This appeal challenges the district court’s judgment enforcing a Medicaid recipient’s right of action under the Civil Rights Act, 42 U.S.C. § 1983, based on a state Medicaid agency’s deprivation of his federal statutory right to medical assistance under the Medicaid Act, 42 U.S.C. § 1396 et seq. The issues are: (1) whether the Louisiana Department of Health and Hospitals (LDHH), the state Medicaid agency, unlawfully denied the recipient’s claim under the Medicaid Act’s program for “early and periodic screening, diagnostic, and treatment services” (EPSDT) by refusing to pay for his medically prescribed disposable incontinence underwear that is necessary to ameliorate his physical and mental conditions caused by spina bifi-da, which results in his total bowel and bladder incontinence, loss of sensation, and continual risk of infection; and, if so, (2) whether LDHH’s violation of the statute deprived the recipient of a right secured by federal statute for which he may bring an action for redress under 42 U.S.C. § 1983.
I.
A.
The plaintiff, S.D., a sixteen-year-old Medicaid recipient, is afflicted with spina bifida, a congenital defect characterized by imperfect closure of the spinal column. Because of his birth defect, S.D. has total bowel and bladder incontinence and does not have sensation below his waist. Thus, he cannot sense potentially infectious skin irritations resulting from incontinence. S.D. also has two club feet and has trouble walking. He requires leg braces, forearm crutches, and a swing gate to move over short distances. He requires a wheelchair to move over long distances.
As an infant, S.D. was placed in foster care. He was adopted by his parents, and he receives Medicaid benefits pursuant to a federal policy to encourage the adoption of special needs children. He is a qualified recipient of Medicaid’s EPSDT program, under which states provide, in accordance with federal law, screening, diagnosis and treatment services to individuals under age twenty-one. Before S.D. moved to Louisiana with his family, he was provided with disposable incontinence underwear by the Virginia Medicaid program.
In 2002, S.D.’s Louisiana physician, Dr. Ernest Edward Martin, Jr., Chairman of the Department of Family Medicine of the Ochsner Clinic, prescribed disposable incontinence underwear as health care that is necessary to ameliorate S.D.’s mental and physical conditions. Specifically, Dr. *585 Martin concluded that the prescription of such underwear “was physically necessary because it draws moisture away from the skin which prevents chronic irritation and infection from urine wetness.” R. 191. According to Dr. Martin, “[t]his protection is especially important due toS.D.’s.lack.of sensation below the waist. Because of this lack of sensation, S.D. would not be aware if he developed an infection and an infection could then progress quickly.” Id. Finally, Dr. Martin determined that without such a prescription, S.D. would be home bound, isolated, and unable to attend school or engage in other age-appropriate activities. Thus, the prescription was necessary from a mental health standpoint as well. S.D. submitted a claim for medical assistance for the cost of the prescription to LDHH under the Louisiana State Medicaid Plan.
LDHH denied S.D.’s claim stating that “the appliance, equipment, supplies or service is available through another agency,” 1 “the item is not considered medically necessary” and that it was a “non-medical supply not covered by Medicaid.” S.D. appealed administratively. The state administrative law judge ruled in favor of LDHH without referring to the Medicaid EPSDT provisions. Rather, the administrative law judge concluded that LDHH properly denied coverage because “diapers” are “specifically excluded from coverage” under the Louisiana State Medicaid Plan.
S.D. brought this action in the district court against LDHH under 42 U.S.C. § 1983 seeking injunctive and declaratory relief. On cross motions for summary judgment, the district court granted S.D.’s motion and denied that of LDHH. The district court concluded that under the Medicaid Act’s EPSDT program a qualified recipient is entitled to the health care, services, treatment and other measures described in § 1396d(a) of the Act when such care or services are necessary for corrective or ameliorative purposes; the EPSDT provisions of the Medicaid Act create rights enforceable by § 1983; and LDHH deprived S.D. of his federal right to EPSDT benefits in violation of the Medicaid Act. Accordingly, the district court rendered summary judgment declaring that S.D. is entitled to medical, assistance for the prescribed disposable incontinence underwear under the EPSDT program and ordering LDHH to provide medical assistance to S.D. for that purpose. LDHH appealed.
We review the' district court’s decision de novo, both because it is a summary judgment, and because it requires us to answer issues of statutory interpretation.
See Hodges v. Delta Airlines,
Inc.,
B.
Medicaid is a cooperative federal-state program through which the federal government provides financial aid to states that furnish medical assistance to eligible low-income individuals.
See
42 U.S.C. § 1396 et seq.;
see also Atkins v. Rivera,
*586
To qualify for federal assistance, a state must submit to the Secretary and have approved a “state plan” for “medical assistance,” 42 U.S.C. § 1396a(a), that contains a comprehensive statement describing the nature and scope of the state’s Medicaid program. 42 CFR § 430.10 (1989). “The state plan is required to establish, among other things, a scheme for reimbursing health care providers for the medical assistance provided to eligible individuals.”
Wilder v. Virginia Hosp. Ass’n,
The Medicaid Act defines “medical assistance” as “payment of part or all of the cost of ... care and services” included in an enumerated list of twenty-seven general health care categories (“medical assistance categories”). 42 U.S.C. § 1396d(a). Some of the categories must be included within state plans (mandatory categories) while others may be included at the option of the state (optional categories). 42 U.S.C. § 1396a(a)(10)(A).
The Act requires that each state plan provide EPSDT health care and services as a mandatory category of medical assistance. The Act describes EPSDT as “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 twenty-one;”. 42 U.S.C. §§ 1396a(a)10(A), 1396d(4)(B). Subsection (r) further defines EPSDT services as, inter alia, “[s]uch other necessary health care, diagnostic services, treatment, and other measures described in [§ 1396d(a)] to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the State plan.” 42 U.S.C. § 1396d(r)(5).
Thus, EPSDT is a comprehensive child health program designed to assure the availability and accessibility of health care resources for the treatment, correction and amelioration of the unhealthful conditions of individual Medicaid recipients under the age of twenty-one. See CMS State Medicaid Manual § 5010.B [hereinafter “SMM”]. A principal goal of the program is to “[a]s-sure that health problems found are diagnosed and treated early, before they become more complex and their treatment more costly.” Id.
