33 F. 3d 600 - Wood v. R Tompkins

Plaintiffs-Appellees Randy and Diane Wood initiated this action on behalf of themselves, their minor son Evan, and all parents and children in the State of Ohio who have applied for admission to, or are participating in, the "Medically Fragile Waiver" program administered by Defendant-Appellant, the director of Ohio's Department of Human Services.1 Plaintiffs claim that the director's administration of the waiver program violates various provisions of the Medicaid Act. They also allege that the director violated their substantive and procedural due process rights under both the United States and Ohio Constitutions, and under Ohio statutory law.

This is an interlocutory appeal from the denial of Defendant's motion to dismiss. The issue before us is whether Plaintiffs have a private right of action under 42 U.S.C. Sec. 1983 for the alleged Medicaid Act violations, in light of the Supreme Court's holding in Suter v. Artist M., --- U.S. ----, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992). We affirm in part and reverse in part, finding that some of the relevant Medicaid Act regulations give rise to a private right of action.

Medicaid is a cooperative federal-state program through which the federal government offers financial assistance to participating states that provide medical care to needy individuals. Although participation is voluntary, states choosing to receive federal Medicaid funds must comply with the requirements of the Medicaid Act and the regulations promulgated by the Secretary of Health and Human Services (HHS). Ohio is a participating state.

Specific provisions of the Medicaid Act, 42 U.S.C. Secs. 1396a(a)(10)(A)(ii)(IV) and 1396n(c), allow participating states to apply to the Secretary of HHS for a waiver of various requirements, in order that Medicaid funds may be used to provide home and community-based health services for individuals who, but for the waiver, would require institutional care.2 This sort of waiver saves both the state and the federal government money, because home care is often less expensive than institutional care. However, the Secretary may not waive any requirements that protect the well-being of Medicaid recipients. To the contrary, a state cannot receive a waiver unless it provides "assurances satisfactory to the Secretary" that its waiver plan includes "necessary safeguards ... to protect the health and welfare of individuals" receiving home care. 42 U.S.C. Sec. 1396n(c)(2)(A). Once a waiver is granted, the Secretary is required to monitor the implementation of the waiver programs to ensure that all of the requirements are being met, and to terminate any noncomplying waiver. Sec. 1396n(f)(1).

In 1989, Ohio applied for, and received, a waiver pursuant to Secs. 1396a(a)(10)(A)(ii)(VI) and 1396n(c), in order to provide home care to Medicaid recipients who would otherwise be institutionalized. The result is Ohio's "Medically Fragile Waiver" program.3 See O.A.C. Secs. 5101:3-39-01 et seq., and 5101:1-39-65, 93 and 95.

Plaintiffs allege that Evan Wood, now five years old, suffers from such severe mental and physical disabilities that he requires 24 hour a day nursing assistance.4 Since July 1990, Evan has been cared for at his parents' home. Until August 1992, a private health insurance policy paid for Evan's medical and nursing services. But on August 1, 1992, all private insurance for Evan terminated.

In anticipation of this termination, the Woods applied in February 1992 to Ohio's Department of Human Services for a Medically Fragile Waiver. On May 1, 1992, the director notified the Woods that Evan would not be entered into the waiver program for the sole reason that "they would not accept the number of hours [of skilled nursing services] approved by the program." The Woods appealed.

On July 1 and July 27, 1992, the Woods appeared at two administrative hearings. They attempted to introduce evidence showing that Evan required a minimum of 16 hours of nursing care per day, and that this level of care would cost much less than if Evan had to go to a hospital. The Woods allege, however, that the hearing officer refused to admit this evidence on the ground that the director had imposed a statewide cap, under which Evan could receive only 10 to 11 hours per day of nursing services.

The Woods allege that the statewide cap is not based on any sort of evaluation of the medical needs of the individual waiver program recipients, that it puts all of the waiver program recipients at risk, and that, as implemented, it violates several provisions of the Medicaid Act and the regulations promulgated thereunder. In particular, their complaint alleges violations "including, but not limited to the following provisions:" 42 U.S.C. Secs. 1396a(a)(3), 1396a(a)(8), 1396a(a)(10)(A)(ii), 1396a(a)(17), and 1396a(a)(19); 42 C.F.R. Secs. 431.12, 431.18, 440.230, and 441.300 et seq. They further allege that Defendant's conduct was arbitrary and unreasonable in violation of their substantive due process rights under the United States Constitution, and that the administrative hearings were a sham, violating their procedural due process rights under both the federal and state constitutions, and violating Ohio Revised Code Chapter 5111.

