Westside Mothers v. Haveman, 133 F.Supp.2d 549 (2001) 73 Soc.Sec.Rep.Serv. 137

133 F.Supp.2d 549 United States District Court,
E.D. Michigan, Southern Division.
WESTSIDE MOTHERS, et al., Plaintiffs, v.
James K. HAVEMAN, et al., Defendants.
No. 99–CV–73442–DT. |
March 26, 2001.
Synopsis Organizational plaintiffs brought action against State officials under § 1983, seeking injunctive relief and the appointment of a special master to end the State’s alleged systemic deprivation of early and periodic screening, diagnosis, and treatment (EPSDT) services under its Medicaid program. Defendants moved for dismissal or, alternatively, for summary judgment. The District Court, Cleland, J., held that: (1) suit could not be brought against state officials under Ex parte Young to enforce Medicaid requirements concerning provision of EPSDT services to economically disadvantaged children, and (2) section 1983 did not provide private cause of action against state or state officers for breach of Medicaid requirements concerning provision of EPSDT services.
Motion to dismiss granted.
Procedural Posture(s): Motion to Dismiss; Motion for Summary Judgment.
Attorneys and Law Firms
*552 Marilyn T. Mullane, Susan McParland Nash, Michigan Legal Services, Detroit, MI, Jennifer Clarke, Jacob Kobrick, Michael Doluisio, Robin Sumner, Dechert, Price & Rhoads, Thomas Gilhool, Philadelphia, PA, Lourdes Rivera, Jane Perkins, National Health Law Program, Los Angeles, CA, for Plaintiffs.
Erica W. Marsden, Michigan Dept. of Atty. Gen., Social Services Div., Lansing, MI, for Defendant.
Jeffrey S. Sutton, Jones, Day Reavis & Pogue, Columbus, OH, Howard C. Nielson, Jr., Jones, Day, Reavis & Pogue, Washington, DC, for Movant.
1

OPINION AND ORDER DENYING PLAINTIFFS’ MOTION TO CERTIFY CLASS, AND GRANTING
DEFENDANTS’ MOTION TO DISMISS
CLELAND, District Judge.
I. Introduction
In this case, Plaintiffs’ stated goal is to ensure that economically disadvantaged children throughout the State of Michigan obtain adequate medical care. The court can safely say that the endeavor is commendable. Having a virtuous goal in sight, however, does not endow a court with the power to hear a case, nor create a cause of action where none exists. In this case, neither jurisdiction nor a cause of action obtains.
Plaintiffs seek injunctive relief and the appointment of a special master to end the State of Michigan’s (“Michigan” or “the State”) alleged systemic deprivation of Early and Periodic Screening, Diagnosis, and Treatment Services (“EPSDT services”), which is part of the State’s Medicaid or “Medical Assistance” program. The named plaintiffs are two organizations,1 Families on the Move and Westside Mothers, and eight putative class representatives.2 The named defendants are two State officials purportedly responsible for administering Michigan’s EPSDT services; however, because the State of Michigan is the entity actually responsible for providing the contested EPSDT services, the court will refer to Michigan as the defendant. Plaintiffs bring their case under 42 U.S.C. § 1983, claiming that Michigan has failed to provide EPSDT services mandated by 42 U.S.C. § 1396, et seq., to the class of all Michigan children eligible for those services.
On November 9, 1999, Michigan moved for dismissal or, alternatively, for summary judgment, which both parties

Westside Mothers v. Haveman, 133 F.Supp.2d 549 (2001)
73 Soc.Sec.Rep.Serv. 137
then addressed in written briefs. On December 21, 1999, the court sua sponte ordered the parties to further address in briefing certain threshold issues not raised in the initial round of briefing pertaining to the nature of the relationship between the federal government and the State under the Medicaid program, the plaintiffs’ standing under § 1983 to bring suit against Michigan, and whether Michigan was legally amenable to suit. A second round of briefing ensued. Finding the State’s discussion of these issues to be less than fully satisfactory, the court invited and accepted the participation of the Michigan Municipal League (“the League”) as amicus curiae to address the issues raised by the court.3 *553 Based upon the League’s participation, a third round of briefing occurred, culminating in a hearing on August 14, 2000. At the hearing, Michigan adopted all of the League’s arguments as its own, and the court will treat them as such in this order.
Given the length and complexity of the matters considered, a summary of the Court’s opinion is in order. Plaintiffs’ suit raises, in essence, two threshold issues that must be addressed before the court may consider the merits of their claims. First, does the court have jurisdiction over this suit, which is directed in substance at the State of Michigan, an entity that is ordinarily immune from suit? Second, even if such jurisdiction exists, is there a cause of action permitting plaintiffs to sue in the State or its officers in order to enforce the rights asserted? The court’s review of these questions indicates that both are to be answered in the negative. The court’s analysis is organized as follows:
Part II of this opinion provides an overview of the Medicaid EPSDT program at issue in this litigation. Part III explains the constitutional dimension of the Federal government’s and Michigan’s relationship under the Medicaid program, and why that relationship is necessarily contractual under the Constitution’s Spending Clause. In Part IV, the court explains that it lacks jurisdiction over this case because Michigan is the real defendants, and therefore possesses sovereign immunity against suit. Plaintiffs’ attempt to circumvent that immunity under the Ex parte Young by suing Michigan’s officers fails for at least four different reasons, each of which is separately explained. Even assuming that Ex parte Young was applicable to the instant case, Part V explains that § 1983 does not create a cause of action to sue states or their officers under Spending Power programs, and that the statute also does not operate as an independent means by which sovereign immunity may be overcome if Ex parte Young is unavailable. Three distinct
2

reasons concerning the interpretation of § 1983 foreclose its use as envisioned by plaintiffs, and each is discussed in Part V. Plaintiffs’ assertions that the court’s analyses are foreclosed by prior jurisprudence concerning Spending Clause programs are addressed in Part VI; a handful of other issues are discussed in Part VII; and the court’s conclusion is found in Part VIII.
II. Background
The Supreme Court has described the Medicaid program at issue in this litigation:
[It] was created in 1965, when Congress added Title XIX to the Social Security Act, 79 Stat. 343, as amended, 42 U.S.C. § 1396 et seq. (1976 ed. and Supp. II) for the purpose of providing federal financial assistance to States that choose to reimburse certain costs of medical treatment for needy persons. Although participation in the Medicaid program is entirely optional, once a State elects to participate, it must comply with the requirements of Title XIX.
Harris v. McRae, 448 U.S. 297, 301, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980). In other words, a State may either “comply[ ] with the conditions set forth in the Act or forego[ ] the benefits of federal funding.” Pennhurst State Sch. and Hosp. v. Halderman, 451 U.S. 1, 11, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981) (internal citations omitted) (“Pennhurst I ”).
The Act creates a “cooperative federal-state program” entitled “Grants to States for Medical Assistance Programs” to provide statutorily-authorized health care services to economically disadvantaged individuals. See 42 U.S.C. § 1396 et seq.; Wilder v. Virginia Hospital Ass’n, 496 U.S. 498, 502, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990). If a State elects to participate in the Medicaid program, it must submit to the Secretary of Health and

Westside Mothers v. Haveman, 133 F.Supp.2d 549 (2001) 73 Soc.Sec.Rep.Serv. 137
Human Services (“HHS”) a state plan describing the scope of its medical assistance program, which will be administered by the State itself. See 42 U.S.C. § 1396a(b). Upon approval of the plan, *554 the Secretary allocates financial grants to help defray its cost. See 42 U.S.C. § 1396b; Harris, 448 U.S. at 308, 100 S.Ct. 2671. Michigan is authorized to participate in the Medicaid program pursuant to §§ 105–112e of the Michigan Social Welfare Act, M.C.L. §§ 400.105–400.112e. As previously mentioned, once a State agrees to participate in the Medicaid program, the requirements of Title XIX and the regulations promulgated thereunder become mandatory and binding upon the state. See Wilder, 496 U.S. at 502, 110 S.Ct. 2510; Boatman v. Hammons, 164 F.3d 286, 288 (6th Cir.1998) (citing 42 C.F.R. § 430.10 and Harris, 448 U.S. at 301, 100 S.Ct. 2671).
A State’s plan must provide “assurance that [it] will be administered in conformity with the specific requirements of Title XIX, the regulations [promulgated thereunder] and other applicable official issuances of [HHS].” 42 C.F.R. § 430.10. Michigan’s “State Plan Under Title XIX of the Social Security Act,” includes such assurances of conformity. From time to time, Michigan submits plan amendments to the Secretary, as described at 42 C.F.R. § 430.12(c), to reflect changes in law or in the State’s operation of its Medicaid program.
The Secretary retains the authority to monitor each participating State’s performance, and to terminate or limit payments to the state if the Secretary finds less than substantial compliance with any plan provision:
[T]he 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 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).
3

42 U.S.C. § 1396c. The parties to the instant case agree that withholding funds from noncompliant states is the exclusive means by which the federal government may enforce the terms of the program, and that the federal government may not compel compliance through litigation.4 Furthermore, the Medicaid statute contains no provision permitting Medicaid-eligible beneficiaries to bring suit against noncompliant states. There are, however, procedures that grant hearings to individuals who believe that they have been wrongfully denied care. To this end, every Medicaid provider in Michigan must incorporate an internal administrative grievance procedure as a condition of its contract with the State. Moreover, Michigan also maintains an administrative hearing mechanism by which Medicaid-eligible individuals can complain to a county department of social welfare about the quality or level of care provided. See M.C.L. §§ 400.37, 400.9. Those administrative decisions may be appealed to the county circuit court. See M.C.L. §§ 400.37.
Turning to the actual services provided, a State’s agreement to participate in the Medicaid program obligates it to provide medical assistance to eligible individuals by paying for part or all of the costs of certain statutorily-enumerated medical services. See 42 U.S.C. §§ 1396, 1396d(a). The enumerated services for which the State must pay include EPSDT services, see 42 U.S.C. § 1396d(a)(4)(B), which are further defined at 42 U.S.C. § 1396d(r).
Plaintiffs’ detailed, five-count complaint asserts that Michigan has failed, and continues to fail, to meet its mandatory EPSDT obligations under the Medicaid program, as set forth by statute, regulations, and HHS directives. To sum up plaintiffs’ complaints, they allege that Michigan has failed to ensure that Medicaid-eligible *555 children in the State receive (1) EPSDT screening services required by 42 U.S.C. §§ 1396a(a)(43) and 1396d(r)(1)(A) and (B), 42 C.F.R. § 441.57, and various HHS policy directives; (2) EPSDT treatment services required by 42 U.S.C. § 1396d(r)(5) and 42 C.F.R. pt. 441; (3) basic child health care outreach and information required by 42 U.S.C. § 1396a(a)(43), 42 C.F.R. § 441.56, and various HHS policy directives; (4) assistance in scheduling EPSDT services5 as required by 42 U.S.C. § 1396a(a)(43)(b) and 42 C.F.R. § 441.62(b). Plaintiffs also allege that Michigan has (5) failed to secure capacity to deliver the EPSDT services required by Title XIX as mandated by 42 U.S.C. §§ 1396a(a)(8), 1396a(a)(30)(A) and 1396u–2(b)(5). Because the Medicaid statute itself does not contain a private cause of action, plaintiffs bring

Westside Mothers v. Haveman, 133 F.Supp.2d 549 (2001) 73 Soc.Sec.Rep.Serv. 137
their complaint under 42 U.S.C. § 1983, alleging that the Michigan state officers purportedly responsible for implementing the State’s Medicaid program have acted and continue to act under color of state law to deprive plaintiffs of their clearly established rights under the federal Medicaid program.
III. The Nature of the Relationship Between Michigan and the Federal Government Under the Medicaid Program
It is a bedrock of constitutional law that the federal government is one of limited and enumerated powers. The Tenth Amendment enshrines this principle, and the Amendment itself reiterates that which is already obvious from the Constitution’s structure: “If a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States; if a power is an attribute of state sovereignty reserved by the Tenth Amendment, it is necessarily a power the Constitution has not conferred on Congress.” New York v. United States, 505 U.S. 144, 156, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992) (internal citations omitted). In fact,
the Tenth Amendment “states but a truism that all is retained which has not been surrendered.” As Justice Story put it, “this amendment is a mere affirmation of what, upon any just reasoning, is a necessary rule of interpreting the constitution. Being an instrument of limited and enumerated powers, it follows irresistibly, that what is not conferred, is withheld, and belongs to the state authorities.” This has been the [Supreme] Court’s consistent understanding: “The states unquestionably do retain a significant measure of sovereign authority ... to the extent that the Constitution has not divested them of their original powers and transferred those powers to the Federal Government.”
Id. (internal citations and punctuation omitted).
No constitutional provisions exist that permit the federal government to require States or their officers to become instruments of federal policy.6 See Printz v. United States, 521 U.S. 898, 935, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997). “While Congress has substantial powers to govern the Nation directly, including in areas of intimate concern to the States, the Constitution has never been understood
4

to confer upon Congress the ability to require the States to govern according to Congress’ instructions.” New York, 505 U.S. at 162, 112 S.Ct. 2408 (internal citation omitted). As the Printz Court explained:
The Framers’ experience under the Articles of Confederation had persuaded *556 them that using the States as instruments of federal governance was both ineffectual and provocative of federal-state conflict. Preservation of the States as independent political entities being the price of union, and “the practicality of making laws, with coercive sanctions, for the States as political bodies” having been, in Madison’s words, “exploded on all hands,” the Framers rejected the concept of a central government that would act upon and through the States, and instead designed a system in which the State and Federal Governments would exercise concurrent authority over the people—who were, in Hamilton’s words, “the only proper objects of government.” We have set forth the historical record in more detail elsewhere, and need not repeat it here. It suffices to repeat the conclusion: “the Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States.” The great innovation of this design was that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other—a legal system unprecedented in form and design, establishing two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it. The Constitution thus contemplates that a State’s government will represent and remain accountable to its own citizens. As Madison expressed it: “The local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their own spheres, to the general authority than the general authority is subject to them, within its own sphere.” Printz, 521 U.S. at 919–21, 117 S.Ct. 2365 (internal citations and punctuation omitted). Accordingly, while Congress can enact programs pursuant to its constitutionally enumerated powers and enforce them through federal officers, it cannot require the States to legislate pursuant to its directions, nor order the States to implement a solution to a congressionally-denoted problem. See Printz, 521 U.S. at 926, 117 S.Ct. 2365 (citing New York, 505 U.S. at 175–76, 188, 112 S.Ct. 2408). Nor can Congress achieve its otherwise legitimate aims by altogether ignoring State legislatures and dragooning State officers into becoming

Westside Mothers v. Haveman, 133 F.Supp.2d 549 (2001)
73 Soc.Sec.Rep.Serv. 137
federal program administrators. See Printz, 521 U.S. at 928, 117 S.Ct. 2365. However, Congress can, as it has done with the Social Security retirement program, create a federal program implemented through federal officers that directly regulates individual behavior. But it cannot impress the States, either directly or though their officers, into the service of a federal program.7 Neither party to this case contests these basic propositions.
Of course, the foregoing strictures do not prevent Congress from acting to influence the States’ behavior by means short of outright coercion. One such means, which is indisputably at the core of this litigation, is Congress’ ability to use its spending power as an incentive “by which [it] may urge a State to adopt a legislative program consistent with federal interests.” New York, 505 U.S. at 166, 112 S.Ct. 2408. As the Supreme Court has explained:
The Constitution empowers Congress to “lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” Art. I, § 8, cl. 1. Incident to this power, Congress may attach conditions on the receipt of federal funds, and has repeatedly employed the power to further broad policy objectives by conditioning receipt of federal moneys upon compliance by *557 the recipient with federal statutory and administrative directives.
South Dakota v. Dole, 483 U.S. 203, 206, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987) (internal citations and quotations omitted). In discussing the contours of Congress’ authority to legislate pursuant to the spending power, the Court has
[l]ong recognized that Congress may fix the terms on which it shall distribute federal money to the States. Unlike legislation enacted under § 5 [of the Fourteenth Amendment], however, legislation enacted pursuant to the spending power is much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions. The legitimacy of Congress’ power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts
5

the terms of the “contract.” There can, of course, be no knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of it. Accordingly, if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously. By insisting that Congress speak with a clear voice, we enable the States to exercise their choice knowingly, cognizant of the consequences of their participation.
Pennhurst I, 451 U.S. at 17, 101 S.Ct. 1531 (internal citations omitted). The Medicaid program at issue in this litigation is assuredly just such a contract. See, e.g., Pennhurst I, 451 U.S. at 12–15, 101 S.Ct. 1531.
While Congress possesses no power to order the Michigan legislature or Michigan officials to participate in the Medicaid program, it has offered financial incentives for them to do so. In return for federal funds, Michigan has agreed to adhere to the requirements set forth in federal statutes, regulations, and HHS directives. Justice Scalia’s concurrence on this topic in Blessing v. Freestone, 520 U.S. 329, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997) is illustrative of the legal relationships created under the Medicaid program. There, he explained that federal-state spending power programs are “much in the nature of a contract” because:
The State promises to provide certain services to private individuals, in exchange for which the Federal Government promises to give the State funds. In contract law, when such an arrangement is made (A promises to pay B money, in exchange for which B promises to provides services to C), the person who receives the benefit of the exchange of promises between the two others (C) is called a third party beneficiary.

Westside Mothers v. Haveman, 133 F.Supp.2d 549 (2001)
73 Soc.Sec.Rep.Serv. 137
Blessing, 520 U.S. at 349, 117 S.Ct. 1353 (Scalia, J. concurring). In short, the Medicaid program is a contract between Michigan and the Federal Government, and Medicaid recipients are third-party beneficiaries of that contract. However, as the previous excerpt from Pennhurst I makes clear, all contract requirements must be unambiguous, and Michigan must have accepted them knowingly and voluntarily if there is to be any legally-cognizable expectation that it abide by them.
Plaintiffs ardently object to the characterization of the Medicaid federal-state cooperative agreement as a “contract.” They note, correctly, that Pennhurst I and its progeny refer to programs enacted pursuant to the spending power as being “in the nature of the contract.” The Court’s use of such qualified language instead of outrightly referring to such programs as “contracts”, they suggest, makes the term merely metaphorical. Plaintiffs posit that:
[T]he Court is employing the poetic devices of analogy and simile to emphasize that, as in contract law, the statute must be clear as to what it requires and that participation by the State is voluntary. See Pennhurst, 451 U.S. at 17, 101 S.Ct. 1531 (“by insisting that Congress speak with a clear voice, we enable the States to exercise their choice knowingly, cognizant *558 of the consequences of their participation”).
(Pl. Feb. 7, 2000 Br. at 6.) That such programs are “in the nature of a contract,” they argue, suggests that the Medicaid program is much in the nature of “something else” as well. According to plaintiffs, that “something else” is that the statute in question is a “law,” not a mere contract.
But plaintiffs’ theory begs the question. No one disputes that the Medicaid program is authorized by federal statute. All laws enacted by Congress, however, are not of equal force. As previously explained, had Congress chosen to impose the Medicaid program directly on the citizenry as it did with the Social Security retirement program, participants could be compelled by law to conform with its strictures. But no such compulsion is available to the federal government when it chooses to act through the States. The participation of each sovereign is purely voluntary; indeed, as plaintiffs point out through their reliance on Pennhurst I, the agreement consists of no more than what the State unambiguously agrees to do. Were the arrangement binding “law” (the connotation presumably being the exercise of federal sovereign power under the Supremacy Clause), and not a contract, there
6

would be no need for the State’s participation to be knowingly voluntary.
Because the State’s participation in the Medicaid program is consensual and not compelled by the Constitution, it is contractual in nature. The significant variation from an ordinary contract results from the sovereign status of the parties, which limits the remedies each has against the other. Under ordinary contract law, if the parties to the contract were individuals, A could sue B for specific performance under some circumstances. Under the program at issue in this litigation, both parties agree that the federal government lacks any such power to sue Michigan for specific performance because the Medicaid statute does not provide that remedy. In other words, because the contract is between sovereigns and not individuals, the “contractual nature” of the relationship is more, not less, truncated that it would be in a purely private contract. Recognizing that it is the nature of the participants to this contract that forecloses the availability of certain remedies, the court must examine the Medicaid contract between the Federal Government and Michigan according to its overt terms to determine whether its third-party beneficiaries may sue Michigan for nonperformance.8
In all events, it is clear beyond cavil that for the judiciary to enforce against Michigan a federal program requirement that does not meet the Pennhurst I/South Dakota criteria would be to do that which the Constitution forbids: namely, conscript a State in furtherance of a federal policy without its consent, on the basis of a constitutionally unenumerated (and therefore nonexistent) congressional power. Congress may not force States into being its agents; Congress may offer incentives for the States to do so long as the requirements of the State’s participation are expressly set out. Derivative of the foregoing proposition, and of utmost importance for purposes of this litigation, is the notion that “ ‘the mere receipt of federal funds cannot establish that a State has consented to suit in federal court.’ ” Seminole Tribe, 517 U.S. at 59, 116 S.Ct. 1114 (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 246–47, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985)). Recognizing these constitutional constraints, two crucial questions are posed: First, does the Medicaid *559 program operate to waive Michigan’s sovereign immunity as a matter of constitutional law? This issue will be addressed in Part IV. Second, did Congress unambiguously condition its Medicaid funding contract with Michigan upon the State’s consenting to be sued by Medicaid beneficiaries? This issue will be addressed in Part V.

Westside Mothers v. Haveman, 133 F.Supp.2d 549 (2001) 73 Soc.Sec.Rep.Serv. 137
IV. Whether Michigan and/or its Officers Retain Sovereign Immunity From Suit by Private Parties The Eleventh Amendment to the United States Constitution states:

First, Congress may authorize such

a suit in the exercise of its power to

enforce

the

Fourteenth

Amendment—an Amendment

enacted after the Eleventh

Amendment and specifically

designed to alter the federal-state

balance. Second, a State may waive

its sovereign immunity by

consenting to suit.

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
The Eleventh Amendment is understood “to stand not so much for what it says, but for the presupposition which it confirms.” Kimel v. Florida Bd. Of Regents, 528 U.S. 62, 120 S.Ct. 631, 640, 145 L.Ed.2d 522 (2000) (internal citations and punctuation omitted). Put simply, that presupposition is that “the Constitution does not provide for federal jurisdiction over suits against nonconsenting States.” Id. (internal citations omitted). “Even when the Constitution vests in Congress complete lawmaking authority over a particular area, the Eleventh Amendment prevents congressional authorization of suits by private parties against unconsenting States.” Id. at 643 (internal citations and quotations omitted). In particular, this absence of congressional power applies to the exercise of its enumerated powers under Article I, which means that Congress possesses no authority under Article I “to subject States to suit at the hands of private individuals.” Id. at 644. Because the Medicaid program at issue in the instant suit is an exercise of Congress’ Article I spending power, Congress may not unilaterally subject Michigan to suit by virtue of the State’s participation in the program. In other words, participation alone does not connote consent to suit.
However, Michigan’s sovereign immunity from suit is not absolute. The Supreme Court has recognized two circumstances in which an individual may sue a State:
7

College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 119 S.Ct. 2219, 2223, 144 L.Ed.2d 605 (1999) (internal citations omitted). In this case, neither party asserts that Fourteenth Amendment abrogation is implicated.9
Whether Michigan has consented to suit is a more complicated question. As explained *560 in Part III, supra, mere receipt of federal funds alone does not effectuate a waiver, and waiver of sovereign immunity pursuant to the Federal–State Medicaid contract occurs only if that condition is expressly stated as a contractual term. Michigan asserts that it has not waived its immunity here; but plaintiffs posit that Michigan’s acquiescence is irrelevant because plaintiffs sue not the State, but its officers, under the doctrine of Ex parte Young.
The Young doctrine permits prospective injunctive relief against state officials in certain circumstances, even when the State itself is immune from suit. See Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). As the Supreme Court explained, the doctrine applies in instances where:
[a]n official claims to be acting under the authority of the state. The act to be enforced is unconstitutional; and if it be so, the use of the name of the state to enforce an unconstitutional act to the injury of complainants is a proceeding without the authority of, and one which does not affect, the state in its sovereign or governmental capacity. It is simply an illegal act upon the part of the state official in attempting, by the use of the name of the state, to

Westside Mothers v. Haveman, 133 F.Supp.2d 549 (2001) 73 Soc.Sec.Rep.Serv. 137
enforce a legislative enactment which is void because unconstitutional. If the act which the state [official] seeks to enforce be a violation of the Federal Constitution, the officer, in proceeding under such enactment, comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The state has no power to impart to him any immunity from responsibility to the supreme authority of the United States.
Id. at 159–60, 28 S.Ct. 441. Although Young itself concerned an alleged constitutional violation, the doctrine ordinarily also extends to violations of federal statutory law. See, e.g., Idaho v. Coeur d’Alene Tribe, 521 U.S. 261, 281, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997).
The Young exception to State sovereign immunity is a “legal fiction” “adopted as necessary to permit the federal courts to vindicate federal rights and hold state officials responsible to ‘the supreme authority of the United States.’ ” Pennhurst State Sch. and Hosp. v. Halderman, 465 U.S. 89, 102–03, 105, 114 n. 25, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) ( “Pennhurst II ”) (citing Young, 209 U.S. at 160, 28 S.Ct. 441). As the Court explained in Green v. Mansour, 474 U.S. 64, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985):
[T]he availability of prospective relief of the sort awarded in Ex parte Young gives life to the Supremacy Clause. Remedies designed to end a continuing violation of federal law are necessary to vindicate the federal interest in assuring the supremacy of that law.
Green, 474 U.S. at 68, 106 S.Ct. 423 (internal citations
8

omitted).
In other words, a state officer ostensibly acting under state law that contravenes the Constitution—or congressional enactments that are the supreme law of the land by dint of the Constitution’s Supremacy Clause—acts with no lawful authority at all. Where federal law is supreme, the states are powerless to authorize their officials to act in defiance of it. However, the Young doctrine is limited in its scope of available relief, and at most may permit a federal court to grant prospective injunctive relief against State officers who are violating supreme federal law. See Pennhurst II, 465 U.S. at 102–104, 104 S.Ct. 900 (internal citations omitted). Accordingly, the doctrine is available only where plaintiffs can demonstrate not only that a state official is violating federal law, but that the law in question is the supreme law of the land.
In the instant case, the Ex parte Young doctrine is inapplicable for at least *561 four reasons, which will be discussed hereafter.
A. Spending Power Programs are Not the Supreme Law of the Land.
The instant case falls outside the ambit of the Ex parte Young doctrine because the doctrine does not apply to congressional enactments under the Spending Power. As described in Part III, supra, such programs are contracts consensually entered into by the States with the Federal Government, and not statutory enactments by which States must automatically submit to federal prerogatives. To be sure, the Supreme Court has in the past held that federal-state cooperative programs enacted under the Spending Power fall within the ambit of the Supremacy Clause. See, e.g., Blum v. Bacon, 457 U.S. 132, 138, 145–46, 102 S.Ct. 2355, 72 L.Ed.2d 728 (1982); Carleson v. Remillard, 406 U.S. 598, 600, 92 S.Ct. 1932, 32 L.Ed.2d 352 (1972); Townsend v. Swank, 404 U.S. 282, 285–86, 92 S.Ct. 502, 30 L.Ed.2d 448 (1971). In those cases, the Court asserted, without analysis, that the Supremacy Clause amounted to carte blanch authority for Congress to invalidate state laws, regardless of the source of the congressional power.
In more recent years, however, the Supreme Court has

Westside Mothers v. Haveman, 133 F.Supp.2d 549 (2001)
73 Soc.Sec.Rep.Serv. 137
conducted a more searching analysis of the nature and extent of the Supremacy Clause.10 In Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999), the Court analyzed the scope of the Supremacy Clause, and held that:
As is evident from its text ... the Supremacy Clause enshrines as “the supreme Law of the Land” only those federal Acts that comport with the constitutional design. Appeal to the Supremacy Clause alone merely raises the question whether a law is a valid exercise of the national power. See The Federalist No. 33, at 204 (A. Hamilton) (“But it will not follow from this doctrine that acts of the larger society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land”). Id. at 2254 (internal citations omitted). As the Court earlier noted in Printz, a reliance on the Supremacy Clause as the source of federal authority “merely brings us back to the question” of whether Congress has the enumerated authority in the first instance to enact that which is asserted to be supreme. Printz, 521 U.S. at 924–25, 117 S.Ct. 2365. Put another way, federal law cannot be supreme in an area in which Congress lacks an enumerated power to legislate. See also Gregory, 501 U.S. at 460, 111 S.Ct. 2395 (“As long as it is acting within the powers granted to it by the Constitution, Congress may impose its will on the States [under the Supremacy Clause].”) (emphasis added). As discussed in Part III, supra, the enumerated power under which Congress acted when it created the Medicaid statute is the Spending Power. Congress has no power to compel the States to participate in voluntary federal programs like Medicaid. If a State chooses to participate in the program, it certainly must comply with program requirements in order to continue to receive the allotted federal funds, “[b]ut the authority to require compliance with participation standards is derived not from the primacy of federal law enacted pursuant to an enumerated power but from the terms of a contract and the agreement to abide by those terms in return for the receipt of federal moneys.” Brogdon v. National Healthcare Corp., 103 F.Supp.2d 1322, 1339 (N.D.Ga.2000) (citing Pennhurst I, 451 U.S. at 17, 101 S.Ct. 1531). *562 The Supremacy Clause does not operate upon a State or its officers when Congress enacts a program such as Medicaid pursuant to the Spending Power because neither the Spending Power nor any other Article I power grants Congress the authority to compel State action. The relationship between
9

the Federal and State governments in Spending Power programs is merely one of mutual acquiescence. That Congress may (either directly or through delegation to the HHS Secretary) pass Medicaid laws that are inconsistent with state laws pertaining to the same subject does not render those state statutes void; the Federal government must rely on its power of the purse to seek State compliance with Federal program objectives. See, e.g., Brogdon, 103 F.Supp.2d at 1339 (noting that congressional enactments under the Spending Power do not preempt State law) (citing United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 1754, 146 L.Ed.2d 658 (2000)).
Spending Power enactments do not constitute the “supreme authority of the United States,” a point made clear by the Court’s holdings in Alden, Printz, New York, South Dakota, and Pennhurst I. By way of example, if Michigan chose not to participate in the Medicaid program, but instead ran a similar program using its own funds under its own guidelines, Michigan’s guidelines would not be preempted by the competing federal Medicaid program, because a State’s participation in Medicaid is entirely volitional. The situation is identical here because the Constitution grants the Federal Government no power of compulsion under the Spending Clause; Michigan and the Federal government are on equal constitutional footing, and neither has any power to compel the other. The Court has adopted the view espoused by Chief Justice Burger in Townsend, which is that Spending Power enactments are “in no way mandatory upon the States under the Supremacy Clause;” States may either comply with the federal requirements, or forego the benefit of the bargain. Townsend, 404 U.S. at 292, 92 S.Ct. 502 (Burger, C.J., concurring) (internal citation omitted). For this court to hold otherwise would be to do that which Hamilton warned against in Federalist 33, namely, to invade Michigan’s residual authority by enforcing as the supreme law of the land federal legislation that the Constitution does not make supreme. Because congressional enactments pursuant to the Spending Power that set forth the terms of federal-state cooperative agreements depend on the voluntary agreement of participating States and are not within the ambit of the Supremacy Clause, they are not the supreme law of the land, and suits cannot be brought against state officials under Ex parte Young to enforce those requirements.

Westside Mothers v. Haveman, 133 F.Supp.2d 549 (2001)
73 Soc.Sec.Rep.Serv. 137
B. The State is the Real Party in Interest When Its Officers Act Within Their Lawful Authority.
By virtue of the Young doctrine, sovereign immunity does not bar all suits against state officers. However, “[s]ome suits against state officers are barred by the rule that sovereign immunity is not limited to suits which name the State as a party if the suits are, in fact, against the State.” Alden, 119 S.Ct. at 2267 (citing In re Ayers, 123 U.S. 443, 505–06, 8 S.Ct. 164, 31 L.Ed. 216 (1887); Idaho, 521 U.S. at 270, 117 S.Ct. 2028 (explaining that “[t]he real interests served by the Eleventh Amendment are not to be sacrificed to elementary mechanics of captions and pleadings.”)). Construing Young as permitting suit against state officials for all alleged State violations of federal law would render the doctrine of sovereign immunity meaningless. See Idaho, 521 U.S. at 269, 117 S.Ct. 2028. As the Idaho Court observed:
When suit is commenced against state officials, even if they are named and served as individuals, the State itself will have a continuing interest in the litigation whenever state policies or procedures are at stake. This commonsense *563 observation of the State’s real interest when its officers are named as individuals has not escaped notice or comment from the Court, either before or after Young. See, e.g., Osborn v. Bank of United States, 9 Wheat. 738, 846–47, 6 L.Ed. 204 (1824) (stating that the State’s interest in the suit was so “direct” that “perhaps no decree ought to have been announced in the cause, until the State was before the court”) (Marshall, C.J.); Pennhurst II, 465 U.S. at 114 n. 25, 104 S.Ct. 900 (noting that Young rests on a fictional distinction between the official and the State) [.] ... Indeed, the suit in Young, which sought to enjoin the state attorney general from enforcing state law, implicated substantial state interests. 209 U.S. at 174, 28 S.Ct. 441 (“[T]he manifest, indeed the avowed and admitted, object of seeking [the requested] relief [is] to tie the hands of the State”) (Harlan, J., dissenting). We agree with those observations.
To interpret Young to permit a federal-court action to proceed in every case where prospective declaratory and injunctive relief is sought against an officer, named in his individual capacity, would be to undermine the principle, reaffirmed just last Term in Seminole Tribe, that Eleventh Amendment immunity represents a real limitation on a federal court’s federal question jurisdiction.... Application of the Young exception must reflect a proper understanding of its role in our federal system and respect for state courts instead of a
10

reflexive reliance on an obvious fiction. See, e.g. Pennhurst II, supra, at 102–03, 114 n. 25, 104 S.Ct. 900 (explaining that the limitation in Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), of Young to prospective injunctive relief represented a refusal to apply the fiction in every conceivable circumstance).
Idaho, 521 U.S. at 269–270, 117 S.Ct. 2028.
The instant plaintiffs correctly note that Ex parte Young suits have been brought repeatedly over at least the past thirty years against state officers for alleged non-compliance with federal-state programs enacted pursuant to the Spending Power. Indeed, the Court’s opinion in Young permitting some kinds of suits against state officials relied extensively upon its prior opinion in In re Ayers, which extensively discussed the circumstances under which state officers could or could not be sued. See, generally, Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (citing Ayers, 123 U.S. 443, 8 S.Ct. 164, 31 L.Ed. 216).
Rather than merely paraphrasing the Court’s analysis in Ayers to discuss the suitability of such suits, the court believes it more beneficial to quote directly, though at some length, the Ayers decision. First:
It must be regarded as the settled doctrine of this court, established by its recent decisions, “that the question whether a suit is within the prohibition of the Eleventh Amendment is not always determined by reference to the nominal parties on the record.” Poindexter v. Greenhow, 114 U.S. 270, 287, 5 S.Ct. 903, 29 L.Ed. 185 (1885).
Ayers, 123 U.S. at 487, 8 S.Ct. 164. Noting at the outset that this assertion appeared to be in disharmony with Chief Justice Marshall’s opinion in Osborn v. Bank, 9 Wheat. 738, 857, 6 L.Ed. 204 (1824), in which the Chief Justice wrote that the party named in the pleadings was controlling for purposes of sovereign immunity analysis, the Ayers Court quoted Marshall’s opinion further, which stated that:
“The state not being a party on the record, and the court having jurisdiction over those who are parties on the record, the true question is not one of jurisdiction, but whether, in the exercise of its

Westside Mothers v. Haveman, 133 F.Supp.2d 549 (2001) 73 Soc.Sec.Rep.Serv. 137
jurisdiction, the court ought to make a decree against the defendants,—whether they are to be considered as having a real interest, or as being only nominal parties.”
*564 Ayers, 123 U.S. at 488, 8 S.Ct. 164 (quoting Osborn, 9 Wheat. at 858, 6 L.Ed. 204). In light of Chief Justice Marshall’s caveat, the Ayers Court held Osborn to mean that:
[w]here the defendants, who are sued as officers of the state, have not a real, but merely a nominal, interest in the controversy, the state appearing to be the real defendant, and therefore an indispensable party, if the jurisdiction does not fail for want of power over the parties, it does fail as to the nominal defendants, for want of a suitable subject-matter.
Ayers, 123 U.S. at 488, 8 S.Ct. 164. Writing for the Court in Governor of Georgia v. Madrazo, 1 Pet. 110, 7 L.Ed. 73 (1828), a post-Osborn case, Chief Justice Marshall appeared to adopt the interpretation Ayers was to later make of his Osborn opinion. Relying on Osborn, the Madrazo Court held that:

Ayers, 123 U.S. at 489, 8 S.Ct. 164 (quoting Madrazo, 1 Pet. at 123–24, 7 L.Ed. 73). The Ayers Court continued its analysis:
It was therefore held, [in Madrazo ], that the state was in fact, though not in form, a party defendant to the suit, and that, consequently, the circuit court had no jurisdiction to pronounce the decree appealed from [.] ... Accordingly, in Cunningham v. Railway Co., 109 U.S. 446, 3 S.Ct. 292, 27 L.Ed. 992 (1883), it was decided that in those cases where it is clearly seen upon the record that the state is an indispensable party to enable the court, according to the rules which govern its procedure, to grant the relief sought, it will refuse to take jurisdiction. The inference is that where it is manifest, upon the face of the record, that the defendants have no individual interest in the controversy, and that the relief sought against them is only in their official capacity as representatives of the state, which alone is to be affected by the judgment or decree, the question then arising, whether the suit is not substantially a suit against the state, is one of jurisdiction.

“[w]here the chief magistrate of a state is sued, not by his name, but by his style of office, and the claim made upon him is entirely in his official character, we think the state itself may be considered a party on the record. If the state is not a party, there is no party against whom a decree can be brought. No person in his natural capacity is brought before the court as defendant.”
11

Ayers, 123 U.S. at 489, 8 S.Ct. 164. The Ayers Court went on to analyze the import of its post-Madrazo decision in Hagood v. Southern, 117 U.S. 52, 6 S.Ct. 608, 29 L.Ed. 805 (1886):
[In Hagood,] the state of South Carolina, which was the party in interest, was not nominally a defendant. The nominal defendants were the treasurer of the state of South Carolina, its comptroller general, and the treasurers of its various counties and their successors in office. The object of the bills was to obtain on behalf of the complainants, by judicial process, the redemption by the state of certain scrip of which they were holders, according to the terms of a statute in pursuance of which it was issued, by the levy, collection, and

Westside Mothers v. Haveman, 133 F.Supp.2d 549 (2001)
73 Soc.Sec.Rep.Serv. 137
appropriation of a special tax pledged to that purpose, as they claimed, by an irrepealable law constituting a contract protected from violation by the Constitution of the United States. The decrees of the circuit court granting the relief were reversed, and the case remanded, with instructions to dismiss the bills, on the ground that the suits, though nominally against the officers of the state, were really against the state itself. In its opinion this court said, “These suits are accurately described as bills for the specific performance of a contract between the complainants and the state of South Carolina, who are the only parties to it. But to these bills the state is not in name made a party defendant, though leave is given to it to become such if it chooses; and except with that consent it could not be brought before the court, and be made to appear and defend. *565 And yet it is the actual party to the alleged contract, the performance of which is decreed, the one required to perform the decree, and the only party by whom it can be performed. Though not nominally a party to the record, it is the real and only party in interest, the nominal defendants being the officers and agents of the state, having no personal interest in the subject matter of the suit, and defending only as representing the state. And the things required by the decrees to be done and performed by them are the very things which, when done and performed, constitute a performance of the alleged contract by the state. The state is not only the real party to the controversy, but the real party against which relief is sought by the suit, and the suit is therefore substantially within the prohibition of the Eleventh Amendment to the Constitution of the United States.” Hagood, 117 U.S. at 67, 6 S.Ct. 608.
The conclusions in the case of Hagood v. Southern were justified by what had previously been decided by this court in the cases of Louisiana v. Jumel and Elliott v. Wiltz, 107 U.S. 711, 2 S.Ct. 128, 27 L.Ed. 448 (1882)[ (which were decided in one opinion) ]. Those cases had for their object, one, by injunction, to restrain the officers of the state from executing the provisions of the act of the general assembly alleged to be in violation of the contract rights of the plaintiffs, and the other, by mandamus, to require the appropriation of money from the treasury of the state in accordance with the contract. This relief, it was decided, was not within the competency of the judicial power. The Chief Justice said, on that point, “The remedy sought, in order to be complete, would require the court to assume all of the executive authority of the state, so far as it was related to the enforcement of this law, and to supervise the
12

conduct of all persons charged with any official duty in respect to the levy, collection, and disbursement of the tax in question until the bonds, principal and interest, were paid in full; and that, too, in a proceeding in which the state, as a state, was not and could not be made a party. It needs no argument to show that the political power cannot be thus ousted of its jurisdiction, and the judiciary set in its place. When a state submits itself, without reservation, to the jurisdiction of the court in a particular case, that jurisdiction may be used to give full effect to what the state has, by its act of submission, allowed to be done; and if the law permits the coercion of the public officers to enforce any judgment that may be rendered, then such coercion may be employed for that purpose. But this is very far from authorizing the court, when a state cannot be sued, to set up its jurisdiction over the officers in charge of the public moneys, so as to control them as against the political power, in their administration of the finances of the state.” Louisiana, 107 U.S. at 727, 2 S.Ct. 128.
Ayers, 123 U.S. at 490–92, 8 S.Ct. 164. In short, the Ayers Court held that plaintiffs could not circumvent a State’s sovereign immunity from suit by naming as defendants the officers charged with carrying out the State’s alleged delinquent responsibilities. Elaborating further, and using the analysis later relied upon in Ex Parte Young, the Court delineated the circumstances under which state officers might be sued:
[The Ayers plaintiffs who are suing Virginia officers for the state’s alleged contractual breach do not] allege any grounds of equitable relief against the individual defendants for any personal wrong committed or threatened by them. It does not charge against them in their individual character anything done or threatened which constitutes, in contemplation of law, a violation of personal or property rights, or a breach of contract to which they are parties. The relief sought is against the defendants, not in their individual but in their representative *566 capacity, as officers of the state of Virginia. The acts sought to be restrained are the bringing of suits by the state of Virginia in its own name, and for its own use. If the state had been made a defendant to this bill by name, charged according to the allegations it now contains,—supposing that such a suit could be maintained,—it would have been subjected to the jurisdiction of the court by process served upon its governor and attorney general, according to the precedents in such cases. If a decree could have been rendered enjoining the state from bringing suits against

Westside Mothers v. Haveman, 133 F.Supp.2d 549 (2001)
73 Soc.Sec.Rep.Serv. 137
its taxpayers, it would have operated upon the state only through the officers who by law were required to represent it in bringing such suits, viz., the present defendants, its attorney general, and the commonwealth’s attorneys for the several counties. For a breach of such an injunction, these officers would be amenable to the court as proceeding in contempt of its authority, and would be liable to punishment therefor by attachment and imprisonment.
The nature of the case, as supposed, is identical with that of the case as actually presented in the bill with the single exception that the state is not named as a defendant. How else can the state be forbidden by judicial process to bring actions in its name, except by constraining the conduct of its officers, its attorneys, and its agents? And if all such officers, attorneys, and agents are personally subjected to the process of the court, so as to forbid their acting in its behalf, how can it be said that the state itself is not subjected to the jurisdiction of the court as an actual and real defendant?
It is, however, insisted upon in argument that it is within the jurisdiction of the circuit court of the United States to restrain by injunction officers of the states from executing the provisions of state statutes void by reason of repugnancy to the Constitution of the United States; that there are many precedents in which that jurisdiction has been exercised under the sanction of this court; and that the present case is covered by their authority.
Ayers, 123 U.S. at 497–98, 8 S.Ct. 164 (internal citations omitted). But the precedents referred to, in which the Court permitted state officers to be sued were:
[a]djudged not to be a suit against the state, and not to be one in which the state was a necessary party, [and the rationale permitting suit] was that the defendants personally and individually were wrong-doers, against whom the complainants had a clear right of action for the recovery of the property taken, or its value, and that, therefore, it was a case in which no other parties were necessary. The right asserted and the relief asked were against the defendants as individuals. They sought to protect themselves against personal liability by their official character as representatives of the state. This they were not permitted to do, because the authority under which they professed to act was void.
. . . . .
13

The vital principle in all such cases is that the defendants, though professing to act as officers of the state, are threatening a violation of the personal or property rights of the complainant, for which they are personally and individually liable[.] ... “A defendant sued as a wrong-doer, who seeks to substitute the state in his place, or to justify by the authority of the state, or to defend on the ground that the state has adopted his act and exonerated him, cannot rest on the bare assertion of his defense. He is bound to establish it. The state is a political corporate body, can only act through its agents, and can command only by laws. It is necessary, therefore, for such a defendant, in order to complete his defense, to produce a law of the state which constitutes his commission as its agent and a warrant for his act [.]” *567 ... The legislation under which the defendant justified, being declared to be null and void, as contrary to the Constitution of the United States, therefore left him defenseless, subject to answer to the consequences of his personal act .. [.]
Ayers, 123 U.S. at 500–01, 8 S.Ct. 164 quoting Poindexter v. Greenhow, 114 U.S. at 288, 5 S.Ct. 903. A state officer can claim to be acting as the agent of the State only where such authority has been conferred by law. See Ayers, 123 U.S. at 501, 8 S.Ct. 164 (citing United States v. Lee, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171 (1882)). The Ayers Court went on to explain that the question of whether a state officer possesses lawful authority is a feature that:
[w]ill be found, on an examination, to characterize every case where persons have been made defendants for acts done or threatened by them as officers of the government, either of a state or of the United States, where the objection has been interposed that the state was the real defendant, and has been overruled. The action has been sustained only in those instances where the act complained of, considered apart from the official authority alleged as its justification, and as the personal act of the individual defendant, constituted a violation of right for which the plaintiff was entitled to a remedy at law or in equity against the

Westside Mothers v. Haveman, 133 F.Supp.2d 549 (2001) 73 Soc.Sec.Rep.Serv. 137
wrong-doer in his individual character.
Ayers, 123 U.S. at 501–02, 8 S.Ct. 164. Utilizing the analysis to later be relied upon in Young, the Court explicated the circumstances under which Eleventh Amendment sovereign immunity poses no bar to suits against state officers acting under color of authority for violations of federal rights:
The government of the United States, in the enforcement of its laws, deals with all persons within its territorial jurisdiction as individuals owing obedience to its authority. The penalties of disobedience may be visited upon them without regard to the character in which they assume to act, or the nature of the exemption they may plead in justification. Nothing can be interposed between the individual and the obligation he owes to the Constitution and laws of the United States, which can shield or defend him from their just authority, and the extent and limits of that authority the government of the United States, by means of its judicial power, interprets and applies for itself. If therefore, an individual, acting under the assumed authority of a state, as one of its officers, and under color of its laws, comes into conflict with the superior authority of a valid law of the United States, he is stripped of his representative character, and subjected in his person to the consequences of his individual conduct. The state has no power to impart to him any immunity from responsibility to the supreme authority of the United States.
Ayers, 123 U.S. at 507, 8 S.Ct. 164.
14

