Full opinion text
ORDER COGAN, District Judge. This case is before me on the Report & Recommendation of Magistrate Judge Steven M. Gold dated April 21, 2008[93], in which he recommended denial of defendants’ motion to dismiss, except as to the Nursing Home Reform Act (“NHRA”) claims that he found time-barred. Plaintiffs and defendants have timely objected. Having conducted a de novo review, I adopt the Report & Recommendation as the Order of this Court and overrule the parties’ objections, as I agree with the analysis of each point addressed by Judge Gold. The only issue warranting additional comment is plaintiffs’ hyperbolic invocation of Muller v. State, 179 Misc.2d 980, 686 N.Y.S.2d 652 (1999), which plaintiffs describe as the progenitor of a “Muller line of cases.” There is no “Muller line of cases,” and a single Court of Claims decision cannot be said to constitute the law of New York. See King v. Order of United Commercial Travelers, 333 U.S. 153, 160-61, 68 S.Ct. 488, 492-93, 92 L.Ed. 608 (1948); Singleton v. City of New York, 632 F.2d 185, 199 (2d Cir.1980). I agree with Judge Gold that the reasoning of that case is not persuasive. It is therefore ORDERED that defendants’ motion to dismiss is denied except as to the time-barred NHRA claims. SO ORDERED. REPORT 'and RECOMMENDATION STEVEN GOLD, United States Magistrate Judge: INTRODUCTION This case concerns ' New York state’s obligation to provide mental health services and treatment to individuals with mental illness in the most integrated setting appropriate to their individual needs. Approximately 400,000 adults are served by New York state’s public mental health system. These individuals are treated in hospitals, residential facilities, outpatient clinics, and other community-based treatment settings. Finding the proper placement within the spectrum of services available for an individual with mental illness is no doubt often a difficult and complex problem. According to plaintiffs, hundreds, and perhaps thousands, of individuals with mental illness are residing in nursing homes who could be residing and receiving treatment in less restrictive, community-based programs. Plaintiffs have filed a second amended complaint asserting claims pursuant to three federal statutes on behalf of individuals with mental illness residing in nursing homes: Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131, 12132; Section 504 of the Rehabilitation Act (“Section 504”), 29 U.S.C. § 794; and the Federal Nursing Home Reform Act (“NHRA”), 42 U.S.C. § 1396r. Generally, the ADA and Section 504 prohibit discrimination against individuals with disabilities, including individuals with mental illness. The ADA was passed, in part, to combat discrimination against individuals with disabilities, including discrimination in the form of unnecessary segregation of those with disabilities in nursing homes and other institutions. See Kathleen S. v. Dep’t of Pub. Welfare of Pa., 10 F.Supp.2d 460, 468 (E.D.Pa.1998) (citing 134 Cong. Rec. 9384 (1988)). The federal regulations implementing both the ADA and Section 504 have specific provisions, referred to as “integration” regulations or mandates, that require public entities to treat individuals with disabilities in the “most integrated setting appropriate to the[ir] needs.” 28 C.F.R. §§ 35.130(d), 41.51(d). In Olmstead v. Zimring, 527 U.S. 581, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999), the Supreme Court held that these integration mandates require a state to provide services to individuals in community settings rather than institutions whenever the relevant professionals conclude that the services required by the individual may appropriately be rendered in a community setting, unless the expense involved would fundamentally alter the state’s overall services and programs. The NHRA was passed specifically to end the practice of inappropriately institutionalizing individuals with mental illness or mental retardation in nursing homes. The NHRA imposes stringent procedures that states and nursing homes must follow before and after an individual with mental illness or mental retardation is admitted to a nursing home. Defendants move to dismiss the complaint on various grounds pursuant to Federal Rule of Civil Procedure 12(b). For the reasons and with the limited exception stated below, I respectfully recommend that defendants’ motion be denied. PROCEDURAL HISTORY On March 8, 2006, Disability Advocates, Inc. (“DAI”) and Sidney Hirschfeld, Director of Mental Hygiene Legal Service, Second Judicial Department (“MHLS”), together with individual plaintiffs, filed a complaint against Sharon E. Carpinello, in her official capacity as Commissioner of the New York State Office of Mental Health, the New York State Office of Mental Health (“OMH”), Antonia C. Novello, in her official capacity as Commissioner of the New York State Department of Health, the New York State Department of Health (“DOH”), and George Pataki, in his official capacity as Governor of the State of New York. On June 29, 2007, defendants requested a pre-motion conference with respect to their anticipated motion to dismiss. The Honorable Brian M. Cogan then referred the motion to me for a report and recommendation. During a conference held on July 10, 2007,1 granted plaintiffs an opportunity to file an amended complaint that might address some of the deficiencies identified by the defendants prior to the filing of any motions. On July 24, 2007, DAI and MHLS, together with three individual plaintiffs — -Edwin T., Joseph S., and Steven W. — filed then-amended complaint against Michael F. Hogan, who replaced Sharon Carpinello as Commissioner of OMH, Richard F. Daines, who replaced Antonia Novello as Commissioner of DOH, and Eliot Spitzer, who replaced George Pataki as Governor, as well as against two state agencies, OMH and DOH. Defendants filed their motion to dismiss the amended complaint on September 18, 2007. I heard argument on defendants’ motion on February 21, 2008. During the oral argument, I granted plaintiffs an opportunity to amend their complaint again to address defendants’ contentions, including the argument that some claims lacked sufficient specificity. Plaintiffs filed a Second Amended Complaint (“Sec.Am.Compl.”), together with a post-hearing letter (“Pl.Letter”), on March 5, 2008, Docket Entry 89, and defendants filed a response (“Def.Letter”) on March 12, 2008, Docket Entry 91. OVERVIEW As noted above, plaintiffs bring this action on behalf of individuals with mental illness who have been or will be unlawfully discharged from psychiatric hospitals and hospital psychiatric wards to nursing homes, and seek declaratory and injunctive relief on their behalf. According to plaintiffs, New York State’s flawed mental health system has the effect of warehousing individuals with mental illness in nursing homes in violation of federal laws. Plaintiffs allege that New York State has failed to provide these individuals with programs and services in the most integrated setting appropriate to their needs. Moreover, plaintiffs contend that, once placed in the nursing homes, individuals do not receive the rehabilitative services or mental health treatment they need, and therefore are unable to transfer to community-based treatment programs. Essentially, plaintiffs argue