National Association of Chain Drug Stores et al amicus brief: Douglas v. Indepe

INTEREST OF AMICI CURIAE
Amici?the National Association of Chain Drug Stores, the National Community Pharmacists Association, the National Alliance of State Pharmacy Associations, and the American Pharmacists Association?are national pharmacy and pharmacists associations whose members include national and community pharmacy providers who serve Medicaid beneficiaries. 
 
In this case, the Court will decide whether the U.S. Court of Appeals for the Ninth Circuit correctly held that the Supremacy Clause provides a private right of action to third parties to challenge State laws preempted by federal law. The associations represent providers who participate in the Medicaid Program and who would be adversely impacted if the Court foreclosed their ability to challenge State action that is preempted by federal law, particularly as it relates to the Medicaid Program. For these reasons, amici have a substantial interest in this case and a unique perspective on its proper resolution. 
 
INTRODUCTION AND SUMMARY OF ARGUMENT 
Medicaid is a joint federal and State program created under Title XIX of the Social Security Act to provide health care coverage to indigent and otherwise disadvantaged Americans in States that voluntarily elect to participate. 42 U.S.C. § 1396 et seq. Federal and State government agencies share responsibility for funding Medicaid. Id. § 1396a(a). Each State administers its own Medicaid program in accordance with federal and State law and pursuant to a Medicaid State Plan which the United States Department of Health and Human Services Centers for Medicare and Medicaid Services (?CMS?) reviews and approves. 42 C.F.R. § 430.10 et seq. States participating in the Medicaid program may provide coverage for pharmacy services. 42 U.S.C. § 1396a. All fifty States have chosen to do so. 
 
In order to comply with federal law, a State which chooses to participate in the Medicaid program must comply with the ?quality of care? clause of 42 U.S.C.§ 1396a(a)(30)(A), which provides in pertinent part: 
 
A state plan for medical assistance must? . . . provide such methods and procedures relating to the utilization of, and payment for, care and services available under the plan . . . as may be necessary. . . to assure that payments are consistent with efficiency, economy, and quality of care …
 
42 U.S.C. § 1396a(a)(30)(A) (?Section 30(A)?). 
 
A State Medicaid program must also comply with the ?access? clause of Section 30(A), which provides in pertinent part: 
A state plan for medical assistance must? . . . provide such methods and procedures relating to the . . . payment for, care and services available under the plan . . . as may be necessary. . . to assure that payments . . . 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 . . . . 
 
When States change how they set rates for Medicaid reimbursement to reduce the costs of their Medicaid programs, they frequently reduce payment rates to providers of medical services to Medicaid enrollees. Although Medicaid beneficiaries suffer the greatest injuries when States reduce payment for services because they lose access to needed care, providers are often the first to suffer the associated financial consequences. These reductions, when made without any analysis of their corresponding impact on providers and beneficiaries, run afoul of Section 30(A). See Medicaid Program; Methods for Assuring Access to Covered Medicaid Services, 76 Fed. Reg. 26342 (proposed May 6, 2011) (to be codified at 42 C.F.R. pt. 447). Therefore, if the law setting rates does not provide payments sufficient to assure ?access? and ?quality of care,? federal law, pursuant to the Supremacy Clause of the United States Constitution, preempts that State law. Principles of federalism mandate the supremacy of federal law. This Court has long assumed that there is a generally available right of action for preemption claims not derived directly from statute or from 42 U.S.C. § 1983 but from the Constitution. This Court should now expressly recognize that preemption claims brought under the Supremacy Clause are necessary to assure the supremacy of federal law. 
 
 
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