United States: Divided Supreme Court Restricts Provider Challenges To State Medicaid Rates

Last Updated: April 7 2015
Article by Thomas S. Crane

A divided Supreme Court ruled by a 5-4 margin on March 31st that providers may not sue in federal court over the adequacy of state Medicaid rates.  The decision in Armstrong v. Exceptional Child Ctr., Inc. has important implications well beyond the narrow group of providers of "habilitation" services for the mentally retarded in the state of Idaho.

A group of Idaho Medicaid providers, led by Exceptional Child Center, Inc., brought suit in Federal District Court seeking to overturn state Medicaid reimbursement levels on the grounds that the payment amounts were so low that they ran afoul of the federal Medicaid requirement that rates must be "sufficient to enlist enough providers so that care and services are available under the plan. .  . to the general population in the geographic area." 42 U. S. C. §1396a(a)(30)(A) ("§30(a)").  Importantly, this federal Medicaid provision governs all provider payment rates, not just providers of habilitation care. Both the District Court and the Ninth Circuit Court of Appeals found in favor of the providers with the appeals court finding that the Constitution's Supremacy Clause (Art. VI, cl. 2) conferred an implied right of action for providers to seek injunctive relief under an §30(a).

In a majority/plurality opinion written by Justice Scalia, who was joined by the conservative wing of the Court (Justices Roberts, Alito, and Thomas) and also joined in a concurring opinion (in part) by Justice Breyer, the court ruled that neither the Supremacy Clause nor §30(a) created a private right of action.

In his concurring opinion, Justice Breyer based his reasoning on "several characteristics of federal statute," one of which is the Administrative Procedures Act.  In other cases, as well as here, Justice Breyer has invoked administrative law principles, such as agency decisions held to an "arbitrary, capricious, and abuse of discretion" standard as well as deference afforded under Chevron U. S. A. Inc. v. Natural Resources Defense Council – all of which typically lead to results unfavorable to providers.  Breyer found that in these types of rate setting cases "administrative agencies are far better suited to this task than judges."  Breyer added:

"The consequence, I fear, would be increased litigation, inconsistent results, and disorderly administration of highly complex federal programs that demand public consultation, administrative guidance and coherence for their success."

Although the dissent, led by Justice Sotomayor (and joined by Justices Kennedy, Ginsburg and Kagan), obliquely conceded (in an introductory clause to a single sentence) that the Supremacy Clause does not grant such a private right of action, they argued that §30(a) impliedly grants such equitable relief in this case at the discretion of the courts, but not as a matter of right.

Much of the debate between the majority (with Breyer's concurrence) and minority focused on the adequacy of alternative remedies.  To the majority, providers can petition the Department of Health and Human Services ("HHS") to invoke §30(a) and withhold Medicaid funds if state rates are inadequate.  Not citing to the overwhelmingly adverse case law to providers and other petitioners, Justice Breyer also added that suits may be brought challenging HHS's failure to act.  The dissent, argued pragmatically that these few remaining remedies for providers are insufficient.

The stakes here are significant as evidenced by the 15 amicus briefs filed.  Among the groups seeking to weigh in are 28 states, the National Governors Association and Council of State Governments, the Department of Justice (on behalf of the United States),  numerous provider trade associations (American Hospital Association, the Federation of American Hospitals, the American Medical Association and other national physicians groups), nine Democratic Senators and House Representatives, various advocacy groups, the American Civil Liberties Union and the Chamber of Commerce.  Left unsaid by the Court are the important implications of this case in relation to the Affordable Care Act (ACA), which expands the availability of health care insurance through, among other means, expanded Medicaid coverage.  The reality (although not said in polite company at the time the ACA was enacted) is that Congress used the vehicle of expanded Medicaid coverage for the simple reason that state Medicaid programs are historically the lowest payors. So the decision in Exceptional Child Center appears to give state Medicaid programs considerably more leeway to keep rates low, perhaps until there is a political backlash by providers voting with their feet to opt out of state Medicaid programs.

Finally, it is noteworthy that Justice Breyer voted with his conservative colleagues to create a majority here.  In reality, his concurring opining, speaking in APA qua judicial deference language, was not a surprise.  Ever since, at least, 2000 with Justice Breyer's majority opinion in Shalala v. Illinois Council, Inc. (in which Justice Thomas filed a persuasive dissenting opinion), providers have learned that his strong judicial deference philosophy is a bar to advancing their interests in seeking judicial relief from HHS regulations.  This Exceptional Child Center judicial coalition between Justice Breyer and the conservative Justices, however, perhaps is a fleeting one of the moment.  As I will write in my next post, in a March Supreme Court decision, Perez v. Mortgage Bankers Association, three conservative Justices (Alito, Scalia, and Thomas) filed separate concurring opinions, each arguing to revisit various principles of APA judicial deference that are the hallmark of Justice Breyer's jurisprudence.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions