
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 95-1849               VISITING NURSE ASSOCIATION OF NORTH SHORE, INC., ET AL.,                                Plaintiffs, Appellees,                                          v.                               BRUCE M. BULLEN, ET AL.,                               Defendants, Appellants.                                                                                      ____________________        No. 95-1999               VISITING NURSE ASSOCIATION OF NORTH SHORE, INC., ET AL.,                               Plaintiffs, Appellants,                                          v.                               BRUCE M. BULLEN, ET AL.,                                Defendants, Appellees.                                                                                      ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                      [Hon. Nancy Gertner, U.S. District Judge]                                           ___________________                                                                                      ____________________                                Cyr, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                                                                      ____________________             Douglas H. Wilkins,  Assistant Attorney General, with  whom Scott             __________________                                          _____        Harshbarger,  Attorney  General,  and  William  L.  Pardee,  Assistant        ___________                            ___________________        Attorney General, were on brief for appellants Bullen, et al.             Richard P. Ward,  with whom John H. Mason, Susan T. Nicholson and             _______________             _____________  __________________        Ropes & Gray were on brief for appellees Visiting Nurse Association of        ____________        North Shore, Inc., et al.                                                                                      ____________________                                   August 22, 1996                                                                                      ____________________                                          2                    CYR,  Circuit Judge.   Nine  Massachusetts  health care                    CYR,  Circuit Judge.                          _____________          providers initiated  this civil rights  action under 42  U.S.C.            1983,  alleging  substantive  and procedural  violations  of  the          Medicaid Act, see 42 U.S.C.    1396a(a)(30) ("Act"), by the named                        ___          defendants,  various  officials  of  the  Massachusetts  Medicaid          program.  The district court granted partial summary judgment for          plaintiffs,  declaring defendants  in noncompliance  with certain          procedural  requirements   relating  to   the  establishment   of          reimbursement rates for health care services provided to Medicaid          recipients.   Defendants appealed.   Plaintiffs  cross-appealed a          district  court ruling  dismissing their  remaining  claims.   We          reverse  the  district  court  judgment  against  defendants  and          dismiss the cross-appeal.                                          I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    Medicaid is  a joint federal-state program  designed to          afford medical benefits to low-income individuals.  See 42 U.S.C.                                                              ___            1396 et seq.; Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 502                 __ ___   ______    ____________________          (1990).   A  State which  elects  to participate  in Medicaid  is          eligible  to receive  federal funds  only  if its  State Plan  is          approved  by  the Federal  Health  Care Financing  Administration          ("HCFA").1  Among the sixty-two  criteria for HCFA approval,  see                                                                        ___                                        ____________________               1Authority to administer the Medicaid program and promulgate          implementing   regulations  has   been  delegated   to  HCFA,   a          constituent   agency  of  the  Department  of  Health  and  Human          Services.   See  42 U.S.C.    1302; 49  Fed. Reg.  35,247, 35,249                      ___          (1984); see  also Elizabeth  Blackwell Health  Ctr. for Women  v.                  ___  ____ ___________________________________________          Knoll, 61 F.3d  170, 174 (3d Cir. 1995), cert. denied, 116 S. Ct.          _____                                    _____ ______          816 (1996).                                          3          42 U.S.C.    1396a(a)(1)-(62),  is the  so-called "equal  access"          clause:                    [A State  plan for  medical assistance  must]                    provide such methods  and procedures relating                                 _______  ___ __________                    to the utilization  of, and the payment  for,                    care and  services available  under the  plan                    (including but not limited to utilization re-                    view plans  as provided for in  section 1396b                    (i)(4)  of this title) as may be necessary to                    safeguard against unnecessary  utilization of                    such care  and services  and  to assure  that                                                  __ ______  ____                    payments  are  consistent   with  efficiency,                    ________                    economy, and quality of  care and are  suffi-                                                      ___  ______                    cient to enlist enough providers so that care                    _____ __ ______ ______ _________ __ ____ ____                    and services are available  under the plan at                    ___ ________ ___ _________  _____ ___ ____ __                    least to the  extent that such care  and ser-                    _____ __ ___  ______ ____ ____ ____  ___ ____                    vices are available to the general population                    _____ ___ _________ __ ___ _______ __________                    in the geographic area.                    __ ___ __________ ____          Id.   1396a(a)(30) (emphasis added); 42 C.F.R.   447.201(b) ("The          ___          plan  must describe  the policy  and the  methods to  be  used in          setting payment rates for each type of service . . . .").                      Massachusetts  establishes   its  reimbursement   rates          through  the  Massachusetts  Rate  Setting  Commission, with  the          approval  of the Division of  Medical Assistance of the Massachu-          setts Executive Office of Health and Human Services ("DMA").  See                                                                        ___          Mass. Gen.  L. ch. 6A,     32, 36.    Before  1991, Massachusetts          used a "cost-based" methodology  for setting reimbursement rates,          laconically described in  its approved plan as  "fixed negotiated          fee schedules."    Ostensibly, the term  "negotiated" connoted an          intent to  calculate a different rate for  each individual health                                                     ____          care provider,  based on its  reported costs for  delivering five          different  categories  of  medical  services  (skilled   nursing,          occupational, physical and  speech therapy, and  home-health-aide          services) during  the preceding  fiscal year,  adjusted for  such                                          4          uniform  factors as  inflation and  allowing  for incentive  caps          (e.g., to promote efficiency).   See Mass. Regs. Code tit. 114.3,                                           ___            3.00.                     In 1991, however, Massachusetts decided  to convert its          rate-setting methodology  to  a so-called  "class  rate"  system.          Rather than basing  reimbursement rates on the  individual health          care  provider's idiosyncratic costs  for the previous  year, DMA          decided to propose a single, fixed reimbursement rate for each of          the  five  medical  services categories,  supra,  which  would be                                                    _____          applied across-the-board  to all in-state health  care providers,          without regard to their individual costs.  During  the transition          to the new "class rate" system, a series of "interim" and "phase-          in" rates were to be utilized.                      Under  the Medicaid Act  and regulations, a  State must          meet two  conditions before  instituting "material" or  "signifi-          cant" changes in its Medicaid program:2   i.e., (1) submit a Plan          amendment to HCFA  for approval, "describ[ing]" the  methods used                                            ____________          to set  rates under  42 U.S.C.    1396a(a)(30),  see 42 C.F.R.                                                              ___          447.201(b)  (emphasis  added),  and  (2)  provide  public  notice          "describing the proposed change[s]" and "[e]xplain[ing] why  [it]           __________          is changing its  methods and standards," see id.   447.205(c)(1),                                                   ___ ___          (3) (emphasis added).                    During a  thirty-month period  beginning in  June 1991,          Massachusetts  issued public  notices  relating  to the  proposed                                        ____________________               2We  accept,  arguendo,  defendants'   concession  that  the                             ________          conversion to a  "class rate" system constituted  a "significant"          and "material" change.                                           5          change,  and published a series of regulations, setting forth the          interim,  phase-in, and final class rates in "bottom-line" dollar          figures for each  of the five medical service categories, without          detailing  the particular formula  and factors used  to arrive at          the  proposed  "bottom-line"  rate  figures.     Thereafter,  DMA          conducted a series  of public  meetings to  explain the  proposed          changes  to health care providers, including appellees, and other          interested parties.   On January  1, 1994, the final  class rates          took effect, superseding the interim and phase-in rates.                    