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									                            IN THE UNITED STATES DISTRICT COURT
                           FOR THE NORTHERN DISTRICT OF ILLINOIS
                                      EASTERN DIVISION

MEMISOVSKI, et al.,                               )
                                                  )
                               Plaintiffs,        )
                                                  )
                   v.                             ) Case No. 92 C 1982
                                                  )
BARRY S. MARAM, Director of the                   ) Judge Joan Humphrey Lefkow
Illinois Department of Public                     ) Magistrate Judge Martin C. Ashman
Aid and CAROL L. ADAMS,                           )
Secretary of the Illinois Department              )
of Human Services,                                )
                                                  )
                               Defendants.        )

        CHILDREN CLASS' RESPONSE TO DEFENDANTS' MOTION IN LIMINE
             TO EXCLUDE EVIDENCE FROM SAMUEL S. FLINT, Ph.D.

                   Plaintiffs Memisovski, et al. (the "Children Class") have retained Samuel S. Flint,

Ph.D., to provide expert testimony in this matter concerning the Illinois Medicaid program, as

administered by defendants Maram and Adams (the "State Officials"). Based on his expert

analysis, Dr. Flint will testify that: (1) Medicaid reimbursement rates in Illinois are much lower

than the reimbursement rates paid by other payers (such as Medicare and private insurance);

(2) Illinois Medicaid reimbursement levels are less than would be required to pay for average

private practice overhead expenses in Chicago and Cook County; (3) a survey of relevant

published studies within the field of health economics, including studies that he participated in

conducting, shows that the level of Medicaid reimbursement is the main factor in a physician's

decision to accept, limit, or not accept Medicaid-insured patients; and (4) based on all of these

findings, Illinois Medicaid reimbursement rates are likely insufficient to enlist enough child

health providers in Cook County to make such medical services available to Medicaid recipients

to the same extent as such services are available to the general population in Cook County.



# 420354.v05 8/6/12 10:34 PM 90C$05!.DOC                                                       9599.001
               The State Officials' Motion in Limine to exclude testimony and documents

provided by Dr. Flint fundamentally misinterprets the law of expert testimony and

mischaracterizes the testimony to be provided by Dr. Flint. Most glaringly, the State Officials

would seek to exclude Dr. Flint's testimony, as well as his Report, the materials upon which he

relied, and all documents in any way relating to Dr. Flint's opinions, based primarily upon the

State Officials' repeated attacks upon the concluding sentence of Dr. Flint's lengthy Report. See

Motion In Limine, ¶ 4. The State Officials' attempt to reduce Dr. Flint's Report to its final

sentence, while virtually ignoring the preceding 12 pages of supporting analysis, is indicative of

the inaccurate view of Dr. Flint's testimony presented by the State Officials to this Court.

               As set forth herein, the testimony and other evidence to be provided by Dr. Flint

is both relevant and reliable, and will greatly assist the Court in addressing the complex issues

raised in this litigation. As a result, the State Officials' Motion in Limine should be denied.


I.     DR. FLINT'S QUALIFICATIONS AND ANALYSIS.

               Dr. Flint's qualifications as an expert in the fields of health policy and health

economics are manifest. Dr. Flint has a Ph.D. from the University of Chicago's School of Social

Service Administration, where his dissertation addressed the medical care provided to children

on Medicaid, as well as a Masters in Social Work from Florida State University. He is an

Adjunct Professor at North Park University, where he teaches graduate level courses in health

economics, and he works as an independent consultant on health care and social policy for

medical organizations, government entities, and advocacy groups.            From November 2002

through January 2003, Dr. Flint managed the Health Care Transition Team for Illinois Governor

Rod Blagojevich. Dr. Flint also spent 18 years with the American Academy of Pediatrics,

serving as the Associate Executive Director of that organization from 1993 to 1998, where he



                                                 -2-
conducted extensive research on Medicaid and child health policy. Dr. Flint has published

several articles in peer-reviewed journals on health economics and health policy, many of which

specifically address the care of children under Medicaid. He has also published several textbook

chapters in his field. The State Officials can make no credible argument that Dr. Flint is

unqualified to render an expert opinion in this matter.

