Bryson v. New Hampshire , 308 F.3d 79 ( 2002 )

United States Court of Appeals
For the First Circuit
No. 02-1059
BONNIE BRYSON and CLAIRE SHEPARDSON, on behalf of themselves
and all others similarly situated,
Plaintiffs, Appellees,
v.
DONALD SHUMWAY, in his capacity as Commissioner of NEW HAMPSHIRE
DEPARTMENT OF HEALTH AND HUMAN SERVICES,
SUSAN FOX, in her capacity as Director of NEW HAMPSHIRE DIVISION
OF DEVELOPMENTAL SERVICES,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Boudin, Chief Judge,
Bownes, Senior Circuit Judge, and
Lynch, Circuit Judge.
Sheila Zakre, with whom Amy Messer and Disabilities Rights
Center, Inc. were on brief, for appellees.
Daniel J. Mullen, Associate Attorney General, with whom Philip
T. McLaughlin, Attorney General, and Suzanne M. Gorman, Senior
Assistant Attorney General, were on brief, for appellants.
October 15, 2002
LYNCH, Circuit Judge. Plaintiffs suffer from acquired
brain disorders and have the option to receive medical care for
that condition under the Medicaid program. They would prefer to
receive those services in a home care setting through a model
program New Hampshire has established under a Medicaid waiver
approved by the Secretary of Health and Human Services. 42 U.S.C.
§ 1396n(c) (2000). The difficulty is that there are more people
who want to be in the model program than there is room in the
program.
The patients sued, on behalf of a class, relying on
Medicaid statutory language, id. § 1396n(c)(10), and arguing that
if New Hampshire set up a model program at all, Congress required
that the waiver program have at least as many slots as the number
of applicants, up to a limit of 200. They also argued that New
Hampshire did not fill even the available slots within a reasonable
time. Finally, they argued that the notices given to those on the
waiting list were inadequate.
The district court agreed that New Hampshire was mandated
by the Medicaid statute to create more slots in its model program
and also that notice was inadequate. It did not address the second
issue. We reverse the district court's ruling on the first issue
and remand the other two issues, vacating the notice ruling and the
injunction.
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I.
Bonnie Bryson and Claire Shepardson have acquired brain
disorders (ABDs), which manifest before age sixty, are neither
congenital nor caused by birth trauma, and present "a severe and
life-long disabling condition which significantly impairs a
person's ability to function in society." N.H. Code Admin. R. Ann.
the plaintiff class they represent are being treated in a variety
of settings, from nursing homes to psychiatric hospitals to private
homes.1
Medicaid is an optional plan under which the federal
government, through the states, partially funds medical assistance
to needy individuals. See § 1396; Wilder v. Va. Hosp. Ass'n, 496
U.S. 498, 502 (1990). Not everyone is eligible for Medicaid-funded
treatment; to be eligible, an individual must have limited
resources and must fit into an eligibility category. For disabled
adults, the most common route to eligibility is receiving
Supplemental Security Income (SSI) on the basis of disability. See
§ 1396a(a)(10)(i)(II). Some states, including New Hampshire, also
elect to cover some medically needy individuals who are not poor
1
While the waiver program under § 1396n(c) is designed for
individuals who "require the level of care provided in a hospital
or nursing facility or intermediate care facility for the mentally
retarded," § 1396n(c)(1), some individuals who would be eligible
for the waiver program, including members of the plaintiff class,
are currently in private homes, covered either by private insurance
or personal funds. J. Perkins & R.T. Boyle, Addressing Long Waits
for Home and Community-Based Care Through Medicaid and the ADA, 45
St. Louis U. L.J. 117, 117 (2001) (describing individual cases).
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enough to be covered by SSI. J. Perkins, Medicaid: Past Successes
and Future Challenges, 12 Health Matrix 7, 12 n.21 (2002); see
§ 1396a(a)(10)(C).
In 1993, New Hampshire2 requested federal approval to
provide home and community-based services for individuals with ABDs
under the Medicaid waiver provisions. Section 1915(c) of the Social
Security Act, 42 U.S.C. § 1396n(c), permits states to include in
their Medicaid plans non-medical services, such as case management,
habilitation services, and respite care. Id. § 1396n(c)(4)(B).
