United States Court of Appeals
For the First Circuit
No. 02-1697
LORETTA ROLLAND; TERRY NEWTON; BRUCE AMES;
FREDERICK COOPER; MARGARET PINETTE; LESLIE FRANCIS;
TIMOTHY RAYMOND; THE ARC OF MASSACHUSETTS;
STAVROS CENTER FOR INDEPENDENT LIVING,
Plaintiffs, Appellees,
v.
MITT ROMNEY; FREDERICK LASKEY; WILLIAM O'LEARY;
BRUCE M. BULLEN; GERALD MORRISSEY; ELMER C. BARTELS;
HOWARD KOH; TERESA O'HARE,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Kenneth P. Neiman, U.S. Magistrate Judge]
Before
Selya, Circuit Judge,
Coffin and Bownes, Senior Circuit Judges.
Peter T. Wechsler, Assistant Attorney General, with whom
Thomas F. Reilly, Attorney General, was on brief for appellants.
Steven J. Schwartz with whom Cathy E. Costanzo, Center for
Public Representation, Matthew Engel, Disability Law Center,
Richard d'A Belin, Kristi Hatrick, Foley, Hoag & Eliot LLP, Frank
Laski, and Mental Health Legal Advisors were on brief for
appellees.
Buckmaster De Wolf, Howrey Simon Arnold & White, LLP, and
Ethan B. Andelman on brief for The Arc of the United States,
National Association of Protection and Advocacy Systems, Judge
David L. Bazelon Center for Mental Health Law, National Health Law
Program, and National Senior Citizens Law Center, amici curiae.
January 28, 2003
COFFIN, Senior Circuit Judge. Appellants, the governor of the
Commonwealth of Massachusetts and various officials (collectively
referred to as the "Commonwealth"), appeal the decision of the
district court, acting through a magistrate judge, see 28 U.S.C. §
636(c), requiring them to provide certain services to appellees, a
group of adults with mental retardation or other developmental
disabilities who reside in nursing homes in Massachusetts.1
Concluding that the court's interpretation of the applicable
federal law was not in error, we affirm.
I. Background
Residents, then-plaintiffs, filed a section 1983 action
against the Commonwealth in federal district court in 1998 on
behalf of a putative class of approximately 1600 similarly disabled
residents of Massachusetts nursing homes, alleging violations of a
variety of federal statutes, including 42 U.S.C. § 1396r, a part of
the Nursing Home Reform Amendments ("NHRA")2 to the Medicaid law.
The residents sought various forms of relief, but of particular
relevance to this case requested an injunction requiring the
Commonwealth to provide them with "specialized services," a term
1
Two organizational plaintiffs joined appellees below and in
this appeal. In addition, multiple organizations (the Arc of the
United States, the National Association of Protection and Advocacy
Systems, the Judge David L. Bazelon Center for Mental Health Law,
the National Health Law Project, and the National Senior Citizens
Law Center) have provided helpful briefing as amici.
2
For convenience, we refer to the NHRA in the singular.
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given particular meaning in the NHRA and its implementing
regulations.3 The parties allowed a magistrate judge to conduct
proceedings.
Following the judge's denial of the Commonwealth's motion to
dismiss, Rolland v. Cellucci, 52 F. Supp.2d 231 (D. Mass. 1999),
and subsequent mediation by the parties, a settlement agreement
("Agreement") was finalized in November 1999 and operated as a stay
of the litigation. After a fairness hearing, the court endorsed
the Agreement and entered it as an order in January 2000. Rolland
v. Cellucci, 191 F.R.D. 3 (D. Mass. 2000). In the Agreement, the
Commonwealth committed to provide specialized services as defined
by federal regulation to all Massachusetts nursing home residents
with mental retardation who had been identified as needing them
through the preadmission screening and annual resident review
process ("PASARR screening") required by the NHRA.
Enforcement was addressed in the following way. A proviso
stated that the Agreement could not be enforced through breach of
contract or contempt actions. If the residents were dissatisfied
with the Commonwealth's performance, the Agreement authorized them
to enter mediation, and, that failing, seek a judicial
3
We note at the outset that the original statutory term,
"active treatment," was replaced by the language "specialized
services" in 1990 and that the parties disagree about the import of
this change. Several of the congressional reports cited herein,
preceding the change, used the term “active treatment.” The
interrelation of the terms is discussed in detail in Section V
infra.
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determination that the Commonwealth was in substantial
noncompliance with the Agreement. The residents would only then be
entitled to seek relief based upon the "then existing facts and
law."
In September 2000, the residents filed a "Motion for Further
Relief Concerning Specialized Services," asking the court to find
the Commonwealth in noncompliance with the specialized services
portion of the Agreement, contending that a significant number of
class members were not receiving all necessary specialized services
and some class members were not receiving any. Following a
hearing, the judge entered a finding in March 2001 that the
Commonwealth was in substantial noncompliance with its specialized
services obligations and lifted the stay. Rolland v. Cellucci, 138
F. Supp.2d 110 (D. Mass. 2001).
The residents then moved again for further relief, asking the
court to order the Commonwealth to provide specialized services,
which they alleged were required by both federal law and the
Agreement. Following a four-day evidentiary hearing in November
2001, the court, in a well reasoned and thoughtful decision of May
2002, held that the Commonwealth was in violation of federal law as
well as the Agreement by its failure to provide specialized
services to residents who required them.
