Thursday, May 9, 2013
With millions of new enrollees poised to enter the Medicaid program in 2014, Medicaid's remedy quandry will become a more pressing issue. The Medicaid Act contains no obvious remedy for Medicaid providers or Medicaid beneficiaries when states fail to deliver the healthcare promised by the Medicaid Act. For years, the default private right of action was Section 1983, but when Gonzaga University v. Doe was decided in 2002, lower federal courts interpreted the decision as a new limit on § 1983 actions for many sections of the Medicaid Act, which I wrote about here.
The narrowing scope of 1983 rights of action has led to the Supremacy Clause cause of action that was at issue in Douglas v. Independent Living Center last term, and that question almost certainly will make its way back to the Supreme Court. In fact, states have been trying to get the Court to further restrict, even terminate, 1983 actions for Medicaid, though so far the petitions for certiorari have been denied. (Very recently, the Court denied Indiana such a petition, which was a bit of a surprise to Court observers.)
Nevertheless, stay on the alert. The Court is hearing a section 1983 case in the October 2013 term, and it could be an opportunity for the Roberts Court to pick up where Gonzaga left off. The case is Madigan v. Levin, and it involves use of § 1983 to bypass the limited remedies available in the ADEA. The Court could issue a limited decision in the case by simply determining that the ADEA's remedial scheme is comprehensive and leaves no room for additional age discrimination related claims. Or, Madigan could open the door to an articulation of this Court's interpretive take on 1983 that would very likely reject a broader swath of 1983 claims.