Sabree Ex Rel. Sabree v. Richman

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit

5-11-2004

Sabree v. Richman
Precedential or Non-Precedential: Precedential

Docket No. 03-1226

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004

Recommended Citation
"Sabree v. Richman" (2004). 2004 Decisions. Paper 667.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/667

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
 PRECEDENTIAL PENNSYLVANIA
D.C. Civil No. 02-cv-03426
UNITED STATES COURT OF District Judge: The Honorable Herbert J.
APPEALS Hutton
FOR THE THIRD CIRCUIT

Argued: September 11, 2003
No. 03-1226

Before: ALITO, BARRY, and AMBRO,
HASSAN SABREE, By his Mother and Circuit Judges
Next-Friend, Hana Sabree;
CATHERINE MEADE, By her Father (Opinion Filed: May 11, 2004)
and Next-Friend, Robert A.
Meade; JOSEPH FRAZIER, By his
Mother and Next-Friend,
Patricia Frazier, for Themsleves and All Stephen F. Gold, Esq. (Argued)
Others Similarly 125 South 9th Street
Situated Suite 700
Philadelphia, PA 19107
v. -AND-
Ilene W. Shane, Esq.
* ESTELLE B. RICHMAN, In Her Disabilities Law Project
Official Capacity as Secretary of 1315 Walnut Street
the Department of Public Welfare of the Suite 400
Commonwealth of Philadelphia, PA 19107
Pennsylvania
Attorneys for Appellants
Hassan Sabree, Catherine
Meade, and Joseph Frazier,
Appellants Doris M. Leisch, Esq. (Argued)
Commonwealth of Pennsylvania
*{Substitution Pursuant to Clerk's Department of Public Welfare
Order dated 3/28/03 1400 Spring Garden Street
and F.R.A.P. Rule 43(c)} State Office Building
Philadelphia, PA 19130
-AND-
APPEAL FROM THE UNITED John A. Kane, Esq.
STATES DISTRICT COURT Commonwealth of Pennsylvania
FOR THE EASTERN DISTRICT OF Office of Legal Counsel

1
Department of Public Welfare imposed on it by Congress.
P.O. Box 2675
Health & Welfare Building Plaintiffs are a class of mentally
Seventh & Forster Streets retarded adults in need of medical
Harrisburg, PA 17120 services from an intermediate care
facility for persons with mental
Attorneys for Appellees retardation (“ICF/MR services”).
Although they qualify for state assistance
to obtain these services under the
Sarah Somers, Esq. Medicaid Act, that assistance has not
National Health Law Program been forthcoming. In an effort to force
211 North Columbia Street Pennsylvania to provide the needed
Chapel Hill, NC 27514 services, plaintiffs, pursuant to 42 U.S.C.
§ 1983, sued the Secretary of the
Attorney for Amicus-Appellants Pennsylvania Department of Public
Welfare. Pennsylvania argues that it
would provide assistance if it could but
that it cannot, and that, in any event, the
OPINION OF THE COURT sole remedy for its non-compliance with
the Medicaid Act is the suspension or
revocation of funding from Congress.
We disagree.1
BARRY, Circuit Judge
1
I. INTRODUCTION There appears to be a disagreement
among our sister courts of appeals as to
When Congress offers money to whether, pursuant to Medicaid, a state
the states, it often imposes conditions on must merely provide financial assistance
acceptance. States welcome federal to obtain covered services, or provide the
funding to help underwrite many of the services themselves. See Bruggeman v.
core services they provide to their Blagojevich, 324 F.3d 906, 910 (7th Cir.
citizens. Education, healthcare, and 2003) (“[T]he statutory reference to
public safety, to name a few, while ‘assistance’ appears to have reference to
typically state concerns, are usually financial assistance rather than to actual
funded in part by federal dollars that medical services, though the distinction
come with strings attached. This case was missed in Bryson v. Shumway, 308
raises the question–not new, but of first F.3d 79, 81, 88-89 (1st Cir. 2002) and
impression in this Court following Doe v. Chiles, 136 F.3d 709, 714, 717
Gonzaga University v. Doe, 536 U.S. 273 (11th Cir. 1998).”). The only issue
(2002)–of what happens when a state before us, however, is whether plaintiffs
allegedly fails to live up to the conditions may sue Pennsylvania under 42 U.S.C. §
1983 to obtain the “assistance” for which

2
 The District Court, relying heavily at 283. The Chief Justice, writing for the
on Gonzaga University, concluded that Court, stated emphatically: “We now
Congress had not unambiguously reject the notion that our cases permit
conferred the rights that plaintiffs sought anything short of an unambiguously
to vindicate under § 1983, and dismissed conferred right to support a cause of
the suit.2 Sabree v. Houston, 245 F. action brought under § 1983.” Id.
Supp. 2d 653, 659 (E.D. Pa. 2003). At (emphasis added).
first blush, language in Gonzaga
University would appear to support that The Court, no doubt, has set a
conclusion. In Gonzaga University, the high bar for plaintiffs. Nonetheless, after
Court foreclosed the ability of a student having considered the relevant provisions
to enforce, by means of § 1983, of the Medicaid Act against the backdrop
provisions of the Family Educational of Gonzaga University, we are convinced
Rights and Privacy Act of 1974 that Congress unambiguously conferred
(“FERPA”).3 Gonzaga Univ., 536 U.S. the rights which plaintiffs here seek to
enforce. Accordingly, we will reverse
the order of the District Court.
they qualify. To resolve this issue we
need not, and do not, address the remedy II. DISCUSSION
that might be available to plaintiffs, but
leave that to the District Court in the first Title XIX of the Social Security
instance. Act, codified at 42 U.S.C. §§ 1396-
1396v and popularly known as the
2
Section 1983 imposes liability on “Medicaid Act,” established a
anyone who, under color of state law, “cooperative federal-state program under
deprives a person “of any rights, which the federal government furnishes
privileges, or immunities secured by the funding to states for the purpose of
Constitution and laws.” 42 U.S.C. § providing medical assistance to eligible
1983. Rights conferred by federal statute low-income persons.” Pa. Pharm. Ass’n
are enforceable under § 1983. Maine v. v. Houstoun, 283 F.3d 531, 533 (3d Cir.
Thiboutot, 448 U.S. 1, 4-8 (1980).
3
The relevant FERPA language education records (or
mandated: personally identifiable
information contained
No funds shall be made therein . . . ) of students
available under any without the written consent
applicable program to any of their parents to any
educational agency or individual, agency, or
institution which has a organization.
policy or practice of
permitting the release of 20 U.S.C. § 1232g(b)(1).

