Susan J. v. Riley (616 F. Supp. 2d 1219, 2009)

MEMORANDUM OPINION AND ORDER

MARK E. FULLER, Chief Judge,

I.INTRODUCTION

Plaintiffs are adults with disabilities and mental retardation who bring this class action for declaratory and injunctive relief to declare their rights, to remedy alleged violations of the Social Security (Medicaid) Act, 42 U.S.C. §§ 1396 et seq., and to redress alleged deprivations of their due process rights under the Fourteenth Amendment to the United States Constitution. This ease is before the Court on the following summary judgment motions: Defendants’ Motion for Summary Judgement as to All Claims Brought By Paul B. (Doc. # 127); Defendants’ Motion for Summary Judgment as to All Claims Brought by Susan J., Angie D., Elizabeth A., Charles P., and Nicholas A. (Doc. # 152); Defendants’ Motion for Summary Judgment (Doe. # 172); and Plaintiffs’ Motion for Partial Summary Judgment on “Reasonable Promptness” Claim (Doc. # 211).

For the reasons set forth in this Memorandum Opinion and Order, Defendants’ Motion for Summary Judgment as to All Claims Brought by Paul B. (Doc. # 127) is due to be DENIED. Defendants’ Motion for Summary Judgment as to All Claims Brought by Susan J., Angie D., Elizabeth A., Charles P., and Nicholas A. (Doc. # 152) is due to be GRANTED with respect to Elizabeth A. and Charles P., due to be DENIED with respect to Angie D. and Susan J, and due to be DENIED as moot with respect to Nicholas A. Defendants’ Motion for Summary Judgment (Doc. # 172) is due to be GRANTED in part and DENIED in part, and Plaintiffs’ Motion for Partial Summary Judgment on “Reasonable Promptness” Claim (Doc. # 211) is due to be DENIED. In the end, all that remains (and they remain completely) are the claims of Subclasses Two and Three.

II.JURISDICTION AND VENUE

This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343 because Plaintiffs claims are pursuant to 42 U.S.C. § 1396 et seq., § 1983, and the Due Process Clause of the Fourteenth Amendment. The parties do not contest venue and personal jurisdiction, and the Court finds a sufficient basis for each.

III.PROCEDURAL HISTORY

On July 12, 2000, Named Plaintiffs filed suit against Don Siegelman in his official capacity as Governor of the State of Alabama, Kathy Sawyer in her official capacity as Commissioner of Mental Health and Mental Retardation for the State of Alabama, and the Alabama Department of Mental Health and Mental Retardation seeking declaratory and injunctive relief to enforce their rights under the Social Security (Medicaid) Act, 42 U.S.C. §§ 1396 et seq. and the United States Constitution. (Doc. #1.) On May 20, 2003, the Court terminated Defendant Siegelman and added Defendant Bob Riley in his official capacity as Governor of the State of Alabama. (Doc. # 21.) Likewise, on August 17, 2007, the Court terminated Defendant Sawyer and added Defendant John Houston in his official capacity as Commissioner of the State of Alabama Department of Mental Health and Mental Retardation. (Doc. # 117.)

With leave of this Court, Plaintiffs filed a Second Amended Complaint on June 21, 2005 (Doc. # 46) and Third Amended Complaint on July 26, 2007 (Doc. # 107) (“Third Amended Complaint”).

On April 24, 2007, Plaintiffs filed a motion to certify the case as a class action (Doc. # 87), which this Court denied on September 12, 2007 (Doc. # 126). Plaintiffs then filed a Second Motion to Certify Class (Doc. # 128), which this Court granted in part and denied in part on October 24, 2008 (Doc. # 222). The Court certified two subclasses:

Subclass Two: All persons with mental retardation who have applied for services compensable under Alabama’s Home and Community Based Waiver Programs but who have been adjudged ineligible and/or denied services without notice and opportunity for hearing.

Subclass Three: All persons with mental retardation who have applied for services compensable under Alabama’s Home and Community Based Waiver Programs and have not received a reasonably prompt claims determination.

(Doc. # 222.) Proposed Subclass One contained persons “with méntal retardation who have applied for services compensable under Alabama’s Home and Community Based Waiver Programs and who have been determined to be eligible for services but who have not received them with reasonable promptness or have received inadequate or inappropriate services.” The Court declined to certify this subclass because there was insufficient information available to make a numerosity determination. The Court also noted proposed Subclass One did not meet the adequacy requirement.

