Oklahoma Chapter of Amer. Academy v. Fogarty

205 F.Supp.2d 1265

OKLAHOMA CHAPTER OF THE AMERICAN ACADEMY OF PEDIATRICS (OKAAP), et al., Plaintiffs, v. Michael FOGARTY, Chief Executive Officer of the Oklahoma Health Care Authority (OHCA), et al., Defendants.

No. 01-C-187-EA(J).

United States District Court, N.D. Oklahoma.

May 21, 2002.

COPYRIGHT MATERIAL OMITTED

Michael Joseph Lissau, Hall Estill Hardwick Gable, Golden & Nelson, Tulsa, OK, Louis W Bullock, Patricia W Bullock, Robert Murray Blakemore, Bullock & Bullock, Tulsa, OK, Thomas K Gilhool, Public Interest Law Center of Philadelphia, Philadelphia, PA, for Oklahoma Chapter of the American Academy of Pediatrics (OKAAP), Community Action Project of Tulsa County, Oklahoma, (CAPTC), Tracy T, as mother and next friend of Katelyn M. Wilbanks nfr Katelyn M Wilbanks, Lisa P, as mother and next friend of Joshua Lee O'Neal, Eric Hartman Cammiso, Melissa Ann Padelford and Mathew Scott Padelford nfr Joshua Lee O'Neal nfr Eric Hartman Cammiso nfr Melissa Ann Padelford nfr Mathew Scott Padelford, Rowena T, as parent and next friend of Christy A. Towler, Katherine P. Towler and Jacob W. Towler nfr Christy A Towler nfr Katherine P Towler nfr Jacob W Towler Kevin T, as parent and next friend of Christy A. Towler, Katherine P. Towler and Jacob W Towler nfr Christy A Towler nfr Katherine P Towler nfr Jacob W Towler, Janice G, as parent and next friend of Charles A. Scanlan and Robert M. Garvin nfr Charles A Scanlan nfr Robert M Garvin, Theodore G, as parent and next friend of Charles A. Scanlan and Robert M. Garvin nfr Robert M Garvin nfr Charles A Scanlan, Regina H, as parent and next friend of Jacob W. Hercules and Everett L. Hercules nfr Jacob W Hercules nfr Everett L Hercules, Gus H, as parent and next friend of Jacob W Hercules and Everett L. Hercules nfr Jacob W Hercules nfr Everett L Hercules, Heather R, as parent and next friend of Stephanie Moncrief nfr Stephanie Moncrief, All Plaintiffs, plaintiffs.

James McKee Robinson, Office of the Attorney General, Oklahoma City, OK, Andrew J Tevington, Oklahoma Health Care Auth, General Counsel, Oklahoma City, OK, Lynn S Rambo-Jones, Oklahoma Health Care Authority, Oklahoma City, OK, for Michael Fogarty, Chief Executive Officer of the Oklahoma Health Care Authority (OHCA), Lynn Mitchell, State Medicaid Director, Charles Ed McFall, Chairman of the OHCA Board of Directors, T J Brickner, Jr, Vice-Chair of the OHCA Board of Directors, Wayne Hoffman, Member of the OHCA Board of Directors, Jerry Henlee, Member of the OHCA Board of Directors, Ronald Rounds, O.D., Member of the OHCA Board of Directors, George Miller, Member of the OHCA Board of Directors, Lyle Roggow, Member of the OHCA Board of Directors, Jerry Humble, Member of the OHCA Board of Directors, defendants.

ORDER

EAGAN, District Judge.

Before the Court is the Motion to Dismiss (Dkt.# 21) filed by the defendants Michael Fogarty, Chief Executive Officer of the Oklahoma Health Care Authority ("OHCA"); Lynn Mitchell, State Medicaid Director; Charles Ed McFall, Chairman of the OHCA Board of Directors; T.J. Brickner, Jr., Vice-Chair of the OHCA Board of Directors; and Wayne Hoffman, Jerry Henlee, Ronald Rounds, O.D., George Miller and Lyle Roggow, members of the OHCA Board of Directors. Defendants move to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and (6).

A motion to dismiss is properly granted when it appears beyond doubt that plaintiffs could prove no set of facts entitling them to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Calderon v. Kansas Dept. of Social & Rehabilitation Services, 181 F.3d 1180, 1183 (10th Cir.1999). For purposes of making this determination, a court must "accept all the well-pleaded allegations of the complaint as true and must construe them in the light most favorable to the plaintiff[s]." Calderon, 181 F.3d at 1183; see also Dill v. City of Edmond, 155 F.3d 1193, 1201 (10th Cir.1998).

I.

