Florida Medicaid Ruling
Florida Medicaid Ruling
CA SE N O.05-23037-ClV-JORDAN/O 'SULLIVA N
FL O R ID A PED IA TR IC SO C IET Y/T H E
FLOR IDA CHA PTER OF TH E AM ERICA N
ACADEM Y O F PEDIATRICS;FLO RIDA
A C A D EM Y O F PED IA TR IC D EN TISTR Y ,
IN C .,et al.,
Plaintiffs,
VS.
LIZ D U D E K ,et.aI.,
D efendants.
A M EN D ED FIN D IN G S O F FA C T A N D C O N C LU SIO N S O F LA W
and injunctive relief from Florida officials responsible for the state's M edicaid
program . Plaintiffs contend that the Florida M edicaid program has failed to
provide Florida children w ith access to m edicaland dentalcare in accordance w ith
the EPSD T, R easonable Prom ptness, Equal A ccess, or O utreach requirem ents
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under Title X1X of the SocialSecurity Act,to the extent that such services are
federal M edicaid statutes, arguing those statutes provide them a private right of
tothatofotherchildren inthesamegeographicalarea(Count1l)(sEqualAccess'');
(3) 42 U.S.C.j 1396u-2(b)(5) regarding l-IM os (Count111);and (4)42 U.S.C.
j 1396a(a)(43) requiring that the states conduct outreach programs to inform
individuals determ ined to be eligible for M edicaid of the availability of services
2For shorthand, 1w illsom etim es referto the agenciesasdefendants in this Order.
3 tttchildren w ith specialhealth care needs'm eans those children younger than 21 years
of age who have chronic physical,developm ental,behavioral,or em otionalconditions and w ho
also require health care and related services of a type or am ountbeyond thatw hich is generally
requiredbychildren.''Fla.Stat.j391.021(2)(2009).
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and to insure such patients requesting those services are able to receive them
(Count1V)(outreach'').
D efendants filed a m otion to dism iss all four counts, arguing that the
M edicaid A ct did notprovide privately enforceable rights perm itting such actions
noenforceablerightexistsunderj 1396u-2(b)(5).D.E.40.
Follow ing discovery, the issue of class certification w as referred to U .S.
M agistrate Judge M cA liley for a report and recom m endation. O n July 30,2008,
M agistrate Judge M cA liley recom m ended that certain additional plaintiffs be
perm itted to intervene. I affirm ed thatruling as to K .V .,S.C.,K .S.,and S.B .only.
D .E.268. M agistrate Judge M cA liley,follow ing briefng and argum ent,found the
requirem entsofRule 23 satisfied in an extensive reportand recom m endation. D .E.
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the M edicaid A ct. Plaintiffs allege that a num ber of structural, tinancial, and
adm inistrative barriers result in children notreceiving the access to care to w hich
they are entitled to underfederallaw . Plaintiffs categorize these violations into six
categories:
First, plaintiffs subm it that Florida's M edicaid reim bursem ent stnlcture is
fundam entally inconsistent w ith the Federal M edicaid A ct. Florida determ ines
reim bursem ent,plaintiffs argue,by a ttconversion ratio''w ith respectto the setting
these children w ere often itswitched''to a differentprim ary provider than the one
4A the partieshave agreed,
s
anadditionalhearingontheissueofinjunctivereliefwillbe
held ata laterdate.
4
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whom the parenthad initially selected. Plaintiffs contend these issues affecttens
ofthousands ofM edicaid children each year,who are denied theirrightsto EPSD T
services and theirrightto receive such care w ith reasonable prom ptness.
Third, plaintiffs argue the children are not receiving the prim ary care to
w hich they w ere entitled under the EPSD T Requirem ents,as evidenced by the fact
that hundreds of thousands ofchildren do notreceive any preventative health care
according to the official EPSD T reports subm itted to the federal governm ent.
M oreover, the percentage of children receiving certain aspects of preventative
health care, such as lead blood screens, w as extrem ely low . Plaintiffs point to
Fourth, plaintiffs m aintain that M edicaid children face long delays and
unreasonable obstacles in receiving access to specialist care in m any areas of the
both prim ary care physicians and specialists with respect to the difficulties and
delays in nding specialiststo treatchildren on M edicaid.
Fifth,plaintiffs contend that Florida fails to provide children w ith access to
dental care, w hich is one of the EPSD T Requirem ents under the M edicaid A ct.
They point to ofscial govem m ent reports show ing Florida w as ranked the w orst
state in the country w ith only 21% of children on M edicaid receiving dentalcare.
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Plaintiffs argue that low reim bursem ent rates for Florida dentists w ho accept
M edicaid children w ere the principal reason for this failure. A s a result, they
argued,m any dentists refused to treatM edicaid children.
D efendants argue that the nam ed plaintiffs lack standing because they did
not have a problem receiving needed care and face no reasonable prospect of a
yvere able to receive it. Indeed,defendants argue, plaintiffs failed to prove any
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D efendants assert that plaintiffs failed to prove they w ere harm ed by low
providerreim bursem ents. They contend thatA H CA 'S priorLB RS are notadequate
inaccurate. They argue there is no reliable proofto show the availability ofcare in
a geographic region. They fault plaintiffs for failing to provide a quantitative
analysis or benchm arks againstw hich the courtcould com pare access to M edicaid
w ith access to private insurance. lnstead,they argue thatplaintiffs'proof consists
of isolated anecdotesthatfailto supporttheirclaim s.
claim ing that the record show s abundant outreach by the state and its partners.
They argue im provem ents have occurred, such as a recent increase in dental
standingg.j'' Vega v.T-M obile USA Inc.,564 F.3d 1256,1265 (11th Cir.2009)
(citationsomitted).ForaplaintifftohaveArticlell1standing:
(1)ghemustprovethathehasjsuffered an injury in fact-an invasion
ofalegally protected interestwhich is(a)concreteand particularized
and (b)actualorimminent,notconjecturalorhypothetical;(2)there
must be a causal connection between the injury and the conduct
complained of-the injury hasto be fairly traceable to the challenged
action ofthe defendant,and notthe resultofthe independentaction of
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490,498(1975).
Plaintiffs bear the burden ofestablishing the elem ents of standing. Lujan v.
attrial.''1d.(citation omitted).
W here a plaintiff seeks only prospective relief, as is the case here,he m ust
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failure to satisfy their statutory obligations under the M edicaid A ct. Specifically,
as w ill be discussed m ore fully below in the findings of fact, defendants have
reim bursem ent rates so low that doctors refuse to participate in the M edicaid
program .
(governmentj...engagesy''id.at1338,the injurpin-factrequirementofstanding
is satisfed.
Plaintiffs have also dem onstrated the second elem ent of standingcausation. To prove causation,plaintiffs m ust show that their prospective harm s
are fairly traceable''to defendants'non-com pliance w ith the M edicaid A ct. See
9
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andplaintiffs'injuries.
The Florida legislature designated A H CA Ccas the single state agency
authorized to m ake paym ents form edicalassistance and related services under''the
j 1396a(a)(30)(A).
D CF is responsible ttfor M edicaid eligibility determ inations, including,but
not lim ited to, policy, rules, and the agreem ent w ith the Social Security
A dm inistration for M edicaid eligibility determ inations for Supplem ental Security
j 391.026(1), (3), (9); and (3) dsreimburse healthcare providers for services
10
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of their rights to certain services under the M edicaid program. See id. at j
1396a(a)(43)(A).
The factualrecord indicates thatplaintiffs'injuries are fairly traceable to
defendants'failure to satisfy these statutory obligations. 1 find that severalofthe
nam ed plaintiffs experienced delay in receiving, or com plete denial of, m edical
services because defendants did not provide continuous eligibility as required by
law . D efendants have also en-oneously ttsw itched''som e of the nam ed plaintiffs
from one M edicaid plan to another w ithout the patient's know ledge or consent,
w hich also caused delaysor denials in the provisioning ofhealthcare.
I further find that plaintiffs experienced insufficient access to m edicalcare
because A H CA 'S and D O H 's reim bursem ent rates are so low that they fail to
enlist enough providers so that care and services are available . ..at least to the
extent that (theyj are available''to those with private insurers. 42 U.S.C. j
1396a(a)(30)(A). M oreover,1 find thatdefendants did notinform plaintiffs of
servicesthatare available to them ,w hich resulted in severalofthe nam ed plaintiffs
being unable to take advantage ofm edicalservices to w hich they are entitled. The
evidence presented at trial makes clear that plaintiffs' injuries are directly
attributable to defendants'unlaw fulconduct.
W ith respectto redressability,tthere is ordinarily little question''thatw here
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barriers to enrollm ent and receipt of service, such as in the Florida A CCESS
application orlow reim bursem entrates.
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respect to C ount IV against D C F. l find that S.M .no longer has standing to
S.M . w as dssw itched'' from one M edicaid program to another w ithout his
m other's know ledge or consent. Because his doctor w as not a participant in the
new M edicaid plan, S.M . w as unable to obtain his EPSD T screening, a critical
appointm ent,at 18 m onths of age. S.M .'S screening w as delayed for tw o m onths
w hile his m other attem pted to switch him back to his initial plan. This delay
exposed S.M .to health risks.
O n another occasion, S.M .w as unable to take a lead blood screening test
because the laboratory w ould take three hours to reach by bus,round trip. S.M .'S
m other w as unaw are that she w as entitled to free transportation services through
IV againstA H CA only.
L .C .has standing to assert Count11 against A C H A . L.C .'S psychologist
recom m ended that he receive intense psychological services, including w eekly
play therapy,because of his severe behavioral issues. H is psychiatrist w ould not
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provide the therapy because she did not acceptM edicaid. L.C .'S m other took him
11 and IV against A H CA . A fter discussing the advantages of Stayw ellw ith one
of its representatives,K .K .'S m other,A .D .,voluntarily sw itched K .K to Stayw ell's
insurance plan. Subsequently,A .D .took K .K .to the em ergency room because his
ear started to bleed. The em ergency room advised A .D .to take K .K .to his thencurrent EN T specialist,D r.John D onaldson,the follow ing day so that K .K 's ear
could be drained. Upon m aking an appointm entw ith the ENT specialist,A .D .was
infonned thatD r.D onaldson did notacceptStayw ell's insurance.
A .D .contacted Stayw ellto inquire about an EN T specialist in her area and
w as referred to a Stayw ell-affiliated doctor in Sarasota, w hich is located
approxim ately tw o hours aw ay from her hom e near FortM eyers. D r.D onaldson
agreed to see K .K .laterthatday,atthe risk ofnotreceiving paym ent. Stayw elldid
not have a suffcient am ount of EN T specialists on its panel in the m etropolitan
area of Fort M yers. T his is a result of A H C A 'S failure to set suffk ient
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W ithout A .D .'S know ledge or consent, how ever, M edicaid assigned Stayw ell as
D CF'S failure to properly assign K .K .to the correct M edicaid plan resulted in an
unreasonable delay in receiving the appropriate prescription. K .K is likely to
N .G .because he had severe pain in his ear. ltw as im perative forN .G.to receive
treatm ent im m ediately due to his com prom ised im m une system ,w hich m ade him
15
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patients suffering from the sam e sym ptom s are able to see an EN T either the
sam e day or atthe Iatest,the follow ing day.
In m y prior ruling on J.S., I focused on w hether she had standing to
bring Count 11 against A H CA . l tind again that she does. The evidence,
sum m arized below in Part V l, Section E, show s that children on M edicaid
throughout Florida have difficulty accessing specialty care, and often m ust w ait
considerable periods or travel signifcant distances to obtain such care. J.S.'S
experiences w ith M edicaid are no different.
Three tim es in the last 10 years or so,J.S.has broken her ankle or wrist,
gone to the em ergency room ,and been directed to see an orthopedist for follow -up
care. In all three instances, she had diffculty, in varying degrees, locating an
sharply curtail their participation because of A H C A 'S low reim bursem ent
rates.
16
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the cause for these delays in the receipt of m edical care. As long as N .V .is
eligible for M edicaid, there is a substantial likelihood that he w ill not receive
tim ely care.
1 also find thatJ.W .has standing to bring Count1 againstA H CA and D CF.5
J.W .'S oncologist recom m ended a CT scan for the purpose of detecting w hether
J.W .'S cancer had spread from his leg to his neck. A H CA and D CF sw itched
J.W .'S prim ary care physician, w hich prolonged J.W .'S ability to obtain
authorization for the C T scan.
I previously found that T.G .had standing to assert Counts l and 11 against
Novem ber of 201l. Sce D.E. 1062. Since filing this m otion,the parties have filed a Joint
stipulation of facts stating thatJ.W .w as released from the high risk facility on April 16,2012
and wassubsequently approved forM edicaid.SeeD .E.1190.Thus,J.W .'Sclaim sarenotm oot.
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despite the insurance issues. Sim ilarly,laterthatday C.R.had to pay $70 out-ofpocket because the pharm acy w as unable to process her M edicaid num ber. C .R .,
how ever,was reim bursed the nextbusiness day once the problem was resolved.
N .A .did notexperience any delay ordenialofservicesbecause he w as sw itched to
another provider. A ccordingly,he does not have standing and is dism issed as a
* L.C.hasstanding to assertCount11againstAH CA ;
@ K .K has standing to assert C ount I against D CF and A H C A
and C ounts 11 and IV againstA H C A ;
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trial's conclusion in 2012,anyw here betw een 1.5 m illion and 1.7 m illion children
w ere enrolled in the M edicaid program throughout Florida. A ccordingly, nothing
evidence regarding the severallegalquestions that are com m on to the entire class
and thatM agistrate Judge M cA liley identified in her reportand recom m endation.
