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5. The Secondary Effects of Medicaid Litigation
In order to fully evaluate the importance of private enforcement in Medicaid, it must be noted that the influence of private litigation extends beyond
the outcome of each individual lawsuit.122 David Zaring has observed that
institutional reform litigation can serve as the “nodes of a nationwide network capable of generating national standards of administration for disparate local institutions.”123 Repeat players who form this network—often
plaintiffs’ attorneys—share information, strategies, and best practices to
create connections between each individual case.124 Zaring points to public
housing and prison reform litigation as case studies of this phenomenon,
which he calls “transjudicial administration.”125 Medicaid litigation provides another strong example of transjudicial administration. Repeated litigation helps specify the requirements of an often-vague statute because a
victory in one case can establish the framework for subsequent litigation
across the country. For example, the victory in Doe v. Chiles126 over long
waiting lists for home and community based services “has become the
foundation for much of the subsequent waitlist litigation.”127 The subsequent litigation spurred by Doe v. Chiles essentially created a national
standard that the “reasonable promptness” provision prohibited the extended use of waitlists, and in several jurisdictions, waitlists could not exceed
more than ninety days.128
Furthermore, national organizations, such as the National Health Law
Program (“NHeLP”), operate to serve as a clearinghouse for Medicaid litigation. NHeLP works with local advocates to identify the best legal strategies and policy practices, explicitly encouraging national litigation strategies in order to create national norms.129 These agencies track national
trends in litigation and produce guides for advocates to encourage best
practices among the institutional reform cases.130 For example, continued
122. See Zaring, supra note 12, at 1015 (stating how institutional reform law suits generate national standards).
126. See, e.g., Doe v. Chiles, 136 F.3d 709 (11th Cir. 1998).
127. Feltz, supra note 13, at 200-01.
128. Id. at 200.
129. See Litigation, NAT’L HEALTH L. PROGRAM, healthlaw.org/issues/litigation (last
visited Nov. 15, 2014) (“NHeLP litigates, tracks court cases and developments and maintains strong alliances with civil rights and advocacy organizations to enforce individuals’
rights to health care”); see also Jane Perkins, NAT’L HEALTH L. PROGRAM, health-law.org/about/staff/jane-perkins (last visited Nov. 15, 2014) (noting that NHeLP’s Legal Director “has provided technical and consulting support to health advocates in all 50 states and
national and state-based training around the country”).
130. PERKINS, PRIVATE ENFORCEMENT, supra note 67, at 10 (recommending strategies