Filed Date: Feb. 25, 1998
Closed Date: 2013
Clearinghouse coding complete
On February 25, 1998, plaintiffs, consisting of over 500,000 Tennessee residents under the age of 21 who rely on the state's Medicaid Program ("TennCare") for essential medical and mental health services, brought this class action claim against Tennessee State officials in the United States District Court for the Middle District of Tennessee, Nashville Division. The plaintiffs claimed "unlawful deprivation of medically necessary care results in the needless infliction of pain, the endangerment of young lives, and the stunting of children's chances to achieve their full potential" in violation of Title XIX of the Social Security Act, 42 U.S.C. §§1396, the terms and conditions of Tennessee's conditions of risk agreements between the State of Tennessee, TennCare, managed care organizations (MCOs) and behavioral health organizations (BHOs). Plaintiffs seek declaratory and injunctive relief.
Tennessee participated in Medicaid from the 1960s until it received a five year waiver under Section 1115 of the Social Security Act, 42 U.S.C. §1315, to implement a demonstration program called TennCare. TennCare has two major distinguishing features from the standard Medicaid program. First, TennCare beneficiaries were assigned to one of 11 managed care organizations (MCOs) who assigned primary care providers to serve as gatekeepers to medical services. Second, TennCare added coverage for state residents who lacked access to group health insurance and those who were "uninsurable" because of preexisting conditions.
In July, 1996, a major amendment added behavioral health services to those provided through TennCare, funded with state and federal block grant money. These funds were disbursed to a new set of behavioral health organizations (BHOs), along with the existing budget for behavioral health services. TennCare's managed care organizations ceased to have any responsibility for behavioral health care, and the BHOs assumed responsibility for providing such services to TennCare's entire enrollment.
Approximately 6,000 severely emotionally disturbed ("SED") TennCare children were considered members of the priority population. The program originally paid BHOs a single capitation rate for all TennCare children, regardless of whether they were members of the priority population classified as SED. However, after the implementation of the Partners Program, non-SED children were only entitled to inpatient psychiatric hospitalization and a limited number of outpatient mental health visits; while SED children were eligible for an "enhanced benefits package" of mental health services as needed. The definition of SED encompassed only children who scored up to fifty on the "Global Assessment Functioning" (GAF) test.
Although the waiver amendment approved by the Health Care Financing Administration (HCFA), and the contracts signed by the BHOs contained language that the behavioral health plans were to provide children all services required by the federal EPSDT mandate, the program did not emphasize the SED or non-SED distinctions to BHOs and the public. BHOs and providers have treated the designation as determinative of a child's access to services. Consequently, many medically necessary behavioral health services have been unavailable to children who did not meet the GAF score criteria for SED designation.
In 1997, HCFA criticized the Partners Program's failure to adequately serve the needs of SED children, sparking the restructuring of the capitation payments for BHOs by TennCare so that SED enrollees now earn the BHOs markedly higher capitation payments than non-SED children. This reinforced the BHOs' perception that they did not need to provide the full array of mental health services a severely disturbed child needs unless the child has the required GAF score.
In July 1996, Tennessee created the Department of Children's Services as the agency responsible for all children in state custody. TennCare allocated $129 million to the Department of Children's Services for EPSDT services for children in state custody, or at risk of becoming in state custody. While TennCare's MCOs were supposed to meet the medical/surgical needs of these children, DCS shared responsibility with the TennCare BHOs for the funding and management of behavioral health services for children in custody. DCS claimed to use this EPSDT allocation to pay for a range of "therapeutic interventions" that complement the health and behavioral health services covered by the managed care plans. The department administered the funds outside of the TennCare MCO/BHO care delivery system.
The Department of Children Services was required to provide a basic benefits package to all children in custody, whether they met the SED qualification or not. However, the behavioral health plans had no obligation to provide enhanced services for SED children when those children entered state custody, at which point DCS became responsible.
Aside from Tennessee's participation in Medicaid, Tennessee accepted federal funds under the Adoption Assistance Act. Federal statutory conditions relating to the state's administration of services for children in custody, or at risk of coming into custody, were attached to the receipt of the funds. Most of these conditions governed the provision of social and custodial services to such children, or were designed to achieve permanent placements for them, and were not at issue in this case.
The Adoption Assistant Act's requirement of provision of necessary health services for children in custody, or at risk of coming into state custody, was at issue in these proceedings. The Act also required that health services for a child in custody, or at risk of entering custody, be coordinated with the other educational, social and custodial services which the child needs.