States must apply for a waiver and be approved in order to include
such services in their Medicaid plans. Id. § 1396n(c)(1). Programs
approved under this subsection are waived from many Medicaid
strictures, id. § 1396n(c)(3), such as the requirements that
programs be in place statewide, see id. § 1396a(a)(1), and that
medical assistance be made available to all individuals equally, see
id. § 1396a(a)(10)(B). Waivers are initially approved for three
years and may be re-approved for five-year periods. Id.
§ 1396n(c)(1). The waiver program is designed to allow states to
experiment with methods of care, or to provide care on a targeted
basis, without adhering to the strict mandates of the Medicaid
system.
2
The defendants in this case are Donald Shumway, Commissioner
of the New Hampshire Department of Health and Human Services, which
applied for the Medicaid waiver, and Susan Fox, Director of
Developmental Services, which administers the waiver program. We
will refer to the two defendants collectively as "New Hampshire."
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There are three primary types of home and community-based
waivers. The first type, at issue here, concerns the treatment of
individuals who would otherwise be treated in an institutional
setting such as a hospital or nursing home. See id. § 1396n(c); 42
C.F.R. §§ 440.180, 441.300-.302 (2002). The second type is for
individuals over sixty-five who would otherwise be in a nursing
home. See § 1396n(d). The third type targets children under age
five who have AIDS or are born dependent on drugs. See id.
§ 1396n(e). There are currently about 240 home and community-based
waiver programs nationwide. J. Perkins & R.T. Boyle, Addressing
Long Waits for Home and Community-Based Care Through Medicaid and
the ADA, 45 St. Louis U. L.J. 117, 126 (2001).
To participate in the waiver program, states must apply
to the federal Centers for Medicaid and Medicare Services (CMS).
42 C.F.R. § 430.25(e). The Administrator of CMS has the authority
to approve or deny requests, but must consult with the Secretary of
Health and Human Services (HHS) before denying a request. Id.
§ 430.25(f)(2)(ii).
In theory, the waiver plans are expenditure-neutral; the
average estimated per capita expenditure under the waiver plans must
not be more than the average estimated expenditure absent the waiver
program. § 1396n(c)(2)(D). In practice, the waiver programs may
be costly to the states, because even though the individuals served
by the waiver plan are no longer being served by nursing homes or
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other care facilities, other patients may take those nursing home
spots. Many patients not currently being served under Medicaid may
also apply for the waiver program. See Perkins & Boyle, supra, at
119. The states thus have a financial incentive to keep their
waiver programs small, or at least, to begin with small programs and
grow them incrementally.
New Hampshire applied for a model waiver, which differs
from regular waivers primarily in that model waivers, by HHS
regulation, may not serve more than 200 individuals at any one time.
42 C.F.R. § 441.305(b)(1). New Hampshire's model waiver request,
however, proposed to serve a far smaller number of individuals than
the 200 person maximum. The original waiver request proposed that
15 individuals be served in the first year (1993 - 1994), 26 in the
second year, and 37 in the third year. In 1996, New Hampshire
requested and HHS approved an amendment to the waiver to accommodate
74 individuals in the third year of the program instead of 37. The
State also requested a renewal of the waiver for five more years,
from 1996 through 2001; HHS approved this request in 1997. New
Hampshire initially requested funding for only 74 slots for each of
the five years of the waiver renewal, but in 1998 it requested, and
HHS approved, an amendment to the renewal, such that the program
would serve 77 individuals in the fifth year, 81 in the sixth year,
85 in the seventh year, and 89 in the eighth year. In August 2001,
New Hampshire requested an extension for the waiver, which HHS
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granted through January 2002. New Hampshire has since applied for
and was granted a five-year renewal of the waiver program, with an
increasing number of slots from 117 up to 130 over the five-year
period.
There have always been more applicants for home and
community-based ABD services in New Hampshire than there have been
available slots. The waiting list has ranged from 25 people in the
first year to a height of 87 in the 1997-1998 year.
