BRIA HEALTH SERVICES, LLC, et al., as authorized representa- tives of Winnie Boykin v. Theresa A. Eagleson

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18‐3076
B
RIA HEALTH SERVICES, LLC, et al., as authorized representa‐
tives of Winnie Boykin, et al.,
Plaintiffs‐Appellants,
v.
THERESA A. EAGLESON, in her official capacity as the Director
of the Illinois Department of Healthcare and Family Services,
et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:17‐cv‐8920 — Charles R. Norgle, Judge.
____________________
ARGUED SEPTEMBER 19, 2019 — DECIDED FEBRUARY 11, 2020
____________________
Before S
YKES, HAMILTON, and BRENNAN, Circuit Judges.
H
AMILTON, Circuit Judge. Plaintiffs are consultants who
provide services to nursing homes and long‐term care facili‐
ties. They say they are bringing this suit on behalf of seriously
ill nursing home residents receiving care under Medicaid. The
residents, however, are not parties to this suit, and it seems

2 No. 18‐3076
unlikely that they would benefit at all if plaintiffs win. By all
appearances, plaintiffs have brought this suit in an effort to
push the State of Illinois and its Medicaid contractors to pay
outstanding bills owed to the consultants’ clients.
Third parties can
bring claims on behalf of others under
some circumstances. Guardians, next friends, and associa‐
tions, for example, can have representative standing. This
case does not involve such established standing doctrines. In‐
stead, plaintiffs rely on a Medicaid regulation. As we read that
regulation, however, it does not permit authorized
represent‐
atives to bring civil lawsuits on behalf of Medicaid beneficiar‐
ies. We affirm the district court’s dismissal for lack of standing
and thus lack of subject matter jurisdiction.
I. Facts and Procedural Background
The Medicaid program—established under Title XIX of
the Social Security Act, 42 U.S.C. §
1396 et seq.—is a coopera‐
tive arrangement in which the federal government gives fi‐
nancial assistance to states to provide medical services to poor
residents. See, e.g., National Federation of Independent Business
v. Sebelius, 567 U.S. 519, 541–42 (2012). To participate in the
program, states must comply with detailed statutory
and reg‐
ulatory requirements. Among these requirements, states 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 reason‐
able promptness to all eligible individuals.” 42 U.S.C.
§ 1396a(a)(8). States must
also ensure that certain medical as‐
sistance is available to all eligible beneficiaries. § 1396a(a)(10).
Illinois administers its Medicaid program through its De‐
partment of Healthcare and Family Services (HFS). At issue

No. 18‐3076 3
here are the State’s managed care programs, in which HFS
contracts with Medicaid managed care organizations (MCOs)
to deliver Medicaid health benefits to beneficiaries. The State
pays the MCOs a flat fee per patient per month, and the MCOs
pay providers for services rendered
to Medicaid beneficiaries.
See generally 305 ILCS 5/5‐30.1.
Plaintiffs in this case are consultants who offer financial
and business services to nursing home and supportive living
facilities in Illinois. They have sued HFS, the HFS director,
and a number of MCOs. Plaintiffs say they are
bringing these
claims on behalf of a class of nursing home residents entitled
to Medicaid benefits. They seek various forms of relief for al‐
leged violations of Title XIX of the Social Security Act; Title II
of the Americans with Disabilities Act, 42 U.S.C. § 12132 et
seq.; the Rehabilitation
Act of 1973, 29 U.S.C. § 794; and the
Due Process and Equal Protection Clauses of the Fourteenth
Amendment to the United States Constitution.
Plaintiffs allege that the MCOs have failed to process
timely payments for claims submitted by the nursing
homes—the plaintiff‐consultants’ clients—to the MCOs. This,
the consultants argue, constitutes a failure to provide the
medical assistance required by 42 U.S.C. § 1396a(a)(10).
1
Be‐
cause the nursing homes have not been paid for services ren‐
dered, the consultants say, the resident‐beneficiaries are at
risk of being discharged from the facilities. This jeopardizes
the resident‐beneficiaries’ health, safety, and well‐being, and

1
The statutory definitions of some Medicaid terms differ from their
everyday meanings. “Medical assistance” is defined by statute as “pay‐
ment of part or all of the cost of [covered] care and services or the care and
services themselves, or both.” 42 U.S.C. § 1396d(a).

4 No. 18‐3076
causes mental anguish. The consultants’ claims under the
ADA, the Rehabilitation Act, and the Constitution are all
based on the same alleged denial of benefits.
The plaintiff‐consultants say that they have been author‐
ized to bring these claims by Medicaid beneficiaries residing
in their
clients’ nursing homes. Each resident has allegedly
filled out a form designating a consultant as authorized rep‐
resentative, authorizing “action as necessary to establish [] el‐
igibility for Medicaid,” agreeing that legal proceedings
brought in regard to Medicaid eligibility may be brought in
the name of the resident or in
that of the facility, and waiving
“potential or actual conflicts of interest.”
2

The district court dismissed the case under Federal Rule
of Civil Procedure 12(b)(1) for lack of subject matter jurisdic‐
tion. It determined that the regulation cited by plaintiffs does
not permit authorized representatives to bring civil lawsuits
on behalf of Medicaid beneficiaries so that the consultant‐
plaintiff
s lacked standing.
II. Analysis
We review de novo a district court’s dismissal for lack of
standing when standing is not challenged on factual grounds.
Remijas v. Neiman Marcus Group, LLC, 794 F.3d 688, 691 (7th
Cir. 2015). We “accept as true all material allegations of the
complaint, drawing all
reasonable inferences therefrom in the
plaintiff’s favor unless standing is challenged as a factual

2
The complaint does not allege that the residents completed authori‐
zation forms, but plaintiffs state in their briefing that all plaintiffs have
signed forms conferring the same authority as the “Designation of Au‐
thorized Representative” form in the plaintiffs’ appendix. We proceed as
if this were alleged in the complaint.

No. 18‐3076 5
matter.” Id., quoting Reid L. v. Illinois State Bd. of Education, 358
F.3d 511, 515 (7th Cir. 2004). The plaintiffs bear the burden of
establishing standing. Id.
Article III of the Constitution limits the power of federal
courts to deciding “cases” and “controversies.” To
meet this
constitutional requirement, a plaintiff must establish that she
has standing. She must allege and prove (1) a concrete and
particularized injury, (2) caused by the actions of the defend‐
ant, (3) that would likely be redressed by a favorable decision.
Lujan v. Defenders of Wildlife, 504 U.S. 555,
560–61 (1992).
The consultant‐plaintiffs do not claim to have standing
themselves. Instead, they say they are invoking the rights of
the residents of the facilities whose Medicaid reimbursements
are allegedly being withheld. Plaintiffs argue that because
they have been granted authorization pursuant to regulation
to sue on
behalf of the residents—and because the residents
themselves have standing—they may invoke the residents’
standing. This adds a second component to the standing in‐
quiry. In addition to establishing that the residents have
standing under Article III, plaintiffs must also show that they
are entitled to invoke the residents’ standing.

A. Scope of the Medicaid Regulation
Plaintiffs identify 42 C.F.R. § 435.923, promulgated by the
Secretary of Health and Human Services pursuant to 42
U.S.C. § 1302(a), as the source of their authority to sue on be‐
half of the residents. Here are the key provisions of § 435.923:
(a)(1) The agency must permit applicants and
beneficiaries to designate an individual or or‐
ganization to act responsibly on their behalf in
assisting with the individual’s application and

