A Case Study

The Evolution of Medicaid

Medicaid became law in 1965 through Title XIX of the

Social Security Act (42 U.S.C.A. 1396)

It grew out of and replaced two earlier programs of Federal
grants to States that provided medical care to welfare
recipients and the aged.
Although funded by both the federal and state
governments, each State determines who is eligible, the
scope of services, the rate of payment for services, and
administers its own program. While State participation is
voluntary should it choose to participate the States
provisions must comply with the Medicaid Act.

Who Qualifies for Medicaid?

Medicaid eligibility is not determined solely by

economic status. . Medicaid covers only certain

groups of low-income persons who fall into special
categories.
Categories included in Federal Medicaid coverage
Children
Pregnant women

Disabled individuals
Elderly
Blind

An Ineffective State Plan

http://www.mefeedia.com/entry/video-girl-loses-eye-

medicaid-denies-claim/10855074/
Thoughts about the video?
Who do you think is to blame for this situation?
Is it the responsibility of doctors and medical

organizations to donate free care?

How do you think legal aid organizations can help?

Other people not covered under Medicaid

Men under 65
Women unless pregnant

State Plans Must Include:

A state plan must include a comprehensive statement

describing the nature and scope of the States

Program to the secretary of Health and Human
Services for approval
At issue in the case were two provisions:
A state plan must ensure equal access to health care

providers
A state plan must provide access to early and periodic
screening, diagnostic, and treatment services
(hereinafter EPSDT)

Equal Access Provision

42 U.S.C. 1396a(a)(30)(A) ensures all Medicaid

recipients receive pediatric care and services to the

extent that such care and services are available to the
general population
In Memisovski the plaintiffs alleged that state
payments to Medicaid providers were so low that equal
access did not exist

Facts About Equal Access at the

Time of Memisovski
Medicaid paid only 55% of the rate that Medicare paid for

the same service and Medicaid rates are significantly lower

than private insurance reimbursement
Medicaid rates did not even cover a physicians overhead
cost in Cook County
Virtually no pediatric dentists in Cook Country accepted
Medicaid. A dentists practice would fail financially if all
Medicaid patients were accepted
Children on Medicaid rarely got vision and hearing screens
from physicians who provide EPSDT services and were
more likely to see a physician that was not board certified

EPSDT Provisions (42 U.S.C.

1396d(r)(1)(B)
The EPSDT provisions are located throughout the

Medicaid Act and ensure amongst other things:

Timely screenings for medical, vision, and developmental

conditions
The goal is preventative in nature
Screening services must include:

comprehensive health and developmental history including both

physical and mental assessment, comprehensive unclothed physical
exam, appropriate immunization, laboratory tests, lead toxicity
screening, health education, vision services, dental services, hearing
services, and other necessary health care services to correct
conditions discovered by the screening services.

Facts About EPSDT Services

Under the EPSDT program in Illinois, a child should

receive seven appointments by age one, four more in

the second year of life, and continue to receive
screenings, as the child gets older.
45.3% of children in Cook County had no well-child
visits in the first year of life.
Significant failure was found across all categories of
the Illinois EPSDT plan.

Memisovski Plaintiffs
600,000 Cook County Minors
Examples of the plaintiffs experience:
Emergency Room physicians would need to call in favors to
find physicians to provide follow-up care to Medicaid
recipients who presented in the Emergency Room and
required further treatment. These Emergency Room
physicians reached a point where they could only call in so
many favors leaving Medicaid recipients without proper care
Medicaid would reimburse costs for single hernia surgeries. A

Medicaid recipient suffering from a double hernia was forced

to undergo two separate surgeries. This allowed the physician
to be compensated by Medicaid for two single hernia
surgeries because Medicaid would not cover a double hernia
surgery.

Video: Illinois Programs Impacted

by Financial Woes
57 Beds Documentary
http://www.youtube.com/watch?v=AVIVWn7SBHY
Charities & fundraisers are often necessary to keep

programs running
Illinois Representatives have little faith in the system
Questions
Do you think the Illinois population is aware of how

Medicaid is run?
Do you think the state or federal government needs to
take more control?

