United States Court of Appeals

For the First Circuit

No. 02-1059

BONNIE BRYSON and CLAIRE SHEPARDSON, on behalf of themselves 

and all others similarly situated,

Plaintiffs, Appellees,

v.

DONALD SHUMWAY, in his capacity as Commissioner of NEW HAMPSHIRE

DEPARTMENT OF HEALTH AND HUMAN SERVICES, 

SUSAN FOX, in her capacity as Director of NEW HAMPSHIRE DIVISION

OF DEVELOPMENTAL SERVICES,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

Boudin, Chief Judge, 

Bownes, Senior Circuit Judge, and

Lynch, Circuit Judge.

Sheila Zakre, with whom Amy Messer and Disabilities Rights

Center, Inc. were on brief, for appellees.

Daniel J. Mullen, Associate Attorney General, with whom Philip

T. McLaughlin, Attorney General, and Suzanne M. Gorman, Senior

Assistant Attorney General, were on brief, for appellants.

October 15, 2002
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LYNCH, Circuit Judge. Plaintiffs suffer from acquired

brain disorders and have the option to receive medical care for

that condition under the Medicaid program. They would prefer to

receive those services in a home care setting through a model

program New Hampshire has established under a Medicaid waiver

approved by the Secretary of Health and Human Services. 42 U.S.C.

§ 1396n(c) (2000). The difficulty is that there are more people

who want to be in the model program than there is room in the

program.

The patients sued, on behalf of a class, relying on

Medicaid statutory language, id. § 1396n(c)(10), and arguing that

if New Hampshire set up a model program at all, Congress required

that the waiver program have at least as many slots as the number

of applicants, up to a limit of 200. They also argued that New

Hampshire did not fill even the available slots within a reasonable

time. Finally, they argued that the notices given to those on the

waiting list were inadequate.

The district court agreed that New Hampshire was mandated

by the Medicaid statute to create more slots in its model program

and also that notice was inadequate. It did not address the second

issue. We reverse the district court's ruling on the first issue

and remand the other two issues, vacating the notice ruling and the

injunction.
1 While the waiver program under § 1396n(c) is designed for

individuals who "require the level of care provided in a hospital

or nursing facility or intermediate care facility for the mentally

retarded," § 1396n(c)(1), some individuals who would be eligible

for the waiver program, including members of the plaintiff class,

are currently in private homes, covered either by private insurance

or personal funds. J. Perkins & R.T. Boyle, Addressing Long Waits

for Home and Community-Based Care Through Medicaid and the ADA, 45

St. Louis U. L.J. 117, 117 (2001) (describing individual cases).

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I.

Bonnie Bryson and Claire Shepardson have acquired brain

disorders (ABDs), which manifest before age sixty, are neither

congenital nor caused by birth trauma, and present "a severe and

life-long disabling condition which significantly impairs a

person's ability to function in society." N.H. Code Admin. R. Ann.

the plaintiff class they represent are being treated in a variety

of settings, from nursing homes to psychiatric hospitals to private

homes.1

Medicaid is an optional plan under which the federal

government, through the states, partially funds medical assistance

to needy individuals. See § 1396; Wilder v. Va. Hosp. Ass'n, 496

U.S. 498, 502 (1990). Not everyone is eligible for Medicaid-funded

treatment; to be eligible, an individual must have limited

resources and must fit into an eligibility category. For disabled

adults, the most common route to eligibility is receiving

Supplemental Security Income (SSI) on the basis of disability. See

§ 1396a(a)(10)(i)(II). Some states, including New Hampshire, also

elect to cover some medically needy individuals who are not poor
2 The defendants in this case are Donald Shumway, Commissioner

of the New Hampshire Department of Health and Human Services, which

applied for the Medicaid waiver, and Susan Fox, Director of

Developmental Services, which administers the waiver program. We

will refer to the two defendants collectively as "New Hampshire."

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enough to be covered by SSI. J. Perkins, Medicaid: Past Successes

and Future Challenges, 12 Health Matrix 7, 12 n.21 (2002); see

§ 1396a(a)(10)(C).

In 1993, New Hampshire2 requested federal approval to

provide home and community-based services for individuals with ABDs

under the Medicaid waiver provisions. Section 1915(c) of the Social

Security Act, 42 U.S.C. § 1396n(c), permits states to include in

their Medicaid plans non-medical services, such as case management,

habilitation services, and respite care. Id. § 1396n(c)(4)(B).

States must apply for a waiver and be approved in order to include

such services in their Medicaid plans. Id. § 1396n(c)(1). Programs

approved under this subsection are waived from many Medicaid

strictures, id. § 1396n(c)(3), such as the requirements that

programs be in place statewide, see id. § 1396a(a)(1), and that

medical assistance be made available to all individuals equally, see

id. § 1396a(a)(10)(B). Waivers are initially approved for three

years and may be re-approved for five-year periods. Id.

§ 1396n(c)(1). The waiver program is designed to allow states to

experiment with methods of care, or to provide care on a targeted

basis, without adhering to the strict mandates of the Medicaid

system.
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There are three primary types of home and community-based

waivers. The first type, at issue here, concerns the treatment of

individuals who would otherwise be treated in an institutional

setting such as a hospital or nursing home. See id. § 1396n(c); 42

C.F.R. §§ 440.180, 441.300-.302 (2002). The second type is for

individuals over sixty-five who would otherwise be in a nursing

home. See § 1396n(d). The third type targets children under age

five who have AIDS or are born dependent on drugs. See id.

§ 1396n(e). There are currently about 240 home and community-based

waiver programs nationwide. J. Perkins & R.T. Boyle, Addressing

Long Waits for Home and Community-Based Care Through Medicaid and

the ADA, 45 St. Louis U. L.J. 117, 126 (2001).

To participate in the waiver program, states must apply

to the federal Centers for Medicaid and Medicare Services (CMS).

42 C.F.R. § 430.25(e). The Administrator of CMS has the authority

to approve or deny requests, but must consult with the Secretary of

Health and Human Services (HHS) before denying a request. Id.

§ 430.25(f)(2)(ii).

In theory, the waiver plans are expenditure-neutral; the

average estimated per capita expenditure under the waiver plans must

not be more than the average estimated expenditure absent the waiver

program. § 1396n(c)(2)(D). In practice, the waiver programs may

be costly to the states, because even though the individuals served

by the waiver plan are no longer being served by nursing homes or
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other care facilities, other patients may take those nursing home

spots. Many patients not currently being served under Medicaid may

also apply for the waiver program. See Perkins & Boyle, supra, at

119. The states thus have a financial incentive to keep their

waiver programs small, or at least, to begin with small programs and

grow them incrementally.

New Hampshire applied for a model waiver, which differs

from regular waivers primarily in that model waivers, by HHS

regulation, may not serve more than 200 individuals at any one time.

42 C.F.R. § 441.305(b)(1). New Hampshire's model waiver request,

however, proposed to serve a far smaller number of individuals than

the 200 person maximum. The original waiver request proposed that

15 individuals be served in the first year (1993 - 1994), 26 in the

second year, and 37 in the third year. In 1996, New Hampshire

requested and HHS approved an amendment to the waiver to accommodate

74 individuals in the third year of the program instead of 37. The

State also requested a renewal of the waiver for five more years,

from 1996 through 2001; HHS approved this request in 1997. New

Hampshire initially requested funding for only 74 slots for each of

the five years of the waiver renewal, but in 1998 it requested, and

HHS approved, an amendment to the renewal, such that the program

would serve 77 individuals in the fifth year, 81 in the sixth year,

85 in the seventh year, and 89 in the eighth year. In August 2001,

New Hampshire requested an extension for the waiver, which HHS
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granted through January 2002. New Hampshire has since applied for

and was granted a five-year renewal of the waiver program, with an

increasing number of slots from 117 up to 130 over the five-year

period.

There have always been more applicants for home and

community-based ABD services in New Hampshire than there have been

available slots. The waiting list has ranged from 25 people in the

first year to a height of 87 in the 1997-1998 year.

It is undisputed that up until recently, some of the

approved waiver slots have not been filled. The parties differ as

to how many slots have historically gone unused, for how long and

for what reasons; furthermore, there is no agreement as to whether

there continues to be any unused waiver slots.

Bryson, Shepardson, and the plaintiff class have applied

for community-based services under the New Hampshire Home and

Community Based Waiver for Persons with Acquired Brain Disorders.

They have not received these services; New Hampshire instead has

placed them on a waiting list, where they remain.

II.

On December 2, 1999, Bryson and Shepardson sued the two

New Hampshire state officials, on behalf of themselves and all

others similarly situated, seeking injunctive and declaratory relief

pursuant to 42 U.S.C. § 1983. The suit challenged the defendants'
3 The plaintiffs' other five counts are as follows: Count I

alleged that the waiver program was insufficiently funded, relying

on §§ 1396a(a)(17), (19), and regulatory provisions; Count III

alleged a violation of the integration mandates of Title II of the

Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132, and

section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a) (2000);

Count IV alleged disability-based discrimination in violation of

Title II of the ADA and section 504; Count V alleged that the

standards by which the ABD waiver program was operated constituted

a due process violation; and Count VI restated the notice complaint

of Count VII as a due process violation.

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failure to provide home and community-based services under the model

waiver program to the plaintiff class afflicted with ABD.

The complaint pled seven distinct counts; only two counts

are relevant to this appeal.3 The first, Count II of the complaint,

alleged that under federal law, Medicaid services must be furnished

with "reasonable promptness" under § 1396a(a)(8) and that the New

Hampshire defendants were in violation of this provision. The

second, Count VII of the complaint, alleged that federal law

requires that the plaintiffs receive notice and the opportunity for

a hearing when they have been placed on a waiting list, id.

§ 1396a(a)(3), and that New Hampshire has not provided such notice.

On October 23, 2001, the District Court for the District

of New Hampshire granted the plaintiffs' motion for summary judgment

as to Count VII, the notice allegation. Bryson v. Shumway, 117 F.

Supp. 2d 78, 81 (D.N.H. 2001). The court found that § 1396a(a)(3),

which requires an opportunity for a fair hearing when a "claim for

medical assistance . . . is denied," is triggered when applicants

are placed on the waiting list for waiver services. Id. at 98.
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On December 10, 2001, the district court granted judgment

in favor of the plaintiffs on Count II, ruling that the

"[d]efendants have violated the reasonable promptness requirement

of the Medicaid Act" and requiring that they "request enough waiver

slots to serve the plaintiff class and to provide Medicaid funded

waiver services to Plaintiff class in a period not to exceed 12

months, absent extraordinary circumstances." Bryson v. Shumway, No.

99-558-M, at 5 (D.N.H. Dec. 10, 2001). This appeal followed.

III.

We review grants of summary judgment "de novo, construing

the record in the light most favorable to the nonmovant and

resolving all reasonable inferences in that party's favor."

Rochester Ford Sales, Inc. v. Ford Motor Co., 287 F.3d 32, 38 (1st

Cir. 2002). We review a district court's interpretation of a

statute de novo. Riva v. Massachusetts, 61 F.3d 1003, 1007 (1st

Cir. 1995).

Other rules govern the issue of statutory interpretation.

If the meaning of a statute is clear, we enforce that meaning.

Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.

837, 842-43 (1984). Here, the statute in question has been

interpreted by a federal administrative agency in a rule promulgated

through notice and comment. That interpretation is governed by the

second-level Chevron standard: if Congress has not spoken to the

question at issue, we may not substitute our own reading of the
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statute unless the agency's interpretation is unreasonable. Id. at

843-44.

A. Reasonable Promptness

The statute, 42 U.S.C. § 1396a(a)(8), requires that

"medical assistance . . . shall be furnished with reasonable

promptness to all eligible individuals." The plaintiffs contend

that New Hampshire's operation of the ABD waiver program violates

§ 1396a(a)(8) by failing to furnish the waiver services with

"reasonable promptness." They seek to enforce this provision

through 42 U.S.C. § 1983. The plaintiffs make alternative arguments

for why they believe that New Hampshire has failed to meet its

duties under § 1396a(a)(8).

1. Requirement of 200 Waiver Slots

Plaintiffs first argue that New Hampshire is required by

statute to request a waiver to accommodate at least 200 individuals.

They rely on statutory language governing waiver programs, which

states:

(c) Waiver respecting medical assistance requirement in

State plan: scope, etc.; "habilitation services" defined;

imposition of certain regulatory limits prohibited;

computation of expenditures for certain disabled

patients; coordinated services; substitution of

participants

. . . 

(10) The Secretary shall not limit to fewer than 200 the

number of individuals in the State who may receive home

and community-based services under a waiver under this

subsection.
4 At times, though, we use legislative history as a check to

confirm the correctness of our interpretation in very complex areas

of regulation. Cablevision of Boston, Inc. v. Pub. Improvement

Comm'n, 184 F.3d 88, 101 (1st Cir. 1999) ("[A] court should go

beyond the literal language of a statute if reliance on that

language would defeat the plain purpose of the statute . . . .").

Even were we to rely on the legislative history of § 1396n(c)(10),

as plaintiffs request, it would not require the conclusion that

§ 1396n(c)(10) was meant to mandate that waiver plans serve at

least 200 individuals.

Paragraph 1396n(c)(10), as originally written, stated that

"[n]o waiver under this subsection shall limit by an amount less

than 200 the number of individuals who may receive home and

community-based services." Omnibus Budget Reconciliation Act of

1987, Pub. L. No. 100-203, § 4118(b), 101 Stat. 1330-1, 1330-155.

The paragraph was amended to the current language the next year.

See Medicare Catastrophic Coverage Act of 1988, Pub. L. No. 100-

360, § 411(k)(10)(A), 102 Stat. 683, 794. The plaintiffs have

submitted no legislative history with regard to this change, and

there appears to be little discussion in the relevant committee

reports. See H.R. Rep. No. 100-105(I) (1987), reprinted in 1988

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§ 1396n(c)(10). Plaintiffs interpret this statute to require that

states requesting waivers design plans that accommodate at least 200

individuals, arguing that is the plain meaning of the statute itself

and the thrust of the surrounding legislative history. The core

statutory argument is that because the waiver programs must receive

the Secretary's approval, this 200-person minimum should be read as

a limit on both the state applying for the waiver as well as on the

Secretary. Plaintiffs argue that the states are restricted from

offering less than 200 slots and the Secretary is restricted from

approving less than 200 slots.

a. Plain Reading of the Statute

We turn first to the language of the statute itself. If

a statute is unambiguous, we use neither legislative history,4 Dep't
U.S.C.C.A.N. 803; H.R. Rep. No. 100-105(II) (1987), reprinted in

1988 U.S.C.C.A.N. 857; H.R. Conf. Rep. No. 100-661, at 269 (1988),

reprinted in 1988 U.S.C.C.A.N. 923, 1047.

The only legislative history the plaintiffs cite, that of the

1987 statute, see H.R. Conf. Rep. No. 100-495, at 760 (1987),

reprinted in 1987 U.S.C.C.A.N. 2313-1245, 2313-1506, is inapposite.

All we are left with is the simple fact that Congress altered the

language of paragraph 10 by striking language that supported the

plaintiffs' contentions. Even were we to construe the legislative

history, then, we would find that if it has any effect at all, it

is to bolster the interpretation that the statute in its current

form governs only the actions of the Secretary.

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of Hous. & Urban Dev. v. Rucker, 122 S. Ct. 1230, 1234 (2002), nor

administrative agency interpretation, Chevron, 467 U.S. at 842-43.

Neither the language nor the structure of § 1396n(c)(10)

supports plaintiffs' reading; the statute does not require

applications for state waiver programs to serve at least 200

individuals. The language of the paragraph, by its very terms,

governs only the Secretary's ability to deny approval of waiver

plans. See § 1396n(c)(10) ("The Secretary shall not limit

. . . ."). The statute does not purport to govern the behavior of

the states or the contents of the waiver plans themselves.

Moreover, the paragraph does not, by its terms, prevent the

Secretary from approving plans unless there are a certain number of

slots. It only governs the Secretary's actions when she or he is

acting to limit the content of waiver plans as to the number of

individuals to be served.

Comparing the language of § 1396n(c)(10) to the remainder

of § 1396n(c), which governs waiver services, makes this reading
5 This is also consistent with the language of § 1396n(c), the

title of which includes such subjects as "imposition of certain

regulatory limits prohibited," obviously a reference to paragraph

10.

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even more compelling. Some provisions of subsection (c) directly

govern the content of the waiver plans; these clearly state their

purpose in limiting the content of the plans directly. See id.

§ 1396n(c)(2) ("A waiver may not be granted under this subsection

unless . . . ."). By contrast, § 1396n(c)(10) does not contain such

language limiting the content of the plans themselves.

Other provisions of subsection (c), like (c)(10), operate

to prevent the Secretary from unduly restraining the state plans.5

For instance, the Secretary may not restrict "the number of hours

or days of respite care" provided under a waiver plan, id.

§ 1396n(c)(4), nor may he require that the waiver plan spend no more

money than the approved estimates as a condition of waiver approval,

id. § 1396n(c)(6). These provisions merely prevent the Secretary

from imposing conditions onto the waiver plans. Similarly,

§ 1396n(c)(10) restricts the Secretary's ability to limit the size

and funding of waiver plans. Read together, these provisions, like

paragraph 10, ensure that the states will be able to receive funding

for waiver plans up to a certain size and free from restrictions on

how much care is provided to each individual. They do not dictate

to the states the content of their waiver applications.
6 Our reading is also most consistent with another paragraph

of subsection (c), which plainly permits states to set limits on

the number of individuals served. Section 1396n(c)(4)(A) permits

waiver plans to limit the individuals served to those for whom the

state has determined that the amount of medical assistance under

the waiver will not exceed the amount that would be provided if the

waiver did not apply. This paragraph does not reference

§ 1396n(c)(10), nor does it restrict a state's ability to limit the

number of individuals served by waiver plans.

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Finally, it is evident that § 1396n(c) contemplates state

waiver plans with definite limits on the number of individuals

served. Paragraph 9 permits state plans to replace individuals who

die or become ineligible with other individuals "[i]n the case of

any waiver under this subsection which contains a limit on the

number of individuals who shall receive home or community-based

services." Id. § 1396n(c)(9). State plans, then, certainly have

the right to include a limit on the number of waiver slots they

request.6

This statute, § 1396n(c)(10), is most plausibly read as

limiting only the ability of the Secretary to impose such

restrictions, and not the ability of the states to propose or the

Secretary to approve waiver plans serving fewer than 200

individuals.

b. Administrative Deference

Even if there were doubt as to the plain meaning of

§ 1396n(c)(10) on its face, the administrative interpretation of HHS

does not support the plaintiffs' position. If Congress has not

spoken on the precise question at issue, we respect the statutory
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interpretation of the federal administrative agency given that

interpretative task, unless the interpretation is unreasonable.

Chevron, 467 U.S. at 842-44.

Congress has authorized HHS to interpret the statutes in

question and implement regulations in this area. 42 U.S.C. § 1302.

HHS has interpreted § 1396n(c)(10) through a regulation governing

model waivers, which decrees that the number of individuals served

under a model waiver program "may not exceed 200 recipients." 42

C.F.R. § 441.305(b). It is possible to read the regulation, which

permits no more than 200 recipients under a model waiver program,

and § 1396n(c)(10), which plaintiffs urge permits no fewer than 200

under any waiver program, to result in a scheme in which all model

programs must serve exactly 200 individuals. Nonetheless, that is

not the most likely reading. The regulation's use of the term

"exceed" indicates that HHS contemplates model waiver programs that

serve fewer than 200 individuals.

