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.
(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:
]]> - the constitutionality of the individual mandate, click here.- the severability of the mandate (What happens to the rest of the law if the mandate is struck down?), click here.
- do plaintiffs even have standing to challenge the mandate at this time, click here.
- the constitutionality of the Medicaid expansion, click here.
]]>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.
]]> The Importance of Deference and the APAIn their predictions about what Douglas means for future payment suits, Governor Brown and Professor Outterson are probably relying on language in the opinion that speculates about two effects of CMS approval - both of which are favorable to states. First, the Court suggests that CMS approval "may change the answer" to the "underlying substantive question" about whether the rates violate federal law. Second, the Court notes that CMS approval changes the procedural posture and, thus, may change the level of scrutiny applied by the courts because it may require the plaintiffs to seek review of the agency determination under the Administrative Procedure Act (APA) rather than in an action against California under the Supremacy Clause. This is relevant, says the Court, because the APA generally provides for judicial review that is deferential to agency action, making the "Supremacy Clause challenge at best redundant." At worst, the Court worried, allowing both claims might "threaten[] potential inconsistency or confusion," if the Supremacy Clause action allows courts to avoid the kind of deference typically demanded under the APA.
In short, the Court is suggesting that federal courts, in fact, may be less likely to invalidate cuts that have been approved by CMS, and that legally courts may have less discretion to do so under this more deferential APA standard. While this certainly sounds good for the states, people should not rush to assume that this will mean a slam dunk for states. For now, the Court can only speculate about the effect of CMS approval because the parties have not briefed these issues; this is why it is remanding the issue back to the Ninth Circuit. Through this process, I expect the Court to learn much more about the level of review that federal courts have been applying to states' rate-setting processes and CMS's decisions. What it will discover is that Supremacy Clause claims have not been used to avoid the typical deference applied to agency action under the APA; federal courts do consider the APA's basic principles of deference in these cases, but deference is not absolute. A look at Medicaid payment suits shows that courts often have good reasons for finding that deference to agency decisions is not warranted, even under the APA.
Limits on Deference: Why States Can Still Lose
The APA does create a deferential standard for reviewing agency action, but the Supreme Court has made clear that a reviewing court can set aside agency action if it is found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." The Court has gone further to explain that a decision is arbitrary and capricious "if the agency relies on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." When federal courts have invalidated state Medicaid rates, even in the face of CMS approval, it is because they found that the agency action did not meet these minimal standards.
The most common and compelling example of this is where states cut rates in clear violation of federal law, and the federal regulator does nothing about it. California has one of the worst histories of repeatedly disregarding federal rate-setting requirements. It has tried several times to cut rates solely in response to its budgetary needs, and without any consideration for how it would impact access for Medicaid patients -- an act that federal courts have long held to be a violation of federal law. CMS (and its predecessors) have an equally troubling history. Historically, federal regulators have not done much, if anything, to enforce the Equal Access Requirement. They are more likely to actively review and reject state plans when proposed rates look too high, but not when concerns are raised that rates are too low to ensure equal access. Reviews of state plans have been cursory, at best, and are often approved by default. It is in this context that courts have consistently refused to defer to agency action, holding that even traditional APA deference does not require courts to "rubber stamp" federal approval of state plans that are clearly arbitrary and a violation of federal law.
Admittedly, the question about whether deference is warranted is much harder to answer where the state undertakes some process to comply with federal law, and where CMS actively reviews and approves that process. This is the scenario presented by recent developments in California, which is likely why the Supreme Court remanded the case. In the latest round of cuts, California conducted an access review and concluded that the rates complied with federal law. CMS was also engaged in the process; before approving California's rate cuts, CMS requested additional information from state officials concerning the impact on access, and was confident in the state's findings. In fact, under the Obama Administration, CMS generally has been more active in reviewing state plans to determine compliance with the federal Equal Access Requirement, and it has recently proposed regulations that give states guidance about the kind of process they should undertake in order to satisfy this requirement. This certainly does not look like the kind of clearly arbitrary or capricious behavior described above.
