                               In the
 United States Court of Appeals
                For the Seventh Circuit
                           ____________

No. 02-1730
BRIAN BRUGGEMAN by and through his parents,
 Kenneth and Carol Bruggeman, et al.,
                                                 Plaintiffs-Appellants,
                                   v.

ROD BLAGOJEVICH, et al.,
                                                Defendants-Appellees.
                           ____________
              Appeal from the United States District Court
         for the Northern District of Illinois, Eastern Division.
                 No. 00 C 5392—John F. Grady, Judge.
                           ____________
       ARGUED JANUARY 6, 2003—DECIDED APRIL 7, 2003
                           ____________


  Before POSNER, DIANE P. WOOD, and WILLIAMS, Circuit
Judges.
   POSNER, Circuit Judge. Several developmentally disabled
(i.e., mentally retarded) adults, residents of Illinois, sue the
responsible state officials, in their official capacity, for
alleged violations of the federal Medicaid statute, the
Rehabilitation Act, and the Americans with Disabilities Act.
The district judge dismissed the Medicaid claim on the
ground that the plaintiffs lacked standing; he dismissed the
Rehabilitation Act claim at the same time also for lack of
standing but without explaining why. Earlier he had dis-
missed the ADA claim on the basis of our decision in
2                                                 No. 02-1730

Walker v. Snyder, 213 F.3d 344, 347 (7th Cir. 2000), which
holds that only a state, and not state officials, may be sued
for violations of the ADA and that the state is immune
from suit by virtue of the Eleventh Amendment.
   The Medicaid statute, administered by each state that
enrolls in the Medicaid program but funded 50-50 by the
state and the federal government, defrays certain medical
expenses of individuals such as these plaintiffs who lack
the wherewithal to pay the expenses themselves. The
plaintiffs live at home with their parents in the Chicago
metropolitan area. The parents would prefer their children
to live in institutions known as “Intermediate Care Facili-
ties for the Developmentally Disabled,” most of which
however are located in southern Illinois, far from Chicago.
The vacancy rate for ICF/DDs in the Chicago area is very
low, and the parents do not want to ship their children off
to ICF/DDs in the southern part of the state because of the
time and expense that would be entailed in traveling to
visit them, and so they want the defendants to adopt a plan
for expanding the number of ICF/DDs in the northern part
of the state. They argue, and for purposes of this appeal we
accept, that the defendants prefer the plaintiffs to live at
home because it would cost the state more to pay for their
care in an institution, and so the defendants refuse to write
letters urging authorization of additional ICF/DDs in the
northern part of the state to the planning agency that is
responsible for such authorizations and without the letters
the planning agency will not grant the authorizations. The
defendants’ refusal to write the letters, the plaintiffs argue,
violates provisions of the Medicaid statute requiring that
“medical assistance . . . shall be furnished with reasonable
promptness to all eligible individuals,” that the state’s
system of medical assistance to Medicaid patients “shall be
in effect in all political subdivisions of the State,” that the
assistance made available to any such patient “shall not be
No. 02-1730                                                     3

less in amount, duration, or scope than the medical assis-
tance made available to any other such individual,” that any
eligible individual “may obtain such assistance from any
institution . . . qualified to perform the . . . services required
. . . who undertakes to provide him such services,” and that
“services will be provided in a manner consistent with . . .
the best interests of the recipients.” 42 U.S.C. §§ 1396a(a)(1),
(8), (10)(B)(i), (19), (23).
  The district judge ruled that none of these provisions
entitled the plaintiffs to what they were seeking and that
therefore the plaintiffs had not been injured by a violation
of the statute and so lacked standing to sue. This is a mis-
understanding of standing. A plaintiff has standing to
sue—that is, he can invoke the jurisdiction of the court—if
he is tangibly, materially, injured by the conduct of the
defendant that he claims is unlawful and if the relief he
seeks would redress the injury in whole or in part and thus
confer a material benefit on him. Of course if his claim has
no merit, then he has not been injured by any wrongful
conduct of the defendant; but if the consequence were that
he lacked standing, then every decision in favor of a de-
fendant would be a decision that the court lacked jurisdic-
tion, entitling the plaintiff to start over in another court.
The district court decided that the plaintiffs have no right
to live in an ICF/DD that is near their parents’ home and
so the defendants’ refusal to adopt a plan that would create
vacancies in ICF/DDs near the parents’ home did not
invade a legal right of the plaintiffs and so did not cause
them an injury for which they are entitled to redress. This
was a ruling on the merits, having nothing to do with jur-
isdiction.
4                                               No. 02-1730

