FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

PEG BALL; BENNIE JAMES, as               
grandfather and guardian of Cree
James, a minor person; JEANNE
SPINKA, as an individual and as a
representative of a class of persons
similarly situated,
                 Plaintiffs-Appellees,
                 and
VENETTA GRAHAM; PEGGY WILLIAM;
JUDETH HINTON; GRACE COLLIER;                  No. 04-16963
VIRGINIA HASKELL; LARRY
WILLIAMS,                                       D.C. No.
                                             CV-00-00067-EHC
              Plaintiffs-Intervenors-           OPINION
                            Appellees,
                  v.
ANTHONY D. RODGERS, Director of
the Arizona Health Care Cost
Containment System, THE ARIZONA
HEALTH CARE COST CONTAINMENT
SYSTEM ADMINISTRATION, and the
STATE OF ARIZONA,
             Defendants-Appellants.
                                         
        Appeal from the United States District Court
                 for the District of Arizona
         Earl H. Carroll, District Judge, Presiding

                 Argued September 12, 2006
                  Submitted July 17, 2007
                  San Francisco, California

                      Filed July 17, 2007

                              8567
8568                      BALL v. RODGERS
        Before: Betty B. Fletcher and Marsha S. Berzon,
       Circuit Judges, and David G. Trager,* Senior Judge.

                    Opinion by Judge Berzon




   *The Honorable David G. Trager, Senior United States District Judge
for the Eastern District of New York, sitting by designation.
                           BALL v. RODGERS                         8571
                             COUNSEL

Logan T. Johnston, Johnston Law Offices, Phoenix, Arizona,
for the defendants-appellants.

Sally Hart and Jennifer L. Nye, Arizona Center for Disability
Law, Tuscon, Arizona, and Sarah Lenz Lock, AARP Litiga-
tion, Washington, D.C., for the plaintiffs-appellees.


                              OPINION

BERZON, Circuit Judge:

   A certified class of elderly, physically disabled, and
developmentally disabled Medicaid beneficiaries (“the Med-
icaid beneficiaries”) alleges that Arizona is failing to provide
them with adequate home- and community-based health care
services, thereby violating several provisions of the federal
Medicaid Act, 42 U.S.C. §§ 1396 et seq.1 Defendant Anthony
D. Rodgers — director of the Arizona Health Care Cost Con-
tainment System (“AHCCCS”),2 the state agency that admin-
isters Arizona’s Medicaid program — appeals a district court
judgment permitting the case to proceed and holding, after a
bench trial, that the state was indeed operating its Medicaid
program inconsistently with federal requirements. Rodgers
(“the Director” or “Arizona” or “the state”) also appeals the
district court’s decision to grant the Medicaid beneficiaries
permanent injunctive relief.3

  Since the district court’s judgment was entered, there has
been an intervening change in our circuit’s case law of critical
  1
    Unless otherwise stated, all statutory citations are to 42 U.S.C.
  2
    The acronym is pronounced “access.”
  3
    The district court’s judgment was originally directed against Phyllis
Biedess, former director of AHCCCS. Rodgers has since replaced Biedess.
8572                        BALL v. RODGERS
importance to this case. The district court originally con-
cluded that Arizona violated the Medicaid Act’s “equal
access” provision, § 1396a(a)(30)(A). We have since held that
this provision does not accord Medicaid recipients individual
rights enforceable under § 1983. See Sanchez v. Johnson, 

, 1059-60 (9th Cir. 2005). We therefore must
reverse the judgment below insofar as it rests on this viola-
tion.

   Sanchez does not, however, wholly determine this appeal.
The district court separately held that Arizona violated two
other Medicaid Act subsections, known as the “free choice”
provisions, §§ 1396n(c)(2)(C) and (d)(2)(C).4 Under these
provisions, we conclude, Medicaid recipients enjoy rights that
can be enforced in a § 1983 cause of action. For reasons that
will be discussed infra, we do not go beyond that conclusion
in this appeal. Instead we remand to the district court for fur-
ther fact-finding and, if the facts and law so merit, entry of a
new injunction tailored to the scope of the surviving claims.
On remand, the district court should also consider whether
Arizona violated the Americans with Disabilities Act
(“ADA”), §§ 12131-12134, and Section 504 of the Rehabilita-
tion Act of 1973, 29 U.S.C. § 794 — two claims that survived
the summary judgment phase of the proceedings below but
which the district court did not address in its post-trial deci-
sion.

                                     I

                                    A

   On January 27, 2000, Peg Ball, Cree James, and Jeanne
  4
    The Medicaid Act contains a third section sometimes referred to as a
“freedom of choice” provision, § 1396a(a)(23). That section is concerned
with patients’ choice among medical assistance providers and is not at
issue here. So when we refer in this opinion to the “free choice” provision,
we refer, unless we state otherwise, to §§ 1396n(c)(2)(C) and (d)(2)(C).
                            BALL v. RODGERS                             8573
Spinka filed a complaint seeking declaratory and injunctive
relief against Rodgers and the state. Ball, James, and Spinka,
like the class members they represent, each qualify for Medic-
aid, “a cooperative federal-state program that directs federal
funding to states to assist them in providing medical assis-
tance to low-income individuals.” See Katie A. v. Los Angeles
County, 

, 1153-54 (9th Cir. 2007); see also
§ 1396 (explaining that the purpose of Medicaid is to “en-
abl[e] each State, as far as practicable under the conditions in
such State, to furnish . . . medical assistance on behalf of . . .
individuals, whose income and resources are insufficient to
meet the costs of necessary medical services”).

   Each plaintiff also qualifies for home- and community-
based services (“HCBS”) through a federal “waiver program”
that allows states to give individuals who would otherwise be
eligible to receive Medicaid benefits in a more traditional,
long-term institution the option of receiving care in their
homes or in community-based residences.5 Congress enacted
the HCBS waiver program “in response to the fact that a dis-
proportionate percentage of Medicaid resources were being
used for long-term institutional care and studies showing that
many persons residing in Medicaid-funded institutions would
be capable of living at home or in the community if additional
support services were available. . . .” See 

. States qualify for the program by applying to the
Department of Health and Human Services and certifying to
that agency that the cost of caring for a qualified individual
through HCBS “will be less than or equal to the cost” of car-
ing for him in an institution. Id.; see also Bryson v. Shumway,

, 82 (1st Cir. 2002) (describing application pro-
cess and goals of the HCBS waiver program and explaining
that the program is intended to be “expenditure-neutral”).
  5
   In the district court, this case was tried on the premise that Arizona’s
HCBS waiver program was authorized under § 1396n of the Medicaid
Act. As will appear, the state now says that this is not the case. See discus-
sion infra pp. 8608-09.
8574                        BALL v. RODGERS
   In Arizona, HCBS-eligible Medicaid recipients or their
guardians can choose from a variety of noninstitutional care
options, including adult foster care residences, assisted living
homes, assisted living centers, hospices, or group homes.
They also can elect to remain in their own homes. Under any
of these noninstitutional care options, beneficiaries may qual-
ify to receive regular living assistance from “attendant care
workers.” These workers report to the homes or community-
based residences of Medicaid recipients, often daily, and,
among other things, lift them out of their beds, place them in
their wheelchairs, bathe them, help them use the bathroom,
feed them, cook for them, administer shots, give medications,
or accompany them on visits to the doctor or the grocery
store. In other words, they make relatively independent lives
possible for individuals who, medically speaking, are well
enough that they do not require hospitalization or other forms
of twenty-four-hour care.6

  It is this particular benefit — the services of attendant care
workers — that is the focal point of this class action. Accord-
ing to the Medicaid beneficiaries, their decision to opt for
home- or community-based care was repeatedly compromised
  6
    Lead plaintiff Ball, for example, is a wheelchair-bound quadriplegic,
who suffers from spinal muscular atrophy. According to the complaint,
Ball relies on attendant workers to lift her out of bed and into a motorized
wheelchair as well as to help her with “dressing, bathing, eating, and toi-
leting.” Without this help, Ball alleges in the complaint, she would be
unable to lead “an active and productive life,” which involves running her
own business out of her home and serving on a statewide committee
focused on helping the physically disabled.
   Named plaintiffs James and Spinka receive similar assistance from
attendant care workers. James is a child who is a resident of a Navajo res-
ervation located within Arizona’s borders and has been diagnosed with
periventricular leukomalacia, mental retardation, and developmental
delay. According to the complaint, James “requires constant supervision,
and assistance with all activities of daily living, including feeding and toi-
leting,” which attendant care workers provide. Spinka is a quadriplegic,
who relies on attendant care workers to lift her out of bed and into a
wheelchair, dress her, cook for her, and do housekeeping and shopping.
                            BALL v. RODGERS                             8575
when state officials failed to provide them with adequate
attendant-care-worker services. Their complaint describes
scenarios in which attendant care workers “quit on short
notice because they found better paying jobs” or where “no
attendant care workers [were] available at all.” On other occa-
sions, the Medicaid beneficiaries alleged, the attendant care
workers who arrived at their residences proved poorly trained.
“If the shortfall in attendant care services is not corrected,”
their complaint asserted, “plaintiffs and other HCBS benefi-
ciaries will be unable to continue living in their homes,” and
thus be compelled to move into the very institutions the
HCBS waiver program was designed to help them avoid.

   By forcing the Medicaid beneficiaries into this precarious
position, they alleged, Arizona violated several federal stat-
utes, including: (1) the Medicaid Act’s “equal access” provi-
sion, § 1396a(a)(30)(A); (2) the Medicaid Act’s “free choice”
provisions, §§ 1396n(c)(2)(C) and (d)(2)(C); (3) provisions of
the ADA that require that HCBS be made available to quali-
fied individuals with disabilities, §§ 12131-34; and (4) Sec-
tion 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794,
and its implementing regulations.

