The opinion of the court was delivered by: P. Kevin Castel, District Judge
Plaintiff Terri Casillas alleges that the New York State Commissioner of Health has deprived her of rights protected by the Constitution and federal law in denying her Medicaid coverage for surgeries and services necessary to treat her Gender Identity Disorder ("GID"). According to her complaint, "[i]n persons diagnosed with transsexualism or profound GID, sex reassignment surgery, along with hormone therapy and real-life experience, is a treatment that has proven effective." (Compl. ¶ 39.) Plaintiff alleges that gender reassignment surgeries are medically necessary in her case. (Id. ¶¶ 58-59.)
The New York State Department of Health ("DOH") has adopted a regulation that prohibits state Medicaid reimbursements for treatments for the "purpose of gender reassignment (also known as transsexual surgery)". 18 N.Y.C.R.R. § 505.2(1). Pursuant to this regulation, the DOH has denied Medicaid coverage to the plaintiff for gender reassignment-related treatments.
Plaintiff challenges New York's regulation as conflicting with federal law. Her claims are brought under 42 U.S.C. § 1983 and the Fourteenth Amendment. Richard F. Daines, the New York State Commissioner of Health, now moves for judgment on the pleadings under Rule 12(c), Fed. R. Civ. P. For the reasons outlined below, the motion is granted.
I. The Plaintiff's Allegations
Plaintiff is 48 years old, resides in the Bronx and is financially needy. She receives food stamps and Supplemental Security Income benefits, which is her sole source of income. (Compl. ¶¶ 41.) She is financially eligible for the state-administered Medicaid program.
Plaintiff was born a male but has "identified as a woman" since the age of 16. She has been "living as a woman" since the age of 20. (Id. ¶¶ 43-44.) In or about 1978, plaintiff was diagnosed with GID and began hormone therapy in order for her body to conform more closely to the gender with which she identified. (Id. ¶¶ 44-45.) "Ms. C developed breasts and her facial and body hair lessened so that she no longer needed to shave her facial hair. She developed a more traditionally female body with a smaller waist and larger fat pockets around the hips." (Id. ¶ 45.) As a result, "[h]er depression and sense of extreme unease about her body and gender dramatically lessened." (Id. ¶ 46.)
Plaintiff alleges that beginning in approximately 1980 Medicaid paid for the hormone treatment but terminated coverage in or around September 2004. (Id. ¶¶ 47-48.) From September 2004 until May 2006, she was able to continue the treatments on an intermittent basis by using a prescription drug discount plan, but she is no longer able to afford to continue the treatments. (Id. ¶¶ 49-51.) She has suffered fatigue, nausea and body tremors as a result of cessation of treatments. (Id. ¶ 52.) "Among other things, the size of Ms. C's breasts decreased and she developed hair on her breasts. Her voice deepened, and her skin became much rougher. Ms. C was horrified by these physical changes." (Id.)
In January 2007, plaintiff was examined by a medical doctor who is Professor and Chairman of Plastic and Reconstructive Surgery at the Philadelphia College of Osteopathic Medicine who has opined that hormones, orchiectomy and vaginoplasty are medically necessary to treat plaintiff's GID. (Id. ¶ 57.) This opinion is endorsed by plaintiff's current psychologist as well as by a prior treating psychiatrist. (Id. ¶ 58-59.)
II. New York's Regulation
After a notice and public comment period,*fn1 New York's DOH adopted a regulation disallowing reimbursement for services for gender reassignment treatments and services:
Payment is not available for the care, services, drugs or supplies rendered for the purpose of gender reassignment (also known as transsexual surgery) or any care, services, drugs or supplies intended to promote such treatment.
The DOH cited, among the reasons for adopting the regulation, the "responsibility both of allocating available resources and of assuring that services available to [Medicaid] recipients are safe and effective." 19 N.Y. Reg. 26 (July 16, 1997). It noted that "there may remain only one medical facility which continues to provide full scope of gender reassignment services." Id.
Also, in assessing public comments, the state agency observed that "there are equally compelling arguments indicating that gender reassignment, involving the ablation of normal organs for which there is no medical necessity because of underlying disease or pathology in the organ, remains an experimental treatment, associated with serious complications." 20 N.Y. Reg. 5 (Mar. 25, 1998). It noted that "there are serious questions about the long-term safety of administering testosterone and estrogen at therapeutic levels, required for the remainder of the life of the person who undergoes gender reassignment." Id.
Notably, the state's regulation does not restrict reimbursement for all treatments or services resulting from a diagnosis of GID. Only those "for the purpose of gender reassignment" are non-reimbursable.
III. Standard for Rule 12(c) Judgment on the Pleadings
The applicable legal standard for a Rule 12(c) motion is the same as a Rule 12(b)(6) motion to dismiss for failure to state a claim. SeeKing v. American Airlines, Inc., 284 F.3d 352, 356 (2d Cir. 2002). The Court must accept the complaint's allegations as true and draw all reasonable inferences in favor of the nonmoving party. See United States v. City of New York, 359 F.3d 83, 91 (2d Cir. 2004). "Complaints alleging civil rights violations must be construed especially liberally." Id. "[C]onclusory allegations or legal conclusions masquerading as factual conclusions" are not sufficient to defeat the motion. Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d 236, 240 (2d Cir. 2002) (quoting Gebhardt v. Allspect, Inc., 96 F.Supp.2d 331, 333 (S.D.N.Y. 2000)). Although the Court is limited to facts as stated in the complaint, it may consider exhibits or documents incorporated by reference without converting the motion into one for summary judgment. See, International Audiotext Network, Inc. v. American Telephone & Telegraph Co.,62 F.3d 69, 72 (2d Cir. 1995).
