concurring in part and dissenting in part:
Because the court fails to give appropriate weight to the mandatory statutory requirements imposed on the District of Columbia as a grant recipient under the Child Abuse Prevention and Treatment Act, I respectfully dissent from Part II of the court’s opinion. I concur, however, in Part IV of the court’s opinion certifying the questions under D.C.Code. § 12-309 to the District of Columbia Court of Appeals. Further, because the highest courts of appeals of the several states are divided on the question whether a non-claim statute denies due process and equal protection to persons similarly situated to Doe, I also concur in Part III of the court’s opinion to the extent that it defers decision on the only due process contention that Doe raises, namely a claim of denial of procedural due process, until this court receives the certified opinion of the District of Columbia Court of Appeals.
I.
The Supreme Court has long made clear that “if there is a state deprivation of a ‘right’ secured by a federal statute, § 1983 provides a remedial cause of action unless the state actor demonstrates by express provision or other specific evidence from the statute itself that Congress intended to foreclose such private enforcement.” Wright v. City of Roanoke Redev. & Hous. Auth., 479 U.S. 418, 423, 107 S.Ct. 766, 770, 93 L.Ed.2d 781 (1987). “ “We do not lightly conclude that Congress intended to preclude reliance on § 1983 as a remedy’ for the deprivation of a federally secured right.” Id. at 423-24, 107 S.Ct. at 770 (quoting Smith v. Robinson, 468 U.S. 992, 1012, 104 S.Ct. 3457, 3468-69, 82 L.Ed.2d 746 (1984)). Even in the context of federal grant statutes that provide funds to states that accept the conditions on those funds, a congressional grant condition is a federal “right” enforceable under § 1983 unless the condition is “simply a general statement of ‘findings’ ” that “does no more than express a congressional preference for certain kinds of treatment.” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 19, 101 S.Ct. 1531, 1541, 67 L.Ed.2d 694 (1981). The recent Supreme Court decision in Suter v. Artist M., 503 U.S. 347,112 S.Ct. 1360, 118 L.Ed.2d 1 (1992), does not alter that standard.1 Id. at 358 & n. 8, 112 S.Ct. at 1367 & n. 8.
*877In 1988 Congress amended the Child Abuse Prevention and Treatment Act to establish a grant program to help to fund state child-abuse programs. Child Abuse Prevention, Adoption, and Family Services Act of 1988, Pub.L. No. 100-294, § 101, 102 Stat. 102, 110 (codified as amended at 42 U.S.C. §§ 5106a-5106h (1994)). A state (defined as including the District of Columbia2) that wishes to qualify for the federal funds must meet ten conditions listed in § 5106a(b). First, the state shall
have in effect a State law relating to child abuse and neglect, including—
(A) provisions for the reporting of known and suspected instances of child abuse and neglect; and
(B) provisions for immunity from prosecution under State and local laws for persons who report instances of child abuse or neglect for circumstances arising from such reporting.
Id. § 5106a(b)(l). The state must also “demonstrate that there are in effect throughout the State” such procedures “as may be necessary or appropriate to ensure that the State will deal effectively with child abuse and neglect cases in the State.” Id. § 5106a(b)(3). Most of the other grant conditions require that the “State shall provide” certain child-protective services. Id. § 5106a(b)(2), (4)-(8) (emphasis added). If a state is not in compliance with the grant conditions in subsection (b), the Secretary of Health and Human Services may under certain conditions grant a waiver for a limited period. Id. § 5106a(c) (1988), recodified as § 5106a(d) (1994).3 The specific language on which Doe relies appears in § 5106a(b)(2), which provides that:
In order for a State to qualify for a grant under subsection (a) of this section, such State shall ...
(2) provide that upon receipt of a report of known or suspected instances of child abuse or neglect an investigation shall be initiated promptly to substantiate the accuracy of the report, and, upon a finding of abuse and neglect, immediate steps shall be taken to protect the health and welfare of the abused or neglected child and of any other child under the same care who may be in danger of abuse or neglect. (Emphasis added by Doe.)
A.
