Securing Health Rights for Those in Need

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Securing Health Rights for Those in Need
Litigating After Iqbal Medicaid Cases September
14, 2009 Webinar Hosted by The Herbert Semmel
Federal Rights Project Presentation by Jane
Perkins, perkins_at_healthlaw.org
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Iqbal Concerns

• Souped-up plausibility standard
• Qualified immunity
• Pattern and practice cases

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Medicaid Cases

• Approx. 20 cases, to date
• Qui tam actions health care providers pro se
• Examples
• McVicker v. Hartfield, 2009 WL 2431257 (S.D.
  Ohio, Aug. 6, 2009)
• US ex rel. Duxbury v. Ortho Biotech Prod., 2009
  WL 2450716 (1st Cir. 2009)
• Personal Care Prod. v. Hawkins, 2009 WL 2406253
  (W.D. Tex., Aug. 3, 2009)
• Ravenwood v. Daines, 2009 WL 2163105 (W.D. N.Y.,
  Jul. 17, 2009)
• See generally Scott v. Clark Co. Social Services,
  2009 WL 1940097 (D. Nev., Jul. 7, 2009)
• QA, The Iqbal Decision Affects Civil Pleading
  (July 2008), available at www.healthlaw.org

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Recommendations for Preparing a Medicaid Complaint

• Read Iqbal refer to it
• Fully establish context
• Do more than recite elements of a legal claim
• Set out concrete facts
• Avoid sweeping factual statements
• Avoid conclusory statements
• or use only after facts are established
• Explain each defendants unlawful conduct
• Account for alternative explanations for conduct

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Recommendations for Responding to Motions to
Dismiss

• Distinguish your case from Iqbal
• E.g. Medicaid cases do not involve national and
  international security emergencies
• Remind Court that Rule 8(a) still only requires
  notice pleading
• Argue the allegations are reasonable and support
  the next litigation phasediscovery to support
  the claim
• If concern, include arguments/allegations to
  enable court to determine that plaintiffs can
  cure the problem
• Ask court to allow you to amend the complaint