Frew vs. Hawkins: The Medicaid Battle Continues

Texas Medicine Logo(1)  

Law Feature - March 2007  

By Erin Prather Stafford  

Failure to conduct initial and periodic screening, lack of adequate outreach and informing services, poor case management, failure to recruit a sufficient number of dentists - these are just a few of the grievances plaintiffs listed in the Medicaid class action lawsuit against the state, known as Frew vs. Hawkins.  

In January, the case made headlines when the U.S. Supreme Court denied the Texas attorney general's request to again review the case. The 11-year-old lawsuit stems from claims that the State of Texas does not provide sufficient health care for children in the Medicaid program.

Unlike similar class action suits pending throughout the country, Frew vs. Hawkins was initially resolved when the state entered into a consent decree with plaintiffs. That decree was designed to improve children's access to and awareness of the Medicaid Early and Periodic Screening, Diagnostic, and Treatment (EPSDT) program.

EPSDT gives children on Medicaid important preventive and primary care services, as well as access to comprehensive specialty and rehabilitative services for children with chronic physical, emotional, or behavioral health conditions.

The Texas Medical Association's Ad Hoc Committee on Medicaid and Access to Care has made recommendations to both sides in the lawsuit as the district court judge ponders a corrective action plan to resolve the case. The plan addresses a wide array of issues, ranging from how best to inform Medicaid patients about the availability of EPSDT services, ensuring that a sufficient network of physicians and providers participate in EPSDT, and what actually constitutes a complete EPSDT exam.

Susan Zinn, JD, lead counsel for the plaintiffs, says the state has failed to comply with the consent decree. She and co-counsel Jane Swanson, JD, believe Texas children are not receiving the health care they need. So they took the state to court again.

"There's been a lot of focus on problems with the Medicaid eligibility system. But even after children have jumped through the hoops to qualify for Medicaid, they still can't get the health care they need. Texas is failing our children in this part of Medicaid, too," Ms. Zinn said in a press release. 

Added Ms. Swanson, "More than 1.4 million indigent Texas children didn't even get one medical checkup in 2005, which is the most recent information Texas Medicaid officials have given us. The number is even higher for basic dental care."

The state argued that it complies with federal Medicaid laws and is exempt from enforcement of the consent decree because a state cannot be sued. Although a judge ruled in favor of Ms. Zinn and Ms. Swanson, the Fifth U.S. Circuit Court of Appeals overturned that decision.

The persistent plaintiffs eventually took the case to the Supreme Court, which unanimously rejected the state's arguments in 2000.   Not only did the justices rule in favor of the plaintiffs, but they also said federal courts have authority to enforce their consent decrees, even when the defendants are state officials.

The state asked the Supreme Court to reconsider, leading to the latest ruling in January.

Immediately following the Supreme Court's decision, the district court set an April 9 hearing to order the state to comply with the ruling. The plaintiffs hope the judge will order Texas Medicaid officials to comply with the consent decree.

"We're very glad that this stage of this case is finally over with," Ms. Zinn said. "The attorney general kept making the same argument over and over, all the way up the ladder of appeals, even though more and more federal judges had already rejected the argument … all they did was delay things, which is really a shame. Children need health care when they need it - not years after futile appeals."    

In an e-mail to Texas Medicine , attorney general's office spokesperson Angela Hale blamed the plaintiffs for the delay.

"Plaintiffs have maintained this litigation against the Texas Health and Human Services Commission for more than a decade, with no end in sight. Unfortunately, the litigation continues, despite the fact that Texas today spends more money than any other state in the union on Medicaid screening outreach, and despite the fact that the evidence in this case has clearly demonstrated that every eligible child in the State of Texas who requested treatment has received medical treatment," she wrote. 


TMA Lobbies for Medicaid Reform

The Texas Medical Association is working in the current session of the Texas Legislature to reform the state's Medicaid system to reduce the number of uninsured adults and children.

The association has developed initiatives that would:

  • Support using Medicaid dollars as a financing tool to reduce the number of uninsured children and to extend private coverage for low-income parents;
  • Support implementing programs now in the pipeline because they hold significant promise for improving care and lowering costs for Medicaid's most complex patients;
  • Test promising new initiatives such as personal health accounts to improve care, promote personal responsibility, and constrain costs;
  • Evaluate the effectiveness of existing Medicaid reforms to determine which strategies are working and which should be continued, amended, or terminated; and
  • Support efforts to initiate and maintain local public-private collaborations designed to extend affordable health care or coverage for the uninsured.

"With nearly half of all uninsured children estimated to be eligible but not enrolled in Medicaid or CHIP, Texas should follow the lead of other states that have launched programs to educate families about the availability of affordable health insurance for their children through these programs" one of TMA's legislative issue briefs says. "When Texas kids are healthy, everyone wins."

In January, Gov. Rick Perry proposed a plan he said would change the "one-size-fits-all" approach to providing benefits to Medicaid recipients. One of his ideas is to push more Texans into private health care plans.

"We agree that improving Medicaid will require the state to examine closely the diverse groups of people the program serves - and their diverse needs," TMA President-Elect William W. Hinchey, MD, said in response. "We strongly believe that Medicaid spending, all health care spending, must be more efficient, more cost-effective, and more accountable to serving the needs of the people of Texas. A physician medical home is the most cost-effective way to deliver care. We must ensure that the Texas health care dollar is actually spent on health care - not elsewhere."

For more information on TMA's legislative efforts on a wide range of issues, click  here


March 2007 Texas Medicine Contents
Texas Medicine Main Page