On July 30, 1992, Plaintiffs filed this action in the Hamilton County Court of Common Pleas. Defendant promptly removed the case to the district court. On February 1, 1993, Defendant filed a motion to dismiss, or in the alternative, for summary judgment. In this motion, Defendant's primary argument was that the relevant Medicaid provisions did not give rise to a Sec. 1983 private right of action.5 On March 17, the court heard oral argument, and on March 31, it granted in part and denied in part Defendant's motion to dismiss.

The claims that the court dismissed are not before the panel on appeal.6 As for the claims not dismissed, the court did not so much as mention most of the Medicaid Act provisions that, according to Plaintiffs' Amended Complaint, Defendant allegedly violated.7 Instead, the court focussed most of its attention on provisions that Plaintiffs did not discuss in their Amended Complaint, namely 42 U.S.C. Secs. 1396n(c)(2) and 1396n(f)(1).8 Ultimately, the court addressed only four provisions: 42 U.S.C. Secs. 1396n(c)(2) and 1396n(f)(1), and 42 C.F.R. Secs. 441.302 and 441.303(f)(1). The court held that these four provisions created one or more rights that are actionable under Sec. 1983.9 At Defendant's request, the court certified for interlocutory appeal the question of the existence of the private right of action under Sec. 1983. On June 16, 1993, we granted Defendant's petition for interlocutory appeal.10

The only issue certified for interlocutory appeal is whether the relevant statutes give rise to rights that are enforceable under Sec. 1983.11 The parties have also briefed the issues of Randy and Diane Woods' standing to bring this suit, and the court's refusal to dismiss Plaintiffs' various due process claims on the pleadings. These questions were not certified for appeal, and we decline to address them at this time.12 Defendants have also briefed the merits of the case, but it would be premature for us to address them at this stage of the litigation.

When reviewing an interlocutory appeal arising from a district court's denial of a 12(b)(6) motion to dismiss, "the appellate court has no authority to review disputed questions of fact. Therefore, our review of the district court's decision is limited to pure questions of law." Foster Wheeler Energy Corp. v. Metropolitan Knox Solid Waste Auth., Inc., 970 F.2d 199, 202 (6th Cir.1992) (citations omitted). We review pure questions of law de novo. See, e.g., Waxman v. Luna, 881 F.2d 237, 240 (6th Cir.1989).

42 U.S.C. Sec. 1983 provides a private cause of action for "the deprivations of any rights, privileges, or immunities secured by the Constitution and laws" of the United States. Ever since Maine v. Thiboutot, 448 U.S. 1, 4, 100 S.Ct. 2502, 2504, 65 L.Ed.2d 555 (1980), the Supreme Court has held that Sec. 1983 provides a private cause of action for violations of federal statutes as well as the Constitution. The coverage of Sec. 1983 is to be "broadly construed." Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 105, 110 S.Ct. 444, 447-48, 107 L.Ed.2d 420 (1989). The Court has recognized only two exceptions under which statutory violations are not actionable:

A plaintiff alleging a violation of a federal statute will be permitted to sue under Sec. 1983 unless (1) "the statute does not create enforceable rights, privileges, or immunities within the meaning of Sec. 1983," or (2) "Congress has foreclosed such enforcement of the statute in the enactment itself."

Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508, 110 S.Ct. 2510, 2517, 110 L.Ed.2d 455 (1990) (quoting Wright v. Roanoke Redevelopment and Housing Authority, 479 U.S. 418, 423, 107 S.Ct. 766, 770, 93 L.Ed.2d 781 (1987)).

To determine whether the first of these two exceptions applies, the Court has developed a three part test:

(1) Was the provision in question intended to benefit the plaintiff?

(2) Does the statutory provision in question create binding obligations on the defendant governmental unit, rather than merely expressing a congressional preference? and

(3) Is the interest the plaintiff asserts specific enough to be enforced judicially, rather than being "vague and amorphous"?

Wilder, 496 U.S. at 509, 110 S.Ct. at 2517; Golden State, 493 U.S. at 106, 110 S.Ct. at 448. The plaintiff bears the burden of proving that this exception does not apply. Golden State, 493 U.S. at 106, 110 S.Ct. at 448.

