Bryson v. Shumway, et al.

2001 DNH 194

• Court: District Court, D. New Hampshire
• Decided: October 23, 2001
• Docket: CV-99-558-M
• Status: Published

Opinion

Bryson v . Shumway, et a l . CV-99-558-M 10/23/01 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Bonnie Bryson and Claire Shepardson, on behalf of themselves and all others similarly situated, Plaintiffs

v. Civil N o . 99-558-M Class Action Opinion N o . 2001 DNH 194 Donald Shumway, in his capacity as Commissioner of the State of New Hampshire Department of Health and Human Services; and Susan Fox, in her capacity as Director of the State of New Hampshire Division of Developmental Services, Defendants

O R D E R

Plaintiffs in this action represent themselves and a class

of persons who: (1) have acquired brain disorders (ABDs); (2)

have requested home and community-based care (“HCBC”) services

from the State of New Hampshire’s Medicaid program; (3) are

eligible for services funded by Medicaid; (4) are on a waiting

list for HCBC services; and (5) have been, or are likely to b e , placed in nursing homes or other institutions due to a lack of

available HCBC services. Defendant Susan Fox is Director of the

Division of Developmental Services (“DDS”), a unit of the New

Hampshire Department of Health and Human Services (“HHS”), of

which Defendant Shumway is Commissioner. DDS, under the

oversight of HHS, administers the portion of the State’s Medicaid

program that provides reimbursement for services to persons, such

as the class of plaintiffs, who have ABDs.

In this seven-count action for declaratory and injunctive

relief, brought under 42 U.S.C. § 1983, plaintiffs seek to

vindicate the right of the class they represent under: (1) 42

U.S.C. § 1396a et seq. (the Medicaid Act) and associated

regulations; (2) 42 U.S.C. § 12132 et seq. (the Americans with

Disabilities Act or “ADA”); (3) 29 U.S.C. § 794 (section 504 of

the Rehabilitation Act of 1973 or “section 504”); and (4) the due

process clause of the United States Constitution. Counts I , I I ,

and VII allege violations of plaintiffs’ rights under the

Medicaid Act. Counts III and IV are based upon the ADA and

2 section 504. Counts V and VI allege violations of plaintiffs’

due process rights. In their prayers for relief, plaintiffs ask

the court to order defendants t o : (1) submit a plan for providing

them, expeditiously, with ABD/HCBC services; (2) cease and desist

from providing ABD/HCBC services in an untimely manner; (3) cease

and desist from policies and practices that: (a) deny them

services based upon the severity of their needs, and (b) provide

them with inferior institutional services rather than more

effective HCBC services; (4) cease and desist from providing them

with services that curtail their freedom of movement and right to

control their daily lives; (5) administer the ABD/HCBC program in

accordance with reasonable written standards; and (6) provide

class members with written notices of all decisions regarding

their applications for the ABD/HCBC program that: (a) state the

legal and factual basis for any such decision, and (b) inform

them of their right to a hearing.

Before the court are: (1) defendants’ motion for summary

judgment on all counts (document n o . 1 9 ) , to which plaintiffs

3 object; and (2) plaintiffs’ motion for partial summary judgment

on Counts I I , V I , and V I I (document n o . 2 0 ) , to which defendants

object. For the reasons stated below: (1) defendants’ motion for

summary judgment is granted as to Counts I and V , denied as to

Counts I I , I I I , I V and V I I , and moot as to Count V I ; and (2)

plaintiffs’ motion for summary judgment is granted as to Count

V I I , denied as to Count I I , and moot as to Count V I .

Accordingly, this case shall proceed to trial on Counts I I , I I I ,

and I V .

Standard of Review

Summary judgment is appropriate when the record reveals “no

genuine issue as to any material fact and . . . the moving party

is entitled to a judgment as a matter of law.” FED. R . CIV. P .

56(c). “To determine whether these criteria have been met, a

court must pierce the boilerplate of the pleadings and carefully

review the parties’ submissions to ascertain whether they reveal

a trialworthy issue as to any material fact.” Perez v . Volvo Car

Corp., 247 F.3d 303, 310 (1st Cir. 2001) (citing Grant’s Dairy-

4 Me., LLC v . Comm’r of M e . Dep’t of Agric., Food & Rural Res., 232

F.3d 8 , 14 (1st Cir. 2000)). A material fact is “a contested

fact [that] has the potential to change the outcome of the suit

under the governing law if the dispute over it is resolved

favorably to the nonmovant.” Navarro v . Pfizer Corp., 261 F.3d

9 0 , 93-94 (1st Cir. 2001) (citing McCarthy v . Northwest Airlines,

Inc., 56 F.3d 313, 315 (1st Cir. 1995)). In defending against a

motion for summary judgment, “[t]he non-movant may not rely on

allegations in its pleadings, but must set forth specific facts

indicating a genuine issue for trial.” Geffon v . Micrion Corp.,

249 F.3d 2 9 , 34 (1st Cir. 2001) (citing Lucia v . Prospect St.

High Income Portfolio, Inc., 36 F.3d 170, 174 (1st Cir. 1994)).

When ruling upon a party’s motion for summary judgment, the court

must “scrutinize the summary judgment record ‘in the light most

hospitable to the party opposing summary judgment, indulging all

reasonable inferences in that party’s favor.’” Navarro, 261 F.3d

at 94 (quoting Griggs-Ryan v . Smith, 904 F.2d 112, 115 (1st Cir.

1990)).

5 Factual Background

The plaintiff class consists of persons with acquired brain

disorders who qualify for Medicaid assistance. Acquired brain

disorders are disruptions in brain function that are neither

congenital nor caused by birth trauma, manifest prior to age

sixty, and present “a severe and life-long disabling condition

which significantly impairs a person’s ability to function in

society.” N . H . CODE ADMIN. R . He-P 522.02(a). Key symptoms

include a significant decline in cognitive functioning and/or a

deterioration of behavior. Id.

The federal Medicaid program, as administered in New

Hampshire by H H S , provides reimbursement for a variety of

programs and services for persons with ABDs. Plaintiffs in this

case are persons with ABDs who currently receive, or who are

likely to receive, Medicaid funded services in nursing homes,

psychiatric facilities, rehabilitation facilities, or other

institutions. In addition to services provided in institutional

settings, D D S also administers a program of home and community-

6 based services for persons with ABDs. Many aspects of this

program are actually carried out, under the direction of DDS, by

a group of “area agencies.” Plaintiffs represent the class of

persons who wish to receive ABD/HCBC services rather than

institutional care and who are currently on a waiting list for

those services.

The ABD/HCBC program is operated under a waiver granted to

HHS/DDS by the Center for Medicare and Medicaid Services (“CMS”)

(formerly the Health Care Financing Administration or HCFA),

pursuant to the provisions of 42 U.S.C. § 1396n(c).

Waivers are intended to provide the flexibility needed to enable States to try new or different approaches to the efficient and cost-effective delivery of health care services, or to adapt their programs to the special needs of particular areas or groups of recipients. Waivers allow exceptions to State plan requirements and permit a State to implement innovative programs or activities on a time-limited basis, and subject to specific safeguards for the protection of recipients and the program.

42 C.F.R. § 230.20. Among other things, the waiver program: (1)

allows a state to “include as [reimbursable] ‘medical assistance’

7 . . . payment for part or all of the cost of home or community-

based services . . .,” 42 U.S.C. § 1396n(c)(1); and (2) waives

certain requirements pertaining to statewideness, comparability,

and income and resources that normally apply to state Medicaid

programs, 42 U.S.C. § 1396n(c)(3). The waiver statute also

requires that

the State provide[] assurances satisfactory to the Secretary that –

(D) under such waiver the average per capita expenditure estimated by the State in any fiscal year for medical assistance provided with respect to such individuals [as are served under the waiver program] does not exceed 100 percent of the average per capita expenditure that the State reasonably estimates would have been made in that fiscal year for expenditures under the State plan for such individuals if the waiver had not been granted.

