ORDER
The opinion filed on July 5, 2013 is amended as follows:
On page 8 of the slip opinion, the second sentence of the third paragraph, which reads; “We reverse the district court’s holding that the Climes have a private right of action to challenge the Department’s implementation of the SPA prior to obtaining approval,” is stricken.
■ An amended opinion is filed concurrently with this order.
With this amendment, the panel unanimously votes to deny the petition for panel rehearing. Judge Murguia votes to deny the petition for rehearing en banc, and Judges Nelson and Tashima so recommend. The full court has been advised of the petition for rehearing and rehearing en banc, and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.
The petition for panel rehearing and rehearing en banc is DENIED. No further petitions for en banc or panel rehearing shall be entertained.
IT IS SO ORDERED.
OPINION
This case concerns a clash of competing interests: the mission of publicly-funded health clinics to provide a panoply of medical services to under-served, communities on the one hand, and California’s persistent budget woes on the other. We must decide whether California legislation that
I. Background
Title XIX of the Social Security Act, referred to as the Medicaid Act, is a cooperative federal-state program through which the federal government provides financial assistance to states so that they can furnish medical care to low-income individuals. Wilder v. Va. Hosp. Ass’n,
States, are not required to participate in Medicaid, but those states that opt in to the system must comply with both the statutory requirements imposed by Medicaid and with regulations promulgated by the Secretary of Health and Human Services. Alaska Dep’t of Health & Soc. Servs. v. Ctrs. for Medicare & Medicaid Servs.,
California participates in Medicaid through the California Medical Assistance Program (“Medi-Cal”), which the California Department of Health Services (“Department”) administers. Cal. Welf. & InsiCode §§ 10740, 14000, et seq. The Department is responsible for establishing and complying with the state plan and must submit any state plan amendments (“SPA”) to the Centers for Medicare and Medicaid Services (“CMS”) for review and approval. 42 U.S.C. § 1396a(a)(5); 42 C.F.R. §§ 430.10, 430.12, 430.14, 431.10. The Department also ensures that MediCal provides covered services to eligible beneficiaries and reimburses providers for their services. 42 C.F.R. § 431.10.
In February 2009, California found itself in the throes of a budget crisis. As a cost-cutting measure, the state legislature passed California Welfare and Institutions Code' § 14131.10 (“ § 14131.10”), which eliminated certain Medi-Cal benefits that the state deemed optional, including adult dental, podiatry, optometry and chiropractic services. The Department amended California’s state plan accordingly, and submitted- the SPA for approval. In the meantime,' the Department discontinued reimbursement for services listed in § 14131.10.
The California Association of Rural Health Clinics and the Avenal Community Health Center, a Federally qualified health
The Department countered that the Clinics did not have a private right of action to bring either claim, that federal law permitted the exclusion of the optional services covered by § 14131.10, and that the Department was not required to obtain approval of the amendments to the' state plan before implementing those amendments.
The district court held that the Clinics had a private right of action to bring their claims, that § 14131.10 was not in conflict with Medicaid’s requirements, and that the Department was required to obtain approval for amendments to the state plan before implementing the changes. The court therefore granted declaratory relief to the Climes on the SPA claim and enjoined further enforcement of § 14131.10 pending CMS’s approval of the SPA.
After the district court entered judgment, but prior to the briefing on appeal, CMS approved the Department’s SPA with a retroactive effective date of July 1, 2009. This timely appeal followed.
The Clinics' challenge the district court’s holding that § 14131.10 is consistent with the Medicaid Act. The Department cross-appeals, challenging the Clinics’ private right of action to pursue their claims, as well as the injunctive relief granted to the Clinics on their SPA claim.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm that the Clinics have a private right of action to bring a claim pursuant to 42 U.S.C. § 1983 challenging the validity of § 14131.10.- But we reverse the district court’s interpretation of the Medicaid Act and hold that § 14131.10 impermissibly eliminates mandatory services from coverage.
II. Standard of Review
We review de novo a grant of declaratory relief, a grant of summary judgment and the district court’s interpretation of the Medicaid Act. Katie A. v. L.A. Cnty.,
III. Discussion
A. Private Right of Action to Bring § 1983 Claim
Relying on 42 U.S.C. § 1983, the Clinics challenge § 14131.10 as preempted by federal law. The Department contends that the Climes do not have a private right of action to challenge § 14131.10 because Congress did not confer entitlements on them . when it enacted 42 U.S.C. § 1396a(bb), the Medicaid provision at issue.
Section 1983 “safeguards certain rights conferred by federal statutes,” but a § 1983 plaintiff “must assert the violation of a féderal right, not merely a violation of federal law.” Blessing v. Freestone,
First, Congress must have intended that the provision in question benefit the plaintiff. Second, the plaintiff must 'demonstrate that the right assertedly protected by the statute is not so vague and amorphous that its enforcement would strain judicial competence.*1012 Third, the statute must unambiguously impose a binding obligation on the States. In other words, the provision giving rise to the asserted right must be couched in mandatory, rather than prec-atory, terms.
Id. at 340-41,
Whether the Clinics have a private right of action under § 1983 to challenge § 14131.10 is a novel issue in this circuit.
We made the same assumption in Oregon Association of Homes for the Aging, Inc. v. State of Oregon,
And in Exeter Memorial Hospital Association v. Belshe (Exeter II), we adopted the district court’s opinion, which noted that the parties agreed that a § 1983 action was available to challenge the state’s failure to obtain approval of amendments to a state plan before implementing those changes under the now-repealed Boren Amendment.
Although we held in Developmental Services Network v. Douglas,
In Developmental Services, we also noted that although Washington State Health Facilities and Oregon Homes for the Aging allowed “for a § 1983 action, ... neither actually discussed the question about what specific provision conferred a cause of action upon providers; they were quite general, even ambiguous, in that regard.” Id. at 547. In addition, we recounted that the parties agreed in Exeter II that a § 1983 action was available. Id. at 547-48. And all three cases preceded Gonzaga University, which clarified the requirements for bringing a § 1983 action. Id. at 548; see also Gonzaga Univ.,
Against this backdrop, we must decide whether Congress intended to confer on the Clinics a private right of action to challenge § 14131.10 as violating 42 U.S.C- § 1396a(bb)(l). It did. Again, we must be clear at the outset that none of the cases we have discussed considered whether a § 1983 action exists to contend that a state had violated 42 U.S.C. § 1396a(bb)(l), the statutory provision before us. That provision reads: “Beginning with fiscal year 2001 with respect to services furnished on or after January 1, 2001, and each succeeding fiscal year, the State plan shall provide for payment for services ... furnished by a Federally-qualified health center and services ... furnished by a rural health clinic in accordance with the provisions of this subsection.” 42 U.S.C. § 1396a(bb)(l); see also § 1396a(bb)(5)-(6) (setting forth procedures for payment of services). This language persuades us that Congress intended to “confer individual rights upon” the Clinics with specific “rights-creating language.” Gonzaga,
Because the language contained in 42 U.S.C. § 1396a(bb)(l) is not general or administrative but contains specific rights-creating language, it reflects Congress’s intent to “create new rights enforceable under § 1983 ... in clear and unambiguous terms.” Gonzaga,
B. The Medicaid Act Prohibits the Limitations Contained in § 14131.10
1. We Do Not Accord Chevron Deference to CMS. Approval
After the district court entered judgment, CMS approved the SPA the Clinics challenge on appeal. We ordered the parties to brief the effect of this approval on the pending appeal and to address the
It is clear that we cannot defer to CMS on any issue about which “Congress has directly spoken,” such that “the intent of Congress is clear.” See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc.,
In considering whether Chevron deference applies, we must first identify the “precise question at issue.” Chevron,
The question we must answer is whether Congress has defined unambiguously the scope of physicians’ services for which the Clinics must be reimbursed. As we discuss in the following section, the statutory text provides a clear answer, and, thus, we do not defer to CMS’s approval of the SPA.
Our recent decision in Managed Pharmacy Care v. Sebelius,
Here, however, the statutory text does not use vague and amorphous words. Instead, it outlines specifically the types of services provided by RHCs and FQHCs that a state plan must cover. “Congress has directly spoken to the precise question at issue.” Chevron,
2. Statutory Interpretation
The Medicaid Act requires participating states to cover certain services in their state plans. 42 U.S.C. § 1396a(a)(10)
As noted by the district court, the parties agree on this description of the law to this point. They also agree that the “physicians’ services” referenced in the Medicare statute are the core services that RHCs and FQHCs must provide pursuant to Medicaid and for which they are entitled to reimbursement. But here the parties diverge: They disagree on which source of law — Medicaid or Medicare — defines “physicians’ services” with respect to RHCs and FQHCs.
