Amicus Curiae Brief — Health and Hospital Corporation of Marion County, et al., Petitioners v. Ivanka Talevski, Personal Representative of the Estate of Gorgi Talevski, Deceased

No. 21-806

IN THE

Supreme Court of the Anited States

HEALTH AND HOSPITAL CORPORATION OF MARION

COUNTY, ET AL.,

Petitioners,

V.

IVANKA TALEVSKI, PERSONAL REPRESENTATIVE OF THE

ESTATE OF GORGI TALEVSKI, DECEASED,

Respondent.

On Writ of Certiorari to the

United States Court of

Appeals for the Seventh Circuit

BRIEF OF CALIFORNIA MEDICAL

ASSOCIATION AS AMICUS CURIAE

SUPPORTING RESPONDENT

LONG X. DO STACEY M. LEYTON

KYLE R. BRIERLY Counsel of Record

ATHENE LAW LLP BRONWEN B. O’HERIN

5432 Geary Boulevard, #200 ALTSHULER BERZON LLP

San Francisco, CA 94121 177 Post Street, #300

(415) 680-7419 San Francisco, CA 94108

long@athenelaw.com (415) 421-7151

sleyton@altber.com

Counsel for Amicus Curiae

CALIFORNIA MEDICAL ASSOCIATION

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, D. C. 20002

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..... ec eeeeeeeeee eee ll

INTERESTS OF AMICUS CURIAE............. cee 1

INTRODUCTION 00. eccccnteeeeceeeeeeneeeeeeenees 1

ARGUMENT 1... cececcccceeeeeeeeeeeeceeaueceeeeeeeeeenaaeees 3)

I. Well Settled Precedents Spanning Halfa

Century Have Made Rights Established in

Spending Clause Legislation Enforceable

Through Section 1988............ccccccecceececeeeeees 3

IT. The Medicaid Act Is Spending Clause

Legislation of Monumental Importance

to Millions of Americans..................cccceeeeees 7

III. Private Enforcement Through Section

1983 Is Vital to Realizing Medicaid’s

Benefits .........cccccccccccccecescceeceecceseescesseesceees 11

A. Section 1983 Actions Are a Necessary

Component of Medicaid’s Enforcement

SCHEME 1.0... eee cee eecceceeccsccsecesceeseceeeeees 12

B. The Circuits Are Well Experienced

and Adept at Identifying Whether a

Provision of Medicaid Secures an

Enforceable Right... eee ee eee 15

C. Private Enforcement of Medicaid

Provisions by physicians and Their

Medical Associations Through

Section 1983 Is Vitally Important ...... 18

CONCLUSION... eeecccceeeeeecceeeeceeeeeeeeeeaeeees 24

rH

TABLE OF AUTHORITIES

Cases

Blessing v. Freestone,

520 U.S. 329 (1997) veccccceccssssssscscsescseseeeee

Bontrager v. Ind. Family & Soc. Servs.

Admin.,

697 F.3d 604 (7th Cir. 2012) vceccccccccscseeee

Bryson v. Shumway,

308 F.3d 79 (Ist Cir. 2002)....cccccccccecseeee

BT Bourbonnais Care, LLC v. Norwood,

866 F.3d 815 (7th Cir. 2017) cceccccccccscseeee

Davts v. Shah,

821 F.3d 231 (2d Cir. 2016) ..cccccccccccscseeee

Doe ex rel. Doe v. Chiles,

136 F.3d 709 (11th Cir. 1998) ...... ee.

Doe v. Kidd,

501 F.3d 348 (4th Cir. 2007) ccccccccccsscseeee

Edelman v. Jordan,

415 U.S. 651 (1974) vecccecccccsscscscscseseesseceee

Equal Access for El Paso, Inc. v.

Hawkins,

509 F.3d 697 (Sth Cir. 2007) cccccccccccseseeee

Friends of the Earth, Inc. v. Laidlaw

Envtl. Servs. (TOC), Inc.,

528 U.S. 167 (2000) veccccccccssssecsescseseeceeeeee

Page(s)

111

Gean v. Hattaway,

330 F.3d 759 (6th Cir. 2008) .0.... cece eee eee 17

Gonzaga Univ. v. Doe,

5386 U.S. 278 (2002) oo... cec ccc eeceeeeeeeees passim

Hobbs ex rel. Hobbs v. Zenderman,

579 F.3d 1171 (10th Cir. 2009)... 17

Hunt v. Washington State Apple Adver.

Comm n, 482 U.S. 3383 (1977)... ccec cscs eee eees 22

John B. v. Goetz,

626 F.3d 356 (6th Cir. 2010) o.oo 17

King v. Smith,

392 U.S. 309 (1968) 00... cee cecc cece eee eecee eens 3, 4

Kowalski v. Tesmer,

543 U.S. 125 (2004) 0. eeceeccscceeceseeeeeeees 21

Lankford v. Sherman,

451 F.3d 496 (8th Cir. 2006) ..... 0.0 c eee 17

Long Term Care Pharm. Alliance v.

Ferguson,

362 F.3d 50 (1st Cir. 2004)... cece c cece ee es 18

Maine v. Thiboutot,

448 U.S. 1 (1980) ooo ec cec cece eccseeesceseeeeeeees 4

Mandy R. v. Owens,

464 F.3d 1139 (10th Cir. 2006) ........ ee. 17

1V

Nat Fed’n of Indep. Bus. v. Sebelius,

567 U.S. 519 (2012) ooo ccc ceecceecceeseseceeeeenens 8

N.Y. Assn of Homes & Servs. for the

Aging, Inc. v. DeBuono,

444 F.3d 147 (2d Cir. 2006)......... cece cece ees 17

Pediatric Specialty Care, Ine. v.

Arkansas Dep’t of Hum. Seruvs.,

293 F.3d 472 (8th Cir. 2002) ..... eee 17, 20

Pennhurst State Sch. & Hosp. v.

