Richmond Virginia School Board v Virginia Board of Education Supplemental Brief in Support of Petitions for Writs of Certiorari

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QUESTION PRESENTED

Whether a health care provider may bring an action under 
42 U.S.C. 1983 to challenge a State’s Medicaid plan on the 
ground that it fails to provide “reasonable and adequate” 
reimbursement, in purported violation of 42 U.S.C. 
1396a(a)(13)(A) (1982 & Supp. Ill 1985).

(I)



TABLE OF CONTENTS

Page
Interest of the United S tates......................................  1
Statement ....................................................................  3
Summary of argument................................................ 9
Argument:

The court of appeals erred in holding that respon­
dent may sue the Commonwealth of Virginia under 
Section 1983 for an alleged violation of 42 U.S.C. 
1396a(a)(13)(A) ...................................................  11
A. There is no Section 1983 cause of action to en­

force a federal statute unless Congress intended
the statute to create enforceable rights.......  11

B. Section 1396a(a)(13)(A) was not designed to
create enforceable rights for purposes of 42 
U.S.C. 1983 .................................................. 16

Conclusion ..................................................................  24

TABLE OF AUTHORITIES
Cases:

Alexander v. Polk, 750 F.2d 250 (3d Cir. 1984) . 14
Atkins v. Rivera, All U.S. 154 (1986) ............... 3
California v. Sierra Club, 451 U.S. 287 (1981) .. 13
Cannon v, University o f Chicago, 441 U.S. 677

(1979) ............................................................... 14, 16
Edwards v. District of Columbia, 821 F.2d 651 (D.C.

Cir. 1987)..............................................  14, 15, 16, 17
Harris v. McRae, 448 U.S. 297 (1980).............. 1,3
Maine v. Thiboutot, 448 U.S. 1 (1980) ............. 11
Middlesex County Sewerage Auth. v. Natl Sea

Clammers Ass'n, 453 U.S. 1 (1981)................  11, 16
Pennhurst Stare School & Hosp. v. Halderman, 451

U.S. 1 (1981)...................................7, 10, 11, 12, 16
Polchowsklv. Corris, 714 F.2d 749 (7th Cr. 1983) . 14, 17 
Schweikerv, Gray Panthers, 453 U.S. 34 (1981) . 3

(III)



IV

Cases-Continued: Page
State o f Oregon, Department o f Human Resources 

v. Coos Bay Care Center, vacated as moot, 108
S. Ct. 52 (1987)................................................ II

Wisconsin Hospital Ass'n v. Reivitz, 733 F.2d 1226
(7th Cir. 1984).................................................. 19

Wright v. City o f Roanoke Redevelopment and
Housing Auth., 479 U.S. 418 (1987).........  9, 10, 11,

12, 13, 14, 17

Statutes, rules and regulations:
Act of Oct. 18, 1976, Pub. L. No. 94-522, 90 Stat.

2540 .................................................................. 23
Brooke Amendment to the Housing Act of 1937,

Pub. L. No. 91-152, § 213, 83 Stat. 389 .......  13
Developmental^ Disabled Assistance and Bill of

Rights Act, 42 U.S.C. 6000 et seq...................... 11-12
42 U.S.C. 6010 ............................................  12
42 U.S.C. 6011 ............................................  12
42 U.S.C. 6063(b)(5)(C)...............................  12

Medicaid Act, 42 U.S.C. 1396 et seq.:
42 U.S.C. 1396a (1982 & Supp. Ill 1985) .. 1, 3, 7 
42 U.S.C. 1396a(a) (1982 & Supp. Ill

1985) ............................................ 3. 5, 8, 17, 18
42 U.S.C. 1396a(a)(13)(A) (1982 & Supp. Ill

1985) ...............................  2, 3, 4, 5, 7, 8, 9, 10,
16, 17, 18, 19, 20, 21, 22, 23, 24 

42 U.S.C, 1396a(a)(13)(E) (Supp. II 1972) .. 19
42 U.S.C. 1396a(b)......................................  5
42 U.S.C. 1396a(g) (Supp. V 1975)............. 23
42 U.S.C. I396b(a)(7) ................................. 2
42 U.S.C. 1396d(b) (1982 & Supp. Ill 1985) . 2

Omnibus Budget Reconciliation Act of 1981, Pub.
L. No. 97-35, § 2173(a), 95 Stat. 808 ............. 19

Omnibus Reconciliation Act of 1980, Pub. L. No 
96-499, § 962(a), 94 Stat. 2650-2651 19



Statutes, rules and regulations-Continued: Page
Social Security Amendments of 1972, Pub. L. No.

92-603, § 249(a), 86 Stat. 1426 ........................  19
42 U.S.C. 1983 .................................  1, 6, 7, 8, 10,

11, 16, 22, 23
Va. Code (repl. 1989):

§ 9-6.14:1 et seq..............   6
§9-6.14:17 ...................................................  6
§ 32.1-325.1 (Supp. 1989) ............................ 6

42 C.F.R.:
Section 447.205 ............................................  5
Section 447.252(a)........................................
Section 447.253 ............................................  17
Section 447.253(b)(2) ...................................  4
Section 447.253(c) ........................................  2, 4
Section 447.253(0 ......................................... 5
Section 447.255 ............................................  5
Section 447.256(b) .................................   5

Miscellaneous:
Brown, Penrthurst As A Source Of Defenses For 

State And Local Governments, 31 Cath. U.L. Rev.
449 (1982) .........................................................  12

126 Cong. Rec. (1980):
p. 17886 .......................................................  20
pp. 17885-17886 ..........................................  20

48 Fed. Reg. (1983):
p. 56,046 .......................................................  4, 5
p. 56,048 .......................................................  4
p. 56,049 .......................................................  4, 21
p. 56,050 .......................................................  5, 21
p. 56,051 .......................................................  21
pp. 56,050-56,051 ........................................  5

Health Care Financing Admin., Dep’t of Health and 
Human Services, Medicaid Financial Management 
Report: Fiscal Year 1988.................................  2



VI

Miscellaneous —Continued: Page
H.R. Conf. Rep. No. 1479, 96th Cong., 2d Sess.