               The analysis provided by Dr. Flint is straightforward, reliable, and an important

part of the Children Class' case. First, Dr. Flint analyzed the reimbursement levels paid by the

Illinois Medicaid program to physician providers for the 22 most frequently billed pediatric

medical services, and compared those payment levels to the payments made by other payers,

such as Medicare and private insurance. Dr. Flint concluded that the Illinois Medicaid program

pays significantly less than other payers for the same pediatric medical services. For example,

Dr. Flint determined that Illinois Medicaid pays roughly half of what Medicare pays for the same

service. Comparisons of Medicaid with private payer rates were even more unfavorable.

               Dr. Flint's second analysis started with a review of average practice costs of

physician practices, to determine whether the rates paid by Illinois Medicaid were even sufficient

to sustain a medical practice. Based on this analysis, Dr. Flint determined that the Illinois

Medicaid program reimbursements were insufficient to even meet a practice's overhead expenses

(i.e., costs excluding physician compensation). As Dr. Flint wrote at page 9 of his Report:

       These data demonstrate that a pediatrician practice relying solely on Medicaid
       beneficiaries' (maximum) reimbursements could not survive since Medicaid pays
       nearly 10% less than median practice costs. Even a physician willing to work for
       free could not keep a practice open.

Dr. Flint concludes that the low reimbursement rates paid by Medicaid in relation to practice

costs have myriad effects on access to care for Medicaid beneficiaries: not only do pediatricians

choose to treat privately insured patients rather than Medicaid-insured patients when possible,



                                                -3-
but low Medicaid rates could influence where a physician chooses to open a practice in the first

instance. Dr. Flint further noted the substantial evidence in existing studies that even physicians

with the ability to take on additional patients "are shying away from Medicaid-insured children."

               Dr. Flint's third analysis started with his canvassing of the available research in

the field of health economics to determine the impact of Medicaid reimbursement levels on a

physician's willingness to open his or her practice to Medicaid-insured patients.          Dr. Flint

compared the impact of rates to the impact of other factors, including "all the statistically

significant factors shown to have an impact on physician participation" (these 14 other factors

are specifically listed in Appendix B to Dr. Flint's report). Dr. Flint determined that the body of

existing research in this field, which includes his own work, shows that "the overwhelmingly

predominant factor in the decision to participate [in Medicaid] at all, participate in a limited

fashion, or participate fully, is physician fees." Dr. Flint's analysis of the factors that influence

physician participation in Medicaid directly addresses and refutes the State Officials' oft-stated

speculation that reimbursement rates are not a significant factor in a physician's willingness to

participate in Medicaid compared with unspecified "other" factors.

               Dr. Flint's fourth analysis, which is the only one the State Officials spend a

significant time addressing, takes into consideration his first three sets of analyses and

conclusions.   Dr. Flint concludes that "since the Illinois Medicaid program does not pay

competitive reimbursement rates, insufficient access for Medicaid beneficiaries should be

expected in Cook County." Dr. Flint thus provides the analytical framework and support for the

lack of access which the Children Class will establish as a factual matter through the testimony

of physician and patient fact witnesses.

               Dr. Flint's multi-layered analysis, as set forth above, is a sophisticated

examination of the economics of pediatric medical practice and the economic influences on the

                                                -4-
medical care available for Medicaid-enrolled children, which is uniquely within Dr. Flint's field

of expertise. However, the State Officials ignore the vast majority of this analysis, and instead

address Dr. Flint's opinions as though the concluding sentence of his Report were the only

statement he was prepared to offer to the Court. See Motion in Limine, ¶¶ 4, 11 ("Dr. Flint's

opinion that 'since the Medicaid program does not pay competitive reimbursement rates,

insufficient access for Medicaid beneficiaries should be expected in Cook County[,]' is not

reliable."). A proper review of Dr. Flint's work shows that this evidence is admissible.


