Vol. 24 Annals of Health Law 351
sure beneficiaries’ rights.108 In the absence of effective enforcement by the
state agency, § 1983 suits historically have been the only way to enforce the
Act against non-compliant state agencies and state legislatures.109 One
commenter has gone so far as claiming that the historical importance of
Medicaid litigation is “beyond dispute.”110 Although there are certainly critics of Medicaid litigation,111 there is good reason to believe that the litigation has produced positive outcomes for beneficiaries.112 One study indicated that Medicaid beneficiaries have been relatively successful at the trial
court level: in 1999 and 2000, beneficiaries prevailed sixty-one percent of
But as is common in much structural reform litigation, the most im-
108. There is a large literature in response to the narrowing of § 1983 litigation after
Gonzaga and most of these articles begin from the premise that Medicaid litigation is necessary to ensure beneficiaries’ access to benefits—without explaining how or why—and go on
to discuss possible ways to reverse the Supreme Court’s hostility towards private enforcement of Medicaid rights. See, e.g., Rachel Min Luke, Reading Between the Lines: Medicaid,
Early Periodic Screening Diagnosis and Treatment, and Section 1983, 7 SEATTLE J. FOR
SOC. JUST. 737 (2008); Colleen Nicholson, Comment, Access to Medicaid: Recognizing
Rights to Ensure Access to Care and Services, 2 U. MICH. J.L. REFORM ONLINE 22 (2012);
Sean Jessee, Comment, Fulfilling the Promise of the Medicaid Act: Why the Equal Access
Clause Creates Privately Enforceable Rights, 58 EMORY L.J. 791 (2009); Michael A. Platt,
Comment, Westside Mothers and Medicaid: Will This Mean the End of Private Enforcement
of Federal Funding Conditions Using Section 1983?, 51 AM. U. L. REV. 273 (2001); Andrew
R. Gardella, Note, The Equal Access Illusion: A Growing Majority of Federal Courts Erroneously Foreclose Private Enforcement of § 1396a(a)(30) of the Medicaid Act Using 42
U.S. C. § 1983, 38 U. MEM. L. REV. 697 (2008); Frederick H. Cohen, An Unfulfilled Promise
of the Medicaid Act: Enforcing Medicaid Recipients’ Right to Health Care, 17 LOY.
CONSUMER L. REV. 375 (2005).
109. Moncrieff, supra note 41, at 2341. Moncrieff argues, however, for eliminating private enforcement in order to encourage the federal agencies to develop effective administrative schemes. Id. at 2362. However, given the politicized nature of the Affordable Care Act,
this outcome seems particularly unlikely in either Medicaid or the Marketplaces. See Brief of
Former HHS Officials, supra note 42, at 3-4 (discussing how HHS enforcement of Medicaid
is politically unfeasible); supra II. A.1 (discussing political hurdles to HHS enforcement of
Medicaid requirements); infra Section III (discussing political hostility towards the Affordable Care Act).
110. Donenberg, supra note 13, at 1503.
111. See, e.g., Mark Andrew Ison, Note, Two Wrongs Don’t Make A Right: Medicaid,
Section 1983 and the Cost of an Enforceable Right to Health Care, 56 VAND. L. REV. 1479
(2003) (arguing that fully enforcing Medicaid is economically unsustainable and allowing
private citizens and courts to use private litigation creates unsustainable budgetary obligations on states).
112. See Jost, supra note 89, at 148 (discussing how Medicaid beneficiaries successfully prevailed in federal court cases).
113. Id. Though the beneficiaries were much less successful on appeal—state agencies
prevailed over recipients and providers over 80% of the time. See id. at 153 n.21. Unfortunately, the article doesn’t report the raw data, or define what “prevailing” means. See id. at
145-153. It also doesn’t indicate what percentage of cases that beneficiaries won at trial
court were appealed or how many of the cases that beneficiaries lost at trial were won on
appeal. See id.