3
2002). States are not required to 1396d(a)(15). 6
participate in the program, but states that
do accept federal funding must comply That plaintiffs merit sympathy
with the Medicaid Act and with does not escape our notice, but neither
regulations promulgated by the Secretary does it govern our reasoning. Rather,
of Health and Human Services (“HHS”). Gonzaga University provides the
Participating states must devise and
implement a state medical assistance plan
that is approved by the Secretary of shall have opportunity to
HHS. 42 U.S.C. § 1396; 42 C.F.R. § do so, and that such
430.10. A state that fails to comply with assistance shall be
its medical assistance plan runs the risk furnished with reasonable
of having its funding revoked by the promptness to all eligible
Secretary. 42 U.S.C. § 1396c. individuals . . . .

There is no dispute that plaintiffs 42 U.S.C. § 1396a(a)(8) (emphasis
qualify for ICF/MR services under added).
Pennsylvania’s medical assistance plan. 5
Nor is it disputed that plaintiffs have Section 1396a(a)(10) provides in
languished on waiting lists for years, relevant part: “A State plan for medical
unable to obtain these services. The only assistance must . . . provide . . .for
dispute, and the one now before us, is making medical assistance available, . . .
whether plaintiffs may sue Pennsylvania to . . . all [eligible] individuals . . . .” 42
under § 1983 to enforce the provisions of U.S.C. § 1396a(a)(10) (emphasis added).
Title XIX that require (1) a state to 6
Section 1396d(a)(15) provides in
provide medical assistance covering
relevant part:
ICF/MR services, and (2) to do so with
“reasonable promptness.” 42 U.S.C. §§
For purposes of this title
1396a(a)(8),4 1396a(a)(10), 5 and
[42 U.S.C. §§ 1396 et seq.]
. . . [t]he term “medical
assistance” means payment
4
Section 1396a(a)(8) provides in of part or all of the cost of
relevant part: the following care and
services . . . for individuals
A State plan for medical . . . who are [eligible:] . . .
assistance must . . . services in an intermediate
provide that all individuals care facility for the
wishing to make mentally retarded . . . .
application for medical
assistance under the plan 42 U.S.C. § 1396d(a)(15).

4
dispassionate lens through which this 1983.7
matter must be viewed. A three-step
analysis is required. First, we must In Gonzaga University, the
examine Gonzaga University to plaintiff sought to enforce conditions
determine the essential characteristics of imposed on the State of Washington by
an “unambiguously conferred right.”
Second, we must assess whether the
statutory language of Title XIX imparts
an “unambiguously conferred right.”
Third, we must determine–if an 7
We take as a given that when seeking
individual right has been unambiguously
redress under § 1983 for violation of a
conferred–whether Congress has
statutory right, a plaintiff need not
precluded individual enforcement of that
establish that Congress intended to
right. This analysis, which, as will
confer a remedy in addition to that right.
become clear, is assuredly not for the
See, e.g., Gonzaga Univ., 536 U.S. at 284
timid, compels the conclusion that the
(“Plaintiffs suing under § 1983 do not
provisions invoked by plaintiffs–42
have the burden of showing an intent to
U.S.C. §§ 1396a(a)(8), 1396a(a)(10),
create a private remedy because § 1983
and 1396d(a)(15)–unambiguously confer
generally supplies a remedy for the
rights vindicable under § 1983.
vindication of rights secured by federal
statutes. Once a plaintiff demonstrates
A. Gonzaga University v. Doe and
that a statute confers an individual right,
Unambiguously Conferred
the right is presumptively enforceable by
Rights – Step One
§ 1983.”).
That § 1983 provides a remedy for
As the Court explained more than
statutorily conferred rights “makes
twenty years ago, “[i]n legislation
obvious sense.” Id. at 285. While the
enacted pursuant to the spending power,
creation of statutorily specific remedies
the typical remedy for state
would make our task easier, Congress
noncompliance with federally imposed
has chosen to provide § 1983 as an all
conditions is not a private cause of action
purpose remedy. Obviously, we cannot
for noncompliance but rather action by
require a clear statement rule mandating
the Federal Government to terminate
the specification of a right to sue within
funds to the State.” Pennhurst State Sch.
the statutory text; to do so would
& Hosp. v. Halderman, 451 U.S. 1, 28
effectively repeal § 1983. Instead, we
(1981). Nonetheless, as the Court
must, as the Court demonstrates in
observed in Gonzaga University, in some
Gonzaga University, examine the
instances Congress has unambiguously
statutory text to determine whether
conferred rights that may be vindicated
Congress has unambiguously conferred
by individual suits brought under §
an individual right.