The court ordered the Commonwealth to take five particular
remedial actions. Specifically at issue here, the district court
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required the Commonwealth to provide specialized services and
implement a policy of "active treatment," another term of art
defined by federal regulation, for all class members needing
specialized services. Although the Commonwealth does not dispute
the court's noncompliance findings, it contests the legitimacy of
the order that it provide specialized services and implement a
policy of active treatment. The Commonwealth has not sought a stay
and has apparently attempted compliance.
The Commonwealth contends that the district court
misconstrued both federal law and the Agreement. The language of
the Agreement, disallowing contempt or breach of contract
proceedings, requires the residents to seek relief based on the
"then existing facts and law." The Commonwealth argues that even
a finding of noncompliance by the court merely allows the residents
"to reopen the litigation." The residents rejoin that such an
interpretation provides them with no more than what they began with
and was not what the parties intended. Rather than grapple with
the question of whether the district court's order was in keeping
with the enforcement provisions of the Agreement, we have assessed
the court's reliance on federal law and have found that
supportable.
II. The NHRA's History and Framework
The history of the NHRA is instructive. During the 1970s,
numerous class action lawsuits were filed against states claiming
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insufficient care and treatment of mentally retarded individuals in
state-run intermediate care facilities for mentally retarded
individuals ("ICF/MRs"). Gen. Accounting Office, Medicaid:
Addressing the Needs of Mentally Retarded Nursing Home Residents 11
(1987) [hereinafter GAO Medicaid Report]. Because of the suits,
thirty states, including Massachusetts, became parties to consent
decrees in which they agreed to improve the quality of care. Id.
At that time, a common method to reduce overcrowding in the ICF/MRs
was to move mentally retarded individuals to Medicaid-certified
nursing homes. H.R. Rep. No. 100-391, pt. 1, at 459 (1987),
reprinted in 1987 U.S.C.C.A.N. 2313, 2313-279.
Residents moved to nursing homes, however, were often deprived
of necessary services. The General Accounting Office found that by
1985, approximately 140,000 mentally retarded individuals resided
in nursing homes nationwide. GAO Medicaid Report at 11. Because
nursing homes were often not equipped to provide the services or
treatment they needed, however, mentally retarded residents
frequently went without them. Id.
In 1987, Congress passed the NHRA, part of the Omnibus Budget
Reconciliation Act, as a response to this apparently widespread
problem. The report from the House of Representatives began:
Substantial numbers of mentally retarded and mentally ill
residents are inappropriately placed, at Medicaid
expense, in [skilled nursing facilities] or ICFs. These
residents often do not receive the active treatment or
services that they need. A recent [Government Accounting
Office] review of mentally retarded residents in [these
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facilities] in Connecticut, Massachusetts, and Rhode
Island concluded that the active treatment needs of these
individuals were generally not being identified or met.
H.R. Rep. No. 100-391, pt. 1, at 459, reprinted in 1987
U.S.C.C.A.N. at 2313-279.
The NHRA attempted to ensure that those placed in nursing
homes actually needed nursing care and that once residing in a
nursing home, individuals would receive the other kinds of
treatment they needed. Towards that end, the NHRA established
requirements for nursing homes in their care of mentally retarded
residents, 42 U.S.C. § 1396r(b); instituted specific enumerated
rights for residents, id. § 1396r(c); and required states to screen
and provide services to mentally retarded residents, id. §
1396r(e).
Specifically, states must perform PASARR screenings of
potential nursing home admittees to determine two things: first,
whether the individual requires nursing facility levels of care,
addressing physical and mental conditions; second, whether the
individual requires specialized services, addressing needs for
training, therapies, and other means of accomplishing improvement
of functioning. Id. § 1396r(e)(7)(A)(i) & (B)(ii). A nursing
facility may admit a person only if the PASARR screening determines
that nursing care is required. Id. § 1396r(b)(3)(F). After
admittance, states must review an individual's needs for nursing
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facility care and specialized services whenever there is a
significant change in the individual's condition. Id.
For mentally retarded individuals who were already living in
nursing homes at the time of the NHRA's enactment, the statute
required states to institute the same two-faceted PASARR screening
process. Id. § 1396r(e)(7)(B)(ii). When then-current residents
were found not to require nursing facility levels of care, the
statute required states to place them elsewhere, with the exception
that those residents who had lived in a nursing care facility for
at least thirty months had the option to remain in residence. Id.
§ 1396r(e)(7)(C). For all residents found not to require nursing
facility care, states were explicitly required to provide all
needed specialized services, regardless of whether the residents
remained housed in nursing facilities. Id.4
4
The statute differentiated among three groups of then-current
nursing facility residents based on their PASARR screening results:
(C) Response to preadmission screening and resident
review
As of April 1, 1990, the State must meet the following
requirements:
(i) Long-term residents not requiring nursing facility
services, but requiring specialized services
In the case of a resident who is
determined, under subparagraph (B), not to
require the level of services provided by a
nursing facility, but to require specialized
services for mental illness or mental
retardation, and who has continuously resided
in a nursing facility for at least 30 months
before the date of the determination, the
State must, in consultation with the
resident's family or legal representative and
care-givers--
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(I) inform the resident of the institutional
and noninstitutional alternatives covered
under the State plan for the resident,
(II) offer the resident the choice of
remaining in the facility or of receiving
covered services in an alternative appropriate
institutional or noninstitutional setting,
(III) clarify the effect on eligibility for
services under the State plan if the resident
chooses to leave the facility (including its
effect on readmission to the facility), and
(IV) regardless of the resident's choice,
provide for (or arrange for the provision of)
such specialized services for the mental
illness or mental retardation.
. . . .
