Ball v. Rodgers

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PEG BALL; BENNIE JAMES, as 

grandfather and guardian of Cree

James, a minor person; JEANNE

SPINKA, as an individual and as a

representative of a class of persons

similarly situated,

Plaintiffs-Appellees,

and

VENETTA GRAHAM; PEGGY WILLIAM;

JUDETH HINTON; GRACE COLLIER; No. 04-16963

VIRGINIA HASKELL; LARRY

WILLIAMS,  D.C. No.

CV-00-00067-EHC

Plaintiffs-Intervenors- OPINION

Appellees,

v.

ANTHONY D. RODGERS, Director of

the Arizona Health Care Cost

Containment System, THE ARIZONA

HEALTH CARE COST CONTAINMENT

SYSTEM ADMINISTRATION, and the

STATE OF ARIZONA,

Defendants-Appellants.



Appeal from the United States District Court

for the District of Arizona

Earl H. Carroll, District Judge, Presiding

Argued September 12, 2006

Submitted July 17, 2007

San Francisco, California

Filed July 17, 2007

8567

8568 BALL v. RODGERS

Before: Betty B. Fletcher and Marsha S. Berzon,

Circuit Judges, and David G. Trager,* Senior Judge.

Opinion by Judge Berzon

*The Honorable David G. Trager, Senior United States District Judge

for the Eastern District of New York, sitting by designation.

BALL v. RODGERS 8571

COUNSEL

Logan T. Johnston, Johnston Law Offices, Phoenix, Arizona,

for the defendants-appellants.

Sally Hart and Jennifer L. Nye, Arizona Center for Disability

Law, Tuscon, Arizona, and Sarah Lenz Lock, AARP Litiga-

tion, Washington, D.C., for the plaintiffs-appellees.

OPINION

BERZON, Circuit Judge:

A certified class of elderly, physically disabled, and

developmentally disabled Medicaid beneficiaries (“the Med-

icaid beneficiaries”) alleges that Arizona is failing to provide

them with adequate home- and community-based health care

services, thereby violating several provisions of the federal

Medicaid Act, 42 U.S.C. §§ 1396 et seq.1 Defendant Anthony

D. Rodgers — director of the Arizona Health Care Cost Con-

tainment System (“AHCCCS”),2 the state agency that admin-

isters Arizona’s Medicaid program — appeals a district court

judgment permitting the case to proceed and holding, after a

bench trial, that the state was indeed operating its Medicaid

program inconsistently with federal requirements. Rodgers

(“the Director” or “Arizona” or “the state”) also appeals the

district court’s decision to grant the Medicaid beneficiaries

permanent injunctive relief.3

Since the district court’s judgment was entered, there has

been an intervening change in our circuit’s case law of critical

1

Unless otherwise stated, all statutory citations are to 42 U.S.C.

2

The acronym is pronounced “access.”

3

The district court’s judgment was originally directed against Phyllis

Biedess, former director of AHCCCS. Rodgers has since replaced Biedess.

8572 BALL v. RODGERS

importance to this case. The district court originally con-

cluded that Arizona violated the Medicaid Act’s “equal

access” provision, § 1396a(a)(30)(A). We have since held that

this provision does not accord Medicaid recipients individual

rights enforceable under § 1983. See Sanchez v. Johnson, 416

F.3d 1051, 1059-60 (9th Cir. 2005). We therefore must

reverse the judgment below insofar as it rests on this viola-

tion.

Sanchez does not, however, wholly determine this appeal.

The district court separately held that Arizona violated two

other Medicaid Act subsections, known as the “free choice”

provisions, §§ 1396n(c)(2)(C) and (d)(2)(C).4 Under these

provisions, we conclude, Medicaid recipients enjoy rights that

can be enforced in a § 1983 cause of action. For reasons that

will be discussed infra, we do not go beyond that conclusion

in this appeal. Instead we remand to the district court for fur-

ther fact-finding and, if the facts and law so merit, entry of a

new injunction tailored to the scope of the surviving claims.

On remand, the district court should also consider whether

Arizona violated the Americans with Disabilities Act

(“ADA”), §§ 12131-12134, and Section 504 of the Rehabilita-

tion Act of 1973, 29 U.S.C. § 794 — two claims that survived

the summary judgment phase of the proceedings below but

which the district court did not address in its post-trial deci-

sion.

I

A

On January 27, 2000, Peg Ball, Cree James, and Jeanne

4

The Medicaid Act contains a third section sometimes referred to as a

“freedom of choice” provision, § 1396a(a)(23). That section is concerned

with patients’ choice among medical assistance providers and is not at

issue here. So when we refer in this opinion to the “free choice” provision,

we refer, unless we state otherwise, to §§ 1396n(c)(2)(C) and (d)(2)(C).

BALL v. RODGERS 8573

Spinka filed a complaint seeking declaratory and injunctive

relief against Rodgers and the state. Ball, James, and Spinka,

like the class members they represent, each qualify for Medic-

aid, “a cooperative federal-state program that directs federal

funding to states to assist them in providing medical assis-

tance to low-income individuals.” See Katie A. v. Los Angeles

County, 481 F.3d 1150, 1153-54 (9th Cir. 2007); see also

§ 1396 (explaining that the purpose of Medicaid is to “en-

abl[e] each State, as far as practicable under the conditions in

such State, to furnish . . . medical assistance on behalf of . . .

individuals, whose income and resources are insufficient to

meet the costs of necessary medical services”).

Each plaintiff also qualifies for home- and community-

based services (“HCBS”) through a federal “waiver program”

that allows states to give individuals who would otherwise be

eligible to receive Medicaid benefits in a more traditional,

long-term institution the option of receiving care in their

homes or in community-based residences.5 Congress enacted

the HCBS waiver program “in response to the fact that a dis-

proportionate percentage of Medicaid resources were being

used for long-term institutional care and studies showing that

many persons residing in Medicaid-funded institutions would

be capable of living at home or in the community if additional

support services were available. . . .” See Sanchez, 416 F.3d

at 1054. States qualify for the program by applying to the

Department of Health and Human Services and certifying to

that agency that the cost of caring for a qualified individual

through HCBS “will be less than or equal to the cost” of car-

ing for him in an institution. Id.; see also Bryson v. Shumway,

308 F.3d 79, 82 (1st Cir. 2002) (describing application pro-

cess and goals of the HCBS waiver program and explaining

that the program is intended to be “expenditure-neutral”).

5

In the district court, this case was tried on the premise that Arizona’s

HCBS waiver program was authorized under § 1396n of the Medicaid

Act. As will appear, the state now says that this is not the case. See discus-

sion infra pp. 8608-09.

8574 BALL v. RODGERS

In Arizona, HCBS-eligible Medicaid recipients or their

guardians can choose from a variety of noninstitutional care

options, including adult foster care residences, assisted living

homes, assisted living centers, hospices, or group homes.

They also can elect to remain in their own homes. Under any

of these noninstitutional care options, beneficiaries may qual-

ify to receive regular living assistance from “attendant care

workers.” These workers report to the homes or community-

based residences of Medicaid recipients, often daily, and,

among other things, lift them out of their beds, place them in

their wheelchairs, bathe them, help them use the bathroom,

feed them, cook for them, administer shots, give medications,

or accompany them on visits to the doctor or the grocery

store. In other words, they make relatively independent lives

possible for individuals who, medically speaking, are well

enough that they do not require hospitalization or other forms

of twenty-four-hour care.6

It is this particular benefit — the services of attendant care

workers — that is the focal point of this class action. Accord-

ing to the Medicaid beneficiaries, their decision to opt for

home- or community-based care was repeatedly compromised

6

Lead plaintiff Ball, for example, is a wheelchair-bound quadriplegic,

who suffers from spinal muscular atrophy. According to the complaint,

Ball relies on attendant workers to lift her out of bed and into a motorized

wheelchair as well as to help her with “dressing, bathing, eating, and toi-

leting.” Without this help, Ball alleges in the complaint, she would be

unable to lead “an active and productive life,” which involves running her

own business out of her home and serving on a statewide committee

focused on helping the physically disabled.

Named plaintiffs James and Spinka receive similar assistance from

attendant care workers. James is a child who is a resident of a Navajo res-

ervation located within Arizona’s borders and has been diagnosed with

periventricular leukomalacia, mental retardation, and developmental

delay. According to the complaint, James “requires constant supervision,

and assistance with all activities of daily living, including feeding and toi-

leting,” which attendant care workers provide. Spinka is a quadriplegic,

who relies on attendant care workers to lift her out of bed and into a

wheelchair, dress her, cook for her, and do housekeeping and shopping.

BALL v. RODGERS 8575

when state officials failed to provide them with adequate

attendant-care-worker services. Their complaint describes

scenarios in which attendant care workers “quit on short

notice because they found better paying jobs” or where “no

attendant care workers [were] available at all.” On other occa-

sions, the Medicaid beneficiaries alleged, the attendant care

workers who arrived at their residences proved poorly trained.

“If the shortfall in attendant care services is not corrected,”

their complaint asserted, “plaintiffs and other HCBS benefi-

ciaries will be unable to continue living in their homes,” and

thus be compelled to move into the very institutions the

HCBS waiver program was designed to help them avoid.

By forcing the Medicaid beneficiaries into this precarious

position, they alleged, Arizona violated several federal stat-

utes, including: (1) the Medicaid Act’s “equal access” provi-

sion, § 1396a(a)(30)(A); (2) the Medicaid Act’s “free choice”

provisions, §§ 1396n(c)(2)(C) and (d)(2)(C); (3) provisions of

the ADA that require that HCBS be made available to quali-

fied individuals with disabilities, §§ 12131-34; and (4) Sec-

tion 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794,

and its implementing regulations.