This conclusion is bolstered by the comments accompanying

the announcement of the final rule. HHS concluded that while

§ 1396n(c)(10) "could, arguably, be read to limit the actual number

of individuals who may receive model waiver services to no less than

200, . . . we believe that this reading is unsupportable." Medicaid

Program; Home and Community-Based Services and Respiratory Care for

Ventilator-Dependant Individuals, 59 Fed. Reg. 37,702, 37,711 (July

25, 1994).
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HHS's interpretation of this statute is certainly not

unreasonable. HHS reads § 1396n(c)(10) as allowing states to choose

the size of their waiver programs, rather than requiring that the

waiver programs be at least a certain size. This interpretation is

consistent with the agency's longstanding interpretation of the

waiver program. See Medicaid Program; Home and Community-Based

Services, 50 Fed. Reg. 10,013, 10,021 (Mar. 13, 1985) (stating that

HHS "believes that Congress intended to give the States maximum

flexibility in operating their waiver programs"). 

The policy reasons are obvious: states, and particularly

small states, may be discouraged from applying for model waiver

programs at all if the choices are a program serving 200 individuals

at the partial expense of the state, or not creating a model program

at all and providing only the standard Medicaid services. Rather,

Congress wished to encourage the states to pursue waiver programs,

so that the states would create the types of model programs

contemplated. Sympathetic as these plaintiffs are, the long-term

logic of their argument may lead to the constriction, not the

expansion, of these types of alternative programs. In sum, even

were we to find this statute ambiguous, the interpretation offered

by HHS is reasonable, given the structure and language of the

statute.

The Secretary has also interpreted this statute in a

different context. He has approved waiver plans that anticipate
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serving fewer than 200 individuals, such as the plan at issue here.

Because the approval process did not utilize formal procedures, it

may not be entitled to Chevron deference, see Christensen v. Harris

County, 529 U.S. 576, 587 (2000), but there remains the deference

owed agencies due to their "specialized experience." Skidmore v.

Swift & Co., 323 U.S. 134, 139 (1944); see United States v. Mead

Corp., 533 U.S. 218, 234-39 (2001) (applying Skidmore deference).

The Secretary has interpreted the statute to permit waiver plans

with fewer than 200 slots, and we defer to his expertise in the

construction and purpose of the statute.

2. Unfilled Waiver Slots

The district court rested its finding for the plaintiffs

on the ground we have rejected: that the state waiver plan must

serve at least 200 individuals. Bryson, No. 99-558-M, at 4.

Plaintiffs have, however, asserted a separate and distinct argument

alleging a violation of the "reasonable promptness" provision of

§ 1396a(a)(8). They argue that New Hampshire has failed to fill

even the number of individual waiver slots it has requested, and so

the plaintiff class members have not been furnished medical

assistance "with reasonable promptness." We first consider whether

there is an actionable claim.

a. § 1983 Cause of Action

There is liability against persons who act under color of

law to deprive individuals of "any rights, privileges, or immunities
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secured by the Constitution and laws" of the United States under 42

U.S.C. § 1983. This provision creates a cause of action for federal

statutory as well as constitutional rights, Maine v. Thiboutot, 448

U.S. 1, 4-8 (1980), including, in some circumstances, violations of

the Medicaid Act, Wilder, 496 U.S. at 524.

Not all violations of federal law result in a cause of

action under § 1983. "A plaintiff must assert the violation of a

federal right, not merely the violation of federal law." Blessing

v. Freestone, 520 U.S. 329, 340 (1997) (emphasis in original).

Moreover, a federal right must be "unambiguously conferred" in order

to support a cause of action under § 1983. Gonzaga Univ. v. Doe,

122 S. Ct. 2268, 2275 (2002).

Blessing set out a three-part test for guidance in

determining whether a statutory provision confers an enforceable

federal right. First, Congress must have intended that the

provision benefit the plaintiff. Second, the right must not be

"vague and amorphous." Third, the statute must unambiguously impose

a binding obligation on the states. Blessing, 520 U.S. at 340-41.

