Full opinion text
FINDINGS OF FACT AND CONCLUSIONS OF LAW EAGAN, Chief Judge. Introduction Plaintiff Oklahoma Chapter of the American Academy of Pediatrics (“OKAAP”) is a non-profit professional organization of pediatricians and pediatric specialists. Plaintiff Community Action Project of Tulsa County, Inc. (“CAPTC”) is a non-profit organization located in Tulsa, Oklahoma. The individual named plaintiffs are thirteen children and their parents; they also serve as representatives of the class certified by the Court. Defendants are officials of the State of Oklahoma and Oklahoma Health Care Authority (“OHCA”), the designated agency responsible for implementing and administering Oklahoma’s program to provide eligible children with the health and medical services at issue in this case. Plaintiffs filed this action in March 2001, alleging essentially that defendants’ policies and procedures denied or deprived eligible children of the health and medical care to which those children are entitled by federal law. Plaintiffs seek injunctive relief to ensure that eligible children receive that care. After the Court ruled on motions to dismiss, plaintiffs filed an amended complaint in May 2002. The Court defined and certified the plaintiff class of children on May 30, 2003. The Court then held a non-jury trial for 19 days in April and May 2004. The parties made closing arguments and submitted proposed findings of fact and conclusions of law in July 2004. On October 5, 2004, plaintiffs filed a motion for supplemental relief and request for preliminary injunction. The motion essentially requested that the Court enjoin defendants from denying coverage for the anti-immunoglobulin E (“IgE”) drug Xo-lair (the trade name for omalizumab) to six class members suffering from elevated IgE-related symptoms and whose physicians determined Xolair to be medically necessary for them. The Court held a hearing on October 29 and November 1, 2004 to address this limited issue. The Court ordered additional medical evaluations and held an additional hearing on January 4, 2005. The parties submitted proposed findings of fact and conclusions of law regarding the Xolair issue on January 18, 2005. I. FINDINGS OF FACT A. THE OKLAHOMA MEDICAID PROGRAM FOR CHILDREN 1. History 1. The Medicaid program was created in 1965 by Title XIX of the Social Security Act. Title XIX established a joint, cooperative federal-state program for furnishing and financing health care and services to individuals who qualify for cash or welfare assistance. Tr. Vol. IX, at 1126: 5-10. Title XIX’s children’s health care provisions were first made express in 1967. Each state decides whether to participate in the Title XIX’s “Medical Assistance” program, and Oklahoma has chosen to participate. The Center for Medicare and Medicaid Services (“CMS”), formerly the Health Care Financing Agency (“HCFA”), in the United States Department of Health and Human Services, oversees the program for the Secretary. Defendant Oklahoma officials are responsible under Title XIX and by designation of State law, Okla. Stat. tit. 63, § 5005 et seq., for implementation of the program in accordance with the requirements imposed by Title XIX, its regulations, 42 C.F.R. § 440.40(b), 441-50 et seq., the terms of its waiver, and policy directions such as CMS’s State Medicaid Manual. The State Medicaid Manual produced by CMS includes advisory and optional policies and procedures as well as mandatory policies and procedures. Tr. Vol. II, at 259:13-24; Pl.Ex. 2, at BB.0033. The State Medicaid Manual is neither a federal statute nor a federal regulation. Tr. Vol. II, at 344:11-18. 2. Participating states are reimbursed by CMS — without any financial cap — for the largest portion of their medical assistance expenditures, in exchange for compliance with the requirements of Title XIX. Under Title XIX, children’s health care is mandatory upon each participating state and it includes “early and periodic screening, diagnostic, and treatment services” (sometimes referenced as “EPSDT”) for individuals under the age of 21. 42 U.S.C. § 1396d(a)(4)(B). Such services include comprehensive screening examinations, vision services, dental services, hearing services, and all other health care, diagnostic services, treatment, and other measures described by the statute as necessary to correct or ameliorate defects and physical and mental illnesses and conditions. See 42 U.S.C. § 1396d(r). Title XIX also requires “equal access,” meaning that each participating state must “assure that payments ... are sufficient to enlist enough providers so that care and services are available ... 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). 3. Prior to 1995, Oklahoma operated on a “fee-for-service” basis for its Medicaid recipients. SoonerCare Application, 12/94, Pl.Ex. 669, Intro., at 10. “Fee-for-service” means that when a provider sees a patient, and then files a claim with the state Medicaid agency for that service, the provider is paid a fee for that service. Tr. Vol. II, at 197:15-17; Tr. Vol. IX, at 1170:15-23. The agency responsible for administering Oklahoma’s Medicaid program prior to 1995 was the Department of Human Services (“DHS”). SoonerCare Application, 12/94, Pl.Ex. 669, Ch. 2, at 18. 4. In 1989, Congress expanded the numbers of low income children who are entitled to health care, particularly those in working families whose jobs pay only low wages and for large families who have near-median family income. From 1988 to 1992, the number of Oklahomans enrolled in Oklahoma’s Medicaid program increased from 245,000 to 360,000. OHCA Annual Report, Def. Ex. 35, at 19. Due to budgetary constraints, the State began exploring alternative ways in which to deliver Medicaid services. Id. Medicaid benefits and the population eligible for Medicaid were being reduced within the parameters allowed by federal law. Tr. Vol. XVII, at 2274:20 — 2275:15. 5. In 1993, OHCA was created by State statute, Okla. Stat. tit. 63, § 5004 et. seq., for the purpose of administering Oklahoma’s Medicaid program. Tr. Vol. IX, at 1122:16-17. Under the statute, OHCA was given broad powers, including the power to purchase health care benefits for Medicaid recipients. Okla. Stat. tit. 63, § 5006. The Legislature also vested OHCA with the responsibility of converting the Oklahoma Medicaid program into a “managed care system.” Id., § 5009. Managed care grew in response to health care costs increasing at a rate faster than inflation since the 1970s. Tr. Vol. II, at 232:24 — 233:5. On January 1, 1995, OHCA assumed total responsibility for administration of Oklahoma’s Medicaid program. SoonerCare Application, 12/94, PI. Ex. 669, Ch. 2 at 18. 6. On January 3, 1995, OHCA submitted an application to the federal government for development of a Medicaid managed care plan, SoonerCare. Pl.Ex. 669. The SoonerCare model required the grant of a waiver from certain Medicaid Act requirements. Id., Intro., at 8. If a waiver is granted, the State is not required to ensure the State Medicaid program is uniform statewide; the State can limit a beneficiary’s freedom to choose a provider; the State does not have to ensure that the amount, duration, and scope of services under the program is the same for all individuals; and the State is not required to make Medicaid coverage retroactive to ninety days before eligibility. Tr. Vol. X, at 1357:19 — 1358:23. However, EPSDT services for children, including physician services, are mandatory and cannot be waived. Id. at 1358:14-17; see also Tr. Vol. XI, at 1541:10-12. 