Citations
- 660 F.3d 370
Full opinion text
ORDER
The opinion filed on August 24, 2011 is amended as follows.
On page 16214 of the Slip Opinion, the text beginning with “Plaintiffs argue that” and ending with “due process requirements” on page 16215 is deleted, and is replaced with the following text and footnotes five and six:
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. The Secretary's regulatory interpretation also appears to be consistent with prior practice. In a 2003 letter from HHS to AHCCCS about Arizona's waiver application, HHS stated: "In August 2001, Rhode Island received approval to 'flip' optional populations out of their Medicaid State plan and into their [1315] in order to impose cost sharing in excess of levels allowed in Medicaid.”
. The Secretary is empowered to make both AFDC and Medicaid demonstration waivers under 42 U.S.C. § 1315(a).
. Here, as in Beno, because we find that the Secretary’s review of the first two § 1315 requirements was insufficient, we need not address whether her review satisfied the third requirement. 30 F.3d at 1072 C‘[W]e need not resolve this issue of statutory interpretation or determine the precise meaning of § 1315(a)'s 'extent and period’ language.”).
. Plaintiffs' citation to Beno in support of their argument that § 3515b applies to the heightened copayments is misplaced. In Beno, this court observed that 45 C.F.R. ''[sjection 46.101(b)(5) ... exempts research projects, including most public benefits research, 'which are conducted by or subject to the approval of department or agency heads' from” § 3515b. 30 F.3d at 1070 (quoting 45 C.F.R. § 46.101(b)(5)). Moreover, because Beno vacated the Secretary’s § 1315 waiver for being arbitrary and capricious, it did “not address plaintiffs’ human subjects claim.” Id. at 1076 n. 48. Accordingly, Beno does not help Plaintiffs’ human participants claim here.
. In rejecting Plaintiffs’ argument, the district court concluded that Medicaid’s due process requirements do not apply here because Plaintiffs are not covered under Arizona's state plan. Plaintiffs contend that the district court's ruling is inconsistent with the administrative record and the requirements of 42 U.S.C. § 1315. Specifically, Plaintiffs argue that the statutory due process requirements of 42 U.S.C. § 1396a(a)(3) do apply to Arizona's demonstration project because all Medicaid laws that are not specifically waived by the Secretary in an approval of a state's demonstration project continue to apply. Here, the Secretary approved Arizona’s demonstration project, and an amendment to it, in January and December 2001. Both approval letters included "Special Terms and Conditions” that stated clearly that ”[a]ll requirements of the Medicaid program expressed in laws, regulations, and policy statements, not expressly waived or identified as not applicable in the award letter of which these amended Special Terms and Conditions are part, will apply----” Neither approval contained reference to § 1396a(a)(3). In light of these circumstances, we agree with Plaintiffs that the due process requirements of § 1396a(a)(3) apply to Arizona’s demonstration project.
. Although we do not decide the constitutionality of the challenged 2003 notices, we note that it is questionable whether they satisfied minimal due process requirements, as they are similar to notices we found constitutionally deficient in Barnes v. Healy, 980 F.2d 572, 579 (9th Cir.1992), and those the district court found deficient in Rodriguez v. Chen, 985 F.Supp. 1189, 1195 (D.Ariz.1996).