# 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%3A11 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1990 - **Citation:** 496 U.S. 498 ## Text Supreme Court Of The United States OCTOBER TERM, 1988 GERALD L. BALILES, ET AL., Petitioners, Vv THE VIRGINIA HOSPITAL ASSOCIATION, Respondent. BRIEF AMICI CURIAE OF THE STATES OF CONNECTICUT, ALABAMA, ALASKA, ARIZONA, CALIFORNIA, COLORADO, DELAWARE, FLORIDA, GEORGIA, HAWAII, IDAHO, ILLINOIS, INDIANA, IOWA, KANSAS, KENTUCKY, LOUISIANA, MAINE, MARYLAND, MASSACHUSETTS, MICHIGAN, MINNESOTA, MISSISSIPPI, MISSOURI, MONTANA, NEVADA, NEW HAMPSHIRE, NEW JERSEY, NEW MEXICO, NEW YORK. NORTH CAROLINA, NORTH DAKOTA, OHIO, OKLAHOMA, OREGON, PENNSYLVANIA, RHODE ISLAND, SOUTH CAROLINA, SOUTH DAKOTA, TENNESSEE, TEXAS, UTAH, VERMONT, WASHINGTON, WEST VIRGINIA and WYOMING IN SUPPORT OF THE PETITIONER COMMONWEALTH OF VIRGINIA CLARINE NARDI RIDDLE ATTORNEY GENERAL OF CONNECTICUT (Continued Inside) Assistant Attorney General ARNOLD L. MENCHEL Assistant Attorney General KENNETH A. GRAHAM* Assistant Attorney General Office of the Attorney General 55 Elm Street — PO. Box 120 Hartford, Connecticut 06101 *Counsel of Record RICHARD J. LYNCH ADDITIONAL ATTORNEYS GENERAL Ha Kail Kil t it Hla iil State of Illinois Neil F. Hartigan _ Attorney General of Illinois 100 West Randolph Street, 12th Floor Chicago, Illinois 60601 State of Indiana Linley E. Pearson Attorney General of Indiana 219 State House Indianapolis, Indiana 46204 State of Iowa Thomas J. Miller Attorney General of lowa Hoover Building — Second Floor Des Moines, Iowa 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 State of Louisiana William J. Guste, Jr. Attorney General of Louisiana 2-3-4 Loyola Building New Orleans, Louisiana 70112 State of Minnesota Hubert H. Humphrey, III Attorney General of Minnesota 102 State Capito! St. Paul, Minnesota 55155 State of Mike Moore Attorney General of Mississippi P.O. Box 220 Jackson, Mississippi 39205 State of Missouri William L. Webster Attorney General of Missouri Supreme Court Building P.O. Box 899 Jefferson City, Missouri 65102 State of Montana Marc Racicot Attorney General of Montana Justice Building 215 North Sanders Helena, Montana 59620 State of Nevada Brian McKay Attorney General of Nevada Heroes Memorial Building Capitol Complex Carson City, Nevada 89710 State of New Hampshire John P. Arnold Attorney General of New Hampshire 208 State House Annex Concord, New Hampshire 03301 State of New Jersey Peter N. Perretti, Jr. Attorney General of New Jersey Richard J. Hughes Justice Complex, CN112 Trenton, New Jersey 08625 State of New Mexico Hal Stratton Attorney General of New Mexico P.O. Drawer 1508 Santa Fe, New Mexico 87504-1508 \ State of North Dakota Nicholas J. Spaeth Attorney General of North Dakota Office of Attorney General 600 E. Boulevard Bismarck, North Dakota 58505 State of Ohio Anthony J. Celebrezze, Jr. Attorney General of Ohio State Office Tower 30 West Broad Street Columbus, Ohio 43266 State of Oklahoma Robert H. Henry Attorney General of Oklahoma 112 State Capitol Oklahoma City, Oklahoma 73105 State of Oregon David Frohnmayer Attorney General of Oregon Department of Justice 100 Justice Building Salem, Oregon 97310 Pierre, South Dakota 57501-5090 State of Tennessee Charles W. Burson Attorney General of Tennessee 450 James Robertson Parkway Nashville, Tennessee 37219 State of Texas Jim Mattox Attorney General of Texas P.O. Box 12548 Austin, Texas 78711 State of Utah Paul Van Dam Attorney General of Utah 236 State Capitol Salt Lake City, Utah 84114 State of Vermont Jeffrey L. Amestoy Attorney General of Vermont Previlion Office Building State Street Montpelier, Vermont 05602 oe Kenneth Eikenberry Stemmay Gensets oS Washington INTRODUCTION ............ | I. HEALTH CARE PROVIDERS ARE NOT THE INTENDED BENEFICIARIES OF Il. BECAUSE PROVIDERS ARE NOT THE INTENDED BENEFICIARIES OF THE MEDICAID ACT, PROVIDERS LACK STANDING TO SUE STATE MEDICAID AGENCIES IN § 1983 ACTIONS OVER ALLEGED VIOLATIONS OF SAID ACT Ill. NEITHER THE LANGUAGE NOR THE HISTORY OF SECTION 1396 SUPPORTS FINDING THAT PROVIDERS HAVE RIGHTS ENFORCEABLE THROUGH SECTION 1983 .. CONCLUSION APPENDIX 17 1A No. 88-2043 gn The Supreme Court Of The United States OCTOBER TERM, 1988 GERALD L. BALILES, ET AL.., Petitioners, v. THE VIRGINIA HOSPITAL ASSOCIATION, Respondent. BRIEF AMICI CURIAE OF THE STATES OF CONNECTICUT, ALABAMA, ALASKA, ARIZONA, CALIFORNIA, COLORADO, DELAWARE, FLORIDA, GEORGIA, HAWAII, IDAHO, ILLINOIS, INDIANA, IOWA, KANSAS, KENTUCKY, LOUISIANA, MAINE, MARYLAND, MASSACHUSETTS, MICHIGAN, MINNESOTA, MISSISSIPPI, MISSOURI, MONTANA, NEVADA, NEW HAMPSHIRE, NEW JERSEY, NEW MEXICO, NEW YORK, SOUTH CAROLINA, SOUTH DAKOTA, TENNESSEE, TEXAS, UTAH, VERMONT, WASHINGTON, WEST VIRGINIA INTRODUCTION The States of Connecticut, Alabama, Alaska, Arizona, California, Colorado, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, lowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mis- sissippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Washington, West Virginia and Wyoming (hereinafter the ‘Amici States’’) submit this brief in support of the Petitioner Commonwealth of Virginia. The decision of the Fourth Cir- cuit in Baliles v. Virginia Hospital Association, 868 F.2d 653 (4th Cir. 1989), should be reversed. QUESTION PRESENTED ) Whether the Medicaid statutes give health care providers (ie., hospitals and nursing homes) a private right of action enforceable through 42 U.S.C. § 1983 (1982) to challenge state reimbursement decisions in federal court. iv INTEREST OF AMICI CURIAE The State of Connecticut et al. submit this brief as amici curiae in support of the petitioner in this case, Commonwealth of Virginia. Virginia seeks reversal of the decision 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 reverse the decision of the circuit below, the State of Connecticut is joined by 45 additional states.’ The amici states, individually and collectively, have an over- riding interest in the question presented in this case: whether health care service providers have a right enforceable through section 1983 to sue in federal court for a particular level of Medicaid reimbursement. 