*3 рrograms aid in South Carolina. The GREGORY, Before KING and Circuit Department South Carolina of Disabilities WHITNEY, Judges, and FRANK D. (“DDSN”) and Special Needs specific Judge United States District for the authority over the state’s treatment and Carolina, sitting Western District of North training programs people with mental by designation. retardation and related disabilities. *4 This case involves the Medicaid waiver part, Affirmed in in part, vacated 1396n(c) program by created 42 U.S.C. by published opinion. remanded Judge (2000), permits states to waive the opinion, wrote the in which GREGORY requirement that persons with mental re- Judge Judge KING concurred. tardation or a disability related in live an separate WHITNEY wrote a opinion institution in order to receive certain Med- concurring judgment in part icaid generally services. See Bryson v. dissenting part. in (1st Cir.2002) Shumway, 308 F.3d (“[The program] experi- states to allow[s] OPINION care, ment with provide methods of or to GREGORY, Circuit Judge: basis, targeted care on a without adhering Doe, developmental Sue who has disabil- to the strict mandates of the Medicaid including epilepsy, ities mild mental retar- system.”). an When individual in South dation, palsy, and cerebral filed this action services, applies Carolina for DDSN in- concerning her application fоr Medicaid cluding program, the waiver DHHS first from the state of South Carolina. determines whether the eligi- individual is granted summary The district court judg- Thereafter, funding. ble for Medicaid Appellees: ment the South Carolina DDSN determines whether the individual Department of Special Disabilities and and, so, for if DDSN services Needs, Department the South Carolina of what “level of care” the individual re- Services, Health and Human and various quires. To be given option under the depart- officials the helm of the two program waiver of receiving services ments. Because Doe’s claims on ap- two community, home or in the than in rather not, peal found, are as the district court institution, qualify an individuals first must moot, but one of her claims nonetheless Facility for the Intermediate Care for the law, a part fails as matter of we affirm in (“ICF/MR”) Mentally Retarded level of in part. and vacate and remand is, they care—that must meet the criteria necessary to in an a reside institution like
I.
nursing
approved,
home.
If
waiver ser-
an optional,
Medicaid is
federal-
in a
provided
variety
settings
vices are
of
program through
(1)
state
which the federal
in
a
including,
order of restrictiveness:
government
(“SLP
provides financial assistancе
II”),
Supervised Living Program II
needy
to states for the medical care of
apartment
an
recipients
where
DDSN
Ass’n,
(2)
Hosp.
individuals.
Wilder
Va.
together;
Community
services live
a
498, 502,
(“CTH I”),
private
S.Ct.
a
Training Home
L.Ed.2d 455
Once a state elects to
recipient
foster home where
DDSN
in
participate
program,
comply
family,
it must
services resides with a
one member
(3)
yet
the services
that she had not
received
caregiver; and
a trained
of whom is
(“CTH II”),
in
of care.
DDSN
her
promised
Home II
Community Training
family
that Doe’s
was not
caregivers
protested
for DDSN
with live-in
group
home
of those
cooperating
availing
of DDSN services.
in
themselves
recipients
or fewer
four
decisions about
The DHHS
officer held
Appeals from DDSN
services.
any,
abeyance
are taken
an
request
appeal
if
will
Doe’s
and,
that, to
hearing officer
after
Medicaid eli-
a DHHS
he considered Doe’s
Administra-
the state of South Carolina’s
Doe had also
gibility
question.
to be
Judge
Law
Division.
tive
immediate CTH I or CTH
demanded
(rather than contin-
placement
residential
for services under DDSN’s
applied
services),
provider
in-home
with a
ued
July
previ-
after
waiver
mother,
choice, because her
whose
her
DDSN services had been
requests
ous
rapidly declining,
was
was
mental health
and 2001.
In December
denied
to care for her and was
longer
no
able
making a determination as to
without
Doe. Doe
moving out of state without
program,
eligibility
for the waiver
opposition
to DDSN’s chosen
voiced
wait-
placed Doe on the non-critical
services, the Bab-
provider for residential
program.
appealed
ing list for
*5
Center,
reports
cock
based on
DHHS, adding a claim that
this decision to
history
abusing
a
and ne-
center had
to serve her within a reason-
DDSN failed
response
In
to Doe’s
glecting residents.
by
required
amount of time as
federal
able
of her
petitions,
requested proof
DDSN
appeal
pend-
was
regulations. While
taking
family
critical
circumstances before
top
moved Doe to the
of the
ing, DDSN
action.
and
waiting
program
critical
list for the
her,
action,
a
of care for
developed
9, 2003, Doe filed this
On June
largely
living
Act,
involved her
at home with
42
alleging
of the Medicaid
violations
would receive vari-
her mother where she
1396-1396v,
§§
the Americans with
U.S.C.
moved
ous in-home services. DDSN then
101—
Act of
Pub.L. No.
Disabilities
appeal.
(codified
to dismiss Doe’s
336, 104
as amended in
Stat.
