A.M.H., By and through her parent, P.H., et al., Plaintiffs, v. Thomas J. Hayes, in his capacity as Director of the Ohio Department of Job and Family Services, Defendant.

Case No. C2-03-778.United States District Court, S.D. Ohio, Eastern Division.
September 30, 2004

OPINION AND ORDER
GEORGE SMITH, District Judge

Both plaintiffs in this action are minors. Plaintiff A.M.H. proceeds by and through her parent, P.H. Plaintiff C.W. proceeds by and through her next friend, Ohio Legal Rights Services (“OLRS”), pursuant to 42 U.S.C. § 15041 and Ohio Revised Code (“ORC”) § 5123.60(G). Plaintiffs bring this action against defendant, Thomas J. Hayes, in his official capacity as Director of the Ohio Department of Job and Family Services (“ODJFS”), an agency of the State of Ohio. The Court has jurisdiction pursuant to 28 U.S.C. § 1331.

Plaintiff’s allege that Hayes, as Director, is responsible for ODJFS’s oversight of the Medicaid program in Ohio, and that ODJFS has violated several sections of Title XIX of the Social Security Act (“the Medicaid Act”), 42 U.S.C. § 1396 et seq., as well as Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq., in enforcing the Medicaid Act in Ohio. Plaintiffs seek various remedies for the alleged violations of the Medicaid Act through 42 U.S.C. § 1983.

Defendant purportedly moves to dismiss plaintiff’s complaint for failure to state a claim,

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pursuant to Fed.R.Civ.P. 12(b)(6). However, by his arguments, defendant moves only to dismiss plaintiffs’ claims under the Medicaid Act that pertain to their alleged entitlements regarding “community based services.” He avers that the language of the Medicaid Act does not create a private cause of action. Even if the Court finds that it does, however, defendant still moves to dismiss plaintiffs’ Medicaid Act claims involving plaintiffs’ alleged rights to community based services, on grounds that such services are not required under the Medicaid Act in Ohio. Defendant also moves to defer, or stay, this action to the extent that Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq., is involved until another case in this district concerning the same issues is resolved. For the reasons that follow, the Court GRANTS defendant’s motion to dismiss, and DENIES defendant’s motion to stay.

I. Facts A. Introduction
A.M.H. is a fourteen year-old. Physicians have diagnosed A.M.H. with Mental Retardation, Severe Tuberous Sclerosis, Seizure Disorder, recurrent Methicillin-Resistant Staphylococcus Aureus (“MRSA”) (a bacterial staphylococcus infection). A.M.H. is possibly Autistic as well. A.M.H. is eligible for Medicaid benefits.

P.H. is A.M.H.’s natural guardian. P.H. voluntarily admitted A.M.H. to Springview, a state operated intermediate care facility for the mentally retarded (“ICF/MR”) on October 28, 2002. P.H. agreed to a temporary placement at Springview for A.M.H for evaluation and assessment. The placement was to last for thirty to sixty days.

C.W. is a thirteen year-old. Physicians have diagnosed C.W. with Autism and Mental

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Retardation. C.W. is also non-verbal. C.W. is eligible for Medicaid benefits. C.W. also has significant behavioral issues, making a typical foster care placement inappropriate. Thus, C.W. has been in the custody of Shelby County Children’s Services (“SCCS”) since September 2002. SCCS admitted C.W. to Springview on September 26, 2002 for a thirty to sixty day evaluation and assessment period.

Both A.M.H. and C.W. received the initial screening required by Medicaid. The Interdisciplinary Teams and Dr. G. Thomas Fazio, the Medical Director at Springview, have indicated that the services and treatments discussed in the interdisciplinary assessments and recommendations are medically necessary.[1]

On August 27, 2003, P.H. removed A.M.H. from Springview and admitted A.M.H. to a private ICF/MR. C.W. remains at Springview.

