United States: Enforcing The Entitlement To Medicaid: The Ongoing Saga

Last Updated: December 1 2017
Article by Thomas Barker

We have written in the past about enforcing the entitlement to Medicaid through the federal court system. In light of a recent opinion by the United States Court of Appeals for the 8th Circuit, it seems that this judicial saga continues.

The federal Medicaid statute imposes roughly 80 requirements on a state Medicaid plan. For example, a state Medicaid plan must make medical assistance available "with reasonable promptness." Social Security Act § 1902(a)(8). It must provide the same "amount, duration or scope" of Medicaid to all enrollees. Social Security Act § 1902(a)(10)(B). It must "assure that payments ... are sufficient to enlist enough providers." Social Security Act § 1902(a)(30)(A).

But what happens if a state Medicaid plan fails to comply with any of those requirements? What if benefits aren't made available "with reasonable promptness"? What if benefits are not provided in the same "amount, duration or scope"? What if payments are not "sufficient to enlist enough providers"? What recourse does an aggrieved Medicaid beneficiary or provider have if a state fails to comply with any of the 80 requirements?

It turns out that this is one of the most complicated and long-unsettled questions in the Medicaid program. For over 25 years, the federal courts have grappled with this issue. Increasingly, the answer is that providers and beneficiaries have limited recourse through the federal courts. Rather, the sole remedy for an aggrieved beneficiary or provider is to lodge a complaint with CMS in the hopes that the agency will withhold funding from the state. A recent decision involving the Arkansas Medicaid program reinforces our view on this point. But before we turn to that, a bit of background.

The central problem is that the Medicaid law lacks an enforcement mechanism. As a result, someone who wants to challenge the failure of a state Medicaid plan to comply with the program's requirements has to look to some other statute to enforce Medicaid requirements. In a case called Virginia Hospital Association v. Wilder, 496 U.S. 498 (1990), the Supreme Court held, in a 5 – 4 decision, that the Federal Civil Rights statute (a Civil War-era law designed to protect individuals when a state violated their federally-guaranteed rights) could be used to enforce Medicaid.

It didn't take long for the Supreme Court to begin walking away from that decision, however. In Gonzaga v. Doe, 536 U.S. 273 (2002), the Supreme Court explained that the Federal Civil Rights statute could only be used to enforce federal rights guaranteed by programs such as Medicaid against encroachment by a state when those federal rights were "clear" and "unambiguously" granted. Many Medicaid requirements do not meet this standard.

In 2012, the Supreme Court had its clearest opportunity to overrule the Wilder case, but it declined to do so in Douglas v. Independent Living Centers of Southern California, 132 S. Ct. 1204. Three years later, in Armstrong v. Exceptional Child Center, 135 S. Ct. 1378 (2015), the Court came one step closer when it ruled that a challenger could not rely on the Supremacy Clause of the Constitution, and the doctrine of pre-emption, to enforce the requirements of the Medicaid statute. But still, the Court has never expressly overruled Wilder.

The Douglas and Armstrong cases teed up the most recent example of this ongoing legal drama. In Doe v. Gillespie, No. 15-3271, (8th Cir. 2017), a three-judge panel of the U.S. Court of Appeals for the 8th Circuit examined the ability of a Medicaid patient to enforce the "free choice of provider" requirements of section 1902(a)(23)(A) of the Social Security Act. This section guarantees to a Medicaid beneficiary the ability to choose to receive care from any health care professional "who undertakes to provide [her] such [medical] services."

The case arose when the state of Arkansas elected to terminate Planned Parenthood's contract to provide health care services to Arkansas residents. The lack of a Planned Parenthood provider in the state meant that some women in the state were unable to receive health care services from the provider of their choice. The plaintiffs were women who had lost access to those services as a result of the termination of the contract.

In their lawsuit against the state Medicaid agency, they argued that the state had violated § 1902(a)(23)(A) by eliminating their free choice of provider. Moreover, they sought to enforce their purported right to a free choice of provider by arguing that § 1902(a)(23)(A) was enforceable via the Federal Civil Rights statute as interpreted by the Supreme Court in the Wilder case. Remember, although the Wilder case has been curtailed, it has never been expressly overruled. The plaintiffs in the Gillespie case took the position that Medicaid's free choice of provider requirement was precisely the kind of "clear and unambiguous" right that was enforceable, even in light of the cases that came after Wilder.

The appellate court disagreed, however. The court concluded that § 1902(a)(23)(A) was not "clear and unambiguous" because, among other reasons, the statute is a directive targeted at the state; it is not a conferral of a right to a beneficiary. In other words, the federal Medicaid statute does not say: "A beneficiary under this title has a right to receive services from any health care professional who undertakes to provide her such services"; rather, it says that "a state plan must provide that a [Medicaid beneficiary] may obtain [medical services]" from a provider of their choice.

The statute, according to the court, is "two steps removed" from the interests of Medicaid beneficiaries. It is not directed at the individual Medicaid recipient, and it is not directed at the funding recipients (i.e., the health care provider – here, Planned Parenthood) being regulated. Rather, it is directed at the state official managing the Medicaid program. This, in the court's view, is too far removed to stand as a "clear and unambiguous" right – especially in light of the rulings that came after Wilder.

If the 8th Circuit is correct – and there is some question whether they are, in light of contrary interpretations in other circuits – it is likely that there is no provision in Medicaid that can be enforced through the federal courts. After all, given the way that section 1902 is drafted, every requirement of Medicaid is "two steps removed" from the ultimate Medicaid beneficiary. Providers and beneficiaries must wait to see whether the Supreme Court agrees to take up the split in the Circuit Courts of Appeal on this question.

To view Foley Hoag's Medicaid and the Law blog please click here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions