Enforcing Medicaid's Requirements In The Federal Courts

• Published date: 22 June 2022
• Subject Matter: Food, Drugs, Healthcare, Life Sciences, Biotechnology & Nanotechnology
• Law Firm: Foley Hoag LLP
• Author: Mr Thomas Barker

The Supreme Court has announced that it will consider a case next term that has the potential to upend several decades of jurisprudence involving the Medicaid program. It involves a complicated area of the law, and in writing about this topic in the past, we have described the developments in this area of the law as a "saga." In granting review in the case of Health and Hospital Corporation of Marion County v. Talevski, 6 F.4^th 713 (7^th Cir. 2021), the Supreme Court may have signaled that it intends to clarify this unsettled area of the law, and thus this "saga" once and for all.

Background

In 1987, Congress enacted the Federal Nursing Home Reform Act (FNHRA) out of concern that federally-funded nursing facilities were providing poor quality of care to nursing home residents. Social Security Act section 1919, 42 U.S.C. 1396r. In order to impose the requirements of the new law on nursing home operators, Congress amended both the Medicare and the Medicaid statutes and imposed a series of obligations on these facilities. For example, nursing homes are required to guarantee a free choice of physician to their residents. A resident has a right to privacy and confidentiality, and to be free of restraints.

State Medicaid plans also face an obligation to ensure that nursing homes receiving Medicaid payments by the state plan are in compliance with the FNHRA. Specifically, section 1902(a)(28) of the Social Security Act requires that a state plan for medical assistance must ensure that nursing homes receiving payments under the state Medicaid plan "satisfy all requirements" of the FNHRA. This is just one in a long list of requirements with which State Medicaid agencies are required, as a condition of receiving the federal share of the cost of providing Medicaid in the state, to comply.

States must remain in compliance with all the requirements of section 1902. For example, states must make medical assistance available "with reasonable promptness." Social Security Act ' 1902(a)(8). States must "provide for making medical assistance available" to all who qualify. Social Security Act ' 1902(a)(10). States must assure that Medicaid beneficiaries have a free choice of providers. Social Security Act ' 1902(a)(23). And, as we explained above, states must assure compliance with the FNHRA.

As we have described in the past, a question arises when a state arguably violates a requirement of section 1902: what right does an aggrieved beneficiary or health care provider have to...