Doe v. Chiles

United States Court of Appeals,

Eleventh Circuit.

No. 96-5144.

John/Jane DOE, 1-13 by and through Mr./Mrs. DOE Sr. No.'s 1-13 as natural guardians on

behalf of John/Jane Doe 1-13 and on behalf of those similarly situated, Florida Association of

Rehabilitation Facilities Incorporated, A Not-For-Profit Association, United Cerebral Palsy of

Florida, Incorporated, A Florida Not-for-Profit Corporation, Plaintiffs-Appellees,

v.

Lawton CHILES, in his official capacity as Governor of the State of Florida, Robert Williams,

individually and in his official capacity as Secretary of the Department of Health & Rehabilitative

Services of the State of Florida, Gary Clarke, individually and in his official capacity as Assistant

Secretary for Medicaid, Department of Health & Rehabilitative Services of the State of Florida,

Charles Kimber, in his official capacity as Assistant Secretary for Developmental Services of the

Department of Health & Rehabilitative Services, State of Florida, Secretary of the Department of

Health and Rehabilitative Services, Edward A. Feaver, in his official capacity, Defendants-

Appellants.

Feb. 26, 1998.

Appeal from the United States District Court for the Southern District of Florida. (NO. 92-589-CIV-

FERGUSON), Wilkie D. Ferguson, Jr., Judge.

Before HATCHETT, Chief Judge, BARKETT, Circuit Judge, and PROPST*, Senior District Judge.

HATCHETT, Chief Judge:

In this action based on 42 U.S.C. § 1983, the district court found that officials of the Florida

Department of Health and Rehabilitative Services were failing to furnish Medicaid assistance with

"reasonable promptness" to eligible developmentally disabled individuals, and thus were violating

a provision of the Medicaid Act, 42 U.S.C. § 1396(a)(8)1 Thereafter, the court enjoined the officials

*

Honorable Robert B. Propst, Senior U.S. District Judge for the Northern District of Alabama,

sitting by designation.

1

In 1996, the Florida Legislature redesignated the Department of Health and Rehabilitative

Services as the Department of Children and Family Services and established a separate

Department of Health. See Fla. Stat. Ann. §§ 20.19, 20.43 (West Supp.1998).

from failing to provide the assistance within a "reasonable" time period, not to exceed ninety days.

The officials appeal, and, for the reasons stated herein, we affirm the judgment of the district court.

I. BACKGROUND

In March 1992, the plaintiffs-appellees—Medicaid-eligible, developmentally disabled (i.e.,

mentally retarded) individuals who had been placed on waiting lists for entry into intermediate care

facilities for the developmentally disabled ("ICF/DD" or "ICF/MR")—instituted this lawsuit

pursuant to section 1983, claiming that the defendants-appellants were causing unreasonable delays

regarding the provision of ICF/DD services in violation of section 1396a(a)(8) and the Fifth and

Fourteenth Amendments to the United States Constitution. The appellees' class-action complaint

alleged that they were not "receiving the therapies, training and other active treatment to which they

are entitled by virtue of [their] eligibility for a residential placement in an [ICF]." The complaint

further averred that most of the appellees had been waiting for "over five years" for Medicaid

services and were "languish[ing] without the training and therapies they so desperately need."2 The

appellants do not contest that serious delays have occurred. In fact, in their initial brief to this court,

2

Under the ICF/DD program:

Each client must receive a continuous active treatment program, which includes

aggressive, consistent implementation of a program of specialized and generic

training, treatment, health services and related services ..., that is directed

toward—

(i) The acquisition of the behaviors necessary for the client to function with as

much self determination and independence as possible; and

(ii) The prevention or deceleration of regression or loss of current optimal

functional status.

42 C.F.R. § 483.440(a)(1)(i)-(ii)(1996). The ICF/DD program is restricted to individuals

with sufficiently severe mental retardation and related conditions. It is not designed for

"generally independent clients who are able to function with little supervision or in the

absence of a continuous active treatment program." 42 C.F.R. § 483.440(a)(2)(1996).

they acknowledge that their practices "resulted in waiting periods of several years."3 The appellees

sought injunctive, declaratory and incidental monetary relief.

Amidst extended pre-trial proceedings, the appellees moved for class certification, and both

sides moved for summary judgment.4 On July 22, 1996, the district court granted the appellees

summary judgment, holding:

Section 1396a(a)(8) of the Medicaid [A]ct, specifically the reasonable promptness

clause, is enforceable under 42 U.S.C. § 1983. "Medical assistance under the plan" has been

defined as medical services. The [S]tate is obliged to furnish medical services, however,

only to the extent that such placements are offered in the Federal Health Care Financing

Agency ("HCFA") approved State plan. Once a state elects to provide a service, that service

becomes part of the state Medicaid plan and is subject to the requirements of Federal law.

At oral argument on this issue, Defendants conceded that Florida's [HCFA] State

approved plan does provide for placement in ICF/MR facilities. Further, Defendants have

not disputed the facts alleging the [S]tate's failure to conform with the provisions set forth

in that statute, which the Court construes as an admission of unreasonable delays in placing

developmentally disabled persons into ICF/MR facilities.

(Citations and footnote omitted.)5

On August 26, 1996, a magistrate judge signed a report recommending that the district court

grant the appellees' motion to certify as a class "all those developmentally disabled persons who

have not received prompt [ICF/DD] placement." After conducting a hearing on August 28, 1996,

the district court entered final judgment that day, ordering that the appellants "shall, within 60 days

of the date of this Order, establish within the State's Medicaid Plan a reasonable waiting list time

period, not to exceed ninety days, for individuals who are eligible for placement in ICF/DD."

3

See also Appellants' Reply Br. at 2 (appellants "did not dispute the occurrence and length of

delays").

4

In December 1992, the district court dismissed defendant Lawton Chiles, the Governor of

Florida, and the organizational plaintiffs, the Florida Association of Rehabilitation Facilities, Inc.

and United Cerebral Palsy of Florida, Inc., from this lawsuit.

5

The court did not reach the appellees' constitutional claims.

On September 3, 1996, the appellants filed their notice of appeal.6 On January 6, 1997, the

district court denied the appellants' emergency motion to stay the final judgment pending appeal.

