# Amicus Curiae Brief — Douglas v. California Pharmacists Association, (2009) (No. 1158)

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA43085015_0577%3A18

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2009

## Text

TOBY DOUGLAS, Director, California Department
of Health Care Services,
Petitioner,
Vv.
INDEPENDENT LIVING CENTER OF SOUTHERN
CALIFORNIA, INC., et ai.,
Respondents.

TOBY DOUGLAS, Director, California Department
of Health Care Services,
Petitioner,
v.
CALIFORNIA PHARMACISTS ASSOCIATION, INC., et al.,
Respondents.

TOBY DOUGLAS, Director, California Department
of Health Care Services,
Petitioner,
Vv.
SANTA ROSA MEMORIAL HOSPITAL, et ai.,

Respondents.

On Writs of Certiorart To The United States Court
of Appeals For the Ninth Circuit

Brief of Amici Curiae AARP, Families USA, et al.,
Complete list of Amici and additional Counsel on Inside Cover

Jane Perkins

(Counsel of Record)

National Health Law Program
101 E. Weaver St., # G-7
Carrboro, NC 27510
perkins@healhtlaw org

(919) 968-6308

Library of Congress
Law Library

Complete itst of Amici Curiae

AARP, Families USA, National Legal Aid and
Defenders Association, National Health Law
Program, National Disability Rights Network,
Center for Medicare Advocacy, First Focus, Voices
for America’s Children, Children’s Dental Health
Project, National Center for Youth Law, National
Housing Law Project, National REACH Coalition,
Disability Rights Legal Center, American Network
of Community Options and Resources, Planned
Parenthood Federation of America, Nationa!
Family Planning & Reproductive Health
Association, National Latina Institute for
Reproductive Health, Black Women’s Health
Imperative, National Asian Pacific American
Women’s Forum, Asian & Pacific Islander American
Health Forum in Support of Respondents

Byron J. Gross Stacy Canan

National Health Law AARP Foundation
Program Litigation

3701 Wilshire Blvd., Michael Schuster
Suite 750 AARP

Los Angeles, CA 90010 601 E Street, NW
gross@healthlaw org Washington, DC 20049
(310) 204-6010 scanan@aarp.org

(202) 434-2060

Barbara Jones

AARP Foundation
Litigation

200 S. Los Robles, #400
Pasadena, CA 91101
bjones@aarp.org

(626) 585-2628

Counsel for Amici Curiae

—_—-—- - — ——— oe
——————

OSS

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i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................... tcicedirebeuutls ii
INTEREST OF AMICI CURIALE .................-.0-2-00-2000- l
SUMMARY OF ARGUMENT ........... ATE LM Se nts)
PEPIN wick svednncssscsecacesse> ie bmcidaa tiaeustehdeaesitane teiacbiideed 7
I. The History And Purpose Of Medicaid

Show The Need For Private Enforcement ....... 7
Il. California’s Across-The-Board Medicaid

Rate Cuts Are Incompatible With And

Effectively Nullify The Equal Access

Provision Of The Social Security Act ............. 12

Ill. The Supreme Court Has Consistently
Recognized That Program Beneficiaries Can
Enjoin State Laws That Are Invalid Under
The Supremacy Clause, And Congress Has
Ie I ID oiccevccttscenanccimnadakeniinntsce 16

IV. The Medicaid Act’s Statutory Scheme Is Not
Inconsistent With The Need For Private
Enforcement Of The Supremacy Clause To
Prevent State Medicaid Officials From
Acting Contrary To Federal Law

CONCLUSION ............. dbaididuidhiendedeidaniiidea abeenisesruedin 25

il
TABLE OF AUTHORITIES
CASES

Almenzares v. Wyman,
$e p - ff RR. y | RRonererennnmennree 24

Ariz. Dep’t of Pub. Welf. v. Dep’t of Health,
Educ. & Welf.,
440 F.38 456 (th Cir. 1971) ........0.22.00..2.0602..2. 24-25

Ark. Dept. of Health & Human Servs. v. Ahlborn,

Ne ee di el eu euamedsiele 17
Bennett v. Arkansas,

fo} |, ER ETE enero nonin nner anne 16
Blum v. Bacon,

ee Se ID nei cinco signipdnentadanebignmembens 16
Carleson v. Remillard,

4c h & -, __. . SERRIESererenne em onnnrE ser” 17
Chisholm v. Hood,

110 F. Supp. 2d 499 (E.D. La. 2000)..................... 23
City of Rancho Palo Verdes v. Abrams,

ee OD piace pumnarneemananaboanainianniags 20

Clayworth v. Bonta,
295 F. Supp. 2d 1110, (E.D. Cal. 2003)
(9th Cir. 2005) reu’d on other grounds
140 Fed. App’x 677 (9th Cir. 2005)....................... 14

il

Concourse Rehab. & Nursing Ctr., Inc. v. Whalen,

ff B43: fe |: ee eenerererees 17
Dalton v. Little Rock Family Planning Services,

Sf fb | RG ee Ree ones ee 17
Elizabeth Blackwell Health Ctr. for Women v. Knoll,

ee ee NG Bi icvcncdccsivechndescmisnsccenss 17
Equal Access for El Paso, Inc. v. Hawkins,

ee re Ce a, BOD once nvictncncnseccntccecsacscosece 12
Gonzaga Univ. v. Doe,

Ss lumenanbioa 3, 33
Hern v. Beye,

ee | fel Ve 3) ) 18

Lankford v. Sherman,
ee Be re ee ee BD ocntvcdca ccdcokesecaccucvscosedsse 18

Lewis v. Hegstrom,
og & 2 5% Lt a | ramones 18

N.Y. State Dep’t of Social Servs. v. Dublino,
at as 16-17

Pediatric Specialty Care v. Ark. Dep’t of
Human Servs., 443 F.3d 1015
Se I, Sails ccirnciten siestieiatindacnsicncinapmabiddacsnemien 11

PhRMA, v. Concannon,
fe i fe Ue a | ER Ree eer 17

iv

PhRMA uv. Walsh,

I Un a 17, 23
Planned Parenthood Affiliates of Mich. v. Engler,

Fee ee re ee Cas I ei nivitvnece ncn nicceseseseinicceses 18
Planned Parenthood Fed’n v. Heckler,

712 F.2d 660 (D.C. Cir. 1963) ...............00....02....0 18
Planned Parenthood of Hous. & Se. Tex. v. Sanchez,

403 F.3d 324 (Sth Cir. 2005) .........2.0.....0.....020..00000 18
Randall v. Lukhard,

729 F.2d 966 (4th Cir. 1984) (en banc)........... 17, 18
Rosado v. Wyman,

eS EE IE wnaicuncsiivisttiusinnssabuncaedacetninctbapbetin 24
Schwetker v. Gray Panthers,

ee CD pietincrirssinacccesonsanaccbicdbecustenesereets 10
Selig v. Pediatric Specialty Care,