As for the second of the exceptions, the only way Congress forecloses Sec. 1983 enforcement is by "providing a comprehensive enforcement mechanism for protection of a federal right." Id. Mere availability of administrative protections is not sufficient. Id. "Rather, the statutory framework must be such that allowing a plaintiff to bring a Sec. 1983 action would be inconsistent with Congress' carefully tailored scheme." Id. at 107, 110 S.Ct. at 449. "We do not lightly conclude that Congress intended to preclude reliance on Sec. 1983 as a remedy for the deprivation of a federally secured right." Id. The defendant bears the burden of proving that this exception applies. Id.

In Wilder, the Court applied this test to the Boren Amendment to the Medicaid Act, 42 U.S.C. Sec. 1396a(a)(13)(A). The Boren Amendment requires that participating states must reimburse health care providers according to rates that a "State finds, and makes assurances satisfactory to the Secretary, are reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities." Sec. 1396a(a)(13)(A). The Court held that this statute did create rights that are enforceable under Sec. 1983 by health care providers. First, "[t]here can be little doubt that health care providers are the intended beneficiaries of the Boren Amendment." 496 U.S. at 510, 110 S.Ct. at 2517-18. Second, "[t]he Boren Amendment is cast in mandatory rather than precatory terms." Id. at 512, 110 S.Ct. at 2518-19. Third, although the Amendment contained a flexible "reasonableness" standard, "the statute and regulation set out factors which a State must consider in adopting its rates," and "reasonableness" was to be measured "against the objective benchmark of an 'efficiently and economically operated facility.' " Id. at 519, 110 S.Ct. at 2523. Consequently, even though "there may be a range of reasonable rates," the obligation to set rates that are reasonable was sufficiently particularized to be judicially enforceable. Id. at 520, 110 S.Ct. at 2523. Finally, the Court found that the Medicaid Act's administrative remedy authorizing the Secretary of HHS to withhold approval of a state plan, or to cut off federal Medicaid funds, was not sufficiently comprehensive to foreclose a private right of action under Sec. 1983. Id. at 522-23, 110 S.Ct. at 2524-25.

In Suter v. Artist M., --- U.S. ----, ----, 112 S.Ct. 1360, 1363, 118 L.Ed.2d 1 (1992), the Supreme Court discussed whether a provision of the Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. Sec. 671(a)(15), confers a Sec. 1983 private right of action.13 The respondents in Suter claimed that the State of Illinois violated this statute by failing to make reasonable efforts to maintain abused or neglected children in their homes, as required under the plan that Illinois submitted to the Secretary for approval. Id. at ----, 112 S.Ct. at 1368. The Court found that the statute did not define the term "reasonable efforts." Id. In contrast, the statute and regulations at issue in Wilder provided detailed factors to be used in determining whether rates were or were not "reasonable." Id. Therefore, while the statute at issue in Wilder imposed a particularized duty on the state, the "reasonable efforts" requirement in Suter imposed only an amorphous "generalized duty" on the state. Id. at ----, 112 S.Ct. at 1370.14

Although the Suter Court did not explicitly run through all of the parts of the Wilder/ Golden State test, the Court's holding was in complete accord with Wilder. The key to Suter's holding was that the statute's "reasonable efforts" requirement was simply too vague, and left too much to the discretion of participating states, to create an enforceable right. Id. at ----, 112 S.Ct. at 1368. Thus, the requirement could not pass muster under the third prong of the Wilder test.

Nevertheless, the Suter dissent remarked that "the Court's conclusion was plainly inconsistent with this Court's decision just two Terms ago in Wilder." Id. at ----, 112 S.Ct. at 1371 (Blackmun, J., dissenting). However, the Suter majority expressly relied on parts of Wilder, carefully distinguished other parts, did not overrule the earlier case, and is entirely consistent with it. The First, Second, Seventh, and Eighth Circuits have so ruled, and we agree with them in this regard. See, e.g., Miller by Miller v. Whitburn, 10 F.3d 1315, 1319 (7th Cir.1993) ("We have previously held that Suter ... is not the death knell of the analytic framework established in Wilder."); Marshall v. Switzer, 10 F.3d 925, 928 (2d Cir.1993); Albiston v. Maine Commissioner of Human Services, 7 F.3d 258, 263 (1st Cir.1993) ("Suter's impact on our Sec. 1983 jurisprudence is neither particularly 'far-reaching' nor 'plainly inconsistent' with prior precedent."); Arkansas Medical Society, Inc. v. Reynolds, 6 F.3d 519, 525 (8th Cir.1993) ("[A]lthough some commentators have found Suter and Wilder difficult to reconcile, we choose to synthesize the two cases by proceeding with the two-step Golden State analysis used in Wilder, bearing in mind the additional considerations mandated by Suter."); Stowell v. Ives, 976 F.2d 65, 68 (1st Cir.1992) ("[W]e think it is much too early to post epitaphs for Wilder and its kin.... [W]e believe that it is both prudent and possible to synthesize the teachings of Suter with the Court's prior precedents, [and] we examine appellants' claims under the Wilder framework as reconfigured by the neoteric principles announced in Suter.").

