# United Stat es Court of Appeals For the First C ircuit

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 , Atto rney General, and Suzanne M. Gorman , Senior Assistant Attorney General, were on brief, for appellants.

October 15, 2002-2- LYNCH, Circuit Judge . Plaintiffs suffer f rom 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 programNew Hampshire has established under a Medicaid waiver approvedby 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 roo m in the program. The pat ients 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 a lso 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 andalso that notice was inadequate. It did not address the second issue. We reverse the district court's ruling on the first issue andremandthe other two issues, vacating the notice ruling and the injunction.1 While the waiver prog ram under § 1396n(c) is designed for

individuals who "require the level of care provided in a hospital or nursing facility or intermediate care facilityfor the mentally retarde d," § 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). -3- I. Bonnie Bryson and Claire Shepardson have acquired brain disorders (ABDs), which manifest b efor e 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 Medicaidis an optional plan under whi ch the federal government, through the states, partiallyfunds 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 tr eatm ent; 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 NewHampshire, also elect to cover some medically needy individuals who are not poor2 The defendants in this case are DonaldShumway, Commissioner

of the New Hampshire Department of Health and Human Services, which appliedfor 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." -4- enough to be covered bySSI. J. Perkins, Medicaid: Past Successes andFuture Challenges , 12 Health Matrix 7, 12 n.21 (2002); see § 1396a(a)(10)(C).

In 1993, New H ampshi re 2 requested federal approval to provide home and community-basedservices for individuals with ABDs under the Medicaid waiver provisions. Section 1915(c) of the Social Secu rity Ac t, 42 U.S.C. § 1396n(c), permits states to include in their Medicaid plans non-medical services, such as case management, habilitation services, and resp ite c are. Id. § 1396n(c)(4)(B). States must applyfor a waiver and be approved in order to include such services in their Medicaid plans. Id. § 1396n(c)(1). Programs approvedunder this subsection are waived from many Medicaid strictur e s, id. § 1396n(c)(3), such as the requirements that programs be in place statewide , see i d. § 1396a(a)(1), and that medical assistance be made available to all individuals equally, see id. § 1396 a(a)(10 )(B) . Waivers are initially approved for three y ears and may be re-approved for five-year periods. Id. § 1396n(c)(1). The waiver program is desig ned to allow states to

ex periment with methods of care, or to provide care on a targe te d basis, without adhering to the strict mandates of the Medicaid system.-5- There are three primarytypes 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 fo r individuals over si xty- five who would otherwise be in a nursing home. See § 1396n(d). The t h ird type targets children under age five w ho have AIDS or are born dependent on drugs. See id. § 1396n(e). There are currentlyabout 240 home and community-based waiver progra ms nationwide. J. Perkins & R.T. Boyle, Addressing Long Waits for Home and Community-Based C are Through Medicaid and the ADA , 45 St. Louis U. L.J. 117, 126 (2001).

To p articipate in the waiver program, states must app l y to the federal Centers for Med icaid a nd 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 reque st. 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 p rograms may be costlyto the states, because even though the individuals served bythe waiver plan are no l o nger being served by nursing homes or-6-

other care facilities, other patients may tak e those nursing home spots. Many patients not currently being servedunder Medicaid may also apply for the waiver program. See Perkins & Boyle, supra , at 119. Th e states thus have a financial incentive to keep their waiver programs small, or at least, to begin with small programs and grow them incrementally.

NewHampshire applied for a model waive r, which differs fromregular waive rs p rimarily 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 secondyear, and 37 in the third year. In 1996, New Hampshire requestedand 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 r enew al of the waiver for five more years, from19 96 through 2001; HHS approved this request in 1997. New Hampshire initially requestedfunding for only74 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 progra m wouldserve 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, Ne w Hampshire requested an extension for the waiver, which HHS-7-

grantedthrough January 2002. New Hampshire has since applied for andwas granted a five-year renewal of the waiver program, with an increasing number of slots from 117 up to 13 0 over th e five-year period. There have always been more applicants for ho me an d community-basedABD services in New Hampshire than there have been available slots. The waiting list has rangedfrom25 people in the first year to a height of 87 in the 1997-1998 year.

