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570 F.3d 520 (2009)
Sarah GRAMMER, as Administratrix of the Estate of Melvinteen Daniels,
Deceased, Appellant
v.
JOHN J. KANE REGIONAL CENTERS-GLEN HAZEL.
No. 07-2358.
United States Court of Appeals, Third Circuit.
Argued May 20, 2008.
Filed June 30, 2009.
522*522 D. Aaron Rihn, Esq. (Argued), Robert F. Daley, Esq., Robert
Peirce & Associates, Pittsburgh, PA, for Appellant.
Michael R. Lettrich, Esq. (Argued), Meyer, Darragh, Buckler, Bebenek
& Eck, Pittsburgh, PA, for Appellee.
Before: SMITH and NYGAARD, Circuit Judges, and STAFFORD,[*] District
Judge.
OPINION OF THE COURT
NYGAARD, Circuit Judge.
We are asked in this appeal to determine whether an action will
lie under 42 U.S.C. § 1983 to challenge the treatment Appellant's
decedent received (or did not receive) at the Appellee nursing home—
treatment Appellant argues violated the Federal Nursing Home Reform
Amendments (FNRA), 42 U.S.C. § 1396r et seq. We answer that
question in the affirmative and will reverse and remand the cause
to the District Court.
In so holding, we conclude that the language of the FNHRA is sufficiently
rights-creating and that the rights conferred by its various provisions
are neither "vague and amorphous" nor impose upon states
a mere precatory obligation. See Gonzaga Univ. v. Doe, 536 U.S.
273, 287, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002) (citing Alexander
v. Sandoval, 532 U.S. 275, 288-89, 121 S.Ct. 1511, 149 L.Ed.2d 517
(2001)). Further, we conclude that § 1983 provides the proper
avenue for relief because the Appellee has failed to demonstrate
that Congress foreclosed that option by adopting another, more comprehensive
enforcement scheme. See Gonzaga Univ., 536 U.S. at 284, 122 S.Ct.
2268.
I.
Appellant's mother, Melviteen Daniels, was a resident of the John
J. Kane Regional Center at Glen Hazel, in Pittsburgh, Pennsylvania.
The Kane Center is a residential skilled nursing care and rehabilitation
center for short-term and/or long-term needs, and is operated by
Allegheny County. The Appellant maintains that, as a result of Kane
Center's failure to provide proper care, her mother developed decubitus
ulcers, became malnourished and eventually developed sepsis, from
which she died.
Grammer sued Kane Center bringing claims under 42 U.S.C. §
1983 for wrongful death (Count I) and survival (Count II). Grammer
alleged that the Kane Center deprived Mrs. Daniels of her civil
rights by breaching a duty to ensure quality care under the Omnibus
Budget Reconciliation Act of 1987 (OBRA) and, more specifically,
the FNHRA thereto. The Kane Center filed a motion to dismiss, arguing
that neither the OBRA nor the FNHRA provide a right that is enforceable
through § 1983. The Kane Center maintained that the statutes
merely set forth requirements a nursing facility must comply with
to receive federal Medicaid funds. The District Court adopted the
Magistrate Judge's recommendation finding no right of action under
the statutes, and dismissed the case pursuant to Fed.R.Civ.P. 12(b)(6).
523*523 II.
Our jurisdiction is found in 28 U.S.C. § 1291 which gives
us jurisdiction over final decisions of the district courts. When
deciding a motion under Federal Rule of Civil Procedure 12(b)(6),
a district court must "accept all factual allegations as true,
construe the complaint in the light most favorable to the plaintiff,
and determine whether, under any reasonable reading of the complaint,
the plaintiff may be entitled to relief." Phillips v. County
of Allegheny, 515 F.3d 224, 233 (3d Cir.2008). Our review of such
a dismissal is plenary. Leveto v. Lapina, 258 F.3d 156, 161 (3d
Cir.2001).
III.
Title XIX of the Social Security Act, codified at 42 U.S.C. §§
1396-1396v is popularly known as the "Medicaid Act." This
Act established a "cooperative federal-state program under
which the federal government furnishes funding to states for the
purpose of providing medical assistance to eligible low-income persons."
Sabree ex rel. Sabree v. Richman, 367 F.3d 180, 182 (3d Cir.2004)
(citing Pa. Pharm. Ass'n v. Houstoun, 283 F.3d 531, 533 (3d Cir.2002)).
States are, of course, not required to participate in this program,
but those that do accept federal funding must comply with the Medicaid
Act and with regulations promulgated by the Secretary of Health
and Human Services. Id.
Before Congress amended the Medicare and Medicaid Acts in 1987,
only two sanctions were available against nursing homes for noncompliance
with federal participation requirements. First, the Secretary of
Health and Human Services or the states themselves could decertify
the facility and terminate the nursing home's eligibility to receive
Medicaid reimbursements. Second, if noncompliance was not an immediate
and serious threat to the residents' health and safety, the Secretary
or the states could deny payment for new admissions for up to eleven
months. These sanctions were rarely invoked. As a result, the programs
permitted too many substandard nursing homes to continue operations.
Congress thus became "deeply troubled that the Federal Government,
through the Medicaid program, continue[d] to pay nursing facilities
for providing poor quality care to vulnerable elderly and disabled
beneficiaries." H.R.Rep. No. 100-3901, at 471 (1987), reprinted
in 1987 U.S.C.C.A.N. 2313-1, 2313-272.