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, 484 U.S. 806 (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 statutes in 1980? The issue is no less important today than it was in 1987 when a majority of the states, several organizations representing local govern- ments, and the United States Solicitor 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 litigation 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 and the ever-increasing importance to the States of the decision in this case. ' This brief of amici curiae is filed pursuant to Rule 36.4 of the Rules of the Supreme Court. 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 this 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 trea- suries.* Because the total number of state and federal dollars paid annually through medical assistance programs is truly staggering, the burgeoning number of cases has the poten- tial to subject federal and state governments to liability run- ning easily into the hundreds of millions of dollars.‘ Medicaid is a voluntary, cooperative federal-state program that provides funds to reimburse certain costs of medical treat- ment 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 staté’s Medicaid pro- gram must fund institutional medical care, including care in inpatient hospitals, nursing facilities, and intermediate care facilities (collectively referred to as “‘providers’’). The amount ’ See Appendix A for a representative sample of section 1983 to Medicaid reimbursement rates which was appended to the brief of thirty- seven states as amici curiae concerning the Petition for Certiorari in this case. * For example, Volk, et al. v. Oregon, et al, cited in Appendix A, although involving only one year’s reimbursement schedule and involving the nursing home industry but not hospitals, has over $5 million at stake, more than $3 million of which is federal money. The several Pennsylvania cases may entail liability of $80 million. * 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 HEALTH CARE FINANCING ADMIN., DEP’T OF HEALTH AND HUMAN SERVICES, MEDICAID FINANCIAL REPORT: FISCAL 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’ contribu- tion, the total medical assistance budget is over $40 billion per year. of federal-state dollars directed to needy persons through pri- vate, 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 reso- lution. The decision below holds that a health care provider 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 lawsuit. Collectively, hundreds of millions of dollars are involved. The amici states therefore file this brief and urge the Court to reverse the decision of the circuit below. TABLE OF AUTHORITIES Cases Cited: Page(s) Al-Charles, Inc. v. Heintz, 620 F.Supp. 327, 335 SR ie a a eee 6 Almond Pharmacy, Inc. v. Mankowitz, 587 F.Supp. 925, 927-928 (N.D. IIL, E.D. 1984) ............. 6-7 Arden House, Inc. v. Heintz, 612 F.Supp. 81, 84 ee ener at Sy, ee 6 Association of Seat Lift Manufacturers v. Heckler, 619 F.Supp. 1570, 1571 (W.D. Mo., W.D. 1985) .......... 8 Cannon v. University of Chicago, 441 U.S. 677, 690 ee ee ee eae 10 i TEE i ee et 2 Cervoni v. Secretary of H.E.W., 581 F.2d 1010, 1018 ee Pa hh ree 2 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, 484 U.S. 806 (1987) (Coos Bay)...................... v Cort v. Ash, 422 U.S. 66, 78 (1975) ............. 4, 5, 15 Dialysis Centers, Ltd. v. Schweiker, 657 F.2d 135, 139 I eis Seer = Be keep 2 Edwards v. District of Columbia, 821 F.2d 651, 656 Gas Gas SEED ow cece ctawivi dene 10 TABLE OF AUTHORITIES (continued) Cases Cited: : Page(s) Geriatrics, Inc. v. Harris, 640 F.2d 262, 265 (10th Cir. PE CU UUb ob dwav eves eeeberersssccccccss 2 Green v. Cashman, 605 F.2d 945, 946 (6th Cir. EN SEIS Se ee eee 2 Grossman v. Axelrod, 646 F.2d 768, 771 (2nd Cir. EEE ESS eee ee ee 3 In Re Park Nursing Center, Inc., 28 B.R. 793, 805 (Bankr. E.D. Mich., S.D. 1983).............------ 3 Maine v. Thiboutot, 448 U.S. 1 (1980)..........4...... g Massachusetts Mut. Life Ins. Co. v. Russell, 473 US. SUL GL, Ure h Uls dveleeceeecece ess 4 Middlesex County Sewerage Auth. v. Nat'l Sea Clammers Ass’n, 453 U.S. 1, 19 (1981) (Sea SE ae ee 5,9 Minnesota Assoc. of Health Care Facilities v. Minnesota Dept. of Public Welfare, 742 F.2d 442, 446 (8th Cir. 1984), cert. denied, 469 US. Live keine eceeevecvecess 3, 12 Mississippi Hosp. Ass’n., Inc. v. Heckler, 701 F.2d Eee eee 14 Murthy v. Perales, 1989 WL 19136, CC.H. MEDICARE & MEDICAID GUIDE 437,818 (S.D.N-Y. 1989) .... 3 TABLE OF AUTHORITIES (continued) Cases Cited: Page(s) Nebraska Health Care Ass'n v. Dunning, 778 F.2d ie aly ge we pllnl, 16 Northlake Community Hospital v. United States, 654 F.2d 1234, 1242 (7th Cir. 1961) .................. 2 Northwest Airlines, Inc. v. Transport Workers, 451 U.S. Vee Tet sek Cuedend bok ike’ cain MOBI. 4 Oberlander v. Perales, 740 F.2d 116, 121 (2nd Cir. igh ob 544 kb. ale ee Ce ob oe es 2,3 Pennhurst State School and Hospital v. Halderman, ee a 74 ko 0 ped ee videsnamareas passim Pennsylvania Pharmaceutical Ass'n v. Dept. of Public Welfare, 542 F.Supp. 1349, 1355-1356 (W.D. Penn. 5 90 sie. 455 5S hes wi i eS Hes ales 7 Plaza Health Laboratories v. Perales, No. 88-8939 (S.D.N-Y. 1989), aff'd 878 F.2d 577 (2d Cir. | BE ee hE ee Pee 3 SE 84.56 base Vane xsh es udu ks ee meeedeaded:. 2 St. Francis Hospital Center v. Heckler, 714 F.2d 872, 875 (7th Cir. 1983), cert. denied 465 U.S. 1022 I ho Sone re EME Se £6 eh ecw es » 3 St. Joseph Hospital v. Electronic Data Systems, 573 F.Supp. 443, 447 (S.D. Texas 1983) ............... 2 State Dept. of Public Welfare v. Bair, 463 N.E. 2d 1388, 1390-91 (Ind. App. 1 Dist. 1984) ......... 7-8 x TABLE OF AUTHORITIES (continued) Cases Cited: Page(s) Thomas v. Johnston, 557 F.Supp. 879, 903 ee ee rr ere 2-3 Vantage Healthcare v. Virginia Board of Medical Assistance Services, 684 F.Supp. 1329, 1331-1332 (E.D. Va. 1988) ......