Groups allege civil rights violations of Latinos covered by Medi-Cal

California's low Medicaid reimbursement rates have led to a dearth of care for many of the state's Latino residents, and that's a violation of their civil rights, according to a complaint filed Tuesday with HHS' Office for Civil Rights (OCR).

Advocates want the OCR to order the state to raise primary-care and certain specialty-care reimbursement rates.

“By lowering reimbursement rates as Latinos have increased their use of Medi-Cal, California undermines strides recently made in expanding health access, and treats Latinos as second-class patients,” Thomas Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund, one of the groups behind the complaint, said in a statement.

More than 7 million Latinos are enrolled in Medi-Cal. Latinos comprised 63% of Medi-Cal enrollees in 2014, according to the complaint.

The groups filed the complaint on behalf of Analilia Jimenez Perea and her son Saul Jimenez Perea, who has cerebral palsy and is semi-paraplegic. Perea had been previously unable to secure doctors' appointments and treatment for her son, now 31, because she couldn't find doctors who would accept Medi-Cal patients.

The California Department of Health Care Services was not able to comment Tuesday afternoon.

Catha Worthman, an attorney for those bringing the complaint with Feinberg, Jackson, Worthman & Wasow, said she's not aware of any other similar complaints that have been filed in California or anywhere else in the country.

Other groups behind the complaint include the Civil Rights Education and Enforcement Center and the National Health Law Program, which took action after Service Employees International Union-United Healthcare Workers West brought it to their attention.

The groups also filed the complaint on behalf of Jose Abel Berumen, a 61-year-old Oakland resident who had to wait a year-and-a-half for a hernia operation because he too couldn't find doctors willing to accept Medi-Cal.

The groups allege that Medi-Cal's low reimbursement rates have created a “separate and unequal system of healthcare” in violation of the Civil Rights Act, HHS' implementing regulations and the Affordable Care Act.

Worthman said the OCR could respond by ordering a rate increase and/or by referring the matter to the Justice Department, which could take action in court.

The complaint follows a U.S. Supreme Court decision earlier this year. In that case, Justice Antonin Scalia, who wrote the majority opinion, said that the supremacy clause of the U.S. Constitution, which states that federal laws take precedence over state laws, does not allow providers to sue state Medicaid agencies over rates. He also wrote that the Medicaid Act does not allow private parties to enforce the part of the law that requires state plans to assure rates are “consistent with efficiency, economy and quality of care.”

In that same case, however, Justice Sonia Sotomayor wrote in a dissenting opinion that the court's decision would mean that only HHS may go after state Medicaid agencies that underpay providers. HHS may withhold funds from states that don't comply.

Worthman, however, said that the earlier case won't affect this one because it involved a different part of the Medicaid Act.