42 U.S.C. § 1396n(c)(2)(D). To participate in the waiver

program, a state applies to the Secretary of Health and Human

Services for a certain number of waiver “slots,” see 42 C.F.R. §

430.20(e), and “[t]he Secretary shall not limit to fewer than 200

8 the number of individuals in the State who may receive home and

community-based services under a waiver under this subsection,”

42 U.S.C. § 1396n(c)(10).

Defendants first applied for an ABD/HCBC waiver in 1993, to

implement a three-year program that would serve fifteen, twenty-

six, and thirty-seven individuals in its first, second, and third

years. (Fox Aff., Ex. A.) After two amendments, New Hampshire

now has a waiver program, up for renewal at the end of October

2001, that provided seventy-four slots for the year ending

October 3 1 , 1997, seventy-seven slots for the year ending October

3 1 , 1998, eighty-one slots for the year ending October 3 1 , 1999,

eighty-five slots for the year ending October 3 1 , 2000, and

eighty-nine slots in the year ending October 3 1 , 2001. (Fox

Aff., Ex. B.) The waiver agreement between defendants and CMS

(formerly HCFA) provides, inter alia:

14. The State will not refuse to offer home and community-based services to any recipient for whom it can reasonably be expected that the cost of home or community-based services furnished to that

9 recipient would exceed the cost of a level of care referred to in item 2 of this request.

New Hampshire offers community-based services on the basis that in the aggregate, and not on an individual basis, that community-based services will not cost more than SNF [Nursing Facility with Skilled Nursing Care or Specialized Rehabilitative Services] services.

15. The Medicaid agency provides the following assurances to HCFA:

d. The agency will provide an opportunity for a fair hearing, under 42 CFR Part 431, subpart E , to beneficiaries who are not given the choice of home or community-based services as an alternative to the SNF care indicated in item 2 of this request, or who are denied the service(s) of their choice or the provider(s) of their choice.

e. The average per capita expenditures under the waiver will not exceed 100 percent of the average per capita expenditures for the level(s) of care indicated in item 2 of this request under the State plan that would have been made in that fiscal year had the waiver not been granted.

f. The agency’s actual total expenditures for home and community-based and other Medicaid services provided to individuals under the waiver will not, in any year of the waiver period, exceed the amount that would be incurred by Medicaid for these individuals in

10 the setting(s) indicated in item 2 of this request, in the absence of the waiver.

(Fox Aff., Ex. A.)

It is undisputed that, at any given time, some of the

approved waiver slots have not been occupied. Currently, eighty-

one of the eighty-nine approved slots are filled. For the fiscal

year ending in October 2000, eighty-three of eighty-five slots

were filled. (Fox Dep. ¶ 6.) During the three years before

that, the figures appear to show, respectively, that: seventy-

nine of eighty-one slots, seventy-six of seventy-seven slots, and

sixty-eight of seventy-four slots were occupied. (Mem. in Supp.

of Pls.’ Mot. Partial Summ. J. at 7 . ) 1 There are, at present –

as there have been throughout the history of the ABD/HCBC waiver

1 While the parties seem to disagree, very slightly, as to the number of waiver slots that have been filled over the last five years, this particular fact is not critical to any part of the court’s resolution of the questions before it and, as a result, the parties’ slight disagreement is not a factual dispute that would preclude summary judgment. See Navarro, 261 F.3d at 93-94.

11 program – more persons eligible for the program than there are

slots available under the waiver. (Fox Aff., Ex. C . )

According to H H S regulations, persons who are interested in

obtaining A B D / H C B C waiver services apply to their local area

agency. N . H . CODE ADMIN. R . He-M 522.04(b). The area agency, in

turn, has twenty-one days to determine whether an applicant is

eligible for the program, He-M 522.05(d), and “[u]pon

determination of eligibility, an area agency shall convey to each

applicant or guardian and the division a written decision on

eligibility,” He-M 522.05(k). However, if an applicant is

determined eligible for A B D / H C B C waiver services which are not

available at the time eligibility is determined, the following

regulations apply:

(a) If the recommendations are for services which are needed currently but are unavailable or will be needed sometime within one year, an area agency intake worker or other staff person shall place the individual’s name on a waiting list.

12 (c) Individuals on waiting lists shall receive services when funding becomes available based on the following 2 levels of priority:

(1) The first priority shall be any individual whose needs exist currently and who is at imminent risk of substantial physical or emotional harm or significant regression or who is inflicting or is at significant risk of inflicting substantial physical or emotional harm toward others, such a s :

a. An individual living with a caregiver who might no longer be able to continue in that capacity;

b . An individual who is or is about to become homeless;

c. An individual whose medical or behavioral needs are creating significant stress on the family or in the current living situation;

d. An individual at risk of involvement with the criminal justice system;

e . An individual living in unsafe, unhealthy circumstances;

f. An individual ready to be discharged from a psychiatric hospital, acute care facility, rehabilitation facility, nursing facility or jail who would be unable to live in the community without services;

g. Any other individual who is determined by area agency staff to have similar service needs; and

13 (2) The second priority shall be any individual whose needs exist currently and which do not place him or her at imminent risk of substantial physical or emotional harm or significant regression, such a s :

a. An individual whose current placement is not the least restrictive;

b . An individual whose current type or level of services does not provide the assistance and environment to meet all of his or her needs;

c. An individual wishing to move from one region to another whose division-funded services are inadequate to cover the costs of services in the new region;

d. An individual whose family resides in a region while the individual resides out of state and who is not currently receiving services from an area agency; or

e . Any other individual who is determined by area agency staff to have similar service needs.

(d) The purchase, provision, or arrangement of services for all individuals on the waiting list shall be prioritized on the basis of the individuals’ needs regardless of the dates of application.

(f) For an individual on a waiting list or projected service need list, the area agency shall:

14 (1) Inform the individual and guardian of the individual’s status as determined under He-M 522.11 (c) and (e) above and notify them if any change in status occurs;

(3) Interview the individual or guardian in person or by telephone to determine if there has been a change in the service needs of the individual on a waiting list:

a. At least quarterly for those individuals cited in He-M 522.11 (c) ( 1 ) ; or

b . At least every 6 months for those individuals cited in He-M 522.11 (c) ( 2 ) .

N . H . CODE ADMIN. R . He-M 522.11.

A person deemed eligible for A B D / H C B C services and placed on

the waiting list is notified of his or her placement on the

waiting list, but is not given the opportunity to request a

hearing to contest either the decision to be placed on the

waiting list rather than being provided with services

immediately, or the assignment of a priority level. Some, but

not all applicants placed on the waiting list are informed about

15 the mechanics of the waiting list.2 As of June 2001, there were

forty-eight persons on the waiting list. (Fox Aff. ¶ 19.) At

that point, the shortest length of time that a person had been on

the waiting list was five months, while the longest was seven

years. (Pls.’ Mem. in Supp. of Mot. Partial Summ. J., Ex. N.)

The average time on the waiting list was two years and three

months. (Id.)

Discussion

As noted above, defendants have moved for summary judgment

on all seven counts of plaintiffs’ amended complaint while

2 The content of the notification letters varies because that part of the process is handled by the area agencies. A review of the notification letters submitted as Exhibit P to Plaintiffs’ Memorandum of Law in Support of Motion for Partial Summary Judgment Pursuant to Fed. R. Civ. P. 56 on Counts I I , VI and VII of the Complaint reveals that out of twenty-four letters from six different area agencies: ten mentioned neither the priority system outlined in He-M 522.11(c) nor the agency follow-up procedure outlined in He-M 522.11(f); six mentioned the priority system but not the follow-up procedure; five mentioned the follow-up procedure but not the priority system; and only three mentioned both the priority system and the follow-up procedure.

16 plaintiffs have moved for summary judgment on Counts I I , V I , and

VII. The court considers each count in turn.

I. Count I : 42 U.S.C. §§ 1396a(a)(17) and (19) & 42 C.F.R. §§ 440.230(b) and (d) – Right to Effective Service

In Count I , plaintiffs claim that they have been denied

effective services to which they are entitled under the Medicaid

Act. More specifically, they assert that defendants have

violated their rights under: (1) 42 U.S.C. § 1396a(a)(17) by

failing to administer the ABD/HCBC waiver program according to

reasonable standards; (2) 42 U.S.C. § 1396a(a)(19), by failing to

administer the program in the best interests of the recipients;

(3) 42 C.F.R. § 440.230(b), by failing to provide ABD/HCBC waiver

services that are sufficient in amount, duration, and scope to

reasonably achieve the purposes of the ABD/HCBC waiver program;

and (4) 42 C.F.R. § 440.230(d), by impermissibly limiting the

availability of ABD/HCBC waiver services on the basis of criteria

other than medical necessity, utilization control, and the like.

