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

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
September 21, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

M ANDY R., by and through her
parents and guardians, M r. and M rs.
R.; LISA W ., by and through her
parents and next friends, M r. and M rs.
W .; STEPH ANIE F., by and through
her parents and next friends, M r. and
M rs. F.,

Plaintiffs,

M ARIAN L., by and through her
parent and guardian, M s. L.; JODI F.,
by and through her parents and next
friends, M r. and M rs. F.; and C ATHY
G., by and through her parent and
guardian, Russell G .,

Plaintiffs-Intervenors,

and

C OLO RA D O A SSO CIA TIO N OF
CO M M UN ITY CENTERED
BO ARD S, No. 05-1148

Plaintiff-Intervenor - A ppellant,

v.

BILL OW ENS, Governor of the State
of Colorado; M ARV A HAM M ONS,
Executive Director of the Colorado
Department of Human Services;
KAREN REINERTSO N, Executive
Director of the Colorado Department
of Health Care Policy and Financing;
C OLO RA D O D EPA RTM EN T OF
H U MA N SER VIC ES; C OLO RADO
DEPARTM ENT OF HEALTH CARE
PO LIC Y A N D FIN A N CIN G ,

Defendants - Appellees.

M ANDY R., by and through her
parents and guardians, M r. and M rs.
R.; STEPH ANIE F., by and through
her parents and next friends, M r. and
M rs. F.,

Plaintiffs - Appellants,
No. 05-1150
JO DI F., by and through her parents
and next friends, M r. and M rs. F.;
M ARIAN L., by and through her
parent and guardian, M s. L.; C ATHY
G., by and through her parent and
guardian, Russell G .,

Plaintiffs-Intervenors -
Appellants,

and

LISA W ., by and through her parents
and next friends, M r. and M rs. W .,

Plaintiff,

C OLO RA D O A SSO CIA TIO N OF
CO M M UN ITY CENTERED
BO ARD S,

Plaintiff-Intervenor,

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 v.

BILL OW ENS, Governor of the State
of Colorado; M ARV A HAM M ONS,
Executive Director of the Colorado
Department of Human Services;
KAREN REINERTSO N, Executive
Director of the Colorado Department
of Health Care Policy and Financing;
C OLO RA D O D EPA RTM EN T OF
H U MA N SER VIC ES; C OLO RADO
DEPARTM ENT OF HEALTH CARE
PO LIC Y A N D FIN A N CIN G ,

Defendants - Appellees.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF COLORADO
(D.C. NO . 00-M -1609)

R. Eric Solem, of Solem, M ack & Steinhoff, P.C., Englewood, Colorado for
Appellants.

Richard W estfall, of Hale Friesen, LLP, Denver, Colorado, for Appellant
Colorado Association of Community Centered Boards.

W ade S. Livingston, First Assistant Attorney General, Human Services Unit of
the State Services Section, Denver, Colorado (Attorney General John W . Suthers
with him on the brief), for Appellees.

Before M U RPH Y, M cCO NNELL, and BALDOCK , Circuit Judges.

M cCO NNELL, Circuit Judge.

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 Colorado has a waiting list of hundreds of developmentally disabled

persons who need but do not receive M edicaid-funded services. Six such persons

and an association of providers brought this suit under 42 U.S.C. §1983, claiming

that the State of Colorado has failed to comply with three requirements of the

M edicaid Act, namely reasonable promptness, comparability, and sufficient

payments. After a bench trial, the district court entered judgment for the

Defendants. W e hold that the reasonable promptness and comparability

requirements do not require the State to provide services, and that neither

recipients nor providers have a private right to enforce the sufficient payments

requirement through §1983. W e therefore AFFIRM .

I. Factual and Procedural Background

This suit was brought in August 2000 by six persons, through their parents

and guardians, against the governor of Colorado and two other state officials.