that thousands of New York residents with mental illness are languishing for years in nursing homes, some of them outside of New York State or far away from family members, on locked wards or otherwise unable to leave the facility, without receiving the mental health treatment they need and despite the fact that they do not require a nursing home’s level of care. Plaintiffs allege that these nursing homes have become de facto psychiatric hospitals, but without the psychiatric services that a hospital setting provides. The state, and more specifically, OMH and DOH, are required by state law to care for and treat individuals with mental illness. The NHRA’s Preadmission Screening and Resident Review (“PASRR”) process imposes additional responsibilities on the defendants. Pursuant to New York Mental Hygiene Law, The state of New York and its local governments have a responsibility ... for the comprehensively planned care, treatment and rehabilitation of their mentally ill citizens. Therefore, it shall be the policy of the state ... to develop a comprehensive, integrated system of treatment and rehabilitative services for the mentally ill. Such a system should include, whenever possible, the provision of necessary treatment services to people in their home communities; it should assure the adequacy and appropriateness of residential arrangements for people in need of service; and it should rely upon improved programs of institutional care only when necessary and appropriate. N.Y. MeNtal Hyg. Law § 7.01. To implement these policies and goals, the legislature established OMH, and charged it with responsibility for “develop[ing] an effective, integrated comprehensive system for the delivery of all services to the mentally ill.... ” Id. See also id. § 7.07. As the state agency responsible for developing and implementing New York’s mental health policies and programs, OMH operates inpatient psychiatric hospitals and licenses and funds psychiatric wards of hospitals licensed pursuant to Article 28 of the New York Public Health Law (“Article 28 hospitals”). Sec. Am. Compl. ¶ 48. DOH operates New York’s Medicaid program. In that capacity, DOH provides payment for individuals with mental illness living in nursing homes and is responsible for ensuring compliance with the NHRA. Id. ¶¶ 56, 57. DOH is also the state agency in charge of licensing, supervising, and enforcing laws applicable to nursing homes and Article 28 hospitals. Id. ¶¶ 58, 59. At its most basic level, the NHRA requires that states accepting federal Medicaid funds have a screening plan, specifically a PASRR plan, to ensure that decisions to place individuals in nursing facilities are made appropriately. 42 U.S.C. § 1396r(e)(7)(A)(i); 42 C.F.R. § 488.104. Level I of the PASRR program requires that the State “identify all individuals who are suspected of having [mental illness]” and who are being referred to a nursing home. 42 C.F.R. § 483.128(a). PASSR “Level II is the function of evaluating and determining whether [nursing facility] services and specialized services are needed.” Id. When an individual with mental illness is hospitalized, either in a psychiatric hospital or in a psychiatric ward of an Article 28 hospital, there may come a time when his treatment team determines that he is ready to be discharged to a less restrictive setting. At that time, a discharge service plan is prepared by a staff member on his treatment team. See N.Y. Mental Hyg. Law § 29.15 (regulating discharge planning). If the team concludes that he should be discharged to a nursing home, the state must be notified of that determination. The NHRA and its implementing regulations obligate the applicable state agency, here defendant OMH, to assess whether the patient in fact requires the level of services provided by a nursing home before he or she may be placed there. See 42 U.S.C. § 1396r(e)(7)(A)(i); 42 C.F.R. §§ 483.106(d)(1), 483.112(a), 483.132(d). Although OMH’s determination must be “based on an independent physical and mental evaluation performed by a person or entity” other than OMH, OMH is ultimately responsible for the PASRR determination that an individual requires a nursing home level of care. 42 C.F.R. § 483.106(d)(1); see also id. §§ 483.106(e)(3), 483.112(a), 483.132(d). In addition, OMH’s Level II PASRR determination must include whether an individual also needs specialized services for mental illness, id. §§ 483.106(d)(1), 483.112(b), and if so, the state must ensure that the required services are provided, id. § 483.126. Finally, a nursing home must notify OMH if there has been a “significant change” in an individual’s mental or physical condition. 42 U.S.C. § 1396r(e)(7)(B)(iii). Once notified, OMH must review and determine whether the individual still requires nursing level of services. Id. STANDARDS GOVERNING A MOTION TO DISMISS Defendants move to dismiss the various claims in the complaint on the following seven grounds: 1) that the plaintiffs fail to allege a prima facie claim of discrimination sufficient to state causes of action for violations of the ADA and Section 504; 2) that the NHRA does not confer a right of action enforceable through § 1983, and that even if the court concludes that it does, plaintiffs’ complaint is vague and conclusory and fails to meet the requirements of Federal Rule of Civil Procedure 8; 3) that DAI and MHLS lack associational standing to bring these claims; 4) that the governor is not properly named as a defendant; 5) that the complaint fails to allege the necessary causal connection between plaintiffs’ injuries and defendants’ actions and therefore the individual plaintiffs lack standing; 6) that the complaint fails to name necessary parties; and 7) that certain claims are outside the statute of limitations period. The Federal Rules of Civil Procedure require only that a complaint set out a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8. Motions to dismiss address the sufficiency of plaintiffs’ complaint, not the sufficiency of plaintiffs’ evidence, and a court deciding a motion to dismiss must accept all allegations in the complaint as true and draw all inferences in favor of the non-moving party. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003). For many years, courts construing Rule 12 motions applied the rule set forth in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957), that a complaint should be dismissed only if “it appeared] beyond doubt that the plaintiff e[ould] prove no set of facts in support of his claim which would entitle him to relief.” Last year, however, the Supreme Court abandoned the Conley “no set of facts” language and instead adopted a “plausibility standard.” Bell Atlantic Corp. v. Twombly, — U.S. —, 127 S.Ct. 1955, 1968-69, 167 L.Ed.2d 929 (2007). That is, a complaint should allege “enough fact to raise a reasonable expectation that discovery will reveal evidence” to support the plaintiffs’ claims. Id. at 1965. The Second Circuit has interpreted the Court’s Twombly decision “not [as] requiring a universal standard of heightened fact pleading, but ... instead [as] requiring a flexible ‘plausibility standard,’ which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible.” Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir.2007). “Once a claim has been adequately stated, [however,] it may be supported by showing any set of facts consistent with the allegations in the complaint.” ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007). Thus, some amount of factual detail is now required to survive a Rule 12(b)(6) motion to dismiss. On the one hand, a complaint comprised only of “labels and conclusions, and a formulaic recitation of the elements of a cause of action” is insuf-fícient; on the other hand, a complaint should not be dismissed so long as plaintiffs provided sufficient factual allegations “to raise a right to relief above the speculative level.” Twombly, — U.S. at —, 127 S.Ct. at 1965. DISCUSSION 1. Failure to State ADA and Section 504 Claims Defendants first contend that plaintiffs’ complaint fails to state ADA and Section 504 claims. Defendants argue that plaintiffs’ complaint does not identify obligations that defendants have but do not meet. a. The ADA and Section 50k of the Rehabilitation Act Congress enacted the ADA after finding that “historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.” 42 U.S.C. § 12101(a)(2). Accordingly, Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” Id. § 12132. Section 504 of the Rehabilitation Act has a similar provision. See 29 U.S.C. § 794(a). Claims under the two statutes are treated identically unless — unlike here — one of the minor differences in the two disability acts is pertinent to a claim. Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir.2003). The Second Circuit has stated that In order to establish a violation under the ADA, the plaintiffs must demonstrate that (1) they are “qualified individuals” with a disability; (2) that the defendants are subject to the ADA; and (3) that plaintiffs were denied the opportunity to participate in or benefit from defendants’ services, programs, or activities, or were otherwise discriminated against by defendants, by reason of plaintiffs’ disabilities. Id. at 272. To establish a violation of Section 504, plaintiffs bear the additional burden of showing that defendants receive federal funding. Id. Plaintiffs have sufficiently alleged all of these elements and therefore have adequately pled claims under the ADA and Section 504. See Sec. Am. Compl. ¶¶ 187-96 (ADA violation); id. ¶¶ 199-209 (Section 504 violation). Plaintiffs bring their ADA and Section 504 claims alleging violations of the statutes’ “integration mandates” issued by the United States Attorney General. The ADA directs the Attorney General to promulgate implementing regulations. 42 U.S.C. § 12134(a). Pursuant to that authority, the Attorney General has issued an “integration regulation” or “integration mandate,” to combat the historical segregation and isolation of those with mental illness. It provides as follows: “A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). A failure to provide “placement ‘in a setting that enables disabled individuals to interact with non-disabled persons to the fullest extent possible’ ” violates the ADA’s integration mandate. Messier v. Southbury Training Sch., 1999 WL 20910, at *9 (D.Conn. Jan.5, 1999) (iquoting 35 C.F.R. Pt. 35, App. A at 450). [P]laintiffs may establish a prima facie violation of 28 C.F.R. § 35.130(d) by proving that [defendants] place certain residents [in a more restrictive setting than required], even though [those] exercising professional judgment have determined previously that the most integrated setting for those residents is a community placement. Id. at *10. In Olmstead v. Zimring, 527 U.S. 581, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999), the Supreme Court considered the scope of the ADA’s integration mandate: “Specifically, we confront the question whether the proscription of discrimination [in Title II of the ADA] may require placement of persons with mental disabilities in community settings rather than in institutions. The answer, we hold, is a qualified yes.” Olmstead, 527 U.S. at 587, 119 S.Ct. at 2181. The Court held that “[Unjustified isolation ... is properly regarded as discrimination based on disability,” id. at 597, 119 S.Ct. at 2185, noting that “Congress explicitly identified unjustified ‘segregation’ of persons with disabilities as a ‘for[m] of discrimination.’ ” Id. at 600, 119 S.Ct. at 2187 (quoting 42 U.S.C. §§ 12101(a)(2), 12101(a)(5)). Thus, unnecessary segregation of individuals with mental illness is discrimination per se and a violation of the ADA; no demonstration of differential treatment between individuals with mental illness and those without is required. See Helen L., 46 F.3d at 333, 335 (holding that evidence of discriminatory animus is not required to establish an ADA or Section 504 claim); Messier, 1999 WL 20910, at *9 (The ADA “prohibits states from providing services to individuals with disabilities in an unnecessarily segregated setting, even absent a showing of differential treatment between disabled and nondisabled persons.”). Plaintiffs in Olmstead were psychiatric patients in a state hospital who remained institutionalized even after medical professionals determined that their needs could be met in community-based settings. The Court concluded that, under Title II of the ADA, States are required to provide community-based treatment for persons with mental disabilities when the State’s treatment professionals determine that such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities. Olmstead, 527 U.S. at 607, 119 S.Ct. at 2190. Thus, plaintiffs here may prevail if the complaint alleges, with sufficient factual detail to render their claims plausible, that individuals are placed in nursing facilities even though 1) a determination has been made that a particular individual’s needs may be met in a more integrated setting, 2) the individual consents to reside in a more integrated setting, and 3) the state can reasonably accommodate a placement in a more integrated setting. Defendants argue that Olmstead requires that the determination that an individual’s needs may be met in a more integrated setting must be made by a state mental health professional. Def. Mem. 22-23; Def. Letter. Defendants contend that, because the second amended complaint does not allege that any state mental health professional made any finding about any of the plaintiffs, it fails to state a claim under either the ADA or Section 504. However, the language from Olmstead concerning determinations by “the State’s treatment professionals,” 527 U.S. at 587, 607, 119 S.Ct. at 2181, 2190, appears to be based on the particular facts of that case and not central to the Court’s holding. Indeed, the determinations regarding community treatment for both of the named plaintiffs in Olmstead were made by their treating professionals, who also happened to be the state’s treatment professionals simply because the plaintiffs were institutionalized in a state facility. Id. at 593, 119 S.Ct. at 2183. Accordingly, I reject defendants’ argument that Olm-stead requires that the state’s mental health professionals be the ones to determine that an individual's needs may be met in a more integrated setting. See Fisher v. Ok. Health Care Auth., 335 F.3d 1175, 1181 (10th Cir.2003) (“[Ujnder Olm-stead and the applicable ADA regulations, when treatment professionals have determined that community placement is appropriate for disabled individuals, those individuals do