FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRUCE ANDERSON; JOHN 

WILSON; ROBERT AUSTIN;

CALIFORNIA ADVOCATES FOR 

NURSING HOME REFORM,

Plaintiffs-Appellants,

v.

MARK GHALY, Secretary of 

California Department of 

Health and Human Services,

Defendant-Appellee.

No. 16-16193 

D.C. No.

3:15-cv-05120-HSG 

OPINION

Appeal from the United States District Court

for the Northern District of California

Haywood S. Gilliam, Jr., District Judge, Presiding

Argued and Submitted September 6, 2018

San Francisco, California

Filed July 18, 2019
2 ANDERSON V. GHALY

Before: Marsha S. Berzon and Michelle T. Friedland, 

Circuit Judges, and Kathleen Cardone,* District Judge.

Opinion by Judge Berzon;

Concurrence by Judge Friedland

SUMMARY**

Civil Rights

The panel vacated the district court’s dismissal with 

prejudice of a complaint in an action brought pursuant to 42 

U.S.C. § 1983 by three former nursing home residents and a 

nonprofit advocacy group who alleged that the residents 

were subjected to unlawful “dumping,” the practice of 

sending a nursing home resident to a hospital for medical or 

mental health treatment but refusing to readmit the resident 

after discharge from the hospital. 

Using the appeals process established by the State of 

California, all three residents challenged their respective 

nursing homes’ refusal to readmit them after their 

hospitalizations, and all three prevailed. None, however, 

was readmitted. The residents brought a § 1983 action, 

asserting that provisions in the Federal Nursing Home 

Reform Amendments, which imposed various requirements 

for nursing homes to be reimbursed under Medicaid, created 

 * The Honorable Kathleen Cardone, United States District Judge for 

the Western District of Texas, sitting by designation.

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader. 
ANDERSON V. GHALY 3

a private statutory right enforceable under § 1983. The 

district court determined that the residents had no private 

right enforceable through § 1983 and dismissed the 

complaint.

Applying the factors set forth in Blessing v. Freestone, 

520 U.S. 329, 340 (1997), the panel held that the Federal 

Nursing Home Reform Amendments’ provisions requiring 

states to “provide for a fair mechanism . . . for hearing 

appeals on transfers and discharges of residents,” 42 U.S.C. 

§ 1396r(e)(3), created a statutory right enforceable under 

§ 1983. This right includes within it the opportunity for 

redress after a favorable appeal decision. The panel further 

concluded, however, that the residents’ complaint did not 

plausibly allege a violation of that right because the 

complaint did not allege that the State provided no 

mechanism whatsoever to enforce each administrative 

appeal order regarding nursing home transfers and 

discharges. The panel held that the residents’ failure to state 

a claim could perhaps be cured by repleading. The panel 

therefore vacated the district court’s dismissal with prejudice 

of the complaint and remanded for further proceedings 

consistent with its opinion.

Concurring in the judgment, Judge Friedland stated that 

she agreed that the residents’ complaint did not state a claim 

even assuming that the Federal Nursing Home Reform 

Amendments created an individual enforceable right to 

redress of an appeal decision under 42 U.S.C. § 1983. 

Accordingly, Judge Friedland stated that she would not have 

reached the more difficult questions addressed in the panel’s 

opinion.
4 ANDERSON V. GHALY

COUNSEL

Matthew Borden (argued) and J. Noah Hagey, Braunhagey 

& Borden LLP, San Francisco, California, for PlaintiffsAppellants.

Hadara R. Stanton (argued), Deputy Attorney General; 

Xavier Becerra, Attorney General of California; Julie WengGutierrez, Senior Assistant Attorney General; Susan M. 

Carson, Supervising Deputy Attorney General; Office of the 

California Attorney General, San Francisco, California; for 

Defendant-Appellee.

Mark E. Reagan, Scott J. Kiepen, and Katrina A. Pagonis, 

Hooper, Lundy & Bookman, P.C., San Francisco, 

California, for Amicus Curiae California Association of 

Health Facilities.
ANDERSON V. GHALY 5

OPINION

BERZON, Circuit Judge:

The Medicaid Act requires that states participating in 

Medicaid “provide for a fair mechanism . . . for hearing 

appeals on transfers and discharges of residents” of nursing 

homes covered by Medicaid. 42 U.S.C. § 1396r(e)(3). The 

question in this case is whether nursing home residents may 

challenge a state’s violation of this statutory requirement 

under 42 U.S.C. § 1983. We hold that they may.

I

A

Medicaid is a cooperative federal-state program 

designed to “enabl[e] each State . . . to furnish . . . medical 

assistance on behalf of families with dependent children and 

of aged, blind, or disabled individuals, whose income and 

resources are insufficient to meet the costs of necessary 

medical services.” 42 U.S.C. § 1396-1; see also Wilder v. 

Va. Hosp. Ass’n, 496 U.S. 498, 502 (1990). Among those 

services is treatment at “nursing facilities,” also known as 

nursing homes or long-term care facilities. See 42 U.S.C. 

§ 1396d(a).

In 1982, at the urging of Congress, the Health Care 

Financing Administration, a subdivision of the Department 

of Health and Human Services and the predecessor to the 

Centers for Medicare and Medicaid Services (CMS), 

commissioned a study to review the regulation of nursing 

homes participating in Medicare and Medicaid. H.R. Rep. 

