Frew v. Suehs

• Decision Date: 30 March 2011
• Docket Number: Case No. 3:93–cv–00065.
• Parties: Linda FREW, et al., Plaintiffs,v.Thomas SUEHS, et al., Defendants.
• Court: U.S. District Court — Eastern District of Texas

775 F.Supp.2d 930

79 Fed.R.Serv.3d 298

Linda FREW, et al., Plaintiffs,

v.Thomas SUEHS, et al., Defendants.

Case No. 3:93–cv–00065.

United States District Court, E.D. Texas, Sherman Division.

March 30, 2011.

Susan Finkelstein Zinn, Attorney at Law, San Antonio, TX, John Robert Heard, Heard & Smith, San Antonio, TX, for Plaintiffs.James Byron Eccles, Attorney General's Office, Austin, TX, for Defendants.

MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS' RULE 60(b)(5) MOTION AND MOTION TO STRIKE

RICHARD A. SCHELL, District Judge.

Before the court are (1) the “Defendants' Rule 60(B)(5) 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” (Dkt. 766) and (2) the “Defendants Motion to Strike Portions of the Testimony of Drs. Seale, Kennedy, and Nabulsi” (Dkt. 789). For the reasons set forth below, the Defendants' motions are DENIED.

I. BACKGROUND

A detailed background of this case can be found in previously issued opinions. See Frew v. Gilbert, 109 F.Supp.2d 579 (E.D.Tex.2000); Frazar v. Gilbert, 300 F.3d 530 (5th Cir.2002); Frew v. Hawkins, 540 U.S. 431, 124 S.Ct. 899, 157 L.Ed.2d 855 (2004); Frew v. Hawkins, 401 F.Supp.2d 619 (E.D.Tex.2005). A brief summary of events, however, is appropriate.

On September 1, 1993, the Plaintiffs filed this lawsuit alleging that the Defendants (the successive commissioners of the Texas Health and Human Services Commission and the Texas Department of Health) did not adequately provide Early, Periodic, Screening, Diagnosis, and Treatment (EPSDT) services to Medicaid recipients under the age of 21 as required by the Medicaid Act under Title 42, United States Code, Sections 1396a(a)(43); 1396d(r). In Texas, the EPSDT program is referred to as “Texas Health Steps” and is administered jointly by the federal government and the Texas Health and Human Services Commission. The Plaintiffs structured this case as a class action and defined the class broadly to include all Texas youth eligible to receive Medicaid. The Plaintiffs sought injunctive relief to ensure that the state complied with the Medicaid Act. The primary governing documents in this case are the “Consent Decree” (Dkt. 135) and the “Corrective Action Order” (Dkt. 637).

A. The Consent Decree

In July 1995, after extensive settlement negotiations, the parties proposed a Consent Decree (Decree) that was subsequently approved by the court on February 16, 1996 (Dkt. 135). The Decree, in effect, is a court-enforced settlement agreement that sets forth a compliance plan for the State's EPSDT program. See Frew v. Hawkins, 540 U.S. 431, 437, 124 S.Ct. 899, 157 L.Ed.2d 855 (2004) (“A consent decree ‘embodies an agreement of the parties' and is also ‘an agreement that the parties desire and expect will be reflected in, and be enforceable as, a judicial decree that is subject to the rules generally applicable to other judgments and decrees.’ ”) (quoting Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 378, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992)). The Decree was not intended to resolve all contested issues between the parties. Rather, it was designed to reduce the nature and scope of the litigation. The Decree discusses in detail the areas where the State's current EPSDT program is deficient, sets goals and requirements for improvements, and establishes deadlines for the State's implementation of the improvements.

In 1998, the Plaintiffs moved to enforce the Decree, arguing that the Defendants were not complying with several of the Decree's provisions (Dkt. 208). Defendants opposed this motion, arguing that their efforts had been sufficient and that, regardless of their efforts, the Eleventh Amendment barred the court from enforcing the Decree. In 2000, this court found that the State had failed to comply with several of the Decree's provisions and that the Eleventh Amendment did not bar enforcement of the Decree. Frew v. Gilbert, 109 F.Supp.2d 579 (E.D.Tex.2000). On appeal the Fifth Circuit disagreed with the court and held that the Eleventh Amendment barred enforcement of elements of the Decree that were not specifically mandated by the Medicaid Act. Frazar v. Gilbert, 300 F.3d 530 (5th Cir.2002). The U.S. Supreme Court reversed the Fifth Circuit, holding that the Decree was enforceable under the principals of Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908) in that the Decree addressed federal interests. Frew v. Hawkins, 540 U.S. 431, 124 S.Ct. 899, 157 L.Ed.2d 855 (2004). The case was remanded to this court for continued oversight.