On January 29, 1997, this court ordered an expedited briefing schedule; denied the appellants'

emergency motion for a stay pending appeal as to the named appellees; and granted the appellants'

emergency motion for a stay pending appeal as to relief for putative class members.

II. CONTENTIONS

The appellants challenge the district court's determination as to liability on four grounds.

According to the appellants: (1) the appellees lack standing to bring this lawsuit; (2) recipients of

Medicaid services cannot assert a cause of action under section 1396a(a)(8); (3) section 1396a(a)(8)

does not give rise to a federal right enforceable under section 1983; and (4) the Eleventh

Amendment bars this action. The appellants also contend that the district court abused its discretion

in rendering the injunctive relief it imposed.

We find the appellants' standing argument meritless and unworthy of further discourse.7

6

Subsequent to the filing of the notice of appeal, the district court denied the monetary claims

the appellees had pressed against appellants Robert Williams and Gary Clarke.

7

The crux of the appellants' standing claim is that the appellees have not demonstrated any

injury resulting from the appellants' failure to provide Medicaid services in a timely manner.

The district court described this argument as "frivolous," and the appellants' counsel only raised

it in passing during oral argument before this court. We agree with the district court that the

record reveals "a plethora of facts showing the harm caused to developmentally disabled persons

by the State of Florida's current procedure which allows eligible Medicaid recipients who have

been determined to be in need of ICF/DD services to be placed on indefinite waiting lists."

The plight of appellee Jane Doe 6 is illustrative. Jane is approximately thirty-nine

years of age and lives at home with her parents, who are in their mid-to-late seventies and

have significant health problems. Jane is severely retarded and has Downs Syndrome.

She can walk but, for the most part, cannot talk, and she is totally dependent upon others

for all of her daily life activities. Jane has been waiting for about ten years for ICF/DD

services. The uncontroverted evidence reveals that Jane's failure to receive these services

in anything approaching a timely fashion has caused her to lose several skills and fail to

develop others. As to the future, Kathy Whitaker, a qualified mental retardation

Accordingly, part A of the discussion section below addresses the appellants' statutory arguments

as to liability; part B assesses the appellants' Eleventh Amendment claim; and part C addresses the

appellants' contentions regarding the injunctive relief the district court rendered.

III. STANDARDS OF REVIEW

We review a district court's conclusions of law de novo. DeKalb County Sch. Dist. v.

Schrenko, 109 F.3d 680, 687 (11th Cir.) (per curiam), cert. denied, --- U.S. ----, 118 S.Ct. 601, 139

L.Ed.2d 489 (1997). "We review the district court's grant of injunctive relief for abuse of discretion,

meaning we must affirm unless we at least determine that the district court has made a clear error

of judgment or has applied an incorrect legal standard." SunAmerica Corp. v. Sun Life Assurance

Co. of Canada, 77 F.3d 1325, 1333 (11th Cir.) (internal quotation marks and citations omitted), cert.

denied, --- U.S. ----, 117 S.Ct. 79, 136 L.Ed.2d 37 (1996).

IV. DISCUSSION

A.

Section 1983 imposes liability on anyone who, acting under color of state law, deprives a

person of "any rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C.A.

§ 1983 (West Supp.1997). In Maine v. Thiboutot, 448 U.S. 1, 4-8, 100 S.Ct. 2502, 2504-06, 65

professional who evaluated Jane, concluded as follows:

Future vision of Jane without training indicates a continued lessening of skills, a

lack of motivation, escalated isolation with no opportunities for peer development

and contact, and daily lack of meaningful activities to reduce the ineffectual time

spent simply listening to the radio, music and doing child-like puzzles. Jane is a

person with many, many strengths that will dissolve and are dissolving each day

as she is denied [services].

Whitaker's conclusion went uncontradicted in the district court. "[A] party has standing

to seek injunctive relief ... if the party alleges, and ultimately proves, a real and

immediate ... threat of future injury." Church v. City of Huntsville, 30 F.3d 1332, 1337

(11th Cir.1994).

L.Ed.2d 555 (1980), the Supreme Court held that section 1983 can be used to vindicate violations

of federal statutory rights. See also Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103,

105, 110 S.Ct. 444, 448, 107 L.Ed.2d 420 (1989) ("As the language of the statute plainly indicates,

the remedy encompasses violations of federal statutory as well as constitutional rights."). As the

Court recently made clear in Blessing v. Freestone, --- U.S. ----, ----, 117 S.Ct. 1353, 1359, 137

L.Ed.2d 569 (1997):

In order to seek redress through § 1983, however, a plaintiff must assert the violation of a

federal right, not merely a violation of federal law. We have traditionally looked at three

factors when determining whether a particular statutory provision gives rise to a federal

right. First, Congress must have intended that the provision in question benefit the plaintiff.

Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not

so "vague and amorphous" that its enforcement would strain judicial competence. Third, the

statute must unambiguously impose a binding obligation on the States. In other words, the

provision giving rise to the asserted right must be couched in mandatory rather than

precatory terms.

(Citations omitted.) See also Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 509, 110 S.Ct. 2510,

2517, 110 L.Ed.2d 455 (1990) ("Such an inquiry turns on whether the provision in question was

intended to benefit the putative plaintiff. If so, the provision creates an enforceable right unless it

reflects merely a congressional preference for a certain kind of conduct rather than a binding

obligation on the governmental unit, or unless the interest the plaintiff asserts is too vague and

amorphous such that it is beyond the competence of the judiciary to enforce.") (internal quotation

marks, citations and brackets omitted); Harris v. James, 127 F.3d 993, 999 & n. 7 (11th Cir.1997);

Maynard v. Williams, 72 F.3d 848, 852 (11th Cir.1996). If a statutory provision meets these three

factors, a rebuttable presumption "that the right is enforceable under § 1983" arises. Blessing, at ----,

117 S.Ct. at 1360.8

8

For a detailed discussion of the Supreme Court's case law in this area, see Harris, 127 F.3d at

997-1004. The Harris majority, however, failed to mention Livadas v. Bradshaw, 512 U.S. 107,

114 S.Ct. 2068, 129 L.Ed.2d 93 (1994). In that case, Justice Souter wrote the following for a

"Medicaid is a cooperative federal-state program through which the Federal Government

provides financial assistance to States so that they may furnish medical care to needy individuals."