The Supreme Court has recognized that § 1983 provides a cause of action for violations of federal statutes. Maine v. Thiboutot, 448 U.S. 1, 4-8, 100 S.Ct. 2502, 2504-06, 65 L.Ed.2d 555 (1980). Such violations are not cognizable under § 1983, however, if the statutory provision is a statement of findings that does not rise to the level of an enforceable right, Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 19, 101 S.Ct. 1531, *8781540-41, 67 L.Ed.2d 694 (1981), or if Congress has foreclosed § 1983 enforcement by providing specific enforcement mechanisms in the statute itself, Middlesex County Sewerage Auth. v. National Sea Clammers Ass’n, 453 U.S. 1, 19-21, 101 S.Ct. 2615, 2625-27, 69 L.Ed.2d 435 (1981). See Suter, 503 U.S. at 355-56, 112 S.Ct. at 1366; Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 508, 110 S.Ct. 2510, 2516-17, 110 L.Ed.2d 455 (1990); Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 106-07, 110 S.Ct. 444, 448-49, 107 L.Ed.2d 420 (1989); Wright v. City of Roanoke Redev. & Hous. Auth., 479 U.S. 418, 423, 107 S.Ct. 766, 770, 93 L.Ed.2d 781 (1987). In Wilder, the Supreme Court developed a three-part test for determining whether a statute creates an “enforceable right”:
Such an inquiry turns on whether the provision in question was intended to benefit the putative plaintiff. If so, the provision creates an enforceable right unless it reflects merely a congressional preference for a certain kind of conduct rather than a binding obligation on the governmental unit, or unless the interest the plaintiff asserts is too vague and amorphous such that it is beyond the competence of the judiciary to enforce.
496 U.S. at 509, 110 S.Ct. at 2517 (quotations, citations and alterations omitted). Because appellees do not contend that Congress has either expressly foreclosed private enforcement in the statute or that Congress has created a remedial scheme sufficiently comprehensive to demonstrate an intent to preclude relief under § 1983, the only question is whether § 5106a(b)(2) creates an enforceable right.
In Wilder itself, the Court considered the private enforceability of the Boren Amendment to the Medicaid Act, which requires each state that wishes to receive federal financial assistance to establish a state plan that reimburses health care providers according to rates that the state “finds, and makes assurances satisfactory to the Secretary [of Health and Human Services], are reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities.” 42 U.S.C. § 1396a(a)(13)(A). Applying the tripartite standard set forth above, the Court concluded that the provision was enforceable by a health care provider in a § 1983 action. 496 U.S. at 509-20, 110 S.Ct. at 2517-23. The Court noted the mandatory, rather than precatory, nature of the rate-findings-and-assurances requirement and that the provision of federal funds is expressly conditioned on state compliance in fact. Id. at 512, 110 S.Ct. at 2518-19. Distinguishing Pennhurst, the Court concluded that the Boren Amendment was “a congressional command,” rather than “a mere suggestion or ‘nudge.’ ” Id. at 512, 110 S.Ct. at 2519 (internal quotation marks omitted). The Court rejected an interpretation of the Boren Amendment that would have limited it to requiring the states to make the rate findings and assurances of reasonable and adequate rates “without requiring those findings to be correct.” Id. at 514, 110 S.Ct. at 2520. The Court concluded that “the only plausible interpretation of the amendment is that by requiring a State to find that its rates are reasonable and adequate, the statute imposes the concomitant obligation to adopt reasonable and adequate rates.”4 Id. at 514-15, 110 S.Ct. at 2520.
The Wilder Court also rejected the notion that in giving flexibility to the states, the obligation of reasonable and adequate rates was too “vague and amorphous” to be judicially enforceable. Id. at 519-20, 110 S.Ct. at 2522-23. Critical to the Court’s conclusion was the fact that the statute and regulations set forth specific factors that states must consider in setting reimbursement rates, as well as the fact that the state’s findings were to be based on the objective benchmark of an “efficiently and economically operated facility],” while ensuring “reasonable access” to eligible participants.5 Id. at 519, 110 S.Ct. at *8792523 (quoting 42 U.S.C. § 1396a(a)(13)(A)). Thus, “[wjhile there may be a range of reasonable rates, there certainly are some rates outside that range that no State could ever find to be reasonable and adequate under the Act.” Id. at 519-20, 110 S.Ct. at 2523.
In Suter v. Artist M., 503 U.S. 347, 112 S.Ct. 1360, 118 L.Ed.2d 1, the Court held that a class of neglected children could not bring suit under § 1983 to enforce a provision of the Adoption Assistance and Child Welfare Act of 1980 that required states, in order to receive federal funds, to submit a plan that “provides that, in each ease, reasonable efforts will be made (A) prior to the placement of a child in foster care, to prevent or eliminate the need for removal of the child from his home, and (B) to make it possible for the child to return to his home.” 42 U.S.C. § 671(a)(15). Unlike the Boren Amendment in Wilder, the Court construed the adoption statute to require only that the state submit such a plan, not that the state actually undertake “reasonable efforts.” 503 U.S. at 358-60, 112 S.Ct. at 1368. A requirement “that the State have a plan approved by the Secretary which contains the 16 listed features,” id. at 358,112 S.Ct. at 1367, is not individually enforceable, when “[n]o further statutory guidance is found as to how ‘reasonable efforts’ are to be measured,” id. at 360, 112 S.Ct. at 1368. Bearing in mind that “‘if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously,’” id. at 356, 112 S.Ct. at 1366 (quoting Pennhurst, 451 U.S. at 17, 101 5.Ct. at 1539-40), the Court concluded that “the ‘reasonable efforts’ language does not unambiguously confer an enforceable right upon the Act’s beneficiaries,” id. at 363, 112 S.Ct. at 1370.