B

After granting summary judgment to Arizona on several

causes of action,7 and deciding various procedural

7

The Medicaid beneficiaries’ complaint had alleged violations of: (1)

§ 1396a(a)(8), the Medicaid Act’s “reasonable promptness” provision; (2)

42 C.F.R. § 435.930(b), a Medicaid Act implementing regulation which

mandates that once an individual has been found eligible, the state agency

must “furnish Medicaid regularly . . . until [he or she is] found to be ineli-

gible”; (3) Arizona law, including Arizona Revised Statute §§ 36-2931 et

seq., and “the agreement in the Arizona State [Medicaid] Plan that HCBS

. . . be provided to eligible persons”; (4) “the notice and hearing require-

ments” of the Fourteenth Amendment’s Due Process Clause; (5) the Med-

icaid Act’s “notice and fair hearing requirements,” § 1396a(a)(3); 42

8576 BALL v. RODGERS

matters,8 the district judge ultimately presided over a three-

day bench trial. Testifying at the trial were Medicaid recipi-

ents, AHCCCS officials, subcontractors who employed atten-

dant care workers on the state’s behalf, and a labor economist,

who offered evidence regarding the wage rate needed to

attract a sufficient number of attendant care workers to the

Medicaid market. The district court issued its final judgment

in August 2004, holding that Arizona had violated both the

Medicaid Act’s equal access and the Act’s free choice provi-

sions by failing to provide the Medicaid beneficiaries with

adequate HCBS. The decision made no mention of the ADA

or Rehabilitation Act claims.

As part of its decision, the district court made several find-

ings of fact, which we summarize here. To begin, the district

court found that Arizona underpaid its attendant care workers

C.F.R. §§ 431.200 et seq.; and (6) the “notice, grievance and hearing

requirement” of Arizona Revised Statute § 36-2903.01 and Ariz. Admin.

Code R9-22-316. On May 8, 2002, the district court granted Arizona’s

cross-motion for summary judgment on each of these claims. The Medic-

aid beneficiaries have not cross-appealed that order.

The Medicaid beneficiaries’ complaint also alleged that Arizona vio-

lated § 1396a(a)(10)(A)(ii)(VI), a Medicaid Act provision that requires

that “[a] state plan for medical assistance” provide “home or community-

based services” to individuals covered by a HCBS waiver granted to a

state under §§ 1396n(c), (d), or (e). Although they moved for summary

judgment on this claim, the district court never addressed it in its order

granting summary judgment with respect to some claims and denying it

with respect to others. It also never addressed this statute in its final, post-

trial decision. Neither party has raised or briefed this claim on appeal.

8

Two of these are worth noting: First, the district court granted a motion

to intervene filed by six Arizona residents who also qualified for Medicaid

and HCBS. Second, the court also granted the Medicaid beneficiaries’

motion for class certification under Federal Rule of Civil Procedure

23(b)(2), defining the class as “includ[ing] all persons in the State of Ari-

zona who have been or will be eligible for [HCBS] from [AHCCCS], but

are not provided with the full amount of such services prescribed in their

care plans.”

BALL v. RODGERS 8577

as compared to what these workers could otherwise earn in

the non-Medicaid home care market. This wage differential,

it found, created a shortage of attendant care workers in the

Medicaid system, a shortage that, in turn, both created “exten-

sive waiting lists of beneficiaries who qualified for attendant

care workers” and decreased the quality of care available for

HCBS beneficiaries. The chronic shortfall of attendant care

workers, the district court went on, would not have occurred

had the state paid these workers more competitive wages —

in particular, a $9- or $10-per-hour wage rate, rather than the

$6.25- to $8.50-per-hour wage rate then in effect.

Aside from these findings concerning wages, the district

court also found that other of Arizona’s policies and proce-

dures contributed to inadequate HCBS. For example, the state

did not have contingency plans in place for those times when

attendant care workers did not show up as scheduled; did not

survey beneficiaries to ensure they were receiving adequate

services; did not systematically monitor gaps in service; and

did not have a grievance process in place so that beneficiaries

could report these gaps.

Overall, the district court found, “[i]t is the policy of AHC-

CCS that an HCBS beneficiary assumes the risk, by choosing

to remain at home rather than be institutionalized, that ser-

vices he or she is depend[e]nt upon will not be delivered.”

The result of this policy, the district court continued, was

exactly as the Medicaid beneficiaries had alleged in their orig-

inal complaint: “On numerous occasions, each was left with

no home health care attendant to care for them,” which

resulted in “grave consequences, such as complete immobil-

ity, hunger, thirst, muscle aches, and other physical and men-

tal distresses.” In support of these conclusions, the district

court cited testimony from class members who spoke of

“being trapped in bed unable to change position or care for

personal hygiene, abandoned for hours in a bathroom, left

without food or water . . . due to the lack or absence of health

care providers.” Based on these findings, the district court

8578 BALL v. RODGERS

concluded that Arizona had “failed to provide the representa-

tive class members with the equal access, quality of care, and

freedom of choice to which they are entitled,” and had thus

violated § 1396a(a)(30)(A) and §§ 1396n(c)(2)(C) and

(d)(2)(C), the equal access and free choice provisions of the

Medicaid Act.9

To remedy these violations, the district court ordered exten-

sive injunctive relief: The court ordered the state to increase

the wages of attendant care workers to a more competitive rate;10

to implement a grievance process, which would include,

among other things, a hotline that HCBS beneficiaries could

call to report a gap in “critical services”;11 and to develop con-

tingency plans so that any gaps could be filled within four

hours. The district court retained jurisdiction over the injunc-

tion so as to monitor Arizona’s compliance.

9

Arizona maintains on appeal that the district court never actually con-

cluded that they had violated the free choice provisions, but that is not so.

True, the district court’s discussion of the free choice provisions is consid-

erably more cursory than its discussion of the equal access provision. Still,

the final judgment rests in part on the free choice provisions. See Ball v.

Biedess, No. CIV 00-0067-TUC-EHC, slip op. at 12, ¶ 18 (D. Ariz. Aug.

13, 2004) (concluding that “[i]nstitutionalization is not a viable ‘choice’

for patients who qualify for AHCCCS programs but do not receive the ser-

vices to which they are entitled,” and citing to §§ 1396n(c)(2)(C) and

(d)(2)(C)); id. ¶ 19 (holding that “[b]ased on the foregoing,” AHCCCS

administrators have a duty “to ensure compliance with quality care, equal

access, and freedom of choice requirements” (emphasis added)); id. ¶ 20

(concluding that “defendants failed to provide . . . class members with the

. . . freedom of choice to which they are entitled”).

10

The district court did not specify a rate. Instead, it ordered the state

to consider several factors when computing wages, including “Medicare

rates, private sectors rates, costs for delivering services, any economic fac-

tors unique to Arizona, and current levels of supply and demand.”

11

The injunction defines “critical services” as “personal care services”

that include “bathing, toileting, dressing, feeding, transferring to or from

beds or wheelchairs, and assistance with other similar daily activities.” It

defines “gaps” in critical services as the difference between the number of

critical-service hours an HCBS recipient is scheduled to receive and the

number of hours actually delivered.

BALL v. RODGERS 8579

Shortly after the district court issued its decision, Arizona

filed a motion for a new trial or, in the alternative, a stay of

the injunction. In particular, the state argued that evidence

heard at the October 2003 bench trial was insufficient to sup-

port the injunction because it primarily concerned a state of

affairs that existed prior to August 31, 2001, the date of the

discovery deadline. As a result, Arizona contended, the evi-

dence did not reflect the state’s more recent efforts to amelio-

rate the attendant care worker problem. The district court

denied both motions, stating, first, that the injunction already

accounted for improvements achieved by the reforms and,

second, that the state itself was responsible for any lack of

evidence regarding conditions post-August 31, 2001, because

it had objected when the Medicaid beneficiaries had previ-

ously asked the district court to extend the discovery deadline.

This appeal followed.

II

Both parties have raised numerous issues on appeal, most

of which, as will become apparent, cannot be decided without

remand and further proceedings. Instead, we focus on whether

the two primary causes of action alleged could go forward

under any circumstances. If they cannot, then we would have

to dismiss the case without more ado, and the factual, proce-

dural, legal, and remedial issues on which we ultimately

remand would not matter. It thus furthers judicial efficiency

for us to decide now the logically antecedent question

whether any cause of action could go forward under § 1983

for the violations alleged in the complaint if supported by the

factual record.

So proceeding, we first address the effect of Sanchez v.

Johnson, 416 F.3d at 1051, on the district court’s conclusion

that Arizona violated the Medicaid Act’s equal access provi-

sion. We next turn our attention to the district court’s alternate

conclusion — that the state also violated the Medicaid Act’s

8580 BALL v. RODGERS

free choice provisions — and consider whether these statutes

provide Medicaid recipients with individual rights that can be

enforced under § 1983. This latter analysis comprises the bulk

of our opinion. After addressing these two issues, we define

the scope of our remand to the district court.

III

[1] Under the Medicaid Act’s “equal access” provision,

A State plan for medical assistance must . . . provide

such methods and procedures relating to the utiliza-

tion of, and the payment for, care and services avail-

able 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.

§ 1396a(a)(30)(A). During the pendency of this appeal, we

decided, in Sanchez v. Johnson, that the equal access provi-

sion does not confer individual rights enforceable under

§ 1983 upon recipients of Medicaid funds. 416 F.3d at 1060.

[2] In the district court and in the opening brief here, Ari-

zona did not question the Medicaid beneficiaries’ allegation

that a cause of action lies under § 1983 for violation of Med-

icaid’s equal access provision. Ordinarily, that omission

would preclude consideration of the issue on appeal. See

Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th Cir. 1990)

(explaining that “the general rule” in this circuit is that an

issue is considered waived if the appellant does not properly

raise it until his reply brief) (citing Nw. Acceptance Corp. v.

Lynnwood Equip., Inc., 841 F.2d 918, 924 (9th Cir. 1988)

BALL v. RODGERS 8581

(internal quotation marks omitted). We nonetheless address

the question, under the “exception to the waiver rule . . . for

intervening changes in the law.” See Big Horn County Elec.

Co-op., Inc. v. Adams, 219 F.3d 944, 953 (9th Cir. 2000).12 As

mandated by Sanchez, we reverse the district court’s holding

that Arizona is liable in this § 1983 action for violation of

§ 1396a(a)(30)(A).

