achieved in 2007 was the opportunity to have the Court decide whether the “checkup reports and lagging counties” plan should continue. Prevailing party status obtained in 2007 thus extended to the final step contemplated in the Corrective Action Order for the lagging counties provision. See Walker, 99 F.3d at 767 (“Monitoring a consent judgment previously entered entitles a plaintiff to attorneys’ fees.”). That the work arises out of a discrete procedure expressly anticipated in the Corrective Action Order also eliminates the concern expressed by the Sixth and Seventh Circuits that early success in institutional litigation could create a “gravy train” or “cottage industry” of never-ending fee requests for civil rights attorneys regardless of what they
5 Defendants’ argument that conferring was required but motion work was discretionary is in tension with some language in the Corrective Action Order. It requires that the district court decide whether further action is necessary if the parties cannot agree: “If the parties cannot agree within 90 days of the fourth anniversary of the order entry date, the dispute will be resolved by the Court.” The plain language thus appears to contemplate the oblation ends only when the parties agree no further action is required or the court makes that determination.
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No. 14-41232 accomplish.6 See Binta B., 710 F.3d at 625; Alliance to End Repression, 356 F.3d at 772. Our reasoning would not extend, for example, to a motion filed by Plaintiffs in 2017 seeking to reinstitute the “lagging counties” provision.
IV. Of course, prevailing party status does not automatically entitle a party to the full amount of attorneys’ fees incurred. Courts review such requests for reasonableness, which includes consideration of the success achieved. See Hensley, 461 U.S. at 436 (“If . . . a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount. . . . [T]he most critical factor [in determining a reasonable fee] is the degree of success obtained.”). The district court did not engage in that typical analysis, likely because it seemed to conclude that Plaintiffs were entitled to fees based not just on “prevailing party” status as to the 2007 Corrective Action Order alone, but also as a contractual right under the 2007 Fee Order. And it apparently read that agreement as providing a contractual entitlement to fees not subject to reasonableness review. Because we have determined that Plaintiffs are a prevailing party for purposes of the two motions at issue as a result of their success in obtaining that procedure as part of the 2007 Corrective Action Order, we do not reach the full question of whether the separate 2007 Fee Order entitles them to
6 Nor does the Corrective Action Order allow nonparties to file a motion for further relief, as was the case in Alliance to End Repression. 356 F.3d at 771–72 (noting that anyone, not just class counsel, could have brought the contempt actions under the decree provisions for an indefinite period of time and comparing the procedures to adversary proceedings within bankruptcy). The procedural framework at issue here was limited to Plaintiffs’ counsel and to this one-time motion practice before the district court.
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No. 14-41232 prevailing party status throughout this litigation.7 To the extent the district court read the 2007 Fee Order as providing a right to fees not subject to typical court scrutiny, however, we must consider at least that aspect of the ruling in deciding Defendants’ back-up argument that the fees should have been reviewed for reasonableness.
We conclude that even if the 2007 Fee Order entitles Plaintiffs to attorneys’ fees throughout this litigation, it does not exempt the requested fees from the judicial scrutiny for reasonableness that typically applies to prevailing party fee requests. The 2007 Fee Order requires that if the parties cannot agree on attorneys’ fees, costs and expenses, Plaintiffs shall submit their motion for fees to the court. What would be the point of motion practice if Plaintiffs have the right to full fees without ordinary court scrutiny? If this were the parties’ agreement, Defendants would be indefinitely required to pay for any and all fees for work related to the Corrective Action Order that Plaintiffs choose to incur, no matter how unreasonable or unsuccessful their efforts may be. Indeed, the district court acknowledged that it must review whether the time spent and rates charged for the motion practice was reasonable but Defendants did not object on either ground; the court simply did not consider the degree of success. We see little basis for finding that the agreement allows some aspects of ordinary fee scrutiny but not others. Indeed, courts often engage in full reasonableness review, which includes considering the result obtained as one factor, even for attorney fee awards provided by
7 Interpretation of the 2007 Fee Order is less clear than the district court’s order may suggest. As mentioned above, it is not obvious how the paragraphs relate to one another. Does the statement that “Plaintiffs are entitled to recover attorneys’ fees, costs and expenses related to their counsel’s work on this case” apply only to the following paragraph or all three paragraphs? Even if the third paragraph discussing procedures for obtaining fees for expenses incurred following entry of the 2007 Corrective Action Order stands by itself, in addressing those procedures, is it agreeing that Plaintiffs are entitled to such fees?
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No. 14-41232 contract. See, e.g., Natco Ltd. P’ship v. Moran Towing of Fla., Inc., 267 F.3d 1190, 1196 (11th Cir. 2001); Graceland Fruit, Inc. v. KIC Chemicals, Inc., 302 F. App’x. 323, 325–328 (6th Cir. 2008); Malin Int’l Ship Repair & Drydock, Inc. v. M/V SEIM SWORDFISH, 611 F. Supp. 2d 627, 634–35 (E.D. La. 2009). Absent more direct language waiving the reasonableness review that ordinarily applies to prevailing party fees, Plaintiffs’ position is not a plausible reading of the order. See Robert L. Rossi, ATTORNEYS’ FEES § 9:36 (2016) (“When an award of attorneys’s fees is authorized by contract, the fee awarded must be reasonable even in the absence of a provision requiring that the fee be reasonable.”); Spirtas Co. v. Ins. Co. of the State of Pa. , 555 F.3d 647, 653 (8th Cir. 2009) (noting that when the fee provision does not contain a reasonableness requirement, “[o]ur court and Missouri’s courts . . .generally will infer a reasonableness requirement in all contractual fee provisions as a matter of public policy”). The district court therefore erred in not considering the degree of success among the many factors that are assessed in determining whether prevailing party attorneys’ fees are reasonable.
* * * * * We conclude that Plaintiffs were the prevailing party for purposes of the two motions at issue as court consideration of them was part of the relief they successfully obtained in the 2007 Corrective Action Order. But because the district court did not consider the degree of success in analyzing the reasonableness of the fees requested, the interim fee order is VACATED and REMANDED for the district judge to conduct this inquiry.
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No. 14-41232 JAMES L. DENNIS, Circuit Judge, concurring in Parts I-III and concurring in the judgment:
I agree with the majority opinion’s discussion of prevailing-party status and with its disposition of this appeal. However, in my view, the district court correctly concluded that it is the 2007 Fee Order, not 42 U.S.C. § 1988, that entitles the Plaintiffs to attorneys’ fees, and I am convinced that this fact should control the reasonableness analysis on remand.
The Fee Order explicitly states, “Plaintiffs are entitled to recover attorneys’ fees, costs and expenses related to their counsel’s work in this case.” It also notes that the entitlement to fees “include[s]” those incurred through the date of the 2007 order. “The participle including typically indicates a partial list,” Include, BLACK’S LAW DICTIONARY (10th ed. 2014); thus, this provision could easily be read as clarifying that the fees for present and future work are governed by the same rules. Additionally, the order contains a distinct paragraph that “concerns attorneys’ fees, costs and expenses incurred by Plaintiffs’ counsel through the date of the Court’s ruling” on the CAO, suggesting that the rest of the order concerns expenses incurred after the date of the Court’s ruling. The order also establishes a procedure “for attorneys’ fees, costs and expenses to be incurred following the date of the Court’s ruling” on the Corrective Action Order (CAO), which includes a requirement that the parties meet annually to discuss fees and seek a court order if they cannot agree. At the very least, the presence of these provisions makes the Fee Order ambiguous with respect to the extent of the Plaintiffs’ entitlement to attorneys’ fees. The district court’s conclusion, based on extrinsic evidence, that the Plaintiffs were entitled to fees for the legal work at issue on the basis of the Fee Order was therefore not clearly erroneous. See Ergon-W. Va, Inc. v. Dynegy Mktg. & Trade, 706 F.3d 419, 424 (5th Cir. 2013) (“[C]lear error is the standard
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No. 14-41232
of review when a district court uses extrinsic evidence to interpret an ambiguous contract.”).
Of course, I agree with the majority that even a contractual award must be reasonable; indeed, the Fee Order here states that, as prevailing parties, the Plaintiffs are entitled “to be awarded their reasonable fees, costs and expenses.” (Emphasis added). Contrary to the majority opinion’s view, the district court did not believe that the Plaintiffs were contractually entitled to attorney fees “not subject to reasonableness review.”1 Op. at 12. Instead, the court correctly read the Consent Decree, the CAO, and the Fee Order to impose a duty upon the Plaintiffs to provide a check against the Defendants’ default or modification of their obligations thereunder, and to further provide that the plaintiffs shall be reimbursed for attorneys’ fees reasonably incurred in the performance of that duty. The decree and CAO call upon the plaintiffs merely to provide a crucible to test the defendants’ motions for discontinuance or modification of their obligations, and the district court did not err in finding that the plaintiffs and their attorneys acted reasonably in providing diligent and proper opposition to the defendants’ motions and that their requested fee amount reflected the work that counsel performed.
Furthermore, I disagree with the majority opinion’s suggestion that Hensley v. Eckerhart, 461 U.S. 424, 436 (1983), governs the reasonableness analysis when the entitlement to an award is based in contract. The scrutiny that typically applies to prevailing party fee requests in civil rights cases—and the idea that the degree of success obtained is “the most critical factor,” id.—is derived from interpretations of § 1988 and readings of Congressional intent. It
1 Indeed, the district court acknowledged that the Defendants could challenge the reasonableness of an award made pursuant to the Fee Order and gave examples of the factors that could be considered during this sort of review; the defendants chose to challenge the fee award only on the basis of the degree of success.
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is therefore not applicable where the entitlement is contractually based. In Hensley, the Supreme Court relied on the legislative history of § 1988 to observe that, in enacting the fee-shifting provision, “Congress has not authorized an award of fees whenever it was reasonable for a plaintiff to bring a lawsuit or whenever conscientious counsel tried the case with devotion and skill.” Id. at 429–30, 436. But where a contractual fee agreement entitles a party to attorneys’ fees related to their counsel’s work on a particular case, “[t]he contractual entitlement . . . [has] supplemented or superseded the statutory one,” All. To End Repression v. City of Chicago, 356 F.3d 767, 770 (7th Cir. 2004); the scope of Congress’s authorization under § 1988 therefore has no bearing, cf. McKeage v. TMBC, LLC, 847 F.3d 992, 1003 (8th Cir. 2017) (“In cases involving contractual fee-shifting provisions, there is no relevant underlying congressional intent that might preclude a common fund award.”).
To be clear, our circuit precedent still requires the district court to consider the degree of success obtained when analyzing the reasonableness of a contractual award. In Johnson v. Georgia Highway Express, Inc., a case brought under Title VII of the Civil Rights Act, our court laid out twelve factors that must be considered in determining the reasonableness of a fee award, including “[t]he amount involved and the results obtained.” 488 F.2d 714, 717 (5th Cir. 1974), overruled on other grounds, Blanchard v. Bergeron, 489 U.S. 87 (1989). We have since applied those twelve factors when determining the reasonableness of attorneys’ fees based in contract. See, e.g., Meineke Disc. Muffler v. Jaynes, 999 F.2d 120, 126 (5th Cir. 1993). But unlike under Hensley, degree of success under Johnson is not the most critical factor. See Johnson 488 F.2d at 717–19 (listing the twelve factors without suggesting relative importance). The district court’s denial of the Plaintiffs’ motion and grant of the Defendants’ motion should thus not have a disproportionate influence on
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No. 14-41232
the reasonableness of the related fee award. I therefore respectfully disagree with the majority’s conclusion that the source of the Plaintiffs’ entitlement to attorneys’ fees has no bearing on the reasonableness review.
In any event, I emphasize that, even under the analysis adopted by the majority opinion, the district court is in no way bound to reduce the Plaintiffs’ fee award to zero after considering the reasonableness of the award in light of the degree of success obtained. The Plaintiffs’ attorneys’ fees were incurred in the performance of a duty that was imposed by the CAO that they successfully obtained in 2007; the district court should therefore consider the Plaintiffs’ success in obtaining that order when it analyzes the reasonableness of attorneys’ fees incurred in the performance of their decretal duty.2 And the district court should remember that, although the Supreme Court has highlighted the importance of this factor in determining whether a fee award requested under § 1988 is reasonable, it is still one factor out of many and is not alone be determinative of the district court’s analysis. See Hensley, 461 U.S. at 436–37 (“There is no precise rule or formula for making [reasonableness] determinations. . . . The court necessarily has discretion in making this equitable judgment.”).
2 Failing take this earlier success, and the resulting duties, into account would lead to an absurd and unjust result. If the Plaintiffs and their attorneys are held to be entitled to little or no attorneys’ fees unless they completely defeat the defendants’ motions, the Plaintiffs may be forced to perform their duty the advice and assistance of compensated counsel. Neither the statute nor the relevant court decisions can fairly be read to require such results.
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48.30

7

46

.15

48.30

19th

LYLE W.CAYCE

May

48.30 2017

Case: 14-41232 Document: 00513999509 Page: 1 Date Filed: 05/19/2017 Case 3:93-cv-00065-RAS Document 1559 Filed 05/19/17 Page 22 of 22 PageID #: 120640

LYLE W. CAYCE CLERK

United States Court of Appeals
FIFTH CIRCUIT OFFICE OF THE CLERK
TEL. 504-310-7700 600 S. MAESTRI PLACE NEW ORLEANS, LA 70130
May 19, 2017

Mr. David O'Toole Eastern District of Texas, Beaumont United States District Court 300 Willow Street Room 104 Beaumont, TX 77701-0000
No. 14-41232 Carla Frew, et al v. Thomas Suehs, et al USDC No. 3:93-CV-65

Dear Mr. O'Toole,
Enclosed is a copy of the judgment issued as the mandate and a copy of the court's opinion.
Enclosed for the district court and counsel is the approved bill of costs.

