Mandy R. Ex Rel. Mr. & Mrs. R. v. Owens

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
September 21, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
M ANDY R., by and through her
parents and guardians, M r. and M rs.
R.; LISA W ., by and through her
parents and next friends, M r. and M rs.
W .; STEPH ANIE F., by and through
her parents and next friends, M r. and
M rs. F.,
Plaintiffs,
M ARIAN L., by and through her
parent and guardian, M s. L.; JODI F.,
by and through her parents and next
friends, M r. and M rs. F.; and C ATHY
G., by and through her parent and
guardian, Russell G .,
Plaintiffs-Intervenors,
and
C OLO RA D O A SSO CIA TIO N OF
CO M M UN ITY CENTERED
BO ARD S, No. 05-1148
Plaintiff-Intervenor - A ppellant,
v.
BILL OW ENS, Governor of the State
of Colorado; M ARV A HAM M ONS,
Executive Director of the Colorado
Department of Human Services;
KAREN REINERTSO N, Executive
Director of the Colorado Department
of Health Care Policy and Financing;
C OLO RA D O D EPA RTM EN T OF
H U MA N SER VIC ES; C OLO RADO
DEPARTM ENT OF HEALTH CARE
PO LIC Y A N D FIN A N CIN G ,
Defendants - Appellees.
M ANDY R., by and through her
parents and guardians, M r. and M rs.
R.; STEPH ANIE F., by and through
her parents and next friends, M r. and
M rs. F.,
Plaintiffs - Appellants,
No. 05-1150
JO DI F., by and through her parents
and next friends, M r. and M rs. F.;
M ARIAN L., by and through her
parent and guardian, M s. L.; C ATHY
G., by and through her parent and
guardian, Russell G .,
Plaintiffs-Intervenors -
Appellants,
and
LISA W ., by and through her parents
and next friends, M r. and M rs. W .,
Plaintiff,
C OLO RA D O A SSO CIA TIO N OF
CO M M UN ITY CENTERED
BO ARD S,
Plaintiff-Intervenor,
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v.
BILL OW ENS, Governor of the State
of Colorado; M ARV A HAM M ONS,
Executive Director of the Colorado
Department of Human Services;
KAREN REINERTSO N, Executive
Director of the Colorado Department
of Health Care Policy and Financing;
C OLO RA D O D EPA RTM EN T OF
H U MA N SER VIC ES; C OLO RADO
DEPARTM ENT OF HEALTH CARE
PO LIC Y A N D FIN A N CIN G ,
Defendants - Appellees.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF COLORADO
(D.C. NO . 00-M -1609)
R. Eric Solem, of Solem, M ack & Steinhoff, P.C., Englewood, Colorado for
Appellants.
Richard W estfall, of Hale Friesen, LLP, Denver, Colorado, for Appellant
Colorado Association of Community Centered Boards.
W ade S. Livingston, First Assistant Attorney General, Human Services Unit of
the State Services Section, Denver, Colorado (Attorney General John W . Suthers
with him on the brief), for Appellees.
Before M U RPH Y, M cCO NNELL, and BALDOCK , Circuit Judges.
M cCO NNELL, Circuit Judge.
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Colorado has a waiting list of hundreds of developmentally disabled
persons who need but do not receive M edicaid-funded services. Six such persons
and an association of providers brought this suit under 42 U.S.C. §1983, claiming
that the State of Colorado has failed to comply with three requirements of the
M edicaid Act, namely reasonable promptness, comparability, and sufficient
payments. After a bench trial, the district court entered judgment for the
Defendants. W e hold that the reasonable promptness and comparability
requirements do not require the State to provide services, and that neither
recipients nor providers have a private right to enforce the sufficient payments
requirement through §1983. W e therefore AFFIRM .
I. Factual and Procedural Background
This suit was brought in August 2000 by six persons, through their parents
and guardians, against the governor of Colorado and two other state officials.
