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The Official Publication of the County Judges and Commissioners Association of Texas

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Commissioners Court Advanced Curriculum

April 16, 2018 by Bailey LeRoux

As of September 2017, 619 County Judges and County Commissioners have earned their Commissioners Court Advanced Curriculum certification giving them an in-depth understanding of not only their particular office, but county government as a whole.

Commissioners Court Advanced Curriculum (CCAC) is a comprehensive educational program designed specifically for members of Commissioners Court.

“This program strengthens the credibility of our elected officials,” declared Cherokee County Commissioner Byron Underwood, chairman of the County Judges and Commissioners Association of Texas (CJCAT) County Commissioners Education Committee. “The advanced curriculum helps us learn about every aspect of county government including the duties and responsibilities of all elected officials, which helps us all excel in our official duties.” Underwood received his CCAC Completion Certificate in 2010 during his first term in office.

CCAC was adopted by the County Judges and Commissioners Association of Texas in 1992 to provide curriculum for an advanced study in county government. The program is continually updated, as foundational information provided in the original program is merged with material necessitated by legislative changes and the new and varied challenges faced by a rapidly growing state.

The development of CCAC is a combined effort of the CJCAT, V.G. Young Institute of County Government, a part of Texas A&M AgriLife Extension Service, and the Texas Association of Counties.

CCAC provides a comprehensive course of study as follows:

Phase I Orientation – All hours offered at LBJ School of Public Affairs

Phase II Basics – 16 hours

Phase III Advanced Instruction – 32 hours

Phase I Orientation courses currently are offered at the LBJ School of Public Affairs Seminar for Newly Elected County Judges and Commissioners, which is conducted in Austin every January following an election year. Since it is not feasible to require County Judges and Commissioners to retroactively attend the LBJ Orientation Seminar, County Judges and Commissioners who assumed office prior to Jan. 1, 1995, are permitted to substitute 16 hours of other approved instruction for the orientation course.

Phase II County Government Basics includes instruction concerning the duties and responsibilities of all county officers and departments. Phase III includes advanced instruction in the functions of county government. These courses are offered at the annual County Judges and Commissioners Association of Texas regional and state conferences and the annual V.G. Young Institute of County Government School for County Commissioners Courts.

Filed Under: Commissioners, Feature Story Tagged With: Feature, featured

Valuable Budget Tools

April 9, 2018 by Bailey LeRoux

Calendar, Vision Help Guide Lengthy Process 

Legal document…approved expenditures…statement of revenue…expenses and fund balances…

While these technical definitions of the county budget are certainly valid, the budget document often embodies much more to Commissioners Courts and the constituents they serve. In many counties, the facts and figures in the budget ultimately originate from a set of goals or vision statement. A segment of the mission statement is dictated by state law, as counties must fulfill responsibilities mandated by the State of Texas. Another segment of that mission is often more personal. For example, consider the Gregg County Mission Statement, included in the county’s finalized budget document: “Our mission is to provide quality services that are responsive, respectful and effective in a fair and equitable manner that will enhance the quality of life for Gregg County residents.”

Gregg County’s Mission Statement is rounded out by a multipronged vision and 10 overall goals.

Walker County includes in its budget document both general goals and primary goals that help direct budget proceedings. For example, the 2018 budget offered a multipage narrative on how the county approaches long-term planning, referencing initiatives including the Walker County Economic Development Policy and the Walker County Safety Community Plan.

“Walker County is also very involved in several interagency public safety task forces, and budgeting for grant match needs is a high priority budget item as is funding the personnel needed to address public safety concerns,” the budget reads.