B-
Turning to Wilder* s three-part test,6 it is uncontested that Doe falls within the class of intended beneficiaries of the statute. The Child Abuse Prevention and Treatment Act, by its very name, was intended to benefit possibly neglected children, such as Doe, and the requirement in § 5106a(b)(2) that the state promptly initiate an investigation and take immediate steps to protect the child was presumably intended in part to prevent children from being left with unsuitable caretakers, as Doe alleges occurred here.
The court concludes that § 5106a(b)(2) fails the second prong of the Wilder test. 496 U.S. at 509, 110 S.Ct. at 2517. The court reads the grant condition that the state “provide that ... an investigation shall be initiated promptly ... and ... immediate steps shall be taken,” 42 U.S.C. § 5106a(b)(2), as merely a requirement for inclusion in the state plan, rather than a substantive obligation. Op. at 866-67. Although the court does not reach the third prong of the Wilder test, the requirements for “promptf ]” investigation of reports of child abuse and for “immediate steps” if abuse is found are not so vague and amorphous that they are not judicially enforceable. Respectfully, the court has misapplied Wilder and has failed to follow this court’s precedent in Lampkin v. District of Columbia, 27 F.3d 605 (D.C.Cir.), *880cert. denied, — U.S.-, 115 S.Ct. 578, 130 L.Ed.2d 493 (1994).
The second prong of the Wilder test asks whether the statutory provision merely indicates a “congressional preference” or instead exerts “a binding obligation on the governmental unit.” 496 U.S. at 509, 110 S.Ct. at 2517. Doe maintains that, as with the provision at issue in Wilder, § 5106a(b)(2) is east in mandatory terms. On the other hand, appellees contend that § 5106a should be read as a unitary federal-grant provision and rely on the fact that the District of Columbia has complied with its obligation to submit a plan in conformity with the statutory requirements as a condition of receiving federal funds.
This court has once before applied the analysis of Wilder and Swter to a federal-grant provision, in Lampkin v. District of Columbia, 27 F.3d 605 (D.C.Cir.), cert. denied, — U.S. -, 115 S.Ct. 578, 130 L.Ed.2d 493 (1994). In Lampkin, the court construed provisions of the Stewart B. McKinney Homeless Assistance Act, 42 U.S.C. §§ 11301-11489 (1994), concerning the education of homeless children, id. § 11431-11435 (1988 & Supp. V 1993), repealed by Pub.L. No. 103-382, § 323, 108 Stat. 3518, 3957 (1994). The court particularly noted 42 U.S.C. § 11432(e)(3)-(9), which “provide[d] highly specific instructions for meeting a variety of needs of homeless children and youth.” 27 F.3d at 610. For example, the statute provided that the state “shall” assign a homeless child or youth to a school that “is in the child’s best interest or the youth’s best interest,” and that in making that determination, “consideration shall be given to a request by a parent regarding school selection.”7 42 U.S.C. § 11432(e)(3) (emphasis added). The court therefore concluded that, unlike the adoption statute at issue in Suter, the relevant portions of the McKinney Act “not only inform the State in great detail on how its plan is to be implemented, they impose obligations that are independent of the plan.” 27 F.3d at 611.
Section 5106a(b)(2) of the Child Abuse Prevention and Treatment Act resembles the statutes that in Wilder and Lampkin were found to create enforceable rights. As was true with § 11432(e)(3) of the McKinney Act and with § 1396(a)(13)(A) of the Boren Amendment, the statute provides a directive independent of the requirements for what states must include in their plan. The court misses the significance of this point entirely. Op. at 866. As opposed to paragraphs (1) and (3) of § 5106a(b), for example, which simply require the state to “have in effect” a qualifying state law and to “demonstrate [to the Secretary] that there are in effect” certain state procedures, paragraph (2) states in unequivocal terms that the state “shall provide” that “an investigation shall be initiated promptly to substantiate the accuracy of the report” and “immediate steps shall be taken to protect the health and welfare of the abused or neglected child and of any other child under the same care who may be in danger of abuse or neglect.” 42 U.S.C. § 5106a(b)(2). As in Lampkin, “this language [is] ‘mandatory rather than hortatory.’”8 27 F.3d at 611. In effect, the court reads the “provide that” language to mean “provide in a plan.” Op. at 867-68. The requirement that a state “shall provide that” certain steps be taken does not suggest that drawing up a plan is sufficient, and the court’s reading would give no effect to the difference in wording between paragraph (2) and paragraph (1), which refers to the state plan.9 Unlike the *881adoption statute in Suter, which required only that a state plan be in effect and that the state undertake “reasonable efforts,” 42 U.S.C. § 671(a)(3), (15), section 5106a(b)(2) of the Child Abuse Prevention and Treatment Act imposes binding obligations on states that accept the federal grants. The statutory language at issue “is sufficiently clear to put the States on notice of the obligations they assume when they choose to accept grants made under the Act.”10 Lampkin, 27 F.3d at 611.
In addition to the language of § 5106a(b)(2), the regulations accompanying the statute also clearly notify the states of their obligations if they accept the federal funds. 45 C.F.R. §§ 1340.10-.15 (1995). Implementing regulations alone can suffice to unambiguously put states on notice of the obligations they assume by participating in the federal funding program, thereby creating rights enforceable under § 1983. See, e.g., Buckley v. City of Redding, 66 F.3d 188, 192 (9th Cir.1995); Loschiavo v. City of Dearborn, 33 F.3d 548, 551-53 (6th Cir.1994), cert. denied, — U.S.-, 115 S.Ct. 1099, 130 L.Ed.2d 1067 (1995). At the very least, such regulations can reinforce the notice provided by the statute. See Suter, 503 U.S. at 361, 112 S.Ct. at 1368-69; Lampkin, 27 F.3d at 611. Under the regulations at issue, in order for the Secretary to approve the state’s application, the “State must satisfy each of the requirements in section 107(b) of the Act [42 U.S.C. § 5106a(b) ].” 45 C.F.R. § 1340.14(a). Two regulations in particular elaborate on the conditions in § 5106a(b)(2):
(d) The State must provide for the prompt initiation of an appropriate investigation by a child protective agency or other properly constituted authority to substantiate the accuracy of all reports of known or suspected child abuse or neglect. This investigation may include the use of reporting hotlines, contact with central registers, field investigations and interviews, home visits, consultation with other agencies, medical examinations, psychological and social evaluations, and reviews by multidisciplinary teams.
(f) If an investigation of a report reveals that the reported child or any other child under the same care is in need of immediate protection, the State must provide emergency services to protect the child’s health and welfare. These services may include emergency caretaker or homemaker services; emergency shelter care or medical services; review by a multidisciplinary team; and, if appropriate, criminal or civil court action to protect the child, to help the parents or guardians in their responsibilities and, if necessary, to remove the child from a dangerous situation.
45 C.F.R. § 1340.14(d), (f) (emphasis added). Whereas several of the other regulations adopted to enforce § 5106a(b) are expressly limited to the state’s duty to enact a statute or adopt certain procedures, see 45 C.F.R. § 1340.14(c), (e), (g)-(i), the regulations upon which Doe relies, id. § 1340.14(d), (f), are phrased in mandatory terms that require the state to provide the actual investigations and protective services. Unlike Suter, where “[t]he regulations promulgated by the Secretary to enforce the Adoption Act do not evidence a view that § 671(a) places any requirement for state receipt of federal funds other than the requirement that the State submit a plan to be approved by the Secretary,” 503 U.S. at 361, 112 S.Ct. at 1369, the regulations accompanying the Child Abuse Prevention and Treatment Act further notified the states of their substantive obligations.
Moreover, as is clear upon examining the third prong of the Wilder test, which asks whether the statutory provision is so “vague and amorphous” “that it is beyond the com*882petence of the judiciary to enforce,” 496 U.S. at 509, 110 S.Ct. at 2517, section 5106a(b)(2) mandates (“such State shall”) the manner in which the investigation is to be initiated (“promptly” “upon receipt of a report”), the purpose of the investigation to be conducted (“to substantiate the accuracy of the report”), when steps must be taken upon a finding of abuse or neglect (“immediately”), and the nature of such steps (“to protect the health and welfare of the abused or neglected child and of any other child under the same care who may be in danger of abuse or neglect”). The federal regulations, 45 C.F.R. § 1340.14(d), (f), provide examples of investigative measures and appropriate emergency responses. With these detailed substantive standards in statute and regulation, § 5106a(b)(2) resembles the Boren Amendment at issue in Wilder in that “the statute and regulation set out factors which a State must consider in adopting its rates.” 496 U.S. at 519, 110 S.Ct. at 2522. By contrast, in Suter the “reasonable efforts” provision of the Adoption Act was too vague, when “[n]o further statutory guidance is found as to how ‘reasonable efforts’ are to be measured.” 503 U.S. at 360, 112 S.Ct. at 1368.
As the Supreme Court remarked in Wilder, the fact that the statute “gives the States substantial discretion ... may affect the standard under which a court reviews [the state’s compliance], but it does not render the amendment unenforceable by a court” under § 1983. 496 U.S. at 519, 110 S.Ct. at 2522-23. In reaching a contrary conclusion in Tony L. v. Childers, 71 F.3d 1182, 1189-90 (6th Cir.1995), cert. denied, — U.S.-, 116 S.Ct. 1834, 134 L.Ed.2d 938 (1996), the Sixth Circuit acknowledged that it saw itself in a “quandary” because the regulations accompanying § 5106a “appear to place this case in between the Supreme Court’s teachings in Wilder and Suter.” Id. at 1189. Ultimately, the Sixth Circuit relied on the fact that the regulations, 45 C.F.R. § 1340.14(d), (f), use the word “may,” rather than “shall,” such that the states “retain discretion under CAPTA to disregard the examples provided” therein. 71 F.3d at 1189. In fact, however, the mandates for state compliance are to be found in the statute itself, which requires “prompt[ ]” investigations and “immediate” responsive steps, cf. Lampkin, 27 F.3d at 610-11; the regulatory examples illustrate what action is contemplated for state compliance.
Without attempting to define a single set of specific program requirements, Congress gave the states leeway, within the statutory mandates, to devise various means by which to comply. In finding that deaths from child abuse and neglect were staggeringly high, Congress found also that “child abuse fatalities are not inherently predictable but many are preventable.” Child Abuse Prevention, Adoption and Family Services Act of 1988, § 106(a), 102 Stat. 102, 119. Even though the precise choice of means of compliance in regard to how investigations will be conducted and what emergencies services will be made available is left to the states, 45 C.F.R. § 1340.14(d), (f), the federal statute sets certain limits on the scope of that discretion and mandates some standards that the states that accept the federal grant cannot avoid.11 Cf. Wilder, 496 U.S. at 515, 110 S.Ct. at 2520 (“[Wjhile Congress gave States leeway in adopting a method of computing rates ... [,] Congress retained the underlying requirement of ‘reasonable and adequate’ rates.”). For example, a state surely could not qualify for federal funds if it took, say, twelve months to investigate reports of child abuse or if the state took no action whatsoever to substantiate the accuracy of the report; in such instances, a § 1983 action would he. In Lampkin, this circuit held that the provision in the McKinney Act requiring states to place homeless children in a school that “is in the child’s best interest,” 42 U.S.C. § 11432(e)(3) (1988), was not overly vague or amorphous. 27 F.3d at 612. Just as the statute in Lampkin focuses on protection for an individual homeless child, § 5106a(b)(2) focuses on protection for an individual child *883about whom the state has received a report of suspected abuse.
Although the statutory terms “promptly” and “immediate” can have various specific programmatic meanings, as they well might given the different circumstances faced by the several states, they alert the states to the type of action that is required, and the regulations provide further guidance to the states about the type of action that must be taken to comply with the statutory mandate. Doe seeks to enforce her federal right to have the District undertake a prompt investigation of her grandmother’s reports to the Department of Human Services and the Metropolitan Police Department about abuse and neglect and, upon determining that she was abused or neglected, to have the District take immediate steps to protect her health and safety. The context in which Congress acted, given its specific findings, lends further definition to the nature of “promptly” and “immediate.” Because it contains mandatory standards, accompanied by regulatory guidance, § 5106a(b)(2) is as definite than the federal-grant conditions in Wilder and Lampkin, and I conclude that § 5106a(b)(2) likewise creates judicially enforceable rights.
Accordingly, I would reverse the district court’s dismissal of Doe’s § 1983 action for violation of the federal Child Abuse Prevention and Treatment Act.
II.
Contrary to the court’s discussion in Part III of its opinion, Op. at 867-69, Doe does not advance a substantive due process claim such as that rejected by the Supreme Court in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S.Ct. 998,103 L.Ed.2d 249 (1989). See Appellant’s Main Brief at 29-30; Reply Brief at 2. Hence, the court s discussion of a substantive due process claim is dictum. Rather, Doe contends that, as applied to her, D.C.Code § 12-309 violates due process of law. Her argument is that as a neglected child, she was entitled to services under the District of Columbia Prevention of Child Abuse and Neglect Act that the District government cannot deprive her of without due process of law. Cf. Logan v. Zimmerman Brush Co., 455 U.S. 422, 428-33, 102 S.Ct. 1148, 1153-56, 71 L.Ed.2d 265 (1982) (holding that a cause of action is a property interest protected by the Due Process Clause). Doe does not suggest, as indeed she could not, that the availability of a tort remedy under District of Columbia law is insufficient to satisfy procedural due process. See Parrott v. Taylor, 451 U.S. 527, 538-41, 101 S.Ct. 1908, 1914-16, 68 L.Ed.2d 420 (1981). Instead, she maintains that she has been deprived of procedural due process if, as the district court ruled, §. 12-309 is interpreted to bar the availability of a post-deprivation tort remedy. Cf. Zinermon v. Burch, 494 U.S. 113, 125-26, 110 S.Ct. 975, 983, 108 L.Ed.2d 100 (1990) (stating that the “guarantee of fair procedure” is violated if the “process the State provided” was not “constitutionally adequate”). The court, curiously, assumes the existence of the very remedy that Doe contends is barred for her through no fault of her own. Op. at 868-69. Doe maintains that her incapacity — given her infancy and hospitalization in the custody of the District government — would make application of § 12-309, which has no provision for infancy or notice on behalf of an infant, to her a violation of due process, for she would thereby be deprived the benefit of rights under the Child Abuse Protection and Treatment Act.12 *884The court acknowledges that in view of the decision to certify the § 12-309 issues to the District of Columbia Court of Appeals, consideration of Doe’s procedural due process claim should be deferred. Op. at 870. Hence, the court’s discussion of its construction of Doe’s procedural due process claim is dictum. I agree, however, that because of the possibility that the District of Columbia court of Appeals may read § 12-309 to allow Doe’s claim under District of Columbia law to go forward, our decision on Doe’s procedural due process claim is properly deferred.
III.
I concur in the reference of the issues under D.C.Code § 12-309 to the District of Columbia Court of Appeals. As the court notes, Op. at 873-74, there is a split among the highest courts of the States on the applicability of non-claim statutes to persons in Doe’s position as a minor or otherwise in a state of incapacity, and the fundamental concern arises where a state’s statute permits of no exception for minority or incapacity. The nature of that split bears noting in light of Doe’s due process claim.
For example, in Maier v. City of Ketchikan, 403 P.2d 34 (Alaska 1965),13 the Supreme Court of Alaska construed a provision of a municipal charter providing that “[t]he city shall not be liable in damages for injury to person or property by reason of negligence of the city unless, within four months after such injury occurs, the person damaged or his representative causes a written notice to be served upon an officer of the city upon whom process may be served.” Id. at 35. Maier was severely injured while holding a metal survey rod that came into contact with an electrical power line owned by the city. His notice of claim was more than a month late, and on appeal he maintained that his incapacity, which arose out of the injury on which his claim was based, excused his delay in filing a claim. Id. at 36. The Alaska Supreme Court noted the disagreement among the states on this point, with some states prohibiting exceptions where the notice law itself does not excuse the disabled and other states treating such disability as an excuse. Id. at 37. The Alaska Supreme Court resolved the issue as follows:
We adopt the view that failure to file a notice of claim within the time prescribed by the city charter may be excused because of the disability from which the claim arose and until a reasonable time after the disability ceases. The essential justice of such a view persuades us to adopt it for this jurisdiction. If, as appellant contends, he was injured by the negligence of the city, it would be basically unfair to deprive him of recourse to the courts if the injuries suffered prevented him from complying with the notice requirements of the charter. To permit such a situation to occur would make it possible for the city to take advantage of and benefit from its own wrong. This would not be consistent with our traditional conception of fair play and substantial justice.
Id.
The highest courts in a number of states had taken a similar view. Years before Mai-er, in City of Colorado Springs v. Colburn, 102 Colo. 483, 486, 81 P.2d 397, 398 (1938), the Supreme Court of Colorado adopted what it “conceive[d] to be the more reasonable and humane rule ... to the effect that under proper circumstances of mental and physical incapacity, giving of notice is excused.” See also Fritz v. Regents of Univ. of Colorado, 196 Colo. 335, 338-39, 586 P.2d 23, 25-26 (1978) (en banc). The Supreme Court of Missouri has long held “that physical or mental incapacity excuses a failure to give the notice” under a statute like § 12-309. Kunkel v. City of St. Louis, 349 Mo. 1121, 1128, 163 S.W.2d 1014, 1015 (1942); see also Randolph v. City of Springfield, 302 Mo. 33, 257 S.W. 449 (1923). Similarly, the Supreme Court of Wisconsin has held that application of a notice-of-claim statute would violate due process if “compliance ... is almost impossible and in essence the individual is given no *885right of recovery.” Ocampo v. City of Racine, 28 Wis.2d 506, 513, 137 N.W.2d 477, 481 (1965); see also Mannino v. Davenport, 99 Wis.2d 602, 614-15, 299 N.W.2d 823, 828-29 (1981). More recently, the Supreme Judicial Court of Maine held in Langevin v. City of Biddeford, 481 A.2d 495, 498 (Me.1984), that it would violate due process to apply a notice-of-claim statute to a 1'4-year-old minor who was “incapable of complying.” Because the plaintiff’s mother refused to bring suit on her son’s behalf, the court remanded for a determination of “whether the plaintiff had access to an attorney, agent or other relative to serve notice for him.” Id.