I er ha a oc cn asesieneiindind 11
Suter v. Artist M.,

Se A Ig cccicenncsiesinnesuseieeinnedonccesens 18, 19

Townsend v. Swank,
ee I ie eee ee 16

Va. Office for Prot. & Advocacy v. Stewart,
Be eG A Ti cciscecitsdinctncnssacenspechvecivivaccius 21

Wilder v. Va. Hosp. Ass'n,
Se i ict chicas bodes ecanenrnisceducenenaiec’ 20, 25

Zbaraz v. Quern,
Fe ee a Pee Ge FO wicchicdininicisiccsecsstcssssenss 18

STATUTES AND REGULATIONS

TE” REE clase ees beaks Mine ererene tT 18
Social Security Act

a calc el aa eel 24
ee I eo ccsccicnskbidasasnseasbdecseiouss 18, 19, 20
eS EE Be re ivcedencibidicncessicnsaceniccecss 18, 19, 20
Se I kd ccccsskictaidteinnnsinaiastanenteasacdeten 25
1 Oe I caacaiehcttsik tednedenecinctrestesnbuicts 10
GE Ek BB csesissisisiccicvcsessscecesscceccscs 10
42 U.S.C. § 1396a(aX30MA) ........ 02.0. passim
a Oe I aetna cid ctithcntbcivccecccesncs Cesncuasgiai 20, 24
ee. ee SINE ab os isciinenscastecsacnonisidasdoveniea 7
1 ee eI ca tairechi neidodiscnisctiisintaeennesibaa 11, 12, 18, 22
le ee I aivdatntncaccnccsiniersstviniesaseniis 24
ith cdeniccscnigsaniinbesncieniiiathidie ond
ee eI iis icuinnintiedsicinsexessaevdcieinionnotenieatla 24
76 Fed. Reg. 26342 (May 6, 2011) ............cc000000+- 12, 21
76 Fed. Reg. 26343 (May 6, 2011) .........ccccccssscesee 12

Administrative Procedure Act
a acu snctainednamiooapanebaeei 23

Social Security Amendments of 1965,
Pub. L. No. S9-97, 79 Stat. 266 (July 30, 1965).....8

vi
LEGISLALTIVE HISTORY

Karen Davis, Testimony before U.S. Senate,
Special Comm. on Aging, The Commonwealth
Fund, Time for Change: The Hidden Cost
of a Fragmented Health Insurance System
(2003), http://www.commonwealthfund.org/
publications/publications_show.htm?doc_id

TE iciaid sntacinsineraisiakuinbessscentibnuiiinbiid elibaeisaieanes

H.R. Conf. Rep. No. 761 , 103d Cong., 2d Sess..,
(1994) reprinted in 1994

NEE NN: CIEE Sicitaoh Zavshsin kstacosiannbeqstnerenincsicensees

OTHER AUTHORITIES

Joanna Bisgaier & Karin V. Rhodes,
Auditing Access to Specialty Care for
Children with Public Insurance,

364 N. Eng. J. Med. 2324 (Jun. 16, 2011)..........

Stan Dorn, Urban Inst., Uninsured and Dying
Because of It: Updating the Institute of
Medicine Analysis on the Impact of
Uninsurance on Mortality (2008),
http://www.urban.org/UploadedPDF/

411588 _uninsured_dying.pdf................... ssccaemues

Martin Espinoza, Dental Care Called a
Health Care Crisis, Press Democrat
(Santa Rosa, Cal.) June 16, 2011,
http://www.pressdemocrat.com/article/
20110616/ARTICLES/110619585?p=
SE abiidccis er paspantdianedihinigernmmeeiei Geaneaee oe

Vil

Jack Hadley, Kaiser Comm’n on Medicaid
and the Uninsured, Sicker and Poorer:
The Consequences of Being Uninsured (2002),
http://www.kff.org/uninsured/upload/Full-

IIE siitstciai sdasainsdeabiine-itemaslininssaciuninictesatcodiadsx!s we camsat

Evan Halper, Further Fee Cuts Force
a Medi-Cal Exodus: Doctors are Rejecting
New Patients, L.A. Times, Mar. 24, 2008,

ee ee ith sinicadascenssieaisassinasiienke 13, 14

Duane W. Gang, Riverside County Threatens
to Pull Out of Medi-Cal Mental Health
Program, The Press Enterprise
(Riverside, Cal.), Apr. 1, 2008,
http://www.pe.com/localnews/healthcare/
stories/PE_News_Local_H_

IDLE ATC AIT

Guttmacher Inst., Women of Reproductive
Age Hit Hard by Recession,
New Census Data Show (2010), http://www.
guttmacher.org/media/inthenews/

a

Kaiser Comm’n on Medicaid & the Uninsured,
Medicaid Matters: Understanding Medicaid’s
Role in Our Health Care System
(Mar. 2011) http://www.kff.org/

medicaid/upload/8165.pdf........0000.0... 9, 10,

1]

Vili

Kaiser Comm’n on Medicaid & the Uninsured,
Top 5 Things to Know about
Medicaid (2011) http://www.kff.org/
SUOCCRAG IORI RTI oocis nese csccccscccssecccssscessess is)

National Health Law Program, Update on
Private Enforcement of the Medicaid Act
Pursuant to 42 U.S.C. § 1983 (June 2011)
http://www.healthlaw.org...........................6....6.. 11

Julia C. Prentice & Steven D. Pizer,
Delayed Access to Health Care and Mortality, 42
Health Services Res. 644-62 (2007) ................... 13

Rand E. Rosenblatt et al., Law and the
American Health Care System 415 (1997)........... 8

Andy Schneider et al., The Kaiser Comm’n on
Medicaid and the Uninsured,
The Medicaid Resource Book
clang iiidiailed sins aameaud onus 9,10, 11

David L. Skaggs et al., Access to Orthopedic
Care for Children With Medicaid Versus
Private Insurance in California
JOT Petites 1OGG CHG) cccsccccccicccccccccccsccceccossss 14

David L. Skaggs et al., Access to Orthopedic
Care for Children With Medicaid Versus
Private Insurance: Results of a National
Survey, 26 J. Ped.
Orthopaedics 400 (200G)...........cccercccssccsscssccessceses 12