These include w hether defendants are com plying w ith their obligations under the
federalM edicaid Actto provide eligible recipientsw ith reasonably prom ptmedical
care and services, equal access to such care and services, and outreach and
inform ation aboutcare and services. Vega, 564 F .3d at 1268 (Commonality is
6 I do not see the need to address the standing of the Florida Pediatric Society, the Florida
Chapter of the Am erican Academ y of Pediatricians, or the Florida Academy of Pediatric
Dentistry atthis tim e.1,how ever,reserve the rightto do so in the future in a revised order.
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Steiman ex. rel.Prado v.Bush,221 F.3d 1266, 1279 n.14 (11th Cir.2000)
(citations omitted)(d$The typicality requirementcan tttbe satisfied even ifsome
factualdifferences exist betw een the claim s of the nam ed representatives and the
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declaratoryrelief(wouldbejappropriaterespectingtheclassasawhole.''SeeFed.
R.Civ.P.23(b)(2).
V .A PPLIC A B LE L EG A L STA N D A R D S
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iearly and periodic screening, diagnostic, and treatment services gas defined
42U.S.C.j 1396a(a)(30)(A)(thetEqualAccess''provision).
Fourth,a state plan mustcontain provisions(dgijnforming allpersonsin the
State w ho are underthe age of2 1 and w ho have been determ ined to be eligible for
m edical assistance . .
42 U.S.C. j
jj 1396a(a)(8)and (a)(10)
a.j 1396a(a)(8)
C ount I of plaintiffs' com plaint alleges a violation of the reasonable
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metthe third factor ofthe Blessing test,the Eleventh Circuitnoted that ttltjhe
languageofthestatute gwasjundoubtedly castin mandatory ratherthan precatory
termsl,l'' and that ta state's receipt of federal M edicaid funds is expressly
conditioned onitscompliancewith provisionsofj 1396a.''1d.at718.
D oe is of course binding precedent. W hether D oe has been so eroded by
Gonzaga thatit should be overruled is for the Eleventh Circuitto decide.
M yjob,
asa districtjudge,isto follow Doe atthistime. See U S.Valladares,544 F.3d
1257,1264-65(11th Cir.2008);UnitedStatesv.Baxter,323 Fed.App'x 830,831
(11th Cir.2009)(EtBecauseM oore (apriorEleventh Circuitdecisionjhasnotbeen
overruled by thisC ourtsitting en banc orthe Suprem e C ourt,the districtcourtw as
ofindividuals those who are M edicaid-eligible. 1d. itltdoes not dspe4k only in
term s ofinstitutionalpolicy and practice,'nordoesithave an taggregate focus.'''
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determ ination. See Sabree,367 F.3d at 190;S.D . cx rc/.D ickson v.H ood, 391
at 603. The Third Circuit similarly concluded that it (isq diffcult, if not
im possible, as a linguistic m atter, to distinguish the im port of the relevant
language CA State Plan m ustprovide' from the iN o person shall' language of
TitlesVland1Xg,q''Sabree,367F.3dat190.lnotedearlier,TitlesV1andIX were
cited by the Suprem e Court in G onzaga as exam ples of statutes tw ith an
26
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Atissueiswhetherj 1396a(a)(30)(A)confersaprivaterightofaction.
requiredtoconferaprivatelyenforceablefederalright,becausethetenntmedicalassistance''is
ttvagueand amorphous,''Idlsagree.Itlnd theterm to be suffciently defined in j 1396d(a)to
satisfy the second prong ofBlessing. SeeDoe,136 F.3d at711 (upholding a claim thatthe
Florida DepartmentofHealth & Rehabilitative Services violated j 1396a (a)(8)by failing to
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beincurred by ey cientl
y andeconomicall
y operatedfacilitiesinorder
to provide care and services in conform ity w ith applicable State and
Federal law s, regulations, and quality and safety standards and to
assure thatindividuals eligible form edicalassistance have reasonable
access ...to inpatienthospitalservices ofadequate quality.
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Circuithasnotruled otherwise.SeeAgnostinl'v.Felton,521U.S.203,237(1997)
(reaffirming thatilijfaprecedentofthisCourthasdirectapplication in a case,yet
appearsto reston reasonsrejected in some other line ofdecisions,the Courtof
A ppeals should follow the case w hich directly controls,leaving to this Courtthe
thegeneralpopulation inthegeographictzrctlg.l
j 1396a(a)(30(A)(emphasisadded).
G iven the strikingly sim ilar trights-creating'' language that m im ics the test
oftheBorenAmendment,1concludethatj 1396a(a)(30)(A)imposesamandateon
the states. The Boren A m endm entrequired states to create program sthatprovided
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538 (3d Cir. 2002) (en banc) (Alito, J.) (holding that j 1396a(a)(30)(A)'s
provisions for quality of care and adequate access were ltdraftgedj
with an
unmistakable focuson (M edicaid beneficiariesq''). Granted,health care providers
are explicitly m entioned within the text of the Boren Am endment, while plan
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sim ilarly expressed incredulity that Gonzaga preserved W ilder and found that
G onzaga tltightened the first requirem ent'' of finding a private right to enforce
statutory violations and therefore no reliefw as available. See M andy R.,464 F.3d
at 1147. Long Term Care and M andy R.failto give due w eight to W ilder,a case
thatG onzaga expressly recognized rem ained good law .
1find the reasoning ofthe Seventh and Eighth Circuits m ore persuasive. See
considered w hether any subsequent pertinent and binding decisions have called
textoftheBorenAmendmentwassufficienttoconferarightsubjecttoprivateenforcement.
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summary judgment that the Supreme Court's decision in Wilder compels the
conclusion that the statute is individually enforceable. W hile applying the
binding.
D efendants directm y attention to the Suprem e C ourt's decision in D ouglas
SupremeCourttoconsiderwhetherj 1396a(a)(30)(A)wasenforceablethroughthe
Suprem acy C lause,in the w ake ofthe N inth C ircuit's holding in Sanchez thatthe
statute was not enforceable through j 1983. See Douglas, 132 S.Ct.at 1207.
G iven intervening events in the case after certiorari had been granted,the C ourt
declined to consider the Suprem acy Clause question and instead rem anded the case
back to the circuitcourtto consider w hether the case should be broughtunder the
com ply w ith federal1aw because they w ere insufficientto enlistenough providers
to ensure adequate care and services- tracked plaintiffs'claim s here,the Suprem e
C ourtin D ouglas w as not asked to- nor did it---decide the legal question of the
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TheEleventhCircuit'srecentdecision in Martesv.ChiefExecutiveOf/zccof
South Broward HospitalDistrict, 683 F.3d 1323 (2012),which addressed the
individual enforceability of another M edicaid statute also does not alter m y
concluded that the text and structure of j 1396a(a)(25)(C) did not speak to
undertheStateplanwithresyecttoaserviceforwhichathirdpartyisliablefor
palment,the person furnishlng the service may notseek to collectfrom the
indlvidual (or any financially responsible relative or representative of that
individual)paymentofan amountforthatservice(i)ifthetotaloftheamountof
the liabilities of third parties for that service is at least equal to the am ount
42U.S.C.j1396a(a)(25)(C).
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The sam e, how ever, cannot be said of the text and structure of
benetk iaries of the M edicaid program so that these individuals have the
opportunity to receive m edicalcare in a m anner sim ilarto their counterparts in the
private insurance sector. The essence of this statutory provision is m aking sure
10 D efendants raise several other argum ents in their discussion of the individual
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contain an objectivestandard.1disagree.
Post-Gonzaga, the Eleventh Circuit intem reted the first Blessing factor,
w hich requires that Congress m ust have intended the relevant statute to benest
Education from
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requirem ent- that the protected rightcannot be ttso vague or am orphous thatits
statute imposes only a generalized duty when the tmeaning of gthe directive
wouldj obviously vary with the circumstances of each individual case'' and
com pliance w ith the directive w as largely leftup to the state. See Suter v.ArtistM ,
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The fndings offactw hich follow are taken from director circum stantial
evidence presented attrialorfrom inferences draw n from such evidence.
A.
T he N am ed Plaintiffs
1. S.51.
1.
A ugust 2006. PX 583-2 at 7-1+ 02294-98,TPF02305-07. S.B .,Il s.M .,s m other,
11s B voluntarily sentS.M .to live w ith his father in A ugustof2011so she could devote
moretime and energy looking forajob and an apartmentwhereshe could live with herthree
m inor children. S.B .on 12/06/2011 Rough Tr.at 90, 135. Later,S.M .and S.B.'S tw o other
minor children were rem oved from her legal custody as the result of a court order and
proceedingsinitiated by DCF. Id at89-90,135. W hile S.M .is living with his fatherabout25
minutesoutsideTallahassee,S.B.continuesto seeherson every week.Id at136. Those weekly
visitsarenotsupervised by DCF.Id at154.
Even though S.B .currently does nothave legalcustody of S.M .,S.B.is stilla properand
appropriate next friend. A n individual m ay sel've as a snext friend''of a m inor as long as the
37
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chose Dr. Simm ons, who practices with the Tallahassee Pediatric Foundation
3. In response to the letter,S.B .called the M edicaid num berto inform the
agency that S.M .'S benefits had been improperly canceled. She requested that
S.M .'S M edicaid be reinstated. S.B . on 2/11/2010 Final Tr. at 1786:18-22.
M edicaid retroactively restored S.M .'S eligibility, m aking it appear as if his
linext friend's'' interests are not adverse to the minor and the next friend'' is sufficiently
dedicated to them inor's interest.Gonzalez cx rel.Gonzalezv.Reno,86 F.Supp.2d 1167,1185
(S.D.Fla.2000)affdsubnom.Gonzalezv.Reno,212F.3d1338(11thCir.2000).A jarentmay
sue asa tnextfriend''even ifhe orshe haslostcustody to the state and his or herrlghtshave
been terminated provided the parentisadvancing the child'sinterests,and nothisown. M iracle
father,T.M .,isalso willing to serve as S.M 'snextfriend. See PX 788 (Declaration ofT.M .,
filed on 01/31/2012,D.E.1121). Hisson hasbeen living with him sinceAugust,and T.M .'S
onlyinterestinthislitigationistoprotecthisson.Id at!! 1-8.IfforanyreasonS.B.isnotable
to continue as nextfriend forS.M .,lfind thatT.M .isan appropriate,substitute nextfriend for
S.M .
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S.M had been assigned ortsw itched''to a M edicaid l4M O ,an insurance plan that
S.M .'S doctor did notaccept. S.B .on 2/11/2010 FinalTr.at 1788:11-1789:14;St.
Petery on 12/10/2009 Final Tr. at 1389:17 - 1391: 25; see also PX 658 at
Sim m ons000002.
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letter,which gave her the option to choose a M edicaid plan but S.M .was autoassigned to a M edicaid 11M 0 when S.B .allegedly failed to m ake a choice. PX
10. S.M .w as not sw itched back to M edipass untilM arch 31,2008. S.B .
on 2/11/2010 Final Tr. at 1790:23-25, 1804:24
'2D efendants suggestthatS.B.did notreceive the letterbecause she failed to update her
m ailing addresswith AHCA. SeeDefs.Corrected Proposed FindingsofFactand Conclusionsof
Law at 74. S.B .testitied thatshe m oved severaltim es during the firsttw o years of S.B.'S life.
S.B.on 2/11/2010 Final Tr.at 1783:12 - 178427. S.B.adm itted that she updated her address
with TPF butneverinform ed AHCA . During thattim e,S.B.received correspondencefrom TPF
ather grandmother's address.S.B.on 2/11/2010 FinalTr.at 1784:15-18. Her grandmother
would contactherifshe received any m ail. S.B.on 2/11/2010 FinalTr.at1784:19-21. Despite
thistestimony,Istilltlnd thatdefendants are responsible forthe switch. First,defendantshave
not subm itted proof that the selection letter w as actually sent to S.B . Second,S.B .w ould not
have had to apply forreinstatementor selecta M edicaid plan ifM edicaid did notim properly
tenninate S.M .'S benefhs shortof the required 12 m onths of continuous eligibility. S.B.on
2/11/2010 FinalTr.at 1821:23 - 1822:7.
40
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lead blood screening test. S.B.was not able to get her son's blood tested for
exposure to lead because it w ould have taken her an hour and a half each w ay,
traveling by bus,to getto the laboratory's location. S.B .on 2/11/2010 FinalTr.at
1793:17 - 1794:11,1798:19 - 1799:17;S.B .on 12/06/201l R ough Tr.at 111,143,
146. She also m issed appointm ents w ith D r.Sim m ons because of transportation
problem s. 1d.at 145-46. She did notknow she w as entitled to free transportation
through M edicaid. 1d.at 144-46.
2. L .C .
12.
and had seizures later in life as w ell. PX 655 at Tridas Center 000008;PX 65l at
Peace R iver 000016. L .C .m oved into S.C .'S hom e as a foster child w hen he w as
tw o years,eight m onths old,and S.C .later adopted him . S.C .on 1/11/2010 Final
Tr.at 1319:21 - 1320:1;1322:1-3. A s a child adopted through foster care,L.C.is
Craig, who had an extensive history working w ith children w ith attachm ent
disorder. S.C .on 1/11/2010 FinalTr.at 1332:19 - 1333:10. M s.Craig,w ho does
not take M edicaid,recom m ended w eekly play therapy. PX 652 at C raig000105;
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son to PRC,the exclusive M edicaid m ental health provider in her area. 1d. at
1336:22 - 1338:12;PX 651 atPeace River 000009. Peace River,however,was
notable provide play therapy,and wasnotable to provide w eekly therapy. 1d.at
1338:13-17;1338:20 - 1341:25;PX 740 atD efendants 011707.
16. D r.R eycraftalso stated that she could not deliver w eekly therapy to
1d. D r.Reycraftdeveloped a treatm entplan offering tw ice m onthly therapy
from C hristy B ishop. 1d.at 1333,1345. B ecause herson could notgetthe care he
needed atPeace R iver,L .C .paid for herson to attend w eekly play therapy sessions
w ith M s.Craig. 1d.at 1345:18 - 1346:6. A lthough these sum s w ere ultim ately
reim bursed,M edicaid could notprovide accessto the care thatL .C .needed.
ln 2005, a developm ental pediatrician recom m ended that L.C .begin
taking certain m edications. D r.H elen H ubbard m anaged L.C .'S m edication but in
2007 was unw illing to continue m onitoring the drugs. 1d.at 1355:2 - 1357:24.
There is no evidence to supportthat D r.H ubbard's unw illingness w as related to
the fact that S.C.w as on M edicaid. S.C.returned to Peace River because she
needed a psychiatristto prescribe and m onitor L.C.'S m edications, one of which
w as D epakote. 1d. at 1357:12-15; PX 651 at Peace R iver 000053; S.C . on
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1357:19-24. PR C 'S records do not retlect that S.C. ever advised PRC that the
m atter w as urgent. Instead,PR C characterized the appointm ent as a routine visit.
PX 651 atPeace R iver 000053-000056.
18. PRC required that L.C.go through the intake process and be evaluated
by a therapistw ho w ould then determ ine w hetherL .C.needed a psychiatrist. S.C .
on 1/11/2010 FinalTr.at 1358:3-7. A s a result,PRC could not schedule L.C .for
an appointm ent for a psychiatrist for a period of tw o m onths or m ore. 1d. This
w ait w as reasonable because PRC w as not aw are of the urgency of the situation.
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4055:8-23. The representative followed A.D .to her car and convinced herthat
Stayw ellhad m ore advantages than M edipass. 1d.at 4074. O n January 1,2005,
A .D . m ade a phone call to M edicaid to change K .K .'S M edicaid plan from
M edipass to Stayw ell. 1d.at4074-4075. The change becam e effective on M arch
1,2005. D X 49 atD efendants 10106;D X 54 atD efendants 10125.
24. Less than tw o w eeks later, on M arch 9, 2005, K .K . w ent to the
ears,andnotedthatDr.John Donaldson,Dr.Liu'spartner,twgouldjseethepatient
tom orrow ...to suction outthe ear canals and evaluate the tym panic m em branes.''
K .K .w as discharged from the hospital in the early m orning hours on M arch 10,
D r.Liu. 1d. at 4059:1-13. She soon received a callback, inform ing her that the
doctor could not see K .K .because he w as on Stayw ell,one ofthe M edicaid plans
thatthe doctordid notaccept. 1d.at4059:14-21;4087:8-15.
26. A .D .called the Stayw ell representative that convinced her to sw itch
from M edipass to Stayw ell and com plained that her current doctor did not accept
Stayw ell. 1d. at 4060:14-25. The Stayw ell representative referred her to a
Stayw ell-affiliated EN T specialistin Sarasota. 1d.at4059:22 - 4060:25;4061:1-6;
4081:3-7. A .D .did not ow n a car atthe tim e and w as not able to go to Sarasota
44
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27. D r.D onaldson agreed to see K .K .later that day,despite the insurance
problem . PX 612 at K K EL 00006; D onaldson D epo.D esig.at 78:18 - 80:18;
206:21-25. Because D r.D onaldson w as not a Stayw ell provider, he risked not
getting reim bursed for his treatm ent ofK .K . B ecker on 2/1/2012 R ough Tr.at30,
Stayw elland thatA .D .requested the change. l find,how ever,that defendants did
not provide suffcient access to EN T specialists under the Staywell plan. Ear,
nose, and throat diseases such as otitis m edia, sinusitis, and tonsillitis are
frequently encountered illnesses w ithin the pediatric population, and Stayw ell
should have had an EN T on its panel in a m etropolitan area such as Ft.M yers.
B ecker on 2/1/2012 Rough Tr. at27.13
The m other of a child w ith private insurance would not have experienced such
difficulty in obtaining care. 1d.at30-31.
13D r. M arie Beckeris a board certified otolaryngologistw ho hasbeen in private practice
since 1995,treating children and adultscovered by both private insurance and M edicaid. Becker
on 2/1/2012 Rough Tr.at9-10. Ifind her credible and knowledgeable and certify her as an
expertinotolaryngology. DefendantshaveobjectedtoDr.Beckerandtheotherwitnesseswho
havegiven experttestim ony asto thenam ed plaintiffs'lack ofadequateand promptcare. Ihave
considered these m otionsto exclude the expertw itnesstestim ony and deny them as each ofthese
expertsiscompetentto testify asan expertbased on areview ofthem edicalrecordsand thetrial
testim ony. Further, I find their testimony m ore credible than the conclusory opinion of
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30. D efendants also failed to infonn A.D .of her rights under M edicaid.
A .D . did not know that K .K . w as entitled to dental coverage through M edicaid
untilafter she becam e a plaintiff. A .D .on 8/12/2010 FinalTr.at4063:13-21. She
did notrealize,even after receiving a letter dated D ecem ber 12,2007 from A H CA
32. K .K .w as noton M edicaid fora few m onths in late 2010 through early
2011 because A .D .did notm eetthe econom ic eligibility requirem ents during that
Stayw ell, w ithout A .D .'S consent. 1d. at 58. A .D . did not know that K .K w as
assigned to Stayw ell. 1d.at58.15
33. The result of the sw itch w as harm ful to K .K . Stayw ell denied the
prescription for Vyvance because
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taking A dderall,his teacher com plained abouthis conductand his m other also saw
a signifcant deterioration in his conduct. 1d.at 64-65;D X 55C at A ssociates in
Pediatrics000076-77.
K .K . w as changed back to M edipass, and began retaking V yvance
about m id-M ay. A .D .on 1/25/2012 R ough Tr.at 75. The doctor had to increase
the dosage ofV yvance to getitto w ork as ithad before. 1d.at65.
4. N athanielG orenflo
36. Rita Gorenflo is the m other ofN athanielG orentlo,one of the nam ed
plaintiffs in this action. Gorentlo on 5/18/2010 FinalTr.at2290:23 to 2291:2.
The G orenfloslive in Palm B each County 1d.at2298:3-4.16
.
16 M S. Gorenflo has agreed to allow hername and her children's nam es to be used in
these proceedings. f#.at2288:21-23.
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38. Nathaniel's birth m other was on cocaine at the tim e Nathaniel was
born. 1d. at 2293:16-21. H e later developed A ID S. 1d.at 2293:20-22;2294:11-
He is developm entally delayed,hasm ultiple psychiatric issues,id.at2294:610, and sees a num ber of different m edical providers and specialists. 1d. at
2294:20-22.
told CM S that her son w as in pain and needed to be seen right aw ay. 17 u at
2300:7-13. She explained that her son could not tellher w here the pain w as but
w ould tscream and bang hishead''and putthe w hole house in tttotalchaos.'' 1d.at
2299:24 - 2300:6.
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731,and 734. Thathistory m akes itm ore likely he w illsuffer from sinusitisagain.
Becker on 2/1/2012 Rough Tr. at
im m une-com prom ised and susceptible to infection. 1d.at 15. The factthathe had
physician the day his m other requested an appointm ent or atthe latest on the next
day. 1d.at 19-21.
18The July 14, 2005,entry in the CM S ntlrsing notes,which indicates thatM s.G orenflo
called on July 13 and asked for an EN T appointm ent for N athaniel A SA P, does not say M s.
G orenflo was offered an appointm entin six m onths. H ow ever,the notes are incom plete and in
factthere is a 16 or 17 m onth gap atone pointbetween entries even though M s.Gorenflo never
went that long w ithout taking N athanielto a CM S clinic. Gorenflo on 5/18/2010 FinalTr.at
2300:23- 2302:7,
*PX 617 atN G CM S 000756.
19M s. Gorenflo also called CM S in February of2008 to seehow long thewaitwould be
foranother ofherchildren to get into a CM S EN T clinic;the w aitw as four m onths.'' Gorenflo
ON 5/18/2010 FinalTr.at2315:3- 2316:5. M s.Dorhout,the CM S nursing supervisorin Palm
Beach County, testified that in April of 2011 the w aiting list for the CM S EN T clinic w as
probably two tothreem onths. Dorhouton 4/4/2011Rough Tr.at52.
49
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44. A patientwith the sam e symptom s and private insurance would have
been seen by an EN T either the sam e day or atthe latest,the follow ing day. 1d.at
21-22.20
would a sim ilarly situated child with private insurance. 1d. at 23. Having
N athanielw aitfive days for an EN T evaluation w as ttunreasonable.'' 1d.at25. H e
should have received an EN T evaluation the sam e day his m other called or at the
very the latest,the nextday. 1d.at25.
5. J.S.
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about$300.16L
50. K .S. then called a 1-800 M edicaid num ber for suggestions for an
orthopedist. 1d.at 1965:17-22. She called allthe doctors she w as given butno one
w ould agree to treather daughter because she w as on M edicaid. 1d.at 1965:23 1966:5; 1967:10-13. She also called orthopedists listed in the Y ellow Pages for
Palm B each C ounty w ithoutsuccess. 16l at 1966:6-18; 1967:10-13. She called St.
M ary's H ospitalfora referralbutcould notfind an orthopedistthatw ay either. 1d.
at 1966:19-22. N one of the orthopedists she called would agree to treat her
daughter as a M edicaid patient. 1d at 1967:17-19; 1996:22 - 1997:13;2023:18 2024:1.
51. Finally,w ith help from a 1aw firm ,she obtained an appointm ent w ith
an orthopedist. 1d.at 1967:20 - 1968:7;2024:2-3.
51
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6. N .V .
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diagnosed with Shw achm an Diam ond Syndrom e, which causes pancreatic
insufficiency. 1d.at4229:6-20;4243:3-9. Propernutrition is therefore criticalto
N .V .'Shealth.1d.at4242:23 - 4243:2.
K .V .applied forM edicaid forN .V .while the fam ily wasstillresiding
in N ew Jersey. Id. at 4230:3-16. N .V .is disabled,by social security standards,
and thus entitled to receive M edicaid. 1d.
58. K .V . and her fam ily m oved to Florida in 2005. 1d. at 4246:22
4247:1. W hen N .V .w as aboutthree,he developed t00th decay,w hich he is prone
PX 673. By thistim e,N .V .'S appetite had dim inished because ofthe t00th decay
22Though Dr. Robbins'notesinclude a notation thathe doesnotdo Glwhite''fillings,PX
672,K.V.recalled the only reason Dr.Robbins told her for refusing to treat N.V.was that
M edicaid would notpay for a second cap in the eventthe child lostone. Id.at 4239:3-15.
U ltim ately N .V .gotboth stainless and white caps. ld at 18-20.
53
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that learning problem s are a com m on issue for children w ith hydrocephalus and
recom m ended thatN .V .be evaluated by a neuropsychologistbefore the startofthe
schoolyear. 1d.
63. D r. O livera referred N .V .
75. In early Septem ber,K .V .attem pted to m ake an appointm ent,explaining that
her son w as on M edicaid. 1d. at 74-75. The O rlando office did not have any
available appointm ents and the M elbourne office could only offer an appointm ent
in January w ith D r.Lyons. 1d. at 76-77. M oreover,D r.Lyons's office did not
com m itto seeing N .V .in January,butinstructed K .V .to callback forconfirm ation
of whetherN .V .could be seen. f#.at 76. K .V.called back to the oftsce every
w eek for the next six w eeks to find out w hether or not D r.Lyons w ould agree to
treat N .V . 1d.at 77-78. D uring this period,K .V .asked both D r.Lyons and D r.
O livera for a referral for a neuropsychologist w ho w ould accept M edicaid, but
neither could provide one. 1d.at 77. Finally,w ith assistance from D r.O livera,
K .V .w as seen by D r.Lyons in N ovem ber of 2011,about tw o m onths after N .V .
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7. J.W .
PX
630 at
of tneck pain'' ttw ere highly concerning of new disease,'' PX 634 at N em ours
000145,and w anted to perform an im aging study,either a CT scan or an M R I,to
23 The adm ission history states the x-ray was made on 10/22/047PX 630 atJW CM S
000027,butthatis clearly a typographicalerrorbecause the x-ray w asdone on 12/22/04.
- .
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expedite authorization for the CT scan. 1d.at 000157 (8/2/2005 note at 11:45
a.m .). Authorization was stilldelayed. Nemours 000145 Csdifficulty obtaining
authorization for imaging studies''); 1d. at 000065 (tdifficulty abtaining (sicq
imaging studies'');E.W .on 6/16/2010 Depo.Desig.at26:22-25;31:6-19;36:1724;137:2-24; 195:5-22.
68. E.W . and the rest of the fam ily w ere deeply concerned, PX 634 at
N em ours 000157, as J.W .'S pain w as getting w orse. E .W . on 6/16/2010 D epo.
D esig.at27:6 - 28:15. E.W .called D r.A ssanasen's office every day to see ifhe
had been able to obtain authorization for an im aging study. 1d.at 27:25 - 28:15;
29:9-20.