- 6-6-0 eee eee eee eens 6 Virginia Hospital Association v. Baliles, 868 sh F.2d 658 (4th Cir. 1989) ............... iii, v, 11, 12 Wehunt v. Ledbetter, 875 F.2d 1558, 1563-1566 ee a dasa 0.6. pia h eh wins o's 5, 10, 15 West Allis Memorial Hosp., Inc. v. Bowen, 852 F.2d 251, 255 (7th Cir. 1988).............. 5, 10, 15 Wisconsin Hospital Ass'n v. Reivitz, 733 F.2d 1226, REST OCT TERT Te 13-14 Wright v. City of Roanoke Redevelopment & Housing Auth., 479 U.S. 418, 423-24 (1987) (Roanoke) ... 9, 12 Statutory Provisions: Ss cece ten vsseceeewsanceent 5 ee I, gg occ cence cecorecesumeen 5 pO NO” re er passim sss ccc eene senna passim Administrative Provisions: es a ee oes eere en dnkeaeeeen 12 Se oe eek wt aceene wee Wales 4,12 TABLE OF AUTHORITIES (continued) Administrative Regulations: Page(s) 48 Fed. Reg. 56,046 (1983)........................ 13 48 Fed. Reg. 56,052 (1983)........................ 13 49 Fed. Reg. 46,957 (1984) ........................ vi Preamble to Final Rule, Medicaid Program; Payment for Long-Term Care Facilities and Inpatient Hospital Services, 48 Fed. Reg. 56,046 at GaSe 06s oy eeu ewUeS eS wheiy....... 13 Preamble to Interim Final Rule, Medicaid Program; Payment for Long-Term Care Facility Services and Inpatient Hospita: Services, 46 Fed. Reg. 47,964, 47,066 (1961) ...................... 15-16 Other Authorities: Brief for the United States As Amicus Curiae Supporting Petitioners, at p. 2, citing HEALTH CARE FINANCING ADMIN., DEP’T OF HEALTH AND HUMAN SERVICES, MEDICAID FINANCIAL REPORT: FISCAL YEAR 1986................ vi 126 Cong. Rec. 17,885-86 (1980)................... 13 S. Rep. 96-471, 96th Cong., Ist Sess. 28-29... . 13, 14, 15 SUMMARY OF ARGUMENT It is settled law that health care providers are not the intended beneficiaries of the Medicaid Act. Further, the better reasoned caselaw extends this settled principle of law to its next logical step, to wit, because providers are not the intended beneficiaries of the Medicaid Act, providers lack standing to sue state Medicaid agencies in § 1983 actions over alleged vio- lations of said act. In addition to lacking standing, Congressional intent, as revealed by the language and history of the 1980 amendments to the Medicaid statutes, refutes the circuit court’s conclu- sion that the Medicaid statutes give providers a legally enforceable right to sue states over reimbursement rates under the aegis of section 1983. The Boren Amendment to 42 U.S.C. § 1396(a)(13)A) provides only that states must provide “‘assur- | ances”’ to the Secretary of Health and Human Services that rates are reasonable and adequate. There is no language in the amended statute suggesting enforceable rights. The his- tory of the amendments confirms that Congress intended to decrease federal oversight of state rate-making. Layering fed- eral judicial scrutiny on top of administrative and state court judicial review runs directly counter to that intent. Rather than reducing federal oversight of the state rate-making process and entrusting the states with primary responsibility for those rates, as Congress intended, the result below increases federal oversight and transfers primary rate-setting authority to the courts by means of § 1983 actions. ARGUMENT I. HEALTH CARE PROVIDERS ARE NOT THE INTENDED BENEFICIARIES OF THE SOCIAL SECURITY ACT. The amici states respectfully submit that the point of departure for appropriate analysis of the question presented is the settled principle of law that the intended beneficiaries of the Social Security Act are the recipients of benefits and not health care providers. Silver v. Baggiano, 804 F.2d 1211, 1216-1217 (11th Cir. 1986); Oberlander v. Perales, 740 F.2d 116, 121 (2nd Cir. 1984); Geriatrics, Inc. v. Harris, 640 F.2d 262, 265 (10th Cir. 1981) (nursing home provider “‘is not the intended beneficiary of Medicaid program.”;; Dialysis Centers, Ltd. v. Schweiker, 657 F.2d 135, 139 (7th Cir. 1981) (“the statute manifests no Congressional intent to protect the finan- cial interests of health care providers’’); Northlake Commu- nity Hospital v. United States, 654 F.2d 1234, 1242 (7th Cir. 1981) (‘The provider . . . is not the intended beneficiary of the Medicare program.’”’ (emphasis in original)); Green v. Cashman, 605 F.2d 945, 946 (6th Cir. 1979) (‘We do not find in the statute authorizing Medicare and Medicaid any legis- lative 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.’); Cervoni v. Secretary of H.E.W., 581 F.2d 1010, 1018 (1st Cir. 1978) (phy- sicians not intended beneficiaries under Medicare Program); Case v. Weinberger, 523 F 2d 602, 607 (2nd Cir. 1975) (‘A nursing facility’s ‘need’ for patients has nothing to do with the statutory benefits structure... . The benefits to a nursing home from its participation in Medicaid reimburse- ment result from nothing more than a statutory business rela- tionship.”’); St. Joseph Hospital v. Electronic Data Systems, 573 F.Supp. 443, 447 (S.D. Texas 1983) (case law “clearly estab- lishes that providers are not the intended beneficiaries of the Medicaid Program.”); Thomas v. Johnston, 557 F.Supp. 879, 903 (W.D. Texas 1983) (‘‘[I}t is abundantly clear that it is Medicaid recipients and not Medicaid providers who are the intended beneficiaries of the Medicaid program.”’); In Re Park Nursing Center, Inc., 28 B.R. 793, 805 (Bankr. E.D. Mich., S.D. 1983). To the contrary, health care providers are business enti- ties that made the voluntary business decision to enter the Medicare or Medicaid Program. St. Francis Hospital Center v. Heckler, 714 F.2d 872, 875 (7th Cir. 1983), cert. denied 465 U.S.1022 (1984) (Medicare); Middletown Haven, Inc. v. Maher, C.C.H. MEDICARE & MEDICAID GUIDE 434,249 (Conn. Super. Ct. 1984) (Medicaid). It is self-evident that health care providers are no more the intended beneficiaries of the Medicaid Program than con- struction companies are the intended beneficiaries of govern- ment appropriations to build elementary schools. Rather, both are businesses participating in government programs designed to assist those in need.