1x

U.S. Dep’t of Health, Educ., and Welfare,
Handbook of Public Assistance Administration
SF EPR BMS Bas BO, GIG vivnccccivececccccseosseccccsws <a
Edward C. Wang et al., Inequality of
Access to Surgical Specialty Health Care:
Why Children With Government-Funded
Insurance Have Less Access Than Those with
Private Insurance in Southern California,
AUG POGRRNTIS BOE CIE). ooccccccccscccccsccccccccccesescs 14

Stephen Zuckerman, Amy Williams & Karen
Stockley, Cal. HealthCare Found., Medi-Cal
Physician and Dentist Fees: A Comparison

to Other Medicaid Programs and Medicare

23 (Apr. 2009) http://www.chcf.org/~/media
/MEDIA%20LIBRARY%20Files/PDF/M/
PDF%20MediCalFeeComparison.pdf ........... 13, 14

MISCELLANEOUS

Statement of Interest of the United States
of America, John B. v. Emkes, Feb. 18, 2011
(M.D. Tenn. No. 3-98-0168)............00000..0.000000000. 22

Statement of Interest of the United States,
Planned Parenthood of Indiana, Inc. v.
Commissioner of the Ind. State Dept.
of Health, June 16, 2011
(S.D. Ind. No. 1:11-cv-00630-TWP-DKL)........... 22

x

Brief for the United States as Amicus Curiae
Supporting Petitioner, Douglas v. Indep.
Living Ctr. of S. Cal. et al. (May 2011)
(Nos. 09-958, 09-1158, and 10-283)............... 19, 21

Brief for the United States as Amicus Curiae,
Maxwell-Jolly v. Indep. Living Ctr. of S. Cal.,
572 F.3d 644 (9th Cir. 2009) on petition for cert
Ne eee iibendeniadel 21, 23

Brief for the United States as Amicus Curiae
Supporting Petitioner Blessing v. Freestone,
520 U.S. 329 (1997XK No. 95-1441) 2.00000... 23

]

INTEREST OF AMICI CURIAE'!

Amici are organizations committed to serving
the needs of low-income persons, including older
Americans, individuals with disabilities, children,
and women of child-bearing age. Amici’s work
involves promoting public awareness of the
disproportionate need for health care and barriers to
care experienced by these populations and
advocating for their interests and legal rights. It is
in this last capacity that amici submit this Brief,
asking the Court to affirm the decisions below.

AARP is a_ non-partisan, non-profit
membership organization for people 50 and over.
AARP advocates for health and economic security for
everyone and in particular for vulnerable people of
all ages, including low-income people and persons
with disabilities. AARP supports access to and
expansion of quality health care through publicly
administered health insurance programs, including
Medicaid, an essential safety net program that
provides coverage to people who would otherwise be
denied health care. To further that end, Medicaid
recipients’ access to the courts to challenge the
denial of Medicaid services is critical. Families
USA is the national, nonprofit and nonpartisan
organization for health care consumers, dedicated to
the achievement of high-quality, affordable health

' No counsel for a party authored this brief in whole or in part
or made a monetary contribution to fund the preparation or
submission of this brief. No persons other than the amici, their
members or their counsel made such a monetary contribution.
The parties consented to the filing of this brief.

2

coverage and care for all Americans. For the past 29
years, Families USA has led various coalition efforts
to protect and expand health coverage for low-
income families, including the National Medicaid
Coalition that it chairs.

The National Legal Aid and Defenders
Association is the largest organization in the
United States dedicated solely to securing equal
justice for the disadvantaged in the civil and
criminal justice systems. NLADA members
represent thousands of families in need of adequate
health care and access to the courts. The National
Health Law Program is a 40-year-old public
interest law firm that works to advance access to
quality health care and protect the legal rights of
low-income and underserved people. The National
Disability Rights Network (NDRN) is the non-
profit membership association of protection and
advocacy (P&A) agencies that are located in all 50
States, the District of Columbia, Puerto Rico, and
the U.S. Territories. For 30 years, P&As have
worked with children and adults with disabilities
who depend on Medicaid-funded services and
supports to enable them to live in the community
rather than in institutions. Founded in 1986, the
Center for Medicare Advocacy is a non-profit
public interest law organization that represents
older and disabled people throughout the United
States. The Center works to advance fair access to
Medicare, Medicaid and quality health care through
individual representation, education, policy analysis,
administrative advocacy, and litigation.

First Focus is a bipartisan advocacy
organization that is committed to making children
and families a priority in federal policy and budget
decisions. In all of its work, First Focus strives to
ensure that every child in America has access to the
high quality, comprehensive, affordable health care
they need to grow up to become healthy and
productive adults. For over 25 years, Voices for
America’s Children, the nation’s largest network
of multi-issue child advocacy organizations, has
directly advocated for full implementation of the
Medicaid Act, in order to improve access to high-
quality, age-appropriate health care for all children
in need. The Children’s Dental Health Project is
a national non-profit organization with the mission
of creating and advancing innovative solutions to
achieve oral health for all children so that they reach
their full potential. The National Center for
Youth Law (NCYL) is a private, non-profit
organization devoted to using the law to improve the
lives of poor children nation-wide. For almost 40
years, NCYL has worked to protect the rights of low-
income children and to ensure that they have the
resources, support and opportunities they need to
become self-sufficient adults. Amicus National
Housing Law Project is a charitable nonprofit
corporation established in 1968 whose mission is to
use the law to advance housing justice for low-
income people by increasing, preserving and
improving the supply of decent, affordable housing;
by expanding and_ enforcing tenants’ and
homeowners’ rights; and by increasing housing
opportunities for people protected by fair housing
laws. The National REACH Coalition was

4

established in 2004 to challenge community and
faith-based organizations, public health agencies and
academic institutions working with and _ in
marginalized communities to find effective strategies
and community-based interventions to eliminate
inequities in health.

The Disability Rights Legal Center
(DRLC) is a non-profit legal organization that was
founded in 1975 to represent and serve people with
disabilities. The DRLC assists people’ with
disabilities in attaining the benefits, protections and
equal opportunities guaranteed to them under the
Rehabilitation Act of 1973, the Americans with
Disabilities Act, Individual with Disabilities
Education Improvement Act, and other federal and
state laws. The American Network of
Community Options and Resources (ANCOR) is
a nationwide nonprofit association representing and
advocating for more than 800 private providers of
community living and employment services and
supports to more than 500,000 people with
disabilities of all ages. For more than 40 years,
ANCOR has represented the capacity and ability of
private providers to ensure access by the individuals
they support, the majority of whom depend upon
Supplemental Security Income and Medicaid.