In 1987, Congress passed the FNHRA, contained in OBRA, to provide
for the oversight and inspection of nursing homes that participate
in Medicare and Medicaid programs.[1] The requirements for certification
include satisfying certain standards in areas such as "quality
of care" and "resident rights." 42 U.S.C. §§
1395i-3(g), 1396r(g).
Grammer's complaint alleged claims under § 1983 for wrongful
death (Count I) and survival (Count II). Grammer contends that the
Kane Center's failure to provide the standards of care delineated
524*524 by the FNHRA deprived her mother of her civil rights. Grammer's
complaint focuses on the following provisions of the FNHRA:
• A nursing home must care for its residents in such a manner
and in such an environment as will promote maintenance or enhancement
of the quality of life of each resident, 42 U.S.C. § 1396r(b)(1)(A);
• A nursing facility must provide services and activities
to attain or maintain the highest practicable physical, mental and
psychosocial well-being of each resident in accordance with a written
plan of care which (a) describes the medical, nursing and psychosocial
needs of the resident and how such needs will be met; 42 U.S.C.
§ 1396r(b)(2)(A);
• A nursing facility must conduct a comprehensive, accurate,
standardized reproducible assessment of each resident's functional
capacity, which assessment (i) describes the resident's capability
to perform daily life functions and significant impairments in functional
capacity; (iv) including identification of medical problems; 42
U.S.C. § 1396r(b)(3)(A);
• To the extent needed to fulfill all plans of care described
in paragraph (2), a nursing facility must provide (or arrange the
provision of) dietary services that assure the meals meet the daily
nutritional and special dietary needs of each resident. Services
described in clause (iv) must be provided by qualified persons in
accordance with each resident's written plan of care; 42 U.S.C.
§ 1396r(b)(4)(A)(iv);
• A nursing facility must provide services and activities
to attain or maintain the highest practicable physical, mental and
psychosocial well-being of each resident in accordance with a written
plan of care which (C) is periodically reviewed and revised after
each assessment under paragraph (3)—such assessment must be
conducted (i) promptly upon (but not later than 14 days after the
date of) admission for each individual admitted on or after October
1, 1990; (ii) the nursing facility must examine each resident no
less frequently than once every three months and, as appropriate,
revise the resident's assessment to assure the continuing accuracy
of the assessment; (D) the results of such an assessment shall be
used in developing, reviewing and revising the resident's plan of
care under paragraph (2); 42 U.S.C. § 1396r(b)(2)(C), (b)(3)(C)(i)(l)
& (ii), (b)(3)(D), (b)(4)(B);
• To the extent needed to fulfill all plans of care described
in paragraph (2), a nursing facility must provide (or arrange the
provision of) (ii) medically related services to attain or maintain
the highest practicable physical, mental, and psychosocial well
being of each resident; (v) an ongoing program, directed by qualified
professional, of activities designed to meet the interests and the
physical, mental and psychosocial well-being of each resident; 42
U.S.C. § 1396r(b)(4)(A)(ii) & (v);
• A nursing facility must maintain clinical records on all
residents, which records include the plans of care (described in
paragraph (2)) and the residents' assessments (described in paragraph
(3)), as well as the results of any preadmission screening conducted
under subsection (e)(7) of this section; 42 U.S.C. § 1396r(b)(6)(C);
• The right to be free from physical or mental abuse, corporal
punishment, involuntary seclusion, and any physical or chemical
restraints imposed for the purposes of discipline or convenience
and not required to treat the resident's medical symptoms, (D) Psycho-pharmacologic
drugs may be administered only on the orders of a physician and
only as part of a plan designed to eliminate or modify 525*525 the
symptoms for which the drugs are prescribed and only if, at least
annually an independent, external consultant reviewed the appropriateness
of the drug plan of each resident receiving such drugs; 42 U.S.C.
§ 1396r(c)(l)(A)(ii) & (c)(1)(D).
We are therefore presented with the question whether these various
provisions of the FNHRA[2] give Medicaid recipients like Melviteen
Daniels rights whose violation can be remedied under § 1983.
As noted, we answer in the affirmative.
IV.
A.
42 U.S.C. § 1983 is a vehicle for imposing liability against
anyone who, under color of state law, deprives a person of "rights,
privileges, or immunities secured by the Constitution and laws."
Maine v. Thiboutot, 448 U.S. 1, 4-6, 100 S.Ct. 2502, 65 L.Ed.2d
555(1980); see also Three Rivers Center for Independent Living v.
Housing Authority of City of Pittsburgh, 382 F.3d 412, 421-22 (3d
Cir.2004). However, a plaintiff must assert the violation of a federal
right—not merely a violation of a federal law—to seek
redress. See Blessing, 520 U.S. at 340, 117 S.Ct. 1353; Golden State
Transit Corp. v. Los Angeles, 493 U.S. 103, 106, 110 S.Ct. 444,
107 L.Ed.2d 420 (1989). If a plaintiff alleges a violation of a
federal right as the basis of a § 1983 action, we must determine
whether the applicable federal statute confers an individual right.