6 No. 18‐3076
renewal of eligibility and other ongoing com‐
munications with the agency. ...
(b) Applicants and beneficiaries may authorize
their representatives to—
(1) Sign an application on the applicant’s be‐
half;
(2) Complete and submit a renewal form;
(3) Receive copies of the applicant or benefi‐
ciary’s notices and other communications
from the agency;
(4) Act on behalf of the applicant or benefi‐
ciary in all other matters with the agency.
The regulation thus requires state Medicaid agencies to al‐
low Medicaid participants to designate representatives to act
on their behalf and describes the scope
of possible represen‐
tation. The regulation describes the scope of representation
using three specific provisions and one general provision. The
general provision in (b)(4) describes the scope of representa‐
tion in superficially broad terms, allowing representatives to
“Act on behalf of the applicant or beneficiary in all other
mat‐
ters with the agency.”
Plaintiffs argue that the general provision allows benefi‐
ciaries to authorize representatives to sue HFS and the MCOs.
The key phrase here is “matters with the agency.” Plaintiffs
say that phrase reaches anything having to do with the agency,
including civil litigation.

The same basic rules that apply to statutory interpretation
apply to regulatory interpretation. Exelon Generation Co. v. Lo‐
cal 15, International Brotherhood of Electrical Workers, AFL‐CIO,

No. 18‐3076 7
676 F.3d 566, 570 (7th Cir. 2012); see generally Kisor v. Wilkie,
139 S. Ct. 2400, 2414–18 (2019). We ask first “whether the lan‐
guage at issue has a plain and unambiguous meaning with
regard to the particular dispute in the case.” Exelon Generation,
676
F.3d at 570, quoting Ioffe v. Skokie Motor Sales, Inc., 414 F.3d
708, 710 (7th Cir. 2005). This inquiry looks to the entire text of
the regulation, its purpose and context, and precedents or au‐
thorities that can inform the analysis. See River Road Hotel
Partners, LLC v. Amalgamated
Bank, 651 F.3d 642, 649 (7th Cir.
2011). If the language is ambiguous, we may consult the rule‐
making record. Exelon Generation, 676 F.3d at 570.
In this case, the text of the regulation, the broader regula‐
tory context and purpose, and the comments during rulemak‐
ing all indicate that
“matters with the agency” relate only to
communication and document processing in interactions with
the agency and do not reach civil litigation against it.
First, the general provision in (b)(4) should be read in light
of the preceding specific elements in the list to encompass
only those interactions
with the agency akin to submitting ap‐
plications, renewing eligibility, and receiving agency commu‐
nications. A general provision following a list of specific pro‐
visions should be interpreted considering those other provi‐
sions. Hall St. Associates, L.L.C. v. Mattel, Inc., 552 U.S. 576, 586
(2008) (canon of
ejusdem generis teaches that “when a statute
sets out a series of specific items ending with a general term,
that general term is confined to covering subjects comparable
to the specifics it follows”). Here, “other matters with the
agency” most naturally encompasses only document pro‐
cessing and
communication with the agency.
Second, the agency‐facing character of the regulation sup‐
ports this interpretation. The regulation requires agencies to

8 No. 18‐3076
permit Medicaid participants to authorize representatives to
“assist[] with the individual’s application and renewal of eli‐
gibility and other ongoing communications with the agency.”
42 C.F.R. § 435.923(a)(1). This agency requirement and the ap‐
plicant/beneficiary right of authorization are two sides of the
same coin. The
agency must allow a certain kind of authori‐
zation, and beneficiaries may exercise the corresponding right
of authorization. The possible scope of authorization that ben‐
eficiaries may give should be read as equivalent to the scope
of representative activities that agencies are required to ac‐
cept, encompassing only
“the individual’s application and re‐
newal of eligibility and other ongoing communications.” Id.
(emphasis added).
Third, the purpose provision for the relevant Part of the
Medicaid regulations and the broader regulatory context con‐
firm that the scope of authorization is limited to agency‐ap‐
plicant communications and does not
reach civil lawsuits. See
Schlaf v. Safeguard Property, LLC, 899 F.3d 459, 465 (7th Cir.
2018) (observing that “We must interpret the plain language
of the statute in light of its placement in the overall text of the
statute” and looking to enacted statement of purpose); see
also Jarrod Shobe,
Enacted Legislative Findings and Purposes, 86
U. Chi. L. Rev. 669, 712–15 (2019) (describing value of enacted
statements of purpose in determining meaning of other stat‐
utory provisions). The applicable purpose provision, 42
C.F.R. § 435.2, says that the Part sets forth eligibility require‐
ments for state Medicaid programs and
establishes “require‐
ments and procedures that the Medicaid agency must use in
determining and redetermining eligibility, and requirements
it may not use.” Id. § 435.2(c). In line with this stated purpose,
the surrounding regulations in the subpart all pertain to
agency policies and procedures. See 42 C.F.R. §§ 435.900–