B. Medicaid
Medicaid is a jointly funded cooperative program between the states and the federal government that provides federal funding to participating states to assist those states in providing medical assistance to low income persons and individuals with disabilities. See Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 502 (1990). See also 42 U.S.C. § 1396 et seq. State participation in the Medicaid program is voluntary, however, once a state elects to participate it must comply with certain requirements imposed by both the Act itself, and regulations promulgated by the Secretary (“the Secretary”) of Health and Human Services (“HHS”). Id. “[A] state must submit to the

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Secretary and have approved a `plan for medical assistance’ that contains a comprehensive statement describing the nature and scope of the State’s Medicaid program.” Id. (quoting § 1396a) (internal citation omitted). A state which fails to comply with its medical assistance plan risks a revocation of federal funding by the Secretary. Sabree, 367 F.3d at 182. The Medicaid act further provides that certain services may be provided at the option of the state. Id.

If a Medicaid eligible individual is younger than a certain age, as chosen by state, then the Medicaid Act mandates that early and periodic screening, diagnostic, and treatment services (“EPSDT”), as defined in § 1396d(r), be provided to that individual. 42 U.S.C. § 1396d(a)(4)(B).

Ohio participates in the Medicaid program. ODJFS is the state agency overseeing the medicaid program in Ohio, pursuant to O.R.C. § 5111.01 and O.A.C. § 5101:1-37-01. Ohio’s EPSDT program is called “HealthChek.” O.A.C. §§ 5101:3-14-01, 5101:3-13-22. HealthChek requires EPSDT be provided to eligible persons below the age of twenty.

II. Discussion A. Standard of Review
A motion to dismiss for failure to state a claim “should not be granted unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). All well-pleaded allegations must be taken as true and be construed most favorably toward the non-movant. Schuer v. Rhodes, 416 U.S. 232, 236 (1974). A 12(b)(6) motion to dismiss is directed solely to the complaint and any exhibits attached to it. Roth Steel Prod. v. Sharon Steel Corp., 705 F.2d 134, 155
(6th Cir. 1983). The merits of the claims set forth in the complaint are not at issue on a motion to dismiss for failure to state a

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claim. Consequently, a complaint will be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) only if there is no law to support the claims made, or if the facts alleged are insufficient to state a claim, or if on the face of the complaint there is an insurmountable bar to relief. See Rauch v. Day Night Mfg. Corp., 576 F.2d 857, 858 (6th Cir. 1976). Rule 12 (b)(6) must be read in conjunction with Fed.R.Civ.P. 8(a) which provides that a pleading for relief shall contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” 5A Wright Miller, Federal Practice and Procedure § 1356 (1990). The moving party is entitled to relief only when the complaint fails to meet this liberal standard. Id.

On the other hand, more than bare assertions of legal conclusions are required to satisfy the notice pleading standard Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436
(6th Cir. 1988). “In practice, a complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory.”Id. (emphasis in original, quotes omitted).

[W]e are not holding the pleader to an impossibly high standard; we recognize the policies behind rule 8 and the concept of notice pleading. A plaintiff will not be thrown out of court for failing to plead facts in support of every arcane element of his claim. But when a complaint omits facts that, if they existed, would clearly dominate the case, it seems fair to assume that those facts do not exist.

Id.

B. Defendant’s Motion to Stay Proceedings Pending the Outcome of Martin v. Taft, C2-89-362
Defendant moves that the Court “defer,” or stay, these proceedings insofar as the Americans with Disabilities Act is involved because another case pending in the Southern District of Ohio, Martin v. Taft, addresses the same issues.

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The Court notes that Martin v. Taft, Case No. C2-89-0362 (S.D. Ohio), is in the process of settlement, and likely will not proceed to trial. It is highly unlikely, therefore, that the Court, in Martin, will issue any opinions ruling on matters raised in the instant case. In this light, the Court finds that it would be pointless, and moreover, prejudicial to the plaintiffs, to stay these proceedings pending the outcome o Martin v. Taft. Defendant’s motion to stay is therefore denied.

