Lawyers for TennCare say a federal lawsuit against the state Medicaid agency should be dismissed because all 11 people who sued over delays and barriers to obtaining coverage now have it.
They will make their argument Friday, while attorneys for those 11 plaintiffs will seek to persuade a federal judge to grant the case class-action status — a move that would allow potentially thousands of other Tennesseans to join the suit. But behind the scenes, the opposing legal teams have worked together to get a limited number of people enrolled, including those plaintiffs.
TennCare had agreed to prioritize up to 100 people lost in the system who had waited months to learn about eligibility, but it asked the Tennessee Justice Center not to "broadcast" anything about the agreement, according to papers filed by Christopher Coleman, a lawyer for the justice center.
Michele Johnson, executive director of the justice center, said the fact that her organization did all it could to get health coverage for its clients does not diminish the legal standing of the case. She said definition of the class is the key point.
"The law doesn't penalize lawyers for putting their clients' interests first if the problem is something that is not just that one client's but is something that could be happening to lots of other people," Johnson said. "These clients' lives are at stake. That comes first. The well-established law means our case is not jeopardized by putting vulnerable Tennesseans first."
The legal dispute centers on TennCare's decision to stop staffing state offices with personnel to help people fill out Medicaid applications that went directly to the stage agency. Instead, TennCare last year began requiring that all applications go through the federal health insurance marketplace, HealthCare.gov. A behind-schedule $35.7 million state computer system was supposed to accept and process application files transferred from the marketplace, but the system is still not operating, and TennCare cannot predict when it will be.
The Tennessee Justice Center, along with the Southern Poverty Law Center and National Health Law Program, is asking the court to force the state to set up a better system for processing Medicaid applications and deciding eligibility.
Michael W. Kirk of Washington, D.C., the lawyer for TennCare, notified the judge on Wednesday that the agency had enrolled all the plaintiffs, and in those court papers cited case law as to why this change of circumstance was grounds for dismissal. U.S. District Judge Todd Campbell, who was appointed to the bench by President Bill Clinton and confirmed by a Republican-majority Senate in 1995, accepted the late filing. He directed lawyers for the plaintiffs to file a response before Friday's hearing.
In another court filing, Coleman identified nine additional people who have faced barriers getting their Medicaid applications processed, including Tennesseans seeking nursing home level coverage — a TennCare program called CHOICES that stands alone from the health insurance marketplace. They are examples of the people who would be added to the lawsuit if Campbell grants it class-action status.
Kirk contends that the federal government, not TennCare, is to blame for the problems with Medicaid applications because of changes brought about by the federal health law.
"CHOICES has zero to do with the Affordable Care Act," Johnson said.
Kirk filed papers saying the plaintiffs should have named the federal government as a defendant. Campbell directed the U.S. attorney to weigh in on this argument, but that office asked for more time — an extension the judge did not grant.
Assistant U.S. Attorney Mark Wildasin met the deadline to file something but gave no input.
"The United States respectfully informs the court that it is unable to respond within the time provided by the court," he wrote. "However, the United States is continuing to review the issues raised in a serious and expedited manner and will, if appropriate, file a statement of interest in this case."
Reach Tom Wilemon at 615-726-5961 and on Twitter @TomWilemon.
A case of TennCare CHOICES hurdles
The case of Derrick Simpson trying to get nursing home level coverage for his parents is one example of the people who might be added to the lawsuit if a judge grants it class-action status.
Simpson moved into the Charlotte home of his parents to take care of his 66-year-old mother, who has Alzheimer's disease, and his 75-year-old father, who has rheumatoid arthritis and has suffered five strokes. He applied for TennCare CHOICES coverage for them in February and submitted the required financial information to determine eligibility.
TennCare approved his mother for two hours of daily in-home care in March, but that care is still not being provided because the managed-care organization has not set up staffing.
TennCare notified him in February that his father qualified for care, but it could not be approved until financial eligibility was determined. Simpson called the TennCare call center, Tennessee Health Connection, in April and was told to wait 10 days to hear something about eligibility.
"I have called the Tennessee Health Connection at least once a week since then," Simpson said. "They have never been able to tell me whether my father is financially eligible for TennCare CHOICES. It has seemed as if the operators were reading from a canned script."
He said operators have told him on numerous occasions that they could not speak to him because they could not find his power of attorney on record. He said he had informed operators that his father's financial information was identical to his mother's.
"Calling Tennessee Health Connection is like talking to a wall," he said.
He submitted a second application for his father in April. On Aug. 1, he got his first call from TennCare, but the person on the line had the wrong address for his father. The caller said she would send another application for him to complete.
On Aug. 8, he received a letter dated Aug. 1 telling him he had 10 days from the date of the letter to provide a list of documents. He submitted all the documents, which he said were duplicative of what he had sent before.
On Aug. 13, he received a call informing him that his father had been approved for CHOICES. He telephoned the call center later that day to inquire about getting his father registered with the same managed-care organization as his mother.
"Tennessee Health Connection said there was no record of my father being eligible for TennCare," Simpson said.
However, he received a notice by mail that his father had been deemed eligible.
On Aug. 15, he telephoned the call center again to try to get the coverage effective as of the original application date in February. The operator told him he would have to file an appeal to get the date changed.
"My experience convinces me that TennCare is trying to make people give up and not seek services so that the state can save money," Simpson said.
— Court declaration of Derrick Simpson