by Carole Stewart Anhalt, J.D., LL.M., M.H.A.
Note from Gustavo Matheus: Doctors and hospitals continue to lose significant revenue because the courts, legislatures and government agencies are often unwilling to acknowledge that healthcare quality and access are intrinsically related to reimbursement issues faced by providers. This month, I have asked health law and policy attorney Carole Stewart Anhalt to comment on the Armstrong case, an appeal recently heard by the U.S. Supreme Court involving state Medicaid underpayments made to providers. As Ms. Anhalt explains, Armstrong is a clarion call to healthcare providers: they too must make themselves heard in our legal system for Medicaid to operate effectively.
Sara Rosenbaum, J.D., a professor of Health Law and leading expert on Medicaid, recently wrote an article in the New England Journal of Medicine[ii] regardingArmstrong v. Exceptional Care Center, currently to be decided by the U.S. Supreme Court. The issue in the Armstrong case is whether medical providers have a private right of action to sue in court when Medicaid payments are too low to comply with federal Medicaid law. Access for Medicaid beneficiaries is currently threatened due to physicians’ lack of participation, a direct result of low reimbursement rates.
Armstrong is significant for many reasons. The case deals with the multitude of problems related to the regulation of the Medicaid program, such as the tense federal–state regulatory relationship, the lack of promulgation of regulations that guarantee sufficient Medicaid payments, therefore enlisting enough participating providers, as well as a problem unique to this case–a state’s refusal to pay pursuant to the Health and Human Services’ Department’s approved rate. Armstrong is also significant because federal regulators have refused to “do the right thing” and assist providers in obtaining reimbursements for which they are legally entitled, despite the longstanding legal precedent of permitting private parties to litigate when a state acts unlawfully.
Most medical providers view the case as nothing more than a policy case. Therefore, most providers have waived the opportunity to file Amicus Curiae briefs in the case. This in spite the fact that attorneys general of 27 states including Alabama, Alaska, Arizona, Colorado, Delaware, Florida, Georgia, Hawaii, Indiana, Kansas, Maryland, Michigan, Mississippi, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Wisconsin, and Wyoming, as well as the United States (through the Acting Attorney General) have argued in Amicus briefs that providers should be denied this right. To date the vast majority of Amicus Curiae briefs on file are from state and federal regulators (as well the National Governors’ Association) seeking to restrict medical providers’ rights to legally challenge improper reimbursement under the law. The American Hospital Association, the American Medical Association and the Federation of American Hospitals are the only medical provider representatives that have filed AmicusBriefs in support of the right of medical providers in this case. Medical providers need to become more involved in supporting cases like this in order to preserve the integrity of the Medicaid program.
Why should attorneys for medical providers (as well as medical providers themselves) care about Armstrong? The current balance of power in health care reform has swung away from the very medical providers who provide the care to patients. Without their right to legally challenge federal and state regulators’ lack of proper reimbursement, reimbursement to medical providers will continue to be at the whim of state and federal regulators, rather than the rule of law. The integrity of the whole Medicaid program will soon collapse. Just as medical providers care about the ability of their patients to obtain access to medical care, the inability to challenge Medicaid regulators’ lack of enforcement of regulations will allow Medicaid regulators to shirk their duties to abide by the law.
Ms. Rosenbaum argues that Medicaid beneficiaries “deserve better.” I would argue that the people and institutions that serve Medicaid beneficiaries also deserve more respect—respect that a private right of action would provide. History shows that state and federal regulators in the Medicaid system care far more about whether recipients obtain medical care than whether providers are paid for that care.
Jeff Micklos, General Counsel for the Federation of American Hospitals, recently stated in a Modern Healthcare[iii] article onArmstrong, “This is all about access to care for patients, and access really equates to adequate rates for providers.”
According to Jane Perkins, Legal Director of the National Health Law program, which also filed an Amicus brief in the case, if the Supreme Court decides against a private right of action in this case, medical providers will lose their ability to ensure adequate reimbursement.[iv]
Without a private right of action to ensure enforcement of regulations, medical providers will continue to be at the mercy of federal and state regulators with regard to reimbursement. Justice, as well as the integrity of the Medicaid program, requires that medical providers be given a private right of action in this case. If there is no method to effectively enforce the law, as is at issue in Armstrong, the law is meaningless.
Carole Stewart Anhalt, J.D., LL.M., M.H.A. – Health Care Attorney and Adjunct Professor of Business at the University of Houston – Downtown and Florida Institute of Technology. Carole is a health law attorney specializing in regulatory law. She received her Master’s degree in Health Administration from Saint Louis University in Saint Louis, Missouri, her law degree from Loyola University in New Orleans, Louisiana, and her Master of Law degree in Health Law from the University of Houston Law Center in Houston, Texas. She is licensed to practice law in Texas and Louisiana. As a health care attorney, she has extensive experience dealing with state and federal health care regulators related to Medicaid reimbursement. The opinions in her article are based upon her experiences while representing medical providers in disputes concerning health care regulations related to reimbursement.
[ii] Sara Rosenbaum, J.D., Medicaid Payments and Access to Care, Perspectives, N. Eng. J. Med. 371;25:2345 (December 18, 2014).
[iii] Modern Healthcare, High Court to Hear Arguments in Battle Over Medicaid Rates,http://www.modernhealthcare.com/article/20150115/NEWS/301159941/high-court-to-hear-arguments-in-battle-over-medicaid-rates
[iv] Supra, note iii.
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