                                                                     [PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                       ________________________________

                                  No. 96-5144
                       ________________________________

                     D.C. Docket No. 92-589-CIV-FERGUSON


JOHN/JANE DOE, 1-13 by and through Mr./Mrs.
Doe Sr. No.'s 1-13 as natural guardians on behalf
of John/Jane Doe 1-13 and on behalf of those
similarly situated, FLORIDA ASSOCIATION OF
REHABILITATION FACILITIES INCORPORATED,
a Not-for-Profit association, UNITED CEREBRAL PALSY
OF FLORIDA, INCORPORATED, a Florida Not-for-Profit
Corporation,

                                             Plaintiffs-Appellees,


      versus


LAWTON CHILES, in his official capacity as Governor
of the State of Florida, ROBERT WILLIAMS, individually
and in his official capacity as Secretary of the Department
of Health & Rehabilitative Services of the State of Florida,
GARY CLARKE, individually and in his official capacity
as Assistant Secretary for Medicaid, Department of Health
& Rehabilitative Services of the State of Florida, CHARLES
KIMBER, in his official capacity as Assistant Secretary for
Developmental Services of the Department of Health &
Rehabilitative Services, State of Florida, SECRETARY OF
THE DEPARTMENT OF HEALTH AND REHABILITATIVE
SERVICES, Edward A. Feaver, in his official capacity,

                                             Defendants-Appellants.
________________________________________________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
_________________________________________________________________


                                  (February 26, 1998)

Before HATCHETT, Chief Judge, BARKETT, Circuit Judge, and PROPST*, Senior
District Judge.


HATCHETT, Chief Judge:



      In this action based on 42 U.S.C. § 1983, the district court found that officials of

the Florida Department of Health and Rehabilitative Services were failing to furnish

Medicaid assistance with "reasonable promptness" to eligible developmentally disabled

individuals, and thus were violating a provision of the Medicaid Act, 42 U.S.C. §




________________________________
*
 Honorable Robert B. Propst, Senior U.S. District Judge for the Northern District of
Alabama, sitting by designation.



                                             2
1396a(a)(8).1 Thereafter, the court enjoined the officials from failing to provide the

assistance within a “reasonable” time period, not to exceed ninety days. The officials

appeal, and, for the reasons stated herein, we affirm the judgment of the district court.

                                    I. BACKGROUND

       In March 1992, the plaintiffs-appellees -- Medicaid-eligible, developmentally

disabled (i.e., mentally retarded) individuals who had been placed on waiting lists for

entry into intermediate care facilities for the developmentally disabled ("ICF/DD" or

"ICF/MR") -- instituted this lawsuit pursuant to section 1983, claiming that the

defendants-appellants were causing unreasonable delays regarding the provision of

ICF/DD services in violation of section 1396a(a)(8) and the Fifth and Fourteenth

Amendments to the United States Constitution. The appellees' class-action complaint

alleged that they were not “receiving the therapies, training and other active treatment to

which they are entitled by virtue of [their] eligibility for a residential placement in an

[ICF].” The complaint further averred that most of the appellees had been waiting for

"over five years" for Medicaid services and were “languish[ing] without the training and

therapies they so desperately need.”2 The appellants do not contest that serious delays


       1
         In 1996, the Florida Legislature redesignated the Department of Health and
Rehabilitative Services as the Department of Children and Family Services and
established a separate Department of Health. See Fla. Stat. Ann. § 20.19, .43 (West Supp.
1998).
       2
           Under the ICF/DD program:

       Each client must receive a continuous active treatment program, which

                                               3
have occurred. In fact, in their initial brief to this court, they acknowledge that their

practices “resulted in waiting periods of several years."3 The appellees sought injunctive,

declaratory and incidental monetary relief.

       Amidst extended pre-trial proceedings, the appellees moved for class certification,

and both sides moved for summary judgment.4 On July 22, 1996, the district court

granted the appellees summary judgment, holding:

              Section 1396a(a)(8) of the Medicaid [A]ct, specifically the
       reasonable promptness clause, is enforceable under 42 U.S.C. § 1983.
       "Medical assistance under the plan" has been defined as medical services.
       The [S]tate is obliged to furnish medical services, however, only to the
       extent that such placements are offered in the Federal Health Care
       Financing Agency ("HCFA") approved State plan. Once a state elects to
       provide a service, that service becomes part of the state Medicaid plan and
       is subject to the requirements of Federal law.


       includes aggressive, consistent implementation of a program of specialized
       and generic training, treatment, health services and related services . . . ,
       that is directed toward--
       (i) The acquisition of the behaviors necessary for the client to function with
       as much self determination and independence as possible; and
       (ii) The prevention or deceleration of regression or loss of current optimal
       functional status.

42 C.F.R. § 483.440(a)(1)(i)-(ii) (1996). The ICF/DD program is restricted to individuals
with sufficiently severe mental retardation and related conditions. It is not designed for
“generally independent clients who are able to function with little supervision or in the
absence of a continuous active treatment program.” 42 C.F.R. § 483.440(a)(2) (1996).
       3
         See also Appellants’ Reply Br. at 2 (appellants “did not dispute the occurrence
and length of delays”).
       4
         In December 1992, the district court dismissed defendant Lawton Chiles, the
Governor of Florida, and the organizational plaintiffs, the Florida Association of
Rehabilitation Facilities, Inc. and United Cerebral Palsy of Florida, Inc., from this
lawsuit.

                                               4
               At oral argument on this issue, Defendants conceded that Florida's
       [HCFA] State approved plan does provide for placement in ICF/MR
       facilities. Further, Defendants have not disputed the facts alleging the
       [S]tate's failure to conform with the provisions set forth in that statute,
       which the Court construes as an admission of unreasonable delays in
       placing developmentally disabled persons into ICF/MR facilities.

(Citations and footnote omitted.)5

       On August 26, 1996, a magistrate judge signed a report recommending that the

district court grant the appellees' motion to certify as a class "all those developmentally

disabled persons who have not received prompt [ICF/DD] placement." After conducting

a hearing on August 28, 1996, the district court entered final judgment that day, ordering

that the appellants "shall, within 60 days of the date of this Order, establish within the

State's Medicaid Plan a reasonable waiting list time period, not to exceed ninety days, for

individuals who are eligible for placement in ICF/DD."

       On September 3, 1996, the appellants filed their notice of appeal.6 On January 6,

1997, the district court denied the appellants' emergency motion to stay the final judgment

pending appeal. On January 29, 1997, this court ordered an expedited briefing schedule;

denied the appellants' emergency motion for a stay pending appeal as to the named

appellees; and granted the appellants' emergency motion for a stay pending appeal as to

relief for putative class members.


