Making medical assistance available: Enforcing the Medicaid Act's availability provision through § 1983 litigation

Columbia Law Review

Volumn 109, Issue 6, 2009, Pages 1440-1481

  Rao, Devi M ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 77952766504     PISSN: 00101958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (489)

1. 42 U. S. C. §§ 1396-1396v (2006). Medicaid's general introductory statement provides that the Act is " [f] or the purpose of enabling each State... to furnish... medical assistance on behalf of families... [and] individuals, whose income and resources are insufficient to meet the costs of necessary services."
2. Id. § 1396.
3. Andy Schneider et al., The Kaiser Comm'n on Medicaid and the Uninsured, The Medicaid Resource Book, at i (2002), available at http://www.kff.org/ medicaid/loader.cfm?url=/commonspot/security/getfile.cfm&PageID=14266 (on file with the Columbia Law Review).
4. For a history of Medicaid and its amendments, see Omar N. Ahmad, Medicaid Eligibility Rules for the Elderly Long-Term Care Applicant: History and Developments, 1964-1998, 20 J. Legal Med. 251, 252-65 (1999) (discussing initial passage and amendments regarding spousal impoverishment);
5. Sara Rosenbaum, Medicaid at Forty: Revisiting Structure and Meaning in a Post-Deficit Reduction Act Era, 9 J. Health Care L. & Pol'y 5, 8-24 (2006) (discussing Medicaid's legislative roots, basic structure, and history).
6. Sabree ex rel. Sabree v. Richman, 367 F.3d 180, 182 (3d Cir. 2004).
7. Jane Perkins & Sarah Somers, Nat'l Health Law Program, An Advocate's Guide to the Medicaid Program § 1.1 (2001).
8. Ctr. for Medicaid & State Operations, Dep't of Health and Human Servs., Medicaid At-a-Glance 2005: A Medicaid Information Source 1 (2005), available at http://www.cms. hhs.gov/MedicaidGenInfo/downloads/ MedicaidAtAGlance2005.pdf (on file with the Columbia Law Review).
9. Id.
10. 42 U. S. C. § 1396a (a) (10) (A) (i) (2006) (emphasis added).
11. Id. § 1396d (a).
12. This problem may be even more pressing because of the current recession. Faced with budget deficits, many states are "slicing into their social safety nets." Erik Eckholm, States Slashing Social Programs for Vulnerable, N. Y. Times, Apr. 12, 2009, at A1.
13. For example, "California has ended dental coverage for adults on Medicaid, all but guaranteeing future medical problems."
14. Id.
15. Sabree ex rel. Sabree v. Richman, 367 F.3d 180, 182 (3d Cir. 2004).
16. Watson v. Weeks, 436 F.3d 1152, 1154 (9th Cir. 2006).
17. S. D. ex rel. Dickson v. Hood, 391 F.3d 581, 584 (5th Cir. 2004).
18. Westside Mothers v. Olszewski, 454 F.3d 532, 535 (6th Cir. 2006). The Medicaid Act's EPSDT provisions are children-specific and are among the enumerated services that a state program must provide.
19. See Frederick H. Cohen, An Unfulfilled Promise of the Medicaid Act: Enforcing Medicaid Recipients' Right to Health Care, 17 Loy. Consumer L. Rev. 375, 381-83, 391-93 (2005) (describing EPSDT provisions and their enforceability through § 1983).
20. Frew ex rel. Frew v. Hawkins, 540 U. S. 431, 434 (2004).
21. This case was brought, not under the availability provision, but under 42 U. S. C. § 1396a (a) (43) (B) - (C), which requires states to "provid[e] or arrang[e] for the provision of... screening services in all cases where they are requested" and arrange for "corrective treatment."
22. A Texas district court had issued a consent decree, and in Hawkins the Court held that enforcing the consent decree does not violate the Eleventh Amendment. Hawkins, 540 U. S. at 439.
23. 536 U. S. 273, 283-86 (2002).
24. See Andrew R. Gardella, Note, The Equal Access Illusion: A Growing Majority of Federal Courts Erroneously Foreclose Private Enforcement of § 1396a (a) (30) of the Medicaid Act Using 42 U. S. C. § 1983, 38
25. U. Mem. L. Rev. 697, 706 (2008) (noting majority of circuits that examined § 1396a (a) (30) found it unenforceable under Gonzaga analysis).
26. The "equal access" provision of the Medicaid Act states that " [a] State plan for medical assistance must... provide such methods and procedures... so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area."
27. U. S. C. § 1396a (a) (30) (A) (2006).
28. The Eighth and Ninth Circuits have held § 1396a (a) (l7) unenforceable through § 1983.
29. See Lankford v. Sherman, 451 F.3d 496, 509 (8th Cir. 2006) ("As the statute sets forth only broad, general goals,... plaintiffs do not have a private right of action to enforce Medicaid's reasonable-standards provision under section 1983.");
30. Watson v. Weeks, 436 F.3d 1152, 1155 (9th Cir. 2006) ("We... hold that section 1396a (a) (l7) does not create... an individual right [under § 1983].").
31. Section 1396a (a) (17) provides that a state Medicaid plan must "include reasonable standards... for determining eligibility for and the extent of medical assistance under the plan. " § 1396a (a) (17).
32. The availability provision requires that states make "medical assistance available, including at least the care and services listed in paragraphs (1) through (5), (17) and (21) of section 1396d (a) [of the Act]." § 1396a (a) (10). Among the services included in the referenced subsection are inpatient and outpatient hospital services, laboratory and X-ray services, nursing facility services, EPSDT services, and physician or nursing care. § 1396d (a).
33. § 1396u-7.
34. Gonzaga, 536 U. S. at 286.
35. See Nicole Huberfeld, Bizarre Love Triangle: The Spending Clause, Section 1983, and Medicaid Entitlements, 42 U. C. Davis L. Rev. 413, 418 (2008) (arguing DRA "change [s] Medicaid from a program of promised care and benefits into one of no enforceable promises");
36. Jon Donenberg, Note, Medicaid and Beneficiary Enforcement: Maintaining State Compliance with Federal Availability Requirements, 117 Yale L. J. 1498, 1523 (2008) ("The fact that states under the DRA have the option of fundamentally restructuring Medicaid's basic benefit packages severely undercuts any claim to enforceability through § 1983.").
37. § 1396a (a) (10).
38. A number of commentators have noted that bringing a preemption suit based on the Supremacy Clause is a viable alternative to § 1983 suits. See, e.g., Lauren K. Saunders, Preemption as an Alternative to Section 1983, Clearinghouse Rev. J. Poverty L. & Pol'y, Mar.-Apr. 2005, at 705 (discussing how preemption cause of action can be used by public interest advocates);
39. David Sloss, Constitutional Remedies for Statutory Violations, 89 Iowa L. Rev. 355, 361 (2004) (noting possibility of preemption cause of action "assumes added significance in light of the Court's recent decision in Gonzaga University v. Doe");
40. Harper Jean Tobin & Rochelle Bobroff, The Continuing Viability of Medicaid Rights After the Deficit Reduction Act of 2005, 118 Yale L. J. Pocket Part 147, 149-51 (2009), at http://the pocketpart.org/2009/02/09/tobinbobroff. html (on file with the Columbia Law Review) (arguing preemption as best alternative to § 1983 in availability provision context). No federal courts have addressed whether the availability provision can preempt a state Medicaid plan. This question, while interesting, is outside the scope of this Note.
41. See Liam J. Montgomery, Note, The Unrealized Promise of Section 1983 Methodof-Execution Challenges, 94 Va. L. Rev. 1987, 1988 (2008) (describing § 1983 as "the central cause of action in federal civil rights litigation").
42. § 1983 (emphasis added).
43. 536 U. S. 273 (2002).
44. Ch. 22, 17 Stat. 13. Congress passed the Act using its Section 5 enforcement powers of the Fourteenth Amendment. Monroe v. Pape, 365 U. S. 167, 171 (1961)
45. overruled in part by Monell v. Dep't of Soc. Servs., 436 U. S. 658 (1978).
46. Sheldon H. Nahmod et al., Constitutional Torts 3 (LexisNexis 2d ed. 2004).
47. Monroe, 365 U. S. at 174-75.
48. Id. at 174.
49. Nahmod, supra note 29, at 3 (citing Carey v. Piphus, 435 U. S. 247 (1978)).
50. See id. at 4 (noting that restrictive application of state action doctrine, narrow reading of Fourteenth Amendment's Privileges and Immunities Clause, and Supreme Court's initial refusal to completely incorporate the Bill of Rights all contributed to § 1983's dormancy).
51. 365 U. S. 167, 167 (1961);
52. see also Note, Limiting the Section 1983 Action in the Wake of Monroe v. Pape, 82 Harv. L. Rev. 1486, 1486-87 (1969) (noting that incorporation of Bill of Rights through Fourteenth Amendment, Monroe, and Supreme Court decisions holding exhaustion of state remedies is not necessary to maintain § 1983 action all "significantly broadened the applicability of section 1983").
53. Monroe, 365 U. S. at 180. To understand the scale of this decision, consider that in 1961, the year Monroe was decided, there were approximately 150 nonprisoner § 1983 cases filed. By 1986, there were approximately 10, 000.
54. Louise Weinberg, The Monroe Mystery Solved: Beyond the "Unhappy History" Theory of Civil Rights Litigation, 1991 BYU L. Rev. 737, 738 n. 9;
55. see also Richard H. Fallon, Jr. et al., Hart and Wechsler's The Federal Courts and The Federal System 955 (6th ed. 2009) (listing over 20, 000 civil rights suits by nonprisoners, including cases not filed under § 1983).
