Watson v. Weeks

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM W. WATSON, JR.; CHARLES 
E. PAPST, JR., by and through his
next friend, Nida Morris; ROBERT
WOODFORD, by and through his
next friend, Anita Geistlinger;
HEIDI HALTER, by and through her
next friend Hayley Adams; AMAR
JUSLEN, by and through his next
friend, Raul Juslen; IRMA RADTKE,
by and through her next friend,
Hans Radtke; SHELLI A. CAMERON;
No. 04-35704
and OREGON ADVOCACY CENTER,
Plaintiffs-Appellants,
 D.C. No.
CV-03-00227-HA
v.
OPINION
GARY WEEKS, in his official
capacity as Director, Oregon
Department of Human Services;
LYNN READ, in her official
capacity as Acting Administrator
of the Office of Medical
Assistance Program; and JAMES
TOEWS, in his official capacity as
Acting Administrator, Seniors and
People with Disabilities,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Oregon
Ancer Haggerty, District Judge, Presiding
Argued and Submitted
December 13, 2005—Portland, Oregon
1509
1510 WATSON v. WEEKS
Filed February 8, 2006
Before: Procter Hug, Jr., Susan P. Graber, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Hug
1512 WATSON v. WEEKS
COUNSEL
Lauren K. Saunders, National Senior Citizens Law Center,
Washington, D.C., for the appellants.
Janet A. Metcalf, Assistant Attorney General, Salem, Oregon,
for the appellees.
Bruce Vignery, AARP Foundation Litigation, Washington,
D.C., and Jane Perkins, National Health Law Program,
Chapel Hill, North Carolina, for amici curiae.
WATSON v. WEEKS 1513
OPINION
HUG, Circuit Judge:
Seven Medicaid-eligible Oregon residents and the Oregon
Advocacy Center (collectively the “Plaintiffs”) appeal the dis-
trict court’s order dismissing their action against Oregon state
health officials, seeking declaratory and injunctive relief.
Their appeal presents an issue of first impression for this cir-
cuit: whether certain provisions of the Medicaid Act, 42
U.S.C. §§ 1396a(a)(10) and 1396a(a)(17), create individual
rights enforceable under 42 U.S.C. § 1983 (“section 1983”).
The seven individual plaintiffs, who are seniors and dis-
abled individuals, had received home and community-based
services as an alternative to Medicaid institutional nursing
facility services. They lost their Medicaid eligibility, however,
when the Oregon Department of Human Services (the “De-
partment”) scaled back the state’s Medicaid program in the
face of a budget crisis. Plaintiffs sued officials in the Depart-
ment under section 1983 in federal district court. The individ-
ual plaintiffs alleged that they required the level of care that
entitles them to nursing facility services under the Medicaid
Act. They further alleged that the Department’s actions vio-
lated both section 1396a(a)(10), which requires states to pro-
vide nursing facility services to eligible individuals, and
section 1396a(a)(17), which requires states to use reasonable
standards in setting Medicaid eligibility.
The district court granted the Department’s motion to dis-
miss the complaint under Federal Rule of Civil Procedure
(“FRCP”) 12(b)(6), concluding that the Medicaid Act provi-
sions in question do not create individual rights enforceable
through section 1983. In dismissing the case, the court also
denied Plaintiffs leave to amend their complaint.
Plaintiffs appeal the dismissal of their complaint and the
denial of leave to amend. We have jurisdiction under 28
1514 WATSON v. WEEKS
U.S.C. § 1291, and we hold that section 1396a(a)(10) creates
an individual right enforceable under section 1983. We also
hold that section 1396a(a)(17) does not create such an indi-
vidual right. We do not reach the question of the district
court’s denial of leave to amend. The district court is thus
affirmed in part, and reversed in part. We remand for further
proceedings consistent with this opinion.
I
BACKGROUND
A. The Medicaid Framework
Medicaid is a cooperative Federal-State program with the
“purpose of enabling each State, as far as practicable under
the conditions in such State, to furnish (1) medical assistance
on behalf of . . . individuals, whose income and resources are
insufficient to meet the costs of necessary medical services.”