Halderman,

A451 U.S. 1 (1981) ooo eee ccccceeceeceneeeeeeens 14

Pennsylvania Psychiatric Soc. v. Green

Spring Health Servs., Inc.,

280 F.3d 278 (8d Cir. 2002)... eee ceeceecce ees 23

Romano v. Greenstein,

721 F.3d 378 (Sth Cir. 2018) oo. 15

Rosado v. Wyman,

397 U.S. 897 (1970) oo. ccc cece eeccecceecessseeeeseees 4

Sabree ex rel. Sabree v. Richman,

367 F.3d 180 (8rd Cir. 2004) 0... ee. 15, 16

Sanchez v. Johnson,

416 F.3d 1051 (9th Cir. 20085) ...... eee. 18

S.D. ex rel. Dickson v. Hood,

391 F.3d 581 (5th Cir. 2004) oo... eee 16

Sec’y of State of Md. v. Joseph H.

Munson Co., Inc.,

ABT U.S. 947 (1984) ooo eccceccceeceeeeeeseeeeees 21

Shakhnes v. Berlin,

689 F.3d 244 (2d Cir. 2012)... cece cece ees 17

Singleton v. Wulff,

428 U.S. 106 (1976) 0. eee cccc esse eeeeeeseeeeees 20

Sobky v. Smoley,

855 F. Supp. 1123 (E.D. Cal. 1994)... 14

Suter v. Artist M.,

503 U.S. 347 (1992) ooo eccecccsceeeeeecee eens 5, 6

Waskul v. Washtenaw Cnty. Cmty.

