Vol. 24 Annals of Health Law 345
2. The History of Private Enforcement of Medicaid
Medicaid beneficiaries and providers have therefore relied on federal litigation as a complement to HHS oversight in order to secure state compliance with the Medicaid Act and implementing regulations.57 Since its enactment in 1965, the substantive and procedural requirements of the
Medicaid Act have been enforced through private lawsuits.58 In the 1970s,
suits by providers seeking injunctive relief to increase reimbursement rates
were “commonplace.”59 Even after Congress shifted primary responsibility
to the states to calculate reimbursement rates, courts still recognized that
providers had an enforceable right to receive reasonable rates for their ser-
vices.60 Suits by beneficiaries are also common: In the 1970s, Medicaid
beneficiaries brought at least twenty-one cases challenging the inhumane
conditions that individuals with mental retardation and developmental disabilities faced in Medicaid-funded institutions.61 In the 1980s, beneficiaries
brought at least thirty-two such cases.62 By the 1990s, cases on behalf of individuals with developmental disabilities focused on deinstitutionalization
and providing Medicaid services through home and community-based
waivers.63 By March 2001, there were suits challenging waiting lists in fifteen states and another five suits arguing for greater access to benefits.64
Suits brought on behalf of children receiving Medicaid benefits are also
common.65 Between 2004 and 2007, there were at least nineteen federal
lawsuits and four state lawsuits filed on behalf of children seeking to en-
57. See Brief of Former HHS Officials, supra note 42, at 12–13 (stating in the first 15
years of the Medicaid program, dozens of suits were brought by private litigants to enforce
“provisions requiring states to reimburse providers on a ‘reasonable cost related basis’”).
58. See id. at 5 (“Private enforcement [of Medicaid] provides a means for meaningful
statutory enforcement . . . This understanding has been the cornerstone of HHS policy
throughout the history of the Medicaid Act, and remains the prevailing view of those
charged with administering the program.”).
59. Wilder, 496 U.S. at 516 n.14 (collecting cases); accord Brietta R. Clark, Medicaid
Access, Rate Setting an Payment Suits: How the Obama Administration is Undermining its
Own Health Reform Goals, 55 HOWARD L. REV. 771, 774 (2012) (“Since Medicaid’s enactment, providers and beneficiaries have brought payment suits challenging state rate cuts and
rate-setting methodology as violating [statutory] requirements.”) [hereinafter Clark, Rate
60. See Wilder, 496 U.S. at 518 n.16 (collecting cases after passage of the Boren
61. Feltz, supra note 13, at 187.
63. Id. at 187–88; see also Perkins & Boyle, supra note 13, at 118 (noting the “growing
advocacy movement to identify and address . . . unnecessary institutionalization”).
64. See Feltz, supra note 13, at 207 (referencing Figure 2).
65. See JANE PERKINS, MEDICAID EPSDT CASE DEVELOPMENTS, NAT’L HEALTH L.
PROGRAM 1–2 (2007), available at http://www.healthlaw.org/about/staff/jane-perkins/all-
publications/epsdt-cases#VBhZj2RdXbw (listing cases).