Nonetheless, the APA's deferential standard permits courts to take a "hard look" at the agency decision-making process to determine whether an agency has engaged in reasoned decision making or is acting in an arbitrary and capricious manner. Not all courts look closely agency actions, and some defer to agency action despite evidence of serious flaws in the process. But other federal courts have rejected state rates despite federal approval where they find that the state failed to undertake a "bona fide process" that would ensure compliance with federal law. And the Ninth Circuit, in Orthopaedic v. Belshe, has gone the furthest in interpreting 30A as specifically requiring states to consider provider cost as part of the rate-setting process. According to the Ninth Circuit, ignoring provider cost is inconsistent with the federal law, which is one of the grounds for setting aside agency action under the APA.
Recent Injunctions Illustrate the Next Challenge for the Court
Perhaps the best predictor of what the Ninth Circuit will do on remand, and the legal questions likely to reach the Supreme Court in the next round, is the result of three recent California district court opinions enjoining Medi-Cal cuts despite CMS approval. Applying Ninth Circuit precedent, the court found a strong likelihood that the state's rate-setting process, and specifically its access review, was so defective as to be arbitrary and capricious, and it found that deference to CMS approval was not warranted. I have described these cases in greater detail in an earlier blog, but I'd like to give just two examples of the kind of defects that led the court to its conclusion.
First, the court held that state officials' failure to consider provider cost in its rate-setting process violated 30A based on the Orthopaedic case described above. CMS argued for a different interpretation of 30A - one that would not require states to consider provider cost - and it insisted that its interpretation should receive deference. But the court rejected CMS's interpretation and argument for deference, in part, because of CMS's own inconsistency. It was particularly troubled by the fact that CMS was treating provider cost as irrelevant for determining whether the rates are too low to ensure equal access, but that in 2004 CMS argued the opposite position when it denied a state plan amendment by Alaska that would increase Medicaid rates. In that case, CMS denied the plan, in part, because of Alaska's failure to consider provider cost, and, ironically, CMS quoted language from the Ninth Circuit's Orthopaedic decision stating that "the requirements of 30A are ... not so flexible as to allow the [State] to ignore the costs of providing services." To take such apparently inconsistent positions without a rational explanation looks like precisely the kind of arbitrary action that does not warrant APA deference.
The court was also troubled by the state's failure to consider the kind of data necessary to accurately measure access. State officials measured access by counting the numbers of Medicaid providers that accepted at least one claim per year, but did not inquire into how many Medicaid patients these providers were able or willing to see, what kinds of services they could provide, or how this compared to the need of beneficiaries in a specific geographic area. Even CMS (through informal guidance and recent proposed rules) has made clear that this kind of analysis is inadequate, and that states should measure access based on patients' needs and a realistic picture of whether they can access services in a timely manner. Yet CMS approved the rate cuts, without acknowledging this failure or demanding further information.
These recent cases illustrate that some courts continue to be troubled by what they view as arbitrary, capricious and inconsistent decision making by states and CMS, and that they will continue to take a hard look at agency decisions in order to determine whether deference is warranted. If I had to make a prediction, my guess would be that on remand the Ninth Circuit will be equally troubled by the actions of state officials and CMS, and that they will be just as vigilant as the district court in reviewing the agency's process before deciding whether deference is really warranted under the APA. This is why I think Douglas raises more questions than it answers: Douglas' suggestion that CMS approval will trigger deference by courts is not a new concept nor does it mandate a particular outcome because deference is not absolute.
]]>Previously I have blogged about this problem and about the lawsuits brought by Medi-Cal providers and beneficiaries to prevent these kinds of cuts from going into effect. States must comply with procedural and substantive guarantees found at 42 U.S.C. Section 1396a(a)(30)(A), commonly referred to as the "Equal Access Provision" or "30A" requirement. Under this provision, states must "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." State officials cannot honestly and reasonably make such assurances without undertaking some kind of analysis to assess the impact that rates will likely have on access, and federal courts have consistently held that states cannot cut provider rates solely in response to fiscal concerns. Yet this is precisely what California lawmakers have tried to do a number of times before, until federal courts were asked to intervene and prevented the cuts.