       5
           The court did not reach the appellees' constitutional claims.
       6
        Subsequent to the filing of the notice of appeal, the district court denied the
monetary claims the appellees had pressed against appellants Robert Williams and Gary
Clarke.

                                                5
                                    II. CONTENTIONS

       The appellants challenge the district court's determination as to liability on four

grounds. According to the appellants: (1) the appellees lack standing to bring this

lawsuit; (2) recipients of Medicaid services cannot assert a cause of action under section

1396a(a)(8); (3) section 1396a(a)(8) does not give rise to a federal right enforceable under

section 1983; and (4) the Eleventh Amendment bars this action. The appellants also

contend that the district court abused its discretion in rendering the injunctive relief it

imposed.

       We find the appellants' standing argument meritless and unworthy of further

discourse.7 Accordingly, part A of the discussion section below addresses the appellants'


       7
         The crux of the appellants' standing claim is that the appellees have not
demonstrated any injury resulting from the appellants' failure to provide Medicaid
services in a timely manner. The district court described this argument as "frivolous,"
and the appellants' counsel only raised it in passing during oral argument before this
court. We agree with the district court that the record reveals "a plethora of facts showing
the harm caused to developmentally disabled persons by the State of Florida's current
procedure which allows eligible Medicaid recipients who have been determined to be in
need of ICF/DD services to be placed on indefinite waiting lists."

        The plight of appellee Jane Doe 6 is illustrative. Jane is approximately thirty-nine
years of age and lives at home with her parents, who are in their mid-to-late seventies and
have significant health problems. Jane is severely retarded and has Downs Syndrome.
She can walk but, for the most part, cannot talk, and she is totally dependent upon others
for all of her daily life activities. Jane has been waiting for about ten years for ICF/DD
services. The uncontroverted evidence reveals that Jane’s failure to receive these services
in anything approaching a timely fashion has caused her to lose several skills and fail to
develop others. As to the future, Kathy Whitaker, a qualified mental retardation
professional who evaluated Jane, concluded as follows:

       Future vision of Jane without training indicates a continued lessening of

                                               6
statutory arguments as to liability; part B assesses the appellants' Eleventh Amendment

claim; and part C addresses the appellants' contentions regarding the injunctive relief the

district court rendered.

                            III. STANDARDS OF REVIEW

       We review a district court’s conclusions of law de novo. DeKalb County Sch.

Dist. v. Schrenko, 109 F.3d 680, 687 (11th Cir.) (per curiam), cert. denied, 118 S. Ct. 601

(1997). “We review the district court's grant of injunctive relief for abuse of discretion,

meaning we must affirm unless we at least determine that the district court has made a

clear error of judgment or has applied an incorrect legal standard.” SunAmerica Corp. v.

Sun Life Assurance Co. of Can., 77 F.3d 1325, 1333 (11th Cir.) (internal quotation marks

and citations omitted), cert. denied, 117 S. Ct. 79 (1996).

                                    IV. DISCUSSION

                                             A.

       Section 1983 imposes liability on anyone who, acting under color of state law,

deprives a person of "any rights, privileges, or immunities secured by the Constitution


       skills, a lack of motivation, escalated isolation with no opportunities for
       peer development and contact, and daily lack of meaningful activities to
       reduce the ineffectual time spent simply listening to the radio, music and
       doing child-like puzzles. Jane is a person with many, many strengths that
       will dissolve and are dissolving each day as she is denied [services].

Whitaker’s conclusion went uncontradicted in the district court. “[A] party has standing
to seek injunctive relief . . . if the party alleges, and ultimately proves, a real and
immediate . . . threat of future injury.” Church v. City of Huntsville, 30 F.3d 1332, 1337
(11th Cir. 1994).

                                              7
and laws." 42 U.S.C.A. § 1983 (West Supp. 1997). In Maine v. Thiboutot, 448 U.S. 1,

4-8 (1980), the Supreme Court held that section 1983 can be used to vindicate violations

of federal statutory rights. See also Golden State Transit Corp. v. City of Los Angeles,

493 U.S. 103, 105 (1989) (“As the language of the statute plainly indicates, the remedy

encompasses violations of federal statutory as well as constitutional rights.”). As the

Court recently made clear in Blessing v. Freestone, 117 S. Ct. 1353, 1359 (1997):

       In order to seek redress through § 1983, however, a plaintiff must assert the
       violation of a federal right, not merely a violation of federal law. We have
       traditionally looked at three factors when determining whether a particular
       statutory provision gives rise to a federal right. First, Congress must have
       intended that the provision in question benefit the plaintiff. Second, the
       plaintiff must demonstrate that the right assertedly protected by the statute
       is not so "vague and amorphous" that its enforcement would strain judicial
       competence. Third, the statute must unambiguously impose a binding
       obligation on the States. In other words, the provision giving rise to the
       asserted right must be couched in mandatory rather than precatory terms.

(Citations omitted.) See also Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 509 (1990)

("Such an inquiry turns on whether the provision in question was intended to benefit the

putative plaintiff. 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.") (internal

quotation marks, citations and brackets omitted); Harris v. James, 127 F.3d 993, 999 &

n.7 (11th Cir. 1997); Maynard v. Williams, 72 F.3d 848, 852 (11th Cir. 1996). If a




                                              8
statutory provision meets these three factors, a rebuttable presumption "that the right is

enforceable under § 1983" arises. Blessing, 117 S. Ct. at 1360.8

       “Medicaid is a cooperative federal-state program through which the Federal

Government provides financial assistance to States so that they may furnish medical care

to needy individuals.” Wilder, 496 U.S. at 502.9 Federal law does not require Florida to

provide ICF/DD services in order to participate in the Medicaid program. See 42

U.S.C.A. § 1396a(a)(10)(C)(iv), § 1396a(a)(31) (West Supp. 1997); King by King v.

Sullivan, 776 F. Supp. 645, 651 (D.R.I. 1991) ("A participating state has the option not to

offer ICF-MR services at all."). Florida, however, has elected to do so. See Fla. Stat.



       8
        For a detailed discussion of the Supreme Court’s case law in this area, see Harris,
127 F.3d at 997-1004. The Harris majority, however, failed to mention Livadas v.
Bradshaw, 512 U.S. 107 (1994). In that case, Justice Souter wrote the following for a
unanimous Court:

       We have, it is true, recognized that even the broad statutory text [of section
       1983] does not authorize a suit for every alleged violation of federal law. A
       particular statutory provision, for example, may be so manifestly precatory
       that it could not fairly be read to impose a “binding obligation” on a
       governmental unit, or its terms may be so “vague and amorphous” that
       determining whether a “deprivation” might have occurred would strain
       judicial competence. And Congress itself might make it clear that violation
       of a statute will not give rise to liability under § 1983, either by express
       words or by providing a comprehensive alternative enforcement scheme.
       But apart from these exceptional cases, § 1983 remains a generally and
       presumptively available remedy for claimed violations of federal law.