Wilder, 496 U.S. at 502, 110 S.Ct. at 2513.9 Federal law does not require Florida to provide ICF/DD

services in order to participate in the Medicaid program. See 42 U.S.C.A. § 1396a(a)(10)(C)(iv),

§ 1396a(a)(31) (West Supp.1997); King by King v. Sullivan, 776 F.Supp. 645, 651 (D.R.I.1991) ("A

participating state has the option not to offer ICF-MR services at all."). Florida, however, has

elected to do so. See Fla. Stat. Ann. § 409.904(3) (West Supp.1998). "[W]hen a state elects to

provide an optional service, that service becomes part of the state Medicaid plan and is subject to

the requirements of federal law." Tallahassee Memorial Regional Medical Center v. Cook, 109 F.3d

693, 698 (11th Cir.1997) (per curiam); see also McMillan v. McCrimon, 807 F.Supp. 475, 481-82

(C.D.Ill.1992) ("The fact that the [Home Services Program] is an optional service does not exempt

it from the requirements of section 1396a(a)(8)."). It is undisputed that the federal government

shoulders about fifty-five percent of the costs that Florida incurs in providing ICF/DD services.

unanimous Court:

We have, it is true, recognized that even the broad statutory text [of section 1983]

does not authorize a suit for every alleged violation of federal law. A particular

statutory provision, for example, may be so manifestly precatory that it could not

fairly be read to impose a "binding obligation" on a governmental unit, or its

terms may be so "vague and amorphous" that determining whether a

"deprivation" might have occurred would strain judicial competence. And

Congress itself might make it clear that violation of a statute will not give rise to

liability under § 1983, either by express words or by providing a comprehensive

alternative enforcement scheme. But apart from these exceptional cases, § 1983

remains a generally and presumptively available remedy for claimed violations of

federal law.

Livadas, 512 U.S. at 132-33, 114 S.Ct. at 2083 (citations and brackets omitted).

9

Title XIX of the Social Security Act, commonly known as the Medicaid Act, is codified at

42 U.S.C. §§ 1396-1396v.

Section 1396a(a)(8) reads: "A State plan for medical assistance must ... provide that all

individuals wishing to make application 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." 42 U.S.C.A. § 1396a(a)(8) (West Supp.1997) (emphasis added). A corresponding

regulation provides that the responsible state agency "must," among other things, "[f]urnish

Medicaid promptly to recipients without any delay caused by the agency's administrative

procedures," and "[c]ontinue to furnish Medicaid regularly to all eligible individuals until they are

found to be ineligible." 42 C.F.R. § 435.930(a)-(b) (1996). Another regulation states that "[t]he

agency must establish time standards for determining eligibility and inform the applicant of what

they are." 42 C.F.R. § 435.911(a) (1996). These periods are not to exceed "[n]inety days for

applicants who apply for Medicaid on the basis of disability" or "[f]orty-five days for all other

applicants." 42 C.F.R. § 435.911(a)(1)-(2) (1996). Moreover, the agency "must not use the time

standards" as "a waiting period." 42 C.F.R. § 435.911(e)(1) (1996). It is this panel's task to

determine whether the "reasonable promptness" clause of section 1396a(a)(8) "gives rise to a federal

right."10

Preliminarily, we note that this court's recent decision in Harris v. James did not address the

issue at bar. In Harris, the court decided the "narrow issue" of "whether Medicaid recipients have

a federal right to transportation which may be enforced in an action under § 1983." 127 F.3d at 996.

The right to transportation that the Harris plaintiffs sought to enforce appeared "explicitly not in the

Medicaid Act, but in a federal regulation," 42 C.F.R. § 431.53. 127 F.3d at 1005. The Harris

majority first rejected the notion of "finding enforceable rights in any valid administrative

10

Clearly, the appellees have "identif[ied] with particularity the right[ ] they claim[ ]."

Blessing, at ----, 117 S.Ct. at 1360.

interpretation of a statute that creates some enforceable right." 127 F.3d at 1008. The court then

concluded that the transportation regulation did "not define the content of any specific right

conferred upon the plaintiffs by Congress," and thus its nexus to "Congressional intent to create

federal rights" was "too tenuous to create an enforceable right." 127 F.3d at 1010. The court held

that the plaintiffs had no enforceable rights pursuant to Medicaid Act sections 1396a(a)(1),

1396a(a)(4)(A), or 1396a(a)(19). 127 F.3d at 1010-11. In addition, the court found "no right [to

transportation] under the regulation read in conjunction with" sections 1396a(a)(8), 1396a(a)(10)(B),

or 1396a(a)(23). 127 F.3d at 1011. In so doing, however, the majority made clear that it was not

deciding the issue of whether section 1396a(a)(8) gives rise to a federal right to reasonably prompt

provision of assistance:

It may be that each of these statutes creates some federal right;27 similarly, it may be that

the transportation regulation is a valid interpretation of each of these provisions under

Chevron[, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct.

2778, 81 L.Ed.2d 694 (1984) ]. However, we do not think these two factors, even if we

found both to be true, would add up to a federal right to transportation. In each case the

transportation regulation would be valid not because it reasonably defines the content of

rights created by the statutory provisions, as did the regulation in Wright[ v. City of Roanoke

Redevelopment & Housing Authority, 479 U.S. 418, 107 S.Ct. 766, 93 L.Ed.2d 781 (1987)

], but only because the regulation furthers the broad objectives underlying each statutory

provision. In other words, we do not think that transportation to and from providers is

reasonably understood to be part of the content of a right to prompt provision of assistance,

comparable assistance, or choice among providers. Instead, if the regulation is a valid

interpretation of these provisions, it would be because transportation may be a reasonable

means of ensuring the prompt provision of assistance, comparable assistance, or choice

among providers. Such links to Congressional intent may be sufficient to support the

validity of a regulation; however, we think they are too tenuous to support a conclusion that

Congress has unambiguously conferred upon Medicaid recipients a federal right to

transportation enforceable under section 1983.

