Doe v. Kidd

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

SUE DOE, 
Plaintiff-Appellant,
v.
LINDA KIDD; STAN BUTKUS; KATHI
LACY; SOUTH CAROLINA  No. 05-1570
DEPARTMENT OF DISABILITIES AND
SPECIAL NEEDS; ROBERT KERR; SOUTH
CAROLINA DEPARTMENT OF
HEALTH AND HUMAN SERVICES,
Defendants-Appellees.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Margaret B. Seymour, District Judge.
(CA-03-1918)

Argued: May 24, 2007

Decided: September 19, 2007

Before KING and GREGORY, Circuit Judges,
and Frank D. WHITNEY, United States District Judge for the
Western District of North Carolina, sitting by designation.

Affirmed in part, vacated in part, and remanded by published opinion.
Judge Gregory wrote the opinion, in which Judge King concurred.
Judge Whitney wrote a separate opinion concurring in the judgment
in part and dissenting in part.
2 DOE v. KIDD
COUNSEL

ARGUED: Patricia L. Harrison, Columbia, South Carolina, for
Appellant. Kenneth Paul Woodington, DAVIDSON, MORRISON &
LINDEMANN, P.A., Columbia, South Carolina, for Appellees. ON
BRIEF: William H. Davidson, II, DAVIDSON, MORRISON &
LINDEMANN, P.A., Columbia, South Carolina, for Appellees.

OPINION

GREGORY, Circuit Judge:

Sue Doe, who has developmental disabilities including epilepsy,
mild mental retardation, and cerebral palsy, filed this action concern-
ing her application for Medicaid services from the state of South Car-
olina. The district court granted summary judgment to Appellees: the
South Carolina Department of Disabilities and Special Needs, the
South Carolina Department of Health and Human Services, and vari-
ous officials at the helm of the two departments. Because Doe’s two
claims on appeal are not, as the district court found, moot, but one of
her claims nonetheless fails as a matter of law, we affirm in part and
vacate and remand in part.

I.

Medicaid is an optional, federal-state program through which the
federal government provides financial assistance to states for the
medical care of needy individuals. Wilder v. Va. Hosp. Ass’n, 496
U.S. 498, 502 (1990). Once a state elects to participate in the pro-
gram, it must comply with all federal Medicaid laws and regulations.
Id. The South Carolina Department of Health and Human Services
("DHHS") is the state agency responsible for administering and super-
vising Medicaid programs in South Carolina. The South Carolina
Department of Disabilities and Special Needs ("DDSN") has specific
authority over the state’s treatment and training programs for people
with mental retardation and related disabilities.

This case involves the Medicaid waiver program created by 42
U.S.C. § 1396n(c) (2000), which permits states to waive the require-
 DOE v. KIDD 3
ment that persons with mental retardation or a related disability live
in an institution in order to receive certain Medicaid services. See
generally Bryson v. Shumway, 308 F.3d 79, 82 (1st Cir. 2002) ("[The
program] allow[s] states to experiment with methods of care, or to
provide care on a targeted basis, without adhering to the strict man-
dates of the Medicaid system."). When an individual in South Caro-
lina applies for DDSN services, including the waiver program, DHHS
first determines whether the individual is eligible for Medicaid fund-
ing. Thereafter, DDSN determines whether the individual is eligible
for DDSN services and, if so, what "level of care" the individual
requires. To be given the option under the waiver program of receiv-
ing services at home or in the community, rather than in an institution,
individuals must first qualify for the Intermediate Care Facility for the
Mentally Retarded ("ICF/MR") level of care—that is, they must meet
the criteria necessary to reside in an institution like a nursing home.
If approved, waiver services are provided in a variety of settings
including, in order of restrictiveness: (1) a Supervised Living Program
II ("SLP II"), an apartment where recipients of DDSN services live
together; (2) a Community Training Home I ("CTH I"), a private fos-
ter home where a recipient of DDSN services resides with a family,
one member of whom is a trained caregiver; and (3) a Community
Training Home II ("CTH II"), a group home with live-in caregivers
for four or fewer recipients of DDSN services. Appeals from DDSN
decisions about the services, if any, it will provide are taken to a
DHHS hearing officer and, after that, to the state of South Carolina’s
Administrative Law Judge Division.

Doe applied for services under DDSN’s waiver program in July
2002, after previous requests for DDSN services had been denied in
2000 and 2001. In December 2002, without making a determination
as to Doe’s eligibility for the waiver program, DDSN placed Doe on
the non-critical waiting list for the program. Doe appealed this deci-
sion to DHHS, adding a claim that DDSN failed to serve her within
a reasonable amount of time as required by federal regulations. While
the appeal was pending, DDSN moved Doe to the top of the critical
waiting list for the program and developed a plan of care for her,
which largely involved her living at home with her mother where she
would receive various in-home services. DDSN then moved to dis-
miss Doe’s appeal.
4 DOE v. KIDD
At the March 2003 hearing on DDSN’s motion to dismiss, Doe
conceded that DDSN had moved her to the top of the critical waiting
list and had found her eligible for services under the waiver program
earlier that month. Finding that all the appealed issues had already
been resolved in Doe’s favor, the DHHS hearing officer dismissed
Doe’s appeal. Doe did not appeal the dismissal to the state’s Adminis-
trative Law Judge Division. At the end of March, however, Doe
learned that she had been terminated from the waiver program. She
requested a hearing on this decision and, several months later, learned
that her Medicaid eligibility was to terminate as well (although it
never did).

During May and June of 2003, Doe requested another hearing on
the grounds that she had not yet received the services promised by
DDSN in her plan of care. DDSN protested that Doe’s family was not
cooperating in availing themselves of those services. The DHHS hear-
ing officer held Doe’s request for an appeal in abeyance because he
considered Doe’s Medicaid eligibility to be in question. Doe had also
demanded immediate CTH I or CTH II residential placement (rather
than continued in-home services), with a provider of her choice,
because her mother, whose mental health was rapidly declining, was
no longer able to care for her and was moving out of state without
Doe. Doe voiced her opposition to DDSN’s chosen provider for resi-
dential services, the Babcock Center, based on reports that the center
had a history of abusing and neglecting residents. In response to
Doe’s petitions, DDSN requested proof of her critical family circum-
stances before taking action.

On June 9, 2003, Doe filed this action, alleging violations of the
Medicaid Act, 42 U.S.C. §§ 1396-1396v, the Americans with Disabil-
ities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327 (codified as
amended in scattered sections of 42 U.S.C.), and various state laws.
Only two of Doe’s original seven claims are at issue here: (1) a claim
under 42 U.S.C. § 1983 that Appellees "have deprived Doe of Medic-
aid services—namely, residential habilitation services and freedom of
choice of providers of those services" and (2) a claim that Appellees
have "failed to provide with reasonable promptness the residential
habilitation and other Medicaid services Doe has requested since
2000" in violation of § 1396a(a)(8) of the Medicaid Act. Doe sought
an order directing DDSN to provide her with residential habilitation
 DOE v. KIDD 5
services from the provider of her choice, payment of her medical
expenses, and fees and costs.

