                                      No. 96-1736


Minnesota Homecare Association,            *
Inc. CommuniCare Home Care;            *
First Respiratory Services,            *
Inc.; Kanabec County Public            *
Health; Metropolitan Visiting          *
Nurse Association; Pine to             *
Prairie Home Health Care;              *
PrairieLand Home Care, Inc.;           *
R.E.M. Health, Inc.; Saint             *
Cloud Hospital Home Care               *
Services; St. Joseph’s Hospital        *
St. Mary’s Medical Center Home         *        Appeal from the United States
Care; Samaritan Bethany Home           *        District Court for the
Health Services; Shamrock              *        District of Minnesota.
In-Home Nursing Care, Inc.;            *
Sibley County Public Health            *               [PUBLISHED]
Department,                            *
                                           *
              Appellants,                  *
                                           *
       V.                                  *
                                           *
Maria Gomez, Commissioner,                 *
State of Minnesota Department          *
of Human Services                      *
                                           *
              Appellee.                    *


                            Submitted: November 21, 1996

                                Filed:          March 14, 1997


Before BEAM and LOKEN, Circuit Judges, and MOODY,* District Judge.



PER CURIAM.

       Home health care agencies in Minnesota and the state association of
home   health    care     providers   brought    an   action   against   Minnesota's
Commissioner of the Department of Human Services ("DHS"




       *
       The Honorable James M. Moody, United States District Judge
for the Eastern District of Arkansas, sitting by designation.
or the State), claiming that the State's rate-setting methodology governing
reimbursements for home health care providers under the State’s Medicaid
program violates the statutory mandates of the Federal Medicaid Act, 42
U.S.C. § 1396 et seq.      The agencies alleged that the DHS violated §
1396a(a)(30)(A) of the Act, referred to as the “equal access” provision,
by implementing a change in the rates of payment without a mandated
consideration of its effect on efficiency, economy, quality of care and
access to services.   They further alleged that DHS violated the statute by
failing to maintain a monitoring system that assures that rates of payment
continue to meet the goals of fostering quality care and access to services
as required by the equal access provision.


       On cross motions for summary judgment, the district court1 granted
summary judgment in favor of the State, concluding that the Medicaid Act
does not require the kind of formal analysis advocated by the plaintiffs
and finding that defendant's rate-setting methodology does not violate the
Act.




       We review the district court’s granting of summary judgment de novo.
Beyerbach v. Sears Co. II, 49 F.3d 1324, 1325 (8th Cir. 1995).   After due
consideration of the undisputed facts, arguments, and exhibits submitted
by the parties, we affirm.


       The Medicaid Act mandates consideration of the equal access factors
of efficiency, economy, quality of care and access to services in the
process of setting or changing payment rates, see Arkansas Med. Soc’y, Inc.
v. Reynolds, 6 F.3d 519, 530 (8th Cir. 1993); however, it does not require
the State to utilize any prescribed method of analyzing and considering
said factors.   In




       1
       The Honorable Paul A. Magnuson, United States District
Judge for the District of Minnesota.

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the instant case, it is undisputed that the DHS had informal monitoring
procedures in effect to evaluate the operation of its Medicaid program and
to gauge the adequacy of its reimbursement rates.


     Although the DHS did not provide any formal analysis of the equal
access factors to the legislature in support of its consideration of the
1994 rate increase, the Minnesota HomeCare Association, and others lobbying
on behalf of home care providers, actively participated in the 1993
legislative session during which the rate change was considered such that
concerns of efficiency, economy, quality of care, and access to services
were before the Legislature when it determined to raise the home health
care reimbursement rates by three percent.


     Under the circumstances of this case, we find that the State’s
methodology for establishing and maintaining home health care rates under
its Medicaid program meets the requirements of 42 U.S.C. § 1396a(a)(30)(A).
 Accordingly, we conclude that summary judgment was properly entered in
favor of defendant.


LOKEN, Circuit Judge, concurring.


     Although I agree that appellants have insufficient evidence DHS
violated 42 U.S.C. § 1396a(a)(30), I write separately because I do not
believe appellants have stated a claim under § 1983.   Their cause of action
is premised on Wilder v. Virginia Hosp. Ass'n,    496 U.S. 498, 524 (1990),
in which the Supreme Court held that the Boren Amendment, § 1396a(a)(13),
created an enforceable right "to have the State adopt rates that it finds
are reasonable and adequate rates to meet the costs of an efficient and
economical health care provider."   In Suter v. Artist M., 503 U.S. 347, 359
(1992), the Court explained that Wilder turned on the fact that the Boren
Amendment "actually required the States to adopt reasonable




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and adequate rates," and "set forth in some detail the factors to be
considered in determining the methods for calculating rates."


     Like the Boren Amendment, § 1396a(a)(30) "requires each state to
produce a result, not to employ any particular methodology for getting
there."     Methodist Hosps., Inc. v. Sullivan, 91 F.3d 1026, 1030 (7th Cir.
1996).    One result -- the one providers such as appellants care about --
is the establishment of reimbursement rates that "are consistent with
efficiency, economy, and quality of care and are sufficient to enlist
enough providers so that care and services are available under the plan at
least to the extent that such care and services are available to the
general population in the geographical area."         § 1396a(a)(30(A).       That is
the result the state agency failed to produce in Arkansas Med. Soc'y, Inc.
v. Reynolds, 6 F.3d 519 (8th Cir. 1993); we therefore held that the
challenged rate violated federal law.


     Here, on the other hand, appellants do not claim that Minnesota's
rates violate § 1396a(a)(30) standards.        They challenge DHS's "methodology"
for assisting in rate development.       However, this methodology was approved
when the responsible federal agency approved Minnesota's plan.             Appellants
challenge    process,   not   result.      Their   asserted   right   is   "merely   a
procedural one," and the procedural interest they assert is so "vague and
amorphous" as to be "beyond the competence of the judiciary to enforce."
Wilder, 496 U.S. at 509-10.


     That appellants have failed to state a § 1983 cause of action is
confirmed by recalling that the Minnesota Legislature, not DHS, sets the
reimbursement rates in question.        Arkansas Medical Society involved agency
ratemaking, and our decision applied administrative law principles (perhaps
incorrectly, but that is a digression I need not pursue) in deciding that
the rates were not adopted in compliance with § 1396a(a)(30).                 Federal
courts do not undertake




                                         -4-
administrative law review of legislative action, certainly not the action
of a state legislature.    Review of statutory rates must be limited to
whether their result in the marketplace is consistent with the substantive
requirements of federal law.    Thus, appellants would engage us in an
exercise in futility -- review of the "methodology" by which DHS gathers
and feeds market information to the Legislature which the Legislature may
then   ignore when adopting statutory rates.     In reality, of course,
appellants want the federal courts to force DHS to gather data that
appellants' lobbyists can use in persuading the Legislature to raise the
rates.   That is not the proper basis for a § 1983 claim.


A true copy.


            Attest:


                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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