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Full Opinion
Defendants, officials of the government of the Commonwealth of Virginia,
I.
VHA brought this § 1983 action to challenge Virginia’s procedures for reimbursing hospitals for the costs of treating Medicaid patients (“Virginia Plan”).
On September 22, 1986, the district court granted summary judgment for Virginia on the ground that collateral estoppel precluded VHA from litigating issues decided in Mary Washington Hospital, Inc. v. Fisher, 635 F.Supp. 891 (E.D.Va.1985), a similar action brought by one VHA member hospital. We reversed that decision and remanded the case. Virginia Hospital Association v. Baliles, 830 F.2d 1308 (4th Cir.1987).
Virginia then moved for summary judgment based on a number of nonjusticiability arguments. Virginia disputed VHA’s contention that the Medicaid Act creates a right actionable under § 1983, and argued that the Medicaid Act evidences a congressional intent to foreclose private enforcement. Virginia further contended that stare decisis or the Eleventh Amendment barred VHA’s suit, and that VHA lacked standing. Virginia alleged finally that the statute of limitations barred VHA’s claim, that the claim is not ripe, and that the district court should abstain.
The district court denied Virginia’s motion, holding the action currently justicia-ble. We agree and affirm.
II.
We believe Virginia’s most substantial argument is that VHA has no right actionable under § 1983, and so we address that issue first.
A.
Virginia argues that only health care recipients, and not individual or associated health care providers, have rights enforceable under the Medicaid Act. We agree with the district court that the Medicaid Act supplies VHA with an enforceable right, and that Virginia failed to establish a congressional intent to foreclose private enforcement.
Section 1983 supplies VHA with no substantive rights. The statute serves simply as a vehicle to redress the deprivation under color of state law “of any rights ... secured by the [federal] Constitution and laws....” 42 U.S.C.A. § 1983 (West 1981). The initial query is accordingly whether the Medicaid Act provides VHA with any substantive right.
There is no dispute that the Medicaid Act does not expressly confer a right of action on health care providers. The Supreme Court has held, however, that federal statutes may imply rights actionable under
In Pennhurst, the Court examined the text and legislative history of the Developmentally Disabled Assistance and Bill of Rights Act of 1975 (“Assistance Act”), 42 U.S.C.A. § 6000 et seq., a statute similar in some respects to the Medicaid Act. Both statutes create programs whereby the Federal Government provides money to States to fund programs for persons specially in need. State participation is voluntary under both statutes, but both require participating states to meet certain conditions to receive federal funds.
The Court in Pennhurst noted that while many provisions of the Assistance Act expressly conditioned federal assistance on state compliance, the provision at issue, 42 U.S.C.A. § 6010, did not. 451 U.S. at 13, 101 S.Ct. at 1538. The Court also noted that the right the mentally retarded respondents claimed, that of “appropriate treatment” in the “least restrictive environment”, would impose a massive financial obligation on participating states. 451 U.S. at 16-17, 101 S.Ct. at 1539-1540. After examining the language and legislative history of § 6010 and other sections of the Assistance Act, the Court concluded that § 6010 was merely precatory and did not create a right in favor of the respondents. Id. at 18, 101 S.Ct. at 1540. See Wright v. Roanoke Redev’t & Hous. Auth., 479 U.S. 418, 423, 107 S.Ct. 766, 770, 93 L.Ed.2d 781 (1987) (“In Pennhurst, a § 1983 action did not lie because the statutory provisions were thought to be only statements of “findings” indicating no more than a congressional preference — at most a “nudge in the preferred directio[n],” 451 U.S. at 19, 101 S.Ct. at 1541, and not intended to rise to the level of an enforceable right.”).
