A Gonzaga v. Doe Reality Lesson

I imagine most of us, for each class we teach, have a list of favorite and least-favorite cases. For Federal Courts (by far my favorite class to teach), the latter list is far longer than the former, and includes, near the top (perhaps second only to this one), the Supreme Court's 2002 decision in Gonzaga University v. Doe. The short version of Gonzaga is that the Court held, by a 7-2 vote, that a spending provision within the Family Educational Rights and Privacy Act of 1974 (FERPA) could not be privately enforced under 42 U.S.C. § 1983.

One year earlier, in Alexander v. Sandoval, the Court scaled back its implied-cause-of-action jurisprudence, but Gonzaga was another major step, holding that even where Congress had expressly provided a cause of action, litigants could only invoke § 1983 if they could show that the statute they were seeking to enforce includes clear "rights-creating" language--a unmistakable indication that Congress intended the statute to be privately enforceable. Thus, whereas Sandoval held that Congress must be clear in its intent to create a cause of action, Gonzaga held that Congress must similarly be clear in its intent to create a privately-enforceable right (as opposed to merely a right against state action) in order for litigants to sue under § 1983.

The problem, of course, is that Congress is seldom clear in that regard, which brings me to the meat of this post: A disturbing Fifth Circuit decision from December, holding that the so-called "Equal Access" provision of the Medicaid Act, 42 U.S.C. § 1396a(a)(30)(A),  is not sufficiently clear to allow enforcement under § 1983.

More below the jump...

Here is the basic issue (with a major assist on the details from a fairly reliable source on all things Medicaid): Despite the fact that they have relatively comprehensive health insurance, Medicaid beneficiaries, in many states and communities, do not have access to health care anywhere comparable to that received by the privately insured. Some of the difference is attributable to simple discrimination; some of it is due to the reality that Medicaid beneficiaries tend to live in less affluent communities with fewer health care providers; but at least some is often attributable to states setting reimbursement rates far below market levels, which prices Medicaid recipients out of all but the cheapest health care (and sometimes even that, too).

To try to tackle this last issue, Congress passed the so-called "Equal Access" provision, 42 U.S.C. § 1396a(a)(30)(A):

A State plan for medical assistance must . . . provide such methods and procedures relating to the utilization of, and the payment for, care and services available under the plan . . . as may be necessary . . . to assure that payments . . . are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area . . . .

Under the Equal Access provision, then, states that opt to participate in the Medicaid program are required to set reimbursement rates high enough to allow Medicaid beneficiaries "equal" access to the same services privately available "to the general population."

The problem is that lots of states--including Texas--don't abide by the Equal Access provision. And so the question becomes how to require that the states follow the applicable law. One possibility is enforcement by the federal government, but the only real remedy provided by the Medicaid Act is the withholding of federal funds, which hurts the beneficiaries and the providers, but not the states. That really just leaves private enforcement, and 42 U.S.C. § 1983.

So, a non-profit in El Paso took Texas to court, and lost on the ground that Gonzaga forecloses enforcement of the Equal Access provision via § 1983. Writing for a unanimous Fifth Circuit panel, Judge Dennis concluded that:

We are forced by Gonzaga to abjure the notion that anything short of an unambiguously conferred private individual “right,” rather than the broader or vaguer “benefits” or “interests,” may be enforce under § 1983. Accordingly, we may not follow Evergreen’s essential inference that, because Congress’s aim in the Medicaid Act was to protect the interests of health care recipients as its primary, ultimate beneficiaries, Congress necessarily meant for recipients to enforce the Equal Access provision in private suits under § 1983. The Equal Access provision has a clearly aggregate and systemic focus that deals with institutional policy and procedures, rather than an individualized focus concerned with whether the needs of any particular person or class of recipients have been satisfied. Consequently, we conclude that the Equal Access provision, which plausibly invests the Secretary with the exclusive power and duty of carrying it into effect, does not necessarily or unambiguously create, in addition, private rights in recipients to enforce Equal Access by individual or class suits under § 1983.

To be fair, the fault lies not with the Fifth Circuit. As it noted at the end of its opinion, its conclusion is in accord with decisions of five other circuits. Rather, this is the result of Gonzaga--the idea that statutory requirements meant to protect the rights of individuals are effectively unenforceable unless Congress was unusually direct and explicit.

It's one thing to preclude enforceability of statutory provisions like the FERPA provisions at issue in Gonzaga, which are unclear at best with respect to whether they anticipate private enforcement. But when the clear purpose of a statute is to create a right to equal access to something as fundamental as health care, and when every court in the country to reach the question had previously concluded that the statute was enforceable via § 1983, Gonzaga must be understood for what it is:  a liability-proof shelter for the states from federal programs meant to benefit the neediest of individuals. And one created by the Supreme Court, and not by Congress.

In his dissent in Gonzaga, Justice Stevens warned that

by circularly defining a right actionable under § 1983 as, in essence, “a right which Congress intended to make enforceable,” the Court has eroded-if not eviscerated-the long-established principle of presumptive enforceability of rights under § 1983. Under this reading of the Court's opinion, a right under Blessing is second class compared to a right whose enforcement Congress has clearly intended. Creating such a hierarchy of rights is not only novel, but it blurs the long-recognized distinction between rights and remedies.

The idea of "second class" rights is disturbing enough in the abstract. All the more so in the Medicaid cases, where the right at issue was created in the first place in order to mitigate the ever-increasing disparity between classes of the population.