(1980) ..............................................................  21
H.R. Rep. No.1122, 94th Cong., 2d Sess. (1976) .. 23
Sunstein, Section 1983 and the Private Enforcement 

o f Federal Law, 49 U. Chi. L. Rev. 394 (1982) .. 15
S. Rep. No. 1240, 94th Cong., 2d Sess. (1976) .. 23
S. Rep. No. 471, 96th Cong., 1st Sess. (1979) .. 19, 20,

21



3 n  ttje Supreme Court of tfjc Umteb g>tate$
O ctober  T e r m , 1989.

No. 88-2043

G e r a ld  L . B a lil es , et  a l ., pe t itio n e r s  

v.

T he V ir g in ia  H o spita l  A sso c ia tio n

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

Medicaid is a cooperative federal-state program “pro­
viding federal financial assistance to States that choose to 
reimburse certain costs of medical treatment for needy per­
sons” (Harris v. McRae, 448 U.S. 297, 301 (1980)). In 
developing plans for administering the Medicaid program, 
States are given considerable discretion in determining who 
will receive Medicaid assistance and what kinds of assistance 
will be provided. State Medicaid plans, however, must com­
ply with requirements imposed by the Act and by the 
Secretary of Health and Human Services. 42 U.S.C. 1396a 
(1982 & Supp. Ill 1983).

In this case, the court of appeals held that an association 
of health care providers may bring an action under 42 
U.S.C. 1983 to challenge a State’s alleged failure to pro-

( 1)



2

vide sufficient Medicaid reimbursement, in purported viola­
tion of 42 U.S.C. 1396a(a)(13)(A) (1982 & Supp. Ill 1985). 
The United States has a significant financial stake in the 
disposition of that issue. By law, the federal government 
provides between 50% and 83% of the cost of patient care, 
as determined by a formula keyed to per capita income of 
the State. See 42 U.S.C. 1396d(b) (1982 & Supp. Ill 1985). 
In fiscal year 1988 alone, the federal contribution to the 
Medicaid program for medical assistance totalled approx­
imately $29 billion, making Medicaid one of the largest items 
in the federal budget.' Beyond this, the federal government 
makes at least a 50% contribution to the States’ adminis­
trative expenses under the Medicaid program-including the 
cost of defending actions, like this one, for purported viola­
tions of the Social Security Act. See 42 U.S.C. 1396b(a)(7). 
In fiscal year 1988, the United States covered approximately 
$1.51 billion of state administrative costs.3

The United States also has a substantial interest in the 
particular legal question presented here. Regulations pro­
mulgated by the Secretary to implement the Medicaid statute 
require States to establish procedures that afford providers 
an opportunity to challenge reimbursement decisions. See 
42 C.F.R. 447.253(c). Under the court of appeals’ decision, 
however, state administrative procedures may be bypassed 
entirely, in favor of a federal court action under Section 
1983. That result, if upheld, would have a significant im­
pact on the Medicaid program. It would enable thousands 
of routine cases like this-involving a claim that a State

1 Health Care Financing Admir.., Dep’t of Health and Human Serv­
ices, Medicaid Financial Management Report: Fiscal Year 1988 
[hereinafter Medicaid Financial Management Report], Of this sum, 
HHS provided $399.3 million to the State of Virginia.

1 Medicaid Financial Management Report. Of this amount, some S25 
million was provided to Virginia.



3

has failed to make adequate reimbursement to particular 
health care providers-to be brought in federal court. Such 
an explosion of litigation would vastly increase the cost of 
the Medicaid program, to the detriment of both state and 
federal governments, and to the ultimate detriment of 
Medicaid recipients.

STATEMENT

1. Congress established the Medicaid program in 1965 
“for the purpose of providing federal financial assistance 
to States that choose to reimburse certain costs of medical 
treatment for needy persons.” Harris v. McRae, 448 U.S. 
297, 301 (1980); see Atkins v. Rivera, 477 U.S. 154, 156 
(1986); Schweikerv. Gray Panthers, 453 U.S. 34, 36 (1981). 
As a cooperative federal-state program, Medicaid leaves the 
decision whether to participate to the sole discretion of each 
State. Once that initial decision has been made, States elect­
ing to participate must comply with basic requirements im­
posed by the Act and by the Secretary of Health and Human 
Services (see 42 U.S.C. 1396a (1982 St Supp. Ill 1985); 
Rivera, 477 U.S. at 157; Gray Panthers, 453 U.S. at 37). 
Within those basic limits, however, each State enjoys great 
flexibility both in administering its program and in deciding 
what specific provisions its program will contain.

To qualify for federal assistance, participating States must 
submit to the Secretary, and have approved, “a plan for 
medical assistance” (42 U.S.C. 1396a(a) (1982 & Supp. Ill 
1985)). Among other things, such a plan must provide (42 
U.S.C. 1396a(a)(13)(A) (1982 & Supp. Ill 1985)):

for payment * * * of the hospital, skilled nursing facili­
ty, and intermediate care facility services provided 
under the plan through the use of rates (determined 
in accordance with methods and standards developed 
by the State * * *) which the State finds, and makes



4

assurances satisfactory to the Secretary, are reasonable 
and adequate to meet the costs which must be incur­
red by efficiently and economically operated facilities 
in order to provide care and services in conformity with 
applicable State and Federal laws, regulations, and 
quality and safety standards and to assure that in­
dividuals eligible for medical assistance have reasonable 
access * * * to inpatient hospital services of adequate 
quality * * *.

The Secretary’s regulations under this provision require 
the States to establish an administrative appeals procedure 
for providers to challenge Medicaid reimbursement deci­
sions. In particular, the regulations mandate that States have 
an “appeals or exception procedure that allows individual 
providers an opportunity to submit additional evidence and 
receive prompt administrative review, with respect to such 
issues as the [state] agency determines appropriate, of pay­
ment rates.” 42 C.F.R. 447.253(c).