In the present case, the district court certified the private right of action issue for interlocutory appeal specifically "in light of the confusion generated by the Suter opinion, and the difficulty the district courts have had in reconciling that opinion with the Wilder opinion." J.A. at 413. The court did not then have the benefit of four different circuits having cleanly reconciled the two cases.

In his brief on appeal, relying on the Suter dissent, Defendant contends that Suter significantly changed the law such that the district court in the present case erred by applying the Wilder framework. Defendant's Brief at 21-22. In light of the cases cited above, and because a careful reading of Suter reveals that it is entirely consistent with Wilder, this contention is without merit.

B. The Provisions Not Discussed By the Court Below

As noted above, the court below did not consider whether 42 U.S.C. Secs. 1396a(a)(3), 1396a(a)(10)(A)(ii), and 42 C.F.R. Secs. 431.12, 440.230, and 441.300 et seq. (excluding Secs. 441.302 and 441.303(f)(1)), give rise to a private right of action under Sec. 1983. Each of these provisions was expressly raised in Plaintiff's Amended Complaint and in Defendant's Motion to Dismiss. The Supreme Court has instructed that, in determining whether a statute gives rise to a right enforceable under Sec. 1983, "each statute must be interpreted by its own terms." Suter, --- U.S. at ---- n. 8, 112 S.Ct. at 1367 n. 8. Assuming that Plaintiffs do not render the question moot by abandoning some or all of their claims, we instruct the district court on remand to apply the Wilder framework to these provisions, in order to determine whether Defendant's motion to dismiss should be granted with respect to these claims.

C. Applying the Three Part "Enforceable Rights" Test

We turn now to the provisions on which the district court did rule. The court held that 42 U.S.C. Secs. 1396n(c)(2), 1396n(f)(1), and 42 C.F.R. Secs. 441.302 and 441.303(f)(1), did give rise to one or more private rights of action pursuant to Sec. 1983. We apply the Wilder framework to each of these statutes or regulations in turn.

1. 42 U.S.C. Sec. 1396n(c)(2) and 42 C.F.R. Sec. 441.302

a.

42 U.S.C. Sec. 1396n(c)(2) and 42 C.F.R. Sec. 441.302 provide that a state must make various assurances that are satisfactory to the Secretary in order to obtain a waiver.15 The district court held that this statute and its corresponding regulation impose binding obligations upon participating states. We agree.

First of all, although some of the assurances that a state is required to make under Section 1396n(c)(2) were obviously designed to save the government money, see, e.g., Sec. 1396n(c)(2)(D) (providing that home care costs may not exceed the cost of institutional care), other assurances serve to protect the health and welfare of home care Medicaid recipients. E.g., Sec. 1396n(c)(2)(A) (providing that a state must assure that "necessary safeguards ... have been taken to protect the health and welfare of individuals provided services under the waiver."); Sec. 441.302(a) (same); Sec. 1396n(c)(2)(B) (requiring participating states to evaluate the level of care needed by home care Medicaid recipients); Sec. 441.302(c) (same); Sec. 1396n(c)(2)(C) (providing that recipients receive information about feasible alternatives); Sec. 441.302(d) (same); Sec. 1396n(c)(2)(E) (providing that a participating state must make an annual report to the Secretary describing, inter alia, the impact of the waiver on the health and welfare of home care Medicaid recipients); Sec. 441.302(f)(2) (same).

Second, Secs. 1396n(c)(2) and 441.302 impose mandatory duties upon participating states. Such states must provide the various enumerated assurances in order to obtain a home care waiver.

Third, there is nothing vague or amorphous about what the statute or corresponding regulations require of participating states. The duties set forth therein do not involve any fuzzy, undefined concepts like "reasonable efforts."16 Rather, these duties involve unambiguous directives that are well within the ability of the judiciary to enforce. Thus, Secs. 1396n(c)(2) and 441.302 are more like the Boren Amendment that was at issue in Wilder than they are like the statute that was at issue in Suter. See Suter, --- U.S. at ----, 112 S.Ct. at 1368 (distinguishing Wilder ).

b.