56. Monroe, 365 U. S. at 169-71. The group of police broke into petitioners' home without an arrest warrant in the early morning and forced them to stand naked in the living room while they ransacked the house. They then took Mr. Monroe to the police station and detained him for ten hours without allowing him to call his family or attorney. Afterwards, they released Monroe without charging him with any crime.
57. Id. at 169.
58. Id. at 171-72.
59. The Court here followed its decisions in prior cases having to do with the criminal counterparts to § 1983. In United States v. Classic, 313 U. S. 299, 326 (1941), then-Associate Justice Stone noted that "[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken under color of state law."
60. This meaning of "under color of state law" was reaffirmed in Screws v. United States, 325 U. S. 91, 108-13 (1945), where the Court noted that reading "under color of state law" more restrictively would "emasculate an Act of Congress designed to secure individuals their constitutional rights by finely spun distinctions concerning the precise scope of the authority of officers of the law";
61. see also David Achtenberg, A "Milder Measure of Villainy": The Unknown History of 42 U. S. C. § 1983
62. and the Meaning of "Under Color of Law, 1999 Utah L. Rev. 1, 5 (detailing legislative history of § 1983 that "should dispel the remarkably persistent myth that the Forty-second Congress never intended the provision to cover constitutional wrongs unless those wrongs were actually authorized by state law").
63. See Slaughter-House Cases, 83 U. S. 36, 76-77 (1872) (providing examples of "the very few express limitations which the Federal Constitution imposed upon the States").
64. Monroe, 365 U. S. at 170. Prior cases had construed Reconstruction-era laws as covering only "federal" rights.
65. See, e.g., United States v. Williams, 341 U. S. 70, 73 (1951) (holding statute criminalizing any "conspiracy against rights" covered only conduct that interfered with rights "arising from the substantive powers of the Federal Government"). At the time, the Court's understanding of state citizenship was expansive, as opposed to its restrictive view of federal citizenship under the Slaughter-House Cases, 83 U. S. at 76 (noting privileges and immunities of state citizenship "are fundamental; which belong of right to the citizens of all free governments, and which have at all times been enjoyed by citizens of the several States which compose this union"
66. (quoting Corfield v. Coryell, 6 F. Cas. 546, 551 (C. C. E. D. Pa. 1823) (No. 3230))).
67. Section 1983 is limited to the deprivations of rights by "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or the District of Columbia, subjects, or causes to be subjected... [any person] to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." 42 U. S. C. § 1983 (2006) (emphasis added). Under certain conditions, private parties, as well as state actors, can be sued under § 1983. However, examining the "under color of state law" test is outside the scope of this Note.
68. Civil Rights Act of 1871, ch. 22, 17 Stat. 13.
69. 1 Rev. Stat. 348 (1875);
70. see also Lisa E. Key, Private Enforcement of Federal Funding Conditions Under § 1983: The Supreme Court's Failure to Adhere to the Doctrine of Separation of Powers, 29 U. C. Davis L. Rev. 283, 304 (1996) (detailing early history of § 1983).
71. Key, supra note 42, at 304-05. There are three main theories regarding this change. The "Consistency Theory" and the "No Modification Theory" both assert that the revisers intended "and laws" to mean "and laws providing for equal rights," limiting the use of § 1983 to violations of federal laws providing for equal rights. In contrast, the "Plain Meaning Theory" does not advocate such a restriction of § 1983, instead suggesting that "and laws" should be given its literal meaning and apply to all federal statutes. For a more thorough discussion of these theories
72. see id. at 306-13.
73. The Court has noted that "one cannot go into court and claim a 'violation of § 1983'-for § 1983 by itself does not protect anyone against anything." Chapman v. Houston Welfare Rights Org., 441 U. S. 600, 617 (1979).
74. See Nahmod et al., supra note 29, at 101 ("The availability of a cause of action only gets the plaintiff into the courthouse. In order to prevail, the plaintiff must prove a substantive constitutional (or, in certain circumstances, a statutory) violation. ").
75. The Court did briefly address the "and laws" issue in dicta in Holt v. Indiana Manufacturing Co., 176 U. S. 68 (1900). While deciding whether a circuit court had jurisdiction to hear the case, the Court drew an analogy between the statute at issue and § 1983, noting that "it is sufficient to say that [both statutes] refer to civil rights only, and are inapplicable here."
76. Id. at 72.
77. Though the dissent in Maine v. Thiboutot, 448 U. S. 1, 27-28 (1980) (Powell, J., dissenting), cites to Holt, the Court did not adopt Holt's attempt to cabin the enforceability of statutory rights under § 1983.
78. 448 U. S. at 4.
79. Id.
80. Id. at 7.
81. Id. at 7-8.
82. See 451 U. S. 1, 18 (1981) ("There is virtually no support for the lower court's conclusion that Congress created rights and obligations pursuant to its power to enforce the Fourteenth Amendment.").
83. Id. (emphasis added).
84. Id. at 19.
85. 42 U. S. C. § 1437a (2006).
86. 479 U. S. 418, 432 (1987).
87. Id. at 431-32.
88. 496 U. S. 498, 509 (1990). Like in Thiboutot, Justice Brennan wrote the majority opinion.
89. See id. at 501. Chief Justice Rehnquist signed on to the dissent in Thiboutot; here he wrote the dissenting opinion.
90. See id. at 524 (Rehnquist, C. J., dissenting).
91. Id. at 501 (majority opinion).
92. 42 U. S. C. § 1396a (a) (13) (A) (1994).
93. Wilder, 496 U. S. at 509.
94. Id.
95. Id.
96. Id. (citations omitted) (internal quotation marks omitted).
97. Id. at 512.
98. 503 U. S. 347 (1992). By this time, Justice Brennan had retired and Chief Justice Rehnquist wrote for a 7-2 majority.
99. See id. at 348.
100. 42 U. S. C. §§ 621-628, 670-679a (2006).
101. Suter, 503 U. S. at 363.
102. Id. at 350-51.
103. §671 (a) (15) (emphasis added).
104. Suter, 503 U. S. at 363.
105. § 1320a-2. The term "Suter fix" first appears in the scholarship in 2002, and in the courts in 2006.
106. See Eric E. Thompson, The Adoption and Safe Families Act: A New Private Right of Action for Children in Foster Care Pursuant to Section 1983, 6 U. C. Davis J. Juv. L. & Pol'y 123, 127 (2002) (using term as section heading in article);
107. see also Watson v. Weeks, 436 F.3d 1152, 1158 (9th Cir. 2006) ("Congress responded to [Suter]
108. by enacting the 'Suter fix,' 42 U. S. C. § 1320a-2, which blocks any Medicaid Act provision from being deemed unenforceable by an individual merely because the provision contains state plan requirements.").
109. See Sasha Samberg-Champion, Note, How to Read Gonzaga: Laying the Seeds of a Coherent Section 1983 Jurisprudence, 103 Colum. L. Rev. 1838, 1850-51 (2003) (noting Suter was first repudiated by lower courts and then by Congress).
110. § 1320a-2.
111. 520 U. S. 329 (1997).
112. Id. at 332 (citing §§ 651-669b). Respondents complained that they had applied for child support services, but Arizona's child support agency failed to take adequate steps to obtain payments from their children's fathers.
113. Id. at 337.
114. § 609 (a) (8). Though the program is now referred to as TANF, at the time of Blessing it was still known as Aid to Families with Dependent Children (AFDC).
115. Blessing, 520 U. S. at 332-33.
116. The Blessing Court articulated the test in a different order than seen in Wilder. Subsequently, courts have used the Blessing ordering of the prongs. For consistency's sake, this Note uses the Blessing ordering as well. In addition, for clarity, this Note refers to this test as the "Blessing test."
117. Blessing, 520 U. S. at 340-41 (citations omitted) (internal quotation marks omitted). The Court noted that even if all three prongs of the test are met and a plaintiff can show that a federal statute creates an individual right, this merely establishes a rebuttable presumption of enforceability through § 1983, and if Congress has "specifically foreclosed a remedy under § 1983," the suit must be dismissed.
118. Id. at 341
119. (quoting Smith v. Robinson, 468 U. S. 992, 1005 n. 9 (1984)). Congress may do so explicitly in the statute, or implicitly "by creating a comprehensive enforcement scheme that is incompatible with individual enforcement under § 1983."
120. Id. (citing Livadas v. Bradshaw, 512 U. S. 107, 133 (1994)). It is unclear in precisely what situations an enforcement mechanism will supplant § 1983 enforcement.
121. See, e.g., Fitzgerald v. Barnstable Sch. Comm., 129 S. Ct. 788, 795-96 (2009) (holding because Title IX does not contain express private remedy, neither administrative procedure resulting in withdrawal of federal funding nor implied right of action under Title IX precludes suit under § 1983);
122. City of Rancho Palos Verdes v. Abrams, 544 U. S. 113, 122 (2005) ("The ordinary inference [is] that the remedy provided in the statute is exclusive....");
123. Middlesex County Sewerage Auth. v. Nat'l Sea Clammers Ass'n, 453 U. S. 1, 13, 20 (1981) (finding congressional intent to displace § 1983 remedies through "elaborate" and "comprehensive enforcement mechanism[s]").
124. The Supreme Court has explicitly rejected the argument that "Congress has foreclosed enforcement of the Medicaid Act under § 1983." Wilder v. Va. Hosp. Ass'n, 496 U. S. 498, 520 (1990).