Blessing, 520 U.S. at 340, 117 S.Ct. 1353. That is to say, whether
a particular federal statute creates a federal right of the kind
enforceable by an action for damages under § 1983 requires
that we determine "whether or not Congress intended to confer
individual rights upon a class of beneficiaries." Gonzaga Univ.,
536 U.S. at 285, 122 S.Ct. 2268. A plaintiff bears the burden of
establishing that a statute gives rise to federal rights enforceable
through § 1983. Blessing, 520 U.S. at 342, 346, 117 S.Ct. 1353;
City of Rancho Palos Verdes, California v. Abrams, 544 U.S. 113,
120, 125 S.Ct. 1453, 161 L.Ed.2d 316 (2005).
B.
In Blessing, the Supreme Court set forth three factors courts should
use to determine whether a statute conferred a federal right upon
an individual: first, courts should determine whether Congress intended
that the statutory provision in question benefits the plaintiff;
second, courts should decide whether the right asserted is so "vague
and amorphous" that its enforcement would strain judicial competence;
and lastly, courts should determine whether the statute unambiguously
imposes a binding obligation on the states. 520 U.S. at 340-41,
117 S.Ct. 1353. The 526*526 Supreme Court further instructed that
if a plaintiff successfully meets these three requirements, she
has established a rebuttable presumption that she has such a right.
However, this presumption could be rebutted if Congress "specifically
foreclosed a remedy under § 1983." Gonzaga Univ., 536
U.S. at 285, 122 S.Ct. 2268.
Although the Blessing analysis may appear straightforward, subsequent
Supreme Court decisions have suggested that there are fine distinctions
in its application, requiring us to look not only at the statutory
text, but also to congressional intent. In Gonzaga Univ., the Supreme
Court applied the Blessing test, but noted that there had been some
confusion in that test's interpretation. Id. at 283, 122 S.Ct. 2268.
The Supreme Court noted that Blessing had come to mean that a plaintiff
could enforce a statute under § 1983 "so long as the plaintiff
falls within the general zone of interest that the statute is intended
to protect, something less than what is required for a statute to
create rights enforceable directly from the statute itself under
an implied private right of action." Id. The Supreme Court
clarified the Blessing analysis, stating that "we now reject
the notion that our cases permit anything short of an unambiguously
conferred right to support a cause of action under § 1983."
Id. Further the Supreme Court outright "reject[ed] the notion
that our implied right of action cases are separate and distinct
from our § 1983 cases." Id. The Supreme Court advised
that when determining whether a right of action is implied in a
particular statutory provision, we should be guided by "the
determination of whether a statute confers rights enforceable under
§ 1983." Id. Thus, Gonzaga Univ. clarified the Blessing
analysis by adding the requirement that any such right be unambiguously
conferred by Congress.
We applied the Blessing analysis, as redefined by Gonzaga Univ.,
in Sabree, supra. We recently reviewed our Sabree decision in Newark
Parents Assoc. et al. v. Newark Pub. Schl., 547 F.3d 199 (3d Cir.
2008), and will briefly summarize Sabree again here because it is
the foundation for our holding in this appeal.
In Sabree, we were asked to decide whether a provision of the Medicaid
statute that required states to provide medical services from an
intermediate care facility "with reasonable promptness"
to developmentally disabled persons, unambiguously conferred private
rights upon them.
We first determined the characteristics of an unambiguously conferred
right. We held that to confer such a right, Gonzaga Univ. required
a statute to contain rights-creating language which clearly imparts
an individual entitlement with an "unmistakable focus on the
benefitted class." Sabree, 367 F.3d at 187 (quoting Blessing,
520 U.S. at 343, 117 S.Ct. 1353 and Gonzaga Univ., 536 U.S. at 287,
122 S.Ct. 2268). By way of example, we noted in Sabree that the
Medicaid Act required that a "state plan for medical assistance
... must provide medical assistance ... to ... all [eligible] individuals"
and that "such assistance shall be furnished with reasonable
promptness to all eligible individuals." Id. at 182, n. 4,
189. We concluded that the statutory language requiring that a state
"must provide" medical services with reasonable promptness
met all three factors of the Blessing analysis because the plaintiffs
were the intended beneficiaries of the statute, the rights the plaintiffs
sought to enforce were specific and enumerated and that the obligation
imposed upon the states was unambiguous and binding. Id. at 189.
Although the plaintiffs in Sabree satisfied the Blessing test,
we examined the statutes further to ensure that the unambiguous
rights asserted were conferred 527*527 upon the plaintiffs, and
not that the plaintiffs merely fell within a "general zone
of interest that the statute is intended to protect." Id. at
189-90. We noted that the statutory requirement that a plan "must
provide" services was analogous to the "no person shall"
language determined by the Supreme Court in Gonzaga Univ. to be
an example of rights-creating language. Additionally, we determined
that the statutory language was "mandatory rather than precatory."
Id. at 190. Finally, we noted that the relevant provisions provided
that such entitlements be made available to "all eligible individuals"
and, as such, did not focus on the "entity regulated rather
than the individuals protected." Id. We therefore concluded
that the plain meaning of the statutory text clearly delineated
rights that were both unambiguous and personal in nature, such that
personal rights were indeed intended by Congress.[3]
As we see it, the Supreme Court's decision in Gonzaga Univ., as
interpreted by our own opinions in Sabree and Newark Parents Assoc.
require us to first apply the three components of the Blessing test
and then, to inquire into whether the statutes in question unambiguously
confer a substantive right.