° If a health care provider is dissatisfied with his future anticipated rate levels, his remedy is to not renew his contract (provider agreement) with the government and to leave the Medicaid Program. Minnesota Assoc. of Health Care Facilities v. Minnesota Dept. of Public Welfare, 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). ° Indeed, the law of the Second Circuit is that providers have no property interest in prospective reimbursement rates. Oberlander v. Perales, 740 F.2d at 120; Grossman v. Axelrod, 646 F.2d 768, 771 (2nd Cir. 1981). See also Murthy v. Perales, 1989 WL 19136, CC.H. MEDICARE & MEDICAID GUIDE 437,818 (S.D.N_Y. 1989) (“the contractual nature of the relation- ship between a Medicaid provider and the State __ indicates] that the provider's interest does not rise to the level of a constitutionally protected property interest.” (Citing Plaza Health Laboratories v. Perales, No. 88-8939 (S.D.N.Y. 1989), aff'd 878 F.2d 577 (2d Cir. 1984) (emphasis in original). II. BECAUSE PROVIDERS ARE NOT THE INTENDED BENEFICIARIES OF THE MEDICAID ACT, PRO- VIDERS LACK STANDING TO SUE STATE MEDICAID AGENCIES IN § 1983 ACTIONS OVER ALLEGED VIOLATIONS OF SAID ACT® As demonstrated infra, it is undisputed that the express wording of 42 U.S.C. § 1396a(a)(13)(A) does not contain a spe- cific grant of a private right of action and merely sets forth certain obligations of the state Medicaid agency to the Secre- tary of Health and Human Services for approval of state Medicaid plans. Indeed the only part of federal Medicaid law that addresses provider challenges to their Medicaid rates is 42 C.F.R. § 447.253, the federal regulation mandating that state Medicaid agencies establish an administrative appeals Poaprereapeer! sear artetreeos sec scteertagemmA - uniform administrative procedure acts generall attend judialel soview of the soceed of egunay nal dnsialens, this results in state court judicial review as well. As we turn to the issue of whether a third party, non- intended beneficiary provider possesses by implication an enforceable right under 42 U.SC. § 1396a(a)(13)(A), the appro- priate point of departure is Cort vu. Ash, 422 US. 66, 78 (1975), which held that, in determining whether a private remedy is * As will be demonstrated herein, being an intended beneficiary is neces- sary to have enforceable rights in a statute. However, even when one is an intended beneficiary (which in this case providers are not), such status in and of itself does not establish enforceable rights. See Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981). ” This evinces federal intent that provider challenges to Medicaid rates be confined to state administrative hearings and subsequent state court judicial review and not be brought in the form of § 1983 actions. See Massa- chusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 147 (“{wjhere a statute expressly provides a particular remedy, a court must be chary of reading others into it.”); Northwest Airlines, Inc. v. Transport Workers, 451 U.S. 77, 97 (1981) (“The presumption that a remedy was deliberately omitted from a statute is strongest when Congress has enacted a comprehensive legislative scheme including an integrated system of procedures for implicit in a statute not providing one, the first relevant factor is whether the plaintiff is ‘‘one of the class for whose especial benefit the statute was enacted . . ”’ (emphasis in original).* Two circuits have recently invoked this Cort v. Ash analysis to reject attempts to imply private rights of action in other sections of the Social Security Act. Wehunt v. Led- better, 875 F.2d 1558, 1563-1566 (11th Cir. 1989) (re: Title IV-D of the Social Security Act, 42 U.S.C. §§ 651 et seq.); West Allis Memorial Hosp., Inc. v. Bowen, 852 F.2d 251, 255 (7th Cir. 1988) (re: 42 U.S.C. § 1395nn(b\2)\(B) of the Medicare fraud por- tion of the Social Security Act). Those cases are most signifi- cant because, like § 1396a(a)(13)(A) in this case, both cases involved sections of the Social Security Act in which it was the government and not private parties charged with enforce- ment responsibility. See 875 F.2d at 1565; 852 F.2d at 255. The West Allis case, involving health care providers and the Medicare program, is of particular interest. eee held that: “{Njeither . . . [the statute] nor its legislative his- tory suggests that Congress intended to provide a private remedy to Medicare providers such as West Allis. . . . The Secretary is charged with the administration of the Medicare Program. .. . Where a statute is framed as a ‘general prohibition or command to a federal agency, as it is in the present case, a private right of action will seldom be implied [citations omitted] . . . it is the Government, and not private parties, which is charged with the enforce- ment of the Medicare program. . . ”’ 852 F.2d at 255. 8 As will be demonstrated herein, the failure of non-intended beneficiary health care providers to pass muster under the Cort vu. Ash interest analysis with respect to § 1396a(a)(13\A) deprives health care providers of standing. In addition, the issue of whether under § 1983 there is any secured right to enforce remains. Footnote 7 supra, Argument III infra, and the case of Middlesex City Sewerage Auth. v. National Sea Clammers, 453 U.S. 1 (1981), demonstrate that health care providers fail on the latter issue as well. Turning to the question presented, substantial caselaw has evolved as to lack of provider standing to sue state Medicaid agencies in § 1983 actions over an alleged violation of § 1396a(a)(13)(A) due to lack of intended beneficiary status. Vantage Healthcare v. Virginia Board of Medical Assistance Services, 684 F.Supp. 1329, 1331-1332 (E.D. Va. 1988) (“‘A number of courts, drawing on the statutory language, have stated that the Medicaid Act was enacted for the express and special benefit of the individual recipients. Such courts have held that health care providers are not the intended benefi- ciaries of the Medicaid Act . . . [describing and rejecting case law permitting providers to bring such §'1983 actions on the basis of perceived “‘parallel interests’ with Medicaid patients as] the extreme