127 F.3d at 1011-12.11 In short, the majority opinion in Harris does not dictate a particular outcome

11

In footnote 27, the majority stated that it "assume[d] for the sake of argument only that these

provisions create some federal right." 127 F.3d at 1011 n. 27.

on the issue before this panel.12

As stated above, the first factor for us to address is whether Congress has "intended that the

provision in question benefit the plaintiff." Blessing, at ----, 117 S.Ct. at 1359. Again, section

1369a(a)(8) provides that "[a] State plan for medical assistance must ... provide that all individuals

wishing to make application 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."

42 U.S.C.A. § 1396a(a)(8) (West Supp.1997) (emphasis added). The plain language of the

provision's reasonable promptness clause is clearly intended to benefit Medicaid-"eligible

individuals"—such as the appellees in this case.13 Therefore, we do not hesitate in concluding that

the clause meets the first factor. See Sobky, 855 F.Supp. at 1146 ("Because § 1396a(a)(8) establishes

requirements for providing services and is phrased in terms of benefitting individuals seeking

Medicaid services, Medi-Cal recipients are the intended beneficiaries.") (internal quotation marks

omitted); Blanchard v. Forrest, Civ. A. No. 93-3780, (E.D.La. Sept. 6, 1994) (reasonable

promptness clause of section 1396a(a)(8) "certainly provide[s] a benefit to plaintiffs"); cf. Wilder,

496 U.S. at 510, 110 S.Ct. at 2517-18 ("There can be little doubt that health care providers are the

12

Judge Kravitch dissented from the reasoning and result of the majority opinion in Harris.

See 127 F.3d at 1012-21 (Kravitch, J., dissenting).

13

We reject the appellants' contention that "providers of services" are the intended

beneficiaries of the reasonable promptness clause. See, e.g., Sobky v. Smoley, 855 F.Supp. 1123,

1147 (E.D.Cal.1994) (" § 1396a(a)(8) requires "medical assistance under the plan' to be

furnished with reasonable promptness, and this can only mean medical services."); McMillan,

807 F.Supp. at 480 ("[C]ourts have interpreted the second clause in section 1396a(a)(8)—"such

assistance shall be furnished with reasonable promptness to all eligible individuals'—as applying

to benefits beyond the initial application for Medicaid."); King by King, 776 F.Supp. at 651

("Placement in the Ladd Center [a public ICF/MR] undoubtedly is "medical assistance under the

plan.' "); see also Silver v. Baggiano, 804 F.2d 1211, 1216 (11th Cir.1986) ("As with the

Medicaid statute as a whole, [the "freedom of choice" provision of] § 1396a(a)(23) was intended

to benefit Medicaid recipients.") (footnote omitted).

intended beneficiaries of the Boren Amendment [to the Medicaid Act]. The provision [section

1396a(a)(13)(A) ] establishes a system for reimbursement of providers and is phrased in terms of

benefiting health care providers...."); Golden State Transit, 493 U.S. at 112, 110 S.Ct. at 451-52;

Wright, 479 U.S. at 430, 107 S.Ct. at 773-74 ("The Brooke Amendment [to the Housing Act of

1937] could not be clearer: as further amended in 1981, tenants could be charged as rent no more

and no less than 30 percent of their income.... The intent to benefit tenants is undeniable.");

Maynard, 72 F.3d at 852-53.

Next, we inquire whether the appellees have "demonstrate[d] that the right assertedly

protected by the statute is not so "vague and amorphous' that its enforcement would strain judicial

competence." Blessing, at ----, 117 S.Ct. at 1359. In other words, in the context of this case, we ask

whether enforcing putative Medicaid recipients' right to reasonably prompt medical assistance

exceeds our institutional competence. We think not.

We find support for our conclusion in the Supreme Court's decisions in Wright and Wilder.

In Wright, residents of low-income housing projects alleged that their local public housing authority

("PHA") had overbilled them for their utilities, and thus had violated the Brooke

Amendment—which mandated that a low-income family " "shall pay as rent' a specified percentage

of its income"—and implementing regulations that required that "rent" include a "reasonable"

amount for the use of utilities. 479 U.S. at 420, 107 S.Ct. at 768. The Court rejected the PHA's

assertion that "the provision for a "reasonable' allowance for utilities is too vague and amorphous

to confer on tenants an enforceable "right' within the meaning of § 1983." Wright, 479 U.S. at 431,

107 S.Ct. at 774. Relying primarily on the legality and specificity of the regulations "defining the

statutory concept of "rent' as including utilities," the Court concluded that "the benefits Congress

intended to confer on tenants are sufficiently specific and definite to qualify as enforceable rights

..., rights that are not, as respondent suggests, beyond the competence of the judiciary to enforce."

Wright, 479 U.S. at 431-32, 107 S.Ct. at 774.

In Wilder, the question presented was "whether the Boren Amendment to the [Medicaid] Act,

which requires reimbursement according to rates that a "State finds ... are reasonable and adequate

to meet the costs which must be incurred by efficiently and economically operated facilities,' is

enforceable in an action pursuant to § 1983." 496 U.S. at 501-02, 110 S.Ct. at 2513 (quoting 42

U.S.C. § 1396a(a)(13)(A)) (citation omitted). The Court answered that inquiry in the affirmative

and, in so doing, rejected the argument that the amendment was "too "vague and amorphous' to be

judicially enforceable." Wilder, 496 U.S. at 519, 110 S.Ct. at 2522. In support of its position, the

Court observed that the statute and regulation at issue set out factors which the states had to consider

in adopting rates. Wilder, 496 U.S. at 519, 110 S.Ct. at 2522-23.14 The Court also stated:

That the amendment gives the States substantial discretion in choosing among reasonable

methods of calculating rates may affect the standard under which a court reviews whether

the rates comply with the amendment, but it does not render the amendment unenforceable

by a court. While there may be a range of reasonable rates, there certainly are some rates

outside that range that no State could ever find to be reasonable and adequate under the Act.

Although some knowledge of the hospital industry might be required to evaluate a State's

findings with respect to the reasonableness of its rates, such an inquiry is well within the

competence of the Judiciary.