It is undisputed that up unt i l recently, some of the approvedwaiver slots have not been filled. The parties differ as to how many slots have historically gone unu sed, 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, andthe plaintiff class have applied for co mmuni ty-based services under the New Hampshire Home and Commu nity Based Waiver for Persons with Acquired Brain Disorders. Theyhave not received these ser vices; New Hampshire instead has placed them on a waiting list, where they remain. II. On December 2, 1999, Bryson and Shepardson sued the two NewHampshire state officials, on behalf o f themselves and all others similarly situated, seeking injunctive and declaratoryrelief pursuant to 42 U.S.C. § 1983. The suit challenged the defendants'3 The plaintiffs' other five counts are as fo llow s: Count I

allegedthat the waiver program was insufficiently funded, relying on §§ 1396a(a)(17), (19), and regulatory provisions; C ount III allegeda violation of the integration mandates of Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 1 213 2, and section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a) (2000); Count IV alleged disability-based discrimination i n vi olation 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. -8- 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, allegedthat under federal law, Medicaidservices must be furnished with "reas o nable promptness" under § 1396a(a)(8) and that the New Hampshire defendants w e re in violation of this provision. The second, Count VII of t he complaint, alleged that federal law requires that the plaintiffs receive notice andthe opportunity for

a hearing when they h ave 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 opportunityfor a fair hearing when a "claim for medical assistance . . . is den ied," is triggered when applicants are placed on the waiting list for waiver services. Id. at 98.-9- 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 MedicaidAct" and requiring that they "request enough waiver slots to serve the plaintiff class and to provide Medica id fund ed waiver services to Pla intiff 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 reviewgrants of summary judgment "de novo, construing the re cord in the light most favorable to the nonmovant a n d resolving all reasonable inferences in t hat party's favor." Rochester Ford Sales, Inc. v. Ford Motor Co. , 287 F.3d 32, 38 (1st Cir. 2002). We review a district co urt's i nterpretation of a statute de novo. Riva v. Massachusetts , 61 F.3d 100 3, 1007 ( 1st Cir. 1995).

Other rules govern the issue of statutoryinterpretation. If the meaning of a statute is clear, we enforce that meaning. Chevr on U.S.A., Inc. v. Natural Res. Def. Council, Inc. , 467 U .S . 837, 842-43 (1984). Here, the statu te in q uestion has been interpretedby a federal administrative agency in a rule promulgated through notice and comment. That interpretation is governed by the second-level Chevron standard: if Co ngress has not spoken to the question at issue, we may no t s ubstitute our own reading of the-10-

statute unless the agency's interpretation is unreasonable. Id. at 843-44. A. Reasonable Promptness

The statute, 42 U.S.C. § 1396a(a)(8 ), r equires that "medical assistance . . . shall be f urni shed with reasonable promptness to all eligible individuals." The p laintiffs contend that New Hampshire's operatio n of the ABD waiver program violates § 1396a(a)(8) by f aili ng to furnish the waiver services with "re asona ble promptness." They seek to enforce this provision through 42 U.S.C. § 1983. The plaintiffs make alternative arguments for why th ey belie ve 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. Theyrely o n statutory language governing waiver programs, which states: (c) Waiver respecting m e dical assistance requirement in

State plan: scope, etc.; "habilitation services" defined; imposition of certai n regulatory limits prohibited; computation of expenditures for c ertain disabled patients; coordinated se r vices; substitution of participants

. . . (10) The Secretary shall not limit to fewer than 200 the number of individuals in the State who may r eceive home andc ommunity-based services under a waiver under thi s subsection.4 At times, though, we use l egislative history as a check to

confirmthe correctness of our interpretation in verycomplex areas of regulation. Cablevision of Bo ston, Inc. v. Pub. Improvement Comm'n , 184 F.3d 88, 101 (1st Cir. 1999) ("[A] court should go beyondthe 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 th a t § 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-basedservices." 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 submitte dno l egislative history with regard to this change, and there appears to be li ttl e discussion in the relevant committee reports. See H.R. Rep. No. 100-105(I) (1987), reprinted in 1988 -11- § 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

an dthe t hrust of the surrounding legislative history. The core statutoryargument 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 arg ue that the states are restricted from of fering less than 200 slots and the Secretary is restricted from approving less than 200 slots.

a. Plain Reading of the Statute

We t urn fir st to the language of the statute itself. If

a statute is unambiguous, we use neither legislative history, 4 Dep'tU.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), reprintedin 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 suppo rted 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. -12- 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 p laintiffs' reading; the statute does not require applications for state waiver progra ms t o serve at least 200 individuals. The l anguage of the paragraph, by its very terms, governs only the Secretary's ability to denyapp roval of waiver pl ans. See § 1396n(c)(10) ("The Secretary shall not limi t

