Filed Date: Sept. 1, 1993
Case Ongoing
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On September 1, 1993, two indigent mothers brought this suit in the U.S. District Court for the Eastern District of Texas on behalf of their children, and on behalf of all persons under the age of 21 in the state of Texas who were eligible for the Early, Periodic, Screening, Diagnosis and Treatment Program ("EPSDT" or "the Program"). The Program is a Medicaid program which provides regular physical and mental health screenings to indigent children. The plaintiffs, represented by the Center for Legal and Social Justice, Texas Rural Legal Aid, Texas Rio Grande Legal Aid, and private counsel, sued the Texas Department of Health and the Texas Human Services Commission under 42 U.S.C. § 1983 and alleged that because of the state's failure to effectively advertise and efficiently administer EPSDT, their children's health suffered. The plaintiffs asked that the court certify their class, declare that Texas violated the federal Medicaid Act, and enjoin Texas from violating EPSDT standards, as well as order that Texas provide the plaintiffs with attorney's fees.
According to the plaintiffs' complaint, EPSDT is one of Congress' most important initiatives to improve the health of indigent children. It is also a mandatory program. Because the Program is a mandatory Medicaid service, states must administer it in order to get Medicaid funding. As part of its Medicaid's minimum requirements, states must advertise and administer physical and mental health screens to a certain percentage of the indigent children in the state. The plaintiffs asserted that Texas did not appropriately administer the Program, failed to meet the minimum participation requirements prescribed by the statute, failed to inform eligible citizens about the availability of the Program as prescribed by statute, failed to appropriately provide mental health services and treatment, failed to provide case management services, and, finally, failed to ensure that EPSDT services were available across the state. Because of the statewide nature of the problem, the plaintiffs asked that the court certify a class of "present and future Texas Medicaid recipients who are eligible for EPSDT services because they have not reached the age of 21."
Following the plaintiffs' complaint, the defendants filed a motion to dismiss or in the alternative, motion for summary judgment on November 3, 1993. The defendants argued that the plaintiffs were not deprived of any right guaranteed by the constitution because citizen participation in EPSDT is voluntary. Second, the defendants argued that plaintiffs did not have a private right of action to enforce participation goals on the part of the defendants. Third, defendants argued that because an injunction would, in essence, force them to make state policy, an injunction was improper. Finally, the defendants asked that the two state agencies, the Texas Department of Health and the Texas Human Services Commission be dismissed because of Eleventh Amendment immunity.
On June 7, 1994, the court granted the plaintiff's motion for class certification. Approximately two months later, on August 10, 1994, the court granted in part and denied in part the defendant's motion to dismiss, though most of it was denied. The court agreed that the state agencies had immunity from the lawsuit, but disagreed on everything else, stating that the plaintiffs had standing despite the voluntary nature of EPSDT, and that they had a private right of action because 42 U.S.C. § 1983 not only gives a plaintiff the ability to sue for a constitutional right, but also gives them an ability to enforce a right defined in a federal statute. The court agreed that the state agencies were immune from lawsuit, but asserted that it was completely appropriate to sue the heads of the agencies in their official capacity.
Following the denial of the motion to dismiss, the parties were involved in extended negotiations until finally, on February 20, 1996, they arrived at and filed a consent decree. The decree stipulated that the state of Texas was to reorganize the department of health in order to more efficiently administer EPSDT and that departments were to do a better job at reaching out to eligible participants by making numerous written and oral communications, as well as making a conscious media effort to educate citizens about the availability of the Program. The settlement also stipulated that the defendants needed to keep close records of persons who missed appointments and checkups in order to keep indigent children in the Program. If participation in the Program was too low, or if statewide indicia of health were not met, the defendants were to make plans to fix those problems, which would ultimately be approved or rejected by plaintiffs. The records were to be presented quarterly. Another effort of the Program was to improve access by simplifying paperwork, providing accurate referral lists of Medicaid providers, and making the transportation assistance Program more user-friendly. Defendants were also required to create a plan that made case management available state-wide.
