Medicaid Leadership Group4th Annual Medicaid Summit

Equal Access &EPSDT

Frederick H. Cohen

November 3, 2005

Outline of Presentation

• Description of Equal Access and EPSDT• Facts Presented• Court’s Opinion• Consent Decree

Description of Equal Access

The Medicaid Act provides:– “[The State Medicaid Plan must] provide such methods and

procedures relating to the utilization of, and the payment for, care and services available under the plan … as may be necessary to … assure that payments are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area.” 42 U.S.C. § 1396a(a)(30)(A)

– This means that the State must provide Medicaid recipients with access to health care that is “equal” to the access of privately insured persons.

Description of EPSDT

• Early • Periodic • Screening • Diagnosis and • Treatment

– States are required by the Medicaid Act to provide Medicaid-enrolled children with a specific slate of medical services known as EPSDT services, which includes well-child examinations and immunizations. See 42 U.S.C. § 1396d(r)

– The Medicaid Act further requires that states provide any follow-up or corrective services that may be necessary based upon the results of these screenings. See 42 U.S.C. § 1396a(a)(43)(C)

Parties

• Plaintiffs– Plaintiff class consists of all children in Cook County on

Medicaid (approximately 600,000)– The plaintiff class constitutes approximately ¼ of all children

in Cook County

• Defendants– Illinois Department of Public Aid– Illinois Department of Human Services

Facts Presented - Practitioners

• Chairmen of Pediatrics Departments– Dr. Herb Abelson – Director of Pediatrics, University of

Chicago Hospitals (oncologist)– Dr. Thomas Green – Director of Pediatrics, Children’s

Memorial Hospital (pulmonologist)

• Chairmen of Pediatric ER’s– Dr. Steven Lelyveld – Head of Pediatric ER, University of

Chicago Hospitals– Dr. Steven Krug – Head of Emergency, Children’s Memorial

Hospital

Facts Presented – Practitioners (cont)

• Surgical Specialist– Dr. Barry Newman – Pediatric Surgeon, Loyola University

Medical Center

• Pediatrician– Dr. Mark Rosenberg, Professor of Pediatrics at the University

of Wisconsin and immediate past President of Illinois Chapter of American Academy of Pediatrics

• Dentist– Dr. Ray Jurado, Head of the Dental Division of Children’s

Memorial Hospital

Facts Presented – Retained Experts

• Thomas Darling, Professor of Public Affairs and Policy, School of Public Affairs at the University of Baltimore

– Plaintiffs obtained MMIS data– Dr. Darling analyzed the MMIS data to show the number of

children who received care consistent with the State’s periodicity schedule

Facts Presented – The State’s Data

• The data showed:– A majority of Medicaid-enrolled children in Cook County did

not receive sufficient medically necessary preventive health care as specified under the Illinois periodicity schedule, and a significant number -- one-third or higher -- did not receive any preventive health care at all

– Medicaid-eligible children who were less than one year old should have received 6 screening examinations during their first year of life

• 43% did not receive a single screening examination• 60.6% received two screening examinations or less• Only 8.2% received the proper level of services

Facts Presented – The State’s Data (cont)

• The Data showed:– Children between the ages of 10 days and 11 months

should receive three Haemophilus B (HIB) immunizations: at 2 months, at 4 months, and at 6 months.

• 48.0% of Medicaid-eligible children in Cook County did not receive even one HIB immunization between the ages of 10 days and 11 months.

• Another 9.6% received only one HIB immunization.• 15.2% received only 2 HIB immunizations. • Only 27.2% of all Medicaid-eligible children between 10 days

and 11 months received the requisite three HIB immunizations.

Facts Presented – The State’s Data (cont)

• The Data showed:– Of those doctors who provided primary care to children on Medicaid,

70% provided either zero or one well-child exam – most doctors only treated a child for an acute condition.

Facts Presented – Reimbursement Rates (cont)

• Samuel Flint, Ph.D - consultant in the fields of health policy, health economics, and child health care

– Dr. Flint compared Illinois' Medicaid reimbursement rates for pediatric physician services in Cook County to (i) Medicare rates for the same region; and (ii) private insurance reimbursement rates for the same region.

– Dr. Flint concluded that Medicaid reimbursement rates are approximately half of the Medicare reimbursement rates for the same service, delivered in the same location, by the same provider.

– Medicaid rates compared even less favorably to private insurance rates.

Facts Presented – Cost of Practice

• Dr. Flint analyzed a physician's cost to practice in Cook County

– Medicaid rates do not even cover a physician's cost of overhead - a physician loses money on every Medicaid patient (s)he sees.

– A pediatrician practice relying solely on Medicaid beneficiaries' maximum reimbursements could not survive since Medicaid pays nearly 10% less than the median practice costs.

– Pediatric departments that practice at major hospitals in Cook County have large Medicaid patient populations and are sustaining significant losses each year due to low Medicaid reimbursement rates.

