Suit says Florida Medicaid fails children with special needs

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Suit says Florida Medicaid fails children with special needs

By Pacenti

01/14/2008 © Daily Business Review

Rita and Les Gorenflo of Palm Beach Gardens adopted seven special-needs children. One son had a tumor in his ear canal. Another suffers from chronic sinusitis and needs specialized treatment. One son has development and orthopedic problems. And another child went through surgery to correct severe scoliosis, a curvature of the spine. When special-needs children are adopted, they become automatically eligible for Medicaid, Rita Gorenflo said. The federally funded program administered by states provides health care to disabled and poor people and children of low-income families up to age 21. The Gorenflos say Florida has not lived up to its end of the bargain. They are plaintiffs in a federal lawsuit filed on behalf of 1.6 million children enrolled in Medicaid. U.S. District Judge Adalberto Jordan in Miami maintained three of the four counts on a dismissal motion last year. The state has until March 27 to respond to the plaintiff’s motion to certify the class, a pivotal hurdle in the litigation. The lawsuit addresses a longstanding complaint by children’s health advocates that Medicaid reimbursement rates are so low that doctors increasingly are choosing not to participate in the program. The lawsuit also attacks the state’s approach to annual checkups. The suit said the state increased its reimbursement to $64.82 in 1996, and the number of checkups quickly doubled to 64 percent of eligible children. But state statistics indicate 44 percent of children entitled to a Medicaid checkup did not receive one and three-quarters were not covered for dental care between 1999 and 2004. It claims children are dropped from Medicaid rolls mistakenly and without family notification, and the state is not paying for a host of mandated preventative services such as physical checkups and basic dentistry. More than 40 percent of all births in the state are covered by Medicaid. “You are talking about shots, you are talking about dental care, which is especially atrocious, and you are talking about specialty care where there is a shortage,” said Stuart H. Singer, one of the plaintiff attorneys from the Fort Lauderale office of Boies Schiller & Flexner. “It’s a broad, systematic problem.” The Gorenflos say they often must travel out of Palm Beach County to find a doctor or specialist who will see their five boys and two girls and accept Medicaid payments. , the son with scoliosis, ended up waiting more than a year for surgery. “During that year, the curvature of his spine increased significantly,” Rita Gorenflo said. “He went through hell.” She was a nurse for 12 years but is now a stay-at-home mom. Les Gorenflo works the night shift for UPS. But their life’s work is their children. They hope the lawsuit will fix Florida’s broken health care system for poor and special-needs children — a system Rita Gorenflo calls pathetic. “My contention is the state of Florida does not provide a level of care for our children on Medicaid comparable to private insurance as mandated by the federal government,” she said. “The state is in denial. They just don’t care about kids.” The lawsuit was filed against the heads of three state health agencies on behalf of 12 children from Miami to the Florida Panhandle and two medical groups: the Florida Pediatric Society and the Florida Academy of Pediatric Dentistry. The state operates four Medicaid programs for children. The lawsuit deals with only two: Title XIX of the Social Security Act and medical services for children with complex health care needs. Boies Schiller’s Fort Lauderdale office has taken the case pro bono along with K. Gihool and Eiseman of the Public Interest Law Center in Philadelphia and Louis W. Bullock of Keefer & Bullock in Tulsa, Okla. “Florida has systematically failed to provide this care to Florida’s Medicaid-enrolled children,” the lawsuit claims. “Because of these violations, hundreds of thousands eligible Florida children have not been furnished any preventative health care services.” According to the state’s own statistics, 554,749 Medicaid enrolled Florida children were furnished no preventative health care, the suits alleges. “We think the fact that more than 500,000 Florida children do not presently receive preventative health care is irrefutable proof that the system needs to be fixed,” Singer said. Similar lawsuits against states have had a mixed fate in recent years, Eiseman said. Children’s health advocates have won battles in Illinois, the District of Columbia and Texas, and another challenge is pending in Missouri. There have been setbacks as well. The 10th U.S. Circuit Court of Appeals in Denver overturned a district judge’s decision a year ago, ruling an Oklahoma pediatric association among the plaintiffs lacked standing. The U.S. Supreme Court refused to hear the case. And victory isn’t easy. In Texas, it took 14 years for a federal judge to back more than $700 million in spending to satisfy terms of a settlement and raising payments to physicians and dentists. The federal government sets reimbursement for some Medicaid services at 90 percent, which is higher than the routine match. The national average is 69 percent, according to the American Academy of Pediatrics. The Miami lawsuit said Florida falls “well below” the standard. Class actions against states can be protracted and difficult to win. In an unrelated Florida case, U.S. District Judge Federico Moreno in Miami dismissed a lawsuit on behalf of foster care children who challenged the state system as abusive and neglectful. Moreno ruled in 2001 that federal oversight of the state’s child welfare system was unnecessary because state judges could adequately protect children’s rights. Officials at the state attorney general’s office, which represents the state health care defendants, refused to comment on pending litigation. But the office took the same approach as in Oklahoma, attacking the suit largely on technical grounds. In its dismissal motion rejected last year, Chief Assistant Attorney General Chesterfield Jr. argued the suit should be thrown out because the medical groups lack standing. The Florida Academy of Pediatric Dentistry was dissolved as a state corporation in 1999, and the other group lacks standing to bring the action on its own behalf. “Essentially, the plaintiffs allege that they have had to devote their lobbying and advocacy resources to ensure that defendants comply with federal law rather than using those resources for some other purposes,” wrote. In a snide footnote, he added: “Plaintiffs might just have easily have (sic) alleged that they have chosen to expend resources to bring this lawsuit, instead of being able to use the resources expended on this lawsuit some other way.” appeared to suggest the doctors were hiding behind the children by citing the denial of access to children’s health care providers and a lack of Medicaid providers and services without tying them to federal requirements. “Plaintiffs do not allege that any member of the organizational plaintiffs (groups) have sustained a legally cognizable injury as a result of the claim,” wrote. The health care of poor and special-needs children is hardly mentioned in the motion to dismiss, except to say there was nothing to suggest children are members of the medical organizations. Jordan’s decision to reject dismissal last February did focus on the children. “The defendants do not contend that the individual plaintiffs lack standing to bring this suit. Rather they argue the organization plaintiffs do not have standing to assert the claims at issue,” the judge wrote. “It is well-established, however, that when one plaintiff has standing to bring all claims in an action, a court need not inquire into the standing of the others.” Jordan dismissed one count claiming Medicaid imposes a duty on the state to assure payments are sufficient to enlist enough providers in an area. The judge said the claim did not have the “unmistakable focus on the benefited class.” The state is risking higher bills later with its current public policy stance, Singer said. “It’s hard to imagine a more cost-effective expenditure than preventative health care,” he said. “The failure of the state to spend resources today on preventative health for children means the state and others will be spending many more dollars on dealing with the effects of those who have not achieved adequate health care in their early years.” Singer puts it distinctly: “Elections are held and won and lost in the short term and not in the long term,” he said. For that reason, Singer doesn’t expect the state to settle. The first mediation session on the case was set for last Friday. “I would be surprised” by a settlement offer, he said. “I think we are in it for the long haul.” Pacenti can be reached at jpacenti@... or at .

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