(ii) Other residents not requiring nursing facility
services, but requiring specialized services
In the case of a resident who is determined, under
subparagraph (B), not to require the level of services
provided by a nursing facility, but to require
specialized services for mental illness or mental
retardation, and who has not continuously resided in a
nursing facility for at least 30 months before the date
of the determination, the State must, in consultation
with the resident's family or legal representative and
care-givers--
(I) arrange for the safe and orderly discharge
of the resident from the facility, consistent
with the requirements of subsection (c)(2) of
this section,
(II) prepare and orient the resident for such
discharge, and
(III) provide for (or arrange for the
provision of) such specialized services for
the mental illness or mental retardation.
(iii) Residents not requiring nursing facility services
and not requiring specialized services
In the case of a resident who is determined, under
subparagraph (B), not to require the level of services
provided by a nursing facility and not to require
specialized services for mental illness or mental
retardation, the State must--
(I) arrange for the safe and orderly discharge
of the resident from the facility, consistent
with the requirements of subsection (c)(2) of
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Despite its detailed mandates, the statute does not explicitly
answer the question of whether states must provide specialized
services to "dual need residents," those who need both nursing
facility care and specialized services, as contrasted with those
who do not need nursing facility care but do need specialized
services. The Secretary of the United States Department of Health
and Human Services ("HHS") has found this obligation to provide
specialized services for dual need residents to be implicit in the
statute and has explicitly imposed it on states through regulation.
See 42 C.F.R. § 483.120(b).
The Commonwealth presents several arguments in support of its
position that it is not obligated to provide specialized services
to dual need residents. First, it infers from the statutory
silence on this issue that it has no such obligation and contends
that the regulation that does so obligate it is unenforceable
because it is contrary to the statute's intent. Second, the
Commonwealth argues that even if the NHRA does impliedly require it
to provide specialized services to dual need residents, the
residents do not have a private right of action to enforce the
Commonwealth's obligation. Third, the Commonwealth takes issue
this section, and
(II) prepare and orient the resident for such
discharge.
42 U.S.C. § 1396r(e)(7)(C).
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with the court's order that it implement a policy of active
treatment for all mentally retarded residents who need specialized
services.
III. Whether the NHRA Requires States to Provide
Specialized Services to Dual Need Residents
The Commonwealth argues that the NHRA requires it to provide
specialized services only to those individuals who are found not to
require nursing home care but to need specialized services,
regardless of whether such individuals continue to reside in
nursing care facilities. The Commonwealth construes the statutory
silence on its obligation to residents with dual needs as support
for its position. It further contends that the regulation
explicitly creating the obligation to provide specialized services
for dual need residents is ultra vires and therefore unenforceable.
As always, the plain meaning of the statutory language, as
derived from the whole of the statute, including its overall policy
and purpose, controls. See Summit Inv. & Dev. Corp. v. Leroux, 69
F.3d 608, 610 (1st Cir. 1995). Further, "the congressional
intendment conveyed by unclear statutory language may be
discernible from its legislative history." Id. (citing O'Neill v.
Nestle Libbys P.R., Inc., 729 F.2d 35, 36 (1st Cir. 1984)).
In this case, also available are interpretations of the
statutory provisions at issue from HHS, the agency responsible for
their implementation. Where an agency has been endowed with the
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power to administer a congressionally created program, as here,
regulations should be given substantial deference:
If Congress has explicitly left a gap for the agency to
fill, there is an express delegation of authority to the
agency to elucidate a specific provision of the statute
by regulation. Such legislative regulations are given
controlling weight unless they are arbitrary, capricious,
or manifestly contrary to the statute.
Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837,
843-44 (1984); see also United States v. Meade Corp., 533 U.S. 218,
227 (2001)("Delegation of such authority may be shown in a variety
of ways, as by an agency's power to engage in adjudication or
notice-and-comment rulemaking, or by some other indication of a
comparable congressional intent."). As this court has held, "[a]n
inquiring court – even a court empowered to conduct de novo review
– must examine the Secretary's interpretation of the statute, as
expressed in the regulation, through a deferential glass."
Strickland v. Comm'r, Maine Dep't of Human Servs., 48 F.3d 12, 16
(1st Cir. 1995).
Applying these precepts to the question of whether Congress
intended to require states to provide specialized services to dual
need residents, we look first at the NHRA's plain language. The
NHRA is silent on this precise question, but we gather clues of
congressional intent from several separate provisions in the
statute, ever mindful of its overriding purpose, to protect
individuals from being warehoused in nursing facilities and denied
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necessary services. See H.R. Rep. No. 100-391, pt. 1, at 459,
reprinted in 1987 U.S.C.C.A.N. at 2313-279.5
First, although the NHRA does not specify states’ obligations
to provide specialized services to dual need residents, it does
explicitly require states to provide specialized services to
residents who do need them but who do not require nursing facility
care. It is clear that the statute's intent in this regard was not
to elevate those individuals with only the need for specialized
services above those with dual needs, but rather to bring them up
to par with the dual needs group. Indeed, this explicit language
appears designed to ensure that those most likely to be left out –
those not in a facility – received specialized services if needed.
As such, the basic stance of the Commonwealth seems
counterintuitive. Under its analysis, for example, it would supply
specialized services to those with needs insufficient to require
5
The GAO investigative report, cited by the House of
Representatives, explained:
Mentally retarded residents in Connecticut,
Massachusetts, and Rhode Island nursing homes generally
have not had their active treatment needs identified and
met. These conditions existed because nursing homes were
not part of the service delivery network for the
retarded, nursing homes did not prepare written plans of
care to assess the active treatment needs of their
retarded residents and develop programs to meet those
needs, and state inspectors were not determining whether
retarded residents were receiving needed active treatment
services.