The final budget document also lists primary goals that helped drive the 2018 budget process:

  • to aim at not adopting a tax rate that exceeded the calculated effective tax rate;
  • to maintain at least the same level of service to the community;
  • to continue with the equipment and vehicle replacement schedules;
  • to continue to budget for major maintenance to the aging buildings;
  • to continue to supplement the Road and Bridge Fund budget from one-time monies available;
  • to set aside monies for planning for future retiree health insurance planning –begin to build ongoing allocations into the budget and supplement with one-time monies available;
  • to meet the most pressing needs identified by the elected officials and department heads within the dollars available;
  • to maintain the budgeted fund balance at no less than the minimum level set in budget policies of 16.67 percent with a preference for a higher percentage; and
  • to fund ongoing costs with revenues generated in the current year.

“Commissioners Court met their goals,” stated Patricia Allen, Walker County auditor, in the 2018 budget cover letter.

Both Walker and Gregg counties use a budget calendar to guide the lengthy process, which usually spans a six-month period.

“The budget calendar allows for an organized effort in the budgeting process to happen in a timely manner,” shared Walker County Judge Danny Pierce. “Every department has ample time to separate needs from wants and prepare for presentation to Commissioners Court.”

The annual budget process is complex involving statutes for ad valorem tax, financial accounting, archival plans, salaries for elected officials, specialized local entities, and budgeting, explained Gregg County Judge Bill Stoudt. Each section of the law has specific requirements for public notices and/or public hearings.

“An effective budget calendar combines these requirements and ensures compliance with all statutes,” Stoudt continued. The calendar distributed in the Gregg County budget instruction manual and the annual budget provides major dates of interest to departments and the public, and the detailed calendar used by the Judge’s office includes deadlines and statutes for all the complex pieces of the budget cycle. The detailed Gregg County budget calendar is available to anyone upon request.

The Texas Association of Counties provides a detailed calendar on its website at https://www.county.org/for-county-officials/Pages/Budget-and-Tax-Planning-Calendar.aspx.

Both Gregg and Walker counties supplement the facts and figures within the budget with explanations of how decisions are made including budget policy, cash management strategies, and issues that affect the decision process.

“At the end of the day what matters is how we work together and do what is best for Gregg County,” Stoudt declared. “The bottom line is, we are public servants who are accountable to our citizens.”

Filed Under: Budget, Feature Story Tagged With: budget, Feature, featured

What You Wish Your Constituents Knew About County Government, the County Budget, and the Property Tax

April 1, 2018 by Bailey LeRoux

Per reader request, we publish this article several times a year. We receive regular calls asking for permission to reprint and/or share this story with local community groups and constituents. We welcome you to use this article to help educate the public you work so diligently to serve. 

By Julie Anderson

Editor

 

What is County Government?

In the State of Texas, county government is a unit of state government often referred to as “an arm of the state.” However, county government also acts as a unit of local government. Consequently, county governments in Texas perform two basic functions:

  1. Carry out administrative and judicial responsibilities for the State of Texas.
  2. Carry out local government responsibilities for county residents.

County governments can only take those actions specifically authorized by state law. Equally important, Texas counties must do those actions required by state law. Unlike cities, counties have no general ordinance-making authority.

As a unit of state government, mandatory county government responsibilities include:

  • Set budget and appropriate tax rate to fund local government.
  • Conduct elections.
  • Process and maintain voter registration.
  • Provide for public safety.
  • Maintain and operate the court and jail system including provision for indigent legal defense.
  • Provide medical care for indigent county citizens.
  • Facilitate the issuance and recording of public documents.
  • Process motor vehicle registration and title transfers.
  • Collect and remit state motor vehicle taxes.
  • Provide local support for state agencies such as Texas Department of State Health Services, Department of Public Safety, Texas Parks & Wildlife, and the Alcoholic Beverage Commission.

As part of their commitment to the local community, Texas county governments traditionally seek to provide more than mandatory services. County governments also provide funding for authorized discretionary or optional services, such as parks, community centers, libraries, senior centers, emergency medical and family services, and county fairs. Funds also may be used to support tax incremental reinvestment zones, certain non-profits, and other special programs that enhance the quality of individual lives and the community as a whole.

 

Who is in Charge of County Government?