The six individual plaintiffs are developmentally disabled persons who are on

waiting lists for comprehensive residential services. These services are provided

by public and private entities, which are paid by the State, which is in turn

reimbursed for about half of the costs by the federal government through

M edicaid. See 42 U.S.C. § 1396a. The State offers two kinds of M edicaid-

funded services relevant to this suit. An Intermediate Care Facility for the

M entally Retarded (ICF/M R) is an institutional setting, usually large, and is

“generally reserved for persons with extreme needs.” Appellees’ A nswer Br. 5.

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Three such facilities exist in Colorado, and they serve about 86 persons. Two of

these facilities are managed by the State, and one is operated by a private

organization. The State also provides Home and Community-Based Services

(HCBS). In an HCBS setting, developmentally disabled persons live “in either a

small host home (serving 1 to 3 people) or slightly larger group homes (serving 4

to 8 people).” Id. at 9. Over the last quarter-century the State has shifted its

emphasis from ICFs/M R to HCBS, which are less expensive and less isolating.

Home and Community-Based Services are “waiver programs,” which means

that the State may offer them only after securing a waiver of certain M edicaid

requirements from the federal government. They are also capped by the state’s

waiver application wherein a state must indicate the maximum number of

participants it will accept in its waiver program. At the time of trial nearly 3,800

persons received HCB services. Another 733 persons wished to receive HCB

services, but the services were unavailable. Roughly half of these 733 persons

received no state services of any kind for the developmentally disabled. At the

time of trial, only 21 persons were seeking ICF/M R services. The plaintiffs

sought ICF/M R services, and each contended that the needed services w ere

unavailable because the State refused to comply with federal law.

In October 2000, the Colorado Association of Community Centered Boards

(CACCB) moved to intervene on the side of the plaintiffs. Community-centered

boards are HCBS providers offering housing and medical care to the

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developmentally disabled and receiving, in return, M edicaid payments from the

state.

Suing under 42 U.S.C. §1983, the plaintiffs and intervenor alleged

violations of the federal M edicaid Act, specifically that the State failed to provide

the developmentally disabled with comprehensive residential services that meet

the statutory requirements of reasonable promptness and comparability, which are

described below. The individual plaintiffs sought a declaratory judgment and an

injunction that would compel the state to meet the statute’s requirements, but they

did not and do not ask the courts to specify the way in which the State should

comply with the statute. The individual plaintiffs sought class certification on

behalf of all developmentally disabled persons in Colorado who remain on

waiting lists to receive comprehensive medical services. Although opposing class

certification, the CACCB generally supported the individual plaintiffs’ claim.

The CACCB also claimed that the State pays for M edicaid services for the

developmentally disabled at rates that are too low to meet the statutory

requirement of sufficient payments.

The district court denied class certification and, after a four-day trial,

entered judgment for the Defendants. The plaintiffs now appeal. 1

1
One individual plaintiff began receiving the needed services shortly before
trial. She does not appeal.

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 II. Reasonable Promptness and Comparability

W e begin with the claim that the State has failed to comply with the

requirements of reasonable promptness and comparability. If a state chooses to

participate in M edicaid, it must submit a state plan for providing “medical

assistance.” 42 U.S.C. § 1396a(a). The M edicaid Act imposes a number of

conditions on a state plan, two of which are at issue in this case. The first is that

medical assistance “shall be furnished with reasonable promptness to all eligible

individuals.” Id. § 1396a(a)(8). The second, the comparability requirement, is

that the assistance any patient receives “shall not be less in amount, duration, or

scope than the medical assistance made available to any other such individual.”

Id. § 1396a(a)(10)(B)(i).

In addressing these claims, we assume that the individual plaintiffs may sue

to enforce their rights under subsections (8) and (10). Since the Supreme Court

clarified when a statute creates an enforceable private right in Gonzaga University

v. Doe, 536 U.S. 273 (2002), several circuit courts have considered whether one

or both of these subsections creates an enforceable private right. Each has

concluded that the provision in question does. See, e.g., Watson v. Weeks, 436

F.3d 1152, 1159 & n.8 (9th Cir. 2006) (following the five federal circuit courts

that have found a private right to sue for enforcement of § 1396a(a)(10), two of

which did so after Gonzaga); Sabree v. Richman, 367 F.3d 180, 192 (3d Cir.