7. As part of its application, OHCA set forth eight specific objectives for the Soon-erCare program. Pl.Ex. 669, Ch. I, at 14. The first objective for the SoonerCare program was to “improve access to preventive services, primary care, and early prenatal care for Oklahoma’s Title XIX population.” Id. In implementing SoonerCare, OHCA also sought a “greater degree of budget predictability” by moving from the fee-for-service model to a capitated model, “based on the concept of pre-payment.” Id. Under the “capitated” model, the primary care physician (“PCP”) receives a monthly payment for each patient regardless of whether the PCP sees each patient in the month for which payment is received. See Tr. Vol. Ill, at 456:5-15. 8. During 1995, HCFA approved OHCA’s waiver application, and Sooner-Care was launched. As designed, Sooner-Care included two major components, an urban model and a rural model. Pl.Ex. 669, Ch. I, at 15. Under the urban model, known as SoonerCare Plus, the State contracted with health maintenance organizations (“HMOs”) to enroll and serve recipients in exchange for monthly capitation payments. Id. SoonerCare Plus served beneficiaries residing in the Oklahoma City, Tulsa, and Lawton areas. OHCA Annual Report, Def. Ex. 35, at 26. Under SoonerCare Plus, beneficiaries selected a PCP. Id. The PCP was responsible for coordinating most of the beneficiary’s health care, including referrals to specialists. Id. Under the rural model, known as SoonerCare Choice, OHCA contracted directly with PCPs to deliver a defined set of primary care services and care coordination in exchange for a monthly capitation payment. Pl.Ex. 669, Ch. I, at 15. Thus, SoonerCare Plus was fully-eapitated, and SoonerCare Choice was partially-capitated. 9. In 1997, the Oklahoma Legislature passed a State law requiring Medicaid coverage of all children in families with a net income of 185% or less of the federal poverty level (“FPL”). Tr. Vol. IX, at 1134:22 — 1135:9. Also in 1997, Congress created the State Children’s Health Insurance Program (“S-CHIP”), Title XXI, to cover additional uninsured children with family income up to 200% of the FPL. 42 U.S.C. §§ 1397aa; 1397jj(e)(4). In providing S-CHIP coverage, states were permitted to expand their Medicaid program, to create a new program, or to use a combination approach. Pl.Ex. 657, at 2. 10. On May 26, 1998, OHCA received approval to expand its Medicaid program to accommodate the S-CHIP population. Id. State dollars spent on S-CHIP are matched by the federal government at an “enhanced” rate, “which is higher than the Medicaid rate.” Id. Oklahoma receives an 80% federal matching rate for State S-CHIP expenditures, versus a 70% match for the traditional Medicaid population. Tr. Vol. IX, at 1135:11-15. Oklahoma’s S-CHIP program expanded Medicaid eligibility .to include children, birth to seventeen years of age, from families with incomes at or under 185% of the FPL. PI. Ex. 657, at 2. OHCA originally estimated that 40,995 newly-eligible children would be enrolled under the S-CHIP Medicaid expansion. Id. at 2. As of July 12, 1999, OHCA had enrolled approximately 30,000 children through the S-CHIP Medicaid expansion. Id. at 3, 6. 11. Defendant Michael Fogarty has been CEO of OHCA since the year 2000, Tr. 3/14/03 at 202:5-9, and defendant Dr. Lynn Mitchell has been the Medicaid Director at OHCA since the year 2000, Tr. Vol. XIII, at 1690:18-23. As CEO, Fogarty has the duty to assure that Oklahoma’s Medicaid program is implemented and administered consistent with the requirements of federal law, including Title XIX. Agreed Pretrial Order and Statement of the Case, Dkt. 196, at 5. As Medicaid Director, defendant Mitchell is responsible for implementing Oklahoma’s Medicaid plan, contracting for services, monitoring the program, and ensuring compliance with federal law. Id. 12. In the fall of 2003, OHCA made a decision to dismantle the SoonerCare Plus Medicaid delivery system. Tr. Vol. X, at 1276:3-19. As of January 1, 2004, all of the SoonerCare Plus recipients were immediately transitioned to a fee-for-service program and were to be ultimately transitioned to the Choice delivery system by March 1, 2004. Id. at 1276:12-19. The SoonerCare Plus program was in existence for approximately eight years. Id. at 1272:11-16. As of June 30, 2003, there were 181,451 recipients enrolled in Sooner-Care Plus. Def. Ex. 35 at 26. Of those 181,451 enrollees, 145,358 were children. Id. at 19, Fig. 16. 13. When OHCA transitioned from folly-capitated SoonerCare Plus to partially-capitated SoonerCare Choice, 96% of the SoonerCare Plus physicians in the southwest region contracted with SoonerCare Choice; 75% in the Tulsa area contracted; and 80% of the Oklahoma City providers contracted. Tr. Vol. X, at 1348:24— 1349:12. Under the SoonerCare Plus system, the $200 capitation payment for each patient made twelve-month Medicaid eligibility more expensive than OHCA’s budget could bear without additional legislative appropriation. OHCA restimates that, under the fully-capitated system, it would have spent $2,000,000 a month on recipients who were no longer eligible for the program. By contrast, it expects the cost for recipients no longer eligible under the partially-capitated program to be about $200,000 per month. Tr. Vol. X, at 1265:21 — 1267:2. 2. Population Served 14. The Oklahoma Medicaid program covers children up to age 21 whose family income is 185% of the FPL or less. Tr. Vol. II, at 257:1-8. Approximately 355,000 of the 550,000 Oklahoma Medicaid recipients are children. Tr. Vol. IX, at 1127:5-8. Originally, the managed-care programs did not include Medicaid recipients who were beneficiaries of adoption subsidies, who were in State custody, or who were in an aged, blind, or disabled (“ABD”) group with special needs. These individuals were in the fee-for-service program. Eventually, the ABD population was included in managed care. Tr. Vol. II, at 353:11-25. 15. The State of Oklahoma has increased Medicaid ranks by changing the maximum family income allowed from 100% or 133% of the FPL, depending on other characteristics of the recipient, to 185% of the FPL across the board. Tr. Vol. II, at 354:1-13. With 1114 PCPs in the SoonerCare program, the Oklahoma Medicaid system has the capacity to provide health care for 1,048,713 individuals. The SoonerCare population is about one-third that size, at approximately 348,000 recipients. Tr. Vol. XIX, at 2514:20 — • 2515:3. Each individual physician’s patient capacity is determined by the physician. Tr. Vol. XIX, at 2515:4-9. 16. Based on the number of children previously enrolled in the SoonerCare Plus HMO program, approximately 40% of children on Medicaid reside in urban areas surrounding. Oklahoma City, Tulsa, and Lawton. Def. Ex. 35, at 19, 26. All Okla-homans are within forty-five miles of a PCP contracted with OHCA. Tr. Vol. XIX, at 2517:1-12; Def. Ex. 17. On average, there is one OHCA-contracted pediatrician PCP within fourteen miles of each Oklahoma Medicaid recipient and five OHCA-contracted pediatrician PCPs within thirty-five and one-half miles. On average, there is one OHCA-contracted non-pediatrician PCP within four and one-tenth miles of each Oklahoma Medicaid recipient and five OHCA-contracted non-pediatrician PCPs within ten and nine-tenths miles. Tr. Vol. XIX, at 2518:21 — 2519:20; Def. Ex. 17. 