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Harry Davis, et al v. Nirav Shah

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK


May 2, 2012

HARRY DAVIS, ET AL., PLAINTIFFS
v.
NIRAV SHAH, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF HEALTH, DEFENDANT

The opinion of the court was delivered by: Charles J. Siragusa United States District Judge

DECISION AND ORDER

INTRODUCTION

This is an action brought by Medicaid recipients to challenge New York State's decision to provide Medicaid payment for prescription footw ear and compression stockings for certain medical conditions but not others. Specifically, Plaintiffs challenge New York State Social Services Law § 365-a(2)(g)(iii), w hich provides Medicaid payment only for prescription footw ear " used as an integral part of a low er limb orthotic appliance, as part of a diabetic treatment plan, or to address grow th and development problems in children," and Social Services Law § 365-a(2)(g)(iv), w hich provides Medicaid payment only for compression stockings " for pregnancy or treatment of venous stasis ulcers." Plaintiffs suffer from a variety of other illnesses that require the use of prescription footw ear or compression stockings, for w hich New York's Medicaid program previously provided coverage, but w hich are not covered by the above-quoted statutory provisions. Subsequent to Social Services Law § § 365-a(2)(g)(iii) & (iv) taking effect in 2011, Plaintiffs learned that their prescription shoes and compression stockings w ere no longer covered for their medical conditions, w hen they attempted to fill prescriptions for those items and w ere told by their medical suppliers that such items are now excluded from coverage. Prior to that, Plaintiffs had no notice of the change in coverage. Now before the Court is an application by three plaintiffs, Harry Davis (" Davis" ), Rita-Marie Geary (" Geary" ) and Patty Poole (" Poole" ) (collectively " Plaintiffs" ), for a preliminary injunction directing the New York State Department of Health to pay for their prescription shoes and compression stockings pending a resolution of their claims. The application is granted.

BACKGROUND

New York State participates in Medicaid, w hich " is a jointly funded Federal and state medical assistance program that w as established by Title XIX of the Social Security Act [(" SSA" )] (42 USC §§ 1396 et seq.)." Jennings v. Commissioner, N.Y.S. Dept. of Social Servs., 71 A.D.3d 98, 114, 893 N.Y.S.2d 103, 115 (2d Dept. 2010). In that regard, Title XIX of the Social Security Act, 42 U.S.C. [ §§ ] 1396 [et seq.], authorizes each state to participate in a cooperative federal-state program for medical assistance to the needy, know n as Medicaid, and to operate a medical assistance plan, subject to federal statutory and regulatory guidelines. If a state chooses to participate, it must adopt a statutory plan setting forth the coverage to be extended to recipients, including the terms upon w hich individuals w ill be eligible and it must extend benefits to those w ho are eligible for federally-funded financial assistance, such as recipients of Supplementary Security Income (SSI) for the aged, blind and disabled, know n as the " categorically needy." Caldw ell v. Blum, 621 F.2d 491, 494 (2d Cir. 1980).

For purposes of this Decision and Order it is undisputed that Plaintiffs are categorically needy persons, and that 42 U.S.C. § 1396a(a)(10)(A) and 42 U.S.C. § 1396d(a)(4) together require participating states to provide such persons w ith " medical assistance," including " nursing facility services." Furthermore, 42 U.S.C. § 1396a(a)(10)(D) requires participating states to provide " home health services" to any person entitled to receive " nursing facility services." Thus, New York is required to provide Plaintiffs w ith " home health services," among other things. See, 42 C.F.R. § 440.210(a)(1) and 42 C.F.R. § 440.70. Home health services include " [m]edical supplies, equipment, and appliances suitable for use in the home." 42 C.F.R. § 440.70(b)(3). For purposes of the instant Decision and Order, it is undisputed that prescription footw ear and compression stockings qualify as " medical supplies, equipment [or] appliances suitable for use in the home."

Title XIX requires states to establish " reasonable standards" for determining eligibility for medical assistance. See, 42 U.S.C.A. § 1396a(a)(17) (West 2012). Title XIX also contains a " comparability requirement," w hich provides that " the medical assistance made available to any individual . . . shall not be less in amount, duration, or scope than the medical assistance made available to any other such individual[.]" 42 U.S.C.A. § 1396a(a)(10)(B)(I) (West 2012); see also, 42 C.F.R. § 440.240. Moreover, Title XIX's regulations further w arn that state Medicaid programs " may not arbitrarily deny or reduce the amount, duration, or scope of a required service under §§ 440.210 and 440.220 to an otherw ise eligible recipient solely because of the diagnosis, type of illness, or condition," but " may place appropriate limits on a service based on such criteria as medical necessity or on utilization control procedures." 42 C.F.R. § 440.230(c)&(d).

