HASSAN SABREE, By his Mother v. Estelle B. Richman

1
PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
No. 03-1226
HASSAN SABREE, By his Mother and
Next-Friend, Hana Sabree;
CATHERINE MEADE, By her Father
and Next-Friend, Robert A.
Meade; JOSEPH FRAZIER, By his
Mother and Next-Friend,
Patricia Frazier, for Themsleves and All
Others Similarly
Situated
v.
* ESTELLE B. RICHMAN, In Her
Official Capacity as Secretary of
the Department of Public Welfare of the
Commonwealth of
Pennsylvania
Hassan Sabree, Catherine
Meade, and Joseph Frazier,
Appellants
*{Substitution Pursuant to Clerk's
Order dated 3/28/03
and F.R.A.P. Rule 43(c)}
APPEAL FROM THE UNITED
STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF
PENNSYLVANIA
D.C. Civil No. 02-cv-03426
District Judge: The Honorable Herbert J.
Hutton
Argued: September 11, 2003
Before: ALITO, BARRY, and AMBRO,
Circuit Judges
(Opinion Filed: May 11, 2004)
Stephen F. Gold, Esq. (Argued)
125 South 9th Street
Suite 700
Philadelphia, PA 19107
-AND-
Ilene W. Shane, Esq.
Disabilities Law Project
1315 Walnut Street
Suite 400
Philadelphia, PA 19107
Attorneys for Appellants
Doris M. Leisch, Esq. (Argued)
Commonwealth of Pennsylvania
Department of Public Welfare
1400 Spring Garden Street
State Office Building
Philadelphia, PA 19130
-AND-
John A. Kane, Esq.
Commonwealth of Pennsylvania
Office of Legal Counsel

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Department of Public Welfare
P.O. Box 2675
Health & Welfare Building
Seventh & Forster Streets
Harrisburg, PA 17120
Attorneys for Appellees
Sarah Somers, Esq.
National Health Law Program
211 North Columbia Street
Chapel Hill, NC 27514
Attorney for Amicus-Appellants
OPINION OF THE COURT
BARRY, Circuit Judge
I. INTRODUCTION
When Congress offers money to
the states, it often imposes conditions on
acceptance. States welcome federal
funding to help underwrite many of the
core services they provide to their
citizens. Education, healthcare, and
public safety, to name a few, while
typically state concerns, are usually
funded in part by federal dollars that
come with strings attached. This case
raises the question–not new, but of first
impression in this Court following
Gonzaga University v. Doe, 536 U.S. 273
(2002)–of what happens when a state
allegedly fails to live up to the conditions
imposed on it by Congress.
Plaintiffs are a class of mentally
retarded adults in need of medical
services from an intermediate care
facility for persons with mental
retardation (“ICF/MR services”).
Although they qualify for state assistance
to obtain these services under the
Medicaid Act, that assistance has not
been forthcoming. In an effort to force
Pennsylvania to provide the needed
services, plaintiffs, pursuant to 42 U.S.C.
§ 1983, sued the Secretary of the
Pennsylvania Department of Public
Welfare. Pennsylvania argues that it
would provide assistance if it could but
that it cannot, and that, in any event, the
sole remedy for its non-compliance with
the Medicaid Act is the suspension or
revocation of funding from Congress.
We disagree.1
1There appears to be a disagreement
among our sister courts of appeals as to
whether, pursuant to Medicaid, a state
must merely provide financial assistance
to obtain covered services, or provide the
services themselves. See Bruggeman v.
Blagojevich, 324 F.3d 906, 910 (7th Cir.
2003) (“[T]he statutory reference to
‘assistance’ appears to have reference to
financial assistance rather than to actual
medical services, though the distinction
was missed in Bryson v. Shumway, 308
F.3d 79, 81, 88-89 (1st Cir. 2002) and
Doe v. Chiles, 136 F.3d 709, 714, 717
(11th Cir. 1998).”). The only issue
before us, however, is whether plaintiffs
may sue Pennsylvania under 42 U.S.C. §
1983 to obtain the “assistance” for which

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The District Court, relying heavily
on Gonzaga University, concluded that
Congress had not unambiguously
conferred the rights that plaintiffs sought
to vindicate under § 1983, and dismissed
the suit.2 Sabree v. Houston, 245 F.
Supp. 2d 653, 659 (E.D. Pa. 2003). At
first blush, language in Gonzaga
University would appear to support that
conclusion. In Gonzaga University, the
Court foreclosed the ability of a student
to enforce, by means of § 1983,
provisions of the Family Educational
Rights and Privacy Act of 1974
(“FERPA”).3 Gonzaga Univ., 536 U.S.
at 283. The Chief Justice, writing for the
Court, stated emphatically: “We now
reject the notion that our cases permit
anything short of an unambiguously
conferred right to support a cause of
action brought under § 1983.” Id.
(emphasis added).
The Court, no doubt, has set a
high bar for plaintiffs. Nonetheless, after
having considered the relevant provisions
of the Medicaid Act against the backdrop
of Gonzaga University, we are convinced
that Congress unambiguously conferred
the rights which plaintiffs here seek to
enforce. Accordingly, we will reverse
the order of the District Court.
II. DISCUSSION
Title XIX of the Social Security
Act, codified at 42 U.S.C. §§ 1396-
1396v and popularly known as the
“Medicaid Act,” established a
“cooperative federal-state program under
which the federal government furnishes
funding to states for the purpose of
providing medical assistance to eligible
low-income persons.” Pa. Pharm. Ass’n
v. Houstoun, 283 F.3d 531, 533 (3d Cir.
they qualify. To resolve this issue we
need not, and do not, address the remedy
that might be available to plaintiffs, but
leave that to the District Court in the first
instance.
2Section 1983 imposes liability on
anyone who, under color of state law,
deprives a person “of any rights,
privileges, or immunities secured by the
Constitution and laws.” 42 U.S.C. §
1983. Rights conferred by federal statute
are enforceable under § 1983. Maine v.
Thiboutot, 448 U.S. 1, 4-8 (1980).
3The relevant FERPA language
mandated:
No funds shall be made
available under any
applicable program to any
educational agency or
institution which has a
policy or practice of
permitting the release of
education records (or
personally identifiable
information contained
therein . . . ) of students
without the written consent
of their parents to any
individual, agency, or
organization.
20 U.S.C. § 1232g(b)(1).