not oppose the placement, and the provision of services would not constitute a ‘fundamental alteration,’ states are required to place those individuals in community settings rather than institutions.”) (emphasis added); Messier, 1999 WL 20910, at *10 (implicitly acknowledging that the relevant determination may be made by treating professionals, who may or may not be employed by defendant state agencies); but see Martin v. Taft, 222 F.Supp.2d 940, 972 (S.D.Oh.2002) (“Martin 2002 ”) (requiring plaintiffs to plead “that the state’s professionals have determined the plaintiffs are qualified for community-based care, or by pleading facts from which it may be inferred that the determinations of the state’s professionals are manifestly unreasonable”). Moreover, it is not clear whether Olmstead even requires a specific determination by any medical professional that an individual with mental illness may receive services in a less restrictive setting, or whether that just happened to be what occurred in Olmstead. Cf. Fisher, 335 F.3d at 1181-82 (concluding that even those not currently institutionalized but only at risk of unjustified segregation may bring suit); Martin 2002, 222 F.Supp.2d at 965 (“Olmstead’s central holding [is] that unnecessary institutionalization of persons with mental disabilities constitutes discrimination under the ADA.”). b. Analysis of Plaintiffs’ ADA and Section 50k Claims Plaintiffs first allege that nursing homes are “highly-segregated institutions.” Id. ¶¶ 93-95, 100-03, 117. Plaintiffs contend that individuals with mental illness in nursing homes “cannot leave without setting off alarms, and have little access to the outdoors, much less to the community outside the institution.” Id. ¶ 93. More specifically, plaintiffs allege that at two large nursing homes in New Jersey where New York residents with mental illness have been placed, “residents with mental illness [are] segregated from the other residents of the nursing home” because they reside on separate floors and are not allowed to leave their floors unless they have “special passes.” Id. ¶ 101. See also id. ¶ 117 (alleging that New York nursing homes similarly restrict movement within their facilities). Plaintiffs contend that Steven W., one of the named plaintiffs, “is unable to leave the facility unescorted and is unable to leave the floor without supervision. He wears a device on his wrist that triggers an alarm if he attempts to leave the floor or the facility without permission.” Id. ¶ 139. Plaintiffs further allege that many of the individuals with mental illness who are residing in nursing homes do not require any-nursing or medical care, and are eligible to receive treatment in more integrated community settings. Sec. Am. Compl. ¶¶ 6-8, 10-11, 41, 79-83, 86-87, 90, 92, 189. Defendants argue that, even if Olmstead does not require findings by a state’s treatment professionals, there must be some medical determination that an individual’s needs may be met in a less segregated setting before the integration mandate is violated. Def. Mem. 11. Although the complaint could be clearer, the allegations cited above are sufficient to suggest that there has been a professional determination that the clinical needs of these individuals may be met in an integrated, community-based setting. In fact, the complaint specifically alleges that a mental health professional evaluated Joseph S. and determined that his needs could be met in a more integrated setting. Sec. Am. Compl. ¶ 129. In addition, the complaint states that the named plaintiffs would consent to reside in a more integrated setting. Id. ¶¶ 28, 134, 140. Plaintiffs’ allegations that individuals with mental illness are unnecessarily segregated in highly restrictive nursing homes, even though their needs could be met in a more integrated setting, and that these individuals desire to reside in a more integrated setting, are adequate to state violations of the ADA and Section 504 under Olmstead and meet Twombly’s plausibility standard. See Martin 2002, 222 F.Supp.2d at 973; Messier, 1999 WL 20910, at *10; Cramer v. Chiles, 33 F.Supp.2d 1342, 1353 (S.D.Fla.1999) (“Institutionalization of individuals with developmental disabilities, against their will, where less confining programs will satisfy their needs, violates the Americans with Disabilities Act’s integration requirements.”). Accordingly, plaintiffs have sufficiently alleged that defendants fail to “administer [their] services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). Moreover, the allegations concerning the restrictions on freedom within the nursing homes amply state a claim for a violation of the integration mandate because these restrictions on an individual’s freedom prevent them from interacting with “nondisabled persons to the fullest extent possible.” 35 C.F.R. Pt. 35, App. A at 450; see also Messier, 1999 WL 20910, at *9. Plaintiffs’ general allegations are supported by specific factual assertions with respect to the named plaintiffs. See ATSI Commc’ns, 493 F.3d at 98 (“Once a claim has been adequately stated, it may be supported by showing any set of facts consistent with the allegations in the complaint.”). Both named plaintiffs allege that they have a mental illness, but “no medical or mental condition that requires nursing home care.” Sec. Am. Compl. ¶ 27; see also id. ¶¶ 128-29, 137. Moreover, both are “able to, qualified for, and would like to live in a more integrated setting” than the nursing homes where they reside. Id. ¶¶ 134, 140. See also id. ¶ 28. Specifically, plaintiff Joseph S. has resided in a New York nursing home since his discharge from a state psychiatric hospital in September, 2003. Id. ¶ 127. The hospital discharge plan for Joseph S. “did not contain a medical reason for nursing home placement.” Id. ¶ 128; see also id. ¶ 29. In addition, as noted above, Joseph S. was evaluated by an independent agency while in the nursing home and was determined not to require nursing level of care. Id. ¶ 129. Similarly, Steven W. was discharged in June, 2004 from a psychiatric ward of a New York state hospital to a nursing home, where he continues to reside today. Id. ¶¶ 135-36. His discharge plan also failed to state a medical reason for nursing home placement, although it did include a proposal for community reintegration. Id. ¶ 137; see also id. ¶ 30. Defendants argue that, even if plaintiffs are entitled to receive services in a less segregated setting, the second amended complaint fails to allege how it is that defendants are responsible for plaintiffs having been placed in nursing home facilities. Def. Letter. Olmstead, however, made clear that “under Title II of the ADA, States are required to provide community-based treatment for persons with mental disabilities” when appropriate and when other criteria are met. Olmstead, 527 U.S. at 607, 119 S.Ct. at 2190 (emphasis added). See also N.Y. Mental Hyg. Law § 7.01 (entrusting to OMH the statutory duty “to develop an effective, integrated comprehensive system for the delivery of all services to the mentally ill....”); Sec. Am. Compl. ¶ 71 (“OMH must operate New York’s public mental health system in order to serve individuals with mental illness in the most integrated setting consistent with their clinical needs.”); id. ¶ 47. Defendants also invoke the