Louisiana’s State Medicaid Plan was approved by CMS. As part of its state plan, Louisiana proposed and CMS approved the provision of the optional medical assistance category of “home health care ser *587 vices” to Louisiana’s general adult Medicaid population. See 42 U.S.C. § 1396d(a)(7). Additionally, Louisiana, proposed and CMS approved a “payment program” which excludes certain medical supplies from the “home health care services” made available to the general adult Medicaid population 3 The parties agree that the “payment program” exclusion implicitly disallows payment for disposable incontinence underwear for adult recipients oyer the age of twenty-one. The Louisiana state plan approved by CMS does not, however, explicitly or implicitly, exclude the prescription of incontinence supplies from the EPSDT benefits which must be provided to EPSDT children, i.e., recipients under the age of twenty-one qualified for the EPSDT program. 4
In its appeal, LDHH does not challenge the district court’s determinations that (1) S.D. is eligible for coverage by the EPSDT program, (2) S.D. has physical and mental illnesses and conditions caused by permanent bowel and bladder incontinence resulting from an irreparable birth defect of spina bifida, and that, (3) the medical prescription of disposable incontinence underwear is a health care, service, treatment, or measure necessary to correct or ameliorate S.D.’s unhealthful physical and mental conditions discovered by the screening services. Thus, there is no factual or legal dispute as to the conclusions that S.D. is eligible to receive EPSDT services and that the medical assistance for the prescription of disposable incontinence underwear he seeks is necessary to ameliorate his unhealthful conditions discovered by screening within the terms of the EPSDT program.
LDHH contends, however, that, despite the necessity of the prescription of incontinence underwear to the amelioration of S.D.’s condition, the denial of S.D.’s claim should be reinstated because: (1) The district court overstated the scope of the. EPSDT mandate by adopting the “convenient shorthand” or “erroneous assumption” that a state .is required to provide EPSDT children with any service that could be provided for in a state plan, even if the service is not one that the state has elected to provide;' (2) The medical prescription of disposable incontinence underwear, although necessary to ameliorate S.D.’s condition for ESPDT purposes, does not constitute a health care, service, treatment or measure “described in Section 1396d(a)” of the Act; (3) Louisiana’s State Medicaid Plan, as approved by CMS, excludes incontinence supplies from coverage under the EPSDT program; (4) LDHH had the implied authority or discretion to exclude this type of health care or service without- the approval of CMS; and (5) Section 1983 of Title 42, which affords a cause of action for the “deprivation of any rights ... secured by [federal] laws,” does not provide S.D. with a right of action to sue LDHH because the provisions of the Medicaid Act upon which S.D. relies does not create an enforceable “right” within § 1983’s meaning.
*588 II.
LDHH sets the stage for all of its arguments by contending that the district court’s decision was based on the “erroneous assumption” or “convenient shorthand” that the EPSDT mandate requires a state to provide eligible children with any health care, service, treatment or other measure that could be provided for in its state plan, even if the health care or service is not one that the state has elected to provide. LDHH conveniently omits a crucial part of the district court’s holding, however, because that court said, as does the statute, that states participating in Medicaid are required to provide medical assistance under the EPSDT program only for health care, services, treatments and other measures (1) described in § 1396d(a), that are (2) necessary to correct or ameliorate defects and physical or mental illnesses and conditions discovered by the screening services. 5 Moreover, LDHH has failed to demonstrate how the statute appropriately may be construed more narrowly in view of its plain words, legislative history, authoritative interpretation by CMS, and the consonant decisions of four other federal Circuits. Nevertheless, in order to avoid confusion and provide a firm foundation for addressing the issues, we will set forth our understanding of the nature and scope of the EPSDT mandate.
In determining the meaning of the Medicaid Act’s EPSDT provisions, the starting point is the language of the statute itself.
United States v. Ron Pair Enters., Inc.,
The crucial phrases of § 1396d(r)(5) provide that EPSDT care and services include: (1) “health care, diagnostic services, treatment, and other measures described in [§ 1396d(a) ]” (2) “necessary ... to correct or ameliorate ... conditions discovered by the screening services” (3) “whether *589 or not such services are covered under the State plan.” The natural reading of § 1396d(r)(5)’s phrases is that all of the health care, services, treatments and other measures described by § 1396d(a) must be provided by state Medicaid agencies when necessary to correct or ameliorate unhealthful conditions discovered by screening, regardless of whether they are covered by the state plan. This reading is also required by the grammatical structure of § 1396d(r)(5). The medical assistance made available to EPSDT children must be for health care described in the list of twenty-seven categories set forth in § 1396d(a)-modified by the requirement that it must be necessary for corrective or ameliorative EPSDT purposes-further modified by the statutory mandate that it must be provided whether or not it is covered under the state plan. The language and structure Congress used cannot' be read in any other way without rendering the crucial phrases meaningless.
The plain meaning of statutes is conclusive, except in the “rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the- intentions of its drafters.”
Griffin v. Oceanic Contractors, Inc.,
The EPSDT program was added to thé Medicaid Act in 1967. Under the original EPSDT provision, all Medicaid-eligible individuals under age twenty-one were entitled to “such early and periodic screening' and diagnosis ... to ascertain their physical or mental defects, and such health care, treatment, and other measures to correct or ameliorate defects and chronic conditions discovered thereby, as may be provided in regulations of the Secretary.” (emphasis added) Pub.L.90-248, 81 Stat. 929, codified ' at § 1396d(a)(4)(U.S.Code 1988 edition). ' Congress thus initially authorized the Secretary to make regulations providing for treatment and health care measures to correct or ameliorate defects and chronic conditions. The Secretary promulgated regulations which provided for care and treatment that he designated as “discretionary services” and provided that a state plan “may provide for any other medical or remedial care” defined as medical assistance by the Act. See 42 CFR § 441.57.
By 1989 Congress had become concerned that, because,the original EPSDT health care, services and treatment provision was optional and not described in detail in the statute, many states had chosen not to provide EPSDT-eligible children 'all the care and services allowable under federal law. See Senate Finance Committee Report, 135 Cong. Rec. 24444 (Oct. 12, 1989) (“The EPSDT benefit package has never been described in detail in the statute.... Additionally, while states have always had the option to do so, many still do not provide to children participating in EPSDT all care and services allowable under federal law, even if not otherwise included in the state’s plan.”) Congress therefore amended the Act in 1989 to mandate that a state agency must provide EPSDT-eligible children “[s]uch other necessary health care ... described in [the Act’s § 1936d(a) definition of ‘medical assistance’] to correct or ameliorate defects ... illnesses and conditions discovered by the screening services, whether or not such services are covered under the State plan.” 42 U.S.C. § 1396d(r)(5) (emphasis, added). Consequently, Congress in the 1989 amendment imposed a mandatory duty upon participating states to provide EPSDT-eligible children with all the health care, services, *590 treatments and other measures described in § 1396d(a) of the Act, when necessary to correct or ameliorate health problems discovered by screening, regardless of whether the applicable state plan covers such services.