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2002). States are not required to
participate in the program, but states that
do accept federal funding must comply
with the Medicaid Act and with
regulations promulgated by the Secretary
of Health and Human Services (“HHS”).
Participating states must devise and
implement a state medical assistance plan
that is approved by the Secretary of
HHS. 42 U.S.C. § 1396; 42 C.F.R. §
430.10. A state that fails to comply with
its medical assistance plan runs the risk
of having its funding revoked by the
Secretary. 42 U.S.C. § 1396c.
There is no dispute that plaintiffs
qualify for ICF/MR services under
Pennsylvania’s medical assistance plan.
Nor is it disputed that plaintiffs have
languished on waiting lists for years,
unable to obtain these services. The only
dispute, and the one now before us, is
whether plaintiffs may sue Pennsylvania
under § 1983 to enforce the provisions of
Title XIX that require (1) a state to
provide medical assistance covering
ICF/MR services, and (2) to do so with
“reasonable promptness.” 42 U.S.C. §§
1396a(a)(8),4 1396a(a)(10),5 and
1396d(a)(15).6
That plaintiffs merit sympathy
does not escape our notice, but neither
does it govern our reasoning. Rather,
Gonzaga University provides the
4Section 1396a(a)(8) provides in
relevant part:
A State plan for medical
assistance must . . .
provide that all individuals
wishing to make
application for medical
assistance under the plan
shall have opportunity to
do so, and that such
assistance shall be
furnished with reasonable
promptness to all eligible
individuals . . . .
42 U.S.C. § 1396a(a)(8) (emphasis
added).
5Section 1396a(a)(10) provides in
relevant part: “A State plan for medical
assistance must . . . provide . . .for
making medical assistance available, . . .
to . . . all [eligible] individuals . . . .” 42
U.S.C. § 1396a(a)(10) (emphasis added).
6Section 1396d(a)(15) provides in
relevant part:
For purposes of this title
[42 U.S.C. §§ 1396 et seq.]
. . . [t]he term “medical
assistance” means payment
of part or all of the cost of
the following care and
services . . . for individuals
. . . who are [eligible:] . . .
services in an intermediate
care facility for the
mentally retarded . . . .
42 U.S.C. § 1396d(a)(15).

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dispassionate lens through which this
matter must be viewed. A three-step
analysis is required. First, we must
examine Gonzaga University to
determine the essential characteristics of
an “unambiguously conferred right.”
Second, we must assess whether the
statutory language of Title XIX imparts
an “unambiguously conferred right.”
Third, we must determine–if an
individual right has been unambiguously
conferred–whether Congress has
precluded individual enforcement of that
right. This analysis, which, as will
become clear, is assuredly not for the
timid, compels the conclusion that the
provisions invoked by plaintiffs–42
U.S.C. §§ 1396a(a)(8), 1396a(a)(10),
and 1396d(a)(15)–unambiguously confer
rights vindicable under § 1983.
A. Gonzaga University v. Doe and
Unambiguously Conferred
Rights – Step One
As the Court explained more than
twenty years ago, “[i]n legislation
enacted pursuant to the spending power,
the typical remedy for state
noncompliance with federally imposed
conditions is not a private cause of action
for noncompliance but rather action by
the Federal Government to terminate
funds to the State.” Pennhurst State Sch.
& Hosp. v. Halderman, 451 U.S. 1, 28
(1981). Nonetheless, as the Court
observed in Gonzaga University, in some
instances Congress has unambiguously
conferred rights that may be vindicated
by individual suits brought under §
1983.7
In Gonzaga University, the
plaintiff sought to enforce conditions
imposed on the State of Washington by
7We take as a given that when seeking
redress under § 1983 for violation of a
statutory right, a plaintiff need not
establish that Congress intended to
confer a remedy in addition to that right.
See, e.g., Gonzaga Univ., 536 U.S. at 284
(“Plaintiffs suing under § 1983 do not
have the burden of showing an intent to
create a private remedy because § 1983
generally supplies a remedy for the
vindication of rights secured by federal
statutes. Once a plaintiff demonstrates
that a statute confers an individual right,
the right is presumptively enforceable by
§ 1983.”).
That § 1983 provides a remedy for
statutorily conferred rights “makes
obvious sense.” Id. at 285. While the
creation of statutorily specific remedies
would make our task easier, Congress
has chosen to provide § 1983 as an all
purpose remedy. Obviously, we cannot
require a clear statement rule mandating
the specification of a right to sue within
the statutory text; to do so would
effectively repeal § 1983. Instead, we
must, as the Court demonstrates in
Gonzaga University, examine the
statutory text to determine whether
Congress has unambiguously conferred
an individual right.

