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, ndeparle@who.eop.gov
• Melody C. Barnes, Assistant to the President and Director of the Domestic Policy Council: 202-456-5594, domesticpolicycouncil@who.eop.gov
• Jeffrey S. Crowley, National AIDS Policy Director and Senior Advisor on Disability Policy: 202-456-4450, jcrowley@who.eop.gov
• Jeanne M. Lambrew, Deputy Assistant to the President for Health Policy, 202-456-3326, ssekhar@who.eop.gov

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.)