Su­ing for ac­cess to health­care

Los Angeles Times - - OPINION -

Only about half of the non­emer­gency care doc­tors in Cal­i­for­nia are will­ing to treat pa­tients who are on Medi-Cal — the state’s ver­sion of Med­i­caid, the joint fed­eral-state health in­sur­ance pro­gram for the poor and dis­abled — be­cause the state pays them too lit­tle for their ser­vices. Yet the fed­eral gov­ern­ment, which sets and en­forces Med­i­caid’s stan­dards for ac­cess to care, has con­sis­tently given the state’s pro­gram per­mis­sion to con­tinue as-is.

Now, two civil rights or­ga­ni­za­tions are ask­ing a judge to order the state to spend more on the pro­gram. In a re­cently filed law­suit, the Mex­i­can-Amer­i­can Le­gal De­fense and Ed­u­ca­tional Fund and the Civil Rights Ed­u­ca­tion and En­force­ment Cen­ter claim that the state’s un­der­fund­ing of Medi-Cal dis­crim­i­nates against Lati­nos in vi­o­la­tion of Cal­i­for­nia law. Their clients in­clude half a dozen Medi-Cal en­rollees who were de­nied timely care for ag­o­niz­ing med­i­cal prob­lems, largely be­cause they had trou­ble find­ing spe­cial­ists who would ac­cept their in­sur­ance.

The im­pli­ca­tions of the case are huge. Medi-Cal cov­ers 13.5 mil­lion peo­ple, or about one out of ev­ery three Cal­i­for­ni­ans. Forc­ing the state to pay more for med­i­cal pro­ce­dures would be enor­mously costly, po­ten­tially lead­ing law­mak­ers to cut the num­ber of peo­ple el­i­gi­ble for the pro­gram, re­duce the ser­vices it cov­ers, or both.

That’s why Medi-Cal’s bud­get in­volves pol­icy trade-offs that should be made by the Leg­is­la­ture, not by lit­i­gants. Yet by per­sis­tently short­ing key parts of the pro­gram, law­mak­ers and Gov. Jerry Brown have in­vited the courts to make these de­ci­sions for them.

This week a fed­eral ap­peals court re­vived a sep­a­rate chal­lenge to Medi-Cal provider rates by a group of hos­pi­tals, which claim a 10%, across-the-board cut in provider fees the state or­dered in 2011 vi­o­lates fed­eral Med­i­caid stan­dards. But even be­fore that cut, Cal­i­for­nia was pay­ing health­care providers less and spend­ing less per pa­tient than most other states’ Med­i­caid pro­grams. Ac­cord­ing to MALDEF’s com­plaint, the state pays Medi-Cal doc­tors lit­tle more than half as much as the fed­eral gov­ern­ment pays when the same pro­ce­dures are per­formed on se­niors cov­ered by Medi­care.

The MALDEF law­suit con­tends that the state’s han­dling of Medi-Cal amounts to dis­crim­i­na­tion against Latino Cal­i­for­ni­ans be­cause Medi-Cal’s pop­u­la­tion is dis­pro­por­tion­ately Latino; in fact, it ar­gues, the un­der­fund­ing prob­lem has grown as Lati­nos have come to dom­i­nate the Medi-Cal rolls. The law­suit also al­leges that the state has failed to mon­i­tor the pro­gram to make sure pa­tients have timely ac­cess to care.

State judges will de­cide whether Med­i­Cal’s fund­ing lev­els dis­crim­i­nate against Lati­nos or if it is ad­min­is­tered in a way that vi­o­lates the state’s con­sti­tu­tional guar­an­tees. But the as­ser­tion that the pro­gram is dis­crim­i­na­tory is du­bi­ous. Plain­tiffs don’t al­lege that Lati­nos are treated worse than any­one else on Medi-Cal. In­stead, they claim that Lati­nos aren’t served as well by this safety net pro­gram as oth­ers are served by em­ployer-spon­sored health plans or Medi­care — in­sur­ance pro­grams that are paid for at least in part by the par­tic­i­pants them­selves.

No ques­tion, it would be great if a safety net pro­gram could of­fer health­care as ex­ten­sive as pri­vate in­sur­ance or Medi­care. But that may not be pos­si­ble or prac­ti­cal, and it can’t rea­son­ably be guar­an­teed by law. The fis­cal pres­sures on the state force law­mak­ers to balance com­pet­ing de­mands, so in­creas­ing Medi-Cal provider fees could re­quire cuts in ben­e­fits, a re­duc­tion in the num­ber of peo­ple el­i­gi­ble for cov­er­age, or sac­ri­fices in other state pro­grams. How to strike that balance is a pol­icy judg­ment, not a le­gal one.

For sev­eral years the Leg­is­la­ture pri­or­i­tized ex­pand­ing el­i­gi­bil­ity for Medi-Cal over im­prov­ing ac­cess to care for those al­ready in the pro­gram. Now, the state is start­ing to raise provider rates, thanks to an ini­tia­tive in Novem­ber (Propo­si­tion 56) that raised the to­bacco tax sharply and ded­i­cated much of the money to Medi-Cal. Law­mak­ers — who are led by Lati­nos in both the As­sem­bly and the Se­nate — de­cided to use up to $800 mil­lion this fis­cal year to raise provider rates an es­ti­mated 2.5%.

The MALDEF law­suit il­lus­trates how the cuts in provider rates have trans­lated into pain for in­di­vid­ual Cal­i­for­ni­ans. With the in­fu­sion of to­bacco tax dol­lars, how­ever, law­mak­ers have started to raise those rates and make care more avail­able. Law­mak­ers need to con­tinue that process, or else the courts will do it for them.

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