GAO Medicaid Report at 3.
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nursing home care but deny such services to those substantially
worse off.6
Second, an internal signal of great importance is derived from
the screening requirements for both then-current and potential
residents, necessitating determinations of whether nursing facility
care is required and whether specialized services are required. If
Congress had intended that states manage reviews in a two-tiered
fashion, conducting the specialized services portion of the
screening only for those found not to need nursing facility care,
it easily could have written the statute in such a manner. As the
residents point out, the Commonwealth's construction of the statute
would render the second prong of the PASARR screening requirements
for specialized services a meaningless exercise for individuals
found to need nursing facility care in the first prong because the
Commonwealth would not be required to provide them.
Given that Congress instead structured the requirement as
involving both steps for every individual, it must have
contemplated that states would utilize the information from both
portions of the PASARR screening. This conclusion is bolstered by
the fact that Congress committed to funding seventy-five percent of
6
The fact that residents with thirty months or more of
occupancy in nursing facilities who wished to remain, but did not
require nursing care, are guaranteed specialized services, poses
the picture even more dramatically – that of a physically robust
resident receiving habilitative specialized services while his
ailing housemate is ignored.
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the costs of screening, 42 U.S.C. § 1396b(a)(2)(C), and assuredly
would not have assumed three-quarters of the expenses unless the
reviews were to render useful results. A Senate Budget Committee
report issued two years after the NHRA’s enactment confirms that
Congress viewed the law as holding states responsible for
specialized services (then termed "active treatment") for all who
needed them:
If a resident is found to be mentally ill or mentally
retarded and requires nursing facility care, the
individual may reside in a facility, but the State is
required to provide active treatment if the individual is
found to need it.
. . . .
The law implies, but does not explicitly indicate,
that it is the obligation of a State to furnish “active
treatment” to an individual who needs it.
135 Cong. Rec. S13057, S13238 (daily ed. Oct. 12, 1989).
A third statutory clue to Congress's intent can be discerned
in the requirement that states create an appeals process for
individuals adversely impacted by the outcome of any PASARR
screening determination. See 42 U.S.C. § 1396r(e)(7)(F). It is
clear that Congress perceived the screening as vesting individuals
with rights to the services deemed necessary:
Individuals could be adversely affected not only by a
determination that he or she does not need nursing
facility services, but also by determinations that he or
she does not need active treatment. . . . The Committee
expects that these appeal procedures will offer mentally
ill and mentally retarded individuals at least the due
process protections of a Medicaid fair hearing under
current law, including notice of the right to appeal,
right to representation by counsel, and right to a fair
hearing and impartial decision-making process.
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H.R. Rep. No. 100-391, pt. 1, at 462-63, reprinted in 1987
U.S.C.C.A.N. at 2313-282 to 2313-283. This language strongly
suggests that Congress intended the determination of need for
specialized services to result in the provision or denial of those
services for every individual screened.
Reviewing finally the interpretation of the statute by the
federal agency responsible for its implementation, HHS, we find
that Congress gave the Secretary very broad duties under the NHRA:
It is the duty and responsibility of the Secretary
to assure that requirements which govern the provision of
care in nursing facilities under State plans approved
under this subchapter, and the enforcement of such
requirements, are adequate to protect the health, safety,
welfare, and rights of residents and to promote the
effective and efficient use of public moneys.
42 U.S.C. § 1396r(f)(1). Specifically, Congress required the
Secretary to oversee the PASARR screening process by developing
"minimum criteria for States to use in making [screening]
determinations . . . and in permitting individuals adversely
affected to appeal such determinations." Id. § 1396r(f)(8)(A).
Further, the NHRA required the Secretary to specifically monitor
state compliance with certain requirements. Id. § 1396r(f)(8)(B).
The Secretary has promulgated a rule explicitly requiring
states to provide specialized services to dual need residents.
See 42 C.F.R. § 483.116(b).7 During the comment period, states
7
The regulation states:
If the State mental health or mental retardation
authority determines that a resident or applicant for
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objected to this requirement, noting that the statute explicitly
required them to provide specialized services only to those
residents who did not need nursing facility services but who did
need specialized services. The Secretary responded:
In our view, the law does require that the States provide
specialized services to persons in [nursing facilities
"NFs")] who have been determined through their PASARR
programs to require both NF services and specialized
services. While the statute contains no explicit
reference to provision of specialized services to those
residents with dual needs, we are, in placing this
requirement on States, relying on the central theme of
all the [NHRA] provisions which is that all of a
resident's needs must be identified and served. Congress
could not possibly have intended that the specialized
services needs of those residents who also need NF
services, and are therefore approved for NF residence,
should be ignored or go unmet. Since the description of
specialized services at section 1919(e)(7)(G) clearly
indicates that specialized services is beyond the scope
of NF services, the NF cannot be required to provide it.
Both the statute and the legislative history indicate
that the provision of specialized services is solely a
State responsibility . . . . The logical corollary is
that the State must provide specialized services to
residents with dual needs.
57 Fed. Reg. 56,450, 56,477 (Nov. 30, 1992) (emphasis added).
admission requires both a [nursing facility ("NF")] level
of services and specialized services for the mental
illness or mental retardation–
. . . .
(2) The State must provide or arrange for the
provision of the specialized services needed
by the individual while he or she resides in
the NF.
See also 42 C.F.R. § 483.120(b) ("The State must provide or arrange
for the provision of specialized services . . . to all NF residents
with [mental illness or mental retardation] whose needs are such
that continuous supervision, treatment and training by qualified
mental health or mental retardation personnel is necessary."
