Amicus Curiae Activities

The Center for Medicare Advocacy files amicus curiae (“friend of the court”) briefs in cases that may have a significant impact on access to health care for older adults and people with disabilities. Read examples of these briefs below.

Medicare Drug Price Negotiation cases

November 8, 2023

The Center joined a coalition of advocacy organizations, led by AARP, that is urging federal courts to uphold Medicare’s drug price negotiation program. The negotiation program, created by the Inflation Reduction Act (IRA), allows Medicare to use its bargaining power to negotiate prices and reduce the cost of expensive drugs for the first time. Drug companies have filed multiple lawsuits around the country attempting to strike down the program.

The coalition’s amicus brief, filed in a case bought by AstraZeneca Pharmaceuticals, explains that the negotiation program is urgently needed because it will help older adults and people with disabilities afford life-saving prescription drugs. Many Medicare beneficiaries are directly affected by high drug prices because they are responsible for Part D “coinsurance” amounts, based on a percentage of the drug’s price. Sadly, many beneficiaries still leave drugs at the pharmacy, skip doses, or forgo other necessities due to drug costs. Non-adherence to prescribed treatments can endanger beneficiaries’ health, result in costly hospitalizations, and even cause premature deaths. All Medicare beneficiaries are affected by high drug prices to some degree because monthly premiums for Medicare drug plans take prices into consideration.

The brief also explains that the drug price negotiation program will protect the financial integrity of Medicare and save taxpayers billions of dollars. Before the IRA, Medicare was prohibited by law from negotiating the price of drugs directly with manufacturers. This amounted to a special exemption for drug companies that other medical providers and suppliers do not have. Hospitals, nursing facilities, and physicians participating in Medicare have all faced limits on payments for decades, ensuring that their services are affordable for beneficiaries and taxpayers. But drug companies received a special carve-out. The Medicare negotiation program begins to bring payment for prescription drugs in line with Medicare’s payment for other items and services.

Braidwood Management, Inc. v. Becerra

June 27, 2023

The Center joined the National Health Law Program, Justice in Aging, the National Black Justice Coalition, and numerous other health care advocates in urging the Fifth Circuit Court of Appeals to reverse a ruling that struck down the Affordable Care Act’s requirement for cost-free coverage of certain preventive services. The ACA mandated that most private insurance plans cover preventive health services, such as screening tests and immunizations, at no cost to patients, A federal district court in Texas found that the requirement that specific expert committees recommend covered preventive services is unconstitutional, and that the requirement to cover pre-exposure prophylaxis (PrEP) medication for HIV prevention violates the religious rights of certain employers. The amicus brief explains the negative repercussions that could result if the ruling is upheld, particularly for low-income individuals.

Though it appears that Medicare coverage of preventive services would not be limited by this challenge, the Center for Medicare Advocacy strongly opposes striking down cost-free coverage for preventive services in other types of insurance. Robust preventive care is essential for good health outcomes, health equity, and improved quality of life. There are also clear implications for the Medicare program if individuals cannot access free preventive care, forgo screenings and other services, and then have more advanced conditions when they later join Medicare.

Fain v. Crouch

December 7, 2022

The Center for Medicare Advocacy co-authored an amicus brief with the National Health Law Program (NHeLP) in support of West Virginia Medicaid beneficiaries seeking coverage of medically necessary gender affirming care. In Fain v. Crouch, 2022 WL 3051015, at *14 (S.D.W. Va. Aug. 2, 2022), a federal district court held that excluding coverage of gender affirming surgery as a treatment for gender dysphoria “invidiously discriminates on the basis of sex and transgender status.” The court determined that West Virginia’s Medicaid program is violating the Equal Protection Clause of the Constitution, the Affordable Care Act, and the Medicaid Act. The state appealed.

