DocketNumber： Civil No. 09-cv-94-JL
Citation Numbers： 814 F. Supp. 2d 59, 2011 DNH 157
Judges： Laplante
Filed Date： 9/30/2011
Status： Precedential
Modified Date： 11/26/2022
This action presents the question of whether private citizens can enforce certain requirements that federal law imposes on the states as a condition of funding for foster care and adoption services. The plaintiffs claim that, in violation of these requirements, the New Hampshire Department of Health and Human Services (and other defendants) removed the plaintiffs’ minor children from their home, placed them in different foster homes from each other, and failed to place them with foster families “who respected and followed [the childrens’] religious, ethnic or cultural background.”
The plaintiffs, proceeding pseudonymously as BK (the childrens’ father) and SK (the childrens’ mother), and acting on behalf of themselves and their children, are practicing Hindi. Nevertheless, they allege that their children were placed with foster families who served them beef and took them to Christian religious services, in contravention of the plaintiffs’ religious beliefs. They claim that this violated federal law requiring, as a condition of federal funding for state child welfare plans, a state’s “diligent recruitment of potential foster and adoptive families that reflect the ethnic and racial diversity of children in the State for whom foster and adoptive homes are needed.” 42 U.S.C. § 622(b)(7). The plaintiffs also claim that the foster care placements violated their free exercise rights under the First Amendment to the Constitution. They further claim that, through the foster placements, the defendants violated other statutory requirements for “reasonable efforts” as a condition of federal funding for state foster programs, including “to preserve and reunify families,” id. § 671(a)(15)(B), and “to place siblings removed from their home in the same foster care,” id. § 671(a)(31)(A). Finally, the plaintiffs claim that the defendants negligently inflicted emotional distress on SK.
The defendants, who include the New Hampshire Department of Health and Human Services, its Division for Children, Youth and Families, one of its district offices, and a number of their employees, have moved to dismiss the plaintiffs’ complaint for failure to state a claim.
Following oral argument, the defendants’ motion is granted in part and denied in part. The defendants are correct that the statutory funding requirements invoked by the plaintiffs, which require state foster care plans to provide for “reasonable efforts” or “diligent recruitment,” are not the sort of clear congressional mandates that create privately enforceable rights and therefore cannot provide the basis for relief here. The defendants are also correct that the plaintiffs have failed to allege a claim for negligent infliction of emotional distress on behalf of SK, because they do not allege that any of the defendants owed her a duty. The defendants are incorrect, though, that the plaintiffs have failed to state a statutory basis for recovering for the defendants’ alleged violations of their First Amendment rights, because the amended complaint specifically cites just that vehicle, 42 U.S.C. § 1983.
I. Applicable legal standard
A motion for judgment on the pleadings under Rule 12(c) is evaluated under essentially the same standard as a Rule 12(b)(6) motion for failure to state a claim. See, e.g., Simmons v. Galvin, 575 F.3d 24, 30 (1st Cir.2009). To survive such a motion, the “complaint must contain factual allegations that ‘raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true.’ ” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In determining whether the complaint meets that standard, the court must construe the complaint’s allegations in the light most favorable to the plaintiff, drawing all reasonable inferences in the plaintiffs favor. Id.; see also Perez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 (1st Cir.2008). The following facts are set forth accordingly.
II. Background
BK and SK, who were born in India, “are firm believers of the Hindu faith and actively practice its teachings,” including treating “the cow as sacred” and not “eating beef, eating from cookware or dishes used to serve or cook beef,” or “residing in households in which beef is consumed.” Their minor children, identified as “MG,” “KK,” and “B,” have been “brought up in a home in which the cow was treated as a sacred animal and they have followed their belief throughout their lives.”
At some point (the amended complaint does not say when), the plaintiffs’ children were removed from their home and each was placed with a different foster family. This was accomplished by the DCYF’s Claremont District Office, through its director, Mary-Ann Babic-Keith, one of its assistant directors, Mark Rissala, and two of its social workers, Jeszadiah Eisenberg and Susan Holdsworth. The plaintiffs allege that, though their religious faith was well-known to Rissala, Eisenberg, and Holdsworth, the children were placed with foster families who “did not recognize [their] beliefs and [who], in fact, violated them by cooking, consuming, and serving beef.”
In response, SK “offered to cook and supply food for the children” to eat while in foster care, but, the plaintiffs say, Eisenberg “rejected that offer out of hand.”