On July 2, 2003, Doe filed a motion for a preliminary injunction
seeking relief substantially similar to that requested in her complaint.
Doe’s mother had by then left South Carolina, and her father was
unable to take her into his home. Accordingly, shortly after the hear-
ing on the motion for a preliminary injunction, DDSN placed Doe in
a CTH II (group home) facility in Newberry, South Carolina, where
she received respite (or temporary) services. DDSN maintains that it
did so because of Doe’s family circumstances, not because she was
qualified for that most-restrictive setting; in fact, DDSN found Doe
to need a CTH I (foster home) or SLP II (apartment) setting. Doe con-
tinues to reside at the Newberry facility. In light of Doe’s placement
at Newberry, the district court denied Doe’s motion for preliminary
injunctive relief.

Appellees then moved for summary judgment. At a hearing on the
motion in September 2004, Doe explained that she had consistently
requested CTH II residential habilitation services in her home com-
munity, near Columbia, South Carolina. Doe explained that she could
not avail herself of these providers until DDSN approved the place-
ment, yet DDSN would only approve a CTH I placement. Doe further
explained that, although DDSN ultimately found her eligible for the
waiver program and is now providing her with CTH II residential ser-
vices, DDSN considers Doe’s current CTH II placement at Newberry
temporary and has acknowledged that Doe may be moved out of resi-
dential facilities altogether depending on the setting DDSN ultimately
finds her to require. Doe therefore argued against summary judgment
on the grounds that she has never received the residential services she
requested by the provider she chose, nor a fair hearing on the merits,
and that she is being threatened with termination of services alto-
gether. Doe admitted at the hearing that she had already prevailed on
three causes of action in her complaint.

On December 9, 2004, the district court dismissed as moot three of
Doe’s causes of action—including the two on appeal here—on the
grounds that at the hearing on the motion for summary judgment, Doe
admitted that she had already received the relief requested in those
counts. The district court granted summary judgment to Appellees on
6 DOE v. KIDD
Doe’s remaining four counts and denied her request for attorney’s
fees and for reconsideration. Doe has appealed, asking us to deter-
mine (1) whether her claim that Appellees have deprived her of her
right to reasonably prompt residential habilitation services is moot
because Appellees have provided Doe with temporary services, and
(2) whether her claim that she has been denied the freedom of choice
of qualified providers of Medicaid services is moot when Appellees
have provided her services from a provider they, and not Doe, chose.
We review the district court’s summary judgment ruling de novo,
viewing the facts in the light most favorable to Doe as the non-
moving party and drawing all reasonable inferences in her favor. See
Varghese v. Honeywell Int’l, Inc., 424 F.3d 411, 416 (4th Cir. 2005).1

II.

Doe first appeals the district court’s decision to dismiss as moot her
§ 1983 claim that Appellees violated the Medicaid Act by providing
her with temporary respite services instead of providing her, with rea-
sonable promptness,2 the residential habilitation services approved in
her 2003 plan of care.3 Section 1396a(a)(8) of the Act requires that
state "medical assistance . . . be furnished with reasonable promptness
to all eligible individuals." Federal regulations direct state agencies to
1
There have been state administrative proceedings in Doe’s case since
she noted her appeal to this Court. We do not consider the outcome of
these proceedings because the outcome has no effect, preclusive or other-
wise, on the issues Doe raises before this Court.
2
Given the paucity of references to "reasonable promptness" in Doe’s
appellate brief, Appellees argue that Doe has abandoned this issue on
appeal. We are able to discern Doe’s claim from her brief and therefore
disagree.
3
Respite services and residential habilitation services are distinct.
Respite care, which Doe is currently receiving, "is furnished on a short-
term basis due to the regular care giver’s absence or need for relief."
Benjamin H. v. Ohl, No. 3:99-0338, 1999 WL 34783552, at *2 (S.D. W.
Va. July 15, 1999). Residential habilitation, which Doe has requested,
"helps recipients with the skills needed for daily living, such as eating
and performing personal hygiene, household chores, and food prepara-
tion. It also focuses on the social and adaptive skills which enable an
individual to avoid institutionalization." Id. at *3.
 DOE v. KIDD 7
determine an applicant’s eligibility for Medicaid within ninety days
of the date of application and to "[f]urnish Medicaid promptly to
recipients without any delay caused by the agency’s administrative
procedures." 42 C.F.R. §§ 435.911, 435.930 (2002).

Appellees argue that Doe’s reasonable promptness claim is moot
because Appellees began providing Doe with some services before
the DHHS hearing on their motion to dismiss, and certainly before the
federal court hearing on their motion for summary judgment. More-
over, Appellees argue, Doe conceded the claim’s "mootness" by
answering in the affirmative when the district court asked her whether
she had already prevailed on this claim at the DHHS hearing.

A.

A case is moot "when the issues presented are no longer ‘live’ or
the parties lack a legally cognizable interest in the outcome." Powell
v. McCormack, 395 U.S. 486, 496 (1969). Where, as here, a defen-
dant’s voluntary conduct is the basis for the potential mootness, it is
"well settled that [the] defendant’s voluntary cessation of a challenged
practice does not deprive a federal court of its power to determine the
legality of the practice unless it is absolutely clear that the allegedly
wrongful behavior could not reasonably be expected to recur."
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528
U.S. 167, 189 (2000) (quotation marks and citations omitted). Here,
Doe challenges Appellees’ failure to provide her with residential
habilitation services promptly. Viewing the facts in the light most
favorable to Doe, Appellees have not yet voluntarily ceased this con-
duct: by their own admission, Doe is "only in this Newberry CTH II
for respite [services] or until her true status is determined." J.A. 384.
Therefore, the issues presented in Doe’s reasonable promptness claim
continue to be live and the parties continue to have a legally cogniza-
ble interest in the outcome.

A separate question is whether, by agreeing with the district court
that she "prevailed" on her reasonable promptness claim (without so
much as probing the district court’s usage of the term "prevail" or
explaining to the court the breadth of her claim, as she has done
before this Court) and now seeks only attorney’s fees, Doe waived her
claim. "[F]ederal law is well-settled that waiver is the voluntary and
8 DOE v. KIDD
intentional relinquishment of a known right, and courts have been dis-
inclined lightly to presume that valuable rights have been conceded
in the absence of clear evidence to the contrary." United States v.
Stout, 415 F.2d 1190, 1192-93 (4th Cir. 1969). Doe’s summary judg-
ment and appellate briefs make clear that, whatever misstatements or
understatements she made during the summary judgment hearing, she
did not intend to relinquish her right to have the district court consider
her reasonable promptness claim on its merits. We find that her
exchange with the district court at the summary judgment hearing did
not constitute a waiver of the claim.

B.

