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

Nos. 09-958, 09-1158, 10-283

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,

v.

SANTA ROSA MEMORIAL HOSPITAL, et ai.,

Respondents.

On Writs of Certiorari To The United States Court

of Appeals For the Ninth Circuit

Brief of Amici Curiae AARP, Families USA, et al.,

Complete list of Amict 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 list 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

i

TABLE OF CONTENTS

Page

pe) FP ft 55 ty | | ROR Ren eae er tae il

INTEmeor OF AMICI CURIA ...............c0cc0.cnsecese. 1

SOU PPAO Ee COE PIF IIES vcccecccccveccncccccnsccescoscvees 6

INET oicciisesachiticcitisrsibctoatssnsmnigctieasighicdtsta eta nraeinne Gade 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

DING TID II osivsccscacesscsincscocnnccscdccssces 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.................... 19

IIT cochienediiasinsensdenicsupadbunntoesmaalibsupidapaicanttis 25

il

TABLE OF AUTHORITIES

CASES

Almenzares v. Wyman,

ee re te es BPE B Piinaceeseneccscnsieccaniovsuncenss 24

Ariz. Dep’t of Pub. Welf. v. Dep’t of Health,

Educ. & Welf,.,

440 F.2d GEG tie Cir. 169771) ...n...cccceccccvecccees: 24-25

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

Sa es I a 17

Bennett v. Arkansas,

ROR aI REIS 9 ote Palen eh eee 16

Blum v. Bacon,

Ae EA, SN ic ciiscibisieiccstlatnstidal eat tS oe ae 16

Carleson v. Remillard,

I I IT citi cl ce 17

Chisholm v. Hood,

110 F. Supp. 2d 499 (E.D. La. 2000)..................... 23

City of Rancho Palo Verdes v. Abrams,

Be ey SI III ceostiveccdcticdsncicansemseueuionennnakedanions 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,