Mental Health,

979 F.3d 426 (6th Cir. 2020) 0.0... cee eeee ees 15

Watson v. Weeks,

436 F.3d 1152 (9th Cir. 2006) ................. 16, 17, 23

Westside Mothers v. Haveman,

289 F.3d 852 (6th Cir. 2002) 0... cece eee ees 23

Westside Mothers v. Olszewskt,

454 F.3d 532 (6th Cir. 2006) ........ eee eee ees 17

Wilder v. Virginia Hospital Assn,

496 U.S. 498 (1990) o.oo ee cece cece eeeee 4, 12, 22

Wright v. City of Roanoke

Redevelopment & Housing Authority,

ATO U.S. 418 (1987) .o.ec ccc ccc cccccecceecesceeseessenseees 4

Constitution, Statutes, and Regulations

U.S. Const. art. I, § 8, cl. 1 we passim

AZ U.S.C. § B00 veccccccccccesscscsscscecscsesssecavscsesessscacseseseeees 3

al

AZ ULS.C. § 18 16(a) oo. ecccccceeeeeceeeneeeeeeeeseeeneeeees 12

AZ ULS.C. § 18208-2... cc ccccceeececeteeeeeeeeeeeeeneneeeeens 6

A2 U.S.C. § 1820a-10.... 0c ccccccceeeceeeeeeeeeeeeeeeeees 6

A2 U.S.C. § 1896a(a)(8) oo. eeccccceeeeecceeeeeeeeeeeeeeens 17

A2 U.S.C. § 1896a(a)(8) «0... ccc ecceeceeeeeeeeeeeeeeees 14, 17

A2 U.S.C. § 1896a(a)(10)(A) «0... eeeccceeeeeeeeees 16, 23

42 U.S.C. § 1896a(a)(13)(A) «0. ccc c cee teeeeeeeeeeeeees 19

A2 U.S.C. § 1896 a(a)(17) 2... eeeccccceeeeceeeeeeeeeeeeeeeens 17

42. U.S.C. § 1896a(a)(80)(A) «0... eeeccceeeeeeeeeeeeeeees 17

A2 U.S.C. § 1896a(a)(87) 2... ceecccceeeeecceeeeeeeeeeeeeeens 20

A2 U.S.C. § 1896a(a)(48) oe ccceceeeecceeeeeeeeees 16, 20

A2 ULS.C. § 1896D(t) 0. ccc ceeecsccceeeeeeeceeneeceeeaeees 20

AZ ULS.C. § 18966 oo. eccccceneeeccceeeeeeeeeneeeeeeeeeeees 13

AZ U.S.C. § 1988.0. ccccecesceesceseeeenseeees passim

42 C.F.R. part 480, subpart D....... eee 13

A2 C.FLR. § 480.18 oo. ccccccsseeecceseeeeeeeenseeeeeaneees 13

A2 C.FLR. § 480.85 ooo ccccccseeecceseeeeeeenseeeeeaneees 13

A2 C.F.LR. § 480.60(a)..... cc cccccceeeeececeeeeeeeeenseeceeaeeees 13

A2 C.BFLR. § 480.74 o.oo ccccccccccccccseeeccceeeeeeeeenseeeeeaeeees 13

A2 C.F.R. § 430.76 (b).ccccccccccscccscecscscescecscsesesecavscseseeees 13

Vil

42 C.F.R. § 480.360 (a)... cece cecceecceeccseceesceeeeeeees 13

Other Authorities

2014 WL 7366055, Brief of Former HHS

Officials as Amici Curiae, Armstrong

v. Exceptional Child Center, Inc.,

Case No. 14-15 (filed Dec. 23, 2014) ............. 12, 13

Amer. Med. Ass’n Code of Medical

Ethics, Op. 1.1.1 wo... ccc eeeeeeeeeeeeees 18, 19

Amer. Med. Ass’n Code of Medical

Ethics, Op. 1.2.10 oo... cece ccecceceeceeceseeeeeees 19

Centers for Medicare & Medicaid

Services, May 2022 Medicaid and

CHIP Enrollment Trends Snapshot

C17) 7

Centers for Medicare & Medicaid

Services, Medicaid and CHIP

Beneficiary Profile: Maternal and

Infant Health (Dec. 2020).........ccecc cee ccecceceecceseeeeues 7

Chad Cotti et al., Impacts of the ACA

Medicaid expansion on health

behaviors: Evidence from household

panel data, 28 HEALTH ECON. 219

(Nov. 15, 2018) oo... ccc cece esccscceecesececeeseeeeeecs 10

Ausmita Ghosh et al., The Effect of

Health Insurance on Prescription

Drug Use Among Low-Income

Adults: Evidence from Recent Medtcaid Expansions, 63 J. HEALTH

ECON. 68 (Jan. 2019) oo... ccc ccccescceeceeceeeeeeseees 9

vill

J. Graves et al., Medicaid Expansion

Slowed Rates of Health Decline for

Low-Income Adults in Southern

States, HEALTH AFFAIRS, 39, no. 1:67

(Jan. 2020)

X1 He et al., Medicaid Expansion and

Non-alcoholic Beverage Choices by

Low-income Households, 29 HEALTH

ECON. 1827 (Aug. 3, 2020)

K. Hing et al., Acceptance of New

Patients with Public and Private

Insurance by Office-based

Physicians: United States, 2013,

National Center for Health Statistics

(March 2015),

Gracie Himmelstein, Effect of the

Affordable Care Act’s Medicaid

Expansions on Food Security,

2010-2016, 109 AM. J. PUB. HEALTH

1243 (Aug. 7, 2019)

H.R. Conf. Rep. No. 761, 103d Cong., 2d

Sess. 926 (1994)

Nicole Huberfeld, Bizarre Love Triangle:

The Spending Clause, Section 19838,

and Medicaid Entitlements, 42 U.C.

DAVIS L. REV. 413 (2008)

1X

Institute of Medicine (US) Committee

on the Consequences of Uninsurance, CARE WITHOUT COVERAGE: TOO

LITTLE, TOO LATE, National

Academies Press (2002)................00008.

Kaiser Family Foundation, Total

Monthly Medicaid/CHIP Enrollment

and Pre-ACA Enrollment (May 2022)

Johanna Catherine Maclean and

Brendan Saloner, The Effect of

Public Insurance Expansions on

Substance Use Disorder Treatment:

Evidence from the Affordable Care

Act, 38 J. POL’Y ANAL. & MGMT. 366

(Spring 2019) oo... eee ee eeeeeseeceeeees

S. Miller et al., Medicaid and Mortality:

New Evidence from Linked Survey

and Administrative Data, NATL

BUREAU ECON. RES. (Jan. 2021)... eee 10

J. Paradise, Data Note: A Large Majority of Physicians Participate in

Medicaid, Kaiser Fam. Found. (May

10, 2017)... ecccceecccceeecceeeeecceeeecenseceesnseceeeeeeneneeees 9

J. Paradise, Three Findings About Access to Care and Health Outcomes in

Medicaid, Kaiser Fam. Found. (Mar.

23, QOLT) ...ceccccesccccsecccceececcseeeceeeeeeeenseceeeeeeeeeeeees 8,9

Sara Rosenbaum, Medicaid at Forty:

Revisiting Structure and Meaning in

A Post-Deficit Reduction Act Era, 9 J.

HEALTH CARE L. & POL’Y (2006)

Sommers et al., Three-Year Impacts of

the Affordable Care Act: Improved

Medical Care and Health Among

Low-Income Adults, HEALTH

AFFAIRS, 36, no. 6: 1119 (June 2017)

T. Winkleman & V. Chang, Medicaid

Expansion, Mental Health, and

Access to Care Among Childless

Adults with and without Chronic

Conditions. J. GEN. INTERN. MED. 338,

no. 3: 876 (Mar. 2018)... ccc ccc ccc eececeese eens 10

Donald H. Zeigler, Rights, Rights of

Action, and Remedies: An Integrated

Approach, 76 WASH. L. REV. 67,

C0 0 6

INTERESTS OF AMICUS CURIAE!

The California Medical Association (“CMA”) is a

California non-profit, incorporated professional physiclan association. Founded in 1856 to develop, in the

highest possible degree, the scientific truths embodied

in the profession, CMA pursues its mission to promote

the science and art of medicine, protection of public

health, and the betterment of the medical profession

on behalf of 50,000 members, most of whom practice

medicine in all modes and specialties throughout California.

CMA and its members share the objective of promoting high quality, safe, and cost-effective health

care for the people of their state, including through

their state Medicaid program, known as Medi-Cal.

CMA, on behalf of itself and its members, believes

strongly that 42 U.S.C. § 1983 (Section 1983”) must

remain an effective means to ensure that the promises

of the Medicaid Act and other Spending Clause legislation are realized to benefit the public and patients.

INTRODUCTION

This Court should not revisit its consistent conclusion, over the past 50 years, that the enforceability of

federal statutes through Section 1983 does not depend

on whether the statutory provision at issue was

1 No counsel for a party authored this brief in whole or in

part, and no person other than the amicus curiae, its members,

or its counsel made a monetary contribution intended to fund the

preparation or submission of this brief. Counsel of record for petitioners and respondent have filed letters granting blanket

consent to the filing of amicus briefs in support of either or neither party.

enacted pursuant to Congress’ Spending Clause authority. While Section 1983's text is clear on this point,

Congress 1994 ratification of the enforceability of

Spending Clause statutes should settle any remaining

questions.

The Medicaid Act is Spending Clause legislation

that is essential to the health and wellbeing of the nation’s population. The United States Department of

Health and Human Services cannot meaningfully enforce Medicaid’s mandates on its own. Thus, private

enforcement through Section 1983 plays a critical

role.