C. Plaintiffs’ Causes of Action
Plaintiffs’ first three counts allege that defendants conduct violated several sections of the Medicaid Act. Those sections are as follows: 42 U.S.C. §§ 1396a(a)(8), (10)(B), (19), (43); 42 U.S.C. §§ 1396d(a)(19), (r)(5); and 42 C.F.R. §§ 440.240, 440.50. Plaintiffs’ allege in their fourth claim that the violations just enumerated deprived them of their rights under the Constitution and laws of the United States in violation of 42 U.S.C. § 1983. Defendant avers that no private right of enforcement, or private cause of action, exists by which plaintiffs’ may seek relief under the Medicaid Act in light of the Supreme Court’s recent decision in Gonzaga University v. Doe, 536 U.S. 273 (2002). Thus, a determination of whether a private cause of action is implied within the Medicaid Act or provided pursuant to § 1983 is the appropriate place to begin the analysis.

i. Gonzaga
“That plaintiffs merit sympathy does not escape [the Court’s] notice, but neither does it govern [the Court’s] reasoning. Rather, Gonzaga University provides the dispassionate lens through which this matter must be viewed.” Sabree v. Richman,
367 F.3d 180,183 (3d Cir. 2004).

The Supreme Court’s decision in Gonzaga has prompted discussion in courts across the

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country; it has forced courts to reassess all prior holdings as to whether or not Congress intended statutes that do not expressly provide a private cause of action, to nonetheless imply a private cause of action, or allow a cause of action under section 1983. Gonzaga was meant to clarify the Court’s position on, and the appropriate test for, this situation. While it seems to have done that to a great extent, some discord still exists, and some areas have not yet been addressed in light of Gonzaga,
including many subsections of the Medicaid Act.

The Court notes that, in light of Gonzaga, it cannot simply rely on Sixth Circuit precedent on the issue as announced i Westside Mothers v. Haveman, 289 F.3d 852 (6th Cir. 2002), a case decided before Gonzaga. Rather, the Court is required to carefully analyze the statutes at issue here to determine whethe Gonzaga has altered the holding in Westside Mothers.

Prior to Gonzaga, cases deciding whether a cause of action existed under § 1983 relied on the framework set forth i Blessing v. Freestone, 520 U.S. 329 (1997). Westside Mothers
was decided using the Blessing framework. Blessing espoused a three part analysis to determine whether a statute creates a right privately enforceable under § 1983: (1) The statutory section must show an intent “to benefit the putative plaintiff;” (2) The statute must set a “binding obligation on a government unit, as opposed to “merely expressing a congressional preference;” and (3) the interests asserted by a plaintiff must not be so “vague and amorphous” that enforcement of the statute “would strain judicial competence.” Westside Mothers, 289 F.3d at 862-63 (internal quotations omitted).

In Gonzaga, the Supreme Court rejected the notion tha Blessing “permit[s] anything short of an unambiguously conferred right. Gonzaga, 536 U.S. at 282. The Gonzaga Court indicated concern over the first factor of the Blessing
framework to the extent that many lower courts interprete Blessing to mean that a plaintiff may enforce a statute, under § 1983, if that plaintiff

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“falls within the general zone of interest that the statute intend[s] to protect; something less than what is required for a statute to create rights enforceable directly from the statute itself under an implied right of action.” Sanders v. Kansas Dep’t of Soc. and Rehab. Services, 317 F. Supp. 2d 1233, 1249
(D. Kansas 2004).