For over two years, the case was relatively quiet—the docket was only active when defendants presented their quarterly reports on the success of the Program—but on November 10, 1998, the plaintiffs filed a Motion to Enforce the Consent Decree, restarting the entire litigation. This motion alleged that the defendants had not done a good enough job at meeting their outreach goals: though more children were enrolled in the Program, the plaintiffs still believed that participation was well below expected levels and many children were still not receiving the required medical and dental checkups. In fact, participation in a key demographic-young people aged 15-20-actually dropped following the consent decree. Defendants also failed to provide managed care to eligible participants. Though it was within the consent decree to contract the managed care to other companies, the plaintiffs argued that defendants still retained the ultimate responsibility in making sure that class members received the managed care to which they were entitled. Finally, defendants were tasked with creating "Corrective Action Plans" to help lagging counties keep up with improvements made in the rest of the states. Though there were plenty of lagging counties, the defendants only managed to create one corrective action plan in two and one half years. The defendants also failed in some of their record-keeping responsibilities.
In light of the defendants' alleged failures, the plaintiffs asked the court to permit the plaintiffs to conduct discovery, and, after hearings and notice, find that the defendants had violated the decree and the relevant law. The plaintiffs also asked that the court enter remedial orders to resolve the problems associated with the violations, and also allow the defendants time to address said problems.
On August 14, 2000, the court published a memorandum opinion, finding that the court could force the state of Texas to comply with the consent decree. The lengthy opinion found that the defendants had violated numerous portions of the consent decree; the court found that (1) the outreach system was not effective, (2) portions of the reporting system regarding checkups were either nonexistent or ineffective, (3) the managed care system was unsatisfactory and was managed poorly, (4) the toll-free help line was not well-staffed, (5) case managers were underutilized, and (6) health care providers remained uneducated about the Program. 109 F. Supp. 2d. 579.
On September 11, 2000, the defendants filed a notice of appeal in the district court. On September 25, 2000, the defendants filed a motion to stay all injunctive relief pending the outcome of their appeal. On October 10, 2000, the court denied the stay, citing the fact that many Texas children relied on the injunction to receive health care, and that the defendants "narrow, crabbed interpretation of the consent decree . . . would only serve to restrict and dilute the rights of the children covered by it." 2000 WL 33795091. But on October 18, 2000, the Fifth Circuit granted the defendants' motion to stay, citing the "public interest."
On July 24, 2002, the Fifth Circuit Court of Appeals issued its judgement. The Fifth Circuit vacated the District Court's judgment. First, it stated that "violation of a federal statute, by itself, does not entitle a plaintiff to relief under [42 U.S.C.] § 1983." Instead, the plaintiffs needed to assert a "right," not simply the violation of a "law." The Fifth Circuit also cited Eleventh Amendment Immunity as a further limit on the ability of a federal circuit court to enforce anything that was not a federal "right." With the limitations of federal courts in mind, the Fifth Circuit said, the "plaintiffs have not established any violations of the EPSDT provisions of the Medicaid statute which are actionable under § 1983 and the Ex Parte Young exception to the Eleventh Amendment. 300 F.3d 530. On October 2, 2002, the plaintiffs petitioned to the U.S. Supreme Court.
The district court ordered the plaintiffs on February 3, 2003, to explain why the case should not be dismissed within 30 days. On March 3, 2003, the plaintiffs filed their response. The plaintiffs asserted that their motion to appear before the Supreme Court was pending, and that, because the Fifth Circuit had not ordered the case dismissed, the District Court had leeway to hold on to the case. The district court agreed to hold onto the case.
On March 23, 2003, the Supreme Court granted certiorari on two questions: first, whether states forfeit Eleventh Amendment protection when they enter into consent decrees, and, second, whether states must violate federal law and not simply a consent decree in order to be subject to federal court judgment.
The Supreme Court entered its judgment on January 14, 2004. In a unanimous decision, it decided that states do forfeit Eleventh Amendment protection when they enter into consent decrees, and that when states violate those consent decrees, they are subject to the federal court's judgment. The Fifth Circuit's decision was thereby reversed, and the case was remanded for further proceedings. 540 U.S. 431. On July 2, 2004, the Fifth Circuit remanded the case to the district court to settle what essentially had become a dispute about contract interpretation.
On October 29, 2004, the defendants filed a motion to set aside the judgment of the district court regarding the 1996 consent decree. They stated that the prospective nature of the consent decree was no longer appropriate considering that Texas already spent more money on the EPSDT Program than any other state. The defendants asserted that the ends of the Program had already been met.