The six individual plaintiffs are developmentally disabled persons who are on
waiting lists for comprehensive residential services. These services are provided
by public and private entities, which are paid by the State, which is in turn
reimbursed for about half of the costs by the federal government through
M edicaid. See 42 U.S.C. § 1396a. The State offers two kinds of M edicaid-
funded services relevant to this suit. An Intermediate Care Facility for the
M entally Retarded (ICF/M R) is an institutional setting, usually large, and is
“generally reserved for persons with extreme needs.” Appellees’ A nswer Br. 5.
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Three such facilities exist in Colorado, and they serve about 86 persons. Two of
these facilities are managed by the State, and one is operated by a private
organization. The State also provides Home and Community-Based Services
(HCBS). In an HCBS setting, developmentally disabled persons live “in either a
small host home (serving 1 to 3 people) or slightly larger group homes (serving 4
to 8 people).” Id. at 9. Over the last quarter-century the State has shifted its
emphasis from ICFs/M R to HCBS, which are less expensive and less isolating.
Home and Community-Based Services are “waiver programs,” which means
that the State may offer them only after securing a waiver of certain M edicaid
requirements from the federal government. They are also capped by the state’s
waiver application wherein a state must indicate the maximum number of
participants it will accept in its waiver program. At the time of trial nearly 3,800
persons received HCB services. Another 733 persons wished to receive HCB
services, but the services were unavailable. Roughly half of these 733 persons
received no state services of any kind for the developmentally disabled. At the
time of trial, only 21 persons were seeking ICF/M R services. The plaintiffs
sought ICF/M R services, and each contended that the needed services w ere
unavailable because the State refused to comply with federal law.
In October 2000, the Colorado Association of Community Centered Boards
(CACCB) moved to intervene on the side of the plaintiffs. Community-centered
boards are HCBS providers offering housing and medical care to the
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developmentally disabled and receiving, in return, M edicaid payments from the
state.
Suing under 42 U.S.C. §1983, the plaintiffs and intervenor alleged
violations of the federal M edicaid Act, specifically that the State failed to provide
the developmentally disabled with comprehensive residential services that meet
the statutory requirements of reasonable promptness and comparability, which are
described below. The individual plaintiffs sought a declaratory judgment and an
injunction that would compel the state to meet the statute’s requirements, but they
did not and do not ask the courts to specify the way in which the State should
comply with the statute. The individual plaintiffs sought class certification on
behalf of all developmentally disabled persons in Colorado who remain on
waiting lists to receive comprehensive medical services. Although opposing class
certification, the CACCB generally supported the individual plaintiffs’ claim.
The CACCB also claimed that the State pays for M edicaid services for the
developmentally disabled at rates that are too low to meet the statutory
requirement of sufficient payments.
The district court denied class certification and, after a four-day trial,
entered judgment for the Defendants. The plaintiffs now appeal. 1
1
One individual plaintiff began receiving the needed services shortly before
trial. She does not appeal.
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II. Reasonable Promptness and Comparability
W e begin with the claim that the State has failed to comply with the
requirements of reasonable promptness and comparability. If a state chooses to
participate in M edicaid, it must submit a state plan for providing “medical
assistance.” 42 U.S.C. § 1396a(a). The M edicaid Act imposes a number of
conditions on a state plan, two of which are at issue in this case. The first is that
medical assistance “shall be furnished with reasonable promptness to all eligible
individuals.” Id. § 1396a(a)(8). The second, the comparability requirement, is
that the assistance any patient receives “shall not be less in amount, duration, or
scope than the medical assistance made available to any other such individual.”
Id. § 1396a(a)(10)(B)(i).