Defendant maintains that Sec. 1396n(c) "fall[s] on the Suter side of the fence." Defendant's Br. at 32. He argues that the Medicaid Act gives the Secretary an active role in overseeing the approval of a state's waiver program, and that, according to Suter, such a role prevents the relevant provision from creating any enforceable rights. This argument is based upon a misreading of Suter.

The Suter Court recognized that, with regard to the Adoption Assistance and Child Welfare Act, the Secretary was required to play an active role in overseeing state plans for reimbursing foster care payments. --- U.S. at ----, 112 S.Ct. at 1368. The Court explained that this active role "show[s] that the absence of a remedy to private plaintiffs under Sec. 1983 does not make the reasonable efforts clause a dead letter." Id. at ----, 112 S.Ct. at 1369. In the present case, Defendant apparently interprets this passage to mean that the Secretary's oversight is somehow inconsistent with a private right of action. The Suter Court was, rather, anticipating and rebutting the possible argument that its analysis rendered Congress's requirement of "reasonable efforts" entirely meaningless and unenforceable. Id. The point in Suter was that the term "reasonable efforts," as used in the Adoption Act, is too vague to create judicially enforceable rights, but not too vague to be enforced by the Secretary, who implements her own policies regarding the efforts that the states must put forth.

To make the analogous point in the present case, were we to hold that Sec. 1396n(c)(2) did not give rise to any rights that are enforceable under Sec. 1983, the section would not thereby be rendered meaningless and unenforceable, for the section gives an important oversight role to the Secretary. It does not follow, however, that administrative oversight and private enforcement are somehow incompatible. Thus, the fact that the relevant statute requires oversight by the Secretary does not place the statute on "the Suter side of the fence."

c.

Defendant also argues that Sec. 1396n(c)(2) fails to give rise to privately enforceable rights because it places the primary responsibility for compliance upon the Secretary rather than upon the participating states. For this argument, Defendant relies on Audette v. Sullivan, 19 F.3d 254 (6th Cir.1994), and Stowell v. Ives, 976 F.2d 65, 69 (1st Cir.1992). The Audette and Stowell courts found that a plaintiff has no Sec. 1983 right of action against a state for the violation of 42 U.S.C. Sec. 1396a(c)(1),17 specifically because the statute "is essentially administrative in nature and imposes an obligation exclusively upon federal officials, not upon state actors." Audette, 19 F.3d at 257 (quoting Stowell, 976 F.2d at 70). The courts distinguished statutes that place the "onus of compliance" on the federal government from those that place the onus on participating states, and held that only the latter can give rise to a cognizable section 1983 cause of action. Id. at 256-57 (quoting Stowell, 976 F.2d at 70); see also id. at 257 ("Section 1396a(c)(1) provides incentives--not commands--to the States.") (quoting Stowell, 976 F.2d at 69).18

Defendant argues that the same point applies to Sec. 1396n(c)(2), that the statute imposes duties on the Secretary, not the states, regarding when the Secretary is allowed to grant a state's waiver request. We disagree. We find, rather, that Sec. 1396n(c)(2), and its corresponding regulation, Sec. 441.302, places the onus of compliance squarely upon participating states.

Defendant went awry when he failed to follow the Stowell court's guidance regarding how to determine who bears the onus of compliance. This guidance was offered in the context of the Stowell court's attempt to distinguish a key footnote in Suter. In footnote 12, the Suter Court set forth a paradigm example of a statute that imposed "precise requirements on the States aside from the submission of a plan":

For example, 42 U.S.C. Sec. 672(e) provides that "no Federal payment may be made under this part" for a child voluntarily placed in foster care for more than 180 days unless within that period there is a judicial determination that the placement is in the best interest of the child.

--- U.S. at ---- n. 12, 112 S.Ct. at 1369 n. 12. The Suter Court found that, in contrast with the "reasonable efforts" clause of Sec. 671(a)(15), which was too vague to give rise to any rights that are enforceable under Sec. 1983, the "precise requirements" of Sec. 672(e) manifested a "different" congressional intent--i.e., an intent to create private rights of action under Sec. 1983. Id.

In Stowell, the appellants attempted to argue that Sec. 1396a(c)(1) was analogous to Sec. 672(e). The court rejected this argument:

In point of fact, section 1396a(c)(1) is identical, in relevant respects, not to section 672(e) but to section 671(a)(15)--the statutory provision that the Suter Court, in footnote 12, was contrasting with 672(e). The Court deemed it noteworthy that section 671(a)(15) requires "submission of a plan to be approved by the Secretary" while section 672(e) provides that "no Federal payment may be made" unless certain conditions are met. In other words, the Suter Court distinguished between cases in which, on the one hand, a statutory provision is, in effect, a communication to a specific federal official whose approval is required prior to disbursement of federal funds (section 671(a)(15)), and cases in which, on the other hand, a statutory provision is, in effect, a communication from Congress to those States that elect to apply for earmarked funds (section 672(e)).