We note at the outset of our analysis that two other circuits appear to have concluded that § 1396a(a)(13)(A) supplies providers with enforceable rights. Colorado Health Care Ass’n v. Colorado Dep’t of Social Serv., 842 F.2d 1158, 1164 n. 5 (10th Cir.1988); Coos Bay Care Ctr. v. Oregon, 803 F.2d 1060 (9th Cir.1986), cert. granted, 481 U.S. 1036, 107 S.Ct. 1970, 95 L.Ed.2d 811 vacated as moot, — U.S. -, 108 S.Ct. 52, 98 L.Ed.2d 17 (1987). Because VHA is, for purposes of this decision, simply a medium through which its members have elected to litigate, these decisions respecting individual providers pertain to our consideration of VHA’s derivative rights. We are also aware that another district court in this circuit appears to have reached the opposite conclusion in a case pending before us. Vantage Healthcare Corp. v. Virginia Board of Medical Assistance Services, 684 F.Supp. 1329 (E.D.Va.1988) (appeal pending as No. 88-3872). The substantive issue in Vantage is not, as here, the propriety of reimbursement rates generally, but whether providers are entitled to a certain type of reimbursement, called a return on equity capital. This distinction means our decision in this case does not foreordain the outcome of Vantage and, as a corollary, that the district court’s dismissal of Vantage’s § 1983 ac
We believe the language and legislative history of § 1396a(a)(13)(A) imply a congressional intent to allow providers a right of action against State failure to comply with federal Medicaid requirements. Virginia proposes, though, that the significant language of § 1396a(a)(13)(A) is the clause requiring Virginia to assure the Secretary of its compliance. In Virginia’s view, as we understand it, it is the elaborate statement of the section’s public welfare goals, [stipulating the conditions with which Virginia must comply] that is precatory. Once the Secretary has accepted Virginia’s assurances that the plan will comply, there is no federal judicial authority to consider whether Virginia has made good on its promise. We believe a reading of § 1396a(a)(13)(A) in the context of the Medicaid Act, as Pennhurst requires, alone refutes Virginia’s interpretation. The comments of the Congress that enacted the Boren Amendment dispel the argument even more forcefully.
It is true that § 1396a(a)(13)(A) does not in so many words condition federal assistance on state compliance with its express purpose, which is to require reimbursement rates that are “reasonable and adequate to meet the costs ... incurred by efficiently and economically operated [providers] ... and to assure that [Medicaid patients] have reasonable access ... to inpatient hospital services of adequate quality....” Virginia proposes that the intent behind § 1396a(a)(13)(A) is not forcefully to effect this purpose, but, as with the provision at issue in Pennhurst, simply to “nudge” the states toward action Congress did not see fit to make mandatory. We cannot agree with the proposition and conclude that § 1396a(a)(13)(A) reveals an unambiguous intent to assure reimbursement rates that are reasonable and adequate in fact.
Even a cursory reading of the forty-nine provisions of 42 U.S.C.A. § 1396a(a), which stipulate what a state Medicaid plan must include and provide, reveals that none is expressly conditional. Each provision is rather subject to the imperative of their predicate § 1396a(a), which indicates that the provisions specify what a State plan “must” contain. We believe the district court correctly concluded that § 1396a(a)(13)(A) reveals a congressional intent to condition federal assistance on states’ achievement of the express purpose of the section, and not simply on states’ assurances of compliance.
B.
The legislative history of § 1396a(a)(13)(A) strongly reinforces our interpretation. The Joint Explanatory Statement of the Committee of Conference, commenting on the bill as enacted, states flatly that “the conferees intend that state hospital reimbursement policies should meet the costs that must be incurred by efficiently administered hospitals in providing covered care and services to medicaid eligibles_” H.R.Conf.Rep. No. 208, 97th Cong., 1st Sess., reprinted in 1981 U.S.Code Cong. & Admin.News 396, 1324. The Conference Committee’s bill contained much of the text of the bill proposed by the Senate Finance Committee, which had included “a provision requiring states to reimburse hospitals at rates (determined in accordance with methods and standards developed by the states) that are reasonable and adequate to meet the cost [sic] which
The legislative history also indicates that Congress intended no close scrutiny by the Secretary of Virginia’s assurances of compliance with the mandates of § 1396a(a)(13)(A). 1981 U.S.Code Cong. & Admin-News 744. (“The [Senate Finance] committee expects that the Secretary will keep regulatory and other requirements to the minimum necessary to assure proper accountability, and not to overburden the states and [providers] with unnecessary and burdensome paperwork requirements. It is expected that the assurance made by the states will be considered satisfactory in the absence of a formal finding to the contrary by the Secretary.”) See supra p. 9 n. 3. This history indicates further the unreason of Virginia’s proposition that Congress intended state review and assurances to be the sole means of assuring that the Virginia system provides reasonable access to care of adequate quality.