II.    THE COURT'S "GATEKEEPING" ROLE UNDER DAUBERT.

               The standards for admission of expert testimony and evidence in the federal

courts are well established by Federal Rule of Evidence ("FRE") 702 and the Supreme Court's

decisions in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Kumho

Tire Co. v. Carmichael, 526 U.S. 137 (1999). As the Daubert court explained, trial courts are to

act as a "gatekeeper" with respect to proffered expert testimony:

       Faced with a proffer of expert scientific testimony, then the trial judge must
       determine at the outset, pursuant to Rule 104(a), whether the expert is proposing
       to testify to (1) scientific knowledge that (2) will assist the trier of fact to
       understand or determine a fact in issue.

Daubert, 509 U.S. at 592.1      It is incumbent upon the courts to "ensure the reliability and

relevancy of expert testimony" by making certain that the expert "employs in the courtroom the

same level of intellectual rigor that characterizes the practice of an expert in the relevant field."

Kumho Tire, 526 U.S. at 152. However, courts in the Seventh Circuit have noted that "[t]he

rejection of expert testimony is the exception rather than the rule, and 'the trial court's role as

gatekeeper is not intended to serve as a replacement for the adversary system.'" Spearman

1
        Kumho Tire clarified that the "basic gatekeeping obligation" of Daubert applies to all
expert testimony, and not just testimony based on "scientific" knowledge. See Kumho Tire, 526
U.S. at 147.

                                                -5-
Indus., Inc. v. St. Paul Fire and Marine Ins. Co., 128 F. Supp. 2d 1148, 1150 (N.D. Ill. 2001)

(quoting advisory committee note to Fed. R. Evid. 702).


III.   DR. FLINT'S METHODOLOGY IS RELIABLE.

               The first step in evaluating the admissibility of proffered expert testimony is

determining whether the testimony is reliable. The Seventh Circuit has expressly noted that this

determination is to address the expert's methodology, and not the expert's results:

       [W]e emphasize that the court's gatekeeping function focuses on an examination
       of the expert's methodology. The soundness of the factual underpinnings of the
       expert's analysis and the correctness of the expert's conclusions based on that
       analysis are factual matters to be determined by the trier of fact, or, where
       appropriate, on summary judgment.

Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000); see also Daubert, 509 U.S. at 595

("The focus, of course, must be solely on principles and methodology, not on the conclusions

that they generate."). The Supreme Court has noted that "the trial judge must have considerable

leeway in deciding in a particular case how to go about determining whether particular expert

testimony is reliable." Kumho Tire, 526 U.S. at 152.

               The "reliability" requirement under Daubert has been described as requiring a trial

court to "make certain that an expert, whether basing testimony upon professional studies or

personal experience, employs in the courtroom the same level of intellectual rigor that

characterizes the practice of an expert in the relevant field." Kumho Tire, 526 U.S. at 152. The

Ninth Circuit has noted that "[e]stablishing that an expert's proffered testimony grows out of pre-

litigation research or that the expert's research has been subjected to peer review are the two

principal ways the proponent of expert testimony can show that the evidence satisfies the first

prong of Rule 702." Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1318 (9th Cir.

1995) ("Daubert II").



                                                -6-
                Dr. Flint's testimony (i) directly "grows out of pre-litigation research" that (ii) has

been published in peer-reviewed journals, satisfying both of the "principal ways the proponent of

expert testimony can show that the evidence satisfies the first prong of Rule 702." Id. The State

Officials' challenge to the reliability of Dr. Flint's analysis is without merit.

        A.      Dr. Flint Reliably Compared Medicaid Rates To Other Payers' Rates.

                Dr. Flint's first analysis begins with a comparison of the reimbursement rates paid

by Medicaid with the reimbursement rates paid by other payers in Cook County, including

Medicare and private insurance. Dr. Flint's analysis establishes that Medicaid rates paid by the

State of Illinois are dramatically lower than the rates paid by other payers providing coverage to

the general population in Cook County; indeed, Dr. Flint found that Medicaid typically pays less

than half of what other payers in Cook County will pay for the same medical services.