U.S.C.),
vari-
sections of
scattered
hearing on
At the March 2003
DDSN’s
Only
original
state laws.
two of Doe’s
ous
dismiss,
Doe conceded
motion
(1)
a claim
seven claims are
issue here:
top
moved her to the
DDSN had
Appellees
under
U.S.C.
eligi-
her
waiting
critical
list and had found
deprived
“have
Doe of Medicaid services—
ble for
waiver
namely,
residential habilitation services
Finding that all the
earlier that month.
and freedom of choice of
of those
providers
already
had
been resolved
appealed issues
(2)
Appellees
a claim that
services”
favor,
hearing
in
officer
Doe’s
DHHS
provide
have “failed to
with reasonable
appeal.
ap-
Doe’s
Doe did not
dismissed
the residential habilitation and
the dismissal to the state’s Adminis-
peal
requested
services Doe has
other Medicaid
Division. At the end of
Judge
trative Law
1396a(a)(8)
in violation of
since 2000”
March, however, Doe learned that she had
an
sought
the Medicaid Act. Doe
order
program.
from the waiver
been terminated
directing
her with resi-
DDSN
hearing
a
on this decision
requested
She
pro-
habilitation services from the
dential
and,
later,
several months
learned that her
choice, payment of her medical
vider of her
terminate as
eligibility
was to
did).
and fees and
expenses,
costs.
(although it never
well
2, 2003,
a
July
Doe filed a motion for
Doe re-
On
During May and June of
injunction seeking relief sub-
hearing
grounds
preliminary
on the
quested another
chose,
stantially
requested
merits,
similar to that
her
nor a fair hearing on the
complaint.
being
Doe’s mother had
then left
and that she is
threatened with ter-
Carolina,
altogether.
South
and her father was unable mination of services
Doe ad-
Accordingly,
into
home.
hearing
to take her
his
mitted at the
already
she had
shortly
hearing
prevailed
on the motion for
after the
on three causes of action in her
injunction,
placed
preliminary
complaint.
home)
(group
facility
II
a CTH
9, 2004,
On December
the district court
Carolina,
Newberry,
she
South
where
re-
dismissed as moot three of Doe’s causes of
(or
respite
temporary)
ceived
services.
here'— n
including
appeal
the two on
action—
that it
so because of
DDSN maintains
did
grounds
on the
that at
hearing
on the
circumstances,
family
summary
motion for
judgment, Doe admit
qualified
she
for that
was
most-restrictive
already
ted that she had
received the relief
fact,
setting;
DDSN found Doe to need requested in those counts. The district
(foster home)
(apart-
or SLP II
CTH
granted summary judgment
cоurt
Ap-
ment) setting. Doe continues to reside at pellees on Doe’s remaining four counts and
Newberry facility.
light
of Doe’s
request
attorney’s
denied her
fees and
placement
Newberry,
the district court
for reconsideration. Doe
appealed,
in-
preliminary
denied Doe’s motion for
(1)
asking us to determine
whether her
junctive relief.
claim that Appellees
deprived
have
her of
Appellees
summary
reasonably
then moved for
prompt residential
At
judgment.
on the motion in habilitation services is
Ap-
moot because
explained that
September
pellees
provided
she
Doe with temporary
(2)
consistently requested
had
CTH
resi-
whether her claim that
*6
dential habilitation services in her home
she has been denied the freedom of choice
Columbia,
community,
qualified providers
near
South
Car-
Medicaid services
explained
olina. Doe
is
Appellees
provided
she could
moot when
her
providers
avail herself of these
until
from a provider they,
services
and not
Doe,
placement, yet
the
approved
DDSN
DDSN
chose. We review the district court’s
novo,
only approve
placement.
summary judgment
would
a CTH I
ruling de
view
that,
explained
although
ing
light
Doe further
the facts in the
most favorable to
ultimately
eligible
non-moving party
DDSN
found her
for the Doe
drawing
as the
all
providing
waiver
and is now
her
reasonable inferences
her favor. See
Int'l, Inc.,
II
Varghese Honeywell
with CTH
residential
DDSN
F.3d
(4th Cir.2005).1
placement
considers Doe’s current CTH
Newberry
temporary and has acknowl-
II.
may
edged that Doe
be moved out of
altogether depending
residential facilities
appeals
Doe first
the district
setting
ultimately
on the
finds her
decision
moot her
court’s
to dismiss as
require.
argued against
Doe therefore
Appellees
1983 claim that
violated the
summary judgment
grounds
by
on the
Act
providing
tempo
Medicaid
her with
rary respite
providing
she has never received the residential ser-
services instead of
her,
requested by
provider
promptness,2
vices she
the
she
with reasonable
the resi-
wise,
pro-
1.
have been state administrative
on the issues Doe raises before this
There
ceedings
Court.
in Doe's case since she noted her
appeal
We
to this Court.
