Vol. 24 Annals of Health Law 357
democratically accountable solutions. The threat of private litigation remains important leverage for groups who might otherwise be marginalized
in the political process. Private enforcement of the Medicaid statute has
shaped Medicaid policy nationwide, both through the use of injunctions to
bind state Medicaid agencies, and by spurring and influencing administrative and legislative policy changes.
B. Legal Avenues to Enforcing Medicaid Rights
This section analyzes the legal framework in which Medicaid litigation
takes place. The Medicaid statute does not provide an express cause of ac-
tion,150 nor does it create an implied right of action.151 Private enforcement,
therefore, relies on either a cause of action implied in the Supremacy
Clause or through the explicit cause of action in 28 U.S. C. § 1983.152
By far the most common approach in Medicaid litigation is to rely on the
cause of action provided in § 1983.153 Section 1983 provides a cause of action to challenge “the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws” of the United States caused by any
person acting “under color of” state law.154 In Maine v. Thiboutot, the Supreme Court held that § 1983 provides a cause of action for deprivations of
purely statutory rights as well as deprivations of constitutional rights.155
Not all statutes create a right that can be enforced through the § 1983
cause of action. In Pennhurst State School and Hospital v. Halderman,156
the Supreme Court held that a statute does not create a right if Congress indicated only a “preference” rather than an obligation on the states.157 Furthermore, no right exists if the statute provides an exclusive remedy for violations of its terms.158 When the Supreme Court considered the Medicaid
Act’s requirement that health care providers receive reasonable reimbursement rates, in Wilder v. Virginia Hospital Association, the Court held that
providers could use § 1983 to enforce that requirement.159 The Court rea-
150. Jost, supra note 89, at 146.
151. See, e.g., Stewart v. Bernstein, 769 F.2d 1088, 1092–94 (5th Cir. 1985).
152. Bobroff, supra note 13, at 33-34.
153. See Rochelle Bobroff & Jane Perkins, Recent Developments in Court Access for
Medicaid and Medicare Cases, 42 CLEARINGHOUSE REV. 246, 249 (2008) (indicating the
Medicaid Act generates the most activity for § 1983 actions); see also Donenberg, supra
note 13, at 1502 (stating § 1983 “actions have become a primary mechanism by which individual beneficiaries and advocacy groups have forced state Medicaid agencies to comply
with federal Medicaid requirements”).
154. 42 U.S. C. A. § 1983 (West, WestlawNext through P.L. 113-174).
155. Maine v. Thiboutot, 448 U.S. 1, 4 (1980).
156. Pennhurst State School & Hosp. v. Halderman, 451 U.S 1 (1981).
157. Id. at 18–19.
158. Id. at 28.
159. Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 498 (1990).