125. Blessing 520 U. S. at 344-45.
126. Id.
127. Id. In his concurring opinion, Justice Scalia raised the possibility that § 1983 never "authorizes the beneficiaries of a federal-state funding and spending agreement-such as Title IV-D-to bring suit." Id. at 349 (Scalia, J., concurring). He noted that such federal-state funding agreements are "'in the nature of a contract, '" and likened the respondents in the case to third party beneficiaries, "stranger [s] to the contract" with no right to sue under it. Id.
128. (quoting Pennhurst State Sch. & Hosp. v. Halderman, 451 U. S. 1, 17 (1981)). Justice Scalia continues to assert this argument.
129. See Pharm. Research & Mfrs. v. Walsh, 538 U. S. 644, 675 (2003) (Scalia, J., concurring) ("I would reject petitioner's statutory claim on the ground that the remedy for the State's failure to comply with the obligations it has agreed to undertake under the Medicaid Act... is set forth in the Act itself: termination of funding by the Secretary of the Department of Health and Human Services.");
130. Barnes v. Gorman, 536 U. S. 181, 186-87 (2002) (Scalia, J.) (discussing scope of contract analogy);
131. cf. Walsh, 538 U. S.at 683 (Thomas, J., concurring) ("This contract analogy raises serious questions as to whether third parties may sue to enforce Spending Clause legislation....").
132. 536 U. S. 273 (2002). Most commentators agree that Gonzaga drastically changed the landscape of § 1983 enforcement case law.
133. See, e.g., Brian J. Dunne, Enforcement of the Medicaid Act Under 42 U. S. C. § 1983 After Gonzaga University v. Doe. The "Dispassionate Lens" Examined, 74 U. Chi. L. Rev. 991, 999 (2007) (noting Gonzaga "marked [a] departure from the more broad-based inquiry into legislative intent demonstrated in Wilder and other Court precedent");
134. Bradford C. Mank, Suing Under § 1983: The Future After Gonzaga University v. Doe, 39 Hous. L. Rev. 1417, 1419-20 (2003) [hereinafter Mank, Suing Under § 1983] ("While it does not purportedly change the prevailing three-part enforcement test for § 1983, the Gonzaga decision places a heavy and unnecessary burden of proof on plaintiffs...." (footnote omitted)); Donenberg, supra note 22, at 1520 (noting commentators believe Gonzaga "indicates significant hostility toward arguments that Spending Clause legislation confers enforceable rights under § 1983");
135. Samberg-Champion, supra note 72, at 1886 ("Gonzaga, if followed to some of its logical (if unstated) conclusions, could radically reshape the legal system.").
136. For an example of Gonzaga's leading the courts to find federal statutes unenforceable, see supra notes 17-18 and accompanying text.
137. The Gonzaga Court sought to refine and synthesize its prior case law, noting that "our opinions in this area may not be models of clarity." Gonzaga, 536 U. S. at 278. However, because the opinion did not seem to follow the three-part Blessing test, Gonzaga has created confusion among courts as to whether the decision merely clarified the Blessing test or supplanted it. Some lower courts think Gonzaga speaks only to the first prong of the Blessing test, and others now substitute Gonzaga for Blessing.
138. For examples of the former approach, see, e.g., Ball v. Rodgers, 492 F.3d 1094, 1104-06 (9th Cir. 2007);
139. Mandy R. ex rel. Mr. & Mrs. R. v. Owens, 464 F.3d 1139, 1146-48 (10th Cir. 2006);
140. Westside Mothers v. Olszewski (Westside Mothers II), 454 F.3d 532, 541-42 (6th Cir. 2006);
141. Lankford v. Sherman, 451 F.3d 496, 508-09 (8th Cir. 2006);
142. Harris v. Olszewski, 442 F.3d 456, 461, 463 (6th Cir. 2006);
143. Watson v. Weeks, 436 F.3d 1152, 1160 (9th Cir. 2006);
144. Sanchez v. Johnson, 416 F.3d 1051, 1056-57 (9th Cir. 2005);
145. S. D. ex rel. Dickson v. Hood, 391 F.3d 581, 602-04 (5th Cir. 2004);
146. Sabree ex rel. Sabree v. Richman, 367 F.3d 180, 183, 186-87 (3d Cir. 2004).
147. For examples of the latter approach, see, e.g., Equal Access for El Paso, Inc. v. Hawkins, 509 F.3d 697, 702-04 (5th Cir. 2007);
148. Bertrand ex rel. Bertrand v. Maram, 495 F.3d 452, 456-57 (7th Cir. 2007);
149. Rio Grande Cmty. Health Ctr., Inc. v. Rullan, 397 F.3d 56, 73 n. 10 (1st Cir. 2005);
150. Rabin v. Wilson-Coker, 362 F.3d 190, 201-02 (2d Cir. 2004);
151. Long Term Care Pharmacy Alliance v. Ferguson, 362 F.3d 50, 57 (1st Cir. 2004);
152. Bruggeman ex rel. Bruggeman v. Blagojevich, 324 F.3d 906, 911 (7th Cir. 2003).
153. For discussion in the literature about this confusion, see Deborah N. Archer & Kele S. Williams, Making America "the Land of Second Chances": Restoring Socioeconomic Rights for Ex-Offenders, 30 N. Y. U. Rev. L. & Soc. Change 527, 557 (2006) ("Interpretation of Gonzaga has created widespread disagreement among the lower federal courts.");
154. Huberfeld, supra note 22, at 442 (" Gonzaga's legacy is a hodgepodge of lower court decisions.");
155. Samberg-Champion, supra note 72, at 1839 ("[T]he decision is a murky one and already has led to widespread disagreement in the lower federal courts.").
156. Gonzaga, 536 U. S. at 283. The Court noted that "it is rights, not the broader or vaguer 'benefits' or 'interests,' that may be enforced under the authority of that section. " Id.
157. Id. at 280 (citing and quoting Pennhurst State Sch. & Hosp. v. Halderman, 451 U. S. 1, 17, 28 & n. 21 (1981)). This "clear statement" requirement is a result of federalism concerns underlying congressional Spending Clause enactments.
158. For a discussion of considerations that should inform judicial decisionmaking regarding Medicaid enforceability-including federalism, the cost of medical treatment, and public health- see Dunne, supra note 83, at 1012-21.
159. Gonzaga, 536 U. S. at 284 (emphasis added) (quoting Cannon v. Univ. of Chicago, 441 U. S. 677, 692 n. 13 (1979)). Gonzaga incorporated the Court's implied right of action cases-by which a court will infer a remedy into a statute that is silent on the subject-into its § 1983 inquiry.
160. See Richard H. Fallon, Jr. et al., Hart and Wechsler's The Federal Courts and The Federal System 787 (5th ed. 2003) (noting Gonzaga "narrowed the gap between implied right of action and § 1983 decisions").
161. Dissenting in Gonzaga, Justice Stevens argued that the majority's merging of the implied right of action cases into the § 1983 inquiry "is inappropriate" because the former do not distinguish between rights and remedies. Gonzaga, 536 U. S. at 301 (Stevens, J., dissenting). "Moreover, by circularly defining a right actionable under § 1983 as, in essence, 'a right which Congress intended to make enforceable,' the Court has eroded-if not eviscerated-the long-established principle of presumptive enforceability of rights under § 1983."
162. Id. at 302. Up until this point, these two lines of cases had been distinct and parallel routes by which a plaintiff could find rights enforceable in federal court. The Gonzaga Court stated that henceforth, implied right of action cases "should guide the determination of whether a statute confers rights enforceable under § 1983."
163. Id. at 283 (majority opinion). Though the two lines of cases represent different inquiries, they "overlap in one meaningful respect-in either case we must first determine whether Congress intended to create a federal right." Id. A full importation of the implied right of action line of cases into § 1983 jurisprudence may effectively switch the presumption away from enforceable rights. In Gonzaga's § 1983 analysis, the Court explained that a plaintiff need only point to a right that Congress intended to create, but does not need to show that Congress intended to provide a remedy.
164. See id. at 284 ("Once a plaintiff demonstrates that a statute confers an individual right, the right is presumptively enforceable by § 1983."). Section 1983 itself provides the remedy.
165. See 42 U. S. C. § 1983 (2006) (providing those who violate rights "shall be liable");
166. see also Gonzaga, 536 U. S. at 285 ("[Section 1983] merely provides a mechanism for enforcing individual rights... 'secured by the Constitution and laws' of the United States.");
167. Save Our Valley v. Sound Transit, 335 F.3d 932, 952 (9th Cir. 2003) (Berzon, J., dissenting) ("Section 1983... undisputably does create a right of action. Indeed, that is all it does....");
168. Erwin Chemerinsky, Federal Jurisdiction 570 (2007) ("Section 1983 expressly creates a remedy in its authorization for both money damages and injunctive relief").
169. In contrast, in Alexander v. Sandoval, 532 U. S. 275, 286 (2001), decided just a year before Gonzaga, the Court stated that in the implied right of action inquiry "[t] he judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy." The Court in Sandoval focused its implied right of action analysis on whether Congress intended private remedies to enforce the rights created by the regulation.
170. Id. at 291. Thus, if lower courts import wholesale Sandoval's analysis into the § 1983 case law, they will require a § 1983 plaintiff to prove Congress intended to create both a right and a remedy, thus undermining the significance of § 1983.
171. Gonzaga, 536 U. S. at 286 (emphasis added).
172. 20 U. S. C. § 1232g (2006).
173. Gonzaga, 536 U. S. at 290.
174. §1232g (b) (1).
175. Id. § 1234c (a) (emphasis added).
176. Gonzaga, 536 U. S. at 287
177. (quoting Alexander v. Sandoval, 532 U. S. 275, 288-89 (2001)).