Planned Parenthood Federation of
America (PPFA) is the nation’s largest and most
trusted voluntary reproductive health care
organization. PPFA’s 83 affiliates operate more than
800 healthcare centers nationwide. In addition to
providing reproductive health care, PPFA and its

5

affiliates are among the nation’s most active and
widely recognized advocates for increased access to
comprehensive reproductive health services and
education. PPFA is committed to promoting and
preserving full reproductive choice for all people and
to providing access to high quality, confidential,
reproductive health services. The National Family
Planning & Reproductive Health Association
(NFPRHA) represents the broad spectrum of family
planning administrators and clinicians who serve
the nation’s low-income and uninsured. NFPRHA’s
more than 400 institutional members operate or
fund a network of more than 3,700 health centers
and service sites in 48 states and the District of
Columbia, providing family planning and other
preventive health services to millions of low-income
and uninsured individuals each year.

The mission of National Latina Institute
for Reproductive Health (NLIRH) is to ensure the
fundamental human right to reproductive health
and justice for Latinas, their families and their
communities through public education, community
mobilization and policy advocacy. NLIRH is the
nation’s only reproductive health policy and
advocacy organization working on behalf of the
reproductive health and justice of the nation’s Latina
women. The Black Women’s Health Imperative
(Imperative) is the only Black national organization
dedicated to promoting optimum health for Black
women across the life span—physically, mentally
and spiritually. The National Asian Pacific
American Women’s Forum (NAPAWF) is the only
national, multi-issue Asian and Pacific Islander

6

(API) women’s organization in the _ country.
NAPAWF’s mission is to build a movement to
advance social justice and human rights for API
women and girls. The Asian & Pacific Islander
American Health Forum (APIAHF) is a health
advocacy non-profit organization dedicated to health
justice through improving the health and well-being
of more than 17 million Asian Americans, Native
Hawaiians, and Pacific Islanders living in the
United States and its jurisdictions. APIAHF
believes that all persons have the right to be
healthy, to live in a thriving community, and to
quality, affordable, and accessible health care.

SUMMARY OF ARGUMENT

The impact of California’s across-the-board
provider rate reductions on Medicaid beneficiaries’
already insufficient access to health care is
incompatible with and effectively nullifies the Equal
Access Provision of the Social Security Act. If these
rate reductions were to be implemented, even fewer
providers in California would treat Medicaid
patients, due largely to payment rates that are
insufficient to cover the cost of providing the
treatment. Delays in treatment and the inability to
locate providers who will accept Medicaid payment
are contributing to the poorer health of Medicaid
beneficiaries’ as compared to the general population.

The history and purpose of the Medicaid Act
illustrate the need for and legality of private
enforcement when states’ violations of the Medicaid
Act are harming program beneficiaries. The

7

Supreme Court has long recognized the right of
program recipients and health care providers to
enforce the Supremacy Clause and enjoin state laws
that are inconsistent with the Medicaid Act or other
provisions of the Social Security Act. The statutory
scheme of the Medicaid Act does not preclude private
enforcement. In other cases, the United States has
repeatedly taken the position that private
enforcement should complement federal agency
remedies. Private enforcement is needed in these
cases because the State’s payment rates are too low
to enlist sufficient mumbers of Medicaid
participating providers, thus creating barriers to
care for Medicaid beneficiaries.

ARGUMENT

A The History And Purpose Of Medicaid
Show The Need For Private
Enforcement.

Millions of Americans depend on their states’
Medicaid programs operating as the Constitution
and Congress intend. Over the history of the
program, private enforcement has been the primary
means of halting ongoing state violations of federal
law and realizing Medicaid’s promises and
protections.

Title XIX of the Social Security Act
established Medicaid in 1965. See 42 US.C. §§
1396-1396w-5. Cooperatively funded by the federal
and state governments, Medicaid is designed to
provide low income program beneficiaries with

8

insurance that will allow them to obtain care and
services from the private health care sector,
including hospitals, doctors, pharmacies, and
nursing homes. See Rand E. Rosenblatt et al., Law
and the American Health Care System 415 (1997).
Congress’ “very clear ... intent [was] that the medical
and remedial care and services made available to
recipients under Title XIX be of high quality and in
no way inferior to that enjoyed by the rest of the
population.” Jd. at 416, citing U.S. Dep’t of Health,
Educ., and Welfare, Handbook of Public Assistance
Administration § D-5140.

Before Medicaid was enacted, low income,
uninsured people obtained health services through a
patchwork of programs, such as hospital charity care
and local programs for the poor. This system
provided uneven coverage from state to state and
within states. The Medicaid Act was intended to
change this by providing for a uniform and statewide
medical insurance program, while allowing for some
variation among states. See Social Security
Amendments of 1965, Pub. L. No. S9-97, 79 Stat. 266
(July 30, 1965).

Designed to address the more complex health
needs of people with disabilities and the limited
finances of low income people, Medicaid covers a
range of necessary health and support services for
people in need. Nearly 60 million people in the
United States depend on Medicaid for their health
care. Medicaid covers 30 million children (one in
every three children in the United States) for
medical, dental and developmental screening and

9

treatment. See Kaiser Comm’n on Medicaid & the
Uninsured, Medicaid Matters: Understanding
Medicaid’s Role in Our Health Care System 1 (Mar.
2011) {hereinafter Medicaid Matters),
http://www.kff_.org/medicaid/upload/8165.pdf; Kaiser
Comm’n on Medicaid & the Uninsured, Top 5 Things
to Know about Medicaid 2 (2011) (hereinafter Top 5
Things), http://www.kff.org/medicaid/upload/8 1
62.pdf. Nearly 15 percent of women between the
ages of 15 and 44 rely upon Medicaid for services,
including breast and cervical cancer screening and
treatment, testing and treatment for sexually
transmitted diseases, and pregnancy-related care.
See Guttmacher Inst., Women of Reproductive Age
Hit Hard by Recession, New Census Data Show
(2010), http://www.guttmacher.org/media/inthenews/
2010/09/17/Andex.htm!l. Over 14 million older
persons and people with disabilities depend on
Medicaid. Twenty percent of all non-elderly people
with disabilities in the United States depend on
Medicaid to treat a range of conditions, including
“physical impairments, blindness, limitations from
spinal cord injury, severe mental and emotional
conditions, and other disabling conditions, such as
cerebral palsy, cystic fibrosis, Downs Syndrome,
mental retardation, muscular dystrophy, autism,
spina bifida, and HIV/AIDS.” Andy Schneider et al.,
The Kaiser Comm’n on Medicaid and the Uninsured,
The Medicaid Resource Book 18 (July 2002).
Medicaid is the largest single purchaser of long-term
care services for the elderly and non-elderly people
with disabilities in the United States. For example,
seven of every ten nursing home residents are
covered by Medicaid, and Medicaid pays for 43

10

percent of the total long term care expenditures in
the United States. Medicaid Matters, supra, at 2-3.