Reiterating its analyses under the facts presented by Ayers, see id. at 502–04, 8 S.Ct. 164, the Court came to the identical conclusion found in the precedents it relied upon:
[W]here the contract is between the individual and the state, no action will lie against the state, and any action founded upon it against defendants who are officers of the state, the object of which is to enforce its specific performance by compelling those things to be done by the defendants which, when done, would constitute a performance by the state, or forbid the doing of those things which, if done, would merely be breaches of the contract of the state, is in substance a suit against the state itself, and equally within the prohibition of the Constitution.
It cannot be doubted that the Eleventh Amendment to the Constitution operates to create an important distinction between contracts of a state with individuals and contracts between individual *568 parties[.] ... [B]y virtue of the Eleventh Amendment to the Constitution, there being no remedy by a suit against the state, the contract is substantially without sanction, except that which arises out of the honor and good faith of the state itself, and these are not subject to coercion. Although the state may, at the inception of the contract, have consented as one of its conditions to subject itself to suit, it may subsequently withdraw that consent, and resume its original immunity, without any violation of the obligation of its contract in the constitutional sense. The very object and purpose of the Eleventh Amendment were to prevent the indignity of subjecting a state to the coercive process of judicial tribunals at the instance of private parties. It was thought to be neither becoming nor convenient that the several states of the Union, invested with that large residuum of sovereignty which had not been delegated to the United States, should be summoned as defendants to answer to complaints of private persons ... or that the course of their public policy and the administration of their public affairs should be subject to and controlled by the mandates of judicial tribunals, without their consent, and in favor of individual interests. To secure the manifest purposes of the constitutional exemption guaranteed by the Eleventh Amendment, requires that it should be interpreted, not literally and too narrowly, but fairly, and with such breadth and largeness as effectually to accomplish the substance of its purpose. In this spirit it must be held to cover, not only suits brought against a state by name, but those also brought against its officers, agents, and representatives, where

Westside Mothers v. Haveman, 133 F.Supp.2d 549 (2001)
73 Soc.Sec.Rep.Serv. 137
the state, though not named as such, is, nevertheless, the only real party against which alone in fact the relief is asked, and against which the judgment or decree effectively operates.
Ayers, 123 U.S. at 504–06, 8 S.Ct. 164 (internal citations omitted).
It bears repeating that the Ayers decision is the basis of the Court’s holding in Ex parte Young, and that Ayers has been recently reaffirmed in Idaho and Alden. The applicability of state sovereign immunity to state officers, and the corresponding narrowness of the Young exception were also more recently discussed at length in the Court’s Pennhurst II decision. See 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). In that case, a class action complaint was brought in federal court seeking injunctive relief against state officers responsible for operating an institution for mentally retarded patients, allegedly in a manner violative of federal and state law. Id. Returning to the familiar principals enunciated in Ayers, the Court stated that, “It is clear, of course, that in the absence of consent a suit in which the State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment,” and that “[t]his jurisdictional bar applies regardless of the nature of the relief requested.” Id., at 100, 104 S.Ct. 900 (internal citations omitted).
And, as it had in Ayers, the Court held once again that:
The Eleventh Amendment bars a suit against state officials when “the state is the real, substantial party in interest.” Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 89 L.Ed. 389 (1945). See, e.g., In re Ayers, 123 U.S. 443, 487–92, 8 S.Ct. 164, 31 L.Ed. 216 (1887); Louisiana v. Jumel, 107 U.S. 711, 720–723, 2 S.Ct. 128, 27 L.Ed. 448 (1883). Thus, “[t]he general rule is that relief sought nominally against an officer is in fact against the sovereign if the decree would operate against the latter.” Hawaii v. Gordon, 373 U.S. 57, 58, 83 S.Ct. 1052, 10 L.Ed.2d 191 (1963) (per curiam ). And, as when the State itself is named as the defendant, a suit against state officials that is in fact a suit against a State is barred regardless of whether it seeks *569 damages or injunctive relief. See Cory v. White, 457 U.S. 85, 91, 102 S.Ct. 2325, 72 L.Ed.2d 694 (1982).
Pennhurst II, 465 U.S. at 101–02, 104 S.Ct. 900.
As noted in Part IV.A., supra, the Medicaid statutes at
15

issue in this litigation do not involve supreme federal law. In Pennhurst II, by contrast, the Court forbade federal courts from enjoining state officers purportedly acting in contravention of state law. Though the Court observed that it was not reaching the specific question of whether federal courts had jurisdiction to grant prospective relief on the basis of federal law (and without reference as to whether such federal law was “supreme”), it did note that “the scope of any such relief would be constrained by principles of comity and federalism.” Id. at 104 n. 13, 104 S.Ct. 900 (citing Rizzo v. Goode, 423 U.S. 362, 378, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976) (quoting Stefanelli v. Minard, 342 U.S. 117, 120, 72 S.Ct. 118, 96 L.Ed. 138 (1951)) (“Where, as here, the exercise of authority by state officials is attacked, federal courts must be constantly mindful of the ‘special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law.’ ”)). The Court then went on to discuss at length the circumstances in which a suit against a state officer was in reality a suit against the sovereign State, and the limited circumstances under which suit against such officials might be brought under Young:
The general rule is that a suit is against the sovereign if “the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration,” or if the effect of the judgment would be “to restrain the Government from acting, or to compel it to act.” Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963) (citations omitted).
Pennhurst II, 465 U.S. at 101 n. 11, 104 S.Ct. 900.
The Pennhurst II Court noted that in Belknap v. Schild, 161 U.S. 10, 16 S.Ct. 443, 40 L.Ed. 599 (1896), it had drawn a careful distinction between actions in tort against a state officer as an individual and “suits in which the relief would run more directly against the State.” Pennhurst II, 465 U.S. at 111 n. 21, 104 S.Ct. 900 (citing Belknap, 161 U.S. at 18, 16 S.Ct. 443). That distinction was reiterated yet again in Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949), where the Court “plainly and explicitly rejected”
the argument that an allegation that a government official committed a tort sufficed to distinguish the official from the sovereign. Therefore, the argument went, a suit for an injunction to remedy the injury would not be against the sovereign. The Court rejected the argument, noting that it would make the doctrine of

Westside Mothers v. Haveman, 133 F.Supp.2d 549 (2001)
73 Soc.Sec.Rep.Serv. 137
sovereign immunity superfluous. A plaintiff would need only to “claim an invasion of his legal rights” in order to override sovereign immunity. Larson, 337 U.S. at 693, 69 S.Ct. 1457. In the Court’s view, the argument “confuse[d] the doctrine of sovereign immunity with the requirement that a plaintiff state a cause of action.” Id. at 692–93, 69 S.Ct. 1457.
Pennhurst II, 465 U.S. at 112, 104 S.Ct. 900. Under that rejected theory, “a plaintiff would need only claim a denial of rights protected or provided by statute in order to override sovereign immunity,” thereby rendering it a virtual nullity. Id. Larson established that the test of whether sovereign immunity is overridden under Young “turns on whether the defendant state official was empowered to do what he did, i.e., whether, even if he acted erroneously, it was action within the scope of his authority.” Id. at 111–13 n. 22, 104 S.Ct. 900, (citing Larson, 337 U.S. at 685, 69 S.Ct. 1457). The Larson Court explicitly rejected the theory that “an officer given the power to make decisions is only given the power to make correct decisions.” Id. (citing *570 Larson, 337 U.S. at 695, 69 S.Ct. 1457). “The Court in Larson made crystal clear that an officer might make errors and still be acting within the scope of his authority.” Id. As summarized by the Pennhurst II Court:
Larson thus made clear that, at least insofar as injunctive relief is sought, an error of law by state officers acting in their official capacities will not suffice to override the sovereign immunity of the State where the relief effectively is against it. Larson, 337 U.S. at 690, 695, 69 S.Ct. 1457. Any resulting disadvantage to the plaintiff was “outweigh[ed] by ‘the necessity of permitting the Government to carry out its functions unhampered by direct judicial intervention.’ ” Id. at 704, 69 S.Ct. 1457. If anything, this public need is even greater when questions of federalism are involved.
Pennhurst II, 465 U.S. at 113–114, 104 S.Ct. 900.
The instant plaintiffs posit that their complaint poses no question of a waiver or abrogation of Michigan’s sovereign immunity because they seek only prospective injunctive relief against Messrs. Haveman and Smedes, not the State itself. Having sued only these individuals, plaintiffs argue, Ex parte Young negates any sovereign immunity issue that would undoubtedly be implicated if they had sued Michigan directly. But plaintiffs’ description of the Young doctrine drastically oversimplifies what it permits and conflicts with Supreme
16

Court precedents, both ancient and modern.
According to the doctrine recently reaffirmed by the Supreme Court in Idaho, to accept plaintiff’s position here that Young permits all suits against state officers as proxies of their employing State would render sovereign immunity meaningless. Young permits a federal suit against a state officer only where the state law under which he purports to be acting is in conflict with federal law, under the legal fiction that he is thereby “stripped of his representative character.” Because the officer cannot exercise void legal authority on the State’s behalf, he is acting solely in his capacity as an individual, and can be held personally liable for his wrongdoing.
Here, the opposite is true. Messrs. Haveman and Smedes are not named as defendants because they have acted beyond their lawful authority as state officers, or because the Michigan statutes granting them authority are void in the face of superceding federal law. Plaintiffs do not claim these two individuals acted without lawful authority; in fact, plaintiffs have sued them precisely because they do have the alleged lawful authority to accomplish the relief plaintiffs seek. There is no personal, unlawful behavior attributed to these two men that plaintiffs wish to enjoin. They are sued solely in their capacities as representatives of the State of Michigan. It is Michigan, not Haveman and Smedes who are parties to the Medicaid agreement with the federal government. It is Michigan’s treasury, not the officers’ pocketbooks, which will pay for the EPSDT programs plaintiffs seek. It is Michigan that would bear the burden of administering this program under any order issued by this court, regardless of whether Haveman and Smedes are the individuals charged with implementing the State’s obligations. Michigan is the only real party against whom plaintiffs seek relief in this suit; the naming of the officers as defendants is an empty formality. In substance, plaintiffs assert that the State has not met its purported responsibilities, and that this court should commandeer the executive authority of the State, take charge of its officers, and appropriate from its treasury in order to provide the level of Medicaid services argued for by plaintiffs. Supreme Court jurisprudence from Chief Justice Marshall’s time to the present makes it plain that federal courts lack such authority.
In arguing to the contrary, plaintiffs rely on the “holding” in Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979) for the proposition that “a federal *571 court, consistent with the Eleventh Amendment, may enjoin state officials to conform their future conduct

Westside Mothers v. Haveman, 133 F.Supp.2d 549 (2001)
73 Soc.Sec.Rep.Serv. 137
to the requirements of federal law, even though such an injunction may have an ancillary effect on the state treasury.” Id. at 337, 99 S.Ct. 1139. But this “holding” attributed to Quern is not the case holding at all, but is instead a summary of a discussion from the previous iteration of the same case, Edelman v. Jordan, 415 U.S. 651, 667–68, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). The cited Edelman discussion was, in turn, a brief listing of several cases in which Ex parte Young had been found to apply, followed by the obvious observation that even prospective injunctive relief against state officers can have an effect on a State’s treasury (such as in Ex parte Young itself, where the State lost revenue by dint of its officers being precluded from levying penalties in violation of the due process clause). Id. Edelman contains no discussion of when state officers will be deemed to act in the shoes of the State for sovereign immunity purposes, except for a cautionary note (directly preceding the passage upon which plaintiffs vicariously cite through Quern ) that Ex parte Young and its progeny do not permit all forms of prospective injunctive relief against state officers, and that Young ‘s reliance upon Hagood and Ayers for the proposition that the federal courts cannot compel state officers to enforce State contracts was still good law. Edelman, 415 U.S. at 666–67, 94 S.Ct. 1347 (citing Hagood, 117 U.S. 52, 6 S.Ct. 608 and Ayers, 123 U.S. 443, 8 S.Ct. 164, 31 L.Ed. 216). Indeed, the Supreme Court has explicitly disclaimed having decided a jurisdictional issue in Edelman. See Hagans v. Lavine, 415 U.S. 528, 533 n. 5, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974). Hence, even Edelman serves as a reminder that Ex parte Young is not a carte blanche authorization for prospective equitable relief against individual state officers.
Quern instead stands for the relatively innocuous proposition that a federal court has the authority to order a defendant State to provide opposing litigants with notice of the “prospective relief already ordered by the court,” 440 U.S. at 349, 99 S.Ct. 1139, and that such notice is purely “ancillary,” id., because “the mere sending of that notice does not trigger the state administrative machinery.” Id. at 348, 99 S.Ct. 1139. The Court found it significant that:
Whether a recipient of notice [ordered by a court against a defendant state] decides to take advantage of those available state procedures [to obtain the benefits
17

plaintiffs claimed were unlawfully denied them] is left completely to the discretion of that particular class member; the federal court plays no role in that decision. And whether or not the class member will receive retroactive benefits rests entirely with the State, its agencies, courts, and legislature, not with the federal court.
Id. Notwithstanding plaintiffs’ reliance on it here, Quern is a decision describing the limits of a federal court’s power to authorize relief against a State, and approving of it in that case precisely because it was not substantive relief, and as such would have no effect on the State’s sovereign ability to manage its own program.
The foregoing analysis of the limits of the holdings in Quern and Edelman ‘s was confirmed in Pennhurst II, when the majority opinion addressed the dissent’s theory of the prospective equitable relief available against state officers, which is identical to that proposed by plaintiffs here:
In Edelman, although the State officers were alleged to be acting contrary to law, and therefore should have been “stripped of their authority” under the theory of the dissent, we held the action to be barred by the Eleventh Amendment. The dissent attempts to distinguish Edelman on the ground that the retroactive relief there, unlike injunctive relief, does not run against the agent. To say that injunctive relief against *572 State officials acting in their official capacity does not run against the State is to resort to the fictions that characterize the dissent’s theories. Unlike the English sovereign perhaps, an American State can act only through its officials. It is true that the Court in Edelman recognized that retroactive relief often, or at least sometimes, has a greater

Westside Mothers v. Haveman, 133 F.Supp.2d 549 (2001)
73 Soc.Sec.Rep.Serv. 137
impact on the State treasury than does injunctive relief, but there was no suggestion that damages alone were thought to run against the State while injunctive relief did not. We have noted that the authority-stripping theory of Young is a fiction that has been narrowly construed.... The [ultra vires ] doctrine excepts from the Eleventh Amendment bar suits against officers acting in their official capacities but without any statutory authority, even though the relief would operate against the State. At bottom, the doctrine is based on the fiction of the Young opinion. The dissent’s method is merely to take this fiction extreme. While the dissent’s result may be logical, in the sense that it would be difficult to draw principled lines short of that end, its view would virtually eliminate the constitutional doctrine of sovereign immunity.... For present purposes, however, we do no more than question the continued vitality of the ultra vires doctrine in the Eleventh Amendment context. We hold only that to the extent the doctrine is consistent with the analysis of this opinion, it is a very narrow exception that will allow suit only under the standards set forth in n.11, supra.
Pennhurst II, 465 U.S. at 114 n. 25, 104 S.Ct. 900 (internal citations omitted); See also Green v. Mansour, 474 U.S. 64, 70–71, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985) (confirming that notice in Quern was not an independent form of relief, and was merely a “case-management device”).
In note 11, as previously set forth in this opinion, supra, the Pennhurst II Court held that:
The general rule is that a suit is against the sovereign if the
18

judgment sought would expend itself on the public treasury or domain, or interfere with the public administration, or if the effect of the judgment would be to restrain the Government from acting or compel it to act... [A] state officer may be said to act ultra vires only when he acts without any authority whatever... [A]n ultra vires claim rests on the officer’s lack of delegated power. A claim of error in the exercise of that power is therefore not sufficient.
Id. at 102 n. 11, 104 S.Ct. 900 (internal citations and quotations omitted).
The Court then further noted that the defendant state officers in Pennhurst II, who were responsible for operating the mental health institutions whose care was alleged to be inadequate, plainly were not acting beyond the authority delegated by the State to operate the institution. Id. In other words, they were acting lawfully as agents of the State, even though their exercise of the State’s authority was purportedly substandard. Put simply, they were acting intra vires. That an agent may be doing a poor job of exercising his agency does not make him less of an agent. It is only when he acts beyond the authority delegated to him that he acts ultra vires. Cf. Wisconsin Bell v. Public Service Comm’n of Wisconsin, 57 F.Supp.2d 710, 713 (W.D.Wis.1999) (explaining that “one must acknowledge the conceptual difference between a state official performing state functions in a way that violates federal law and a state official who is performing federally authorized functions but is alleged to be performing those functions improperly”); accord Children’s Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1412, 1416–18 (6th Cir.1996) (describing Young as a limited exception to Eleventh Amendment immunity that is inapplicable where no unconstitutional actions by state officers are alleged).
It is on this point—that it is really the State that is being sued—that plaintiffs *573 present one of their strongest arguments, in which they describe Michigan’s assertion of sovereign immunity to suit as a “red herring” because the Sixth Circuit and this court have held on numerous occasions that the Eleventh Amendment does not bar suits for prospective injunctive relief against state officers,

Westside Mothers v. Haveman, 133 F.Supp.2d 549 (2001)
73 Soc.Sec.Rep.Serv. 137
even when those officers are being sued in their official capacity and the relief will actually run against the State. See Nelson v. Miller, 170 F.3d 641, 645 (6th Cir.1999); Futernick v. Sumpter Township, 78 F.3d 1051, 1055 (6th Cir.), cert. denied sub nom., Futernick v. Caterino, 519 U.S. 928, 117 S.Ct. 296, 136 L.Ed.2d 215 (1996); Doe v. Wigginton, 21 F.3d 733, 736–37 (6th Cir.1994); Akella v. Mich. Dept. of State Police, 67 F.Supp.2d 716, 722 (E.D.Mich.1999). In each case, the test utilized for determining whether a suit against a state officer in his official capacity was in fact a suit against the State was whether the relief sought was retrospective or prospective. That criterion is undoubtedly correct. Ex parte Young at most offers plaintiffs only prospective relief, and retrospective relief cannot be granted because it will inevitably be at the State’s expense. But that is not the only criterion. As the Sixth Circuit observed in Children’s Healthcare, the availability of the Young doctrine depends upon there being an officer who is acting outside his lawful authority, or on the basis of authority assumed in contravention of the federal Constitution. See Children’s Healthcare, 92 F.3d at 1414–16. Furthermore, in Alden v. Maine, a Supreme Court opinion written subsequent to the cases upon which plaintiffs rely, the Court reiterated the ultra vires-intra vires distinction under Ex parte Young, as well as noting yet again that the Young doctrine did not authorize all suits for prospective equitable relief:
[T]he exception to our sovereign immunity doctrine recognized in Ex parte Young is based in part on the premise that sovereign immunity bars relief against States and their officers in both state and federal courts, and that certain suits for declaratory or injunctive relief against state officers must therefore be permitted if the Constitution is to remain the supreme law of the land. As we explained in General Oil Co. v. Crain, 209 U.S. 211, 28 S.Ct. 475, 52 L.Ed. 754 (1908), a case decided the same day as Ex parte Young and extending the rule of that case to state-court suits: “It seems to be an obvious consequence that as a State can only perform its functions through its officers, a restraint upon them is a restraint upon its sovereignty from which it is exempt without its consent in the state tribunals, and exempt by the Eleventh Amendment of the Constitution of the United States, in the national tribunals. The error is in the universality of the conclusion, as we have seen. Necessarily to give adequate protection to constitutional rights a distinction must be made between valid and invalid state laws, as determining the character of the suit against state officers.”
19

Alden, 119 S.Ct. at 2263 (quoting General Oil, 209 U.S. at 226–27, 28 S.Ct. 475) (emphasis added) (internal citations omitted). Plaintiffs sole reliance upon a prospective-retrospective test for Ex parte Young relief fails not because it is unnecessary, but because it is insufficient.
Messrs. Haveman and Smedes are indisputably the individuals responsible for carrying out the EPSDT services on behalf of Michigan of which plaintiffs complain. However, they are acting in their official capacities within the authority delegated to them by the State, and the relief sought against them is in reality to be inflicted only against the State. Accordingly, the State of Michigan is the real defendant in this suit, and the doctrine of Ex parte Young does not apply, even though plaintiffs have nominally named individual state officers as defendants. Unless otherwise waived by the State, Michigan’s officers share the State’s immunity from private suits so long as they are acting within the lawful authority delegated to them by the *574 State, and this court has no authority to order the relief sought against them.
C. The Court Lacks Authority to Compel State Officers Performing Discretionary Functions
Under the doctrine of Ex parte Young:
There is no doubt that the [federal] court cannot control the exercise of the discretion of an officer. It can only direct affirmative action where the officer having some duty to perform not involving discretion, but merely ministerial in nature, refuses or neglects to take such action. In that case, the court can direct the defendant to perform this merely ministerial duty.
Ex parte Young, 209 U.S. at 158, 28 S.Ct. 441 (internal citation omitted).

Westside Mothers v. Haveman, 133 F.Supp.2d 549 (2001)
73 Soc.Sec.Rep.Serv. 137
Plaintiffs here quote a similar holding from In re Ayers, which stated:
[I]t has been well settled that, when a plain official duty, requiring no exercise of discretion, is to be performed, and performance is refused, any person who will sustain personal injury by such refusal may have a mandamus to compel its performance; .. [.]
In re Ayers, 123 U.S. at 506, 8 S.Ct. 164 (internal citation omitted). This court’s review of the statutes and regulations upon which plaintiffs’ complaint relies as the basis for Messrs. Haveman’s and Smedes’ purported wrongdoing informs it that their responsibilities “involve the paradigmatic exercise of discretion.” Wisconsin Bell, 57 F.Supp.2d at 713. That is, even if Michigan were obligated to provide all of the services plaintiffs argue are required (an argument that the State disputes in many facets) the federal laws upon which plaintiffs rely do not explain how those levels of service are to be reached, nor do those federal laws require that the State provide service in a particular manner. Moreover, even if the responsible state officials are obligated to accomplish the purportedly federally-mandated goals, plaintiffs point this court to no statutes or regulations that deny those decision makers “the character of judgment or discretion” in determining how to get there. United States ex rel. Girard Trust Co. v. Helvering, 301 U.S. 540, 543–44, 57 S.Ct. 855, 81 L.Ed. 1272 (1937). Under the laws relied upon by plaintiffs, the lack of official discretion necessary to invoke Ex parte Young mandamus-type relief is, at a minimum, far from being “clear.” See, e.g., Heckler v. Ringer, 466 U.S. 602, 616, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984) (explaining that defendant must owe plaintiff a “clear, nondiscretionary duty” under common law of mandamus). Even though they fail to allege such an obvious nondiscretionary duty, plaintiffs seek the appointment of a Special Master whereby the court can superintend the performance of the Michigan Department of Community Health’s management of the EPSDT program. The claimed need for such superintending demonstrates that plaintiffs in actuality seek to have the court to exercise its discretion in place of the State’s; were this not the case, it would seem that a simple injunctive order would be sufficient to require the defendants to
20

perform their “nondiscretionary” duties. Nonetheless, plaintiffs’ complaint utterly fails to allege that named defendants Haveman and Smedes lack discretion in managing the EPSDT services at issue in this litigation, and that failure precludes this suit from falling within the narrow class of cases eligible for Ex parte Young relief.
D. Where the Statutory Scheme Provides a Remedy, the Court May Not Substitute an Alternative Form of
Relief.
In Seminole Tribe, the Supreme Court held that:
[W]here Congress has prescribed a detailed remedial scheme for the enforcement against a State of a statutorily created right, a court should hesitate before casting aside those limitations and permitting an action against a state officer based upon Ex parte Young.
*575 Seminole Tribe, 517 U.S. at 74, 116 S.Ct. 1114; accord Telespectrum, Inc. v. Public Serv. Comm’n of Kentucky, 227 F.3d 414, 419–21 (6th Cir.2000) (recognizing Seminole Tribe ‘s limitation of Ex parte Young where a statutory remedial scheme already exists).
The Seminole Tribe Court recognized that under the statute at issue in that litigation, Congress had already imposed upon states participating in the program at issue a limited form of liability for non-compliance. Id. at 75–76, 116 S.Ct. 1114. To permit the full panoply of remedial sanctions available under Ex parte Young to be imposed against such States, the Court recognized, would render the more limited sanctions contained in the statute superfluous. Id.; see also Wisconsin Bell, 57 F.Supp.2d at 713 (indicating that a statutory provision for judicial review of state commission actions was exclusive remedy, rendering Ex parte Young irrelevant). As previously discussed in Part II, supra, the Medicaid statute contains a specific, limited remedy that may be used against non-compliant States: The HHS Secretary may withhold funds from those States that she believes are not meeting

Westside Mothers v. Haveman, 133 F.Supp.2d 549 (2001)
73 Soc.Sec.Rep.Serv. 137
their contractual responsibilities under the federal-state cooperative agreement.
In Suter v. Artist M., 503 U.S. 347, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992), the Court suggested (without so finding) that the provision of a funding cutoff mechanism within a statutory program enacted under the Spending Power might foreclose remedies by private plaintiffs. Id. at 360–61, n. 11–12, 112 S.Ct. 1360. The Suter Court observed that so long as the federal government maintained the ability to enforce the program requirements at issue with the carrot and stick of federal funds, those requirements could hardly be considered unenforceable. Id. at 360–61. Suter, however, was decided before Seminole Tribe, and in the later case the Court’s suggestion in Suter came to fruition. Because the Medicaid statute contains a remedial enforcement provision far more limited than that which this court might order under Ex parte Young (and certainly more limited that the relief sought be plaintiffs), this court is without authority to defy the congressionally-mandated scheme and impose more extensive remedial measures, even if they might be more efficacious11 in accomplishing the congressional purpose. The existence of a limited remedy in the Medicaid statute precludes the use of Ex parte Young to enforce the statutory scheme by other means.

programs enacted pursuant to the Spending Power.13 Plaintiffs argue that Michigan knew of this unambiguous condition at the time it *576 agreed to accept the federal Medicaid funds, and that this condition has been repeatedly reaffirmed in the years since Medicaid’s enactment. As will be discussed below, the court finds plaintiffs’ position, while not without support, to be unpersuasive.
In pertinent part, § 1983 states that:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

V. Whether § 1983 Creates a Private Cause of Action Against Michigan’s Officers for Non–Compliance With the Medicaid Program
In addition to arguing that defendants are liable under the Ex parte Young doctrine (an argument the court has found unpersuasive)12 plaintiffs also argue that Michigan has voluntarily waived its sovereign immunity from suit, see, e.g., College Savings, 119 S.Ct. at 2223, and that Michigan knowingly accepted the unambiguous condition, see Pennhurst I, 451 U.S. at 17, 101 S.Ct. 1531, that it be amenable to private causes of action for non-compliance with the terms of the Medicaid program. As previously explained, it is undisputed that the Medicaid statute itself contains no such condition. But plaintiffs maintain that 42 U.S.C. § 1983, which was enacted well before the EPSDT programs at issue in this litigation, creates a generalized private right of action against States for their non-compliance with federal
21

42 U.S.C. § 1983. The parties here concur that under Will v. Michigan Dept. of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), a State is not a “person” for purposes of § 1983. Id. at 64, 109 S.Ct. 2304. Plaintiffs maintain, however, that Messrs. Haveman and Smedes are “persons” amenable to suit under § 1983, and that Will supports that understanding.
In Will, the Court noted that although the scope of the Eleventh Amendment and the scope of § 1983 are separate issues, they are interrelated. Id. at 66–67, 109 S.Ct. 2304. For purposes of this litigation, however, it is not entirely clear whether plaintiffs’ position is that § 1983 independently operates to waive the sovereign immunity held by state officers acting in their official capacity, or whether such waiver is dependent on the applicability of the Ex parte Young doctrine (though it is clear that plaintiffs rely extensively on the doctrine in disputing the State’s arguments concerning the state of the law circa 1871).14 But the court’s analysis here, however, need not determine the extent to which Michigan’s Eleventh Amendment immunity cabins the potential § 1983 liability of its officers. Whether or not § 1983 might

Westside Mothers v. Haveman, 133 F.Supp.2d 549 (2001) 73 Soc.Sec.Rep.Serv. 137
be limited by Ex parte Young is irrelevant for purposes of this suit, because it is clear under controlling Supreme Court precedent that § 1983 does not create a blanket cause of action for Spending Power programs operated pursuant to voluntary federal-state agreements.
A. Will ‘s “Clear Statement” and Contemporaneous Construction Requirements for Construing § 1983
In Will, the Supreme Court held that:
[t]he language of § 1983[ ] falls short of satisfying the ordinary rule of statutory construction that if Congress intends to alter the usual constitutional balance between the States and the Federal Government, it must make its intention to do so unmistakably clear in the language of the statute ... Congress should make its intention clear and manifest if it intends to pre-empt the historic powers of the States, or if it intends to impose a condition on the grant of federal moneys. In traditionally sensitive areas, such as legislation affecting the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision.
Id. at 65, 109 S.Ct. 2304 (internal citations and quotations omitted). The Will Court held that because a State could not be *577 sued without its consent at the time of § 1983’s enactment, the statute had to be construed consistent with the state of the law contemporaneous with its enactment absent an explicit statutory alteration of that understanding. Id. at 67, 109 S.Ct. 2304. Specifically, the Court held that:
22

[I]n enacting § 1983, Congress did not intend to override well-established immunities or defenses under the common law. One important assumption underlying the Court’s decisions in this area is that members of the 42nd Congress were familiar with common-law principles, including defenses previously recognized in ordinary tort litigation, and that they likely intended these common-law principles to obtain, absent specific provisions to the contrary.
Id. (internal citations and quotations omitted); accord Blessing, 520 U.S. at 350, 117 S.Ct. 1353 (Scalia, J., concurring) (“While it is of course true that newly enacted laws are automatically embraced within § 1983, it does not follow that the question of what rights those new laws (or, for that matter, old laws) secure is to be determined according to modern notions rather than according to the understanding of § 1983 when it was enacted”). As explained in Part III, supra, the relationship between Michigan and the Federal Government is a contract. Accordingly, in determining whether § 1983 gives third-party beneficiaries of a federal-state contract the right to sue state officers for contractual breach, this court is required under Will to examine whether the law permitted such suits at the time of § 1983’s enactment in 1871.
B. Under the Common Law of 1871 Sovereign Immunity Did Not Permit States to be Sued for Breach of Contract, and the Law of Agency Prohibited Officer–Agents to be Liable for Contractual Breach by
State–Principals.
First, as discussed at length in Part IV.B., supra, it was clear both before and after the enactment of § 1983 that a private party contract could not be maintained against the States or their officers for breach of contract.15 Because of considerations of brevity, and because the issue is not in doubt (plaintiffs having offered no authority to the contrary as to this point), this court will limit its recitation

Westside Mothers v. Haveman, 133 F.Supp.2d 549 (2001)
73 Soc.Sec.Rep.Serv. 137
to the Supreme Court cases of the period following § 1983’s enactment, which repeatedly held that state officers could not be enjoined to perform a State’s contractual obligations because they were not parties to the contracts in their personal capacity.
To begin, in Louisiana v. Jumel, 107 U.S. 711, 2 S.Ct. 128, 27 L.Ed. 448 (1883), the Court held that the officers and agents of the State could not be ordered to enforce the State’s obligations to its bondholders. Id. at 721–723, 2 S.Ct. 128 (“They [the state’s officers] may be moved through the State, but not the State through them.”); Id. at 723–24, 2 S.Ct. 128 (“here, the obligation is all on the State, to be discharged through its servants, and the money is held by the officers proceeded against in their character as servants of the State, and no other”). Similarly, in Hagood v. Southern, 117 U.S. 52, 6 S.Ct. 608, 29 L.Ed. 805 (1886), the Court dismissed a suit in which the plaintiffs sought specific performance of a contract between the plaintiffs and the State, even though the named defendants were officers of the State, because the officers had no real interest in the suit, as the State was the only real party in interest. Id. at 67, 6 S.Ct. 608. And, as discussed earlier in Part IV.B., supra, the Court in Ayers dismissed a suit to enjoin state officers from taking action that would allegedly breach the State’s contract. Ayers, 123 U.S. at 497, 503, 8 S.Ct. 164.
In short, there is no doubt that, at the time of § 1983’s enactment, agency law did *578 not permit state officers to be sued for the contractual breaches of their employing states. Nor is there any doubt that a suit for a State’s contractual breach was barred by sovereign immunity, even where officers were nominally named as defendants, because the State was the real party in interest. Hence, this court is bound by Will to interpret the law consistent with those principles. Therefore, Messrs. Haveman and Smedes cannot be sued under § 1983. As agents of the State, they cannot be held liable for Michigan’s breach of its Medicaid contract with the federal government. Moreover, their employer, Michigan, as the only real party to the contract alleged to be in breach, is immune from suit.16
Plaintiffs argue that the status of agency law in the 1870s is unclear, and that cases exist in which courts enjoined state officers to enforce state contracts. For this proposition, they cite only Board of Liquidation v. McComb, 92 U.S. 531, 23 L.Ed. 623 (1875), a case in which a bondholding private citizen successfully brought suit against state officers to enforce a State’s obligations under the legislative act issuing the bonds. Id. at 532–33.
23

But upon closer examination, McComb actually bolsters Michigan’s position. This is so because the suit in McComb was allowed to proceed precisely because the statute under which the suit was brought expressly authorized a suit against the State if it failed to meet its obligations. Id. at 537–38. If the Medicaid statute at issue in this litigation contained such an unambiguous authorization, Michigan and/or its officers could unquestionably be sued. But under the law controlling in 1871, absent such authorization, suits against States for contractual breach were barred, and § 1983 incorporates that prohibition.
Besides their unfounded reliance on McComb, plaintiffs’ primary argument against this construction of § 1983 is that it has since been superceded by Ex parte Young, and that any suits seeking prospective injunctive relief may be brought against state officers acting in their official capacities. Indeed, they have placed great reliance on Footnote Ten of the Will opinion, which stated that “[O]f course a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because official capacity actions for prospective relief are not treated as actions against the State. This distinction was commonplace in sovereign immunity doctrine and would not have been foreign to the 19th-Century Congress that enacted § 1983.” Will, 491 U.S. at 71 n. 10, 109 S.Ct. 2304 (internal citations and quotations omitted). As a general matter, plaintiff’s endorsement of Footnote Ten is undoubtedly correct. However, use of the Court’s generalized recognition fails to take account of the doctrine’s limitations, which are contained in Young, Ayers, and their progeny, to which Footnote Ten specifically cites. As explained in Parts IV.A. and B., supra, plaintiffs’ carte blanche construction of Ex parte Young is completely incongruous with the doctrine’s twin requirements that (1) the official be acting ultra vires; and (2) that the duty to be performed be non-discretionary in nature. Neither condition exists with respect to Messrs. Haveman and Smedes’ execution of the Medicaid statute (nor, for that matter, is there any “supreme” federal law at stake). And for purposes of this analysis, it matters not whether one considers these precepts of a constitutional nature or a mere historical iteration; the fact of the matter is that these strictures were part *579 and parcel of the common law in 1871, and thus control the statutory construction of § 1983. While plaintiffs are undoubtedly correct that § 1983 has been used countless times since 1871 to obtain prospective injunctive relief against state officials in their official capacities, plaintiffs fail to address the distinction between successful suits brought in tort where the individual’s lawless act stripped him of the

Westside Mothers v. Haveman, 133 F.Supp.2d 549 (2001) 73 Soc.Sec.Rep.Serv. 137
State’s authority, and those unsuccessfully brought in contract where plaintiffs seek relief against individual officers where they still possess the mantle of the State’s immunity, and moreover cannot be liable for the misdeeds of their principals. The distinction was crucial in 1871, and § 1983 incorporates it today under the doctrine enunciated in Will.
C. It is not Unambiguously Clear that Third–Party Donee Beneficiaries Could Sue for Breach of Contract
in 1871
Section 1983 cannot possibly create a cause of action for third-party donee beneficiaries to a contract, because it is not unambiguously clear that such a right existed at the time the statute was enacted. To their credit, the respective counsels in this case have mustered significant authority on this question of whether a third-party donee beneficiary—i.e., a beneficiary not owed money by the promisee—may sue a party in breach to enforce a contract made for his benefit.17 It is undisputed that such a right generally exists today; it is greatly disputed whether such a right inhered in 1871.
Not being steeped in the intricacies of 19th Century contract law, this court (and perhaps counsel as well) is consigned to reviewing as best it can the historical sources proffered to it by the litigating factions. At the outset, the court must concede that the issue is not facially clear-cut, and that both sides have proffered language from authorities helpful to their respective positions. At a minimum, the number of sources, if not the weight of such authorities, appears to support Michigan’s position that third-party donee beneficiaries could not sue the contracting parties in 1871. See, e.g., Second Nat’l Bank v. Grand Lodge, 98 U.S. 123, 124–24, 25 L.Ed. 75 (1878) (recognizing “the general rule that privity of contract is required” to support an action to enforce a contract); K. Teeven, A History of the Anglo–American Common Law of Contract 230 (1990) (explaining that “the rights of donee beneficiaries were not clearly established until Seaver v. Ransom (1918).”); C. Langdell, A Summary of the Law of Contracts, 79 (2d ed. 1880) (noting that in the 1870s, the recognized rule was “that a person for whose benefit a promise was made, if not related to the promisee, could not sue upon the promise”); 1 W. Story, A Treatise on the Law of Contracts 509 (M. Bigelow ed.
24

1874) (noting “the tendency of the [American] courts” to hold that “no stranger to the consideration can take advantage of a contract, though made for his benefit”); accord Blessing, 520 U.S. at 349–50, 117 S.Ct. 1353 (Scalia, J., concurring) (stating that it “appears to have been the law at the time § 1983 was enacted” that “the third-party beneficiary was generally regarded as a stranger to the contract, and could not sue upon it”).
Plaintiffs, however, reject this characterization of the state of contract law circa *580 1871, and proffer that the two leading contract law treatise authors, Corbin and Williston, describe donee beneficiaries as having the right to sue promises during that period. Those scholars, and plaintiffs, rely in turn on the case of Hendrick v. Lindsay, 93 U.S. 143, 23 L.Ed. 855 (1876). The facts of Hendrick can be summarized as follows: Hendrick requested by letter that Lindsay to sign an appeal bond for him. Lindsay agreed to sign the bond, so long as Hendrick agreed to indemnify him if it were collected. Lindsay and Mansfield (apparently an associate of Lindsay’s) signed the appeal bond and drafted an indemnity bond that they sent to Hendrick, stating that he would indemnify them if they ultimately had to pay on the appeal bond. Hendrick never signed the indemnity bond. Lindsay and Mansfield ended up having to pay on the appeal bond, and subsequently sued Hendrick for indemnification. The instant parties appear to agree on these factual predicates.
Plaintiffs rely on the following language from Hendrick for the proposition that donee beneficiaries could have brought suit in the 1870s:
It is also argued, as Mansfield’s name does not appear in the letters of Hendrick, that he could not join in this action. This would be true, if the promise were under seal, requiring an action of debt or covenant; but the right of a party to maintain assumpsit on a promise not under seal, made to another for his benefit, although much controverted, is now the prevailing rule in this country.
Hendrick, 93 U.S. at 149. Plaintiffs note that Hendrick nowhere limits the afore-quoted language to creditor beneficiaries, and conclude, therefore, that all classes of

Westside Mothers v. Haveman, 133 F.Supp.2d 549 (2001)
73 Soc.Sec.Rep.Serv. 137
third-party beneficiaries may sue the contracting parties. In addition, plaintiffs argue that Mansfield could not have been a creditor beneficiary of Lindsay’s, because Lindsay would had to have owed Mansfield a duty that Lindsay intended to discharge by rendering performance of the indemnification agreement to Mansfield. Finally, plaintiffs assert that both Corbin and Williston describe Mansfield as a donee beneficiary. See Corbin on Contracts (1951) at 334; Williston, Treatise on the Law of Contracts § 37:11 at 96 and n.83.
As a textual matter, plaintiffs’ interpretation of Hendrick does not withstand scrutiny. The unanimous Hendrick Court made it clear that it considered Hendrick to be desirous of “procuring a sufficient bond,” but that “it was immaterial to Hendrick whether the bond was signed by one or more persons.” Hendrick, 93 U.S. at 148. Additionally, the Court’s analysis of the transaction also makes clear that Hendrick’s letter to Lindsay was deemed to be an instruction to procure a bond without any limitation on whom the creditor(s) might be. Id. (“It is true that this promise, in terms, was to Lindsay; but there is no reason why it, any more than the request, should be limited. If the request applied, as we think it did, to the procurement of a sufficient bond, the promise has a like extent.”). Hence, the quoted language upon which plaintiffs rely—though general when taken out of context—refers only to creditors, and stands only for the proposition that the state of the law at that time did not require promises made without seal to actually name the would-be-creditor. Indeed, plaintiffs’ assertion that Mansfield was a donee beneficiary is belied by the fact that even the quoted language refers to him as a “party,” something that a donee beneficiary most assuredly is not. See id. at 149. This observation concerning Mansfield’s status negates plaintiffs’ second argument as well; it is not the relationship between Lindsay and Mansfield that the Court is describing, but the relationship between Mansfield (one of two promisees) and Hendrick (the promisor).
Finally, as amicus MML points out, the expressed views of Corbin and Williston on third-party donee beneficiaries are more complex than plaintiffs represent. First, both Corbin (a self-described advocate of permitting third-party donee beneficiaries *581 to sue, see Corbin, § 772 at 2–4) and Williston acknowledged that the common law right of donee beneficiaries to sue was a 20th Century development that altered the previous state of affairs. See Corbin § 772 at 4, § 782 at 81; Williston § 37:1 at 5, § 37:12 at 103, §§ 7:1, 7:10, 7:11. Second, both Corbin and Williston define third-party donee beneficiaries as
25

recipients of gifts who have not endowed a benefit upon the parties related to the gift, a description completely at odds with Mansfield’s status in Hendrick; Mansfield provided a bond in exchange for the promise of an indemnity. See Corbin § 774 at 6; Williston § 37:7 at 35, n.67. Finally, neither Corbin nor Williston actually describe Mansfield as a donee beneficiary; rather, both authors refer to the Hendrick case in their respective discussions of the overall development of third-party beneficiary law. See Corbin § 831 at 334, § 832 at 340–42, n.20; Williston § 37:11 at 89, 95–96, n.83, § 37:10 at 83–89, n.55. In short, plaintiffs have failed to proffer any persuasive historical evidence that third-party donee beneficiaries had a common law right to sue in 1871. Rather, the law presented to the court leads only to the conclusion that no such right then existed. In accordance with Will ‘s dictate that § 1983 be interpreted to reflect the “common-law principles” existing in 1871, the court finds that the statute affords third-party donee beneficiaries no right to sue the parties to the contract. Thus, § 1983 independently creates no right for beneficiaries of federal programs enacted pursuant to the Spending Power to sue the governmental entities or officers responsible for allocating those benefits. And even if one adopted the view of the state of the law surrounding § 1983’s enactment that is most charitable to plaintiffs’ interpretation, at best the feasibility of such donee suits would remain ambiguous, thereby falling short of the “clear statement” required to impose upon a State a condition on the receipt of federal funds. See, supra, Part V.A.
D. Any Rights, Privileges, or Immunities Created Under the Medicaid Statute are “Secured” By State,
Not Federal Law.
Aside from the construction of § 1983 demanded by Will, suits brought by the intended beneficiaries of federal-state cooperative agreements created under the Spending Power appear to fall outside the text of § 1983 itself. “Section 1983 provides a federal remedy for ‘the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.’ ” Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 105, 110 S.Ct. 444, 107 L.Ed.2d 420 (1989) (emphasis added). The statute provides a remedy “against all forms of official violations of federally protected rights,” whether

Westside Mothers v. Haveman, 133 F.Supp.2d 549 (2001) 73 Soc.Sec.Rep.Serv. 137
violative of the Constitution or a federal statute. Id. at 105–06, 110 S.Ct. 444 (internal citation and quotation omitted). But while § 1983 protects against violations of federal “rights, privileges, or immunities,” it does not necessarily extend to protections against all violations of federal law. Id. at 106, 110 S.Ct. 444.
It may well be that the interests plaintiffs assert here under the Medicaid program are “rights, privileges, or immunities,” but they are not “secured” by federal law. As is relevant here, the word “secure” means: “to put beyond hazard or losing or of not receiving: GUARANTEE < the blessings of liberty to ourselves and our posterity—U.S. Const.>.” Webster’s 3rd Int’l Dictionary (1976).18 Under the ordinary meaning of the term, no interest is “secured” by the federal Medicaid statute. Upon its enactment, this federal law does not vest in a single American the right or privilege of receiving federally- *582 subsidized medical care. As explained in Part III, supra, though passed by both houses of Congress and signed by the President, the Medicaid statute has no force of its own. It is only when a State, such as Michigan, accepts the Federal Government’s offer and agrees to participate in the program that any benefits accrue to eligible individuals. Even if such accrual is characterized as a “right, privilege, or immunity,” it is not one guaranteed by federal law by being put beyond hazard of losing or not receiving. If Michigan elects not to participate in the Medicaid program, Congress’s intended beneficiaries will not be aided with federal funds. And if Michigan, after having elected to participate, decides that it no longer wishes to do so, eligible individuals in the State will again not receive the federal aid. All of this is entirely consistent with federal law; the Federal Government gives States an ongoing choice, and it is entirely the States’ prerogative whether to participate. In short, it is not federal law that “secures” Medicaid rights (to the extent they might be so attributed), but state law. Section 1983 does not secure rights created under state law, and therefore is inapplicable to any such rights created under the Medicaid program.
VI. Whether This Court’s Rulings are Foreclosed by Precedent.
Plaintiffs assert that as a matter of binding legal precedent, suits brought pursuant to § 1983 against state
26

officers for noncompliance with programs enacted under the federal Spending Power are permitted, and that numerous Supreme Court and Sixth Circuit opinions have held as much. In particular, they rely on Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970); Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980); Wright v. City of Roanoke Redevelopment and Hous. Auth., 479 U.S. 418, 107 S.Ct. 766, 93 L.Ed.2d 781 (1987); and Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990). While acknowledging that the cases cited by plaintiffs involve the use of § 1983 by private parties to enforce federal legislation enacted pursuant to the Spending Power, Michigan notes that two other lines of Supreme Court authority—upon which this court relied in its foregoing analyses—have developed concurrently with those cases cited by plaintiffs. First, the Supreme Court has made clear that Spending Clause legislation is contractual in nature and may not be interpreted to impose duties or liabilities upon States absent a clear statement of congressional intent. See, e.g., South Dakota, 483 U.S. 203, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987); Pennhurst I, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981). Second, the Court has specifically applied the clear statement requirement to the construction of § 1983 where Congress intends to alter the traditional constitutional balance between the States and the Federal Government, and determined that the clear statement rule applies with particular force to congressional Spending Power enactments. Will, 491 U.S. at 65, 109 S.Ct. 2304 (1989). In the absence of such clear statements, the common law as it existed in 1871 controls the interpretation of § 1983. Id. at 67, 109 S.Ct. 2304. No federal court, Michigan suggests, including the Supreme Court, has yet attempted to reconcile these divergent lines of authority.
This court has discussed at length the merits of Michigan’s arguments and found them to be correct expositions of current controlling law as to the specific issues presented. What remains is for the court to consider whether plaintiffs are correct in asserting that such legal conclusions are precluded by other Supreme Court or Sixth Circuit precedent. An iteration of a few basic interpretive principles of what constitutes binding precedent is in order. To begin, when the Supreme Court assumes, sub silentio, questions of jurisdictions in a case, then it is not bound by those assumptions in subsequent cases. See Will, 491 U.S. at 63 n. 4, 109 S.Ct. 2304; *583 Hagans v. Lavine, 415 U.S. 528, 533–35 n. 5, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974) (collecting cases); United States v. More, 3 Cranch 159, 7 U.S. 159, 172, 2 L.Ed. 397 (1805). Similarly, an assumption by the Court that a

Westside Mothers v. Haveman, 133 F.Supp.2d 549 (2001)
73 Soc.Sec.Rep.Serv. 137
particular cause of action exists does not constitute a decision that it does. See Burks v. Lasker, 441 U.S. 471, 476 n. 5, 99 S.Ct. 1831, 60 L.Ed.2d 404 (1979); Hagans, 415 U.S. at 533 n. 5, 94 S.Ct. 1372. Finally, isolated statements in the Court’s opinions that do not squarely address and resolve the issue mentioned also do not constitute binding precedent. See Alden, 527 U.S. at 735–38, 119 S.Ct. 2240. And though the conclusion seems obvious, where the Court has not definitively spoken to an issue, it remains an open question subject to interpretation by the lower federal courts. See Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 229, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995).
Therefore, the Supreme Court’s decisions—and for that matter, any court’s decisions—decide only the legal issues that they specifically purport to decide. That there may be other assumptions, analyses, and language contained in those decisions may be of great utility for courts deciding future cases, but such conditions and language do not constitute binding precedent.
Upon turning to the cases upon which plaintiffs characterize as binding precedent, it appears that while the cases certainly lend support to plaintiffs’ position, they have no binding precedential value as to the issues addressed in this opinion. For example, Rosado, the 1970 case that plaintiffs claim establishes their right to bring the instant cause of action under § 1983, says nary a word about sovereign immunity, Ex parte Young, the Spending Power, or, for that matter, § 1983 itself. Instead, Rosado addresses the substance of New York’s implementation of the Aid to Families With Dependent Children program and the decisions made by the district court under the peculiar procedural posture of the case. The underlying (but unstated) assumption of the case is that the Court has jurisdiction, and that a cause of action exists, but the Court’s opinion addresses neither issue. Rosado, then, does not illuminate the issues presented here.
Better support for plaintiffs’ position is found in Thiboutot, Wright, and Wilder. Thiboutot held that as a general matter, § 1983 provides a right of action to enforce not only constitutional rights, but federal statutes, including those outside the realm of civil rights. Wright and Wilder effectively put the meat on Thiboutot ‘s bare bones by establishing a three-pronged test for determining when a substantive federal statute creates a private cause of action that is enforceable under § 1983 (referred to hereafter as the “Wright–Wilder ” test). In each of those three cases, the substantive federal statutes at issue were enacted pursuant to the Spending Power, but in none of
27

the cases did the Court address the constitutional or statutory construction limitations on Congress in imposing such programs. Indeed, there is no better illustration than Thiboutot of assumptions in an opinion not necessarily reflecting the law. In that case, the Court assumed that the defendant State was a “person” under § 1983, an assumption later squarely rejected in Will, 491 U.S. at 66, 109 S.Ct. 2304. Likewise, Alden flatly rejected Thiboutot ‘s assumption that a State’s Eleventh Amendment immunity did not extend to suits in the State’s own courts. 527 U.S. at 737, 119 S.Ct. 2240. The non-binding nature of “assumptions” similarly controls here. The fact that all three cases assumed § 1983 to automatically create a mechanism permitting suits against state officers for violations of Spending Power programs is simply not dispositive as to what the statute necessarily permits. Nor do the three cases provide insight as to the effect of sovereign immunity, Ex parte Young, or any other subjects neither mentioned nor ruled upon.19
*584 However, speaking specifically to how § 1983 is to be construed for any cause of action, the Court in Will enunciated two important principles that are relevant here: (1) that it is to be construed in accordance with the common law as it existed in 1871; and (2) that it fails as a “clear and manifest” indication to impose a condition upon the States for the receipt of federal funds. Id. at 67, 65, 109 S.Ct. 2304 (internal citations omitted). In addressing the effect of § 1983 on federal-state programs enacted pursuant to the Spending Power, the Court could not have been more clear:
In traditionally sensitive areas, such as legislation affecting the federal balance, the requirement of clear statement assures that the legislature has, in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision.
Id. at 65, 109 S.Ct. 2304 (internal citations and quotations omitted). Will holds that whatever else § 1983 may be, it is not by itself a “clear statement” demonstrating an intent to alter the federal-state balance. Id.
In shorthand form, one can think of the Thiboutot–Wright–Wilder trilogy as answering the question of how a court is to construe which substantive

Westside Mothers v. Haveman, 133 F.Supp.2d 549 (2001) 73 Soc.Sec.Rep.Serv. 137
federal statutes create “rights, privileges, or immunities” within the ambit of § 1983, while Will provides a framework for answering the enforcement question of who can be sued and what kinds of relief may be authorized under § 1983. Indeed, Pennhurst I made this very distinction between substantive rights and enforceability. 451 U.S. at 28 n. 21, 101 S.Ct. 1531.20 Thus, the train of analysis as applied in the instant case may be summarized as follows: Pennhurst I and South Dakota require that if Congress intends to impose any condition on the receipt of federal funds by a State, that the condition be a “clear statement” expressed in unambiguous terms. See Pennhurst I, 451 U.S. at 9, 16, 101 S.Ct. 1531; South Dakota, 483 U.S. at 207, 107 S.Ct. 2793. The Medicaid statute contains no such clear statement requiring that either a State or its officers be subject to suit if the State fails to comply with the terms of the program. Will holds that § 1983 is itself not a clear statement that can impose conditions upon a State’s exercise of its powers beyond those that existed in 1871. Will, at 65, 67, 109 S.Ct. 2304. No such right existed in 1871 at common law to sue a State or its officers for a failure to properly implement a governmental program. Hence, neither § 1983’s express terms nor its historical construction authorizes *585 such suits.21 In the absence of any clear statement requiring submission by States or their officers to suit as a condition of receiving federal Medicaid funds, no such suit may be brought.
VII. Other Arguments
A few remaining points warrant mention. First, plaintiffs suggest that by consenting to § 1983 suits in the past against its officers for alleged violations of the federal Medicaid program, Michigan has implicitly recognized that its officers are amenable to such suits. It should be remembered, however, that under both Ex parte Young and the statutory construction of § 1983, state officers retain the cloak of the State’s sovereign immunity when implementing programs authorized by Congress under the Spending Power. And in College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 119 S.Ct. 2219, 2226, 144 L.Ed.2d 605 (1999), the Supreme Court squarely rejected the notion that a State could “impliedly” or “constructively” waive its immunity from suit based on its past behavior. As the Court further explained:
28

[A] State’s sovereign immunity is “a personal privilege which it may waive at its pleasure.” Clark v. Barnard, 108 U.S. 436, 447, 2 S.Ct. 878, 27 L.Ed. 780 (1883). The decision to waive that immunity, however, “is altogether voluntary on the part of the sovereignty.” Beers v. Arkansas, 20 How. 527, 529, 15 L.Ed. 991 (1858).
Id. There must be, the Court held, “a ‘clear declaration’ by the State of its waiver [ ] to be certain that the State in fact consents to suit.” Id. at 2228. Hence, the fact that Michigan may have exercised its privilege in the past and consented to suit in other cases is irrelevant to the instant matter. In the absence of a clear declaration by Michigan in the case at bar that it has waived its sovereign immunity, and by extension, the immunity of its officers, it cannot be subjected to suit.
Another point warranting brief mention revolves around plaintiffs’ supposition that the legislative history of the Medicaid Act and its subsequent amendments are demonstrative of Congress’ intent that states participating in the Medicaid program be subject to private suit. For this supposition, they rely on Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), which reiterated the well-known proposition that in determining whether a given substantive federal statute is intended to create a private cause of action, legislative history must be considered. Id. at 694, 99 S.Ct. 1946. Plaintiffs are most assuredly correct in that assertion, as confirmed by the Wright/Wilder tripartite test for determining when Congress intended federal statutes to create a privately enforceable right. However, plaintiffs’ argument misses the mark where either sovereign immunity or a clear statement rule is concerned. Both are here. As the Court has held:
Waivers of ... sovereign immunity, to be effective, must be unequivocally expressed....[T]hey are not generally to be liberally construed....[T]he Government’s consent to be sued must be construed strictly in favor of the sovereign, and not enlarged beyond what the language requires.
United States v. Nordic Village, 503 U.S. 30, 33–34, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992) (internal citations and

Westside Mothers v. Haveman, 133 F.Supp.2d 549 (2001)
73 Soc.Sec.Rep.Serv. 137
punctuation omitted). The unequivocal expression eliminating sovereign immunity must be contained in the statutory text; if such *586 clarity does not exist, it cannot be inferred from the statute’s legislative history. Id. at 37, 112 S.Ct. 1011. “Resort to legislative history is only justified where the face of the Act is inescapably ambiguous.” Garcia v. United States, 469 U.S. 70, 76 n. 3, 105 S.Ct. 479, 83 L.Ed.2d 472 (1984) (internal citation and quotation omitted). By definition, an “inescapably ambiguous” statute is also not a “clear statement” that “unambiguously” expresses congressional intent that a State or its officers be subject to suit. Hence, waivers of sovereign immunity cannot be accomplished by judicial construction from legislative history. The statute must speak for itself. Here, neither the Medicaid statute nor § 1983 contain such a statement, and Michigan and its officers thus retain their immunity from suit, and have not knowingly consented to private causes of action as a condition of participating in the Medicaid program.
Similarly, plaintiffs maintain that congressional silence in the face of repeated federal court decisions authorizing private causes of action under the Medicaid program against state officers requires a conclusion that such decisions are consistent with congressional intent. The argument is farfetched on its face; there is little or no institutional intent to be divined from congressional inertia, and courts are incompetent to do so. The reasons that Congress may choose to act or to refrain from acting are probably more numerous than its members, and there is no judicially-cognizable intent derivable from a political institution’s failure to act. See Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 186, 114 S.Ct. 1439, 128 L.Ed.2d 119 (1994). As the Central Bank Court explained:
[R]espondents infer that these Congresses, by silence, have acquiesced in the judicial interpretation of [the statute]. We disagree....[O]ur observations on the acquiescence doctrine indicate its limitations as an expression of congressional intent. It does not follow that Congress’ failure to overturn a statutory precedent is reason for this Court to adhere to it. It is impossible to assert with any degree of assurance that congressional failure to act
29

represents

affirmative

congressional approval of the

courts’ statutory interpretation.

Congress may legislate, moreover,

only through the passage of a bill

which is approved by both Houses

and signed by the President.

Congressional inaction cannot

amend a duly enacted statute.

Id. at 186, 114 S.Ct. 1439 (“We walk on quicksand when we try to find in the absence of corrective legislation a controlling legal principle”) (internal citations and punctuation omitted). Courts may attempt divine congressional intent only from what Congress does, not from what it does not do. That Congress has done nothing in response to court decisions assuming that particular causes of action exist provides no instruction as to whether they actually do; the answer lies in the statute. Here, the statute in question— § 1983—contains no such authorization.
Finally, the court mentions plaintiffs’ reliance on Bell v. New Jersey, 461 U.S. 773, 103 S.Ct. 2187, 76 L.Ed.2d 312 (1983), for the proposition that so long as Congress makes clear a State’s obligations under a joint program enacted pursuant to the Spending Power, Congress need not make clear how such obligations are to be enforced. Notwithstanding that Supreme Court cases such as South Dakota would have superceded such a rule, plaintiffs’ interpretation of Bell fails to withstand scrutiny. In fact, the Court in Bell found that Congress had, consistent with Pennhurst I, been clear in the Spending Power statute at issue that the federal government could administratively recoup misspent funds from the State. Id. at 790 n. 17, 791, 103 S.Ct. 2187 (noting that the statute “clearly assigned” the auditing and recoupment powers to the Secretary of Education). Interestingly, it is this last of plaintiffs’ arguments that suggests a resolution to the problem presented by this suit. None of the constitutional or statutory construction issues addressed here prevent *587 Congress from creating a private cause of action against States or their officers for failure to comply with federal-state contracts created pursuant to the Spending Power. Far from it. If Congress wishes to make states and/or their officers subject to private suit as a condition of receiving federal funds, it need only say so unequivocally in the statute authorizing the program.22 Once faced with the “clear statement” that a condition of program participation is amenability to private suit, a

Westside Mothers v. Haveman, 133 F.Supp.2d 549 (2001) 73 Soc.Sec.Rep.Serv. 137
State could make a “knowing” choice as to whether to participate. If it so chooses, then both parties to the contract will be clear as to its terms, including the means of redress for breach. A “clear statement” is all that is required.
VIII. Conclusion
Because the Medicaid program at issue is the result of a voluntary contract between two sovereigns—Michigan and the Federal Government—it is not of the same legal nature as actions by the Federal Government in its capacity as the supreme sovereign compelling behavior by individual citizens. The terms of the agreement are set out in the Medicaid statute, which is enacted pursuant to the Constitution’s Spending Power, and the obligations a State assumes as a result of its acquiescence are no greater than those expressly set forth in the statute. The constitutionally consensual nature of the contractual agreement means that unlike federal laws enacted pursuant to other constitutionally-enumerated powers, it is not the supreme law of the land. When state officers charged with carrying out these contracts do not act ultra vires, they are legally indistinguishable from the State, which is the only party to the contract, and they retain the State’s constitutional sovereign immunity from suit. Such is the case here. Moreover, the Medicaid program at issue here not only vests discretion in the implementing officers, but contains its own specific, congressionally-mandated remedies for its violations. For all of these reasons, the doctrine of Ex parte Young is unavailable to plaintiffs. Michigan and its officers retain their constitutional immunity from suit, and this court accordingly lacks jurisdiction.
The same result would obtain even if there were no infirmity of constitutional sovereign immunity depriving the court of jurisdiction. This is so because there is no cause of action available against Michigan or its officers. Where federal-state contracts enacted pursuant to the Spending Power are concerned, § 1983 operates as neither a cause of action against a State, even if the Young doctrine were applicable, nor as a voluntary waiver of a State’s sovereign immunity where Young is inapposite. In order for Congress to impose a condition upon a State in return for receipt of federal funds, such a condition must be unambiguously set forth as a clear statement in the
30

program statute. No such clear statement is contained in § 1983, the statute that plaintiffs claim grants them a private cause of action against the State’s officers to enforce the terms of the Medicaid program. The statute’s express terms contain no such language that would put a State on notice. And as a matter of historical statutory construction, which the Supreme Court requires in construing § 1983, no such clear, unambiguous intent to subject States to private suit may be found. Third-party donee beneficiaries lack standing to sue for the State’s contractual breach under *588 § 1983. And § 1983 preserves not only the sovereign immunity of a State and its officers from suit for the State’s contractual breach, but also recognizes that as agents of the State, officers may not be held to answer for their principal’s contractual breach. Moreover, by its terms, § 1983 appears not to protect rights under Spending Power programs that are “secured” by state, rather than federal law. Finally, events outside the statute, such as a State’s past voluntary submission to suit, legislative history, or congressional inaction, cannot be used to manufacture a “clear statement” within a Spending Power program statute to create an obligation upon a State that is not expressly contained in the statutory language. Simply put, § 1983 does not operate as “clear statement” imposing the obligation upon a State that it submit to private enforcement actions for violations of federal-state contract terms.
Strong democratic, federalism and federalism policy23 concerns undergird these strictures. Congress is presumed to say what it means in the language of a statute. When courts are forced to guess at legislative intent, it increases the risk of laws being created that the people as ultimate sovereign had no intention of enacting. The risk doubles where two sovereigns are concerned. Here, it is not only the people of the United States as represented in the Federal Government, but the people of each individual State as represented by their legislatures and executive branches, whose consent is required. The Federal Government could have imposed the Medicaid program directly without the aid of the States, but it choose not to. Instead, it elected to offer a purely voluntary program in which each State was given the choice to participate. If that choice, exercised by the democratically-elected political branches of each State, is to be meaningful, all of the program participation conditions must be clear. It is the State, after all, that will bear the burden of implementation, as a matter of money, management, and diverted resources. In order for a State to effectively evaluate the “cost” (in the broad sense) of its participation, and to compare it with the expected

Westside Mothers v. Haveman, 133 F.Supp.2d 549 (2001) 73 Soc.Sec.Rep.Serv. 137

“benefit” (both direct and psychic), then it must know exactly what the burdens will be. Whether it will be subject to suit by private plaintiffs, and have its treasury and officers at the mercy of a federal court, is surely an important consideration in deciding whether to participate. Such a burden is undoubtedly far more potentially onerous than an administrative denial of future funds by the Secretary of HHS. This is not to say that a State may not have such conditions imposed upon it, but is only to say that it must know unambiguously what those conditions are.
Nor are plaintiffs without recourse. For any medical services they allege to have been wrongfully denied, they may avail themselves of the internal administrative appeals process contained in the program. They may also exercise their First Amendment rights to petition the political actors responsible for this program: For example, they could request that the HHS Secretary cut off Michigan’s funds for its asserted breach; they could lobby Congress to take similar steps by legislative means; furthermore, they can petition Michigan’s legislature to create a cause of action permitting private suits against the State for its failure to comply with the Medicaid program terms; or they could lobby Congress to condition participation in the Medicaid program, or perhaps even all
Footnotes

federal-state contracts, upon the States agreeing to submit to private causes of action for non-compliance with the contract terms. It is for the citizens of the respective sovereigns to decide through their elected representatives what the contours *589 of governmental programs will be. And while permitting such causes of action against the States and their officers to enforce Spending Power programs might be desirable public policy, the law as it exists today does not authorize it.
For the foregoing reasons, Defendants’ motion to dismiss is granted, and Plaintiffs’ Motion for Class Certification is rendered moot, accordingly,
Plaintiffs’ “Motion for Class Certification” is DENIED and
Plaintiffs’ Complaint is DISMISSED WITH PREJUDICE.
All Citations
133 F.Supp.2d 549, 73 Soc.Sec.Rep.Serv. 137

1

The court dismissed four other organizations originally named as plaintiffs for lack of organizational standing on December 28,

1999.

2

Pending before the court is Plaintiffs’ October 14, 1999 “Motion for Class Certification,” which will be denied as moot.

3

The court commends the efforts by the respective counsel in this case to address the many complex issues raised in this case.

Particularly noteworthy for its quality and helpfulness is the amicus participation at the court’s request of the League and its pro

bono counsel, Mr. Jeffrey Sutton, of Jones, Day, Reavis and Pogue in Columbus, Ohio, for whose assistance the court here

expresses its gratitude.

4

The parties have not addressed whether other remedies are available to the federal government, such as administrative

recoupment of misspent funds or overpayments.

5

The portion of Count IV of plaintiff’s complaint concerning Michigan’s alleged failure to meet its EPSDT transportation obligations

under 42 U.S.C. § 1396a(a)(43)(b) and 42 C.F.R. § 441.62(a) was dismissed on December 21, 1999 as barred by collateral estoppel

and res judicata.

6

The notable exception to this rule, of course, is state judicial officers, who are expressly obligated under Article VI of the Federal

Constitution to uphold federal law. See Testa v. Katt, 330 U.S. 386, 67 S.Ct. 810, 91 L.Ed. 967 (1947).

7

Not included within this prohibition is Congress’ express power delineated in Article I, Section 8 of the Federal Constitution to call

forth the State militias to “execute the Laws of the Union, suppress Insurrections and repel Invasions.”

31

Westside Mothers v. Haveman, 133 F.Supp.2d 549 (2001) 73 Soc.Sec.Rep.Serv. 137

8

Even assuming, arguendo, that the Medicaid program is a “contract”—which plaintiffs do not concede—the parties heavily

dispute whether EPSDT-eligible children are third-party beneficiaries to the contract, and even if they are, whether they are

properly characterized as “incidental” or “intentional” beneficiaries. For purposes of the analyses in this opinion, the court will

assume, without so holding, that they are intentional third-party beneficiaries of the contract.

9

It is difficult to imagine how it might be, in light of the Supreme Court’s apparent holding in Kimel that § 5 of the Fourteenth

Amendment, at most, grants Congress the authority to abrogate State sovereign immunity only in the areas of racial and gender

discrimination. See Kimel, 120 S.Ct. at 644–46 (holding that § 5 does not grant Congress the power to abrogate sovereign

immunity to prevent age discrimination). Even in the absence of Kimel ‘s substantive limitation of § 5, § 5 still would likely be of

no aid to plaintiffs. The Court has held that when Congress intends to impose legislation on a state without the state’s consent

and intrude on traditional state authority, the legislation must contain a specific statement of intent that Congress is acting under

its § 5 powers. See Gregory v. Ashcroft, 501 U.S. 452, 469–70, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991) (citing Pennhurst I, 451 U.S.

at 16, 101 S.Ct. 1531 (holding that in the absence of a statement of congressional intent to act under § 5, the Court would

assume that Congress was acting solely under the Spending Power)). No such statement of intent in the Medicaid statutes has

been brought to the court’s attention. Moreover, the issue is not before the court, and will not be addressed here.

10 The Clause itself states: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary, notwithstanding.
U.S. Const., Art. VI.

11 A supposition not intended to be implied here.

12 See, supra, Part IV.

13 It bears emphasizing that plaintiffs do not argue that every federal-state program enacted pursuant to the Spending Power creates a private cause of action. Whether a private cause of action exists, they posit, depends solely on the construction of the substantive law enacted pursuant to the Spending Clause, which should be construed in conformity with criteria set out by the Supreme Court. If such construction leads to the conclusion that Congress intended a particular statutory provision to specifically benefit a particular private party, it is plaintiffs’ position that § 1983 automatically makes state officers amenable to suit for violations of that statute. As previously alluded to in Footnote 8, supra, the court assumes for purposes of this litigation, without so deciding, that the EPSDT provisions at issue are intended to benefit the instant plaintiffs. The court’s inquiry here concerns plaintiff’s threshold assertion—namely, whether § 1983 does, in fact, operate as a blanket authorization for such suits.
14 The lack of clarity on this point is perfectly understandable, given that plaintiffs maintain that their suit is properly brought under Ex parte Young, though the court has ultimately determined that it is not.
15 The briefs of amicus curiae MML extensively set forth the state of the law concerning the States’ immunity from suit for breaches of their own contracts and the attendant lack of state officer amenability to suit under then-prevailing agency law.
16 Construing § 1983 in accordance with the common law standards as they existed in 1871 is hardly novel, as the Supreme Court has done so on several occasions. See, e.g., Will, 491 U.S. 58, 109 S.Ct. 2304 (State not a “person”); City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981) (municipal immunity from punitive damages); Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) (absolute immunity for state judges and “good faith and probable cause” defense for police officers); Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951) (absolute immunity for state legislators).
17 In their initial brief on this issue, plaintiffs cited numerous 19th Century cases for the proposition that the right of third-party beneficiaries to sue to enforce promises made by others was recognized in the 1870s at the time Congress enacted § 1983. In response, Michigan asserted that the cited cases did not concern donee beneficiaries, but instead involved suits by third-party creditor beneficiaries who were either related to the promisee or had themselves performed services amounting to consideration. Such third-party creditors, Michigan acknowledges, did have the right to sue in 1870, but that was an exception to
32

Westside Mothers v. Haveman, 133 F.Supp.2d 549 (2001) 73 Soc.Sec.Rep.Serv. 137
the general rule prohibiting third-party beneficiaries from bringing suit. Plaintiffs did not challenge Michigan’s characterization of those initial citations in their later briefs, and the court’s review of plaintiffs’ cases confirms the State’s analysis of the donee-creditor distinction.
18 The optimal definition of the term “secure” would be from a dictionary published circa 1871, but this court does not have such sources available to it. There is no reason to believe, however, that this definition is incorrect, as it comports with the original understanding that individuals be enabled to sue to protect their federally-defined civil liberties. See Will, 491 U.S. at 66, 109 S.Ct. 2304.
19 The same holds true for the many cases from the Sixth Circuit and other courts proffered by plaintiffs in which § 1983 has been used to enforce “rights” created under federal-state Spending Power programs against States or their officers; none of those have addressed any of the specific arguments raised here.
20 This court would be remiss in not acknowledging two post-Wilder Supreme Court cases in the § 1983/Spending Power program area. In Suter v. Artist M., 503 U.S. 347, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992), the Court held that the federal-state Spending Power program at issue did not create rights enforceable by private parties under § 1983. The decision resulted in some confusion among the lower federal courts; for while the Court invoked the Wright–Wilder principles for determining whether a “right” enforceable by § 1983 exists, and also invoked Pennhurst I’s “clear statement” rule as a barrier against enforcing indiscreet statutory provisions against States, the Court’s mode of analysis left unclear whether Wilder–Wright remained the appropriate framework for making such determinations. However, five years later, in Blessing v. Freestone, 520 U.S. 329, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997), the Court reaffirmed the validity of the Wright–Wilder test when it rejected the enforceability under § 1983 of yet another federal-state Spending Power program provision. In that case, as alluded to earlier in this opinion, the question of whether third-party donee beneficiaries could bring suit under § 1983 was raised. Contrary to plaintiffs’ assertions in the instant case, the majority opinion did not reject the argument, as it did not address it at all. See Blessing, 520 U.S. at 350, 117 S.Ct. 1353 (Scalia, J., concurring) (noting that the Court’s ruling leaves open the possibility that third-party donee beneficiary suits do not lie under § 1983).
21 Though admittedly not necessary to the decision here, amicus MML suggests that South Dakota (or principles of contract interpretation) might even prohibit a general federal statute requiring that States subject themselves or the officers to suit as a condition for receiving federal funds for any program. See South Dakota, 483 U.S. at 207, 208 and n. 3, 107 S.Ct. 2793 (noting that conditions on federal grants might be illegitimate if unrelated to the purpose of the spending program at issue). Because § 1983 is not such a general authorization, there is no need for this court to address whether Congress might pass such a statute in lieu of doing so on a program-specific basis.
22 Indeed, plaintiffs suggest that Congress has already done something similar on at least two occasions in reaction to Supreme Court decisions holding, on grounds other than those presented in the instant suit, that no private cause of action lay. See 42 U.S.C. § 1320a–2 (intended to overrule any legal effect in Suter v. Artist M. upon the previous Wright/Wilder test for evaluating whether privately enforceable rights were created by substantive federal statutes); 20 U.S.C. § 1415(1) (overruling the Court’s decision in Smith v. Robinson, 468 U.S. 992, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984), holding that the comprehensive scheme contained in the statute in question precluded private § 1983 actions to protect rights contained in the statute).
23 “Federalism policy” here refers to the political philosophy that might animate a congressional decision to act or refrain from acting in these spheres, as compared to the concept of “federalism” that describes the very structure of the relationship between the federal government and the several states.
33

 
 Westside Mothers v. Olszewski, 368 F.Supp.2d 740 (2005) Med & Med GD (CCH) P 301,637

368 F.Supp.2d 740 United States District Court,
E.D. Michigan, Southern Division.
WESTSIDE MOTHERS, et al., Plaintiffs, v.
Janet OLSZEWSKI, et al., Defendants.
No. 99–CV–73442–DT. |
April 22, 2005.
Synopsis Background: Welfare rights organization brought action against state officials under § 1983, seeking injunctive relief and appointment of special master to end state’s alleged systemic deprivation of early and periodic screening, diagnosis, and treatment services (EPSDT) under its Medicaid program. The District Court, 133 F.Supp.2d 549,dismissed action. Organization appealed. The Court of Appeals, 289 F.3d 852, affirmed in part, reversed in part, and remanded. State moved to dismiss or for summary judgment.
Holdings: The District Court, Cleland, J., held that:
Court of Appeals’ determination that there was private right of action did not preclude reexamination of issue, under law of case doctrine;
there was private right of action to enforce requirement that state provide “medical assistance” to qualified beneficiaries;
“medical assistance” meant money rather than particular level of service;
claim was stated that state had policy or practice of not providing EPSDT benefits;
there was no private right of action allowing challenge to methods and practices for compensating caregivers;
only persons found eligible could sue for failure to notify of EPSDT benefits; and
1

state officials could not escape potential liability for EPSDT violations by having work performed through contractors.
Motion granted in part, denied in part.
Procedural Posture(s): Motion for Summary Judgment.
Attorneys and Law Firms
*742 Jennifer R. Clarke, Robin P. Sumner, Philadelphia, PA, Marilyn T. Mullane, Susan K. McParland–Nash, Detroit, MI, for Plaintiffs.
Morris J. Klau, Detroit, MI, for Defendant.
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ NOVEMBER 19, 2004 “MOTION TO DISMISS AND/OR [FOR]
SUMMARY JUDGMENT”
CLELAND, District Judge.
This matter is before the court on Defendants’ November 29, 2004 “Motion to Dismiss and/or [for] Summary Judgment.” This is Defendants’ second motion to dismiss the case. On March 26, 2001, this court issued a detailed written order granting Defendants’ original motion to dismiss based on a lack of jurisdiction and want of a cause of action. Westside Mothers v. Haveman, 133 F.Supp.2d 549 (E.D.Mich.2001). Plaintiffs appealed and, in an opinion dated May 15, 2002, the Sixth Circuit Court of Appeals reversed. Westside Mothers v. Haveman, 289 F.3d 852 (6th Cir.2002).
The court of appeals, after revoking its first mandate, issued an amended mandate on August 31, 2004. This court re-opened the case on its docket and, on October 4, 2004, conducted an in-person scheduling/status conference with the attorneys remaining in the case. During the October 2, 2004 conference, counsel for Defendants expressed a desire to file a motion to dismiss

Westside Mothers v. Olszewski, 368 F.Supp.2d 740 (2005) Med & Med GD (CCH) P 301,637
based in large part on the United States Supreme Court’s intervening decision in Gonzaga University v. Doe, 536 U.S. 273, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002). Plaintiffs’ counsel also indicated a desire to file an amended complaint. The court subsequently permitted Plaintiffs to *743 file their “First Amended Complaint” on October 18, 2004 and stayed discovery in this case pending review of Defendants’ anticipated and potentially dispositive motion to dismiss.
Defendants’ motion has been fully briefed and the court held oral argument on the motion February 2, 2005. For the reasons set forth below, the court will grant in part and deny in part Defendants’ motion.
I. BACKGROUND
This is a civil rights case brought against Michigan state officials for their alleged failure to provide eligible Michigan children with medical, dental, developmental, and mental health services under the federal Medicaid statute. Plaintiffs claim that Defendants are denying Early and Periodic Screening, Diagnostic, and Treatment (“EPSDT”) services to eligible Medicaid recipients under age 21.
Plaintiffs bring this 42 U.S.C. § 1983 action against Janet Olszewski in her official capacity as Director of the State of Michigan Department of Community Health and Paul Reinhart in his official capacity as Deputy Director of the State of Michigan Medical Services Administration. Plaintiffs Westside Mothers, Families on the Move, Inc., the Michigan Chapters of the American Association of Pediatrics and of Pediatric Dentists, along with five named individual Plaintiffs allege violations of their federal statutory rights secured under the federal Medicaid statute 42 U.S.C. §§ 1396a(a)(8), (a)(10), (a)(30)(A), and (a)(43) as defined by 42 U.S.C. §§ 1396d(a) & (r) and 1396u–2(b)(5). (See Pl.’s First Amend. Compl. at ¶ 2.) Plaintiffs also have filed a motion for class certification pursuant to Federal Rule of Civil Procedure 23.
Plaintiffs seek declaratory and injunctive relief asking the court to find unlawful Defendants’ policy and practice of denying Plaintiffs (and the asserted class) health services to which they are entitled under the statute. (Id. at 26.)
2

Plaintiffs also ask the court to appoint a Special Master to oversee an injunction requiring Defendants to remedy their past statutory violations. (Id. at 25–26.)
There is no dispute that the Medicaid statute at issue is spending clause legislation. “Medicaid is a cooperative federal-state program through which the Federal Government provides financial assistance to States so that they may furnish medical care to needy individuals.” Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 502, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990). The Medicaid program, Title XIX of the Social Security Act, was created in 1965 and “provides a federal subsidy to states that choose to reimburse poor individuals for certain medical care.” Westside Mothers, 289 F.3d at 855. “Although participation in the program is voluntary, participating states must comply with certain requirements imposed by the Act and regulations promulgated by the Secretary of Health and Human Services.” Wilder, 496 U.S. at 502, 110 S.Ct. 2510. States participate in the program through “State plans for medical assistance” that are submitted to and approved by the Secretary of Health and Human Services. 42 U.S.C. § 1396; see also 42 C.F.R. § 430.10. A state that fails to comply with its approved medical assistance plan and certain federal requirements runs the risk of having the Secretary revoke its funding. 42 U.S.C. § 1396c.
Michigan has elected to participate in the Medicaid program. It operates under a waiver from the Health Care Finance Administration, providing eligible individuals Medicaid services by requiring them to enroll in Health Maintenance Organizations (“HMOs”), also known as managed care entities (“MCEs”). See *744 42 U.S.C. § 1396u–2(a)(1)(A)(i) (states may “require an individual who is eligible for Medicaid under the state plan ... to enroll with a managed care entity [‘MCE’] as a condition of receiving such assistance”). A medicaid managed care entity “provides or arranges for services for enrollees under a contract ... pursuant to [42 U.S.C. § 1396b(m) ].” 42 U.S.C. § 1396u–2(a)(1)(B)(i). All of the individually named Plaintiffs are enrolled in a MCE.
Plaintiffs’ First Amended Complaint comprises three counts. Count I is titled “Failure to Provide Healthcare to all Eligible Children,” alleging a breach of 42 U.S.C. § 1396a(a)(8) and (a)(10) as defined by 42 U.S.C. § 1396d(a) & (r). Count II is titled “Failure to Deliver Access to the Children’s Healthcare Services Required by Title XIX,” alleging a breach of rights created under 42 U.S.C. § 1396a(a)(30)(A), as defined by § 1396u–2(b)(5). Count III is titled “Denial of Basic Child Healthcare

Westside Mothers v. Olszewski, 368 F.Supp.2d 740 (2005) Med & Med GD (CCH) P 301,637
Outreach and Information” and alleges a violation of 42 U.S.C. § 1396a(a)(43)(A) as defined by § 1396d(a) and (r). All of these counts are brought pursuant to 42 U.S.C. § 1983.
Defendants argue that Count I should be dismissed because: (1) the statutory provisions relied on by Plaintiffs do not create individual federal rights enforceable under 42 U.S.C. § 1983. See Blessing v. Freestone, 520 U.S. 329, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997); Gonzaga University v. Doe, 536 U.S. 273, 283, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002); (2) 42 U.S.C. §§ 1396a(a)(8) and (a)(10) do not create an obligation for the State to provide actual medical services and therefore forecloses the remedy sought by Plaintiffs; (3) Plaintiffs have no individual federal enforceable right to ensure full or substantial compliance with the Secretary’s participation goal established pursuant to 42 U.S.C. § 1396d(r); (4) there is no genuine issue of material fact that Michigan’s Medicaid program, policies, and procedures provide for all EPSDT screening services as required by federal law; and (5) because a claim that a Medicaid provider failed to provide covered services completely or adequately does not state a claim against the state officials under § 1983.
Defendants argue that Count II should be dismissed because neither 42 U.S.C. § 1396a(a)(30)(A) nor § 1396u–2(b)(5) create enforceable rights under § 1983.
Lastly, Defendants argue that Count III should be dismissed because no Plaintiff has alleged that he lacked information about the availability of EPSDT services and that there is no genuine issue of fact on this claim because Defendants do provide for informing all eligible Medicaid recipients under age 21 of the availability of EPSDT services as required by 42 U.S.C. § 1396a(a)(43) and described in § 1396d(r). In short, Defendants argue that Plaintiffs fail to state a claim because none of them have alleged that they had been determined eligible but were denied notice. Defendants further argue that Plaintiffs’ complaint erroneously relies on an “effectiveness” requirement not contained within § 1396a(a)(43).
II. STANDARDS

A. Rule 12(b)(6)
When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must construe the complaint in a light most favorable to the plaintiff, accept all the factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of his claims that would entitle him to relief. Sistrunk v. City of Strongsville, 99 F.3d 194, 197 (6th Cir.1996); Cline v. Rogers, 87 F.3d 176, 179 (6th Cir.1996); Wright v. MetroHealth Med. *745 Ctr., 58 F.3d 1130, 1138 (6th Cir.1995). A motion to dismiss may be granted “only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Pratt v. Ventas, Inc., 365 F.3d 514, 519 (6th Cir.2004) (internal quotation marks and citation omitted). When an allegation is capable of more than one inference, it must be construed in the plaintiff’s favor. Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir.1995); In re DeLorean Motor Co., 991 F.2d 1236, 1240 (6th Cir.1993); Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.1993). Hence, a judge may not grant a Rule 12(b)(6) motion based on a disbelief of a complaint’s factual allegations. Wright, 58 F.3d at 1138; Columbia Natural Resources, Inc., 58 F.3d at 1109.
Though decidedly liberal, this standard of review does require more than the bare assertion of legal conclusions. Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 726 (6th Cir.1996); LRL Properties v. Portage Metro Hous. Auth., 55 F.3d 1097, 1100–01 (6th Cir.1995). The complaint must give the defendant fair notice of the plaintiff’s claim and the grounds upon which it rests. Gazette v. City of Pontiac, 41 F.3d 1061, 1064 (6th Cir.1994); Johnson v. City of Detroit, 319 F.Supp.2d 756, 759–60 (E.D.Mich.2004).
“In practice, ‘a ... complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory.’ ” Lillard, 76 F.3d at 726 (emphasis in original) (quoting Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir.1988)). “In determining whether to grant a Rule 12(b)(6) motion, the court primarily considers the allegations in the complaint, although matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint also may be taken into account.” Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir.2001) (emphasis omitted) (citing Nieman v. NLO, Inc., 108 F.3d 1546, 1554 (6th Cir.1997)).

3

Westside Mothers v. Olszewski, 368 F.Supp.2d 740 (2005) Med & Med GD (CCH) P 301,637

B. Rule 56
Under Federal Rule of Civil Procedure 56, summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). “Where the moving party has carried its burden of showing that the pleadings, depositions, answers to interrogatories, admissions and affidavits in the record construed favorably to the non-moving party, do not raise a genuine issue of material fact for trial, entry of summary judgment is appropriate.” Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir.1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
Summary judgment is not appropriate when “the evidence presents a sufficient disagreement to require submission to a jury.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The existence of some factual dispute, however, does not defeat a properly supported motion for summary judgment; the disputed factual issue must be material. See id. at 252, 106 S.Ct. 2505 (“The judge’s inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict-‘whether there is [evidence] upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.’ ”). A fact is “material” for purposes of summary judgment when proof of that fact would have the effect of establishing or refuting an essential element of the claim or a defense advanced by either party. Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.1984).
*746 In considering a motion for summary judgment, the court must view the facts and draw all reasonable inferences from the admissible evidence presented in a manner most favorable to the nonmoving party. Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir.2003) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). The court is not to weigh the evidence to determine the truth of the matter, but must determine if the evidence produced creates a genuine issue for trial. Sagan v. United States, 342 F.3d 493, 497 (6th Cir.2003).
4

III. DISCUSSION
A. Rights Enforceable Under 42 U.S.C. § 1983
All of Plaintiffs’ claims employ 42 U.S.C. § 1983 as an enforcement vehicle. Section 1983 provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.
42 U.S.C. § 1983 (emphasis added).
Section 1983 does not create substantive rights; it merely serves as a vehicle to enforce deprivations of “rights[,] privileges, or immunities secured by the Constitution and laws [of the United States].” Oklahoma City v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985); Gonzaga Univ. v. Doe, 536 U.S. 273, 285, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002) (“ § 1983 merely provides a mechanism for enforcing individual rights ‘secured’ elsewhere, i.e., rights independently ‘secured by the Constitution and laws’ of the United States”); Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617, 99 S.Ct.