The plaintiffs further allege that “two of the children were placed in homes where they were taken to a Christian church almost weekly,” including KK, who was placed in the home of “a minister, who had in the past tried to covert [sic ]” BK. The plaintiffs say that, when they brought this, and their children’s exposure to beef while in foster care, to Rissala’s attention, he claimed there were no other foster homes available — which the plaintiffs find hard to believe because they “reside in an area of New Hampshire which has residents from a multitude of relgions [sic ], cultures and ethnicity [sic ].”
Finally, the plaintiffs allege that SK, in particular, suffered severe emotional distress — requiring her hospitalization — not only over the removal of her children from her home, but through the actions of certain defendants while the children were in their foster placements. In addition to the defendants’ failure to intervene in the foster families’ alleged violations of the childrens’ religious beliefs, as just discussed, the plaintiffs claim that Eisenberg “interfere^]” with the childrens’ visits to SK in the hospital by interrupting their conversations.
The plaintiffs’ amended complaint is in six separately numbered counts:
• violation of the First Amendment by placing the children in foster homes where beef was served (count 1);
• violation of the First Amendment by placing two of the children with foster families who took them to Christian religious services (count 2);
• violation of 42 U.S.C. § 1983 by placing the children in foster homes and with foster families who took them to Christian religious services (count 3);
• violation of 42 U.S.C. §§ 671(a)(15)(B) and 671(a)(31) by failing to make reasonable efforts (i) to preserve and reunify the plaintiffs’ family and (ii) to place the children in the same foster home (count 4);
• violation of 42 U.S.C. § 622(b)(7) by failing to provide for the diligent recruitment of foster families reflecting the ethnic and racial diversity of children in the state needing foster care (count 5); and
• “negligent and reckless infliction of emotional distress” under New Hampshire law (count 6).
The plaintiffs seek compensatory and punitive damages. They do not seek any prospective relief.
III. Analysis
As noted at the outset, the defendants move to dismiss the plaintiffs’ complaint because (A) they allege “no statutory vehicle for redress” of their First Amendment claims, (B) they cannot bring claims under federal statutes that impose requirements on state foster programs receiving federal funding, because those statutes do not create any privately enforceable rights, and (C) they fail to state a claim for negligent infliction of emotional distress. As explained fully infra, the defendants’ second and third arguments are correct, but their first argument is not.
A. The First Amendment claims
The defendants argue that counts 1 and 2, alleging violations of the plaintiffs’ First Amendment rights, fail to state a claim for relief because “the U.S. Constitution does not provide a private right of action,” and
The defendants’ argument for dismissal, then, is obviously not that the plaintiffs cannot bring claims against the defendants under § 1983 for violations of the plaintiffs’ First Amendment rights. So it must be that the plaintiffs have failed to cite § 1983. This was true of the plaintiffs’ original complaint, which contained counts 1 and 2, but not count 3, which, as described supra, specifically makes a claim under § 1983 for the same actions that counts 1 and 2 allege to have violated the plaintiffs’ First Amendment rights. Yet, despite the filing of the amended complaint, see note 1, supra, the defendants have reinstated their motion to dismiss in its entirety, including the argument that the plaintiffs have asserted no statutory vehicle for redress of the alleged First Amendment violations. They were not required to in the first place, see Morales-Vallellanes v. Potter, 339 F.3d 9, 14 (1st Cir.2003) (“A complaint need not point to the appropriate statute or law in order to raise a claim for relief’) (quotation formatting omitted), but in any event they have now. The motion to dismiss counts 1 and 2 on this basis is denied.
B. The statutory claims
The defendants seek to dismiss counts 4 and 5 of the amended complaint, asserting claims against them for violating federal statutes that impose requirements on state foster programs receiving federal funding, namely 42 U.S.C. §§ 671(a)(15)(B), 671(a)(31), and - 622(b)(7), because those statutes do not create any privately enforceable rights. Because there is no express statutory authorization for private citizens to bring suit under any of these provisions, the plaintiffs may do so here only if the statutes imply a private right of action, or create a right enforceable under § 1983. See, e.g., Gonzaga Univ. v. Doe, 536 U.S. 273, 283-84, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002). This court agrees with the defendants that none of the provisions in question here does either.
a. Section 671(a)(15) and (a)(31)
One of the statutes invoked by the plaintiffs, § 671(a), was initially enacted as part of the Adoption Assistance and Child Welfare Act of 1980, which amended certain provisions of the Social Security Act. See Pub. L. 96-272, Tit. 1, § 101(a)(1), 94 Stat. 500, 503 (“AACWA”).
