High court could have provided clarity to states

THE U.S. Supreme Court has declined to hear a case involving state efforts to bar Medicaid payments to Planned Parenthood. This is being portrayed as a victory for the nation’s largest abortion provider, but the court’s inaction also has major impact on state efforts to manage Medicaid programs, as Justice Clarence Thomas makes clear in his dissent.

Due to controversies and questions of illegal activity surrounding Planned Parenthood, several states passed laws to prevent Medicaid payments to Planned Parenthood for any health services. Several patients sued in response. Five regional courts of appeal have ruled that Medicaid recipients have the right to sue states that restrict which providers they may use, while one court has sided with the states. For an appeal to be considered by the Supreme Court, four justices must agree it warrants review. In this instance, only three did so.

Thomas was among those who believed the court should hear the appeal, and he notes the case impacts far more than the abortion debate. The question of whether Medicaid recipients have a private right of action to challenge a state’s determination of “qualified” Medicaid providers is “important and recurring,” Thomas wrote.

“Around 70 million Americans are on Medicaid, and the question presented directly affects their rights,” Thomas said. “If the majority of the courts of appeals are correct, then Medicaid patients could sue when, for example, a State removes their doctor as a Medicaid provider or inadequately reimburses their provider.”

Because of the split decision among lower courts, as things stand today Thomas noted “patients in different States — even patients with the same providers — have different rights to challenge their State’s provider decisions.”

The legal uncertainty also creates financial challenges for states. Thomas says a state government now faces “the threat of a federal lawsuit — and its attendant costs and fees — whenever it changes providers of medical products or services for its Medicaid recipients.”

He added, “Not only are the lawsuits themselves a financial burden on the States, but the looming potential for complex litigation inevitably will dissuade state officials from making decisions that they believe to be in the public interest. State officials are not even safe doing nothing, as the cause of action recognized by the majority rule may enable Medicaid recipients to challenge the failure to list particular providers, not just the removal of former providers.” (Emphasis in original.)

There are legitimate reasons for state governments to limit the providers that can serve Medicaid patients. Cost control is an obvious factor, but other concerns may come into play. If data indicates certain doctors are low-quality providers whose patients often experience further complications, it could save states money in the long run and improve patient health to direct Medicaid recipients elsewhere. Concern that a doctor may be running a “pill mill” could likewise lead state officials to curtail patient access.

Sound financial management, not to mention humanitarian considerations, would benefit from legal clarity in these cases. As Thomas makes clear, the court’s refusal to provide that clarity may create added expense for state governments.