Over its forty-six year history, Medicaid has
played a pivotal role in arranging for and funding
health services. The program has resulted in
numerous successes. It has reduced the numbers of
uninsured, helped provide near-universal protection
against communicable childhood diseases, played a
major role in reducing infant mortality rates, and
provided a critical life line to individuals with
chronic and disabling conditions. See Schneider et
al, supra, at 2; Medicaid Matters, supra, at 1-2.
Medicaid is a cornerstone of the nation’s health care
system.

Medicaid is an_ entitlement program.
Accordingly, “all individuals” who meet the
eligibility requirements are entitled to receive a
federally established set of benefits with “reasonable
promptness.” See 42 U.S.C. § 1396a(aX10XA), 42
U.S.C. § 1396a(aX8). See Schweiker v. Gray
Panthers, 453 U.S. 34, 36-37 (1981) (“An individual
is entitled to Medicaid if he fulfills the criteria
established by the State in which he lives.”). The
federal and participating state governments have a
legal obligation to pay for and administer medical
assistance needed by program beneficiaries in
compliance with the requirements of the Medicaid
Act and implementing regulations. /d. Thus,
Medicaid coverage responds as emerging populations
and economic needs arise, including nising
unemployment, loss of private health care coverage,
disasters, increasing disability rates, and an aging

11

society. See Medicaid Matters, supra, at 1-2;
Schneider et al., supra, at 2.

Entitlement to Medicaid triggers legal rights,
including the right to enforce certain statutory
requirements that are placed on the states. It is this
entitlement that makes Medicaid insurance and that
assures individuals that coverage will be there when
care is needed. Since the beginning of the Medicaid
program, beneficiaries have been able to make their
entitlement real by bringing Ex parte Young actions
for prospective injunctive relief against state officials
who are engaged in ongoing violations of federal law.
Since the beginning of the Medicaid program, these
cases have been based not only on 42 U.S.C. § 1983
but also on the Supremacy Clause. It is the
Supremacy Clause that is at issue in this case.?

2 Section 1983 is not at issue here. Gonzaga Univ. v. Doe, 536
U.S. 273 (2002), clarified that private enforcement under §
1983 is limited to federal statutory provisions that reflect
unambiguous congressional intent to benefit the individual
plaintiffs. The enforcement test is well-established. Thirty-two
Medicaid cases have been decided in the circuit courts of
appeals since Gonzaga, with no splits among the circuits. See
National Health Law Program, Update on Private Enforcement
of the Medicaid Act Pursuant to 42 U.S.C. § 1983 (June 2011),
http//www.healthlaw.org. Unlike other appellate courts,
Pediatric Specialty Care v. Ark. Dep’t of Human Servs., 443
F.3d 1015 (8th Cir. 2006), allowed enforcement of 42 U.S.C. §
1396a(aX30XA). However, that decision was vacated by Selig
v. Pediatric Specialty Care, 551 U.S. 142 (2007).

12

Il. California’s Across-The-Board Medicaid
Rate Cuts Are Incompatible With And
Effectively Nullify The Equal Access
Provision Of The Social Security Act.

When providers leave Medicaid programs due
to inadequate payment rates, Medicaid patients
experience problems locating alternative,
appropriate care and are harmed. The U.S.
Department of Health and Human Services recently
proposed regulations that recognize that states’ long
running, budget-driven failures to comply with 42
U.S.C. § 1396a(aX30XA) are causing Medicaid
recipients to be denied sufficient access to covered
care and services. See 76 Fed. Reg. 26342, 26343
(May 6, 2011). And, several courts, looking at the
issue both before and after Gonzaga Univ. v. Doe,
536 U.S. 273 (2002), have noted this national
problem. See, e.g., Equal Access for El Paso, Inc. v.
Hawkins, 509 F.3d 697, 701 n.5 (5th Cir. 2007)
(denying Medicaid recipients relief under § 1983
after discussing six such cases); see also id. (taking
judicial notice of the Texas’ Medicaid agency’s
statement that “[r]ate increases for physicians would
promote access to care for Medicaid clients that
would likely erode without the increase”).*

Even before California enacted the cutbacks,
its Medicaid provider payments were the forty-

3 See, eg., David L. Skaggs et al., Access to Orthopedic Care
for Children With Medicaid Versus Private Insurance: Results
of a National Survey, 26 J. Ped. Orthopaedics 400 (2006).

13

seventh /owest in the nation.* Access to office-based
physicians in California is so limited that some
recipients languish months before getting an
appointment for treatment.5 Patients of facilities
with average wait times of 31 days or longer face
significantly higher odds of dying than patients who
were treated at medical facilities with shorter wait
times.®

Participation in Medi-Cal among medical and
surgical specialists is even lower than participation
by primary care physicians because few doctors are
willing to treat Medi-Cal patients because
reimbursement rates are insufficient to cover the

* Stephen Zuckerman, Amy Williams & Karen Stockley, Cal.
HealthCare Found., Medi-Cal Physician and Dentist Fees: A
Comparison to Other Medicaid Programs and Medicare 23
(Apr. 2009), http://www.chcf.org/~/media/MEDIA%20LIBRARY
%20Files/PD F/M/PDF%20MediCalFeeComparison.pdf.

5 See Evan Halper, Further Fee Cuts Force a Medi-Cal Exodus:
Doctors are Rejecting New Patients, L.A. Times, Mar. 24, 2008,
2008 WLNR 5628983; Duane W. Gang, Riverside County
‘Threatens to Pull Out of Medi-Cal Mental Health Program, The
Press Enterprise (Riverside, Cal.), Apr. 1, 2008,
http//www.pe.com/localnews/healthcare/stories/PE_News_Loca
| H_board02.430192d.html.

6 Eg. Julia C. Prentice & Steven D. Pizer, Delayed Access to
Health Care and Mortality, 42 Health Services Res. 644-62
(2007), cf. Joanna Bisgaier & Karin V. Rhodes, Auditing Access
to Specialty Care for Children with Public Insurance, 364 N.
Eng. J. Med. 2324 (Jun. 16, 2011) (finding Medicaid recipients
in Illinois wait 22 days longer than the privately insured for an
appointment).

