Enforcement of the Medicaid Act under 42 USC § 1983 after Gonzaga University v Doe: The "dispassionate lens" examined

University of Chicago Law Review

Volumn 74, Issue 3, 2007, Pages 991-1021

  Dunne, Brian J ^a  

^a UNIVERSITY OF CHICAGO   (United States)

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EID: 36248968575     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (134)

1. 536 US 273 (2002).
2. See, for example, Deisenroth v Holsinger, 356 F Supp 2d 763, 767 (ED Ky 2005).
3. 42 USC § 1396 (2000).
4. 42 CFR § 430.0 (2006) ("Program Description" of the Medicaid Act).
5. US Const Art I, § 8, cl 1 ("The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.").
6. 42 USC § 1396 et seq (2000). In particular, § 1396a et seq sets out many of the Act's most important substantive guidelines, including the so-called equal access (§ 1396a(a)(30)(A)), reasonable standards (§ 1396a(a)(17)), reasonable promptness (§ 1396a(a)(8)), comparability (§ 1396a(a)(10)(B)), availability (§ 1396a(a)(10)(A)), and freedom of choice (§ 1396a(a)(23)) provisions. Located elsewhere within the Act are provisions governing the early and periodic screening, diagnosis, and treatment of Medicaid-eligible children (the "EPSDT" requirements) (§§ 1396a(a)(43) et seq, 1396r et seq) and certain requirements related to intermediate care facilities for the mentally retarded (the "ICF/MR" provisions) (§ 1396d(a)(15)).
7. Various federal regulations supplement and clarify the statutory provisions of the Medicaid Act. The question of whether federal regulations (as opposed to federal statutory provisions) can ever grant privately-enforceable rights is an interesting and important question in its own right, implicating nondelegation principles of administrative and constitutional law. That issue is, however, beyond the scope of this Comment. For a recent exploration of this topic, see John A. McBrine, Note, The Selective Use of Administrative Regulations in Creating Rights Enforceable through § 1983 Actions, 46 BC L Rev 183, 183 (2004) (arguing that "both our modern administrative state and public policy considerations support the derivation of § 1983 interests from federal regulations").
8. 42 CFR § 430.0.
9. See, for example, Marlaina S. Freisthler, Comment, Unfettered Discretion: Is Gonzaga University v. Doe a Constructive End to Enforcement of Medicaid Provider Reimbursement Provisions?, 71 U Cin L Rev 1397, 1397 ("Currently, the Medicaid program serves eleven percent of the nonelderly population, and costs in excess of $184 billion annually. In fact, Medicaid is second only to education in state budget expenditures, and amounts to forty percent of federal contributions paid to states.") (internal citations omitted).
10. Id at 1397-98, quoting Sidney D. Watson, Medicaid Physician Participation: Patients, Poverty, and Physician Self-interest, 21 Am J L & Med 191, 191 (1995).
11. See Frederick H. Cohen, An Unfulfilled Promise of the Medicaid Act: Enforcing Medicaid Recipients' Right to Health Care, 17 Loyola Consumer L Rev 375, 390 (2005). The case referenced is Memisovski v Patla, No 92-C-1982, on which Cohen served as lead counsel for the plaintiffs. See generally Memisovski v Maram, 2004 WL 1878332 (ND Ill Aug 23, 2004) (memorandum opinion and order issued twelve years after initial filing of action).
12. See, for example, Memisovski, 2004 WL 1878332 at *15 ("Pediatric practices throughout Cook County have closed to new Medicaid patients due to economic problems caused by a high Medicaid pediatric population and low Medicaid reimbursement rates and slow Medicaid payment systems."). See also id at *17 ("Most doctors in Cook County will either not see children on Medicaid or significantly limit the number of children on Medicaid that they will accept as patients.").
13. See, for example, id at *12 (finding that Illinois's Medicaid reimbursement rates "are, on average, approximately half of the Medicare reimbursement rates for the same service, delivered in the same location, by the same provider"). See also id at *13: A pediatrician practice relying solely on Medicaid beneficiaries maximum reimbursements could not survive since Medicaid pays nearly 10 percent less than the median practice costs. The major studies on physician reimbursement rates have concluded that physician reimbursements are the predominant factor in the decision to participate in the Medicaid program at all, to participate in a limited fashion, or to participate fully.
14. 42 USC § 1396a(a)(30)(A).
15. See Sasha Samberg-Champion, Note, How to Read Gonzaga: Laying the Seeds of a Coherent Section 1983 Jurisprudence, 103 Colum L Rev 1838, 1839 (2003).
