The Common Good
May 2005

Battling Goliath in Tennessee

by Ted Parks | May 2005

The Tennessee Justice Center advocates for the ill - and squares off against the state's health cuts.

No plush leather chairs or pricey paintings here.

No plush leather chairs or pricey paintings here. Instead, the clients in this law office - among them the most ill among Tennessee’s poor - walk over nondescript commercial-grade carpet before sitting down to wait in run-of-the-mill furniture. On one wall large letters read, "What a difference the LAW makes," while another wall displays a collection of downloaded images of suffragettes, Depression-era poor, protesters, and others in need of a fair shake in life.

The modest facilities of the Tennessee Justice Center would still be an apt metaphor for an obscure firm of crusading lawyers were it not for one problem: The agency has become the state government’s biggest headache. Tennessee’s novel attempt to go beyond the mandates of Medicaid - TennCare - is busting the budget, and TJC has played a key role in representing TennCare recipients in controversies with the state.

In January’s announcement of the governor’s proposals for slashing TennCare, managed-care-tycoon-turned-Democratic-governor Phil Bredesen addressed himself directly to the people the state would regretfully "disenroll," with more than 323,000 adult Tennesseans likely to lose coverage. "We don’t remotely have the money to continue on the current path," the governor said. "The lawyers who have purported to represent you over the years are living in a fairyland."

But TJC executive director Gordon Bonnyman Jr. believes the cuts will kill. With proposals limiting the number of prescriptions patients can receive, some of Tennessee’s most ill will go without urgently needed medicines, Bonnyman fears. The TJC director says it is not unusual for TennCare recipients to have five or more chronic illnesses requiring multiple medications.

"It’s a pretty stark moral kind of dilemma that we’re facing," Bonnyman says, adding that, amid the complexity of the problem, government leaders must keep in mind "certain matters of principle." Number one on the list, he says, should be, "Don’t kill people."

TennCare began in 1994 when Tennessee received a "waiver" from Washington to create its own version of Medicaid. The state hoped that by improving the way it managed care, Tennessee could extend coverage to additional Tennesseans. At the program’s beginning, managed-care organizations, or MCOs, were paid a specified dollar figure for each individual patient. The MCOs, rather than the government, bore the financial risk.

With the promise of more effective and inclusive health care, TennCare was a "Cadillac program that everybody envied," says University of Memphis law professor and legal-services attorney Christina Zawisza, who was working in Florida at the time.

BUT THE CADDY ran out of gas. With some of the MCOs responsible for administering TennCare funds now belly-up, the state took back the risk, changing from a per-person payment to a system of reimbursing doctor fees. Expenditures have spiraled; with a cumulative program cost of more than $8 billion - of which Tennessee’s share is more than $2.5 billion - lawmakers complain that the health plan threatens other social spending, including education. Officials say they shell out 33.3 percent of state expenditures on the program, ranking Tennessee number one in the nation for the portion of state budget consumed on heath care.

Admitting the grave problems, TJC recommends more effective reviews of how providers prescribe medications and more careful management of care for the most ill patients, the most costly to treat. But TJC believes leaders must look for ways to mend the program that don’t hurt people.

Walter Mewborn, an ALS patient who lives near Memphis, is one example of the personal costs of the governor’s cuts. ALS, or Lou Gehrig’s disease, is a degenerative condition leading to paralysis. The 65-year-old former engineer’s muscle movement is now restricted to part of his face, explains his wife, Brenda Mewborn. During 12 years of her husband’s illness, Mewborn says, she cared for him herself. Then, exhausted and ailing from the intensive care her husband required, she herself was diagnosed with cancer.

Mewborn got in touch with TennCare to see if the state program could provide private duty nursing, a benefit denied by Medicare, which helps her husband with doctor and hospital costs. TennCare came through with around-the-clock nursing as well as pharmacy costs, which Mewborn put at an average of $16,000 a year.

TennCare "has absolutely been a godsend," Mewborn says. But with private duty nursing among the cuts the governor has proposed, Mewborn will be left to again take care of her gravely ill husband herself, something she says her current health and age will not allow.

And while if she becomes incapacitated Medicare will pay for her husband to be hospitalized, Mewborn says she wants her husband to have the continued opportunity to live at home, surrounded by people who love him. "If it costs my life...to keep him home, oh, I’d gladly do that," Mewborn says, fearing that, with her husband’s special needs, hospitalization would only hasten his death.

COMMENTING ON TJC’S rise to the limelight as TennCare advocates, Bonnyman says, "We’ve definitely moved from obscurity to notoriety." But the recent showdown is only the best-known chapter in a 10-year story of fighting for the rights of Tennessee’s disenfranchised.

TJC’s mission and outreach differ from federally funded legal-aid organizations, whose attorneys "do individual cases, one person at a time," explains Ashley Wiltshire, executive director of the Legal Aid Society of Middle Tennessee and the Cumberlands and longtime friend of Bonnyman. TJC can deal with broader issues, Wiltshire says. With legal services focusing on individual cases of domestic violence and issues with health, housing, and consumer rights, TJC is able to move from the personal to the policy level. While "we start from the client," says Bonnyman, "we try to blend the micro with the macro."

Oddly, TJC’s was an unwanted birth. The center opened in January 1996 in response to federal legislation that prohibited legal-aid organizations with federal funding from litigating class-action suits and restricted their work in other areas of the law as well, including immigration and welfare.

Attorneys working on cases falling under the new ban had to move from legal-services organizations to some other entity - such as the TJC, which was chartered by various legal-aid societies in light of the new federal restrictions. Bonnyman, who had worked for years in legal services in Nashville, headed up the new agency.

While TJC helps the poor with a variety of issues, these days the firm is focusing 75 percent of its resources on TennCare. With an estimated one-fourth of the state’s 5 million citizens receiving help from TennCare, TJC has taken on a Tennessee Goliath.

Though TJC has no religious affiliation, Bonnyman sees faith as informing not only its staffers’ call to advocate for the poor, but also how TJC attorneys treat clients. "Almost everybody...has come here through a faith journey," Bonnyman says. "Our notion about the clients and who they are is very much related to those life experiences and values."

Russ Overby, another TJC attorney, links his interest in working with low-income clients to his Wheaton College days, when study and service opportunities took him out of the classroom and put him in touch with the disadvantaged. "A central part of my Christian belief," Overby says, is "caring about other people." He added, "You can’t be in the job that I have without seeing the incredible disparity between the opportunities, the resources, that low-income people have in this country and the opportunities that affluent people have."

Ted Parks, an associate professor at Lipscomb University in Nashville, Tennessee, writes about issues of faith and culture.

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