Sixth Circuit Widens Split Re Whether § 1396a(a)(30) Provides Medicaid Recipients or Providers with a Right Enforceable under § 1983

Per Westside Mothers v. Olszewski, --- F.3d ----, 2006 WL 1976057, 2006 Fed.App. 0247P (6th Cir. Jul. 17, 2006):

Prior to Gonzaga University v. Doe, 536 U.S. 273 (2002), the circuits were split on the question of whether § 1396a(a)(30) provides Medicaid recipients or providers with a right enforceable under § 1983. The Fifth and Eighth Circuits each held that Medicaid recipients have a private right of action under § 1396a(a)(30). See Evergreen Presbyterian Ministries Inc. v. Hood, 235 F.3d 908, 927-28 (5th Cir.2000); Ark. Med. Soc'y, Inc. v. Reynolds, 6 F.3d 519, 528 (8th Cir.1993); cf. Pa. Pharmacists Ass'n v. Houstoun, 283 F.3d 531, 543-44 (3d Cir.2002) (en banc) (positing, in dicta, a right for recipients while rejecting such a right for providers); Visiting Nurse Ass'n v. Bullen, 93 F.3d 997, 1004 n. 7 (1st Cir.1996) (positing, in dicta, a right for recipients while holding that such a right existed for providers). The First, Seventh, and Eighth Circuits held that a private right of action existed for Medicaid providers. See Bullen, 93 F.3d at 1005; Methodist Hosps., Inc. v. Sullivan, 91 F.3d 1026, 1029 (7th Cir.1996); Ark. Med. Soc'y, 6 F.3d at 528. By contrast, the Third and Fifth Circuits explicitly held that § 1396a(a)(30) did not create a right enforceable by Medicaid providers. See Pa. Pharmacists Ass'n, 283 F.3d at 543; Walgreen Co. v. Hood, 275 F.3d 475, 478 (5th Cir.2001); Evergreen Presbyterian Ministries, 235 F.3d at 929. Since Gonzaga, the federal courts of appeals considering whether § 1396a(a)(30) provides Medicaid recipients or providers with a right enforceable under § 1983 have also come to conflicting conclusions. Compare Long Term Pharmacy Alliance v. Ferguson, 362 F.3d 50, 59 (1st Cir.2004) (holding that Medicaid providers do not have a private right of action under § 1396a(a)(30)), and Sanchez v. Johnson, 416 F.3d 1051, 1062 (9th Cir.2005) (concluding that § 1396a(a)(30) does not unambiguously manifest congressional intent to create individual rights), with Pediatric Specialty Care, Inc. v. Ark. Dep't of Human Servs., 443 F.3d 1005, 1015-16 (8th Cir.2006) (holding that § 1396a(a)(30) is enforceable by Medicaid recipients and providers through a § 1983 private cause of action).

After examining the text and structure of § 1396a(a)(30), we agree with the First and Ninth Circuits that § 1396a(a)(30) fails the first prong of the Blessing test and does not therefore provide Medicaid recipients or providers with a right enforceable under § 1983.


At 9:52 AM, Anonymous Anonymous said...

I don't have the time, energy, or background to go into it, but this looks like it might be related, but about a private right under 1396, rather than 1983. Copied from Lexis:

Civil remedy is implied under 42 USCS §§ 1396 et seq. and regulation (45 CFR 250.30(a)(6)) on behalf of Medicaid recipients in suit against state employees administering program for allegedly permitting providers to make extra charge to recipients for services fully paid for by Government. Yanez v Jones (1973, DC Utah) 361 F Supp 701, 17 FR Serv 2d 1351.

No private remedy may be implied under Medicaid Act, 42 USCS §§ 1396 et seq., or regulations promulgated by Secretary thereunder pursuant to 42 USCS § 1302. Fuzie v Manor Care, Inc. (1977, ND Ohio) 461 F Supp 689 (criticized in Zaborowski v Hospitality Care Ctr. of Hermitage, Inc. (2002, Co Ct) 60 Pa D & C4th 474, 2002 Pa D & C LEXIS 123).


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