17 Defendants move for summary judgment on grounds that: (1)

they enjoy constitutional protection, in the form of Eleventh-

Amendment sovereign immunity, from suits brought to enforce the

Medicaid Act; and (2) the Medicaid Act itself confers upon

plaintiffs no rights that are enforceable under § 1983.

Plaintiffs counter by contending that: (1) this suit, which seeks

only prospective relief, does not impinge upon the State’s

sovereign immunity, under the doctrine of Ex parte Young, 209

U.S. 123 (1908); and (2) they do enjoy enforceable rights under

each of the four statutory and regulatory provisions on which

Count I is based. While the court agrees that the Eleventh

Amendment does not pose a bar to prospective enforcement of

provisions of the Medicaid Act, the court does not agree that

plaintiffs enjoy rights enforceable through § 1983, under either

42 U.S.C. §§ 1396a(a)(17) and (19) or 42 C.F.R. §§ 440.230(b) and

(d). Thus, defendants’ motion for summary judgment is granted as

to Count I .

18 A. Eleventh-Amendment Sovereign Immunity

Under the Eleventh Amendment to the United States

Constitution, “[t]he judicial power of the United States shall

not be construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United States by

Citizens of another State, or by Citizens or Subjects of any

Foreign State.” The Eleventh Amendment also bars “a citizen from

suing his own State under the federal-question head of

jurisdiction.” Alden v . Maine, 527 U.S. 706, 727 (1999)

(citing Hans v . Louisiana, 134 U.S. 1 , 14-15 (1890)) (denying

Maine state workers the right to sue their employer, the State of

Maine, in state court, for alleged violation of federal Fair

Labor Standards A c t ) . However, the Eleventh Amendment does allow

“suits against state officials seeking declaratory and injunctive

relief against the state officials in their individual capacities

who act in violation of federal law.” Strahan v . Coxe, 127 F.3d

155, 166 (1st Cir. 1997)(citing Idaho v . Coeur d’Alene Tribe of

Idaho, 521 U.S. 261, 269 (1997); Ex parte Young, 209 U.S. 1 2 3 ) .

19 According to defendants, the doctrine of Ex parte Young is

not applicable to suits brought to enforce the Medicaid Act.

They rely upon Westside Mothers v . Haveman, 133 F. Supp. 2d 549

(E.D. Mich. 2001), a recent decision in the Southern Division of

the Eastern District of Michigan. In Westside Mothers, the

district court ruled, inter alia, that state officials

responsible for administering Michigan’s participation in the

federal Medicaid program enjoyed Eleventh-Amendment immunity from

suits brought by private parties to enforce the Medicaid Act, due

to the inapplicability of the doctrine of Ex parte Young.

Westside Mothers, 133 F. Supp. 2d at 560-61. And, defendants

note that neither the United States Supreme Court nor the Court

of Appeals for the First Circuit has addressed and rejected the

position taken by the district court in Westside Mothers.

While of interest, Westside Mothers i s , of course, not the

law of the First Circuit. In this circuit, a state official

acting in violation of federal law is not insulated by the

Eleventh Amendment and may be sued for prospective injunctive

20 relief. Strahan, 127 F.3d at 166. Because this suit has been

brought against the director of DDS and the commissioner of HHS

in their individual capacities, alleges a violation of federal

law, i.e., the Medicaid Act, and seeks prospective relief, it is

not barred by the Eleventh Amendment. See also Lewis v . New

Mexico Dept. of Health, 261 F. 3d 970 (10th Cir. 2001), aff’g 94

F. Supp. 2d 1217 (D.N.M. 2000) (rejecting Eleventh-Amendment

challenge to suit brought by Medicaid recipients claiming that

use of waiting list by state agency administering Medicaid waiver

program violated 42 U.S.C. § 1396a(a)(8), Medicaid Act’s

“reasonable promptness” provision); Doe 1-13 ex rel. Doe 1-13 v .

Chiles, 136 F.3d 709, 719-21 (11th Cir. 1998) (rejecting

Eleventh-Amendment challenge to enforcement of § 1396a(a)(8));

Boulet v . Cellucci, 107 F. Supp. 2d 6 1 , 74 (D. Mass. 2000)

(Eleventh Amendment does not bar suit to enforce reasonable

promptness provision of Medicaid A c t ) .

21 B. 42 U.S.C. § 1983

In order to prevail on a § 1983 claim, a plaintiff must

prove that one or more individual defendants, acting under color

of state law, deprived him or her of a right, privilege, or

immunity secured by the Constitution or laws of the United

States. See Blessing v . Freestone, 520 U.S. 329, 340 (1997).

More specifically:

In order to seek redress through § 1983 . . . a plaintiff must assert the violation of a federal right, not merely a violation of federal law. Golden State Transit Corp. v . Los Angeles, 493 U.S. 103, 106 (1989). We have traditionally looked at three factors when determining whether a particular statutory provision gives rise to a federal right. First, Congress must have intended that the provision in question benefit the plaintiff. Wright [v. City of Roanoke Redevelopment & Housing Auth., 479 U.S. 418,] 430 [(1987)]. Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so “vague and amorphous” that its enforcement would strain judicial competence. Id., at 431-432. Third, the statute must unambiguously impose a binding obligation on the States. In other words, the provision giving rise to the asserted right must be couched in mandatory, rather than precatory, terms. Wilder [v. Virginia Hosp. Ass’n, 496 U.S. 498,] 510-511 [(1990)]; see also Pennhurst State School and Hospital v . Halderman, 451 U.S. 1 , 17 (1981) (discussing whether Congress created obligations giving rise to an implied cause of action).

22 Blessing, 520 U.S. at 340-41 (emphasis in the original).

According to defendants, none of the four statutory or

regulatory provisions relied upon by plaintiffs in Count I gives

rise to a federally established right that is enforceable under §

1983. Plaintiffs disagree, categorically. The court examines

each of these four provisions in turn.

42 U.S.C. § 1396a(a)(17). This provision pertains to the

standards under which a state evaluates the financial eligibility

of potential Medicaid recipients. The portion of this provision

on which plaintiffs rely states, in pertinent part:

A State plan for medical assistance must –

(17) except as provided in subsections (l)(3), (m)(3), and (m)(4) of this section, include reasonable standards (which shall be comparable for all groups and may, in accordance with standards prescribed by the Secretary, differ with respect to income levels . . . ) for determining eligibility for and the extent of medical assistance under the plan which (A) are consistent with the objectives of this subchapter,

23 (B) provide for taking into account only such income and resources as are, as determined in accordance with standards prescribed by the Secretary, available to the applicant or recipient . . . , (C) provide for reasonable evaluation of income or resources, and (D) do not take into account the financial responsibility of any individual for any applicant or recipient of assistance unless . . .

42 U.S.C. § 1396(a)(17). In plaintiffs’ view: (1) defendants

have not been operating the ABD/HCBC waiver program in accordance

with reasonable standards; and (2) § 1396a(a)(17) entitles them

to obtain a court order requiring defendants to do s o .

Specifically, plaintiffs claim that the ABD/HCBC waiver program

is not being operated in a reasonable manner because it is

inadequately funded, places arbitrary limits on the availability

of ABD/HCBC waiver services, and lacks coordination among the

various agencies involved in providing services. Defendants

counter that: (1) § 1396a(a)(17) grants the states wide

discretion in administering their Medicaid programs; (2) the

language of this statute is similar to that of 42 U.S.C. §

1396a(a)(9), which at least one court has found not to create an

enforceable federal right; and (3) the gravamen of plaintiffs’

24 complaint places it beyond the ambit of § 1396a(a)(17). The

court accepts defendants’ third argument.