976 F.2d at 71 (citation omitted).

Applying this distinction to the statute at issue in the present case, it is clear that Sec. 1396n(c)(2), like Sec. 672(e), falls into the latter category; it is a communication from Congress to the participating states. The language of Sec. 1396n(c)(2)--"A waiver shall not be granted under this subsection unless the State provides [certain] assurances satisfactory to the Secretary"--is entirely analogous to that of Sec. 672(e)--"No Federal payment may be made under this part" unless certain conditions are met by the states. Thus, like Sec. 672(e), Sec. 1396n(c)(2) places the primary responsibility for compliance on the participating states rather than on the Secretary. This same point applies with equal force to Sec. 441.302, which places a similar onus of compliance on the states.19 In contrast, Sec. 1396a(c)(1) is directed only to the Secretary and not to the states--"the Secretary shall not approve...." It follows that the holdings in Audette and Stowell do not apply to Secs. 1396n(c)(2) and 441.302.20

d.

In light of the foregoing, it follows that at least some of the subsections of Secs. 1396n(c)(2) and 441.302 confer rights upon home care Medicaid recipients that are enforceable under Sec. 1983. However, not every subpart of these sections does so.

For example, Secs. 1396n(c)(2)(D)21 and 441.302(e) provide that a state may not spend more on home care than it would have spent on institutional care were the home care waiver unavailable. These provisions fail the first prong of the Wilder test; they were not intended to benefit Plaintiffs as Medicaid recipients. Rather, they were intended to save the government money by limiting the amount of Medicaid funds that a state may spend on home care.22 Similarly, Sec. 441.302(b), which requires financial accountability for the way a participating state spends its Medicaid home and community-based care funds, was designed to benefit taxpayers in general rather than Medicaid recipients in particular.

Therefore, although we affirm the district court's holding that Secs. 1396n(c)(2) and 441.302 give rise to enforceable rights, we do so only with regard to subsections 1396n(c)(2)(A), (B), (C), and (E), and 441.302(a), (c), (d), and (f)(2). These are the subsections that, as discussed above, inure specifically to the benefit of home care Medicaid recipients.

Like Sec. 1396n(c)(2), Sec. 1396n(f)(1) is another provision that Plaintiffs did not mention in their Amended Complaint, but which the court below focussed upon as creating enforceable rights. However, with respect to Sec. 1396n(f)(1), we are obliged to disagree with the district court.

Section 1396n(f)(1) provides that even after a waiver is granted, the Secretary shall continue to monitor the state's waiver program in order to assure that the requirements continue to be met, and shall terminate waivers where he finds states to be noncompliant. This statute places the onus of compliance directly upon the Secretary rather than the states. Like Sec. 1396a(c)(1), it "provides incentives--not commands--to the States." Audette, 19 F.3d at 257 (quoting Stowell, 976 F.2d at 69). Thus, as per Audette, we are bound to hold that it does not create rights enforceable against the states. We reverse the district court's holding to the contrary.

This regulation provides that a state must furnish the HCFA with "[a]n explanation with supporting documentation satisfactory to HCFA of how the agency estimated the per capita expenditures for services." It further provides a detailed formula that is to be used for making these estimates. The regulation makes it clear that its purpose is to limit the amount of money that a state may receive; the costs under a waiver program "must not exceed ... the cost of services in the absence of a waiver." Sec. 441.303(f)(1). Thus, the purpose of this regulation was not to benefit Medicaid recipients. It follows that the regulation confers no enforceable rights upon such recipients. The district court erred by holding to the contrary.

D. Congressional Foreclosure of a Sec. 1983 Remedy

In Wilder, the Supreme Court held that the administrative remedies set forth in the Medicaid Act for violations under the Act "cannot be considered sufficiently comprehensive to demonstrate a congressional intent to withdraw the private remedy of Sec. 1983." 496 U.S. at 522, 110 S.Ct. at 2524. This holding is dispositive in the present case, for the remedies described in Wilder are the very same remedies set forth in the Medicaid Act for the alleged violations at issue in the present case. They are no more comprehensive now than they were in Wilder.