County government is governed by the County Commissioners Court, comprised of one County Judge and four County Commissioners. A major responsibility of the Commissioners Court relates to setting the county budget. As explained in Chapter 111 of the Local Government Code, Subchapters A, B and C, the county budget officer may be the County Judge, the county auditor, or an appointee, depending on population. During budget development, the Judge and the Commissioners consider the funding necessary for county offices to carry out their mandatory duties. The Commissioners Court must fund these responsibilities first before deciding which discretionary services to provide.

Who Pays for County Government?

The taxpayer funds the majority of county government via the property tax, or ad valorem tax, which is the largest revenue source for Texas counties. About half of Texas’ 254 counties also receive funding from a local county sales tax, which when adopted allowed them to lower their property tax rate.

According to the Texas Constitution, the county cannot levy a tax rate in excess of $.80 per $100 of property value for the county’s general fund, permanent improvement fund, road and bridge fund, and jury fund. On top of the $.80, the county is authorized to levy a $.15 road and bridge tax and a $.30 farm-to-market road/flood control tax; however, these taxes are subject to voter approval. In addition, counties on the Gulf of Mexico can levy a special tax for construction of sea walls, breakwaters, or sanitary purposes, not to exceed $.50 per $100 valuation. Counties are also authorized by several statutes to levy certain special purpose taxes. However, these taxes when combined with the general fund tax may not total more than $.80 per $100 assessed valuation. Property tax rates across the state are as varied as the counties themselves, with some counties hovering in the 20- to 30-cent range and others approaching or even reaching the maximum 80 cents.

In addition to the property tax and county sales tax, counties rely on fines and fees; intergovernmental revenue such as federal and state grants, contractual money, and statutory money from the State of Texas; miscellaneous revenues or transfers; and interest.  However, the property tax is the most significant funding source of county government.

Sometimes, the State of Texas provides counties the necessary funds to administer state-mandated services. However, this is not always the case. When the State of Texas requires a service of a county but does not provide the necessary funding, this is called an “unfunded mandate,” whereby the county is forced to produce the necessary funding on its own.  This may present a challenge to counties when working on the county budget and may impact the final property tax rate.

The property tax rate is determined after county properties are appraised.

(For more on unfunded mandates, see the Unfunded Mandates Survey Report, published in the February 2018 issue of County Progress.)

 

Who Conducts Property Appraisals?

Property appraisals are conducted by appraisal districts, which are charged with identifying and listing the value of all property in the county for taxation. The appraisal district is not part of the city, county or school district. Rather the appraisal district is an independent government. While state law created “centralized” appraisal districts, many counties retained the word “county” in their title, sometimes creating the perception that appraisal districts are part of county government. Again, appraisal districts are not a part of county government.

After identifying, listing and appraising all taxable property within the county, the appraisal district certifies the tax roll. When the roll is certified, it means the property value has been agreed to or has not been challenged by the property owner. The Commissioners Court is not involved in any portion of the appraisal process.

 

How Does the County Set the Tax Rate?

The Commissioners Court approves the budget and sets the tax rate on the appraised properties to help fund the county budget and service any county debt.

Beginning in early August, taxing units take the first step toward adopting a tax rate by calculating and publishing the effective and rollback tax rates.

  • Effective tax rate. The effective tax rate is a calculated rate that would provide the taxing unit with about the same amount of revenue it received in the year before on properties taxed in both years. If property values rise, the effective tax rate will go down and vice versa. The effective tax rate is a starting place. Commissioners Courts review how much money they required the previous year and determine if they need more or less.
  • Rollback tax rate. The rollback rate is a calculated maximum rate allowed by law without voter approval. The rollback rate provides the taxing unit with about the same amount of tax revenue it spent the previous year for day-to-day operations, plus an extra 8 percent increase for those operations, in addition to sufficient funds to pay debts in the coming year. If a unit adopts a tax rate higher than the rollback rate, voters in the unit can circulate a petition calling for an election to limit the size of the tax increase.
  • Actual tax rate. Commissioners Courts set the tax rate based on how much money they will need to fund the county budget and service any county debt. In some cases, this may be the calculated effective tax rate or the rollback rate, but not necessarily so.
  • A concept called “truth in taxation” requires the taxing entity to post the proposed tax rate and conduct hearings if the proposed rate brings in any additional revenue to the entity.

