Wood v. TompkinsWood v. Tompkins
- Reporters:
- ,
- Before:
- Nathaniel R. Jones, Boyce F. Martin Jr., Batchelder
NATHANIEL R. JONES, Circuit Judge.
Plaintiffs-Appellees Randy and Diane Wood initiated this action on behalf of themselves, their minor son Evan, and all parents and children in the State of Ohio who have applied for admission to, or are participating in, the “Medically Fragile Waiver” program administered by Defendant-Appellant, the director of Ohio‘s Department of Human Services.1 Plaintiffs claim that the director‘s administration of the waiver program violates
This is an interlocutory appeal from the denial of Defendant‘s motion to dismiss. The issue before us is whether Plaintiffs have a private right of action under
I.
Medicaid is a cooperative federal-state program through which the federal government offers financial assistance to participating states that provide medical care to needy individuals. Although participation is voluntary, states choosing to receive federal Medicaid funds must comply with the requirements of the Medicaid Act and the regulations promulgated by the Secretary of Health and Human Services (HHS). Ohio is a participating state.
Specific provisions of the Medicaid Act,
In 1989, Ohio applied for, and received, a waiver pursuant to
Plaintiffs allege that Evan Wood, now five years old, suffers from such severe mental and physical disabilities that he requires 24 hour a day nursing assistance.4 Since July 1990, Evan has been cared for at his parents’ home. Until August 1992, a private health insurance policy paid for Evan‘s medical and nursing services. But on August 1, 1992, all private insurance for Evan terminated.
In anticipation of this termination, the Woods applied in February 1992 to Ohio‘s Department of Human Services for a Medically Fragile Waiver. On May 1, 1992, the director notified the Woods that Evan would not be entered into the waiver program for the sole reason that “they would not accept the number of hours [of skilled nursing services]
On July 1 and July 27, 1992, the Woods appeared at two administrative hearings. They attempted to introduce evidence showing that Evan required a minimum of 16 hours of nursing care per day, and that this level of care would cost much less than if Evan had to go to a hospital. The Woods allege, however, that the hearing officer refused to admit this evidence on the ground that the director had imposed a statewide cap, under which Evan could receive only 10 to 11 hours per day of nursing services.
The Woods allege that the statewide cap is not based on any sort of evaluation of the medical needs of the individual waiver program recipients, that it puts all of the waiver program recipients at risk, and that, as implemented, it violates several provisions of the Medicaid Act and the regulations promulgated thereunder. In particular, their complaint alleges violations “including, but not limited to the following provisions:”
On July 30, 1992, Plaintiffs filed this action in the Hamilton County Court of Common Pleas. Defendant promptly removed the case to the district court. On February 1, 1993, Defendant filed a motion to dismiss, or in the alternative, for summary judgment. In this motion, Defendant‘s primary argument was that the relevant Medicaid provisions did not give rise to a Sec. 1983 private right of action.5 On March 17, the court heard oral argument, and on March 31, it granted in part and denied in part Defendant‘s motion to dismiss.
The claims that the court dismissed are not before the panel on appeal.6 As for the claims not dismissed, the court did not so much as mention most of the Medicaid Act provisions that, according to Plaintiffs’ Amended Complaint, Defendant allegedly violated.7 Instead, the court focussed most of its attention on provisions that Plaintiffs did not discuss in their Amended Complaint, namely
II.
The only issue certified for interlocutory appeal is whether the relevant statutes give rise to rights that are enforceable under Sec. 1983.11 The parties have also briefed the issues of Randy and Diane Woods’ standing to bring this suit, and the court‘s refusal to dismiss Plaintiffs’ various due process claims on the pleadings. These questions were not certified for appeal, and we decline to address them at this time.12 Defendants have also briefed the merits of the case, but it would be premature for us to address them at this stage of the litigation.
When reviewing an interlocutory appeal arising from a district court‘s denial of a 12(b)(6) motion to dismiss, “the appellate court has no authority to review disputed questions of fact. Therefore, our review of the district court‘s decision is limited to pure questions of law.” Foster Wheeler Energy Corp. v. Metropolitan Knox Solid Waste Auth., Inc., 970 F.2d 199, 202 (6th Cir.1992) (citations omitted). We review pure questions of law de novo. See, e.g., Waxman v. Luna, 881 F.2d 237, 240 (6th Cir.1989).
III.
A. Section 1983 Jurisprudence
A plaintiff alleging a violation of a federal statute will be permitted to sue under Sec. 1983 unless (1) “the statute does not create enforceable rights, privileges, or immunities within the meaning of Sec. 1983,” or (2) “Congress has foreclosed such enforcement of the statute in the enactment itself.”
Wilder v. Virginia Hosp. Ass‘n, 496 U.S. 498, 508, 110 S.Ct. 2510, 2517, 110 L.Ed.2d 455 (1990) (quoting Wright v. Roanoke Redevelopment and Housing Authority, 479 U.S. 418, 423, 107 S.Ct. 766, 770, 93 L.Ed.2d 781 (1987)).
To determine whether the first of these two exceptions applies, the Court has developed a three part test:
(1) Was the provision in question intended to benefit the plaintiff?
(2) Does the statutory provision in question create binding obligations on the defendant governmental unit, rather than merely expressing a congressional preference? and
(3) Is the interest the plaintiff asserts specific enough to be enforced judicially,
Wilder, 496 U.S. at 509, 110 S.Ct. at 2517; Golden State, 493 U.S. at 106, 110 S.Ct. at 448. The plaintiff bears the burden of proving that this exception does not apply. Golden State, 493 U.S. at 106, 110 S.Ct. at 448.
As for the second of the exceptions, the only way Congress forecloses Sec. 1983 enforcement is by “providing a comprehensive enforcement mechanism for protection of a federal right.” Id. Mere availability of administrative protections is not sufficient. Id. “Rather, the statutory framework must be such that allowing a plaintiff to bring a Sec. 1983 action would be inconsistent with Congress’ carefully tailored scheme.” Id. at 107, 110 S.Ct. at 449. “We do not lightly conclude that Congress intended to preclude reliance on Sec. 1983 as a remedy for the deprivation of a federally secured right.” Id. The defendant bears the burden of proving that this exception applies. Id.
In Wilder, the Court applied this test to the Boren Amendment to the Medicaid Act,
In Suter v. Artist M., --- U.S. ----, ----, 112 S.Ct. 1360, 1363, 118 L.Ed.2d 1 (1992), the Supreme Court discussed whether a provision of the Adoption Assistance and Child Welfare Act of 1980,
Nevertheless, the Suter dissent remarked that “the Court‘s conclusion was plainly inconsistent with this Court‘s decision just two Terms ago in Wilder.” Id. at ----, 112 S.Ct. at 1371 (Blackmun, J., dissenting). However, the Suter majority expressly relied on parts of Wilder, carefully distinguished other parts, did not overrule the earlier case, and is entirely consistent with it. The First, Second, Seventh, and Eighth Circuits have so ruled, and we agree with them in this regard. See, e.g., Miller by Miller v. Whitburn, 10 F.3d 1315, 1319 (7th Cir.1993) (“We have previously held that Suter . . . is not the death knell of the analytic framework established in Wilder.“); Marshall v. Switzer, 10 F.3d 925, 928 (2d Cir.1993); Albiston v. Maine Commissioner of Human Services, 7 F.3d 258, 263 (1st Cir.1993) (”Suter‘s impact on our Sec. 1983 jurisprudence is neither particularly ‘far-reaching’ nor ‘plainly inconsistent’ with prior precedent.“); Arkansas Medical Society, Inc. v. Reynolds, 6 F.3d 519, 525 (8th Cir.1993) (“[A]lthough some commentators have found Suter and Wilder difficult to reconcile, we choose to synthesize the two cases by proceeding with the two-step Golden State analysis used in Wilder, bearing in mind the additional considerations mandated by Suter.“); Stowell v. Ives, 976 F.2d 65, 68 (1st Cir.1992) (“[W]e think it is much too early to post epitaphs for Wilder and its kin.... [W]e believe that it is both prudent and possible to synthesize the teachings of Suter with the Court‘s prior precedents, [and] we examine appellants’ claims under the Wilder framework as reconfigured by the neoteric principles announced in Suter.“).