Pg Re 17

Dalton v. Little Rock Family Planning Services,

ee EP Fe OE aihitciciateececcnistondbbiatasntiiaceusacestiesaa 17

Elizabeth Blackwell Health Ctr. for Women v. Knoll,

he ee pf me eee 17

Equal Access for El Paso, Inc. v. Hawkins,

GOO F.3a GOT (Geka Cir. BOOT) «2.0... .cccccccccccccccccvccccece 12

Gonzaga Univ. v. Doe,

Be PE CT III ciciotcsesrencesenninuinpnieincanianbownnneseiaie 11,12

Hern v. Beye,

Be ee Be Ce CR, BID oven cncccsccesncacosscsencces 18

Lankford v. Sherman,

re rs ee Gals SD woven kcicidccccecincacenccnccuceas 18

Lewis v. Hegstrom,

uke Bo te | eee eee 18

N.Y. State Dep’t of Social Servs. v. Dublino,

i) ge a ea Ree 16-17

Pediatric Specialty Care v. Ark. Dep’t of

Human Servs., 443 F.3d 1015

Ns atonal adselierensitiaccanmaduienaiaennsicuiicerd 11

PhRMA ov. Concannon,

Be ee ee oe Ge oo ccteicnkcckcscidenscctncccsctietesn 17

iv

PhRMA v. Walsh,

SER Ntcr a h Deta en eee 17, 23

Planned Parenthood Affiliates of Mich. v. Engler,

Fae ce Ge Ge is BD oncccccneececenseccecscesccessevin 18

Planned Parenthood Fed’n v. Heckler,

713 F.3d GSO (D.C. Cir. 1068) .......cccccocccccesccocsscesse 18

Planned Parenthood of Hous. & Se. Tex. v. Sanchez,

403 F.3d 3B4 (Gthh Cir. BOOB) ........cccccccceccvescccccccssee 18

Randall v. Lukhard,

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

Rosado v. Wyman,

ow Eg RR ee oP ene renee 24

Schwetker v. Gray Panthers,

A ns 10

Selig v. Pediatric Specialty Care,

UE I: MI baiciccrctre 11

Suter v. Artist M.,

ee se Se RIED vce) cnscnccsniccuscannieiatncsnemnness 18, 19

Townsend v. Swank,

A i cemeeneennaiaial 16

Va. Office for Prot. & Advocacy v. Stewart,

Be es Me TD st secesicessicovenengesncsantwinsomnantwnnwiiss 21

Wilder v. Va. Hosp. Ass'n,

eR IEA NESS Ri RA Pere eerie ee ree 20, 25

Zbaraz v. Quern,

Fe Re Fe Gt, BOD ito nccnvecaseccccseceascnccéeves 18

STATUTES AND REGULATIONS

ee acide st bcihecie sapere canscenacevustsnticeistaikeeiin 18

Social Security Act

ee a, no seanedniduchebeoniionmannnnese 24

ee I io . scicawtinesethnahannnansanin 18, 19, 20

Oe es ie I ne siicacesnccdaccsccsedencssnvenens 18, 19, 20

ee Rs a a centeeeneinmnnaendnasbisecounctetaee 25

ee, Oe a icsicssincsincissrcccencesssseaesbesoonts 10

ee Oe IE aiiesitcinsccacecessssxarecessisteceiene 10

43 UBC. 9 REBBMESOMAD 3000 ccsceserssccsseseesss. passim

ee Oe alah ditictiadisicnbercvecsececcenss 5 euiensen 20, 24

es ee I viscaciscnccacasicccsnscecesscesbusiniann 7

Ta, Se adanamncssanesenansocenstssavetocansss 33, 23, 3 oe

Oe Ce ee a en ccettteccccsevenscnveseysnscssstins 24

ee rvrescinsivcnresnesvceninersupuieusepnenasenanencel 24

ee I a ccnicoteesnesusoccntnscccsscncedreccacsdeovernenanane 24

76 Fed. Reg. 26342 (May 6, 2011) ...................... 12, 21

76 Fed. Reg. 26343 (May 6, 2011) ................2..s0eceee 12

Administrative Procedure Act

Ee, Or I bneienciccntacevnapiscnssnengeevsneuascuneane 23

Social Security Amendments of 1965,

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

vi

LEGISLALTITVE 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

a asia ieteansnedentiaimunch 15

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

(1994) reprinted in 1994

ee IE ITED cidccicacusipacd-entenpetebesentuccamipuoinecndadis 19

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).......... 13

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 .........................000 15

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=

III iia acsidestenitiemiapesccutessacsacushsnecoscabenoneet 14

vii

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-

IEEE sitcadpesecesnacepnoascecepeecessaumbanccsestheusasenics 15

Evan Halper, Further Fee Cuts Force

a Medi-Cal Exodus: Doctors are Rejecting

New Patients, L.A. Times, Mar. 24, 2008,

BOOB WIT GEIS on. ccccccsiscesccccscsccecscccssesese 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/Pi._News_Local_H_

I IIE 6g iciccnssinencctsccbedesecsssiocsncnedens 13

Guttmacher Inst., Women of Reproductive

Age Hit Hard by Recession,

New Census Data Show (2010), http://www.

guttmacher.org/media/inthenews/

er He IN vencscsecinccscncctsnctesciseiasenndinatenes 9

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.......................... 9,10, 11

Vili

Kaiser Comm ’n on Medicaid & the Uninsured,

Top 5 Things to Know about

Medicaid (2011) http://www.kff.org/

SO III a nscnisececccccoscesececccssscoscees 9

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....................20...06c0000e 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

I SII siitnanaanian <bdebbineniemnaaninitninciaemnannen 9, 10, 11

David L. Skaggs et al., Access to Orthopedic

Care for Children With Medicaid Versus

Private Insurance in California

poy Bg Bee 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 (2O0GC).......ccccescocssecsesssscsvcsssesces 12

1X

U.S. Dep’t of Health, Educ., and Welfare,

Handbook of Public Assistance Administration

§ D-5140 Pub. L. No. S9-97

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,

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

(MLD. Tenn. No. 3-9B-O1GB).........cccccccccsccccccsecess. 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

I ec Te cciawialiawenees 21, 23

Brief for the United States as Amicus Curiae

Supporting Petitioner Blessing v. Freestone,

520 U.S. 329 (1997)(No. 95-1441) ..............0..0... 23

l

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 2 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 contnbuting 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

I. 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 U.S.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/index.htm!]. 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(aX(8). 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. Jd. Thus,

Medicaid coverage responds as emerging populations

and economic needs arise, including nmising

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 “cided 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,

Pecsatric Specialty Care v. Ark. Dep't of Human Serus., 443

F.3d 1015 (8th Cir. 2006), allowed enforcement of 42 U.S.C. §

1396a(aX30XA). However, that decision was vacated by Selig

uv. 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 “[rlate increases for physicians would

promote access to care for Medicaid clients that

would likely erode without the increase”).4

Even before California enacted the cutbacks,

its Medicaid provider payments were the forty-

3 See, e.g., 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 lowest in the nation.* Access to office-based

physicians in California is so limited that some

recipients languish months before getting an

appoiatment 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

4 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.

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 E.g. 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.®

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”).

2 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.1! Low Medi-Cal provider

participation results in significantly worse and even

grave health outcomes for recipients.

10 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 anambiguously 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.” Jd. 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

12 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

cireuit 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., PARMA ov.

Concannon, 249 F.3d 66, 75 (1st 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)).

13 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.” Jd. 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 relies 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.

200( ‘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 PhRMA, 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(2KA)). 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