Livadas, 512 U.S. at 132-33 (citations and brackets omitted).
       9
        Title XIX of the Social Security Act, commonly known as the Medicaid Act, is
codified at 42 U.S.C. §§ 1396-1396v.

                                              9
Ann. § 409.904(3) (West Supp. 1998). "[W]hen a state elects to provide an optional

service, that service becomes part of the state Medicaid plan and is subject to the

requirements of federal law." Tallahassee Mem'l Reg'l Med. Ctr. v. Cook, 109 F.3d 693,

698 (11th Cir. 1997) (per curiam); see also McMillan v. McCrimon, 807 F. Supp. 475,

481-82 (C.D. Ill. 1992) (“The fact that the [Home Services Program] is an optional

service does not exempt it from the requirements of section 1396a(a)(8).”). It is

undisputed that the federal government shoulders about fifty-five percent of the costs that

Florida incurs in providing ICF/DD services.

       Section 1396a(a)(8) reads: "A State plan for medical assistance must . . . provide

that all individuals wishing to make application for medical assistance under the plan

shall have opportunity to do so, and that such assistance shall be furnished with

reasonable promptness to all eligible individuals." 42 U.S.C.A. § 1396a(a)(8) (West

Supp. 1997) (emphasis added). A corresponding regulation provides that the responsible

state agency "must," among other things, "[f]urnish Medicaid promptly to recipients

without any delay caused by the agency's administrative procedures," and "[c]ontinue to

furnish Medicaid regularly to all eligible individuals until they are found to be ineligible."

42 C.F.R. § 435.930(a)-(b) (1996). Another regulation states that "[t]he agency must

establish time standards for determining eligibility and inform the applicant of what they

are." 42 C.F.R. § 435.911(a) (1996). These periods are not to exceed "[n]inety days for

applicants who apply for Medicaid on the basis of disability" or "[f]orty-five days for all

other applicants." 42 C.F.R. § 435.911(a)(1)-(2) (1996). Moreover, the agency “must not

                                             10
use the time standards” as “a waiting period.” 42 C.F.R. § 435.911(e)(1) (1996). It is this

panel's task to determine whether the "reasonable promptness" clause of section

1396a(a)(8) "gives rise to a federal right."10

       Preliminarily, we note that this court's recent decision in Harris v. James did not

address the issue at bar. In Harris, the court decided the "narrow issue" of "whether

Medicaid recipients have a federal right to transportation which may be enforced in an

action under § 1983." 127 F.3d at 996. The right to transportation that the Harris

plaintiffs sought to enforce appeared "explicitly not in the Medicaid Act, but in a federal

regulation," 42 C.F.R. § 431.53. 127 F.3d at 1005. The Harris majority first rejected the

notion of "finding enforceable rights in any valid administrative interpretation of a statute

that creates some enforceable right." 127 F.3d at 1008. The court then concluded that the

transportation regulation did "not define the content of any specific right conferred upon

the plaintiffs by Congress," and thus its nexus to "Congressional intent to create federal

rights" was "too tenuous to create an enforceable right." 127 F.3d at 1010. The court

held that the plaintiffs had no enforceable rights pursuant to Medicaid Act sections

1396a(a)(1), 1396a(a)(4)(A), or 1396a(a)(19). 127 F.3d at 1010-11. In addition, the

court found "no right [to transportation] under the regulation read in conjunction with"

sections 1396a(a)(8), 1396a(a)(10)(B), or 1396a(a)(23). 127 F.3d at 1011. In so doing,




       10
         Clearly, the appellees have “identif[ied] with particularity the right[] they
claim[].” Blessing, 117 S. Ct. at 1360.

                                                 11
however, the majority made clear that it was not deciding the issue of whether section

1396a(a)(8) gives rise to a federal right to reasonably prompt provision of assistance:

       It may be that each of these statutes creates some federal right;27 similarly, it
       may be that the transportation regulation is a valid interpretation of each of
       these provisions under Chevron[, U.S.A., Inc. v. Natural Resources Defense
       Council, Inc., 467 U.S. 837 (1984)]. However, we do not think these two
       factors, even if we found both to be true, would add up to a federal right to
       transportation. In each case the transportation regulation would be valid not
       because it reasonably defines the content of rights created by the statutory
       provisions, as did the regulation in Wright[ v. City of Roanoke
       Redevelopment & Housing Authority, 479 U.S. 418 (1987)], but only
       because the regulation furthers the broad objectives underlying each
       statutory provision. In other words, we do not think that transportation to
       and from providers is reasonably understood to be part of the content of a
       right to prompt provision of assistance, comparable assistance, or choice
       among providers. Instead, if the regulation is a valid interpretation of these
       provisions, it would be because transportation may be a reasonable means
       of ensuring the prompt provision of assistance, comparable assistance, or
       choice among providers. Such links to Congressional intent may be
       sufficient to support the validity of a regulation; however, we think they are
       too tenuous to support a conclusion that Congress has unambiguously
       conferred upon Medicaid recipients a federal right to transportation
       enforceable under section 1983.

127 F.3d at 1011-12.11 In short, the majority opinion in Harris does not dictate a

particular outcome on the issue before this panel.12

       As stated above, the first factor for us to address is whether Congress has

“intended that the provision in question benefit the plaintiff." Blessing, 117 S. Ct. at



       11
          In footnote 27, the majority stated that it "assume[d] for the sake of argument
only that these provisions create some federal right." 127 F.3d at 1011 n.27.
       12
          Judge Kravitch dissented from the reasoning and result of the majority opinion
in Harris. See 127 F.3d at 1012-21 (Kravitch, J., dissenting).