Sincerely,
LYLE W. CAYCE, Clerk
By: _________________________ Sabrina B. Short, Deputy Clerk 504-310-7817
cc w/encl: Mr. J. Campbell Barker Mr. Sean Patrick Flammer Mr. Timothy Borne Garrigan

 
 457 F.3d 432 (2006)
Jeneva FRAZAR, et al., Plaintiffs, Linda Frew, as next friend of her minor child, Carla Frew; Carla Frew; Charlotte Garvin, as next friend of her minor children, Johnny Martinez, Brooklyn Garvin and BreAnna Garvin; Shannon Garcia, as next friend of her minor children, Andrew Garcia, Marisha Garcia, Stephen Sanchez and Allison Sanchez; Maria Ayala, as next friend of her minor children, Christopher Arizola, Leonard Jimenez and Joseph Veliz; Mary Fisher, as next friend of her minor child, Tyrone T. Edwards; Mary Jane Garza, as next friend of her minor children, Hilary Garza and Sarah Renea Garza,
Plaintiffs-Appellees, v.
Richard LADD, et al., Defendants, David Ballard, Texas State Medicaid Director; Albert Hawkins, State Commissioner of Health and Human Services; Dr. Eduardo Sanchez, Commissioner of Health; Bridgett Cook, employee of Texas Department
of Health in official capacity, Defendants-Appellants.
No. 05-41798.
United States Court of Appeals, Fifth Circuit.
July 20, 2006.
434*434 Susan F. Zinn, San Antonio, TX, Jane K. Swanson, The Woodlands, TX, for Plaintiffs-Appellees.
Philip Andrew Lionberger, Deputy Sol. Gen., Matthew F. Stowe, Linda A. Halpern, Austin, TX, for Defendants-Appellants.
Before REAVLEY, SMITH and DENNIS, Circuit Judges.
REAVLEY, Circuit Judge:
This is the latest chapter in the suit to improve Texas administration of the Medicaid program to afford health care to the certified class of indigent children.[1]The state officials filed this motion to terminate or modify the consent decree entered in 1996. The district court denied the motion and we affirm.

I. 435*435
Following remand from this court, defendants moved pursuant to Federal Rule of Civil Procedure 60(b)(5) to terminate the entire consent decree or, in the alternative, to dissolve the consent decree as to all urban areas of Texas.[2]Defendants argued that they were in compliance with federal Medicaid law, therefore rendering the consent decree unnecessary, and its enforcement inequitable. Defendants argued that the ends of the consent decree had been met (i.e., compliance with the federal law), and it was no longer equitable that the judgment should have prospective application. In the alternative, defendants argued that they established compliance with federal law in all urban areas of Texas and, thus, the objects of the consent decree had been attained, and it should have no prospective application, with respect to urban areas.
Plaintiffs argued that defendants were not entitled to Rule 60(b)(5) relief because: (1) compliance with federal law alone was insufficient to warrant dissolution of the consent decree; (2) defendants were not in compliance with federal law; (3) defendants had never attempted to comply, in good faith, with certain provisions of the consent decree; and (4) the objects of the consent decree had not been attained.
Following an eight-day evidentiary hearing on the Rule 60(b)(5) motion, and consideration of post-hearing briefs, the district court issued a decision denying defendants' Rule 60(b)(5) motion in its entirety. The district court applied the legal standard articulated by the Supreme Court in Rufo v. Inmates of the Suffolk County Jail, 502 U.S. 367, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992) and by this court in Cooper v. Noble, 33 F.3d 540 (5th Cir. 1994). The dispositive holding of the district court was to reject defendants' overriding contention that the recent opinion of the Supreme Court in Frew II requires termination of judicial oversight when the state complies with federal law, whatever the terms of the consent decree may be.
II.
We have jurisdiction[3] and review the denial of a Rule 60(b) motion for an abuse of discretion.[4] A district court's ruling on a Rule 60(b) motion is entitled to deference.[5] We review de novo, however, any questions of law underlying the district court's decision.[6]
A.
Defendants contend that the district court applied the incorrect legal standard for consent decree modification in institutional reform cases and argue that the district court failed to follow the Supreme Court's admonishments in Frew II regarding federalism, separation of powers, democratic accountability, and deference to those state officials responsible for administering public institutions and programs. The contention is that instead of following Frew II, the district court placed 436*436 too much importance on the Rufo test for consent decree modification.

In Rufo, the Court noted that the standard for modification of consent decrees, now set forth in Federal Rule of Civil Procedure 60(b),[7] is a "flexible" one[8] and a party seeking modification of a consent decree "bears the burden of establishing that a significant change in circumstances warrants revision of the decree."[9] That burden may be met "by showing either a significant change either in factual conditions or in law."[10] Once a moving party meets this standard, a district court must consider "whether the proposed modification is suitably tailored to the changed circumstance."[11]
We have had one occasion to apply the standard set forth in Rufo. In Cooper, we upheld a magistrate judge's denial of the defendants' Rule 60(b) motion in a pre-Prison Litigation Reform Act case applying the Rufo Rule 60(b) standard.[12] We explained:
When significant changes in factual conditions make a consent judgment unworkable, make compliance substantially more onerous, or make enforcement detrimental to the public interest, a court has the discretion to modify the judgment. However, the Supreme Court [in Rufo] never suggested that changed factual circumstances in and of themselves were sufficient grounds for relief from a judgment. In fact, the Court insisted that the petitioning party must "ma[k]e a reasonable effort to comply with the decree." Thus, even if we take as true all the alleged changes in factual conditions, the county officials are far from meeting their burden under Rufo. The county officials must also: (1) show that those changes affect compliance with, or the workability or enforcement of, the final judgment, and (2) show that those changes occurred despite the county officials' reasonable efforts to comply with the judgment.[13]
The most recent pronouncement from the Supreme Court on the modification of decrees occurred in this case. In Frew II, while in addition to holding that the Eleventh Amendment does not act as a bar to an enforcement action to a consent decree the initial entry of which was consistent with Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), the Court dedicated Section III of its opinion to state officials warning that enforcement of consent decrees can undermine the sovereign interest and accountability of state governments.[14]
The Court acknowledged that:
[i]f not limited to reasonable and necessary implementations of federal law, remedies outlined in consent decrees involving state officeholders may improperly deprive future officials of their designated legislative and executive powers. 437*437 They may also lead to federal court oversight of state programs for long periods of time even absent an ongoing violation of federal law.[15]
In such circumstances, the Court stated, the States are not without remedy:
When a suit under Ex parte Young requires a detailed order to ensure compliance with a decree for prospective relief, and the decree in effect mandates the State, through its named officials, to administer a significant federal program, principles of federalism require that state officials with front-line responsibility for administering the program be given latitude and substantial discretion.

The federal court must exercise its equitable powers to ensure that when the objects of the decree have been attained, responsibility for discharging the State's obligations is returned promptly to the State and its officials. As public servants, the officials of the State must be presumed to have a high degree of competence in deciding how best to discharge their governmental responsibilities. A State, in the ordinary course, depends upon successor officials, both appointed and elected, to bring new insights and solutions to problems of allocating revenues and resources. The basic obligations of federal law may remain the same, but the precise manner of their discharge may not. If the State establishes reason to modify the decree, the court should make the necessary changes; where it has not done so, however, the decree should be enforced according to its terms.[16]
The Court cited two cases as examples of the application of Rule 60(b) to consent decrees in the context of institutional reform litigation: Rufo, 502 U.S. 367, 112 S.Ct. 748, 116 L.Ed.2d 867 and Philadelphia Welfare Rights Organization. v. Shapp, 602 F.2d 1114 (3d Cir.1979).[17]
Defendants contend that in light of the principles expressed in Frew II, the Supreme Court altered the standard that courts employ to modify a consent decree arising from institutional reform litigation, and that Frew II marks a shift away from Rufo's changed-circumstances approach. They contend that Frew IIadopted a more flexible approach, one which places considerable weight upon democratic accountability and federalism concerns. According to defendants, this alleged new standard annunciated by the Court in Frew II requires the district court to promptly return the State's program to state officials when the objects of the decree have been attained, and to do so here because the object of the consent decree is compliance with the Medicaid Early Screening, Diagnosis and Training Program (EPSDT) and they are in compliance with the EPSDT. In essence, defendants argue that Frew II 438*438 requires the district court to promptly return the State's program to state officials if there are no ongoing violations of federal law.
We reject defendants' argument that Frew II ushers in a new standard for consent decree modification. While the Court in Frew II did underscore the federalism mandates in institutional reform litigation, it did not alter the standard for modification of consent decrees. Instead, it directed lower courts to Rufo and Shapp as examples of the proper application of Rule 60(b)(5) to modification of institutional reform consent decrees, neither of which discusses mere compliance with federal law as a reason for modifying the decree. Further, Frew II did not mention federal law compliance as a factor in the Rule 60(b)(5) analysis.
As the district court aptly stated:
Dissolution based on mere compliance with the minimum requirements of federal law is, additionally, inequitable, because it would permit perpetual re-litigation of the merits of Plaintiffs' claims. In choosing to voluntarily enter into the Consent Decree, Defendants waived the opportunity to litigate the merits of the claims in Plaintiffs' Third Amended Complaint in exchange for negotiating the terms of the Consent Decree and avoiding the time, expense, and inevitable risk of litigation. See Cooper, 33 F.3d at 545. Through their argument that compliance with federal law necessarily warrants relief under Rule 60(b)(5), however, Defendants are seemingly attempting to re-litigate the claims underlying the

Consent Decree. If the basis for a meritorious Rule 60(b) motion is that the claims underlying the consent decree are not meritorious, then parties to consent decrees would be permitted to file periodic Rule 60(b) motions asserting compliance with federal law and, in effect, continually re-litigate the underlying claims until a court determines the defendants are in compliance with federal law and the decree is dissolved. The party filing the Rule 60(b) motion would potentially be able to eliminate consent decree obligations, even if there is no attempted compliance with its legally enforceable terms, no showing that conformity to federal law makes compliance with the consent decree substantially more onerous or unworkable, and no showing that the requested relief is sufficiently tailored to the changed factual circumstances. See Rufo, 502 U.S. at 384-91, 112 S.Ct. 748, 116 L.Ed.2d 867; Cooper, 33 F.3d at 545. It follows that the parties opposing dissolution would not enjoy the benefits for which they bargained or the judicially enforceable obligations upon which they relied in entering into the consent decree; and the parties seeking dissolution would paradoxically be entitled to equitable relief despite their inequitable behavior. A Rule 60(b) motion is not a vehicle by which Defendants may disregard the voluntary obligations contained in the Consent Decree, allow time to pass, and then litigate the underlying claims in hopes of never actually complying with [] its terms.[18]
If the Court wished the law to be that consent decrees must be dissolved if defendants comply with federal law, it would have expressly stated so. It did not. A rule of law based on a single factor (compliance with federal law) is the opposite of the Court's requirement of equitable flexibility.[19] We hold that the district court 439*439 properly determined that the applicable legal standard in this case came from Rufo and Cooper.
The district court recognized Frew II's admonishment that "when the objects of the decree have been attained, the responsibility for discharging the State's obligations [must be] returned promptly to the State and its officials."[20]Defendants argued that the only legitimate object of the consent decree was to ensure compliance with federal law regarding the administration of the EPSDT program. The district court rejected this argument and held that the compliance with federal law is not the sole object of the consent decree.[21] The consent decree itself does not reference mere compliance with federal law as its object. Rather, it speaks to the broader goals of enhancing recipients' access to health care and improving the use of health care services by Texas EPSDT recipients.[22]The decree implements the Medicaid statute "in a highly detailed way, requiring the state officials to take some steps that the statute does not specifically require."[23] The district court held that "[t]o interpret the sole object of the Consent Decree to ensure compliance with something less than that which is stated in the Consent Decree itself would be akin to rewriting the Consent Decree to conform to the constitutional floor. Such action is prohibited by the Supreme Court's holding in Rufo."[24] To which we add that it is prohibited by the prior reversal of our holding in this case. Because the object of the consent decree is not mere compliance with federal law, the objects of the decree have not been attained.
B.
Defendants contend that if this court concludes that Frew II does not provide the applicable standard for terminating a consent decree, the district court 440*440 erred by not applying the termination standard used by the Supreme Court in the school desegregation cases: Missouri v. Jenkins, 515 U.S. 70, 115 S.Ct. 2038, 132 L.Ed.2d 63 (1995); Freeman