No. 100-391, pt. 1, at 451–52 (1987), as reprinted in 1987 

U.S.C.C.A.N. 2313-1, 2313-271 to -272. The ensuing study, 

published in 1986, concluded that “[t]here is broad 
6 ANDERSON V. GHALY

consensus that government regulation of nursing homes, as 

it now functions, is not satisfactory because it allows too 

many marginal or substandard nursing homes to continue in 

operation.” Comm. on Nursing Home Regulation, Inst. of 

Med., Improving the Quality of Care in Nursing Homes 2 

(1986). To address these issues, the study offered a series of 

recommendations to strengthen the regulation of nursing 

homes. See id. at 25.

In response, Congress amended the Medicare and 

Medicaid Acts “to improve the quality of care for Medicaideligible nursing home residents,” adopting many of the 

study’s recommendations. H.R. Rep. No. 100-391, pt. 1, at 

452. Enacted as part of the Omnibus Budget Reconciliation 

Act of 1987, Pub L. No. 100-203, 101 Stat. 1330, the 

resulting amendments, the Federal Nursing Home Reform 

Amendments (FNHRA), imposed various requirements as a 

prerequisite for nursing homes to be reimbursed under 

Medicaid. Those requirements are codified at 42 U.S.C. 

§ 1396r. See Grammer v. John J. Kane Reg’l Ctrs.-Glen 

Hazel, 570 F.3d 520, 523 n.1 (3d Cir. 2009).1

Among FNHRA’s provisions are standards for residents’ 

“[t]ransfer and discharge rights.” 42 U.S.C. § 1396r(c)(2). 

Those standards require that “[a] nursing facility must permit 

each resident to remain in the facility and must not transfer 

or discharge the resident from the facility unless” one of six 

circumstances applies:

 1 Medicare, the federally funded counterpart to Medicaid that 

provides health insurance to older and disabled individuals, also provides 

coverage for nursing home services. See 42 U.S.C. § 1395d(a). FNHRA 

also amended the Medicare Act with substantially identical provisions. 

See id. § 1395i-3.
ANDERSON V. GHALY 7

(i) the transfer or discharge is necessary 

to meet the resident’s welfare and the 

resident’s welfare cannot be met in 

the facility;

(ii) the transfer or discharge is 

appropriate because the resident’s 

health has improved sufficiently so 

the resident no longer needs the 

services provided by the facility;

(iii) the safety of individuals in the facility 

is endangered;

(iv) the health of individuals in the facility 

would otherwise be endangered;

(v) the resident has failed, after 

reasonable and appropriate notice, to 

pay . . . for a stay at the facility; or

(vi) the facility ceases to operate.

Id. § 1396r(c)(2)(A).

If a nursing home does seek to transfer or discharge a 

resident, it must first provide notice to the resident. Id. 

§ 1396r(c)(2)(B). That notice must, among other required 

information, inform the resident of her “right to appeal the 

transfer or discharge under the State process established 

under subsection (e)(3) of this section.” Id.

§ 1396r(c)(2)(B)(iii)(I).

Subsection (e)(3), in turn, sets forth specific 

requirements for the state-established appeals process:
8 ANDERSON V. GHALY

The State, for transfers and discharges from 

nursing facilities effected on or after October 

1, 1989, must provide for a fair mechanism, 

meeting the guidelines established under 

subsection (f)(3) of this section, for hearing 

appeals on transfers and discharges of 

residents of such facilities; but the failure of 

the Secretary to establish such guidelines 

under such subsection shall not relieve any 

State of its responsibility under this 

paragraph.

Id. § 1396r(e)(3). 

The phrase “guidelines established under subsection 

(f)(3)” refers to another FNHRA provision instructing the 

Secretary of Health and Human Services to “establish 

guidelines for minimum standards which State appeals 

processes under subsection (e)(3) . . . must meet.” Id.

§ 1396r(f)(3). In accordance with that instruction, CMS has 

promulgated a series of regulations fleshing out the 

requirements for the state-established appeals process. See

42 C.F.R. §§ 431.200–.246. Those regulations provide that 

the state “must grant an opportunity for a hearing to . . . [a]ny 

resident who requests it because he or she believes a skilled 

nursing facility or nursing facility has erroneously 

determined that he or she must be transferred or discharged.” 

Id. § 431.220(a). The regulations also set forth procedural 

requirements for the hearing itself. See id. §§ 431.240–.243. 

And, ultimately, if “[t]he hearing decision is favorable to the 

applicant or beneficiary,” the regulations provide that the 

state “must . . . , if appropriate, provide for admission or 

readmission of an individual to a facility.” Id. § 431.246.
ANDERSON V. GHALY 9

B

California’s implementation of Medicaid is known as the 

California Medical Assistance Program, or Medi-Cal. See

Cal. Welf. & Inst. Code §§ 14000.4, 14063. The Medi-Cal 

program provides for appeals on transfer and discharge 

decisions, as required by FNHRA. Nursing home residents 

who believe they are being or have been erroneously 

transferred or discharged may appeal the nursing home’s 

decision to the California Department of Health Care 

Services (DHCS). See Cal. Health & Safety Code § 100171. 

In addition, if the resident “has been hospitalized . . . and 

asserts his or her rights to readmission . . . and the facility 

refuses to readmit him or her, the resident may appeal the 

facility’s refusal.” Id. § 1599.1(h)(1). “The refusal . . . shall 

be treated as if it were an involuntary transfer under federal 

law, and the rights and procedures that apply to appeals of 

transfers and discharges of nursing facility residents shall 

apply to the resident’s appeal under this subdivision.” Id.

§ 1599.1(h)(2). A DHCS hearing decision may be appealed 

by either party via a writ of administrative mandamus to a 

state superior court; after a successful appeal, the superior 

court may order DHCS to vacate the hearing decision. See

Cal. Civ. Proc. Code § 1094.5(f); see also St. John of God 

Ret. & Care Ctr. v. State Dep’t of Health Care Servs., 2 Cal. 

