Full opinion text
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ NOVEMBER 19, 2004 “MOTION TO DISMISS AND/OR [FOR] SUMMARY JUDGMENT” CLELAND, District Judge. This matter is before the court on Defendants’ November 29, 2004 “Motion to Dismiss and/or [for] Summary Judgment.” This is Defendants’ second motion to dismiss the case. On March 26, 2001, this court issued a detailed written order granting Defendants’ original motion to dismiss based on a lack of jurisdiction and want of a cause of action. Westside Mothers v. Haveman, 133 F.Supp.2d 549 (E.D.Mich.2001). Plaintiffs appealed and, in an opinion dated May 15, 2002, the Sixth Circuit Court of Appeals reversed. Westside Mothers v. Haveman, 289 F.3d 852 (6th Cir.2002). The court of appeals, after revoking its first mandate, issued an amended mandate on August 31, 2004. This court re-opened the case on its docket and, on October 4, 2004, conducted an in-person scheduling/status conference with the attorneys remaining in the case. During the October 2, 2004 conference, counsel for Defendants expressed a desire to file a motion to dismiss based in large part on the United States Supreme Court’s intervening decision in Gonzaga University v. Doe, 536 U.S. 273, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002). Plaintiffs’ counsel also indicated a desire to file an amended complaint. The court subsequently permitted Plaintiffs to file their “First Amended Complaint” on October 18, 2004 and stayed discovery in this case pending review of Defendants’ anticipated and potentially dispositive motion to dismiss. Defendants’ motion has been fully briefed and the court held oral argument on the motion February 2, 2005. For the reasons set forth below, the court will grant in part and deny in part Defendants’ motion. I. BACKGROUND This is a civil rights case brought against Michigan state officials for their alleged failure to provide eligible Michigan children with medical, dental, developmental, and mental health services under the federal Medicaid statute. Plaintiffs claim that Defendants are denying Early and Periodic Screening, Diagnostic, and Treatment (“EPSDT”) services to eligible Medicaid recipients under age 21. Plaintiffs bring this 42 U.S.C. § 1983 action against Janet Olszewski in her official capacity as Director of the State of Michigan Department of Community Health and. Paul Reinhart in his official capacity as Deputy Director of the State of Michigan Medical Services Administration. Plaintiffs Westside Mothers, Families on the Move, Inc., the Michigan Chapters of the American Association of Pediatrics and of Pediatric Dentists, along with five named individual Plaintiffs allege violations of their federal statutory rights secured under the federal Medicaid statute 42 U.S.C. §§ 1396a(a)(8), (a)(10), (a)(30)(A), and (a)(43) as defined by 42 U.S.C. §§ 1396d(a) & (r) and 1396u-2(b)(5). (See Pl.’s First Amend. Compl. at ¶ 2.) Plaintiffs also have filed a motion for class certification pursuant to Federal Rule of Civil Procedure 23. Plaintiffs seek declaratory and injunc-tive relief asking the court to find unlawful Defendants’ policy and practice of denying Plaintiffs (and the asserted class) health services to which they are entitled under the statute. (Id. at 26.) Plaintiffs also ask the court to appoint a Special Master to oversee an injunction requiring Defendants to remedy their past statutory violations: (Id. at 25-26.) There is no dispute that the Medicaid statute at issue is spending clause legislation. “Medicaid is a cooperative federal-state program through which the Federal Government provides financial assistance to States so that they may furnish medical care to needy individuals.” Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 502, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990). The Medicaid program, Title XIX of the Social Security Act, was created in 1965 and “provides a federal subsidy to states that choose to reimburse poor individuals for certain medical care.” Westside Mothers, 289 F.3d at 855. “Although participation in the program is voluntary, participating states must comply with certain requirements imposed by the Act and regulations promulgated by the Secretary of Health and Human Services.” Wilder, 496 U.S. at 502, 110 S.Ct. 2510. States participate in the program through “State plans for medical assistance” that are submitted to and approved by the Secretary of Health and Human Services. 42 U.S.C. § 1396; see also 42 C.F.R. § 430.10. A state that fails to comply with its approved medical assistance plan and’ certain federal requirements runs the risk of having the Secretary revoke its funding. 42 U.S.C. § 1396c. Michigan has elected to participate in the Medicaid program. It operates under a waiver from the Health Care Finance Administration, providing eligible individuals Medicaid services by requiring them to enroll in Health Maintenance Organizations (“HMOs”), also known as managed care entities (“MCEs”). See 42 U.S.C. § 1396u-2(a)(l)(A)(i) (states may “require an individual who is eligible for Medicaid under the state plan ... to enroll with a managed care entity [‘MCE’] as a condition of receiving such assistance”). A medicaid managed care entity “provides or arranges for services for enrollees under a contract ... pursuant to [42 U.S.C. § 1396b(m) ].” 42 U.S.C. § 1396u-2(a)(1)(B)®. All of the individually named Plaintiffs are enrolled in a MCE. Plaintiffs’ First Amended Complaint comprises three counts. Count I is titled “Failure to Provide Healthcare to all Eligible Children,” alleging a breach of 42 U.S.C. § 1396a(a)(8) and (a)(10) as defined by 42 U.S.C. § 1396d(a) & (r). Count II is titled “Failure to Deliver Access to the Children’s Healthcare Services Required by Title XIX,” alleging a breach of rights created under 42 U.S.C. § 1396a(a)(30)(A), as defined by § 1396u~2(b)(5). Count III is titled “Denial of Basic Child Healthcare Outreach and Information” and alleges a violation of 42 U.S.C. § 1396a(a)(43)(A) as defined by § 1396d(a) and (r). All of these counts are brought pursuant to 42 U.S.C. § 1983. Defendants argue that. Count I should be dismissed because: (1) the statutory provisions relied on by Plaintiffs do not create individual federal rights enforceable under 42 U.S.C. § 1983. See Blessing v. Freestone, 520 U.S. 329, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997); Gonzaga University v. Doe, 536 U.S. 273, 283, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002); (2) 42 U.S.C. §§ 1396a(a)(8) and (a)(10) do not create an obligation for the State to provide actual medical services and therefore forecloses the remedy sought' by Plaintiffs; (3) Plaintiffs have no individual federal enforceable right to ensure full or substantial compliance with the Secretary’s participation goal established pursuant to 42 U.S.C. § 1396d(r); (4) there is no genuine issue of material fact that Michigan’s Medicaid program, policies, and procedures provide for all EPSDT screening services as required by federal law; and (5) because a claim that a Medicaid provider failed to provide covered services completely or adequately does not state a claim against the state officials under § 1983. Defendants argue that