{"id":5171,"date":"2012-10-27T20:43:10","date_gmt":"2012-10-28T00:43:10","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/crcl\/?p=5171"},"modified":"2013-11-11T14:15:41","modified_gmt":"2013-11-11T19:15:41","slug":"the-bounds-of-interpretation-and-private-enforcement-of-the-medicaid-act-2","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/the-bounds-of-interpretation-and-private-enforcement-of-the-medicaid-act-2\/","title":{"rendered":"Statutory Rights, Related Regulations, and the Bounds of \u201cInterpretation\u201d"},"content":{"rendered":"

The following post was contributed by a HarvardCRCL.org executive board member. The article offers a critique of the recent Second Circuit decision in<\/em>\u00a0Shaknes v. Berlin.<\/p>\n

In Gonzaga University v. Doe<\/em>,[1] the Supreme Court set a high bar for find\u00ading that a statute cre\u00adates a private right of action un\u00adder 42 U.S.C. \u00a7 1983.[2] But the Court has not ad\u00addressed wheth\u00ader regulations<\/em> can establish enforceable rights. Some federal courts of ap\u00adpeals have con\u00adcluded that a regula\u00adtion cannot itself create a right but \u201cmay [still] be rel\u00adevant in deter\u00admin\u00ading the scope <\/em>of [a] right confer\u00adred [in a statute]\u201d insofar as it amounts to \u201can agency in\u00adter\u00ad\u00adpre\u00ad\u00ad\u00adta\u00adtion of [that] stat\u00adute.\u201d[3] In multiple cases, the Second Circuit has declined to an\u00adswer this ques\u00ad\u00ad\u00adtion, de\u00adciding the issues before it assuming that those circuits\u2019 position is cor\u00adrect.[4] Re\u00adcently, in Shakh\u00adnes v. Ber\u00adlin<\/em>,[5] the court considered whether a particular regulation was a \u201cvalid in\u00adter\u00adpreta\u00adtion\u201d of a statutory right.[6] Proceeding on the assumption that the statute at issue defined a right with a flexible stan\u00addard, the court held that a related regula\u00adtion was actionable as a \u201cvalid interpretation\u201d under 42 U.S.C. \u00a7\u00a01983 even though it imposed a rigid rule where none existed before.[7] Un\u00adfor\u00adtu\u00adnate\u00adly, the de\u00adci\u00adsion pro\u00advides no clear prin\u00adciple by which future courts may decide when a regu\u00adla\u00adtion in\u00adter\u00adprets a statute in the context of 42 U.S.C. \u00a7 1983. Mean\u00adwhile, a Sev\u00adenth Cir\u00ad\u00adcuit opinion resolves an analogous issue in the context of notice-and-comment rulemaking with a prin\u00adci\u00adpled distinc\u00adtion between rule inter\u00adpreta\u00adtion and rule creation.[8] It is even con\u00adsist\u00adent with the precedent upon which Shakhnes <\/em>relies. The Second Circuit would have established a more manageable test for questions like the one at issue in Shakhnes <\/em>had it drawn a similar distinction.<\/p>\n

The provision of the Medicaid Act[9] at issue in Shakhnes<\/em> requires states administering Medi\u00adcaid programs to \u201cgrant[] an opportunity for a fair hearing before the State agency to any individual [in certain circumstances].\u201d[10] A regulation further describing the Medicaid fair hearing process pro\u00advides that \u201c[t]he agency must take final administra\u00adtive action .\u00a0.\u00a0. within 90 days\u201d of the request of a fair hearing except under particular circumstances.[11]<\/p>\n

The Shakhnes <\/em>plaintiffs were a class of Medicaid applicants and recipients who had re\u00adquest\u00aded, or would request, fair hearings to challenge unfavorable decisions by the defendants, state and local agencies administering the program. The plaintiffs alleged that the Medicaid agen\u00adcies violated their statutory fair hearing rights by failing to take action within the 90-day post-hearing window set forth in a regulation accompanying the statute.[12]<\/p>\n