Ultimately, of course, this is an issue of congressional intent, and

the three tests are just a guide. Gonzaga, 122 S. Ct. at 2279

(Breyer, J., concurring). The statute satisfies the three tests as

to claims about unfilled waiver slots that are part of an approved

state Medicaid plan.
7 The parties advise us that it is not an easy matter to

determine the patients on the waiting list for whom slots are

available. It is not a matter, necessarily, of who is next on the

list. The slots opening up may be in one geographic location; a

particular patient may be in another. These are issues that can be

considered on remand.

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First, the statute, on its face, does intend to benefit

the plaintiffs. Section 1396a(a)(8) requires that state Medicaid

plans provide that medical assistance "shall be furnished with

reasonable promptness to all eligible individuals." This paragraph

is a part of the litany of procedural and substantive protections

which state Medicaid plans must provide, such as the opportunity for

a hearing, see § 1396a(a)(3), and safeguards against the disclosure

of private information, see id. § 1396a(a)(7). By its terms, it

benefits "eligible individuals." Id. § 1396a(a)(8). Those patients

who are on the waiting list and for whom slots are available7 are,

we think, "eligible" under the statute such that they are entitled

to reasonable promptness. See Boulet v. Celluci, 107 F. Supp. 2d

61, 77 (D. Mass. 2000) ("The cap on waiver services is simply a

constraint on eligibility."). The first prong of Blessing has been

met.

Second, the right conferred is not vague or amorphous.

"A statute is not impermissibly vague simply because it requires

judicial inquiry into 'reasonableness.'" Albiston v. Maine Comm'r

of Human Servs., 7 F.3d 258, 267 (1st Cir. 1993) (construing the

"reasonable promptness" provision of 42 U.S.C. § 602(a)(10)).
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Common law courts have reviewed actions for reasonableness since

time immemorial. See, e.g., 1 W. Blackstone, Commentaries *77

(analyzing the reasonableness of customs).

Finally, § 1396a(a)(8) does unambiguously bind the states.

The subsection mandates that state plans "must" provide that medical

assistance "shall" be provided with reasonable promptness. These

are not mere guidelines, but rather requirements which states must

meet under the Medicaid system.

One other circuit court has found that the reasonable

promptness provision of § 1396a(a)(8) provides a cause of action

under § 1983. See Doe v. Chiles, 136 F.3d 709, 719 (11th Cir.

1998); cf. Cospito v. Heckler, 742 F.2d 72, 81 n.14 (3rd Cir. 1984)

(interpreting § 1396a(a)(8) in a procedural due process context and

finding that "eligible patients have a legitimate claim of

entitlement to be able to avail themselves of Medicaid benefits").

While this Court has never before addressed this precise question,

we did uphold a § 1983 cause of action under the "reasonable

promptness" provision of the Social Security Act. Albiston, 7 F.3d

at 264 (finding that 42 U.S.C. § 602(a)(10) provides "reasonably

clear, judicially enforceable obligations directly on the

participating States").

The strictures of § 1396a(a)(8) should apply with no less

force to opt-in plans such as the waiver program. Once the waiver

plan is created and approved, it becomes part of the state plan and
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therefore subject to federal law; the waiver plans must meet all

requirements not expressly waived. See Doe, 136 F.3d at 714-15

(upholding a § 1983 cause of action under § 1396a(a)(8) as applied

to an optional program).

In sum, we find that there is a § 1983 cause of action

arising from the "reasonable promptness" provision of 42 U.S.C.

§ 1396a(a)(8) under the state model waiver plan as approved.

b. Factual Development

It is not clear to us, though, whether there is a live

controversy on this issue or, if so, what the dimensions of it are.

No facts have been developed on this point. New Hampshire claims

that there are no longer any unfilled waiver slots, while the

plaintiffs believe that the issue may continue to be a live one.

Even if there are currently unfilled waiver slots, we know nothing

about the history of each waiver slot and the process and procedure

of replacing individuals who held those slots.