In the present case, the district court certified the private right of action issue for interlocutory appeal specifically “in light of the confusion generated by the Suter opinion, and the difficulty the district courts have had in reconciling that opinion with the Wilder opinion.” J.A. at 413. The court did not then have the benefit of four different circuits having cleanly reconciled the two cases.
In his brief on appeal, relying on the Suter dissent, Defendant contends that Suter significantly changed the law such that the district court in the present case erred by applying the Wilder framework. Defendant‘s Brief at 21-22. In light of the cases cited above, and because a careful reading of Suter reveals that it is entirely consistent with Wilder, this contention is without merit.
B. The Provisions Not Discussed By the Court Below
As noted above, the court below did not consider whether
C. Applying the Three Part “Enforceable Rights” Test
We turn now to the provisions on which the district court did rule. The court held that
1. 42 U.S.C. Sec. 1396n(c)(2) and 42 C.F.R. Sec. 441.302
a.
First of all, although some of the assurances that a state is required to make under Section 1396n(c)(2) were obviously designed
Second,
Third, there is nothing vague or amorphous about what the statute or corresponding regulations require of participating states. The duties set forth therein do not involve any fuzzy, undefined concepts like “reasonable efforts.”16 Rather, these duties involve unambiguous directives that are well within the ability of the judiciary to enforce. Thus,
b.
Defendant maintains that
The Suter Court recognized that, with regard to the Adoption Assistance and Child Welfare Act, the Secretary was required to play an active role in overseeing state plans for reimbursing foster care payments. --- U.S. at ----, 112 S.Ct. at 1368. The Court explained that this active role “show[s] that the absence of a remedy to private plaintiffs under Sec. 1983 does not make the reasonable efforts clause a dead letter.” Id. at ----, 112 S.Ct. at 1369. In the present case, Defendant apparently interprets this passage to mean that the Secretary‘s oversight is somehow inconsistent with a private right of action. The Suter Court was, rather, anticipating and rebutting the possible argument that its analysis rendered Congress‘s requirement of “reasonable efforts” entirely meaningless and unenforceable. Id. The point in Suter was that the term “reasonable efforts,” as used in the Adoption Act, is too vague to create judicially enforceable rights, but not too vague to be enforced by the Secretary,
To make the analogous point in the present case, were we to hold that
c.
Defendant also argues that
Defendant went awry when he failed to follow the Stowell court‘s guidance regarding how to determine who bears the onus of compliance. This guidance was offered in the context of the Stowell court‘s attempt to distinguish a key footnote in Suter. In footnote 12, the Suter Court set forth a paradigm example of a statute that imposed “precise requirements on the States aside from the submission of a plan“:
For example,
42 U.S.C. Sec. 672(e) provides that “no Federal payment may be made under this part” for a child voluntarily placed in foster care for more than 180 days unless within that period there is a judicial determination that the placement is in the best interest of the child.
--- U.S. at ---- n. 12, 112 S.Ct. at 1369 n. 12. The Suter Court found that, in contrast with the “reasonable efforts” clause of
In Stowell, the appellants attempted to argue that
In point of fact, section 1396a(c)(1) is identical, in relevant respects, not to section 672(e) but to section 671(a)(15)--the statutory provision that the Suter Court, in footnote 12, was contrasting with 672(e). The Court deemed it noteworthy that section 671(a)(15) requires “submission of a plan to be approved by the Secretary” while section 672(e) provides that “no Federal payment may be made” unless certain conditions are met. In other words, the Suter Court distinguished between cases in which, on the one hand, a statutory provision is, in effect, a communication to a specific federal official whose approval is required prior to disbursement of federal funds (section 671(a)(15)), and cases in which, on the other hand, a statutory provision is, in effect, a communication from Congress to those States that elect to apply for earmarked funds (section 672(e)).
976 F.2d at 71 (citation omitted).
Applying this distinction to the statute at issue in the present case, it is clear that
d.