The plaintiffs relied on the defendants for provision of critical EPSDT and services necessary to address children's health needs. Members of this class claimed to be subject to systemic deficiencies in TennCare that impaired their access to such services.
On March 11, 1998, the parties entered a consent decree. The United States District Court for the Middle District of Tennessee at Nashville (Judge William Haynes Jr.) certified the class and a subclass of consisting of children in custody or at risk of coming into custody of DCS.
In the Consent Decree, the state agreed to achieve full compliance with EPSDT, related laws, and the substantive provisions of the agreed order within five years. It also agreed to immediately begin providing partial, and steadily increasing, benefits from the remedial plan as the totality of the terms were implemented.
On December 19, 2001, Judge John Nixon found that, although the Defendants were well-intentioned in complying with the Court's 1998 Consent Decree, ultimately, they were not in compliance. John B. v. Menke, 176 F. Supp. 2d 786 (M.D. Tenn. 2001). The court appointed a special master to mediate and submit to the court an EPSDT-compliance plan. The defendants were again found to be non-compliant in 2004.
In an order dated September 18, 2009, Judge Nixon denied the Defendants' motion to vacate the Consent Decree. F. Supp.2d 871 (M.D. Tenn. 2009). The Defendants appealed and in December 2010, the Sixth Circuit of the United States Court of Appeals (Judge Julia Gibbons) vacated part of the Consent Decree. John B. v. Goetz, 2010 U.S. App. LEXIS 25589. The defendants argued that Medicaid 42 U.S.C. §1396(a)(30) was not privately enforceable. The Sixth Circuit vacated the consent decree's requirement that the Defendants ensure the availability of services was geographically comparable and any other provisions based on §1396a(a)(30). Because of concerns that the district court had developed a skewed view of the case, the Sixth Circuit also ordered that the case be reassigned to a new district judge, Thomas A. Wiseman.
In March 2011, Judge Wiseman made preliminary findings that multiple paragraphs of the Consent Decree were subject to vacatur because they were based on statutory provisions or regulations that were themselves not enforceable under § 1983. John B. V. Emkes, 2011 U.S. Dist. LEXIS 20399. (Motion to Vacate Granted in Part.) The Court vacated those paragraphs, but held that the decree as a whole was still enforceable.
The state then filed a second motion to vacate the decree, this time on the grounds that it was in substantial compliance with the terms of the Decree. On February 14, 2012, the District Court concluded that the state was indeed in substantial compliance and granted the Defendant's motion to vacate both the Consent Decree and all injunctive relief that had been ordered in the case. Specifically, the court noted major improvements in the state's outreach to parents and families, communication efforts, screening processes, diagnostic and treatment processes, and compliance monitoring. The Court subsequently dismissed the case, but retained jurisdiction for the consideration of attorney's fees.
In April of 2012, the Plaintiffs filed for and were granted leave to file a Sealed Notice of Appeal. Plaintiffs argued that the District Court had abused its discretion in vacating the Decree, and that the paragraphs the District Court had held were unenforceable were in fact enforceable. In March 2013, a panel of Sixth Circuit judges affirmed the judgment of the District Court. The Circuit Court found that that the District Court was correct that certain paragraphs of the Decree were unenforceable, and that it had used proper discretion in finding that the state was in substantial compliance with the remaining terms of the decree. The Circuit Court declined to award Plaintiffs attorneys' fees.
The case is now closed.