Applying Gonzaga<\/em>, the district court decided that the statutory provision at issue estab\u00adlish\u00aded a right to a fair hearing and a right to agency action at some point after such a fair hear\u00ading.[13] In light of the accompanying regulation, it also held that the plaintiffs had a right to agen\u00adcy action with\u00adin 90 days of the fair hear\u00ading.[14] The court ordered declaratory and injunctive relief.[15] On appeal, the defendants argued in part that the plaintiffs had no enforceable right to agency action within 90 days because the reg\u00adu\u00adla\u00adtion containing the 90-day deadline was not a valid interpretation of the statutory right.[16] The Sec\u00adond Circuit affirmed as to the scope of the statutory right and va\u00adcat\u00aded and remanded for further proceedings on other grounds.[17] Writing for the panel, Judge Straub concluded that the regula\u00adtion\u2019s 90-day deadline was enforceable as an interpretation of the statute\u2019s fair hearing guarantee.[18]<\/p>\n

The court purported to apply a standard \u201cwell-settled\u201d in precedent to decide the scope of what 42 U.S.C. \u00a7 1983 rendered actionable.[19] To illumi\u00adnate the standard, it first looked to the Su\u00adpreme Court\u2019s decision in Wright v. City of Roanoke Redevelopment & Housing Authority<\/em>.[20] In Wright<\/em>, the plaintiffs sued a housing auth\u00adority un\u00adder 42 U.S.C. \u00a7 1983 for billing more than thirty percent of each plaintiff\u2019s income for the total of his or her rent and utilities.[21] A statute provided that \u201cten\u00adants could be charged as rent no more and no less than 30 percent of their income,\u201d while a cor\u00adres\u00adpond\u00ad\u00ading \u201cregulation[] .\u00a0.\u00a0. expressly re\u00adquired that a rea\u00adson\u00adable amount for utilities be in\u00adcluded in rent.\u201d[22] The Court de\u00adcid\u00aded that the plaintiffs had an enforce\u00adable right to a calculation of \u201crent\u201d that included the cost of utilities be\u00adcause the reg\u00adu\u00ad\u00adla\u00adtion merely defined the ambiguous term \u201crent.\u201d[23]<\/p>\n

Next, the panel turned to D.D. v. New York City Board of Education<\/em>,[24] in which parents, suing on behalf of their children, alleging that delays in delivery of special education services in a New York City public school violated their children\u2019s rights to such services.[25] The Individuals with Disabilities Education Act (IDEA) required \u201cspecial education .\u00a0.\u00a0. services [to be] provided in conformity with [an] in\u00addi\u00advid\u00adualized education program [IEP].\u201d[26] A cor\u00adres\u00adponding regulation required that IEPs be \u201cimple\u00adment\u00aded as soon as possible<\/em>\u201d fol\u00ad\u00adlowing their finalization.[27] The court held that the school sys\u00adtem\u2019s fail\u00adure to implement the IEPs \u201cas soon as possible\u201d pursuant to the regulation\u2019s require\u00adment violated the plain\u00adtiffs\u2019 right to IEP-conforming services because the reg\u00adulation \u201cdefine[d] the scope\u201d of the statutory right.[28]<\/p>\n

Finally, the court turned to another circuit\u2019s reasoning about the enforceabili\u00adty of a reg\u00adulation and cer\u00adtain related Medicaid Act provisions (all different from the provisions considered in Shakh\u00adnes<\/em>).[29] In Harris v. James<\/em>,[30] the plaintiffs sued under 42 U.S.C. \u00a7 1983, arguing that the state violated their right to transportation to and from Medicaid service providers by failing to provide this transportation.[31] The Harris <\/em>court con\u00adsidered whether the guarantee of such trans\u00adportation in a regulation[32] was enforceable under 42 U.S.C. \u00a7 1983, given that var\u00adi\u00adous statutory provisions in the Medicaid Act arguably guaranteed certain related rights.[33] The Act required, for example, that the state agency \u201cprovide medical assistance \u2018with reason\u00adable prompt\u00adness.\u2019\u201d[34] The Shakhnes <\/em>court reasoned that the regulation went \u201cbeyond ex\u00adpli\u00adcating the spe\u00adcific content of the statu\u00adtory provision and impose[d] dis\u00adtinct obligations[; accord\u00adingly it was] too far removed from Con\u00adgressional intent to constitute a federal right en\u00adforce\u00adable under \u00a7 1983.\u201d[35] <\/em><\/p>\n

