Vol. 24 Annals of Health Law 355
context the availability of litigation often encourages legislative and administrative solutions. For instance, the availability of private enforcement
serves as a deterrent for violating the federal Medicaid statute, creating ex-ante incentives for compliance.137
Would-be plaintiffs’ attorneys also encourage state agency compliance
with federal law. For example, attorneys representing beneficiaries can
write letters explaining the federal requirements and how the state Medicaid
agency or managed care company’s current policy or practice does not satisfy those requirements. This process can prompt new rulemaking or revisions in agency guidance without necessitating structural reform litigation,
but the potential for litigation is critical for this form of advocacy to be effective. Even without explicitly threatening litigation, the implicit message
of the letters is that the violation could be enforced in court. The risk of future litigation serves as important leverage for advocates to get in the room
and negotiate more democratically accountable solutions.
Moreover, litigation in one state can actually spur legislative action in
other states. Connecticut’s response to the Rosie D. ex rel. John D. v. Romney litigation in Massachusetts provides a single, compelling example of
how one successful case can spur all three responses (litigation, administrative action, and legislative advocacy).138 Rosie D. was part of the larger
EPSDT enforcement movement.139 The case focused on Massachusetts’
failure to provide adequate mental health screening and treatment for children with serious emotional disturbances and resulted in a comprehensive,
statewide consent decree.140 It is interesting to note that the attorneys bringing the case were self-consciously attempting to achieve national reform of
mental health services for children.141 Additionally, the Center for Public
Representation (“Center”), which led the case, reportedly consulted with a
wide-range of stakeholders to determine the goals of the litigation, including, “behavioral health clinicians, program administrators, medical directors, mental health professionals, children’s advocates, health care consult-
137. See Donenberg, supra note 13, at 1502.
138. See Rosie D. v. Romney, 474 F. Supp. 2d 238 ( D. Mass. 2007).
139. See id.at 239-40 (stating how if the Defendants’ plan, as ordered by the court, is
implemented and successful then it will “represent a new day for this population of underserved, disabled children” and “holds the potential to be an enormous step forward”).
140. See id. at 238-40 (discussing the Defendants’ plan and then detailing the provisos
set forth by the court to help better serve the Medicaid-eligible children).
141.Se e Rosie D., About Rosie D. [hereinafter About Rosie D.], http://www.
rosied.org/page-67061 (last visited Nov. 16, 2014) (indicating the Rosie D. site was the result of a court order for the state “to develop an integrated system of coordinated services”);
see also Rosie D., Goals and Objectives [hereinafter Rosie D., Goals and Objectives],
http://www.rosied.org/Default.aspx?pageId=67062 (last visited Nov. 16, 2014) (“The children’s mental health crisis is not restricted to Massachusetts. It is a national problem. . .Eight
years ago, the Center for Public Representation began developing an initiative to address this
crisis in children’s mental health.”).