United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit November 15, 2004
Charles R. Fulbruge III
No. 03-30007 Clerk
S.D., by and through his next friend, Richard Dickson,
Plaintiff - Appellee,
VERSUS
DAVID HOOD, in his capacity as Secretary of the Louisiana
Department of Health and Hospitals,
Defendant - Appellant.
Appeal from the United States District Court
For the Eastern District of Louisiana
Before KING, Chief Judge, DENNIS, Circuit Judge, and LYNN*,
District Judge.
DENNIS, Circuit Judge:
This appeal challenges the district court’s judgment
enforcing a Medicaid recipient’s right of action under the Civil
Rights Act, 42 U.S.C. § 1983, based on a state Medicaid agency’s
deprivation of his federal statutory right to medical assistance
under the Medicaid Act, 42 U.S.C. § 1396 et seq. The issues are:
*
District Judge for the Northern District of Texas, sitting
by designation.
1
(1) whether the Louisiana Department of Health and Hospitals
(LDHH), the state Medicaid agency, unlawfully denied the
recipient’s claim under the Medicaid Act’s program for “early and
periodic screening, diagnostic, and treatment services” (EPSDT) by
refusing to pay for his medically prescribed disposable
incontinence underwear that is necessary to ameliorate his physical
and mental conditions caused by spina bifida, which results in his
total bowel and bladder incontinence, loss of sensation, and
continual risk of infection; and, if so, (2) whether LDHH’s
violation of the statute deprived the recipient of a right secured
by federal statute for which he may bring an action for redress
under 42 U.S.C. § 1983.
I.
A.
The plaintiff, S.D., a sixteen-year-old Medicaid recipient,
is afflicted with spina bifida, a congenital defect characterized
by imperfect closure of the spinal column. Because of his birth
defect, S.D. has total bowel and bladder incontinence and does not
have sensation below his waist. Thus, he cannot sense potentially
infectious skin irritations resulting from incontinence. S.D. also
has two club feet and has trouble walking. He requires leg braces,
forearm crutches, and a swing gate to move over short distances.
He requires a wheelchair to move over long distances.
As an infant, S.D. was placed in foster care. He was adopted
by his parents, and he receives Medicaid benefits pursuant to a
2
federal policy to encourage the adoption of special needs children.
He is a qualified recipient of Medicaid’s EPSDT program, under
which states provide, in accordance with federal law, screening,
diagnosis and treatment services to individuals under age twenty-
one. Before S.D. moved to Louisiana with his family, he was
provided with disposable incontinence underwear by the Virginia
Medicaid program.
In 2002, S.D.’s Louisiana physician, Dr. Ernest Edward Martin,
Jr., Chairman of the Department of Family Medicine of the Ochsner
Clinic, prescribed disposable incontinence underwear as health care
that is necessary to ameliorate S.D.’s mental and physical
conditions. Specifically, Dr. Martin concluded that the
prescription of such underwear “was physically necessary because it
draws moisture away from the skin which prevents chronic irritation
and infection from urine wetness.” R. 191. According to Dr.
Martin, “[t]his protection is especially important due to S.D.’s
lack of sensation below the waist. Because of this lack of
sensation, S.D. would not be aware if he developed an infection and
an infection could then progress quickly.” Id. Finally, Dr.
Martin determined that without such a prescription, S.D. would be
home bound, isolated, and unable to attend school or engage in
other age-appropriate activities. Thus, the prescription was
necessary from a mental health standpoint as well. S.D. submitted
a claim for medical assistance for the cost of the prescription to
LDHH under the Louisiana State Medicaid Plan.
3
LDHH denied S.D.’s claim stating that “the appliance,
equipment, supplies or service is available through another
agency,”1 “the item is not considered medically necessary” and that
it was a “non-medical supply not covered by Medicaid.” S.D.
appealed administratively. The state administrative law judge ruled
in favor of LDHH without referring to the Medicaid EPSDT
provisions. Rather, the administrative law judge concluded that
LDHH properly denied coverage because “diapers” are “specifically
excluded from coverage” under the Louisiana State Medicaid Plan.
S.D. brought this action in the district court against LDHH
under 42 U.S.C. § 1983 seeking injunctive and declaratory relief.
On cross motions for summary judgment, the district court granted
S.D.’s motion and denied that of LDHH. The district court concluded
that under the Medicaid Act’s EPSDT program a qualified recipient
is entitled to the health care, services, treatment and other
measures described in § 1396d(a) of the Act when such care or
services are necessary for corrective or ameliorative purposes; the
EPSDT provisions of the Medicaid Act create rights enforceable by
§ 1983; and LDHH deprived S.D. of his federal right to EPSDT
benefits in violation of the Medicaid Act. Accordingly, the
district court rendered summary judgment declaring that S.D. is
entitled to medical assistance for the prescribed disposable
incontinence underwear under the EPSDT program and ordering LDHH to
1
On appeal, LDHH concedes that this reason for denial
appears to have been in error. LDHH First Br. p. 2.
4
provide medical assistance to S.D. for that purpose. LDHH appealed.
We review the district court’s decision de novo, both because
it is a summary judgment, and because it requires us to answer
issues of statutory interpretation. See Hodges v. Delta Airlines,
Inc., 44 F.3d 334, 335 (5th Cir. 1995) (en banc); Ott v. Johnson,
192 F.3d 510, 513 (5th Cir. 1999). Summary judgment is appropriate
only when the record indicates “no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56. Because there is no dispute as to any
material issue of fact in this appeal, our review is limited to
whether the plaintiff is entitled to judgment as a matter of law.
B.
Medicaid is a cooperative federal-state program through which
the federal government provides financial aid to states that
furnish medical assistance to eligible low-income individuals. See
42 U.S.C. § 1396 et seq.; see also Atkins v. Rivera 477 U.S. 154,
156 (1986); Louisiana v. United States Dep’t. of Health and Human
Servs., 905 F.2d 877, 878 (5th Cir. 1990). States electing to
participate in the program must comply with certain requirements
imposed by the Act and regulations of the Secretary of Health and
Human Resources. See Evergreen Presbyterian Ministries, Inc. v.
Hood, 235 F.3d 908, 915 (5th Cir. 2000) (“The [Medicaid] program is
voluntary; however, once a state chooses to join, it must follow
the requirements set forth in the Medicaid Act and in its
5
implementing regulations.”) The Secretary has delegated his federal
administrative authority to the Centers for Medicare and Medicaid
Services (“CMS”), an agency within the Department of Health and
Human Services. See Louisiana v. United States Dep’t of Health and
Human Servs., 905 F.2d at 878.2
To qualify for federal assistance, a state must submit to the
Secretary and have approved a “state plan” for “medical
assistance,” 42 U.S.C. § 1396a(a), that contains a comprehensive
statement describing the nature and scope of the state’s Medicaid
program. 42 CFR § 430.10 (1989). “The state plan is required to
establish, among other things, a scheme for reimbursing health care
providers for the medical assistance provided to eligible
individuals.” Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 502
(1990).
The Medicaid Act defines “medical assistance” as “payment of
part or all of the cost of...care and services” included in an
enumerated list of twenty-seven general health care categories
(“medical assistance categories”). 42 U.S.C. § 1396d(a). Some of
the categories must be included within state plans (mandatory
categories) while others may be included at the option of the state
2
Prior to July, 2001, CMS was known as the Health Care and
Financing Administration (“HCFA”). See Department of Health and
Human Services Reorganization Order, 66 Fed. Reg. 35437 (July 5,
2001). For consistency, this opinion will refer to the agency as
CMS, even when referring to the period when it was still
designated as HCFA.
6
(optional categories). 42 U.S.C. § 1396a(a)(10)(A).
The Act requires that each state plan provide EPSDT health
care and services as a mandatory category of medical assistance.
The Act describes EPSDT as “early and periodic screening,
diagnostic, and treatment services (as defined in subsection (r) of
this section) for individuals who are eligible under the plan and
are under the age of twenty-one;”. 42 U.S.C. §§ 1396a(a)10(A),
1396d(4)(B). Subsection (r) further defines EPSDT services as,
inter alia, “[s]uch other necessary health care, diagnostic
services, treatment, and other measures described in [§ 1396d(a)]
to correct or ameliorate defects and physical and mental illnesses
and conditions discovered by the screening services, whether or not
such services are covered under the State plan.” 42 U.S.C. §
1396d(r)(5).
Thus, EPSDT is a comprehensive child health program designed
to assure the availability and accessibility of health care
resources for the treatment, correction and amelioration of the
unhealthful conditions of individual Medicaid recipients under the
age of twenty-one. See CMS State Medicaid Manual § 5010.B
[hereinafter “SMM”]. A principal goal of the program is to
“[a]ssure that health problems found are diagnosed and treated
early, before they become more complex and their treatment more
costly.” Id.
Louisiana’s State Medicaid Plan was approved by CMS. As part
7
of its state plan, Louisiana proposed and CMS approved the
provision of the optional medical assistance category of “home
health care services” to Louisiana’s general adult Medicaid
population. See 42 U.S.C. § 1396d(a)(7). Additionally, Louisiana
proposed and CMS approved a “payment program” which excludes
certain medical supplies from the “home health care services” made
available to the general adult Medicaid population.3 The parties
agree that the “payment program” exclusion implicitly disallows
payment for disposable incontinence underwear for adult recipients
over the age of twenty-one. The Louisiana state plan approved by
CMS does not, however, explicitly or implicitly, exclude the
prescription of incontinence supplies from the EPSDT benefits
which must be provided to EPSDT children, i.e., recipients under
the age of twenty-one qualified for the EPSDT program.4
In its appeal, LDHH does not challenge the district court’s
determinations that (1) S.D. is eligible for coverage by the EPSDT
program, (2) S.D. has physical and mental illnesses and conditions
3
In a section of the state plan describing reimbursement
rates and methods for the home health care services provided
under the plan, the plan states that all covered medical supplies
will be reimbursed through the durable medical equipment program.