C.
There is no question that the statutory provisions under which
Grammer raises her claims meet the first Blessing factor. As both
a Medicaid recipient and a nursing home resident, Grammer's mother
was an intended beneficiary of 42 U.S.C. § 1396r. The Court
of Appeals for the Second Circuit also has held as much. In Concourse
Rehabilitation & Nursing Center Inc. v. Whalen, 249 F.3d 136
(2d Cir. 2001), the Court of Appeals specifically noted that Medicaid
recipients were the intended beneficiaries of § 1396r. In that
case, nursing homes sued the New York Department of Health, alleging
violations of the Medicaid program and the FNHRA. The Court of Appeals
reviewed § 1396r and determined that it did not entitle nursing
homes to bring suit. Instead, the Court of Appeals held that the
provisions of 42 U.S.C. § 1396r and its accompanying regulations
requiring nursing facilities to "provide ... specialized rehabilitative
services to attain or maintain the highest practicable physical,
mental and psychosocial well-being of each resident" demonstrate
clearly from the plain language of the provision that it was not
"intend[ed] to benefit the putative plaintiff[s]"—the
health care providers in that case. 249 F.3d at 143-44. See also
Wilder, 496 U.S. at 509, 110 S.Ct. 2510. Instead, the Court of Appeals
found that the provisions were "obviously intended to benefit
Medicaid beneficiaries." Id. at 144. We agree with this reasoning.
The provisions are obviously intended to benefit Medicaid beneficiaries
and nursing home residents, not the nursing homes themselves.
Moreover, unlike the statutes at issue in Gonzaga Univ. and Blessing,
the FNHRA are directly concerned with "whether the needs of
any particular person have been satisfied." Blessing, 520 U.S.
at 343, 117 S.Ct. 1353, quoted in Gonzaga Univ., 536 U.S. at 288,
122 S.Ct. 2268. In Blessing, for example, the Supreme Court pointed
out that the statute at issue provided a "yardstick for the
Secretary to measure... systemwide performance" of a state
program. Id. at 343, 117 S.Ct. 1353. Here, 528*528 in contrast,
the FNHRA' concern is whether each individual placed in a nursing
home receives proper care.
The second Blessing factor is also met here. The rights Grammer
asserts are not so "vague or amorphous" that their enforcement
would strain judicial resources. The various rights are clearly
delineated by the provisions at issue. The repeated use of the phrases
"must provide," "must maintain" and "must
conduct" are not unduly vague or amorphous such that the judiciary
cannot enforce the statutory provisions. These provisions make clear
that nursing homes must provide a basic level of service and care
for residents and Medicaid patients.
Finally, the language unambiguously binds the states and the nursing
homes as indicated by the repeated use of "must." This
language is mandatory in nature and easily satisfies the third factor
of the Blessing test.
D.
As we held in Sabree, supra, meeting Blessing's "zone of interest"
factor is not enough. In Gonzaga Univ., the Supreme Court cautioned
us to be careful to ensure that the statute at issue contains "rights-creating
language" and to make certain that the language is phrased
in terms of the persons benefitted, not in terms of a general "policy
or practice." 536 U.S. at 287, 122 S.Ct. 2268. While Blessing
stands for the proposition that violations of rights, not laws,
give rise to § 1983 actions, nevertheless, the Gonzaga Univ.
court warned against interpreting Blessing "as allowing plaintiffs
to enforce a statute under § 1983 so long as the plaintiff
falls within the general zone of interest that the statute is intended
to protect." Gonzaga Univ., 536 U.S. at 283, 122 S.Ct. 2268.
Therefore, nothing short of an "unambiguously conferred [individual]
right" as demonstrated through "rights-creating language"
can support a § 1983 action. Id. at 283, 290, 122 S.Ct. 2268.
The Supreme Court explained that rights-creating language must
clearly impart an individual entitlement, and have an "unmistakable
focus on the benefitted class." Id. (quoting Blessing, 520
U.S. at 343, 117 S.Ct. 1353; Cannon v. Univ. of Chicago, 441 U.S.
677, 690-93, 99 S.Ct. 1946, 60 L.Ed.2d 560, (1979)). The Supreme
Court next demonstrated the type of rights-creating terms that unambiguously
confer enforceable rights by looking to its implied right of action
cases. Id. at 283-84, 122 S.Ct. 2268. To exemplify rights-creating
language, the Supreme Court looked to the language of Title VI of
the Civil Rights Act of 1964, stating that "No person in the
United States shall ... be subjected to discrimination under any
program or activity receiving Federal financial assistance"
on the basis of race, color or national origin, and Title IX of
the Education Amendments of 1972, stating "No person in the
United States shall, on the basis of sex ... be subjected to discrimination
under any education program or activity receiving Federal financial
assistance." Id. at 284 n. 3, 122 S.Ct. 2268 (quoting 42 U.S.C.
§ 2000d (emphasis added); 20 U.S.C. § 1681(a)).
Comparing the language of the statute at issue in Gonzaga Univ.—the
Family Educational Rights and Privacy Act of 1974 (FERPA)—to
the rights-creating language used in Title VI and Title IX, the
Court found that FERPA's provisions, stating "no funds shall
be made available" to any "educational agency or institution"
which has a prohibited "policy or practice," were in stark
contrast to Title VI and Title IX. Id. at 283, 122 S.Ct. 2268.