In Blessing v. Freestone, 520 U.S. 329 (1997), and

Gonzaga Univ. v. Doe, 5386 U.S. 273, 284 (2002), this

Court provided guidance as to how courts should determine whether Congress intended particular

statutory provisions to create rights enforceable via

Section 1983. With that guidance, the lower courts are

well positioned to ascertain whether Congress intended to create enforceable rights, including in cases

brought by physicians and other Medicaid providers

(on behalf of themselves or via third party standing).

Such physicians and providers are particularly well

suited to pursue private enforcement of those Med1icaid provisions that confer important rights on

vulnerable patients and their health care providers.

This Court should preserve the critical role that private enforcement, including by Medicaid providers,

plays in fulfilling the promise of one of the country’s

most important social programs, which for decades

has delivered beneficial medical care to millions of

needy Americans.

ARGUMENT

I. Well Settled Precedents Spanning

Half a Century Have Made Rights

Established in Spending Clause

Legislation Enforceable Through

Section 1983.

The Constitution’s Spending Clause authorizes

Congress to enact legislation providing for the general

welfare. See U.S. Const. art. I, § 8, cl. 1. The Social Security Act, with Medicaid as Title IX, is one of a

number of statutes passed by Congress pursuant to

this authority. See 42 U.S.C. § 301 et seq. The civil

rights statute 42 U.S.C. § 1983 provides that “[e]very

person” acting under “color of’ state law who “subjects, or causes to be subjected,” another person “to the

deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in equity, or

other proper proceeding for redress.” 42 U.S.C. §1983

(emphasis added). Section 1983 thus provides a cause

of action to enforce rights created by Congress through

its laws, including those laws enacted pursuant to its

Spending Clause authority.

For over half a century, this Court has heeded Section 1983's plain meaning, both implicitly recognizing

and explicitly affirming that Section 1983 provides a

cause of action for private enforcement of rights created by Spending Clause legislation. As early as 1968,

in King v. Smith, the Court permitted welfare recipients enforcement of the Social Security Act’s

reasonable promptness provision via a Section 1983

cause of action. 392 U.S. 309, 333-34 (1968). Six years

later, in Edelman v. Jordan, 415 U.S. 651, 675 (1974),

this Court explicitly recognized its earlier holding in

Rosado v. Wyman, 397 U.S. 397 (1970), “that suits in

federal court under § 1983 are proper to secure compliance with the provisions of the Social Security Act

on the part of participating States.” Hdelman, 415

U.S. at 675.

This Court then held explicitly, in a case involving

a statute enacted pursuant to the Spending Clause,

that Section 1983 “means what it says” and “undoubtedly embraces” claims against state actors alleging

violation of rights grounded in federal laws such as

the Social Security Act. Maine v. Thiboutot, 448 U.S.

1, 4 (1980). Surveying a line of cases since King uv.

Smith, the Court held that such cases had resolved

“any doubt” as to Section 1983’s applicability to laws

enacted pursuant to Spending Clause legislation. Id.

at 4-6. The Court specifically observed that its “analysis in several ... cases involving Social Security Act

(SSA) claims” had “relied on the availability of a

§ 1983 cause of action.” Id. at 5.

Since Maine v. Thiboutot, the Court has regularly

reaffirmed that rights secured by Spending Clause

legislation are properly enforced through Section

1983. See, e.g., Wilder v. Virginia Hospital Ass’n, 496

U.S. 498, 521-22 (1990) (Medicaid providers can enforce a Medicaid Act right via Section 1983 and the

federal government's power to “curtail federal funds

to States whose plans are not in compliance with the

Act” does not “foreclose reliance on § 1983 to vindicate

federal rights”); Wright v. City of Roanoke Redevelopment & Housing Authority, 479 U.S. 418, 482 (1987)

(rights conferred to tenants by a provision of the federal Housing Act are enforceable under Section 1983).

Even as it has refined the analysis for determining

whether a law of Congress grants an enforceable right

to private litigants, the Court has consistently reiterated the fundamental principle that a Section 1983

cause of action 1s a proper vehicle for enforcing such

rights. See Gonzaga Univ., 536 U.S. at 284 (although

the provision at issue did not create rights enforceable

under Section 1988, noting that Ҥ 1983 generally supplies a remedy for the vindication of rights secured by

federal statutes”); Blessing, 520 U.S. at 340 (outlining

three-factor analysis for determining whether child

support provision of Social Security Act gives rise to

federal right enforceable via Section 1983); Suter v.

Artist M., 503 U.S. 347, 357-63 (1992) (analyzing

whether a Social Security Act provision regarding foster-care programs “create[ed] a federally enforceable

right ... under § 1983” and holding that it did not).

Amicus agrees with Respondent that this Court’s

prior decisions correctly read the statutory text of Section 1983. What is more, for nearly thirty years,

Congress's ratification of this Court’s precedent allowing Section 1983 enforcement of Social Security Act

rights has been eminently clear. In 1994, Congress

amended the Social Security Act in response to an aspect of the 1992 Suter decision. In holding that a

Social Security Act provision did not secure enforceable rights, Suter had considered it relevant that the

provision was contained in a statute setting forth requirements for state plans seeking federal funding.

See 503 U.S. at 863. Because many portions of the Social Security Act set forth state-plan requirements,

Suter’s approach, if extended, could have had the effect of broadly curtailing Section 1983 enforcement

actions.

Congress responded to that concern in 1994, making clear that it intended state-plan requirements

imposed in Spending Clause enactments to be

enforceable via Section 1983, by enacting legislation

specifying that a provision of the Social Security Act

“is not deemed unenforceable because of its inclusion

in a section ... requiring a State plan or specifying the

required contents of a State plan.” 42 U.S.C. §§ 1320a-

2, 1320a-10. A conference report accompanying the

amendment explained, “The intent of this provision is

to assure that individuals who have been injured by a

State’s failure to comply with the Federal mandates of

the State plan titles of the Social Security Act are able

to seek redress in federal courts to the extent they

were able to prior to the decision in Suter v. Artist M.”