Furthermore, the Senate Finance Committee noted that the 1989 amendments “require that states provide to children all treatment items and services that are allowed under federal law and that are determined to be necessary ... even if such services are not otherwise included in the State’s plan.” 135 Cong. Rec. S13234 (Oct. 12, 1989) (emphasis added); See also 135 Cong. Rec. S6900 (June 19, 1989)(state-ment of Sen. Chafee) (Under amendment “Medicaid would cover any medically necessary service identified as necessary through the EPSDT program”); H.R. Conf. Rep. 101-386, at 453 (1989) (amendment would require States “to provide any service that a State is allowed to cover with Federal matching funds under Medicaid that is required to treat a condition identified during a screen, whether or not the service is included in the State’s Medicaid plan.”) Thus, the text of the statute and its legislative history demonstrate that states participating in the Medicaid program must provide all of the health care and services permitted under § 1396d(a) when necessary to correct or ameliorate a defect or condition discovered by screening.
Accordingly, every Circuit which has examined the scope of the EPSDT program has recognized that states must cover every type of health care or service necessary for EPSDT corrective or ameliorative purposes that is allowable under § 1396d(a).
See Collins v. Hamilton,
CMS, the federal agency charged with the responsibility of administering the Medicaid Act, also recognizes that under the EPSDT mandate states are required to provide any service which can be provided under § 1396d(a) if such service is necessary to correct or ameliorate a defect, illness or condition identified by screening. In the State Medicaid Manual, the “official medium by which [CMS] issues mandatory, advisory, and optional Medicaid policies and procedures to the Medicaid State agencies,” 6 CMS explains:
*591 OBRA 89 amended §§ 1902(a)(43) and 1905(a)(4)(B) and created § 1905(r) of the Social Security Act (the Act) which set forth the basic requirements of the program. Under the EPSDT . benefit ... .the Act requires that any service which you are permitted to cover under Medicaid that is necessary to treat or ameliorate a defect, physical and mental illness, or a condition identified by a screen, must be provided to EPSDT participants regardless of whether the service or item is otherwise included in your Medicaid plan.
CMS State Medicaid Manual (“SMM”) § 5110 (1990)(emphasis added). Thus, according to CMS “[t]he law requires the provision of the services needed by EPSDT clients if the services can be covered under the Medicaid program.” Id., § 5340 (emphasis added).
Accordingly, CMS interprets the Act to allow a state Medicaid agency to fix or adjust the amount, duration and scope of services provided under the EPSDT benefit only if that regulation “comports with the requirements of the statute that all services included in [§ 1396d(a)] of the Act that are medically necessary to ameliorate or correct defects and physical or mental illnesses and conditions discovered by the screening services are provided.” 7 SMM § 5122. Moreover, the agency construes the statute to require that any limitation imposed must permit and afford services “sufficient to achieve théir [EPSDT] purpose (within the context of serving the needs of individuals under the age of twenty-one).” /Id. -Consequently, under the CMS interpretation, a state Medicaid agency may regulate the amount, duration and scope of medical assistance provided, but its regulation must comply with the statutory, requirement that all health care and services described in § 1396d(a) that are necessary to the corrective and ameliorative purposes, of the EPSDT program must be provided.
On the contrary, appellate counsel for LDHH contend that the twenty-seven health care and service categories enumerated in § 1396d(a) are only hollow forms that each state may fill with as few or as many types of health care, treatment, services and measures as it deems appropriate. Their rationale is that: (1) Section 1396d(a) “is a definitional statute describe ing the components of ‘medical assistance.’ ” (2) “By citing to these definitions, the EPSDT benefit incorporates them as and to the extent they have been described by Congress in the statute.” (3) “Therefore, EPSDT entitles Medicaid recipients to what is provided for in section [1396d(a)], but does not dictate the precise content of each ... category of service.” (4) Thus, “[t]he EPSDT benefit described in Section [1396d(r)], while broad, does not undermine the State’s authority and discretion to establish reasonable standards ... for determining eligibility for, and the *592 extent of medical assistance under the plan.” 8
The interpretation proffered by LDHH counsel conflicts sharply with the Congressional intent of the 1989 EPSDT amendment as expressed simply and clearly by its plain words, legislative history, CMS interpretations, and as recognized by the federal Circuits by which it has been considered. According to its words, a principal goal of the 1989 amendment is to correct or ameliorate the defects, illnesses and conditions of EPSDT children discovered by the screening services. The means to be used for this purpose are also clear: health care, diagnostic services, treatment, and other measures described in § 1396d(a). Equally plain is the criterion for the application of these means: the health care requested must be necessary to “correct or ameliorate” an eligible EPSDT child’s defect, illness or condition. 42 U.S.C. § 1396d(r)(5). Furthermore, the legislative history demonstrates Congress intended the health care and treatment available under the EPSDT program to be made more accessible and effective by: removing the Secretary’s express authority to define the means and the standards for its operation; placing the goal, means and standards in the statute itself; and by imposing an obligatory, not discretionary, duty on states to effectuate this aspect of the EPSDT program “whether or not such services are covered under the State plan.” 42 U.S.C. § 1396d(r)(5).
Thus the plain words of the statute and the legislative history make evident that Congress intended that the health care, services, treatment and other measures that must be provided under the EPSDT program be determined by reference to federal law, not state preferences. The 1989 amendment was clearly a response to the disappointing performance of the EPSDT treatment function as optional and within each state’s discretion. We reject the notion of LDHH’s counsel that Congress made the provision of such treatment mandatory on the states only to cede to the states complete discretion to decide upon the contents of the twenty-seven medical assistance categories purportedly made available to EPSDT eligible children.
All of this is confirmed by the interpretations of CMS. CMS regulations interpret and implement § 1396d(a) in highly detailed specific definitions of the supposedly hollow health care categories. See 42 CFR §§ 440.1-440.185 (2003). CMS does not interpret the enumerated health care categories as empty vessels to be filled according to the states’ discretion. Instead, CMS construes the twenty-seven categories to have definite substantive content.