This process is admittedly confusing and has created some common misperceptions:

Incorrect: The county conducts appraisals.

Correct: Central appraisal districts, which are not part of county government, conduct appraisals.

Incorrect: Taxpayers should contact the Commissioners Court if they have problems with their appraisal values.

Correct: Taxpayers should contact their central appraisal district.

Incorrect: If the appraised value of my property goes down, then my taxes will automatically go down.

Correct: If the county adopts the calculated effective tax rate, then the tax rate will be adjusted to bring in the same amount of money for the coming year that was on the tax roll in the last year. In this case, even though the appraised value went down, taxes would go up in order to bring in the same amount of revenue as the previous year.

Incorrect: An increase in appraisal values is an automatic windfall for counties and other taxing jurisdictions.

Correct: An increase in value is offset by an automatic lowering of the tax rate that the county must begin with, which is the effective tax rate.

Incorrect: Counties can raise taxes as high as they want.

Correct: The amount of taxes needed depends on how much the county needs to fund the county budget and service any county debt. If appraised values go down but budget needs go up, the tax rate will be adjusted to reflect this need. If a county adopts a tax rate higher than the rollback rate, voters can circulate a petition calling for an election to limit the size of the tax increase.

Filed Under: Budget, Feature Story Tagged With: budget, Feature, featured

Inmate Health Care

March 19, 2018 by Bailey LeRoux

Sandra Bland Act Mandates Telemental Health Access

By Julie Anderson

Editor

 

The 85th Texas Legislature’s mandate requiring telemental health access in county jails may seem daunting at first. However, correctional care experts say that while finding providers may be a challenge, the setup itself is not so difficult; after all, telehealth has been well used in prisons for decades. 

Correctional Health Care and Telemedicine

The Correctional Managed Health Care Committee (CMHCC), authorized by Chapter 501, Subchapter E of the Texas Government Code, was originally established by the 73rd Texas Legislature in 1993 to address the rising costs and operational challenges involved in providing health care to prisoners confined in the Texas Department of Criminal Justice (TDCJ).

The CMHCC oversees a health care partnership between the TDCJ, Texas Tech University Health Sciences Center (TTUHSC) and the University of Texas Medical Branch at Galveston (UTMB).

The original mission of the committee was to develop a statewide managed health care plan that provides TDCJ offenders with timely access to quality health care while also controlling costs. Both TTUHSC and UTMB have utilized telemedicine to help fulfill this purpose.

TTUHSC Correctional Managed Health Care (CMHC) provides health services to offender patients in state prisons, jails and transfer facilities throughout the West Texas region, reported Will Rodriguez, senior managing director for TTUHSC CMHC. This region includes 21 units at 17 geographic locations, and all are telehealth enabled.

“We’ve found our telehealth program maximizes provider resources and mitigates some of the innate challenges of the correctional environment,” Rodriguez shared.

UTMB’s Correctional Managed Care (CMC) program provides complete medical care, psychiatric care, and dental services to approximately 118,000 offenders within the TDCJ at approximately 83 facilities throughout the state, said Dr. Owen Murray, executive director of clinical services and chief physician executive for the UTMB-CMC program. With the addition of several Texas juvenile facilities and four county jails, the total number served is about 122,000. The telemedicine component of each program is a supplement to what the correctional facilities already have on-site.

“Telemedicine service is very amenable to delivering a wide spectrum of health care services,” Murray offered. “The technology is expanding so rapidly with the frame speed increasing to basically ‘real’ time, so there is no gap in being able to see the patient and talk effectively,” he continued. “The improved technology has been accompanied by a decrease in equipment cost, making telemedicine effective in a gamut of clinical settings.”