17. The United States is one of twenty-five countries with established market economies — so-called developed nations. Of all nations, the United States, at $5,440 per capita, spends more on health care per person than any other country. The rest of the market-economy nations spend about $2,400 per capita for health care. The United States, however, is near the bottom of the market economies in the health of its population, as measured by life expectancy, infant mortality, age-adjusted death rates, and other health standards. Tr. Vol. VI, at 680:20 — 681:9. 18. Among the fifty states, Oklahoma ranks third highest in per capita cost of health insurance premiums. Tr. Vol. VI, at 681:12-16. Despite these health insurance premiums, Oklahoma is the only state whose health status has worsened since 1990, as measured by life expectancy and age-adjusted death rates. Tr. Vol. VI, at 688:7-16. In other words, poor health is a problem in Oklahoma for both Medicaid and non-Medicaid recipients. Tr. Vol. II, at 233:17-23. The health status of Oklahoma’s poor children, in particular, has declined since 1990. Tr. Vol. VI, at 683:7 — 684:16. The number of children in Oklahoma without health insurance or Medicaid coverage is 40% higher than in the United States as a whole. In part, Oklahoma’s worsening health status is the result of the uninsured and uncovered population. Tr. Vol. VI, at 684:9-23. 19. The poor health status of Oklahoma’s children relative to other parts of the United States can also be attributed to Oklahoma’s large number of unmarried teenagers who become pregnant, lower immunization rate, high rates of smoking and other tobacco use, high incidence of obesity, high rate of illegal sales of liquor to minors, high level of teen deaths in motor vehicle accidents, high teenage suicide rate, high numbers of child abuse and neglect cases, as well as the State population’s general lack of exercise, television watching, low public-water-supply fluoridation, low use of automobile seat belts, and poor nutrition. Tr. Vol. VI, at 687:4— 690:22; 702:11 — 703:17. 20. Children in financially-needy families and in State custody have greater health care needs than other children. PI. Ex. 184, at BB .7361-62; Pl.Ex. 41, at BB.6721-23; see also Colleen A. Foley, Comment, The Doctor Will See You Now: Medicaid Managed Care and Indigent Children, 21 Seton Hall Legis. J. 93,107-108 (1997). Stress associated with low wages, substandard housing, violence, and inadequate nutrition also contributes to higher rates of physical and mental illness for poorer children. Sidney D. Watson, Commercialization of Medicaid, 45 St. Louis U.L.J. 53, 56-57 (2001). Low-income children are more likely than other children to suffer from low birth weight, lead poisoning, rheumatic fever, and asthma, as well as vision, dental, speech, and behavioral problems. Foley, supra, at 108. 3. Funding 21. OHCA’s state and federally-funded budget is set by the OMahoma Legislature at approximately $2,500,000,000 annually. Tr. Vol. IX, at 1128:7-14. Federal funds currently constitute about 70% of that amount and state funds constitute the remainder. Id. at 1130:7-12. The agency allocates the legislative appropriation by type of service, such as physician services and hospital services. Id. at 1130:19— 1131:6. 22. OHCA always receives a smaller legislative appropriation than it requests; however, deficit spending is not an option under Oklahoma law. Id. at 1131:14-22; 1132:15-18. OHCA has consistently requested funding from the Legislature to raise physician payment rates to 100% of the Medicare rate but the Legislature has consistently denied that request. Id. at 1181:23-25; Tr. Yol. X, at 1345:10 — 1346:3. OHCA may ask for a supplemental appropriation when the Oklahoma Legislature is in session and has done so often since its inception in 1995; however, the supplemental requests have not been fully funded by the Legislature. Tr. Yol. IX, at 1133:23 — 1134:13. 4. Rates 23. With the elimination of SoonerCare Plus, OHCA pays for a limited proportion of the medical services delivered to children served by Oklahoma’s Medicaid system on the basis of fee-for-service. However, all children who are assigned to the SoonerCare Choice program, even infants, are initially in the fee-for-service delivery system. 24. Generally, when medical services are delivered on the basis of fee-for-service, physicians bill on the basis of procedures described in terms of “Current Procedure Terminology” or “CPT codes.” See Tr. Vol. VI, at 663:25 — 664:4. CPT codes are published by the American Medical Association and mandated by federal law. There are two major categories of CPT codes:(l) evaluation and management (“E and M”) codes, and (2) procedure codes. E and M codes are best described as “office visit codes.” Tr. Vol. I, at 38:23-25. Procedure codes are the codes used by physicians to bill for all non-E and M services. Tr. Vol. XVI, at 2175:10-17. All surgical and diagnostic procedures, for example, are billed as “procedure” services. Tr. Vol. V, at 579:22 — 580:12; Tr. Vol. XI, at 1512:6-14. 25. From 1995 through December 31, 2003, provider reimbursement under Oklahoma’s Medicaid’s fee-for-service schedule never exceeded 72% of Medicare. Agreed Pretrial Order and Statement of the Case, Dkt. 196, at 7; see Tr. Vol. X, at 1214:23— 1215:23. Just months before the beginning of the trial of this matter, OHCA increased the fees for E & M codes to 90% of Medicare. Tr. Vol. XIX, at 2521:16-18; see Tr. Vol XV, at 1950:2-3. According to Deborah Ogles, financial management director of OHCA, currently, physicians are reimbursed under Oklahoma’s Medicaid fee-for-service fee schedule for “most codes,” referring to the procedure codes, at “about 71 per cent of Medicare.” Tr. Vol. XV, at 1949:24 — 1950:2. 26. OHCA sets its fee-for-service rates by determining its budget and setting a conversion factor on the basis of this sum. Id. at 1953:24 — 1954:8. “OHCA’s stated performance measure for compliance with the equal access mandate is to raise provider reimbursement rates under Medicaid to 100% of the Medicare Fee Schedule.” Agreed Pretrial Order and Statement of the Case, Dkt. 196, at 6. Yet, even 100% of Medicare is not considered an adequate rate to secure sub-specialists. See Tr. Yol. VI, at 665:2-5; Tr. Vol. VIII, at 1011:11-24 (“Medicare ... is not a very good fee schedule to begin with.”). 27. Under commercial plans, Oklahoma physicians are reimbursed at rates of 130% to 180% of Medicare. Tr. Vol. V, at 580:21-25; Tr. Vol. VII, at 942:21 — 943:4; Tr. Vol. VIII, at 1012:2-10. The average of the top five rates paid by private insurance companies to the university physicians is 140% of Medicare. Tr. Vol. XV, at 1971:13 — 1972:2. OHCA has received approval from CMS to raise rates to 140% of Medicare for the physicians who are employed by the State universities. This rate is sufficient to meet the current needs (but not any increased capacity) of medical practice at the University of Oklahoma (“OU”) Children’s Hospital. Tr. Vol. I, at 102:9-16. State university-employed physicians are located in Tulsa at the OU Medical School and the Oklahoma State University (“OSU”) Osteopathic College of Medicine, in Oklahoma City at the OU Health Sciences Center, and at various residency programs around the State, such as at Enid, Lawton, Duncan, and Bartles-ville. Tr. Vol. I, at 96:8 — 97:5; Tr. Vol. X, at 1235:18-23. 