2004) (finding that each provision created an enforceable private right). But see

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Sanders ex rel. Rayl v. Kan. Dep’t of Soc. and Rehab. Servs., 317 F. Supp. 2d

1233, 1250 (D. Kan. 2004) (concluding that subsection (8) does not create an

enforceable private right but finding it “a closer question” than for some

M edicaid provisions); M .A.C. v. Betit, 284 F. Supp. 2d 1298, 1307 (D. Utah 2003)

(concluding that subsection (8) does not create an enforceable private right). In

this case, the district court did not clearly decide whether this portion of the

statute creates a federal right enforceable under § 1983, but the parties have not

disputed the point. W e therefore assume without deciding that § 1983 gives the

plaintiffs a right of action to enforce subsections (8) and (10). See Burks v.

Lasker, 441 U.S. 471, 475-76 & n.5 (1979) (“The question whether a cause of

action exists is not a question of jurisdiction, and therefore may be assumed

without being decided.”).

On the merits, the plaintiffs’ reasonable promptness and comparability

claims are two ways of characterizing one problem: that the individual plaintiffs

are not receiving the comprehensive residential services they need. They are thus

(1) not receiving them promptly and (2) not receiving them to the extent that

others receive them. The outcome of both claims turns on the same question:

W hat is the “medical assistance” that the State must provide promptly and

equally?

The M edicaid Act defines “medical assistance” as “payment of part or all

of the cost of the [described] care and services.” 42 U.S.C. § 1396d(a). The

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statutory definition mentions payment for, but not provision of, services. In other

words, “the statutory reference to ‘assistance’ appears to have reference to

financial assistance rather than to actual medical services.” Bruggeman ex rel.

Bruggeman v. Blagojevich, 324 F.3d 906, 910 (7th Cir. 2003); see also Westside

M others v. Olszewski, 454 F.3d 532, 540 (6th Cir. 2006) (concluding that 42

U.S.C. §§ 1396a(a)(8) and (10) do not “require the State to provide medical

services directly” but rather require only financial assistance). 2 On its face, then,

the M edicaid Act requires any state participating in M edicaid to pay promptly and

evenhandedly for medical services w hen the state is presented w ith the bill. If

that is all the statute requires, then the plaintiffs have no claim: they are on a

waiting list for services, not a waiting list for payment for services.

The plaintiffs offer two reasons we should reject the natural reading of the

statute. The first is that the definition of “medical assistance,” w hen read in

context, requires the State to provide actual services and not merely to pay for

them. The plaintiffs point to five contextual clues that “medical assistance”

2
Some courts have suggested that there exists a circuit split on the question
of w hether “medical assistance” requires a state to provide actual services.
Sabree ex rel. Sabree v. Richman, 367 F.3d 180, 181 n.1 (3d Cir. 2004); Westside
M others, 454 F.3d at 540. The existence of such a split is not entirely clear. Tw o
circuits have held that “medical assistance” requires only financial assistance.
See Bruggeman, 324 F.3d at 910; Westside M others, 454 F.3d at 540. Another
circuit has reserved the question. Sabree, 367 F.3d at 181. W ithout expressly
addressing the issue, two other circuits appear to have treated the statute as
requiring the provision of actual services. Bryson v. Shumway, 308 F.3d 79, 81,
88-89 (1st Cir. 2002); Doe v. Chiles, 136 F.3d 709, 714, 717 (11th Cir. 1998).

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means actual services and not just financial payments. None of these clues,

however, is sufficiently convincing to depart from the statutory definition of

“medical assistance.”