It is undisputed that up until recently, some of the
approved waiver slots have not been filled. The parties differ as
to how many slots have historically gone unused, for how long and
for what reasons; furthermore, there is no agreement as to whether
there continues to be any unused waiver slots.
Bryson, Shepardson, and the plaintiff class have applied
for community-based services under the New Hampshire Home and
Community Based Waiver for Persons with Acquired Brain Disorders.
They have not received these services; New Hampshire instead has
placed them on a waiting list, where they remain.
II.
On December 2, 1999, Bryson and Shepardson sued the two
New Hampshire state officials, on behalf of themselves and all
others similarly situated, seeking injunctive and declaratory relief
pursuant to 42 U.S.C. § 1983. The suit challenged the defendants'
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failure to provide home and community-based services under the model
waiver program to the plaintiff class afflicted with ABD.
The complaint pled seven distinct counts; only two counts
are relevant to this appeal.3 The first, Count II of the complaint,
alleged that under federal law, Medicaid services must be furnished
with "reasonable promptness" under § 1396a(a)(8) and that the New
Hampshire defendants were in violation of this provision. The
second, Count VII of the complaint, alleged that federal law
requires that the plaintiffs receive notice and the opportunity for
a hearing when they have been placed on a waiting list, id.
§ 1396a(a)(3), and that New Hampshire has not provided such notice.
On October 23, 2001, the District Court for the District
of New Hampshire granted the plaintiffs' motion for summary judgment
as to Count VII, the notice allegation. Bryson v. Shumway, 117 F.
Supp. 2d 78, 81 (D.N.H. 2001). The court found that § 1396a(a)(3),
which requires an opportunity for a fair hearing when a "claim for
medical assistance . . . is denied," is triggered when applicants
are placed on the waiting list for waiver services. Id. at 98.
3
The plaintiffs' other five counts are as follows: Count I
alleged that the waiver program was insufficiently funded, relying
on §§ 1396a(a)(17), (19), and regulatory provisions; Count III
alleged a violation of the integration mandates of Title II of the
Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132, and
section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a) (2000);
Count IV alleged disability-based discrimination in violation of
Title II of the ADA and section 504; Count V alleged that the
standards by which the ABD waiver program was operated constituted
a due process violation; and Count VI restated the notice complaint
of Count VII as a due process violation.
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On December 10, 2001, the district court granted judgment
in favor of the plaintiffs on Count II, ruling that the
"[d]efendants have violated the reasonable promptness requirement
of the Medicaid Act" and requiring that they "request enough waiver
slots to serve the plaintiff class and to provide Medicaid funded
waiver services to Plaintiff class in a period not to exceed 12
months, absent extraordinary circumstances." Bryson v. Shumway, No.
99-558-M, at 5 (D.N.H. Dec. 10, 2001). This appeal followed.
III.
We review grants of summary judgment "de novo, construing
the record in the light most favorable to the nonmovant and
resolving all reasonable inferences in that party's favor."
Rochester Ford Sales, Inc. v. Ford Motor Co., 287 F.3d 32, 38 (1st
Cir. 2002). We review a district court's interpretation of a
statute de novo. Riva v. Massachusetts, 61 F.3d 1003, 1007 (1st
Cir. 1995).
Other rules govern the issue of statutory interpretation.
If the meaning of a statute is clear, we enforce that meaning.
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.
837, 842-43 (1984). Here, the statute in question has been
interpreted by a federal administrative agency in a rule promulgated
through notice and comment. That interpretation is governed by the
second-level Chevron standard: if Congress has not spoken to the
question at issue, we may not substitute our own reading of the
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statute unless the agency's interpretation is unreasonable. Id. at
843-44.
A. Reasonable Promptness
The statute, 42 U.S.C. § 1396a(a)(8), requires that
"medical assistance . . . shall be furnished with reasonable
promptness to all eligible individuals." The plaintiffs contend
that New Hampshire's operation of the ABD waiver program violates
§ 1396a(a)(8) by failing to furnish the waiver services with
"reasonable promptness." They seek to enforce this provision
through 42 U.S.C. § 1983. The plaintiffs make alternative arguments
for why they believe that New Hampshire has failed to meet its
duties under § 1396a(a)(8).
