Opposition Brief — Haveman v. Westside Mothers

No. 02-277

IN THE

Supreme Court of the United States

JAMES K. HAVEMAN, JR., Director,

Michigan Department of Community Health,

Petitioner,

Vv

WESTSIDE MOTHERS,

a Michigan Welfare Rights Organization, et al.,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COuRT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF IN OPPOSITION

JENNIFER R. CLARKE THOMAS K. GILHOOL

Counsel of Record PuBLic INTEREST LAW CENTER

BRENT A. HANNAFAN OF PHILADELPHIA

DECHERT PRICE & RHOADS 125 South 9" Street

4000 Bell Atlantic Tower Suite 700

1717 Arch Street Philadelphia, PA 19107

Philadelphia, PA 19103-2793 (215) 627-7100

(215) 994-4000

JANE PERKINS

NATIONAL HEALTH LAW PROGRAM

Second Floor

211 North Columbia Street

Chapel Hill, NC 27514

(919) 968-6308

Attorneys for Respondents

(Additional Counsel Listed on Signature Page)

i

QUESTION PRESENTED

Whether the Court of Appeals for the Sixth Circuit

correctly “reverse[d] on all issues presented” an order of a

district court which dismissed plaintiffs’ Complaint based

on the district court’s holding that Title XIX of the Social

Security Act is not Supreme federal law, enforceable in

federal court.

i

TABLE OF CONTENTS

Guestion Prema io 550s aes

Tebble of COI 6 kc 0 oh 0 0800 0c xcnds eed ebeees

Table of Cited Authorities ..................05.

Counter-Statement of the Statutes Involved ......

Counter-Statement of the Case .................

Reasons for Denying the Petition ...............

Conclusion

Page

19

lil

TABLE OF CITED AUTHORITIES

Page

Cases:

Agency for Health Care Administration

v. Pittman by Pope,

Ue DUPE U OSS ov vies es esstescucesscs 13

Alexander A. v. Novello,

No. 99-CV-8418, 2002 WL

31045299 (E.D.N.Y. Sept. 12, 2002) .......... 13

Antrican v. Buell,

158 F. Supp. 2d 663 (E.D.N.C. 2001) ......... 13

Antrican v. Odom et al.,

are Foe 470 (9 Cit, 2002)... acess 7, ta

Arkansas Medical Society v. Reynolds,

ek) 13, 18

Barnes v. Gorman,

ee Se 2 ee ky) an 8

Beal v. Doe,

ME PROT ED occ ccces ese scccnvevescs 12

Bell v. New Jersey,

Be Bee ee a re 8

Bennett v. Kentucky Department of Education,

PSs POP ERPMES cose eee ei ee leuse sess 9

iv

Cited Authorities

Page

Blessing v. Freestone,

S20 U.S. FER CIPFT) 2 naccuss 6, 10, 12, 14, 15, 16, 17

Bond v. Stanton,

GSS FOG TOG CCE. TGGD) voc cv eecnvevedees 13

Bonnie L. v. Bush,

180 F. Supp. 2d 1321 (S.D. Fla. 2001) ........ 13

Bryson v. Shumway,

No. 02-1059, 2002 WL 31303123

eh ge 8 Be Ae re renee eT eee 12-13

Carr v. Wilson-Coker,

203 FED. OG GD. COMM. Be) cas ceeavi veces id

Chappell by Savage v. Bradley,

834 F. Supp. 1030 (N.D. Ill. 1993) ........... 14

Charlie H. v. Whitman,

83 F. Supp. 2d 476 (D.N.J. 2000) ............ 14

Chisholm v. Hood,

133 F. Supp. 2d 894 (E.D. La. 2001) .......... 14

Clark v. Coye,

DOT F206 Fee CO Ge. VIED: 0509 niin veds 14

Clark v. Kizer,

758 F. Supp. 572 (E.D. Cal. 1990) ............ 14

Vv

Cited Authorities

Page

Dajour B. v. The City of New York,

No. 00 CIV. 2044, 2001 WL 830674

aR Es PU Bae OED ond ed eccdveesccekens 13-14

Dominguez v. Milliken,

No. G-198-72 CA (W.D. Mich. Jan. 8, 1973)... 14

Evergreen Presbyterian Ministries Inc. v. Hood,

239 F.36 SOB (5th Ci, 2000) ow cc cece sncccss 17

Frazar v. Gilbert,

300 F.3d 530 (Sth Cir. 2002) ........... 7, 14, 16, 17

Frew v. Gilbert,

109 F. Supp. 2d 579 (E.D. Tex. 2000) ......... 14

GL. v. Stangler,

873 F. Supp. 252 (W.D. Mo. 1994) ........... 14

Gonzaga University v. Doe,

.. Vas» 122 SCO 2968 008) .... 5.000. 6, 10

Green v. Mansour,

SIG Sider MO LEMOET, va os ec dnadeeseddeee dens 8

Harris v. McRae,

Coe Ue BET CED. bse nie btiivi hes

Havens Realty Corporation v. Coleman,

Oe Sha ae COED 5-6-4k spb oe bees Cie meeenes 18

vi

Cited Authorities

Hunt v. Washington Apple Advertising Commission,

433 US. SES CUATES sve accVedaneveovdiveses

Hunter v. Chiles,

944 F. Supp. 914 (S.D. Fla. 1996) ............

Idaho v. Coeur d'Alene Tribe of Idaho,

SSi UB BEE CEG eis CS eis

Jeremy and Darvin J. v. Morse,

No. 96-48 (E.D. Ky. Mar. 26, 1997) ..........