28. While most of the medical services provided by PCPs are included in a monthly capitated rate (discussed below), the medical services provided by non-pediatrician specialists and sub-specialists are paid for on a fee-for-service basis. Tr. Vol. X, at 1213:18-23. Accordingly, those specialists who primarily perform procedures such as surgery are paid approximately 72% of Medicare for most of their services. See Tr. Vol. XI, at 1512:2-14. 29. One physician service that is not set as a percentage of Medicare is the case rate paid to emergency room (“ER”) physicians. ER physicians receive $25 for seeing a child on Medicaid regardless of time expended or procedures performed. Tr. Vol. XVIII, at 2391:16-23. But, like the fee-for-service rates, the ER case rate was also set on the basis of the money available, and not on the basis of how those services are valued in the private market. Id. When OHCA increased the rate for the E and M codes to 90%, it did not increase the ER case rate. Id. at 2393:18-23. 30. SoonerCare Plus has been eliminated and, currently, all recipients who were in that program have been assigned to SoonerCare Choice and a PCP. The Soon-erCare Choice primary care case management (“PCCM”) model is now the primary Medicaid delivery system statewide. 31. Currently, all SoonerCare Choice PCPs are paid a monthly capitated rate for a fixed set of services. Def. Ex. 35 at 27; see Pl.Ex. 224' ¿t BB.7789. Most of the “office visit” E and M codes are absorbed into the Choice capitated rate. Tr. Vol. XX, at 2548:20-21. When OHCA increased E and M codes under the fee-for-service fee schedule to 90% of Medicare, there was no adjustment to the Sooner-Care Choice capitation rates. Agreed Pretrial Order and Statement of the Case, Dkt. 196, at 9, ¶ 24. 32. Defendants believe that managed care is not necessarily a disincentive to providing EPSDT services. Tr. Vol. XVI, at 2111:14 — -2112:2. However, capitated programs such as Oklahoma’s SoonerCare Choice can create “a financial incentive to underserve or deny beneficiaries access to needed care.” Pl.Ex. 14, “Medicaid: Stronger Efforts Needed to Ensure Children’s Access to Health Screening Services,” U.S. GAO Report to Congressional Requesters, GAO-Ol-749 Medicaid EPSDT Services, July 2001, at 8. This is a problem that defendant Fogarty acknowledged. Tr. Vol. X, at 1285:5-17. Dr. Ramadan, a pediatrician in Ada, Oklahoma, testified that he refuses to participate in the POP program because of its incentives to collect money without treating patients. Tr. Vol. IX, at 1104:6 — 1105:7. 5. Services 33. Title XIX mandates that EPSDT screening services are to be provided “at intervals which meet reasonable standards of medical and dental practice as determined by the State after consultation with recognized medical and dental organizations involved in child health care .42 U.S.C. § 1396d(r)(l)(A)(i). Pursuant to this requirement, each Medicaid agency must establish a screening “periodicity schedule” to be followed by participating providers. State Medicaid Manual, Pl.Ex. 2, at § 5140. Defendants are also required to establish periodicity schedules for dental, vision, and hearing services. Id.; 42 U.S.C. § 1396d(r)(2), (3) and (4). In addition, immunizations are to be given in accordance with the schedule established by the Advisory Committee on Immunization Practices for pediatric vaccines. 42 U.S.C. § 1396d(r)(l)(A)(i); State Medicaid Manual, Pl.Ex. 2, at § 5122(A). EPSDT’s medically necessary health care provision includes all medically necessary surgery, hospitalization, prescriptions, and behavioral health services. Tr. Vol. II, at 254:185 — 255:21. 34. “Services under EPSDT must be sufficient in amount, duration, or scope to reasonably achieve their purpose.” State Medicaid Manual, Pl.Ex. 2, at § 5110. Defendants acknowledge this prohibits “arbitrary limits” on the provision of services under EPSDT. Tr. Vol. II, at 266:13-15. The federal government has also instructed defendants to “[bjroaden the EPSDT provider base” to include physicians in the public and private sectors. State Medicaid Manual, Pl.Ex. 2, at § 5220; Tr. Vol. II, at 270:21 — 271:5. OHCA pays the State Health Department to do EPSDT screenings at schools. Tr. Vol. X, at 1306:2-21. 35. Federal law also requires that defendants inform all eligible individuals under 21 and their families about EPSDT. 42 U.S.C. § 1396a(a)(43). In states like Oklahoma, where recipients are served by continuing care PCPs, those PCPs must furnish notification to recipients that they are due to receive an EPSDT screening service. State Medicaid Manual, Pl.Ex. 2, at § 5310(D); Tr. Vol. XIII, at 1705:4-13. OHCA provides EPSDT education to providers and welfare agencies and EPSDT informational materials to county health departments, health care providers, DHS, the Women, Infants and Children program, SoonerStart and Children First programs in the State Health Department, Head Start, and school districts for dissemination to parents. Tr. Vol. II, at 294:21 — 295:8; 344:22 — 346:14; Tr. Vol. XIV, at 1794:23 — 1795:14. 36. In addition, OHCA provides parents with flyers and information booklets about EPSDT and sends them letters telling them when their children’s EPSDT screenings are due. Tr. Vol. II, at 261:2-8; 345:19 — 346:14; Tr. Vol. XIV, at 1794:3-20. OHCA also sends parents a postcard describing EPSDT and reminding them of the need for a screening, as well as a postcard informing recipients of the SoonerCare help line, nurse advice line, and SoonerRide telephone numbers. This is recognized as a good way to increase EPSDT participation. Def. Ex. 9; Tr. Vol. II, at 349:2-16. In addition to separate educational pieces, the EPSDT information is also provided in the Sooner-Care member handbook, which is printed in English, Spanish, and Vietnamese. Tr. Vol. XIV, at 1794:1-3. 37. OHCA’s EPSDT guide sent to parents explains what EPSDT is, the age when screenings should be done, what an EPSDT screen includes, how to schedule EPSDT appointments, and the availability of SoonerRide transportation. Def. Ex. 1; Tr. Vol. II, at 346:15 — 348:20. When parents cannot understand the correspondence and other written materials sent them by OHCA, they contact the EPSDT division by telephone and ask for clarification, .which is provided. Tr. Vol. II, at 368:20 — 869:17. 38. Outside of efforts by OHCA to educate and contact Medicaid recipients about EPSDT screening, health care providers also attempt to educate and contact such recipients, but the Medicaid recipients do not always appear for the screenings. Tr. Vol. I, at 113:16-21. OHCA notifies PCPs of children on them monthly roster of patients who have not received a recent EPSDT screening. See Tr. Vol. II, at 293:15-24; 338:2-7. 39. If parents do not access health care for their Medicaid recipient children through scheduled EPSDT screenings, OHCA contacts the parents to remind them of the need for examination. These communications occur more often than the annual contact recommended by CMS. See id. at 278:18-24. 40. OHCA works with the Oklahoma State Health Department, Department of Education, Department of Human Services, Office of Juvenile Affairs, and Department of Mental Health and Substance Abuse Services to provide services and outreach to Medicaid recipients. Tr. Vol. XIX, at 2529:9 — 2534:17. To increase historically low Medicaid participation, OHCA reduced the Medicaid application form from seventeen pages to one page, eliminated the financial assets test for individuals in the federal Temporary Aid to Needy Families (“TANF”) program, and . abolished the need for potential recipients to go to a DHS office to apply. These efforts caused a doubling in the Oklahoma Medicaid program. Tr. Vol. XVII, at 2276:14— 2278:8. 