                Dr. Flint's report discusses in detail how he derived the data for this comparison.

For Medicaid rates, IDPA provided the data in response to discovery requests by the Children

Class. For Medicare rates, Dr. Flint determined the rates from publicly available data, which he

has analyzed in his prior work. Dr. Flint also surveyed two Cook County pediatric practices to

establish a reliable proxy for private insurance rates (which are more difficult to obtain directly).

Finally, Dr. Flint compared these rates with "All Payer" rates, which encompass a cross-section

of payment rates from all sources, as established by a comprehensive annual survey published in

the November 2002 edition of the journal Medical Economics.2




2
        Although the State Officials criticize Dr. Flint's data on private insurance
reimbursements, Dr. Flint himself acknowledged that this data was "not necessarily
representative" due to the difficulty of collecting such information. However, Dr. Flint found
that this data was within the range of "what a researcher familiar with this field would expect,"
and thus that it served as a valuable tool to confirm his analysis. Notably, the State Officials do
not even address Dr. Flint's data on Medicare or "all payer" rates.

                                                  -7-
               Dr. Flint's comparison of Medicaid and Medicare rates is especially important.

Medicare is a comparable program to Medicaid, as it is a government-operated reimbursement

system designed to provide health insurance to individuals.                 Moreover, Medicare's

reimbursement rates are established through a painstaking collaboration of the federal

government, health policy researchers, the American Medical Association, and many other

medical provider groups. Medicare rates are constantly reviewed and updated with the intention

of providing economically viable rates that are adequate to meet the production costs of medical

services, along with a reasonable profit for the provider.

               Dr. Flint prepared tables showing the mathematical ratios of Medicaid payments

to the median rates paid by the other payers (Medicare, private insurance, and "all payers") Dr.

Flint concluded from this comparison that "Illinois Medicaid pays roughly half of what Medicare

pays for the same service, in the same location, by the same provider," and that the low

reimbursement rates paid by Illinois Medicaid demonstrated "poor competitiveness with private

payers."

               The rate information collected by Dr. Flint to conduct this comparison is reliable,

and the methodology Dr. Flint employed to compare this data is clear. This analysis is similar to

Dr. Flint's own pre-litigation work, such as a 1991 article published in the journal Pediatrics that

conducts similar comparisons over a broad range of states. See Margaret McManus, Samuel

Flint, and Rebecca Kelly, The Adequacy of Physician Reimbursement for Pediatric Care Under

Medicaid, 87 Pediatrics 909 (June 1991). Even the State Officials' proffered expert witness, Mr.

Menenberg, testified in his deposition that he did not have any criticism of the information

presented by Dr. Flint's rate comparison. See 7/31/03 Menenberg Dep. at 203. The State

Officials have provided no basis for questioning the reliability of Dr. Flint's rate data or his rate

comparison methodology.

                                                -8-
       B.      Dr. Flint's Comparison of Medicaid Rates with Practice Costs is Reliable.

               To determine whether a pediatric medical practice could survive serving only

Medicaid patients, Dr. Flint's second analysis compared the rates paid by Illinois Medicaid with

the median costs incurred by physicians to maintain a medical practice, including "overhead"

expenses such as personnel, rent, utilities, clerical, and clinical supply costs. Overhead excludes

any compensation paid to the physician for professional services. Dr. Flint concluded that

Illinois Medicaid rates are insufficient to sustain a typical pediatric medical practice and cover

the practice's overhead costs even where the physician would work for free.