The first of these provisions, § 671(a)(15)(B), requires a state plan to provide for “reasonable efforts shall be made to preserve and reunify families (i) prior to the placement of the child in foster care, to prevent or eliminate the need for removing the child from the child’s home; and (ii) to make it possible for a child to return safely to the child’s home.” As the defendants point out, the Supreme Court held in Suter v. Artist M., 503 U.S. 347, 364, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992), that “42 U.S.C. § 671(a)(15) neither confers an enforceable private right on its beneficiaries nor creates an implied cause of action on their behalf’ and therefore cannot serve as the basis for a private lawsuit.
That is not entirely the end of the story, however. Following the Suter decision, Congress enacted the Improving America’s Schools Act of 1994. See Pub. L. 103-382, 108 Stat. 3518. This act stated, in relevant part, that:
In an action brought to enforce a provision of the Social Security Act, such provision is not to be deemed unenforceable because of its conclusion in a section of the Act requiring a State plan or specifying the required contents of a State plan. This section is not intended to limit or expand the grounds for determining the availability of private actions to enforce State plan requirements other than by overturning any such grounds applied in Suter v. Artist M., [503 U.S. 347] 112 S.Ct. 1360 [118 L.Ed.2d 1] (1992), but not applied in prior Supreme Court decisions respecting such enforceability; provided, however, that this section is not intended to alter the holding in Suter v. Artist M. that section [671(a)(15) ] of the Act is not enforceable in a private right of action.
Id. tit. V, part E, § 555(a), 108 Stat. at 4057-58 (codified at 42 U.S.C. § 1320a-2). As discussed infra, courts have differed on how to apply § 1320a-2 to various provisions of the Social Security Act. They have not differed, however, on how to apply the express statement that § 1320a-2 “is not intended to alter the holding of [Suter] that section [671(a)(15) ] of the Act is not enforceable in a private right of action.” See, e.g., Carson P. ex rel. Foreman v. Heineman, 240 F.R.D. 456, 539 (D.Neb.2007); Jeanine B. ex rel. Blondis v. Thompson, 877 F.Supp. 1268, 1283 (E.D.Wis.1995). That holding, then, is fatal to the plaintiffs’ claim under § 671(a)(15)(B), notwithstanding § 1320a-2. The defendants’ motion to dismiss count 4 insofar as it makes a claim under that section is granted.
The plaintiffs also seek relief under a different provision imposing requirements on state foster care plans as a condition of federal funding, § 671(a)(31). In relevant part, that subsection requires that such a plan:
providef] that reasonable efforts shall be made—
(A) to place siblings removed from their home in the same foster care ... unless the State documents that such a joint placement would be contrary to the safety or well-being of any of the siblings; and
*66 (B) in the case of siblings removed from their home who are not so jointly placed, to provide for frequent visitation or other ongoing interaction between the siblings, unless the State documents that frequent visitation or other ongoing interaction would be contrary to the safety or well-being of any of the siblings[.]
There does not appear to be any case law discussing whether this provision (which is relatively new, having been enacted in 2008, see note 4, supra) implies a private right of action or a right enforceable under § 1983. The defendants argue that § 671(a)(31) does neither. The court agrees.
The Supreme Court has explained that “[a] court’s role in discerning whether personal rights exist in the § 1983 context should ... not differ from its role in discerning whether personal rights exist in the implied right of action context.” Gonzaga, 536 U.S. at 285, 122 S.Ct. 2268. Thus, “where the text and structure of a statute provide no indication that Congress intends to create new individual rights, there is no basis for a private suit, whether under § 1983 or under an implied right of action.” Id. at 286, 122 S.Ct. 2268. Moreover, “if Congress wishes to create new rights enforceable under § 1983, it must do so in clear and unambiguous terms — no less and no more than what is required for Congress to create rights enforceable under an implied private right of action.” Id. at 290, 122 S.Ct. 2268.
