348 Holding Health Insurance Marketplaces Accountable 2015
sion to deny medically necessary benefits for their children.82 The Act requires states to provide Medicaid beneficiaries under twenty-one years of
age with “early and periodic screening, diagnostic, and treatment services
[EPSDT] as described in section 1396d(r).”83 The services described in 42
U.S. C. § 1396d(r) include all “necessary health care, diagnostic services,
treatment, and other measures . . . to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the State plan.”84 As
one district court examining the EPSDT provision explained, this strong
statutory language has led “every Circuit which has examined the scope of
the EPSDT program,” to recognize “that states must cover every type of
health care or service necessary.”85
Finally, providers and beneficiaries often bring lawsuits together to demand higher reimbursement rates for physicians in order to ensure that beneficiaries have “equal access” to medical care as individuals with private
insurance.86 In the absence of federal regulatory guidance or agency enforcement, courts have been the primary actors ensuring that the equal access promise of the Medicaid Act is met.87 As Brietta Clark, a scholar who
focuses on the structural inequalities in the healthcare system, has noted,
courts have “routinely held that rate cuts motivated exclusively by budgetary concerns violate [the Medicaid Act] because of the failure to consider
statutory mandated factors.”88 These cases therefore are particularly important in times of economic downturn, as states often target Medicaid
funds as a cost-saving mechanism.89 The wide variety of topics addressed
by these cases shows many aspects of the Medicaid program have been directly influenced by private enforcement.
82. PERKINS, PRIVATE ENFORCEMENT, supra note 67, at 6, 8-9 (referencing Table 2
which shows that 23 cases have been brought between 2004 and 2007).
83. 42 U.S. C. A. § 1396a(a)(43)( A); see also 42 U.S. C. A. § 1396d(a)(xvii)(4) (West,
WestlawNext through P.L. 113-174.
84. 42 U.S. C. A. § 1396d(r)(5).
85. Smith v. Benson, 703 F. Supp. 2d 1262, 1269 (S. D. Fla. 2010); Ekloff v. Rodgers,
443 F. Supp. 2d 1173, 1179 ( D. Ariz. 2006) (noting that the Seventh, Eighth, and Eleventh
Circuits have all adopted this interpretation).
86. Clark, Rate Setting, supra note 59, at 774; see, e.g., Douglas v. Indep. Living Cent.
of S. Cal., Inc., 132 U.S. 1204 (2012).
87. Clark, Rate Setting, supra note 59, at 831.
88. Id. at 807 (alteration in original).
89. Donenberg, supra note 13, at 1515; see also Timothy Stoltzfus Jost, The Tenuous
Nature of the Medicaid Entitlement: Federal Rights Remain Under Threat and Must be
Strengthened, 22 HEALTH AFF. 145, 151 (2003) (“[S]tate responsibility for Medicaid programs has produced program cuts when times are hard, because almost all states are constitutionally prohibited from running deficits, even though Medicaid is a countercyclical program and must thus be funded more rather than less generously during recessions.”).