The Equal Access Illusion: A Growing Majority of Federal Courts Erroneously Foreclose Private Enforcement of § 1396a(a)(30) of the Medicaid Act Using 42 U.S.C. § 1983

I. INTRODUCTIONMedicaid is a social welfare program that Congress established under the Medicaid Act, which is Title XIX of the Social Security Act of 1965.1 Like most grant-in-aid programs,2 Congress enacted the Medicaid Act pursuant to its spending powers, which are authorized under the United States Constitution (the Constitution).3 While states are not required to participate in Medicaid, once a state enrolls in the program it must agree to provide federally prescribed services.4 If a state fails to comply with the requirements of the Medicaid Act, the federal government has an administrative remedy available, though it is used and is generally considered to be ineffective.5 Alternatively, private citizens can institute action in an attempt to force a state to comply with the conditions of the Medicaid Act, which constitutes the effective remedy.6With respect to federal remedies, most grant-in-aid programs, including the Medicaid Act, vest the federal government with the power to withdraw funding from states that fail to meet their obligations.7 While federal agencies that operate grant-in-aid programs possess this authority, they rarely challenge many nonconforming provisions in state plans . . . . [so] cutoff of funds is rarely, if ever, invoked.8 Accordingly, intended beneficiaries of grant-in-aid programs are not adequately protected by federal remedies.9On the other hand, private citizens can sue state actors who violate rights secured by the Constitution or federal laws by using 42 U.S.C. § 1983, which is the real means by which citizens can ensure that states comply with federal grant-in-aid programs such as the Medicaid Act.1 In Blessing v. Freestone,11 the United States Supreme Court (Supreme Court) reasoned that [i]n order to seek redress through § 1983 ... a plaintiff must assert the violation of a federal right, not merely a violation of federal law.12 To determine whether a statutory confers a federal right, the Supreme Court established a three-part test that requires courts to examine the language of the statute in question and assess: (1) whether Congress intended that the statute benefit the plaintiff; (2) whether the rights in the statute are amenable to judicial enforcement; and (3) whether the statute clearly imposes a binding obligation upon the states.13 In Gonzaga University v. Doe, the Supreme Court clarified the Blessing test, making clear that only unambiguously conferred rights, as distinguished from mere benefits or interests, are enforceable under § 1983.15Because § 1983 constitutes the effective means by which states can be held accountable for complying with federal grant-in-aid requirements, private citizens have sought to use the statute to enforce their rights under federal laws since the early 1980s.16 Recently, private citizens in various jurisdictions attempted to use § 1983 to enforce a number of specific provisions of the Medicaid Act, including § 1396a(a)(8),17 § 1396a(a)(10),18 and § 1396a(a)(43).19 For the most part, citizens succeeded in bringing § 1983 claims for relief under each of these provisions.20Recently, however, a circuit split has developed concerning whether private citizens have a claim for relief under § 1983 if a state violates § 1396a(a)(30),21 the equal access provision of the Medicaid Act.22 Section 1396a(a)(30) states, in pertinent part, that:A State plan for medical assistance must - provide such methods and procedures relating to the utilization of, and the payment for, care and services available under the plan ... as may be necessary to safeguard against unnecessary utilization of such care and services and to assure that payments are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area. …