First, the plaintiffs point to another provision in the M edicaid Act, 42

U.S.C. § 1396a(a)(2), which requires the State to “assure that the lack of adequate

funds from local sources will not result in lowering the amount, duration, scope or

quality of care and services available under the plan.” But this requirement

explicitly controls the method of “financial participation by the State.” Id.

(emphasis added). The State must ensure that the non-federal portion of an

eligible patient’s bill is paid, by picking up any slack from “local sources” of

funding, but this provision says nothing about providing the services themselves.

Second, the plaintiffs suggest that the comparability provision requires the

State to provide actual services because the “medical assistance” must be the

same “in amount, duration, or scope.” 42 U.S.C. § 1396a(a)(10)(B)(i). The

words of this provision, however, can apply to the payment for services no less

logically than to the provision of services. It is coherent, and consistent with the

text of the comparability provision, to require states to pay for services on a

comparable basis— in the same amounts, for the same duration, and in the same

scope. Accordingly, this provision does not indicate w hich meaning we should

give to “medical assistance,” and it thus gives us no reason to depart from the

general statutory definition for the M edicaid Act.

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 Third, the plaintiffs suggest that the State must provide services whenever

necessary to assure that “care and services will be provided[] in a manner

consistent with simplicity of administration and the best interests of the

recipients.” 42 U.S.C. § 1396a(a)(19). The plaintiffs give scant attention to this

argument, and for good reason. In Bruggeman the Seventh Circuit held that this

provision was “insufficiently definite to be justiciable, and in addition cannot be

interpreted to create a private right of action.” Bruggeman, 324 F.3d at 911

(citing three other circuits that have reached the same conclusion, under the

M edicaid Act or under § 1983). W e need not reach the private-right-of-action

question, which is not before us, to determine that this provision does not require

the State to provide actual services. If this provision implicitly required the State

to provide services, because it is something in the “best interests of the

recipients,” we see no logical end. W ithout a logical stopping point or anything

more definite than “best interests,” we do not read this provision to require the

State to provide actual services.

Fourth, the plaintiffs point to the plan the State filed with the federal

government, which promised to provide ICFs/M R with “No Limitations.”

Colorado State M edicaid Plan, R. Vol. IV, at 755. This phrase appears in the

state plan on a page titled “Amount, Duration and Scope of M edical and Remedial

Care and Services Provided to the Categorically Needy.” Id. A series of services

are mentioned, from ICFs/M R to nurse-midwife services, and for each the

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governm ent checked boxes indicating that the services are provided with “No

Limitations,” are provided “With Limitations,” or are “Not Provided.” Id. As the

director of the State’s M edical Assistance Office explained, “limitations” are

limits on payments to otherwise eligible patients, such as the limit that the State

will pay for only 45 days of in-patient psychiatric services in a calendar year. R.

Vol. II, at 350. If the State wishes to enforce such a limit on the provided

services it will pay for, it must announce the limit in the state plan. By choosing

“No Limitations,” the State was abjuring limits such as the length of ICF/M R

services for which it would pay, but there is no indication that by checking this

box the State promised to build, staff, and maintain as many ICFs/M R as w ould

be needed to meet the demand in Colorado.

Fifth, the plaintiffs assert that Colorado’s waiver application indicates a

comm itment to ensuring that every eligible patient receives services, either from

ICFs/M R or HCBS. The waiver application provides that a developmentally

disabled adult deemed to require the level of care offered by an ICF/M R will be

“informed of any feasible alternatives” to ICFs/M R and “[g]iven the choice of

either institutional or home and community-based services.” R. Vol. IV, at 863.

Although the waiver application suggests that a developmentally disabled person

will have a choice between an ICF/M R and HCBS, it does not assign to the State,

or any other party, the responsibility to ensure that such facilities are in fact

available. Indeed, the waiver application appears to mean only that the choice

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among “feasible alternatives” is to be made by the recipient – not that the State

must make alternatives available. Because it is at best ambiguous on the point, it

provides no reason to reject the natural reading of the statutory definition. None

of these five contextual clues, therefore, undermines the statutory definition of

“medical assistance” as payment for services.