New York's statutory plan for providing " medical assistance for needy persons" under the Medicaid program is set forth in Article 5, Title 11 of the New York Social Services Law (" NY Soc. Serv. Law " ), § 363 et seq. The instant case involves NY Soc. Serv. Law § 365-a(2)(g)(iii) & (iv), w hich purports to limit payments for prescription footw ear and compression stockings. Specifically, the statute states, in pertinent part:

2. " Medical assistance" shall mean payment of part or all of the cost of medically necessary medical, dental and remedial care, services and supplies, as authorized in this title or the regulations of the department, w hich are necessary to prevent, diagnose, correct or cure conditions in the person that cause acute suffering, endanger life, result in illness or infirmity, interfere w ith such person' s capacity for normal activity, or threaten some significant handicap and w hich are furnished an eligible person in accordance w ith this title and the regulations of the department. Such care, services and supplies shall include the follow ing medical care, services and supplies, together w ith such medical care, services and supplies provided for in subdivisions three, four and five of this section, and such medical care, services and supplies as are authorized in the regulations of the department:

(g) . . . (iii) prescription footw ear and inserts are limited to coverage only w hen used as an integral part of a low er limb orthotic appliance, as part of a diabetic treatment plan, or to address grow th and development problems in children; and (iv) compression and support stockings are limited to coverage only for pregnancy or treatment of venous stasis ulcers;

McKinney's Soc. Serv. L. § 365-a(2)(g)(iii) & (iv) (West 2012) (emphasis added). The accompanying state regulations do " not allow exceptions to defined benefit limitations" concerning orthopedic footw ear and compression stockings:

(g) Benefit limitations. The department shall establish defined benefit limits for certain Medicaid services as part of its Medicaid State Plan. The department shall not allow exceptions to defined benefit limitations. The department has established defined benefit limits on the follow ing services: (1) Compression and surgical stockings are limited to coverage during pregnancy and for venous stasis ulcers. (2) Orthopedic footw ear is limited to coverage in the treatment of children to correct, accommodate or prevent a physical deformity or range of motion malfunction in a diseased or injured part of the ankle or foot; in the treatment of children to support a w eak or deformed structure of the ankle or foot; as a component of a comprehensive diabetic treatment plan to treat amputation, ulceration, pre-ulcerative calluses, peripheral neuropathy w ith evidence of callus formation, a foot deformity or poor circulation; or to form an integral part of an orthotic brace. 18 NYCRR § 505.5(g)(1) & (2).

Plaintiffs do not suffer from the conditions covered by Soc. Serv. L. § 365-a(2)(g)(iii) & (iv) or 18 NYCRR § 505.5(g). Instead, Plaintiffs suffer from conditions including multiple sclerosis, paraplegia, lymphedema, cellulitis, psoriatic arthritis,and trans-metatarsal amputation, for w hich their doctors have prescribed either orthopedic footw ear or compression stockings. Complaint [#1] at ¶ ¶ 2-7. For purposes of the subject motion, it is undisputed that,

[w ]ithout these medically necessary treatments, [Plaintiffs] face a high likelihood of hospitalizations to address life-threatening infections and other preventable conditions. As a result of Defendant's policy and regulation, [Plaintiffs] are likely to be institutionalized in nursing homes and rehabilitation centers in order to be treated for the very conditions the eliminated items w ould have prevented at much low er cost. Complaint [#1] at ¶ 11.*fn1

