"Making Medical Assistance Available": Enforcing the Medicaid Act's Availability Provision Through § 1983 Litigation

This Note examines the § 1983 enforceability of the Medicaid Act’s “availability provision,” which requires states to “make[ ] medical assistance available” to all individuals who qualify for benefits. Although traditionally courts have found the availability provision enforceable through § 1983, two recent changes may cause courts to reexamine this question. First, in Gonzaga University v. Doe, the Supreme Court articulated a new and more stringent test for § 1983 enforceability that turns on congressional intent to confer an enforceable right. As a result of Gonzaga, two Medicaid provisions have been found unenforceable in a majority of circuits that have addressed the question. Second, the Deficit Reduction Act (DRA) amended the Medicaid Act to allow states more flexibility in their delivery of benefits to certain groups, which, some argue, may indicate that Congress did not intend beneficiaries to have a right enforceable through § 1983. This Note argues that despite Gonzaga and the DRA, the availability provision continues to confer individual rights enforceable through § 1983.