41. OHCA uses radio and television public service announcements, newspaper advertisements, natural gas bill inserts, McDonald’s restaurant tray liners, manned booths at state and community fairs, and flyers and posters in public office buildings, county welfare offices, doctors’ offices, and libraries to make Oklahomans aware of the Medicaid program. The agency also provides forms to schools so children or parents can notify OHCA of their interest in the Medicaid program. Tr. Vol. XX, at 2593:16 — 2594:16; 2598:1-13. ' OHCA’s written materials are produced at a sixth-grade reading level, according to the Fleisch-Kincaid Scale. Id. at 2594:23 — 2595:6. OHCA also operates an Internet web site with program information. Id. at 2596:21-2597:3; see Tr. Vol. I, at 143:14-20. 42. Some Medicaid recipients do not have telephones. Tr. Vol. I, at 94:17-18; 112:16-19. Medicaid recipients also tend to be more mobile and this makes it difficult to send mailings to them. Tr. Vol. I, at 112:7-15. Health care providers have complained that Medicaid recipients miss appointments, smell bad, behave badly, bring destructive children to the providers’ waiting rooms, and use emergency rooms unnecessarily. In response to that criticism, OHCA developed literature and had face-to-face meetings with Medicaid recipients explaining the importance of keeping appointments, personal hygiene, and appropriate use of emergency room, among other things. Tr. Vol. X, at 1335:18— 1336:18. 43. OHCA provides Medicaid recipients a member handbook, which explains resources available, how to use the program, how to set an appointment, and what to do if the recipients have a medical question. It also lists health care providers available, EPSDT screening information, and telephone numbers for the nurse advice line and the SoonerCare help line. Tr. Vol. XX, at 2595:7-24. This information is provided in English, Spanish, and Vietnamese and on audiotape. Id. at 2595:25 — 2596:19. CMS has recognized OHCA’s recipient manual as one of the “best practices” in the national Medicaid program. Tr. Vol. II, at 342:20 — 343:3. 44. Prior authorization is OHCA’s approval of a health service or item before a Medicaid recipient is entitled to receive that service or item. Compared with private insurance, few Medicaid services or items require prior authorization. Prior authorization is required for motorized wheelchairs and transplant services. Tr. Vol. XIX, at 2535:22 — 2536:13; 2536:23— 2537:7. B. OHCA’S ADMINISTRATION OF THE MEDICAID PROGRAM FOR CHILDREN 1. Provider Participation a. Pediatricians 45. According to a 2003 survey conducted by the AAP, only 34% of Oklahoma’s pediatricians participate fully in the Medicaid program by accepting all new Medicaid patients. Kletke Report, Pl.Ex. 203, at BB.10717. At the same time, 69% of Oklahoma’s pediatricians accept all new privately-insured patients. Id. In 2000, approximately 32% of Oklahoma’s pediatricians participated fully in Medicaid. Id. at BB.10718; Tr. Vol. XII, at 1605:21-24. At 32% participation, Oklahoma had the second lowest percentage of Medicaid pediatrician participation in the nation. Kletke Report, Pl.Ex. 203, at BB.10734, Fig. 1. 46. The 2003 data show that only 18% of Oklahoma’s office-based primary care pediatricians in private practice fully participate in Medicaid. Id. at BB.10746, Table B-l. For office-based non-primary care pediatricians in private practice, which includes sub-specialists, only 36.8% fully participate in the Medicaid program. Id There is a much higher participation rate (80.8%) for non-office based pediatricians, which includes pediatricians employed by hospitals and clinics, medical schools or universities, community health centers, and “other” patient care employment settings. Id. at BB.10715, n. 4. 47. Plaintiffs’ statistics expert, Dr. Phillip Kletke, refers to these non-office based pediatricians as “safety net” providers, as they are pediatricians who “devote much of their practice to those patients who are -not getting health care anywhere else.” Tr. Vol. XII, at 1610:17-24. The data in Oklahoma demonstrate that the safety net pediatricians are already at “full [patient] capacity or beyond.” Id. at 1614:1-4; see Tr. 3/14/03, at 152:11-19; Tr. Vol. I, at 29:19 — 30:10. On the other hand, the majority of Oklahoma pediatricians who limit their Medicaid participation have the practice capacity to accept additional patients. Kletke Report, Pl.Ex. 203 at BB.10717. 48. OHCA originally assigned all individuals in a family to the same PCP. When pediatricians complained that such assignment prevented them from receiving child patients whose parents were also on Medicaid, OHCA altered the assignment process and allowed children to be assigned to pediatrician panels. Tr. Vol. VII, at 919:13-22; Tr. Vol. X, at 1325:11 — 1326:12. Data reviewed by OFMQ “suggest that the practice of encouraging parents to choose [a] Pediatrician[ ] as their child’s PCP may result in more beneficial immunization outcomes.” Pl.Ex. 579 at 17. Indeed, some children have health needs that require the care of a pediatrician. See Tr. Vol. XIII, at 1741:16-23. However, many Medicaid children, including children who need the care and supervision of a pediatrician, do not have access to pediatricians. 49. The lack of pediatricians denies children needed diagnostic and treatment services. A pediatric cardiologist testified that he sees an “extraordinary number” of Medicaid children who find themselves in the hospital when their undiagnosed congenital heart disease becomes malignant. Tr. Vol. XI, at 1502:21 — 1503:20. Identifying congenital heart defects in children is difficult, but easier for pediatricians than family practice doctors or general practitioners. In addition, doctors are more likely to identify congenital heart disease in privately-insured children than in Medicaid children. Id. at 1503:21 — 1504:12. If children do not regularly see a pediatrician for primary care, other serious conditions, such as cerebral palsy, may also go undetected, thus foreclosing early intervention treatments. See Crocker Trial Dep., PI. Ex. A (attached to PI. Proposed Findings and Conclusions, Dkt. 233), at 22:17— 23:20. 50. Pediatricians needed for follow-up care are not readily available. Dr. Jackson testified that he has had great difficulty finding pediatricians who will provide care to his complex patients. Tr. Vol. XI, at 1505:4-9. Only 5%-10% of Dr. Jackson’s current Medicaid patients are seen by pediatricians for follow up. Id. Dr. Banner has great difficulty finding pediatric PCPs. to provide follow-up for his Medicaid patients in the Saint Francis PICU. Tr. Vol. IV, at 489:10 — 491:4. From a medical standpoint, Dr. Banner’s patients in. the PICU are often “very complicated,” and a pediatrician is more apt to provide care to such complex patients. Id. at 490:24 — 491:4. 