1. Requirement of 200 Waiver Slots
Plaintiffs first argue that New Hampshire is required by
statute to request a waiver to accommodate at least 200 individuals.
They rely on statutory language governing waiver programs, which
states:
(c) Waiver respecting medical assistance requirement in
State plan: scope, etc.; "habilitation services" defined;
imposition of certain regulatory limits prohibited;
computation of expenditures for certain disabled
patients; coordinated services; substitution of
participants
. . .
(10) The Secretary shall not limit to fewer than 200 the
number of individuals in the State who may receive home
and community-based services under a waiver under this
subsection.
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§ 1396n(c)(10). Plaintiffs interpret this statute to require that
states requesting waivers design plans that accommodate at least 200
individuals, arguing that is the plain meaning of the statute itself
and the thrust of the surrounding legislative history. The core
statutory argument is that because the waiver programs must receive
the Secretary's approval, this 200-person minimum should be read as
a limit on both the state applying for the waiver as well as on the
Secretary. Plaintiffs argue that the states are restricted from
offering less than 200 slots and the Secretary is restricted from
approving less than 200 slots.
a. Plain Reading of the Statute
We turn first to the language of the statute itself. If
a statute is unambiguous, we use neither legislative history,4 Dep't
4
At times, though, we use legislative history as a check to
confirm the correctness of our interpretation in very complex areas
of regulation. Cablevision of Boston, Inc. v. Pub. Improvement
Comm'n, 184 F.3d 88, 101 (1st Cir. 1999) ("[A] court should go
beyond the literal language of a statute if reliance on that
language would defeat the plain purpose of the statute . . . .").
Even were we to rely on the legislative history of § 1396n(c)(10),
as plaintiffs request, it would not require the conclusion that
§ 1396n(c)(10) was meant to mandate that waiver plans serve at
least 200 individuals.
Paragraph 1396n(c)(10), as originally written, stated that
"[n]o waiver under this subsection shall limit by an amount less
than 200 the number of individuals who may receive home and
community-based services." Omnibus Budget Reconciliation Act of
1987, Pub. L. No. 100-203, § 4118(b), 101 Stat. 1330-1, 1330-155.
The paragraph was amended to the current language the next year.
See Medicare Catastrophic Coverage Act of 1988, Pub. L. No. 100-
360, § 411(k)(10)(A), 102 Stat. 683, 794. The plaintiffs have
submitted no legislative history with regard to this change, and
there appears to be little discussion in the relevant committee
reports. See H.R. Rep. No. 100-105(I) (1987), reprinted in 1988
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of Hous. & Urban Dev. v. Rucker, 122 S. Ct. 1230, 1234 (2002), nor
administrative agency interpretation, Chevron, 467 U.S. at 842-43.
Neither the language nor the structure of § 1396n(c)(10)
supports plaintiffs' reading; the statute does not require
applications for state waiver programs to serve at least 200
individuals. The language of the paragraph, by its very terms,
governs only the Secretary's ability to deny approval of waiver
plans. See § 1396n(c)(10) ("The Secretary shall not limit
. . . ."). The statute does not purport to govern the behavior of
the states or the contents of the waiver plans themselves.
Moreover, the paragraph does not, by its terms, prevent the
Secretary from approving plans unless there are a certain number of
slots. It only governs the Secretary's actions when she or he is
acting to limit the content of waiver plans as to the number of
individuals to be served.
Comparing the language of § 1396n(c)(10) to the remainder
of § 1396n(c), which governs waiver services, makes this reading
U.S.C.C.A.N. 803; H.R. Rep. No. 100-105(II) (1987), reprinted in
1988 U.S.C.C.A.N. 857; H.R. Conf. Rep. No. 100-661, at 269 (1988),
reprinted in 1988 U.S.C.C.A.N. 923, 1047.