v. Pitts, 503 U.S. 467, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992); and Board of Education of Oklahoma City Public Schools v. Dowell,498 U.S. 237, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991).[25]
In the context of deciding whether to modify or dissolve a desegregation decree, the Court has directed district courts to consider the following factors:
whether there has been full and satisfactory compliance with the decree in those aspects of the system where supervision is to be withdrawn; [2] whether retention of judicial control is necessary or practicable to achieve compliance with the decree in other facets of the school system; and [3] whether the school district has demonstrated, to the public and to the parents and students of the once disfavored race, its good-faith commitment to the whole of the courts' decree and to those provisions of the law and the Constitution that were the predicate for judicial intervention in the first instance.[26]
The ultimate inquiry is "`whether the [constitutional violator] ha[s] complied in good faith with the desegregation decree since it was entered, and whether the vestiges of past discrimination ha[ve] been eliminated to the extent practicable.'"[27]
The district court rejected the notion that Freeman stated the standard for consent decree termination. Instead, the district court held that "[t]he applicable standard in the Fifth Circuit for both types of relief [modification and termination] is that announced in Rufo and applied in Cooper."[28] We need not pursue this question because defendants did not attempt to show that they were complying with the decree; rather, they argued that they were in compliance with federal law.[29] But to prevail under Freeman, defendants must prove "full and satisfactory compliance with the decree."[30] They did not do so and their argument here is improvident.
C.
This record and the briefs make no showing that the district court abused its discretion in holding that defendants showed no significant change in factual circumstances to warrant terminating or modifying the consent decree.
Defendants argue that under the Rufo standard and this court's interpretation of Rufo in Cooper, the evidence demonstrates sufficiently changed factual circumstances warranting the decree's dissolution, either in whole or in part. However, defendants fail to articulate how the district court abused its discretion. Instead, defendants only reiterate that they are in compliance with federal law.
441*441 The district court went through each of the alleged changed factual circumstances and held that defendants failed to meet their burden under Rufo to prove significant changed factual circumstances with respect to: (1) medical checkups;[31] (2) the provision of dental services;[32] (3) outreach;[33] (4) case management;[34] and (5) all urban areas of Texas.[35] Given that there were no significant changed factual circumstances, the district court held that any remedy that would dissolve the consent decree in its entirety or as to all

urban areas of Texas would be "grossly ill-tailored" to the facts as determined by the district court.[36]
Having reviewed the record and the district court's detailed decision, we hold that the district court did not abuse its discretion in holding that defendants failed to show a significant change in factual circumstances to warrant terminating the consent decree in its entirety or for urban areas only.
The order of the district court denying defendants' Rule 60(b)(5) motion is affirmed.
AFFIRMED.
[1] The history of reported decisions begins with the district court's first decision, Frew v. Gilbert, 109 F.Supp.2d 579 (E.D.Tex.2000) (Frew I), and moves to our first panel decision, Frazar v. Gilbert, 300 F.3d 530 (5th Cir.2000) (Frazar I), the Supreme Court's decision, Frew v. Hawkins, 540 U.S. 431, 124 S.Ct. 899, 157 L.Ed.2d 855 (2004) (Frew II), and our decision on remand from the Supreme Court, Frazar v. Hawkins, 376 F.3d 444 (5th Cir.2004) (Frazar II).
[2] Frew v. Hawkins, 401 F.Supp.2d 619, 623 (E.D.Tex.2005) (Frew III). Defendants define "urban areas" as the counties served by the Medicaid managed care organizations that have entered into the Standardized Contract for Services with the Texas Health and Human Services Commission. Id. at 631 n. 19.
[3] Rufo, 502 U.S. at 391, 112 S.Ct. at 764 ("a consent decree is a final judgment").
[4] Provident Life & Accident Ins. Co. v. Goel, 274 F.3d 984, 997 (5th Cir.2001).
[5] Cooper, 33 F.3d at 543.
[6] Ran-Nan, Inc. v. Gen. Accident Ins. Co. of Am., 252 F.3d 738, 739 (5th Cir.2001).
[7] Rule 60(b) provides, in relevant part:
On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: . . . (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application. . . .
[8] Rufo, 502 U.S. at 393, 112 S.Ct. at 765.
[9] Id. at 383, 112 S.Ct. at 760.
[10] Id. at 384, 112 S.Ct. at 760.
[11] Id. at 383, 112 S.Ct. at 760.
[12] 33 F.3d at 545.
[13] Id. at 544 (internal citations omitted).
[14] Frew II, 540 U.S. at 441-42, 124 S.Ct. at 905-06.
[15] Id. at 441, 124 S.Ct. at 905.
[16] Id. at 442, 124 S.Ct. at 906.

[17] Id. at 441, 124 S.Ct. at 906. In Shapp, a pre-Rufo case, the district court granted the defendants' motion to modify an institutional reform consent decree in light of changed circumstances that were beyond the defendants' control and were not contemplated by the court or the parties when the decree was entered. 602 F.2d at 1119-21. The consent decree at issue in Shapp was entered as a result of litigation over Pennsylvania's EPSDT program, and the defendants were seeking to modify or vacate the decree based on (1) the exemplary performance of Pennsylvania's program, and (2) inability to comply, after a good faith effort, with certain terms of the decree. The district court modified the decree in three respects after finding that the defendants had made a good faith effort at compliance, but circumstances beyond the defendants' control and not contemplated by the court or parties "put achievement of the [provisions' requirements] beyond reach." Id. at 1120-21.
[18] Frew III, 401 F.Supp.2d at 636.
[19] Defendants read Frew II as adopting a standard similar to the Prison Litigation Reform Act (PLRA) standard for terminating consent decrees. See 18 U.S.C. §§ 3626(a)(1)(A), (b)(3), (c)(1). With the PLRA, Congress sought to curtail federal courts' long-term involvement in prison reform and halt federal courts from providing more than the constitutional minimum necessary to remedy federal rights violations. H.R.REP. No. 104-21, at 24 n. 2 (1995); see also H.R.REP. No. 104-378, at 166 (1995) ("[The PLRA] amends 18 U.S.C. § 3626 to require that prison condition remedies do not go beyond the measures necessary to remedy federal rights violations. . . ."). But no such language can be found in Frew II. Further, we note that the House has introduced the Federal Consent Decree Fairness Act. H.R. 1229, 109th Cong. (1st Sess.2005). This Act would require, among others, that "the burden of proof shall be on the party who originally filed the civil action to demonstrate that the continued enforcement of a consent decree is necessary to uphold a Federal right." Id. at § 3. We leave it for Congress or the Supreme Court to change the standard.
[20] 540 U.S. at 442, 124 S.Ct. at 90.
[21] Frew III, 401 F.Supp.2d at 634-35.
[22] Id.
[23] Id. at 634-35 (quoting Frew II, 540 U.S. at 439, 124 S.Ct. 899, 157 L.Ed.2d 855).
[24] Id. at 635. In Rufo, the Court stated:
A proposed modification should not strive to rewrite a consent decree so that it conforms to the constitutional floor. Once a court has determined that changed circumstances warrant a modification in a consent decree, the focus should be on whether the proposed modification is tailored to resolve the problems created by the change in circumstances. A court should do no more, for a consent decree is a final judgment that may be reopened only to the extent that equity requires. The court should not turn aside to inquire whether some of the provisions of the decree upon separate as distinguished from joint action could have been opposed with success if the defendants had offered opposition.
502 U.S. at 391-92, 112 S.Ct. at 764 (internal quotations, citations and brackets omitted).
[25] We note that the defendants did not make this argument in the district court; rather, it was the plaintiffs who urged the district court to apply the termination standard set forth in the school desegregation cases. Frew III, 401 F.Supp.2d at 632-33.
[26] Freeman, 503 U.S. at 491, 112 S.Ct. at 1446.
[27] Id. at 492, 112 S.Ct. at 1446 (quoting Dowell, 498 U.S. at 249-50, 111 S.Ct. at 638).
[28] Frew III, 401 F.Supp.2d at 632 (emphasis in original).
[29] Id. ("Defendants do not argue that they are in substantial compliance with the Consent Decree.").
[30] 503 U.S. at 491, 112 S.Ct. at 1446.

[31] Frew III, 401 F.Supp.2d at 641-54. [32] Id. at 654-57. [33] Id. at 657-66 [34] Id. at 666-67. [35] Id. at 667-81. [36] Id. at 683.

 
 300 F.3d 530 (2002)
Jeneva FRAZAR, Etc., et al., Plaintiffs, Linda Frew, as next friend of her minor child, Carla Frew; Maria Ayala, as next friend of her minor children, Christopher Arizola, Leonard Jimenez and Joseph Veliz; Mary Fisher, as next friend of her minor child, Tyrone T. Edwards; Mary Jane Garza, as next friend of her minor children, Hilary
Garza and Sarah Renea Garza, Plaintiffs-Appellees. v.
Don GILBERT, Etc., et al., Don Gilbert, Commissioner of the Texas Health and Human Services Commission in his official capacity; Linda Wertz, Texas State Medicaid Director; Bridgett Cook, employee of Texas Department of Health in
official capacity; Susan Penfield, M.D., employee of the Texas Department of Health in official capacity; Eduardo Sanchez, M.D., Texas
Commissioner of Health, Defendants-Appellants. Jeneva Frazar, Etc., et al., Plaintiffs,
Linda Frew, as next friend of her minor child, Carla Frew; Carla Frew; Maria Ayala, as next friend of her minor children, Christopher Arizola, Leonard Jimenez and Joseph Veliz; Mary Fisher, as next friend of her minor child, Tyrone T. Edwards; Mary Jane 531*531 Garza, as next friend of her minor children, Hilary Garza and Sarah Renea Garza; Charlotte Garvin, as next friend of her minor children Johnny Martinez, Brooklyn
Garvin and Bre-Anna Garvin; Shannon Garcia, as next friend of her minor children, Andrew Garcia, Marisha Garcia, Stephen Sanchez and
Allison Sanchez, Plaintiffs-Appellees, v.
Richard Ladd, Etc., et al., Linda Wertz, Texas State Medicaid Director; Bridgett Cook, employee of
Texas Department of Health in official capacity; Susan Penfield, M.D., employee of the Texas Department of Health in official capacity; Don Gilbert, Texas Commissioner of Health and Human Services; Eduardo Sanchez, M.D., Texas Commissioner of Health, Defendants-Appellants.
Nos. 00-41112, 01-40667.
United States Court of Appeals, Fifth Circuit.
July 24, 2002.

532*532 Susan F. Zinn (argued), San Antonio, TX, Jane K. Swanson, Law Offices of Jane K. Swanson, The Woodlands, TX, Edward B. Cloutman, III, Law Offices of Ed Cloutman, Dallas, TX, for Plaintiffs-Appellees.
Julie Caruthers Parsley, Asst. Solicitor Gen., Philip Andrew Lionberger, Asst. Solicitor Gen. (argued), Melanie P. Sarwal, Austin, TX, for Defendants-Appellants.
Alisa Beth Klein (argued), Mark Bernard Stern, U.S. Dept. of Justice, Civ. Div.-Appellate Staff, Washington, DC, for Amicus Curiae.
533*533 Before REAVLEY, SMITH and DENNIS, Circuit Judges.
REAVLEY, Circuit Judge:
State officials take interlocutory appeals from orders of the district court that refused to modify a prior consent decree and required detailed state action in the administration of the Medicaid program to afford health care to the certified class of indigent children. We vacate the orders because the court has exceeded its jurisdiction.
The court expended great effort in developing a record of unmet medical needs of children in Texas that must be of concern to the people and authorities of the State, as to the district judge. The State did however have a substantial program to meet the medical needs of the class members. The number of State employees and contract workers assigned to that program has increased from about ten in 1993 to almost 500 in 2000. Participation by eligible youth has increased; the "participation ratio," a measure of the percentage of eligible persons who have received at least one screening service annually, and which must be reported to the Health Care Finance Administration, the federal agency responsible for administering the Medicaid program,[1] increased from 18 percent in 1991 to 66 percent in 1998. The utilization of dental services also increased, and the rate now is well above the national average. Texas spends more that any other state on informing and outreach programs. In 1999 it made about 4.8 million outreach contacts to class members (up from about 2 million such contacts in 1995), including about 1.8 million voice-to-voice or face-toface contacts.
The State now operates a toll-free telephone service for the benefit of class members, and the district court recognized that the State has made striking improvement in the operation of this service.[2] The State has a medical transportation program, and from 1993 to 1999 the number of rides increased from about 750,000 trips to 2.5 million trips. The State offered evidence that its Department of Health is not aware of a single eligible person who has requested services and not subsequently received them.
Nevertheless, some children are unable or, for whatever reason, fail to take full advantage of the services. The plaintiffs and district court see the answer to be oversight and enforcement by the court. Aside from the lack of judicial competence to meet this task, we hold that the court lacks jurisdiction to cure the problems or to direct the particular means and methods of this care.

