DOJ Files Brief Asking Justices To Kick Medicaid Providers Out of Court

Federal law requires state Medicaid programs to pay doctors enough money to ensure that Medicaid patients will have access to the same quality of care as everyone else. Yet the solicitor general’s office filed an amicus brief last week siding with parties that want to render this law almost completely unenforceable:

Federal law says Medicaid rates must be “sufficient to enlist enough providers” so that Medicaid recipients have access to care to the same extent as the general population in an area.

In a friend-of-the court brief filed Thursday in the Supreme Court, the Justice Department said that no federal law allowed private individuals to sue states to enforce this standard.

Such lawsuits “would not be compatible” with the means of enforcement envisioned by Congress, which relies on the secretary of health and human services to make sure states comply, the administration said in the brief, by the acting solicitor general, Neal K. Katyal.

Essentially, DOJ claims that the Medicaid law cannot be enforced by lawsuits brought by individual Medicaid providers. Only the Obama Administration can require states to follow the law.

There are all kinds of problems with this claim, beginning with the fact that it conflicts with two well-established Supreme Court precedents. More importantly, the rule proposed by DOJ would eviscerate enforcement of Medicaid law because the administration neither has the resources to discover every violation of the statute nor sufficient resources to bring an enforcement action where ever one is needed.

Worse, what happens when President Obama leaves office — potentially to be replaced by someone much more hostile to Medicaid? If a future Administration shows no interest in enforcing the Medicaid statute, then entire provisions of law could effectively cease to exist until a more progressive president is elected.