Is Medicaid an entitlement? Or not?
The Supreme Court may soon decide.
Currently Medicaid is an entitlement. If you meet the criteria of your state, you are eligible for this insurance program, financed partly by Uncle Sam, partly by your state (generally a 50/50 split). Some states have higher income thresholds than others — generally, generosity cleaves along blue/red state lines, with the latter more frugal. As for benefits, Uncle Sam has decreed a set package including long term care. Again, your state may expand benefits — another cleavage along blue/red state lines.
But once you are under the tent, you are entitled to those benefits. Today Medicaid covers more than 82 million Americans. For some recipients, states may levy a co-pay — generally, these are the optional “expanded” population. Most nursing home residents, though, pay nothing. After all, none work; all are poor.
Soon the Supreme Court may rule on “entitlement;” whether recipients are truly entitled to the services promised, or whether the word joins the lexicon of conservative-speak, like Stephen Colbert’s “truthiness.”
Past legal thinking has held that once you believe you have not gotten what, under federal law, you are entitled to, you can sue. That is a legacy of Post Civil War rulings.
This case arose in Indiana, where one Medicaid recipient argued that care at one nursing home, paid by Medicaid, was deficient. The resident sued in 2019. The Indiana Health & Hospital Corporation of Marion County, the governmental board that oversees Medicaid, as well as owns the nursing home (it bought the home, along with 78 others in Indiana) has brought the case to the Supreme Court. The Corporation’s key argument: if the entitlement program involves state money, a nursing home resident (and by extension a recipient of food stamps or Temporary Assistance for the Needy) cannot sue in federal court. In short, for programs like Medicaid, the “right to sue” does not exist.
A successful verdict will save the state money — one reason that the suit has the support of the Democratic board, as well as Indiana’s Republican Attorney General.
The suit evokes the Supreme Court’s willingness to discard federal rights for states’ rights.
The Supreme Court has already discarded the federal right to abortion. In throwing out Roe v. Wade, they let states decide the ground rules for women who seek abortions, the ground rules for providers. So states differ markedly, not just in the rights of women, but in the protections offered to physicians, the role of telemedicine, the ease of ordering abortion pills on the internet. The Supreme Court has sent America’s women careening back to the future of the 1950s, when states varied even in the ease with which women could buy contraceptives.
This case follows in the wake of that decision.
For decades the federal programs have offered protection to recipients: if your state slashes services, you can sue. Indiana has argued”no:” if your state pays for a chunk of those services, your state can decide on the quality of service. If you are distressed, Uncle Sam will no longer, legally, be your ally.
The Indiana Health & Hospital Corporation has argued that residents still have the same recourse as non-Medicaid enrollees: to file a complaint with the Indiana Department of Health. Health departments, however, are loathe to discipline nursing homes. The remedy — withholding Medicaid funds — leaves the facility ill-equipped to continue to provide care at all. And closing an insolvent nursing home will leave hundreds of residents with no place to go.
If the Supreme Court rules against the notion of entitlement, it will plunge the nation into into a dystopian tomorrow, where states will be free to reduce services to those least able to object: the poor, the disabled, the sick. Ironically, in the 1950s, the halcyon era beloved by conservatives, egregious nursing home scandals spurred the federal oversight that this case may weaken.
Even conservatives must hope that the Supreme Court, scheduled to hear oral arguments Nov. 8, bows out of this decision.
Joan Retsinas is a sociologist who writes about health care in Providence, R.I. Email retsinas@verizon.net.
From The Progressive Populist, November 15, 2022
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