John B. v. Menke,

176 F. Supp. 2d 786 (M.D. Tenn. 2001) .......

King v. Smith,

358 UG. FIP Ce vi akias esi eseesseeeees

Koslow v. Commonwealth of Pennsylvania,

S02 F386 TOE CSG: SOMO Sec bee ses sieves

Maher v. White,

No. CIV. A. 90-4674, 1992 WL 122912

CED. FE: SUG A, SOO seer kdete dca cawrters

Martin v. Taft, No. C-2-89-00362,

2002 WL 31101079

(B.D. Gabe GE. TE, ee hk eden cidn eens

Page

18

14

14

14

11

14

13

vii

Cited Authorities

Page

Memisovski v. Patla,

No. 92 C 1982, 2001 WL 1249615

Ce Se ED ob k's bce hkbdenewedces 13

Miller by Miller v. Whitburn,

IO F.98 U515 C7 Cie, 1993S) 2. cc ccccccceses 13

Missouri Care Association v. Cross,

294 F.3d 1034 (8th Cir. 2002) ............... 7

Mitchell v. Johnston,

Poe Figg Lt | errr 13,17

Montoya v. Johnston,

654 F. Supp. 511 (W.D. Tex. 1987) ........... 14

N.Y. City Coalition to End Lead Poisoning

v. Giuliani,

720 N.Y.S.2d 298 (N.Y. Sup. Ct. 2000) ........ 14

Odom y. Antrican, No. 02-220,

71 U.S.L.W. 3138, 2002 WL 1906621

I I Re os on akc dae saan és 7

Oklahoma Chapter of the American Academy

of Pediatrics v. Fogarty,

205 F. Supp. 2d 1265 (N.D. Okla. 2002) ....... 13

Oklahoma v. U.S. Civil Service Commission,

Pare es BEF COOEE bn tha Wel Ralsekaieide ves i)

ee eee

Vili

Cited Authorities

Page

Pediatric Specialty Care, Incorporated v.

Arkansas Department of Human Services,

293 F358 S72 CO CA. BOGE) oc escccccvcscens 13

Pennhurst State School & Hospital v. Halderman,

ee Re err ee Te 9, 10, 11, 16

Pereira by Pereira v. Kozlowski,

996 F.2d 723 (4th Cir. 1993) ............000. 13

Philadelphia Welfare Rights Organization v. Shapp,

ee Be ae Be errr ey ee 13

Pittman by Pope v. Secretary of Florida

Department of Health and Rehab. Services,

998 F.2d 887 (llth Cir. 1993) ............... 13

Powers v. Ohio,

GP PP EN SE) Se cisier ese ee erdeints 18

Quern v. Mandley,

a SCI TD se ide rvitivesiveiontin 9

Risinger v. Concannon, |

117 F. Supp.2d 61 (D. Me. 2000) ............. 14

Rosado v. Wyman,

Be ee TOE Sad bbe cenereuspnccens 9

Salazar v. District of Columbia,

954 F. Supp. 278 (D.D.C. 1996) ............. 14

ix

Cited Authorities

Sanders v. Lewis,

No. 2:92-0353, 1995 WL 228308

(S.D. W. Va. Mar. 1, 1995) ..............

South Dakota v. Dole,

SES U.S. 203 (ISBT) 2... cece ccc cccccccs

Stanton v. Bond,

504 F.2d 1246 (7th Cir. 1974) ...........

Suter v. Artist M.,

RE Rt 7)

Telespectrum, Inc. v. Public Service

Commission of Ky.,

227 F.3d 414 (6th Cir. 2000) ............

Thornburgh v. Phila. Welfare Rights Org.,

444 U.S. 1026 (1980) ..................

Verizon v. Public Service Commission of Maryland,

sa, Wido...» hae & CL. 1799 see

Warth v. Seldin,

S52 UB. FIO CIGTS) oo. cc cercccvaes.

Wellington v. District of Columbia,

851 F. Supp. 1 (D.D.C. 1994) ............

Wilder v. Virginia Hospital Association,

496 U.S. 498 (1990) ...................

Page

13

14

18

14

18

x

Cited Authorities

Page

Will v. Michigan Department of State Police,

oe me | Pe eerer creer Terri eee 8

Woodruff v. Lavine,

399 F. Supp. 1008 (S.D.N.Y. 1975) ........... 14

Ex parte Young,

yg 8 BT ere 5, 7, 8, 16

Statutes:

Te Geen BI no ha annenaeacess + sdeaents 14

42 U.S.C. § 1396a(a)(8) ........ 1, 3, 10, 11, 13, 16, 17

Gk Pom Be 00 68 eereerer re rere 10, 13, 17

42 U.S.C. § SSDGRRAMIGMA) oovcen cacvcceceeess 1,3

EE Fame Se eer er TTT Terror 13

42 U.S.C. § 1396a(aXSOMA) .........:.... ye me

ee a re ee 2

ge MR ere oS

ON Bee a ce aa 2,15

42 U.S.C. § 1396d(a)(4)(B) ........ h, Dy. ty bes CA

Muse 61m. 4. AS 17

xi

Cited Authorities

Page

ee eee) rn hyd a PO 14; 33, TF

ge | ree eee 13

aS eS ene 3, 5, 6, 10, 12, 16

Omnibus Budget Reconciliation Act of 1989,

Pub. L. No. 101-239, 1989 U.S.C.C.A.N.

ok Be 3,4

Social Security Amendments of 1967,

Pub. L. No. 90-248, 1967 U.S.C.C.A.N.

re a NG 5 oo 05k he i a vos 3

Regulations:

hess OR le | 17

H.R. Rep. No. 101-247, at 398-401 (1989),

reprinted in 1989 U.S.C.C.A.N.1906, 2124-27 ... 4,18

Other Authorities:

Brief for the United States as Amicus Curiae

Supporting Petitioners at 18-23, Gonzaga

Univ. v. Doe,_-U.S.__, 122 S. Ct. 2268 (2002)

eg: AEN ae ener a: Oe et oan arn aed 6

Kaiser Commission on Medicaid and the Uninsured,

The Medicaid Program at a Glance

(January 2001) ..... Peer reer ot et ree eee 4

1

COUNTER-STATEMENT OF THE

STATUTES INVOLVED

Petitioner omits from his Statement (Pet. at 1-2) and from

his Appendix (112a-144a) four of the five provisions of

Title XIX of the Social Security Act which have routinely been

held to create rights for the children enrolled in Medical

Assistance, their families and organizations of pediatric

professionals who serve them. The Court of Appeals for the

Sixth Circuit specifically grounded its holdings in the omitted

provisions. (App. 17a-18a, 19a). Two omitted provisions,

42 U.S.C. § 1396a(a)(8) and § 1396a(a)(10)(A), say:

A State plan for medical assistance must . . .

(8) provide ... that such assistance shall be

furnished with reasonable promptness to all eligible

individuals;

(10) provide —

(A) for making medical assistance

available, including at least the care and

services listed in paragraphs (1) through

(5)... of Section 1396d(a) of this title, to

—(i) all individuals. . . [who are eligible].

The “care and services” referred to in § 1396a(a)(10)(A) and

made mandatory upon participating States are specified in the

third provision that Petitioner omits, 42 U.S.C. § 1396d(a)(4)(B).

It says:

The term “medical assistance” means payment of

part or all of the cost of the following care and

2

services ... — (4)... — (B) early and periodic

screening, diagnostic, and treatment services (as

defined in subsection (r) of this section) for

individuals who are eligible under the plan and

are under the age of 21;....

Petitioner does cite and append 42 U.S.C. § 1396d(r), entitled

“Early and periodic screening, diagnostic, and treatment

services.” This section details the healthcare services to which

each eligible child is entitled. (App. 122a-124a).' Petitioner

omits also the fifth provision of Title XIX, on which the

Court of Appeals’ decision is grounded (App. 19a), 42 U.S.C.

§ 1396a(a)(30)(A). It says:

A State plan for medical assistance must — (30)(A)

provide such methods and procedures relating to the

utilization of, and the payment for, care and services

available . . . as may be necessary . . . to assure that

payments. . . are sufficient to enlist enough providers

so that care and services are available under the plan

at least to the extent that such care and services are

available to the general population in the geographic

area;....

COUNTER-STATEMENT OF THE CASE

1. Petitioner asks the Court to review the unanimous decision

of a panel of the Court of Appeals for the Sixth Circuit

composed of Judges Danny J. Boggs, Karen Nelson Moore,

and former Chief Judge Gilbert S. Merritt. The opinion,

written by Judge Merritt, reversed “on all issues presented”

1. While Petitioner cites and appends §§ 1396a(a)(43), 1396c

and others, the Court of Appeals did not rest its decision upon them.

(App. 17a-18a, 19a).

3

a 95-page district court decision which had departed from

the accepted and usual course of judicial proceedings to

dismiss a commonly adjudicated claim for prospective

injunctive relief to obtain the delivery of children’s healthcare

as required by Title XIX of the Social Security Act of the

United States and 42 U.S.C. § 1983.

2. Respondents allege that Petitioner failed to provide

healthcare benefits to children as required, inter alia,

alleging violations of Sections 1396a(a)(8), 1396a(a)(10)(A),

1396a(a)(30)(A), 1396d(a)(4)(B), and 1396d(r) of Title XIX

of the Social Security Act, known as Medicaid. Medicaid is

a 37-year old federal-state cooperative funding program.

Participation in the program is voluntary, but once a state

decides to accept federal funds, the requirements of the statute

become binding on the state. Each state is required to submit

a state plan which acknowledges the binding obligations.

In 1967, Congress amended Medicaid to impose the

explicit and mandatory children’s healthcare benefit upon

every state choosing to accept federal Title XIX funds.

See Social Security Amendments of 1967, Pub. L. No. 90-

248, 1967 U.S.C.C.A.N. (81 Stat. 821) 923. In 1989,

Congress expanded the income criteria for eligibility upward

from public assistance levels to include all poor children and

children in families with incomes up to 133% of poverty

level for most ages and 185% for infants. At the same time,

Congress statutorily specified the required elements of

the children’s healthcare benefit in 42 U.S.C. § 1396d(r).

See Omnibus Budget Reconciliation Act of 1989, Pub. L.

No. 101-239, 1989 U.S.C.C.A.N. (103 Stat.) 2262-2263. Title

XIX refers to the children’s healthcare benefits as “early and

periodic screening, diagnostic and treatment services,”

sometimes abbreviated as EPSDT.

4

“The EPSDT benefit is, in effect, the nation’s largest

preventive health program for children.” H.R. Rep. No. 101-

247, at 398-401 (1989), reprinted in 1989 U.S.C.C.A.N.

1906, 2124-27. Today, some 20.7 million children have been

determined by the States to be eligible and have been enrolled

in EPSDT; one out of every four children in the nation.

See Kaiser Commission on Medicaid and the Uninsured,

The Medicaid Program at a Glance (January 2001), available

at www.kff.org/content/2001/2004b. Michigan has

determined that approximately 800,000 children are eligible

for EPSDT and have been enrolled therein. (Compl. at § 37,

App. 163a).?

3. The district court dismissed the Complaint on grounds

not raised or argued by the defendants. (Petitioner admits

this fact at page 4 of the Petition.) Instead, the district court

premised its various rulings upon its erroneous conclusion

that because Congress enacted Title XIX of the Social

Security Act under its Spending Clause powers, that

statute is not Supreme federal law. (See, e.g., App. 40a-44a).