Defendant argues to the contrary, on the ground that the degree of the Secretary's oversight over the Boren Amendment is less than his oversight over home care waiver programs. Defendant relies upon Carelli v. Howser, 923 F.2d 1208, 1213 (6th Cir.1991), for the erroneous proposition that oversight by the Secretary is dispositive regarding the question of congressional foreclosure of a Sec. 1983 action. Defendant's Br. at 36-37. However, Defendant has misread our Carelli decision, in which we made it clear that, with regard to the statute at issue in that case, "we do not conclude that private action is foreclosed under all circumstances by the comprehensiveness of the remedial process." 923 F.2d at 1213.23 Nothing in Carelli remotely suggests that mere oversight by the Secretary in and of itself constitutes a remedial scheme so comprehensive as to foreclose a private remedy pursuant to Sec. 1983; such a suggestion would not only be implausible, but would also be contrary to the explicit holding of Wilder.

For the foregoing reasons, we affirm that 42 U.S.C. Secs. 1396n(c)(2)(A), (B), (C), and (E), and 42 C.F.R. Secs. 441.302(a), (c), (d), and (f)(2) each confer a Sec. 1983 private right of action upon home care Medicaid recipients. We reverse the district court's holdings that Secs. 1396n(c)(2)(D), 1396n(f)(1), and 42 C.F.R. Sec. 441.303(f)(1) confer such rights. Further, we direct the court below to consider whether 42 U.S.C. Secs. 1396a(a)(3), 1396a(a)(10)(A)(ii), and 42 C.F.R. Secs. 431.12, 440.230, and 441.300 et seq. (excluding Secs. 441.302 and 441.303(f)(1)), give rise to such rights, and we remand for further proceedings in accordance with this opinion.

BATCHELDER, Circuit Judge, dissenting.

Because I conclude that the challenged provisions of the Medicaid statute do not create rights enforceable in a private action by the Woods, I respectfully dissent.

Before addressing my main concern with the majority's holding, I must point out that I disagree with the majority's interpretation of the scope of our review on an interlocutory appeal. The majority states:

The only issue certified for interlocutory appeal is whether the relevant statutes give rise to rights that are enforceable under Sec. 1983. The parties have also briefed the issues of Randy and Diane Woods' standing to bring this suit, and the court's refusal to dismiss Plaintiffs' various due process claims on the pleadings. These questions were not certified for appeal, and we decline to address them at this time.

Slip. Op. at 604 (footnotes omitted). While this court can, if it chooses, decline to address issues of secondary relevance on an interlocutory appeal, it clearly has the power to address all the issues raised in the case below. In Easley v. Pettibone Mich. Corp., 990 F.2d 905, 912 (6th Cir.1993), this court noted: " 'we recognize that even those issues not properly certified [pursuant to Sec. 1292(b) ] are subject to our discretionary power of review ....' " (quoting Pinney Dock & Transp. Co. v. Penn Cent. Corp., 838 F.2d 1445, 1455 (6th Cir.), cert. denied, 488 U.S. 880, 109 S.Ct. 196, 102 L.Ed.2d 166 (1988)). The Seventh Circuit succinctly summed up the rule governing review of interlocutory appeals in Edwardsville Natl. Bank and Trust Co. v. Marion Labs. Inc., 808 F.2d 648, 650-651 (7th Cir.1987), in which that court held:

The statute [Sec. 1292(b) ] refers to certifying an "order" for interlocutory appeal. It is not a method of certifying questions. The question is the reason for the interlocutory appeal, but the thing under review is the order. [Citations omitted]. Were things otherwise, there would be substantial risk of producing an advisory opinion.

See also Walsh v. Ford Motor Co., 807 F.2d 1000, 1002 n. 2 (D.C.Cir.1986) ("Section 1292(b) ... appeal is from an order of the district court, not from the particular question that the district court found controlling"), cert. denied, 482 U.S. 915, 107 S.Ct. 3188, 96 L.Ed.2d 677 (1987) (emphasis in original). Thus, this court may address any issue raised by the parties below if it is of importance in resolving the appeal.1

I now come to my main concern with the majority's decision; that is, the majority's determination that the sections of the Medicaid Act relied upon by the Woods create private rights of action. I note that this is all the majority determined; that various sections of the Medicaid statute confer a Sec. 1983 private right of action upon home-care Medicaid recipients, and not that, under the provisions of the Medicaid Act upon which they rely, the Woods have stated a cause of action for which relief can be granted. While this action is an interlocutory appeal from a denial of a motion to dismiss, which is not usually appealable, the fact of the matter is that one of the main reasons for permitting interlocutory appeals is to "materially advance the ultimate termination of the litigation." 28 U.S.C. Sec. 1292(b). And, a decisive determination that the Woods have failed to state a claim upon which relief can be granted would clearly serve this purpose.