69. Partof the delay in approving the im agining study apparently resulted
from the fact that the M edicaid 11M 0 had sw itched J.W .'S prim ary care provider
w ithout the know ledge or consentof E .W . J.W .'S prim ary care provider w as D r.
W illiam J.W hibbs, PX 629 at W hibbs 000008; PX 630 at JW CM S 000003;
56
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to spread.'' PX 634 at N em ours 000145. J.W .w as ddem ergently adm itted'' for
evaluation by both oncology and pediatrics. f#. The doctors began treating J.W .
w ith chem otherapy and placed him in a Philadelphia collar to stabilize his neck.
1d.at000149.
72. H is oncologist w anted to adm inister the chem otherapeutic agents
through an infusaportbecause the agents are caustic and could burn his skin,but
ta Heating pad gwasla11thatisusually needed to make gthe pain in J.W .'Sneck)go away.''
Defs.'Corrected Proposed FindingsofFactand ConclusionsofLaw at88. Thatthe pain could
be treated with a heating pad does not negate the factthatthe scan was urgentto determine
whether J.W .'S cancer had returned. ltind thatthe five w eek period ittook to authorize the CT
scan constituted an unreasonable delay. A child w ith private insurance w hose physician ordered
an im aging testbecause he suspected the child had a tum orwould likely be able to obtain an
imaging study within a day or two,and in no event would have to wait m ore than a week.
Having to waitfive w eeks for a study w as below the standard of care. M iddlem as on 1/31/2012
Rough Tr.at5-6.
57
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Septem ber l5,2005,m ore than tw o w eeks afterthe chem otherapy began. PX 631
atSacred H eart000117.
73. J.W .was later switched fora second time,thistim e from Hea1th Ease
to straight M edicaid''in about M arch of 2007. E.W .6/16/2010 D epo.D esig.at
64:23 - 66:2;67:22 - 69:3. E.W .did not requestthe switch and had to pay for
J.W .'S psychologist herself because the psychologist w ould not accept straight
M edicaid.'' 1d.
74. E.W .later had trouble obtaining dental care for J.W . and there w as a
period ofseveralm onths w hen he did nothave dentalcare untilE.W .heard abouta
new dentalclinic atSacred H eartH ospital. 1d.at74:2-24.
75. Stilllater,E.W .had trouble renew ing J.W .'S M edicaid and had to call
the 800 num ber to tly to fix the problem . Every tim e she called the 800 num ber
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physicianswhoprovideM edicaidservices.SeeFla.Stat.j409.902.
77.
M edicare rates,w hich are determ ined by the federalgovernm ent. See PX 128A ,
1/3/08 M em orandum from B .K idder to C. Snipes;PX 685,11B 329 A H CA B ill
collaboration w ith
researchers.'' PX 495, Flint Report at 13. That process results in the R esource
Based Relative Value System ($dRBRVS''),by which allhealth care services are
assigned a code and a total relative value based on physician w ork, practice
The federalgovem mentadjusts the M edicare rates for each procedure code to
account for geographicalpractice cost variations. See PX 495,FlintReportat 13.
Even though the resulting M edicare rates dshistorically have been below private
exceptfor certain codes thatare held apartfrom the norm albudgetary process,by
applying a conversion factorto the M edicare ratesso thattotalexpected outlays for
M edicaid services fit w ithin the program 's appropriations from the Florida
m em orandum explains'
.
59
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The A gency determ ines physician fees using the M edicare R esource
Based R elative V alue System ....The relative value is m ultiplied by
a conversion factorto determ ine the fee. The Agency forHealth Care
A dm inistration calculates a conversion factor to m aintain budget
neutrality,unless the legislature provides additional funding for the
physician servicesbudget.
PX 128A .See also PX 685.
In 2008,the conversion factor w as 34.0682 for M edicare,com pared
A H CA does not consider w hether the reim bursem entrates are sufficient to ensure
thatchildren on M edicaid have access to health care services equalto thatof other
whether the ratesare sufficientto ensure thatEPSDT services are m ade available
with reasonable prom ptness. 1d. Throughout this litigation, defendants have
disavowed any legalresponsibility forensuring thathealth care servicesare m ade
available to children on M edicaid, arguing that their duty is to provide paym ent
w ith reasonable prom ptnessw hen such services are rendered. See,e.g.,D .E .548-3
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had(foundcriticalshortagesofM edicaidparticipatingphysiciansinthestate.'').
82.Although certain codes for office-based and preventative health care
visits are held outside the budget neutrality'' and conversion factor analysis,an
overwhelm ing num berofcodesare not. See W illiam son 10/17/2011Rough Tr.at
133-134;K idder on 5/19/2010 Final Tr. at 2502:5-14; D X 470. Even for those
codes,trial testim ony show s that cun-ent Florida reim bursem ent for M edicaid is
substantially below the level provided for M edicare reim bursem ent for the sam e
office-based services that are the m ost com m only billed codes. See K idder on
5/19/2010 FinalTr.at2497:16 - 2499:1.221.Plaintiffspresented credible evidence
underM edicaid for prim ary care physicians serving children are compensated at
ratesthatfor m ostcodes are lessthan halfofthe M edicaid rate. See PX 781,Louis
M edicare reim bursem ent is greater in the M iam iand Ft.Lauderdale areas,with
M edicaid paying an even low er percentage of M edicare reim bursem ent. See PX
below private insurer reim bursem ent for the sam e procedures in the sam e
geographicalareas.
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84. The difference betw een M edicaid reim bursem ent and private
reim bursem entis also true for specialists.
85.Prim ary care feesw ere increased in 2000 by a totalof$1.8 million for3
office visit codes;in 2002,the Florida legislature authorized a 4% increase for al1
providers treating children. N o other increases for prim ary care providers for
children have occurred since 2000.25 px 128A . R ather, in O ctober of 2008,the
legislature cutby one-third from $3 to $2,the m onthly per child fee paid prim ary
care providers participating in the M edipass system for m anaging the care
provided to children on M edicaid. St.Petery on 12/10/2009 FinalTr.at625:1115;W illiam s on 10/17/2011 Rough Tr.at 141.
86. C ertain specialists received an increase in 2004 of 24% for treating
for cost-of-living changes, while Florida's M edicaid program does not. See
W illiam s on 10/17/2011 Rough Tr.at 13 1.
88.Florida's M edicaid reimbursem ent level was in the low est quintile of
states in the United States as of 2003 and ithas continued to decline relative to
otherstates. Flinton 8/5/2010 FinalTr.at3521:2-20.
89. In LBR S over a num ber of years, A H CA has requested increases in
com pensation paid for healthy kid check-ups as w ell as for specialist care. A s
25 M inor budget neutral changes have been made, both increases and decreases, in
reim bursem ent rates for individual codes based on the annual Resources Based Relative Value
System adjustments.
62
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90.D efendants,and certain of their w itnesses, claim that these LBR S w ere
predicated on unsupported inform ation. See W illiam s on 10/17/2011 R ough Tr.at
163-164; K idder on 10/3/201l Rough Tr.at 77. I find defendants' explanations
unpersuasive. The LBR S w ere prepared by offcials w ho recognized their
obligation to be accurate and honestin presenting the view s oftheir agency to the
governor and the legislature. M oreover,these very w itnesses adm itted under oath
as agency representatives during their depositions thatthe LBR S w ere truthfuland
correct. At trial, A H CA adm itted that they never told the legislature that their
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See also Cockrum v. Calfano, 475 F.Supp. 1222, 1227 n.1 (D.D.C. 1979)
(Secretary ofHealth,Education and W elfare estopped from asserting claimants
responsibility for delays in adm inistrative hearings by his adm issions elsew here
Florida M edicaid reim bursem entlevels are notsufficient for Florida M edicaid to
be a com petitive purchaser for m edical services. D r. Sam uelFlint,an A ssistant
M edicaid reim burses prim ary care physicians at slightly m ore than one-half of
w hat M edicare pays,and specialists receive about tw o-thirds of M edicare rates.''
1d.at2.See also PX 782.
93.D r.Flint also com pared Florida M edicaid rates against cost m easures,
finding thatta prim ary care practice comprised of 75% M edicaid patients could
notrem ain solvent,even ifthe physician w orked for free.'' PX 495,FlintR eportat
19.
94. D efendants' expert w itness, Catherine Sreckovich, adm ittedly did not
conductany analysis of the adequacy of Florida reim bursem ent rates. Sreckovich
64
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C.
1.
95.Florida m ust provide children under the age of five w ith 12 m onths of
continuous eligibility and children betw een the agesof 5 and 18 w ith six m onthsof
continuous eligibility. PX 712 at FL-M ED 08336. C hildren should not lose
eligibility w ithin that period unless they m ove out of the state or die. Lew is on
10/20/2010 FinalTr.at 4654:10 - 4655:4. Every tim e a child is detenuined orredeterm ined to be eligible for M edicaid, a new period of continuous eligibility
97.M s.Sreckovich's initial reportexam ined the period betw een 2004 and
2008 and focused on children under five years of age. The num bers in M s.
Sreckovich's reportretlected only children w hose eligibility w as term inated and
reasons, they exclude children who never regained eligibility. St. Petery on
2/2/2012 R ough Tr.at 75-76.
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case ofchildren ages one to five,this would be approxim ately 65,000 children in
the course ofa year. 1d.at93-96.
100.D C F acknow ledged thatfor each federalfiscalyear from 2003 to 2007,
restored m aking it seem as if they had not lost eligibility,they underestim ate the
num ber of im proper term inations. St.Petery on 12/10/2009 FinalTr.at 593:19 594:19;PX 688.
in which the M edicaid coverage was not provided through the entitlem ent
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10/20/2010 FinalTr.at4666:14-25.
103.D C F in the sam e analysis also looked m ore generally atw hether ornot
there had been w rongfuldenialsofcoverage orterm inations and found that29% of
the term inations for both children and adults w ere erroneous. D X 169a at 3-4;
Lew is on 10/20/2010 FinalTr.at4667:16-25,4671:1-12. M r.Lew is knew of no
reason w hy adults or children w ould have different term ination rates. 1d. at
4671:13-18.
104.D C F states ithas been trying since 2002 to fix the problem s thatcause
som e children to be term inated in violation oftheirrights to continuous eligibility.
Poirier on 10/5/2011 R ough Tr.at 71-72. For years,D C F has been considering
im plem enting a com puterized system for m onitoring continuous eligibility of
M edicaid Children, but has not done so- even though there is no technical
problem thatwould preventDCF from instituting an autom atic system forensuring
continuouseligibility. Lew is on 10/21/2010 FinalTr.at4800:10 - 4801:15.
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inform ation regarding a child's eligibility and assignm ent to a prim ary care
provider. St.Petery on 12/10/2009 FinalTr.at554:19 - 555:10. D r.St.Petery has
retroactively.1d.at555:1-21,575:18- 576:11.
2.
Sw itching
109. ddsw itching'' occurs when a child has been switched to a different
M edicaid plan. O ften tim es this is discovered w hen the child goes to their
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com m on cause of sw itching. Children w hose eligibility has been term inated and
then reinstated w ithin a 60 day period are required to be reassigned back to the
plan they originally chose. This requirem ent,how ever, is not alw ays follow ed,
leading to m ore tdsw itching.'' M ccorm ick on 8/12/2010 Final Tr. at 4148:3
4149:14.
1l0.G etting a child sw itched back to the originalprim ary care provider can
be a tim e-consum ing process because the system only allow s a change once a
m onth. 1d. at 562:14 - 563:15.iM any tim es the provider's staff spends a lot of
tim e trying to fix the problem so that the child can com e back to their practice.''
1d. at 558:1-4. A prim ary care doctor from w hom a child has been sw itched no
longer can authorize a referral for further care, even for an x-ray. 1d.at 559:6 -
560:9. G enerally,ifa child has been sw itched to an l1M O ,the 11M 0 w illnotpay
the physician to w hom the child w aspreviously assigned. 1d.at558:5-19.
111.Sw itching is an obstacle to M edicaid children's access to care. 1d.at
560:18-20. Because sw itching m oves children from one m edicalhom e to another,
it interferes w ith continuity of care,m ay delay care,and can lead to children not
112.Sw itching is nota new problem . D r.St.Petery has been com plaining
to A H CA and D CF about sw itching for 20-25 years, but the problem still
continues. 1d.at572:7-19.
sw itching. 1d. at 4932:22 - 4933:2. M r. Sharpe had his staff investigate cases
69
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broughtto him by Dr.St.Petery,and they determ ined thatthe children were indeed
sw itched w ithout the parent requesting a change of provider. 1d. at 4933:2:2 4933:12.
114.Phyllis Sloyer,then A ssistantD irector ofCM S,also com plained to M r.
Sham e about sw itching and how it affected continuity of care for children in the
C M S program . 1d. at 4933:13 - 4935: 9. M r.Sharpe w as not able to elim inate
sw itching, w hich rem ained a problem during his tenure. f#. at 4935:10-15;
4936:13-15.
incorrectly term inates a child's eligibility and then, realizing the error, reestablishes the child's eligibility. Since eligibility inform ation is transported
nightly from D CF'S com puter to A H CA 'S FM M IS com puter system ,these actions
cause A H CA 'S FM M IS system to send a letter to the child's parent,as it does to
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on 11/8/2011 Rough Tr. at 148. By statute, 65% of the assignm ents are to
M edicaid 14M Os,which m ay notbe a plan in which the child's pediatrician is
enrolled. St.Petery on 12/10/2009 FinalTr.at570:1-25;Plaintiffs'D em onstrative
ExhibitC on Sw itching used w ith D r.St.Petery.