Following the entry of the motion to set aside judgment, the parties engaged in a flurry of briefs and reply briefs, and they entered into discovery at the beginning of 2005. On May 24, 2005, the defendants withdrew their motion to set aside judgment, just before a scheduled June 6 hearing on the subject. The defendants stated that the consent decree in 1996 was not "a final judgment," and therefore, the defendants did not need to comply with its orders. On May 29, 2005, after discovering that the Rule 60(b) motion was, in fact, appropriate following the Supreme Court's "instant action," the defendants filed a motion to reinstate their motion to set aside the judgment. The motion was granted on June 3, 2005.
An evidentiary hearing was held between June 9 and June 15, 2005, and on August 22, 2005, the defendants' motion to set aside judgment was denied. The court painstakingly went through all of the provisions of the consent decree, deciding which ones could still be enforced by the court. The court concluded that the defendants "failed to prove significant changed factual circumstances warranting revision of the Consent Decree with respect to the [the Program]." 401 F. Supp. 2d 619. On August 24, 2005, the defendants appealed the district court's judgment.
The defendants filed a motion on April 17, 2006, to stay the proceedings in the district court pending their appeal to the Fifth Circuit. On May 4, 2006, the district court granted the defendants' stay.
On July 20, 2006, the Fifth Circuit affirmed the district court's judgment, finding that the state's compliance with federal law did not confer automatic grounds for dissolving the consent decree and also holding that the district court's finding that there was not a material change in factual circumstances necessitating the dissolution of the consent decree was not an abuse of discretion. 457 F.3d 432. On September 7, 2006, the Fifth Circuit denied the defendants' motion for rehearing. The defendants filed a petition to appear before the Supreme Court, but the Supreme Court denied the petition on January 17, 2007.
On January 25, 2007, the plaintiffs filed an amended motion to enforce to consent decree. After discovery and negotiations, on August 10, 2007, the parties filed a Joint Memorandum outlining eleven Corrective Action plans that each party found reasonable. The eleven plans outlined the party's future actions on (1) Case Management, (2) Checkup Reports and Lagging Counties, (3) Checkups, (4) Health Outcomes and Dental Assessment, (5) Managed Care, (6) Outreach and Informing, (7) Prescription and Non-prescription Medicine and Supplies, (8) Provider Supply, (9) Provider Training, (10) Toll Free Numbers, and (11) the Transportation Program. On September 5, 2007, the court decided that the settlement between the parties was fair and adequate. 2007 WL 2667985.
The case lay mostly dormant until May 27, 2010, when the defendants filed a "Motion to Modify the Health Outcomes Measures and Dental Assessment Corrective Action Order to Eliminate the Requirements that Defendants Implement a Corrective Action Plan and Conduct a Second Dental Assessment." Discovery began anew in August of 2010.
On December 31, 2010, the parties agreed to allow the defendants to amend the part of the consent decree which involved check-up letters and when they were to be sent. The amendments to the consent decree were minor and, according to the court, "promoted the goals of the consent decree." The court granted the check-up letter amendments on January 13, 2011. 2011 WL 13157061.
On March 30, 2011, the court denied the defendants' Motion to Modify the Health Outcomes Measures and Dental Assessment Corrective Action Order. The court noted that, though the defendants had made strides in achieving the objectives of the consent decree, under no circumstances had the objectives been met. Therefore, the motion to modify was denied. 775 F. Supp. 2d 930.
On August 6, 2012, the plaintiffs filed a Motion for Further Action regarding the "lagging counties" provisions of the corrective action order. On August 23, 2012, the defendants filed another Motion to Modify. This time, the defendants hoped to eliminate the portions of the consent decree that dealt with "lagging counties," or counties that were behind on their healthcare goals due to the sparseness of healthcare providers in the area. The defendants asserted that other decisions in Texas had alleviated of them to ensure equal Program participation in all parts of the state. (See Equal Access for El Paso v. Hawkins, 428 F. Supp. 2d 585 (W.D. Tex. 2006).)
On November 29, 2012, the plaintiffs filed a motion to enforce the corrective action order on prescription and non-prescription medications. The motion was sealed. March 23, the plaintiffs filed a separate Motion to Enforce the Provider Supply Corrective Action Order. This motion was also sealed.