                                              12
1359. Again, section 1369a(a)(8) provides that "[a] State plan for medical assistance

must . . . provide that all individuals wishing to make application for medical assistance

under the plan shall have opportunity to do so, and that such assistance shall be furnished

with reasonable promptness to all eligible individuals." 42 U.S.C.A. § 1396a(a)(8) (West

Supp. 1997) (emphasis added). The plain language of the provision's reasonable

promptness clause is clearly intended to benefit Medicaid-"eligible individuals” -- such as

the appellees in this case.13 Therefore, we do not hesitate in concluding that the clause

meets the first factor. See Sobky, 855 F. Supp. at 1146 ("Because § 1396a(a)(8)

establishes requirements for providing services and is phrased in terms of benefitting

individuals seeking Medicaid services, Medi-Cal recipients are the intended

beneficiaries.") (internal quotation marks omitted); Blanchard v. Forrest, Civ. A. No. 93-

3780, slip op. at 13 (E.D. La. Sept. 6, 1994) (reasonable promptness clause of section

1396a(a)(8) "certainly provide[s] a benefit to plaintiffs"); cf. Wilder, 496 U.S. at 510

(“There can be little doubt that health care providers are the intended beneficiaries of the


       13
           We reject the appellants' contention that "providers of services" are the intended
beneficiaries of the reasonable promptness clause. See, e.g., Sobky v. Smoley, 855 F.
Supp. 1123, 1147 (E.D. Cal. 1994) ("§ 1396a(a)(8) requires 'medical assistance under the
plan' to be furnished with reasonable promptness, and this can only mean medical
services."); McMillan, 807 F. Supp. at 480 (“[C]ourts have interpreted the second clause
in section 1396a(a)(8) -- ‘such assistance shall be furnished with reasonable promptness
to all eligible individuals’ -- as applying to benefits beyond the initial application for
Medicaid.”); King by King, 776 F. Supp. at 651 (“Placement in the Ladd Center [a public
ICF/MR] undoubtedly is ‘medical assistance under the plan.’”); see also Silver v.
Baggiano, 804 F.2d 1211, 1216 (11th Cir. 1986) (“As with the Medicaid statute as a
whole, [the “freedom of choice” provision of] § 1396a(a)(23) was intended to benefit
Medicaid recipients.”) (footnote omitted).

                                             13
Boren Amendment [to the Medicaid Act]. The provision [section 1396a(a)(13)(A)]

establishes a system for reimbursement of providers and is phrased in terms of benefiting

health care providers . . . .”); Golden State Transit, 493 U.S. at 112; Wright, 479 U.S. at

430 (“The Brooke Amendment [to the Housing Act of 1937] could not be clearer: as

further amended in 1981, tenants could be charged as rent no more and no less than 30

percent of their income. . . . The intent to benefit tenants is undeniable.”); Maynard, 72

F.3d at 852-53.

       Next, we inquire whether the appellees have "demonstrate[d] that the right

assertedly protected by the statute is not so 'vague and amorphous' that its enforcement

would strain judicial competence." Blessing, 117 S. Ct. at 1359. In other words, in the

context of this case, we ask whether enforcing putative Medicaid recipients’ right to

reasonably prompt medical assistance exceeds our institutional competence. We think

not.

       We find support for our conclusion in the Supreme Court’s decisions in Wright

and Wilder. In Wright, residents of low-income housing projects alleged that their local

public housing authority (“PHA”) had overbilled them for their utilities, and thus had

violated the Brooke Amendment -- which mandated that a low-income family “‘shall pay

as rent’ a specified percentage of its income” -- and implementing regulations that

required that “rent” include a “reasonable” amount for the use of utilities. 479 U.S. at

420. The Court rejected the PHA’s assertion that “the provision for a ‘reasonable’

allowance for utilities is too vague and amorphous to confer on tenants an enforceable

                                             14
‘right’ within the meaning of § 1983.” Wright, 479 U.S. at 431. Relying primarily on the

legality and specificity of the regulations “defining the statutory concept of ‘rent’ as

including utilities,” the Court concluded that “the benefits Congress intended to confer on

tenants are sufficiently specific and definite to qualify as enforceable rights . . . , rights

that are not, as respondent suggests, beyond the competence of the judiciary to enforce.”

Wright, 479 U.S. at 431-32.

       In Wilder, the question presented was “whether the Boren Amendment to the

[Medicaid] Act, which requires reimbursement according to rates that a ‘State finds . . .

are reasonable and adequate to meet the costs which must be incurred by efficiently and

economically operated facilities,’ is enforceable in an action pursuant to § 1983.” 496

U.S. at 501-02 (quoting 42 U.S.C. § 1396a(a)(13)(A)) (citation omitted). The Court

answered that inquiry in the affirmative and, in so doing, rejected the argument that the

amendment was “too ‘vague and amorphous’ to be judicially enforceable.” Wilder, 496

U.S. at 519. In support of its position, the Court observed that the statute and regulation

at issue set out factors which the states had to consider in adopting rates. Wilder, 496

U.S. at 519.14 The Court also stated:

       That the amendment gives the States substantial discretion in choosing
       among reasonable methods of calculating rates may affect the standard
       under which a court reviews whether the rates comply with the amendment,
       but it does not render the amendment unenforceable by a court. While there


       14
          The Court noted that the Boren Amendment provided “more guidance than the
provision at issue in Wright, which vested in the housing authority substantial discretion
for setting utility allowances.” Wilder, 496 U.S. at 519 n.17.

                                               15
       may be a range of reasonable rates, there certainly are some rates outside
       that range that no State could ever find to be reasonable and adequate under
       the Act. Although some knowledge of the hospital industry might be
       required to evaluate a State’s findings with respect to the reasonableness of
       its rates, such an inquiry is well within the competence of the Judiciary.

Wilder, 496 U.S. at 519-20 (footnote omitted).15

       Like the statutory provisions at issue in Wright and Wilder, section 1396a(a)(8)’s

requirement that “assistance shall be furnished with reasonable promptness to all eligible

individuals” presents a sufficiently specific and definite standard readily susceptible to

judicial assessment. In our view, evaluating the reasonable promptness of the provision

of Medicaid assistance is less onerous than evaluating whether a state’s Medicaid

reimbursement rates are “reasonable and adequate.” Moreover, as Wright and Wilder

indicate, the fact that a state retains substantial discretion in determining the relevant time

periods “does not render the [clause] unenforceable by a court.” Wilder, 496 U.S. at 519.

“While there may be a range of reasonable [time periods for provision of assistance],

there certainly are some [time periods] outside that range that no State could ever find to

be reasonable . . . under the [Medicaid] Act.” Wilder, 496 U.S. at 519-20. Indeed, given

the egregious facts of this case it is difficult for the appellants to argue that the appellees

do not meet the second factor. We agree with the appellees' assertion that in this context,

"[i]t is axiomatic that delays of 'several years' . . . are far outside the realm of

reasonableness."


       15
         The continuing viability of Wright and Wilder is not in doubt. See Harris, 127
F.3d at 1004 (Wright and Wilder “remain good law”).

