# Amicus Curiae Brief — Wilder v. Virginia Hospital Assn.

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0517%3A04

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1990
- **Citation:** 496 U.S. 498

## Text

in the Supreme Court
of the United States

OCTOBER TERM, 1988

GERALD L. BALILES, et al.
Petitioners,

THE VIRGINIA HOSPITAL ASSOCIATION,
Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

Brief Amici Curiae of the States of
Alaska, Arizona, Colorado, Connecticut, Delaware,
Florida, Georgia, Hawaii, Idaho, Illinois, Indiana,
lowa, Kansas, Kentucky, Louisiana, Michigan,
Minnesota, Mississippi, Missouri, Montana, Nebraska,
Nevada, New Hampshire, New Jersey, North Dakota,
Oklahoma, Oregon, Pennsy!vania, Rhode Island,
South Carolina, South Dakota, Tennessee, Utah,
Vermont, Washington, West Virginia and Wyoming

DAVE FROHNMAYER
Attorney General of Oregon
JAMES E. MOUNTAIN, JR.
Deputy Attorney General
*VIRGINIA L. LINDER
Solicitor General
ROBERT M. ATKINSON
Assistant Attorney Genera!
400 Justice Building
Salem, Oregon 97310
Phone: (503) 378-4402
Council for Amici Curiae

BEST AVAILABLE COPY ©

(ie., hospitals and nursing care homes) a private right of
action enforceable through 42 U.S.C. § 1983 (1982) to chal-
lenge state reimbursement decisions in federal court.

INTEREST OF AMICI CURIAE

The State of Oregon et al. submit this brief as amici curiae
in support of the petition for writ of certiorari filed by the
Commonwealth of Virginia. Virginia seeks review of the deci-
sion of the United States Court of Appeals for the Fourth
Circuit in Virginia Hospital Association v. Baliles, 868 F.2d 653
(4th Cir. 1989). In urging the Court to grant certiorari, the
State of Oregon is joined by 36 additional states.' The amici
states, individually and collectively, have a strong interest in
the issues presented by the Commonwealth of Virginia in its
petition. In particular, they have an overriding interest in the
first question presented: whether health care service pro-
viders have a right enforceable through section 1983 to sue in
federal court for a particular level of Medicaid reimbursement.

Medicaid is a voluntary, cooperative federal-state program
that provides funds to reimburse certain costs of medical
treatment for the needy. Each of the amici states participates
in the Medicaid program, except Arizona. See footnote 1. As
required by federal law, a participating state’s Medicaid pro-
gram must fund institutional medical care, including care in
inpatient hosptials, nursing facilities, and intermediate care
facilities (collectively referred to as “providers”). The amount
of federal-state dollars directed to needy persons through
private, for-profit providers is a major portion of the overall
Medicaid program.

The amici states have a substantial financial stake in the
outcome of this case and a significant legal interest in its

'This brief of amici curiae is filed pursuant to Rule 36.4 of the Rules of
the Supreme Court. The amici states are listed in Appendix A to this
brief. Amicus State of Arizona does not participate in the Medicaid program
directly. However, it participates in a cooperative state-federal program
under a special grant that provides funds for indigent health care. Because of
the similarities between this special grant program and the Medicaid
program, Arizona has an interest in the issues presented in the petition for
writ of certiorari. ,

ili

resolution. The decision below holds that a health care pro-

vider may bring an action under section 1983 to challenge the _

provider reimbursement rate set by a state and approved by
the federal government. Providers are thus free to attack, on
a year-by-year and provider-by-provider basis, the “reason-
ableness” of each state’s reimbursement rates. Every routine
rate challenge may be made a federal case.