Count II should be dismissed because neither 42 U.S.C. § 1396a(a)(30)(A) nor § 1396u-2(b)(5) create enforceable rights under § 1983. Lastly, Defendants argue that Count III should be dismissed because no Plaintiff has alleged that he lacked information about the availability of EPSDT services and that there is no genuine issue of fact on this claim because Defendants do provide for informing all eligible Medicaid recipients under age 21 of the availability of EPSDT services as required by 42 U.S.C. § 1396a(a)(43) and described in § 1396d(r). In short, Defendants argue that Plaintiffs fail to state a claim because none of them have alleged that they had been determined eligible but were denied notice. Defendants further argue that Plaintiffs’ complaint erroneously relies on an “effectiveness” requirement not contained within § 1396a(a)(43). II. STANDARDS A. Rule 12(b)(6) When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must construe the complaint in a light most favorable to the plaintiff, accept all the factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of his claims that would entitle him to relief. Sistrunk v. City of Strongsville, 99 F.3d 194, 197 (6th Cir.1996); Cline v. Rogers, 87 F.3d 176, 179 (6th Cir.1996); Wright v. MetroHealth Med. Ctr., 58 F.3d 1130, 1138 (6th Cir.1995). A motion to dismiss may be granted “only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Pratt v. Ventas, Inc., 365 F.3d 514, 519 (6th Cir.2004) (internal quotation marks and citation omitted). When an allegation is capable of more than one inference, it must be construed in the plaintiffs favor. Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir.1995); In re DeLorean Motor Co., 991 F.2d 1236, 1240 (6th Cir.1993); Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.1993). Hence, a judge may not grant a Rule 12(b)(6) motion based on a disbelief of a complaint’s factual allegations. Wright, 58 F.3d at 1138; Columbia Natural Resources, Inc., 58 F.3d at 1109. Though decidedly liberal, this standard of review does require more than the bare assertion of legal conclusions. Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 726 (6th Cir.1996); LRL Properties v. Portage Metro Hous. Auth., 55 F.3d 1097, 1100-01 (6th Cir.1995). The complaint must give the defendant fair notice of the plaintiffs claim and the grounds upon which it rests. Gazette v. City of Pontiac, 41 F.3d 1061, 1064 (6th Cir.1994); Johnson v. City of Detroit, 319 F.Supp.2d 756, 759-60 (E.D.Mich.2004). “In practice, ‘a ... complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory.’ ” Lillard, 76 F.3d at 726 (emphasis in original) (quoting Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir.1988)). “In determining whether to grant a Rule 12(b)(6) motion, the court primarily considers the allegations in the complaint, although matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint also may be taken into account.” Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir.2001) (emphasis omitted) (citing Nieman v. NLO, Inc., 108 F.3d 1546, 1554 (6th Cir.1997)). B. Rule 56 Under Federal Rule of Civil Procedure 56, summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). “Where the moving party has carried its burden of showing that the pleadings, depositions, answers to interrogatories, admissions and affidavits in the record construed favorably to the non-moving party, do not raise a genuine issue of material fact for trial, entry of summary judgment is appropriate.” Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir.1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Summary judgment is not appropriate when “the evidence presents a sufficient disagreement to require submission to a jury.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The existence of some factual dispute, however, does not defeat a properly supported motion for summary judgment; the disputed factual issue must be material. See id. at 252, 106 S.Ct. 2505 (“The judge’s inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict-'whether there is [evidence]' upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.’ ”). A fact is “material” for purposes of summary judgment when proof of that fact would have the effect of establishing or refuting an essential element of the claim or a defense advanced by either party. Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.1984). In considering a motion for summary-judgment, the court must view the facts and draw all reasonable inferences from the admissible evidence presented in a manner most favorable to the nonmoving party. Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir.2003) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). The court is not to weigh the evidence to determine the truth of the matter, but must determine if the evidence produced creates a genuine issue for trial. Sagan v. United States, 342 F.3d 493, 497 (6th Cir.2003). III. DISCUSSION A. Rights Enforceable Under 42 U.S.C. § 1983 All of Plaintiffs’ claims employ 42 U.S.C. § 1983 as an enforcement vehicle. Section 1983 provides, in relevant part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. 42 U.S.C. § 1983 (emphasis added). Section 1983 does not create substantive rights; it merely serves as a vehicle to enforce deprivations of “rights[,] privileges, or immunities secured by the Constitution and laws [of the United States].” Oklahoma City v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985); Gonzaga Univ. v. Doe, 536 U.S. 273, 285, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002) (“ § 1983 merely provides a mechanism for enforcing individual rights ‘secured’ elsewhere, i.e., rights independently ‘secured by the Constitution and laws’ of the United States”); Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979) (“One cannot go into court and claim a ‘violation of § 1983’ — for § 1983 by itself does not protect anyone against anything.”). In Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), the Supreme Court interpreted the “and laws” language in the statute and held that § 1983 may be used to enforce violations of certain rights created by federal statutes as well as rights created by the Constitution. The Maine Court ignored the scanty legislative history associated with the addition of the “and laws” language, recognizing that § 1983 could be used to enforce federal rights created in favor of individual persons by statute. However, the Supreme Court has emphasized that “in order to seek redress through § 1983, ... a plaintiff must assert the violation of a federal right, not merely a violation of federal law.” Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997); see also Gonzaga, 536 U.S. at 283, 122 S.Ct. 2268 (quoting Blessing ). Federal statutes, however, will not give rise to federal rights enforceable by an individual under § 1983 if (1) “the statute [does] not create enforceable rights, privileges, or immunities within the meaning of § 1983,” or (2) “Congress has foreclosed such enforcement ... in the enactment itself.” Wright v. Roanoke Redevelopment and Hous. Auth., 479 U.S. 418, 423, 107 S.Ct. 766, 93 L.Ed.2d 781 (1987). In Blessing v. Freestone, the Supreme Court identified three “factors” to guide a court’s inquiry into whether or not a statute confers an individual federal right: (1) “Congress must have intended that the provision in question benefit the plaintiff;” (2) “the plaintiff must demonstrate that the right assertedly protected by the statute is not so ‘vague and amorphous’ that its enforcement would strain judicial resources;” and (3) “the provision giving rise to the asserted right must be couched in mandatory, rather than precatory, terms.” Blessing, 520 U.S. at 340-41, 117 S.Ct. 1353; Banks v. Dallas Hous. Auth., 271 F.3d 605, 609 (5th Cir.2001). Although courts in the Sixth Circuit have historically applied the three factors identified in Blessing as a “three-part test,” the Supreme Court recently resolved the confusion that such a “test” has caused in determining whether Congress unambiguously conferred rights on individuals to support a cause of action under § 1983. Gonzaga, 536 U.S. at 283, 122 S.Ct. 2268. In Gonzaga, the Court considered whether the Family Educational Rights and Privacy Act (“FERPA”) creates a federal right enforceable by individuals under 42 U.S.C. § 1983. In examining the text and structure of the statutory language relied on by the plaintiff, the court held that FERPA’s nondisclosure provisions did not create federal rights actionable under § 1983. Id. at 290, 122 S.Ct. 2268. In finding that Congress did not create federal rights, the Court determined that FER-PA’s nondisclosure provisions “contain no rights-creating language,” “have an aggregate, not individual focus,” and “serve primarily to direct the Secretary of Education’s distribution of public funds.” Id. The Gonzaga Court tightened and clarified the requirements that must be met before a court may declare that Congress created a federal right enforceable under § 1983 in two fundamental aspects. First, the Supreme Court clarified the conflict between the Court’s implied right of action cases and its cases focusing on enforceable federal rights under § 1983. The Court rejected “the notion that our implied right of action cases are separate and distinct from our § 1983 cases.” “To the contrary, our implied right of action cases should guide the determination of whether a statute confers rights enforceable under § 1983.” Id. at 283, 122 S.Ct. 2268. The court further explained, We have recognized that whether a statutory violation may be enforced through § 1983 “is a different inquiry than that involved in determining whether a private right of action can be implied from a particular statute.” Wilder, supra, at 508, n. 9, 496 U.S. 498, 110 S.Ct. 2510, 110 L.Ed.2d 455. But the inquiries overlap in one meaningful respect — in either case we must first determine whether Congress intended to create a federal right. Thus we have held that “[t]he question whether Congress ... intended to create a private right of action [is] definitively answered in the negative” where a “statute by its terms grants no private rights to any identifiable class.” Touche Ross & Co. v. Redington, 442 U.S. 560, 576, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979). For a statute to create such private rights, its text must be “phrased in terms of the persons benefited.” Cannon v. University of Chicago, 441 U.S. 677, 692, n. 13, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). We have recognized, for example, that Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972 create individual rights because those statutes are phrased “with an unmistakable focus on the benefited class.” Id., at 691, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (emphasis added). But even where a statute is phrased in such explicit rights-creating terms, a plaintiff suing under an implied right of action still must show that the statute manifests an intent “to create not just a private right but also a private remedy.” Alexander v. Sandoval, 532 U.S. 275, 286, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). Id. at 283-84, 122 S.Ct. 2268 (emphases added). The Court has made it clear that “[a] court’s role in discerning whether personal rights exist in the § 1983 context should ... not differ from its role in discerning whether personal rights exist in the implied right of action context.” Id. at 285, 122 S.Ct. 2268. Second, the Court clarified the judicial role and the proper inquiry for courts in determining whether statutes create enforceable rights under § 1983. The Court reviewed its prior cases involving federal spending clause legislation and determined that a court’s fundamental role is to determine whether Congress has created new federal rights unambiguously based on the text and structure of a statute. Id. at 283-91, 122 S.Ct. 2268. The first step the court must take is determining, “whether Congress intended to create a federal right.” Id. at 283, 122 S.Ct. 2268; see also Sabree v. Richman, 367 F.3d 180, 189-192 (3d Cir.2004) (Gonzaga analysis starts with examining statutory text and structure); Long Term Care Pharmacy Alliance, 362 F.3d at 57-58; Schmitt v. City of Detroit, 267 F.Supp.2d 718, 721 (E.D.Mich.2003). Such an intent will be clear from statutory text “phrased in terms of the persons benefited,” which employs “explicit rights-creating language.” Gonzaga, 536 U.S. at 284, 122 S.Ct. 2268. The Gonzaga Court concluded “where the text and structure of a statute provide no indication that Congress intends to create new individual rights, there is no basis for a private suit, whether under § 1983 or under an implied right of action.” Id. at 284, 122 S.Ct. 2268; Alexander v. Sandoval, 532 U.S. 275, 288, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001) (“statutes that focus on the person regulated rather than the individuals protected create ‘no implication of an intention to confer rights on a particular class of persons.’ ”). Furthermore, the Court rejected the argument that federal rights were created by federal statutes so long as Congress “intended that the statute ‘benefit’ putative plaintiffs.” Id. at 282, 121 S.Ct. 1511. “The question is not simply who would benefit from the [statute], but whether Congress intended to confer rights upon those beneficiaries.” California v. Sierra Club, 451 U.S. 287, 294, 101 S.Ct. 1775, 68 L.Ed.2d 101 (1981). As the Gonzaga Court stated, “it is rights, not the broader or vaguer ‘benefits’ or ‘interests,’ that may be enforced under the authority of [§ 1983].” Gonzaga, 536 U.S. at 283, 122 S.Ct. 2268; see also Hughlett, 98 Fed.Appx. at 364 n. 3 (rights-creating language is critical to Congressional intent to create new federal rights). B. Gonzaga, Unambiguously Conferred Rights, and Rights-Creating Language Following the lead of a recent detailed opinion by the Third Circuit in Sabree v. Richman, 367 F.3d 180 (3d Cir.2004), the court finds it important to examine Gonza-ga and the Court’s cases harmonized therein to determine what type of statutory language and structure unambiguously confer rights and what type of language constitutes “rights-creating language.” See Sabree, 367 F.3d at 183-93 (examining the essential characteristics of an “unambiguously conferred right” under Gonzaga). “In legislation enacted pursuant to the spending power, the typical remedy for state noncompliance with federally imposed