In addressing these claims, we assume that the individual plaintiffs may sue
to enforce their rights under subsections (8) and (10). Since the Supreme Court
clarified when a statute creates an enforceable private right in Gonzaga University
v. Doe, 536 U.S. 273 (2002), several circuit courts have considered whether one
or both of these subsections creates an enforceable private right. Each has
concluded that the provision in question does. See, e.g., Watson v. Weeks, 436
F.3d 1152, 1159 & n.8 (9th Cir. 2006) (following the five federal circuit courts
that have found a private right to sue for enforcement of § 1396a(a)(10), two of
which did so after Gonzaga); Sabree v. Richman, 367 F.3d 180, 192 (3d Cir.
2004) (finding that each provision created an enforceable private right). But see
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Sanders ex rel. Rayl v. Kan. Dep’t of Soc. and Rehab. Servs., 317 F. Supp. 2d
1233, 1250 (D. Kan. 2004) (concluding that subsection (8) does not create an
enforceable private right but finding it “a closer question” than for some
M edicaid provisions); M .A.C. v. Betit, 284 F. Supp. 2d 1298, 1307 (D. Utah 2003)
(concluding that subsection (8) does not create an enforceable private right). In
this case, the district court did not clearly decide whether this portion of the
statute creates a federal right enforceable under § 1983, but the parties have not
disputed the point. W e therefore assume without deciding that § 1983 gives the
plaintiffs a right of action to enforce subsections (8) and (10). See Burks v.
Lasker, 441 U.S. 471, 475-76 & n.5 (1979) (“The question whether a cause of
action exists is not a question of jurisdiction, and therefore may be assumed
without being decided.”).
On the merits, the plaintiffs’ reasonable promptness and comparability
claims are two ways of characterizing one problem: that the individual plaintiffs
are not receiving the comprehensive residential services they need. They are thus
(1) not receiving them promptly and (2) not receiving them to the extent that
others receive them. The outcome of both claims turns on the same question:
W hat is the “medical assistance” that the State must provide promptly and
equally?
The M edicaid Act defines “medical assistance” as “payment of part or all
of the cost of the [described] care and services.” 42 U.S.C. § 1396d(a). The
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statutory definition mentions payment for, but not provision of, services. In other
words, “the statutory reference to ‘assistance’ appears to have reference to
financial assistance rather than to actual medical services.” Bruggeman ex rel.
Bruggeman v. Blagojevich, 324 F.3d 906, 910 (7th Cir. 2003); see also Westside
M others v. Olszewski, 454 F.3d 532, 540 (6th Cir. 2006) (concluding that 42
U.S.C. §§ 1396a(a)(8) and (10) do not “require the State to provide medical
services directly” but rather require only financial assistance). 2 On its face, then,
the M edicaid Act requires any state participating in M edicaid to pay promptly and
evenhandedly for medical services w hen the state is presented w ith the bill. If
that is all the statute requires, then the plaintiffs have no claim: they are on a
waiting list for services, not a waiting list for payment for services.
The plaintiffs offer two reasons we should reject the natural reading of the
statute. The first is that the definition of “medical assistance,” w hen read in
context, requires the State to provide actual services and not merely to pay for
them. The plaintiffs point to five contextual clues that “medical assistance”
2
Some courts have suggested that there exists a circuit split on the question
of w hether “medical assistance” requires a state to provide actual services.
Sabree ex rel. Sabree v. Richman, 367 F.3d 180, 181 n.1 (3d Cir. 2004); Westside
M others, 454 F.3d at 540. The existence of such a split is not entirely clear. Tw o
circuits have held that “medical assistance” requires only financial assistance.
See Bruggeman, 324 F.3d at 910; Westside M others, 454 F.3d at 540. Another
circuit has reserved the question. Sabree, 367 F.3d at 181. W ithout expressly
addressing the issue, two other circuits appear to have treated the statute as
requiring the provision of actual services. Bryson v. Shumway, 308 F.3d 79, 81,
88-89 (1st Cir. 2002); Doe v. Chiles, 136 F.3d 709, 714, 717 (11th Cir. 1998).
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means actual services and not just financial payments. None of these clues,
however, is sufficiently convincing to depart from the statutory definition of
“medical assistance.”