IV. Standard Governing a Section 1983 Action Seeking Enforcement of Rights Protected by Federal Statutes
The first three claims in the complaint are pled under section 1983, which provides in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . , subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law.
42 U.S.C. § 1983 (2008). Plaintiff alleges that Commissioner Daines is a person who acted under color of a state regulation, 18 N.Y.C.R.R. § 505.2(1), to deprive plaintiff of rights secured by three provisions of the federal Medicaid statute. 42 U.S.C. §§ 1396(a)(10)(A), 1396a(a)(10)(B)(i) and 1396a(a)(17).
Since 1980, it has been settled that section 1983 provides a remedy for a violation of rights protected by a federal statute. Maine v. Thiboutot, 448 U.S. 1 (1980) (claim for denial of welfare benefits under the Social Security Act). But not all violations of a federal statute by a state official are actionable under section 1983; plaintiff must show that a right secured by a federal statute has been violated. See Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 106 (1989). There is a three-factor test for determining whether a statute treats right that is capable of enforcement through a section 1983 action. Blessing v. Freestone, 520 U.S. 329, 340-41 (1997). See Loyal Tire & Auto Center, Inc. v. Town of Woodbury, 445 F.3d 136, 149-50 (2d Cir. 2006).
"First, Congress must have intended that the provision in question benefit the plaintiff." Blessing, 520 U.S. at 340. The Supreme Court clarified the meaning of this first element in Gonzaga University v. Doe, 536 U.S. 273 (2002). It expressly "reject[ed] the notion that our cases permit anything short of an unambiguously conferred right to support a cause of action brought under § 1983." Id. at 283. "[I]t is rights, not the broader or vaguer 'benefits' or 'interests,' that may be enforced under that section." Id.; NextG Networks of NY, Inc. v. City of New York, 513 F.3d 49, 52 (2d Cir. 2008). The inquiry under the first factor overlaps with that for determining whether a private right of action may be implied under a statute in that both inquiries require a showing that Congress intended to create a federal right. Gonzaga University, 536 U.S. at 283. For a statute to create a right enforceable either by way of private right of action or under section 1983, "its text must be 'phrased in terms of the persons benefited.'" Id. at 284 (quoting Cannon v. University of Chicago, 441 U.S. 677 (1979)). See also Rabin v. Wilson-Coker, 362 F.3d 190, 200 (2d Cir. 2004).
Under the second Blessing factor, "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." 520 U.S. at 340-41. This standard would be satisfied where "protections offered by the statute are clear and specific." Collier v. Dickinson, 477 F.3d 1306, 1310 (11th Cir. 2007). It would also be met if, for example, "[a] court can readily determine whether a state is fulfilling these statutory obligations by looking to sources such as a state's Medicaid plan, agency records and documents, and the testimony of Medicaid recipients and providers." Ball v. Rodgers, 492 F.3d 1094, 1115 (9th Cir. 2007).
The third Blessing factor would be met if "the statute . . . unambiguously impose[s] a binding obligation on the States." 520 U.S. at 341. "In other words, the provision giving rise to the asserted right must be couched in mandatory, rather than precatory, terms." Id.
"Once a plaintiff demonstrates that a statute confers an individual right, the right is presumptively enforceable by § 1983." Gonzaga, 536 U.S. at 284; see also Rabin v. Wilson-Coker, 362 F.3d at 201. But the inquiry does not end there. The "rebuttable presumption" in favor of the plaintiff may be overcome by demonstrating that Congress expressly or impliedly foreclosed a remedy under section 1983. Blessing, 520 U.S. at 341. Congress impliedly forecloses a remedy under section 1983 "by creating a comprehensive enforcement scheme that is incompatible with individual enforcement." Id.
Each of the three statutory provisions is pled in separate claims for relief and will be separately addressed. Preliminarily, this Court notes that other Circuits, post-Gonzaga, have found the existence of some right enforceable by way of section 1983 under section 1396a(a)(10)(A). See Watson v. Weeks, 436 F.3d 1152, 1161 (9th Cir. 2006) (right to be cared for in a nursing facility or receive an equivalent level of care in community settings for individuals with serious medical problems and cognitive limitations); Sabree ex rel. Sabree v. Richman, 367 F.3d 180 (3d Cir. 2004) (right to medical assistance for intermediate care facility services); S.D. ex rel. Dickson v. Hood, 391 F.3d 581 (5th Cir. 2004) (right to early and periodic screening, diagnostic, and treatment services).*fn2 One district court has found, under section 1396a(a)(10)(B), an unambiguously conferred right upon residents of El Paso to receive the same level of service as recipients in other parts of the state. Equal Access for El Paso, Inc. v. Hawkins, 428 F. Supp. 2d 585 (W.D. Tex. 2006), rev'd on other grounds, 509 F.3d 697 (5th Cir. 2007); see also Michelle P. ex rel. Deisenroth v. Holsinger, 356 F. Supp. 2d 763, 768 (E.D. Ky. 2005) (right under section 1396a(a)(10)(B) to receive community based residential Medical Assistance services). The Ninth Circuit has found that section 1396a(a)(17) does not unambiguously confer a right upon persons with serious ...