The only legislative history the plaintiffs cite, that of the
1987 statute, see H.R. Conf. Rep. No. 100-495, at 760 (1987),
reprinted in 1987 U.S.C.C.A.N. 2313-1245, 2313-1506, is inapposite.
All we are left with is the simple fact that Congress altered the
language of paragraph 10 by striking language that supported the
plaintiffs' contentions. Even were we to construe the legislative
history, then, we would find that if it has any effect at all, it
is to bolster the interpretation that the statute in its current
form governs only the actions of the Secretary.
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even more compelling. Some provisions of subsection (c) directly
govern the content of the waiver plans; these clearly state their
purpose in limiting the content of the plans directly. See id.
§ 1396n(c)(2) ("A waiver may not be granted under this subsection
unless . . . ."). By contrast, § 1396n(c)(10) does not contain such
language limiting the content of the plans themselves.
Other provisions of subsection (c), like (c)(10), operate
to prevent the Secretary from unduly restraining the state plans.5
For instance, the Secretary may not restrict "the number of hours
or days of respite care" provided under a waiver plan, id.
§ 1396n(c)(4), nor may he require that the waiver plan spend no more
money than the approved estimates as a condition of waiver approval,
id. § 1396n(c)(6). These provisions merely prevent the Secretary
from imposing conditions onto the waiver plans. Similarly,
§ 1396n(c)(10) restricts the Secretary's ability to limit the size
and funding of waiver plans. Read together, these provisions, like
paragraph 10, ensure that the states will be able to receive funding
for waiver plans up to a certain size and free from restrictions on
how much care is provided to each individual. They do not dictate
to the states the content of their waiver applications.
5
This is also consistent with the language of § 1396n(c), the
title of which includes such subjects as "imposition of certain
regulatory limits prohibited," obviously a reference to paragraph
10.
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Finally, it is evident that § 1396n(c) contemplates state
waiver plans with definite limits on the number of individuals
served. Paragraph 9 permits state plans to replace individuals who
die or become ineligible with other individuals "[i]n the case of
any waiver under this subsection which contains a limit on the
number of individuals who shall receive home or community-based
services." Id. § 1396n(c)(9). State plans, then, certainly have
the right to include a limit on the number of waiver slots they
request.6
This statute, § 1396n(c)(10), is most plausibly read as
limiting only the ability of the Secretary to impose such
restrictions, and not the ability of the states to propose or the
Secretary to approve waiver plans serving fewer than 200
individuals.
b. Administrative Deference
Even if there were doubt as to the plain meaning of
§ 1396n(c)(10) on its face, the administrative interpretation of HHS
does not support the plaintiffs' position. If Congress has not
spoken on the precise question at issue, we respect the statutory
6
Our reading is also most consistent with another paragraph
of subsection (c), which plainly permits states to set limits on
the number of individuals served. Section 1396n(c)(4)(A) permits
waiver plans to limit the individuals served to those for whom the
state has determined that the amount of medical assistance under
the waiver will not exceed the amount that would be provided if the
waiver did not apply. This paragraph does not reference
§ 1396n(c)(10), nor does it restrict a state's ability to limit the
number of individuals served by waiver plans.
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interpretation of the federal administrative agency given that
interpretative task, unless the interpretation is unreasonable.
Chevron, 467 U.S. at 842-44.
Congress has authorized HHS to interpret the statutes in
question and implement regulations in this area. 42 U.S.C. § 1302.
HHS has interpreted § 1396n(c)(10) through a regulation governing
model waivers, which decrees that the number of individuals served
under a model waiver program "may not exceed 200 recipients." 42
C.F.R. § 441.305(b). It is possible to read the regulation, which
permits no more than 200 recipients under a model waiver program,
and § 1396n(c)(10), which plaintiffs urge permits no fewer than 200
under any waiver program, to result in a scheme in which all model
programs must serve exactly 200 individuals. Nonetheless, that is
not the most likely reading. The regulation's use of the term
"exceed" indicates that HHS contemplates model waiver programs that
serve fewer than 200 individuals.