H.R. Conf. Rep. No. 761, 108d Cong., 2d Sess. 926

(1994). Congress thus expressly affirmed the Court's

holdings prior to Suter that rights secured through

Spending Clause legislation such as the Social Security Act are enforceable in Section 1983 actions.”

Reversing this half-century of precedent, expressly

ratified by Congress almost three decades ago, would

disregard Congressional intent and settled expectations, without any legitimate justification. What is

more, it would have far-reaching and devastating effects on the enforcement of important Social Security

Act protections.

2 At the time of the Medicaid Act’s original enactment, courts

adhered to the “rights-remedies” principle—the notion that an

explicit cause of action need not be drafted into a statute in order

for a statutorily created right to have a remedy. See Donald H.

Zeigler, Rights, Rights of Action, and Remedies: An Integrated

Approach, 76 WASH. L. REV. 67, 71-84 (2001). It is thus unsurprising that Congress did not earlier memorialize the intent that

the Act’s provisions be enforceable through Section 1983.

IT. The Medicaid Act Is Spending

Clause Legislation of Monumental

Importance to Millions of Americans.

Over its nearly 60-year lifespan, the Medicaid Act

has arguably become the most impactful social welfare legislation in the country’s history, under the

Spending Clause or otherwise. Medicaid today covers

nearly 82 million people in the United States—approximately one in four Americans.? Medicaid

enrollment spiked by 28 percent during the COVID

pandemic (an increase of almost 18 million), with Indiana and California seeing the largest increases.4

Children make up 41 percent of the Medicaid population (33.7 million individuals). And Medicaid covers

more than 42 percent of all live births in the United

States.®

Medicaid’s footprint 1s particularly important in

the amicus’ state. Thirty-five percent (13.8 million) of

3 Centers for Medicare & Medicaid Services, May 2022 Medicaid and CHIP Enrollment Trends Snapshot, at 3 (2022),

https://www.medicaid.gov/medicaid/national-medicaid-chip-prosram-information/downloads/may-2022-medicaid-chipenrollment -trend-snapshot.pdf (last visited Sept. 21, 2022).

4 Id. at 3 and fig. 3.

5 Id. at fig. 2.

6 Centers for Medicare & Medicaid Services, Medicaid and

CHIP Beneficiary Profile: Maternal and Infant Health, at 18

(Dec. 2020), https://www.medicaid.gov/medicaid/quality-ofcare/downloads/mih-beneficiary-profile.pdf (last visited Sept. 21,

2022).

California’s 39.6 million residents are enrolled in

Medicaid.’

It is no surprise that Medicaid spending accounts

for over 20 percent of the average state’s total budget,

with federal funds covering 50 to 83 percent of those

costs. Natl Fed’n of Indep. Bus. v. Sebelius, 567 U.S.

519, 581 (2012). Medicaid’s large and continuously

srowing footprint makes it an “essential part of the

U.S. health care landscape.”®

Physician participation in Medicaid is also robust.

Nationally, nearly 70 percent of physicians accept new

Medicaid patients. In community health centers,

where low-income communities access primary care,

virtually all physicians participate in Medicaid.!°

Fourteen states have participation rates of over 85

percent, and the rate of physician participation in

7 Kaiser Family Foundation, Total Monthly Medicaid/CHIP

Enrollment and Pre-ACA Enrollment (May 2022), https://www.

kff.org/health-reform/state-indicator/total-monthly-medicaidand-chip-enrollment/?currentTimeframe=0&sortModel

=%7B%22colld%22:%22Location% (Sept. 22, 2022).

8 Sara Rosenbaum, Medicaid at Forty: Revisiting Structure

and Meaning in A Post-Deficit Reduction Act Era, 9 J. HEALTH

CARE L. & POL’Y 6 (2006).

9K. Hing et al., Acceptance of New Patients with Public and

Private Insurance by Office-based Physicians: United States,

2013, National Center for Health Statistics (March 2015),

https://www.cdc.gov/nchs/products/databriefs/db195.htm (last

visited Sept. 21, 2022).

10 J. Paradise, Three Findings About Access to Care and

Health Outcomes in Medicaid, Kaiser Fam. Found. (Mar. 23,

2017), https://www.kff.org/medicaid/issue-brief/data-note-threefindings-about-access-to-care-and-health-outcomes-in-medicaid/

(last visited Sept. 22, 2022).

Medicaid is equal to or greater than the rate of participation in private insurance in eight states.1!!

More recent scholarly treatment has focused on

the effects of Medicaid expansion under the Affordable

Care Act. Researchers have found that Medicaid expansion yielded positive changes among low-income

adults in access to health care with health outcome

improvements. That is, researchers concluded that

Medicaid coverage improved the treatment of beneficlaries chronic conditions, particularly through the

increased use of prescription medications, including

the treatment of substance use disorders.!* Medicaid

expansion also has been associated with improved

self-reported health, with earlier care, and with 1mproved surgical outcomes.!? Extending Medicaid

11 Jd.; J. Paradise, Data Note: A Large Majority of Physicians

Participate in Medicaid, Kaiser Fam. Found. (May 10, 2017),

https://www.kff.org/medicaid/issue-brief/data-note-a-large-majority-of-physicians-participate-in-medicaid/ (last visited Sept.

21, 2022).

12 Ausmita Ghosh et al., The Effect of Health Insurance on

Prescription Drug Use Among Low-Income Adults: Evidence from

Recent Medicaid Expansions, 63 J. HEALTH ECON. 63, 64 (Jan.

2019); Johanna Catherine Maclean and Brendan Saloner, The

Effect of Public Insurance Expansions on Substance Use Disorder

Treatment: Evidence from the Affordable Care Act, 38 J. POL’Y

ANAL. & MGMT. 366 (Spring 2019).