16. See, for example, Pennhurst State School and Hospital v Halderman, 451 US 1, 52 (1981) (White dissenting) ("[A] funds cutoff is [perceived to be] a drastic remedy with injurious consequences to the supposed beneficiaries of the Act.").
17. Samberg-Champion, Note, 103 Colum L Rev at 1839 (cited in note 15).
18. Edward A. Tomlinson and Jerry L. Mashaw, The Enforcement of Federal Standards in Grant-in-Aid Programs: Suggestions for Beneficiary Involvement, 58 Va L Rev 600, 620 (1972) (illustrating how the agency enforcement of grant-in-aid programs has been deficient).
19. See 42 USC § 1396d(b) (providing that FFP will range from 50 percent to 83 percent depending on a state's average per capita income). See also Federal Medical Assistance Percentages, online at http://aspe.os.dhhs. gov/health/fmap.htm (visited Apr 28, 2007) (providing tables listing FFP for each state and the District of Columbia for fiscal years 1996-2007).
20. See generally James F. Blumstein and Frank A. Sloan, Health Care Reform through Medicaid Managed Care: Tennessee (TennCare) as a Case Study and a Paradigm, 53 Vand L Rev 125, 141-44, 148-49 (2000) (commenting that "[a] form of state-level political dependency . . . resulted from state responses to the incentives that stemmed from the allure of federal matching moneys").
21. See Mark Andrew Ison, Note, Two Wrongs Don't Make a Right: Medicaid, Section 1983 and the Cost of an Enforceable Right to Health Care, 56 Vand L Rev 1479, 1484-85 (2003).
22. Id.
23. See id at 1485 (observing that the exact figure would be determined by the level of FFP).
24. Samberg-Champion, Note, 103 Colum L Rev at 1838 (cited in note 15).
25. Id.
26. 448 US 1 (1980).
27. 42 USC § 1983 (2000) (emphasis added). Section 1983 reads, in relevant part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
28. Thiboutot responded to recent Supreme Court decisions restricting the situations in which a private right of action under a federal statute would be implied. See Transamerica Mortgage Advisors, Inc v Lewis, 444 US 11, 19-20 (1979) (restricting the availability of private actions under the Investment Advisers Act of 1940); Touche & Co v Redington, 442 US 560, 570 (1979) (restricting implied private actions under the Securities Exchange Act of 1934). By construing § 1983 to expressly authorize civil suits for the violation of federal statutory rights, the Court avoided the constitutionally difficult situation of a federal right unprotected by any federal remedy. See Marbury v Madison, 5 US (1 Cranch) 137, 163 (1893) ("The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right") (emphasis added).
29. 42 USC § 601 et seq (2006). See Thiboutot, 44 US at 4 (holding that a plain language reading of "and laws" "undoubtedly embraces [claims under] the Social Security Act").
30. Gonzaga, 536 US at 278 (acknowledging that prior Court opinions might have created confusion in the lower courts).
31. 479 US 418 (1987).
32. See id at 419-20,424-25 ("Not only are the Brooke Amendment and its legislative history devoid of any express indication that exclusive enforcement authority was vested in [the federal agency], but there have also been both congressional and agency actions indicating that enforcement authority is not centralized and that private actions were anticipated.").
33. 496 US 498 (1990).
34. 42 USC § 1396a(a)(13)(a) (repealed 1997): A State plan for medical assistance must provide . . . for payment of the . . . services provided under the plan through the use of rates . . . which the State finds, and makes assurances satisfactory to the Secretary, are reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities in order to provide care and services in conformity with applicable State and Federal laws, regulations, and quality and safety standards and to assure that individuals eligible for medical assistance have reasonable access . . . to inpatient hospital services of adequate quality.
35. See Wilder, 496 US at 505 ("In order to determine whether the Boren Amendment is enforceable under § 1983, it is useful first to consider the history of the reimbursement provision.") (emphasis added), 509 ("We must therefore determine whether the Boren Amendment creates a 'federal right' that is enforceable under § 1983. Such an inquiry turns on whether 'the provision in question was intended to benefit the putative plaintiff.'") (emphasis added). Note that the Wilder inquiry focused on the intent of the provision, and not whether the provision was phrased in terms of the putative plaintiff.
36. Id at 508 n 9 (internal citations and quotations omitted; emphasis added).
37. Id at 524-27 (Rehnquist dissenting): [W]hile the Court's holding in Thiboutot rendered obsolete some of the case law pertaining to implied rights of action, a significant area of overlap remained. For relief to be had either under § 1983 or by implication . . . the language used by Congress must confer identifiable enforceable rights . . . . Yet the Court virtually ignores the relevant text of the Medicaid statute in this case.