51. The lack of pediatricians participating in the SoonerCare Choice program has actually caused Dr. Banner, a pediatric intensivist, to serve in a primary care role for some complex Medicaid patients “because they just can’t access it.” Id. at 494:10 — 495:4. In one particular case, a child with spina bifida, a congenital spinal cord disorder, lost her pediatrician PCP. Id. After the child was reassigned to a non-pediatrician PCP, she was readmitted to the PICU “multiple times.” Id. 52. Dr. Siegler, a pediatric neurologist, testified that he treats class members with complicated medical problems who are assigned to nurse practitioners or physician’s assistants as their PCPs. Tr. Vol. V, at 587:19 — 588:20. Dr. Siegler has some concern about sending a “really involved child,” such as a child with epilepsy, back to a nurse practitioner for primary care. Id. Children with such complex neurological conditions need a physician for follow up care, yet many children do not have access to a physician. Id. 53. Children living in rural Oklahoma counties often do not have access to pediatricians for primary care. In Ottawa County, for example, there is only one physician, a family practice doctor, who accepts Medicaid. Pl.Ex. 527 at 32. Currently, there are no pediatricians in Ottawa County, and the local hospital has not been able to successfully recruit a pediatrician for Ottawa County, in part because of the high percentage of Medicaid patients and low reimbursement rates. Tr. Yol. VII, at 932:1-22. A number of Medicaid patients in Ottawa County are assigned to the “Sunshine Clinic” as their PCP. Pl.Ex. 527 at 32; Tr. Vol. VII, at 924:19 — 925:1. Dr. Thomas Osborne testified that the Sunshine Clinic was created by the local hospital for the specific purpose of attempting to provide care for the children of Ottawa County, primarily Medicaid par-tients, who had “no other place to go .... ” Id. at 931:2-8. The Sunshine Clinic is staffed by a nurse practitioner and a physician’s assistant. Id. at 924:19 — 925:6. No physicians actually see patients at the Sunshine Clinic. Id. at 925:10-12. 54. The last pediatrician to practice in Ottawa County, Dr. Tom Tryon, now practices in Joplin, Missouri. Tr. Vol. VII, at 898:10 — 899:14. Dr. Tryon currently sees Medicaid patients from Ottawa County on occasion who appear at the hospital in Joplin. Id. at 915:23 — 916:8. One of these Medicaid patients, a child with severe asthma, was admitted to the hospital in respiratory distress. Id. at 916:9-20. If the child were on Dr. Tryon’s panel, he would be one of Dr. Tryon’s more complicated patients. Id. Upon discharge, this child’s follow-up treatment was provided at the Sunshine Clinic. Id. 55. None of the pediatricians in Ponto-toc County, Oklahoma is currently a Soon-erCare PCP for children on Medicaid. Tr. Vol. I, at 152:14 — 153:24. The mother of two named plaintiffs testified that she would like for her children to have a pediatrician as their PCP, but they have been assigned to a general practitioner. Id. b. Sub-Specialists 56.As noted above, HCFA conducted an audit in 1999 of Oklahoma’s SoonerCare program. The findings of that audit were published in a report entitled Medicaid Program Review of Oklahoma’s Sooner-Care Program. In its audit, HCFA found deficiencies regarding access to specialty care in the SoonerCare Choice program. Pl.Ex. 20 at BB.5272. Specifically, HCFA found the following problems with access to specialty care under SoonerCare Choice: PCPs are experiencing difficulty in locating speciality providers for their SoonerCare Choice patients.... [T]he proportion of Medicaid specialty providers that are willing to accept their patients has steadily dropped since the inception of the program .... [T]hey [PCPs] often spend considerable time and effort attempting to locate a specialist for their patients, frequently resorting to negotiation to secure the care their patients require. Patients in Ko-nawa and Wewoka must often be referred to providers in Oklahoma City rather than closer providers in Ada and Shawnee. Many PCPs pointed to this issue as a major source of frustration and a significant factor in their decision to continue to participate in the Sooner-Care Choice program. Id. HCFA also found that “OHCA was cognizant of the [access to specialty care] problems but had not yet established a method of monitoring this in a systematic manner.” Id. 57. OHCA responded to HCFA’s concerns about access to specialty care in the Choice program by admitting that “Soon-erCare Choice is aware of and had already identified the concerns outlined by HCFA regarding access to specialists for Sooner-Care Choice members.” Id. at BB.5273. OHCA represented to HCFA that it had addressed the access to specialty care problem by “reviewing access to specialty physician care on a case by case basis” and by creating “a Specialist Referral Directory for SoonerCare Choice providers.” Id. at BB.5273, BB.5274. Despite this representation, OHCA currently does not provide a list of specialists to its PCPs. Agreed Pretrial Order and Statement of the Case, Dkt. 196, at 9, ¶ 20. Indeed, defendants have no system that enables them to identify the sub-specialists who are participating in Medicaid. Id. at 8, ¶ 16. 58. However, OHCA provider representatives have attempted to recruit specialists throughout Oklahoma. Tr. Vol. II, at 273:20 — 274:9. In addition, OHCA provides referral assistance to PCPs seeking the care of specialists. Tr. Vol III, at 414:3 — 415:2. OHCA has employed additional exceptional needs coordinators whose function is to help PCPs find needed specialists. Tr. Vol. X, at 1331:8-22. At the time of trial, OHCA had 21 or 22 nurses who served as exceptional needs coordinators. The agency was in the process of hiring more to bring the number to 30. Id. at 1318:8-14. OHCA exceptional needs coordinators are helpful to PCPs attempting to make referrals to specialists and dentists for Medicaid patients. Tr. Vol. VIII, at 963:11-17; 977:12-19. 59. OHCA also created a “medical referral” to allow an exceptional needs coordinator to approve an immediate referral to a specialist without going through the normal approval process requiring communication from the patient’s PCP. Tr. Vol. X, at 1329:17 — 1330:3. In response to provider complaints about the process for referring patients to specialists, OHCA created a “standing referral” that allows a PCP to make a referral once rather than every time a patient needs an appointment with the specialist. Tr. Vol. X, at 1329:3-16. OHCA also created provider representatives to assist PCPs’ and specialists’ offices with the Medicaid program. At the time of trial, the agency.had eight provider representatives and two more were to be hired. Tr. Vol. X, at 1331:23 — 1332:16. 60. OHCA’s increase in payment rates for E and M codes to 90% of Medicare has helped PCPs obtain referrals to specialists for Medicaid patients. Tr. Vol. VIII, at 963:17-20. The higher rate for university-based physicians will also help OU recruit additional speciality physicians to Oklahoma. Tr. Vol. XVII, at 2216:11 — 2217:13. i. Pediatric Neurology 61. According to OHCA’s Care Management Director, there are six pediatric neurologists who practice in Oklahoma: two in Oklahoma City; three in Tulsa; and one in Durant. Tr. Vol. XIV, at 1862:3-18; see Tr. Vol. V, at 569:18-19. Only four see any Medicaid patients: two in Oklahoma City; one in Tulsa; and one in Durant. Tr. Vol. XIV, at 1862:3-6. The pediatric neurologist who sees Medicaid patients in Durant comes in from north Texas and practices at a part-time satellite clinic. Id. at 1863:19-25. In addition, OHCA contracts with a pediatric neurologist in Wichita, Kansas. Id. at 1849:4-20. It is difficult for all patients, Medicaid and non-Medicaid, to access pediatric neurologists. Tr. Vol. I, at 101:18-25 — 102:8; Tr. Vol. III, at 418:14-24. There is a shortage of pediatric neurologists nationally, but Oklahoma’s shortage in this field is more severe. Oklahoma is a crisis area for pediatric neurology. Tr. Vol. I, at 140:25— 141:1; Tr. Yol. V, at 592:24 — 593:2; Tr. Vol. XI, at 1449:28-25. 