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July 13, 1976

Mary WOODRUFF, Individually and on behalf of her minor child Tina Louise Moore, et al., Plaintiffs,
Abe LAVINE, Individually and as Commissioner of the New York State Department of Social Services, et al., Defendants

Edward Weinfeld, District Judge.

The opinion of the court was delivered by: WEINFELD


EDWARD WEINFELD, District Judge.

 This Court's opinion dated June 4, 1975 *fn1" denying plaintiffs' motion for partial summary judgment sets forth: the federal statute and regulations governing the preventive health care program known as Early and Periodic Screening, Diagnosis and Treatment ("EPSDT") for Medicaid-eligible children under twenty-one years of age; the plaintiffs' various claims that defendants have failed to implement the program; and the defendants' contrary contentions that they were at that time in substantial compliance with federal requirements. Familiarity is assumed with that opinion, which sets forth material matters up to the date of decision.

 In April 1976 a pretrial order was entered upon consent of the parties which limited the plaintiff class to Medicaid-eligible children in New York City who have not received EPSDT. A two-week trial in June 1976, during which administrators, policy makers and medical and public health experts testified and almost two hundred exhibits were received in evidence, brought up to date the factual situation with respect to the parties' contentions. The issues are to be decided as of the current state of events. *fn2"

 The thrust of plaintiffs' various claims is that the defendants have failed, to a substantial degree, to implement certain essential components of the EPSDT program so that in fact it is not available to large numbers of Medicaid-eligible children in New York City. Based upon this Court's trial notes, which include its contemporaneous appraisal of each witness, a word-by-word reading of the trial transcript, a study of the exhibits and an evaluation of the witnesses' testimony and of their demeanor, the Court concludes that plaintiffs have failed to sustain their burden of proof as to their claims; to the contrary, the evidence abundantly establishes that the State and City are in substantial compliance with the federal statute and applicable regulations.

 Essentially, no matter how stated, the burden of plaintiffs' complaint is that to date the EPSDT program has been underutilized by eligible children. Thus, plaintiffs contend that since only ten to fourteen per cent of the eligible population have enrolled in the program, this establishes the defendants are in substantial violation of the federal statute and regulations. Plaintiffs' experts hypothesize that the program can be deemed successful only if eighty to eighty-five per cent of the eligibles are screened. While it may readily be admitted that such a goal is highly desirable and hopefully eventually will be achieved, it cannot by itself serve to gauge defendants' performance. The Department of Health, Education, and Welfare ("HEW") has no quota for screening, and compliance with the statute and regulations does not require that a fixed percentage of eligible children be screened; compliance is measured by availability of services to eligibles who request them.

 The Court finds the testimony of plaintiffs' several experts, however sincere in their views, far from persuasive. They have, in different instances in their generalized judgments, failed to take into account significant facts relating to the EPSDT program in New York City or have had little or no knowledge of its operations or of the City's problems with respect to preventive health care programs. Plaintiffs' various conceptual theories of how better to implement the program and to effect its greater utilization must yield to reality both in terms of administrative problems encountered by officials and lack of cooperation on the part of those entitled to participate in the program. The fact is that the program is voluntary; intended beneficiaries cannot be compelled to participate. A carrot may be offered but a stick may not be used. Despite the best efforts of administrators to popularize such a program, it will still meet with resistance or indifference by members of the socio-economic group for whose benefit it is intended. This generally has been true in all such programs, even those intended for a higher income level group. *fn3"

 The defendants do not claim that the City's program was administered with perfection in its initial stages. There were the usual problems incidental to a new governmental program of magnitude. But, as experience revealed shortcomings, the defendants brought into play more efficient and effective means of reaching all Medicaid-eligible children, as the following analysis will indicate.