These three decisions that Shakhnes<\/em> addressed were all appropriate analogies be\u00ad\u00adcause each considered whether a regulation was a valid interpretation of \u2014 or went beyond inter\u00ad\u00adpre\u00adt\u00ading \u2014 a statute. But the court did not adequately derive a unifying principle from these cases. Instead, it merely quoted conclusory language to support its conclusion. In discussing Wright<\/em>, the Shakhnes <\/em>court adverted to the Third Circuit\u2019s observation about the case that \u201cthe regulation at issue .\u00a0.\u00a0. merely defined <\/em>the spe\u00adcific right that Con\u00adgress already had con\u00adferred through the stat\u00adute.\u201d[36] In reviewing D.D.<\/em>, the pan\u00adel quoted multiple times the conclusion that the regulation \u201cmerely defines the scope\u201d of the stat\u00adu\u00adtory right.[37] It never explained further what it was about the regulation\u2019s relation to the stat\u00adute that led the court to its conclusion. In dis\u00adtin\u00adguish\u00ading the case at bar from Harris<\/em>, the court re\u00adlied on the Eleventh Circuit\u2019s statement that the regula\u00adtion considered in that case could not \u201c\u2018rea\u00adson\u00ad\u00ad\u00adably [be] un\u00adderstood to be part of the content<\/em> of\u2019 [the allegedly predicate] statutory right,\u201d[38] and that the regu\u00adla\u00adtion went \u201cbeyond explicating the specific con\u00adtent of [a] statutory provi\u00adsion.\u201d[39] Unfor\u00adtunately, none of the lan\u00adguage quoted from these cases meaningfully guides future courts decid\u00ading wheth\u00ader a regu\u00adlation is a valid inter\u00adpretation of a statutory right. Instead, each quotation effec\u00adtive\u00adly re\u00adstates the issue that it purports to resolve \u2014 that is, it begs the question.<\/p>\n

However, a principled distinction does exist between a regulation that is a valid interpre\u00adtation of a stat\u00adu\u00adtory right and one that imposes new obligations. Although not rendered in the con\u00adtext of private rights of action under 42 U.S.C. \u00a7 1983, a decision from the Seventh Circuit explains just this dis\u00adtinc\u00adtion. The issue before the court in Hoctor v. Department of Agricul\u00adture<\/em>[40] was whether an agency\u2019s internal memo\u00ad\u00adran\u00addum could bypass the Administrative Pro\u00adcedure Act\u2019s notice-and-com\u00adment rule\u00admak\u00ading requirements thanks to a provision in the Act exempting agency state\u00adments that merely interpret prior regulations.[41] The unchal\u00adlenged regu\u00adla\u00adtion in Hoctor <\/em>required that a \u201cfacility [housing ani\u00admals] be con\u00adstructed of such ma\u00adterial and of such strength as appropriate for the ani\u00admals in\u00advolved [and that t]he in\u00addoor and out\u00addoor housing facilities .\u00a0.\u00a0. be structurally sound and .\u00a0.\u00a0. main\u00adtained in good repair to pro\u00adtect the animals from injury and to contain the an\u00adi\u00admals.\u201d[42] The year after the agency adopted this regula\u00adtion, it issued an internal memo\u00adrandum re\u00adquiring that \u201call danger\u00adous ani\u00admals, defined as includ\u00ading, [e.g.,] lions, tigers, and leopards, .\u00a0.\u00a0. be [kept] inside a peri\u00admeter fence at least eight feet high.\u201d[43] Hoctor kept a variety of such ani\u00admals inside a perimeter fence six feet high.[44] The De\u00adpartment of Agriculture sanc\u00adtion\u00aded Hoctor for the inadequacy of his fence, although not be\u00adcause the fence was imper\u00admis\u00adsible under the (unchal\u00adlenged) regulation.[45] Rather, \u201c[t]he only ground on which the Depart\u00adment de\u00adfend\u00ad[ed] sanc\u00adtion\u00ading Hoctor .\u00a0.\u00a0. [wa]s that requiring an eight-foot-high peri\u00adme\u00adter fence for dan\u00ad\u00adgerous animals is an inter\u00adpre\u00adta\u00adtion of the Department\u2019s own structural-strength regulation.\u201d[46]<\/p>\n