Federal regulators are supposed to oversee the state rate-setting process to ensure 30A compliance. CMS (the Centers for Medicare and Medicaid Services), is the division of the U.S. Department of Health and Human Services that administers Medicaid, and the Medicaid Act requires states to submit proposals to change rates to CMS for approval. Until recently, however, federal regulators have been largely absent in this arena: HHS has failed to promulgate regulations providing guidance to states about how to comply with 30A, though the Obama administration has recently proposed such rules; and HHS has failed to use its enforcement power to reject rate cuts, even where state violations of federal law have been clear and egregious. It is because of this regulatory void that federal courts historically have played such a critical role in Medicaid payment suits.
Significance of the AB 97 Rate Cut Cases
The most recent decisions by a California district court enjoining the AB 97 rate cuts are noteworthy for a couple of reasons. First, both federal regulators and state officials seemed to take their 30A obligations seriously. When California submitted its rate cuts for approval, CMS did not simply rubber stamp them, it requested additional information concerning the implications of the cuts on health care access. California performed an access review, ultimately concluding that the cuts would not adversely impact quality or access. Based on this, CMS approved the cuts.
These cases are also important because of the current threat to providers' and beneficiaries' right to challenge illegal rate cuts in federal court. As I describe in greater detail in a prior blog, the Supreme Court will be deciding this issue soon, and HHS has sided with the states in advocating for the elimination of this judicial last resort. HHS's argument against allowing suits to challenge payment cuts is based, in part, on the fact that HHS has been explicitly charged with Medicaid oversight in rate-setting. Implicitly, HHS seems to be claiming that it can be trusted to exercise its oversight effectively. Certainly, the Obama administration has done more than past administrations to try to earn this trust by stepping up its oversight activity with respect to access and proposing rules to give states guidance for complying with 30A.
There are still many unanswered questions about HHS's stated commitment to enforcing 30A obligations, and these recent cases provide a troubling glimpse of this "commitment" in practice. In all three cases, the court's opinion reveals fundamental flaws in the state's rate-setting process -- flaws that reflect a continuing disregard of federal law, and specifically access and quality protections. In approving these latest cuts, CMS seems to ignore these flaws, California's history of violating federal law, and even California's disregard of CMS's own suggested criteria for determining 30A compliance. Far from instilling trust in CMS's regulatory promises, these most recent cases reinforce the critical role that federal courts will need to continue to play in protecting Medicaid access in the future.
]]> A Closer Look at California's Process: Determining 30A ComplianceTypically, courts are very deferential to action by administrative agencies: they affirm an agency's action unless it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Federal courts have held that a decision is arbitrary and capricious if the agency relies on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. In this case, however, the California district court did not defer to the state's findings or CMS's approval. It found that the state's process did not comply with 30A, and thus CMS's approval was also inconsistent with federal law. Links to the full opinions are provided above, but I want to briefly highlight three important defects in the state's process that led the court to invalidate the cuts.
The Role of Provider Cost
One of the flaws in the state's process was its failure to consider provider cost as a factor in setting rates. Since 1997, the Ninth Circuit has interpreted 30A to require states to do cost studies and consider these costs in rate-setting. In fact, Medi-Cal cuts have been invalidated in the past on this basis, so lawmakers are aware of this requirement. Their failure to comply is simply the latest in a pattern of disregarding federal rate-setting requirements. The important link between the sufficiency of payment rates, provider cost, and provider participation has been recognized either explicitly or implicitly since Medicaid's enactment in 1965. Whether rates are sufficient to cover the "reasonable cost" of providing care is relevant for determining if rates encourage economical and efficient care (in other words, not too high), as well as for determining if they are consistent with access and quality (in other words, not too low).