Having determined that Doe’s reasonable promptness claim is nei-
ther moot nor waived, we consider whether Doe may enforce
§ 1396a(a)(8) through a § 1983 action. Appellees argue that she may
not because Congress provided a comprehensive remedial scheme for
individual state Medicaid cases, thereby precluding § 1983 as a means
of review. The district court, having dismissed Doe’s claim as moot,
did not reach this question.4

Section 1983 imposes liability on any person who, under the color
of state law, deprives another person "of any rights, privileges, or
immunities secured by the Constitution and laws." Some statutes fore-
close private enforcement by § 1983. In absence of an "express provi-
sion or other specific evidence from the statute itself that Congress
intended to foreclose such private enforcement[,]" the Supreme Court
will find "private enforcement foreclosed only when the statute itself
creates a remedial scheme that is sufficiently comprehensive . . . to
demonstrate congressional intent to preclude the remedy of suits
under § 1983." Wilder, 496 U.S. at 520-21 (quotation marks and cita-
tions omitted).

Using this rule, the Supreme Court has decided that at least one
provision of the Medicaid Act does not preclude individual enforce-
ment through a § 1983 action. In Wilder, the Court observed that only
4
The district court did decide that § 1396a(a)(30), a freedom of choice
provision that Doe does not raise in this appeal, does not create an indi-
vidual right enforceable under § 1983.
 DOE v. KIDD 9
twice has it found "a remedial scheme established by Congress suffi-
cient to displace the remedy provided in § 1983." Id. at 521 (citing
Smith v. Robinson, 468 U.S. 992 (1984), and Middlesex County Sew-
erage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1 (1981)). The
Court subsequently concluded that "[t]he Medicaid Act contains no
comparable provision for private judicial or administrative enforce-
ment." Id. It therefore allowed health care providers to sue the Com-
monwealth of Virginia under § 1983 for violating a provision of the
statute, § 1396a(a)(13)(A), regarding reimbursement for providers.
Fifteen years later, the Supreme Court cited Wilder when it listed the
Medicaid Act as an example of a federal statute for which § 1983 is
available, given that the statute does not provide a private judicial
remedy for rights that have been violated. See City of Rancho Palos
Verdes v. Abrams, 544 U.S. 113, 121-22 (2005).

Because Wilder involved a provision of the Medicaid Act very dif-
ferent from the provision at issue here, we analyze the provision Doe
invokes, § 1396a(a)(8), according to the guidelines set forth in Bless-
ing v. Freestone, 520 U.S. 329 (1997), to determine whether that pro-
vision creates a private right enforceable under § 1983. See Blessing,
520 U.S. at 342 (noting the importance of "distinguishing among the
numerous rights that might have been created by [the] federally
funded" program at issue). Blessing listed three factors that this Court
must consider in determining whether a statutory provision gives rise
to an individual 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 unam-
biguously 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). Even when the presence of these
three factors creates a presumption that a statutory provision gives
rise to an individual right, we must consider whether Congress
expressly or impliedly foreclosed a remedy under § 1983. See Bless-
ing, 520 U.S. at 341. As a rule, "where the text and structure of a stat-
10 DOE v. KIDD
ute provide no indication that Congress intend[ed] to create new
individual rights, there is no basis for a private suit." Gonzaga Univ.
v. Doe, 536 U.S. 273, 286 (2002). This is so because "rights, not the
broader or vaguer ‘benefits’ or ‘interests,’ [are to] be enforced under
the authority of [§ 1983]." Id. at 283.

Applying the Blessing test to the reasonable promptness provision
found in § 1396a(a)(8), we conclude that the provision gives rise to
a right enforceable under § 1983.5 First, the provision is expressly
intended to benefit "all" individuals eligible for Medicaid assistance,
a group that, the parties do not dispute, includes Doe. See
§ 1396a(a)(8). Second, the provision is not so "vague and amorphous"
that the judiciary cannot competently enforce it: the provision is clear
that the standard for informing applicants of their eligibility for Med-
icaid services is "reasonable promptness" and the relevant federal and
state regulations and manuals define reasonable promptness as forty-
five days or ninety days, depending on the applicant. See, e.g., 42
C.F.R. § 435.911; South Carolina Medicaid Manual, cited at J.A. 242;
United States Department of Health & Human Services Center for
Medicaid and State Operations, Olmstead Update No: 4, at J.A. 290.
Third, the provision uses mandatory rather than precatory terms: it
states that plans "must" provide for assistance that "shall" be deliv-
ered with reasonable promptness. See § 1396a(a)(8).

Finally, the Medicaid Act does not explicitly forbid recourse to
§ 1983. Wilder, 496 U.S. at 521. Nor does the Act impliedly forbid
such recourse: although the Act provides that states should adopt a
fair hearing process, the Act does not contain a "comprehensive
enforcement scheme that is incompatible with individual enforcement
under § 1983." Blessing, 520 U.S. at 341 (emphases added). The stat-
ute merely requires state plans "to provide for granting an opportunity
for a fair hearing before the State agency [responsible for the Medic-
5
Section 1396a(a)(8) provides:
A State plan for medical assistance must—
(8) provide that all individuals wishing to make application for
medical assistance under the plan shall have opportunity to do
so, and that such assistance shall be furnished with reasonable
promptness to all eligible individuals . . . .
 DOE v. KIDD 11
aid program] to any individual whose claim for medical assistance
under the plan is denied or is not acted upon with reasonable prompt-
ness," § 1396a(a)(3), and generally states that the United States Secre-
tary of Health and Human Services should withhold future Medicaid
payments to states that fail to comply with § 1396a of the Act, see
§ 1396c. Medicaid regulations regarding the fair hearing process are
more extensive, but they are not incompatible with § 1983 enforce-
ment. See 42 C.F.R. § 431.200-250 (2002); Blessing, 520 U.S. at 348
(commenting specifically upon the "limited state grievance proce-
dures for individuals" in the Medicaid Act); id. (holding that "a plain-
tiff’s ability to invoke § 1983 cannot be defeated simply by [t]he
availability of administrative mechanisms to protect the plaintiff’s
interests" (alteration in original and quotation marks omitted));
accord Wilder, 496 U.S. at 521, 523.

We note that three circuits have engaged in similar analysis of
§ 1396a(a)(8) and reached the same conclusion. See Sabree ex rel.
Sabree v. Richman, 367 F.3d 180, 183 (3rd Cir. 2004) (holding that
an analysis based upon Gonzaga, Blessing, and other cases "compels
the conclusion that the provisions invoked by plaintiffs—42 U.S.C.
§§ 1396a(a)(8), 1396a(a)(10), and 1396d(a)(15)—unambiguously
confer rights vindicable under § 1983"); Bryson v. Shumway, 308
F.3d 79, 88-89 (1st Cir. 2002) (holding that § 1396a(a)(8) is enforce-
able by Medicaid recipients under § 1983); Doe ex rel. Doe v. Chiles,
136 F.3d 709, 714 (11th Cir. 1998) (same).6 In sum, Doe may proceed
under § 1983 to address any failure by Appellees to comply with the
reasonable promptness provision of the Medicaid Act. Because her
claim is neither moot nor waived, we vacate the district court’s dis-
missal of her claim and remand for further proceedings.

III.

