Parents League for Effect. Autism v. Jones-Kelley

565 F.Supp.2d 895

PARENTS LEAGUE FOR EFFECTIVE AUTISM SERVICES, et al., Plaintiffs v. Helen JONES-KELLEY, et al., Defendants.

No. 2:08-cv-421.

United States District Court, S.D. Ohio, Eastern Division.

June 30, 2008.

COPYRIGHT MATERIAL OMITTED

Michelle Francine Atkinson, Susan Gail Tobin, Ohio Legal Rights Service, Columbus, OH, for Plaintiffs.

Ara Mekhjian, Roger Francis Carroll, Jennifer Anne Adair, Ohio Attorney General's Office, Columbus, OH, for Defendants.

Memorandum Opinion and Order

JAMES L. GRAHAM, District Judge.

This matter is before the Court on a joint motion to dismiss, pursuant to Fed. R. Civ. 12(b)(6)¹ filed by Defendants Helen Jones-Kelley, in her official capacity as Director of the Ohio Department of Job and Family Services (ODJFS) and Sandra Stephenson, in her official capacity as Director of the Ohio Department of Mental Health (ODMH) (collectively Defendants). Plaintiffs are Parents League for Effective Autism Services (PLEAS), X.C., a minor and his parent, W.G., a minor and his parent, and K.W., minor and his parent.

Plaintiffs filed a complaint for injunctive and declaratory relief², and a motion for temporary restraining order, asking this Court to enjoin the Defendants from enforcing proposed Ohio Administrative Rules governing the provision of services to children under Ohio's Medicaid program, and to require Defendants to continue providing for "medically necessary services," including applied behavior analysis ("ABA"). Plaintiffs further seek declaratory judgment that the Defendants' proposed rules violate the Plaintiffs' rights under federal Medicaid law. On May 19, 2008, Defendants filed their joint motion to dismiss. Plaintiffs filed their response on June 3, 2008. On June 9, 2008, Defendants filed their reply memorandum in support of the motion to dismiss. As set forth below, the Court denies the Motion to Dismiss.

I. FACTUAL BACKGROUND

Plaintiff PLEAS is an association of parents and families and children, including the three individual plaintiffs, who have a diagnosis on the autism spectrum. Plaintiffs, including the three individual plaintiff children, are children under the age of twenty-one who are eligible for Medicaid. Plaintiff children represented by PLEAS, as well as the three individual children, X.C., W.G., and K.W., receive mental health services, funded by Medicaid, from Step By Step Academy (SBSA). SBSA is a nationally accredited and state certified community mental health agency that provides mental health services to children with autism. Autism is a "complex neuro-developmental disability that generally appears during the first three years of life which impacts the normal development of the brain, resulting in impairments of social interaction, verbal and non-verbal communication, leisure and play activities, and learning." (Complaint at ¶ 53). If untreated, autism often results in lifelong mental retardation. (Id.).

SBSA provides a variety of services to its students. These services include full-day center based applied behavior analysis (ABA), psychological assessments and diagnosis, parent advocacy and resource information and home outreach services, including one-to-one services. (Id. at ¶ 56). The services received by Plaintiff children are recommended by their physicians and/or other licensed practitioners. The three individual plaintiffs have benefitted from the services received at SBSA. Benefits include "increased IQ levels, reduction in developmental disabilities, decrease in behavioral outbursts, increase in on-task behaviors, decrease in self-stimulation behaviors, increased communication skills, increased daily living skills, such as toileting, dressing, food preparation, and a decreased chance of being placed in segregated special education Classrooms or institutional settings." (Id. at ¶ 57).

Defendant Helen Jones-Kelley is the Director of ODJFS, which is the agency responsible for the administration of the Medicaid program in Ohio. As Director, Jones-Kelley is responsible for ensuring that Ohio's medicaid' program complies with federal Medicaid statutes and regulations. Jones-Kelley is also responsible for ensuring that other state and county agencies and subdivisions which provide services funded by Medicaid comply with applicable federal laws. Defendant Sandra Stephenson is the Director of ODMH. As Director, Stephenson is responsible for adopting standards for services provided by community mental health facilities. ODJFS and ODMH are parties to an interagency agreement to provide behavioral health services to people who are eligible for Ohio Medicaid benefits.

