In November of 2022, Medicaid legal and policy experts sat on edge as the Supreme Court heard oral arguments in a case called Talevski, which threatened to do great damage to Medicaid rights. There was a collective sigh of relief when the Court ultimately ruled to uphold Medicaid rights in the case. But most of us – present company included – did not see the Supreme Court’s gambit. Talevski was a set-up. And now all the pieces are falling.
But before we get to the Supreme Court’s artifice, let’s review the key legal background, which we’ve covered previously. You might think that any time a state violates Medicaid law people should be able to sue to enforce their rights in court. But alas, the law is not so simple. To bring a case, individuals need a private right of action, a legal pathway to enforce the law. The good news is that a civil rights law known as Section 1983 creates such a private right of action for individuals to bring suits against states in federal court when their federal rights are violated; the bad news is that the Supreme Court has for years been narrowing the set of Medicaid rights that can be enforced through the Section 1983 pathway. Specifically, the Supreme Court has been setting stricter and stricter and stricter requirements that the specific Medicaid right in question be written in a meticulously particular way. For example, if Congress’s law says “all individuals in Medicaid must get X”, even that would not necessarily be enough for this Supreme Court to conclude that Congress meant people to have a right to X.
That brings us back to Talevksi. In Talevski, the Court was deciding whether some specific nursing home rights should be enforceable rights in federal court. Medicaid allies were terrified when the Supreme Court took the case because those protections are so explicitly written that it seemed that the Supreme Court was poised to entirely eliminate private enforcement of Medicaid law. When the Court ruled in favor of Medicaid rights, that collective sigh of relief misunderstood the Court’s gambit: in taking the Talevski case, and building a favorable decision around the nursing home rights in that case, the Supreme Court was setting an impossibly high watermark for future Medicaid rights cases. It was as if the Court took Albert Einstein’s physics test score and set that as the new passing grade for the rest of the class. The opponents of Medicaid on the Court didn’t take the Talevski case to protect nursing home rights, they took the case to set the high bar that would block all the other rights.
This became clear in last summer’s Medina decision, which may be the basis for denying Medicaid rights for decades to come. In that case, as we previously covered, the Court decided that the right to choose your medical provider, one of the most basic rights a person can have in a health care program, was not enforceable because it didn’t have the same magic combination of words that were in the nursing home rights law in the Talevski case. Of course, Congress didn’t use the magic words when it wrote the provider choice law in 1967 because, to the best of my knowledge, Congress lacked a time machine allowing it to travel to 2025 and discover that the Supreme Court would be requiring certain magic words starting in 58 years’ time. Talevski set the impossibly high standard, and Medina now sets the precedent for failing to meet the standard.
And things are getting worse. Fast. At the end of December 2025, Medina was used by the Tenth Circuit in a case called Lancaster to find that the right to have reasonably prompt enrollment if you are eligible for Medicaid is not an enforceable right. The Lancaster decision only controls the Tenth Circuit (CO, KS, NM, OK, UT, and WY), so this is not a national precedent, but it’s hard to escape the feeling that more problems are coming. The right to enroll when eligible would literally be on the shortlist of three or four most important legal rights in Medicaid—losing this cornerstone right would be devastating. What that would mean is that if a state chose to not enroll eligible individuals (for example, by creating a waiting list for enrollment, which is patently against the law for general enrollment), individuals would have no right to sue. The Department of Health and Human Services (HHS) would still have the power to take enforcement action against the state—but HHS might not have the resources or inclination to force states to comply.
(It is important to note regarding the Lancaster case that the dispute in the case was of dubious merit, the legal strategy was unclear, and the Tenth Circuit’s opinion and analysis was not comprehensive or compelling. It’s not clear that the judicial panel understood the broad implications of its decision outside the context of the anomalous case it was reviewing. Other courts, with more exemplary cases, might come to very different conclusions.)
In any event, the situation is dire. The Supreme Court ruled in favor of Medicaid rights in Talevski yet set up a major regression in private enforcement in Medicaid rights, and it is well underway. Medina was the beginning of that new decline, which now includes Lancaster, and could lead to the loss of other rights in the coming years. Getting out of this hole will take time and effort. The current Supreme Court includes justices going well out of their way to prevent Medicaid enrollees from enforcing their rights, and replacing judges takes time. Congress will need to learn to write new laws to account for the labyrinthine new hoops the Supreme Court is making enrollees jump through. And lawyers will need to be a lot more thoughtful and careful before bringing cases (like that Lancaster case) in front of the current judiciary.
In the meantime, many Medicaid enrollees—or people who should be enrolled in Medicaid—will be wronged and left asking: what good are my rights if I can’t enforce them?