The district court relied upon this holding to reach the further

2. States self report on annual basis: (i) the numbers of children

the states have determined to be eligible for EPSDT and thus have

enrolled; (ii) the numbers of eligible children who have received at least

one required comprehensive examination; and (iii) the number of eligible

children who have received dental services. See instructions located at

http://cms.hhs. gov/medicaid/epsdt/4 1 6inst.asp. Petitioner’s self-reports,

uncontradicted, show that from FFY 1995 to FFY 1997, the number and

proportion of enrolled children who received health care declined.

(Compl. at #] 42, 46; App. 165a-167a). By FFY 1997, 64.7% of the

children due under Michigan’s periodicity schedule to receive in that

year at least one comprehensive medical examination were not furnished

any examination. (Compl. at 4 43, App. 165a). Three quarters of the

children due for dental assessments in that year did not receive any

assessment. (Compl. at § 47, App. 166a-167a).

5

conclusions that: (1) the exception to sovereign immunity

afforded by Ex parte Young, 209 U.S. 123 (1908) applies

only to Supreme federal law and, therefore, not to this case

(See, e.g., App. 56a); and (2) 42 U.S.C. § 1983 provides a

cause of action only for violations of Supreme federal law

and, therefore, not to these plaintiffs. (See, e.g., App. 82a).

_ The district court also held that while not Supreme federal

law, Title XIX of the Social Security Act is no more than a

contract, unenforceable for reasons including an analysis of

19th century third party beneficiaries (App. 77a-82a) and

the common law of states’ sovereign immunity as of 1871.

(App. 73a-77a). Finally, the district court held Ex parte Young

inapplicable for a series of additional reasons, including that

Title XIX created a detailed remedial scheme (App. 67a-69a)

and that the state is the real party in interest. (App. 44a-66a).

4. A broad set of healthcare providers, charitable

organizations, local government officials, and others

submitted amicus curiae briefs to the Court of Appeals urging

reversal. Some of these parties included the American

Academy of Pediatrics, the American Academy of Pediatric

Dentists, the American Hospital Association, the National

Association of Public Hospitals and Health Systems, the

Catholic Hospital Association of the United States, the

National Association of Children’s Hospitals, the National

Association of Community Health Centers, the Association

of American Medical Colleges, the March of Dimes Birth

Defect Foundation, Catholic Charities USA, American

Association of Retired Persons and the City of Detroit. Amici

participating in one brief alone stated that they represent

“virtually every hospital and health system in the country —

public, private, non-profit, for-profit, children’s hospitals,

teaching hospitals, etc.”

6

5. The Solicitor General also filed a Brief Amicus Curiae

Supporting Reversal. The United States stated its interest in

this case arose because the district court’s opinion “is at odds

with a long line of Supreme Court cases and would

significantly limit the effectiveness of Congress’s spending

power.” Br. at 1. At the invitation of the Sixth Circuit, the

United States subsequently intervened as a party and

participated in oral argument, urging reversal of the district

court’s opinion. In Gonzaga Univ. v. Doe, __ U.S. __, 122

S. Ct. 2268 (2002), the United States supported petitioners,

but asked that the Court reject the Gonzaga petitioner’s

arguments to the full extent they were based on the district

court’s opinion in Westside Mothers. Brief for the United

States as Amicus Curiae Supporting Petitioners at 18-23,

Gonzaga Univ. v. Doe, __ U.S. __, 122 S. Ct. 2268 (2002)

(No. 01-679) (Argument, Section A.3., entitled “An Analogy

to Nineteenth Century Contract Law Is Not an Appropriate

Basis for Refusing to Recognize Substantive Rights

Enforceable Under Section 1983”).

6. In the courts below and here, Respondents and Petitioner

have agreed that whether a statute is enforceable under

42 U.S.C. § 1983 is determined by the criteria in this Court’s

opinion in Blessing v. Freestone, 520 U.S. 329 (1997), as

subsequently confirmed by the Court’s opinion in Gonzaga.

(Pet. at 4, 6). The district court assumed, but did not decide,

that the children’s healthcare provisions at issue here are

intended to benefit the plaintiffs. (App. 70a). The Court of

Appeals applied this settled law and held that the provisions

of Title XIX, which clearly and unambiguously mandate

children’s healthcare, are enforceable by the children, their

families and their professional providers. (App. 16a-18a,

19a).

7

REASONS FOR DENYING THE PETITION

1. There is no split among the circuits with respect to the

unanimous Sixth Circuit opinion which reversed the district

court’s opinion “on all issues presented.” (App. 7a). Every aspect

of the district court’s decision has been unanimously and

decisively rejected by unanimous panels of each of the other

Courts of Appeals and by every district court to which it has

subsequently been presented.

In the Fourth Circuit, a unanimous panel rejected the

Supremacy Clause and Ex parte Young arguments based

in the district court’s holdings, finding them “novel” and

“at odds with existing precedent.” Antrican v. Odom et al., 290

F.3d 178, 188 (4th Cir. 2002) (Niemeyer & Hamilton, JJ. and

Raymond A. Jackson, District Judge, sitting by designation).

Instead, the Fourth Circuit affirmed the decision of District Judge

Malcolm Howard which had denied a motion to dismiss on the

same Westside Mothers grounds. On October 21, 2002, this

Court denied the defendants’ petition for certiorari. See Odom

v. Antrican, No. 02-220, 71 U.S.L.W. 3138, 2002 WL 1906621

(U.S. Oct. 21, 2002).

A Fifth Circuit panel in Frazar v. Gilbert, 300 F.3d 530,

550-51 & n.109 (Sth Cir. 2002) (Reavley, Smith & Dennis, JJ.),

unanimously rejected the Westside Mothers holdings, finding

“none of them persuasive.” An Eighth Circuit panel in Mo. Care

Ass'n v. Cross, 294 F.3d 1034, 1041 (8th Cir. 2002) (Bowman,

Riley & Melloy, JJ.), “found no. . . decision in which any federal

court of appeals has held” as the Westside Mothers’ district court

did and unanimously held “we agree with the Sixth Circuit’s

reasoned rejection of this argument and likewise reject [it] here.”