119.D uring the course ofthis litigation,D CF discovered thatw hen itdeletes
the M edicaid eligibility category code for a child and places the child in a new
Tr.at 4645:15 - 4646:22. DCF learned this notonly during the course of this
litigation,butbecauseo/thislitigation.Lewison 11/29/2011RoughTr.at12-13.
120.To avoid thatsituation,DCF case workers were instructed to close the
old category and open a new category simultaneously so thatAH CA would not
confuse a category change w ith an eligibility termination. Lewis on 10/20/2010
FinalTr.at4646:23 - 4647:6.
121.D CF has nottaken any steps to m easure w hat im pact their change in
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care. S.B .'S l8-m onth check-up w as delayed. Because K .K .w as sw itched,he had
to change from V yvance,an A D I-ID dnlg that w orked for him ,to A dderall,one
thatdid not. ln J.W .'S case,on one occasion sw itching contributed to a five-w eek
delay in perform ing an im aging study to see ifa tum or had reappeared on his neck,
and in another, it caused his fam ily to have to pay out of pocket for his A D I'ID
m edication. See supra at55-58.
123.Testim ony at trial also show ed that sw itching is a regular occurrence
for prim ary care providers. D r.Lisa Cosgrove is a prim ary care physician w ho
the tim e of office staff w ho try to assist patients in getting sw itched back to her
practice,for w hich there is no com pensation. 1d.at2583:13 - 2584:5.
124. D r.N ancy Silva is a pediatrician w ho practices in B randon,Florida.
Silva on 5/20/2010 Final Tr. at 2767:19-21; 2768:1-2.
D r. Silva's M edicaid
patientsare sw itched tallthe tim e''from one prim ary care providerto anotherand
one insurer to another. 1d. at 2796:11-21. Seldom does the child's new doctor
authorize D r. Silva's office to see the child unless there is an acute signifcant
illness. W ithout authorization from the new doctor,D r.Silva cannot getpaid for
any care provided. 1d.at 2798:16 - 2799:3. Thus,sw itching interferes w ith her
patients' continuity of care. 1d.at 2799:4-20. Sw itching also results in lost staff
tim e forpediatricians and is a deterrentto participating in M edicaid. 1d.at2799:21
-
2800:11. Ittakes approxim ately six w eeksto geta M edicaid child w ho has been
72
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M edicaid patientsare som etim essw itched aw ay from hispractice. 1d.at3894:1220. Generally,after a couple of m onths they return to his practice after getting
sw itched back. 1d.at3895:8-25. Sw itching generally leads to delayed care forhis
patients. 1d.at3896:15-24.
D r. Schechtm an's
ltperson in his business office who spends 50% ofhertim e dealing with M edicaid
eligibility, M edicaid sw itching and issues along those lines.'' 1ti at 2847:21 2848:4. A ccording to D r. Schechtm an, sw itching causes a num ber of adverse
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problem s,they are consistent w ith the testim ony of other doctors w ith respect to
sw itching.
128.O therdoctors regularly encountersw itching as w ell. D onaldson D epo.
D esig. on 10/15/2008 at 140:9 - 141:4; K nappenberger D epo. D esignation on
11/20/2008 at 93:8 -94:12,95:4-6;R itrosky,D epo.D esignation on 11/10/2008 at
82:1; 84:22
85:7; W .
117:1;
106:22, 107:7-1l;
130.
eligibility
iBaby 0 f9Process
spresum ptively eligible'' new born
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602:3-15. ltis called the tbaby of'process because itdescribesthe practice ofa
pregnantm otherapplying to DCF foraM edicaid num berforherunbol'n child.1d.
at 601:1-11. W hen the child is born,the M edicaid num ber is supposed to be
activated. 1d.at602:16 - 603:1.
and (3) children are sometimes issued two M edicaid numbers. This becomes
problem atic because w hen DCF realizes there are two num bers it cancels one;if
the physician has been using the cancelled num ber, all the services billed are
denied even though the child is actually eligible. 1d.at603:2-25.
132. U nder the applicable periodicity schedule, children are supposed to
visita physician w hen they are five days old. D CF'S failure to activate the child's
M edicaid eligibility can cause a delay in the child obtaining care or the provider
receiving paym ent. 1d.at 604:1-14;605:19-22. Prim ary care providers find that
the activation process forpresumptively eligible newbornsis often delayed. lsaac
on 8/11/2010 FinalTr.at 3892:16 - 3893:24;Schechtm an on 5/20/2010 FinalTr.
at2849:9 - 2850:7. Cosgrove on FinalTr.on 5/19/2010 at2584:6 - 2586:15.
133. C arol M ccorm ick is the adm inistrator and nursing director of TPF.
Id. at 4114:22-25.
presum ptively eligible new borns whose M edicaid is not activated or w hose
eligibility has been term inated in less than a year's tim e. f#.at 4118:8-24. In the
fallof2008,w hen a subpoena for docum ents w as served on TPF,M s.M ccorm ick
instructed herstaffto provide herw ith allthe chartsofchildren w ho w ere currently
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problem .1d.at4123:1-5.
134.Priorto 2008,a m other w as assigned a differentpersonalidentifcation
m atch the baby of' application w ith the subsequent new born child. Poirier on
10/5/2011 R ough Tr.at39;43.See also PX 738. A s soon as D CF found outthere
w ere tw o num bers for a child,itw ould cancelone. St.Petery on 12/10/2009 Final
Tr.at603:18-25. If,how ever,a num ber thata provider w as billing under w as the
num ber that w as cancelled,A H CA w ould deny paym ent for the services billed
underthatnum ber. 1d.
135.In 2008,D CF reprogram m ed its com puters to allow a pregnantw om an
applying for M edicaid for herself and her unborn child to be assigned the sam e
case num ber,even though the m other and eventually the child would each be
assigned a separate M edicaid personalidentification num ber. The new policy w as
76
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D.
A H CA
77
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T he C M S 416 R eports
the year,but rather the num ber of children w ho w ere expected to receive a checkup- given the length of their enrollm ent in M edicaid and the periodicity schedule
for children their age butdid notreceive one. Snipes on 1/8/2010 FinalTr.at
by the total eligible children w ho should receive at least one initial or periodic
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alternative CPT code would be econom ically irrational because alm ost al1 the
alternative codespay lessthan theCH CUP codes. Flinton 1/24/2012 Rough Tr.at
155-58.26 O ften the com pensation for the physician is tw ice as high under the
EPSD T code than under the alternative codes M s.Sreckovich claim s the doctors
l51.Defendants also claim thatthe CM S 416 reports underreportthe wellchild check-up services provided because the encounter data that Florida l'IM o s
provide to AHCA isincom plete and does notcapture allthe w ell-child check-ups
perform ed by l1M O s. There is no quantification, how ever, of any signiscant
problem s w ith the reporting of encounter data in Florida or that any such alleged
26w hile one new child code, 99205,paysm ore than well-child codes,a new child code
can only beused onceperproviderperchild.
80
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support the assertions that Florida I4M Os' encounter data suffers from
underreporting or that such underreporting has led to failure to reportwell-child
check-ups on the CM S 416 report. The 2007 G A O report, Concerns Rem ain
R egarding Sufficiency of D ata for O versightof Children's D ental Services,noted
that the quality and com pleteness of encounter data had im proved since 2001.
Flinton 1/30/2012 R ough Tr.at 103-104.
153.Florida I-lM O s, as partof their contractual requirem ents w ith AH C A ,
are required to provide a m iniCM S 416 report. Brow n-W oofter 10/26/11 Rough
Tr. at 43. They are also required to have that report audited and to provide a
certitication thatthe inform ation on thatreportis tnle and correct. B rown-W oofter
1/6/2010 FinalTr.at813:24 - 814:9. H e hasa Ph.D .in public adm inistration and
policy from the U niversity ofA lbany. 1d.at 815:21 to 816:6. D r.D arling has also
81
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156. Second, the federal instructions for com piling the CM S 416 report
results in over-reporting of screening ratios forthe tlless than one''and ttone to tw o
year''age groups because the periodicity schedule does not require screenings at
set intervals,but the CM S reporting requirem ents assum e that the schedule does.
D arling on 1/6/2010 Final Tr.at 850:5-17, 857:25 - 859:10. The screening ratio
thatFlorida reports is 28.92% higher than w hat it should be because the error in
reporting results in the expected num berofscreeningsbeing too low . 1d.at 859:11
-
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received by com bining the totalnum ber of well-child exam inations provided to
children on M edicaid w ith certain sick child or tEproblem -oriented''exam inations.
Sreckovich on 1/10/012 Rough Tr.at35.
receiving. 1d.30-35. She did notlearn ofthis error untilshe read Dr.Darling's
rebuttalreport. 1d.at 23-24. She did notknow how she m ade such a significant
errorthatw as repeated throughoutthe report. 1d.at 26-27. She also adm itted that
she did notrealize thather analysis,which purported to include only claim sdata,
also im properly included som e encounter data,untilshe read D r.D arling's rebuttal
report. Id. at 22-23. R epeated errors such as these underm ine M s.Sreckovich's
credibility.
161. Second, even in her revised tables, M s. Sreckovich continued to
com bine the total num ber of w ell-child exam inations w ith certain sick child
exam inations. She calls the com bined services itpreventative assessm ent and
evaluation services,''a category she created,which lacks a basisin the CPT codes.
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those sick child visits,the children received at leastsom e components of a wellchild exam ,even though they did notreceive allcom ponentsofa well-child exam .
Sreckovich on 1/17/2012 Rough Tr.at 109. She acknow ledged that she is not
proxy for w ell-child visits. D arling on 1/23/2012 R ough Tr.at 35-38; Flint on
1/24/2012 Rough Tr.at 163-67.
163.I agree w ith plaintiffs that sick child visits are nota proxy or substitute
for w ell-child visits and do notplace any w eight on this partof M s.Sreckovich's
analysis.
w hen in actuality they did not. Sreckovich on 1/12/212 R ough Tr.at46-47. Both
D r. D arling and D r. Flint are strongly critical of M s. Sreckovich's averaging
approach, w hich they claim presents a m isleading picture of how m uch care
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H ED IS R eports
in Florida M edicaid do not receive the prim ary care to w hich they are entitled
under federal law . A H CA requires its M edicaid I4M O s, in accordance w ith 42
switched.Seesupra!!1-11.
85
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m easure health plan perform ances. 1d. ECAHCA expects its contracted I'IM os to
support health care claim s system s, m em bership data, provider files, and
hardw are/softw are m anagem ent tools, w hich facilitate accurate and reliable
reporting of I-IED IS m easures.'' 1d. The agency contracts w ith H ealth Services
A dvisory G roup,its externalquality review organization,to evaluate how Florida
M edicaid's I4M o s perform against certain I-IED IS m easures. Brow n-W oofter on
FIED IS com pliance audit. PX 733 at 2-4. The results are w ithin a 5 point
sam pling error atthe 95% confidence level. 1d. I-IED IS m easures track the care
provided to beneficiaries w ho are continuously enrolled in M edicaid for a certain
period oftim e- typically eleven m onths in a year. Crall on 2/7/2011 FinalTr.at
5213:2-6.
169. For all the I-IED IS m easures at issue in this action, M -ICA allow ed
I4M o s to determ ine theirresults using the hybrid m ethod w here claim srecords and
adm inistrative data is supplem ented by a chartreview for benefciaries for w hom
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Plan 9.2% . PX 733 at 3-4. For 2007,six of the l-lM o s had 5% or m ore of the
infants receiving no w ell-child check-ups in the frst fifteen m onths of life. D X
361 at D efendants 022774. These fgures indicate that m any infants received no
preventative care atall.
lf undetected in toddlers,
abnorm alities in grow th,hearing, and vision im pact future learning opportunities
and experiences. Early detection of developm ental difficulties provides the
greatest opportunity for intervention and resolution so that children continue to
grow and learn free from any health-related lim itations.'' PX 733 at3-1.
173.O ther I'
IED IS m easures also show that in both reform and non-reform
counties children on M edicaid l'IM o s receive less prim ary care than children
enrolled in the average 11M 0 nationally. A 1l 13 M edicaid 1-1M o s operating in non-
for the sam e year,seven of nine Florida M edicaid 14M o s fellbelow the national
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and two nearthe tenth percentile. 1d. ln reform counties,the resultswere sim ilar.
Six M edicaid l'
IM o s scored above the nationalm ean;nine w ere below it. 17X 334
atD efendants 021277.
175. A nother FIED IS study looked at the w ell care provided to children
betw een 1l to 20 years of age and found that only 19.6% received one or m ore
w ell-child visitduring the study period;PX 689 at Sum m ary of Findings;Brow n-
M edicaid are teenage m others. For these m others, prenatal care is a type of
prim ary care. Seven of Florida's M edicaid l'lM o s have m ore than one-third of
88
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179.The num ber of children on the M edicaid rolls has grow n sharply,but
the num ber of pediatricians w illing to treat them has not. The num ber of Florida
that the num ber of prim ary care providers has increased at all, let alone
proportionately,thus placing an increased dem and on existing providers. See PX
682 at FL-M ED 07816; D X 262. ln fact, Florida has an overall shortage of
physicians per 100,000 residents,com pared to the U nited States as a w hole, PX
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state that ddM edicaid rates were so low that specialists were reluctant to take
FQHCShadjust32pediatriciansandonepediatricsubspecialist.1d.M oreover,all
well-child visits provided by Cl'
lDS and FQHCS are included on the CM S 416
repol't. C rallon 2/8/2011 R ough Tr.at83-84. There is no reason to believe Clo S
the budget for the Clo s by $30 m illion as of July 2011,leading to 300-400
positionsbeing cutatthe ClD s. Sentm an on 10/6/2011R ough Tr.at 11-13.