                                                16
       We also find that the regulations further define the contours of the statutory right

to reasonably prompt provision of assistance. See Harris 127 F.3d at 1008-09 (“Wright

would seem to indicate that so long as the statute itself confers a specific right upon the

plaintiff, and a valid regulation merely further defines or fleshes out the content of that

right, then the statute -- ‘in conjunction with the regulation’ -- may create a federal right

as further defined by the regulation.”). As stated above, regulation section 435.930

requires that a state “must” "[f]urnish Medicaid promptly to recipients without any delay

caused by the agency's administrative procedures," and "[c]ontinue to furnish Medicaid

regularly to all eligible individuals until they are found to be ineligible." 42 C.F.R. §

435.930(a)-(b) (1996). As also noted, 42 C.F.R. § 453.911(a) sets forth the acceptable

time limits for eligibility determinations -- ninety days for disability-based applications

and forty-five days for all others. In our view, section 1396a(a)(8) -- as further fleshed

out by these regulations -- creates a federal right to reasonably prompt assistance, that is,

assistance provided without unreasonable delay.

       Suter v. Artist M., 503 U.S. 347 (1992), does not compel a contrary conclusion. In

that case, the plaintiffs claimed a statutory right pursuant to a section of the Adoption

Assistance and Child Welfare Act of 1980 (“AACWA”), requiring that “‘[i]n order for a

State to be eligible for payments under this part, it shall have a plan approved by the

Secretary [of Health and Human Services] which . . . provides that, in each case,

reasonable efforts will be made . . . prior to the placement of a child in foster care, to

prevent or eliminate the need for removal of the child from his home, and . . . to make it

                                              17
possible for the child to return to his home . . . .’” Suter, 503 U.S. at 351 (quoting 42

U.S.C. § 671(a)(15)). The plaintiffs in Suter alleged that the responsible state agencies

failed to make such “reasonable efforts.” 503 U.S. at 352. The Court held that the

plaintiffs did not possess a statutory right under section 671(a)(15). 503 U.S. at 350.

Although the Court did not explicitly discuss the capable-of-judicial-enforcement factor,

its holding relied in part on the fact that the “reasonable efforts” directive was one “whose

meaning will obviously vary with the circumstances of each individual case.” 503 U.S. at

360.

       Indeed, the procedural history of Suter reveals that enforcing the “reasonable

efforts” provision of the AACWA would strain judicial competence. In that case, in

March 1990, the district court entered an order enjoining the Illinois Department of

Children and Family Services (“DCFS”) from failing to assign a caseworker to each child

placed in DCFS custody within three working days of the time the child’s case was first

heard in juvenile court, and from failing to reassign a caseworker within three working

days of the date any caseworker relinquished responsibility for a particular case. Suter,

503 U.S. at 354. In April 1990, the district court established a weekly reporting

mechanism for compliance with the March 1990 injunction. The April order required that

every Friday the DCFS would provide to plaintiffs’ counsel a list of all children “whose

cases have just entered Juvenile Court or who have recently lost their caseworker, along

with the names of involved caseworkers and relevant dates of commencement or

completion of assignments.” Artist M. v. Johnson, 917 F.2d 980, 984 n.6 (7th Cir. 1990),

                                              18
rev’d sub nom., Suter v. Artist M., 503 U.S. 347 (1992). On appeal, the Seventh Circuit

remanded for the district court to make factual findings regarding the nature of delays in

caseworker assignments and the progress of DCFS reforms as they existed at the time the

trial court rendered the injunction in March 1990. Artist M., 917 F.2d at 984. In order to

render findings on these issues, the district court had to review “the February 1990 logs of

the DCFS regarding caseworker assignment” and “closely scrutinize[]” “the January and

February activities of the DCFS.” Artist M., 917 F.2d at 984 (emphasis added).

       Federal courts are simply not well-equipped for such undertakings. It is quite

evident, however, that “[w]hat constitutes ‘reasonable’ promptness in providing medical

assistance is inherently more circumscribed and judicially ascertainable than the concept

of ‘reasonable efforts’ in the placement of foster children . . . .” Sobky, 855 F. Supp. at

1147.16 We conclude that the appellees have shown that their right to reasonably prompt

provision of assistance under section 1396a(a)(8) is not so vague and amorphous that its

enforcement would strain judicial competence. See Sobky, 855 F. Supp. at 1147 (same);

Wellington v. District of Columbia, 851 F. Supp. 1, 5-6 (D.D.C. 1994) (same); Blanchard,

slip op. at 14-16 (same); see also Kessler v. Blum, 591 F. Supp. 1013, 1032 (S.D.N.Y.

1984) (quoting with approval the proposition that “[i]n the absence of an express time for


       16
          We also note that the Suter Court found it “significant” that the AACWA’s
regulations were “not specific.” 503 U.S. at 362. As discussed, this is not the case with
the relevant Medicaid regulations, which, in requiring states to provide medical assistance
without any delay attributable to administrative processes and in establishing concrete
time limits on processing Medicaid applications, flesh out the meaning of section
1396a(a)(8)’s reasonable promptness mandate.

                                             19
compliance, courts are uniquely suited to determining what is reasonable”) (internal

quotation marks omitted).

       The third factor we address is whether the reasonable promptness clause

“unambiguously impose[s] a binding obligation on the States.” Blessing, 117 S. Ct. at

1359. The language of the statute is undoubtedly cast in mandatory rather than precatory

terms. See 42 U.S.C.A. § 1396a(a)(8) (West Supp. 1997) (“A State plan for medical

assistance must . . . provide that all individuals wishing to make application for medical

assistance under the plan shall have the opportunity to do so, and that such assistance

shall be furnished with reasonable promptness to all eligible individuals.”) (emphasis

added). In addition, a state’s receipt of federal Medicaid funds is expressly conditioned

on its compliance with the provisions of section 1396a. See 42 U.S.C.A. § 1396c (West

1992). Accordingly, under the dictates of Wilder, 496 U.S. at 512, we hold that the

reasonable promptness clause meets the third factor.17

       Because they have passed the three-factor test, the appellees are entitled to a

rebuttable presumption that their statutory right is enforceable under section 1983.



       17
          Relying on section 671(a)’s preliminary language that “[i]n order for a State to
be eligible for payments under this part, it shall have a plan approved by the Secretary,”
the Suter court held that the AACWA did not require states to make reasonable efforts to
keep families together, but only that they have Secretary-approved plans pronouncing that
such reasonable efforts will be made. See Suter, 503 U.S. at 358. Section 1396a(a),
however, does not contain such limiting language. “The right [under section 1396a(a)(8)]
is not merely a procedural one that [the plan provide that medical assistance be furnished
with reasonable promptness]; rather, the Act provides a substantive right to [reasonably
prompt provision of assistance] as well.” Wilder, 496 U.S. at 510.

                                             20
Blessing, 117 S. Ct. at 1360. However, “dismissal is proper if Congress specifically

foreclosed a remedy under § 1983.” Blessing, 117 S. Ct. at 1360 (internal quotation

marks omitted). “Congress may do so expressly, by forbidding recourse to § 1983 in the

statute itself, or impliedly, by creating a comprehensive enforcement scheme that is

incompatible with individual enforcement under § 1983.” Blessing, 117 S. Ct. at 1360.