5
FERPA.8 “Congress enacted FERPA Since Pennhurst, only twice has
under its spending power to condition the the Court recognized a congressional
receipt of federal funds on certain intent to confer statutory rights
requirements relating to the access and vindicable via § 1983: Wright v. Roanoke
disclosure of student educational Redevelopment & Housing Authority,
records.” Gonzaga Univ., 536 U.S. at 479 U.S. 418 (1987), addressing the
278. Ultimately, the Court rejected the Public Housing Act; and Wilder v.
viability of plaintiff’s claim because it Virginia Hospital Ass’n, 496 U.S. 498
concluded that in FERPA Congress had (1990), addressing Title XIX of the
not “intended to create a federal right.” Social Security Act. The Court has
Id. at 283 (emphasis in original); see also foreclosed § 1983 suits in two equally
id. at 291 (Breyer, J., concurring) (“The significant cases (in addition to Gonzaga
ultimate question, in respect to whether University): Suter v. Artist M., 503 U.S.
private individuals may bring a lawsuit to 347 (1992), addressing the Adoption
enforce a federal statute, through 42 Assistance and Child Welfare Act of
U.S.C. § 1983 or otherwise, is a 1980; and Blessing v. Freestone, 520
question of congressional intent.”) U.S. 329 (1997), addressing Title IV-D
(emphasis added). of the Social Security Act.

Accordingly, we must determine While in Gonzaga University the
whether Congress intended to confer the Court “reject[ed] the notion that [its] . . .
rights claimed by plaintiffs. Gonzaga cases permit anything short of an
University instructs that congressional unambiguously conferred right to support
intent is manifest only when statutory a cause of action brought under § 1983,”
language unambiguously confers such it carefully avoided disturbing, much less
rights. Id. at 283. To determine what overruling, Wright and Wilder. Gonzaga
statutory language is necessary to confer Univ., 536 U.S. at 283. Indeed, as the
rights unambiguously, we turn first to the ensuing analysis will demonstrate, the
cases in which the Court addressed Court relied on those cases in crafting
statutory actions brought under § 1983. Gonzaga University. Accordingly, we
We then consider what the Court means will assess the rights claimed by
in Gonzaga University when it requires plaintiffs in light of Wright, Wilder,
“rights-creating language.” Id. at 287. Suter, and Blessing, as construed by
Gonzaga University.
1. Statutory Rights and 42
U.S.C. § 1983 (a) Wright v. Roanoke
Redevelopment & Housing Authority

8
For the relevant FERPA language, see In Wright, the Court permitted a §
note 3, supra. 1983 suit by tenants to recover past

6
overcharges under a rent-ceiling explained in Gonzaga University, three
provision of the Public Housing Act.9 As factors motivated the Wright Court to
conclude “that the provision
unambiguously conferred ‘a mandatory
9
The Public Housing Act provided in [benefit] focusing on the individual
relevant part: family and its income.’” Gonzaga Univ.,
536 U.S. at 280 (quoting Wright, 479
Dwelling units assisted U.S. at 430). First, “[t]he key to [the
under this chapter shall be Court’s] inquiry was that Congress spoke
rented only to families who in terms that ‘could not be clearer.’” Id.
are lower income families Second, Congress “conferred
at the time of their initial entitlements ‘sufficiently specific and
occupancy of such units. definite to qualify as enforceable rights
Reviews of family income under Pennhurst.’” Id. (quoting Wright,
shall be made at least 479 U.S. at 432). Third, “the federal
annually. A family shall agency charged with administering the
pay as rent for a dwelling Public Housing Act ‘had never provided
unit assisted under this a procedure by which tenants could
chapter (other than a family complain to it about the alleged failures
assisted under section [of state welfare agencies] to abide by
1437f(o) of this title) the [the Act’s rent-ceiling provision].’” Id.
highest of the following (quoting Wright, 479 U.S. at 426).
amounts, rounded to the
nearest dollar: (b) Wilder v. Virginia Hospital
Ass’n
(1) 30 per centum of the
family’s monthly adjusted
In Wilder, the Court permitted a §
income;
1983 action brought by health care
(2) 10 per centum of the providers to enforce a reimbursement
family’s monthly income; provision of Title XIX of the Social
or Security Act, the same Title at issue
(3) if the family is
receiving payments for
welfare assistance from a to meet the family's
public agency and a part of housing costs, the portion
such payments, adjusted in of such payments which is
accordance with the so designated.
family’s actual housing
costs, is specifically 42 U. S. C. § 1437a (1982 ed. and Supp.
designated by such agency III) (emphasis added).

7
here.10 According to Gonzaga University, the Wilder Court was
persuaded because the relevant Medicaid
provisions: (1) “explicitly conferred
10 specific monetary entitlements upon the
Title XIX of the Social Security Act
plaintiffs”; (2) “required States to pay an
provided in relevant part:
‘objective’ monetary entitlement to
individual health care providers, with no
A State plan for medical
sufficient administrative means of
assistance must . . . provide
enforcing the requirement against States
. . . for payment . . . of
that failed to comply”; and (3) because
hospital services, nursing
“Congress left no doubt of its intent for
facility services, and
private enforcement.” Gonzaga Univ.,
services in an intermediate
536 U.S. at 280-81 (quoting Wilder, 496
care facility for the
U.S. at 522-23).
mentally retarded provided
under the plan through the
use of rates (determined in (c) Suter v. Artist M.
accordance with methods
and standards developed by In Suter, the Court foreclosed an
the State . . .) which the action under § 1983 brought by a class of
State funds, and makes parents and children who sought to
assurances satisfactory to enforce provisions of the Adoption
the Secretary, are Assistance and Child Welfare Act, which
reasonable and adequate to required that states have a “plan” to
meet the costs which must make “reasonable efforts” to keep
be incurred by efficiently children out of foster homes.11
and economically operated
facilities in order to
provide care and services Supp. V) (emphasis added).
in conformity with
11
applicable State and In Suter, the Court considered
Federal laws, regulations, provisions of the Adoption Assistance
and quality and safety and Child Welfare Act, which provided
standards and to assure that in relevant part:
individuals eligible for
medical assistance have In order for a State to be
reasonable access . . . to eligible for payments under
inpatient hospital services this part, it shall have a
of adequate quality. plan approved by the
Secretary which . . .
42 U.S.C. § 1396a(a)(13)(A) (1982 ed., provides that the plan shall