We are aware that OBRA purposed to reduce the federal budget, that § 1396a(a)(13)(A) aims to promote this purpose by implementing a more cost-efficient Medicaid scheme, and that a logical reading of § 1396a(a)(13)(A) could accordingly be that it insulates State reimbursement programs from challenges by hospitals compensated at new, lower rates. Our reading of § 1396a(a)(13)(A), however, is that it guarantees reasonable and adequate reimbursement to hospitals that achieve cost-efficiency. We believe that only this reading protects the balance for which Congress has striven between insuring health care to the poorest citizens and imposing a manageable burden on the federal and state treasuries.
Our view of § 1396a(a)(13)(A) allays the concern understandably influential in Pennhurst, that implying a private right of action may lead to crushing financial burdens that participating states could not have foreseen when they elected to participate in the Medicaid program.
C.
Having concluded that § 1396a(a)(13)(A) confers a right on providers, we must now consider whether the Medicaid Act’s enforcement provisions reveal an intent to foreclose a private judicial remedy for abridgement of the right. We observe at the outset that exhaustion of state administrative remedies is not ordinarily a prerequisite to commencing a § 1983 action. Patsy v. Board of Regents, 457 U.S. 496, 507-12, 102 S.Ct. 2557, 2563-66, 73 L.Ed.2d 172 (1982). Patsy does not, however, displace the holding of National Sea Clammers, 453 U.S. at 13-14, 101 S.Ct. at 1537-1538, that the constellation of enforcement mechanisms, administrative and otherwise, available under a federal statute may be so elaborate as to evince a congressional intent to bar additional judicial remedies. We believe that the enforcement mechanisms under the Medicaid Act evince no such intent, and hold that VHA is not foreclosed from seeking redress through a § 1983 proceeding.
The burden is on Virginia to “demonstrate ... by express provision or other specific evidence from the statute itself that Congress intended to foreclose such private enforcement.” Wright v. City of Roanoke Redev’t and Hous. Auth., 479 U.S. 418, 423, 107 S.Ct. 766, 770, 93 L.Ed.2d 781 (1987); see also Smith v. Robinson, 468 U.S. 992. 1011-12, 104 S.Ct. 3457, 3468-69, 82 L.Ed.2d 746 (1984), National Sea Clammers, 453 U.S. at 13, 101 S.Ct. at 1538. Congress has not expressly foreclosed private enforcement of the Act. We agree with the district court that Virginia has not satisfied its burden of showing an implied intent to foreclose private judicial enforcement.
The Act lacks any provision for a judicial remedy. The Supreme Court has found such a lack a strong indicium of an intent not to foreclose. Wright, 479 U.S. at 427, 107 S.Ct. at 772; Smith, 468 U.S. at 1011, 104 S.Ct. at 3468; National Sea Clammers, 453 U.S. at 14-17, 101 S.Ct. at 1538-40.
The Secretary, through the Health Care Financing Administration (“HCFA”), possesses some authority to review State plans. As we have noted, § 1396a(a)(13)(A) requires State assurances “satisfactory to the Secretary.” 42 U.S.C.A. § 1396a(a)(42) empowers the Secretary to audit state plans as necessary to insure proper reimbursement. 42 U.S.C.A. § 1396c allows the Secretary to withdraw federal funds from states found not in compliance.