Upon joint motion of the Parties (Doc. #225), the Court staid the case pending interlocutory appeal under Rule 26(f) (Doc. #226). The Eleventh Circuit denied the Petition for Permission to Appeal on December 12, 2008. (Doc.. # 227.) The Court then held a Status Conference (Doc. # # 228, 230), lifted the stay (Doc. # 232), and set this case for trial in the Court’s June 29, 2009 term. (Doc. # 229.)

Currently before the Court are four motions for summary judgment filed by parties on both sides: (1) Defendants’ Motion for Summary Judgment as to All Claims Brought By Paul B (Doc. # 127), filed on September 19, 2007; (2) Defendants’ Motion for Summary Judgment as to All Claims Brought by Susan J., Angie D., Elizabeth A., Charles P., and Nicholas A. (Doc. # 152), filed on December 28, 2007; (3) Defendants’ Motion for Summary Judgment (Doc. # 172),- filed on January 22, 2008; and (4) Plaintiffs’ Motion for Partial Summary Judgment on “Reasonable Promptness” Claim (Doc. #211), filed on January 23, 2008. These four motions are ripe for disposition.

IV. FACTS

The Memorandum Opinion and Order granting the Amended Motion for Class Certification provides a full account of the facts of this case. See Susan J. v. Riley, 254 F.R.D. 439, 445-50 (M.D.Ala.2008) (Fuller, C.J.). The Court incorporates those largely undisputed facts by reference and assumes familiarity with them. This Section therefore provides only a brief summary of the case and a discussion of the claims of the named plaintiffs. The Court has carefully considered all deposition excerpts and documents submitted in support of and in opposition to the Motions. Because of the way this case has progressed, the Court has also considered its Order on Pretrial Hearing. (Doc. # 221.) There are cross-motions for summary judgment in this case, so the Court will consider the facts and reasonable inferences to be drawn from the facts in the light most favorable to the non-moving party as the Court considers each of the motions. With that caveat, the submissions of the parties, viewed in the light most favorable to the nonmoving party, establish the following relevant facts:

The named Plaintiffs represent a group of adults with mental retardation who are unable to care fully for themselves and require varying degrees of care and treatment. The Defendants are Bob Riley, in his official capacity as Governor of the State of Alabama, the Alabama Department of Mental Health and Mental Retardation (the “Department”), and John M. Houston (“Houston”), in his official capacity as Commissioner of the Department.

Plaintiffs seek placement in Alabama’s Home and Community Based Waiver programs (“HCB Waiver” or “Waiver”), which includes both the Mental Retardation Waiver program (“MR Waiver”) and the Living at Home Waiver program (“LAH Waiver”). They also seek to enforce procedural protections they claim the Constitution and the Medicaid Act provide to applicants for slots in those programs. They present their claims in four counts. They claim: (1) that Defendants have violated the Medicaid act by failing to provide ICF/MR and/or Waiver services with reasonable promptness as required by 42 U.S.C. § 1396a(a)(8); (2) that Defendants have also failed to comply with the comparability requirements of 42 U.S.C. § 1396a(a)(10); (3) that Defendants have deprived Plaintiffs of their right to apply pursuant to 42 U.S.C. § 1396a(a)(3); and (4) that Defendants have violated Plaintiffs’ due process rights guaranteed by the United States Constitution.

A. Susan J.

Susan J. is a forty-six year old female with Down Syndrome associated with mental retardation and a seizure disorder. She applied for residential services in 1992 and withdrew her request for these services in 2007. She applied for day habilitation services in 1993 and began receiving them in 1999. She remains on the waiting list for respite services with a criticality score of one because she may want additional services in the future. As of January 2008, her ranking on the waiting list was 1256. She would like financial reimbursement for persons who transport her to her day habilitation program, but the state has not authorized such reimbursement under its Waiver program.

B. Angie D.

Angie D. is a thirty-one year old female with cerebral palsy associated with mental retardation. She applied for day habilitation LAH Waiver services in 2000 and began receiving them in June 2007. She is on the waiting list for residential services, but does not seek them at this time. Angie D. is eligible for Medicaid medical assistance benefits.

C.Elizabeth A.

Elizabeth A. is a twenty-eight year old female with Rett Syndrome, neurological problems, and mental retardation. She applied for day habilitation Waiver services in 1995 and was offered these services in October 2006, but her mother turned them down because she thought they were inadequate. From November 2006 to September 2007, while still on the waiting list for an MR Waiver slot, Elizabeth received twenty hours per week of respite and support services through another waiver program that is not at issue in this case. As of July 24, 2007, she was number 499 on the waiting list. In September 2007, she obtained an MR Waiver slot and began receiving eleven hours per day of in-home support services. As she was receiving all the services she sought, Elizabeth was removed from the waiting list.

D.Charles P.

Charles P. is a twenty-four year old male with mental retardation associated with autism. He applied for day habilitation and supported employment services in 2005. As of July 24, 2007, he was number 362 on the waiting list. In August 2007, he obtained an LAH Waiver slot and is receiving day habilitation services and supported employment services. Charles P. is no longer on the waiting list. He is eligible for and receives Medicaid medical assistance benefits and Social Security Income.

E.Paul B.

Paul B. is a twenty-two year old male with Down Syndrome, cerebral palsy, and severe developmental delays due to mental retardation. Paul applied for HCB Waiver services in approximately 1999. He is eligible for and received Medicaid medical assistance and Social Security Income. In May 2007, Paul was entered onto the list for day habilitation services, and was number 907 on that list on July 24, 2007. Paul aged out of the school system in May 2007, and was enrolled in the MR Waiver program in September of that year. He began receiving day habilitation services at that time. In September 2008, his mother requested additional services for him.

F.Beverly W.

Beverly W. is a fifty year old female with mental retardation, brain damage, and possible fetal alcohol syndrome. She submitted paperwork requesting HCB Waiver services in 1992 and again in 1996 and is not receiving those services. Between 1996 and 2004 Beverly’s caretaker received no communication regarding the status of Beverly’s application or her place on the waiting list.

G.Tara L.

Tara L. is a twenty-nine year old female with mental retardation and autism. Tara’s caretaker applied for residential, day, and support services though the local 310 board. She is qualified for Medicaid medical assistance benefits, Targeted Case Management, and Social Security Income. As of September, 2008, Tara was number 462 on the waiting list for day habilitation services. Tara is currently not receiving day habilitation services.

H.Krystal W.

Krystal W. is a twenty-six year old female with mental retardation. She is eligible for and receives Medicaid medical assistance benefits and Social Security Income. Her mother claims she submitted a request to the Department of Mental Retardation in 2000 requesting day habilitation and group home services. Her mother further claims that she made numerous calls to the relevant agencies to determine Krystal’s status on the waiting list in the three years following the initial application. Defendants contend they received the application in November 2007. As of January 15, 2008, Krystal was number 464 on the waiting list. She was approved for the LAH Waiver on August 26, 2008, and she began receiving day habilitation services three days later.

I.Brishette W.

Brishette W. is a twenty-four year old female with mental retardation. She is seeking day habilitation services, and, in 2005, submitted an application for those services. She became eligible for Alabama Medicaid services in 2006, because she is a new Alabama resident. As of September 2008, she is number 583 on the waiting list with a criticality score of four. Brishette W. is not receiving HCB Waiver services.

J.Rico C.

Rico C. is a thirty-four year old male with mental retardation. He is eligible for and receives Medicaid medical assistance and Social Security Income. As of January 15, 2008, Rico was number 528 on the waiting list for day services and for residential services with a criticality score of four and one, respectively.

K.Shavon H.

Shavon H. is a thirty-nine year old female with mental retardation, cerebral palsy, visual and hearing impairments, and digestive difficulties. Shavon received day habilitation services for a brief period in 2002. She subsequently declined offers for services and requested that her case be closed. Shavon is not currently receiving Waiver services and is not on the waiting list.