Equally important to the success of telemedicine is the availability of electronic health records.

“I may be in Galveston seeing a patient from Beeville, and I have access to the patient’s medical records as if I am sitting right there with the patient,” Murray explained. “The ability to review the electronic chart has helped improve the efficiency and quality, whereas before users had to pick pieces out of charts and fax them back and forth.”

When it comes to correctional telemedicine, one of the primary benefits is the public safety component, Murray emphasized, as taking an offender off the prison premises increases the risk of incident.

“Often, when you hear of escapes the occurrence has involved health care,” he noted.

UTMB also provides correctional telemedicine for four counties: Burnet, Comal, El Paso and Victoria. In addition, UTMB has contracts with Victoria County and University Health Systems (Bexar County Jail) for psychiatric services.

 

New County Mandate

On June 15, 2017, Gov. Greg Abbott signed Senate Bill 1849, known as the Sandra Bland Act, into law. Among other requirements, the new law mandates that county jails:

  1. give prisoners the ability to access a mental health professional at the jail through a telemental health service 24 hours a day; and
  2. give prisoners the ability to access a health professional at the jail or through a telehealth service 24 hours a day, or if a health professional is unavailable at the jail or through a telehealth service, provide for a prisoner to be transported to access a health professional.

The deadline for the Texas Commission on Jail Standards (TCJS) to adopt rules and procedures regarding these new requirements is Sept. 1, 2018. The county must comply with these new requirements by Sept. 1, 2020.

The Sandra Bland Act also created an account titled the Prisoner Safety Fund. Counties that operate a jail that is 96 beds or less may apply for grants to assist in paying for capital improvement upgrades to county jails, specifically newly required cameras and sensors, another component of the legislation. Depending on the level of funding, leftover money could possibly go toward the telehealth equipment, but not ongoing costs. The grant program is currently in development. (To read about the Sandra Bland Act in full, see the December 2017 issue of County Progress.)

Murray does not view setup cost as the most challenging aspect of the telemental health mandate. After all, the mental exam is mostly conversational. In fact, Murray said, telemental health could be as simple as Skype, which is a form of telecommunications software that facilitates video chat. Of course, the connection must be secure and guarantee privacy.

“On the mental health side, there are a lot of inexpensive vehicles that can be used to meet the intent of the law,” Murray observed. However, the difficulty may be in finding providers.

“It will be a challenge to staff,” he surmised. There are approximately 45,000 psychiatrists in the United States, and that number is “staggeringly small.” With that said, the legislation references access to “mental health professionals.” Once that definition is clarified, as to who qualifies as a professional, and other rules are established, it will be easier to proceed with a delivery model, Murray said.

With regard to telemedicine and physical health, the initial costs could range from $3,000-$5,000 for equipment, depending on the sophistication level, Murray stated. Ongoing costs would depend on the spectrum of services and arrangement with the provider.

Counties interested in telehealth services are welcome to contact UTMB and request a mock run and view current contracts and business plans, said Steve Smock, associate vice president Comprehensive Health Care for UTMB CMC, srsmock@utmb.edu.

“We would be able to discuss various telemedicine delivery systems from very basic to rather elaborate,” Smock detailed. Or, the county could request a site visit at the jail facility.

“Currently, we don’t have a set-fee basis,” he explained. “The cost would depend upon the elaborateness of the telemedicine equipment they desired, the level of care they required, and the volume of care they required. We have discussed both a subscription account with a set number of authorized visits, or a fee-for-service basis.”

Burnet County hired UTMB to provide medical and dental services in November 2015, including telehealth. Four “presenters” – all UTMB employees – work at the jail and facilitate the telemedicine exams.

Victoria County contracted with UTMB one year ago for medical, dental and mental health services, including telemedicine and telemental health provisions.

The telehealth options are a supplement to what the county has on-site, Murray noted.