In implementing Section 1396a(a)(13)(A), the Secretary 
has not provided a national definition or specific criteria 
for “reasonable and adequate” payment rates or for “effi­
ciently and economically operated facilities.” See 48 Fed. 
Reg. 56,046, 56,049 (1983). The Secretary has, instead, 
sought to preserve maximum flexibility for the States to re­
spond to the particular and varied circumstances they face 
(id. at 56,048). Accordingly, the Secretary does not set 
“reasonable and adequate” rates; rather, as provided in the 
statute, participating States are required to submit 
assurances to the Secretary that they have made findings 
that their payment rates meet all statutory requirements. 
42 C.F.R. 447.253(b)(2).3 The States are not required to

1 The regulations also require that before a State may seek the 
Secretary's approval of any significant changes in its methods and stand­
ards for setting payment rates, it must publish such changes for public



5

submit to the Secretary the findings themselves or the 
underlying data and analyses (see 48 Fed Reg. 56,046, 56,050 
(1983)); instead, the Secretary examines the States’ 
assurances to determine whether they are “satisfactory” 
within the meaning of Section 1396a(a)(13)(A). Id. at 
56,050-56,051. The statute further provides that the States’ 
assurances will be considered satisfactory, in the absence 
of a formal finding by the Secretary to the contrary. See 
42 U.S.C. 1396a(b); 42 C.F.R. 447.256(b).4

2. a. The Commonwealth of Virginia has elected to par­
ticipate in the Medicaid program. Accordingly, Virginia has 
submitted to the Secretary, and had approved, a plan for 
medical assistance pursuant to 42 U.S.C. 1396a(a) (1982 & 
Supp. Ill 1985). The plan categorizes hospitals into “peer 
groups,” based on their size and location (urban or rural) 
(J.A. 25). For each group of hospitals, the Commonwealth 
in 1982 developed, on the basis of available cost data, a 
median cost of care per Medicaid patient day (ibid.). 
Hospitals were originally reimbursed at the median rate for 
their “peer group” or at their actual cost (plus a percentage 
of the difference between their actual cost and the median, 
as an incentive to stay below the median), whichever was

comment, thus affording providers and other persons an opportunity 
to influence the rate-setting process. 42 C.F.R. 447.205, 447.253(f). In 
addition, in order to obtain the Secretary’s approval of any change in 
payment rates, the State must submit an estimate of the average pro­
posed rates for each type of provider, the difference between the pro­
posed rates and the existing rates, and an estimate of the short-term 
and long-term effects of the proposed rates on the availability of serv­
ices, the type of care furnished, the extent of provider participation, 
and the degree to which the proposed rates will cover provider costs 
in hospitals serving a disproportionate number of low Income patients 
with special needs. 42 C.F.R. 447.255.

4 The Secretary may request a State to provide additional background 
information if he believes it is necessary for a complete review of the 
State’s assurances. 48 Fed. Reg. 56,046, 56,050 (1983).



6

lower (J.A. 25-26). Subsequently, the median rate became 
the payment ceiling for each group. Between 1982 and 1986, 
the ceilings were adjusted for inflation, using a modified 
national consumer price index (J.A. 12-13). Since 1986, the 
ceilings have been adjusted using an inflation index 
specifically based on medical care costs (J.A. 26).

Pursuant to federal requirements, the Virginia plan also 
creates an administrative appeals procedure for providers 
who wish to challenge Medicaid reimbursement decisions 
(J.A. 32-45). The procedure calls for an initial decision by 
Virginia’s Department of Medical Assistance Services, in­
formal review by a Department appeals officer, and a for­
mal administrative hearing before a state hearing officer, 
who submits proposed findings of fact and conclusions of 
law to the Director of the Department of Medical Assistance 
Services (ibid.). Pursuant to the state Medicaid statute (Va. 
Code § 32.1-325.1 (Supp. 1989)), the Director’s decision is 
thereafter reviewable in state court under provisions of the 
Virginia Administrative Process Act (id. § 9-6.14:1 et seq. 
(repl. 1989)). The Commonwealth's Medicaid appeals pro­
cedure precludes administrative review of the principles of 
Medicaid reimbursement under the state plan (J.A. 33), but 
there is no such specific limitation on the scope of judicial 
review in the state courts (see Va. Code § 9-6.14:17 (repl. 
1989)).

b. Respondent is the Virginia Hospital Association, a 
trade association representing public and private hospitals 
In Virginia (J.A. 4-5). Respondent brought this action under 
42 U.S.C. 1983 to challenge Virginia’s reimbursement rates 
under the state Medicaid plan. Respondent alleged that the 
plan systematically undercompensates providers for the costs 
of caring for Medicaid patients.5 In addition, respondent

* In particular, respondent alleged that (1) the use of a general con­
sumer price index to adjust reimbursement rates until 1986 resulted in 
an underestimation of the actual rate of inflation in medical care costs



7

alleged that the appeals procedure in the state plan provides 
an inadequate method for challenging defects in the 
Medicaid payment system because it excludes challenges to 
the principles of reimbursement and permits only case-by­
case appeals involving the application of those rates to par­
ticular providers (J.A. 18-20). Respondent contended that 
the Virginia Medicaid plan violates 42 U.S.C. 1396a, as well 
as the providers' due process rights under the Fourteenth 
Amendment (Pet. App. A4). Respondent sought declaratory 
and injunctive relief, including an order requiring petitioners 
to promulgate a new state plan and, in the interim, to reim­
burse Medicaid providers “at a level commensurate with pay­
ment under Title XVIII of the Social Security Act, as 
amended, commonly known as the Medicare Act” (ibid.;
J.A . 21-22).

3. After initially dismissing the complaint on collateral 
estoppel grounds (see Pet. App. A4), the district court, on 
remand from the court of appeals, denied petitioners’ mo­
tion for summary judgment. The court held that Section 
1396a(a)(13)(A) creates enforceable rights under 42 U.S.C. 
1983, distinguishing this Court’s decision in Pennhurst State 
School<& Hosp. v. Halderman, 451 U.S. 1 (1981). Pet. App. 
D5.4 The district court certified its decision for interlocutory 
review (id. at Dl).

during that period; (2) even after the State adopted an inflation index 
based on medical care costs, it failed to apply the index properly; (3) 
adjustment of reimbursement rates solely by application of an infla­
tion index, even one based specifically on medical care costs, failed to 
take into account other cost factors not related to inflation; and (4) 
the method of computing “peer group” medians failed to reflect the 
true Impact of inflation on the cost of care, because variations in dif­
ferent hospitals’ fiscal years resulted in the application o f the inflation 
index to outdated cost data for many hospitals (J.A. 14-16).