See also Koslow v. Commonwealth of Pennsylvania, 302 F.3d

161, 171 n.10 (3d Cir. 2002) (quoting and adopting this Sixth

Circuit and the above Fourth Circuit opinions).

8

2. This Court has recently reaffirmed its analysis for

determining whether the doctrine of Ex parte Young avoids

an Eleventh Amendment bar to suit: “a court need only

conduct a ‘straightforward inquiry into whether [the]

complaint alleges an ongoing violation of federal law and

seeks relief properly characterized as prospective.’” Verizon

v. Pub. Serv. Comm'n of Md., _ U.S. __, 122 S. Ct. 1753,

1760 (2002) (Scalia, J.) (citations omitted) (unanimous).

See also Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S.

261, 293, 296 (O’Connor, J. joined by Scalia and Thomas,

JJ., concurring in part, concurring in judgment) (1997)

(“the availability of prospective relief of the sort awarded in

Ex parte Young gives life to the Supremacy Clause”) (quoting

Green v. Mansour, 474 U.S. 64, 68, (1985)); see also Coeur

d'Alene, 521 U.S. at 298-299 (Souter, J., dissenting, joined

by Stevens, Ginsburg & Breyer, JJ.); Will v. Mich. Dept of

State Police, 491 U.S. 58, 71 & n.10 (1989), invoked by the

Sixth Circuit below (App. 13a), and in Jelespectrum, Inc. v.

Pub. Serv. Com'n of Ky., 227 F.3d 414, 419 (6th Cir. 2000).

3. This Court also has noted, and rejected, that aspect of the

district court’s opinion which holds that Spending Clause

legislation is, in fact, a contract subject to the common law

of contracts. In another recent unanimous opinion, Barnes v.

Gorman, _U.S.__, 122 S. Ct. 2097, 2102 n.2 (2002), Justice

Scalia wrote “We do not imply, for example, that suits under

Spending Clause legislation are suits in contract, or that

contract-law principles apply to all issues that they raise.”®

See also Bell v. New Jersey, 461 U.S. 773, 790-91 (1983)

3. Barnes v. Gorman held that punitive damages may not be

awarded in suits under the ADA and the Rehabilitation Act. Nearly

all of the cases invoked by Petitioner also concern damages, noi

prospective injunctive remedies. (See, e.g., Pet. at 10).

9

(O’Connor, J.), citing the Spending Power cases*, where the

unanimous Court noted that:

Requiring states to honor the obligations voluntarily

assumed as a condition of federal funding before

recognizing their ownership of funds simply does

not intrude on their sovereignty. The state chose to

participate in the . . . program and, as a condition of

receiving the grant, freely gave its assurances that it

would abide by the conditions. . . . If the conditions

were valid, the state had no sovereign right to retain

funds without complying with those conditions.

In Bennett v. Ky. Dept of Educ., 470 U.S. 656, 669 (1985)

(O’Connor, J.), also a unanimous decision and also applying

Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981)

(Pennhurst I), the Court “agree[s] with the state that . . . grant

agreements [have] a contractual aspect,” rejects a contractual

axiom that a contract be construed against its writer and holds:

the program cannot be viewed in the same manner

as a bilateral contract governing a discrete transaction

. .. Unlike normal contractual undertakings, federal

grant programs originate in and remain governed by

statutory provisions expressing the judgment of

Congress concerning desirable public policy.

Bennett, 470 U.S. at 669 (citations omitted). See also the Court’s

comprehensive examination of the Spending Power in South

Dakota v. Dole, 483 U.S. 203 (1987) (Rehnquist, C.J.).

4. Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17

(1981); Quern v. Mandley, 436 U.S. 725, 734 (1978); Rosado v.

Wyman, 397 U.S. 397, 408 (1970); Oklahoma v. U.S. Civil Serv.

Com ‘n, 330 U.S. 127, 143-44 (1947).

10 —

4. The Court of Appeals correctly and unexceptionally

applied the three-pronged test of Blessing v. Freestone, 520

U.S. 329 (1997) (as confirmed again by the Court’s opinion

in Gonzaga Univ. v. Doe, __ U.S. ___, 122 S. Ct. 2268 (2002))°

to hold Title XIX’s children healthcare provisions enforceable

under § 1983. The Court of Appeals correctly noted that the

test requires the statute to meet the following requirements:

(1) the provisions clearly and unambiguously intend certain

entitlements to be furnished by the states to benefit individual

children; (2) they are not vague and amorphous as not to be

capable of judicial enforcement; (3) they are mandatory; and

(4) there is no comprehensive remedial scheme available as

an alternative. (App. 17a-18a).

5. In the statutory provisions here, there can be no doubt about

the unambiguous clarity of the conditions sought to be enforced.

The very words of this statute and their form have been so

certified by the Court in Pennhurst I. Writing for the Court in

Pennhurst I, Justice Rehnquist says:

Indeed, in those instances where Congress has

intended the States to fund certain entitlements as

5. Gonzaga Univ., 122 S. Ct. at 2275 (citations omitted),

emphasizes that the dispositive question is whether the text of the

statute is ““phrased in terms of the persons benefited’ . . . ‘with an

unmistakable focus on the benefited class.’” At issue in this case are

42 U.S.C. § 1396a(a)(8) (“furnish . . . to all eligible individuals”);

§ 1396a(a)(10) (“... all individuals who are [eligible]”);

§ 1396d(a)(4)(B) (medical assistance is “early and periodic screening,

diagnostic, and treatment services . . . for individuals who are eligible

under the plan and are under the age of 21”); 42 U.S.C. § 1396d(r)

(specifying the children’s health care and services which are to be

furnished to all eligible children). (emphasis added).