conditions is not a- private cause of action for nonconjpliance but rather action by the Federal Government to terminate funds to the State.” Pennhurst State Sch. & Hosp., v. Halderman, 451 U.S. 1, 28, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981). Notwithstanding this general principle made clear, in Pennhurst, the Supreme Court has ruled that “in some instances Congress has unambiguously conferred rights thát may be vindicated by individuals suits brought under § 1983.” Sabree, 367 F.3d at 183 (citing Gonzaga). Only twice since Pennhurst, however, has the Supreme Court found congressional intent in spending legislation to confer enforceable rights under § 1983, first in Wright v. Roanoke Redevelopment & Housing Auth., 479 U.S. 418, 107 S.Ct. 766, 93 L.Ed.2d 781 (1987) and then in Wilder v. Virginia Hospital Ass’n, 496 U.S. 498, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990). Gonzaga, 536 U.S. at 280, 122 S.Ct. 2268. In Wright, the Court allowed a § 1983 suit by tenants to recover past overcharges'under’ a rent-ceiling ’ provision of the Public Housing Act. The Court’s decision rested on the ground that the statutory provision at issue “unambiguously conferred ‘a mandatory [benefit] focusing on the individual family and its income.’ ” Id. (quoting Wright, 479 U.S. at 430, 107 S.Ct. 766.) The Court found that “Congress spoke in terms that ‘could not be clearer’ ibid., and conferred entitlements ‘sufficiently specific and definite to qualify as enforceable rights under Pennhurst. ’” Id. Also significant was the lack of a procedure by which tenants could complain. Id. Second, in Wilder v. Virginia Hospital Ass’n, the Supreme Court permitted a § 1983 suit brought by health care providers to enforce a reimbursement provision found in the Medicaid Act, Title XIX of the Social Security Act, the Title at issue in this case. The Court allowed the individual providers to employ § 1983 to enforce rights because “much like the rent-ceiling provision in Wright, [the reimbursement provision of the Medicaid Act 42 U.S.C. § 1396a(l)(13) (1982 ed., Supp. V.) ] explicitly conferred specific monetary entitlements upon the plaintiffs.” Id. The text of the reimbursement provision provided, in relevant part: A State plan for medical assistance must ... provide ... for payment ... of hos.pital services, nursing facility services, and services in an intermediate care facility-for the mentally retarded provided under the plan through the use of rates (determined in accordance with methods and standards developed by the State ...) which the State funds, 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 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 individuals eligible for medical assistance have reasonable access ... to inpatient hospital services of adequate quality. 42 U.S.C. § 1396a(a)(13)(A) (1982 ed., Supp. V). “Congress left no doubt of its intent for private enforcement, we said ... because the provision required States to pay an ‘objective’ monetary entitlement to individual health care providers, with no sufficient administrative means of enforcing the requirement against States that failed to comply.” Gonzaga, 536 U.S. at 280-81, 122 S.Ct. 2268. The Gonzaga court also examined “more recent decisions [that] have rejected attempts to infer enforceable rights from Spending Clause statutes.” Id. at 281, 122 S.Ct. 2268. In Suter v. Artist M., 503 U.S. 347, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992), the Court foreclosed an action under § 1983 filed on behalf of a class of parents and children who sought to enforce provisions of the Adoption Assistance and Child Welfare Act. That Act required states to have a “plan” to “make reasonable efforts to keep children out of foster homes.” Id.; 42 U.S.C. § 671(a)(3), (15) (1988 ed. & Supp. I). The Suter Court explained: Careful examination of the language ... does not unambiguously confer an enforceable right upon the Act’s beneficiaries. The term “reasonable efforts” in this context is at least as plausibly read to impose only a rather generalized duty on the State, to be enforced not by private individuals, but by the Secretary in the manner [of reducing or eliminating payments]. Suter, 503 U.S. at 363, 112 S.Ct. 1360 (quoted approvingly by Gonzaga Univ., 536 U.S. at 281, 122 S.Ct. 2268). In Blessing v. Freestone, the Supreme Court also rejected a § 1983 claim brought by five mothers whose children were eligible to receive child support services from the State of Arizona under Title IV-D of the Social Security Act. Title IV-D required States receiving federal child-welfare funds to “substantially comply” with requirements designed to ensure timely payment of child support. Gonzaga, 536 U.S. at 281, 122 S.Ct. 2268; 42 U.S.C. §§ 651-69 (1996). Plaintiffs asserted that “they had an enforceable individual right to have the State’s program achieve ‘substantial compliance’ with the requirements of Title IV-D,” as required in Title IV-A. Blessing, 520 U.S. at 333, 117 S.Ct. 1353. The Blessing Court held that 42 U.S.C. § 609(a)(8), a provision within Title IV-D authorizing the Secretary of Health and Human Services to reduce payments to a state that does not “substantially comply” with Title IV-D, did not give rise to individual rights actionable under 42 U.S.C. § 1983. Blessing, 520 U.S. at 344, 117 S.Ct. 1353. The Court explained, As best we can tell, the Court of Appeals seemed to think that respondents had a right to require the Director of Arizona’s child support agency to bring the State’s program into substantial compliance with Title IV-D. But the requirement that a State operate its child support program in “substantial compliance” with Title IV-D was not intended to benefit individual children and custodial parents, and therefore it does not constitute a federal right. Far from creating an individual entitlement to services, the standard is simply a yardstick for the Secretary to measure the system/wide performance of a State’s Title IV-D program. Thus, the Secretary must look to the aggregate services provided by the State, not' to whether the needs of any particular person have been satisfied. The Court of Appeals erred not only in finding that individuals have an enforceable right to substantial compliance, but also in taking a blanket approach to determining whether Title IV-D creates rights. It is readily apparent that many other provisions of that multifaceted statutory scheme do not fit our traditional three criteria for identifying statutory rights. To begin with, many provisions, like the “substantial compliance” standard, are designed only to guide the State in structuring its systemwide efforts at enforcing- support obligations. These provisions may ultimately benefit individuals who are eligible for Title IVD services, but only indirectly. Id. at 344-45, 117 S.Ct. 1353. The Gonzaga Court explained the Blessing holding as follows: “Because the provision focused on ‘the aggregate services provided by the State,’ rather than ‘the needs of any particular person,’, it conferred no individual rights and thus could not be enforced by § 1983. We emphasized: ‘To seek redress through § 1983, ... a plaintiff must assert the violation of a federal right, not merely a violation of federal law.’ ” Gonzaga Univ., 536 U.S. at 281, 122 S.Ct. 2268, 153 L.Ed.2d 309 (quoting Blessing, 520 U.S. at 340, 117 S.Ct. 1353 (emphasis in original)). The Blessing Court did not foreclose the possibility that specific provisions in Title IV-D of the Act might create enforceable rights in individuals. Blessing, 520 U.S. at 345, 117 S.Ct. 1353 (“We do not foreclose the possibility that some provisions of Title IV-D give rise to individual rights. The lower court did not separate out the particular rights it believed arise from the statutory scheme, and we think the complaint is less than clear in this regard.”) “Rather[,] the Court concluded that plaintiffs had failed to assert any specific rights, instead relying on the general requirement that Arizona ‘substantially comply’ with its Child Welfare Plan.” Sabree, 367 F.3d at 187 (citations omitted). The Blessing court ultimately remanded the case for the district court to examine the specific claims and provisions of the statute to determine whether there exist specific enforceable rights. In any event, it is not at all apparent that respondents sought any relief more specific than a declaration that their “rights” were being violated and an injunction forcing Arizona’s child support agency to “substantially comply” with all of the provisions of Title IV-D. We think that this defect is best addressed by sending the case back for the District Court to construe the complaint in the first instance, in order to determine exactly what rights, considered in their most concrete, specific form, respondents are asserting. Only by manage-ably breaking down the complaint into specific allegations 'can the District Court proceed to determine whether any specific claim asserts an individual federal right. Blessing, 520 U.S. at 346, 117 S.Ct. 1353. To confer enforceable rights, Congress must employ “rights-ereating language.” Gonzaga, 536 U.S. at 287, 122 S.Ct. 2268; see also Sandusky County Democratic Party v. Blackwell, 387 F.3d 565, 572 (6th Cir.2004) (finding unambiguous rights-creating language in § 302(a)(2) of the Help America Vote Act, Pub.L. 107-252. Title III, § 302, 116 Stat. 1706 (codified at 42 U.S.C. § 15301 et seq.)); Sabree, 367 F.3d at 187 (discussing “rights-ereating language”); S.D. ex rel Dickson v. Hood, 391 F.3d 581, 602-03 (5th Cir.2004) (“[c]ritical to this inquiry is whether the pertinent statute contains ‘rights-ereating’ language”). Rights-creating language “must clearly impart ‘an individual entitlement,’ and have an ‘unmistakable focus on the benefited class’ ” as gleaned from the text and structure of the statutory provision enacted. Sabree, 367 F.3d at 187 (quoting Gon-zaga, 536 U.S. at 287, 122 S.Ct. 2268); Long Term Care Pharmacy Alliance v. Ferguson, 362 F.3d 50, 57 (1st Cir.2004) (“rights creating language” and identification of a discrete class of beneficiaries are “two touchstones” in the Gonzaga analysis). “Statutes that focus on the person regulated rather than the individuals protected create ‘no implication of an intent to confer rights on a particular class of persons.’ ” Alexander v. Sandoval, 532 U.S. 275, 289, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001) (quoting California v. Sierra Club, 451 U.S. 287, 294, 101 S.Ct. 1775, 68 L.Ed.2d 101 (1981)); see also Johnson v. City of Detroit, 319 F.Supp.2d 756, 764 (E.D.Mich.2004) (examining rights-creating language). As this court has explained before, Gonzaga also identified Title VI of the Civil Rights Act of 1964 and Title IX of the Educational Amendments of 1972 as statutes providing examples of rights-ereating language. Gonzaga highlighted the type of rights-ereating language that confers a federal right on individuals by citing to the statutory language contained in Title VI of the Civil Rights Act of 1964 and Title IX of the Educational Amendments of 1972. Gonzaga, 536 U.S. at 283-84, 122 S.Ct. 2268, 153 L.Ed.2d 309. Title VI confers individual federal rights. It provides, in relevant part: “No person in the United States shall ... be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d (emphases added). Likewise, Title IX’s language created individual rights. It provides: “No person in the United States shall, on the basis of sex ... be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a) (emphases added). Johnson, 319 F.Supp.2d at 764-65; see also Sabree, 367 F.3d at 187 (the Supreme Court has recognized “that- Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1973 create individual rights because those statutes are phrased with an unmistakable focus on the benefited class’ ”). It is with this guidance that the court must proceed to determine whether the specific provisions of the Medicaid Act that Plaintiffs have identified in their first amended complaint reflect an unambiguous congressional intent to confer individual federal rights enforceable under the “and laws” language of § 1983. C. The Law of the Case Doctrine Before reaching the specific provisions of the Medicaid statute in this case, however, the court must first address Plaintiffs’ argument that re-examination of whether Plaintiffs have enforceable rights under § 1983 is barred by the law of the case doctrine. (Pls.’ Resp. at 7-8.) “The law-of-the-ease doctrine ‘posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.’ ” Scott v. Churchill, 377 F.3d 565, 569-70 (quoting Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983)). This doctrine, however, merely directs a court’s discretion; it does not limit the tribunal’s power. Id. The so-called “mandate rule” is a specific application of the law of the case doctrine. Id.; see also United States v. Campbell, 168 F.3d 263, 265 (6th.Cir.1999) (“In- essence, the mandate rule is a specific application of the law-of-the-case doctrine.”); Jones v. Lewis, 957 F.2d 260, 262 (6th Cir.1992). Under the mandate rule, “lower courts must adhere to the command of a superior court.” Brunet v. City of Columbus, 58 F.3d 251, 254 (6th Cir.1995). As the Brunet court noted, [U]pon remand of a case for further proceedings after a decision by the appellate court, the trial court must proceed in accordance with the mandate and the law of the case as established on appeal. The trial court must implement both the letter and the spirit of the mandate, taking-into account the appellate court’s ' opinion and the circumstances it embraces. Id. (quotations omitted); see also Allard Enters., Inc. v. Advanced Programming Res., Inc., 249 F.3d 564, 569-70 (6th Cir.2001). “As with all applications of.the law of .the case doctrine, the trial cpurt may consider those issues not decided expressly or impliedly by the appellate court or a previous trail court.” Jones, 957 F.2d at 262 (citing Quern v. Jordan, 440 U.S. 332, 347 n. 18, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979)). At first glance, the law of the case doctrine appears to preclude this court from considering on remand whether the Medicaid statutory provisions cited in Plaintiffs’ First Amended Complaint create enforceable rights under § 1983. The Sixth Circuit considered “[w]hether there is a private right of action under § 1983 for Plaintiffs’ claims.” Westside Mothers, 289 F.3d at 862-63. The