First, the plaintiffs point to another provision in the M edicaid Act, 42
U.S.C. § 1396a(a)(2), which requires the State to “assure that the lack of adequate
funds from local sources will not result in lowering the amount, duration, scope or
quality of care and services available under the plan.” But this requirement
explicitly controls the method of “financial participation by the State.” Id.
(emphasis added). The State must ensure that the non-federal portion of an
eligible patient’s bill is paid, by picking up any slack from “local sources” of
funding, but this provision says nothing about providing the services themselves.
Second, the plaintiffs suggest that the comparability provision requires the
State to provide actual services because the “medical assistance” must be the
same “in amount, duration, or scope.” 42 U.S.C. § 1396a(a)(10)(B)(i). The
words of this provision, however, can apply to the payment for services no less
logically than to the provision of services. It is coherent, and consistent with the
text of the comparability provision, to require states to pay for services on a
comparable basis— in the same amounts, for the same duration, and in the same
scope. Accordingly, this provision does not indicate w hich meaning we should
give to “medical assistance,” and it thus gives us no reason to depart from the
general statutory definition for the M edicaid Act.
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Third, the plaintiffs suggest that the State must provide services whenever
necessary to assure that “care and services will be provided[] in a manner
consistent with simplicity of administration and the best interests of the
recipients.” 42 U.S.C. § 1396a(a)(19). The plaintiffs give scant attention to this
argument, and for good reason. In Bruggeman the Seventh Circuit held that this
provision was “insufficiently definite to be justiciable, and in addition cannot be
interpreted to create a private right of action.” Bruggeman, 324 F.3d at 911
(citing three other circuits that have reached the same conclusion, under the
M edicaid Act or under § 1983). W e need not reach the private-right-of-action
question, which is not before us, to determine that this provision does not require
the State to provide actual services. If this provision implicitly required the State
to provide services, because it is something in the “best interests of the
recipients,” we see no logical end. W ithout a logical stopping point or anything
more definite than “best interests,” we do not read this provision to require the
State to provide actual services.
Fourth, the plaintiffs point to the plan the State filed with the federal
government, which promised to provide ICFs/M R with “No Limitations.”
Colorado State M edicaid Plan, R. Vol. IV, at 755. This phrase appears in the
state plan on a page titled “Amount, Duration and Scope of M edical and Remedial
Care and Services Provided to the Categorically Needy.” Id. A series of services
are mentioned, from ICFs/M R to nurse-midwife services, and for each the
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governm ent checked boxes indicating that the services are provided with “No
Limitations,” are provided “With Limitations,” or are “Not Provided.” Id. As the
director of the State’s M edical Assistance Office explained, “limitations” are
limits on payments to otherwise eligible patients, such as the limit that the State
will pay for only 45 days of in-patient psychiatric services in a calendar year. R.
Vol. II, at 350. If the State wishes to enforce such a limit on the provided
services it will pay for, it must announce the limit in the state plan. By choosing
“No Limitations,” the State was abjuring limits such as the length of ICF/M R
services for which it would pay, but there is no indication that by checking this
box the State promised to build, staff, and maintain as many ICFs/M R as w ould
be needed to meet the demand in Colorado.
Fifth, the plaintiffs assert that Colorado’s waiver application indicates a
comm itment to ensuring that every eligible patient receives services, either from
ICFs/M R or HCBS. The waiver application provides that a developmentally
disabled adult deemed to require the level of care offered by an ICF/M R will be
“informed of any feasible alternatives” to ICFs/M R and “[g]iven the choice of
either institutional or home and community-based services.” R. Vol. IV, at 863.
