Law Review Articles:

Maxwell Mehlman & Karen Visocan, Medicare and Medicaid: Are They Just Health Care Systems?, 29 Houston Law Review 835 (1992). Total pages: 27.

This article explores whether, and how, the Medicare and Medicaid programs abide by and promote concepts of justice. The article focuses on three primary concepts of justice: equality, redistributive justice, and equity.

Equality. The article intimates that there may be some inefficiencies in Medicaid system because eligibility is determined, among other things, by financial standing and not on medical need. Additionally, the authors state that the Medicaid program is incomplete. Medicaid is jointly funded by states and the federal government. States have some latitude in deciding what services and how much of those services will be covered by Medicaid funds, which effectively bars some who otherwise meet the eligibility requirements of the Medicaid program.

Redistributive Justice. The authors point out that while the goal of the Medicaid program is to pool resources from those who have available resources and distribute it to those with little to no resources, the system is being gamed by those in the former category. In the case of long-term care, some who would be ineligible for Medicaid coverage are able to get creative with their assets and wealth to become eligible for Medicaid coverage of long-term care costs.

Equity. Finally, the authors bring to light the fact that Medicaid program may be sufficiently complex so as to bar those who would otherwise be eligible. This could be the result of socioeconomic factors and educational disparities between those who are eligible for Medicaid and those who are not.

Walter L. Stiehm, Poverty Law: Access to Healthcare and Barriers to the Poor, 4 Quinnipiac Health Law Journal 279 (2001). Pages: 26.

This article identifies and explores a number of direct and indirect economic and non-economic barriers to access to healthcare services imposed on the low-income population. Well-documented factors such as race, ethnicity, culture, language, and education were explored. The article also discusses a number of other factors that are less well-known such as: ability to take time off of work, availability of child care services, and coverage of select services by Medicaid.

The article discusses the economic pitfall that much of the “working poor” population falls into by working low-income jobs that do not offer employer-funded healthcare programs but that same population makes too much money to be eligible for the Medicaid safety net. Also, education level is an important factor in barriers to access to healthcare services. These two factors are significant to the Black population because Blacks tend to be less educated and have lower income than whites, contributing to an imbalance in access to adequate healthcare services.

Also, the article discusses the lack of availability of physicians in low-income urban areas. Low reimbursement from the Medicaid program causes many physicians to not serve such populations, of which Blacks are a significant portion of enrollees.

Carol Ewald Bowen, Medicare and Medicaid: An Overview of Existing Programs and Compliance Issues, 2009 Westlaw 534744 (2009). Pages: 12.

This article provides a summary of the Medicare and Medicaid programs but primarily focuses on common compliance issues that arise in relation to practitioners and healthcare facilities. One of the more interesting points raised in the article is that the most common type of fraud under these programs are related to billing and coding (i.e. billing for services not actually provided, ect). As has been found in other readings, there seems to be diminishing incentives for providers to take patients enrolled in the federal programs, which could lead to attempts by providers to “up-charge” patients enrolled in these programs.

Melanie K. Gross, Invisible Shackles and the Compromise to the Medical Civil Rights Movement, 47 Howard Law Journal 943 (2004). Pages: 40

This primary focus of this article is an analysis of the Alexander v. Sandoval case and the implications that case has had, and continues to have, on the ability to combat racial discrimination in healthcare. This article also identified some of the prominent results of racial discrimination in healthcare. Specifically, the author purports that the issue of “access” today is less about Blacks getting in the door of healthcare facilities and more about what happens once they get in the door. The author points to racial disparities in disease areas such as: maternal and child care, cardiovascular care, cancer screening and diagnosis, and HIV/AIDS. Also, access to adequate healthcare providers and facilities contribute to the resultant racial disparities in health outcomes. The article also points out that Blacks tend to rely heavily on public clinics and ambulatory care centers that are being closed in favor of for-profit facilities outside of communities where reliance on Medicaid is heaviest.

Gwendolyn Roberts Majette, Access to Health Care: What a Difference Shades of Color Make, 12 Annals of Health Law 121 (2003). Pages: 18.

This article explores the racial basis of disparities in access to adequate health care. The author identifies four components that help define access: Affordability, availability, usability, and acceptability. The author contends that health disparities based on race are inevitable because the health care system is based on, and run by, a white male paradigm which fails to identify with those who fall significantly outside of that classification. The author points out, among other things, two facts that contribute to the discrimination experienced by minorities in access to health care: Availability of insurance and availability of health care providers and facilities. First, minorities are disproportionately represented in marginal low-paying positions that skimp on the provision of health care benefits to employees. The inference can be made that these “working poor” may have an income that is too high to be eligible for Medicaid and not significant enough to warrant an employer-sponsored health benefit plan. This represents a huge gap in coverage for many minorities.