Westside Mothers v. Olszewski, 368 F.Supp.2d 740 (2005)
Med & Med GD (CCH) P 301,637
1905, 60 L.Ed.2d 508 (1979) (“One cannot go into court and claim a ‘violation of § 1983’—for § 1983 by itself does not protect anyone against anything.”).
In Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), the Supreme Court interpreted the “and laws” language in the statute and held that § 1983 may be used to enforce violations of certain rights created by federal statutes as well as rights created by the Constitution.1 The Maine Court ignored the scanty legislative history associated with the addition of the “and laws” language, recognizing that § 1983 could be used to enforce federal rights created in favor of individual persons by statute. However, the Supreme Court has emphasized that “in order to seek redress through § 1983, ... a plaintiff must assert the violation of a federal right, not merely a violation of *747 federal law.” Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997); see also Gonzaga, 536 U.S. at 283, 122 S.Ct. 2268 (quoting Blessing ).2 Federal statutes, however, will not give rise to federal rights enforceable by an individual under § 1983 if (1) “the statute [does] not create enforceable rights, privileges, or immunities within the meaning of § 1983,” or (2) “Congress has foreclosed such enforcement ... in the enactment itself.” Wright v. Roanoke Redevelopment and Hous. Auth., 479 U.S. 418, 423, 107 S.Ct. 766, 93 L.Ed.2d 781 (1987).
In Blessing v. Freestone, the Supreme Court identified three “factors” to guide a court’s inquiry into whether or not a statute confers an individual federal right: (1) “Congress must have intended that the provision in question benefit the plaintiff;” (2) “the plaintiff must demonstrate that the right assertedly protected by the statute is not so ‘vague and amorphous’ that its enforcement would strain judicial resources;” and (3) “the provision giving rise to the asserted right must be couched in mandatory, rather than precatory, terms.” Blessing, 520 U.S. at 340–41, 117 S.Ct. 1353; Banks v. Dallas Hous. Auth., 271 F.3d 605, 609 (5th Cir.2001). Although courts in the Sixth Circuit have historically applied the three factors identified in Blessing as a “three-part test,”3 the Supreme Court recently resolved the confusion that such a “test” has caused in determining whether Congress unambiguously conferred rights on individuals to support a cause of action under § 1983. Gonzaga, 536 U.S. at 283, 122 S.Ct. 2268.
In Gonzaga, the Court considered whether the Family Educational Rights and Privacy Act (“FERPA”) creates a federal right enforceable by individuals under 42 U.S.C. § 1983. In examining the text and structure of the statutory
5

language relied on by the plaintiff, the court held that FERPA’s nondisclosure provisions did not create federal rights actionable under § 1983. Id. at 290, 122 S.Ct. 2268. In finding that Congress did not create federal rights, the Court determined that FERPA’s nondisclosure provisions “contain no rights-creating language,” “have an aggregate, not individual focus,” and “serve primarily to direct the Secretary of Education’s distribution of public funds.” Id.
The Gonzaga Court tightened and clarified the requirements that must be met before a court may declare that Congress created a federal right enforceable under § 1983 in two fundamental aspects. First, the Supreme Court clarified the conflict between the Court’s implied right of action *748 cases and its cases focusing on enforceable federal rights under § 1983. The Court rejected “the notion that our implied right of action cases are separate and distinct from our § 1983 cases.” “To the contrary, our implied right of action cases should guide the determination of whether a statute confers rights enforceable under § 1983.” Id. at 283, 122 S.Ct. 2268. The court further explained,
We have recognized that whether a statutory violation may be enforced through § 1983 “is a different inquiry than that involved in determining whether a private right of action can be implied from a particular statute.” Wilder, supra, at 508, n. 9, 496 U.S. 498, 110 S.Ct. 2510, 110 L.Ed.2d 455. But the inquiries overlap in one meaningful respect—in either case we must first determine whether Congress intended to create a federal right. Thus we have held that “[t]he question whether Congress ... intended to create a private right of action [is] definitively answered in the negative” where a “statute by its terms grants no private rights to any identifiable class.” Touche Ross & Co. v. Redington, 442 U.S. 560, 576, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979). For a statute to create such private rights, its text must be “phrased in terms of the persons benefited.” Cannon v. University of Chicago, 441 U.S. 677, 692, n. 13, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). We have recognized, for example, that Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972 create individual rights because those statutes are phrased “with an unmistakable focus on the benefited class.” Id., at 691, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (emphasis added). But even where a statute is phrased in such explicit rights-creating terms, a plaintiff suing under an implied right of action still must show that the statute manifests an intent “to create not just a private right but also a

Westside Mothers v. Olszewski, 368 F.Supp.2d 740 (2005)
Med & Med GD (CCH) P 301,637
private remedy.” Alexander v. Sandoval, 532 U.S. 275, 286, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001).
Id. at 283–84, 122 S.Ct. 2268 (emphases added). The Court has made it clear that “[a] court’s role in discerning whether personal rights exist in the § 1983 context should ... not differ from its role in discerning whether personal rights exist in the implied right of action context.” Id. at 285, 122 S.Ct. 2268.
Second, the Court clarified the judicial role and the proper inquiry for courts in determining whether statutes create enforceable rights under § 1983. The Court reviewed its prior cases involving federal spending clause legislation and determined that a court’s fundamental role is to determine whether Congress has created new federal rights unambiguously based on the text and structure of a statute. Id. at 283–91, 122 S.Ct. 2268.
The first step the court must take is determining “whether Congress intended to create a federal right.” Id. at 283, 122 S.Ct. 2268; see also Sabree v. Richman, 367 F.3d 180, 189–192 (3d Cir.2004) (Gonzaga analysis starts with examining statutory text and structure); Long Term Care Pharmacy Alliance, 362 F.3d at 57–58; Schmitt v. City of Detroit, 267 F.Supp.2d 718, 721 (E.D.Mich.2003). Such an intent will be clear from statutory text “phrased in terms of the persons benefited,” which employs “explicit rights-creating language.” Gonzaga, 536 U.S. at 284, 122 S.Ct. 2268.
The Gonzaga Court concluded “where 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 284, 122 S.Ct. 2268; *749 Alexander v. Sandoval, 532 U.S. 275, 288, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001) ( “statutes that focus on the person regulated rather than the individuals protected create ‘no implication of an intention to confer rights on a particular class of persons.’ ”).
Furthermore, the Court rejected the argument that federal rights were created by federal statutes so long as Congress “intended that the statute ‘benefit’ putative plaintiffs.” Id. at 282, 121 S.Ct. 1511. “The question is not simply who would benefit from the [statute], but whether Congress intended to confer rights upon those beneficiaries.” California v. Sierra Club, 451 U.S. 287, 294, 101 S.Ct. 1775, 68 L.Ed.2d 101 (1981). As the Gonzaga Court stated, “it is rights, not the broader or vaguer ‘benefits’ or ‘interests,’ that may be enforced under the authority of [§
6

1983].” Gonzaga, 536 U.S. at 283, 122 S.Ct. 2268; see also Hughlett, 98 Fed.Appx. at 364 n. 3 (rights-creating language is critical to Congressional intent to create new federal rights).
B. Gonzaga, Unambiguously Conferred Rights, and Rights–Creating Language
Following the lead of a recent detailed opinion by the Third Circuit in Sabree v. Richman, 367 F.3d 180 (3d Cir.2004), the court finds it important to examine Gonzaga and the Court’s cases harmonized therein to determine what type of statutory language and structure unambiguously confer rights and what type of language constitutes “rights-creating language.” See Sabree, 367 F.3d at 183–93 (examining the essential characteristics of an “unambiguously conferred right” under Gonzaga ).
“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. v. Halderman, 451 U.S. 1, 28, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981). Notwithstanding this general principle made clear in Pennhurst, the Supreme Court has ruled that “in some instances Congress has unambiguously conferred rights that may be vindicated by individuals suits brought under § 1983.” Sabree, 367 F.3d at 183 (citing Gonzaga ).
Only twice since Pennhurst, however, has the Supreme Court found congressional intent in spending legislation to confer enforceable rights under § 1983, first in Wright v. Roanoke Redevelopment & Housing Auth., 479 U.S. 418, 107 S.Ct. 766, 93 L.Ed.2d 781 (1987) and then in Wilder v. Virginia Hospital Ass’n, 496 U.S. 498, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990). Gonzaga, 536 U.S. at 280, 122 S.Ct. 2268.
In Wright, the Court allowed a § 1983 suit by tenants to recover past overcharges under a rent-ceiling provision of the Public Housing Act. The Court’s decision rested on the ground that the statutory provision at issue “unambiguously conferred ‘a mandatory [benefit] focusing on the individual family and its income.’ ” Id. (quoting Wright, 479 U.S. at 430, 107 S.Ct. 766.)4 The

Westside Mothers v. Olszewski, 368 F.Supp.2d 740 (2005) Med & Med GD (CCH) P 301,637
Court found that “Congress *750 spoke in terms that ‘could not be clearer’ ibid., and conferred entitlements ‘sufficiently specific and definite to qualify as enforceable rights under Pennhurst.’ ” Id. Also significant was the lack of a procedure by which tenants could complain. Id.
Second, in Wilder v. Virginia Hospital Ass’n, the Supreme Court permitted a § 1983 suit brought by health care providers to enforce a reimbursement provision found in the Medicaid Act, Title XIX of the Social Security Act, the Title at issue in this case. The Court allowed the individual providers to employ § 1983 to enforce rights because “much like the rent-ceiling provision in Wright, [the reimbursement provision of the Medicaid Act 42 U.S.C. § 1396a(1)(13) (1982 ed., Supp. V.) ] explicitly conferred specific monetary entitlements upon the plaintiffs.” Id. The text of the reimbursement provision 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).
“Congress left no doubt of its intent for private enforcement, we said ... because the provision required States to pay an ‘objective’ monetary entitlement to
7

individual health care providers, with no sufficient administrative means of enforcing the requirement against States that failed to comply.” Gonzaga, 536 U.S. at 280–81, 122 S.Ct. 2268.
The Gonzaga court also examined “more recent decisions [that] have rejected attempts to infer enforceable rights from Spending Clause statutes.” Id. at 281, 122 S.Ct. 2268. In Suter v. Artist M., 503 U.S. 347, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992), the Court foreclosed an action under § 1983 filed on behalf of a class of parents and children who sought to enforce provisions of the Adoption Assistance and Child Welfare Act. That Act required states to have a “plan” to “make reasonable efforts to keep children out of foster homes.” Id.; 42 U.S.C. § 671(a)(3), (15) (1988 ed. & Supp. I). The Suter Court 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. at 363, 112 S.Ct. 1360 (quoted approvingly by Gonzaga Univ., 536 U.S. at 281, 122 S.Ct. 2268).
In Blessing v. Freestone, the Supreme Court also rejected a § 1983 claim brought by five mothers whose children were eligible *751 to receive child support services from the State of Arizona under Title IV–D of the Social Security Act. Title IV–D required States receiving federal child-welfare funds to “substantially comply” with requirements designed to ensure timely payment of child support. Gonzaga, 536 U.S. at 281, 122 S.Ct. 2268; 42 U.S.C. §§ 651–69 (1996). 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 in Title IV–A. Blessing, 520 U.S. at 333, 117 S.Ct. 1353. The Blessing Court held that 42 U.S.C. § 609(a)(8), a provision within

Westside Mothers v. Olszewski, 368 F.Supp.2d 740 (2005)
Med & Med GD (CCH) P 301,637
Title IV–D authorizing the Secretary of Health and Human Services to reduce payments to a state that does not “substantially comply” with Title IV–D, did not give rise to individual rights actionable under 42 U.S.C. § 1983. Blessing, 520 U.S. at 344, 117 S.Ct. 1353. The Court explained,
As best we can tell, the Court of Appeals seemed to think that respondents had a right to require the Director of Arizona’s child support agency to bring the State’s program into substantial compliance with Title IV–D. But the requirement that a State operate its child support program in “substantial compliance” with Title IV–D was not intended to benefit individual children and custodial parents, and therefore it does not constitute a federal right. Far from creating an individual entitlement to services, the standard is simply a yardstick for the Secretary to measure the systemwide performance of a State’s Title IV–D program. Thus, the Secretary must look to the aggregate services provided by the State, not to whether the needs of any particular person have been satisfied.
. . . . .
The Court of Appeals erred not only in finding that individuals have an enforceable right to substantial compliance, but also in taking a blanket approach to determining whether Title IV–D creates rights. It is readily apparent that many other provisions of that multifaceted statutory scheme do not fit our traditional three criteria for identifying statutory rights. To begin with, many provisions, like the “substantial compliance” standard, are designed only to guide the State in structuring its systemwide efforts at enforcing support obligations. These provisions may ultimately benefit individuals who are eligible for Title IV–D services, but only indirectly.
Id. at 344–45, 117 S.Ct. 1353.
The Gonzaga Court explained the Blessing holding as follows: “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, 122 S.Ct. 2268, 153 L.Ed.2d 309 (quoting Blessing, 520 U.S. at 340, 117 S.Ct. 1353 (emphasis in
8

original)).
The Blessing Court did not foreclose the possibility that specific provisions in Title IV–D of the Act might create enforceable rights in individuals. Blessing, 520 U.S. at 345, 117 S.Ct. 1353 (“We do not foreclose the possibility that some provisions of Title IV–D give rise to individual rights. The lower court did not separate out the particular rights it believed arise from the statutory scheme, and we think the complaint is less than clear in this regard.”) “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.” Sabree, 367 F.3d at 187 (citations omitted). The Blessing *752 court ultimately remanded the case for the district court to examine the specific claims and provisions of the statute to determine whether there exist specific enforceable rights.

In any event, 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. We

think that this defect is best

addressed by sending the case back

for the District Court to construe

the complaint in the first instance,

in order to determine exactly what

rights, considered in their most

concrete,

specific

form,

respondents are asserting. Only by

manageably breaking down the

complaint into specific allegations

can the District Court proceed to

determine whether any specific

claim asserts an individual federal

right.

Blessing, 520 U.S. at 346, 117 S.Ct. 1353.
To confer enforceable rights, Congress must employ “rights-creating language.” Gonzaga, 536 U.S. at 287, 122 S.Ct. 2268; see also Sandusky County Democratic Party v. Blackwell, 387 F.3d 565, 572 (6th Cir.2004) (finding unambiguous rights-creating language in §

Westside Mothers v. Olszewski, 368 F.Supp.2d 740 (2005)
Med & Med GD (CCH) P 301,637
302(a)(2) of the Help America Vote Act, Pub.L. 107–252. Title III, § 302, 116 Stat. 1706 (codified at 42 U.S.C. § 15301 et seq.)); Sabree, 367 F.3d at 187 (discussing “rights-creating language”); S.D. ex rel Dickson v. Hood, 391 F.3d 581, 602–03 (5th Cir.2004) (“[c]ritical to this inquiry is whether the pertinent statute contains ‘rights-creating’ language”).
Rights-creating language “must clearly impart ‘an individual entitlement,’ and have an ‘unmistakable focus on the benefited class’ ” as gleaned from the text and structure of the statutory provision enacted. Sabree, 367 F.3d at 187 (quoting Gonzaga, 536 U.S. at 287, 122 S.Ct. 2268); Long Term Care Pharmacy Alliance v. Ferguson, 362 F.3d 50, 57 (1st Cir.2004) (“rights creating language” and identification of a discrete class of beneficiaries are “two touchstones” in the Gonzaga analysis). “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.’ ” Alexander v. Sandoval, 532 U.S. 275, 289, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001) (quoting California v. Sierra Club, 451 U.S. 287, 294, 101 S.Ct. 1775, 68 L.Ed.2d 101 (1981)); see also Johnson v. City of Detroit, 319 F.Supp.2d 756, 764 (E.D.Mich.2004) (examining rights-creating language).
As this court has explained before, Gonzaga also identified Title VI of the Civil Rights Act of 1964 and Title IX of the Educational Amendments of 1972 as statutes providing examples of rights-creating language.
Gonzaga highlighted the type of rights-creating language that confers a federal right on individuals by citing to the statutory language contained in Title VI of the Civil Rights Act of 1964 and Title IX of the Educational Amendments of 1972. Gonzaga, 536 U.S. at 283–84, 122 S.Ct. 2268, 153 L.Ed.2d 309. Title VI confers individual federal rights. It provides, in relevant part: “No person in the United States shall ... be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d (emphases added). Likewise, Title IX’s language created individual rights. It 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) (emphases added).
*753 Johnson, 319 F.Supp.2d at 764–65; see also Sabree, 367 F.3d at 187 (the Supreme Court has recognized “that Title VI of the Civil Rights Act of 1964 and Title IX of
9

the Education Amendments of 1973 create individual rights because those statutes are phrased ‘with an unmistakable focus on the benefited class’ ”).
It is with this guidance that the court must proceed to determine whether the specific provisions of the Medicaid Act that Plaintiffs have identified in their first amended complaint reflect an unambiguous congressional intent to confer individual federal rights enforceable under the “and laws” language of § 1983.
C. The Law of the Case Doctrine
Before reaching the specific provisions of the Medicaid statute in this case, however, the court must first address Plaintiffs’ argument that re-examination of whether Plaintiffs have enforceable rights under § 1983 is barred by the law of the case doctrine. (Pls.’ Resp. at 7–8.) “The law-of-the-case doctrine ‘posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.’ ” Scott v. Churchill, 377 F.3d 565, 569–70 (quoting Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983)). This doctrine, however, merely directs a court’s discretion; it does not limit the tribunal’s power. Id.
The so-called “mandate rule” is a specific application of the law of the case doctrine. Id.; see also United States v. Campbell, 168 F.3d 263, 265 (6th Cir.1999) (“In essence, the mandate rule is a specific application of the law-of-the-case doctrine.”); Jones v. Lewis, 957 F.2d 260, 262 (6th Cir.1992). Under the mandate rule, “lower courts must adhere to the command of a superior court.” Brunet v. City of Columbus, 58 F.3d 251, 254 (6th Cir.1995). As the Brunet court noted,
[U]pon remand of a case for further proceedings after a decision by the appellate court, the trial court must proceed in accordance with the mandate and the law of the case as established on appeal. The trial court must implement both the letter and the spirit of the mandate, taking into account the appellate

Westside Mothers v. Olszewski, 368 F.Supp.2d 740 (2005)
Med & Med GD (CCH) P 301,637
court’s opinion and the circumstances it embraces.
Id. (quotations omitted); see also Allard Enters., Inc. v. Advanced Programming Res., Inc., 249 F.3d 564, 569–70 (6th Cir.2001). “As with all applications of the law of the case doctrine, the trial court may consider those issues not decided expressly or impliedly by the appellate court or a previous trail court.” Jones, 957 F.2d at 262 (citing Quern v. Jordan, 440 U.S. 332, 347 n. 18, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979)).
At first glance, the law of the case doctrine appears to preclude this court from considering on remand whether the Medicaid statutory provisions cited in Plaintiffs’ First Amended Complaint create enforceable rights under § 1983. The Sixth Circuit considered “[w]hether there is a private right of action under § 1983 for Plaintiffs’ claims.” Westside Mothers, 289 F.3d at 862–63. The Sixth Circuit held that the district court “erred when it did not apply [the three-part Blessing test] to evaluate plaintiffs’ claims.” Id. at 863. The appellate court went on to state:
We now apply [the Blessing ] test. First, the provisions were clearly intended to benefit the putative plaintiffs, children who are eligible for the screening and treatment services. See 42 U.S.C. § 1396a(a)(10)(A). “[I]t is well-settled that Medicaid-eligible children under the age of twenty-one ... are the intended beneficiaries of the [screening and treatment] provisions.” *754 Dajour B. v. City of New York, 2001 WL 830674, at *8 (S.D.N.Y. July 23, 2001); accord Miller v. Whitburn, 10 F.3d 1315, 1319 (7th Cir.1993). We have found no federal appellate cases to the contrary. Second, the provisions set a binding obligation on Michigan. They are couched in mandatory rather than precatory language, stating that Medicaid services “shall be furnished” to eligible children, 42 U.S.C. § 1396a(a)(8) (emphasis added), and that the screening and treatment provisions “must be provided,” id. § 1396a(a)(10)(A), see also 42 C.F.R. § 441.56 (mandatory language). Third, the provisions are not so vague and amorphous as to defeat judicial enforcement, as the statute and regulations carefully detail the specific services to be provided. See 42 U.S.C. § 1396d(r). Finally, Congress did not explicitly foreclose recourse to § 1983 in this instance, nor has it established any remedial scheme sufficiently comprehensive to supplant § 1983. See Blessing, 520 U.S. at 346–47, 117 S.Ct. 1353, 137 L.Ed.2d 569.
10

Plaintiffs have a cause of action under § 1983 for alleged noncompliance with the screening and treatment provisions of the Medicaid Act.
Id.5
Although earlier in its opinion the Circuit Court made reference to all of the statutory provisions of the Medicaid statute relied on by Plaintiffs in their original complaint, Westside Mothers, 289 F.3d at 856, the panel’s analysis and summary application of the “Blessing test” does not identify and discuss each specific statutory provision cited by Plaintiffs. Id. at 862–63; see also Blessing, 520 U.S. at 344, 117 S.Ct. 1353 (court of appeals “erred not only in finding that individuals have an enforceable right to substantial compliance, but also in taking a blanket approach to determining whether Title IV–D [of the Social Security Act] creates rights” and remanding for lower court “to determine exactly what rights, considered in their most concrete, specific form, respondents are asserting”). In fact, the court’s recorded analysis reflects only two of the specific Medicaid provisions cited by Plaintiffs as creating enforceable individual federal rights under § 1983, 42 U.S.C. § 1396a(a)(10)(A) and § 1396a(a)(8).
More importantly, the court’s decision on this issue was rendered prior to the Supreme Court’s ruling in Gonzaga University v. Doe which has significantly altered the necessary analysis under Blessing and its progeny. This court is not persuaded by Plaintiffs’ argument that the higher court’s application of the Blessing test demonstrates its “anticipation” of the Supreme Court’s clarifications and commands in Gonzaga. The analysis concludes that “the provisions were clearly intended to benefit the putative plaintiffs, children who are eligible for the screening and treatment services,” but does not contain an examination of the specific statutory language that creates an unmistakable focus on individuals. See Westside Mothers, 289 F.3d at 863. Nor is there identification of the “rights creating” language in the specific provisions at issue. See id.
To hold steadfast, under the law of the case doctrine, and to simply apply the Sixth Circuit’s conclusion that “Plaintiffs have a cause of action under § 1983 for *755 alleged noncompliance with the screening and treatment provisions of the Medicaid Act” would require this court to ignore intervening and controlling United States Supreme Court authority which has altered the analysis, at least in applying the first Blessing factor, for all federal courts. See Long Term Care Pharmacy Alliance v.

Westside Mothers v. Olszewski, 368 F.Supp.2d 740 (2005)
Med & Med GD (CCH) P 301,637
Ferguson, 362 F.3d 50, 57 (1st Cir.2004) (finding that Gonzaga “charted a firm course among prior Supreme Court precedents in some tension” compelling reexamination of a prior panel decision and noting that “[a]n intervening Supreme Court decision trumps the usual rule that a panel decision is to be followed by a successor panel.”). The Sixth Circuit itself has recognized and applied the additional analysis required in the wake of Gonzaga. See Sandusky County Democratic Party v. Blackwell, 387 F.3d 565, 572 (6th Cir.2004) (finding that “the rights-creating language of HAVA [the Help America Vote Act] § 302(a)(2) is unambiguous”).
The law of the case doctrine is not so rigid that it forecloses the court from considering each statutory provision in light of Gonzaga ‘s command requiring “rights creating language.” See Leggett v. Badger, 798 F.2d 1387, 1390 (11th Cir.1986) (district court acted properly in refusing to enforce a mandate that was inconsistent with an intervening change in the law announced by Supreme Court); Morrow v. Dillard, 580 F.2d 1284, 1297 (5th Cir.1978) (proper for the district court to conclude that an intervening Supreme Court decision had superseded the basis for the decision of the court of appeals); see also United States v. Bell, 988 F.2d 247, 251 & n. 2 (1st Cir.1993). In Bell, the court noted:
Even where, as here, an appellate court’s mandate does not contemplate resurrecting an issue on remand, the trial court may still possess some limited discretion to reopen the issue in very special situations. See id. at 150–52; Cochran v. M & M Transp. Co., 110 F.2d 519, 521 (1st Cir.1940). After all, the so-called “mandate rule,” generally requiring conformity with the commands of a superior court on remand, is simply a specific application of the law of the case doctrine and, as such, is a discretion-guiding rule subject to an occasional exception in the interests of justice. See, e.g., Johnson v. Uncle Ben’s, Inc., 965 F.2d 1363, 1370 (5th Cir.1992), petition for cert. filed, 61 U.S.L.W. 3356 (U.S. Sept. 29, 1992) [No. 92–737]; Jones v. Lewis, 957 F.2d 260, 262 (6th Cir.), cert. denied, 506 U.S. 841, 113 S.Ct. 125, 121 L.Ed.2d 80 (1992); United States v. Miller, 822 F.2d 828, 832–33 (9th Cir.1987); Piambino v. Bailey, 757 F.2d 1112, 1119–20 (11th Cir.1985), cert. denied, 476 U.S. 1169, 106 S.Ct. 2889, 90 L.Ed.2d 976 (1986); Continental Bank & Trust Co. v. American Bonding Co., 630 F.2d 606, 608 (8th Cir.1980); Cleveland v. FPC, 561 F.2d 344, 348 (D.C.Cir.1977); Banco Nacional De Cuba v. Farr, 383 F.2d 166, 178 (2d Cir.1967), cert. denied, 390 U.S. 956, 88 S.Ct. 1038, 19 L.Ed.2d 1151 (1968); see also
11

Kotler, 981 F.2d at 13 (on remand, lower court ordinarily retains the “naked power to reexamine” a closed issue, but should exercise such power “sparingly and only when ... necessary to avoid extreme injustice”). In other words, because the law of the case doctrine is a rule of policy and practice, rather than a jurisdictional limitation, it may tolerate a “modicum of residual flexibility” in exceptional circumstances. Rivera–Martinez, 931 F.2d at 151; see also Cochran, 110 F.2d at 521 (warning against allowing the law of the case doctrine to become an instrument of injustice).
Id.
Simply put, Gonzaga adds another required layer to the analysis which was neither addressed nor decided in the Circuit’s *756 written opinion. See Sabree v. Richman, 367 F.3d 180, 189 (3d Cir.2004) (“[O]ur inquiry does not end [after applying the Blessing test] because, as 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; something less than what is required for a statute to create rights enforceable directly from the statute itself ...’ ”) (citation omitted). The court concludes that examining each specific statutory provision at issue as directed by the Supreme Court in light of Gonzaga is justified under the current circumstances reflecting a significant change in controlling Supreme Court precedent. This conclusion is warranted, notwithstanding the court’s ordinary duty to follow rigidly the appellate court’s mandate.
Plaintiffs’ argument to the contrary is not persuasive. Plaintiffs argue that the Sixth Circuit’s finding that the statutes were “clearly intended to benefit the putative plaintiffs” ends the inquiry. This argument, however, ignores the Supreme Court’s command in Gonzaga. In addition, Plaintiffs cite two cases supporting their argument, Johnson v. City of Detroit, 319 F.Supp.2d 756, 771 n. 8 (E.D.Mich.2004) and Franklin v. Francis, 36 F.Supp.2d 1008, 1011 (S.D.Ohio 1999).
Plaintiffs claim that “regardless of any new arguments defendants may make and any ‘questions whether the Sixth Circuit’s decisions on this issue remain viable in light of recent Supreme Court precedent,’ as in Johnson, this Court should ‘continue to apply the Sixth’s Circuit’s approach until it is overruled.’ ” (Pls.’ Resp. at 7–8 (citing Johnson, 319 F.Supp.2d at 771).) This argument reflects either a misunderstanding or mischaracterization of the circumstances confronting the court in Johnson.

Westside Mothers v. Olszewski, 368 F.Supp.2d 740 (2005) Med & Med GD (CCH) P 301,637
In the portion of Johnson v. City of Detroit cited by Plaintiffs, this court detailed the circuit split on the issue of whether federal regulations alone (as opposed to regulations that are consistent with statutory rights) may create enforceable rights under § 1983. Johnson, 319 F.Supp.2d. at 770–71. After noting that the Supreme Court had not directly resolved this issue, the court detailed the position taken by a majority of the Circuit Courts of Appeal, but not adopted by the Sixth Circuit. Id. After noting more persuasive cases from sister circuits rejecting the Sixth Circuit’s rule, the court applied the prevailing rule in this circuit, permitting regulations to create enforceable rights by their own accord. Id.; see Loschiavo v. City of Dearborn, 33 F.3d 548, 551 (6th Cir.1994); Levin v. Childers, 101 F.3d 44, 47 (6th Cir.1996). The court followed mandatory circuit court precedent precisely because the Supreme Court had not addressed the issue and prior circuit precedent was binding. Here, the Supreme Court, in Gonzaga, has held that there is at least more analysis required in applying the first Blessing factor. There is no question that only “unambiguously conferred” rights will support a § 1983 action. Gonzaga, 536 U.S. at 283, 122 S.Ct. 2268; Sandusky County Democratic Party v. Blackwell, 387 F.3d 565, 572 (6th Cir.2004).
Franklin merely notes the unremarkable proposition that the district court is generally bound by the terms of an appellate ruling. It says nothing of intervening changes in the law announced by the U.S. Supreme Court. Accordingly, the court turns to Defendants’ Gonzaga arguments.
D. Plaintiffs’ Count I “Failure to Provide Healthcare to all Eligible Children”
“The Medicaid Act is ... a large and complex statute, and whether plaintiffs *757 seeking to enforce a federal right under the Medicaid Act can meet this requirement depends on which statutory provisions they rely.” Frazar v. Gilbert, 300 F.3d 530, 539 (5th Cir.2002), rev’d on other grounds, 540 U.S. 431, 124 S.Ct. 899, 157 L.Ed.2d 855 (2004).6 “Only by manageably breaking down the complaint into specific allegations can the District Court proceed to determine whether any specific claim asserts an individual federal right” enforceable under § 1983. Blessing, 530 U.S. at 330–31, 120 S.Ct. 2246.
12

In Count I, Plaintiffs claim that Defendants have refused or failed to provide “medical assistance” with “reasonable promptness” to “all eligible individuals” in violation of 42 U.S.C. §§ 1396a(a)(8) and (a)(10), as defined by 42 U.S.C. § 1396d(a) and (r). (Pls.’ First Amend. Compl. at ¶¶ 47–48.) The court will examine Plaintiffs’ claim in Count I in two stages. First, it will examine whether these specific provisions of the Medicaid Act create enforceable rights under § 1983. Second, if so, the court will examine the scope of such rights and to what extent Plaintiffs have stated a claim upon which relief may be granted on those rights.
1. Whether §§ 1396a(a)(8) and (a)(10) Create Enforceable Rights in Plaintiffs Statutory interpretation always begins with the text. Hoge v. Honda of America Mfg., Inc., 384 F.3d 238, 246 (6th Cir.2004) (quoting Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409, 113 S.Ct. 2151, 124 L.Ed.2d 368 (1993) (“The starting point in interpreting a statute is its language, for ‘[i]f the intent of Congress is clear, that is the end of the matter.’ ”)).
Section 1396a(a) describes the contents of “a State plan for medical assistance” under Title XIX. Specifically, § 1396a(a)(8), the “reasonable promptness” provision and § 1396a(a)(10)(A) provide:
(a) Contents
A State plan for medical assistance must—
. . . . .
(8) provide that all individuals wishing to make application for medical assistance under the plan shall have the opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible individuals;
. . . . .
(10) provide—
(A) for making medical assistance available, including at least the care and services listed in paragraphs (1) through (5), (17) and (21) of section 1396d(a) of this title to (i) all individuals

Westside Mothers v. Olszewski, 368 F.Supp.2d 740 (2005) Med & Med GD (CCH) P 301,637
[who meet certain requirements]
42 U.S.C. § 1396a(a).
The term “medical assistance” as used in §§ 1396a(a)(8) and (a)(10) is defined at 42 U.S.C. § 1396d(a). That Section provides, in relevant part:
(a) Medical Assistance
The term “medical assistance” means payment of part or all of the cost of the *758 following care and services ... to individuals ... who are
(i) under the age of 21, or at the option of the State, under the age of 20, 19, or 18 as the State may choose
... [omitted here is a list of remaining eligible individuals] but whose income and resources are insufficient to meet all of such cost—
(1) inpatient hospital services (other than services in an institution for mental diseases);
(2) (A) outpatient hospital services, (B) consistent with State law
permitting such services, rural health clinic services (as defined in subsection (I)(1) of this section) and any other ambulatory services which are offered by a rural health clinic (as defined in subsection (I)(1) of this section) and which are otherwise included in the plan, and (C) Federally-qualified health center services (as defined in subsection (I)(2) of this section) and any other ambulatory services offered by a Federally-qualified health center and which are otherwise included in the plan;
(3) other laboratory and X-ray services;
(4) (A) nursing facility services (other than services in an institution for mental diseases) for individuals 21 years of age or older; (B) early and periodic screening, diagnostic, and treatment services (as defined in subsection (r) of this section) for individuals who are eligible under the plan and are under the age of 21; and (C) family planning services and supplies furnished (directly or under arrangements with others) to individuals of child-bearing age (including minors who can be considered to be sexually active) who are eligible under the State plan and who desire such services
13

and supplies ....
42 U.S.C. § 1396d(a) (emphasis added).
Subsection (r) defines “early and periodic screening, diagnostic and treatment” (EPSDT) services as follows:
The term “early and periodic screening, diagnostic, and treatment services” means the following items and services:
(1) Screening services—
(A) which are provided—
(i) at intervals which meet reasonable standards of medical and dental practice, as determined by the State after consultation with recognized medical and dental organizations involved in child health care and, with respect to immunizations under subparagraph (B)(iii), in accordance with the schedule referred to in section 1396s(c)(2)(B)(i) of this title for pediatric vaccines, and
(ii) at such other intervals, indicated as medically necessary, to determine the existence of certain physical or mental illnesses or conditions; and
(B) which shall at a minimum include—
(i) a comprehensive health and developmental history (including assessment of both physical and mental health development),
(ii) a comprehensive unclothed physical exam,
(iii) appropriate immunizations (according to the schedule referred to in section 1396s(c)(2)(B)(i) of this title for pediatric vaccines) according to age and health history,
(iv) laboratory tests (including lead blood level assessment appropriate for age and risk factors), and
*759 (v) health education (including anticipatory guidance).
(2) Vision services—
(A) which are provided—
(i) at intervals which meet reasonable standards of medical practice, as determined by the State after

Westside Mothers v. Olszewski, 368 F.Supp.2d 740 (2005) Med & Med GD (CCH) P 301,637
consultation with recognized medical organizations involved in child health care, and
(ii) at such other intervals, indicated as medically necessary, to determine the existence of a suspected illness or condition; and
(B) which shall at a minimum include diagnosis and treatment for defects in vision, including eyeglasses.
(3) Dental services—
(A) which are provided—
(i) at intervals which meet reasonable standards of dental practice, as determined by the State after consultation with recognized dental organizations involved in child health care, and
(ii) at such other intervals, indicated as medically necessary, to determine the existence of a suspected illness or condition; and
(B) which shall at a minimum include relief of pain and infections, restoration of teeth, and maintenance of dental health.
(4) Hearing services—
(A) which are provided—
(i) at intervals which meet reasonable standards of medical practice, as determined by the State after consultation with recognized medical organizations involved in child health care, and
(ii) at such other intervals, indicated as medically necessary, to determine the existence of a suspected illness or condition; and
(B) which shall at a minimum include diagnosis and treatment for defects in hearing, including hearing aids.
(5) Such other necessary health care, diagnostic services, treatment, and other measures described in subsection (a) of this section to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the State plan.
Nothing in this subchapter shall be construed as limiting providers of early and periodic screening,
14

diagnostic, and treatment services to providers who are qualified to provide all of the items and services described in the previous sentence or as preventing a provider that is qualified under the plan to furnish one or more (but not all) of such items or services from being qualified to provide such items and services as part of early and periodic screening, diagnostic, and treatment services. The Secretary shall, not later than July 1, 1990, and every 12 months thereafter, develop and set annual participation goals for each State for participation of individuals who are covered under the State plan under this subchapter in early and periodic screening, diagnostic, and treatment services.
42 U.S.C. § 1396d(r) (emphasis added).
Other courts that have considered whether §§ 1396a(a)(8) and (a)(10) create individual federal rights in Medicaid recipients enforceable via § 1983 since the Court decided Gonzaga have come to contrary conclusions. Compare Sabree, 367 F.3d at 190 (finding unmistakable individual focus in §§ 1396a(a)(8), (a)(10), and (a)(15) and concluding that, although the more general Medicaid Act provisions at § 1396 and § 1396c do not contain rights-creating language, they do not foreclose a finding of such enforceable rights in the *760 more specific provisions of §§ 1396a(a)(8) & (a)(10)); S.D. ex rel Dickson, 391 F.3d at 603 (“EPSDT care and services are listed in paragraph 4 of § 1396d(a) and, by reference to § 1396d(r), include all the health care, treatment, services, and other measures described in § 1396d(a) when necessary for corrective or ameliorative purposes. [The language of §§ 1396a(a)(10)(A)(i), 1396d(a), and 1396d(r) ] is precisely the sort of ‘rights-creating’ language identified in Gonzaga as critical to demonstrating a congressional intent to establish a new right.”); Mendez v. Brown, 311 F.Supp.2d 134, 140 (D.Mass.2004) (“sections 1396a(8), (10) and (17) all contain ‘rights creating’ language”); Clark v. Richman, 339 F.Supp.2d 631 (M.D.Pa.2004) (following Sabree and holding that these sections create enforceable rights to “medical assistance”); Bryson v. Shumway, 308 F.3d 79, 88 (1st Cir.2002) (concluding, without significant analysis in light of Gonzaga, that the reasonable promptness provision § 1396a(a)(8) creates enforceable rights); Memisovski v. Maram, No. 92 C 1982, 2004 WL 1878332, at *9 (N.D.Ill. Aug.23, 2004) (EPSDT provisions found in Medicaid Act create enforceable rights to services); with M.A.C. v. Betit, 284 F.Supp.2d 1298, 1307 (D.Utah 2003) (reasonable promptness requirement of § 1396a(a)(8) does not contain explicit rights-creating language and merely places certain

Westside Mothers v. Olszewski, 368 F.Supp.2d 740 (2005)
Med & Med GD (CCH) P 301,637
conditions upon a state seeking Medicaid funding); Sanders v. Kansas Dep’t of Soc. and Rehabilitation Servs., 317 F.Supp.2d 1233, 1250 (D.Kan.2004) (noting that whether the language of § 1396a(a)(8) creates individual rights enforceable under § 1983 presents a close question and concluding that its language “creates a duty of the State to furnish ‘medical assistance’ with reasonable promptness,” but does not contain the explicit rights-creating language described in Gonzaga ). See also Frazar v. Gilbert, 300 F.3d 530, 544 (5th Cir.2002) (pre-Gonzaga decision finding that “[a]though relief under § 1983 for a violation of EPSDT provisions may be available, perfect state compliance with these provisions is not required” and “Congress did not intend that a court can require that a state participating in the Medicaid program must always provide every EPSDT service to every eligible person at all times.”); Bruggeman v. Blagojevich, 324 F.3d 906, 911 (7th Cir.2003) (42 U.S.C. § 1396a(a)(19) was “insufficiently definite to be justiciable, and in addition cannot be interpreted to create a private right of action, given the Supreme Court’s hostility, most recently and emphatically expressed in Gonzaga University v. Doe, to implying such rights in spending statutes.”)
Because the Sixth Circuit has already determined that §§ 1396a(a)(8) and (a)(10) satisfied the three Blessing factors unmodified by Gonzaga, the court turns to the issue of whether Congress unambiguously conferred rights on the children eligible for “medical assistance” under these provisions in light of the Court’s new command.
As the Sabree court correctly pointed out, the general language contained in 42 U.S.C. §§ 1396 and 1396c simply does not create enforceable individual rights. Sabree, 367 F.3d at 190, 191. The court explained,
The opening section of Title XIX–Section 1396–is the appropriations and general introductory statement of the Medicaid Act. As that Section 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: *761 “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, 101 S.Ct. 1531, 67 L.Ed.2d 694
15

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. 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, 117 S.Ct. 1353, 137 L.Ed.2d 569; Gonzaga Univ., 536 U.S. at 289, 122 S.Ct. 2268, 153 L.Ed.2d 309. Of course, in Blessing and Gonzaga University, such language counseled against the recognition of an unambiguously conferred right.
Id. at 191–92 (footnotes omitted).
Plaintiffs, however, rely on the more specific statutory provisions in the Medicaid Act found at §§ 1396a(a)(8) and (a)(10). Although this court does not share the conclusion that it is “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” found in Title VI and IX of the Civil Rights Act, the court does hold that the relevant provisions focus on eligible individuals and not solely on the entity regulated.
Gonzaga did not overrule Wilder, a case where the Court found, in a provision of the Medicaid Act similar to the ones at hand, congressional intent to create individual rights enforceable under § 1983. See Sabree, 367 F.3d at 194 (Alito, J., concurring) (“While the analysis and decision of the District Court [finding no rights-creating language (Sabree, 245 F.Supp.2d at 661) ] may reflect the direction that future Supreme Court cases in this area will take, currently binding precedent supports the decision of the Court.”).
As noted above, the important statutory language examined in Wilder provided:
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

Westside Mothers v. Olszewski, 368 F.Supp.2d 740 (2005)
Med & Med GD (CCH) P 301,637
(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). This language was sufficient to create enforceable rights because it required states to pay specific monetary entitlements to Medicaid providers. See Gonzaga, 536 U.S. at 280, 122 S.Ct. 2268 (“Congress left no doubt of its intent for private enforcement, we said, because the provision required States to pay an ‘objective’ monetary entitlement to individual health care providers, with no sufficient administrative means for enforcing the requirement *762 against States that failed to comply.”)
Likewise, § 1396a(a)(8) states that Michigan’s state plan “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.” Here, the statutory provision refers to identifiable benefits in the form of “medical assistance” and the language refers to eligible individuals, providing that the States must provide an opportunity for “all individuals wishing to make application for medical assistance.” The text goes on to require State plans to furnish “medical assistance” “with reasonable promptness” to those who make application and who are eligible. 42 U.S.C. § 1396a(a)(8).
Similarly, § 1396a(a)(10) requires that Michigan’s plan “provide for making medical assistance available, including at least the care and services listed in paragraphs (1) through (5), (17) and (21) of section 1396d(a) .. to all individuals [who qualify].” 42 U.S.C. § 1396a(10). The EPSDT services are included in §
16

1396d(a)(4)(B) and defined at § 1396d(r). Although this language is not the type of rights conferring language that would undoubtedly foreclose debate on this issue, it is sufficient in light of the Supreme Court’s continued approval of Wilder. This provision of the Medicaid Act refers to an identifiable benefit of “medical assistance” and identifies individuals who qualify as the benefited class. While a different conclusion might result if this court were writing on a clean slate, Gonzaga’s approval of § 1396a(a)(13) in Wilder results in the conclusion that Plaintiffs may sue Defendants under 42 U.S.C. § 1983 to obtain the “medical assistance” for which they qualify. See Sabree, 367 F.3d at 192 (“Our confidence in this conclusion [that §§ 1396a(a)(8) and (a)(10) create enforceable rights via § 1983] rests securely on the fact that the Court has refrained from overruling Wright and Wilder.”).
This conclusion then leads the court to the next disputed issue; what constitutes “medical assistance?” See, e.g., id. at 181 n. 1 (noting an apparent disagreement among circuit courts as to whether a State must provide financial assistance or actual medical services themselves and that “[t]he only issue before us, however, is whether plaintiffs may sue Pennsylvania under 42 U.S.C. § 1983 to obtain the ‘assistance’ for which they qualify,” and leaving the district court to consider the appropriate remedy for a violation of the provisions).
2. Scope of Enforceable Rights to “Medical Assistance” Defendants argue that Plaintiffs dispute the extent to which Medicaid recipients are receiving actual EPSDT medical services and claim “a right to compel Defendants to ensure 100% recipient participation in EPSDT screening” and, therefore, have no private right of action to enforce such a claim under §§ 1396a(a)(8) and (a)(10). During oral argument on Defendants’ motion, Plaintiffs’ counsel argued that “medical assistance” includes the provision of actual medical services and is not limited to payment for such services. This argument creates two issues with regard to the scope of rights enforceable under § 1983.
First, it raises the issue of whether eligible medicaid recipients are entitled to financial assistance or to have the state provide actual medical services. This issue turns on the meaning of “medical assistance” as that term is used

Westside Mothers v. Olszewski, 368 F.Supp.2d 740 (2005)
Med & Med GD (CCH) P 301,637
in § 1396a(a) and defined by Congress at § 1396d(a).
Second, Defendants’ argument raises the issue of whether Plaintiffs have an enforceable right under these Medicaid provisions to compel a participating State *763 to undertake efforts to make all “medical assistance” available to every state citizen who might be eligible or whether the enforceable rights are limited to those individuals who qualify for and have been denied “medical assistance.”
Citing 42 U.S.C. § 1396d(a) & (r), Plaintiffs’ first cause of action avers that “medical assistance” includes more than payment and means “regular check-ups at intervals determined by the state after consultation with medical and dental organizations,” “diagnoses, then treatment and then other measures to correct or ameliorate ... defects and physical and mental illnesses and conditions” etc. (See Pls.’ First Amend. Compl. at ¶¶ 45–46.) On the other hand, Defendants argue “medical assistance” means payment for medical services and “at best only imposes a duty to pay for covered medical services[;] It does not impose any requirement on the state to directly provide any medical service.” (Defs.’ Mot. Br. at 10–11; Defs.’ Reply at 12.)
There appears to be disagreement among courts as to whether “medical assistance” includes payment for covered services or provision of those services. Many courts have presumed that “medical assistance” includes provision of services to which a state is obligated to provide under § 1396a(a). See, e.g., S.D. ex rel Dickson, 391 F.3d at 596 (“For all of the foregoing reasons, we conclude that LDHH violated the Medicaid Act by denying S.D. a service described in § 1396d(a) that is necessary for ameliorative purposes under the EPSDT program.” (citing § 1396d(r)(5))); Bryson v. Shumway, 308 F.3d 79, 81 (1st Cir.2002); Doe v. Chiles, 136 F.3d 709, 714 (11th Cir.1998).
Other courts, after examining the statutory text, have concluded that “medical assistance” as defined by § 1396d(a) refers only to financial assistance associated with covered medical treatment and services. See, e.g., Bruggeman v. Blagojevich, 324 F.3d 906, 910 (7th Cir.2003) (“the statutory reference to ‘assistance’ appears to have reference to financial assistance rather than to actual medical services”); Clark v. Richman, 339 F.Supp.2d 631, (M.D.Pa.2004); Sanders v. Kansas Dep’t of Soc. and Rehabilitation Servs., 317 F.Supp.2d 1233, 1250 (D.Kan.2004).
17

To the extent that Plaintiffs’ Count I alleges a failure by Defendants in their official capacity to ensure the actual provision of, or arrangement for, medical services, it fails to state a claim. A plain reading of § 1396a(a)(10) and § 1396d(a) supports the conclusion that Michigan is not required to provide medical services directly under §§ 1396a(a)(8) or (a)(10). “Medical assistance” means “payment of part or all of the cost of [listed] care and services.” 42 U.S.C. § 1396d(a)(emphasis added). See Bruggeman, 324 F.3d at 910; Clark, 339 F.Supp.2d at 641; Schott v. Olszewski,401 F.3d 682, 686 (6th Cir.2005) (“The Act defines ‘medical assistance’ as ‘payment of part or all of the cost of the [covered] care and services ... for individuals.’ § 1396d(a).”).
In Bruggeman, the Seventh Circuit reversed a district court’s holding that developmentally disabled individuals did not have standing to allege violations of certain provisions in the Medicaid Act including § 1396a(a)(8), the reasonable promptness provision. Bruggeman, 324 F.3d at 910. The plaintiffs included several mentally retarded adults who lived at home with their parents in the Chicago metropolitan area. The parents of these individuals would have preferred that their children live in institutions known as “Intermediate Care Facilities for the Developmentally Disabled,” (“ICF/DD”) most of which were concentrated in the southern part of Illinois, far from Chicago. Id. at 908–09. Relying on 42 U.S.C. §§ 1396a(a)(1), (a)(8), *764 (a)(10)(B)(i), (a)(19), and (a)(23), the plaintiffs wanted Illinois state officials to adopt a plan to expand the number ICF/DD in the northern part of the state. Id. at 909. The plaintiffs argued that the defendants preferred them living at home because it avoided additional costs for the State. They further alleged that the officials refused to write letters urging the authorization of additional ICF/DDs. Id.
According to the plaintiffs, this refusal to write letters prevented the authorization of additional facilities in the north and violated
provisions of the Medicaid statute requiring that “medical assistance ... shall be furnished with reasonable promptness to all eligible individuals,” that the state’s system of medical assistance to Medicaid patients “shall be in effect in all political subdivisions of the State,” that the assistance made available to any such patient “shall not be less in amount, duration, or scope than the medical assistance made available to any other such individual,” that any eligible individual “may obtain such assistance from any institution ... qualified to perform the ... services required ... who

Westside Mothers v. Olszewski, 368 F.Supp.2d 740 (2005)
Med & Med GD (CCH) P 301,637
undertakes to provide him such services,” and that “services will be provided in a manner consistent with ... the best interests of the recipients.”
Id. (citing 42 U.S.C. §§ 1396a(a)(1), (8), (10)(B)(i), (19), (23)).
After rejecting the lower court’s standing analysis, the Bruggeman court turned to the merits of the plaintiffs’ Medicaid claim, finding that the plaintiffs could not prevail on their claim under § 1396a(a)(8) for the provision of medical services.
The statutory entitlement to reasonable promptness of medical services (42 U.S.C. § 1396a(a)(8)) is not infringed by the maldistribution (as it seems to the plaintiffs) of ICF/DDs across the state. It is not as if the plaintiffs require relocation to such a facility on an emergency basis, in which event the remoteness of any such facility from their homes, where they are living at present, would deprive them of prompt treatment. Even if they did require emergency treatment, their theory of violation would be a considerable stretch because the 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). Medicaid is a payment scheme, not a scheme for state-provided medical assistance, as through state-owned hospitals. The regulations that implement the provision indicate that what is required is a prompt determination of eligibility and prompt provision of funds to eligible individuals to enable them to obtain the covered medical services that they need, see 42 C.F.R. §§ 435.911(a), .930(a)-(b); a
18

requirement of prompt treatment would amount to a direct regulation of medical services.
Id. (emphasis added).
In Clark, after finding that § 1396a(a)(10) created individual rights to “medical assistance” enforceable via § 1983, the court rejected the merits of plaintiffs’ claims based on this provision. Clark, 339 F.Supp.2d at 641. The reasoning of the Clark court (a case cited with approval by Plaintiffs in arguing that Congress created enforceable rights) follows:
A plain reading of § 1396a(a)(10)(A) supports [the defendant’s] interpretation [that it does not require the Commonwealth to provide services directly]. Section § 1396a(a)(10)(A) requires the Commonwealth to make “medical assistance” available to eligible individuals. “Medical assistance” means “payment of *765 part or all of the cost of [the enumerated types of] care and services.” 42 U.S.C. § 1396d(a) (emphasis added).
Section 1396a(a)(10)(A) arguably speaks of more than payment, though, as it requires the Commonwealth, through its MA program, to “provide for making medical assistance available, including at least the care and services listed in paragraphs (1) through (5), (17) and (21) of section 1396d(a)” available to eligible individuals. 42 U.S.C. § 1396a(a)(10)(A) (emphasis added). Obviously, the issue is whether the “including at least the care and services ....” language of § 1396a(a)(10)(A) expands the definition of “medical assistance” beyond simply payment for services to include actual provision of services.
We do not believe § 1396a(a)(10)(A) imposes an obligation on the Commonwealth to provide any services directly. The most reasonable interpretation of § 1396a(a)(10)(A) is that medical assistance, i.e., financial assistance, must be provided for at least the care and services listed in paragraphs (1) through (5), (17) and (21) of section 1396d(a). To read the provision any other way would mean that the definition of medical assistance would be expanded, for purposes of § 1396a(a)(10)(A) only, beyond mere financial assistance and would oblige states to directly provide services as well, which would run contrary to the entire scheme envisioned under Title XIX.
Id.

