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soned that federal agency oversight was insufficient to bar private enforcement of the provision.160 As detailed above, the courts have since recognized the ability of Medicaid beneficiaries to individually enforce various
provisions of the Medicaid Act.161
However, recent Supreme Court doctrine has significantly limited the
availability of § 1983 by narrowing the definition of what counts as a
“right” that can be enforced through the cause of action.162 In 2002, the
Court in Gonzaga University v. Doe revised its test for determining whether
a statute creates a privately enforceable right.163 The Court held that congressional intent would be decisive and that the marker of congressional intent would be the text of the statute.164 The Court concluded, therefore, that
the statute must contain “explicit rights-creating” language “phrased in
terms of the person benefited” to create a right for the purposes of
§ 1983.165 Following Gonzaga, private enforcement of Medicaid rights has
dwindled because the statute is primarily phrased in terms of requirements
state governments must follow in order to receive federal funding.166
Therefore, beneficiaries are seeking other options to enforce Medicaid
rights.167 Specifically, there has been a large shift towards preemption
claims,168 which rely on an implied cause of action from the Supremacy
Clause and federal question jurisdiction from § 1331.169 Several circuit
courts have been willing to find the Medicaid law “supreme” and invalidate
160. Id. at 522.
161. See, e.g., Pennhurst State School & Hosp., 451 U.S. at 18-19; Wilder, 496 U.S. at
162. See Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002) (holding that statutory text
must include explicit rights-creating language to create a right for purposes of § 1983).
163. See id. at 283-86.
164. Id. at 285–86.
165. Id. at 284.
166. See 42 U.S. C. A. § 1396a (West, WestlawNext through P.L. 113-174); see also
Bobroff, supra note 13, at 63–66 (documenting circuit court cases restricting private enforcement of Medicaid provisions after Gonzaga).
167. See Bobroff, supra note 13, at 69 (“there has been complete agreement that
[claims based on preemption under the Supremacy Clause are] a viable avenue for enforcing
safety net statutes against states”); see also Rochelle Bobroff, Medicaid Preemption Claims
in Douglas Avert the Astra Abyss, 122 YALE L.J. ONLINE 19, 22 (2012) (“Medicaid preemption claims, must rely on the availability of alternative remedies”); Medicaid at Forty, supra
note 91, at 21 (discussing Medicaid’s support for a health care safety net and how it is essential to low income populations in order to access health care).
168. See Rochelle Bobroff, Medicaid Preemption Remedy Survives Supreme Court
Challenge, 46 CLEARINGHOUSE REV. 35, 35 (2012) (“Medicaid preemption claims against
states are vital because the Supreme Court has constricted the availability of other remedies.”).
169. Rosemary B. Guiltinan, Enforcing a Critical Entitlement: Preemption Claims as
an Alternative Way to Protect Medicaid Recipients’ Access to Healthcare, 51 B. C. L. REV.
1583, 1601–02 (2010).