42 U.S.C. § 1396. States choosing to participate in the pro-
gram, such as Oregon, must develop a medical assistance plan
meeting the approval of the federal Secretary of Health and
Human Services (the “Secretary”). See id. A participating
state receives federal reimbursement for “medical assistance”
that it renders under its approved plan. See id.The “medical assistance” provided by a state plan must
include certain minimum services to “all individuals” who are
financially eligible. See 42 U.S.C. § 1396a(a)(10)(A) (identi-
fying the seven subsections of 42 U.S.C. § 1396d(a) that
describe the minimum services). Among the services that
must be provided are “nursing facility services (other than
services in an institution for mental diseases) for individuals
21 years of age or older.” 42 U.S.C. § 1396d(a)(4)(A). The
Medicaid Act defines a “nursing facility” as an institution pri-
marily engaged in providing skilled nursing care, rehabilita-
tion services, or regular health-related care and services
(above the level of room and board) available only in institu-
WATSON v. WEEKS 1515
tions. See 42 U.S.C. § 1396d(c) (referring to 42 U.S.C.
§ 1396r(a) for definition); 42 U.S.C. § 1396r(a)(1).
A state plan must also provide “reasonable standards . . .
for determining eligibility for and the extent of medical assis-
tance under the plan,” 42 U.S.C. § 1396a(a)(17), and must
include necessary safeguards to assure that eligibility for ser-
vices is provided “in a manner consistent with simplicity of
administration and the best interests of the recipients.” 42
U.S.C. § 1396a(a)(19).
A related provision of Medicaid is the Home and Commu-
nity Based Services (“community-based services”) waiver
program. A community-based services waiver permits a state
plan to include as “medical assistance” certain home and
community-based services rendered to individuals who other-
wise would require nursing facility care that could be reim-
bursable under the state plan. See 42 U.S.C. § 1396n(c)(1). A
waiver program must include a method for assessing whether
possible service recipients need inpatient hospital services,
nursing facility services, or services in an intermediate care
facility for the mentally ill. 42 U.S.C. § 1396n(c)(2)(B). The
implementing regulations for § 1396n(c)(1) provide that a
state may terminate its waiver at any time upon notice to the
recipients and Secretary. See 42 C.F.R. § 441.307. A waiver
may also be modified at any time, subject to the Secretary’s
approval. See 42 C.F.R. § 441.355.
B. Oregon’s Community-Based Services Waiver
Oregon initiated its community-based services waiver pro-
gram in 1981. The waiver included the Client Assessment and
Planning System, whereby the state classified eligible individ-
uals into service priority levels based on medical need; the
levels number from one to eighteen, with level one reflecting
the most urgent medical need.1 Oregon uses a single set of
1
The service priority levels are codified in Oregon’s administrative
rules. OR. ADMIN. R. 411-015-0010 (2005).
1516 WATSON v. WEEKS
criteria for determining eligibility, whether services are in
nursing facilities or community based.2 The original waiver
provided care to all individuals assessed at levels one through
seventeen. The Department also made community-based ser-
vices available to any person eligible for institutional nursing
care, leading to a large reduction in the services that had to
be provided at nursing facilities.
More recently, however, Oregon has eliminated coverage
for some service levels, purely to cut state spending. On Janu-
ary 27, 2003, due to budget difficulties, the Department sub-
mitted a proposed waiver modification to eliminate eligibility
for individuals in service levels fifteen to seventeen. The Sec-
retary approved the modification. On February 24, 2003, the
Department successfully requested another modification: the
elimination of eligibility for individuals in levels ten to four-
teen. The Oregon legislature subsequently restored funding
through August 31, 2003, for service levels ten and eleven,
and restored levels ten through thirteen for the 2003-2005
budget. Current Oregon regulations reflect these limitations,
providing that only those individuals in levels one through
thirteen are eligible for services.3
Under Oregon’s cutbacks, individuals who are deemed
ineligible for nursing facility or community-based services
cannot challenge the state’s decision to eliminate eligibility of
a service level, but may challenge only their placement into
their particular service level. Oregon estimated that elimina-
tion of levels fifteen through seventeen affected 4,000 indi-
viduals in community-based settings and 85 individuals in
nursing facilities. The elimination of levels ten through four-
teen was projected to terminate services for 6,100 individuals
2
See OR. ADMIN. R. 411-015-0100 (2005) (establishing eligibility for
nursing facility and community-based services based on the service prior-
ity levels of OR. ADMIN. R. 411-015-0010).