Plaintiffs  soon   filed  this  section   1983  action,          alleging  that the DMA commissioner and  its members had violated          various substantive and procedural requirements prescribed  by 42          U.S.C.    1396a(a)(30).3   By way  of procedural  violations, the          complaint alleged that the pre-January 1994 public notices issued          by defendants contained legally  deficient "descriptions" of  the          proposed new methods  and procedures, by failing to  disclose the          formula defendants used  to arrive at either  the interim, phase-          _______          in, or  final class  rates.  The  complaint further  alleged that                                        ____________________               3As substantive  violations, plaintiffs  first alleged  that          the  State  had  adopted  its  new  methodology  solely  for  the          impermissible purpose of limiting its financial outlays under the          Medicaid  program, contrary  to 42  U.S.C.    1396a.   See Amisub                                                                 ___ ______          (PSL), Inc.  v. Colorado  Dep't of Social  Servs., 879  F.2d 789,          ___________     _________________________________          800-01  (10th  Cir. 1989),  cert.  denied, 496  U.S.  935 (1990).                                      _____  ______          Second, plaintiffs  alleged that the class rates arrived at under          the new fixed-rate methodology were so arbitrary and unreasonably          low  that  many health  care  providers would  have  no financial          incentive to participate  in the Massachusetts  Medicaid program,          thereby ensuring that  "equal access" to needed  medical services          could not  be  provided  to all  low-income  individuals  in  all          geographical areas at  the same level as  the general population.          See 42 U.S.C.   1396a(a)(30).          ___                                          6          defendants  failed  to  file  an  appropriate  amendment  to  the          Massachusetts Plan,  "describing" the  "material" changes  in its          reimbursement  rate methodology.   Plaintiffs  moved for  partial          summary judgment on their two procedural claims.                     Massachusetts filed a Plan amendment ("Amendment  003")          with  the HCFA  regional office  in March  1994.4   The amendment          indicated the proposed change from a cost-based to a "class rate"          system by deleting a single  word from the original Plan descrip-          tion:  "fixed negotiated fee schedules" now became simply  "fixed          fee schedules."   Although  a Plan  amendment is  deemed approved          unless HCFA acts within ninety days of its filing,  see 42 C.F.R.                                                              ___             430.16(a), HCFA  tolled  the  ninety-day  period  by  advising          defendants that additional  information was needed     i.e., "the                                                                 ____          methodology or formula for the  calculation of the fixed rate"             to  enable  a   final  approval   determination.     See  id.                                                                   ___  ___          430.16(a)(ii).                      Prior to the time DMA responded to the HCFA request for          information, and before any final HCFA decision on Amendment 003,          the   district  court  granted   partial  summary   judgment  for          plaintiffs  on  their  procedural  claims,  ruling  that  neither          Amendment 003  nor defendants'  pre-January  1994 public  notices          provided adequate detail on the proposed "methods and procedures"          for calculating final  class rates.  See Visiting  Nurse Ass'n of                                               ___ ________________________                                        ____________________               4Retroactive  effect    to  "the first day  of the quarter,"          viz., January 1, 1994    is accorded any "approvable plan [amend-          ___                                       __________          ment] . .  . submitted to [the HCFA] regional office."  42 C.F.R.            430.20(b) (emphasis added); see also id.   447.256(c).                                         ___ ____ ___                                          7          N. Shore,  Inc. v. Bullen, 866  F. Supp. 1444,  1459-62 (D. Mass.          _______________    ______          1994).  The court concluded that these procedural lapses rendered          the  final  class rates  invalid,  thus  obviating  any  need  to          determine  whether  the   proposed  new   methodology  or   rates          reasonably ensured compliance with the substantive requirement             "equal access" to medical care    imposed by section 1396(a)(30).          Id. at 1462.            ___                    Without  conceding  any  procedural  lapse,  defendants          issued another public notice on September 23, 1994, containing  a          detailed description  of the  methodology used  to calculate  the          "new" final class rates, which were to take effect on November 1,          1994.  In December 1994, defendants filed a second Plan amendment          with  HCFA ("Amendment 023"),  which provided  the same  level of          detail as the September 24,  1994 public notice.  Defendants then          asked the district  court to declare them in  compliance with the          procedural  requirements of section 1396a(a)(30).  Then, in April          1995, while  Amendments 003  and 023  remained pending,  HCFA was          notified  that defendants wished  to revise and  update Amendment          003  to include the  detailed information contained  in Amendment          023.   Defendants  thus  sought to  make any  HCFA Plan-amendment          approval  fully retroactive  to  January  1,  1994,  rather  than          October 1994.  See supra note 4.  Three days later, HCFA approved                         ___ _____          Amendment 003, as revised, retroactive to January 1, 1994.                    The  district court  entered final  judgment, based  on          four essential holdings.  Visiting  Nurse Ass'n of N. Shore, Inc.                                    _______________________________________          v. Bullen, No.  94-10123-NG (D. Mass. June 30, 1995).  First, the             ______                                          8          court reaffirmed its  August 1994 declaratory ruling  that defen-          dants' initial implementation of the final class rates on January          1, 1994 was invalid for failure to comply with the  public notice          and  Plan  amendment requirements  of  section  1396a(a)(30), and          directed entry of its  declaratory judgment nunc pro tunc  (i.e.,                                                      ____ ___ ____          effective September 30, 1994), the date on which its initial stay          of the judgment expired.  Id., slip op. at 2.  Second, defendants                                    ___          were  found  to   have  been  in  compliance   with  the  section          1396a(a)(30)  procedural requirements  as  of  November 1,  1994,          after  providing detailed  descriptions of  the new  rate-setting          methodology   in  their  September  1994  public  notice  and  in          Amendment  023.   Id.    Third,  the  district court  ruled  that                            ___          defendants  had never  violated  the section  1396a(a)(30) public          notice and  Plan amendment  requirements relating  to their  pre-          January  1994 imposition  of  the  interim  and  phase-in  rates,          presumably  because these  transitional rates,  unlike the  final          class rates, did not effect  a "material" or "significant" change          from pre-1991  "cost-based" methods and procedures.   Id. at 2-3.                                                                ___          Finally,  the  district  court  dismissed  plaintiffs'  remaining          claims     alleging that the  new final class rates  violated the          substantive  requirements  of  the  section  1396a(a)(30)  "equal          access" clause    since its  decision invalidating the rates  due          to  procedural defects rendered  further decision on  the alleged          substantive violations unnecessary.  Id. at 3.                                               ___                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________                                          9          A.   Standards of Review          A.   Standards of Review               ___________________                    We review  the grant of  summary judgment  de novo,  to                                                               __ ____          determine  whether   the  pleadings,   depositions,  answers   to          interrogatories, admissions on  file, and affidavits, as  well as          any reasonable  inferences therefrom,  when viewed  in the  light          most favorable to the nonmoving party,  demonstrate that there is          no genuine  issue as  to any  material fact  and that the  moving          party is entitled to judgment as a matter of  law.  See McCabe v.                                                              ___ ______          Life-Line  Ambulance Serv.,  Inc., 77 F.3d  540, 544  (1st Cir.),          _________________________________          petition for  cert. filed, 64  U.S.L.W. 3808 (U.S. May  29, 1996)          ________ ___  _____ _____          (No. 95-1929).                    Normally, we  accord  plenary review  to  the  district          court's  statutory and regulatory  interpretations.  See  Nowd v.                                                               ___  ____          Rubin, 76 F.3d 25, 26 n.1 (1st Cir. 1996).  When a federal agency          _____          charged with  administering a  particular program interprets  its          own enabling statute, however, we engage in a two-tiered review:                    "First, always, is the question whether  Con-                    gress  has  directly  spoken to  the  precise                    question at issue.  If the intent of Congress                    is clear, that is the end of the matter;  for                    the court, as  well as the agency,  must give                    effect to the  unambiguously expressed intent                    of Congress.   If, however,  the court deter-                    mines Congress has not directly addressed the                    precise question at issue, the court does not                    simply  impose its  own  construction on  the                    statute, as would be necessary in the absence                             __ _____ __ _________ __ ___ _______                    of an administrative interpretation.  