14

costs of treatment.’ Pediatric surgeons,
gynecologists and obstetricians, otolaryngologists,
mental health professionals, and dentists have all
reported that the actual cost of providing care is well
above what Medi-Cal reimburses for their service.®
Medi-Cal reimbursement rates have not significantly
increased since 2001; in fact, California’s rates
increased only two percent from 2003 to 2008, over
seven times less than the national average and ten
times less than the rate of inflation over the same
period.9

7 See, e.g., Edward C. Wang et al., Inequality of Access to
Surgical Specialty Health Care: Why Children’ With
Government-Funded Insurance Have Less Access Than Those
with Private Insurance in Southern California, 114 Pediatrics
584 (2004) (concluding 97 out of 100 surveyed otolaryngologists
would offer an appointment to a privately insured child as
compared to 27 for a child on Medi-Cal, with low monetary
reimbursement given as chief reason for refusal).

8 See David L. Skaggs et al., Access to Orthopedic Care for
Children with Medicaid Versus Private Insurance in California,
107 Pediatrics 1405, 1406 (2001) (finding that cost of treatment
by pediatric orthopedic surgeon exceeded Medi-Cal
reimbursement); Clayworth v. Bonta, 295 F. Supp. 2d 1110,
1116 n.5 (E.D. Cal. 2003) (finding Medi-Cal reimbursement
rates for OB/GYN services set below provider costs), rev’d on
other grounds 140 Fed. App’x 677 (9th Cir. 2005); Halper, supra
note 5 (reporting Medi-Cal reimbursement for tonsillectomies
is insufficient to cover surgical costs); Wang, supra note 8
(finding Medi-Cal funds for mental health treatment do not
cover costs); Martin Espinoza, Dental Care Called a Health
Care Crisis, Press Democrat (Santa Rosa, Cal.), June 16, 2011,
http://www.pressdemocrat.com/article/20110616/ARTICLES/11
0619585?p=all&tc=pgall (noting low dental participation
because “it costs more to bill for Denti-Cal than what you get”).

° Zuckerman, Williams & Stockley, supra note 4, at 11

15

Since Medicaid recipients are in significantly
poorer health than the general population, the
consequences they face from reduced access to care
leave them in a dire situation.!° Lack of access to
preventive care or treatment is the third leading
cause of death for adults age 55-64, behind heart
disease and cancer and the sixth-leading cause of
death among adults ages 25 to 64, ahead of
HIV/AIDS and diabetes.'! Low Medi-Cal provider
participation results in significantly worse and even
grave health outcomes for recipients.

'0 See Jack Hadley, Kaiser Comm’n on Medicaid and the
Uninsured, Sicker and Poorer: The Consequences of Being
Uninsured 46 (2002), http://www.kff.org/uninsured/upload/F ull-
Report. pdf.

‘t See Stan Dorn, Urban Inst., Uninsured and Dying Because
of It: Updating the Institute of Medicine Analysis on the Impact
of Uninsurance on Mortality 4 (2008), http://Awww.urban.org/
UploadedPDF/411588_uninsured_dying.pdf; Karen Davis,
Testimony before U.S. Senate, Special Comm. on Aging, The
Commonwealth Fund, Time for Change: The Hidden Cost of a
Fragmented Health Insurance System 2 (2003),
http//www.commonwealthfund org/publications/publications_s
how. htm?doc_id=221616.

16

iil. The Supreme Court Has Consistently
Recognized That Program Beneficiaries
Can Enjoin State Laws That Are Invalid
Under The Supremacy Clause, And
Congress Has Recognized This Right.

On numerous occasions dating from the early
1970s, the Supreme Court has held that
beneficiaries of Social Security Act programs can
bring preemption actions to enjoin state laws that
conflict with federal law and are, thus, “invalid
under the Supremacy Clause.” Townsend v. Swank,
404 U.S. 282, 285 (1971). In Bennett v. Arkansas,
485 U.S. 395, 397 (1988) (per curium), the Court
held that a state statute that conflicted with the
Social Security Act was preempted by operation of
the Supremacy Clause. The Court noted that the
Social Security Act “unambiguously rules out any
attempt to attach Social Security benefits,” while the
Arkansas statute at issue in the case “just as
unambiguously allows the State to attach those
benefits.” Jd. at 397. The Court held that “this
amounts to a ‘conflict’ under the Supremacy
Clause—a conflict the State cannot win.” /d. See
Blum v. Bacon, 457 U.S. 132, 138 (1982) (holding
state welfare regulations that conflicted with
regulations promulgated pursuant to the Social
Security Act “are invalid under the Supremacy
Clause”); N.Y. State Dep’t of Social Servs. v. Dublino,
413 U.S. 405, 423 n.29 (1973) (applying preemption
analysis but finding no inconsistency, noting that
“(clonflicts [in Social Security Act programs], to
merit judicial rather than cooperative federal-state
resolution, should be of substance and not merely

17

trivial or insubstantial. But if there is a conflict of
substance as to eligibility provisions, the federal law
of course must control.”); Carleson v. Remillard, 406
U.S. 598, 604 (1972) (holding that a California
regulation excluding a parent’s absence because of
military service from the definition of “continued
absence” from home conflicted with Social Security
Act AFDC eligibility provisions and was invalid
under the Supremacy Clause); see also Ark. Dept. of
Health & Human Servs. v. Ahlborn, 547 U.S. 268
(2006) (assuming preemption cause of action without
discussion). See also PhRMA v. Walsh, 538 U.S. 644
(2003) (plurality opinion) (deciding merits of
preemption claim brought by provider organization);
Dalton v. Little Rock Family Planning Services, 516
U.S. 474, 478 (1996) (applying Supremacy Clause in
provider case and remanding for entry of injunction
to extent state constitution conflicted with Medicaid
Act). 12

‘2 The petitioner and his amici voice concern that a litigation
floodgate will be produced if plaintiffs are able to enjoin state
laws that are invalid under the Supremacy Clause. However,
in a line of cases dating back more than 30 years, each of the
circuit courts of appeals already used Supremacy Clause
analysis to determine the validity of state Medicaid laws
without dire consequences coming to pass. See, e.g., PhRMA v.
Concannon, 249 F.3d 66, 75 (ist Cir. 2001) (considering
whether state statute conflicted with Medicaid so as to be
invalid under Supremacy Clause); Concourse Rehab. & Nursing
Ctr., Inc. v. Whalen, 249 F.3d 136, 146 (2d Cir. 2001); Elizabeth
Blackwell Health Ctr. for Women v. Knoll, 61 F.3d 170, 178 (3d
Cir. 1995 (“The Supremacy Clause requires invalidation of any
state constitutional or statutory provision that conflicts with
federal law ... and compels compliance by participants in Title
XIX federal aid programs with federal law and regulations.”);
Randall v. Lukhard, 729 F.2d 966 (4th Cir. 1984) (en banc)