11

a condition of receiving federal funds, it has proved

capable of saying so explicitly.

451 US. at 17-18 (emphasis added).

Pennhurst J immediately continues:

See, ¢.g., King v. Smith, supra at 333, (Social Security

Act creates a “federally imposed obligation [on the

States] to furnish ‘aid to families with dependent

children . . . with reasonable promptness to all

eligible individuals,’” quoting the Act).

Id. (emphasis added). The key provision of Title XIX of the

Social Security Act, the enforcement of which the Sixth Circuit

upheld, provides in its words exactly the same, except here the

services are medical assistance: 42 U.S.C. § 1396a(a)(8) says

exactly:

medical assistance . . . shall be furnished with

reasonable promptness to all eligible individuals.

(emphasis added). “Medical Assistance” is defined in

§ 1396d(a)(4)(B) to include “Early and periodic screening,

diagnosis and treatment,” which in turn is detailed in § 1396d(r).

Pennhurst I and the decision below find these provisions

exemplary of non-ambiguity and clarity, providing: “‘a clear

voice, enabl[ing] the states to exercise choice knowingly,

cognizant of the consequences of their participation” as

required where “Congress intends to impose a condition on

the grant of federal moneys.” 451 U.S. at 17. See also King

v. Smith, 392 U.S. 309, 317 (1968).

12

6. The children’s healthcare provisions at issue in the

Complaint are mandatory. Once a state chooses to participate

in Title XIX, EPSDT is one of five sets of services which the

state must provide; the state may elect whether to provide

other optional services. See Harris v. McRae, 448 U.S. 297,

301-2 (1980) (Stewart, J.):

Although participation in the Medicaid program

is entirely optional, once a State elects to

participate, it must comply with the requirements

of Title XIX. One such requirement is that a

participating State agree to provide financial

assistance to the ‘categorically needy’ with respect

to five general areas of medical treatment ...

[including] periodic screening and diagnosis of

children... .’

See also Beal v. Doe, 432 U.S. 438, 440-41 & n.1 (1977)

(Powell, J.).

7. There is no comprehensive remedial scheme in Title XIX

of the Social Security Act. The Blessing Court has

unanimously so held: “We have also stressed that a plaintiff’s

ability to invoke § 1983 cannot be defeated simply by the

availability of administrative mechanisms to protect the

plaintiff’s interests,” including powers to cut off federal

funding. 520 U.S. at 347-48 (internal citations omitted).

8. The Sixth Circuit’s unexceptional decision that these

provisions are enforceable raises no conflicts with other

Circuits. On the contrary, these children’s healthcare

requirements are routinely applied to confer federal rights

and to be enforceable under § 1983 by children, their parents

and their professional providers. Bryson v. Shumway,

13

No. 02-1059, 2002 WL 31303123, (1st Cir. Oct. 15, 2002)

(§ 1396a(a)(8)); Pediatric Specialty Care, Inc. v. Ark. Dep t of

Human Servs., 293 F.3d 472 (8th Cir. 2002) (§§ 1396a(a)(10),

1396d(a)(4)(B) and 1396d(r)); Miller by Miller v. Whitburn, 10

F.3d 1315 (7th Cir. 1993), vacating, 816 F. Supp. 505 (W.D.

Wis. 1993) (§§ 1396a(a)(8), 1396a(a)(10), 1396d(a)(4)(B) and

1396d(r)); Ark. Med. Soc’y v. Reynolds, 6 F.3d 519 (8th Cir.

1993) (§§ 1369a(a)(8), 1369a(a)(30)); Pittman by Pope v. Sec y

of Fla. Dept of Health & Rehab. Servs., 998 F.2d 887 (11th

Cir. 1993), cert. denied, sub nom. Agency for Health Care Admin.

v. Pittman by Pope, 510 U.S. 1030 (1993) (§§ 1396a(a)(10),

1396d(a)(4)(B) and 1396d(r)(5)); Pereira by Pereira vy.

Kozlowski, 996 F.2d 723 (4th Cir. 1993), aff’g, 805 F. Supp.

361 (E.D. Va. 1992) (§§ 1396b(i)(1) and 1396d(r)(5)); Mitchell

v. Johnston, 701 F.2d 337 (5th Cir. 1983) (§§ 1396a(a)(8),

1396a(a)(10) and 1396d(a)(4)(B)); Bond v. Stanton, 655

F.2d 766 (7th Cir. 1981), cert. denied, 454 U.S. 1063 (1981)

(§§ 1396a(a)(8), 1396a(a)(10) and 1396d(a)(4)(B)); Phila.

Welfare Rights Org. v. Shapp, 602 F.2d 1114 (3d Cir. 1979),

cert. denied sub nom., Thornburgh v. Phila. Welfare Rights Org.,

444 U.S. 1026 (1980) (§§ 1396a(a)(8), 1396a(a)(10) and

1396d(a)(4)(B)); and Stanton v. Bond, 504 F.2d 1246 (7th Cir.

1974), cert. denied, 420 U.S. 984 (1975) (§§ 1396a(a)(8),

1396a(a)(10) and 1396d(a)(4)(B)).°

6. See also Martin v. Taft, No. C-2-89-00362, 2002 WL

31101079 (S.D. Ohio Sept. 19, 2002); Alexander A. v. Novello,

No. 99-CV-8418, 2002 WL 31045299 (E.D.N.Y. Sept. 12, 2002);

Okla. Chapter of the Am. Acad. of Pediatrics v. F. ogarty, 205 F. Supp.