Furthermore, CMS interprets the Act to require that any service a state is permitted to cover under Medicaid that is necessary to treat or ameliorate a defect, physical and mental illness, or condition identified by a screen, must be provided to EPSDT participants regardless of whether the service or item is otherwise included in the state Medicaid plan. SMM § 5110. Thus, LDHH counsel’s argument that, for purposes of the EPSDT program, states are merely required to recognize the twenty-seven medical assistance categories and fill them with as few or as many types of health care and services as the states, within their discretion, see fit is completely inconsistent with CMS’s interpretation of the EPSDT statutory provisions.
*593
As already related, the federal Circuits that have analyzed the 1989 ESPDT amendment agree that Congress did not grant or allow states the discretion to define what types of health care and services would be provided to ESPDT children, and that participating states must provide all services within the scope of § 1396d(a) which are necessary to correct or ameliorate defects, illnesses, and conditions in children discovered by the screening services.
Collins v. Hamilton,
As inspiration for its EPSDT “hollow categories” theory, LDHH draws only upon the anomalous opinion in
Salgado v. Kirschner,
For these reasons, we conclude that a state Medicaid agency must provide, under the EPSDT program, (1) any medical assistance that a state is permitted to cover under § 1396d(a) of the Medicaid Act, that is (2) necessary to correct or ameliorate defects -and physical and mental illnesses and conditions discovered by screening. ., ■
III.
Because LDHH does not challenge the district court’s determination that, for purposes of the EPSDT benefit, the medical' prescription of disposable incontinence underwear is necessary to ameliorate conditions caused by S.D.’s spina bifida and *594 total bowel and bladder incontinence, we next address whether this type of medical assistance is “described in” § 1396d(a). As LDHH acknowledges, this question is “the heart of this case[.]” LDHH Reply Br., p. 8.
The Medicaid Act does not directly address the question of whether medically prescribed incontinence supplies are included within the “home health care services” category of medical assistance, as argued by the plaintiffs and apparently determined by the district court. Therefore, we follow the decision of the Supreme Court in
Chevron, U.S.A. v. Natural Resources Defense Council, Inc.,
“When a court reviews an agency’s construction of the statute which it administers[, and determines] that Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction.”
Id.
at 843,
“The power of an administrative agency to administer a congressionally created ... program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.”
Chevron, supra,
CMS has promulgated a regulation, codified as 42 CFR § 440.70, which provides, in pertinent parts, that “[h]ome health services include ... [m]edical supplies, equipment, and appliances suitable for use in the home ... [when provided to a recipient at] his place of residence.... ” Further, 42 CFR § 441.15, in relevant part, provides: “With respect to the services defined in § 440.70 ... a State plan must provide that — (a) Home health services include, as a minimum.... (3) Medical supplies, equipment, and appliances.” In light of the well settled principles reaffirmed by Chevron, we conclude that the agency’s interpretation of “home health care services” as including “medical supplies,” when used under the circumstances specified in its regulation, is clearly a permissible statutory construction. 10
*595
We have consistently held that a regulation should be construed to give effect to the natural and plain meaning of its words.
Lam v. Cinemark USA, Inc.,
More importantly, CMS has approved state Medicaid plans that expressly provide incontinence, supplies under the home health care category of medical assistance.
12
. This demonstrates that CMS interprets the § 1396d(a)(7) “home health care services” category as appropriately covering incontinence supplies under its construction of the statute.
See
42 CFR § 440.70. As the agency entrusted with
*596
the administration of the Medicaid statute, CMS is required to determine that each state plan is in conformity with the specific requirements of the Medicaid act.
See
§ 1396a(b); 42 CFR 430.10; 430.15;
Cmty. Health Ctr. v. Wilson-Coker,
CMS’s approval of state plans affording coverage for the provision of incontinence supplies as a proper cost of home health care services demonstrates that the agency construes § 1396d(a)(7) as encompassing that type of medical care or service.
13
See Pharm. Research and Mfrs. of Am. v. Thompson,
Contrary to LDHH’s contention CMS approval of Louisiana’s effective exclusion of incontinence supplies from the home health care services covered for the general Medicaid population, further corroborates our conclusion that under CMS’s *597 interpretation of the Act, the prescription of incontinence supplies is a form of medical assistance that is “described in” the home health care services medical assistance category. § 1396d(a)(7). The natural and ordinary meaning of “exclusion” in this context is to expel or bar from a place or position previously occupied. 14 Thus, the submission and approval of the special provisions that effectuate that exclusion strongly indicates that both Louisiana and CMS construed the category of “home health care services” to include incontinence supplies in the absence of the exclusion. The provision effectuating the exclusion was necessary to expel or bar incontinence supplies from the place or position they otherwise occupy as part of the medical supplies covered under the home health care services medical assistance category. Otherwise, the provision would have been unnecessary and illogical.
Further, the § 1396d(a)(7) category of home health care services is an optional, not a mandatory, category of medical assistance. § 1396a(a)(10)(A). Thus, the state was not required to provide this category of care and services to individuals over the age of twenty-one at all. Consequently, the fact that CMS approved a state plan, adopting the optional category of home health care services, subject to an effective incontinence supplies exclusion, does not indicate that the agency construed § 1396d(a)(7) itself to exclude incontinence supplies. Instead, it suggests that both Louisiana and CMS knew that, if the state adopted that category and did not adopt a provision effectively excluding incontinence supplies, it would be forced to afford incontinence supply service to eligible individuals over twenty-one years old; that the state wished to avoid the cost of this service for the older class of recipients; and that the CMS approved the provision effectively excluding the service because the state was not obligated by the statute to undertake any aspect of the optional category of coverage in the first place. At most, CMS’s approval of the effective exclusion indicates only that the exclusion may be an appropriate limitation on the scope of the home health care benefit as it applies to recipients over twenty-one years of age. It does not express or imply that CMS has approved an exclusion applicable to EPSDT benefits.
In sum, the prescription of disposable incontinence underwear that is necessary to ameliorate S.D.’s birth defect and condition of incontinence is a form of medical assistance that is described in § 1396d(a) under the category of “home health care services.” § 1396d(a)(7). For all of the foregoing reasons, we conclude that LDHH violated the Medicaid Act by denying S.D. a service described in § 1396d(a) that is necessary for ameliorative purposes under the EPSDT program. See § 1396d(r)(5).
IV.
