Vol. 24 Annals of Health Law 339
enforcement through structural reform litigation, as opposed to public enforcement through federal agencies. Although there is a robust literature
documenting, theorizing, and often criticizing, the use of structural reform
litigation,12 the rise of structural reform litigation in health law, and specifically in Medicaid, has been largely overlooked.13 In Section II, this article
fills that gap by tracing the relationship between HHS, the states, and private litigants in enforcing federal Medicaid requirements. HHS has vocally
and consistently supported the use of private enforcement to ensure state
compliance with federal law, in large part because agency enforcement is
infeasible.14 As a result of private enforcement, structural reform litigation
has helped create an important floor in the Medicaid program—ensuring
due process protections and access to healthcare benefits—through a nationwide network of district court orders.15 These court orders have also
spurred state legislation modeled on injunctions and consent decrees.16 Examining structural reform litigation within Medicaid thus provides a unique
perspective on the relationship between structural reform litigation and fed-
12. See, e.g., ROSS SANDLER & DAVID SCHOENBROD, DEMOCRACY BY DECREE: WHAT
HAPPENS WHEN COURTS RUN GOVERNMENT (2003); Edward L. Rubin & Malcolm M. Feeley,
Judicial Policy Making and Litigation Against the Government, 5 U. PA. J. CONST. L. 617
(2002); David Zaring, National Rulemaking Through Trial Courts: The Big Case and Institutional Reform, 51 UCLA L. REV. 1015 (2004); Gerald N. Rosenberg, The Politics of Consent: Party Incentives in Institutional Reform Consent Decrees, in CONSENT AND ITS
DISCON TENTS: POLICY ISSUES IN CONSENT DECREES 13, 16–18 (Andrew Rachlin ed., 2006).
13. Although there is a healthy literature describing and criticizing how private enforcement of Medicaid is contracting in the wake of changes in Supreme Court precedent,
these articles typically start from the assumption that private enforcement is important, without systematically analyzing the role litigation has played in shaping the program. See, e.g.,
Nicole Huberfeld, Bizarre Love Triangle: The Spending Clause, Section 1983, and Medicaid
Entitlements, 42 U. C. DAVIS L. REV. 413, 416–18 (2008) (discussing the changes in Medicaid enforcement that are likely to occur after Gonzaga and noting briefly the “sheer quantity of lower federal court cases” enforcing Medicaid rights); Jon Donenberg, Medicaid and
Beneficiary Enforcement: Maintaining State Compliance with Federal Availability Requirements, 117 YALE L.J. 1498, 1516–17 (2008) (noting initially that § 1983 is primary mechanism for enforcing Medicaid and analyzing Supreme Court precedent limiting the cause of
action); Rochelle Bobroff, Section 1983 and Preemption: Alternative Means of Court Access
for Safety Net Statutes, 10 LOY. J. PUB. INT. L. 27, 34 (2008) (describing the Supremacy
Clause as an alternative to § 1983 suits given the limitations on § 1983 imposed by the Supreme Court). There are also a handful of articles written by practitioners or students that
catalogue the various trends in litigation enforcing particular Medicaid provisions. See Margaret K. Feltz, Playing the Lottery: HCBS Lawsuits and Other Medicaid Litigation on Behalf
of the Developmentally Disabled, 12 HEALTH MATRIX 181, 187 (2002); see also Jane Perkins & Randolph T. Boyle, Symposium: Addressing Long Waits for Home and Community-Based Care Through Medicaid and the ADA, 45 ST. LOUIS U. L.J. 117, 118 (2001). Yet none
of these articles have analyzed the role that private enforcement plays in the Medicaid program as a whole or situated private enforcement in Medicaid within the broader literature
regarding the efficacy of structural reform litigation.
14. See infra Section II. A.
15. See id.
16. See id.