F. C hild H ealth C heck-u p R ate lncreases
184. A n increase in the reim bursem ent rate for w ell-child, check-up
ups ifrom $30 to $64.82,and the participation rates increased from 32 percentto
64 percent.'' PX 734. A H CA has m ade that sam e assertion repeatedly in form al
increase on the participation rate when it proposed a child health check-up rate
increase from $71.59 to $90.97 for the 2007-2008 budget year. W illiam s on
10/13/2011 Rough Tr.at 88-89;PX 734. A H CA then predicted thatsam e pattern
w ould hold in the future. lncreasing the Child H ea1th Check-up reim bursem ent
rate w ill increase access to service,w hich w ill increase the early identification of
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fees for well-child check-ups thave increased only a few dollars due to the
state:itln 1995,there wasa feeincrease from $30 to $64.82 and the (Child Health
Check-upqparticipationrateincreased9om 32percentto 64percent.''PX 96.See
also D X 600. The A gency used that sam e language in LB R S for five consecutive
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regarding the proposed increase in reim bursem entrates for child health check-ups
were true and correct. One w itness,Beth K idder,wasBureau Chief forM edicaid
ServicesatAHCA,and had held thatposition since 2005. M s.Kiddertestified ata
deposition in 2008,tlu-ee yearsafterthis action began. K idder on 10/3/2011 Rough
Tr. at 28-30. A t trial, she acknow ledged her prior testim ony, including her
testim ony that the language in the LBR w as m eant to indicate itcausation, a
causative effect here, that if you increase the rates,you w ill increase physician
participation and in turn that w illresult in m ore kids receiving checkups.'' 1d. at
189.The second w itness,M elanie Brow n-W oofter,A H CA 'S designee under
She testified that the 1995 fee increase from $30 to $64.82 did not cause the
increasein theparticipation rate from 32% to 64% ,because the feeincreasedid not
lead to an im m ediate increase in the participation rate and because the increased
participation rate m ight have resulted from other factors,such as better reporting
by M edicaid 14M O s. K idder on 6/1/2011 R ough Tr.at 118-19. She changed her
testim ony based on inform ation she was provided by defense counsel after
testifying in M ay of 2010,as an adverse w itness in plaintiffs' case. K idder on
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191. M s. Brow n-W oofter sim ilarly changed her view s and on redirect
exam ination provided an am ended answ er sim ilar to M s.K idder's. See Brow nW oofter on 11/9/2011 R ough Tr. at 122-26.30 She too,w as notvery credible as to
this m atter.
well-child check-ups and the percentage of children eligible for M edicaid who
received a w ell-child check-up. 1 find M s.K idder's and M s. Brow n-W oofter's
trialtestim ony does not m eaningfully callinto question A H CA 'S belief as to this
cause-and-effectrelationship.
30O n cross exam ination, she said the increase in the participation rate m ay have been due
to increased outreach,see Brown-W oofter on 11/9/2011 Rough Tr. at 4, a w holly different
answ erthan thatelicited by defense counselon redirect.
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has in place to monitor and evaluate primary care providers (PCP) enrolled in
M edipassandmanagedcareorganizations(M CO).
195.AHCA devotesconsiderable resourcesto m onitoring. Thismonitoring,
however,doesnotdemonstrate thatchildren are receiving the care to which they
are entitled underfederallaw .
children on M edicaid as patients and does not work m ore than 30 m iles from
where hisorherpatientslive,doesnotdem onstrate thatthose children are ableto
see thatPCP on a tim ely basis. A H CA 'S m onitoring show s the system could w ork
on paper,butitdoes notprove thatitw orks in practice.
199.There is nothing persuasive in M s.Sreckovich's testim ony to establish
that tim ely care and access to the appropriate array of pediatric doctors was
actually provided ratherthan theoretically available. This isespecially true ifPCPS
affliated w ith M edipass or an 14540 chose to treat a large num ber of children on
M edicaid, despite the low M edicaid reim bursem ent rates. Flint on 1/24/2012
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R ough Tr.at 153. Further,M s.Sreckovich's generalopinion that she has notseen
evidence of a system atic problem ,Sreckovich on 1/12/2012 Rough Tr.at54-55,is
200.A num ber ofA H CA w itnesses,including M s.B row n-W oofter and M s.
K idder,offered lay opinions regarding access.
20l.M s.Brow n-W oofter offered a lay opinion thatthere are enough PCPS
enrolled in M edipass to com ply w ith the contractualrequirem ent that no provider
have m ore than 1,500 children on M edipass. Brow n-W oofter on 10/24/2011
Rough Tr.at 67-69. H ertestim ony does not indicate w hether children are actually
receiving care from PC PS, w ho are not obligated to accept any children on
average num ber of M edicaid patients that a typical PCP enrolled in M edipass
accepts.Brow n-W oofter on 11/8/2011 Rough Tr.at 81. Thus, if the num ber is
effectively
(with limited exceptions),for both primary care and specialty care. She also
opined that the increased num ber of children enrolled in M edicaid has not
im pacted A H CA 'S ability provide such care. K idder on 10/3/2011 Rough Tr.at
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H . Children'sM edicalServices(CM S)
203.CM S isa branch oftheD OH dedicated to helping children w ith special
health care needs. C onsistent w ith the problem s experienced by children on
M edicaid in accessing prim ary care, CM S has experienced problem s in finding
prim ary care providersto treatCM S children on M edicaid.
204.ln 2004,D O H conducted a Provider A ccess Survey,w hich show ed that
229:12.
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at AHCA 00148486. Doctors can comply w ith the blood lead screening
requirem ents by either doing the testing them selves or referring their patients to a
The higher the lead level,the m ore severe the consequences. 1d. H igher levels
have an even greater im pact on the health and cognitive developm ent of children,
210.According to the CDC,Florida ranks 8th in the nation forthe num ber
ofestim ated children with elevated blood lead levels. PX 71atAH CA 00148485;
Snipes on 12/9/2009 FinalTr.at399:12-16. Jacksonville and M iam irank 21stand
32nd respectively am ong large cities in the U nited States,w ith an estim ated 1,900
children w ith lead poisoning. PX 71 atA H CA 00148485.
211. A prim ary source of lead exposure in children is lead-based paint,
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behaviors and custom ary use of foreign products containing unsafe levels of lead.
PX 71 atA H CA 00148485;Snipes on 12/9/2009 FinalTr.at399:8-11.
The CM S 416 report subm itted in A pril of 2008 show ed that only
60,000 blood lead screenings had been conducted forthe 250,000 eligible children
betw een the ages of 1 and 2. PX 8 atA H CA 0000087-88. M r.Snipestestified,ttl
w ould say personally to m e that's not acceptable.'' Snipes on 12/9/2009 FinalTr.
at372:5-11.
214.ln 2006,the m ost recentyear for w hich there is fgures in the record,
there w ere 389 new reported cases of blood lead poisoning in Florida,w ith 20 or
m ore new cases reported in Brow ard,D uval,H illsborough,M iam i-D ade,O range,
Pinellas,and Polk counties. PX 77 atFL-M ED 07073.
For fiscal years 2005-06, 2006-07, 2007-08, and 2009-10, A H CA
requested an increase in reim bursem entrates forblood lead screening for children,
stating:tdB ecause physicians are not reim bursed for the collection and handling of
1ab specim ens during an office visit, M edicaid children are being referred to a
laboratory for the required blood lead test rather than the physician collecting the
specim en and forw arding itto the laboratory for analysis. Lack of reim bursem ent
has fragm ented care, due to the fact that m any recipients do not follow through
w ith the lab trip.,,31 px 7044PX 705;PX 97;PX 98;Snipes on 12/9/2009 FinalTr.
at391:12 - 397:8.
216.M r.Snipes supported the agency's request for an increase in fees for
handling blood and believed that it w ould im prove beneciaries' ability to get
31 One of the nam ed plaintiffs,S.M .,hasnotbeen tested for blood lead exposure,because the
firsttim e hism othertook him to the lab itw as closed,and she subsequently w asnotable to take
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proposed increases in reim bursement rates for blood lead testing, because he
believed thatthere w asa problem thathad to be addressed. 1d.at399:22 - 400:2.
J. Provision/u tilization/Tim eliness ofSpecialistC are
219.Defendantsobjecttothesestatementsonthegroundsthattheywerenot
applicable to children. D r.A gm m obi,how ever,expressly stated in his speech that
he w as speaking aboutaccess for specialty care forchildren as w ellas adults: W e
have children and people rightnow thatneed access to specialty care.'' PX 126A .
H e illustrated the pointby stating:
So w hat this m eans is that w hen a child goes to the em ergency room
w ith a broken arm ,they can't find an orthopedic surgeon to follow up
w ith. A bscess teeth, can't get care. U sually through m any hours of
w ork and basically pleading on bended knee,w e have actually found
care for that patient. H ow ever,there are unacceptable delays w hich
translate into poor quality and som etim es patients have to travel for
m iles. So all of that is to say yes, the service indicates and our
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1d.at5.
220.Dr.A gw tm obisaid thatw hile there are m any reasons forthe problem of
participatingin M edicaid?'').
223.D r.A gw unobi's view s are reinforced by a 2007 survey of the A H CA
101
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PX 205.
224. The survey responses from a num ber of the A H C A area offices
confirm ,and in certain instances,provide m ore detailthan the statew ide sum m ary.
for adults,but not for children. Kidder on 5/19/2010 Final Tr.at 2529:20 2530:10;B row n-W oofteron 10/25/2010 FinalTr.at83-96.
102
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throughout the state. See e.g.,PX 210 (October 2007 letter from Secretary
A gm m obi inviting providers to a M edicaid A ccess to Specialty Care Sum m it,
noting he had traveled the state,speaking aboutFlorida M edicaid w ith providers,
com m unity-based organizations, and A H CA staff, and stating: W ith rare
exception,w hen asked w hatthe m ost critical issue facing the program w as,they
identified the increasing lack of access to specialty m edical care for M edicaid
cardiology in Area 2);PX 188 (2006 AHCA survey showing lack of readily
availablespecialistcare);PX 211at7-11(relativenumberofspecialistsproviding
M edicaid services to total specialists);PX 221 (2000 survey of access to care
show s relative lack of access for M edicaid population and also geographic
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low est and highest estim ate of needs based on the literature. Each physician
specialty w as then given an access score from 1 to 5. The follow ing services
563 at Flint 0113 1, 01135. This survey also show ed the com parative lack of
accessper county.
deposition testim ony or prior written statements. For exam ple, M s. Kidder
testitied attrialthat she did not believe the shortages noted in the A H CA survey
types''as to which a LBR was m ade,and that remained true atthe tim e ofher
deposition. 1tL at2751:7 - 2752:5. Serious credibility issues existw hen a w itness
signiticantly changes her testimony from that given as a sworn Rule 30(b)(6)
w itness. Sim ilarly,testim ony by M s.K im bley-cam panaro,A H CA 'S Tam pa-area
program director, directly contradicted her em ail, PX 203, w hich found
l04
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dermatologisf').
23 1.Third,A H CA area adm inistrators'testim ony w as based on com plaints
they received about difficulties in accessing care. If they did not receive
com plaints,because beneficiaries orproviders did notcontactthe area offce,they
the lack of a specialty access problem . A lbury on l1/15/2011 R ough Tr.at 121.
This is especially true given docum entary evidence from the sam e area office
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adm inistrator,testified she personally was not aware of complaints about access
problem s and thatan adequate num ber ofspecialists w ere enrolled in the M edicaid
program . But M s.Gray adm itted on cross exam ination that she had correctly
w ritten thatthe realissuesw ere the w illingness ofthose specialiststo see M edicaid
patients,and thatlow pay and billing difsculties w ere the reported reasons fortheir
l06
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8/11/2010FinalTr.at3883:4-24(testifying to statementofSec.Agwunobi).
236. M r. Snipes confirm ed that these LBRS retlected the views of the
extremely seriously'' and dsdo their best to give (the legislatureq accurate
inform ation.'' K idder on 5/20/2010 FinalTr.at2741:4-6. The LB R S w entthrough
a review process by a num ber ofindividuals and bureaus inside A H CA ,including
the secretary. They were then reviewed by the governor'soffice and were listed as
one ofthe priorities for legislative action. PX 719 (for 2009-2010 fiscalyear,
physician specialty fee increase w as num ber one A H CA priority in G overnor
107
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think that's fairly w idely recognized in the State ofFlorida.'' Posner on 10/28/2008
108
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240.D r. Silva,w ho had approxim ately 20% of her practice w ith M edicaid
patients, also testified that she has trouble referring M edicaid patients to
derm atologists, EN T S, ophthalm ologists, orthopedists, endocrinologists, general
surgeons, rheum atologists,and infectious disease specialists,am ong others. Silva
insurance patients can be seen w ithin one to tw o w eeks. 1d.at 2779:17 - 2780:8.
In rebuttal testim ony, D r. Silva confrm ed recent difficulties and travel tim es
experienced by M edicaid patients she refers to specialists, such as allergists,
derm atologists, and endocrinologists, difculties not experienced by her private
patients. Silva on 1/19/2010 Rough Tr.at 140.
surgeons w ould only see M edicaid patients w ith lim ited diagnoses.1d.at2839:311. By contrast,there w ere ddno barriers'' w ith respect to com m ercially-insured
patients. 1d. There w ere no pediatric neurologists in Palm B each C ounty w illing
to accept M edicaid patients, requiring those patients to travel to M iam i to seek
child on M edicaid into the hospitalto receive cardiac care that could have been
m anaged in a low-cost outpatientsetting if the child's M edicaid 11M 0 plan had
32IrecognizethatDr. Cosgroveusual
lycalledthefirstthreetofoursgecialistsonherlist,
and havetaken thislim itation into accountin assessing theweightofhertestlmony.