The Seventh Circuit panel explained that the rule was not a valid interpretation of the reg\u00adu\u00adlation and that it was instead a novel rule inspired <\/em>by the regu\u00adla\u00adtion.[47] Resolv\u00ading this famil\u00adiar question about the legislative\/interpretive divide in administrative law, the court distinguished statements that \u201cpar\u00adtic\u00adu\u00adlarize [prior statements of law] through in\u00adter\u00adpre\u00adta\u00adtion\u201d from those that \u201cimpose a[n independent] du\u00adty\u201d by reasoning that strict numeri\u00adcal lim\u00adits gen\u00ader\u00adally can\u00adnot be derived from flexible standards.[48] This objection to the alleged \u201cin\u00adter\u00adpre\u00adtation\u201d is intuitive: that a fence must be eight feet high does not obvi\u00adous\u00adly follow from the stat\u00adute\u2019s require\u00adments since, absent further evidence, a fence of such height can\u00adnot be ex\u00adpect\u00aded to meet the regulation\u2019s goals substantial\u00adly better than a fence one inch short\u00ader.[49] The partic\u00adular height of eight feet has no special signifi\u00adcance. A rule like this, not derived from the under\u00adly\u00ading statute, is \u201cleg\u00adis\u00adla\u00adtive\u201d (or \u201csub\u00adstan\u00adtive\u201d).[50]<\/p>\n

But numerical limits can<\/em> play a part (albeit a bounded one) in interpretation:<\/p>\n

[h]ad the Department of Agriculture said in the internal memorandum that it could not imagine<\/em> a case in which a perimeter fence for dangerous animals that was low\u00ad\u00ader than eight feet would provide secure containment, and would there\u00adfore presume, sub\u00adject to rebuttal<\/em>, that a lower fence was insecure, it would have been on stronger ground. For it would have been tying the rule to the animating standard<\/em>, that of se\u00adcure contain\u00adment, rather than making it stand free of the standard, self-contained, un\u00ad\u00adbending, ar\u00adbitrary. To switch me\u00adta\u00adphors, the \u2018flatter\u2019 a rule is, the harder it is to con\u00adceive of it as merely spell\u00ading out what is in some sense latent<\/em> in a statute or reg\u00adulation, and the eight-foot rule in its present form is as flat as they come.[51]<\/p><\/blockquote>\n

The understanding of the legislative\/interpretive divide described in Hoctor <\/em>boils down to this: one cannot generally interpret<\/em> an existing command by im\u00adpos\u00ading an inflexible rule where no such rule already existed. If the prior command in\u00adcludes some vague\u00adness, res\u00ado\u00adlution of that vagueness into a strict rule is a legislative<\/em> (not merely an inter\u00adpretive<\/em>) function.<\/p>\n

 <\/p>\n

The Shakhnes<\/em> defendants failed to make a clear Hoctor<\/em>-style argument to the court. At times their brief seems to sug\u00adgest that as between \u201crigid\u201d and \u201cflexible\u201d language in putatively interpretive regulations, only the latter is genuinely \u201ctied .\u00a0.\u00a0. to the underlying statute itself.\u201d [52] But the brief does not elaborate on this point. At oral argument, too, counsel for the defendants failed to explain this distinction.<\/p>\n

Despite counsel\u2019s failure to raise this precise argument, the Second Circuit might have drawn the Hoctor <\/em>distinction on its own. Had it done so, it would still have remained faith\u00adful to Wright<\/em>, D.D.<\/em>, and Harris<\/em>. Applying the reasoning in Hoctor<\/em> leaves the holdings of all three of those cases undisturbed. In Wright<\/em>, the regula\u00adtion interpreted a statutory re\u00adquire\u00adment that a fam\u00adily \u201c\u2018shall pay as rent\u2019 a specified percentage of its income\u201d to encompass pay\u00adment not just for \u201cthe use of the dwelling accommodation\u201d but also for \u201creasonable amounts of utilities.\u201d[53] It did not veer from the un\u00adder\u00adlying statutory guarantee that a certain amount will be paid for rent. It did not im\u00adpose a strict rule where the statute was vague. It simply interpreted the mean\u00ading of the am\u00adbig\u00adu\u00adous term \u201crent.\u201d In D.D.<\/em>, the Second Circuit enforced a flex\u00adible interpretation (\u201cas soon as possible\u201d) of a vague stand\u00adard (\u201cspe\u00adcial education .\u00a0.\u00a0. services [shall be] provided in con\u00adformity with the [IEP]\u201d).[54] This, too, is permitted under Hoctor<\/em>. The \u201cas soon as possible\u201d stan\u00add\u00adard im\u00adposes no new absolute require\u00ad\u00ad\u00adments. It infers from the statu\u00adto\u00adry guar\u00ad\u00adantee of services that those services will come quick\u00ad\u00adly. It leaves the issue wheth\u00ader a giv\u00aden IEP has been im\u00adple\u00adment\u00aded soon enough to triers of fact in indi\u00advid\u00ad\u00adual law\u00adsuits. It does not make a legislative deter\u00admination that after, say, two weeks, a school has failed to pro\u00advide \u201cspe\u00adcial educa\u00adtion .\u00a0.\u00a0. ser\u00ad\u00advices in con\u00adform\u00adity with the [IEP].\u201d[55] In sum, the reg\u00adu\u00adla\u00adtions at issue in Wright<\/em> and D.D.<\/em> avoid imposing new requirements. The regula\u00adtion in Wright<\/em> in\u00adter\u00ad\u00adprets a specific (but am\u00adbiguous) statutory guar\u00adan\u00adtee by imposing a specific regu\u00adla\u00adtory guar\u00adan\u00adtee. The regulation in D.D.<\/em> inter\u00adprets an open-ended statutory guarantee with an open-ended regula\u00adtion.<\/p>\n

