This is the second time that this case has been before the Sixth Circuit on an appeal of the district court's dismissal.  In 2002, the Sixth Circuit had reversed the district court's dismissal of the plaintiffs' Medicaid claims.  Westside Mothers v. Havemen, 289 F.3d 852 (6th Cir. 2002) (Westside I). Those claims were a failure to deliver services with reasonable promptness (42 U.S.C. 1396a(a)(8)), violation of the entitlement to services (1396a(a)(10)), violation of the "equal access" provision governing rates(1396a(a)(30)) and the requirement to provide Early and Periodic Screening, Diagnosis and Treatment (EPSDT) (1396a(a)(43)).

After the decision in Westside Mothers I, and the Supreme Court's decision in Gonzaga University v. Doe, 536 U.S. 273 (2002), which clarified the test for determining whether a statute confers a right enforceable through Section 1983, the defendants moved again to dismiss the claims as unenforceable.  The district court found that 1396a(a)(30)(A) was not enforceable, but that the other claims were. 
However, he found that the plaintiffs had failed to state a claim for violations of 1396a(a)(8) and 1396a(a)(10), because those provisions
only guaranteed payment for services - not the services themselves.   It also dismissed the 1396a(a)(43) claim, holding that defendants were not required to "effectively" inform potentially eligible children about EPSDT services.  Westside Mothers v. Olszewski, 368 F. Supp. 2d 740 (E.D. Mich. 2005).  The plaintiffs appealed, which led to this decision.

The Sixth Circuit affirmed the dismissal of the 1396a(a)(8), 1396a(a)(10) and 1396a(a)(30) claims.  It reversed the dismissal of the
1396a(a)(43) claim.

The court did not explicitly affirm the district court's conclusion that 1396a(a)(8) and 1396a(a)(10) were enforceable.  But, it analyzed them as if it had decided that they were.  It affirmed the district court's conclusion that these sections mandate only that individuals shall have the right to apply for medical assistance (i.e. payment for services) and that this payment will be provided "to the individual" with reasonable promptness.  But, the court held that the plaintiffs could show that the payments were so inadequate that it frustrated plaintiffs' rights to receive medical assistance at all.  Accordingly, it reversed the dismissal to one without prejudice and remanded to allow amendment of the complaint.

Finally, in a bright spot, the court reversed the dismissal of the EPSDT claimand holding that the statute through its implmenting regulation, 42 C.F.R. 441.56, requires effective informing.

This article was written by Sarah Somers, National Health Law Program