3
OR. ADMIN. R. 411-015-0015(1) (2005) (rule is entitled “Current Limi-
tations”).
WATSON v. WEEKS 1517
in community-based settings and 300 individuals in nursing
facilities.
II
COURT PROCEEDINGS
On February 20, 2003, Plaintiffs filed a complaint against
the Department in federal district court for the District of Ore-
gon.4 On March 24, 2003, before the Department had
responded, Plaintiffs filed a First Amended Complaint. The
amended complaint set forth five claims for relief; Plaintiffs
are appealing only the district court’s dismissal of the first
three of these claims. The first claim alleged that the Depart-
ment’s withdrawal of eligibility violated, inter alia, 42 U.S.C.
§ 1396a(a)(10), which requires that state Medicaid plans pro-
vide nursing facility services to eligible individuals. The sec-
ond claim alleged that the Department’s actions violated, inter
alia, 42 U.S.C. § 1396a(a)(17)’s “reasonable standards”
requirement. The third claim alleged that the Department vio-
lated 42 U.S.C. § 1396a(a)(17) by assessing Plaintiffs’ medi-
cal need for nursing facility services using agents who lacked
the necessary professional qualifications and training and who
employed subjective and inaccurate judgments.
On April 22, 2003, the Department moved to dismiss the
claims under FRCP 12(b)(6). On November 24, 2003, the
magistrate judge filed a report that recommended granting the
motion. On December 10, 2003, Plaintiffs filed objections to
the magistrate judge’s findings and recommendations. They
4
Plaintiffs requested, among other remedies, a preliminary injunction
enjoining the Department from terminating services to persons assessed at
service levels ten through seventeen. On June 16, 2003, the district court
denied the Plaintiffs’ preliminary injunction request. Plaintiffs interlocu-
torily appealed, and the Ninth Circuit granted the Department’s motion to
dismiss the appeal as moot, because the district court had in the meantime
entered an order dismissing the action. Watson v. Thorne, 107 Fed. Appx.
150 (9th Cir. 2004) (unpublished order).
1518 WATSON v. WEEKS
stated that they were “entitled to an opportunity to amend the
complaint,” identifying two ways in which their amended
complaint might be amended further. First, to avoid any mis-
perception that Plaintiffs were alleging a right to community-
based services, rather than nursing facility services, Plaintiffs
stated that they could “emphasize more strongly that they
assert a statutory right” to nursing facility services. Second,
Plaintiffs stated they could add causes of action under the
Supremacy Clause.
On June 25, 2004, the district court entered a judgment and
order that granted the Department’s 12(b)(6) motion. The dis-
trict court adopted the findings and recommendations of the
magistrate judge. In the order, the district court also denied
Plaintiffs leave to amend their complaint. The court noted that
Plaintiffs already had amended their complaint “and that the
opposing parties could suffer significant prejudice from plain-
tiffs’ amendment at this stage in the litigation, after the exten-
sive briefing and arguments that have been presented.” In
addition, the court noted “the apparent futility of amendment
under the binding authorities as presently interpreted.” The
district court entered final judgment against Plaintiffs on June
25, 2004. Plaintiffs timely filed a Notice of Appeal on July
21, 2004.
III
STANDARD OF REVIEW
We review de novo the district court’s decision to grant a
motion to dismiss pursuant to FRCP 12(b)(6). ASW v. Ore-
gon, 424 F.3d 970, 974 (9th Cir. 2005). We accept as true all
well-pleaded facts in the complaint and construe them in the
light most favorable to the nonmoving party. Id. A claim
should be dismissed only if it appears beyond doubt that the
plaintiff can establish no set of facts under which relief could
be granted. Pacheco v. United States, 220 F.3d 1126, 1129
(9th Cir. 2000).
