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by Joe Sullivan

The headline in last Friday's News-Sentinel read "TennCare ruled 'failed experiment' by federal judge." And the article went on to say that, "The court ruling could be the death of the 7-year old TennCare program...," according to TennCare Director Mark Reynolds.

To which a lot of Tennesseans—I hate to think how many—would say good riddance. TennCare has, of course, become the whipping boy for all that ails the state financially. And the whippers seem to believe that getting rid of it would somehow make these problems go away.

Nothing could be further from the truth, nor more unrealistic in relation to the legal mandates and societal imperatives on which the program is founded. True, miscalculation and mismanagement have contributed to its escalating cost. But errors of omission in failing to provide fundamental health care services remain a far bigger culprit than errors in failing to curb expenses.

The court ruling in question, by U.S. District Judge John T. Nixon, is a prima facie case in point. Nixon found that TennCare has been woefully deficient in satisfying early periodic screening, diagnostic and treatment (EPSDT) requirements for the 550,000 children on its rolls. These range from hearing and vision checks to testing for iron deficiency, lead poisoning and sundry other conditions that can impede a child's development. And there's nothing new about them.

Congress established EPSDT requirements as part of the federal Medicaid program in 1967, but they proved elusive and were reinforced in 1989. To try to make them stick, the federal Health Care Financing Administration set a participation goal of 80 percent by 1995 for every state. (There's recognition here that short of fines or some other form of punishment, not all parents can be expected to get their children to a doctor.)

In violation of a 1998 consent decree under which TennCare committed to comply with this goal, Nixon found that in 2000 the reported screening rate was only 31.5 percent. In his exasperation, Nixon may have started throwing out babies with bathwater by placing the blame on the managed care system under which TennCare operates. In his sweeping indictment of the ways in which TennCare contracts with managed care organizations (MCOs) to provide care through their networks of doctors and other health care providers, he termed them a "systemic black hole into which any agreement to comply with a court order would collapse."

The only solution, he concluded, was to "carve out" TennCare's coverage of children from this managed care construct and place it on some different footing. "In order to ensure compliance with federal law, and to determine the precise contours of a carve out...the court will appoint a special master to draft an ESPDT-compliant plan for children less than 21 in Tennessee," Nixon's ruling states.

The ESPDT decree is among several court orders protecting TennCare enrollees obtained by the Tennessee Justice Center, which has been their preeminent advocate. But if there's one thing that the Justice Center's Gordon Bonnyman and TennCare's Reynolds agree upon, it is that managed care per se is not to blame. In concept, its regimen of assigning each enrollee to a primary care physician with responsibility for preventative care as well as treatment continues to hold appeal to all concerned. Even Nixon acknowledges that, "commentators have rightly observed that managed care, at least in theory, would appear to be an ideal model for the delivery of EPSDT services because it promotes preventative primary care."

The difficulties lie in putting the theory into practice, and Nixon is quicker than the rest to conclude it can't be done. He's abetted in this conclusion by the retired pediatrician who just happens to be chairman of the state Legislature's TennCare Oversight Committee, Rep. Gene Caldwell of Clinton. Caldwell estimates that only about half the pediatricians in the state participate in TennCare, but even if they all did, there wouldn't be enough to provide EPSDT services to the TennCare population, he contends (while at the same time insisting that far more are getting them than are presently getting reported to the state).

That's not the way the American Academy of Pediatricians sees it, though. In its Medicaid policy statement, the Academy recommends that managed care contracts clearly specify EPSDT responsibilities. It further recommends that states should closely monitor access and diagnostic and treatment services under EPSDT.

The heart of the problem in Tennessee lies with the state for faulty contracting and monitoring procedures. TennCare's contracts with its MCOs don't contain "clear, unambiguous language requiring absolute compliance with EPSDT," Nixon's ruling states. And top state officials know that TennCare's information systems are deplorable.

These problems are not unique to Tennessee. A July 2001 report by Congress' General Accounting Office found that less than half of Medicaid enrolled children nationally received EPSDT screens. But it goes on to cite ways in which various states are improving performance.

"Specific and comprehensive contract language helps ensure that health plans know their responsibilities and can be held accountable for delivering EPSDT services. Connecticut's contract, for example, contains three pages of specific EPSDT requirements...," the GAO advises. And it also recommends the use of carrots and sticks. "States can build incentives and sanctions into contracts to help ensure that health plans deliver EPSDT services. New York rewards plans that do better in providing EPSDT services by assigning them a higher proportion of new enrollees who do not make a specific choice when they enroll. Wisconsin recoups payments for screens if health plans do not adhere to an 80 percent screening rate."

Parents should also be held accountable for EPSDT compliance. Early diagnosis and treatment of vision and hearing defects and other impediments to learning can be just as important to student performance as what's taught in the classroom. Query: Why shouldn't parents be subject to the same sort of sanctions for failing to get their children tested as they are for truancy?

Nixon's ruling shouldn't spell the death of TennCare but rather the beginning of a new era of heightened responsibility and accountability on the part of state officials, MCOs, doctors and parents alike.