As already noted, the Supreme Court held in Suter that “Congress did not intend to create a private remedy for enforcement of the ‘reasonable efforts’ clause” of § 671(a)(15), which “neither confers an enforceable private right on its beneficiaries nor creates an implied cause of action on their behalf.” 503 U.S. at 364, 112 S.Ct. 1360. In reaching this conclusion, the Court relied on the fact that, aside from the text of the provision itself,
[n]o further statutory guidance is found as to how ‘reasonable efforts’ are to be measured. This directive is the only one which Congress has given to the States, and it is a directive whose meaning will obviously vary with the circumstances of each individual case. How the State was left to comply with this directive, and with the other provisions of the Act, was, within broad limits, left up to the State.
Id. at 360, 112 S.Ct. 1360. The Court observed that § 671(a)(15)’s “ ‘reasonable efforts’ clause is not similarly worded” to other provisions in the AACWA that “impose precise requirements on the States.” Id. at 361 n. 12, 112 S.Ct. 1360 (citing, as an example, 42 U.S.C. § 672(e), which disallows federal payments for a child voluntarily placed in foster care for more than 180 days absent a judicial determination that it is in the child’s best interests).
The Court explained that, while it is “well established that Congress has the power to fix the terms under which it disburses federal money to the States” under the Spending Clause of the Constitution, Congress “must do so unambiguously.” Id. at 356, 112 S.Ct. 1360. Thus, the Court noted, it had previously held that a federal statute, setting conditions on the receipt of federal funds, that “did not provide such unambiguous notice to the States” did not, for that reason, “confer an implied cause of action.” Id. (discussing Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 24, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981)).
These observations as to the “reasonable efforts” clause of § 671(a)(15) apply with equal force to the “reasonable efforts” clause of § 671(a)(31). As in the case of § 671(a)(15), the ACCWA provides no guidance apart from the subsection itself on what those “reasonable efforts” entail and, indeed, § 671(a)(31) contains other “directive[s] whose meaning will obviously vary with the circumstances of each individual case,” including an exception for joint sibling placements when they “would be contrary to the safety or well-being of any of the siblings,” and a provision for “frequent visitation or other ongoing interaction between the siblings” if they are not jointly placed. Like § 671(a)(15), then, § 671(a)(31) is in contrast to other provisions of the ACCWA — including other provisions of § 671(a) itself — that impose more precise requirements on states as a condition of federal funding.
Furthermore, while the provisions of § 671(b) relied on by the Suter Court as vesting enforcement authority in the Secretary of Health and Human Services have since been deleted, they were replaced by a provision to essentially the same effect. Social Security Act Amendments of 1994,
Of course, reasoning by analogy to Suter is less than straightforward because of § 1320a-2, the Congressional response to the decision. As one court has observed, “courts have not uniformly interpreted the meaning of § 1320a-2”: some have read it “as requiring lower courts to apply preSuter case law,” while others have rejected that approach. Carson P., 240 F.R.D. at 538 (citing cases). Our court of appeals does not appear to have decided the issue: in a decision in the wake of the statute, the court “assume[d] that Congress intended that § 1320a-2 serve to resurrect the Wilder test, with no Suter overlay,” but did not discuss the issue further. Visiting Nurse Ass’n of N. Shore, Inc. v. Bullen, 93 F.3d 997, 1003 n. 5 (1st Cir.1996).
The plaintiffs themselves seem to endorse the majority interpretation of § 1320a-2.
This clause does not, by its terms, require a return to “pre-Suter case law.” To the contrary, it allows courts to follow Suter except insofar as it applied “grounds for determining the availability of private actions to enforce State plan requirements” not applied in the Court’s prior decisions.
Under this majority interpretation of § 1320a-2, the statute does not prevent this court from concluding, based on the aspects of Suter just discussed at length, that § 671(a)(31) creates no privately enforceable rights. Those aspects of Suter— that the absence of a clear standard and the presence of other enforcement mechanisms in a federal statute indicate that Congress did not intend it to bestow such a right — were left unscathed by § 1320(a)(2), at least under the majority view.
Furthermore, even if § 1320(a)(2) does, as a minority of courts have ruled, require them to “rewind the clock and look to cases prior to Suter to determine the enforceability of other provisions under the [AACWA],” Jeanine B., 877 F.Supp. at 1283, even those Supreme Court cases foreclose the conclusion that § 671(a)(31) creates a privately enforceable right. That much is clear from the Supreme Court’s more recent decision in Blessing v. Freestone, 520 U.S. 329, 340-41, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997), which set forth factors to which the Court has “traditionally looked ... when determining whether a particular statutory provision gives rise to a federal right” — and did so, coincidentally or not, with reference solely to pr e-Suter case law. Of particular relevance here, the Court held that “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,” id. (quoting Wright v. City of Roanoke Redev.
