Senator Eliot Shapleigh - El Paso, Texas

In 1993, 1.5 million Texas children living in poverty qualified for Medicaid, but half were not getting the care federal laws supposedly guarantee.

A whopping 941,072 had not had an annual medical checkup, nor had 1 million gotten their teeth checked.

Attorney Susan Zinn got interested after hearing horror stories too numerous to recount — of acute maladies going untreated, and of things like wheelchairs and heart transplants being refused.

But “the most common problems we encountered were these horrible toothaches,” Zinn told me in 2000.

Dental problems can lead to other ailments, and, just as bad, they can keep children from thriving because they can't eat or concentrate in school.

Many dentists were turning children away because of Texas' miserly reimbursement rates. But many parents also didn't know Medicaid covers such things as dental care.

With co-counsel Jane Swanson, Zinn sued Texas Medicaid officials for not complying with a wide array of federal laws.

Three years later, state officials caved in and signed a consent decree promising some very specific fixes. But 20 months later, the lawyers asked U.S. District Judge William Wayne Justice to order Texas officials to live up to the 1996 promises, as they had again vowed to do.

Justice issued the order, but Texas appealed to the Fifth Circuit Court of Appeals, which sided with the Texas officials. Zinn and Swanson then went to the U.S. Supreme Court, which unanimously overturned the Fifth Circuit reversal.

But Texas officials continued to resist until the case ended up, again, before the Supreme Court, which rebuffed the state again and sent the case back to the district court.

In 2007, Justice approved a mutually agreed-upon “corrective action plan” to, again, bring Texas Medicaid officials into compliance with their promises.

State officials and the lawyers reached accord on a detailed plan to provide adequate care to Medicaid-eligible kids, now one-third of all Texas children.

Among other things, state officials promised not to deny children adequate care, and to raise caregivers' reimbursement rates. Another trip to the courts was averted, but only because a key element of the plan addressed a major hurdle keeping eligible children from getting care: Their parents aren't aware of their eligibility.

“... $150 million will be applied toward strategic initiatives to improve class members' access to services,” the 2007 order states in its list of corrective measures for 2008 and '09.

And in two footnotes it specifies, “This order does not address what reimbursement rates will be needed for future years after 2008-09 (and) all amounts referenced ... are of general revenues.”

By then, lawmakers had appropriated the $150 million.

But in their July 2008 report to the court, state officials revealed that they plan to spend only “$138 million overfour years ... 2008 through 2011.”

Zinn is again dismayed by their recalcitrance, and by the misery that it has been bringing to poor children since 1996.

“The $150 million for strategic initiatives were very important (in) the negotiations,” a frustrated Zinn says. “If that hadn't been there, we would have walked away and been in court last year to ask the judge to require the defendants to come into compliance with the 1996 consent agreement.”

And last week, she learned that Texas plans to spend only $46.3 million of the $150 million appropriated in 2008 and '09.

The rest, Zinn says, “is just gathering dust” while sick kids do without care. She claims to be hopeful the new Legislature will act quickly to change things. But if lawmakers don't get state officials in line, she says they shouldn't be surprised if she and Swanson return to court to compel Texas officials to live up to their word.

Given their tenacity, lawmakers had best pay attention.