Westside Mothers v. Olszewski, 368 F.Supp.2d 740 (2005)
Med & Med GD (CCH) P 301,637
This court agrees. “Medical assistance” as defined by § 1396d(a) and used in §§ 1396a(a)(8) and (a)(10) does not require the direct provision of medical services. See also Sanders, 317 F.Supp.2d at 1250–51 (“[A]ssuming, arguendo, that the State’s duty [in § 1396a(a)(8) ] noted above gives rise to a correlative right of an eligible individual to receive ‘medical assistance’ in a reasonably prompt manner, plaintiff’s argument nonetheless fails because the statutory reference to ‘assistance’ appears to refer to ‘financial assistance’ rather than to actual medical services.”).
To the extent that Plaintiffs seek the provision of medical screening and other services directly from the state, they have failed to state a claim for violation of §§ 1396a(a)(8) and (a)(10) pursuant to 42 U.S.C. § 1983. The individual rights created by these provisions relate to “medical assistance” which was specifically defined by Congress to mean “payment of part or all of the cost of [specified services].” 42 U.S.C. § 1396d(a). Plaintiffs invite the court to look to the general structure of the Medicaid statute, arguing that the statutory definition of “medical assistance” means more than payment. The statute’s structure is not sufficient to trump the specific definition of the term expressly supplied by Congress at § 1396d(a).
This case also presents the issue of whether Plaintiffs have an enforceable right under the Medicaid provisions cited to compel a participating State to undertake efforts to make “medical assistance,” whatever its scope may be, available to every state citizen (or child in this case) who might be eligible for EPSDT services. The court agrees with Defendants that the enforceable rights created under §§ 1396a(a)(8) and (a)(10) to EPSDT services are limited to those individuals who qualify for and have been denied “medical assistance” relating to these services.
This issue was considered in detail by the Fifth Circuit Court of Appeals in the pre-Gonzaga decision of Frazar v. Gilbert, 300 F.3d 530 (5th Cir.2002). Although Frazar is a case very different from this one procedurally, it presents a case with very similar factual allegations.
*766 The plaintiffs in Frazar were mothers of children eligible for EPSDT services in Texas. Like the instant Plaintiffs, they filed a civil action under § 1983 seeking injunctive relief against responsible state officials (in their official capacity) at the state agency charged with implementing the Texas EPSDT program. Frazar, 300 F.3d at 533–34.
19

The plaintiffs complained that the Texas EPSDT program had failed to provide federally mandated services, and to meet the requirements of 42 U.S.C. §§ 1396a(a)(43) and 1396d(r), various federal regulations, and certain provisions of the State Medicaid Manual. Id. at 534. The plaintiffs specifically alleged that the Texas EPSDT program:
(1) did not have policies or procedures to assure that class members receive health, dental, vision, and hearing screens, (2) did not meet annual participation goals set by the Secretary of Health and Human Services, (3) did not effectively inform eligible persons of the availability of EPSDT services, (4) did not employ policies and procedures to provide or arrange for other necessary measures to correct or ameliorate physical and mental conditions discovered by the screening services, (5) did not provide case management services to all EPSDT recipients as needed, and (6) did not provide services uniformly in all political subdivisions of the State.
Id. The district court certified a class consisting of more than one million Texas children entitled to EPSDT services.
Following extensive settlement negotiations, the plaintiffs and state officials agreed to resolve their dispute by entering into a consent decree. Id. After conducting a fairness hearing, the district court approved the detailed agreement reflected in the parties’ consent decree. Id. at 535. Approximately two years later, the plaintiffs filed a motion to enforce the consent decree claiming that the state officials had not complied with numerous requirements to which they had agreed. The defendants objected to the district court’s jurisdiction to enforce the consent decree under § 1983, based on Eleventh Amendment grounds. Defendants argued that the plaintiffs failed to establish a violation of federal rights enforceable under § 1983 and that the Eleventh Amendment rendered the consent decree unenforceable

Westside Mothers v. Olszewski, 368 F.Supp.2d 740 (2005)
Med & Med GD (CCH) P 301,637
even if statutory noncompliance was established. Id. The district court rejected the State’s Eleventh Amendment argument and the defendants appealed.
On appeal, the Fifth Circuit ruled that the Eleventh Amendment prevented enforcement of the decree unless the violation of the consent decree was also a statutory violation of the Medicaid Act provisions which created enforceable rights under § 1983. Id. at 543. It ruled that the lower court had erred by concluding that “in enforcing the consent decree, the court [was] bound solely by its language,” and that “an interpretation of the decree must be based strictly on the language of the decree, and not on the legal requirements of the Medicaid Act, except to the extent that those requirements are clearly imported by the language of the decree.” Id. at 537. The Fifth Circuit then conducted an analysis of the Medicaid provisions and the alleged violations of the consent decree, concluding that none of the purported violations provided a valid basis for enforcement. The Frazar court held that without a violation of federal law, the district court lacked jurisdiction to remedy the consent decree. Id.
The Supreme Court granted certiorari on this jurisdictional question. Frew v. Hawkins, 540 U.S. at 436, 124 S.Ct. 899. In resolving a circuit split on the issue, the Supreme Court reversed the Fifth Circuit, *767 holding that the consent decree was enforceable under Ex Parte Young. Id. at 436–37, 124 S.Ct. 899. The Court’s reversal, however, rested solely on the enforceability of the consent decree by the district court in the face of the Eleventh Amendment. It did not pass on the Fifth Circuit’s analysis of whether the Medicaid provisions created enforceable rights or, more importantly, whether such rights under the Medicaid provisions may be remedied by ensuring perfect state compliance. See id. It is this undisturbed analysis that is relevant to the case at hand.
Applying the less exacting standard in existence prior to Gonzaga, the Fifth Circuit Court of Appeals ruled that the plaintiffs could not sue under § 1983 “to require a plan to meet statewide or systemwide participation or performance measures, because, under Blessing, state compliance with such standards is not an individualized right actionable under § 1983.” Id. at 545. As the court explained,
Although relief under § 1983 for a violation of EPSDT provisions may be available, perfect state compliance with these provisions is not required. While a district court should have some discretion to craft an injunction to remedy violation of the Medicaid Act, there are
20

limits on the relief available from a federal court.
We reach this conclusion based on our understanding of congressional intent. Our goal, of course, in construing a statute is to give effect to congressional intent, and we begin this task by looking to the language of the statute itself.
In the pending case, the district court did not direct that particular individuals receive EPSDT services to which they were entitled under federal law. It has instead taken upon itself the task of reworking the procedures and mechanisms whereby EPSDT services are provided to the totality of eligible participants. The court has become overseer of the State’s Medicaid plan. As such, the court assumes the role of assuring that the State’s plan meets federal mandates, which in turn raises the issue of whether the plan must always, unfailingly, provide the EPSDT services described in the Medicaid Act. We think that is not required. Congress did not intend that a court can require that a state participating in the Medicaid program must always provide every EPSDT service to every eligible person at all times. Perfect compliance with such a complex set of requirements is practically impossible, and we will not infer congressional intent that a state achieve the impossible. Furthermore, looking to § 1396a(a)(43), even though it refers in subpart (A) to providing notice to “all persons,” and refers in subpart (B) to the provision of EPSDT screening services in “all cases” where such services are requested, the opening text of § 1396a(a) and § 1396a(a)(43) modify all of this language by only requiring that a state “plan ” must “provide for ” meeting these requirements. In § 1396a(b), Congress vested in the Secretary of Health and Human Services (Secretary) the initial responsibility for approving state plans. Section 1396a(a)(43)(D) requires that the state plan provide for reporting certain data including “the State’s results in attaining the participation goals set for the State under section 1396d(r) of this title.”
Section 1396d(r) provides:
The Secretary shall, not later than July 1, 1990, and every 12 months thereafter, develop and set annual participation goals for each State for participation of individuals who are covered under the State plan under this subchapter in early and periodic screening, diagnostic, and treatment services.
*768 In § 1396c, the Secretary is authorized to reduce

Westside Mothers v. Olszewski, 368 F.Supp.2d 740 (2005)
Med & Med GD (CCH) P 301,637
or eliminate, in its discretion, federal funding for state plans which are not in compliance with § 1396a.
In our view, Congress has therefore spoken to the success expected of a state plan: it should meet EPSDT participation goals set by the Secretary. Under the third prong of Blessing, these are the only participation goals which are unambiguously imposed on the states. We do not read the statute as allowing a federal district court to require a higher standard of success. Congress did not in our view create such a federal right. Furthermore, under the second prong of Blessing, allowing federal courts, which are hardly expert at the intricacies of providing volume health care services to the poor, to choose their own performance goals would in our view render the EPSDT provisions so vague and amorphous as to strain judicial competence.
Moreover, we believe that plaintiffs cannot sue under § 1983 to require a plan to meet statewide or systemwide participation or performance measures, because, under Blessing, state compliance with such standards is not an individualized right actionable under § 1983.
. . . . .
An analogous situation [to the one in Blessing ] is presented here. The statute authorizes the Secretary to set certain participation goals, and to cut federal funding if “there is a failure to substantially comply” with statutory provisions. Under Blessing, a state’s failure to meet such a participation goal or other systemwide performance standard does not give rise to individual rights actionable under § 1983. The fact that plaintiffs have pursued their suit as a class action is of no consequence. A class action is merely a procedural device; it does not create new substantive rights and cannot extend the subject matter jurisdiction of the district court.
Id. at 544–45 (emphasis added) (footnotes omitted).
The court finds nothing in the statutory text of §§ 1396a(a)(8) or (a)(10) that imposes a requirement for states to compel all potentially eligible individuals to participate. In fact, § 1396a(a)(8) merely requires that “all individuals wishing to make application for medical assistance” shall have the “opportunity ” to do so. 42 U.S.C. § 1396a(a)(8) (emphasis added). Moreover, the next clause in that section states that “such assistance” (referring back to the “medical assistance” made available to those wishing to seek it) “shall be furnished with
21

reasonable promptness ...” Id. This second clause does not stand alone and a plain reading of the entire provision does not suggest that the State plan must provide “medical assistance” to every potentially eligible individual.7 As the Frazar court aptly noted “some children are unable or, for whatever reason, fail to take full advantage of the services. The plaintiffs and district court see the answer to be oversight and enforcement by the court. Aside from the lack of judicial competence to meet this task, we hold that the court lacks jurisdiction to cure the problems or to direct the particular means and methods for this care.” Id. at 533.
That the enforceable rights to “medical services” created in those who are eligible *769 and who are denied specific services does not include a right to force the State to ensure 100% participation of every potentially eligible citizen is buttressed by the statutory definition of EPSDT services. Section 1396a(r) defines “EPSDT services.” It expressly provides that the Secretary of Health and Human Services shall “develop and set annual participation goals for each state for participation of individuals ... in [EPSDT] services.” 42 U.S.C. § 1396a(r). If Congress gave Plaintiffs federal rights under these Medicaid provisions to force the state to assure 100% compliance with providing “medical assistance” then this language would be rendered superfluous, a result courts should avoid in interpreting statutes. See Smith v. Babcock, 19 F.3d 257, 263 (6th Cir.1994).
Plaintiffs do not dispute that the Secretary has set (under § 1396a(r)) an 80% participation goal for EPSDT services. To the extent that Plaintiffs seek to compel Defendants to provide 100% participation in the provision of EPSDT services to every child in the state who is eligible, they fail to state a claim upon which relief can be granted. Moreover, there is no private enforceable right to ensure that the State “substantially comply” with even the 80% participation goal. See Blessing, 520 U.S. at 343–44, 117 S.Ct. 1353.8
3. The Provision of EPSDT Services Under 42 U.S.C. § 1396a(a)(43) Although Plaintiffs did not specifically identify § 1396a(a)(43) in the paragraphs of their amended complaint under the heading “First Cause of Action,” they do generally allege a violation of § 1396a(a)(43). (See Pl.’s First Amend. Compl. at ¶ 2.) This is important because the language found in §§ 1396a(a)(43)(B) and

Westside Mothers v. Olszewski, 368 F.Supp.2d 740 (2005) Med & Med GD (CCH) P 301,637
(C) must also be examined to determine if individuals have enforceable rights for the provision of EPSDT services via § 1983. There is no dispute that Plaintiffs are seeking the provision of these services and not merely payment for such services. In addition, during oral argument, Defendants’ counsel acknowledged that the statutory language used in § 1396a(a)(43) was more likely to satisfy the requirements of Gonzaga. The court now turns to the relevant statutory text to determine whether it creates enforceable rights under § 1983 for the provision of certain EPSDT services under certain circumstances.
Section 1396a(a)(43) provides that a state Medicaid plan must,
... provide for(A) informing all persons in the State who are under the age of 21 and who have been determined to be eligible for medical assistance including services described *770 in section 1396d(a)(4)(B) of this title, of the availability of early and periodic screening, diagnostic, and treatment services as described in section 1396d(r) of this title and the need for age-appropriate immunizations against vaccine-preventable diseases,9
(B) providing or arranging for the provision of such screening services in all cases where they are requested,
(C) arranging for (directly or through referral to appropriate agencies, organizations, or individuals) corrective treatment the need for which is disclosed by such child health screening services.
42 U.S.C. §§ 1396a(a)(43)(A)-(C) (emphasis added). Unlike §§ 1396a(a)(8) and (a)(10), the language used in this section is not limited to “medical assistance.” It focuses on the “providing or arranging for the provision of [ ] screening services where they are requested.” Id. The provision of EPSDT services under subsection (a)(43)(B) & (C) is not limited to “medical assistance” as that term is defined in § 1396d(a).
As the Supreme Court has stated, a participating State “must have an Early Periodic Screening, Diagnosis, and Treatment (EPSDT) program” under § 1396a(a)(43). Frew v. Hawkins, 540 U.S. 431, 433, 124 S.Ct. 899, 157 L.Ed.2d 855 (2004). In describing the requirements under these provisions, the Supreme Court also explained that “[t]he EPSDT provisions of the Medicaid statute require participating States to provide various medical services to
22

eligible children, and to provide notice of the services.” Id. at 434, 124 S.Ct. 899 (emphasis added). More specifically, the Court noted that “[t]he EPSDT statute requires States to ‘provid[e] or arrang[e] for the provision of ... screening services in all cases where they are requested,’ and also to arrange for ‘corrective treatment’ in such cases.” Id. (quoting 42 U.S.C. §§ 1396a(a)(43)(B) & (C)).
These provisions focus on all individual children in the State who have been determined to be eligible for EPSDT services and who request such EPSDT services. See id. This statutory language is similar to that of § 1396a(a)(8) and (a)(10). Given that the Wilder decision remains good law as discussed above, the court finds that § 1396a(a)(43) creates individual rights enforceable under § 1983. The scope of those individual rights is again defined by the text.
Here, the statute provides that a State must provide or arrange for the provision of EPSDT service “in all cases where they are requested.” 42 U.S.C. § 1396a(a)(43)(B). Again, this does not create a right to ensure that every child who resides in Michigan and who may be eligible for EPSDT services actually receive these services. Frazar, 300 F.3d at 544–45, rev’d on other grounds, 540 U.S. 431, 124 S.Ct. 899, 157 L.Ed.2d 855 (2004). The right is created for those individuals who qualify for and actually request such services.
Plaintiffs have stated a cause of action upon which relief may be granted inasmuch as they allege that the State of Michigan has a policy or practice of not providing the EPSDT services to those eligible children who have in fact requested them. For instance, Plaintiffs allege that individual Plaintiff K.E., a four-year-old girl, has been denied pediatric dental care. They allege that “Michigan Medical Assistance has not provided help to this child despite numerous requests by her aunt and mother [and she] is currently on waiting lists of *771 six to eight months for pediatric dental care.” (Pl.’s First Amend. Compl. at ¶ 6.) As such, part of Count I survives Defendants’ motion to dismiss.
E. Plaintiffs’ Count II “Failure to Deliver Access to the Children’s Healthcare Services Required by Title XIX”

Westside Mothers v. Olszewski, 368 F.Supp.2d 740 (2005) Med & Med GD (CCH) P 301,637
In their second count or “cause of action,” Plaintiffs allege a violation of 42 U.S.C. § 1396a(a)(30) as defined by 42 U.S.C. § 1396u–2(b)(5). (Pls.’ First Amend. Compl. at ¶¶ 53–59.) Plaintiffs aver that “Defendants’ violation of 42 U.S.C. § 1396a(a)(30)(A) provides a cause of action under 42 U.S.C. § 1983, inasmuch as Defendants, under color of law, custom, or usage, have deprived, are depriving, and have continued to deprive Plaintiffs of their clearly established rights under 42 U.S.C. § 1396a(a)(30)(A), as defined by § 1396u–2(b)(5).” (Id. at ¶ 58.)
Under subsection 30(A), 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 (including but not limited to utilization review plans as provided for in section 1396b(i)(4) of this title) as may be necessary to safeguard against unnecessary utilization of such care and services and to assure that payments are consistent with efficiency, economy, and quality of care and 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.
42 U.S.C. § 1396a(a)(30)(A).
Section 1396u–2(b)(5) provides:
Each medicaid managed care organization shall provide the State and the Secretary with adequate assurances (in time and manner determined by the Secretary) that the organization, with respect to a service area, has the capacity to serve the expected enrollment in such service area, including assurances that the organization—
(A) offers an appropriate range of services and access to preventative and primary care services for
23

the population expected to be enrolled in such service area, and
(B) maintains a sufficient number, mix, and geographic distribution of providers of services.
42 U.S.C. § 1396u–2(b)(5).
The courts considering whether § 1396a(a)(30)(A) creates rights enforceable under § 1983 post-Gonzaga have also come to conflicting conclusions. Compare Long Term Care Pharmacy Alliance v. Ferguson, 362 F.3d 50, 56 (1st Cir.2004) (no rights creating language); Sanchez v. Johnson, 301 F.Supp.2d 1060, 1063 (N.D.Cal.2004) (“Section 30(A) addresses the quality of services available to ‘the general population in the geographic area,’ but does so in indirect terms, too vague to confer an enforceable right upon those providing or receiving services.”), with Clayworth v. Bonta, 295 F.Supp.2d 1110, 1123 (E.D.Cal.2003) (“[I]n Section 30(A) Congress created rights to quality care and equal access that may be enforced by Medicaid recipients under § 1983”); Memisovski, 2004 WL 1878332, at *8 (“In light of Wilder ... § 1396a(a)(30)(A) must provide a private right of action enforceable under § 1983”).
Unlike the Medicaid provisions cited in Count I, § 1396a(a)(30)(A) does not contain rights creating language or identify an unmistakable focus on eligible participants. Nor is it akin to § 1396a(a)(13) as interpreted by the Court in Wilder. The court finds persuasive the First Circuit’s analysis on the this issue.
Subsection (30)(A), unlike subsection (a)(13) in existence at the time the Court *772 decided Wilder, does not focus on a specific objective monetary entitlement for providers similar to the rent-ceiling provision in Wright. Instead, § 1396a(a)(30)(A) “has much broader coverage, sets forth general objectives, and mentions no category of entity or person specifically protected.” Long Term Care Pharmacy Alliance, 362 F.3d at 56. “[N]othing in subsection (30)(A) expressly provides that those who furnish Medicaid services have any enforcement rights or, indeed have any specific rights to procedural [ ] or substantive [ ] protections.” Id.
After concluding that Gonzaga compelled the circuit court to overturn a prior panel’s decision to the contrary, the First Circuit found that § 1396a(a)(30) has no rights-creating language and identifies no discrete class of beneficiaries. Id. at 57. The Long Term Care Court held that Medicaid providers could not sue for violation of

Westside Mothers v. Olszewski, 368 F.Supp.2d 740 (2005)
Med & Med GD (CCH) P 301,637
subsection (a)(30). It explained,
This subsection ... is not confined to particular services. Although the statute does not provide any procedure for the determination of such “methods and procedures,” implementing regulations for the subsection require public notice of any “significant proposed change” in the “methods and standards for setting payment rates for services,” and also opportunity for comment, 42 C.F.R. § 447.205 (2002) (although not necessarily in advance, see 46 Fed.Reg. 58,677, 58,678 (Dec. 3, 1981)). The statute also includes a set of substance goals for the “methods and procedures” including the enlistment of enough providers to furnish service generally available in the community. 42 U.S.C. § 1396a(a)(30)(A) (2000).
The Commonwealth’s broadest response is that the pharmacies have no right to sue to enforce subsection (30)(A) or its implementing regulations. Of course, the Secretary of HHS (“the Secretary”) can enforce compliance with the provision and implementing regulations already mentioned, in a number of ways—by disapproving a state plan, 42 C.F.R. § 430.15 (2002), and by cutting off funds, 42 U.S.C. § 1396c (2000); 42 C.F.R. § 430.35 (2002). By contrast, nothing in subsection (30)(A) expressly provides that those who furnish Medicaid services have any enforcement rights or, indeed, have any specific rights to procedural (e.g., notice and comment) or substantive (e.g., just and reasonable rates) protections. Private rights of action were once freely inferred from federal statutes that regulated conduct—and here subsection (30)(A) certainly regulates the plan provider—but the ready inference in favor of private enforcement no longer applies. Compare J.I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964), with Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), with Alexander v. Sandoval, 532 U.S. 275, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). In the past, Long Term’s best argument would have been to rely upon section 1983 as providing an explicit automatic private right of action for injunctive relief wherever federal law regulates conduct by a state entity[.]
. . . . .
However, the Supreme Court recently closed that door as well in [Gonzaga ]. There, the Supreme Court assimilated its earlier cases restricting implied rights of action in non-state cases with section 1983 precedent; it repeated an earlier statement that section 1983 requires
24

a violation of a private federal right and not just a federal law, id. at 282–83, 536 U.S. 273, 122 S.Ct. 2268, 153 L.Ed.2d 309 (citing Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997)); and it indicated that nothing short of “an unambiguously *773 conferred right” could support a claim under section 1983 based on a federal funding statute. Id.
. . . . .
The criteria [of the text cited] (avoiding overuse, efficiency, quality of care, geographic equality) are highly general and potentially in tension. And read literally the statute does not make these directly applicable to individual state decisions; rather state plans are to provide “methods and procedures” to achieve these general ends. 42 U.S.C. § 1396a(a)(30)(A) (2000). Thus, the generality of the goals and the structure for implementing them suggests that plan review by the Secretary is the central means of enforcement intended by Congress.
Prior to Gonzaga, whether subsection (30)(A) authorized private rights for providers was a close question; the circuits were split on the issue, and well reasoned opinions had been written on both sides ... Whether Gonzaga is a tidal shift or merely a shift in emphasis, we are obligated to respect it, and it controls this case. [Medicaid] [p]roviders ... do not have a private right of action under subsection (30)(A); if they think that state reimbursement is inadequate—and cannot persuade the Secretary to act—they must vote with their feet.
Id. at 56–59.
This court agrees that the same conclusion is mandated for Medicaid recipients. Unlike subsections (a)(8) and (a)(10), subsection (a)(30) does not focus on individuals eligible for services nor reference an identifiable entitlement such as “medical assistance.” The text does not speak directly to a discrete class of beneficiaries. The language has an aggregate focus as it concerns the quality of services available “to the general population in the geographic area,” not on eligible individuals or particular services to be provided to those individuals.
Section 1396a(a)(30) refers to unspecified “methods and procedures relating to the utilization of, and the payment for, care and services under the plan.” 42 U.S.C. § 1396a(a)(30). While eligible individuals may fall within

Westside Mothers v. Olszewski, 368 F.Supp.2d 740 (2005)
Med & Med GD (CCH) P 301,637
the general zone of beneficiaries, the court cannot conclude that rights creating language exists in subsection (a)(30). See Sanchez, 301 F.Supp.2d at 1063–64; see also Bruggeman, 324 F.3d at 911 (finding that a similar subsection of § 1396a, the “best interest” provision at subsection (a)(19), “is insufficiently definite to be justiciable, and in addition cannot be interpreted to create a private right of action, given the Supreme Court’s hostility ... to implying such rights in spending statutes.”).10
Plaintiffs argue that the court must find that § 1396a(a)(30) creates individual rights enforceable via § 1983 because it is constrained by the Sixth Circuit’s decision in Gean v. Hattaway, 330 F.3d 758 (6th Cir.2003) and by this court’s own prior decision reflected in the court’s December 28, 1999 “Order Dismissing Organizational Plaintiffs ....” (12/28/99 Order at 13.)
Plaintiffs argue that because the Sixth Circuit found individual rights are created by 42 U.S.C. § 1396a(a)(3), *774 Gean, 330 F.3d at 772, this court must make the same finding with regard to § 1396a(a)(30), a similar provision. Section 1396a(a)(3) requires that 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.”
The Gean decision is not binding for several reasons. First, the decision simply does not address Gonzaga and its requirement that Congress unambiguously create individual rights by using rights creating language. Id. at 772–73 (merely noting that the “fair hearing” provision benefited Medicaid recipients). Second, and more importantly, § 1396a(a)(3) specifically identifies “any individual” whose claim is denied. 42 U.S.C. § 1396a(a)(3). This provision is similar to §§ 1396a(a)(8), (a)(10), and (a)(43). As discussed above, § 1396a(a)(30) fails to even mention individual recipients and does not have an unmistakable focus on specific individuals. Further, also unlike § 1396a(a)(30), § 1396a(a)(3) is tied to a specific denial of benefits and not amorphous and normative concepts such as “unnecessary utilization” of care, “efficiency,” “economy,” and “quality of care.” See 42 U.S.C. § 1396a(a)(30).
During the February 2, 2005 hearing, Plaintiffs’ counsel also argued that the court’s 1999 “Order Dismissing Organizational Plaintiffs ...” was binding law of the case and requires the court to find that § 1396a(a)(30) creates
25

individual rights in Medicaid recipients enforceable under § 1983. For support, Plaintiffs quote page 13 of this order where the court stated “Section 1396[a](a)(30)(A) by its terms is clearly intended to ensure that Medicaid recipients have available to them a level of medical care commensurate with that available to the public at-large in a given geographical area. It is the recipients, and not providers, who are the intended beneficiaries of this section.” (12/28/99 Order at 13.)
The December 28, 1999 decision is not binding law of the case. The court did not engage (and could not have engaged) in a Gonzaga analysis to determine whether § 1396a(a)(30) unambiguously created individual rights. A finding that Medicaid recipients were the beneficiaries is not enough to find unambiguous congressional intent to confer individual rights in spending clause legislation. Gonzaga, 536 U.S. at 282, 122 S.Ct. 2268 (rejecting the argument that federal rights are created by federal statutes so long as Congress “intended that the statute ‘benefit’ putative plaintiffs”).
Because § 1396a(a)(30)(A) does not unambiguously confer individual rights enforceable under § 1983, the court will dismiss Plaintiffs’ Count II for failure to state a claim upon which relief can be granted.11
F. Count III “Denial of Basic Healthcare Outreach and Information”
In their final count or “cause of action,” Plaintiffs assert a claim for violation of rights created by § 1396a(a)(43)(A). They argue that Defendants have refused or failed to “effectively inform” them of the existence of the “Medical Assistance children’s healthcare program, the availability of specific child healthcare services, and related assistance.” (Pls.’ First Amend. Compl. at ¶ 62.)
*775 The relevant part of the statutory text of this Medicaid provision requires that a State’s plan for medical assistance must
provide for—
(A) informing all persons in the State who are under the age of 21 and who have been determined to be eligible for medical assistance including services described in

Westside Mothers v. Olszewski, 368 F.Supp.2d 740 (2005)
Med & Med GD (CCH) P 301,637
section 1396d(a)(4)(B) of this title, of the availability of early and periodic screening, diagnostic, and treatment services as described in section 1396d(r) of this title and the need for age-appropriate immunizations against vaccine-preventable diseases ....
42 U.S.C. § 1396a(a)(43)(A).
The court finds that this provision creates enforceable rights in the identified persons, for the same reasons that §§ 1396a(a)(8) & (a)(10) create enforceable rights. (See supra part III.C.) Again, it is axiomatic that the scope of these rights is also defined by the text.
Here, enforceable rights inure in plaintiffs “who are under the age of 21 and who have been determined to be eligible for medical assistance.” 42 U.S.C. § 1396a(a)(43)(A). The plain meaning of this text does not create a duty on behalf of the State to inform every potential eligible child of the availability of EPSDT services. Section 1396a(a)(43)(A), by its own terms, applies to those children who have been determined to be eligible.
This conclusion is further buttressed by other parts of § 1396a(a)(43). For example, § 1396a(a)(43)(B) requires that a State’s plan must provide for “providing or arranging for the provision of such screening services in all cases where they are requested.” 42 U.S.C. § 1396a(a)(43)(B) (emphasis added). Subsection (a)(43)(C) is aimed at corrective treatment “the need for which is disclosed” by the EPSDT services requested under Subsection (a)(43)(B). Id. at § 1396a(a)(43)(C). Nor does anything in the text suggest congressional intent to create an individualized right to compel a participating State to “effectively” inform all potentially eligible children of the EPSDT services.
During oral argument and in their briefing, Defendants noted that Plaintiffs have failed to allege that a person who has been determined eligible for medical assistance was denied notice of the EPSDT services available. Plaintiffs did not dispute this during the hearing on February 2, 2005 and the court does not find specific allegations in this regard within the complaint. Accordingly, the court will grant Defendants’ motion to dismiss Count III for failure to state a claim. If Plaintiffs can, in good faith, and desire to allege that a particular Plaintiff or a class of potential plaintiffs has been determined to be eligible for EPSDT services and has not been provided notice of those services under § 1396a(a)(43)(A), they should seek to clarify this allegation by stipulation or motion to amend under
26

Federal Rule of Civil Procedure 15.
G. Whether State Officials are Liable for Failures of Private Medical Providers
Defendants also argue that they cannot be sued if the medical providers which have agreed to contracts with Michigan fail to provide EPDST services in accordance with the requirements of the Medicaid statute. As discussed above, by participating in the Medicaid program, a state plan must “provide for ... providing or arranging for the provision of [EPSDT] services in all cases where they are requested.” 42 U.S.C. § 1396a(a)(43)(B). Michigan’s plan must therefore provide or arrange for the provision of EPSDT services. That it may do so by entering into contracts with private providers does not relieve it from this statutory duty and whether its actions, policies, and/or procedures satisfy this requirement is a factual *776 issue that may be explored during discovery. Further, whether the cause of a particular individual’s wrongful denial of services is attributable to the state is also a factual issue.
H. Defendants’ Motion for Summary Judgment
The court will deny without prejudice Defendants’ motion for summary judgment. Formal discovery has not yet commenced in this case and this order will serve to limit the various areas for discovery. Defendants may file a renewed Rule 56 motion after the parties have had sufficient time to examine this order and begin discovery. The court, by separate order, will schedule a status/scheduling conference to discuss a Rule 16 case management scheduling order consistent with this opinion.
IV. CONCLUSION

Westside Mothers v. Olszewski, 368 F.Supp.2d 740 (2005) Med & Med GD (CCH) P 301,637

IT IS ORDERED that Defendants’ “Motion to Dismiss and/or [for] Summary Judgment” [Dkt. # 89] is GRANTED IN PART and DENIED IN PART.
Defendants’ motion to dismiss pursuant to Rule 12(b)(6) is GRANTED with respect to Counts II and III. It is DENIED with respect to Count I as explained in detail above.

Defendants to ensure 100% participation by all potentially eligible individuals. However, the Plaintiffs who have been determined to be eligible for EPSDT services and who have requested them, have stated a claim to enforce rights created by § 1396a(a)(43).
Defendants’ motion for summary judgment pursuant to Rule 56 is DENIED WITHOUT PREJUDICE.

In summary, Plaintiffs have failed to state a claim to the extent that they alleged failure by Defendants in their official capacity to ensure the actual provision of, or arrangement for, medical services. The scope of rights to “medical assistance” under §§ 1396a(a)(8) and 1396a(a)(10) does not include the provision of actual medical services; nor does it include a right to force

All Citations 368 F.Supp.2d 740, Med & Med GD (CCH) P 301,637

Footnotes

1

Initially, § 1983 came onto the books as part of the Ku Klux Klan Act of April 20, 1871, often called the Civil Rights Act of 1871. Act

of Apr. 20, 1871, ch. 22, 17 Stat. 13. It is commonly accepted that Congress enacted this legislation to alleviate state-sanctioned

discrimination following the adoption of the Civil War amendments. See Monroe v. Pape, 365 U.S. 167, 171, 81 S.Ct. 473, 5

L.Ed.2d 492 (1961). As originally passed the Civil Rights Act of 1871 only provided a cause of action for deprivation of

constitutional rights. The phrase “and laws” was added in 1874. See Rev. Stat.1979 (1874); Maine, 448 U.S. at 15–16, 100 S.Ct.

2502 (Powell, J., dissenting) (discussing the legislative history).

2

Despite conflicting opinions from sister circuits, the Sixth Circuit has also permitted federal regulations to create rights

enforceable under § 1983 by their own force. See Levin v. Childers, 101 F.3d 44, 47 (6th Cir.1996); Loschiavo v. City of Dearborn,

33 F.3d 548, 551 (6th Cir.1994); see also Johnson v. City of Detroit, 319 F.Supp.2d 756, 770 (E.D.Mich.2004) (suggesting that the

Sixth Circuit’s rule should be reexamined in light of recent Supreme Court precedent and reasoning from sister circuits).

3

Compare Westside Mothers, 289 F.3d at 852 (applying the Blessing factors as a three-part “test”); Wood v. Tompkins, 33 F.3d

600, 607 (6th Cir.1994) (applying “the Three Part ‘Enforceable Rights’ Test”), with Sandusky County Democratic Party v. Blackwell,

387 F.3d 565, 572 (6th Cir.2004) (referring to Blessing “factors”); Hughlett v. Romer–Sensky, 98 Fed.Appx. 360, 364 & n. 3 (6th Cir.

Mar.4, 2004) (applying the “factors” in Blessing and noting that the Supreme Court has clarified the application of the first

“benefit” factor and made clear that the court’s focus should be on “whether the statutory provision contained ... ‘rights

creating’ language critical to showing the requisite congressional intent to create new rights.”) In Gonzaga, the Supreme Court

did not expressly reject the three factors from Blessing, but did “reject the notion that [its] cases permit anything short of an

unambiguously conferred right to support a cause of action under § 1983.” Gonzaga, 536 U.S. at 283, 122 S.Ct. 2268.

4

The rent-ceiling provision examined in Wright provided, in 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. & Supp. III).

5

Absent is a discussion of the scope of the exact, concrete individual rights created under the statutory provisions at issue in this

27

Westside Mothers v. Olszewski, 368 F.Supp.2d 740 (2005) Med & Med GD (CCH) P 301,637

case. For instance, there is no discussion of whether §§ 1396a(a)(8) and (a)(10) create rights to actual medical services or merely rights to have these services paid for in part or in whole by the Michigan medical assistance plan. See 42 U.S.C. § 1396d(a) (“The term ‘medical assistance’ [as used in §§ 1396a(a)(8) & (a)(10) ] means payment of part or all of the cost of the following care and services ... to individuals ...”); Blessing, 520 U.S. at 346, 117 S.Ct. 1353.

6

This legislation has given courts occasion to lament. “The complexity of the Social Security Act is the stuff of legend. The Supreme

Court has offered the following lamentation on the subject. ‘The Social Security Act is among the most intricate ever drafted by

Congress. Its Byzantine construction ... makes the Act almost unintelligible to the uninitiated.’ ” Hillburn v. Commissioner, No.

H–82–200, 1985 WL 2364 at * 1–*2 (D.Conn. July 17, 1985) (quoting Schweiker v. Gray Panthers, 453 U.S. 34, 43, 101 S.Ct. 2633,

69 L.Ed.2d 460 (1981)).

7

Requiring the state to seek and find every potential eligible person for Medicaid would create an unimaginable burden for the

State to continually track and update information on millions of people. This tremendous duty was in no way agreed to by the

States in unambiguous terms, nor does the language of the text suggest so. If Congress had intended such a massive undertaking,

it would have so stated.

8

Other courts have drawn the distinction between enforceable rights under §§ 1396a(a)(8) & (a)(10) that inure in specific covered

individuals and purported rights to ensure substantial and complete compliance. For instance, in S.D. ex rel Dickson, the court

explained:

“[T]his case is distinguishable from Frazar v. Gilbert, 300 F.3d 530 (5th Cir.2002) .... In Frazar, the plaintiffs’ claims did not concern any individual recipient’s access to services required by federal law. Rather, the claims concerned the systemwide standards and measures employed by the state Medicaid agency in its administration of the EPSDT program. This court concluded that such generalized standards and procedures do not create individualized rights actionable under § 1983. In contrast, this case is solely concerned with the right of an individual to a particular service to which he is entitled under federal law.”

Frazar, 300 F.3d at 538 n. 29; see also Sabree, 367 F.3d at 181 (plaintiffs were a class of mentally retarded adults in need of covered services under the Medicaid Act, they were qualified for state assistance to obtain those particular services, and such assistance was not forthcoming).

9

Section 1396a(a)(43)(A) is related to notice of EPSDT services for those who have been determined to be eligible. This provision is

the subject of Count III and is examined in more detail below.

10 42 U.S.C. § 1320a–2 provides that “a provision of this chapter ... is not deemed to be unenforceable because of its inclusion in a section of this chapter requiring a State plan or specifying the required contents of a State plan.” 42 U.S.C. § 1320a–2. This provision makes clear that a Medicaid provision requiring action under a State plan does not foreclose a finding that such provision creates individual rights. It does not, however, resolve the question; the court must still look to the specific text and determine whether Congress unambiguously conferred individual rights. Section 1396a(a)(30) does not.

11 This conclusion results in the dismissal of Plaintiffs The Michigan Chapter of American Pediatric Dentists and The Michigan Chapter of American Academy of Pediatrics. Both of these Plaintiffs alleged violations of § 1396(a)(30)(A). (Pl.’s First Amend. Compl. at ¶¶ 11,12.)

28

Westside Mothers v. Olszewski, 368 F.Supp.2d 740 (2005) Med & Med GD (CCH) P 301,637
29

 
 IN THE UENAISTTEEDRSNTDAITSETSRDICISTTORFICMTICCOHUIGRATNFOR THE

Westside Mothers, Families on the Move, Inc., Michigan Chapter, American Academy of Pediatrics, Michigan Chapter, American Academy ofPediatric Dentists, and Ky. L., by his next friend Patricia L., Ka. L., by her next friend Patricia L., K. C., by her next friend Zina C., S. J., by heinext friend Nicole J.,
M. J., by her next friend Nicole J.,
Dh. W., by her next friend Dawn W., EI. W., by her next friend Dawn W.,
w., Em. W., by her next friend Dawn W.,
Dl. by his next friend Dawn W., Ja. E., by her next friend, Deana H., Je. E, by her next friend Deana H., M. L., by her next friend Deana H., J. C., by his next friend, Monica C.,

Plaintiffs,

v.

Janet Olszewski, In Her Official Capacity.as

Director ofthe State ofMichigan

Department ofCommunity Health,

Lewis Cass Building, ff' Floor

320 South Walnut Street, Lansing MI 48933;

Paul Reinhart, In His. Official Capacity as

Deputy Director ofthe State Services Administration,

ofMichigan

Medical

400 South Pine, Lansing MI 48933,

Defendants.

CNILACTION CASE NO.: 99-CV-73442-DT
CLASS ACTION

SECOND AMENDED COMPLAINT

!2532685.l.LITIGATION

Marilyn P. Mullane 30998 ·· MICHIGAN LEGAL SERVICES 900 Michigan Building 220 Bagley Street Detroit, MI 48226 (313) 964-413 0
Susan McParland MICHIGAN ASSOCIATION FOR CHILDREN WITH EMOTIONAL DISORDERS 30233 Southfield Road, Suite 219 Southfield, MI 48076 (248) 433-2200
Jennifer R. Clarke PUBLIC INTEREST LAW CENTER OF PHILADELPHIA 125 South 9th Street, Suite 700 Philadelphia, PA 19107 (215) 627-7100
Richard L. Berkman DECHERTLLP CiraCentre 2929 Arch Street Philadelphia, PA 19104-2808 (215) 994-2684
O f Counsel:
Jane Perkins NATIONAL HEALTH LAW PROGRAM 211 N. Columbia Street Chapel Hill, NC (919) 968-6308

Attorneys for Plaintiffs

!2532685.LLITIGATION

-2-

I.

INTRODUCTION

I.

This is a civil rights class action against Michigan state officials arising out of

their failure to provide eligible children in Michigan with "Medical Assistance," as that term is

defined in 42 U.S.C. § 1396d(a), and their failure to comply with 42 U.S.C. § 1396a(a)(8),

(a)(!O) and (a)(43)(A), (B) and (C). This case is brought on behalf of the more than 950,000

children throughout Michigan who depend on Medicaid for essential medical and dental services

(referred to as Early and Periodic Screening, Diagnostic, and Treatment Services, or "EPSDT"),

as required by federal law. The named Plaintiffs, on behalfof these children, seek injunctive

relief and appointment of a Special Master to stop the systemic violation of federal laws

currently taking place in Michigan, which is causing these children to be deprived ofthese

required services. These violations result in deprivation ofmedically necessary care, which in

turn results in the needless infliction ofpain, the endangerment ofyoung lives, the disruption of

learning, development and growth and the stunting of children's chances to achieve their full

potential.

II. IURISDICTION AND VENUE

2.

Plaintiffs bring this action to redress the deprivation ofrights secured them under

42 U.S.C. § 1396a(a)(8), (a)(IO) and (a)(43)(A), (B) and (C), as defined by 42 U.S.C.

§§ 1396d(a) and (r) and 1396u-2(b)(5), and which are enforceable under 42 U.S.C. § 1983.

3.

This Court has subject matter jurisdiction under 28 U.S.C. § 1331, which confers

on the federal district courts original jurisdiction over all civil suits arising under the Constitution

and laws ofthe United States, and 28 U.S.C. § 1343(a)(3) and (4), which confers on the federal

12532685.l.LITIGATION

-3 -

district courts original jurisdiction over all claims asserted under 42 U.S.C. § 1983 to redress any deprivation under color of state law ofrights, privileges, and immunities guaranteed by the Constitution of the United States or the acts of Congress.

4.

Plaintiffs' request for declaratory and injunctive relief, and for other appropriate

equitable relief, is authorized by 28 U.S.C. §§ 2201-02, 42 U.S.C. § !983, and FED. R. CN. P. 57

and65.

5.

Venue is proper in the Eastern District ofMichigan under 28 U.S.C. § 139l(b).

III. PARTIES

A. Plaintiffs

6.

Plaintiff Ky. L. is a twelve year old boy with autism and PlaintiffKa. L. is his

thirteen year old sister. They both live with their mother Patricia L. in Westland, Michigan.

Approximately two years ago, Patricia L., on behalf of Ky. L. and Ka. L., applied for and

enrolled in Medicaid. By applying for and enrolling in Medicaid, Patricia L. requested the right

for her children Ky. L. and Ka. L. to receive EPSDT services. During this time, Ky. L. and Ka.