  Not that standing and the merits are always or in this
case clearly distinct. The more extreme a plaintiff’s claim,
the more likely he is to have standing to prosecute it; the
more moderate his claim, the less likely he is to have
standing. If all that the plaintiffs were seeking was a plan
entitling them to reimbursement for the expense of residing
in an ICF/DD anywhere in Illinois, they would, we may
assume, have a legally sound claim; but they would have
no standing to maintain it because there are ample vacan-
cies in the southern part of the state, and so the absence of
a plan would not impair any right that they claimed under
the Medicaid statute. But if they claim a right to a wider
choice of ICF/DD vacancies than the defendants are
willing to permit the planning agency to authorize, then
they are likely to have standing, because the absence of the
plan they seek is a denial of such an entitlement. Although
their brief could be clearer on the point, it seems that they
are indeed pressing this more extreme claim. The district
court rejected the claim, but that was a rejection on the
merits inaccurately described as a ruling that the plaintiffs
lack standing.
  But notice that we said only that the plaintiffs are likely
to have standing; the doubt implicit in such a formulation
arises from the tenuousness of the relation between the
relief sought in the lawsuit and an actual benefit to the
plaintiffs if they prevail. They seek merely a plan, which
might not lead to an increase in the ICF/DD capacity in
their immediate geographical area. Even if it did, they
might not benefit. An increase in supply would evoke an
increase in demand, since the plaintiffs are not the only
developmentally disabled adults in northern Illinois whose
parents would like to place them in a nearby ICF/DD and
this is not a class action. So the plan the plaintiffs seek
might not actually increase the vacancy rate. Meanwhile,
No. 02-1730                                                   5

there are some vacancies in ICF/DDs located near the
plaintiffs’ homes and for all that appears the plaintiffs will
find places in an existing such facility long before the plan
they seek would enable them to find a place in a new
facility. The potential benefit to them from the relief that
they seek thus is speculative.
  But not so speculative as to negate standing, which is a
matter of probabilities rather than certainties. North Shore
Gas Co. v. EPA, 930 F.2d 1239, 1242 (7th Cir. 1991). The suit
seeks to remove a logjam that is preventing the creation of
facilities desired by the plaintiffs, and if the likelihood of
success is conjectural so is the argument for failure based
on the possibility that any new facilities will be over-
whelmed by other applicants.
   So let us turn to the merits of the Medicaid claim, which
have been fully argued despite the district judge’s ruling
that the plaintiffs lack standing. The statutory entitlement to
reasonable promptness of medical services (42 U.S.C.
§ 1396a(a)(8)) is not infringed by the maldistribution (as it
seems to the plaintiffs) of ICF/DDs across the state. It is not
as if the plaintiffs require relocation to such a facility on an
emergency basis, in which event the remoteness of any such
facility from their homes, where they are living at present,
would deprive them of prompt treatment. Even if they did
require emergency treatment, their theory of violation
would be a considerable stretch because the statutory
reference to “assistance” appears to have reference to
financial assistance rather than to actual medical services,
though the distinction was missed in Bryson v. Shumway, 308
F.3d 79, 81, 88-89 (1st Cir. 2002), and Doe v. Chiles, 136 F.3d
709, 714, 717 (11th Cir. 1998). Medicaid is a payment
scheme, not a scheme for state-provided medical assistance,
as through state-owned hospitals. The regulations that
6                                                 No. 02-1730

implement the provision indicate that what is required is a
prompt determination of eligibility and prompt provision of
funds to eligible individuals to enable them to obtain the
covered medical services that they need, see 42 C.F.R.
§§ 435.911(a), .930(a)-(b); a requirement of prompt treatment
would amount to a direct regulation of medical services.
   The plaintiffs argue that the state is not providing iden-
tical service statewide because the vacancy rate is lower
in the southern part of the state and this favors the
people living there over those who live in the northern part.
The plaintiffs insist on a right of access to facilities not
merely in the county or the metropolitan area in which they
live but within a 45-minute drive (or 30 miles) from their
homes, as if every Medicaid recipient in Illinois were
entitled to be equidistant with every other from every
facility that rendered services for which such a recipient
might be eligible. But the plaintiffs’ argument carries even
further, because the plaintiffs vary in the degree and precise
character of their disability and as a result each has a unique
set of needs and is demanding that an ICF/DD that is
tailored to his unique needs be within the 45-minute driving
radius of his parents’ home. An unattainable goal that
cannot rationally be attributed to the statute, Harris v. James,
127 F.3d 993, 1011 (11th Cir. 1997); cf. Boatman v. Hammons,
164 F.3d 286, 290-92 (6th Cir. 1998), it doesn’t even have a
purchase in the statutory language, which requires merely
that the state not exclude any of its political subdivisions
from the state’s Medicaid plan. The plan “shall be in effect
in all political subdivisions of the State,” 42 U.S.C.
§ 1396a(a)(1), but this doesn’t mean that, as implemented,
the plan has to assure identical convenience of service
everywhere in the state. Even less plausible is the sugges-
tion that lack of uniform proximity to medical facilities
constitutes discrimination among Medicaid recipients. 42
No. 02-1730                                                   7