LDHH’s appellate counsel appear to argue, without complete clarity or consistency, that the EPSDT mandate does not require LDHH to pay for the prescription of disposable incontinence underwear for S.D. in this case because (1) CMS approved an exclusion of those supplies from EPSDT coverage as part of the Louisiana state plan, or (2) LDHH has implied authority to establish exclusions from EPSDT coverage without CMS approval, and LDHH used that authority to exclude medical assistance for disposable incontinence underwear in this case. These arguments are without merit.
*598 A.
Before addressing the arguments, in order to avoid confusion, we need to identify and dispel a number of false issues, inap-posite authorities, and misapplication of statutory elements that LDHH’s appellate counsel use sophistically in support of their litigating position: (1) LDHH counsel repeatedly confuse and blur the important distinction between (a) the Medicaid Act’s mandatory statutory edict and criterion for the correction or amelioration of defects, illnesses and conditions of EPSDT children and (b) the State plans’ bilaterally contracted (state proposed and CMS approved) definitions and standards for the medical assistance provided to the general Medicaid population. 15 (2) This case does not present an attack upon a state plan’s federally approved limitation on the basic coverage provided to the general Medicaid population, as in cases relied upon by LDHH. 16 (3) The validity of the Louisiana state plan’s exclusion of incontinence supplies from “home health care services” for the general Medicaid population is not disputed in this case — it is LDHH’s attempt to apply that exclusion to coverage under the EPSDT program that is controversial here. 17 (4) Furthermore, because this case does not call upon us to review CMS’s approval of the Louisiana state plan, LDHH’s citations and discussion pertaining to judicial review of such federal agency action are irrelevant and misleading. 18
LDHH’s reliance on other irrelevancies is similarly misguided. An email from a CMS employee, who did not profess to speak authoritatively for CMS, does not constitute a thoroughly considered statutory construction by CMS that is owed any judicial deference or that is relevant to this case. 19 The Medicare manual relied *599 upon by LDHH is inapposite because the home health benefits provided under the two programs are not comparable and Medicare, unlike Medicaid, does not provide for the EPSDT program. 20 The Children’s Choice waiver program that provides, among other things, diapers to some Medicaid eligible minors does not prove that incontinence supplies are excluded from coverage under the EPSDT program. 21 CMS approves waiver programs that provide items and services that are also provided by the EPSDT program if the nature and amount of services provided under the waiver exceed that which is otherwise covered under the state plan. See SMM § 4442.3A.3. LDHH’s arguments based on these immaterial matters merely obscure and deflect attention from the relevant issues discussed in previous parts of this opinion.
B.
Contrary to LDHH counsel’s insinuations, the Louisiana state plan does not contain any provision that expressly or implicitly excludes the prescription of disposable incontinence underwear from the coverage provided under the EPSDT program. LDHH’s creative arguments to that effect are both confusing and misleading. In short, LDHH contends that, under definitions contained in its state plan and approved by CMS, incontinence underwear is not a “medical supply” and, therefore, is not available under the “home health care services” medical assistance category. 22 Accordingly, although LDHH admits that it is required to provide “home health care services” including “medical supplies” to EPSDT recipients, LDHH argues that (1) the Louisiana state plan defines the “medical supplies” available under the “home health care services” medical assistance category as excluding incontinence underwear, (2) CMS has approved Louisiana’s definition, and (3) because of CMS’s “imprimatur” LDHH’s definition of “medical supplies” is entitled to deference. This argument rests on a fallacy, however, because the state plan does not contain any definition, applicable to the EPSDT program, that would exclude incontinence underwear from the medical supplies available to persons under twenty-one when such supplies are necessary to correct or ameliorate conditions or defects discovered by screening.
The incontinence supplies exclusion relied upon by LDHH appears in Section 4.19-B of the state plan, a section entitled “Payment for Services.” See LDHH First Br. p. 24-27. (citing R.135, which refers to Louisiana State Medicaid Plan § 4.19-B, item 7.) In item 7 of section 4.19-B the plan states that all medical supplies provided under the optional home health care services medical assistance category will *600 be reimbursed through the “durable medical equipment” program. The plan further states that “diapers and blue pads” are hot reimbursable through that program. 23 The section does not purport to define the term “medical supply” or the medical assistance category of “home health care services.” Instead, the state plan- merely excludes “diapers and blue pads” from a certain payment program. Although the parties agree that this section, in effect, excludes incontinence underwear from the medical supplies available to the general Medicaid population, it is irrelevant to S.D.’s claim because it does not apply to, refer to, or mention the EPSDT program. Payments provided under the EPSDT program are described in an altogether different section of the state plan which does not contain any exclusion of coverage for incontinence supplies. Id., item 4.b.
After a careful examination of the Louisiana Medicaid State Plan, 24 including particularly Section 3.1, “Amount, Duration, and Scope of Services”, and Section 4.19, “Payment for Services”, we cpnclude that the plan does not define the term “medical supply” so as to exclude incontinence underwear nor otherwise implicitly or explicitly excludes that service from coverage under the EPSDT program. In addition, we note that LDHH conveniently fails to cite to the section of the-state plan-that defines the scope of services available under Louisiana’s EPSDT program. In that section, the plan provides that the EPSDT benefit includes “all other health care described in- section [1396d(a)] ... that is found to be medically necessary to correct or ameliorate defects as well as physical and mental illnesses and conditions discovered by the screening service even when such health care is not otherwise covered by the State Plan .... ” Id., § 3.1-A, item 4.b (emphasis added.) Thus, the exclusion of “diapers and blue pads” that appears in the optional home health care section of the state plan is specifically not applicable to the EPSDT program. Therefore, there is no factual or legal basis for LDHH’s argument that its denial of S.D.’s claim is supported by any definition or exclusion in the approved state plan.
In this connection, LDHH also argues that, because of CMS’s “imprimatur” of such a definition or exclusion, its determination that the state plan bars coverage in this instance should have been reviewed by the district court under the deferential standards that courts apply to federal agency actions. The main flaw in this argument, among others, is, of course, that because there is no such definition or exclusion in the state plan, CMS approval of the state plan cannot amount to an imprimatur of such a provision.
C.