2d 1265 (N.D. Okla. 2002); Memisovski v. Patla, No. 92 C 1982,

2001 WL 1249615 (N.D. Ill. Oct. 17, 2001); Antrican v. Buell, 158

F. Supp. 2d 663 (E.D.N.C. 2001), aff'd on other grounds sub nom.,

Antrican v. Odom, 290 F.3d 178 (4th Cir. 2002); Bonnie L. v. Bush,

180 F. Supp. 2d 1321 (S.D. Fla. 2001); Dajour B. v. The City of New

(Cont’d)

14

9. Petitioner’s arguments disregard settled law or misstate

the record. For example, Petitioner, at page 23, asserts

that children’s healthcare benefits are not individually-

enforceable because the statute frames them as elements that

must be contained in a state plan. Congress foreclosed this

argument in 1994 when it enacted 42 U.S.C. § 1320a-2,

overruling a part of Suter v. Artist M., 503 U.S. 347 (1992),

- (Cont'd)

York, No. 00 CIV. 2044, 2001 WL 830674 (S.D.N.Y. Jul. 23, 2001);

Carr v. Wilson-Coker, 203 F.R.D. 66 (D. Conn. 2001); Chisholm v.

Hood, 133 F. Supp. 2d 894 (E.D. La. 2001); John B. v. Menke, 176

F. Supp. 2d 786 (M.D. Tenn. 2001); Risinger v. Concannon, 117

F. Supp. 2d 61 (D. Me. 2000); Frew v. Gilbert, 109 F. Supp. 2d 579

(E.D. Tex. 2000), reversed sub nom., Frazar v. Ladd, 300 F.3d 530

(Sth Cir. 2002); Jeremy and Darvin J. v. Morse, No. 96-48 (E.D. Ky.

Mar. 26, 1997); Hunter v. Chiles, 944 F. Supp. 914 (S.D. Fla. 1996);

Sanders v. Lewis, No. 2:92-0353, 1995 WL 228308 (S.D. W. Va.

Mar. 1, 1995); Wellington v. District of Columbia, 851 F. Supp. 1

(D.D.C. 1994), later proceeding at Salazar v. District of Columbia,

954 F. Supp. 278 (D.D.C. 1996); GL. v. Stangler, 873 F. Supp. 252

(W.D. Mo. 1994); Chappell by Savage v. Bradley, 834 F. Supp. 1030

(N.D. Ill. 1993), opinion clarified by No. 91 C 4572, 1993 WL 496700

(N.D. Ill. Nov. 24, 1993); Maher v. White, No. CIV. A. 90-4674,

1992 WL 122912 (E.D. Pa. June 2, 1992); Clark v. Kizer, 758

F. Supp. 572 (E.D. Cal. 1990), aff’d in relevant part sub nom. Clark

v. Coye, 967 F.2d 585 (9th Cir. 1992), described in 60 F.3d 609

(9th Cir. 1988); Montoya v. Johnston, 654 F. Supp. 511 (W.D. Tex.

1987); Woodruff v. Lavine, 399 F..Supp. 1008 (S.D.N.Y. 1975);

Dominguez v. Milliken, No. G-198-72 CA (W.D. Mich. Jan. 8, 1973);

N.Y. City Coalition to End Lead Poisoning v. Giuliani, 720 N.Y.S.2d

298 (N.Y. Sup. Ct. 2000); contra: Charlie H. v. Whitman, 83 F. Supp.

2d 476 (D.N.J. 2000) (controlling provisions are not pleaded and

not examined and, contrary to Blessing, 520 U.S. at 347-49, holding

that fund cut off is a comprehensive remedial scheme).

-

to provide that a requirement is not unenforceable by an

individual simply because it is articulated as a requirement

for the contents of a state plan.

10. Petitioner attempts to create the impression that the

allegations in this case are like those in Blessing v. Freestone,

520 U.S. 329 (1997): “[rjespondents’ only allegations as to

Petitioner’s actions are that Petitioner submitted statistics

to HHS reflecting that Petitioner failed to meet an 80%

participation goal set by HHS under 42 U.S.C. § 1396d(r),

and that such fact, if true, affords Respondents a right of

action. ...” (Pet. at 24-25). Petitioner’s statement twice

mischaracterizes the Complaint, which is based on allegations

of other statutory provisions, and which does not seek to

enforce a participation goal, as such. (App. 145a-176a).

Plaintiffs do plead defendant’s self reports, uncontradicted,

to show the number of children to whom defendants have

not furnished children’s healthcare. The number of children

not served continues to be abysmal.

Although Petitioner tries to shoehorn Title XIX into the

mold of the statute at issue in Blessing (Pet. at 24, 25-26),

they are materially different statutes. The substantial

compliance language in Title XIX that is the most comparable

to the language at issue in Blessing is in § 1396c and entirely

and exclusively concerns a Secretary’s authority to cut-off

federal financial assistance from a state. Respondents here

did not sue to enforce § 1396c; instead they sued under

provisions which identified specific health care rights for

individuals. The Blessing Court also went out of its way to

make clear that the “substantial compliance” requirement

(like the requirement in § 1396c) can co-exist with

individually enforceable rights, such as those sought to be

enforced here, by sending the case to the district court to

16

allow plaintiffs to specify which specific rights they sought

to enforce. Finally, the Sixth Circuit opinion differs from

those of the lower courts in Blessing, where this Court

complained that the lower courts “did not separate out the

particular rights it believed arise from the statutory scheme.”

520 U.S. at 345. The Sixth Circuit Court of Appeals did

address “exactly what rights, considered in their most

concrete, specific form, respondents are asserting.” Jd. at 346.

(App. 17a-18a, 19a).