The Gonzaga Court noted, however, that Blessing clearly indicated that “only violations of rights, not laws,” give rise to § 1983 actions. Gonzaga, 536 U.S. at 283 (emphasis in original). The Court continued, explicitly rejecting any interpretation of Blessing suggesting that “implied right of action cases are separate and distinct from . . . § 1983 cases. To the contrary, [the Court’s] implied right of action cases should guide the determination of whether a statute confers rights enforceable under § 1983.” Id. While distinct inquiries differentiate the determination of implied causes from causes under § 1983, the Gonzaga Court noted that the two “inquiries overlap in one meaningful respect — in either case [a court] must first determine whether Congress intended to create a federal right.Id. at 284.

Thus, Gonzaga provides as follows: “For a statute to create such private rights, its text must be `phrased in terms of the persons benefitted.'” Id. (quoting Cannon v. University of Chicago, 441, U.S. 677, 692, n. 13 (1979). Other statutes have created individual rights “because those statutes are phrased “`with an unmistakable focus on the benefitted class.‘” Id.
(emphasis added). For example, the Court noted that it has found that Title VI, 42 U.S.C. § 2000d, provides a private right by the following language: “No person in the United States shall . . be subjected to discrimination under any program or activity receiving Federal financial assistance on the basis of race color or national origin.” Id. at 284, n. 3 (emphasis in original). Similarly, the Court noted that it had found that Title IX, 20 U.S.C. § 1681(a) provided a private right by the following language: “No person

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in the United States shall, on the basis of sex, . . . be subjected to discrimination under any education program or activity receiving federal financial assistance.” Id. (Emphasis in original). Such statutes are clearly “phrased in terms of,” and with “an unmistakable focus on,” the benefitted persons. The requirement of rights creating language seems to be the only significant alteration that Gonzaga has made to the Blessing
test.

The Court noted, however, that where a statute is phrased in such “explicit rights-creating language,” a plaintiff seeking relief under an implied right of action must still prove that congressional intent also provides a private remedy, while a plaintiff seeking relief under § 1983 need not. Id. This is in accord with the settled principle that § 1983 generally provides a remedy for suits properly within its ambit.

The Gonzaga majority concluded as follows: “In sum, if Congress wishes to create new rights enforceable under § 1983, it must do so in clear and unambiguous terms — no less and no more than what is required for Congress to create new rights enforceable under an implied private right of action.” Id.
at 290.

ii. Interpretation of the Medicaid Act
Plaintiffs’ rely on the following statutes and regulations in their argument: 42 U.S.C. §§ 1396a(8), 10(B), (19), (43); 42 U.S.C. §§ 1396d(r)(5), (a)(19); and 42 C.F.R. §§ 440.240, 440.50.[2]

§ 1396a(a)(8) provides as follows:

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A state plan for medical assistance must provide that all individuals wishing to make application for medical assistance under the plan shall have the opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible individuals.

Comparing this section to the rights providing statutes quoted in Gonzaga, the Court notes that the language is unmistakably focused on the individuals to be benefitted by the plan. The language also sets a binding requirement on the government and the rights available under the statute are not so vague and amorphous as to strain judicial competence. This section clearly indicates that anyone has the right to apply for Medicaid, and if deemed eligible, shall receive aid under Medicaid within a reasonably prompt time frame. The Court finds that 42 U.S.C. § 1396a(a)(8) creates a private right of enforcement for remedy under § 1983. See Sabree, 367 F.3d at 183-91 (holding that section 1396a(a)(8) confers a private right). But see M.A.C. v. Betit, 284 F. Supp. 2d 1298 (D. Utah 2003) (finding that neither the authorizing provision nor any other section of the Medicaid Act examined confers a private right).

§ 1396a(a)(10)(B) provides as follows:

A state plan for medical assistance must provide that the medical assistance made available to any individual described in subparagraph (A) — (i) shall not be less in amount, duration, or scope than the medical assistance made available to any other such individual, and (ii) shall not be less
in amount, duration, or scope than the medical assistance made available to individuals not described in subparagraph (A).

