Yesterday the Supreme Court agreed to hear challenges to the Patient Protection and Affordable Care Act, the landmark health reform legislation signed into law by President Obama last year. The Supreme Court will consider several questions related to the constitutionality of the Act.

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.

Continue reading "Supreme Court Will Hear Challenge to Health Reform" »

Michael Campbell, the Visiting Reuschlein Clinical Professor at Villanova University School of Law, and former Executive Director of the Pennsylvania Health Law Project, has recently published a paper titled "Did I Do That? An Argument for Requiring Pennsylvania to Evaluate the Racial Impact of Medicaid Policy Decisions Prior to Implementation," in the Temple Law Review. Professor Campbell looks at the Medicaid program in Pennsylvania to examine how state funding decisions can have a disproportionately harmful impact on African Americans and Hispanics, while other policies seem to disproportionately benefit white populations.

Continue reading "Why Racial Impact Statements Should be Required for Medicaid Policy Decisions" »

Not long after a federal district court judge in Indiana temporarily enjoined a law excluding Planned Parenthood from participation in a federally funded program, a federal court in Kansas did the same. In both instances, the state law effectively singled out Planned Parenthood for exclusion because of its association with abortion. And in both cases, the court issued a preliminary injunction and held that the law would likely be found unconstitutional because it imposed additional eligibility criteria that were inconsistent with the federal law.

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.

Continue reading "Another Court Prevents State Attempt to Defund Planned Parenthood" »

In the last few years, a renewed wave of attacks on abortion rights has captured media attention. One form of attack has been to target public funding for Planned Parenthood -- a provider of a wide range of women's reproductive and other preventive health services that some associate with abortion, despite the fact that abortion only makes up a very small percentage of the services it offers, and that some Planned Parenthood facilities do not offer abortion at all. At the national level, Republicans in the U.S. House of Representatives led an unsuccessful attempt to defund Planned Parenthood, but now states have taken 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, and other states are trying to follow Indiana's lead. A successful challenge to Indiana's law in federal court, however, shows that these defunding attempts likely violate federal law.

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.

Continue reading "Federal Court Halts Indiana's Defunding of Planned Parenthood" »

With the passage of the Affordable Care Act, President Obama took a huge step forward to ensure greater health care access. But now he is taking political and legal action that threatens to undermine his promise of expanded access through Medicaid.

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?

Continue reading "Obama Undermines Health Reform Goals by Urging the Supreme Court to Eliminate Legal Rights for Medicaid Beneficiaries & Providers" »

Health and women's advocates are praising the Institute of Medicine (IOM)'s recent recommendations to include prescription birth control among the preventive health services that insurance companies must cover without a co-pay under the Affordable Care Act. This is important because cost can be a significant barrier to the consistent, effective use of birth control. For decades, birth control has been excluded from many health plans, but even when it is covered, cost-sharing keeps some women from getting it or using it consistently. A 2010 survey reveals that more than a third of women voters struggle with the cost of birth control, and the IOM report notes that women are consistently more likely than men to delay or forego health care because of cost.

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.

Continue reading "Birth Control Coverage is a Critical Win for Women's Health, but the Fight Continues for Medicaid Beneficiaries & the Uninsured" »

Last month, I wrote a blog post about why Ryan's plan to turn Medicaid into a block grant program would harm Medicaid consumers and states. Last week, two professors at the School of Public Health & Health Services at George Washington University authored a report titled Medicaid Works: A Review of How Public Insurance Protects the Health and Finances of Children and Other Vulnerable Populations, which provides further evidence that the Ryan plan is not the right solution to rising health care costs. The Medicaid Works Executive Summary lists some of the report's key findings:

Continue reading "More Evidence that Ryan's Plan for Medicaid is Bad Health & Fiscal Policy" »

A recent editorial in the NY Times, titled The Ryan Plan for Medicaid, describes why the House Republicans' plan to radically restructure Medicaid would be very bad for states and ultimately Medicaid consumers. The editorial does a good job of explaining the proposed changes to the existing Medicaid program, why these changes will ultimately shift more of the financial cost of health care from the federal government to the states, and how this will inevitably lead to states cutting even more services and provider reimbursement.

As bad as this is, Ryan's plan would further threaten access for vulnerable Medicaid consumers in another way - by undermining the legal rights that Medicaid consumers and providers have to challenge the state cuts that are likely to occur.