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FERPA.8 “Congress enacted FERPA
under its spending power to condition the
receipt of federal funds on certain
requirements relating to the access and
disclosure of student educational
records.” Gonzaga Univ., 536 U.S. at
278. Ultimately, the Court rejected the
viability of plaintiff’s claim because it
concluded that in FERPA Congress had
not “intended to create a federal right.”
Id. at 283 (emphasis in original); see also
id. at 291 (Breyer, J., concurring) (“The
ultimate question, in respect to whether
private individuals may bring a lawsuit to
enforce a federal statute, through 42
U.S.C. § 1983 or otherwise, is a
question of congressional intent.”)
(emphasis added).
Accordingly, we must determine
whether Congress intended to confer the
rights claimed by plaintiffs. Gonzaga
University instructs that congressional
intent is manifest only when statutory
language unambiguously confers such
rights. Id. at 283. To determine what
statutory language is necessary to confer
rights unambiguously, we turn first to the
cases in which the Court addressed
statutory actions brought under § 1983.
We then consider what the Court means
in Gonzaga University when it requires
“rights-creating language.” Id. at 287.
1. Statutory Rights and 42
U.S.C. § 1983
Since Pennhurst, only twice has
the Court recognized a congressional
intent to confer statutory rights
vindicable via § 1983: Wright v. Roanoke
Redevelopment & Housing Authority,
479 U.S. 418 (1987), addressing the
Public Housing Act; and Wilder v.
Virginia Hospital Ass’n, 496 U.S. 498
(1990), addressing Title XIX of the
Social Security Act. The Court has
foreclosed § 1983 suits in two equally
significant cases (in addition to Gonzaga
University): Suter v. Artist M., 503 U.S.
347 (1992), addressing the Adoption
Assistance and Child Welfare Act of
1980; and Blessing v. Freestone, 520
U.S. 329 (1997), addressing Title IV-D
of the Social Security Act.
While in Gonzaga University the
Court “reject[ed] the notion that [its] . . .
cases permit anything short of an
unambiguously conferred right to support
a cause of action brought under § 1983,”
it carefully avoided disturbing, much less
overruling, Wright and Wilder. Gonzaga
Univ., 536 U.S. at 283. Indeed, as the
ensuing analysis will demonstrate, the
Court relied on those cases in crafting
Gonzaga University. Accordingly, we
will assess the rights claimed by
plaintiffs in light of Wright, Wilder,
Suter, and Blessing, as construed by
Gonzaga University.
(a) Wright v. Roanoke
Redevelopment & Housing Authority
In Wright, the Court permitted a §
1983 suit by tenants to recover past
8For the relevant FERPA language, see
note 3, supra.

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overcharges under a rent-ceiling
provision of the Public Housing Act.9 As
explained in Gonzaga University, three
factors motivated the Wright Court to
conclude “that the provision
unambiguously conferred ‘a mandatory
[benefit] focusing on the individual
family and its income.’” Gonzaga Univ.,
536 U.S. at 280 (quoting Wright, 479
U.S. at 430). First, “[t]he key to [the
Court’s] inquiry was that Congress spoke
in terms that ‘could not be clearer.’” Id.
Second, Congress “conferred
entitlements ‘sufficiently specific and
definite to qualify as enforceable rights
under Pennhurst.’” Id. (quoting Wright,
479 U.S. at 432). Third, “the federal
agency charged with administering the
Public Housing Act ‘had never provided
a procedure by which tenants could
complain to it about the alleged failures
[of state welfare agencies] to abide by
[the Act’s rent-ceiling provision].’” Id.
(quoting Wright, 479 U.S. at 426).
(b) Wilder v. Virginia Hospital
Ass’n
In Wilder, the Court permitted a §
1983 action brought by health care
providers to enforce a reimbursement
provision of Title XIX of the Social
Security Act, the same Title at issue
9The Public Housing Act provided in
relevant part:
Dwelling units assisted
under this chapter shall be
rented only to families who
are lower income families
at the time of their initial
occupancy of such units.
Reviews of family income
shall be made at least
annually. A family shall
pay as rent for a dwelling
unit assisted under this
chapter (other than a family
assisted under section
1437f(o) of this title) the
highest of the following
amounts, rounded to the
nearest dollar:
(1) 30 per centum of the
family’s monthly adjusted
income;
(2) 10 per centum of the
family’s monthly income;
or
(3) if the family is
receiving payments for
welfare assistance from a
public agency and a part of
such payments, adjusted in
accordance with the
family’s actual housing
costs, is specifically
designated by such agency
to meet the family's
housing costs, the portion
of such payments which is
so designated.
42 U. S. C. § 1437a (1982 ed. and Supp.
III) (emphasis added).

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here.10 According to Gonzaga University, the Wilder Court was
persuaded because the relevant Medicaid
provisions: (1) “explicitly conferred
specific monetary entitlements upon the
plaintiffs”; (2) “required States to pay an
‘objective’ monetary entitlement to
individual health care providers, with no
sufficient administrative means of
enforcing the requirement against States
that failed to comply”; and (3) because
“Congress left no doubt of its intent for
private enforcement.” Gonzaga Univ.,
536 U.S. at 280-81 (quoting Wilder, 496
U.S. at 522-23).
(c) Suter v. Artist M.
In Suter, the Court foreclosed an
action under § 1983 brought by a class of
parents and children who sought to
enforce provisions of the Adoption
Assistance and Child Welfare Act, which
required that states have a “plan” to
make “reasonable efforts” to keep
children out of foster homes.11
10Title XIX of the Social Security Act
provided in relevant part:
A State plan for medical
assistance must . . . provide
. . . for payment . . . of
hospital services, nursing
facility services, and
services in an intermediate
care facility for the
mentally retarded provided
under the plan through the
use of rates (determined in
accordance with methods
and standards developed by
the State . . .) which the
State funds, and makes
assurances satisfactory to
the Secretary, are
reasonable and adequate to
meet the costs which must
be incurred by efficiently
and economically operated
facilities in order to
provide care and services
in conformity with
applicable State and
Federal laws, regulations,
and quality and safety
standards and to assure that
individuals eligible for
medical assistance have
reasonable access . . . to
inpatient hospital services
of adequate quality.
42 U.S.C. § 1396a(a)(13)(A) (1982 ed.,
Supp. V) (emphasis added).
11In Suter, the Court considered
provisions of the Adoption Assistance
and Child Welfare Act, which provided
in relevant part:
In order for a State to be
eligible for payments under
this part, it shall have a
plan approved by the
Secretary which . . .
provides that the plan shall