BACKGROUND
This suit began in 1993 when Jeneva Frazar and Linda Frew, suing on behalf of their children, alleged that the State of Texas (the State) and the named state officials (the state defendants) were failing to provide federally mandated Medicaid benefits to the children under the Texas version of the early and periodic screening, diagnostic, and treatment services (EPSDT) program. The Medicaid program provides federal funding for medical services to the poor.[3] State participation is voluntary, but once a state joins the 534*534 Medicaid program, it is charged with administering a state plan and must meet certain federal mandates.[4] A participating state must have an EPSDT program which provides services described in the Medicaid Act.[5]
Plaintiffs complained that the Texas EPSDT program, known as the Texas Health Steps program, had failed to provide federally mandated services. They claimed that the EPSDT program did not meet various requirements of 42 U.S.C. §§ 1396a(a) and 1396d(r), federal regulations, and provisions of the State Medicaid Manual. Specifically, plaintiffs claimed that the EPSDT program (1) did not have policies or procedures to assure that class members receive health, dental, vision, and hearing screens, (2) did not meet annual participation goals set by the Secretary of Health and Human Services, (3) did not effectively inform eligible persons of the availability of EPSDT services, (4) did not employ policies and procedures to provide or arrange for other necessary measures to correct or ameliorate physical and mental conditions discovered by the screening services, (5) did not provide case management services to all EPSDT recipients as needed, and (6) did not provide services uniformly in all political subdivisions of the State.
Plaintiffs sought injunctive relief under 42 U.S.C. § 1983 and requested class certification. In 1994 the district court certified the case as a class action. According to the district court the class consists of over 1.5 million Texas youth.[6]
The parties proceeded to conduct settlement negotiations, and agreed to a consent decree. The record indicates that this proposed consent decree was reached after the district court ordered the parties to pursue a settlement.[7] The district court conducted a fairness hearing on the proposed 535*535 settlement, seeFED.R.CIV.P. 23(e), and in February 1996 approved and entered the consent decree.
"A consent decree is akin to a contract yet also functions as an enforceable judicial order."[8] The consent decree in the pending case is a lengthy document and orders the state defendants to implement many highly detailed and specific procedures relating to the EPSDT program.[9] It contemplates continuing oversight of the agreement by the district court. It states in paragraph 6 that "the parties agree and the Court orders" the state defendants to implement the changes and procedures to the EPSDT program set out in the decree, and provides in paragraph 303 that if the state defendants fail to comply with the terms and intent of the decree, the plaintiffs "may request relief from this Court." In paragraphs 306 and 307, the state defendants are required, "[f]or the duration of this Decree," to submit "monitoring reports" four times a year to the court. The reports must include a chart which identifies "each paragraph of this Decree that obliges Defendants to act and each required action. The chart will further state the status of each activity." The decree places no limit on its duration.

A. Appeal No. 00-41112
On November 10, 1998, plaintiffs filed a "Motion to Enforce Consent Decree," alleging that the state defendants had not complied with numerous paragraphs of the consent decree.[10] The state defendants 536*536 objected to the court's jurisdiction to grant relief under 42 U.S.C. § 1983 and because of the Eleventh Amendment.
The district court conducted an evidentiary hearing, and, on August 14, 2000, entered a lengthy memorandum opinion. The court held that numerous provisions of the consent decree had been violated and that the consent decree was enforceable. By a separate order entered August 14, 2000, which the court characterized as its initial "order of enforcement," it directed defendants to mail to the court and opposing counsel, within 60 days, "proposed corrective action plans to remedy each violation of the consent decree detailed in Part One of this court's Memorandum Opinion." The plaintiffs were then given 30 days to respond to defendants' proposed corrective action plans.
In appeal No. 00-41112, the state defendants appealed the August 14, 2000 order.[11] On October 18, 2000, the Fifth Circuit stayed the order during the pendency of this appeal.
B. Appeal No. 01-40667
After the state defendants noticed their appeal in No. 00-41112, plaintiffs filed in the district court a motion for leave to file a supplemental complaint (motion to supplement). The proposed supplemental complaint sought to add claims that dental services to the class were not available "at least to the extent that such care and services are available to the general population in the geographic area" under 42 U.S.C. § 1396a(a)(30)(A), and that dental services were not being provided "with reasonable promptness" under 42 U.S.C. § 1396a(a)(8).
The district court granted the motion to supplement. The state defendants then filed a motion to dismiss the supplemental complaint, arguing that the district court had no jurisdiction to grant the motion to supplement because of the pendency of the appeal to the Fifth Circuit. On May 17, 2001, the district court denied the motion to dismiss. In appeal No. 01-40667, the state defendants appeal the order denying the motion to dismiss.
We have consolidated appeal Nos. 00-41112 and 01-40667 for disposition herein.
DISCUSSION
A. Appeal No. 00-41112
In the first appeal, the state defendants essentially make three arguments. They argue that the plaintiffs did not establish violations of federal rights which entitle them to relief under § 1983. They argue second that the State is immune from suit under the Eleventh Amendment. They lastly argue that the district court misinterpreted the consent decree and expanded the scope of the decree beyond its 537*537 terms and the agreement of the

parties. We do not reach the last issue, and address the first two below, after first satisfying ourselves of our jurisdiction.
1. Appellate Jurisdiction
The district court's memorandum opinion and the accompanying "order of enforcement" are unusual documents. The district court found that certain provisions of the consent decree had been violated and that these provisions were enforceable, but did not take the next step of specifically ordering enforcement of the consent decree — an order that would amount to affirmative injunctive relief to the plaintiff class — other than directing the defendants to submit corrective action plans.
We nevertheless conclude that we have appellate jurisdiction to review the orders under 28 U.S.C. § 1292(a)(1) and the collateral order doctrine. Section 1292(a)(1) provides appellate jurisdiction over "[i]nterlocutory orders of the district courts ... granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions...."
The district court held that the consent decree was enforceable under § 1983, and in so doing rejected arguments that its enforcement would violate the Eleventh Amendment. We hold that the ruling below was an order "refusing to dissolve or modify" an injunction under § 1292(a)(1). Further, insofar as the state defendants argued that enforcement of the consent decree ran afoul of the Eleventh Amendment, the collateral order doctrine allows immediate appellate review of an order denying a claim of Eleventh Amendment immunity.[12]
2. Enforceability of Consent Decree under § 1983 and the Eleventh Amendment
The district court, while often making reference to statutory requirements and the consistency of the consent decree with the Medicaid Act,[13] did not consider it necessary to determine whether an alleged violation of the consent decree would constitute, in the absence of the decree, a statutory violation of the Medicaid Act remediable under § 1983. On the contrary, it held that "[i]n enforcing the consent decree, the court is bound solely by its language," and that "an interpretation of the decree must be based strictly on the language of the decree, and not on the legal requirements of the Medicaid Act, except to the extent that those requirements are clearly imported by the language of the decree."[14] This was error.
While § 1983 is usually invoked in cases where a plaintiff is claiming a constitutional violation, by its terms it extends to both constitutional and statutory violations, since it provides a remedy to those who suffer a "deprivation of any rights, privileges, or immunities secured by the Constitution 538*538 and laws" of the United States. Stating a claim under § 1983 requires a plaintiff to "allege a violation of rights secured by the Constitution or laws of the United States."[15] Section 1983 does not itself create any substantive rights; it only provides a remedy for the violation of a substantive federal right conferred elsewhere.[16]

Proof of a violation of a federal statute, by itself, does not entitle a plaintiff to relief under § 1983. Instead, in Blessing v. Freestone,[17] the Court explained that to obtain relief under § 1983, "a plaintiff must assert the violation of a federal right,not merely a violation of federal law."[18] Whether a statutory violation amounts to a violation of a statutory right actionable under § 1983 depends on three factors recognized in Blessing:
First, Congress must have intended that the provision in question benefit the plaintiff. Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so vague and amorphous that its enforcement would strain judicial competence. Third, the statute must unambiguously impose a binding obligation on the States. In other words, the provision giving rise to the asserted right must be couched in mandatory, rather than precatory, terms.[19]
Employing this test, the Court in Blessing held that 42 U.S.C. § 609(a)(8), a provision of Title IV-D of the Social Security Act authorizing the Secretary of Health and Human Services to reduce payments to a state that does not "substantially comply" with Title IV-D, did not give rise to individual rights actionable under § 1983.[20]
In Wilder v. Virginia Hospital Ass'n,[21] the Supreme Court held that the Boren Amendment to the Medicaid Act,[22] which required reimbursement according to rates that a state finds "are reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities," was enforceable by health care providers under § 1983.[23] In making this determination the Court set out the same three factors described in Blessingabove.[24]
In Evergreen Presbyterian Ministries Inc. v. Hood,[25] we applied the Blessingfactors and held that one portion of one Medicaid provision created a federal right enforceable by Medicaid recipients, but not Medicaid providers, under § 1983. We held that the portion of 42 U.S.C. § 1396a(a)(30)(A) relating to equal access gave recipients a federal right of action,[26] 539*539 but that the district court had abused its discretion in holding that the plaintiff recipients had shown a substantial likelihood of success in proving a violation of this provision entitling them to preliminary injunctive relief.[27]
Applying the Blessing factors to the pending case, there is no doubt that under the first factor the Medicaid program generally is intended to benefit qualifying recipients such as members of the plaintiff class. The Medicaid Act is, however, a large and complex statute, and whether plaintiffs seeking to enforce a federal right under the Medicaid Act can meet this requirement depends on which statutory provision or provisions they rely. In Evergreen, we further explained that receipt of an indirect benefit under the statutory provision in issue "is not sufficient to support a claim that [plaintiffs] are its intended beneficiaries."[28]
Similarly, moving to the second prong of the Blessing test, while some of the provisions of the Medicaid Act are not so vague and amorphous that enforcement would strain judicial competence, plaintiffs' claims can succeed only if predicated on those provisions.
Under the third Blessing factor, the Medicaid statute does impose some binding obligations on the states. With respect to the EPSDT program at issue in the pending case, 42 U.S.C. §

1396a(a) provides that state Medicaid plans "must" meet the federal mandates set out in that statute, including the requirements for EPSDT programs set out in § 1396a(a)(43). We have explained that once states choose to participate in Medicaid, they "are required to provide certain minimum mandatory services," including EPSDT services.[29] Again, however, we are not prepared to hold that every provision of the Medicaid Act which might be relevant to plaintiffs' claims imposes a binding obligation on the states.
In addition to the three factors described above, Blessing goes on to state:
Even if a plaintiff demonstrates that a federal statute creates an individual right, there is only a rebuttable presumption that the right is enforceable under § 1983. Because our inquiry focuses on congressional intent, dismissal is proper if Congress specifically foreclosed a remedy under § 1983. Congress may do so expressly, by forbidding recourse to § 1983 in the statute itself, or impliedly, by creating a comprehensive enforcement scheme that is incompatible with individual enforcement under § 1983.[30]
Under this last part of the Blessing analysis, Congress did not expressly foreclose resort to § 1983, or establish a comprehensive remedial scheme intended to supplant § 1983. While the Secretary of Health and Human Services is authorized to cut off federal funding to a State that fails to comply with the Medicaid statute,[31] there is no comprehensive enforcement scheme that would foreclose § 1983 relief under Blessing.[32]
540*540 It is clear that a violation of every provision of the Medicaid Act does not become actionable under § 1983 simply because some aspects of the Act meet the requirements of Blessing and related authority. Blessing itself cautioned against such a holding, since it found that the Social Security legislation at issue was a "multifaceted statutory scheme" containing many provisions which "do not fit our traditional three criteria for identifying statutory rights."[33] While the courts in Wilder and Evergreen held that violations of particular provisions of the Medicaid Act were actionable by certain plaintiffs under § 1983, it does not follow that every section of the Medicaid Act that might be relevant to plaintiffs' claims will support a § 1983 claim. In Blessing, the Court reasoned that a remand was warranted to allow the district court to construe the claims "in the first instance, in order to determine exactly what rights, considered in their most concrete, specific form, respondents are asserting. Only by manageably breaking down the complaint into specific allegations can the District Court proceed to determine whether any specific claim asserts an individual federal right."[34]
The district court's authority to enforce the consent decree is further limited by the Eleventh Amendment. This suit was brought against state officials in their official capacities, seeking injunctive relief under § 1983 and the authority of Ex Parte Young[35] and related authority.
A fundamental rule of federal jurisdiction, of which the Eleventh Amendment is an exemplification, is that the judicial power of the federal courts granted by the Constitution does not extend to suits by private parties against the states.[36] In order to accommodate both the supremacy of federal law and the Eleventh Amendment, Ex Parte Young allows a private suit against state officials to enjoin state conduct that violates federal law.[37] "[T]he Young doctrine rests on the need to promote the vindication of federal rights."[38] It "has not been provided an expansive interpretation."[39]