Rather,                    __ __ ______________ ______________                    if the  statute is  silent or  ambiguous with                    respect to a specific issue, the question for                    the court  is whether the agency's  answer is                    based on  a permissible  construction of  the                    statute."          Heno  v. FDIC,  20 F.3d  1204, 1208-09  (1st Cir.  1994) (quoting          ____     ____                                          10          Chevron  U.S.A., Inc. v. Natural Resources Defense Council, Inc.,          _____________________    _______________________________________          467 U.S. 837, 842-43 (1984)) (emphasis added) ("Chevron").                                                            _______                    As  a federal  agency  charged  with administering  the          Medicaid program, see  supra note 1, HCFA plainly  is entitled to                            ___  _____          Chevron  deference in  its  interpretations of  the  Act and  the          _______          implementing  regulations.  See  North Carolina v.  United States                                      ___  ______________     _____________          Dep't of Health and  Human Servs., 999 F.2d 767, 769-70 (4th Cir.          _________________________________          1993) (noting that an HCFA  interpretation of its own regulations          is entitled  to "considerable  deference"); Folden  v. Washington                                                      ______     __________          State Dep't of Social and Health Servs., 981 F.2d 1054, 1058 (9th          _______________________________________          Cir. 1992); Missouri Dep't of Social Servs. v. Sullivan, 957 F.2d                      _______________________________    ________          542, 544  (8th Cir.  1992).   Indeed, when a  federal agency  has          promulgated  and published  a  regulation  pursuant  to  its  own          enabling statute, we review its interpretation of that regulation                                                                 __________          under a standard  even "more deferential . . . than that afforded          under Chevron"  to the  agency's interpretation  of the  Statute.                _______          National Med.  Enters. v.  Shalala, 43 F.3d  691, 697  (D.C. Cir.          ______________________     _______          1995); e.g. Indiana Ass'n of Homes for the Aging, Inc. v. Indiana                 ___  __________________________________________    _______          Office of  Medicaid Policy  and Planning, 60  F.3d 262,  266 (7th          ________________________________________          Cir. 1995)  (applying heightened deference  to HCFA regulations);          see  Thomas Jefferson  Univ. v.  Shalala, 114  S. Ct.  2381, 2386          ___  _______________________     _______          (1994) (deferring  to HHS interpretation of Medicare regulation);          Stinson  v. United  States, 508  U.S. 36,  44 (1993);  Johnson v.          _______     ______________                             _______          Watts Regulator Co.,  63 F.3d 1129, 1134-35 (1st  Cir. 1995); see          ___________________                                           ___          also Consarc Corp. v. United  States Treasury Dep't, 71 F.3d 909,          ____ _____________    _____________________________          915 (D.C. Cir.  1995). "[P]rovided an agency's  interpretation of                                          11          its own regulation does not violate the Constitution or a federal          statute, it  must  be  given  `controlling weight  unless  it  is          plainly  erroneous   or  inconsistent   with  the   regulation.'"          _______  _________          Stinson, 508 U.S. at 44 (citation omitted)  (emphasis added); see          _______                                                       ___          Loma  Linda Univ.  v. Schweiker,  705 F.2d  1123, 1126  (9th Cir.          _________________     _________          1983) (noting that an  HCFA interpretation of its  own regulation          is entitled to deference "if it is within the range of reasonable          meanings the words permit").           B.   Defendants' Appeal          B.   Defendants' Appeal               __________________                    Defendants  appeal  from  that  portion  of  the  final          judgment  declaring them in violation of the section 1396a(a)(30)          procedural  requirements  during  the  period  January 1  through          October 31, 1994.  Defendants claim, alternatively,  that (1) the          procedural requirements imposed  by section 1396a(a)(30)  are not          enforceable  by health care  providers, (2) even  if enforceable,          however, defendants violated neither procedural requirement cited          by plaintiffs,  (3) the district  court abused its  discretion in          August  1994 by  ruling  that  defendants  had  violated  section          1396a(a)(30), rather than staying the district  court proceedings          while  Amendment 003  remained  pending before  HCFA, or  (4) the          declaratory judgment entered by the district court granted retro-          spective relief barred by the Eleventh Amendment, see U.S. Const.                                                            ___          amend. XI.               1.   Standing: Enforceable Rights               1.   Standing: Enforceable Rights                    ____________________________                    Section 1983 enables  a private action against  a State          official to vindicate federal statutory rights enforceable by the                                          12          plaintiff.   See  42 U.S.C.    1983; Albiston v.  Maine Comm'r of                       ___                     ________     _______________          Human Servs., 7  F.3d 258, 261 (1st Cir. 1993).   Whether section          ____________          1396a(a)(30)  creates  "enforceable" procedural  and  substantive          rights                    turns on  "whether  [it]  was  intend[ed]  to                    benefit  the putative  plaintiff[s]." If  so,                    the  provision creates  an enforceable  right                    unless  it reflects  merely a  "congressional                    preference"  for a  certain  kind of  conduct                    rather  than  a  binding  obligation  on  the                    governmental unit, or unless the interest the                    plaintiff   asserts   is  "'too   vague   and                    amorphous'"  such  that  it  is "'beyond  the                    competence of the judiciary to enforce.'"           Wilder, 496 U.S. at 509 (citations omitted).5          ______                    a)   Substantive Rights6                    a)   Substantive Rights                         __________________                    Section  1396a(a)(30) arguably  describes two  distinct          substantive "equal access" rights:   the right to require a State          medicaid program to  use reimbursement  "methods and  procedures"                                        ____________________               5In January 1996,  Congress enacted 42  U.S.C.   1320a-2  (a          Medicaid  Act  provision  will "not  []  be  deemed unenforceable          because  of its inclusion  in a section  . . .  requiring a State          plan or specifying the required contents of a State plan"), which          overturned,  in part,  the  Supreme Court  decision  in Suter  v.                                                                  _____          Artist  M., 503 U.S.  347 (1992).  Before    1320a-2 was enacted,          __________          some commentators had suggested that Suter's rationale supplanted                                               _____          the traditional Wilder  test. But see, e.g., Albiston,  7 F.3d at                          ______        ___ ___  ____  ________          262-63  (holding that Suter  did not overturn  Wilder, but merely                                _____                    ______          superimposed an  additional threshold  test).   Consequently,  we          assume that Congress  intended that   1320a-2  serve to resurrect          the Wilder test, with no Suter overlay.              ______               _____               6We  address  the  enforceability   of  the     1396a(a)(30)          substantive  requirements  as  a  threshold  issue  because   the          district court judgment dismissed plaintiffs' substantive claims,          albeit  on other  grounds.   See infra  Section II.B.2(b).   Even                                       ___ _____          though  we find  those other  grounds infirm,  we may  uphold the          district court ruling on any ground supported by the record.  See                                                                        ___          Four Corners Serv. Station, Inc. v. Mobil Oil Corp., 51 F.3d 306,          ________________________________    _______________          314 (1st Cir. 1995).                                           13          which (1) will "safeguard against unnecessary utilization of such          [medical]  care and  services  and []  assure  that payments  are          consistent  with efficiency, economy,  and quality of  care," and          (2) are "sufficient  to enlist enough providers so  that care and          services are available under the plan at least to the extent that          such care and services are available to the general population in          the geographic area."  42 U.S.C.   1396a(a)(30).                     In  Wilder, the  Supreme  Court  held  that  comparable                        ______          provisions of  section 1396a(a)(13)  ("the Boren  Amendment") did          create  enforceable substantive  rights for  institutional health          care  providers.      See  Wilder,  496  U.S.  at 520.    