WATSON v. WEEKS 1519
IV
STATUTORY ANALYSIS
It may be helpful to provide a brief explanation of the
applicable law for determining whether a particular federal
statute can be enforced through a private right of action under
section 1983. Under section 1983, persons are liable if they
act under color of law to deprive individuals of “any rights,
privileges, or immunities secured by the Constitution and
laws” of the United States. 42 U.S.C. § 1983. In Wilder v. Vir-
ginia Hospital Ass’n, the Supreme Court allowed a section
1983 action by health care providers to enforce a reimburse-
ment provision of the Medicaid Act requiring “reasonable and
adequate” payment, holding that the provision explicitly con-
ferred specific monetary entitlements upon the plaintiffs. 496
U.S. 498, 501-02 (1990), superseded on other grounds by
statute as discussed in Alaska Dep’t of Health & Soc. Servs.
v. Ctrs. for Medicare & Medicaid Servs., 424 F.3d 931 (9th
Cir. 2005).5 The Wilder Court explained that the provision
required the state plan to provide for reimbursement to facili-
ties and that the intent to benefit such facilities was unmistak-
able. Id. at 510.
In Suter v. Artist M., the Court distinguished Wilder and
found no section 1983 right for parents and children who sued
5
The provision at issue in Wilder read:
a State plan for medical assistance must —
provide . . . for payment . . . of the hospital services . . . 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 Secre-
tary, are reasonable and adequate to meet the costs which must
be incurred by efficiently and economically operated facilities
....
Wilder, 496 U.S. at 502-03 (quoting 42 U.S.C. § 1396(a)(13)(A) (1982 &
Supp. V)).
1520 WATSON v. WEEKS
under the Adoption Assistance and Child Welfare Act of
1980, because “reasonable efforts” to keep children out of
foster homes imposed only “a rather generalized duty” on the
state and conferred no individualized rights.6 503 U.S. 347,
363 (1992). The Suter Court explained that Wilder’s term
“reasonable and adequate” was accompanied by sufficiently
detailed guidance to a court that it could be judicially
enforced. Suter, 503 U.S. at 359. By contrast, the statutory
term in Suter, “reasonable efforts,” provided no such guidance
and thus a court could not readily ascertain the outlines of the
alleged right. Id. at 359-60. Suter has been since limited as a
bar to finding a section 1983 right; Congress responded to the
opinion 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.7
6
The relevant provision was:
(a) Requisite features of State plan
In order for a State to be eligible for payments . . ., it shall
have a plan approved by the Secretary which —
.....
(3) provides that the plan shall be in effect in all political
subdivisions of the State . . . ;
.....
(15) . . . provides that . . . reasonable efforts will be made . . .
to prevent the need for removal of the child from his home
....
Suter, 503 U.S. at 351 (quoting 42 U.S.C. §§ 671(a)(3), (15)(A) (1988 &
Supp. I)).
7
The statute reads in part:
In an action brought to enforce a provision of this chapter, such
provision is not to be deemed unenforceable because of its inclu-
sion in a section of this chapter requiring a State plan or specify-
ing the required contents of a State plan.
42 U.S.C. § 1320a-2.
WATSON v. WEEKS 1521
[1] In 1997, the Supreme Court established the current
three-prong test for determining whether a particular federal
statute can be enforced through a private right of action under
section 1983. Blessing v. Freestone, 520 U.S. 329, 340
(1997). The Blessing test requires: 1) that Congress intended
the statutory provision to benefit the plaintiff; 2) that the
asserted right is not so “vague and amorphous” that its
enforcement would strain judicial competence; and 3) that the
provision couch the asserted right in mandatory rather than
precatory terms. Id. at 340-41. If the provision meets this test,
then there is a presumption that it is subject to private
enforcement under section 1983. Id. at 341. The presumption
is rebutted, however, if Congress expressly or impliedly fore-
closed enforcement under section 1983; an implied foreclo-
sure occurs if Congress created “a comprehensive
enforcement scheme that is incompatible with individual
enforcement.” Id.The Supreme Court clarified the first prong of the Blessing
test in Gonzaga University v. Doe, 536 U.S. 273 (2002). In
Gonzaga, the Court held that congressional intent to benefit
the plaintiff must be shown by statutory language “phrased in
terms of the persons to be benefited.” Id. at 284 (quoting Can-
non v. Univ. of Chicago, 441 U.S. 677, 692 n.13 (1979)).