For the reasons already discussed, § 671(a)(31) flunks these tests. First, trying to enforce the right for which the plaintiffs invoke it — ’“reasonable efforts ... to place siblings removed from their home in the same foster care unless the State documents that such a joint placement would be contrary to the safety or well-being of any of the siblings” — would “strain judicial competence,” because the right would be “vague and amorphous.” Second, while the plaintiffs emphasize the mandatory language of § 671(a)(31) — “that reasonable efforts shall be made” — that provision cannot be read in isolation. The section of the Social Security Act empowering the Secretary to enact regulations to review state foster care programs, as discussed supra, allows those regulations to provide for the withholding of funds only if “the program fails substantially to ... conform” with, among other requirements, those of § 671(a). 42 U.S.C. § 1320a-2a(b)(3)(A) (emphasis added).
Taken separately, then,. the inspecific standard of § 671(a)(31) and the “substantial conformity” test used by the Secretary in enforcing it both contraindicate any congressional intent that the provision create privately enforceable rights. Taken together, though, they make that conclusion even stronger. As our court of appeals has observed, finding no privately enforceable right in a Medicaid Act requirement that a state plan “provide such methods and procedures ... to assure that payments are consistent with efficiency, economy, and quality of care,” 42 U.S.C. § 1396a(a)(A)(30), “the generality of the goals and the structure for implementing them suggests [sic] that plan review by the Secretary is the central means of enforcement intended by Congress.” Long Term Care, 362 F.3d at 58 (citing Gonzaga, 536 U.S. at 292, 122 S.Ct. 2268 (Breyer, J., concurring)). Justice Breyer explained in his Gonzaga concurrence that such a scheme expresses a preference for “the expertise, uniformity, widespread consultation, and resulting administrative guidance that can accompany agency decisionmaking” over “the comparative risk of inconsistent interpretations and misincentives that can arise out of an occasional inappropriate application of the statute in a private action.” 536 U.S. at 292, 122 S.Ct. 2268.
Importantly, this reasoning is unaffected by § 1320a-2, even under the minority view that it restricts courts to pre-Suter case law in analyzing Social Security Act provisions for privately enforceable rights. Again, Blessing set forth the relevant requirements for finding such a right — that it be set forth in unambiguous and mandatory terms — solely by reference to the Court’s pre-Suter case law. Long Term
Other courts of appeals have followed suit. The court in Watson v. Weeks, 436 F.3d 1152, 1162-63 (9th Cir.2006), held, while acknowledging § 1320a~2, that another provision of the Medicaid Act (requiring that “a state plan for medical assistance must include reasonable standards for determining eligibility” (parenthetical omitted)) did not create a privately enforceable right because “it is too vague and amorphous for judicial enforcement.”
So, even if § 1320a-2 does require courts to apply only the Supreme Court’s pre-Suter case law in deciding whether provisions of the Social Security Act create privately enforceable rights, that ease law compels the conclusion that § 671(a)(31) does not do so. The provision’s text and surrounding structure simply “provide no indication that Congress intended] to create new individual rights.” Gonzaga, 536 U.S. at 286, 122 S.Ct. 2268. The defendants’ motion to dismiss count 4 insofar as it asserts a claim under that provision is granted.
b. Section 622(b)(7)
For nearly identical reasons, the third section of the Social Security Act invoked by the plaintiffs, 42 U.S.C. § 622(b)(7), also does not create any privately enforceable rights.
The term “diligent recruitment” provides no more guidance or notice to states on what is required of them than the term “reasonable efforts” in §§ 671(a)(15) and (31). Furthermore, like § 671(a)(31), § 622(b)(7) contains other phrases (“potential foster and adoptive families,” “the ethnic and racial diversity of children in the state”) that defy ready definition, or judicial application, but are left undefined by the statute. Also like §§ 631(a)(15) and (31), § 622(b)(7) is contained within a part of the Social Security Act (part E of sub-chapter 4, see note 13, supra) that is enforceable by the Secretary under § 1320a-2a — which, again, limits his ability to withhold funds to cases where “substan
C. The claim for “negligent and reckless infliction of emotional distress”
Finally, the defendants have moved to dismiss the plaintiffs’ claim for “negligent and reckless infliction of emotional distress.” As described in Part II, supra, SK claims that the defendants caused her emotional distress, not only by removing her children from her home, but also by failing to intervene in the foster families’ violations of the children’s religious beliefs, and also by interfering in the children’s visits to her in the hospital. The defendants argue that the plaintiffs have not stated a claim for negligent infliction of emotional distress because, among other things, they have failed to establish that the defendants owed a duty to SK.