8
According to Gonzaga University, the duty on the State, to be
Suter Court recognized that because the enforced not by private
Adoption Act “conferred no specific, individuals, but by the
individually enforceable rights, there was Secretary in the manner [of
no basis for private enforcement, even by reducing or eliminating
a class of the statute’s principal payments].
beneficiaries.” Gonzaga Univ., 536 U.S.
at 281 (citing Suter, 503 U.S. at 357). Suter, 503 U.S. 363 (quoted approvingly
Writing for the Court in Suter, the Chief by Gonzaga Univ., 536 U.S. at 281).
Justice explained:
(d) Blessing v. Freestone
Careful examination of the
language . . . does not In Blessing, the Court rejected the
unambiguously confer an claim under § 1983 of five mothers
enforceable right upon the whose children were eligible to receive
Act’s beneficiaries. The child support services from the State of
term “reasonable efforts” Arizona pursuant to Title IV-D of the
in this context is at least as Social Security Act. 12 Title IV-D of the
plausibly read to impose Social Security Act enumerated various
only a rather generalized entitlements.13 Without claiming any

be in effect in all political 12
42 U.S.C. §§ 651-69 (1996) (as
subdivisions of the State, amended by the Personal Responsibility
and, if administered by and Work Opportunity Reconciliation
them, be mandatory upon Act of 1996, Pub. L. 104-193, 110 Stat.
them; . . .[and] provides 2105 (“PRW OR Act”)).
that, in each case,
13
reasonable efforts will be See, for example, the following
made (A) prior to the provision:
placement of a child in
foster care, to prevent or A State plan for child and
eliminate the need for spousal support must . . .
removal of the child from provide that the State will .
his home, and (B) to make . . provide services relating
it possible for the child to to the establishment of
return to his home . . . . paternity . . . with respect
to . . . each child [who is
42 U. S. C. § 671(a)(3), (15) (1988 ed. eligible] . . . and . . .
and Supp. I) (emphasis added). enforce any support

9
specific rights under Title IV-D, the Because the provision
plaintiffs asserted that “they had an focused on “the aggregate
enforceable individual right to have the services provided by the
State’s program achieve ‘substantial State,” rather than “the
compliance’ with the requirements of needs of any particular
Title IV-D,” as required of the State in person,” it conferred no
Title IV-A.14 Blessing, 520 U.S. at 333. individual rights and thus
could not be enforced by §
In Gonzaga University, the Court 1983. We emphasized: “To
explained the logic of the unanimous seek redress through §
Blessing holding: 1983, . . . a plaintiff must
assert the violation of a
federal right, not merely a
violation of federal law.”
obligation established with
respect to [eligible
Gonzaga Univ., 536 U.S. at 281 (quoting
children] . . . .
Blessing, 520 U.S. at 340 (emphasis in
original)). That Blessing garnered
42 U.S.C. § 654(4)(A)-(B) (1996) (as
unanimous support is not surprising: it is
amended by the PRWOR Act) (emphasis
an easy case. The plaintiffs never
added).
asserted any individual rights but,
14
Title IV-A of the Social Security Act instead, attempted to enforce Congress’s
provided in relevant part: right to demand “substantial compliance”
with the terms of a conditional grant of
If a State program . . . is money. To have allowed the action to
found . . . not to have proceed would have transformed § 1983
complied substantially with from a vehicle to vindicate personal
the requirements of [the rights into a qui tam mechanism.
program], and the Secretary
determines that the program To evaluate whether Congress had
is not complying substantially conferred enforceable individual rights in
with such requirements at the a statute, the Blessing Court drew on
time the finding is made, the Wright, Wilder, and Suter, and
Secretary shall reduce the formulated a three-prong test: a statute
grant payable to the State . . . must (1) be intended by Congress to
. benefit the plaintiff, (2) not be “vague
and amorphous,” and (3) impose an
42 U.S.C. § 609(a)(8) (1996) (as unambiguous “binding obligation on the
amended by the PRWOR Act) States.” Blessing, 520 U.S. at 340-41.
(emphasis added). While in Gonzaga University the Court

10
did not abandon this test, it did dispel an injunction forcing Arizona’s child
support agency to ‘substantially comply’
[the] confusion [that] has with all of the provisions of Title IV-
led some courts to interpret D.”). Consequently, the Court remanded
Blessing as allowing the case for a determination of whether
plaintiffs to enforce a specific provisions of Title IV-D gave
statute under § 1983 so rise to individual rights. Id. at 346.
long as the plaintiff falls
within the general zone of 2. Rights-Creating
interest that the statute is Language
intended to protect;
something less than what is To confer rights, Congress must
required for a statute to use “rights-creating language.” Gonzaga
create rights enforceable Univ., 536 U.S. at 287. Such language
directly from the statute must clearly impart an “individual
itself under an implied entitlement,” and have an “unmistakable
private right of action. focus on the benefitted class.” Id.
(quoting Blessing, 520 U.S. at 343, and
Gonzaga Univ., 536 U.S. at 283. The Cannon v. University of Chicago, 441
Court clarified and “emphasize[d] that it U.S. 677, 690-93 (1979)). Cf. Alexander
is only violations of rights, not laws, v. Sandoval, 532 U.S. 275, 289 (2001)
which give rise to § 1983 actions.” Id. at (“Statutes that focus on the person
283 (citing Blessing, 520 U.S. at 340 regulated rather than the individuals
(emphasis in original)). protected create ‘no implication of an
intent to confer rights on a particular
Significantly, in Blessing the class of persons’”) (quoting California v.
Court did not decide that Title IV-D does Sierra Club, 451 U.S. 287, 294 (1981)).
not, in fact, confer individual rights.
Rather, the Court concluded that The Chief Justice invoked the
plaintiffs had failed to assert any specific implied private right of action cases to
rights, instead relying on the general demonstrate the type of “rights-creating
requirement that Arizona “substantially terms” that unambiguously confer rights.
comply” with its Child Welfare Plan.
Blessing, 520 U.S. at 345-46 (“We do not “[T]he question whether
foreclose the possibility that some Congress . . . intended to
provisions of Title IV-D give rise to create a private right of
individual rights. . . . [But,] it is not at all action [is] definitively
apparent that respondents sought any answered in the negative”
relief more specific than a declaration where “a statute by its
that their ‘rights’ were being violated and

11
 terms grants no private Gonzaga Univ., 536 U.S. at 283-84.
rights to any identifiable
class.” Touche Ross & Co. As with implied private rights of
v. Redington, 442 U.S. 560, action, statutory claims under § 1983
576 (1979)). For a statute must be premised on an unambiguous
to create such private articulation and conferral of rights by
rights, its text must be Congress. 17 “[W]here the text and
“phrased in terms of the structure of a statute provide no
persons benefitted.” indication that Congress intends to create
Cannon v. University of new individual rights, there is no basis
Chicago, 441 U.S. 677, for a private suit, whether under § 1983
692, n.13 (1979). We have or under an implied right of action.” Id.
recognized, for example, at 286. With this in mind, the Court
that Title VI of the Civil evaluated FERPA. First, and most
Rights Act of 1964[15] and importantly, the Court contrasted the
Title IX of the Education “individually focused” “rights-creating”
Amendments of 1972 [16] language of Title VI and IX (“no person
create individual rights shall be subjected to discrimination”)18
because those statutes are with FERPA’s general provisions
phrased “with an addressing the Secretary of Education
unmistakable focus on the (“no funds shall be made available” to
benefitted class.” Id., at
691 (emphasis added).
17
The distinction between implied
private rights of action and § 1983
private rights of action rests not in the
15
Title VI provides: “No person in the articulation of rights, but in the
United States shall . . . be subjected to availability of a remedy. Gonzaga Univ.,
discrimination under any program or 536 U.S. at 285 (“[T]he initial inquiry [in
activity receiving Federal financial a private right of action under §
assistance” on the basis of race, color, or 1983]–determining whether a statute
national origin. 42 U.S.C. § 2000d confers any right at all–is no different
(emphasis added). from the initial inquiry in an implied
right of action case, the express purpose
16
Title IX provides: “No person in the of which is to determine whether or not a
United States shall, on the basis of sex . . statute ‘confers rights on a particular
. be subjected to discrimination under class of persons.’”) (quoting California
any education program or activity v. Sierra Club, 451 U.S. at 294).
receiving Federal financial assistance.”
18
20 U.S.C. § 1681(a) (emphasis added). See n.15 & n.16, supra.

12
any “educational agency or institution” FERPA did not confer enforceable
which has a prohibited “policy or rights. Id. at 289 (citing 20 U.S.C. §§
practice.”).19 Gonzaga Univ., 536 U.S. at 1232g(f)-(g)).20 Finally, the Court
287. The Court noted that “FERPA’s highlighted statutory language
nondisclosure provisions . . . speak only reminiscent of that in Blessing that
in terms of institutional policy and counseled against a finding of individual
practice, not individual instances of rights. See id. (“Recipient institutions
disclosure.” Id. at 288. The contrast can further avoid termination of funding
between the language of Titles VI and IX so long as they ‘comply substantially’ . . .
and that of FERPA is stark. The . This, too, is not unlike Blessing, which
specific, mandatory, individually focused found that Title IV-D failed to support a
language of Titles VI and IX confers § 1983 suit in part because it only
individual rights, while the aggregate, required ‘substantial compliance’ with
programmatic focus of FERPA’s federal regulations.”) (citing Blessing,
language merely creates law applicable 520 U.S. 329 at 335, 343).
to the states. The distinction is
dispositive: rights are enforceable under B. Title XIX – Step Two
§ 1983; laws are not. Gonzaga Univ.,
536 U.S. at 283 (citing Blessing, 520 Having traced the Court’s
U.S. at 340). treatment of statutory rights under §
1983, we now turn to the “text and
Despite the clarity of the statutory structure” of Title XIX. Gonzaga Univ.,
language, the Court went on to bolster its 536 U.S. at 286.
analysis by considering the structural
elements of FERPA, which emphasize 1. Statutory Text
the programmatic and aggregate focus of
the statute. Although references to the “We begin with the familiar canon
individual appear throughout the text of
FERPA, “[i]n each provision the
reference . . . is in the context of 20
Understandably, the Court did not
describing the type of ‘policy or practice’ reach the issue of whether the remedial
that triggers a funding prohibition.” Id. scheme in FERPA was sufficient to
Indeed, the fact that Congress “expressly preclude a § 1983 suit. Gonzaga Univ.,
authorized the Secretary of Education to 536 U.S. at 590 n.8 (“We need not
‘deal with violations’ . . . and to determine whether FERPA’s procedures
‘establish or designate [a] review board’” are ‘sufficiently comprehensive’ to offer
buttressed the Court’s assessment that an independent basis for precluding
private enforcement due to our finding
that FERPA creates no private right to
19
20 U.S.C. § 1232g(b)(1). enforce.”) (citation omitted).