CMS's position about the role of provider cost in determining 30A compliance has been, at best, inconsistent. In 1990, Medi-Cal beneficiaries challenged the extremely low payment rates and access for dental care in the case Clark v. Kizer. In the course of litigation, HHS filed an amicus brief explaining the informal criteria it used for measuring 30A compliance, affirming the relevance of provider cost in the process. As recently as 2005, in Alaska Department of Health and Social Services v. CMS, CMS denied Alaska's proposed rate changes out of concern that the rates were too high, citing as one reason for its denial Alaska's failure to consider provider cost. Currently, however, CMS is taking the opposite position: In its recent proposed regulations and in the AB 97 cases, it insists that 30A does not require cost studies, and it seems to devalue the importance of the link between rates, provider cost, and access. The court was disturbed by this inconsistency. CMS cannot assert that cost is relevant in one circumstance (when concerned that rates are too high), but claim that it is irrelevant in another (when the concern is that rates are too low or after a change in administration) without some rational explanation. This is precisely the kind of arbitrary and irrational agency action which is not entitled to judicial deference.
Measuring Beneficiary Access
State officials and CMS seemed to focus their review on access concerns, and, specifically, whether rates would continue to guarantee equal access for Medi-Cal beneficiaries as to those in the general population. However, the state failed to consider the kind of data necessary to effectively measure access. A lack of clear statutory or regulatory requirements for 30A compliance means that states have had a great deal of discretion to establish their own process for access review. However, HHS has offered a framework and suggested criteria for measuring access, through informal guidance, and, more recently, in its proposed rules. This framework includes obvious criteria, such as the level of physician participation, beneficiary need, and patient utilization. But HHS and the California district court in the Clark case have also made clear that these criteria must be assessed meaningfully and accurately; that is, states must try to assess the reality of access on the ground and from the perspective of Medi-Cal beneficiaries.
In the case of the AB 97 rate cuts, the court found that the state failed to do this; instead the state used a process and data that likely created a distorted picture of access. In the case of physician services, for example, the state determined the number of participating Medicaid providers by counting the number of physicians who had submitted at least one claim per year. It did not, however, gather information about how many of these physicians actually treated Medi-Cal beneficiaries regularly, and what kind of services they provided in light of beneficiaries' needs. The state's access analysis also failed to take into account the proximity of providers to beneficiaries, beneficiaries' level of need, and patterns of utilization (what kind of care they received and where). The lack of meaningful inquiry into each of these factors meant that the state made a number of unrealistic and overly optimistic assumptions about the level or kind of services that certain providers would be able or willing to provide.
Quality of Care
Many of the potential access concerns raised by plaintiffs implicate quality of care concerns as well. Plaintiffs alleged the record demonstrated "'no consideration' at all by DHCS or CMS of the impact of the rate reduction on quality of care." In response, state officials argued that they designed a monitoring plan to monitor both access and quality of care. They also claimed that they could rely on existing health and safety laws that require a minimal standard of quality care to ensure that Medi-Cal beneficiaries would get adequate care. The court rejected both responses. Section 30A requires states assess the possible impact of rate cuts on access and quality prior to rate implementation, and to use this information to either adjust the rates or implement other safeguards to prevent unnecessary harm. The state's monitoring plan was inadequate because it took a wait-and-see approach, creating a potential response only after a problem had been identified. Moreover, a number of courts have held that states can not rely on external quality protections as a way to satisfy 30A requirements. States must do their own quality impact assessment based on actual delivery trends and patient needs. States cannot use the fact that other laws regulate quality as a way to avoid their obligation to assure "that the payments themselves be consistent with quality care."
So what does this mean for the future of Medicaid access?
In a prior blog I posed a similar question about whether the Medicaid expansion would really improve health care access in light of existing barriers, including low reimbursement. At that time, I suggested that the answer would depend, in part, on the willingness of CMS to meaningfully review state Medicaid plans and to use its oversight power to enforce federal access protections. This case gives us the first glimpse of what we can expect under the Obama administration, and what it reveals is not very hopeful.