The state plan further provides that “[d]iapers and blue pads are
not reimbursable as durable medical equipment items.”
4
The exclusion, described in the preceding footnote, does
not mention the EPSDT program. Payments provided under the EPSDT
program, and the scope of services provided under that program,
are described in other sections of the state Medicaid plan.
Those sections do not contain an exclusion for incontinence
supplies.
8
caused by permanent bowel and bladder incontinence resulting from
an irreparable birth defect of spina bifida, and that, (3) the
medical prescription of disposable incontinence underwear is a
health care, service, treatment, or measure necessary to correct or
ameliorate S.D.’s unhealthful physical and mental conditions
discovered by the screening services. Thus, there is no factual or
legal dispute as to the conclusions that S.D. is eligible to
receive EPSDT services and that the medical assistance for the
prescription of disposable incontinence underwear he seeks is
necessary to ameliorate his unhealthful conditions discovered by
screening within the terms of the EPSDT program.
LDHH contends, however, that, despite the necessity of the
prescription of incontinence underwear to the amelioration of
S.D.’s condition, the denial of S.D.’s claim should be reinstated
because: (1) The district court overstated the scope of the EPSDT
mandate by adopting the “convenient shorthand” or “erroneous
assumption” that a state is required to provide EPSDT children with
any service that could be provided for in a state plan, even if the
service is not one that the state has elected to provide; (2) The
medical prescription of disposable incontinence underwear, although
necessary to ameliorate S.D.’s condition for ESPDT purposes, does
not constitute a health care, service, treatment or measure
“described in Section 1396d(a)” of the Act; (3) Louisiana’s State
Medicaid Plan, as approved by CMS, excludes incontinence supplies
9
from coverage under the EPSDT program; (4) LDHH had the implied
authority or discretion to exclude this type of health care or
service without the approval of CMS; and (5) Section 1983 of Title
42, which affords a cause of action for the “deprivation of any
rights . . . secured by [federal] laws,” does not provide S.D. with
a right of action to sue LDHH because the provisions of the
Medicaid Act upon which S.D. relies does not create an enforceable
“right” within § 1983's meaning.
II.
LDHH sets the stage for all of its arguments by contending
that the district court’s decision was based on the “erroneous
assumption” or “convenient shorthand” that the EPSDT mandate
requires a state to provide eligible children with any health care,
service, treatment or other measure that could be provided for in
its state plan, even if the health care or service is not one that
the state has elected to provide. LDHH conveniently omits a
crucial part of the district court’s holding, however, because that
court said, as does the statute, that states participating in
Medicaid are required to provide medical assistance under the EPSDT
program only for health care, services, treatments and other
measures (1) described in § 1396d(a), that are (2) necessary to
correct or ameliorate defects and physical or mental illnesses and
10
conditions discovered by the screening services.5 Moreover, LDHH
has failed to demonstrate how the statute appropriately may be
construed more narrowly in view of its plain words, legislative
history, authoritative interpretation by CMS, and the consonant
decisions of four other federal Circuits. Nevertheless, in order
to avoid confusion and provide a firm foundation for addressing the
issues, we will set forth our understanding of the nature and scope
of the EPSDT mandate.
In determining the meaning of the Medicaid Act’s EPSDT
provisions, the starting point is the language of the statute
itself. United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241
(1989)( citing Landreth Timber Co. V. Landreth, 471 U.S. 681, 685
(1985)). Section 1396a(a)(10) provides that a state plan for
medical assistance must make available to all qualified individuals
“the care and services listed in” § 1396d(a)(4). Section
1396d(a)(4)(B) provides that “medical assistance” means payment of
5
LDHH’s First Br. P.11-12. LDHH further mischaracterizes
the district court’s decision as holding “that a State must
provide children with any and all services for which it could
receive FFP [, i.e., federal financial participation].” LDHH
First Brief p. 12. LDHH then proceeds to list a variety of
Medicaid services, not described in 42 U.S.C. § 1396d(a), for
which FFP is available. The district court decision does not
address non-§ 1396d(a) FFP, however, but quite correctly decides
the issue raised by this case, viz., whether the prescription of
disposable incontinence underwear necessary for EPSDT corrective
or ameliorative purposes is “described in” 42 U.S.C. § 1396d(a).
See Order and Reasons of district court at 9, 16 (E.D. La #02-
CV-2164) (December 5, 2002). The subject of “FFP” for services
outside the scope of § 1396d(a) is simply irrelevant and LDHH’s
argument regarding it is nothing more than a distraction.
11
part or all of the “cost of the following care and services” for
individuals: “early and periodic screening, diagnostic, and
treatment [EPSDT] services (as defined in subsection (r) of this
section) for individuals who are eligible under the plan and are
under the age of twenty-one[.]” Section 1396d(r), in pertinent
part, provides that “[t]he term ‘early and periodic screening,
diagnostic, and treatment services’ means the following items and
services: ....(5) Such other necessary health care, diagnostic
services, treatment, and other measures described in subsection (a)
of this section to correct or ameliorate defects and physical and
mental illnesses and conditions discovered by the screening
services, whether or not such services are covered under the State
plan.” 42 U.S.C. § 1396d(r)(5).
The crucial phrases of § 1396d(r)(5) provide that EPSDT care
and services include: (1) “health care, diagnostic services,
treatment, and other measures described in [§ 1396d(a)]”
(2)“necessary... to correct or ameliorate...conditions discovered
by the screening services” (3) “whether or not such services are
covered under the State plan.” The natural reading of §
1396d(r)(5)’s phrases is that all of the health care, services,
treatments and other measures described by § 1396d(a) must be
provided by state Medicaid agencies when necessary to correct or
ameliorate unhealthful conditions discovered by screening,
regardless of whether they are covered by the state plan. This
12
reading is also required by the grammatical structure of §
1396d(r)(5). The medical assistance made available to EPSDT
children must be for health care described in the list of twenty-
seven categories set forth in § 1396d(a)-modified by the
requirement that it must be necessary for corrective or
ameliorative EPSDT purposes-further modified by the statutory
mandate that it must be provided whether or not it is covered under
the state plan. The language and structure Congress used cannot be
read in any other way without rendering the crucial phrases
meaningless.
The plain meaning of statutes is conclusive, except in the
“rare cases [in which] the literal application of a statute will
produce a result demonstrably at odds with the intentions of its
drafters.” Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571
(1982). This is not one of those rare cases because the Act, as
literally applied, is fully consistent with the intent of its
drafters.
The EPSDT program was added to the Medicaid Act in 1967. Under
the original EPSDT provision, all Medicaid-eligible individuals
under age twenty-one were entitled to “such early and periodic
screening and diagnosis...to ascertain their physical or mental
defects, and such health care, treatment, and other measures to
correct or ameliorate defects and chronic conditions discovered
thereby, as may be provided in regulations of the Secretary.”
13
(emphasis added) Pub.L.90-248, 81 Stat. 929, codified at §
1396d(a)(4)(U.S. Code 1988 edition). Congress thus initially
authorized the Secretary to make regulations providing for
treatment and health care measures to correct or ameliorate defects
and chronic conditions. The Secretary promulgated regulations
which provided for care and treatment that he designated as
“discretionary services” and provided that a state plan “may
provide for any other medical or remedial care” defined as medical
assistance by the Act. See 42 CFR § 441.57.
By 1989 Congress had become concerned that, because the
original EPSDT health care, services and treatment provision was
optional and not described in detail in the statute, many states
had chosen not to provide EPSDT-eligible children all the care and
services allowable under federal law. See Senate Finance Committee
Report, 135 Cong. Rec. 24444 (Oct. 12, 1989) (“The EPSDT benefit
package has never been described in detail in the statute. . . .
Additionally, while states have always had the option to do so,
many still do not provide to children participating in EPSDT all
care and services allowable under federal law, even if not
otherwise included in the state’s plan.”) Congress therefore
amended the Act in 1989 to mandate that a state agency must provide
EPSDT-eligible children “[s]uch other necessary health
care...described in [the Act’s § 1936d(a) definition of “medical
assistance”] to correct or ameliorate defects . . . illnesses and
14
conditions discovered by the screening services, whether or not
such services are covered under the State plan.” 42 U.S.C. §
1396d(r)(5) (emphasis added). Consequently, Congress in the 1989
amendment imposed a mandatory duty upon participating states to
provide EPSDT-eligible children with all the health care, services,
treatments and other measures described in § 1396d(a) of the Act,
when necessary to correct or ameliorate health problems discovered
by screening, regardless of whether the applicable state plan
covers such services.
Furthermore, the Senate Finance Committee noted that the 1989
amendments “require that states provide to children all treatment
items and services that are allowed under federal law and that are
determined to be necessary . . . even if such services are not
otherwise included in the State's plan.” 135 Cong. Rec. S13234
(Oct. 12, 1989) (emphasis added); See also 135 Cong. Rec. S6900
(June 19, 1989)(statement of Sen. Chafee) (Under amendment
“Medicaid would cover any medically necessary service identified as
necessary through the EPSDT program”); H.R. Conf. Rep. 101-386, at
453 (1989) (amendment would require States “to provide any service
that a State is allowed to cover with Federal matching funds under
Medicaid that is required to treat a condition identified during a
screen, whether or not the service is included in the State's
Medicaid plan.”) Thus, the text of the statute and its legislative
history demonstrate that states participating in the Medicaid
15
program must provide all of the health care and services permitted
under § 1396d(a) when necessary to correct or ameliorate a defect
or condition discovered by screening.