Timeline of the Case

In 1992 the Legal Assistance Foundation (LAF) files

suit
Initially there were two classes

All children (persons under the age of 18) in Cook County,

Illinois, who, on or after July 1, 1990, have been, are, or will be
eligible for the Medical Assistance Program (Medicaid)
established under Title XIX of the Social Security Act.
Women in Cook County on Medicaid who have been, are, or
will be pregnant. (Class voluntarily dismissed on May 29,
2003)

From 1992 to July 2, 1999 the case was stayed

The case moves from LAF to other organizations

Shriver Center-National Institute on Poverty Law
Chicago-Kent Law School Clinics
Health and Disability Advocates
Defendants newly implemented programs failed

Timeline cont.
Motion to dismiss 2000
1983
11th amendment
Discovery
Trial
Changes in judge and attorneys
1983
Arguments
Testimony
Holding
Consent Decree

Motion to Dismiss
11th Amendment
Bars suits by private parties against a state
Ex Parte Young Doctrine
1983
Blessing v. Freestone

3 Part Test

Judge Lefkow
Denied motion October 17, 2001

Discovery
Informal Discovery
Public interest attorneys have relationship with class members
Searching Hospitals and Emergency Rooms
Modeling after other states

Formal Discovery
Private Counsel is sought (Goldberg Kohn)
Database of Medicaid Paid Claims
Reimbursement Rates

Obstacles with Discovery

Confidentiality
Cost
Vast amounts of data
Experts

Key Players at the Trial Phase

The Attorneys
Defendants maintain same counsel (Attorney Generals)
Plaintiffs forge bond between public interest organizations and private

counsel
Private Counsel (Goldberg Kohn)
Mr. Fredrick Cohen & Mr. David Chizewer Pro-bono case leads to
reimbursement for attorneys fees!
Firm receives national publicity & record setting case
U.S. ex rel. Tyson v. Amerigroup Illinois, Inc.488 F.Supp.2d 719 (N.D.Ill.
2007)
The Judge (Judge Lefkow)
Thoughts on the assigned newspaper article?!
Consent Decree rather than appealing the Judges decision

Judgment on the Pleadings

1983 changes
Gonzaga University v. Doe
Part 1 of the Blessing test
speak with a clear voice
unambiguous intent
rights creating language
Equal Access Provision
Defense Arguments

Not intended beneficiaries

No rights creating language
Aggregate focus not individual rights

42 U.S.C. 1320a-2 and Suter

EPSDT Provisions

Trial Testimony

Testimony
Findings of fact on Equal Access provision

The costs of medical practice in Cook County are 20% more expensive than in downstate Illinois, yet
Medicaid reimbursement rates are the same.

Medicaid paid only 55% of the rate that Medicare paid for the same service and Medicaid rates are
significantly lower than private insurance reimbursement.

Medicaid rates do not even cover a physicians overhead cost in Cook County.

Virtually no pediatric dentists in Cook Country accept Medicaid. A dentists practice would fail financially if
all Medicaid patients were accepted.

Children on Medicaid rarely get vision and hearing screens from physicians who provide EPSDT services and
are more likely to see a physician that is not board certified.
Findings of fact on EPSDT provisions

EPSDT screenings involve comprehensive health and developmental history, comprehensive unclothed
physical exams, immunizations, tests, lead screenings, health education, screenings for vision, dental, and
hearing

45.3% of children in Cook County had no well-child visits in the first year of life.