do not consider
the
proceedings
paucity
outcome
of these
of references
to "reason-
Given the
effect,
brief,
preclusive
promptness”
appellate
outcome has no
or other-
able
in Doe’s
wrongful
could
approved
allegedly
in that the
behavior
services
dential habilitation
1396a(a)(8)
reasonably
expected
of care.3 Section
to recur.”
her 2003
that state “medical
requires
Earth,
of the Act
Inc. v. Laidlaw
Friends
... be furnished
reason-
assistance
(TOC), Inc.,
Envtl. Servs.
all
individuals.”
able
promptness
(2000)
when the district court asked her whether
(without
probing
claim
so much as
already prevailed
she had
this claim
usage
“prevail”
district
of the term
court’s
hearing.
the DHHS
explaining
to the court the breadth of
claim,
done
as she has
before this
A.
Court)
fees,
only attorney’s
and now seeks
A case is moot “when the issues
Doe waived her claim.
law is
“[F]ederal
presented
longer
par
are no
‘live’ or the
voluntary
well-settled
waiver is
legally cognizable
ties lack a
interest in the
*7
relinquishment
and intentional
of a known
McCormack,
outcome.” Powell v.
395 U.S.
right, and
courts
been disinclined
486, 496,
1944,
89 S.Ct.
355
during
summary judgment
made
hear-
has it
“a
found
remedial scheme estab
ing,
relinquish
she did not intend to
by Congress
lished
sufficient to displace
to have the district court consider
remedy
provided
§in
1983.” Id. at
prоmptness
her reasonable
claim on its
521, 110
2510 (citing
S.Ct.
Smith v. Robin
merits. We find that her exchange with
son,
992,
3457,
468 U.S.
104 S.Ct.
82
the district court at the summary judg-
(1984),
L.Ed.2d 746
and Middlesex County
ment
did
not constitute a waiver of Sewerage Auth. v. Nat’l Sea Clammers
the claim.
Ass’n,
453
U.S.
101 S.Ct.
69
(1981)).
L.Ed.2d 435
The Court subse
B.
quently concluded that “[t]he Medicaid Act
Having determined that Doe’s reason-
comparable
contains no
provision for pri
able
claim is neither moot nor
judicial
vate
or administrative enforce
waived, we
may
consider whether Doe
en-
ment.”
Id. It
therefore allowed health
1396a(a)(8)
§
§
force
through
1983 ac-
providers
care
to sue the Commonwealth
Appellees argue
tion.
may
that she
of Virginia
§
1983 for violating a
Congress
provided
comprehen-
provision
statute,
1396a(a)(13)(A),
§
sive remedial scheme for individual state
regarding reimbursement
providers.
cases, thereby
Medicaid
precluding
years later,
Fifteen
the Supreme Court
court,
as means of review. The district
cited Wilder when it listed the Medicaid
having
moot,
dismissed Doe’s claim as
did
Act
an example
of a federal statute for
not reach
question.4
available,
given
1983 is
that the
Section
imposes liability
statute
does not
a private judicial
who,
any person
under the color of state
remedy
rights
that have been violated.
law, deprives
person
another
“of
City
See
Rancho Palos
Verdes
rights, privileges, or immunities secured
Abrams,
113, 121-22,
by the Constitution and laws.” Some
1453, 161
L.Ed.2d 316
statutes
private
foreclose
enforcement
absence of an “express provi
Because
pro
Wilder involved a
specific
sion or other
evidence from the
vision of the
Act very
different
statute
Congress
itself that
intended to
provision
here,
from the
at issue
we ana
enforcement[,]”
foreclose such private
lyze
invokes,
provision Doe
Supreme
“private
Court will find
enforce
1396a(a)(8),
according
guidelines
to the
only
ment foreclosed
when the statute it
Freestone,
set forth in Blessing v.
self creates a
U.S.
remedial scheme that
sufficiently comprehensive ...
S.Ct.
to demon
L.Ed.2d 569
congressional
(1997),
strate
preclude
intent to
determine whether that provi
*8
remedy
Wilder,
§
of suits under
1983.”
sion
private right
creates a
enforceable
520-21,
496 U.S. at
(quota
§
Chiles,
Doe ex rel.
v.
Doe
136
A.
(11th Cir.1998)
(same).6
F.3d
714
from a
Aside
reference
a string
sum,
may proceed
§
Doe
1983 to
1902(23)
§
citation to
Security
of the Social
failure Appellees
address
to comply
Act, which is the same provision as
the reasonable
provision
1396a(a)(23)
§
Act,
of the Medicaid
of the Medicaid Act. Because her claim is
1396a(a)(23)
§
did not cite
below. This
waived,
neither moot nor
we vacate the
appeal marks the first
time
cites
district court’s dismissal of
claim
1396a(a)(23)
specifically. Citing our rule
remand for further proceedings.
raised for
“issues
the first time on
III.
appeal
generally
are
not considered absent
circumstances,”
exceptional
Wheatley v.