In Wright, however, the court found federal agency “authority to audit, enforce ... contracts, and cut off federal funds ... [to be] generalized powers ... insufficient to indicate a congressional intention to foreclose § 1983 remedies.” 479 U.S. at 428, 107 S.Ct. at 773.
The Medicaid Act is not, however, the exclusive source of oversight mechanisms. Virginia has established an administrative appeals mechanism whereby VHA and its members may air at least some of their grievances.
III.
We next consider whether the district court was correct to refuse Virginia’s request for summary judgment based on stare decisis. Virginia contends that the district court’s decision in Mary Washington Hospital Inc. v. Fisher, 635 F.Supp. 891 (E.D.Va.1985), an action brought by a single VHA member hospital against various DMAS officials, has addressed all of the allegations raised here by VHA.
The district court in Mary Washington described the case as a challenge by a provider of “the failure of Virginia’s [reimbursement] system to take into account [the hospital’s location] and other factors that allegedly affected its costs of efficient operation.” 635 F.Supp. at 896. The provider had also challenged “the use of the [consumer price index] as the reimbursement escalator and particularly the failure of the system to recognize increases in operating costs resulting from the addition of new and necessary services.” Id. The court also observed “that the potential future inadequacy of Virginia’s rates under the current system is not now a properly justiciable issue”. Id. at 901. It is, of course, precisely this issue that VHA seeks to litigate in this action.
The decision in Mary Washington was sufficiently fact specific, and the holdings there sufficiently distinct from what would have been dispositive here, that there were not clear bases on which to dismiss VHA’s action outright. It is true that Mary Washington upheld all aspects of the Virginia plan save its appeals mechanism. Virginia has since promulgated a new ap
IV.
We now address the remainder of the arguments Virginia has presented in favor of nonjusticability.
A.
The correct analysis of Virginia’s contention that the Eleventh Amendment bars VHA’s suit is set forth in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), and its progeny. Ex parte Young recognized an exception to the States’ Eleventh Amendment immunity for suits that charge state officials with violations of federal law and request prospective relief. We note first that VHA has requested no retroactive monetary relief, and has named as defendants not the Commonwealth itself or any of its agencies or departments, but only certain Commonwealth officials. See Papasan v. Allain, 478 U.S. 265, 277-78, 106 S.Ct. 2932, 2940-41, 92 L.Ed.2d 209, 226-27 (1986).
Virginia nonetheless asserts that the Commonwealth is the “real party in interest” to the action and that VHA seeks disguised monetary relief in the form of higher reimbursement rates. Virginia is, of course, correct to some extent, but has nonetheless failed to identify why the case is not within the Ex parte Young exception. A suit against Virginia officials for actions done in obedience to Commonwealth law naturally interests the Commonwealth, but is just the sort of action Ex parte Young authorized. The Supreme Court has also repeatedly recognized that “relief that serves directly to bring an end to a present violation of federal law is not barred by the Eleventh Amendment even though accompanied by a substantial ancillary effect on the state treasury.” Papasan, 478 U.S. at 278, 106 S.Ct. at 2940, 92 L.Ed.2d at 227; see also Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977); Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). We believe the district court correctly held this action not barred by the Eleventh Amendment.
B.
VHA claims associational standing in behalf of its member hospitals. The standard is whether: (1) the members otherwise have standing; (2) the interest VHA seeks to promote is germane to its purpose;
Virginia here argues that the district court incorrectly assessed the evidence on the third Coles criterion. Virginia also contends that VHA had no direct or proprietary interest in the adequacy of Medicaid rates and so has no interest sufficient to create a case or controversy with Virginia. Cf. Baliles, 830 F.2d at 1315 (Phillips, J., dissenting) (“The standing issue is critically related to the collateral estoppel issue in ways that might well force VHA into somewhat conflicting positions on the nature and degree of the associational relationships here at issue.”). We believe, given
Virginia argues that the district court will have to examine data and make findings for each VHA member hospital in order to resolve VHA’s claims and, if appropriate, to grant the requested relief. If this were right, or if it appeared to be so at this stage, Virginia might be correct that VHA fails to satisfy the third Coles criterion. We think though, that Virginia’s argument is not now valid.
