The big picture: More Medicaid woes?

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John O'Connor, Editorial Director
John O'Connor, Editorial Director
When Congress repealed a budgetary provision known as the Boren Amendment back in 1997, I wrote that providers had lost a significant legal protection. It appears that the full force of that loss may soon be felt.

The measure prohibited states from cutting Medicaid payments as a way to balance the books. The theory behind the Boren Amendment was simple: If nursing homes and other providers were required to provide services, razor thin payments should not be subject to the whims of state budget cutters. But that was then.

These days, most states are having trouble preventing additional fiscal losses, much less keeping up with required payments. 

Making matters worse is that we now have a Democratic president saying providers and Medicaid recipients should lose one of their few tools against bad governance: the right to seek redress in a courtroom.

In fact, the U.S. Solicitor General recently filed an anti-provider brief in a Medicaid reimbursement lawsuit that's before the Supreme Court. The administration is now making a novel two-part contribution to the case. Their first point is that, yes, states can trim Medicaid funding to providers when funds that should pay for care have already been spent elsewhere. Their second point is that providers (and Medicaid recipients) can lump it if they don't like it.

To defend these dubious principles, lawyers wrote that provider lawsuits “would not be compatible” with the means of enforcement envisioned by Congress, which relies on the HHS secretary to make sure states comply.

In other words, why trust the legal system to sort out a legal challenge when a bureaucrat appointed by the president is available?

Let's hope the Supreme Court can see through such a shallow and self-serving position. Of course, these are the same justices who recently ruled that corporations are essentially people when it comes to paying for political ads. So we'll see.

Moreover, the White House might want to be careful about what it asks for. Nursing home operators are already leaving the Medicaid program in droves.

Making future participation even less appealing is a surefire way to ensure that only the most desperate operators will bother to play in the Medicaid sandbox.
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