The HHS Position in Independent Living Center

A little over two months ago, I wrote about the Obama Administration's eye-opening amicus brief in support of the Petitioner in Douglas v. Independent Living Center of Southern California, in which the Supreme Court is set to hear oral argument on October 3.  Briefly, the issue in Douglas is whether private parties may pursue an injunction under the Supremacy Clause against a California state law that, by cutting Medicaid reimbursement rates 10% across-the-board, arguably violates the "equal access" provision of the federal Medicaid Act [42 U.S.C. § 1396a(a)(30)(A)]. Although the SG had initially recommended denying cert., in part on the ground that there was no circuit split on the cause-of-action question, once the Court took the case, the SG sided with California on the merits, arguing that private enforcement of the equal access provision would (1) be inconsistent with the statutory scheme; and (2) interfere with the Secretary of HHS's discretion. 

As I noted at the time, this was a particularly curious argument for the SG to make given that (1) no HHS officials were on the merits brief (even though the relevant folks had been on the brief recommending a denial of certiorari); and (2) HHS has historically supported, rather than opposed, private enforcement. Indeed, a New York Times article had suggested that the merits brief was the culmination of a rather nasty behind-the-scenes battle between the Justice Department, HHS, and the White House--one in which HHS lost.

For better or worse, the HHS position now has a voice, in the form of an amicus brief that I filed yesterday on behalf of a dozen former senior HHS officials, including Secretaries Califano and Shalala. As we explain in the brief, partly because HHS has always understood private enforcement to be part of the Medicaid scheme, the Department has neither the financial, legal, logistical, nor political wherewithal comprehensively to enforce § 30(A) against the states. Moreover, leaving aside the fact that HHS has never made such a claim, the argument that private enforcement interferes with the Secretary's discretion appears to neglect settled principles of administrative law.

As with any amicus brief, I very much doubt that it will have any bearing on the Court's view of the merits. At the very least, though, it hopefully provides a worthwhile rejoinder to the rather surprising arguments advanced by the Justice Department...