13 Sommers et al., Three-Year Impacts of the Affordable Care

Act: Improved Medical Care and Health Among Low-Income

Adults, HEALTH AFFAIRS, 86, no. 6: 1119, 1124 (June 2017),

https://www.healthaffairs.org/doi/10.1377/hlthaff.2017.0293

(last visited Sept. 21, 2022) (Medicaid expansion “associated with

significant improvements in access to primary care and medications, affordability of care, preventive visits, screening tests, and

self-reported health’); J. Graves et al., Medicaid Expansion

Slowed Rates of Health Decline for Low-Income Adults in

10

coverage to more Americans is associated with substantial improvements in mental health among lowincome adults with chronic conditions. Finally, new

data suggests that Medicaid expansion reduced mortality rates among low-income adults.15

Due to improved health outcomes and health care

coverage, states that expanded Medicaid under the Affordable Care Act saw improvements in the overall

wellbeing of their residents. Researchers associated

Medicaid expansion with a significant reduction in

food insecurity.!© Studies have also found Medicaid

beneficiaries improved their dietary habits and reduced risky health behaviors, such as smoking. !?”

Researchers have repeatedly found that Medicaid

programs are effective in promoting healthier lives.

Southern States, HEALTH AFFAIRS, 39, no. 1:67 (Jan. 2020),

https://www.healthaffairs.org/doi/abs/10.1377/hlthaff.2019.

00929?journalCode=hlthaff (ast visited Sept. 21, 2022).

14'T. Winkleman & V. Chang, Medicaid Expansion, Mental

Health, and Access to Care Among Childless Adults with and

without Chronic Conditions. J. GEN. INTERN. MED. 33, no. 3: 376,

380 (Mar. 2018), https://www.ncbi.nlm.nih.gov/pmc/articles/

PMC5834959/ pdf/11606_2017_Article_4217.pdf (ast visited

Sept. 22, 2022).

158. Miller et al., Medicaid and Mortality: New Evidence from

Linked Survey and Administrative Data, NATL BUREAU ECON.

RES. at 2-3 (Jan. 2021), https://www.nber.org/system/files/working_papers/w2608 1/w26081.pdf (last visited Sept. 21, 2022).

16 Gracie Himmelstein, Effect of the Affordable Care Act’s

Medicaid Expansions on Food Security, 2010-2016, 109 AM. J.

PUB. HEALTH 1248 (Aug. 7, 2019).

17 Xi He et al., Medicaid Expansion and Non-alcoholic Beverage Choices by Low-income Households, 29 HEALTH ECON. 1327

(Aug. 3, 2020); Chad Cotti et al., Impacts of the ACA Medicaid

expansion on health behaviors: Evidence from household panel

data, 28 HEALTH ECON. 219 (Nov. 15, 2018).

11

Studies have disclosed increases in health outcomes

in uninsured populations versus those with any

health insurance coverage, specifically in the areas of

primary prevention and screening services, cancer

care, chronic disease management (e.g., diabetes, hypertension, end-stage renal disease, HIV disease, and

mental illness), hospital-based care, and overall mortality and general measures of health status.18 Thus,

not only is Medicaid a program relied upon by millions

of Americans, but the benefits it brings to those Americans lives result in a country that is healthier overall.

IlI. Private Enforcement Through Section

1983 Is Vital to Realizing Medicaid’s

Benefits.

With so much at stake for so many, it 1s crucial that

Medicaid works as designed by Congress so that its

intended benefits can be realized. Since the program’s

inception, and as expressly approved of by Congress,

private enforcement has been a critical tool for ensuring that Medicaid works as designed and in fact

delivers on the policy goals behind the Act’s provisions, in the form of real health benefits for America’s

most vulnerable.

18 [Institute of Medicine (US) Committee on the Consequences

of Uninsurance, CARE WITHOUT COVERAGE: TOO LITTLE, TOO

LATE, National Academies Press (2002) at 47, https://nap.nationalacademies.org/catalog/10367/care-without-coverage-toolittle-too-late (last visited Sept. 21, 2022).

12

A. Section 1983 Actions Are a Necessary

Component of Medicaid’s Enforcement

Scheme.

The Medicaid program is a “classic example of cooperative federalism”’!® whereby “the Federal

Government provides financial assistance to States so

that they may furnish medical care to needy individuals. [citation] Although participation in the program

is voluntary, participating States must comply with

certain requirements imposed by the Act and regulations promulgated by the Secretary of Health and

Human Services.” Wilder, 496 U.S. at 502.

The U.S. Department of Health and Human Services (“HHS”) has sole responsibility to review and

approve state plans and amendments pursuant to 42

U.S.C. § 1316(a). Even aside from HHS’s well-documented serious resource limitations,?° the statutory

process does not provide HHS with sufficient tools, nor

does it provide beneficiaries or providers with adequate avenues to intervene, to prevent state violations

of the Medicaid Act. That makes sense, because Conseress contemplated that private enforcement would

play a supplementary role.

HHS’s oversight of state compliance with Medicaid

Act requirements is limited. After a state Medicaid

plan is approved, HHS cannot retract such approval

or order amendments to the plan; rather, HHS may

19 Nicole Huberfeld, Bizarre Love Triangle: The Spending

Clause, Section 1988, and Medicaid Entitlements, 42 U.C. DAVIS

L. REV. 418, 419 (2008).

20 See 2014 WL 7366055, Brief of Former HHS Officials as

Amici Curiae, Armstrong v. Exceptional Child Center, Inc., Case

No. 14-15 (filed Dec. 28, 2014), at *14-17.