App. 5th 638, 647 (Ct. App. 2016). There is, however, no 

provision allowing the superior court in the mandamus 

proceeding to order compliance with the decision.

California law also provides a private right of action for 

“[a] current or former resident or patient of a skilled nursing 

facility . . . against the licensee of a facility who violates any 

rights of the resident or patient as set forth in the Patients Bill 

of Rights . . . or any other right provided for by federal or 

state law or regulation.” Cal. Health & Safety Code 
10 ANDERSON V. GHALY

§ 1430(b). Under this section, a nursing home resident may 

seek up to $500 in damages for each violation, injunctive 

relief, and attorney’s fees and costs. Id.; see also Jarman v. 

HCR ManorCare, Inc., 9 Cal. App. 5th 807, 811 (Ct. App. 

2017) (holding that, under section 1430, “a plaintiff would 

be entitled to a measure of damages for each cause of action 

asserted under the statute” (emphasis omitted)).

C

The individual plaintiffs in this case—Bruce Anderson, 

John Wilson, and Robert Austin (“the Residents”)—are 

former residents of certified nursing homes in California. 

Each alleges that he was subject to “dumping,” the practice 

of sending a resident to a hospital for medical or mental 

health treatment but refusing to readmit the resident after 

discharge from the hospital. The Residents maintain that 

because Medi-Cal provides less compensation than 

Medicare or private insurance, nursing homes have a strong 

financial incentive to engage in dumping if Medi-Cal is 

paying for the resident’s stay. “Dumping,” the Residents 

allege, is “one of the biggest problems” nursing home 

residents in California face. 

Using the appeals process established by the State, all 

three Residents challenged their respective nursing homes’ 

refusal to readmit them after their hospitalization, and all 

three prevailed. None, however, has been readmitted. Each 

Resident’s respective nursing home continues to refuse 

readmission, and, Plaintiffs allege, both DHCS and the 

California Department of Public Health (CDPH) have taken 

the position that the agencies are not obligated to enforce 

decisions resulting from the appeals process. 

In October 2015, the California Advocates for Nursing 

Home Reform (CANHR), a nonprofit advocacy group, sent 
ANDERSON V. GHALY 11

a letter to DHCS requesting that the agency enforce its 

decision in resident Bruce Anderson’s appeal. In response, 

DHCS reiterated that it “ha[d] no authority to enforce its own 

orders,” but noted that it was “looking at the issue.” About a 

month later, CANHR met with Diana Dooley, then Secretary 

for the California Department of Health and Human 

Services, and “requested her to make the agencies over 

which she ha[d] oversight follow the law.” Although 

“Secretary Dooley represented that the State was ‘doing 

something’ to fix the problem,” nothing concrete came out 

of that meeting. CANHR then wrote a letter to Secretary 

Dooley notifying her that, “absent immediate relief from the 

State,” it would file suit. The State responded, “listing 

various enforcement actions it could take,” but none of those 

actions “involved enforcing DHCS readmission hearing 

orders.” 

Unsatisfied, CANHR, joined by the three individual 

residents, filed an action under 42 U.S.C. § 1983 against 

Secretary Dooley in her official capacity.2 The complaint 

stated that FNHRA creates a federal right to “a fair 

mechanism . . . for hearing appeals on transfers and 

discharges of residents.” 42 U.S.C. § 1396r(e)(3). According 

to the Residents, because “there is no agency in California 

that enforces DHCS readmission orders . . . , the State has 

not provided residents with their right to an administrative 

procedure that provides for prompt readmission if they are 

successful.” The Residents sought declaratory and injunctive 

relief. California moved to dismiss the complaint, arguing 

that the FNHRA provision was not enforceable under 

§ 1983. The district court agreed, concluding that the 

residents “have no private federal right enforceable through 

 2 Mark Ghaly has since been appointed Secretary, and has been 

substituted as the new appellee. See Fed. R. App. P. 43(c)(2).
12 ANDERSON V. GHALY

§ 1983.” Anderson v. Dooley, No. 15-CV-05120-HSG, 2016 

WL 3162167, at *2 (N.D. Cal. June 7, 2016).

This appeal followed. 

II

Under 42 U.S.C. § 1983, plaintiffs may sue state actors 

for “violations of federal statutory as well as constitutional 

law.” Maine v. Thiboutot, 448 U.S. 1, 4 (1980); see also Ball 

v. Rodgers, 492 F.3d 1094, 1103 (9th Cir. 2007). To do so, 

“a plaintiff must assert the violation of a federal right, not 

merely a violation of federal law.” Blessing v. Freestone, 

520 U.S. 329, 340 (1997). Under the Blessing test, “a 

particular statutory provision gives rise to a federal right” if 

three requirements are met: (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 competence,” and (3) 

“the statute must unambiguously impose a binding 

obligation on the States.” Id. at 340–41 (quoting Wright v. 

City of Roanoke Redev. & Hous. Auth., 479 U.S. 418, 431 

(1987)).3

Here, the Residents assert that FNHRA’s provisions 

requiring states to “provide for a fair mechanism . . . for 

hearing appeals on transfers and discharges of residents,” 42 

 3 We note that these requirements have been applied to “federal 

statutes enacted pursuant to the Constitution’s Spending Clause.” Ball, 

492 F.3d at 1104 n.15. It remains unclear “[w]hether the same degree of 

statutory clarity in creating rights enforceable under § 1983 is necessary 

outside of the Spending Clause context.” Id. Because the Medicaid Act 

(as amended by FNHRA) is a Spending Clause statute, we apply the test 

as set forth in Blessing.
ANDERSON V. GHALY 13

U.S.C. § 1396r(e)(3), create a statutory right enforceable 

under § 1983. This right, the Residents maintain, includes 

the appropriate redress after a favorable appeal decision. We 

consider this claim against the Blessing factors.