. . . ."). The statute does not purport to govern the behavior of the states or th e conte nts of the waiver plans themselves. Moreover, the paragraph does not, by its terms, prevent t h e Secretaryfrom approving plans unless there are a certain number of slots. It on l y 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 wai ver ser vices, makes this reading5 This is also consistent with the language of § 1396n(c), the

title of which includes such subjects as "im position of certain regulatory limits prohibited," obviously a reference to paragraph 10. -13- even more compelling. Some provisions of sub s ection (c) directly govern the content of the waiver plans; these clearly state thei r purpose in limiting the content of the plans directly. See id. § 1396n(c)(2) ("A waiver may not be g ranted 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 Fo r insta nce, the Secretary may not restrict "the number of hours

or days of respi te care " provided under a waiver plan, id. § 1396n(c)(4), nor may he require that the waiver plan spend no more moneythan the approved estimates as a condition of waiver approval, id. § 1396n(c ) (6). These provisions merely prevent the Secretary fromimposing conditions onto the waiver plans. S imila rly, § 1396n(c)(10) restricts the Secretary's ability to limit the size andfunding 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 fromrestrictions on howmuch 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 parag raph

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 servedto those for whom the state has determined that the amount of medical as sistan ce 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. -14- 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 i ndividu als "[i]n the case of anywaiver under this subsec tion wh ich contains a limit on the number of individua ls wh o shall receive home or community-based services." Id. § 1396n(c)(9) . Stat e plans, then, certainly have the ri g ht to include a limit on the number of waiver slots they request. 6 This statute, § 1396n (c)(10), is most plausibly read as limi ting only the ability of the Secretary to impose such restrictions, and not the ability of the states to propose or t he Secretaryto approve waiver plans servin g fewer than 200 individuals. b. Administrative Deference

Ev en if t here were doubt as to the plain meaning of § 1396n(c)(10) on its face, the administrative interpretation of HHS does not su pport the plaintiffs' position. If Congress has not spoke n on the precise question at issue, we respect the statut or y-15-

interpretation of the federal administrative agency given that interpretative task, unless the interpretatio n is unreasonable. Chevron , 467 U.S. at 842-44.

Congress has authorizedHHS to interpret the statutes in question and implement regulations in this area. 42 U.S.C. § 1302. HHS has in terpr eted § 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 rec ipients." 42 C.F.R. § 441.305(b). It is possible to read the regulation, which permits no more than 200 rec ipients 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. Th e regula tion'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. H HS conc luded that while § 1396n(c)(10) "could, arguably, be readto 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 RespiratoryCare for Ventilator-Dependant Individuals, 59 Fed. Reg. 37,702, 37,711 (July 25, 1994).-16- HHS's in ter pretation 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. Se e Med icaid Program; Home and Community-Based Services, 50 Fed. Reg. 10,013, 10,021 (Mar. 13, 1985) (stating that HHS "b elie ves 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 d iscouraged 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 andproviding only the standard Medicaid services. Rather, Congress wishedto encourage the states to pursue waiver programs,

so tha t the s tates would create the types of model programs contemplated. Sympathet ic as these plaintiffs are, the long-term logic of their argument may lead to th e const riction, not the expansion, o f these types of alternative programs. In sum, even

were we to find this statute ambiguous, the interpretation offered byHHS is reason able, given the structure and language of the statute. The Secr e tary has also interpreted this statute in a di fferent context. He has approved waiver plans that anti cipat e-17-

serving fewer than 200 individuals, such as the plan at issue here. Because the approval process did not utilize formal procedures, it maynot be entitled to Chevron deference, see Christensen v. Harris County , 529 U.S. 576, 587 (2000), but there remains the deference owedagencies due to their "specialized experience." Sk i dmore v. Swift & Co. , 323 U.S. 134, 139 (1944); see Uni t ed States v. Mead Corp. , 533 U.S. 218, 234-39 ( 2001) (applying Skidmore deference). The Secretary has interpre ted the statute to permit waiver plans with fewer than 200 slots, and w e 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 th e g round we have rejected: that the state waiver plan must

serve at least 200 individuals. Bryson , N o. 99-5 58-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 Hamps hire has failed to fill

even the number of individual waiver slots it has requested, and so the plaintiff class members have not been furnished medica l 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 lawto deprive individuals of "any rights, privileges, or immunities-18-

securedby the Constitution andlaws" of the United States under 42 U.S.C. § 1983. This provision creates a cause of action for federal statutoryas 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 federa l law r esult in a cause of action under § 1983. "A plai n tiff must assert the violation of a federal right , not merely the violation of federal law ." Blessing

v. Freestone , 52 0 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 § 198 3. Gonzaga Univ. v. Doe , 122 S. Ct. 2268, 2275 (2002).