When an individual ceases to use the waiver plan services,

there is necessarily a time gap while an individual on the waiting

list is chosen to take the unfilled slot and while services are made

available. Because of that lag in time, the fact that some slots

are unfilled may be consistent with New Hampshire diligently filling

the empty slots with reasonable promptness. It may also indicate

that New Hampshire is not being reasonably prompt in its provision

of medical assistance.
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The parties have stipulated that absent extraordinary

circumstances, ABD waiver services can be implemented within one

year from the time that an individual is found to be eligible. More

information is necessary in order to ascertain whether or not the

guarantee of reasonable promptness has been satisfied. We remand

this aspect of plaintiff's claim to the district court.

B. Notice

42 U.S.C. § 1396a(a)(3) requires that state Medicaid plans

"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." See also 42 C.F.R. § 431.220(a)(1) (mirroring the

language of § 1396a(a)(3)). State plans must also notify applicants

of the right to obtain a hearing and the method of obtaining one

when the applicant first applies to Medicaid or when any action is

taken which affects the applicant's claim. 42 C.F.R. § 431.206(b)-

(c). The specific contents of the notice are governed by § 431.210.

Overall, HHS has made clear that "[t]he hearing system must meet the

due process standards set forth by Goldberg v. Kelly, 397 U.S. 254

(1970)." § 431.205(d). The defendants do not contest that § 1983

may be used to enforce these notice provisions, so we assume that

it may.

Plaintiffs allege that New Hampshire has violated their

right to notice by failing to notify applicants of their right to
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a hearing when they were notified of their eligibility and placed

on a waiting list. The district court agreed, granting summary

judgment to the plaintiffs on this count and holding that "a finding

of eligibility coupled with an indefinite deferral of services

constitutes a denial of services," thereby triggering the notice

requirement under § 1396a(a)(3). Bryson, 177 F. Supp. 2d at 97.

While applicants were notified of their placement on the waiting

list, the notifications often did not contain information concerning

the right to request a hearing or the method of obtaining one.

As the district court noted, its ruling on notice depended

to a certain extent on its view of whether New Hampshire had to

create slots for all applicants. Id. We have negated that view.

There is also a significant question about the precise purpose of

a hearing under the approved plan. It is one thing to have a

hearing if New Hampshire is obligated to create slots for up to 200

individuals, as the district court ruled. It is another to

contemplate a hearing if there are no available slots and there is

no requirement to give the first available slot to the next person

on the list. It is yet another thing if there is an available slot

and the sole issue, applying pre-set criteria for priority status,

is who on the waiting list should be placed in that slot.

New Hampshire has said that it has since modified its

system of eligibility notice to conform to the statutory and

regulatory requirements. There is thus a danger that the issue of
8 If mootness evolves upon appeal, "the judgment below

normally is vacated with directions to dismiss the complaint."

City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 288 n.9

(1982). Mootness may evolve during the course of a case for a

variety of reasons, including the provision of relief by the

defendant. See, e.g., Honig v. Students of the Cal. Sch. for the

Blind, 471 U.S. 148 (1985); Deposit Guar. Nat'l Bank v. Roper, 445

U.S. 326 (1980); Commissioner v. Shapiro, 424 U.S. 614, 622 n.7

(1976).

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notice is not a live one. See Powell v. McCormack, 395 U.S. 486,

495-97 (1969). A moot issue does not meet the "case" or

"controversy" requirement of the Constitution. U.S. Const. art.

III, § 2; Liner v. Jafco, Inc., 375 U.S. 301, 306 n.3 (1964). 

Mootness must be considered even if ignored by the parties

themselves.8 St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S.

531, 537 (1978).

Given the context of New Hampshire's recent claim that it

has modified its notification procedure and is now in accord with

statutory and constitutional requirements, we think it better to

vacate the district court's ruling. We remand this issue to the

district court for further factual findings. If New Hampshire's

current notice system is adequate, then this count should be

dismissed. We are optimistic that if further notice issues remain,

the parties will work out the matter by agreement.

IV.

For the reasons stated above, we reverse the district

court's ruling that the waiver plan must include 200 slots, vacate
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the notice ruling and the injunction, and remand the other two

issues.