Doe next appeals the district court’s decision to dismiss as moot
her § 1983 claim that Appellees violated the freedom of choice provi-
sion in § 1396a(a)(23) of the Medicaid Act. That provision requires
6
We have once before declined to dismiss a § 1983 action seeking to
enforce § 1396a(a)(8), among other provisions of the Medicaid Act, but
we did so on the unrelated ground of sovereign immunity. Antrican v.
Odom, 290 F.3d 178, 191 (4th Cir. 2002).
12 DOE v. KIDD
state Medicaid plans to provide that any recipient of Medicaid assis-
tance "may obtain such assistance from any institution, agency, com-
munity pharmacy, or person, qualified to perform the service or
services required . . . who undertakes to provide him such services."
§ 1396a(a)(23). In short, the provision "gives recipients the right to
choose among a range of qualified providers, without government
interference." O’Bannon v. Town Court Nursing Ctr., 447 U.S. 773,
785 (1980) (emphasis omitted).

Doe contends that Appellees have violated this provision by refus-
ing to approve her for placement at her choice of a CTH II facility
in her home community. Doe is not mollified by her current place-
ment at a CTH II facility in Newberry because Newberry is not her
home community and because DDSN has admitted that it placed her
there only temporarily because of her family circumstances, not
because of her actual need for a CTH II setting.

A.

Aside from a reference in a string citation to § 1902(23) of the
Social Security Act, which is the same provision as § 1396a(a)(23) of
the Medicaid Act, Doe did not cite § 1396a(a)(23) below. This appeal
marks the first time Doe cites § 1396a(a)(23) specifically. Citing our
rule that "issues raised for the first time on appeal are generally not
considered absent exceptional circumstances," Wheatley v. Wicomico
County, 390 F.3d 328, 334 (4th Cir. 2004), Appellees argue that this
Court should not consider Doe’s claim.

Doe, however, has not raised a "new theory at the eleventh hour"
or made "a last-minute switch in strategy," the type of tactics this
Court’s rule is designed to discourage. Id. at 335. Below, Doe did not
cite the provision of the Medicaid Act upon which she relies, but her
complaint did claim that Appellees have denied her the right to
choose among providers and she did argue that claim before the dis-
trict court.

Moreover, the district court did "pass upon" Doe’s freedom of
choice claim, albeit without reference to § 1396a(a)(23). Cf. Bakker
v. Grutman, 942 F.2d 236, 242 (4th Cir. 1991) ("Generally, a federal
appellate court may not consider an issue which was not passed upon
 DOE v. KIDD 13
by the trial court."). At the hearing on Appellees’ motion for summary
judgment, the court repeatedly sought confirmation that Doe’s posi-
tion was that she had been denied the right to move into the CTH II
facility of her choice. The court asked both parties whether Doe,
Doe’s treatment team, or DDSN had the right to choose among the
various settings for rehabilitation services, and on what authority the
parties relied for their divergent points of view. The court also
inquired whether Doe had taken the proper procedural steps in
requesting a specific placement by DDSN and whether the court had
jurisdiction to review DDSN’s determination that Doe required a
CTH I setting.

We will not, therefore, refuse to consider Doe’s freedom of choice
claim on the ground that the question was not considered below. The
record is clear that the district court considered the claim and simply
determined that it was moot.

B.

We find that Doe’s freedom of choice claim is not moot, but lacks
merit. Doe’s position is that once DDSN finds her to qualify for the
ICF/MR level of care, she has a choice among the qualified providers
operating the various settings that are alternatives to living in an insti-
tution (e.g., a SLP, CTH I, or CTH II setting). Because DDSN has
consistently relayed to her that it will approve funding only for a CTH
I setting and not a CTH II setting, Doe maintains that she is being
denied her right to choose among qualified providers.

The record does not support Doe’s position. As noted earlier,
DDSN determines whether a recipient qualifies for the ICF/MR level
of care. Then, after the recipient exercises his or her right to choose
home-based and community-based services rather than ICF/MR ser-
vices (that is, services in an institution or nursing home), DDSN
determines which setting will meet the recipient’s needs—here, Doe’s
need for residential habilitation services—whether it be an apartment
(SLP I), a foster home (CTH I), or a group home (CTH II). DDSN
must determine the services required because it must insure that it
meets the needs of the recipient and that it places the recipient in the
least restrictive environment, as required by state and federal law.
See, e.g., Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999); S.C.
14 DOE v. KIDD
Code Ann. § 44-20-20 (2006). The Associate Director of DDSN
swore out an affidavit stating that DDSN selects the appropriate set-
ting, a 2003 letter from the General Counsel of DDSN confirms as
much, and an official from DDSN testified to the same at the hearing
on Doe’s motion for a preliminary injunction.

Doe has presented nothing that would contradict this evidence. Her
counsel’s testimonial argument that, in her ten years’ experience, the
recipient and his or her family, rather than DDSN, choose the appro-
priate setting is unavailing. The cases Doe cites for the proposition
that the Medicaid Act empowers recipients to choose among CTH I,
CTH II, and SLP settings—Olmstead and Antrican v. Odom, 290 F.3d
178 (4th Cir. 2002)—do not stand for that proposition. Further, Doe
has not cited any statutory provision, regulation, or policy directive
stating that she has a right to choose among various settings—or, as
she terms it, levels of service—and she has not presented a witness
to testify as much. Section 1396n of the Act merely requires states to
inform participants in the waiver program of "the feasible alterna-
tives, if available under the waiver, at the choice of individuals, to the
provision of . . . services in an intermediate care facility for the men-
tally retarded." § 1396n(c)(2)(C) (emphases added). The only choice
referred to in the Medicaid regulations Doe placed into the record is
a choice between institutional or home-based and community-based
services as a part of the waiver program, a choice that Doe has
already been given. See 42 C.F.R. § 441.302(d)(2) (2002). She chose
the latter. Finally, the one policy manual in the record, a 2001 United
States Department of Health and Human Services update for states,
supports Appellees’ position that DDSN, and not Doe, determines the
appropriate setting for her services. The manual states:

A State is obligated to provide all people enrolled in the
waiver with the opportunity for access to all needed services
covered by the waiver and the Medicaid State plan. . . . This
does not mean that all waiver participants are entitled to
receive all services that theoretically could be available
under the waiver. The State may control procedures based
on the need that individuals have for services covered under
the waiver. An individual’s right to receive a service is
dependent on a finding that the individual needs the service,
 DOE v. KIDD 15
based on appropriate assessment criteria that the State devel-
ops and applies fairly to all waiver enrollees.

J.A. 289-90. Thus, we are left to conclude that DDSN selects the
appropriate setting for the provision of waiver services. Once a setting
is selected, recipients have a choice of qualified providers among
those who offer services in the setting DDSN has approved; this is the
freedom of choice that 1396a(a)(23) guarantees.

In this case, at the time of the summary judgment proceedings,
DDSN had consistently evaluated Doe as needing a CTH I setting.7
Therefore, Doe had a right to choose among providers of CTH I ser-
vices, not a right to choose to live in any CTH II setting she wished.
Cf. Kelly Kare, Ltd. v. O’Rourke, 930 F.2d 170, 178 (2d Cir. 1991)
(reading O’Bannon as holding that a Medicaid recipient’s freedom of
choice rights are necessarily dependent on a provider’s ability to ren-
der services). Doe currently resides in a CTH II facility at Newberry
but, as stated above, DDSN made this placement because her case
became an emergency one, not because DDSN determined that a
CTH II setting was appropriate. Cf. O’Bannon, 447 U.S. at 786
("[W]hile a patient has a right to continued benefits to pay for care
in the qualified institution of his choice, he has no enforceable expec-
tation of continued benefits to pay for care in an institution that has
been determined to be unqualified.").