In light of the foregoing, it follows that at least some of the subsections of
For example,
Therefore, although we affirm the district court‘s holding that
2. 42 U.S.C. Sec. 1396n(f)(1)
Like
Section 1396n(f)(1) provides that even after a waiver is granted, the Secretary shall continue to monitor the state‘s waiver program in order to assure that the requirements continue to be met, and shall terminate waivers where he finds states to be noncompliant. This statute places the onus of compliance directly upon the Secretary rather than the states. Like
3. 42 C.F.R. Sec. 441.303(f)(1)
This regulation provides that a state must furnish the HCFA with “[a]n explanation with supporting documentation satisfactory to HCFA of how the agency estimated the per capita expenditures for services.” It further provides a detailed formula that is to be used for making these estimates. The regulation makes it clear that its purpose is to limit the amount of money that a state may receive; the costs under a waiver program “must not exceed . . . the cost of services in the absence of a waiver.”
D. Congressional Foreclosure of a Sec. 1983 Remedy
In Wilder, the Supreme Court held that the administrative remedies set forth in the
Defendant argues to the contrary, on the ground that the degree of the Secretary‘s oversight over the Boren Amendment is less than his oversight over home care waiver programs. Defendant relies upon Carelli v. Howser, 923 F.2d 1208, 1213 (6th Cir.1991), for the erroneous proposition that oversight by the Secretary is dispositive regarding the question of congressional foreclosure of a Sec. 1983 action. Defendant‘s Br. at 36-37. However, Defendant has misread our Carelli decision, in which we made it clear that, with regard to the statute at issue in that case, “we do not conclude that private action is foreclosed under all circumstances by the comprehensiveness of the remedial process.” 923 F.2d at 1213.23 Nothing in Carelli remotely suggests that mere oversight by the Secretary in and of itself constitutes a remedial scheme so comprehensive as to foreclose a private remedy pursuant to Sec. 1983; such a suggestion would not only be implausible, but would also be contrary to the explicit holding of Wilder.
IV.
For the foregoing reasons, we affirm that
BATCHELDER, Circuit Judge, dissenting.
Because I conclude that the challenged provisions of the Medicaid statute do not create rights enforceable in a private action by the Woods, I respectfully dissent.
Before addressing my main concern with the majority‘s holding, I must point out that I disagree with the majority‘s interpretation of the scope of our review on an interlocutory appeal. The majority states:
The only issue certified for interlocutory appeal is whether the relevant statutes give rise to rights that are enforceable under Sec. 1983. The parties have also briefed the issues of Randy and Diane Woods’ standing to bring this suit, and the court‘s refusal to dismiss Plaintiffs’ various due process claims on the pleadings. These questions were not certified for appeal, and we decline to address them at this time.
Slip. Op. at 604 (footnotes omitted). While this court can, if it chooses, decline to address issues of secondary relevance on an interlocutory appeal, it clearly has the power to address all the issues raised in the case below. In Easley v. Pettibone Mich. Corp., 990 F.2d 905, 912 (6th Cir.1993), this court noted: ” ‘we recognize that even those issues not properly certified [pursuant to
The statute [
Sec. 1292(b) ] refers to certifying an “order” for interlocutory appeal. It is not a method of certifying questions. The question is the reason for the interlocutory appeal, but the thing under review is the order. [Citations omitted]. Were things otherwise, there would be substantial risk of producing an advisory opinion.
See also Walsh v. Ford Motor Co., 807 F.2d 1000, 1002 n. 2 (D.C.Cir.1986) (“Section 1292(b) . . . appeal is from an order of the district court, not from the particular question that the district court found controlling“), cert. denied, 482 U.S. 915, 107 S.Ct. 3188, 96 L.Ed.2d 677 (1987) (emphasis in original). Thus, this court may address any issue raised by the parties below if it is of importance in resolving the appeal.1-1
I now come to my main concern with the majority‘s decision; that is, the majority‘s determination that the sections of the Medicaid Act relied upon by the Woods create private rights of action. I note that this is all the majority determined; that various sections of the Medicaid statute confer a Sec. 1983 private right of action upon home-care Medicaid recipients, and not that, under the provisions of the Medicaid Act upon which they rely, the Woods have stated a cause of action for which relief can be granted. While this action is an interlocutory appeal from a denial of a motion to dismiss, which is not usually appealable, the fact of the matter is that one of the main reasons for permitting interlocutory appeals is to “materially advance the ultimate termination of the litigation.”