Blessing set out a three-part test for guidance i n determining whether a statutor y prov ision confers an enforceable federal right. First, Congr e ss must have intended that the provision benefit the pl aintiff. 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 test s are jus t 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. -19-

First, the stat u te, on its face, does intend to benefit the plaintiffs. Section 1396a(a)(8) requires that state Medicai d plans provide that medical assista n ce "shall be furnished with reasonable promptness to all eligible individuals." This paragraph is a part of the litany of procedural and substantive pr otectio ns 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, se e id. § 1 396a(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 available 7 are,

we think, "eligible" under the statute such that they are entitled to reasonable promptness. See Boulet v. Celluci , 107 F. Su pp. 2d 61, 7 7 (D. Mass. 2000) ("The cap on waiver services is simply a constraint on eligibility."). The first prong of Blessing has been met. Second, t he right conferred is not vague or amorphous. "Astatute is not impermissibly vague s imply because it requires judicial inquiry into 'reasonableness.'" Albiston v. Maine Comm'r of Human Ser vs. , 7 F. 3d 258, 267 (1st Cir. 1993) (construing the "reasonable promptness" provision of 42 U.S .C. § 602(a)(10)).-20-

C ommon law courts have reviewed actions for reasonableness since time i mmemorial. See, e.g. , 1 W. Blackstone, Commentaries *77 (analyzing the reasonableness of customs).

Finally, § 1396a(a)(8) does unambiguouslybind the states. The subsection mandates that state plans "must" provide that medical assistance "sha ll" 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 f ound that the reasonable prompt ness pr ovision of § 1396a(a)(8) provides a cause of action under § 19 83. See Doe v. Chiles , 136 F.3d 709, 719 (11th Cir. 1998); cf. Cospito v. Heckler , 742 F.2d 72, 81 n.14 (3rdCir. 1984) (interpreting § 1396a(a)(8) in a procedural due process context and fi n ding 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 c ause of action under the "reasonable promptness" provision of the Social Security Act. Albiston , 7 F.3d at 264 (find ing tha t 42 U.S.C. § 602(a)(10) provides "reasonably clear, judicially enforceable obligations dir e ctly on the participating States").

The strictures of § 1396a(a)(8) shouldapply 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-21-

therefo re subject to federal law; the waiver plans must meet all requirements not expressly waived. See Doe , 136 F.3 d 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 "r eason able 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 controversyon this issue or, if so, what the dimensions of it are. No facts have been developed on this poi nt. New Hampshire claims that there are no longer any unfill ed waiv er slots, while the plaintif fs believ e that the issue may continue to be a live one. Even if there are currently unfilledwaiver 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 necessarilya time gap while an individual on the waiting list is chosen to take the unfilled slot andwhile services are made available. Beca u se 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 al so indi cate that NewHampshire is not being reasonably prompt in its provision of medical assistance.-22- The part i es have stipulated that absent extraordinary circumstances, ABD wai v er 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 ascerta in whether or not the guarantee of reasonable promptness has been satisfied. W e 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 i n dividual whose claim for medical assistance unde r 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 heari n g and the method of obtaining one when the applicant first applies to Medicaid or when anyaction 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 maybe used to enforce these notice pro visions, so we assume that it may. Plaintiffs allege that New Hampshire has violate d their right to notice by failing to n otify applicants of their right to-23-

a hearing when they were notified of their el igibili ty and placed

on a waiting list. The district court agreed , grant ing summary judgment to the plaintiffs on this count and holding that "a finding

o f eligibility coupled with an indefinite deferral of services constitutes a denial of s ervices," thereby triggering the notice requirement under § 1396a(a)(3). Bryson , 177 F. Supp. 2d at 97. Whil e appli cants 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 exten t on its view of whether New Hampshire had to create slots for all applicants. Id. We have negated that view. There is also a sign ificant question about the precise purpose of

a hearing under the approved plan. It i s one thing to have a hearing if New Hampshire is obligated to create slots for up to 200 indivi duals, 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 andthe sole issue, applying pre-set criteria for priority status, is who on the waiting list should be placed in that slot.

Ne wHampshire has said that it has since modified it s systemof eligibility notice to conform to the s tatu tory and regulatoryrequirements. There is thus a danger that the issue of8 If mootness evolves upon appeal, "the judgment below

normallyis vacated with directions t o di smiss 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 va rietyof reasons, including the provision of relief by t h e 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). -24- notice is not a live one. See Powell v. McCo rmack , 395 U.S. 486, 495-97 (1969). A moot issue does not meet the "case" or "controversy" requirement of the Constitutio n . 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 t he part ies 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 ha s modif ied its notification procedure and is now in accord with statut o ryand 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 N ew Hamp shire's current noti ce 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 dist rict court's ruling that the waiver plan must include 200 slots, vacate-25-

the notice ruling and the injunction, and re mand th e other two issues.