Friday, October 14, 2011

Obamacare, Medicaid, and Beneficiary Lawsuits

Former CMS Administrator Bruce Vladeck has an op-ed, entitled “Killing Medicaid the California Way,” in the New York Times this morning, in which he and a co-author discuss the recent Supreme Court arguments over whether or not Medicaid beneficiaries have a right to sue over reimbursement rates and their effects on physician access.  Two points in particular, related to this case’s impact on Obamacare implementation, are worth highlighting.  First, Vladeck argues that beneficiaries should be allowed to sue because CMS does not have the resources to investigate and protect beneficiary access:

The department doesn’t have the resources to oversee compliance with the equal access provision.  As Justice Anthony M. Kennedy pointed out at the oral argument last week, only 500 employees supervise nearly $400 billion in Medicaid expenditures.  Indeed, the department’s budget for the administration of Medicaid declined by 44 percent between the 2008 and 2010 fiscal years, even as Medicaid costs have kept rising.

But if Medicaid administrative costs are woefully under-funded, then why did Democrats decide to expand the program to an additional 25 million Americans under Obamacare?  If the program can’t engage in proper oversight for the beneficiaries it has now, then why do liberals think it should enroll MORE Americans?  And where was Mr. Vladeck in making this argument a year ago – that CMS was ill-equipped and under-funded to handle the largest expansion in Medicaid’s history…?

The second key question related to Obamacare:  If Mr. Vladeck supports allowing lawsuits for Medicaid patients, why didn’t he point out that Obamacare denies Medicare patients – many of whom are also on Medicaid – the ability to sue to stop treatments being denied them by an unelected board?  Specifically, Section 3403 of Obamacare explicitly DENIES Medicare patients the right to sue over restricted or denied access to care, prohibiting lawsuits against the rulings of the law’s new board of 15 unelected, unaccountable bureaucrats.  What’s more, Medicaid providers and beneficiaries currently have a form of redress – they can (and have) utilized federal administrative processes through Washington to demand changes in state Medicaid programs.  Conversely, Obamacare prohibits BOTH judicial AND administrative review of the board of bureaucrats’ Medicare rulings – making the power of these unelected officials nearly absolute.

Surprisingly enough, in arguing for Medicaid beneficiaries’ right to sue states over poor access, Mr. Vladeck didn’t mention how Obamacare takes away the right of Medicare beneficiaries to sue the federal government over the very same access issues.  Perhaps he’s saving this point for a separate op-ed, “Killing Medicare the Obamacare Way.”  We eagerly anticipate him demonstrating ideological consistency by making such an argument.