end of the spectrum.”); Al-Charles, Inc. v. Heintz, 620 F.Supp. 327, 335 (D.Conn. 1985) (“To the extent that the plaintiff [nursing home] is alleging here that the Title XIX Medicaid program creates an entitlement program for providers of med- ical services, as distinguished from recipients of med- ical services, such a claim has no merit . . Finally, to the extent that the claim rests on the assertion that the plainatiff has some entitlement under the Medicaid program, is an intended beneficiary of the Medicaid program, or has some federally protectable property interest in reimbursement rates determined by the state under the Medicaid program, the claim is insupportable. ’); Arden House, Inc. v. Heintz, 612 F.Supp. 81, 84 (D. Conn. 1985) (‘the test of a proper § 1983 claim is whether the claimant can ‘demonstrate that it has suffered an injury by the adminis- tration of a joint federal-state cooperative program and was an intended beneficiary of that program. [citation omitted]. (emphasis in original). . . . The defendants contend, and the Court finds, that under this analysis, Arden House is not ar. intended beneficiary of the Medicaid program.’”’); Almond Pharmacy, Inc. v. Mankowitz, 587 F.Supp. 925, 927-928 (N.D. Ill., E.D. 1984) (provider’s § 1983 action over Medicaid payment dispute dismissed, with court distinguishing between welfare recipients’ right to sue in federal court as opposed to health care providers who are not the intended beneficiaries of the Medicaid Act and whose claims of alleged violations of the State Plan are enforceable in the state court system); Pennsylvania Pharmaceutical Ass'n v. Dept. of Public Welfare, 542 F.Supp. 1349, 1355-1356 (W.D. Penn. 1982) (‘Congress enacted Title XIX of the Social Security Act to provide health care for the poor and aged, not to subsidize or otherwise to benefit health care providers [citations omitted]. By design the Medicaid program is structured to provide needed medical ser- vices tothe poor. . . . If a provider finds participa- tion in the program unprofitable he should withdraw from the program [citations omitted]... . “[After finding a lack of standing in the providers’ challenge to the sufficiency of Pennsylvania’s reimbursement schedules, the District Court declared:] ‘“The poor, not the health care providers, are the intended bene- ficiaries of the Medicaid Act . . Accordingly, we find that Congress did not vest the . . [provider] plaintiffs with an interest to challenge a state's pay- ment schedules on the ground that these payments are insufficient . . .’); State Dept. of Public Welfare v. Bair, 463 N.E. 2d 1388, 1390-91 (Ind. App. 1 Dist. 1984), (wherein the Indiana Court of Appeals held that providers lack standing to challenge the reimbursement system since the Medicaid program was for the benefit of recipients and not for the benefit of health care providers. The Indiana Court of Appeals declared: ‘‘{I}t is obvious that the purpose of the Medical Assis- tance program is to ensure qualified recipients receive needed medical care and prescription drugs. Any resulting benefit to the plaintiffs is merely incidental and bears no relationship to the purpose of the program. It is clear the legislation here in question is not intended to serve as a welfare program for phar- macists [citations omitted]. The plaintiffs, therefore, have no standing.’”’); See also Association of Seat Lift Manufacturers v. Heckler, 619 F.Supp. 1570, 1571 (W.D. Mo, W.D. 1985) (Medicare providers lack standing to sue Secretary because providers not within ‘‘zone of interest” contemplated by Congress in enacting Medicare Act. Medicare Act not intended to subsi- dize providers). The Amici states respectfully submit that the cases in Medicaid Act was enacted to provide health care to the indi- gent institutionalized elderly, who are the intended benefi- ciaries, and not to enrich health care providers, who are not the intended beneficiaries of the Medicaid Program. Not only are the providers, who are not the intended bene- ficiaries of the Act, in this case attempting to do something to which they are not legally entitled, but the ironic and socially disastrous results that would ensue if they succeed would be a nationwide disruption of the Medicaid Program via a flood of § 1983 actions against state Medicaid agencies and the resultant slowdown if not diversion of the valuable, scarce taxpayer dollars set aside for the care of Title XIX Medicaid patients, the true intended beneficiaries of the Medicaid Program. III. NEITHER THE LANGUAGE NOR THE HISTORY 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 U.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 conferred by federal statutes. One year after Thiboutot, this 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 Clammers), citing Pennhurst State School and Hospital v. Hal- derman, 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 US. at 28; see also Wright v. City of Roanoke Redevelop- ment & Housing Auth., 479 U.S. 418, 423-24 (1987) (Roanoke). Clearly, Congress did not intend to grant enforceable rights to providers of health care services when it amended the Medicaid statutes in 1980. In Pennhurst the Court concluded that whether Congress intended to create rights enforceable under the aegis of sec- tion 1983 must be determined from the language and history of the act if the act does not expressly provide for such actions. In this case, the language is not the right- or duty-creating ® 42 USC. § 1983 (1982) provides, in pertinent part: Every person who, under color of any statute, ordinance, regula- tions, 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 language a court must find to support a claim of rights enforceable under section 1983. In addition, the legislative history demonstrates that Congress intended to increase state autonomy and decrease federal oversight in the Medicaid reim- bursement rate-setting process. A. The language of section 1396 is not rights-creating language. The act under consideration in Pennhurst referred to ‘“rights’’ accorded to the intended beneficiaries of the act and “obligations’’ on the part of the states. Despite that language, this Court concluded Congress had not intended to create enforceable rights against the states. Rather, the Court deter- mined, the language in question was merely precatory, a ‘““nudge’’ in Congress’ preferred direction. Pennhurst, 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 enforce- able rights than is the language at issue in Pennhurst. Sec- tion 1396a(a)(13)(A) does not contain a specific grant of a private right of action. See Wehunt, 875 F.2d 1558 (11th Cir. 1989) and West Allis, 852 F.2d 251 (7th Cir. 1988), analyzing similar such sections of the Social Security Act. Nor does it read like a statute designed to “dictate specifically what the relevant government officials may and may not do.’ Edwards uv. 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), sec- tion 1396a(a13)A) permits participating states to devise reimbursement rates ‘which the State finds, and makes assur- ances satisfactory to the Secretary, are reasonable and ade- quate 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 developed by the State.” By its terms, therefore, section 1396a(a)13)A) vests rate-making discretion 10 in the state, subject to the condition that it makes ‘‘assur- ances satisfactory to the Secretary.’ As the Pennhurst Court noted in the context 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 statu- tory requirement of assurances by the states confers any right on providers, it is only the right to have those assurances provided to the Secretary. The provision of the assurances then engages the machinery of the Secretary’s review. The Secre- tary examines the assurances, the rates and the supporting data to determine whether the rates meet the statutory stan- dard. 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 sub- stitute themselves and the courts for the state, under the scru- tiny 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. This Fourth Cir- cuit holding flies in the face of the limited language of ‘‘assur- ances’’ this Court has previously found questionable 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 insistence 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. [Legislation enacted pursuant to the spending power is much in the nature of a contract... . The legitimacy of Congress’ power to legislate under the A “a 11 spending power .. . rests 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 US. at 17 (citations omitted). The lower court believed this concern is “‘allay[ed]’’ 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- 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. Tb 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 are voluntary participants in the Medicaid pro- gram. See 42 C.F.R. § 447.204 (1985); Minnesota Assoc. of Health Care Facilities v. Minnesota Dept. of Public Welfare, 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 providers may challenge reimbursement rates. 42 C.F.R. § 447.253(c) (1985). However, the Secretary, whose interpretation 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 12 dissatisfied providers. 48 Fed. Reg. 56,052 (1983), see also Preamble to Final Rule, Medicaid Program; Payment for Long- Term Care Facilities and Inpatient Hospital Services, 48 Fed. Reg. 56,046 at 56,050 (1983). B. The history of section 1396 supports a result directly contrary to that reached in the circuit court. By the earlier reference to the increasing numbers of suits challenging state reimbursement rates, amici do not merely suggest the federal courts will be met with a flood of litiga- tion, although those waters are unquestionably rising. The point, rather, is that year-by-year, provider-by-provider litiga- tion over each aspect of each state’s plan is becoming the rule, a reality manifestly inconsistent with Congress’ unmistak- able intent to reduce rather than increase federal oversight of the rate-making process. That intent is conspicuous in the legislative history of the 1980 amendments 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. Rep. 96-471, 96th Cong., 1st Sess. 28-29.'’ The amendment ‘represented a significant change in the federal [reimburse- ment] 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 10N ow embodied in 42 U.SC. § 1396a(a)13A) (1986). 1 There was no Senate or House report accompanying the Boren Amend- ment in 1980. Floor discussion of the Amendment, however, makes clear that it was drawn from a bill reported the previous year by the Senate Finance Committee. See 126 Cong. Rec. 17,885-86 (1980). The Boren Amend- ment does not differ materially from the provision contained in the 1979 bill. See S.Rep. 96-471, supra, at 157-58. The text reported here is from the Senate report that accompanied the 1979 bill. 13 1226, 1228 (7th Cir. 1984). Congress chose to “‘give[ ] the States flexibility and discretion. . . to formulate their own methods 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 ade- quate,’ Congress “‘expect{ed] that the Secretary will keep regulatory and other requirements to that minimum neces- sary to assure proper accountability, and not overburden the States and facilities with marginal but massive paperwork requirements.” S. Rep. 96-471, at 29. It is distinctly ironic that a Congressional effort to reduce cumbersome federal oversight of state programs and to contain Medicaid costs has become the impetus for a mounting tide of litigation and potential liability. In the opinion below, the Fourth Circuit Court of Appeals acknowledged that, in Pennhurst, this Court left no doubt that Congressional intent is the ‘touchstone’ of enforceable rights inquiry. The lower court’s discussion of that intent, however, is largely limited to statements that merely reiterate the stat- utory 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 parallel and equally important intent of the Boren Amendment 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 inevitably more intru- sive effects of piecemeal litigation with Congress’ indisputable intent to increase state