Fact Sheet: Private Enforcement of the Medicaid Act

Medicaid recipients and applicants may encounter problems when state Medicaid programs do not comply with mandatory requirements of the federal Medicaid Act, 42
U.S.C. §§ 1396-1396v. These individuals may consider a court action to obtain injunctive relief.
This Fact Sheet will provide background and discuss trends affecting private enforcement of the Medicaid Act, focusing on 42 U.S.C. § 1983 (§ 1983). Private
enforcement may also be accomplished through a preemption action grounded in the Supremacy Clause of the United States Constitution. The Medicaid developments in
this area will be addressed in a future Fact Sheet, and the issue is discussed only briefly below.2
The National Health Law Program maintains § 1983 and preemption dockets that chart Medicaid Act enforcement provision-by-provision. Consult these dockets when

considering litigation.

At the time of our Nation?s founding, the constitutional framers worked against the backdrop of English laws and principles. Among these was the ?invariable principle
? that every right, when withheld, must have a remedy, and every injury its proper redress.?3 The Supreme Court?s landmark decision, Marbury v. Madison, reflects this
notion, stating that ?the very essence of civil liberty? is the ?right of every individual to claim the protection of the law, whenever he receives an injury. One of the first duties
of government is to afford that protection.?4 A hundred years later, in 1901, the Court continued to acknowledge this principle, discussing ?free access to the courts? as a
?natural right enforced in the Constitution ? indispensable to a free government,? equivalent to freedom of religion, freedom of speech, and freedom of the press.5
Over the years, private individuals have gone to court when they are being harmed by state actions that are inconsistent with federal law. Some of these laws were enacted by Congress pursuant to the Spending Clause of the United States Constitution, and they make federal funding available to states that agree to operate the funded programs consistent with the requirements of the federal law.6 The Social Security Act, of which Medicaid is a part, is an example of a spending clause enactment. When it added Medicaid to the Social Security Act in 1965, Congress did not include a provision authorizing individuals to enforce the Act in federal court. With Medicaid and other public benefits programs, Congress acted with the understanding that courts would ?provide such remedies as are necessary to make effective the congressional purpose.?7
Thus, early public benefits cases focus on the wrong and the remedy, with little discussion of how the plaintiff was in court in the first place. 8 A number of these cases were filed using 42 U.S.C. § 1983, which provides injured individuals with an express cause of action against state actors who violate ?rights, privileges, or immunities secured by the Constitution and laws.?9


For example, in King v. Smith, the Court allowed enforcement under § 1983 of a ?reasonable promptness? provision of the Social Security Act.10 Invalidating the state law, the Court noted:
There is of course no question that the Federal Government, unless barred by some controlling constitutional prohibition, may impose the terms and conditions upon which its money allotments to the States shall be disbursed, and that any state law or regulation inconsistent with such federal terms and conditions is to that extent invalid.11
Similarly, in Rosado v. Wyman, the Court struck down a state law governing the determination of financial eligibility as conflicting with a federal AFDC provision.12 The Rosado Court employed an analysis of whether the state law violated the federal law and, therefore, whether ?federal funds [were] being allocated and paid in a manner
contrary to that intended by Congress.?13 In addition, the Court stated:
We have considered and rejected the argument that a federal court is without power to review state welfare provisions or prohibit the use of federal funds by the States in view of the fact that Congress has lodged in the Department of HEW [Health, Education and Welfare] the power to cut off federal funds for noncompliance with statutory requirements. We are most reluctant to assume Congress has closed the avenue of effective judicial review to those individuals most directly affected by the administration of its program. . . . [W]e find not the slightest indication that Congress meant to deprive federal courts of their traditional jurisdiction to hear and decide federal questions in this field.14
In Edelman v. Jordan, the Court stated that ?[s]uits in federal court under Section 1983 are proper to secure compliance with the provisions of the Social Security Act on
the part of participating states.?15 Finally, in Maine v. Thiboutot, a 6-3 ruling, the Court assessed § 1983 and held ?the phrase ?and laws? means what it says? and, thus, applies not only to constitutional rights but also to rights defined in federal statutes.16 The Court cautioned that such actions require the plaintiff to assert a violation of a federal ?right,? not merely a violation of federal law.17