Unlike the regulations in Wright <\/em>and D.D.<\/em>, the regulation in Harris <\/em>falls on the legislative side of the legislative\/interpretive divide under the reasoning in Hoctor<\/em>. In Harris<\/em>, the plaintiffs pointed to several statutory provisions that made broad, stand\u00adard-based guarantees \u2014 for exam\u00adple, that state agencies would provide services \u201cpromptly.\u201d[56] They argued that a regu\u00adla\u00adtion describing a right to transportation to medical service pro\u00advid\u00ad\u00ad\u00aders interpret\u00aded<\/em> these sta\u00adt\u00ad\u00adu\u00adto\u00adry pro\u00advisions.[57] The Eleventh Circuit disagreed, finding the nexus between the statutory and regu\u00adlatory guarantees to be \u201ctoo tenuous.\u201d[58] The Harris <\/em>court <\/em>respected the legislative\/interpretive di\u00advide under the Hoctor<\/em> approach because it held that a regulation that imposed a strict rule was not sufficiently related to statutory provisions that imposed no such requirements.<\/p>\n

Although none of these cases cites Hoctor<\/em>, they all comply with the Seventh Circuit\u2019s dis\u00ad\u00adtinction between rule interpretation and rule creation, which, admittedly, Hoctor<\/em> draws in the context of administrative law. None calls it \u201cinter\u00adpre\u00adta\u00adtion\u201d when a regulation imposes a rigid rule although the underlying statute imposes none itself.<\/em><\/p>\n

The legislative\/interpretive distinction described in Hoctor<\/em> is readily applicable to the facts of Shakhnes<\/em>. The underlying statute guarantees \u201can opportunity for a fair hear\u00ading.\u201d[59] This statute im\u00adposes no strict require\u00adments as to the timing of post-hearing agency action. Thus, under Hoctor<\/em>, an enforceable timing-oriented regulation that is a valid interpretation of this statute would itself have to re\u00adfrain from imposing any strict timing require\u00adment. Such a regulation could provide a qual\u00adified<\/em> deadline for ad\u00admin\u00ad\u00adi\u00adstra\u00adtive ac\u00adtion: \u201cin gen\u00ad\u00aderal<\/em>, within 90 days,\u201d or \u201cexcept un\u00adder exten\u00ad\u00ad\u00adu\u00ad\u00adat\u00ading<\/em> circumstances<\/em>, within 90 days.\u201d[60] Al\u00adter\u00adna\u00adtively, it could interpret the \u201copportunity for a fair hearing\u201d to imply a gener\u00adal right to sub\u00adsequent agency action \u201cwithin a reason\u00adable time.\u201d[61] But the actual regulation\u2019s inflexible timing re\u00adquire\u00ad\u00adment \u2014 \u201cwithin 90 days\u201d[62] \u2014 fails the Hoc\u00adtor <\/em>test: it imposes a strict rule where none existed before. Accordingly, had it followed the dis\u00adtinc\u00adtion just described, the Shakh\u00adnes <\/em>court would have held that the regulation at issue imposes an inde\u00adpendent duty where the statute is silent and is thus not enforce\u00adable under 42 U.S.C. \u00a7 1983.<\/p>\n

