As we have previously reported, the Supreme Court will hear a group of cases, Douglas v. Independent Living Center of Southern California, Inc., et al, Nos. 09-958, 09-1158 and 10-283, addressing whether Medicaid providers and beneficiaries may enforce the Medicaid provider payment provision, 42 U.S.C. § 1396a(a)(30)(A), in federal court on preemption grounds.  Preemption cases argue that state laws are inconsistent with mandatory federal laws and, under the Supremacy Clause of the U.S. constitution, must yield.

In a friend-of-the court brief filed last week, the United States Solicitor General wrote on behalf of the Obama administration asking the Supreme Court to find that Section (30)(A) cannot be privately enforced.  According to the brief, enforcement should be the sole purview of the Secretary of Health and Human Services (who is statutorily authorized to terminate federal funding).   A copy of the brief is attached so you can read it for yourself.

The arguments, while focusing on (30)(A), could spill over and affect private enforcement of other Medicaid Act provisions.  It is beyond belief that this administration would take this position—one that slams the court house doors shut on low-income people, women and children, people with disabilities, and elderly people; that ignores the clear intention of Congress that Social Security Act programs like Medicaid are privately enforceable (see 42 U.S.C. § 1320a-2); and that ignores Supreme Court history recognizing the limited and secondary role of administrative enforcement (see, e.g., Blessing v. Freestone, 520 U.S. 329 (1997)) and the lack of an adequate enforcement scheme in Medicaid (see, e.g. Wilder v. Va. Hosp. Ass’n, 496 U.S. 498 (1990) and Rancho Palos Verdes v. Abrams, 544 U.S. 113, 121-22 (2005) (listing Medicaid as a statute where private enforcement is not foreclosed).

Disappointing is too light a word.

The Administration needs to hear from us. Please take a moment to let them know you are disturbed by the Administration’s position in this case.  This is important. Your voices need to be heard as loudly as the voices of the states and those who want to bar the court house doors against the public. Here are some contact numbers:

Nancy-Ann E. Min DeParle, Assistant to the President and Deputy Chief of Staff for Policy: 202-456-1775, ndeparle@who.eop.gov

Melody C. Barnes, Assistant to the President and Director of the Domestic Policy Council: 202-456-5594,  domesticpolicycouncil@who.epo.gov

Jeffrey S. Crowley, National AIDS Policy Director and Senior Advisor on Disability Policy: 202-456-4450, jcrowley@who.eop.gov

Jeanne M. Lambrew, Deputy Assistant to the President for Health Policy, 202-456-3326, ssekhar@who.epo.gov

White House switchboard: 202-456-1414.