The defendants are correct on that point. There is no question that a claim for negligent infliction of emotional distress, like any other negligence claim, demands the existence of a duty from the defendant to the plaintiff. See Corso v. Merrill, 119 N.H. 647, 651-54, 406 A.2d 300 (1979). As this court has previously observed, public agencies and their employees do not acquire a duty to a parent by taking custody of his or her child; they acquire a duty to the child.
IV. Conclusion
For the foregoing reasons, the defendants’ reinstated motion to dismiss (document no. 43) is GRANTED as to counts 4-6 of the amended complaint, but DENIED as to counts 1-3. Because the defendants have already answered the amended complaint, see note 1, supra, the parties shall confer and submit a joint discovery plan as required by Fed.R.Civ.P. 26(f) and L.R. 26.1 by October 14, 2011. The court will not hold a preliminary pretrial conference.
SO ORDERED.
. After the defendants filed their motion to dismiss, the plaintiffs filed a motion to amend their complaint, which the court granted. The defendants then filed an answer to the amended complaint and, the next month, the court granted the plaintiffs’ motion to stay the action so that one of them could find substitute counsel. During the stay, the court denied the defendants' motion to dismiss without prejudice to reinstatement following the stay; after the stay was lifted, the defendants reinstated their motion to dismiss. Accordingly, the court will treat the motion to dismiss the complaint as a motion for judgment on the pleadings, see Rule 12(c), directed at the amended complaint.
. In their original complaint, the plaintiffs had brought claims under the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb ("RFRA”), which the Supreme Court has held unconstitutional as applied to the states, City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). On that basis, the defendants have moved to dismiss those claims in their reinstated motion to dismiss. But the plaintiffs have excluded their RFRA claims from their amended complaint, and say in their reinstated objection to the motion
. The defendants have not challenged — nor has this court considered — whether counts 1 and 2 fail to state a claim for any other reason.
. This provision was later amended as part of the Adoption and Safe Families Act of 1997. See Pub. L. 105-89, tit. I, § 101, 111 Stat. 2115, 2116 (codified at 42 U.S.C. §§ 671(a)(15)(A)-(F)). This amendment added, to the text of § 671(a)(15)(B), a cross-reference to § 671(a)(15)(D), but otherwise left that provision unchanged. The provision was later amended again as part of the Fostering Connections to Success and Increasing Adoptions Act of 2008, which, in relevant part, also added § 671(a)(31). See Pub. L. 110-351, tit. II, § 206, 122 Stat. 3949, 3962 (codified at 42 U.S.C. § 671(a)(31)).
. The Court also distinguished § 671(a)(15) from the statute at issue in Wilder v. Virginia Hospital Ass’n, 496 U.S. 498, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990), which, at the time, "required that Medicaid providers be reimbursed according to rates that the State finds,
. Significantly, where courts have recognized privately enforceable rights under particular sections of § 671(a), those sections set forth more specific requirements. These include § 671(a)(1), which requires a state plan to "provide[] for foster care maintenance payments in accordance with [§ 672] and for adoption assistance in accordance with [§ 673]” and § 671(a)(16), which requires a state plan to "provide[] for the development of a case plan (as defined in [§ 675(1) ]) for each child receiving foster care maintenance payments under the State plan and provide[ ] for a case review system which meets the requirements described in [§ 675(5)(B) ] with respect to each such child.” See, e.g., Lynch v. Dukakis, 719 F.2d 504, 512 (1st Cir.1983) (ruling, pre-Suter, that § 671 (a)(l6) conveys privately enforceable rights); Sam M. ex rel. Elliott v. Chafee, 800 F.Supp.2d 363, 386-88, No. 07-241, 2011 WL 2899213, at *19-*20 (D.R.I. July 20, 2011) (ruling that §§ 671(a)(1) and 671(a)(16) establish privately enforceable rights to a case plan and foster care maintenance payments); Connor B. ex rel. Vigurs v. Patrick, 771 F.Supp.2d 142, 170 nn. 13-14 (D.Mass.2011) (observing that a majority of courts have so concluded). Naturally, this court need not — and does not — decide here whether other provisions of § 671(a) create privately enforceable rights.
