Mitchell v. Johnston

• Decision Date: 14 March 1983
• Docket Number: 82-1363,Nos. 82-1245,s. 82-1245
• Citation: Mitchell v. Johnston, 701 F.2d 337 (5th Cir. 1983)
• Parties: Stephanie MITCHELL, et al., on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, v. Marlin W. JOHNSTON, in his official capacity as Acting Commissioner of the Texas Department of Human Resources, et al., Defendants-Appellants. Stephanie MITCHELL, et al., on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, and Eddie Mae Benson, Intervenor-Appellant, v. Marlin W. JOHNSTON, in his official capacity as Acting Commissioner of the Texas Department of Human Resources, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 337

701 F.2d 337

1 Soc.Sec.Rep.Ser. 257

Stephanie MITCHELL, et al., on behalf of themselves and all

others similarly situated, Plaintiffs-Appellees, v.Marlin W. JOHNSTON, in his official capacity as Acting

Commissioner of the Texas Department of Human

Resources, et al., Defendants-Appellants.

Stephanie MITCHELL, et al., on behalf of themselves and all

others similarly situated, Plaintiffs-Appellants, andEddie Mae Benson, Intervenor-Appellant, v.Marlin W. JOHNSTON, in his official capacity as Acting

Commissioner of the Texas Department of Human

Resources, et al., Defendants-Appellants.

Nos. 82-1245, 82-1363.

United States Court of Appeals Fifth Circuit.

March 14, 1983.

Mark White, Atty. Gen., Ann Clarke Snell, Asst. Atty. Gen., Austin, Tex., for Marlin W. Johnston, et al.

Barbara Hines, Regina L. Rogoff, Austin, Tex., Nancy Elizabeth Ebb, Sara Rosenbaum, Children's Defense Fund, Carol Golubock, Washington, D.C., for Stephanie Mitchell, et al.

Appeals from the United States District Court for the Western District of Texas

Before JOHNSON, WILLIAMS and JOLLY, Circuit Judges.

JOHNSON, Circuit Judge:

The Social Security Act allows states to voluntarily participate in Medicaid programs that provide federal funding for participating states.In exchange for the federal funds, participating states are required to provide certain minimum mandatory services, one of which is entitled Early and Periodic Screening, Diagnosis and Treatment (EPSDT), a service that provides dental care to the children of qualified Medicaid recipients.

Texas, like most states, has taken a bite out of the carrot of cooperative federalism and is, accordingly, subject to the federal stick--the minimum mandatory requirements set forth in the Medicaid legislation.42 U.S.C. Sec. 1396a, et seq.(1974& Supp.1982).Whether the Texas EPSDT program adequately fulfills that state's commitments under the federal-state program is the issue before this Court.The district court concluded that the Texas EPSDT program fails to provide eligible children with the quality preventive dental care envisioned and required by applicable federal law and we agree.However, since the district court erred by conditioning two Children's Defense Fund (CDF) attorneys' pro hac vice admission to the instant case upon a relinquishment of their claim for statutorily authorized attorneys' fees, we affirm in part and reverse and remand in part.

I.The EPSDT Program and the 1979 Cutback

For several years, Texas has operated an EPSDT program in cooperation with the federal government.Prior to 1979, EPSDT-eligible children could obtain annual dental checkups.At these checkups, the child's teeth were examined by the treating dentist--visually and/or through use of X-ray equipment.The EPSDT child could receive a fluoride treatment and the dentist was authorized to select any of several dental services should the particular circumstances of the child's dental condition warrant use of such services.These available dental services included: (1) topical fluoride; ¹(2) posterior root canals; ²(3) fixed space maintainers; ³(4) partial dental appliances on the posterior teeth; ⁴(5) porcelain crowns; ⁵(6) antibiotic injections; (7) frenulectomies; ⁶ and (8) nonsymptomatic extraction of impacted teeth.

In 1979, the Texas Legislature cut the amount of funds the State of Texas would invest in the EPSDT program by forty-five percent.The Texas Department of Human Resources(TDHR) was responsible for allocating the reduced funds and significant cutbacks in available EPSDT services naturally followed.TDHR lengthened the period of time between preventive dental checkups from one year to three years.During this three-year period, the EPSDT child could receive dental services only if the particular dental condition fell within one of three limited exceptions: (1) the "emergency" exception; (2) the "obvious need" exception; or (3) the "medical necessity" exception.An emergency situation exists when an eligible child experiences pain, infection, or swelling in the oral cavity.Record, vol. 6 at 63(Testimony of Cecil Chandler, Senior Dental Consultant, TDHR).An obvious need situation exists when the recipient, a parent, a teacher, or any other interested person actually observes a clear dental problem.Id. at 67.Finally, a situation of medical necessity exists when a recipient has a dental problem that will adversely affect the child's overall health unless immediately treated.Id. at 63.TDHR also removed several previously available dental services from the EPSDT program, namely: (1) topical fluoride; (2) posterior root canals; (3) fixed space maintainers; (4) partial dental appliances on posterior teeth; (5) porcelain crowns; (6) antibiotic injections; (7) frenulectomies; and (8) nonsymptomatic extraction of impacted teeth.