We addressed the enforceability of a consent decree in the face of Eleventh Amendment immunity in Lelsz v. Kavanagh.[40] In that case the state defendants appealed a district court order purporting to enforce a consent decree by ordering the State to furlough a certain number of mentally ill patients in the State's care.[41]We stated that the relief ordered, "in effect, requires state officials to comply with state law."[42] We held that the district court was without jurisdiction to enforce the consent decree.[43]
541*541 The plaintiffs in Lelsz argued that the consent decree was enforceable under Local Number 93, International Ass'n of Firefighters v. City of Cleveland,[44] where the Supreme Court held that "a federal court is not necessarily barred from entering a consent decree merely because the decree provides broader relief than the court could have awarded after a trial."[45] We rejected this argument, reasoning that if the court had no jurisdiction, Firefighters did not apply.[46] We further explained that Firefighters
addressed the entry of a consent decree and held that the parties' agreement could result in a decree whose terms would exceed the court's remedial authority under a governing statute. It does not enlarge the court's latitude to issue its own, different order enforcing or modifying the decree, for in that case we presume the court must fall back on its inherent jurisdiction.... .... [T]he right/remedy distinction urged by appellees inevitably collides with the principles of federalism and comity which animate the Eleventh Amendment.... Therefore, the only legitimate basis for federal court intervention, consistent with the Eleventh Amendment is the vindication of federal rights. If a federal court remedy unfounded in federal law intrudes into the governance of matters otherwise presided over by the states, no federal right has been vindicated.[47]
In Saahir v. Estelle,[48] we also addressed the enforceability of a consent decree. In that case, the district court had entered a consent decree approving a settlement between the plaintiff inmate and the state defendants which allowed the plaintiff to order tapes.[49] The plaintiff filed a motion for contempt when some of his tapes were confiscated.[50] We recognized that in Lelsz we had held " that the district court lacked jurisdiction to enforce a consent decree against the State to the extent that the relief ordered in the decree was based on state law ... because the only legitimate basis for federal court intervention consistent with the Eleventh Amendment was the vindication of federal rights."[51] We held that enforcing the consent decree to allow the plaintiff to keep non-religious tapes was not required under state law, and further held that
enforcing the provision would not be required by any federal or constitutional law, as we fail to discern any First Amendment protections except as to the religious tapes. Because "the only legitimate basis for federal court intervention, consistent with the Eleventh Amendment is the vindication of federal rights," Lelsz, 807 F.2d at 1252, the federal courts have no jurisdiction to enforce the provision as it relates to the non-religious tapes.[52]
Underlying our reasoning in Lelsz and Saahir is the jurisdictional nature of the Eleventh Amendment. Eleventh Amendment immunity is in "the nature of 542*542 a jurisdictional bar."[53] Regardless of what the parties agreed to in the consent decree, "the Eleventh Amendment is jurisdictional in the sense that it is a limitation on the federal court's judicial

power."[54] The Eleventh Amendment "is a specific constitutional bar against hearing even federal claims that otherwise would be within the jurisdiction of the federal courts."[55]
We recognized in Lelsz[56] and Saahir[57] that a federal court "must fall back on its inherent jurisdiction" when it issues an order enforcing a consent decree. For our purposes, the essential holding of Lelsz and Saahir is that a consent decree like the one entered by the district court is not enforceable against the State or its officials except to vindicate a federal right granted in the federal Constitution or a federal statute, since "the consent decree does not enlarge the courts' jurisdiction."[58] Blessing sets out the factors used in deciding whether a statutory violation amounts to a violation of a "federal right" actionable under § 1983.
The district court held that "the Firefighters test will be applied to the decree provisions sought to be enforced by plaintiffs."[59] In Firefighters the Supreme Court upheld a consent decree that, according to the petitioner, granted relief that was unavailable under the statute in issue. The Court, without reaching the issue of statutory construction, concluded that "a federal court is not necessarily barred from entering a consent decree merely because the decree provides broader relief than the court could have awarded after a trial."[60] In the pending case, the district court, under its interpretation of the "Firefighters test," erroneously held that
to sustain federal court jurisdiction to approve a consent decree against state officials, the remedies in the decree must only serve to: 1) resolve a dispute within the court's subject matter jurisdiction, 2) come within the general scope of the case made by the pleadings, and 3) further the objectives of the law upon which the complaint was based.[61]
Although the district court engaged at some length in a generalized discussion of the Blessing factors,[62] it is clear to us that the district court did not conduct a particularized Blessing analysis as to each alleged violation of the consent decree. For example, rather than deciding whether a statutory violation took place and applying the Blessing factors, the court, in concluding that the training provisions of the consent decree were enforceable, agreed with the state defendants that training "is not a requirement of federal law."[63] It nevertheless found under the "Firefighters test" that the training provisions "served to resolve this dispute, and they come within the general scope of the case made by the pleadings," and that training "clearly furthers the objectives of the EPSDT statute." 543*543 [64] The court made the same findings in concluding that the tollfree line provisions of the decree were enforceable, although agreeing with the state defendants that "no such lines are required by federal law or regulation."[65] Instead of determining whether each alleged violation of the consent decree was a statutory violation actionable under Blessing, the court held that "an interpretation of the decree must be based strictly on the language of the decree, and not on the legal requirements of the Medicaid Act, except to the extent that those requirements are clearly imported by the language of the decree."[66]
Firefighters is a consent decree case but is not an Eleventh Amendment case,[67]and does not therefore address the deference federal courts must show for the Eleventh Amendment when called upon to enjoin state officials under Ex Parte Young. "Eleventh Amendment immunity represents a real limitation on a federal court's federal-question

jurisdiction."[68] Moreover, we expressly distinguished Firefighters in both Lelsz and Saahir, reasoning that (1) Firefighters does not help the plaintiff if the district court lacks jurisdiction as a result of the Eleventh Amendment, and (2) even if a federal court is not necessarily barred from enteringa consent decree providing broader relief than it could have awarded at trial, it must fall back on its own jurisdiction when it issues an order enforcing the decree.[69] The Eleventh Amendment limits that jurisdiction to the enforcement of federal rights.
Plaintiffs argue that Lelsz should be limited to a consent decree based only on state law. The district court, likewise, would limit Lelsz to suits to enforce only state law claims, and "declined" to apply it.[70] We do not read Lelsz so narrowly, and in any event Saahir cannot be read as limited to state-law-based consent decrees. Insofar as the district court noted authority that found the distinction we drew in Lelsz and Saahir between jurisdiction to enter and jurisdiction to enforce a consent decree "utterly indefensible" or "untenable,"[71] the district court, and we, are bound by the law of our circuit.
Before the district court can remedy a violation of a provision of the consent decree, plaintiffs must demonstrate that any such consent decree violation is also a violation of a federal right, by showing (1) a statutory violation of a specific provision of the Medicaid Act, (2) which was intended to benefit plaintiffs, (3) which is not so vague and amorphous that its enforcement would strain judicial competence, and (4) which imposes a binding obligation on the states. Lest the court run afoul of Blessing, it must not paint "with too broad a brush"[72] by failing to "separate out the particular rights it believe[s] arise from the statutory scheme."[73] The Blessing criteria can only be properly applied when 544*544 the claims are "broken down into manageable analytic bites."[74]
3. Relief Available to Plaintiffs
a. Whether a Federal Court Can Set EPSDT Performance and Participation Standards
As discussed above, plaintiffs are only entitled to injunctive relief if they can show a violation of specific statutory provision that is actionable under § 1983 because it satisfies the Blessing test. Although relief under § 1983 for a violation of EPSDT provisions may be available, perfect state compliance with these provisions is not required. While a district court should have some discretion to craft an injunction to remedy violation of the Medicaid Act, there are limits on the relief available from a federal court.
We reach this conclusion based on our understanding of congressional intent. Our goal, of course, in construing a statute is to give effect to congressional intent, and we begin this task by looking to the language of the statute itself.[75]
In the pending case, the district court did not direct that particular individuals receive EPSDT services to which they were entitled under federal law. It has instead taken upon itself the task of reworking the procedures and mechanisms whereby EPSDT services are provided to the totality of eligible participants. The court has become overseer of the State's Medicaid plan. As such, the court assumes the role of assuring that the State's plan meets

federal mandates, which in turn raises the issue of whether the plan must always, unfailingly, provide the EPSDT services described in the Medicaid Act. We think that is not required.
Congress did not intend that a court can require that a state participating in the Medicaid program must always provide every EPSDT service to every eligible person at all times. Perfect compliance with such a complex set of requirements is practically impossible, and we will not infer congressional intent that a state achieve the impossible. Furthermore, looking to § 1396a(a)(43), even though it refers in subpart (A) to providing notice to "all persons," and refers in subpart (B) to the provision of EPSDT screening services in "all cases" where such services are requested, the opening text of § 1396a(a) and § 1396a(a)(43) modify all of this language by only requiring that a state "plan" must "provide for" meeting these requirements. In § 1396a(b), Congress vested in the Secretary of Health and Human Services (Secretary) the initial responsibility for approving state plans. Section 1396a(a)(43)(D) requires that the state plan provide for reporting certain data including "the State's results in attaining the participation goals set for the State under section 1396d(r) of this title." Section 1396d(r) provides:
The Secretary shall, not later than July 1, 1990, and every 12 months thereafter, develop and set annual participation goals for each State for participation of individuals who are covered under the State plan under this subchapter in early and periodic screening, diagnostic, and treatment services.
In § 1396c, the Secretary is authorized to reduce or eliminate, in its discretion, federal funding for state plans which are not in compliance with § 1396a.
In our view, Congress has therefore spoken to the success expected of a state plan: it should meet EPSDT participation goals 545*545 set by the Secretary. Under the third prong of Blessing, these are the only participation goals which are unambiguously imposed on the states. We do not read the statute as allowing a federal district court to require a higher standard of success. Congress did not in our view create such a federal right. Furthermore, under the second prong of Blessing, allowing federal courts, which are hardly expert at the intricacies of providing volume health care services to the poor, to choose their own performance goals would in our view render the EPSDT provisions so vague and amorphous as to strain judicial competence.
Moreover, we believe that plaintiffs cannot sue under § 1983 to require a plan to meet statewide or systemwide participation or performance measures, because, under Blessing, state compliance with such standards is not an individualized right actionable under § 1983. In Blessing, the court explained:
[T]he requirement that a State operate its child support program in "substantial compliance" with Title IV-D was not intended to benefit individual children and custodial parents, and therefore it does not constitute a federal right. Far from creating an individual entitlement to services, the standard is simply a yardstick for the Secretary to measure the systemwide performance of a State's Title IV-D program. Thus, the Secretary must look to the aggregate services provided by the State, not to whether the needs of any particular person have been satisfied. A State substantially complies with Title IV-D when it provides

most mandated services (such as enforcement of support obligations) in only 75 percent of the cases reviewed during the federal audit period. 45 C.F.R. § 305.20(a)(3)(iii) (1995). States must aim to establish paternity in 90 percent of all eligible cases, but may satisfy considerably lower targets so long as their efforts are steadily improving. 42 U.S.C. § 652(g). It is clear, then, that even when a State is in "substantial compliance" with Title IV-D, any individual plaintiff might still be among the 10 or 25 percent of persons whose needs ultimately go unmet. Moreover, even upon a finding of substantial noncompliance, the Secretary can merely reduce the State's AFDC grant by up to five percent; she cannot, by force of her own authority, command the State to take any particular action or to provide any services to certain individuals. In short, the substantial compliance standard is designed simply to trigger penalty provisions that increase the frequency of audits and reduce the State's AFDC grant by a maximum of five percent. As such, it does not give rise to individual rights.[76]
An analogous situation is presented here. The statute authorizes the Secretary to set certain participation goals, and to cut federal funding if "there is a failure to substantially comply" with statutory provisions.[77] Under Blessing, a state's failure to meet such a participation goal or other systemwide performance standard does not give rise to individual rights actionable under § 1983. The fact that plaintiffs have pursued their suit as a class action is of no consequence. A class action is merely a procedural device; it does not create new substantive rights and cannot extend the subject matter jurisdiction of the district court.[78]
546*546 b. Whether the Plaintiffs Have Shown a Statutory Violation
We now proceed to decide whether consent decree violations found by the district court amount to a statutory violation of the EPSDT provisions actionable under § 1983.
Rather than focusing on the statutory requirements, the court focused on the consent decree requirements and proceeded to find numerous consent decree violations. These consent decree provisions impose standards and requirements on the State which are not required by the Medicaid statute.
Looking to statutory EPSDT provisions, the requirement of subpart 43(B) that a state plan provide screening services is limited to the provision of services "where they are requested." We agree with the state defendants that a statutory violation of this requirement cannot occur except in cases where eligible persons request screening services. The district court recognized that the evidence did not support a finding that screening services were ever denied after they were so requested, noting that "[s]everal witnesses testified that defendants are not aware of a single class member who has requested services and not subsequently received those services."[79]
Whether the state plan has met performance goals set by the Secretary is unclear from the record. Regardless of the terms of the consent decree, the district court cannot impose higher performance standards than those set by the Secretary, and cannot under § 1983 impose systemwide performance or participation standards. The court did not find specific