U.S.C. § 1396a(a)(10)(B). See Alexander v. Choate, 469 U.S.
287, 302-03 (1985).
  As for the right to obtain a needed medical service from
a provider “who undertakes to provide him such services,”
42 U.S.C. § 1396a(a)(23), the aim is to give the recipient a
choice among available facilities, not to require the creation
or authorization of new facilities. See O’Bannon v. Town
Court Nursing Center, 447 U.S. 773, 785-86 (1980); Kelly Kare,
Ltd. v. O’Rourke, 930 F.2d 170, 177 (2d Cir. 1991); see also
Catanzano v. Wing, 103 F.3d 223, 231 (2d Cir. 1996). The
language we have quoted makes this clear. Finally, the “best
interests” provision, 42 U.S.C. § 1396a(a)(19), is insuffi-
ciently definite to be justiciable, and in addition cannot be
interpreted to create a private right of action, given the
Supreme Court’s hostility, most recently and emphatically
expressed in Gonzaga University v. Doe, 122 S. Ct. 2268, 2273-
75 (2002), to implying such rights in spending statutes.
So the other circuits had held without even waiting for the
Court to give them their marching orders in Gonzaga. Harris
v. James, supra, 127 F.3d at 1009-11 and 1010 n. 24; Stewart
v. Bernstein, 769 F.2d 1088, 1093 and n. 7 (5th Cir. 1985);
Bumpus v. Clark, 681 F.2d 679, 683-84 (9th Cir. 1982), opinion
withdrawn as moot, 702 F.2d 826 (9th Cir. 1983).
  In summary, the plaintiffs’ Medicaid claim fails—on the
merits—and we move on to the other claims. We do not
understand the district court’s unexplained conclusion that
the plaintiffs lack standing to sue under the Rehabilitation
Act. So far as bears on this case, both that Act and the
Americans with Disabilities Act entitle disabled persons (as
the plaintiffs undoubtedly are) to care in the least restrictive
possible environment. There may seem to be an element
of paradox in the idea that a residential institution, such
as an ICF/DD (or an alternative called “Community
Integrated Living Arrangements” (CILA), which provides
8                                                 No. 02-1730

care in facilities that generally are smaller than ICF/DDs
and offer the residents somewhat more freedom, see
http://www.thearcofil.org/newsletter/n011102.html), pro-
vides a less restrictive alternative than living at home,
especially when some of the plaintiffs are seeking nonresi-
dential services, enabling them to continue to live at home,
though this may be their second choice. The paradox is
dispelled by recognizing that parents, by reason of age or
incapacity, may not be capable of taking good care of their
adult disabled children, in which event the home environ-
ment may, realistically, be more restrictive of the child’s
opportunity to develop than an institutional alternative.
  At all events, the plaintiffs claim that by failing to offer
an alternative to the home the defendants are violating
section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), and
more specifically an implementing regulation which pro-
vides that “recipients [of federal funding—the Rehabili-
tation Act is limited to such entities] shall administer
programs and activities in the most integrated setting
appropriate to the needs of qualified handicapped per-
sons,” 28 C.F.R. § 41.51(d), along with the corresponding
and materially identical provision of the ADA and a
regulation under the ADA. 42 U.S.C. § 12132; 28 C.F.R.
§ 35.130(d). The district court did not consider the merits of
these claims and the briefs are virtually silent on their
merits. So we shall have to remand this part of the case
unless we agree that it was properly dismissed on other
grounds.
  As with the Medicaid claim, the plaintiffs are seeking
injunctive relief against state officials in their official
capacity. Such a suit is a suit against the state, and unless a
state consents to be sued in federal court, which Illinois has
not done, the suit is barred by the Eleventh Amendment.
There is the Ex parte Young exception discussed below and
No. 02-1730                                                      9