Section                                ___  ______          1396a(a)(13) mandates that the State Plan provide:                    (A) for payment . . . of the hospital servic-                                                 ________                    es, nursing  facility services,  and services                        _________________                    in an  intermediate  care  facility  for  the                           ____________  ____  ________                    mentally  retarded  provided under  the  plan                    through  the  use  of  rates  (determined  in                                  ___  __  _____                    accordance   with   methods   and   standards                    developed by the State . . .) which the State                    finds, and  makes assurances  satisfactory to                    _____       _____ __________                    the Secretary, are reasonable and adequate to                                       __________     ________                    meet  the  costs which  must  be incurred  by                    efficiently    and    economically   operated                    facilities  in  order  to  provide  care  and                    services in conformity  with applicable State                    and  Federal laws,  regulations, and  quality                    and  safety  standards  and  to  assure  that                    individuals eligible  for medical  assistance                    have reasonable  access .  .  . to  inpatient                         __________  ______                    hospital services of adequate quality.          42 U.S.C.   1396a(a)(13) (emphasis added).                     Every  court that  has  considered whether  the  Wilder                                                                     ______          rationale likewise  applies to  the second  "equal access"  right          described  in section 1396(a)(30) has determined that health care          providers  were  intended  beneficiaries  under  both  the  Boren                                          14          Amendment and section 1396(a)(30),  since health care  providers,          as payees, obviously are affected by substantive changes in State          reimbursement schemes under  Medicaid.  See, e.g.,  Arkansas Med.                                                  ___  ____   _____________          Soc'y, Inc. v. Reynolds, 6 F.3d  519, 528 (8th Cir. 1993);  Sobky          ___________    ________                                     _____          v. Smoley, 855 F. Supp.  1123, 1137-38 (E.D. Cal. 1994); Oklahoma             ______                                                ________          Nursing Home Ass'n v.  Demps, 792 F.  Supp. 721, 727 (W.D.  Okla.          __________________     _____          1992); Illinois Hosp. Ass'n v.  Edgar, 765 F. Supp. 1343, 1348-49                 ____________________     _____          (N.D.  Ill. 1991).   Without  citation  to supporting  authority,          defendants nonetheless  insist that  section 1396(a)(30)  and the          Boren Amendment are distinguishable.                         i)   Intended Beneficiaries                         i)   Intended Beneficiaries                              ______________________                    The  Wilder  Court  reasoned  that  because  the  Boren                         ______          Amendment "establishes  a system for  reimbursement of  providers          and is phrased  in terms benefiting  health care providers .  . .          [in that] [i]t requires a state plan  to provide for `payment . .          .  of the  hospital  services,  nursing  facility  services,  and          services  in an  intermediate  care  facility  for  the  mentally          retarded provided under the plan,'" "[t]here can be little  doubt          that  health  care  providers  are  the intended  beneficiaries."          Wilder, 496 U.S. at 510.7  Defendants argue, however, that unlike          ______          the  Boren Amendment, section 1396a(a)(30) does not list specific                                        ____________________               7Although    Medicaid   recipients    also   are    intended          beneficiaries  under the "equal access" requirement as it affects          the availability of  their medical care, it is  well settled that          Congress may create more than one class of  intended beneficiary.          See Freestone  v. Cowan, 68 F.3d 1141,  1150 n.10 (9th Cir. 1995)          ___ _________     _____          (citing Golden  State Transit Corp.  v. City of Los  Angeles, 493                  ___________________________     ____________________          U.S. 103, 110 (1989); Carelli v. Howser, 923 F.2d 1208, 1211 (6th                                _______    ______          Cir. 1991)).                                            15          categories  of health  care providers  (e.g.,  hospitals, nursing          facilit[ies],  and  intermediate  care  facilit[ies]),  hence  it          cannot  be said  that Congress  focused on  providers  as section                                          _______          1396a(a)(30) beneficiaries.   We are not persuaded.                    The  Wilder Court first  observed that the  statute "is                         ______          phrased  in terms benefiting  health care providers,"  and leaves                                                    _________          "little doubt that health care providers are the intended benefi-                                         _________          ciaries," then proceeded to illustrate  how the plain language of                                      __________          the  Boren Amendment "establishes  a system for  reimbursement of          providers" through its  listing of specific types  of health care          providers.  Nowhere did the  Court indicate that the more general          term "providers" would not suffice, however, or that a listing of          specific types  of providers is  a sine  qua non without  which a                                             ____  ___ ___          congressional intent to  benefit health care providers  could not          be inferred.   As long as the  two statutory provisions  evince a          congressional  concern  for  preserving financial  incentives  to          providers    by ensuring adequate reimbursement payment levels             providers  are appropriately  considered intended  beneficiaries.          See Arkansas Med. Soc'y, Inc., 6 F.3d at 526.            ___ _________________________                         (ii) "Preference" or "Binding Obligation"                         (ii) "Preference" or "Binding Obligation"                               __________________________________                    Defendants argue that  section 1396a(a)(30) articulates          a  more discretionary "access"  standard than  that in  the Boren          Amendment,  and that  the  additional  discretion thus  conferred          belies  a congressional  intendment  to  lay  down  any  "binding          obligations"  on the State  in section 1396(a)(30).   See Wilder,                                                                ___ ______          496 U.S. at 509.  As  defendants see it, the Boren Amendment  (1)                                          16          requires the  State not  only to meet  the ultimate  benchmark of          providing  comparable  "access"  to medical  care,  but  also the          preliminary  obligation  to  make  "findings"  and  "assurances,"          satisfactory to the Secretary, that State reimbursement rates can          ensure  reasonable and  adequate access,  as well as  comply with          "State  and Federal  laws, regulations,  and  quality and  safety          standards,"  and (2)  limits the potential  reimbursement methods          and procedures  that the State  can employ to the  institution of          "rates,"  rather  than  permitting  more  innovative  or  ad  hoc                                                                    __  ___          reimbursement systems that might be less rate-dependent.  We find          no  indication that the Wilder holding  turned on these consider-                                  ______          ations.                      First  and foremost,  the  Boren Amendment  and section          1396a(a)(30) are  prefaced with  the same  mandatory language              "[a] State plan  for medical assistance must . . . [p]rovide," 42                                                  ____          U.S.C.    1396a(a); see  Edgar, 765 F.  Supp. at 1349     and the                              ___  _____          "reasonable" and  "equal" access requirements upon  which federal          Medicaid funding  depends, see 42 U.S.C.    1396c, are conditions                                     ___          precedent to an approvable State  Plan.  See Wilder, 496 U.S.  at                                                   ___ ______          511 (contrasting with statute in  Pennhurst State Sch. & Hosp. v.                                            ____________________________          Halderman, 451 U.S.  1, 24 (1981),  where hortatory language  did          _________          not make "compliance with the provision a condition of receipt of          federal funding"); Arkansas Med. Soc'y,  Inc., 6 F.3d at 526; see                             __________________________                 ___          also supra note 5 (discussing newly enacted 42 U.S.C.   1320a-2).          ____ _____          Thus,  the mandatory  language in  section  1396a(a) defies  fair          characterization as a mere "congressional preference."                                          17                    Second, the  majority opinion  in Wilder mentioned  the                                                      ______          Boren  Amendment   requirement  that  there  be   "findings"  and          "assurances"  merely to rebut a  suggestion in the Wilder dissent                                                             ______          that  Congress  had  intended to  accord  plaintiffs  standing to          assert a  judicial challenge  to a State's  default on  these two          procedural  obligations,  but  not  to  challenge  a  substantive          default (i.e.,  a State's  adoption of rates  that do  not ensure          "reasonable access,"  or that  are not  "adequate" to  compensate          "efficient[]" provider costs).  See  Wilder, 496 U.S. at 514 ("We                                          ___  ______          reject  that argument  because  it  would  render  the  statutory          requirements  of findings  and assurances,  and  thus the  entire          reimbursement  provision, essentially meaningless  [since] .  . .          [i]t would make  little sense for Congress to require  a State to          make  findings without requiring those findings to be correct.").          The premise that procedural rights normally exist only as aids to          the enforcement of substantive rights is not interchangeable with          the  proposition that substantive  rights cannot exist  absent an          express  provision of  attendant procedural  rights.   Thus,  the          majority opinion  in Wilder in  no sense suggests that  the Boren                               ______          Amendment's substantive  "access"  requirement  would  have  been          found any  less mandatory  if, like  section 1396(a)(30), it  had          contained no  explicit procedural  requirement of "findings"  and          "assurances."                          