18

In 1994, Congress twice amended the Social
Security Act to make clear that private causes of
action are available. See 42 U.S.C. §§ 1320a-2,
1320a-10. Those amendments overruled parts of
Suter v. Artist M., 503 U.S. 347 (1992). They also
affirmed the clear understanding of Congress that
program beneficiaries would maintain access to the
courts on the grounds that were recognized by this

(adopting holding from Randall v. Lukhard, 709 F.2d 257, that
a Virginia rule was invalid because it conflicted with a
provision of the Medicaid Act); Planned Parenthood of Hous. &
Se. Tex. v. Sanchez, 403 F.3d 324, 331 (5th Cir. 2005) (“[I]t is
well-established that the federal courts have jurisdiction under
28 U.S.C. § 1331 over a preemption claim seeking injunctive
and declaratory relief.”); Planned Parenthood Affiliates of Mich.
v. Engler, 73 F.3d 634, 637 (6th Cir. 1996) (because Michigan
law “conflicts with the program requirements of Medicaid, it
must be held invalid under the Supremacy Clause”); Zbaraz v.
Quern, 596 F.2d 196, 202 (7th Cir. 1979) (remanding with
instructions to enjoin enforcement of state law to extent it
conflicted with Medicaid); Lankford v. Sherman, 451 F.3d 496,
509 (8th Cir. 2006) (granting recipients’ request to enjoin
Medicaid service cutback, holding “preemption claims are
analyzed under a different test than section 1983 claims,
affording plaintiffs an alternative theory for relief when state
law conflicts with a federal statute or regulation.”); Lewis v.
Hegstrom, 767 F.2d 1371, 1375 (9th Cir. 1985) (applying
“settled proposition that state regulations which are
inconsistent with federal [Medicaid] law are invalid under the
Supremacy Clause”); Hern uv. Beye, 57 F.3d 906, 906 (10th Cir.
1995) (affirming injunction prohibiting enforcement of state
law “to the extent it conflicts with federal Medicaid law”);
Planned Parenthood Fed’n v. Heckler, 712 F.2d 650, 663-64
(D.C. Cir. 1983) (“It is elementary that under the Supremacy
Clause of the Constitution states are not permitted to establish
eligibility standards for federal assistance programs that
conflict with the existing federal statutory or regulatory
scheme.”).

19

Court prior to 1992, the year Suter was decided. See
H.R. Conf. Rep. No. 761, 103d Cong., 2d Sess., at 926
(1994), reprinted in 1994 U.S.C.C.A.N. 2901, 3257
(“The intent of this provision is to assure that
individuals who have been injured by a State’s
failure to comply with the Federal mandate of the
State plan titles of the Social Security Act are able to
seek redress in the federal courts to the extent that
they were able to prior to the decision in Suter v.
Artist M.”). Sections 1320a-2 and 1320a-10 clearly
mean that Congress intends preemption actions
under the Supremacy Clause to live on as a means of
preventing state officials from acting contrary to the
requirements of the Social Security Act.

Iv. The Medicaid Act’s Statutory Scheme Is
Not Inconsistent With The Need For
Private Enforcement Of The Supremacy
Clause To Prevent State Medicaid
Officials From Acting Contrary To
Federal Law.

In its brief supporting the petitioner, the
United States argues that allowing Medicaid
recipients and providers access to the courts is
inconsistent with Medicaid’s “statutory scheme”
vesting enforcement authority in the Department of
Health and Humans Services (DHHS). Brief for the
United States as Amicus Curiae Supporting
Petitioner at *10, Douglas v. Indep. Living Ctr. of S.
Cal. et al. (May 2011) (Nos. 09-958, 09-1158, and 10-
283) fhereinafter U.S. Indep. Living Ctr. Brief 2011}.
This argument is inconsistent with Supreme Court
precedent and the expressed opinion of Congress,

20

ignores DHHS’s limited enforcement authority, and
contradicts the position the United States has taken
in other cases.

A statutory enforcement scheme _ either
substitutes for private enforcement or it does not. In
Wilder, this Court has held that the Medicaid Act
does not contain a statutory scheme that would
replace private enforcement. See Wilder v. Va. Hosp.
Ass’n, 496 U.S. 498, 521-22 (1990); see generally City
of Rancho Palo Verdes v. Abrams, 544 U.S. 113, 121-
22 (2005) (listing Medicaid as a statute whose
private judicial enforcement is not foreclosed based
on a statutory enforcement scheme). When Congress
amended the Social Security Act in 1994, it
expressed its intent that private enforcement of the
Social Security Act be determined according to the
grounds applied in this Court’s decisions prior to
1992. See 42 U.S.C. §§ 1320a-2, 1320a-10. Thus, the
grounds established in Wilder, decided in 1990, are
included in those grounds Congress approved in its
1994 amendments to the Social Security Act.

To be sure, Medicaid’s statutory scheme does
include a provision authorizing the Secretary of
DHHS to enforce federal Medicaid law: 42 U.S.C. §
1396c authorizes the Secretary to terminate federal
funding to states whose plans are not in compliance
with the Act. Termination of federal funding is a
draconian remedy, one that DHHS rarely uses. As
noted by the United States when it opposed
certiorari in these cases, “[P]rograms in which the
drastic measure of withholding all or a major portion
of federal funding if the only available remedy would

21

be generally less effective than a system that also
permits awards of injunctive relief in private
actions.” Brief for the United States as Amicus
Curiae at *19, Maxwell-Jolly v. Indep. Living Ctr. of
S. Cal., 572 F.3d 644 (9th Cir. 2009) on petition for
cert December 2010 [hereinafter U.S. Indep. Living
Ctr. Brief Dec. 2010].13 See also Va. Office for Prot.
& Advocacy v. Stewart, 131 S.Ct. 1632, 1639 n. 3
(2011) (“The fact that the Federal Government can
exercise oversight of a federal spending program and
even withhold or withdraw funds—which are the
chief statutory features respondents point to—does
not demonstrate that Congress has displayed an
intent not to provide the more complete and more
immediate relief that would otherwise be available
under Ex parte Young.” (citation omitted)).

‘3 The United States cites a regulation recently proposed by
DHHS as evidence that DHHS is “committed to ensuring that”
Medicaid beneficiaries have meaningful access to covered
services. U.S. Indep. Living Ctr. Brief 2011 at *11-12 (citing
Medicaid Program; Methods for Assuring Access to Covered
Medicaid Services, 76 Fed. Reg. 26342 (May 6, 2011).
Regardless of DHHS’s alleged commitment, the proposed
regulations do not contain an enforcement scheme that would
render the need for private enforcement unnecessary. And
while issuance of final regulations will hopefully provide
guidance that states will follow, thereby decreasing their
noncompliance with the statutory requirement of rates
sufficient to assure equal access, these proposed regulations do
not remove the necessity of private enforcement in situations
where recalcitrant states continue to ignore the statutory
mandate.