EPSDT statutory violations which might be actionable under § 1983, nor does any amount of sifting through the evidence allow us to make such findings. Instead the court found violations of provisions of the consent decree which are not required by the Medicaid Act.
The district court first found violations of consent decree provisions relating to outreach, including provisions that the State "effectively" inform the class about EPSDT services and conduct outreach efforts to encourage use of these services.[80] The Medicaid Act EPSDT provisions, at subpart 43(A), only require a state plan providing for "informing all [eligible persons] of the availability of [EPSDT] services." It does not expressly require "effective" conveyance of information, and does not require outreach programs that extend beyond an effort at informing eligible persons of available EPSDT services. As explained above, we read the Act to limit the success required from such efforts to meeting performance standards set by the Secretary. The district court did not find that any such standards were violated, and in any event lacks the power to impose systemwide standards under § 1983, since such standards do not give rise to individual rights. Instead, employing its understanding of the consent decree, and finding itself "bound solely by its language,"[81] the district court concluded that the State's outreach efforts fell short of its understanding of the dictates of the consent decree.
The court next considered whether the State had violated consent decree provisions concerning medical and dental checkups.[82] Insofar as the court concluded that insufficient numbers of Medicaid recipients 547*547 were receiving medical and dental checkups, the court again failed to recognize that the only participation goals mandated under the statute are those set by the Secretary, and that, under Blessing, such performance goals do not give rise to individual rights actionable under § 1983. The court was not authorized or competent to impose its own participation goals.
The district court also held that, with respect to checkups, the State had failed to report certain data as required by ¶¶ 212 and 284 of the consent decree, which require the state defendants to report the number and percent of recipients who receive all their scheduled medical and dental checkups. The Medicaid Act's EPSDT provision does not require states to provide this data. Certain other data must be reported under 42 U.S.C. § 1396a(a)(43)(D), but even as to this requirement we do not believe that it creates a federal right actionable under § 1983. Blessing held that requirements which benefit eligible individuals "only indirectly," such as requirements for a state's data processing system which "maintain the data necessary to meet federal reporting requirements," do not give rise to "individualized rights" actionable under § 1983.[83] Reporting requirements, likewise, do not give rise to individualized rights.
The district court also discussed, with respect to dental checkups, evidence of a shortage of dentists. However, Blessing makes clear that staffing mandates, even where such mandates have a statutory basis, are not enforceable under § 1983, since they do not give rise to individual rights, and because enforcing an undefined standard of "sufficient" staffing would strain judicial competence.[84]
The district court next found that the State had violated provisions of the consent decree concerning corrective action plans.[85] The consent decree has provisions requiring the State to report participation by class members in medical and dental checkups by county or

cluster of counties, and to develop corrective action plans for "lagging" counties with relatively low participation rates. The Medicaid Act does not impose such reporting requirements and corrective action plans, and for the reasons discussed above, such reporting and systemwide corrective action mandates, even if found in the statute, would not give rise to individuals rights enforceable under § 1983. And again, the district court has no power to create its own performance or participation standards for "lagging" counties.
The court next turned to alleged violations of consent decree provisions concerning the receipt of EPSDT services through managed care providers.[86]Without belaboring the complex facts presented concerning these provisions, the court discussed evidence that the State's data was flawed, that participation rates for class members in managed care was lower than the rates for other class members, and that the level of care for managed care class members was inadequate. The court did not find a specific violation of a statutory managed care requirement, assuming that one exists. We agree with the state defendants that there is no basis in federal law for heightened or additional benefits to class members receiving care through managed care providers. As discussed above, the State's failure if any to provide reports or data under the consent decree 548*548cannot amount to a violation of individual rights actionable under § 1983. Insofar as the court found that participation rates were lower in managed care, the court cannot impose its own participation rates for managed care patients.
The court separately found violations of a consent decree provision concerning accelerated managed care services to migrant farm workers. Again, the court did not rely on a statutory provision of the Medicaid Act requiring such special services. The court also found a violation of ¶ 194 of the consent decree, requiring "appropriate training" of health care providers in the managed care system. Such training is not mandated by statute, as the district court noted,[87] and is no more actionable under § 1983 than the "sufficient staff" mandate whose enforcement via a § 1983 action was foreclosed in Blessing, as discussed above.
The district court next considered toll-free line requirements set out in ¶ 247 of the consent decree,[88] and found that the State had violated requirements that recipients receive "prompt service" from an operator who is "knowledgeable, helpful, and polite." As the district court acknowledged, "no such lines are required by federal law or regulation."[89] Even if there were such statutory requirements, a toll-free line system would be akin to the data processing system which the Court in Blessing held did not give rise to individualized rights actionable under § 1983.
The district court next turned to consent decree provisions relating to case workers who assist class members in arranging for the treatment they need.[90] The court did not find a statutory violation actionable under § 1983, but instead focused on its interpretation of the consent decree. To the extent that the district court found that participation levels by EPSDT recipients or requirements for adequate staffing and training of case managers had not been met, we again do not believe that such failures can support a § 1983 violation. The same can be said for the last alleged violations of the consent decree considered by the district court, namely the alleged failure to report certain data relating to outcome measures,[91] and the alleged failure to provide training for health care providers.[92]

In short, so far as we can tell from this record, plaintiffs have not established any violations of the EPSDT provisions of the Medicaid statute which are actionable under § 1983 and the Ex Parte Young exception to the Eleventh Amendment.
4. Other Issues
a. Waiver of Sovereign Immunity
After they filed their appellees' brief, plaintiffs filed two FED. R.APP. P. 28(j) letters, referring the court to our decision in Watson v. Texas[93] and the Supreme Court's decision in Lapides v. Board of Regents of the University System of Georgia.[94]For the first time,[95] plaintiffs argued 549*549 in these letters that the State waived its Eleventh Amendment immunity by voluntarily entering into the consent decree. The state defendants argue that there was no waiver because the consent decree was negotiated by the office of the Attorney General, and only the Texas Legislature can waive the State's sovereign immunity. We need not decide this thorny question.[96]
Instead, we hold that under well-established law for determining a waiver of Eleventh Amendment immunity, the State did not do so in this case. "The Supreme Court has made it clear that we may find a waiver of a state's Eleventh Amendment immunity in only the most exacting circumstances."[97] The states's consent to suit must be "unequivocally expressed."[98]
The State has not unequivocally waived its Eleventh Amendment immunity. The consent decree expressly states in paragraph 301 that "Defendants do not concede liability." The state defendants repeatedly raised in the district court an Eleventh Amendment defense to the enforcement of the decree, contending that the entry of the consent decree did not expand the district court's jurisdiction, and that a violation of the consent decree, by itself, was "of no consequence." It made numerous other statements to the district court in pleadings and in open court indicating that it did not intend to waive its Eleventh Amendment immunity, arguing for example that "[i]f the court determines that no federal right has been violated it lacks jurisdiction to impose a remedy even 550*550 if it determines that Defendants have violated a term of the decree." The district court rejected these arguments.[99]
A critical distinction between the pending case and the cases cited in the Rule 28(j) letters — Watson and Lapides — is that in those cases the state voluntarily chose to submit itself to the jurisdiction of the federal court. In Watson, the State of Texas elected to bring its tobacco action in federal court. In Lapides, the state defendants removed the case to federal court.[100] These cases and others establish that a state can waive its Eleventh Amendment immunity by voluntarily invoking the federal court's jurisdiction,[101] but in the pending case the State did not do so; the state officials were sued as defendants. The State has not waived its Eleventh Amendment immunity.
b. Westside Mothers

The state defendants argue in their reply brief that we should accept arguments embraced by a district court in Westside Mothers v. Haveman.[102] That case concerned a challenge to Michigan's EPSDT program. The district court held that the Medicaid statute, as legislation enacted pursuant to the Spending Clause,[103]was not the supreme law of the land under the Supremacy Clause[104] and therefore the Ex Parte Young exception to Eleventh Amendment state immunity was inapplicable.[105]
Suffice it to say that we decline to follow this ruling. We have not recognized a "Spending Clause exception to the Ex Parte Young exception" to the Eleventh Amendment. The district court's decision in Westside Mothers on this issue has now been reversed by the Sixth Circuit,[106] which noted that the Spending Clause analysis of the district court was inconsistent with a number of Supreme Court cases.[107] We agree with the Sixth Circuit that "laws validly passed by Congress under its spending powers are supreme law of the land."[108] For purposes of the Supremacy Clause and Ex Parte Young, the mandates set out in Medicaid statute are more than contractual; they are federal law.
The district court in Westside Mothers concluded that the Ex Parte Youngexception 551*551 to Eleventh Amendment immunity was unavailable for several reasons besides the Spending Clause rationale. These reasons were also rejected on appeal, and we likewise find none of them persuasive.[109]
B. Appeal No. 01-40667
While we have jurisdiction over the appeal because of the Eleventh Amendment issue, which is an issue that can be raised at any point because it is jurisdictional, there is no need to say more about the limits of the district court's jurisdiction. Plaintiffs are objecting to the shortage of transportation for class members to obtain dental services and to the rates of payment set by the Texas Legislature. Unless plaintiffs can prove that the right to dental services is being denied by the defendants, the court cannot act. We therefore vacate the order addressing the motion to dismiss.
CONCLUSION
The orders of the district court in both appeals are VACATED and the case is REMANDED for whatever proceedings that may be consistent with this opinion.
[1] See Hope Medical Group for Women v. Edwards, 63 F.3d 418, 421 (5th Cir.1995).
[2] Frew v. Gilbert, 109 F.Supp.2d 579, 645 n. 136 (E.D.Tex.2000).
[3] See Wilder v. Va. Hosp. Ass'n, 496 U.S. 498, 502, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990).
[4] Id.
[5] Under 42 U.S.C. § 1396a(a)(43), a state Medicaid plan must provide for:
(A) informing all persons in the State who are under the age of 21 and who have been determined to be eligible for medical assistance including services described in section 1396d(a)(4)(B) of this title, of the availability of early and

periodic screening, diagnostic, and treatment services as described in section 1396d(r) of this title and the need for age-appropriate immunizations against vaccine-preventable diseases,
(B) providing or arranging for the provision of such screening services in all cases where they are requested,
(C) arranging for (directly or through referral to appropriate agencies, organizations, or individuals) corrective treatment the need for which is disclosed by such child health screening services, and
(D) reporting to the Secretary (in a uniform form and manner established by the Secretary, by age group and by basis of eligibility for medical assistance, and by not later than April 1 after the end of each fiscal year, beginning with fiscal year 1990) the following information relating to early and periodic screening, diagnostic, and treatment services provided under the plan during each fiscal year:
(i) the number of children provided child health screening services,
(ii) the number of children referred for corrective treatment (the need for which is disclosed by such child health screening services),
(iii) the number of children receiving dental services, and
(iv) the State's results in attaining the participation goals set for the State under section 1396d(r) of this title.
"Early and periodic screening, diagnostic, and treatment services" referenced in the above statutory provision is defined in 42 U.S.C. § 1396d(r) to include certain screening, vision, dental, hearing, and other services.
[6] Frew, 109 F.Supp.2d at 587.
[7] A "Joint Report Concerning the Progress of Settlement Negotiations" indicates that the district court ordered the parties to meet eight times in pursuit of a settlement.
[8] United States v. Chromalloy American Corp., 158 F.3d 345, 349 (5th Cir.1998).
[9] By way of example, the decree orders the state defendants, in administering the EPSDT program, to: use certain terms, in English and Spanish, for the services it provides to Medicaid recipients (consent decree ¶ 16); mail letters to recipients, in English and Spanish, at certain designated times and containing certain information, regarding checkups, and provide brochures, fliers, and medical identification cards to recipients (¶ 17); provide certain verbal and written information to recipients through eligibility workers, and provide training to these workers (¶¶ 20-22); provide outreach units to provide specified reports and outreach services to specified groups of recipients, such as those recipients who miss checkups (¶¶ 25-64, 96, 148); employ a simplified form for medical checkups (¶ 90); maintain updated lists of health care providers (¶ 93); provide a cost of living adjustment for medical checkups (¶¶ 9899); provide "innovative efforts to recruit all relevant professional schools to become EPSDT providers" (¶ 102); provide and facilitate training about various specified Medicaid and EPSDT subjects to professional schools and health care providers (¶¶ 104-131); adopt various procedures to promote dental care including procedures to combat baby bottle tooth decay, provide for the use of dental sealants, prepare various reports, and audit dentists (¶¶ 143174); provide training, outreach, and other services for the benefit of special groups, including farm workers, recipients receiving care from managed care organizations, teens, and neglected and abused children (¶¶ 175-212); provide information, outreach, assessments, corrective action plans, reimbursements, and new regulations in order to alleviate transportation problems (¶¶ 213-238); provide a toll-free phone assistance system that is "more hospitable and helpful to recipients than the past system," provides specified information to recipients, and is adequately staffed by well-trained personnel (¶¶ 242-47); prepare and implement a case management plan for the EPSDT program (¶¶ 264-70); implement a "statewideness" plan that increases the percent of recipients receiving checkups in those counties of the State with low checkup rates (¶¶ 271-281); agree with the plaintiffs on health outcome indicators, "arrange for studies to evaluate the health of the EPSDT population," and develop corrective action plans where goals are not met (¶¶ 294-96); and revise the State's computerized management information system (¶ 298).
[10] As detailed by the district court, the plaintiffs alleged that the defendants had violated the consent decree by failing to:

1) implement properly the outreach program and deliver required outreach reports; 2) assure that all class members receive medical and dental checkups; 3) develop and implement annual corrective action plans both for counties that lag behind the statewide average for checkups and for the state's medical transportation system; 4) operate the state's managed care system consistently with the mandates of the decree; 5) operate toll-free numbers so as to ensure that all calls are answered promptly by a knowledgeable and helpful staff member; 6) provide case management to all class members who need it, statewide; 7) develop methods to study each agreed health outcome measure; and 8) provide EPSDT training for health care providers.
Frew, 109 F.Supp.2d at 588.
[11] The parties dispute whether the notice of appeal covers only the "order of enforcement" or the memorandum opinion as well. In our view, both documents, entered simultaneously, constitute the district court's order granting the motion to enforce the consent decree and the "order" referenced in the notice of appeal.
[12] P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 147, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993).
[13] For example, the court stated that the consent decree's outreach provisions "stem from" federal requirements that states inform eligible persons of the availability of EPSDT services, Frew, 109 F.Supp.2d at 589, and that the decree's corrective action plan requirement "is supported" by statutory requirements, id. at 677. The court also considered statutory requirements in its analysis of alleged violations of consent decree provisions concerning checkups, but only because these parts of the consent decree incorporated by reference certain statutory provisions. The court believed that otherwise "the requirements of federal law would be irrelevant to this court's construal of the decree." Id. at 607.
[14] Frew, 109 F.Supp.2d at 594.
[15] Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir.1994).
[16] Olabisiomotosho v. City of Houston, 185 F.3d 521, 525 (5th Cir.1999).
[17] 520 U.S. 329, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997).
[18] Id. at 340, 117 S.Ct. 1353.
[19] Id. at 340-41, 117 S.Ct. 1353 (citations, internal quotation marks omitted).
[20] Id. at 344, 117 S.Ct. 1353.
[21] 496 U.S. 498, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990).
[22] 42 U.S.C. § 1396a(a)(13)(A) (1992) (repealed).
[23] Wilder, 496 U.S. at 512, 110 S.Ct. 2510.
[24] Id. at 509, 110 S.Ct. 2510.
[25] 235 F.3d 908 (5th Cir.2000).
[26] Id. at 924. Evergreen held that the "equal access" portion of § 1396a(a)(30)(A) — stating that a State plan must provide "such methods and procedures ... as may be necessary ... to assure that payments ... are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area" — created a right of action for recipients under § 1983, but did not address the portion of subpart 30(A) relating to quality of care. See id. at 927 n. 24.
[27] Id. at 934.