On March 14, 2012, Plaintiffs commenced the instant action. Plaintiffs maintain that Soc. Serv. L. § 365-a(2)(g)(iii) & (iv) or 18 NYCRR § 505.5(g) " violate federal Medicaid and disability discrimination law s." Complaint [#1] at ¶ 12. In that regard, Plaintiffs contend that the restrictions violate specific provisions of Title XIX, the Americans With Disabilities Act (" ADA" ), and Section 504 of the Rehabilitation Act (" Section 504" ). Plaintiffs maintain that New York State has violated four separate aspects of Title XIX: 1) the " reasonable standards" provision, 42 U.S.C. § 1396(a)(17); 2) the " comparability requirement," 42 U.S.C. § 1396a(a)(10)(B); 3) the requirement to provide home health services, 42 U.S.C. § § 1396a(a)(10)(A), 1396a(a)(10)(D) and 1396d(a)(4); and 4) the due process requirement, 42 U.S.C. § 1396a(a)(3). Plaintiffs further contend that the challenged provisions discriminate against them on the basis of disability, in violation of the ADA and Section 504. The action seeks declaratory and injunctive relief, attorney's fees, costs and disbursements. Defendant has filed an Answ er [#13] w ith a number of affirmative defenses. As one affirmative defense, Defendant contends that the claims raised under Title XIX " do not provide for a right of action pursuant to either [42 U.S.C.] § 1983 or the 'supremacy clause' of the U.S. Constitution." Answ er [#13] at p. 4.

On March 27, 2012, Plaintiffs filed the subject application for preliminary injunctive relief [#8].*fn2 Although the Complaint does not mention the statute, Plaintiffs contend in their moving papers that their claims under Title XIX arise under Section 1983, as w ell as the Supremacy Clause. See, [#8-1] at ¶ 3. In support of the application, Plaintiffs maintain that they w ill suffer irreparable harm if Defendant is not required to provide them w ith orthopedic shoes and compression stockings. More specifically, Plaintiffs contend that the items are necessary to prevent problems such as sw elling, infections and blood clots, w hich could lead to infection and even death, or w hich could result in Plaintiffs being placed into w heelchairs and/or nursing homes. Plaintiffs argue that the denial of Medicaid benefits under these circumstances is per se irreparable harm.

Additionally, Plaintiffs contend that they are likely to succeed on the merits of their claims. And finally, Plaintiffs state that providing the shoes and stockings w ould not impose a hardship on Defendant.

In opposition to the motion, Defendant first contends that the Court should not grant the relief requested, since it w ould involve ordering mandatory relief, as opposed to merely preserving the status quo.

Alternatively, Defendant maintains that the Court should deny the application because Plaintiffs have not show n that they are likely to succeed on the merits. On this point, Defendant argues that Plaintiffs' first three claims brought under Title XIX cannot succeed, since neither Section 1983 nor the Supremacy Clause provides a private right of action under the specific sections of law upon w hich Plaintiffs rely. (Namely, the " reasonable standards" provision, 42 U.S.C. § 1396(a)(17), the " comparability requirement," 42 U.S.C. § 1396a(a)(10)(B) and the requirement to provide home health services, 42 U.S.C. § § 1396a(a)(10)(B), 1396a(a)(10)(D) and 1396d(a)(4)).

Defendant further contends that Plaintiffs' fourth claim under Title XIX, the procedural due process claim brought pursuant to 42 U.S.C. § 1396a(a)(3), cannot succeed since " the public's 'notice' or aw areness of the proposed changes [to New York's Medicaid law concerning prescription footw ear and compression stockings] w as accomplished in the political process accompanied by the bill's passage through the state legislature." Def. Memo of Law [#11] at 4 (citing Himes v. Sullivan, 806 F.Supp. 413 (W.D.N.Y. 1992)). Defendant also argues that Plaintiffs' ADA and Section 504 discrimination claims lack merit.

On April 20, 2012, counsel for the parties appeared before the undersigned for oral argument.

DISCUSSION

The standard to be applied w hen considering an application for preliminary injunctive relief is w ell settled:

A party seeking a preliminary injunction ordinarily must show : (1) a likelihood of irreparable harm in the absence of the injunction; and (2) either a likelihood of success on the merits or sufficiently serious questions going to the merits to make them a fair ground for litigation, w ith a balance of hardships tipping decidedly in the movant' s favor. Doninger v. Niehoff, 527 F.3d 41, 47 (2d Cir. 2008) (citations omitted). Moreover, w here [as here,] a preliminary injunction is sought against government action taken in the public interest pursuant to a statutory or regulatory scheme, the less-demanding " fair ground for litigation" standard is inapplicable, and therefore a " likelihood of success" must be show n.

This higher standard reflects judicial deference tow ard legislation or regulations developed through presumptively reasoned democratic processes. An even more rigorous standard-requiring a " clear" or " substantial" show ing of likelihood of success-applies w here " (i) an injunction w ill alter, rather than maintain, the status quo, or (ii) an injunction w ill provide the movant w ith substantially all the relief sought and that relief cannot be undone even if the defendant prevails at a trial on the merits.