62. The one pediatric neurologist who sees some Medicaid patients in Tulsa, Dr. David Siegler, is not accepting any new Medicaid patients. Tr. Vol. XIV, at 1862:3-10; Tr. Vol. V, at 576:23-25. Until recently, Dr. Siegler practiced in a group with the two other pediatric neurologists in Tulsa. Tr. Vol. V, at 568:23 -569:7. The group limited its acceptance of Medicaid patients, as well as the time it set aside for Medicaid patient appointments. Id. at 569:25 — 573:6. Further, it implemented a “screening process” which required parents of Medicaid children to fill out an “involved” form describing the child’s condition, treatment and medications, and, even if completed, did not guarantee an expeditious appointment. Id. at 572:1-573:1. Over time, the group further limited the Medicaid patients to only those with “epilepsy and spasticity.” Id. at 573:9-22. 63. OHCA’s Care Management Director testified that over the past year, Medicaid children with seizure disorders have had to wait upwards of six months for an appointment with a pediatric neurologist. Tr. Vol. XIV, at 1868:10-18. Dr. John Stuemky’s Medicaid patients in Oklahoma City with seizure disorder must wait around a year to be seen by a pediatric neurologist. Tr. Vol. I, at 53:22 — 54:2. Some of these patients have poorly controlled seizures, and without the prompt care of a neurologist, the seizures will have a negative impact on school performance, development, behavior, and the “overall medical well-being” of these children. Id. at 54:7-16; Tr. Vol. IV, at 551:9-18. Other pediatricians testified as to the problems and difficulties they experience in securing timely appointments for their Medicaid patients, especially those with chronic and congenital conditions, who need the services of pediatric neurologists with offices relatively close to their homes. See Tr. Vol. IV, at 548:24 — 549:12; 550:23 — 551:8; 551:23 — 552:24; Tr. Vol. Ill, at 396:6 — 398:8; Tr. Vol. II, at 214:5— 218:13. 64. Several parents of class members testified as to serious problems their children have experienced in attempting to access pediatric neurological care. See Tr. Vol. VI, at 723:3 — 725:18; Tr. Vol. VI, at 773:11 — 778:20; Tr. Vol. IX, at 1095:22— 1099:2. One parent, in particular, testified that she had to drive her daughter four hours to see a pediatric neurologist, and her daughter experienced a severe seizure en route. Tr. Vol. IX, at 1097:9-1098:17. 65. Dr. Siegler testified that children on Medicaid do not have the same access to neurological services provided to children with private insurance because of low or nonexistent Medicaid reimbursement. Tr. Vol. V, at 597:2-25. The recent increase to 90% for E and M codes does not resolve the payment problems. Id. at 599:22 — 600:4. There is some work, e.g., coordination of care, for which Medicaid will not pay. Id. at 597:10-25. 66. OHCA claims that its exceptional needs coordinators have always been able to obtain appointments for pediatric neurology of Oklahoma Medicaid patients requesting assistance themselves or through their physicians, Tr. Vol. XIV, at 1850:11-19, but this evidence did not address timeliness or distance issues. ii. Otorhinolaryngology (“ORL”) / Ear, Nose and Throat (“ENT”) 67. There is an insufficient level of Medicaid participation on the part of ENT or ORL specialists. Office-based ENT specialists in Oklahoma will not see children on Medicaid. The wait for a Medicaid child to see an ENT specialist at the OU Medical Center is three months and an additional two to three months if surgery is needed. Tr. Vol. VI, at 665:23 — 666:4. The lack of Medicaid participation by private practice ENT specialists has created “almost a crisis situation” at the OU Medical Center in OHahoma City. Tr. Vol. I, at 52:16 — 58:1. Dr. Stuemky testified that children with private insurance have no problems accessing ENT services. Tr. 3/17/03 at 57:5-10 (“almost anytime, almost anywhere.”). 68. Dr. Joseph Leonard, an ENT specialist in Oklahoma City, notified OHCA CEO Fogarty in a December 2000 letter that his group would no longer be accepting Medicaid patients. Pl.Ex. 208; Tr. Vol. VI, at 662:14 — 663:5. In the letter, Dr. Leonard raised several serious concerns regarding problems with the billing process and low reimbursement rates. Dr. Leonard also set out in the letter his concerns about access to ENT services for Medicaid children if changes were not made. OHCA has made no attempt to convince Dr. Leonard to stay in the Medicaid program. Id. at 663:19-24. 69. Dr. Block characterized children on Medicaid as having “very little access” to ENT specialists in Tulsa, while he has no problem finding ENTs willing to take his privately-insured patients. Tr. Vol. XVIII, at 2323:15-25; Tr. 3/14/03, at 167:11— 168:22. The largest group of ENT physicians in Tulsa does not accept Medicaid patients. Tr. Vol. VII, at 950:3-5. This lack of ENT access is depleting the resources of some pediatric general surgeons in Tulsa, who, as of the time of trial, do not decline children on Medicaid. See Tr. Vol. VII, at 951:22 — 952:2. 70. Dr. Jane Thomason testified that she has had difficulty finding ENTs willing to take her Medicaid patients because the one ENT in Ponca City would not accept them, and only recently agreed to take “a select few.” Tr. Vol. Ill, at 388:8-24; 412:5-8. She previously had to refer all of her Medicaid patients in need of ENT services to Oklahoma City or Tulsa. Id. at 391:20-24. Further, the children had to wait from two to four months to be seen by an ENT specialist, even though the waiting period for a privately insured patient was around two weeks. Id. at 392:21 — 393:4. 71. Dr. Eve Switzer testified that the ENT specialists in Enid will not see Medicaid patients unless it is an emergency. She refers Medicaid patients who are not in emergency situations to ENTs in Still-water or Oklahoma City, and the wait is generally from several weeks to a month. Tr. Vol. IV, at 549:19-25. The lack of ENT availability has led her to attempt to manage Medicaid children’s uncontrolled ear infections with antibiotics, with the risk of creating “antibiotic resistant organisms.” Tr. Vol. IV, at 550:3-22. 72. Chrystal McQuerry lives in Ponca City, Oklahoma. She testified that her PCP in Enid referred her son, Mason M., to an ENT in Stillwater, and Mason saw that ENT approximately one month after the referral. The Stillwater ENT subsequently referred Mason to an ENT in OMahoma City, who saw Mason within two or three weeks. Tr. Vol. VI, at 720:13— 722:7 73. Delays in treatment of chronic ear infections can result in developmental delays in children. Dr. Thomason testified that a two-month delay in seeing an ENT specialist for a child with problems such as chronic ear infections or fluid in the ears can lead to delay in the development of language skills. Tr. Vol. Ill, at 393:5-23. Dr. Leonard also testified as to the types of medical problems that a three— to six-month delay in receiving ENT specialty services can cause. Tr. Yol. VI, at 665:21 — 667:6. According to Dr. Leonard, around 50% of children who do not receive needed ENT services during the first year of life end up in special education classes due to hearing loss and learning disabilities. Tr. Vol. VI, at 666:7-18. iii. Orthopedics 74. Oklahoma has only five or six pediatric orthopedists. Tr. Vol. VIII, at 1039:3-10. Pediatric orthopedists are in short supply nationwide. Tr. Vol. XI, at 1450:1-3. In Tulsa, Dr. Richard Ranne describes access to doctors who accept Medicaid as “extremely poor.” Tr. Vol. VII, at 949:21 — 950:2. There are no orthopedists on staff at St. Francis Hospital who will accept children with Medicaid. Id. Dr. Frederick Cohen, a Tulsa pediatrician, testified about a six-week ordeal his office encountered attempting, without success, to secure an orthopedic consult for a four-year-old girl with a fractured toe. Tr. Vol. XII, at 1579:3 — 1582:12. Calls to OHCA’s case manager failed to- identify any orthopedist in Tulsa available to provide services. Id. at 1581:10-18. 