Judge Orders State to Halt Medicaid Cuts for Pediatric Therapy — Evidence of Callous Incompetence Emerged at the Hearing
Families of disabled children and pediatric therapy providers asked a state district court to issue an emergency temporary injunction to stop the state from implementing cuts to the Texas Medicaid Acute Therapy program on October 1. They said the cuts would result in irreparable harm to medically fragile children.
The Judge agreed that there was “a credible showing of imminent and irreparable injury for the plaintiffs,” who risk losing access to pediatric therapy. He issued the temporary injunction on Friday, September 25 and commanded the Health and Human Services Commission (HHSC) to refrain from taking any action or implement any change in reimbursement rates for physical, occupational, and speech therapy services from the date of the order until the date of a trial on January 18, 2016.
The Judge’s ruling came after a two day court hearing during which the state was forced to produce documents outlining its justification for the cuts.
What came out during the court hearing stunned reporters, families and advocates in the audience. It became apparent that HHSC targeted the Medicaid Acute Therapy program, based reimbursement rate reductions on faulty logic and shoddy data and misled the legislature about their data. Most surprising of all, the state admitted they had not studied how the cuts would affect access to care, despite a state law that requires them to do so.
How did we get here?
Earlier, this year, the legislature approved a two year budget for the state. Late in the budget writing process an amendment, or rider, was attached to the budget commanding HHSC to cut $150 million from the Medicaid Acute Care program that provides speech, occupational, and physical therapy to medically fragile children over a two year period.
In addition to the $150 million cut in general revenue, the therapy cuts would also cause the state to forfeit $200 million in federal money. Therefore $350 million total funding is at stake.
This amendment was attached to the budget before the final vote in May of 2015 but long after public hearings were held regarding the budget. This amendment also specifically commanded HHSC to save the money without jeopardizing access to care—a very important qualification considered by the court.
Lawmakers, long frustrated with the high cost of Medicaid, had ordered HHSC four years ago to study the issue and make recommendations.
When lawmakers included those cuts in the state budget earlier this year, they justified the move in part by citing a report that HHSC asked Texas A&M to conduct which showed that Texas overpays therapists. But what HHSC gave the legislature was its own summary of only a portion of data analysis by A&M.
Texas A&M researchers have sought to distance themselves from the state’s review document, which they say is a “derivative product” of their research that they had no hand in drafting. Additionally, A&M pointed out in public statements that at no time did HHSC ask them to evaluate the access to care issue.
Basically, the HHSC bureaucrats misled lawmakers, intentionally touting an “independent academic” report to influence decisions on the budget and never even looked at how the budget cuts would negatively affect the actual treatments being provided to kids.
That is unconscionable.
Here is what happened last summer
The following account of the state’s behavior during the past several months came out in court and it did NOT impress the judge.
The reductions in how much the state would reimburse Medicaid therapy providers for any number of therapies ranged up to 26 percent of what they currently pay and were first made public July 8. At a July 20 public hearing hundreds of families and therapists testified about the impact these cuts would have.
Their testimony fell on deaf ears. The HHSC response was that they had been ordered to do so by the legislature and the cuts would have to go into effect, as is, on September 1. This continued to be the agency’s response EVEN after several lawmakers went on the record saying, “this is not what we intended.”
On August 12, 2015 families and providers sued the state and filed a request for a temporary injunction. On August 20, shortly before the hearing in state district court, the HHSC told the court they had abandoned the proposed cuts and therefore there was no need for a temporary injunction.
Nine days later, late in the day on September 4, the Friday before the long Labor Day holiday weekend, HHSC proposed a new set of rates, set a public hearing for September 18 and declared the new rates would go into effect October 1.
The new set of rates were virtually indistinguishable from the prior ones. Although many advocates representing therapists spent the holiday weekend comparing the two, they were only able to see a few minor differences, and the end result of a $350 million cut was virtually identical.
This declaration of an October 1 effective date was made in the same document announcing the September 18 public hearing— leaving the impression that they had no intention of changing anything based on the public hearing.
But, families and therapists still held out hope that their voices would be heard and hundreds of them traveled to Austin from around the state to attend the second public hearing.
“I am going to keep coming for as long as it takes,” said Leslie Hurley a Fort Worth mother of an autistic child. Hurley came in for the July 20 hearing and again for the September 18 hearing. The second time she brought her daughter. During testimony she asked the HHSC bureaucrats to look at her child.
“I wanted them to look at her, they didn’t. They never took their eyes off me when I asked them to look at my child. I don’t think they care,” said Hurley.
Another mother, Dena Dupuie, who testified in the court hearing, was horrified at the facts that emerged about HHSC’s process and told reporters that her “advocate antennae” was raised.
“There should be an investigation into HHSC, it was frightening what came out in court. They lied. This is my child’s care at issue,” said Dupuie.
The state is expected to appeal the temporary injunction. Meanwhile families and kids who depend on these therapy services everyday are left in limbo.
Don’t give up the fight. Let your voices be heard by talking to every state official who will listen.