13

only withhold federal financial participation to a state

in whole or in part if HHS determines that the Medicaid state plan or its implementation by a Medicaid

state agency violates Medicaid laws. See 42 U.S.C. §

1396c. A state may appeal such action by HHS pursuant to 42 C.F.R. part 430, subpart D, which “sets forth

the rules for hearings to States that appeal a decision

to disapprove State plan material (under § 430.18) or

to withhold Federal funds (under § 430.35), because

the State plan or State practice in the Medicaid prosram is not in compliance with Federal requirements.” 42 C.F.R. § 480.360(a). Such appeals can take

years to resolve.

Moreover, there is no means for any interested or

affected private party to initiate a hearing or define

the issues to challenge a state Medicaid plan or a state

Medicaid agency’s noncompliance with Medicaid laws.

Interested private parties may apply to be recognized

as a party to a pending administrative proceeding, but

lack any power over the issues to be decided in the

matter and cannot raise issues not formally initiated

by HHS or the appealing state agency. See 42 C.F.R.

$§ 430.60(a), 430.74. Associational standing and third

party standing are not allowed. Only individuals or

sroups that have suffered injury and have interests

within the zone of interests to be protected by the governing Medicaid provision may serve as parties. Id. §

430.76(b).

This structure creates two very serious enforcement problems on top of HHS’s resource limitations.

First, HHS’s only means for enforcement—the withholding of funds from noncompliant states—

“ultimately does not punish the state, but the very

people the Medicaid Act is meant to benefit” by “depriving the poor of essential medical assistance.” Br.

14

of Former HHS Officials, supra note 20, at *17-18; see

also Pennhurst State Sch. & Hosp. v. Halderman, 451

U.S. 1, 52 (1981) (White, J., dissenting) (explaining

that, as “a funds cutoff is a drastic remedy with injurious consequences to the supposed beneficiaries of

the Act,” an agency’s ability to withhold funds should

not necessarily foreclose a private right of action).

Second, those who are most affected by and thus

intimately familiar with a state’s Medicaid noncompliance—that is, program beneficiaries and program

providers—lack effective administrative mechanisms

to bring instances of Medicaid noncompliance to

HHS’s attention, to initiate any administrative enforcement, or even to participate in administrative

proceedings that are underway. Were enforcement actions by HHS the only means of enforcing Medicaid’s

provisions, a range of Medicaid violations would undoubtedly go unaddressed.

The availability of Section 1983 as a vehicle for private enforcement has served as a remedy to these two

problems since Medicaid’s inception. Important protections for Medicaid beneficiaries have been

vindicated only through private enforcement in the

federal courts via Section 1983. Thus, for example,

private parties have enforced the Act’s mandate that

“medical assistance ... be furnished with reasonable

promptness,’ 42 U.S.C. §§ 1896a(a)(8), to prevent

states from denying medically necessary services for

budgetary reasons by placing eligible individuals onto

waitlists. See, e.g., Sobky v. Smoley, 855 F. Supp.

11238, 1148 (E.D. Cal. 1994); see also Doe ex rel. Doe v.

Chiles, 1386 F.3d 709, 717 (11th Cir. 1998) (reasoning

15

that delays of several years would be “far outside the

realm of reasonableness’ ).?!

Over half a century since the Act’s adoption, Section 1983 actions remain in most cases the sole avenue

for entities other than HHS to enforce the Act’s provisions and prevent violations that impinge upon

individual rights. And they are the only means of enforcement that can provide a direct remedy to harmed

beneficiaries, rather than effect a second harm to

those beneficiaries through the withholding of Medicaid funds to noncompliant states.

B. The Circuits Are Well Experienced and

Adept at Identifying Whether a Provision

of Medicaid Secures an Enforceable Right.

In Blessing v. Freestone and Gonzaga Univ. v. Doe,

this Court provided guidance as to how the lower

courts should ascertain whether Congress intended a

particular statutory provision to be enforceable via

Section 1983. Blessing established a three-part test:

“First, Congress must have intended that the provision in question benefit the plaintiff. Second, the

plaintiff must demonstrate that the right assertedly

protected by the statute is not so ‘vague and amorphous’ that its enforcement would strain judicial

competence. Third, the statute must unambiguously

21 Other circuit courts have similarly held this “reasonable

promptness” provision to be privately enforceable through Section 1983. See Waskul v. Washtenaw Cnty. Cmty. Mental Health,

979 F.3d 426, 448 (6th Cir. 2020); Romano v. Greenstein, 721 F.3d

373, 377 (5th Cir. 2013); Doe v. Kidd, 501 F.3d 348, 357 (4th Cir.

2007); Sabree ex rel. Sabree v. Richman, 367 F.3d 180, 189 (8rd

Cir. 2004); Bryson v. Shumway, 308 F.3d 79, 88-89 (1st Cir.

2002).

16

impose a binding obligation on the States.” 520 U.S.

at 340 Gnternal citations omitted).

The first prong of the test is particularly demanding, and Gonzaga’s guidance especially instructive: As

the Court explained, when a provision’s “text [is]

phrased in terms of the persons benefited,” that indicates that Congress intended to convey a private right

to those persons. 5386 U.S. at 284 Gnternal quotation

omitted). Such phrasing is not easily shown: “anything short of an unambiguously conferred right” does

not “support a cause of action brought under” Section

1983. Id. at 283. Only Congress’s use of explicit

“rights-creating[,|] .... individually focused terminology’ that confers rights upon an “identifiable class

suffices to establish an actionable right. Id. at 283-84,

287 Gnternal quotations omitted).

999

Thus, for almost three decades, lower courts have

had the benefit of this Court’s guidance that the statutory text is the key to deciding whether Congress

intended that a particular provision be enforceable. In

most cases, the lower courts have generally been in

agreement about particular provisions, including provisions aimed directly at promoting health and access

to care. For example, there is consensus that 42 U.S.C.