Many of the amici states already are caught up in the
explosion of provider litigation based on alleged federal rights
to specific levels of reimbursement. Indeed, some amici states
are under siege by multiple lawsuits for different years,
different classes of providers and inconsistent claims as to the
rate allegedly guaranteed by federal law. Millions of state and
federal dollars are potentially at stake in each law-
suit. Collectively, hundreds of millions of dollars are
involved. The question of provider entitlement to bring these
federal lawsuits needs resolution at a national level. The
amici states therefore file this brief to urge the Court to grant
the Commonwealth of Virginia’s petition for writ of certiorari.

iv

TABLE OF CONTENTS
Page
EE Te hs cc acadgngeeed binteceedsesseetouens i
EL . «¢eccodedecesoecsegeessessecsese iii
ES ccccccoscescecccescsecesccososeeses 1
Argument
I. This case involves issues of substantial impor-
SD cncccnaececedidenccesteecencasceccececocs 2
II. Neither the history nor the language of section
1396 supports finding that providers have rights
_ enforceable through section 1983 ................ 3
Ill. The results in the circuits are inconsistent ....... ll
URES di decnbScebe weds cbSececdcccecdccecesoti 13
Appendix A
List of the Amici Curiae ..................005. App-1
Appendix B
PED caodoccvccosceseesoseesesses App-7

TABLE OF AUTHORITIES
Page
Cases Cited
Cannon v. University of Chicago, 441 U.S. 677 (1979) ......... 8
Case v. Weinberger, 523 F.2d 602 (2d Cir. 1975) ............. 11
Colorado Health Care Ass’n v. Colorado Dept. of Social
Services, 842 F.2d 1158 (10th Cir. 1986) .............. 11
Coos Bay Care Center v. Oregon, 803 F.2d 1060 (9th Cir.
1986), cert. granted, 481 U.S. 1036, judgment
vacated and remanded on issue of mootness,
U.S. —— , 108 S.Ct. 52 (1987) 2... ccc eens 2,11
Cort v. Ash 422 U.S. 66 (1975) .. 2.66.6 ccc cece eee 12
Edwards v. District of Columbia, 821 F.2d 651 (D.C. Cir.
i ie ch ie teesndgosedecceococcces 4
Green v. Cashman, 605 F.2d 945 (6th Cir. 1979) .......... 11-12
Maine v. Thiboutot, 448 U.S. 1 (1980) ...........6..06 005 3,12
Middlesex County Sewerage Auth. v. Nat’l Sea Clam-
mers Ass’n, 453 U.S. 1 (1981) ... 2... 6. cece eee ewes 3,12
Minnesota Assoc. of Health Care Facilities v. MAHCF,
742 F.2d 442, 446 (8th Cir. 1984), cert. denied, 469
ST an dec cdancedeebeoesedbeccnccccecs 10
Mississippi Hosp. Ass’n., Inc. v. Heckler, 701 F.2d 511
ink co dinregbbeeteeseedsedeccccccocce 5
Nebraska Health Care Ass’n v. Dunning, 778 F.2d 1291
i ctancd cgeawebesoedsdbedséeocecccccece 7
Pennhurst State School and Hospital v. Halderman, 451
Rabe dudbedesbbcdeetercstesooccces passim
Virginia Hosp. Ass’n v. Baliles, 868 F.2d 653 (4th Cir.
BED edebedddeeesesssedcocoessccccccoevecccces passim
Volk, et al. v. State, et al A5O0092 . 2... cece
Wisconsin Hospital Ass’n v. Reivitz, 733 F.2d 1226 (7th
i ie ee cepa eeeeedes se cceeccess 5
Wright v. City of Roanoke Redevelopment & Housing
Auth., 479 U.S. 418 (1987) ... 2.2... 3,10

vu

TABLE OF AUTHORITIES—Continued

Page
United States Constitution, Article I, section 8, clause 1 ........ 9
Statutory Provisions
42 U.S.C. § 1396a(a)(13)(A) (1986) ..............00005. passim
Ge) SET bab cnbctccccccesocceevesosses passim
Administrative Regulations

SOG ee O GRD Fei ok ob dedeccccccccdscccccncs 10

GeO SUP ED oc cccccccctvccccccccceccccces 10

EE 7

ny <i. cccnpeecgereseeesssuesdeebees 10

a ss ns cencuceneebecncnesestoues 10

Se ED vcccnnssdodeteccocccccesctb<cees 3

Other Authorities

S. Rep. 96-471, 96th Cong., Ist Sess. ..............000055. 4-5,6

126 Cong. Rec. 17,885-86 (1980) ... 2.2.2.0... ee eee eee ee 5
HEALTH CARE FINANCING ADMIN., Dep’t of HEALTH
AND HUMAN Services, Mepicaip FINANCIAL