 The federal regulatory scheme detailed in this Court's previous opinion requires that the State establish an "outreach" program for informing all eligible individuals of the available services and "encouraging" them to participate. *fn4" The State must then arrange screening and any corrective treatment *fn5" for each eligible individual requesting an examination by seeking out and developing agreements with health providers who offer such services. *fn6"

 Under the New York State Child Health Assurance Program ("CHAP"), as implemented in New York City through the City CHAP Plan, the organizational structure for fulfilling these EPSDT obligations is as follows: The CHAP Central Office of the City Department of Social Services is responsible for computerized identification of the eligible population and for making initial contacts with eligible individuals although the Office of Case Intake and Management of the Department ("OCIM") handles all face-to-face contacts under the program. *fn7" Any requests for services resulting from such outreach activity are referred by the CHAP Central Office to independent public and private health providers who have been brought into the program by that Office to perform the actual screening, diagnosis and treatment under contract with the City. Each CHAP provider assumes responsibility for providing all the components of the CHAP examination according to the State-prescribed periodicity schedule and for generally encouraging eligibles to participate fully in the program. *fn8"

 The CHAP Central Office is also responsible for following-up on all screenings to assure that any child requesting service is examined, but again, any follow-up by personal contact on children who fail to keep appointments is assigned to OCIM. Finally, referral for and follow-up on diagnosis and treatment is the responsibility of the provider who has screened the child and determined him to be in need of such care.

 Thus, while the ultimate accountability for implementing EPSDT under the federal scheme rests with the State, the State has delegated the day-to-day operations of CHAP to the City and, in particular, to the CHAP Central Office of the City Department of Social Services. However, the State Department of Social Services is responsible for overseeing the City CHAP operation and the State Department of Health is required to set and enforce standards of health care given by the providers. On the City level, the City Department of Health is also a monitor of providers both as to the quality of care and the effectiveness of provider follow-up from screening through diagnosis and treatment.

 At present there is no central authority in either the State or City to follow a specific child through every stage of the CHAP system. *fn9" However, as noted, the system does provide for various checks, at each level, to assure that any child who requests CHAP receives both a screening and necessary diagnosis and treatment within the permissible time frames.

 While a central tracking unit would facilitate evaluation of the effectiveness of CHAP, this Court's sole concern is with whether each branch of the present CHAP system has been shown to be performing the function assigned it so that the sum of the parts is an EPSDT program in substantial compliance with the federal regulatory scheme.

 We consider separately each of plaintiffs' claims of defendants' shortcomings with respect to CHAP.

 I. Identification of the eligible population.

 Plaintiffs at the outset contend that the defendants have not satisfied the federal requirement that the State provide for identification of all eligible individuals under EPSDT. *fn10" The City set up a computerized identification system that has been expanded over the course of CHAP implementation to contain a master file listing all families eligible for EPSDT in New York City which is now updated every four to six weeks. The file is organized on a family specific basis to coordinate with the preexisting City-wide computer system, but the ages of all children within each family are noted and updated periodically.

 While the figures change monthly, the State and City estimate that the number of children eligible for EPSDT in New York City is approximately 750,000. One of plaintiffs' experts disputes this estimate because it fails to include the "turnover" of families entering and leaving the New York City assistance rolls. But the City is aware of this turnover and, in an effort to reach all eligibles with dispatch, it has recently programmed the computer to send a packet of information on CHAP services to all families newly eligible for CHAP each month.

 Plaintiffs also charge that defendants "purge" from the "target" population all children deemed to be under appropriate medical supervision and, thus, not in need of CHAP services. There is, of course, no need to duplicate preventive health services for a child who is already receiving adequate medical examination, diagnosis and treatment. Plaintiffs' specific charge is that the City accepts the word of the parent without verifying that in fact the child is receiving medical care equivalent to that provided by CHAP. The City readily admits that when a parent who has been solicited refuses CHAP services for a child because the child is already receiving medical care from a private physician or other deliverer of medical services, the City does not attempt to verify the parent's representation. While verification is optional under the State CHAP Plan, the evidence establishes that the City did attempt to get confirmation from a child's health provider but discontinued these efforts because most health providers failed to respond and compliance could not be enforced.

 There is no federal requirement that verification be made. The obligation of the State and the City is to provide screening services in all cases when requested. The City does not remove any child from its computerized master file of eligibles on the basis of the parent's representation that he is receiving medical care. Rather, only certain computer-generated notices to that child are held up until the child is due, under the State-prescribed periodicity schedule, for another screening. But, as we will see, computer notification is only one aspect of the City's extensive outreach program.

 Plaintiffs allege, further, that even if the City were verifying alternative care, the State standard for determining appropriate medical supervision is not on a par with the CHAP screening components. The State considers a child to be receiving appropriate medical care and thus not in need of CHAP services if the child is being seen by a physician at prescribed intervals without reference to the specifics of actual treatment. The State is not attempting to determine equivalent care on a check-list basis; it is concerned with maintaining an existing viable physician-child ...

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