Doe next appeals
the district
(4th
County,
Wicomico
390 F.3d
court’s decision to dismiss as moot her
Cir.2004),
claim
Appellees
Appellees argue
violated the
this Court
freedom of
choice
provision
should
consider Doe’s claim.
Act,
6. We have once before declined to dismiss a
but we did so on the unrelated
seeking
ground
sovereign immunity.
action
enforce
Antrican
1396a(a)(8),
Odom,
among
(4th
provisions
Cir.2002).
other
F.3d
*10
among
qualified pro-
the
Doe, however,
a
she has a choice
has not raised
operating
settings
hour” or made
the various
theory at the eleventh
viders
“new
type
the
strategy,”
living
in an institution
“a last-minute switch
are- alternatives to
designed to
SLP,
I,
this Court’s rule is
setting).
of tactics
II
(e.g., a
CTH or CTH
Below,
not
discourage. Id.
Doe did
consistently relayed to
Because DDSN has
upon
Act
of the Medicaid
provision
cite the
funding only
it
for a
approve
her that will
relies,
complaint
her
did
she
but
setting
setting,
and not a CTH II
CTH I
have denied her the
Appellees
claim that
being
denied her
Doe maintains
she is
among providers and she
right to choose
right
among qualified providers.
to choose
that claim before the district
argue
did
support
posi
record does not
Doe’s
The
court.
earlier,
noted
DDSN determines
tion. As
Moreover,
“pass
court did
the district
qualifies for
the
recipient
whether
claim,
albеit
Doe’s freedom choice
upon”
Then,
level of care.
after the
ICF/MR
1396a(a)(23).
§to
without reference
Cf.
right
exercises his or her
recipient
(4th
Grutman,
236, 242
Bakker v.
942 F.2d
community-based
home-based and
choose
Cir.1991) (“Generally,
appellate
a federal
rather
than
services
services
ICF/MR
consider an issue which was
may
court
not
(that is,
in an institution or nurs
services
court.”). At
upon by
the trial
passed
home),
which set
ing
DDSN determines
sum
hearing
Appellees’
the
motion for
here,
ting
recipient’s
will meet the
needs—
mary judgment,
repeatedly
the court
Doe’s need for residential habilitation ser
position
that Doe’s
sought confirmation
(SLP
an apartment
vices—whether
right
was that she had been denied the
(CTH
I),
I),
group
home
or a
foster
facility
of her
move into the CTH
II).
(CTH
must determine
home
parties
The court asked both
choice.
required
the
because it must in
Doe,
team, or
whether
Doe’s treatment
recipi
sure that it meets the needs of the
among
to choose
DDSN had
recipient
that it
places
ent and
settings
various
rehabilitation
environment,
required
least restrictive
authority
parties
and on what
relied
See,
e.g.,
Olm
state and federal law.
divergent points of view. The
for their
Zimring,
stead v. L.C. ex rel.
taken
inquired
court also
whether Doe had
(1999);
359
I,
II,
among
CTH
and SLP
serviсes covered under
An
choose
CTH
the waiver.
settings
and Antrican
right
individual’s
to receive a service is
—Olmstead
(4th Cir.2002)
Odom,
A obligated people State is all one, emergency not because DDSN deter enrolled in the opportu- the waiver with II setting appropri mined that a CTH was nity for to all access needed services O’Bannon, ate. 447 U.S. at by covered the waiver and the Medicaid Cf. (“[Wjhile a patient S.Ct. 2467 plan.... State This does not mean pay to continued for care in the benefits to participants all waiver entitled to are choice, qualified institution of his he has no theoretically all receive services that expectation enforceable of continued bene could be available under waiver. in an institution that pay fits to for care may procedures The State control based unqualified.”). determined to on the need that individuals have for has been Doe, plan 7. The March of care that Doe would be sent to a CTH I or CTH II and, so, family, developed and DDSN officials facility select between if who would setting noted her desire to be in "a residential types settings. the two The recommenda- location within the Columbia area chosen plan merely that Doe tion in the of care stated family” Cerebral Pal- and to United "will receive residential habilitation from sy, provider. provider, as her J.A. CTH II approved provider.” J.A. 179. 179. But the did not indicate whether *12 PART, 1396a(a)(23) IN AFFIRMED IN VACATED clearly drawn to “is Section PART, to re- AND REMANDED give recipients of provider the Medicaid ceive care from choice, government’s rather than the
their
WHITNEY,
concurring
Judge,
District
F.2d
Baggiano,
v.
804
choice.” Silver
dissenting
in
judgment
part
(11th Cir.1986),
1211,
abrogated
1217
on part:
v.
Re-
by Lapides
Bd.
grounds
other
of
in Part
I concur in the result reached
Ga.,
535
Sys.