iii) Judicial Enforceability                         iii) Judicial Enforceability                              _______________________                    Defendants   intimate,   however,   that   absent   any          requirement of "findings" and "assurances," section  1396a(a)(30)                                          18          is less amenable to effective judicial enforcement than the Boren          Amendment.     As   we  have   explained,  however,   substantive          requirements are  not "impermissibly vague simply  because [they]          require[] judicial  inquiry into `reasonableness,'"  or "adequate          rates," as  long as "the action or purpose whose `reasonableness'          [or `adequacy'] is commanded  has been clearly delineated  and is          susceptible  of judicial ascertainment."  Albiston, 7 F.3d at 267                                                    ________          (collecting cases).                      The Boren  Amendment and  section 1396a(a)(30)  contain          nearly  identical substantive  requirements  that  the rates,  or          methods  and  procedures,  used  to determine  reimbursements  to          health  care providers ultimately  ensure reasonable, adequate or          equal "access" to medical care, which the Supreme Court in Wilder                                                                     ______          decided did not constitute a  standard too vague or amorphous for                      ___          judicial  enforcement.    See Wilder,  496  U.S.  at 515  ("[T]he                                    ___ ______          statute imposes  the concomitant  obligation to  adopt reasonable          and  adequate rates.").     Indeed, the  term "equal  access," as          employed  in  section  1396a(a)(30),  arguably  provides  a  more          concrete standard, objectively measurable against the health care          access afforded among  the general population, whereas  the Boren          Amendment  employs   the  somewhat   less  objective   benchmark:          "reasonable" access.                    Nor  do we discern  a material distinction  between the          focus on "methods and procedures" required by section 1396(a)(30)          and the focus  on "rates" required  by the Boren  Amendment.   In          either instance, the required determination     as to whether the                                          19          State methods or procedures, or the resultant rates of reimburse-          ment, are adequate to ensure "access"    is neither more nor less          daunting a  judicial task.  See id.  at 519 (noting that although                                      ___ __          States have great flexibility in choosing among a broad "range of          reasonable rates," "the statute and regulation[s] set out factors          which  a State  must consider  in  adopting its  rates," so  that          "there certainly are some rates  outside that range that no State          could ever find to be reasonable and adequate under the Act.").8                    For the foregoing reasons,  therefore, we conclude that          plaintiffs possess  standing to  enforce the  substantive section          1396a(a)(30)  requirement  that  the  State  adopt  "methods  and          procedures"  which will afford "equal  access" to medical care as          defined in section 1396a(a)(30).                    b)   Procedural Rights                    b)   Procedural Rights                         _________________                    Plaintiffs further  contend that  section 1396a(a)(30),          as  interpreted and applied through the HCFA implementing regula-          tions,   establishes  two   coincident  procedural   requirements          designed  to ensure  that health care  providers may  enforce the                                        ____________________               8We  reject the implicit  suggestion by defendants  that the          absence  of a  "findings" and  "assurances"  requirement under             1396a(a)(30)    makes   meaningful    judicial   review    wholly          impracticable  in  that the  courts  have  no factual  bases  for          ascertaining whether  the State's chosen "methods and procedures"          satisfy the  substantive  "equal access"  requirement.    Setting          aside  the  question  whether  the     1396a(a)(30)  implementing          regulations afford any procedural rights that ensure  disclosure,          see  infra  Section  II.B.2(a), plaintiffs  may  adduce  evidence          ___  _____          concerning the  inadequacy of  the State's  selected methods  and          procedures, or flaws  in the  State's substantive  decisionmaking          processes,  in any number of  ways; for example, with information          acquired by or from the State during public hearings, in proposed          Plan changes, or in the published State regulations.                                          20          substantive right of  "equal access":  the  requirements that the          State file a Plan amendment  and a public notice "describing" its          proposed new "methods  and procedures" in some detail.   Since we          conclude  that  defendants  have  not violated  these  procedural          requirements, see  infra Section II.B.2(a), we need not reach the                        ___  _____          enforceability issue.9                 2.   Claimed Violations of Enforceable Rights               2.   Claimed Violations of Enforceable Rights                    ________________________________________                    a)   Procedural Rights                    a)   Procedural Rights                         _________________                                        ____________________               9We  likewise reserve  judgment  as  to  whether,  and  what          extent,  procedural  rights prescribed  only in  the implementing          regulations, rather than  directly by statute, may be enforced in          a   1983  action.  See, e.g., Oklahoma Nursing Home Ass'n, 792 F.                             ___  ____  ___________________________          Supp. at 725-26.                                          21                         i)   Plan Amendment 003                         i)   Plan Amendment 003                              __________________                    Prior  to the time Amendment 003  was submitted to HCFA          in  March 1994,  the approved  Massachusetts  Plan described  its          "methods  and  procedures" for  reimbursing  providers  as "fixed          negotiated fee schedules."  Amendment 003 purportedly altered the          "methods and procedures" to be  employed under the new class rate          system  simply by deleting the word "negotiated," with the result          that the new rates were to be based on "fixed fee schedules."                    Plaintiffs  argue that  the cryptic  phrase "fixed  fee          schedules"  is patently deficient to describe the proposed change          in the Massachusetts reimbursement "methods  and procedures," and          that  under whatever conceivable  definition the phrase  might be          given,  it  utterly  failed  to notify  HCFA  or  plaintiffs that          defendants planned to change from  a cost-based system to a class          rate system, or to explain  with any precision the methodology or          formula   defendants   used   to  arrive   at   the   bottom-line          reimbursement  figures announced in the DMA regulation. See Mass.                                                                  ___          Regs. Code tit. 114.3,   3.04(4).  We do not agree.                    First,  HCFA  itself  implicitly  determined  that  the          phrase  "fixed  fee  schedules"  met  the  section   1396a(a)(30)          mandate,  otherwise  it  could not  have  approved  Amendment 003          retroactive to January 1,  1994.  See supra note 4.   In order to          ___________ __ _______ _   ____   ___ _____          be  entitled  to  retroactive effect  to  January  1,  1994, Plan          amendment 003 had to have been "approvable" as submitted in March                                                      __ _________ __ _____          1994,  when  it  contained  merely   the  three-word  description          ____          presently challenged  by  plaintiffs as  insufficient to  satisfy                                          22          section  1396a(a)(30).10  We  must therefore review  the implicit          interpretation given section 1396a(a)(30) by HCFA in this case.                    At  its  initial  stage,   Chevron  review  accords  no                                               _______          deference to the interpretation an  agency gives to its  enabling          statute. See supra Section II.A.  If the reviewing court indepen-                   ___ _____          dently determines  that the  intent of the  statute is  clear, as          disclosed  in  its  plain  language  and  design,  the  statutory          language is to be given full  effect.  See Grunbeck v. Dime  Sav.                                                 ___ ________    __________          Bank  of  N.Y.,  FSB,  74  F.3d  331,  340-41  (1st  Cir.  1996);          ____________________          Strickland v. Commissioner of Me.  Dep't of Human Servs., 48 F.3d          __________    __________________________________________          12, 16-17 (1st Cir.), cert. denied, 116 S. Ct. 145 (1995).                                 _____ ______                    Section 1396a(a)(30) mandates that a State Plan provide          "methods and  procedures relating  to .  . .  the payment  for []          [medical]  care and services."   Plaintiffs argue  that "methods"          has a plain or  acquired meaning that necessitates  disclosure of          the formula the State used  to arrive at its proposed bottom-line          reimbursement  figures.    Thus,   plaintiffs  suggest  that  the          solitary statutory term "rates" might permit a Plan amendment  to          list only bottom-line figures, cf.  42 U.S.C.   1396a(a)(13), but                                         ___          that the  presence  of  the  term "methods"  forecloses  such  an          approach.  Once again, we are unable to agree.                                          ____________________               10Thus  viewed, the  HCFA  interpretation  comports with  42          C.F.R.   430.16(a)(ii), which empowers  HCFA to ask the State for          any  "additional information"  the agency  needs  to conduct  its          "final  [approval] determination."    