Accordingly, every Circuit which has examined the scope of the
EPSDT program has recognized that states must cover every type of
health care or service necessary for EPSDT corrective or
ameliorative purposes that is allowable under § 1396d(a). See
Collins v. Hamilton, 349 F.3d 371, 376, n.8 (7th Cir. 2003) (“a
state’s discretion to exclude services deemed ‘medically necessary’
. . . has been circumscribed by the express mandate of the
statute”); Pittman by Pope v. Sec’y, Fla. Dep’t of Health & Rehab.,
998 F.2d 887, 892 (11th Cir. 1993)(1989 amendment adding §
1396d(r)(5) took away any discretion state might have had to
exclude organ transplants from the treatment available to
individuals under twenty-one); Pediatric Specialty Care, Inc. v.
Ark. Dep’t of Human Services, 293 F.3d 472, 480-81 (8th Cir. 2002)
(state must provide EPSDT coverage for “early intervention day
treatment” as part of § 1396(a)(13)’s “rehabilitative services”
category because program was structured to ameliorate conditions
and strengthen skills children learn in therapy); Pereira v.
Kozlowski, 996 F.2d 723, 725-26 (4th Cir. 1993) (“[i]n section
1396d(r)(5), the Congress imposed upon the states, as a condition
of their participation in the Medicaid program, the obligation to
provide to children under the age of twenty-one all necessary
16
services, including transplants.”)
CMS, the federal agency charged with the responsibility of
administering the Medicaid Act, also recognizes that under the
EPSDT mandate states are required to provide any service which can
be provided under § 1396d(a) if such service is necessary to
correct or ameliorate a defect, illness or condition identified by
screening. In the State Medicaid Manual, the “official medium by
which [CMS] issues mandatory, advisory, and optional Medicaid
policies and procedures to the Medicaid State agencies,”6 CMS
explains:
OBRA 89 amended §§ 1902(a)(43) and 1905(a)(4)(B) and
created §1905(r) of the Social Security Act (the Act)
which set forth the basic requirements of the program.
Under the EPSDT benefit....the Act requires that any
service which you are permitted to cover under Medicaid
that is necessary to treat or ameliorate a defect,
physical and mental illness, or a condition identified by
6
SMM, Foreword. Although not entitled to Chevron deference,
relatively informal CMS interpretations of the Medicaid Act, such
as the State Medicaid Manual, are entitled to respectful
consideration in light of the agency’s significant expertise, the
technical complexity of the Medicaid program, and the
exceptionally broad authority conferred upon the Secretary under
the Act. Wis. Dep't of Health & Family Servs. v. Blumer, 534
U.S. 473, 497 (2002) (citing United States v. Mead Corp., 533
U.S. 218 (2001); Thomas Jefferson Univ. v. Shalala, 512 U.S. 504,
512 (1994); Schweiker v. Gray Panthers, 453 U.S. 34, 43-44
(1981)).
17
a screen, must be provided to EPSDT participants
regardless of whether the service or item is otherwise
included in your Medicaid plan.
CMS State Medicaid Manual (“SMM”) § 5110 (1990)(emphasis added).
Thus, according to CMS “[t]he law requires the provision of the
services needed by EPSDT clients if the services can be covered
under the Medicaid program.” Id., § 5340 (emphasis added).
Accordingly, CMS interprets the Act to allow a state Medicaid
agency to fix or adjust the amount, duration and scope of services
provided under the EPSDT benefit only if that regulation “comports
with the requirements of the statute that all services included in
[§ 1396d(a)] of the Act that are medically necessary to ameliorate
or correct defects and physical or mental illnesses and conditions
discovered by the screening services are provided.”7 SMM § 5122.
Moreover, the agency construes the statute to require that any
limitation imposed must permit and afford services “sufficient to
achieve their [EPSDT] purpose (within the context of serving the
7
SMM § 5122, in pertinent part, provides: “42 CFR 440.230
allows you to establish the amount, duration and scope of
services provided under the EPSDT benefit. Any limitations
imposed must be reasonable and services must be sufficient to
meet their purpose (within the context of serving the needs of
individuals under twenty-one). You may define the service as
long as the definition comports with the requirements of the
statute in that all services included in [§ 1396d(a)] that are
medically necessary to ameliorate or correct defects and physical
or mental illnesses and conditions discovered by the screening
services are provided.”
18
needs of individuals under the age of twenty-one).” Id.
Consequently, under the CMS interpretation, a state Medicaid agency
may regulate the amount, duration and scope of medical assistance
provided, but its regulation must comply with the statutory
requirement that all health care and services described in §
1396d(a) that are necessary to the corrective and ameliorative
purposes of the EPSDT program must be provided.
On the contrary, appellate counsel for LDHH contend that the
twenty-seven health care and service categories enumerated in §
1396d(a) are only hollow forms that each state may fill with as few
or as many types of health care, treatment, services and measures
as it deems appropriate. Their rationale is that: (1) Section
1396d(a) “is a definitional statute describing the components of
‘medical assistance.’” (2) “By citing to these definitions, the
EPSDT benefit incorporates them as and to the extent they have been
described by Congress in the statute.” (3) “Therefore, EPSDT
entitles Medicaid recipients to what is provided for in section
[1396d(a)], but does not dictate the precise content of
each...category of service.” (4) Thus, “[t]he EPSDT benefit
described in Section [1396d(r)], while broad, does not undermine
the State’s authority and discretion to establish reasonable
standards . . . for determining eligibility for and the extent of
19
medical assistance under the plan.”8
The interpretation proffered by LDHH counsel conflicts
sharply with the Congressional intent of the 1989 EPSDT amendment
as expressed simply and clearly by its plain words, legislative
history, CMS interpretations, and as recognized by the federal
Circuits by which it has been considered. According to its words,
a principal goal of the 1989 amendment is to correct or ameliorate
the defects, illnesses and conditions of EPSDT children discovered
by the screening services. The means to be used for this purpose
are also clear: health care, diagnostic services, treatment, and
other measures described in § 1396d(a). Equally plain is the
criterion for the application of these means: the health care
requested must be necessary to “correct or ameliorate” an eligible
EPSDT child’s defect, illness or condition. 42 U.S.C. §
1396d(r)(5). Furthermore, the legislative history demonstrates
Congress intended the health care and treatment available under
the EPSDT program to be made more accessible and effective by:
removing the Secretary’s express authority to define the means and
the standards for its operation; placing the goal, means and
standards in the statute itself; and by imposing an obligatory,
8
LDHH first brief p.21. Most of LDHH’s brief ostensibly
directed to statutory construction actually presents its
appellate counsel’s post hoc rationalizations of a discretionary
basis for the agency’s action. For the reasons stated in part IV.
of this opinion, we conclude that those reasons cannot provide
justification for LDHH’s denial of S.D.’s statutory right.
20
not discretionary, duty on states to effectuate this aspect of the
EPSDT program “whether or not such services are covered under the
State plan.” 42 U.S.C. § 1396d(r)(5).
Thus the plain words of the statute and the legislative
history make evident that Congress intended that the health care,
services, treatment and other measures that must be provided under
the EPSDT program be determined by reference to federal law, not
state preferences. The 1989 amendment was clearly a response to
the disappointing performance of the EPSDT treatment function as
optional and within each state’s discretion. We reject the notion
of LDHH’s counsel that Congress made the provision of such
treatment mandatory on the states only to cede to the states
complete discretion to decide upon the contents of the twenty-
seven medical assistance categories purportedly made available to
EPSDT eligible children.
All of this is confirmed by the interpretations of CMS. CMS
regulations interpret and implement § 1396d(a) in highly detailed
specific definitions of the supposedly hollow health care
categories. See 42 CFR §§440.1—440.185 (2003). CMS does not
interpret the enumerated health care categories as empty vessels
to be filled according to the states’ discretion. Instead, CMS
construes the twenty-seven categories to have definite substantive
content.
Furthermore, CMS interprets the Act to require that any
21
service a state is permitted to cover under Medicaid that is
necessary to treat or ameliorate a defect, physical and mental
illness, or condition identified by a screen, must be provided to
EPSDT participants regardless of whether the service or item is
otherwise included in the state Medicaid plan. SMM § 5110. Thus,
LDHH counsel’s argument that, for purposes of the EPSDT program,
states are merely required to recognize the twenty-seven medical
assistance categories and fill them with as few or as many types
of health care and services as the states, within their
discretion, see fit is completely inconsistent with CMS’s
interpretation of the EPSDT statutory provisions.
As already related, the federal Circuits that have analyzed
the 1989 ESPDT amendment agree that Congress did not grant or
allow states the discretion to define what types of health care
and services would be provided to ESPDT children, and that
participating states must provide all services within the scope of
§ 1396d(a) which are necessary to correct or ameliorate defects,
illnesses, and conditions in children discovered by the screening
services. Collins v. Hamilton, 349 F.3d 371, 374 (7th Cir. 2003)
(state must provide long term residential treatment to EPSDT
recipients under the “inpatient psychiatric hospital services”
category; state cannot choose to limit category to acute
services); Pittman by Pope v. Sec’y, Fla. Dep’t of Health &
Rehab., 998 F.2d 887, 892 (11th Cir. 1993)(state cannot exclude
22
organ transplants, which are not specifically listed in §
1396d(a), from the health care, services, treatment and other
measures available under the EPSDT program); Pediatric Specialty
Care, Inc. v. Ark. Dep’t of Human Services, 293 F.3d 472, 480-81
(8th Cir. 2002) (state must provide EPSDT medical assistance for
“early intervention day treatment” as part of § 1396(a)(13)’s
“other diagnostic, screening, preventive, and rehabilitative
services” category).
As inspiration for its EPSDT “hollow categories” theory, LDHH
draws only upon the anomalous opinion in Salgado v. Kirschner, 878
P.2d 659, 663 (Ariz. 1994), which devised the theory in dictum in
a non-EPSDT case. Aside from its conflict with all federal
authority, the Salgado court demonstrated a fundamental
misunderstanding of the EPSDT benefit when it stated that “the
special treatment § 1396d(r) accords to persons under twenty-one
are for services directly related to their status as young
persons: basically well-baby and adolescent care.” Id. at 665.
Although the EPSDT program includes youth-related services,
nothing in the statute, its legislative history or CMS
interpretations supports such a restrictive construction of the
EPSDT benefit. In fact, many of the services provided under the
EPSDT program are quite obviously not related to the recipient’s
status as a young person. For example, family planning services,
pre-natal care, and smoking-cessation drug therapy are all
23
provided under the EPSDT program and yet are not applicable only
to youthful recipients. See SMM § 5124(3); CMS Letter to State
Medicaid Directors, Jan. 5, 2001.9 Accordingly, we are not
persuaded by the reasoning of the Salgado Court. See also Leanne
E. Dodds-Eastman, Note, Salgado v. Kirschner: May Arizona Deny
Life-sustaining Organ Transplant Coverage to Adult Medicaid
Recipients under the Federal Medicaid Statute?, 27 Ariz. St. L.J.
251, 263 (1995)(concluding that the Salgado court misinterpreted
the EPSDT statutory mandate.)
For these reasons, we conclude that a state Medicaid agency
must provide, under the EPSDT program, (1) any medical assistance
that a state is permitted to cover under § 1396d(a) of the
Medicaid Act, that is (2) necessary to correct or ameliorate
defects and physical and mental illnesses and conditions
discovered by screening.
III.
Because LDHH does not challenge the district court’s
determination that, for purposes of the EPSDT benefit, the medical
prescription of disposable incontinence underwear is necessary to
ameliorate conditions caused by S.D.’s spina bifida and total
bowel and bladder incontinence, we next address whether this type
9
available at
http://www.cms.hhs.gov/states/letters/smd01051.asp.
24
of medical assistance is “described in” § 1396d(a). As LDHH
acknowledges, this question is “the heart of this case[.]” LDHH
Reply Br., p. 8.
The Medicaid Act does not directly address the question of
whether medically prescribed incontinence supplies are included
within the “home health care services” category of medical
assistance, as argued by the plaintiffs and apparently determined
by the district court. Therefore, we follow the decision of the
Supreme Court in Chevron, U.S.A. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984) by looking first to the
regulations of CMS that interpret the statute. In Chevron, the
Court held that:
“When a court reviews an agency’s construction of the statute
which it administers[, and determines] that Congress has not
directly addressed the precise question at issue, the court does
not simply impose its own construction on the statute, as would be
necessary in the absence of an administrative interpretation.
Rather, if the statute is silent or ambiguous with respect to the
specific issue, the question for the court is whether the agency’s
answer is based on a permissible construction.” Id., 843
(footnotes omitted); See Texas v. United States Dep’t Health &
Human Serv., 61 F.3d 438, 440 (5th Cir. 1995)(following Chevron in
evaluating the agency’s interpretation of the Medicaid statute).
25
“The power of an administrative agency to administer a
congressionally created...program necessarily requires the
formulation of policy and the making of rules to fill any gap
left, implicitly or explicitly, by Congress.” Chevron, supra, 467
U.S. at 843 (quoting from Morton v. Ruiz, 415 U.S. 199, 231
(1974)). The Supreme Court has long recognized that considerable
weight should be accorded to an executive department’s
construction of a statutory scheme it is entrusted to administer.
Id., 844 (citing eleven of its decisions from Edwards’ Lessee v.
Darby, 12 Wheat. 206, 210, 6 L.Ed. 603 (1827) to Blum v. Bacon,
457 U.S. 132, 141 (1982)); accord White v. United States, 143 F.3d
232, 237 (5th Cir. 1998); Sykes v. Columbus & Greenville Railway,
117 F.3d 287, 295 (5th Cir. 1997).
CMS has promulgated a regulation, codified as 42 CFR §
440.70, which provides, in pertinent parts, that “[h]ome health
services include...[m]edical supplies, equipment, and appliances
suitable for use in the home...[when provided to a recipient at]
his place of residence....” Further, 42 CFR § 441.15, in relevant
part, provides: “With respect to the services defined in §
440.70...a State plan must provide that—(a) Home health services
include, as a minimum....(3) Medical supplies, equipment, and
appliances.” In light of the well settled principles reaffirmed by
Chevron, we conclude that the agency’s interpretation of “home
health care services” as including “medical supplies,” when used
26
under the circumstances specified in its regulation, is clearly a
permissible statutory construction.10
We have consistently held that a regulation should be
construed to give effect to the natural and plain meaning of its
words. Lara v. Cinemark USA, Inc., 207 F.3d 783, 787 (5th Cir.
2000); United States v. Raymer, 876 F.2d 383, 389 (5th Cir. 1989);
Alabama Air Pollution Comm’n v. Republic Steel Corp., 646 F.2d
210, 213 (5th Cir. 1981); Diamond Roofing, Inc. v. Occupational
Safety and Health Review Comm’n, 528 F.2d 645, 649 (5th Cir.
1976). Giving effect to the natural and plain meaning of the
term “medical supplies” in the context of this case, we find that
such medical supplies reasonably include the incontinence supplies
medically prescribed for S.D.11
10
LDHH initially argues that “disposable incontinence
supplies” may not be paid for as part of medical assistance
defined by § 1396d(a) because they are not listed verbatim in
that section; and that the only “supplies” listed in the section
are in § 1396d(a)(12): prescribed drugs, dentures, prosthetic
devices, and eye glasses. LDHH First Brief 13. Two pages later,
however, LDHH acknowledges that the CMS regulation implementing
the Act provides that “home health care services” includes
“medical supplies...suitable for use in the home,” although they
are not listed in the statute. Id., 15
11
“Home health care services” is not strictly limited to
items or services that are used exclusively within the interior
of the recipient’s home. The applicable regulation notes only
that home health care services cannot be provided at “a hospital,
nursing facility, or intermediate care facility for the mentally
retarded.” 42 C.F.R. § 440.70(c). No other restrictions are
placed on the location at which they are provided or used. In
addition, at least one other circuit has noted that limiting the
provision of home health services to services provided inside the
27
More importantly, CMS has approved state Medicaid plans that
expressly provide incontinence supplies under the home health care
category of medical assistance.12 This demonstrates that CMS
home “ignores the consensus among health care professionals that
community access is not only possible but desirable for disabled
individuals.” Skubel by Skubel v. Fuoroli, 113 F.3d 330, 336 (2d
Cir. 1997). Thus, in Skubel, the court determined that nursing
services provided under the home health care medical assistance
category cannot be limited to services provided inside the
recipient’s home. Id.
12
Because the term “medical supplies” reasonably includes
medically prescribed incontinence supplies, state plans need not
enumerate such items in order to provide them under the home
health care category of medical assistance. Six states, however,
expressly mention the items in their approved state plans either
to note restrictions placed upon the benefit or as part of an
enumerated list of items available under a specific payment
program. Specifically, Montana’s plan notes that it provides
diapers, limiting recipients to the nearest package size over 180
diapers per month; Idaho provides incontinence supplies, noting
that “[i]ncontinent supplies will only be purchased for persons
over the age of four years of age. Disposable diapers are
restricted in number to 240 per month. Disposable underpads are
restricted to 150 per month[;] any request for incontinent
supplies above these amounts must have prior approval by the
Department.” Michigan provides diapers and selected incontinence
supplies under its home health care services program as long as
the supplies are obtained from the state’s contractor; Virginia
provides incontinence supplies, noting only that
“[p]reauthorization is required for incontinence supplies
provided in quantities greater than two cases per month.”
Arkansas provides a more detailed explanation, noting that
“[d]iapers/underpads are limited to $130.00 per month, per
recipient. The $130.00 benefit limit is a combined benefit limit
for diapers/underpads provided through the Prosthetics Program
and Home Health Program. The benefit limit may be extended with
proper documentation. Only patients with a medical diagnosis
other than infancy which results in incontinence of the bladder
and/or bowel may receive diapers. This coverage does not apply
to infants who would otherwise be in diapers regardless of their
medical condition. Providers cannot bill for underpads/diapers
if a recipient is under the age of three years.” Missouri’s plan
states that EPSDT eligible recipients are eligible for certain
28
interprets the § 1396d(a)(7) “home health care services” category
as appropriately covering incontinence supplies under its
construction of the statute. See 42 CFR § 440.70. As the agency
entrusted with the administration of the Medicaid statute, CMS is
required to determine that each state plan is in conformity with
the specific requirements of the Medicaid act. See §1396a(b); 42
CFR 430.10; 430.15; Cmty. Health Ctr. v. Wilson-Coker, 311 F.3d
132, 134 (2d Cir. 2002)(CMS “reviews each plan to assure that it
complies with a long list of federal statutory and regulatory
requirements”); Rite Aid of Penn. v. Houstoun, 171 F.3d 842, 847
(3d Cir. 1999)(“federal statutes and regulations establish the
criteria for [CMS] to make its decision” to approve or disapprove
a state plan). The agency’s review and determination definitively
indicate whether it interprets a state plan or amendment to be in
conformity with the statute. For example, CMS on many occasions
has disapproved proposed state plans or programs because they were
outside the scope of the Act. Texas v. United States Dep’t of
Health and Human Servs., 61 F.3d 438, 441-42 (5th Cir.
1995)(upholding rejection of Texas state plan amendment because it
provided chemical dependency services outside scope of Medicaid
Act); Okla. v. Shalala, 42 F.3d 595, 598 (10th Cir.
durable medical equipment, including diapers. Maryland includes
“incontinency pants and disposable underpads” as part of its
durable medical equipment program. Wisconsin notes that it
provides “disposable diapers” as a disposable medical supply.
29
1994)(discussing the disapproval of Oklahoma’s plan); New Mexico
Dep't of Human Servs. v. Dep’t of Health & Human Servs., 4 F.3d
882, 884 (10th Cir. 1993) (reviewing disapproval of amendment to
New Mexico State Medicaid Plan); New York v. Sullivan, 894 F.2d
20, 24 (2d Cir. 1990) (discussing the disapproval of New York’s
plan); Ohio Dep’t of Human Servs. v. United States Dep’t of Health
& Human Servs., 862 F.2d 1228, 1229 (6th Cir. 1988)(reviewing the
disapproval of Ohio’s plan).
CMS’s approval of state plans affording coverage for the
provision of incontinence supplies as a proper cost of home health
care services demonstrates that the agency construes § 1396d(a)(7)
as encompassing that type of medical care or service.13 See Pharm.
Research and Mfrs. Am. v. Thompmson, 362 F. 3d 817, 821-22 (D.C.
Cir. 2004) (CMS interpretation of relevant statutory provisions,
as embodied in its approval of state Medicaid plans, is entitled
to Chevron deference); Texas v. United States Dep’t of Health &
13
LDHH contends that determining what is “described in” a
medical assistance category by reviewing the services that CMS
has approved as falling within that category permits other states
to dictate the scope of services that must be provided under
Louisiana’s EPSDT program. LDHH Reply Br. 10. This argument
lacks merit. Each state plan must be approved by CMS and CMS
reviews state plans to ensure conformity with the Medicaid Act.
CMS’s approval of a state plan is therefore an implicit
interpretation of the Act. Thus, the Act itself, as interpreted
by CMS (subject to judicial review), dictates the scope of
services that must be provided under the EPSDT program, not mere
proposals of plans or plan amendments by the states. See Pharm.
Research and Mfrs. America v. Thompmson, 362 F. 3d 817, 821-22
(D.C. Cir. 2004).
30
Human Servs, 61 F.3d at 440 (according Chevron deference to CMS
denial of state plan amendment); Indiana Ass’n Homes for Aging
Inc. v. Ind. Office of Med. Policy & Planning, 60 F.3d 262, 266
(7th Cir. 1995)(reviewing approved state plan amendment with
deference); Pinnacle Nursing Home v. Axelrod, 928 F.2d 1306, 1313
(2d Cir. 1991)(same). Accordingly, we conclude that incontinence
supplies are described in the medical assistance category of “home
health care services” and, therefore, must be provided to EPSDT
eligible children if necessary to correct or ameliorate a
condition discovered by screening.
Contrary to LDHH’s contention CMS approval of Louisiana’s
effective exclusion of incontinence supplies from the home health
care services covered for the general Medicaid population, further
corroborates our conclusion that under CMS’s interpretation of the
Act, the prescription of incontinence supplies is a form of
medical assistance that is “described in” the home health care
services medical assistance category. §1396d(a)(7). The natural
and ordinary meaning of “exclusion” in this context is to expel or
bar from a place or position previously occupied.14 Thus, the
submission and approval of the special provisions that effectuate
that exclusion strongly indicates that both Louisiana and CMS
construed the category of “home health care services” to include
14
See Miriam Webster’s Collegiate Dictionary (10th Ed. 1998)
p. 404.
31
incontinence supplies in the absence of the exclusion. The
provision effectuating the exclusion was necessary to expel or bar
incontinence supplies from the place or position they otherwise
occupy as part of the medical supplies covered under the home
health care services medical assistance category. Otherwise, the
provision would have been unnecessary and illogical.
Further, the § 1396d(a)(7) category of home health care
services is an optional, not a mandatory, category of medical
assistance. §1396a(a)(10)(A). Thus, the state was not required to
provide this category of care and services to individuals over the
age of twenty-one at all. Consequently, the fact that CMS
approved a state plan, adopting the optional category of home
health care services, subject to an effective incontinence
supplies exclusion, does not indicate that the agency construed §
1396d(a)(7) itself to exclude incontinence supplies. Instead, it
suggests that both Louisiana and CMS knew that, if the state
adopted that category and did not adopt a provision effectively
excluding incontinence supplies, it would be forced to afford
incontinence supply service to eligible individuals over twenty-
one years old; that the state wished to avoid the cost of this
service for the older class of recipients; and that the CMS
approved the provision effectively excluding the service because
the state was not obligated by the statute to undertake any aspect
of the optional category of coverage in the first place. At most,
32
CMS’s approval of the effective exclusion indicates only that the
exclusion may be an appropriate limitation on the scope of the
home health care benefit as it applies to recipients over twenty-
one years of age. It does not express or imply that CMS has
approved an exclusion applicable to EPSDT benefits.
In sum, the prescription of disposable incontinence underwear
that is necessary to ameliorate S.D.’s birth defect and condition
of incontinence is a form of medical assistance that is described
in § 1396d(a) under the category of “home health care services.”
§ 1396d(a)(7). For all of the foregoing reasons, we conclude
that LDHH violated the Medicaid Act by denying S.D. a service
described in § 1396d(a) that is necessary for ameliorative
purposes under the EPSDT program. See §1396d(r)(5).
IV.
LDHH’s appellate counsel appear to argue, without complete
clarity or consistency, that the EPSDT mandate does not require
LDHH to pay for the prescription of disposable incontinence
underwear for S.D. in this case because (1) CMS approved an
exclusion of those supplies from EPSDT coverage as part of the
Louisiana state plan, or (2) LDHH has implied authority to
establish exclusions from EPSDT coverage without CMS approval, and
LDHH used that authority to exclude medical assistance for
disposable incontinence underwear in this case. These arguments
are without merit.
33
A.
Before addressing the arguments, in order to avoid confusion,
we need to identify and dispel a number of false issues,
inapposite authorities, and misapplication of statutory elements
that LDHH’s appellate counsel use sophistically in support of
their litigating position: (1) LDHH counsel repeatedly confuse and
blur the important distinction between (a) the Medicaid Act’s
mandatory statutory edict and criterion for the correction or
amelioration of defects, illnesses and conditions of EPSDT
children and (b) the State plans’ bilaterally contracted (state
proposed and CMS approved) definitions and standards for the
medical assistance provided to the general Medicaid population.15
(2) This case does not present an attack upon a state plan’s
federally approved limitation on the basic coverage provided to
15
LDHH First Br. pp. 19, 20 (confusing Medicaid Act’s direct
definition of EPSDT benefit for EPSDT children with Act’s
requirement that participating states propose state plans with
standards for determining the extent of medical assistance under
the plan for the general Medicaid population); 22-24 (confusing
the disputed question of whether states must provide care or
services “medically necessary” for general recipients under its
state plan with the undisputed, more focused EPSTD statutory
requirement that states must provide medical assistance
“necessary...to correct or ameliorate” defects, illnesses and
conditions discovered by screening); 24-25 (misinterpreting CMS’s
approval of Louisiana State plan’s exclusion of incontinence
supplies for general Medicaid population as approving an
exclusion of such medical assistance for EPSDT children); 27
(same as confusion noted on pp. 19, 24-25 of that brief).
34
the general Medicaid population, as in cases relied upon by LDHH.16
(3) The validity of the Louisiana state plan’s exclusion of
incontinence supplies from “home health care services” for the
general Medicaid population is not disputed in this case-it is
LDHH’s attempt to apply that exclusion to coverage under the EPSDT
program that is controversial here.17 (4) Furthermore, because this
case does not call upon us to review CMS’s approval of the
Louisiana state plan, LDHH’s citations and discussion pertaining
to judicial review of such federal agency action are irrelevant
and misleading.18
LDHH’s reliance on other irrelevancies is similarly
misguided. An email from a CMS employee, who did not profess to
speak authoritatively for CMS, does not constitute a thoroughly
16
LDHH First Br. P. 22-24, relying on DeSario v. Thomas, 139
F3d 80, 96 (2d Cir. 1998), vacated by Slekis v. Thomas, 525 U.S.
1098 (1999) (upholding state agency’s decision to deny coverage
of certain medical supplies for the general Medicaid population);
Charleston Mem’l Hosp. v. Conrad, 693 F.2d 324, 329-30 (4th Cir.
1982)(upholding coverage limitations on number of inpatient
hospital days for general Medicaid population); Dougherty v.
Dep’t of Human Services, 449 A.2d 1235, 1238 (N.J. 1982)
(upholding coverage denial for medically necessary environmental
equipment without mentioning EPSDT program.)
17
LDHH First Br. P. 19
18
LDHH First Br. pp. 25-26 (citing cases involving judicial
review of federal agency action: Pinnacle Nursing Home v.
Axelrod, 928 F.2d 1306, 1313 (2d Cir. 1991); Illinois Health Care
Ass’n. v. Bradley, 983 F.2d 1460, 1463 (7th Cir. 1993); Garfield
Medical Ctr. v. Belshe, 80 Cal. Rptr. 2d 527, 532 (Cal.Ct.App.
1998)).
35
considered statutory construction by CMS that is owed any judicial
deference or that is relevant to this case.19 The Medicare manual
relied upon by LDHH is inapposite because the home health benefits
provided under the two programs are not comparable and Medicare,
unlike Medicaid, does not provide for the EPSDT program.20 The
Children’s Choice waiver program that provides, among other
things, diapers to some Medicaid eligible minors does not prove
that incontinence supplies are excluded from coverage under the
EPSDT program.21 CMS approves waiver programs that provide items
and services that are also provided by the EPSDT program if the
nature and amount of services provided under the waiver exceed
19
LDHH First Br. P. 17; Skidmore deference is entirely
inappropriate for the opinion of a single employee who has no
authority to speak on behalf of the agency. See Skidmore v.
Swift, 323 U.S. 134, 139 (1944) (according deference to agency
Administrator’s policies because, inter alia, such ”policies are
made in pursuance of official duty, based upon more specialized
experience and broader investigations and information than is
likely to come to a judge in a particular case.”)
20
LDHH First Br. p. 18. LDHH cites a Home Health Services
Manual issued by CMS and available at
http://cms.hhs.gov/manuals/11_hha/hh205-2.asp#_1_3>. The manual
contains a definition of the medical supplies available under the
Medicare home health benefit that restricts such supplies to
those that are essential to visits by home health aides. In
accordance with that definition, diapers are covered only when
utilized by a home health aide in the normal course of a bathing
visit. There is no similar definition or restriction in the
Medicaid Act. Furthermore, under Medicaid, unlike Medicare,
“home health care services” are not limited to services provided
in the home by a home health aide. See footnote 11. Thus, the
Medicare provision is completely irrelevant to the matter at
hand.
21
LDHH First Br. p. 24.
36
that which is otherwise covered under the state plan. See SMM §
4442.3A.3. LDHH’s arguments based on these immaterial matters
merely obscure and deflect attention from the relevant issues
discussed in previous parts of this opinion.
B.
Contrary to LDHH counsel’s insinuations, the Louisiana state
plan does not contain any provision that expressly or implicitly
excludes the prescription of disposable incontinence underwear
from the coverage provided under the EPSDT program. LDHH’s
creative arguments to that effect are both confusing and
misleading. In short, LDHH contends that, under definitions
contained in its state plan and approved by CMS, incontinence
underwear is not a “medical supply” and, therefore, is not
available under the “home health care services” medical assistance
category.22 Accordingly, although LDHH admits that it is required
to provide “home health care services” including “medical
supplies” to EPSDT recipients, LDHH argues that (1) the Louisiana
state plan defines the “medical supplies” available under the
“home health care services” medical assistance category as
excluding incontinence underwear, (2) CMS has approved Louisiana’s
definition, and (3) because of CMS’s “imprimatur” LDHH’s
definition of “medical supplies” is entitled to deference. This
22
LDHH First Br. 18, 19, 23, 24.
37
argument rests on a fallacy, however, because the state plan does
not contain any definition, applicable to the EPSDT program, that
would exclude incontinence underwear from the medical supplies
available to persons under twenty-one when such supplies are
necessary to correct or ameliorate conditions or defects
discovered by screening.
The incontinence supplies exclusion relied upon by LDHH
appears in Section 4.19-B of the state plan, a section entitled
“Payment for Services.” See LDHH First Br. p. 24-27. (citing
R.135, which refers to Louisiana State Medicaid Plan § 4.19-B,
item 7.) In item 7 of section 4.19-B the plan states that all
medical supplies provided under the optional home health care
services medical assistance category will be reimbursed through
the “durable medical equipment” program. The plan further states
that “diapers and blue pads” are not reimbursable through that
program.23 The section does not purport to define the term
“medical supply” or the medical assistance category of “home
health care services.” Instead, the state plan merely excludes
“diapers and blue pads” from a certain payment program. Although
the parties agree that this section, in effect, excludes
23
The provision counsel relies upon states: “For medically
necessary Medical Supplies, Equipment and Appliances,
reimbursement will be made through the Durable Medical Equipment
Program which requires prior authorization for the item. . . .(a)
Diapers and blue pads are not reimbursable as durable medical
equipment items.” Louisiana State Medicaid Plan § 4.19-B, item 7.
38
incontinence underwear from the medical supplies available to the
general Medicaid population, it is irrelevant to S.D.’s claim
because it does not apply to, refer to, or mention the EPSDT
program. Payments provided under the EPSDT program are described
in an altogether different section of the state plan which does
not contain any exclusion of coverage for incontinence supplies.
Id., item 4.b.
After a careful examination of the Louisiana Medicaid State
Plan,24 including particularly Section 3.1, “Amount, Duration, and
Scope of Services”, and Section 4.19, “Payment for Services”, we
conclude that the plan does not define the term “medical supply”
so as to exclude incontinence underwear nor otherwise implicitly
or explicitly excludes that service from coverage under the EPSDT
program. In addition, we note that LDHH conveniently fails to
cite to the section of the state plan that defines the scope of
services available under Louisiana’s EPSDT program. In that
section, the plan provides that the EPSDT benefit includes “all
other health care described in section [1396d(a)] . . . that is
found to be medically necessary to correct or ameliorate defects
as well as physical and mental illnesses and conditions discovered
by the screening service even when such health care is not
24
See http://www.cms.hhs.gov/medicaid/stateplans/toc.asp?
state=LA; Official plan maintained by the CMS Regional Office;
Copy also maintained by LDHH-BHSF-Policy Section, 1201 Capitol
Access Rd, Fl 6, Baton Rouge, La. 70802.
39
otherwise covered by the State Plan . . . .” Id., § 3.1-A, item
4.b (emphasis added.) Thus, the exclusion of “diapers and blue
pads” that appears in the optional home health care section of the
state plan is specifically not applicable to the EPSDT program.
Therefore, there is no factual or legal basis for LDHH’s argument
that its denial of S.D.’s claim is supported by any definition or
exclusion in the approved state plan.
In this connection, LDHH also argues that, because of CMS’s
“imprimatur” of such a definition or exclusion, its determination
that the state plan bars coverage in this instance should have
been reviewed by the district court under the deferential
standards that courts apply to federal agency actions. The main
flaw in this argument, among others, is, of course, that because
there is no such definition or exclusion in the state plan, CMS
approval of the state plan cannot amount to an imprimatur of such
a provision.
C.
LDHH’s appellate counsel further suggest that LDHH’s denial
of S.D.’s claim should be accorded deference and upheld because
(1) the Medicaid Act grants LDHH the implied authority or
discretion, without CMS review and approval, to make reasonable
exclusions from EPSDT coverage, either by directly excluding
certain types of health care or measures or indirectly by
regulating the amount, duration and scope of the health care
40
provided by the EPSDT program; and that (2) LDHH acted pursuant to
this authority when it denied S.D.’s claim for medical assistance.
Assuming, for the sake or argument only, that the Medicaid Act
delegates such implied authority to LDHH, the short answer to this
attempted justification is that LDHH did not base its action on
such implied authority. Rather, it is clear that LDHH denied
S.D.’s claim on three limited grounds: (1) the disposable
incontinence underwear prescribed by his physician was available
through another agency, (2) was not medically necessary, and (3)
was outside the scope of Medicaid.25 LDHH offered no other reason
for its denial of S.D.’s claim. Specifically, LDHH did not
indicate that S.D.’s claim was within EPSDT coverage but excluded
therefrom by LDHH’s own rule or policy based on its implied
authority or discretion. Nor is there any material in the record
from which we may reasonably discern that this was the basis and
reason for the agency’s decision.
“It is elementary that if an agency’s decision is to be
sustained in the courts on any rationale under which the agency’s
factual or legal determinations are entitled to deference, it must
be upheld on the rationale set forth by the agency itself.” Fort
25
In this appeal, however, LDHH counsel conceded error as to
reason(1). LDHH First Br. 2. Reason (2) is not at issue because
LDHH does not contest the district court’s determination that the
prescription of the incontinence supplies are necessary to the
amelioration of S.D.’s conditions for purposes of the ESPDT
program.
41
Stewart Schools v. FLRA, 495 U.S. 641, 651-652 (1990); SEC v.
Chenery Corp., 318 U.S. 80, 93-95 (1943). “Post-hoc
explanations—especially those offered by appellate counsel—are
simply an inadequate basis for the exercise of substantive review
of an administrative decision.” United States v. Garner, 767 F.2d
104, 117 (5th Cir. 1985)(citing Burlington Truck Lines v. United
States, 371 U.S. 156, 168 (1962)); Baylor Univ. Med. Ctr. v.
Heckler, 758 F.2d 1052, 1060 (5th Cir. 1985); Global Van Lines,
Inc. v. ICC, 714 F.2d 1290, 1299, n.8 (5th Cir. 1983); See also
Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212-213 (1988);
Pension Benefit Guaranty Corp. v. Wilson N. Jones Mem’l Hosp., 374
F.3d 362 (5th Cir. 2004); Ass’n of Civilian Technicians, v. FLRA,
269 F.3d 1112, 1117 (D.C. Cir. 2001). Consequently, we must reject
LDHH appellate counsel’s attempts to support the denial of S.D.’s
claim upon a ground not set forth by LDHH itself.
Therefore, we do not reach the hypothetical question which
LDHH appellate counsel’s post hoc rationalizations seek to raise,
viz., whether LDHH has implied authority or discretion to
establish exclusions from EPSDT coverage without CMS approval.26
26
LDHH counsel continually base arguments on their
assumption and assertion that the Medicaid Act grants states
complete or autonomous discretion to adopt or change their state
plans and the coverage provided thereunder without the need for
CMS approval. LDHH First Br. 4, 20, 21. According to LDHH, the
Medicaid Act confers “broad discretion” upon the states. The
statements by courts to that effect, however, appear to stem from
language in cases such as Beal v. Doe, 432 U.S. 438, 444 (1977).
42
We note, however, that, in any event, the cases cited by LDHH
counsel are inapposite to this question.27
V.
