Not All Medicaid Provisions Were Created Equal

June 9, 2011

I feel like some key points I wanted to make in my last post got lost in . . . well, all those words. So I’ll try again. I do not think it is optimal policy to enforce Medicaid’s Section 30(A) “equal access” provision by means of litigating cuts in provider payment rates. The analysis required is not within the institutional competence of the courts.

But that’s not to say that there’s anything wrong with private enforcement of Medicaid provisions in general. For example, Igor Volsky wrote favorably of the Washington state supreme court’s recent decision blocking reductions in coverage of personal care for children. I agree completely with that decision and with the use of private litigation to enforce the provisions of federal Medicaid law at stake in that case.

But there are significant differences between the Washington case and the Independent Living Center case which is now pending at the U.S. Supreme Court (and which I wrote about last time). The Washington case, Samantha A. v. DSHS (pdf), concerned the “comparability requirements” of the federal Medicaid law, 42 U.S.C. 1396a(a)(10)(B), aka “Section 10(B).” Independent Living concerns the “equal access” provision, 42 U.S.C. 1396a(a)(30)(A), aka “Section 30(A).” The relevant difference between them is that Section 10(B) is cast in terms of guaranteeing a clear and specific individual entitlement, whereas Section 30(A) issues a broad, multi-faceted directive to the states which, while intended to protect Medicaid beneficiaries as a whole, does not accord them specific rights individually.1

The point is, some statutory provisions are better suited than others for enforcement by litigation. It is one thing to adjudicate individuals’ rights, but another thing entirely to adjudicate whether broad policy objectives are met.

  1. To be enforceable under 42 U.S.C. 1983, a statutory provision must contain clear rights-creating language. Note that the case was decided in state court, which means that a federal cause of action was not necessary anyway. But the case undoubtedly could have been brought in (or removed to) federal court. Unlike Section 30(A), the provisions implicated in Samantha A.—Section 10(B) and the “early periodic screening, diagnosis, and treatment” (EPSDT) provisions of 42 U.S.C. 1396d—have been found enforceable via Section 1983 civil rights actions. And whether we like it or not, the same rationale that has led the Supreme Court to limit the availability of § 1983 actions is very likely to apply to the Court’s consideration of actions brought under the auspices of the Supremacy Clause theory being tested in Independent Living. [↩]
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