“A straightforward reading of this language [§ 1396a(a)(17)]

shows it governs the income calculations States use to determine

whether an individual is eligible for Medicaid services.”

Prestera Ctr. for Mental Health Servs., Inc. v . Lawton, 111 F.

Supp. 2d 7 6 8 , 777 (S.D. W.Va. 2000) (citing Mitchell v . Lipscomb,

851 F.2d 7 3 4 , 735 (4th Cir. 1988)). The statute “also provides a

State can choose in its state plan whether or not to cover a

particular medical procedure for Medicaid recipients, so long as

the choice is reasonable.” Prestera, 111 F. Supp. 2d at 777; see

also, Hern v . Beye, 57 F.3d 906, 910-11 (10th Cir. 1995)

(striking down, as violation of § 1396a(a)(17), Colorado

constitutional amendment that prohibited funding for abortions

for rape and incest victims, which was allowable under Hyde

Amendment); Smith v . Palmer, 24 F. Supp. 2d 955, 963-64 (N.D.

Iowa 1998), sub nom, Smith v . Rasmussen, 57 F. Supp. 2d. 736

(N.D. Iowa 1999), rev’d and remanded on other grounds, 249 F.3d

25 755 (8th Cir. 2001) (ruling that § 1396a(a)(17) gave plaintiff

private right of action to challenge categorical exclusion of sex

reassignment surgery). The only reported First Circuit cases

enforcing § 1396a(a)(17) pertain to the determination of

financial eligibility for Medicaid benefits. See, e.g., Lamore

v . Ives, 977 F.2d 713 (1st Cir. 1992) (allowing certain veterans’

benefits to be counted as income for purpose of determining

eligibility for Medicaid benefits); Hogan v . Heckler, 769 F.2d

886 (1st Cir. 1985) (upholding six-month spend-down imposed upon

medically needy Medicaid recipients).

This is not a case about determinations of financial

eligibility for Medicaid benefits or decisions about covering

particular categories of medical care. Rather, it is a case

about how many eligible recipients are able to participate in the

ABD/HCBC waiver program – a category of care which has been

approved for Medicaid reimbursement. Thus, § 1396a(a)(17) is

simply not implicated by plaintiffs’ criticisms of the manner in

which defendants administer the ABD/HCBC waiver program.

26 Accordingly, the court need not undertake an analysis under

Blessing to determine whether this provision gives rise to a

private cause of action that is enforceable under § 1983.

Because plaintiffs have alleged no facts supporting a claim

that defendants have improperly determined their financial

eligibility for Medicaid benefits or have impermissibly declined

reimbursement for an entire category of medical care, defendants

are entitled to judgment on that part of Count I claiming a

violation of 42 U.S.C. § 1396a(a)(17).

42 U.S.C. § 1396a(a)(19). The second statutory provision

plaintiffs seek to enforce in Count I provides, in its entirety:

(19) provide such safeguards as may be necessary to assure that eligibility for care and services under the plan will be determined, and such care and services will be provided, in a manner consistent with simplicity of administration and the best interests of the recipients.

27 According to plaintiffs, defendants have not operated the

ABD/HCBC waiver program in their best interests, and should be

enjoined to do s o . Specifically, plaintiffs claim that it is not

in their best interests to be forced to spend years on the

ABD/HCBC waiting list. Defendants contend that § 1396a(a)(19),

like the provision held unenforceable in Suter v . Artist M., 503

U.S. 347 (1992), is too general to be capable of proper judicial

administration. The court agrees.

The First Circuit has not addressed the question whether §

1396a(a)(19) creates a private right of action. However, the

Eleventh Circuit has determined that “this section [§

1396a(a)(19)] imposes only a generalized duty on the States – in

other words, the provision is insufficiently specific to confer

any particular right upon the plaintiffs.” Harris v . James, 127

F.3d 993, 1010 (11th Cir. 1997) (citing Suter, 503 U.S. at 3 6 3 ) .

Other courts have reached similar conclusions with respect to § 1396a(a)(19). See Bumpus v . Clark, 681 F.2d 679, 683 (9th Cir. 1982) (“Section 1396a(a)(19) is not the sort of specific condition for receipt of federal funds which can be said to create substantive

28 rights in Medicaid recipients.”), opinion withdrawn as moot, 702 F.2d 826 (9th Cir. 1983); Stewart v . Bernstein, 769 F.2d 1088, 1093 (5th Cir. 1985) (citing Bumpus with approval); Cook v . Hairston, N o . 90-3437, 948 F.2d 1288 (6th Cir. Nov. 2 6 , 1991) (unpublished disposition) (“[T]he district court did not err in finding that the [provisions] in question were not sufficiently specific and definite to permit enforcement through § 1983.”).

Harris, 127 F.3d at 1010 (footnote omitted). In light of the

decision in Harris and the cases cited therein, and absent any

contrary precedent in any other circuit, this court concludes

that plaintiffs have no private right of action under §

1396a(a)(19) because that statute is too “vague and amorphous” to

confer one, under the rule of Blessing, 520 U.S. at 340-41.

Accordingly, defendants are entitled to judgment on that portion

of Count I claiming a violation of 42 U.S.C. § 1396a(a)(19).

42 C.F.R. §§ 440.230(b) and ( d ) . 42 C.F.R. § 440.230, which

is titled “Sufficiency of amount, duration, and scope,” provides:

(a) The plan must specify the amount, duration, and scope of each service that it provides for –

(1) The categorically needy; and

29 (2) Each covered group of medically needy.

(b) Each service must be sufficient in amount, duration, and scope to reasonably achieve its purpose.

(c) The Medicaid agency may not arbitrarily deny or reduce the amount, duration, or scope of a required service under §§ 440.210 and 440.220 to an otherwise eligible recipient solely because of the diagnosis, type of illness, or condition.

(d) The agency may place appropriate limits on a service based on such criteria as medical necessity or on utilization control procedures.

According to plaintiffs, defendants have violated 42 C.F.R. §

440.230(b) by establishing an ABD/HCBC waiver program that is

insufficient in amount, duration, and scope to provide timely

ABD/HCBC services to all eligible Medicaid recipients who desire

them, and have violated 42 C.F.R. § 440.230(d) by limiting the

availability of the ABD/HCBC waiver program according to criteria

other than medical necessity or utilization control. Defendants

counter that: (1) § 1983 may not be used to vindicate the

regulatory provisions of § 440.230; (2) the regulations in

question are directed to the services provided to individual

recipients, not to the amount, duration, and scope of a program

30 as a whole; (3) the provisions of § 440.230 do not apply to the

ABD/HCBC program because compliance with these requirements has

been waived; and (4) even if the provisions of § 440.230 are

enforceable, plaintiffs can establish no ongoing violation of

these regulations.

As a preliminary matter, the court is persuaded by

defendants’ argument regarding the proper frame of reference from

which compliance with 42 C.F.R. § 440.230 must be judged.

According to plaintiffs, § 440.230(b) affords them the right to

an ABD/HCBC waiver program that is sufficient in amount,

duration, and scope to provide them with waiver slots immediately

upon a determination of eligibility for the ABD/HCBC waiver

program. But if § 440.230(b) is read as plaintiffs suggest, each

New Hampshire Medicaid recipient who is eligible for the ABD/HCBC

waiver program – even one receiving services that are sufficient

in amount, duration, and scope to meet his or her own needs –

would be entitled to force defendants to provide services to

other Medicaid recipients until such time as the ABD/HCBC waiver

31 program, as a whole, becomes sufficient in amount, duration, and

scope to meet the needs of all who desire to participate.

Because the court does not accept the thesis that § 440.230(b)

provides an individual Medicaid recipient with the right to sue

for benefits to be provided to another, it adopts the reasoning

of King ex rel. King v . Sullivan, 776 F. Supp. 645 (D.R.I. 1991).

In that case, which included a claim to enforce the rights

provided by § 440.230(b), under which “[e]ach service must be

sufficient in amount, duration, and scope to reasonably achieve

its purpose,” the court ruled:

The crucial interpretive problem, then, is understanding what is meant by “its purpose.” As a simple semantic matter, of course, “its purpose” means the purpose of “each service.”