                                     B

  After granting summary judgment to Arizona on several
causes of action,7 and deciding various procedural
  7
     The Medicaid beneficiaries’ complaint had alleged violations of: (1)
§ 1396a(a)(8), the Medicaid Act’s “reasonable promptness” provision; (2)
42 C.F.R. § 435.930(b), a Medicaid Act implementing regulation which
mandates that once an individual has been found eligible, the state agency
must “furnish Medicaid regularly . . . until [he or she is] found to be ineli-
gible”; (3) Arizona law, including Arizona Revised Statute §§ 36-2931 et
seq., and “the agreement in the Arizona State [Medicaid] Plan that HCBS
. . . be provided to eligible persons”; (4) “the notice and hearing require-
ments” of the Fourteenth Amendment’s Due Process Clause; (5) the Med-
icaid Act’s “notice and fair hearing requirements,” § 1396a(a)(3); 42
8576                         BALL v. RODGERS
matters,8 the district judge ultimately presided over a three-
day bench trial. Testifying at the trial were Medicaid recipi-
ents, AHCCCS officials, subcontractors who employed atten-
dant care workers on the state’s behalf, and a labor economist,
who offered evidence regarding the wage rate needed to
attract a sufficient number of attendant care workers to the
Medicaid market. The district court issued its final judgment
in August 2004, holding that Arizona had violated both the
Medicaid Act’s equal access and the Act’s free choice provi-
sions by failing to provide the Medicaid beneficiaries with
adequate HCBS. The decision made no mention of the ADA
or Rehabilitation Act claims.

  As part of its decision, the district court made several find-
ings of fact, which we summarize here. To begin, the district
court found that Arizona underpaid its attendant care workers

C.F.R. §§ 431.200 et seq.; and (6) the “notice, grievance and hearing
requirement” of Arizona Revised Statute § 36-2903.01 and Ariz. Admin.
Code R9-22-316. On May 8, 2002, the district court granted Arizona’s
cross-motion for summary judgment on each of these claims. The Medic-
aid beneficiaries have not cross-appealed that order.
   The Medicaid beneficiaries’ complaint also alleged that Arizona vio-
lated § 1396a(a)(10)(A)(ii)(VI), a Medicaid Act provision that requires
that “[a] state plan for medical assistance” provide “home or community-
based services” to individuals covered by a HCBS waiver granted to a
state under §§ 1396n(c), (d), or (e). Although they moved for summary
judgment on this claim, the district court never addressed it in its order
granting summary judgment with respect to some claims and denying it
with respect to others. It also never addressed this statute in its final, post-
trial decision. Neither party has raised or briefed this claim on appeal.
   8
     Two of these are worth noting: First, the district court granted a motion
to intervene filed by six Arizona residents who also qualified for Medicaid
and HCBS. Second, the court also granted the Medicaid beneficiaries’
motion for class certification under Federal Rule of Civil Procedure
23(b)(2), defining the class as “includ[ing] all persons in the State of Ari-
zona who have been or will be eligible for [HCBS] from [AHCCCS], but
are not provided with the full amount of such services prescribed in their
care plans.”
                        BALL v. RODGERS                     8577
as compared to what these workers could otherwise earn in
the non-Medicaid home care market. This wage differential,
it found, created a shortage of attendant care workers in the
Medicaid system, a shortage that, in turn, both created “exten-
sive waiting lists of beneficiaries who qualified for attendant
care workers” and decreased the quality of care available for
HCBS beneficiaries. The chronic shortfall of attendant care
workers, the district court went on, would not have occurred
had the state paid these workers more competitive wages —
in particular, a $9- or $10-per-hour wage rate, rather than the
$6.25- to $8.50-per-hour wage rate then in effect.

   Aside from these findings concerning wages, the district
court also found that other of Arizona’s policies and proce-
dures contributed to inadequate HCBS. For example, the state
did not have contingency plans in place for those times when
attendant care workers did not show up as scheduled; did not
survey beneficiaries to ensure they were receiving adequate
services; did not systematically monitor gaps in service; and
did not have a grievance process in place so that beneficiaries
could report these gaps.

   Overall, the district court found, “[i]t is the policy of AHC-
CCS that an HCBS beneficiary assumes the risk, by choosing
to remain at home rather than be institutionalized, that ser-
vices he or she is depend[e]nt upon will not be delivered.”
The result of this policy, the district court continued, was
exactly as the Medicaid beneficiaries had alleged in their orig-
inal complaint: “On numerous occasions, each was left with
no home health care attendant to care for them,” which
resulted in “grave consequences, such as complete immobil-
ity, hunger, thirst, muscle aches, and other physical and men-
tal distresses.” In support of these conclusions, the district
court cited testimony from class members who spoke of
“being trapped in bed unable to change position or care for
personal hygiene, abandoned for hours in a bathroom, left
without food or water . . . due to the lack or absence of health
care providers.” Based on these findings, the district court
8578                        BALL v. RODGERS
concluded that Arizona had “failed to provide the representa-
tive class members with the equal access, quality of care, and
freedom of choice to which they are entitled,” and had thus
violated § 1396a(a)(30)(A) and §§ 1396n(c)(2)(C) and
(d)(2)(C), the equal access and free choice provisions of the
Medicaid Act.9

   To remedy these violations, the district court ordered exten-
sive injunctive relief: The court ordered the state to increase
the wages of attendant care workers to a more competitive rate;10
to implement a grievance process, which would include,
among other things, a hotline that HCBS beneficiaries could
call to report a gap in “critical services”;11 and to develop con-
tingency plans so that any gaps could be filled within four
hours. The district court retained jurisdiction over the injunc-
tion so as to monitor Arizona’s compliance.
  9
     Arizona maintains on appeal that the district court never actually con-
cluded that they had violated the free choice provisions, but that is not so.
True, the district court’s discussion of the free choice provisions is consid-
erably more cursory than its discussion of the equal access provision. Still,
the final judgment rests in part on the free choice provisions. See Ball v.
Biedess, No. CIV 00-0067-TUC-EHC, slip op. at 12, ¶ 18 (D. Ariz. Aug.
13, 2004) (concluding that “[i]nstitutionalization is not a viable ‘choice’
for patients who qualify for AHCCCS programs but do not receive the ser-
vices to which they are entitled,” and citing to §§ 1396n(c)(2)(C) and
(d)(2)(C)); 

(holding that “[b]ased on the foregoing,” AHCCCS
administrators have a duty “to ensure compliance with quality care, equal
access, and freedom of choice requirements” (emphasis added)); 

(concluding that “defendants failed to provide . . . class members with the
. . . freedom of choice to which they are entitled”).
   10
      The district court did not specify a rate. Instead, it ordered the state
to consider several factors when computing wages, including “Medicare
rates, private sectors rates, costs for delivering services, any economic fac-
tors unique to Arizona, and current levels of supply and demand.”
   11
      The injunction defines “critical services” as “personal care services”
that include “bathing, toileting, dressing, feeding, transferring to or from
beds or wheelchairs, and assistance with other similar daily activities.” It
defines “gaps” in critical services as the difference between the number of
critical-service hours an HCBS recipient is scheduled to receive and the
number of hours actually delivered.
                        BALL v. RODGERS                      8579
   Shortly after the district court issued its decision, Arizona
filed a motion for a new trial or, in the alternative, a stay of
the injunction. In particular, the state argued that evidence
heard at the October 2003 bench trial was insufficient to sup-
port the injunction because it primarily concerned a state of
affairs that existed prior to August 31, 2001, the date of the
discovery deadline. As a result, Arizona contended, the evi-
dence did not reflect the state’s more recent efforts to amelio-
rate the attendant care worker problem. The district court
denied both motions, stating, first, that the injunction already
accounted for improvements achieved by the reforms and,
second, that the state itself was responsible for any lack of
evidence regarding conditions post-August 31, 2001, because
it had objected when the Medicaid beneficiaries had previ-
ously asked the district court to extend the discovery deadline.

  This appeal followed.

                               II

   Both parties have raised numerous issues on appeal, most
of which, as will become apparent, cannot be decided without
remand and further proceedings. Instead, we focus on whether
the two primary causes of action alleged could go forward
under any circumstances. If they cannot, then we would have
to dismiss the case without more ado, and the factual, proce-
dural, legal, and remedial issues on which we ultimately
remand would not matter. It thus furthers judicial efficiency
for us to decide now the logically antecedent question
whether any cause of action could go forward under § 1983
for the violations alleged in the complaint if supported by the
factual record.

   So proceeding, we first address the effect of Sanchez v.

, on the district court’s conclusion
that Arizona violated the Medicaid Act’s equal access provi-
sion. We next turn our attention to the district court’s alternate
conclusion — that the state also violated the Medicaid Act’s
8580                   BALL v. RODGERS
free choice provisions — and consider whether these statutes
provide Medicaid recipients with individual rights that can be
enforced under § 1983. This latter analysis comprises the bulk
of our opinion. After addressing these two issues, we define
the scope of our remand to the district court.

                              III

  [1] Under the Medicaid Act’s “equal access” provision,

    A State plan for medical assistance must . . . provide
    such methods and procedures relating to the utiliza-
    tion of, and the payment for, care and services avail-
    able under the plan . . . as may be necessary to
    safeguard against unnecessary utilization of such
    care and services and to assure that payments are
    consistent with efficiency, economy, and quality of
    care and are sufficient to enlist enough providers so
    that care and services are available under the plan at
    least to the extent that such care and services are
    available to the general population in the geographic
    area.

§ 1396a(a)(30)(A). During the pendency of this appeal, we
decided, in Sanchez v. Johnson, that the equal access provi-
sion does not confer individual rights enforceable under
§ 1983 upon recipients of Medicaid 

.

   [2] In the district court and in the opening brief here, Ari-
zona did not question the Medicaid beneficiaries’ allegation
that a cause of action lies under § 1983 for violation of Med-
icaid’s equal access provision. Ordinarily, that omission
would preclude consideration of the issue on appeal. See
Eberle v. City of Anaheim, 

, 818 (9th Cir. 1990)
(explaining that “the general rule” in this circuit is that an
issue is considered waived if the appellant does not properly
raise it until his reply brief) (citing Nw. Acceptance Corp. v.
Lynnwood Equip., Inc., 

, 924 (9th Cir. 1988)
                             BALL v. RODGERS                             8581
(internal quotation marks omitted). We nonetheless address
the question, under the “exception to the waiver rule . . . for
intervening changes in the law.” See Big Horn County Elec.
Co-op., Inc. v. Adams, 

, 953 (9th Cir. 2000).12 As
mandated by Sanchez, we reverse the district court’s holding
that Arizona is liable in this § 1983 action for violation of
§ 1396a(a)(30)(A).

                                     IV

   [3] Sanchez, however, does not end our inquiry, as we
must now separately consider the district court’s conclusion
that the state also violated §§ 1396n(c)(2)(C) and (d)(2)(C),
the Medicaid Act’s free choice provisions. Before we review
this substantive holding, however, we consider a predicate
question — namely, whether §§ 1396n(c)(2)(C) and (d)(2)(C)
give Medicaid recipients individual rights whose violation can
be remedied under § 1983. Although the district court
assumed so, it never addressed this question, and although it
is not jurisdictional, “and therefore may be assumed without
being decided,” we nevertheless elect to “consider it on the
merits in light of the supplemental briefing provided by the
parties.” See 

(citing Lapidus v. Hecht,

, 681 n.4 (9th Cir. 2000)); see also note 12 supra.13
  12
    Both parties had an opportunity fully to address the effect of Sanchez
on this appeal through supplemental briefs filed before argument.
   We note that the issue of waiver is relevant because the question
whether a statutory right of action exists goes to the merits of a claim, not
our jurisdiction. See Bell v. Hood, 

, 682 (1946) (“[I]t is well
settled that the failure to state a proper cause of action calls for a judgment
on the merits and not for a dismissal for want of jurisdiction.”); Price v.
City of Stockton, 

, 1108 (9th Cir. 2004) (per curiam)
(explaining that the issue of whether a private right of action exists under
§ 1983 for enforcement of a federal statutory right “is not one of jurisdic-
tion”).
   13
      Both parties addressed this question in a second round of supplemen-
tal briefing filed after argument.
8582                           BALL v. RODGERS
Otherwise, the issue could well arise on remand and its reso-
lution challenged in a later appeal.

   In doing so, we hold that the Medicaid beneficiaries enjoy
individual rights under §§ 1396n(c)(2)(C) and (d)(2)(C) that
can be enforced under § 1983. The language of the free choice
provisions is sufficiently “rights-creating,” see Gonzaga Univ.
v. Doe, 

, 287 (2002) (citing Alexander v. Sando-
val, 

, 288-89 (2001), and Cannon v. Univ. of
Chicago, 

, 690, 693 n.13 (1979)), and the rights
conferred by the two provisions are neither “vague and amor-
phous,” nor impose upon states a merely precatory obligation,
see Blessing v. Freestone, 

, 340-41 (1997). Fur-
thermore, § 1983 provides the proper avenue for relief
because Arizona has failed to show that Congress “fore-
closed” that option by adopting another, more comprehensive
enforcement scheme. See 

, 285 n.4
(citing Smith v. Robinson, 

, 1004-05, 1005 n.9
(1984)).

                                       A

  In Maine v. Thiboutot, 

, 4 (1980), the Supreme
Court concluded that the remedy afforded by § 1983 can be
used to bring actions against state actors for “violations of
federal statutory as well as constitutional law.”14 One year
  14
    Under § 1983,
       Every person who, under color of any statute, ordinance, regula-
       tion, 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. . . .
(Emphasis added.)
  The Supreme Court, in passing and with no decisional significance,
described Thiboutot as “the first time” it recognized “that § 1983 actions
                            BALL v. RODGERS                             8583
later, the Court established two limitations on the use of
§ 1983 in enforcing federal statutes enacted pursuant to Con-
gress’s Spending Clause powers. First, in Pennhurst State
School and Hospital v. Halderman the Court explained that in
cases of “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 non-
compliance but rather action by the Federal Government to
terminate funds to the State.” 

, 28 (1981) (emphasis
added). Thus, the remedy recognized in Thiboutot applies
with regard to federal statutes enacted under the Spending
Clause only when “Congress ‘speak[s] with a clear voice,’
and manifests an ‘unambiguous’ intent to confer individual
rights.” See 

(quoting 

, 28, and 28 n.21). Second, in Middlesex County
Sewerage Authority v. National Sea Clammers Ass’n, 

(1981), the Court explained that “[w]hen the remedial
devices provided in a particular Act are sufficiently compre-
hensive, they may suffice to demonstrate congressional intent
to preclude the remedy of suits under § 1983.” 

may be brought against state actors to enforce rights created by federal
statutes,” see 

(emphasis added), and we have
repeated this observation in our own subsequent cases. See, e.g., 

. We note for purposes of historical accuracy that Thibou-
tot itself did not regard its holding as novel. Instead, Thiboutot stated that
any question concerning whether § 1983 applies to violations of statutory
rights “has been resolved by our several cases suggesting, explicitly or
implicitly, that the § 1983 remedy broadly encompasses violations of fed-
eral statutory as well as constitutional law.” See 

(emphasis added). See also 

(citing, as examples of such prece-
dent, Owen v. City of Independence, 

(1980); Monell v. N.Y.
City Dep’t of Soc. Servs., 

(1978); Mitchum v. Foster, 

(1972); Lynch v. Household Fin. Corp., 

(1972);
Rosado v. Wyman, 

(1970); Greenwood v. Peacock, 

(1966); Hague v. CIO, 

(1939)), and then citing a series
of additional Supreme Court cases involving the Social Security Act as
further support for the proposition that the Court, well before Thiboutot,
had recognized that § 1983 can provide a cause of action to remedy fed-
eral statutory violations).
8584                       BALL v. RODGERS
   [4] Since Pennhurst and Sea Clammers, the Supreme Court
has developed a three-prong framework for “determining
whether a particular statutory provision gives rise to a federal
right” redressable via § 1983.15 See 

.
Specifically, courts must consider whether: (1) “Congress . . .
intended that the provision in question benefit the plaintiff”;
(2) the plaintiff has “demonstrate[d] that the right assertedly
protected by the statute is not so ‘vague and amorphous’ that
its enforcement would strain judicial competence”; and (3)
“the statute . . . unambiguously impose[s] a binding obligation
on the States,” such that “the provision giving rise to the
asserted right . . . [is] couched in mandatory, rather than pre-
catory terms.” 

(citing Wilder v. Va. Hosp. Ass’n,

, 510-11 (1990), superseded on other grounds by
statute as discussed in Alaska Dep’t of Health & Soc. Servs.
v. Ctrs. for Medicare & Medicaid Servs., 

, 941
(9th Cir. 2005), Wright v. Roanoke Redevelopment and Hous.
Auth., 

, 430, 321-32 (1987); and 

)).

   In a 2002 decision, Gonzaga University v. Doe, the Court
clarified the first of these three factors. As Gonzaga
explained:

       Section 1983 provides a remedy only for the depri-
       vation of “rights, privileges, or immunities secured
       by the Constitution and laws” of the United States.
  15
    Thibuotot, Pennhurst, Blessing, Gonzaga, and Sanchez are all cases
concerning federal statutes enacted pursuant to the Constitution’s Spend-
ing Clause. Several of these cases stress the contractual nature of the
federal-state relationship underlying such statutes. Whether the same
degree of statutory clarity in creating rights enforceable under § 1983 is
necessary outside the Spending Clause context is a question we need not
consider today, as the Medicaid Act is also a Spending Clause statute. Cf.
Golden State Transit Corp. v. Los Angeles, 

(1989) (holding
with regard to the National Labor Relations Act, a statute enacted pursuant
to the Commerce Clause rather than the Spending Clause, that a right
implied from the structure of the statute but not explicitly stated is
enforceable under § 1983).
                             BALL v. RODGERS                             8585
       Accordingly, it is rights, not the broader or vaguer
       “benefits” or “interests,” that may be enforced under
       the authority of that 

. “This being so,” the Court went on, “we fur-
ther reject the notion that our implied right of action cases are
separate and distinct from our § 1983 cases.” Instead, the
Court explained, that line of cases should “guide the determi-
nation of whether a statute confers rights enforceable under
§ 1983.” 

acknowledged, the two inqui-
ries differ, for unlike plaintiffs suing under an implied right
of action, “[p]laintiffs suing under § 1983 do not have the bur-
den of showing an intent to create a private remedy because
§ 1983 generally supplies a remedy for the vindication of
rights secured by federal statutes.” 

At the same
time, however, both inquiries “overlap in one meaningful
respect”: “in either case [a court] must first determine whether
Congress intended to create a federal right.” 