22

Despite the position taken here, the United
States elsewhere recognizes’ that _ private
enforcement complements the Secretary’s oversight.
For example, the United States is supporting private
enforcement in a pending Medicaid case. In May
2011, Indiana enacted a statute that bars certain
entities that perform abortions from participating in
Medicaid. Medicaid-participating providers who
were barred from providing services and Medicaid
recipients who lost access to care filed suit in federal
court arguing that the state law is preempted by a
specific Medicaid Act provision and that they have a
federal right to enforce that provision pursuant to 42
U.S.C. § 1983. The United States filed an amicus
brief urging the court to enjoin implementation of
the Indiana law. See Statement of Interest of the
United States at *21-22, Planned Parenthood of
Indiana, Inc. v. Commissioner of the Ind. State Dept.
of Health, June 16, 2011 (S.D. Ind. No. 1:11-cv-
00630-TWP-DKL) [hereinafter U.S. Planned
Parenthood Brief]. According to the United States,
the recipients’ and providers’ request for injunctive
relief was “particularly necessary” because “Indiana
has expressed its view that operating a ‘non-
compliant program’ is a ‘lawful option for the State
under the [Medicaid] statute,’ so long as the State is
willing to ‘risk that the Secretary will turn off the
funding spigot.” Id. at *21-22; see also, e.g.,
Statement of Interest of the United States of
America, John B. v. Emkes, Feb. 18, 2011 (M.D.
Tenn. No. 3-98-0168) (asking court to deny
Tennessee’s request to terminate a consent decree
because the Medicaid child health screening and
treatment provisions are privately enforceable by

23

Medicaid recipients); Brief for the United States as
Amicus Curiae Supporting Respondents at *30,
Blessing v. Freestone, 520 U.S. 329 (1997) (No. 95-
1441) (arguing that private enforcement is “an
important complement to the Secretary’s necessarily
macroscopic oversight of the State, by assuring that
States carry out the specific duties” of the Social
Security Act and arguing that federal-state
cooperative program of the Social Security Act does
not contain statutory scheme that precludes private
enforcement); U.S. Indep. Living Ctr. Brief Dec. 2010
at *19 (arguing against certiorari in these cases,
pointing out that application of a contract analogy
“overlooks the important role private parties can and
often do play in vindicating federal law. A system
that relie. solely on agency review may be less
effective than a _ system of agency review
supplemented by private enforcement”). Cf.
Chisholm v. Hood, 110 F. Supp. 2d 499 (E.D. La.
2000) (ordering State to cover physical and related
therapy services for Medicaid eligible children six
years after CMS had informed the State that the Act
required coverage of these services).

Nor do the private parties have another
adequate remedy, despite some suggestions to the
contrary. See PhRMA, 538 U.S. at 675 (Scalia, J.,
concurring). In PARMA, Justice Scalia suggested
that the plaintiffs only remedy for a violation of the
Medicaid Act is to ask the Secretary of DHHS to
terminate federal funding and thereafter file an
Administrative Procedural Act action if they are
dissatisfied with the outcome. /d. at 675 (citing 5
U.S.C. § 706(2KMA)). There is no such statutory

24

scheme, see 42 U.S.C. § 1316 (citing § 1396c), nor is
there such an administrative scheme for Medicaid
recipients or providers. The federal Medicaid
regulations allow a State to obtain administrative
and judicial review when it is dissatisfied with the
denial of a state plan amendment or federal
withhold of funding. See 42 C.F.R. §§ 430.30-
430.104. Only CMS and the State are automatic
parties to the administrative hearing, id. at § 430.76,
and only the State has a right to judicial review, id.
at § 430.38. The regulations permit individuals to
petition the federal agency for permission to
participate in the hearing, but participation is
within the discretion of the presiding officer at the
hearing. Id. § 430.76. The ability of a recipient or
provider to seek permission to participate in a
State’s hearing before the Department is not a
statutory scheme that displaces private enforcement.
See Rosado v. Wyman, 397 U.S. 397, 406 (1970)
(refusing to attach significance to the fact that HEW
(predecessor to DHHS) was engaged in a study of the
issues before the court or to impose an “exhaustion of
administrative remedies” requirement, noting that
under the regulations recipients could not “have
obtained an administrative ruling since HEW has no
procedures whereby welfare recipients may trigger
and participate in the Department’s review of state
welfare programs.”); Almenzares v. Wyman, 453 F.2d
1075, 1087 (2d Cir. 1971) (finding administrative
petition scheme inadequate because of the “inability
of welfare recipients to trigger such a proceeding,
along with the natural reluctance of HEW to embark
on a course that could lead to withdrawal! of federal
aid”); Ariz. Dep’t of Pub. Welf. v. Dep’t of Health,

25

Educ. & Welf., 449 F.2d 456. 464, n.9 (9th Cir. 1971)
(finding courts without jurisdiction to hear petitions
from welfare recipients because § 1361 limits review
to petitions from states and suggesting recipients
bring direct declaratory action in district court
finding such a remedy “preferable to a judgment
ordering the cessation of the flow of federal [welfare]
funds”). See also Wilder, 496 U.S. at 514 n.12
(acknowledging position of United States that there
is no remedy under the APA because the decision to
accept a states’ assurance is entrusted to agency
discretion); id. at 521-22 (rejecting argument that an
action against the Secretary under the APA
forecloses private enforcement).

CONCLUSION

For the foregoing reasons, Amici Curiae
respectfully request this Court to affirm the
judgment of the Circuit Court.

August 5, 2011 Respectfully submitted,
Jane Perkins Stacy Canan

(Counsel of Record) AARP Foundation
National Health Law Litigation

Program Michael Schuster

101 E. Weaver Street, AARP

Suite G-7 601 E Street, NW
Carrboro, NC 27510 Washington, DC 20049
perkins@healthlaw.org scanan@aarp.org

(919) 968-6308 (202) 434-2060

26

Byron J. Gross Barbara Jones
National Health Law AARP Foundation
Program Litigation

3701 Wilshire Blvd., 200 S. Los Robles,
Suite 750 Suite 400

Los Angeles, Ca 90010 Pasadena, CA 91101
gross@healthlaw.org BJones@aarp.org

(310) 204-6010 (626) 585-2628

Counsel for amici curiae

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA43085015_0577%3A18. Public record. Not legal advice.