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According to Gonzaga University, the
Suter Court recognized that because the
Adoption Act “conferred no specific,
individually enforceable rights, there was
no basis for private enforcement, even by
a class of the statute’s principal
beneficiaries.” Gonzaga Univ., 536 U.S.
at 281 (citing Suter, 503 U.S. at 357).
Writing for the Court in Suter, the Chief
Justice explained:
Careful examination of the
language . . . does not
unambiguously confer an
enforceable right upon the
Act’s beneficiaries. The
term “reasonable efforts”
in this context is at least as
plausibly read to impose
only a rather generalized
duty on the State, to be
enforced not by private
individuals, but by the
Secretary in the manner [of
reducing or eliminating
payments].
Suter, 503 U.S. 363 (quoted approvingly
by Gonzaga Univ., 536 U.S. at 281).
(d) Blessing v. Freestone
In Blessing, the Court rejected the
claim under § 1983 of five mothers
whose children were eligible to receive
child support services from the State of
Arizona pursuant to Title IV-D of the
Social Security Act.12 Title IV-D of the
Social Security Act enumerated various
entitlements.13 Without claiming any
be in effect in all political
subdivisions of the State,
and, if administered by
them, be mandatory upon
them; . . .[and] provides
that, in each case,
reasonable efforts will be
made (A) prior to the
placement of a child in
foster care, to prevent or
eliminate the need for
removal of the child from
his home, and (B) to make
it possible for the child to
return to his home . . . .
42 U. S. C. § 671(a)(3), (15) (1988 ed.
and Supp. I) (emphasis added).
1242 U.S.C. §§ 651-69 (1996) (as
amended by the Personal Responsibility
and Work Opportunity Reconciliation
Act of 1996, Pub. L. 104-193, 110 Stat.
2105 (“PRW OR Act”)).
13See, for example, the following
provision:
A State plan for child and
spousal support must . . .
provide that the State will .
. . provide services relating
to the establishment of
paternity . . . with respect
to . . . each child [who is
eligible] . . . and . . .
enforce any support

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specific rights under Title IV-D, the
plaintiffs asserted that “they had an
enforceable individual right to have the
State’s program achieve ‘substantial
compliance’ with the requirements of
Title IV-D,” as required of the State in
Title IV-A.14 Blessing, 520 U.S. at 333.
In Gonzaga University, the Court
explained the logic of the unanimous
Blessing holding:
Because the provision
focused on “the aggregate
services provided by the
State,” rather than “the
needs of any particular
person,” it conferred no
individual rights and thus
could not be enforced by §
1983. We emphasized: “To
seek redress through §
1983, . . . a plaintiff must
assert the violation of a
federal right, not merely a
violation of federal law.”
Gonzaga Univ., 536 U.S. at 281 (quoting
Blessing, 520 U.S. at 340 (emphasis in
original)). That Blessing garnered
unanimous support is not surprising: it is
an easy case. The plaintiffs never
asserted any individual rights but,
instead, attempted to enforce Congress’s
right to demand “substantial compliance”
with the terms of a conditional grant of
money. To have allowed the action to
proceed would have transformed § 1983
from a vehicle to vindicate personal
rights into a qui tam mechanism.
To evaluate whether Congress had
conferred enforceable individual rights in
a statute, the Blessing Court drew on
Wright, Wilder, and Suter, and
formulated a three-prong test: a statute
must (1) be intended by Congress to
benefit the plaintiff, (2) not be “vague
and amorphous,” and (3) impose an
unambiguous “binding obligation on the
States.” Blessing, 520 U.S. at 340-41.
While in Gonzaga University the Court
obligation established with
respect to [eligible
children] . . . .
42 U.S.C. § 654(4)(A)-(B) (1996) (as
amended by the PRWOR Act) (emphasis
added).
14Title IV-A of the Social Security Act
provided in relevant part:
If a State program . . . is
found . . . not to have
complied substantially with
the requirements of [the
program], and the Secretary
determines that the program
is not complying substantially
with such requirements at the
time the finding is made, the
Secretary shall reduce the
grant payable to the State . . .
.
42 U.S.C. § 609(a)(8) (1996) (as
amended by the PRWOR Act)
(emphasis added).