SUUPGUIST PUBOAE, WEN TEE occ ccc ccccccccccccccccccs 3

Vill

1

SUMMARY OF ARGUMENT

Congressional intent, as revealed by the language and his-
tory of the 1980 amendments to the Medicaid statutes, refutes
the lower court’s conclusion that providers have a right to sue
states over reimbursement rates under the aegis of section
1983. The amended version of the statute provides only that
states must provide “assurances” to the Secretary of Health
and Human Services that rates are reasonable and ade-
quate. There is no language in the amended statute suggest-
ing enforceable rights. The history of the amendments
confirms Congress intended to decrease federal oversight of
state rate-making. Layering judicial scrutiny on top of
administrative review runs directly counter to that
intent. Rather than reducing federal oversight of the state
responsibility for those rates, as Congress intended, the result
setting authority to the federal courts. That transfer of
authority threatens to spill over to permit private rights of
action pursuant to other statutory systems under the lower
court’s misapplication of the “enforceable rights” doctrine.

The lack of support for provider enforceable rights in the
language and history of the statutes has caused those circuits
that have found such a right to employ inconsistent and often
contradictory analyses. The courts disagree about the
applicability of this Court’s cases to this issue. Some courts
find providers to be “intended beneficiaries” of the Medicaid
found a coherent approach consistent with this Court’s juris-
prudence of enforceable rights under section 1983. Because of
the uncertainty among lower courts in their analyses and the
importance of the issue, this case merits this Court’s review.

2
ARGUMENT
I. This case involves issues of substantial importance.

This case presents the same issue on which this Court
granted certiorari in Coos Bay Care Center v. Oregon, 803 F.2d
1060 (9th Cir. 1986), cert. granted, 481 U.S. 1036, judgment
vacated and remanded on issue of mootness, __. U.S. ___., 108
S.Ct. 52 (1987) (Coos Bay). Did Congress intend to permit
providers of health care services under 42 U.S.C.
§ 1396a(a)(13)(A) (1986) to bring suit against the states under
42 U.S.C. § 1983 (1982) when it amended the Medicaid stat-
utes in 1980? The issue is no less important today than it was
in 1987 when a majority of the states, several organizations
representing local governments, and the United States Solic-
itor General all joined Oregon in requesting this Court to
reverse the decision of the Ninth Circuit Court of Appeals
allowing providers to sue. Indeed, the rapid growth of litiga-
tion in the area and the enormous amounts of money at stake
bear stark witness to the Court’s prudence in agreeing to hear
that case.

The number of challenges to state reimbursement systems
by providers of inpatient hospital and long-term care services
to Medicaid recipients has been substantial in recent
years.? Each of these challenges has the potential to involve
very large amounts of money drawn from both state and
federal treasuries.’ Because the total number of state and
grams is truly staggering, the burgeoning number of cases has
the potential to subject federal and state governments to lia-

* See Appendix B for a list of some currently pending section 1983
challenges to Medicaid reumbursement rates.

‘For example, Volk, et al vu. Oregon, et al, cited in Appendix B,
although involving only one year’s reimbursement schedule and involving
the nursing home industry but not hospitais, has over $5 million at stake.
more than $3 milhon of which is federal money. The several Pennsylvania
cases may entail liability of $80 million.

3
bility running easily into the hundreds of millions of dollars.‘
Il. Neither the history nor the language of section

1396 supports finding that providers have rights

enforceable through section 1983.