Sixth' Circuit held that the district court “erred ‘when it did not apply [the three-part Blessing test] to evaluate plaintiffs’ claims.” Id. at 863. The appellate court went on to state: We now apply [the Blessing] test. First, the provisions were clearly intended to benefit the putative plaintiffs, children who are eligible for the screening and treatment services. See 42 U.S.C. § 1396a(a)(10)(A). “[I]t is well-settled that Medicaid-eligible children under the age of twenty-one ... are the intended beneficiaries of the [screening and treatment] provisions.” Dajour B. v. City of New York, 2001 WL 830674, at *8 (S.D.N.Y. July 23, 2001); accord Miller v. Whitburn, 10 F.3d 1315, 1319 (7th Cir.1993). We have found no federal appellate cases to the contrary. Second, the provisions set a binding obligation on Michigan. They are couched in mandatory rather than precatory language, stating that Medicaid services “shall be furnished” to eligible children, 42 U.S.C. § 1396a(a)(8) (emphasis added), and that the screening and treatment provisions “must be provided,” id. § 1396a(a)(10)(A), see also 42 C.F.R. § 441.56 (mandatory language). Third, the provisions are not so vague and amorphous as to defeat judicial enforcement, as the statute and regulations carefully detail the specific services to be provided. See 42 U.S.C. § 1396d(r). Finally, Congress did not explicitly foreclose recourse to § 1983 in this instance, nor has it established any remedial scheme sufficiently comprehensive to supplant § 1983. See Blessing, 520 U.S. at 346-47, 117 S.Ct. 1353, 137 L.Ed.2d 569. Plaintiffs have a cause of action under § 1983 for alleged noncompliance with the screening and treatment provisions of the Medicaid Act. Id. Although earlier in its opinion the Circuit Court made reference to all of the statutory provisions of the Medicaid statute relied on by Plaintiffs in their original complaint, Westside Mothers, 289 F.3d at 856, the panel’s analysis and summary application of the “Blessing test” does not identify and. discuss each specific statutory provision cited by Plaintiffs. Id. at 862-63; see also Blessing, 520 U.S. at 344, 117 S.Ct. 1353 (court of appeals “erred not only in finding that individuals have an enforceable right to substantial compliance, but also in taking a blanket approach to determining whether Title IV-D [of the Social Security Act] creates rights” and remanding for lower court “to determine exactly what rights, considered in their most concrete, specific form, respondents are asserting”). In fact, the court’s recorded analysis reflects only two of the specific Medicaid provisions cited by Plaintiffs as creating enforceable individual federal rights under § 1983, 42 U.S.C. § 1396a(a)(10)(A) and § 1396a(a)(8). More importantly, the court’s decision on this issue was rendered prior to the Supreme Court’s ruling in Gonzaga University v. Doe which has significantly altered the necessary analysis under Blessing and its progeny. This court is not persuaded by Plaintiffs’ argument that the higher court’s application of the Blessing test demonstrates its “anticipation” of the Supreme Court’s clarifications and commands in Gonzaga. The analysis concludes that “the provisions were clearly intended to benefit the putative plaintiffs, children who are eligible for the screening and treatment services,” but does not contain an examination of the specific statutory language that creates an unmistakable focus on individuals. See Westside Mothers, 289 F.3d at 863. Nor is there identification of the “rights creating” language in the specific provisions at issue. See id. To hold steadfast, under the law of the case doctrine, and to simply apply the Sixth Circuit’s conclusion that “Plaintiffs have a cause of action under § 1983 for alleged noncompliance with the screening and treatment provisions of the Medicaid Act” would require this court to ignore intervening and controlling United States Supreme Court authority which has altered the analysis, at least in applying the first Blessing factor, for all federal courts. See Long Term Care Pharmacy Alliance v. Ferguson, 362 F.3d 50, 57 (1st Cir.2004) (finding that Gonzaga “charted a firm course among prior Supreme Court precedents in some tension” compelling reexamination of a prior panel decision and noting that “[a]n intervening Supreme Court decision trumps the usual rule that a panel decision is to be followed by a successor panel.”). The Sixth Circuit itself has recognized and applied the additional analysis required in the wake of Gonzaga. See Sandusky County Democratic Party v. Blackwell, 387 F.3d 565, 572 (6th Cir.2004) (finding that “the rights-creating language of HAVA [the Help America Vote Act] § 302(a)(2) is unambiguous”). The law of the case doctrine is not so rigid that it forecloses the court from considering each statutory provision in light of Gonzaga’s command requiring “rights creating language.” See Leggett v. Badger, 798 F.2d 1387, 1390 (11th Cir.1986) (district court acted properly in refusing to enforce a mandate that was inconsistent with an intervening change in the law announced by Supreme Court); Morrow v. Dillard, 580 F.2d 1284, 1297 (5th Cir.1978) (proper for the district court to conclude that an intervening Supreme Court decision had superseded the basis for the decision of the court of appeals); see also United States v. Bell, 988 F.2d 247, 251 & n. 2 (1st Cir.1993). In Bell, the court noted: Even where, as here, an appellate court’s mandate does not contemplate resurrecting' an issue on remand, the trial court may still possess some limited discretion to reopen the issue in very special situations! See id. at 150-52; Cochran v. M & M Transp. Co., 110 F.2d 519, 521 (1st Cir.1940). After all, the so-called “mandate rule,” generally requiring conformity with the commands of a superior court on remand, is simply a specific application of the law of the case doctrine and, as such, is a discretion-guiding rule subject to an occasional exception in the interests of justice. See, e.g., Johnson v. Uncle Ben’s, Inc., 965 F.2d 1363, 1370 (5th Cir.1992), petition for cert. filed, 61 U.S.L.W. 3356 (U.S. Sept. 29, 1992) [No. 92-737]; Jones v. Lewis, 957 F.2d 260, 262 (6th Cir.), cert. denied, 506 U.S. 841, 113 S.Ct. 125, 121 L.Ed.2d 80 (1992); United States v. Miller, 822 F.2d 828, 832-33 (9th Cir.1987); Piambino v. Bailey, 757 F.2d 1112, 1119-20 (11th Cir.1985), cert. denied, 476 U.S. 1169, 106 S.Ct. 2889, 90 L.Ed.2d 976 (1986); Continental Bank & Trust Co. v. American Bonding Co., 630 F.2d 606, 608 (8th Cir.1980); Cleveland v. FPC, 561 F.2d 344, 348 (D.C.Cir.1977); Banco Nacional De Cuba v. Farr, 383 F.2d 166, 178 (2d Cir.1967), cert. denied, 390 U.S. 956, 88 S.Ct. 1038, 19 L.Ed.2d 1151 (1968); see also Kotler, 981 F.2d at 13 (on remand, lower court ordinarily retains the “naked power to reexamine” a closed issue, but should exercise such power “sparingly and only when ... necessary to avoid extreme injustice”). In other words, because the law of the case doctrine is a rule of policy and practice, rather than a jurisdictional limitation, it may tolerate a “modicum of residual flexibility” in exceptional circumstances. Rivera-Martinez, 931 F.2d at 151; see also Cochran, 110 