Second, the author addresses some significant cases representing failed attempts by minorities to use Title VI to keep health care facilities in minority communities. The barriers to bring a winning claim of disparate impact against a health care provider are almost insurmountable, seeming to frustrate the purpose of Title VI to prohibit federally funded entities from acting in ways that tend to discriminate a population based on a protected class.

M. Gregg Bloche, Race and Discretion in American Medicine, 1 Yale Journal of Health Policy, Law, and Ethics 95 (2001). Pages: 27.

This article explores the racial and socioeconomic disparities in America’s health care system. The author proffers that American politics has a fascination with overt discrimination based on quality and access experienced by people of color while ignoring the disparate impact a discriminatory health care system has on those of a lower socioeconomic status, even though there is an identifiable link between race, socioeconomic status, and access to health care resources. The author believes that the issue should be framed in the context of the “race-related economic disadvantage arising from pervasive racial bias.”

Concerning Medicaid, the author believes that the reimbursement rates that physician’s receive for performing services to Medicaid enrollees serves as one barrier that creates an inherent disadvantage to those of lower socioeconomic status. Additionally, because private physicians are not compelled to accept Medicaid rates (private physicians, even those that accept Medicare patients, are generally not considered entities that receive federal funds according to Title VI) many enrollees are confined to public hospitals and clinics that are limited by tight financial constraints.


Michael Campbell, Did I Do That? An Argument for Requiring Pennsylvania to Evaluate the Racial Impact of Medicaid Policy Decisions Prior to Implementation, 82 Temple Law Review 1163 (2010). Pages: 15.

This article explores Medicaid policy decisions and the subsequent effects, both positive and negative, that such policy decisions have on minority communities in Pennsylvania. While the article focuses on state policies promulgated Pennsylvania, there are relevant solutions that apply to Medicaid as a federal policy on a broader level.

Throughout the country, Medicaid is a dominant force in residents’ payment for long-term nursing home care. However, Medicaid payments to non-government facilities are limited to Medicare reimbursement rates. Thus, there is little financial incentive for nursing homes to take residents enrolled in Medicaid. The interaction between the financial constraints and strategic financial maneuvering by nursing home administrators creates an interesting phenomenon which adversely impacts people of color. First, private nursing homes know that Medicaid reimburse rates are limited by federal regulations. Thus, the nursing homes move out of the urban areas (if they were even there in the first place) to the more affluent areas where Blacks are disproportionately underrepresented and nursing home residents pay for their services with private funds. Eventually, if the residents live long enough, those private funds will run out, requiring the residents to enroll in Medicaid to continue receiving services. Federal law prohibits nursing homes from discharging residents because they become enrolled in Medicaid. Thus, the private pay beds are converted to Medicaid beds, but the people in those Medicaid beds are not those originally intended to be beneficiaries of Medicaid, rather it’s the formely-affluent white resident who ran out of money, leaving historically-poor Blacks to find other, likely substandard, means of long-term care.

Thad Kousser, The Politics of Discretionary Spending, 1980-1993, 27 Journal of Health Politics, Policy & Law 639 (2002). Pages: 26.

Through detailed analysis the author attempts to demonstrate the influence that state politics have on funds allocated to the Medicaid program. The author makes clear that by “political power” the author means which party controls (greater than 50%) the state legislature, not the political party of the governor. Additionally, the author indicates that his focus is only on discretionary spending of the Medicaid program over which the states have considerable latitude.

One of the interesting findings that supported the author’s initial research was that studies have shown that the larger a state’s nonwhite population is, the less money the state’s leaders allocate to welfare program that tend to disproportionately benefit minorities. This seems somewhat backwards because, as statistics have shown, minorities are heavily depended on state welfare programs, including Medicaid. The proffered explanation for this phenomenon is that race is a more politicized issue in those states and state leaders, in an effort to not polarize white voters, curtail spending on such social benefit programs.

Ruqaiijah Yearby, African Americans Can’t Win, Break Even, or Get Out of the System: The Persistence of “Unequal Treatment” in Nursing Home Care, 82 Temple Law Review 1177 (2010). Pages: 29.

This article focuses primarily on the disproportionate representation of African Americans in low quality long-term nursing homes as compared to whites. As a basic foundation for the author’s argument, three levels of racial bias are identified: Structural, institutional, and interpersonal. The author’s argument of structural racial bias is of particular relevance in regard to the impact of structural barriers on African Americans’ ability to receive equal treatment via the federally funded health programs.

A national study of nursing homes conducted in 2004 concluded that the nursing home system consists of two tiers: high and low. The low tier nursing homes generally have Medicaid as the primary source of payment, poor quality of care, fewer nurses than high-tier counterparts, and a number of other unfavorable characteristics. Alarmingly, albeit not surprisingly, nine per cent of whites reside in these low tier facilities compared to 40 per cent of African Americans.