discussion in Olmstead that suggests that an entity may be excused from providing community-based treatment if it “can demonstrate that making the modifications [necessary to offer such treatment] would fundamentally alter the nature of the service, program, or activity” of the entity, pursuant to 28 C.F.R. § 35.130(b)(7). Olmstead, 527 U.S. at 605-06, 119 S.Ct. at 2189. Defendants argue that the broad relief that plaintiffs seek here would require a fundamental alteration to the state’s mental health policies and practices. Def. Mem. 26. Nonetheless, it would be inappropriate to dismiss plaintiffs’ ADA and Section 504 claims for this reason at this stage of the litigation because defendants bear the burden of establishing “fundamental alteration” as a defense. See Olmstead, 527 U.S. at 604-06, 119 S.Ct. at 2189 (noting that a state has the burden of establishing a fundamental alteration defense); Radaszewski v. Maram, 383 F.3d 599, 614-15 (7th Cir.2004) (holding that the cost-benefit analysis that must be undertaken to assess a fundamental alteration defense is not appropriately made at the pleading stage); Martin 2002, 222 F.Supp.2d at 972 (“[WJhether [the] requested relief would entail a fundamental alteration is a question that cannot be answered in the context of a motion to dismiss.”). For all these reasons, I conclude that plaintiffs’ complaint meets the requirements of Rule 8 and Twombly’s plausibility standard and sufficiently pleads ADA and Section 504 causes of action. 2. Section 1983 Right of Action under the NHRA Plaintiffs’ claims under the NHRA, although not specifically invoking § 1983, see Sec. Am. Compl. ¶¶ 12, 163-181, 212-28, are brought pursuant to that statute. Sec. Am. Compl. ¶ 20; Pl. Mem. 24. Defendants contend that plaintiffs’ complaint fails to state a claim upon which relief can be granted because the NHRA and its implementing regulations do not create federal rights enforceable through a § 1983 action. a. Supreme Court Framework for § 1983 Analysis Under § 1983, an individual may obtain relief for a violation of constitutional or federal statutory rights. See Maine v. Thiboutot, 448 U.S. 1, 4-6, 100 S.Ct. 2502, 2504-05, 65 L.Ed.2d 555 (1980) (recognizing that § 1983 actions may be brought to enforce rights created by federal statutes in addition to constitutional rights). “In order to seek redress through § 1983, however, a plaintiff must assert the violation of a federal right, not merely a violation of federal law.” Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353, 1359, 137 L.Ed.2d 569 (1997). Thus, if a plaintiff alleges a violation of a federal law as the basis of a § 1983 action, the court must determine whether the federal statute involved confers an individual right. Plaintiffs bear the burden of establishing that a statute gives rise to federal rights enforceable through § 1983. See Blessing, 520 U.S. at 342, 346, 117 S.Ct. at 1360, 1362; Williams v. U.S. Dep’t of Hous. & Urban Dev., 2006 WL 2546536, at *9 (E.D.N.Y. Sept.1, 2006) (describing it as “axiomatic that ‘the plaintiff must demonstrate that’ the statute creates an individual right”) (quoting City of Rancho Palos Verdes, Cal. v. Abrams, 544 U.S. 113, 120, 125 S.Ct. 1453, 1458, 161 L.Ed.2d 316 (2005)). The Supreme Court has outlined a three-part test for determining whether a statute gives rise to a federal right: First, Congress must have intended that the provision in question benefit the plaintiff. 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. In other words, the provision giving rise to the asserted right must be couched in mandatory rather than prec-atory terms. Blessing, 520 U.S. at 340-41, 117 S.Ct. at 1359 (citations omitted). Moreover, “[e]ven if a plaintiff demonstrates that a federal statute creates an individual right, there is only a rebuttable presumption that the right is enforceable under § 1983.... [Dismissal is proper if Congress ‘specifically foreclosed a remedy under § 1983.’ ” Id. at 341, 117 S. Ct at 1360 (quoting Smith v. Robinson, 468 U.S. 992, 1005 n. 9, 104 S.Ct. 3457, 3464, 82 L.Ed.2d 746 (1984)). Although the language used in Blessing suggests that the first prong of its test is satisfied if it is clear that the plaintiff is an intended beneficiary of the statute, the Supreme Court has since rejected this proposition and narrowed the scope of the first Blessing factor. In Gonzaga University v. Doe, 536 U.S. 273, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002), the Court recognized that some courts had interpreted Blessing as allowing plaintiffs to enforce a statute under § 1983 so long as the plaintiff falls within the general zone of interest that the statute is intended to protect; something less than what is required for a statute to create rights enforceable directly from the statute itself under an implied private right of action. Gonzaga, 536 U.S. at 283, 122 S.Ct. at 2275. The Court then explicitly rejected the notion that our cases permit anything short of an unambiguously conferred right to support a cause of action brought under § 1983. Section 1983 provides a remedy only for the deprivation of “rights, privileges, or immunities secured by the Constitution and laws” of the United States. Accordingly, it is rights, not the broader or vaguer “benefits” or “interests,” that may be enforced under the authority of that section. Id. The Gonzaga Court held that, for a federal statute to confer an individual right enforceable under § 1983, it must include “explicit rights-creating” language “phrased in terms of the persons benefited.” Id. at 284, 122 S.Ct. at 2276 (internal quotation marks and citation omitted). As examples of “explicit rights-creating” language, the Court cited Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972 because the statutes, each of which declares that “[n]o person” shall be subjected to discrimination, id. at 284 n. 3, 122 S.Ct. at 2275-76 (quoting 42 U.S.C. § 2000d; 20 U.S.C. § 1681(a)), “are phrased ‘with an unmistakable focus on the benefited class,’” id. at 284, 122 S.Ct. at 2275-76 (citation omitted). In contrast, “[statutes that focus on the [entity or] person regulated rather than the individuals protected create ‘no implication of an intention to confer rights on a particular class of persons.’” Alexander v. Sandoval, 532 U.S. 275, 289, 121 S.Ct. 1511, 1521, 149 L.Ed.2d 517 (2001) (quoting California v. Sierra Club, 451 U.S. 287, 294, 101 S.Ct. 1775, 1779, 68 L.Ed.2d 101 (1981)). The Gonzaga Court concluded that the statute at issue there — the Family Educational Rights and Privacy Act (“FERPA”) — does not create individual rights because the provisions speak “only in terms of institutional policy and practice ... [and] have an ‘aggregate’ focus[;] they are not concerned with ‘whether the needs of any particular person have been satisfied,’ and they cannot ‘give rise to individual rights.’ ” Gonzaga, 536 U.S. at 288, 122 S.Ct. at 2278 (quoting Blessing, 520 U.S. at 343-44, 117 S.Ct. at 1361). The Gonzaga Court did emphasize that funding statutes generally do not give rise to a § 1983 right of action. Id. at 280-81, 122 S.Ct. at 2273-74 (citing Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17, 28, 101 S.Ct. 1531, 1540, 1545, 67 L.Ed.2d 694 (1981)). The Court, however, expressly distinguished and did not overrule its holding in an earlier case, Wilder v. Virginia Hospital Ass’n, 496 U.S. 498, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990). In Wilder, the Supreme Court held that a private right of action existed under a provision of the Medicaid Act that uses language similar to that involved in this case. Citing Wilder with approval and referring to the statutory language at issue there, the Gonzaga Court stated that “Congress left no doubt of its intent for private enforcement ... because the provision[, 42 U.S.C. § 1396a(a)(13)(A),] required States to pay an ‘objective’ monetary entitlement to individual health care providers, with no sufficient administrative means of enforcing the requirement against States that failed to comply.” Gonzaga, 536 U.S. at 280-281, 122 S.Ct. at 2274. b. Pertinent Post-Gonzaga Case Law from Courts of Appeals Several decisions from Courts of Appeals shed light on how to determine whether a statutory provision confers an individual right post-Gonzaga. In particular, several courts have considered whether various provisions of the Medicaid Act, 42 U.S.C. §§ 1396 et seq., which includes the NHRA, confer enforceable rights. One such post-Gonzaga case was decided by the Second Circuit. In Rabin v. Wilson-Coker, 362 F.3d 190, 201-02 (2d Cir.2004), plaintiffs were Medicaid recipients who sued under § 1983 based on 42 U.S.C. § 1396r-6 of the Medicaid Act. Section 1396-r essentially affords families receiving Medicaid with a grace period before losing their benefits when their income rises. The statute provides that each State plan approved ... must provide that each family which was receiving aid pursuant to a plan of the State ... in at least 3 of the 6 months immediately preceding the month in which such family becomes ineligible for such aid ... shall ... remain eligible for assistance under the plan ... during the immediately succeeding 6-month period.... 42 U.S.C. § 1396r-6. The Second Circuit’s analysis in Rabin included a detailed discussion of Gonzaga. The court pointed out that the statute at issue in Gonzaga was held to be “‘two steps removed from the interests of the individual students and parents’ ” because it “only forbade the government from funding schools that demonstrated a ‘policy or practice’ of disclosing student records.” Rabin, 362 F.3d at 201 (quoting Gonzaga, 536 U.S. at 287, 122 S.Ct. at 2277). Distinguishing the provision in Gonzaga, the Second Circuit found that § 1396r-6 “focuse[d] much more directly than d[id] the FERPA provision on the individual’s entitlement. In particular, it contains no qualifying language akin to FERPA’s ‘policy or practice.’ ” Id. The Second Circuit recognized that § 1396r-6 requires state plans to provide for families to continue receiving aid, “rather than directly requiring that all eligible persons receive the assistance.” Id. Nonetheless, the court rejected defendants’ argument that the statute as a result had an “aggregate” and administrative policy focus and concluded that “[bjecause all of the language of Section 1396r-6 except the ‘plan requirements’ language, reflects Congress’s intention to confer a right to [assistance] upon persons who meet the various eligibility requirements, we find that Section 1396r-6 can support a Section 1983 claim.” Id. at 202. Cf. NextG Networks of N.Y., Inc. v. City of New York, 513 F.3d 49, 52-53 (2d Cir.2008) (finding that a provision of the Telecommunications Act with respect to regulation of telecommunications providers did not create individual rights enforceable by providers where statute placed limitations on state and local governments and did not confer any benefit on providers); Loyal Tire & Auto Ctr., Inc. v. Town of Woodbury, 445 F.3d 136, 150 (2d Cir.2006) (A “statute[ ] which provides that a state or municipality may not ‘enact or enforce’ certain kinds of laws governing motor carriers of property, 49 U.S.C. § 14501(c)(1), is not ‘phrased in terms of the persons benefitted;’ ... the statute focuses on the regulated actors ... [and] has an aggregate, rather than an individual, focus.”). Other circuits have also held that provisions of the Medicaid Act may give rise to rights enforceable in a § 1983 action. In Sabree v. Richman, 367 F.3d 180 (3d Cir.2004), the Third Circuit considered whether 42 U.S.C. §§ 1396a(a)(8), 1396a(a)(10), and 1396d(a)(15) conferred individual rights that could be enforced in a § 1983 action. The court reviewed the relevant Supreme Court precedent, including Gon-zaga. The provisions at issue in Sabree required a state to provide reasonably prompt payment for certain services rendered on behalf of individuals with mental retardation in intermediate care facilities. Sabree, 367 F.3d at 182. The Third Circuit found the language of the Medicaid Act provisions — “A State plan must provide” — to be indistinguishable from the Titles VI and IX language — -“No person shall” — that the Gonzaga Court concluded was explicit rights-creating language conferring an enforceable right. Id. at 190. Relying to some extent on Wilder, which had identical language and was found to confer individual rights, the Third Circuit held that the Medicaid provisions provided rights enforceable through § 1983. Id. at 192. The First, Fourth, Fifth, and Ninth Circuits have all held that the same Medicaid provisions considered in Sabree confer individual rights. Bryson v. Shumway, 308 F.3d 79, 88-89 (1st Cir.2002) (holding that § 1396a(a)(8) creates an enforceable right); Doe v. Kidd, 501 F.3d 348, 356 (4th Cir.2007) (same); S.D. ex rel. Dickson v. Hood, 391 F.3d 581, 603 (5th Cir.2004) (holding that § 1396a(a)(10), even though phrased in terms of the requirements a state plan must meet, creates an enforceable right); Watson v. Weeks, 436 F.3d 1152, 1155 (9th Cir.2006) (same). See also Sanders ex rel. Rayl v. Kan. Dep’t of Social & Rehab. Servs., 317 F.Supp.2d 1233, 1249 (same). Courts of Appeals have also found that other Medicaid provisions confer individual rights. See Ball v. Rodgers, 492 F.3d 1094, 1103 (9th Cir.2007) (finding that the Medicaid Act’s free choice provisions, 42 U.S.C. §§ 1396n(c)(2)(C) and (d)(2)(C), confer individual rights); Harris v. Olszewski 442 F.3d 456, 461-62 (6th Cir.2006) (finding that Medicaid’s freedom-of-choice provision, 42 U.S.C. § 1396a(a)(23), created individual rights enforceable through § 1983). In contrast, courts have almost unanimously held that the Equal Access provision of the Medicaid Act, 42 U.S.C. § 1396a(a)(30)(A), does not confer any rights. Equal Access for El Paso, Inc. v. Hawkins, 509 F.3d 697, 704 (5th Cir.2007) (“The Equal Access provision has a clearly aggregate and systemic focus that deals with institutional policy and procedures, rather than an individualized focus concerned with whether the needs of any particular person or class of recipients have been satisfied.”); Westside Mothers v. Olszewski, 454 F.3d 532, 542 (6th Cir.2006) (collecting cases). See also Lankford v. Sherman, 451 F.3d 496, 509 (8th Cir.2006) (finding that Medicaid’s reasonable-standards requirement, 42 U.S.C. § 1396a(a)(17), “focuses on the aggregate practices of the state” and therefore does not create individual rights). Finally, and in the context of a different statutory scheme, the Fifth Circuit recently considered whether a provision of the United States Housing Act could be enforced in a § 1983 action. Johnson v. Hous. Auth. of Jefferson Parish, 442 F.3d 356, 360 (5th Cir.2006), cert denied — U.S. —, 127 S.Ct. 136, 166 L.Ed.2d 36 (2006). The statute at issue in Johnson referred to “families] receiving tenant-based assistance” and set forth the means for calculating “the monthly assistance payment for the family.” 