[28] Id. at 929. [29] Mitchell v. Johnston, 701 F.2d 337, 340 (5th Cir.1983). [30] Blessing, 520 U.S. at 341, 117 S.Ct. 1353 (citation, internal quotation marks omitted). [31] 42 U.S.C. § 1396c. [32] See Wilder, 496 U.S. at 522, 110 S.Ct. 2510 (holding that Medicaid Act's "administrative scheme cannot be considered sufficiently comprehensive to demonstrate a congressional intent to withdraw the private remedy of § 1983"). [33] Blessing, 520 U.S. at 344, 117 S.Ct. 1353. [34] Id. at 346, 117 S.Ct. 1353. [35] 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). [36] Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-99, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). [37] See id. at 102-03, 104 S.Ct. 900; Quern v. Jordan, 440 U.S. 332, 337, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). [38] Pennhurst, 465 U.S. at 105, 104 S.Ct. 900. [39] Id. at 102, 104 S.Ct. 900. [40] 807 F.2d 1243 (5th Cir.1987). [41] Id. at 1245. [42] Id. at 1247. [43] Id. at 1255. [44] 478 U.S. 501, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986) ("Firefighters"). [45] Id. at 525, 106 S.Ct. 3063. [46] Lelsz, 807 F.2d at 1252. [47] Id. [48] 47 F.3d 758 (5th Cir.1995). [49] Id. at 760. [50] Id. [51] Id. at 761. [52] Id. [53] Edelman v. Jordan, 415 U.S. 651, 678, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).

[54] Calderon v. Ashmus, 523 U.S. 740, 745 n. 2, 118 S.Ct. 1694, 140 L.Ed.2d 970 (1998). [55] Pennhurst, 465 U.S. at 120, 104 S.Ct. 900. [56] Lelsz, 807 F.2d at 1252. [57] Saahir, 47 F.3d at 761. [58] Id. at 762. [59] Frew, 109 F.Supp.2d at 671. [60] Firefighters, 478 U.S. at 525, 106 S.Ct. 3063. [61] Frew, 109 F.Supp.2d at 666. [62] Id. at 661-665, 672 n. 202. [63] Id. at 677. [64] Id. [65] Id. [66] Id. at 594. [67] Firefighters involved a suit against the City of Cleveland. Cities do not enjoy Eleventh Amendment immunity. Evans v. City of Bishop, 238 F.3d 586, 589 (5th Cir.2000). [68] Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 270, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997). [69] Lelsz, 807 F.2d at 1252; Saahir, 47 F.3d at 761. [70] Frew, 109 F.Supp.2d at 671. [71] Id. at 670. [72] Blessing, 520 U.S. at 342, 117 S.Ct. 1353. [73] Id. at 345, 117 S.Ct. 1353. [74] Id. at 342, 117 S.Ct. 1353. [75] Ruiz v. Estelle, 161 F.3d 814, 819 (5th Cir.1998). [76] Blessing, 520 U.S. at 343-44, 117 S.Ct. 1353. [77] 42 U.S.C. § 1396c. [78] See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). [79] Frew, 109 F.Supp.2d at 607 n. 51.

[80] Id. at 589-600.
[81] Id. at 594.
[82] Id. at 600-613.
[83] Blessing, 520 U.S. at 344-45, 117 S.Ct. 1353.
[84] Id. at 345, 117 S.Ct. 1353.
[85] Frew, 109 F.Supp.2d at 613-18.
[86] Id. at 618-37.
[87] Id. at 677 ("Training, defendants correctly argue, is not a requirement of federal law.").
[88] Id. at 637-46.
[89] Id. at 677.
[90] Id. at 646-54.
[91] Id. at 654-58.
[92] Id. at 658-60.
[93] 261 F.3d 436 (5th Cir.2001).
[94] ___ U.S. ___, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002).
[95] Although Watson and Lapides were decided after plaintiffs submitted their brief and were the proper subject of Rule 28(j) letters, we question whether plaintiffs should have raised the issue of waiver of Eleventh Amendment immunity at an earlier stage in this litigation. Waiver of Eleventh Amendment immunity is certainly not a new concept. Generally, we do not review issues raised for the first time on appeal unless they involve purely legal questions and failure to consider them would result in manifest injustice. Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). Further, "[i]n the absence of manifest injustice, this court will not consider arguments belatedly raised after appellees have filed their brief." Najarro v. First Fed. Sav. & Loan Ass'n of Nacogdoches, 918 F.2d 513, 516 (5th Cir.1990). In these circumstances, however, we consider this waiver issue. There are no disputed facts relevant to this issue and it presents a question of law. Further, as discussed above, Eleventh Amendment immunity is jurisdictional in nature, and the court of appeals has a continuing duty to consider, sua sponte if necessary, the basis of the district court's jurisdiction. Solsona v. Warden, F.C.I., 821 F.2d 1129, 1132 n. 2 (5th Cir. 1987).
[96] In Watson, in which we held that a dispute fell within the State's waiver of sovereign immunity contained in a settlement agreement, we stated: "We presume that the attorney general for the State of Texas had the power to sign the Agreement on behalf of Texas and had the power to waive the state's sovereign immunity." Watson, 261 F.3d at 441 n. 11. However, the Texas Supreme Court has recently stated that it "has long recognized that it is the Legislature's sole province to waive or abrogate sovereign immunity." Texas Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 853 (Tex. 2002) (internal quotation marks omitted). See also Dep't of Pub. Safety v. Great Southwest Warehouses, Inc., 352 S.W.2d 493, 495 (Tex.Civ.App.-Austin 1961, writ ref'd n.r.e.) ("[T]he Attorney General was without legal power or authority to waive the right of the State to immunity from the suit...."). While we have stated that a waiver of Eleventh Amendment immunity is decided under federal standards, see In re AlliedSignal, Inc., 919 F.2d 277, 281 n. 4 (5th Cir.1990), we have also recognized that, in determining whether a state official or entity has authority to waive Eleventh Amendment immunity, we look to state law, see Magnolia Venture Capital Corp. v. Prudential Sec., Inc., 151 F.3d 439, 444 (5th Cir.1998). To further complicate matters, we have recognized that "a state may waive its common law sovereign immunity under state law, without waiving its Eleventh Amendment immunity under federal law." Allied Signal, 919 F.2d at 281 n. 4.

[97] Magnolia Venture Capital Corp., 151 F.3d at 443.
[98] Id. at 443 (quoting Pennhurst, 465 U.S. at 99, 104 S.Ct. 900).
[99] Frew, 109 F.Supp.2d at 665-671.
[100] Lapides, 122 S.Ct. at 1642.
[101] See id. at 1644 (recognizing "general legal principle" that a state waives its Eleventh Amendment immunity when it voluntarily invokes the federal court's jurisdiction); College Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 675-76, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999)("Generally, we will find a waiver ... if the State voluntarily invokes our jurisdiction....").
[102] 133 F.Supp.2d 549 (E.D.Mich.2001), aff'd in part, rev'd in part, 289 F.3d 852 (6th Cir. 2002). Westside Mothers was decided after the state defendants had filed its initial brief in the pending appeal. We granted leave to the state defendants to file an additional brief on the issues raised in Westside Mothers, and also granted leave the United States to file an amicus curiae brief out of time on the Westside Mothers issues. In addition, much of the state defendants' briefing in appeal No. 01-40667, addressed below, is inspired by the district court's novel analysis in Westside Mothers.
[103] U.S. CONST. art. I, § 8, cl. 1.
[104] U.S. CONST. art. VI, cl. 2.
[105] Westside Mothers, 133 F.Supp.2d at 561-62.
[106] Westside Mothers v. Haveman, 289 F.3d 852 (6th Cir.2002).
[107] Id. at 859-60 (citing Townsend v. Swank, 404 U.S. 282, 92 S.Ct. 502, 30 L.Ed.2d 448 (1971), and other cases).
[108] Id. at 860.
[109] Briefly, the district court in Westside Mothers held that Ex Parte Young was inapplicable to enforce Medicaid legislation for the additional reasons that (1) the state is the real party in interest, (2) the court lacks authority to enjoin state officers performing discretionary, as opposed to ministerial, functions, and (3) where the statutory scheme provides a remedy, the court may not substitute an alternative form of relief under § 1983. Westside Mothers, 133 F.Supp.2d at 562-75.
As to the first reason, Ex Parte Young cannot be swept aside because the state is the real party in interest. The raison d'etre for Ex Parte Young and its continuing significance in our constitutional scheme is that it provides an exception to the Eleventh Amendment allowing injunctive relief against state officials where the state itself is for all practical purposes the real party in interest, in order to accommodate the Supremacy Clause. In all such suits state officials are sued in their official capacities, although the state is the real party in interest. The Supreme Court has observed that "a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. As such, it is no different from a suit against the State itself." Will v. Mich. Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (citation omitted). Hence, Ex Parte Young is often described as employing a legal "fiction." E.g., Okpalobi v. Foster, 244 F.3d 405, 411 (5th Cir.2001) (en banc); Brennan v. Stewart, 834 F.2d 1248, 1252 (5th Cir.1988).
As to the second reason — that the court cannot compel state officials to perform discretionary functions — we again note that states participating in the Medicaid program must meet federal statutory mandates. For purposes of Ex Parte Young injunctive relief, states and their agents have no "discretion" to violate federal law. Hence, Young itself recognized that "[a]n injunction to prevent [a state officer] from doing that which he has no legal right to do is not an interference with the discretion of an officer." Ex Parte Young, 209 U.S. at 159, 28 S.Ct. 441.
The third reason — that the statutory scheme provides a remedy — is based on the district court's interpretation of Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). In that case the Court

found that, in light of "the carefully crafted and intricate remedial scheme," id. at 73-74, 116 S.Ct. 1114, set forth in the statute in question, Congress did not intend to create an Ex Parte Young remedy for violation of the statute. In contrast to the statutory scheme at issue in Seminole Tribe, see id. at 49-50, 116 S.Ct. 1114, the Medicaid Act does not have an intricate remedial scheme regulating noncompliance by a state. The only statutory remedial sanction available under the Medicaid statute is that the Secretary of Health of Human Services can cut funding to the state. 42 U.S.C. § 1396c.

 
 540 U.S. 431 (2004)
FREW, ON BEHALF OF HER DAUGHTER, FREW, ET AL. v.
HAWKINS, COMMISSIONER, TEXAS HEALTH AND HUMAN SERVICES COMMISSION, ET AL.
No. 02-628.
Supreme Court of United States.
Argued October 7, 2003. Decided January 14, 2004. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.
432*432 KENNEDY, J., delivered the opinion for a unanimous Court.
Susan Finkelstein Zinn argued the cause for petitioners. With her on the briefs were Edward B. Cloutman III and Jane Kathryn Swanson.
Irving L. Gornstein argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Olson, Assistant Attorney General McCallum, Deputy Solicitor General Kneedler, Mark B. Stern, and Alisa B. Klein.
433*433 Rafael Edward Cruz, Solicitor General of Texas, argued the cause for respondents. With him on the briefs were Greg Abbott, Attorney General, Barry R. McBee, First Assistant Attorney General, Jeffrey S. Boyd, Deputy Attorney General, and Melanie P. Sarwal, Assistant Solicitor General.[*]
JUSTICE KENNEDY delivered the opinion of the Court.
In this case we consider whether the Eleventh Amendment bars enforcement of a federal consent decree entered into by state officials.
I
Medicaid is a cooperative federal-state program that provides federal funding for state medical services to the poor. See Wilder v. Virginia Hospital Assn., 496 U.S. 498, 502 (1990). State participation is voluntary; but once a State elects to join the program, it must administer a state plan that meets federal requirements. One requirement is that every participating State must have an Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) program. See 79 Stat. 343, as amended, 42 U.S.C. §§ 1396a(a)(43), 1396d(r). EPSDT programs provide health care services to 434*434 children to reduce lifelong vulnerability to illness or disease. The EPSDT provisions of the