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11 11
did not abandon this test, it did dispel
[the] confusion [that] has
led some courts to interpret
Blessing as allowing
plaintiffs to enforce a
statute under § 1983 so
long as the plaintiff falls
within the general zone of
interest that the statute is
intended to protect;
something less than what is
required for a statute to
create rights enforceable
directly from the statute
itself under an implied
private right of action.
Gonzaga Univ., 536 U.S. at 283. The
Court clarified and “emphasize[d] that it
is only violations of rights, not laws,
which give rise to § 1983 actions.” Id. at
283 (citing Blessing, 520 U.S. at 340
(emphasis in original)).
Significantly, in Blessing the
Court did not decide that Title IV-D does
not, in fact, confer individual rights.
Rather, the Court concluded that
plaintiffs had failed to assert any specific
rights, instead relying on the general
requirement that Arizona “substantially
comply” with its Child Welfare Plan.
Blessing, 520 U.S. at 345-46 (“We do not
foreclose the possibility that some
provisions of Title IV-D give rise to
individual rights. . . . [But,] it is not at all
apparent that respondents sought any
relief more specific than a declaration
that their ‘rights’ were being violated and
an injunction forcing Arizona’s child
support agency to ‘substantially comply’
with all of the provisions of Title IV-
D.”). Consequently, the Court remanded
the case for a determination of whether
specific provisions of Title IV-D gave
rise to individual rights. Id. at 346.
2. Rights-Creating
Language
To confer rights, Congress must
use “rights-creating language.” Gonzaga
Univ., 536 U.S. at 287. Such language
must clearly impart an “individual
entitlement,” and have an “unmistakable
focus on the benefitted class.” Id.
(quoting Blessing, 520 U.S. at 343, and
Cannon v. University of Chicago, 441
U.S. 677, 690-93 (1979)). Cf. Alexander
v. Sandoval, 532 U.S. 275, 289 (2001)
(“Statutes that focus on the person
regulated rather than the individuals
protected create ‘no implication of an
intent to confer rights on a particular
class of persons’”) (quoting California v.
Sierra Club, 451 U.S. 287, 294 (1981)).
The Chief Justice invoked the
implied private right of action cases to
demonstrate the type of “rights-creating
terms” that unambiguously confer rights.
“[T]he question whether
Congress . . . intended to
create a private right of
action [is] definitively
answered in the negative”
where “a statute by its

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12 12
terms grants no private
rights to any identifiable
class.” Touche Ross & Co.
v. Redington, 442 U.S. 560,
576 (1979)). For a statute
to create such private
rights, its text must be
“phrased in terms of the
persons benefitted.”
Cannon v. University of
Chicago, 441 U.S. 677,
692, n.13 (1979). We have
recognized, for example,
that Title VI of the Civil
Rights Act of 1964[15] and
Title IX of the Education
Amendments of 1972[16]
create individual rights
because those statutes are
phrased “with an
unmistakable focus on the
benefitted class.” Id., at
691 (emphasis added).
Gonzaga Univ., 536 U.S. at 283-84.
As with implied private rights of
action, statutory claims under § 1983
must be premised on an unambiguous
articulation and conferral of rights by
Congress.17 “[W]here the text and
structure of a statute provide no
indication that Congress intends to create
new individual rights, there is no basis
for a private suit, whether under § 1983
or under an implied right of action.” Id.
at 286. With this in mind, the Court
evaluated FERPA. First, and most
importantly, the Court contrasted the
“individually focused” “rights-creating”
language of Title VI and IX (“no person
shall be subjected to discrimination”)18
with FERPA’s general provisions
addressing the Secretary of Education
(“no funds shall be made available” to
15Title 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).
16Title 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).
17The distinction between implied
private rights of action and § 1983
private rights of action rests not in the
articulation of rights, but in the
availability of a remedy. Gonzaga Univ.,
536 U.S. at 285 (“[T]he initial inquiry [in
a private right of action under §
1983]–determining whether a statute
confers any right at all–is no different
from the initial inquiry in an implied
right of action case, the express purpose
of which is to determine whether or not a
statute ‘confers rights on a particular
class of persons.’”) (quoting California
v. Sierra Club, 451 U.S. at 294).
18See n.15 & n.16, supra.

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13 13
any “educational agency or institution”
which has a prohibited “policy or
practice.”).19 Gonzaga Univ., 536 U.S. at
287. The Court noted that “FERPA’s
nondisclosure provisions . . . speak only
in terms of institutional policy and
practice, not individual instances of
disclosure.” Id. at 288. The contrast
between the language of Titles VI and IX
and that of FERPA is stark. The
specific, mandatory, individually focused
language of Titles VI and IX confers
individual rights, while the aggregate,
programmatic focus of FERPA’s
language merely creates law applicable
to the states. The distinction is
dispositive: rights are enforceable under
§ 1983; laws are not. Gonzaga Univ.,
536 U.S. at 283 (citing Blessing, 520
U.S. at 340).
Despite the clarity of the statutory
language, the Court went on to bolster its
analysis by considering the structural
elements of FERPA, which emphasize
the programmatic and aggregate focus of
the statute. Although references to the
individual appear throughout the text of
FERPA, “[i]n each provision the
reference . . . is in the context of
describing the type of ‘policy or practice’
that triggers a funding prohibition.” Id.
Indeed, the fact that Congress “expressly
authorized the Secretary of Education to
‘deal with violations’ . . . and to
‘establish or designate [a] review board’”
buttressed the Court’s assessment that
FERPA did not confer enforceable
rights. Id. at 289 (citing 20 U.S.C. §§
1232g(f)-(g)).20 Finally, the Court
highlighted statutory language
reminiscent of that in Blessing that
counseled against a finding of individual
rights. See id. (“Recipient institutions
can further avoid termination of funding
so long as they ‘comply substantially’ . . .
. This, too, is not unlike Blessing, which
found that Title IV-D failed to support a
§ 1983 suit in part because it only
required ‘substantial compliance’ with
federal regulations.”) (citing Blessing,
520 U.S. 329 at 335, 343).
B. Title XIX – Step Two
Having traced the Court’s
treatment of statutory rights under §
1983, we now turn to the “text and
structure” of Title XIX. Gonzaga Univ.,
536 U.S. at 286.
1. Statutory Text
“We begin with the familiar canon
1920 U.S.C. § 1232g(b)(1).
20Understandably, the Court did not
reach the issue of whether the remedial
scheme in FERPA was sufficient to
preclude a § 1983 suit. Gonzaga Univ.,
536 U.S. at 590 n.8 (“We need not
determine whether FERPA’s procedures
are ‘sufficiently comprehensive’ to offer
an independent basis for precluding
private enforcement due to our finding
that FERPA creates no private right to
enforce.”) (citation omitted).