IV

[3] Sanchez, however, does not end our inquiry, as we

must now separately consider the district court’s conclusion

that the state also violated §§ 1396n(c)(2)(C) and (d)(2)(C),

the Medicaid Act’s free choice provisions. Before we review

this substantive holding, however, we consider a predicate

question — namely, whether §§ 1396n(c)(2)(C) and (d)(2)(C)

give Medicaid recipients individual rights whose violation can

be remedied under § 1983. Although the district court

assumed so, it never addressed this question, and although it

is not jurisdictional, “and therefore may be assumed without

being decided,” we nevertheless elect to “consider it on the

merits in light of the supplemental briefing provided by the

parties.” See Price, 390 F.3d at 1108 (citing Lapidus v. Hecht,

232 F.3d 679, 681 n.4 (9th Cir. 2000)); see also note 12 supra.13

12

Both parties had an opportunity fully to address the effect of Sanchez

on this appeal through supplemental briefs filed before argument.

We note that the issue of waiver is relevant because the question

whether a statutory right of action exists goes to the merits of a claim, not

our jurisdiction. See Bell v. Hood, 327 U.S. 678, 682 (1946) (“[I]t is well

settled that the failure to state a proper cause of action calls for a judgment

on the merits and not for a dismissal for want of jurisdiction.”); Price v.

City of Stockton, 390 F.3d 1105, 1108 (9th Cir. 2004) (per curiam)

(explaining that the issue of whether a private right of action exists under

§ 1983 for enforcement of a federal statutory right “is not one of jurisdic-

tion”).

13

Both parties addressed this question in a second round of supplemen-

tal briefing filed after argument.

8582 BALL v. RODGERS

Otherwise, the issue could well arise on remand and its reso-

lution challenged in a later appeal.

In doing so, we hold that the Medicaid beneficiaries enjoy

individual rights under §§ 1396n(c)(2)(C) and (d)(2)(C) that

can be enforced under § 1983. The language of the free choice

provisions is sufficiently “rights-creating,” see Gonzaga Univ.

v. Doe, 536 U.S. 273, 287 (2002) (citing Alexander v. Sando-

val, 532 U.S. 275, 288-89 (2001), and Cannon v. Univ. of

Chicago, 441 U.S. 677, 690, 693 n.13 (1979)), and the rights

conferred by the two provisions are neither “vague and amor-

phous,” nor impose upon states a merely precatory obligation,

see Blessing v. Freestone, 520 U.S. 329, 340-41 (1997). Fur-

thermore, § 1983 provides the proper avenue for relief

because Arizona has failed to show that Congress “fore-

closed” that option by adopting another, more comprehensive

enforcement scheme. See Gonzaga, 536 U.S. at 284, 285 n.4

(citing Smith v. Robinson, 468 U.S. 992, 1004-05, 1005 n.9

(1984)).

A

In Maine v. Thiboutot, 448 U.S. 1, 4 (1980), the Supreme

Court concluded that the remedy afforded by § 1983 can be

used to bring actions against state actors for “violations of

federal statutory as well as constitutional law.”14 One year

14

Under § 1983,

Every person who, under color of any statute, ordinance, regula-

tion, custom, or usage, of any State or Territory or the District of

Columbia, subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured by

the Constitution and laws, shall be liable to the party injured in

an action at law, suit in equity, or other proper proceeding for

redress. . . .

(Emphasis added.)

The Supreme Court, in passing and with no decisional significance,

described Thiboutot as “the first time” it recognized “that § 1983 actions

BALL v. RODGERS 8583

later, the Court established two limitations on the use of

§ 1983 in enforcing federal statutes enacted pursuant to Con-

gress’s Spending Clause powers. First, in Pennhurst State

School and Hospital v. Halderman the Court explained that in

cases of “legislation enacted pursuant to the spending power,

the typical remedy for state noncompliance with federally

imposed conditions is not a private cause of action for non-

compliance but rather action by the Federal Government to

terminate funds to the State.” 451 U.S. 1, 28 (1981) (emphasis

added). Thus, the remedy recognized in Thiboutot applies

with regard to federal statutes enacted under the Spending

Clause only when “Congress ‘speak[s] with a clear voice,’

and manifests an ‘unambiguous’ intent to confer individual

rights.” See Gonzaga, 536 U.S. at 280 (quoting Pennhurst,

451 U.S. at 17, 28, and 28 n.21). Second, in Middlesex County

Sewerage Authority v. National Sea Clammers Ass’n, 453

U.S. 1 (1981), the Court explained that “[w]hen the remedial

devices provided in a particular Act are sufficiently compre-

hensive, they may suffice to demonstrate congressional intent

to preclude the remedy of suits under § 1983.” Id. at 20.

may be brought against state actors to enforce rights created by federal

statutes,” see Gonzaga, 536 U.S. at 279 (emphasis added), and we have

repeated this observation in our own subsequent cases. See, e.g., Sanchez,

416 F.3d at 1056. We note for purposes of historical accuracy that Thibou-

tot itself did not regard its holding as novel. Instead, Thiboutot stated that

any question concerning whether § 1983 applies to violations of statutory

rights “has been resolved by our several cases suggesting, explicitly or

implicitly, that the § 1983 remedy broadly encompasses violations of fed-

eral statutory as well as constitutional law.” See Thiboutot, 448 U.S. at 4

(emphasis added). See also id. at 4-6 (citing, as examples of such prece-

dent, Owen v. City of Independence, 445 U.S. 622 (1980); Monell v. N.Y.

City Dep’t of Soc. Servs., 436 U.S. 658 (1978); Mitchum v. Foster, 407

U.S. 225 (1972); Lynch v. Household Fin. Corp., 405 U.S. 538 (1972);

Rosado v. Wyman, 397 U.S. 397 (1970); Greenwood v. Peacock, 384 U.S.

808 (1966); Hague v. CIO, 307 U.S. 496 (1939)), and then citing a series

of additional Supreme Court cases involving the Social Security Act as

further support for the proposition that the Court, well before Thiboutot,

had recognized that § 1983 can provide a cause of action to remedy fed-

eral statutory violations).

8584 BALL v. RODGERS

[4] Since Pennhurst and Sea Clammers, the Supreme Court

has developed a three-prong framework for “determining

whether a particular statutory provision gives rise to a federal

right” redressable via § 1983.15 See Blessing, 520 U.S. at 340.

Specifically, courts must consider whether: (1) “Congress . . .

intended that the provision in question benefit the plaintiff”;

(2) the plaintiff has “demonstrate[d] that the right assertedly

protected by the statute is not so ‘vague and amorphous’ that

its enforcement would strain judicial competence”; and (3)

“the statute . . . unambiguously impose[s] a binding obligation

on the States,” such that “the provision giving rise to the

asserted right . . . [is] couched in mandatory, rather than pre-

catory terms.” Id. at 340-41 (citing Wilder v. Va. Hosp. Ass’n,

496 U.S. 498, 510-11 (1990), superseded on other grounds by

statute as discussed in Alaska Dep’t of Health & Soc. Servs.

v. Ctrs. for Medicare & Medicaid Servs., 424 F.3d 931, 941

(9th Cir. 2005), Wright v. Roanoke Redevelopment and Hous.

Auth., 479 U.S. 418, 430, 321-32 (1987); and Pennhurst, 451

U.S. at 17)).

In a 2002 decision, Gonzaga University v. Doe, the Court

clarified the first of these three factors. As Gonzaga

explained:

Section 1983 provides a remedy only for the depri-

vation of “rights, privileges, or immunities secured

by the Constitution and laws” of the United States.

15

Thibuotot, Pennhurst, Blessing, Gonzaga, and Sanchez are all cases

concerning federal statutes enacted pursuant to the Constitution’s Spend-

ing Clause. Several of these cases stress the contractual nature of the

federal-state relationship underlying such statutes. Whether the same

degree of statutory clarity in creating rights enforceable under § 1983 is

necessary outside the Spending Clause context is a question we need not

consider today, as the Medicaid Act is also a Spending Clause statute. Cf.

Golden State Transit Corp. v. Los Angeles, 493 U.S. 103 (1989) (holding

with regard to the National Labor Relations Act, a statute enacted pursuant

to the Commerce Clause rather than the Spending Clause, that a right

implied from the structure of the statute but not explicitly stated is

enforceable under § 1983).

BALL v. RODGERS 8585

Accordingly, it is rights, not the broader or vaguer

“benefits” or “interests,” that may be enforced under

the authority of that section.

536 U.S. at 283. “This being so,” the Court went on, “we fur-

ther reject the notion that our implied right of action cases are

separate and distinct from our § 1983 cases.” Instead, the

Court explained, that line of cases should “guide the determi-

nation of whether a statute confers rights enforceable under

§ 1983.” Id. Certainly, Gonzaga acknowledged, the two inqui-

ries differ, for unlike plaintiffs suing under an implied right

of action, “[p]laintiffs suing under § 1983 do not have the bur-

den of showing an intent to create a private remedy because

§ 1983 generally supplies a remedy for the vindication of

rights secured by federal statutes.” Id. at 284.16 At the same

time, however, both inquiries “overlap in one meaningful

respect”: “in either case [a court] must first determine whether

Congress intended to create a federal right.” Id. at 283

(emphasis omitted).17

16

In an implied private right of action case, on the other hand, “[a]

plaintiff . . . must demonstrate that Congress intended to create not only

a private right but also a private remedy.” See Price, 390 F.3d at 1109 n.3

(quoting Sandoval, 532 U.S. at 286); see also Cort v. Ash, 422 U.S. 66,

78 (1975) (where the Supreme Court enunciated a four-factor test to be

applied in implied right of action cases); Touche Ross & Co. v. Redington,

442 U.S. 560, 575 (1979) (modifying the Cort test). Both parties here had

the opportunity in their second round of supplemental briefs to address

whether §§ 1396n(c)(2)(C) and (d)(2)(C) provide Medicaid recipients with

an implied right of action. There is no need to separately address the

implied right of action question, however, because we hold that these stat-

utes confer individual rights enforceable under § 1983.

