ADA files amicus brief in Supreme Court's Medicaid reimbursement case

By Donna Domino, DrBicuspid.com features editor

January 22, 2015 -- The ADA and other health professional associations have filed a friend-of-the-court "amicus" brief with the U.S. Supreme Court regarding an upcoming case, Armstrong v. Exceptional Child Center, Inc., that asserts the right to sue the government to enforce federal Medicaid law in the states, according to an ADA News story.

The U.S. Constitution's Supremacy Clause gives providers "a private right of action" to sue, the ADA and the associations assert in the brief. Medicaid's "equal access" provision requires that states that accept federal Medicaid funds must set provider reimbursement rates that are "sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area." In states such as California, reimbursement rates are low, and practitioners' organizations are actively looking to force government to raise the rates.

The issue before the Supreme Court is whether the Supremacy Clause gives Medicaid providers a private right of action to enforce the "equal access" mandate against a state where Congress chose not to create enforceable rights under that statute, according to the story.

The government opposes private action lawsuits by providers "to enjoin state Medicaid reimbursement rates as inconsistent" with the Medicaid equal-access provision. "Section 30 (A) "does not confer on providers any individual right; nor does it entitle them to a certain level of payments that would be enforceable under this court's decision in Gonzaga University v. Doe," the government's brief argued.

The court is being urged by the health professional associations to focus on "the important role of private actions to enforce the supremacy of federal law including [Medicaid] Section 30(A)'s equal-access mandate and other sections of the Medicaid Act."

“The lack of provider participation and resultant unequal access can be deadly.”
— Amicus brief filed by ADA and other health professional associations

The ADA and the six other health professional associations "are profoundly interested in this case because the states' failure to comply with the Medicaid Act's 'equal access' provision has a well-documented, negative impact on patient care," the brief states. Tthe American Medical Association, American Academy of Pediatrics, American Congress of Obstetricians and Gynecologists, American Academy of Family Physicians, American College of Emergency Physicians, and California Medical Association also signed the brief.

Current and recent members of Congress, former federal Medicaid officials, and 19 organizations, including the American Civil Liberties Union and the U.S. Chamber of Commerce, that are "committed to serving the needs of low-income persons" have filed amicus briefs in the current case.

As a recent report from the ADA Health Policy Institute states, Medicaid reimbursement rates for pediatric dental services have not kept up with inflation over the past 10 years.

"This case presents a single question under the Supremacy Clause, and the court should resist the suggestion [in other briefs] to go beyond that question and decide other issues," the professional associations wrote.

Litigation such as this led to increased dental reimbursement rates and increased access to dental care for children, the brief noted. Private lawsuits to remedy states' noncompliance with the equal-access mandate have long been used as a legal strategy.

"The lack of provider participation and resultant unequal access can be deadly," the health professionals' brief argued. "For example, in 2007 a 12-year-old Medicaid recipient named Deamonte Driver died from a brain infection caused by untreated tooth decay."

The child's mother was unable to find a Medicaid-participating dentist to provide preventive care for Deamonte and his brother, according to the brief. By the time Deamonte's painful tooth got attention, bacteria from the abscess had spread to his brain, leading to two operations and more than six weeks of hospital care costing more than $250,000.

In a related case, a federal judge ruled in December that the 1.9 million children who depend on the Florida Medicaid program for medical and dental care are not receiving the care required by federal law.

Federal Judge Adalberto Jordan found violations of federal requirements with respect to dental care "based on the fact that 79% of the children enrolled in Medicaid are getting no dental services at all."

Requirements that children receive preventive care have not been met, given that "approximately one-third of Florida children on Medicaid are not receiving the preventative medical care they are supposed to receive," according to the decision.

The class-action case was filed 10 years ago by the Florida Academy of Pediatric Dentistry and the Florida chapter of the American Academy of Pediatrics.

"Children on Medicaid have not been provided the [federal] guarantee of access to care for treatment of conditions based on the ... surveys showing serious shortages of specialist care for Medicaid," the judge wrote. "Children on Medicaid have to travel to other areas of the state and/or wait for several months to obtain care."


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