Contrary to Plaintiffs’ contention, the Medicaid statute and regulations do not dictate a level of services that is sufficient in “amount, duration, and scope” to meet the purposes of the Medicaid program. Such a rule would, in essence, imply a federally- mandated minimum level of services that a state must provide; this would run counter to the flexible and cooperative nature of state participation in Medicaid. Instead, this regulation requires that any medical assistance service provided be adequate to reasonably achieve the purposes of the medical assistance service that the state offers in its State Plan. See Virginia

32 Hosp. Ass’n v. Kenley, 427 F. Supp. 781, 785 (E.D. Va. 1977).

King, 776 F. Supp. at 652 (emphasis in the original). Based upon

the analysis in King, § 440.230(b) does not afford plaintiffs

with a collective right to an ABD/HCBC waiver program of any

particular size or scope; it gives each of them an individual

right to have ABD/HCBC services, when such services are provided

at all, that are sufficient in amount, duration, and scope to

achieve the purposes for which those services were provided.3

3 § 440.230(b) has been found to require, for example, that when a state offers eyeglasses under Medicaid, it cannot provide that benefit to persons with eye pathology, while excluding those with refractive error, see White v . Beal, 555 F.2d 1146 (3d Cir. 1977), nor can it limit an eyeglass benefit to “post-cataract surgery patients,” Ledet v . Fischer, 638 F. Supp. 1288, 1289 (M.D. La. 1986), based upon the assumption that “the purpose of [a state’s] optional eyeglass program under federal regulations is ‘to aid or improve vision,’” id. at 1291. According to the court in Ledet, an eyeglass program that has as its purpose the improvement of vision is not sufficient in amount, duration, and scope when eyeglasses are provided to some, but not all persons with vision that could be improved by eyeglasses. Here, by contrast, plaintiffs have alleged no systematic exclusion based upon diagnosis or medical condition; they do not allege, for example, that ABD/HCBC waiver services are granted to persons with ABDs caused by brain tumors but are categorically denied to persons with ABDs caused by external trauma to the brain. The reasoning that underlies White and Ledet was also

33 This approach to defining the scope of the right created by

§ 440.230(b) is consistent with the approach taken by the U.S.

Supreme Court in Blessing. In that case, a class of mothers who

received AFDC payments from the State of Arizona claimed “that

they had an enforceable individual right to have the State’s

program achieve ‘substantial compliance’ with the requirements of

Title IV-D.” 520 U.S. at 333. The court disagreed, explaining

that “the statutory scheme [cannot] be analyzed so generally,”

id., and urged remand to “the District Court to construe the

complaint in the first instance, in order to determine exactly

what rights, considered in their most concrete form, respondents

are asserting,” id. at 346. According to the Supreme Court,

applied in Preterm, Inc. v . Dukakis, 591 F.2d 121 (1st Cir. 1979), the only First Circuit case to derive an enforceable right from 42 U.S.C. § 440.230(b). In that case, the court held that a state Medicaid program is not entitled to fund only certain categories of medically necessary abortions (i.e., those that terminate pregnancies caused by forced rape or incest or that threaten the life of the mother, id. at 122-23), and thus provide services to some but not all persons with a qualifying medical condition (i.e., a medically complicated pregnancy, id. at 1 2 6 ) . Here, plaintiffs do not claim that they are not receiving services, only that they are not receiving the kind of services they desire, which distinguishes this case from virtually all cases finding an actionable right under 42 C.F.R. § 440.230(b).

34 “[o]nly by manageably breaking down the complaint into specific

allegations can the District Court proceed to determine whether

any specific claim asserts an individual federal right.” Id.

(emphasis added). As applied to the facts of this case, the

right claimed by plaintiffs under § 440.430(b) is analogous to

the generalized right rejected by the Supreme Court in Blessing.

There i s , in addition, a more fundamental problem with

plaintiffs’ position. According to plaintiffs themselves, “[a]

federal regulation may create an enforceable right under § 1983

when: (1) the federal statute pursuant to which the regulation

was promulgated itself creates enforceable rights; (2) the

regulation is within the scope of the statute; and (3) the

regulation was intended to create enforceable rights.” (Pls.’

O b j . to Defs.’ Mot. Summ. J. at 30 (citing Wright, 479 U.S.

418).) Plaintiff’s position on the issue is consistent with

Harris, which explained:

Wright would seem to indicate that so long as the statute itself confers a specific right upon the plaintiff, and a valid regulation merely further

35 defines or fleshes out the content of that right, then the statute – “in conjunction with the regulation” – may create a federal right as further defined by the regulation.

127 F.3d at 1008-09 (footnote omitted). Here, however, the court

has ruled that plaintiffs have no private right of action based

upon 42 U.S.C. §§ 1396a(a)(17) or ( 1 9 ) . Thus, the regulations

they seek to enforce, 42 C.F.R. §§ 440.230(b) and ( d ) , do not

describe enforceable rights conferred by statute.4 Because the

regulations plaintiffs seek to enforce are not tied to any

enforceable statute, in the context of this case, those

regulations cannot fall within the scope of any such statute, or

work in conjunction with any such statute, which makes them,

under the circumstances of this case, unenforceable as a matter

of law.5 Accordingly, defendants are entitled to judgment on

4 The court further notes, in passing, that at least one court has observed that “[42 C.F.R.] § 440.230(b) implements [42 U.S.C.] § 1396a(a)(10)(B),” Sobky v . Smoley, 855 F. Supp. 1123, 1142-43 (E.D. Cal. 1994) (footnote omitted), which is not one of the statutes upon which plaintiffs rely for their cause of action in Count I . 5 In so ruling, the court notes that in all of the cases cited by plaintiffs for the proposition that 42 C.F.R. § 440.230

36 that portion of Count I alleging violations of 42 C.F.R. §§

440.230(b) and ( d ) .

Because plaintiffs have no enforceable § 1983 claim based

upon any of the statutes or regulations cited in Count I ,

defendants’ motion for summary judgment is granted as to that

count.

II. Count I I : 42 U.S.C. § 1396a(a)(8) & 42 C.F.R. § 435.930(a) Right to Timely Care

In Count I I , plaintiffs claim that defendants’ use of a

waiting list for ABD/HCBC waiver services violates their right,

under 42 U.S.C. § 1396a(a)(8) and 42 C.F.R. § 435.930(a), to be

furnished Medicaid services with reasonable promptness.

Defendants move for summary judgment on Count II on the same

grounds raised with respect to Count I , and argue, in addition,

that even if plaintiffs do have an enforceable right under §

is enforceable under § 1983, the regulation was paired with at least one enforceable statutory provision that remained in controversy.

37 1396a(a)(8), they (defendants) are entitled to judgment as a

matter of law on the undisputed factual record because plaintiffs

have all been deemed eligible for ABD/HCBC waiver services

without any administrative delay. Plaintiffs defend against

summary judgment on the same grounds they raised in defense

against summary judgment on Count I , and, in addition, contend

that they are entitled to judgment as a matter of law on the

undisputed factual record, because despite having been deemed

eligible for ABD/HCBC waiver services, they have not been

provided, reasonably promptly, with the services for which they

have been deemed eligible. Neither party is entitled to summary

judgment on Count I I .

For the reasons given above, the Eleventh Amendment poses no

obstacle to obtaining the relief sought in Count I I . See also

Lewis, 261 F. 3d 970 (affirming denial of motion to dismiss,

based upon Eleventh Amendment, when plaintiffs’ claim was brought

to enforce § 1396a(a)(8) reasonable promptness provision with

respect to two Medicaid waiver programs). Turning to an analysis

38 under § 1983, the court is not persuaded by defendants’ argument

that 42 U.S.C. § 1396a(a)(8) is not enforceable under § 1983.

The relevant portion of the Medicaid Act provides as

follows:

(8) provide that all individuals wishing to make application for medical assistance under the plan shall have opportunity to do s o , and that such assistance shall be furnished with reasonable promptness to all eligible individuals.