In Maine v. Thiboutot, 448 U.S. 1 (1980), this Court held
that the phrase “and laws” in 42 /.S.C. § 1983 (1982)° must be
read literally, so as to create under that section a private cause
of action against state officials for violations of rights confer-
red by federal statutes. One year after Thiboutot, the Court
“recognized two exceptions to the application of § 1983 to
statutory violations.” Middlesex County Sewerage Auth. v.
Nat'l Sea Clammers Ass'n, 453 U.S. 1, 19 (1981) (Sea Clam-
mers), citing Pennhurst State School and Hospital v. Halder-
man, 451 U.S. 1 (1981) (Pennhurst). The Court held that a
section 1983 action will not lie where (1) Congress has fore-
closed private enforcement of the federal statute in the statute
itself, or (2) the statute does not create “enforceable rights”
under section 1983. Sea Clammers, 453 U.S. at 19; Pennhurst,
451 U.S. at 28; see also Wright v. City of Roanoke Redevelop-
ment & Housing Auth., 479 U.S. 418, 423-24 (1987)

“ As the United States Solicitor General noted in his brief in support of
the State of Oregon in Coos Bay, the federal contribution to the Medicaid
program for medical assistance totalled $23.4 billion in 1986. Brief For The
United States As Amicus Curiae Supporting Petitioners, at 2, citing
HeactuH Care Financine Apmin., Dep't or HEALTH AND HUMAN Serv-
ices, Mepicam Frnanciat Report: Fisca Year 1986. Federal funds
comprised at least 50 and in some cases more than 70 percent of each state's

medical assistance program in 1986. 49 Fed. Reg. 46,957 (1984). The

average figure was approximately 58 percent. Thus, treating 1986 as a
representative year, and including the states’ contribution, the total medica!
assistance budget is over $40 billion per year.

* 42 U.S.C. § 1983 (1982) provides, in pertinent part:
Every person who, under color of any statute, ordinance, reg-

4

(Roanoke). This case falls within the second excep-
tion: Congress did not intend to afford enforceable rights to
providers of health care services when it amended the Medic-
aid statutes in 1980.

In Pennhurst the Court concluded that whether Congress
intended to create rights enforceable under the aegis of section

1983, when it does not expressly provide for such actions in a

given enactment, must be determined from the language and
history of the act. In this case, the history, which demon-
strates that Congress intended to increase state autonomy and
decrease federal oversight in the Medicaid reimbursement
rate-setting process, illuminates the language, which is not the
right- or duty-creating language a court must find to support a
claim of rights enforceable under section 1983.

A. The history of section 1396 supports a result
directly contrary to that reached in the lower
court.

By the earlier reference to the increasing numbers of suits
challenging state reimbursement rates, amici do not merely
suggest the federal courts wil] be met with a flood of litigation,
although those waters are unquestionably rising. The point,
rather, is that year-by-year, provider-by-provider litigation
over each aspect of each state’s plan is becoming the rule, a
reality manifestly inconsistent with Congress’ unmistakable
intent to reduce rather than increase federal oversight of the
rate-making process. That intent is conspicuous in the legis-
lative history surrounding the enactment of the 1980 amend-
ments to the Medicaid statutes.

In 1980, in response to the “inherently inflationary”
nature of the former “reasonable cost” standard, Congress
enacted the Boren Amendment to the Medicaid statutes.® S.

* Now embodied in 42 U.S.C. § 1396a(a)(13)(A) (1986).

SS ee ee ee

Rep. 96-471, 96th Cong., Ist Sess. 28-29.’ The amendment
“represented a significant change in the federal {reimburs-
ement] standard,” offering the states an opportunity to effect
“more stringent cost containment” while freeing them from
excessive “federal oversight of (their] reimbursement meth-
odologies.” Wisconsin Hospital Ass'n v. Reivitz, 733 F.2d 1226,
1228 (7th Cir. 1984). Congress chose to “give{] the States
and standards of payment.” S. Rep. 96-471, at 28. By the
same token, Congress intended “to reduce federal oversight of
state reimbursement.” Mississippi Hosp. Ass'n., Inc. v.
Heckler, 701 F.2d 511, 521 (5th Cir. 1983). While pointing out
that the Secretary would continue to insist on “assurances
. . . that the payment rates. . . are reasonable and adequate,”
Congress “expectied} that the Secretary will keep regulatory
and other requirements to that minimum necessary to assure
proper accountability, and not overburden the States and
facilities with marginal but massive paperwork require-
ments.” S. Rep. 96-471, at 29. It is distinctly ironic that a

however, is largely limited to statements that merely reiterate
the statutory references to “reasonable and adequate”
rates. See 868 F.2d at 658-59. The court acknowledged that
the purpose behind the Omnibus Budget Reconciliation Act
(OBRA), of which the Boren Amendment was a part, was to
reduce the federal budget. The court ignored, however, the
paralle! and equally important intent of the Boren Amend-
ment to reduce federal oversight of state programs. Refusal to
acknowledge this central goal of the Boren Amendment
spared the court the unenviable task of reconciling the inev-
itably more intrusive effects of piecemeal litigation with Con-

