354 Holding Health Insurance Marketplaces Accountable 2015
enforcement of the EPSDT requirements remains one of the central issues
in Medicaid litigation.131 NHeLP prepares and publishes dockets that track
EPSDT enforcement litigation to keep advocates across the country aware
of recent trends.132 NHeLP also answers questions from advocates pursuing
EPSDT enforcement actions, setting out legal and policy arguments and
providing recommendations for local advocates based on strategies that
have worked in other courts in the past.133 Often, the recommendations include the suggestion to “[c]ontact the National Health Law Program for assistance if children in your state” face barriers to accessing EPSDT bene-
fits.134 By encouraging local advocates to model their cases on successful
litigation elsewhere in the country, national Medicaid advocates like
NHeLP explicitly strive to create the sort of “transjudicial administration”
of Medicaid state agencies that Zaring describes. In the absence of federal
agency guidance or oversight, enforcing national norms through litigation
and consent decrees becomes critical to ensuring that state budget constraints do not shortchange beneficiaries’ federal rights to Medicaid benefits.
Zaring’s theory of transjudicial administration accurately recognizes how
repeated litigation in federal district courts creates a national network
through repeat players who appear across multiple cases.135 But the influence of this litigation actually extends beyond the courts. Although structural reform litigation has been criticized generally as decreasing democratic accountability and displacing political solutions,136 in the Medicaid
for advocates pursuing Medicaid litigation through § 1983 cause of action).
131. Wayne Turner, Health Advocate: Early and Periodic Screening, Diagnosis and
Treatment, NAT’L HEALTH L. PROGRAM (Oct. 15, 2013) available at
http://www.healthlaw.org/pIublications/health-advocate-epsdt#.VIuKsskwce (“As a result of
persistent and widespread violations of federal EPSDT requirements, advocates across the
county have filed litigation against states on behalf of low income children who have been
denied medically necessary care. NHeLP has frequently partnered with state and other national advocates to bring such litigation to enforce the EPSDT mandate. NHeLP’s fact sheet
on Medicaid EPSDT Litigation describes some of these cases and how they have helped
children obtain needed services. Some state Medicaid programs currently operate under
court supervision as health advocates and state officials work to correct longstanding violations of EPSDT.”)
132. See, e.g., JANE PERKINS, MEDICAID EPSDT CASE DOCKET, NAT’L HEALTH L.
PROGRAM 2-11 (2014), available at http://www.healthlaw.org/publications/browse-all-publications/ EPSDT-docke1102014#.UyxHAlFkEkc; see also SOMERS & GRUSIN, supra
note 72, at 3.
133. See JANE PERKINS, Q&A: DISSECTING THE EPSDT “REQUEST A SCREEN”
ARGUMENT, NAT’L HEALTH L. PROGRAM 7-8 (2014), available at
134. Id. at 8.
135. Zaring, supra note 12, at 1015 (stating how institutional reform law suits generate
136. See SANDLER & SCHOENBROD, supra note 12, at 11–12, 125–26.