Unfortunately, the Shakhnes<\/em> court noted no such distinction between rule inter\u00adpre\u00adta\u00adtion and rule creation. Instead, the Second Circuit rest\u00aded its decision primarily on unhelpful lan\u00ad\u00ad\u00adguage from prior decisions.[63] It ulti\u00admate\u00ad\u00adly held that \u201cthe 90-day require\u00adment in the regulation here at issue merely defines the time frame with respect to Plain\u00adtiffs\u2019 right to an op\u00adpor\u00adtunity for Medi\u00adcaid fair hear\u00adings.\u201d[64] But the opinion did not distin\u00adguish mean\u00ading\u00adfully be\u00adtween reg\u00adu\u00adlations that \u201cmere\u00adly define\u201d the content of a stat\u00adu\u00adto\u00adry right and those that impose addi\u00adtional ob\u00ad\u00ad\u00adligations.<\/p>\n

Of course, this decision appears to be a particular boon for civil rights plaintiffs, whether suing individually or in class actions. Shakhnes<\/em> affirms that no plaintiff need prove that a particular delay deprived her of a right when suing under this regulation; it is hereafter settled that after 90 days, a violation of a right has oc\u00adcurred. Even defendants will benefit from the Second Circuit\u2019s settling of the issue by confirming that a bright-line rule determines the scope of the right: the decision forecloses thorny disputes about whether an agency was \u201creasonabl[y] prompt[]\u201d in a given case and the resulting possibility that experts and discovery will be needed to answer the question. This should reduce litigation expenses for all parties in such cases.<\/p>\n

But while the Hoctor<\/em> rule draws a clean line forbidding imposi\u00adtion of strict rules where none existed prior, the decision provides little guid\u00adance for future courts inquiring whether a reg\u00adulation is a valid interpretation of a statute. The reasoning leaves judges unconstrained when deciding whether a given regula\u00adtion does or does not \u201cinterpret\u201d the content of an underlying statutory right in future cases. This is a blow to the rule of law.<\/p>\n

The decision also imposes other costs. While it may increase efficiency in a small set of cases, it also invites regulators to tangle with the cre\u00ad\u00ada\u00adtion, modi\u00adfication, or elim\u00adi\u00adnation of rights inde\u00adpend\u00adently of congressional control. This is a bargain of dubious worth. Under this scheme, agen\u00adcies may change the scope of individual rights markedly from admini\u00adstration to ad\u00admin\u00adistration, and Congress may be tempted to relin\u00adquish more control of policymaking in the future.<\/p>\n

The Shakhnes<\/em> court would have been better off leaving the plain\u00adtiffs free to vindi\u00adcate their stat\u00adu\u00adtory<\/em> rights and holding, following the rea\u00adson\u00ading in Hoctor<\/em>, <\/em>that the regula\u00adtion\u2019s 90-day deadline imposed an independent obliga\u00adtion and was thus unen\u00adforce\u00adable under 42 U.S.C. \u00a7 1983.<\/p>\n

\n

 <\/p>\n

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[1] 536 U.S. 273 (2002).<\/p>\n<\/div>\n

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[2] 42 U.S.C. \u00a7 1983 (2012).<\/p>\n<\/div>\n

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[3] Save Our Valley v. Sound Transit, 335 F.3d 932, 939 (9th Cir. 2003) (emphasis added). See also <\/em>Johnson v. City of Detroit, 446 F.3d 614, 629 (6th Cir. 2006).<\/em><\/p>\n<\/div>\n

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[4] See, e.g.<\/em>, <\/em>D.D. v. N.Y.C. Bd. of Educ., 465 F.3d 503, 513 (2d Cir. 2006).<\/p>\n<\/div>\n

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[5] 689 F.3d 244 (2d Cir. 2012).<\/p>\n<\/div>\n

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[6] Id<\/em>. at 253 (quoting Harris v. James, 127 F.3d 993, 1011 (11th Cir. 1997)) (internal quotation marks omitted).<\/em><\/p>\n<\/div>\n

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[7] Id<\/em>. at 254.<\/p>\n<\/div>\n

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[8] See <\/em>Hoctor v. Dep\u2019t of Agric., 82 F.3d 165 (7th Cir. 1996).<\/p>\n<\/div>\n

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[9] 42 U.S.C. \u00a7\u00a7 1396\u20131396w-5 (2012).<\/p>\n<\/div>\n

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[10] 42 U.S.C. \u00a7 1396a(a)(3) (2012).<\/p>\n<\/div>\n

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[11] 42 C.F.R. 431.244 (f)(1) (2002).<\/p>\n<\/div>\n

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[12] See<\/em> Shakhnes<\/em>, 689 F.3d at 247.<\/p>\n<\/div>\n