Although the waiver application suggests that a developmentally disabled person
will have a choice between an ICF/M R and HCBS, it does not assign to the State,
or any other party, the responsibility to ensure that such facilities are in fact
available. Indeed, the waiver application appears to mean only that the choice
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among “feasible alternatives” is to be made by the recipient – not that the State
must make alternatives available. Because it is at best ambiguous on the point, it
provides no reason to reject the natural reading of the statutory definition. None
of these five contextual clues, therefore, undermines the statutory definition of
“medical assistance” as payment for services.
The plaintiffs’ second reason to reject the payment-only reading of
“medical assistance” is policy based. The plaintiffs accuse the State of promising
to pay for services for the developmentally disabled and then suppressing the
supply of these services. They are effectively asking us, in the alternative, (1) to
conclude that in the context of the M edicaid A ct, the state plan, and the State’s
waiver application, “medical assistance” includes a requirement that the State be
a service-provider of the last resort; or (2) to graft onto “medical assistance” a
good-faith requirement that would oblige the state not to discourage proposals
from outside care providers. Such a good-faith requirement has intuitive appeal,
for the State has obvious conflicts of interest. At oral argument the State even
conceded that it may not escape paying for ICF/M R services by setting rates so
low that no one can provide them. Cf. Westside M others, 454 F.3d at 541(allowing plaintiffs, after amending their complaint, “to allege that inadequate
payments effectively deny the right to ‘medical assistance’”).
Nevertheless, we need not decide w hether a state has (or may assume) a
good-faith obligation not to prevent new entrants into this market. The precise
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claim brought by the plaintiffs is narrow. The plaintiffs do not suggest that
ICF/M R rates have been set so low as to prohibit new entrants to the market. Nor
do the plaintiffs claim that the State has discouraged efforts to build HCBS
facilities, which is where the greatest shortfall in facilities exists. And the
plaintiffs do not claim that the state has denied or effectively denied (through
delay or similar means) a formal application to build new ICF/M R facilities.
Indeed, the plaintiffs could not claim this, because no such applications have been
filed. Instead, the individual plaintiffs claim that the State has discouraged
efforts to build new ICFs/M R by responding cooly to initial inquiries. This is too
nebulous a basis to support a legal claim. It is the State’s prerogative to prefer
HCBS over ICFs/M R – a preference shared by many advocates for the
developmentally disabled – and to make that policy preference known. Assuming
arguendo that the State has a duty (either statutory or self-imposed) not to prevent
new entrants who could provide ICF/M R services, it violated no such duty here,
where it neither rejected nor was even presented with any formal applications. If a
case arises in which the State has effectively prevented a qualified provider of
ICF/M R services from entering the market, we will have to decide whether such a
good-faith requirement exists.
W e therefore agree with the Sixth and Seventh Circuits that the M edicaid
statute does not require states to be service-providers of last resort. See Westside
M others, 454 F.3d at 540; Bruggeman, 324 F.3d at 910. Although Bruggeman
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concerned a claim about the location of ICFs/M R within a state, and not about the
lack of them, the Seventh Circuit’s conclusion is directly on point and persuasive:
M edicaid is a payment scheme, not a scheme for state-provided
medical assistance, as through state-owned hospitals. The regulations
that implement the provision indicate that what is required is a
prompt determination of eligibility and prompt provision of funds to
eligible individuals to enable them to obtain the covered medical
services that they need . . . ; a requirement of prompt treatment
would amount to a direct regulation of medical services.
Bruggeman, 324 F.3d at 910. The State must pay for medical services, but it need
not provide them.
III. Rates
A second claim is brought only by the CACCB: that the State payments for
waiver services (H CBS) are insufficient to comply with the M edicaid Act.
Specifically, the CACCB claims that the rates at which the State pays for waiver
services violate 42 U.S.C. § 1396a(a)(30)(A ), which requires a state to
provide such methods and procedures relating to the utilization of,
and the payment for, care and services available under the plan . . .
as may be necessary to safeguard against unnecessary utilization of
such care and services and to assure that payments are consistent
with efficiency, economy, and quality of care and are sufficient to
enlist enough providers 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.
