Emergency Medicine Advocacy Handbook

Ch. 22. The Fight Never Ends: Judicial Challenges

Jacqueline Buchak, MD; Colten J. Philpott, MD, MPH, MBA, MHA, MPA; Heidi Knowles, MS, MD, FACEP

Chapter 22. The Fight Never Ends: Judicial Challenges

Recorded by Lisa MacDonald, MD | Icahn School of Medicine at Mount Sinai

The United States is governed by two distinct legal systems: state and federal. Once legislation is passed through the legislative branch, signed into law by the executive branch, and enacted by the regulatory agencies, it is still at risk of being changed when contested through the legal systems. It is because of this that we must stay vigilant for any changes that may affect our specialty and our patients.

While advocacy is often focused on the legislative process, judicial actions can be an important tool in the armamentarium of an effective advocate.

Why It Matters to EM and ME

While advocacy is often focused on the legislative process, judicial actions can be an important tool in the armamentarium of an effective advocate. In Washington State, legislators attempted to limit Medicaid reimbursement to three emergency departments visits per year for “non-emergent” visits. A non-emergent visit was defined by regulators in that case to include chest pain, abdominal pain, seizures, or miscarriage among a list of 700 codes. Emergency physicians through ACEP were able to respond to this proposition and stopped these limitations from passing through legal action after they were unable to stop it at the legislative and regulatory level.¹ If the physicians there had given up without involving the courts, emergency medicine might be quite different today.

How We Got Here

The courts, both state and federal, are governed by their enabling documents, generally the state or federal constitution and relevant laws passed to regulate their administration. These courts are largely defined by jurisdiction, or the types of cases they are authorized to review. State courts hear cases that involve state laws and are not directly against the United States, as well as cases involving certain specific federal laws (eg, antitrust, patent, copyright). Most criminal cases are heard in state courts, as they typically are violations of local or state law. Federal courts, having limited jurisdiction, only hear cases involving laws passed by Congress and the U.S. Constitution, as well as cases that arise between citizens of different states.

The State Court System

The state court system is organized as a hierarchy, including trial courts and a state supreme court. Trial, appellate, and state supreme court judges are typically elected at the county and municipal levels or appointed by the governor. Superior courts review both criminal (violent and nonviolent) and civil cases, providing the first opportunity for legal review of a concern. For purposes of emergency medicine advocacy, most issues will be of a civil nature as criminal matters are at the discretion of the state charging entity, not the individual.

In civil litigation, either side who loses at trial may appeal to the state appellate courts. These appeals are argued before a panel of judges rather than a jury. These judges reach a decision by majority vote, allowing the original court decision to stand, be reversed, or they can call for a new trial altogether. Appellate decisions can be appealed to the state supreme court, the state’s last level of appeal. It is important to note that at any level of the appellate process, the judges are evaluating for inappropriate application of the law, not hearing the case de novo.

The Federal Court System

Federal cases start in a U.S. District court, the trial court of the federal court system. Each state has one or more federal districts, depending on population. These cases can be appealed at one of the 13 Circuit Courts, the first level of appeal. The final level of appeal is the United States Supreme Court in Washington, D.C., which oversees all federal courts. The U.S. Supreme Court consists of eight associate justices and one chief justice, for a total of nine justices. Federal judges are all nominated by the U.S. president and confirmed by the Senate, and they preside for life unless impeached or voluntarily retire.

Many issues on the federal level are of interest to emergency physicians, the most recent of which include the impacts of COVID-19 mandates, laws regarding surprise billing, and the 2022 overturning of the Roe v. Wade decision.

Current State of the Issue

A prime example of the effects on regulatory efforts of the judicial process is the onslaught of challenges against the CDC mandates during the COVID-19 pandemic. Orders for the mandatory use of face masks on public transportation, under the Regulations to Control Communicable Disease,² were challenged in many states, as some consider this a violation of rights. A federal judge in Florida overturned the rule, and the CDC appealed. Ultimately, the power of the CDC to lead mitigation efforts in future pandemics will be determined by this decision.