38. 503 US 347 (1992).
39. See id at 356-58.
40. 520 US 329 (1997).
41. Id at 340-41, citing Wright, 479 US at 430, 431-32; Wilder, 496 US at 510-11; Pennhurst, 451 US at 17.
42. Blessing, 520 US at 332-33 (disagreeing with the Ninth Circuit that the "statutory scheme [could] be analyzed so generally").
43. 20 USC § 1232g et seq (2006).
44. See Gonzaga, 536 US at 275. Justices Rehnquist, O'Connor, Scalia, Thomas, and Kennedy composed the majority.
45. Id at 283 (rejecting the notion that "implied private right of action cases have no bearing on the standards for discerning whether a statute creates rights enforceable by § 1983").
46. Id at 283-84 (alterations and last emphasis in original; internal quotations omitted; first two emphases added).
47. 451 US 1 (1981).
48. Id at 18.
49. Id, quoting Philbrook v Glodgett, 421 US 707, 713 (1975).
50. Wilder, 496 US at 518 (emphasis added) (finding that this understanding makes it "implausible to assume" that Congress intended to deprive providers of a private right of action under § 1983).
51. Gonzaga, 536 US at 297 (Stevens dissenting) (emphasis in original).
52. Id at 286 (majority), quoting Will v Michigan Department of State Police, 491 US 58, 65 (1989) (internal quotation marks omitted; emphasis added).
53. Gonzaga, 536 US at 286 n 5 (internal citations omitted).
54. Pennhurst, 451 US at 17 (1981): [L]egislation enacted pursuant to the spending power is much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions. The legitimacy of Congress's power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the "contract." There can, of course, be no knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of it. Accordingly, if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously.
55. See generally, for example, Steve France, Hearing Loss: High Court is Rolling Back Implied Rights of Action, 89 ABA J 18 (Feb 2003) (noting that Chief Justice Rehnquist himself considered the decision one of the most influential of 2002).
56. Id (quoting New York City civil rights lawyer David Goldberg).
57. Id (quoting Michael Greve, director of the Federalism Project at the American Enterprise Institute).
58. See, for example, Visiting Nurse Association of North Shore, Inc v Bullen, 93 F3d 997, 1004 (1st Cir 1996) (holding that because the Boren Amendment and § 1396a(a)(30) contain nearly identical substantive requirements, Wilder supports the use of § 1983 by providers to enforce the subsection), overruled by Gonzaga, 536 US at 279-86, as recognized in Long Term Care Pharmacy, Inc v Ferguson, 362 F3d 50, 57 (1st Cir 2004) ("Gonzaga . . . compels us to reexamine Bullen."). See also Methodist Hospitals, Inc v Sullivan, 91 F3d 1026, 1029 (7th Cir 1996) (allowing providers to enforce the equal access provision using § 1983); Wood v Tompkins, 33 F3d 600, 608 (6th Cir 1994) (finding that § 1396n(c) et seq waiver requirements are more like the Boren Amendment in Wilder than the statute in Suter and therefore confer enforceable rights); Arkansas Medical Society, Inc v Reynolds, 6 F3d 519, 526 (8th Cir 1993) (holding that providers may use § 1983 to enforce the equal access provision); Miller v Whitburn, 10 F3d 1315, 1319-20 (7th Cir 1993) (stating that "early and periodic screening, diagnostic, and treatment services" (EPSDT) provisions confer enforceable rights on recipient under Wilder test).
59. 235 F3d 908 (5th Cir 2000).
60. See id at 928 ("[I]t is apparent that while recipients have an individual entitlement to equal access to medical care, any benefit to health care providers is indirect at best.").
61. See note 68 and accompanying text.
62. See Pennsylvania Pharmacists Association v Houstoun, 283 F3d 531 (3d Cir 2002) (en banc). The "arguable" contrary Third Circuit precedent was a footnote in a 1999 decision, stating: "The Department argues at least in part that Rite Aid and the [Pennsylvania Pharmacists Association] may not sue to enforce [certain] Medicaid regulations as section 30(A) does not support a private cause of action. The district court rejected this argument and we agree with this result." Pennsylvania Pharmacists, 283 F3d at 534 n 4 (alterations in original; internal quotation marks and citations omitted), quoting Rite Aid of Pennsylvania, Inc v Houstoun, 171 F3d 842, 850 n 7 (3d Cir 1999).
63. 283 F3d 531 (3d Cir 2002) (en banc).