“This arrangement with UTMB was a step in the right direction,” shared Victoria County Judge Ben Zeller. “Aside from providing much-needed health care specialties, including psychiatry, UTMB now assumes the liability for medical actions performed in our county jail.”

The UTMB partnership gives Victoria County inmates access to 26 physician subspecialties through telemedicine.

“Appointments conducted through telemedicine eliminate costs associated with escorted, offsite transports and related security matters,” said Roy Boyd, chief deputy with the Victoria County Sheriff’s Office “This allows the detention division to keep the inmates within the security of the facility. It is also cost effective and provides access to diverse medical expertise.”

The telemental health arrangement includes four hours of scheduled mental health consults. Once the telemental rules have been set and the effective date of the Sandra Bland Act approaches, adjustments will be made to telemental health access, Smock shared.

“At any given time, between 60 percent and 70 percent of Victoria County inmates are on psychotropic medications,” Boyd reported. “It was key for us to get some sort of mental health component with our medical care.”

There was no initial cost to Victoria County for the setup during the transition, Boyd specified. The ongoing cost is a monthly fee as dictated in the UTMB contract to provide medical services.

When it comes to providing professional health care to inmates – whether it be physical or mental health care – Boyd operates from a purposeful premise.

First, whereas before the jail staff was assisting in the health process, the jail staff is now free to do more of what they are meant to do, which is keep watch over the inmates and ensure the jail is safe and secure.

Second in this “win-win” arrangement is taking proper care of the inmates, who are innocent until proven guilty, Boyd emphasized.

“Part of ensuring that we are doing the right thing for these prisoners is giving them the care they need,” Boyd maintained. “If they wish to be productive members of society when they are released, then we want to try and do the best for them while they are here. That’s how we see it.”

Counties wishing to learn more about Victoria County correctional care including telehealth services are welcome to contact Boyd at 361-574-8002.

Filed Under: Feature Story, Indigent Health Care Tagged With: Feature, featured, Indigent Healthcare

Opioid Epidemic Takes Toll on Local Government Multiple Counties Take Legal Action

March 12, 2018 by Bailey LeRoux

By Julie Anderson

Editor

The statistics are staggering and startling. According to the Centers for Disease Control and Prevention (CDC), overdose deaths involving prescription opioids were five times higher in 2016 than 1999, and sales of these prescription drugs have quadrupled.

“Opioid prescribing continues to fuel the epidemic,” the CDC states. “Today, 40 percent of all U.S. opioid overdose deaths involve a prescription opioid. In 2016, more than 46 people died every day from overdoses involving prescription opioids.”

The CDC also points out that overdose is not the only risk related to prescription opioids. Misuse, abuse, and opioid use disorder (addiction) are also potential dangers, https://www.cdc.gov/drugoverdose/data/overdose.html.

  • In 2014, almost 2 million Americans abused or were dependent on prescription opioids.
  • As many as 1 in 4 people who receive prescription opioids long term for noncancer pain in primary care settings struggles with addiction.
  • Every day, over 1,000 people are treated in emergency departments for misusing prescription opioids.

The Office of National Drug Control Policy reports that in 2016, more than 11.5 million Americans ages 12 and older reported misuse of prescription opioids in the past year.

According to the National Institute on Drug Abuse, opioids bind to and activate opioid receptors on cells located in many areas of the brain, spinal cord, and other organs in the body, especially those involved in feelings of pain and pleasure. When opioids attach to these receptors, they block pain signals sent from the brain to the body and release large amounts of dopamine throughout the body. This release can strongly reinforce the act of taking the drug, making the user want to repeat the experience. For more information, see the related box, What are Prescription Opioids? on page 26.

The tragedy behind the number of deaths and addictions continues to surface as more and more families take to the air waves and social media and visit support groups and schools to tell their stories in the name of prevention. Parents are losing sons and daughters, siblings are growing up without their brothers and sisters, children are being placed in foster homes as their parents undergo court-ordered treatment, and newborns are being diagnosed with opioid withdrawal after birth, known as neonatal abstinence syndrome (NAS). Many of these sad scenarios involve emergency response, health care, indigent health care, social services and law enforcement, all of which involve local government.