Defendants, in their official capacities, have promulgated new rules governing medical services to disabled children under Medicaid. These rules are scheduled to go into effect on July 1, 2008. According to Plaintiffs, the new rules violate federal Medicaid laws and will result in a severe reduction of medically necessary services to Plaintiff children. Plaintiffs assert that without these services, the children currently served by SBSA face a regression in skills and an increase in inappropriate and/or dangerous behaviors. Plaintiffs PLEAS asserts that its members will be unable to afford the necessary services without Medicaid funding and that there are no comparable alternative providers or options available to them. Plaintiffs bring their claims pursuant to 42 U.S.C. § 1983. The Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question jurisdiction), 28 U.S.C. §§ 1343(3) and (4) (jurisdiction over actions involving civil rights) and 28 U.S.C. §§ 2201 and 2202 (district court has the authority to grant declaratory judgment).

Medicaid, authorized by Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq., is a joint federal and state program designed to provide "medical assistance" to needy individuals. Its administration is entrusted to the Secretary of Health and Human Services (HHS), who in turn exercises his authority through the Centers for Medicare and Medicaid Services (CMS). Ark. HHS v. Ahlborn, 547 U.S. 268, 275, 126 S.Ct. 1752, 164 L.Ed.2d 459 (2006). The Medicaid program is subsidized by the federal government, but is administered by the states. Catanzano by Catanzano v. Wing, 103 F.3d 223, 225 (2nd Cir.1996). While participation in the program is voluntary, once a state chooses to participate, it must comply with the requirements of the Medicaid Act and its regulations. Harris v. McRae, 448 U.S. 297, 300, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980)(although participation is optional, once a state elects to participate, it must comply with the requirements of Title XIX); State of Louisiana v. HHS, 905 F.2d 877, 878 (5th Cir.1990)(although states have considerable discretion to design and operate their individual programs, they must maintain their plans in compliance with federal requirements in order to ensure federal funding).

Participating states must submit a "state plan" to CMS for approval before that state may receive Medicaid funds. See 42 U.S.C. §§ 1396a(a) & (b); see also, Catanzano, 103 F.3d at 225. The state plan initially must be approved by the Secretary of Health and Human Services. 42 U.S.C. § 1316(a)(1). Thereafter, a state that seeks to change its state plan may submit an amendment to CMS for approval. See 42 C.F.R. § 430.14-430.15; La. Dep't of Health & Hosps. v. Ctr. for Medicare & Medicaid Servs., 346 F.3d 571, 572 (5th Cir.2003) (stating that 42 C.F.R. § 430.14-430.15 records the Secretary's delegation of authority for approving state plan amendments to CMS). Ohio has an approved state plan. Ohio Dep't of Mental Retardation & Developmental Disabilities v. U.S. Dep't. of Health and Human Services, Health Care Financing Admin., 761 F.2d, 1187, 1188 (6th Cir.1985). Ohio's statutory scheme for the provision of Medicaid is found at Ohio Rev.Code. § 5111.01 et seq. and its regulations found at Ohio Admin. Code Chapter 5101.

Compliance with federal Medicaid law requires a participating state to provide medical assistance to certain classes of people, including disabled children. 42 U.S.C. § 1396a(a)(10)(A). A state plan must provide a range of mandatory medical services to Medicaid recipients. 42 U.S.C. § 1396d(a)(1)-(28) (setting forth the various required services); see also S.D. v. Hood, No. 02-2164 Section "N", 2002 WL 31741240, 2002 U.S. Dist. LEXIS 23535 (E.D.La. Dec. 5, 2002)(federal law mandates that the states provide a range of medical services). One of the mandatory medical services required by the Medicaid Act is early and periodic screening, diagnosis and treatment services (EPSDT) for eligible individuals under the age of twenty-one. 42 U.S.C. §§ 1396a (a)(43). EPSDT is defined at 42 U.S.C. § 1396d(r) and includes the following specific services: screening services to determine the existence of certain physical or mental illnesses or conditions (§ 1396d(r)(1)(A)(ii)), vision services (§ 1396d(r)(2)), dental services (§ 1396d(r)(3)), and hearing services (§ 1396d(r)(4)). EPSDT also includes:

such other necessary healthcare, diagnostic services, treatment, and other measures described in section 1905(a) 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). State plan requirements for EPSDT are further set out in 42 C.F.R. § 441.50.

Ohio's EPSDT plan is referred to as "Healthchek" and is codified at Ohio Admin. Code 5101:3-14-01-5101:3-14-22. The purpose of Healthchek is to "maintain health by providing early intervention to discover and treat health problems." Ohio Admin. Code 5101:3-14-01(A). Plaintiff children are eligible for EPSDT services. In Ohio, ESPDT services are covered by medicaid "when the services are medically necessary, as defined in rule 5101:3-1-01 of the Administrative Code, to treat or ameliorate a defect, physical or mental illness, or...