F.2d at 521 (warning against allowing the law of the case doctrine to become an instrument of injustice). Id. Simply put, Gonzaga adds another required layer to the analysis which was neither addressed nor decided in the Circuit’s written opinion. See Sabree v. Richman, 367 F.3d 180, 189 (3d Cir.2004) (“[O]ur inquiry does not end [after applying the Blessing test] because, as explained in Gonzaga University, the Blessing Test may only indicate that Plaintiffs ‘fall[ ] within the general zone of interest that the statute is intended to protect; something less than what is required for a statute to create rights enforceable directly from the statute itself (citation omitted). The court concludes that examining each specific statutory provision at issue as directed by the Supreme Court in light of Gonzaga is justified under the current circumstances reflecting a significant change in controlling Supreme Court precedent. This conclusion is warranted, notwithstanding the court’s ordinary duty to follow rigidly the appellate court’s mandate. Plaintiffs’ argument to the contrary is not persuasive. Plaintiffs argue that the Sixth Circuit’s finding that the statutes were “clearly intended to benefit the putative plaintiffs” ends, the inquiry. This argument, however, ignores the Supreme Court’s command in Gonzaga. In addition, Plaintiffs cite two cases supporting their argument, Johnson v. City of Detroit, 319 F.Supp.2d 756, 771 n. 8 (E.D.Mich.2004) and Franklin v. Francis, 36 F.Supp.2d 1008, 1011 (S.D.Ohio 1999). Plaintiffs claim that “regardless of any new arguments defendants may make and any ‘questions whether the Sixth Circuit’s decisions on this issue remain viable in light of recent Supreme Court precedent,’ as in Johnson, this Court should ‘continue to apply the Sixth’s Circuit’s approach until it is overruled.’ ” (Pls.’ Resp. at 7-8 (citing Johnson, 319 F.Supp.2d at 771).) This argument reflects either a misunderstanding or mischaracterization of the circumstances confronting the court in Johnson. In the portion of Johnson v. City of Detroit cited by Plaintiffs, this court detailed the circuit split on the issue of whether federal regulations alone (as opposed to regulations that are consistent with statutory rights) may create enforceable rights under § 1983. Johnson, 319 F.Supp.2d. at 770-71. After noting that the Supreme Court had not directly resolved this issue, the court detailed the position taken by a majority of the Circuit Courts of Appeal, but not adopted by the Sixth Circuit. Id. After noting more persuasive cases from sister circuits rejecting the Sixth Circuit’s rule, the court applied the prevailing rule in this circuit, permitting regulations to create enforceable rights by their own accord. Id.; see Loschiavo v. City of Dearborn, 33 F.3d 548, 551 (6th Cir.1994); Levin v. Childers, 101 F.3d 44, 47 (6th Cir.1996). The court followed mandatory circuit court precedent precisely because the Supreme Court had not addressed the issue and prior circuit precedent was binding. Here, the Supreme Court, in Gonzaga, has held that there is at least more analysis required in applying the first Blessing factor. There is no question that only “unambiguously conferred” rights will support a § 1983 action. Gonzaga, 536 U.S. at 283, 122 S.Ct. 2268; Sandusky County Democratic Party v. Blackwell, 387 F.3d 565, 572 (6th Cir.2004). Franklin merely notes the unremarkable proposition that the district court is generally bound by the terms of an appellate ruling. It says nothing of intervening changes in the law announced by the U.S. Supreme Court. Accordingly, the court turns to Defendants’ Gonzaga arguments. D. Plaintiffs’ Count I “Failure to Provide Healthcare to all Eligible Children” “The Medicaid Act is ... a large and complex statute, and whether plaintiffs seeking to enforce a federal right under the Medicaid Act can meet this requirement depends on which statutory provisions they rely.” Frazar v. Gilbert, 300 F.3d 530, 539 (5th Cir.2002), rev’d on other grounds, 540 U.S. 431, 124 S.Ct. 899, 157 L.Ed.2d 855 (2004). “Only by manage-ably breaking down the complaint into specific allegations can the District Court proceed to determine whether any specific claim asserts an individual federal right” enforceable under § 1983. Blessing, 530 U.S. at 330-31, 120 S.Ct. 2246. In Count I, Plaintiffs claim that Defendants have refused or failed to provide “medical assistance” with “reasonable promptness” to “all eligible individuals” in violation of 42 U.S.C. §§ 1396a(a)(8) and (a)(10), as defined by 42 U.S.C. § 1396d(a) and (r). (Pis.’ First Amend. Compl. at ¶¶ 47-48.) The court will examine Plaintiffs’ claim in Count I in two stages. First, it will examine whether these specific provisions of the Medicaid Act create enforceable rights under § 1983. Second, if so, the court will examine the scope of such rights and to what extent Plaintiffs have stated a claim upon which relief .may be granted on those rights. 1. Whether §§ 1396a(a)(8) and (a) (10) Create Enforceable Rights in Plaintiffs Statutory interpretation always begins with the text. Hoge v. Honda of America Mfg., Inc., 384 F.3d 238, 246 (6th Cir.2004) (quoting Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409, 113 S.Ct. 2151, 124 L.Ed.2d 368 (1993) (“The starting point in interpreting a statute is its language, for ‘[i]f the intent of Congress is clear, that is the end- of the matter.’ ”)). Section 1396a(a) describes the contents of “a State plan for medical assistance” under Title XIX. Specifically, § 1396a(a)(8), the “reasonable promptness” provision and § 1396a(a)(10)(A) provide: (a) Contents A State plan for medical assistance must— (8) provide that all individuals wishing to make application for medical assistance under the plan shall have the opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible individuals; (10) provide— (A) for making medical assistance available, including at least the care and services listed in paragraphs (1) through (5), (17) and (21) of section 1396d(a) of this title to (i) all individuals [who meet certain requirements] 42 U.S.C. § 1396a(a). The term “medical assistance” as used in §§ 1396a(a)(8) and (a)(10) is defined at 42. U.S.C. § 1396d(a). That Section provides, in relevant part: (a) Medical Assistance The term “medical assistance” means payment of part or all of the cost of the following care and services ... to individuals ... who are (i)under. the age .of 21, or at the option of the State, under the age of 20, 19, or 18 as the State may choose ... [omitted here is a list of remaining eligible individuals] but whose income and resources are insufficient to meet all of such cost — ■ (1) inpatient hospital services' (other than services in an institution for mental diseases); (2) (A) outpatient hospital services, (B) consistent with State law permitting such services, rural health clinic services (as defined in subsection (I)(l) of this section) and any other ambulatory services which are offered by a rural health clinic (as defined in subsection (I)(l) of this section) and which are otherwise included in the plan, and (C) Federally-qualified héalth center services (as defined in subsection (I)(2) of this section) and any other ambulatory services offered by a Federally-qualified health center and which are otherwise included in the plan; (3) other laboratory and X-ray services; (4) (A) nursing facility services (other than services in an institution for mental diseases) for individuals 21 years of age or older; (B) early and periodic screening, diagnostic, and treatment services (as defined in subsection (r) of this section) for individuals who are eligible under the plan and are under the age of 21; and (C) family planning services and supplies furnished (directly or under arrangements with others) to individuals of child-bearing age (including minors who can be considered to be sexually active) who are eligible under the State plan and who desire such services and supplies .... 