17

The conceptual distinction between a right and a right of action that

appears in Gonzaga is not unique to § 1983 law. The literature on rights,

as distinct from rights of action, is vast and varied and, as it is at least as

old as the Enlightenment, naturally predates the doctrines surrounding

judicial enforceability of rights through claims brought by private parties.

See, e.g., Ronald Dworkin, TAKING RIGHTS SERIOUSLY, xi (1977) (rights as

constraints on the state), Oliver Wendell Holmes, Jr., THE COMMON LAW,

214 (Dover, 1991) (1881) (characterizing a right as both a permission to

8586 BALL v. RODGERS

Under Gonzaga, evidence of such intent can be found in a

statute’s language as well as in its overarching structure. Id.

at 286 (holding that “where the text and structure of the stat-

ute provide no indication that Congress intends to create new

individual rights, there is no basis for a private suit”). In par-

ticular, the statute must be “ ‘phrased in terms of the persons

benefited . . . . with an unmistakable focus on the benefited

class.’ ” Id. at 284 (quoting Cannon, 441 U.S. at 691, 692,

n.13) (emphasis in original); see also id. at 287 (holding that

“there is no question” that the nondisclosure provisions of the

Family Educational Rights and Privacy Act (FERPA) “fail to

confer enforceable rights” because the “focus” of those provi-

sions is “two steps removed from the interests of individual

students and parents”); Price, 390 F.3d at 1110 (explaining

that the “focus” of the provision should be “on individual

entitlement to benefits rather than the aggregate or system-

wide policies and practices of a regulated entity” (citing Gon-

zaga, 536 U.S. at 287-88)).

As examples of language in federal funding statutes that

satisfies this standard, Gonzaga pointed to Title VI of the

Civil Rights Act of 1964, which provides, in part, that “[n]o

person in the United States shall . . . be subjected to discrimi-

nation,” and Title IX of the Education Amendments of 1972,

which similarly provides that “[n]o person in the United

States shall, on the basis of sex, . . . be subjected to discrimi-

nation.” Id. at 284 & n.3. In Sanchez, our circuit recognized

that “our inquir[ies] should not be limited to looking for those

act but also as a right to the coercive force of the state to protect the sub-

stance of the right), Immanuel Kant, “On the Relationship of Theory to

Practice in Political Right,” in KANT’S POLITICAL WRITINGS, 73, 73 (H.

Reiss ed. 1999) (1793) (characterizing rights as restrictions on individual

freedoms used to harmonize community relations). Individuals have rights

regardless of whether or not they may personally sue in court to enforce

them, and those rights are valid with or without judicial intervention by

any party. A right of action is merely one way in which a right may be

used to constrain the state or other individuals.

BALL v. RODGERS 8587

precise phrases,” although “statutory language less direct than

the individually-focused ‘No person shall . . .’ must be sup-

ported by other indicia so unambiguous that we are left with-

out any doubt that Congress intended to create an individual,

enforceable right remediable under § 1983.” 416 F.3d at 1058.

In addition to the language and structure of a statute, we

have held, “[a]gency regulations . . . may be considered in

applying the three-prong Blessing test,” because “[a]s an

agency interpretation of a statute, a regulation may be relevant

in determining the scope of the right conferred by Congress.”

See Save Our Valley v. Sound Transit, 335 F.3d 932, 943 (9th

Cir. 2003) (citing S. Camden Citizens in Action v. New Jersey

Dep’t. of Envtl. Prot., 274 F.3d 771, 783 (3d Cir. 2001)); see

also Price, 390 F.3d at 1112-13. Finally, we have sometimes

turned to a statute’s legislative history to help flesh out con-

gressional intent regarding the creation of a federal right. See,

e.g., Price, 390 F.3d at 1111-12 (looking to congressional

reports to ascertain what specific benefits legislators intended

low and moderate income residents to enjoy under the Hous-

ing and Community Development Act).

B

It is against this jurisprudential backdrop that we examine

§§ 1396n(c)(2)(C) and (d)(2)(C), the free choice provisions of

the Medicaid Act to determine whether it creates individual

rights enforceable via § 1983.18

18

There is no prior Ninth Circuit case addressing whether these two sub-

sections confer individual rights enforceable via § 1983. The Sixth Circuit

decided a near-identical question before both Gonzaga and Blessing. See

Wood v. Tompkins, 33 F.3d 600, 611 (6th Cir. 1994) (holding that

§ 1396n(c)(2)(C) “give[s] rise to enforceable rights”). Wood applied the

same factors Blessing prescribes, id. at 607-08, but the overall thrust of its

analysis was focused on whether the overarching statutory provision —

§ 1396n(c)(2) — meets those standards. In Blessing, the Supreme Court

explained that, when determining whether a federal statute confers indi-

vidual rights, courts must engage in “methodical inquir[ies]” in which the

8588 BALL v. RODGERS

We begin our analysis with the language of the two stat-

utes. As explained earlier, the HCBS waiver program allows

states to be reimbursed for providing beneficiaries with nonin-

stitutional care, so long as the cost of providing this care is

less than or equal to the cost of caring for the same beneficia-

ries in more traditional long-term institutions. See infra pp.

8573-74. HCBS waivers are only available, however, if a state

provides certain “assurances” to the Secretary of Health and

Human Services. See §§ 1396n(c)(2), (d)(2) (“A waiver shall

not be granted under this subsection unless the State provides

assurances satisfactory to the Secretary that . . . .”).

Section 1396n(c)(2)(C), which is focused on HCBS for the

disabled, codifies one such assurance. Under that provision, a

state must guarantee that,

such individuals who are determined to be likely to

require the level of care provided in a hospital, nurs-

ing facility, or intermediate care facility for the men-

tally retarded are informed of the feasible

alternatives, if available under the waiver, at the

choice of such individuals, to the provision of inpa-

tient hospital services, nursing facility services, or

rights claimed are “identif[ied] with particularity.” See 520 U.S. at 342-43;

see also id. at 344 (explaining that the “Court of Appeals erred

. . . in taking a blanket approach to determining whether Title IV-D creates

rights”). We therefore rely on Wood only to the extent that its analysis is

specifically relevant to § 1396n(c)(2)(C).

Three district courts have more recently confronted the issue in pub-

lished opinions, with two reaching the same conclusion as Wood. See

Michelle P. ex rel. Deisenroth v. Holsinger, 356 F. Supp. 2d 763, 769

(E.D. Ky. 2005) (holding that § 1396n(c)(2)(C) confers individual rights

enforceable under § 1983, but reaching this outcome somewhat summa-

rily); Cramer v. Chiles, 33 F. Supp. 2d 1342, 1351 (S.D. Fla. 1999)

(same); M.A.C. v. Betit, 284 F. Supp. 2d 1298, 1307 (D. Utah 2003) (find-

ing no individual right in § 1396n(c)(2)(C) that could be enforced under

§ 1983, but conducting an even briefer analysis of the issue than those dis-

trict court decisions coming to the opposite conclusion).

BALL v. RODGERS 8589

services in an intermediate care facility for the men-

tally retarded.

(Emphases added.) Section 1396n(d)(2)(C) contains a closely

analogous requirement, although it pertains to a different seg-

ment of the Medicaid population, the elderly. Under this pro-

vision, a state must guarantee the Secretary that,

such individuals who are determined to be likely to

require the level of care provided in a skilled nursing

facility or intermediate care facility are informed of

the feasible alternatives to the provision of skilled

nursing facility or intermediate care facility services,

which such individuals may choose if available

under the waiver.

(Emphases added.)

[5] Based on the plain and precise language used in the

statute, we conclude that Congress intended for the free

choice provisions to confer upon the plaintiffs here — Medic-

aid recipients who qualify for HCBS — private rights that can

be enforced via § 1983. First, both provisions twice use the

word “individuals,” and thus are “ ‘phrased in terms of the

persons benefited.’ ” See Gonzaga, 536 U.S. at 284 (quoting

Cannon, 441 U.S. at 692 n.13). Moreover, neither provision

uses the word “individuals” simply in passing. Instead, both

are constructed in such a way as to stress that these “individu-

als” have two explicitly identified rights — (a) the right to be

informed of alternatives to traditional, long-term institutional

care, and (b) the right to choose among those alternatives. The

statutory provisions are, in other words, “concerned with

‘whether the needs of any particular person have been satis-

fied,’ ” not solely with an aggregate “institutional policy and

practice.” Id. at 288 (quoting Blessing, 520 U.S. at 343).

Second, our initial assessment of §§ 1396n(c)(2)(C) and

(d)(2)(C) is strengthened when we compare the text of these

8590 BALL v. RODGERS

two statutory provisions with the text of other Medicaid Act

provisions that have been construed as conferring rights

enforceable under § 1983. In each of those cases, the courts’

analyses — like ours here — stressed that the statutes all pre-

scribed rights owed to “individuals” or “eligible individuals,”

explicitly identified as such. While express use of the term

“individuals” (or “persons” or similar terms) is not essential

to finding a right for § 1983 purposes, usually such use is suf-

ficient for that purpose.

In Watson v. Weeks, for instance, this circuit joined five

federal circuits in holding that § 1396a(a)(10) satisfies the

Blessing-Gonzaga standard. See 436 F.3d 1152, 1155, 1159-

62 (9th Cir. 2006), cert. denied sub nom. Goldberg v. Watson,

127 S. Ct. 598 (Mem.) (2006). In relevant part,

§ 1396a(a)(10) provides that “[a] State plan for medical assis-

tance must . . . provide . . . for making medical assistance

available, . . . to . . . all [eligible] individuals . . . .” Our analy-

sis in Watson was largely driven by the fact that the statute’s

“relevant phrase” assures “medical assistance available . . . to

all individuals.” Id. at 1160. “This language,” we held, “is

unmistakably focused on the specific individuals benefited.”

