                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-30-2009

Grammer v. John J Kane Regional
Precedential or Non-Precedential: Precedential

Docket No. 07-2358




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                                              PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT
                     ___________

                       No. 07-2358
                       ___________

       SARAH GRAMMER, as Administratrix of the
         Estate of Melvinteen Daniels, Deceased,

                                  Appellant

                             v.

 JOHN J. KANE REGIONAL CENTERS - GLEN HAZEL
                  ___________

      On Appeal from the United States District Court
         for the Western District of Pennsylvania

                   (D.C. No. 06-cv-00781)
      District Judge: The Honorable Gary L. Lancaster
                       ___________

                 ARGUED MAY 20, 2008

    BEFORE: SMITH and NYGAARD, Circuit Judges,
          and STAFFORD,* District Judge.




                  (Filed on June 30, 2009)
                        ___________




      *.
         Honorable William H. Stafford, Jr., Senior District
Judge for the United States District Court for the Northern
District of Florida, sitting by designation.
D. Aaron Rihn, Esq. (Argued)
Robert F. Daley, Esq.
Robert Peirce & Associates
707 Grant Street
2500 Gulf Tower
Pittsburgh, PA 15219
       Counsel for Appellant


Michael R. Lettrich, Esq. (Argued)
Meyer, Darragh, Buckler, Bebenek & Eck
600 Grant Street
U.S. Steel Tower, Suite 4850
Pittsburgh, PA 15219
       Counsel for Appellee

                         ___________

                 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 (2002) (citing
Alexander v. Sandoval, 532 U.S. 275-288-89 (2001)). Further,
we conclude that § 1983 provides the proper avenue for relief
because the Appellee has failed to demonstrate that Congress

                               2
foreclosed that option by adopting another, more comprehensive
enforcement scheme. See Gonzaga Univ., 536 U.S. at 284.
                                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).

                                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



                                 3
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




                                4
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 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


       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 1018 (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.



                                5
    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);




                             6
•      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 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)(1)(A)(ii) &
       (c)(1)(D).

      We are therefore presented with the question whether
these various provisions of the FNHRA 2 give Medicaid


       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
                                                  (continued...)

                                7
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 (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; Golden State
Transit Corp. v. Los Angeles, 493 U.S. 103, 106 (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.
That is to say, whether a particular federal statute creates a


       2.
         (...continued)
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 (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). 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.

                                 8
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. A plaintiff
bears the burden of establishing that a statute gives rise to
federal rights enforceable through § 1983. Blessing, 520 U.S.
342, 346; City of Rancho Palos Verdes, California v. Abrams,
544 U.S. 113, 120 (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. The
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 341.

        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. 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

                                 9
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
prom ptness” 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 and Gonzaga
Univ., 536 U.S. at 287). 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

                                10
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 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.




       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 (1 st Cir. 2002); Doe v. Kidd, 502
F.3d 348, 356 (4 th Cir. 2007); S.D. ex rel. Dickson v. Hood, 391
F.3d 581, 603 (5 th Cir. 2004); Watson v. Weeks, 436 F.3d 1152,
1155 (9 th Cir. 2006).

                                11
                                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. 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, quoted in Gonzaga Univ., 536 U.S. at
288. 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. Here, 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

                               12
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.
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.
Therefore, nothing short of an “unambiguously conferred
[individual] right” as demonstrated through “rights-creating
language” can support a § 1983 action. Id. at 283, 290.

       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; Cannon v. Univ. of Chicago,
441 U.S. 677, 690-93, (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. To exemplify
rights-creating language, the Supreme Court looked to the

                              13
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
(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.

        Gonzaga Univ. found that the specific mandatory,
individually focused language of Titles VI and IX confer
individual rights, while the programmatic, aggregate 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). Specifically, §

                                14
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)(1)(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)(1), (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(1)(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)(1)(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

                                15
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 persons benefitted.” See Gonzaga Univ., 536 U.S. at 284
(quoting Cannon, 441 U.S. at 692 n.13). 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)(1)(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 (quoting
Blessing, 520 U.S. at 343).

       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 (5 th 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. 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

                                16
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.

       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 nursing

                               17
       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


       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. 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; 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 (1999)).



                                18
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)(1)(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; 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 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




                                 19
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; Blessing, 520 U.S. at 341. 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


       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.

                               20
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; 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 (quoting
Pennhurst State Sch. and Hosp. v. Halderman, 451 U.S. 1, 17).
In section 1396r, Congress did not speak 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 (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

                                21
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


       6.
          In Gonzaga, 536 U.S. at 285, 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, No. 01-7805, 29 Fed. Appx. 52, 2002 WL
226492 at *2 (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).

                                22
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)(1)-(8), (c)(1)-(8) and
(d)(1)-(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

        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. 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.




       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.

                                23