42 U.S.C. § 1396d(a) (emphasis added). • Subsection (r) defines “early and periodic screening, diagnostic and treatment” (EPSDT) services as follows: The term “early and periodic screening, diagnostic, and treatment services” means the following items and services: (1) Screening services— (A) which are provided— (i) at intervals which meet reasonable standards of medical and dental practice, as determined by the State after consultation with recognized medical and dental organizations involved in child health care and, with respect to immunizations under subparagraph (B)(iii), in accordance with the schedule referred to in section 1396s(c)(2)(B)(i) of this title for pediatric vaccines, and (ii) at such other intervals, indicated as medically necessary, to determine the existence of certain physical or mental illnesses or conditions; and (B) which shall at a minimum include— (i) a comprehensive health and developmental history (including assessment of both physical and mental health development), (ii) a comprehensive unclothed physical exam, (iii) appropriate immunizations (according to the schedule referred to in section 1396s(c)(2)(B)(i) of this title for pediatric vaccines) according to age and health history, (iv) laboratory tests (including lead blood level assessment appropriate for age and risk factors), and (v) health education (including anticipatory guidance). (2) Vision services— (A) which are provided— (i) at intervals which meet reasonable standards of medical practice, as determined by the State after consultation with recognized medical organizations involved in child health care, and (ii) at such other intervals, indicated as medically necessary, to determine the existence of a suspected illness or condition; and (B) which shall at a minimum include diagnosis and treatment for defects in vision, including eyeglasses. (3) Dental services— (A) which are provided— (i) at intervals which meet reasonable standards of dental practice, as determined by the State after consultation with recognized dental organizations involved in child health care, and (ii) at such other intervals, indicated as medically necessary, to determine the existence of a suspected illness or condition; and (B) which shall at a minimum include relief of pain and infections, restoration of teeth, and maintenance of dental health. (4) Hearing services— (A) which are provided— (i) at intervals which meet reasonable standards of medical practice, as determined by the State after consultation with recognized medical organizations involved in child health care, and (ii) at such other intervals, indicated as medically necessary, to determine the existence of a suspected illness or condition; and (B) which shall at a minimum include diagnosis and treatment for defects in hearing, including hearing aids. (5)Such other necessary health care, diagnostic services, treatment, and other measures described in subsection (a) of this section to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the State plan. Nothing in this subchapter shall be construed as limiting providers of early and periodic screening, diagnostic, and treatment services to providers who are qualified to provide all of the items and services described in the previous sentence or as preventing a provider that is qualified under the plan to furnish one or more (but not all) of such items or services from being qualified to provide such items and services, as part of early and periodic screening, diagnostic, and treatment services. The Secretary shall, not later than July 1, 1990, and every 12 months thereafter, develop and set annual participation goals for each State for participation of individuals who are covered under the State plan under this subchapter in early and periodic screening, diagnostic, and treatment services. 42 U.S.C. § 1396d(r) (emphasis added). Other courts that have considered whether §§ 1396a(a)(8) and (a)(10) create individual federal rights in Medicaid recipients enforceable via § 1983 since the Court decided Gonzaga have come to contrary conclusions. Compare Sabree, 367 F.3d at 190 (finding unmistakable individual focus in §§ 1396a(a)(8), (a)(10), and (a)(15) and concluding that, although the more general Medicaid Act provisions at § 1396 and § 1396c do not contain rights-creating language, they do not foreclose a finding of such enforceable rights in the more specific provisions of §§ 1396a(a)(8) & (a)(10)); S.D. ex rel Dickson, 391 F.3d at 603 (“EPSDT care and services are listed in paragraph 4 of § 1396d(a) and, by reference to § 1396d(r), include all the health care, treatment, services, and other measures described in § 1396d(a) when necessary for corrective or ameliorative purposes. [The language of §§ 1396a(a)(10)(A)(i), 1396d(a), and 1396d(r) ] is precisely the sort of ‘rights-creating’ language identified in Gonzaga as critical to demonstrating a congressional intent to establish a new right.”); Mendez v. Brown, 311 F.Supp.2d 134, 140 (D.Mass.2004) (“sections 1396a(8), (10) and (17) all contain ‘rights creating’ language”); Clark v. Richman, 339 F.Supp.2d 631 (M.D.Pa.2004) (following Sabree and holding that these sections create enforceable rights to “medical assistance”); Bryson v. Shumway, 308 F.3d 79, 88 (1st Cir.2002) (concluding, without significant analysis in light of Gonzaga, that the reasonable promptness provision § 1396a(a)(8) creates enforceable rights); Memisovski v. Maram, No. 92 C 1982, 2004 WL 1878332, at *9 (N.D.Ill. Aug.23, 2004) (EPSDT provisions found in Medicaid Act create enforceable rights to services); with M.A.C. v. Betit, 284 F.Supp.2d 1298, 1307 (D.Utah 2003) (reasonable promptness requirement of § 1396a(a)(8) does not contain explicit rights-creating language and merely places certain conditions upon a state seeking Medicaid funding); Sanders v. Kansas Dep’t of Soc. and Rehabilitation Servs., 317 F.Supp.2d 1233, 1250 (D.Kan.2004) (noting that whether the language of § 1396a(a)(8) creates individual rights enforceable under § 1983 presents a "close question and concluding that its language “creates a duty of the State to furnish ‘medical assistance’ with reasonable promptness,” but does not contain the explicit rights-creating language described in Gonzaga). See also Frazar v. Gilbert, 300 F.3d 530, 544 (5th Cir.2002) (pre-Gonzaga decision finding that “[although relief under § 1983 for a violation of EPSDT provisions may be available, perfect state compliance with these provisio