The Court finds, for the same reasons as above, that this section also creates a private cause of action. This section clearly indicates a requirement that various Medicaid recipients have a right to receive certain amounts of service relative to other recipients. It is counterintuitive to say that

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Congress will provide notice to persons of the level of aid they shall receive, but deny them the opportunity to remedy apparent deficiencies. It in no way strains judicial competence to find that this section provides a private cause of action. See Sabree, 367 F.3d at 183-91 (holding that section 1396a(a)(10) confers a private right).

§ 1396a(a)(19) provides as follows:

A state plan for medical assistance must 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.

Comparing this subsection to the rights granting statutes quoted in Gonzaga, the Court finds that the language falls short of creating a right. It appears, in large part, to be focused on the administrative aspects of the plan, or on the government, as opposed to on the recipients. While states are certainly obligated under this section to provide safeguards, precisely what is required is too vague and amorphous to grant a right of enforcement to the general public. It is more likely that this section was intended by Congress to prompt state legislatures and oversight agencies to discuss, determine, and implement appropriate safeguards. A finding that this subsection creates a private cause of action would, in the Court’s opinion, strain judicial competence. See Bruggeman ex rel. Bruggeman v. Blagojevich, 324 F.3d 906, 911 (7th Cir. 2003) (finding that section 1396a(a)(19) does not confer a private right or cause of action).

§ 1396a(43) provides, in relevant part, as follows:

A state plan for medical assistance must provide for —

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(A) informing all persons in the state who are under the age of 21 and who have been determined to be eligible for medical assistance including the services described in section 1396d(a)(4)(B) of this title, of the availability of early and periodic screening, diagnostic, and treatment services, as described in section 1396d(r) of this title and . . .,
(B) providing or arranging for the provision of such screening services in all cases where they are requested,
(C) arranging for (directly or through referral to appropriate agencies, organizations or individuals) corrective treatment, the need for which is disclosed by such child health screening services, and

(D) reporting to the secretary. . . .

The language of this subsection speaks clearly to the interests of the benefitted persons. It creates a right for those persons to be informed that they have been determined eligible for certain services, as well as a right to have the state provide or arrange for provision of such services in all cases where they are requested, presumably by the eligible person. A right to corrective treatment when such a need is disclosed by the screening services provided to the eligible person is also created. These rights are mandated by Congress; the states have no choice. The rights are not vague and amorphous. Despite that subparagraph (D) speaks in terms of the government’s administrative duties, the larger focus of this subsection is on the benefitted persons, thus, this subsection creates a private cause of action for remedies under § 1983.

§ 1396d(a)(19) provides, in relevant part, as follows:

For purposes of this subchapter —

(a) The term “medical assistance” means payment of part or all of the cost of the following care and services (if provided in or after the third month before the month in which the recipient makes application for assistance . . .) for individuals, and [to certain individuals in certain circumstances], who are —
(i) under the age of 21 . . ., but whose income and resources are insufficient to meet all of such cost —

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. . .

(19) case management services (as defined in section 1396n(g)(2) of this title). . . .

§ 1396d(r)(5) provides that:

the term “early and periodic screening, diagnostic, and treatment services” means the following items and services: Such other necessary health care, diagnostic services, treatment, and other measures described in subsection (a) of this section to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the State plan.

Subsections 1396d(a)(19) and 1396d(r)(5) are simply definitional. Although they do obligate the state in certain ways, they do not speak in terms of the benefitted persons in the same way as some of the other subsections examined, supra. They simply provide information to assist readers, whether government officials or medicaid recipients, in interpreting other sections of the statute incorporating the defined terms; they do not create private rights, or private causes of action, in the benefitted persons.

42 C.F.R. § 440.240 provides as follows:

Except as limited in § 440.250 — (a) The plan must
provide that the services available to any
categorically needy recipient under the plan are not less in amount, duration, and scope than those services available to a medically needy recipient; and (b) The plan must provide that the services available to any individual in the following groups are equal in amount, duration, and scope for all recipients within the group: (1) The categorically needy. (2) A covered medically needy group.