Summary Authors
Joshua Arocho (6/20/2012)
Lauren Latterell Powell (10/27/2017)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/4708099/parties/b-v-emkes/
Alito, Samuel A. Jr. (District of Columbia)
Anderson, Leanna Marie (California)
Aemisegger, Nicholas G. Jr. (Montana)
Ambrosius, Paul W. (Tennessee)
Alexander, Elizabeth A. (Tennessee)
Alito, Samuel A. Jr. (District of Columbia)
Breyer, Stephen Gerald (District of Columbia)
Gibbons, Julia Smith (Tennessee)
Ginsburg, Ruth Bader (District of Columbia)
Haynes, William Joseph Jr. (Tennessee)
Kennedy, Anthony McLeod (District of Columbia)
Kethledge, Raymond M. (Michigan)
Roberts, John Glover Jr. (District of Columbia)
Rogers, John M. (District of Columbia)
Scalia, Antonin (District of Columbia)
Souter, David Hackett (District of Columbia)
Stevens, John Paul (District of Columbia)
Anderson, Leanna Marie (California)
Bonnyman, George G. Jr. (Tennessee)
Bristol, Marjorie A. (Tennessee)
Burnim, Ira Abraham (District of Columbia)
Chang, William S.W. (New York)
Choy, Jason Francis (New York)
Doffermyre, Everette L. (Georgia)
Giliberti, Mary (District of Columbia)
Goldman, Jeffrey S. (Illinois)
Heyman, Gregory Todd (New York)
Hutto, Elizabeth Banston (Tennessee)
Johnson, Kimberly Jean (Tennessee)
Johnson, Michele M. (Tennessee)
Jones, Ronald Cantrell (Illinois)
Joseph, Robert Thomas (Illinois)
Kass, Albert Howard (New York)
Knowles, Ralph I. Jr. (Georgia)
Kozlowski, David Arthur (Tennessee)
McDaniel, Katherine L. (New York)
Overby, Russell J. (Tennessee)
Richardson, Tony L. (California)
Schlaff, Shira Judith (New York)
Seltzer, Tamara Lynn (District of Columbia)
Tsou, Sarah Kao-Yen (New York)
Aemisegger, Nicholas G. Jr. (Montana)
Ambrosius, Paul W. (Tennessee)
Brown, Katherine Ann (Tennessee)
Cooper, Charles Justin (District of Columbia)
Hann, Jennifer Helton (Tennessee)
Harwell, Aubrey B. Jr. (Tennessee)
Hume, Hamish P.M. (District of Columbia)
Kirk, Michael W. (District of Columbia)
Kleinfelter, Janet M. (Tennessee)
Koukoutchos, Brian Stuart (District of Columbia)
Miller, Charles A. (District of Columbia)
Minkoff, Elizabeth B. (Tennessee)
Moss, Nicole J. (District of Columbia)
Sauer, Dean John (District of Columbia)
Shaffer, Derek L. (District of Columbia)
Stephenson, Kathryn A. (Tennessee)
Alexander, Elizabeth A. (Tennessee)
Barrett, George E. (Tennessee)
Biller, Stephen H. (Tennessee)
Carey, Edmund L. Jr. (Tennessee)
Carter, Richard A. (Tennessee)
Coleman, Christopher E. (Tennessee)
Dermody, Kelly M. (California)
Dietz, Wallace Wordsworth (Tennessee)
Domenick, Beth L. (Pennsylvania)
Hornback, Michael D (Tennessee)
Hubbard, William B. (Tennessee)
Lewis, George Tolbert III (Tennessee)
Passino, Michael James (Tennessee)
Perkins, Jane (North Carolina)
Safar, Joseph C (Pennsylvania)
Smith, Robert Lewis (Tennessee)
Somers, Sarah (North Carolina)
Vernick, Scott L. (Pennsylvania)
Walker, Kathryn Hannen (Tennessee)
Webb, Christopher Corum (Tennessee)
See docket on RECAP: https://www.courtlistener.com/docket/4708099/b-v-emkes/
Last updated April 19, 2025, 3:20 p.m.
State / Territory: Tennessee
Case Type(s):
Special Collection(s):
Key Dates
Filing Date: Feb. 25, 1998
Closing Date: 2013
Case Ongoing: No
Plaintiffs
Plaintiff Description:
500,000 children enrolled in the TennCare Program for mental and medical services
Plaintiff Type(s):
Attorney Organizations:
Public Interest Lawyer: Yes
Filed Pro Se: No
Class Action Sought: Yes
Class Action Outcome: Granted
Defendants
Assistant Commissioner (Nashville, Davidson), State
Commissioner (Nashville), State
Commissioner (Nashville, Davidson), State
Defendant Type(s):
Case Details
Causes of Action:
Adoption Assistance and Child Welfare Act of 1980 (AACWA), 42 U.S.C. §§ 620 et seq.
Medicaid, 42 U.S.C §1396 (Title XIX of the Social Security Act)
Constitutional Clause(s):
Available Documents:
Injunctive (or Injunctive-like) Relief
Outcome
Prevailing Party: Plaintiff
Nature of Relief:
Injunction / Injunctive-like Settlement
Source of Relief:
Form of Settlement:
Court Approved Settlement or Consent Decree
Content of Injunction:
Goals (e.g., for hiring, admissions)
Order Duration: 1998 - 2012
Issues
General/Misc.:
Public benefits (includes, e.g., in-state tuition, govt. jobs)
Benefits (Source):
Disability and Disability Rights:
Developmental disability without intellectual disability
Medical/Mental Health Care: