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.