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At Risk Patients and Doctors: Why Increased Agency Enforcement and Private Causes of Action Under the Supremacy Clause are Needed to Protect Medicaid Providers and Beneficiaries

Published in Kentucky Law Journal

Two recent developments have raised important questions about the ability of the Medicaid program to continue to pursue meaningfully its goal of providing health care services to the nation’s most impoverished people. First, on May 6, 2011, the Centers for Medicare and Medicaid Services (CMS), a division of the U.S. Department of Health and Human Services (HHS) which is responsible for oversight of state Medicaid provider payment rate—setting, invoked its rulemaking power for the first time to propose regulations aimed at helping CMS fully implement the Equal Access provision of the Medicaid Act. Second, on February 22, 2012, the Supreme Court decided Douglas v. Independent Living Center of Southern California, a case in which Medicaid providers challenged California state budget cuts reducing the amount of Medicaid reimbursement. The providers argued that California’s budget cuts violated the Equal Access provision of Medicaid (“§ 30(A)”) which requires that providers be paid well enough to ensure that Medicaid beneficiaries have “care and services” equivalent to “the general population in the geographic area.” The providers further urged that these state budget cuts were in violation of federal law under the Supremacy Clause.

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