109
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children w hose broken lim bs w ere only put in a splint and not a cast,w hich D r.
Isaac characterized as im edicalneglect.'' lsaac on 8/11/2010 FinalTr.at3869:1020. O ver the past few years,D r.Isaac has been unable to refer M edicaid patients
to specialists in orthopedics, neurosurgery, derm atology, or psychiatry. 1d. at
3873:3-23.
243. O ther PCPS have also experienced trouble referring children on
M edicaid to specialists- an issue that those w ith private insurance do not face.
33:5,99:12 - 100-8.
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paid approxim ately $88 per encounter;in 2007,the average encounter cost was
$135,and M edicaid paid approxim ately $85.1d.at3187-89. ForaM edicaid child
patient,Tallahassee ENT lostan average of$45-$50 perpatientin 2006 and 2007.
1d.at3190:5-17.
Beach area seeing M edicaid patients in an offce setting and thathe is presently
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will see,requiring these patients to drive three hours or m ore for care. 1d.at
1638:2-12. For pediatric neurology care,the w ait for M edicaid patients is tw o to
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251. For FY 2007, of the approxim ately 1.6 m illion children eligible for
dental services through Florida M edicaid,only 343,000 received any dental care,
according to the CM S 4 16 reportA H CA subm itted in A pril of 2008. See PX 8
the nation. PX 440 at 52-53. Fiscal year 2007 w as not an aberration. For FY
2006,Florida's M edicaid dental utilization rate w as also 21% , w hich tied it for
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under 18 from fam ilies w ith incom es above the poverty line had a dentalvisit at
leastonce during a lz-m onth period. Thatfigure rose to 26% and perhaps as high
as 73% for fam ilies w ith incom es above 200% of the poverty line,according to a
@ Florida's M edicaid reimbursem ent rates are very low com pared to
other states,c.g.,PX 80,PX 85;PX 88,PX 155;PX 718.See
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dental care.'' PX 80. The testim ony about these LB RS is consistent. See, e.g.,
Sharpe on 11/16/2010 FinalTr.at 4945:18 - 4949:8;4952:16 - 4953:19;4956:16
-
verification from one year to the next. Even if true,how ever, it is clear that the
percentage of licensed dentists enrolled in and participating in Florida M edicaid
has declined. A H CA 'S ow n interrogatory responses dem onstrate thatthe num ber
ofgeneraldentists w ith 100 orm ore paid claim sfortreating children declined from
616 to 377,a drop ofm ore than 3824,from FY 2003 to FY 2007. PX 739 atTable
During the sam e tim e period,the number oforalsurgeons with 100 or m ore
paid claim s for children fell m ore than 30% and the catchall category of other
dentists plum m eted from 130 to 42,a decline of67% . f#.
reim bursem ent rates. A 2004 study by the A m erican D ental A ssociation, w hich
A H CA relied upon w hen drafting its LBR S,show ed thatFlorida ranked 48th in the
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falls below the 50th percentile of providers' fees in the m arketplace, create a
presum ption of noncom pliance w ith both these statutory requirem ents. Lack of
access due to 1ow rates is not consistent w ith m aking services available to the
M edicaid population to the sam e extent as they are available to the general
Arnold,gave a speech atthe 2007 M edicaid Accessto Specialty Care Summ it,in
which he presented charts showing thata sm allfraction ofdentists participated in
116
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M edicaid and even fewer actually billed for M edicaid services. St.Petery on
12/8/2009 Final Tr. at 240:3 - 245:15. D ocum ents show that only 7.8% of the
261. M ore recently, AHCA recognized that even excluding the children
enrolled in prepaid dentalplans,M edicaid 14M O s,and PSN S that provided dental
care, 834,651 children enrolled in Florida M edicaid had not received any dental
care in atleast six m onths,even though the periodicity schedule calls forthem to
have a dentalcheck-up every six m onths. PX 150,PX 790.
22;2730:6-9. In a Novem ber of2006 em ail,she wrote M edicaid reim bursem ent
rates w ere llextrem ely low ''and stated: S-l-his is a serious barrier to dentalcare and
is causing problem s with accessto dentalcare acrossm uch ofthe state ....'' PX
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reim bursem entrates. 1d.at 3933:7-11. Few er and few er dentists are enrolling in
Florida M edicaid and treating M edicaid beneficiaries. 16L at3934:18-25.
reporttheir HED IS results for annualdentalvisits for m em bers age 2 through 21.
Florida M edicaid l'lM o s in both program s score poorly com pared to M edicaid
l'
IM o s nationally. The w eighed m easure of the Florida R eform lIM o s is
15.1955% and the national m easure for llM o s is 42.5% , according to a 2007
118
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rebuttal testim ony, she testified that these problem s continued. C osgrove on
1/31/2012 Rough Tr.at 147-152.
268.D r.Silva testifed that he does not know of any dentists w ho w ill see
M edicaid kids for bottle rot or deep cavities. Silva on 5/20/2010 Final Tr. at
2768:1-2;2794:16 - 2796:9. N or does she know of any dentists in H illsborough
County accepting new M edicaid patients. 1d.at2819:20-24;2820:1-18.
269.D r.Schechtm an testified thatm ostofhis M edicaid patients do notsee a
dentist. 1d.at2845:18 - 2846:5;2846:6-18.
270. D r.N orthup testified that there are w aiting lists of several m onths'
provider in the four-county area specifically seeing pediatric patients thatw illtake
271.D r.N orthup som etim es pays dentists rates above the M edicaid rates to
treat CM S children because that ddis essentially the only w ay w e've been able to
obtain access to dentalcare for those children.'' 1d.at 1605:20-22; 1606:1-4. D r.
N orthup supplem entsthe M edicaid ratespaid to dentists w hen a child needsurgent
care and calm ot w ait the tw o to three m onths it otherw ise w ould take to see a
dentist. 1d.at 1607:18 - 1608:1.
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because Stthe reim bursem entin Florida w as m uch low erthan itw as in Texas atthe
tim e.'' 1d.at3789:25 - 3790:2. Som etim es,parents of M edicaid children com e to
her offering to pay herbecause they cannottsnd a M edicaid dentist. 1d.at3791:24
-
3792:8. She has difficulty m aking referrals because there are so few dentists in
the area w ho accept M edicaid, and m ost of those dentists do not accept new
M edicaid patients in hernew practice because even with a 48% increase,the gap
betw een the fees she charges and the reim bursem ent rate is too great. Carr on
patients a year, and the dem and for its services exceeded its capacity. 1d. at
3732:25 - 3733:4; 3725:17 - 3726:20. W hen D r.Prim osch ran the clinic,there
w as a six-m onth w aiting period for children w hose dental needs required
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278.D espite defendants'm ultiple attacks on the use of the CM S 416 report
data to m easure access to dentalcare,the reportrem ains the m ethod w hich CM S
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281.D r.Cralldeterm ined thatFlorida M edicaid rates w ere far below m arket
(Table5andpageE11oftheAppendix).
282.D r. Crall considered the dental service com ponent of the Consum er
Price lndex and detennined that since 2003, inflation w as about 40% , at a
com pound rate,id.at 5138:19 - 5139:15,and thatthe literature show sthat60-68%
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the counties w here rates w ere increased. 1d.at 5147:1-7. In those counties,the
num ber of children receiving dental services increased about 32.3 % in the first
year.1d.at5148:23-25;Crallon 1/26/2012 Rough Tr.at 106-107.
286.D r.Crall also exam ined the effect of the rate increases from 1998 to
2003 in A labam a, D elaw are, Indiana, South C arolina, and Tennessee on the
from 1998 to 2003 for these five states increased by 168% to 446% ,according to
the states' respective C M S 416 reports. C rall on 2/8/2011 Rough Tr.at 70-74.
Those results are illustrated by a chartin his report:
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At
DE
1&
.
@C
TN
FY1998
FY2X 1 2001vs.1
F72* 3 29:3 v*.1998
CM S 416
CMS 416
CMS 416
CMS 416
CMS 416
I/ew ith
% w ith
% with
% w ith
% w itb
DontalViNlts Dfm talVllils DentAlVjsttl A ntalVl*R$ DpntalVlsits
41.659
105,522
253%
1$1.534
3O %
8.428
15.43
1:3*/.
18 269
21PA
47.73
16.$627
337%
212.* 9
446%
9.
9,599
148.i
88.523
141.140
92%
95%
24*,19.,
1...
249.252
2*%
168%
l25
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appointm ents and higher rates of dental disease. W hile this m ay be tnle,such
factors do not detractfrom plaintiffs'contention,rather they favor dentists being
given fnancialincentives to see M edicaid children. Crallon 2/8/201l Rough Tr.
at77-78.
350).
292.Defendants suggested thatDr.Crallfailed to take into accountthat a
num ber of Florida counties are designated health shortage areas. But D r.Crall's
126
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increase of48% stillleaves Florida dentalM edicaid rates severely below adequate
m arket-based rates,''and he continuesto believe these rates m ustbe increased. 1d.
at 88. D r.Crall took the increased rates and com pared them to tw o of the three
m easures w hich he used to evaluate the charges in his initialexpertreporti.e.,the
2008 N D A S com prehensive fee survey and the 2008 data he obtained from the
comm ercial dental plan. 1d. at 88. The follow ing chart shows that after
considering the 48% increase,Florida's dental reim bursem ent is still very 1ow as
127
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Procedure
Code
0012
D0150
D0210
/0272
17033:
01120
(71203
(
71351
:2150
(72331
D2751
(72930
03220
D3310
07140
FL Medicaid
FL Medicald
Rates w/
Rato vs. FL Mediqald 48% Int v%.
2901ADA S Rates Based 2:0$ADA S
FLMedicald Attantk %- onProposed Atlantie%v
G tes
Iles
48% Ine
Iles
$15
5th
$22
33rd
S16
$32
$9
S3O
S14
<1st
<1st
<1st
1st
<1st
$24
$47
$13
$44
$21
5th
4tl1
2nd
4th
<1st
S11
S13
Sdl
S39
N/A
S68
4th
<1st
<1st
*1st
S16
$19
$61
$58
20th
3rd
4th
1st
2nd
3rd
1st
*1st
$101
$74
$219
$40
loth
18th
3rd
1st
$50
$148
S2'
/
Florida M edicaid enhanced rates fallbelow the 331-d percentile and l1 ofthe new
ratesare in the 10th percentile or low er. f#.at92-93. PX 786,ExhibitE.
295.From 2001 to 2010 the dentalcom ponent ofthe Consum erPrice lndex
increased 51% . f#. at 93. PX 786, par. 15. D r. Crall in his supplem ental
declaration concluded that:Sgiven the w oeful inadequacy of the current rates, a
48% increase in Florida's M edicaid dental reim bursem ent rates m ight slow the
exodus of providers from Florida's M edicaid program , but is not sufticient to
induce a significant num ber of providers to enter or re-enter the program ,or to
stim ulate current providers to substantially increase the num ber of children on
l28
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com pany thatacquired AD1called fora PM PM am ountbetw een $5.53 and $7.86,
depending on age and status. D X 355 at 88. Even w ith the 48% dental fee
increase, M CNA 'S blended capitation rate was $11.88, Brown-W oofter on
11/10/2011 Rough Tr. at 66-67, still far below the am ount necessary to provide
adequate dental care for children on M edicaid. These three studies cited by D r.
Crallare the only such studies in the record.
297. M s. Sreckovich has not done any analysis on the effect of the 48%
did not address the dentists' opportunity cost or consider whether actual rates
above variable costs but below average costs w ould m otivate dentists to see
M edicaid patients. Crallon 2/7/2011 FinalTr.at 5334:19 - 5337:6;5342:4-6. ln
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know s ofno evidence and offered no opinion regarding the likely effects ofthe
prepaid dentalplan,which Florida is putting into effectin 2012. Sreckovich on
1/17/2012 Rough Tr. at 48. D efendants did not subm it any evidence by M s.
Sreckovich or otherw ise that the 48% increase in dental rates or the statew ide
299.A fter review ing the evidence and w eighing the expertopinions,1 find
that until the recent 48% increase, Florida's M edicaid reim bursem ent rate w as
am ong the low est in the nation, and not surprisingly, Florida's M edicaid dental
utilization rate w as also am ong the very low estifnotthe low estin the country.
300.I find that w hile a num ber of different factors affect dentists'decision
as to w hether to participate in M edicaid,the adequacy of reim bursem entrates is
the m ostim portant ofthose factors. A significant increase in rates w illresultin a
signifcant increase in provider participation, w hich, in turn, w ill lead to a
substantialim provem entin children'saccessto care.
302. W hile benefciaries and not providers hold the rights provided by
federal law , any analysis of benefciaries' ability to access care m ust take into
130
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reim bursem ent is directly related to access to m edical care by directing thatrates
304. Plaintiffs' expert, Dr. Flint, opined that tthe fundam ental issue that
8/3/2010 Final Tr. at 2949:21 - 2950:5. D r. Flint testified that 27 of 30 peerreview ed studiesthathe review ed supported thisview . 1d. This academ ic research
cam e from different parts of the country, using different research m ethods,
different tim e fram es, and different populations. 1d. at 2951:5-7. W hile this
academ ic research did notdeny the presence of other factors,in D r.Flint's view ,
the professional literature suppol'ts his opinion that doctors w ill put up'' w ith
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gold standard and far m ore reliable than non-peerreviewed work comm issioned
forlitigation.
reim bursem ents. PX 535. W hile this sunrey is m ethodologically lim ited by a
sm all sam ple, it is consistent w ith the other evidence presented. The m ore
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including physician attitudestoward M edicaid patientsand adm inistrative issuesas underm ining thatrelationship. Sreckovich on 1/6/2012 Rough Tr.at83-84. M s.