LDHH’s appellate counsel further suggest that LDHH’s denial of S.D.’s claim should be accorded deference and upheld because (1) the Medicaid Act grants LDHH the implied authority or discretion, without CMS review and approval, to make reasonable exclusions from EPSDT *601 coverage, either by directly excluding certain types of health care or measures or indirectly by regulating the amount, duration and scope of the health care provided by the EPSDT program; and that (2) LDHH acted pursuant to this authority when it denied S.D.’s claim for medical assistance. Assuming, for the sake or argument only, that the Medicaid Act delegates such implied authority to LDHH, the short answer to this attempted justification is that LDHH did not base its action on such implied authority. Rather, it is clear that LDHH denied S.D.’s claim on three limited grounds: (1) the disposable incontinence underwear prescribed by his physician was available through another agency, (2) was not medically necessary, and (3) was outside the scope of Medicaid. 25 LDHH offered no other reason for its denial of S.D.’s claim. Specifically, LDHH did not indicate that S.D.’s claim was within EPSDT coverage but excluded therefrom by LDHH’s own rule or policy based on its implied authority or discretion. Nor is there any material in the record from which we may reasonably discern that this was the basis and reason for the agency’s decision.
“It is elementary that if an agency’s decision is to be sustained in the courts on any rationale under which the agency’s factual or legal determinations are entitled to deference, it must be upheld on the rationale set forth by the agency itself.”
Fort Stewart Schools v. FLRA,
Therefore, we do not reach the hypothetical question which LDHH appellate counsels post hoc rationalizations seek to raise, viz., whether LDHH has implied authority or discretion to establish exclusions from EPSDT coverage without CMS approval. 26 We note, however, that, in any *602 event, the cases cited by LDHH counsel are inapposite to this question. 27
V.
Having concluded that the Medicaid Act’s ESPDT mandate requires LDHH to provide S.D. with medical assistance for the prescribed disposable incontinence underwear because it is necessary to ameliorate S.D.’s conditions caused by his total bowel and bladder incontinence and spina bifida, we now confront LDHH’s assertion that S.D. cannot enforce that requirement under 42 U.S.C. § 1983.
Section 1983 provides a cause of action against state officials for “the deprivation of any rights, privileges, or immunities secured by the Constitution and laws” but does not provide a mechanism through which citizens can enforce federal law generally. Instead, it provides redress only for a plaintiff who asserts a “violation of a federal
right,
not merely a violation of federal
law.” Blessing v. Freestone,
In
Blessing v. Freestone,
In
Gonzaga University v. Doe,
The Medicaid Act provides that “[a] State Plan must provide for making medical assistance available, including at least the care and services listed in paragraphs (1) through (5), (17) and (21) of section 1396d(a) of this title, to all individuals” who meet certain eligibility criteria. 42 U.S.C. § 1396a(a)(10)(A)(i). EPSDT care and services are listed in paragraph 4 of § 1396d(a) and, by reference to § 1396d(r), include all the health care, treatment, services, and other measures described in § 1396d(a) when necessary for corrective or ameliorative purposes. This is precisely the sort of “rights-creating” language identified in
Gonzaga
as critical to demonstrating a congressional intent to establish a new right. Accordingly, as the Third Circuit concluded, “it [is] difficult, if not impossible, as a linguistic matter, to distinguish the import of the relevant [Medicaid Act] language — ‘A State Plan must provide’ from the ‘No person shall’ language of Titles VI and IX” which was held up in
Gonzaga
as the prototypical rights-creating language.
Sabree v. Richman,
The only potentially material difference between the rights-creating language contained in § 1396a(a)(10)(A) and that contained in Titles VI and IX is that the Medicaid Act requires state action under a medical assistance plan. The requirement of action under a plan is not, however, dispositive of the question of whether the statute confers rights enforceable by § 1983. “In an action brought to enforce a provision of [the Social Security chapter of the United States Code], such provision is not to be deemed unenforceable because of its inclusion in a section of this chapter requiring a State plan or specifying the required contents of a State plan” 42 U.S.C. § 1320a-2;
see also Harris v. James,
Moreover, the Medicaid Act confers the right to the health care, treatment, services and other measures described in § 1396d(a) when necessary for EPSDT ameliorative purposes upon an identified class. The statute requires that participating states provide such care and services
“to all individuals”
who meet the plan eligibility requirements and are under the age of twenty-one.
See
42 U.S.C. §§ 1396a(10)(A), 1396d(a)(4)(B). Thus,
*604
rather than having merely an aggregate focus, the EPSDT provisions are “concerned with whether the needs of [particular individuals] have been satisfied.”
Gonzaga, supra,
Our conclusion is amply supported by the decisions of this court and other federal Circuits. Before the Supreme Court’s decision in
Gonzaga,
numerous courts, including this court, had concluded that the Medicaid Act confers, upon eligible children, a federal right to the health care, treatment and measures mandated by the EPSDT program.
See e.g. Mitchell v. Johnston,
Finally, several
post-Gonzaga
circuit court decisions have held that provisions of the Medicaid Act containing language similar to § 1396a(a)(10)(A), i.e. “[a] State Plan must provide for making medical assistance available, including [EPSDT benefits] to all individuals”, are enforceable by § 1983. Specifically, the Second Circuit in
Rabin v. Wilson-Coker,
Turning to the second
Blessing
factor, we conclude that the right asserted by S.D. is not so “vague and amorphous” that its enforcement would “strain judicial competence.”
Blessing v. Freestone, supra,
Finally, S.D. easily satisfies the third
Blessing
factor because the Medicaid statute unambiguously imposes EPSDT obligations on the participating states.
See
42 U.S.C. § 1396a(a)(10)(A) (stating that “[a] State plan for medical assistance
must
provide for making medical assistance available, including [EPSDT benefits]” (emphasis added));
see also Miller by
*606
Miller v. Whitburn,
LDHH does not dispute that S.D.’s right to receive services under the EPSDT program is enforceable in an action brought under § 1983. Rather, LDHH claims that the right specifically claimed by S.D., namely, the right to medically necessary incontinence supplies, is ' not enforceable because Congress did not specifically list this service in the statute. LDHH claims that even if, as we have concluded, medically necessary incontinence supplies must be provided to EPSDT eligible children as a “home health care service”, this requirement is based upon CMS’s construction of the statute rather than on the statutory text itself. According to LDHH, because the specific right at issue is provided by the agency’s interpretations rather than,by Congress, under the Supreme Court’s decision in
Alexander v. Sandoval,
In
Sandoval,
the Supreme Court held that no private right of action exists to enforce a regulation banning disparate impact discrimination that was enacted under Title VI of the Civil Rights Act of 1964 (“Title VI”). Title VI § 601, a rights-creating provision, states that “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity” covered. 42 U.S.C. § 2000d. The Supreme Court noted that .it was “beyond dispute” that individuáis could sue to enforce § 601’s prohibition on discrimination.