               Dr. Flint derived his information on practice costs from two nationally published

surveys.    First, Dr. Flint consulted a 1998 study conducted by the American Medical

Association, which indicated that the typical median pediatric practice costs total 53.5% of the

practice's gross revenues. Dr. Flint confirmed this figure by comparison with 2001 data from an

ongoing survey being conducted by the Medical Group Management Association ("MGMA"), as

reported in the journal Medical Economics. The MGMA survey similarly estimated median

pediatrician overhead costs as 53.4% of gross revenues.3

               Conducting a straightforward comparison of Illinois Medicaid reimbursement

rates with these measures of median pediatric practice costs, Dr. Flint found that on average,

"Medicaid pays nearly 10% less than median practice costs." In other words, "[e]ven a physician

willing to work for free could not keep a practice open" if that physician were relying solely on

Medicaid reimbursements because Medicaid payments are less than the overhead costs of


3
       As a further check on the reliability of this data, Dr. Flint also examined a study of mean
overhead practice costs conducted by the National Association of Health Consultants in 2001,
which showed that mean overhead practice costs totaled 59.5% of gross revenues. Dr. Flint
excluded this figure from his analysis, which focuses on median values rather than means, but
opines that this third study "adds further credence" to the median values provided by the AMA
and MGMA.

                                               -9-
medical practice. This finding is consistent with Dr. Flint's finding that Medicaid rates in Cook

County are typically half of Medicare rates, which are designed to meet provider production

costs and provide the physician with some compensation for his or her work.

                Dr. Flint's comparison of practice costs and Medicaid reimbursements is reliable.

The data used by Dr. Flint to conduct this comparison is derived from reliable, nationally-

published surveys. Dr. Flint's comparison methodology is straightforward arithmetic. The State

Officials raise no legitimate challenge to the reliability of Dr. Flint's comparison of Medicaid

rates with median practice costs.

        C.      Dr. Flint's Analysis of Physician Participation in Medicaid is Reliable.

                In his third analysis, Dr. Flint examined a body of research, including his own

pre-litigation work, addressing the question of what factors influence a pediatrician's decision to

open his or her practice to Medicaid-insured patients completely, partially, or not at all. Dr. Flint

examined studies addressing pediatricians specifically, as well as studies addressing primary care

physicians and all physicians regardless of specialty. Dr. Flint reviewed 15 relevant studies

analyzing the role of various demographic and policy factors that have been found to have a

statistically significant impact on physician participation in Medicaid.4

                Dr. Flint found that the existing literature addressing the issue of physician

participation in Medicaid shows that "the overwhelmingly predominant factor in the decision to

participate at all, participate in a limited fashion, or participate fully, is physician fees." Dr. Flint

concluded that "virtually all evidence points to low fees as the most powerful disincentive to


4
       The statistically significant factors which studies have found to influence the likelihood
of physician participation in Medicaid are: reimbursement rates, physician specialty, size of
beneficiary population, competition from non-Medicaid payers, managed care/capitated
payments, attitude toward medical bureaucracy, claims processing, paperwork concerns,
geographical practice location, medical school location, board certification status, ethnicity,
gender and age. See Flint Report, Appx. B.

                                                  -10-
child health physician Medicaid participation." As a result, Dr. Flint opines that "when state

Medicaid programs pay too low, children's physicians (like those who treat other age groups)

will opt to treat non-Medicaid beneficiaries first or exclusively."

               Dr. Flint's analysis of the factors that influence physician participation in

Medicaid is reliable, as it is based on a broad analysis and comparison of 15 different published

studies in the field of health economics that directly address this question, including his own peer

reviewed, pre-litigation work. See, e.g., Beth Yudkowsky, Jenifer Cartland, and Samuel Flint,

Pediatrician Participation in Medicaid: 1978 to 1989, 85 Pediatrics 567 (April 1990). The

Seventh Circuit has held that an expert's reliance on studies and research within the published

literature of his or her field can provide a reliable foundation for expert opinion, whether or not

those studies or research are admitted into evidence. See Cella v. United States, 998 F.2d 418,

424 (7th Cir. 1993) (approving expert testimony as to causation based on medical literature

entered as evidence); Nanda v. Ford Motor Co., 509 F.2d 213, 222 (7th Cir. 1974) ("Facts or data

found in the literature of the profession, even though not themselves admissible in evidence,

properly form a part of the basis for an expert's opinion."). Even one of the cases cited by the

State Officials has held as much. See Tyus v. Urban Search Management, 102 F.3d 256, 263-64

(7th Cir. 1996) (noting expert's reliance on "peer-reviewed articles accepted in his profession" as

"well within the range contemplated by Daubert for expert scientific testimony").

