Former HHS Officials et al amicus brief

Amici curiae listed in the Appendix are former senior officials of the Department of Health and Human Services (?HHS?) or its predecessor, the Department of Health, Education, and Welfare (?HEW?). Each of the amici either exercised direct control over the administration of Medicaid or the legal analysis appertaining thereto, or advised the Secretary of HEW or HHS on Medicaid policy.

Although amici hold different views about various aspects of the Medicaid Act and its enforcement, we come together in this case in response to the brief filed by the U.S. Department of Justice as amicus curiae in support of the Petitioner, which argues that private enforcement of the ?equal access? provision of the Medicaid Act, 42 U.S.C. § 1396a(a)(30)(A)[hereinafter ?§ 30(A)?],3 is inconsistent with 

congressional intent and would interfere with the Secretary?s discretion to administer the Medicaid program. See Brief for the United States as Amicus Curiae Supporting Petitioner, Douglas v. Indep. Living Ctr. of S. Cal., Inc., No. 09-958 (U.S. filed May 26, 2011) [hereinafter ?Gov?t Br.?].
As amici explain below, HHS has never embraced such a view of private enforcement. To the contrary, it has consistently been HHS?s position that private enforcement of § 30(A) is not just appropriate, but also necessary to ensure that states comply with this critical regulatory mandate. Nor is there anything to the Justice Department?s suggestion that private enforcement would interfere with the Secretary?s discretion. As a matter of both historical practice and current law, private enforcement only complements the Secretary?s authority.
Since its inception in 1965, the central purpose of the Medicaid program has been to provide access to ?mainstream? health care for those who cannot afford to purchase private medical services. To that end, of the almost 100 procedural and substantive requirements that the Medicaid Act imposes on state plans, perhaps none is more vital than the ?equal access? mandate presently codified in § 30(A), which has its roots in a 1966 HEW Handbook delineating requirements for state Medicaid plans, and a regulation (45 C.F.R. § 250.30(a)(5)) first promulgated by HEW in 1971. See DeGregorio v. O?Bannon, 500 F. Supp. 541, 549 & n.13 (E.D. Pa. 1980). And as § 30(A)?s legislative history makes clear, the equal access provision exists to ensure that providers will not refuse to treat Medicaid beneficiaries due to inadequate state reimbursement rates. See, e.g., H.R. REP. NO. 101-247, at 390 (1989), reprinted in 1989 U.S.C.C.A.N. 2060, 2116. After all, without meaningful enforcement of the equal access provision, states would have little incentive to reimburse providers at mainstream rates, and providers would in turn have little incentive to treat Medicaid beneficiaries.
Despite its agreement with these basic principles, the Justice Department?s amicus brief maintains that private enforcement of the equal access provision is inconsistent with the statutory scheme, implicitly suggesting that Congress intended for the provision to be enforced exclusively by HHS. See, e.g., Gov?t Br., supra, at 12. But exclusive administrative enforcement of § 30(A) is logistically, practically, legally, and politically unfeasible. First, because the Medicaid Act contemplated?and has historically been understood to allow?direct redress by beneficiaries, neither CMS nor HHS has the resources to provide comprehensive oversight of state-by-state compliance with the equal access provision. Second, because funds for the administration of Medicaid are provided by appropriation, they are subject to far greater congressional budget constraints than Medicaid benefits. Third, as CMS itself has repeatedly conceded, it is limited both practically and legally in its authority to both enforce § 30(A) and provide remedies for violations thereof. Fourth, and finally, even in the absence of such constraints, the ?cooperative federalism? behind Medicaid means that the Executive Branch is under far more political pressure from states than from private parties.

None of these points are unique to the equal access mandate?or to the Medicaid Act more generally. But taken together, they reinforce the general proposition that the federal government lacks the financial, legal, logistical, and political wherewithal comprehensively to enforce § 30(A) against the states. Thus, whereas the Department of Justice suggests that ?Recognition of a nonstatutory cause of action for Medicaid providers and beneficiaries in this setting would be in tension with the nature of the federal-state relationship and the enforcement scheme contemplated by the statute,? Gov?t Br., supra, at 25, the reality is that exclusive federal enforcement would be in far greater tension with the scheme Congress intended and HHS has historically supported and embraced, if for no other reason than that it would not?and probably cannot?produce meaningful compliance with the Medicaid Act?s access mandate.

In the alternative, the Justice Department?s amicus brief suggests that private enforcement of the equal access provision would interfere with the Secretary?s discretion in administering the Medicaid program. See Gov?t Br., supra, at 32. The federal government has never previously opposed private enforcement of the equal access provision on the ground that it would interfere with the Secretary?s authority to administer the Medicaid program. In cases in which § 30(A) is ambiguous, the Secretary?s reasonable interpretation thereof will generally be entitled to Chevron deference. See, e.g., Pharm. Research & Mfrs. of Am. v. Thompson, 362 F.3d 817, 821?22 (D.C. Cir. 2004). As a result, she would not be bound by prior judicial decisions holding that particular state plan amendments do or do not violate § 30(A) in cases in which the statute is held to be ambiguous. See Nat?l Cable & Telecomms. Ass?n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005). 
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