Will ObamaCare open states to lawsuits over Medicaid access, wait times?

Republicans tried to get tort reform integrated into the ObamaCare bill to no avail.  Now it appears that the Democrats may have tried a little tort “reform” themselves — by enabling lawyers to file big-ticket lawsuits against states over Medicaid access and wait times.  Jon Ward of the Daily Caller unearths another of Nancy Pelosi’s surprises that could only be discovered after the bill got passed:


Tucked away on page 466 of President Obama’s 2,704-page health-care bill is a provision that changes the definition of “medical assistance,” the term describing what states are required to provide to Medicaid recipients.

States have in the past been required to provide payment for services to physicians. Now, under the new definition, states will be liable for ensuring provision of “the care and services themselves.”

In other words, states are legally on the hook not only to ensure that Medicaid recipients are paid for, but that they’re seen by a doctor.

Medicaid recipients have found it increasingly difficult to be seen by doctors, as states in extreme economic duress have cut payment rates. …

“With the expanded definition, it leaves every state vulnerable to a new wave of lawsuits any time someone cannot access a service, even if that service is limited by virtue of the rates we pay,” said Alan Levine, Louisiana’s secretary of health and hospitals, in a recent memo prepared for fellow state government officials.

Levine wrote: “DHH cannot estimate the cost of this, but it is not even worth estimating. It will be substantial.”

Consider this bill the anti-tort reform bill.  It’s a big, ribbon-wrapped gift to the litigation industry.  As more doctors opt out of Medicaid systems, wait times will get longer, and people will start filing massive class-action lawsuits against states over access.  Instead of solving the problem through the political system, the bill allows ambulance chasers to get courts to bypass voters and have courts set rates instead.


It’s not just the antithesis to tort reform; it’s the antithesis of responsible democratic governance as well.  And don’t think for a moment it was accidental.  Henry Waxman apparently authored this change, and he’s a big fan of lawsuits:

Victor Schwartz, a tort law expert at Shook, Hardy and Bacon in D.C., said that Waxman sees trial lawyers as positive agents of change.

“He sees tort law as a regulatory engine that’s needed just beyond legislation. He sees trial lawyers as heroic who are there to help the ordinary people,” Schwartz said.

Think of this in positive terms.  We may get a lot fewer doctors coming out of colleges in the future, with all of the restrictions they face.  But we’re going to get bumper crops of lawyers looking for big paydays in the class-action lawsuit business against states that attempt to responsibly control Medicaid spending.

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John Stossel 5:30 PM | July 13, 2024