Gonzaga Univ. found that the specific mandatory, individually focused
language of Titles VI and IX confer individual rights, while the
programmatic, aggregate 529*529 focus of FERPA's language merely
created law applicable to the states. We must, therefore, compare
the language of the statutes at issue in Grammer's case, namely,
42 U.S.C. § 1396r, et seq. to Title VI, Title IX, and FERPA,
to determine whether Congress used rights-creating language before
proceeding to the remaining steps in the Blessing analysis.
In Sabree, we compared 42 U.S.C. §§ 1396a(a)(8), 1396a(a)(10),
and 1396d(a)(15) to Title VI, Title IX and FERPA, and found that
those sections of the Medicaid Act did create individually enforceable
rights. Determining whether Congress used rights-creating language
when drafting § 1396a(a)(8), we found that in requiring states
that accept Medicaid funding to provide ICF/MR services with reasonable
promptness, Congress conferred specific entitlements on individuals
"in terms that could not be clearer." 367 F.3d at 190
(quoting Gonzaga Univ., 536 U.S. at 280, 122 S.Ct. 2268). Specifically,
§ 1396a(a)(8) provides, in pertinent part, "[a] State
plan for medical assistance must... provide that all individuals
wishing to make application for medical assistance under the plan
shall have opportunity to do so, and that such assistance shall
be furnished with reasonable promptness to all eligible individuals."
Particularly relevant to the existence of rights-creating terms
in Sabree was our determination that the terms of the statutory
provisions at issue were "mandatory rather than precatory,"
they had an "individual focus" on "all eligible individuals,"
and even though they inform the state of its compliance requirements,
the terms do not focus on the "entity regulated rather than
the individuals protected." Id. at 190.
The FNHRA are replete with rights-creating language. The amendments
confer upon residents of such facilities the right to choose their
personal attending physicians, to be fully informed about and to
participate in care and treatment, to be free from physical or mental
abuse, to voice grievances and to enjoy privacy and confidentiality.
42 U.S.C. § 1396r(c)(l)(A). Nursing homes are required to care
for residents in a manner promoting quality of life, provide services
and activities to maintain the highest practicable physical, mental
and psychosocial well-being of residents, and conduct comprehensive
assessments of their functional abilities. 42 U.S.C. § 1396r(b)(l),
(2) & (3). Further, the statute specifically guarantees nursing
home residents the right to be free from physical or mental abuse,
corporal punishment, involuntary seclusion, and any physical or
chemical restraints imposed for the purposes of discipline or convenience
and not required to treat their medical symptoms. 42 U.S.C. §
1396r(l)(A)(ii).
As they were in Sabree, the provisions at issue here are mandatory.
For example, by stating "a nursing home must care for its residents
in such a manner and in such an environment as will promote maintenance
or enhancement of the quality of life of each resident," the
mandatory nature of the provision is apparent. 42 U.S.C. §
1396r(b)(l)(A) (emphasis added). Another provision of the FNHRA
provides that "a nursing facility must provide services and
activities to attain or maintain the highest practicable physical,
mental and psychosocial well-being of each resident." 42 U.S.C.
§ 1396r(b)(2)(A) (emphasis added). These provisions, as well
as the others under which Grammer brought claims, are strikingly
similar to those at issue in Sabree. In Sabree, we found the phrase
"a state plan of medical assistance must provide," to
be rights-creating. See Sabree, 367 F.3d at 190.
Additionally, the FNHRA use the word "residents" throughout.
Thus, its provisions are clearly "phrased in terms of the 530*530
persons benefitted." See Gonzaga Univ., 536 U.S. at 284, 122
S.Ct. 2268 (quoting Cannon, 441 U.S. at 692 n. 13, 99 S.Ct. 1946).
Moreover, no provision uses the word "resident" simply
in passing. Instead, the FNHRA are constructed in such a way as
to stress that these "residents" have explicitly identified
rights, such as "the right to be free from physical or mental
abuse, corporal punishment, involuntary seclusion, and any physical
or chemical restraints imposed for the purposes of discipline or
convenience and not required to treat the resident's medical symptoms."
42 U.S.C. § 1396r(c)(l)(A) (emphasis added). These statutory
provisions are, in other words, "concerned with `whether the
needs of any particular person have been satisfied,'" not solely
with an aggregate institutional policy and practice. Id. at 288,
122 S.Ct. 2268 (quoting Blessing, 520 U.S. at 343, 117 S.Ct. 1353).
We are not concerned that the provisions relied upon by the Appellant
are phrased in terms of responsibilities imposed on the state or
the nursing home. The plain purpose of these provisions is to protect
rights afforded to individuals. See e.g., Johnson v. Housing Auth.
of Jefferson Parish, 442 F.3d 356, 360, 363 (5th Cir.2006) (finding
a right of action by low-income families even though the provision
at issue required payments be made to landlords as opposed to being
made to the intended beneficiaries of the statute, low-income families).
Further, the statutory provisions relied upon by the Appellant are
distinguishable from the FERPA provision the Supreme Court found
to be "two steps removed from the interests of individual students
and parents." Gonzaga Univ., 536 U.S. at 287, 122 S.Ct. 2268.