This conclusion is bolstered by the comments accompanying
the announcement of the final rule. HHS concluded that while
§ 1396n(c)(10) "could, arguably, be read to limit the actual number
of individuals who may receive model waiver services to no less than
200, . . . we believe that this reading is unsupportable." Medicaid
Program; Home and Community-Based Services and Respiratory Care for
Ventilator-Dependant Individuals, 59 Fed. Reg. 37,702, 37,711 (July
25, 1994).
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HHS's interpretation of this statute is certainly not
unreasonable. HHS reads § 1396n(c)(10) as allowing states to choose
the size of their waiver programs, rather than requiring that the
waiver programs be at least a certain size. This interpretation is
consistent with the agency's longstanding interpretation of the
waiver program. See Medicaid Program; Home and Community-Based
Services, 50 Fed. Reg. 10,013, 10,021 (Mar. 13, 1985) (stating that
HHS "believes that Congress intended to give the States maximum
flexibility in operating their waiver programs").
The policy reasons are obvious: states, and particularly
small states, may be discouraged from applying for model waiver
programs at all if the choices are a program serving 200 individuals
at the partial expense of the state, or not creating a model program
at all and providing only the standard Medicaid services. Rather,
Congress wished to encourage the states to pursue waiver programs,
so that the states would create the types of model programs
contemplated. Sympathetic as these plaintiffs are, the long-term
logic of their argument may lead to the constriction, not the
expansion, of these types of alternative programs. In sum, even
were we to find this statute ambiguous, the interpretation offered
by HHS is reasonable, given the structure and language of the
statute.
The Secretary has also interpreted this statute in a
different context. He has approved waiver plans that anticipate
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serving fewer than 200 individuals, such as the plan at issue here.
Because the approval process did not utilize formal procedures, it
may not be entitled to Chevron deference, see Christensen v. Harris
County, 529 U.S. 576, 587 (2000), but there remains the deference
owed agencies due to their "specialized experience." Skidmore v.
Swift & Co., 323 U.S. 134, 139 (1944); see United States v. Mead
Corp., 533 U.S. 218, 234-39 (2001) (applying Skidmore deference).
The Secretary has interpreted the statute to permit waiver plans
with fewer than 200 slots, and we defer to his expertise in the
construction and purpose of the statute.
2. Unfilled Waiver Slots
The district court rested its finding for the plaintiffs
on the ground we have rejected: that the state waiver plan must
serve at least 200 individuals. Bryson, No. 99-558-M, at 4.
Plaintiffs have, however, asserted a separate and distinct argument
alleging a violation of the "reasonable promptness" provision of
§ 1396a(a)(8). They argue that New Hampshire has failed to fill
even the number of individual waiver slots it has requested, and so
the plaintiff class members have not been furnished medical
assistance "with reasonable promptness." We first consider whether
there is an actionable claim.
a. § 1983 Cause of Action
There is liability against persons who act under color of
law to deprive individuals of "any rights, privileges, or immunities
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secured by the Constitution and laws" of the United States under 42
U.S.C. § 1983. This provision creates a cause of action for federal
statutory as well as constitutional rights, Maine v. Thiboutot, 448
U.S. 1, 4-8 (1980), including, in some circumstances, violations of
the Medicaid Act, Wilder, 496 U.S. at 524.
Not all violations of federal law result in a cause of
action under § 1983. "A plaintiff must assert the violation of a
federal right, not merely the violation of federal law." Blessing
v. Freestone, 520 U.S. 329, 340 (1997) (emphasis in original).
Moreover, a federal right must be "unambiguously conferred" in order
to support a cause of action under § 1983. Gonzaga Univ. v. Doe,
122 S. Ct. 2268, 2275 (2002).
Blessing set out a three-part test for guidance in
determining whether a statutory provision confers an enforceable
federal right. First, Congress must have intended that the
provision benefit the plaintiff. Second, the right must not be
"vague and amorphous." Third, the statute must unambiguously impose
a binding obligation on the states. Blessing, 520 U.S. at 340-41.
Ultimately, of course, this is an issue of congressional intent, and
the three tests are just a guide. Gonzaga, 122 S. Ct. at 2279
(Breyer, J., concurring). The statute satisfies the three tests as
to claims about unfilled waiver slots that are part of an approved
state Medicaid plan.