42 U.S.C. §§ 1437f(o)(2)(A), (B). Recognizing the significance of Gonzaga, the Fifth Circuit noted that the Supreme Court’s “approach to § 1983 enforcement of federal statutes has been increasingly restrictive; in the end, very few statutes are held to confer rights enforceable under § 1983.” Id. at 360. Nevertheless, the court found that Congress unambiguously intended the Housing Act provision at issue to benefit families and thus to create an enforceable right. The Fifth Circuit cited a provision that provided for “the monthly assistance payment for a family receiving assistance,” and concluded that “[t]he statutory language could not be clearer.” Id. at 363 (first emphasis added). See also id. n. 36 (The text of the statute, in providing for “the monthly assistance payment for a family,” is undoubtedly “phrased in terms of the persons benefited.”) (citing Gonzaga, 536 U.S. at 284, 122 S.Ct. at 2276). c. Analysis of the NHRA Plaintiffs argue that the NHRA creates federal rights enforceable under § 1983. More specifically, plaintiffs contend that defendants are responsible for implementing the NHRA’s Preadmission Screening and Resident Review (“PASRR”) provisions, 42 U.S.C. §§ 1396a(a)(28) and 1396r(e)(7), and the related PASRR regulations, 42 C.F.R. §§ 483.100-483.138, and that the defendants’ failure “to operate a PASRR system consistent with the NHRA” is a violation of plaintiffs’ federal rights. Sec. Am. Compl. ¶¶ 228; see also id. ¶¶ 212-27. Section 1396a(a)(28) provides that a state plan for medical assistance must ensure that nursing facilities comply with § 1396r(b)-(d), and that the state itself complies with § 1396r(e). Subsection (e) of § 1396r, titled “State requirements relating to nursing facility requirements,” has the following PASRR provision: [T]he State must have in effect a pread-mission screening program, for making determinations ... for mentally ill ... individuals ... who are admitted to nursing facilities.... [I]n the case of each resident of a nursing facility who is mentally ill, the State mental health authority must review and determine ... whether or not the resident, because of the resident’s physical and mental condition, requires the level of services provided by a nursing facility ... and whether or not the resident requires specialized services for mental illness. 42 U.S.C. §§ 1396r(e)(7)(A)(i) and (e)(7)(B)®. There is no question that plaintiffs meet the first Blessing factor as individuals “within the general zone of interest that [§ 1396r] is intended to protect.” 520 U.S. at 340-41, 117 S.Ct. at 1359. Indeed, the Second Circuit in Concourse Rehabilitation & Nursing Center, Inc. v. Whalen, 249 F.3d 136 (2d Cir.2001), specifically noted that Medicaid recipients were the intended beneficiaries of § 1396r. In Concourse Rehabilitation, plaintiffs were nursing facilities suing the State Department of Health after an audit revealed that the nursing facilities had been overpaid under the state’s Medicaid program. Plaintiffs alleged violations of the federal Medicaid Act, pursuant to § 1396a(a)(13)(A) and § 1396r, the latter being the provision at issue in this case. The Second Circuit examined both provisions to determine whether they give rise to a § 1983 action and concluded, with respect to § 1396r, that it did not entitle nursing facilities to bring suit. The court held: “It is clear from the plain language of this provision[, § 1396r(b)(4)(A),] that it was not ‘intend[ed] to benefit the putative plaintiffs]’ — here the health care providers. Rather, the provision is obviously intended to benefit Medicaid beneficiaries.” Concourse Rehabilitation, 249 F.3d at 143414 (internal citation omitted). See also Bock Assocs. v. Chronister, 951 F.Supp. 969, 974 (D.Kan.1996) (finding that a service provider was not “an intended beneficiary of the [PASRR] requirements^ which were] ... intended to improve the quality of care for patients and to save money for the state and federal governments”). As Gonzaga made clear, however, meeting Blessing’s “zone of interest” test is not enough; for plaintiffs’ NHRA claims to survive, they must satisfy Gonzaga’s stricter requirement that the statute contain, with respect to Medicaid nursing home residents, “explicit rights-creating terms,” Gonzaga, 536 U.S. at 284, 122 S.Ct. at 2276, “phrased with an unmistakable focus on the benefited class,” id., 122 S.Ct. at 2275 (internal quotation marks and citation omitted). The question is close because, while the intent of the NHRA is clearly to benefit individuals with mental illness, the PASRR provision, 42 U.S.C. § 1396r(e)(7), is phrased in terms of the requirements that states must meet to maintain federal funding. Courts that have considered whether the NHRA may give rise to a § 1983 action by a Medicaid recipient have come to different conclusions. Compare Rolland v. Romney, 318 F.3d 42 (1st Cir.2003) (finding a private right of action under § 1396r); Grant ex rel. Family Eldercare v. Gilbert, 324 F.3d 383, 387 n. 5 (5th Cir.2003) (assuming without deciding that a right of action exists under § 1396r(e)(7)(C)(i)(I) of the NHRA); Ottis v. Shalala, 862 F.Supp. 182, 187 (W.D.Mich.1994) (finding nursing home resident had a private right of action under § 1396r); Martin v. Voinovich, 840 F.Supp. 1175, 1200-02 (S.D.Oh.1993) (“Martin 1993 ”) (same), with Sparr v. Berks County, 2002 WL 1608243 (E.D.Pa. July 18, 2002) (finding no private right of action under § 1396r); Brogdon ex. rel. Cline v. Nat’l Healthcare Corp., 103 F.Supp.2d 1322, 1330-32 (N.D.Ga.2000) (no private right of action against nursing home). Most of these decisions, however, were rendered prior to the Supreme Court’s decision in 2002 in Gonzaga, which, as noted above, narrowed the scope of the first Blessing factor. The only two post-Gonzaga NHRA decisions — Rolland and Sparr — curiously came to opposite conclusions as to whether § 1396r creates an enforceable right of action. Rolland barely mentions Gonzaga (the decision is noted twice in passing— once in footnote eight and again with respect to the question of whether the statute is “vague & amorphous”), and Sparr fails to cite Gonzaga at all. These cases thus fail to provide any useful guidance for determining whether § 1396r creates an enforceable right after Gonzaga. Analyzing the PASRR provisions of the NHRA in light of Gonzaga, I conclude that they confer individual rights upon plaintiffs. Unlike the statutes in Gonzaga and Blessing, §§ 1396r(e)(7)(A) and (B) are directly concerned with “whether the needs of any particular person have been satisfied.” Blessing, 520 U.S. at 343, 117 S.Ct. at 1361, quoted in Gonzaga, 536 U.S. at 288, 122 S.Ct. at 2278. In Blessing, the Court pointed out that the statute at issue provided a “yardstick for the Secretary to measure the systemwide performance” of a state program. Id. at 343, 117 S.Ct. at 1361. Here, in contrast, the statute’s concern is whether each individual placed in a nursing home actually requires nursing care, and if so, what additional services the individual requires. 