13
of statutory construction that the starting do so with “reasonable promptness,” and
point for interpreting a statute is the the government does not do so. Our
language of the statute itself.” Consumer inquiry, however, does not end there.
Product Safety Comm’n v. GTE Sylvania, Indisputably, these provisions create law,
Inc., 447 U.S. 102, 108 (1980). binding on those states choosing to
accept Medicaid funding. Whether the
Plaintiffs seek to enforce the right same provisions confer rights,
to acquire ICF/MR services, by virtue of enforceable by individuals, is another
42 U.S.C. §§ 1396a(a)(10)21 and question, and is the question we are
1396d(a)(15). 22 The language of the called upon to answer.
statute requires that a state “must provide
. . . medical assistance . . . to . . . all To determine whether these
[eligible] individuals,” and includes provisions provide plaintiffs with
intermediate care facilities in the unambiguously conferred rights, we
definition of “medical assistance.” 42 begin with what has come to be called
U.S.C. §§ 1396a(a)(10) & 1396d(a)(15). the “Blessing Test.” Blessing, 520 U.S.
Plaintiffs also seek to enforce the right to at 340-41. As discussed above, the plain
acquire ICF/MR services with language of the statute clearly conveys
“reasonable promptness,” as required by that a state “must provide” plaintiffs with
42 U.S.C. § 1396a(a)(8). 23 The language “medical assistance,” including ICF/MR
of the statute declares that a state “must services, with “reasonable promptness.”
provide . . . assistance . . . with 42 U.S.C. §§ 1396a(a)(10),
reasonable promptness to all eligible 1396d(a)(15), 1396a(a)(8). Without
individuals.” 42 U.S.C. § 1396a(a)(8). difficulty, we conclude that these
provisions satisfy the Blessing Test
In each of these provisions, the because: (1) plaintiffs were the intended
statutory language is clear and beneficiaries of §§ 1396a(a)(10),
unambiguous. Indeed, we can hardly 1396d(a)(15), and 1396a(a)(8); (2) the
imagine anyone disputing that a state rights sought to be enforced by them are
must provide the assistance necessary to specific and enumerated, not “vague and
obtain ICF/MR services, and that it must amorphous”; and (3) the obligation
imposed on the states is unambiguous
21
and binding. Id.
For the relevant text of Section
1396a(a)(10), see note 5, supra.
But, again, our inquiry does not
22
For the relevant text of Section end there because, as is explained in
1396d(a)(15), see note 6, supra. Gonzaga University, the Blessing Test
may only indicate that plaintiffs “fall[]
23
For the relevant text of Section within the general zone of interest that
1396a(a)(8), see note 4, supra. the statute is intended to protect;

14
something less than what is required for the statutory references to the individual
a statute to create rights enforceable appear “in the context of describing the
directly from the statute itself . . . .” type of ‘policy or practice’ that triggers a
Gonzaga Univ., 536 U.S. at 283. To funding prohibition.” Gonzaga Univ.,
ensure that Congress unambiguously 536 U.S. at 288.
conferred the rights asserted, we must
determine whether Congress used In requiring states which accept
“rights-creating terms.” Id. at 284. Medicaid funding to provide ICF/MR
services with reasonable promptness,
The Court identified the text of Congress conferred specific entitlements
Titles VI24 and IX 25 as exemplars of on individuals “in terms that ‘could not
rights-creating language. Gonzaga be clearer.’” Gonzaga Univ., 536 U.S. at
Univ., 536 U.S. at 287. Viewing Titles 280 (quoting Wright, 479 U.S. at 430).
VI and IX, we find it difficult, if not There is no ambiguity. Where, as here,
impossible, as a linguistic matter, to the plain meaning of the text is evident,
distinguish the import of the relevant we need not look further to determine
Title XIX language–“A State plan must congressional intent. See, e.g., Darby v.
provide”–from the “No person shall” Cisneros, 509 U.S. 137, 147 (1993)
language of Titles VI and IX. Just as in (“Recourse to the legislative history . . .
Titles VI and IX, the relevant terms used is unnecessary in light of the plain
in Title XIX are “mandatory rather than meaning of the statutory text.”).26
precatory.” Blessing, 520 U.S. at 341.
Further, the “individual focus” of
Sections 1396a(a)(10), 1396d(a)(15), and
1396a(a)(8) is unmistakable. Gonzaga 26
We note, however, that plaintiffs
Univ., 536 U.S. at 287. The relevant have cited legislative history that may be
Title XIX provisions enumerate the construed to support our reading of the
entitlements available to “all eligible statute. See App. Br. at 20-21 (citing
individuals.” See, e.g., 42 U.S.C. § various congressional legislative
1396a(a)(8). The provisions do not focus materials for the proposition that Title
on “the [entity] . . . regulated rather than XIX authorizes individual suits under §
the individuals protected.” Alexander v. 1983). See, e.g., H.R. Rep. No. 104-651,
Sandoval, 532 U.S. at 289. Neither do at 213-14, 731-32, 2019-20 (1996); H.R.
Rep. No. 104-350, at 211, 270, 288, 1069
(1995); and H.R. Rep. No. 97-158, vol.
24
For the relevant text of Title VI, see II, at 301 (1981). Because we find the
note 15, supra. statute unambiguous, however, we do not
base our decision on legislative
25
For the relevant text of Title IX, see materials, or otherwise pass judgment on
note 16, supra. their relevance to our inquiry.

15
 2. Statutory Structure narrow provisions invoked by plaintiffs
gives us some pause. Indeed, the District
“As a general rule of statutory Court, basing its decision largely on the
construction, where the terms of a statute structural elements of Title XIX, reached
are unambiguous, judicial inquiry is the opposite conclusion from that we
complete.” Adams Fruit Co. v. Barrett, reach. The District Court in large part
494 U.S. 638, 642 (1990). “General” grounded its analysis on 42 U.S.C. §§
rules, however, are susceptible to 1396 and 1396c, and concluded that
exceptions, and we have before us one of those provisions do not contain the
those instances in which our inquiry does rights-creating language required by
not end with the plain language of the Gonzaga University. Sabree, 245 F.
statute. We recognize, of course, that Supp. 2d at 659. Undoubtedly, the Court
“[s]tatutory construction ‘is a holistic was correct in that regard.
endeavor,’ and, at a minimum, must
account for a statute’s full text, language The opening section of Title
as well as punctuation, structure, and XIX–Section 1396–is the appropriations
subject matter.” United States Nat’l and general introductory statement of the
Bank v. Independent Ins. Agents of Am., Medicaid Act.27 As that Section
508 U.S. 439, 455 (1993) (quoting
United Savings Ass’n of Texas v. Timbers
of Inwood Forest Associates, Ltd., 484 27
Section 1396 provides:
U.S. 365, 371 (1988)). In Gonzaga
University, the Court instructs that not For the purpose of enabling
only should the text of the statute be each State, as far as
examined, but also its structure. practicable under the
Gonzaga Univ., 536 U.S. at 286. This conditions in such State, to
instruction makes good sense: we cannot furnish (1) medical
presume to confer individual rights–that assistance on behalf of
is a task for Congress. As the Court families with dependent
aptly put it, we “may play the sorcerer’s children and of aged, blind,
apprentice but not the sorcerer himself.” or disabled individuals,
Alexander v. Sandoval, 532 U.S. at 291. whose income and
Our judicial function is limited to resources are insufficient to
recognizing those rights which Congress meet the costs of necessary
“unambiguously confers,” and in doing medical services, and (2)
so we would be remiss if we did not rehabilitation and other
consider the whole of Congress’s voice services to help such
on the matter–the statute in its entirety. families and individuals
attain or retain capability
Turning our sights beyond the (continued...)

16
explains, Title XIX was enacted “[f]or language. Sabree, 245 F. Supp. 2d at
the purpose of enabling each State . . . to 660. Section 1396c empowers the
furnish . . . medical assistance.” 42 Secretary of HHS to suspend payments to
U.S.C. § 1396. This language says a state if it fails to “comply substantially”
nothing of individual entitlements or with the requirements of Title XIX.28
rights, but reminds us that we are dealing
with an agreement between Congress and
a particular state, and recalls the axiom 28
Section 1396c provides:
of Pennhurst: “In legislation enacted
pursuant to the spending power, the
If the Secretary, after
typical remedy for state noncompliance
reasonable notice and
with federally imposed conditions is not
opportunity for hearing to
a private cause of action for
the State agency
noncompliance but rather action by the
administering or
Federal Government to terminate funds
supervising the
to the State.” Pennhurst State Sch. &
administration of the State
Hosp., 451 U.S. at 28.
plan approved under this
title, finds (1) that the plan
Turning next, as did the District has been so changed that it
Court, to Section 1396(c) does not help no longer complies with
in the search for rights-creating the provisions of section
1902; or (2) that in the
administration of the plan
27
(...continued) there is a failure to comply
for independence or self- substantially with any such
care, there is hereby provision; the Secretary
authorized to be shall notify such State
appropriated for each fiscal agency that further
year a sum sufficient to payments will not be made
carry out the purposes of to the State (or, in his
this title. The sums made discretion, that payments
available under this section will be limited to
shall be used for making categories under or parts of
payments to States which the State plan not affected
have submitted, and had by such failure), until the
approved by the Secretary, Secretary is satisfied that
State plans for medical there will no longer be any
assistance. such failure to comply.
Until he is so satisfied he
42 U.S.C. § 1396. (continued...)

17
This language not only confirms that difficult task. Nonetheless, it is evident,
Title XIX by its terms creates a at least to us, that the statutory language,
relationship between Congress and a despite countervailing structural
particular state, but it recalls, as well, the elements of the statute, unambiguously
“comply substantially” language in confers rights which plaintiffs can
Blessing and Gonzaga University. enforce.
Blessing, 520 U.S. at 343; Gonzaga
Univ., 536 U.S. at 289. Of course, in We conclude that Section 1396,
Blessing and Gonzaga University, such the appropriations and general
language counseled against the introductory statement, cannot neutralize
recognition of an unambiguously the rights-creating language of Sections
conferred right. 1396a(a)(10), 1396d(a)(15), and
1396a(a)(8). Our confidence in this
But while the District Court conclusion rests securely on the fact that
correctly recognized that Sections 1396 the Court has refrained from overruling
and 1396c do not contain the “sort of Wright and Wilder, which upheld the
explicit, rights-creating language found exercise of individual rights under
in Title VI,” it did not consider the statutes that contain similar (or, in the
existence of rights-creating language in case of Wilder, identical) provisions to
other relevant provisions of Title XIX. 42 U.S.C. § 1396.
Sabree, 245 F. Supp. 2d at 659. The
language used by Congress in 42 U.S.C. Section 1396 was in effect at the
§§ 1396a(a)(10), 1396d(a)(15), and time of Wilder, in which the Court
1396a(a)(8), however, explicitly creates allowed claims to proceed under Title
rights. Admittedly, plumbing for XIX, and a similar provision was in
congressional intent by balancing the effect when the Court allowed claims to
specific language of a few discrete proceed in Wright. 42 U.S.C. §§ 1396 &
provisions of Title XIX against the larger 1437. But Gonzaga University did not
structural elements of the statute is a overrule Wilder; rather, it explained that
“Congress left no doubt of its intent for
private enforcement.” Gonzaga Univ.,
28
(...continued) 536 U.S. at 280-81 (quoting Wilder, 496
shall make no further U.S. at 522-23). Neither did the Court
payments to such State (or overrule Wright; rather, it identified it as
shall limit payments to an instance in which Congress
categories under or parts of “unambiguously conferred ‘a mandatory
the State plan not affected [benefit] focusing on the individual
by such failure). family and its income.’” Gonzaga Univ.,
536 U.S. at 280 (quoting Wright, 479
42 U.S.C. § 1396c (emphasis added). U.S. at 430).