64. Id at 535, citing Blessing, 520 US at 340; Wilder, 496 US at 509; Wright, 479 US at 430.
65. Pennsylvania Pharmacists, 283 F3d at 535-36 (emphasis in original).
66. Id at 536, quoting Cannon v University of Chicago, 441 US 677,694 n 13 (1979) (alteration in original).
67. For commentary on strict textualism, see, for example, William N. Eskridge, All About Words: Early Understandings of the "Judicial Power" in Statutory Interpretation, 1776-1806, 101 Colum L Rev 990, 1088 (2001) (associating "strict textualism" with Scalia's views of originalism and a complete rejection of legislative history);
68. Ellen P. Aprill, The Law of the Word: Dictionary Shopping in the Supreme Court, 30 Ariz St L J 275, 278-79 (1998).
69. See Sanchez v Johnson, 416 F3d 1051, 1062 (9th Cir 2005) (holding that neither providers nor recipients can sue under equal access provision); National Medical Care v Rullan, 2005 WL 2878094, *7 (D Puerto Rico) (declaring that providers cannot sue under comparability provision); Protestant Memorial Medical Center, Inc v Maram, 2005 WL 2464460, *4-5 (SD Ill) (dismissing provider's suit to enforce "provisions of the Medicaid Act, specifically § 1396 et seq" for failure to state a claim and rejecting provider's argument that "[Wilder] couches its language in terms of § 1396 generally"); Oklahoma Chapter of the American Academy of Pediatrics v Fogarty, 366 F Supp 2d 1050, 1102-11 (ND Okla 2005) (holding that providers cannot sue under equal access, reasonable promptness, or EPSDT provisions); In re NYAHSA Litigation, 318 F Supp 2d 30, 38-40 (NDNY 2004) (deciding that providers cannot sue under § 1396a(a)(13)(A)'s rate-setting "process" provision, equal access provision, or § 1396r nursing care "quality of life" provision); Clayworth v Bonta, 295 F Supp 2d 1110, 1121-24 (ED Cal 2003) (holding that providers cannot sue under equal access provision); Burlington United Methodist Family Services, Inc v Atkins, 227 F Supp 2d 593, 595-97 (SD W Va 2002) (same). See also Long Term Care Pharmacy Alliance v Ferguson, 362 F3d 50, 58-59 (1st Cir 2004): Prior to Gonzaga, whether subsection (30)(A) authorized private rights for providers was a close question; the circuits were split on the issue, and well reasoned opinions had been written on both sides. . .Whether Gonzaga is a tidal shift or merely a shift in emphasis, we are obligated to respect it, and it controls this case. Providers such as pharmacies do not have a private right of action under subsection (30)(A); if they think that state reimbursement is inadequate - and cannot persuade the Secretary to act - they must vote with their feet. A skeptic might note that providers "voting with their feet" - i.e., leaving state Medicaid programs - is precisely the problem, and not a step towards a solution. For the first post-Gonzaga opinion to hold that providers do have enforceable rights under the equal access provision, see Pediatric Specialty Care, Inc v Arkansas Department of Human Services, 443 F3d 1005, 1015-16 (8th Cir 2006).
70. See, for example, Pediatric Specialty Care, 443 F3d at 1015 (rejecting defendants' argument that Gonzaga "foreclose[d] private causes of action based on the Medicaid Act").
71. The post-Gonzaga interpretive differences in the lower courts were-like the Gonzaga opinion itself - largely anticipated by the Third Circuit in Pennsylvania Pharmacists. Although that case dealt with the right of providers to bring § 1983 suits under the equal access provision, the Pennsylvania Pharmacists dissent - joined by five Third Circuit judges - advocated for "pragmatic textualism" in interpreting whether Medicaid Act provisions grant § 1983-enforceable rights. According to the dissent, a doctrine under which only Medicaid beneficiaries can bring suit "lacks context [in] the real world of health care, which implicates the relationship between provider costs and the availability of services to Medicaid recipients." 283 F3d at 545 (Becker dissenting). As Chief Judge Becker explained, there is "a nexus between the interests of providers and the interests of recipients, which is recognized by the express terms of Section 30(A)." Id (emphasis added). 71 See Gonzaga, 536 US at 286 ("[W]here the text and structure of a statute provide no indication that Congress intends to create new individual rights, there is no basis for a private suit, whether under § 1983 or under an implied right of action.") (emphasis added).
72. 2004 WL 1878332 (ND Ill).
73. Id at *6. See also id at *6-7 (relying on a different section of Medicaid Act to "supplement" text of 30(A), examining the act's legislative history, and acknowledging that 30(A) is not phrased in "typical rights creating language" but explaining that such language would not fit in with the "structure" of statute).