Forest City Daly Housing, Inc. v. Tow n of North Hempstead, 175 F.3d 144, 149-150 (2d Cir. 1999) (citations and internal quotations omitted).

At the outset, the Court disagrees w ith Defendant, both as to w hether Plaintiffs are seeking a return to the status quo, and as to w hether the relief being sought is a mandatory injunction. First, a return to the status quo ante does not merely refer to the point immediately prior to the law suit, but refers to the point prior to the parties' dispute arising. See, e.g., Asa v. Pictometry Intern. Corp., 757 F.Supp.2d 238, 243 (W.D.N.Y. 2010) (" [T]he court' s task w hen granting a preliminary injunction is generally to restore, and preserve, the status quo ante, i.e., the situation that existed betw een the parties immediately prior to the events that precipitated the dispute. The 'status quo' to be preserved by a preliminary injunction is the last actual, peaceable uncontested status w hich preceded the pending controversy." ) (citations omitted). Here, the status quo ante w ould be the point in time prior to the challenged statute taking effect, w hen New York still paid for Plaintiffs' orthopedic shoes and compression stockings. See, LaRouche v. Kezer, 20 F.3d 68, 74 (2d Cir. 1994) (" To preserve the status quo a court may require the parties to act or to refrain from acting. For example, in Christopher P.[v. Marcus, 915 F.2d 794, 804--05 (2d Cir.1990), cert. denied, 498 U.S. 1123, 111 S.Ct. 1081, 112 L.Ed.2d 1186 (1991)] the TRO that " simply preserve[d] the status quo" directed the State of Connecticut to readmit plaintiff to its school for mentally disturbed children after having discharged him. 915 F.2d at 805." (footnote omitted).

Furthermore, the Court view s the injunction being sought as prohibitory, rather than mandatory, since it merely seeks to restore and maintain the relationship that existed betw een the parties prior to the enactment of the challenged statute. See, Phillip v. Fairfield Univ., 118 F.3d 131, 133-134 (2d Cir. 1997) (Preliminary injunction that required NCAA to reverse its disciplinary sanction and allow student athlete to play basketball and receive scholarship during pendency of action w as prohibitory, not mandatory, since it permitted the student and university to continue the relationship that they had prior to the NCAA intervening). Nor, as this Court explained during oral argument, w ould the granting of the application provide Plaintiffs w ith all of the relief that they seek in this action, w hich could not be undone if Defendant w as to ultimately prevail. See, id. Accordingly, Plaintiffs are not required to make the more demanding show ing required w hen seeking a mandatory injunction.

Turning to the merits of the application, Defendant does not contend that Plaintiffs have failed to demonstrate irreparable harm, nor does he dispute Plaintiffs' contention that the balance of hardships tips strongly in their favor. Accordingly, the issue for the Court is whether Plaintiffs have demonstrated a likelihood of success on the merits of their claims. Although Plaintiffs have asserted several different causes of action, they only need to demonstrate a likelihood of success on one of them in order to obtain the relief they seek. See, Eve of Milady v. Impression Bridal, Inc., 957 F.Supp. 484, 487 (S.D.N.Y. 1997) ("Where a plaintiff seeks a preliminary injunction and asserts multiple claims upon which the relief may be granted, the plaintiff need only establish a likelihood of success on the merits on one of the claims.") (citation omitted).

Arguably, Plaintiffs' strongest claim is their Section 1983 claim to enforce 42 U.S.C. § 1396a(a)(10)(D), which, as discussed earlier, requires participating states to provide home health services, including medical equipment, to categorically needy Medicaid recipients.*fn3 Specifically, that section states: "A state plan for medical assistance must . . . provide . . . for the inclusion of home health services for any individual who, under the State plan, is entitled to nursing facility services[.]" 42 U.S.C.A. § 1396a(a)(10)(D) (West 2012). Plaintiffs are entitled to nursing facility services, and therefore they are covered by § 1396a(a)(10)(D). Simply put, Plaintiffs maintain that prescription footwear and compression stockings are medically necessary medical equipment which the State of New York is required to provide to them under § 1396(a)(10)(D) and 42 C.F.R. § 440.210(a)(1) ("A State plan must specify that, at a minimum, categorically needy recipients are furnished the following services: (1) The services defined in § . . . 440.70 [home health services.]")