The plaintiffs’ second reason to reject the payment-only reading of

“medical assistance” is policy based. The plaintiffs accuse the State of promising

to pay for services for the developmentally disabled and then suppressing the

supply of these services. They are effectively asking us, in the alternative, (1) to

conclude that in the context of the M edicaid A ct, the state plan, and the State’s

waiver application, “medical assistance” includes a requirement that the State be

a service-provider of the last resort; or (2) to graft onto “medical assistance” a

good-faith requirement that would oblige the state not to discourage proposals

from outside care providers. Such a good-faith requirement has intuitive appeal,

for the State has obvious conflicts of interest. At oral argument the State even

conceded that it may not escape paying for ICF/M R services by setting rates so

low that no one can provide them. Cf. Westside M others, 454 F.3d at 541

(allowing plaintiffs, after amending their complaint, “to allege that inadequate

payments effectively deny the right to ‘medical assistance’”).

Nevertheless, we need not decide w hether a state has (or may assume) a

good-faith obligation not to prevent new entrants into this market. The precise

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claim brought by the plaintiffs is narrow. The plaintiffs do not suggest that

ICF/M R rates have been set so low as to prohibit new entrants to the market. Nor

do the plaintiffs claim that the State has discouraged efforts to build HCBS

facilities, which is where the greatest shortfall in facilities exists. And the

plaintiffs do not claim that the state has denied or effectively denied (through

delay or similar means) a formal application to build new ICF/M R facilities.

Indeed, the plaintiffs could not claim this, because no such applications have been

filed. Instead, the individual plaintiffs claim that the State has discouraged

efforts to build new ICFs/M R by responding cooly to initial inquiries. This is too

nebulous a basis to support a legal claim. It is the State’s prerogative to prefer

HCBS over ICFs/M R – a preference shared by many advocates for the

developmentally disabled – and to make that policy preference known. Assuming

arguendo that the State has a duty (either statutory or self-imposed) not to prevent

new entrants who could provide ICF/M R services, it violated no such duty here,

where it neither rejected nor was even presented with any formal applications. If a

case arises in which the State has effectively prevented a qualified provider of

ICF/M R services from entering the market, we will have to decide whether such a

good-faith requirement exists.

W e therefore agree with the Sixth and Seventh Circuits that the M edicaid

statute does not require states to be service-providers of last resort. See Westside

M others, 454 F.3d at 540; Bruggeman, 324 F.3d at 910. Although Bruggeman

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concerned a claim about the location of ICFs/M R within a state, and not about the

lack of them, the Seventh Circuit’s conclusion is directly on point and persuasive:

M edicaid is a payment scheme, not a scheme for state-provided
medical assistance, as through state-owned hospitals. The regulations
that implement the provision indicate that what is required is a
prompt determination of eligibility and prompt provision of funds to
eligible individuals to enable them to obtain the covered medical
services that they need . . . ; a requirement of prompt treatment
would amount to a direct regulation of medical services.

Bruggeman, 324 F.3d at 910. The State must pay for medical services, but it need

not provide them.

III. Rates

A second claim is brought only by the CACCB: that the State payments for

waiver services (H CBS) are insufficient to comply with the M edicaid Act.

Specifically, the CACCB claims that the rates at which the State pays for waiver

services violate 42 U.S.C. § 1396a(a)(30)(A ), which requires a state to

provide such methods and procedures relating to the utilization of,
and the payment for, care and services available under the plan . . .
as may be necessary to safeguard against unnecessary utilization of
such care and services and to assure that payments are consistent
with efficiency, economy, and quality of care and are sufficient to
enlist enough providers so that care and services are available under
the plan at least to the extent that such care and services are available
to the general population in the geographic area.

