Medicaid, the primary mechanism in the United States for providing healthcare to low-income elders and people with disabilities, is under attack. Serious and determined moves are afoot not only to scale the program down, but also to erode the notion of entitlement, so as to reduce the ability of beneficiaries to assert rights under Medicaid. What is not commonly understood is that some of these efforts to weaken the entitlement of Medicaid-the promise that everyone who meets program eligibility requirements is entitled to services-are focused on the federal judicial system.
The U.S. federal court system is at the center of profoundly important struggles. During recent years, a remarkably high percentage of federal judicial appointees have been nominated because they had demonstrated-through their judicial decisions, public statements or actions as attorneys-a view that congressional power to provide protections or benefits for those who may be subject to discrimination, or who are particularly vulnerable, should be reduced. A corollary of this view is that currently existing federal protective and antidiscriminatory laws should be enforced as little as possible.
REMAKING THE COURTS
The Medicaid statute has drawn the particular interest of this movement, which is already rolling back rights and entitlements of ethnic and racial minorities and of the needy and the vulnerable in American society. State cutbacks in long-term care show how this concerted effort to change the federal judiciary and courts imperils Medicaid and low-income elders. To reduce healthcare costs, several states have simply redefined eligibility for nursing-facility services, which are mandatory under the Medicaid Act. Obviously, if states can redefine and reduce eligibility for such services in response to tight budget situations, the mandatory-services requirement is undone-and little is left that older, extremely infirm people can rely on.
In 2003, Kentucky's Medicaid agency told some 3,000 people, previously certified as requiring long-term care, that they were no longer eligible for nursing-facility services or home and community-based services. Done simply to save state money, this action did not take into account that no improvement was evident in the condition of any of these patients; there was no health-related reason for the state's action. Unable to pay their bills, thousands were deprived of necessary care and hundreds were discharged from nursing homes.
In response, the National Senior Citizens Law Center (NSCLC) and the Kentucky Office of Legal Service Programs filed suit in federal court. Lawsuits to enforce rights secured by federal law or the U.S. Constitution historically have been based on a 19th-century civil rights law known as Section 1983. This statute allows individuals to sue state officials who violate traditional civil rights and other federal rights, including benefits under government programs, such as Medicaid. Following this long-established approach, the federal court did exercise jurisdiction over the case and agreed that Kentucky's actions were arbitrary, without any health-related purpose. The court in 2004 denied the state's efforts to have the case dismissed and granted a preliminary injunction, ordering Kentucky to reinstate the previous definition and to restore benefits. The case was then settled, with plaintiffs getting all they had sought in the case.
At about the same time, Oregon's Medicaid agency redefined eligibility for long-term care in essentially the same way, so NSCLC filed suit there. However, the United States Supreme Court in recent decades has dramatically restricted the application of Section 1983. In the high court's most recent ruling on this point, Chief Justice William H. Rehnquist wrote that the provision cannot be used to enforce federal statutes through a private lawsuit "unless Congress speaks with a clear voice and manifests an unambiguous intent to confer individual rights. …