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14 14
of statutory construction that the starting
point for interpreting a statute is the
language of the statute itself.” Consumer
Product Safety Comm’n v. GTE Sylvania,
Inc., 447 U.S. 102, 108 (1980).
Plaintiffs seek to enforce the right
to acquire ICF/MR services, by virtue of
42 U.S.C. §§ 1396a(a)(10)21 and
1396d(a)(15).22 The language of the
statute requires that a state “must provide
. . . medical assistance . . . to . . . all
[eligible] individuals,” and includes
intermediate care facilities in the
definition of “medical assistance.” 42
U.S.C. §§ 1396a(a)(10) & 1396d(a)(15).
Plaintiffs also seek to enforce the right to
acquire ICF/MR services with
“reasonable promptness,” as required by
42 U.S.C. § 1396a(a)(8).23 The language
of the statute declares that a state “must
provide . . . assistance . . . with
reasonable promptness to all eligible
individuals.” 42 U.S.C. § 1396a(a)(8).
In each of these provisions, the
statutory language is clear and
unambiguous. Indeed, we can hardly
imagine anyone disputing that a state
must provide the assistance necessary to
obtain ICF/MR services, and that it must
do so with “reasonable promptness,” and
the government does not do so. Our
inquiry, however, does not end there.
Indisputably, these provisions create law,
binding on those states choosing to
accept Medicaid funding. Whether the
same provisions confer rights,
enforceable by individuals, is another
question, and is the question we are
called upon to answer.
To determine whether these
provisions provide plaintiffs with
unambiguously conferred rights, we
begin with what has come to be called
the “Blessing Test.” Blessing, 520 U.S.
at 340-41. As discussed above, the plain
language of the statute clearly conveys
that a state “must provide” plaintiffs with
“medical assistance,” including ICF/MR
services, with “reasonable promptness.”
42 U.S.C. §§ 1396a(a)(10),
1396d(a)(15), 1396a(a)(8). Without
difficulty, we conclude that these
provisions satisfy the Blessing Test
because: (1) plaintiffs were the intended
beneficiaries of §§ 1396a(a)(10),
1396d(a)(15), and 1396a(a)(8); (2) the
rights sought to be enforced by them are
specific and enumerated, not “vague and
amorphous”; and (3) the obligation
imposed on the states is unambiguous
and binding. Id.
But, again, our inquiry does not
end there because, as is explained in
Gonzaga University, the Blessing Test
may only indicate that plaintiffs “fall[]
within the general zone of interest that
the statute is intended to protect;
21For the relevant text of Section
1396a(a)(10), see note 5, supra.
22For the relevant text of Section
1396d(a)(15), see note 6, supra.
23For the relevant text of Section
1396a(a)(8), see note 4, supra.

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15 15
something less than what is required for
a statute to create rights enforceable
directly from the statute itself . . . .”
Gonzaga Univ., 536 U.S. at 283. To
ensure that Congress unambiguously
conferred the rights asserted, we must
determine whether Congress used
“rights-creating terms.” Id. at 284.
The Court identified the text of
Titles VI24 and IX25 as exemplars of
rights-creating language. Gonzaga
Univ., 536 U.S. at 287. Viewing Titles
VI and IX, we find it difficult, if not
impossible, as a linguistic matter, to
distinguish the import of the relevant
Title XIX language–“A State plan must
provide”–from the “No person shall”
language of Titles VI and IX. Just as in
Titles VI and IX, the relevant terms used
in Title XIX are “mandatory rather than
precatory.” Blessing, 520 U.S. at 341.
Further, the “individual focus” of
Sections 1396a(a)(10), 1396d(a)(15), and
1396a(a)(8) is unmistakable. Gonzaga
Univ., 536 U.S. at 287. The relevant
Title XIX provisions enumerate the
entitlements available to “all eligible
individuals.” See, e.g., 42 U.S.C. §
1396a(a)(8). The provisions do not focus
on “the [entity] . . . regulated rather than
the individuals protected.” Alexander v.
Sandoval, 532 U.S. at 289. Neither do
the statutory references to the individual
appear “in the context of describing the
type of ‘policy or practice’ that triggers a
funding prohibition.” Gonzaga Univ.,
536 U.S. at 288.
In requiring states which accept
Medicaid funding to provide ICF/MR
services with reasonable promptness,
Congress conferred specific entitlements
on individuals “in terms that ‘could not
be clearer.’” Gonzaga Univ., 536 U.S. at
280 (quoting Wright, 479 U.S. at 430).
There is no ambiguity. Where, as here,
the plain meaning of the text is evident,
we need not look further to determine
congressional intent. See, e.g., Darby v.
Cisneros, 509 U.S. 137, 147 (1993)
(“Recourse to the legislative history . . .
is unnecessary in light of the plain
meaning of the statutory text.”).26
24For the relevant text of Title VI, see
note 15, supra.
25For the relevant text of Title IX, see
note 16, supra.
26We note, however, that plaintiffs
have cited legislative history that may be
construed to support our reading of the
statute. See App. Br. at 20-21 (citing
various congressional legislative
materials for the proposition that Title
XIX authorizes individual suits under §
1983). See, e.g., H.R. Rep. No. 104-651,
at 213-14, 731-32, 2019-20 (1996); H.R.
Rep. No. 104-350, at 211, 270, 288, 1069
(1995); and H.R. Rep. No. 97-158, vol.
II, at 301 (1981). Because we find the
statute unambiguous, however, we do not
base our decision on legislative
materials, or otherwise pass judgment on
their relevance to our inquiry.