Id. (comparing the language of § 1396a(a)(10) to the statutory

language at issue in Price, where this circuit held that a fed-

eral law mandating that “[e]ach grantee shall provide for rea-

sonable benefits to any person” demonstrated “a clear intent”

on the part of Congress “to create a federal right” (Id., citing

Price, 390 F.3d at 1111)).

Watson’s analysis was influenced, in part, by the Third Cir-

cuit’s decision in Sabree ex rel. Sabree v. Richman, 367 F.3d

180 (3d Cir. 2004), so we consider that decision as well. See

Watson, 436 F.3d at 1160 (relying on Sabree). In addition to

§ 1396a(a)(10), Sabree involved two other Medicaid Act pro-

visions: (1) § 1396d(a)(15), which requires a state to provide

medical assistance covering intermediate care facilities for the

mentally retarded (“ICF/MR”);19 and (2) § 1396a(a)(8), other-

19

In relevant part, § 1396d(a)(15) provides: “For purposes of this sub-

chapter [§§ 1396 et seq.] . . . [t]he term ‘medical assistance’ means pay-

BALL v. RODGERS 8591

wise known as the Medicaid Act’s “reasonable promptness pro-

vision.”20 In each instance, Sabree concluded, the “individual

focus” of the three provisions was “unmistakable,” given that

each “enumerate[s] the entitlements available to ‘all eligible

individuals’ and none “focus on ‘the [entity] . . . regulated

rather than the individuals protected.’ ” Id. at 190 (citing

Alexander, 532 U.S. at 289) (second alteration in original).

See also S.D. ex rel. Dickson v. Hood, 391 F.3d 581, 603 (5th

Cir. 2004) (concluding that § 1396a(a)(10) features “precisely

the sort of ‘rights-creating’ language identified in Gonzaga as

critical to demonstrating a congressional intent to establish a

new right”); Bryson, 308 F.3d at 88-89 (holding that “there is

a § 1983 cause of action arising from . . . § 1396a(a)(8), in

part, because “the statute, on its face, does intend to benefit

plaintiffs” given its use of the term “eligible individuals”).

For analogous reasons, in Harris v. Olszewski, 442 F.3d

456 (6th Cir. 2006), the Sixth Circuit held that § 1396a(a)(23)

created individual rights enforceable under § 1983. That Med-

icaid Act provision — which, as we have noted, see supra

note 4, is also referred to as a “freedom of choice” provision

— mandates, in relevant part, that “[a] State plan for medical

assistance must . . . provide that [ ] any individual eligible for

medical assistance . . . may obtain such assistance from any

institution, agency, community pharmacy, or person” quali-

fied to perform such a service. 442 F.3d at 461 (citing

§ 1396a(a)(23)) (emphasis added). “In giving ‘any individual

eligible for medical assistance’ a free choice over the provider

of that assistance,” Harris explained, “the statute uses the

kind of ‘individually focused terminology’ that ‘unambigu-

ment of part or all of the cost of the following care and services . . . for

individuals . . . who are [eligible:] . . . services in an [ICF/MR] . . . .”

20

In relevant part, § 1396a(a)(8) provides: “A State plan for medical

assistance must . . . provide that all individuals wishing to make applica-

tion for medical assistance under the plan shall have opportunity to do so,

and that such assistance shall be furnished with reasonable promptness to

all eligible individuals.” (Emphases added.)

8592 BALL v. RODGERS

ously confer[s]’ an ‘individual entitlement’ under the law.” Id.

(quoting Gonzaga, 536 U.S. at 283, 287).

[6] The upshot is that, like the language of §§ 1396a(a)(8),

1396a(a)(10), 1396a(a)(23), and 1396d(a)(15), the language

of §§ 1396n(c)(2)(C) and (d)(2)(C) satisfies the “rights-

creating” standard set forth in Gonzaga, and thus clears the

first hurdle of the Blessing framework. As in these other stat-

utes, the free choice provisions are focused on the rights owed

to HCBS-eligible Medicaid recipients, as evinced through

their repeated use of the word “individuals” and their specific

articulation of the entitlements guaranteed — in this instance,

the right to be informed of alternatives to traditional, institu-

tional care and the right to choose from among those options.

C

[7] This conclusion also follows from a comparison of

§§ 1396n(c)(2)(C) and (d)(2)(C) both to other Medicaid Act

provisions that we have held do not create individual rights

enforceable via § 1983, and to the other federal statutes simi-

larly construed in Blessing and Gonzaga. In each of those

cases, the statutes at issue differed from the free choice provi-

sions here in that they do not mention the service recipients,

or refer to them in the aggregate, or refer to them in the con-

text of describing a more general institutional policy or prac-

tice.

In Sanchez, for example, we held that the Medicaid Act’s

equal access provision, § 1396a(a)(30)(A), does not confer

individual rights. We noted that the section’s only “reference

. . . to recipients of Medicaid services is in the aggregate, as

members of ‘the general population in the geographic area,’ ”

416 F.3d at 1059, and further explained that “[t]he statute

speaks not of any individual’s right but of the State’s obliga-

tion to develop ‘methods and procedures’ for providing ser-

vices generally”.21 Id. “A statutory provision that refers to the

21

Under 1396a(a)(30)(A),

A State plan for medical assistance must provide . . . such meth-

BALL v. RODGERS 8593

individual only in the context of describing the necessity of

developing state-wide policies and procedures,” we explained,

“does not reflect a clear Congressional intent” to create indi-

vidual rights enforceable under § 1983. Id.; see also San

Lazaro Ass’n, Inc. v. Connell, 286 F.3d 1088, 1099 (9th Cir.

2002) (holding that § 1396a(a)(5) did not give Medicaid pro-

viders a right of action under § 1983 because it is “a structural

programmatic requirement that facilitates federal oversight of

state Medicaid programs,” adding that “[t]o the extent there

is a benefit to . . . individuals, it is an indirect one”);22 Watson,

436 F.3d at 1162 (explaining that § 1396a(a)(17), unlike

§ 1396a(a)(10), “is not framed in terms of the individuals ben-

efited” and is focused on “aggregate impact, rather than on

the benefits to individuals”).23

Any concern for individual children and custodial parents

was found to be similarly sidelined in the “substantial compli-

ance” requirement of Title IV-D of the Social Security Act

discussed in Blessing. 520 U.S. at 343-44. This requirement,

the Court wrote, was “designed only to guide the State in

structuring its systemwide efforts at enforcing support obliga-

ods and procedures relating to the utilization of, and the payment

for, care and services available under the plan . . . as may be nec-

essary to safeguard against unnecessary utilization of such care

and services and to assure that payments are consistent with effi-

ciency, 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 avail-

able to the general population in the geographic area.

(Emphasis added).

22

Under § 1396a(a)(5), a participating state must “provide for the estab-

lishment or designation of a single State agency to administer or to super-

vise the administration of the [State’s] plan.”

23

Under § 1396a(a)(17), a state plan for medical assistance “must . . .

include reasonable standards (which shall be comparable for all groups

. . .) for determining eligibility for and the extent of medical assistance

under the plan.”

8594 BALL v. RODGERS

tions,” not to provide rights to individual beneficiaries. Id. at

344; see also id. at 343 (explaining that the statute served as

“simply a yardstick for the Secretary [of Health and Human

Services] to measure the systemwide performance of State’s

Title IV-D program”) (emphasis in original). That much was

clear, the Court found, given that a state’s failure to “substan-

tially comply” would never lead the Secretary of Health and

Human Services to “command the State to take any particular

action or to provide any services to certain individuals.” Id. at

344. Instead, such a failure would “simply . . . trigger penalty

provisions that increase the frequency of audits and reduce the

state’s [federal] grant.” Id. In other words, although the “sub-

stantial compliance” requirement conceivably benefited indi-

vidual plaintiffs in an indirect fashion — for example, by

giving states financial incentives to try and adhere to federal

directives — this type of impact was not enough to compel

the conclusion that Congress intended for Title IV-D’s “sub-

stantial compliance” requirement to create rights enforceable

via § 1983. Id.

The same is true in Gonzaga. There the Court interpreted

FERPA’s nondisclosure provisions as only indirectly benefit-

ing individual plaintiffs. Although the statute referenced both

“students” and “parents,” see 536 U.S. at 279 (quoting 20

U.S.C. § 1232g(b)(1)),24 the Court concluded that neither class

of potential plaintiffs was the statute’s focal point, id. at 287-

88. Instead, as the Court explained, the FERPA provision was

far more concerned with Congress’s directive that the Secre-

tary of Education not release federal funds to any “educa-

24

Under 20 U.S.C. § 1232g(b)(1),

No funds shall be made available under any applicable program

to any educational agency or institution which has a policy or

practice of permitting the release of education records (or person-

ally identifiable information contained therein . . .) of students

without the written consent of their parents to any individual,

agency, or organization. . . .

(Emphases added.)

BALL v. RODGERS 8595

tional agency or institution” with a particular “policy or

practice” — namely, the policy or practice of releasing stu-

dents’ educational records without the consent of their par-

ents. Id. at 287; see also id. at 289-90 (detailing the

Secretary’s role in dealing with violations of the FERPA pro-

vision). Thus, while students and parents as groups might be

considered indirect beneficiaries of the regulatory scheme, the

statute required only a general “policy” or “practice,” not

compliance in individual instances Id. (explaining that the

statute’s “focus is two steps removed from the interests of

individual students and parents”).

When set alongside the statutes at issue in cases like San-

chez, Blessing, and Gonzaga, the free choice provisions

involved in this appeal stand apart in every relevant respect.

Unlike the “equal access” provision, they are not designed

simply to ensure that entire populations of Medicaid recipi-

ents receive services in the aggregate equivalent to those

received by their non-Medicaid counterparts. Instead, they

seek to guarantee that individual patients are informed of non-

institutional care options and that individual patients retain the

right to make a choice based on this information. And unlike

the plaintiffs seeking to sue under the “substantial compli-

ance” provisions discussed in Blessing and the “policy or

practice” provision in Gonzaga, the HCBS-eligible Medicaid

recipients who comprise the plaintiff-class here are not simply

cogs in a grander statutory scheme. If that were the case, then

Congress would have just enacted a barebones HCBS pro-

gram, one that would have reimbursed states for providing

alternatives to institutional care, and stopped there. There

would have been no need for Congress also to enact provi-

sions mandating that participating states keep each eligible

Medicaid recipient apprised of these non-institutional care

options and afford each the opportunity to choose how to live.

