NCRCR Interview Series: Salazar v. District of Columbia
Welcome to the National Campaign to Restore Civil Rights Interview Series, a regular examination of the court cases that shape and affect our lives.
As our nation struggles to reform health care, 47 million Americans are stuck without health insurance. For some those who are unable to afford private insurance, Medicaid is the only option. Medicaid is the government health program for low income individuals and families although it has been estimated that 60% of poor Americans are not covered by Medicaid.
In an era in which the Medicaid program is faced with serious cutbacks particularly by financially strap states, it more important that ever to ensure that Americans enrolled in the program remain able to get into court if state should fail to cover necessary services to which they are entitled by law.
There are a number of lawsuits pending in the justice system at this very moment. One of these cases, Salazar v. District of Columbia provides a good example of the important role of the courts in ensuring that people are able to obtain the services Medicaid promises. To better understand the significance of this case, we spoke with Jane Perkins, Legal Director at the National Health Law Program.
PERRY: What is the Medicaid program supposed to do?
PERKINS: The Medicaid was enacted by the Congress in 1965 with a set of principles and provisions to make sure that those families with children, aged blind and disabled people who are low income have medical assistance. It’s also supposed to make sure that these people get rehabilitation and other services that they need to help them maintain or obtain the capabilities for independence and self-care.
PERRY: What is the status of low income children’s health in DC?
PERKINS: Unfortunately children in the District of Columbia are suffering from disproportionately poor health status when you compare them to children in many other parts of the country. Over one in every ten of them are suffering from asthma, over one-third of them who are aged between six and twelve are overweight, ten percent of them have dental problem, over ten of them – their parents say they have behavioral health problem, eight percent of them are estimated to have serious emotional disturbances. Most children on Medicaid are enrolled in managed care organizations (this is the Medicaid phrase for what we typically refer to as a HMO—health maintenance organization) and these managed care organizations are paid ahead of time each month to make sure that children get the health care that they need yet the rates of primary care use for children in the district who are in managed care range from only about one-third of children among older children to just over a half among children between zero to five years old and among those kids, zero to five, over 40% of them had an emergency room visit during the year and quarter of children between ages six and seventeen had an emergency room visit. The reason I am talking about an emergency room visit here is that it is an indication that you don’t have a usual source of care when you see such high numbers of children using emergency rooms and that is curious feature when these children are enrolled in a managed care plan that is supposedly their medical home and is being paid to make sure they get the care they need that will help them overweigh the emergency room.
PERRY: What is the Salazar v. District of Columbia case about?
PERKINS: This case has been around for over 10 years back in 1994, children began to come to legal aid programs and to lawyers who were doing pro-bono work in the District of Columbia, getting calls from families who just weren’t able to get access to or use their Medicaid cards, it was a sought of like “hunting license”, you get the card in hand and then you can go out and hunt for somebody who will take the card or try to figure out how to use the card. When the National Health Law Program where I worked became involved with investigating what was going on, when we went into this investigation, we found that there were many examples of laws that the District of Columbia was failing to implement, as I mentioned at the very beginning Congress passed the Medicaid statute back in 1965 and when it did that it said to states that we are going to give you massive infusion of federal funds but in order to get the federal funds what you have to do is to implement programs that need these minimum standards and requirements that we are setting forth and the District of Columbia just wasn’t doing that. Back in 1994, especially, with respect to children there’s a program that children are eligible for called the “Early and Periodic Screening Diagnosis and Treatment” (EPSDT) we remember it as “Every President Should Destroy Tape”. EPSDT is a comprehensive screening program children who encounter to have problems are entitled to diagnosis and broad treatment for problems that are diagnosed. Unfortunately, after we brought a case and a trial was held, it became very clear that the Medicaid program particularly EPSDT was not being implemented as the federal law requires and so the Judge Kessler ruled in favor of the plaintiff. After that ruling came down, the parties entered into some negotiations and in 1999, the case settled with an order from the court where the defendant (the District of Columbia Medicaid agency) agreed to take a number of specific steps to make sure that the program gets out to children the way that the Congress has intended it to in the federal law. Unfortunately since 1999, we’ve been engaged in a ten year struggle to get the District to live up to its promises.
PERRY: How have recent court decisions helped children get access to the services they need?