A

Under the first prong of the Blessing test, we “must . . . 

determine whether Congress intended to create a federal 

right.” Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002) 

(emphasis omitted). “[E]vidence of such intent can be found 

in the statute’s language as well as in its overarching 

structure.” Ball, 492 F.3d at 1105. Specifically, a statute’s 

“text must be ‘phrased in terms of the persons benefited’” 

with “rights-creating terms.” Gonzaga, 536 U.S. at 284 

(quoting Cannon v. Univ. of Chi., 441 U.S. 677, 692 n.13 

(1979)).

Here, the district court concluded that Congress did not 

intend to create a statutory right, reasoning that, “[r]ather 

than phrasing the subsections to focus on the nursing home 

residents who inevitably benefit from the FNHRA,” the 

provisions at issue “‘unmistakably focus’ on duties imposed 

on the subjects of the statutes—the state and the secretary, 

respectively.” Anderson, 2016 WL 3162167, at *3. The 

district court effectively held that, because FNHRA’s 

provisions regarding the appeals process were phrased as a 

directive to the state, they could not create an enforceable 

right under § 1983. See id. We cannot agree.

To begin, the district court’s conclusion disregards the 

statutory text. Far from mentioning “residents” only “in 

passing,” as the district court stated, id. at *4, FNHRA 

directly focuses on them in discussing the appeals process 

for transfers and discharges, using “rights-creating terms,”

Gonzaga, 536 U.S. at 284. FNHRA’s notice requirements—
14 ANDERSON V. GHALY

listed under a subsection titled “[t]ransfer and discharge 

rights,” 42 U.S.C. § 1396r(c)(2) (emphasis added)—instruct 

that nursing homes must provide notice to residents before 

attempting to transfer or discharge them. Id.

§ 1396r(c)(2)(B). That notice, in turn, must specifically 

inform residents of their “right to appeal the transfer or 

discharge under the State process established under 

subsection (e)(3) of this section.” Id. § 1396r(c)(2)(B)(iii)(I) 

(emphasis added). Thus, FNHRA expressly states that the 

appeals process, mandated by FNHRA as a condition of 

federal funding, provides residents with a right to use that 

process, as well as notice of that right.

Moreover, the district court’s underlying reason for its 

conclusion—that a statute cannot create rights when phrased 

as a directive to the state—is wrong. It has never been a 

requirement that a statute focus solely on individuals, to the 

exclusion of all others, to demonstrate congressional intent 

to create a statutory right. To the contrary, cooperative 

federalism programs like Medicaid, under which “Congress 

provides funds to the states on the condition that the state 

spend the funds in accordance with federal priorities,” 

Roderick M. Hills, Jr., The Political Economy of 

Cooperative Federalism: Why State Autonomy Makes Sense 

and “Dual Sovereignty” Doesn’t, 96 Mich. L. Rev. 813, 859 

(1998), are necessarily phrased as a set of directives to states 

that wish to receive federal funding.

Given the conditional nature of these programs, the 

statutes enacting them will nearly always be phrased with a 

partial focus on the state. Although some of these provisions 

are broadly structural, see, e.g., Blessing, 520 U.S. at 343, 

others specify that, to qualify for funding, the state must 

accord enunciated rights to the program’s beneficiaries, see, 

e.g., Wilder, 496 U.S. at 510. Insofar as the federal statute 
ANDERSON V. GHALY 15

contains “rights-creating” language “phrased in terms of the 

persons benefited,” Gonzaga, 536 U.S. at 284 (quoting 

Cannon, 441 U.S. at 692 n.13), it falls into the latter 

category—a statute for which recognizing and enforcing 

individual beneficiaries’ rights is a condition for federal 

funding of the state program. And where a right so created is 

at stake, the right is enforceable under § 1983. See Wilder, 

496 U.S. at 510.

Two cases in which we concluded that certain provisions 

of the Medicaid Act created rights enforceable under § 1983 

confirm that the district court’s dichotomy—between the 

creation of individual rights in a Spending Clause statute and 

directives to the states seeking to qualify for funding, see

Anderson, 2016 WL 3162167, at *4—is a false one.

The first, Watson v. Weeks, 436 F.3d 1152 (9th Cir. 

2006), involved a provision of the Medicaid Act requiring 

that certain types of care and services be available under 

state Medicaid plans. Id. at 1159. Notably, the provision was 

phrased as a directive to the state, requiring that “[a] State 

plan for medical assistance . . . provide . . . for making 

medical assistance available” to eligible individuals. 42 

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

the phrasing concerned a “State plan,” Watson held that this 

provision “create[d] a right enforceable by section 1983,” 

noting that the language of the statute was “unmistakably 

focused on the specific individuals benefited.” 436 F.3d at 

1160.

The second case, Ball v. Rodgers, considered Medicaid’s 

waiver program for home- and community-based services, 

under which states could “be reimbursed for providing 

beneficiaries with noninstitutional care, so long as the cost 

of providing this care is less than or equal to the cost of 

caring for the same beneficiaries in more traditional long-
16 ANDERSON V. GHALY

term institutions.” 492 F.3d at 1107. The statute establishing 

the waiver program included “free choice provisions,” 

requiring that, as a prerequisite to approval of a waiver 

program, a state provide “assurances” that beneficiaries of 

the waiver program be “informed of the feasible 

alternatives.” Id. (emphasis omitted) (quoting 42 U.S.C. 