L. have been unable to obtain a single dental screening, though the American Academy of

Pediatric Dentistry recommends screenings every six months for children twelve and thirteen

years old and Michigan has adopted that schedule as part of its State Plan. During the first 15

months Ky. L. and Ka. L. were Medicaid beneficiaries, the Defendants failed to inform Patricia

L. that Medicaid covered dental screenings. In approximately February 2006, Patricia L.

discovered that Defendants do pay for dental screenings and other dental services. The dentist

Ky. L. and Ka. L. had been seeing routinely for the years before they were enrolled in Medicaid,

12532685.I.LITIGATION

-4-

aaocalEccldMhPcePbeiDunpaPanSeterpflththaEctdDeirfoiaaotaniiqsNyrrtcTctuwgtmiuieiaTcoDsfaeaensioeeinIdsreveaeLdSrastsrfewLo.TlhvhedPfr.rttnio,ee)eahMhcdwnrnrdttceeeroaettiPeosenriawdnxcadaruflftcetiipoitnlossancradcyoneircdalcaLclrtKnohisoeliv.daaoletaiudyeiltcrtadcpdlh.LdvcedcfeearaLi.eivceasntctnn.piteeneteofaoditpirt,strnnshtyMetpgPdttdaihaesrendianwtee.odttgehtddaolvrhKnponirinioelctcetdoyeoihiliasgaei.twarceitnecrhhdLarLsieqctaM.t.nf.eeuivptisnpohnhPieMerprtdaeodaheteeasrwtevidedaerncdlihriceaobdyMnciahlaiccieievdrdnraaeacsweeegipdleadLcadmrpaiuoiid.vctfntphsrehofciaifdereoincaanioocndenhtltotruvilsthmeebsesffli,sttdoo,dbai;ayasrettotbsaofhdrfiKuoahosoiehugank,euynnaectde,b.ttihdlcatisibupoLsadnetbKulttind.ipgoicttDyientai.utnpeo.aeonyetrdlnLFhdlfoeeafe.MeoaivstovKnnortprriafadeddaasetibtbdoleay.rhxaaeleirncLieabcigssanhtnmm.alsheeooegai'tepwdTlcferddKuolceviheeangtdyebpae,nhnaiep.rrycitderbneititLareoisDlstwtnlp.etiudeossgesrensitotfeedo(rtMekoo1sraennveft-ntoehii8ondinvdcnhe0tatdeeiaeren0acsttrta-caai,osvocinldetweddo.pnht.er ssfueurrMroqeDrggiquieeeeluiotdnoretniohonscveittaiteoan,ihddr7wMoua.tbssphhipepceidnichrtereohaiifgfxlgosiPaihcarhmnmlifteaat.faeiirwottnryZyeratKilsih(synfi.cenfarolCKrecuCnfecb..ee.'hfssrCoiiwrhslb.eodeediiatres)wK,tkmhboaa..,uefstCthmZtthb.hitieorbhetntoreihearnsreori.gCeonoschpr.fBmtetPirhtiyefolavooaqlnaepoiupdtnetEhe.pidtrsPiloietWyfcSelcfiddWstDnheuggoedTreirngfrsZtoslhetZeriswoonriianpvndhaneiaeodcCddieCMii.dessc.t.nonolsartioKenohvftrodlei.vlnalriCilKscngco..cge.wwewsCKip-infaut.t.rhspMwoMChbmwe.eeeorhddirrettaihinmhccdseawaioabisiondtdiecrht,.hethoehZnarrZtotriaahZgpnilnoeieiapnapddCeaeiCscd.C.ic. in

t25326S5.l.UT!GATION

-5-

indicated a blood lead level of 12, for which she received no further treatment. She has not been retested since the last examination. Deana H. and Ja. E. have never received information about the need for further follow-up testing from Defendants, nor have they received scheduling assistance for such follow-up testing from Defendants. As a consequence ofthe lead poisoning, Plaintiff Ja. E. is struggling in school in the second grade, after she failed first grade twice. She is hyperactive and extremely forgetful. She requires a lot of help with school work, but is not receiving any special education assistance. Plaintiff Ja. E. also suffers from labored breathing. She has never been tested for asthma. Finally, Ja. E. has received only one hearing and vision screening examination, and that was almost five years ago. Again, Ja. E. received these screening exam1nations only because Head Start required them prior to enrollment in the program. Deana H. and Ja. E. have never received information from Defendants about the EPSDT Ja. E. is entitled to receive. Deana H. and Ja. E. did not know that Ja. E. should have received a lead blood test before she was four years old and did not know that Ja. E. should be receiving regular hearing and vision screening examinations. Deana H. would have requested lead blood, hearing and vision screening examinations and treatment for Ja. E.'s asthma (among other EPSDT services) explicitly had she been informed that federal law requires Defendants. to pay for them.
12. Plaintiff Je. E. is the sister of Plaintiff Ja E., is seven years old and also resides with her mother, Deana H., in Detroit, Michigan where she has lived since birth. Je. E. has been enrolled in Medicaid for her entire life and obtains care currently through the HMO, Ornnicare. By applying for and enrolling in Medicaid, Deana H. requested the right for her child J e. E.· to receive EPSDT services. Like her sister, Je. E. has never received EPSDT, other than the check-

12532685.l.IlTIGATION

- 8-

rDserEuceqe.rcpuaeehniweiraavnevhesiHeni.cD.gnhDweeeofvexoecaeauncnrmldudarairenrHnhceatae.dstviiavtoeanoensdrdspea,Jqaiecinuyn.ofecfonEsolrdt.urmeidddtsaiiiuondtEcingonPhnlfoSseotDefarrkrdohTvnmebiocerlwexoDaspod.teldhmficaetieitnstsdJsltyeiiano.nhgnEta_st.daoasnsbhtdhhooeevuubitlHsdetieheoraenendcEiaenSPnifvtdSoaerDrhmtreTepaegrdrJouiegnlt.ahrgEraaem.taxnfi.asedmdeDpenieerntariaatilnltoieladoadinHwctso.. and Je. sinmuaDnoDgciameometeAhMedvOahlk-rumadosmaenean.mnnepprsasuaoLeriaitpnrvnznbHrdwe.erHiiaidideecocctc.ztsoteaeapietathaiohrnhinsswrtrnea1vinri.aeeop.aAtd3eeistcnttnl.MedheesMcaBersciyanoix..hivynh.demnlpLeelfeaBLeaileor.mnPdriEmp.descrmgsulpmuaPciahyilotlolatnneSiloysaolonuytidoDutihMzatstfinhlsiaeoasheTdPgfaetrhknpafit,eddrsMofohevadeDfoeiunersrecMcirr.tohealsvaenHdamotaLe.iiiarondcvnMr.fiLgbteecdeaDiifa.estrcssOoisieeeH.etenmrro2ncnfiSeh.sMevher,mctyatiaonieeaniosvev.lnductrLfmaaleaenlaonierp.DidcnnosPrimnnpchzgmetitiltiorsaaenciatnsioerrtlsnnfnaceiedofxdodo.bhoh-iMilrasntptomaerim,MhnfsrddutfeMeeaa.hdarutd.votteatalteDiitLieefuethnchcolen.dyeleaehedindytmahiviataeEsdognfaee3bprmir,bPasanrsalopDcytnteSlunmapHoehnDelwdciorieea.nniahirtDocTzwhswstinirkameofleeeacMdo-tardrPfciuaeeueHseobilern.pqeclnanees.idtssLuivdhsstcr.nciw.hs.eaeehrtfuindiDaeqieoenhsrfDtsvucrerfacaseekeseeenDleisarnlnm-saJrnetbuelttttanehigiealhmfip.vtqayeredalesHetEuuenrHthatdnddehan..dhg,.esniriaaaseteenztaocdoninnevsgannreutdddirMetsscdoggtienseJMhohftchMiaeonectebotrt..hshiy.hipnnfvEoLrioLfeeaetgeu..ohrey..mHagad.rdhhnfhnMiMoeoadMfdhnrotrv.Ohatr.acesheLl,hLs.i,o.ld

12532685.l.IITIGATION

-9-

14. Plaintiff J. C. is thirteen years old and resides with his mother, Monica C. in Detroit, Michigan where he has lived since birth. He suffers from asthma, apparent psychiatric or neurological problems and is learning disabled. He has been enrolled in Medicaid his entire life and obtains care currently through the HMO, Midwest. By applying for and enrolling in Medicaid, Monica C. requested the right for her child J. C. to receive EPSDT services. He is in a special education program at his school and performing at the level of a seven year old. As a result of his behavior at school, J. C.'s special education teacher advised that he should be
neurologically and psychologically tested. Monica C. took J. C. to his health care provider and sought a referral to a neurologist or psychiatrist, which was denied. J. C. continues to exhibit bizarre behavior, including conversations with imaginary persons, for which he is not being treated. Teachers at the Emerson School, which J. C. has been attending for the past year, suspect that J. C. may suffer from attention deficit hyperactivity disorder and recently
recommended that he be tested for this problem. Monica C. is waiting for a referral. Monica C. and J. C. have never received information from Defendants about the EPSDT J. C. is entitled to receive. Also, as noted above, Monica C. requested screening examinations explicitly.
15. Plaintiff Michigan Chapter, American Academy ofPediatrics ("AAP") is a notfor-profit organization with more than 1500 member pediatricians in Michigan. Members of the AAP provide healthcare to children eligible for and/or enrolled in Medicaid. The mission of the AAP is to attain "optimal physical, mental, and social health for all infants, children, adolescents and young adults." The AAP dedicates its resources and efforts to protecting the medical needs ofchildren. In particular, the AAP focuses on promoting policies that increase access to
healthcare for low-income children. Thus, the AAP seeks to assure that children who are

12532685.l.LITIGATION

- 10-

Medicaid beneficiaries receive medical and dental services. AAP brings this complaint on behalf of itself, its members and the patients ofits members. The unlawful acts and omissions of Defendants have imposed otherwise Ullllecessary expenditures of organizational resources upon the AAP. The unlawful acts and omissions ofDefendants also have resulted in payments to AAP members that are not sufficient to cover the cost oftreating Medicaid beneficiaries.
Consequently, the patients of the members of the AAP are deprived of Medical Assistance required by§ 1396a(a)(8) and (a)(10) and other services required by§ 1396a(a)(43)(A), (B) and (C) by the Defendants' unlawful acts and omissions.
16. PlaintiffMichigan Chapter, American Academy of Pediatric Dentists ("AAPD") is a not-for-profit organization with more than 100 member pediatric dentists in Michigan. Members ofAAPD provide dental care to children eligible for and/or enrolled in Medicaid. The mission of the AAPD is to improve and maintain the oral health ofinfants, children, adolescents, and persons with special needs. The AAPD is dedicated to promoting policies that increase access to oral healthcare for low-income children. Thus, the AAPD seeks to assure that children who are Medicaid beneficiaries receive periodic and comprehensive dental examinations and treatment. The AAPD brings this case on behalf of itself, its members and the patients ofits members. The unlawful acts and omissions of Defendants have imposed otherwise unnecessary expenditures of organizational resources upon the AAPD. The nn!awful acts and omissions of Defendants also have resulted in payments to AAPD members that are not sufficient to cover the cost of treating Medicaid beneficiaries. Consequently, the patients of the members ofthe AAPD are deprived of Medical Assistance required by§ 1396a(a)(8) and (a)(1 0) and other services required by§ 1396a(a)(43)(A), (B) and (C) by the Defendants' unlawful acts and omissions.

12532685.l.LITIGATION

- 11 -

17. Plaintiff Families On the Move, Inc. ("FOM") is a Michigan non-profit
corporation. FOM is a membership organization composed of foster parents, adoptive parents, and biological parents of special needs children. The organization is based in Wayne County, Michigan, with members throughout the State. The group was organized to provide support and information, and to advocate on behalf of families with children with special needs. Well over halfofthe members are foster families in the process of adopting their foster children. These children are special needs children who suffer from a variety of illnesses and disabilities and who require ongoing medical care for their conditions. All ofthe foster care and adoptive children are eligible for and/or enrolled in Medicaid. An overwhelming number ofthese children have a history of grossly inadequate medical care. The foster care children have multiple special needs and are frequently from abusive homes. Foster care parents are expected to ensure adequate healthcare for their children. Foster care parents are required by law to ensure that their foster children are inununized. These parents face obstacles, however, including lack of complete records, a history ofinadequate healthcare, Defendants' failure to provide Medical Assistance, and Defendants' failure to adequately monitor the actions (and inaction) of the managed care organizations with whom Defendants contract to manage the Medicaid program and coordinate the care ofMedicaid beneficiaries. FOM brings this case on behalf ofitself, its members and the foster care and/or adoptive children ofits members. The unlawful acts and omissions of
Defendants have imposed otherwise unnecessary expenditures of organizational resources upon FOM. The unlawful acts and omissions of Defendants also result in the foster care and/or
adoptive children ofFOM's members not receiving the Medical Assistance required by

!2532685.!.LITIGATION

- 12-

§ 1396a(a)(8) and (a)(lO) and other services required by§ 1396a(a)(43)(A), (B) and (C) to which they are entitled.
18. Plaintiff Westside Mothers is a Michigan non-profit corporation. Westside Mothers is a welfure rights organization with more than 600 members living primarily on Detroit's Westside, the majority ofwhom are mothers and their children eligible for and/or enrolled in the Medicaid program and who need the Medical Assistance and other services required by the Social Security Act. Westside Mothers brings this case on behalf ofitself and its members. The unlawful acts and omissions ofDefendants have imposed otherwise unnecessary expenditures of organizational resources upon Westside Mothers. The unlawful acts and omissions of Defendants also result in members of Westside Mothers not receiving the Medical Assistance required by§ 1396a(a)(8) and (a)(lO) and other services required by § 1396a(a)(43)(A), (B) and (C) to which they are entitled.
B. Defendants
19. Defendant Janet Olszewski is the Director of the Michigan Department of Commuuity Health (DCH), which has been designated by the Governor of Michigan as the single state Medicaid agency. As such, Defendant Olszewski has the ultimate, non-delegable duty to assure that Michigan's Medicaid program is implemented and administered consistent with the requirements ofthe Social Security Act. Defendant Olszewski is sued in her official capacity.
20. Defendant Paul Reinhart is the Deputy Director of the Medical Services Administration, which is the state Medicaid agency. As such, he is responsible for heading the

!2532685.I.UTIGATION

- 13-

agency that provides healthcare coverage for the Michigan residents who are eligible for Medicaid. Defendant Reinhart is sued in his official capacity.
IV. CLASS ACTION ALLEGATIONS
21. The named Plaintiffs bring this action on behalfof themselves and all others similarly situated pursuant to FED. R. CN. P. 23(a) and (b)(2). Plaintiffs' class (the "Class") consists of children under the age of21 who are now, or will in the future be, residing in Michigan and who are, or will be, eligible for and/or enrolled in Medicaid and who have been, or will be, deprived ofMedical Assistance for EPSDT under 42 U.S.C. § 1396a(a)(8) and (a)(1 0) and/or other services to which they are entitled under 42 U.S.C. § 1396a(a)(43)(A), (B) and (C).
22. The requirements ofFED. R. CN. P. 23(a) are met in that the Class is so numerous that joining all members is impractical. According to the most current official reports ofthe Michigan Medicaid program, 958,135 children under age 21 were eligible for and/or enrolled in Medicaid in fiscal year 2003.
23. The named Plaintiffs raise claims based on questions oflaw and fact that are common to the Class. Plaintiffs and the Class members all rely on Defendants to ensure that they (a) have access to and receive Medical Assistance for medical and dental services guaranteed them under federal law, and (b) receive other services guaranteed them under federal law. Additionally, Plaintiffs and the Class members all experience the same harm: they are being deprived of, or are at risk ofbeing deprived of, Medical Assistance and other services to which they are entitled under federal law because of systemic deficiencies and barriers in Michigan's Medicaid program, for which Defendants are responsible. Questions of fact and law

12532685.l.UTIGATION

- 14-

common to the entire Class include whether Defendants fail to meet their obligations under 42 U.S.C. § 1396a(a)(8), (a)(IO), (a)(43)(A), (a)(43)(B), and (a)(43)(C), as defined by42 U.S.C. § 1396d(a) and (r) and 1396u-2(b)(5).
24. The claims ofthe named Plaintiffs are typical of the Class in that neither the named Plaintiffs nor the members of the Class have been provided: (a) Medical Assistance for the medical and dental services required by federal law; (b) requested screening services; (c) corrective treatment for conditions discovered during requested screening services; (d) required information regarding the availabilityofEPSDT; and, (e) required information regarding the need for age-appropriate immunizations against vaccine-preventable diseases.
25. The named Plaintiffs will fairly and adequately protect the interests of the Class. They are represented by attorneys employed by Michigan Legal Services, Dechert LLP, the Public Interest Law Center ofPhiladelphia, the National Health Law Program and the Michigan Association for Children with Emotional Disorders. Counsel have experience in complex class action litigation involving healthcare and civil rights laws. Counsel have the resources, expertise, and experience to prosecute this action. Furthermore, there is no antagonism and no conflict exists between the named and unnamed Class members because all Plaintiffs seek the same relief: a system that adequately provides Medical Assistance for the full range ofEPSDT children's healthcare services to which Plaintiffs are entitled under federal law.
26. The requirements ofFED. R. CN. P. 23(b)(2) are met because Defendants' acts and omissions have affected and will affect the Class generally, in that the case arises from Defendants' systemic failure to provide the individual Plaintiffs, the Class, and the Medicaid beneficiaries represented by the organizational Plaintiffs with Medical Assistance for medica!

12532685.Lill!GATION

- 15-

and dental services, as well as other services required by federal law, and the Class seeks appropriate final injunctive and declaratory relief with respect to the Class as a whole.
N. FACTUAL ALLEGATIONS
27. Title XIX, the Medicaid title of the Social Security Act (the "Act'') provides for "Medical Assistance" and other services to individuals who lack the financial means to obtain needed healthcare on their own. Medicaid is partially administered by the federal government, under the aegis of the Centers for Medicare and Medicaid Services ("CMS"). Each state can decide whether to participate in the Medicaid program, and all states do. The state and federal governments share responsibility for funding Medicaid. In Michigan during fiscal year 2005 (October 1, 2004-September 30, 2005), the federal government paid approximately 57 % of all Medicaid service costs and the State paid the remaining 43 % ofthe service costs. States administer the program, subject to federal requirements imposed by the Act, Medicaid regulations, 42 C.P.R. §§ 440.40(b), 441.50 et ~and CMS policy directives, such as the State Medicaid Manual.
28. In 1967, Congress amended the Act to add a requirement that children receive Medicaid for healthcare services. Through this Amendment, Congress intended to establish a unified, accessible, and accountable system ofchildren's healthcare that would ensure that eligible children actually had the opportunity to receive medical and dental examinations and treatment necessary for healthy development. Congress has since amended the Act a number of times to strengthen and elaborate upon this requirement

12532685.1.1ITIGATION

- 16-

otMopteiindocniclaualdi2gde9rp.coreuorptg,aritManhmeiocpsthottiaigoctaenon'avslheigramrscopepulraetpramstiineocnigfptrcaaohttiueiolpddnsrioenonffM.tchehIeddil.MidcrWeaedindhi,ces4atihi2ndecUrep.ir1Sno9.cgC6lru5.ad.§meFd1me3adu9ses6artaaam(ladla)ha(newldr)e,areattoqonrudytihraoeelrlsoaawnsstsattaet'ess 2eppM0Enroo0erPvivoq2ceSelu)hlr;rDieittrygCdyTeamlMilenaenevnvScMneedo,tllsvF.peferodooTorrrifsvcmhcfiaieehndi2diSfdel0eadt-o8rnaarat2ttephlsenp(elh(FarruaawoYgcnsxeh,dcs1iiiemhln9rd1oc9aarslt9etguhe)enedrn;l'oisyoCtnuonh3ghgeep0hit)alhr%dlo1wetr8vheoir.ictnefdhaq'MaesrfuleaMDliomrscreeeeehifmrdleivtyilhenicdcniasarneenteiscsdnF.ot9eiuom5n4lnip02egtdr,hsi0Uob(ea01vi.tSl0S9iidot9.tMaCyer7tb.eu)Mi.ce.p§hel Cot1diogw3iMca91an16S5l8a,c0A.5hF%%siColsdoruiomsrfretfrtane4htnhn1ehcet6alefyvef(fe,deFodeYreraral l

adbMcSfeecoemeeercnd-sorssienrceettsraaontvirred3iyaccw0tapeoe.rerfieodtnhH.gasanreutTaUdarimhlatnqtsnehtuwciMca1aeiuln1tepirhd9tdrlyea9iaHcnns7"aetu.,mirvmMdvIeanimarincsnc1eaaihs9ogSni.9neaeg7d,rgav,wneciMdcahoericpiecscae"hhrtroepaiigstrpaeoasrldngloeoritgatawtpsrmoapMtm.hleixeee4sdpdst2iiitfcrlaUloeataeri.oSdsatns.onpCuJdrbr.uoeeon§gsgbert1itahn3a3mai0r9nte,m6ebp2ndelu0(anbca0ce)h7iw.fn,ilcagirTkiiehaviqetriesusiareitwrrsfcearorasodemimitcvthmieeoetirehvnhSreeacatlaisatel

feeto

fAreedslseieirsvatlealnyt3hcm1ee.maannsdedalvoBteetyhdsecosroefcnrtvhthriieacldcerrtesiesnanpgr'osewnhpsieritobahvlitmlihidtacyenadoraerfgescemeodrmavciainpcrsleeyswio.nirgtgAhawtnDiaitezlhlfaetttiihnmoednearssne,(qts"tuhMaiernCeddmOucets•yn"n)ttn,otooDetpnebfrseeounvdrdeiedalteehngatMsattdaeeldodlincoaorlt

J2532685.l.LJTIGATJON

- 17-

assigned. Defendants also must monitor and evaluate the MCOs' performance and determine whether they are adequately providing the care they are obligated to provide. 42 U.S.C. § 1396u-2(c); see also 42 U.S.C. § 1396u-2(b)(5).
32. Since the late 1980s, and particularly since 1997, the numbers ofMedicaid beneficiaries in Michigan enrolled in managed care plans has increased. As ofJune 30, 2003, 99.44% of Michigan's Medicaid beneficiaries were enrolled in managed care plans. CMS, Medicaid Managed Care Penetration Rates by State (last modified June 30, 2003) <http://www.cms.hhs.gov/medicaid/managedcarelmcsten03.htm>. The vast majority of Medicaid beneficiaries under age 21 are enrolled in Michigan's managed care program.
33. The Act requires that Medical Assistance "shall be furnished" to "all eligible individuals." 42 U.S.C. § 1396a(a)(8); see also42 U.S.C. § 1396a(a)(lO)(A) (setting forth what individuals are eligible to receive Medical Assistance).
34. The Act defines "Medical Assistance" to mean "payment of part or all of the cost of[certaiu] care and services" for eligible individuals. 42 U.S.C. § 1396d(a).
35. The Act also provides that the State must provide Medical Assistance for at least a minimum set of services, which include Early and Periodic Screening, Diagnostic and Treatment Services. 42 U.S.C. § 1396a(a)(10); ~also 42 U.S.C. § 1396d(a)(4)(B).
36. The Act defines "Early and Periodic Screening, Diagnostic and Treatment Services" ("EPSDT") to include regular medical and dental examinations in accordance with a schedule set in consultation with recognized medical and dental organizations. The medical examination must include a comprehensive health and developmental history (including an assessment of physical and mental health development), a comprehensive unclothed physicill

12532685.l.UTIGATION

- 18-

examination, appropriate immunizations, laboratory tests (including education, and anticipatory guidance. The medical examination also hearing examinations. 42 U.S.C. § 1396d(r).

lead blood tests), health must include vision and

pf§coraoonl1lmndo3dw9pmi6tt-lieduyon(p3.nrt7)sas.,.lewriIlvnlhinceseAethshsoisle,rerdttso,eoatferhninnnedseoMudctrotebehndytedihcitntahaieteoiedpnAdosAec,tdecta,ntnstErediearPqtvlSruipecDirareotTemibssaletelohnsmteothsaesinntraawdcrteleiuossddteihteaocesgorpndvmroieoaservgeeainddsdoueabsrnieyMsdsteohntdrfeeeiaecasndattamyletdAede.ntesofts4eiic2scsottUapsrnrr.aeocSncve.dtCifdso.puerhcdyhsical

38. furnished with

The Act requires not merely that Medical Ailsistance "reasonable promptness." 42 U.S.C. § l396a(a)(8).

be

furnished;

it

must

be

Ca§bavMan4asd4iSil1sa,d.btSe6olnt1eam3t;itt9seoCet.MseMatsweStshdhu,IeiorScnenataoaeairdttedeehdeMweMsqriuaolweanlfdituoneciracghdplaisarli§o,ddnvtr5dMhei2dnqe2aeuA0wnra.uhclpitaoafiolre§atbidrcle5iitg2poea2alpti0tegir.osoibnvSsliteitadantfeteoeMscrshetamoidnluidedcsrn/aetosintruda're'sksenehcrtehoahaaldillltvetdhtadrhcneeiatnnrare'egsMeashreeoeedrafvielcaitncahlloeicdsurae.groseh4nos2udaeroCrctcvie.tmiPsoc.reeRssly..

aaftcoacr oltehrdveienel4gxt0aht.moatitndhaoeDtitnoeyofnpetsena, odtdtafriaanscgtestnrvpaoiuscsibueslfpiafsirnhcodivtethinrdeetearndatu.mtmeTesbnhtetheroeroyfafctoedhfsoifleDcdrtreotefornesnreaednniamrdnobtdlslueeorndsfteiifsnemtrsMeatdroeeidpciearcxolatviardenid.mdeTedtlhehyneelstomaelwerpadartioencsvdailvdaarererys

12532685. I.UTIGJ\TION

- 19-

and dental examinations, diagnosis and treaiment to the individual Plaintiffs, the Class, and the Medicaid beneficiaries represented by the organizational Plaintiffs required by law.
41. Because there are an insufficient number of doctors and dentists willing to
examine and treat children who are enrolled in Medicaid, the individual Plaintiffs, the Class, and the Medicaid beneficiaries represented by the organizational Plaintiffs are not able to receive the examinations, diagnosis and treaiment that they need and to which they are entitled. In some cases, these Medicaid beneficiaries ultimately receive care, but only after an unreasonably long delay that is far longer than the time a child with commercial insurance must wait to see a doctor or a dentist

42. In short, because Defendants provide reimbursement rates that are so low that an insufficient number ofproviders are willing to care for children who are enrolled in Medicaid, Defendants are effectively denying the individual Plaintiffs, the Class, and the Medicaid
beneficiaries represented by the organizational Plaintiffs the right to Medical Assistance for
EPSDT.

43.

The "inadequate payments [offered by Defendants] effectively deny [the

individual Plaintiffs, the Class, and the Medicaid beneficiaries represented by the organizational

Plaintiffs] the right to 'medical assistance."' Westside Mothers v. Olszewski, 454 F.3d 532, 541

(6th Cir. 2006).

44. Additionally, the inadequate payments offered by Defendants effectively deny the individual Plaintiffs, the Class, and the Medicaid beneficiaries represented by the organizational Plaintiffs the right to Medical Assistance "with reasonable promptness."

J2532685J.UTJGATION

-20-

fdtoherenstoaurlcgheax4nsa5eimz.ravitinicoaetnTsiaohwlnePist,ilhnaddi"iniarvtegiiafndfsosuosahnilsaaPbvallenaednipnotrtrtioefrmfaestcp,mettnihevneeestC,ds.al"Mansdes!d,oiarcntadhl eAtyhsehsMiasvteaednniccoeat firdoercbetehinveeefEdiPcMiSaeDrideTiscmraelepAdriescssaielsntatanenddceb y

46. Defendants have refused or failed to Plaintiffs, the Class, and the Medicaid beneficiaries as required by 42 U.S.C. § 1396a(a)(8) and (a)(lO).

provide Medical Assistance to the individual represented by the organizational Plaintiffs

EchPiSldDrTen.4a7Tn.hdutsh, eCtihorengAguracertsdrsiearqneusciormegsunsiszttaektdneosthwtaottihinfafttohtnehneAyeclatirg'seibreelneqtuictihlreieldmdtreoennMtsaenaddriecthatoeidihraafnvadme msilpieeeacsni"fiinocgfa,tlhleyelitgoible availability of [EPSDT] and the need for age-appropriate immunizations against vaccinepreventable diseases." 42 U.S.C.§ 1396a(a)(43)(A). This obligation also includes the iphnrleadasvicpveeoimndnuoesatinblrtsie,lcwCiteyMhnottSolya,truaSerstgbaeeltdietntoMdhu,eetdrdMeeiaacefcad,hiidoctraoMlccAaaennsrnustaoaisiltotra§e"n5aacd1te2roEi1srP,kuSa"nnDgddTreotrhsuptepraosrng,edisroapthmcolenu, sEdainibnodiglglicitashydhitololdlaerenesfgcnfueeinacntgtsfiev,oetsohtlfeyotrsihnecefaworenhno availability of children's healthcare services. 42 C.F.R. § 44!.56(a).

the

48. The individual Plaintiffs, the Class, and organizational Plaintiffs have not actually received

the Medicaid beneficiaries required infonnation about

represented the

by

availability ofEPSDT or the need for immunizations, required information about the availability ofEPSDT

and/or they have not effectively or the need for immunizations.

received

12532685J.UTIGATION

- 21 -

49. Defendants have refused or failed to meet their obligations to the individual Plaintiffs, the Class, and the Medicaid beneficiaries represented by the organizational Plaintiffs under42 U.S.C. § 1396a(a)(43)(A).
50. The Act also requires states to provide for "providing or arranging for the provision of such screening services [the EPSDT examinations about which Defendants are required to inform children and their families] in all cases where they are requested." 42 U.S.C. § 1396a(a)(43)(B).
51. The individual Plaintiffs, the Class, and the Medicaid beneficiaries represented by the organizational Plaintiffs have not been provided requested screening services.
52. Defendants have refused or failed to meet their obligations to the individual Plaintiffs, the Class, and the Medicaid beneficiaries represented by the organizational Plaintiffs under 42 U.S.C. § l396a(a)(43)(B).
53. Finally, the Act requires states to provide for "arranging for (directly or through referral to appropriate agencies, organizations, or individuals) corrective treatment the need for which is disclosed by such child health screening services." 42 U.S.C. § 1396a(a)(43)(C).
54. The individual Plaintiffs, the Class, and .the Medicaid beneficiaries represented by the organizational Plaintiffs have not been provided corrective treatment for medical or dental conditions discovered during a screening examination.
55. Defendants have refused or failed to meet their obligations to the individual Plaintiffs, the Class, and the Medicaid beneficiaries represented by the organizational Plaintiffs under42 U.S.C. § 1396a(a)(43)(C).

!2532685.1.UTIGATION

-22-

56. Further, Defendants have a duty to monitor adequately the actions (and inaction) ofthe MCOs with which Defendants contract to manage the Medicaid program and coordinate the care ofMedicaid beneficiaries. 42 U.S.C. § 1396u-2(b)(5) and (c). Defendants are breaching this duty. Defendants' failure to monitor and oversee theMCOs to which Defendants delegated the responsibility to provide Medical Assistance for EPSDT and other services required under federal law effectively denies Plaintiffs the right to Medical Assistance and other services required under federal law.
V. CLAIMS FOR RELIEF
First Cause of Action
Failure to Provide Medical Assistance for EPSDT to all Eligible Children With Reasonable Promptness
42 U.S.C. §§ !396a(a)(8), (a)(!O) and 1396d(a), (r)
57. Plaintiffs incorporate the allegations set forth in paragraphs 1 through 56, as though fully set forth herein.
58. Defendants' acts or omissions are in violation of 42 U.S.C. § 1396a(a)(8) and (a)(lO), as defined by 42 U.S.C. § 1396d(a) and (r).
59. Defendants' violation of 42 U.S.C. § 1396a(a)(8) and (a)(lO), as defined by 42 U.S.C. § 1396d(a) and 1396d(r), provides a cause of action to Plaintiffs under 42 U.S.C. § 1983, inasmuch as Defendants, under color of state law, custom, or usage, have deprived, are depriving, and will continue to deprive the individual Plaintiffs, the Class, and the Medicaid

12532685.l.liTIGATION

-23-

beneficiaries represented by the organizational Plaintiffs oftheir clearly established rights under 42 U.S.C. § 1396a(a)(8) and (a)(IO), as defined by 42 U.S.C. § 1396d(a) and (r).
60. Defendants' violation of 42 U.S.C. § 1396a(a)(8) and (a)(IO) harms the organizational Plaintiffs in that the violations impose otherwise unnecessary expenditures of organizational resonrces upon the organizations.
61. Defendants' violation of 42 U.S.C. § 1396a(a)(8) and (a)(IO) harms the individual Plaintiffs, the Class, and the Medicaid beneficiaries represented by the organizational Plaintiffs by depriving them ofmedically necessary care, which in tnrn results in the needless infliction of pain, the endangerment of young lives, the disruption oflearning, development and growth and the stunting of children's chances to achieve their full potential.
62. The harm to the individual Plaintiffs, the Class, and the Medicaid beneficiaries represented by the organizational Plaintiffs is irreparable and the individual Plaintiffs, the Class, and the Medicaid beneficiaries represented by the organizational Plaintiffs have no adequate remedy at law to prevent the continuing wrong and irreparable injury caused by Defendants' acts Or omtSSlOTIS.

Second Cause of Action Denial of Basic Child Healthcare Outreach and Information

42 U.S.C. § 1396a(a)(43)(A)

63. Plaintiffs incorporate the allegations set forth in paragraphs 1 through 62, as though fully set forth herein.
64. Defendants' acts or omissions are in violation of 42 U.S.C. § 1396a(a)(43)(A).

12532685.!.UTIGATION

-24-

65. The individual Plaintiffs, the Class, and Medicaid beneficiaries represented by the organizational Plaintiffs have not actually received required information about the availability of EPSDT and/or the need for immunizations, and/or they have not effectively received required information about the availability ofEPSDT and/or the need for innnunizations.
66. Defendants' violation of 42 U.S.C. § 1396a(a)(43)(A) provides a cause of action to Plaintiffs under 42 U.S.C. § 1983, inasmuch as Defendants, under color of state law, custom, or usage, have deprived, are depriving, and will continue to deprive the individual Plaintiffs, the Class and the Medicaid beneficiaries represented by the organizational Plaintiffs of their clearly established rights under 42 U.S.C. § 1396a(a)(43)(A).
67. Defendants' violation of 42 U.S.C. § 1396a(a)(43)(A) harms the organizational plaintiffs in that the violations impose otherwise unnecessary expenditures oforganizational resources upon the organizations.
68. Defendants' violation of 42 U.S.C. § 1396a(a)(43)(A) harms the individual Plaintiffs, the Class and the Medicaid beneficiaries represented by the organizational Plaintiffs in that it results in deprivation ofmedically necessary care, which in turn results in the needless infliction of pain, the endangerment of young lives, the disruption of!earning, development and growth and the stunting of children's chances to achieve their full potential.
69. The harm to the individual Plaintiffs, the Class, and the Medicaid beneficiaries represented by the organizational Plaintiffs is irreparable and the individual Plaintiffs, the Class, and the Medicaid beneficiaries represented by the organizational Plaintiffs have no adequate remedy at law to prevent the continuing wrong and irreparable injury caused by Defendants' acts
Or OtnlSSlOUS.

I2532685.I.LITIGATION

-25-

Third Cause of Action Denial ofRequested Screening Services
42 U.S.C. § 1396a(a)(43)(B)
70. Plaintiffs incorporate the allegations set forth in paragraphs 1 through 69, as though fully set forth herein.
71. Defendants' acts or omissions are in violation of42 U.S.C. § 1396a(a)(43)(B). 72. Defendants' violation of 42 U.S.C. § 1396a(a)(43)(B) provides a cause of action to Plaintiffs under 42 U.S.C. § 1983, inasmuch as Defendants, under color of state law, custom, or usage, have deprived, are depriving, and will continue to deprive the individual Plaintiffs, the Class and the Medicaid beneficiaries represented by the organizational Plaintiffs of their clearly established rights under 42 U.S.C. § 1396a(a)(43)(B). 73. Defendants' violation of 42 U.S.C. § !396a(a)(43)(B) harms the organizational plaintiffs in that the violations impose otherwise unnecessary expenditures oforganizational resources upon the organizations. 74. Defendants' violation of42 U.S.C. § 1396a(a)(43)(B) harms the individual Plaintiffs, the Class and the Medicaid beneficiaries represented by the organizational Plaintiffs
by depriving them ofmedically necessary care, which in turn results in the needless infliction of
pain, the endangerment of young lives, the disruption oflearning, development and growth and the stunting of children's chances to achieve their full potential.
75. The injury to the individual Plaintiffs, the Class, and the Medicaid beneficiaries represented by the organizational Plaintiffs is irreparable and the individual Plaintiffs, the Class,

12532685.1.I1TIGATION

-26-

and the Medicaid beneficiaries represented by the organizational Plaintiffs have no adequate remedy at law to prevent the continuing wrong and irreparable injury caused by Defendants' acts or omissions.
Fourth Cause of Action Denial of Corrective Treatment
42 u.s.c_ § 1396aCa)C43lCCl
76. Plaintiffs incorporate the allegations set forth in paragraphs 1 through 75, as though fully set forth herein.
77. Defendants' acts or omissions are in violation of42 D.S.C.§ l396a(a)(43)(C). 78. Defendants' violation of 42 U.S.C. § 1396a(a)(43)(C) provides a cause of action to Plaintiffs under 42 US.C. § 1983, inasmuch as Defendants, under color of state law, custom, or usage, have deprived, are depriving, and will continue to deprive the individual Plaintiffs, the Class and the Medicaid beneficiaries represented by the organizational Plaintiffs oftheir clearly established rights under 42 U.S.C. § 1396a(a)(43)(C). 79. Defendants' violation of42 U.S.C. § 1396a(a)(43)(C) harms the organizational plaintiffs in that the violations impose otherwise unnecessary expenditures oforganizational resources upon the organizations. 80. Defendants' violation of 42 U.S.C. § 1396a(a)(43)(C) harms the individual Plaintiffs, the Class and the Medicaid beneficiaries represented by the organizational Plaintiffs by depriving them ofmedically necessary care, which in turn results in the needless infliction of

l2532685.LLITIGATION

-27-

pain, the endangennent of young lives, the disruption ofleaming, development and growth and the stunting of children's chances to achieve their full potential.
81. The injury to the individual Plaintiffs, the Class, and the Medicaid beneficiaries represented by the organizational Plaintiffs is irreparable and the individual Plaintiffs, the Class, and the Medicaid beneficiaries represented by the organizational Plaintiffs have no adequate remedy at law to prevent the continuing wrong and irreparable injury caused by Defendants' acts or omissions.
VI. REQUEST FOR RELIEF
WHEREFORE, Plaintiffs, on behalf of themselves and all others similarly situated, respectfully request that this Court grant the following relief:
1. Assert jurisdiction over this action. 2. CertifY this action as a class action pursuant to FED. R. CIV. P. 23 on behalf of the class defined above. 3. Grant declaratory reliefpursuant to FED. R. CIV. P. 57, declaring unlawful Defendants' policy and practice of denying the individual Plaintiffs, the Class, and the Medicaid beneficiaries represented by the organizational Plaintiffs the Medical Assistance for EPSDT and other services to which they are entitled under the laws cited herein. 4. Issue injunctive reliefpursuant to FED. R. CI\i. P. 65, prohibiting Defendants from violating the rights ofthe individual Plaintiffs, the Class, and the Medicaid beneficiaries represented by the organizational Plaintiffs as complained of herein and requiring them to take such actions as are necessary to remedy their past violations.

!2532685.!.LITIGATION

-28-

5. Appoint a Special Master pursuant to FED. R. CN. P. 53 to oversee Defendants' compliance with the Court's orders.
6. Award Plaintiffs reasonable attorneys' fees and costs, as authorized by 42 U.S.C. § 1988 and 28 U.S.C. § 1920.
7. Grant such other relief as may be deemed proper by the Court.

Dated: October 11, 2006 OfCounsel: Jane Perkins NATIONAL HEALTH LAW PROGRAM 211 N. Columbia Street Chapel Hill, NC 27514 (919) 968-6308
12532685.l.LITIGATION

By: /sf Richard L. Berkman
Richard L. Berkman DECHERTLLP Cira Centre, 2929 Arch Street Philadelphia, PA 19104-2808 (215) 994-2684
Marilyn Mullane MICHIGAN LEGAL SERVICES 900 Michigan Building 220 Bagley Street Detroit, MI 48226 (313) 964-4130
Susan McParland MICHIGAN ASSOCIATION FOR CHILDREN WITH EMOTIONAL DISORDERS 30233 Southfield Road, Suite 219 Southfield, MI 48076 (248) 433-2200
Jennifer R. Clarke PUBLIC INTEREST LAW CENTER OF PHILADELPHIA 125 South 9th Street, Suite 700 Philadelphia, PA 19107 (215) 627-7100
-29-

CERTIFICATE OF SERVICE
I, Richard L. Berkman, hereby certify that, on October 11, 2006, I filed a true and correct copy of the foregoing Second Amended Complaint electronically and it is available for viewing and downloading from the ECF system. This document was served electronically on the following:
Luttrell D. Levingston MI Department of Attorney General (Detroit) 3030 W. Grand Boulevard Suite 10-200 Detroit, MI 48202 313-456-0280 levingstonl@michigan.gov Morris J. Klau MI Department of Attorney General (Detroit) 3030 W. Grand Boulevard Suite 10-200 Detroit, MI 48202 313-456-0281 k:laum@michigan.gov
Is/ Richard L. Berkman Richard L. Berkman
ll533067.l.LlTIGAl10N

 
 KeyCite Yellow Flag - Negative Treatment Abrogation Recognized by Long Term Care Pharmacy Alliance v. Ferguson, 1st Cir.(Mass.), March 17, 2004
289 F.3d 852 United States Court of Appeals,
Sixth Circuit.
WESTSIDE MOTHERS, a Michigan Welfare Rights Organization; Michigan League for Human
Services, Inc.; Families On the Move, Inc.; American Academy of Pediatrics; American Academy of Pediatric Dentists; B.K., by her next friend Lois Ann K.; D.J., by her next friend Tangela W.; Dn.J., by her next friend Tangela W.; Dm.J., by his next friend Tangela W.; K.K., by her next friend Vicki K.; K.T., by her next friend Veda
T.; J.T., by his next friend Veda T., Plaintiffs–Appellants, v.
James K. HAVEMAN, Jr., Director of the State of Michigan Department of Community Health; Robert Smedes, Deputy Director of the Medical
Services Administration, Defendants–Appellees, United States of America, Intervenor.
No. 01–1494. |
Argued: Jan. 24, 2002. |
Decided and Filed: May 15, 2002.
Synopsis Welfare rights organization brought action against state officials under § 1983, seeking injunctive relief and the appointment of a special master to end the state’s alleged systemic deprivation of early and periodic screening, diagnosis, and treatment services under its Medicaid program. The United States District Court for the Eastern
District of Michigan, Robert H. Cleland, J., 133 F.Supp.2d 549, dismissed action. Organization appealed. The Court of Appeals, Merritt, Circuit Judge, held that: (1) Medicaid program adopted by state was not merely contract between state and federal government, but rather had force and effect of federal law; (2) action was not barred by sovereign immunity; (3) Medicaid Act’s medical screening and treatment provisions created right privately enforceable against state officials through § 1983; and (4) professional medical organizations had standing to assert claim against state officials for violation of the Medicaid Act provisions.

Affirmed in part, reversed in part, and remanded. Procedural Posture(s): On Appeal; Motion to Dismiss.

West Headnotes (14)

[1]

Health

State participation in federal programs

Although participation in the Medicaid program is voluntary, participating states must comply with certain requirements imposed by the Medicaid Act and regulations promulgated by the Secretary of Health and Human Services. Social Security Act, § 1901 et seq., as amended,
42 U.S.C.A. § 1396 et seq.

5 Cases that cite this headnote

[2]

Health

State participation in federal programs

Medicaid program adopted by state was not merely contract between state and federal government, but rather had force and effect of federal law once state agreed to participate. Social Security Act, § 1901 et seq., as amended,
42 U.S.C.A. § 1396 et seq.

2 Cases that cite this headnote

[3] United States Spending
Acts validly passed under Congress’s spending power are supreme law of the land, pursuant to the supremacy clause. U.S.C.A. Const. Art. 1, § 8, cl. 1; U.S.C.A. Const. Art. 6, cl. 2.
7 Cases that cite this headnote

1

[4] Federal Courts Abrogation by Congress
Federal Courts Waiver by State;  Consent
Congress may abrogate a state’s immunity from suit under the Fourteenth Amendment or a state may consent to suit. U.S.C.A. Const.Amends. 11, 14.
5 Cases that cite this headnote
[5] Federal Courts Suits for injunctive or other prospective or
equitable relief;  Ex parte Young doctrine Federal Courts
Agencies, officers, and public employees
Under the doctrine developed in Ex parte Young and its progeny, a suit that claims that a state official’s actions violate the constitution or federal law is not deemed a suit against the state, and so barred by sovereign immunity, so long as the state official is the named defendant and the relief sought is only equitable and prospective. U.S.C.A. Const.Amend. 11.
14 Cases that cite this headnote
[6] Federal Courts Suits for injunctive or other prospective or
equitable relief;  Ex parte Young doctrine
When a court addresses a claim made against state, it should simply ask whether a complainant alleges an ongoing violation of federal law and seeks relief properly characterized as prospective. U.S.C.A. Const.Amend. 11.
8 Cases that cite this headnote
[7] Federal Courts Suits for injunctive or other prospective or

equitable relief;  Ex parte Young doctrine Federal Courts
Agencies, officers, and public employees
Action by welfare rights organization against state officials, seeking prospective injunctive relief to end officials’ alleged continuing violation of Medicaid Act resulting from alleged systemic deprivation of early and periodic screening, diagnosis, and treatment services for eligible persons, was not barred by sovereign immunity; suit sought to prevent officials from acting unlawfully, which officials had no legal right to do, state was not real party in interest, since Medicaid was not merely a contract, but binding federal law, and Medicaid did not provide detailed remedial scheme for enforcement against state for such violations. U.S.C.A. Const.Amend. 11; Social Security Act, § 1901 et seq., as amended, 42 U.S.C.A. § 1396 et seq.
18 Cases that cite this headnote
[8] Federal Courts Suits for injunctive or other prospective or
equitable relief;  Ex parte Young doctrine Federal Courts
Agencies, officers, and public employees
An injunction to prevent a state official from doing that which he has no legal right to do is not an interference with the discretion of an official, in determining whether action seeking such injunction is barred by sovereign immunity. U.S.C.A. Const.Amend. 11.

[9]

Action

Statutory rights of action

A statute will be found to create an enforceable right if, after a particularized inquiry, the court concludes (1) the statutory section was intended to benefit the putative plaintiff, (2) it sets a binding obligation on a government unit, rather than merely expressing a congressional preference, and (3) the interests the plaintiff

2

asserts are not so vague and amorphous that their enforcement would strain judicial competence.
13 Cases that cite this headnote
[10] Health Eligibility for Benefits
Medicaid-eligible children under the age of twenty-one are the intended beneficiaries of the screening and treatment provisions under the Medicaid Act. Social Security Act, § 1901 et seq., as amended, 42 U.S.C.A. § 1396 et seq. 5 Cases that cite this headnote

actual or threatened injury, (2) fairly traceable to the defendant’s challenged action, which (3) can likely be redressed by a favorable decision.
[13] Associations Actions by or Against Associations
An association has standing to bring suit on behalf of its members when: (1) its members would otherwise have standing to sue in their own right, (2) the interests it seeks to protect are germane to the organization’s purpose, and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.

[11] Civil Rights Public Services, Programs, and Benefits
Medicaid Act’s medical screening and treatment provisions created right privately enforceable against state officials through § 1983, and thus welfare rights organization had cause of action under § 1983 for violation of those provisions; Medicaid eligible children were intended beneficiaries of Act provisions, provisions set binding obligation on state officials, provisions were not so vague or amorphous as to defeat judicial enforcement, and Congress did not explicitly foreclose recourse to § 1983 or establish remedial scheme under Act to supplant § 1983. Social Security Act, § 1901 et seq., as
amended, 42 U.S.C.A. § 1396 et seq.; 42 U.S.C.A. § 1983.
28 Cases that cite this headnote

[14] Corporations and Business Organizations Persons entitled to sue;  standing
Professional medical organizations had standing to assert claim against state officials for violation of the Medicaid Act provisions, requiring early and periodic screening, diagnosis, and treatment for Medicaid-eligible children; members had alleged injury-in-fact, in that limitation of Medicaid services resulted in reduced payment to members, injury was traceable to state officials’ violation, and injury could be redressed through favorable injunctive relief. Social Security Act, § 1902(a)(30)(A), as amended, 42 U.S.C.A. § 1396a(a)(30)(A).
4 Cases that cite this headnote

[12] Federal Civil Procedure In general;  injury or interest
Federal Civil Procedure Causation;  redressability
To have standing a litigant must show (1) some

Attorneys and Law Firms
*855 Marilyn T. Mullane (briefed), Michigan Legal Services, Detroit, MI, Lourdes A. Rivera (briefed), National Health Law Program Inc., Los Angeles, CA, Thomas K. Gilhool (argued and briefed), Public Interest Law Center of Philadelphia, Philadelphia, PA, Jennifer R.
3

Clarke (argued and briefed), Kelly L. Darr (briefed), Robin P. Sumner (briefed), Jacob I. Kobrick (briefed), Dechert, Price & Rhoads, Philadelphia, PA, Susan K. McParland (briefed), Michigan Association for Children, Southfield, MI, Martha Jane Perkins (briefed), National Health Law Program, Chapel Jill, NC, for Plaintiffs–Appellants.
Erwin Chemerinsky (briefed), Los Angeles, CA, David T. Goldberg, David T. Goldberg Law Office, New York, NY, Phyllis James (briefed), City of Detroit Law Department, Detroit, MI, James L. Feldesman (briefed), Feldesman, Tucker, Leifer, Fidell & Bank LLP, Washington, DC, Larry S. Gage (briefed), Barbara D.A. Eyman (briefed), Charles Luband (briefed), Aimee N. Wall (briefed), Powell, Goldstein, Frazer & Murphy, Washington, DC, Drew S. Days, III (briefed), Morrison & Foerster, Washington, DC, Fordham E. Huffman (briefed), Chad A. Readler (briefed), Jones, Day, Reavis, & Pogue, Columbus, OH, Timothy P. Heather (briefed), Benjamin, Yocum & Heather, Cincinnati, OH, Richard Clayton Trotter (briefed), Texas Justice Foundation, San Antonio, TX, for Amici Curiae.
Erica Weiss Marsden (argued and briefed), Office of the Attorney General, Social Services Division, Lansing, MI, for Defendants–Appellees.
Mark B. Stern (briefed), Alisa B. Klein (argued and briefed), U.S. Department of Justice, Civil Division, Appellate Section, Washington, DC, for Intervenor.
Patrick W. Beatty (briefed), Rebecca L. Thomas (briefed), Robert C. Maier (briefed), Darrell M. Pierre, Jr. (briefed), Office of the Attorney General of Ohio, Columbus, OH, for Amici Curiae.
Before: MERRITT, BOGGS, and MOORE, Circuit Judges.
OPINION
MERRITT, Circuit Judge.
This suit filed under 42 U.S.C. § 1983 alleges that the state of Michigan has failed to provide services required by the Medicaid program. Plaintiffs, Westside Mothers, other advocacy and professional organizations, and eight

named individuals allege that defendants James Haveman, director of the Michigan Department of Community Health, and Robert Smedes, deputy director of the Michigan Medical Services Administration, did not provide the early and periodic screening, diagnosis, and treatment services mandated by the Medicaid Act and related laws.
[1] The Medicaid program, created in 1965 when Congress added Title XIX to the Social Security Act, provides a federal subsidy to states that choose to reimburse poor
individuals for certain medical care. See *856 42 U.S.C § 1396 et seq. (1994 & Supp.2001) (“Medicaid
Act”); Harris v. McRae, 448 U.S. 297, 301, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980). “Although participation in the program is voluntary, participating states must comply with certain requirements imposed by the Act and regulations promulgated by the Secretary of Health and
Human Services.” Wilder v. Virginia Hosp. Assoc., 496 U.S. 498, 502, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990). Like all other states, Michigan participates in the Medicaid program. Since 1997, operating under a waiver from the Health Care Finance Administration, Michigan has provided eligible residents Medicaid services by requiring them to enroll in Health Maintenance Organizations, which provide medical care in exchange for a flat monthly fee per participant. J.A. at 165–71.
The Medicaid Act and related regulations set out a detailed list of services every state program must provide.
See 42 U.S.C. § 1396 et seq.; 41 C.F.R. §§ 430 et seq. (2000). The Act allows the Secretary of Health and Human Services to limit or end payments to a state whose Medicaid program does not provide these services. See
42 U.S.C. § 1396c.
At issue here is the federal requirement that participating states provide “early and periodic screening, diagnostic, and treatment services ... for individuals who are eligible under the plan and are under the age of 21.” Id. § 1396d(a)(4)(B); see also id. § 1396d(r) (defining such services); 41 C.F.R. §§ 441.55–.62 (same). The required services include periodic physical examinations, immunizations, laboratory tests, health education, see
42 U.S.C. § 1396d(r)(1), eye examinations, eyeglasses,
see id. § 1396d(r)(2), teeth maintenance, see id. § 1396d(r)(3), diagnosis and treatment of hearing disorders,
and hearing aids, see id. § 1396d(r)(4).
In 1999, plaintiffs sued the named defendants under § 1983, which creates a cause of action against any person who under color of state law deprives an individual of
4

“any right, privileges, or immunities secured by the

Constitution and laws” of the United States. 42 U.S.C. § 1983. They alleged that the defendants had refused or failed to implement the Medicaid Act, its enabling regulations and its policy requirements, by (1) refusing to provide, and not requiring participating HMOs to provide,

the comprehensive examinations required by §§

1396a(a)(43) and 1396d(r)(1) and 42 C.F.R. § 441.57; (2) not requiring participating HMOs to provide the necessary health care, diagnostic services, and treatment

required by § 1396d(r)(5); (3) not effectively informing plaintiffs of the existence of the screening and

treatment services, as required by § 1396a(a)(43); (4) failing to provide plaintiffs the transportation and scheduling help needed to take advantage of the screening

and treatment services, as required by

§

1396a(a)(43)(B) and 42 C.F.R. § 441.62; and (5)

developing a Medicaid program which lacks the capacity

to deliver to eligible children the care required by §§

1396(a)(8), 1396a(a)(30)(A), and 1396u–2(b)(5). J.A. 38–46.