(emphasis omitted).17
  16
      In an implied private right of action case, on the other hand, “[a]
plaintiff . . . must demonstrate that Congress intended to create not only
a private right but also a private remedy.” See 

n.3
(quoting 

); see also Cort v. Ash, 

,
78 (1975) (where the Supreme Court enunciated a four-factor test to be
applied in implied right of action cases); Touche Ross & Co. v. Redington,

, 575 (1979) (modifying the Cort test). Both parties here had
the opportunity in their second round of supplemental briefs to address
whether §§ 1396n(c)(2)(C) and (d)(2)(C) provide Medicaid recipients with
an implied right of action. There is no need to separately address the
implied right of action question, however, because we hold that these stat-
utes confer individual rights enforceable under § 1983.
   17
      The conceptual distinction between a right and a right of action that
appears in Gonzaga is not unique to § 1983 law. The literature on rights,
as distinct from rights of action, is vast and varied and, as it is at least as
old as the Enlightenment, naturally predates the doctrines surrounding
judicial enforceability of rights through claims brought by private parties.
See, e.g., Ronald Dworkin, TAKING RIGHTS SERIOUSLY, xi (1977) (rights as
constraints on the state), Oliver Wendell Holmes, Jr., THE COMMON LAW,
214 (Dover, 1991) (1881) (characterizing a right as both a permission to
8586                        BALL v. RODGERS
   Under Gonzaga, evidence of such intent can be found in a
statute’s language as well as in its overarching structure. 

(holding that “where the text and structure of the stat-
ute provide no indication that Congress intends to create new
individual rights, there is no basis for a private suit”). In par-
ticular, the statute must be “ ‘phrased in terms of the persons
benefited . . . . with an unmistakable focus on the benefited
class.’ ” 

(quoting 

, 692,
n.13) (emphasis in original); see also 

(holding that
“there is no question” that the nondisclosure provisions of the
Family Educational Rights and Privacy Act (FERPA) “fail to
confer enforceable rights” because the “focus” of those provi-
sions is “two steps removed from the interests of individual
students and parents”); 

(explaining
that the “focus” of the provision should be “on individual
entitlement to benefits rather than the aggregate or system-
wide policies and practices of a regulated entity” (citing Gon-

)).

   As examples of language in federal funding statutes that
satisfies this standard, Gonzaga pointed to Title VI of the
Civil Rights Act of 1964, which provides, in part, that “[n]o
person in the United States shall . . . be subjected to discrimi-
nation,” and Title IX of the Education Amendments of 1972,
which similarly provides that “[n]o person in the United
States shall, on the basis of sex, . . . be subjected to discrimi-
nation.” 

& n.3. In Sanchez, our circuit recognized
that “our inquir[ies] should not be limited to looking for those

act but also as a right to the coercive force of the state to protect the sub-
stance of the right), Immanuel Kant, “On the Relationship of Theory to
Practice in Political Right,” in KANT’S POLITICAL WRITINGS, 73, 73 (H.
Reiss ed. 1999) (1793) (characterizing rights as restrictions on individual
freedoms used to harmonize community relations). Individuals have rights
regardless of whether or not they may personally sue in court to enforce
them, and those rights are valid with or without judicial intervention by
any party. A right of action is merely one way in which a right may be
used to constrain the state or other individuals.
                            BALL v. RODGERS                             8587
precise phrases,” although “statutory language less direct than
the individually-focused ‘No person shall . . .’ must be sup-
ported by other indicia so unambiguous that we are left with-
out any doubt that Congress intended to create an individual,
enforceable right remediable under § 

.

   In addition to the language and structure of a statute, we
have held, “[a]gency regulations . . . may be considered in
applying the three-prong Blessing test,” because “[a]s an
agency interpretation of a statute, a regulation may be relevant
in determining the scope of the right conferred by Congress.”
See Save Our Valley v. Sound Transit, 

, 943 (9th
Cir. 2003) (citing S. Camden Citizens in Action v. New Jersey
Dep’t. of Envtl. Prot., 

, 783 (3d Cir. 2001)); see
also 

. Finally, we have sometimes
turned to a statute’s legislative history to help flesh out con-
gressional intent regarding the creation of a federal right. See,
e.g., 

(looking to congressional
reports to ascertain what specific benefits legislators intended
low and moderate income residents to enjoy under the Hous-
ing and Community Development Act).

                                     B

   It is against this jurisprudential backdrop that we examine
§§ 1396n(c)(2)(C) and (d)(2)(C), the free choice provisions of
the Medicaid Act to determine whether it creates individual
rights enforceable via § 1983.18
  18
    There is no prior Ninth Circuit case addressing whether these two sub-
sections confer individual rights enforceable via § 1983. The Sixth Circuit
decided a near-identical question before both Gonzaga and Blessing. See
Wood v. Tompkins, 

, 611 (6th Cir. 1994) (holding that
§ 1396n(c)(2)(C) “give[s] rise to enforceable rights”). Wood applied the
same factors Blessing prescribes, 

but the overall thrust of its
analysis was focused on whether the overarching statutory provision —
§ 1396n(c)(2) — meets those standards. In Blessing, the Supreme Court
explained that, when determining whether a federal statute confers indi-
vidual rights, courts must engage in “methodical inquir[ies]” in which the
8588                        BALL v. RODGERS
   We begin our analysis with the language of the two stat-
utes. As explained earlier, the HCBS waiver program allows
states to be reimbursed for providing beneficiaries with nonin-
stitutional care, so long as the cost of providing this care is
less than or equal to the cost of caring for the same beneficia-
ries in more traditional long-term institutions. See infra pp.
8573-74. HCBS waivers are only available, however, if a state
provides certain “assurances” to the Secretary of Health and
Human Services. See §§ 1396n(c)(2), (d)(2) (“A waiver shall
not be granted under this subsection unless the State provides
assurances satisfactory to the Secretary that . . . .”).

   Section 1396n(c)(2)(C), which is focused on HCBS for the
disabled, codifies one such assurance. Under that provision, a
state must guarantee that,

     such individuals who are determined to be likely to
     require the level of care provided in a hospital, nurs-
     ing facility, or intermediate care facility for the men-
     tally retarded are informed of the feasible
     alternatives, if available under the waiver, at the
     choice of such individuals, to the provision of inpa-
     tient hospital services, nursing facility services, or

rights claimed are “identif[ied] with particularity.” 

;
see also 

(explaining that the “Court of Appeals erred
. . . in taking a blanket approach to determining whether Title IV-D creates
rights”). We therefore rely on Wood only to the extent that its analysis is
specifically relevant to § 1396n(c)(2)(C).
   Three district courts have more recently confronted the issue in pub-
lished opinions, with two reaching the same conclusion as Wood. See
Michelle P. ex rel. Deisenroth v. Holsinger, 

, 769
(E.D. Ky. 2005) (holding that § 1396n(c)(2)(C) confers individual rights
enforceable under § 1983, but reaching this outcome somewhat summa-
rily); Cramer v. Chiles, 

, 1351 (S.D. Fla. 1999)
(same); M.A.C. v. Betit, 

, 1307 (D. Utah 2003) (find-
ing no individual right in § 1396n(c)(2)(C) that could be enforced under
§ 1983, but conducting an even briefer analysis of the issue than those dis-
trict court decisions coming to the opposite conclusion).
                       BALL v. RODGERS                         8589
    services in an intermediate care facility for the men-
    tally retarded.

(Emphases added.) Section 1396n(d)(2)(C) contains a closely
analogous requirement, although it pertains to a different seg-
ment of the Medicaid population, the elderly. Under this pro-
vision, a state must guarantee the Secretary that,

    such individuals who are determined to be likely to
    require the level of care provided in a skilled nursing
    facility or intermediate care facility are informed of
    the feasible alternatives to the provision of skilled
    nursing facility or intermediate care facility services,
    which such individuals may choose if available
    under the waiver.

(Emphases added.)

   [5] Based on the plain and precise language used in the
statute, we conclude that Congress intended for the free
choice provisions to confer upon the plaintiffs here — Medic-
aid recipients who qualify for HCBS — private rights that can
be enforced via § 1983. First, both provisions twice use the
word “individuals,” and thus are “ ‘phrased in terms of the
persons benefited.’ ” See 

(quoting

n.13). Moreover, neither provision
uses the word “individuals” simply in passing. Instead, both
are constructed in such a way as to stress that these “individu-
als” have two explicitly identified rights — (a) the right to be
informed of alternatives to traditional, long-term institutional
care, and (b) the right to choose among those alternatives. The
statutory provisions are, in other words, “concerned with
‘whether the needs of any particular person have been satis-
fied,’ ” not solely with an aggregate “institutional policy and
practice.” 

(quoting 

).

   Second, our initial assessment of §§ 1396n(c)(2)(C) and
(d)(2)(C) is strengthened when we compare the text of these
8590                       BALL v. RODGERS
two statutory provisions with the text of other Medicaid Act
provisions that have been construed as conferring rights
enforceable under § 1983. In each of those cases, the courts’
analyses — like ours here — stressed that the statutes all pre-
scribed rights owed to “individuals” or “eligible individuals,”
explicitly identified as such. While express use of the term
“individuals” (or “persons” or similar terms) is not essential
to finding a right for § 1983 purposes, usually such use is suf-
ficient for that purpose.

   In Watson v. Weeks, for instance, this circuit joined five
federal circuits in holding that § 1396a(a)(10) satisfies the
Blessing-Gonzaga standard. See 

, 1155, 1159-
62 (9th Cir. 2006), cert. denied sub nom. Goldberg v. Watson,

(Mem.) (2006). In relevant part,
§ 1396a(a)(10) provides that “[a] State plan for medical assis-
tance must . . . provide . . . for making medical assistance
available, . . . to . . . all [eligible] individuals . . . .” Our analy-
sis in Watson was largely driven by the fact that the statute’s
“relevant phrase” assures “medical assistance available . . . to
all individuals.” 

“This language,” we held, “is
unmistakably focused on the specific individuals benefited.”

language of § 1396a(a)(10) to the statutory
language at issue in Price, where this circuit held that a fed-
eral law mandating that “[e]ach grantee shall provide for rea-
sonable benefits to any person” demonstrated “a clear intent”
on the part of Congress “to create a federal right” (Id., citing

)).