The Supreme Court has repeatedly stressed that the burden of making this showing rests

with the defendant. See, e.g., Blessing, 117 S. Ct. at 1362; Wilder, 496 U.S. at 520-21;

Golden State Transit, 493 U.S. at 107; Wright, 479 U.S. at 423. Wisely, the appellants

have made no such argument in this court. See Wilder, 496 U.S. at 520 (finding “little

merit” to the argument that “Congress has foreclosed enforcement of the Medicaid Act

under § 1983").

       In sum, we hold that the appellees have a federal right to reasonably prompt

provision of assistance under section 1396a(a)(8) of the Medicaid Act, and that this right

is enforceable under section 1983.18


       18
         Accord Sobky, 855 F. Supp. at 1146-47; Wellington, 851 F. Supp. at 5-6;
Blanchard, slip op. at 13-17. We also note that in her dissenting opinion in Harris, Judge
Kravitch expressed the view that section 1396a(a)(8),

       standing alone, creates an enforceable right to medical assistance. It plainly
       satisfies the first two prongs of the Wilder test because it is intended to
       benefit the plaintiffs and is mandatory on the States. Furthermore, even
       though the term “reasonable promptness” is arguably vague, § 1396a(a)(8)
       is specific and definite in its command that “all eligible individuals” be
       furnished “medical assistance.” Because § 1396a(a)(8) would be judicially
       enforceable against a State that refused to provide medical assistance to
       eligible individuals, the statutory provision plainly satisfies the third prong

                                             21
                                              B.

       The Eleventh Amendment provides: “The Judicial power of the United States

shall not be construed to extend to any suit in law or equity, commenced or prosecuted

against one of the United States by Citizens of another State, or by Citizens or Subjects of

any Foreign State.” U.S. Const. amend. XI. The Supreme Court has not limited its

application of sovereign immunity to the suits described in the text of the Eleventh

Amendment. “To respect the broader concept of immunity, implicit in the Constitution,

which we have regarded the Eleventh Amendment as evidencing and exemplifying, we

have extended a State’s protection from suit to suits brought by the State’s own citizens.”

Idaho v. Coeur d’Alene Tribe of Idaho, 117 S. Ct. 2028, 2033 (1997) (citing Hans v.

Louisiana, 134 U.S. 1 (1890)). Consequently, “the Eleventh Amendment constitutes an

absolute bar to a state’s being sued by its own citizens, among others.” DeKalb County

Sch. Dist. v. Schrenko, 109 F.3d 680, 687 (11th Cir.) (per curiam) (internal quotation

marks omitted), cert. denied, 118 S. Ct. 601 (1997).

       To support the district court’s grant of injunctive relief in this case, the appellees

rely on the Ex parte Young, 209 U.S. 123 (1908), doctrine, which “permits federal courts

to enjoin state officials to conform their conduct to the requirements of federal law, even

if there is an ancillary impact on the state treasury.” Schrenko, 109 F.3d at 690 (citing


       of the Wilder test. Thus, standing alone, § 1396a(a)(8) confers upon the
       plaintiffs an enforceable right to medical assistance.

127 F.3d at 1018 (Kravitch, J., dissenting) (footnotes omitted).

                                              22
Milliken v. Bradley, 433 U.S. 267, 289 (1977)). As the Court has recently reinforced, a

plaintiff’s claim seeking prospective injunctive relief against a state officer’s ongoing

violation of federal law can ordinarily proceed in federal court. Coeur d’Alene Tribe of

Idaho, 117 S. Ct. at 2040; see also Seminole Tribe of Fla. v. Florida, 116 S. Ct. 1114,

1131 nn.14 & 16 (1996).19

       This court’s recent decision in Tallahassee Memorial Regional Medical Center v.

Cook, 109 F.3d 693 (11th Cir. 1997) (per curiam), controls this issue. In Cook, two

hospitals that provide in-patient psychiatric care under Florida’s Medicaid program

brought suit against the Director of the Florida Agency for Health Care Administration

(“AHCA”), seeking injunctive and declaratory relief under section 1983 and the Boren

Amendment, 42 U.S.C. § 1396(a)(13)(A). 109 F.3d at 695-96.20 The factual background

in Cook was as follows:

       [D]ue to organizational or funding deficiencies in the state’s medical
       assistance program, there is an extreme shortage of available spaces at
       alternative care facilities for . . . adolescent psychiatric patients.

              ....




       19
         “The [Ex parte Young] doctrine is not, however, without limitations. A federal
court cannot award retrospective relief, designed to remedy past violations of federal
law.” Coeur d’Alene Tribe of Idaho, 117 S. Ct. at 2043 (O’Connor, J., with Scalia and
Thomas, JJ., concurring in part and concurring in judgment).
       20
          With certain exceptions that will be discussed, the Cook panel affirmed “on the
basis of the well-reasoned district court order,” and attached that order as Appendix A to
its opinion. 109 F.3d at 694.

                                             23
              Plaintiffs have therefore repeatedly found themselves forced into the
       posture of retaining and caring for adolescent psychiatric patients after the
       medical necessity for in-patient, acute care services ceases, because
       treatment at an alternative facility was medically necessary for the patient,
       but placement in such an alternative setting was impossible or greatly
       delayed. Under these circumstances, the Plaintiffs may not discharge the
       patients to the home, since they are not medically able to return to such an
       unsupervised setting. . . . Thus, the hospitals are forced, through no fault of
       their own, to retain these patients until placement in an alternative setting is
       possible.

               On retrospective review, [Keystone Peer Review Organization,
       which is under contract to review the Medicaid claims at issue,] abides by
       Medicaid guidelines by denying Plaintiffs payment for in-patient
       psychiatric services for adolescents at the point those services are no longer
       medically necessary. However, Florida’s failure to adopt a provision for
       payment of inappropriate level of care services causes AHCA to deny any
       reimbursement to the two hospitals for those “grace days,” regardless of the
       duration the adolescent patient has to wait before an alternative out-patient
       setting is available. AHCA, through its denial of reimbursement to
       Plaintiffs for adolescent psychiatric patient “grace days,” thereby shifts the
       deficiencies of the State’s medical assistance program, and the resulting
       fiscal impact of the same, to the Plaintiff hospitals.

109 F.3d at 700-01 (footnote omitted). The district court held that the defendant’s

practices violated the Boren Amendment, and it rendered declaratory and injunctive

decrees. 109 F.3d at 703-05. This court affirmed in full the trial court’s holdings as to

liability and declaratory relief. 109 F.3d at 694-95.

