The first issue, and the one that has received the most attention so far, is whether the individual mandate is a constitutional exercise of Congress' power to regulate interstate commerce or to tax and spend for the general welfare. When the mandate goes into effect in 2014, it will require individuals to purchase insurance, unless they qualify for an exemption. This mandate raises a novel and important question about the scope of the government's power to require individuals to purchase a service from a private entity. So far two appellate courts (the Sixth and DC Circuits) have upheld the mandate based on Congress' power to regulate commerce, while the Eleventh Circuit held the mandate unconstitutional. For more on the constitutionality of the individual mandate, click here.

The second issue concerns the fate of the broader health reform law in the event that the mandate is held unconstitutional, and this turns on the question of whether the mandate is severable from the rest of the law. If the mandate is severable, this leaves the rest of the law intact - this was the conclusion reached by the Eleventh Circuit in Florida v. HHS, the decision accepted for review by the Supreme Court. If the mandate is not severable, then the entire Affordable Care Act could fall with the mandate - the conclusion reached by a Florida District Court, before it was reversed by the Eleventh Circuit on appeal. For a more in-depth discussion of the severability of the individual mandate, click here.

The most surprising issue taken up by the Supreme Court is whether the Medicaid expansion is constitutional. Expanding public health insurance is a critical part of the Affordable Care Act, but it has not received nearly as much attention as the private insurance reforms. Historically, Medicaid has required coverage for only certain categories of people - pregnant women, children, people with disabilities, and low-income Medicare beneficiaries. The Act expands Medicaid eligibility criteria to include all adults with income up to 133% of the federal poverty level. It is surprising that the Supreme Court will consider the constitutionality of this expansion because it is clear that Congress can condition the receipt of federal funding on state compliance with federal law, as long as those conditions bear a reasonable relationship to the purpose of the spending. Eligibility criteria are precisely the kind of funding conditions that have been in place since Medicaid's enactment and they are necessary for achieving the federal goal of increasing health care access for those in need. Challengers claim that expanded eligibility creates new state requirements that are coercive and usurp state sovereignty, but such claims typically fail in the case of voluntary programs like Medicaid (states can choose to opt out) and so far no court has found the expansion unconstitutional. For more on why a legal challenge to the Medicaid expansion is likely to fail, click here.

For a copy of the petitions filed seeking Supreme Court review of the health reform law, click here. For a copy of the order listing the cases and arguments accepted for review, click here.

According to Campbell, however, Pennsylvania used this gatekeeping function to prevent new construction in order to curb costs; community need was not considered. In fact, Pennsylvania's actions undermined access to nursing home care for its most vulnerable residents because it "exacerbated financial incentives, already existent in the state's Medicaid reimbursement system, for nursing home operators to seek out a greater share of private-paying customers." Private insurance was more desirable because it typically provided higher reimbursement and Medicaid coverage would kick in after the private insurance ran out. Nursing homes actively sought private pay patients by moving to the affluent suburbs, which had a much larger percentage of white residents over age sixty-five. Thus, Pennsylvania's moratorium had different effects for different communities: Philadelphia, which had a substantial non-white population over age sixty-five, experienced a significant loss in nursing home beds (806); by contrast, the three most affluent counties in suburban Philadelphia which had much higher percentages of white residents over sixty-five (96.4%, 94%, and 98.3%) experienced increases in bed supply (84, 54,and 40 beds, respectively).

In his paper, Campbell considers two other examples of policies that seem to have a disproportionate racial impact: Pennsylvania's implementation of a program designed to fund non-institutional long-term care alternatives to nursing home care for the elderly under Medicaid (the "PDA Waiver" program), and its decision to extend Medicaid coverage to children under age 18 with severe disabilities whose parents' income was too high to otherwise qualify for coverage through the federal disability program, Supplemental Security Income (SSI) program. Such policies clearly look beneficial on their face: health and disability advocates have long pushed for states to fund community-based care that helps people avoid institutionalization, and flexibility with respect to income limits that help children with disabilities get needed care is certainly good health policy. Campbell does not question the value of such coverage.