Medicaid statute require participating States to provide various medical services to eligible children, and to provide notice of the services. See ibid.
The petitioners here are mothers of children eligible for EPSDT services in Texas. In 1993 they filed a civil action pursuant to Rev. Stat. § 1979, 42 U.S.C. § 1983, seeking injunctive relief against the Texas Department of Health and the Texas Health and Human Services Commission, as well as various officials at these agencies charged with implementing the Texas EPSDT program. The named officials included the commissioners of the two agencies, the Texas State Medicaid Director, and certain employees at the Texas Department of Health. The individuals were sued in their official capacities and were represented throughout the litigation by the office of the Texas attorney general.
The petitioners alleged that the Texas program did not satisfy the requirements of federal law. They asserted that the Texas program did not ensure eligible children would receive health, dental, vision, and hearing screens; failed to meet annual participation goals; and gave eligible recipients inadequate notice of available services. The petitioners also claimed the program lacked proper case management and corrective procedures and did not provide uniform services throughout Texas.
After the suit was filed, the two Texas state agencies named in the suit moved to dismiss the claims against them on Eleventh Amendment grounds. The petitioners did not object, and in 1994 the District Court dismissed the state agencies as parties. The state officials remained in the suit, and the District Court certified a class consisting of children in Texas entitled to EPSDT services, a class of more than 1 million persons. Following extensive settlement negotiations, the petitioners and the state officials agreed to resolve the suit by entering into a consent decree. The District 435*435 Court conducted a fairness hearing, approved the consent decree, and entered it in 1996.
Judicial enforcement of the 1996 consent decree is the subject of the present dispute. The decree is a detailed document about 80 pages long that orders a comprehensive plan for implementing the federal statute. In contrast with the brief and general mandate in the statute itself, the consent decree requires the state officials to implement many specific procedures. An example illustrates the nature of the difference. The EPSDT statute requires States to "provid[e] or arrang[e] for the provision of . . . screening services in all cases where they are requested," and also to arrange for "corrective treatment" in such cases. 42 U.S.C. §§ 1396a(a)(43)(B), (C). The consent decree implements the provision in part by directing the Texas Department of Health to staff and maintain toll-free telephone numbers for eligible recipients who seek assistance in scheduling and arranging appointments. Consent Decree ¶¶ 241-242, Lodging of Petitioners 63-64. According to the decree, the advisors at the toll-free numbers must furnish the name, address, and telephone numbers of one or more health care providers in the appropriate specialty in a convenient location, and they also must assist with transportation arrangements to and from appointments. Id., ¶¶ 243-245, Lodging of Petitioners 64. The advisers must inform recipients enrolled in managed care health plans that they are free to choose a primary care physician upon enrollment. Id., ¶ 244, Lodging of Petitioners 64.
Two years after the consent decree was entered, the petitioners filed a motion to enforce it in the District Court. The state officials, it was alleged, had not complied with the decree in various respects. The officials denied the allegations and maintained that the Eleventh Amendment rendered the decree unenforceable even if they were in noncompliance. After an evidentiary hearing, the District Court issued a detailed opinion concluding that certain provisions 436*436 of the consent decree had been violated. Frew v. Gilbert, 109 F. Supp. 2d 579 (ED Tex. 2000). The District Court rejected the Eleventh Amendment argument, id., at 660-678, and directed the parties to submit proposals outlining possible remedies for the violations.

The state officials filed an interlocutory appeal, and the Court of Appeals for the Fifth Circuit reversed. The Court of Appeals held that the Eleventh Amendment prevented enforcement of the decree unless the violation of the consent decree was also a statutory violation of the Medicaid Act that imposed a clear and binding obligation on the State. Frazar v. Gilbert, 300 F. 3d 530, 543 (2002). The Court of Appeals assessed the violations identified by the District Court and concluded that none provided a valid basis for enforcement. Regardless of whether the EPSDT program complied with the detailed consent decree, the Court of Appeals reasoned, the program was good enough to comply with the general mandates of federal law. The Court of Appeals concluded that because the petitioners had not established a violation of federal law, the District Court lacked jurisdiction to remedy the consent decree violations. Id., at 546-551.
Other Circuits have reached a contrary result, holding that the Eleventh Amendment does not bar enforcement of consent decrees in like circumstances. See, e. g., Kozlowski v. Coughlin, 871 F.2d 241, 244 (CA2 1989); Wisconsin Hospital Assn. v. Reivitz, 820 F. 2d 863, 868 (CA7 1987). We granted certiorari to resolve the conflict among the Courts of Appeals. 538 U.S. 905 (2003).
II
The petitioners advance two reasons why the consent decree can be enforced without violating the Eleventh Amendment. First, they argue the State waived its Eleventh Amendment immunity in the course of litigation. Second, they contend that enforcement is permitted under the principles of Ex parte Young, 209 U.S. 123 (1908). We agree that 437*437 the decree is enforceable under Ex parte Young, and so we do not address the waiver argument.
This case involves the intersection of two areas of federal law: the reach of the Eleventh Amendment and the rules governing consent decrees. The Eleventh Amendment confirms the sovereign status of the States by shielding them from suits by individuals absent their consent. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996). To ensure the enforcement of federal law, however, the Eleventh Amendment permits suits for prospective injunctive relief against state officials acting in violation of federal law. Ex parte Young, supra. This standard allows courts to order prospective relief, see Edelmanv. Jordan, 415 U.S. 651 (1974); Milliken v. Bradley, 433 U.S. 267 (1977), as well as measures ancillary to appropriate prospective relief, Green v. Mansour, 474 U.S. 64, 71-73 (1985). Federal courts may not award retrospective relief, for instance, money damages or its equivalent, if the State invokes its immunity. Edelman, supra, at 668.
Consent decrees have elements of both contracts and judicial decrees. Firefighters v. Cleveland, 478 U.S. 501, 519 (1986). A consent decree "embodies an agreement of the parties" and is also "an agreement that the parties desire and expect will be reflected in, and be enforceable as, a judicial decree that is subject to the rules generally applicable to other judgments and decrees." Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 378 (1992). Consent decrees entered in federal court must be directed to protecting federal interests. In Firefighters, we observed that a federal consent decree must spring from, and serve to resolve, a dispute within the court's subject-matter jurisdiction; must come within the general scope of the case made by the pleadings; and must further the objectives of the law upon which the complaint was based. 478 U.S., at 525.
This brings us to the intersection of the principles governing consent decrees and the Eleventh Amendment. As we 438*438 understand their argument, the state officials do not contend that the terms of the decree were impermissible under Ex parte Young. Nor do they contend that the consent decree failed to comply with Firefighters. The officials challenge only the enforcement of the decree,

not its entry. They argue that the Eleventh Amendment narrows the circumstances in which courts can enforce federal consent decrees involving state officials.
The theory advanced by the state officials is similar to the one accepted by the Court of Appeals. The officials reason that Ex parte Young creates a narrow exception to the general rule of Eleventh Amendment immunity from suit. Consent decrees involving state representatives threaten to broaden this exception, they contend, because decrees allow state officials to bind state governments to significantly more commitments than what federal law requires. Brief for Respondents 9-22. Permitting the enforcement of a broad consent decree would give courts jurisdiction over not just federal law, but also everything else that officials agreed to when they entered into the consent decree. A State in full compliance with federal law could remain subject to federal-court oversight through a course of judicial proceedings brought to enforce the consent decree. To avoid circumventing Eleventh Amendment protections, the officials argue, a federal court should not enforce a consent decree arising from an Ex parte Young suit unless the court first identifies, at the enforcement stage, a violation of federal law such as the EPSDT statute itself. Brief for Respondents 9-22.
We disagree with this view of the Eleventh Amendment. The decree is a federal-court order that springs from a federal dispute and furthers the objectives of federal law. See Firefighters, supra, at 525. The decree states that it creates "a mandatory, enforceable obligation." Consent Decree ¶ 302, Lodging of Petitioners 76. In light of the State's assertion of its Eleventh Amendment immunity, the state 439*439 officials lacked the authority to agree to remedies beyond the scope of Ex parte Young absent a waiver, as the petitioners concede. Tr. of Oral Arg. 12. We can assume, moreover, that the state officials could not enter into a consent decree failing to satisfy the general requirements of consent decrees outlined in Firefighters. The petitioners' motion to enforce, however, sought enforcement of a remedy consistent with Ex parte Young and Firefighters, a remedy the state officials themselves had accepted when they asked the District Court to approve the decree. Enforcing the agreement does not violate the Eleventh Amendment.
The theory advanced by the state officials relies heavily on our decision in Pennhurst State School and Hospital v. Halderman, 465 U.S. 89 (1984). Pennhurst is distinguishable. In that case we found the rationale of Ex parte Young inapplicable to suits brought against state officials alleging violations of state law. 465 U. S., at 106. Jurisdiction was improper because "[a] federal court's grant of relief against state officials on the basis of state law, whether prospective or retroactive, does not vindicate the supreme authority of federal law." Ibid. Here, by contrast, the order to be enforced is a federal decree entered to implement a federal statute. The decree does implement the Medicaid statute in a highly detailed way, requiring the state officials to take some steps that the statute does not specifically require. The same could be said, however, of any effort to implement the general EPSDT statute in a particular way. The decree reflects a choice among various ways that a State could implement the Medicaid Act. As a result, enforcing the decree vindicates an agreement that the state officials reached to comply with federal law.
Hutto v. Finney, 437 U.S. 678 (1978), is instructive on this point. In Finney, the Court upheld a District Court's award of attorney's fees designed to encourage state compliance with an existing court order. State prisoners had sued state prison officials claiming that the conditions of their confinement 440*440 violated the Eighth Amendment, and the District Court had ordered the officials to improve prison conditions. When the officials refused to comply in good faith with the order, the District Court awarded attorney's fees to the prisoners' lawyers to be paid from the state treasury. Id., at 685. The state officials objected, arguing that the relief was not valid under the Eleventh Amendment because it exceeded the scope of Ex parte Young. The Court rejected this argument:

"In exercising their prospective powers under Ex parte Young and Edelmanv. Jordan, federal courts are not reduced to issuing injunctions against state officers and hoping for compliance. Once issued, an injunction may be enforced. . . . If a state agency refuses to adhere to a court order, a financial penalty may be the most effective means of insuring compliance. The principles of federalism that inform Eleventh Amendment doctrine surely do not require federal courts to enforce their decrees only by sending high state officials to jail. The less intrusive power to impose a fine is properly treated as ancillary to the federal court's power to impose injunctive relief." 437 U.S., at 690691 (footnote omitted).
The award of attorney's fees "vindicated the District Court's authority over a recalcitrant litigant," the Court continued. "We see no reason to distinguish this award from any other penalty imposed to enforce a prospective injunction." Id., at 691-692.
While Finney is somewhat different from the present case in that it involved the scope of remedies for violation of a prior order rather than the antecedent question whether remedies are permitted in the first instance, a similar principle applies. Federal courts are not reduced to approving consent decrees and hoping for compliance. Once entered, a consent decree may be enforced.
441*441 III
The state officials warn that enforcement of consent decrees can undermine the sovereign interests and accountability of state governments. Brief for Respondents 23-32. The attorneys general of 19 States assert similar arguments as amici curiae. Brief for Utah et al. as Amici Curiae. The concerns they express are legitimate ones. If not limited to reasonable and necessary implementations of federal law, remedies outlined in consent decrees involving state officeholders may improperly deprive future officials of their designated legislative and executive powers. They may also lead to federal court oversight of state programs for long periods of time even absent an ongoing violation of federal law.
When a federal court has entered a consent decree under Ex parte Young, the law's primary response to these concerns has its source not in the Eleventh Amendment but in the court's equitable powers and the direction given by the Federal Rules of Civil Procedure. In particular, Rule 60(b)(5) allows a party to move for relief if "it is no longer equitable that the judgment should have prospective application." The Rule encompasses the traditional power of a court of equity to modify its decree in light of changed circumstances. In Rufo v. Inmates of Suffolk County Jail, 502 U. S. 367 (1992),the Court explored the application of the Rule to consent decrees involving institutional reform. The Court noted that district courts should apply a "flexible standard" to the modification of consent decrees when a significant change in facts or law warrants their amendment. Id., at 393. See also Philadelphia Welfare Rights Org. v. Shapp, 602 F. 2d 1114 (CA3 1979) (modifying consent decree implementing Pennsylvania's EPSDT program in light of changed circumstances).
Rufo rejected the idea that the institutional concerns of government officials were "only marginally relevant" when officials moved to amend a consent decree, and noted that 442*442 "principles of federalism and simple common sense require the [district] court to give significant weight" to the views of government officials. 502 U. S., at 392, n. 14. When a suit under Ex parte Young requires a detailed order to ensure compliance with a decree for prospective relief, and the decree in effect mandates the State, through its named officials, to administer a significant federal program, principles of federalism require that state officials with front-line responsibility for administering the program be given latitude and substantial discretion.

The federal court must exercise its equitable powers to ensure that when the objects of the decree have been attained, responsibility for discharging the State's obligations is returned promptly to the State and its officials. As public servants, the officials of the State must be presumed to have a high degree of competence in deciding how best to discharge their governmental responsibilities. A State, in the ordinary course, depends upon successor officials, both appointed and elected, to bring new insights and solutions to problems of allocating revenues and resources. The basic obligations of federal law may remain the same, but the precise manner of their discharge may not. If the State establishes reason to modify the decree, the court should make the necessary changes; where it has not done so, however, the decree should be enforced according to its terms.
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
[*] David T. Goldberg filed a brief for AARP et al. as amici curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the State of Utah et al. by Mark L. Shurtleff, Attorney General of Utah, and Alain C. Balmanno and Joni J. Jones, Assistant Attorneys General, and by the Attorneys General for their respective States as follows: Ken Salazar of Colorado, M. Jane Brady of Delaware, Mark J. Bennett of Hawaii, Lawrence Wasden of Idaho, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Michael A. Cox of Michigan, Mike Moore of Mississippi, Brian Sandoval of Nevada, Peter W. Heed of New Hampshire, Wayne Stenehjem of North Dakota, W. A. Drew Edmondson of Oklahoma, D. Michael Fisher of Pennsylvania, Lawrence E. Long of South Dakota, Jerry Kilgore of Virginia, William H. Sorrell of Vermont, Peg Lautenschlager of Wisconsin, and Pat Crank of Wyoming; and for the National Conference of State Legislatures et al. by Richard Ruda and James I. Crowley.