Fifth Circuit rejects Equal Access 1983 claims
The Fifth Circuit held that the “Equal Access” provision of the Medicaid Act does not create rights enforceable under 42 U.S.C. § 1983. Equal Access for El Paso, Inc. v. Hawkins, 509 F.3d 697 (5th Cir. Dec. 10, 2007) (No. 06-50599).
This provision, 42 U.S.C. § 1396a(a)(30)(A), requires that states provide adequate methods and procedures, including payment levels, such that Medicaid recipients have access to health care to the same extent as the general population in the geographic area. The panel rejected prior Fifth Circuit precedent in light of the Supreme Court’s decision in Gonzaga Univ. v. Doe, 536 U.S. 273 (2002). This makes five circuits rejecting Equal Access claims under § 1983, with only the Eighth Circuit maintaining its pre-Gonzaga precedent.
The suit was brought by an organization of Texas health care providers, along with individual providers and Medicaid beneficiaries. They alleged that the Texas Health and Human Services Commission (HHSC) set such deficient rates for Medicaid reimbursement and capitation for the El Paso, Texas area – which has a disproportionate concentration of Medicaid recipients – that not enough health care providers were willing to provide Medicaid-covered services in the area. Section 1396a(a)(30)(A) states that:
A State plan for medical assistance must ... provide such methods and procedures relating to the utilization of, and the payment for, care and services available under the plan ... as may be necessary ... to assure that payments ... are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area....
The district court had dismissed the plaintiffs’ other claims under the Medicaid Act and the Equal Protection Clause, preserving only the beneficiary plaintiffs’ claim under the Equal Access Provision. The district and circuit courts confirmed that the beneficiaries had standing to challenge the deficient rates.
A pre-Gonzaga decision of the Fifth Circuit, Evergreen Presbyterian Ministries, Inc. v. Hood, 235 F.3d 908 (5th Cir. 2000), held that the Equal Access provision was enforceable through § 1983 by Medicaid beneficiaries, but not by providers. Gonzaga, however, held that to be enforceable through § 1983 statutory provisions must contain clear “rights-creating language” and have an individual rather than “aggregate” focus.
Since Gonzaga, the First, Sixth, Ninth and Tenth Circuits have held that the Equal Access provision is not enforceable under § 1983. Mandy R. v. Owens, 464 F.3d 1139, 1148 (10th Cir. 2006); Westside Mothers v. Olszewski, 454 F.3d 532, 542-43 (6th Cir. 2006) (summary here); Sanchez v. Johnson, 416 F.3d 1051, 1059-61 (9th Cir. 2005) (summary here); Long Term Care Pharmacy Alliance v. Ferguson, 362 F.3d 50, 57 (1st Cir. 2004). The Eighth Circuit, by contrast, held last year that § 1396a(a)(30)(A) remains enforceable. Pediatric Specialty Care, Inc. v. Ark. Dep't of Human Servs., 443 F.3d 1005, 1014-16 (8th Cir. 2006), vacated on other grounds, Selig v. Pediatric Specialty Care, Inc., 127 S.Ct. 3000 (2007).
The Fifth Circuit panel held that, under Gonzaga, the Equal Access provision does not create rights enforceable under § 1983 because it “does not contain sufficient ‘rights-creating language’” to show Congress’s intent that it be enforceable in court.
Even when read in the context of the entire statute, the Equal Access provision does not create rights for individuals or an identifiable class. It speaks only to the state and the Secretary in their functions of proposing and approving a state plan calculated to [meet the Equal Access requirements]. Thus, like the provisions at issue in Gonzaga and Blessing [v. Freestone, 520 U.S. 329, 340 (1997)], the Equal Access provision speaks only in terms of institutional policy and practice, has an ‘aggregate’ rather than an individualized focus, and is not concerned with whether the needs of any particular person or class of individuals have been satisfied.
In closing, the court stated that it could no longer, “as we did in Evergreen, resolve the ambiguities in [prior Supreme Court precedent] and the Equal Access provision in favor of finding” an enforceable right. Gonzaga, the court said, destroyed “Evergreen’s essential inference that, because Congress's aim in the Medicaid Act was to protect the interests of health care recipients as its primary, ultimate beneficiaries, Congress necessarily meant for recipients to enforce the Equal Access provision in private suits under § 1983.”
The court remanded for dismissal of the suit.