This week's news that Justice Stephen Breyer would step down from the Supreme Court at the conclusion of the Court's term definitely caught our attention here at the Medicaid and the Law Blog. Our view is that Justice Breyer - who, for whatever reason, did not get a significant amount of attention from the mainstream media - had a monumental influence on the American health care system, and his departure is noteworthy. We thought we'd highlight a few cases in which he had a decided effect on the Medicare and Medicaid programs. If there's one common theme that has come through over the years, it's his respect for the role of the states in our health care system.
We want to begin with a case that he decided before he was appointed to the Supreme Court by President Clinton, when he was a judge on the U.S. Court of Appeals for the First Circuit. It was actually a Medicare case, and although we don't often write about Medicare here on our blog, we're making an exception to better explain Justice Breyer's health care jurisprudence. The case, Massachusetts Medical Society v. Dukakis, 815 F.2d 790 (1st Cir. 1987) involved a law that Massachusetts had enacted prohibiting physicians who treated Medicare patients from "balance billing" them for the cost of their care - in other words, charging them an amount in excess of the Medicare payment amount.
Under the Medicare program, a beneficiary who receives a physician service has to pay coinsurance equal to 20% of the Medicare payment for the service. Let's say a physician assesses a patient with flu symptoms and the Medicare payment for that service is $100. The Medicare program pays $80 and the beneficiary pays $20. But what if the physician isn't happy with the $100 payment, and feels that her services are worth $200. Medicare is still only going to pay $80, but can the physician balance bill the patient for the $120 that Medicare did not pay?
In 1985, Massachusetts enacted a law prohibiting physicians from balance billing Medicare beneficiaries as a condition of licensure. So in the example above, under the Massachusetts law, a physician in the state could lose her license if she billed the patient more than the $20 copayment. But Medicare is a federal program. Can a state regulate a physician's conduct when she's providing a service under a federal program subject only to federal rules? That was the question before the court in the Massachusetts Medical Society case.
In reaching his decision, Judge Breyer...