Campbell's examination of the way Pennsylvania has implemented these programs, and specifically the discretion Pennsylvania uses to determine eligibility requirements for each, does show that its policies may foster racial disparity in terms of access to services and the allocation of public funding. Campbell shows how, in each case, the state has made decisions that either indirectly resulted in a reallocation of services to disproportionately white communities, or a far greater expenditure of resources for programs that have primarily benefitted white residents. Campbell does not suggest that such policies are driven by intentional discrimination; rather he argues that such disparate effects should not be ignored by states.

Campbell points out that his proposal is consistent with recommendations made in the 2003 National Institute of Medicine (IOM) Report, Unequal Treatment: Confronting Racial and Ethnic Disparities in Health Care. This report detailed significant racial and ethnic disparities in health care access and outcomes, even when such groups were insured. One of the IOM's recommendations was "to structure payment systems to ensure an adequate supply of services to minority patients, and limit provider incentives that may promote disparities." Despite the federal government's apparent recognition of the problem, the U.S. Department of Health and Human Services (HHS) has not used its power to address this problem in a meaningful way.

Finally, Campbell joins a number of legal scholars and health advocates in criticizing our existing regulatory system as ineffective at policing health disparities caused by funding decisions. Federal law prohibits discriminatory funding and health policy decisions: Title VI of the Civil Rights Act prohibits discrimination by recipients of federal funding, and regulations promulgated by the U.S. Department of Health, Education, & Welfare (HHS's predecessor) make clear that this prohibits the use of criteria or methods, or even the choice of site locations that have a discriminatory effect. The regulatory agency charged with Title VI enforcement, the Office of Civil Rights, has never had the resources, information, or power necessary to uncover or prevent state discriminatory policies. States have a legal duty to comply with federal antidiscrimination law, but neither the federal government nor states have a process in place to ensure compliance. Requiring states to provide a racial impact statement of proposed changes that impact Medicaid beneficiaries -- such as changes in rate-setting, funding cuts, and elibility criteria -- would be a critical step toward meaningful enforcement of Title VI and the development of health policies that reduce, rather than foster, racial disparity.

The Kansas case is significant because it went even further. It held that by targeting Planned Parenthood for exclusion because of its association with abortion, the state law created an "unconstitutional condition" on public funding that violated the First and Fourteenth Amendments. In this way, the court highlighted the real problem with state defunding attempts: it isn't simply about states getting carried away legislatively in ways the conflict with federal law; rather it is about states deliberately using their administrative power to punish not only providers that perform abortions, but those who actively seek to promote women's access to this kind of health care.

Kansas recently enacted legislation that effectively precluded Planned Parenthood from applying for Title X funds administered through the state. Title X is a federal program that has funded low-cost family planning services for low-income and uninsured women and families since 1970. The Kansas Department of Health and Environment (KDHE), the state agency that was awarded the federal grant in this case, is responsible for doling out Title X funds to providers of family planning services. KDHE has relied on Planned Parenthood as a Title X grantee for over 25 years. In fact, just last year, KDHE submitted an application requesting Title X funds as part of a 5-year grant, and in its grant application it represented that Planned Parenthood's Wichita and Hays health centers would be two of its subgrantees and that they received that largest amount of Title X funding distributed (about 13%). Notably, KDHE also touted Planned Parenthood's special Family Planning Male Involvement Information and Education Project to more fully involve males in reproductive health and pregnancy planning - a Title X program priority.

Despite these representations and KDHE's recognition of Planned Parenthood's important family planning services, the Kansas law, which took effect July 1, 2011, makes Planned Parenthood ineligible for Title X funds. Specifically, the law prioritizes funding to "government entities" (like state, county or local health clinics or departments) and to "hospitals or federally qualified health centers" that "provide comprehensive primary and preventative care in addition to family planning services." Under this law, Planned Parenthood is effectively precluded from even applying for Title X funds.

Violation of the Supremacy Clause

This case is very similar to the recent Indiana case, as well as to prior cases in which Title X exclusions have been found invalid under the Supremacy Clause in Article VI of the U.S. Constitution. The Supremacy Clause provides that all laws and treaties made by the federal government shall be the supreme law of the land; in other words, federal law trumps conflicting state law. There has not yet been a full hearing on the merits, but the court found that plaintiffs will likely succeed in proving a violation because requiring that a provider of family services be a government entity, hospital, or FQHC, added eligibility criteria for federal funding that conflicted with federal law. Title X specifically provides that "any entity" may apply for a Title X grant, and a number of courts have already held that a state law which excludes providers who would otherwise be eligible under federal law "is inconsistent with Title X's broad application" and "would seriously undermine and obstruct Congress' intent."