4 The district court also held that the Eleventh Amendment does not 
bar relief in this case; that respondent has standing to bring the action;



8

4. The court of appeals affirmed (Pet. App. A1-A18), 
agreeing with the district court that Section 1396a(a)(13)(A) 
creates enforceable rights under 42 U.S.C. 1983. The court 
concluded that the language and legislative history of the 
Medicaid Act “reveal[ ] an unambiguous intent to assure 
reimbursement rates that are reasonable and adequate in 
fact” (Id. at A7). The court explained that the various re­
quirements for state Medicaid plans are “subject to the im­
perative of their predicate § 1396a(a), which indicates that 
the provisions specify what a State plan ‘must’ contain” 
(ibid.). That language, the court surmised, "reveals a con­
gressional intent to condition federal assistance on states’ 
achievement of the express purpose of the section, and not 
simply on states’ assurances of compliance” (id. at A7-A8).7

The court of appeals held that the legislative history of 
the Medicaid Act confirms the availability of Section 1983 
relief. Pet. App. A8-A10. The court explained (id. at A8) 
that certain Conference Committee remarks “make plain 
that the latitude § l396a(a)(13)(A) grants States is not 
willfully to assign reimbursement rates, but flexibly to deter­
mine what methods and factors will produce rates adequate

that the remedial scheme adopted by the Medicaid Act does not 
foreclose a Section 1983 remedy; that the statute of limitations does 
not bar the action; that the action is ripe for adjudication and is not 
barred by precedent; and that abstention by the court is unwarranted. 
Pet. App. D3-D8.

7 The court acknowledged that the Secretary’s regulations require him 
to review only the State’s assurances that its methods and standards 
for setting payment rates are connstent with federal requirements. It 
also recognized that the regulations do not require federal review of 
the reasonableness of the actual reimbursement rates established under 
the State’s plan. The court concluded, however, that those 
regulations —far from foreclosing a Section 1983 remedy-confirm that 
Section 1396a(a)(13)(A) was not intended to displace "federal judicial 
scrutiny" of the reasonableness of reimbursement rates. Pet. App. A8 
n.4.



9

in fact given the circumstances particular to each State’s 
hospitals." Moreover, the court stated, “[t]he legislative 
history * * * indicates that Congress intended no close 
scrutiny by the Secretary of Virginia’s assurances of com­
pliance with the mandates of § 1396a(a)(13)(A)’’ (id. at A9). 
Although the court acknowledged that “a logical reading" 
of this legislative history might be that Congress intended 
to "insulate[ ] State reimbursement programs from 
challenges by hospitals” (ibid.), it rejected that conclusion. 
Instead, the court inferred, the legislative record demon­
strates that state review and assurances to the Secretary were 
not designed "to be the sole means of assuring that the 
Virginia system provides reasonable access to care of ade­
quate quality” (ibid.).

Finally, the court of appeals held that the enforcement 
mechanism created by the Medicaid Act is not sufficiently 
comprehensive to foreclose recourse to Section 1983. Pet. 
App. A10-A12. The court recognized that, under the Act, 
the Secretary may review and audit the implementation of 
State plans, and that he may withdraw federal funds if 
necessary. The court also noted that various remedies are 
available under Virginia law to aggrieved Medicaid pro­
viders. Relying on this Court’s decision in Wright v. City 
o f Roanoke Redevelopment & Housing Auth., 479 U.S. 418 
(1987), however, the court held that those remedies were 
insufficient to foreclose Section 1983 relief.®

SUMMARY OF ARGUMENT

The court of appeals has held that Medicaid providers 
may bring a Section 1983 action in federal court to challenge

• The court of appeals also held that stare decisis and Eleventh 
Amendment principles do not foreclose the lawsuit; that respondent 
has standing to sue; that there is no statute of limitations bar; that the 
action is ripe; and that abstention is unwarranted. Pet. App. A12-A18.



10

a State’s purported failure to comply with Section 
1396a(a)(l 3)(A) of the Medicaid Act. In the court's view, 
Section 1396a(a)(13)(A) creates enforceable rights for pur­
poses of Section 1983. Looking to the text and history of 
the Medicaid Act, the court concluded that Section 
1396a(a)(13)(A) “reveals a congressional intent to condition 
federal assistance on states’ achievement of the express pur­
pose of the section, and not simply on states’ assurances 
of compliance.” Pet. App. A7-A8.

The text of the statute does not justify the court’s con­
clusion. Far from creating the “specific and definite” rights 
afforded by the legislation at issue in Wright v. City o f  
Roanoke Redevelopment & Housing A u th ., 479 U.S. 418, 
432 (1987), Section 1396a(a)(13)(A) simply requires States 
to include in their Medicaid plans provider payments “which 
the State finds, and makes assurances satisfactory to the 
Secretary, are reasonable and adequate to meet the costs 
which must be incurred by efficiently and economically 
operated facilities * * As this Court explained in Penn* 
hurst State School <& Hosp. v. Halderman, 451 U.S. 1, 28 
(1981), “[i]t is at least an open question whether an in­
dividual’s interest in having a State provide those ‘assurances* 
is a ‘right secured’ by the laws of the United States within 
the meaning of § 1983.” In any event, the statute by its 
terms does not require that rates be reasonable and ade­
quate, and there accordingly can be no private right of ac­
tion in federal court to secure such rates.

The legislative history of Section 1396a(a)(13)(A) confirms 
that Congress did not intend to create enforceable rights 
under Section 1983. Section 1396a(a)(13)(A) was amended 
in 1980, and again in 1981, expressly to free the States from 
the burdensome oversight of the federal government. It is 
difficult to believe that Congress —having deliberately in­
sulated state administrative processes from superintendence



11

by the federal government-would permit the same close
monitoring under the aegis of Section 1983 litigation.®*

ARGUMENT

THE COURT OF APPEALS ERRED IN HOLDING THAT 
RESPONDENT MAY SUE THE COMMONWEALTH OF 
VIRGINIA UNDER SECTION 1983 FOR AN ALLEGED 
VIOLATION OF 42 U.S.C. 1396«(a)(13)(A)
A. There is no Section 1983 cause of action to enforce a federal 

statute unless Congress Intended the statute to create en­
forceable rights

1. Under 42 U.S.C. 1983, any person who is deprived 
“of any rights, privileges, or immunities secured by the Con­
stitution and laws” by a person acting under color of state 
law may bring a private action to seek redress. In Maine 
v. Thiboutot, 448 U.S. 1 (1980); this Court held that the 
phrase “and laws” in Section 1983 must be read literally, 
to create a private cause of action against state officials for 
violations of rights created by federal statutes. One year 
after its decision in Thiboutot, however, this Court in Penn- 
hurst “recognized two exceptions to the application of 
§ 1983 to statutory violations.” Middlesex County Sewerage 
Auth. v. Nat‘1 Sea Clammers A ss’n, 453 U.S. 1, 19 (1981), 
citing Pennhurst State School & Hosp. v. Halderman, 451 
U.S. 1 (1981), In particular, the Court held that a Section 
1983 action will not lie where (1) Congress has foreclosed 
private enforcement of the federal statute in the statute 
itself, or (2) the statute does not create “enforceable rights” 
under Section 1983. Sea Clammers, 453 U.S. at 19; Penn­
hurst , 451 U.S. at 28; see also Wright v. City o f  Roanoke 
Redevelopment & Housing A u th .t 479 U.S. 418 (1987).

