Insurance – Free-Choice-of-Provider Provision – Medicaid Act – Individual Rights – 24 USC §1983 – Medicaid Beneficiaries

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The free-choice-of-provider provision of the Medicaid Act, 42 U.S.C. § 1396a(a)(23), creates individual rights enforceable via 42 U.S.C. §1983.

We affirmed the judgment of the district court enjoining the disqualification of the plaintiff provider.

This case marked the first time we have been called upon to resolve the same legal issue: whether the free-choice-of-provider provision of the Medicaid Act, 42 U.S.C. § 1396a(a)(23), creates individual rights enforceable via 42 U.S.C. §1983.

South Carolina insisted we ought to abandon our prior position considering the Supreme Court’s recent opinion in Health and Hospital Corp. of Marion County v. Talevski, 599 U.S. 166 (2023). It argued that Talevski compels the conclusion that the free-choice-of-provider provision cannot be enforced by individual Medicaid beneficiaries.

We agreed that enforceable rights under §1983 are dependent on congressional authorization, which under no circumstances may be casually implied. While Talevski offered an illuminating analysis of the issue before us and a useful new example of provisions enforceable via §1983, we do not read it as toppling the existing doctrinal regime. And even if Talevski could be read as embracing a wholly new test, we hold that the free-choice-of-provider provision passes it. Accordingly, we remained in the good company of four of our sister circuits and reaffirmed that a Medicaid beneficiary may use §1983 to vindicate her right under the Medicaid Act to freely choose among qualified healthcare providers, of which plaintiff Planned Parenthood is one.

In sum, we concluded that the free-choice-of-provider provision speaks “in terms that could not be clearer” in “unambiguously conferr[ing] rights.” Gonzaga, 536 U.S. at 280 (internal quotation marks omitted); Talevski, 599 U.S. at 184. The language specifies an entitlement given to each Medicaid beneficiary: to choose one’s preferred qualified provider without state interference.

We also continued to affirm that the Medicaid Act and §1983 can work together in harmony for beneficiaries to enforce the free-choice-of-provider provision.

The language of the qualified medical provider provision cannot be stressed too often. It dictates that “any individual” eligible for Medicaid “may obtain” services from 32 “any” provider “who undertakes to provide him such services.” 42 U.S.C. § 1396a(a)(23). The State and members of the Court have expressed the real and genuine concern that private rights under §1983 will migrate from vindications of rights to the redress of innumerable violations of federal law. There is the undoubted danger of opening private rights of action floodgates, but there is the concomitant danger of drying up the rights that Congress wished to safeguard. If the language of this medical provider provision does not suffice to provide a right of action, then it is hard to conceive of any text, short of magic words beyond the usual practice of courts to dictate, that would permit one. It all comes down to a straightforward matter of congressional intent, and in this particular case, we think that intention clear.

Affirmed.

Planned Parenthood South Atlantic v. Kerr (Lawyers’ Weekly No. 001-023-24, 33 pp.) (J. Harvie Wilkinson III, J.) Appealed from U.S. District Court for the District of South Carolina at Columbia (Mary G. Lewis, J.) Argued: John J. Bursch, Alliance Defending Freedom, Washington, D.C., for appellant; Avi Kupfer, Mayer Brown LLP, Chicago, Illinois, for appellees; On Brief: Kelly M. Jolley, Ariail B. Kirk, Jolley Law Group, LLC, Columbia, South Carolina; Christopher P. Schandevel, Alliance Defending Freedom, Lansdowne, Virginia, for appellant; Nicole A. Saharsky, Mayer Brown LLP, Washington, D.C.; Alice Clapman, Jennifer Sandman, Planned Parenthood Federation of America, Washington, D.C.; M. Malissa Burnette, Kathleen McDaniel, Burnette, Shutt & McDaniel, PA, Columbia, South Carolina, for appellees; Julie Rikelman, Pilar Herrero, Joel Dodge, Center for Reproductive Rights, New York, New York; Da Hae Kim, National Asian Pacific American Women’s Forum, Washington, D.C., for Amici Reproductive Rights and Justice Organizations and Allied Organizations; Martha Jane Perkins, Catherine McKee, Sarah Jane Somers, Sarah Grusin, National Health Law Program, Chapel Hill, North Carolina, for Amici National Health Law Program, South Carolina Appleseed Legal Justice Center, Virginia Poverty Law Center, North Carolina Justice Center, Charlotte Center for Legal Advocacy, IPAS, and Sexuality Information and Education Council of the United States. Janice M. Mac Avoy, Alexis R. Casamassima, Danielle M. Stefanucci, Fried, Frank. Harris, Shriver & Jacobson LLP, New York, New York, for Amici American Academy of Family Physicians; American Academy of Pediatrics; American College of Nurse-Midwives; American College of Obstetricians and Gynecologists; American College of Physicians; American Medical Association; American Psychiatric Association; Nurse Practitioners in Women’s Health; Society for Maternal-Fetal Medicine; Society of Gynecologic Oncology; and Society of OB/GYN Hospitalists. Court of Appeals for the Fourth Circuit