On the  other hand,  if the          requested "additional information"  were a necessary part  of the          initial submission by the State, and hence of its Plan, Amendment          003 would only  have been retroactive to January  1995. See supra                                                            ____  ___ _____          p. 9.                                          23                    Even if  the distinction  suggested by plaintiffs  were          deemed sound,  the question  would remain:   with what  degree of          specificity or detail  must a State describe the methodology used          in its Plan  amendment?  In this case, for example, although non-          exhaustive,  the terms "cost-based"  and "class  rates" assuredly          are  to  some  degree  descriptive  of  the  proposed  change  in          methodology,  particularly among the initiated, viz., health care                                                          ___          providers.   Yet we are  unable to say that  section 1396a(a)(30)          defines,  in plain language,  the term "methods  and procedures,"          nor, more  importantly, that  it prescribes  the level  of detail          with which a Plan must describe "methods and procedures."  Unlike          the Boren  Amendment,  moreover, section  1396a(a)(30)  does  not          require the State to make "findings" and "assurances," a require-          ment that  arguably might  be thought  to  anticipate a  somewhat          greater   degree  of  detail   and  specificity  from   a  Plan's          description.    As we  are  unable  to  discern either  a  "plain          language" meaning or  design in section 1396a(a)(30)  relating to          "the  precise question  at issue,"  Chevron, 467  U.S. at  842                                                 _______          i.e.,  the degree  of specificity  required in  a Plan  amendment          description  of proposed new "methods and  procedures"    we next          turn to defendants'  contention that Congress meant to leave this          matter for determination by HCFA, the administering agency.11                     The  second stage in  the Chevron analysis  counsels "a                                              _______                                        ____________________               11Plaintiffs do  not claim  that  the available  legislative          history provides useful guidance.   See Strickland, 48 F.3d at 17                                              ___ __________          (stating  that  reviewing  court  may  "examine  the  legislative          history, albeit skeptically, in search of an unmistakable expres-          sion of congressional intent").                                          24          high degree  of respect for  the agency's role"  in administering          its enabling statute.  See Strickland, 48 F.3d at 17 ("The agency                                 ___ __________          need not write a rule that serves the statute in the best or most          logical manner;   it need only write a rule that flows rationally          from a permissible construction  of the statute.") see Lamore  v.                                                             ___ ______          Ives,  977  F.2d  713,  718  (1st Cir.  1992);  accord  Caribbean          ____                                            ______  _________          Petroleum Corp. v. United  States EPA, 28 F.3d 232, 234 (1st Cir.          _______________    __________________          1994);  Cabral v. INS,  15 F.3d 193, 194  (1st Cir. 1994) (agency                  ______    ___          interpretation  "is  entitled  to   deference  unless  arbitrary,          capricious,  or  manifestly contrary  to  the  statute").   As  a          general rule, longstanding agency interpretations are entitled to          greater deference than  more recent ones.  See  Bowen v. American                                                     ___  _____    ________          Hosp. Ass'n, 476 U.S. 610, 646 n. 34 (1986); Mayburg v. Secretary          ___________                                  _______    _________          of Health and  Human Servs., 740  F.2d 100, 106 (1st  Cir. 1984).          ___________________________          Further,   the  more  persuasive  the  rationale  for  an  agency          interpretation, the more  deference it is due, especially  if the          statute  administered by  the agency  involves complex  questions          peculiarly   within   the   agency's   acquired,  technical,   or          institutional expertise.  Bowen, 476 U.S. at 646.                                      _____                    Plaintiffs stress that these HCFA regulations  describe          a State Plan as a  "comprehensive written statement," 42 C.F.R.                                _____________          430.10 (emphasis added),  which must (i) "contain[]  all informa-          tion necessary  for HCFA to  determine whether the plan  [or plan          amendment]  can be  approved  to  serve as  a  basis for  Federal          financial participation  (FFP) in  the State  program," id.,  and                                                                  ___          (ii) "describe the policy and the  methods to be used in  setting                                          25          payment rates  for each type  of service included in  the State's          Medicaid   program,"  id.      447.201.    Although   these  HCFA                                ___          regulations   are   not   facially   inconsistent  with   section          1396a(a)(30),  neither  do they  expressly resolve  the ambiguity          inherent in the statute.                      Contrary to plaintiffs'  assertion, the section  430.10          reference  to comprehensiveness  accurately  describes the  State          Plan, even  under the  minimalist interpretation  given the  term          "description" by  defendants and HCFA, since we  think one cannot          rationally contend that a State  Plan itself, which must cover no          less  than  sixty-two   different  criteria,  see  42   U.S.C.                         _________                         ___          1396a(a)(1)-(62),  is not a  "comprehensive" document.   For this          reason and because HCFA's regulations do not  prescribe the level          of  specificity  and comprehensiveness  with  which "methods  and          procedures" must  be described  in a Plan,  we must  consider the          implicit interpretation HCFA has given its own regulations.                    Plaintiffs concede that the initial Massachusetts  Plan          approved  by  HCFA  had  been  in existence  for  years,  yet  it          contained  only  a  bare-bones,  four-word  description   of  its          "methods and procedures."  When Massachusetts decided in  1991 to          effect a material change in its rate-setting system, from a cost-          based to a class-rate system, it reasonably  understood that HCFA          had  interpreted its own  implementing regulations to  require no          greater degree of  specificity in the Amended  Plan's description          _______          of   reimbursement  rates  than  that  provided  in  the  initial          Massachusetts Plan, which  had gone unchallenged for  many years.                                          26          See Bowen, 476 U.S. at 646 n. 34; Lynch v. Dawson, 820 F.2d 1014,          ___ _____                         _____    ______          1020  (9th Cir. 1987)  (agency's interpretation of  regulation is          accorded  various  degrees  of deference  based  on  duration and          consistency of agency position).                    Plaintiffs correctly  contend,  of  course,  that  this          longstanding  HCFA interpretation  does  not foreclose  a federal          court from determining  whether the interpretation an  agency has          given  its own regulations rationally comports with the statutory          and regulatory language.   Nevertheless, their argument seriously          devalues the heightened Chevron  judicial deference reaffirmed in                                  _______          Stinson, which requires the reviewing court to decide whether the          _______          agency's  interpretation  of  its  own  regulation   is  "plainly                                                                    _______          erroneous or  inconsistent with  the regulation."   Stinson,  508          _________                                           _______          U.S. at 45 (emphasis added).                    Since  sections  430.10   and  447.201,  like   section          1396a(a)(30)   itself,  do   not   preclude  the   interpretation          implicitly  given  them by  HCFA,  we  may not  second-guess  its          reasonable  policy  judgment.    See  Bowen,  476  U.S.  at  646;                                           ___  _____          Massachusetts  Fed'n of Nursing  Homes v. Commonwealth  of Mass.,          ______________________________________    ______________________          772 F. Supp. 31, 39 (D. Mass. 1991) ("The HCFA certainly has more          expertise in this complicated area of the law than the courts.").          And because  plaintiffs have not  chosen to join HCFA  as a party          defendant, see 42 U.S.C.   1396c, we can only infer the rationale                     ___          for  HCFA's  longstanding  practice from  its  prior  approval of          Amendment 003  and its  predecessor.  Moreover,  we find  readily          apparent a sound policy reason for the HCFA's action.                                           27                    The Medicaid Act designedly affords States considerable          flexibility in administering their respective Medicaid  programs,          allowing  each to  devise  and  modify its  Plan  in response  to          prevailing  local medical  and financial  conditions.   Once  the          sixty-two  statutory minima  in section  1396a(a)  are met,  each          participating  State has  "wide  discretion in  administering its          local program."    See,  e.g.,  Erie  County  Geriatric  Ctr.  v.                             ___   ____   _____________________________          Sullivan, 952 F.2d  71, 73-74 (3d Cir. 1991);  Lewis v. Hegstrom,          ________                                       _____    ________          767  F.2d  1371,  1373  (9th  Cir.  1985).    HCFA's   regulatory          interpretation     permitting terse descriptions of  "methods and          procedures," such  as "cost-based"  or "class  rate"     arguably          serves this  salutary goal as well.  