The contours of the “enforceable rights” exception were 
laid out in Pennhurst itself. There, plaintiffs brought an 
action under the Developmentally Disabled Assistance and

* The argument we present below is substantially similar to the argu­
ment we made as amicus curiae in State o f Oregon, Department o f  
Human Resources v. Coos Bay Care Center, No. 86-1419, vacated as 
moot, 108 S. Ct. 52 (1987), We have furnished the parties with copies 
of our brief in that case.



12

Bill of Rights Act, 42 U.S.C. 6000 et seq., to challenge the 
conditions at a state-operated facility for the mentally 
retarded. Plaintiffs relied on several sections of the Act. The 
first of these, Section 6010 (the so-called “bill of rights” pro­
vision), set out a series of “findings respecting the rights 
of persons with developmental disabilities” (42 U.S.C, 6010 
(quoted in 451 U.S. at 13)). The Pennhurst plaintiffs also 
relied on provisions of the statute in question that required 
participating States, as a condition of the receipt of federal 
funds, to make “assurances” to the Secretary that they had 
a habilitation plan in effect for the retarded (Section 6011) 
and that their programs protected their patients’ human 
rights (Section 6063(b)(5)(C)).

Rejecting plaintiffs’ claims, the Court in Pennhurst held, 
first, that Section 6010 “does not create substantive rights" 
and “does no more than express a congressional preference 
for certain kinds of treatment” (451 U.S. at 11,19). Rather 
than imposing “binding obligations on the States,” the Court 
explained, Section 6010 “spoke merely in precatory terms” 
and simply offered “congressional ‘encouragement’ of state 
programs” (451 U.S. at 18, 27). Turning to Sections 6011 
and 6063(b)(5)(C) of the Act, which the courts below had 
not addressed, this Court remanded to the court of appeals 
for further consideration (451 U.S. at 30). But the Court 
noted that under those Sections plaintiffs “can only claim 
that the state plan has not provided adequate ‘assurances’ 
to the Secretary” (id. at 28). “It is at least an open ques­
tion," the Court stated, “whether an individual's interest in 
having a State provide those ‘assurances’ is a Tight secured’ 
by the laws of the United States within the meaning of 
§ 1983" (ibid.).

More recently, the Court applied the “enforceable rights” 
exception in Wright v. City o f Roanoke Redevelopment and 
Housing Auth., 479 U.S. 418 (1987). In that case, tenants 
living in housing projects owned by a city redevelopment 
authority brought suit under Section 1983, alleging that the



13

city had violated a rent ceiling imposed by the Brooke 
Amendment to the Housing Act of 1937, Pub. L. No. 
91-152, § 213, 83 Stat. 389, and implementing HUD regula­
tions. The Court held that the Brooke Amendment did 
create “enforceable rights,” explaining that the Amendment 
“could not be clearer” in setting an upper limit on chargeable 
rents and in establishing “a mandatory limitation focusing 
on the individual family and its income” (479 U.S. at 430). 
The Court also stated that the standard set by the Amend­
ment and its accompanying regulations was not “too vague 
and amorphous to confer on tenants an enforceable ‘right,’ ” 
since the Amendment and regulations, taken together, 
“specifically set our guidelines that the [housing authorities] 
were to follow” (id. at 431-432). The Court accordingly 
determined that “the benefits Congress intended to confer 
on tenants are sufficiently specific and definite to qualify 
as enforceable rights under Pennhurst and § 1983" (479 U.S. 
at 432).

2. In deciding whether a federal statute creates “en­
forceable rights” under Pennhurst, a court must look beyond 
whether the plaintiffs are among the intended beneficiaries 
of the particular statute. A statute may intentionally benefit 
a particular person or class of persons, without creating 
“specific and definite” rights on their part (Wright, 479 U.S. 
at 432), and without designating them as the appropriate 
agents to enforce whatever rights exist. See Brown, Penn­
hurst As A Source O f Defenses For State And Local 
Governments, 31 Cath. U.L. Rev. 449, 459 (1982). As this 
Court has put it, *‘[t]he question is not simply who would 
benefit from the Act, but whether Congress intended to con­
fer federal rights upon those beneficiaries” (California v. 
Sierra Club, 451 U.S. 287, 294 (1981)). In answering that 
question, a court must look, as this Court did in Pennhurst 
and Wright, to the language and history of the statute to 
discern whether Congress clearly intended to create a



14

“specific and definite” right and to authorize private enforce­
ment of that right in federal court. Several principles should 
guide a court’s approach.

First and foremost, the language of the statute must be 
mandatory and specific in order to create an enforceable 
right. As this Court has explained in a related context, the 
“right- or duty-creating language of the statute has generally 
been the most accurate indicator of the propriety of implica­
tion of a cause of action” (Cannon v. University o f  Chicago, 
441 U.S. 677, 690 n.13 (1979)). The courts must therefore 

. "distinguish statutory provisions that announce broad policy 
goals or general preferences from those that dictate 
specifically what the relevant governmental officials may 
and may not do” (Edwards v. District o f  Columbia, 821 
F.2d 651,656 (D.C. Cir. 1987)). Applying that distinction, 
“the courts of appeals in the aftermath of Pennhurst have, 
for the most part, upheld rights claims in statutes that dic­
tate specific action and leave little room for choice, while 
rejecting rights claims in statutes that merely indicate broad 
preferences” (ibid.). This Court itself has explained that a 
statutory obligation must be “specific and definite" in order 
to create an enforceable right (Wright, 479 U.S. at 432), 
and the courts of appeals have similarly reasoned that the 
statute must be “cast in the imperative" (Alexander v. Polk, 
750 F.2d 250, 259 (3d Cir, 1984)), and must "clearly im- 
pose[ ] an affirmative obligation" (Polchowski v. Gorris, 
714 F.2d 749, 751 (7th Cir. 1983)).10