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First, the statute, on its face, does intend to benefit
the plaintiffs. Section 1396a(a)(8) requires that state Medicaid
plans provide that medical assistance "shall be furnished with
reasonable promptness to all eligible individuals." This paragraph
is a part of the litany of procedural and substantive protections
which state Medicaid plans must provide, such as the opportunity for
a hearing, see § 1396a(a)(3), and safeguards against the disclosure
of private information, see id. § 1396a(a)(7). By its terms, it
benefits "eligible individuals." Id. § 1396a(a)(8). Those patients
who are on the waiting list and for whom slots are available7 are,
we think, "eligible" under the statute such that they are entitled
to reasonable promptness. See Boulet v. Celluci, 107 F. Supp. 2d
61, 77 (D. Mass. 2000) ("The cap on waiver services is simply a
constraint on eligibility."). The first prong of Blessing has been
met.
Second, the right conferred is not vague or amorphous.
"A statute is not impermissibly vague simply because it requires
judicial inquiry into 'reasonableness.'" Albiston v. Maine Comm'r
of Human Servs., 7 F.3d 258, 267 (1st Cir. 1993) (construing the
"reasonable promptness" provision of 42 U.S.C. § 602(a)(10)).
7
The parties advise us that it is not an easy matter to
determine the patients on the waiting list for whom slots are
available. It is not a matter, necessarily, of who is next on the
list. The slots opening up may be in one geographic location; a
particular patient may be in another. These are issues that can be
considered on remand.
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Common law courts have reviewed actions for reasonableness since
time immemorial. See, e.g., 1 W. Blackstone, Commentaries *77
(analyzing the reasonableness of customs).
Finally, § 1396a(a)(8) does unambiguously bind the states.
The subsection mandates that state plans "must" provide that medical
assistance "shall" be provided with reasonable promptness. These
are not mere guidelines, but rather requirements which states must
meet under the Medicaid system.
One other circuit court has found that the reasonable
promptness provision of § 1396a(a)(8) provides a cause of action
under § 1983. See Doe v. Chiles, 136 F.3d 709, 719 (11th Cir.
1998); cf. Cospito v. Heckler, 742 F.2d 72, 81 n.14 (3rd Cir. 1984)
(interpreting § 1396a(a)(8) in a procedural due process context and
finding that "eligible patients have a legitimate claim of
entitlement to be able to avail themselves of Medicaid benefits").
While this Court has never before addressed this precise question,
we did uphold a § 1983 cause of action under the "reasonable
promptness" provision of the Social Security Act. Albiston, 7 F.3d
at 264 (finding that 42 U.S.C. § 602(a)(10) provides "reasonably
clear, judicially enforceable obligations directly on the
participating States").
The strictures of § 1396a(a)(8) should apply with no less
force to opt-in plans such as the waiver program. Once the waiver
plan is created and approved, it becomes part of the state plan and
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therefore subject to federal law; the waiver plans must meet all
requirements not expressly waived. See Doe, 136 F.3d at 714-15
(upholding a § 1983 cause of action under § 1396a(a)(8) as applied
to an optional program).
In sum, we find that there is a § 1983 cause of action
arising from the "reasonable promptness" provision of 42 U.S.C.
§ 1396a(a)(8) under the state model waiver plan as approved.
b. Factual Development
It is not clear to us, though, whether there is a live
controversy on this issue or, if so, what the dimensions of it are.
No facts have been developed on this point. New Hampshire claims
that there are no longer any unfilled waiver slots, while the
plaintiffs believe that the issue may continue to be a live one.
Even if there are currently unfilled waiver slots, we know nothing
about the history of each waiver slot and the process and procedure
of replacing individuals who held those slots.
When an individual ceases to use the waiver plan services,
there is necessarily a time gap while an individual on the waiting
list is chosen to take the unfilled slot and while services are made
available. Because of that lag in time, the fact that some slots
are unfilled may be consistent with New Hampshire diligently filling
the empty slots with reasonable promptness. It may also indicate
that New Hampshire is not being reasonably prompt in its provision
of medical assistance.
