Alexander Statement on TennCare Announcement to Take On Long-Standing Court Ruling Preventing Enrollee Eligibility Check:

Posted on January 15, 2008

“As a former governor I can understand the frustration Governor Bredesen and state officials are experiencing while trying to manage TennCare with their hands tied by the courts. That is why I introduced legislation to give states more flexibility in these situations and put decisions back in the hands of elected officials, who can be held accountable by the voters.” In November, Alexander (R-Tenn.) and Sen. Mark Pryor (D-Ark.) introduced legislation to slow down “democracy by court decree” – the tendency of some federal courts to make decisions that should be left to elected state and local officials. The Federal Consent Decree Fairness Act would provide relief to newly-elected state and local officials who inherit overbroad or outdated consent decrees that limit their ability to govern and respond to the priorities and concerns of their constituents. The bill would make it easier for state and local governments to modify or terminate federal court consent decrees to which they are a party. These consent decrees can last for decades, locking-in policies long after the officials who agreed to them have left office. TennCare announced today that it will ask the federal court to lift a 1987 injunction that currently operates to prevent about 154,000 TennCare recipients from undergoing the annual eligibility check mandatory for all other TennCare enrollees. According to TennCare officials, the injunction has resulted in the State Comptroller repeatedly citing TennCare for allowing potentially ineligible enrollees to remain on the program. # # # Visit our web site at Alexander-Pryor: Federal Consent Decree Fairness Act Slowing Down “Democracy by Court Decree” The problem: • Civil lawsuits filed against public schools, transit systems, and other state/local government agencies often result in consent decrees – judicial orders resulting from agreements brokered between plaintiffs and the public officials being sued. These decrees are binding, legal agreements specifying how a particular problem will be remedied. • Consent decrees can remain in place for decades, locking-in policies that were agreed to by officials who are no longer in office. • Newly-elected officials often inherit overbroad or outdated consent decrees that limit their ability to govern and respond to the priorities and concerns of their constituents. Existing procedures discourage current state and local governments from trying to modify or terminate those decrees. The solution: the Federal Consent Decree Fairness Act • Makes it easier for state and local governments to modify or terminate federal court consent decrees. • Applies to federal court consent decrees to which a state or local government is a party. Does not affect decrees involving school desegregation or arising from lawsuits filed by the federal government. • Provides a three-pronged approach: o Creates “term limits” for consent decrees. After 4 years or after the state/local official who provided consent leaves office (whichever comes sooner), a state or local government could ask a federal court to modify or vacate the decree. o Shifts the burden of proof. After a motion to modify or vacate a consent decree has been filed, the burden would shift to the plaintiff who filed the original lawsuit to demonstrate why continuation of the consent decree in its existing form is necessary to protect a federal right. o Provides guidance for future consent decrees. The bill sets out a series of findings to guide federal courts, based on a 2004 decision by the U.S. Supreme Court suggesting that consent decrees should be narrowly drafted, limited in duration, and respectful of state/local policy interests and concerns. • Lead Senate sponsors: Alexander (R-TN), Pryor (D-AR), Kyl (R-AZ), Nelson (D-NE), and Cornyn (R-TX). • Companion bill in the House sponsored by Republican Whip Roy Blunt (R-MO) and Congressman Jim Cooper (D-TN). Why now? • Overbroad or outdated consent decrees are a national problem: o In Tennessee, hundreds of thousands of residents are having their health insurance limited or cut altogether because a series of consent decrees prevented the state from implementing Medicaid reforms – approved by the governor and the legislature – that could have preserved their coverage. o In Los Angeles, consent decrees have forced the Los Angeles County Metropolitan Transit Authority to spend 47 percent of its budget on buses – leaving just over half the budget to pay for the county’s remaining transportation needs. o In New York City, special education has been governed by a consent decree since 1979, thwarting efforts by successive mayors and schools chancellors to implement new reforms and updated policies for compliance with the Individuals with Disabilities Education Act (IDEA). • In 2004, the U.S. Supreme Court expressed its concern that consent decrees may “improperly deprive future officials of their designated legislative and executive powers.” Such circumstances may lead to “federal court oversight of state programs for long periods of time even absent an ongoing violation of federal law.” Frew v. Hawkins, 124 S. Ct. 899 (2004).