Based on its conclusion that Congress “intended no close

7

whatever rates the states might conjure up is inconsistent not
only with these expressions of Congressional intent, but also
with the Secretary's view reflected in the regulations issued to
implement the Boren Amendment,’ and the Secretary's
actions in reviewing state plans. See, e.g, Nebraska Health
Care Ass'n v. Dunning, 778 F.2d 1291 (8th Cir. 1985) (discuss-
ing Secretary's disapproval of part of Nebraska's plan for
1983-84).

Congress intended to decrease, not increase, federal over-

B. The language of section 1396 is not rights-creat-
ing language.

The act under consideration in Pennhurst referred to

“rights” accorded to the intended beneficiaries of the act and

* See, e.g . Preamble to Interim Final Rule, Medicaid Program, Payment
for Long-Term Care Facility Services and Inpatient Hospital Services. 46
Fed. Reg. 47,964, 47,966 (1981). The regulations, as revised to meet the
requirements of the 1980 amendments. require states to submit assurances at

mation a State submits with respect to these items to determine whether it 1s
reasonable to justify acceptance of the State's assurances ~ /bid

“obligations” on the part of the states. Despite that language.
this Court concluded Congress had not intended to create
enforceable nghts against the states. Rather, the Court deter-
mined, the language in question was merely precatory, a
“nudge” in Congress’ preferred direction. 451 U.S. at 19.
The language of section 1396a(a)(13)(A) is far less likely
to be employed by a Congress desirous of creating enforceable
rights than is the language at issue in Pennhurst. Section
1396a(a)(13)(A) does not contain a specific grant of a private
right of action. Nor does it read like a statute designed to
“dictate specifically what the relevant government officials
may and may not do.” Edwards v. District of Columbia, 821
F.2d 651, 656 (D.C. Cir. 1987). Far from containing “right- or
duty -creating language,” Cannon v. University of Chicago, 441
U.S. 677, 690 n. 13 (1979), section 1396a(a)(13)(A) permits
participating states to devise reimbursement rates “which the
State finds, and makes assurances satisfactory to the Secre-
tary, are reasonable and adequate to meet the costs which
must be incurred by efficiently and economically operated
facilities. . . .” The statute also provides that these rates are
to be set “in accordance with methods and standards devel-
oped by the State.” By its terms, therefore, section
1396a(a)(13)(A) vests rate-making discretion in the state,
subject to the condition that it makes “assurances satisfactory
to the Secretary.” As the Pennhurst Court noted in the con-
vext of the statute at issue in that case, “[i}t is at least an open
question whether an individual's interest in having a State
provide. . . ‘assurances’ [to the Secretary] is a ‘right secured’
by the laws of the United States within the meaning of
§ 1983.” 451 U.S. at 28. Indeed, if the statutory requirement
of assurances by the states confers any right on providers, it is
only the nght to have those assurances provided to the Secre-
tary. The provision of the assurances then engages the
machinery of the Secretary's review. The Secretary examines

the assurances, the rates and the supporting data to determine
whether the rates meet the statutory standard. The providers’
“right,” if any, is the right to have the Secretary perform his or
her duty and conduct the required review to ensure proper
accountability, not the “right” to substitute themselves and
the courts for the state, under the scrutiny of the Secretary, as
rate-maker.

Thus, in Pennhurst, this Court did not find enforceable
rights despite language of right and obligation. Here, by con-
trast, the court of appeals found enforceable rights despite the
lack of right- or duty-creating language and in the face of the
much more limited language of “assurances,” language this
Court has previously questioned as the basis of “enforceable
rights.”