]]>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 Court will address two other issues related to the mandate. The first is a jurisdictional question about whether the federal courts are barred from even hearing a challenge to the mandate because of a provision in the federal tax code known as the Anti-Injunction Act ("AIA"). The penalty for failing to comply with the mandate is a tax collected by the IRS, but the AIA prohibits lawsuits that seek to prevent the assessment and collection of taxes before they are due. It requires individuals to pay their taxes first and sue later, which means the earliest an individual would be able to file suit to challenge the mandate would be in 2015. A number of cases have found that the AIA does not apply on the grounds that failure to comply with the mandate is not really enforced as a tax assessment, but rather is a "regulatory penalty" not subject to the AIA prohibition. So far, the Fourth Circuit is the only appellate court to dismiss a challenge to the mandate on this basis.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.
]]>Probably to most people's surprise, the Fourth Circuit dismissed both cases based on a lack of jurisdiction, and therefore did not reach the merits of the constitutional challenge. Practically, this will not impact whether the challenge is ultimately heard by the U.S. Supreme Court in light of the split between the Sixth and Eleventh Circuits. The court's reasoning for dismissal in the Liberty case is potentially significant, however, because it is the first time that a court has embraced the federal government's characterization of the mandate penalty as a "tax." This characterization has two important implications.
]]> The first is reflected in the majority's opinion, which held that plaintiffs could not bring a challenge to the mandate yet because of a provision in the federal tax code known as the Anti-Injunction Act. The Anti-Injunction Act is a federal law that prohibits law suits that seek to prevent the assessment and collection of taxes before they are due. It requires individuals to pay their taxes first and then file a lawsuit for a refund. This means that the earliest an individual would be able to file suit would be in 2015, and only if the person did not qualify for one of the exemptions provided in the law and chose to pay the tax penalty instead of purchasing insurance. Although I suggested that this might ban challenges to the mandate in a prior post, I was surprised by this decision because until now no court has adopted the federal government's characterization of the penalty as a "tax" subject to the Anti-Injunction Act bar.The court's characterization of the mandate penalty as a "tax" may also impact the more important question about the constitutionality of the mandate. In its defense of the mandate, the federal government has argued that the tax assessment imposed on those who fail to purchase insurance (and are not exempt from the mandate) is a constitutional exercise of the federal government's very broad power to tax and spend for the general welfare. However, every court that had considered this argument before yesterday rejected it. Even those upholding the mandate rejected the government's tax defense; they have all held that the penalty does not qualify as a "tax" but is instead a "regulatory penalty" that must be found to be a legitimate exercise of some other federal power - like the power to regulate interstate commerce.
Judge Wynn, one of the judges in the Liberty majority, wrote a concurring opinion that embraced the federal government's argument. Although Judge Wynn agreed that the challenge had to be dismissed, he went further to note that based on the same reasoning, the mandate should be upheld as a legitimate exercise of Congress' taxing power. According to Judge Wynn, the fact that the "tax" serves a regulatory function does not necessarily undermine its revenue-raising function because taxes typically do both. In addition, he found that the tax passes constitutional muster because it is expected to raise significant amounts of revenue, will be used for the general welfare, and will not infringe any other constitutional rights.
Defense of the mandate based on the "taxing power" has not received nearly as much attention as the interstate commerce argument, that is until the Fourth Circuit thrust it into spotlight yesterday. Two recent blogs discussing the case's implications are Health Care Challenge Rejected, by Lyle Denniston on SCOTUSblog, and Fourth Circuit Dismisses Two Challenges to the Individual mandate on Jurisdictional Grounds by Ilya Somin on The Volokh Conspiracy. For an earlier and more in-depth analysis of the tax justification for health reform, go to the O'Neill Institute's Legal Solutions in Health Reform webpage.
]]>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.
]]>Despite striking down the mandate, the Eleventh Circuit rejected the part of the lower court's holding that would have invalidated the entire health reform law. The Eleventh Circuit's holding is consistent with the District Court's ruling in Virginia v. Sebelius discussed in greater detail at my prior blog post Will the battle over the individual mandate threaten the entire health reform law? Both courts emphasized the presumption in favor of severability: "Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem, severing any 'problematic portions while leaving the remainder intact." Given the lack of clear legislative intent regarding severability, and the fact that many provisions in the law were not directly tied to the mandate or even related to private insurance regulation, the Eleventh Circuit held that the mandate should be severed from the rest of the law.