No. 18‐3076 9
435.965. The regulation allowing authorized representatives
to deal with the agency is best understood congruent with this
purpose as setting out the procedures that the Medicaid
agency must itself use when determining the eligibility of an
applicant.
Read in context, the regulation limits the scope of
permis‐
sible representation to communication with the agency re‐
garding eligibility and like matters. The responses of the De‐
partment of Health and Human Services to comments in the
rulemaking process further indicate that the regulation is lim‐
ited to communication with the agency, without any indica‐
tion that
it would extend to litigation against it. In issuing the
final version of the rule, the Department wrote that it “pro‐
posed to define the term ‘authorized representative’ as an in‐
dividual or organization that acts responsibly on behalf of an
applicant or beneficiary in assisting with the
individualʹs ap‐
plication and renewal of eligibility and other ongoing com‐
munications with the Medicaid or CHIP agency.” 78 Fed. Reg.
42174 (July 15, 2013). The Department clarified that the regu‐
lations were “intended to be consistent with current state pol‐
icy and practice, regarding the definition, designation,
and re‐
sponsibilities of ‘authorized representatives.’” Id. Plaintiffs do
not suggest that authorized representatives have ever sued on
behalf of Medicaid beneficiaries as plaintiffs seek to do here,
and we have no reason to believe otherwise.
The regulation in question—and even the authorization
agreement presented by the
plaintiffs—extends only to eligi‐
bility applications and determinations. These are not at issue
in this case. According to the complaint, the residents have all
been approved to receive Medicaid benefits. So even if the

10 No. 18‐3076
authorization were permitted by the regulation, it would not
allow for this suit.
B. Regulations and Representative Standing
We must offer one cautionary clarification to our analysis.
Because the regulation does not authorize plaintiffs to bring
civil claims on behalf of others, we
do not need to decide
whether a regulation can ever confer by itself the right to
bring a claim on behalf of another and to invoke that person’s
Article III standing. Our reliance on interpretation of the Med‐
icaid regulation should not be taken as an implied endorse‐
ment of
plaintiffs’ novel standing theory derived solely from
a regulation.
The general rule is that plaintiffs must allege their own in‐
juries to establish standing. See Hollingsworth v. Perry, 570 U.S.
693, 710 (2013) (“mere authorization to represent a third
party’s interests” will not confer standing to a party
with no
injuries of her own). Well‐established exceptions to this rule
allow a plaintiff to bring a claim on behalf of another. Guard‐
ians have standing when they sue on behalf of minors. E.g.,
Sherman v. Community Consolidated School District 21 of Wheel‐
ing Township, 980 F.2d 437, 441
(7th Cir. 1992); see also Fed. R.
Civ. P. 17(a) (allowing guardians and similar representatives
to bring claims on behalf of others). A “next friend” may have
standing to bring a habeas corpus petition if she has a “signif‐
icant relationship” with the real party in interest and the real
party
in interest is somehow disabled. See Whitmore v. Arkan‐
sas, 495 U.S. 149, 162 (1990). A similar next‐friend doctrine al‐
lows third parties to sue on behalf of minors and incompetent
persons. See Fed. R. Civ. P. 17(c). An association can also have
standing to sue on behalf of
its members. United Food & Com‐
mercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S.