Section 1396a(a)(23) "is clearly drawn to give Medicaid recipients
the right to receive care from the Medicaid provider of their choice,
rather than the government’s choice." Silver v. Baggiano, 804 F.2d
1211, 1217 (11th Cir. 1986), abrogated on other grounds by Lapides
v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613 (2002). Appellees
have not violated this provision: Doe has a choice of providers, so
7
The March 2003 plan of care that Doe, Doe’s family, and DDSN offi-
cials developed noted her desire to be in "a residential setting location
within the Columbia area chosen by the family" and to have United
Cerebral Palsy, a CTH II provider, as her provider. J.A. 179. But the plan
did not indicate whether Doe would be sent to a CTH I or CTH II facility
and, if so, who would select between the two types of settings. The rec-
ommendation in the plan of care merely stated that Doe "will receive res-
idential habilitation from a DDSN approved provider." J.A. 179.
16 DOE v. KIDD
long as the provider operates a CTH I facility, the kind of setting
DDSN has determined would constitute the least restrictive environ-
ment for Doe. We therefore affirm, but on different grounds, the dis-
trict court’s dismissal of Doe’s freedom of choice claim. See
Eisenberg v. Wachovia Bank, N.A., 301 F.3d 220, 222 (4th Cir. 2002)
(observing that we "can affirm on any basis fairly supported by the
record").

C.

Because Doe’s freedom of choice claim fails as matter of law, we
do not find it necessary to decide whether § 1396a(a)(23) confers a
private right on individuals that may be enforced under § 1983. Even
assuming Doe may proceed under § 1983 to enforce § 1396a(a)(23),
Appellees are entitled to summary judgment on Doe’s claim. Cf.
Burks v. Lasker, 441 U.S. 471, 475-76 (1979) (holding that the "ques-
tion whether a cause of action exists is not a question of jurisdiction,
and therefore may be assumed without being decided").

IV.

For the foregoing reasons, we affirm the district court’s grant of
summary judgment in Appellees’ favor on Doe’s freedom of choice
claim, vacate the district court’s grant of summary judgment on Doe’s
reasonable promptness claim, and remand for further proceedings
consistent with this opinion.

AFFIRMED IN PART,
VACATED IN PART, AND REMANDED

WHITNEY, District Judge, concurring in the judgment in part and
dissenting in part:

I concur in the result reached in Part III of the majority opinion,
because at the very least Doe’s "freedom of choice" claim fails as a
matter of law, notwithstanding additional doubts I have concerning
whether such a claim is even justiciable. I respectfully dissent from
the result reached in Part II of the majority opinion, and instead would
find Doe’s "reasonable promptness" claim to be moot, or would
 DOE v. KIDD 17
affirm the district court on the alternative basis that Doe has no pri-
vate right of action under 42 U.S.C. § 1983.

I.

Doe’s principal claim on appeal centers around the question of
whether the State’s decision to provide her with "respite" services in
a qualified CTH II group home (instead of "residential habilitation"
services in a similar type of setting) comports with the requirement
that it furnish "assistance" to "eligible individuals" with "reasonable
promptness." 42 U.S.C. § 1396a(a)(8). In order to ensure that there is
a live case or controversy for the district court to resolve on remand,
I would need to be satisfied of two things: first, that Doe is "eligible"
to receive the type of "assistance" she seeks to be provided; and sec-
ond, that Doe is receiving, or at risk of receiving, a level of "assis-
tance" that does not meet the level of "assistance" to which she is
entitled by law. Because neither of these conditions can now be satis-
fied, I would hold that Doe lacks standing to prosecute her "reason-
able promptness" claim and consequently would find that claim to be
moot.

A.

To place this issue in proper context, four foundational principles
must be laid at the outset of the analysis. First is the principle that
Doe’s asserted "right" to have certain Medicaid services furnished
with reasonable promptness is wholly contingent on Doe being
deemed eligible for and in need of those services. See 42 U.S.C.
§ 1396a(a)(8) ("[A]ssistance shall be furnished with reasonable
promptness to all eligible individuals." (emphasis added)).

Second is the related principle that Medicaid eligibility, once found
to exist, does not give rise to a perpetual right to Medicaid-funded
support. Doe’s level of services may be adjusted (and even termi-
nated) to take into account bona fide changes in her needs or eligibil-
ity, provided that she is accorded due process prior to any adverse
action. See 42 C.F.R. § 435.930(b) ("The agency must . . . furnish
Medicaid regularly to all eligible individuals until they are found to
be ineligible." (emphasis added)); 42 C.F.R. §§ 431.220, -.241 (pro-
18 DOE v. KIDD
viding for a fair hearing on the request of an aggrieved Medicaid
recipient).

Third is the principle that the state not only has the right to con-
sider how changed circumstances impact Doe’s eligibility, but that it
also has an affirmative duty to conduct periodic reevaluations to that
end. In order to facilitate an efficient allocation of scarce Medicaid
resources to those individuals most critically in need, federal regula-
tions require that states "redetermine the eligibility of Medicaid recip-
ients, with respect to circumstances that may change, at least every 12
months." 42 C.F.R. § 435.916(a). Likewise, with respect to services
rendered under the Medicaid MD/RD Waiver program (in which Doe
participated), South Carolina’s Waiver agreement with Health and
Human Services obligates it to "provide for an evaluation (and peri-
odic reevaluations, at least annually) of [a recipient’s] need for [an
intermediate level of care]." (J.A. at 275.)

Last is the principle that sympathy or charity are not sufficient
bases for a State to continue providing Medicaid to someone who
does not satisfy the very stringent criteria for eligibility. Once a recip-
ient is determined to be ineligible after being afforded a fair hearing,
"the agency must . . . discontinue services after the adverse decision."
42 C.F.R. § 431.232(d) (emphasis added).

B.

With these four principles in mind, Doe’s personal story bears
recounting. The State has never deemed Doe as meeting the criteria
for mental retardation (J.A. at 264), and it has consistently treated
with skepticism her claim of "related disability" based on her cerebral
palsy and epilepsy (J.A. at 261). However, because she appeared to
be experiencing "an acute exacerbation of her seizures which may not
continue to be severe or lifelong," DDSN left open the door to Doe’s
provisional admission into the MR/RD Waiver program. (J.A. at 261.)

Also, around this time, Doe’s mother (who was her primary care
giver) began experiencing psychiatric episodes that limited her ability
to provide adequate care for Doe. (J.A. at 263.) Accordingly, DDSN
began providing residential habilitation services to Doe in the form of
 DOE v. KIDD 19
1
in-home daytime health care and living assistance, which were
intended to ease the burden on Doe’s mother without uprooting Doe
from her family. (J.A. at 265.) This solution was also intended to
comply with the State’s obligation to serve Doe in the least restrictive
environment appropriate for her functional limitations. (J.A. at 210,
250.)