§ 1396a(a)(10)(A), which requires states to provide

medical assistance to all individuals who fall within

the categorically eligible groups, has been held enforceable under Section 1983 by the circuits that have

considered that question. See Bontrager v. Ind. Family

& Soc. Servs. Admin., 697 F.3d 604, 607 (7th Cir.

2012); Watson v. Weeks, 486 F.3d 1152, 1159-61 (9th

Cir. 2006); S.D. ex rel. Dickson v. Hood, 391 F.3d 581,

604-06 (5th Cir. 2004); Sabree, 367 F.8d at 189-92.

Similarly, both circuits that have decided the issue

have held that 42 U.S.C. § 1396a(a)(43), which

17

requires states to provide access to early and periodic

screening, diagnosis, and treatment (EPSDT”) services to individuals under age 21, agree that the

provision can be privately enforced. See John B. v.

Goetz, 626 F.3d 356, 363 (6th Cir. 2010); Pediatric

Specialty Care, Inc. v. Arkansas Dep’t of Hum. Servs.,

293 F.3d 472, 479 (8th Cir. 2002); see also, e.g., Shakhnes v. Berlin, 689 F.3d 244, 250-51 (2d Cir. 2012) (42

U.S.C. §13896a(a)(8) (requirement of “fair hearing” is

enforceable via Section 1983); Gean v. Hattaway, 330

F.3d 759, 772-73 (6th Cir. 2003) (Same); supra note 21

(circuits holding reasonable promptness provision, 42

U.S.C. § 1896a(a)(8), creates a right enforceable

through Section 1983).

By contrast, the Act’s requirement that services be

allocated using “reasonable standards,” 42 U.S.C. §

1396a(a)(17), has been held by the circuits that have

considered the question not to be enforceable by Medicaid beneficiaries or providers. See Davis v. Shah, 821

F.3d 231, 244 (2d Cir. 2016); Hobbs ex rel. Hobbs v.

Zenderman, 579 F.3d 1171, 1182 (10th Cir. 2009);

Lankford v. Sherman, 451 F.3d 496, 509 (8th Cir.

2006); Weeks, 436 F.3d at 1162-63. And after Gonzaga,

the circuit courts have unanimously rejected private

actions to enforce the Act’s directive that provider payments be set by methods that ensure they “are

consistent with efficiency, economy, and quality of

care and are sufficient to enlist enough providers’ to

make medical care equally available to Medicaid beneficiarles as in the private sector, 42 U.S.C. §

1396a(a)(80)(A). See, e.g., Equal Access for El Paso,

Inc. v. Hawkins, 509 F.3d 697, 704 (5th Cir. 2007);

Mandy R. v. Owens, 464 F.3d 1139, 1148 (10th Cir.

2006); Westside Mothers v. Olszewski, 454 F.3d 5382,

542-43 (6th Cir. 2006); N.Y. Ass’n of Homes & Servs.

18

for the Aging, Inc. v. DeBuono, 444 F.3d 147, 148 (2d

Cir.2006) (per curiam); Sanchez v. Johnson, 416 F.3d

1051, 1059-61 (9th Cir. 2005); Long Term Care Pharm.

Alliance v. Ferguson, 362 F.3d 50, 59 (1st Cir. 2004).?2

This Court’s test for determining the availability of

private enforcement via Section 1983 starts from the

presumption that the statutory text offers the best indication of Congressional intent. Based on that

instruction, the lower courts have sorted those statutory provisions that Congress meant to convey

enforceable rights from those it did not. There is no

reason for this Court to now override that test and

hold that a provision’s inclusion in an enactment pursuant to the Spending Clause authority somehow

negates Congressional intent to convey an enforceable

right.

C. Private Enforcement of Medicaid

Provisions by Physicians and Their

Medical Associations Through Section

1983 Is Vitally Important.

A physician’s relationship with patients is founded

upon the art and practice of medicine, which “is fundamentally a moral activity that arises from the

imperative to care for patients and to alleviate suffering.”23 Such a relationship “is based on trust, which

sives rise to physicians’ ethical responsibility to place

22 The First Circuit reversed its earlier holding that this provision was enforceable after the benefit of this Court’s guidance

in Gonzaga. See Long Term Care Pharm. Alliance, 362 F.3d at

59.

23 Amer. Med. Ass'n Code of Medical Ethics, Op. 1.1.1,

https://www.ama-assn.org/delivering-care/ethics/patient-physician-relationships (last visited Sept. 21, 2022).

19

patients’ welfare above the physician’s own self-interest or obligations to others, to use sound medical

judgment on patients’ behalf, and to advocate for their

patients’ welfare.”24 “Indeed, physicians have an ethical responsibility to seek change when they believe the

requirements of law or policy are contrary to the best

interests of patients.”25 These ethical principles explain why physicians seek to enforce Medicaid

provisions not only on their own behalf but also on behalf of their patients. In many cases, physicians and

their medical associations are particularly well positioned to enforce the Act’s protections through Section

1983.

In some cases, physicians or other providers may

be the intended beneficiaries of a Medicaid provision

that is phrased in rights-creating language and meets

the other requirements set forth in Blessing and Gonzaga. For example, in BT Bourbonnais Care, LLC v.

Norwood, 866 F.3d 815, 822-23 (7th Cir. 2017), the

Seventh Circuit held that Medicaid providers (in that

case, nursing home operators) were the intended beneficiaries of 42 U.S.C. § 13896a(a)(13)(A)’s requirement

that states engage in a public process (with full noticeand-comment rights afforded to providers) when setting reimbursement rates. The court explained that

Congressional amendments to the provision meant

that providers no longer enjoyed a substantive right

to certain rates, but noted the importance of the procedural rights conveyed by the amended provision

because “providers may bring information to the

24 Td.

25 Amer. Med. Ass’n Code of Medical Ethics, Op. 1.2.10,

https://www.ama-assn.org/delivering-care/ethics/political-action-physicians (last visited Sept. 21, 2022).

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