42 U.S.C. § 1396a(a)(30)(A). CACCB brings this claim not only for itself, as an
association of providers, but also on behalf of recipients generally (though not on
behalf of the six individual plaintiffs). Before we can reach the merits of the
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claim, we must decide whether subsection (30)(A) creates a private right
enforceable under §1983. Section 1983 imposes liability on anyone who, under
color of state law, deprives a person “of any rights, privileges, or immunities
secured by the Constitution and laws.” To seek redress through §1983, a plaintiff
must assert a violation of a federal right, not merely a violation of federal law.
Blessing v. Freestone, 520 U.S. 329, 340 (1997). The Court has set forth three
criteria necessary to finding that a statutory provision gives rise to a federal right:
First, Congress must have intended that the provision in question
benefit the plaintiff. Second, the plaintiff must demonstrate that the
right assertedly protected by the statute is not so “vague and
amorphous” that its enforcement would strain judicial competence.
Third, the statute must unambiguously impose a binding obligation
on the States. In other words, the provision giving rise to the
asserted right must be couched in mandatory, rather than precatory,
terms.
Id. at 340-41 (citations omitted). Once a plaintiff demonstrates that a statute
creates a federal right, the right is presumptively enforceable under §1983 unless
Congress specifically foreclosed such a remedy. Gonzaga, 536 U.S. at 284 & n.4.
In Wilder v. Va. Hosp. Ass’n, 496 U.S. 498 (1990) the Supreme Court
considered a M edicaid provision with wording very similar to subsection (30)(A),
and the Court did find an enforceable private right. 3 In Gonzaga, 536 U.S. at 283,
3
The statute, which was known as the Boren Amendment and has since been
repealed, was the previous version of 42 U .S.C. § 1902(a)(13). It read as follow s:
a State plan for medical assistance must-
(continued...)
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however, the Supreme Court tightened the first requirement. After Gonzaga, an
enforceable private right exists only if the statute contains nothing “short of an
unambiguously conferred right” and not merely a vague benefit or interest. Id.
No enforceable right exists “where a statute by its terms grants no private rights
to any identifiable class.” Id. at 283-84. Although professing not to overrule
Wilder, Gonzaga recharacterized the earlier decision as a case finding an
enforceable private right in a “provision [that] required States to pay an
‘objective’ monetary entitlement to individual heath care providers.” See
Gonzaga, 536 U.S. at 280; see also id. at 300 n.8 (Stevens, J., dissenting).
3
(...continued)
.....
provide . . . for payment . . . of the hospital services, nursing facility
services, and services in an intermediate care facility for the mentally
retarded provided under the plan through the use of rates (determined
in accordance with methods and standards developed by the
State . . .) which the State finds, and makes assurances satisfactory to
the Secretary, are reasonable and adequate to meet the costs which
must be incurred by efficiently and economically operated facilities
in order to provide care and services in conformity with applicable
State and Federal laws, regulations, and quality and safety standards
and to assure that individuals eligible for medical assistance have
reasonable access . . . to inpatient hospital services of adequate
quality.
42 U.S.C. § 1396a(a)(13)(A) (1982 ed., Supp. V), quoted in Wilder, 496 U.S. at
502-03 (emphasis in quotation).