The FERPA provision at issue in Gonzaga Univ. concerned policies
and practices that must be in place to obtain federal funding. In
this case, the provisions under review directly impact the individual
in that they determine the level of care and service an individual
is to receive. The various provisions of the FNHRA at issue here
place an "unmistakable focus on the benefitted class"—Medicaid
recipients who are residents of Medicaid participating nursing homes.
See Gonzaga Univ., 536 U.S. at 284, 122 S.Ct. 2268.
The legislative history of the enactment of the FNHRA is likewise
compelling when determining Congressional intent to create a right
of action. In Rolland, 318 F.3d at 45-47, the Court of Appeals for
the First Circuit examined the legislative history of the FNHRA
at length, and it bears repeating here:
In 1987, Congress passed the NHRA, part of the Omnibus Budget
Reconciliation Act, as a response to th[e] apparently widespread
problem [of mentally ill and mentally retarded individuals being
placed in nursing homes that were unable to provide the necessary
and appropriate services and treatments]. The report from the House
of Representatives began:
"Substantial numbers of mentally retarded and mentally ill
residents are inappropriately placed, at Medicaid expense, in [skilled
nursing facilities] or [intermediate care facilities]. These residents
often do not receive the active treatment or services that they
need. A recent [Government Accounting Office] review of mentally
retarded residents in [these facilities] in Connecticut, Massachusetts,
and Rhode Island concluded that the active treatment needs of these
individuals were generally not being identified or met."
The NHRA attempted to ensure that those placed in nursing homes
actually needed nursing care and that once residing in a nursing
home, individuals would receive the other kinds of treatment they
needed. Towards that end, the NHRA established requirements for
531*531 nursing homes in their care of mentally retarded [and mentally
ill] residents, 42 U.S.C. § 1396r(b); instituted specific enumerated
rights for residents, id. § 1396r(c); and required states to
screen and provide services to mentally retarded [and mentally ill]
residents, id. § 1396r(e).
Rolland, 318 F.3d at 46 (quoting H.R.Rep. No. 100-391, pt. 1, at
459, reprinted in 1987 U.S.C.C.A.N. 2313-279).[4] In concluding
that § 1396r created a private right of action, the Court of
Appeals in Rolland found that
[t]he NHRA speaks largely in terms of the persons intended to
be benefitted, nursing home residents.... The statute contains a
laundry list of rights to be afforded residents and commands certain
state and nursing home activities in order to ensure that residents
receive necessary services. In short, after clearly identifying
those it seeks to protect, the statute goes on to endow them with
particular rights, utilizing "rights-creating" language.
Rolland, 318 F.3d at 53.
Just as we held in Sabree, we hold here that the specific rights
conferred by the FNHRA could not be clearer. Indeed, the rights-creating
language here may be even stronger than the language at issue in
Sabree as Congress explicitly included the word "rights"
when identifying the expectations and entitlements of nursing home
residents. See 42 U.S.C. § 1396r(c)(l)(A). Viewing the terms
of the FNHRA next to Title VI, Title IX, FERPA, and Medicaid's reasonable
promptness provisions, through the lens of Gonzaga Univ., we hold
that Congress did use rights-creating language sufficient to unambiguously
confer individually enforceable rights.
E.
We have one final step in our analysis. The Supreme Court instructs
that we are to examine not only the text of the statute at issue,
but also its structure to satisfy ourselves that it is sufficiently
rights-creating. See Gonzaga Univ., 536 U.S. at 286, 122 S.Ct. 2268;
see also Sabree, 367 F.3d at 191. As we did in Sabree, we look beyond
the provisions identified by the Appellant and instead change our
focus to the structural elements of Title XIX as a whole. The scenery
has not changed since our opinion in Sabree. We recognize that provisions
within the Medicaid Act speak in terms of an "agreement between
Congress and a particular state." See Sabree, 367 F.3d at 191.
Other provisions, 42 U.S.C. § 1396(c) for example, empower
the Secretary of Housing and Human Services to suspend payments
to a state if it fails to "comply substantially" with
the title's requirements. These provisions gave us pause in Sabree,
and they continue to cause us some reticence today. See Sabree,
367 F.3d at 191; Newark Parents Ass'n., 547 F.3d at 211-12. Sabree
counsels, however, that we must consider the existence of rights-creating
language in other relevant statutory provisions of Title XIX. Sabree,
367 F.3d at 192. We found that the existence of other provisions
(Medicaid's appropriations and enforcement provisions, for example)
could not "neutralize" the rights-creating language that
was found in the specific provisions 532*532 at issue. Id. Thus,
Sabree created a test whereby courts should balance the strength
of the specific language of the statutory provisions at issue against
the larger structural elements of the statute.[5] The language used
throughout the FNHRA is explicitly and unambiguously rights-creating,
despite the countervailing elements of the statute. The larger statutory
structure, therefore, does not neutralize the rights-creating language
contained throughout the FNHRA.
F.