74. On the other hand, critics might say that by "stray[ing] from . . . sound and established constitutional principles in order to reach what [they] consider[] just result[s] in [] particular case[s]," these courts "give[] meaning to the ancient warning that hard cases make bad law." Vlandis v Kline, 412 US 441, 459 (1973) (Burger dissenting). On that subject, see Sabree v Richman, 367 F3d 180, 183 (3d Cir 2004) ("That plaintiffs merit sympathy does not escape our notice, but neither does it govern our reasoning. Rather, Gonzaga University provides the dispassionate lens through which this matter must be viewed.").
75. 443 F3d 1005 (8th Cir 2006).
76. Id at 1014.
77. Id at 1015.
78. Id (emphasis added).
79. Id at 1015-16 (internal citation omitted).
80. Id (emphasis added).
81. Id at 1014.
82. See Dickson v Hood, 391 F3d 581, 603-07 (5th Cir 2004) ("[W]e conclude that the EPSDT treatment provisions of the Medicaid Act contains the 'rights-creating language critical to showing the requisite congressional intent to confer a new right.'") (internal citation omitted); OKAAP, 366 F Supp 2d at 1110-11 (same); Health Care For All, Inc v Romney, 2004 WL 3088654, *2-3 (D Mass) (same); Memisovski, 2004 WL 1878332 at *8-ll (same); Winn v Perdue, 218 FRD 277,293-95 (ND Ga 2003) (same).
83. See Bryson v Shumway, 308 F3d 79, 88-89 (1st Cir 2002) (applying the Blessing three-factor test); Mundell v Board of County Commissioners of Saguache County, 2005 WL 2124842, *3 (D Colo) (holding that § 1396a(a)(8) confers enforceable rights on recipients while §§ 1396a(a)(10) and (17) do not); OKAAP, 366 F Supp 2d at 1107-09 (upholding the provision); Reynolds v Giuliani, 2005 WL 342106, * 14-16 (SD NY) (same); Mendez v Brown, 311 F Supp 2d 134, 138-40 (D Mass 2004) (same); Romney, 2004 WL 3088654 at *2 (same); Rabin v Wilson-Coker, 266 F Supp 2d 332, 341 (D Conn 2003) (same); White v Martin, 2002 WL 32596017, *6 (WD Mo) (same).
84. See Watson v Weeks, 436 F3d 1152, 1159-62 (9th Cir 2006) (holding that § 1396a(a)(10) confers enforceable rights on recipients while § 1396a(a)(17) does not); Mendez, 311 F Supp 2d at 138-40 (stating that § 1396a(a)(10) confers an enforceable right).
85. See Deisenroth v Holsinger, 356 F Supp 2d 763, 767-68 (ED Ky 2005) ("[T]he Court concludes that the comparability of services provision . . . is privately enforceable under § 1983."); Romney, 2004 WL 3088654 at *2 (same); Masterman v Goodno, 2004 WL 51271, *9-10 (D Minn) (same); Ball v Biedess, 2004 WL 2566262, *5 (D Ariz) (same); Clayworth v Bonta, 295 F Supp 2d 1110, 1121-24 (ED Cal 2003) (same).
86. See Deisenroth, 356 F Supp 2d at 768 (upholding a § 1983 suit under §1396n(c)(2)(C), the compliance provision of § 1396(a)(23)); Masterman, 2004 WL 51271 at *10 (same); Ball, 2004 WL 2566262 at *5 (same).
87. See Sabree, 367 F3d at 182-83 (holding that the provision "unambiguously confer[s] rights vindicable under § 1983"); Deisenroth, 356 F Supp 2d at 766-67 (same).
88. See, for example, Romney, 2004 WL 3088654 at *2 (holding that recipients may not bring § 1983 suit to enforce equal access provision because, although other Circuits have decided otherwise, § 1396a(a)(30) "displays no intent to benefit any single class of individuals . . . [since] the statute 'has no rights creating language and identifies no discrete class of beneficiaries'"), quoting Long Term Care Pharmacy Alliance, 362 F3d at 57. See also Watson, 436 F3d at 1162-63 (barring recipients from suing to enforce the § 1396a(a)(17) "reasonable standards" provision); Sanchez, 416 F3d at 1062 (finding that neither providers nor recipients may sue to enforce the equal access provision); Mundell, 2005 WL 2124842 at *3 (holding that a recipient may not sue to enforce the § 1396a(a)(10) "availability" or the § 1396a(a)(17) "reasonable standards" provisions); Sanders v Kansas Department of Social and Rehabilitation Services, 317 F Supp 2d 1233, 1248-51 (D Kan 2004) (stating that recipient may not sue to enforce the § 1396a(a)(8) "reasonable promptness" or the § 1396a(a)(17) "reasonable standards" provisions); M.A.C. v Betit, 284 F Supp 2d 1298, 1304-08 (D Utah 2003) (holding that recipients may not sue to enforce the § 1396a(a)(8) "reasonable promptness" provision, the § 1396a(a)(23)(A) and § 1396n(c)(2)(C) freedom of choice provisions, or the more general "right to services" under the Medicaid Act).