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Since Gonzaga, four circuit courts have considered whether subsection
(30)(A) creates an enforceable private right. Three have concluded that the
provision does not create an enforceable right. Westside M others v. Olszewski,
454 F.3d 532, 542-43 (6th Cir. 2006) (concluding that subsection (30)(A) “has an
aggregate focus rather than an individual focus” and its “broad and nonspecific”
language is “ill-suited to judicial remedy”); Sanchez v. Johnson, 416 F.3d 1051,
1059 (9th Cir. 2005) (finding no enforceable private right for recipients or
providers because “nothing in the text of § 30(A) . . . unmistakably focuses on
recipients or providers as individuals” and because “the flexible, administrative
standards embodied in the statute do not reflect a Congressional intent to provide
a private remedy for their violation”); Long Term Pharmacy Alliance v. Ferguson,
362 F.3d 50, 57 (1st Cir. 2004) (finding no enforceable private right for providers
because subsection (30)(A) “has no ‘rights creating language’ and identifies no
discrete class of beneficiaries”). Only one circuit has found an enforceable
private right. Pediatric Specialty Care, Inc. v. Ark. Dep’t of Hum an Servs., 443
F.3d 1005, 1015-16 (8th Cir. 2006) (following prior circuit precedent that
subsection (30)(A) created an enforceable private right for recipients and
providers, and concluding that even after Gonzaga the provision “creates
enforceable rights for both groups”).
W e join the First, Sixth, and Ninth Circuits in concluding that subsection
(30)(A) does not create a federal right enforceable under §1983. Even though
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Wilder addressed a similar statute, our approach is controlled by Gonzaga, the
Supreme Court’s most recent assessment of private rights of action. Applying
that analysis, we conclude that subsection (30)(A) “identifies no discrete class of
beneficiaries.” Long Term Health Care Pharmacy Alliance, 362 F.3d at 57. This
provision refers to recipients only “in the aggregate, as members of ‘the general
population in the geographic area’”; and providers are mentioned only “as indirect
beneficiaries ‘enlisted’ as subordinate partners in the administration of M edicaid
services.” Westside M others, 454 F.3d at 542-43 (quoting 42 U.S.C. §
1396a(a)(30)(A)). Recipients and providers surely benefit from efficient
M edicaid administration, for example, as do taxpayers generally, but subsection
(30)(A) never establishes an “identifiable class” of rights-holders. And without
such an identifiable class, no enforceable federal right is created. Gonzaga, 536
U.S. at 283-84.
Because subsection (30)(A ) fails to satisfy the first of the criteria set forth
in Blessing for establishing a federal right enforceable under § 1983, there is no
need for us to consider the other criteria. See Gonzaga, 536 U.S. at 287-89(holding that certain provisions of federal law are not privately enforceable under
§ 1983 because there was no congressional intent to confer rights on individual
beneficiaries, without consideration of other Blessing factors); cf. id. at 292
(Breyer, J., concurring) (agreeing with the majority but also concluding that
“[m]uch of the statute’s key language is broad and nonspecific”).
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One circuit has found that subsection (30)(A ) creates an enforceable private
right. Relying on its own precedent, Wilder, and Gonzaga, the Eighth Circuit
found that both recipients and providers could sue to enforce this subsection.
Pediatric Specialty Care, 443 F.3d at 1015-16. In analyzing Gonzaga, the court
concluded that “[t]he beneficiaries [of subsection (30)(A )] are both the recipients
of the services and the recipients of the state’s payment,” i.e., the providers. Id.
at 1015. W e respectfully disagree. Despite the fact that recipients and providers
ultimately benefit from competent administration, they are nowhere identified in
the statutory provision as a class of beneficiaries. And Gonzaga requires not a
vague benefit or interest but rather an “unambiguously conferred right.” 536 U.S.
at 283. In sum, because the provision does not confer enforceable federal rights
on identified beneficiaries, Gonzaga precludes interpreting subsection (30)(A ) to
create a federal right enforceable under §1983.
IV. Class Certification
Finally, the plaintiffs also challenge the district court’s denial of class
certification. Because this opinion disposes of all issues in the potential class
action, plaintiffs’ motion for class certification is now moot. See Gullickson v.
Sw. Airlines Pilots’ Ass’n, 87 F.3d 1176, 1187 (10th Cir. 1996); Rucker v. St.
Louis Sw. Ry. Co., 917 F.2d 1233, 1237 n.1 (10th Cir. 1990).
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V. Conclusion
For the foregoing reasons, we AFFIRM the district court’s entry of
judgment in favor of the defendants.
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