autonomy in ratesetting.'” '? Rather than having to defend its rates once, before a federal administra- tive agency, the states will now be forced to defend piecemeal as each dis- gruntled facility or band of facilities looks for the most sympathetic forum. For example, the Commonwealth of Pennsylvania is currently embroiled in six separate challenges. See Appendix A. 14 Based on its conclusion that Congress ‘‘intended no close scrutiny by the Secretary [of Health and Human Services]”’ of assurances by the states, the court below reasoned that the only way to effectuate the ‘‘guarantee’’ of reasonable and ade- quate rates is to allow providers to bring suit. 868 F.2d at 659. This deduction is based on a faulty reading of Congressional intent and an unjustified denigration of the role of the Secre- tary. The exclusive express enforcement mechanism of § 1396a(a)(13)(A) is the Secretary's authority to approve or disapprove state Medicaid plans. The previously discussed Wehunt and West Allis circuit court decisions apply this Court’s Cort v. Ash decision to similar sections of the Social Security Act that were construed to be exclusively enforced by the government and held not to create enforceable rights by private parties. 875 F.2d 1558 (11th Cir. 1989); 852 F.2d 251 (7th Cir. 1988). The circuit court correctly noted that Congress intended that state assurances would be considered satisfactory in the absence of a formal finding to the contrary by the Secretary. However, the court ignored the equally plain Congressional insistence on “‘proper accountability”’ to ensure that payment rates are, in fact, reasonably adequate to meet the costs which must be incuired by efficiently and economically operated facilities in order to provide care and services in conformity with minimal state and federal quality of care requirements and insure access to health care by Medicaid beneficiaries. See S. Rep. 96-471, at 29. The court’s suggestion that Con- gress intended the Secretary to become a mere rubber stamp for 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 13See eg. 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 least annually and whenever they propose significantly to revise methods (continued) 15 Secretary’s actions in reviewing state plans. See, e.g., Nebraska Health Care Ass'n v. Dunning, 778 F.2d 1291 (8th Cir. 1985), cert. denied, 497 U.S. 1063 (1987) (discussing Secretary’s dis- approval of part of Nebraska’s plan for 1983-84). Congress intended to decrease, not increase, federal over- sight of the rate-setting process. To that end Congress cut back federal administrative supervision to a level it deemed ade- quate to ensure proper accountability. The court of appeals has undone Congress’ balance by layering judicial scrutiny onto administrative oversight. Supervision by litigation will almost inevitably entail greater delay and disruption in the administration of state Medicaid plans than would result from oversight by the Secretary even under the more demanding pre-Boren Amendment requirements. Further, it simply makes no sense to conclude that Congress intended to decrease federal oversight by the executive branch agency with the expertise in the operation of the Medicaid program and instead sought to give an increased role to the federal courts of the judicial branch for oversight of the state rate-setting process for healthcare providers. That result is manifestly inconsis- tent with Congress’ intent and therefore erroneous. 13 (continued) for determining payment rates. When amending plans or submitting new ones, states must submit related information on short-term effects and, mation a State submits with respect to these items to determine whether it is reasonable to justify acceptance of the State’s assurance.’ /bid. CONCLUSION There is no valid public policy reason for health care providers, who are not the intended beneficiaries of the Act, to disrupt the Medicaid Program through § 1983 actions against state Medicaid agencies. To the contrary, 42 C.F.R. § 447.253 provides providers with e. viable, efficient adminis- trative remedy with subsequent state court judicial review to pursue their Medicaid rate disputes. Further, § 1396a(a)(13)(A) vests the Secretary with exclusive enforce- ment power over states’ assurances concerning their state Medicaid plans. Failure to reverse the underlying circuit deci- sion would disrupt this federal regulatory scheme and only delay if not divert the delivery of Medicaid tax dollars to the intended beneficiaries of the Medicaid Program. For the reasons stated above, this Court should reverse the underlying circuit decision. Respectfully submitted, CLARINE NARDI RIDDLE ATTORNEY GENERAL OF CONNECTICUT RICHARD J. LYNCH Assistant Attorney General ARNOLD I. MENCHEL Assistant Attorney General KENNETH A. GRAHAM* Assistant Attorney General 55 Elm Street, Fourth Floor P.O. Box 120 Hartford, CT 06101 (203) 566-7098 Attorneys for Amicus Curiae State of Connecticut *Counsel of Record (Additional Attorneys General listed on following pages.) 17 ADDITIONAL ATTORNEYS GENERAL State of Alabama Don Siegelman Attorney General of Alabama State House 11 South Union Street Montgomery, Alabama 36102 State of Alaska Douglas B. Baily Attorney General of Alaska Pouch K, State Capitol Juneau, Alaska 99811 State of Arizona Robert K. Corbin Attorney General of Arizona 1275 West Washington Phoenix, Arizona 85007 State of California John K. Van de Kamp Attorney General of California 1515 K Street, Suite 638 Sacramento, California 95814 State of Colorado Duane Woodard Attorney General of Colorado 1525 Sherman Street — Second Floor Denver, Colorado 80203 State of Delaware Charles M. Oberly, III Attorney General of Delaware 820 North French Street, 7th Floor Wilmington, Delaware 19801 18 State of Florida Robert A. Butterworth Attorney General of Florida The Capitol Tallahassee, Florida 32399-1050 State of Georgia Michael J. Bowers Attorney General of Georgia 132 State Judicial Building Atlanta, Georgia 30334 State of Hawaii Warren Price, III Attorney General of Hawaii