Wilder, 496 U.S. at 519-20, 110 S.Ct. at 2522-23 (footnote omitted).15

Like the statutory provisions at issue in Wright and Wilder, section 1396a(a)(8)'s requirement

that "assistance shall be furnished with reasonable promptness to all eligible individuals" presents

a sufficiently specific and definite standard readily susceptible to judicial assessment. In our view,

14

The Court noted that the Boren Amendment provided "more guidance than the provision at

issue in Wright, which vested in the housing authority substantial discretion for setting utility

allowances." Wilder, 496 U.S. at 519 n. 17, 110 S.Ct. at 2523 n. 17.

15

The continuing viability of Wright and Wilder is not in doubt. See Harris, 127 F.3d at 1004

(Wright and Wilder "remain good law").

evaluating the reasonable promptness of the provision of Medicaid assistance is less onerous than

evaluating whether a state's Medicaid reimbursement rates are "reasonable and adequate."

Moreover, as Wright and Wilder indicate, the fact that a state retains substantial discretion in

determining the relevant time periods "does not render the [clause] unenforceable by a court."

Wilder, 496 U.S. at 519, 110 S.Ct. at 2523. "While there may be a range of reasonable [time periods

for provision of assistance], there certainly are some [time periods] outside that range that no State

could ever find to be reasonable ... under the [Medicaid] Act." Wilder, 496 U.S. at 519-20, 110 S.Ct.

at 2523. Indeed, given the egregious facts of this case it is difficult for the appellants to argue that

the appellees do not meet the second factor. We agree with the appellees' assertion that in this

context, "[i]t is axiomatic that delays of "several years' ... are far outside the realm of

reasonableness."

We also find that the regulations further define the contours of the statutory right to

reasonably prompt provision of assistance. See Harris 127 F.3d at 1008-09 ("Wright would seem

to indicate that so long as the statute itself confers a specific right upon the plaintiff, and a valid

regulation merely further defines or fleshes out the content of that right, then the statute—"in

conjunction with the regulation'—may create a federal right as further defined by the regulation.").

As stated above, regulation section 435.930 requires that a state "must" "[f]urnish Medicaid

promptly to recipients without any delay caused by the agency's administrative procedures," and

"[c]ontinue to furnish Medicaid regularly to all eligible individuals until they are found to be

ineligible." 42 C.F.R. § 435.930(a)-(b) (1996). As also noted, 42 C.F.R. § 435.911(a) sets forth the

acceptable time limits for eligibility determinations—ninety days for disability-based applications

and forty-five days for all others. In our view, section 1396a(a)(8)—as further fleshed out by these

regulations—creates a federal right to reasonably prompt assistance, that is, assistance provided

without unreasonable delay.

Suter v. Artist M., 503 U.S. 347, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992), does not compel a

contrary conclusion. In that case, the plaintiffs claimed a statutory right pursuant to a section of the

Adoption Assistance and Child Welfare Act of 1980 ("AACWA"), requiring that " "[i]n order for

a State to be eligible for payments under this part, it shall have a plan approved by the Secretary [of

Health and Human Services] which ... provides that, in each case, reasonable efforts will be made

... prior to the placement of a child in foster care, to prevent or eliminate the need for removal of the

child from his home, and ... to make it possible for the child to return to his home....' " Suter, 503

U.S. at 351 n. 1, 112 S.Ct. at 1373 n. 1 (quoting 42 U.S.C. § 671(a)(15)). The plaintiffs in Suter

alleged that the responsible state agencies failed to make such "reasonable efforts." 503 U.S. at 352,

112 S.Ct. at 1364. The Court held that the plaintiffs did not possess a statutory right under section

671(a)(15). 503 U.S. at 350, 112 S.Ct. at 1363. Although the Court did not explicitly discuss the

capable-of-judicial-enforcement factor, its holding relied in part on the fact that the "reasonable

efforts" directive was one "whose meaning will obviously vary with the circumstances of each

individual case." 503 U.S. at 360, 112 S.Ct. at 1368.

Indeed, the procedural history of Suter reveals that enforcing the "reasonable efforts"

provision of the AACWA would strain judicial competence. In that case, in March 1990, the district

court entered an order enjoining the Illinois Department of Children and Family Services ("DCFS")

from failing to assign a caseworker to each child placed in DCFS custody within three working days

of the time the child's case was first heard in juvenile court, and from failing to reassign a

caseworker within three working days of the date any caseworker relinquished responsibility for a

particular case. Suter, 503 U.S. at 354, 112 S.Ct. at 1365. In April 1990, the district court

established a weekly reporting mechanism for compliance with the March 1990 injunction. The

April order required that every Friday the DCFS would provide to plaintiffs' counsel a list of all

children "whose cases have just entered Juvenile Court or who have recently lost their caseworker,

along with the names of involved caseworkers and relevant dates of commencement or completion

of assignments." Artist M. v. Johnson, 917 F.2d 980, 984 n. 6 (7th Cir.1990), rev'd sub nom., Suter

v. Artist M., 503 U.S. 347, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992). On appeal, the Seventh Circuit

remanded for the district court to make factual findings regarding the nature of delays in caseworker

assignments and the progress of DCFS reforms as they existed at the time the trial court rendered

the injunction in March 1990. Artist M., 917 F.2d at 984. In order to render findings on these

issues, the district court had to review "the February 1990 logs of the DCFS regarding caseworker

assignment" and "closely scrutinize [ ]" "the January and February activities of the DCFS." Artist

M., 917 F.2d at 984 (emphasis added).

Federal courts are simply not well-equipped for such undertakings. It is quite evident,

however, that "[w]hat constitutes "reasonable' promptness in providing medical assistance is

inherently more circumscribed and judicially ascertainable than the concept of "reasonable efforts'

in the placement of foster children...." Sobky, 855 F.Supp. at 1147.16 We conclude that the appellees

have shown that their right to reasonably prompt provision of assistance under section 1396a(a)(8)

is not so vague and amorphous that its enforcement would strain judicial competence. See Sobky,

855 F.Supp. at 1147 (same); Wellington v. District of Columbia, 851 F.Supp. 1, 5-6 (D.D.C.1994)

(same); Blanchard, (same); see also Kessler v. Blum, 591 F.Supp. 1013, 1032 (S.D.N.Y.1984)

16

We also note that the Suter Court found it "significant" that the AACWA's regulations were

"not specific." 503 U.S. at 362, 112 S.Ct. at 1369. As discussed, this is not the case with the

relevant Medicaid regulations, which, in requiring states to provide medical assistance without

any delay attributable to administrative processes and in establishing concrete time limits on

processing Medicaid applications, flesh out the meaning of section 1396a(a)(8)'s reasonable

promptness mandate.

