*1 III. Conclusion Spry; Gary Elizabeth A. Spry; Demon Harvey; McCarthy; Michael Mary sum, In we affirm the district court’s Gaye Reyes, Plaintiffs-Appellants, orders denying reconsideration and dis- missing the charges against the Smiskins.
The Government rely cannot on the State Tommy Thompson, Secretary of Health of Washington’s pre-notification require- Services; & Human Scully, Thomas A. ment as the basis for pursuing CCTA Administrator; Jean Thorne, Gary prosecution against tribal members the Weeks, Director, Oregon Department Yakama Nation. The requirement State’s Services, Human Defendants-Ap is not purely regulatory in nature and pellees. applying it to tribal members would re- strict a uniquely important 04-35746, Nos. right to travel 04-35750. that the Yakama nation understood both at United States Court of Appeals, the time of treaty and now as critical Ninth Circuit. preservation culture, of their econo- my, and way of Therefore, life. the Smis- Argued and Submitted Nov. alleged kins’ transportation and possession May 21, Filed of unstamped cigarettes without providing notice to the State cannot be basis
prosecution under the CCTA.
AFFIRMED. SPRY;
Elizabeth A. Gary Spry; Demon
Harvey; Michael McCarthy; Mary
Gaye Reyes, Plaintiffs-Appellees,
Tommy THOMPSON,
Health & Services; Human Mark B.
McClellan, Administrator, Centers for
Medicare and Medicaid Services, De-
fendants-Appellants,
Gary Weeks, Director, Oregon
Department of Human
Services, Defendant. *2 (briefed), Foun- AARP Bobroff
Rochelle DC, Washington, for Litigation, dation AARP. curiae amicus KLEINFELD J. ANDREW Before: GRABER, Judges, Circuit P. SUSAN and MOSKOWITZ,* District T. BARRY and Judge. KLEINFELD; Judge
Opinion MOSKOWITZ. by Judge Concurrence KLEINFELD, Judge. Circuit re- Medicaid federal with what We deal provid- program to a state apply strictions are who persons ing medical Medicaid. participate have to States do do, they if but program, Medicaid federal conform generally must plans In return regulations. Medicaid conformity with participation their participating requirements, reimbursement get partial Jus- Klein, Department B. Alisa also States government. the federal from DC, appellants-eross- tice, Washington, plans. types new with may experiment & Human of Health appellees con- generally do, must plans they If Administrator, Centers Services regulations Medicaid- Medicaid form Services. and Medicaid Medicare Secretary of Health but eligible people, Attorney Fletcher, Assistant E. Charles re- some may waive Services Human Di- OR, cross-appellee Salem, General, expand chooses If a state quirements. Ser- Human rector, Department not eli- are who needy people coverage to vices. Secretary exer- gible Law Pro- Perkins, plan, Health National approve Jane his discretion cises H. NC, Lorey Hill, who Chapel needy people gram, then Center, nevertheless (briefed), Law Freeman calculat- were, purposes they though OR, Portland, appellees-cross-appel- to the state.1 ing reimbursements lants. * typically use field Moskowitz, specialize in the United Barry T. The Honorable terms, writing search or as acronyms in their District Southern Judge for the District DSH, OHP2, OHP, California, designation. sitting by a case about this is SCHIP). (but not HIFA plain En- opinion in written 1. We have under- and others' own our glish, to facilitate For discussed. standing of the matters This case a question involves not previ- co-payments for care, medical prescrip-
ously decided. tions, Suppose the state expands hospitalization are between its coverage $250, in an experimental compared $5.00 and plan, called to Medicaid lim- *3 to “demonstration project,” $0.50 $3.00. to needy people who are not eligible Medicaid, and the Oregon predecessor created the to this Secretary waives any objection to the dif- 1992, in covering people both that had provisions ferent those to covered for the get state to Medicaid Medicaid, but does not reimbursements, waive or otherwise and people not as badly speak to the terms of off as those coverage had to needy be covered. The people who are cost the government not eligible. too These indi- much money, even partial viduals are after the now regarded as reim- eligible for bursements, so it developed limited purposes of federal reimburse- new somewhat ample less ment to hospitals. But is the state bound project, which is the subject of litiga- by Medicaid premium co-payment re- tion. This lawsuit tests the permissibility quirements (in the absence of a Secretary’s reductions benefits for those not waiver) even though these individuals re- eligible for Medicaid compared to pre- main statutorily ineligible for Medicaid un- vious plan. der federal law? Our conclusion is that it The federal legislation grants providing not.