Sreckovich,how ever,could notdeny- indeed,she adm itted- thatfor a significant
reimbursem ent for physicians and dentists. The LBRS relied upon the causal
relationship betw een increased reim bursem ent rates and increased provider
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fee increase for certain specialists as a solution for a tspecialty provider shortage''
and the tcritical access to care problem .''
M edicaid participantaccess.
313.Federal CM S also recognized the relationship betw een reim bursem ent
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315.A H CA pays 14M o s on a capitated basis and determ ines how m uch to
pay M edicaid I4M oson an annualbasis. The am ountofAHCA 'S M edicaid 14M 0
paym ents is driven in substantialpartby the am ountpaid to providers on a fee-forservice basis through the M edipass system and historical rates of utilization.
316.Florida is one of the low est paying states in term s of its m anaged care
com pensation. 1d.at2999:20 - 3000:4.
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sim ilar recom m endation,after form er Secretary ofAH CA Dr. Agw unobicalled
320.The three largestM edicaid l-1M O 's operating through M edicaid Reform
in Brow ard County in 2008 had approxim ately 50% ofthe M edicaid enrollm ent in
that county. Buttw o years later,none ofthe three plans rem ained in operation in
the county. 1d.at 182-85.
321.A H CA 'S application to extend the w aiver for M edicaid Reform w ithin
the five counties in which it is currently operating was granted for three years.
Sreckovich on 1/18/2012 R ough Tr.at 51-52. B utFlorida's application to expand
M edicaid Reform statew ide has not at the present tim e been approved by the
federalgovernm ent. Copa on 4/5/201l R ough Tr.at 128.
322. Children enrolled in M edicaid HM O s suffer from the sam e lack of
l36
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324.A H CA 'S m onitoring process of 1-IM o s fails to show that children are
receiving the care to which they are entitled under federal law for three
fundam ental reasons. First, though there is extensive testim ony regarding the
m onitoring process in the record, there is very little in the record about the
dem onstrate thatthe doctorsw illsee the children atall,1etalone prom ptly.
326. Third, there is virtually no evidence and certainly no system atic
evidence in the record that any M C O s w ere hitw ith a substantialfine,or expelled
from the M edicaid program for failure to provide care to children on M edicaid or
m eetany contractualrequirem ents relating to the provision of care. Thus,there is
virtually no evidence thatA H CA has used its pow er to sanction 14M o s to ensure
W oofter on 11/8/2011 Rough Tr.at 131-32. W hile she testified thatAHCA had
issued some finesagainstI-1M os forfailing to m eeta state requirem entfora 60 %
screening ratio forchildren continuously enrolled in the 14M 0 forsix m onths,she
had no infonuation regarding the am ounts ofthe fines. 1d.at118. AHCA did not
issue any fnes against1-1M os for low child health check-up screening ratesuntil
2008,years after this action began. Brow n-W oofter on 10/18/2011 Rough Tr.at
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l-IM os do not have trouble accessing prim ary or specialty care, and that any
trouble w ith specialty care is lim ited to a few individuals. Brow n-W oofter on
Florida children are eligible for but not enrolled in the M edicaid program . 2009
Florida K idcare C oordinating C ouncil Report. PX 682 at 2. Tw enty percent of
applications, elim inating m ost of the offce locations at w hich individuals can
apply in person for M edicaid coverage. PX 238. Fifty-seven percent of D CF
services centers w ere elim inated betw een 2004 and 2006. N ieves on 5/17/2010
FinalTr.at 2098:20 - 2099:1. These changes,accom panied by cuts in personnel,
36 w hile her deposition testim ony focused on the fee-for-service com ponentofM edicaid
not the HM O com ponent, there is overlap betw een the providers enrolled in fee-for-service
M edicaid and M edicaid H M O s,testim ony of Brown-W oofter on 10/25/2011 Rough Tr.at 100,
and no testim ony as to w hy M edicaid HM Os,whose per capita com pensation rate is driven by
the fee-for-service rates,w ould be able to provide bettercare than the M edipassprogram .
138
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were enacted not because they were viewed as improvem ents but rather due to
budgetcuts. Lew is on 10/20/2010 FinalTr.at4602:25 - 4603:14.
ln 2007, an analysis by A H CA of the revised application system
333.ln addition,D CF data indicated thatbetw een June 1,2004 and M arch 1,
2005,applications w ere consistently processed above the designated tim e standard.
PX 238 at7.
the application guide (DX 160), runs in excess of 50 pages of screens that
M edicaid applicants m ust navigate. N ieves on 5/17/2010 Final Tr. at 2105:2 -
2106:4. Because it is a com bined application in which fam ilies m ay apply for
m ultiple cash and in-kind assistance program s,there are lengthy sections requiring
139
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answers on assets and expenses not needed for the determ ination of a child's
M edicaid eligibility. Complex term s,for example,are found in questions asking
about liquid assets''and ilife estates.'' An applicant must gather a significant
am ountofrecordsto com plete the application. And,by virtue ofbeing an online
application,basic com puterliteracy isrequired
individuals who start the online application and do not complete it, collect
dem ographic inform ation on them , or determ ine why they fail to complete the
application. Poirier 10/5/2011 Rough Tr.at3-7,6-7 33. D CF doesnotknow how
m any people startbutfailto finish the application.1d.at 12.
338.ln addition to the com plex application and the difficulties in obtaining
help to com plete the application, Florida has elim inated its prim ary outreach
l40
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program for M edicaid. U ntil 2003, Florida dhad an aw ard-w inning outreach
program ''recognized by federalCM S as a m odelfor other states. PX 700 atD O H
federalgovernm ent. f#. The outreach program included: statew ide m ulti-m edia
cam paigns in English, Spanish, and Creole on television, radio, bus cards, and
billboards;free distribution ofapplicationsand prom otionalbrochures,posters,and
booklets; 17 regional outreach program s responsible for recruiting and training
com m unity partners; data driven m arket research, county level enrollm ent data
reporting, and tracking; assistance for fam ilies w ith enrollm ent and coverage
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coordinator when she was deposed in 2008,w as not aware of any PSA airing
recently anyw here in the state on either radio or television. B oone on 10/21/2008
blood lead poisoning ddm ighthave been on a radio station.'' 1d. Thathypothetical
PSA is the only one in existence in the volum inous record in this action. D X 492.
Rather than airing on the radio or television, A H CA 'S PSA S are show n on
w ere child health bus billboards,and even then,the billboards only appeared on
busses in one city. B oone on 10/21/2008 D epo.D esig.at67:9-20.
142
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349 atDOH 00078171;PX 350 at19-20;PX 682 at2;PX 697 at16;PX 699 at18;
PX 700 atD O H 10000478.
outreach program s are required. Indeed,an AHCA staff analysis indicated that
approxim ately 75% of children from fam ilies w ith incom es under 200% of the
federal poverty level w ere ideal candidates for outreach efforts to increase
enrollm entin existing program s. PX 240.
344. O ne exam ple of A H C A 'S inadequate com m itm ent to outreach is its
dentalrem inder letter. A H CA used to send letters rem inding parents w ho had not
taken their M edicaid child to a dentist for som e tim e to do so. A H CA stopped
doing thisin 2000. Boone on 2/24/2012 D epo.D esignation at31:10-19,PX 441 at
Parents becam e upset when they could not find a dentist willing to see their
children. B oone on 8/28/2008 D epo.D esig.at33:3-12. A H CA even told federal
CM S that ithad not actively m arketed its dentalprogram to recipients for four to
five years because of the few num bers ofdentists participating in M edicaid and
because itw as often difficultforthose seeking treatm entto find a provider nearby.
Sharpe on 2/8/2011 Rough Tr.at 184.
345.M s.B oone adm itted thatthe letters did help increase utilization. Boone
on 8/28/2008 D epo.D esignation at 32: 14-19. But for years,A H CA did notsend
143
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visit, federal CM S noted that Florida had sent reminder letters until 2000 and
recom m ended that Florida again send dental rem inder letters to tparents of
beneficiaries w ho have not received periodic dental services.'' PX 441 at 6-7.
A H C A stated in its response that M edicaid's new fiscal agent began on July 1,
2008,and in Ssthe very nearfuture''ittsw illw ork w ith the new fiscalagent''to send
outdentalrem inderletters.1d.at7.
347. Several years later, how ever, w hen M s. K idder testified on M ay 31,
2011, she acknow ledged that AH CA had still not begun sending out dental
rem inder letters. K idder on 5/31/2011 R ough Tr.at 107-108. She said the letters
w ould likely go out soon.
entitled to dentalcare through M edicaid. See supra at! 30. And S.B.did not
know that she was entitled to free transportation to doctor's appointm ents and
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V Il.C O N C LU SIO N S O F LA W
1 conclude that Florida's M edicaid program has not com pensated prim ary
physicians or specialists at a com petitive rate as com pared with either that of
M edicare orprivate insurance payors.
further conclude that Florida's stnlcture for setting physician
reim bursem ent fails to account for statutorily m andated factors in the M edicaid
A ct, including the level of com pensation needed to assure an adequate supply of
physicians so as to discharge the m andate to provide EPSD T servicesor setratesat
incurred costs or w hat is needed for com petitive rates thatare sufficient to attract
m edicalproviders.
A system w hich m andatesbudgetneutrality asthe determ ining factorin ratesetting, w ithout consideration of the factors required by federal law , does not
are sufficient to attract prim ary and specialist physicians to treat M edicaid
children.
term inated from M edicaid oftheirrights to EPSD T care and any needed follow -up
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care under j 1396a(a)(10) and jj 1396a(a)(43)(B) and (C) and their rights to
m edical care under the R easonable Prom ptness and Equal A ccess provisions of
Title X IX .
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Because one-third of the enrolled children are not receiving any of their
expected preventative care each year,I also conclude thatthey have not received
care in accordance w ith the Reasonable Promptness requirem ents ofthe M edicaid
lead screenings is extrem ely low ,notw ithstanding the factthatpartofFlorida has
an aging housing stock,w hich m eans children are m ore likely exposed to leadbased paint.
and specialists is credible, They are testifying based on their own personal
experience and actions. D efendants did not call a single prim ary physician or
specialistto counter this testim ony. The testim ony ofplaintiffs'm edicalw itnesses
is consistent w ith the survey evidence and A H CA 'S adm issions that there is a
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I conclude that children on M edicaid have not been provided the EPSDT
guarantee of access to care for treatm ent of conditions identifed based on the
A H CA surveys show ing serious shortages ofspecialistcare forM edicaid,A H CA 'S
adm issions,the LBR S,and the testim ony ofa num ber ofm edicaldoctorspracticing
throughout the state. Children on M edicaid have to travel to other areas of the
state and/or w ait for several m onths to obtain care. W hile there are certain
specialists and certain locations w here issues of access- and reasonably prom pt
access- m ay not be a problem ,the evidence presented leads m e to find that the
issue extends throughoutthe state and across m any specialty types. M oreover,the
evidence retlects that w hile a particular specialty problem in a given area m ay
specialty care that during the tim e covered by this case,Florida has not m et the
that care as required under Sections 43(B) and 43(C) of the M edicaid Act.
M emisovski, 2004 W L 1878332, at *50-56 (finding violation of 42 U.S.C.
1396a(a)(43)(C)relatingto theprovisionofEPSDT correctiveservices).
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(30)(A).
B ased on the fact that 79% ofthe children enrolled in M edicaid are getting
no dentalservicesatall,1agree w ith D r.CrallthatM edicaid children in Florida are
not receiving dental services w ith reasonable prom ptness. C rall on 1/26/2012
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182-186. A n increasing num ber of other states have setM edicaid reim bursem ent
rates at or very near M edicare reim bursem ent rates 1d. at 191-92. M oreover,
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forproviders is a key factor in determ ining the capitation rate paid to l-IM O s,and
for determ ining how m uch H M O s can,in turn,pay their providers. A ccordingly,
inadequate fee-for-service reim bursem ent rates result in inadequate com pensation
by M edicaid H M O sto theirproviders.
Based on the H ED IS reports,the m ini-cM s 416 reports, as w ell as other
docum ents and testim ony from providers,I also conclude that the sam e problem s
that plague fee-for-service M edicaid- failure to provide w ell-child check-ups, a
43(c)oftheM edicaidAct.
There is also extensive record evidence that leads m e to conclude that
(30)(a)asrequiredundertheM edicaidAct.
Federal law requires states to effectively inform all EPSD T eligible
individuals or their fam ilies about the availability of EPSD T services,how those
services m ay be obtained, that those services m ay be obtained at no cost to the
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Olszewski, 454 F.3d 532, 543 (6th Cir. 2006). The plain language of the
regulations,com bined w ith the case law supporting this interpretation,com pelthe
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families) about the EPSDT program,'' and to conduct outreach in tclear and
nontechnical language'' that provides inform ation about the benests of
preventative care,the services available under the EPSDT program ,how those
services m ay be obtained,thatthe services are available atno costto children,and
/>
A dalberto Jordan
United StatesD istrictJudge
Copy to:
A llcounselofrecord
153