The lower court acknowledged that the statute at issue in
this case, like the statute in Pennhurst, was enacted under the
spending power of Article I, section 8, clause 1, of the United
States Constitution. 868 F.2d at 657, n. 3. Pennhurst’s insis-
tence on clear legislative direction in spending power cases
stemmed from the Court’s concern that states be informed of
their obligations in unambiguous terms when they enter into a
voluntary, federally supported program.

[Ljegislation enacted pursuant to the spending power

is much in the nature of a contract. . . . The legit-

imacy of Congress’ power to legislate under the spend-
ing power . . fests on whether the State voluntarily
and knowingly accepts the terms of the “contract”

. There can, of course, be no knowing acceptance

if a State is unaware of the conditions or is unable to

ascertain what is expected of it.

451 U.S. at 17 (citations omitted). The lower court believed
this concern is “allayfed]” in this case because the states
undoubtedly knew they were agreeing to pay reasonable and
adequate rates when they elected to participate in the pro-

10

gram. 868 F.2d at 659. It is one thing to say the states know-
ingly bound themselves to pay reasonable and adequate rates
under the supervision and control of the Secretary. However,
it is quite another to say they knowingly agreed to defend
expensive, time-consuming and disruptive litigation in state
and federal courts brought by each disgruntled provider over
every aspect of and change in their programs. To make a
simple analogy, even a consumer who felt she had no real
choice but to enter into a particular contract is entitled to
know it has an attorney fees provision in it.

Providers, like the states, are voluntary participants in the
Medicaid program. See 42 C.F.R. § 447.204 (1985); Minnesota
Assoc. of Health Care Facilities v. MAHCF, 742 F.2d 442, 446
(8th Cir. 1984), cert. denied, 469 U.S. 1215 (1985) (providers
are free to decline to participate in the Medicaid program if
they are dissatisfied with a state’s rates). Thus providers have
the ability to opt out of the Medicaid program any time a
state’s rates are such that they believe it is not economically
desirable to participate. Even so, as a condition to state
participation, the Secretary requires each state to have in
place an administrative appeals process through which pro-
viders may challenge reimbursement rates. 42 C.F.R.
§ 447.253(c) (1985). However, the Secretary, whose inter-
pretation is entitled to “some deference,” Roanoke, 479 U.S.
418, 427, expressly has rejected the call for private rights of
action in the regulations adopted to implement the Boren
Amendment on the ground that the statutes contained neither
mandate nor authority to provide judicial recourse for dissat-
isfied providers. 48 Fed. Reg. 56,052 (1983); see also Preamble
to Final Rule, Medicaid Program; Payment for Long-Term
Care Facilities and Inpatient Hosptial Services, 48 Fed. Reg.
56,046 at 56,050 (1983).

Oa oo a

ll

III. The results in the circuits are inconsistent.

Because of the proliferation of section 1983 actions
against the states based on statutes that do not expressly
provide for private rights of action, the states have a signifi-
cant stake in the development of the law of enforceable rights
under that section. Although the cases in the various federal
circuit courts of appeal cannot fairly be described as in direct
conflict, the courts have not found a consistent analysis. For
example, the Ninth Circuit concluded in Coos Bay Care Center
uv. Oregon that it was “not necessary to engage in a Pennhurst
analysis.” 803 F.2d at 1062. The lower court in this case, by
contrast, concluded that a Pennhurst analysis was indeed
required. 868 F.2d at 657 n. 3.

The Ninth and Tenth Circuits have concluded that pro-
viders have standing under section 1396a(a)(13)(A) based on
their view that providers are intended beneficiaries of the
Medicaid statutes with interests “parallel” to those of
patients. See Colorado Health Care Ass'n v. Colorado Dept. of
Social Services, 842 F.2d 1158, 1164, n. 5 (10th Cir. 1988); Coos
Bay, 803 F.2d at 1063.'° At least two other circuits have
rejected the conclusion that providers are intended benefici-
aries. Green v. Cashman, 605 F.2d 945 (6th Cir. 1979), and
Case v. Weinberger, 523 F.2d 602 (2d Cir. 1975). In Green, the
court stated:

12

We do not find in the statute authorizing Medicare

and Medicaid any legislative intention to provide

financial assistance to providers of care for their own

benefit. Rather, the statute is designed to aid the

patients and clients of such facilities.
605 F.2d at 946. Amici do not agree that “interest” analysis is
appropriate for determining enforceable rights under section
1983.'! Even so, those courts embarking on that approach are
at best in unsettled waters in concluding that section
1396a(a)(13)(A) provides standing to providers, as the dis-
agreement among the circuit courts of appeal demonstrates.