to states for medical assistance programs separates people (1) Facts. into classes: the “cat- egorically needy,”3 generally The five plaintiffs in this case welfare; aged, blind, or disabled indi- eligible for Medicaid, although their in- viduals who are qualified for social security come is low. They would have to be blind disability benefits; and low-income preg- disabled, or would have to have children nant women children, (2) (they not), do to be eligible.2 Oregon has “medically needy,”4 individuals who are developed a health plan to cover them above the poverty line but would not be if despite their ineligibility. They have to they were not assisted with medical ex- pay higher premiums and higher co-pay- penses. In order to receive federal Medi- ments on visits, doctor medications, etc. funds, care the state must for the than they if eligible would under Medicaid. categorically needy population and may Medicaid is not totally free to recipients; provide for the medically needy popula- they are required to pay nominal amounts tion.5 as co-payments for government their may also “experimental, create vided insurance coverage, medications, pilot, or demonstration” projects to serve doctor and hospital visits, etc. Under the “expansion populations” —individuals Oregon plan, the premiums for these badly off as the categorically needy but Medicaid-ineligible people range needy and the medically needy.6 If they from to per month, $5.00 $20 depending on do, the Secretary of Health and Human income, compared to Medicaid limits of may Services compliance waive with some to per $1.00 $6.00 Likewise, month. their of the federal Medicaid requirements7 for 2. See 42 1396a(a)(10). § U.S.C. 5. See 42 § U.S.C. 1396a. 3. See Pharm. Research & Am. v. 42 U.S.C. Mfrs. of Walsh, 651 & n. example, 7. For may waive in- surance limits. 42 id. 123 S.Ct. 1855 & n. 5. U.S.C. 1396o. waiver, then the absence ulation and entitle monthly medical fails, their because into for them expenses put states (depend- premiums $6 $20 insurance reimbursements.8 for federal the formula income) co-payments $2 ing may people cover project A demonstration too high. would for Medicaid $250 not be
who would Secretary. waiver from without certification sought class “expansion people call these agencies relief and other injunctive because ulations” from re- prevent U.S.C. to in- coverage expanded has co- premiums pay them quiring for feder- counted they are clude them *4 summary judg- sought They payments. the of only because al reimbursements federal and The ment. “expansion These waiver. Secretary’s the theo- summary judgment moved the addition to in are covered populations” for the necessary waiver was that no ry medically the needy and categorically argued The state population. expansion needy. the that ground on the for dismissal well de- private a for waiver not create does Oregon application statute The “not lawsuit as in this people the of action. right scribed (including for Medicaid eligible otherwise certifica- denied class court The district incomes with couples) singles and parents, in summary judgment tion, granted but poverty FPL [federal percent up to 185 co-payments, on the plaintiffs of favor they are is that is critical line].” What victory of them. collection enjoined Medicaid, as a “mandato- either eligible absence on the was based plaintiffs (the needy”) “categorically population ry” summary judg- court granted The waiver. (the “medi- “optional” as an or premi- the defendants on in of favor ment childless, non- They are needy”). cally subsequent preclude ums, and did expands Oregon’s adults. disabled the reason eliminate waiver, which would eligi- beyond those public medical if the co-payments, injunction on the though even ble procedure