352 Holding Health Insurance Marketplaces Accountable 2015
portant victories for Medicaid beneficiaries come not in the form of trial
court victories, but negotiated consent decrees.114 Settlements in the form of
consent decrees are an important part of privately enforcing Medicaid rights
because they often contain more detailed requirements than an injunction
issued by the court at the end of a trial.115 Often, Medicaid litigation comes
in the form of a statewide class of beneficiaries seeking to reform a policy
or practice.116 By negotiating a consent decree, plaintiffs can obtain more
thorough and detailed commitments from the state Medicaid agency than
would be contained in an injunction.117 For example, the consent decree ultimately approved in the Frew v. Hawkins litigation to provide children
with EPSDT services contained eleven different actions the Texas Medicaid
program agreed to take to correct its failures, including agreements to improve transportation services, increase payments for dental and physician
services, provide case management services to children, hire more caseworkers, and expand outreach efforts to families.118 Another consent decree,
entered after defendants were found liable for their failure to provide adequate pediatric care, required defendants to “(1) conduct public information
campaigns; (2) provide additional notices and handbooks in English and
Spanish; (3) develop and maintain an information and referral program to
recruit additional providers; (4) develop a bonus program for providers to
encourage proper billing; (5) provide additional training for caseworkers;
and (6) provide reports.”119 Other settlements have included provisions as
precise as requiring states to revise brochures and public marketing materi-
als.120 Entering the settlement as a consent decree allows federal courts to
maintain jurisdiction over the case and gives the plaintiffs the ability to return to court to enforce the decree through the court’s contempt power.121
These consent decrees enable advocates to achieve important policy reform—often statewide—with continued monitoring and oversight by the
attorneys and the federal courts.
114. See Zaring, supra note 12, at 1046 (“institutional reform litigants face powerful
incentives to agree on a remedy rather than waiting for the district court to impose one”).
115. Rosenberg, supra note 12, at 13, 16–18.
116. See supra Section II. A.2 (discussing history of private class actions to enforce the
118. See PERKINS, supra note 65, at 6-7.
119. Id. at 10. see also Hawkins ex rel. Hawkins v. Comm’r of New Hampshire Dep’t
of Health & Hum. Servs., CIV. 99–143–JD, 2004 WL 166722, at 6 ( D.N.H. Jan. 23, 2004)
(requiring compliance with EPSDT law and allocating $1.2 million for EPSDT services).
120. Perkins & Boyle, supra note 11, at 132.
121. Anthony DiSarro, Six Decrees of Separation: Settlement Agreements and Consent
Orders in Federal Civil Litigation, 60 AM. U. L. REV. 275, 293, 300 (2010).