89. Pub L 88-352, 78 Stat 241, codified at 28 USC § 1447, 42 USC §§ 1971, 1975a-d, 2000a et seq (2000). For an example of this correlation, see Sanchez, 416 F3d at 1058 (noting that the Gonzaga Court used Title VI of the Civil Rights Act of 1964 "[a]s [an] example[] of paradigmatic rights-creating language").
90. 42 USC § 2000a(a) (emphasis added).
91. 42 USC § 1971(a)(2)(B) (emphasis added).
92. See Sanchez, 416 F3d at 1062 ("Because we hold that § 30(A) fails the first prong of the Blessing test, we do not need to consider the second and third prongs.").
93. See id at 1062; Watson, 436 F3d at 1162.
94. See Westside Mothers v Olszewski, 454 F3d 532, 542-43 (6th Cir 2006) (concluding that subsection (30)(A) "has an aggregate focus rather than an individual focus" and its "broad and nonspecific" language is "ill-suited to judicial remedy"); Mandy R. v Owens, 464 F3d 1139, 1147-48 (10th Cir 2006) (finding that the equal access provision "does not create a federal right enforceable under § 1983" and noting the circuit split).
95. 416 F3d 1051 (9th Cir 2005).
96. Id at 1061 (internal citations omitted).
97. 436 F3d 1152 (9th Cir 2006).
98. Id at 1163.
99. Gonzaga, 536 US at 286 (emphases added).
100. Watson, 436 F3d at 1162 (internal citations omitted).
101. See 42 USC § 1396a(a)(10) ("A state plan for medical assistance must. . . provide - for making medical assistance available, including at least the care and services listed in paragraphs (1) through (5). . . of § 1396d(a) of this title.").
102. For example, if current Ninth Circuit law had prevailed in 1989, California could have decided not to cover off-label uses of azidothymidine ("AZT") through MediCal and neither providers nor beneficiaries would have any judicial recourse, despite the general agreement of the medical community that this was the only available treatment for HIV or AIDS. See Weaver v Reagen, 886 F2d 194, 198 (8th Cir 1989) (holding that § 1396a(a)(17) required Missouri's Medicaid program to cover such uses of AZT under similar facts).
103. See, for example, Hern v Beye, 57 F3d 906, 911 (10th Cir 1995): [T]his Circuit, as well as several other courts, has interpreted [the Medicaid Act] as imposing a general obligation on states to fund those mandatory coverage services that are medically necessary. . . . It may be that, pursuant to a generally applicable funding restriction or utilization control procedure, a participating state could deny coverage for a service deemed medically necessary in a particular case. But a state law that categorically denies coverage for a specific, medically necessary procedure . . . is not a reasonable standard . . . consistent with the objectives of the [Act]. (citations omitted). See also Weaver, 886 F2d at 198 (holding that a state plan cannot categorically deny coverage for off-label uses of AZT); Fred C. v Texas Health and Human Services Commission, 988 F Supp 1032, 1036 (WD Tex 1997), affd mem, 167 F3d 537 (5th Cir 1998) (declaring that the state may not deny treatment solely based upon age as there is no rational basis for distinguishing between those over and under twenty-one); McDaniel v Betit, 1996 WL 426816, *2 (D Utah) (same); Hunter v Chiles, 944 F Supp 914, 920 (SD Fla 1996) (same); Salgado v Kirschner, 878 P2d 659, 665 (Ariz 1994) (same).
104. Weaver, 886 F2d at 198, quoting Beat v Doe, 432 US 438, 444-45 (1977) (internal citation omitted) (emphasis added).
105. Gonzaga, 536 US at 286.
106. Id.
107. See, for example, Hillsborough County v Automated Medical Laboratories, Inc, 471 US 707, 719 (1985) ("[R]egulation of health and safety is primarily, and historically, a matter of local concern.").
108. See Harris v McRae, 448 US 297,316-17 (1980): Although Congress has opted to subsidize medically necessary services generally, but not certain medically necessary abortions, the fact remains that the Hyde Amendment leaves an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all. See also Rust v Sullivan, 500 US 173, 201-02 (1991) (upholding an HHS regulation making it impermissible for Title X programs to pay for abortion counseling and advocacy because, inter aha, "Congress' refusal to fund abortion counseling and advocacy leaves a pregnant woman with the same choices as if the Government had chosen not to fund family-planning services at all").