V. DISCUSSION: JURISDICTIONAL ISSUES

Defendants advance two classes of jurisdictional arguments, which this Court must address prior to reaching the merits of the Motions. See Seaborn v. Florida, 143 F.3d 1405, 1407 (11th Cir.1998). First are the familiar justiciability doctrines of standing, mootness, and ripeness. Defendants argue that the claims of the individual plaintiffs are moot because each plaintiff is receiving reimbursement for all appropriate Waiver services. Defendants also argue that Plaintiffs’ claims are not ripe to the extent they concern services not yet requested and that Plaintiffs seek reimbursement for medical services that are not compensable, and that Plaintiffs do not have standing to seek prospective injunctive relief. Second are Eleventh Amendment and absolute sovereign immunity. Defendants argue that this Court lacks jurisdiction to compel state Defendants to comply with state law and that the Eleventh Amendment to the United States Constitution bars claims against the Alabama Department of Mental Health and Mental Retardation. The Court is satisfied that it has subject matter jurisdiction over the claims brought by Paul B., Angie D., Susan J., Brishette W., Rico C., Tara L., Beverly W., and Krystal W., but not over the claims brought by Elizabeth A., Charles P., and Shavon H. and not over claims brought against the Alabama Department of Mental Health and Mental Retardation. The Court therefore retains jurisdiction over the individual claims of Paul B., Angie D., Susan J., Brishette W., Rico C., Tara L., Beverly W., and Krystal W. and over the claims of both subclasses.

A. Legal Standard

Defendants characterize their motions as ones for summary judgment, which they are to some extent. Defendants include in the motions, however, arguments that clearly attack the subject matter jurisdiction of this Court. Their arguments that various claims are moot or not ripe and that some plaintiffs do not have standing concern subject matter jurisdiction and are “appropriately dealt with by means of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1).” Troiano v. Supervisor of Elections in Palm Beach County, Fla., 382 F.3d 1276, 1278 n. 2 (11th Cir.2004). Therefore, when a party seeks to have a case dismissed on justiciability grounds, the district court should treat the motion as one to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), even if the party has labeled its motion as one for summary judgment. See Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1182 (11th Cir.2007) (mootness); United States v. Blue Cross & Blue Shield of Ala., Inc., 156 F.3d 1098, 1101 n. 7 (11th Cir.1998) (mootness); Elend v. Basham, 471 F.3d 1199 (11th Cir.2006) (ripeness); Hames v. City of Miami, 479 F.Supp.2d 1276 (M.D.Fla.2007) (subject matter jurisdiction). To the extent these motions for summary judgment concern the subject matter jurisdiction of the Court, the Court considers them under the standards of Rule 12(b)(1).

“A Rule 12(b)(1) motion may challenge the court’s subject matter jurisdiction based on the face of the pleadings or based on the actual substantive facts of the case.” Morrison v. Amway Corp., 323 F.3d 920, 925 n. 5 (11th Cir.2003). These two forms of attack differ substantially. Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir.1990). Where the jurisdictional attack is based on the face of the pleadings, coruts merely look to determine whether the plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in the plaintiffs’ complaint are taken as true for purposes of the motion. Id. at 1529. When addressing a factual challenge, on the other hand, a court “is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” See id. at 1528-29 (quoting Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. May 20, 1981)). Generally, in the context of a factual challenge to jurisdiction, there is no presumption of truthfulness in favor of the plaintiffs allegations and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. See id. at 1529-30. Because these jurisdictional challenges are made at a stage when the factual record is well developed, the Court will consider Defendants’ jurisdictional arguments as factual challenges and will evaluate for itself the merits of their jurisdictional claims.

B. Immunity

1. Eleventh Amendment

Defendants argue that “Plaintiffs’ claims against the Alabama Department of Mental Health and Mental Retardation are barred by the Eleventh Amendment.” (Doc. # 178 83.) Because the Department enjoys Alabama’s Eleventh Amendment immunity as a department of the State, Plaintiffs’ claims against the Department are due to be dismissed.

The Eleventh Amendment provides: “The Judicial power of the United States shall not be construed, to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const, amend. XI. The Supreme Court has not, however, limited the application of this immunity to the suits described in the text of the Eleventh Amendment. The Court has extended a State’s immunity to suits brought by the State’s own citizens in order to respect the “broader concept of immunity” implicit in the Constitution and exemplified by the Eleventh Amendment. Doe v. Chiles, 136 F.3d 709, 719 (11th Cir.1998) (quoting Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997)). The decisions of the Supreme Court thus establish that “an unconsenting State is immune from suits brought in federal courts by her own citizens as well as citizens of other states.” Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (citing Employees of Dep’t of Pub. Health & Welfare, Mo. v. Dep’t of Pub. Health & Welfare, Mo., 411 U.S. 279, 280, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973)).