“[A]nything short of an unambiguously conferred right” will
not support a 1983 action. Gonzaga, 536 U.S. at 283. The
Court explained that section 1983 was intended to enforce
“rights” as opposed to “benefits” or “interests,” the latter two
being too broad or vague for judicial enforcement. Id. To
create enforceable rights, the statutory provision in question
must focus on individual rights to benefits, rather than only
the aggregate or systemwide policies and practices of a regu-
lated entity. See id. at 287-88. As exemplars of statutory pro-
visions that create section 1983 rights, the Court discussed
Title VI of the Civil Rights Act of 1964 and Title IX of the
Education Amendments of 1972, both of which use the word-
ing “[n]o person . . . shall . . . be subjected to discrimination.”
Id. at 284 & n.3.
1522 WATSON v. WEEKS
V
EXISTENCE OF A PRIVATE RIGHT OF ACTION
As a threshold matter, we accept as true Plaintiffs’ state-
ment that those individuals assessed at levels one through sev-
enteen need nursing facility services. See ASW, 424 F.3d at
974. Plaintiffs’ medical need may indeed be more than a well-
pleaded fact; the magistrate judge found that “[p]laintiffs are
individuals whose serious medical problems and cognitive
limitations require that they either be cared for in a nursing
facility or receive an equivalent level of care in community
settings.”
A. Section 1396a(a)(10) Creates a Private Right of Action
[2] According to section 1396a(a)(10), a state plan for med-
ical assistance must provide “for making medical assistance
available, including at least the care and services listed in
paragraphs (1) through (5) . . . of section 1396d(a) of this
title,” to “all individuals” meeting specified financial eligibil-
ity standards. 42 U.S.C. § 1396a(a)(10).
In holding that this statutory provision creates a right
enforceable by section 1983, we join five federal circuit
courts that have already so held.8 No circuit court has held
that section 1396a(a)(10) does not create a section 1983 right.
8
Post-Gonzaga, the Third and Fifth Circuits have found an enforceable
section 1983 right in section 1396a(a)(10). Sabree ex rel. Sabree v. Rich-
man, 367 F.3d 180 (3d Cir. 2004); S.D. ex rel. Dickson v. Hood, 391 F.3d
581 (5th Cir. 2004). Pre-Gonzaga, three other federal circuits had held that
a section 1983 right exists in section 1396a(a)(10). Westside Mothers v.
Haveman, 289 F.3d 852 (6th Cir. 2002); Pediatric SpecialtyCare, Inc. v.
Ark. Dep’t of Human Servs., 293 F.3d 472 (8th Cir. 2002); Miller v. Whit-
burn, 10 F.3d 1315 (7th Cir. 1993).
Other federal circuits have found section 1983 rights in other statutes
that have wording akin to that in section 1396a(a)(10). In 2004, post-
WATSON v. WEEKS 1523
[3] Our initial inquiry under the first prong of Blessing is
whether section 1396a(a)(10) reveals a congressional intent to
create an individualized right. We hold that it does. Signifi-
cantly, the provision is phrased in terms of the individuals
benefited. See Gonzaga, 536 U.S. at 283-84 (stating that a
statute must be so phrased to create a section 1983 right).