Facts Presented – Medicaid Hassle

• The lengthy payment cycle for Medicaid payments is a disincentive to physician participation in the Illinois Medicaid program.

• Arbitrary claims rejections are a disincentive to providing care.

• The State’s one-service-per-day rule is a disincentive.

• Paperwork hassles are a disincentive.

Facts Presented – Doctor Participation

• The major studies on physician reimbursement rates have concluded:

– Physician reimbursements are the predominant factor in the decision to participate in the Medicaid program at all, to participate in a limited fashion, or to participate fully.

– When Medicaid rates are too low, physicians will opt to treat non-Medicaid children first or exclusively.

• Pediatric practices throughout Cook County have closed to new Medicaid patients, or closed entirely, due to economic problems caused by a high Medicaid pediatric patient population, low Medicaid reimbursement rates and slow Medicaid payment systems.

Facts Presented – Recipients

• Six parents of children on Medicaid told their stories– They described their search for a doctor . . . and their failure

in finding one.– They testified that the State provided referrals to doctors

who wouldn’t take Medicaid.

Court’s Opinion

• Complete Victory – 102 page opinion• The State has violated and continues to violate the rights

of the 600,000 children on Medicaid in Cook County• Parents cannot find health care for their children

Court’s Opinion (cont)

• “The testimony of these doctors was not rebutted and is highly persuasive in establishing the level of access provided to Medicaid recipients. Defendants, in response to this testimony, argue that it only establishes that medical professionals want higher reimbursement rates from the IDPA. To the extent that this argument suggests that the witnesses were biased and, therefore, that the court should place little weight on their testimony, such argument is rejected. The court observed the testimony of these doctors and did not notice even a hint of bias. Each doctor was a highly trained medical professional who had dedicated his life to the provision of medical services to children. Their testimony made abundantly clear that their interest was in the health and well-being of children.”

Remedy Phase - Substantive

• Reimbursement rates– “[T]the rates Illinois Medicaid pays simply do not entice

medical providers to participate in Medicaid and, therefore, fails to afford plaintiffs equal access to medical care.”

– “If rates are the most important factor in determining whether and to what extent to see Medicaid patients, and if Medicaid pays significantly lower than other payer types, then it follows, as Dr. Flint testified, that insufficient access for Medicaid recipients ‘should be expected’ in Cook County.”

Remedy Phase – Substantive (cont)

• Medicaid Hassle– “Several other doctors testified that the IDPA refused to pay

providers for more than one service per day, regardless of the number of services that a child needs or receives. . . Defendants have asserted no conceivable medical reason for such a policy, and no argument was or can be made that a similar restriction was encountered by physicians when they seek Medicare or private insurance payments. These hassles provide evidence supporting that a physician would simply choose not to see Medicaid patients rather than deal with the hassles.”

• Follow-up• Notices

Initial Consent Decree – Strategic Issues

• Court’s opinion sets forth only the flaws in current system

• Initial Consent Decree aims to begin to address those flaws

• Reasons to enter into a consent decree– Eliminates any appellate risk– Minimizes delay in obtaining relief– Creates commitment from all parties to an important policy

initiative– Provides a platform for additional improvements and

monitoring

Initial Consent Decree – Substantive Provisions

•The form of the relief is a Consent Decree, not merely a settlement agreement

– IDPA agreed to comply with the Equal Access and EPSDT provisions with continued judicial oversight.

•Availability Of Providers To Serve Plaintiffs– IDPA agreed to increase the rate of reimbursement for

targeted EPSDT medical and dental services and to pay a per-child EPSDT bonus to EPSDT providers who provide class members with complete EPSDT services.

– IDPA also agreed to implement a physician information, recruitment and referral program.

– IDPA agreed to re-base FQHCs.

Initial Consent Decree – Substantive Provisions

•Study Of Access To Specialists– IDPA agreed to fund a study of access to specialists.

•Encouraging/Facilitating Class Members And Their Families To Use EPSDT Services

– IDPA agreed to conduct a yearly information campaign to publicize EPSDT services and to work with schools, child care centers, the medical and dental societies and others to encourage families to obtain EPSDT services, including dental services, for their children.

Initial Consent Decree – Substantive Provisions (cont.)

• Notice/Information To Class Members And Their Families About EPSDT Services

– IDPA agreed to send Class members and their families additional information regarding EPSDT services, after consulting with a specialist in creating understandable materials.

• Expedited Payments– IDPA agreed to expedite payments to certain EPSDT providers.

• No “One-Service-Per-Day” Rule– IDPA agreed not to limit payments.

• Extensive Monitoring– IDPA agreed to provide a wealth of monitoring data and reports.

CONCLUSION

• Cooperative efforts should be focused on increasing access and achieving better results for children

• The parties have a lot of work ahead to achieve these results

Medicaid Leadership Group4th Annual Medicaid Summit

Equal Access &EPSDT

Frederick H. Cohen

November 3, 2005