Plaintiff Oklahoma Chapter of the American Academy of Pediatrics ("OKAAP") is a nonprofit professional organization of pediatricians and pediatric specialists who are qualified to provide Early and Periodic Screening, Diagnosis and Treatment ("EPSDT") services to eligible Oklahoma children. OKAAP's purpose is to foster improvements in the health and welfare of infants, children and adolescents in the State of Oklahoma. Plaintiff Community Action Project of Tulsa County, Inc. ("CAPTC") is a non-profit organization located in Tulsa, Oklahoma whose purpose is to help individuals and families in economic need achieve self-sufficiency in an atmosphere of respect. CAPTC operates, among other programs, the Head Start program for Tulsa County, and is thereby obligated to ensure that all children in its Head Start program receive essential medical, dental, developmental, mental heath and rehabilitation services. At least 90% of the children served by CAPTC's Head Start program are financially eligible for Medical Assistance.¹ The individual named plaintiffs are thirteen children and their parents who complain that they have not received timely, equal, or appropriate access to medical services in Oklahoma. Plaintiffs' class consists of children under the age of 21 who are now, or in the future will be, residing in Oklahoma and who are, or will be, eligible for Medical Assistance.

Defendants are officials of the State of Oklahoma and OHCA, the designated agency responsible for implementing and administering Oklahoma's Medical Assistance program to eligible children. Since 1995, OHCA has developed two managed care delivery systems for its Medical Assistance program for children—Sooner-Care Plus and SoonerCare Choice. Under the SoonerCare Plus program, OHCA contracts directly with Health Maintenance Organizations ("HMOs") to provide EPSDT services to children who reside in Tulsa, Oklahoma City, and Lawton, and surrounding counties. The SoonerCare Choice program serves the remainder of the counties. Under this program, the OHCA contracts with primary care physicians, including pediatricians, on a capitated payment basis to provide basic health care. All other necessary health care services to children in the SoonerCare Choice program are paid by OHCA on a fee-for-service basis.

Plaintiffs contend OHCA has not furnished Title XIX health care services to all enrolled Oklahoma children, let alone those who are eligible but not enrolled. Plaintiffs allege that 40% of Oklahoma's children are eligible for Medical Assistance. In the year ending September 30, 1999, 67% of Oklahoma children enrolled in Medical Assistance and due for at least one comprehensive screening examination did not receive any; only 10% of enrolled children who should have been furnished a dental evaluation and preventive dental care received any; and access to pediadontists for eligible children is virtually nonexistent. Plaintiffs assert the OHCA's contracts with HMOs have not secured the capacity to deliver promptly and completely the required EPSDT services, nor are payments to pediatric and specialty providers of such services sufficient to enlist enough providers to offer health care which is available to the general population in the geographic area who have private or public insurance coverage, as required under Title XIX, 42 U.S.C. § 1396a(a)(30). Finally, plaintiffs contend OHCA has failed to establish and utilize cooperative arrangements with other children's service agencies to secure enrollment, re-enrollment, extension, maintenance, presumptive eligibility, transportation, scheduling, case management and ease of reporting to all enrolled and eligible children, their families and providers. In short, plaintiffs allege that due to the acts and omissions of defendants, eligible children are not receiving EPSDT benefits and do not have equal access to medical services required by Title XIX.

Plaintiffs bring this class action pursuant to 42 U.S.C. § 1983 against defendants to (1) enjoin defendants from "depriving children of timely, complete and continuing health care and services in violation of Title XIX of the Social Security Act, its implementing federal regulations and guidelines, 42 U.S.C. § 1396 et seq."; (2) "ensure payments to providers, including pediatricians, pediatric subspecialists, and other specialty care physicians, are sufficient to ensure children receiving Medical Assistance have access to care and services at least to the extent that such care and services are available to other children in the geographic area as required by 42 U.S.C. § 1396a(a)(30)(A)"; (3) require "defendants to design, implement, ensure, and enforce managed care arrangements which deliver in a prompt and continuing fashion, the full array of children's health care services required to be delivered by Title XIX"; and (4) require that defendants "bring children's health care to the children, including: aggressively informing children and their families of Oklahoma's obligation to promptly furnish complete and continuing children's health care; fully utilizing cooperative arrangements with other child-intensive agencies in order to effectively achieve the enrollment and easy reenrollment of all eligible children and also in order to accomplish the actual delivery of necessary health care and services to all enrolled children; and providing scheduling assistance, outstations and case-management." Complaint, Dkt. # 64, at 5-6.

II.

Defendants seek dismissal based on the following arguments: (1) the Eleventh Amendment to the United States Constitution prohibits this Court from exercising jurisdiction over the persons of the defendants who are state employees sued in their "official capacities"; and (2) plaintiffs have no right of action under 42 U.S.C. § 1983, or standing to seek the relief requested. These arguments were successful in Westside Mothers v. Haveman, 133 F.Supp.2d 549 (E.D.Mich.2001), a case involving an similar claim which the Michigan court dismissed. Defendants incorporate that opinion by...