B. Corrective Action Order

In November 2004, the Defendants moved to terminate or alternatively to modify the Decree under Federal Rule of Civil Procedure 60(b)(5) (Dkt. 406). The basis for the Defendants' motion was that even though they had not yet fulfilled the Decree their efforts had brought them into compliance with the Medicaid Act. The court denied the Defendants' motion, holding that compliance with the federal law was not the sole object of the Decree. Frew v. Hawkins, 401 F.Supp.2d 619 (E.D.Tex.2005). The Defendants' appeals to the Fifth Circuit and the U.S. Supreme Court were unsuccessful. See Frazar v. Ladd, 457 F.3d 432 (5th Cir.2006), cert. denied, 549 U.S. 1118, 127 S.Ct. 1039, 166 L.Ed.2d 714 (2007).

The Plaintiffs eventually filed three other motions relating to enforcement of the Decree (Dkts. 607, 429, 428). In 2007, the parties reached an agreement on the pending motions that set forth corrective action plans for eleven areas of the EPSDT program that had been addressed in the Decree. The parties filed their proposed agreement with the court on April 27, 2007 (Dkt. 637). The court orally approved the agreement at a July 9, 2007 hearing and subsequently entered the agreement as the Corrective Action Order (CAO) on September 5, 2007, 2007 WL 2667985 (Dkt. 663).

On April 17, 2009, the case was transferred by the Honorable William Wayne Justice to the undersigned judge (Dkt. 716).

II. THE INSTANT MOTIONS

The CAO's provisions on “Health Outcomes Measures and Dental Assessment” (Dkt. 637–4) required that Defendants propose within four months after entry of the CAO a plan for a valid and professional study to assess class members' dental health. The CAO also required Defendants to present a dental corrective action plan to Plaintiffs within four months after the completion of the first dental study. Then, within thirty-six months after the parties agree to a corrective action plan, the Defendants are to conduct a second dental study.

These provisions in the CAO are tied to Paragraphs 173 and 174 of the Decree. See Dkt. 637–4, pg. 3 (“Decree References”). Paragraph 173 states that “Defendants will report on dental health outcomes in the EPSDT population,” and Paragraph 174 states that “Defendants will arrange for a study to assess the dental health of the EPSDT population.” Decree (Dkt. 135), pg. 47. These paragraphs from the Decree are noteworthy because the CAO was intended to bring the Defendants into compliance with the Decree. See CAO (Dkt. 663), pg. 1 n. 1 (“One purpose of the Corrective Action Order is to bring Defendants into compliance with the Consent Decree ..., which remains in effect. The Court hopes and expects that by complying with the Order, Defendants will also comply with the Decree.”).

In July 2008, the parties agreed upon protocols for the first dental study. After completion of the study the Defendants filed the results with the court on December 31, 2009 (Dkt. 747). The study was entitled “Assessment of Child Dental Health Status” (Dental Assessment). During a January 25, 2010 conference call between the parties, the Defendants notified the Plaintiffs that the Dental Assessment results showed that a dental corrective action plan, as required by the CAO, was no longer necessary. The Plaintiffs refused to agree that the study supported eliminating the corrective action plan. On March 30, 2010, the Defendants sent the Plaintiffs a letter stating that if the parties could not agree by April 16, 2010, that a dental corrective action plan was no longer necessary then the Defendants would seek resolution from the court. After the parties were unable to agree on the matter, the Defendants filed this motion on May 27, 2010 (Dkt. 766).¹

The Defendants' motion seeks to modify the CAO by eliminating the requirements for a dental corrective action plan and a second dental assessment. The Defendants first argue that the Dental Assessment and other statistical evidence show that the objectives of the Decree—increasing participation in the Texas EPSDT program and improving class members' dental health—have been achieved and, therefore, corrective action is unnecessary. Specifically, the Defendants argue that the Dental Assessment shows that children enrolled in the Texas EPSDT program experienced dental outcomes that were equal to or better than children not enrolled in the program. They also assert that Texas ranks third in a 2008 state-by-state comparison of EPSDT dental participation rates and that the dental participation rate in the Texas EPSDT program has improved from fourteen percent in 1993 to fifty-eight percent in 2009. Thus, the Defendants argue that with the objectives of the Decree having been achieved, the circumstances have changed for purposes of Rule 60(b)(5) and a dental corrective action plan is no longer necessary.

Next, the Defendants argue that, in addition to there being no need for corrective action, requiring them to implement a dental corrective action plan may “confound” their ability to evaluate the impact of their current efforts to improve the dental health of class members. Finally, the Defendants argue that a second dental assessment is unnecessary because they plan to conduct a second study on their own initiative that will utilize data from the 2012–2013 school...