

                  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 &amp; 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. &amp; 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