The mental health of Doe’s mother deteriorated significantly over
subsequent months and DDSN officials determined that Doe was fac-
ing an "imminent risk" of losing her primary care giver due to inca-
pacity. (J.A. at 267.) Accordingly, the less restrictive environment of
in-home care was no longer a viable option and the State promptly
sought to make available out-of-home residential habilitation services
in a CTH I (foster home) setting. (J.A. at 267.) This did not satisfy
Doe and her family, however, who insisted that she be placed in an
even more restrictive CTH II (group home) setting. Ultimately, the
State capitulated to Doe’s demands and placed her on an interim basis
in the Newberry CTH II facility, until the dispute over a suitable per-
manent placement could be sorted out.

Although Doe was receiving exactly the level of care she desired
once she was moved to the Newberry CTH II facility in July 2003
(this being the reason that the district court dismissed Doe’s "reason-
able promptness" claim as moot), the State chose to classify these ser-
vices as "respite" rather than "residential habilitation." Apparently, it
is in the subtle distinction between "respite" and "residential habilita-
tion" that the majority finds a live claim. However, unlike the major-
ity, I find no basis to take issue with the State’s classification choice
since, by the majority’s own definition, "respite" services are fur-
nished "due to the regular care giver’s absence or need for relief,"
supra note 3, which describes the very facts of this case giving rise
to the decision to place Doe in a group home setting.
1
If, as the majority holds in Part III.B. of the lead opinion, DDSN is
vested by law with the right to "select[ ] the appropriate setting for the
provision of waiver services," then it was not a violation of either 42
U.S.C. §§ 1396a(a)(8) or (23) for the State to provide in-home residential
habilitation as opposed to out-of-home residential habilitation, and Doe’s
lawsuit was meritless even at its inception.
20 DOE v. KIDD
Moreover, I find no basis to take issue with the inherently "tempo-
rary" nature of these "respite" services, since the State should not
have to impute upon itself a long-term obligation to keep Doe in a set-
ting that it believes is more restrictive than necessary to meet her
needs. Indeed, the majority correctly determines in Part III.B. that
DDSN is not legally obligated to keep Doe in a CTH II facility simply
because that is her preference, and is free to move Doe to a less
restrictive setting more appropriate to her needs. Yet in Part II.B., the
majority paradoxically finds that the State has not ceased its allegedly
illegal conduct for the sole reason that Doe is "only in the Newberry
CTH II for respite [services] or until her true status is determined."
(J.A. at 384.) The incongruity of these two conclusions could not be
more manifest: How can Doe’s temporary placement in a CTH II
facility until a more appropriate placement is identified be indicative
of the State’s continuing failure to provide required Medicaid services
with reasonable promptness, when at the same time we hold that per-
manent placement at a CTH II home is not required by law and that
her permanent placement should be determined based upon her partic-
ular needs and eligibility status?2

At the time of the district court’s judgment, the legal battle cen-
tered around whether Doe ultimately would be placed in a CTH II
(group home) facility, in conformity with her wishes and those of her
family, or whether she would be placed in a CTH I (foster home) set-
ting, in conformity with the approved Plan of Care in effect at the
time. (J.A. at 337, 348-49.) In order for there to have been a live con-
2
Ironically, Doe has not been removed from a CTH II facility to-date,
and so the "respite" services that the majority worries are so ephemeral
in nature have been continuously provided by the State for more than
three years, with all indications being that the State will continue to pro-
vide them until all legal proceedings (both here and at the State level)
have been concluded. Today’s holding proves the adage that "no good
deed goes unpunished" by using the State’s indulgence in allowing Doe
to stay in the setting of her choice pending resolution of her legal chal-
lenges to provide support for the conclusion that the State’s alleged fail-
ure to provide Medicaid services with reasonable promptness is ongoing.
This dangerous precedent now encourages states to do the worst possible
thing: deny the provision of Medicaid services to those whose eligibility
is in question pending exhaustion of administrative appeals and final res-
olution of judicial review.
 DOE v. KIDD 21
troversy surrounding Doe’s "reasonable promptness" claim, at least
one of these possible outcomes would have to result in the denial of
her right to be furnished Medicaid services with reasonable prompt-
ness. The majority tells us today that the placement advocated by the
State (CTH I) would not result in any impermissible denial of Medic-
aid services, since Doe has no legal right to self-determine her level
of care and DDSN had determined that she was entitled to only a
CTH I level of care. And the alternative placement (CTH II) would,
in the words of her attorney, provide Doe with "the placement that we
have requested" (J.A. at 338), even if, from DDSN’s perspective, such
a placement is intended to be temporary or even wholly gratuitous. In
other words, no matter what the outcome, Doe would have gotten
either what she wanted or what she was entitled. Thus, nothing in the
record upsets the district court’s finding that Doe’s "reasonable
promptness" claim was moot.

C.

The district court’s dismissal of Doe’s "reasonable promptness"
claim should not, therefore, be vacated simply on the fact that Doe
was at risk of being displaced from a CTH II facility upon determina-
tion of her "true status." However, the factual landscape has changed
somewhat since the district court’s judgment. We now know that the
State intends not only to remove Doe from a CTH II facility where
she does not belong, but also now intends to discontinue her residen-
tial habilitation services altogether, because an investigation into her
"true status" has confirmed that she does not meet the stringent eligi-
bility criteria for ICF/MR intermediate level of care. Yet far from pro-
viding any additional support for Doe’s claim against the State for
unreasonably delaying or withholding services, this turn of events
squarely forecloses her claim, since standing to assert a "reasonable
promptness" violation necessarily presupposes the recipient’s contin-
uing eligibility for the services denied.

Here we pick up again where we last left off from Doe’s story.
Doe’s 2003 Plan of Care (J.A. at 170-88) was in effect for a period
of approximately one year, after which it was superseded by a new
Plan of Care in May 2004 (J.A. at 113-15). This is consistent with the
legal requirement, detailed above, that each recipient’s eligibility be
reevaluated annually. Following the 2004 evaluation, Doe was
22 DOE v. KIDD
approved for a consecutive year of eligibility for "residential habilita-
tion" services (i.e., through Doe’s next level of care evaluation sched-
uled for early 2005).

Shortly thereafter, in or around June 2004, Doe’s care givers began
to realize that Doe would frequently "initiate[ ] fake or pseudo sei-
zure[s]," which they interpreted to be "manipulative behavior" that
created "an unnecessary dependence on others." (J.A. at 116.) This
reasonably caused DDSN to question whether Doe might have "the
capacity for a greater degree of independence," (J.A. at 116), espe-
cially in light of the fact that a sudden "exacerbation" in the severity
of her epilepsy was a primary factor in finding that Doe was medi-
cally qualified for residential habilitation services under the Medicaid
MR/RD Waiver program in the first place (J.A. at 261). This
prompted DDSN to begin documenting Doe’s true seizure frequency
and adaptive functioning abilities, which together suggested that her
limitations were not so severe as to justify ICF/MR intermediate level
of care. (J.A. at 299-300.)

