This Supreme Court term has been another important one for health care. The Court was presented with several cases that questioned the scope of the government's power to enact laws regulating health care access or quality, when such laws are viewed as burdening religion or speech. The two cases receiving the most attention - Burwell v. Hobby Lobby and McCullen v. Coakley - involved challenges to laws protecting women's access to reproductive health care. But there were two other noteworthy cases - Pickup v. Brown and Welch v. Brown - which involved challenges to a law that bans a discredited health care practice that is harmful to the mental and physical health of sexual minorities.

Health law scholars and advocates have been watching these cases closely because of the growing number of examples of free speech or religious freedom claims being used to defeat, avoid or invalidate important health protections. For those who envision a robust regulatory role for government in protecting and promoting health - especially for groups that have historically been the targets of health care discrimination - this term brought some good news and some bad news.

Continue reading "Supreme Court Health Law Update: Abortion, Contraception, & Gay "Conversion Therapy"" »

Last August, in Betlach v. Planned Parenthood Arizona Inc., the Ninth Circuit invalidated an Arizona law that would have excluded Planned Parenthood as a Medicaid provider, and thus prohibited Medicaid beneficiaries from accessing preventive and reproductive health care at Planned Parenthood facilities. This law is similar to an Indiana law that was also invalidated by the Seventh Circuit the year before. Both circuits held that the laws violated a provision in the Medicaid Act known as the "free-choice-of-provider" requirement. This provision says that state Medicaid programs must allow Medicaid recipients to obtain care from "any [provider] qualified to perform the service or services required" and that enrollment in a Medicaid managed-care plan "shall not restrict the choice of the qualified [provider] from whom the individual may receive" family planning services. The Arizona and Indiana laws violated this provision because the state's exclusion was not based on Planned Parenthood's qualification to provide services - the medical and professional qualifications of Planned Parenthood staff were never questioned, and Planned Parenthood centers are the primary and, in many cases, the only trusted sources of preventive and reproductive care for Medicaid recipients.

Rather, states say they target providers like Planned Parenthood because they provide abortions, and they justified the Medicaid exclusion as necessary to prevent public funding for abortion. But as explained in greater detail in an earlier blog, this is not true. There are already bans in place that prevent federal funds from being used for abortions, except in the case of rape, incest, or threat to mother's life. And many states have similar bans on funding abortions. Rather than limiting funding for abortion, the Arizona and Indiana laws would have prevented Medicaid recipients from accessing non-abortion related services from Planned Parenthood -- services such as gynecological exams, cancer screenings, and prescription contraception.

These laws are simply the latest in a long history of attacks on Planned Parenthood because of its advocacy on behalf of women's reproductive choice, and the attacks will surely continue. But yesterday the Supreme Court denied review of the Ninth Circuit's decision to invalidate the law, effectively preserving Medicaid beneficiaries' access to Planned Parenthood for health care for now.

In 2011, the Supreme Court granted certiorari in the case of Douglas v. Independent Living Center of Southern California (ILC), and Medicaid beneficiaries and providers have been on a roller coaster ride ever since. I have written about the case in earlier blogs, so I won't repeat all of the details here. In short, plaintiffs sued to challenge provider rate cuts in California's Medicaid program (Medi-Cal). Plaintiffs alleged that the rate-setting process violated federal law because state officials enacted the cuts solely in response to budgetary concerns and without considering how they would impact beneficiaries' access. Their concern was that the new rates were so low that providers would flee the Medi-Cal program or refuse to accept new patients, exacerbating an existing shortage of Medi-Cal providers and further jeopardizing health care access.

Plaintiffs won preliminary injunctions in the district court, which were affirmed by the Ninth Circuit. The state appealed, challenging the substantive decision that the cuts violated federal law and claiming that plaintiffs had no right to challenge the cuts in federal court in any event. The Supreme Court granted cert on the latter procedural question -- specifically, whether private plaintiffs could use the Supremacy Clause to challenge cuts in federal court. California officials argued that enforcement of federal rate-setting requirements should rest exclusively with the federal regulatory body charged with Medicaid oversight, the Department of Health and Human Services (HHS).

ILC was viewed as a high-stakes case, implicating providers' and beneficiaries' right to use the federal courts to enforce Medicaid access protections. Because the Supremacy Clause had been used in this way for years, many people were surprised when the Court granted cert on this question. There was speculation that the Court was going to eliminate this right -- a prediction that wasn't too far off since four members of the Court (Chief Justice Roberts, and Justices Scalia, Thomas, and Alito) were ready to do just that.