42 U.S.C. § 1396a(a)(30)(A). CACCB brings this claim not only for itself, as an

association of providers, but also on behalf of recipients generally (though not on

behalf of the six individual plaintiffs). Before we can reach the merits of the

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claim, we must decide whether subsection (30)(A) creates a private right

enforceable under §1983. Section 1983 imposes liability on anyone who, under

color of state law, deprives a person “of any rights, privileges, or immunities

secured by the Constitution and laws.” To seek redress through §1983, a plaintiff

must assert a violation of a federal right, not merely a violation of federal law.

Blessing v. Freestone, 520 U.S. 329, 340 (1997). The Court has set forth three

criteria necessary to finding that a statutory provision gives rise to a federal right:

First, Congress must have intended that the provision in question
benefit the plaintiff. Second, the plaintiff must demonstrate that the
right assertedly protected by the statute is not so “vague and
amorphous” that its enforcement would strain judicial competence.
Third, the statute must unambiguously impose a binding obligation
on the States. In other words, the provision giving rise to the
asserted right must be couched in mandatory, rather than precatory,
terms.

Id. at 340-41 (citations omitted). Once a plaintiff demonstrates that a statute

creates a federal right, the right is presumptively enforceable under §1983 unless

Congress specifically foreclosed such a remedy. Gonzaga, 536 U.S. at 284 & n.4.

In Wilder v. Va. Hosp. Ass’n, 496 U.S. 498 (1990) the Supreme Court

considered a M edicaid provision with wording very similar to subsection (30)(A),

and the Court did find an enforceable private right. 3 In Gonzaga, 536 U.S. at 283,

3
The statute, which was known as the Boren Amendment and has since been
repealed, was the previous version of 42 U .S.C. § 1902(a)(13). It read as follow s:

a State plan for medical assistance must-
(continued...)

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however, the Supreme Court tightened the first requirement. After Gonzaga, an

enforceable private right exists only if the statute contains nothing “short of an

unambiguously conferred right” and not merely a vague benefit or interest. Id.

No enforceable right exists “where a statute by its terms grants no private rights

to any identifiable class.” Id. at 283-84. Although professing not to overrule

Wilder, Gonzaga recharacterized the earlier decision as a case finding an

enforceable private right in a “provision [that] required States to pay an

‘objective’ monetary entitlement to individual heath care providers.” See

Gonzaga, 536 U.S. at 280; see also id. at 300 n.8 (Stevens, J., dissenting).

3
(...continued)
.....
provide . . . for payment . . . of the hospital services, nursing facility
services, and services in an intermediate care facility for the mentally
retarded provided under the plan through the use of rates (determined
in accordance with methods and standards developed by the
State . . .) which the State finds, and makes assurances satisfactory to
the Secretary, are reasonable and adequate to meet the costs which
must be incurred by efficiently and economically operated facilities
in order to provide care and services in conformity with applicable
State and Federal laws, regulations, and quality and safety standards
and to assure that individuals eligible for medical assistance have
reasonable access . . . to inpatient hospital services of adequate
quality.

42 U.S.C. § 1396a(a)(13)(A) (1982 ed., Supp. V), quoted in Wilder, 496 U.S. at
502-03 (emphasis in quotation).

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 Since Gonzaga, four circuit courts have considered whether subsection

(30)(A) creates an enforceable private right. Three have concluded that the

provision does not create an enforceable right. Westside M others v. Olszewski,

454 F.3d 532, 542-43 (6th Cir. 2006) (concluding that subsection (30)(A) “has an

aggregate focus rather than an individual focus” and its “broad and nonspecific”

language is “ill-suited to judicial remedy”); Sanchez v. Johnson, 416 F.3d 1051,

1059 (9th Cir. 2005) (finding no enforceable private right for recipients or

providers because “nothing in the text of § 30(A) . . . unmistakably focuses on

recipients or providers as individuals” and because “the flexible, administrative

standards embodied in the statute do not reflect a Congressional intent to provide

a private remedy for their violation”); Long Term Pharmacy Alliance v. Ferguson,

362 F.3d 50, 57 (1st Cir. 2004) (finding no enforceable private right for providers

because subsection (30)(A) “has no ‘rights creating language’ and identifies no

discrete class of beneficiaries”). Only one circuit has found an enforceable

private right. Pediatric Specialty Care, Inc. v. Ark. Dep’t of Hum an Servs., 443