§ 1396n(c)(2)(C)). Ball held that the requirement that the 

state make these assurances to individuals created a right in 

the covered individuals, enforceable under § 1983. Id.

Here, the provisions establishing the appeals process, 

§ 1396r(e)(3) and § 1396r(f)(3), are directives to the state 

and federal Secretary of Health and Human Services, 

respectively. But with respect to the substance of those 

directives, the statute contains express “rights-creating 

terms,” Gonzaga, 536 U.S. at 284 (quoting Cannon, 441 

U.S. at 692 n.13), regarding individuals’ “[t]ransfer and 

discharge rights” generally and the “right to appeal” 

particularly, 42 U.S.C. § 1396r(c)(2), (c)(2)(B)(iii)(I). We 

hold that, in delineating the requirements that states provide 

for an appeals process, Congress created a right benefiting 

nursing home residents, including the Residents here. The 

district court erred in concluding otherwise.

B

California does not defend the district court’s conclusion 

that FNHRA created no individual right to appeal a nursing 

home transfer or discharge. Instead, the State maintains that 

any such right does not include any state implementation of 

the decision reached on appeal. At bottom, the State’s 

position is that the FNHRA provides only the right to the 

hearing decision itself. That decision, according to the State, 

need not have any real-world effect. The statute’s text, 

structure, implementing regulations, and overall purpose 
ANDERSON V. GHALY 17

lead us to conclude otherwise. The right to an appeal under 

FNHRA, we hold, includes within it provision for some 

state-provided process capable of providing relief.

1

First, the text: Again, FNHRA requires states to “provide 

for a fair mechanism . . . for hearing appeals on transfers and 

discharges of residents.” 42 U.S.C. § 1396r(e)(3). The 

statute further specifies that this provision vests residents 

with the “right to appeal the transfer or discharge under the 

State process established under subsection (e)(3) of this 

section.” Id. § 1396r(c)(2)(B)(iii)(I). 

An “appeal” in legal parlance ordinarily refers to a 

process by which an earlier action—here, the transfer or 

discharge of a resident—can be challenged and, if the facts 

establish that the decision to take that action was invalid, 

overturned. See Appeal, Black’s Law Dictionary (10th ed. 

2014) (“A proceeding undertaken to have a decision 

reconsidered by a higher authority.” (emphasis added)); 

Appeal, Oxford English Dictionary (2d ed. 1989) (“The 

transference of a case from an inferior to a higher court or 

tribunal, in the hope of reversing or modifying the decision 

of the former.” (emphasis added)). Implicit in these 

definitions is the understanding that a successful appeal will 

have some actual effect on the challenged action, here a 

transfer or discharge. An appeal lacking the practical 

capacity to reverse or modify the prior decision is but “an 

arid ritual of meaningless form.” Staub v. City of Baxley, 355 

U.S. 313, 320 (1958). So the statutory use of the term 

“appeal” encompasses the issuance of an enforceable order 

to redress an invalid original decision.

That conclusion is bolstered by the structure of FNHRA. 

FNHRA prohibits nursing homes from transferring or 
18 ANDERSON V. GHALY

discharging residents except in six narrow circumstances, 

setting forth specific grounds for invalidating a nursing 

home’s transfer or discharge decision on appeal. Id.

§ 1396r(c)(2)(A). The statute also provides comprehensive 

safeguards for ensuring that each resident’s right to an 

appeal will be protected. Before undertaking a transfer or 

discharge of a resident, a nursing home must “notify the 

resident (and, if known, an immediate family member of the 

resident or legal representative) of the transfer or discharge 

and the reasons therefor.” Id. § 1396r(c)(2)(B)(i)(I). 

FNHRA further requires a nursing home to “record the 

reasons” for each transfer or discharge “in the resident’s 

clinical record” so that a record of the nursing home’s 

decision is available for review. Id. § 1396r(c)(2)(B)(i)(II). 

Providing such extensive procedural protections for each 

resident’s right to appeal would be entirely pointless if that 

right resulted in a purely advisory opinion, not including any 

possibility of reversing the action challenged. 

Moreover, FNHRA expressly equips states with tools for 

enforcing the nursing home standards imposed by the 

statute. FNHRA provides that a state may terminate a 

nursing home’s participation in Medicaid if the state finds 

that the nursing home fails to comply with FNHRA’s 

standards. Id. § 1396r(h)(1). FNHRA also requires states to 

“establish by law (whether statute or regulation)” a number 

of remedies against noncompliant nursing homes, including 

the denial of Medicaid reimbursements, civil monetary 

penalties, the appointment of temporary management, and 

the closure of nursing homes. Id. § 1396r(h)(2)(A). FNHRA 

therefore suggests possible sanctions available to the states 

if a nursing home does not comply with a directive to 

readmit a discharged or transferred resident. 
ANDERSON V. GHALY 19

Our conclusion that the right to appeal includes the 

ability to obtain relief accords with the overall purpose of 

FNHRA. FNHRA was enacted to address a “broad 

consensus that government regulation of nursing homes, as 

it now functions, is not satisfactory because it allows too 

many marginal or substandard nursing homes to continue in 

operation.” Comm. on Nursing Home Regulation, supra, at 

2. Congress was “deeply troubled that the Federal 

government, through the Medicaid program, continues to 

pay nursing facilities for providing poor quality care to 

vulnerable elderly and disabled beneficiaries.” H.R. Rep. 

No. 100-391, pt. 1, at 452. In light of this focus on inadequate 

nursing homes, Congress could not have intended FNHRA 

to create meaningless show trials that allow nursing homes 

to persist in improper transfers and discharges.

