By Jane Perkins, Legal Director, National Health Law Program
The U.S. Supreme Court is set to hear Douglas v.
Independent Living Center, a group of cases addressing whether Medicaid-participating
providers and enrollees may enforce the Medicaid provider payment provision, 42
U.S.C. § 1396a(a)(30)(A), in court.
Among other things, Section (30)(A) requires states to establish
payments that are “sufficient to enlist enough providers so that care and
services are available under [Medicaid] at least to the extent that such care
and services are available to the general population in the geographic
area.” The Medicaid providers’ and
enrollees’ claimed that various California laws imposing across-the-board cuts
to provider rates that threatened the ability of enrollees to access critical
health services were inconsistent with Section (30)(A) and, under the Supremacy
Clause of the U.S. Constitution, those state laws had to yield to the federal
law. The Ninth Circuit agreed.
When California asked the Supreme Court to take the case
for review last year, the U.S. Solicitor General submitted a brief to the Court
arguing against review. The Court
took the cases anyway. Last week,
in a friend-of-the court brief, the Solicitor General wrote on behalf of the
Obama administration supporting California’s position and asking the Supreme
Court to find that Section (30)(A) cannot be privately enforced. To advocates’ dismay, the
Administration did not stop there.
In an expansive argument, the brief, suggests that a cause of
action in this case would “not be compatible” with the statutory scheme
envisioned by Congress and that Medicaid enforcement rests within the sole
purview of the Secretary of Health and Human Services (who is statutorily
authorized to terminate federal funding but somewhat hamstrung from taking any
less drastic actions to enforce compliance by states). This position is wrong both factually and
legally. It is true that Medicaid
does not include an express cause of action. However, in 1965, when Medicaid was enacted, Congress was
acting under controlling Supreme Court precedent that recognized a remedial
imperative–the notion that federal judicial power would be used to accord
individuals relief from harm in the absence of an express statutory
authorization. Thus, it makes
sense that Congress would not have placed an explicit private right of action
in the statute at that time, because enforcement of statutes by individuals was
the norm. Granted, recent Supreme
Court decisions have pulled back from the remedial imperative. However, in
1994, Congress passed a law explicitly clarifying that it intends private
enforcement of Social Security Act laws like Medicaid. So, not only has the Administration
dealt a stunning blow to the vulnerable Medicaid enrollees who rely upon the
courts to ensure that states do not ignore federal law, it has taken a position
that rests on a faulty foundation. The Administration is inviting the Court to
set a very dangerous precedent and to undermine the health care security that
Medicaid provides to low-income children, families, people with disabilities
and elderly. Lacking an
enforceable right to Medicaid coverage, Medicaid would become charity, not a
legal entitlement.
The Supreme Court will hear oral argument in these cases
next Term. Meanwhile, the Administration needs to hear from us. Please take a moment to let them know
you are unhappy with the Administration’s position in this case. Here are
contact numbers:
- Nancy-Ann E. Min DeParle, Assistant to the President and
Deputy Chief of Staff for Policy: 202-456-1775, [email protected] - Melody C. Barnes, Assistant to the President and Director
of the Domestic Policy Council: 202-456-5594, [email protected] - Jeffrey S. Crowley, National AIDS Policy Director and
Senior Advisor on Disability Policy: 202-456-4450, [email protected] - Jeanne M. Lambrew, Deputy Assistant to the President for
Health Policy, 202-456-3326, [email protected]
White House switchboard: 202-456-1414.
(The views expressed by guest bloggers do not necessarily reflect the views of Georgetown University Health Policy Institute’s Center for Children and Families.)