75. Dr. Mark Capehart, Tulsa’s only fellowship-trained pediatric orthopedic sub-specialist, no longer accepts Medicaid. Tr. Vol. VIII, at 1031:10-16 and 1035:12-16. The lack of access to a pediatric orthopedist denies children with complex orthopedic problems needed care. General orthopedists do not typically “feel comfortable” treating complex scoliosis, dislocated hips, or spina bifida. Id. at 1034:25— 1035:4. Failure to identify and treat an infant’s dislocated hip can result in pain, “shortening of the leg[,] a severe limp[,] and ultimately arthritis of the hip, requiring' a hip replacement.” Id. at 1033:25— 1034:10. Children born with club feet require weekly castings for their first three months or appropriate surgery. Id. at 1032:8-24. Thus, Medicaid children who live in Tulsa either do not receive orthopedic care or they must travel to Oklahoma City for treatment. 76. The lack of orthopedists accepting Medicaid' is overwhelming Children’s Hospital’s orthopedic program. Tr. 3/17/03, at 64:6-17. More and more children from rural areas are being seen for care of injured extremities and fractures because orthopedists in their community no longer accept Medicaid. Id., Tr. Vol. I, at 52:7-25. Medicaid patients in Ponca City and Muskogee also experience difficulty in obtaining orthopedic services. Tr. Vol. II, at 212:23 — 213:3; Tr. Vol. Ill, at 393:24— 394:17. In Ponca City, for non-surgical orthopedics or non-acute orthopedic surgery, the wait for Medicaid patients is a month or two. Tr. Vol. Ill, at 394:8-11. However, for the same services, a privately-insured child will be seen within a week or two. Id. iv. Child Psychiatry / Mental Health 77. The mental health care system in Oklahoma generally is poor. Tr. Vol. VII, at 888:13-15. Indeed, one witness described access to psychiatric services for adults and children in Oklahoma as a whole as “horrendous.” Tr. Vol. VI, at 694:2-8. Pediatric psychiatrists are in short supply nationwide. Tr. Vol. XI, at 1449:23 — 1450:5. Further, private insurance does not pay for psychiatric services in the same manner as other, health care services. Tr. Vol. VI, at 694:25 — 695:9, 78. OHCA has contracted with 319 mental health agencies in all counties of the State. Tr. Vol. XV, at 1977:23— 1978:5. OHCA Behavioral Health Division has always been able to locate mental health care for Medicaid recipients when asked to assist. Id. at 1979:13-24. OHCA also pays for medications used to treat depression in children. These medications can be prescribed by psychiatrists and PCPs. Tr. Vol. VII, at 880:24 — 881:21. 79. Despite OHCA’s efforts, the network of child psychiatrists in Oklahoma who are willing to treat Medicaid children is inadequate. In Tulsa, there are ten to twelve total child psychiatrists, but only six or seven are available to Medicaid patients for inpatient services. Tr. Vol. VII, at 849:12-23. There is only one child psychiatrist, Dr. Marcialee Ledbetter of the OU Pediatric Clinic, who accepts new Medicaid patients on an outpatient basis in Tulsa. Id. at 849:23-25. Dr. Ledbetter cannot meet the needs of all the children treated at the Clinic. Tr. Vol. XVIII, at 2328:23 — 2329:4. 80. Unless Dr. Block can refer his Medicaid patients to Dr. Ledbetter, “it’s almost an impossible feat to get a child psychiatric services.” Id., Tr. 3/14/03, at 174:25 — 175:9. With limited access to child psychiatrists, the pediatricians at the OU Clinic in Tulsa are asked to provide a level of psychiatric care that is “inappropriate.” Tr. Vol. XVIII, at 2330:10-17. Specifically, due to the lack of access to pediatric psychiatry, general pediatricians are asked to refill psychotropic prescriptions, monitor the medications, and take care of the child’s psychiatric needs, which they are not trained to do. Id.; Tr. 3/14/03, at 176:14-20. Although patients with private insurance wait to see a child psychiatrist, they will be seen within a.few months. Tr. Vol. VII, at 852:22 — 853:6. On the other hand, there are very few child psychiatry services for the majority of Medicaid children whom Dr. Ledbetter sees, some of whom have violent behavioral issues. Id. at 842:6 — 878:12. 81. In Oklahoma City, there is a six-month waiting list for Medicaid patients in need of pediatric psychiatry. Tr. Vol. I, at 58:1-4. Even after that six-month waiting period, these Medicaid patients are seen once by a child psychiatrist for an assessment and are then “farmed out in the community” to social workers and medication follow-up by a POP. Id. at 58:12-15; see Tr. 3/17/03, at 65:23 — 66:19. 82. Dr. William Featherston of Elk City, a pediatrician with over 40 years of professional experience in Oklahoma, has never been able to refer one of his Medicaid patients to a psychiatrist or psychologist. Tr. Vol. Ill, at 445:11-16. However, Dr. Featherston’s privately insured patients in need of mental health services are usually seen by a psychiatrist or psychologist within two or three weeks. Id. at lines 17-20. Some of these Medicaid patients were in serious need of psychiatric care, and going without such care caused “unbelievable” disruption to their families’ lives. Id. at 445:21 — 446:15. Defendants point out that Elk City has only one psychiatrist, and pediatric psychiatry patients from Elk City are referred to the OU Health Sciences Center regardless of whether they are on Medicaid or private insurance. Tr. Vol. Ill, at 453:11-12; 453:24 — 454:5. 83. Dr. Ledbetter testified that delivery of needed psychiatric care to children on Medicaid is hampered by the lack of other needed services. Needed medication regimens are denied. Tr. Vol. VII, at 857:7 — 859:23. The amount of psychological testing is limited to four hours. Id. at 868:25 — 869:11. Needed evaluations, such as neuropsychological testing, are unnecessarily delayed. Id. at 870:16 — 872:24 (child waited a full year for neuropsycho-logical testing). Plaintiff Jacob H. waited approximately two years to have a behavioral assessment. Tr. Yol. IX, at 1109:2-6. 84. Psychiatric “day treatment,” which enables children to receive intensive treatment over a prolonged period without an inpatient stay, is not available to Medicaid children in Tulsa. Tr. Vol. VII, at 872:25 — 873:13. There are two facilities in Tulsa which offer psychiatric “day treatment” to privately-insured children. Id. at 873:14-19. There are also times when Medicaid children in need of immediate inpatient care cannot find a facility anywhere in Oklahoma willing to admit them. Id. at 874:5-875:12. In these situations, Dr. Ledbetter is sometimes forced to “reluc