(emphasis added)).
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The Commonwealth contends that the regulation is unenforceable
because it exceeds the bounds of the statute and "runs directly
counter to one of the primary purposes of the Act, namely, the
conservation of federal and state funds." Because the regulations
are contrary to congressional intent, they are without force, the
Commonwealth concludes.
Although we agree with the Commonwealth's assertion that if
the regulation were contrary to congressional intent, it would be
unenforceable, we do not find the contested regulation to be so.
It almost should go without saying that Congress was concerned with
fiscal conservatism, but clearly the statute's primary purpose is
to ensure that the needs of all mentally retarded nursing facility
residents are identified and served. See H.R. Rep. No. 100-391,
pt. 1, at 459, reprinted in 1987 U.S.C.C.A.N. at 2313-279. The
regulation manifests coherence with this goal, and as such, is not
contrary to the statute, arbitrary, or capricious. It follows that
it is endowed with controlling authority. See Chevron, 467 U.S. at
843-44.
In conclusion, the statutory language and legislative history,
as well as agency interpretations, all lead us to adjudge that the
Commonwealth is required to provide dual need residents with
specialized services if screening deems them necessary.
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IV. Whether the Right to Specialized Services
is Privately Enforceable
The Commonwealth next argues that the NHRA does not create a
private right of action for the residents. Thus, even if the
residents are entitled to specialized services under the statute,
the Commonwealth contends, the statute does not endow them with the
right to enforce that entitlement through an action brought under
42 U.S.C. § 1983.
Section 1983 allows individuals to bring claims in federal
court based on alleged "deprivations of any rights, privileges, or
immunities secured by the Constitution and laws." A section 1983
claim would not be permitted where the statute did not create
enforceable rights, privileges, or immunities or where "Congress
has foreclosed such enforcement of the statute in the enactment
itself." Wright v. City of Roanoke Redev. & Hous. Auth., 479 U.S.
418, 423 (1987).
The Commonwealth particularly contends that the statute does
not create an enforceable right. The determination of whether a
federal statute creates a private right for the residents turns on
Congress's intent. See Alexander v. Sandoval, 532 U.S. 275, 286
(2001); Middlesex County Sewerage Auth. v. Nat'l Sea Clammers
Ass'n, 453 U.S. 1, 13 (1981).8 We consider de novo whether the
8
In Sandoval, the Court explained that "[t]he judicial task is
to interpret the statute Congress has passed to determine whether
it displays an intent to create not just a private right but also
a private remedy." Sandoval, 532 U.S. at 286. The Court
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statute reflects this intent. See Bryson v. Shumway, 308 F.3d 79,
84 (1st Cir. 2002).
Traditionally, the three indicators of congressional intent to
create an enforceable right have been:
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.
Blessing v. Freestone, 520 U.S. 329, 340-41 (1997) (citing Wilder
v. Virginia Hosp. Ass'n, 496 U.S. 498, 510-11 (1990); Wright, 479
U.S. at 430-32). Further, as the Supreme Court remarked in Cannon
v. University of Chicago, 441 U.S. 677 (1979), "the right- or duty-
creating language of the statute has generally been the most
subsequently clarified that:
Plaintiffs suing under § 1983 do not have the burden of
showing an intent to create a private remedy because §
1983 generally supplies a remedy for the vindication of
rights secured by federal statutes. . . . Once a
plaintiff demonstrates that a statute confers an
individual right, the right is presumptively enforceable
by § 1983. But the initial inquiry – determining whether
a statute confers any right at all – is no different from
the initial inquiry in an implied right of action case,
the express purpose of which is to determine whether or
not a statute "confer[s] rights on a particular class of
persons."
Gonzaga Univ. v. Doe, 536 U.S. 273, 322 (2002) (quoting California
v. Sierra Club, 451 U.S. 287, 294 (1981)) (footnotes omitted).
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accurate indicator of the propriety of implication of a cause of
action." Id. at 690 n.13.9
Importantly, a regulation "may invoke a private right of
action that Congress through statutory text created, but it may not
create a right that Congress has not." Sandoval, 532 U.S. at 291.
Nevertheless, regulations that "merely interpret a statute may
provide evidence of what private rights Congress intended to
create." Love v. Delta Air Lines, 310 F.3d 1347, 1354 (11th Cir.
2002) (citing Sandoval, 532 U.S. at 284); see also Wright, 479 U.S.
at 427 (utilizing agency interpretation to assist in determining
whether statute created right of action). And the agency view on
this issue is entitled to some deference. See Wright, 479 U.S. at
427 (citing Jean v. Nelson, 472 U.S. 846, 865 (1985); Chevron, 467
U.S. at 844).
Preliminarily, we confirm that "rights-creating" language is
prevalent in the NHRA. "Rights-creating language" can be
characterized as language that "explicitly confer[s] a right
9
Some courts have concluded that Sandoval represents the
culmination of a trend to recede from the multi-factor analysis
begun in Cort v. Ash, 442 U.S. 66 (1975), in favor of an exclusive
focus on congressional intent. See, e.g, Love v. Delta Air Lines,
310 F.3d 1347, 1351-52 (11th Cir. 2002). The Commonwealth has not,
however, suggested this and argues along the lines of the Blessing
three-factor test. Therefore, our analysis follows the
Commonwealth's arguments, while keeping at the forefront the
penultimate question of whether Congress intended to create a
private right of action in favor of the residents. See Bryson, 308
F.3d at 88 ("Ultimately, of course, this is an issue of
congressional intent, and the three tests are just a guide.").