Accordingly, the various provisions of the FNHRA under which Grammer
sues do confer individual rights that are presumptively enforceable
through § 1983. The burden shifts to the Kane Center to rebut
the presumption of an enforceable right under § 1983. Sabree,
367 F.3d at 193. The Kane Center has not satisfied its burden here,
as it fails to argue that Congress precluded individual enforcement
of the rights conferred by the FNHRA in any way. Moreover, our independent
examination and assessment of the Medicaid Act disclosed no evidence
of congressional intent to preclude enforcement of the rights created
by the various provisions of this statute. This is so because no
provision contains express terms to that effect and no comprehensive
remedial scheme is established by the provisions at issue. See Gonzaga
Univ., 536 U.S. at 284-85, 122 S.Ct. 2268; Blessing, 520 U.S. at
341, 117 S.Ct. 1353. As we held in Sabree, "Title XIX contains
no provisions explicitly precluding individual actions." 367
F.3d at 193.
V.
In sum, it is clear enough that Congress intended to create individual
rights in drafting and adopting § 1396r, and that Appellant's
mother falls squarely within the zone of interest these provisions
are meant to protect. Hence, we hold that the statutory provisions
which Grammer seeks to enforce under § 1983 satisfy both Gonzaga
Univ.'s insistence on rights-creating language as evidence of Congressional
intent and Blessing's remaining factors. We will reverse the order
of the District Court and remand the cause for further proceedings.
STAFFORD, District Judge, dissenting.
Because I cannot agree that the district court erred in granting
the defendant's motion to dismiss, I must respectfully dissent.
The district court determined—I believe correctly—that
Appellant may not sue Appellee, a nursing home, for violations of
42 U.S.C. § 1396r under 42 U.S.C. § 1983.
The Medicaid Act (the "Act"), which contains the statutory
provisions allegedly violated by Appellee, is Spending Clause legislation.
Spending Clause legislation rarely confers upon funding beneficiaries
the right to bring private actions "before thousands of federal-
and state-court judges" against funding recipients. Gonzaga,
536 U.S. at 290, 122 S.Ct. 2268; Newark Parents Ass'n, 547 F.3d
at 205, 214 (this circuit's latest foray into the rights-creating-language
thicket). The Supreme Court has been explicit: "[U]nless Congress
`speak[s] with a clear voice,' and manifests an `unambiguous' intent
to confer individual rights, federal funding provisions provide
no basis for private enforcement by § 1983." Gonzaga,
536 U.S. at 280, 122 S.Ct. 2268 (quoting Pennhurst State Sch. and
Hosp. v. Halderman, 451 U.S. 1, 17, 101 S.Ct. 1531, 67 L.Ed.2d 694).
In section 1396r, Congress did not speak 533*533 with a "clear
voice" or manifest an "unambiguous intent" to provide
a basis for private enforcement of funding requirements under section
1983.
The Supreme Court in Gonzaga emphasized that "[s]tatutes that
focus on the person regulated rather than the individuals protected
create no implication of an intent to confer rights on a particular
class of persons." Gonzaga, 536 U.S. at 287, 122 S.Ct. 2268
(internal quotations marks and citations omitted). In Newark Parents
Ass'n, this court likewise recognized that "where a statute
focuses on the entity to be regulated ... and the benefit to be
conferred on an individual is secondary, i.e., it flows to individuals
as a result of the regulation of the States and [recipient] agencies,
Congress has not created the type of individual entitlement that
characterize [sic] the unambiguous intent to create personal rights."
Newark Parents Ass'n, 547 F.3d at 213.[6]
Under the Medicaid Act, the federal government directs funding
to states to assist them in providing medical assistance to certain
eligible individuals. To receive federal funds under the Medicaid
Act, states are required to administer low-income medical assistance
programs pursuant to "State plans" approved by the Secretary
of Health and Human Services. The Act sets forth detailed requirements
for state plans. Among many other things, the Act provides that
"[a] State plan for medical assistance must ... provide...
that any nursing facility receiving payments under such plan must
satisfy all the requirements of subsections (b) through (d) of section
1396r." 42 U.S.C. 1396a(a)(28)(A). Section 1396r lists the
requirements that nursing facilities—as recipients of federal
funding—must meet relating to the provision of services to
its Medicaid patients. Importantly, in each of the provisions in
subsections (b) through (d), namely, subsections (b)(l)-(8), (c)(l)-(8)
and (d)(l)-(4), Congress began by stating: "The nursing facility
must ..." In each case, the focus is on what the nursing facility
must do in return for federal funds; the focus is not on the individuals
to whom the benefit of each provision flows.[7]
534*534 In Gonzaga, the Supreme Court noted that its "more
recent decisions ... have rejected attempts to infer enforceable
rights from Spending Clause statutes." Id. at 281, 122 S.Ct.
2268. Whatever Sabree may say as to section 1396a, I do not agree
that Congress intended to confer upon nursing home residents the
right to invoke section 1983 to sue individual nursing homes for
alleged violations of the non-monetary service requirements set
forth in section 1396r. The district court properly dismissed the
case, and we should affirm.
[*] Honorable William H. Stafford, Jr., Senior District Judge for
the United States District Court for the Northern District of Florida,
sitting by designation.
[1] This federal legislation comes by its common name "OBRA"
through the legislative process. Congress, then and now, usually
completes a huge measure of its budgetary and substantive work in
one large bill. The bill accomplishing that function in 1987 was
entitled the Omnibus Budget Reconciliation Act of 1987 or "OBRA
'87." The separate Federal Nursing Home Reform Act together
with many other separate bills were "rolled into" one
bill to insure final passage of all the elements. Some courts have
referred to the statutory provisions at issue herein as the Federal
Nursing Home Reform "Act." See e.g. Blue v. Koren, 72
F.3d 1075 (2d Cir.1995). Other courts refer to these provisions
collectively as the Federal Nursing Home Reform "Amendments."