109. See, for example, South Dakota v Dole, 483 US 203, 206-07 (1987) (upholding the condition of raising the state drinking age). See also Fullilove v Klutznick, 448 US 448, 474 (1980) (upholding a set-aside program reserving federal funds for minority-owned businesses); Ivanhoe Irrigation District v McCracken, 357 US 275, 295 (1958) ("[B]eyond challenge is the power of the Federal Government to impose reasonable conditions on the use of federal funds."); Oklahoma v United States Civil Service Commission, 330 US 127, 144 (1947) ("The offer of benefits to a state by the United States dependent upon cooperation by the state with federal plans, assumedly for the general welfare, is not unusual."); Steward Machine Co v Davis, 301 US 548, 597-98 (1937) (holding that the Social Security Act constitutionally offers conditions to the states in return for state-created retirement systems); United States v Butler, 297 US 1, 66 (1936) (disallowing the condition that farmers reduce their output in exchange for federal funds). But see Pennhurst, 451 US at 17 n 13 ("Even the . . . respondents, like the court below, recognize the 'constitutional difficulties' with imposing affirmative obligations on the States pursuant to the spending power.").
110. Dole, 483 US at 207 (first alteration added, all other alterations in original), quoting Pennhurst, 451 US at 17.
111. See New York v United States, 505 US 144, 161 (1992) ("Congress may not simply commandee[r] the legislative processes of the states by directly compelling them to enact and enforce a federal regulatory program.") (alteration in original; quotation marks omitted).
112. See Pennhurst, 451 US at 17 ("Legislation enacted pursuant to the spending power is much in the nature of a contract; in return for federal funds, the States agree to comply with federally imposed conditions.").
113. See id: The legitimacy of Congress' power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the 'contract.' There can, of course, be no knowing acceptance if a state is unaware of the conditions or is unable to ascertain what is expected of it.
114. 156 Eng Rep 145 (Ex 1854) (limiting consequential damages for breach of contract to those damages reasonably foreseeable to the parties at the time of contracting and requiring disclosure, at the time of contracting, of unique circumstances in order to recover unique damages for breach).
115. See generally, for example, Hensin Tsao, Gary S. Rogers, and Arthur J. Sober, An Estimate of the Annual Direct Cost of Treating Cutaneous Melanoma, 38 Journal of the American Academy of Dermatology 669 (1998).
116. See also Joan Schwartz, Late-stage Melanoma Patients Have Most Expenses for Treatment, B.U. Bridge Research Briefs (May 15, 2003), online at http://www.bu.edu/phpbin/researchbriefs/display.php?id=88 (visited Apr 28, 2007): About 90 percent of the total annual direct cost for treating melanoma, a deadly form of skin cancer, is spent on those with advanced disease-less than 20 percent of all melanoma patients. . . . The staggering medical expense in treating these late-stage patients provides an incentive for better skin cancer surveillance and prevention programs. . . . [T]he annual direct cost of treating newly diagnosed melanoma in 1997 was estimated to be at least $560 million, and it may exceed $1 billion. . . . When discovered early, melanoma can often be treated effectively, but is more deadly when discovered at an advanced stage. . . . "Our study shows that early detection saves both lives and money." (quoting Dr. Gary Rogers).
117. It had long been believed that the cost of nonurgent emergency room care was as much as triple the cost of nonurgent, nonemergency care. Indeed, in a televised speech to a joint session of Congress and the nation in September 1993, President Clinton referred to emergency departments as "the most expensive place of all." Robert M. Williams, The Costs of Visits to Emergency Departments, 334 New Eng J Med 642, 642 (1996). As a 1996 article in the New England Journal of Medicine put it: It is widely believed that about half of all visits to emergency departments are for minor medical problems and that the cost of a nonurgent visit to an emergency department is triple the cost of a visit to a physician's office. Diverting nonurgent visits from emergency departments to private physicians' offices is viewed as a way to gain substantial savings. Id. Williams - and certain other recent empirical studies - suggest that there was less cost disparity between nonurgent emergency care and nonurgent, nonemergency care than was previously thought. See id. ("The potential savings from a diversion of nonurgent visits to private physicians' offices may. . . be much less than is widely believed."). However, these recent studies have been criticized by some medical professionals and policy analysts for, inter alia, failing to take into account the significant collateral costs of emergency care.