178. 42 U. S. C. §2000d (2006).
179. 20 U. S. C. § 1681.
180. Gonzaga, 536 U. S. at 284. The Supreme Court recently held that Title IX's implied right of action does not preempt plaintiffs from bringing constitutional claims under § 1983.
181. See Fitzgerald v. Barnstable Sch. Coram, 129 S. Ct. 788, 796-97 (2009) ("[W]e hold that § 1983 suits based on the Equal Protection Clause remain available to plaintiffs alleging unconstitutional gender discrimination in schools."). For a discussion of Gonzaga's importation of the implied right of action jurisprudence into the § 1983 enforceability case law, see supra note 87.
182. 42 U. S. C. § 2000d;
183. U. S. C. § 1681.
184. Gonzaga, 536 U. S. at 287
185. (citing 20 U. S. C. § 1232g (b) (1) (2000)).
186. Id. (quoting Alexander v. Sandoval, 532 U. S. 275, 289 (2001) (internal quotation marks omitted)).
187. Id. at 288
188. (citing Blessing v. Freestone, 520 U. S. 329, 343 (1997)). For a discussion of Blessing's holding, see supra text accompanying note 82.
189. Gonzaga, 536 U. S. at 290.
190. For a sample of commentators' discussion of the implications of Gonzaga, see supra notes 83-84.
191. See Sabree ex rel. Sabree v. Richman, 367 F.3d 180, 190 (2004) (noting § 1983 enforceability inquiry is "one of those instances in which our inquiry does not end with the plain language of the statute");
192. Donenberg, supra note 22, at 1523-26 (arguing DRA's "serious structural modifications of Medicaid" override rights-creating language of availability provision).
193. Brian J. Sutherland, Killing Jim Crow and the Undead Nondelegation Doctrine with Privately Enforceable Federal Regulations, 29 Seattle U. L. Rev. 917, 922 n. 30 (2006).
194. Justice Blackmun noted that § 1983 stands for "the commitment of our society to be governed by law and to protect the rights of those without power against oppression at the hands of the powerful." Harry A. Blackmun, Section 1983 and Federal Protection of Individual Rights-Will the Statute Remain Alive or Fade Away?, 60 N. Y. U. L. Rev. 1, 28 (1985).
195. See Samberg-Champion, supra note 72, at 1871-72 (noting one interpretation, "seen by some as the logical outgrowth of Gonzaga, effectively destroys Section 1983 as an independent remedy for statutory violations" (footnote omitted));
196. cf. Mank, Suing Under § 1983, supra note 83, at 1480 ("The Gonzaga decision will significantly harm the intended beneficiaries of federal grant-in-aid programs....").
197. See infra note 147 and accompanying text.
198. See, e.g., Newark Parents Ass'n v. Newark Pub. Sch., 547 F.3d 199, 214 (3d Cir. 2008) ("Congress did not intend to give individuals a right to enforce the notice and supplemental education services provisions of the [No Child Left Behind] Act.").
199. See, e.g., Johnson v. City of Detroit, 446 F.3d 614, 623 (6th Cir. 2006) (finding no enforceable right under pertinent sections of Lead Based Paint Poisoning Prevention Act);
200. Caswell v. City of Detroit Hous. Comm'n, 418 F.3d 615, 620 (6th Cir. 2005) (holding recipient did not have viable § 1983 claim under Section 8 of United States Housing Act for defendants' conduct in terminating housing subsidies after landlord initiated eviction proceedings);
201. Price v. City of Stockton, 390 F.3d 1105, 1114 (9th Cir. 2004) (finding some provisions of Housing and Community Development Act create rights enforceable under § 1983, but others do not).
202. But see Johnson v. Hous. Auth., 442 F.3d 356, 360, 367 (5th Cir. 2006) (holding Section 8 of United States Housing Act created rights enforceable
203. See, e.g., Hughlett v. Romer-Sensky, 497 F.3d 557, 563-64 (6th Cir. 2006) (holding no § 1983 enforceable right under Title IV-D of Social Security Act for full distribution of received child support payments to custodial parents within two days of receipt by State);
204. Arrington v. Helms, 438 F.3d 1336, 1347 (11th Cir. 2006) (holding no enforceable § 1983 right to distribution of child support payments under Title IV-D of Social Security Act);
205. Walters v. Weiss, 392 F.3d 306, 313 (8th Cir. 2004) (holding no enforceable § 1983 right under Title IV-D of Social Security Act to be free from administrative costs and fees for collection, distribution, and disbursement of child support payments).
206. See, e.g., 31 Foster Children v. Bush, 329 F.3d 1255, 1274 (11th Cir. 2003) (holding no enforceable § 1983 right in provisions of Adoption Assistance Act).
207. Jane Perkins, Nat'l Health Law Program, Fact Sheet: Developments Affecting Medicaid Cases Filed Under 42 U. S. C. § 1983, at 8 (2008), available at http://www.health law.org/library/attachment.139385 (on file with the Columbia Law Review) [hereinafter Perkins, Developments] ("The court's reasoning in these decisions could represent precedent in your jurisdiction that will affect Medicaid.").
208. Rosenbaum, supra note 3, at 6-8. "Medicaid, in short, stands as the nation's central means of compensating for the lack of a unified, population-based system of health care finance, the consequence of which is the total or partial exclusion of tens of millions of persons who tend to be poorer and sicker than the norm."
209. Id. at 8.
210. Id. at 29. Rosenbaum conducted a Google search for the terms "Medicaid" and "unsustainable" in September 2005 that returned 33, 700 hits. Similarly, "Medicaid" and "scam" returned 832, 000 hits. Id. In July 2009, the same searches yielded, respectively, 184, 000 and 259, 000 hits.
211. Schweiker v. Gray Panthers, 453 U. S. 34, 43 (1981) (quoting Friedman v. Berger, 547 F.2d 724, 727 n. 7 (2d Cir. 1976) (Friendly, J.)).
212. Ctrs. for Medicare and Medicaid Servs., Dep't of Health & Human Servs., 2008 Actuarial Report on the Financial Outlook for Medicaid, at iii (2008), available at http://www.cms.hhs.gov/ActuarialStudies/downloads/ MedicaidReport2008.pdf (on file with the Columbia Law Review) [hereinafter Ctrs. for Medicare and Medicaid Servs., Actuarial Report];
213. Carmen DeNavas-Watt et al., U. S. Census Bureau, Income, Poverty, and Health Insurance Coverage in the United States: 2007, at tbl. C-1 (2007), available at http://www.census.gov/prod/2008pubs/p60-235.pdf (on file with the Columbia Law Review).
214. Ctrs. for Medicare and Medicaid Servs., Actuarial Report, supra note 117, at iii.
215. Rosenbaum, supra note 3, at 24.
216. See id. at 27 (describing one particularly egregious case in which facility "was used to return millions of dollars to San Francisco while its 1400 mentally disabled residents were left to endure terrible conditions").
217. For a thorough comparison of the two competing schools of thought regarding Medicaid reform during this period-that of the Bush Administration and that of state officials-see id. at 30-35 ("The two positions bore some similarity, but they also underscored the fundamental differences that flow from the federalism-driven political schism that has characterized the program.").
218. Deficit Reduction Act of 2005, Pub. L. No. 109-171, 120 Stat. 4 (2006). Congress made a few technical amendments to the DRA with the Tax Relief and Health Care Act of 2006, Pub. L. No. 109-432, 120 Stat. 2922 (2006). The changes discussed in this Note were instituted with the original DRA.
219. Nat'l Health Law Program, Highlights of Recent Changes to the Medicaid Act 1 (2007), available at http://www.healthlaw.org/library/item.139456- Highlights-of-Recent-Changes-to-the-Medicaid-Act-April-07 (on file with the Columbia Law Review) [hereinafter NHeLP, Highlights]. Among the DRA's changes, § 6011 (a) amends 42 U. S. C. § 1396p (c) (1) (B) (i) to require a sixty-month look-back period for asset transfers to determine eligibility, and § 6036 creates a new section of the Medicaid Act that imposes stricter documentation requirements for individuals to prove the citizenship or alien status necessary to receive long-term benefits.
220. See 42 U. S. C. § 1396b (x) (2006).
221. For a discussion of these and other changes to long-term care under Medicaid, see generally Gene v. Coffey et al., Analysis of Changes to Federal Medicaid Laws Under the Deficit Reduction Act of 2005, 2 Nat'l Acad, of Elder L. Att'ys J. 189 (2006);
222. Morris Klein, Medicaid Eligibility After the 2005 Deficit Reduction Act, Md. Bar J., Mar. 2008, at 32;
223. see also Jacob Press, Comment, Poor Law: The Deficit Reduction Act's Citizenship Documentation Requirement for Medicaid Eligibility, 8 U. Pa. J. Const. L. 1033, 1034 (2006) (criticizing documentation requirement as "incompatible with constitutionally-mandated norms of justice and equality").
224. For an examination of how the DRA affected Medicaid providers, see Connie A. Raffa, New Enforcement Powers and Incentives Aimed at Medicaid Fraud Enacted by the DRA, J. Health Care Compliance, July-Aug. 2008, at 5, 9-10 (discussing new enforcement requirements and suggesting ways provider can protect itself);
225. Andrew E. Bluestein & Stacey L. Gulick, Deficit Reduction Act Heightens Corporate Compliance Requirements for Medicaid Providers, N. J. Law., Feb. 2007, at 9, 9-10 (summarizing basic elements of corporate compliance program required under the DRA).