Of course, this court cannot presume to predict whether the District of Columbia Court of Appeals would take a similar position in Doe’s case. The highest courts in some states have declined to read an exception for inability to comply into their states’ notiee-of-claim statutes. See, e.g., Workman v. City of Emporia, 200 Kan. 112, 114-17, 434 P.2d 846, 848-49 (1967); Waite v. Orgill, 203 Tenn. 146, 148-50, 310 S.W.2d 179, 180 (1958). On the other hand, the highest courts in six states have struck down notice-of-claim statutes that contain no exceptions as facially unconstitutional,14 and most states’ statutes contain some sort of means to obtain an exception for inability to comply.15 Moreover, the District of Columbia Court of Appeals has acknowledged that minors are entitled to special consideration in protecting their legal rights as litigants notwithstanding defaults of their next-of-friend or attorney. Godfrey v. Washington, 653 A.2d 371, 373 (D.C.1995) (reversing dismissal with prejudice of lead-paint negligence complaint when minor plaintiffs mother failed to cooperate with discovery). Analogously, the Supreme Court of Wyoming has held that, because a minor has no capacity to sue and cannot lose his claim because of his parent’s failure to act, the notice-of-elaims period does not begin to run until the appointment of a guardian ad litem. Dye v. Fremont County Sch. Dist No. 24, 820 P.2d 982, 985-86 (Wyo.1991).
With some highest state courts adopting an approach that is favorable to Doe’s contentions, and others not, with some courts able to rely instead on statutory provisions of exclusion or exception, given that Congress intended for the District’s non-claim statute to serve the same purpose as those of the several States, Brown v. United States, 742 F.2d 1498, 1502 (D.C.Cir.1984) (in banc), cert. denied, 471 U.S. 1073, 105 S.Ct. 2153, 85 L.Ed.2d 509 (1985) (citing H.R.Rep. No.2010, 72d Cong., 2d Sess. 2 (1933)), this court is in no position to determine how the District of Columbia Court of Appeals might decide Doe’s § 12-309 claims. Hence, certification pursuant to D.C.Code § 11-723 is appropriate.
. Indeed, Congress has reinforced its intention that federal grant conditions may create enforce*877able rights, according to the law in pre-Suter Supreme Court decisions:
In an action brought to enforce a provision of this chapter [42 U.S.C. §§ 301-1397f|, 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 of a State plan. This section is not intended to limit or expand the grounds for determining the availability of private actions to enforce State plan requirements other than by overturning any such grounds applied in Suter v. Artist M., 503 U.S. 347, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992), but not applied in prior Supreme Court decisions respecting such enforceability; provided, however, that this section is not intended to alter the holding in Suter v. Artist M. that section 671(a)(15) of this title is not enforceable in a private right of action.
42 U.S.C. § 1320a-2 (1994); see also id. § 1320a-10 (identical provision); see also H.R. Conf. Rep. No. 761, 103d Cong., 2d Sess. 926 (1994), reprinted in 1994 U.S.C.C.A.N. 2901, 3257; see generally Note, Congress Overruling the Courts: Legislative Changes to the Scope of Section 1983, 29 Colum. J.L. & Soc. Probs 411 (1996). However, because the provision on which Doe relies, 42 U.S.C. § 5106a(b)(2), is not part of the Social Security Act, id. §§ 301-1397Í, this statute does not apply directly to Doe's claim.
. 42 U.S.C. § 5106g(8) (1994).
. In 1992 Congress further specified the conditions in paragraph (b)(4), amended subsection (a) to limit the purposes for which states could use the federal funds, and added a new subsection (c) to require the states to submit every four years a plan detailing how the state intends to spend the federal funds toward the purposes in subsection (a). Child Abuse, Domestic Violence, Adoption and Family Services Act of 1992, Pub.L. No. 102-295, § 114, 106 Stat. 187, 192-95 (1992). These provisions were not in effect at the time of Doe’s injury.
. The Court also noted that health care providers had been able to sue in federal court before enactment of the Boren Amendment and that nothing in the legislative history of the amendment indicated that Congress intended to deprive health care providers of their right to challenge rates under § 1983. Id. at 515-19, 110 S.Ct. at 2520-23.
. The Court noted that "when determining methods for calculating rates that are reasonably related to the costs of an efficient hospital, a *879State must consider: (1) the unique situation (financial and otherwise) of a hospital that serves a disproportionate number of low income patients, (2) the statutory requirement for adequate care in a nursing home, and (3) the special situation of hospitals providing inpatient care when long-term care at a nursing home would be sufficient but is unavailable.” Id. at 519 n. 17, 110 S.Ct. at 2522 n. 17 (citing 42 U.S.C. § 1396a(a)(13)(A)).
. Although Suter does not explicitly use the Wilder test, lower courts are in agreement that the analytical framework of Wilder still applies. See Freestone v. Cowan, 68 F.3d 1141, 1147-48 (9th Cir.1995), cert. granted sub nom. Blessing v. Freestone, - U.S. -, 116 S.Ct. 1671, 134 L.Ed.2d 775 (1996); Wood v. Tompkins, 33 F.3d 600, 605-06 (6th Cir.1994); Miller v. Whitburn, 10 F.3d 1315, 1319 (7th Cir.1993); Arkansas Med. Soc'y v. Reynolds, 6 F.3d 519, 524-25 (8th Cir.1993); Stowell v. Ives, 976 F.2d 65, 68 (1st Cir.1992). Moreover, in Lampkin v. District of Columbia, 27 F.3d 605 (D.C.Cir.), cert. denied, -U.S. -, 115 S.Ct. 578, 130 L.Ed.2d 493 (1994), this circuit applied the Wilder framework, asking whether the statute was intended to benefit persons like the plaintiffs, id.; whether the statute created substantively enforceable rights, id. at 610-11; whether the statutory standard was vague and amorphous, id. at 612; and whether Congress intended to foreclose private enforcement, id. at 611.