Unconstitutional Condition in Violation of the First & Fourteenth Amendments

Unlike the Indiana case, the Kansas court did not stop there. It also agreed with Planned Parenthood's claim that the state exclusion was an unconstitutional attempt to punish it for its support of abortion rights and its association with abortion services providers in violation of the First and Fourteenth Amendments. One of the state's defenses to this claim was that the law does not target Planned Parenthood on its face nor does it mention abortion; the law appears to simply exclude a certain category of provider - nonpublic entities that are not hospitals or FQHCs - from eligibility. The court quickly dismissed this, however, based on the legislative statements and activity surrounding the exclusion. It was clear from this evidence that the purpose of the law was to deprive Planned Parenthood of funding because of its association (or perceived association with abortion services). State Representative Lance Kinzer, who offered the amendment containing the exclusion, made this purpose clear to other legislators before the vote, and then in a press release and announcement on his facebook page immediately after the vote: "Delighted to announce that the KS House just approved my floor amendment to deny Title X funding to Planned Parenthood for the balance of FY 2011. The vote was 91-26, a great victory on the first pro-life floor vote of the season."

Indeed, proponents of the recent wave of state defunding attempts consistently claim that they are trying to prevent public funding from being used for abortion; however this justification was also rejected by the court because this is not what the state laws do. First, federal law (like Title X) and many states already prohibit public funding for abortion. Second, in this case, neither of the two Planned Parenthood facilities harmed by the exclusion even provided abortion services. Although one of their affiliates does, it is located in a different area of Kansas - financially and physically separate from the Planned Parenthood recipients of Title X. The affiliate that provides abortion services receives no Title X funds; it was entirely financed by private funds so no Title X funds can be used for abortions. Finally, current and prior laws that have excluded Planned Parenthood from public funding typically have exceptions for other kinds of providers (like hospitals and managed care plans) despite the fact that they may be providing abortions. No evidence has been offered to show a greater risk of commingling by Planned Parenthood than these other providers that would justify such differential treatment.

In fact, the Kansas law looks more like an attempt to punish Planned Parenthood by excluding it from any chance of receiving federal funding because of its association with abortion and promotion of abortion rights, and thus looks like an unconstitutional condition on the receipt of federal funds. The Supreme Court has made a critical distinction between government's refusal to fund a particular activity, which is constitutional, and its attempt to "penalize" someone for exercising a constitutional right, which is not. For example, in 1980 in Harris v. McRae, the Supreme Court upheld the Hyde Amendment, a federal law prohibiting funding for abortions except where life-threatening. In finding the funding limitation constitutional, the Court cautioned that "[a] substantial constitutional question would arise if Congress had attempted to withhold all Medicaid benefits from an otherwise eligible candidate simply because that candidate had exercised her constitutionally protected freedom to terminate her pregnancy by abortion." This kind of "broad disqualification from receipt of public benefits" looks more like an unconstitutional "penalty" for protected conduct.

Eleven years later, in Rust v. Sullivan, the Supreme Court made a similar distinction when it upheld regulations implementing Title X's prohibition on federal funds for abortion services. The regulations defined what kinds of activities were impermissible under Title X, and they required that recipients of Title X funding who performed abortions must create physical and financial separation between these prohibited activities and activities allowed under Title X. Essentially, the regulations created guidelines to prevent commingling of funds, guidelines with which the Planned Parenthood facilities under attack today have complied. Notably, though upholding these provisions, the Supreme Court drew a signficant distinction between this kind of legitimate restriction on the funding of certain activities and an unconstitutional penalty on those who otherwise engage in protected activity with private funds:

"[H]ere the Government is not denying a benefit to anyone, but is instead simply insisting that public funds be spent for the purposes for which they were authorized. The Secretary's regulations do not force the Title X grantee to give up abortion-related speech; they merely require that the grantee keep such activities separate and distinct from Title X activities. Title X expressly distinguishes between a Title X grantee and a Title X project. The grantee, which normally is a health-care organization, may receive funds from a variety of sources for a variety of purposes. The regulations govern the scope of the Title X project's activities, and leave the grantee unfettered in its other activities. The Title X grantee can continue to perform abortions, provide abortion-related services, and engage in abortion advocacy; it simply is required to keep them separate and independent from the project that receives Title X funds."