Having concluded that the Medicaid Act’s ESPDT mandate
requires LDHH to provide S.D. with medical assistance for the
prescribed disposable incontinence underwear because it is
necessary to ameliorate S.D.’s conditions caused by his total
bowel and bladder incontinence and spina bifida, we now confront
In that case, the Supreme Court quoted 42 U.S.C. § 1396a(a)(17)
(1970 ed., Supp. V), which provided: "A State plan for medical
assistance must . . . include reasonable standards . . . for
determining eligibility for and the extent of medical assistance
under the plan . . . .” (emphasis added.) The Court determined
that “[t]his language confers broad discretion on the States to
adopt standards for determining the extent of medical assistance,
requiring only that such standards be ‘reasonable’ and
‘consistent with the objectives’ of the Act.” Id.(footnote
omitted). When read in context, however, it is evident that the
Court was referring to the Medicaid Act’s conferral of “broad
discretion” upon the states to submit proposed state plan
provisions for review and approval by the Secretary, not to any
authority of the states to autonomously exclude items or services
from the coverage provided under the state plan.
27
See LDHH First Brief pp. 20, 22-24 (citing Alexander v.
Choate, 469 U.S. 287, 303 (1985); Smith v. Rasmussen, 249 F.3d
755, 759(8th Cir. 2001); DeSario v. Thomas, 139 F.3d 80, 88 (2d
Cir. 1998) vacated by Slekis v. Thomas, 525 U.S. 1098 (1999);
Louisiana v. United States Dep’t of Health and Human Servs/, 905
F.2d 877, 878 (5th Cir. 1990); Charleston Mem’l Hosp. v. Conrad,
693 F.2d 324 (4th Cir. 1982); King v. Sullivan, 776 F. Supp. 645
(D.R.I. 1991); Dougherty v. Dep’t of Human Servs., 449 A.2d 1235,
1238 (N.J. 1982)). Most of these cases deal with the general
Medicaid coverage (including adults) provided for under a state
plan; none deal with a state’s attempt adopt an EPSDT coverage
exclusion without CMS approval. Further, none stand for the
proposition that a state plan may be amended to adopt coverage
exclusions without the approval of CMS.
43
LDHH’s assertion that S.D. cannot enforce that requirement under
42 U.S.C. § 1983.
Section 1983 provides a cause of action against state
officials for “the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws” but does not
provide a mechanism through which citizens can enforce federal law
generally. Instead, it provides redress only for a plaintiff who
asserts a “violation of a federal right, not merely a violation
of federal law.” Blessing v. Freestone, 520 U.S. 329, 340 (1997);
see also Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 508 (1990).
In Blessing v. Freestone, 520 U.S. at 340, the Supreme Court
reiterated the three factors that it has traditionally considered
when determining whether a particular federal statute gives rise
to a right enforceable by § 1983: (1) whether Congress intended
for the provision to benefit the plaintiff; (2) whether the
plaintiff can show that the right in question is not so “vague and
amorphous” that its enforcement would “strain judicial
competence”; and (3) whether the statute unambiguously imposes a
binding obligation on the states. See Evergreen Presbyterian
Ministries, Inc. v. Hood, 235 F.3d 908, 925 (5th Cir. 2000).
In Gonzaga University v. Doe, 536 U.S. 273, 283 (2002), the
Supreme Court noted that some courts had misinterpreted the first
Blessing factor as permitting a § 1983 action whenever the
44
plaintiff fell within the general zone of interests protected by
the statute at issue. The Court clarified that nothing short of
an unambiguously conferred right can support a cause of action
under § 1983. The appropriate inquiry, therefore, is “whether or
not Congress intended to confer individual rights upon a class of
beneficiaries.” Id., 285. Critical to this inquiry is whether the
pertinent statute contains “rights-creating” language such as that
found in Title VI of the Civil Rights Act of 1964 and Title IX of
the Education Amendments of 1972.28 Id., 284, 287. Accordingly,
we begin our analysis by returning to the text of the Medicaid
Act.
The Medicaid Act provides that “[a] State Plan must provide
for making medical assistance available, including at least the
care and services listed in paragraphs (1) through (5), (17) and
(21) of section 1396d(a) of this title, to all individuals" who
meet certain eligibility criteria. 42 U.S.C. § 1396a(a)(10)(A)(i).
EPSDT care and services are listed in paragraph 4 of § 1396d(a)
and, by reference to § 1396d(r), include all the health care,
treatment, services, and other measures described in § 1396d(a)
28
Title VI provides: "No person in the United States shall
... be subjected to discrimination under any program or activity
receiving Federal financial assistance" on the basis of race,
color, or national origin. 42 U.S.C. § 2000d (emphasis added).
Title IX provides: "No person in the United States shall, on the
basis of sex, ... be subjected to discrimination under any
education program or activity receiving Federal financial
assistance." 20 U.S.C. § 1681(a) (emphasis added).
45
when necessary for corrective or ameliorative purposes. This is
precisely the sort of “rights-creating” language identified in
Gonzaga as critical to demonstrating a congressional intent to
establish a new right. Accordingly, as the Third Circuit
concluded, “it [is] difficult, if not impossible, as a linguistic
matter, to distinguish the import of the relevant [Medicaid Act]
language-‘A State Plan must provide’- from the ‘No person shall’
language of Titles VI and IX” which was held up in Gonzaga as the
prototypical rights-creating language. Sabree v. Richman, 367 F.3d
180, 190 (3d Cir. 2004)(concluding that § 1396a(a)(10)(A) creates
a federal right to medical assistance for intermediate care
facility services); accord Rabin v. Wilson-Coker, 362 F.3d 190,
201-2 (2d Cir. 2004); Bryson v. Shumway, 308 F.3d 79, 89 (1st Cir.
2002).
The only potentially material difference between the rights-
creating language contained in § 1396a(a)(10)(A) and that
contained in Titles VI and IX is that the Medicaid Act requires
state action under a medical assistance plan. The requirement of
action under a plan is not, however, dispositive of the question
of whether the statute confers rights enforceable by § 1983. “In
an action brought to enforce a provision of [the Social Security
chapter of the United States Code], such provision is not to be
deemed unenforceable because of its inclusion in a section of this
chapter requiring a State plan or specifying the required contents
46
of a State plan” 42 U.S.C. § 1320a-2; see also Harris v. James,
127 F.3d 993, 1003 (11th Cir. 1997)(“[I]n light of [§ 1320a-2],
it is clear that the mere fact that an obligation is couched in
a requirement that the State file a plan is not itself sufficient
grounds for finding the obligation unenforceable under § 1983.”)
Thus, for all of the forgoing reasons we conclude that the EPSDT
treatment provisions of the Medicaid Act contains the “rights-
creating language critical to showing the requisite congressional
intent to confer a new right.” Gonzaga, supra, 536 U.S. at 274.
Moreover, the Medicaid Act confers the right to the health
care, treatment, services and other measures described in
§1396d(a) when necessary for EPSDT ameliorative purposes upon an
identified class. The statute requires that participating states
provide such care and services "to all individuals" who meet the
plan eligibility requirements and are under the age of twenty-one.
See 42 U.S.C. §§ 1396a(10)(A), 1396d(a)(4)(B). Thus, rather than
having merely an aggregate focus, the EPSDT provisions are
“concerned with whether the needs of [particular individuals] have
been satisfied.” Gonzaga, supra, 536 U.S. at 275. Furthermore,
the statutory provision at issue in the present case is not
directed to the systemwide administration of the EPSDT program
but, rather, requires that health care and services must be
47
provided to all eligible recipients under the age of twenty-one.29
Thus, because it is undisputed that the plaintiff is an eligible
recipient of EPSDT services, we conclude that the relevant
provisions of the Medicaid Act satisfy the first Blessing factor,
as clarified by Gonzaga, in that the Act evidences a congressional
intent to confer a right to the health care, services, treatments
and other measures described in § 1396d(a), when necessary for
EPSDT ameliorative purposes, upon the plaintiff.
Our conclusion is amply supported by the decisions of this
court and other federal Circuits. Before the Supreme Court’s
decision in Gonzaga, numerous courts, including this court, had
concluded that the Medicaid Act confers, upon eligible children,
a federal right to the health care, treatment and measures
mandated by the EPSDT program. See e.g. Mitchell v. Johnston, 701
F.2d 337, 344 (5th Cir. 1983) (holding that EPSDT children had a
right, enforceable by § 1983, to preventive dental care);
Pediatric Specialty Care, Inc. v. Ark. Dep’t. of Human Servs., 293
29
Accordingly, this case is distinguishable from Frazar v.
Gilbert, 300 F.3d 530 (5th Cir. 2002) rev’d by Frew ex rel. Frew
v. Hawkins, 540 U.S. 431 (2004). In Frazar, the plaintiffs
claims did not concern any individual recipient’s access to
services required by federal law. Rather, the claims concerned
the systemwide standards and measures employed by the state
Medicaid agency in its administration of the EPSDT program. This
court concluded that such generalized standards and procedures do
not create individualized rights actionable under § 1983. In
contrast, this case is solely concerned with the right of an
individual to a particular service to which he is entitled under
federal law.
48
F.3d 472, 479 (8th Cir. 2002) (holding “that the plaintiffs have
a federal right to EPSDT services that is enforceable in a § 1983
action”); Miller by Miller v. Whitburn, 10 F.3d 1315, 1319-1320
(7th Cir. 1993) (EPSDT treatment provisions are enforceable by §
1983). Moreover, the district courts that have considered the
enforceability of the EPSDT provisions after Gonzaga have
concluded that the statute creates rights to treatment that are
enforceable under § 1983. See Memisovski ex rel. Memisovski v.