No. 18‐3076 11
544, 546 (1996). And in Hollingsworth v. Perry, the Supreme
Court suggested that an agency relationship combined with
authorization by the principal could establish representative
standing. 570 U.S. at 713–14.
3

An uninjured plaintiff suing on behalf of another is nor‐
mally required to identify one of these existing doctrines—
most of which have deep common‐law roots and all of which
are limited in scope to ensure that the dispute is actually an
Article III “case” or “controversy”—to establish representa‐
tive
standing. Plaintiffs do not have representative standing
on any of these grounds. Their entire theory of the case as‐
sumes that a regulation can suffice, but they provide no sup‐
port for that position. We need not reach that broader asser‐
tion, however, because even if in theory a regulation could
confer representative standing on the mere basis of authori‐
zation, plaintiffs would not prevail under this regulation.

3
This issue is distinct from that of third‐party standing. The third‐
party standing doctrine applies only when a plaintiff has suffered an in‐
jury in fact. The plaintiff must herself have Article III standing, and must
meet an extra condition to invoke the rights of a non‐party in
seeking re‐
dress for that injury. See, e.g., Craig v. Boren, 429 U.S. 190, 194–96 (1976);
see also 13A Charles Alan Wright & Arthur R. Miller, Federal Practice &
Procedure § 3531.9.3 (3d ed. 2019). Cf. Lexmark International, Inc. v. Static
Control Components, Inc., 572 U.S. 118, 127 & n.3
(2014) (reframing “pru‐
dential standing” doctrine as constitutional or statutory but observing that
“limitations on third‐party standing are harder to classify [than zone‐of‐
interests analysis] .... [C]onsideration of that doctrine’s proper place in the
standing firmament can await another day.”). The problem of third‐party
standing is different
from the one here. In this case, plaintiffs have not
suffered an injury and cannot themselves establish Article III standing. In‐
stead, they are suing on behalf of others.

12 No. 18‐3076
C. Underlying Standing of the Residents
The underlying standing of the residents—which plain‐
tiffs’ standing relies upon—is also disputed. Because plain‐
tiffs’ standing is derivative of the residents’ standing, they
must show that the residents have suffered an injury or that
one is imminent.
A plaintiff may establish Article III standing
by showing that harm is “certainly impending,” but it is not
enough to allege “possible future injury.” Remijas v. Neiman
Marcus Group, LLC, 794 F.3d 688, 692 (7th Cir. 2015), quoting
Clapper v. Amnesty International USA, 568 U.S. 398, 409 (2013).
Plaintiff
s allege that the residents are at risk of being dis‐
charged from the long‐term care facilities where they are re‐
ceiving nursing services and medical care. But plaintiffs con‐
ceded at oral argument that residents were not threatened
with discharge and are presently receiving medical care. Dis‐
charging
residents because of nonpayment to their care‐giv‐
ers would, in fact, violate federal law. See 42 C.F.R.
§ 483.15(c)(1)(E) (permitting discharge of a resident for non‐
payment only where resident has not submitted paperwork
for third‐party payment or where Medicaid denies the claim
and the resident
refuses to pay). Suing state officials on the
theory that one’s clients may or will soon violate federal law
is not a promising theory.
We are hesitant to resolve this case based on the residents’
standing because they have not, by all appearances, been in‐
volved in the litigation. We
have no reason to believe that their
interests are being represented. Because the regulation does
not give plaintiffs the right to sue on behalf of the residents,
we need not reach this broader issue either.
* * *

No. 18‐3076 13
None of this means, of course, that third parties may not
bring claims on behalf of Medicaid beneficiaries. If a state
does not comply with its Medicaid obligations and vulnerable
populations do not receive timely notice of eligibility deter‐
minations or do not receive services, they
may be entitled to
remedies in court. Given the severe medical conditions that
many of these people face, it may be difficult for them to assert
their own rights. But there are established processes for bring‐
ing claims on behalf of others that—unlike the system read
into the regulation
by the consultants—contain safeguards
and ensure that the interests of vulnerable individuals are
represented. If a beneficiary lacks capacity, a guardian or next
friend may sue on her behalf. These consultant‐plaintiffs,
however, do not have standing.
The judgment of the district court is
AFFIRMED.