Click here for a chart of key decisions about the constitutionality of the individual mandate with links to the cases. Go to Health Care Justice Blog for more information on each of the cases and links to the decisions.
]]> ]]>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.
]]> State Law Exclusion of Planned ParenthoodKansas 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.
]]> Exclusion from the Medicaid ProgramMedicaid 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?
]]> In asserting its position, the Obama administration does not seem to rely on any firm legal precedent. Plaintiffs are challenging California's payment cuts based on the Supremacy Clause, in Article VI of the U.S. Constitution, which is an important and uncontroversial basis for challenging state laws that conflict with federal law. In Independent Living Center, California enacted payment cuts without regard to access, quality, economy or efficiency - factors required to be considered under federal law - clearly undermining and conflicting with the Medicaid Act.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."
]]>The consequences of cost-related barriers to birth control are signficant: According to the Guttmacher Institute, women who do not use contraceptives or use them inconsistently account for 95% of the three million unintended pregnancies that occur every year. Unintended pregnancies can have harmful physical and emotional health effects for women, especially those who sufffer from chronic medical conditions or are at risk for health complications resulting from pregnancy. The IOM's recommendation to provide birth control as part of preventive health services is an important step toward improving the health and well-being for insured women.
As we celebrate this achievement, however, we must remember that for many women the fight for reproductive and sexual health care continues. Even with private insurance expansion under the Affordable Care Act, many women will be uninsured or covered by Medicaid. Currently, the uninsured and many Medicaid beneficiaries rely on clinics that provide free or low-cost reproductive health care, including birth control, and these clinics depend heavily on federal and state funding. Cuts in funding for family planning services, and the more radical defunding attacks that target providers of free and low-cost birth control are threatening reproductive health access and the well-being of our most vulnerable women.
]]> Planned Parenthood has been the most visible target of these attacks on women's preventive health services. After Republicans in the U.S. House of Representatives led an unsuccessful attempt to defund Planned Parenthood, states took up the fight. Indiana was the first to enact a law prohibiting Planned Parenthood from receiving Medicaid payments or federal funding for disease intervention services. The good news is that, so far, the U.S. Department of Health and Human Services (HHS) and a federal court are preventing implementation of the Indiana law on the grounds that it violates federal law and would jeopardize critical health care access for women. The bad news is that neither this court decision, nor HHS's threat that such action would jeopardize Indiana's Medicaid funding, has deterred other states from similar attacks. In New Hampshire, for example, the State's Executive Council essentially ignored its own legislature when it voted to cancel the state's contract with Planned Parenthood. Other defunding attempts are underway in Kansas, North Carolina, Texas and Oklahoma.This war on Planned Parenthood is purportedly driven by anti-abortion sentiment, but abortion is only a small portion of the services it provides (less than 3% in one case). Moreover, it is already prohibited from using government funding for abortion-related services. The overwhelming amount of services provided by Planned Parenthood involves free or low cost birth control, screening and treatment for sexually transmitted diseases, breast and cervical cancer testing, prenatal care, and contraceptive counseling - precisely the preventive health services that the IOM report just found to be critical to women's health.
In fact, family planning services in general are vulnerable to federal and state cuts in funding. For example, in February the House voted to eliminate Title X funding which helps to pay for the preventive reproductive health services recommended by the IOM; according to the Guttmacher Institute, about 4.7 million Americans get health care from clinics funded by Title X money. And in New Jersey, the Governor reportedly cut $7.5 million for clinics specializing in women's reproductive health, "effectively eliminating any public funding for family planning services."
In addition to urging HHS to adopt the IOM recommendations with respect to insurance coverage, we must make sure that this report has implications beyond private insurance reform. We must use it to prevent federal and state lawmakers from making public funding decisions that threaten access to birth control and other preventive health services for the uninsured and Medicaid beneficiaries.
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