In their brief to the Fourth Circuit Court of Appeals, NHeLP and the Center explain that Medicaid coverage of gender affirming care is not optional, and correct West Virginia’s assertions about Medicare’s coverage of such care. Medicare revoked a nationwide ban on coverage of gender affirming surgery in 2014, finding the care to be “safe and effective.” In its appeal, West Virginia argues that Medicare’s 2016 decision not to issue a national policy on coverage of gender affirming surgery is relevant to whether Medicaid should cover the service. However, while Medicare declined to issue a national policy on coverage of such care, most medical services covered by Medicare are not governed by national policies. Moreover, Medicare does cover gender affirming surgery when it is reasonable and necessary for the individual beneficiary. Read the brief for more details.

Health and Hospital Corporation of Marion County, et al., v. Talevski

September 23, 2022

The Center joined AARP, the National Consumer Voice for Quality Long-Term Care, and other advocates in urging the U.S. Supreme Court to affirm that residents of state-run nursing facilities can go to court to enforce important rights under the Nursing Home Reform Act. The NHRA mandates that nursing homes maintain minimum standards of care, and it includes a “Residents’ Bill of Rights.” Those rights include freedom from abuse and neglect, freedom from illegal discharges, and freedom from chemical restraints administered for staff’s convenience. As explained in the advocates’ amicus brief, these legal rights “are a matter of life and death for nursing facility residents. Even today, residents experience abuse, neglect, and dangerously poor care in many facilities.” The COVID-19 pandemic has only exacerbated the vulnerability of nursing home residents. The mere existence of rights in the law is not sufficient, and government oversight of nursing facilities has proven to be inadequate. Residents must be able to go to court to hold nursing homes accountable.

The Talevski case is a threat not only to nursing home residents but to the millions of people who rely on “Spending Clause” programs for vital benefits such as Medicaid, nutritional assistance, and public housing. The petitioners have asked the Supreme Court to strip the longstanding right of these beneficiaries to enforce the law and correct violations of public benefit programs in court.  If the Supreme Court reverses decades of precedent, a critical tool to redress violations of law will vanish.

State of New York, et al. v. U.S. Department of Health and Human Services

September 17, 2020

This amicus brief, submitted in support of New York and 22 other states, argues against the rollback of the Affordable Care Act’s anti-discrimination provision, known as Section 1557. Discrimination and communication barriers prevent people from receiving timely, medically necessary health care. Section 1557 was intended to address that very problem. The brief explains that the federal government’s recently-finalized Section 1557 rule curtails the types of health care entities that are covered by the law. This permits many entities, such as insurers, to engage in practices that harm older adults, people with disabilities, Limited English Proficiency (LEP) individuals, and LGBTQ+ people. The rule also removes notice, tagline, and effective communication requirements that enable people with disabilities and LEP individuals to communicate with health care providers. The brief points out the importance of non-discrimination provisions being applicable to Medicare Advantage plans, and the importance of notice and tagline requirements for LEP Medicare beneficiaries, including the fact that Section 1557 goes further than existing language requirements for Medicare Advantage and Part D prescription drug plans. The Center is pleased to join the amicus brief with the National Health Law Program, Justice in Aging, the Disability Rights Education and Defense Fund, and numerous other organizations that advocate for older adults and people with disabilities.

Talevski v. Health and Hospital Corporation of Marion County

August 7, 2020

The Center joined AARP, the National Consumer Voice for Quality Long-Term Care, and other advocates in supporting a private right of enforcement for residents of state-run facilities under the Nursing Home Reform Act. The NHRA mandates that nursing homes maintain minimum standards of care and it includes a “Residents’ Bill of Rights.” Those rights include freedom from abuse and neglect, freedom from illegal discharges, and freedom from chemical restraints administered for staff’s convenience. As explained in the advocates’ amicus brief filed with the Seventh Circuit Court of Appeals, these legal rights “are a matter of life and death for nursing facility residents. Even today, residents still experience abuse, neglect, and dangerously poor care in many facilities.” The COVID-19 pandemic has only exacerbated the vulnerability of nursing home residents, as visitation restrictions have limited contact with the family members and advocates who usually play a key role in protecting them.