On March 28, 2013, after an extensive back and forth and evidentiary hearings, the court granted the defendants' Motion to Modify and denied the plaintiffs' Motion for Further Action. Though participation in the "lagging counties" was still low, the court noted that a specific percentage point for participation was never stipulated in the consent decree, and the court stated that it would not read into the consent decree more than was written. In regards to the defendants' Motion to Modify, the court stated that there were enough changed factual circumstances to allow the defendants to modify the consent decree. The court did not resolve the issue of the Provider Supply or Medication Corrective Action Orders, and hearings and discovery on this issue continued. 2013 WL 12177863.
On December 18, 2013, the court denied the plaintiffs motion regarding the prescription and non-prescription medication corrective action order. The court dissolved the portions of the prescription and non-prescription medication corrective action order that both the plaintiffs and defendants deemed met, as well as two paragraphs that were in contention. The court and ordered that the defendants continue to adhere to the consent decree and remaining corrective action orders. 5 F. Supp. 3d. 845.
On January 15, 2014, the plaintiffs filed an opposed motion for attorneys' fees. The defendants had been paying attorneys' fees for a long period, but this time disputed the need to for attorneys' fees for the year 2012 because of their success in vacating some of the corrective action orders. On September 30, 2014, the court granted the motion for attorneys' fees. On October 28, 2014, the defendants appealed the issue of the attorneys' fees to the Fifth Circuit.
On March 31, 2014, while the dispute over attorneys' fees continued, the defendants filed a Motion to Vacate the corrective action order on Health Care Provider training, even as litigation on the Provider Supply corrective action order continued. On August 25, 2014, the defendants filed another Motion to Vacate, this time hoping to vacate the portions on Dental Assessment in both the Health Outcomes corrective action order and the Dental Assessment corrective action order.
On January 20, 2015, the court ruled on the Provider Supply corrective action order, denying the plaintiffs order and granting in part the defendants motion to dissolve the corrective action order. The court dissolved ten paragraphs of the corrective action order, and stated that the other paragraphs in contention were mostly background information, and therefore did not need to be modified. The court stipulated that the defendants were still required to comply with the remaining provisions of the consent decree and corrective action orders. 2015 WL 13357954.
On February 17, 2015, the plaintiffs appealed the district court's ruling on the Provider Supply corrective action order. Meanwhile, on April 28, 2015, the defendants filed another Motion to Vacate, this time for the Outreach and Informing corrective action order. On March 5, 2015, the Fifth Circuit affirmed the district court's holding on the Provider Supply corrective action order, thereby dissolving the paragraphs at issue. 780 F.3d 320.
On January 22, 2016, the plaintiffs filed another Motion to Enforce Judgment. This time, the plaintiffs asserted that the defendants failed to provide timely medical and dental check-ups, that when participants in the Program did receive check-ups, the check-ups were "incomplete," and that the defendants had failed to comply with the Managed Care corrective action order. On March 4, 2016, the defendants filed a Motion to Vacate the Managed Care corrective action order and the Check-Up corrective action order, as well as related portions of the consent decree. The defendants also filed a motion on December 14, 2016, to clarify and re-vacate the corrective action order.
The parties continued litigating the portions of the consent decree that the court still had jurisdiction over. On January 10, 2017, the parties filed a joint motion to modify the Case Management corrective order.
On April 27, 2017, the Fifth Circuit decided the issue of the attorneys' fees, which had initially been broached in January of 2014. The Fifth Circuit vacated the judgment of the district court, stating that the plaintiffs were still entitled to attorneys' fees, but the district court had to modify the amount of attorneys' fees after determining the plaintiffs' actual "success." 688 Fed.Appx. 249.
On May 23, 2017 the defendants filed an unopposed motion to stay the deadlines in the Health Outcomes corrective action order. That motion was granted on May 31, 2017. Litigation continued, when the defendants filed another motion to stay the deadlines in the Health Outcomes corrective action order on June 21, 2017. The defendants filed a second motion to stay the deadlines on July 20, 2017, and then another one on January 3, 2018. The court denied all but the last of these motions as moot in an oral order on January 25, 2018.
The case was reassigned on March 1, 2018, to District Judge Richard A. Schell. On December 3, 2018, the case was reassigned to Senior District Judge Robert W. Schroeder, III.