F.3d 1005, 1015-16 (8th Cir. 2006) (following prior circuit precedent that

subsection (30)(A) created an enforceable private right for recipients and

providers, and concluding that even after Gonzaga the provision “creates

enforceable rights for both groups”).

W e join the First, Sixth, and Ninth Circuits in concluding that subsection

(30)(A) does not create a federal right enforceable under §1983. Even though

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Wilder addressed a similar statute, our approach is controlled by Gonzaga, the

Supreme Court’s most recent assessment of private rights of action. Applying

that analysis, we conclude that subsection (30)(A) “identifies no discrete class of

beneficiaries.” Long Term Health Care Pharmacy Alliance, 362 F.3d at 57. This

provision refers to recipients only “in the aggregate, as members of ‘the general

population in the geographic area’”; and providers are mentioned only “as indirect

beneficiaries ‘enlisted’ as subordinate partners in the administration of M edicaid

services.” Westside M others, 454 F.3d at 542-43 (quoting 42 U.S.C. §

1396a(a)(30)(A)). Recipients and providers surely benefit from efficient

M edicaid administration, for example, as do taxpayers generally, but subsection

(30)(A) never establishes an “identifiable class” of rights-holders. And without

such an identifiable class, no enforceable federal right is created. Gonzaga, 536

U.S. at 283-84.

Because subsection (30)(A ) fails to satisfy the first of the criteria set forth

in Blessing for establishing a federal right enforceable under § 1983, there is no

need for us to consider the other criteria. See Gonzaga, 536 U.S. at 287-89

(holding that certain provisions of federal law are not privately enforceable under

§ 1983 because there was no congressional intent to confer rights on individual

beneficiaries, without consideration of other Blessing factors); cf. id. at 292

(Breyer, J., concurring) (agreeing with the majority but also concluding that

“[m]uch of the statute’s key language is broad and nonspecific”).

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 One circuit has found that subsection (30)(A ) creates an enforceable private

right. Relying on its own precedent, Wilder, and Gonzaga, the Eighth Circuit

found that both recipients and providers could sue to enforce this subsection.

Pediatric Specialty Care, 443 F.3d at 1015-16. In analyzing Gonzaga, the court

concluded that “[t]he beneficiaries [of subsection (30)(A )] are both the recipients

of the services and the recipients of the state’s payment,” i.e., the providers. Id.

at 1015. W e respectfully disagree. Despite the fact that recipients and providers

ultimately benefit from competent administration, they are nowhere identified in

the statutory provision as a class of beneficiaries. And Gonzaga requires not a

vague benefit or interest but rather an “unambiguously conferred right.” 536 U.S.

at 283. In sum, because the provision does not confer enforceable federal rights

on identified beneficiaries, Gonzaga precludes interpreting subsection (30)(A ) to

create a federal right enforceable under §1983.

IV. Class Certification

Finally, the plaintiffs also challenge the district court’s denial of class

certification. Because this opinion disposes of all issues in the potential class

action, plaintiffs’ motion for class certification is now moot. See Gullickson v.

Sw. Airlines Pilots’ Ass’n, 87 F.3d 1176, 1187 (10th Cir. 1996); Rucker v. St.

Louis Sw. Ry. Co., 917 F.2d 1233, 1237 n.1 (10th Cir. 1990).

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 V. Conclusion

For the foregoing reasons, we AFFIRM the district court’s entry of

judgment in favor of the defendants.

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