Defendants moved to dismiss the plaintiffs and for dismissal of the suit. In 1999, the district court granted defendants’ motion to dismiss as plaintiffs four organizations.1 It dismissed the Michigan League for Human Services and the Michigan Welfare Rights Organization on the grounds that they lacked constitutional standing, and it dismissed the Michigan chapters of the American Academy of Pediatrics *857 and of the American Academy of Pediatric Dentists on the grounds that they lacked prudential standing. It allowed the remaining organizations and individuals to continue as plaintiffs.

In March 2001 the district court granted defendants’
motion to dismiss all remaining claims. See Westside Mothers v. Haveman, 133 F.Supp.2d 549, 553 (E.D.Mich.2001). In a detailed and far-reaching opinion, the district court held that Medicaid was only a contract between a state and the federal government, that spending-power programs such as Medicaid were not supreme law of the land, that the court lacked jurisdiction over the case because Michigan was the “real defendant and therefore possess[ed] sovereign immunity against suit,” id., that in this case Ex parte Young was unavailable to circumvent the state’s sovereign immunity, and that
even if it were available § 1983 does not create a cause of action available to plaintiffs to enforce the provisions in question.

This appeal followed. We reverse on all issues presented.

Analysis
A. Medicaid Contracts and the Spending Power Much of the district court’s decision rests on its initial determinations that the Medicaid program is only a contract between the state and federal government and that laws passed by Congress pursuant to its power under the Spending Clause are not “supreme law of the land.” We address these in turn.
1. Whether Medicaid is only a contract.—The district court held that “the Medicaid program is a contract between Michigan and the Federal government.”
Westside Mothers, 133 F.Supp.2d at 557. The program, it points out, is not mandatory; states choose whether to participate. See 42 U.S.C. § 1396b (empowering the Secretary to pay funds to states that submit Medicaid plans). If a state does choose to participate, Congress may then “condition receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives.” Westside Mothers, 133 F.Supp.2d at 556–57 (quoting South Dakota v. Dole, 483 U.S. 203, 206, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987)).
To characterize precisely the legal relationship formed between a state and the federal government when such a program is implemented, the district court turned to two Supreme Court opinions on related subjects. In Pennhurst State School and Hosp. v. Halderman (“Pennhurst I ”), the Court described the Medicaid program as “much in the nature of a contract,” and spoke of the “ ‘contract’ ” formed between the state and the federal government.
451 U.S. 1, 17, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981) (quotation marks in original). The relevant passage reads in full:
Unlike legislation enacted under § 5 [of the Fourteenth Amendment], however, legislation enacted pursuant to the spending power is much in the nature of a contract: in return for federal funds, the States agree to comply with federally
5

imposed conditions. The legitimacy of Congress’s power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of this “contract.”
Pennhurst I at 17, 101 S.Ct. 1531 (emphasis added).
Justice Scalia expanded on this contract analogy in his concurrence in Blessing v. Freestone. He maintained that the relationship was “in the nature of a contract” because:
The state promises to provide certain services to private individuals, in exchange for which the Federal government promises to give the State funds. In contract law, when such an arrangement *858 is made (A promises to pay B money, in exchange for which B promises to provide services to C), the person who receives the benefit of the exchange of promises between two others (C) is called a third-party beneficiary.
520 U.S. 329, 349, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997) (Scalia, J., concurring).
[2] Drawing on above language, the district judge then concluded that the “Medicaid program is a contract between Michigan and the Federal government,”
Westside Mothers, 133 F.Supp.2d at 557, further describing it as a “contract ... between sovereigns,” and “the Medicaid contract,” id. at 558. The only significant difference between Medicaid and an ordinary contract, he asserted, is “the sovereign status of the parties,” which limits the available remedies each can seek against the other. Id.
Contrary to this narrow characterization, the Court in Pennhurst I makes clear that it is using the term “contract” metaphorically, to illuminate certain aspects of the relationship formed between a state and the federal government in a program such as Medicaid. It does not say that Medicaid is only a contract. It describes the program as “much in the nature of” a contract, and places the term “contract” in quotation marks when using it

alone. Id., 451 U.S. at 17, 101 S.Ct. 1531. It did not limit the remedies to common law contract remedies or suggested that normal federal question doctrines do not apply. Justice Scalia’s concurrence in Blessing does not alter this.
Binding precedent has put the issue to rest. The Supreme Court has held that the conditions imposed by the federal government pursuant to statute upon states participating in Medicaid and similar programs are not merely contract provisions; they are federal laws. In Bennett v. Kentucky Department of Education, Kentucky argued that a federal-state grant agreement “should be viewed in the
same manner as a bilateral contract.” 470 U.S. 656, 669, 105 S.Ct. 1544, 84 L.Ed.2d 590 (1985). The Court rejected this approach, holding that, “[u]nlike normal contractual undertakings, federal grant programs originate in and remain governed by statutory provisions expressing the judgment of Congress concerning desirable
public policy.” Id.; see also Boatman v. Hammons, 164 F.3d 286, 288 (6th Cir.1998) (“States ... must follow federal law in managing the [Medicaid] program”). The fact that these provisions have the binding force of law means that Medicaid and similar federal grant programs are not subject merely to doctrines of contract interpretation.
2. Whether acts passed under the Spending Power are Supreme Law of the Land.—After holding that Medicaid is only a contract to pay money enacted under the spending power, the district court then held that programs enacted pursuant to the Constitution’s spending power are not the “supreme law of the land” and do not give rise to remedies invoked for the violation of federal statutes. See
Westside Mothers, 133 F.Supp.2d at 561–62.2 Relying on its determination that Medicaid and similar programs are “contracts consensually entered into by the States with the Federal Government ...,” the district court then reasons that they are “not statutory *859 enactments by which States must automatically submit to federal
prerogatives.” Id., 133 F.Supp.2d at 561. There are two ways to understand this passage. One is that the district court is merely following the logic of its previous finding, and holding that federal-state programs are not supreme law because they are only contracts. We have already rejected the line of reasoning that begins with the assumption that Medicaid is only a contract.
The district court may also be claiming that acts passed under the spending power are not supreme law because the spending power only gives Congress the power to set up these programs, not to force states to participate in
them. See id. at 561–62. A state can decline to
6

participate in Medicaid. See id. at 562. “Because congressional enactments pursuant to the Spending Power that set forth the terms of federal-state cooperative agreements depend on the voluntary agreement of participating States ...,” the district court concludes, they are “not within the ambit of the Supremacy Clause [and so] are not the supreme law of the land.” Id. It erroneously states that its conclusion is dictated “by the [Supreme] Court’s holdings in Alden, Printz, New York, South Dakota, and Pennhurst I.” Id. Alden v. Maine holds that sovereign immunity prevents the federal government from forcing unconsenting states to submit to suit in their
own courts. See 527 U.S. 706, 119 S.Ct. 2240, 144
L.Ed.2d 636 (1999). Both Printz v. United States, 521 U.S. 898, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997), and
New York v. United States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992), hold that Congress violates the Tenth Amendment if it compels a state to enact legislation or implement a specific regulatory scheme. South Dakota upholds the power of Congress to place conditions on a state’s receipt of federal funds.
483 U.S. at 211–12, 107 S.Ct. 2793. Pennhurst I holds that if Congress wishes to impose obligations on states that choose to participate in volitional spending power
programs, it must make the obligations explicit. 451 U.S. at 25, 101 S.Ct. 1531.
In Townsend v. Swank, we do find language by Chief Justice Burger in a one-paragraph concurrence to a unanimous opinion that laws passed under the spending
power are “in no way mandatory on the states.” 404 U.S. 282, 292, 92 S.Ct. 502, 30 L.Ed.2d 448 (1971) (Burger, C.J., concurring in the result). The Chief Justice appeared merely to be noting that the Supremacy Clause does not compel states to participate in programs enacted
under the spending power. See Quern v. Mandley, 436 U.S. 725, 734, 98 S.Ct. 2068, 56 L.Ed.2d 658 (1978) (citing Burger’s concurrence to support the proposition that while “federal eligibility standards are mandatory on states that adopt [a program enacted under the spending clause, the law] in no way obligates a state to continue that program”). This concurrence does not establish that spending power enactments are not supreme law of the land. See O’Brien v. Massachusetts Bay Trans. Auth., 162 F.3d 40, 43 n. 2 (1st Cir.1998) (noting that “individual Justices have from time to time suggested that the authority for adhering to Federal law when Congress employs its spending power is not to be located in the Supremacy Clause. But these moments have been few and far between and ... have not debilitated the general conclusion that laws of a jurisdiction that receives federal funds must, when a relevant conflict looms, give way to Federal law”).

[3] The district court acknowledges that “the Supreme Court has in the past held that federal-state cooperative programs enacted under the Spending Power fall within

the ambit of the Supremacy Clause.” Westside

Mothers, 133 F.Supp.2d at 561 (citing *860 Blum v. Bacon, 457 U.S. 132, 102 S.Ct. 2355, 72 L.Ed.2d 728

(1982), Carleson v. Remillard, 406 U.S. 598, 92 S.Ct.

1932, 32 L.Ed.2d 352 (1972), Townsend, 404 U.S. 282, 92 S.Ct. 502, 30 L.Ed.2d 448). It then states that in “recent years ... the Supreme Court has conducted a more searching analysis of the nature and extent of the Supremacy Clause,” suggesting erroneously that its departure from precedent is dictated by recent Supreme Court jurisprudence. Id. The Court has recently held that, when a state agency accepts federal funds appropriated under the spending clause, the supremacy clause requires conflicting local law to yield. See Dalton v. Little Rock Family Planning Servs., 516 U.S. 474, 477–78, 116 S.Ct. 1063, 134 L.Ed.2d 115 (1996) (stating that a provision of a state constitution is invalid if it conflicts with the

Medicaid Act); accord

CSX Transp., Inc. v.

Easterwood, 507 U.S. 658, 663–64, 113 S.Ct. 1732, 123

L.Ed.2d 387 (1993); Lawrence County v.

Lead–Deadwood Sch. Dist. No. 40–1, 469 U.S. 256,

269–70, 105 S.Ct. 695, 83 L.Ed.2d 635 (1985). The

well-established principle that acts passed under

Congress’s spending power are supreme law has not been

abandoned in recent decisions.

Our court has followed these decisions. See, e.g., Planned Parenthood Affiliates of Mich. v. Engler, 73 F.3d 634, 637 (6th Cir.1996) (striking down a provision of Michigan law as conflicting with the Medicaid Act). We have found no decision by any other federal circuit court of appeals to the contrary. We reaffirm well-established precedent holding that laws validly passed by Congress under its spending powers are supreme law of the land.

B. Whether the suit is barred under sovereign immunity The district court next held that the plaintiffs’ suit is foreclosed by doctrines of sovereign immunity because Michigan is the “real party at interest” in the suit and plaintiffs cannot invoke any of the exceptions to sovereign immunity that would allow their suit.
Westside Mothers, 133 F.Supp.2d at 559–60.
[4] As explained by the Supreme Court in many cases, sovereign immunity, though partially codified in the
7

Eleventh Amendment, is a basic feature of our federal
system. See, e.g., Seminole Tribe of Florida v. Florida, 517 U.S. 44, 72–73, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). There are exceptions. Congress may abrogate a State’s immunity from suit under § 5 of the Fourteenth Amendment or a state may consent to suit. See
College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999). None of the exceptions that allow an individual to sue a state directly are at issue here, however. Though the record is not entirely clear, it appears that plaintiffs at first sued the
named defendants under § 1983, and only when the district court expressed skepticism about this avenue of attack did they invoke Ex parte Young as an alternative
mechanism to reach the defendants. See Westside Mothers, 133 F.Supp.2d at 575–76. Because sovereign immunity limits the jurisdiction of the Federal courts, we
address it before turning to § 1983.
[5] Under the doctrine developed in Ex parte Young and its progeny, a suit that claims that a state official’s actions violate the constitution or federal law is not deemed a suit against the state, and so barred by sovereign immunity, so long as the state official is the named defendant and the
relief sought is only equitable and prospective. See 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); see also,
e.g., Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). “Since Ex parte Young ... it has been settled that the Eleventh Amendment provides no shield for a state official *861 confronted by a claim that he had deprived another of a
federal right under the color of state law.” Hafer v. Melo, 502 U.S. 21, 30, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991) (citation omitted).
[6] [7] Of course, Ex parte Young is a “fiction” to the extent it sharply distinguishes between a state and an officer acting on behalf of the state, but it is a necessary fiction, required to maintain the balance of power between state and federal governments. “The availability of prospective relief of the sort awarded in Ex parte Young gives life to
the Supremacy Clause.” Coeur d’Alene, 521 U.S. at
293, 117 S.Ct. 2028 (quoting Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985)). When a court addresses a claim made under Ex parte Young it should simply ask “whether a complainant alleges an ongoing violation of federal law and seeks relief properly
characterized as prospective.” Id. at 296, 117 S.Ct. 2028 (O’Connor, J., concurring). On its surface this case fits squarely within Ex parte Young. Plaintiffs allege an ongoing violation of federal law, the Medicaid Act, and

seek prospective equitable relief, an injunction ordering the named state officials henceforth to comply with the law.
[8] The district court nonetheless held that Ex parte Young was inapplicable for four separate reasons. Two can be quickly dismissed. First, it held that plaintiffs could not invoke Ex parte Young because that doctrine can only be invoked to enforce federal laws that are supreme law of
the land. See Westside Mothers, 133 F.Supp.2d at 561–62. Since we held above that spending clause enactments are supreme law of the land, they may be the basis for an Ex parte Young action. Second, the district court held Ex parte Young is unavailable because under this doctrine a court lacks “authority to compel state
officers performing discretionary functions.” Id. at 574. This correctly states the holding in Young, but misunderstands what it means by “discretion.” “An injunction to prevent [a state official] from doing that which he has no legal right to do is not an interference
with the discretion of an officer.” Ex parte Young, 209
U.S. at 159, 28 S.Ct. 441 (quoted in Telespectrum, Inc. v. Public Service Com’n of Ky., 227 F.3d 414, 422 (6th Cir.2000)). Since the plaintiffs here claim that the defendants are acting unlawfully in refusing to implement mandatory elements of Medicaid’s screening and treatment program, they seek only to prevent the defendants from doing “what [they] have no legal right to do,” and their suit is permitted under Ex parte Young.
Third, the district court asserts that Ex parte Young is unavailable because the state “is the real party in interest when its officers act within their lawful authority.”
Westside Mothers, 133 F.Supp.2d at 562. It has two reasons for finding Michigan the real party in interest. Its first reason follows from its finding that Medicaid is a contract. If Medicaid were only a contract, then this would be a suit seeking to compel a state to specific performance of a contract. Such suits are barred under a
nineteenth century Supreme Court case, In re Ayers, 123 U.S. 443, 8 S.Ct. 164, 31 L.Ed. 216 (1887), which held that a “claim for injunctive relief against state officials under the Contracts Clause is barred by state sovereign immunity because the state [is] the real party at
interest.” In re Ellett, 254 F.3d 1135, 1145 (9th Cir.2001) (explicating In re Ayers ). We have already held that Medicaid is not merely a contract, but a federal statute. This suit seeks only to compel state officials to follow federal law, and thus is not barred by Ayers.
The district court also says erroneously that Michigan is the real party in interest because “[t]here is no personal, unlawful *862 behavior attributed” to the defendants
8

that plaintiffs seek to enjoin. Westside Mothers, 133 F.Supp.2d at 570. In their initial complaint, plaintiffs make clear that they are suing the named defendants because of “their failure to provide children in Michigan ... with essential medical, dental, and mental health services as required by federal law.” J.A. at 18 (emphasis added).
Finally, the district court refused to allow plaintiffs to proceed under Young because of the Supreme Court’s holding in Seminole Tribe that “[w]here Congress has prescribed a detailed remedial scheme for the enforcement against a State of a statutorily created right, a court should hesitate before casting aside those limitations and permitting an action against a state officer based upon Ex parte Young.” 517 U.S. at 74, 116 S.Ct. 1114. The Medicaid Act allows the Secretary of Health and Human Services to reduce or cut off funding to states that do not comply with the program’s requirements. See
Westside Mothers, 133 F.Supp.2d at 575. This one provision, the district court held, was a detailed remedial scheme sufficient to make Ex parte Young unavailable. See id.
We disagree. In Seminole Tribe, the Supreme Court found Ex parte Young was unavailable because Congress had established a “carefully crafted and intricate remedial scheme .... for the enforcement of a particular federal right.” 517 U.S. at 73–74, 116 S.Ct. 1114 (emphasis added). The mechanism established there included timetables, incentives, and “intricate procedures” to cajole states and Indian tribes to negotiate agreements on gambling. Id. at 74, 116 S.Ct. 1114. The scheme here, in contrast, simply allows the Secretary to reduce or cut off funds if a state’s program does not meet federal requirements. See 42 U.S.C. § 1396c. This is not a detailed “remedial” scheme sufficient to show Congress’s intent to preempt an action under Ex parte Young. Maryland Psychiatric Soc., Inc. v. Wasserman, 102 F.3d 717, 719 n * (4th Cir.1999) (rejecting an assertion that the Medicaid Act’s remedial scheme is sufficient to invoke the rule of Seminole Tribe ).
Plaintiffs seek only prospective injunctive relief from a federal court against state officials for those officials’ alleged violations of federal law, and they may proceed under Ex parte Young.
C. Whether there is a private right of action under § 1983
Section 1983 imposes liability on anyone who under

color of state law deprives a person of “rights, privileges, or immunities” secured by the laws or the constitution of
the United States. 42 U.S.C. § 1983. The Supreme Court and this court have held that in some circumstances a provision of the Medicaid scheme can create a right
privately enforceable against state officers through §
1983. See Wilder, 496 U.S. at 511–12, 110 S.Ct. 2510 (holding that the Boren Amendment to the Medicaid Act
created a right enforceable under § 1983); Audette v. Sullivan, 19 F.3d 254, 256 (6th Cir.1994) (applying the test set out in Wilder to determine if a particular Medicaid
provision creates a right enforceable under § 1983).
[9] In Blessing, the Supreme Court set down the framework for evaluating a claim that a statute creates a right privately enforceable against state officers through
§ 1983. See 520 U.S. at 340–41, 117 S.Ct. 1353. A statute will be found to create an enforceable right if, after a particularized inquiry, the court concludes (1) the statutory section was intended to benefit the putative plaintiff, (2) it sets a binding obligation on a government unit, rather than merely expressing a congressional preference, and (3) the interests the plaintiff asserts are not so “ ‘vague and amorphous’ that [their] enforcement
would strain judicial *863 competence.” Id. at 341,
117 S.Ct. 1353 (quoting Wright v. Roanoke Redevel. and Housing Auth., 479 U.S. 418, 437, 107 S.Ct. 766, 93 L.Ed.2d 781 (1987)). If these conditions are met, we presume the statute creates an enforceable right unless Congress has explicitly or implicitly foreclosed this. See
Blessing, 520 U.S. at 341, 117 S.Ct. 1353; Wood v. Tompkins, 33 F.3d 600, 605 (6th Cir.1994). The district court erred when it did not apply this test to evaluate plaintiffs’ claims.
[10] [11] We now apply this test. First, the provisions were clearly intended to benefit the putative plaintiffs, children who are eligible for the screening and treatment services.
See 42 U.S.C. § 1396a(a)(10)(A). “[I]t is well-settled that Medicaid-eligible children under the age of twenty-one ... are the intended beneficiaries of the [screening and treatment] provisions.” Dajour B. v. City of New York, 2001 WL 830674, at *8 (S.D.N.Y. July 23,
2001); accord Miller v. Whitburn, 10 F.3d 1315, 1319 (7th Cir.1993). We have found no federal appellate cases to the contrary. Second, the provisions set a binding obligation on Michigan. They are couched in mandatory rather than precatory language, stating that Medicaid
services “shall be furnished” to eligible children, 42 U.S.C. § 1396a(a)(8) (emphasis added), and that the screening and treatment provisions “must be provided,”
9

id. § 1396a(a)(10)(A), see also 42 C.F.R. § 441.56 (mandatory language). Third, the provisions are not so vague and amorphous as to defeat judicial enforcement, as the statute and regulations carefully detail the specific services to be provided. See 42 U.S.C. § 1396d(r). Finally, Congress did not explicitly foreclose recourse to
§ 1983 in this instance, nor has it established any remedial scheme sufficiently comprehensive to supplant
§ 1983. See Blessing, 520 U.S. at 346–47, 117 S.Ct. 1353.
Plaintiffs have a cause of action under § 1983 for alleged noncompliance with the screening and treatment provisions of the Medicaid Act.
D. Other Issues
1. Standing.—In a separate opinion, the district court dismissed as plaintiffs two advocacy organizations, the Michigan League for Human Services and the Michigan Welfare Rights Organization, and two professional organizations, the Michigan chapters of the American Academy of Pediatrics and of the American Academy of Pediatric Dentists. J.A. at 265–81. The Michigan League for Human Services does not appeal the district court’s ruling. We address the appeals of the other three organizations.
[12] [13] To have standing a litigant must show (1) some actual or threatened injury, (2) fairly traceable to the defendant’s challenged action, which (3) can likely be redressed by a favorable decision. See Cleveland Surgi–Center, Inc. v. Jones, 2 F.3d 686, 688 (6th Cir.1993). “[A]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Natl. Rifle Ass’n v. Magaw, 132 F.3d 272, 294 (6th Cir.1997) (citing
Hunt v. Washington Apple Adv’t Comm’n, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977)).
The district court held that the Welfare Rights Organization lacked constitutional standing because plaintiffs’ complaint contained little information about the organization, leaving the district court unable to

determine whether it met the requirements set out above. Plaintiffs’ appeal *864 asks us to reverse this holding but provides no facts that would lead us to second-guess the district court’s decision. Therefore, we affirm the dismissal of the Michigan Welfare Rights Organization as a plaintiff.
[14] The district court held that the two professional organizations lacked standing because their members could not sue in their own right, since they are not the intended beneficiaries of the Medicaid provision in
question, 42 U.S.C. § 1396a(a)(30)(A). See J.A. at 278–79. Plaintiffs counter that some provisions of the Medicaid act do have medical providers as intended
beneficiaries. See, e.g., Wilder, 496 U.S. at 509, 110 S.Ct. 2510. In Wilder, the Supreme Court found that medical providers were intended beneficiaries of the Boren Amendment to the Medicaid Act because that “provision establish[ed] a system for reimbursement of providers and is phrased in terms benefitting health care providers.” Id. Looking to the Medicaid provision here, we find similar language. The statute speaks of the need to “assure that payments ... are sufficient to enlist enough
providers.” 42 U.S.C. § 1396a(a)(30)(A). The two organizations claim that the defendants have imposed on them “otherwise unnecessary expenditures,” meaning that the organizations’ members have suffered an injury by not receiving compensation for medical services their members are ethically compelled to provide. See J.A. at 24–25. Their members have (1) alleged an injury-in-fact, limitation of Medicaid services that resulted in reduced payments, (2) shown this injury is traceable to defendants’ actions, and (3) shown the injury could be
redressed through a favorable decision, see Cleveland Surgi–Center, 2 F.3d at 688; and the organizations meet the requirements for associational standing. Therefore, we reverse the district court’s dismissal of the Michigan chapters of the American Academy of Pediatrics and of the American Academy of Pediatric Dentists as plaintiffs.
2. Defendant’s request for summary judgment.—Michigan also asks us to affirm the dismissal of the suit even if we disagree with the district court’s reasons for dismissing it. See Appellees’ Br. at 31. It gives numerous grounds apart from those relied on in the district court opinion, claiming inter alia that (1) the individual plaintiffs lack standing, (2) the state does provide the screening and treatment services, and (3) the plaintiffs fail to state a claim against Michigan, because plaintiffs allege only that a state contractor failed to provide a service. In support of its requests Michigan provides records, printed materials, flyers, and manuals that, it asserts, support its claims. The defenses raise factual and legal issues not addressed by the district court.
10

We are advised that discovery in this case has been stayed since at least October 26, 1999, some two years ago, and less than three months after the original complaint was filed. We decline to rule on the issues before the district court has made a factual record.

Accordingly we REVERSE the district court’s grant of summary judgment to defendants, AFFIRM in part and REVERSE in part the district court’s dismissal of organizational plaintiffs for lack of standing, and REMAND the case for further proceedings consistent with this opinion.

Conclusion

All Citations 289 F.3d 852, 2002 Fed.App. 0172P

Footnotes

1

In December 1999 the district court also disposed of part of plaintiffs’s fourth claim, that Michigan had not provided

required transportation assistance, on grounds of res judicata and collateral estoppel, finding those issues were

addressed in Boatman v. Hammons, 164 F.3d 286 (6th Cir.1998). That ruling is not appealed here.

2

The Supremacy Clause states that the “Constitution and the Laws of the United States which shall be made in

Pursuance thereof ... shall be the supreme Law of the Land; and the Judges in every state shall be bound thereby, any

Thing in the Constitution or the Laws of any State to the Contrary notwithstanding.” U.S. Const. art. VI, § 2. Congress’s

spending powers derive from the Spending Clause, which gives it “Power to lay and collect Taxes ... [to] provide for the

common Defense and general Welfare of the United States.” U.S. Const. art. I, § 8.

11

 
 KeyCite Yellow Flag - Negative Treatment Distinguished by Barry v. Lyon, 6th Cir.(Mich.), August 25, 2016
454 F.3d 532 United States Court of Appeals,
Sixth Circuit.
WESTSIDE MOTHERS; Families on the Move, Inc.; Michigan Chapter, American Academy of
Pediatrics; Michigan Chapter, American Association of Pediatric Dentists; K.E., by her next friend Tina E.; Ja. E., by her next friend Deana H.;
Je. E., by her next friend, Deana H.; J.C., by his next friend, Monica C.; and J.T., by his next friend,
Veda T., Plaintiffs–Appellants, v.
Janet OLSZEWSKI, in her official capacity as Director of the State of Michigan Department of
Community Health; and Paul Reinhart, in his official capacity as Deputy Director of the State of
Michigan Medical Services Administration, Defendants–Appellees.
No. 05–1669. |
Argued: March 9, 2006. |
Decided and Filed: July 17, 2006.
Synopsis Background: Welfare rights organization brought action against state officials under § 1983, seeking injunctive relief and appointment of special master to end state’s alleged systemic deprivation of early and periodic screening, diagnosis, and treatment services (EPSDT) under its Medicaid program. The United States District Court for the Eastern District of Michigan, 133 F.Supp.2d 549,dismissed action. Organization appealed. The Court of Appeals, 289 F.3d 852, affirmed in part, reversed in part, and remanded. State moved to dismiss or for summary judgment. The United States District Court for the Eastern District of Michigan, Robert H. Cleland, J.,
368 F.Supp.2d 740,granted motion in part.
Holdings: The Court of Appeals, Merritt, Circuit Judge, held that:
[1] law of case doctrine did not bar trial court from addressing question of whether plaintiffs had private right

of action under § 1983 to compel enforcement of various Medicaid provisions;
[2] Medicaid did not require state to provide medical services directly, but merely to provide financial assistance to eligible persons;
[3] accessibility provision of Medicaid statute did not confer private right of action to compel enforcement under § 1983; and
[4] allegations stated claim for violations of provision of Medicaid statute, requiring state to inform all eligible children about medical services available.
Affirmed in part, modified in part, and reversed in part.
Procedural Posture(s): On Appeal; Motion for Summary Judgment.

West Headnotes (17)

[1]

Health

State participation in federal programs

Although participation in the Medicaid program is voluntary, participating states must comply with certain requirements imposed by the Social Security Act and regulations promulgated by the Secretary of Health and Human Services. Social
Security Act, § 1901 et seq., 42 U.S.C.A. § 1396 et seq.

4 Cases that cite this headnote

[2] Federal Civil Procedure Clear or certain nature of insufficiency
A motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Fed.Rules Civ.Proc.Rule 12(b)(6), 28 U.S.C.A.
3 Cases that cite this headnote
1

[3] Federal Courts Law of the case in general
Law of case doctrine did not bar trial court from addressing question of whether intended beneficiaries of Medicaid statute had private right of action under § 1983 to compel enforcement of its early and periodic screening, accessibility, financial assistance, and treatment provisions, on remand from decision of the Court of Appeals, holding that private right of action existed under § 1983, where decision of Court of Appeals did not address specific
statutory provisions. 42 U.S.C.A. § 1983; Social Security Act, § 1902(a)(8, 10, 30, 43),
42 U.S.C.A. § 1396a(a)(8, 10, 30, 43).
9 Cases that cite this headnote

[4]

Courts

Previous Decisions in Same Case as Law of

the Case

The “law of the case doctrine” provides that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.

57 Cases that cite this headnote

[5]

Courts

Previous Decisions in Same Case as Law of

the Case

The “law of the doctrine” precludes a court from reconsideration of issues decided at an early stage of the litigation, either explicitly or by necessary inference from the disposition.

32 Cases that cite this headnote

[6] Federal Courts Law of the case in general
Federal Courts Mandate
Pursuant to the law of the case doctrine, and the complementary mandate rule, upon remand the trial court is bound to proceed in accordance with the mandate and law of the case as established by the appellate court.
29 Cases that cite this headnote

[7] Federal Courts Mandate
Under the mandate rule, on remand the trial court is required to implement both the letter and the spirit of the appellate court’s mandate, taking into account the appellate court’s opinion and the circumstances it embraces.
23 Cases that cite this headnote

[8]

Courts

Previous Decisions in Same Case as Law of

the Case

The law of the case doctrine precludes reconsideration of a previously decided issue unless one of three exceptional circumstances exists: (1) where substantially different evidence is raised on subsequent trial, (2) where a subsequent contrary view of the law is decided by the controlling authority, or (3) where a decision is clearly erroneous and would work a manifest injustice.

40 Cases that cite this headnote

[9] Federal Courts Law of the case in general
2

The law of the case doctrine is limited to those issues decided in the earlier appeal, and the district court may therefore consider on remand those issues not decided expressly or impliedly by the appellate court.
9 Cases that cite this headnote
[10] Federal Courts Effect of Decision in Lower Court
Where there is substantial doubt as to whether a prior appellate court actually decided an issue, the district court should not be foreclosed from considering the issue on remand.
8 Cases that cite this headnote
[11] Health State participation in federal programs
Provisions of Medicaid statute, requiring participating state to provide medical assistance to eligible beneficiaries, did not require state to provide medical services directly, but merely to provide financial assistance to those eligible persons to enable them to obtain the covered services; the Medicaid statute defined the term “medical assistance” as payment for the cost of the medical services, and the implementing regulations also indicated that financial assistance, rather than direct provision of the services, was required. Social Security Act, § 1902(a)(8, 10), 42 U.S.C.A. § 1396a(a)(8, 10); 42 C.F.R. §§ 435.911, 435.930.
27 Cases that cite this headnote
[12] Civil Rights Public Services, Programs, and Benefits
Provision of Medicaid statute, requiring participating state to ensure that medical services for eligible beneficiaries were

accessible and available, and requiring reimbursement rates for services in general be sufficient to enlist enough providers, did not confer private right of action to compel

enforcement of that provision under § 1983; provision had aggregate, rather than individual, focus, in that it did not identify individual benefits, but rather state’s obligations, and broad language of provision was ill-suited to judicial

remedy. 42 U.S.C.A. § 1983; Social Security

Act, § 1902(a)(30), 1396a(a)(30).

42 U.S.C.A. §

24 Cases that cite this headnote

[13] Civil Rights Rights Protected
Section 1983 provides redress only for a plaintiff who asserts a violation of a federal right, not merely a violation of federal law.
42 U.S.C.A. § 1983.
3 Cases that cite this headnote

[14] Civil Rights Rights Protected
The appropriate inquiry in determining whether a federal statute creates a private right that is enforceable under § 1983 is whether or not Congress intended to confer individual rights upon a class of beneficiaries. 42 U.S.C.A. § 1983.
6 Cases that cite this headnote

[15] Civil Rights Rights Protected
Critical to determining whether a statute creates a private right enforceable under § 1983 is
3

whether the pertinent statute contains rights-creating language that reveals congressional intent to create an individually enforceable right. 42 U.S.C.A. § 1983.
5 Cases that cite this headnote

[16] Civil Rights Public Services, Programs, and Benefits
Allegations by welfare rights organization that state participating in Medicaid program refused or failed to effectively inform eligible beneficiaries and their caretakers of the existence of the medical assistance children’s healthcare program, the availability of specific child healthcare services, and related assistance stated claim under § 1983 for violations of provision of Medicaid statute, requiring state to inform all eligible children about the medical services available to them. 42 U.S.C.A. § 1983; Social Security Act, § 1902(a)(43)(A),
42 U.S.C.A. § 1396a(a)(43)(A).
21 Cases that cite this headnote

[17] Civil Rights Nature and elements of civil actions

In order to establish a § 1983 claim, plaintiff’s complaint must allege that (1) the conduct in controversy was committed by a person acting under color of law, and (2) the conduct deprived the plaintiff of a federal right,

either constitutional or statutory.

42

U.S.C.A. § 1983.

3 Cases that cite this headnote

Attorneys and Law Firms *535 ARGUED: Jennifer R. Clarke, Public Interest Law

Center of Philadelphia, Philadelphia, Pennsylvania, for Appellants. Morris J. Klau, State of Michigan, Department of Attorney General, Detroit, Michigan, for Appellees. ON BRIEF: Jennifer R. Clarke, Public Interest Law Center of Philadelphia, Philadelphia, Pennsylvania, Arnon D. Siegel, Laura E. Robbins, Dechert LLP, Washington, D.C., for Appellants. Morris J. Klau, Luttrell D. Levingston, State of Michigan, Department of Attorney General, Detroit, Michigan, for Appellees.
Before: BOGGS, Chief Judge; MERRITT and MOORE, Circuit Judges.
OPINION
MERRITT, Circuit Judge.
This suit filed under 42 U.S.C. § 1983 alleges that the State of Michigan has failed to provide services required by the Medicaid program. Plaintiffs, Westside Mothers, other advocacy and professional organizations, and five named individuals, allege that Janet Olszewski, director of the Michigan Department of Community Health, and Paul Reinhart, deputy director of the Michigan Medical Services Administration, did not provide the early and periodic screening, diagnosis, and treatment (“EPSDT”) services mandated by the Medicaid Act.
[1] The Medicaid program, created in 1965 when Congress added Title XIX to the Social Security Act, provides federal financial assistance to States that choose to reimburse certain costs of medical treatment for the poor, elderly, and disabled. See 42 U.S.C. § 1396 et seq. (2000 & Supp.2005); Harris v. McRae, 448 U.S. 297, 301, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980). “Although participation in the program is voluntary, participating States must comply with certain requirements imposed by the Act and regulations promulgated by the Secretary of Health and Human Services.” Wilder v. Va. Hosp. Ass’n, 496 U.S. 498, 502, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990). At issue here is the requirement that participating States provide “early and periodic screening, diagnostic, and treatment services ... for individuals who are eligible under the plan and are under the age of 21.”
42 U.S.C. § 1396d(a)(4)(B); see also 42 U.S.C. §
4

1396d(r) (defining such services). The required services include periodic physical examinations, immunizations,
laboratory tests, health education, see § 1396d(r)(1),
*536 eye examinations, eyeglasses, see § 1396d(r)(2),
teeth maintenance, see § 1396d(r)(3), diagnosis and
treatment of hearing disorders, and hearing aids, see § 1396d(r)(4).

In 1999, plaintiffs filed a civil action pursuant to 42 U.S.C. § 1983, which creates a cause of action against any person who under color of state law deprives an individual of “any rights, privileges, or immunities secured by the Constitution and laws” of the United States. They alleged that the defendants had refused or failed to implement the Medicaid Act, its enabling regulations, and its policy requirements by: (1) refusing to provide, and not requiring participating HMOs to provide, the

comprehensive examinations required by 42 U.S.C.

§§ 1396a(a)(43), 1396d(r)(1) and 42 C.F.R. § 441.57; (2) not requiring participating HMOs to provide the necessary health care, diagnostic services, and treatment

required by 42 U.S.C. § 1396d(r)(5); (3) not effectively informing plaintiffs of the existence of the

screening and treatment services, as required by 42 U.S.C. § 1396a(a)(43); (4) failing to provide plaintiffs the transportation and scheduling help needed to take advantage of the screening and treatment services, as

required by 42 U.S.C. § 1396a(a)(43)(B) and 42 C.F.R. § 441.62; and (5) developing a Medicaid program that lacks the capacity to deliver to eligible children the

care required by

42 U.S.C. §§ 1396a(a)(8),

1396a(a)(30)(A), and 40–48.)

1396u–2(b)(5). (J.A. at

In March 2001 the district court granted defendants’ motion to dismiss the complaint pursuant to Federal Rule
of Civil Procedure 12(b)(6). See Westside Mothers v. Haveman, 133 F.Supp.2d 549 (E.D.Mich.2001). In a detailed and far-reaching opinion, the district court held that Medicaid was only a contract between a State and the federal government, that spending-power programs such as Medicaid were not supreme law of the land, that the court lacked jurisdiction over the case because Michigan was the “real defendant, and therefore possess[ed]
sovereign immunity against suit,” id. at 553, that in
this case Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), was unavailable to circumvent the State’s sovereign immunity, and that even if it were
available § 1983 does not create a cause of action available to plaintiffs to enforce the provisions in

question.
Plaintiffs appealed and, in an opinion dated May 15, 2002, a unanimous panel of the Sixth Circuit reversed all of these rulings. See Westside Mothers v. Haveman
(“ Westside Mothers I ”), 289 F.3d 852 (6th Cir.2002). Although our earlier decision focused predominantly on the jurisdictional grounds for the district court’s dismissal, we also considered “[w]hether there is a private right of
action under § 1983” for alleged noncompliance with
the Medicaid Act. Id. at 862–63. We held that the “district court erred when it did not apply [the test set out
in Blessing v. Freestone, 520 U.S. 329, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997),] to evaluate plaintiffs’
claims.” Id. at 863. We then applied the Blessing test to determine whether the screening and treatment provisions of the Medicaid Act create a right privately
enforceable against state officers through § 1983:
First, the provisions were clearly intended to benefit the putative plaintiffs, children who are eligible for the
screening and treatment services. See 42 U.S.C. § 1396a(a)(10)(A). “[I]t is well-settled that Medicaid-eligible children under the age of twenty-one ... are the intended beneficiaries of the [screening and treatment] provisions.” Dajour B. v. City of New York, 2001 WL 830674, at *8 (S.D.N.Y.
July 23, 2001); accord *537 Miller v. Whitburn, 10 F.3d 1315, 1319 (7th Cir.1993). We have found no federal appellate cases to the contrary. Second, the provisions set a binding obligation on Michigan. They are couched in mandatory rather than precatory language, stating that Medicaid services “shall be
furnished” to eligible children, 42 U.S.C. § 1396a(a)(8) (emphasis added), and that the screening
and treatment provisions “must be provided,” id. § 1396a(a)(10)(A), see also 42 C.F.R. § 441.56 (mandatory language). Third, the provisions are not so vague and amorphous as to defeat judicial enforcement, as the statute and regulations carefully detail the
specific services to be provided. See 42 U.S.C. § 1396d(r). Finally, Congress did not explicitly foreclose
recourse to § 1983 in this instance, nor has it established any remedial scheme sufficiently
comprehensive to supplant § 1983. See Blessing, 520 U.S. at 346–47, 117 S.Ct. 1353, 137 L.Ed.2d 569.
Plaintiffs have a cause of action under § 1983 for alleged noncompliance with the screening and treatment provisions of the Medicaid Act.
5

Id.

On remand, the district court granted in part and denied in part the defendants’ second motion to dismiss pursuant to Rule 12(b)(6). In light of the Supreme Court’s decision in

Gonzaga University v. Doe, 536 U.S. 273, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002), the district court reconsidered whether the specific provisions of the Medicaid Act that plaintiffs identified in their amended

complaint create enforceable rights under § 1983. The

district court concluded that 42 U.S.C. §§ 1396a(a)(8),

1396a(a)(10) create enforceable rights under § 1983, but that plaintiffs failed to state a claim that defendants had not discharged their obligations to provide

medical assistance under

§§ 1396a(a)(8),

1396a(a)(10). The district court further concluded that

§ 1396a(a)(43) creates enforceable rights under § 1983, that plaintiffs stated a cause of action for violations

of § 1396a(a)(43)(B) to the extent that they alleged that the state of Michigan has a policy or practice of not providing the EPSDT services to eligible children who have requested them, but that plaintiffs failed to state a

claim for violations of § 1396a(a)(43)(A). The district court also dismissed plaintiffs’ claim for violations of

§ 1396a(a)(30) for failure to state a claim, reasoning

that § 1396a(a)(30) “does not unambiguously confer

individual rights enforceable under § 1983.” (J.A. at 525.)

This appeal followed. For the reasons set forth below, we reverse in part and affirm in part but modify the district court’s order.

I. Standard of Review
[2] We review de novo a district court’s dismissal of claims pursuant to Federal Rule of Civil Procedure
12(b)(6). Marks v. Newcourt Credit Group, Inc., 342 F.3d 444, 451 (6th Cir.2003). In deciding whether to grant a Rule 12(b)(6) motion, we “must construe the complaint in the light most favorable to the plaintiff, accept all factual allegations [of the plaintiff] as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of his claims that would entitle him to
relief.” Id. at 451–52. Our function is not to weigh the

evidence or assess the credibility of witnesses, Weiner v. Klais & Co., 108 F.3d 86, 88 (6th Cir.1997), but rather to examine the complaint and determine whether the

plaintiff has pleaded a cognizable claim, Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir.1988). The motion should not be granted “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would *538 entitle him

to relief.”

Marks, 342 F.3d at 452 (quoting

Cameron v. Seitz, 38 F.3d 264, 270 (6th Cir.1994)).

II. Discussion
A.
[3] As a preliminary matter, we must consider whether our determination in Westside Mothers I that “[p]laintiffs have a cause of action under § 1983 for alleged noncompliance with the screening and treatment provisions of the Medicaid Act,” Westside Mothers I, 289 F.3d at 863, was binding on the district court under the law of the case doctrine. On appeal, plaintiffs argue that the district court’s reconsideration of whether the screening and treatment provisions of the Medicaid Act create enforceable rights under § 1983 was barred by the law of the case doctrine, and the district court therefore had “no power or authority to deviate” from our earlier decision in this case.
[4] [5] [6] [7] The law of the case doctrine provides that “when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” Scott v. Churchill, 377 F.3d 565, 569–70 (6th Cir.2004) (quoting Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983)). The doctrine precludes a court from reconsideration of issues “decided at an early stage of the litigation, either explicitly or by necessary inference from the disposition.” Hanover Ins. Co. v. Am. Eng’g Co., 105 F.3d 306, 312 (6th Cir.1997) (quoting Coal Res., Inc. v. Gulf & Western Indus., Inc., 865 F.2d 761, 766 (6th Cir.1989)). Pursuant to the law of the case doctrine, and the complementary “mandate rule,” upon remand the trial court is bound to “proceed in accordance with the
6

mandate and law of the case as established by the appellate court.” Id. (quoting Petition of U.S. Steel Corp., 479 F.2d 489, 493 (6th Cir.), cert. denied, 414 U.S. 859, 94 S.Ct. 71, 38 L.Ed.2d 110 (1973)). The trial court is required to “implement both the letter and the spirit” of the appellate court’s mandate, “taking into account the appellate court’s opinion and the circumstances it embraces.” Brunet v. City of Columbus, 58 F.3d 251, 254 (6th Cir.1995).

[8] The law of the case doctrine precludes reconsideration of a previously decided issue unless one of three “exceptional circumstances” exists: (1) where substantially different evidence is raised on subsequent trial; (2) where a subsequent contrary view of the law is decided by the controlling authority; or (3) where a decision is clearly erroneous and would work a manifest injustice. Hanover Ins. Co., 105 F.3d at 312. None of these “exceptional circumstances” are present which would permit the district court to reconsider whether the provisions in question create enforceable rights under
§ 1983.

[9] However, the district court reasoned that the law of the case doctrine did not preclude it from reconsidering whether specific provisions of the Medicaid Act create

enforceable rights under § 1983 because our earlier decision in Westside Mothers I did not decide this issue as to each specific statutory provision identified in the amended complaint. In support of the district court’s decision, defendants contend that our failure to explicitly

decide whether

42 U.S.C. §§ 1396a(a)(8),

1396a(a)(10),

1396a(a)(30),

1396a(a)(43)

confer enforceable rights left the matter open for review

by the district court. As the district court recognized, the

law of the case doctrine is limited to those issues decided

in the earlier appeal, and the district court may therefore

consider those issues not decided expressly or impliedly

by the appellate court. See Hanover Ins. *539 Co., 105

F.3d at 312. Thus, we must determine whether we

expressly or impliedly decided in plaintiffs’ first appeal

whether

§§ 1396a(a)(8),

1396a(a)(10),

1396a(a)(30),

1396a(a)(43) create rights

enforceable under § 1983.