For several years entities in other states have been taking legal action in an attempt to hold various parties including pharmaceutical companies, marketers and distributors responsible for the epidemic and recoup costs. Some liken the effort to the historic settlement negotiated with tobacco companies in the summer of 1998. With regard to Texas counties, tobacco companies agreed to create a $2.275 billion fund for the benefit of “all hospital districts, other local political subdivisions owning and maintaining public hospitals, and counties of the State of Texas responsible for providing indigent care to the general public.”

Counties Taking Legal Action

Upshur County was the first Texas county to file suit against opioid makers, taking action in October 2017 citing the impact on indigent health care costs and inmate care.

“By pursuing cases against the opioid drug industry, counties have a chance to recover some of the taxpayer money they have spent and continue to spend to combat the high cost of opioid addiction, overdose, and diversion in their communities,” stated Jeffrey Simon, attorney and co-founder of Simon Greenstone Panatier Bartlett, P.C., the firm representing Upshur County. “Most successful methods to treat opioid addiction cost a great deal of money, and often those costs fall upon counties. A prime example is when an opioid addict is arrested and put into jail.”

Simon Greenstone has also filed lawsuits on behalf of Bowie, Cherokee, Hopkins, Lamar, Morris, Red River, Rusk and Titus counties.

The McLennan County Commissioners Court retained counsel and filed a lawsuit against opioid manufacturers and distributors in October 2017.

“We are trying to recoup some of the cost,” explained McLennan County Judge Scott Felton. McLennan County is a medium-size county, much larger than surrounding counties.

“Their medical facilities are not as advanced as ours; therefore, we have a lot of opiate abusers who cross county lines,” Felton continued.

Harris County filed its petition in December 2017, noting that “Texas counties have found themselves to be innocent participants in the battle against opioids and their crushing financial effect on our county.”

The suit notes that the county provides services on behalf of its residents “including but not limited to, services for families and children, public health, public assistance, law enforcement, and social services, as well as medical and prescription benefits that the county provides to its employees and retirees.”

As explained in its lawsuit filed on Jan. 8, 2018, Dallas County “provides a wide range of services on behalf of its residents, including services for families and children, public health, public assistance, law enforcement and emergency care.”

By filing suit, Dallas County hopes to “hold the responsible drug companies financially accountable for their significant role in creating this epidemic in Dallas County and, through any financial recovery in the case, to provide more and better opioid addiction treatment, overdose treatment, neonatal care for opioid-addicted newborns, foster care for the children of opioid-addicted parents, and educational programs to prevent the spread of opioid overuse,” shared Ruby Blum, health policy adviser to Dallas County Judge Clay Jenkins.

“The ongoing opioid epidemic is devastating Texas communities and draining significant public resources,” declared Mark Lanier, attorney and founder of The Lanier Law Firm, one of the firms representing Dallas County. “Texas counties are ground zero for this fight and the nuisance it creates in our communities.

“Pursuing litigation provides an avenue for Texas counties to recoup the significant resources drained from their budgets as well as a path to abate this public nuisance through injunctive relief,” observed Lanier, whose firm also represents Tarrant and Travis counties, among others.

“This is not just about collecting money damages,” Lanier continued. “It represents an avenue to try and fix this crisis going forward.”

In early December 2017, the U.S. Judicial Panel on Multidistrict Litigation (MDL) ordered that all federal opioid lawsuits be sent to U.S. District Judge Dan Polster of the Northern District of Ohio.

When an MDL is created, lawsuits that have been filed in federal courthouses across the country are consolidated and transferred to a single federal court. The opiate suit is officially known as the National Prescription Opiate Litigation – MDL No. 2804. In January, a plaintiffs’ executive committee was appointed to assist and advise lead counsel “in the massive undertaking of coordinating and conducting pre-trial proceedings.” Mark Lanier of The Lanier Law Firm was selected for this committee.