Sandoval, supra,
Section 602 of Title VI states that “each Federal department and agency which is empowered to extend Federal financial assistance to any program or activity ... is authorized and directed to effectuate the provisions of section 2000d of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability....” 42 U.S.C. § 2000d-l. The Department of Justice, pursuant to § 602, had issued regulations that prohibited disparate impact discrimination.
34
The Supreme Court examined the text of § 602, searching for evidence of congressional intent to create the private right of action asserted by the plaintiffs. It recognized the absence of any rights-creating language, such as found in § 601, and concluded that there was “no evidence anywhere in the text to suggest that Congress intended to create a private right to
*607
enforce regulations promulgated under § 602.”
Id.
at 291,
Both the government and the plaintiffs argued that the regulations barring disparate impact discrimination, enacted under § 602, were privately enforceable because the
regulations themselves
contained rights-creating language. The Supreme Court rejected this argument stating “[ljanguage in a regulation may invoke a private right of action that Congress through statutory text has created, but it may not create a right that Congress has not.”
Id.
at 291,
Important for our purposes, however, the Supreme Court also stated that it did “not doubt that regulations applying § 601’s ban on intentional discrimination are covered by the cause of action to enforce that action. Such regulations, if valid and reasonable, authoritatively construe the statute itself.”
Id.
at 284,
In the present case, the rights-creating language relied upon by the plaintiff is contained in the statute itself. Furthermore, the regulations implementing the statute, and defining “home health care services” to include “medical supplies”, are authoritative interpretations of the statute and are enforceable by § 1983. Finally, as discussed in section III, medically necessary incontinence supplies fall within the natural and plain meaning of the term “medical supplies” and CMS has interpreted the “home health care services” eatego-ry as specifically including such supplies. Accordingly, the federal statutory right asserted by the plaintiff is enforceable under § 1983.
For these reasons, the judgment of the district court is
AFFIRMED.
Notes
. On appeal, LDHH concedes that this reason for denial appears to have been in error. LDHH First Br. p. 2.
. Prior to July, 2001, CMS was known as the Health Care and Financing Administration ("HCFA”). See Department of Health and Human Services Reorganization Order, 66 Fed.Reg. 35437 (July 5, 2001). For consistency, this opinion will refer to the agency as CMS, even when referring to the period when it was still designated as HCFA.
. In a section of the state plan describing reimbursement rates and methods for the home health care services provided under the plan, the plan states that all covered medical supplies will be reimbursed through the durable medical equipment program. The state plan further provides that "[d]iapers and blue pads are not reimbursable as durable medical equipment items.”
. The exclusion, described in the preceding footnote, does not mention the EPSDT program. Payments provided" under the EPSDT program, and the scope of services provided under that program, are described in other sections of the state Medicaid plan. Those sections do not contain an exclusion for incontinence supplies.
. LDHH’s First Br. P.11-12. LDHH further mischaracterizes the district court’s decision as holding "that a State must provide children with any and all services for which it could receive FFP [, i.e., federal financial participation].” LDHH First Brief p. 12. LDHH then proceeds to list a variety of Medicaid services, not described in 42 U.S.C. § 1396d(a), for which FFP is available. The district court decision does not address non- § 1396d(a) FFP, however, but quite correctly decides the issue raised by this case, viz., whether the prescription of disposable incontinence underwear necessary for EPSDT corrective or ameliorative purposes is “described in” 42 U.S.C. § 1396d(a). See Order and Reasons of district court at 9, 16 (E.D. La # 02-CV-2164) (December 5, 2002). The subject of "FFP” for services outside the scope of § 1396d(a) is simply irrelevant and LDHH's argument regarding it is nothing more than a distraction.
. SMM, Foreword. Although not entitled to
Chevron
deference, relatively informal CMS interpretations of the Medicaid Act, such as the State Medicaid Manual, are entitled to respectful consideration in light of the agency's significant expertise, the technical complexity of the Medicaid program, and the exceptionally broad authority conferred upon the Secretary under the Act.
Wis. Dep’t of Health & Family Sens. v. Blumer,
534 U.S.
*591
473, 497,
. SMM § 5122, in pertinent part, provides: “42 CFR 440.230 allows you to establish the amount, duration and scope of services provided under the EPSDT benefit. Any limita-tiqns imposed must be reasonable and services must be sufficient to meet their purpose (within the context of serving the needs of individuals under twenty-one). You may define the service as long as the definition comports with the requirements of the statute in that all services included in [§ 1396d(a)] that are medically necessary to ameliorate or correct defects and physical or mental illnesses and conditions discovered by the screening services are provided.”
. LDHH first brief p.21. Most of LDHH's brief ostensibly directed to statutory construction actually presents its appellate counsel’s post hoc rationalizations of a discretionary basis for the agency’s action. For the reasons stated in part IV. of this opinion, we conclude that those reasons cannot provide justification for LDHH's denial of S.D.’s statutory right.
. Available at http://www.cms. hhs.gov/states/letters/smdO 1051 .asp.
. LDHH initially argues that "disposable incontinence supplies” may not be paid for as part of medical assistance defined by § 1396d(a) because they are not listed verbatim in that section; and that the only "supplies” listed in the section are in § 1396d(a)(12): prescribed drugs, dentures, prosthetic devices, and eye glasses. LDHH First Brief 13. Two pages later, however, LDHH acknowledges that the CMS regulation implementing the Act provides that "home health care services” includes “medical sup *595 plies ... suitable for use in the home," although they are not listed in the statute. Id. at 15.
. "Home health care services” is not strictly limited to items or services that are used exclusively within the interior of the recipient's home. The applicable regulation notes only that home health care services cannot be provided at "a hospital, nursing facility, or intermediate care facility for the mentally retarded.” 42 C.F.R. § 440.70(c). No other restrictions are placed on the location at which they are provided or used. In addition, at least one other circuit has noted that limiting the provision of home health services to services provided inside the home "ignores the consensus among health care professionals that community access is not only possible but desirable for disabled individuals.”