As noted in the discussion above, when this court reviews an interlocutory appeal, the entire order is open to us. In fact, were this not the case, there is a real possibility that advisory opinions would be issued; that is, opinions that only deal in the abstract with the specific question of law certified by the district court and that do not materially advance the resolution of the controversy. See Church of Scientology of Hawaii v. United States, 485 F.2d 313, 314 (9th Cir.1973) ("the court does not render advisory opinions or decide abstract propositions"); Minnesota v. United States Steel Corp., 438 F.2d 1380, 1384 (8th Cir.1971) ("The legal questions should not be considered in the abstract. There must be precision in proof of fact worthy to serve as the premises essential to balance and weigh the legal issues involved.").

I find disturbing the majority's total silence on the issue of whether the Medicaid Act grants a private right of action to these plaintiffs, the Woods, such that they have stated a claim for which relief can be granted. I would hold that it does not. By their silence, the majority appears to adopt the position that if the Medicaid Act creates any private rights of action, then the Woods should be permitted to proceed with their case regardless of whether the right they are seeking to vindicate is one that can be implied from the language of the Act. This is a position I cannot join.

In essence, what the plaintiffs seek in this case is a judicial determination that their son is not receiving the amount of home-care to which they believe he is entitled. This is the Woods' primary contention, and all of their other claims are little more than a footnote to it. It is apparently the Woods' position that they are the appropriate party to make the determination as to how much care Evan is entitled to under the waiver program. However, nothing in the language of the relevant provisions of the Medicaid Act supports this position. What the language of the Act does specifically provide is that

[t]he Secretary may by waiver provide that a State plan approved under this subchapter may include as 'medical assistance' under such plan payment for part or all of the cost of home or community-based services ... approved by the Secretary which are provided pursuant to a written plan of care to individuals with respect to whom there has been a determination that but for the provision of such services the individuals would require the level of care provided in a hospital or a nursing or intermediate care facility....

42 U.S.C. Sec. 1396n(c)(1) (emphasis added).

The language of this section specifically permits the state to provide for part or all of the cost of home or community-based services; I find no provision of the code or regulations that requires the state to defer to the demands of the particular recipient in determining how much care the state will provide pursuant to the plan. Any other reading renders the "part or all" language of the statute nugatory, as it is a fair bet that every potential recipient of the waiver program who does not receive the number of hours of home-based care to which she feels entitled will bring a private suit to compel the state to comply with her demands.

I do not take issue with the majority's analysis of the Suter decision, or their determination that Suter can be harmonized with Wilder. I do however disagree about the side of the Wilder/ Suter fence on which the claims made by the plaintiffs fall. It seems to me that, simply put, the issue in this case is whether the Woods can state a claim under the relevant provisions of the Act which would allow them to compel the state to provide a greater number of hours of home-care. In Suter v. Artist M., --- U.S. ----, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992), the Supreme Court determined that provisions of the Adoption Assistance and Child Welfare Act do not create privately enforceable rights. The Suter court noted that the Adoption Act mandated that "[i]n order for a State to be eligible for payments under this part, it shall have a plan approved by the Secretary." The Court held the effect of this language was that "the Act does place a requirement on the States, but that requirement only goes so far as to ensure that the State have a plan approved by the Secretary which contains the 16 listed features." Suter, --- U.S. at ----, 112 S.Ct. at 1367. Similarly, in the case before us now, 42 U.S.C. Sec. 1396n(c)(2) reads: "A waiver shall not be granted under this subsection unless the State provides assurances satisfactory to the Secretary that" various safeguards are provided and assurances are made. (Emphasis added). I concede that if the state had made no assurances whatsoever to the Secretary, a hypothetical plaintiff would have the right to file suit to force the state to make such assurances. However, once such assurances are made, it is the Secretary's duty, and not the right of a private party, to determine whether the assurances and safeguards are adequate. It seems to me that the "assurances" that the state must provide are no less fuzzy or amorphous than the "reasonable efforts" held not to create a private right of action in Suter.

In short, I would hold that the provisions of the Medicaid statute relied upon by the Woods do not, under these facts, create a claim for which relief can be granted. I would reverse the district court and remand with instructions to dismiss for failure to state a claim for which relief can be granted.