2

FNHRA directs states to “establish guidelines for 

minimum standards which State appeals processes . . . must 

meet,” 42 U.S.C. § 1396r(f)(3), but also provides that “the 

failure of the Secretary to establish . . . guidelines . . . shall 

not relieve any State of its responsibility under this 

paragraph,” id. § 1396r(e)(3). Given the statutory language 

and structure, that “responsibility” includes provision for 

redressing an invalid transfer or discharge decision.

The Secretary did, however, follow FNHRA’s directive 

to “establish guidelines for minimum standards which State 

appeals processes . . . must meet.” Id. § 1396r(f)(3). Via 

notice-and-comment rulemaking, CMS promulgated 

regulations providing that a state participating in Medicaid 

“must grant an opportunity for a hearing to . . . [a]ny resident 

who requests it because he or she believes a skilled nursing 

facility or nursing facility has erroneously determined that 

he or she must be transferred or discharged.” 42 C.F.R. 
20 ANDERSON V. GHALY

§ 431.220(a)(2). The regulations further provide that, if 

“[t]he hearing decision is favorable to the applicant or 

beneficiary,” the state “must . . . , if appropriate, provide for 

admission or readmission of an individual to a facility.” Id.

§ 431.246. 

“As an agency interpretation of a statute, a regulation 

may be relevant in determining the scope of the right 

conferred by Congress.” Save Our Valley v. Sound Transit, 

335 F.3d 932, 943 (9th Cir. 2003) (emphasis added). That 

principle has particular force here, as FNHRA expressly 

prescribes compliance with the CMS guidelines regarding 

the appeal process. See 42 U.S.C. § 1396r(e)(3).4

CMS’s determination that states “must . . . , if 

appropriate, provide for admission or readmission to a 

facility if . . . the hearing decision is favorable to the 

applicant or beneficiary,” 42 C.F.R. § 431.246(a), is fully 

consistent with the understanding of the right to “appeal” we 

have derived from the statutory language and context—that 

the right to an appeal to which there is a right under FNHRA 

includes an enforceable order overturning an invalid 

discharge or transfer.5

 4 Save Our Valley also held that “agency regulations cannot 

independently create rights enforceable through § 1983.” 335 F.3d at 

939. In accord with that holding, we have focused our rights analysis on 

the statute, turning to the regulation only as one factor supporting of our 

interpretation.

5 In response to an inquiry from CDPH “requesting guidance . . . 

regarding whether State Survey Agencies are responsible for enforcing 

Transfer/Discharge Appeal (TDA) and Refusal to Readmit (RTR) 

hearing decisions,” CMS reiterated this position in an opinion letter, 
ANDERSON V. GHALY 21

3

The Second Circuit has reached the same conclusion 

regarding the scope of a similar statutory right under the 

Medicaid Act based on the same regulation here applicable, 

42 C.F.R. § 431.246. In Catanzano ex rel. Catanzano v. 

Wing, 103 F.3d 223 (2d Cir. 1996), plaintiffs sued to enforce 

the Medicaid Act’s requirement that states “‘provide for 

granting an opportunity for a fair hearing’ whenever an 

applicant’s requested services are denied.” Id. at 227 

(quoting 42 U.S.C. § 1396a(a)(3)). Considering the 

plaintiffs’ challenge, the Second Circuit noted that “the 

results of such hearings will be binding on the state,” citing 

§ 431.246. Id. at 228 (citing 42 C.F.R. § 431.246); see also

Shakhnes v. Berlin, 689 F.3d 244, 258 (2d Cir. 2012) 

(reaffirming that Medicaid hearing decisions are binding 

based on § 431.246).6 “[T]he statutory right to a fair 

hearing,” Catanzano explained, “must include within it the 

right to effective redress.” 103 F.3d at 249 (quoting 

Greenstein v. Bane, 833 F. Supp. 1054, 1077 (S.D.N.Y. 

1993)).

* * *

We hold, with regard to Blessing’s first, rights-creating

prong, that FNHRA’s recognition of an individual right to “a 

fair mechanism . . . for hearing appeals on transfers and 

discharges,” 42 U.S.C. § 1396r(e)(3), includes within it the 

opportunity for redress.

 noting that “CMS regulations are clear that the State Agency must 

promptly make corrective actions.” 

6 That regulation, § 431.246, also implemented the fair hearing 

provision at issue in Catanzano. See 42 C.F.R. § 431.200(a), (c).
22 ANDERSON V. GHALY

C

The second prong of the Blessing test requires that “the 

plaintiff . . . demonstrate that the right assertedly protected 

by the statute is not so ‘vague and amorphous’ that its 

enforcement would strain judicial competence.” 520 U.S. at 

340–41 (quoting Wright, 479 U.S. at 431). The right to an 

appeal provided by FNHRA, including the opportunity for 

state enforcement of the order issued by the appellate body, 

meets that requirement.

“[A] federal right to a fair hearing” is “an objective 

individual and judicially reviewable right.” ASW v. Oregon, 

424 F.3d 970, 978 (9th Cir. 2005). FNHRA provides six 

specific criteria for which a transfer or a discharge is 

permissible, see 42 U.S.C. § 1396r(c)(2)(A), thereby making 

the substance of an appeals decision quite amenable to 

judicial consideration. 

The opportunity for potential redress contained within 

the right to an appeal is also well within the judicial 

enforcement competence. As CMS’s regulation indicates, 

enforcement of the appeal begins with an order to the nursing 

home to admit or readmit transferred or discharged residents. 