Agencies, departments, and instrumentalities of states are entitled to the same Eleventh Amendment immunity as the states themselves. Pennhurst, 465 U.S. at 100-01, 104 S.Ct. 900 (citing Florida Dep’t of Health v. Fla. Nursing Home Ass’n, 450 U.S. 147, 101 S.Ct. 1032, 67 L.Ed.2d 132 (1981) (per curiam); Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (per curiam)); Harden v. Adams, 760 F.2d 1158, 1163 (11th Cir.1985); University of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 411-12 (11th Cir.1999) (“In the context of Eleventh Amendment immunity, we have held that state universities are “agencies or instrumentalities” of the state, and thus are immune from suit in federal court.”). Whether the entity sued can be considered an agency, department, or instrumentality of the state is generally determined by reference to state law. Harden, 760 F.2d at 1163 (citing Mt. Healthy Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)); Sessions v. Rusk State Hosp., 648 F.2d 1066 (5th Cir. June 26, 1981); Cross v. Ala. Dep’t of Mental Health & Mental Retardation, 49 F.3d 1490, 1503 (11th Cir.1995). Factors that bear on this determination include the definition of “state” and “political subdivision”; the degree of state control over the entity; and the fiscal autonomy of the entity. Harden, 760 F.2d at 1163; Fouche v. Jekyll Island-State Park Auth., 713 F.2d 1518, 1520 (11th Cir.1983).

The issue of Eleventh Amendment immunity thus turns on whether the Alabama Department of Mental Health and Mental Retardation is an agency, department or instrumentality of the state. The Court finds that it is. In Cross, 49 F.3d at 1502-03, the Eleventh Circuit explained, in the Eleventh Amendment context, that “The Alabama Department of Mental Health and Mental Retardation is a department of the state government.” (citing Ala.Code § 22-50-2 (1990)). Furthermore, Alabama Code § 22-50-2 provides:

There shall be created and established a department of the state government to be known as the Department of Mental Health and Mental Retardation. The department shall be composed of the State Mental Health and Mental Retardation Commissioner and such divisions and administrative sections as the Mental Health and Mental Retardation Commissioner may direct. The principal offices of the department shall be located at the state capitol. The department shall perform the functions prescribed in this chapter.

Moreover, the statutes that govern the Department make it clear that the degree of State control over the entity is absolute and the Department is not at all fiscally autonomous. See Harden, 760 F.2d at 1163; Fouche, 713 F.2d at 1520. Under the relevant provisions of the Alabama Code, the Department is required to “perform the functions described in this chapter,” Ala.Code. § 22-50-2, the offices of the department are “at the state capitol,” id., all fees collected by the Department must be spent either within the Department or in support of state hospitals, id. § 22-50-3, the Governor is chairman .of the board of trustees and appoints the members of the board, id. § 22-50-5, the trustees’ expenses are paid from the state treasury, id. § 22-50-8, the Department must give an annual report to the Governor and distribute copies to members of the State legislature, id. § 22-50-13, the Department must request operating funds from the Governor who should include those requests in his appropriation bill, id. § 22-50-14, final decisions of the Department are subject to judicial review, id. § 22-50-19, and the Department may hire police officers to assist it in carrying out its tasks, id. § 22-50-21.

In light of the foregoing, the Court finds that the Alabama Department of Mental Health and Mental Retardation is an agency, department or instrumentality of the State, and is therefore entitled to Eleventh Amendment immunity in this case. The degree of state control over the entity is complete, and the fiscal autonomy of the entity is slight. See Harden, 760 F.2d at 1163. Therefore, Defendants’ Motion is due to be granted to the extent it seeks dismissal of all claims against the Department.

2. State Sovereign Immunity

Defendants also argue that “to the extent that Plaintiffs seek to enjoin the State Defendants to follow Alabama law ... the State Defendants are entitled to absolute sovereign immunity.” (Doc. # 178 81.) The Court agrees that under Pennhurst State School & Hospital v. Halderman it lacks power to compel state officials to obey state law. See 465 U.S. 89, 106, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (holding that federal courts are barred by the Eleventh Amendment from ordering state officials to conform their conduct to state law, even when only prospective injunctive relief is sought). Plaintiffs have not requested this Court issue an injunction compelling compliance with state law, and their claim seeks vindication of federal statutory and constitutional rights. While this argument currently appears to be irrelevant to this Case, Defendants’ Motion for Summary Judgment is due to be granted to the extent it seeks to prevent this Court from compelling state officials to comply with state law.

C. Justiciability

The courts of the United States are courts of limited jurisdiction. The Constitution of the United States, Article III, Section 2, provides that the judicial power of the United States shall extend only to “cases” and “controversies.” U.S. Const. art. III, § 2; see also Coral Springs St. Sys., Inc. v. City of Sunrise, 371 F.3d 1320, 1327 (11th Cir.2004) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 559, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). Defendants argue that Plaintiffs lack standing, that their claims are moot, and that some of their claims are not ripe.