Notwithstanding this new information, as well as a favorable judg-
ment in the district court, DDSN allowed Doe to finish out the term
of her May 2004 Plan of Care in a CTH II group home setting. How-
ever, in April 2005, following her annual level of care evaluation ear-
lier that same year, Doe was notified by DDSN that she no longer
satisfied the eligibility criteria for ICF/MR intermediate level of care,
and that as a consequence her Medicaid MR/RD Waiver services
would be terminated effective May 7, 2005, unless she timely
requested a fair hearing, which she did. On June 5, 2006, following
five days of hearings, a DHHS Hearing Officer upheld the determina-
tion of ineligibility in a thoughtful and comprehensive 34-page
administrative order. (J.A. at 297-330.) That decision is now on
appeal to the South Carolina Administrative Law Court, and the State
is continuing to provide "respite" services until Doe has exhausted her
appeals. (See Rule 28(j) filing dated August 6, 2007.)

The sequence of events just described must remove all doubt that,
as of today, Doe’s "reasonable promptness" claim is moot, because
she lacks any basis to assert that she is currently eligible to receive
the particular services that she claims are being denied.3 Doe’s theory
3
The parties’ briefs focus on whether these state administrative deci-
sions should be given preclusive effect pursuant to Univ. of Tennessee v.
 DOE v. KIDD 23
of the case is built on the premise that her entitlement to residential
habilitation services is contained within her March 2003 Plan of Care.
However, that Plan of Care is no longer of any relevance because it
was superseded by the May 2004 Plan of Care. And Doe cannot now
point to the May 2004 Plan of Care as the source of her entitlement
to residential habilitation services because that Plan of Care would
have expired in May 2005, and her eligibility for these services has
never been extended by a more current Plan of Care (for the reason,
of course, that Doe has been found ineligible). The majority leaves
me baffled as to how, upon remand, the district court should go about
deciding whether Doe is now entitled to prospective relief4 based on
an alleged entitlement to services found in a Plan of Care that expired
years ago, while turning a blind eye to the fact that recent state admin-
istrative proceedings have resulted in a determination that Doe is not
even qualified to be a Medicaid recipient.

The only document in the record showing that Doe has a present
entitlement to Medicaid services is a recent Administrative Order of
the DHHS Hearing Officer, filed with this Court pursuant to Fed. R.
App. P. 28(j), determining that Doe should continue to receive
"respite" services, but not "residential habilitation" services, pending
the outcome of the administrative appeal of her termination from the
Medicaid MR/RD Waiver program. To me, it seems entirely appro-

Elliott, 478 U.S. 788 (1986). This line of argument misses the point. The
state administrative actions are not collateral estoppel in the present case
not only because there has not yet been a final judgment (on account of
Doe’s appeal to the State Administrative Law Court), but more impor-
tantly because there is no identity of issues: the issue before the State
administrative decisionmakers is whether Doe is eligible for Medicaid
ICF/MR services at all, while the issue before us is whether Doe has
been furnished with reasonable promptness the services for which she
has been deemed eligible. Nonetheless, the State administrative decisions
must be factored into our standing analysis, because maintaining a
legally cognizable interest in the outcome of this lawsuit presupposes
that Doe’s eligibility has not changed in a way that would render the
relief sought nugatory.
4
Any prayer for retroactive, compensatory relief would be barred by
the Eleventh Amendment. See Lynn v. West, 134 F.3d 582, 587 (4th Cir.
1998).
24 DOE v. KIDD
priate that the State Medicaid agency, having found Doe to be ineligi-
ble for comprehensive "residential habilitation" services, would fund
only necessary "respite" services pending the administrative law
judge’s decision, since by the majority’s own definition "respite" is
intended to be a temporary gap-filling measure and not a long-term
solution. And since Doe is in fact being provided "respite" services
at this time, she has no basis to claim that the State is failing to fur-
nish the services for which she is eligible with the required degree of
promptness.

In sum, because Doe cannot, as of today, make a showing that she
is entitled to residential habilitations services in the first place, there
can be no live controversy surrounding the derivative issue of whether
those services have been furnished in a reasonably prompt manner.
Moreover, even if we assume that Doe ultimately will prevail in her
administrative appeal and that her eligibility for "residential habilita-
tion" services will be reinstated, I have no reason to believe that
DDSN would at that point defy the order of a state administrative law
judge and refuse to place Doe promptly in an appropriate facility that
provides those services. Thus, this is no longer (if it ever was) a case
that is capable of repetition yet evading review. Therefore, even if I
agreed with the majority that Doe’s "reasonable promptness" claim
was not moot at the time of the district court’s judgment, I would now
dismiss her appeal as moot, or at the very least remand to the district
court for additional findings with respect to how these post-judgment
developments at the administrative level impact her standing.

II.

Because I believe that Doe’s "reasonable promptness" claim is
moot, I would not reach the thorny issue of first impression in this cir-
cuit of whether 42 U.S.C. § 1983 provides Doe with a remedy for
alleged violations of 42 U.S.C. § 1396a(a)(8). Nonetheless, because
the majority does reach this question in Part II.B. of the lead opinion,
I feel compelled to explain why I believe the majority’s holding is
legally incorrect.

With respect, I do not believe that the three-factor test of Blessing
v. Freestone, 520 U.S. 329 (1997), should control our analysis in light
of the Supreme Court’s more current opinion in Gonzaga Univ. v.
 DOE v. KIDD 25
Doe, 536 U.S. 273 (2002), which was explicitly intended to resolve
considerable uncertainty stemming from the Court’s prior opinions on
the subject.5 In the Gonzaga opinion, the Supreme Court reempha-
sized a fundamental principle that had become obscured in cases like
Blessing: Nothing "short of an unambiguously conferred right" will
"support a cause of action brought under § 1983." Id. at 283. The
Court then went on to hold that the judicial function is exclusively
one of determining what "Congress intended" by enactment of the
statute — a task which, like other matters of statutory interpretation,
is to be resolved in the first instance by looking to the "text and struc-
ture" of the relevant statute. Id. at 285-86.

In finding an absence of congressional intent to create a privately
enforceable right under FERPA, the Gonzaga Court considered as rel-
evant three specific features of the statute: It "contain[ed] no rights-
creating language;" it had an "aggregate, not individual, focus;" and
it "serve[ed] primarily to direct the Secretary of Education’s distribu-
tion of public funds." Id. at 290. Additionally, the Court considered
whether Congress "chose to provide" an alternative "mechanism" to
private litigation "for enforcing those provisions." Id. at 289. Impor-
tantly, the Court considered the availability of administrative review
to be directly relevant to the issue of congressional intent not to create
a privately enforceable right, independent of the secondary issue of
whether those procedures are so incompatible with private enforce-
ment as to displace a remedy under § 1983. Id. at 290 & n.8.