226. NHeLP, Highlights, supra note 121, at 1. Because of these dramatic changes to the Medicaid scheme, one commentator has noted that the DRA may signal a tipping point depending on "the extent to which the DRA is considered to be a new vision for Medicaid, no longer as a legally enforceable right to coverage akin to insurance, but as a vast source of federal revenue sharing for states... so broad so as to eviscerate any notion of entitlement." Rosenbaum, supra note 3, at 47.
227. Cong. Budget Office, Cost Estimate, S. 1932, Deficit Reduction Act of 2005, at 35 (2006), available at http://www.cbo.gov/ftpdocs/70xx/doc7028/ sl932conf.pdf (on file with the Columbia Law Review).
228. Rosenbaum, supra note 3, at 35.
229. See Nat'l Health Law Program, The Deficit Reduction Act of 2005: Congress Targets Beneficiaries for Cuts, Health Advocate, Spring 2006, at 2 [hereinafter NHeLP, Health Advocate] ("[S]tates will have unprecedented flexibility to slice and dice Medicaid benefits [and] cost sharing... among eligibility groups and parts of the state.").
230. Id. For a shorter summary of the DRA's changes, see NHeLP, Highlights, supra note 121.
231. 42 U. S. C. § 1396u-7 (a) (2006).
232. Id. § 1396o-l (a).
233. Rosenbaum, supra note 3, at 40.
234. See supra note 19 (listing mandated services).
235. The DRA excludes certain categories of individuals from this benchmark coverage including pregnant women, blind or disabled individuals, and terminally ill hospice patients. § 1396u-7 (a) (2) (B).
236. "[A] State, at its option... may provide for medical assistance under this subchapter to individuals... specified by the State through enrollment coverage that provides... benchmark coverage... or benchmark equivalent coverage." Id. § 1396u-7 (a).
237. There are four types of benchmark coverage specified in the DRA. Id. § 1396u-7 (b) (1). First, states may pay to enroll individuals in an equivalent of the standard Blue Cross/Blue Shield preferred provider Federal Employee Health Benefit Program (FEHBP). For a chart comparing EPSDT benefits covered by the Medicaid program and the FEHBP plan
238. see Rosenbaum, supra note 3, at 43-44. Second, a state may pay to enroll individuals in coverage equivalent to what is available for state employees. Third, states may enroll individuals in coverage equivalent to the largest commercial, non-Medicaid HMO in the state.
239. Finally, the Secretary of Health and Human Services (HHS) may approve a plan that she determines is "appropriate coverage for the population proposed to be provided such coverage." § 1396u-7 (b) (1) (D).
240. See supra note 19 for a number of these enumerated benefits.
241. § 1396u-7 (b) (2) (A). The Medicaid regulations, which were published in December 2008 and will be effective in December 2009, do not designate any additional services as required under benchmark equivalent coverage.
242. See State Flexibility for Medicaid Benefit Packages, 73 Fed. Reg. 73, 694, 73, 696 (Dec. 3, 2008) (to be codified at 42 C. F. R. pt. 440) (listing services required under benchmark equivalent coverage);
243. see also State Flexibility for Medicaid Benefit Packages, 74 Fed. Reg. 15, 221, 15, 221 (Apr. 3, 2009) (reopening comment period and delaying effective date of December 3, 2008 final rule until December 31, 2009);
244. State Flexibility for Medicaid Benefits Packages: Delay of Effective Date, 74 Fed. Reg. 5808, 5809 (Feb. 2, 2009) (delaying effective date of December 3, 2008 final rule until April 3, 2009).
245. "Benchmark equivalent" coverage must also have an average actuarial value equivalent to a benchmark package, id. § 1396u-7 (b) (2) (B)
246. and for prescription drug coverage, mental health services, vision services, and hearing services, the plan must provide at least seventy-five percent of the actuarial value of a benchmark package, id. § 1396u-7 (b) (2) (C).
247. NHeLP, Health Advocate, supra note 125, at 25-26.
248. See supra text accompanying note 135.
249. See § 1396o (a) (prohibiting cost sharing for children, pregnant women, inpatients in hospitals, emergency service, and hospice care).
250. 42 C. F. R. § 447.54 (2008).
251. § 13960 (e).
252. Id. § 13960-1 (a) (1).
253. The DRA's premiums and copayment provisions apply "[n] othwithstanding section[] 1396o... of this title." Id.
254. Id. § 13960-1 (a) (1) - (2).
255. Id. § 13960-1 (d).
256. However, providers are not allowed to impose fees or premiums on certain groups of individuals, or on certain services. For instance, a state may not allow a provider to impose premiums on individuals with family income of between 100 and 150 percent of the poverty line, id. § 1396o-1 (b) (1)
257. pregnant women, terminally ill individuals receiving hospice care, and disabled children. Id. § 13960-1 (b) (3). In addition, a state may not allow providers to impose copayments on preventive services, services to terminally ill individuals receiving hospice care, emergency services, and family planning services and supplies. Id.
258. Id. § 13960-1 (a) (1).
259. See Donenberg, supra note 22, at 1521-22 (noting that states, as yet, have "failed to contest the applicability of § 1983 in light of the statutory modifications occasioned by the DRA").
260. See Jane Perkins, Nat'l Health Law Program, Issue Brief: Update on § 1983 Enforcement of the Medicaid Act 2 (2007), available at http://www.healthlaw.org/library/attachment.94516 (on file with the Columbia Law Review) ("[T]he Medicaid Act has received the vast bulk of courts' post-Gonzaga attention. ").
261. As of January 2007, there were over fifty published cases that cite Gonzaga and discuss whether the Medicaid Act is enforceable under § 1983. Id.
262. See Rochelle Bobroff, Section 1983 and Preemption: Alternative Means of Court Access for Safety Net Statutes, 10 Loy. J. Pub. Int. L. 27, 63 (2008) (noting that post-Gonzaga, "circuit courts have generally rejected the enforceability of Medicaid provisions that contain broad directives, including several provisions that had been deemed enforceable prior to Gonzaga");
263. Dunne, supra note 83, at 1003 ("After Gonzaga, the overall trend in Medicaid Act cases has been towards a narrowed § 1983 enforcement right in an aggregate sense.").
264. Dunne, supra note 83, at 1004.
265. 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, 1508 (2003).
266. See infra Part III.A.3;
267. see also Harris v. Olszewki, 442 F.3d 456, 461 (6th Cir. 2006)
268. (holding Medicaid's "freedom of choice" provision, 42 U. S. C. § 1396a (a) (23) (2006), created right enforceable through § 1983);
269. *12 (D. Haw. May 11, 2009) (following Harris and finding enforceable right through § 1983 for Medicaid's freedom of choice provision).
270. The Supreme Court remains actively interested in § 1983 enforcement of the Medicaid Act. For example, after the Fifth Circuit held that individuals had no rights enforceable through § 1983 under Medicaid's "equal access" provision, Equal Access for El Paso, Inc. v. Hawkins, 509 F.3d 697, 704 (5th Cir. 2007)
271. (examining 42 U. S. C. § 1396a (a) (30) (A)), the plaintiffs petitioned for certiorari.
272. Petition for a Writ of Certiorari, Equal Access for El Paso, Inc. v. Hawkins, 129 S. Ct. 34 (2008) (No. 07-1160). Because there was no circuit split on the question of the provision's enforceability-all circuits had found it unenforceable-there seemed little chance that the Supreme Court would grant the petition. Perkins, Developments, supra note 111, at 8. The Court, however, requested that the State file a response to the petition for certiorari.
273. Id. at 9.
274. Although the Court ultimately denied the petition, 129 S. Ct. 34, the Court's request for a response from the State signaled that the Court remains interested in this area.
275. See Perkins, Developments, supra note 111, at 9 (noting Court's "unusual step" of requesting response to petition).
276. 42 U. S. C. § 1396a (a) (30) (2006).
277. See, e.g., Pa. Pharmacists Ass'n v. Houstoun, 283 F.3d 531, 543-44 (3d Cir. 2002);
278. Evergreen Presbyterian Ministries Inc. v. Hood, 235 F.3d 908, 932 (5th Cir. 2000) (en banc);
279. Visiting Nurse Ass'n of N. Shore v. Bullen, 93 F.3d 997, 1004 n. 7 (1st Cir. 1996);
280. Ark. Med. Soc'y, Inc. v. Reynolds, 6 F.3d 519, 528 (8th Cir. 1993). The courts were split, however, on whether the equal access provision created an enforceable right for Medicaid providers. The First, Seventh, and Eighth Circuits found an enforceable right for providers.
281. See Bullen, 93 F.3d at 1005;
282. Methodist Hosps., Inc. v. Sullivan, 91 F.3d 1026, 1029 (7th Cir. 1996);
283. Ark. Med. Soc'y, 6 F.3d at 528.
284. The Third and Fifth Circuits, however, found that § 1396a (a) (30) did not create an enforceable right for Medicaid providers.
285. See Pa. Pharmacists Ass 'n, 283 F.3d at 543;
286. Walgreen Co. v. Hood, 275 F.3d 475, 478 (5th Cir. 2001);
287. Evergreen, 235 F.3d at 929.
288. See Equal Access for El Paso, 509 F.3d at 703 ("[T]he Medicaid Act's Equal Access provision... does not confer individual private rights that are enforceable under § 1983.");
289. Mandy R. ex rel. Mr. & Mrs. R. v. Owens, 464 F.3d 1139, 1148 (10th Cir. 2006) (finding no enforceable rights for recipients);
290. Westside Mothers v. Olszewski (Westside Mothers II), 454 F.3d 532, 543 (6th Cir. 2006) (no enforceable rights for recipients or providers);
291. Sanchez ex rel. Hoebel v. Johnson, 416 F.3d 1051, 1059-60 (9th Cir. 2005) (same);
292. Long Term Care Pharmacy Alliance v. Ferguson, 362 F.3d 50, 57 (1st Cir. 2004) (no enforceable rights for providers).
