Medicaid and the enforceable right to receive medical assistance: The need for a definition of 'medical assistance'.

• Author: Wiggins, Kenneth R.

TABLE OF CONTENTS INTRODUCTION I. OVERVIEW OF MEDICAID II. SECTION 1983 AND ENFORCEABLE INDIVIDUAL RIGHTS A. Civil Rights Act of 1871 B. Pennhurst State School & Hospital v. Halderman C. Blessing v. Freestone D. Gonzaga University v. Doe III. MEDICAID AS AN ENFORCEABLE RIGHT UNDER [section] 1983. A. Eleventh Circuit: Doe v. Chiles B. First Circuit: Bryson v. Shumway IV. INITIAL REMEDIES V. THE EMERGENCE OF A SPLIT A. Seventh Circuit: Bruggeman v. Blagojevich B. The Third Circuit and the Recognition of the Split: Sabree v. Richman VI. PROPOSAL A. Looking for the True Meaning of "Medical Assistance" B. Proposed Solution for Non-Waiver Cases C. Proposed Solution for Waiver Cases CONCLUSION The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right. (1)

INTRODUCTION

Circuit courts have recently held that [section] 1396a(a)(8) of the Medicaid Act (2) grants eligible Medicaid recipients an enforceable right, under 42 U.S.C. [section] 1983, to receive medical assistance (Medicaid benefits) with reasonable promptness. Questions regarding the remedies available under this enforceable right to medical assistance, however, remain in contention among these courts. The United States Court of Appeals for the Third Circuit recently acknowledged a split among sister circuits as to how to define "medical assistance." (3) More specifically, these circuit decisions differ on the issue of whether a state must provide an eligible Medicaid recipient with the actual medical services to which she is entitled, or merely provide her with the funding for those medical services. (4)

Establishing an enforceable right to receive Medicaid benefits accomplishes little until courts are willing to inquire into the appropriate remedy following the breach of such a right. Sabree v. Richman demonstrated the inefficiency of courts not determining the appropriate remedy. In Sabree, a class of mentally retarded adults sued the Commonwealth of Pennsylvania for failing to provide them with intermediate care facility services for which they qualified under the Medicaid Act. (5) The court held that the plaintiffs had an enforceable right to receive the medical assistance in question; it did not, however, grant the plaintiffs a remedy and instead remanded the case so that the district court could define "medical assistance." (6)

This Note explores the issue of how to interpret "medical assistance" as used in the Medicaid Act, considers the different remedies that courts have used, and, combining the differing approaches, suggests how this issue should be settled. Part I provides a brief overview of Medicaid in the United States, with a more specific discussion of the Medicaid waiver provision. Part II discusses the evolution of [section] 1983 jurisprudence, which established the individual right to enforce constitutional and statutory laws against the State. Part III describes two circuit court cases that held that [section] 1983 establishes an enforceable right to Medicaid benefits for eligible individuals, and Part IV analyzes the remedies that those two courts provided. Part V introduces the current circuit split regarding how "medical assistance"--as used in [section] 1396a(a)(8)--should be interpreted. This interpretation determines the ultimate remedy in cases considering the issue of individual enforceability of the Medicaid Act. Finally, Part VI explores the differing views on the proper definition of "medical assistance," and makes suggestions for how courts should ultimately decide this issue. The outcome will largely rest on the distinction between waiver and non-waiver Medicaid programs, as well as the individual facts of each case.

1. OVERVIEW OF MEDICAID

   Congress passed Title XIX of the Social Security Act, commonly known as the "Medicaid Act," (7) in 1965 "as a modest legislative companion to Medicare." (8) Today, Medicaid is the largest means-tested entitlement law in the United States. (9) The purpose of the Medicaid Act was to establish "a cooperative federal-state program under which the federal government furnishes funding to states for the purpose of providing medical assistance to eligible low-income persons." (10) States have the option of choosing whether to participate in the program; once a state accepts federal funding through the program, however, it is required to comply with the Medicaid Act and all accompanying federal regulations. (11) If a state fails to abide by the rules set forth in the Medicaid Act or in the accompanying regulations, the Secretary of Health and Human Services (HHS) must discontinue all federal funding to which the state is entitled under its Medicaid program. (12)

   There is, however, an exception to this rule of strict compliance. In 1981, Congress passed a law known as the Medicaid Waiver Provision. (13) Under this provision, a state can ask the Secretary of HHS for approval to include within its Medicaid program home- and community-based services--such as nursing home services, habilitation services, and respite care--that are otherwise not within the realm of the Medicaid Act. (14) If approved, many of the strict requirements of the Medicaid Act are waived in order to give the state flexibility in implementing the program. (15) More specifically, waiver programs do not have to be in place statewide or be available to all individuals equally. (16) For example, a state, if it wishes, may request that its waiver program be limited to twenty potential participants. The purpose of waiver programs is "to allow states to experiment with methods of care," (17) and "to alter the institutional bias of the Medicaid program." (18)

   Courts have held recently that Medicaid recipients have an enforceable right to receive the benefits entitled to them. (19) This enforceable right is derived from 42 U.S.C. [section] 1983, which was originally enacted as the Civil Rights Act of 1871. The next Part of this Note discusses [section] 1983.

2. SECTION 1983 AND ENFORCEABLE INDIVIDUAL RIGHTS

   1. Civil Rights Act of 1871

      After the adoption of the Thirteenth Amendment, (20) Congress was left with the responsibility of providing a way for the Amendment to be enforced. Congress did so by enacting the Civil Rights Act of 1871, later codified at 42 U.S.C. [section] 1983. (21) Courts, however, were slow to define the scope of [section] 1983. (22) It was ninety years before the Supreme Court established that states could be liable to individuals for violations of federal constitutional rights under [section] 1983. (23)

      In 1980, the Supreme Court recognized that [section] 1983 may also be used against state actors to enforce rights created by federal statutes, rather than just those rights created by the Constitution. (24) In Maine v. Thiboutot, the Court justified extending the applicability of [section] 1983 to statutes--in this case the Social Security Act (SSA)--because "the SSA afford[ed] no private right of action against a State." (25) Through a series of cases following Maine v. Thiboutot, the Supreme Court has developed a standard for determining when a party may hold a state liable under [section] 1983.

   2. Pennhurst State School & Hospital v. Halderman

      In 1981, the Supreme Court confronted the issue of whether a developmentally disabled plaintiff could bring a cause of action under [section] 1983 against the State for alleged violations of the Developmentally Disabled Assistance and Bill of Rights Act. (26) The district court had found that the conditions at Pennhurst (a facility owned and operated by the Commonwealth of Pennsylvania) (27) were dangerous. (28) The district court ultimately held that the plaintiff had the right to sue under [section] 1983 to enforce his "Eighth and Fourteenth Amendment right to freedom from harm." (29)

      The Supreme Court disagreed with the district court's decision and held that for an individual to have a private cause of action against a state under [section] 1983, Congress must have "unambiguously," and "with a clear voice," intended limitations on state funding for failing to meet certain standards. (30)

   3. Blessing v. Freestone

      In 1997, the Supreme Court revisited the issue of state liability under [section] 1983 in a case in which several mothers sued the State for not taking adequate steps to ensure that the fathers of their children complied with Title IV-D of the Social Security Act by paying child support. (31) The petitioners claimed that Title IV-D bestowed on them an individually enforceable right to receive child support. (32) The Supreme Court disagreed. (33) The Court stated that it was not enough for the petitioners to claim a violation of federal law; rather, they had to claim that their federal rights were violated. (34)

      The Supreme Court went on to outline a three-pronged test to determine "whether a particular statutory provision gives rise to a federal right." (35) First, when Congress enacted a statutory provision it must have intended for the provision to benefit the plaintiff. (36) Second, the federal right in question must not be "so 'vague and amorphous' that its enforcement would strain judicial competence." (37) And third, "the statute must unambiguously impose a binding obligation on the States." (38) The Court further explained this third prong by asserting that the federal right must be stated in "mandatory, rather than precatory," language. (39)

   4. Gonzaga University v. Doe

      In 2002, the Supreme Court was faced with determining whether a provision of the Family Education Rights and Privacy Act of 1974 (FERPA), which prohibits the federal government from funding schools that release educational records to unauthorized persons, conferred a federal right upon the plaintiff. (40) The Court stated that its purpose for reviewing the case was to clear up "confusion [that] ha[d] led some...