118. See, for example, Carolyn L. Baier, Letter to the Editor, Costs of Visits to Emergency Departments, 335 New Eng J Med 209, 209 (1996) (arguing that "[t]he lack of access in certain areas to any care other than that provided by the emergency department is an argument for improving access, not for providing non-urgent care in emergency departments, whatever the cost").
119. See Sidney D. Watson, Medicaid Physician Participation: Patients, Poverty, and Physician Self-interest, 21 Am J L & Med 191, 194-98 (1995) (reviewing empirical evidence), 192-93: America[] [has a] long tradition of dual-track medical care: one track for those with money and another for those without. Medicaid promised to end this dual class delivery system by providing poor people with health insurance they could use to purchase private medical care. However, this promise has never been fulfilled, and the dual system continues. Privately insured patients receive primary care in private
120. See id at 198 (noting that "[t]he [cost] problem is exacerbated by overcrowding and long waits at public facilities which cause patients to delay seeking treatment until their conditions become so serious that they require even more expensive treatment and more frequent hospitalization").
121. 42 USC § 1395dd (2006). EMTALA, established under the Consolidated Omnibus Budget Reconciliation Act of 1985, is often referred to as the "Anti-Dumping" statute. See generally, for example, Thomas A. Gionis, Carlos A. Camargo, Jr., and Anthony S. Zito, Jr., The Intentional Tort of Patient Dumping: A New State Cause of Action to Address the Shortcomings of the Federal Emergency Medical Treatment and Active Labor Act (EMTALA), 52 Am U L Rev 173 (2002) (detailing the anti-dumping provisions of both EMTALA and similar state statutes).
122. Watson describes the phenomenon as follows: [L]ow Medicaid physician reimbursement forces Medicaid enrollees to turn to public hospitals and public clinics, hospital emergency rooms, and outpatient departments for medical care. This phenomenon greatly increases the cost of the Medicaid program because providing primary care in hospital outpatient facilities and emergency rooms is more expensive than providing the same care in a physician's office. The problem is exacerbated by over-crowding and long waits at public facilities which cause patients to delay seeking treatment until their conditions become so serious that they require even more expensive treatment and more frequent hospitalization. Watson, Medicaid Physician Participation, 21 Am J L & Med at 198 (cited in note 117),
123. citing Physician Payment Review Commission, Report to Congress: Physician Payment Under Medicaid 23-24 (1991),
124. reprinted in 3 Medicare & Medicaid Guide (CCH) Special Rep No 661 (July 18, 1991).
125. See also Robert E. Hurley, Hoangmai H. Pham, and Gary Claxton. A Widening Rift in Access and Quality: Growing Evidence of Economic Disparities, Health Affairs Web Exclusive, online at http://content. healthaffairs.org/cgi/content/abstract/hlthaff.w5.566 (visited Apr 28, 2007): EMTALA obligates EDs [emergency departments] to evaluate and stabilize all patients who seek care. This open door is subject to exploitation, and the ED directors interviewed decried the extent to which patients and competing providers, including private physicians, rely on this policy to use EDs for care that should be available elsewhere. In some cases, this . . . reveals the frustration of community-based primary care providers who, knowing that they will be unable to find office-based specialty care for a Medicaid or uninsured patient, send such patients to the ED because the hospital has a call list of available specialists who will see patients in the ED. (emphasis added).
126. Overcrowding Crisis in our Nation's Emergency Departments: Is Our Safety Net Unraveling? 114 Pediatrics 878 (2004), online at http://pediatrics.aappublications.org/cgi/content/full/114/3/878 (visited Apr 28, 2007) (emphasis added) (characterizing EMTALA as "The Underfunded Federal Mandate for Universal Health Care").
127. Focusing on the "text and structure," Gonzaga, 536 US at 286 (emphasis added), of the Medicaid Act and on what "Congress intended," id, clearly focuses upon congressional intent. This intent-centered inquiry stands in stark contrast to a narrow determination of whether each provision, in textual isolation, is "framed in terms of the persons benefited," Watson, 416 F3d at 1163, which centers upon notice to the states.
128. Dole, 483 US at 211, quoting Steward Machine Co, 301 US at 590.
129. Dole, 483 US at 211 (emphasis added).
130. See id at 211-12 (stating that "[h]ere Congress has offered relatively mild encouragement to the States to enact higher minimum drinking ages than they would otherwise choose," through which the states retained their lawmaking prerogative).
131. 483 US 203 (1987).
132. See id at 211-12 (emphasis added).
133. See text accompanying notes 19-23. 129 See Watson, 436 F3d at 1159, citing Gonzaga, 536 US at 284.
134. Sabree v Richman, 367 F3d 180, 183 (3d Cir 2004) (describing Gonzaga).