The Clinics predicate their claim on a theory of federal'conflict preemption. See Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n,
The Department, on the other hand, contends that the Medicaid definition of “physicians’ services” controls because there is no basis for referring to the definitions contained in Medicare to determine what Medicaid requires. Medicaid defines “physicians’ services” as “services furnished by a physician (as defined in section 1395x(r)(l) of • this title).” Id. § 1396d(a)(5)(A). Section 1395x(r)(l) defines “physician” as a “doctor of medicine or osteopathy.” Id. § 1395x(r)(l). While the subsequent subsections of § 1395x(r) list the other types of physicians contained in the Medicare Act, including dentists, podiatrists, optometrists and chiropractors, the' Medicaid Act provision defining “physicians’ services” refers only to § 1395x(r)(l). Thus, the Department argues, the services provided by doctors of medicine and osteopathy are required services, while those provided by dentists, podiatrists, optometrists and chiropractors
We begin our analysis with the text of the statute. Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy,
First and foremost, we note that Medicaid requires state plans to cover, as a floor, various services listed in 42 U.S.C. § 1396d(a). See 42 U.S.C. § 1396a(a)(10)(A) (requiring state plans to cover the services listed in paragraphs (1) through (5), (17), (21) and (28)). But two provisions are of particular interest. Medicaid specifically requires coverage for: “rural health clinic services (as defined in subsection (l )(1) of this section) and ... Federally-qualified health center services (as defined in subsection (I )(2) of this section). ...” 42 U.S.C. § 1396d(a)(2). In addition, Medicaid requires coverage for “physicians’ services,” defined as services “furnished by a physician (as defined in section 1395x(r)(l) of this title).” Id. § 1396d(a)(5). By its very terms, then, Medicaid requires state plans to cover both RHC and FQHC services and, separately, it also requires state plans to cover “physicians’ services furnished by a physician.” Id.
Next we note that these two provisions refer explicitly to two paragraphs in the definitional section of the Medicaid statute that define “rural health clinic services” and “Federally-qualified health services.” Id. § 1396d(i )(1), (i)(2). Section 1396d(£ )(1) states: “The terms ‘rural health clinic services’ and ‘rural health clinic’ have the meanings given such terms in section 1395x(aa).... ” Section 1396d(i )(2) provides: “The term ‘Federally-qualified health center services’ means services of the type described in subpara-graphs (A) through (C) of section 1395x(aa)(l).... ” These statutory commandments are unambiguous. The RHC services and FQHC services that Medicaid requires states to cover are coequal to those services as they are defined in § 1395x(aa) of the Medicare statute. In other words, whatever meaning the Medicare statute gives to those terms, they bear the same meaning in the Medicaid statute. Medicaid imports the Medicare definitions wholesale.
Thus, we must determine how Medicare defines the relevant terms. Medicare provides that “rural health clinic services” and “Federally-qualified health center services” both include “physicians’ services.” 42 U.S.C. § 1395x(aa)(l)(A), (3). Medicare defines “physician” to include five categories of professionals: doctors of medicine and osteopathy, doctors of dental surgery or dental medicine, doctors of podiatry, doctors of optometry and chiropractors. Id. § 1395x(r)(l)-(5). It is clear then that the “physicians’.services” that the Clinics provide, and for which they must be reimbursed, include not only the services furnished by doctors of medicine and osteopathy, but also the services furnished by dentists, podiatrists, optometrists and chiropractors.
We hold that Medicaid imposes on participating states an obligation to cover “rural health clinic services” and “Federally-qualified health center services,” and Medicaid imports the Medicare definition of those terms. Thus, Medicare unambiguously defines the Clinics’ services to include services performed by dentists, podi
C. The Department’s Cross-Appeal is Moot
We must consider whether CMS’s approval of the SPA following the entry of judgment below renders the Department’s cross-appeal moot. ■ It does.
“Article III of the Constitution requires that there be a live case or controversy at the time that a federal court decides the case; it is not enough that there may have been a live case or controversy when the case was decided by the court whose judgment we are reviewing.” Burke v. Barnes,
The Department seeks reversal of the injunctive and declaratory relief granted below. The district court enjoined the Department from implementing § 14131.10 pending CMS’s approval of the SPA. Thus, the injunction is no longer in place. The district court also granted declaratory relief to the Clinics, finding that the Department was required to obtain approval of the SPA before implementing changes to the state plan. Again, however, CMS has since approved the SPA. Thus, absent an exception, CMS’s approval of the SPA renders moot the Department’s cross-appeal as to injunctive and declaratory relief. Oregon v. Fed. Energy Regulatory Comm’n,
“Issues that are capable of repetition, yet evading review present an exception to the mootness doctrine.” Doe,
The nature of the SPA process satisfies the first prong of this test. An SPA is deemed approved within 90 days unless CMS sends written notice that the plan or amendment was rejected, or requests additional information within that timeframe. 42 C.F.R. § 430.16. This 90-day period will be too short for full litigation to take place. Doe v. Reed,
“Turning to the second prong, the challenged conduct is capable of repetition where there • is evidence that it has occurred in the past, or there is a reasonable expectation that the petitioner would again face the same alleged invasion of rights.” Alcoa, Inc. v. Bonneville Power Admin.,
IV. Conclusion
REVERSED and REMANDED. We DENY the Clinics’ motion to augment the record as moot. Each side shall bear its own costs.
Notes
. Several other circuits have held that a private right of action exists to enforce rights created by 42 U.S.C. § 1396a(bb), the very provision before us. See, e.g., Concilio de Salud Integral de Loiza, Inc. v. Perez-Perdomo,