Surprisingly, a majority of the Court decided not to answer the question. It reframed the issue in light of "changed circumstances" - what changed was that federal regulators had approved the cuts during the course of the litigation. Federal law requires states to submit proposed rate changes to HHS for approval, but when plaintiffs sued initially, HHS had not yet acted. The majority decided that HHS approval may have changed the posture of the case by providing a different legal basis for challenging the cuts. Federal administrative action (like HHS approval of Medicaid rates) is governed by the Administrative Procedure Act (APA), which expressly provides for federal judicial review.

On its face, the decision seemed like a win for plaintiffs. By failing to answer the original question presented, the Court effectively preserved the status quo, which has allowed plaintiffs' to use the supremacy clause to challenge rates prior to HHS approval. After approval, the majority suggested, plaintiffs would be able to challenge rates under the APA.

Yet ILC is being interpreted in a way that significantly weakens this right to judicial review. In dicta, the ILC majority speculated that a decision by HHS to approve the cuts as consistent with federal law "may change" the lower courts' answer about whether the cuts were illegal. The court explained that this is because of the deference ordinarily applied to federal regulatory action. But this was only speculation, because the court never granted cert on the substantive question of how courts should determine if rates violate the law. In fact, the majority admitted that there are reasons why a court should not apply ordinary standards of deference that may apply in the case -- reasons that the Court had not yet had an opportunity to confront because the issue was never briefed.

This did not stop state and federal officials, and some scholars, from seizing on the Court's dicta about deference. They characterized it as a message to lower courts to be very deferential to HHS and proclaimed ILC a win for the states. They predicted that HHS would be a strong legal ally to the states in such disputes and that HHS approval would shield states from future judicial scrutiny into their rate-setting processes. In an earlier blog, I argued that this was not a foregone conclusion from ILC; but, to my surprise, the states' predictions seem to be coming true.

Continue reading "After ILC: Troubling Implications for Medicaid Access" »

Last week the Supreme Court decided not to hear the case of Planned Parenthood of Indiana Inc. v. Commissioner of the Indiana State Department of Health. The case involved state control over federal funding and Indiana's use of this power to defund Planned Parenthood. Planned Parenthood has been the target of attacks by federal and state legislators for years, but this case reflects the most recent wave of state attempts to defund Planned Parenthood, presumably because of a concern about such funding being used to subsidize abortion.

I say "presumably" because some of these state laws, like the Indiana ban being challenged in this case, exempt hospital and ambulatory surgical centers that provide abortions, and abortion services make up only a very small percentage of the services Planned Parenthood offers. In fact, despite the anti-abortion rhetoric often used by states to justify attacks on Planned Parenthood, the reality is that depriving it of federal funding jeopardizes a wide range of other reproductive and preventive health care on which patients depend, including access to the prescription contraception that helps prevent unwanted pregnancies. Finally, as I've noted in other blogs, these state defunding attempts threaten funds that by law cannot be used for abortion, and some of the Planned Parenthood facilities affected do not even perform abortions.

The Indiana law in this case would have made Planned Parenthood ineligible for participation in Medicaid (funded jointly by the federal government and states) and the Disease Intervention Services (DIS) program (entirely federally funded, but administered by states). The Supreme Court's refusal to hear the case is both good news and bad.

The good news is that this denial lets stand a ruling by the Seventh Circuit that Planned Parenthood's exclusion from Medicaid would violate federal law, which means Medicaid funding is safe for now. This is considered a very important win for Planned Parenthood patients because of the importance of Medicaid funding for health care access and because of the signal it sends to other states.

But this latest development only lets patients breathe a partial sigh of relief. The Seventh Circuit also ruled that Indiana probably could bar Planned Parenthood from receiving grants under the DIS program, which means that threats to reproductive and sexual health care services provided by Planned Parenthood remain.

Continue reading "Medicaid Funding for Planned Parenthood is Safe, But Threats to Reproductive and Sexual Health Care Continue" »

Since election night people have been preoccupied with what the post-election polling reveals about America's electorate, particularly its shifting values and priorities and what this will mean for future elections. A recurring theme among commentators is that growing diversity played an important role for Democratic wins in the Presidential and Congressional races. According to a report by the Pew Research Center, Obama received the support of African Americans, Latinos, and Asian Americans by a wide margin. Women also played a prominent role in this election: they not only supported Obama by a wide margin, but were also instrumental in Democratic wins in the House and Senate. And a Gallup survey showed that voters who identify as gay, lesbian, or bisexual overwhelmingly supported President Obama.

Commentators also point to growing support for important "social" issues like marriage equality and abortion as further evidence of a cultural shift toward a more liberal electorate that is more likely to vote Democratic. For example, while abortion continues to be a divisive issue, exit polling by Fox news showed that 59% percent of those polled believe abortion should be legal in all or most cases, and a Pew Research Center poll showed that Democrats hold a significant advantage when voters are asked who would do a better job representing their interests in this area. The same polls also show more people support same sex marriage than are against it (support ranges from 51% - 49% depending on the poll), and this growing support was reflected in the wins for marriage equality in Maryland, Maine and Washington.

It should go without saying that no group (whether defined by race, gender, or orientation) is monolithic in its values or voting preferences, and individual voters care about a range of issues, and to different degrees, in ways that may not always be easily predictive of one's votes. Nonetheless, politicians, campaign advisers, and political pundits are paying a lot of attention to these trends and asking why these diverse groups' interests have converged to support Democrats this year. One of the best explanations of this convergence that I have read so far was an op-ed titled The Culture War and the Jobs Crisis in the New York Times, by Thomas Edsall:

"More recently, there has been a steady diminution of conflict and a growing consensus on the left culminating in the 2008 and 2012 election victories. Issues now linked – clustered — in the minds of many Democratic voters include not only traditional socio-cultural, moral and racial issues like women’s, minority and gay rights, abortion and contraception, non-marital child-bearing, and the obligation of government to provide a safety net, but also to matters pertaining to the overarching role of government in generating greater social justice. "

I agree that concern about social justice and an appreciation for the government's role in ensuring a more just system is a common thread for these otherwise diverse groups. And I think that the most salient issue this election season that highlights this shared interest is health reform. Health care is an area where "socio-cultural" issues, like discrimination against women, racial and ethnic minorities, gay men and lesbians, and people with disabilities, can have the most tangible, immediate, and devastating effects on one's life. These groups have historically been, and are currently still at high risk of discrimination in a variety of ways. As a result, they are also at greater risk of exclusion from, or discrimination in, a private health care market that is linked to employment, and thus more likely to need government protection or to rely on the public safety net.

Continue reading "Election Results Through a Health Care Lens" »

Guest Post by Marni von Wilpert, Skadden Legal Fellow for the Mississippi Center for Justice

This year marks the 30th anniversary of the first diagnosis of HIV/AIDS, and this week is the first time the United States is opening its doors to host the International AIDS Conference in over two decades, as President Obama finally lifted the 22-year ban that prohibited travel visas for HIV-positive visitors to the United States. While HIV is a global issue, the United States itself has over one million people living with HIV/AIDS, with another 50,000 new infections every year. But on the eve of this multinational conference that is expected to draw over 20,000 participants, there was a much smaller and highly specialized conference held in Washington D.C. this past weekend. The participants were attorneys, and the topic of the day was the legal rights of people living with HIV/AIDS.

This HIV Law and Practice conference, sponsored by the American Bar Association (ABA), is a national gathering of attorneys who all strive to combat the illegal discrimination against people living with HIV/AIDS. In fact, the Centers for Disease Control and Prevention (CDC) recommend consultation with an attorney as part of a general medical treatment program for patients who are newly diagnosed with HIV (known by advocates as the HIV Legal Checkup). Never in its history has the CDC recommended legal services for any particular disease or illness. Accordingly, legal services centers, law firms and pro bono attorneys around the country are working to assist people who face employment discrimination, housing discrimination, and breaches of confidentiality all due to a person's HIV positive status.

One of the primary topics discussed at the ABA Conference was how the Affordable Care Act (ACA) will improve access to healthcare for people living with HIV/AIDS. By prohibiting preexisting condition restrictions for health insurance coverage, the ACA will ensure a person's HIV-positive status can no longer be used by health insurance companies to restrict coverage. The ACA also abolishes lifetime or annual caps on healthcare coverage, which will benefit patients who often require complicated treatment regimens to treat advanced AIDS diagnoses. Speakers such as Julie Scofield, the Executive Director of the National Alliance of State and Territorial AIDS Directors, explained the importance of the Medicaid expansion provision of the ACA and its ability to extend medical treatment to thousands of people living with HIV/AIDS.

Continue reading "The Lawyer's Role in the HIV/AIDS Care Puzzle" »

For an update on the Supreme Court's Decision today, check out my blog post at Loyola's Summary Judgments Blog: http://llsblog.lls.edu/faculty/

To learn what's at stake in the case, see the following article by Jose Martinez, The Affordable Care Act: What's the Basis of the Supreme Court Case?

For commentary on the arguments regarding the constitutionality of the individual mandate, see David G. Savage and Noam N. Levey's article, Supreme Court Greets Healthcare Mandate with Skepticism .

For different views on how the Court received arguments concerning the constitutionality of the Medicaid expansion, see
- NHeLP Press Release, Supreme Court Concludes Oral Arguments on Health Reform, Justices Cast Doubt on Claims that Medicaid Expansion is Coercive.
- David G. Savage and Noam N. Levey's article, Justices Suggest Medicaid Expansion is Unconstitutional.