Mandating the inclusion of a          detailed formula in  the State Plan itself could  require a State          to file  a new Plan  amendment each time  it needed to  alter any                                                                        ___          significant integer in its formula, thereby imposing a cumbersome          administrative  burden on  the  State  as well  as  HCFA.   Thus,          whatever one might think  of its wisdom,  we cannot say that  the          implicit policy choice made by  HCFA was precluded, either by the          statute or HCFA regulations.   See Massachusetts Fed'n of Nursing                                         ___ ______________________________          Homes, 772  F. Supp. at  39 (noting that  HCFA approval of  Plan,          _____          unless  inconsistent with  the statute or  regulation, implicitly          establishes definition  of comprehensiveness of the term "methods          and procedures" as a matter of law).                    Nor  do   we  think   the  agency   decision  approving          defendants' description  of the new  class rate system     as one          utilizing "fixed fee  schedules"    was impermissible,  given the                                          28          original  Massachusetts Plan's  longstanding  description of  its          provider-cost-based system as a  "negotiated fixed fee schedule."          HCFA  fairly  and sensibly  reasoned  that deletion  of  the term          "negotiated" signified  clearly enough that  individual providers          no longer  would be entitled to reimbursement rates set according          to  their idiosyncratic cost  experiences, but would  be confined          for the most  part to across-the-board "fixed"  rates established          for services rendered in each  of the five covered health service          classifications.  Accordingly, as the longstanding interpretation          reflected  in the  HCFA regulations  was  not plainly  erroneous,          defendants were entitled  to place reasonable reliance  on HCFA's          interpretation  in preparing and submitting their March 1994 Plan          Amendment  003.  Cf.  Sekula v. FDIC,  39 F.3d 448,  457 (3d Cir.                           ___  ______    ____          1994)  ("[A]  person  `proceeding in  good  faith  should  not be          subjected  to a  trap brought  about  by an  interpretation of  a          regulation hidden in the bosom of the agency' . . . . [b]ut there          is no `trap' when the  agency's interpretation of a regulation is          public and long-standing.") (citation omitted).                         ii)  Public Notice Under Section 447.205                          ii)  Public Notice Under Section 447.205                               ___________________________________                    Plaintiffs  next  contend  that  the  HCFA  regulations          mandate that the  public notices issued by the  State relating to          reimbursement   rate   changes   likewise  contain   a   complete          description  of  the  proposed change  in  methodology.   Section          447.205 provides, in pertinent part:                    (a)  When  notice  is  required.   Except  as                    specified in paragraph  (b) of this  section,                    the agency must provide public notice  of any                    significant  proposed change  in its  methods                                          29                    and standards  for setting payment  rates for                    services. . . .                    . . . .                    (c) Content of notice.  The notice must--                         (1)  Describe  the  proposed change                              in methods and standards;                         (2)  Give  an estimate  of any  expected                              increase or decrease  in annual ag-                              gregate expenditures;                         (3)  Explain why the  agency is changing                              its methods and standards;                         (4)  Identify  a  local agency  in  each                              county (such as the social services                              agency or health  department) where                              copies of the  proposed changes are                              available for public review;                         (5)  Give an address  where written com-                              ments may  be sent and  reviewed by                              the public;  and                         (6)  If there are  public hearings, give                              the  location,  date and  time  for                              hearings or tell  how this informa-                              tion may be obtained.          42 C.F.R.   447.205.                      Defendants respond  that section  447.205 was  complied          with because the representative public notice hereinafter  quoted          explained "why DMA is changing its methods  and standards," i.e.,          "to  implement a  class rate  system by  eliminating many  of the          idiosyncratic  adjustments  that  existed  previously [under  the          cost-based rate setting system]":                         The  proposed amendments  do not  change                    the existing  methodology from July 1, 1992 -                    December  31, 1992 except  for a provision to                    allow some eligible providers to request rate                    reviews  based  on  their cost  report,  with                    inflation equal to 1.0.  Effective January 1,                    1992,  the  proposed  amendments  change  the                    structure of the reimbursement methodology to                    a   class  rate   system:  establishing   new                        _____  ____   ______                    criteria   for  administrative   adjustments;                    eliminating, among other things, costs beyond                                          30                    agency   control,   management   initiatives,                    program  innovation  rate   adjustments,  and                    appeals sections  of the  regulation.   It is                    estimated that  the proposed  amendments will                    increase   program   expenditures    by   the                    Department of Public Welfare by approximately                    $335,000.  (Emphasis added.)                    For  the reasons  discussed  in Section  II.B.2.(a)(i),          supra, we believe  the public notices  issued by defendants  need          _____          not have  "describ[ed]" the  proposed changes  in greater  detail          than  that provided  in Plan  Amendment 003.   Absent  a reliable          indication to the  contrary, we must  assume that HCFA  construes          the term "describe" in section 447.205(c)(1) as it interprets the          same term in  42 C.F.R.   447.201 (providing  that Plan amendment          "must  describe the  policy and  methods  to be  used in  setting          payment rates  for each type  of service included in  the state's          Medicaid  program").   Cf. Gustafson  v. Alloyd  Co., 115  S. Ct.                                 ___ _________     ___________          1061, 1067 (1995) (noting presumption  that a word or phrase used          more  than  once  in a  statute  is  intended  to  have the  same          meaning);  United States  v.  Rhode  Island Insurers'  Insolvency                     _____________      ___________________________________          Fund, 80 F.3d 616, 622 n.4 (1st Cir. 1996).12            ____                    Plaintiffs complain that interested parties cannot know          whether  proposed   changes   in   methodology   threaten   their          substantive rights under  section 1396a(a)(30) unless  the public                                        ____________________               12The only case remotely  on point, see Methodist Hosps.  v.                                                   ___ ________________          Indiana  Family and  Social Servs.,  860 F.  Supp. 1309,  1326-28          __________________________________          (N.D.  Ind.  1994),  does  not  undercut  HCFA's  interpretation.          Although  the  notice  involved in  that  case  contained greater          detail than these  notices, the court found the  notice adequate,          not  inadequate.    Consequently, the  case  is  not particularly          instructive as to how much less detail might have been considered          permissible.                                           31          notice  is sufficiently  informative.   As  their name  suggests,          however, "notice" provisions are neither invariably nor primarily          designed to afford exhaustive disclosure, but to alert interested          parties  that  their  substantive  rights may  be  affected  in a          forthcoming  public proceeding.   See Mississippi Hosp.  Ass'n v.                                            ___ ________________________          Heckler, 701 F.2d 511, 520 (5th Cir. 1983) (noting that notice is          _______          designed  to "outline[] the  substance of the  plan in sufficient          detail to allow  interested parties to decide how  and whether to          seek more  information on  the plan's  particular aspects");  see                                                                        ___          also 42 C.F.R.    447.205(c)(4), (6) (mandating  the provision of          ____          information  to  allow interested  parties to  initiate follow-up          after    447.205  notice).   Accordingly,  HCFA might  reasonably          anticipate   that  the   State   would  provide   more   detailed          information, relating to its methodology, at the public hearings,          especially  since it  is in  the State's  interest to  respond to          reasonable  requests  for  further   information  at  the  public          hearings, if for no other reason than to forfend a future section          1983 action by disgruntled health care providers.  See supra note                                                             ___ _____          8 (describing potential  discovery burdens facing the  State in            1983   action).      Thus,   HCFA's   interpretation   cannot  be          characterized  as either  plainly erroneous or  inconsistent with          the Medicaid statute.13                                          ____________________               13Since the public notices complied  with   447.205, we need          not determine  whether plaintiffs  acquired actual  notice during                                                      ______          the  two and  a half  years of  public consultative  hearings and          meetings,  or whether  any such  actual  notice might  excuse the          alleged  procedural default under    447.205.  