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[13] Id<\/em>. at 249.<\/p>\n<\/div>\n

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[14] Id<\/em>.<\/em><\/p>\n<\/div>\n

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[15] Id<\/em>.<\/p>\n<\/div>\n

\n

[16] Id<\/em>. at 251. The admittedly imprecise term \u201cvalid interpretation\u201d here is drawn from Shakhnes<\/em> (which itself derives the language from Harris<\/em>). See<\/em> supra<\/em> note 6. A \u201cvalid\u201d interpretation of a right is one that supposedly goes no fur\u00adther than the underlying right and is consequently enforceable under 42 U.S.C. \u00a7 1983; an \u201cinvalid\u201d interpre\u00adta\u00adtion is one that imposes distinct rights or obligations (and is thus unenforceable). This useful shorthand is present through\u00adout this Comment, as is an analog in the notice-and-comment context. See infra <\/em>text accompanying notes 40\u201351.<\/p>\n<\/div>\n

\n

[17] Id<\/em>. at 263.<\/p>\n<\/div>\n

\n

[18] See<\/em> id<\/em>. at 251\u201355.<\/p>\n<\/div>\n

\n

[19] Id<\/em>. at 251.<\/p>\n<\/div>\n

\n

[20] 479 U.S. 418 (1987). See Shakhnes<\/em>, 689 F.3d <\/em>at 251\u201352.<\/p>\n<\/div>\n

\n

[21] 689 F.3d <\/em>at 251\u201352 <\/em>(citing 479 U.S. at 419\u201320).<\/p>\n<\/div>\n

\n

[22] See id<\/em>. at 252 (quoting 479 U.S. at 430) (internal quotation marks omitted).<\/p>\n<\/div>\n

\n

[23] See id<\/em>. (citing 479 U.S. at 431 n. 11).<\/p>\n<\/div>\n

\n

[24] D.D. v. N.Y.C. Bd. of Educ., 465 F.3d 503 (2d Cir. 2006).<\/p>\n<\/div>\n

\n

[25] See <\/em>689 F.3d at 252\u201353.<\/p>\n<\/div>\n

\n

[26] Id<\/em>. at 252 (quoting 465 F.3d at 512) (internal quotation marks omitted).<\/p>\n<\/div>\n

\n

[27] Id<\/em>. (emphasis in original) (quoting 465 F.3d at 512\u201313) (internal quotation marks omitted).<\/p>\n<\/div>\n

\n

[28] Id<\/em>. at 253 (quoting 465 F.3d at 513) (in\u00adternal quotation marks omitted).<\/p>\n<\/div>\n

\n

[29] See id<\/em>. at 253\u201354.<\/p>\n<\/div>\n

\n

[30] 127 F.3d 993 (11th Cir. 1997).<\/p>\n<\/div>\n

\n

[31] See Shakhnes<\/em>, 689 F.3d at 253 (citing 127 F.3d at 996).<\/p>\n<\/div>\n

\n

[32] 42 C.F.R. \u00a7 431.53 (1991) (requiring that a state\u2019s \u201cMedicaid agency .\u00a0.\u00a0. ensure necessary transportation for recipients to and from providers\u201d).<\/p>\n<\/div>\n

\n

[33] See <\/em>689 F.3d at 253.<\/p>\n<\/div>\n

\n

[34] Id<\/em>. (quoting 127 F.3d at 1005).<\/p>\n<\/div>\n

\n

[35] 127 F.3d at 1009 (internal quotation marks omitted).<\/p>\n<\/div>\n

\n

[36] Shakhnes<\/em>, 689 F.3d at 252 (emphasis added) (quoting S. Cam\u00adden Citizens in Action v N.J. Dep\u2019t of Envtl. Prot., 274 F.3d 771, 783 (3d Cir. 2001)) (internal quotation marks omitted).<\/p>\n<\/div>\n

\n

[37] See<\/em> id<\/em>. at 253, 254 (quoting D.D. v. N.Y.C. Bd. of Educ., 465 F.3d 503, 513 (2d Cir. 2006)) (internal quotation marks omitted).<\/p>\n<\/div>\n

\n

[38] Id<\/em>. at 255 (emphasis and first alteration in original) (quot\u00ading Harris<\/em>, 127 F.3d at 1012).<\/p>\n<\/div>\n

