342 Holding Health Insurance Marketplaces Accountable 2015
However, this remedy is drastic because it would result in dangerously low
levels of care for Medicaid beneficiaries.33 Beneficiaries seeking greater
benefits or providers seeking higher reimbursement rates are unlikely to request federal agency enforcement if the only solution is to further cripple
the program.34 Because this enforcement tool is so drastic, it has never been
used.35 Given this structure of agency enforcement, “states act first and seek
permission later,” and run no risk of losing state funds.36 Even if HHS was
willing to use such a drastic remedy, its statutory authority to enforce certain provisions is often limited.37 For example, in the context of provider
reimbursements rates, HHS must approve the state plan so long as the state
has provided adequate assurances that the payment amounts are sufficient
to attract providers.38 But the Secretary is only required to look at the assurances; there is no requirement that states even present the data that support
In addition to limited enforcement powers, HHS lacks the capacity and
resources to effectively monitor state compliance.40 Private enforcement
encourages the individuals who are harmed to identify violations for the
agency.41 Without private enforcement, it might be hard for HHS to identify
the requirements set out in the expansion.”) HHS still maintains this remedy to enforce other
program requirements that were in place previously. Id. (“Today’s holding does not affect
the continued application of §1396c to the existing Medicaid program.”); see also Steven
Clark, At Risk Patients and Doctors: Why Increased Agency Enforcement and Private Causes of Action Under the Supremacy Clause are Needed to Protect Medicaid Providers and
Beneficiaries, 101 KY. L.J. 183, 203 (2012–2013) (asserting that if a state fails to comply
with federal Medicaid requirements “the federal government’s only remedies would be to
seek an injunction in federal court or to terminate Medicaid funding to the state altogether.”).
33. See Donenberg, supra note 13, at 1501 (the remedy is so destructive to the underlying aid program that it is rarely, if ever, invoked) (internal quotations omitted).
34. See Sasha Samberg-Champion, How to Read Gonzaga: Laying the Seeds of a Coherent Section 1983 Jurisprudence, 103 COLUM. L. REV. 1838, 1839 (2003).
35. Clark, supra note 32, at 203 (“completely cutting a state off from Medicaid funding
would be a drastic measure, one that the federal government has never taken”); Sara Rosenbaum, Equal Access for Medicaid Beneficiaries – The Supreme Court and the Douglas Cases, 365 NEW ENG. J. MED. 2245, 2247 (2011) (“Cutting off federal funding is unheard of,
even when the state action is deemed unlawful.”); Donenberg, supra note 13, at 1501 (
asserting that cutting off state funds for Medicaid “is so destructive to the underlying aid program that [the remedy] is ‘rarely, if ever, invoked’.”).
36. Rosenbaum, supra note 35, at 2247.
37. See 42 U.S. C. A. § 1396a(a) (West, WestlawNext through P.L. 113-174) (dictating
what states must include in their state plan to receive medical assistance, which provides
boundaries for what HHS can approve).
38. 42 U.S. C. A. § 1396a(a)(30)( A).
39. Clark, supra note 32, at 189.
40. See id. at 204 (stating that CMS has limited resources, making it difficult to ensure
whether or not states are meeting their equal access obligations).
41. Id. (“former officials stated that they welcomed and relied on private causes of action to identify states that were failing to provide adequate provider payment levels”); see
also Abigail R. Moncrieff, The Supreme Court’s Assault on Litigation: Why (and How) It