See North Carolina                                                         ___ ______________          Dep't of  Human Resources, 999  F.2d at 771 (finding  that actual          _________________________          notice did not cure procedural default).                                          32                    Since    defendants    violated    neither   procedural          requirement  established in section 1396a(a)(30), we do not reach          defendants' two remaining arguments    i.e., whether the district          court erred  in  refusing to  stay its  partial summary  judgment          while Amendment 003 remained pending before HCFA, and whether the          district court's  declaratory judgment  constituted retrospective          relief barred by the Eleventh Amendment.14                                          ____________________               14Plaintiffs urge us to affirm the district court on another          ground.   See Four Corners  Serv. Station, Inc.,  51 F.3d at 314.                    ___ _________________________________          Before  implementing the  final  class  rates  in  January  1994,          defendants  failed  to  consult with  the  medical  care advisory          committee  (MCAC),  appointed   by  the  Massachusetts   Medicaid          director  to  represent, inter  alios, consumer  groups, Medicaid                                   _____  _____          recipients, and  health care providers specializing in low-income          medical  services.   See 42  U.S.C.    1396a(a)(4);  42 C.F.R.                                  ___          431.12(e).  We decline plaintiffs' request.                The alleged MCAC violation was  first raised in the  amended          complaint filed in September 1994.  The State subsequently recon-          vened a MCAC, with which  it consulted regarding the final rates.          The    431.12(e) case law  suggests that States  should undertake          their MCAC consultations as  early in the Plan  amendment process          as  practicable, preferably before any final decision on proposed          changes  to their reimbursement  methodologies.  See  Morabito v.                                                           ___  ________          Blum,  528 F. Supp. 252,  264 (S.D.N.Y. 1981) (collecting cases).          ____          Nonetheless,  the Medicaid  Act contains  no express  requirement          that a  State establish a MCAC, see 42  U.S.C.    1396a(a)(4), an                                          ___          entity   entirely   the  creature   of   the   HCFA  implementing          regulations.   See Morabito, 528 F.  Supp. at 264.   Further, the                         ___ ________          HCFA regulations prescribe  no time bar for  the recommended MCAC          consultation.  Thus,  HCFA might reasonably  conclude that (1)  a          State's  failure to  consult  an MCAC,  while  not the  preferred          practice,   does  not   constitute   a   sufficient  ground   for          disapproving  a Plan amendment in  all circumstances, or (2) MCAC          consultation is  sufficient as  along as  it occurs  before final          HCFA approval of  the Plan amendment.   Given that the MCAC  is a          purely  advisory  body,  with  no  veto  power  over  the State's          decisions,  see Burgess v.  Affleck, 683 F.2d 596, 600  (1st Cir.                      ___ _______     _______          1982)   (upholding    district   court's   refusal    to   enjoin          implementation of rates for alleged MCAC  violation which was not          "egregious"); cf. Mississippi Hosp. Ass'n, Inc., 701 F.2d  at 523                        ___ _____________________________          (noting  court's reluctance to "read more into [  431.12(e)] than          is  clearly expressed,"  where  "the  federal  agency  whose  own          regulation is  in question  has approved  the state's  actions"),          this interpretation is neither plainly erroneous nor inconsistent                                          33                         b)   Substantive Right to "Equal Access"                         b)   Substantive Right to "Equal Access"                              ___________________________________                    The district court first dismissed plaintiffs' substan-          tive claims on the mistaken ground that plaintiffs had stipulated          to  their dismissal.    Upon  reconsideration,  the  court  again          dismissed the substantive claims, apparently because its decision          on   the  procedural   claims   had  rendered   their  resolution          unnecessary.  Insofar as the district court meant to suggest that          defendants' procedural  violations from January to October, 1994,          were sufficient in themselves to invalidate the final class rates          during the January-October 1994 period, without regard to whether          the rates violated plaintiffs' substantive "equal access" rights,          its  dismissal order cannot stand.   See supra Section II.B.2(a).                                               ___ _____          Since we  have concluded  that the State  was in  full procedural          compliance,  plaintiffs must  now adduce  evidence  that (1)  the          methods and procedures  adopted by the  State were inadequate  to          ensure  "equal  access,"  or (2)  the  bottom-line  reimbursement          figures derived  under that  methodology were  too low  to retain          health care providers in the Massachusetts Medicaid program.  See                                                                        ___          supra note 8.       Conversely,  if the  district court  meant to          _____          suggest  that  judicial  resolution  of  plaintiffs'  substantive          claims  was  unnecessary   because  HCFA  has   already  approved          Amendment  003 retroactive to  January 1, 1994,  we cannot agree.          HCFA's  approval of the  State's proposed methods  and procedures          (i.e.,  "class rates"), though arguably entitled to the customary          level of Chevron  deference, are not automatically  conclusive at                   _______                                        ____________________          with   1396a(a)(4).                                           34          the  summary judgment  stage.  Further,  the  as-yet  undeveloped          factual record  relating to  plaintiffs' substantive  claims does          not reveal HCFA's  rationale for approving the  substantive terms          of defendants' Plan amendment, or  whether the final class  rates          have the  actual effect of  creating "unequal access"  to medical          services.                                            35          C.   Plaintiffs' Cross-Appeal          C.   Plaintiffs' Cross-Appeal               ________________________                    Plaintiffs cross-appeal from the district court rulings          that  (1)  defendants   were  in  compliance  with   the  section          1396a(a)(30)  procedural requirements as of November 1, 1994, and          (2) defendants  did not  violate the  procedural requirements  by          instituting  their  interim  and phase-in  rates.    Although the          district  court  did not  reveal  the  rationale  for the  latter          holding,  we presume  that it  found that  the transitional  rate          methodologies  had not  effected  a  "material" or  "significant"          change from the pre-1991 methodologies.  In light of our previous          holding,  see supra  Section II.B.,  we  deny plaintiffs'  cross-                    ___ _____          appeal on both fronts.                      First, if defendants complied with the putative  proce-          dural requirements in  filing Amendment 003 and  publishing their          pre-January  1994 notices,  it  necessarily  follows  that  their          filing  of the more detailed Amendment 023 and their post-October          1994 notices likewise would comply with the procedural thresholds          prescribed by  the HCFA regulations.  Second,  since we conclude,          on the specific facts of this case, that  deference is due HCFA's          conclusion  that a "description"  of "methods and  procedures" is          adequate  as long as it  differentiates between a cost-based rate          and a class  rate system, we affirm the  district court's finding          that the  interim and phase-in rates, which retained some aspects          of  the pre-1991 "cost-based"  or "negotiated" rate  systems, did          not represent a  cognizable change in the methods  and procedures          such as necessitated a Plan amendment or public notice.                                          36                                         III                                         III                                      CONCLUSION                                      CONCLUSION                                      __________                    To  the extent  section 1396a(a)(30)  might create  the          purported  procedural  rights  advocated by  plaintiffs,  Chevron                                                                    _______          deference is  due  HCFA's longstanding  statutory and  regulative          interpretation that a State sufficiently describes its cost-based          system as  a "fixed  negotiated fee schedule,"  and its  proposed          class rate system as "fixed fee schedules."  We therefore reverse          the district court  ruling that defendants  were in violation  of          section 1396a(a)(30)'s procedural requirements  from January 1 to          October  31, 1994.   We  likewise affirm  the two  district court          rulings challenged in plaintiffs' cross-appeal.  Finally, because          summary  judgment   was  improvidently  granted   on  plaintiff's          procedural  claims, the district court ruling that no disposition          was necessary on plaintiffs' substantive claims was in error.                      Accordingly, the district court judgment for plaintiffs          on their procedural claims is vacated and the case is remanded to          the  district  court  for  further   proceedings  on  plaintiffs'          substantive claims, consistent with this opinion.                    SO ORDERED.  The parties shall bear their own costs.5                    SO ORDERED.  The parties shall bear their own costs.                    __________   ______________________________________                                          37