U.S.
gents
Univ.
of
of
majority opinion,
III of the
122
C.
appeal
claim on
centers
рrincipal
Doe’s
Because Doe’s freedom of choice claim
question
around the
of whether the State’s
law,
fails as matter of
we do not find it
“respite”
decision to
her with
ser-
1396a(a)(23)
§
necessary to decide whether
group
in a
qualified
vices
CTH
home
private right
confers a
on individuals that
(instead of “residential
ser-
habilitation”
may be enforced under
1983. Even as
type
setting) comports
vices in a similar
of
may proceed under
suming Doe
requirement
with the
that it furnish “assis-
1396a(a)(23),Appellees
are enti
enforce
“eligible
tance” to
individuals” with “rea-
summary judgment
tled to
on Doe’s claim.
promptness.”
sonable
U.S.C.
Lasker,
471, 475-76,
Burks
U.S.
Cf.
1396a(a)(8).
In order to ensure that
(1979) (hold
type pro- she seeks to be “assistance” IV. vided; second, that receiving, Doe is receiving, or at risk of a level of “assis- reasons, foregoing For we affirm the tance” does meet level of grant summary judg- district court’s “assistance” to which she is entitled Appellees’ ment favor on freedom law. neither of conditions claim, Because these of choice vacate the district court’s satisfied, can now be I would hold that Doe grant summary judgment on Doe’s rea- claim, standing prosecute lacks her “reason- sonable and remand for promptness” consequently able claim and proceedings further consistent with this opinion. would find that claim to be moot.
A. participated), South Carolina’s Waiver agreement with Health and Human Ser- context, place proper To this issue obligates “provide vices it to for an evalua- principles foundational must be laid at four (and reevaluations, tion periodic at least analysis. the outset of the First is the annually) of recipient’s] [a need for [an “right” asserted principle Doe’s' (J.A. 275.) intermediate level of care].” have certain Medicaid services furnished *13 promptness wholly is principle with reasonable con- Last is the sympathy or tingent being eligible on Doe deemed for charity are not sufficient bases for a State in need of those services. See to continue providing Medicaid to someone 1396a(a)(8)(“[A]ssistance shall be satisfy very U.S.C. who does not stringent furnished with reasonable to criteria for eligibility. recipient Once a added)). (emphasis all individuals.” ineligible determined to be after being af- hearing, forded a fair agency “the must principle Second is the related that Med- ... discontinue services after the adverse exist, eligibility, icaid once found to does 431.232(d) decision.” 42 C.F.R. (empha- give perpetual right not rise to to Medic- added). sis support. aid-funded Doe’s level of services (and terminated) may adjusted even to B. changes take into account bona fide in her mind, principles With these four in Doe’s eligibility, needs provided or that she is personal story recounting. bears process prior accorded due to adverse State has never deemed meeting Doe as 435.930(b) (“The action. See C.F.R. (J.A. the criteria for mental retardation at agency must ... furnish Medicaid regular- 264), and it consistently treated with ly to all eligible they individuals until are skepticism her claim disability” of “related added)); ineligible.” (emphasis to be found based on her palsy epilepsy cerebral 431.220, §§ (providing C.F.R. -.241 for a (J.A. 261). However, at because she ap- fair on the request aggrieved of an peared experiencing to be “an acute exac- recipient). erbation of her which may seizures Third principle is the that the state not lifelong,” continue to be severe or DDSN only right changed has the to consider how open left to provisional door Doe’s impact eligibility, circumstances but pro- admission into the Waiver MR/RD duty also has an affirmative to (J.A. 261.) gram. at periodic conduct reevaluations to that end. Also, time, In order to facilitate an efficient allocation around this Doe’s mother (who primary giver) began of scarce Medicaid resources to indi- was her care those need, critically viduals most in reg- experiencing psychiatric episodes federal that lim- require ability ulations provide adequate states “redetermine ited her to care (J.A. 263.) eligibility recipients, of Medicaid Accordingly, with for Doe. at respect may change, began to circumstances that providing residential habilitation every at least 12 months.” C.F.R. services to Doe the form of in-home 435.916(a). Likewise, assistance,1 respect daytime living health care and services rendered under the Medicaid which were intended to ease the burden (in uprooting Waiver which Doe Doe’s mother without Doe from MD/RD If, 1396a(a)(8) (23) majority §§ as the holds Part III.B. of the for the State to оpinion, lead opposed DDSN is vested law with the in-home residential habilitation as habilitation, appropriate setting "select[] out-of-home residential services,” provision incep- of waiver then it was Doe’s lawsuit was meritless even at its a violation of either 42 U.S.C. tion. 265.) (J.A. since, by at cation family. majority’s her This solution choice own definition, comply “respite” was also intended to with the are furnished obligation to serve Doe the least to the regular giver’s State’s “due care absence or relief,” supra appropriate environment restrictive need for note which de- (J.A. her functional limitations. very scribes the facts of this case giving 250.) place group to the decision to Doe in a rise home setting. mother