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The parties have stipulated that absent extraordinary
circumstances, ABD waiver services can be implemented within one
year from the time that an individual is found to be eligible. More
information is necessary in order to ascertain whether or not the
guarantee of reasonable promptness has been satisfied. We remand
this aspect of plaintiff's claim to the district court.
B. Notice
42 U.S.C. § 1396a(a)(3) requires that state Medicaid plans
"provide for granting an opportunity for a fair hearing before the
State agency to any individual whose claim for medical assistance
under the plan is denied or is not acted upon with reasonable
promptness." See also 42 C.F.R. § 431.220(a)(1) (mirroring the
language of § 1396a(a)(3)). State plans must also notify applicants
of the right to obtain a hearing and the method of obtaining one
when the applicant first applies to Medicaid or when any action is
taken which affects the applicant's claim. 42 C.F.R. § 431.206(b)-
(c). The specific contents of the notice are governed by § 431.210.
Overall, HHS has made clear that "[t]he hearing system must meet the
due process standards set forth by Goldberg v. Kelly, 397 U.S. 254
(1970)." § 431.205(d). The defendants do not contest that § 1983
may be used to enforce these notice provisions, so we assume that
it may.
Plaintiffs allege that New Hampshire has violated their
right to notice by failing to notify applicants of their right to
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a hearing when they were notified of their eligibility and placed
on a waiting list. The district court agreed, granting summary
judgment to the plaintiffs on this count and holding that "a finding
of eligibility coupled with an indefinite deferral of services
constitutes a denial of services," thereby triggering the notice
requirement under § 1396a(a)(3). Bryson, 177 F. Supp. 2d at 97.
While applicants were notified of their placement on the waiting
list, the notifications often did not contain information concerning
the right to request a hearing or the method of obtaining one.
As the district court noted, its ruling on notice depended
to a certain extent on its view of whether New Hampshire had to
create slots for all applicants. Id. We have negated that view.
There is also a significant question about the precise purpose of
a hearing under the approved plan. It is one thing to have a
hearing if New Hampshire is obligated to create slots for up to 200
individuals, as the district court ruled. It is another to
contemplate a hearing if there are no available slots and there is
no requirement to give the first available slot to the next person
on the list. It is yet another thing if there is an available slot
and the sole issue, applying pre-set criteria for priority status,
is who on the waiting list should be placed in that slot.
New Hampshire has said that it has since modified its
system of eligibility notice to conform to the statutory and
regulatory requirements. There is thus a danger that the issue of
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notice is not a live one. See Powell v. McCormack, 395 U.S. 486,
495-97 (1969). A moot issue does not meet the "case" or
"controversy" requirement of the Constitution. U.S. Const. art.
III, § 2; Liner v. Jafco, Inc., 375 U.S. 301, 306 n.3 (1964).
Mootness must be considered even if ignored by the parties
themselves.8 St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S.
531, 537 (1978).
Given the context of New Hampshire's recent claim that it
has modified its notification procedure and is now in accord with
statutory and constitutional requirements, we think it better to
vacate the district court's ruling. We remand this issue to the
district court for further factual findings. If New Hampshire's
current notice system is adequate, then this count should be
dismissed. We are optimistic that if further notice issues remain,
the parties will work out the matter by agreement.
IV.
For the reasons stated above, we reverse the district
court's ruling that the waiver plan must include 200 slots, vacate
8
If mootness evolves upon appeal, "the judgment below
normally is vacated with directions to dismiss the complaint."
City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 288 n.9
(1982). Mootness may evolve during the course of a case for a
variety of reasons, including the provision of relief by the
defendant. See, e.g., Honig v. Students of the Cal. Sch. for the
Blind, 471 U.S. 148 (1985); Deposit Guar. Nat'l Bank v. Roper, 445
U.S. 326 (1980); Commissioner v. Shapiro, 424 U.S. 614, 622 n.7
(1976).
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the notice ruling and the injunction, and remand the other two
issues.
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