Medicare Compliance & Reimbursement

Did Texas waive its immunity under the federal constitution's 11th Amendment by entering into a consent degree governing its obligations to poor children under Medicaid's early and periodic screening, diagnostic, and treatment services program?

The United States Supreme Court took up this question March 10 when it agreed to review the decision of the U.S. Court of Appeals for the Fifth Circuit in Frew v. Gilbert.

The Fifth Circuit ruled that Texas did not waive its 11th Amendment immunity, thus frustrating the efforts of the Frew plaintiffs to enforce the consent decree that they, and the federal trial court which entered the decree, said the state was violating. By its terms, the 11th Amendment only bars federal courts from hearing suits by citizens of one state against another state, but the Supreme Court has construed it as barring suits against a state by its own citizens - as in Frew - as well.

Texas had urged the trial court to enter the decree in settlement of plaintiffs' initial suit , which was allowed under the 11th Amendment because it sought only prospective, injunctive relief against state officials in their official capacities. The suit charged that the Texas' EPSDT program was not providing federally mandated services. In successfully urging the Supreme Court to take the case, the plaintiffs said it was unfair for Texas to bargain for a decree specifically providing for ongoing judicial monitoring of its conduct, then to resist enforcement of that very decree.

The Supreme Court will also address whether the 11th Amendment limits enforcement of consent decrees against state officials to only those cases where a violation of the decree is also, even without the decree, a direct violation of plantiffs' enforceable federal statutory rights.