11. Petitioner also asserts (Pet. at 25) that notwithstanding

this statute which requires the state to furnish children’s

healthcare to all eligible children (e.g., § 1396a(a)(8)),

Congress cannot have intended what it said because of a

provision requiring the states to report their annual

performance of the Secretary to develop and set participation

“goals.” But goals for administrative purposes are different

from the “certain entitlement” to all individuals who are

eligible as recognized in Pennhurst I, 451 U.S. at 17-18.

Congress was moved in 1989 to secure administrative goals,

not to dismiss or repeal that entitlement. It hoped to improve

through administrative action performance which was widely

perceived as unsatisfactory.

12. Petitioner suggests (Pet. at 26) some possible conflict

between the decision in this case and the Fifth Circuit’s

opinion in Frazar v. Gilbert, 300 F.3d 530 (Sth Cir. 2002).

But Frazar is ill-developed and unripe for review here.

Frazar was about a six-year old settlement agreement.

Although agreeing that the case arose under Ex parte Young,

the Fifth Circuit panel nonetheless held that the district court

did not have jurisdiction to enforce a consent decree if the

provisions of the decree were not, themselves, directly

enforceable under § 1983.

17

The Fifth Circuit did not mention or in any way address

three of the children’s healthcare provisions on which the Sixth

Circuit of Appeals grounded its decision, §§ 1396a(a)(8),

1396a(a)(10) and 1396d(a)(4)(B). (App. 17a-18a). The Frazar

district court opinion appears not to have rested in these

provisions. Indeed, Frazar expressly reaffirms the continued

vitality of Mitchell v. Johnston, 701 F.2d 337 (5th Cir. 1983), a

children’s dental care case where the Circuit had enforced

§§ 1396a(a)(8), 1396a(a)(10) and 1396d(a)(4)(B) and (5), as

well as 42 C.F.R. § 441.56 which is now codified as § 1396d(r),

all statutes relied upon in this case; and Evergreen Presbyterian

Ministries Inc. v. Hood, 235 F.3d 908 (5th Cir. 2000), in which

it held the equal access clause of § 1396a(30)(A) to confirm

individual benefits and hence be enforceable by eligible children

under § 1983. Frazar, 300 F.3d at 539-40.

Finally, Frazar recites that plaintiffs’ Complaint included

a claim that defendants “did not meet annual participation

goals set by the Secretary.” Jd. at 534. As discussed above,

Respondents did not make these allegations. The Fifth Circuit

appeared to rely heavily upon the presence of this claim in

likening it to the provision held unenforceable in Blessing.

Frazar, 300 F.3d at 544-45. Thus, while the holdings of the

Fifth Circuit may conflict with other holdings in other circuits,

any conflict with the holding in this case is murky, at best, and

does not warrant further review of this case.

13. Petitioner claims a single error with respect to the Court

of Appeals’ holding that the American Academy of Pediatrics,

Michigan Chapter and the American Academy of Pediatric

Dentists have standing. But Petitioner’s bare assertion

that it agrees with the district court as to prudential standing

(Pet. at 20) does not warrant review here. Nor does any other

consideration.

18

14. The district court itself assumed that the two professional

provider organizations had constitutional standing. (App.

106a). This was an unexceptional conclusion given this

Court’s decisions since Hunt v. Wash. Apple Adver. Com’n,

432 U.S. 333 (1977) and Havens Realty Corp. v. Coleman,

455 U.S. 363 (1982). Under Hunt, since members of the

_ Michigan chapters of pediatric academies have standing

under § 1396a(a)(30)(A) (“. . . assure that payments .. . are

' sufficient to enlist enough providers. . .”), (H. Rep. No. 1024-

7 at 390; 1989 U.S.C.C.A.N. at 2116 (codified as an incentive

to physicians)), so do their organizations. See, e.g., Ark. Med.

Soc’y, Inc. v. Reynolds, 6 F.3d 519, 528 (8th Cir. 1993), (citing

Wilder v. Va. Hosp. Ass’n, 496 U.S. 498, 509 (1990)). Under

Havens, the professional organizations also have standing

because Petitioner’s violations have imposed otherwise

unnecessary expenditures to “protec[t] the medical needs of

children” and to “promot[e] policies that increase access to

healthcare for low-income children” upon the Academies

themselves. (App. 153a-154a). Those elements satisfy also

the flexible standards of prudential standing. Powers v. Ohio,

499 U.S. 400, 410-11 (1991); Warth v. Seldin, 422 U.S. 490,

498-99 (1975). Moreover, this case is not a suitable vehicle

for review because it must go forward in any event given the

unchallenged standing of the individual children, their.

families and their organizations.

19

CONCLUSION

Nothing in the unexceptional decision of the unanimous

Court of Appeals for the Sixth Circuit warrants review by

this Court. The petition for a Writ of Certiorari should be

denied.

Respectfully submitted,

JENNIFER R. CLARKE

Counsel of Record

BRENT A. HANNAFAN

DECHERT PRICE & RHOADS

4000 Bell Atlantic Tower

1717 Arch Street

Philadelphia, PA 19103-2793

(215) 994-4000

THOMAS K. GILHOOL

PuBLic INTEREST LAW CENTER

OF PHILADELPHIA

125 South 9" Street

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(215) 627-7100

JANE PERKINS

NATIONAL HEALTH LAW PROGRAM

Second Floor

211 North Columbia Street,

Chapel Hill, NC 27514

(919) 968-6308

20

MARILYN MULLANE

MICHIGAN LEGAL SERVICES

900 Michigan Building

200 Bagley Street

Detroit, MI 48226

(313) 964-4130

SusAN McPARLAND

MICHIGAN ASSOCIATION

FOR CHILDREN WITH

EMOTIONAL DISORDERS

15920 Twelve Mile Road, #201

Southfield, MI 48076

(248) 552-0044

Attorneys for Respondents