10 The D.C. Circuit’s decision in Edwards v. District o f  Columbia, 
supra, demonstrates, in our view, an appropriate consideration of 
statutory language in applying the “enforceable rights" exception. Plain­
tiffs there sued a local public housing agency for its alleged failure to 
comply with certain conditions imposed by federal law for the demoli­
tion of a federally funded housing project. Although the Secretary of 
HUD had not approved an application to demolish the project, plain­
tiffs asserted that the statutory conditions on demolition imposed



15

Second, a court is to consider the nature of the federal 
standard imposed by the statute. Where, for example, the 
statute imposes an open-ended standard of “reasonable­
ness,” a court should be reluctant to conclude that Con­
gress intended to authorize federal courts to superintend a 
State’s compliance with that standard. See generally Sun- 
stein, Section 1983 and the Private Enforcement o f  Federal 
Law , 49 U. Chi. L. Rev. 394, 428-430 (1982). Moreover, 
state administrative agencies, which deal on a day-to-day 
basis with the intricacies of their own grant programs, are 
obviously well suited to ascertain what is “reasonable” under 
all the circumstances, and that fact should make a federal 
court particularly reluctant to second-guess the State’s 
assessment.'

independent duties on the local agency that tenants were entitled to en­
force under Section 1983. The court of appeals rejected the claim and 
ordered dismissal of the complaint. Concluding that the federal hous­
ing statute did not create any enforceable rights, the court proper!;, 
distinguished between “broad policy goals" and mandatory, right- 
creating provisions (821 F.2d at 656):

While policy goals and general preferences leave much room for 
governmental officials to determine the means by which these goals 
and preferences are to be carried out, and therefore are ambiguous 
regarding what duties are owed to which citizens, specific language 
of obligation narrowly cabins the discretion of officials, and, by 
the same terms, secures rights to a specific class of people.

The court reviewed the language and legislative history of the statute 
and held that the obligations relied on by the plaintiffs were simply 
conditions precedent to the Secretary’s gram of a demolition applica­
tion; they did not create enforceable obligations independent of the ap­
plication process.



16

B. Section 1396a(a)(13)(A) was not designed to create enforceable 
rights for purposes of 42 U.S.C. 1983“

1. Section 1396a(a)(l3)(A) does not read like a statute 
designed to “dictate specifically what the relevant govern­
mental officials may and may not do” (Edwards, 821 F.2d 
at 656). Far from containing “right- or duty-creating 
language” (Cannon v. University o f  Chicago, 441 U.S. at 
690 n-13), Section 1396a(a)(13)(A) permits participating 
States to devise reimbursement rates “which the State finds, 
and makes assurances satisfactory to the Secretary, are 
reasonable and adequate to meet the costs which must be 
incurred by efficiently and economically operated facilities 

The statute further provides that such rates are to 
be set “in accordance with methods and standards developed 
by the S ta te .” By its terms, therefore, Section 
l396a(a)(13)(A) vests ratemaking discretion in the States, 
subject only to the condition that they make “assurances” 
satisfactory to the Secretary. As this Court explained in 
Pennhurst, “[i]t is at least an open question whether an in­
dividual's interest in having a State provide * * * ‘assurances’ 
[to the Secretary] is a ‘right secured* by the laws of the United 
States within the meaning of § 1983” (451 U.S. at 28).

Moreover, the standard of “reasonableness” set forth in 
the statute suggests that Congress did not intend the federal 
courts to monitor the States’ compliance by way of private 
actions under Section 1983. This Court in Wright concluded 
that the Brooke Amendment and its implementing regula­
tions created enforceable rights because they “specifically

*> Because Section l396a(a)(13)(A) does not create an enforceable 
right for purposes of 42 U.S.C. 1983, there is no need for this Court 
to reach the question whether Congress has created alternative remedies 
sufficient to foreclose enforcement through 42 U.S.C. 1983. See Penn­
hurst, 451 U.S. at 28; Middlesex County Sewerage Auth, v. N at‘l Sea 
Ctammers Ass'n, 453 U.S. I, 19 (1981).



17

set out guidelines that the [housing authorities] were to 
follow in establishing utility allowances” (479 U.S. at 
431-432). Here, by contrast, Section 1396a(a)(l3)(A) pro­
vides in general terms that the State must find, and assure 
the Secretary, only that its reimbursement rates are 
“reasonable and adequate to meet the costs which must be 
incurred by efficiently and economically operated facilities 
in order to provide care and services in conformity with ap­
plicable State and Federal laws * * V ’ The implementing 
regulations reiterate that broad standard, leaving the States 
free to structure reimbursement systems tailored to their own 
objectives.11 Nowhere in the statute can one find the 
“specific language of obligation [that] narrowly cabins the 
discretion of officials, and, by the same terms, secures rights 
to a specific class of people” (Edwards, 821 F.2d at 656). 
Rather, “[t]he subsection is essentially administrative in 
nature” (Polchowski v. Corris, 714 F.2d at 751), entrusting 
to the individual States the duty to define and implement 
a “reasonable” reimbursement system.

The court below acknowledged that Section 
1396a(a)(13)(A) “does not in so many words” require States 
to provide reimbursement rates that are, in fact, “reasonable 
and adequate.” Pet. App. A7. It nonetheless divined in the 
statutory language “an unambiguous intent to assure reim. 
bursement rates” that meet that standard. Ibid. The court 
reasoned that, pursuant to Section 1396a(a), a participating 
State “must” include certain designated elements in its plan, 
including the features required by Section 1396a(a)(13)(A). 
The court surmised that, by using the word “must,” the

11 Thus, 42 C.F.R. 447.252(a) provides simply that the state plan 
“must provide that the requirements of this subpart {implementing Sec­
tion 1396a(a)(13)(A)l are met." 42 C.F.R. 447.253, which elaborates 
the requirements for “state assurances" under Section 1396a(a)(13)(Aj, 
merely requires state Medicaid agencies to “make • • • findings" that 
their Medicaid payment rates are “reasonable and adequate."



18

statute reflects a “congressional intent to condition federal 
assistance on states’ achievement of the express purpose of 
the section, and not simply on states’ assurances of com­
pliance.” Id. at A8 (emphasis added).

