Judge Temporarily Halts Cuts to Children's Therapy

Deep cuts to a therapy program for poor and disabled children will not take effect Oct. 1, a state district judge ruled Tuesday afternoon — the second such delay in recent weeks.

“Procedurally I'm not making a determination that these acts are valid or invalid,” said State District Judge Tim Sulak in his announcement that he would grant a temporary injunction to prevent the state from slashing payments to therapists. But he said he made his ruling in part because he’d been convinced the cuts could jeopardize the health of children receiving the therapy services.

It marked the first decision in a series of legal challenges filed by therapy providers and families of children with disabilities, who seek to prove that by slashing payments to therapists, the state will cause as many as 60,000 children to lose access to those services. The idea is that the low pay will force providers to drop out of the program.

State lawmakers this year ordered the Texas Health and Human Services Commission to reduce funding for therapy services by roughly $350 million in state and federal funds over two years. Those savings would primarily come from reductions in the rates paid to therapists by Medicaid, the public insurance program for the poor and disabled — in some cases by about 20 or 25 percent.

But that seemingly simple goal to reduce payments has been complicated by some ambiguous language in the state budget, which directs the health commission to consider “access to care” when applying the cuts. Families of children who need the services say the speech, physical and occupational therapy covered by Medicaid can be life-saving — by helping kids learn to nurse, walk and speak, for example — and that the state is poised to limit access by forcing providers to drop out of the program.

Another Travis County judge dismissed a previous lawsuit filed by family members of children with disabilities over the state’s first announced plan to the reduce payments — originally scheduled for Sept. 1 — after the state announced it would “start over” in deciding how to implement the budget cuts.

The health commission says it’s just following the Legislature’s orders by implementing the cuts, and that opponents’ claims providers will stop treating disabled children are exaggerated. In closing arguments, Eugene Clayborn, a lawyer representing the state, said there was “no evidence” of critics’ arguments that “the sky’s going to fall in” because of the cuts.

“There will still be access to care,” he said.

The lawyers suing the state focused much of their argument on trying to disprove that point. Owners of home health agencies in North and Central Texas testified that their businesses would be forced to close, including in markets where they are the main provider of therapy care.

And they presented evidence from inside the health commission that shed light on the agency’s discussions around access to care.

One director at the health commission testified that state employees had been told never to say that they were certain the cuts would not jeopardize access to care.

And an internal memo from the health commission presented by Dan Richards, a lawyer suing the state, warned that payment cuts to therapists “could have serious negative implications for the maintenance of an adequate therapy provider base.”

The Texas Health and Human Services Commission, which is charged with implementing the therapist payment cuts, is expected to appeal the decision.