See 42 C.F.R. § 431.246. In fact, DHCS already provides 

such orders—the individual residents in this case received 

appeals decisions invaliding their nursing homes’ transfer or 

discharge decisions and ordering readmission. And, as 

noted, FNHRA contains within it specific sanctions states 

can apply to noncompliant nursing homes; no judicial 

invention is needed.7

 7 Alternatively, the state may choose to provide other forms of 

redress against noncompliant nursing homes—for example, allowing 
ANDERSON V. GHALY 23

That the CMS regulation implementing the appeals 

process, 42 C.F.R. § 431.246, provides for redress “if 

appropriate” does not render the redress requirement too 

vague and amorphous for judicial enforcement. Again, our 

conclusion that the right to an appeal includes the 

opportunity for redress is an interpretation of FNHRA’s text, 

not its implementing regulations. Given that interpretation, 

we understand “if appropriate” in § 431.246, consistently 

with our interpretation of the statute, to require “admission 

or readmission” if (1) the hearing decision so requires and 

(2) there is no practical impediment to enforcement. As to 

(1), a hearing decision can be favorable to a challenger but 

not order admission or readmission. See, e.g., St. John, 2 Cal. 

App. 5th at 642–43, 646 (holding that a nursing home erred 

in refusing to readmit a resident but concluding that “the 

order to offer readmittance can provide no effective relief, 

because [the resident] will not accept readmittance”). As to 

(2), an admission order may as a practical matter become 

unenforceable because, for example, the resident has passed 

away or no longer needs nursing home care, or the nursing 

home has closed. But where (1) and (2) obtain, as a statutory 

matter, redress is, in the language used in the regulation, 

“appropriate,” and the state must in some manner assure it. 

See Appropriate, Oxford English Dictionary (2d ed. 1989) 

(“Specially fitted or suitable, proper.”).

Finally, under the third prong of the Blessing test, we ask 

whether “the statute . . . unambiguously impose[s] a binding 

obligation on the States.” 520 U.S. at 341. Here, the statute 

 lawsuits against the facilities to enforce appeal orders. At this stage of 

the proceedings we are determining only whether the appeal 

requirement, including the opportunity for redress, meets the Blessing

requirements for stating a § 1983 claim, not whether any particular form 

of redress complies with the statute.
24 ANDERSON V. GHALY

could not be clearer: “The State . . . must provide for a fair 

mechanism . . . for hearing appeals on transfers and 

discharges . . . .” 42 U.S.C. § 1396r(e)(3) (emphasis added). 

This provision is “worded in mandatory, not precatory 

terms; it obviously sets out specific requirements” for the 

state. Watson, 436 F.3d at 1161. Thus, the final prong of the 

Blessing test is satisfied.

III

“Even if a plaintiff demonstrates that a federal statute 

creates an individual right, there is only a rebuttable 

presumption that the right is enforceable under § 1983.” 

Blessing, 520 U.S. at 341; see also Middlesex Cty. Sewerage 

Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 20 (1981). 

That presumption can be overcome “if Congress 

‘specifically foreclosed a remedy under § 1983.’” Blessing, 

520 U.S. at 341 (quoting Smith, 468 U.S. at 1005 n.9). 

“Congress may do so expressly, by forbidding recourse to 

§ 1983 in the statute itself, or impliedly, by creating a 

comprehensive enforcement scheme that is incompatible 

with individual enforcement under § 1983.” Id.

We “do not lightly conclude that Congress intended to 

preclude reliance on § 1983 as a remedy for the deprivation 

of a federally secured right.” Wilder, 496 U.S. at 523 

(quoting Wright, 479 U.S. at 423–24). For such a conclusion 

to be warranted, “the remedial mechanisms provided” must 

be “sufficiently comprehensive and effective to raise a clear 

inference that Congress intended to foreclose a § 1983 cause 

of action for the enforcement of [the plaintiffs’] rights 

secured by federal law.” Wright, 479 U.S. at 425.

Here, California contends that we should conclude that 

Congress has impliedly foreclosed enforcement FNHRA’s 

right to an appeal under § 1983 because state and federal law 
ANDERSON V. GHALY 25

already provide remedies for a nursing home’s failure to 

comply with readmission orders. These remedies do not 

satisfy the “difficult showing” required to demonstrate an 

implied foreclosure of a § 1983 remedy. Blessing, 520 U.S. 

at 346. 

First, implied foreclosure is a question of congressional 

intent. See Sea Clammers, 453 U.S. at 20. State law remedies 

therefore cannot, as a general matter, imply the 

unavailability of a § 1983 remedy. See Wilder, 496 U.S. at 

523. Congress is unlikely to be aware of such remedies, 

which will vary from state to state and may not exist in some 

states. Here, the diverse remedies for improper nursing home 

transfers or discharges offered by California law—private 

suits against the nursing homes, investigations by state 

agencies, and enforcement actions by the California 

Attorney General—cannot speak to whether Congress

intended to foreclose enforcement under § 1983 of the 

FNHRA right to appeal nursing home transfers and 

discharges.

The federal law remedies on which California relies fare 

no better. The State notes that FNHRA itself requires that 

“each State establish by law” certain remedies against 

noncompliant nursing homes. See 42 U.S.C. § 1396r(h)(1), 

(h)(2)(A). Those remedies, California contends, should 

impliedly foreclose the availability of a § 1983 remedy. Not 

so.

The remedies California posits pertain to “enforcing 

facilities’ compliance” with FNHRA. But the Residents are 

not suing under § 1983 to enforce a right to readmission 

against the nursing homes. Instead, the Residents seek to use 

§ 1983 to enforce against the state the statutory right to an 

appeal. Thus, these federal provisions for compelling 

nursing home compliance do not independently provide 
26 ANDERSON V. GHALY

redress for the right the plaintiffs allege has been violated 

here—the FNHRA provision for a right to an appeal that 

includes some form of state implementation of a favorable 

decision. Instead, as we have explained, the availability to 

the states of statutory remedies to compel nursing home 

compliance reinforces our conclusion that the right to an 

appeal under FNHRA includes the opportunity for state 

implementation of an order issued on appeal. See supra pp. 

