On Nov. 7, Eleventh Circuit Judge Adalberto Jordan in Atlanta approved an amended settlement agreement that extends the state's obligations through at least 2030.
Those obligations include spending hundreds of millions of additional dollars each year on increasing provider reimbursement, which improves access to care. There are also new obligations to increase support for dental care.
The firm's battle began in 2005 when it filed a lawsuit on behalf of the Florida Pediatric Society and the Florida Academy of Pediatric Dentistry. Its work continued through discovery, a nearly three-year trial, a decision in the plaintiffs' favor, a 2016 settlement and six years of monitoring.
The firm also spent $16 million worth of billable hours on the case, according to court records.
"This was the kind of case — representing children to try to get them better medical and dental care — you go to law school to do," Boies Schiller partner Stuart Singer, the lead attorney on the case, told Law360 on Thursday. "I never dreamed it would take as long as it did. It was a long battle, but worth fighting."
After the trial ended in 2012, it was another four years before a final settlement was reached and Florida was required to fix the problems with Florida Medicaid, namely by increasing payments and resolving issues like "switching," in which children were often moved from one Medicaid provider to another without the parents' knowledge or permission. The goal was to ensure that children on Florida Medicaid have access to health and dental care to the same extent as children on private insurance.
Singer said that when the case began, Florida had hundreds of thousands of children who were not receiving preventive health care.
"Some of those cases were extraordinary," he said. "We had one child who couldn't get a scan for a tumor around his back. We had a child who couldn't get an operation, and the child ultimately died. We had a child who several times had broken bones, which weren't set properly. And so really horrible cases in terms of the consequences of not receiving care."
There were also cases where children had to travel across the state to see specialists, or had to wait weeks or months to see a dentist who would treat a Medicaid patient.
At the time of the suit, Florida was ranked last in the country with respect to dental care — only 21% of children on Medicaid in Florida were receiving any dental care at all. And this was in spite of the federal Medicaid Act, which requires children to receive preventative health care and treatment for conditions that are found with "reasonable promise."
In 2002, the late Dr. Rick Bucciarelli, former president of the Florida chapter of the American Academy of Pediatrics, or FCAAP, learned that the organization's Oklahoma chapter had successfully sued the state of Oklahoma to assure that children on Oklahoma Medicaid would have equal access to health and dental care as Oklahoma children on commercial insurance.
The early periodic screening, diagnosis and treatment, or EPSDT, requirement under the federal Medicaid law mandates that state Medicaid programs must pay a sufficient amount to assure equal access for Medicaid children.
The FCAAP executive committee voted to follow Oklahoma's lead and sue Florida Medicaid for failure to assure that children on Florida Medicaid have appropriate access to EPSDT services. The problems in Florida included low payments and provider "switching" without parents' knowledge or consent.
After several law firms turned down the case, Boies Schiller's Fort Lauderdale office agreed to take it on a pro-bono basis, according to Tallahassee pediatric cardiologist Dr. Louis St. Petery, who at the time was executive vice president of FCAAP.
So Boies Schiller brought suit under Section 1983 for injunctive relief to force the state to meet the minimum requirements of federal law. The state first responded by saying there was no cause of action because these requirements were not privately enforceable.
"In addition to the Florida Pediatric Society and a similar association of pediatric dentists, this was a class action where we had to have a number of representative children," Singer said. "And it's a very daunting thing I think, for parents, particularly low-income parents, to take on the state of Florida in court when there's no financial upside for them. They were doing this because it was the right thing to do."
After the court granted class certification, trial began in 2009. Because it was a nonjury case, the judge was able to break up the trial and conduct it during nonconsecutive weeks.
Singer said the state's strategy was to delay the case as much as possible, including taking direct examinations of witnesses that lasted as long as seven days.
"In my closing argument, I remember saying there have been wars fought in less time than one of their witnesses' direct testimony," he said.
The plaintiffs had six different parts to their case. The first addressed the lack of preventative health care for children — the most basic rights to examinations on a regular basis that are required by law.
Other issues were access to specialist care, arbitrary benefit terminations for children who were eligible but couldn't get care due to administrative problems, issues with dental care reimbursement rates, applications that were too difficult for parents to complete and a lack of an outreach program to inform qualified people about the Medicaid program.
The state of Florida had tried to get the suit dismissed as moot because of the Medicaid Managed Assistance Program, which would result in the vast majority of children on Florida Medicaid receiving improved services through eligible managed care programs. But Judge Jordan rejected that argument, saying that issuing a finding of mootness at that point would require him to speculate on whether rates would actually increase under the MMA program and on what would happen with the Affordable Care Act.
In 2015, Judge Jordan handed down his 153-page decision, which found that Florida's Medicaid program had not compensated primary physicians or specialists at a rate competitive to Medicare or private insurance payors.
The judge also concluded Florida's structure for setting physician reimbursement failed to account for statutorily mandated factors in the Medicaid Act, including the level of compensation needed to assure an adequate supply of physicians to provide services or set rates at a level that will promote quality of care or equal access to care.
Dr. Thresia Gambon, current president of the FCAAP, called the court's approval of the amended settlement agreement a huge success for children and pediatric health care providers.
"The reimbursement rates being higher mean that more pediatricians are likely to participate, and pediatric subspecialists and dentists," Gambon told Law360 in an interview Friday. "So hopefully there's more access to different physicians in the areas that they live in. Because the more that participate, the more choices you have. It can be hard if nobody takes the Medicaid you have and you have to travel many miles to get care. Many providers were not participating because the reimbursement rates were so low. At times it wasn't covering costs."
Gambon said she's grateful for the efforts of Boies Schiller.
"The law firm has been wonderful," she said. "I remember meeting them back when this all started about 20 years ago. And they've been very responsive. They've been great. They've been persistent."
The Florida Academy of Pediatric Dentistry declined to comment, referring questions to Boies Schiller partner Carl Goldfarb, who assisted in the case.
In an email, Goldfarb told Law360 that the group "is pleased that its members will have the opportunity to qualify for an enhanced payment for treating children on Medicaid and hope this will incentivize more Florida dentists to participate in the program and provide care for children on Medicaid."
Attorneys for the state of Florida did not respond to requests for comment.
Singer called the amended settlement important for both physicians and children who now have far better opportunities to receive timely access to medical and dental care.
"It means you have more pediatricians who are incented to provide regular screening that is so important as part of preventative health care that identifies problems early rather than later," he said. "Investing money in preventative health care for children is highly cost-effective because you prevent problems at an early stage from becoming much more severe where you wind up spending more money in treatment if these patients wind up, for instance, going to an emergency room later on. So it makes sense in terms of cost-effectiveness, and it's extremely important for the kids in order to receive medical and dental care, both preventative and curative."
Singer added that legal experts should be closely watching a case that was argued in the U.S. Supreme Court several weeks ago called Health and Hospital Corp. of Marion County v. Talevski
.The Talevski case involves the question of whether private individuals should be able to enforce through Section 1983 rights that are created by laws passed by Congress under its spending powers — including the Medicaid Act, the Social Security Act and Medicare Act.
"This [Supreme Court case] is sort of floating under the radar. It hasn't received the notice that the affirmative action case or the abortion cases or the voting rights cases have received, but it's a very important case in terms of enforcing rights like the ones we're talking about here in the future," Singer said. "And I think it's almost ironic that at the same time Judge Jordan was putting the final touches on approving this settlement, which will help 2 million children in Florida on Medicaid, the Supreme Court was entertaining a case that would take away the right to bring that kind of case at all."
--Editing by Marygrace Anderson and Emily Kokoll.