42 U.S.C. § 1396a(a)(8).

While the First Circuit has yet to decide whether a Medicaid

recipient enjoys a private right of action to enforce §

1396a(a)(8), at least one circuit has held that Medicaid

recipients “have a federal right to reasonably prompt provision

of assistance under section 1396a(a)(8) of the Medicaid Act, and

that this right is enforceable under section 1983.” Doe, supra,

136 F.3d at 719 (citing Sobky, 855 F. Supp. at 1146-47 (“the

39 reasonable promptness clause confers enforceable rights on

plaintiffs”)); see also Boulet, 107 F. Supp. 2d at 74 (enforcing

§ 1396a(a)(8) reasonable promptness requirement in class action

brought to force state to provide benefits under Medicaid waiver

program). Furthermore, while it has yet to decide the question

of the enforceability of § 1396a(a)(8) under § 1983, see Lewis

261 F.3d at 9 7 7 , the Tenth Circuit has held that for purposes of

an Eleventh-Amendment sovereign-immunity analysis, plaintiffs’

claim that 1396a(a)(8) “creates a binding obligation on the

states is not frivolous.” Id.

Defendants, on the other hand, have pointed to no contrary

precedent. Moreover, the First Circuit has held that “individual

AFDC recipients possess standing to bring a private action

against the State, under 42 U.S.C. § 1983, to enforce their right

to prompt disbursement of their child-support entitlements under

Titles IV-A and IV-D of the Social Security Act.” Albiston v .

Maine Comm’r of Human Servs., 7 F.3d 258, 269 (1st Cir. 1993).

The statute the court of appeals found enforceable in Albiston

40 provides that AFDC “‘[g]ap’ payments . . . must be ‘furnished

with reasonable promptness to all eligible individuals.’” Id. at

260 (quoting 42 U.S.C. § 602(a)(10)). Given the similarity

between the statutory language in Albiston and the pertinent

statutory language in this case, the holding in Lewis, and absent

any precedent to the contrary, the court concludes that

plaintiffs in this case may employ § 1983 to enforce the

reasonable promptness provision of § 1936a(a)(8).

The fact that plaintiffs seek waiver services, rather than

Medicaid services that the state is required to provide, does not

relieve defendants of the obligation to provide the services it

has chosen to provide with reasonable promptness.

“[W]hen a state elects to provide an optional service, that service becomes part of the state Medicaid plan and is subject to the requirements of federal law.” Tallahassee Memorial Regional Medical Center v . Cook, 109 F.3d 693, 698 (11th Cir. 1997) (per curiam); see also McMillan v . McCrimon, 807 F. Supp. 475, 481-82 (C.D. Ill. 1992) (“The fact that the [Home Services Program] is an optional service does not exempt it from the requirements of section 1396a(a)(8).”).

41 Doe, 136 F.3d at 714. See also Sobky, 855 F. Supp. at 1127

(“once a state elects to provide an optional service such as

methadone maintenance, that service becomes part of the state

Medicaid plan and is subject to the requirements of federal law”)

(citing Weaver v . Reagen, 886 F.2d 194, 197 (8th Cir. 1989)

(imposing 42 C.F.R. § 440.230 requirements on state’s optional

prescription drug program); Eder v . Beal, 609 F.2d 695, 701-02

(3rd. Cir. 1979) (imposing statutory notice requirement as

precondition for state’s termination of optional eyeglass

program); Clark v . Kizer, 758 F. Supp. 5 7 2 , 575 (E.D. Cal. 1990),

aff’d in part and vacated in part on other grounds sub nom.,

Clark v . Coye, 967 F.2d 585 (9th Cir. 1992) (table) (imposing

multiple § 1396a and § 440.230 requirements on state’s optional

program for adult dental care); King v . Smith, 392 U.S. 309, 316

(1968)). More specifically:

Pursuant to 42 U.S.C. § 1396n(c), states are permitted to apply for a waiver to use their federal Medicaid money to pay for home or community-based services, i.e. waiver services. The statute refers to these services as “medical assistance.” Another provision of the Medicaid Act provides that “[a] state plan for medical assistance must . . . provide that all individuals

42 wishing to make application for medical assistance under the plan shall have the opportunity to do s o , and that such assistance shall be furnished with reasonable promptness to all eligible individuals.” 42 U.S.C. § 1396a(a)(8). Given that the latter provision requires that all medical assistance be provided with “reasonable promptness” and that the waiver provision refers to waiver services as “medical assistance” the Court concludes that Congress intended the “reasonable promptness” requirement to apply to waiver services. Accord Doe v . Chiles, 136 F.3d 709, 715 (11th Cir. 1998); Sobky v . Smoley, 855 F. Supp. 1123, 1146 (E.D. Cal. 1994). As reasoned by the court in McMillan v . McCrimon, 807 F. Supp. 475, 482 (C.D. Ill. 1992), this determination is supported by the fact that the waiver provision expressly allows the Secretary to waive certain Medicaid Act requirements, 42 U.S.C. § 1396n(c)(3), but does not include the “reasonable promptness” provision in this list of exemptions.

Lewis, 94 F. Supp. 2d at 1233-34; see also Boulet, 107 F. Supp.

2d at 76 (“Traditional statutory analysis supports a finding

that, once a state opts to implement a waiver program and sets

out eligibility requirements for that program, eligible

individuals are entitled to those services and to the associated

protections of the Medicaid Act.”). Based upon the foregoing,

the court concludes that the reasonable promptness requirement

applies to New Hampshire’s ABD/HCBC waiver program.

43 Finally, the court acknowledges, but rejects, defendants’

argument that § 1396a(a)(8) pertains to administrative delays but

not delays in the actual provision of services. While the court

in Albiston used 45 C.F.R. § 206.10(a)(5)(i) to construe the

phrase “reasonable promptness” in 42 U.S.C. § 602(a)(10) as

meaning “an absence of delay due to the State’s administrative

process,” 7 F.3d at 267 (emphasis omitted), Albiston does not

limit the reasonable promptness requirement in this case to

reasonable promptness in administrative process. In Albiston,

plaintiffs themselves framed the case as being about “‘systemic’

administrative deficiencies,” id. at 2 6 1 , in the state’s

procedure for making AFDC “gap” payments. Furthermore, AFDC

“gap” payments appear to be a benefit that is provided entirely

administratively, by the writing and mailing of a check. S o , in

Albiston, an administrative delay was tantamount to a delay in

providing services. Because the services at issue in Albiston

are materially different from the services at issue here, the

court declines to read Albiston as entitling plaintiffs to

nothing more than reasonable promptness in administrative

44 processing. Rather, the court relies upon: (1) the plain

language of the statute itself ( “ . . . such assistance shall be

furnished with reasonable promptness to all eligible individuals”

(emphasis added)); and (2) those cases that have construed §

1396a(a)(8) to impose the reasonable promptness requirement on

both the administrative aspect of benefit delivery and the

actual delivery of services. See, e.g., Doe, 136 F.3d at 719;

Boulet, 107 F. Supp. 2d at 79 (“§ 1396a(a)(8)’s statement that

‘medical assistance’ be furnished with reasonable promptness

indicates that the reasonable promptness requirement must apply

to the services themselves, rather than only to eligibility

determinations, as defendants argue”) (citing Sobky, 855 F. Supp.

at 1147); Lewis, 94 F. Supp. 2d at 1236;; Linton ex rel. Arnold

v . Carney ex rel. Kimble, 779 F. Supp. 925, 936 (M.D. Tenn.

1990); Clark, 758 F. Supp. at 580.

Having established plaintiffs’ private right of action to

enforce § 1396a(a)(8), and defendants’ obligation to operate the

ABD/HCBC waiver program in conformity with the requirements of

45 the Medicaid Act, including the reasonable promptness provision,

the court now turns to the merits of the parties’ cross-motions

for summary judgment.

Defendants argue that: (1) any delays that plaintiffs have

encountered are reasonable because they arise from the logistical

complexities of providing ABD/HCBC services, which are highly

individualized and time-consuming to arrange; (2) the State is

allowed to limit the provision of waiver services to only a

subgroup of the relevant eligible population, which is necessary

in order for defendants to abide by the waiver program’s cost-

neutrality requirement; and (3) most members of the plaintiff

class, if not all, will be off the waiting list by the end of the

current biennium.