       This court also affirmed the prospective injunctive relief entered against the

defendant, AHCA:

              Defendant AHCA is enjoined from future violations of the Boren
       Amendment, as set forth herein. AHCA shall adopt for each Plaintiff
       hospital an interim outpatient reimbursement rate that is reasonable and
       adequate to meet the costs of an economically and efficiently run facility.
       AHCA shall reimburse Plaintiffs in accordance with the existing in-patient

                                              24
       rate, or the interim outpatient rate, as dictated by the medical necessity of
       each individual case. This injunction is to remain in full force and effect
       until further order of the Court.

109 F.3d at 694-95, 705 (brackets omitted). This holding confirms our belief that the

instant lawsuit fits neatly within the Ex parte Young exception. Like the hospitals in

Cook, the appellees in this case seek prospective injunctive relief to enjoin state officials

from continuing to violate federal law, that is, the Medicaid Act.

       The Cook panel, however, correctly vacated on Eleventh Amendment grounds the

provisions of the district court’s order that compelled the Florida Legislature to “amend

its Medicaid plan to include reimbursement for medically necessary inappropriate level of

care services.” 109 F.3d at 695, 704. In the present case, the district court’s Final

Judgment reads: “Accordingly, it is ORDERED AND ADJUDGED that Defendants

shall, within 60 days of the date of this Order, establish within the State’s Medicaid Plan a

reasonable waiting list time period, not to exceed ninety days, for individuals who are

eligible for placement in ICF/DD institutional care facilities.” This language only means

that the appellants must incorporate into their present scheme of providing services

procedures that ensure a waiting list period of not more than ninety days. Consequently,

the Eleventh Amendment poses no bar to this lawsuit or to the injunctive relief the district

court imposed against the appellants. See Cook, 109 F.3d at 694-95, 704-05.

                                              C.




                                              25
       The appellants' final claim is that the district court abused its discretion in

enjoining them to provide the Medicaid services at issue within ninety days. The

appellants put forth several arguments in support of this position.

       First, the appellants emphasize the optional nature of the ICF/DD program. As we

have stated, however, "even when a state elects to provide an optional service, that

service becomes part of the state Medicaid plan and is subject to the requirements of

federal law." Cook, 109 F.3d at 698; see also Weaver v. Reagen, 886 F.2d 194, 197 (8th

Cir. 1989) (“Once a state chooses to offer such optional services it is bound to act in

compliance with the [Medicaid] Act and the applicable regulations in the implementation

of those services . . . .”). Accordingly, appellants' assertion here does little to undermine

our confidence regarding the propriety of the district court’s injunction.

       Second, the appellants assert that the district court’s enjoinment prevents them

from emphasizing the provision of community-based services to developmentally

disabled individuals in place of institutional care. The appellants state that in recent years

“Florida has emphasized the use of the home and community based waiver as its principal

vehicle for expanding and improving long-term care services to individuals with

developmental disabilities.”21 The appellants' belief that the district court’s order will


       21
         The Social Security Act “permits States to offer, under a waiver of statutory
requirements, an array of home and community-based services that an individual needs to
avoid institutionalization.” 42 C.F.R. § 441.300 (1996). See 42 U.S.C.A. § 1396n(c)
(West Supp. 1997); see generally Medicaid Program; Home and Community-Based
Services, 46 Fed. Reg. 48,532 (1981). In order to participate in this program, however,
states must provide:

                                              26
necessarily impede this trend is misplaced. The plain language of the district court’s

injunction does not prevent the appellants from continuing to pursue the home and

community-based services waiver program in accordance with federal statutory and

regulatory dictates, including section 1396a(a)(8).22


       Assurance that when a recipient is determined to be likely to require the
       level of care provided in an . . . ICF/MR, the recipient or his or her legal
       representative will be--
       (1) Informed of any feasible alternatives available under the waiver; and
       (2) Given the choice of either institutional or home and community-based
       services.

42 C.F.R. § 441.302(d)(1)-(2) (1996).

        We note that at a hearing before the district court on June 10, 1996, the appellants'
counsel admitted that a waiting list also exists under the waiver program because “[t]here
is not the money available to fund the program.” Counsel did not mention the extent of
the delays.
       22
         This is not surprising given that the appellees' counsel repeatedly stressed that
the appellants should retain complete discretion in determining how to provide ICF/DD
services. At the June 10, 1996 hearing, for example, counsel stated that “[w]hat I have
asked this Court to do is require of the defendants to comply with section [1396]a(a)(8) of
the Medicaid statute and leave it to the defendants as to how they comply.” At another
hearing in October 1994, counsel told the magistrate judge:

       [T]he services that are needed by these people [the plaintiffs], according to
       the defendants and, in many cases, according to the plaintiffs, could be
       provided other than in a[n] [institutional] bed. They could be provided in
       the people’s homes.

               There is something called the waiver program. . . . [O]ur position to
       the state has always been, if they want to provide everybody with services
       so that they don’t need to be taken out of their current housing arrangement
       -- because they will get the physical therapy, the occupational therapy, the
       other on-call services that are needed, that’s great. There won’t be a
       lawsuit. They are always welcome to provide services to people in the

                                             27
       Third, the appellants devote three sentences in their initial brief to the contention

that the ninety-day time limit is overly stringent. The appellants argue that the district

court imposed this time limit without regard for the state’s resources or its recent

emphasis on providing community-based services as a substitute for institutionalization.

We have already addressed the latter contention. As to the former, the appellants' bald

statement does not convince us that the district court abused its discretion. In any event,

“[i]nadequate state appropriations do not excuse noncompliance” with the Medicaid Act.

Alabama Nursing Home Ass’n v. Harris, 617 F.2d 388, 396 (5th Cir. 1980); see also

Cook, 109 F.3d at 704.

       Fourth, the appellants argue that the injunction is overly broad. They contend, for

example, that “[t]he final judgment was not limited to the inadequacy -- lengthy waiting

time for placement in ICFs -- that produced the alleged injury.” We could not disagree

more. The injunction is crafted only toward generating a “reasonable waiting list time

period” for eligible individuals. Thus, when the appellants further assert that “[t]he

district court should have . . . ordered an[] end [to] lengthy waiting periods generally,

without dictating how the problem was to be corrected,” we find ourselves in complete

accord. And, that is what the district court did. See Lewis v. Casey, 116 S. Ct. 2174,


       manner in which they see fit.

              We have filed a lawsuit based on the one federal right which exists,
       which is the right to [a prompt] ICF/MR placement if you’re Medicaid
       eligible and meet the criteria. And if -- like anything else -- they want to
       entice people away by offering some other package of services, that’s great.