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16 16
2. Statutory Structure
“As a general rule of statutory
construction, where the terms of a statute
are unambiguous, judicial inquiry is
complete.” Adams Fruit Co. v. Barrett,
494 U.S. 638, 642 (1990). “General”
rules, however, are susceptible to
exceptions, and we have before us one of
those instances in which our inquiry does
not end with the plain language of the
statute. We recognize, of course, that
“[s]tatutory construction ‘is a holistic
endeavor,’ and, at a minimum, must
account for a statute’s full text, language
as well as punctuation, structure, and
subject matter.” United States Nat’l
Bank v. Independent Ins. Agents of Am.,
508 U.S. 439, 455 (1993) (quoting
United Savings Ass’n of Texas v. Timbers
of Inwood Forest Associates, Ltd., 484
U.S. 365, 371 (1988)). In Gonzaga
University, the Court instructs that not
only should the text of the statute be
examined, but also its structure.
Gonzaga Univ., 536 U.S. at 286. This
instruction makes good sense: we cannot
presume to confer individual rights–that
is a task for Congress. As the Court
aptly put it, we “may play the sorcerer’s
apprentice but not the sorcerer himself.”
Alexander v. Sandoval, 532 U.S. at 291.
Our judicial function is limited to
recognizing those rights which Congress
“unambiguously confers,” and in doing
so we would be remiss if we did not
consider the whole of Congress’s voice
on the matter–the statute in its entirety.
Turning our sights beyond the
narrow provisions invoked by plaintiffs
gives us some pause. Indeed, the District
Court, basing its decision largely on the
structural elements of Title XIX, reached
the opposite conclusion from that we
reach. The District Court in large part
grounded its analysis on 42 U.S.C. §§
1396 and 1396c, and concluded that
those provisions do not contain the
rights-creating language required by
Gonzaga University. Sabree, 245 F.
Supp. 2d at 659. Undoubtedly, the Court
was correct in that regard.
The opening section of Title
XIX–Section 1396–is the appropriations
and general introductory statement of the
Medicaid Act.27 As that Section
27Section 1396 provides:
For the purpose of enabling
each State, as far as
practicable under the
conditions in such State, to
furnish (1) medical
assistance on behalf of
families with dependent
children and of aged, blind,
or disabled individuals,
whose income and
resources are insufficient to
meet the costs of necessary
medical services, and (2)
rehabilitation and other
services to help such
families and individuals
attain or retain capability
(continued...)

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17 17
explains, Title XIX was enacted “[f]or
the purpose of enabling each State . . . to
furnish . . . medical assistance.” 42
U.S.C. § 1396. This language says
nothing of individual entitlements or
rights, but reminds us that we are dealing
with an agreement between Congress and
a particular state, and recalls the axiom
of Pennhurst: “In legislation enacted
pursuant to the spending power, the
typical remedy for state noncompliance
with federally imposed conditions is not
a private cause of action for
noncompliance but rather action by the
Federal Government to terminate funds
to the State.” Pennhurst State Sch. &
Hosp., 451 U.S. at 28.
Turning next, as did the District
Court, to Section 1396(c) does not help
in the search for rights-creating
language. Sabree, 245 F. Supp. 2d at
660. Section 1396c empowers the
Secretary of HHS to suspend payments to
a state if it fails to “comply substantially”
with the requirements of Title XIX.28
27(...continued)
for independence or self-
care, there is hereby
authorized to be
appropriated for each fiscal
year a sum sufficient to
carry out the purposes of
this title. The sums made
available under this section
shall be used for making
payments to States which
have submitted, and had
approved by the Secretary,
State plans for medical
assistance.
42 U.S.C. § 1396.
28Section 1396c provides:
If the Secretary, after
reasonable notice and
opportunity for hearing to
the State agency
administering or
supervising the
administration of the State
plan approved under this
title, finds (1) that the plan
has been so changed that it
no longer complies with
the provisions of section
1902; or (2) that in the
administration of the plan
there is a failure to comply
substantially with any such
provision; the Secretary
shall notify such State
agency that further
payments will not be made
to the State (or, in his
discretion, that payments
will be limited to
categories under or parts of
the State plan not affected
by such failure), until the
Secretary is satisfied that
there will no longer be any
such failure to comply.
Until he is so satisfied he
(continued...)

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18 18
This language not only confirms that
Title XIX by its terms creates a
relationship between Congress and a
particular state, but it recalls, as well, the
“comply substantially” language in
Blessing and Gonzaga University.
Blessing, 520 U.S. at 343; Gonzaga
Univ., 536 U.S. at 289. Of course, in
Blessing and Gonzaga University, such
language counseled against the
recognition of an unambiguously
conferred right.
But while the District Court
correctly recognized that Sections 1396
and 1396c do not contain the “sort of
explicit, rights-creating language found
in Title VI,” it did not consider the
existence of rights-creating language in
other relevant provisions of Title XIX.
Sabree, 245 F. Supp. 2d at 659. The
language used by Congress in 42 U.S.C.
§§ 1396a(a)(10), 1396d(a)(15), and
1396a(a)(8), however, explicitly creates
rights. Admittedly, plumbing for
congressional intent by balancing the
specific language of a few discrete
provisions of Title XIX against the larger
structural elements of the statute is a
difficult task. Nonetheless, it is evident,
at least to us, that the statutory language,
despite countervailing structural
elements of the statute, unambiguously
confers rights which plaintiffs can
enforce.
We conclude that Section 1396,
the appropriations and general
introductory statement, cannot neutralize
the rights-creating language of Sections
1396a(a)(10), 1396d(a)(15), and
1396a(a)(8). Our confidence in this
conclusion rests securely on the fact that
the Court has refrained from overruling
Wright and Wilder, which upheld the
exercise of individual rights under
statutes that contain similar (or, in the
case of Wilder, identical) provisions to
42 U.S.C. § 1396.
Section 1396 was in effect at the
time of Wilder, in which the Court
allowed claims to proceed under Title
XIX, and a similar provision was in
effect when the Court allowed claims to
proceed in Wright. 42 U.S.C. §§ 1396 &
1437. But Gonzaga University did not
overrule Wilder; rather, it explained that
“Congress left no doubt of its intent for
private enforcement.” Gonzaga Univ.,
536 U.S. at 280-81 (quoting Wilder, 496
U.S. at 522-23). Neither did the Court
overrule Wright; rather, it identified it as
an instance in which Congress
“unambiguously conferred ‘a mandatory
[benefit] focusing on the individual
family and its income.’” Gonzaga Univ.,
536 U.S. at 280 (quoting Wright, 479
U.S. at 430).
28(...continued)
shall make no further
payments to such State (or
shall limit payments to
categories under or parts of
the State plan not affected
by such failure).
42 U.S.C. § 1396c (emphasis added).