. The state plan requirements of § 671(a) are included within Part E of subchapter IV of the Social Security Act. See ACCWA, Pub. L. 96-272, tit. I, § 101(a)(1), 94 Stat. 500.
. Our court of appeals later overruled the holding in Visiting Nurse Ass’n as having been abrogated by the Supreme Court's subsequent decision in Gonzaga. See Long Term Care Pharmacy Alliance v. Ferguson, 362 F.3d 50, 59 (1st Cir.2004).
. In their objection the plaintiffs quote a case — without disagreeing with it — that "the purpose of [§ 1320a-2] was simply to clarify 'that the mere fact that an obligation is couched in a requirement that the State file a plan is not itself sufficient grounds for finding the obligation unenforceable under § 1983' ” (quoting Harris v. James, 127 F.3d 993, 1003 (11th Cir.1997)). They do cite another opinion that they say "appears to apply the Wilder analysis,” but that case expressly did not reach the question of whether the statute there implied a private right of action, and did not even mention § 1320a-2. See Rodriguez ex rel. Rodriguez v. DeBuono, 162 F.3d 56, 61-62 (2d Cir.1998), amended and superseded, 175 F.3d 227 (2d Cir.1999).
. Nor does § 1320a-2 state that there even were any such grounds — -and, indeed, two circuit courts interpreting § 1320a-2 have suggested that there were not. See White v. Chambliss, 112 F.3d 731, 739 n. 4 (4th Cir. 1997); LaShawn A. v. Barry, 69 F.3d 556, 570 (D.C.Cir.1995), vacated and superseded on unrelated grounds, 87 F.3d 1389 (D.C.Cir.1996) (en banc).
. Even in the case of a lack of substantial compliance, the Secretary is empowered to revoke federal funding only after he "afford[s] the State an opportunity to adopt and implement a corrective action plan, approved by the Secretary, designed to end the failure to so conform.” 42 U.S.C. § 1320a-2a(b)(4)(A).
. Watson also distinguished Wilder on the ground that the term "reasonable and adequate,” as the statutory requirement for the states’ rates of reimbursement to Medicaid providers, was "objective and thus judicially manageable because the statute tied it to a benchmark of the 'efficiently and economically operated facility.’ ” 436 F.3d at 1163. The statute at issue in Watson, like § 671(a)(31), contained no similar benchmark. Thus, even without regard to Suter, Wilder does not support the plaintiffs’ position here.
. This provision was enacted as part of the Howard M. Metzenbaum Multiethnic Placement Act of 1994, Pub. L. 103-382, tit. V, part E, § 554, 108 Stat. 4056, 4057.
. While the plaintiffs do not provide any authority that § 622(b)(7) creates privately enforceable rights, this court's research revealed one case coming to that conclusion. See Marisol A. ex rel. Forbes v. Giuliani, 929 F.Supp. 662, 683 (S.D.N.Y.1996). In ruling that § 622(b)(7), as well as provisions of § 671(a) not at issue here, had that effect, the Marisol A. court found that "the language of these provisions is mandatory and sets forth the requirements that the state must meet to be eligible for funding” and that "[n]one of these provisions is so vague and amorphous as to be beyond the competence of this court to enforce.” For the reasons just discussed at length, however, this court disagrees with those findings, at least as they respect § 622(b)(7). It is also worth noting that Marisol A. was decided prior to Gonzaga which, as the court of appeals has pointed out, marked at least "a shift in emphasis” in analyzing statutes for privately enforceable rights. Long Term Care, 362 F.3d at 59.
. The amended complaint does not assert the "negligent or reckless infliction of emotional distress claim” on behalf of any plaintiff but SK (there is a statement to the effect that it "was upsetting” to one of the children, B, when her foster parents declined SK’s advice on how to care for B when she was sick, but none of the defendants is alleged to have participated in that exchange, and the foster parents are not named as defendants).
. The allegation that the defendants were "reckless” in inflicting emotional distress does not substitute for an allegation of any duty to SK. In their objection to the motion to dismiss, the plaintiffs suggest that the defendants' infliction of emotional distress was "intentional,” but that is not the claim pled in the amended complaint.