Arizona tries to detract from the individual-oriented nature

of the free choice provisions by arguing that

§§ 1396n(c)(2)(C) and (d)(2)(C) only codify those assurances

8596 BALL v. RODGERS

that it must make as part of its application for an HCBS

waiver. As a result, the state contends, the provisions’ objec-

tive is not to benefit HCBS-eligible Medicaid recipients

directly, but rather to give structure to a state’s HCBS pro-

gram by setting forth specific preconditions for federal fund-

ing. Arizona’s argument fails, however, because Congress has

explicitly legislated that a Medicaid Act provision cannot be

construed as unenforceable under § 1983 “merely because it

requires action under a state plan.” See Watson, 436 F.3d at

1161 (citing S.D., 391 F.3d at 603).

Codified as § 1320a-2, this congressional directive is com-

monly referred to as the “Suter fix” because, through its

enactment Congress overturned an aspect of Suter v. Artist

M., 503 U.S. 347 (1992), that did indeed support the Direc-

tor’s current position. In Suter, the Supreme Court held that

a provision of the Adoption Assistance and Child Welfare

Act, §§ 620-628, did not create an enforceable right under

§ 1983. 503 U.S. at 363. The analysis in Suter emphasized the

fact that the particular provision at issue there, § 671(a)(15),

required a state to compile a sixteen-feature plan and submit

it for approval to the Secretary of Health and Human Ser-

vices, before it could “obtain federal reimbursement.” Suter,

503 U.S. at 358. The statute further dictated that the plan had

to “provide[ ] that, in each case, reasonable efforts will be

made . . . to prevent or eliminate the need for removal of the

child from his home, and . . . to make it possible for the child

to return to his home . . . .” Id. (quoting § 671(a)(15)). Rely-

ing upon this “reasonable efforts” language, Suter concluded

that the statute did “not unambiguously confer an enforceable

right upon the Act’s beneficiaries,” because “the term ‘rea-

sonable efforts’ in this context is at least as plausibly read to

impose only a rather generalized duty on the State, to be

enforced not by private individuals, but by the Secretary in

the manner previously discussed.” Id. at 363.

In direct response to Suter, Congress enacted § 1320a-2,

which provides:

BALL v. RODGERS 8597

In an action brought to enforce a provision of [the

Social Security Chapter of the United States Code],[25]

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., . . .

(Emphasis added.)

Since the adoption of this statute, courts around the country

have relied on it in holding some Medicaid Act rights enforce-

able under § 1983 even where the statute’s “rights-creating”

language is embedded within a requirement that a state file a

plan or that that plan contain specific features.26 The “Suter

fix” requires that we, likewise, reject the Director’s argument

that §§ 1396n(c)(2)(C) and (d)(2)(C) were enacted simply to

set forth a policy or practice upon which the receipt of federal

funds is conditioned.

25

Section 1396n(c)(2)(C) and (d)(2)(C) are provisions under the Social

Security Act, as Medicaid was established in 1965 by Title XIX of the

Social Security Act. See Alexander v. Choate, 469 U.S. 287, 289 n.1

(1985).

26

See, e.g., S.D., 391 F.3d at 603 (concluding that § 1396a(a)(10)(A),

under which a state Medicaid plan must provide specific kinds of medical

assistance, “confers rights enforceable by § 1983,” and explaining that

“[t]he requirement of action under a plan is not . . . dispositive of [that]

question,” given § 1320a-2”); Harris v. James, 127 F.3d 993, 1003 (11th

Cir. 1997) (in case involving Medicaid Act regulations requiring state

Medicaid plans guarantee transportation for recipients to and from provid-

ers, explaining that “in 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”); see also Watson, 436 F.3d at 1160-61 (relying on the court’s

analysis in S.D. regarding the “Suter fix”).

8598 BALL v. RODGERS

To be sure, under §§ 1396n(c)(2)(C) and (d)(2)(C), a state

is required to include certain assurances in its application for

an HCBS waiver. And the statute’s implementing regulations

make clear that a state’s failure to fulfill these assurances can

result in a termination of the HCBS waiver program. See 42

C.F.R. § 441.302 (“Unless the Medicaid agency provides the

following satisfactory assurances to [the Centers for Medicare

& Medicaid Services (“CMS”)],[27] CMS will not grant a

waiver . . . and may terminate a waiver already granted

. . . .”). Yet, the role §§ 1396n(c)(2)(C) and (d)(2)(C) play in

delineating the mandatory contents of a state HCBS plan can-

not detract from or override the otherwise clear “rights-

creating” language Congress used in enacting the free choice

provisions. To do so would be to ignore Congress’s directive

in the “Suter fix” statute that courts abjure reliance on that

consideration.

[8] We therefore hold that §§ 1396n(c)(2)(C) and (d)(2)(C)

demonstrate an unambiguous intent by Congress to confer

rights on individuals in the plaintiff class, thus satisfying the

first prong of the Blessing framework.

D

[9] This conclusion — that, owing to their text and struc-

ture, the free choice provisions satisfy the first prong of the

Blessing test — is further corroborated by a look at the overall

context of the HCBS waiver program. Relevant surrounding

statutes, agency regulations, and legislative history all indi-

cate that Congress enacted the free choice provisions with the

health and welfare of individual Medicaid beneficiaries the

paramount consideration, thereby supporting the conclusion

that Congress intended §§ 1396n(c)(2)(C) and (d)(2)(C) to

provide Medicaid beneficiaries individual rights.

27

CMS is housed within the Department of Health and Human Services.

BALL v. RODGERS 8599

First, §§ 1396n(c)(2)(C) and (d)(2)(C) do not operate in a

vacuum. Instead, under §§ 1396n(c)(2) and (d)(2), a state

must make additional assurances to the Secretary of Health

and Human Services before it can receive an HCBS waiver.

At least two such assurances — like the assurance codified in

§§ 1396n(c)(2)(C) and (d)(2)(C) — focus on the needs of

individual Medicaid beneficiaries. Specifically, under

§ 1396n(c)(2)(B), a state must provide,

with respect to individuals who —

(i) are entitled to medical assistance for

inpatient hospital services, nursing facility

services, or services in an intermediate care

facility under the State plan,

(ii) may require such services, and

(iii) may be eligible for such home or

community-based services under such

waiver,

for an evaluation of the need for inpatient hospital

services, nursing facility services, or services in an

intermediate care facility for the mentally retarded

....

(Emphasis added.) Section 1396n(d)(2)(B) requires states to

make a similar assurance before receiving an HCBS waiver.28

28

Specifically, that provision mandates,

with respect to individuals 65 years of age or older who —

(i) are entitled to medical assistance for skilled nursing or

intermediate care facility services under the State plan,

(ii) may require such services, and

(iii) may be eligible for such home or community-based ser-

vices under such waiver,

the State will provide for an evaluation of the need for such

skilled nursing facility or intermediate care facility services . . .

(Emphasis added.)

8600 BALL v. RODGERS

The provisions’ use of the word “individuals,” in such a direct

and active fashion, strengthens our initial determination that

the notion that Congress intended for at least some of the sub-

sections under §§ 1396n(c)(2) and (d)(2) to confer individual

rights, because they evince “an unmistakable focus on the

benefited class.”29 Gonzaga, 536 U.S. at 284 (emphasis in

original) (quoting Cannon, 441 U.S. at 691).

Second, the relevant implementing regulations lend addi-

tional support to our conclusion. To begin, 42 C.F.R.

§ 441.302(d) is the regulation that specifically implements

§§ 1396n(c)(2)(C) and (d)(2)(C). See 42 C.F.R. § 441.300

(specifying that this regulatory subpart contains all waiver

requirements); Wood, 33 F.3d at 603. Under § 441.302(d), for

a state to receive an HCBS waiver, it must assure the Secre-

tary of Health and Human Services that

when a recipient is determined to be likely to require

the level of care provided in a hospital, [nursing

facility], or [intermediate care facility for the men-

tally retarded], the recipient or his or her legal repre-

sentative will be —

(1) Informed of any feasible alternatives

available under the waiver; and

(2) Given the choice of either institutional

or home and community-based services.

(Emphases added.) Section 441.302(d) thus mimics the

“rights-creating” language of the statute. See Gonzaga, 536

29

That some of the surrounding provisions are more focused on general

policies and practices than individual Medicaid recipients does not detract

from the conclusion that Congress intended for other provisions codified

under § 1396n to confer individual rights. See Blessing, 520 U.S. at 342

(explaining that the rights “identif[ied] with particularity” can be enforced

under § 1983 even if other provisions of the same statute are concerned

with aggregate policy and may not be enforced under § 1983).

BALL v. RODGERS 8601

U.S. at 287. As explained earlier, although an agency regula-

tion cannot confer an individual right enforceable under

§ 1983, it may still “be relevant in determining the scope of

the right conferred by Congress” and “Congress’s intent.” See

Save Our Valley, 335 F.3d at 943 (citing S. Camden Citizens

in Action, 274 F.3d at 783); Price, 390 F.3d at 1112-13 (stat-

ing that when “[r]ead together” with Section 104(k) of the

Housing and Community Development Act, the correspond-

ing agency regulations “confirm Congress’s intent not only to

impose a plan certification requirement on grantees, but also

to confer upon persons displaced by redevelopment activities

an enforceable entitlement to the specific benefits of such

plans”).

Moreover, that some of the regulations neighboring

§ 441.302(d) are couched in similar, individual-oriented lan-

guage underscores the depth of Congress’s intention. See,

e.g., § 441.302(c)(1) (explaining that a state agency must

guarantee that it will conduct an initial evaluation of individ-

ual recipients’ medical needs); id. § 441.302(c)(2) (explaining

that a state must guarantee that it will conduct “[p]eriodic

reevaluations . . . . at least annually, of each recipient receiv-

ing [HCBS] to determine if the recipient continues to need the

level of care provided and would, but for the provision of

waiver services, otherwise be institutionalized”).

