The opinion of the court was delivered by: Siragusa, J.
Plaintiff is a Medicaid recipient who claims that New York State's refusal to reimburse her potential expenses for gender reassignment surgery and electrolysis violates her constitutional rights. Defendant Richard Daines, Commissioner of New York State's Department of Health, has moved for judgment on the pleadings pursuant to Rule 12(c). For reasons discussed below, Defendant's motion is granted.
Plaintiff Morgana Ravenwood ("Plaintiff") is a Medicaid recipient, and resides in Rochester, New York. (Am. Compl. ¶ 43.) Plaintiff has received Medicaid since 1989. Id. Supplemental Security Income and food stamps are her only sources of income. Id. Although born a male, Plaintiff was diagnosed with gender identity disorder ("GID") in 1967 when she was five years-old, and "has identified as a woman since 1967." (Id. ¶¶ 45-47.) Since 1998 New York State's Medicaid program has paid for Plaintiff's hormonal treatment, voice therapy, water pills, medications related to gender reassignment, and mental health care to treat her GID. (Id. ¶ 51.) In 2001, after more than three decades of living as a woman, Plaintiff legally assumed a female name: Morgana Ravenwood. (Id. ¶ 53.) Plaintiff asserts that she is medically stable, yet she also claimsthat the procedures she seeks by this lawsuit are medically necessary to alleviate her suffering. (Id. ¶¶ 59, 57, 55.) Plaintiff contends that her physicians maintain that electrolysis and gender reassignment surgery are medically necessary.(Id. ¶¶ 57-58.) Plaintiff attached an unsworn letter from her doctor to the Complaint. This letter states in its pertinent part: "sexual reassignment surgery will greatly enhanceher overall mental health and well-being."
Plaintiff demands that Medicaid pay for both electrolysis to remove her facial hair, and for sex reassignment surgery. (Id. ¶¶ 54-55.) Plaintiff alleges that it is highly unfair that the New York State Department of Health ("DOH") does not pay for these procedures. The DOH's Medicaid statute provides that "[p]ayment is not available for the care, services, drugs for the purpose of gender reassignment (also known as transsexual surgery) or any care, services, drugs or supplies intended to promote such treatment." 18 N.Y.C.R.R. § 505.2(l).
Pursuant to this regulation, the DOH has denied Plaintiff further Medicaid coverage for gender reassignment-related treatments. In response, Plaintiff has filed the subject suit against Richard F. Daines, Commissioner of the New York State Department of Health, ("Commissioner Daines") in his official capacity.
Plaintiff asserts that § 505.2(l) conflicts with federal law. Her claims are brought under 42 U.S.C. § 1983 and the Fourteenth Amendment. She asks that this Court issue a permanent injunction ordering Commissioner Daines to provide her with all care, services, drugs, and supplies prescribed by her physicians for the purpose of gender reassignment, and for this Court to issue another injunction ordering him to rescind*fn1 18 N.Y.C.R.R. § 505.2(l). (Am. Compl. ¶ (a)(i).)*fn2
When "deciding a Rule 12(c) motion, we apply the same standard as that applicable to a motion under Rule 12(b)(6)." Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999), cert. denied, 531 U.S. 1052, (2000). The U.S. Supreme Court standard for a 12(b)(6) motion is clear:
Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests. While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Under Twombly, the relevant question is whether, assuming the factual allegations are true, the plaintiff has stated a ground for relief that is plausible." Ashcroft v. Iqbal, ___ U.S. ___,129 S.Ct. 1937, 1959 (2009).
A district court must accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving party. Burnette, 192 F.3d at 56. Under Rule 12(c), the Court does not need to "accept conclusory allegations or legal conclusions masquerading as factual conclusions."Rolon v. Henneman, 517 F.3d 140, 149 (2d. Cir. 2008) (internal citations and quotations omitted).