Plaintiffs contend that defendants have violated – and

continue to violate – the reasonable promptness requirement of §

1396a(a)(8) and its associated regulations by: (1) having a

waiting list at all; (2) allowing the waiting list to move at an

46 unreasonably slow pace, leaving some persons on it for as long as

seven years; (3) failing to fill all the waiver slots that have

been approved by HCFA; and (4) failing to apply for the statutory

minimum of 200 waiver slots.

The basic thrust of plaintiffs’ argument is that many of

defendants’ practices – the existence of which defendants do not

seriously dispute – violate § 1396a(a)(8), which entitles them to

summary judgment. However, the issue is not quite so

uncomplicated as deciding, for example, that use of a waiting

list is unlawful under any circumstances, or that two years on

the waiting list constitutes an unreasonable delay, as a matter

of law. One complicating factor, given limited attention by

plaintiffs, is the cost-neutrality requirement of the waiver

program, as set out in 42 U.S.C. § 1396n(c)(2)(D). While

defendants are statutorily obligated to provide ABD/HCBC waiver

services with reasonable promptness, the concept of reasonable

promptness must take into account defendants’ statutory

obligation not to violate the basic cost-neutrality requirement

47 of the waiver program. Thus, if defendants’ delays in providing

plaintiffs with ABD/HCBC waiver services are attributable to

adherence to the cost-neutrality requirement, these delays cannot

be unreasonable. On the record before the court, defendants’

ability to provide the relief requested by plaintiffs without

violating the cost-neutrality requirement would appear to be a

material fact in dispute precluding summary judgment.

Accordingly, both parties’ motions for summary judgment on Count

II are necessarily denied on this record.

III. Count VII: 42 U.S.C. § 1396a(a)(3) & 42 C.F.R. §§ 435.911- 435.920 – Right to Notice and Hearing

In Count VII, plaintiffs claim that defendants have violated

their rights under 42 U.S.C. § 1396a(a)(3) by failing to provide

them with adequate notice regarding decisions placing them on the

ABD/HCBC waiting list, and by failing to provide them with

hearings related to those decisions. Defendants move for summary

judgment on grounds that plaintiffs have not received any adverse

decisions concerning Medicaid eligibility, and therefore have not

been deprived of any rights under § 1396a(a)(3). Plaintiffs

48 counter that the decision to place an otherwise eligible

applicant for ABD/HCBC waiver services on a waiting list

constitutes an adverse determination regarding the receipt of

Medicaid benefits, because persons on the waiting list are, for

all practical purposes, effectively denied benefits for which

they have applied and are plainly eligible. In their motion for

summary judgment, plaintiffs go considerably further, adding a

claim that defendants have violated 42 U.S.C. § 1396n(c)(2)(C) by

failing to notify potential applicants for the ABD/HCBC waiver

program about the existence of the waiver and the available

choice between institutional and ABD/HCBC waiver services.

Because plaintiffs did not invoke § 1396n(c)(2)(C) as a

basis for relief in their complaint, they cannot now seek summary

judgment on a claim that defendants have violated that statutory

provision. Moreover, because the plaintiff class is comprised of

eligible persons on the ABD/HCBC waiver program waiting list, it

is not at all clear how any of them could have standing to claim

that defendants have failed to comply with a statutory obligation

49 to fully inform potential participants of the availability of the

ABD/HCBC waiver program. Accordingly, to the extent plaintiffs’

motion for summary judgment on Count VII is based upon §

1396n(c)(2)(C), the motion is denied. However, for the reasons

stated below, that portion of plaintiffs’ motion for summary

judgment that relates to Count V I I , as originally pled, is

granted.

The Medicaid Act provision relevant to Count VII provides as

(3) provide for granting an opportunity for a fair hearing before the State agency to any individual whose claim for medical assistance under the plan is denied or is not acted upon with reasonable promptness.

42 U.S.C. § 1396a(a)(3).

Defendants do not appear to argue that § 1396a(a)(3) is

unenforceable under § 1983, and indeed, it seems beyond question

that § 1396a(a)3) meets the tests set out in Blessing. See,

50 e.g., Cramer v . Chiles, 33 F. Supp. 2d 1342, 1351-52 (S.D. Fla.

1999) (ruling that when state phased out funding for private

intermediate care facilities for the developmentally disabled

(“ICF/DDs”), thus requiring recipients of that Medicaid service

to choose between public ICF/DD and HCBC waiver services, §

1396a(a)(3) entitled them to adequate notice and hearing).

Moreover, for reasons set out above, it also seems clear that the

hearing requirement – just like the reasonable promptness

requirement – applies with full force to waiver programs.

Accordingly, the court need only consider whether the decision to

place – or keep – a person on the ABD/HCBC waiting list triggers

the hearing requirement of § 1396a(a)(3).

This looks to be a question of first impression. The

positions of the parties are relatively straightforward.

Defendants argue that this case involves no denial of services

because all members of the plaintiff class have been found

eligible to receive ABD/HCBC waiver services, and most are, in

fact, receiving ABD services, albeit in institutional settings.

51 They argue, as well, that to the extent eligibility decisions are

made within the twenty-one day time frame mandated by DDS

regulations, applications for the ABD/HCBC waiver program are

acted upon with reasonable promptness. Plaintiffs disagree,

arguing that being deemed eligible for services, and then being

placed on an interminable waiting list to receive those services,

constitutes either: (1) a de facto denial of services, because,

as a logical matter, a person whose access to a medical service

has been deferred has been denied that service until such time as

the deferral period expires; or (2) a failure to act upon a claim

for medical assistance (by failing to provide medical assistance

with reasonable promptness). Plaintiffs further argue that

because a finding of eligibility coupled with an indefinite

deferral of services constitutes a denial of services, or a

failure to act on a claim for services, the decision to place an

applicant on a waiting list is a decision to which the Medicaid

Act’s notice requirement applies. The court agrees.

52 Resolution of this cause of action depends, to a certain

extent, on the final resolution of Count I I . That i s , if it is

determined that defendants are obligated to operate the ABD/HCBC

waiver program without a waiting list of any kind, as plaintiffs

contend, then the court’s final order after a hearing on the

merits will eliminate the need for the relief requested in Count

VII, making this claim moot. I f , on the other hand, the court

rules that use of a waiting list is permissible under certain

circumstances, such as defendants’ inability to create waiver

slots without violating the cost-neutrality requirement or a

legitimate need to accommodate modest and unavoidable delays in

effecting placements, then this count will not be moot.

Assuming, for the sake of argument, that a waiting list is

permissible under limited circumstances, the court agrees with

plaintiffs that placement on the waiting list could constitute a

substantive, albeit non-permanent, denial of ABD/HCBC waiver

services. And, because those services constitute an entitlement,

see Boulet, 107 F. Supp. 2d at 7 7 , applicants placed on a waiting

53 list do have a right to a fair hearing related to the

determination that relegated them to the waiting list, and the

priority assigned to them. Such a hearing would allow applicants

to present evidence and argue at least two issues: (1) the

potential cost of the waiver services they seek, which would be

relevant to whether the requested services would jeopardize

defendants’ ability to abide by the cost-neutrality requirement;

and (2) the data used by area agency staff members to place

applicants in one of the two waiting list priority categories,

and to move applicants off the waiting list and into ABD/HCBC

placements. Accordingly, the court rules that if defendants are

permitted to place applicants on a waiting list, then they are

required by 42 U.S.C. § 1396a(a)(3) to provide those applicants

placed on the waiting list with a fair hearing regarding that

decision.

For the reasons given, and to the extent defendants are

permitted to place applicants on a waiting list, plaintiffs’

54 motion for summary judgment on Count VII, as pled, is granted and

defendants’ motion for summary judgment on Count VII is denied.

IV. Count V I : Due Process – Right to Notice and Hearing

In Count V I , plaintiffs claim that defendants have denied

them due process of law by failing to provide them with adequate

notice of the decisions that placed them on the ABD/HCBC waiting

list, and by failing to provide them with hearings related to

those decisions. Because this constitutional claim merely

restates the claims made in Count VII, under 42 U.S.C. §

1396a(a)(3), and because plaintiffs would not be entitled to any

more or different relief under this claim than they are due under

Count VII, Count VI is moot, and the court need not reach the

constitutional question presented.