Skubel v. Fuoroli,
. Because the term "medical supplies” reasonably includes medically prescribed incontinence supplies, state plans need not enumerate such items in order to provide them under the home health care category of medical assistance. Six states, however, expressly mention the items in their approved state plans either to note restrictions placed upon the benefit or as part of an enumerated list of items available under a specific payment program. Specifically, Montana's plan notes that it provides diapers, limiting recipients to the nearest package size over 180 diapers per month; Idaho provides incontinence supplies, noting that "[i]ncontinent supplies will only be purchased for persons over the age of four years of age. Disposable diapers are restricted in number to 240 per month. Disposable underpads are restricted to 150 per month[;] any request for incontinent supplies above these amounts must have prior approval by the Department.” Michigan provides diapers and selected incontinence supplies under its home-health-care services program as long as the supplies are obtained from the state's contractor; Virginia provides incontinence supplies, noting only that "[p]reauthorization is required for incontinence supplies provided in -quantities greater than two cases per month." Arkansas provides a more detailed explanation, noting that "[djiapers/underpads are limited to $130.00 per month, per recipient. The $130.00 benefit limit is a combined benefit limit for diapers/underpads provided through the Prosthetics Program and Home Health Program. The benefit limit may be extended with proper documentation. Only patients with a medical diagnosis other than infancy which results in incontinence of the bladder and/or bowel may receive diapers. This coverage does not apply to infants who would otherwise be in diapers regardless of their medical condition. Providers cannot ■bill for underpads/diapers if a recipient is under the age of three years.” Missouri's plan states that EPSDT eligible recipients are eligible for certain durable medical, equipment, including diapers. Maryland includes "incontinency pants and disposable under-pads” as part of its durable medical equipment program. Wisconsin notes that it provides “disposable diapers” as a disposable medical supply.
. LDHH contends that determining what is “described in” a medical assistance category by reviewing the services that CMS has approved as falling within that category permits other states to dictate the scope of services that must be provided under Louisiana’s EPSDT program. LDHH Reply Br. 10. This argument lacks merit. Each state plan must be approved by CMS and CMS reviews state plans to ensure conformity with the Medicaid Act. CMS’s approval of a state plan is therefore an implicit interpretation of the Act. Thus, the Act itself, as interpreted by CMS (subject to judicial review), dictates the scope of services that must be provided under the EPSDT program, not mere proposals of plans or plan amendments by the states.
See Pharm. Research and Mfrs. of America v. Thompson,
. See Merriam Webster’s Collegiate Dictionary (10th Ed.1998) p. 404.
. LDHH First Br. pp. 19, 20 (confusing Medicaid Act’s direct definition of EPSDT benefit for EPSDT children with Act's requirement that participating states propose state plans with standards for determining the extent of medical assistance under the plan for the general Medicaid population); 22-24 (confusing the disputed question of whether states must provide care or services "medically necessary" for general recipients under its state plan with the undisputed, more focused EPSTD statutory requirement that states must provide medical assistance "necessary ... to correct or ameliorate" defects, illnesses and conditions discovered by screening); 24-25 (misinterpreting CMS's approval of Louisiana State plan’s exclusion of incontinence supplies for general Medicaid population as approving an exclusion of such medical assistance for EPSDT children); 27 (same as confusion noted on pp. 19, 24-25 of that brief).
. LDHH First Br. P. 22-24, relying on
De-Sario v. Thomas,
. LDHH First Br. P. 19.
. LDHH First Br. pp. 25-26 (citing cases involving judicial review of federal agency action:’
Pinnacle Nursing Home v. Axelrod,
. LDHH First Br. P. 17;
Skidmore
deference is entirely inappropriate for the opinion of a single employee who has no authority to speak on behalf of the agency.
See Skidmore v. Swift & Co.,
.LDHH First Br. p. 18. LDHH cites a Home Health Services Manual issued by CMS and available at http://cms.hhs.gov/manu-als/ll_hha/hh205-2.asp#_l_3>. The manual contains a definition of the medical supplies available under the Medicare home health benefit that restricts such supplies to those that are essential to visits by home health aides. In accordance with that definition, diapers are covered only when utilized by a home health aide in the normal course of a bathing visit. There is no similar definition or restriction in the Medicaid Act. Furthermore, under Medicaid, unlike Medicare, "home health care services” are not limited to services provided in the home by a home health aide. See footnote 11. Thus, the Medicare provision is completely irrelevant to the matter at hand.
. LDHH First Br. p. 24.
. LDHH First Br. 18, 19, 23, 24.
. The provision counsel relies upon states: “For medically necessary Medical Supplies, Equipment and Appliances, reimbursement will be made through the Durable Medical Equipment Program which requires prior authorization for the item .... (a) Diapers and blue pads are not reimbursable as durable medical equipment items.’’ Louisiana State Medicaid Plan § 4.19-B, item 7.
. See http://www.cms.hhs.gov/medicaid/sta-teplans/toc.asp?state=LA; Official plan maintained by the CMS Regional Office; Copy also maintained by LDHH-BHSF-Policy Section, 1201 Capitol Access Rd, FI 6, Baton Rouge, La. 70802.
. In this appeal, however, LDHH counsel conceded error as to reason(l). LDHH First Br. 2. Reason (2) is not at issue because LDHH does not contest the district court's determination that the prescription of the incontinence supplies are necessary to the amelioration of S.D.’s conditions for purposes of the ESPDT program.
. LDHH counsel continually base arguments on their assumption and assertion that the Medicaid Act grants states complete or autonomous discretion to adopt or change their state plans and the coverage provided thereunder without the need for CMS approval. LDHH First Br. 4, 20, 21. According to LDHH, the Medicaid Act confers "broad discretion” upon, the states. The statements by courts to that effect, however, appear to stem from language in cases such as
Beal v. Doe,
.
See
LDHH First Brief pp. 20, 22-24 (citing
Alexander v. Choate,
. Tide VI provides: "No person in the United States shall ... be subjected to discrimination under any program or activity receiving Federal financial assistance” on the basis of race, color, or national origin. 42 U.S.C. § 2000d (emphasis added). Title IX provides: "No person in the United States shall, on the basis of sex, ... be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a) (emphasis added).
. Accordingly, this case is distinguishable from
Frazar v. Gilbert,
. The Seventh Circuit affirmed the
Collins
decision at
. The First and Seventh Circuits have concluded that certain provisions of the Medicaid Act are not enforceable by § 1983 after
Gon-zaga.
Those cases are readily distinguishable, however, in that they concern Medicaid provisions that are insufficiently definite or that only indirectly benefit a particular plaintiff.
See Long Term Care Pharm. Alliance v. Ferguson,
. 42 U.S.C. § 1396a(a)(13)(A).
. Satisfaction of the
Blessing
factors establishes that a right is presumptively enforceable by § 1983.
See Blessing, supra,
. For the purpose of its decision, the Supreme Court assumed, without deciding, that the regulation was valid.