293. But see Pediatric Specialty Care, Inc. v. Ark. Dep't of Human Servs., 443 F.3d 1005, 1015-16 (8th Cir. 2006) (finding enforceable rights for recipients and providers).
294. For a thorough discussion of these cases and an argument for finding that the equal access provision creates individual rights, see Gardella, supra note 17, at 733-55.
295. See, e.g., Westside Mothers II, 454 F.3d at 542-43 ("[Section] 1396a (a) (30) has an aggregate focus rather than an individual focus that would evince congressional intent to confer an individually enforceable right.").
296. See, e.g., Long Term Care Pharmacy Alliance, 362 F.3d at 57 (noting Gonzaga "compels us to reexamine" the Circuit's previous holding that found equal access provision created enforceable right).
297. It does not appear that any circuits addressed the enforceability of this provision before Gonzaga. See Watson v. Weeks, 436 F.3d 1152, 1162 (9th Cir. 2006) ("We are the first federal circuit to address whether section 1396a (a) (17) creates a section 1983 right.").
298. 42 U. S. C. § 1396a (a) (17) (2006).
299. Lankford v. Sherman, 451 F.3d 496, 509 (8th Cir. 2006) (noting provision "is not phrased in terms of the individuals it intends to benefit" and focuses on aggregate practices as opposed to individual entitlements);
300. Watson, 436 F.3d at 1162 ("[S]ection 1396a (a) (17) is not framed in terms of the individuals benefited, which is fatal under Gonzaga to the existence of a section 1983 right.");
301. *2 (D. Colo. Sept. 2, 2005) (finding reasonable standards provision did not create enforceable right under Gonzaga analysis);
302. Sanders ex rel. Rayl v. Kan. Dep't of Soc. and Rehab. Servs., 317 F. Supp. 2d 1233, 1250 (D. Kan. 2004) (same).
303. But see Mendez v. Brown, 311 F. Supp. 2d 134, 140 (D. Mass. 2004) (finding plaintiffs have enforceable right of action for violations of § 1396a (a) (17));
304. *5 (E. D. Ky. Mar. 25, 2004) (same).
305. The Ninth Circuit's decision, in particular, has been criticized by at least one commentator, who notes that § 1396a (a) (17) needs to be read in conjunction with § 1396a (a) (10), because these provisions, "read together, guarantee that 'reasonable' treatment will be made 'available.'... Thus, millions of Medicaid beneficiaries in our nation's largest judicial circuit are no longer guaranteed treatment not specifically enumerated [in particular subsections of the Act] no matter how many physicians certify this treatment as medically necessary." Dunne, supra note 83, at 1011 (emphasis omitted).
306. Watson, 436 F.3d 1152 (discussed infra Part II. B.3);
307. S. D. ex rel. Dickson v. Hood, 391 F.3d 581 (5th Cir. 2004) (discussed infra Part II. B.2);
308. Sabree ex rel. Sabree v. Richman, 367 F.3d 180 (3d Cir. 2004) (discussed infra Part II. B.1). These decisions are generally consistent with circuit cases prior to Gonzaga, in which three circuits had held that the availability provision contained rights enforceable through § 1983.
309. See Westside Mothers v. Haveman, 289 F.3d 852 (6th Cir. 2002);
310. Pediatric Specialty Care, Inc. v. Ark. Dep't of Human Servs., 293 F.3d 472 (8th Cir. 2002);
311. Miller ex rel. Miller v. Whitburn, 10 F.3d 1315 (7th Cir. 1993).
312. Donenberg, supra note 22, at 1522 ("In short, the question of how the new statutory provisions affect the operation of prior Medicaid law has not yet been squarely presented to a federal appellate court.").
313. 367 F.3d at 181. After discussing the facts of the case, the court noted: "That plaintiffs merit sympathy does not escape our notice, but neither does it govern our reasoning."
314. Id. at 183.
315. Id. at 181.
316. Id.
317. Id.; cf. Pennhurst State Sch. & Hosp. v. Halderman, 451 U. S. 1, 28 (1981) ("In legislation enacted pursuant to the spending power, the typical remedy for state noncompliance with federally imposed conditions is not a private cause of action for noncompliance but rather action by the Federal Government to terminate funds to the State."). Indeed, a state that fails to comply with its Medicaid plan runs the risk of having its funding revoked by the Secretary of Health and Human Services.
318. See 42 U. S. C. § 1396c (2006) (noting Secretary shall, after reasonable notice and hearing, "notify such State agency that further payments will not be made to the State" as long as it is found in noncompliance).
319. Sabree, 367 F.3d at 181.
320. See id. at 183 ("This analysis,... as will become clear, is assuredly not for the timid....").
321. Id. at 183 n. 7.
322. See supra notes 107-111.
323. Sabree, 367 F.3d at 189.
324. Id.
325. See supra notes 80-84 and accompanying text.
326. Sabree, 367 F.3d at 189-90.
327. 42 U. S. C. § 1396a (a) (2006).
328. Sabree, 367 F.3d at 190.
329. Id. (noting it is "difficult, if not impossible, as a linguistic matter, to distinguish" the relevant language).
330. Id.
331. (quoting Blessing v. Freestone, 520 U. S. 329, 341 (1997)).
332. Id. (noting availability provision "enumerate [s] the entitlements available to 'all eligible individuals'" (quoting 42 U. S. C. § 1396a (a) (8) (2000))).
333. Id. (quoting Alexander v. Sandoval, 532 U. S. 275, 289 (2001)).
334. Id. at 191. The court noted that "[o]ur judicial function is limited to recognizing those rights which Congress unambiguously confers, and in doing so we would be remiss if we did not consider the whole of Congress's voice on the matter-the statute in its entirety." Id. (internal quotation marks omitted). As a result, the court turned to the Act's structure. Although as a general rule when the text of the statute is unambiguous, judicial inquiry need not proceed, "'[g]eneral' rules... are susceptible to exceptions, " and determining whether a statute confers enforceable rights is an "instance [] in which [the] inquiry does not end with the plain language of the statute."
335. Id. at 190.
336. The Sabree court found that because the text unambiguously conferred individual rights, it was unnecessary to examine the statute's legislative history: "Where, as here, the plain meaning of the text is evident, we need not look further to determine congressional intent." Id. ("Recourse to the legislative history... is unnecessary in light of the plain meaning of the statutory text." (citing and quoting Darby v. Cisneros, 509 U. S. 137, 147 (1993))).
337. Id. at 191.
338. 42 U. S. C. § 1396 (2006).
339. Sabree, 367 F.3d at 191.
340. § 1396c.
341. Sabree, 367 F.3d at 191-92.
342. Id. (citing Gonzaga Univ. v. Doe, 536 U. S. 273, 288-89 (2002)
343. and Blessing v. Freestone, 520 U. S. 329, 343 (1997)).
344. Id.
345. Id.
346. Id. at 192.
347. 391 F.3d 581, 607 (5th Cir. 2004). The plaintiff claimed that Louisiana had unlawfully denied his claim for EPSDT under Medicaid when it refused to pay for the disposable incontinence underwear that a doctor prescribed as necessary to ameliorate his mental and physical conditions. Id. at 584. For a brief discussion of EPSDT
348. see supra note 14.
349. Dickson, 391 F.3d at 603. The court noted that the provision contains "precisely the sort of rights-creating language identified in Gonzaga as critical to demonstrating a congressional intent to establish a new right." Id. (internal quotation marks omitted).
350. Id. (quoting 42 U. S. C. § 1396a (10) (A) (2000)).
351. 42 U. S. C. § 1396a (2006).
352. Id. § 2000d;
353. U. S. C. § 1681 (2006).
354. Dickson, 391 F.3d at 603.
355. See supra notes 71-73 and accompanying text (describing Suter fix).
356. Dickson, 391 F.3d at 603
357. (quoting 42 U. S. C. § 1320a-2 (2000));
358. see also Harris v. James, 127 F.3d 993, 1003 (11th Cir. 1997) ("[I]n light of [the Syter fix], it is clear that the mere fact that an obligation is couched in a requirement that the State file a plan is not itself sufficient grounds for finding the obligation unenforceable under § 1983.").
359. 436 F.3d 1152, 1159 (9th Cir. 2006).
360. Id. at 1154.
361. Id. at 1161.
362. Id. at 1158, 1161.
363. Since the DRA took effect, most courts have continued to find the availability provision enforceable through § 1983. For example, although the Ninth Circuit decided Watson before the DRA's changes went into effect, it has continued to find that the availability provision is enforceable, even though it has not addressed directly the changes to Medicaid as a result of the DRA.
364. See Spry v. Thompson, 487 F.3d 1272, 1275-76 (9th Cir. 2007) ("We do not see a sound basis for distinguishing Watson, and conclude that if there is a violation in this case of the statutory standards, then the plaintiffs in this case have a private right of action enforceable under section 1983."); cf. Katie A. ex rel. Ludin v. Los Angeles County, 481 F.3d 1150, 1153 n. 7 (9th Cir. 2007) (noting defendants did not dispute district court ruling that plaintiffs had enforceable right under availability provision).
