Vol. 24 Annals of Health Law 359
conflicting state law.170 In Wos v. E.M. A. ex rel. Johnson, the Supreme
Court assumed, without explicitly acknowledging, that there is an implied
cause of action from the Supremacy Clause for Medicaid beneficiaries.171
These decisions could potentially open up another avenue to enforce Medicaid beneficiaries’ rights against state Medicaid agencies as the Supreme
Court narrows the scope of § 1983.
Although the Supremacy Clause potentially provides an alternative avenue for beneficiaries to enforce their rights, it has significant limitations
compared to § 1983. First, Supremacy Clause claims may offer a more limited remedy than § 1983 actions: “[i]nstead of seeking an injunction enforcing federal law, the complaint must seek an injunction invalidating the state
law or action.”172 Therefore, broad structural injunctions, such as those
granted in Rosie D., may be unavailable under a Supremacy Clause cause of
action. Second, unlike § 1983, Supremacy Clause claims are not tied to a
fee-shifting statute, so there may be fewer attorneys available to bring the
cases.173 Third, the reach of the Supremacy Clause is limited because it is
only available to challenge formal state laws or policies. 174 A Supremacy
Clause claim, as a consequence, might not provide a vehicle to challenge
less formal policies such as delays in compliance with federal timeframes—
a recurring problem in Medicaid.175 Furthermore, given this restriction on
the Supremacy Clause cases, states might begin de-formalizing procedures
and policies in order to avoid litigation.176
Finally, Douglas v. Independent Living Center strongly suggests that the
Supremacy Clause cause of action may be unavailable if CMS has taken fi-
170. See, e.g., Lankford v. Sherman, 451 F.3d 496, 510 (8th Cir. 2006); Planned
Parenthood v. Sanchez, 403 F.3d 324, 331 (5th Cir. 2005); Pharm. Research & Mfrs. of Am.
v. Concannon, 249 F.3d 66, 75 (1st Cir. 2001); Concourse Rehab. & Nursing Ctr., Inc. v.
Whalen , 249 F.3d 136, 146 (2d Cir. 2001); Elizabeth Blackwell Health Ctr. for Women v.
Knoll, 61 F.3d 170, 176 (3d Cir. 1995); Hope Med. Grp. for Women v. Edwards, 63 F.3d
418, 426 (5th Cir. 1995); Planned Parenthood Affiliates of Mich. v. Engler, 73 F.3d 634, 637
(6th Cir. 1996); Zbaraz v. Quern, 596 F.2d 196, 199 (7th Cir. 1979); Lewis v. Hegstrom, 767
F.2d 1371, 1375 (9th Cir. 1985) (finding it is a “settled proposition that state regulations
which are inconsistent with federal [Medicaid] law are invalid under the Supremacy
Clause”); Hern v. Beye, 57 F.3d 906, 913 (10th Cir. 1995).
171. Wos v. E.M. A. ex rel. Johnson, 133 S. Ct. 1391, 1398 (2013); see also Simon Lazarus, “Supreme Law” For Medicaid Patients or Just Business?, 47 CLEARINGHOUSE REV.
111, 112 (2013) (“the decision implicitly answers the elephant-in-the-room question—Does
the supremacy clause authorize preemption by a federal spending clause-based law that itself
contains no express right of action?—and that the answer is yes.”).
172. Rochelle Bobroff, You Have a Federal Right, but Do You Have a Remedy?, 44
CLEARINGHOUSE REV. 428, 434 (2011).
173. See Bobroff, supra note 13, at 74.
174. Id. at 74–75.
176. See David Sloss, Constitutional Remedies for Statutory Violations, 89 IOWA L.
REV. 355, 360 (2003); Guiltinan, supra note 169, at 1619–20.