.The statute provided also that "each homeless child shall be provided services comparable to services offered to other students in the school”; that "[a]ny record ordinarily kept by the school ... of each homeless child or youth shall be maintained"; and that “[e]ach local educational agency serving homeless children or youth ... shall coordinate with local social services agencies” and "shall designate a homelessness liaison.” 42 U.S.C. § 11432(e)(5)-(8) (emphasis added).
. Paragraphs (4) through (8), which similarly require that the state "shall provide” for certain standards, may also create rights enforceable under § 1983, but Doe does not contend that appel-lees violated any of those provisions.
. The court's notation that it is applying the plain language of the statute. Op. at 866 n.6, provides no reason for concluding that the formulation “provide that [certain steps be taken]” should be synonymous with "provide a plan that requires that certain steps be taken.” That the *881former is written in the passive voice, by contrast with the designation of "local educational agencies” in the McKinney Act at issue in Lampkin, simply reflects that Congress left to the states discretion the choice of the institutional means for carrying out these duties.
. The Sixth Circuit has similarly concluded that the "mandatory language [of § 5106a(b)(2) ], as well as its inclusion as a requirement for eligibility, indicates that the requirement is a binding obligation rather than a congressional preference." Tony L. v. Childers, 71 F.3d 1182, 1189 (6th Cir.1995), cert. denied, -U.S. -, 116 S.Ct. 1834, 134 L.Ed.2d 938 (1996). The Sixth Circuit also concluded that paragraphs (1) and (3) more closely resemble the provisions found unenforceable in Suter. Id. at 1188 n. 12.
. In Marisol A. v. Giuliani, 929 F.Supp. 660 (S.D.N.Y.1996), the district court found that a § 1983 action could lie to enforce § 5106a(b)(2). In deciding that the statutory language was not overly vague, the court noted that it could “look to professional standards to determine whether ... the protective steps taken were appropriate.”
. The court's reliance on Doe by Nelson v. Milwaukee, 903 F.2d 499, 504 (7th Cir.1990), appears to be misplaced. Op. at 869-70. Doe's claim is based on the District of Columbia’s statute’s entitlement to protective services, D.C.Code §§ 6-2104, -2105, -2124, and the facts stated in her complaint pose none of the imponderables confronting the Seventh Circuit regarding the beneficiary and the timing of a hearing; it also implicate no Eleventh Amendment concerns. Hence, the Seventh Circuit’s conclusion that proper redress is to be sought through a damages action under state and local law, 903 F.2d at 505, does not necessarily apply to Doe. Op. at 870. See Taylor By and Through Walker v. Ledbetter, 818 F.2d 791, 799 (11th Cir.1987) (en banc), on which Doe relies, (holding that state statute gives rise to a procedural due process right, noting that the state statute mandated affirmative actions to ensure the well-being of children in foster care in addition to “procedural guidelines’’ for decision-making); Tarpeh-Doe v. United States, 904 F.2d 719 (D.C.Cir.1990).
. In a later decision, the Alaska Supreme Court has held that municipal notice-of-claim provisions are pre-empted by state statute. Johnson v. City of Fairbanks, 583 P.2d 181, 184-87 (Alaska 1978). Such concerns about the relation between states and local governments do not apply to the District of Columbia.
. See Miller v. Boone County Hosp., 394 N.W.2d 776 (Iowa 1986); Reich v. State Highway Dep’t, 386 Mich. 617, 194 N.W.2d 700 (1972); Turner v. Staggs, 89 Nev. 230, 510 P.2d 879, cert. denied, 414 U.S. 1079, 94 S.Ct. 598, 38 L.Ed.2d 486 (1973); Adamsky v. Buckeye Local Sch. Dist., 73 Ohio St.3d 360, 653 N.E.2d 212 (1995); Hunter v. North Mason High School, 85 Wash.2d 810, 539 P.2d 845 (1975) (en banc); O'Neil v. City of Parkersburg, 160 W.Va. 694, 237 S.E.2d 504 (1977); see also Note, Notice of Claim Provisions: An Equal Protection Perspective, 60 Cornell L.Rev. 417 (1975).
. See, e.g., Cal Gov’t Code § 911.4(1995); Md. Cts. & Jud. Proc.Code Ann. § 5-404 (1995); N.Y. Gen. Mun Law § 50-e (McKinney 1986 & Supp. 1996); Va.Code Ann. § 8.01-222 (1992).