42 C.F.R. § 440.230 indicates that, as to services for the categorically needy that a state is required to provide, such as home health services, "[t]he [state] agency may place appropriate limits on a service based on such criteria as medical necessity or on utilization control procedures." 42 C.F.R. § 440.230(d). However, that same regulation indicates that "[e]ach service must be sufficient in amount duration, and scope to reasonably achieve its purpose," and further states that "[t]he [state] Medicaid agency may not arbitrarily deny or reduce the amount, duration, or scope of required service under § § 440.210 and 440.220 to an otherwise eligible recipient solely because of the diagnosis, type of illness, or condition." 42 C.F.R. § 440.230 § § (b)&(c). Plaintiffs maintain that the services they are receiving are not sufficient, and that they are being arbitrarily denied services because of their types of illness.

From the foregoing, it appears that Plaintiffs have demonstrated a likelihood of success on their claim under § 1396a(a)(10)(D), since they are being denied coverage of medically-necessary equipment on the basis of their particular illness, w ithout any opportunity to request an exception.

Defendant, though, contends that Plaintiffs do not have a right to bring a private action pursuant to Section 1983 under § 1396a(a)(10). See, Def. Memo of Law [#11] at pp. 3-4. On this point, Defendant cites Casillas v. Daines, 580 F.Supp.2d 235 (S.D.N.Y. 2008), Ravenwood v. Daines, No. 06-CV-6355-CJS, 2009 WL 2163105 (W.D.N.Y. Jul. 17, 2009) (Siragusa, J.) and Lankford v. Sherman, 451 F.3d 496 (8th Cir. 2006). In each of those cases, courts found that the plaintiff did not have a right to sue under Section 1983 to enforce a provision of Title XIX. However, those cases are factually inapposite.*fn4

Moreover, the Court has considered this issue under the relevant principles set forth in Blessing v. Freestone, 520 U.S. 329, 340-41 (1997) and Gonzaga Univ. v. Doe, 536 U.S. 273 (2002), and finds that 42 U.S.C. § 1396a(a)(10)(D) does provide a private right to sue under Section 1983. The relevant standards are clear:

The Supreme Court . . . clarified, in Gonzaga University v. Doe, 536 U.S. 273, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002), the inquiry that courts must undertake to determine whether a statute creates rights enforceable under § 1983. The Court in Gonzaga explained that only " rights, not the broader or vaguer 'benefits' or 'interests,' ... may be enforced under the authority of that section." Id. at 283, 122 S.Ct. 2268; see also Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997) ("In order to seek redress through § 1983, ... a plaintiff must assert the violation of a federal right, not merely a violation of federal law."). The Court stated that the inquiry requires "a determination as to whether or not Congress intended to confer individual rights upon a class of beneficiaries" and that, "where the text and structure of a statute provide no indication that Congress intends to create new individual rights," there is no basis for a suit under § 1983. Gonzaga, 536 U.S. at 285-86, 122 S.Ct. 2268.

The Supreme Court's decision in Blessing, 520 U.S. 329, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997), as clarified in Gonzaga, provides three traditional factors that courts consider in determining whether statutory language is rights-creating. " 'First, Congress must have intended that the provision in question benefit the plaintiff.' " Wachovia Bank, 414 F.3d at 321 (quoting Blessing, 520 U.S. at 340, 117 S.Ct. 1353). That is, we must look to whether the statutory text is " 'phrased in terms of the persons benefited.' " Gonzaga, 536 U.S. at 284, 122 S.Ct. 2268 (quoting Cannon v. Univ. of Chi., 441 U.S. 677, 692 n. 13, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979)). " '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. Third, the statute must unambiguously impose a binding obligation on the States.' " Wachovia, 414 F.3d at 321-22 (quoting Blessing, 520 U.S. at 340-41, 117 S.Ct. 1353 (internal citations and quotation marks omitted)).

Loyal Tire & Auto Ctr., Inc. v. Town of Woodbury, 445 F.3d 136, 149-150 (2d Cir. 2006). Moreover, if after applying those factors the court finds that the right is enforceable under Section 1983, this is only a presumption, which the defendant may rebut by demonstrating that Congress has foreclosed a remedy under Section 1983:

[E]ven where it can be demonstrated that a particular federal statute establishes an individual right, there is only a rebuttable presumption that the right is enforceable under § 1983. Because the inquiry focuses on congressional intent, dismissal is proper if Congress specifically foreclosed a remedy under § 1983. Congress may do so expressly, by forbidding recourse to § 1983 in the statute itself, or impliedly, by creating a comprehensive enforcement scheme that is incompatible with individual enforcement under § 1983.