365. In addition, the Tenth Circuit may have implicitly accepted the proposition that the availability provision remains enforceable when it "assume [d] without deciding" that the plaintiffs could enforce availability provision rights through § 1983. Okla. Chapter of Am. Acad, of Pediatrics v. Fogarty, 472 F.3d 1208, 1212 n. 1 (10th Cir. 2007)
366. (quoting Mandy R. ex rel. Mr. & Mrs. R. v. Owens, 464 F.3d 1139, 1143 (10th Cir. 2006)). Thus, circuit courts have continued to follow their pre-DRA case law to find availability provision rights enforceable, but have not directly addressed the new post-DRA Medicaid scheme.
367. 580 F. Supp. 2d 235, 243 (S. D. N. Y. 2008). The Southern District of New York is in the Second Circuit, so the three decisions discussed supra Parts II. B.1.-B.3 were not binding on the Casillas court.
368. Casillas, 580 F. Supp. 2d at 242-43.
369. The plaintiff challenged New York's regulation that disallowed reimbursement for gender reassignment treatments and services. NY. Comp. Codes R & Regs. tit. 18, § 505.2 (1) (2008) (mistakenly reported as §505.2 (i)).
370. 42 C. F. R. § 440.230 (d) (2008) (emphasis added). There is a split among the circuits regarding whether regulations may establish enforceable rights. However, even some circuits that have found regulations cannot create enforceable rights have held that courts may turn to regulations to help interpret the content of statutory rights.
371. See Bradford C. Mank, Can Administrative Regulations Interpret Rights Enforceable Under Section 1983?: Why Chevron Deference Survives Sandoval and Gonzaga, 32 Fla. St. U. L. Rev. 843, 844 (2005) ("[S]ome decisions in these circuits have recognized that valid regulations may help courts interpret, 'define,' or 'flesh out' the content of statutory rights.").
372. For an argument that where Congress delegates authority to an agency to issue regulations implementing a congressionally intended individual right, the agency's interpretation of those rights in its regulations should be presumptively enforceable through § 1983, see id. at 895-96.
373. Casillas, 580 F. Supp. 2d at 242-43.
374. Id. at 243.
375. *17 (D. Haw. May 11, 2009)
376. (using regulation to find a Medicaid provision, 42 U. S. C. § 1396u-2 (b) (5) (2006), was not too vague for judicial enforcement because it "furnish [ed] specific criteria for states to evaluate").
377. 42 C. F. R. § 440.230 (d). States' "appropriate limits" on services may actually conflict with other Medicaid regulations, which provide that "[e]ach State must ensure that all services covered under the State plan are available and accessible to enrollees,"
378. id. § 438.206 (a), and that "[t]he State must ensure, through its contracts, that each [Managed Care Organization]... [m]aintains and monitors a network of appropriate providers... sufficient to provide access to all services covered under the contract," considering, among other things, "the geographic location of providers and Medicaid enrollees,"
379. id. § 438.206 (b) (1).
380. *6 (S. D. W. Va. May 15, 2009) (order denying motion to dismiss) (citing S. D. ex rel. Dickson v. Hood, 391 F.3d 581 (5th Cir. 2004), which was not binding on the court, and holding availability provision intended to benefit the plaintiffs, not "vague and amorphous" and therefore "the statute [] confer[s] rights that are vindicable under § 1983");
381. *19 (E. D. Mich. May 14, 2009) (issuing order denying motion to dismiss and following Westside Mothers v. Olszewski (Westside Mothers II), 454 F.3d 532 (6th Cir. 2006), to find availability provision enforceable under § 1983).
382. *9 (W. D. N. Y. July 17, 2009) (quoting extensively from Casillas and following reasoning because both cases "involved the same defendant, the same legal issues," and nearly identical facts).
383. See Donenberg, supra note 22, at 1523.
384. See supra text accompanying note 182.
385. Casillas, 580 F. Supp. 2d at 235.
386. For a view from commentators on how significant these changes were, see supra notes 122, 124, and accompanying text.
387. See supra note 122 and accompanying text.
388. See supra Part I. C. I.
389. See supra Part I. C.2.
390. See Donenberg, supra note 22, at 1527 (noting DRA language focused on state policy and practice, not on individual rights).
391. See supra note 122 and accompanying text. As of the end of fiscal year 2008, eight states had approved benchmark or benchmark equivalent plans for some groups of Medicaid beneficiaries.
392. See Kaiser Comm'n on Medicaid and the Uninsured, Headed for a Crunch: An Update on Medicaid Spending, Coverage and Policy Heading into an Economic Downturn 41-42 (2008), available at http://www.kff.org/medicaid/upload/7815.pdf (on file with the Columbia Law Review) (discussing plans of Idaho, Kansas, Kentucky, South Carolina, Virginia, Washington, West Virginia, and Wisconsin).
393. See supra note 19 and accompanying text.
394. Rosenbaum, supra note 3, at 41.
395. 42 U. S. C. § 1396u-7 (a) (2) (A) (2006) ("[A] State may require that a full-benefit eligible individual... within a group obtain [benchmark benefits].").
396. See supra Part I. C.2.
397. 3§ 1396o-l (a) (1).
398. See Donenberg, supra note 22, at 1511 (noting these provisions "allow states for the first time to put concerns about recouping state revenues above the interests of individual beneficiaries in receiving medical services").
399. See id. at 1525-26 ("[T]he well-documented empirical effects of premium and cost-sharing mechanisms also suggest strongly that Congress did not intend to confer a right to Medicaid benefits enforceable by § 1983.").
400. This argument, however, is farfetched. The logic goes as follows: Since cost sharing makes it likely that some individuals will not use particular services, and Congress knew of this fact, the provisions cannot provide an enforceable right under § 1983.
401. If this logic were correct, it would suggest that no entitlement or service with a fee attached should be enforced through § 1983.
402. This argument would turn congressional knowledge that some individuals would forego this service into congressional intent to foreclose a § 1983
403. cause of action in any statutory scheme where fees are applied. Although fees may affect the content of a Medicaid right, they do not affect its analysis under § 1983.
404. See supra text accompanying note 182.
405. Sabree ex rel. Sabree v. Richman, 367 F.3d 180, 192 (3d Cir. 2004).
406. As noted above, members of the Supreme Court have indicated that they disagree with current precedent that holds beneficiaries have individual rights to sue under Spending Clause acts in general, and the Medicaid Act in particular. See supra note
407. (citing opinions by Justices Scalia and Thomas arguing against right of beneficiaries to bring suit).
408. See Casillas v. Daines, 580 F. Supp. 2d 235, 243 (S. D. N. Y. 2008) (concluding availability provision "does not unambiguously confer the right that this plaintiff asserts").
409. Id. at 242-43 & n. 3
410. (citing Golden State Transit Corp. v. City of Los Angeles, 493 U. S. 103, 111-12 (1989) (holding, based on regulations promulgated under statute, statute was not vague and amorphous)).
411. Id. (noting that availability provision "do[es] not mandate that a particular level or type of care must be provided"). But see supra note 210 for recent court decisions finding the availability provision enforceable through § 1983.
412. Cf. Rosenbaum, supra note 3, at 47 (suggesting that Medicaid legislation in the future may lead to "one of those magical 'tipping points' when the law ceases to be one thing and becomes another in the eyes of courts").
413. Some commentators have argued that the DRA drastically changes the basic structure of Medicaid. See, e.g., supra notes 122, 124, and accompanying text (discussing DRA's extensive changes to Medicaid}
414. Although this Note argues that under certain circumstances Medicaid's availability provision remains enforceable through § 1983 litigation, there are also a number of possible alternative causes of action that a beneficiary can pursue. First, if a plaintiff's claim is a result of a lack of rules-for example, if a state does not have rules to ensure that Medicaid providers or plans are actually offering care and services to beneficiaries-a plaintiff may be able to file a rulemaking petition with the state agency to request that the agency adopt, amend, or repeal the applicable rule.
415. See, e.g., Me. Rev. Stat. Ann. Tit. 5, § 8055 (2002) (allowing petitions for rule adoption or modification, which may be denied with reasons unless petition "is submitted by 150 or more registered voters of the State," in which case agency must "initiate appropriate rulemaking proceedings within 60 days");
416. Mont. Admin. R. 1.3.205 (2008) (authorizing interested persons or members of the legislature to petition agency to adopt, amend, or repeal a rule, which agency can grant or deny with written reasons);
417. N. H. Rev. Stat. Ann. § 541-A:4 (2007) (allowing petitions by interested persons, which agency may grant or deny with written reasons "within 30 days of receiving the petition");
418. Tex. Gov't Code § 2001.021 (2008) (allowing petitions by interested persons, which agency may grant or deny with written reasons "not later than the 60th day after the date of submission").
419. See generally Jane Perkins, Sarah Somers & Steve Hitov, Nat'l Health Law Program, Preparing and Managing a Medicaid Case: An Introductory Guide 14-18 (2006), available at http://www.healthlaw.org/search/item.129064 (on file with the Columbia Law Review) (discussing "the different fora in which advocates might bring claims and some of the advantages and drawbacks of each"). Second, one commentator has argued that a fair hearing before a state administrative agency provides another alternative route to relief.
420. See Donenburg, supra note 22, at 1527-45 (discussing fair hearing alternative, but noting, on balance, "[f] air hearing actions will be somewhat less effective at restraining state action than federal legal mechanisms like § 1983, since there is variability in the scope of the fair hearing right across the states"). Third, it is possible that a Medicaid beneficiary will be able to sue under a contract theory.