TDHR's "proposed" changes in the EPSDT program were proposed for permanent adoption by publication in the Texas Register on September 21, 1979.SeeVolume4 Tex.Reg. 3385(Sept. 21, 1979).However, the elimination of the eight aforementioned dental services actually occurred in May and July of 1979 and the triennial access schedule went into effect on September 1, 1979.Clearly, no prior actual notice of the cutbacks was provided to eligible recipients.Record, vol. 3 at 458.

In summary, whereas the pre-1979 EPSDT program provided eligible children with annual preventive and restorative dental checkups and several available basic dental procedures to maintain eligible children's dental health, the post-1979 EPSDT program provides eligible children with triennial preventive checkups and allows the treating dentist to treat a detected dental problem arising in between the three-year visits only if it falls within the limited exceptions of emergency, obvious need, or medical necessity.Moreover, eight basic dental services available under the 1979 program are no longer available to the treating dentists under the post-1979 EPSDT program.

II.Course of Proceedings

Stephanie and Stephen Mitchell, through their mother and next friend, Ruthie Mitchell, joined with the Austin Welfare Rights Organization of Austin, Texas, and initiated this action against Marlin W. Johnston, acting Commissioner of TDHR, Hilmar G. Moore, William T. Bray, and Raul Jimenez, members of the State Board of Human Resources.Plaintiffs alleged that the 1979 EPSDT cutbacks deprived them of substantive and procedural due process and divested them of benefits to which they were entitled under federal law.⁷Specifically, plaintiffs sought to enjoin the reductions, to have the reductions declared in noncompliance with the federal program, to force the defendants to provide notice of the available benefits to each eligible recipient, and to represent a class of all similarly situated recipients.After discovery but before trial, Sylvia and Alex Benson sought to intervene as plaintiffs.

On October 28, 1981, a pretrial hearing was held and the district court granted the Bensons' motion to intervene, denied class certification, and denied the defendants' motion to dismiss.A two-day trial was held on the merits before the district judge who, at the conclusion of the trial, certified a class action consisting of "all persons under twenty-one who were receiving Medicaid at least ten days before the date on which a reduction or termination of EPSDT dental benefits occurred ..., and who are currently receiving Medicaid benefits."Record, vol. 4 at 811.Thereafter, the district judge took the case under advisement.

On January 30, 1982, the district judge issued a Declaratory Judgment and Memorandum Opinion.The district judge concluded that "Texas triennial periodicity schedule, with its present exceptions ... fails to provide access to dental care sufficient in amount, scope and duration to achieve the preventive, maintenance and restorative purposes of the program."Additionally, with regard to the eight eliminated dental services, the district court basically concluded that seven of the eight procedures had been deleted for improper purposes "wholly unrelated to the accomplishment of the purpose of EPSDT legislation and that the resulting schedule of services failed to adequately promote the purposes and requirements of the program."Since the district court was able to dispose of the case on statutory grounds alone, it properly refused to address the plaintiffs' constitutional allegations.Dandridge v. Williams, 397 U.S. 471 at 475-6, 90 S.Ct. 1153 at 1156-7, 25 L.Ed.2d 491(1969) and authority cited therein.Finally, the district court concluded that the plaintiffs received inadequate notice of the EPSDT changes.

Rather than constructing a substitute EPSDT program, however, the district court allowed the defendants thirty days to present the district court with a new schedule of periodicity and allowable procedures.TDHR requested an extension to consult with its Dental Professional Advisory and Review Committee, ⁸ asking it to recommend a "good basic dental care program."Record, vol. 4 at 755.Thereafter, TDHR submitted a proposed plan that failed to reinstate several of the procedures that the district court had found necessary to a minimally acceptable program and offered services inferior to those recommended by its own advisory committee on dental health.

TDHR's Advisory Committee recommended reinstatement of annual periodicity and recommended that TDHR reinstate the following procedures: (1) topical fluoride; (2) posterior root canals; (3) cast crowns; (4) fixed space maintainers; and (5) partial dental appliances on posterior teeth.Id. at 754-55.However, the proposed compliance plan actually presented to the district court by TDHR offered services drastically inferior to the Advisory Committee's recommendations.In addition, TDHR's proposed compliance plan almost totally ignored the express findings of the district court.In fact, TDHR offered to reinstate annual...