Continue reading "The Ryan Plan for Medicaid Harms States & Medicaid Consumers" »

Around the country, states are struggling to balance their budgets, in part by making deep cuts in health and other benefits programs for low income residents. One area that continues to be vulnerable to these cuts is the Medicaid program - the joint federal-state public health insurance program that helps ensure health care for the very poor, and has been particularly important for pregnant women, children, people with disabilities, and elders. The cuts have sparked policy debates between state officials insisting such cuts are necessary in order to get their fiscal house in order, and patients' advocates who criticize states for trying to balance the budget on the backs of our most vulnerable citizens. Indeed, the cuts threaten to drive even more providers out of the Medicaid program, jeopardizing access further for Medicaid benefiticaries who already struggle to find providers willing to treat them.

One of the most common places where we see Medicaid cuts is in rate setting for physicians, hospitals, and other health care providers, and these payment cuts have sparked a fierce legal fight in federal court. Patients and health care providers around the country have brought suits challenging these payment reductions on the ground that they jeopardize health care access and quality in violation of federal law. These suits raise two important legal issues. The first has to do with the test for determining whether states have violated Medicaid requirements. The second concerns whether patients and providers have a right to challenge such violations in court.

Continue reading "U.S. Supreme Court Will Hear Challenge to Medicaid Cuts" »

For the past few years, the California legislature has been trying to deal with its fiscal crisis by cutting Medi-Cal spending dramatically. Medi-Cal is California's version of Medicaid - it is a joint federal-state program that benefits significantly from federal funding, and is also subject to federal law. Health care providers and beneficiaries have used federal law to challenge recent state cuts in federal courts, pretty successfully so far.

The latest round in this battle between providers and the state occurred a few weeks ago, in California Association of Rural Health Clinics v. Maxwell-Jolly (CARHC). CARHC challenged a law enacted last year that eliminated coverage for certain services, including adult dental, podiatry, and chiropractic serivces, provided by Rural Health Centers (RHCs) and Federally Qualified Health Centers (FQHCs) to Medi-Cal beneficiaries. RHCs and FQHCs are located in medically underserved areas, and they are required to treat people without regard to their ability to pay.

The ruling yielded mixed results for the plaintiffs. They lost on one very important issue - whether federal law requires states to pay for the categories of services that were eliminated. The court found that the statute was clear in treating these services as optional, not mandatory, and thus states could decide not to cover them. On the other hand, the court issued an injunction delaying implementation of the cuts until approved by the federal government. In its reasoning, the court reaffirmed two very important principles that give providers and beneficiaries legal leverage to continue fighting state cuts.

Continue reading "States Cannot Ignore Federal Role in Medicaid Administration" »

As Congress debated health care reform, many people criticized the expansion of Medicaid as an illusory promise to expand care. In many states there is a Medicaid access crisis. Beneficiaries have trouble accessing care because providers refuse to treat them. And in communities where the numbers of Medicaid beneficiaries and the uninsured are high, providers like private hospitals, physicians, and other specialty centers are fleeing the community altogether.

The federal government has a critical role to play in fixing this problem, but the latest health care reform law does not signal a serious commitment by federal goverment to use its power in that way.

Continue reading "Federal Oversight & the Medicaid Access Crisis" »

Expanding Medicaid eligibility is an important part of the current health reform law, but many question whether this will mean better health care access. Medicaid beneficiaries have had trouble accessing care for years. From the beginning, Medicaid has been plagued with two problems: low payment rates for providers, and a slow, often confusing, reimbursement system. Medicaid pays far less than Medicare for the same service, and rates are usually too low to even cover providers' costs. Recent state budget cuts have exacerbated the problem - states are cutting already low rates as a way to fix their budget deficits.

Continue reading "California Lawsuit Evidence of Medicaid Access Crisis" »

Even before the Patient Protection and Affordable Care Act (the "Act") was signed into law, lawmakers and health policy analysts in every state began trying to figure out what reform would mean for their state - the benefits and the costs. While the Act includes many different types of reform that would need to be considered carefully in order to really answer this question, the Medicaid reforms are generating a lot of attention because of the potential cost to states responsible for implementation. Specifically, the Act does several things to expand, improve and preserve existing Medicaid coverage. It redefines certain federal standards and criteria that states must implement.

This post gives a brief overview of the key reforms and then review some of the benefits and costs to states.

Continue reading "State Reactions to Medicaid Reforms" »

The Patient Protection and Affordable Care Act recently signed into law by President Obama builds on the existing public and private financing system to increase the number of people who can afford insurance, and thus access care. One way it does this is by expanding the existing Medicaid program to cover more people.

Continue reading "Medicaid Expansion in New Health Care Law" »