19–20.

The only remedy on which California relies directed at 

the State’s appeals process is the federal government’s 

approval process for state Medicaid plans, and its 

concomitant ability to withhold federal funds. This type of 

remedy alone is insufficient to foreclose impliedly a § 1983 

remedy where a federal Spending Clause statute has created 

a right in individual beneficiaries. See Blessing, 520 U.S. at 

347–48; Ball, 492 F.3d at 1117.

In sum, we have not been presented with any indication, 

express or implied, that Congress intended to foreclose a 

§ 1983 remedy for enforcement of the right to an appeal 

under FNHRA, a right that includes the opportunity for some 

form of state enforcement of the result of the appeal.

IV

Although we conclude that FNHRA provides the 

Residents with a statutory right to an appeal—a right that 

includes state implementation of the decision on appeal—we 

do not believe that the Residents’ present complaint 

plausibly alleges a violation of that right. See Bell Atl. Corp. 

v. Twombly, 550 U.S. 544, 555 (2007).

Here, the Residents’ complaint alleges only that state 

agencies—namely, DHCS and CDPH—refuse to enforce 
ANDERSON V. GHALY 27

favorable hearing decisions. The complaint specifically 

states that FNHRA’s right to an appeal is violated because 

“there is no agency in California that enforces DHCS 

readmission orders” and that “the State has not provided 

residents with their right to an administrative procedure that 

provides for prompt readmission” after a favorable hearing 

decision. 

But we do not find in § 1396r(e)(3) the requirement that 

California implement hearing decisions directly through a 

state agency. We do not address what specific forms of 

redress would be necessary to comply with this provision. 

See supra note 7. That question “speaks to what constitutes 

a substantive violation of [the statute], an issue we do not 

address.” Ball, 492 F.3d at 1116; see also Gomez-Perez v. 

Potter, 553 U.S. 474, 483 (2008) (cautioning against 

“improperly conflat[ing] the question whether a statute 

confers a private right . . . with the question whether the 

statute’s substantive prohibition reaches a particular form of 

conduct”). At a minimum, however, we recognize that 

§ 1396r(e)(3) does not limit the state-provided enforcement 

mechanism to direct agency enforcement by the State.

California could, for example, provide that state courts 

will enforce DHCS hearing decisions through the private 

cause of action provided by section 1430 of the California 

Health and Safety Code. See Cal. Health & Safety Code 

§ 1430(b). We note that, “[u]nder California law, a prior 

administrative proceeding, if upheld on review (or not 

reviewed at all), will be binding in later civil actions to the 

same extent as a state court decision if ‘the administrative 

proceeding possessed the requisite judicial character.’” 

White v. City of Pasadena, 671 F.3d 918, 927 (9th Cir. 2012) 

(quoting Runyon v. Bd. of Trs. of Cal. State Univ., 48 Cal. 

4th 760, 773 (2010)). The complaint does not allege that this 
28 ANDERSON V. GHALY

aspect of California law is insufficient to ensure the right to 

an appeal provided by FNHRA.8 Nor does it allege with any 

specificity why the administrative remedies provided by 

California law are unavailable to enforce a favorable order 

after an appeal that a specific resident be readmitted to a 

nursing facility. See Cal. Health & Safety Code § 1423(a) 

(requiring that if a violation is confirmed, CDPH either 

“[r]ecommend the imposition of a federal enforcement 

remedy or remedies on a nursing facility in accordance with 

federal law” or “[i]ssue a citation pursuant to state licensing 

laws, and if the facility is a nursing facility, may recommend 

the imposition of a federal enforcement remedy”). 

In short, the complaint as it currently exists does not 

allege that the State provides no mechanism whatsoever to 

enforce each administrative appeal order regarding nursing 

home transfers and discharges. Because the Residents have 

not so alleged, their complaint does not provide “enough 

facts to state a claim to relief that is plausible on its face.” 

Twombly, 550 U.S. at 570.

V

Here, the district court dismissed the Residents’ 

complaint with prejudice, concluding that FNHRA does not 

provide a statutory right enforceable under § 1983. For the 

reasons discussed above, that conclusion was wrong.

 8 The Residents suggest that some California courts have not 

regarded DHCS decisions are preclusive. The present complaint, 

however, does not address the sufficiency of enforcement in state court 

proceedings.
ANDERSON V. GHALY 29

As noted, the present complaint does not allege a 

plausible violation of the FNHRA appeals provision as we 

have construed it. But “[d]ismissal with prejudice and 

without leave to amend is not appropriate unless it is clear 

on de novo review that the complaint could not be saved by 

amendment.” Eminence Capital, LLC v. Aspeon, Inc., 316 

F.3d 1048, 1052 (9th Cir. 2003) (per curiam). The Residents’ 

failure to state a claim can perhaps be cured by repleading. 

We therefore vacate the district court’s dismissal of the 

Residents’ complaint and remand for further proceedings 

consistent with this opinion.

VACATED and REMANDED.

FRIEDLAND, Circuit Judge, concurring in the judgment:

I concur in the judgment. For the reasons in Part IV of 

the majority opinion, I agree that the Residents’ Complaint 

does not state a claim. Because that is true even assuming 

that FNHRA creates an individual right to redress of an 

appeal decision and that such a right is enforceable under 

42 U.S.C. § 1983, and because we do not need to decide 

more than what is decided in Part IV to resolve this appeal, 

I would not reach the more difficult questions discussed in 

Parts II and III.