African Americans are disproportionately represented in the Medicaid program. The Medicaid program only provides limited resources to nursing home facilities that tend to serve a majority of Medicaid enrollees, sometimes paying less than the cost of services rendered. Consequently, because Blacks are over-represented in Medicaid and nursing home facilities that cater to a predominantly African American populations tend to be of lower quality, African Americans are adversely impacted in quality of care and resources allocated to long-term care facilities.

Laura Hermer, The States’ Challenge to the Affordable Care Act’s Medicaid Expansion, 33 Whittier Law Review 1 (2011). Pages: 10.

The author outlines the challenges that have been raised by a number of states to the Affordable Care Act [“ACA”]. These challenges arise as a result of fundamental tension between state and federal interests and authority [“Your money, my rules”]. Most famously, cases have arisen in Florida challenging the ACA’s eligibility expansion of the Medicaid program to include childless adults who are under 65. Additionally, the Constitutional challenges to the ACA focus on the ACA’s attempt to implement a near-universal program system of health care coverage. A controversial way the ACA seeks to accomplish this goal is by imposing a penalty, effective in 2014, on individuals who do not have some source of health care coverage. States claim that this is effectively Congress over-stepping its boundaries and regulating what should be considered a matter of state concern.

The author proposes that Medicaid be federalized. Under the current structure, Medicaid is funded by state and federal funds. States are required to provide a minimum level of coverage to a federally-mandated population but retain some latitude in who is covered and what services are covered. The author suggests changing the system to be wholly-run by the Federal Government and funded by a payroll tax, similar to the Medicare program. The increase in funding through this structure would allocate a portion of funds to increase provider reimbursement to at least match Medicare levels.

Matthew McKennan, Medicaid Access After Health Reform: The Shifting Legal Basis for Equal Access, 7 Seton Hall Circuit Review 477 (2011). Pages: 30.

The author focuses on the changes to the Medicaid that have been, and will continue to be, implemented as a result of the passing of President Obama’s Patient Protection and Affordable Care Act in 2010. The author identifies many of the well-known deficiencies of the Medicaid program, including low reimbursement rates that serve as strong disincentives to provide care, and subsequently access, to the low income population enrolled in the Medicaid program.

The crux of the author’s work is the fact that there need to be changes to the legal framework for holding the state and federal governments responsible for running a Medicaid program that doesn’t create a chasm between the care and services received by those enrolled in Medicaid and those covered by private insurance. The author suggests a private right of action to enforce the Medicaid Act, most specifically, §30(A) which requires that Medicaid rates be maintained at a level above that which becomes cost-prohibitive for providers treating Medicaid enrollees. The author proposes that this would hold states accountable for ensuring that the low income population’s access isn’t hampered by private physicians electing to not participate in the Medicaid program because of low reimbursement rates.

Sara Rosenbaum & Benjamin D. Sommers, Rethinking Medicaid in the New Normal, 5 St. Louis University Journal of Health Law & Policy 127 (2011). Pages: 20.

This article focuses on a discussion of the concerns related to the proposed expansion of Medicaid eligibility as a result of the Patient Protection and Affordable Care Act (“ACA”). The concern of particular relevance and importance is whether the proposed expansions will simultaneously expand access, rather than simply increase eligibility to a program that only nominally provides access to the intended populations. Low rates of provider reimbursement, leading to provider non-participation, serves as a significant barrier to access to many of Medicaid’s intended low-income beneficiaries.

As a remedy to the history of categorical exclusion, the authors address some of the proposed changes to Medicaid that are expected to increase access to the low-income individuals, including: Financial support from the Federal Government to support new enrollees and simplification of the Medicaid enrollment process coupled with streamlined eligibility determination. Ultimately, the authors conclude that the continuation of Medicaid is vital to the support of low-income individuals and that the ACA makes respectable efforts to increase access while eliminating barriers that have been a staple of the program.

Renee M. Landers & Patrick A. Leeman, Medicaid Expansion Under the 2010 Health Care Reform Legislation: The Continuing Evolution of Medicaid’s Central Role in American Health Care, 7 National Academy of Elder Law Attorneys Journal 143 (2011). Pages: 24.

This article provides a solid summary of the changes to the Medicaid program via the eligibility expansion provisions implemented under the Patient Protection and Affordable Care Act (“ACA”). The article also provides information on how these expansion provisions are supported financially as a result of covering “new” populations with a basic level of health care services. The article also addresses the opposition to the changes to the Medicaid program via the ACA. Of most recent interest, the ACA has been challenged by the states on the ground that the “penalty” is not a constitutional exercise of the Federal Government’s authority under the Commerce Clause.