   Watson’s analysis was influenced, in part, by the Third Cir-
cuit’s decision in Sabree ex rel. Sabree v. Richman, 

(3d Cir. 2004), so we consider that decision as well. See

(relying on Sabree). In addition to
§ 1396a(a)(10), Sabree involved two other Medicaid Act pro-
visions: (1) § 1396d(a)(15), which requires a state to provide
medical assistance covering intermediate care facilities for the
mentally retarded (“ICF/MR”);19 and (2) § 1396a(a)(8), other-
  19
    In relevant part, § 1396d(a)(15) provides: “For purposes of this sub-
chapter [§§ 1396 et seq.] . . . [t]he term ‘medical assistance’ means pay-
                            BALL v. RODGERS                           8591
wise known as the Medicaid Act’s “reasonable promptness pro-
vision.”20 In each instance, Sabree concluded, the “individual
focus” of the three provisions was “unmistakable,” given that
each “enumerate[s] the entitlements available to ‘all eligible
individuals’ and none “focus on ‘the [entity] . . . regulated
rather than the individuals protected.’ ” 

(citing

) (second alteration in original).
See also S.D. ex rel. Dickson v. Hood, 

, 603 (5th
Cir. 2004) (concluding that § 1396a(a)(10) features “precisely
the sort of ‘rights-creating’ language identified in Gonzaga as
critical to demonstrating a congressional intent to establish a
new right”); 

(holding that “there is
a § 1983 cause of action arising from . . . § 1396a(a)(8), in
part, because “the statute, on its face, does intend to benefit
plaintiffs” given its use of the term “eligible individuals”).

   For analogous reasons, in Harris v. Olszewski, 

(6th Cir. 2006), the Sixth Circuit held that § 1396a(a)(23)
created individual rights enforceable under § 1983. That Med-
icaid Act provision — which, as we have noted, see supra
note 4, is also referred to as a “freedom of choice” provision
— mandates, in relevant part, that “[a] State plan for medical
assistance must . . . provide that [ ] any individual eligible for
medical assistance . . . may obtain such assistance from any
institution, agency, community pharmacy, or person” quali-
fied to perform such a 

(citing
§ 1396a(a)(23)) (emphasis added). “In giving ‘any individual
eligible for medical assistance’ a free choice over the provider
of that assistance,” Harris explained, “the statute uses the
kind of ‘individually focused terminology’ that ‘unambigu-

ment of part or all of the cost of the following care and services . . . for
individuals . . . who are [eligible:] . . . services in an [ICF/MR] . . . .”
   20
      In relevant part, § 1396a(a)(8) provides: “A State plan for medical
assistance must . . . provide that all individuals wishing to make applica-
tion for medical assistance under the plan shall have opportunity to do so,
and that such assistance shall be furnished with reasonable promptness to
all eligible individuals.” (Emphases added.)
8592                          BALL v. RODGERS
ously confer[s]’ an ‘individual entitlement’ under the law.” 

536 U.S. at 283, 287).

   [6] The upshot is that, like the language of §§ 1396a(a)(8),
1396a(a)(10), 1396a(a)(23), and 1396d(a)(15), the language
of §§ 1396n(c)(2)(C) and (d)(2)(C) satisfies the “rights-
creating” standard set forth in Gonzaga, and thus clears the
first hurdle of the Blessing framework. As in these other stat-
utes, the free choice provisions are focused on the rights owed
to HCBS-eligible Medicaid recipients, as evinced through
their repeated use of the word “individuals” and their specific
articulation of the entitlements guaranteed — in this instance,
the right to be informed of alternatives to traditional, institu-
tional care and the right to choose from among those options.

                                      C

   [7] This conclusion also follows from a comparison of
§§ 1396n(c)(2)(C) and (d)(2)(C) both to other Medicaid Act
provisions that we have held do not create individual rights
enforceable via § 1983, and to the other federal statutes simi-
larly construed in Blessing and Gonzaga. In each of those
cases, the statutes at issue differed from the free choice provi-
sions here in that they do not mention the service recipients,
or refer to them in the aggregate, or refer to them in the con-
text of describing a more general institutional policy or prac-
tice.

   In Sanchez, for example, we held that the Medicaid Act’s
equal access provision, § 1396a(a)(30)(A), does not confer
individual rights. We noted that the section’s only “reference
. . . to recipients of Medicaid services is in the aggregate, as
members of ‘the general population in the geographic area,’ 

, and further explained that “[t]he statute
speaks not of any individual’s right but of the State’s obliga-
tion to develop ‘methods and procedures’ for providing ser-
vices generally”.21 

provision that refers to the
  21
    Under 1396a(a)(30)(A),
       A State plan for medical assistance must provide . . . such meth-
                            BALL v. RODGERS                            8593
individual only in the context of describing the necessity of
developing state-wide policies and procedures,” we explained,
“does not reflect a clear Congressional intent” to create indi-
vidual rights enforceable under § 1983. Id.; see also San
Lazaro Ass’n, Inc. v. Connell, 

, 1099 (9th Cir.
2002) (holding that § 1396a(a)(5) did not give Medicaid pro-
viders a right of action under § 1983 because it is “a structural
programmatic requirement that facilitates federal oversight of
state Medicaid programs,” adding that “[t]o the extent there
is a benefit to . . . individuals, it is an indirect one”);22 

(explaining that § 1396a(a)(17), unlike
§ 1396a(a)(10), “is not framed in terms of the individuals ben-
efited” and is focused on “aggregate impact, rather than on
the benefits to individuals”).23

   Any concern for individual children and custodial parents
was found to be similarly sidelined in the “substantial compli-
ance” requirement of Title IV-D of the Social Security Act
discussed in 

. This requirement,
the Court wrote, was “designed only to guide the State in
structuring its systemwide efforts at enforcing support obliga-

    ods and procedures relating to the utilization of, and the payment
    for, care and services available under the plan . . . as may be nec-
    essary to safeguard against unnecessary utilization of such care
    and services and to assure that payments are consistent with effi-
    ciency, economy, and quality of care and are sufficient to enlist
    enough providers so that care and services are available under the
    plan at least to the extent that such care and services are avail-
    able to the general population in the geographic area.
(Emphasis added).
   22
      Under § 1396a(a)(5), a participating state must “provide for the estab-
lishment or designation of a single State agency to administer or to super-
vise the administration of the [State’s] plan.”
   23
      Under § 1396a(a)(17), a state plan for medical assistance “must . . .
include reasonable standards (which shall be comparable for all groups
. . .) for determining eligibility for and the extent of medical assistance
under the plan.”
8594                          BALL v. RODGERS
tions,” not to provide rights to individual beneficiaries. 

see also 

(explaining that the statute served as
“simply a yardstick for the Secretary [of Health and Human
Services] to measure the systemwide performance of State’s
Title IV-D program”) (emphasis in original). That much was
clear, the Court found, given that a state’s failure to “substan-
tially comply” would never lead the Secretary of Health and
Human Services to “command the State to take any particular
action or to provide any services to certain individuals.” 

Instead, such a failure would “simply . . . trigger penalty
provisions that increase the frequency of audits and reduce the
state’s [federal] grant.” 

words, although the “sub-
stantial compliance” requirement conceivably benefited indi-
vidual plaintiffs in an indirect fashion — for example, by
giving states financial incentives to try and adhere to federal
directives — this type of impact was not enough to compel
the conclusion that Congress intended for Title IV-D’s “sub-
stantial compliance” requirement to create rights enforceable
via § 1983. 

is true in Gonzaga. There the Court interpreted
FERPA’s nondisclosure provisions as only indirectly benefit-
ing individual plaintiffs. Although the statute referenced both
“students” and “parents,” 

(quoting 20
U.S.C. § 1232g(b)(1)),24 the Court concluded that neither class
of potential plaintiffs was the statute’s focal point, 

-
88. Instead, as the Court explained, the FERPA provision was
far more concerned with Congress’s directive that the Secre-
tary of Education not release federal funds to any “educa-
  24
    Under 20 U.S.C. § 1232g(b)(1),
       No funds shall be made available under any applicable program
       to any educational agency or institution which has a policy or
       practice of permitting the release of education records (or person-
       ally identifiable information contained therein . . .) of students
       without the written consent of their parents to any individual,
       agency, or organization. . . .
(Emphases added.)
                        BALL v. RODGERS                      8595
tional agency or institution” with a particular “policy or
practice” — namely, the policy or practice of releasing stu-
dents’ educational records without the consent of their par-
ents. 

see also 

(detailing the
Secretary’s role in dealing with violations of the FERPA pro-
vision). Thus, while students and parents as groups might be
considered indirect beneficiaries of the regulatory scheme, the
statute required only a general “policy” or “practice,” not
compliance in individual instances 

the
statute’s “focus is two steps removed from the interests of
individual students and parents”).

   When set alongside the statutes at issue in cases like San-
chez, Blessing, and Gonzaga, the free choice provisions
involved in this appeal stand apart in every relevant respect.
Unlike the “equal access” provision, they are not designed
simply to ensure that entire populations of Medicaid recipi-
ents receive services in the aggregate equivalent to those
received by their non-Medicaid counterparts. Instead, they
seek to guarantee that individual patients are informed of non-
institutional care options and that individual patients retain the
right to make a choice based on this information. And unlike
the plaintiffs seeking to sue under the “substantial compli-
ance” provisions discussed in Blessing and the “policy or
practice” provision in Gonzaga, the HCBS-eligible Medicaid
recipients who comprise the plaintiff-class here are not simply
cogs in a grander statutory scheme. If that were the case, then
Congress would have just enacted a barebones HCBS pro-
gram, one that would have reimbursed states for providing
alternatives to institutional care, and stopped there. There
would have been no need for Congress also to enact provi-
sions mandating that participating states keep each eligible
Medicaid recipient apprised of these non-institutional care
options and afford each the opportunity to choose how to live.