Maram, 2004 WL 1878332 (N.D. Ill.); Kenny A. ex rel. Winn v.
Perdue, 218 F.R.D. 277, 293-94 (N.D.Ga., 2003); Collins v.
Hamilton, 231 F. Supp. 2d 840, 846-47 (S.D.Ind. 2002).30
Finally, several post-Gonzaga circuit court decisions have
held that provisions of the Medicaid Act containing language
similar to § 1396a(a)(10)(A), i.e. “[a] State Plan must provide for
making medical assistance available, including [EPSDT benefits] to
all individuals", are enforceable by § 1983. Specifically, the
Second Circuit in Rabin v. Wilson-Coker, 362 F.3d 190, 201-2 (2d
Cir. 2004) concluded that Congress intended to create an
enforceable right to a temporary grace period by stating that "each
State plan . . . must provide” the specified grace period for
families meeting certain requirements. See 42 U.S.C. § 1396r-6.
30
The Seventh Circuit affirmed the Collins decision at 349
F.3d 371 (7th Cir. 2003) without specifically addressing the §
1983 issue.
49
The Sixth Circuit has held that the fair hearing provision of the
Medicaid Act, 42 U.S.C. 1369a(3), which states that "[a] State plan
for medical assistance must provide for granting an opportunity for
a fair hearing . . . to any individual whose claim . . . is denied
. . ." unambiguously confers an enforceable federal right. Gean v.
Hattaway 330 F.3d 758, 772-73 (6th Cir. 2003). The First and Third
Circuits concluded that 42 U.S.C. 1396a(8) unambiguously confers a
federal right by requiring that medical assistance under a state
plan "shall be furnished with reasonable promptness to all eligible
individuals." Sabree v. Richman, 367 F.3d 180, 190 (3d Cir. 2004);
Bryson v. Shumway, 308 F.3d 79, 89 (1st Cir. 2002).31
Turning to the second Blessing factor, we conclude that the
right asserted by S.D. is not so “vague and amorphous” that its
31
The First and Seventh Circuits have concluded that certain
provisions of the Medicaid Act are not enforceable by § 1983
after Gonzaga. Those cases are readily distinguishable, however,
in that they concern Medicaid provisions that are insufficiently
definite or that only indirectly benefit a particular plaintiff.
See Long Term Care Pharm. Alliance v. Ferguson, 362 F.3d 50, 57-
58 (1st. Cir. 2004)(section 1396a(a)(30)(A) which provides that
state plans must, inter alia, safeguard against unnecessary
utilization and “assure that payments are consistent with
efficiency, economy and quality of care” so as to enlist
sufficient providers confers only an indirect benefit on
providers and is, therefore, not enforceable by providers);
Bruggeman v. Blagojevich, 324 F.3d 906, 911 (7th Cir.
2003)(section 1396a(a)(19), which requires that state Medicaid
plans "provide such safeguards as may be necessary to assure that
eligibility . . . will be determined, and . . . services
provided, in a manner consistent with . . . the best interests of
the recipients” does not create any specific duty on the part of
the states and does not confer an individual right enforceable by
§ 1983.)
50
enforcement would “strain judicial competence." Blessing v.
Freestone, supra, 520 U.S. at 340. S.D. asks the courts to
interpret the EPSDT statutes to ascertain whether they require
Louisiana to provide him with a specific benefit, namely,
incontinence supplies medically necessary for EPSDT ameliorative
purposes. That level of statutory analysis does not “strain
judicial competence;” it is the sort of work in which courts engage
every day. The EPSDT provisions at issue are no more “vague and
amorphous” than other statutory terms that this court, as well as
other courts, have found capable of judicial enforcement. In
Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 519-520 (1990), the
Supreme Court held enforceable under § 1983 the Medicaid Act’s
requirement that states adopt Medicaid reimbursement rates that are
“reasonable and adequate to meet the costs which must be incurred
by efficiently and economically operated facilities.”32 In
Evergreen Presbyterian Ministries, 235 F.3d 908, 925 (5th Cir.
2000), this court followed the lead of “many other courts” and held
that the “equal access” mandate of § 1396(a)(30)(A) is not too
vague to be enforceable. Other Circuits have found that the right
to health care, services, treatment and other measures described in
§ 1396d(a) when necessary for EPSDT ameliorative purposes is not
too vague to be enforceable under § 1983. See Pediatric Speciality
Care, Inc. v. Ark. Dep’t of Human Servs., 293 F.3d 472, 479 (8th
32
42 U.S.C. § 1396a(a)(13)(A)).
51
Cir. 2002); Westside Mothers v. Haveman, 289 F.3d 852, 863 (6th
Cir. 2002); Miller by Miller v. Whitburn, 10 F.3d 1315, 1319-20
(7th Cir. 1993).
Finally, S.D. easily satisfies the third Blessing factor
because the Medicaid statute unambiguously imposes EPSDT
obligations on the participating states. See 42 U.S.C. §
1396a(a)(10)(A) (stating that “[a] State plan for medical
assistance must provide for making medical assistance available,
including [EPSDT benefits]” (emphasis added)); see also Miller by
Miller v. Whitburn, 10 F.3d 1315, 1319 (7th Cir. 1993) (holding
that third Blessing factor is satisfied by EPSDT provisions because
“[s]tates participating in the Medicaid program must provide EPSDT
services to all individuals under age twenty-one") (emphasis
added). Thus the statutory provisions at issue in the present case
satisfy the Blessing test and are enforceable by § 1983.33
LDHH does not dispute that S.D.’s right to receive services
under the EPSDT program is enforceable in an action brought under
§ 1983. Rather, LDHH claims that the right specifically claimed by
S.D., namely, the right to medically necessary incontinence
supplies, is not enforceable because Congress did not specifically
33
Satisfaction of the Blessing factors establishes that a
right is presumptively enforceable by § 1983. See Blessing,
supra, 520 U.S. at 341. Although the State may rebut this
presumption by showing that Congress “specifically foreclosed a
remedy under 1983” it has not done so in this case. Id.
52
list this service in the statute. LDHH claims that even if, as we
have concluded, medically necessary incontinence supplies must be
provided to EPSDT eligible children as a “home health care
service”, this requirement is based upon CMS’s construction of the
statute rather than on the statutory text itself. According to
LDHH, because the specific right at issue is provided by the
agency’s interpretations rather than by Congress, under the Supreme
Court’s decision in Alexander v. Sandoval, 532 U.S. 275, 291
(2001), the right is not enforceable by § 1983. LDHH, however,
misinterprets Sandoval.
In Sandoval, the Supreme Court held that no private right of
action exists to enforce a regulation banning disparate impact
discrimination that was enacted under Title VI of the Civil Rights
Act of 1964 ("Title VI"). Title VI § 601, a rights-creating
provision, states that "No person in the United States shall, on
the ground of race, color, or national origin, be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity" covered. 42 U.S.C. §
2000d. The Supreme Court noted that it was “beyond dispute” that
individuals could sue to enforce § 601's prohibition on
discrimination. Sandoval, supra, 532 U.S. at 280. Furthermore, the
Supreme Court found that it was similarly beyond dispute that § 601
prohibits only intentional discrimination. Id. The plaintiffs in
Sandoval, however, did not allege intentional discrimination but,
53
rather, alleged only disparate impact discrimination.
Section 602 of Title VI states that "each Federal department
and agency which is empowered to extend Federal financial
assistance to any program or activity ... is authorized and
directed to effectuate the provisions of section 2000d of this
title with respect to such program or activity by issuing rules,
regulations, or orders of general applicability...." 42 U.S.C. §
2000d-1. The Department of Justice, pursuant to § 602, had issued
regulations that prohibited disparate impact discrimination.34
The Supreme Court examined the text of § 602, searching for
evidence of congressional intent to create the private right of
action asserted by the plaintiffs. It recognized the absence of any
rights-creating language, such as found in § 601, and concluded
that there was "no evidence anywhere in the text to suggest that
Congress intended to create a private right to enforce regulations
promulgated under § 602." Id., 1522.
Both the government and the plaintiffs argued that the
regulations barring disparate impact discrimination, enacted under
§ 602, were privately enforceable because the regulations
themselves contained rights-creating language. The Supreme Court
rejected this argument stating “[l]anguage in a regulation may
invoke a private right of action that Congress through statutory
34
For the purpose of its decision, the Supreme Court assumed,
without deciding, that the regulation was valid.
54
text has created, but it may not create a right that Congress has
not.” Id., 291. Therefore, “it is most certainly incorrect to say
that language in a regulation can conjure up a private cause of
action that has not been authorized by Congress. Agencies may play
the sorcerer’s apprentice but not the sorcerer himself.” Id.
Important for our purposes, however, the Supreme Court also
stated that it did “not doubt that regulations applying § 601's ban
on intentional discrimination are covered by the cause of action to
enforce that action. Such regulations, if valid and reasonable,
authoritatively construe the statute itself.” Id., 284. Moreover,
“[a] Congress that intends the statute to be enforced through [§
1983] intends the authoritative interpretation of the statute to be
so enforced as well.” Id.
In the present case, the rights-creating language relied upon
by the plaintiff is contained in the statute itself. Furthermore,
the regulations implementing the statute, and defining “home health
care services” to include “medical supplies”, are authoritative
interpretations of the statute and are enforceable by § 1983.
Finally, as discussed in section III, medically necessary
incontinence supplies fall within the natural and plain meaning of
the term “medical supplies” and CMS has interpreted the “home
health care services” category as specifically including such
supplies. Accordingly, the federal statutory right asserted by the
plaintiff is enforceable under § 1983.
55
For these reasons, the judgment of the district court is
AFFIRMED.
56