Half a year before, on July 2, 2018, the plaintiffs filed a motion for attorneys' fees incurred from 2011 to 2016. Then on April 30, 2019, the plaintiffs filed for attorneys' fees incurred during 2017 and 2018.
On December 11, 2019, the defendants filed to vacate the corrective action order.
On April 7, 2020, the court issued a memorandum opinion, in which it denied the defendants' motion from December 14, 2016, to reinstate the vacating order for the corrective action order (i.e. re-vacate the order). The court found that there was necessary analysis to be done pursuant to the Fifth Circuit's instructions. 2020 WL 1685159. On the same day, the court also denied the plaintiffs' motion for interim attorneys' fees from April 27, 2017. 2020 WL 1695429. One month later, on May 7, 2020, the plaintiffs moved for the court to reconsider its denial of the motion for interim attorneys' fees.
On July 1, 2020, the plaintiffs filed for attorneys' fees incurred during 2019.
The court denied the May 7 motion for reconsideration on July 23, 2020. 2020 WL 8994102. On August 13, 2020, the plaintiffs appealed this order to the Fifth Circuit (No. 20-40541). The Fifth Circuit held on March 26, 2021, that it lacked jurisdiction to review the district court's order denying attorneys' fees and reaffirmed the July 23, 2020, order. 992 F.3d 391. On May 4, 2021, the Fifth Circuit denied a petition for a rehearing en banc.
Meanwhile, in the district court, on October 5, 2020, the court had denied as moot the plaintiffs' 2018 motion for attorneys' fees covering 2011-2016. The next day, it denied the defendants' motion from January 3, 2018, to stay a specific section of the corrective action order.
On May 17, 2021, the plaintiffs filed for attorneys' fees incurred in 2020.
This case is ongoing.
Summary Authors
Megan Brown (8/1/2017)
Edward Cullen (4/10/2019)
Lauren Yu (9/12/2021)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/4531503/parties/frew-v-traylor/
Clement, Edith Brown (Louisiana)
Amaya, Joaquin Jr (Texas)
Barbour, Laura Alicia (Texas)
Batista, Andrea Levya (Texas)
Cloutman, Edward Bradbury III (Texas)
Clement, Edith Brown (Louisiana)
Costa, Gregg Jeffrey (Texas)
Davis, W. Eugene (Louisiana)
DeMoss, Harold R. Jr. (Texas)
Dennis, James L. (Louisiana)
Engelhardt, Kurt Damian (Louisiana)
Jolly, E. Grady (Mississippi)
Jones, Edith Hollan (Texas)
Justice, William Wayne (Texas)
Kennedy, Anthony McLeod (District of Columbia)
Reavley, Thomas Morrow (Texas)
Schell, Richard A. (Texas)
Schroeder, Robert William III (Texas)
Smith, Jerry Edwin (Texas)
Wiener, Jacques Loeb Jr. (Louisiana)
See docket on RECAP: https://www.courtlistener.com/docket/4531503/frew-v-traylor/
Last updated Jan. 28, 2024, 3:13 a.m.
State / Territory: Texas
Case Type(s):
Public Benefits/Government Services
Special Collection(s):
Key Dates
Filing Date: Sept. 1, 1993
Case Ongoing: Yes
Plaintiffs
Plaintiff Description:
Present and future Texas Medicaid recipients who are eligible for EPSDT services because they have not reached the age of 21.
Plaintiff Type(s):
Public Interest Lawyer: Yes
Filed Pro Se: No
Class Action Sought: Yes
Class Action Outcome: Granted
Defendants
Defendant Type(s):
Case Details
Causes of Action:
Ex parte Young (federal or state officials)
Available Documents:
Injunctive (or Injunctive-like) Relief
U.S. Supreme Court merits opinion
Outcome
Prevailing Party: Plaintiff
Nature of Relief:
Injunction / Injunctive-like Settlement
Source of Relief:
Form of Settlement:
Court Approved Settlement or Consent Decree
Order Duration: 1996 - None
Content of Injunction:
Comply with advertising/recruiting requirements
Issues
General:
Access to public accommodations - governmental
Public benefits (includes, e.g., in-state tuition, govt. jobs)
Benefit Source: