Full opinion text
MEMORANDUM OPINION JUSTICE, Senior District Judge. Table of Contents PART ONE: FINDINGS OF FACT REGARDING VIOLATIONS OF CONSENT DECREE Background and Procedural History Issue I: Outreach A. Overview B. Findings of Fact: Outreach 1. Knowledge and Understanding 2. Transportation 3. Receipt of Services after Oral Outreach 4. Low Participation Rates 5. Insufficient Staffing C. Violations of Decree: Outreach D. Providers’ Requests for Outreach: Findings of Fact Regarding Violations of Decree E. Outreach Reports: Findings of Fact Regarding Violations of Decree Issue II: Medical and Dental Checkups A. Overview B. Findings of Fact: Checkups 1. Medical Checkups 2. Dental Checkups a. Services b. Provider Recruitment 3. Teens 4. Abused and Neglected Class Members C.Violations of Decree: Checkups 1. Principles of Statutory Interpretation a. Structure and Context b. Legislative Intent 2. Waiver 3. The Cases Issue IV: Managed Care A. Defendants’ Managed Care Programs B. Findings of Fact: Receipt of Services by Class Members Enrolled in Managed Care 1. Overview 2. Inaccurate and Inttated Data 3. THQA Focus Studies 4. Comparing Managed Care and Fee-for-service Systems 5. Incomplete Checkups 6. Problems with the Medical Home and Primary Care Provider Models a. ThePCP b. Crowded Clinics and Emergency Rooms 7. Access to Specialists 8. Access to Pediatric Care and Mental Health Services 9. THQA Provider and Consumer Studies 10.Self-Reporting by Class Members a. B.M. and Samantha b. C.H. and Sons c. C.O. C. Violations of Decree: Receipt of Services by Class Members Enrolled in Managed Care D. Children of Migrant Farmworker Families 1. The Problem 2. Findings of Fact Regarding Violations of Decree E. Training of Health Care Providers in the Managed Care System: Findings of Fact Regarding Violations of Decree F. Data Collection in the Managed Care System: Findings of Fact Regarding Violations of Decree Issue V: Toll-Free Numbers A. Overview B. Findings of Fact: Prompt Answering of All Calls C. Violations of Decree: Prompt Answering of All Calls 1. Abandonment Rates 2. Waits in Queue 3. Unit of Measurement D. Knowledgeable, Helpful, and Polite: Findings of Fact Regarding Violations of Decree Issue VI: Case Management A. Role and Importance of Case Management B. Findings of Fact 1. The Need 2. Utilization 3. Sufficient Staffing 4. The Safety Net 5. Recruitment C. Violations of Decree Issue VII: Outcome Measures A. Overview B. Findings of Fact Regarding Violations of Decree 1. Joint Notice Measures 2. Unilateral Substitution of Measures 3. Corrective Action Plans 4. Timing Issue VIII: Training for Health Care Professionals A.Findings of Fact B» Violations of Dgcvcg PART TWO: DEFENDANTS’ OBJECTIONS TO ENFORCEMENT OF CONSENT DECREE Issue I: Enforcement of the Medicaid Statute A. Law of the Case B. Supreme Court Jurisprudence on Enforceable Rights C. The EPSDT Provisions of the Medicaid Act Issue II: Eleventh Amendment Objection A. Defendants’Objection B. Lelsz v. Kavanagh 1. Overview 2. The Holding: A Closer Look 3. The Nairowing of Lelsz 4. An Untenable Distinction? C. Application 1. Enforcement of Provisions Guaranteeing Services a. Outreach b. Services c. Managed Care 2. Enforcement of Provisions Requiring Reporting of Data and Information a. Reporting b. Outcome Measures and Corrective Action Plans 3. Enforcement of Training and Toll-Free Line Provisions CONCLUSION PART ONE: FINDINGS OF FACT REGARDING VIOLATIONS OF DECREE Background and Procedural History This civil action, filed on September 1, 1993, concerns the alleged failure of the State of Texas to implement a Medicaid program that assures that indigent children and youth receive timely, comprehensive health care. The case was brought by a class of more than one and .one-half million indigent children in Texas who are entitled to health benefits through the Early Periodic Screening, Diagnosis and Treatment program (“EPSDT”). See 42 U.S.C. §§ 1396a(a)(43); 1396d(r). In Texas, the program is referred to as the “Texas Health Steps” program, which is administered jointly by the federal government and the Texas Health and Human Services Commission. EPSDT is intended to be “the nation’s largest preventive health program for children.” H.R. 3299, 101st Cong. § 4213 (1989). It is “among the most important programs that the Texas Department of Health runs.” Order Concerning Fairness of Consent Decree at 8 (filed January 25, 1996)(hereinafter “Fairness Order ”)(internal quotes omitted). The purpose of the EPSDT program is to ensure that poor children receive comprehensive health care at an early age, so that they will develop fewer health problems as they grow older. EPSDT is designed to provide health education, preventive care, and effective follow-up care for conditions identified during check-ups. Preventive health care identifies health problems that may respond to early treatment but, if left untreated, may instead lead to serious health conditions. For example, a heart murmur detected during an EPSDT screening, if untreated, could lead to heart failure. Severe anemia, if untreated, could result in behavioral problems and reduced mental capacity. Other important components of the EPSDT program include immunizations, parental education, assistance with scheduling appointments and transportation assistance, and coordination of EPSDT and other programs serving Medicaid-eligible children. After two years of extensive negotiation following the filing of this case, the parties proposed a partial consent decree to this court in July of 1995. During a fairness hearing held in December of that year, the parties urged the court to approve the proposed decree. The court approved the decree as fair, reasonable, and adequate on February 16, 1996. Per the agreement of both parties, the decree expressly retains the court’s jurisdiction to rectify violations of its terms, and provides a mechanism to invoke this jurisdiction. Consent Decree, ¶ 303. The Plaintiffs’ Claims Currently pending before the court is plaintiffs’ motion to enforce multiple provisions of the consent decree with which defendants allegedly have not complied. Specifically, plaintiffs allege that defendants have failed to: 1) implement properly the outreach program and deliver required outreach reports; 2) assure that all class members receive medical and dental checkups; 3) develop and implement annual corrective action plans both for counties that lag behind the statewide average for checkups and for the state’s medical transportation system; 4) operate the state’s managed care system consistently with the mandates of the decree; 5) operate toll-free numbers so as to ensure that all calls are answered promptly by a knowledgeable and helpful staff member; 6) provide case management to all class members who need it, statewide; 7) develop methods to study each agreed health outcome measure; and 8) provide EPSDT training for health care providers. The Defendants’ Responses Defendants deny that plaintiffs are entitled to any relief sought, and maintain that they are in full compliance with the decree. In addition, they argue that in interpreting the consent decree to require certain specific actions by defendants, plaintiffs seek to modify the decree, and not merely to enforce it. In the alternative, defendants argue that a federal court’s jurisdiction over a state official is limited by the Eleventh Amendment to requiring compliance with federal law. Therefore, defendants argue that the decree itself may not be enforced against them to the extent that it goes beyond the scope of simple compliance with federal law. The Hearing and Memorandum Opinion A hearing was held from March 13— Marchl7, 2000, on plaintiffs’ motion to enforce the decree, and evidence was heard on each of the above-listed issues. Following the hearing, the court invited the parties to submit briefs on several of the legal issues involved in this case. Additionally, plaintiffs submitted proposed orders of enforcement, to which defendants responded. The following is a memorandum opinion that grants plaintiffs’ motion to enforce the decree in part. Part One of the opinion details the court’s findings of fact regarding defendants’ specific violations of the consent decree, as interpreted by the court. Part Two addresses defendants’ objections to the enforcement of various provisions of the decree. The court’s Order of Enforcement accompanies these findings of fact and conclusions of law as a separately issued order. I. Issue One: Outreach A. Overview The decree elaborates in detail the defendants’ obligations to conduct outreach efforts aimed at increasing participation and the receipt of needed services. For example, it requires defendants to inform all class members about checkups and other services, and to assist them in arranging for checkups and needed care. ¶¶ 10-74. These decree paragraphs stem from the federal requirement that a state plan for medical assistance that details the state’s obligations pursuant to their participation in the federal Medicaid program must “provide for” the “informing” of all eligible recipients of EPSDT services of the availability of those services. 42 U.S.C. § 1396a(a)(43)(A). The decree also requires defendants to provide outreach to “encourage EPSDT recipients to fully use services” and “assist recipients to overcome common barriers that prevent them from using EPSDT services.” ¶ 50. These barriers include the “lack of a health care provider,” “communication problems,” “transportation problems,” and “lack of knowledge” about the program. ¶ 51. As was explained to the court: [I]f poor parents understood the concept of prevention and understood the value of having their child seen early and on a regular basis and they understood the outcome they could expect, which is a child with no decay and pretty white teeth and a pretty smile, of course they would [seek services]. TR 252, line 23 to 253, line 14; see also TR 308, lines 13-15. (Testimony of Nancy Seale, D.D.S., M.S.D.). B. Findings of Fact: Outreach At issue is defendants’ compliance with decree provisions requiring that they maintain sufficient staffing and other resources to conduct outreach “effectively” (¶ 32) and that they “effectively inform” class members about EPSDT services to which they are entitled (¶¶ 11, 52). Abundant evidence that defendants have violated the decree’s outreach provisions was presented to the court. The evidence may be sorted into five categories: 1) evidence of class members’ lack of knowledge of defendants’ services, 2) evidence related to defendants’ transportation system, 3) evidence that plaintiffs do not often obtain services after having received outreach contacts, 4) evidence of plaintiffs’ low participation in defendants’ programs, and 5) evidence of defendants’ insufficient staffing of their outreach programs. Knowledge and Understanding Overwhelming evidence was presented — both statistical and anecdotal — demonstrating that large numbers of class members do not know about Texas Health Steps, or do not understand the breadth of services to which they are entitled. Numerous witnesses testified to the lack of understanding about defendants’ services among class members. For instance, one witness testified about parents who are “overwhelmed with [ ] confusion” about the program. TR 163, lines 8-13. (Testimony of Carolynn Singleton, M.P.H., R.N. ). She explained that class members view Medicaid as a program to use only if they become sick. She stated that class members are not aware of the preventive dental services to which they have access, and the transportation services they could use to gain access to such care. TR 162, lines 1-15. Another witness testified that most class members “do not seem to be familiar with all the services Medicaid provides,” noting that class members often do not know how many prescriptions they may receive, have not heard of the medical transportation program, and do not know about eyeglass coverage or dental coverage. TR 19, line 22 to 20, line 8. (Testimony of Jane McHan, M.S.W.). A third witness also testified that a common problem for class members is that they do not understand their benefits under Medicaid. TR 760, line 20. (Testimony of Carol Tillman). See also P.Ex. M-17. Echoing the testimony of these experts, a fourth witness explained that [t]he families are under-informed about the Medicaid program. They do not understand all the concepts about preventive care. Most of the families do not know what coverage their children have and do not have through Medicaid.... Most of them do not understand what a checkup is; they think this means any contact with a medical provider’s office. P.Ex. A-8 at 5 (Deposition of Deborah Skaggs ). Furthermore, it was demonstrated that class members do not understand preventive dental care or Medicaid dental benefits: [T]he families of the poor children work under the assumption [that] you go to the dentist when you have a toothache, and you go to the dentist when you have a problem, otherwise you don’t go. And I think they need to be taught.... [T]he ones who haven’t been taught don’t know what they can expect. They simply don’t know, and I think a large percent of [class members’] parents don’t know.... [0]ne of the single greatest reasons that they don’t seek [dental care] is they simply don’t know. TR 253, line 19 to 254, line 11. (Testimony of Dr. Seale). Furthermore, defendants’ August, 1998 Outreach and Marketing Report notes that class members “were consistently surprised to learn that Texas Health Steps offers dental and vision care, free transportation and eligibility until age 21.” P.Ex. O-l, at 2. This report also indicates that 60% of participating EPSDT clients knew “very little” (12%) or “nothing at all” (48%) about the program. Id. at 8. Potential clients knew even less: 70% of those eligible but not enrolled reported knowing very little or nothing at all about Texas Health Steps. Id. at 7. The study also revealed that parental confusion about which services they have or have not obtained for their children may operate as a barrier to plaintiffs’ receipt of care. For example, class members’ families often confuse EPSDT services with other services they may have received, such as services from the Women’s Infants’ and Children’s program (WIC). Id. at 8. Moreover, class members’ parents sometimes do not understand what a dental visit is or think their child has had a dental visit when in fact the child has not. TR 274, lines 23-25. (Testimony of Dr. Seale). Parents frequently believe that class members are up to date on checkups and immunizations, when in fact they are not. TR 165, line 10 to 166, line 25. (Testimony of Ms. Singleton). As Dr. Seale noted, when “a parent thinks a child has already had a visit, ... [but the child is actually overdue for a checkup] ... they may not follow through ... because they think the child has already had one.” TR 275, lines 10-18. Transportation The class members’ lack of knowledge of the free medical transportation system is perhaps the clearest example of a failed outreach program. Many of plaintiffs’ expert witnesses quoted in the above section testified to this lack of knowledge. The Texas Legislature’s Sunset Advisory Commission Health and Human Services Staff Report for 1998 states that “the lack of information about available client transportation services ... [is] ... a major barrier to accessing needed transportation.” P.Ex. — 3 at 115. Furthermore, according to a Texas A & M University study of defendants’ transportation program, “[o]n average, recipients who do not use MTP report fewer medical and dental appointments than MTP users.” P.Ex. T-43 at 54. However, despite the importance of the transportation program, it is severely underutilized. This underutili-zation, stems from the failure of the defendants’ outreach program to make class members aware that MTP exists: Recipients who did not use MTP simply did not know about the program or the services it provided.... [SJlightly more than a third of non-users reported any knowledge of MTP. Of those who had heard of the program, only a small fraction had actually heard of any of the specific MTP funded services. P.Ex. T-43 at 55. Receipt of Services after Oral Outreach The effectiveness of defendants’ outreach program may also be measured by the number of class members who opt to receive services after having been contacted by defendants. Because written information and contacts with eligibility workers are not, by themselves, likely to inform all class members about EPSDT services, the decree provides for the creation of “oral outreach units” designed to provide outreach services to those recipients who request additional information, those who miss check ups, and those whose health care provider requests outreach. ¶ 33. The evidence produced at the hearing suggests that defendants’ outreach efforts do not generate particularly high levels of participation among eligible EPSDT recipients. Approximately 25% of class members actually receive medical checkups after having received oral outreach services. P.Ex. 0-3; see also TR 943, lines 19-25. From the start of fiscal year 1999 through June of 1999, the percentage of newly-certified and re-certified class members who received checkups after receiving oral outreach services ranged from about 26% to 38%. The percentage of class members who were overdue for checkups and who received ehec-kups after oral outreach ranged from about 12% to 38%. P.Ex. 0-4. Low Participation Rates The low participation rates among class members, discussed in Section 11(B) of this opinion, also demonstrate that defendants’ outreach efforts are ineffective. The fact that participation rates have declined is stark evidence of the ineffectiveness of defendants’ outreach program. Insufficient Staffing Finally, the evidence demonstrates that defendants’ failure to conduct appropriate outreach, at least in part, may be attributed to inadequate outreach staffing. Although defendants’ outreach obligations to the large number of plaintiffs who had missed appointments should have increased steadily every year from fiscal year 1997 through 1999, there was no concomitant increase in defendants’ staffing. P.Ex. 0-5. In 1996, one outreach unit staff member served 3,500 class members. P.Ex. 0-8. C. Violations of Decree: Outreach The evidence weighing against a finding that defendants are in violation of the outreach provisions consists primarily of improvements made after the entry of the decree. The drop in the number of class members overdue for checkups, from 690,-868 in 1998 to 629,600 in 1999, could be interpreted as evidence of an effective outreach program. D.Ex. D-101. However, the large number of class members overdue for checkups is more appropriately viewed as evidence of an ineffective outreach program, especially considering that over one million class members did not receive any dental checkups in fiscal year 1998. P.Ex. D-3 at 5. The decline thus says very little, if anything, about the overall effectiveness of the outreach program. The evidence also reveals that the number of outreach contacts increased from 2.3 per class member in fiscal year 1997 to 2.5 per class member in fiscal year 1998, and that the number of outreach contacts has increased each year from fiscal year 1997 to 1999. D.Ex. D-100, D-102. However, roughly two-thirds of these reported contacts were written, not oral, contacts. Despite the effectiveness of home visits, defendants rarely conduct them. P.Ex. 0-3. Although the decree does not mandate that a certain proportion of defendants’ outreach contacts be home visits, it is found that defendants are not adequately availing themselves of the opportunity to use one of the most effective means of outreach. For example, defendants conducted only 53 home visits in the entire state for the month of March 1999. More importantly, given the strikingly large number of missed checkups — especially dental checkups — defendants’ reported increase in the number of contacts would be expected due to the requirement in paragraph 33 that those who miss checkups subsequently receive outreach. In sum, it is found that much of the evidence of improvement is severely undermined by the low levels of success that have characterized defendants’ outreach program. Furthermore, it is by no means clear that defendants’ progress is at issue, as the decree does not require progress in these areas. In enforcing the consent decree, the court is bound solely by its language. As the Supreme Court emphasized in United States v. Armour & Co., 402 U.S. 673, 682, 91 S.Ct. 1752, 29 L.Ed.2d 256 (1971), “the scope of a consent decree must be discerned within its four corners,” not by reference to what either party hoped to achieve by the decree, or to what they might have achieved through the litigation of their claims. Under the logic of Armour, as derived from the law of contracts, an interpretation of the decree must be based strictly on the language of the decree, and not on the legal requirements of the Medicaid Act, except to the extent that those requirements are clearly imported by the language of the decree. There are two major exceptions to the general rule in Armour. First, extrinsic evidence may be consulted in interpreting the language of a consent decree: Since a consent decree or order is to be construed for enforcement purposes basically as a contract, reliance upon certain aids to construction is proper, as with any other contract. Such aids include the circumstances surrounding the formation of the consent order, any technical meaning words used may have had to the parties, and any other doeu-ments expressly incorporated in the decree. Such reliance does not in any way depart from the “four corners” rule of Armour. United States v. ITT Continental Baking Co., 420 U.S. 223, 238, 95 S.Ct. 926, 43 L.Ed.2d 148 (1975) (footnote omitted). Relying upon general contract principles, courts have interpreted this to mean that “[e]xtrinsic evidence ... may generally be considered only if the terms of the judgment, or of documents incorporated in it, are ambiguous.” See, e.g., SEC v. Levine, 881 F.2d 1165, 1179 (2nd Cir.1989). A contract is ambiguous “when it is reasonably susceptible to more than one meaning, in light of surrounding circumstances and established rules of construction.” North Shore Laboratories Corp. v. Cohen, 721 F.2d 514, 519 (5th Cir.1983). Whether a contract is ambiguous is a question of law. Paragon Resources, Inc. v. National Fuel Gas Distribution Corp., 695 F.2d 991, 995 (5th Cir.1983). Once a court determines that a contract is ambiguous, it may look to extrinsic evidence to support its terms. Eaton v. Courtaulds of North America, Inc., 578 F.2d 87, 91 (5th Cir.1978). Although the determination of a contract’s ambiguity is a question of law, determination of the party’s intent through extrinsic evidence is a question of fact. Paragon Resources, 695 F.2d at 995. Second, if a statement of purpose is contained in the decree itself, as the product of arm’s-length negotiations, and that purpose may be discerned without reference to the extrinsic aims of the parties, Armour should not be read to prohibit consideration of that purpose. See Unit ed States v. Local 1804-1, 44 F.3d 1091, 1098 (2nd Cir.1995). In the instant case, the various introductory paragraphs interspersed throughout the decree form the relevant backdrop for its interpretation. For example, the overall purpose of the decree is recited in paragraph 6. Thus, the decree will be interpreted within its “four corners,” and its interpretation will be supplemented by extrinsic evidence where ambiguities so require. Consideration will also be given to the purposes incorporated into the decree itself. Therefore, attention must first be given to the language of the decree’s outreach provisions put in question by plaintiffs’ evidence: 11. The parties agree to and the Court orders the following changes to the Texas EPSDT program, policies and procedures to effectively inform recipients about the EPSDT program: 32. All outreach units will have sufficient staff and other reasonably necessary resources to handle their workload promptly and effectively. 52. Oral outreach efforts will effectively inform recipients about EPSDT, including the schedule for medical and dental checkups as well as the full range of covered services. Oral outreach will also effectively inform recipients about the benefits of preventive health care, that services are free of charge, how to locate a provider who is willing to provide services to EPSDT recipients, how to schedule appointments and how to schedule transportation assistance. The court must determine which of these provisions create binding obligations on the state that, based on the evidence presented, have not been met. Paragraph 11 highlights the fact that the parties bound themselves to the outreach provisions that follow. Paragraph 32 states that all outreach units “will have sufficient staff ... to handle their workload promptly and effectively.” This language is unequivocally mandatory and clearly binds defendants. The only question is, what level of staffing is “sufficient,” and what level of resources “reasonably necessary”? While these terms may at first seem vague and difficult to enforce, their meaning is clarified in part by the remainder of paragraph 32. “Sufficient” staffing and “reasonably necessary” resources are those inputs that will permit the “prompt” and “effective” handling of the workload. Paragraph 52, which states that oral outreach efforts will “effectively inform” recipients about EPSDT, echoes this emphasis on effectiveness. See also ¶ 11 (“effectively inform”); ¶ 30 (“Outreach units will work cooperatively with others who serve EPSDT recipients to serve recipients effectively and efficiently”). Thus, paragraphs 32 and 52 state explicitly what the State must do: it must hire enough staff members to permit the effective handling of the workload, and it must effectively inform class members about the program through oral outreach. What, then, amounts to “effective” informing or serving, or the “effective” handling of a workload? Under Armour and its importation of contract law into the interpretation of consent decrees, extrinsic evidence of the parties’ intent is to be considered by a court in giving meaning to ambiguous phrases. Defendants appear to suggest that the use of the phrase “effectively inform” in 42 C.F.R. § 441.56(a) should inform the court as to the parties’ intended meaning of the phrase in the decree. Specifically, defendants appear to argue that the phrase “designed to,” significantly limits their more general duty to “effectively inform.” However, defendants’ proposed interpretation of this phrase must be rejected as inconsistent with the parties’ use of “effective” in the decree. In particular, paragraph 52 does not include the phrase “designed to,” and instead states unequivocally that defendants’ outreach efforts “will effectively inform” (emphasis added). The omission of the phrase “designed to” suggests, if anything, that the parties intended to require the defendants to do more than merely plan or design to inform effectively. Therefore, defendants’ proposed extrinsic evidence is found to have little bearing on the meaning of “effective” as used in these paragraphs. The meaning of “effective” can be more clearly discerned by looking at the entire context of the decree, thereby locating and examining possible goals or criteria under which “informing” or the “handling” of a workload might be deemed “effective.” See Alliance to End Repression v. City of Chicago, 119 F.3d 472, 475 (7th Cir.1997)(noting that “four corners” inquiry requires a focus on the entire decree, not just a single provision). For example, under one reading of the decree, one might consider informing to be “effective” if it is simply well-communicated to those plaintiffs who are contacted. This reading would place defendants under an obligation, in the course of their outreach, to be “effective” in instilling understanding or knowledge among those contacted. See, e.g., ¶ 14 (“Information about EPSDT must be relevant to recipients’ needs. Information must also be reasonably interesting and presented in a manner that is sensitive to EPSDT recipients’ many different cultural backgrounds.... Finally, information must be presented in a manner that is convenient to recipients.”); ¶ 17 (“Defendants will use letters that are effective and appropriate. They will be printed in English and Spanish.”); ¶ 51 (“Common barriers may include!:] ... misunderstandings/lack of knowledge about Medicaid and/or EPSDT.”); ¶ 52 (“Oral outreach efforts will effectively inform recipients about EPSDT, including the schedule for medical and dental check ups as well as the full range of covered services. Oral outreach will also effectively inform recipients about the benefits of preventive health care, that services are free of charge, how to located a provider who is willing to provide services to EPSDT recipients, how to schedule appointments and how to schedule transportation assistance.”); ¶ 54 (“Oral outreach will use examples that are tailored to the recipient’s age and needs so that information is relevant and interesting to the recipient. When a household includes several recipients of different ages, outreach will provide age appropriate information about each recipient when possible.”); ¶ 56 (“Oral outreach will be provided in a manner that is sensitive to recipients’ ability to understand and process information. Appropriate language will be used. Sessions will be long enough to meet recipients’ needs for information but not so long that they are overwhelming or confusing. The length of sessions will necessarily vary from recipient to recipient.”) Alternatively, other decree provisions suggest that outreach that succeeds in reaching the maximum possible number of people could be termed “effective.” See, e.g., ¶ 20 (“Eligibility workers will now be required to discuss EPSDT with applicants who apply for benefits on behalf of an EPSDT eligible person.”); ¶25 (“But, information about EPSDT provided by TDHS eligibility workers will not be effective for all EPSDT recipients. Oral outreach units will provide outreach services when required.”); ¶ 31 (“Defendants will provide outreach services in all areas of the state.”); ¶ 49 (“Outreach units will keep current so that they can [] provide prompt outreach upon receipt of new Outreach Lists ... ”); ¶ 50 (“The purpose of oral outreach is to encourage EPSDT recipients to fully use EPSDT services; and [to] assist recipients to overcome common barriers that prevent them from using EPSDT services.”); ¶ 59 (“Over time, the groups of recipients who require oral outreach should change.... The groups of recipients who require oral outreach will increasingly be [ ] newly eligible recipients who have never received oral outreach ... ”); ¶ 73 (“Defendants will arrange for and implement a marketing plan that encourages providers and recipients to participate in the EPSDT program.”); see also ¶¶ 175-213 (regarding “special groups [that] require special attention so that they can receive the full benefits of the Texas EPSDT program.”); ¶ 264 (“The [case management] plan will make sufficient case management available in every county or cluster of counties where few recipients reside.”); ¶ 271 (“Medicaid services, including EPSDT services, must be available ‘in every political subdivision of the state.’ 42 U.S.C. § 1396a(a)(l).”); ¶273 (“The parties agree to implement a process to meet the statewideness requirement.”). Still another alternative would be to measure the effectiveness of outreach by its success in persuading listeners to gain access to services. See, e.g., ¶ 10 (“Information about the EPSDT program is important so that recipients can fully utilize EPSDT services, including medical and dental checkups.”); ¶ 14 (informing efforts must encourage “recipients to understand and use services fully”); ¶ 17 (written materials must be provided “to explain the EPSDT program and to encourage its use.... The reason to include age appropriate information is to provide information that is relevant and interesting to encourage the recipient to fully use EPSDT services.”); ¶ 50 (“The purpose of oral outreach is to encourage EPSDT recipients to fully use EPSDT services and assist recipients to overcome common barriers that prevent them from using EPSDT services.”); ¶ 64 (defendants may conduct other outreach efforts to “encourage recipients to use EPSDT services”); ¶ 66 (other agencies can help class members to use services); ¶ 73 (media marketing plan must “encourage ... recipients to participate in the EPSDT program”); see also ¶ 178 (“The purpose of outreach to recipients who are children of migrant farmworkers will be to help them to receive as many needed EPSDT services as possible.... ”); ¶ 183 (“Outreach information will encourage [migrant farmworker] recipients to receive as many needed services as possible .... ”); ¶ 193 (managed care companies must “cooperate with outreach units so that recipients who miss medical and/or dental checkups receive prompt services”); ¶ 265 (defendants must “encourage the acceptance of case management by recipients.”) Thus, whether “informing” has been done “effectively,” or an outreach workload handled “effectively,” wholly depends on the goals one hopes to effect. All three of the above-listed outreach goals — facilitating clear knowledge or understanding, reaching the maximum number of eligible class members, and persuading or encouraging class members to obtain care — are present to a large extent in the decree, and were at the heart of the parties’ agreement. These are the purposes that appear repeatedly within the “four corners” of the nearly one hundred pages of the decree. The testimony of several witnesses supports this view of what constitutes “effective” outreach. While these witnesses’ individual definitions of “effective” cannot be used as evidence of the parties’ intended meaning of the term, they do paint a picture of a commonsense understanding of what it means to conduct outreach effectively that bolsters the court’s above analysis and parsing of the decree. For example, one witness testified that defendants’ outreach efforts are not effective, based on “the numbers of clients that we see in our program that still have very little, if any knowledge about Medicaid services and how to access them.” TR 25, lines 17-24 (Testimony of Ms. McHan) (emphasis added). Another witness agreed, noting that while “[t]he efforts have been put into place,” that she did not “see that they have been effective,” since a “large number of [class members] still don’t understand ... the need for repeated [ ] visits.” TR 174, lines 18-24; 235, lines 10-19 (Testimony of Ms. Singleton)(emphasis added). A third witness testified that the defendants’ outreach program is not accomplishing everything that it’s intended to.... [I]f it were accomplishing what it was intended to do, it would be educating the parents about the value of early checkups, about the value of keeping appointments on a regular basis and getting care for their children when there was not a problem. TR 329, lines 8-25 (Testimony of Dr. Sea-le)(emphasis added). Again, while these comments are not evidence in themselves of what the parties meant by “effective,” the witnesses’ collective emphasis on the numbers of class members with little knowledge, on the superficiality of their understanding, and on the failure of outreach to result in a significant number of requests for treatment lends further support to the court’s assessment of the meaning of the term “effective.” With these background provisions in mind, the precise meaning of “effective” need not be determined. Whether the parties intended it to mean that outreach effectuate the goals of understanding, of reaching maximum numbers of eligibles, or of persuading them to use services, the evidence clearly demonstrates defendants’ ineffectiveness in all three senses of the word. First, if the defendants’ duty to effectively inform and serve were interpreted to require defendants to effectuate understanding in the minds of those class members subjected to outreach, defendants’ August, 1998, “Outreach and Marketing Report” clearly demonstrates their widespread failure to bring about understanding of the program, or even awareness of its existence, among the plaintiff class. P.Ex. 0-1, see also Section 11(B)(1). If, instead, “effectiveness” is measured by defendant’s success in reaching large numbers of the plaintiff class entitled to various forms of outreach, the Outreach and Marketing Report, P.Ex. 0-1, is similarly damning. That report clearly demonstrates that defendants have been ineffective in contacting large numbers of class members entitled to oral outreach in an overall effort to inform the population of the program’s existence. Specifically, 60% of respondents reported knowing only “very little” or “nothing at all” about the program. Were the term “effective” read to require some measure of success in encouraging or facilitating recipient participation, defendants’ failure would be most dramatic. As noted above, only about 