Courts have traditionally applied a three-part test to determine whether the federal law at issue creates a federal right: (1) Was the federal law provision in question intended to benefit the plaintiff; (2) Does the provision contain sufficiently specific language so that a court knows what to enforce; and (3) Does the provision create a binding obligation on the state?18 If these questions are answered affirmatively, there is a presumption that the plaintiff can enforce the provision. The defendant can overcome the presumption by showing that Congress has foreclosed resort to § 1983, expressly or by including a comprehensive remedial scheme in the substantive federal law that creates the right.19 This test is often referred to as the Blessing/Wilder test, after Supreme Court cases applying it. Over the years, lower courts applied this test, finding some federal laws created federal rights while others did not.
 Despite this history, not all of the justices have been comfortable with allowing private individuals to enforce spending clause enactments. Just one year after Maine v.
Thiboutot, Justice Rehnquist delivered the opinion of the Court in Pennhurst State School and Hospital v. Halderman.20 While the case concerned the Developmentally
Disabled Assistance and Bill of Rights Act, which is not part of the Social Security Act, the decision established the foundation for the retrenchment in private enforcement that was to follow:
[L]egislation enacted pursuant to the spending power is much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions?. Accordingly, if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously?. In legislation enacted pursuant to the spending power, the typical remedy for state noncompliance with federally imposed conditions is not a private cause of action for noncompliance but rather action by the Federal Government to terminate funds to the State.21
Pennhurst has become a favorite case for a majority of the current Supreme Court Justices. In 2002, the Rehnquist Court issued Gonzaga Univ. v. Doe?accepting attorney John Roberts? arguments in the case against private enforcement.22 The National Health Law Program has discussed this case extensively, so it will only be summarized here.23 Writing for the majority, Chief Justice Rehnquist initially noted that Gonzaga involved a spending clause enactment. Citing Pennhurst, he noted that spending clause programs are similar to contracts, with the typical remedy for a violation of spending clause provisions being termination of funding by the federal agency. Thus, according to the Gonzaga Court, a federal law is not privately enforceable unless Congress has unambiguously manifested its intent to confer individual rights on the program beneficiary. Moreover, the initial inquiry into whether a statute creates a federal right under § 1983 ?is no different from the initial inquiry in an implied right of action case.?24 The provision must contain ?rights- or duty-creating language? and have an individual rather than an aggregate focus.25
Interestingly, while Gonzaga emphasizes the need to discern congressional intent, a provision enacted by Congress specifically to protect private enforcement has
received uneven deference from the lower courts. Congress added 42 U.S.C. § 1320a-2 to recognize that provisions of the Social Security Act are privately enforceable.26 As
written, the amendment requires courts, in Social Security Act cases, to apply the Supreme Court enforcement test that existed prior to 1994. Section 1320a-2 is central
to some decisions allowing private enforcement, but some conservative judges have refused to defer to it.27 Of particular concern is an analysis by Ninth Circuit Court Judge
O?Scannlain in Sanchez v. Johnson which, while pithy, is incorrect. Refusing to allow private enforcement of a Medicaid provision, the decision dismisses § 1320a-2, finding it is ?hardly a model of clarity? and concluding that it does not disturb the reasoning of Pennhurst.28 However, Congress enacted § 1320a-2 specifically to preserve the long history of private enforcement of the Social Security Act, and Pennhurst is not a Social Security Act case.
Medicaid enforcement using § 1983
Gonzaga has generated significant litigation in the six-and-one-half years since it was decided. Most of the litigation has been filed by state attorneys seeking to block
private enforcement of the Medicaid Act.
Lower courts applying Gonzaga in the Medicaid context have tended to view the case as clarifying and narrowing the first part of the enforcement test, with most


