Federal Oversight, State Policy Making, and the Courts: An Empirical Analysis of Nursing Facility Litigation Under the Boren Amendment

Abstract

Few examine the role of the courts in shaping federal regulation of state policy decisions in the health sector. This article reports content analysis of all reported case decisions resulting from nursing facility litigation under the Boren Amendment, which represented the federal government's main foray into regulating state payment levels under Medicaid between 1980 and 1997. Results indicate that 34 states had at least one lawsuit, with relatively frequent litigation taking place in a handful of states. The pace of litigation varied, however, increasing from an average of 3.2 to 9.3 cases decided per year between 1981–1990 and 1991–1994, before declining to 2.1 during 1995–2001. At one level, litigation contradicted Congress's initial intent to reduce federal oversight of state rate‐setting behavior. At another level, it reflected broader policy‐making trends affecting the relative balance of power between state and federal actors.

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