The language of the statute cannot be worked so hard. 
State plans “must,” to be sure, contain each of the provi­
sions listed in Section 1396a(a). But that “imperative" 

‘'language (Pet. App. A7)-which may, arguendo, give rise 
to a lawsuit challenging a State’s failure to include one of 

^the designated provisions in its p lan -h as no bearing on 
respondent's lawsuit. Respondent does not assert that peti­
tioners’ plan is missing a term; it asserts, rather, that peti­
tioners have not achieved “reasonable and adequate” rates, 
and it seeks an order requiring petitioners to pay such rates. 
Under the relevant statutory provision, however, no such 
“imperative” duty is imposed on the States. To the contrary, 
pursuant to Section 1396a(a)(13)(A), the state plan need only 
provide for payment “which the State finds, and makes 
assurances satisfactory to the Secretary, are reasonable and 
adequate"-even if the rates that the State pays prove un­
satisfactory to a Section 1983 plaintiff.

2. The legislative history of Section 1396a(a)(13)(A) con­
firms that Congress did not intend, as the court of appeals 
supposed (Pet. App. A8-A10), to create a right to “reason­
able” reimbursement .payments enforceable in federal court. 
To the contrary, the history of the statute reveals that Con­
gress deliberately sought to avoid saddling state reimburse­
ment decisions with cumbersome federal oversight. In view 
of that history, it cannot plausibly be contended that Con­
gress expected private parties to enforce their own views of 
appropriate Medicaid rate-setting under the aegis of a Sec­
tion 1983 action in federal court.

a. In 1972 Congress enacted a “reasonable cost” formula 
for making Medicaid reimbursements to skilled nursing 
facilities and intermediate care facilities. Codified at the time



19

in 42 U.S.C. 1396a(a)(13)(E) (Supp. II 1972), this statute 
required participating States to include in their Medicaid 
plans a provision “for payment of the skilled nursing facility 
and intermediate care facility services provided under the 
plan on a reasonable cost related basis.” Social Security 
Amendments of 1972, Pub. L. No. 92-603, § 249(a), 86 Stat. 
1426. That provision, linking reimbursement to facilities’ 
actual costs, “was designed to assure that payment rates 
would more closely reflect the reasonable costs necessary 
to provide * * * services of adequate quality” (S. Rep. No, 
471, 96th Cong., 1st Sess. 28 (1979)).

In 1979, however, Congress concluded that the “rea­
sonable cost” reimbursement formula was no longer “en­
tirely satisfactory” (S. Rep. No. 471, supra, at 28). Con­
gress found that requiring States to adopt that formula had 
proved to be “inherently inflationary” and “contained] no 
incentives for efficient performance” (ibid.). In 1980, 
therefore, Congress abandoned the “reasonable cost” reim­
bursement system and adopted the so-called Boren Amend­
ment, now embodied in Section 1396a(a)(13)(A). Omnibus 
Reconciliation Act of 1980, Pub. L. No. 96*499, § 962(a), 
94 Stat. 2650-2651.13

The Boren Amendment "represented a significant change 
in the federal [reimbursement] standard," offering the States 
an opportunity to effect “more stringent cost containment” 
while freeing them from excessive “federal oversight of 
[their] reimbursement methodologies" ( Wisconsin Hospital 
Ass'n v. Reivitz, 733 F.2d 1226, 1228 (7th Cir. 1984)).

11 In 1981, Congress abandoned the “reasonable cost” reimbursement 
formula for hospitals as well, providing that hospitals, like nursing 
homes and intermediate care facilities, should be governed henceforth 
by a revised standard now incorporated in 42 U.S.C. 1396a(a)(13)(A). 
See Omnibus Budget Reconciliation Act of 1981, Pub. L. No. 97-33, 
i  2173(a), 95 Stat. 808. See generally Wisconsin Hospital A ss’n v. 
Reivltz, 733 F.2d 1226. 1228 (7th Cir. 1984).



20

Congress chose to “give[ ] the States flexibility and discre­
tion * * * to formulate their own methods and standards 
of payment” (S. Rep. No 471, supra, at 28-29).14 By the 
same token, Congress intended that the degree of federal 
oversight should be significantly reduced. While pointing 
out that the Secretary would continue to insist on 
“assurances * * * that the payment rates * * * are reasonable 
and adequate,” Congress “expect[ed] that the Secretary will 
keep regulatory and other requirements to that minimum 
necessary to assure proper accountability, and not to over­
burden the States and facilities with marginal but massive 
paperwork requirements” (id. at 29).

In enacting the Boren Amendment, therefore, Congress 
made clear that it did not envision rigorous federal scrutiny 
of the States' “assurances" under Section l396a(a)(13)(A), 
To the contrary, Congress “expected that the assurances 
made by the States will be considered satisfactory in the 
absence of a formal finding to the contrary by the 
Secretary.” S. Rep. No. 471, supra, at 29. See also 126 Cong, 
Rec. 17886 (1980) (Sen. Boren) (“[P]ayment methods 
adopted by the States will carry a presumption of com­
pliance”). Indeed, the 1980 Conference Report stated that 
“(ijf, within 90 days of receiving the rates proposed to be 
used by a State, the Secretary has not made a final deter­
mination that the rates proposed meet all applicable re­
quirements of medicaid law, then the rates would be pre­
sumed to meet the medicaid law requirements for the fiscal

14 There was no Senate or House report accompanying the Boren 
Amendment in 1980. Floor discussion on the Amendment, however, 
makes clear that it was drawn from a bill reported the previous year 
by the Senate Finance Committee. See 126 Cong. Rec. 17885-17886 
(1980). The Boren Amendment does not materially differ from the pro­
vision contained in the 1979 bill. See S. Rep. No. 471, supra, at 157-158, 
For that reason, we have set out in the text the relevant portions of 
the Senate report that accompanied the 1979 bill.



21

year for which they were imposed” (H.R. Conf. Rep. No. 
1479, 96th Cong., 2d Sess. 154 (1980)). Consistently with 
this legislative history, the Secretary has maintained that 
Section 1396a(a)(13)(A) does not require him to analyze or 
verify the State’s findings, but only to satisfy himself that 
there is a reasonable basis on which the State’s assurances 
may be accepted. 48 Fed. Reg. 56,051 (1983).

The Boren Amendment, in short, was designed to pro­
mote two closely connected purposes. First, in order to 
reduce the cost of participating in the Medicaid program, 
the Amendment freed the States of the constraints previous­
ly imposed by the “reasonable cost” formula, and allowed 
state agencies “to establish rates on a statewide or other 
geographical basis, a class basis, or an institution-by- 
institution basis” (S. Rep. No. 471, supra, at 29). Second, 
the Amendment was intended to reduce the degree of federal 
oversight, on the theory that excessive federal scrutiny had 
“overburdenfed] the States and facilities with marginal but 
massive paperwork requirements” (ibid.).1* In light of these 
purposes —carefully reflected in the plain language of

15 In promulgating the regulations that implement Section 
1396a(a)(13)(A), the Secretary reiterated in a preamble that the federal 
government should avoid excessive interference with the States’ rate­
setting authority under the Medicaid program. For example, several 
commenters had proposed during the notice and comment period that 
the Secretary "be more explicit as to [the federal] criteria for review 
of State assurances” (48 Fed. Reg. 56,050 (1983)). The Secretary re­
jected that suggestion (Ibid.), finding that “such a list of criteria may 
be viewed as imposing Federal standards for repayment rates, an ef­
fect that would be contrary to the legislative intent.” For the same 
reason, the Secretary rejected a proposal that the federal government 
define the term “efficiently and economically operated facility” as used 
in Section 1396a(a)(13)(A). See 48 Fed. Reg. 56,049 (1983), As the 
Secretary put it (ibid.), “we believe any Federal attempt to impose 
specific definitions would unnecessarily intrude upon the legislatively 
mandated flexibility provided to States under the statute.”



22

Section i 396a(a)( 13)(A) — it is difficult to imagine that Con­
gress intended to authorize federal courts, in actions brought 
against the States under Section 1983, to develop and ap­
ply a federal common law respecting the “reasonableness” 
of particular Medicaid reimbursement rates.

b. The court of appeals took a different view of the 
legislative history of Section 1396a(a)(13)(A), but its con­
clusions cannot withstand analysis. Examining, first, the 
Joint Explanatory Statement of the Committee of Con­
ference, the court observed that the Committee had stated 
“flatly” that it “ ‘intended] that state hospital reimburse­
ment policies should meet the costs that must be incurred 
by efficiently administered hospitals in providing covered 
care and services to medicaid eligibles’ ” (Pet. App. A8). 
The court, however, misconstrues those remarks. Read in 
context, the Conference Committee report simply explain­
ed that Congress had decided to jettison the “reasonable 
cost” reimbursement formula for hospitals, in favor of the 
more flexible standard previously adopted in the Boren 
Amendment for skilled nursing and intermediate care 
facilities. To accomplish that purpose, the 1981 legislation 
added hospitals to the list of facilities already covered by 
Section 1396a(a)( 13)(A) — a provision which included the 
language at issue in this case: "which the State finds, and 
makes assurances satisfactory to the Secretary.” There is 
no suggestion in the legislative history that Congress intend­
ed to confer on private parties an enforceable right to a 
“reasonable and adequate” rate schedule.

The court of appeals recognized that “[t]he legislative 
history * * * indicates that Congress intended no close 
scrutiny by the Secretary of Virginia's assurances of com­
pliance with the mandates of § 1396a(a)(13)(A).” Pet. App. 
A9. And it acknowledged that one “logical reading” of that 
history is that Congress sought to “insulate[ ] State reim­
bursement programs from challenges by hospitals com-



23

pensated at new, lower rates.’' Ibid. The court, however, 
drew the opposite conclusion: it surmised that Congress in­
tended to “guarantee[ ] reasonable and adequate reimburse­
ment to hospitals that achieve cost-efficiency.” Ibid.

We believe that the “logical reading" offers a better ac­
count of the evidence: Congress did not intend to confer 
on Medicaid providers an “enforceable right” to challenge 
state reimbursement decisions in federal court. Lawsuits like 
respondent’s interfere with state autonomy and discretion, 
and they contravene Congress’s intent that the degree of 
federal oversight be minimized. There is no reason to believe 
that Congress wished the participating States to absorb the 
substantial costs entailed by such litigation.14

14 Four years prior to the Boren Amendment, Congress had amended 
the Social Security Act to repeal 42 U.S.C. 1396a(g) (Supp. V 1975), 
a provision that had required participating States to waive their Eleventh 
Amendment immunity from suits brought with respect to Medicaid pay­
ment for inpatient hospital services. Act of Oct. 18, 1976, Pub. L. No. 
94-552, 90 Stat. 2540; see H.R. Rep. No. 1122, 94th Cong., 2d Sess. 
I (1976); S. Rep. 94-1240, 94th Cong., 2d Sess. 1 (1976), Congress re­
pealed that provision, which had been enacted just the previous year, 
because it had “requirejd] States to waive one of their basic rights” and 
had resulted in “an unreasonable burden of suits which (had been] costly 
in terms of time and legal manpower, and which (had made) efficient 
program administration virtually impossible" (H.R. Rep. No. 1122, 
supra, at 4). The House and Senate reports observed in passing that, 
after the repeal, “providers can continue * * * to institute suit for in­
junctive relief in State or Federal courts, as necessary.” Id, at 7 (letter 
from Department of HEW); S. Rep. No. 1240, supra, at 4. Those 
remarks, however, cannot determine the availability of a Section 1983 
cause of action under Section 1396a(a)(13)(A) as it now exists. As noted 
above (pages 18-22 & note 13, supra), Congress substantially revised 
that Section in 1980 and 1981 for the express purpose of conferring 
greater discretion upon the individual States in structuring their 
reimbursement systems, while at the same time reducing significantly 
the degree of federal oversight. Whatever federal remedies may have 
been available to Medicaid providers under the old "reasonable cost”



24

CONCLUSION

The judgment of the court of appeals should be reversed. 
Respectfully submitted.

N o v e m b e r  1989

K e n n e t h  W .  S t a r r  

Solicitor General 
S t u a r t  M .  G e r s o n  

Assistant A ttorney General 
J o h n  G .  R o b e r t s , J r .

Deputy Solicitor General
L a w r e n c e  S. R o b b i n s  

Assistant to the Solicitor General
A n t h o n y  J. S t e i n m e y e r  
I r e n e  M. S o l e t  

A ttorneys

reimbursement system, therefore, did not survive Congress’s substan­
tial revision of Section 1396a(a)(13)(A) in 1980.

U « GOVERNMENT PRINTING OFftCS: 1S89-28S 2M/006O0