As noted in the discussion above, when this court reviews an interlocutory appeal, the entire order is open to us. In fact, were this not the case, there is a real possibility that advisory opinions would be issued; that is, opinions that only deal in the abstract with the specific question of law certified by the district court and that do not materially advance the resolution of the controversy. See Church of Scientology of Hawaii v. United States, 485 F.2d 313, 314 (9th Cir.1973) (“the court does not render advisory opinions or decide abstract propositions“); Minnesota v. United States Steel Corp., 438 F.2d 1380, 1384 (8th Cir.1971) (“The legal questions should not be considered in the abstract. There must be precision in proof of fact worthy to serve as the premises essential to balance and weigh the legal issues involved.“).
I find disturbing the majority‘s total silence on the issue of whether the Medicaid Act grants a private right of action to these plaintiffs, the Woods, such that they have stated a claim for which relief can be granted. I would hold that it does not. By their silence, the majority appears to adopt the position that if the Medicaid Act creates any private rights of action, then the Woods should be permitted to proceed with their case regardless of whether the right they are
In essence, what the plaintiffs seek in this case is a judicial determination that their son is not receiving the amount of home-care to which they believe he is entitled. This is the Woods’ primary contention, and all of their other claims are little more than a footnote to it. It is apparently the Woods’ position that they are the appropriate party to make the determination as to how much care Evan is entitled to under the waiver program. However, nothing in the language of the relevant provisions of the Medicaid Act supports this position. What the language of the Act does specifically provide is that
[t]he Secretary may by waiver provide that a State plan approved under this subchapter may include as ‘medical assistance’ under such plan payment for part or all of the cost of home or community-based services . . . approved by the Secretary which are provided pursuant to a written plan of care to individuals with respect to whom there has been a determination that but for the provision of such services the individuals would require the level of care provided in a hospital or a nursing or intermediate care facility....
The language of this section specifically permits the state to provide for part or all of the cost of home or community-based services; I find no provision of the code or regulations that requires the state to defer to the demands of the particular recipient in determining how much care the state will provide pursuant to the plan. Any other reading renders the “part or all” language of the statute nugatory, as it is a fair bet that every potential recipient of the waiver program who does not receive the number of hours of home-based care to which she feels entitled will bring a private suit to compel the state to comply with her demands.
I do not take issue with the majority‘s analysis of the Suter decision, or their determination that Suter can be harmonized with Wilder. I do however disagree about the side of the Wilder/ Suter fence on which the claims made by the plaintiffs fall. It seems to me that, simply put, the issue in this case is whether the Woods can state a claim under the relevant provisions of the Act which would allow them to compel the state to provide a greater number of hours of home-care. In Suter v. Artist M., --- U.S. ----, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992), the Supreme Court determined that provisions of the Adoption Assistance and Child Welfare Act do not create privately enforceable rights. The Suter court noted that the Adoption Act mandated that “[i]n order for a State to be eligible for payments under this part, it shall have a plan approved by the Secretary.” The Court held the effect of this language was that “the Act does place a requirement on the States, but that requirement only goes so far as to ensure that the State have a plan approved by the Secretary which contains the 16 listed features.” Suter, --- U.S. at ----, 112 S.Ct. at 1367. Similarly, in the case before us now,
In short, I would hold that the provisions of the Medicaid statute relied upon by the Woods do not, under these facts, create a claim for which relief can be granted. I would reverse the district court and remand with instructions to dismiss for failure to state a claim for which relief can be granted.
Notes
This principle can have no better illustration than the majority‘s declining to address the issue of standing. It is hornbook law that
Standing is a threshold inquiry that a court must consider prior to addressing the merits of an appeal. T.H.E. Ins. Co. v. Naghtin, 916 F.2d 1082, 1085 (6th Cir.1990); Jaimes v. Toledo Metropolitan Housing Auth., 758 F.2d 1086, 1092 (6th Cir.1985) (“Even if no party to this appeal has raised the issue of standing, this court can and must address the issue on its own motion“). Article III of the United States Constitution requires that federal jurisdiction be limited to “cases” or “controversies.” One aspect of that limitation is standing....