The court expressly acknowledged that this freedom to engage in protected activities with non-Title X funding is what makes this different from the "unconstitutional conditions" cases "in which the "Government has placed a condition on the recipient of the subsidy rather than on a particular program or services, thus effectively prohibiting the recipient from engaging in the protected conduct outside the scope of the federally funded program." The broad disqualification of Planned Parenthood from federal funding because of its association with abortion is one of the most compelling examples of such an unconstitutional condition.

* * *
For more on the Indiana case and the Supremacy clause claim, click here for my recent blog post. For more on state legislative activity that is threatening reproductive health generally, go to the National Women's Law Center website on Health Care and Reproductive Rights.

In May of this year, Indiana enacted a law prohibiting the state from contracting with entities that perform abortions, but it exempted hospitals and ambulatory surgical centers. Effectively, this meant that the state could exclude Planned Parenthood of Indiana (PPIN) from participating in its Medicaid program, as well as prevent it from receiving other grants administered through the state, such as the Disease Intervention Services grant funded entirely by federal money. A number of plaintiffs, including PPIN, Medicaid beneficiaries, and individual health care providers, challenged the law in Planned Parenthood of Indiana (PPIN) v. Commissioner of Indiana State Department of Health. In June, a federal district court judge enjoined the state from implementing the law, holding that the exclusion from both programs violated federal law. A full hearing on the merits has not occured yet, but the plaintiffs won the preliminary injunction because they were able to prove a likelihood of winning on the merits, a lack of adequate remedy at law, and future irreparable harm if the injunction were not granted. The plaintiffs challenged the exclusions on several grounds, but the court's decision turned on plaintiffs' claim that the Indiana law conflicted with express federal spending conditions that regulated each program, and thus was preempted under the Supremacy Clause of the U.S. Constitution.

Medicaid is a joint federal-state program created to provide health care coverage for the very poor and disabled. Although the program is voluntary for states, every state participates in order to get significant federal funding. As a condition of this funding, states must agree to abide by certain program requirements and beneficiary protections set forth in the federal Medicaid Act. The particular provision at issue in this case is the "freedom of choice" provision (42 U.S.C. Section 1396a(a)(23)); it requires states to ensure that "any individual eligible for medical assistance ... may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services required ... who undertakes to provide him such services...." Plaintiffs alleged that Indiana's law excluding PPIN would violate this "freedom of choice" provision by preventing many Medicaid beneficiaries from getting their preventive and other reproductive health services from PPIN, their provider of choice.

The Indiana commissioner argued that this exclusion did not conflict with federal law by pointing to another provision in the Medicaid Act that expressly permits states to exclude providers from the Medicaid program (42 U.S.C. 1396a(p)(1)); this provision says that "in addition to any other authority, a State may exclude any individual or entity [from Medicaid participation] for any reason for which [the federal government] could exclude the individual or entity." In other words, the commissioner argued, states have unfettered authority to exclude providers for any reason as long as it is pursuant to state law, and the recently enacted law deeming providers of abortion services as "unqualified" to participate in the Medicaid program provided this authority.

Thus, the court's decision turned on its reconciliation of these two seemingly inconsistent provisions within the Medicaid Act: the freedom of choice provision for beneficiaries and the apparently broad exclusion authority granted to states. Although the court acknowledged that states have a great deal of discretion in deciding how to structure and administer Medicaid plans, it also noted that this discretion is limited by other statutory protections. The court rejected the state's interpretation that state law is the only check on its power to exclude because this would implicitly render other beneficiary protections in the Medicaid Act, such as the "freedom of choice" provision, essentially meaningless.

The court looked to federal legislative history for guidance in reconciling the two provisions and found that the provision allowing state exclusion of providers was motivated by concerns of protecting the program from fraud and abuse, and protecting beneficiaries from incompetent or inadequate providers. Given the fact that states are the primary regulators of health care quality and essential partners in policing fraud and abuse, it makes sense that state law would be viewed as an important tool for enforcing these protections. Under this interpretation, the fact that PPIN also provided abortions did not make it "unqualified" or a danger to beneficiaries. Moreover, nothing in the legislative history suggested that this provision could be used to regulate the scope of services a provider offers. The court noted that this narrower interpretation of states' exclusion power is more consistent with prior interpretations by the Supreme Court "as giving Medicaid recipients the right to choose among a range of qualified providers, without government interference."