421. See Smallwood v. Cent. Peninsula Gen. Hosp., 151 P.3d 319, 324 (Alaska 2006) (holding plaintiff had contract-based right of action as third-party beneficiary of provider agreement between hospital and state);
422. cf. Mall v. Pub. Health Trust, 88 F. Supp. 2d 1376, 1385 (S. D. Fla. 2000) (finding Medicaid's prohibition on "balance billing" creates "a thirdparty beneficiary contractual obligation on the part of the health care provider to collect from the Medicaid patient no more than the amount of the Medicaid payment"). A final alternative avenue for a plaintiff in federal court may be a suit claiming that the federal Medicaid Act preempts a state plan or action under the Supremacy Clause of the Constitution, U. S. Const, art. VI, cl. 2. The Supremacy Clause provides that federal law is "the supreme Law of the Land," which overrides "any Thing in the Constitution or Laws of any State."
423. Id. In the past, the Supreme Court has found preemption of state action based not only on federal statutes, but also on administrative regulations, executive orders, and common law.
424. See Chang Derek Liu, Note, The Blank Page Before You: Should the Preemption Doctrine Apply to Unwritten Practices?, 109 Colum. L. Rev. 350, 363-64, 384-94 (2009) (arguing preemption doctrine should reach systemic unwritten policies of state agencies). Preemption is a parallel and alternative route for a plaintiff to sue in federal court.
425. Lankford v. Sherman, 451 F.3d 496, 509, 513 (8th Cir. 2006) (finding no enforceable rights under § 1983 but holding "plaintiffs have established a likelihood of success on the merits of their preemption claim as it relates to Medicaid's reasonablestandards requirement");
426. see also supra note 24 (collecting commentary discussing preemption suits). A more thorough review of these alternatives is outside the scope of this Note.
427. Casillas, 580 F. Supp. 2d at 241.
428. The following groups are not eligible for enrollment in benchmark or benchmark equivalent plans: pregnant women with incomes at or below 133% of the poverty line, blind or disabled individuals, dually eligible Medicare/Medicaid beneficiaries, terminally ill hospice patents, institutionalized individuals, individuals with special medical needs, beneficiaries qualifying for long term care, children in foster care, TANF parents, women receiving treatment for breast or cervical cancer, beneficiaries with tuberculosis, aliens receiving care for an emergency medical condition, and the medically needy. 42 U. S. C. § 1396u-7 (a) (2) (B) (2006);
429. NHeLP Health Advocate, supra note 125, at 26. In addition, states cannot impose premiums (fees) on the following groups: individuals whose family income does not exceed the poverty line, children in mandatory coverage categories under the age of eighteen (such as children in foster care), persons in institutions, women in treatment for breast or cervical cancer, pregnant women, and terminally ill individuals receiving hospice care. § 1396o-l (a) (2) (A), (b) (3) (A);
430. NHeLP, Health Advocate, supra note 125, at 23 chart 2.
431. States cannot impose copayments on services for individuals under the age of eighteen in mandatory coverage categories, pregnant women, terminally ill individuals receiving hospice care, persons in institutions, women in treatment for breast or cervical cancer, and disabled children. § 1396o-l (b) (3) (B). Nor can states impose copayments on the following services: preventive services (such as well-baby and well-child care and immunizations) for children under the age of eighteen regardless of income, emergency services, and family planning services.
432. Id.;
433. NHeLP, Health Advocate, supra note 125, at 23
434. See supra Part II. B.
435. The DRA provides that the benchmark provisions apply " notwithstanding" any other section of the Act. § 1396u-7 (a) (1) (A). Individuals enrolled in a benchmark equivalent plan, on the other hand, will be able to bring claims if a state plan fails to provide them with any of the statutorily enumerated minimum services-which are enumerated only for benchmark equivalent plans-such as inpatient and outpatient services, as well as well-baby and well-child care.
436. See supra text accompanying note 135.
437. See supra notes 199-203 and accompanying text for discussion of the Ninth Circuit case of Watson v. Weeks, on which this hypothetical is based. The Watson court did address the DRA's changes to the Medicaid Act.
438. See text accompanying supra note 162.
439. § 1396o-l (a) (1).
440. Blessing v. Freestone, 520 U. S. 329, 342 (1997).
441. Casillas v. Daines, 580 F. Supp. 2d 235, 241 (S. D. N. Y. 2008).
442. See supra note 19 for a list of enumerated services.
443. See supra notes 237-238 for a list of groups protected from copayments and premiums.
444. § 1396a (a) (10) (A).
445. Id. § 2000d;
446. U. S. C. § 1681 (a) (2006).
447. Sabree ex rel. Sabree v. Richman, 367 F.3d 180, 190 (3d Cir. 2004)
448. (citing Blessing v. Freestone, 520 U. S. 329, 341 (1997)).
449. Id.
450. S. D. ex rel. Dickson v. Hood, 391 F.3d 581, 604 (5th Cir. 2004).
451. Gonzaga Univ. v. Doe, 536 U. S. 273, 289 (2002) (discussing FERPA's enforcement mechanism).
452. Sabree, 367 F.3d at 191.
453. See supra Part II. B.2.
454. The Gonzaga Court noted that "FERPA's nondisclosure provisions further speak only in terms of institutional policy and practice... [t]herefore... they have an aggregate focus, they are not concerned with whether the needs of any particular person have been satisfied, and they cannot give rise to individual rights." Gonzaga, 536 U. S. at 288 (citations and internal quotation marks omitted).
455. Sabree, 367 F.3d at 190
456. (quoting U. S. Nat'l Bank v. Indep. Ins. Agents, 508 U. S. 439, 455 (1993)).
457. See supra notes 181-182 and accompanying text.
458. See supra Part II. C.l.
459. See 42 U. S. C. § 1396o-l (a) (2006) ("[A] State... at its option... may impose premiums and cost sharing [copayments]....");
460. id. § 1396u-7 (a) (1) (A) (providing that "a State, at its option... may provide for medical assistance" through benchmark coverage).
461. Cf. supra text accompanying notes 52-53 (noting Pennhurst Court found statute at issue did not impose binding obligation on the states because language was precatory rather than mandatory).
462. Gonzaga Univ. v. Doe, 536 U. S. 273, 282 (2002)
463. (quoting Blessing v. Freestone, 520 U. S. 329, 343 (1997)).
464. See supra Part II. B.l.
465. See id.
466. Sabree ex rel. Sabree v. Richman, 367 F.3d 180, 192 (3d Cir. 2004).
467. 42 U. S. C. § 1396a (a) (10) (2006).
468. The Third Circuit in Sabree, for instance, found that § 1396a (a) (8), which provides that "assistance shall be furnished with reasonable promptness to all eligible individuals," was enforceable through § 1983. Sabree, 367 F.3d at 190;
469. see also Bryson v. Shumway, 308 F.3d 79, 89 (1st Cir. 2002) (finding enforceable right under § 1396a (a) (8) post-Gonzaga).
470. See Tobin & Bobroff, supra note 24, at 147 (arguing DRA's "discrete amendments do not fundamentally alter Medicaid"). But
471. see Donenberg, supra note 22, at 1524 (arguing DRA "represent[s] serious structural modifications of Medicaid").
472. See Tobin & Bobroff, supra note 24, at 148 ("[The DRA's] changes were ones of degree rather than kind.").
473. See, e.g., supra note 237 for lists of groups that the states cannot enroll in benchmark coverage, and groups that cannot be required to share in their health care costs.
474. See supra note 222 and accompanying text;
475. see also S. D. ex rel. Dickson v. Hood, 391 F.3d 581, 603 (5th Cir. 2004) (noting requirement of state action-"[a] state must provide"-does not mean statute fails to confer enforceable rights (internal quotation marks omitted) (quoting § 1396a (a) (10) (A) (i))).
476. See § 1396u-7 (a) (2) (B) (ii) (listing blind or disabled individuals as among those who states cannot enroll in benchmark coverage).
477. Watson v. Weeks, 436 F.3d 1152, 1161 (9th Cir. 2006);
478. see supra Part II. B.3 for a discussion of this case.
479. Watson, 436 F.3d at 1161.
480. See Sabree ex rel. Sabree v. Richman, 367 F.3d 180, 190 (3d Cir. 2004) ("Where, as here, the plain meaning of the text is evident, we need not look further to determine congressional intent.");
481. see also Darby v. Cisneros, 509 U. S. 137, 147 (1993) ("Recourse to the legislative history... is unnecessary in light of the plain meaning of the statutory text.").
482. Gonzaga Univ. v. Doe, 536 U. S. 273, 290 (2002).
483. Mank, Suing Under § 1983, supra note 83, at 1479-80.
484. See supra Part II. B.
485. California v. Sierra Club, 451 U. S. 287, 296 n. 7 (1981). But see Donenberg, supra note 22, at 1525 n. 154 (" [A] lack of legislative history explicitly indicating Congress's intent to abrogate the § 1983 right to enforce Medicaid benefits is unlikely to be relevant.").
486. See Johnson v. Transp. Agency, 480 U. S. 616, 629 n. 7 (1987) ("Congress has not amended the statute to reject our construction, nor have any such amendments even been proposed, and we therefore may assume that our interpretation was correct."). But see id. at 672 (Scalia, J., concurring) ("I think we should admit that vindication by congressional inaction is a canard.").
487. 151 Cong. Rec. S12, 065-66 (2005) (emphasis added).
488. See supra note 87 (noting § 1983 provides remedy for violation of federal rights);
489. see also Gonzaga Univ. v. Doe, 536 U. S. 273, 284 (2002) ("Plaintiffs suing under § 1983 do not have the burden of showing an intent to create a private remedy because § 1983 generally supplies a remedy for the vindication of rights secured by federal statutes.").