The mere existence of rights in the law is not sufficient and regulatory oversight has proven to be inadequate. Residents must be able to go to court to hold nursing homes accountable. The brief urges the Seventh Circuit to join the Third and Ninth Circuit Courts of Appeals in holding that residents can bring an action under Section 1983 of the Civil Rights Act against state-run facilities to enforce violations of the NHRA.

Bellin v. Zucker

July 8, 2020

When New York residents apply for personal care services at home through the state Medicaid program, the initial determination of how many hours of care will be provided is made by a managed care organization (MCO). Although individuals have statutory and constitutional rights to challenge denials of service, they have not been allowed to appeal when they disagree with the number of personal care hours that the MCO initially determines are necessary. In this proposed class action, the named plaintiff was not allowed to appeal when an MCO provided far fewer hours of personal care services than she requested and required. The Center for Medicare Advocacy joined the National Health Law Program and Justice in Aging in submitting an amicus brief to the Second Circuit in support of the plaintiff. The organizations explained why such appeals are critical in a managed care system where there are incentives to provide less care, and why the plaintiff has stated a valid constitutional due process claim. Like the Center’s Alexander v. Azar case involving appeals by hospital patients placed on “observation status,” Bellin involves due process protections for people who rely on public health programs such as Medicare and Medicaid.

California et al. v. Texas et al.

May 13, 2020

The Center for Medicare Advocacy, along with AARP and Justice in Aging, filed an amicus brief urging the U.S. Supreme Court to uphold the Affordable Care Act. The three organizations highlight the ACA’s critical protections for older adults and the disastrous ramifications that will ensue if the law is struck down. The three organizations also filed an amicus brief in January 2020 asking the Supreme Court to grant review of the case, and one with the Fifth Circuit Court of Appeals in April 2019. The Fifth Circuit ruled that because Congress reduced the penalty for remaining uninsured to $0, the ACA’s mandate to purchase insurance can no longer be considered a tax, which is what rendered it constitutional according to the Supreme Court (NFIB v. Sebelius). Although it was clear that Congress did not intend to strike down the entire ACA when it reduced the penalty, the Fifth Circuit relied on unsound reasoning to conclude that many of the ACA’s provisions may not be “severable” from the mandate and therefore must also be dismantled. The Center urges the Supreme Court to reverse the Fifth Circuit’s decision.

Invalidating the ACA would directly harm older adults and people with disabilities by throwing the Medicare program into fiscal and administrative chaos and eliminating cost savings for beneficiaries. Read the Center’s full statement here.

Akebia Therapeutics Inc. v. Azar

March 16, 2020

This amicus brief urges the U.S. Court of Appeals for the First Circuit to allow Medicare Part D coverage of a medication for people with chronic kidney disease. When the Medicare agency abruptly barred coverage of the FDA-approved medication, the manufacturer (Akebia) requested injunctive relief based on the Administrative Procedure Act. In urging the court to reverse the district court’s denial of a preliminary injunction, the Center seeks to protect the interests of beneficiaries who need the medication against an erroneously restrictive interpretation of Medicare coverage law. The Center also filed an amicus brief with the district court in this case.

California v. U.S. Dep’t of Homeland Security and other “public charge” cases

January 2020

The Center joined numerous other organizations that advocate for older adults in filing amicus briefs in several lawsuits challenging the Department of Homeland Security’s “public charge” rule. The regulation, finalized in 2019, represents a drastic change in how applicants for lawful permanent residency (green cards) are evaluated, and will have a particularly negative impact on older immigrants, including those who are dually eligible for Medicare and Medicaid. Under the public charge rule, use of programs that are often vital to the livelihood of older adults, such as Medicaid, SNAP (food stamps), or housing benefits, can jeopardize the pathway to a green card. The rule also makes being over 62 or having a treatable medical condition, “negative factors” in the public charge determination. Amicus briefs were filed in the U.S. Courts of Appeal for the Second and Ninth Circuits.