Finally, the court pointed to the fact that the federal regulatory agency charged with Medicaid oversight - the U.S. Department of Health and Human Services (HHS) - denied the state plan amendment submitted by Indiana that contained the defunding provisions. HHS concluded that PPIN's exclusion would violate the "freedom of choice" provision and would negatively impact access to family planning services, which receive special protection in Medicaid. The Medicaid Act requires HHS approval for any significant changes in state plans to ensure compliance with federal law, and therefore it is a critical check on state abuse of discretion. In denying Indiana's amendment, HHS has made clear that it would not allow Medicaid defunding to be used as an ideological weapon against health care providers who provide abortions. In fact, on June 1 of this year, HHS issued an information bulletin for all states to this effect.

Exclusion from the Disease Intervention Services (DIS) Program

The court held that PPIN's exclusion from the DIS program also conflicted with federal law. DIS is entirely federally funded, and the federal government has created a comprehensive funding and eligibility scheme for this program. The law does not authorize states to create additional eligibility criteria, and the court found that the state's attempt to create additional eligibility criteria without federal authorization violates federal law. The court said that its finding that the state law was preempted was consistent with a number of other cases in which state laws that excluded providers from participation in federal programs who would otherwise be eligible under federal law were found invalid under the Supremacy Clause.

Lack of Adequate Remedy at Law & Irreparable Harm

With respect to each exclusion above, the court found that the potential harm to PPIN, the women it served, and Medicaid beneficiaries in Indiana generally would be irreparable and warranted protection. The court also suggested that this harm was not justified by proponents' claims of trying to prevent funding for abortion, especially because federal law already prohibited this. The reality is that only a very small percentage of Planned Parenthood's services involve abortion (around 3%), and these services are paid for through private funding sources only. The overwhelming majority of Planned Parenthood services involve comprehensive reproductive and other preventive health care, such as family planning and birth control, cervical smears, cancer screening, sexually transmitted disease testing, and self-examination instructions. These services help low-income women prevent serious illness, learn healthy behavior, and prevent unwanted pregnancies that often lead to abortion. Defunding PPIN would jeopardize access to these services for the 76,000 patients it serves.

Politically, Obama has been criticized for his willingness to accept Medicaid cuts as part of a deal with Republicans to raise the debt ceiling. In order to see how such cuts threaten access, one need only look at recent headlines about the number of states already struggling to balance their budgets, in part through deep cuts to Medicaid programs and provider reimbursement. Cuts that result in the elimination of an entire service category are clearly problematic, but access is also threatened when Medicaid reimbursement becomes so low that providers refuse to accept Medicaid beneficiaries, or to work in emergency rooms in underserved communities that have disproportionate numbers of Medicaid patients. A common complaint by Medicaid beneficiaries is their inability to find a provider willing to accept them.

These cuts have legal implications as well. (Previously I have blogged about the legal implications of this problem in California). States have a lot of discretion in how they run Medicaid, especially with respect to setting provider reimbursement, but this discretion is not absolute. States must comply with a number of conditions of federal funding, and one of the most important mandates, found at 42 U.S.C. Section 1396a(a)(30)(A), is commonly referred to as the "Equal Access Provision" or "30A" requirement. This provision requires states to "assure that provider payments are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers so that care and services are available to the general population in the geographic area.” States cannot honestly and reasonably make such assurances without doing some kind of analysis to assess the impact that rates have on access; yet many states do nothing before implementing rate cuts. They cut provider rates solely in response to fiscal concerns, and without any consideration of access.

Since the 1970s, Medicaid beneficiaries and providers have brought suits in federal court challenging these kinds of illegal cuts. While these suits have yielded mixed success for plaintiffs, federal courts have halted or delayed cuts in many cases, especially where the violation was egregious. These suits have been an important legal check on state violations that implicate Medicaid access, but beneficiaries and providers may soon lose this tool. As I described in an earlier blog post, the Supreme Court has granted cert in Independent Living Center v. David Maxwell-Jolly , a case that calls this right into question.

