Strike Two … Judge Upholds Temporary Injunction on HHSC’s Therapy Rate Cuts

On Monday, the State, for the HHSC, filed an appeal to the state court in Travis County to both dismiss the TRO and to have the judge rule that he could not preside over the case because of jurisdictional purposes. The judge, Tim Sulak, refused both appeals. Then on Tuesday, in the continuation, the judge ruled on upholding the temporary restraining order as a temporary injunction, further damaging HHSC’s case for going forward with the therapy rate cuts. The State will almost surely appeal, but this process, because of the evidence and clarifying data needed and of possible restrategizing, will be a long haul, anywhere from 3 to 9 months. The burden of persuasiveness to the court is now fully on the side of the State on behalf of the HHSC in its defense against a permanent injunction, which the plaintiffs are requesting.

At least two things were made clear in this round of judgment, (1) the State did not bother to display any real quantitative evidence of access to care impact problems as a result of implementing the cuts – throwing that back to the plaintiffs to prove and (2) the State threw back the blame for this lack of evidence to the TAMU-SPH study. As reported by others, TAMU fought back and said it was not told to do that in the study parameters provided by HHSC. In addition the rate analysis methodology was still questioned by the judge – there was no clear display of how the cuts were calculated using any of the appropriate and allowed means in the Texas Administrative Code (TAC). As pointed out here in an earlier article, rate methodology can be access-based or resource-based. The HHSC implemented neither of these two approaches when first using state commercial median rates and then a random (and unknown) 11-state Medicaid median rate panel.

The most ostensible part the State’s defense of HHSC’s tactics was their insistence that therapists should be the ones to show access to care impact and not their own analytics teams. This means that the therapy industry, not given timely access to all raw data by HHSC for the last few years, had to have figured out if the numbers pointed to economic instability in the industry and therefore access to therapy care shortfalls in the state without adequate state data being made available to them – essentially shooting in the dark with the HHSC not bothering to give a mere flashlight to look for the data. This is not what prior injunctions have told the HHSC to do – they themselves must show that no access to care problems would persist under certain rate conditions – as the past court-upheld series of Frew injunctions directed.

This brings to the front now, the issue of the second cost-cutting proposal that the HHSC has put forth – the so-called therapy benefits policy changes slated to be implemented in January 2016. HHSC has established a second stakeholders meeting to look at four specific items in that proposal, including the medical necessity bar of a std dev. of 1.2 in standardized testing in order to qualify for some therapy regiments (ST). None of the home health changes were mentioned and hence the timed unit conversion is still “on the books” to be implemented. This will likely trigger another TRO on behalf of the home health therapy industry.

In the meantime, the State has various options to go forward with their rate cut proposal. They could appeal to the court based on some other issue that may challenge the court’s jurisdiction in fiscal matters (not likely since that one was struck down) or they could do another retreat and proposal another rate reduction package using a legal methodology, but with large cuts. The later will be hard to do without an access to care impact study and these types of studies take a lot of time as they are dependent on long-term causes and changes within the communities affected.

In the midst of all our analysis of the situation, it stubbornly and simply comes down to our humanity, to what was pointed out to me yesterday by a client (and has been pointed out in this blog before), a “tragedy of the commons” economic problem and to the mistaken notion by many politicians and analysts that it is a zero-sum game. No one wins when many that are less advantaged than us go the way of the forgotten. It haunts both our internal appeals to goodness and fiscal responsibility. The cost of noncompliance, of neglect, in this case, the well being and maintenance of less advantaged children, is magnitudes of orders larger than the cost of implementing their care, especially put in the light of our plentitude in our state coffers. Those not wanting to know that cost by their apathetic view that it will either not or should not affect them, do not know the dynamics of the complex economics of our society and how it intrinsically ties back to their existence on the streets and in their places of occupation. By letting others fork the “bill” for such things leads to their own demise in the form of a less passionate and functioning society within the realms of commerce.

While visiting a client in Austin yesterday and as we awaited word of the TRO trial, just minutes away in a state courthouse, as I approached my car, I was greeted with a scenario in which a very determined mother of two disabled children was struggling to prepare them to be wheeled into the rehab. Without a thought (as any of you would have done), I ran to offer my help, in any small way she would accept. Her proudness had forced her to say she was fine (as she certainly was – as she had done these tasks countless times and was a regular part of her life struggles). At that point, we both made a silent determination that I was merely a very small and temporary extension of her and my help was as much for me as it was for her and her two children. She accepted my offer and we both wheeled those two extraordinary young people up the ramps and into the rehab. Among the many things that impressed me was her preparedness – she had all the children’s notes, props, and tools on the wheelchairs, ready to take out and use during their therapy regimens. She then thanked me, but the thanks had to go to her and her children instead for their continued fight to be part of all our lives, wherever we are and whom we are. They are the opposite of burdens – they are essential to our own saneness and self-worth. They are necessary for us to go forward in our own lives, facing our own very small challenges. This is the essence of the fight to keep therapy care going for them and really, a vital mental and psychological therapy for us to conquer our bumps in life. We are all evidently syneristic in our internal struggles. Therapy is a large part of our future investment for our own survival.