See e.g. Grant ex rel. Family Eldercare v. Gilbert, 324 F.3d 383
(5th Cir. 2003). We find the designation "amendments"
a more accurate reflection of the legislative history.
[2] Residents of nursing homes cannot directly sue to enforce compliance
with federal standards. The statutes at issue in this case do not
expressly authorize private causes of action to enforce their provisions
and the parties do not dispute this. Federal laws that do not explicitly
authorize private causes of action may do so implicitly. Furthermore,
actions for violations of federal law under 42 U.S.C. § 1983
are "presumptively available" against individuals acting
under color of state law. Livadas v. Bradshaw, 512 U.S. 107, 133,
114 S.Ct. 2068, 129 L.Ed.2d 93 (1994). As we have indicated, "the
distinction between implied private rights of action and §
1983 private rights of action rests not in the articulation of rights,
but in the availability of a remedy." Sabree ex rel. Sabree
v. Richman, 367 F.3d 180, 188 n. 17 (citing Gonzaga Univ., 536 U.S.
at 285, 122 S.Ct. 2268). Further, "we take it as a given that
when seeking redress under § 1983 for violation of a statutory
right, a plaintiff need not establish that Congress intended to
confer a remedy in addition to that right." Id. at 183 n. 7.
Section 1983 itself provides the remedy. See e.g., Gonzaga Univ.,
536 U.S. at 284, 122 S.Ct. 2268.
[3] The Courts of Appeal for the First, Fourth, Fifth and Ninth
Circuits have all held that the same Medicaid provisions we considered
in Sabree confer individual rights. Bryson v. Shumway, 308 F.3d
79, 88-89 (1st Cir.2002); Doe v. Kidd, 501 F.3d 348, 356 (4th Cir.2007);
S.D. ex rel. Dickson v. Hood, 391 F.3d 581, 603 (5th Cir.2004);
Watson v. Weeks, 436 F.3d 1152, 1155 (9th Cir.2006).
[4] We recognize that the Supreme Court cautioned that we should
consider specific statutory provisions as opposed to a statute as
a whole in determining whether an enforceable right exists. Blessing,
520 U.S. at 342-43, 117 S.Ct. 1353. Nonetheless, courts often consider
the legislative history of the entire statute in determining Congressional
intent. See, e.g., Wilder, 496 U.S. at 516-17, 110 S.Ct. 2510; Rabin,
362 F.3d at 196-97 ("[T]he interpretation given to the statute
must be consistent with the congressional purpose for enacting it.")
(citing Holloway v. U.S., 526 U.S. 1, 9, 119 S.Ct. 966, 143 L.Ed.2d
1 (1999)).
[5] By comparison, we determined that the "less-than rights-creating
language" found in Newark Parents Ass'n. was neutralized by
the overall structure of the No Child Left Behind Act, 20 U.S.C.
§ 6301 et seq. 547 F.3d at 211-12.
[6] In Gonzaga, 536 U.S. at 285, 122 S.Ct. 2268, the Court explained
that "[a] court's role in discerning whether personal rights
exist in the § 1983 context should ... not differ from its
role in discerning whether personal rights exist in the implied
right of action context." In the implied right of action context,
federal courts have consistently held that no implied private right
of action exists under the Medicaid Act, OBRA, or FNHRA. See, e.g.,
Prince v. Dicker, 29 Fed.Appx. 52, 54-55 (2d Cir.2002) (holding,
with no discussion, that 42 U.S.C. § 1396r did not confer a
private right of action that could be enforced against a private
nursing home); Brogdon v. Nat'l Healthcare Corp., 103 F.Supp.2d
1322, 1330-32 (N.D.Ga.2000) (finding that Congress did not intend
to authorize nursing home residents to file suit against nursing
facilities to enforce the section 1396r standards required for participation
in the Medicaid program); Sparr v. Berks County, 2002 WL 1608243
*2-3 (E.D.Pa. July 18, 2002) (dismissing action brought by executor
of patient's estate against the nursing home for violations of the
FNHRA, finding that although the statute was enacted to benefit
the plaintiff, there was nothing in the legislative purpose or history
to suggest that Congress intended to create a private right of action).
[7] In Newark Parents Ass'n, this court compared the language used
in the No Child Left Behind Act ("NCLBA") (the statute
at issue in Newark) with the language used in the two exemplars
of rights-creating language cited by the Gonzaga Court (Title VI
of the Civil Rights Act of 1964 and Title IX of the Education Amendments
of 1972), stating as follows:
[T]he terms used in the relevant provisions of the NCLBA ... are
materially distinguishable from the language found in Titles VI
and IX. The command used in those statutes—"No person
... shall ... be subjected to discrimination"—makes its
one and only subject a "person." In the NCLBA, there are
two subjects: the primary subject is always the State and the "local
educational agency," while "the parents of each student"
are the secondary subject—they benefit from the provision but
only as a result of regulation imposed upon the State and its actors.
Newark Parents Ass'n, 547 F.3d at 210.
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