V. Count V: Due Process – Right to Reasonable Decision-Making

In Count V , plaintiffs claim that defendants denied them due

process of law by failing to administer the ABD/HCBC waiver

program in accordance with written, objective, reasonable, and

55 ascertainable standards for determining which eligible applicants

will receive ABD/HCBC waiver services and which will not. More

specifically, plaintiffs complain that “it is impossible for

persons to ascertain with a reasonable degree of certainty their

status or position on the ‘wait list’ as compared to others on

the ‘wait list,’ or when they will be removed from the ‘wait

list’ to begin receiving home and community-based services.”

(Am. Compl. ¶ 129.) Defendants move for summary judgment on

grounds that the undisputed factual record shows that HHS has

promulgated, and the area agencies follow, a detailed set of

rules for determining who is placed on the waiting list, what

priority level each applicant is assigned, how priority for

services is determined within each priority category, and how the

information necessary for making these determinations is to be

updated. Plaintiffs respond that defendants have failed to

produce sufficient facts to rebut the factual showing that they

have made. The Court does not agree.

56 Plaintiffs base Count V on the proposition that “the

establishment of written, objective, and ascertainable standards

[for distributing public benefits] is an elementary and intrinsic

part of due process,” Baker-Chaput v . Cammett, 406 F. Supp. 1134,

1140 (D.N.H. 1976) (ordering Town of Raymond Overseer of the Poor

to produce written welfare standards and guidelines). The

purpose of the court’s order in Baker-Chaput was to curtail

“[t]he standardless administration of general assistance [which]

places the hungry and the poor at the administrator’s whim and

does little to foster the belief, so important in a democratic

society, that justice has been served.” Id. at 1139. Here, by

contrast, the undisputed factual record shows that HHS has

promulgated written standards, set out in He-P 522, for both

assessing eligibility for the ABD/HCBC waiver program, and

managing the waiting list. While plaintiffs claim that under

defendants’ regulations and practices one cannot predict when he

or she will be moved from the waiting list to a waiver slot, that

is not due to an absence of standards that leaves area agency

personnel to administer the waiting list at their own whim.

57 Rather, the standard used to move a person from the waiting list

into a waiver slot – the immediacy and magnitude of his or her

needs – is an inherently fluid standard. Thus, while the

description of that standard in He-P 522.11(d) does not

necessarily inform an applicant as to when her particular needs

will place her at the top of the priority list, it does

adequately inform her of the basis on which such decisions are

made. That i s , the standards governing operation of the waiting

list, as written, provide applicants with a sufficient basis to

present facts and legal argument at a hearing held in connection

with an area agency’s decision to assign a particular priority

status to an applicant for ABD/HCBC waiver services.

Because the undisputed factual record demonstrates that

defendants do have written, objective, and ascertainable

standards for managing the ABD/HCBC waiver program waiting list,

defendants are entitled to judgment as a matter law on Count V.

Accordingly, defendants’ motion for summary judgment is granted

as to Count V.

58 VI. Counts III & IV: ADA & Section 504 – Integration Mandate & Disability-Based Discrimination

In Count III, plaintiffs claim that because ABD/HCBC waiver

services are the most integrated ABD services appropriate to

their needs, defendants have violated their rights under the

integration mandates of the ADA and section 504 by failing to

provide them with those services. In Count IV, plaintiffs claim

that defendants’ administration of the ABD waiver program limits

the availability of ABD/HCBC waiver services based on severity of

need, and, thus, constitutes disability-based discrimination in

violation of the ADA and section 504. Defendants move for

summary judgment on both counts on grounds that their

administration of the ABD/HCBC waiver program satisfies the

requirements set out by the United States Supreme Court in

Olmstead v . LC ex rel. Zimring, 527 U.S. 581 (1999), by virtue

of: (1) the existing construct through which ABD/HCBC services

are currently offered; (2) recently increased funding for the

ABD/HCBC waiver program; and (3) their ongoing plan to increase

the overall capacity of programs that serve those with ABDs.

59 Plaintiffs resist summary judgment by contending that material

facts remain in dispute with respect to defendants’ claim to be

operating the ABD/HCBC waiver program in conformity with the

requirements of Olmstead. The court agrees.

Because Title II of the ADA, the provision at issue here, is

modeled on section 504, see Parker v . Universidad de Puerto Rico,

225 F.3d 1 , 4 (1st Cir. 2000), the court will conduct a single

analysis of the claims based on these two statutes. See also

Makin ex rel. Russell v . Hawaii, 114 F. Supp. 2d 1017, 1036 (D.

Haw. 2000) (“the ‘integration mandate’ of [section 504] appears

to set the same standard as the ADA provision”). According to

the ADA:

Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

42 U.S.C. § 12132. According to regulations that implement the

ADA:

60 A pubic entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.

28 C.F.R. § 35.130(d). These regulations further provide that:

A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.

28 C.F.R. § 35.130(b)(7).

In Olmstead, the Supreme Court decided issues arising from

requests from two mentally retarded women to be moved from

institutional placements to Georgia’s HCBC waiver program. Id.

at 583. Their claim was based upon the ADA integration mandate,

id., and was premised upon the idea that home and community-based

care was the most integrated setting appropriate for providing

them with the services to which they were entitled under the

Medicaid Act. The Supreme Court largely agreed, holding that

61 “[u]njustified isolation [of Medicaid recipients in institutions]

. . . is properly regarded as discrimination based upon

disability.” Id. at 597. In Olmstead, as here, defendants

mounted a cost-based defense. The Supreme Court remanded the

case because the court of appeals had applied an unduly

restrictive interpretation of the fundamental-alteration defense.

Id. The Supreme Court went on to explain that a district court

considering a fundamental-alteration defense “must consider, in

view of the resources available to the State, not only the cost

of providing community-based care to the litigants, but also the

range of services the State provides others with mental

disabilities, and the State’s obligation to mete out those

services equitably.” Id. The Court further explained:

To maintain a range of facilities and to administer services with an even hand, the State must have more leeway than the courts below understood the fundamental-alteration defense to allow. I f , for example, the State were to demonstrate that it had a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the State’s endeavors to keep its institutions fully populated, the reasonable-modifications standard would be met. See

62 Tr. of Oral Arg. 5 (State’s attorney urges that, “by asking [a] person to wait a short time until a community bed is available, Georgia does not exclude [that] person by reason of disability, neither does Georgia discriminate against her by reason of disability”); see also id., at 25 (“[I]t is reasonable for the State to ask someone to wait until a community placement is available.”). In such circumstances, a court would have no warrant effectively to order displacement of persons at the top of the community- based treatment waiting list by individuals lower down who commenced civil actions.

Id. at 605-06 (footnote omitted).

As noted above, defendants argue that they are entitled to

summary judgment on Counts III and IV because they meet the

standard set in Olmstead. Plaintiffs contend that summary

judgment is precluded by genuine issues of material fact

concerning: (1) the reasonableness of the pace at which the

waiting list moves; and (2) the existence of a comprehensive,

effectively working plan for moving Medicaid recipients from the

waiting list to home and community-based placements. Because the

court agrees that there are genuine issues of material fact as to

defendants’ compliance with the rule established by Olmstead,

63 defendants’ motion for summary judgment is denied as to Counts

III and IV.

Conclusion

For the reasons given: (1) defendant’s motion for summary

judgment (document no. 19) is granted as to Counts I and V ,

denied as to Counts I I , III, IV, and VII, and moot as to Count

V I ; and (2) plaintiff’s motion for partial summary judgment

(document n o . 20) is granted as to Count VII, denied as to count

I I , and moot as to Count V I . Accordingly, this case shall

proceed to trial on Counts I I , I I I , and IV.

The Clerk of Court shall enter judgment in accordance with

this order. Trial is now set to begin at 9:00 a.m. on December

3 , 2001.

64 SO ORDERED.

Steven J. McAuliffe United States District Judge

October 2 3 , 2001

cc: Sheila O . Zakre, Esq. Suzanne M. Gorman, Esq.