The mental health of Doe’s dete- subsequent significantly riorated over Moreover, I find no basis to take issue determined months and DDSN officials inherently “temporary” with the nature of facing an “imminent risk” of Doe was “respite” these since the State giver due to inca- losing primary care impute should not have to upon itself a 267.) (J.A. pacity. Accordingly, long-term obligation keep a set- *14 . less restrictive environment in-home ting that it believes is more restrictive option сare a longer was no viable and the necessary than to meet her needs. In- promptly sought State to make available deed, majority correctly the in determines out-of-home residential habilitation ser- Part III.B. legally that DDSN is not obli- (foster home) in I setting. vices a CTH gated keep Doe in a II facility CTH (J.A. 267.) satisfy at This did not Doe and simply preference, because that is her however, family, her who insisted that she is free to move Doe to restrictive less placed be in an even more restrictive CTH setting appropriate more to her needs. Yet home) setting. Ultimately, II (group the II.B., in majority paradoxically Part the capitulated State to Doe’s demands and finds that the State has not ceased its placed her on an interim basis in the New- allegedly illegal conduct for the sole reason berry facility, II dispute CTH until the in “only Newberry Doe is the II CTH over a permanent placement suitable could respite or until her [services] true sta- be sorted out. (J.A. 384.) tus is determined.” The incongruity of these two conclusions could
Although receiving exactly Doe was not be more manifest: How can Doe’s level of care she desired once she was temporary in placement facility a CTH II Newberry facility moved CTH II in (this until a more appropriate placement is July being the reason that the identified be indicative of the State’s con- district court dismissed Doe’s “reasonable tinuing provide required failure to promptness” moot), Medic- claim as the State aid classify promptness, services reasonable “respite” chose to these services as per- when at the same time we hold that Ap- rather than “residential habilitation.” placement manent at a II parently, it is in the subtle distinction CTH home is be- “respite” required perma- tween and “residential law and that her habilita- majority placement tion” that the nent finds live claim. should be determined However, majority, unlike the I upon particular eligi- find no based her needs and basis to take issue with the bility State’s classifi- status?2 Ironically, adage good goes unpun- Doe has not been removed from that "no deed to-date, facility "respite” a CTH II by using indulgence and so the ished” the State's in al- majority lowing stay setting worries are so Doe to of her choice ephemeral continuously pending in have legal challenges nature been her resolution of provided by provide support the State for more than three for the conclusion that the years, being alleged provide with all indications the State State’s failure to legal will them ongo- continue until all services with reasonable (both level) proceedings ing. dangerous precedent here and at the State This now encour- Today’s holding proves ages possible thing: been concluded. to do the worst states II she does facility from a CTH where judg- court’s the district the time of
At also now intends to discon- belong, centered around but ment, legal battle placed in habilitation services ultimately would be tinue her residential whether home) in facility, con- investigation because an into (group altogether, CTH those of her wishes and formity with her has confirmed that she her “true status” placed whether she would family, stringent eligibility cri- not meet the does home) (foster in conform- setting, a CTH intermediate level of teria ICF/MR Plan of Care approved ity with providing far from addition- care. Yet 348-49.) (J.A. time. at the effect against claim support al for Doe’s have been a live there to In order for unreasonably delaying or with- State for surrounding Doe’s “reasonable controversy services, turn of events holding claim, one of these at least promptness” claim, since stаnd- squarely forecloses have to result outcomes would possible promptness” ing to assert a “reasonable to be furnished of her the denial necessarily presupposes the re- violation prompt- reasonable Medicaid services with for the ser- cipient’s continuing eligibility today that the majority tells us ness. vices denied. I) (CTH by the State placement advocated pick up again where we last left Here we deni- any impermissible would not result story. Doe’s 2003 Plan of from Doe’s off Doe has no since al of Medicaid *15 (J.A. 170-88) in effect for a Care at was of her level right to self-determine legal year, one after period approximately of determined that she and DDSN had care superseded by a new Plan of which was care. only a I level of entitled to CTH was (J.A. 113-15). May in at This is Care (CTH II) placement And the alternative legal requirement, de- consistent with would, attorney, pro- in words of her above, recipient’s eligibili- that each tailed that we have placement “the vide Doe with annually. Following the ty be reevaluated (J.A. 338), if, even from requested” at evaluation, approved for a Doe was placement perspective, such DDSN’s year eligibility of “residen- сonsecutive wholly or even temporary to be intended (i.e., through tial habilitation” words, matter no In other gratuitous. sched- level of care evaluation Doe’s next outcome, gotten would have what 2005). early uled for or what was what she wanted she either thereafter, in around June Shortly or Thus, up- in nothing the record entitled. began to realize givers care Doe’s finding that Doe’s the district court’s sets fake frequently “initiate [ ] that Doe would moot. claim was promptness” “reasonable seizure[s],” they inter- which pseudo