the through Secretary went no bene- chose, them with could, leave it if waivers. granting its under fits whatsoever final judgment. appeal Both sides gram. approved The Analysis. gave the Action. of Cause Private I. “optional,” waiver requested rely argued, The State For needy” population. “medically prog Freestone9 Blessing v. ing on (those peo- though population,” “expansion any have did not eny, that Medicaid), the Secre- ple not 42 U.S.C. enforceable right was no waiver that position tary took argua was question Although § 1983. a nor denied gave neither needed filed, set it was were briefs when If ble population. expansion waiver priori with by panel a argument after tled with Medicaid compliance requires the law holds v. Weeks11 Watson ours.10 ty over people standards 4.1(a). Order General Circuit 10.Ninth 1315(a). 42 U.S.C. 8. Cir.), (9th de cert. 1155 137 L.Ed.2d S.Ct. -, - nied, S.Ct. (1997). L.Ed.2d 1396a(a)(10) a and medically needy populations, that 42 U.S.C. “creates not to private right of action enforceable under expansion populations. Under subsection section 1983.” We do not see a sound (a), provide a “State shall that in the Watson, distinguishing basis for and con- case of in subpara- individuals described clude that if is a there violation this ease (A) (E)(i) graph or section standards, statutory plain- then the 1396a(a)(10)(A)of this title who are private right tiffs this case have plan,” only under the nominal sharing cost action enforceable under section 1983. may imposed. Under 42 U.S.C. 1396o(b), shall “State Necessary? Is Waiver in the case of individuals other than those question whether Secre (A) (E) in subparagraph described tary’s necessary allowing waiver is Ore 1396a(a)(10) section of this title who are gon the premiums eo-pay- to collect plan,” under the income-related law, by summary ments is one of decided may and nominal sharing cost judgment, so we de novo.12 review imposed. The “individuals described speaks unambiguously, statute so we do *5 (A) (E)(i) subparagraph or of section (the not reach Chevron13deference Secre 1396a(a)(10)” mandatory populations. are tary position has taken the that waivers (a) That permits means subsection a state necessary are coverage expan not for of impose premiums nominal and cost Medicaid). populations eligible sion not sharing mandatory on populations. Sub- The waiver statute14 enables the Secre- (b) permits section a state to impose tary compliance” to “waive with certain premiums income-related and nominal cost provisions Medicaid for demonstration on sharing non-mandatory populations who jects, and it provides that that costs would i.e., eligible, optional, Medicaid medi- otherwise not be included reim- cally needy populations. bursement formula “shall ... regarded be (f) of expenditures provision16 as under the Subsection this plan” State and limits costs that permis- would otherwise not be waivers of the and sible permissible.15 shall be as provisions projects. demonstration key The appeal section is 42 U.S.C. But this limitation on only applies waivers 1396o, § regarding premiums waivers for mandatory populations to the “described” (termed co-payments sharing” “cost 1396o(a) under optional section or the statute). by the 1396o(b)—not by ulations addressed ex- pansion populations. People in expan- imposition
The restrictions on premi- sion by made worse off ums co-payments under 1396o are (a) (b). inclusion demonstration delineated subsections less Al- though premiums favorable them than to the co-payments categorically distinguished and medically needy because, and treated somewhat differ- without the 1396o(a) ently (b), under both project, they subsec- would not be tions apply only categorically to the needy eligible for Medicaid at all.