As the district court observed, VHA “asserts it is challenging factors common to all of the hospitals.” VHA’s claims are against the Virginia Plan, and it has requested relief that would result in the reform of the plan. While reform certainly affects each member hospital, and may at some point require proceedings directed toward sets of providers smaller than VHA, VHA has not requested that the district court do anything but consider the plan. Virginia has not made clear why the district court must necessarily inquire into the affairs of each provider or of smaller groups of providers to do what VHA requests, and we find no evidence in the pleadings or elsewhere that suggests trial or an order in favor of VHA would require findings specific to its individual members. We therefore believe the district court was correct to recognize VHA’s standing at this stage, although we endorse the court’s willingness to revisit this issue if further progress reveals evidence that VHA should not have standing to proceed alone.
c.
The parties agree that the pertinent limitations period is two years. They also agree that VHA’s cause of action first arose on July 1, 1982, when Virginia enacted its current reimbursement plan. VHA filed its complaint on March 19, 1986. The district court found that VHA had alleged an ongoing constitutional violation, and that the statute would not have begun to run until the violation ended. We believe this was correct.
Virginia argues that the district court’s decision would nullify all statutes of limitation with respect to statutory challenges. The district court, however, held only that “[t]he continued enforcement of an unconstitutional statute cannot be insulated by the statute of limitations”, a holding in line with appellate precedent. Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954); Eldridge v. Bouchard, 645 F.Supp. 749 (W.D.Va.1986), aff'd, 823 F.2d 546 (4th Cir.1987); Long v. Florida, 805 F.2d 1542 (11th Cir.1986), cert. denied, — U.S. -, 108 S.Ct. 78, 98 L.Ed.2d 41 (1987).
Virginia’s subsidiary argument, that the statute of limitations should bar VHA from suing based on conduct after March 19, 1984, seems to repeat its principal argument, and to fail for the same reason. Virginia recognizes that a partial bar would preclude a challenge to the entire reimbursement system and limit the issues to the validity of relatively minor or as-yet-unimplemented aspects of the system. This is patently incompatible with the district court’s holding that the limitations period cannot protect an allegedly unconstitutional program.
D.
The district court determined that VHA’s claims were ripe as essentially legal products of final agency action and because of the hardship delay would produce.
Toilet Goods Ass’n v. Gardner, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967), on which Virginia relies heavily, supports the district court’s decision. In Toilet Goods, a group of cosmetics manufacturers challenged an FDA regulation allowing unannounced inspections of the manufacturers’ plants. The FDA had not yet applied its regulation, and the Court found its effect therefore speculative. 387 U.S. at 164, 87 S.Ct. at 1524. In this case, VHA has levied a challenge to a system that has operated for some years and the products of which, the reimbursement rates, VHA believes inadequate. Although no VHA member hospital has prosecuted its case through the administrative appeal mechanism, this mechanism is also the subject of VHA's challenge. VHA has framed its suit as a denial of the legitimacy of the entire Virginia plan. We think the district court was correct to hold that the effects of this system are now sufficiently clear to defeat an argument that VHA’s suit is premature.
Toilet Goods also supports VHA’s position on hardship. In Toilet Goods, the Court found the burdens of preliminary compliance and of piecemeal administrative challenges a sufficient hardship to satisfy a ripeness test. 387 U.S. at 163-64, 87 S.Ct. at 1524-25. Here, VHA alleges that its members’ reimbursement rates and opportunity for redress through the administrative apparatus are inadequate. Delay would increase the costs to VHA members, costs the Eleventh Amen