25% of class members who are informed of the program by defendants actually receive medical checkups after having received outreach. These figures are a far cry from “effective informing” if the goal to be “effected” is the actual receipt of care. So, too, are the startlingly low participation rates among class members in key health components in Texas Health Steps, related in Section 11(B) of this memorandum opinion. In conclusion, plaintiffs’ evidence aptly demonstrates that defendants have failed to maintain sufficient staff and other reasonably necessary resources to handle their workload promptly and “effectively,” and to “effectively” inform recipients about Texas Health Steps. Therefore, it is found that defendants are in violation of paragraphs 32 and 52 of the decree. D. Providers’ Requests for Outreach: Findings of Fact Regarding Violations of Decree Plaintiffs’ concerns about defendants’ outreach program include a complaint that defendants have not provided adequate outreach for the recipients whose health care providers request outreach, as mandated by paragraphs 33 and 96 of the decree. They note that under paragraphs 32 and 52, discussed at length above, this outreach must be “effective.” However, plaintiffs rely solely on the experience of Ms. Singleton, who requested outreach assistance on behalf of five patients. Defendants responded by sending letters, and then closed the cases. TR 172, line 23 to 173, line 24. While the court finds Ms. Singleton to be a credible witness, her lone account of her experience involving the defendants’ arguably inadequate outreach does not establish by a preponderance that defendants have failed to effectively inform this particular subcategory of class members entitled to oral outreach under paragraph 33. Plaintiffs also rely on the fact that in August of 1999, defendants’ outreach units answered only 243 providers’ requests for outreach. P.Ex. 0-3. In certain regions of the state, defendants responded to no requests at all during that time. Id. However, the court has not been provided with any benchmark for the number of provider requests to which defendants should have responded. The evidence also revealed that provider requests decreased from well over 2,000 per month during 1998 and 1999 to under 700 in December of 1999. Defendants proffer this decline as evidence that their outreach to providers has had educative effects, while plaintiffs argue that providers are unaware of their ability to request aid and information. D.Ex. 94. Based on the above evidence, it is found that plaintiffs have not met their burden with respect to this particular group, and did not, therefore, establish a violation above and beyond the violation detailed above, in Section 1(C). It is noted that this finding does not in any way affect the above finding that defendants are in violation of paragraphs 32 and 52 with respect to the larger group entitled to oral outreach under paragraph 33. E. Outreach Reports: Findings of Fact Regarding Violations of Decree Finally, plaintiffs seek to enforce the outreach reporting requirements at paragraphs 60 and 61 of the decree. Specifically, plaintiffs complain that defendants fail to report separately on outreach efforts made to distinct groups of class members. The court is unaware of any decree provision requiring defendants to deliver the data required under paragraph 60 in a format that distinguishes among subgroups in the plaintiff class. Therefore plaintiffs’ invitation to impose the structure of paragraph 33 onto paragraph 60, which sets forth clear and unambiguous reporting requirements, will be declined. Plaintiffs also maintain that they are entitled to reports about the receipt of checkups after oral outreach that separate medical from dental checkups. Paragraph 61 does not, on its face, require defendants to distinguish those class members who receive dental checkups from those who receive medical checkups following outreach, although this would appear to make sense in light of both parties’ desire to monitor effectively the outreach program and target specific areas for improvement. Despite the sound logic behind plaintiffs’ request, under Armour, the court cannot go beyond the language of the decree. Hence, defendants will not be held to have violated paragraph 61. Issue II: Medical and Dental Checkups A. Overview Plaintiffs claim, next, that defendants have not complied with paragraphs 2, 35, 37, and 143 of the consent decree, which outline plaintiffs’ entitlements to medical and dental checkups under 42 U.S.C. §§ 1396a(a)(43). These paragraphs provide that class members “are entitled to both medical and dental checkups on a regular schedule,” ¶ 2, and “to all needed follow up health care services that are permitted by federal Medicaid law.” ¶ 3. Paragraph 143 states that “[djefendants must provide periodic dental checkups and needed dental services to relieve pain, restore teeth and maintain dental health for EPSDT recipients.... ” Paragraph 35 describes the schedule for medical checkups as required by the decree; the schedule for dental checkups is governed by paragraph 37. Defendants are required by federal law to set these schedules. 42 U.S.C. §§ 1396d(r). Paragraphs 35 and 37 incorporate by reference these “periodicity schedules” created by the state and impose an additional obligation upon defendants to provide oral outreach to recipients who miss a medical or dental checkup “due” or required under such a periodicity schedule. Based on these paragraphs, plaintiffs claim that defendants have failed to provide plaintiffs with needed medical and dental checkups. Plaintiffs claim, additionally, that defendants have failed to provide plaintiffs with adequate reports on the checkups performed on all class members. The evidence relating to whether defendants have violated these decree provisions is presented below. First, findings of fact relating to the provision of medical checkups are recited. Second, findings of fact relating to the provision of dental services, including those concerning defendants’ recruitment of dental providers, are made. Third, defendants’ provision of medical and dental checkups to teens is reviewed. Fourth, defendants’ provision of checkups to abused and neglected class members is examined. These sections report the court’s findings of fact. Section 11(C) sets out defendants’ violations of the decree in relation to all of these matters. Section 11(D) deals with defendants’ reporting of data relating to the provision of checkups to class members. Findings of Fact: Checkups Medical Checkups B. The evidence at the hearing clearly demonstrated defendants’ noncompliance with decree provisions requiring the provision of medical checkups to the plaintiff class. As evidence that class members are not receiving checkups, plaintiffs. first point to the defendants’ reported medical checkup “participation ratio” for fiscal year 1998, which was .66. D.Ex. D-97. The participation ratio is a “ratio derived by looking at the number of [class members] who have received at least one [checkup] over the expected number of [class members] that should receive a [checkup] during that year.” TR 446, lines 6-11. (Testimony of Rick Allgeyer, Ph.D.). The number of class members who should have received a checkup during the year is adjusted to account for the average period of Medicaid eligibility (about .7 years, or slightly more than eight months) during the year and for the schedule for medical checkups. TR 450, line 18 to 451, line 22. Defendants report this figure annually to the Health Care Finance Administration (HCFA), the federal agency responsible for oversight of the Medicaid program, in a “HCFA 416” report detailing participation in the program. P.Ex. M-39. Not surprisingly, defendants maintain that actual participation by the plaintiff class in the dental and medical checkup program is higher than the reported statistic. D.Ex. D-96. Plaintiffs maintain that actual participation is lower than reported. More specifically, plaintiffs contend that the participation ratio, computed by defendants in accordance with instructions from HCFA, represents an inflated measure of the actual receipt of services because it is adjusted for the average length of time that class members receive Medicaid during the reporting period. After reviewing the evidence presented, the court is in agreement with plaintiffs that the reported participation ratios are inflated indicators of the actual participation rates among the plaintiff class. In addition, plaintiffs note that defendants report a shortage of health care providers enrolled in the Texas Health Steps Program. Specifically, in sixty-five of Texas’ 254 counties, class members’ need for doctors “dramatically exceeds provider to client ratios,” while in nineteen additional counties, defendants report “limited provider support for the existing client population.” P.Ex. D-13. Dental Checkups Services Abundant evidence was presented that clearly demonstrated that class members do not receive adequate dental care. They crowd emergency rooms in hospitals, suffering from acute forms of dental disease that, while easily preventable, often lead to such health complications as serious oral infections, dehydration, fever, and malnourishment stemming from the inability to eat. In 1998, only 19% of class members received at least one dental checkup. P.Ex. D-3 at 5. This figure declined from 21% in 1997, and rose again to 21% in 1999. P.Ex. D-14. Even fewer class members receive all of the checkups required by defendants’ dental periodicity schedule, which entitles class members over age one to a dental checkup every six months. ¶ 37. Although the average period of Medicaid eligibility for class members was slightly more than eight months in 1998, only 3.7% of class members received the required two dental checkups in 1999. P.Ex. D-14. Particularly disturbing is the statistic reported in defendants’ 1998 “State-Wideness Report” that roughly one million Texas Health Steps eligibles had received no dental services for that year. P.Ex. D-3. Furthermore, the number of class members overdue for dental checkups has steadily increased every year between fiscal years 1997 and 1999. P.Ex. 0-5. In 1998, 38% of the class received some form of dental treatment. P.Ex. D-3 at 5. However, the fact that 38% of Texas Health Steps eligibles received at least one dental “service,” as opposed to a checkup, is consistent with the program enrollees’ tendency to seek dental services only in emergencies. TR 263, line 23 to TR 265, line 7 (Testimony of Dr. Seale). Viewed in conjunction with the insufficient number of children receiving full checkups, the “services” statistic indicates that while class members may be receiving some form of “dental service,” they are most likely receiving such services in emergency settings, and are not receiving the preventive services to which they are specifically entitled under the EPSDT program. Id. Defendants emphasize that in 1998, approximately 20% of children enrolled nationally in EPSDT utilized dental services, as compared with 32% of enrolled children who utilized the dental services provided in Texas, a figure which steadily increased during the years 1996 through 1998. D.Ex. D-81. Defendants cite the fact that Texas Health Steps has produced better results than the national average as evidence that defendants have complied with the decree by exceeding any minimum goals contemplated by the parties when they entered into it. However, because Texas provides dental services beginning at age one, whereas many other states begin providing dental services at age three, Texas’ higher utilization rates may simply reflect a larger number of eligibles instead of a higher participation rate among eligibles relative to other states. TR 271, lines 1-11; TR 313, line 18 (Testimony of Dr. Seale). Provider Recruitment Both parties presented statistics relating to the availability of dentists accepting Texas Health Steps enrollees. Defendants emphasized that while the ratio of dentists to the general population in the state of Texas in 1999 was roughly 1: 2,600, the ratio of participating dentists to the Medicaid population was 1: 584. D.Ex. D-104. However, plaintiffs introduced evidence that of the Medicaid providers identified by defendants, only one-third were “high volume” providers, or providers likely to be able to accept a new enrollee in need of a checkup. TR 268, line 21-25 (Testimony of Dr. Seale); P.Ex. D-12. Defendants’ Director of Oral Health, Jerry Felkner, D.D.A., M.P.H., agreed with this assessment, noting that an enrolled dentist “could see one [class member] a year and still be classified as an active dentist.” TR 809, lines 16-25. In addition, multiple witnesses testified concerning the severe shortage of dentists in various regions of the state. For example, the director of a case management program for children with special health care needs in a large area surrounding Abiliene, Texas, testified that many families are having difficulty finding a dentist who will accept Medicaid. TR at 20, lines 7-9. (Testimony of Ms. McHan), A witness from the Texas Migrant Council in Lubbock related that “[a] lot of towns [in the Panhandle] don’t have Medicaid providers, either medical or dental. A lot of the time, we ... have to bus these young children an hour to the dentist.” P.Ex. A-4 at 12-13 (Deposition of Nancy Lloyd). The shortage of dentists in the Arlington-Dallas area was also detailed, including the fact that “the dentists are so limited - that the referrals that we make need to be for kids that got [sic] abscesses and rotten teeth ... those are the ones that generally get in.” TR 205, lines 4-18 (Testimony of Ms. Singleton). This shortage of dentists who are willing to see class members is statewide. TR 24, lines 10-12 (Testimony of Ms. Singleton). Defendants themselves agreed in October of 1999 that there were at that time 136 counties in which “the needs of a client population ... dramatically exceeded] provider to client ratios.” P.Ex. D-13. Statewide, although about 2,900 dentists are enrolled, only roughly 1,700 actively serve class members. TR 825, lines 4-19. If all class members over the age of one year were to receive the dental care to which they are entitled, it would be necessary that these active dentists each care for 876 class members. This load is not currently being borne by the active dentists. TR 826, line 23 to 827, line 6 (Testimony of Dr. Felkner). Worse, the number of dentists enrolled in the program is currently decreasing in Texas due to low reimbursement rates and frustration with the defendants’ failure to change those rates. TR 330, lines 11-21. (Testimony of Dr. Seale). Low reimbursement rates for dental services from the state makes the recruitment of additional dentists extremely challenging. TR 824, lines 5-12 TR 823, line 24 to 824, line 4 (Testimony of Dr. Felkner); P.Ex. D-12. Even though defendants admit a severe shortage of dentists exists in 136 counties, defendants propose to recruit only seventy-five additional Texas Health Steps providers (doctors and dentists) during the year 2000. TR 833, line 24 to 834, line 2 (Testimony of Dr. Felkner); P.Ex. D-13 at 1. Teens Defendants’ failure to provide checkups has a particularly severe impact on teenage class members, for whom the 1998 participation ratio for medical checkups or special adolescent visits was .64. D.Ex. D-9 (11- to 18-year-olds.) Again, such ratios are inflationary because they rest on the assumption that class members receive checkups randomly throughout the year, and do not, therefore, account for the reality that many class members need checkups immediately upon enrollment because they are “overdue.” Specifically, in fiscal year 1999, only 24% of six- to fourteen-year-old class members received a checkup or adolescent preventive checkup, while only 12.4% of those aged fifteen to twenty years received such a checkup. P.Ex. CH-26. Additionally, because of the expected growth in the number of fifteen- to eighteen-year-old enrollees resulting from the implementation of the new State Children’s Health Insurance Program (SCHIP), defendants’ failure to provide services to the teenage population is a particularly grave aspect of defendant’s extensive failure to serve the class. P.Ex. CH-26. Abused and Neglected Class Members Substantial evidence was introduced that demonstrated defendants’ failure to address the needs of the roughly 13,200 abused and neglected class members supervised by the Texas Department of Protective and Regulatory Services. The receipt of checkups by this particular population is governed not only by paragraphs 2, 3, 35, and 37, but also by paragraph 212. This paragraph required the parties to submit a Memorandum of Understanding to the Court which would, among other things, “assure that all EPSDT recipients under the supervision of TDPRS receive all medical and dental checkups when due.” ¶ 212. The defendants’ reports on various subgroups within the larger class of abused and neglected children reveal that this at-risk group does not receive all medical and dental checkups when due. P.Ex. R-ll, R-14. C. Violations of Decree: Checkups With the above evidence in mind, the court now considers plaintiffs’ claims that defendants have violated specific decree provisions. Plaintiffs’ primary argument appears to be that, since participation rates in the dental and medical checkup programs are extremely low, defendants have failed to provide the services to which plaintiffs are entitled, and have therefore violated the decree. As noted above, in enforcing the consent decree, the court is bound solely by its language. With this in mind, the court turns to the decree. The paragraphs sought to be enforced by plaintiffs in relation to medical and dental checkups are: 2. EPSDT is intended to provide comprehensive, timely and cost effective health services to indigent children and teenagers who qualify for Medicaid benefits. Checkups are the cornerstone of the program. They assess recipients’ health, provide preventive care and counseling (anticipatory guidance) and make referrals for other needed diagnosis and treatment. 42 U.S.C. §§ 1396a(a)(43); 1396d(r). Recipients are entitled to both medical and dental checkups on a regular schedule. About 48% of recipients received at least one medical checkup in fiscal year 1994 (FY94), according to reports Defendants filed with the United States Department of Health and Human Services. 3. Recipients are also entitled to all needed follow up health care services that are permitted by federal Medicaid law. 42 U.S.C. § 1396d(r). 35. Beginning on September 1, 1995, outreach units will provide oral outreach to all recipients who miss a medical checkup that is due on or after July 1, 1995. “Due” means a medical checkup that is due according to the current Texas EPSDT periodicity schedule, i.e., newborn, 1-2 weeks, 2 months, 4 months, 6 months, 9 months, 12 months, 15 months, 18 months, 24 months, 3 years, 4 years, 5 years, 6 years, 8 years, 10 years, and annually thereafter through and including 20 years of age. 37. Beginning no later than June, 1997, outreach units will provide oral outreach to all recipients who miss a dental checkup that is due on or after April 1, 1997. “Due” means a dental checkup that is due according to the Texas EPSDT periodicity schedule, i.e., starting at 1 year and continuing every 6 months. 143. Defendants must provide periodic dental checkups and needed dental services to relieve pain, restore teeth and maintain dental health for EPSDT recipients. 42 U.S.C. § 1396d(r)(3).... 212. TDH and TDPRS will present a Memorandum of Understanding [that] will ... assure that all EPSDT recipients under the supervision of TDPRS receive all medical and dental checkups when due. What obligations do these six paragraphs impose upon defendants? First, it is noted as a preliminary matter that paragraphs 35 and 37 are unavailing for the plaintiffs. While these paragraphs do make reference to the state’s schedules for medical and dental checkups, they do so solely for the purpose of establishing when the outreach duties are to be triggered, and do not support plaintiffs’ claims for timely medical and dental checkups. Next, paragraph 2 emphasizes the importance of checkups to the overall success of the EPSDT program. The only obligatory language in this paragraph, however, appears in its fourth sentence, where it is stated that “Recipients are entitled to both medical and dental checkups on a regular schedule.” Similarly, paragraph 3 states that “recipients are also entitled to all needed follow up health care services that are permitted by federal Medicaid law. 42 U.S.C. § 1396d(r).” The argument between the parties stems from a dispute over the meaning of the word “entitled” as used in these sentences. Defendants’ understanding is that class members are “entitled” to services, but that they must first ask for them. Under this common-sense understanding of the term, argue defendants, plaintiffs must have requested services and have been denied them for defendants to be out of compliance with paragraphs 2 and 3. Plaintiffs presented no evidence of having requested and having been denied services, nor did they argue that the participation data is evidence that some requested services were actually refused by defendants. Under this understanding of the word “entitled,” then, plaintiffs have not met their burden in showing a violation by defendants. Defendants maintain that this “request defense” is strongly buttressed by the language of the EPSDT statute itself, which requires that state Medicaid plans provide for the delivery of services “in all cases where they are requested.” 42 U.S.C. § 1396a(a)(43)(B). It is noted that the requirements of federal law would be irrelevant to this court’s construal of the decree under Armour but for the fact that the parties elected to incorporate by reference these statutes in the many paragraphs that detail defendants’ obligations to plaintiffs, including paragraphs 2 and 3. Therefore, federal law must inform the court’s interpretation of these provisions. Principles of Statutory Interpretation 42 U.S.C. § 1396a(a) provides, in pertinent part: A State plan for medical assistance must— (43) provide for - (A)informing all persons in the State who are under the ag