In Westside Mothers I, we identified a specific issue, i.e.,
“whether there is a private right of action under §
1983.” 289 F.3d at 862. We held that the district court erred in failing to consider this issue within the framework established by the Supreme Court in
Blessing. Id. at 863. Applying the Blessing test, we then concluded that “[p]laintiffs have a cause of action

under § 1983 for alleged noncompliance with the screening and treatment provisions of the Medicaid Act.”
Id. In reaching this conclusion, we determined that the “provisions” were “clearly intended to benefit the putative plaintiffs,” impose “a binding obligation on Michigan,” and are “not so vague and amorphous as to defeat judicial
enforcement.” Id.

[10] Because the holding refers generally to the “screening and treatment provisions,” the opinion in Westside Mothers I creates considerable ambiguity as to whether the prior panel applied the Blessing test to each of the statutory provisions identified in the plaintiffs’ amended complaint. There is therefore no assurance that the panel considered whether the specified provisions of the

Medicaid Act confer enforceable rights under § 1983 before holding that the plaintiffs have a cause of action

under § 1983. Where there is substantial doubt as to whether a prior panel actually decided an issue, the district court should not be foreclosed from considering

the issue on remand. See United Artists Theatre Circuit, Inc. v. Township of Warrington, 316 F.3d 392, 398 (3d Cir.2003). Accordingly, we conclude that the law of the case doctrine does not apply and that our earlier decision in this case did not foreclose the district court’s consideration of whether plaintiffs have a right of action

under § 1983 to enforce violations of §§

1396a(a)(8),

1396a(a)(10),

1396(a)(30),

1396a(a)(43).

B.
[11] The district court ruled that plaintiffs failed to state a
claim for violations of 42 U.S.C. §§ 1396a(a)(8),
1396a(a)(10) “to the extent that they alleged failure by Defendants in their official capacity to ensure the actual provision of, or arrangement for, medical services.”1 (J.A. at 529.) In so ruling, the district court concluded that
§§ 1396a(a)(8), 1396a(a)(10) require the State to pay some or all of the costs of certain medical services available to eligible individuals, but do not require the State to provide the services directly. (J.A. at 509.) Before the district court and in their briefs before this court,
plaintiffs argued that §§ 1396a(a)(8), 1396a(a)(10) mandate the actual provision of, or arrangement for, certain medical services, including care, medicine, and equipment. Thus, the issue presented by this claim is
7

whether the individual rights to “medical *540 assistance” created by these provisions imposes an obligation on the State to provide services directly.

There appears to be some disagreement among the courts of appeals as to whether, pursuant to the Medicaid Act, a State must merely provide financial assistance to eligible individuals to enable them to obtain covered services, or

provide the services directly. See Sabree v. Richman,

367 F.3d 180, 181 n. 1 (3d Cir.2004); 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).”). However, the Medicaid Act explicitly

defines the term “medical assistance” as used in §§

1396a(a)(8),

1396a(a)(10). “Medical assistance”

means “payment of part or all of the cost of the

[enumerated] services” to eligible individuals “who are

under the age of 21.” 42 U.S.C. § 1396d(a); see

Schott v. Olszewski, 401 F.3d 682, 686 (6th Cir.2005) (“The Act defines ‘medical assistance’ as ‘payment of part or all of the cost of the [covered] care and services ... for individuals.’ ”).

Plaintiffs nevertheless contend that the language of §§
1396a(a)(8), 1396a(a)(10) expands the definition of “medical assistance” beyond simply payment for services to include actual provision of services. After examining the text and the structure of the statute, we do not believe
§§ 1396a(a)(8), 1396a(a)(10) require the State to provide medical services directly. The most reasonable
interpretation of § 1396a(a)(8) is that all eligible individuals should have the opportunity to apply for medical assistance, i.e., financial assistance, and that such medical assistance, i.e., financial assistance, shall be provided to the individual with reasonable promptness.
The most reasonable interpretation of § 1396a(a)(10) is that medical assistance, i.e., financial assistance, must be provided for at least the care and services listed in
paragraphs (1) through (5), (17) and (21) of
§ 1396d(a). See Clark v. Richman, 339 F.Supp.2d 631, 641 (M.D.Pa.2004). The regulations that implement these provisions also indicate that what is required is a prompt determination of eligibility and a prompt payment to eligible individuals to enable them to obtain the necessary medical services. See 42 C.F.R. §§ 435.911, 435.930.

At oral argument, plaintiffs asserted that the payments were insufficient to enlist an adequate number of

providers, which effectively frustrates §§ 1396a(a)(8),

1396a(a)(10) by foreclosing the opportunity for eligible individuals to receive the covered medical services. They now argue, for example, that they want to show that such payments are so inadequate in the Upper Peninsula of Michigan that there are no available

providers. See Health Care for All, Inc. v. Romney, 2005 WL 1660677, at *10–11 (D.Mass. July 14, 2005) (“Setting reimbursement levels so low that private dentists cannot afford to treat Medicaid enrollees

effectively frustrates [ § 1396a(a)(8) ] by foreclosing the opportunity for enrollees to receive medical assistance

at all, much less in a timely manner.”); Okla. Chapter of Am. Acad. of Pediatrics v. Fogarty, 366 F.Supp.2d

1050, 1109 (N.D.Okla.2005) (finding a violation of § 1396a(a)(8) and reasoning that “[w]ithout financial assistance (provider reimbursement) sufficient to attract an adequate number of providers, reasonably prompt

assistance is effectively denied”); Sobky v. Smoley, 855 F.Supp. 1123 (E.D.Cal.1994) (holding defendants

liable for failure to comply with § 1396a(a)(8) where “insufficient funding ... has caused providers of methadone maintenance to place eligible *541 individuals on waiting lists for treatment”). Plaintiffs did not raise this argument in the amended complaint, before the district court, or in their briefs before this court. Because this appeal is from a dismissal for failure to state a claim, we are concerned with the sufficiency of the complaint, which does not contain this allegation. We therefore affirm the district court’s dismissal of the claim for

violations of

§§ 1396a(a)(8),

1396a(a)(10).

However, because plaintiffs may be able to amend the

complaint to allege that inadequate payments effectively

deny the right to “medical assistance,” we modify the

district court’s order to reflect a dismissal without

prejudice to the filing of a motion to amend along with a

proposed amendment to the complaint.

C.
[12] Plaintiffs allege that defendants have developed a Medicaid program that does not provide access to eligible children to the care and services available under the plan, in violation of 42 U.S.C. § 1396a(a)(30). That provision requires a State plan for medical assistance to:
8

[P]rovide 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 safeguard against unnecessary utilization of such care and services and to assure that payments are consistent with efficiency, economy, and quality of care and 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....
42 U.S.C. § 1396a(a)(30)(A). The district court held
that § 1396a(a)(30) “does not unambiguously confer
individual rights enforceable under § 1983” and that plaintiffs therefore failed to state a claim for violations of
§ 1396a(a)(30). (J.A. at 525.)
[13] Section 1983 provides a cause of action against State officials for “the deprivation of any rights, privileges, or immunities secured by the Constitution and laws” but does not provide a mechanism through which
citizens can enforce federal law generally. 42 U.S.C. § 1983. Instead, it provides redress only for a plaintiff who asserts a “violation of a federal right, not merely a
violation of federal law.” Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997);
see also Wilder v. Va. Hosp. Ass’n, 496 U.S. 498, 508, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990).
[14] [15] In Blessing v. Freestone, the Supreme Court set forth three requirements for establishing that a federal
statute confers rights enforceable by § 1983:
First, Congress must have intended that the provision in question benefit the plaintiff. Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so “vague and amorphous” that its enforcement would strain judicial competence. Third, the statute must unambiguously impose a binding

obligation on the States. In other words, the provision giving rise to the asserted right must be couched in mandatory, rather than precatory, terms.

520 U.S. at 340–41, 117 S.Ct. 1353 (citations omitted). In Gonzaga University v. Doe, the Supreme Court acknowledged the continuing relevance of the Blessing test to “guide judicial inquiry into whether or not a statute
confers a right.” 536 U.S. 273, 282, 122 S.Ct. 2268,
153 L.Ed.2d 309 (2002); see ASW v. Oregon, 424 F.3d 970, 975 n. 6 (9th Cir.2005). The Court then clarified the first of Blessing’s three requirements, making clear that only unambiguously conferred rights, as distinguished *542 from mere benefits or interests, are
enforceable under § 1983. Gonzaga, 536 U.S. at 282–83, 122 S.Ct. 2268. The appropriate inquiry, therefore, is “whether or not Congress intended to confer
individual rights upon a class of beneficiaries.” Id. at 285, 122 S.Ct. 2268. Critical to this inquiry is whether the pertinent statute contains “rights-creating” language that reveals congressional intent to create an individually
enforceable right. Id. at 287, 122 S.Ct. 2268.

Prior to Gonzaga, the circuits were split on the question

of whether

§ 1396a(a)(30) provides Medicaid

recipients or providers with a right enforceable under

§ 1983. The Fifth and Eighth Circuits each held that Medicaid recipients have a private right of action under

§ 1396a(a)(30). See

Evergreen Presbyterian

Ministries Inc. v. Hood, 235 F.3d 908, 927–28 (5th

Cir.2000); Ark. Med. Soc’y, Inc. v. Reynolds, 6 F.3d 519, 528 (8th Cir.1993); cf. Pa. Pharmacists Ass’n v. Houstoun, 283 F.3d 531, 543–44 (3d Cir.2002) (en banc) (positing, in dicta, a right for recipients while rejecting

such a right for providers); Visiting Nurse Ass’n v. Bullen, 93 F.3d 997, 1004 n. 7 (1st Cir.1996) (positing, in dicta, a right for recipients while holding that such a right existed for providers). The First, Seventh, and Eighth Circuits held that a private right of action existed for

Medicaid providers. See Bullen, 93 F.3d at 1005;

Methodist Hosps., Inc. v. Sullivan, 91 F.3d 1026, 1029

(7th Cir.1996); Ark. Med. Soc’y, 6 F.3d at 528. By contrast, the Third and Fifth Circuits explicitly held that

§ 1396a(a)(30) did not create a right enforceable by Medicaid providers. See Pa. Pharmacists Ass’n, 283 F.3d at 543; Walgreen Co. v. Hood, 275 F.3d 475, 478 (5th

Cir.2001); Evergreen Presbyterian Ministries, 235

9

F.3d at 929. Since Gonzaga, the federal courts of appeals

considering whether

§ 1396a(a)(30) provides

Medicaid recipients or providers with a right enforceable

under

§ 1983 have also come to conflicting

conclusions. Compare Long Term Pharmacy Alliance v. Ferguson, 362 F.3d 50, 59 (1st Cir.2004) (holding that Medicaid providers do not have a private right of action

under § 1396a(a)(30)), and Sanchez v. Johnson,

416 F.3d 1051, 1062 (9th Cir.2005) (concluding that § 1396a(a)(30) does not unambiguously manifest congressional intent to create individual rights), with

Pediatric Specialty Care, Inc. v. Ark. Dep’t of Human Servs., 443 F.3d 1005, 1015–16 (8th Cir.2006) (holding

that § 1396a(a)(30) is enforceable by Medicaid

recipients and providers through a cause of action).

§ 1983 private

After examining the text and structure of

§

1396a(a)(30), we agree with the First and Ninth Circuits

that § 1396a(a)(30) fails the first prong of the Blessing test and does not therefore provide Medicaid recipients or

providers with a right enforceable under § 1983. First,

§ 1396a(a)(30) has an aggregate focus rather than an individual focus that would evince congressional intent to

confer an individually enforceable right. See Gonzaga, 536 U.S. at 282, 122 S.Ct. 2268 (When a “provision focuse[s] on ‘the aggregate services provided by the State,’ rather than ‘the needs of any particular person,’ it confer[s] no individual rights and thus [cannot] be

enforced by § 1983.”); Sanchez, 416 F.3d at 1059. The provision speaks, not of individual benefits, but rather of the State’s obligation to develop “methods and

procedures.” See § 1396a(a)(30)(A); Long Term Care Pharmacy Alliance, 362 F.3d at 57 (noting that “[t]he provision focuses instead upon the state as ‘the person regulated rather than individuals protected’ ”). The

only reference in § 1396a(a)(30) to recipients of Medicaid is in the aggregate, as members of “the general

population in the geographic area.” See

§

1396a(a)(30)(A). The only reference to Medicaid

providers is as indirect *543 beneficiaries “enlisted” as

subordinate partners in the administration of Medicaid

services. See § 1396a(a)(30)(A). Far from focusing on

a specific class of beneficiaries, § 1396a(a)(30) “is simply a yardstick for the Secretary to measure the systemwide performance of a State’s [Medicaid]

program.” Blessing, 520 U.S. at 343, 117 S.Ct. 1353.

Second, the “broad and nonspecific,” Gonzaga, 536

U.S. at 292, 122 S.Ct. 2268 (Breyer, J., concurring in the judgment), language of § 1396a(a)(30) is ill-suited to judicial remedy, see Sanchez, 416 F.3d at 1060. The provision sets forth general objectives, including “efficiency, economy, and quality of care,” but does not identify what standards are required by such terms. See
§ 1396a(a)(30)(A); Long Term Care Pharmacy Alliance, 362 F.3d at 58 (noting that “the criteria (avoiding overuse, efficiency, quality of care, geographic equality) are highly general”). The interpretation and balancing of these general objectives “would involve making policy decisions for which this court has little expertise and even less authority.” Sanchez, 416 F.3d at 1060; see also Long Term Care Pharmacy Alliance, 362 F.3d at 58 (noting that the generality of the goals “suggests that plan review by the Secretary is the central means of enforcement intended by Congress”). Furthermore, § 1396a(a)(30) is not confined to particular services; rather, it speaks generally of “methods and procedures.” See § 1396a(a)(30)(A). Such broad language suggests that § 1396a(a)(30) is “concerned with overall methodology rather than conferring individually enforceable rights on individual Medicaid recipients.” Sanchez, 416 F.3d at 1059–60.
Because the text of § 1396a(a)(30) does not focus on individual entitlements, nor is the “broad and nonspecific” language of this provision amendable to judicial remedy, we are not persuaded that Congress has, with a clear voice, intended to create an individual right that either Medicaid recipients or providers would be able to enforce under
§ 1983. Without such unambiguous intent, plaintiffs cannot satisfy the first requirement of the Blessing test. We therefore hold that § 1396a(a)(30) does not confer enforceable rights and affirm the district court’s dismissal of plaintiffs’ § 1396a(a)(30) claim.
D.
[16] The district court held that plaintiffs failed to state a claim for violations of 42 U.S.C. § 1396a(a)(43)(A) because § 1396a(a)(43)(A) does not require “a participating State to ‘effectively’ inform all potentially eligible children of the EPSDT services.” (J.A. at 527.)
Section 1396a(a)(43)(A) requires a State plan for medical assistance to provide for:
10

[I]nforming all persons in the State who are under the age of 21 and who have been determined to be eligible for medical assistance including services described in

section 1396d(a)(4)(B) of this title, of the availability of early and periodic screening, diagnostic, and treatment services as described in

section 1396d(r) of this title and

the need for age-appropriate

immunizations

against

vaccine-preventable diseases....

healthcare services, and related assistance.” (J.A. at 205.) (Emphasis added.) In concluding that plaintiffs’ allegation that defendants failed to “effectively inform” them of the

EPSDT services does not state a viable § 1983 claim, the district court ignored the Medicaid Act’s implementing regulations, which obligate participating States to “effectively” inform all eligible individuals. See 42 C.F.R. § 441.56(a). Plaintiffs have stated a cognizable

claim under

§ 1983 for violations of

§

1396a(a)(43)(A) and should proceed to discovery for

further development of the facts.

42 U.S.C. § 1396a(a)(43)(A). Implementing regulations obligate States to provide for written and oral methods designed to “effectively” inform all eligible individuals about the EPSDT program. 42 C.F.R. § 441.56(a).
[17] The complaint, read in the light most favorable to the
plaintiffs, supports a § 1983 claim for violations of
§ 1396a(a)(43)(A). In order to establish a § 1983 claim, plaintiff’s complaint must allege that (1) the conduct in controversy was committed by a person acting under *544 color of law, and (2) the conduct deprived the plaintiff of a federal right, either constitutional or
statutory. Lugar v. Edmondson Oil Co., 457 U.S. 922, 930, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). The amended complaint alleges that defendants “refused or failed to effectively inform Plaintiffs and their caretakers of the existence of the Medical Assistance children’s healthcare program, the availability of specific child

III. Conclusion
For the foregoing reasons, we affirm the district court’s judgment of dismissal of the claim for violations of §§ 1396a(a)(8), 1396a(a)(10), but we modify the district court’s order to reflect a dismissal without prejudice; affirm the dismissal of the § 1396a(a)(30) claim; reverse the dismissal of the § 1396a(a)(43) claim; and remand for further proceedings consistent with this opinion.
All Citations
454 F.3d 532, Med & Med GD (CCH) P 301,861, 2006 Fed.App. 0247P

Footnotes

1

Section 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).

Section 1396a(a)(10) states in relevant part: A State plan for medical assistance must ... provide for making medical assistance available, including at least the

care and services listed in paragraphs (1) through (5), (17) and (21) of section 1396d(a) of this title to all [eligible] individuals....

42 U.S.C. § 1396a(a)(10)(A) (emphasis added).

11

 
 SETTLEMENT AGREEMENT This Settlement Agreement (“Agreement”), dated August 7, 2007, is entered into by and between Plaintiffs WESTSIDE MOTHERS; FAMILIES ON THE MOVE, INC.; MICHIGAN CHAPTER, AMERICAN ACADEMY OF PEDIATRICS; MICHIGAN CHAPTER, AMERICAN ASSOCIATION OF PEDIATRIC DENTISTS; KY. L., by his next friend PATRICIA L.; KA. L., by her next friend PATRICIA L.; K. C., by her next friend ZINA C.; S. J., by her next friend NICOLE J.; M. J., by her next friend NICOLE J.; DH. W., by her next friend DAWN W.; EL. W., by her next friend DAWN W.; EM. W., by her next friend DAWN W.; DL. W., by his next friend DAWN W.; JA. E., by her next friend DEANA H.; JE. E., by her next friend DEANA H.; M. L., by her next friend DEANA H.; AND J.C., by his next friend MONICA C. (collectively, “Plaintiffs”); and Defendants JANET OLSZEWSKI, in her official capacity as Director of the State of Michigan Department of Community Health; and PAUL REINHART, in his official capacity as Deputy Director of the State of Michigan Medical Services Administration (collectively, “Defendants” or the “State”). Plaintiffs and Defendants are collectively referred to as the “Parties.”
RECITALS WHEREAS, Plaintiffs filed an action currently pending in the United States District Court for the Eastern District of Michigan (the “Court”), entitled Westside Mothers v. Olszewski, Case No. 99-73442 (E.D. Mich.) (the “Litigation”). WHEREAS, Plaintiffs’ Second Amended Complaint asserts claims for violations of the Medicaid Act under 42 U.S.C. § 1396a(a)(8), (a)(10), and (a)(43)(A), (B), and (C), which Plaintiffs allege are enforceable under 42 U.S.C. § 1983, seeking declaratory and injunctive relief on Plaintiffs’ own behalf and on behalf of a class of persons similarly situated. WHEREAS, the Second Amended Complaint was filed after the Litigation was remanded from the United States Court of Appeals for the Sixth Circuit, which had affirmed in part
DC: 2585252-4

and reversed in part the Court’s partial grant of Defendants’ motion to dismiss Plaintiffs’ First Amended Complaint.
WHEREAS, the Parties have not begun formal discovery proceedings, have not exchanged formal document requests or interrogatories, and have not conducted depositions. There has been no answer or other responsive pleading to the Second Amended Complaint, no class action discovery, and no motion for certification of the class alleged in the Second Amended Complaint has been filed. There has been no trial in the case, nor any finding of liability on the part of the State.
WHEREAS, Plaintiffs’ counsel and Defendants’ counsel have exchanged informal discovery and have engaged in extensive arm’s length negotiations concerning the settlement of the claims asserted in the Litigation.
WHEREAS, the Plaintiffs believe that each of their claims is meritorious. The Plaintiffs nevertheless wish to secure the benefits of this settlement promptly without the further delay inherent in continuing litigation.
WHEREAS, the State denies each of the claims asserted against it in the Litigation and denies any and all liability. The State nevertheless desires to settle the Litigation and the claims asserted in the Litigation, on the terms and conditions set forth herein, for the purpose of avoiding the burden, expense, and uncertainty of continuing litigation.
NOW THEREFORE, intending to be legally bound and acknowledging the sufficiency of the consideration and undertakings set forth below, the Parties agree to settle the Litigation under the following provisions.
- 2 -

PROVISIONS Section 1. Dismissal of Complaint Without Prejudice Promptly upon execution of this settlement agreement, Plaintiffs shall dismiss without prejudice their Second Amended Complaint. Plaintiffs agree not to bring an identical or similar suit against Defendants, the Michigan Department of Community Health, and/or their successors for two years from the date of this Settlement Agreement. The parties explicitly recognize that Plaintiffs’ voluntary dismissal of this action pursuant to this Settlement Agreement does not in any way affect their ability to bring a similar or an identical action against Defendants at any place and time after two years. If, after two years, any Plaintiff brings or is a named plaintiff in an action alleging claims against Defendants, the Michigan Department of Community Health, and/or their successors, that are similar or identical to those in the Second Amended Complaint, this Agreement shall be null and void. Section 2. Denial of Liability; No Admissions The Parties enter into this Agreement to resolve the dispute that has arisen among them and to avoid the burden, expense, and risk of litigation. In entering into this Agreement, Defendants do not admit, and specifically deny, that they have violated or breached any duty, or violated any federal, state, or local law, any regulations or guidelines promulgated pursuant to those laws, or any other applicable laws, regulations, guidelines, or any other legal requirements; and Plaintiffs continue to contend that Defendants have violated Title XIX of the Social Security Act as alleged in the Second Amended Complaint. Neither this Agreement, nor any of its terms or provisions, nor any of the negotiations connected therewith or relating thereto, shall be construed as an admission or concession by the Defendants of any such violations or failures to comply with any applicable law, regulation, guideline or any other legal requirements; or as an admission or
- 3 -

concession by the Plaintiffs that Defendants have not violated federal law in the manner alleged in the Second Amended Complaint. Except as necessary in a proceeding to enforce the terms of this Agreement, this Agreement and its terms and provisions shall not be offered or received as evidence in any action or proceeding to establish any liability or admission on the part of Defendants or to establish the existence of any condition constituting a violation of or non-compliance with any applicable law, regulation, guideline or any other legal requirements; nor shall it be offered or received as evidence in any action or proceeding as a defense to liability on the part of Defendants or as a defense to the existence of any condition constituting a violation of or non-compliance with any applicable law, regulation, guideline or any other legal requirement.
Section 3. Definitions For the purposes of the Agreement, the terms set forth below shall have the following meanings. 3.1 “EPSDT” means Early and Periodic Screening, Diagnosis, and Treatment. 3.2 “HEDIS” means the Health Plan Employer Data and Information Set. 3.3 “Legal Designee” means the person or law firm designated by a Party under Section 7.2 of the Agreement. 3.4 “MCIR” means the Michigan Care Improvement Registry, formerly known as the Michigan Child Immunization Registry. 3.5 “MCO” means “Managed Care Organization,” and refers to those organizations that have contracted with the State to provide Medicaid services. 3.6 “MCO Outreach Report” means the report described in Section 8.2(f) of the Agreement.
- 4 -

3.7 “MCO Provider Report” means the report described in Section 8.5 of the Agreement.
3.8 “Party Designee” means the person or institutional position or role designated by a Party under Section 7.1 of the Agreement.
3.9 “Physician Incentive Plan Report” means a report from the MCOs to the State that describes any compensation arrangement between the MCO and a physician or physician group that may reduce or limit services to enrollees and that must be disclosed to enrollees pursuant to Section 8.1.
3.10 “Specialty Provider Report” means a report from the MCOs to the State pursuant to Sections 6.1(p) and 8.2(e).
Section 4. Reimbursement for Medical Care for Children 4.1 Effective October 1, 2006, the State increased the published Medicaid reimbursement rates for preventive medicine visits and specific newborn care codes related to EPSDT by 47%. In connection with its increase in published Medicaid reimbursement rates, the State increased the capitated rate at which it compensates MCOs to account for the increase in published rates. In consideration of the Parties’ shared interest in improving the delivery of EPSDT services to children eligible for Medicaid, the State agrees not to reduce the 2006 published rates for a period of three years from the execution date of this Agreement, and for a period of three years not to reduce the increase in such capitated rates paid to MCOs. 4.2 For the term of the commitment stated in Section 4.1, the State shall require in its contracts with MCOs that the Chief Executive Officer or other executive of the MCO certify annually: (a) that all information provided in MCO reports to the State is truthful; and (b) that the MCO has increased its payments to Medicaid providers to account for the October 1, 2006 increase
- 5 -

in published Medicaid reimbursement rates either (i) by increasing capitated rates at which it compensates Medicaid providers proportionately to the State’s increase in capitated rates pursuant to the October 1, 2006 increase in published Medicaid reimbursement rates, or (ii) by paying its providers for services provided based on the State’s published Medicaid reimbursement rates.
4.3 Defendants will work collaboratively over the next three years with Plaintiffs to seek additional funds for children’s Medicaid, but do not hereby commit to going to the legislature to seek such funds.
Section 5. Reimbursement for Dental Care for Children 5.1 The State and Plaintiffs agree that the Healthy Kids Dental Program is a successful venture, and share the aspiration of expanding it to cover all counties in Michigan. The program currently covers dental care for Medicaid eligible children in 59 counties in Michigan. The State shall continue to fund the Healthy Kids Dental Program in those 59 counties, and shall not reduce the rates at which it reimburses claims for dental services in the remaining counties, for a period of three years from the execution date of this Agreement. 5.2 The State shall expand the Healthy Kids Dental Program to the remaining 24 counties, or otherwise increase access to dental services for children, when funding becomes available and will work over the next three years with Plaintiffs to obtain the funding necessary to expand the Healthy Kids Dental Program to the remaining 24 counties, but do not hereby commit to going to the legislature to seek such funds. Section 6. Information and Reporting 6.1 Reports. The State shall make available to Plaintiffs certain reports, including reports that the MCOs are or will be required to provide to the State (“MCO Reports”). The State shall make each MCO Report received from an MCO available within 30 days after the
- 6 -

latter of (1) the date such report is due from the MCO; or (2) the date upon which such report is received from the MCO. In addition, for those MCO Reports that the State consolidates on a statewide basis (“Consolidated Report”), the State shall also make such Consolidated Report available to Plaintiffs within 30 days after the Consolidated Report is finalized by the State.
The reports subject to this Section 6.1: a. Annual HEDIS reports (including the data submission transmission
(“DST”) regarding HEDIS for each MCO); b. MCO Annual Performance Improvement Plans (which are not
subject to consolidation on a statewide basis); c. Quarterly MCO Grievance/Appeal Summary Report; d. Monthly blood lead testing report; e. MDCH MCO performance monitor report; f. MCIR immunization report; g. Annual MCO Provider Reports (which are not subject to
consolidation on a statewide basis), as provided in Sections 3.7 and 8.5 of this Agreement; h. Physician Incentive Plan Reports (which are not subject to
consolidation on a statewide basis), as provided in Sections 3.9 and 8.1 of this Agreement; i. Annual MCO Outreach Reports (which are not subject to
consolidation on a statewide basis), as provided in Sections 3.6 and 8.2(f) of this Agreement;
j. The names and locations of participating providers by specialty for each MCO, and by January 1, 2009, where and how many Medicaid children each such
- 7 -

provider saw in the previous year, as provided pursuant to Section 8.2(b) and (h) of this Agreement;
k. The names and locations of participating providers by specialty for each provider paid directly by the State on a fee-for-service basis (including dentists), and where and how many Medicaid children each such provider saw in the previous year;
l. The names and county of locations of dentists in each of the 24 counties in which the Healthy Kids Dental Program has not been instituted who provided services to Medicaid-enrolled children, the number of children each dentist saw in each year, and whether the service provided was preventative or treatment;
m. Completed Form 416s (within 30 days of submission to CMS); n. All submissions including any non-beneficiary-specific data, including such data submitted using the MSIS protocol, to CMS for the Form 416; o. External Quality Review Reports; and, p. Specialty Provider Reports, as provided pursuant to Section 8.2(e) of this Agreement. 6.2 Annual Report. The State shall provide to Plaintiffs an Annual Report, due each July 1 beginning with July 1, 2008, that shall cover the following topics to the extent that they are not included in the reports provided under Section 6.1 above: a. A list of the actions (if any) that the State has taken in the prior year to enforce or otherwise relating to provisions in MCO contracts concerning reporting and outreach; b. Participation and Screening Progress Report. The Annual Report shall include a calculation of the Participation Ratio and Screening Ratio reported by each MCO and by
- 8 -

the State, including each age group reported on Form CMS-416. Each Annual Report subsequent to the first Annual Report shall include this information from prior Annual Reports in order to show the progress on these measures. Neither the State nor the MCOs will count a screen as having occurred unless all 5 elements of the mandatory EPSDT comprehensive unclothed examination are provided.
c. Plaintiffs’ Recommendations. For each topic that Parties have discussed at a Consultation Meeting under Section 7.4, the State shall include in the Annual Report:
i. The topic discussed between the State and Plaintiffs; ii. Specific recommendations made by Plaintiffs with regard to each topic discussed; iii. The actions (if any) that the State has taken with regard to each topic discussed; and iv. The reason(s) why any recommendation made by Plaintiffs was not implemented. d. A description of the methods used by the State and/or by MCOs in the prior year for outreach to Medicaid-eligible persons, including methods to disseminate information about transportation and scheduling assistance. e. Attachments. The State shall include as attachments to its Annual Report documents used by the State and/or by MCOs during the prior year to inform children and their guardians of the availability of EPSDT services, age-appropriate immunizations, and assistance from the State. Such documents shall include: “Michigan Free Health Check-ups,” “Fee-ForService Handbook,” “EPSDT Letter,” “Are You 11-19 Years Old?”, “Protect Babies and Toddlers from Serious Diseases,” “Michigan Vaccines for Children,” and “Medicaid Health Plan (MHP)
- 9 -

Information.” If any document used in the year prior to the Annual Report was used in a prior year and was attached to a prior Annual Report, the State need not attach such document and may instead list the document in the Annual Report with a statement that it has not changed since the prior year.
6.3 Scope of Reporting Obligation. The reporting obligations herein shall continue for a period of five years from the execution date of the Agreement, or until otherwise agreed by the Parties in writing.
6.4 Plaintiff Access to Information. In addition to the information and reports to which Plaintiffs are entitled pursuant to this Settlement Agreement, the State shall produce to Plaintiffs’ counsel upon 30 days notice additional public documents otherwise available pursuant to the Michigan or federal Freedom of Information Act.
Section 7. Consultation with Plaintiffs 7.1 Party Designees. Plaintiffs and the State shall each designate a point of contact (“Party Designee”) for communications and consultations contemplated by this Agreement. Either Party may change its Party Designee at any time and in its own discretion by sending written notice to the other Party’s Party Designee. The State may designate its Party Designee by position or role within a State agency, but shall keep Plaintiffs reasonably apprised of the individual serving that role or position and any changes in personnel with regard to that role or position. The State’s initial Party Designee shall be Neil Oppenheimer, the Assistant to the Director of the Medical Services Administration of the Michigan Department of Community Health (telephone 517-2418704). Plaintiffs’ initial Party Designee shall be Dr. Charles Barone, Chair, Department of Pediatrics – Henry Ford Health System, 4B 1 Ford Place, Detroit, MI 48202 (telephone 313-8749591).
- 10 -

7.2 Legal Designees. Plaintiffs and the State shall each designate outside counsel as a point of contact (“Legal Designee”) for communications related to the Parties’ obligations under this Agreement or the interpretation of this Agreement. The State’s initial Legal Designee shall be Covington & Burling LLP, Charles A. Miller or Edward H. Rippey (telephone 202-662-6000). Plaintiffs’ initial Legal Designee shall be Dechert LLP, Richard L. Berkman (telephone 215-994-4000). Neither Party shall be required to pay, in whole or in part, for the services of the Legal Designee of the other Party.
7.3 No Other Contacts. All notices and reports required or allowed to be made by one Party to the other Party under this Agreement shall be made by and to the Parties’ respective Party Designees. In addition, the Parties agree that to avoid misunderstanding or miscommunication, each Party shall ensure that all communications between the Parties related to the Litigation, this Agreement, and the obligations, communications, and contacts contained herein are initiated only by a Party Designee or a Legal Designee, and that such communications are made only to the other Party Designee or Legal Designee.
7.4 Consultation Meeting. The State shall, at the request of Plaintiffs’ Party Designee and with appropriate advance notice, meet and confer with Plaintiffs and Plaintiffs’ appropriate consultants at a mutually convenient time at a Consultation Meeting of sufficient duration to discuss any or all of the following topics as requested by Plaintiffs, such request not to be made more than two times per calendar year, and such Consultation Meeting not to exceed eight hours unless mutually agreed to by the Party Designees:
a. MCO Reports. The Parties may discuss improvements that could be made to the accuracy and usefulness of the reports listed in Section 6.1, including suggestions for new reports.
- 11 -

b. Outreach. The Parties may discuss ways that the State, working in conjunction with Plaintiffs and the MCOs, could make improvements to outreach efforts by the State and MCOs.
c. Training. The Parties may discuss how training could be made available in the requirements of EPSDT and the benefits and goals of a true medical home to primary care physicians that provide EPSDT services to children enrolled in Medicaid. The training to be considered could include, e.g., information about the content of required EPSDT screenings, techniques for assisting families with scheduling and obtaining transportation benefits, and information about other EPSDT benefits. In addition, such training to be considered could contain a more detailed session to be given to physicians who are not pediatricians but nonetheless are primary care physicians for children. The parties may discuss developing a training program in conjunction with the Michigan Chapter of the AAP, coordinating training with the Michigan Chapter of the American Academy of Family Medicine, the Michigan State Medical Society, and any other significant physician organizations in Michigan.
d. Strategies and Benchmarks for Achieving EPSDT Participation and Screening Goals. The Parties may discuss plans for and progress toward meeting specified goals for EPSDT screening and participation.
e. Extended Provider Hours. The Parties may discuss strategies by which providers, and particularly primary care physicians, may be induced to provide more weekend and extended hours in order better serve the needs of Medicaid enrollees.
f. Scheduling Facilitators. The Parties may discuss strategies by which providers may be induced to employ individuals to help beneficiaries schedule appointments and to
- 12 -

remind beneficiaries when appointments are needed according to the State’s periodicity schedule, and reminder calls when appointments are actually scheduled.
g. Standardized Medical Reporting Forms. The Parties may discuss the State and MCOs requiring (through a phase-in process) that providers use standardized medical reporting forms that document each element of the EPSDT screen and include information about referrals for dental care and referral and receipt of corrective treatment.
h. Increases to Medicaid Funding. The Parties may discuss strategies for increasing Medicaid funding for children and funding for the Healthy Kids Dental Program.
i. Standards for reporting the number, distribution, and availability of specialty care providers, as specified in Section 8.2(e) of this Agreement.
j. Other topics raised by either Party. During such Consultation Meeting the State shall receive Plaintiffs’ recommendations on the topics discussed, and include the information specified in Section 6.2(c) regarding the topics discussed in its next Annual Report. 7.5 Payment for Plaintiffs and their Designee and/or Consultants to Implement the Settlement. The State shall pay Plaintiff Michigan Chapter, American Academy of Pediatrics $25,000 per year for 3 years to fund Plaintiffs, their Designees and/or consultants to participate in the implementation of this Settlement Agreement. The payments due under this Section 7.5 shall be made in accordance with Section 11.3 of this Settlement Agreement. 7.6 Changes to MCO Reports and Consolidated Reports. In the event that the State eliminates, replaces, or otherwise substantially modifies any MCO Report or Consolidated Report in Section 6.l, except the reports provided pursuant to Sections 6.1(g) through 6.1(l) and 6.1(p) which may not be eliminated, replaced or otherwise substantially modified except
- 13 -

by agreement of the Parties, the State shall provide notice to Plaintiffs of such change no later than the time at which the State notifies the MCOs of the change. Plaintiffs may submit written comments and recommendations on the revised Report within 30 days of receiving the State’s notification under this Section. If Plaintiffs submit comments and recommendations, the State shall consider those comments and respond to Plaintiffs in writing within 60 days. The response shall include: (a) a list of any recommendations made by Plaintiffs; (b) a statement of whether Plaintiffs’ recommendations will be implemented; and (c) if any recommendation is not implemented, the reason(s) why it was not implemented.
Section 8. MCO Relationship 8.1 Physician Incentive Plans. The State shall require in its contract with each MCO that the MCO disclose upon request from an enrollee any compensation arrangement between an MCO and a physician or physician group that may reduce or limit services to enrollees, by requiring that each MCO include the following language in the MCO’s Member Handbook: “You are entitled to ask if the plan has special financial arrangements with our physicians that can affect the use of referrals and other services that you might need. To get this information, call our Member Services department at (telephone number) and request information about our physician payment arrangements.” The State shall require that each MCO annually attest that this language is included in its Member Handbook, and that it provides the requested information in response to enrollee requests. 8.2 Outreach. The State shall require in its contract with each MCO that the MCO:
a. Document that it has offered information to enrollees about EPSDT appointment scheduling and transportation assistance;
- 14 -

b. Document how many children were seen by each participating provider in the previous year with the data to be provided pursuant to Section 8.2(h) (and the State shall provide this information annually as specified in Sections 6.1 and 8.5 of this Agreement);
c. Provide the State with the waiting times to get appointments with primary care providers, the length of time actually spent waiting to see the provider, and the MCO’s established criteria for monitoring appointment scheduling for routine and urgent care and for monitoring waiting times in provider offices, as described in Section II-L.7(i) of the current form contract with the MCOs (and the State shall provide this information annually as specified in Sections 6.1(g) and 8.5 of this Agreement);
d. Make available to enrollees and potential enrollees the names and location of participating primary care providers who are available to accept appointments with enrollees with reasonable promptness (and the State shall provide this information annually);
e. Report annually regarding the availability and accessibility of specialty care providers (“Specialty Provider Report”). The State shall define a set of highincidence medical specialties that shall be the subject of such report, which set shall include, unless good cause is shown by the State not to include: allergy/immunology, cardiology, dermatology, nephrology, neurology, orthopedics, otolaryngology, psychiatry/psychology, pulmonology, urology, and surgery. The Specialty Provider Report shall include the number, distribution, and availability to Medicaid enrollees within the geographic region served by the MCO of providers within such set of specialties. The Specialty Provider Report also shall include, by specialty care provider, the waiting times to get appointments, and the length of time actually spent waiting to see the provider. The State shall define measurable standards by which the number, distribution, and availability to Medicaid enrollees of such specialty care providers shall be reported, and shall
- 15 -

consult with Plaintiffs regarding such standards. Such standards shall include the means to determine wait times. The State shall provide such reports to Plaintiffs under Section 6.1(p) of this Agreement. The State shall require that the initial reports pursuant to this section shall be due no later than one year from the date of this Agreement.
f. Issue annually a report listing the methods used in the prior year for outreach and indicating whether scheduling nurses or similar persons were used (and the State shall provide this information annually as specified in Section 6.1(i) of this Agreement).
g. Include in its Annual Performance Improvement Plan a description of any beneficiary incentive or other incentive plans designed to improve the quality of care and the provision of EPSDT screens. In addition to this requirement, the State shall use incentives with MCOs to encourage MCOs to provide incentives to beneficiaries and their parents to meet all EPSDT guidelines.
h. By January 1, 2008, require on each claim and encounter data submitted the submission of (i) a unique individual identifier for each individual providing the service, such as the provider’s Michigan license number or National Provider Identifier (NPI), and (ii) where the service is provided (e.g., hospital, office, emergency room), to allow the State and MCOs to track where and how many Medicaid children each individual provider sees annually.
i. Make the certifications required by Section 4.2 above. 8.3 Training for EPSDT Providers. The State shall disseminate to the MCOs, and shall require that the MCOs disseminate to each participating provider, an annual bulletin that describes the EPSDT “correct or ameliorate” standard and that lists the Medicaid-coverable services found in 12 U.S.C. § 1396d(a). The bulletin also shall inform participating providers of opportunities for training in the requirements of EPSDT and the benefits and goals of a true
- 16 -

medical home. The State need not send a separate communication to the MCOs, but may fulfill its obligation under this section by including the bulletin in another scheduled communication. The obligation to disseminate the bulletin to participating providers may be fulfilled if the MCOs include the bulletin in their newsletter or other similar communication with participating providers.
8.4 Assignment to Providers. The State shall continue requirements of contracted MCOs to assign eligible children to a primary care provider with whom the child has an established medical relationship.
8.5 Treatment. The State shall enforce the provisions in its contracts which require MCOs to ensure that there are a sufficient number and types of providers to accommodate the needs of enrollees within each enrollment area, subject to the current exceptions specified in the State’s contracts with MCOs for rural enrollment areas; and that such providers accommodate the needs of enrollees within each enrollment area with reasonable promptness. The State shall provide a report to Plaintiffs on an annual basis which shows, by MCO, the number and types of providers available to serve Medicaid enrollees in each enrollment area (“MCO Provider Report”). The MCO Provider Report also shall include the information to be provided by each MCO to the State pursuant to Section 8.2(b) and (c) of this Settlement Agreement.
8.6 Third Party Beneficiary Rights. The State will not insert a provision in its contracts with MCOs that Plaintiffs, including patients, are not third party beneficiaries of the contracts. While complying with the preceding sentence, the State reserves its right to take a position in the future regarding whether its contracts with MCOs provide third party beneficiary rights.
- 17 -

Section 9. Information System 9.1 MCIR. The State’s experience with the MCIR has demonstrated that the availability of patient-specific information to healthcare providers can dramatically increase the number of children who receive needed medical services. To be most effective, the MCIR is not limited to Medicaid-eligible children, but instead covers all children in the State. To build upon the MCIR’s successful improvement of Michigan’s immunization rates, the State is currently in the process of expanding the system to cover blood screening for lead exposure. Once this expansion is complete, the State shall implement a project to expand further the system to include EPSDT information and shall use best efforts to implement this expansion by the end of 2010. Section 10. Class Action Allegations 10.1 In light of the posture of the Litigation, the lack of class action discovery, and the absence of class certification, Plaintiffs dismiss their class action allegations. 10.2 The Class Action Fairness Act, 28 U.S.C. § 1715, does not apply to this Agreement. Section 11. Monetary Obligations 11.1 In consideration of the obligations of this Settlement Agreement, the State shall pay to Plaintiffs a total of $250,000, to be paid as specified in Section 11 of this Settlement Agreement. 11.2 Attorneys’ Fees and Costs. The State will pay $175,000 to Plaintiffs to compromise Plaintiffs’ claim for costs advanced and attorneys’ fees to date. Otherwise, each side shall bear its own costs and attorneys’ fees. This amount shall be due as follows: (a) $100,000 upon the signing of this Settlement Agreement; (b) $50,000 on October 1, 2007; and (c) $25,000 on October 1, 2008. The first $100,000 will be paid to Dechert LLP for reimbursement of costs to
- 18 -

be distributed among Plaintiffs’ counsel as agreed among themselves. The remaining payments will be made to the Public Interest Law Center of Philadelphia for reimbursement of the remaining costs and for attorneys’ fees to be distributed among Plaintiffs’ counsel as agreed among themselves.
11.3 Payment for Party Designee. The State’s obligation under Section 7.5 to pay $25,000 per year (a total of $75,000) to fund participation in the implementation of this Settlement Agreement shall be due as follows: (a) $25,000 on October 1, 2007; (b) $25,000 on October 1, 2008; and (c) $25,000 on October 1, 2009.
Section 12. General Provisions a. Entire Agreement. This Agreement constitutes the full, complete and entire understanding, agreement and arrangement of and between the Parties with respect to the settlement of the Litigation. This Agreement supersedes any and all prior oral or written understandings, agreements, and arrangements between the Parties with respect to the settlement of the Litigation. Except those set forth expressly in this Agreement, there are no other agreements, covenants, promises, representations or arrangements between the Parties with respect to the settlement of the Litigation. b. Modification in Writing. This Agreement may be altered, amended, modified or waived, in whole or in part, only in a writing signed by all Parties to this Agreement, or by any counsel to whom such Parties have given a duly executed Power of Attorney. This Agreement may not be amended, altered, modified or waived, in whole or in part, orally. c. Execution in Counterparts. This Agreement may be signed in one or more counterparts. Each party may sign the agreement manually or by transmitting his or her signature page by facsimile or by sending a scan of the signed signature page by e-mail to all of the other
- 19 -

Parties. Each counterpart shall be considered an original if it includes signature pages signed by all parties manually, by facsimile, or by transmitting a signed signature page by email.
d. No Reliance. Each party to this Agreement warrants that he, she or it is acting upon his, her, or its independent judgment and upon the advice of his, her, or its own counsel and not in reliance upon any warranty or representation, express or implied, of any nature or kind by any other party, other than the warranties and representations expressly made in this Agreement.
e. Governing Law. This Agreement shall be interpreted, construed, enforced, and administered in accordance with the laws of Michigan, without regard to conflict of laws rules. The Parties waive any objection that each such party may now have or hereafter have to the venue of any suit, action, or proceeding and irrevocably consent to jurisdiction in the federal or state courts of Michigan to enforce the terms of this Agreement, and agree to accept and acknowledge service of any and all process which may be served in any such suit, action or proceeding to enforce the terms of this Agreement, except as otherwise set forth herein.
f. Press Release. The Parties will collaborate on a press release to announce the settlement of the Litigation and their optimism that this Agreement and the collaboration among the Parties contemplated herein will engender improved access to and care for children eligible for Medicaid in Michigan.
g. Binding on Successors. This Agreement shall be binding and shall inure to the benefit of the Parties and their respective successors, assigns, executors, administrators, heirs and legal representatives.
h. Mutual Preparation. This Agreement shall not be construed more strictly against one party than another merely by virtue of the fact that it may have been prepared by
- 20 -

counsel for one of the Parties, it being recognized that because of the arms-length negotiations between the Parties, all Parties have contributed to the preparation of this Agreement.
i. Gender Neutrality. All personal pronouns used in this Agreement, whether used in the masculine, feminine or neuter gender, shall include all other genders, and the singular shall include the plural and vice versa.
j. Recitals Incorporated by Reference. The Recitals are hereby incorporated by reference as part of the Agreement between the Parties.
k. Court Filings. No Party shall file any materials with the Court in support of the settlement that are inconsistent with the terms of the settlement agreement.
- 21 -