Thus, the circuits do not agree on the applicability of this
Court’s opinions and, assuming that the identity of the
intended beneficaries of the Medicaid statutes is a relevant
inquiry, they do not agree whether providers fall within that
class. In light of the enormous amounts of money at stake in
these cases, the importance to both the state and federal gov-
ernments of a clear application of the law of enforceable rights
under section 1983, and the ever-increasing amount of litiga-
tion by providers, this Court should determine whether pro-
viders have enforceable rights under section 1396a(a)(13)(A).

'' The Ninth Circuit “special beneficiary” test is “borrowed” from the
implied right of action test of Cort v. Ash 422 U.S. 66 (1975). See 803 F.2d at
1062-63. The Cort test is designed to determine whether Congress intended
to umply a right of action in a substantive statute itself, without reference to
section 1983. Thiboutot, Pennhurst, Sea Clammers, et al., by contrast, seek
to know if Congress intended to permit private enforcement via section
1983. The inquiries are distinct. See, Thiboutot, 448 U.S. at 6. The issue
under Cort is who can enforce a right provided by statute. The issue under
section 1983 is whether there is any secured right to enforce.

Indeed, this approach is demonstrably inconsistent with Pen-
nhurst. No one denied that the “bill of rights” provision of the act at issue in
Pennhurst was enacted for the benefit of the class of institutionalized per-
sons with mental retardation that included the plaintiffs in that case. That,
however, was not sufficient to support the conclusion Congress intended to
grant those intended benficiaries rights enforceable under section 1983.

13

CONCLUSION
For the reasons stated above, this Court should grant the
Commonwealth of Virginia’s petition for writ of certiorari.

Respectfully submitted,

DAVE FROHNMAYER
Attorney General of Oregon

JAMES E. MOUNTAIN, JR.
Deputy Attorney General

VIRGINIA L. LINDER
Solicitor General

ROBERT M. ATKINSON
Assistant Attorney General

Counsel for Amici Curiae

General of Colorado
Denver, Colorado 80203

Attorney General of Delaware
Wilmington, Delaware 19801

Attorney General of Illinois
100 West Randolph Street, 12th Floor
Chicago, Illinois 60601

State of Indiana
Linley E. Pearson
Attorney Genera! of Indiana
219 State House

Indianapolis, Indiana 46204
State of lowa

Thomas J. Miller

Attorney General of lowa
Hoover Building — Second Floor
Des Moines, lowa 50319

State of Kansas
Robert T. Stephan
Attorney General of Kansas
Judicial Center — Second Floor
Topeka, Kansas 66612

Commonwealth of Kentucky
Frederic J. Cowan
Attorney General of Kentucky
State Capitol, Room 116
Frankfort, Kentucky 40601

ns

Attorney Genera! of Missouri
Jefferson City, Missouri 65! (02

Attorney General of New Jersey
Trenton, New Jersey 08625

App-6
State of West Virginia
Charles G. Brown
General of West Virginia
26E, State
Charleston, West Virginia 25305
State of Wyoming
Joseph B. Meyer
Genera! of Wyoming
123 State Capitol

C—O

a

App-7
APPENDIX B
PENDING LITIGATION
COLORADO

Amisub (PSL), Inc. v. State of Colorado, Department of
Social Services, No. 88-2482— United States Court of
Appeals for the Tenth Circuit

The Medical Center of Delaware, Inc. v. Eichler, No.
89-MY-9-1-CA— (petition for removal to United
States District Court pending)

GEORGIA
Health Facility Investments, inc. dba Ansley Pavilion «
Johnson, No. 1:89CF844JOF — United States District
Court, Northern District of Georgia