PERKINS: Over the years there have been a number of orders in this case from the court, I’ll just mention a couple of them. Just this past February, the district court entered a decision in the case and it involves dental care. The agreement that the parties entered into contains a number of steps that the District of Columbia is supposed to take to make sure that children get the dental services that they need. Unfortunately, here we are in 2009 at that time and 73% of children in the three to twenty year old age group got no preventive dental care at all, 68% of them got no dental services at all and the American Dental Association for example recommends that every child get at least an annual dental exam so you can see that the program has fallen far short of what it should be doing to make sure that children get the care that they need. The court ordered the District of Columbia to live up to its promises and take the steps that it had agreed to take but the District of Columbia did not do that. Instead it argued that the provisions regarding dental care in the order should be vacated and it made a motion under a rule that is recognized in the federal rules in the court where if somebody agrees to something and there are these unforeseen events that make it way to arduous for them to live up to its promise, they can get a change to the agreement, that just makes sense, if you don’t anticipate something when you are going into it, you should have some way to adjust it later on when an unforeseen event occurs. The court looked over the Medicaid agency’s argument and said you haven’t shown us anything that wasn’t anticipated at the time you made this agreement that you haven’t known for many many years and there is just nothing unforeseen or arduous going on here so I am not going to let you get out of this promise that you made. This case is important because recently the US Supreme Court has been issuing rulings, an example is a case called Horne v. Flores that signaled the five member majority’s extreme dislike of institutional reform cases. What it did in that case was to reverse the lower court’s ruling enforcing an order that required schools in Arizona to take steps to improve services for limited English speaking children and after that decision came down, it was such a surprising one because the district court in a lower court and its decision in the case had really called through a massive amount of evidence and reached a very recent decision, so the Supreme Court’s action in undoing that seemed to be a very result-oriented one. This in February is one of the first Medicaid decisions to come down after Horne v. Flores, it’s so important because if you have an agreement you have to have the ability to enforce it and the parties should be expected to live up to their promises. The other case happened last year, again its part of the Salazar case, children sometimes need home health services and what was happening was that children with special health care needs were being denied home health services that their doctors said they needed. One these children, appealed that denial and as part of that asked the District of Columbia to give her a copy of the basis for the denial. The District of Columbia refused to give that saying that it was a copyright trade secret clinical guideline that was owned by a private company with which one of the managed care companies had contracted. So this really took the children in a quandary because they could not really figure out why they had been told no. The Judge Kessler, after a motion to compel the release of that information was made, ruled in favor of those children and said you have to disclose these clinical guidelines otherwise an individual can’t possibly make a response to the action that has been taken. Moreover the release of these kinds of guidelines is so important for families and children with special needs who are dealing with a lot. They have a lot of balls that they are juggling in the air to try to keep life going and if there is going to be gaps or problems in coverage; they need to know ahead of time so that they can plan their lives. This ruling was very important because increasingly state and federal government in the Medicare context, the state Medicare programs are contracting with private companies to run parts of Medicaid. The HMO’s that I mentioned earlier is just a prime example of that and you cannot in fact be irresponsible to presume that Congress would allow a state to disclaim its responsibilities for informing families the basis for the denial and their coverage rules by contracting a way, the right to get information to a private entity. So this aspect of the Salazar case is very important for purposes of assuring accountability and transparency in the government.
PERRY: Why is it important that the courts remain open to people who are denied care by the Medicaid programs?
PERKINS: Well, I think that Judge Kessler, who as I mentioned is the judge in the Salazar case put it best when she originally issued her decision in this case way back in 1994, so I just wanted to close by reading what she said because I think it’s a great answer to your question, she said in introducing her ruling “this case is about people, children and adults who are sick, poor and vulnerable for whom life and the memorable words of poet Langston Hughes – ain’t been no crystal stair, it is written in a dry and bloodless language of the law, statistics, acronyms of agencies and bureaucratic entities, Supreme Court case names and quotes, official government reports etc. But let there be no forgetting the real people whom this dry and bloodless language gives voice—anxious, working parents who are too poor to pay medication or heart procedures or lead poisoning screens for their children, AIDS patients unable to get treatment, elderly persons suffering from chronic conditions like diabetes and heart disease who require constant monitoring and medical attention. Behind every fact is a human face and the reality of being poor in the richest nation on earth.”
PERRY: Thank you very much for speaking with us today!
PERKINS: You’re very welcome!
That was Jane Perkins, Legal Director at the National Health Law Program.
The National Campaign to Restore Civil Rights is a collection of more than 100 civil rights organizations and numerous individuals who came together to ensure that the courts protect and preserve justice, fairness and opportunity for everyone. The campaign focuses on public education and outreach finding ways to get the message out about the impact of court rulings on our communities, our opportunities and our rights.