\n

[39] Id<\/em>. at 253 (quoting Harris<\/em>, 127 F.3d at 1009).<\/p>\n<\/div>\n

\n

[40] 82 F.3d 165 (7th Cir. 1996). Of course, other cases have treated this distinction in the same (rulemaking) context. See, e.g.<\/em>, Chamber of Commerce v. Dep\u2019t of Labor, 174 F.3d 206 (D.C. Cir. 1999).<\/p>\n<\/div>\n

\n

[41] See <\/em>82 F.3d at 167; see also <\/em>5 U.S.C. \u00a7 553(b)(A) (2012).<\/p>\n<\/div>\n

\n

[42] 9 C.F.R. \u00a7 3.125(a) (1995).<\/p>\n<\/div>\n

\n

[43] 82 F.3d at 168 (internal quotation marks omitted).<\/p>\n<\/div>\n

\n

[44] See id<\/em>. at 169.<\/p>\n<\/div>\n

\n

[45] Id<\/em>.<\/p>\n<\/div>\n

\n

[46] Id<\/em>.<\/p>\n<\/div>\n

\n

[47] See id<\/em>. at 172.<\/p>\n<\/div>\n

\n

[48] Id<\/em>. at 169\u201370 (arguing that \u201c[a] rule that turns on a number is likely to be arbi\u00adtrary in th[e] sense\u201d that it is merely a \u201cchoice among methods of implementa\u00adtion\u201d).<\/p>\n<\/div>\n

\n

[49] The general rule is subject to rebuttal by evidence that a particular rule is \u201cuniquely appropriate\u201d to meet the un\u00adder\u00adlying standard. Id<\/em>. If, for example, evidence showed that lions, tigers, and leopards can typically escape from fences seven feet, eleven inches high because of their jumping abilities, but not from fences one inch taller, the reg\u00adu\u00adlation would be on much stronger ground as an \u201cinterpretation.\u201d See id<\/em>.<\/p>\n<\/div>\n

\n

[50] Id<\/em>.<\/p>\n<\/div>\n

\n

[51] Id<\/em>. at 171 (emphases added).<\/p>\n<\/div>\n

\n

[52] Brief of Appel\u00adlant at 29\u201330, Shakh\u00adnes v. Berlin, 689 F.3d 244 (2d Cir. 2012) (No. 11-2003), 2011 WL 3882067, at *29\u201330.<\/p>\n<\/div>\n

\n

[53] Wright v. City of Roanoke Redev. & Hous. Auth., 479 U.S. 418, 420 & n.3 (1987) (citation omitted).<\/p>\n<\/div>\n

\n

[54] D.D. v. N.Y.C. Bd. of Educ., 465 F.3d 503, 512\u201313 (2d Cir. 2006).<\/p>\n<\/div>\n

\n

[55] Id<\/em>. at 512.<\/p>\n<\/div>\n

\n

[56] See <\/em>Harris v. James, 127 F.3d 993, 1018 (11th Cir. 1997) (citing 42 U.S.C. \u00a7 1396a(a)(8)).<\/p>\n<\/div>\n

\n

[57] See id<\/em>. at 996.<\/p>\n<\/div>\n

\n

[58] Id<\/em>. at 1010.<\/p>\n<\/div>\n

\n

[59] 42 U.S.C. \u00a7\u00a01396(a)(3) (2012).<\/p>\n<\/div>\n

\n

[60] Cf<\/em>. Hoctor<\/em>, 82 F.3d at 171.<\/p>\n<\/div>\n

\n

[61] Cf<\/em>. D.D.<\/em>, 689 F.3d 252.<\/p>\n<\/div>\n

\n

[62] 42 C.F.R. 431.244 (f)(1)(ii) (2002).<\/p>\n<\/div>\n

\n

[63] See<\/em> supra<\/em> text accompanying notes 36\u201339.<\/p>\n<\/div>\n

\n

[64] 689 F.3d 244, 255.<\/p>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

In the wake of Gonzaga Univ. v. Doe, in which the Supreme Court entrenched a tight-fisted test for whether Congress has guaranteed a statutory right to individuals, the lower courts have felt out the bounds of a new doctrine piecemeal. Recently, in Shakhnes v. Berlin, the Second Circuit held that at least in some cases where Congress confers a right with bounds set by flexible standards \u2013 as opposed to hard and fast rules \u2013 and a regulation subsequently \u201cdefines or fleshes out that right\u201d by imposing a rigid rule, the statute provides the \u201csource\u201d of a right but the regulation ultimately defines the limits of what is enforceable under \u00a7 1983. 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