Morris-Hayes v. Board of Educ. of Chester Union Free School Dist., 423 F.3d 153, 159 (2d Cir. 2005) (citing Blessing v. Freestone, 520 U.S. at 340-41) (internal quotation marks omitted).

Applying all of the relevant factors, the Court finds that 42 U.S.C. § 1396a(a)(10)(D) provides an enforceable right to sue under Section 1983. The statute categorically states that "individual" categorically-needy Medicaid recipients are entitled to home health services under any state Medicaid plan. The statute is therefore phrased in terms of the persons benefited, and unambiguously imposes a binding obligation on states that participate in the Medicaid program.

Moreover, the statute is not so vague and amorphous that its enforcement would strain judicial competence. As to this conclusion, Defendant presumably disagrees, since he cites this Court's prior decision in Ravenwood, in which the Court found, inter alia, that there was no private right to sue under Section 1983 to enforce 42 U.S.C. § 1396a(a)(10)(A). The plaintiff in Ravenwood claimed that the State of New York was violating § 1396a(a)(10)(A), because New York's Medicaid law expressly prohibited payment for "gender reassignment (also known as transsexual surgery)."

In Ravenwood, this Court found that § 1396a(a)(10)(A) did not grant a private right to sue under Section 1983 for such surgery, in part because, as discussed above, 42 C.F.R. § 440.230(d) permits states to place unspecified "appropriate limits" on services, which, the Court found, rendered § 1396a(a)(10)(A) "vague and amorphous." Ravenwood, 2009 WL 2163105 at *7 (quoting Casillas v. Daines). Section 1396a(a)(10)(A) and § 1396a(a)(10)(D) are substantially similar, and both are interpreted in light of 42 C.F.R. § 440.230(d).

Nevertheless, to the extent that Defendant maintains that the Court's decision today is inconsistent with Ravenwood (and Casillas, both of which involved a claim for transsexual surgery under § 1396a(a)(10)(a)), the Court disagrees, since those cases involved radically different sets of facts. For example, Plaintiffs here are seeking medical equipment that is readily provided to some but not all categorically needy persons under the state law , w hile the plaintiffs in Ravenw ood and Casillas w ere seeking sex reassignment surgery that w as not provided to anyone under the state medicaid law . Other courts have upheld a state's decision to exclude sex reassignment surgery from Medicaid coverage. See, Smith v. Rasmussen, 249 F.3d 755, 761 (8th Cir. 2001) (" In the light of the evidence before the Department questioning the efficacy of and the necessity for sex reassignment surgery, given other treatment options, w e cannot conclude as a substantive matter that the Department' s regulation is unreasonable, arbitrary, or inconsistent w ith the Act[.]" ).

The Court is also aw are that its interpretation of 42 C.F.R. § 440.230(d) in Ravenw ood, as being inconsistent w ith a private right of action under Section 1983, is not shared by most Courts, w hich, in finding a private right of action under § 1396a(a)(10), have implicitly found that the regulation is not " vague and amorphous." See, e.g., Bontrager v. Indiana Family and Soc. Servs. Admin., -

F.Supp.2d -, 2011 WL 5386646 at * 4 (N.D.Ind. Nov. 4, 2011) (" [V]irtually every court that has addressed the enforceability of 42 U.S.C. § 1396a(a)(10) has held that it meets the Blessing standard and is privately enforceable." ) (collecting cases).

As for the third Blessing/Gonzaga factor, the Court finds that § 1396a(a)(10)(D) unambiguously imposes a binding obligation on the states. Moreover, Defendant has not demonstrated that Congress has foreclosed a remedy under § 1983. Accordingly, the Court finds, for purposes of this Decision and Order, that Plaintiffs have a right to sue to enforce 42 U.S.C. § 1396a(a)(10)(D) under Section 1983, and further, that they have demonstrated a likelihood of success on that claim, inasmuch as they are being denied coverage for medically-necessary equipment that is included w ithin Title XIX's definition of home health services.

CONCLUSION

Plaintiffs' application for preliminary injunctive relief [#8] is granted. Defendant is enjoined from denying Medicaid coverage to Harry Davis and RitaMarie Geary, for prescription footw ear, and to Patty Poole, for prescription compression stockings, pending a further order of this Court.

So Ordered.

ENTER:

Charles J. Siragusa


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