(quoting with approval the proposition that "[i]n the absence of an express time for compliance,

courts are uniquely suited to determining what is reasonable") (internal quotation marks omitted).

The third factor we address is whether the reasonable promptness clause "unambiguously

impose[s] a binding obligation on the States." Blessing, at ----, 117 S.Ct. at 1359. The language of

the statute is undoubtedly cast in mandatory rather than precatory terms. See 42 U.S.C.A. §

1396a(a)(8) (West Supp.1997) ("A State plan for medical assistance must ... provide that all

individuals wishing to make application for medical assistance under the plan shall have the

opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all

eligible individuals.") (emphasis added). In addition, a state's receipt of federal Medicaid funds is

expressly conditioned on its compliance with the provisions of section 1396a. See 42 U.S.C.A. §

1396c (West 1992). Accordingly, under the dictates of Wilder, 496 U.S. at 512, 110 S.Ct. at 2518-

19, we hold that the reasonable promptness clause meets the third factor.17

Because they have passed the three-factor test, the appellees are entitled to a rebuttable

presumption that their statutory right is enforceable under section 1983. Blessing, at ----, 117 S.Ct.

at 1360. However, "dismissal is proper if Congress specifically foreclosed a remedy under § 1983."

Blessing, at ----, 117 S.Ct. at 1360 (internal quotation marks omitted). "Congress may do so

expressly, by forbidding recourse to § 1983 in the statute itself, or impliedly, by creating a

comprehensive enforcement scheme that is incompatible with individual enforcement under § 1983."

17

Relying on section 671(a)'s preliminary language that "[i]n order for a State to be eligible

for payments under this part, it shall have a plan approved by the Secretary," the Suter court held

that the AACWA did not require states to make reasonable efforts to keep families together, but

only that they have Secretary-approved plans pronouncing that such reasonable efforts will be

made. See Suter, 503 U.S. at 358, 112 S.Ct. at 1367. Section 1396a(a), however, does not

contain such limiting language. "The right [under section 1396a(a)(8) ] is not merely a

procedural one that [the plan provide that medical assistance be furnished with reasonable

promptness]; rather, the Act provides a substantive right to [reasonably prompt provision of

assistance] as well." Wilder, 496 U.S. at 510, 110 S.Ct. at 2517.

Blessing, at ----, 117 S.Ct. at 1360. The Supreme Court has repeatedly stressed that the burden of

making this showing rests with the defendant. See, e.g., Blessing, at ----, 117 S.Ct. at 1362; Wilder,

496 U.S. at 520-21, 110 S.Ct. at 2523-24; Golden State Transit, 493 U.S. at 107, 110 S.Ct. at 449;

Wright, 479 U.S. at 423, 107 S.Ct. at 770. Wisely, the appellants have made no such argument in

this court. See Wilder, 496 U.S. at 520, 110 S.Ct. at 2523 (finding "little merit" to the argument that

"Congress has foreclosed enforcement of the Medicaid Act under § 1983").

In sum, we hold that the appellees have a federal right to reasonably prompt provision of

assistance under section 1396a(a)(8) of the Medicaid Act, and that this right is enforceable under

section 1983.18

B.

The Eleventh Amendment provides: "The Judicial power of the United States shall not be

construed to extend to any suit in law or equity, commenced or prosecuted against one of the United

States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const.

amend. XI. The Supreme Court has not limited its application of sovereign immunity to the suits

described in the text of the Eleventh Amendment. "To respect the broader concept of immunity,

18

Accord Sobky, 855 F.Supp. at 1146-47; Wellington, 851 F.Supp. at 5-6; Blanchard, 1994.

We also note that in her dissenting opinion in Harris, Judge Kravitch expressed the view that

section 1396a(a)(8),

standing alone, creates an enforceable right to medical assistance. It plainly

satisfies the first two prongs of the Wilder test because it is intended to benefit the

plaintiffs and is mandatory on the States. Furthermore, even though the term

"reasonable promptness" is arguably vague, § 1396a(a)(8) is specific and definite

in its command that "all eligible individuals" be furnished "medical assistance."

Because § 1396a(a)(8) would be judicially enforceable against a State that refused

to provide medical assistance to eligible individuals, the statutory provision

plainly satisfies the third prong of the Wilder test. Thus, standing alone, §

1396a(a)(8) confers upon the plaintiffs an enforceable right to medical assistance.

127 F.3d at 1018 (Kravitch, J., dissenting) (footnotes omitted).

implicit in the Constitution, which we have regarded the Eleventh Amendment as evidencing and

exemplifying, we have extended a State's protection from suit to suits brought by the State's own

citizens." Idaho v. Coeur d'Alene Tribe of Idaho, --- U.S. ----, ----, 117 S.Ct. 2028, 2033, 138

L.Ed.2d 438 (1997) (citing Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890)).

Consequently, "the Eleventh Amendment constitutes an absolute bar to a state's being sued by its

own citizens, among others." DeKalb County Sch. Dist. v. Schrenko, 109 F.3d 680, 687 (11th Cir.)

(per curiam) (internal quotation marks omitted), cert. denied, --- U.S. ----, 118 S.Ct. 601, 139

L.Ed.2d 489 (1997).

To support the district court's grant of injunctive relief in this case, the appellees rely on the

Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), doctrine, which "permits federal

courts to enjoin state officials to conform their conduct to the requirements of federal law, even if

there is an ancillary impact on the state treasury." Schrenko, 109 F.3d at 690 (citing Milliken v.