there is also the provision of the Civil Rights Act of 1964
that “a State shall not be immune under the Eleventh
Amendment of the Constitution of the United States from
suit in Federal court for a violation of section 504 of the
Rehabilitation Act.” 42 U.S.C. § 2000d-7(a)(1). The defen-
dants argue that this provision is unconstitutional. Their
argument is barred by Stanley v. Litscher, 213 F.3d 340, 344
(7th Cir. 2000), where we held that because section 504 is
applicable only to state activities that receive financial
assistance from the federal government, a state’s decision to
accept such assistance is a decision to waive its Eleventh
Amendment immunity. See also Koslow v. Commonwealth of
Pennsylvania, 302 F.3d 161, 170-71 (3d Cir. 2002); Nihiser v.
Ohio EPA, 269 F.3d 626, 628 (6th Cir. 2001); Jim C. v. United
States, 235 F.3d 1079, 1081-82 (8th Cir. 2000) (en banc);
Pederson v. Louisiana State University, 213 F.3d 858, 875-76
(5th Cir. 2000); Sandoval v. Hagan, 197 F.3d 484, 493-94 (11th
Cir. 1999), rev’d on other grounds, 532 U.S. 275 (2001). The
defendant’s constitutional argument not only is blocked by
stare decisis but is also forfeited, for by failing to cite Stanley
(except on an unrelated point) or to discuss the reasoning
underlying it the defendants failed to preserve their consti-
tutional challenge to 42 U.S.C. § 2000d-7(a)(1).
  Stanley does not bar an Eleventh Amendment defense
against the plaintiffs’ ADA claim, however, because 42
U.S.C. § 2000d-7(a)(1) does not mention the ADA and so
creates one of the few differences between that statute
and the Rehabilitation Act. However, Ex parte Young, 209
U.S. 123 (1908), authorizes, notwithstanding the Eleventh
Amendment, suits for prospective injunctive relief against
state officials who as in this case are sued in their official
capacity. It is true that Walker v. Snyder, cited earlier, held
that only the state, and not state officials, may be sued for
violating Title II of the ADA. But that holding, uniformly
rejected by the other courts to have considered the issue, see
10                                                No. 02-1730

Carten v. Kent State University, 282 F.3d 391, 396-97 (6th Cir.
2002); Randolph v. Rodgers, 253 F.3d 342, 348 (8th Cir. 2001);
Roe v. Ogden, 253 F.3d 1225, 1233-34 (10th Cir. 2001); Nelson
v. Miller, 170 F.3d 641, 646-47 (6th Cir. 1999); Armstrong v.
Wilson, 124 F.3d 1019, 1025-26 (9th Cir. 1997), did not
survive Board of Trustees v. Garrett, 531 U.S. 356, 374
n. 9 (2001), where the Supreme Court said that such a suit is
indeed authorized by Ex parte Young. Although Garrett was
a suit under Title I of the ADA, which governs the employ-
ment of disabled persons, there is, as Walker had noted, 213
F.3d at 346, no relevant difference between Title I and Title
II, which governs access to services, so far as the applicabil-
ity of Ex parte Young is concerned.
   So the dismissal of the plaintiffs’ claims under the Reha-
bilitation Act and the ADA must be set aside and the case
remanded. For guidance on remand, we commend to the
parties and the district court Olmstead v. L.C., 527 U.S. 581
(1999). With reference to 42 U.S.C. § 12132 and its imple-
menting regulation, 28 C.F.R. § 35.130, the Court explained
that “if . . . the State were to demonstrate that it had a
comprehensive, effectively working plan for placing
qualified persons with mental disabilities in less restrictive
settings, and a waiting list that moved at a reasonable pace
not controlled by the State’s endeavors to keep its institu-
tions fully populated,” the state would not be violating the
regulation. 527 U.S. at 605-06. The purpose of the regulation
is not to constitute the federal courts the supervisors of the
care and treatment of disabled persons. It is to prevent the
isolation or segregation of the disabled. The issue on
remand will be whether Illinois has a plan oriented to that
end for developmentally disabled adults.
                                       AFFIRMED IN PART,
                         VACATED IN PART, AND REMANDED.
No. 02-1730                                            11

A true Copy:
       Teste:

                      _____________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                USCA-02-C-0072—4-7-03