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directly on a class of persons that include the plaintiff."
Cannon, 441 U.S. at 690 n.13. Rights-creating language has also
been found in provisions that identify "'the class for whose
especial benefit the statute was enacted.'" Id. at 688 n.9
(quoting Texas & Pacific Ry. Co. v. Rigsby, 241 U.S. 33, 39
(1916)). Statutory language that protects the general public, such
as that customarily found in criminal statutes, or that is simply
a ban on discriminatory conduct by recipients of federal funds, is
far less likely to imply a private remedy than rights-creating
language. See id. at 690-94.
The NHRA speaks largely in terms of the persons intended to be
benefitted, nursing home residents, a significant factor in Cannon.
The statute contains a laundry list of rights to be afforded
residents and commands certain state and nursing home activities in
order to ensure that residents receive necessary services.10 In
10
The statute endows residents with rights, among others, to
choose their personal attending physicians, to be fully informed
about and participate in care and treatment, to be free from
physical or mental abuse, to voice grievances, and to enjoy privacy
and confidentiality. 42 U.S.C. § 1396r(c)(1)(A). It requires
nursing homes, among other things, to care for residents in a
manner promoting quality of life, provide services and activities
to maintain the highest practicable physical, mental and
psychosocial well-being of residents, and conduct comprehensive
assessments of residents' functional abilities. Id. §
1396r(b)(1),(2) & (3). States, in addition to being required to
conduct the PASARR screenings, must review training and competency
programs for nurse aides, provide appeal procedures for residents
contesting discharges or transfers, and develop written notices of
the rights of nursing facility residents. Id. § 1396r(e)(1),(3) &
(6).
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short, after clearly identifying those it seeks to protect, the
statute goes on to endow them with particular rights, utilizing
"rights-creating" language.
We turn now to the Blessing factors. The Commonwealth does
not contest that the provision in question intends to benefit
persons such as the residents, but does contend that the right
asserted by the residents is vague and amorphous and that the
statute does not unambiguously impose a binding obligation on
states.
A. Whether the Right is Vague and Amorphous
The Commonwealth argues that the term "specialized services"
is too vague and amorphous to translate into a right amenable to
judicial enforcement. It stresses that the NHRA does not define
the term, but instead delegates the task of definition to the
Secretary, and contends that the regulatory definition only
obscures the meaning of the term.
The statute's delegation of authority to define "specialized
services" for mentally retarded nursing home residents provides the
Secretary with unlimited discretion to craft a definition, the only
limitation being that it must exclude “services within the scope of
services which the facility must provide or arrange for its
residents.” 42 U.S.C. § 1396r(e)(7)(G)(iii). The Secretary's
promulgated definition, specific to mental retardation, is as
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follows: "For mental retardation, specialized services means the
services specified by the State which, combined with services
provided by the NF or other service providers, results in treatment
which meets the requirements of 483.440(a)(1)." 42 C.F.R. §
483.120(a)(2). Section 483.440(a)(1) of the regulations, in turn,
sets a standard of "active treatment" for the provision of
specialized services:
Each client must receive a continuous active treatment
program, which includes aggressive, consistent
implementation of a program of specialized and generic
training, treatment, health services and related services
described in this subpart, that is directed toward –
(i) The acquisition of the behaviors necessary for the
client to function with as much self determination and
independence as possible; and
(ii) The prevention or deceleration of regression or loss
of current optimal functional status.
42 C.F.R. § 483.440(a)(1).
The Commonwealth relies on the concurrence in Gonzaga
University v. Doe, 536 U.S. 273 (2002), declaring that the
statutory right of the plaintiff to be protected from the
unconsented-to release of his educational records was too vague.
The concurring justices believed that key language, such as the
term "education records," was broad and nonspecific, leaving
schools with great uncertainty about what information they could
reveal from their records. Id. at 326 (Breyer, J., concurring).
The language at issue here, however, is more akin to examples
found by the Supreme Court not to be vague and amorphous. For
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example, in Wright, low-income tenants challenged a housing
authority's right to charge for utilities above a statutorily
mandated "reasonable" rent ceiling. The defendant housing
authority asserted that a tenant's right not to be charged more
than a "reasonable" amount for utilities was vague and amorphous.
In holding that the tenants' rights were enforceable, the Court
noted that the regulations set out particular guidelines for
housing authorities to follow when setting reasonable utility
charges and required that tenants have notice and opportunity to
comment. Wright, 479 U.S. at 431-32.
More recently, in Livadas v. Bradshaw, 512 U.S. 107 (1994),
petitioner, a former employee, asserted that her rights "to
complete the collective-bargaining process and agree to an
arbitration clause" under the National Labor Relations Act had been
abridged. Id. at 134. The rights claimed by the petitioner were
not explicit in the statute. Nevertheless, the Court held that
even though they were "not provided in so many words," the
petitioner’s rights were sufficiently manifest in the statute's
structure to avoid being vague and amorphous. Id.
In Martin v. Voinovich, 840 F. Supp. 1175 (S.D. Ohio 1993), a
district court grappled with the contention that the PASARR
screening requirements, inextricably tied to the provision of
services at issue here, were vague and amorphous. Id. at 1200.
The court held that they were not:
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The implementing PASARR regulations contain numerous
requirements and give detailed guidance and definitions
about how, when and by whom the required PASARR
determinations are to be made. . . . [T]he basic
requirement derived from the statutory provisions, that
the State must make PASARR determinations, is supported
not only by fairly specific statutory language, but also
a comprehensive regulatory scheme explaining exactly how
the determinations are to be undertaken.