Bradley, 433 U.S. 267, 289, 97 S.Ct. 2749, 2762, 53 L.Ed.2d 745 (1977)). As the Court has recently

reinforced, a plaintiff's claim seeking prospective injunctive relief against a state officer's ongoing

violation of federal law can ordinarily proceed in federal court. Coeur d'Alene Tribe of Idaho, at

----, 117 S.Ct. at 2040; see also Seminole Tribe of Fla. v. Florida, 517 U.S. 44, ---- nn. 14 & 16, 116

S.Ct. 1114, 1131 nn. 14 & 16, 134 L.Ed.2d 252 (1996).19

This court's recent decision in Tallahassee Memorial Regional Medical Center v. Cook, 109

F.3d 693 (11th Cir.1997) (per curiam), controls this issue. In Cook, two hospitals that provide

in-patient psychiatric care under Florida's Medicaid program brought suit against the Director of the

19

"The [Ex parte Young ] doctrine is not, however, without limitations. A federal court cannot

award retrospective relief, designed to remedy past violations of federal law." Coeur d'Alene

Tribe of Idaho, at ----, 117 S.Ct. at 2043 (O'Connor, J., with Scalia and Thomas, JJ., concurring

in part and concurring in judgment).

Florida Agency for Health Care Administration ("AHCA"), seeking injunctive and declaratory relief

under section 1983 and the Boren Amendment, 42 U.S.C. § 1396(a)(13)(A). 109 F.3d at 695-96.20

The factual background in Cook was as follows:

[D]ue to organizational or funding deficiencies in the state's medical assistance program,

there is an extreme shortage of available spaces at alternative care facilities for ... adolescent

psychiatric patients.

....

Plaintiffs have therefore repeatedly found themselves forced into the posture of

retaining and caring for adolescent psychiatric patients after the medical necessity for

in-patient, acute care services ceases, because treatment at an alternative facility was

medically necessary for the patient, but placement in such an alternative setting was

impossible or greatly delayed. Under these circumstances, the Plaintiffs may not discharge

the patients to the home, since they are not medically able to return to such an unsupervised

setting.... Thus, the hospitals are forced, through no fault of their own, to retain these

patients until placement in an alternative setting is possible.

On retrospective review, [Keystone Peer Review Organization, which is under

contract to review the Medicaid claims at issue,] abides by Medicaid guidelines by denying

Plaintiffs payment for in-patient psychiatric services for adolescents at the point those

services are no longer medically necessary. However, Florida's failure to adopt a provision

for payment of inappropriate level of care services causes AHCA to deny any reimbursement

to the two hospitals for those "grace days," regardless of the duration the adolescent patient

has to wait before an alternative out-patient setting is available. AHCA, through its denial

of reimbursement to Plaintiffs for adolescent psychiatric patient "grace days," thereby shifts

the deficiencies of the State's medical assistance program, and the resulting fiscal impact of

the same, to the Plaintiff hospitals.

109 F.3d at 700-01 (footnote omitted). The district court held that the defendant's practices violated

the Boren Amendment, and it rendered declaratory and injunctive decrees. 109 F.3d at 703-05. This

court affirmed in full the trial court's holdings as to liability and declaratory relief. 109 F.3d at 694-

95.

This court also affirmed the prospective injunctive relief entered against the defendant,

20

With certain exceptions that will be discussed, the Cook panel affirmed "on the basis of the

well-reasoned district court order," and attached that order as Appendix A to its opinion. 109

F.3d at 694.

AHCA:

Defendant AHCA is enjoined from future violations of the Boren Amendment, as set

forth herein. AHCA shall adopt for each Plaintiff hospital an interim outpatient

reimbursement rate that is reasonable and adequate to meet the costs of an economically and

efficiently run facility. AHCA shall reimburse Plaintiffs in accordance with the existing

in-patient rate, or the interim outpatient rate, as dictated by the medical necessity of each

individual case. This injunction is to remain in full force and effect until further order of the

Court.

109 F.3d at 694-95, 705 (brackets omitted). This holding confirms our belief that the instant lawsuit

fits neatly within the Ex parte Young exception. Like the hospitals in Cook, the appellees in this

case seek prospective injunctive relief to enjoin state officials from continuing to violate federal law,

that is, the Medicaid Act.

The Cook panel, however, correctly vacated on Eleventh Amendment grounds the provisions

of the district court's order that compelled the Florida Legislature to "amend its Medicaid plan to

include reimbursement for medically necessary inappropriate level of care services." 109 F.3d at

695, 704. In the present case, the district court's Final Judgment reads: "Accordingly, it is

ORDERED AND ADJUDGED that Defendants shall, within 60 days of the date of this Order,

establish within the State's Medicaid Plan a reasonable waiting list time period, not to exceed ninety

days, for individuals who are eligible for placement in ICF/DD institutional care facilities." This

language only means that the appellants must incorporate into their present scheme of providing

services procedures that ensure a waiting list period of not more than ninety days. Consequently,

the Eleventh Amendment poses no bar to this lawsuit or to the injunctive relief the district court

imposed against the appellants. See Cook, 109 F.3d at 694-95, 704-05.

C.

The appellants' final claim is that the district court abused its discretion in enjoining them

to provide the Medicaid services at issue within ninety days. The appellants put forth several

arguments in support of this position.

First, the appellants emphasize the optional nature of the ICF/DD program. As we have

stated, however, "even when a state elects to provide an optional service, that service becomes part

of the state Medicaid plan and is subject to the requirements of federal law." Cook, 109 F.3d at 698;

see also Weaver v. Reagen, 886 F.2d 194, 197 (8th Cir.1989) ("Once a state chooses to offer such

optional services it is bound to act in compliance with the [Medicaid] Act and the applicable

regulations in the implementation of those services...."). Accordingly, appellants' assertion here

does little to undermine our confidence regarding the propriety of the district court's injunction.

Second, the appellants assert that the district court's enjoinment prevents them from

emphasizing the provision of community-based services to developmentally disabled individuals

in place of institutional care. The appellants state that in recent years "Florida has emphasized the

use of the home and community based waiver as its principal vehicle for expanding and improving

long-term care services to individuals with developmental disabilities."21 The appellants' belief that

21

The Social Security Act "permits States to offer, under a waiver of statutory requirements,

an array of home and community-based services that an individual needs to avoid

institutionalization." 42 C.F.R. § 441.300 (1996). See 42 U.S.C.A. § 1396n(c) (West

Supp.1997); see generally Medicaid Program; Home and Community-Based Services, 46

Fed.Reg. 48,532 (1981). In order to participate in this program, however, states must provide:

Assurance that when a recipient is determined to be likely to require the level of

care provided in an ... ICF/MR, the recipient or his or her legal representative 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.