18
 We do not diminish the circumstances ‘would be inconsistent
significance of the “comply with Congress’ carefully tailored
substantially” language in Section 1396c. scheme.’”) (quoting Golden State Transit
Rather, we recognize that the plaintiffs in Corp. v. Los Angeles, 493 U.S. 103, 107
Blessing sued under a provision requiring (1989)).
“substantial compliance” by a state. The
Court held that the plaintiffs had no such We note, however, that “[t]he
right in the aggregate, but specifically burden to demonstrate that Congress has
reserved decision on whether they might expressly withdrawn the remedy is on the
have individual rights under other defendant,” and that a court should “not
provisions of the statute, and remanded lightly conclude that Congress intended
for a determination of that issue. to preclude reliance on § 1983 as a
Blessing, 520 U.S. at 345-46. This remedy” for deprivation of an
distinction makes good sense: that unambiguously conferred right. Golden
Congress provides a remedy for itself for State Transit Corp., 493 U.S. at 107
non-compliance does not necessarily (citations omitted). Indeed, only twice
preclude a coherent and coexisting intent has the Court found a remedial scheme
to create an enforceable right in sufficiently comprehensive to supplant §
individual beneficiaries. Significantly, 1983. See Middlesex County Sewerage
and unlike the plaintiffs in Blessing and Auth. v. Nat’l Sea Clammers Ass’n, 453
Gonzaga, plaintiffs here have advanced U.S. 1, 13, 14, 20 (1981) (“Sea
specific claims, rooted in discrete, rights- Clammers”) (acknowledging the
creating provisions of Title XIX. “unusually elaborate enforcement
provisions” empowering the E.P.A.,
C. Congressional Preclusion – Step coupled with several provisions allowing
Three specific instances of private enforcement
of the Federal Water Pollution Control
Even where a right has been Act, and concluding that Congress
unambiguously conferred, a state may intended to preclude individual actions
rebut the presumption of the availability not explicitly allowed); Smith v.
of § 1983 by demonstrating that Robinson, 468 U.S. 992, 1009-11 (1984)
Congress, either expressly or by (concluding that because the Education
providing a comprehensive remedial of the Handicapped Act permitted
scheme, intended to preclude individual aggrieved individuals to invoke carefully
suits. See, e.g., Blessing, 520 U.S. at 346 tailored local administrative procedures
(“Because petitioner does not claim that followed by federal judicial review,
any provision of Title IV-D expressly Congress could not have intended
curtails § 1983 actions, she must make individuals to bypass the enumerated
the difficult showing that allowing § procedure and advance directly to court
1983 actions to go forward in these via § 1983).

19
 Title XIX contains no provision Commonwealth of Pennsylvania. That
explicitly precluding individual actions. Congress may choose to sanction
As a result, there is a substantial burden Pennsylvania for failure to comply with
on a state seeking to establish that its own medical assistance plan does not
Congress has provided a comprehensive necessarily preclude other repercussions,
remedial scheme with which individual such as individual actions against the
actions cannot be reconciled. Title XIX Commonwealth. Congress clearly and
does allow for a state administrative unambiguously conferred the rights of
hearing.29 This is, however, the only which plaintiffs have allegedly been
remedial component of Title XIX, and deprived by Pennsylvania, and has not
clearly falls short of the comprehensive precluded individual enforcement of
enforcement schemes seen in Sea those rights. Accordingly, the order of
Clammers and Smith. “[A] plaintiff’s the District Court will be reversed, and
ability to invoke § 1983 cannot be this case will be remanded for further
defeated simply by ‘the availability of proceedings in accordance with this
administrative mechanisms to protect the Opinion.
plaintiff’s interests.’” Blessing, 520 U.S.
at 347 (quoting Golden State Transit
Corp., 493 U.S. at 106). See also Wilder,
496 U.S. at 523 (“The availability of
state administrative procedures ordinarily
does not foreclose resort to § 1983.”).

III. CONCLUSION

Plaintiffs have advanced specific
claims rooted in statutory text that
identify them as the intended recipients
of medical assistance from the

29
Section 1396a(a)(3) provides in
relevant part: “A State plan for medical
assistance must . . . provide for granting
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).

20
Sabree v. Richman
No. 03-1226

ALITO, Circuit Judge, concurring:

While the analysis and decision of
the District Court may reflect the
direction that future Supreme Court cases
in this area will take, currently binding
precedent supports the decision of the
Court. I therefore concur in the Court’s
decision.

21