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Dechert attorneys have come one step closer to challenging the state of Michigan to provide its child population with guaranteed health care under the Medicare Act. They will now be able to argue their case, Westside Michigan Mothers v. Haverman, before the U.S. District Court for the Eastern District of Michigan in Detroit. That same court had thrown the case out on the grounds that the case had no federal court jurisdiction, nor a place in state court. The district court said that the Medicare Act was not law but rather a contract between the government and the state. It also said a suit in state court would be barred by sovereign immunity. But all that changed on appeal Wednesday with the decision of the 6th U.S. Circuit Court of Appeals, which disagreed with the district court and reaffirmed that “acts passed under Congress’ spending power are supreme law” and not a contract with individual states. The 6th Circuit reversed the district court and sent the case back for a rehearing. Dechert attorney Jennifer R. Clarke represents plaintiff Westside Mothers, a welfare-rights organization that argues that Michigan is not living up to its health care obligations to children as required under “the Medicaid Act and related laws.” According to court papers, Westside says that the state is required to provide the early and periodic screening, diagnostic and treatment services required by federal law for Medicaid recipients under age 21 but that it has failed to do so. The issue is critical because Medicaid “is one of the last ‘entitlement statutes,’” said Thomas K. Gilhool of the Public Interest Law Center of Philadelphia and one of the plaintiffs’ counsel. “That means everyone who qualifies has to be served,” he said. The Medicaid Act, he said, “is the basic health law of the U.S.” But the plaintiffs allege that Michigan doesn’t even publicize Medicaid services and that many residents aren’t even aware they exist, he said. “The same thing is occurring in many other states,” he said. Other plaintiffs in the case include Families On the Move Inc., the American Academy of Pediatrics and the American Academy of Pediatric Dentists. The Michigan League for Human Services and the Michigan Welfare Rights Organization were dismissed as plaintiffs lacking constitutional standing. Both Michigan Community Health Director James Haveman and former state Medical Services Administration Deputy Director Robert Smedes are named defendants in Westside. Smedes no longer works for the state, according to wire reports. The case had been thrown out by U.S. District Judge Robert H. Cleland in what Clarke called an unprecedented argument made in a 90-page opinion. Clarke said she was pleased with the ruling of the appeals court. “Now we’ll get to prove our case,” she said, by showing specifically how children are receiving no health care, in violation of the Medicare Act. She also said the ruling is great news because plaintiffs who had thought they had no chance of getting to court on this issue will now be able to argue it on the merits. The decision is also significant for similar actions going forward in other states, Clarke said. “Some states had used the decision to dismiss cases,” she said. On May 9, the 4th U.S. Circuit Court of Appeals in North Carolina echoed Wednesday’s decision allowing a federal suit to go forward. The issue has also been argued before the 5th U.S. Circuit Court of Appeals in Texas, which is considering the issue, Clarke said. Clarke said she became involved in the case after being contacted by the Public Interest Law Center of Philadelphia. PILCOP brought a similar action in Pennsylvania that was resolved in 1990 “after years of litigation,” Clarke said. She said PILCOP was “looking to export good lawyering around the states” for this issue and asked Dechert whether it would be interested. PILCOP and Dechert attorneys looked at many states but settled on Michigan because it’s “a big state with many people eligible for Medicaid.” “But the statistics there are getting steadily worse,” Clarke said. Gilhool noted that there were more than 12 amicus briefs submitted on behalf of the plaintiffs. “That’s not unusual for cases at the Supreme Court, but it’s very unusual for cases at the court of appeals,” he said. Particularly important was that the American Academy of Pediatrics and the American Academy of Pediatric Dentists, which had both been dismissed as plaintiffs for lack of standing, are back in the case, Gilhool said. “It is very important that doctors can assert the rights of their patients, especially people who have less access to lawyers as legal services organizations get shut down,” he said. Clarke said she was assisted by Dechert health associate Robin P. Sumner and by Thomas F. Munno, a commercial litigation partner in Dechert’s New York office. She said although she is sure there will be more cases like this, right now she is concentrating on Westside.

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