This section clearly speaks to, and provides a right to, the benefitted individual. It provides the recipient with knowledge that his or her benefits must be of a certain amount, duration, and

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scope. It seems illogical to assume that Congress would provide such knowledge to the individual, yet prevent them from acting in the case where they are slighted in the amount, duration, and scope of whatever services they are provided with. Such a tease would indeed be contrary to providing such individuals with assistance at all.

42 C.F.R. § 440.50 provides, in relevant part, as follows:

Physicians’ services,” whether furnished in the office, the recipient’s home, a hospital, a skilled nursing facility, or elsewhere, means services furnished by a physician — (1) Within the scope of practice of medicine or osteopathy as defined by state law; and (2) By or under the personal supervision of an individual licensed under State law to practice medicine or osteopathy.

This section, like 42 U.S.C. §§ 1396d(a)(19), (r)(5), is simply definitional and cannot be read to provide a private right of enforcement to a medicaid recipient. It seems to the Court that such definitional statutes may strengthen a party’s argument in certain circumstances, but do not, in and of themselves, provide an avenue to remedy.

Because the Court finds that many of the cited Medicaid statutes in this case do provide for a private cause of action, the question then becomes whether access to community based services is required under the Medicaid Act in Ohio.

D. Community Based Services Under The Medicaid Act
Plaintiffs aver that they are entitled to “community based services” under the Medicaid Act. They assert that 42 U.S.C. § 1396d(r)(5) makes the provision of such services mandatory. Defendant asserts that community based services fall under that section of the Medicaid Act that

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allows states to implement waiver programs, § 1396d(n)(c), and thus, that Ohio is not required to provide community based services to Medicaid recipients through other sections of the Medicaid Act. Defendant also asserts that community based services do not fall within the section of the Medicaid Act made mandatory by § 1396d(r)(5) because the Center for Medicaid and Medicare Services (“CMS”), the federal agency under the Department of Health and Human Services charged with overseeing Medicaid at the federal level has interpreted the Medicaid Act as such. Defendant asserts that as the oversight agency, CMS is entitled to deference in its interpretation, pursuant to Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

The Supreme Court, in Chevron, stated as follows:

When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue . . . the question for the court is whether the agency’s answer is based on a permissible construction of the statute.

Chevron U.S.A., 467 U.S. at 842-43. As defendant points out, the Supreme Court then revisited the issue in Auer v. Robbins, 519 U.S. 452 (1997), and confirmed the approach espoused i Chevron. In Auer, the Court quoted Chevron: “Because Congress has not `directly spoken to the precise question at issue,’ a court must sustain the Secretary’s approach so long as it is `based on a permissible construction of the statute.'”Id. at 457.

Here, it seems that plaintiffs’ argument focuses on the first of the two Chevron questions, while defendant’s argument focuses, primarily, on the second Chevron question. The Court will

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address the arguments in turn.

a. Congress 42 U.S.C. § 1396d(r)(5) states that EPSDT means, inter alia, “such other necessary health care, diagnostic services, treatment, and other measures described in subsection (a) of this section to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the state plan.” 42 U.S.C. § 1396d(r)(5) (emphasis added).

42 U.S.C. § 1396d(a) provides that “medical assistance” means payment of part or all of the cost of the following care and services. . . .” Subsection (a) goes on to list twenty-seven services. Of those twenty-seven services, only seven of those services are mandatory for adult Medicaid recipients. However, as the parties agree, all twenty-seven services must be provided to children eligible for Medicaid.

Plaintiffs aver that subsection (a)(19), one of the twenty-seven mandated services, is relevant to the case at bar. That section requires, in relevant part, provision of “case-management services (as defined in section 1396n(g)(2) of this title). . . .” 42 U.S.C. § 1396d(a)(19). Section 1396n(g)(2) provides that “[f]or purposes of this subsection the term case management services means services which will assist individuals eligible under the plan in gaining access to needed medical, social, educational, and other services.” This simply does not speak to the issue of whether community based services have been made mandatory by § 1396d(r)(5). Moreover, plaintiffs have not indicated, nor has the Court discovered, which other subsections of § 1396d(a) may indicate that community based services are mandatory per

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§ 1396d(r)(5). Thus, it is clear to the Court that “community based services” are not referred to by § 1396d(r)(5), but are addressed, explicitly, elsewhere in the statute.

Community based services are addressed, specifically, in § 1396n(c). “The Secretary may by waiver provide that a State plan approved under this subchapter may include as `medical assistance’ under such plan payment for part or all of the cost of home or community based services (other than room and board) approved by the secretary.” 42 U.S.C. § 1396n(c) (emphasis added). The language of the statute indicates the non-mandatory nature of community based services waivers. Moreover, § 1396n(c) does not refer to § 1396r, or § 1396d.[3]

The Medicaid Act provides that the state may apply for a waiver such that it may offer its Medicaid-eligible residents funding for particular services not otherwise covered under the Medicaid program. 42 U.S.C. § 1396n(b), (c). Such waiver programs are in addition to the requirements, and the optional portions, of the Medicaid Act. A state must submit an additional plan to the Secretary, and have that waiver plan approved before it may offer funding for such services to its Medicaid-eligible residents. Id.

Thus, the Court finds that Congress has indeed spoken to the precise question at issue. Though Congress could have referenced community based services in § 1396d(r)(5), as it referenced § 1396d(a), and thus, made them mandatory, Congress did not. Rather, Congress included a separate subsection within the Medicaid Act clearly making community based services optional.

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b. CMS
Even if the Court found that Congress had not spoken on the issue, defendant’s argument further supports the holding of the Court above. Indeed, even if the Court found that the statute was ambiguous as to whether or not § 1396d(r)(5) mandates community based services, the Court must defer to the interpretation given to the statute by CMS in accordance with Chevron.

CMS, as the oversight agency for Medicaid at the federal level, publishes various guides and manuals that explain Medicaid, including “The State Medicaid Manual.”[4] In the Med-Manual, CMS expressly stated that the services made mandatory by § 1396d(r)(5)[5] do not include home and community based services authorized by § 1396n(c),[6] simply because home and community based services are not included under § 1396d(a).[7] The Court finds this to be a permissible construction of the statute. Indeed, it is precisely the construction, albeit much more succinct, that the Court developed in its own analysis.

Based on the foregoing, the Court finds that the Medicaid Act does not make offering community based services mandatory, and thus, plaintiff’s can prove no set of facts in support of their claim that would allow the Court to order ODJFS to provide such services.

III. Disposition

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For all of the foregoing reasons, defendant’s motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) is granted in part, and denied in part.

Plaintiff’s claims arising under the Medicaid Act, 42 U.S.C. § 1396 et seq., are hereby dismissed with prejudice, insofar as they request that the Court order defendant to provide “community based services.”

The parties may proceed on all other issues.

The Clerk shall remove Doc. 7 from the Court’s pending motions list.

IT IS SO ORDERED.

[1] Presumably, it is in these assessments and recommendations that the physicians at Spring view state, as alleged by plaintiffs, that Springview is an inappropriate location for plaintiffs to remain on any long-term basis, and that the appropriate setting for plaintiffs is in a facility offering community based services.
[2] The Court notes that any emphasis in the quoted statutes below is added.
[3] The parties have not indicated, and the Court does not consider, whether or to what extent a waiver program exists in Ohio.
[4] Defendant provided the Court with a copy of the relevant portion of this manual that he obtained from the website of a private corporation. The Court, however, relies on the same manual as found on the website of CMS and HHS.
[5] Cross-referenced as § 1905(r)(E) of the SSA.
[6] Cross-referenced as § 1915(c) of the SSA.
[7] Cross-referenced as § 1905(a) of the SSA.