Health “Reform” in the Supreme Court
And no, it’s not the case you’re thinking about…
Today, on the first day of the Supreme Court’s October term, the nine justices will hear a consolidated set of cases from California regarding Medicaid state payment levels. The cases center around whether Medicaid providers and beneficiaries have a private right of action (i.e., the right to sue) against state officials regarding reimbursement rates and beneficiary access.
Two key questions related to Obamacare surround this suit. First, will states face yet another obstacle – namely, persistent lawsuits from provider and/or patient groups – as they try to implement the law’s massive Medicaid expansion? At a time when states face budget deficits totaling a collective $175 billion, the health care law is imposing new unfunded mandates of at least $118 billion. States have already protested the massive uncertainty that the Administration’s dithering on important regulations has created for them in trying to implement the massive and cumbersome law. Will they now be faced with even more uncertainty in the face of a newly empowered trial bar that feels free to sue Medicaid agencies at will?
While the Administration has filed a brief supporting the states’ position, other liberals have sided with the trial bar in favoring the right to sue. In August, a group of Congressional Democrats – including Leaders Pelosi and Reid, and Chairmen Baucus and Harkin – filed an amicus brief with the Court asking them to sustain a private right of action, arguing that giving beneficiaries the right to sue states “provides impoverished Medicaid patients and the medical providers who serve them a means of redress in the court system that they would often not have in the political battles over budget cuts.”
That then raises the second key question related to Obamacare: Why do Democrats claim to support allowing lawsuits for Medicaid patients, when these same Democrats voted for a bill (now law) that denies Medicare patients – many of whom are also on Medicaid – the ability to sue to stop treatments being denied them by an unelected board? Specifically, Section 3403 of Obamacare explicitly DENIES Medicare patients the right to sue over restricted or denied access to care, prohibiting lawsuits against the rulings of the law’s new board of 15 unelected, unaccountable bureaucrats. What’s more, Medicaid providers and beneficiaries currently have a form of redress – they can (and have) utilized federal administrative processes through Washington to demand changes in state Medicaid programs. Conversely, Obamacare prohibits BOTH judicial AND administrative review of the board of bureaucrats’ Medicare rulings – making the power of these unelected officials nearly absolute.
The contradictory messages from the Democrat leaders who signed the brief supporting a private right of action indicate an apparent desire to see trial lawyers sue everyone BUT the federal government. Hopefully the Supreme Court will see through the legal and policy problems associated with such an approach, and provide the states a modicum of certainty in uncertain times by declining to endorse a private right of action for Medicaid patients.