42 U.S.C. §§ 1396r(e)(7)(A)(i), (e)(7)(B)(i); see also id. § 1396r(b)(3)(F)(i) (outlining the requirements for the state’s determinations). The NHRA provision requiring pread-mission screening includes specific language referring to the persons benefited— “determinations ... for mentally ill ... individuals.” 42 U.S.C. § 1396r(e)(7)(A)(i); see also id. § 1396r(b)(3)(F)(i) (State must determine “prior to admission that, because of the physical and mental condition of the individual, the individual requires the level of services provided by a nursing facility, and, if the individual requires such level of services, whether the individual requires specialized services for mental illness.”). The language in the provision requiring resident reviews uses language that is even more clearly “rights-creating” — “in the case of each resident of a nursing facility who is mentally ill....” 42 U.S.C. § 1396r(e)(7)(B)(i). Although these provisions are phrased in terms of the responsibilities imposed upon a state, their plain purpose is to protect the rights of individuals. See Johnson, 442 F.3d at 360, 363 (finding a right of action by low-income families even though the provision at issue required payments be made to landlords as opposed to being made to the intended beneficiaries of the statute, low-income families). They are thus distinguishable from the FERPA provision that the Court found to be “two steps removed from the interests of individual students and parents,” Gonzaga, at 536 U.S. at 287, 122 S.Ct. at 2277, because it concerned policies and practices that must be in place to obtain federal funding. Here, the procedures required by PASRR directly impact the individual, in that they determine whether he or she will be placed in a nursing home and what services he or she will receive. Accordingly, § 1396r(e)(7) places “an umnistakeable focus on the benefited class” — individuals with mental illness who have been or will be placed in nursing homes. Gonzaga, 536 U.S. at 284, 122 S.Ct. at 2275. The statute’s requirements that individualized determinations be made, 42 U.S.C. §§ 1396r(e)(7)(A), 1396r(e)(7)(B), suggest that it was intended to create “an individual entitlement to services,” Gonzaga, 536 U.S. at 281, 122 S.Ct. at 2274 (contrasting the provision in Blessing which required a state to “substantially comply” with the Social Security Act’s requirements), and thus “give rise to individual rights,” id. at 288, 122 S.Ct. at 2278. Finally, the fact that the statute is phrased in terms of requirements for a state plan does not foreclose a finding that the statute also includes individual rights-creating language. Several courts have concluded that the Medicaid provisions they confronted conferred individual rights despite phrasing that imposed requirements on participating state plans because it was clear that the provisions otherwise had an individualized focus. Wilder, 496 U.S. at 502-03, 110 S.Ct. at 2514; Rabin, 362 F.3d at 202; Harris, 442 F.3d at 461; Sabree, 367 F.3d at 182. In Rabin, the Second Circuit focused on § 1320a-2, which specifically states that a “provision is not to be deemed unenforceable because of its inclusion in a section of this chapter requiring a State plan or specifying the required contents of a State plan.” Rabin, 362 F.3d at 202 (quoting 42 U.S.C. § 1320a-2). Except for the “plan” language, the PASRR provisions at issue here similarly reflect an individual focus and are therefore properly read to confer individual rights. The legislative history leading to the enactment of the NHRA provides further compelling evidence of Congressional intent to create an implied right of action. In Rolland, 318 F.3d at 45-47, the First Circuit examined the legislative history of the NHRA at length, and it bears repeating here: In 1987, Congress passed the NHRA, part of the Omnibus Budget Reconciliation Act, as a response to th[e] apparently widespread problem [of mentally ill and mentally retarded individuals being placed in nursing homes that were unable to provide the necessary and appropriate services and treatments]. The report from the House of Representatives began: “Substantial numbers of mentally retarded and mentally ill residents are inappropriately placed, at Medicaid expense, in [skilled nursing facilities] or [intermediate care facilities]. These residents often do not receive the active treatment or services that they need. A recent [Government Accounting Office] review of mentally retarded residents in [these facilities] in Connecticut, Massachusetts, and Rhode Island concluded that the active treatment needs of these individuals were generally not being identified or met.” The NHRA attempted to ensure that those placed in nursing homes actually needed nursing care and that once residing in a nursing home, individuals would receive the other kinds of treatment they needed. Towards that end, the NHRA established requirements for nursing homes in their care of mentally retarded [and mentally ill] residents, 42 U.S.C. § 1396r(b); instituted specific enumerated rights for residents, id. § 1396r(c); and required states to screen and provide services to mentally retarded [and mentally ill] residents, id. § 1396r(e). Rolland, 318 F.3d at 46 (quoting H.R.Rep. No. 100-391, pt. 1, at 459, reprinted in 1987 U.S.C.C.A.N. 2313-279). With respect to individuals with mental illness, the population relevant to this case, the House Report further noted: Testimony heard by the Subcommittee on Health and the Environment indicates that, in 1985, roughly 980,000 nursing home residents, about two-thirds of the nursing home population, had a primary or secondary diagnosis of mental disorder. Of the nursing home population under age 55, approximately 70 percent have a mental disorder diagnosis; for a number of these diagnoses, such as schizophrenia, depressive disorder, and anxiety disorders, active treatment in community settings can be appropriate. [Accordingly,] the Committee has adopted a two-step approach to end the inappropriate placement of mentally ill or mentally retarded individuals in nursing facilities. H.R.Rep. No. 100-391, pt. 1, at 459. In concluding that § 1396r created a private right of action, the First Circuit in Rolland found that [t]he NHRA speaks largely in terms of the persons intended to be benefitted, nursing home residents.... The statute contains a laundry list of rights to be afforded residents and commands certain state and nursing home activities in order to ensure that residents receive necessary services. In short, after clearly identifying those it seeks to protect, the statute goes on to endow them with particular rights, utilizing “rights-ereating” language. Rolland, 318 F.3d at 53. See also Martin 1993, 840 F.Supp. at 1200 (finding that the PASRR provisions created enforceable rights). Defendants’ strongest argument is that the NHRA is a spending statute; as noted above, the Supreme Court suggested in Gonzaga that spending statutes generally do not create enforceable rights. Gonzaga, 536 U.S. at 280-81, 122 S.Ct. at 2273-74. Some courts have found this argument persuasive. See Sparr, 2002 WL 1608243; Brogdon, 103 F.Supp.2d 1322. The Second Circuit, however, has not clearly decided whether funding statutes m