346 Holding Health Insurance Marketplaces Accountable 2015
force their federal rights to medically necessary benefits.66 Today, even
with growing hostility towards private enforcement generally, suits seeking
to enforce provisions of the Medicaid Act are the most common subset of §
1983 suits in the Courts of Appeals.67
The sheer number of cases brought by Medicaid beneficiaries to challenge state non-compliance indicates the important role that private enforcement litigation has played in shaping Medicaid. The scope and variety
of these cases reveals how many aspects of the Medicaid program have
been influenced by litigation. Private enforcement litigation has addressed a
wide variety of problems in states’ administration.68 Cases have touched on
most aspects of a state plan, including methods of calculating eligibility,69
what procedural protections are available for beneficiaries when states attempt to reduce, deny, or terminate benefits,70 which services are covered,71
and reimbursement rates for physicians.72 In one notable example, the Ninth
Circuit affirmed the District Court’s use of a circuit-wide, permanent injunction to ensure states were calculating income in compliance with the
Act.73 Prior to the injunction, states had been improperly calculating, and
therefore deeming, income between certain family members, causing states
to deny coverage to families who were eligible for benefits under the feder-
67. Medicaid litigation has been the bulk of the post-Gonzaga § 1983 litigation. See
Devi M. Rao, Note, “Making Medical Assistance Available”: Enforcing the Medicaid Act’s
Availability Provision Through § 1983 Litigation, 109 COLUM. L. REV. 1440, 1460 (2009).
Since 2002, the Courts of Appeals have decided 41 cases addressing whether 23 different
Medicaid provisions are enforceable through § 1983. JANE PERKINS, ISSUE BRIEF: PRIVATE
ENFORCEMENT OF THE MEDICAID ACT PURSUANT TO 42 U.S. C. § 1983, NAT’L HEALTH L.
PROGRAM 6 (2014) [hereinafter PERKINS, PRIVATE ENFORCEMENT], available at
68. See PERKINS, PRIVATE ENFORCEMENT, supra note 67, at 8 (listing private enforcement cases challenging state non-compliance in various areas of state Medicaid programs
including: fair hearings, reasonable promptness requirements, institutional payment rates,
free choice of providers, and third party liability).
69. SARAH SOMERS, Q & A: THE STATE OF MEDICAID DUE PROCESS, NAT’L HEALTH L.
PROGRAM 4 (2013), available at http://www.healthlaw.org/issues/medicaid/record
/a0Pd000000O9ybIEAR (describing multiple cases in which courts held that states were required to use transparent and accurate methods for calculating income before reducing benefits).
70. See id. at 5–7 (listing cases regarding Medicaid due process requirements generally,
and specifically regarding notice requirements, hearing requirements, and accessible procedures).
71. See PERKINS, PRIVATE ENFORCEMENT, supra note 67, at 8 (listing cases).
72. See SARAHSOMERS&SARAHGRUSIN,MEDICAIDMANAGEDCARELITIGATION
DOCKET, NAT’ LHEALTHL.PR OGRAM 3 (2013), available at https://ia601005
73. Sneede v. Kizer, 728 F. Supp. 607, 612 (N. D. Cal. 1990), aff’d, 951 F.2d 362 (9th
Cir. 1991) (enforcing 42 U.S. C. § 1396a(a)(17)( D) of the Act).