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19 19
We do not diminish the
significance of the “comply
substantially” language in Section 1396c.
Rather, we recognize that the plaintiffs in
Blessing sued under a provision requiring
“substantial compliance” by a state. The
Court held that the plaintiffs had no such
right in the aggregate, but specifically
reserved decision on whether they might
have individual rights under other
provisions of the statute, and remanded
for a determination of that issue.
Blessing, 520 U.S. at 345-46. This
distinction makes good sense: that
Congress provides a remedy for itself for
non-compliance does not necessarily
preclude a coherent and coexisting intent
to create an enforceable right in
individual beneficiaries. Significantly,
and unlike the plaintiffs in Blessing and
Gonzaga, plaintiffs here have advanced
specific claims, rooted in discrete, rights-
creating provisions of Title XIX.
C. Congressional Preclusion – Step
Three
Even where a right has been
unambiguously conferred, a state may
rebut the presumption of the availability
of § 1983 by demonstrating that
Congress, either expressly or by
providing a comprehensive remedial
scheme, intended to preclude individual
suits. See, e.g., Blessing, 520 U.S. at 346
(“Because petitioner does not claim that
any provision of Title IV-D expressly
curtails § 1983 actions, she must make
the difficult showing that allowing §
1983 actions to go forward in these
circumstances ‘would be inconsistent
with Congress’ carefully tailored
scheme.’”) (quoting Golden State Transit
Corp. v. Los Angeles, 493 U.S. 103, 107
(1989)).
We note, however, that “[t]he
burden to demonstrate that Congress has
expressly withdrawn the remedy is on the
defendant,” and that a court should “not
lightly conclude that Congress intended
to preclude reliance on § 1983 as a
remedy” for deprivation of an
unambiguously conferred right. Golden
State Transit Corp., 493 U.S. at 107
(citations omitted). Indeed, only twice
has the Court found a remedial scheme
sufficiently comprehensive to supplant §
1983. See Middlesex County Sewerage
Auth. v. Nat’l Sea Clammers Ass’n, 453
U.S. 1, 13, 14, 20 (1981) (“Sea
Clammers”) (acknowledging the
“unusually elaborate enforcement
provisions” empowering the E.P.A.,
coupled with several provisions allowing
specific instances of private enforcement
of the Federal Water Pollution Control
Act, and concluding that Congress
intended to preclude individual actions
not explicitly allowed); Smith v.
Robinson, 468 U.S. 992, 1009-11 (1984)
(concluding that because the Education
of the Handicapped Act permitted
aggrieved individuals to invoke carefully
tailored local administrative procedures
followed by federal judicial review,
Congress could not have intended
individuals to bypass the enumerated
procedure and advance directly to court
via § 1983).

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20 20
Title XIX contains no provision
explicitly precluding individual actions.
As a result, there is a substantial burden
on a state seeking to establish that
Congress has provided a comprehensive
remedial scheme with which individual
actions cannot be reconciled. Title XIX
does allow for a state administrative
hearing.29 This is, however, the only
remedial component of Title XIX, and
clearly falls short of the comprehensive
enforcement schemes seen in Sea
Clammers and Smith. “[A] plaintiff’s
ability to invoke § 1983 cannot be
defeated simply by ‘the availability of
administrative mechanisms to protect the
plaintiff’s interests.’” Blessing, 520 U.S.
at 347 (quoting Golden State Transit
Corp., 493 U.S. at 106). See also Wilder,
496 U.S. at 523 (“The availability of
state administrative procedures ordinarily
does not foreclose resort to § 1983.”).
III. CONCLUSION
Plaintiffs have advanced specific
claims rooted in statutory text that
identify them as the intended recipients
of medical assistance from the
Commonwealth of Pennsylvania. That
Congress may choose to sanction
Pennsylvania for failure to comply with
its own medical assistance plan does not
necessarily preclude other repercussions,
such as individual actions against the
Commonwealth. Congress clearly and
unambiguously conferred the rights of
which plaintiffs have allegedly been
deprived by Pennsylvania, and has not
precluded individual enforcement of
those rights. Accordingly, the order of
the District Court will be reversed, and
this case will be remanded for further
proceedings in accordance with this
Opinion.
29Section 1396a(a)(3) provides in
relevant part: “A State plan for medical
assistance must . . . provide for granting
an opportunity for a fair hearing before
the State agency to any individual whose
claim for medical assistance under the
plan is denied or is not acted upon with
reasonable promptness . . . .” 42 U.S.C.
§ 1396a(a)(3).

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21 21
Sabree v. Richman
No. 03-1226
ALITO, Circuit Judge, concurring:
While the analysis and decision of
the District Court may reflect the
direction that future Supreme Court cases
in this area will take, currently binding
precedent supports the decision of the
Court. I therefore concur in the Court’s
decision.

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