State Capitol, Room 405 Honolulu, Hawaii 96813 State of Idaho Jim Jones Attorney General of Idaho State House Boise, Idaho 83720 State of Illinois Neil F. Hartigan Attorney General of Illinois 100 West Randolph Street, 12th Floor Chicago, Illinois 60601 State of Indiana Linley E. Pearson Attorney General of Indiana 219 State House Indianapolis, Indiana 46204 19 State of Iowa Thomas J. Miller Attorney General of Iowa Hoover Building — Second Floor Des Moines, Iowa 50319 State of Kansas Robert T. Attorney General of Kansas Judicial Center — Second Floor Topeka, Kansas 66612 Commonwealth of Kentucky Frederic J. Cowa’. Attorney General + Kentucky State Capitol, Row 1 116 Frankfort, Kentucky 40601 State of Louisiana William J. Guste, Jr. Attorney General of Louisiana 2-3-4 Loyola Building New Orleans, Louisiana 70112 State of Maine James E. Tierney Attorney General of Maine State House, Station 6 Augusta, Maine 04333 State of Maryland J. Joseph Curran, Jr. Attorney General of Maryland 200 St. Paul Place Baltimore, Maryland 21202 Commonwealth of Massachusetts James M. Shannon Attorney General of Massachusetts 1 Ashburton Place, 20th Floor Boston, Massachusetts 02108 State of Michigan Frank J. Kelley Attorney General of Michigan Law Building Lansing, Michigan 48913 State of Minnesota | Hubert H. Humphrey, III Attorney General of Minnesota 102 State Capitol St. Paul, Minnesota 55155 State of Mississippi Mike Moore - Attorney General of Mississippi P.O. Box 220 Jackson, Mississippi 39205 State of Missouri William L. Webster Attorney General of Missouri Supreme Court Building P.O. Box 899 Jefferson City, Missouri 65102 State of Montana Marc Racicot Attorney General of Montana Justice Building 215 North Sanders Helena, Montana 59620 21 State of Nevada Brian McKay Attorney General of Nevada Heroes Memorial Building Capitol Complex Carson City, Nevada 89710 State of New Hampshire John P. Arnold Attorney General of New Hampshire 208 State House Annex Concord, New Hampshire 03301 State of New Jersey Peter N. Perretti, Jr. Attorney General of New Jersey Richard J. Hughes Justice Complex, CN112 Trenton, New Jersey 08625 State of New Mexico Hal Stratton Attorney General of New Mexico P.O. Drawer 1508 : Santa Fe, New Mexico 87504-1508 State of New York Robert Abrams Attorney General of New York The Capitol Albany, New York 12224 State of North Carolina Lacy H. Thronburg Attorney General of North Carolina P.O. Box 629 Raleigh, North Carolina 27602-0629 State of North Dakota Nicholas J. Spaeth Attorney General of North Dakota Office of Attorney General 600 E. Boulevard Bismarck, North Dakota 58505 State of Ohio Anthony J. Celebrezze, Jr. Attorney General of Ohio State Office Tower 30 West Broad Street Columbus, Ohio 43266 State of Oklahoma Robert H. Henry Attorney General of Oklahoma 112 State Capitol Oklahoma City, Oklahoma 73105 Pierre, South Dakota 57501-5090 State of Tennessee Charles W. Burson Attorney General of Tennessee 450 James Robertson Parkway Nashville, Tennessee 37219 State of Texas Jim Mattox Attorney General of Texas P.O. Box 12548 Austin, Texas 78711 State of Utah Paul Van Dam Attorney General of Utah 236 State Capitol Salt Lake City, Utah 84114 State of Vermont Jeffrey L. Amestoy Attorney General of Vermont Pavilion Office Building State Street Montpelier, Vermont 05602 et ee State of Washington Kenneth Eikenberry Attorney General of Washington Highways — Licenses Bldg., PB 71 Olympia, Washington 98504 State of West Virginia Charles G. Brown Attorney General of West Virginia 26E, State Capitol Charleston, West Virginia 25305 State of Wyoming Joseph B. Meyer Attorney General of Wyoming 123 State Capitol Cheyenne, Wyoming 82002 No. 88-2043 In The Supreme Court Of Che United States OCTOBER TERM, 1988 GERALD L. BALILES, ET AL.., Petitioners, v. THE VIRGINIA HOSPITAL ASSOCIATION, Respondent. APPENDIX TO BRIEF OF AMICI CURIAE APPENDIX A PENDING LITIGATION AT TIME OF PETITION FOR WRIT OF CERTIORARI Colorado: Amisub (PSL) Inc., State v. State of Colorado, Depart- ment of Social Services, No. 88-2482 — United States Court of Appeals for the Tenth Circuit Delaware: 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 v. 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: 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 1A Illinois Health Care Association, et al. v. Suter, No. 89C 849 — United States District Court, Northern District of Illinoi 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 District Court, District of Minnesota; dis- missed without prejudice December 2, 1988, to permit completion of administrative challenge Mississippi: Mississippi Health Care Association v. J. Clinton Smith, No. JA 6-0765(B) — United States District Court, Southern District of Mississippi, Jackson Div. (consolidated with case below) Independent Nursing Home Association v. J. Clinton Smith, No. JA 6-0731 (W) — (same court as above) Missouri: A.G.I-Bluff Manor, Inc. v. Michael Reagen, Director, Missouri Department of Social Services et ai, No. 85-4015-CV-CO5 — United States District Court, District of Missouri Nevada: Hillhaven, 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 2A 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 Ohio: 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: 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 Francisca, et al. v. Department of Human Resources, et al, No. 89-6244 — United States District Court, District 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 Hospital Association of Pennsylvania, et al. v. White, et al, Civ. No. 88-9849 — same court 3A 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. vu. 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: Beverely California Corporation v. Wisconsin Department of Health & Social Services, et al, No. 89-CV-2689 — Dane County Circuit Court St. Michael Hospital of Franciscan Sisters of Milwaukee, Inc. v. Thompson, et al, No. 89-C-620C — United States District Court, Western District of Wisconsin 4A --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0517%3A11. Public record. Not legal advice.