  Arizona tries to detract from the individual-oriented nature
of the free choice provisions by arguing that
§§ 1396n(c)(2)(C) and (d)(2)(C) only codify those assurances
8596                    BALL v. RODGERS
that it must make as part of its application for an HCBS
waiver. As a result, the state contends, the provisions’ objec-
tive is not to benefit HCBS-eligible Medicaid recipients
directly, but rather to give structure to a state’s HCBS pro-
gram by setting forth specific preconditions for federal fund-
ing. Arizona’s argument fails, however, because Congress has
explicitly legislated that a Medicaid Act provision cannot be
construed as unenforceable under § 1983 “merely because it
requires action under a state plan.” See 

(citing 

).

   Codified as § 1320a-2, this congressional directive is com-
monly referred to as the “Suter fix” because, through its
enactment Congress overturned an aspect of Suter v. Artist
M., 

(1992), that did indeed support the Direc-
tor’s current position. In Suter, the Supreme Court held that
a provision of the Adoption Assistance and Child Welfare
Act, §§ 620-628, did not create an enforceable right under
§ 

. The analysis in Suter emphasized the
fact that the particular provision at issue there, § 671(a)(15),
required a state to compile a sixteen-feature plan and submit
it for approval to the Secretary of Health and Human Ser-
vices, before it could “obtain federal reimbursement.” 

. The statute further dictated that the plan had
to “provide[ ] that, in each case, reasonable efforts will be
made . . . to prevent or eliminate the need for removal of the
child from his home, and . . . to make it possible for the child
to return to his home . . . .” 

671(a)(15)). Rely-
ing upon this “reasonable efforts” language, Suter concluded
that the statute did “not unambiguously confer an enforceable
right upon the Act’s beneficiaries,” because “the term ‘rea-
sonable 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 previously discussed.” 

  In direct response to Suter, Congress enacted § 1320a-2,
which provides:
                            BALL v. RODGERS                            8597
       In an action brought to enforce a provision of [the
       Social Security Chapter of the United States Code],[25]
       such provision is not to be deemed unenforceable
       because of its inclusion in a section of this chapter
       requiring a State plan or specifying the required
       contents of a State plan. This section is not intended
       to limit or expand the grounds for determining the
       availability of private actions to enforce State plan
       requirements other than by overturning any such
       grounds applied in Suter v. Artist M., . . .

(Emphasis added.)

   Since the adoption of this statute, courts around the country
have relied on it in holding some Medicaid Act rights enforce-
able under § 1983 even where the statute’s “rights-creating”
language is embedded within a requirement that a state file a
plan or that that plan contain specific features.26 The “Suter
fix” requires that we, likewise, reject the Director’s argument
that §§ 1396n(c)(2)(C) and (d)(2)(C) were enacted simply to
set forth a policy or practice upon which the receipt of federal
funds is conditioned.
  25
      Section 1396n(c)(2)(C) and (d)(2)(C) are provisions under the Social
Security Act, as Medicaid was established in 1965 by Title XIX of the
Social Security Act. See Alexander v. Choate, 

, 289 n.1
(1985).
   26
      See, e.g., 

(concluding that § 1396a(a)(10)(A),
under which a state Medicaid plan must provide specific kinds of medical
assistance, “confers rights enforceable by § 1983,” and explaining that
“[t]he requirement of action under a plan is not . . . dispositive of [that]
question,” given § 1320a-2”); Harris v. James, 

, 1003 (11th
Cir. 1997) (in case involving Medicaid Act regulations requiring state
Medicaid plans guarantee transportation for recipients to and from provid-
ers, explaining that “in light of [§ 1320a-2], it is clear that the mere fact
that an obligation is couched in a requirement that the State file a plan is
not itself sufficient grounds for finding the obligation unenforceable under
§ 1983”); see also 

-61 (relying on the court’s
analysis in S.D. regarding the “Suter fix”).
8598                     BALL v. RODGERS
    To be sure, under §§ 1396n(c)(2)(C) and (d)(2)(C), a state
is required to include certain assurances in its application for
an HCBS waiver. And the statute’s implementing regulations
make clear that a state’s failure to fulfill these assurances can
result in a termination of the HCBS waiver program. See 42
C.F.R. § 441.302 (“Unless the Medicaid agency provides the
following satisfactory assurances to [the Centers for Medicare
& Medicaid Services (“CMS”)],[27] CMS will not grant a
waiver . . . and may terminate a waiver already granted
. . . .”). Yet, the role §§ 1396n(c)(2)(C) and (d)(2)(C) play in
delineating the mandatory contents of a state HCBS plan can-
not detract from or override the otherwise clear “rights-
creating” language Congress used in enacting the free choice
provisions. To do so would be to ignore Congress’s directive
in the “Suter fix” statute that courts abjure reliance on that
consideration.

   [8] We therefore hold that §§ 1396n(c)(2)(C) and (d)(2)(C)
demonstrate an unambiguous intent by Congress to confer
rights on individuals in the plaintiff class, thus satisfying the
first prong of the Blessing framework.

                                 D

   [9] This conclusion — that, owing to their text and struc-
ture, the free choice provisions satisfy the first prong of the
Blessing test — is further corroborated by a look at the overall
context of the HCBS waiver program. Relevant surrounding
statutes, agency regulations, and legislative history all indi-
cate that Congress enacted the free choice provisions with the
health and welfare of individual Medicaid beneficiaries the
paramount consideration, thereby supporting the conclusion
that Congress intended §§ 1396n(c)(2)(C) and (d)(2)(C) to
provide Medicaid beneficiaries individual rights.
  27
    CMS is housed within the Department of Health and Human Services.
                            BALL v. RODGERS                           8599
   First, §§ 1396n(c)(2)(C) and (d)(2)(C) do not operate in a
vacuum. Instead, under §§ 1396n(c)(2) and (d)(2), a state
must make additional assurances to the Secretary of Health
and Human Services before it can receive an HCBS waiver.
At least two such assurances — like the assurance codified in
§§ 1396n(c)(2)(C) and (d)(2)(C) — focus on the needs of
individual Medicaid beneficiaries. Specifically, under
§ 1396n(c)(2)(B), a state must provide,

       with respect to individuals who —

           (i) are entitled to medical assistance for
           inpatient hospital services, nursing facility
           services, or services in an intermediate care
           facility under the State plan,

           (ii) may require such services, and

           (iii) may be eligible for such home or
           community-based services under such
           waiver,

       for an evaluation of the need for inpatient hospital
       services, nursing facility services, or services in an
       intermediate care facility for the mentally retarded
       ....

(Emphasis added.) Section 1396n(d)(2)(B) requires states to
make a similar assurance before receiving an HCBS waiver.28
  28
   Specifically, that provision mandates,
   with respect to individuals 65 years of age or older who —
        (i) are entitled to medical assistance for skilled nursing or
        intermediate care facility services under the State plan,
        (ii) may require such services, and
        (iii) may be eligible for such home or community-based ser-
        vices under such waiver,
   the State will provide for an evaluation of the need for such
   skilled nursing facility or intermediate care facility services . . .
(Emphasis added.)
8600                        BALL v. RODGERS
The provisions’ use of the word “individuals,” in such a direct
and active fashion, strengthens our initial determination that
the notion that Congress intended for at least some of the sub-
sections under §§ 1396n(c)(2) and (d)(2) to confer individual
rights, because they evince “an unmistakable focus on the
benefited class.”29 

(emphasis in
original) (quoting 

).

   Second, the relevant implementing regulations lend addi-
tional support to our conclusion. To begin, 42 C.F.R.
§ 441.302(d) is the regulation that specifically implements
§§ 1396n(c)(2)(C) and (d)(2)(C). See 42 C.F.R. § 441.300
(specifying that this regulatory subpart contains all waiver
requirements); 

. Under § 441.302(d), for
a state to receive an HCBS waiver, it must assure the Secre-
tary of Health and Human Services that

       when a recipient is determined to be likely to require
       the level of care provided in a hospital, [nursing
       facility], or [intermediate care facility for the men-
       tally retarded], the recipient or his or her legal repre-
       sentative will be —

           (1) Informed of any feasible alternatives
           available under the waiver; and

           (2) Given the choice of either institutional
           or home and community-based services.

(Emphases added.) Section 441.302(d) thus mimics the
“rights-creating” language of the statute. See Gonzaga, 536
  29
    That some of the surrounding provisions are more focused on general
policies and practices than individual Medicaid recipients does not detract
from the conclusion that Congress intended for other provisions codified
under § 1396n to confer individual rights. See 

(explaining that the rights “identif[ied] with particularity” can be enforced
under § 1983 even if other provisions of the same statute are concerned
with aggregate policy and may not be enforced under § 1983).
                            BALL v. 

. As explained earlier, although an agency regula-
tion cannot confer an individual right enforceable under
§ 1983, it may still “be relevant in determining the scope of
the right conferred by Congress” and “Congress’s intent.” See
Save Our 

(citing S. Camden Citizens
in 

); 

(stat-
ing that when “[r]ead together” with Section 104(k) of the
Housing and Community Development Act, the correspond-
ing agency regulations “confirm Congress’s intent not only to
impose a plan certification requirement on grantees, but also
to confer upon persons displaced by redevelopment activities
an enforceable entitlement to the specific benefits of such
plans”).

   Moreover, that some of the regulations neighboring
§ 441.302(d) are couched in similar, individual-oriented lan-
guage underscores the depth of Congress’s intention. See,
e.g., § 441.302(c)(1) (explaining that a state agency must
guarantee that it will conduct an initial evaluation of individ-
ual recipients’ medical needs); 

(explaining
that a state must guarantee that it will conduct “[p]eriodic
reevaluations . . . . at least annually, of each recipient receiv-
ing [HCBS] to determine if the recipient continues to need the
level of care provided and would, but for the provision of
waiver services, otherwise be institutionalized”).