The Southern District of New York recently dismissed a case-Casillas v. Daines, 580 F. Supp.2d 235 (S.D.N.Y. 2008)-on a Rule 12(c) motion that involved the same defendant, the same legal issues, and facts which are almost identical to those before the Court. In granting Commissioner Daines's 12(c) motion, the Southern District held that he did not violate a transsexual's right to equal protection, when, pursuant to 18 N.Y.C.R.R. § 505.2(l), he refused to reimburse her for sex reassignment surgery. Id. Plaintiff distinguishes her case from Casillas on the factual grounds that Medicaid has paid for Plaintiff's hormonal treatment, voice therapy, water pills, medications related to gender reassignment, and mental health care, whereas the plaintiff in Casillas only received hormonal treatment from Medicaid. (Def.'s memo 2.)*fn3 Plaintiff does not, however, explain how these facts change the legal analysis.
Plaintiff not only asserts the same legal claims as in Casillas against the same defendant, but Plaintiff has also adopted and incorporated Terri Casillas's complaint and Casillas's memorandum against Commissioner Daines's 12(c) motion.*fn4 Id. Since Plaintiff has raised the same legal issues against the same defendant, this Court finds that the legal analysis from the Casillas case is similarly applicable. Although normally this Court would be disinclined to quote so extensively from another decision as it does below, it is difficult to improve upon Judge Castel's thoughtful and thorough explanation and analysis of this area of constitutional law, with which this Court concurs. With respect to the first two § 1983 causes of action, Judge Castel explained:
IV.*fn5 Standard Governing a § 1983 Action Seeking Enforcement of Rights Protected By Federal Statutes*fn6 The first three claims in the complaint are pled under § 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[, suit in equity, or other proper proceeding for redress ....]*fn7
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(l), 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 § 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 § 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 [a] right that is capable of enforcement through a § 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 § 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 § 1983. Blessing, 520 U.S. at 341. Congress impliedly forecloses a remedy under § 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 § 1983 under § 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 § 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 § 1396a(a)(10)(B) to receive community based residential Medical Assistance services). The Ninth Circuit has found that § 1396a(a)(17) does not unambiguously confer a right upon persons with serious medical problems and cognitive limitations to the same care in a nursing facility as in a community setting. Watson v. Weeks, 436 F.3d at 1162. One judge of this [Circuit] has found that § 1396a(a)(17) conferred a right upon a morbidly obese individual to a seat-lift chair. Bordello v. Novello, No. 02-CV-7946, Order, Docket # 24, (KMW) (S.D.N.Y. Mar. 24, 2004).
FN2. Several pre-Gonzaga courts have also found enforceable rights under §1396a(a)(10). See Westside Mothers v. Haveman, 289 F.3d 852 (6th Cir. 2002); Pediatric Specialty Care, Inc. v. Ark. Dep't of Human Servs., 293 F.3d 472 (8th Cir. 2002); Miller v. Whitburn, 10 F.3d 1315 (7th Cir. 1993).
Whether a statute unambiguously confers a right is not a binary question. The statute may confer a right of some type upon some class of persons without conferring the particular right asserted by the plaintiff in suit. "It [is] incumbent upon [the party] to identify with particularity the rights they claimed, since it is impossible to determine whether [the statute], as an undifferentiated whole, gives rise to undefined 'rights.' " Blessing, 520 U.S. at 342. "Only when the complaint is broken into manageable analytic bites can a court ascertain whether each separate claim satisfies the various criteria we have set forth for determining whether a federal statute creates rights." Id.
In assessing whether the Blessing and Gonzaga standards are met, plaintiff urges that this Court take account of certain regulations, 42 C.F.R. §§ 440.210, 440.230(c) and 440.240(b), that implement and interpret the three statutory sections. The defendant similarly asks the Court to take account of a regulation which permits state plans to place "appropriate limits" on services. 42 C.F.R. § 440.230(d). Each of the regulations were promulgated pursuant to a broad authority to "make and publish such rules and regulations, not inconsistent with this ...