Finally, the legislative history of §§ 1396n(c)(2)(C) and

(d)(2)(C) highlights the fact that Congress’s main concern

when enacting the free choice provisions was the health and

welfare of individual Medicaid recipients, not any potential

cost-savings that might result from a shift away from institu-

tionalization. This is a critical point. True, at least some of the

subsections under §§ 1396n(c)(2) and (d)(2) “were obviously

designed to save the government money.” See Wood, 33 F.3d

at 607-08 (citing § 1396n(c)(2)(D) as “providing that home

care costs may not exceed the cost of institutional care”).30

30

Specifically, under § 1396n(c)(2)(D), a state must guarantee that

under such waiver the average per capita expenditure estimated

8602 BALL v. RODGERS

There is also a statutory provision mandating fiscal responsi-

bility. See §§ 1396n(c)(2)(A), (d)(2)(A) (requiring that states

guarantee that “necessary safeguards . . . have been taken . . .

to assure financial accountability for funds expended with

respect to [HCBS]”). Yet, although Congress was quite aware

that HCBS might “have a long range and significant impact

on the size of states’ Medicaid budgets,” legislators were ada-

mant that “[t]he determination of which long-term care

options are feasible in a particular instance should be based on

an individual’s needs, as determined by an evaluation, and

not short-term cost-savings.” H.R. REP. 97-208, at 966 (1981)

(Conf. Rep.), as reprinted in 1981 U.S.C.C.A.N. 1010, 1328

(emphasis added); see also id. (explaining that through the

adoption of the HCBS waiver program, “the integrity of

patient choice should be preserved”); S. REP. 97-139, at 747-

48 (1981) (acknowledging that “certain cost savings may

result,” but stressing that “[a] waiver cannot be granted unless

the state provides assurances satisfactory to the Secretary that

necessary safeguards have been taken to protect the health

and welfare of any of the recipients of such services” (empha-

sis added)).

The result of our examination of the overall context of the

HCBS waiver program, including the relevant statutes, imple-

menting regulations, and legislative history, underscores our

initial text-based view that Congress consciously used “ex-

plicit rights-creating terms” when enacting Medicaid Act’s

free choice provisions. See Gonzaga, 536 U.S. at 283-84. In

light of this additional, corroborative analysis, we reiterate our

earlier holding — namely, that Congress intended

§§ 1396n(c)(2)(C) and (d)(2)(C) to “create a federal right,”

by the State in any fiscal year for medical assistance provided

with respect to such individuals does not exceed 100 percent of

the average per capita expenditure that the State reasonably esti-

mates would have been made in that fiscal year for expenditures

under the State plan for such individuals if the waiver had not

been granted.

BALL v. RODGERS 8603

and that the two provisions thus satisfy the first prong of the

Blessing framework. Id. at 283 (emphasis omitted).

E

Our analysis cannot, however, end there. We must consider

whether §§ 1396n(c)(2)(C) and (d)(2)(C) also satisfy the

Blessing framework’s second and third prongs.

[10] Under the framework’s second factor, a plaintiff must

“demonstrate that the right assertedly protected by the statute

is not so ‘vague and amorphous’ that its enforcement would

strain judicial competence.” 520 U.S. at 340-41. The “free

choice” provisions before us easily satisfy this standard.

Those provisions set forth explicit rights — again, the right to

be informed of alternatives to institutional care and the right

to choose from among those alternatives. A court can readily

determine whether a state is fulfilling these statutory obliga-

tions by looking to sources such as a state’s Medicaid plan,

agency records and documents, and the testimony of Medic-

aid recipients and providers. Cf. Harris, 442 F.3d at 462

(holding that § 1396a(a)(23), the “freedom of choice” provi-

sion, satisfies the second Blessing prong, because “[w]hether

a state plan provides an individual with the choice specified

in the provision is likely to be readily apparent”).

This is not a situation, in other words, like that presented

in Sanchez. There, we concluded that “[t]he language of [the

equal access provision] [was] . . . ill-suited to judicial reme-

dy,” because the “interpretation and balancing of the statute’s

indeterminate and competing goals would involve making

policy decisions for which [a] court has little expertise and

even less authority.” 416 F.3d at 1060. Although

§ 1396a(a)(30)(A) would require a court to account for

numerous, largely unquantifiable variables — “efficiency,

economy, and quality of care” — the rights at issue here are

far more straightforward. We are confident that a court could

capably ensure the enforcement of these two statutes, and

8604 BALL v. RODGERS

therefore conclude that §§ 1396n(c)(2)(C) and (d)(2)(C) sat-

isfy the second prong of the Blessing framework.

Arizona contends otherwise, maintaining that the rights

conferred by §§ 1396n(c)(2)(C) and (d)(2)(C) are, indeed, too

“vague and amorphous” for a court to administer effectively.

As construed by the Medicaid beneficiaries, the state sug-

gests, the free choice provisions would require a court to

assess the “particular quality, quantity, consistency, or fre-

quency” of a state’s HCBS waiver program. As a result, it

argues, the requirements established by §§ 1396n(c)(2)(C)

and (d)(2)(C) are no more readily ascertainable than those

traceable to § 1396a(a)(30)(A).

This argument, however, is inapposite to our present

inquiry. That rights enforceable under § 1983 cannot be

excessively vague and amorphous may ultimately have an

impact on any merits analysis under §§ 1396n(c)(2)(C) and

(d)(2)(C). If the Medicaid beneficiaries indeed seek to inter-

pret their rights under the “free choice” provisions so expan-

sively that they truly become “vague and amorphous,” their

cause of action may fail on the merits. For, in that event, the

Medicaid beneficiaries will not be able to show that Arizona

violated their rights enforceable under § 1983. The cause of

action should not fail at the threshold, however, on the

grounds that on any interpretation of the “free choice” provi-

sions, the individual rights established are too “vague and

amorphous” for a court to enforce.

In that same vein, Arizona points to a recent Tenth Circuit

decision, in which that court wrote — in language that the

state recognizes is dicta — that although Colorado’s HCBS

waiver application “suggests that a developmentally disabled

person will have a choice between an ICF/MR and HCBS, it

does not assign to the State, or any other party, the responsi-

bility to ensure that such facilities are in fact available.” See

Mandy R. ex rel. Mr. and Mrs. R. v. Owens, 464 F.3d 1139,

1145 (10th Cir. 2006) (so stating in the context of deciding

BALL v. RODGERS 8605

whether the state violated §§ 1396a(a)(8) and (a)(10)(B)(i)).

Although Arizona appears to rely on this statement from

Mandy R. to support its argument that the “free choice” provi-

sions confer no individual rights enforceable under § 1983,

the statement — at best — speaks to what constitutes a sub-

stantive violation of §§ 1396n(c)(2)(C) and (d)(2)(C), an issue

we do not address.

[11] The final Blessing factor — whether “the statute . . .

unambiguously impose[s] a binding obligation on the States,”

520 U.S. at 347 — is perhaps most obviously met by the free

choice provisions. Under §§ 1396n(c)(2) and (d)(2), a state

must make certain assurances to the Secretary of Health and

Human Services to obtain an HCBS waiver. See, e.g.,

§ 1396n(c)(2) (“A waiver shall not be granted . . . unless the

State provides assurances . . . that . . . .”) (emphasis added).

The Director argues that these assurances are only precatory,

given the overall optional nature of the HCBS waiver pro-

gram. Nothing in the Medicaid Act, after all, requires a state

to make non-institutional care options available to its recipi-

ents. The fact remains, however, that once a state does elect

a HCBS waiver, it is bound to provide its HCBS-eligible

patient population with specific rights and services, among

them those included in §§ 1396n(c)(2)(C) and (D)(2)(C). The

third prong of the Blessing framework is thus satisfied.

F

[12] Having satisfied all three prongs of the Blessing

framework, the Medicaid beneficiaries’ rights under

§§ 1396n(c)(2)(C) and (d)(2)(C) are “presumptively enforce-

able by § 1983,” subject only to a showing by the state that

“Congress ‘specifically foreclosed a remedy under § 1983.’ ”

Gonzaga, 536 U.S. at 284 & n.4 (citing Smith v. Robinson,

468 U.S. 992, 1004-05, 1005 n.9 (1984)). A state can meet

this burden by “demonstrat[ing] that Congress shut the door

to private enforcement either expressly, through ‘specific evi-

dence from the statute itself,’ . . . or ‘impliedly, by creating

8606 BALL v. RODGERS

a comprehensive enforcement scheme that is incompatible

with individual enforcement under § 1983.’ ” Id. at 284 n.4

(citing Wright, 479 U.S. at 423; Blessing, 520 U.S. at 341;

and Sea Clammers, 453 U.S. at 20); see also City of Rancho

Palos Verdes v. Abrams, 544 U.S. 113, 121-22 (2005)

(describing the few instances in which the Court has found

§ 1983 not available “to remedy violations of federal statutory

rights,” because it found “the existence of more restrictive

remedies . . . in the violated statute itself”).

[13] Arizona has not attempted to rebut the presumption

that the Medicaid beneficiaries’ rights under

§§ 1396n(c)(2)(C) and (d)(2)(C) are enforceable via § 1983.

And with good reason. In Blessing, the Supreme Court made

clear that the power of “the Secretary of Health and Human

Services . . . to reject state Medicaid plans or to withhold fed-

eral funding to States whose plans did not comply with fed-

eral law” cannot foreclose a § 1983 remedy. 520 U.S. 347-48

(citing Wilder, 496 U.S. at 521, 523); see also Harris, 442

F.3d at 463 (holding that the fact “[t]hat the Federal Govern-

ment may withhold federal funds to non-complying States is

not inconsistent with private enforcement,” and citing Wilder,

496 U.S. at 521-22, for the proposition that “although the

Medicaid Act ‘authorizes the Secretary to . . . curtail federal

funds to States whose plans are not in compliance with the

Act, . . . [t]his administrative scheme cannot be considered

sufficiently comprehensive to demonstrate a congressional

intent to withdraw the private remedy of § 1983”). As no rem-

edy for the enforcement of §§ 1396n(c)(2)(C) and (d)(2)(C),

other than withholding federal funds, has been brought to our

attention by the parties, we cannot foreclose a § 1983 remedy.