Like FERPA, the Medicaid statute was enacted pursuant to the
congressional spending power, and its primary purpose is to direct the
appropriate executive branch officer (in this case, the Secretary of
Health and Human Services) in the distribution of appropriated funds
to accomplish the stated purpose. The Act’s preamble speaks directly
to these purposes, providing in relevant part as follows:

For the purpose of enabling each State . . . to furnish (1)
medical assistance . . . and (2) rehabilitation and other ser-
5
Id. at 278 ("[O]ur [prior] opinions in this area [have not been] models
of clarity. We therefore granted certiorari . . . to . . . resolve any ambigu-
ity in our own opinions."); see also id. at 282-83 (limiting the import of
the Blessing test).
26 DOE v. KIDD
vices . . . , there is hereby authorized to be appropriated for
each fiscal year a sum sufficient to carry out the purposes
of this subchapter. The sums made available under this sec-
tion shall be used for making payments to States which have
submitted, and had approved by the Secretary, State plans
for medical assistance.

42 U.S.C. § 1396. Due to the nature of spending power enactments
as such, we begin our analysis with a presumption that Congress has
not intended to create a private remedy. See Pennhurst State School
& Hospital v. Halderman, 451 U.S. 1, 28 (1981) ("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."); accord 42 U.S.C.
§ 1396c (providing that the remedy for State noncompliance with any
provision of section 1396a is the withholding of federal funds).

The very next section of the act, codified at 42 U.S.C. § 1396a, sets
forth several criteria that a "State plan for medical assistance" must
satisfy in order to gain federal approval and enable the Secretary to
disburse federal funds. Among these requirements is the provision
upon which Doe purports to base her "reasonable promptness" claim:

A State plan for medical assistance must —

(8) provide that all individuals wishing to make application
for medical assistance under the plan shall have opportunity
to do so, and that such assistance shall be furnished with
reasonable promptness to all eligible individuals . . . .

42 U.S.C. § 1396a(a)(8). However, this provision lacks the kind of
"rights-creating language" that Gonzaga requires as a basis for private
enforcement, and it has an "aggregate, not individual, focus." Specifi-
cally, the statute speaks only to what the state plan must generally
"provide" for in order for the state’s Medicaid program to qualify for
federal funding. Thus, like FERPA, section 1396a(a) is written "in
terms of institutional policy and practice," and does not specifically
address "individual instances" of noncompliance. Gonzaga, 536 U.S.
at 288. Indeed, with respect to the daily administration of state Medic-
 DOE v. KIDD 27
aid plans, Congress chose to require only that states "comply substan-
tially" with the requirements of section 1396a in order to remain
eligible to receive federal funding. See 42 U.S.C. § 1396c. Similarly,
the Gonzaga Court singled out FERPA’s "comply substantially" pro-
vision as evidence that Congress did not intend to confer a privately
enforceable right. Gonzaga, 536 U.S. at 288.

At best it can be said, as the majority holds in its Blessing analysis,
that Doe falls within the class of persons that section 1396a(a) is
intended to benefit. I do not contend otherwise, and certainly do not
mean to imply that Congress would require the states to craft their
Medicaid plans to protect certain individual interests without regard
to whether these provisions are actually followed in practice. How-
ever, it is simply not sufficient that Doe "falls within the zone of
interest that the statute is intended to protect," because it is "only vio-
lations of rights, not laws, which give rise to § 1983 actions." Gon-
zaga, 536 U.S. at 283 (emphasis in original). And nothing in the text
or structure of the statute indicates that Congress intended to create
judicially vindicable individual rights under section 1396a(a). Rather,
the Medicaid statute in essence defines the parameters of a voluntary,
pseudo-contractual relationship between the Federal government on
the one hand and the states on the other. Cf. Pennhurst State School,
451 U.S. at 17. The statute is directed in the first instance to the Sec-
retary of Health and Human Services, setting forth the conditions
upon which federal money under his stewardship is to be released in
furtherance of an important public policy. The statute also addresses
the states, albeit indirectly, insofar as it imposes on them certain con-
ditions which attach to the receipt of federal money (though it does
not categorically mandate state compliance insofar as states remain
free to reject federal funding). But individual Medicaid recipients like
Doe are at best third-party beneficiaries to this arrangement, and as
such are essentially "stranger[s]" to the underlying bargain. Blessing,
520 U.S. at 349 (Scalia, J., concurring). Indeed, nowhere is the statute
directly concerned with "whether the needs of any particular person
have been satisfied," id. at 343, and in fact those types of individual
determinations are specifically left to the states as the designated
administrators of Medicaid, see 42 U.S.C. § 1396a(a)(5). Because the
whole focus of the Medicaid statute is on the "regulated [entity] rather
than the individuals protected," I must conclude that there is "no
implication of an intent to confer rights on a particular class of per-
28 DOE v. KIDD
sons." Alexander v. Sandoval, 532 U.S. 275, 289 (2001) (internal quo-
tation marks and citation omitted).

Any lingering doubt that Congress might have intended to create
a new battery of individual rights enforceable by section 1983 is in
my mind dispelled by the fact that Congress has made other provision
for redressing individual deprivations under section 1396a(a). Aside
from the threat of loss of federal funding if the state’s practices do not
meet the substantial compliance threshold, Congress has sought to
ensure the protection of individual recipients’ interests by requiring
that each state plan for medical assistance provide for an "opportunity
for a fair hearing before the State agency to any individual whose
claim for medical assistance under the plan is denied or is not acted
upon with reasonable promptness." 42 U.S.C. § 1396a(a)(3). Thus,
Congress specifically contemplated circumstances where a Medicaid
recipient has been denied the benefit of reasonably prompt agency
action, and specifically provided that recourse should be available in
the form of a fair hearing before the agency. Where Congress has
seen fit to establish an administrative mechanism to deal with individ-
ual grievances arising in the daily administration of a program as
massive and complex as Medicaid, it seems to me a reasonable pre-
sumption that Congress would have deemed the administrative rem-
edy both appropriate and adequate to address the problem.6 Thus, any
inference that Congress might have intended to create individual
rights which are judicially actionable under 42 U.S.C. § 1983 seems
weak indeed. Gonzaga, 536 U.S. at 289-90.

If Congress had intended to subject the countless Medicaid deci-
sions made by state agencies each day to the scrutiny of the federal
judiciary, I would expect to find clear and unmistakable language in
the statute stating as much. In the absence of such language, I cannot
be so cavalier as the majority in imputing to Congress an intent to
allow dissatisfied Medicaid recipients to have their routine grievances
aired in federal court under the auspices of 42 U.S.C. § 1983, and
6
Of course, if a state failed to provide a Medicaid recipient with ade-
quate pre-deprivation due process in the form of a fair hearing, then a 42
U.S.C. § 1983 action could be brought against the state, because the
Fourteenth Amendment would supply the right in these circumstances.
Cf. Goldberg v. Kelly, 397 U.S. 254 (1970).
 DOE v. KIDD 29
instead would exercise the cautious skepticism toward the recognition
of new "rights" by implication which the Supreme Court adopted in
the now-controlling Gonzaga opinion. Because I cannot meaningfully
distinguish between the provisions of the Medicaid Act relevant to
Doe’s claims and the analogous features of FERPA with respect to
which the Gonzaga Court found no privately actionable rights, I
would hold, on the authority of Gonzaga alone, that 42 U.S.C. § 1983
does not provide Doe with a remedy for the State’s alleged violations
of section 1396a(a)(8)’s "reasonable promptness" standard.

For these reasons, I respectfully dissent from Part II of the majority
opinion and concur only in the judgment as to Part III.