HAWAII

Beverly Manor, Inc. v. Rubin, No. 85-0052 — United
States District Court, District of Hawaii

Idaho Health Care Association, et al. v. Bowen, No.
88-1425— United States District Court, District of
Idaho

Jeff D., et al. v. Andrus, No. 87-3586— United States
Court of Appeals for the Ninth Circuit

Pope v. Donovan, No. 67738— District Court of the
State of Idaho

ILLINOIS
Chicago Osteopathic Medical Center, et al v Suter, No.
88C 1174—United States District Court, Northern

District of Illinois

App-8
[lUlinois Health Care Association, et al. v. Suter, No. 89C
849— United States District Court, Northern District
of Ilhnois

MICHIGAN

Health Care Association of Michigan, et al v. Depart-
ment of Social Services, et al., No. 89-50063
CA— United States District Court, Western District
of Michigan

MINNESOTA

REM-Bemidji, Inc., et al v. Sandra S. Gardebring,
Commissioner of the Minnesota Department of Human
Services, et al, No. 4-88-Civil-562— United States
Distnet Court, District of Minnesota; dismissed with-
out prejudice December 2, 1988, to permit completion
of edmini ve chall

MISSISSIPPI

Mississippi Health Care Association v. J. Clinton
Smith, No. JA 6-0765(B)— United States District
(consohdated with case below)

Independent Nursing Home Association v J Clinton
Smith, No. JA 6-0731 (W)— (same court as above)

MISSOURI

A.G.1 -Bluff Manor, Inc. v. Michael Reagen, Director,
Missouri Department of Social Services, et al, No.
&5-4015-CV-CO5— United States District Court, Dis-
tnct of Missoun

NEVADA

Hillthaven, Inc, et al v. State of Nevada Department of
Human Resources, et al, No. CV 88-6222— District
Court of the State of Nevada, Washoe County

App-9

NORTH DAKOTA

North Dakota Hospital Association, et al. v. George A.
Sinner, et al, Civ. No. Al-87-126—United States
District Court, Southwestern District of North Dakota

The Ohio Academy of Nursing Homes, Inc. v. Barry, et
al., (88AP-826) —Court of Appeals of the State of Ohio
(opinion June 22, 1989, certification to Ohio Supreme
Court pending).

Oregon Association of Hospitals v. Department of
Human Resources, (CF 88-225-DA)— United States
District Court, District of Oregon -

Volk, et al. v. State, et al., No. A50092— Oregon Court
of Appeals

Francisco, et al. v. Department of Human Resources, et
al., No. 89-6244—United States District Court, Dis-
trict of Oregon

PENNSYLVANIA

West Virginia University Hospitals, Inc. v. Casey, 701
F.Supp. 496 (1988) under advisement on appeal to the
United States Court of Appeals for the Third Circuit

Temple University v. White, et al., Civ. No.
88-6646 — Eastern District of Pennsylvania

Albert Einstein Medical Center, et al. v. White, et al.,
Civ. No. 88-8831—same as above

Frankford Hospital v. Department of Public Welfare, et
al., Civ. No. 88-8927 —same court

Hahnemann University Hospital, et al. v. Department
of Public Welfare, et al., Civ. No. 88-9132—same court

App-10

Hospital Association of Pennsylvania, et al. v. White, et
al., Civ. No. 88-9849—same court

SOUTH CAROLINA

ANCO, Inc., et al. v. State Health and Human Services
Finance Commission, et al., No. —on appeal to
South Carolina Superior Court

WASHINGTON

Folden, et al. v. DSHS, No. C87-802TB— United
States District Court, Western District of Washington

Multicare Medical Center, et al. v. State of Washington,
et al., No. C88-421Z—same court

WISCONSIN

Beverly California Corporation v. Wisconsin Depart-
ment of Health & Social Services, et al., No. 89-
CV -2689— Dane County Circuit Court

St. Michael Hospital of Franciscan Sisters of Mil-
waukee, Inc. v. Thompson, et al., No. 89-
C-620C — United States District Court, Western Dis-
trict of Wisconsin

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0517%3A04. Public record. Not legal advice.