                                             28
2183 (1996) (“The remedy must of course be limited to the inadequacy that produced the

injury-in-fact that the plaintiff has established.”).23

       Fifth, the appellants argue that the district court abused its discretion because it did

not give Florida officials the option of “terminat[ing] [the] receipt of federal money rather

than assum[ing] unanticipated burdens.” The appellants' concern here is overstated, as a

recipient of federal funds under Spending Clause legislation always retains this option.

       [I]n fashioning remedies for violations of Spending Clause statutes by
       recipients of federal funds, the courts must recognize that the recipient has
       alternative choices of assuming the additional costs of complying with what
       a court has announced is necessary to conform to federal law or of not using
       federal funds and withdrawing from the federal program entirely. Although
       a court may identify the violation and enjoin its continuance or order
       recipients of federal funds prospectively to perform their duties incident to
       the receipt of federal money, the recipient has the option of withdrawing
       and hence terminating the prospective force of the injunction.




       23
          In addition, and unlike the circumstances in Casey, the appellees in this case
have certainly established that the appellants' ongoing violation of federal law is
“systemwide.” See Casey, 116 S. Ct. at 2184 & n.7. Indeed, in the trial court the
appellants did not contest the existence or length of the delays at issue. See, e.g.,
Defendants’ Official Capacity Answer & Affirmative Defenses (“Answer”) at ¶ 9(c)
(admitting that Jane Doe 1 was “seeking a residential placement in an ICF/DD facility for
8 years”), ¶ 10(d) (“Admit that [John] Doe 2 has been on a waiting list for an ICF/DD
placement for approximately five years . . . .”) and ¶ 11(e) (“Defendants deny that [John]
Doe 2b has been on a waiting list for ten years, but admit that he has been on a residential
waiting list for eight years.”). Nor did the appellants contest that the delays were
pervasive. See, e.g., Answer at ¶ 6 (appellants “admit that there are large number[s] of
individuals waiting for ICF/DD services”). Instead, they argued that the delays were
permissible under the law. The record reveals that hundreds, perhaps even thousands, of
eligible developmentally disabled persons are not being provided ICF/DD services with
anything resembling reasonable promptness. Consequently, we reject the appellants'
contention that “there was no showing of statewide or ‘system’ wide injury.”

                                               29
Guardians Ass’n v. Civil Serv. Comm’n of N.Y., 463 U.S. 582, 596 (1983) (opinion of

White, J., with Rehnquist, J.) (internal quotation marks and citation omitted).

        Finally, the appellants contend that “the relief sought and granted was essentially a

political remedy which the district court should have avoided.” This assertion is

meritless. “Injunctive relief may, of course, be applied to state officials whose actions

derogate federal Medicaid laws . . . .” Smith v. Miller, 665 F.2d 172, 175 (7th Cir. 1981)

(citing Ex parte Young).

                                    V. CONCLUSION

        For the foregoing reasons, we affirm the judgment of the district court.

                                     AFFIRMED.




BARKETT, Circuit Judge, concurring:



        I concur in Chief Judge Hatchett’s excellent opinion in this case. I write separately

to explain additionally why, in my view, the Supreme Court’s decision in Suter v. Artist

M., 503 U.S. 347 (1992), does not mandate the conclusion that the Medicaid Act’s

reasonable promptness mandate, § 1396a(a)(8), may not be enforced under 42 U.S.C. §

1983.

        In Suter, the Supreme Court held that plaintiffs could not enforce the reasonable

efforts provision of the Adoption Assistance and Child Welfare Act of 1980

                                             30
(“AACWA”), 42 U.S.C. § 671(a)(15). That section provides, in relevant part, that “[i]n

order for a State to be eligible for payments under this part, it shall have a plan approved

by the Secretary which . . . provides that, in each case, reasonable efforts will be made

(A) prior to the placement of a child in foster care, to prevent or eliminate the need for

removal of the child from his home, and (B) to make it possible for the child to return to

his home.”

       In concluding that plaintiffs could not enforce the reasonable efforts provision,

Chief Justice Rehnquist’s opinion for the Court in Suter emphasized two points. First, the

Court emphasized that, unlike the substantive right to reasonable rates at issue in Wilder

v. Virginia Hospital Ass’n., 496 U.S. 498 (1990), the AACWA did not mandate that a

State make reasonable efforts to keep families together, but only that it have a plan

approved by the Secretary of Health and Human Services that requires that reasonable

efforts be made. Suter, 503 U.S. at 358 (“the Act does place a requirement on the States,

but that requirement only goes so far as to ensure that the State have a plan approved by

the Secretary containing the 16 listed features”).

       Second, the Suter Court noted that, unlike the Medicaid Act provision in Wilder,

the term “reasonable efforts” was left undefined by Congress. “No further statutory

guidance is found as to how ‘reasonable efforts’ are to be measured.” Id. at 360. Nor did

the agency regulations further specify the meaning of the term. The Court found it

“significant . . . that the regulations are not specific and do not provide notice to the States

that failure to do anything other than submit a plan with the requisite features, to be

                                              31
approved by the Secretary, is a further condition on the receipt of funds from the Federal

Government.” Id. at 362.

       In contrast, § 1396a(a)(8) more closely resembles the Boren Amendment at issue

in Wilder than the AACWA provision in Suter. Section1396a(a)(8) not only requires

States, as a condition of federal funding, to have a plan for medical assistance providing

that such assistance will be provided with reasonable promptness, it also imposes a

substantive duty on States to provide medical assistance with reasonable promptness.

E.g. Blanco v. Anderson, 39 F.3d 969 (9th Cir. 1994). As in Wilder, “the right

[guaranteed by § 1396a(a)(8)] is not merely a procedural one [that the plan provide that

medical assistance be provided reasonably promptly]; rather the Act provides a

substantive right to [the provision of reasonably prompt medical assistance].” Wilder, 496

U.S. at 510. As Chief Judge Hatchett’s opinion demonstrates, the plain language of the

Medicaid Act and its regulations make this crystal clear. This mandatory language in

both the Act and its regulations puts States on notice that their provision of assistance

must be reasonably prompt.

       Further, unlike the AACWA provision at issue in Suter, the Medicaid regulations

flesh out the meaning of the Act’s reasonable promptness mandate by requiring States to

provide medical assistance without any delay attributable to agency administrative

processes and establishing time limits on processing Medicaid applications. Because of

this further definition, it is clear that “[w]hat constitutes ‘reasonable’ promptness is

inherently more circumscribed and judicially ascertainable than the concept of

                                              32
‘reasonable efforts’ in the placement of foster children . . . .” Sobky v. Smoley, 855 F.

Supp. 1123, 1147 (E.D. Cal. 1994). Thus, nothing in Suter alters the conclusion that §

1396a(a)(8) creates enforceable rights.




                                             33