Gonzaga cited text from Titles VI and IX, “[n]o person . . .
shall . . . be subjected to discrimination,” as language confer-
ring a section 1983 right. Id. at 284 & n.3. In the instant
appeal, the relevant phrase is “[a] State plan . . . must provide
for making medical assistance available . . . to all individu-
als.” (Emphasis added). This language is unmistakably
focused on the specific individuals benefited; it provides for
medical assistance to all individuals who meet eligibility
requirements. The wording of section 1396a(a)(10) is similar
to the statutory provision we examined in Price v. City of
Stockton — “Each grantee shall provide for reasonable bene-
fits to any person”9 — which we held “requires that benefits
be provided to particular persons . . . [and] evinces a clear
Gonzaga, the Second Circuit held that 42 U.S.C. § 1396r-6, providing for
transitional Medicaid assistance, creates an individual section 1983 right.
Rabin v. Wilson-Coker, 362 F.3d 190, 201-02 (2d Cir. 2004) (statute
requires that “each State plan approved under this subchapter must provide
that each family which was receiving aid . . . shall . . . remain eligible for
assistance under the plan”).
The First Circuit also held post-Gonzaga that another similar Medicaid
Act provision, section 1396a(a)(8), created an enforceable right under sec-
tion 1983. Bryson v. Shumway, 308 F.3d 79, 88 (1st Cir. 2002) (statute
requires that “medical assistance . . . shall be furnished with reasonable
promptness to all eligible individuals”).
Following its earlier holding in Westside Mothers, the Sixth Circuit,
post-Gonzaga, has found a section 1983 right in section 1396a(a)(3)
(Medicaid Act provision requiring a “fair hearing before the State agency”
for individuals whose “claim for medical assistance under the plan is
denied or is not acted upon with reasonable promptness”). Gean v. Hat-
taway, 330 F.3d 758, 772-73 (6th Cir. 2003).
9
42 U.S.C. § 5304(k).
1524 WATSON v. WEEKS
intent to create a federal right.” 390 F.3d 1105, 1111 (9th Cir.
2004) (per curiam).10
There is strong support for this reading of section
1396a(a)(10) in holdings by the Third and Fifth Circuits, and
we endorse these courts’ reasoning. In Sabree ex rel. Sabree
v. Richman, the Third Circuit noted that “it [is] difficult, if not
impossible, as a linguistic matter, to distinguish the import of
the relevant [Medicaid Act] language — ‘A State plan must
provide’ — from the ‘No person shall’ language of Titles VI
and IX.” 367 F.3d 180, 190 (3d Cir. 2004). The court
observed that the “individual focus” of section 1396a(a)(10)
is “unmistakable.” Id. The Third Circuit convincingly noted
that the focus of section 1396a(a)(10) is on the individual pro-
tected, rather than on the entity. Id.In S.D. ex rel. Dickson v. Hood, the Fifth Circuit similarly
held that section 1396a(a)(10) features “precisely the sort of
‘rights-creating’ language identified in Gonzaga as critical to
demonstrating a congressional intent to establish a new right.”
391 F.3d 581, 603 (5th Cir. 2004).11 According to the Fifth
Circuit, the only “potentially material difference” between
section 1396a(a)(10) and the Gonzaga-approved rights-
creating language of Titles VI and IX is that section
1396a(a)(10) requires state action under a medical assistance
plan. Id. However, the Fifth Circuit cited section 1320a-2, the
10
In Price, we interpreted a provision of the Housing and Community
Development Act requiring assistance to residents displaced by federally-
funded redevelopment activities:
Each grantee shall provide for reasonable benefits to any person
involuntarily and permanently displaced as a result of the use of
assistance received under this chapter to acquire or substantially
rehabilitate property.
42 U.S.C. § 5304(k); see 390 F.3d at 1112.
11
In ASW v. Oregon, we approvingly cited this sentence of S.D. in our
discussion of the first prong of Blessing. 424 F.3d 970, 976 (9th Cir.
2005).
WATSON v. WEEKS 1525
“Suter fix,” to establish that this provision in section
1396a(a)(10) is not unenforceable merely because it requires
action under a state plan. Id.Within this circuit, we recently implied that section
1396a(a)(10) may create a section 1983 right. In Sanchez v.
