Frew, Linda, et al. v. Hawkins, Albert, Texas Health and Human Services Comm., et al. (01/14/2004)

Questions presented: (1) Do state officials waive 11th Amendment immunity by urging the district court to adopt a consent decree when the decree is based on federal law and specifically provides for the district court's ongoing supervision of the official's decree compliance? (2) Does the 11th Amendment bar a district court from enforcing a consent decree entered into by state officials unless the plaintiffs show that the "decree violation is also a violation of a federal right" under 42 U.S C.? 1983? (3) Does the failure of state officials to provide services required by the Medicaid Act's Early and Periodic Screening Diagnosis and Treatment (EPSDT) provisions violate the right that Medicaid recipients may enforce pursuant to ? 1983?

BY TERESA BLACK, MEDILL NEWS SERVICE

When several Texas parents settled a healthcare lawsuit with state officials in 1996, they expected a Medicaid program for children to improve. Needy children would receive health screenings. They would get help finding specialists. They would not suffer unnecessarily for want of basic medical treatment.

But within a few years, Texas health officials pulled the rug out by claiming courts had no authority to enforce what had been agreed on in the settlement.

Frew v. Hawkins started as a class action suit against the Texas Health and Human Services Commissioner and others filed on behalf of children who received inadequate healthcare under a federally mandated program for the poor, called Early and Periodic Screening, Diagnosis and Treatment (EPSDT).

Specifically, plaintiffs said EPSDTs policies did not ensure that eligible children received health, dental, vision and hearing screens. The program also failed to remedy medical conditions caught by screening services and did not service all areas of the state equally, they said. In addition, case management was not available to all those who needed it and the state did not meet participation goals set by the U.S. Department of Health and Human Services, according to the plaintiffs.

The case was settled through a consent decree, which is an agreement between parties enforceable by the court. The lengthy and comprehensive document was approved by a district court in 1996. It detailed procedures for Texas health officials to meet federal guidelines.

Two and a half years later, Linda Frew and other parents complained that obligations were not being met. The court then demanded that the state present an action plan for remedying violations of the consent decree.

Instead, Texas health officials contended the healthcare program had improved substantially and appealed to the 5th Circuit Court of Appeals, pleading immunity from enforcement under the 11th Amendment.

The language in the 11th Amendment provides for state sovereignty, whereby states cannot be sued in federal court by individuals from other states or by foreigners. The U.S. Supreme Court has interpreted this protection to encompass nearly all lawsuits brought against a state, even by residents of the state, that pertain to federal law.

In a unanimous decision, the 5th Circuit sided with the Texas health officials and validated their claim to immunity from enforcement of the consent decree.

"A fundamental rule of federal jurisdiction, of which the Eleventh Amendment is an exemplification, is that the judicial power of the federal courts granted by the Constitution does not extend to suits by private parties against the states," Judge Thomas Reavley wrote.

"Regardless of what the parties agreed to in the consent decree, the Eleventh Amendment is jurisdictional in the sense that it is a limitation on the federal courts judicial power," Reavley wrote, citing the 1998 U.S. Supreme Court case Calderon v. Ashmus. "The Eleventh Amendment Ôis a specific constitutional bar against hearing even federal claims that otherwise would be within the jurisdiction of the federal courts," he wrote, quoting the 1984 Supreme Court opinion in Pennhurst v. Halderman.

The 5th Circuit found that states have to "unequivocally" waive protection for a federal lawsuit to proceed, and in this case, Texas state officials did not.

In addition, the court said in order for a federal court to enforce a consent decree, the decree violation must infringe on a federal right. The court used "the Blessing test" four factors based on the 1997 Supreme Court opinion in Blessing v. Freestone to determine whether a federal right was violated. In Frew v. Hawkins, the court found that none was.

On March 10, 2003, the U.S. Supreme Court agreed to hear the case, limiting review to the first two questions in Frew's petition for certiorari.

The Court is being asked to focus on whether states implicitly forfeit 11th Amendment rights when they enter into a court-approved consent decree based on federal law that requires ongoing judicial supervision. The Court is also being asked to decide whether in order for a district court to enforce a consent decree, the violations must also be violations of federal rights.

Should the Court find that states do not automatically relinquish immunity upon acceptance of a consent decree, plaintiffs may no longer choose to settle out of court for fear the agreement will later be in effect nullified.

Furthermore, a requirement that plaintiffs must prove violations of federal rights would represent a significant additional burden. Prior cases show such proof is onerous and subject to stringent tests. Blessing v. Freestone serves as an example, where the Court held in order to get relief for deprived rights, the plaintiff must prove there was a violation of a federal right, not just federal law.

Frew v. Hawkins may test the limits of the Supreme Court's far-reaching containment of federalism. The 11th Amendment butts heads with the Constitutions "supremacy clause," which allows federal authority to supercede state power. Supreme Court decisions in recent years reflect a shift away from federal authority toward state sovereignty, allowing the 11th Amendment to provide more and more power to the states.

Many recent cases involving the 11th Amendment have examined whether Congress can force states to conform to federal law. Frew v. Hawkins, however, will test not the actions of Congress, but rather what state officials did within the context of a lawsuit.

On Jan. 14, 2004, a unanimous Court sided with Frew, holding that enforcement of the consent decree does not violate the 11th Amendment.

Noting that Texas was challenging only the enforcement of the decree, not its entry, the Court concluded that enforcing the decree vindicates an agreement that the state officials reached to comply with federal law.

Writing for the Court, Justice Anthony Kennedy said, "Federal courts are not reduced to approving consent decrees and hoping for compliance. Once entered, a consent decree may be enforced."