Despite Obama's promise to expand Medicaid access, his administration has taken a step that would make it much more difficult to prevent illegal cuts that threaten access: the U.S. Department of Health and Human Services (HHS) has filed an amicus brief in the Independent Living Center case urging the Supreme Court to hold that Medicaid providers and beneficiaries do not have a legal right to sue in federal court to prevent illegal state cuts. Why would a President who fought so hard for health care reform undermine one of the most important legal tools that exist for protecting Medicaid access?

Rather, the crux of HHS's position is that state violations of Medicaid program requirements, like the Equal Access Provision, are different: even if a state law violates this provision, it should be up to the federal government (through HHS), and not individual beneficiaries or providers, to enforce the law. Most of HHS's brief is devoted to justifying this different treatment.

First, the brief highlights the fact that Medicaid is a cooperative program, and argues that program requirements like the Equal Access Provision look more like contract conditions between the federal government and states, as opposed to specific rights created for Medicaid beneficiaries or providers. Based on this model, the Obama administration believes it should be up to HHS (as the other party to the contract) to enforce these funding conditions. Indeed, the Medicaid statute grants authority to HHS to do just that: States must submit state plans and state plan amendments proposing significant changes (like payment cuts) to HHS, and HHS has authority to review and then approve or reject the state plan. Implicitly, Obama is asking us to trust HHS to police the states.

Second, it argues that HHS enforcement, rather than private enforcement through the federal courts, will be a better and fairer approach for states. Specifically, HHS highlights the fact that it, and not federal courts, has the expertise to make health policy decisions and review state rate methodology, given the complexity of the Medicaid statute and the multiple and potentially conflicting goals (access, quality, economy, efficiency) that states must balance in rate setting. HHS also expressed concern about the inconsistency in approaches taken by different federal courts with respect to 30A challenges, and the uncertainty this can create for states trying to deal with difficult and pressing budgetary needs. HHS and states are concerned that such uncertainty can be used by individuals to challenge state decisions that they simply do not like.

Although these arguments reflect important concerns, they do not justify eliminating such an important legal check on illegal state action. First, the concern about inconsistent approaches being applied by federal courts is most significant when there is evidence that courts (and thus individuals) are allowed to second-guess the expertise and value judgments of state and federal health officials with respect to decisions that are purposely left to agency discretion. But the reality is that this is not typically what is happening in these cases. I am currently in the process of reviewing Medicaid payment suits from the 1970s to the present, and so far the overwhelming number of challenges I have reviewed are based on some egregious lack of action or utter failure to use any process to determine access before making 30A assurances. Moreover, I would say there is more consistency than inconsistency in federal courts' approaches: they have consistently held that the Medicaid Act prohibits cuts made for exclusively budgetary reasons, and they tend to step in only in these kind of egregious cases. On the other hand, courts tend to be very deferential to state decisions that are based on some kind of analysis.

I don't mean to suggest that there is no inconsistency - there is. I have described the different approaches federal courts have taken elsewhere. But to the extent inconsistency does exist, there is a much easier and less radical fix: HHS can simply promulgate regulations that provide greater guidance for states and the federal courts that hear such challenges. States have asked for such guidance; federal courts are typically very deferential to federal regulations; and HHS has just recently issued a proposed rule to give states better guidance for compliance. This approach would answer the legitimate concerns that HHS and states have about consistency and certainty, while preserving beneficiaries' and providers' rights to sue to prevent blatantly illegal action that threatens health care access.

This brings me to the third and final reason why the Obama administration's concerns do not justify eliminating access to the courts. To the extent that there is inconsistency and uncertainty with respect to 30A requirements, HHS is to blame. The primary reason for state violations and inconsistent approaches by federal courts, is the lack of regulatory guidance by HHS. It is hard to trust HHS to police states given its long history of passivity and its own deliberate disregard of Equal Access protections. A review of challenges to Medicaid payment cuts nationwide and as far back as the 1970s reveals that HHS has been largely absent in these disputes. Private enforcement is important precisely because of a lack of meaningful federal oversight.