Johnson, we undertook a Blessing analysis and held that
another Medicaid Act provision, section 1396a(a)(30)(A),
failed the first prong. 416 F.3d 1051, 1062 (9th Cir. 2005). In
so doing, we cited Sabree and contrasted section
1396a(a)(30)(A) with section 1396a(a)(10):
Although 42 U.S.C. § 1396a(a) sets out a compre-
hensive list of requirements that a state plan must
meet, it does not describe every requirement in the
same language. Some requirements, such as those
addressed in Sabree [§ 10], focus on individual
recipients, while others are concerned with the pro-
cedural administration of the Medicaid Act by the
States and only refer to recipients, if at all, in the
aggregate. Section 30(A) is one of the latter provi-
sions . . . .
Sanchez, 416 F.3d at 1062.
For contrast, it may be helpful to discuss a Medicaid Act
provision that we have held did not create a section 1983
right. In San Lazaro Ass’n v. Connell, 286 F.3d 1088, 1099
(9th Cir. 2002), we held that 42 U.S.C. § 1396a(a)(5)’s
requirement that a state “provide for the establishment . . . of
a single State agency to administer . . . the [State’s] plan,”
although for the benefit of medical providers, did not give
providers a section 1983 right because it is “a structural pro-
grammatic requirement that facilitates federal oversight of
state Medicaid programs.”12 Indeed, section 1396a(a)(5) fails
12
Section 1396(a)(5) mandates that a participating state “provide for the
establishment or designation of a single State agency to administer or to
supervise the administration of the [State’s] plan.”
1526 WATSON v. WEEKS
to mention providers at all. It is clearly directed at the aggre-
gate practices of a regulated entity, the state. The wording of
section 1396a(a)(10) is sharply different: Congress used “all
individuals” as a focal term and established entitlements to
specific benefits for individuals.
[4] In addition to meeting the first prong under Blessing,
section 1396a(a)(10) meets the second and third prongs. It
sets forth explicitly what nursing facility services must be
offered, through reference to particular provisions of section
1396d(a). These provisions supply concrete and objective
standards for enforcement; they are hardly vague and amor-
phous. See Suter, 503 U.S. at 370 (Blackmun, J., dissenting)
(explaining that to be judicially enforceable, a right must be
expressed at least in terms of objective standards). Section
1396a(a)(10) is also expressly worded in mandatory, not pre-
catory terms; it obviously sets out specific requirements for
state plans. See Wilder, 496 U.S. at 512 (finding that a Medic-
aid Act provision that a state plan “must” provide payments
to hospitals couches an asserted right in mandatory, not preca-
tory, terms).
[5] Because section 1396a(a)(10) requires states to provide
particularly specified benefits to particularly specified types
of individuals, there is a presumption of a section 1983 right
under Blessing. See 520 U.S. at 341. The Department must
rebut this presumption by demonstrating that Congress fore-
closed the right. See id. The Supreme Court has stated that a
court should “not lightly conclude that Congress intended to
preclude reliance on § 1983 as a remedy” for deprivation of
a federally secured right. Golden State Transit Corp. v. Los
Angeles, 493 U.S. 103, 107 (1989) (citations and internal quo-
tations omitted). The Medicaid Act does not expressly fore-
close a section 1983 right, so the Department must show that
Congress provided a comprehensive remedial scheme that is
incompatible with individual actions under the Blessing anal-
ysis.
WATSON v. WEEKS 1527
[6] The Department cannot rebut the presumption of a sec-
tion 1983 right.13 Although there are state administrative pro-
cedures available to Plaintiffs under section 1396a(a)(3),
“[t]he availability of state administrative procedures ordinar-
ily does not foreclose resort to § 1983.” Wilder, 496 U.S. at
523. In Wilder, medical providers had the right to contest
individual claims for payment before a state agency, but could
not challenge the overall method by which payment rates
were calculated. Id. The Court found that such “limited”
administrative procedures could not be considered compre-
hensive and could not show congressional intent to foreclose
a section 1983 right. Id. In the instant appeal, the administra-
tive rights granted by the Department are similar to those in
Wilder; individuals may only appeal their service level deter-
mination, not the state’s underlying decision to not serve indi-
viduals in certain levels. The limited rights available to
Plaintiffs are also similar to those analyzed by this court in
ASW v. Oregon, where we found that providing adoption
assistance beneficiaries with a fair hearing before a state
agency regarding individual benefit claims was not a compre-
hensive enforcement mechanism incompatible with a section
1983 action. 424 F.3d at 978. Plaintiffs have established a
section 1983 right under section 1396a(a)(10).