While some Texas counties have filed lawsuits in federal court, others have filed in state courts.

 

Evolving Opioid Use

According to the Upshur County lawsuit, opioids were tightly regulated for short-term acute pain treatment and to ease end-of-life suffering until the manufacturers made a push in the late 1990s to encourage doctors to expand prescribing painkillers.

“Relying on now-debunked studies and the assurances of key medical opinion leaders, primary care doctors were inundated with a message that opioids were a safe, non-addictive means to treat even moderate chronic pain on a long-term basis,” the lawsuit states.

Other county suits state that the defendants downplayed the serious risk of addiction; promoted and exaggerated the concept of “pseudoaddiction” thereby advocating that the signs of addiction should be treated with more opioids; exaggerated the effectiveness of screening tools in preventing addiction; claimed that opioid dependence and withdrawal are easily managed; denied the risks of higher opioid dosages; and exaggerated the effectiveness of “abuse-deterrent” opioid formulations to prevent abuse and addiction.

Pharmaceutical companies are vehemently denying the allegations, pointing to policies that deter pain killer abuse. Other defendants are also denying the claims and have stated they are eager to defend themselves in court.

“Opioid prescription medications are highly addictive, but have legitimate medical use in limited circumstances,” noted Dallas County Judge Clay Jenkins. “This is why they have long been Schedule II controlled drugs.

“Most doctors who prescribe opioids are good doctors who practice safe medicine in prescribing opioids to patients who legitimately benefit from them in conservative use,” Jenkins continued. The Dallas lawsuit “will not hinder the prescribing and use of opioid pain medications for therapeutic purposes. But too many opioids are being consumed in Dallas County because certain drug companies have aggressively promoted opioids as less addictive and safer for perpetual use than they really are. And some distribution companies have knowingly turned a blind eye at suspicious prescription patterns, and they need to stop. This lawsuit is intended to bring common sense and restore public health by reducing the glut of opioids in this county and the misery that glut causes.”

As of press time, none of these cases had proceeded to trial, and counties were still determining exact damages. Both officials and litigators have acknowledged that these types of cases often take long, winding paths and could take years to resolve.

 

Litigation Considerations

For those counties who may be contacted by firms to consider litigation, Jim Allison, general counsel to the County Judges and Commissioners Association of Texas, offered perspective and suggested questions:

Since recovery in these cases is not certain and litigation costs will be large, counties usually seek representation on a contingent fee basis. This means that the law firm provides representation and covers all expenses for a percentage of any recovery. When considering such representation, the Commissioners Court should carefully evaluate the proposed legal services agreement, Allison advised. Some standard questions include the following:

  1. What experience and success has the law firm demonstrated in these types of cases in the past? Did those include representing governmental entities? Who will be responsible for communication with the county?
  2. What is the financial capacity of the law firm to provide representation over an extended period while covering the expenses, including fees for expert witnesses? Has the firm prepared a litigation budget and estimated timeline?
  3. Has the law firm been retained by other governmental entities in this matter? How will any recovery be divided among the entities?
  4. Will the law firm affiliate with other law firms representing other plaintiffs in this matter? How will expenses, fees and recovery be divided among the law firms?
  5. Where will this lawsuit be filed? State court or federal court? Why?
  6. If in federal court, is the firm affiliated with a firm that is part of the MDL?
  7. Does the law firm intend to join this suit into a class action? If so, why?

The proposed legal services agreement should be reviewed by an attorney for the county to ensure that it is a true contingent fee contract, Allison said. In the past, some firms have attempted to obligate counties to pay litigation expenses regardless of the outcome. Some firms have attempted to include normal operating costs as litigation expenses, increasing their share of any recovery.

There is no need to rush these decisions, Allison observed. When in doubt, consider proposals from several firms.

Filed Under: Cover County Tagged With: Feature, featured, Indigent Healthcare, opioids

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