To be fair, under President Obama HHS has been more vigilant and active than it has in a long time. Since 2008 HHS has done more searching inquiries before approving requests for rate cuts. Moreover, as noted above, for the first time HHS proposed a regulatory framework for states to help ensure their compliance with the Equal Access Provision. But the enforcement power of an agency depends on the political will and agenda of the Executive, and Obama will not be in office forever. Even under Obama, it is not clear how meaningful this new regulatory guidance for states will be in its final form or in practice. For example, HHS repeatedly emphasizes state discretion and flexibility in its proposed rule on 30A compliance, and it expressly resists establishing a uniform standard for measuring access. Moreover, HHS says it has only rejected two state requests for rate cuts based on access concerns despite finding pervasive examples of state noncompliance. For example, it notes that despite state assurances that cuts would have no impact on access, "only a few States indicated that they relied upon actual data to make the determination," and of those using data "most did not ask the right questions" to determine impact on access. The jury is definitely still out on whether we will be able to trust HHS to effectively police the states in the future.

Federal courts have no desire to become Medicaid administrators or second-guess health officials' judgment. But when government agencies abdicate their clear statutory mandates and oversight duties in ways that harm polticially and economically vulnerable people, this is when access to federal courts is critical. Illegal payment cuts that threaten access to vulnerable populations is due to precisely the kind of regulatory void and pubic law failure that demands federal court intervention. It is perverse for the HHS to use the inconsistency that has resulted from its own regulatory failures to justify barring Medicaid beneficiaries' and providers' from seeking relief in federal court.

The Obama administration wants to eliminate this judicial last resort, even as it entertains significant federal funding cuts to Medicaid that will surely exacerbate states’ existing budget crises by shifting more of the cost of Medicaid to states. Together, the loss of federal funding and enforcement rights will almost certainly result in more illegal Medicaid cuts that undermine health care access. The Affordable Care Act may have been an important step forward, but in the latest political and legal battle surrounding Medicaid cuts, Obama has taken two unfortunate steps backwards.

For more about ILC v. Maxwell-Jolly, the case that will be heard by the Supreme Court next term, click here. To get copies of the lower court opinions and amicus briefs filed in the case, click here.

- a fuller range of contraceptive education, counseling, methods, and services so that women can better avoid unwanted pregnancies and space their pregnancies to promote optimal birth outcomes;

- improved screening for cervical cancer, counseling for sexually transmitted infections, and counseling and screening for HIV;

- services for pregnant women including screening for gestational diabetes and lactation counseling and equipment to help women who choose to breastfeed do so successfully;

- at least one well-woman preventive care visit annually for women to receive comprehensive services; and

- screening and counseling for all women and adolescent girls for interpersonal and domestic violence in a culturally sensitive and supportive manner.

For more on the impact of these recommendations, you can see my earlier blog post "Birth Control Coverage is a Critical Win for Women's Health."

- Medicaid and CHIP are cost-effective because they increase access to preventive health care (including well-child care and vaccinations) at a per-person cost of 20 to 27 percent less than private health insurance: "While Medicaid spending has risen due to the growing number of people who are in need of coverage, Medicaid per-capita expenditures have grown much less than private health insurance premiums and more slowly than oveall healthcare cost growth.

- Medicaid and CHIP already give states enormous flexibility in how they design their programs to meet their populations' needs. As a result, "state Medicaid programs have served as innovators to test a variety of cost-containment and quality care initiatives including payment reform, managed care, patient-centered medical homes, quality measurement, and home and community based care."

- Medicaid and CHIP protect families' finances during times when they are already struggling: "the data is clear that economic downturns take a much greater toll on Medicaid enrollees." For these enrollees, the Ryan plan could be devastating because it would remove a critical source of financial protection, as well as health care. The Medicaid Works report predicts that the Ryan plan will force states to make drastic cuts in Medicaid and that "about 31 to 44 million fewer people would be covered by Medicaid a decade from now than under current law."

Despite the Medicaid program's success, a common complaint by Medicaid consumers is the inability to find a doctor or other provider willing to treat them. According to a recent poll by the Kaiser Family Foundation, 32% of people who had been covered by Medicaid at some point in their lives reported having difficulty finding a provider willing to accept Medicaid, compared to only 13% of those with private insurance. I've discussed this Medicaid access problem in prior posts. It is clear that declining reimbursement and drastic cuts are one cause of this access crisis. The other cause is a lack of clear legal standards and accountability when states violate federal law and impose arbitrary cuts that threaten health care access. The Ryan plan would exacerbate both of these problems.

The Medicaid Works report was commissioned by First Focus, which describes itself as a bipartisan advocacy organization dedicated to making children and families a priority in federal policy.