Vol. 24 Annals of Health Law 373
Court of Appeals held that “the regulation’s ninety-day requirement merely
further defines or fleshes out the content of the right to an opportunity for
Medicaid fair hearings, such that Plaintiffs have a right—enforceable under
§ 1983—to final administrative action ordinarily, within ninety days’ of
their request.” 275 The Court reasoned that although the Act does not specify
a time frame within which a state must provide a hearing, the statutory requirement to provide an “opportunity” for such hearing with “reasonable
promptness” encompasses a right to “some period of time.” 276 The regulation, by specifying ninety days, “simply defines what that period of time
The Tenth Circuit took a similar approach when considering regulations
implementing the Americans with Disabilities Act’s (“ADA”) ban on intentional discrimination. 278 The court found that these regulations were enforceable because they were essentially an extension of the statute. 279 Quoting Sandoval, the court reasoned:
[S]uch regulations, if valid and reasonable, authoritatively construe the
statute itself . . . and it is therefore meaningless to talk about a separate
cause of action to enforce the regulations apart from the statute. A Congress that intends the statute to be enforced through a private cause of action intends the authoritative interpretation of the statute to be so enforced as well. 280
So long as the regulations did not go beyond the scope of the statute, the
regulations could be enforced as part of the statutory right. 281 What these
two approaches recognize is that Congress is sophisticated enough to recognize and anticipate the interaction between statutory text and regulations.
That is, the Medicaid Act’s text reflects Congress’ recognition that beneficiaries are entitled to a “prompt” decision, which would include some limited timeframe, but left it to the agency to define the precise scope of the
right. 282 The text of the ADA banned intentional discrimination, but left
many of the details of implementing such a ban to the agency. 283
275. Id. (citing 42 C.F.R. § 431.244(f)) (internal quotations omitted).
276. Id. at 255-56.
277. Id. at 255.
278. See Chaffin, 348 F.3d at 858.
279. Id at 859.
280. Id at 858. (quoting Alexander v. Sandoval, 532 U.S. 275, 284 (2001)).
281. See id. (“The regulations simply provide the details necessary to implement the
statutory right created by § 12132 of the ADA. They do not prohibit otherwise permissible
282. Shakhnes v. Berlin, 689 F.3d 244, 255-56 (2d Cir. 2012) cert. denied, 133 S. Ct.
283. Chaffin v. Kan. State Fair Bd., 348 F.3d 850, 858 (10th Cir. 2003), overruled on
other grounds by, Cinnamon Hills Youth Crisis Ctr., Inc. v. Saint George City, 685 F.3d 917