Today the Supreme Court begins to hear arguments about the constitutionality of the Affordable Care Act, and the arguments will occur over three days. The Court will consider four key questions:

(1) Whether the individual mandate is constitutional;
(2) If it is found unconstitutional, whether the entire Act must be struck down with the mandate, or only the provisions that seem linked to the mandate (such as the guarantee issue and ban on preexisting condition limits);
(3) Whether the Court should even hear this challenge now, or must wait until after the mandate actually goes into effect in 2014 and leads to some concrete financial harm (like someone being forced to purchase insurance or paying a fine); and
(4) Whether the Medicaid expansion to all adults who meet the income eligibiity limits is valid.

For a nice overview of the issues and timeline of the arguments this week, you should read A Guide to the Supreme Court Challenges to Obama's Health Care Law in the New York Times. For a more in-depth discussion of the legal issues presented, you can also check out my previous blog posts:

Continue reading "Supreme Court Hears Health Reform Arguments This Week" »

Last week, the U.S. Supreme Court issued an odd decision in the case of Douglas v. Independent Living Center. Douglas is the consolidation of three suits challenging cuts in California's Medicaid (Medi-Cal) reimbursement for a wide range of health care services. The Ninth Circuit affirmed lower court decisions halting the cuts because they were found to violate a provision of the Medicaid Act that requires rates be sufficient to ensure equal access to quality care. This provision, 42 USC 1396a(a)(30(A), is commonly known as the "Equal Access" or "30A" Requirement. The Supreme Court did not take up the issue of whether the cuts actually violated this requirement.

The Court only granted cert to decide whether patients and providers had a right to challenge such cuts in federal court using the Supremacy Clause, a Constitutional provision that essentially says federal law preempts conflicting state law. The problem is that the Court never answers this question. In a five-to-four decision, the Court reframed the question and remanded it back to the Ninth Circuit for briefing by the parties because during litigation the rates were approved by CMS (Centers for Medicare and Medicaid Services), the agency charged with administering Medicaid. The revised question is whether private citizens can use the Supremacy Clause to challenge state cuts after CMS has approved them.

As Professor Tim Jost has already commented, the practical effect of delaying the decision is a win for plaintiffs because it preserves their right to sue, for now. The majority declined to follow the dissent's approach, which would have held that the Supremacy Clause cannot be used regardless of CMS approval. Despite this apparent win for plaintiffs, some view the majority's opinion as foreshadowing a more favorable rule for states. According to KPCC news, for example, Governor Brown characterized the decision as giving states leeway in rate setting and said the court gave the Ninth Circuit "clear instructions that are very favorable to the state's position." And in Professor Kevin Outterson's recent blog, he predicts that on remand the Ninth Circuit will defer to CMS and find no violation of the Supremacy Clause - he says "it won't even be a close decision."

While I agree that language in the majority's opinion provides some evidence of a more favorable approach for states, I disagree that the Douglas decision clearly favors the states or demands unqualified deference to CMS in the future. Rather than clarifying questions about future payment challenges, Douglas raises a new and more challenging question about the level of review required and how courts decide when deference to federal approval is warranted. In fact, three recent decisions from a California district court highlight this question, and are probably a better predictor of what the Ninth Circuit will do on remand. In each case, the court temporarily enjoined Medi-Cal cuts despite CMS approval. Far from resulting in a slam dunk win for states, the court refused to defer to CMS's approval because of serious defects in the state's rate-setting process that made it look arbitrary and capricious, and because CMS's own inconsistency and approval of such a defective process did not warrant the kind of deference typically required for agency action.

Continue reading "The (In)Decision of Douglas v. ILC: The Relevance of CMS Approval in Challenges to Medicaid Payment Cuts" »

Previous entries...

HHS Touts its Commitment to Medicaid Access, But Latest Payment Suits Raise Doubts Feb 9, 2012
Supreme Court Will Hear Challenge to Health Reform Nov 15, 2011
Health Reform Update Nov 10, 2011
In the News: More Young Adults Insured Since Health Law Took Effect Sep 26, 2011
Fourth Circuit Dismisses Health Reform Challenges, But is the First Court to Adopt HHS's View of the Mandate as a "Tax" Sep 9, 2011
Why Racial Impact Statements Should be Required for Medicaid Policy Decisions Aug 31, 2011
Health Reform Update Aug 24, 2011
Another Court Prevents State Attempt to Defund Planned Parenthood Aug 12, 2011
Federal Court Halts Indiana's Defunding of Planned Parenthood Jul 25, 2011
Obama Undermines Health Reform Goals by Urging the Supreme Court to Eliminate Legal Rights for Medicaid Beneficiaries & Providers Jul 23, 2011


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