42 C.F.R. § 441.302(d)(1)-(2)(1996).

We note that at a hearing before the district court on June 10, 1996, the appellants'

counsel admitted that a waiting list also exists under the waiver program because "[t]here

the district court's order will necessarily impede this trend is misplaced. The plain language of the

district court's injunction does not prevent the appellants from continuing to pursue the home and

community-based services waiver program in accordance with federal statutory and regulatory

dictates, including section 1396a(a)(8).22

Third, the appellants devote three sentences in their initial brief to the contention that the

ninety-day time limit is overly stringent. The appellants argue that the district court imposed this

time limit without regard for the state's resources or its recent emphasis on providing

community-based services as a substitute for institutionalization. We have already addressed the

latter contention. As to the former, the appellants' bald statement does not convince us that the

district court abused its discretion. In any event, "[i]nadequate state appropriations do not excuse

is not the money available to fund the program." Counsel did not mention the extent of

the delays.

22

This is not surprising given that the appellees' counsel repeatedly stressed that the appellants

should retain complete discretion in determining how to provide ICF/DD services. At the June

10, 1996 hearing, for example, counsel stated that "[w]hat I have asked this Court to do is require

of the defendants to comply with section [1396]a(a)(8) of the Medicaid statute and leave it to the

defendants as to how they comply." At another hearing in October 1994, counsel told the

magistrate judge:

[T]he services that are needed by these people [the plaintiffs], according to the

defendants and, in many cases, according to the plaintiffs, could be provided other

than in a[n] [institutional] bed. They could be provided in the people's homes.

There is something called the waiver program.... [O]ur position to the

state has always been, if they want to provide everybody with services so that

they don't need to be taken out of their current housing arrangement—because

they will get the physical therapy, the occupational therapy, the other on-call

services that are needed, that's great. There won't be a lawsuit. They are always

welcome to provide services to people in the manner in which they see fit.

We have filed a lawsuit based on the one federal right which exists, which

is the right to [a prompt] ICF/MR placement if you're Medicaid eligible and meet

the criteria. And if—like anything else—they want to entice people away by

offering some other package of services, that's great.

noncompliance" with the Medicaid Act. Alabama Nursing Home Ass'n v. Harris, 617 F.2d 388, 396

(5th Cir.1980); see also Cook, 109 F.3d at 704.

Fourth, the appellants argue that the injunction is overly broad. They contend, for example,

that "[t]he final judgment was not limited to the inadequacy—lengthy waiting time for placement

in ICFs—that produced the alleged injury." We could not disagree more. The injunction is crafted

only toward generating a "reasonable waiting list time period" for eligible individuals. Thus, when

the appellants further assert that "[t]he district court should have ... ordered an[ ] end [to] lengthy

waiting periods generally, without dictating how the problem was to be corrected," we find ourselves

in complete accord. And, that is what the district court did. See Lewis v. Casey, 518 U.S. 343, ----,

116 S.Ct. 2174, 2183, 135 L.Ed.2d 606 (1996) ("The remedy must of course be limited to the

inadequacy that produced the injury-in-fact that the plaintiff has established.").23

Fifth, the appellants argue that the district court abused its discretion because it did not give

Florida officials the option of "terminat[ing][the] receipt of federal money rather than assum[ing]

unanticipated burdens." The appellants' concern here is overstated, as a recipient of federal funds

under Spending Clause legislation always retains this option.

23

In addition, and unlike the circumstances in Casey, the appellees in this case have certainly

established that the appellants' ongoing violation of federal law is "systemwide." See Casey, at -

--- & n. 7, 116 S.Ct. at 2184 & n. 7. Indeed, in the trial court the appellants did not contest the

existence or length of the delays at issue. See, e.g., Defendants' Official Capacity Answer &

Affirmative Defenses ("Answer") at ¶ 9(c) (admitting that Jane Doe 1 was "seeking a residential

placement in an ICF/DD facility for 8 years"), ¶ 10(d) ("Admit that [John] Doe 2 has been on a

waiting list for an ICF/DD placement for approximately five years ....") and ¶ 11(e) ("Defendants

deny that [John] Doe 2b has been on a waiting list for ten years, but admit that he has been on a

residential waiting list for eight years."). Nor did the appellants contest that the delays were

pervasive. See, e.g., Answer at ¶ 6 (appellants "admit that there are large number[s] of

individuals waiting for ICF/DD services"). Instead, they argued that the delays were permissible

under the law. The record reveals that hundreds, perhaps even thousands, of eligible

developmentally disabled persons are not being provided ICF/DD services with anything

resembling reasonable promptness. Consequently, we reject the appellants' contention that

"there was no showing of statewide or "system' wide injury."

[I]n fashioning remedies for violations of Spending Clause statutes by recipients of federal

funds, the courts must recognize that the recipient has alternative choices of assuming the

additional costs of complying with what a court has announced is necessary to conform to

federal law or of not using federal funds and withdrawing from the federal program entirely.

Although a court may identify the violation and enjoin its continuance or order recipients of

federal funds prospectively to perform their duties incident to the receipt of federal money,

the recipient has the option of withdrawing and hence terminating the prospective force of

the injunction.

Guardians Ass'n v. Civil Service Com'n of City of New York, 463 U.S. 582, 596, 103 S.Ct. 3221,

3229, 77 L.Ed.2d 866 (1983) (opinion of White, J., with Rehnquist, J.) (internal quotation marks and

citation omitted).

Finally, the appellants contend that "the relief sought and granted was essentially a political

remedy which the district court should have avoided." This assertion is meritless. "Injunctive relief

may, of course, be applied to state officials whose actions derogate federal Medicaid laws...." Smith

v. Miller, 665 F.2d 172, 175 (7th Cir.1981) (citing Ex parte Young ).

V. CONCLUSION

For the foregoing reasons, we affirm the judgment of the district court.

AFFIRMED.