1 Produced by the National Health Law Program with a grant from the Nathan Cummings Foundation and the Training Advocacy Support Center (TASC), a division of the National Disabilities Rights Network (NDRN), which is sponsored by the Administration on Developmental Disabilities, the Center for Mental Health Services, the Rehabilitation Services Administration, the Social Security Administration, and the Health Resources Services Administration.
2 For additional background from NHeLP, see, e.g., Jane Perkins, National Health Law Program, 42 U.S.C. § 1983 and Enforcement of the Medicaid Act (December 31, 2008 update) (docket of Medicaid cases routinely updated and published by the National Health Law Program since 1998); National Health Law Program, Trends in Medicaid Enforcement Pursuant to Section 1983 (Nov. 2007); Sarah Somers, National Health Law Program, The Supremacy Clause, Preemption and Enforcement of Medicaid (May 21, 2007) (memorandum and docket); Jane Perkins, National Health Law Program, Using Section 1983 to Enforce Federal Laws, 38 CLEARINGHOUSE REV. J. OF POVERTY L. AND POL. 720 (Mar.-Apr. 2005); John Vail and Jane Perkins, Chipping at the Core of Justice, 40 TRIAL 28 (Apr. 2004) (hereafter Chipping at the Core); National Health Law Program, Update on recent challenges to EPSDT enforceability (Nov. 2004); National Health Law Program, Section 1983 and Private Rights of Action: Court Watch Update (Dec. 31, 2002); National Health Law Program, Q&A: Gonzaga University v. Doe (July 5, 2002).
3 Chipping at the Core, supra n. 1 (quoting William Blackstone, Commentaries on the Laws of England 109 (1765)).
4 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803).
5 Downes v. Bidwell, 182 U.S. 244, 282-83 (1901).
6 See U.S. Const., art. I, § 8, cl. 1.
7 J.I. Case Co. v. Borak, 377 U.S. 426, 433 (1964). See, e.g., n. 2-4, supra. But see Alexander v. Sandoval, 532 U.S. 275, 287 (2001) (finding that understanding to have been abandoned and noting that ?[h]aving sworn off the habit of venturing beyond Congress?s intent, we will not accept respondent?s invitation to have one last drink.?).
8 For additional discussion, see, e.g. Brief of Plaintiffs-Appellants, Westside Mothers v. Haveman, No. 01-1494 (6th Cir. Aug. 31, 2001); Sarah Somers, National Health Law Program, The Supremacy Clause, Preemption and Enforcement of Medicaid (May 21, 2007).
9 42 U.S.C. § 1983 states:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
10 392 U.S. 309 (1968).
11 Id. at 333.
12 397 U.S. 397 (1970).
13 Id. at 421.
14 Id. at 421, 422.
15 415 U.S. 651, 675 (1974).
16 448 U.S. 1, 6-8 (1980) (enforcing a Social Security Act provision). See also, e.g., Wilder v. Virginia Hosp. Ass?n, 496 U.S. 498 (1990) (allowing private enforcement of a Medicaid Act provision concerning payment for institutional services). But compare Brief for the United States as Amicus Curiae Supporting Petitioners, Wilder v. Virginia Hosp. Ass?n (1990) (argument from Deputy Solicitor General John Roberts arguing Pennhurst precluded enforcement under § 1983).
17 Golden State Transit Corp. v. City of Los Angeles, 493 U.S. U.S. 103, 106 (1989). See also Blessing v. Freestone, 520 U.S. 329, 340 (1997) (citing Golden State Transit).
18 Blessing, 520 U.S. 329; Wilder, 496 U.S. at 509.
19 As recently as 2005, the Court reiterated that the Medicaid Act does not include a comprehensive remedial scheme See City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 121-22 (2005) (including Wilder and Medicaid in a list of cases concerning statutes whose enforcement is not foreclosed).
20 451 U.S. 1 (1981).
21 Id. at 17, 28.
22 536 U.S. 273 (2002) (refusing to allow § 1983 enforcement of a Federal Educational Rights and Privacy Act provision that prohibited federal funding to any entity with a policy or practice of permitting the release of private records without written consent of the student/parent).
23 See, n. 1, supra.
24 Gonzaga, 536 U.S. at 279.
25 Id.
26 42 U.S.C. §§ 1320a-2 (repeated at § 1320a-10) states:
In an action brought to enforce a provision of the Social Security Act, such provision is not to be deemed unenforceable because of its inclusion 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, 112 S.Ct. 1360 (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 471(a)(15) of the Act is not enforceable in a private right of action. The amendment overruled parts of Suter v. Artist M., 503 U.S. 347 (1992), which appeared to hold that plaintiffs only enforceable right for the state to have a written plan. Id. at 358.
27 Compare Rabin v. Wilson-Coker, 362 F.3d 190 (2d Cir. 2004) (citing § 1320a-2 to allow beneficiaries to enforce a Medicaid Act provision); S.D. v. Hood, 391 F.3d 581, 603 (5th Cir. 2004) (same) with Sanchez v. Johnson, 416 F. 3d 1051, 1057 (9th Cir. 2005).
28 Sanchez, 416 F.3d at 1057 n.5 (citing Pennhurst, 451 U.S. 1, 28 (1981)).

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