Monday, October 3, was opening day for the U.S. Supreme Court. The Court heard oral arguments in three consolidated cases: Douglas v. Independent Living Center of Southern California, Douglas v. California Pharmacists Assn. and Douglas v. Santa Rosa Memorial Hospital. In these cases, Medicaid recipients and providers are suing the state of California to stop 10 percent across-the-board cuts in payment rates that were instituted to address state budget deficits.
As the September 21 My Medicaid Matters Rally proved, with over 90 national co-sponsoring organizations, concern about threats to Medicaid is mounting. It’s good to see an independent living center helping to lead the charge in challenging Medicaid cuts of the magnitude seen in California. It’s also good to see people with readily apparent disabilities out marching against such cuts, as seen in a photo the Los Angeles Times carried about the case. As one of the providers’ attorneys argued, “My people have a life-or-death problem.” (I guess he must have been referring to provider concerns on behalf of Medicaid consumers.)
If Medicaid recipients and providers are not allowed to sue states to enforce Medicaid requirements, then enforcement might depend solely on the federal government. The New York Times described some of the key issues in the case:
The justices were not focused on the ultimate question of whether state officials were entitled to address the budget crisis there by lowering payments to medical providers. Rather, they considered the threshold question of whether the providers and Medicaid recipients were entitled to sue over the move.
…There is no question that federal authorities can enforce the law and that states that fail to comply with their obligations [under federal Medicaid law] face the loss of federal money. Almost as soon as the argument was under way, though, Justice Ruth Bader Ginsburg said such enforcement standing alone was problematic.
“That’s a very drastic remedy that’s going to hurt the people that Medicaid was meant to benefit,” she said of the potential loss of federal funds.
Justice Anthony M. Kennedy suggested that private lawsuits may serve a valuable role in supplementing federal enforcement, referring to a friend-of-the-court brief filed by former officials of the Department of Health and Human Services that said, “Fewer than 500 federal employees are today tasked with supervising 56 different Medicaid programs administering nearly $400 billion in federal funds every year.”
It followed, the former officials said, that exclusive enforcement by the federal agency was “logistically, practically, legally and politically unfeasible.”
For links to 11 major news outlets’ coverage of the Supreme Court arguments, the Kaiser Health News is a useful source. For legal nerds (like me) who want to look at the various briefs filed in the case, several are posted at http://www.scotusblog.com/case-files/cases/maxwell-jolly-v-independent-living-center-of-southern-california/ .
Democratic lawmakers are divided on the case. As reported in The Hill:
The Obama administration’s Justice Department argued in California’s favor, saying the lawsuits should be barred. But several Democratic leaders in Congress — including House Minority Leader Nancy Pelosi (Calif.) — filed a brief in the providers’ favor. Individuals should be able to sue as a way to guarantee that they get the full benefit of the Medicaid program, they said.
Over 30 states have filed a brief opposing the private right to sue states. To find out whether your state is one of them, you can check the states listed in their brief.
About a month ago, nearly 400 disability advocates emailed federal administration officials urging them to withdraw their friend-of-the-court brief opposing the right to sue. The letter expressed deep concerns about the potential impact of a bad decision in the case:
Those of us who have spent decades advocating for states to implement our civil right to receive Medicaid long term care services in “the most integrated setting” are painfully aware that the Department of Health and Human Services is far from effective in protecting our Medicaid rights. …
The arguments, while focusing on the particular section of law involved, could spill over and affect private enforcement of other Medicaid Act provisions. These arguments could affect the enforcement of Olmstead at the state level. …
State budget cuts to Medicaid threaten the health and sometimes the very lives of Medicaid beneficiaries. Access to the courts may be the best way, and often the only way, to protect our lives and defend our freedom. Medicaid consumers need access to federal courts if the voices of the people whose health and lives are most directly impacted by Medicaid are to be heard as loudly as the voices of the states that want the “flexibility” to ignore our rights.
In fact, as if to drive the point home, there’s news reported on the plaintiff ILC’s website of another round of threatened Medicaid cuts in California that heavily impact home and community based long term care services, including an 8.6% cut to personal care hours under the In-Home Support Services program (IHSS).
The Supreme Court decision is expected to take several months to be issued. Before then, it’s likely that many states will enact Medicaid budgets that make Douglas v. Independent Living Center of Southern California one of the most important disability impact cases in a number of years. – Diane Coleman
The New Republic featured an article about these cases this week, “How Obama is Jeopardizing Medicaid,” http://www.tnr.com/article/politics/95631/supreme-court-case-medicaid-california-affordable-care-act.