****

[14] In light of the foregoing analysis, we conclude that the

Medicaid beneficiaries enjoy “unambiguously conferred”

individual rights under §§ 1396n(c)(2)(C) and (d)(2)(C) and

BALL v. RODGERS 8607

that those rights can be properly enforced through a § 1983

cause of action.

V

[15] Having decided that §§ 1396n(c)(2)(C) and (d)(2)(C)

provide a right of action under which Medicaid beneficiaries

can protect their individual rights, we now remand the matter

to the district court so that it can: (1) if appropriate, make a

factual determination as to which federal statutes apply in this

case;31 (2) have the opportunity to decide whether there are

other legal bases upon which to grant the Medicaid beneficia-

ries relief; and (3) amend the terms of the current injunction

as needed.

(1) In a supplemental brief filed after argument, Arizona

for the first time contends that the Medicaid beneficiaries’ suit

cannot go forward under the Medicaid Act’s free choice pro-

visions because, as a factual matter, Arizona’s waiver pro-

gram, permitting home- and community-based care, was

actually authorized under a different federal statute — 42

U.S.C. § 1315 of the Social Security Act. As a result, Arizona

maintains, it is not bound to comply with any provision of

§ 1396n, including the free choice requirements.32 In

response, the Medicaid beneficiaries argue that even if § 1315

serves as the statutory basis for Arizona’s HCBS waiver pro-

gram, the state is still bound to comply with various provi-

sions of the Medicaid Act, including §§ 1396n(c)(2)(C) and

(d)(2)(C). In the alternative, the Medicaid beneficiaries argue

that the Director long ago waived the opportunity to argue

31

This question is separate and apart from the district court’s findings

that Arizona violated the free choice provisions. Here, we simply ask the

district court to make a factual determination, if appropriate, regarding the

statutory basis for Arizona’s waiver program to apply in this case.

32

Section 1396n does not include the “equal access” provision, which

is codified under § 1396a. That is why, presumably, Arizona never pro-

tested that it is not covered by the “equal access” provision.

8608 BALL v. RODGERS

that §§ 1396n(c)(2)(C) and (d)(2)(C) are not the relevant stat-

utes, as the case proceeded through seven years of litigation,

including a trial that covered the free choice provisions,

before the contention was raised. Both parties have attempted

to support their arguments by submitting, along with their

supplemental briefs, numerous documents that are not part of

the district court record. We cannot consider these documents,

and so cannot possibly decide the late-blooming dispute over

whether the § 1396n requirements apply to Arizona. See

Lowry v. Barnhart, 329 F.3d 1019, 1024 (9th Cir. 2002)

(explaining that appellate courts generally will consider only

those facts and documents that have been preserved in the dis-

trict court record).

On remand, the district court should consider, first,

whether, the state is entitled at this late juncture to oppose the

free choice cause of action on the ground that § 1396n does

not apply to Arizona. The district court is better positioned

than we are to make that determination, as it is fully familiar

with the course of this litigation.

Second, if it concludes that the issue may be raised, the dis-

trict court must make a factual determination regarding

whether Arizona’s HCBS waiver program is, in fact, autho-

rized under § 1315. Third, even if § 1315 proves to be the

program’s statutory basis, the district court must separately

determine whether Arizona is nevertheless bound to comply

with §§ 1396n(c)(2)(C) and/or (d)(2)(C) as a condition of

receiving federal funds under § 1315, as the Medicaid benefi-

ciaries maintain.

(2) On remand, the district court should also revisit the

Medicaid beneficiaries’ ADA and Rehabilitation Act claims,

the two claims that survived summary judgment and were liti-

gated during the bench trial but which the district court did

not address in its final judgment. The district court should

BALL v. RODGERS 8609

determine whether Arizona violated those statutes in its

administration of the HCBS program.33

The district court need not, however, revisit the Medicaid

beneficiaries’ claims under § 1396a(a)(8), the Medicaid Act’s

“reasonable promptness” provision, or 42 C.F.R.

§ 435.930(b), a Medicaid Act regulation mandating that Med-

icaid, and emergency care, be furnished continuously and

without administrative delays, unless a recipient becomes

ineligible. The district court granted Arizona’s cross-motion

for summary judgment on these claims, and the Medicaid

beneficiaries never appealed that decision. Although they now

ask us to affirm the district court’s judgment on these

grounds, arguing that we have “the power to affirm the judg-

ment below on any basis found in the record,” we may not do

so, as the issues were not properly raised on appeal.

The Medicaid beneficiaries correctly assert that “arguments

that support the judgment as entered can be made without a

cross-appeal,” although “a cross-appeal is required to support

modification of the judgment.” See Engleson v. Burlington N.

R.R. Co., 972 F.2d 1038, 1041 (9th Cir. 1992) (emphasis

added) (quoting C. WRIGHT, A. MILLER, AND E. COPPER, 15A

FEDERAL PRACTICE AND PROCEDURE § 3904, 195-96 (1992)

(internal quotation marks omitted)). Here we could not, for

two reasons, affirm the judgment as entered on the ground

that there was a “reasonable promptness” or gap in service

violation.

33

The Medicaid beneficiaries have asked us to affirm the district court’s

judgment on either of these grounds as part of the current appeal and

based on the record now before us. We decline to do so. We must remand

the matter to the district court for a resolution of the question whether Ari-

zona is bound to comply with the free choice provisions. The district

court will then have the opportunity to make the requisite findings of fact

and conclusions of law related to the ADA and/or the Rehabilitation Act

claims. See FED. R. CIV. PRO. 52.

8610 BALL v. RODGERS

First, were we to affirm the district court on the grounds on

which Arizona was granted summary judgment, the terms of

the injunction would certainly have to be modified, as the

injunction was tailored to remedy a violation of wholly differ-

ent statutes — § 1396a(a)(30)(A) and §§ 1396n(c)(2)(C) and

1396n(d)(2)(C). See Lewis v. Casey, 518 U.S. 343, 360 (1996)

(“The scope of injunctive relief is dictated by the extent of the

violation established” (internal quotation marks omitted);

Gomez v. Vernon, 255 F.3d 1118, 1130 (9th Cir. 2001)

(explaining that the court’s “exercise of equitable discretion”

in crafting an injunction must “heel[ ] close to the identified

violation”) (quoting Gilmore v. People of the State of Califor-

nia, 220 F.3d 987, 1005 (9th Cir. 2000)). As we could not

simply affirm the judgment on the grounds plaintiff suggests,

we may not reach these issues in the absence of a cross-

appeal.

Moreover, even if we assume that the Medicaid beneficia-

ries presented sufficient evidence during the bench trial to

support a judgment that Arizona violated § 1396a(a)(8) and

42 C.F.R. § 435.930(b)—which there is no reason they would

have, as the issues had been finally resolved against them—

the state never had reason to defend against these claims at

the bench trial, given its victory at the summary-judgment

stage. It would be inequitable to affirm the district court on

the basis of an inapposite record. The most we could do as to

these causes of action, consequently, would be to reverse the

denial of summary judgment to Arizona, not affirm the grant

of judgment after trial to the Medicaid beneficiaries. The

Medicaid beneficiaries have not asked for such limited relief,

nor could that relief support the “judgment as entered.” Engle-

son, 972 F.2d at 1041. For this reason as well, we cannot dis-

turb the grant of summary judgment to Arizona in the absence

of a cross-appeal.

(3) On remand, and assuming that the district court holds

that Arizona violated the free choice provisions, the ADA, or

the Rehabilitation Act, the district court will have to modify

BALL v. RODGERS 8611

the terms of its injunction pursuant to a number of different

considerations. Primarily, the injunction will have to be re-

designed to reflect the fact that Arizona can no longer be held

liable under § 1396a(a)(30)(A). Because the injunction

remains in this state of flux, we do not address at this time the

state’s argument that the injunctive relief originally ordered

by the district court was improper because it failed to account

for more recent reforms undertaken by the state to improve its

HCBS program. Any such review would be premature.34

VI

In conclusion, we reverse the district court’s decision that

Arizona violated § 1396a(a)(30)(A), the Medicaid Act’s equal

access provision, pursuant to our circuit’s decision in Sanchez

v. Johnson, 416 F.3d at 1060. We hold that §§ 1396n(c)(2)(C)

and (d)(2)(C), the Medicaid Act’s free choice provisions, con-

fer upon the Medicaid beneficiaries individual rights that can

be enforced under § 1983. We remand, however, to the dis-

trict court to determine, if appropriate, which statutes and reg-

ulations apply to the program. On remand, the district court

must address whether Arizona’s contention that it is not

bound to comply with the free choice provisions has been

waived; if not, it must decide that issue; make any appropriate

findings of fact and conclusions of law with respect to the

Medicaid beneficiaries’ ADA and Rehabilitation Act claims;

and modify the terms of its injunction, if any, to accord with

any statutory or regulatory violations found on remand.

34

We briefly address one last aspect of this matter — namely, the dis-

trict court’s decision to deny the state’s motion for a new trial. We review

for abuse of discretion. See De Saracho v. Custom Food Mach., Inc., 206

F.3d 874, 880 (9th Cir. 2000). The district court decided that its injunction

already accounted for the improvements in the state Medicaid program

that Arizona wished to bring to its attention. Further, it found that the state

was itself responsible for any evidentiary gaps due to Arizona’s opposition

to extending the discovery deadline. Denial of the motion for a new trial

on these grounds was not an abuse of discretion.

8612 BALL v. RODGERS

REVERSED IN PART; AFFIRMED IN PART;

REMANDED.

The parties shall bear equal shares of the costs on appeal.