• Private suits against Medicaid

    Implied private rights of action have suffered a long string of defeats under the Rehnquist and Roberts Courts. In October, SCOTUS will hear another one, on the implied private right to sue Medicaid. The cases are consolidated as Maxwell-Jolly v. Independent Living Centers of Southern California.

    Robert Pear has a good story at NYT. Go read that first & come back. Some comments:

    • It’s not surprising that Waxman and friends filed a brief in support of Medicaid beneficiaries. What is shocking is that the Community Organizer in Chief didn’t. Obama disrespected his base in this decision.
    • Strange bedfellows. Notice the amici supporting the Medicaid beneficiaries:

    AARP, the American Hospital Association, the American Medical Association, civil rights groups and the U.S. Chamber of Commerce also weighed in with Supreme Court briefs supporting the beneficiaries and providers. “Judicial enforcement is the only viable means to remedy states’ noncompliance with the Medicaid Act,” the A.M.A. said. (from NYT)

    • Despite this rainbow coalition, the history of judicial supervision of complex institutions (ie, judges administering programs involving busing, prisons, & health care) should raise concerns for most policy wonks. I’m not aware of careful empirical work evaluating the costs and benefits of adding judicial supervision to the state-federal governance of Medicaid. Let us know in the comments if I’m wrong. (clarified per the comment)


    • Kevin
      Last bullet, ie, “…judicial supervision…”–can you clarify for non-legal types? Is this related to supremacy clause?

      You lost me.

    • Hopefully my edit in the text helps. If not:

      When a private party sues to say “prisons are too crowded” or “busing is needed” or “California’s Medicaid program violates federal law,” then in many situations the Court ends up supervising the program for a number of years to ensure compliance with the judicial order (if the plaintiff wins). This tends to blur the distinction between the judicial and executive branches of government.

    • Kevin
      Thanks for above.

      For added clarification, why would a decision lead to judicial supervision, and not a nod back to CMS or Congress for either regulatory or legislative relief? In other words, cant SCOTUS kick it back down and ordain one of the two branches to set an appropriate access benchmark?

      Why would a court want the responsibility, unless by past (disappointing) precendent, its implicit that system is failing, and on faith, they just pick up the ball?