Id.
In the instant case, the NHRA expressly delegates authority to
define "specialized services" and the Secretary has complied. The
agency's definition, consistent with rights affirmed in prior case
law, provides contextual guidance, and it is sufficient to allow
residents to understand their rights to services, states to
understand their obligations, and courts to review states' conduct
in fulfilling those obligations. In complex areas such as this,
more cannot reasonably be expected.
B. Whether the NHRA Unambiguously Binds the States
The Commonwealth asserts that the final Blessing factor is not
present because the NHRA does not unambiguously bind states. It
relies in particular on the fact that the statute, while
conditioning funding on compliance with other sections, does not
explicitly tie funding to the provision of specialized services.
Reviewing the language of the NHRA, however, we conclude that
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it does unambiguously bind states.11 The statutory requirements for
states and nursing facilities are clearly mandatory rather than
advisory. The word "must" is repeated frequently. See Bryson, 308
F.3d at 89 (concluding that the words "must" and "shall" denoted
statutory requirements rather than mere guidelines). For example,
with regard to the prescreening for new residents, nursing
facilities "must not admit" any new resident who has not been
screened by the state, 42 U.S.C. § 1396r(b)(3)(F); they "must
provide" specified services, id. § 1396r(b)(4)(A); and they "must"
inform residents of their legal rights, id. § 1396r(c)(1)(B).
States are instructed that they "must have in effect a preadmission
screening program," id. § 1396r(e)(7)(A)(i); they "must review and
determine" whether current nursing facility residents require
nursing facility levels of care and specialized services, id. §
1396r(e)(7)(B)(i); and they "must" utilize the results of that
screening in order to house and serve residents in specific ways,
id. § 1396r(e)(7)(C). Not only are the directives mandatory, but
deadlines are often prescribed. See, e.g., id. § 1396r(b)(3)(F) &
(e)(7)(A)-(C). This is not a situation akin to that in Sandoval,
where the sole source of the right at issue was found in the
regulations and the statute did not utilize rights-creating
11
Lower courts addressing the question of whether the NHRA
unambiguously binds the states have concluded that it does. See
Ottis v. Shalala, 862 F. Supp. 182, 186-87 (W.D. Mich. 1994);
Martin, 840 F. Supp. at 1200. The Commonwealth has not supplied
cites for any cases holding otherwise, nor are we aware of any.
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language, limited the agency's ability to effectuate individual
rights, and focused on the implementing agency rather than the
individuals being protected. See Sandoval, 532 U.S. at 288-89.
With regard to funding, the Commonwealth points out that
federal Medicaid funding is not specifically conditioned upon the
provision of specialized services. For support, it cites Pennhurst
State School & Hospital v. Halderman, 451 U.S. 1 (1981), wherein
the Supreme Court relied in part on the absence of a direct funding
condition in holding that the statute did not intend to
unambiguously bind the states. Id. at 17. The NHRA is far
different from the federal statute reviewed by the Supreme Court in
Pennhurst, in which Congress "'legislate[d] by innuendo, making
declarations of policy and indicating a preference while requiring
measures that, though falling short of legislating its goal, serve
as a nudge in the preferred directions.'" Id. at 19 (citations
omitted). As the Commonwealth acknowledges, however, such a
condition is only "one means of manifesting a Congressional intent
to impose a requirement on the states." In the case before us, we
find other and sufficient indicia of intent.
Moreover, we discern at least an attenuated link between
funding and the provision of specialized services. Section
1396r(e)(7)(D) of the NHRA requires that funding to a state be
denied if the state fails to conduct the PASARR screenings
prescribed by subsections 1396r(b)(3)(F) and (e)(7)(B). Thus,
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although the funding incentive is not directly tied to states'
provision of specialized services, funding is conditioned on
completion of the screening leading to the provision of services.
42 U.S.C. § 1396r(e)(7)(D)(i). The suggestion that a sanction
could result from a state failing to provide specialized services
is at least implicit. In any event, the language of the statute
depicts an unmistakable desire to mandate state behavior.
Because we find that the right at issue is not vague and
amorphous and that the NHRA unambiguously binds the states, we hold
that the residents are endowed with a private right of action,
which they may enforce via section 1983.
V. Whether the Court Erred in Requiring the Commonwealth to
Implement a Policy of Active Treatment
We move now to the final question: whether the district court
erred in requiring the Commonwealth to implement a policy of
"active treatment" for mentally retarded residents needing
specialized services. The Commonwealth protests the district
court's "conflation" of the terms "active treatment" and
"specialized services," asserting that an active treatment standard
is beyond its obligation, besides being unattainable.
To be sure, the distinction between specialized services and
active treatment lacks easy definition for those outside the
discipline. Congress itself has utilized both terms at different
times and the current regulations use "active treatment" to define
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"specialized services" with regard to those with mental
retardation. The Commonwealth explains that "active treatment" is
a global concept embodied by "a model of service delivery that
underlies all of the activities of a person," traditionally applied
in ICF/MRs, while "specialized services" are "a specific set of
interventions aimed at promoting skill acquisition and preventing
regression, as provided through various service models."
Additionally, the amici explain that the active treatment standard
of care has been developed through years of implementation in
ICF/MRs, but, until the NHRA, had not been utilized in the care of
individuals with mental illness. As the Secretary later
acknowledged, those concerned with applying the concept to persons
with mental illness were unclear as to the term's meaning and scope
in that context. See 57 Fed. Reg. 56,450, 56,472 (Nov. 30, 1992).
