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.
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.
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.
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.
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.
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
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.