               Dr. Flint's analysis of the literature within his field, including his own pre-

litigation work, presents a reliable analysis of the various influences on physician participation in

Medicaid, and withstands scrutiny under Daubert. Dr. Flint's methodology is exemplary, as he

conducted an exhaustive review of the studies (including his own) within his field of expertise,

health economics, which directly address this specific question. The State Officials fail to raise

any serious criticism of Dr. Flint's analysis of this issue. Indeed, the State Officials' position on

                                                -11-
this issue is based on the fundamental misrepresentation that Dr. Flint "does not even

acknowledge that any variables other than rates exist." See Motion In Limine, ¶ 11(A)(v). He

specifically identified 14 such variables. He found, however, they all paled in importance when

compared to rates.5

       D.      Dr. Flint's Conclusions With Respect to Access By Medicaid Recipients in
               Cook County Are Reliable.

               Bringing together the three separate analyses and conclusions described above,

Dr. Flint concluded that "since the Illinois Medicaid program does not pay competitive

reimbursement rates, insufficient access for Medicaid beneficiaries should be expected in Cook

County." This concluding sentence of his Report is the focus of the State Officials' Motion In

Limine, which ignores all of the preceding, supporting analysis presented by Dr. Flint in support

of this conclusion.6 Dr. Flint is well-qualified to draw this conclusion based on his decades of

experience outside this lawsuit studying issues of access to pediatric care for Medicaid

recipients. Moreover, Dr. Flint's conclusion flows directly from his analyses of Medicaid rates

and the impact of such rates on physician willingness to provide care to Medicaid recipients, as

set forth in his Report. The State Officials raise no legitimate challenge to Dr. Flint's underlying

5
        Remarkably, although Dr. Flint directly addresses this point with a significant portion of
his Report, and specifically addresses the impact of rates as compared to more than a dozen
"other" factors specified in his Report, the State Officials still argue in their Motion in Limine
that Dr. Flint "failed to adequately account for other explanations why 'pediatricians' or any other
physicians choose not to treat Medicaid-enrolled children." See Motion in Limine, ¶ 11(A)(v)
("[I]ndeed, the Flint Report does not even acknowledge that any variables other than rates
exist!"). It is difficult to understand how the State Officials can make these representations to
this Court in light of the express language of Dr. Flint's report discussing the 14 other factors.
6
        The State Officials falsely assert, without support, that "[a]n opinion that something …
'should be expected' to cause a particular result, which is all Dr. Flint opined here, does not
satisfy Rule 702." See Motion In Limine, ¶ 11(C)(iv). This statement is simply wrong as a
matter of law. The Seventh Circuit has recognized that "[w]here an expert's hypothetical
explanation of the possible or probable causes of an event would aid the jury in its deliberations,
that testimony satisfies Daubert's relevancy requirement." Smith, 215 F.3d at 718-19. The State
Officials' reliance on tort cases such as Daubert II, which involve dramatically different legal
requirements to establish the causes of action there at issue, are simply inapposite.

                                               -12-
methodologies, and their disagreement with Dr. Flint's ultimate conclusion is not a proper basis

for a Daubert challenge. Dr. Flint's conclusion withstands scrutiny under Daubert.


IV.    DR. FLINT'S TESTIMONY IS RELEVANT.

               The second inquiry required under Daubert is whether the proffered expert

testimony is relevant, i.e., whether it will assist the trier of fact in understanding the evidence or

determining a fact at issue. The Daubert court described this inquiry as one of "fit," and a

determination that the proffered testimony have a "valid ... connection to the pertinent inquiry as

a precondition to admissibility." Daubert, 509 U.S. at 591-92.

               The Seventh Circuit has described the analysis that district courts are to make

when evaluating the relevance of proposed expert testimony:

       When analyzing the relevance of proposed testimony, the district court must
       consider whether the testimony will assist the trier of fact with its analysis of any
       of the issues involved in the case. The expert need not have an opinion on the
       ultimate question to be resolved by the trier of fact in order to satisfy this
       requirement…. The question of whether the expert is credible of whether his or
       her theories are correct given the circumstances of a particular case is a factual
       one that is left for the jury to determine after opposing counsel has been provided
       the opportunity to cross-examine the expert regarding his conclusions and the
       facts on which they are based. It is not the trial court's role to decide whether an
       expert's opinion is correct. The trial court is limited to determining whether
       expert testimony is pertinent to an issue in the case and whether the methodology
       underlying that testimony is sound.

Smith, 215 F.3d at 718-19 (citations omitted).

       A.      Dr. Flint's Analyses Are Relevant To The Issues In Dispute In This Case.

               Each aspect of Dr. Flint's report and testimony is directly relevant to both

understanding and determining the issues in this case. Dr. Flint's testimony will provide the

Court with essential information for understanding the economics of a pediatric medical practice

in Cook County, and how the reimbursement rates paid for services influence physicians'

decisions as to the patients they will choose to serve.


                                                 -13-
               Medicaid's "equal access" provision requires that states set their Medicaid

reimbursement rates in such a manner as to assure that payments "are sufficient to enlist enough

providers so that care and services are available under the plan at least to the extent that such

care and services are available to the general population in the geographic area." 42 U.S.C.

§ 1396a(a)(30)(A). Courts examining this provision have held that the level of reimbursement to

participating physicians in the context of the market and compared to the cost of providing

services is relevant factors in determining whether "equal access" exists. See, e.g., Clark v.

Kizer, 758 F. Supp. 572, 575-78 (E.D. Cal. 1990), aff'd in relevant part sub nom., Clark v. Coye,

967 F.2d 585 (1992); Methodist Hospitals, Inc. v. Sullivan, 91 F.3d 1026, 1029-30 (7th Cir.

1996) (mandating studies to determine impact of rates on access to care). The issues addressed

by Dr. Flint have been held directly relevant to cases like this one.

               With respect to the reimbursement rates paid by Illinois Medicaid for pediatric

medical services to the Children Class, Dr. Flint's testimony establishes (1) that Medicaid rates

are significantly lower than those paid by other payers, such as Medicare and private insurance,

and (2) that Medicaid rates are insufficient to even sustain the basic overhead practice costs for a

typical pediatric practice. The consensus of opinion in the field of health economics shows that

low reimbursement rates paid by Medicaid are by far the most important factor in a physician's

decision to limit or close his or her practice to Medicaid patients. These facts provide essential

information to the Court to explain why access to care for the Children Class is poor.

               Dr. Flint's analyses are also relevant to the Children Class' claim that the State has

failed to adequately provide early and periodic screening, diagnosis, and treatment ("EPSDT")

services to the Children Class. See 42 U.S.C. §§ 1396a(a)(10), 1396d(a)(4)(B). States must,

inter alia, "make available a variety of individual and group providers qualified and willing to

provide EPSDT services." 42 C.F.R. § 441.61(b). Dr. Flint's analysis shows that the State is not

                                                -14-
setting its reimbursement rates in such a manner as to assure that an adequate supply of EPSDT

providers will be available to the Children Class.

       B.      The State Officials' Attacks On The Relevance Of Flint's Work Are
               Unfounded.

               The focus of the State Officials' attacks on the relevance of Dr. Flint's analyses

appears to be that (1) Dr. Flint does not testify that inadequate access to medical care for

Medicaid recipients actually exists in Cook County, but rather only that inadequate access

"should be expected" to exist based on the reimbursement rates paid by Illinois Medicaid, and (2)

Dr. Flint does not go on to testify that reimbursement rates are the cause of inadequate access.

The State Officials misconstrue the nature and scope of Dr. Flint's testimony.