   Finally, the legislative history of §§ 1396n(c)(2)(C) and
(d)(2)(C) highlights the fact that Congress’s main concern
when enacting the free choice provisions was the health and
welfare of individual Medicaid recipients, not any potential
cost-savings that might result from a shift away from institu-
tionalization. This is a critical point. True, at least some of the
subsections under §§ 1396n(c)(2) and (d)(2) “were obviously
designed to save the government money.” See 

(citing § 1396n(c)(2)(D) as “providing that home
care costs may not exceed the cost of institutional care”).30
  30
    Specifically, under § 1396n(c)(2)(D), a state must guarantee that
       under such waiver the average per capita expenditure estimated
8602                      BALL v. RODGERS
There is also a statutory provision mandating fiscal responsi-
bility. See §§ 1396n(c)(2)(A), (d)(2)(A) (requiring that states
guarantee that “necessary safeguards . . . have been taken . . .
to assure financial accountability for funds expended with
respect to [HCBS]”). Yet, although Congress was quite aware
that HCBS might “have a long range and significant impact
on the size of states’ Medicaid budgets,” legislators were ada-
mant that “[t]he determination of which long-term care
options are feasible in a particular instance should be based on
an individual’s needs, as determined by an evaluation, and
not short-term cost-savings.” H.R. REP. 97-208, at 966 (1981)
(Conf. Rep.), as reprinted in 1981 U.S.C.C.A.N. 1010, 1328
(emphasis added); see also 

through the
adoption of the HCBS waiver program, “the integrity of
patient choice should be preserved”); S. REP. 97-139, at 747-
48 (1981) (acknowledging that “certain cost savings may
result,” but stressing that “[a] waiver cannot be granted unless
the state provides assurances satisfactory to the Secretary that
necessary safeguards have been taken to protect the health
and welfare of any of the recipients of such services” (empha-
sis added)).

   The result of our examination of the overall context of the
HCBS waiver program, including the relevant statutes, imple-
menting regulations, and legislative history, underscores our
initial text-based view that Congress consciously used “ex-
plicit rights-creating terms” when enacting Medicaid Act’s
free choice provisions. See 

-84. In
light of this additional, corroborative analysis, we reiterate our
earlier holding — namely, that Congress intended
§§ 1396n(c)(2)(C) and (d)(2)(C) to “create a federal right,”

   by the State in any fiscal year for medical assistance provided
   with respect to such individuals does not exceed 100 percent of
   the average per capita expenditure that the State reasonably esti-
   mates would have been made in that fiscal year for expenditures
   under the State plan for such individuals if the waiver had not
   been granted.
                       BALL v. RODGERS                     8603
and that the two provisions thus satisfy the first prong of the
Blessing framework. 

(emphasis omitted).

                               E

  Our analysis cannot, however, end there. We must consider
whether §§ 1396n(c)(2)(C) and (d)(2)(C) also satisfy the
Blessing framework’s second and third prongs.

   [10] Under the framework’s second factor, a plaintiff must
“demonstrate that the right assertedly protected by the statute
is not so ‘vague and amorphous’ that its enforcement would
strain judicial 

. The “free
choice” provisions before us easily satisfy this standard.
Those provisions set forth explicit rights — again, the right to
be informed of alternatives to institutional care and the right
to choose from among those alternatives. A court can readily
determine whether a state is fulfilling these statutory obliga-
tions by looking to sources such as a state’s Medicaid plan,
agency records and documents, and the testimony of Medic-
aid recipients and providers. Cf. 

(holding that § 1396a(a)(23), the “freedom of choice” provi-
sion, satisfies the second Blessing prong, because “[w]hether
a state plan provides an individual with the choice specified
in the provision is likely to be readily apparent”).

   This is not a situation, in other words, like that presented
in Sanchez. There, we concluded that “[t]he language of [the
equal access provision] [was] . . . ill-suited to judicial reme-
dy,” because the “interpretation and balancing of the statute’s
indeterminate and competing goals would involve making
policy decisions for which [a] court has little expertise and
even less 

. Although
§ 1396a(a)(30)(A) would require a court to account for
numerous, largely unquantifiable variables — “efficiency,
economy, and quality of care” — the rights at issue here are
far more straightforward. We are confident that a court could
capably ensure the enforcement of these two statutes, and
8604                    BALL v. RODGERS
therefore conclude that §§ 1396n(c)(2)(C) and (d)(2)(C) sat-
isfy the second prong of the Blessing framework.

   Arizona contends otherwise, maintaining that the rights
conferred by §§ 1396n(c)(2)(C) and (d)(2)(C) are, indeed, too
“vague and amorphous” for a court to administer effectively.
As construed by the Medicaid beneficiaries, the state sug-
gests, the free choice provisions would require a court to
assess the “particular quality, quantity, consistency, or fre-
quency” of a state’s HCBS waiver program. As a result, it
argues, the requirements established by §§ 1396n(c)(2)(C)
and (d)(2)(C) are no more readily ascertainable than those
traceable to § 1396a(a)(30)(A).

   This argument, however, is inapposite to our present
inquiry. That rights enforceable under § 1983 cannot be
excessively vague and amorphous may ultimately have an
impact on any merits analysis under §§ 1396n(c)(2)(C) and
(d)(2)(C). If the Medicaid beneficiaries indeed seek to inter-
pret their rights under the “free choice” provisions so expan-
sively that they truly become “vague and amorphous,” their
cause of action may fail on the merits. For, in that event, the
Medicaid beneficiaries will not be able to show that Arizona
violated their rights enforceable under § 1983. The cause of
action should not fail at the threshold, however, on the
grounds that on any interpretation of the “free choice” provi-
sions, the individual rights established are too “vague and
amorphous” for a court to enforce.

   In that same vein, Arizona points to a recent Tenth Circuit
decision, in which that court wrote — in language that the
state recognizes is dicta — that although Colorado’s HCBS
waiver application “suggests that a developmentally disabled
person will have a choice between an ICF/MR and HCBS, it
does not assign to the State, or any other party, the responsi-
bility to ensure that such facilities are in fact available.” See
Mandy R. ex rel. Mr. and Mrs. R. v. Owens, 

,
1145 (10th Cir. 2006) (so stating in the context of deciding
                       BALL v. RODGERS                     8605
whether the state violated §§ 1396a(a)(8) and (a)(10)(B)(i)).
Although Arizona appears to rely on this statement from
Mandy R. to support its argument that the “free choice” provi-
sions confer no individual rights enforceable under § 1983,
the statement — at best — speaks to what constitutes a sub-
stantive violation of §§ 1396n(c)(2)(C) and (d)(2)(C), an issue
we do not address.

   [11] The final Blessing factor — whether “the statute . . .
unambiguously impose[s] a binding obligation on the 

— is perhaps most obviously met by the free
choice provisions. Under §§ 1396n(c)(2) and (d)(2), a state
must make certain assurances to the Secretary of Health and
Human Services to obtain an HCBS waiver. See, e.g.,
§ 1396n(c)(2) (“A waiver shall not be granted . . . unless the
State provides assurances . . . that . . . .”) (emphasis added).
The Director argues that these assurances are only precatory,
given the overall optional nature of the HCBS waiver pro-
gram. Nothing in the Medicaid Act, after all, requires a state
to make non-institutional care options available to its recipi-
ents. The fact remains, however, that once a state does elect
a HCBS waiver, it is bound to provide its HCBS-eligible
patient population with specific rights and services, among
them those included in §§ 1396n(c)(2)(C) and (D)(2)(C). The
third prong of the Blessing framework is thus satisfied.

                               F

   [12] Having satisfied all three prongs of the Blessing
framework, the Medicaid beneficiaries’ rights under
§§ 1396n(c)(2)(C) and (d)(2)(C) are “presumptively enforce-
able by § 1983,” subject only to a showing by the state that
“Congress ‘specifically foreclosed a remedy under § 1983.’ ”

& n.4 (citing Smith v. Robinson,

, 1004-05, 1005 n.9 (1984)). A state can meet
this burden by “demonstrat[ing] that Congress shut the door
to private enforcement either expressly, through ‘specific evi-
dence from the statute itself,’ . . . or ‘impliedly, by creating
8606                    BALL v. RODGERS
a comprehensive enforcement scheme that is incompatible
with individual enforcement under § 1983.’ ” 

n.4
(citing 

; 

;
and Sea 

); see also City of Rancho
Palos Verdes v. Abrams, 

, 121-22 (2005)
(describing the few instances in which the Court has found
§ 1983 not available “to remedy violations of federal statutory
rights,” because it found “the existence of more restrictive
remedies . . . in the violated statute itself”).

   [13] Arizona has not attempted to rebut the presumption
that     the     Medicaid       beneficiaries’    rights   under
§§ 1396n(c)(2)(C) and (d)(2)(C) are enforceable via § 1983.
And with good reason. In Blessing, the Supreme Court made
clear that the power of “the Secretary of Health and Human
Services . . . to reject state Medicaid plans or to withhold fed-
eral funding to States whose plans did not comply with fed-
eral law” cannot foreclose a § 1983 remedy. 

(citing 

, 523); see also 

(holding that the fact “[t]hat the Federal Govern-
ment may withhold federal funds to non-complying States is
not inconsistent with private enforcement,” and citing 

-22, for the proposition that “although the
Medicaid Act ‘authorizes the Secretary to . . . curtail federal
funds to States whose plans are not in compliance with the
Act, . . . [t]his administrative scheme cannot be considered
sufficiently comprehensive to demonstrate a congressional
intent to withdraw the private remedy of § 1983”). As no rem-
edy for the enforcement of §§ 1396n(c)(2)(C) and (d)(2)(C),
other than withholding federal funds, has been brought to our
attention by the parties, we cannot foreclose a § 1983 remedy.

                            ****

  [14] In light of the foregoing analysis, we conclude that the
Medicaid beneficiaries enjoy “unambiguously conferred”
individual rights under §§ 1396n(c)(2)(C) and (d)(2)(C) and
                            BALL v. RODGERS                            8607
that those rights can be properly enforced through a § 1983
cause of action.

                                     V

   [15] Having decided that §§ 1396n(c)(2)(C) and (d)(2)(C)
provide a right of action under which Medicaid beneficiaries
can protect their individual rights, we now remand the matter
to the district court so that it can: (1) if appropriate, make a
factual determination as to which federal statutes apply in this
case;31 (2) have the opportunity to decide whether there are
other legal bases upon which to grant the Medicaid beneficia-
ries relief; and (3) amend the terms of the current injunction
as needed.

   (1) In a supplemental brief filed after argument, Arizona
for the first time contends that the Medicaid beneficiaries’ suit
cannot go forward under the Medicaid Act’s free choice pro-
visions because, as a factual matter, Arizona’s waiver pro-
gram, permitting home- and community-based care, was
actually authorized under a different federal statute — 42
U.S.C. § 1315 of the Social Security Act. As a result, Arizona
maintains, it is not bound to comply with any provision of
§ 1396n, including the free choice requirements.32 In
response, the Medicaid beneficiaries argue that even if § 1315
serves as the statutory basis for Arizona’s HCBS waiver pro-
gram, the state is still bound to comply with various provi-
sions of the Medicaid Act, including §§ 1396n(c)(2)(C) and
(d)(2)(C). In the alternative, the Medicaid beneficiaries argue
that the Director long ago waived the opportunity to argue
  31
      This question is separate and apart from the district court’s findings
that Arizona violated the free choice provisions. Here, we simply ask the
district court to make a factual determination, if appropriate, regarding the
statutory basis for Arizona’s waiver program to apply in this case.
   32
      Section 1396n does not include the “equal access” provision, which
is codified under § 1396a. That is why, presumably, Arizona never pro-
tested that it is not covered by the “equal access” provision.
8608                    BALL v. RODGERS
that §§ 1396n(c)(2)(C) and (d)(2)(C) are not the relevant stat-
utes, as the case proceeded through seven years of litigation,
including a trial that covered the free choice provisions,
before the contention was raised. Both parties have attempted
to support their arguments by submitting, along with their
supplemental briefs, numerous documents that are not part of
the district court record. We cannot consider these documents,
and so cannot possibly decide the late-blooming dispute over
whether the § 1396n requirements apply to Arizona. See
Lowry v. Barnhart, 

, 1024 (9th Cir. 2002)
(explaining that appellate courts generally will consider only
those facts and documents that have been preserved in the dis-
trict court record).

   On remand, the district court should consider, first,
whether, the state is entitled at this late juncture to oppose the
free choice cause of action on the ground that § 1396n does
not apply to Arizona. The district court is better positioned
than we are to make that determination, as it is fully familiar
with the course of this litigation.

   Second, if it concludes that the issue may be raised, the dis-
trict court must make a factual determination regarding
whether Arizona’s HCBS waiver program is, in fact, autho-
rized under § 1315. Third, even if § 1315 proves to be the
program’s statutory basis, the district court must separately
determine whether Arizona is nevertheless bound to comply
with §§ 1396n(c)(2)(C) and/or (d)(2)(C) as a condition of
receiving federal funds under § 1315, as the Medicaid benefi-
ciaries maintain.

   (2) On remand, the district court should also revisit the
Medicaid beneficiaries’ ADA and Rehabilitation Act claims,
the two claims that survived summary judgment and were liti-
gated during the bench trial but which the district court did
not address in its final judgment. The district court should
                            BALL v. RODGERS                             8609
determine whether Arizona violated those statutes in its
administration of the HCBS program.33

   The district court need not, however, revisit the Medicaid
beneficiaries’ claims under § 1396a(a)(8), the Medicaid Act’s
“reasonable promptness” provision, or 42 C.F.R.
§ 435.930(b), a Medicaid Act regulation mandating that Med-
icaid, and emergency care, be furnished continuously and
without administrative delays, unless a recipient becomes
ineligible. The district court granted Arizona’s cross-motion
for summary judgment on these claims, and the Medicaid
beneficiaries never appealed that decision. Although they now
ask us to affirm the district court’s judgment on these
grounds, arguing that we have “the power to affirm the judg-
ment below on any basis found in the record,” we may not do
so, as the issues were not properly raised on appeal.

   The Medicaid beneficiaries correctly assert that “arguments
that support the judgment as entered can be made without a
cross-appeal,” although “a cross-appeal is required to support
modification of the judgment.” See Engleson v. Burlington N.
R.R. Co., 

, 1041 (9th Cir. 1992) (emphasis
added) (quoting C. WRIGHT, A. MILLER, AND E. COPPER, 15A
FEDERAL PRACTICE AND PROCEDURE § 3904, 195-96 (1992)
(internal quotation marks omitted)). Here we could not, for
two reasons, affirm the judgment as entered on the ground
that there was a “reasonable promptness” or gap in service
violation.
  33
    The Medicaid beneficiaries have asked us to affirm the district court’s
judgment on either of these grounds as part of the current appeal and
based on the record now before us. We decline to do so. We must remand
the matter to the district court for a resolution of the question whether Ari-
zona is bound to comply with the free choice provisions. The district
court will then have the opportunity to make the requisite findings of fact
and conclusions of law related to the ADA and/or the Rehabilitation Act
claims. See FED. R. CIV. PRO. 52.
8610                    BALL v. RODGERS
   First, were we to affirm the district court on the grounds on
which Arizona was granted summary judgment, the terms of
the injunction would certainly have to be modified, as the
injunction was tailored to remedy a violation of wholly differ-
ent statutes — § 1396a(a)(30)(A) and §§ 1396n(c)(2)(C) and
1396n(d)(2)(C). See Lewis v. Casey, 

, 360 (1996)
(“The scope of injunctive relief is dictated by the extent of the
violation established” (internal quotation marks omitted);
Gomez v. Vernon, 

, 1130 (9th Cir. 2001)
(explaining that the court’s “exercise of equitable discretion”
in crafting an injunction must “heel[ ] close to the identified
violation”) (quoting Gilmore v. People of the State of Califor-
nia, 

, 1005 (9th Cir. 2000)). As we could not
simply affirm the judgment on the grounds plaintiff suggests,
we may not reach these issues in the absence of a cross-
appeal.

   Moreover, even if we assume that the Medicaid beneficia-
ries presented sufficient evidence during the bench trial to
support a judgment that Arizona violated § 1396a(a)(8) and
42 C.F.R. § 435.930(b)—which there is no reason they would
have, as the issues had been finally resolved against them—
the state never had reason to defend against these claims at
the bench trial, given its victory at the summary-judgment
stage. It would be inequitable to affirm the district court on
the basis of an inapposite record. The most we could do as to
these causes of action, consequently, would be to reverse the
denial of summary judgment to Arizona, not affirm the grant
of judgment after trial to the Medicaid beneficiaries. The
Medicaid beneficiaries have not asked for such limited relief,
nor could that relief support the “judgment as entered.” Engle-

. For this reason as well, we cannot dis-
turb the grant of summary judgment to Arizona in the absence
of a cross-appeal.

   (3) On remand, and assuming that the district court holds
that Arizona violated the free choice provisions, the ADA, or
the Rehabilitation Act, the district court will have to modify
                             BALL v. RODGERS                             8611
the terms of its injunction pursuant to a number of different
considerations. Primarily, the injunction will have to be re-
designed to reflect the fact that Arizona can no longer be held
liable under § 1396a(a)(30)(A). Because the injunction
remains in this state of flux, we do not address at this time the
state’s argument that the injunctive relief originally ordered
by the district court was improper because it failed to account
for more recent reforms undertaken by the state to improve its
HCBS program. Any such review would be premature.34

                                     VI

   In conclusion, we reverse the district court’s decision that
Arizona violated § 1396a(a)(30)(A), the Medicaid Act’s equal
access provision, pursuant to our circuit’s decision in Sanchez
v. 

. We hold that §§ 1396n(c)(2)(C)
and (d)(2)(C), the Medicaid Act’s free choice provisions, con-
fer upon the Medicaid beneficiaries individual rights that can
be enforced under § 1983. We remand, however, to the dis-
trict court to determine, if appropriate, which statutes and reg-
ulations apply to the program. On remand, the district court
must address whether Arizona’s contention that it is not
bound to comply with the free choice provisions has been
waived; if not, it must decide that issue; make any appropriate
findings of fact and conclusions of law with respect to the
Medicaid beneficiaries’ ADA and Rehabilitation Act claims;
and modify the terms of its injunction, if any, to accord with
any statutory or regulatory violations found on remand.
  34
     We briefly address one last aspect of this matter — namely, the dis-
trict court’s decision to deny the state’s motion for a new trial. We review
for abuse of discretion. See De Saracho v. Custom Food Mach., Inc., 

, 880 (9th Cir. 2000). The district court decided that its injunction
already accounted for the improvements in the state Medicaid program
that Arizona wished to bring to its attention. Further, it found that the state
was itself responsible for any evidentiary gaps due to Arizona’s opposition
to extending the discovery deadline. Denial of the motion for a new trial
on these grounds was not an abuse of discretion.
8612                  BALL v. RODGERS
 REVERSED IN PART; AFFIRMED IN PART;
REMANDED.

  The parties shall bear equal shares of the costs on appeal.