The plaintiffs enlisted another expert to testify regarding the dissemination of information regarding the
Medicaid and Healthy Kids program. The expert testified that due to the difficulty and length of the material
a significant portion of the population would be unable to understand them

Plaintiffs Arguments
Equal Access Provision
Arguments

The law requires that Medicaid reimbursement rates paid to health care
providers be sufficient to provide Medicaid recipients access to health
care equal to that of the generally insured population;
The arbitrary and capricious manner in which the defendants set
reimbursement rates has resulted in rates that are far too low to result in
equal access to care;
The plaintiffs endure obstacles to finding care not faced by privately
insured patients.
EPSDT Provisions
Effective Efforts to inform
Services
Periodicity Schedule

Holding
The Court found that the defendants were in violation

of both the equal access provision and EPSDT

provision of the Medicaid Act and set the case for
status to discuss an appropriate remedy.

Consent Decree
June 27, 2005 Notice of Hearing to Class Members
November 18, 2005
Parties work together to create a remedial plan

Defendants have help from outside counsel

Goldberg Kohn continues to work
The 61 page consent decree is finally entered
http://www.hdadvocates.org/_files/HDAFiles/Press%20Room
%20Materials/PR%20Memisovski%20Consent%20Decree.pdf
November 29, 2007
Memisovski v. Maram 2007 WL 4232716
Plaintiffs win at a hearing regarding the method to be used to
create a study on access to specialist services by class member and
non-class member children
Mail survey v. audit survey
Present Day
Consent decree continues to be implemented

Changes to the Illinois Medicaid

System
January 2005, Governor Blagojevich drastically

reformed Medicaid developing the Illinois All Kids

Program.
Nations first universal coverage program for children.
All Kids is Illinois program for children who need

comprehensive, affordable health insurance, regardless

of family income, immigration status or health
condition.

Builds off of Illinois state Medicaid and State

Childrens Health Insurance Program (SCHIP) but is

funded exclusively with state funds.

Questions
Does anyone have questions thus far?
Medicaid is a hot topic given the upcoming

presidential race, lets take a closer look at the

candidates views towards Medicaid
Senator McCain
Senator Obama

Current Issues in Politics

Senator McCain:
McCain favors the Health Care Choice Act which would allow
citizens to purchase health insurance nationwide instead of
limiting them to in-state companies, and to buy insurance through
any organization or association they choose as well as through their
employers or buying direct from an insurance company. (McCain is
Right on Interstate Health Insurance, Wall St. Journal, October 1,
2008 )
At the heart of his plan are tax credits - $2,500 for individuals and
$5,000 for families who do not subscribe to or do not have access to
health care through their employer. (McCains Health Care
Proposal, BusinessWeek.com, April 29, 2008)

 Against publicly funded health care, universal health

care, or health coverage mandates.

In an October 2007 statement, McCain said: "In health

care, we believe in enhancing the freedom of
individuals to receive necessary and desired care. We
do not believe in coercion and the use of state power to
mandate care, coverage or costs. (McCains Health Care
Proposal WashingtonPost.com, Oct. 10, 2007)

 In recent news:
Senator McCain would pay for his health plan with
major reductions to Medicare and Medicaid,

a top aide said, in a move that independent analysts estimate

could result in cuts of $1.3 trillion over 10 years to the
government programs. (McCain Plans to Cut Medicaid and
Medicare The Wall Street Journal, 2008)
The nonpartisan Tax Policy Center, a Washington think tank assessed that the plan would allow as many as five million
more people to have insurance

 Senator Obama
Universal Heath Care

"The time has come for universal health care in America [...] I
am absolutely determined that by the end of the first term of
the next president, we should have universal health care in
this country." (Pickler, Nedra, Obama Calls for Universal
Health Care, Associated Press, January 25, 2007)
Obama cites cost as the reason so many Americans are
without health insurance.
Obama's health care plan includes implementing guaranteed
eligibility for affordable health care for all Americans, paid for
by insurance reform, reducing costs, removing patent
protection for pharmaceuticals, and required employer
contributions.
He would provide for mandatory health care insurance for
children.

Video: A Tribute to Medicaid

http://www.youtube.com/watch?v=tq-hXWhk6dI
An individual shares her experiences with Medicaid

via song and dance