United States v. Van, 931 F.2d 384, 387 (6th Cir.1991). Therefore, this court not only can, but must address the issue of standing on an interlocutory appeal. It would make little sense to address only the specific question certified for appeal if the litigants lacked standing in the first instance. In this case, the defendants assert that the plaintiffs lack standing. The district court rejected this claim and found that the Woods do have standing. The resolution of this issue requires a more direct determination than that provided in footnote 12 of the majority‘s opinion. Having said this, I note that if the Act did in fact provide a cause of action to the Woods, I would have no disagreement with the district court‘s holding that the Woods have standing to bring this action on behalf of their son Evan.
Section 1396n(c)(1) provides in pertinent part:
The Secretary [of Health and Human Services] may by waiver provide that a State plan approved under this subchapter may include as “medical assistance” under such plan payment for part or all of the cost of home or community-based services (other than room and board) approved by the Secretary which are provided pursuant to a written plan of care to individuals with respect to whom there has been a determination that but for the provision of such services the individuals would require the level of care provided in a hospital or a nursing facility or intermediate care facility for the mentally retarded the cost of which could be reimbursed under the State plan.
Section 1396a(a)(10)(A)(ii)(VI), in turn, grants authority to participating states to create plans that could qualify for the waiver described in Sec. 1396n(c)(1).
The district court‘s ruling is ambiguous as to whether these provisions created a series of enforceable “rights,” see J.A. at 403, or whether they together created “a [single] right enforceable under section 1983,” J.A. at 410 (emphasis added)
The court also held: that it would be premature to dismiss Plaintiffs’ various due process claims, which rest on fact-specific assertions, at this early stage in the litigation, before the parties had even commenced discovery; and that, because Medicaid was intended to benefit families as a whole, Randy and Diane Wood had standing to bring the suit. J.A. at 411-13.
In pertinent part, Sec. 1396n(c)(2) provides:
A waiver shall not be granted under this subsection unless the State provides assurances satisfactory to the Secretary that--
(A) necessary safeguards (including adequate standards for provider participation) have been taken to protect the health and welfare of individuals provided services under the waiver and to assure financial accountability for funds expended with respect to such services;
(B) the State will provide, with respect to individuals who [qualify], for an evaluation of the need for inpatient hospital services, nursing facility services, or services in an intermediate care facility for the mentally retarded;
(C) such individuals who are determined to be likely to require the level of care provided in a hospital, nursing facility, or intermediate care facility for the mentally retarded are informed of the feasible alternatives, if available under the waiver, at the choice of such individuals, to the provision of inpatient hospital services, nursing facility services, or services in an intermediate care facility for the mentally retarded;
(D) under such waiver the average per capita expenditure estimated by the State in any fiscal year for medical assistance provided with respect to such individuals does not exceed 100 percent of the average per capita expenditure that the State reasonably estimates would have been made in that fiscal year for expenditures under the State plan for such individuals if the waiver had not been granted; and
(E) the State will provide to the Secretary annually, consistent with a data collection plan designed by the Secretary, information on the impact of the waiver granted under this subsection on the type and amount of medical assistance provided under the State plan and on the health and welfare of recipients.
In pertinent part, Sec. 441.302 provides:
HCFA [Health Care Financing Administration of the Department of Health and Human Services] will not grant a waiver under this subpart and may terminate a waiver unless the Medicaid agency provides the following satisfactory assurances to HCFA:
(a) Health and Welfare--Assurance that necessary safeguards have been taken to protect the health and welfare of the recipients of the services. Those safeguards must include--
(1) Adequate standards for all types of providers that provide services under the waiver;
(2) Assurance that the standards of any State licensure or certification requirements are met for services or for individuals furnishing services that are provided under the waiver; and
(3) Assurance that all facilities covered by section 1616(e) of the Act, in which home and community-based services will be provided, are in compliance with applicable State standards that meet the requirements of 45 CFR Part 1397 for board and care facilities.
(b) Financial accountability.--The agency will assure financial accountability for funds expended for home and community-based services....
(c) Evaluation of need.--Assurance that the agency will provide for an evaluation (and periodic reevaluations) of the need for the level of care provided [by an institution], when there is a reasonable indication that individuals might need such services in the near future but for the availability of home and community-based services.
(d) Alternatives.--Assurance that when a recipient is determined to be likely to require the level of care provided in an [institution], the recipient or his or her legal representative will be--
(1) Informed of any feasible alternatives available under the waiver; and
(2) Given the choice of either institutional or home and community-based services.
(e) Expenditures.--Assurance that [home and community-based care will not be more expensive than institutional care would have been but for the waiver program].
(f) Reporting.--Assurance that annually, the agency will provide HCFA with information on .... the waiver‘s impact on--
(1) The type, amount, and cost of services provided under the State plan; and
(2) The health and welfare of recipients.
It is worth noting that the enforceable rights in question are not merely procedural rights that the state‘s plan make the relevant provisions. Rather, the rights that are enforceable include the substantive right that the state actually act in accordance with its plan; it must implement that which it assures. The Wilder Court made this point clear when it rejected an argument that the Boren Amendment‘s requirements were merely procedural:
Any argument that the requirements of findings and assurances [that reimbursements to health care providers be reasonable and adequate] are procedural requirements only and do not require the State to adopt rates that are actually reasonable and adequate is nothing more than an argument that the State‘s findings and assurances need not be correct.
We reject that argument because it would render the statutory requirements of findings and assurances, and thus the entire reimbursement provision, essentially meaningless. It would make little sense for Congress to require a State to make findings without requiring those findings to be correct.
496 U.S. at 513-14. Analogously, as regards Sec. 1396n(c)(2)(A), it would make little sense for Congress to require a participating state to assure in its Medicaid plan that it will protect the health and welfare of home care recipients, without also requiring that the state actually implement the promised safeguards.
We are, of course, bound by the Audette decision. Salmi v. Secretary of Health and Human Services, 774 F.2d 685, 689 (6th Cir.1985) (a panel is bound by the decisions of another panel of this court). Were we not, we would prefer to avoid the seemingly artificial distinction created by the First Circuit‘s Stowell opinion between statutes that place the “onus of compliance” directly upon the Secretary and those that place a direct obligation on the states. According to the Stowell court:
In Suter, the Court held that an intended recipient of programmatic benefits could not sue under section 1983 if the federal statute merely required that the State submit a plan to a federal agency satisfying certain criteria, because such a “requirement only goes so far as to ensure that the State have a plan approved by the Secretary which contains [the listed criteria].” Suter, --- U.S. at ----, 112 S.Ct. at 1367. Thus, Suter instructs that, when a provision in a statute fails to impose a direct obligation on the States, instead placing the onus of compliance with the statute‘s substantive provisions on the federal government, no cause of action cognizable under section 1983 can flourish.
976 F.2d at 69-70. A careful review of Suter, however, makes clear that an intended recipient can indeed sue under Sec. 1983 to enforce the mandatory requirement that the participating state have “a plan approved by the Secretary which contains the 16 listed features.” --- U.S. at ----, 112 S.Ct. at 1367. Because the respondents in Suter agreed that Illinois complied with this requirement, they had no desire to pursue this particular claim.
Instead, the Suter respondents were attempting to enforce the “reasonable efforts” provision in the Act, just one of the specific features of the requisite Illinois plan. Suter, --- U.S. at ----, 112 S.Ct. at 1370. The Court initially noted that the Wright and Wilder opinions “took pains to analyze the statutory provisions in detail, in light of the entire legislative enactment, to determine whether the language in question created ‘enforceable rights, privileges, or immunities within the meaning of Sec. 1983.’ ” Id. --- U.S. at ----, 112 S.Ct. at 1367. Accordingly, the Court reviewed the Act in detail, finally concluding that, given the legislation‘s lack of specificity, the “reasonable efforts” language was too ambiguous to create a right enforceable by Sec. 1983. Id. --- U.S. at ----, 112 S.Ct. at 1370. At no point did the Court undertake an “onus of compliance” analysis. Thus, under Suter, what is relevant is not whether a defendant bears a direct or indirect “onus of compliance,” but rather whether the statute at issue imposes mandatory and particularized obligations upon that defendant, thereby benefiting the plaintiff.
As Suter “counsels that each statute must be interpreted by its own terms,” id. --- U.S. at ---- n. 8, 112 S.Ct. at 1367 n. 8, it seems inappropriate to rest this court‘s Sec. 1983 inquiry solely on whether the statute in question initially bids the Secretary to act or instead directly commands a participating state to act. Were we not bound by the Audette court‘s embracement of Stowell, this panel would decline to adopt such an impermissibly truncated mode of analysis.