B. Section 1396a(a)(17) Does Not Create a Private Right of
Action
[7] We are the first federal circuit to address whether sec-
tion 1396a(a)(17) creates a section 1983 right.14 Section
13
The Department’s brief did not make any attempt to rebut the pre-
sumption.
14
One published federal district court case has held that there is no pri-
vate right implied under section 1396a(a)(17). Sanders ex rel. Rayl v. Kan.
Dep’t of Soc. & Rehab. Servs., 317 F. Supp. 2d 1233, 1250 (D. Kan.
2004).
Three published federal district court cases have held that there is a pri-
vate right implied under section 1396a(a)(17), and we have considered
these cases but found them unpersuasive. See Mendez v. Brown, 311 F.
Supp. 2d 134, 139 (D. Mass. 2004); Markva v. Haveman, 168 F. Supp. 2d
695, 711 (E.D. Mich. 2001); Smith v. Palmer, 24 F. Supp. 2d 955, 963-64
(N.D. Iowa 1998).
1528 WATSON v. WEEKS
1396a(a)(17) provides that a state plan for medical assistance
“must . . . include reasonable standards (which shall be com-
parable for all groups . . . ) for determining eligibility for and
the extent of medical assistance under this plan.”
[8] There is insufficient evidence of congressional intent to
create a section 1983 right under this provision. Section
1396a(a)(17) is a general discretion-granting requirement that
a state adopt reasonable standards. It fails to provide an “un-
ambiguously conferred right” and fails the first prong of
Blessing. The key wording of section 1396a(a)(17) fails to
even mention individuals or persons. Unlike section
1396a(a)(10), section 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. See 536 U.S. at 284. More-
over, the parenthetical statement in section 1396a(a)(17) that
the state’s reasonable standards “shall be comparable for all
groups” puts a focus on the standards themselves and on their
aggregate impact, rather than on the benefits to individuals.
[9] Even if section 1396a(a)(17) passed the first Blessing
prong, it clearly fails the second prong, because the right it
would create is too vague and amorphous for judicial enforce-
ment. The provision does not provide meaningful instruction
for the interpretation of “reasonable standards” in terms of
medical need. It provides guidance only regarding the finan-
cial means of a potential beneficiary. Wilder found the term
rates that “are reasonable and adequate” to be objective and
thus judicially manageable because the statute tied it to a
benchmark of the “efficiently and economically operated
facility.” Wilder, 496 U.S. at 519-20; see also Suter, 503 U.S.
at 370-71 (Blackmun, J., dissenting) (explaining that a judi-
cially manageable right need not be mechanical, but must be
tied to some objective standard). However, the only guidance
of section 1396a(a)(17)(A) regarding medical need eligibility
is that state standards be “consistent with the objectives of this
subchapter.” Judicial enforcement of section 1396a(a)(17)
under Plaintiffs’ argument would require a court to delve into
WATSON v. WEEKS 1529
the medical necessity of particular types of care. If Congress
had intended that result, it would have provided more con-
crete standards in the statute for determining eligibility based
on medical need.
VI
DENYING PLAINTIFFS LEAVE TO AMEND
The parties devoted little briefing and no argument to this
portion of the appeal, and we find it unnecessary to reach this
question. Once proceedings resume on the remand of Plain-
tiffs’ section 1983 claim under section 1396a(a)(10), Plaintiffs
will have an opportunity anew to seek amendment of the
pleadings.
VII
CONCLUSION
Plaintiffs have a private right of action under section 1983
to enforce section 1396a(a)(10). They do not have a section
1983 right under section 1396a(a)(17). We AFFIRM the dis-
trict court in part, and REVERSE in part. The case is
REMANDED to the district court for further proceedings con-
sistent with this opinion.
Each party shall bear their own costs on appeal.