12. Vasguez County Angeles, v. 14. 42 U.S.C. 1315. Los (9th Cir.2003); Brower v. Ev- (9th Cir.2001). ans, 257 F.3d Id. 13. Chevron U.S.A. Inc. v. Natural Res. Def. 1396o(f) 16. 42 U.S.C. 837, 842-43, Council, Inc., Med- on hand, limitations affects the other projects waiver The co- premiums patients’ icaid-eligible can cover section under “regarded being Expenditures categorically payments. as the as well purposes a differ- is Medicaid But that needy. eligible” as medically gov- state is benefits reimbursement one calculating hospital purpose, ent indirectly) (except than “eli- being rather as an individual thing ernments the same in section waiver Thus, Port- individuals. covered benefits. Medicaid gible” for to count state enables our affect deter- does Adventist land in- not otherwise would “which costs “eligible” section term that the mination not otherwise would “which or cluded” Medicaid, not means 1396o as” state “regarded to be use” permissible to receive merely use permissible expenditures as” “regarded plan, reimburse- purposes funds reimbursement. Shalala,17 in Beño we held As ment. Secretary to “obligates section Certification. Class III. proposed merits evaluate the merits conclusion our Because poten- scope and including project, dis- challenge plaintiffs’ obviates recipients.”18 on AFDC impact tial regard- of discretion exercise trict court’s thing same not the evaluation policy it. certification, reach need we ing class under section limits precise decision our argue that Conclusion Center Medical Adventist Portland matter of aas *6 Secretary is correct analysis, contrary requires Thompson19 expan- necessary for no waiver law that popula- expansion an if a state covers populations sion tion, premium the then co-pay- the to exceed enable to population. expansion to the apply limits applicable limitations ment peo- is that argument core flexibility individuals. these deemed expansion in an ple of demonstra- goal facilitates state not what That is Medicaid. “eligible” and better new developing projects, tion held. Portland Adventist assistance medical ways to Adventist, provid- hospitals Portland In including needy, populations low-income services ing Medicaid. expansion their services to have sued RE- AND PART reimburse- IN in federal AFFIRMED counted that, under sec- held IN We PART. formulas. VERSED ment provid- services 1315, on expenditures tion appeal. on its own costs to bear party Each demonstration approved in an ed MOSKOWITZ, Judge, District expenditures “be should concurring: only 1315 But section plan.”20 reached result I concur While not which “expenditures,” which discusses I because separately write I majority, expend- money is for whom individuals question statute agree that do being under as” “regarded ed, are to issue on the unambiguously 1396, speaks Section plan. Thompson, v. Ctr. Med. Adventist Portland 1994). 19. (9th Cir. 30 F.3d 17. Cir.2005). (9th 1091, 1096 Id. at Id. requirements for expansion population cov- ble populations. As the Supreme Court erage under a demonstration project. In has recognized, deference to administra- “ particular, I am unable to find the clear tive interpretations is appropriate ‘when- statutory mandate for limiting the applica- ever [a] decision as to the meaning or bility 1396o(f) of Section to only mandatory reach of a statute has involved reconciling and optional, but not expansion, popula- conflicting policies, and a full understand- tions within a project. ing of the force of the statutory policy in However, we are not left the given to search blind- situation depended has upon ly for the meaning of the relevant more statutes. than ordinary knowledge respecting Rather, the Secretary has already inter- subjected matters agency regula- ” preted the statutory strictures relevant to tions.’ 844,104 Id. S.Ct. 2778 (quoting projects and determined United Shimer, U.S. that a Section 1315 waiver of Medicaid (1961)). program regulations is not for, needed nor does it any have to, applicability
populations. This is because Medicaid
regulations do not apply to individuals who for Medicaid, such as the expansion populations covered under Ore- UNITED STATES of America, gon’s demonstration project. The Secre- Plaintiff-Appellee, tary’s approval of the Oregon project was given in accordance with this determina-
tion. Nestor SANDOVAL-SANDOVAL, a.k.a. Lopez,
I Hector find that the Secretary’s Defendant- view is “based on a permissible Appellant. construction of the [rele- vant] statute.” U.S.A., Chevron Inc. v. No. 06-30370. Natural Resources Council, Inc., Defense United States Court Appeals, 837, 843, S.Ct. Ninth Circuit. L.Ed.2d 694 *7 Accordingly, I would defer to the reasonable interpretation of May Submitted 2007.* the Secretary, who is entrusted to adminis- Filed May 23, 2007. ter the demonstration project authority specified in 42 U.S.C. id. 844-45, 104 (“[Considerable S.Ct. 2778
weight should be accorded to an executive
department’s construction of a statutory
scheme it is ”). entrusted to administer....
This deference is all the more appropri-
ate light of the difficulty attendant
parsing the dense and technical language
employed in the Medicaid provisions at
issue and determining the appropriate
scope of strictures when
coverage is expanded to otherwise ineligi-
* panel unanimously finds this case suit- R.App. 34(a)(2). Fed. P. able for decision without oral argument.