C. that behavior” “manipulative to be preted unnecessary dependence created “an Doe’s dismissal of The district court’s 116.) (J.A. reasonably This at others.” not, claim should promptness” “reasonable whether Doe question caused DDSN therefore, simply on the fact vacated greater capacity for have “the might being displaced of that Doe was at risk (J.A. 116), at es- degree independence,” of facility upon determination from a II CTH fact that a sudden light in pecially However, the factual her “true status.” of epi- severity of her “exacerbation” changed somewhat since landscape has finding primary factor lepsy was a now know judgment. We district court’s for residential medically qualified Doe was only to remove intends not that the State appeals and final exhaustion of administrative services to deny provision of Medicaid judicial review. pending resolution of eligibility question is in those whose just sequence the Medicaid The of events described habilitation services that, today, all doubt as of place in the first must remove Waiver MR/RD (J.A. 261). promptness” “reasonable claim is prompted This DDSN Doe’s moot, any because she lacks basis to assert documenting Doe’s true seizure fre- begin abilities, currently eligible to receive the quency adaptive functioning she is particular that her limita- services that she claims are be- together suggested justify ing theory of the case is were not so severe as to denied.3 tions (J.A. premise that her intermediate level of care. built on the entitlement ICF/MR 299-300.) to residential habilitation services is con- Plan of tained within her March 2003 information, Notwithstanding new However, that Plan of no Care. Care is judgment a favorable as well as longer relevance because it was court, district DDSN allowed Doe to finish May superseded by the 2004 Plan of Care. May out the term of her 2004 Plan of Care May point And Doe cannot now to the setting. in a Howev- group CTH home 2004 Plan of Care as the source of er, April following her annual level entitlement to residential habilitation ser- year, of care evaluation earlier that same vices because that Plan of would have Care by Doe was notified she no expired May eligibility and her longer eligibility satisfied the criteria for these services has never been extended care, intermediate level of ICF/MR (for a more current Plan of the rea- Care consequence as a her Medicaid son, course, that Doe has been found services would Waiver be termi- MR/RD ineligible). majority leaves me baffled 7, 2005, May nated effective she unless how, remand, upon as to the district court timely requested hearing, a fair which she should about go deciding whether Doe is 5, 2006, days following did. On June five prospective now entitled to relief4 based hearings, Hearing up- a DHHS Officer *16 alleged on an entitlement to services found ineligibility held the determination of in a in a Plan expired years ago, of Care that thoughtful comprehensive 34-page ad- turning eye while blind to the fact (J.A. 297-330.) ministrative order. recent proceedings state administrative That appeal decision is now on to the have resulted a determination that Doe Court, South Carolina Administrative Law qualified is not even to be a Medicaid continuing and the State is “res- recipient. pite” until services Doe has exhausted her (See appeals. 28(j) filing only Rule dated Au- document in the record show- 2007.) 6, gust ing present that Doe has a entitlement to parties' 3. The briefs focus on whether these er Doe has been furnished with reasonable given state administrative decisions should be promptness the services for which she has preclusive pursuant effect to Univ. Nonetheless, Tennes- eligible. been deemed the State Elliott, 788, 3220, see v. 478 U.S. 106 S.Ct. 92 administrative decisions must be factored into argument L.Ed.2d 635 This line of standing analysis, maintaining our because point. misses the The state administrative legally cognizable interest in the outcome of estoppel pres- actions are not collateral in the presupposes eligibility this lawsuit that Doe's only yet ent case not because there has not changed way has not in a that would render (on judgment been a final account of Doe's sought nugatory. the relief appeal to the State Administrative Law Court), importantly but more because there is retroactive, Any prayer compеnsatory for identity no of issues: the issue before the relief would be barred the Eleventh State administrative decisionmakers is wheth- West, 582, Lynn Amendment. See v. 134 F.3d eligible er Doe is for Medicaid ser- ICF/MR (4th Cir.1998). 587 all, vices at while issue before us is wheth-
365 moot at the time of the claim was a recent Administra- is services Medicaid Officer, I judgment, would now dis- Hearing district court’s DHHS tive Order moot, very Fed. at the pursuant as appeal this Court miss her with filed that Doe determining addi- 28(j), P. to the district court for R.App. least remand ser- “respite” to receive continue to how these findings respect should tional ser- vices, not “residential habilitation” but at the admin- developments post-judgment of the adminis- vices, the outcome pending standing. impact level istrative from the termination appeal of her trative II. To program. Waiver