Legislation, even when newly passed, can be challenged throughout the initial implementation process. The 2020 No Surprises Act (NSA), which took effect Jan. 1, 2022, created federal protections to shield patients from balance billing for out-of-network emergency care or scheduled out-of-network services at in-network facilities, and it prohibited higher deductibles for out-of-network care than for in-network care (without patient notification and consent). This Act had bipartisan support when passed by Congress, but it was then challenged in court. To date, multiple organizations, including ACEP, the American Medical Association, the American Society of Anesthesiologists, and the American College of Radiology have all filed lawsuits contesting the No Surprises Act. Importantly, the Texas Medical Association (TMA) and Emergency physician, Dr. Adam Corley, are the plaintiffs in one of these suits.³ The initial ruling, in the U.S. District Court for the Eastern District of Texas, ruled in favor of the TMA, effectively invalidating part of the bill the IDR process nationwide. Shortly after, CMS and the Department of Labor (DOL) issued a statement that they were revising their rules the IDR based on the Texas court ruling. While the litigation was ongoing at the time of this publication, addressing the issues raised by the plaintiffs could help make the appeal moot before it is heard.

Even when a law is considered settled, the relevant supreme court at the state or federal law can change precedent. In an impactful recent change of law, the federal Supreme Court overturned the Roe v. Wade decision, altering access to health care for millions of Americans. Roe v. Wade was an historic decision made in 1973, ruling that the U.S. Constitution protects a woman’s choice to have an abortion,⁴ and it ultimately invalidated many state and federal laws regarding abortion. In 2018, the Dobbs v. Jackson Women’s Health Organization case challenged Mississippi’s 2018 Gestation Age Act, a law that had banned abortions after 15 weeks (exceptions were made for fetal abnormalities and medical emergencies). The Jackson Women’s Health organization sued, and the federal courts stated this law contradicted a previously established 24-week age of viability. The state of Mississippi subsequently asked the Supreme Court to hear the case. The Court agreed, limiting it to one question: “whether all pre-viability prohibitions on elective abortions are unconstitutional.”⁵ On June 24, 2022, the U.S. Supreme court issued a 5-4 decision to overturn the Roe v. Wade ruling, returning the decision regarding abortion to the states.

Moving Forward

We must continue to be vigilant in monitoring legislation that will affect EM and our patients, not just in the lawmaking process, but in the subsequent years as laws are challenged in court. As an individual, you can start by establishing relationships with your representatives at the local, state, and federal level. These relationships are key to ensuring that laws passed and rules made are beneficial, both for our patients and our specialty.

Maintaining membership in specialty organizations that represent you is another important way to contribute to this process, as these organizations rely on member support to monitor for threats/changes and to advocate, including through legal challenge, on behalf of you and the patients you serve.

• Advocacy does not end once a bill is passed and becomes law.
• Legal challenges can have a significant effect on how laws are interpreted and enforced.
• How laws are interpreted and enforced can affect every level of the health care system, from patients and clinicians to insurers and health care systems.
• We must be vigilant in monitoring for these threats, advocating for our patients and our specialty when needed.

References

1. Gallegos A. Judge Halts Washington State Medicaid limits on ED visits. AMA News. December 5, 2011. Available at: https://amednews.com/article/20111205/government/312059956/4/.
2. Regulations to control communicable diseases. 42 U.S. Code § 264. 118^th 2023.
3. Texas Med. Ass’n v. U.S. Dep’t of Health & Human Services, No. 6:21-cv-425 (E.D. Tex. Feb. 23, 2022).
4. Roe v. Wade. 410 S. 113 (1973).
5. Perry SP, Jipping T. "Dobbs v. Jackson Women's Health Organization: An Opportunity to Correct a Grave Error". Edwin Meese III Center for Legal and Judicial Studies. 2021;16: Legal Memorandum No. 293.