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The first problem is acquiring funding for enforcement activities.48 CMS
must request enforcement funds from Congress through the annual appropriations process.49 Funds for enforcement are classified as discretionary
spending, unlike spending on medical services, which is mandatory.50 As a
result, it is politically unrealistic that CMS will receive sufficient funding to
enforce state noncompliance, particularly when compliance often requires
increased federal expenditures on medical services.51 This also explains
why CMS currently focuses its enforcement efforts on fraud and abuse, rather than compliance with beneficiary benefits and provider rates—when
CMS uncovers fraud and abuse, it can require a state to repay the federal
The second political problem HHS faces is its relationship with the
states. Generally, in cooperative-federalism programs, the role of federal
agencies towards states is one of a coach rather than a referee.53 Federal
agencies are therefore unlikely to use harsh enforcement mechanisms to ensure compliance.54 The reluctance to withhold funding is particularly acute
in the Medicaid context because, given the routine budget overruns in state
Medicaid programs, states are politically reliant on federal financial partici-
pation.55 Withholding large amounts of funding to a state is likely a politically perilous move, rendering the chances of HHS effectively enforcing
the Medicaid statute even more unlikely.56
ment of § 30( A) is politically unfeasible).
48. See id. (“funds for the administration of Medicaid are provided by appropriation,
they are subject to far greater congressional budget restraints than Medicaid benefits”).
49. Id. at 21–22.
50. Id. at 21.
51. See id.
52. Moncrieff, supra note 41, at 2341 (“CMS directs more of its Medicaid resources to
policing individual providers’ compliance with Medicaid fraud and abuse laws than policing
state agencies’ compliance with the federal statute. On the occasions that CMS does reject
state plans or insist on amendments thereto, it almost always does so to protect its own funds
from perceived state raids.”); see also Nicole Huberfeld, Bizarre Love Triangle: The Spending Clause, Section 1983, and Medicaid Entitlements, 42 U. C. DAVIS L. REV. 413, 465
(2008) (noting CMS’s focus on fraud prevention rather than access enforcement).
53. Edward A. Tomlinson & Jerry L. Mashaw, The Enforcement of Federal Standards
in Grant-in-Aid Programs: Suggestions for Beneficiary Involvement, 58 Va. L. Rev. 600,
54. See id.
55. Brian J. Dunne, Enforcement of the Medicaid Act Under 42 USC § 1983 After Gonzaga University v Doe: The “Dispassionate Lens” Examined, 74 U. CHI L. REV. 991, 994–