New briefs due in Medicaid cases
on Nov 4, 2011 at 2:47 pm
The Supreme Court on Friday told lawyers involved in three cases on the legal rights of Medicaid patients, their doctors and other care providers, and their druggists to file new briefs within two weeks reacting to a new filing by the federal government, noting changes in how federal officials have recently dealt with the benefit reductions that California had sought to carry out. In a letter dated October 28, the government sought to indicate that the internal government review system for such cuts is working — an argument it had made earlier in asking the Court to bar the challengers from suing on their own.
The Court’s order to counsel, released after Friday’s Conference, sought responses about “the effect, if any, of the developments discussed in the letter submitted by the Solicitor General . . . on the proper disposition of this case.” The new briefs, to be filed in letter format no longer than 10 pages, are due by 2 p.m. on November 18. In the first oral argument of the current Term, on October 3, the Justices had considered three cases on the right-to-sue issue: the lead case, Douglas v. Independent Living Center (docket 09-958), and companion cases docketed as 09-1158 and 10-283.
Solicitor General Donald B. Verrilli, Jr., in his letter a week ago, said that the government’s supervising agency for the Medicaid program had just approved several of the cuts in Medicaid benefits that are at issue in the pending cases; those cuts have been blocked by lower court orders in cases filed by the patients and their care providers. California took those cases on to the Supreme Court after the Ninth Circuit Court had ruled that the challengers could sue on their own, to pursue their theory that California was not following federal Medicaid policy when its legislature — worried over a severe state budget crisis — had cut benefits by as much as 10 percent. Federal law, the patients and providers had contended, requires that payment levels be high enough to induce providers to make adequate care available to the poor and the disabled — the beneficiaries of Medicaid.
Verrilli’s letter said that, beyond the official approvals of some of the cuts at issue, federal officials have been advised that California was no longer seeking administrative approval of some of the other reductions.
The Solicitor General’s office, which had been asked by the Court earlier for its view of the case before it was granted, had argued that the Justices should not get involved. That brief, filed last December, said that the cuts were being reviewed by federal officials, that federal officials were considering new rules on such reductions, and that federal action might make it unnecessary for the patients and providers to sue — all arguments that suggested that the controversy might be resolved without Supreme Court action. The government lawyers also argued then that the lower courts were not in conflict on the issues at stake.
The Court, however, granted review of the three cases last January anyway. In a brief on the merits filed in May by the Solicitor General’s office as an amicus urging the Court not to approve a private right to sue for the patients and providers, the office again mentioned that the California reductions had been under review, and noted that some of them had been disapproved by federal officials. The rejections, the brief said, came because the state had not shown that its payment rates were high enough to draw in enough providers so that the patients had proper care. That process, the brief added, was ongoing, and the filing concluded by arguing that the internal machinery could deal adequately with the patients’ concerns and a multiplicity of courts should not be summoned to deal with challengers’ objections.
In one of the three cases, the providers reacted negatively in a merits brief in July to the Solicitor General’s arguments, saying that the government had moved into the dispute too late, and that, in any event, Congress had not denied patients and providers a right to seek relief on their own to ensure that Medicaid worked as Congress had intended. Patients and providers themselves do not have any administrative remedies, that brief said, and should not have to rely on the government to protect their interests.
Presumably, that is likely to be the argument that lawyers for patients and providers will now make to the Court anew, in response to the Court’s call for reactions to the Solicitor General’s latest submission. General Verrilli, in his letter, did not make a specific recommendation on how the new developments — that is, administrative approval of many of the cuts at stake, and withdrawal of other cuts from federal review — should affect the outcome of the case. The letter merely asked that the Court consider these developments.
Responses, of course, are due not only from the patients and providers, but by California state officials, who are likely to argue that the administrative actions have taken care of any problems with the need to assure adequate care to the poor and disabled.
Presumably, the Court will take all of those into account as it moves toward a ruling on the merits in the three cases, sometime in coming weeks or months. Conceivably, it could send the case back to the Ninth Circuit to weigh the legal significance, if any, of the new administrative review results.