Medicaid MR/RD me, entirely appropriate that it seems I that Doe’s “reasonable Because believe having found agency, State moot, I claim is would not promptness” “resi- comprehensive ineligible to be thorny impression of first reach the issue fund would habilitation” dential § 1983 of whether U.S.C. this circuit 42 pending services necessary “respite” only remedy alleged Doe with provides decision, judge’s law the administrativе 1396a(a)(8). violations of U.S.C. “res- majority’s own definition by the since Nonetheless, majority does because the temporary gap- to be a is pite” intended II.B. of the question Part reach this solu- long-term not a measure and filling explain compelled I feel opinion, lead pro- being in fact Doe is tion. And since majority’s holding is why I believe time, she at this “respite” services vided legally incorrect. is claim that no basis to State not believe that the respect, do With for which she the services failing to furnish Freestone, Blessing v. test of three-factor degree required with the 137 L.Ed.2d S.Ct. promptness. (1997), analysis in control our should cannot, today, sum, more current Supreme Court’s light of the that she is entitled showing make a Doe, 536 U.S. Gonzaga opinion in Univ. residential habilitations L.Ed.2d controversy can no live place, first there intended to (2002), explicitly was wheth- derivative issue of surrounding the uncertainty stemming resolve considerable in a been furnished er those services prior opinions from the Court’s Moreover, manner. reasonably prompt opinion, the Su- Gonzaga In the subject.5 *17 ultimately will if that Doe even we assume a fundamental reemphasized preme Court appeal administrative prevail had become obscured principle habilita- for “residential eligibility that her an Nothing of Blessing: “short cases like reinstated, I have no tion” will “sup- will right” conferred unambiguously at that to believe that would reason brought under of action port a cause administra- of state point defy the order 283, The 2268. Id. at S.Ct. 1983.” place refuse to judge and tive law judi- that the on to went hold Court then facility appropriate in an promptly of determin- exclusively one cial function Thus, no this is services. those provides by enact- “Congress intended” ing what was) (if capa- that is ease longer ever which, like the statute —a task ment of review. yet evading repetition ble of interpretation, statutory of other matters major- Therefore, agreed if I with the even in the first instance is to be resolved promptness” “reasonable that Doe’s ity any ambiguity in our own ("[0]ur 278, ... resolve [prior] ... S.Ct. 2268 5. Id. at 282-83, 122 S.Ct. id. at opinions.”); see also models [have been] area opinions in this test). Blessing (limiting import of the granted certiorari clarity. therefore of We looking retary, to the “text and structure” of the plans State for medical assis- 285-86, relevant statute. Id. at tance. 42 U.S.C. 1396. Due to the nature of spending power such, an finding congressional absence of enactments as we
intent
privately
begin
analysis
create a
our
with a presumption
enforceable
FERPA,
right under
Gonzaga
Court Congress has not intended to create a
considered as relevant
specific
three
fea- private remedy.
See Pennhurst State
tures of the statute:
It
no
Halderman,
“contain[ed]
Hospital
School &
rights-creating language;” it had
“ag-
an
1, 28, 101
(1981)
S.Ct.
367
Thus,
public policy.
an
funding.
important
like
therance of
for federal
qualify
1396a(a)
states,
FERPA,
is written “in
al
section
also addresses the
statute
practice,”
policy
of
indirectly,
imposes
terms
institutional
beit
as it
on
insofar
specifically
not
address “individu-
and does
which attach to the
them certain conditions
noncompliance. Gonzaga,
of
al instances”
money
receipt
(though
of federal
it does
288,
Indeed,
122
at
S.Ct. 2268.
536 U.S.
categorically
compliance
mandate state
daily
of
respect to the
administration
reject
insofar as states remain free to
fed
Congress chose to
plans,
Medicaid
state
But individual
re
funding).
eral
only
“comply
that states
substan-
require
cipients
third-party
like Doe are at best
requirements
of section
tially” with
arrangement,
and as
beneficiaries
to remain
to receive
1396a in order
essentially “stranger[s]”
such are
to the
funding.
42 U.S.C.
1396c.
federal
See
underlying bargain. Blessing, at
U.S.
Gonzaga
singled out
Similarly, the
Court
349,
(Scalia, J., concurring).
presumption that Congress would have
deemed the remedy administrative both
appropriate adequate to address the Thus,
problem.6 any inference that Con
gress might have intended create indi rights vidual judicially are action CATAWBA INDIAN TRIBE able under U.S.C. 1983 seems weak CAROLINA, OF SOUTH indeed. Gonzaga, 289-90, 536 U.S. at Plaintiff-Appellant, S.Ct. 2268. v. If Congress had subject intended to the countless Medicaid decisions made state CITY HILL, OF ROCK SOUTH agencies each day to scrutiny the of the CAROLINA, Defendant- judiciary, federal expect would to find Appellee. clear and language unmistakable No. 05-2050. stating statute as much. In the absence of language, such I cannot be so cavalier as United States Appeals, Court of majority in imputing Congress an Fourth Circuit. intent to allow dissatisfied recipi- Medicaid ents to have their grievances routine aired Argued: 25, Oct. 2006. in federal court auspices under the 42of Decided: Sept. U.S.C. and instead would exercise skepticism cautious toward the recog- “rights” nition of new by implication which Supreme adopted Court in the now-
controlling Gonzaga opinion. Because I
cannot meaningfully distinguish between provisions Act Medicaid relevant
to Doe’s claims and analogous features
of FERPA with respect to which the Gon-
zaga Court found no privately actionable course,
6. Of
if a state failed to
teenth Amendment
supply
would
recipient
adequate pre-depri-
these
Goldberg
circumstances.
Kelly,
Cf.
process
vation due
form a
fair hear-