When the NHRA was enacted, it mandated that states provide
"active treatment" to individuals with mental illness as well as
those with mental retardation. Omnibus Budget Reconciliation Act
of 1997, P.L. No. 100-203, § 4211, 101 Stat. 1330 (1987). Congress
instructed the Secretary to define "active treatment," and gave no
direction other than excluding, for nursing facility residents,
services that fell within the responsibility of the facilities, as
opposed to the responsibility of the states. Id.
Three years later, Congress passed several "minor and
technical" amendments to the NHRA. The amendments replaced the
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term "active treatment" with "specialized services," Omnibus Budget
Reconciliation Act of 1990, P.L. No. 101-508, § 4801(b)(8), 104
Stat. 1388 (1990), and again gave the Secretary broad discretion to
create a definition, as long as it excluded services provided by
the nursing facilities, 42 U.S.C. § 1396r(e)(7)(G)(iii).
The House of Representatives report confirms that the change
was intended to clarify that "active treatment" did not necessarily
have the same application for all groups covered by the NHRA as it
did in its traditional application in the context of mental
retardation in ICF/MRs. H.R. Rep. No. 101-881, at 118 (1990),
reprinted in 1990 U.S.C.C.A.N. 2017, 2130 (“In response to some
confusion that has arisen over the development of [the term 'active
treatment'], the Committee bill clarifies, that for the purposes of
meeting the [NHRA] requirements, the term 'active treatment' does
not necessarily have the same meaning as it does for the purposes
of meeting the Medicaid requirements for intermediate care
facilities for the mentally retarded.” (emphasis added)). The
Senate report reiterated that "specialized services [should]
include active treatment where appropriate." 136 Cong. Rec.
S15629, S15661 (daily ed. Oct. 18, 1990).
The Commonwealth disregards the discretion given to the
Secretary as well as the critical importance of the word
"necessarily." The Secretary, in recognition of the distinction
being made, created two definitions of specialized services. For
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those with mental illness, "specialized services" are defined as
services "specified by the State which, combined with services
provided by the NF, results in the continuous and aggressive
implementation of an individualized plan of care" developed by an
interdisciplinary team, prescribing specific therapies and
activities, and directed toward diagnosing and reducing behavioral
symptoms and improving functioning. 42 C.F.R. § 483.120(a)(1).
For individuals with mental retardation, such as the appellees
here, however, the Secretary crafted a definition of specialized
services that incorporated the active treatment standard
traditionally applied in ICF/MRs. The Secretary defined
specialized services for these individuals as "the services
specified by the State which, combined with services provided by
the NF or other service providers, results in treatment which meets
the [active treatment] requirements of § 483.440(a)(1)." Id. §
483.120(a)(2).12 Again, Chevron directs that such regulations,
12
The Secretary also remarked in comment:
Essentially we are simply substituting one term for
another. We believe this is the intent of Congress as
well as of those groups which sought the legislative
change from Congress.
. . . .
Originally, the term active treatment referred to a
mode of treatment rather than a set of treatments. By
exchanging the term "specialized services" for "active
treatment," we are substituting terms and not concepts.
We wish to preserve the original intent of emphasizing
the mode and intensity of treatment rather than the
separate and distinct nature of these specialized
services.
57 Fed. Reg. 56,450, 56,472 (Nov. 30, 1992).
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flowing from an express delegation of authority, be given
controlling weight unless arbitrary, capricious, or manifestly
contrary to the statute, none of which apply here.
Thus, the regulations require states to provide specialized
services in such a manner as to constitute active treatment to
mentally retarded individuals when combined with the services
provided by others. Contrary to the Commonwealth's protestations,
however, they do not impose on states, when serving mentally
retarded nursing home residents, the considerable onus of complying
with every obligation placed on them in their broader role in
ICF/MRs.
The district court ordered the Commonwealth to "implement a
clear policy of 'active treatment' to be provided to all class
members who need specialized services." The magistrate judge spent
considerable time in his opinion evaluating the Commonwealth's
argument that the standard was unworkable, concluding that the use
of the active treatment standard by the Commonwealth's contracted
agent evidenced that the standard could in fact be utilized. The
court also made the compelling factual findings that the
Departments of Mental Retardation, Medical Assistance, and Public
Health had created a joint training program mirroring active
treatment criteria and that the independent expert chosen by the
parties, as well as at least one of the Commonwealth's experts,
utilized the active treatment standard in their evaluations. Given
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the history of the statutory changes, the regulatory language, and
the district court's factual findings, we cannot say that the court
erred in holding the Commonwealth responsible for providing
specialized services in a way that results in active treatment when
combined with services provided by nursing facilities and others.
Although the district court did not impose on the Commonwealth
any particular method of compliance, it may benefit the
Commonwealth to continue its efforts to improve the coordination of
services between itself and nursing homes. Other remedial actions
ordered by the court and not challenged by the Commonwealth on
appeal, such as requiring the Commonwealth to establish an
individual service plan and coordinator for each member of the
putative class, will also likely assist the Commonwealth in meeting
its obligations.
VI. Conclusion
We can understand the Commonwealth's posture in this case,
especially given its exigent budgetary circumstances. In the
complex field of care for mentally retarded individuals and the
related regulation of nursing homes and states, however, Congress
has made it clear that the Secretary is to fill in gaps and provide
definition. The products of that delegation of authority,
responding to widespread documented problems, provide an effective
manner for care of mentally retarded nursing home residents and are
entitled to deference. Finally, the history of cooperation between
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the Commonwealth and the residents gives us confidence that the
Commonwealth will be able to meet its obligations and accomplish
the tasks ordered by the district court.
Affirmed.
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