               The Children Class is providing the testimony of Dr. Flint to provide the Court

with a piece of its case – in short, the analytical and factual framework for assessing access to

care for the Children Class in Cook County. Dr. Flint, as noted above, will provide the Court

with an understanding of the reasons why access to care is inadequate, and a clear approach for

remedying this inadequacy. However, Dr. Flint is not being presented to prove the Children

Class' entire case. The Children Class will present testimony from physicians actively practicing

in Cook County, as well as Medicaid recipients who have sought care for their Medicaid-

enrolled children in Cook County, to establish that the Children Class does not have "equal

access" to care. The Children Class will also present testimony from another expert, Dr. Thomas

Darling, as to the number and distribution of providers actually providing care to the Children

Class. Dr. Flint provides the analytical background for understanding all of this evidence, even

if his testimony does not encompass the Children Class' entire case.

               Moreover, the Children Class is not required to establish one of the "ultimate

issues" in this case, the inequality of access to medical care, through the testimony of Dr. Flint



                                               -15-
alone. The Seventh Circuit has repeatedly observed that one piece of evidence need not establish

an entire claim to qualify as "relevant" under the Federal Rules of Evidence:

       [T]he question before us is not whether the reports proffered by the plaintiffs
       prove the entire case; it is whether they were prepared in a reliable and
       statistically sound way, such that they contained relevant evidence that a trier of
       fact would have been entitled to consider. No one piece of evidence has to prove
       every element of the plaintiffs' case; it need only make the existence of 'any fact
       that is of consequence' more or less probable.

Adams v. Ameritech Services, Inc., 231 F.3d 414, 425 (7th Cir. 2000); see also Smith, 215 F.3d

at 721 ("[I]n order for an expert's testimony to qualify as 'relevant' under Rule 702 it must assist

the jury in determining any fact at issue in the case. Although under Rule 704(a) an expert may

testify as to the ultimate issue in a case, the expert's testimony need not relate to the ultimate

issue in order to be relevant under Rule 702.").

               The State Officials' attacks on Dr. Flint all appear to stem from either a

misinterpretation or a failure to comprehend Dr. Flint's report or his testimony. As set forth

above, Dr. Flint's analyses are straightforward, reliable, and relevant to this case, and they are

proper under FRE 702 and Daubert. For these reasons, the State Officials' Motion in Limine to

Exclude Evidence from Samuel S. Flint, Ph.D. should be denied.


V.     CONCLUSION

               Dr. Flint's report sets forth in detail his analysis and conclusions that inadequate

access to care for children on Medicaid should be expected in Cook County based on the low

level of reimbursement paid by Illinois Medicaid. As Dr. Flint shows, (1) Illinois Medicaid rates

are significantly lower than those paid by other payers; (2) Illinois Medicaid rates are not

sufficient to sustain a pediatric practice economically; and (3) reimbursement rates are the

predominant factor in determining whether a physician will choose to serve Medicaid patients.

Dr. Flint's conclusion as to the level of access that should be expected in Cook County under


                                               -16-
these circumstances is reliably based on his analysis and his 30 years of expertise in studying the

issue of access to medical care for Medicaid-enrolled children.         It is also quite logical to

conclude that doctors will structure their practices to increase their income.

               Dr. Flint's report satisfies the standards of FRE 702 and Daubert. This Court

should deny the State Officials' Motion In Limine.

DATED:         March 5, 2004
                                                       Respectfully submitted,

                                                       MEMISOVSKI, et al.


                                              By:
                                                       One of Their Attorneys

John M. Bouman                                 Frederick H. Cohen
National Center for Poverty Law                David J. Chizewer
111 N. Wabash Street, Suite 500                Hillary Levitt Dunn
Chicago, IL 60602                              Matthew H. Metcalf
(312) 263-3830                                 GOLDBERG, KOHN, BELL, BLACK
                                                ROSENBLOOM & MORITZ, LTD.
Stephanie F. Altman                            55 East Monroe Street, Suite 3700
Thomas Yates                                   Chicago, Illinois 60603
Health & Disability Advocates                  (312) 201-4000
205 W. Monroe, 3rd Floor
Chicago, IL 60606
(312) 223-9600




                                                -17-

								
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