1. Legal Framework

Mootness is among the limitations placed on the power of the federal courts because “[b]y its very nature, a moot suit ‘cannot present an Article III case or controversy.’ ” Nat’l Advertising Co. v. City of Miami, 402 F.3d 1329, 1332 (11th Cir.2005) (citing Coral Springs, 371 F.3d at 1328). “A case is moot when it no longer presents a live controversy with respect to which the court can give meaningful relief.” Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1183 (11th Cir.2007) (quoting Troiano v. Supervisor of Elections in Palm Beach County, Fla., 382 F.3d 1276, 1281-82 (11th Cir.2004)). There are three exceptions to the mootness doctrine:

First, the doctrine of voluntary cessation provides an important exception to the general rule that a case is mooted by the end of the offending behavior. Sheely, 505 F.3d at 1184 (citing Troiano, 382 F.3d at 1282). “It is well settled that a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). A defendant who asserts that a plaintiffs claims are moot because of the defendant’s voluntary conduct bears the “heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again.” Id.; United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968) (noting that the test for mootness in cases of voluntary cessation is “a stringent one” and that “[a] case might become-moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur”). “A defendant’s assertion that it has no intention of reinstating the challenged practice ‘does not suffice to make a case moot’ and is but ‘one of the factors to be considered in determining the appropriateness of granting an injunction against the now-discontinued acts.’ ” Sheely, 505 F.3d at 1184 (citing United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953)). In the Eleventh Circuit, government actors are entitled to “the benefit of a rebuttable presumption that the offending behavior will not recur.” Sheely, 505 F.3d at 1184; Coral Springs, 371 F.3d at 1328-29. District courts must, however, “beware of efforts to defeat injunctive relief by protestations of repentance and reform, especially when abandonment seems timed to anticipate suit, and there is probability of resumption.” Sec’y of Labor, U.S. Dep’t of Labor v. Burger King Corp., 955 F.2d 681, 684 (11th Cir.1992) (quoting United States v. Oregon State Med. Soc’y, 343 U.S. 326, 333, 72 S.Ct. 690, 96 L.Ed. 978 (1952)).

Second, a district court may entertain a moot case if it arises from a situation that is “capable of repetition, yet evading review.” Bourgeois v. Peters, 387 F.3d 1303, 1308 (11th Cir.2004) (citation omitted). This exception has two requirements: “(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.” Id. (quoting Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975) (per curiam)).

Finally, with respect to class actions, a named Plaintiffs’ claim “must be live both at the time he brings suit and when the district court determines whether to certify the putative class. If the plaintiffs claim is not live, the court lacks a justiciable controversy and must dismiss the claim as moot.” Tucker v. Phyfer, 819 F.2d 1030, 1033 (11th Cir.1987) (citations omitted). In other words, “a lawsuit brought as a class action must present justiciable claims at each stage of the litigation; if the named plaintiffs’ individual claims become moot before a class has been certified, no justiciable claims are at that point before the court and the case must as a general rule be dismissed for mootness.” Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d 1030, 1046 (5th Cir. Unit A, July 27, 1981). In cases where the named Plaintiffs’ claims became moot after class certification, the Plaintiff may retain standing to pursue the class action because the class has a “legal status separate from the interest asserted by the [named plaintiffs].” Tucker, 819 F.2d at 1034 (quoting Sosna v. Iowa, 419 U.S. 393, 399, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975)). The act of certification brings the unnamed members of the class before the court for Article III purposes; so long as their claims are justiciable, the mootness of the original named plaintiffs claim does not require dismissal. Zeidman, 651 F.2d at 1045.

2. Discussion

Defendants argue first that the claims of Paul B., Susan J., Angie D., Elizabeth A., Charles P., and Nicholas A. are moot. (Doc. ## 127, 153.) Defendants also argue more globally that “Plaintiffs’ claims are moot because their needs have been [met] to the extent required under the existing terms of the controlling HCB waiver documents.” (Doc. # 178.)

As an initial matter, because part of this case is a class action, the claims of the subclass representatives must not be moot when the district court determines whether to certify the putative class. Tucker, 819 F.2d at 1033. This Court certified the class in this case on October 24, 2008. If the claims of Named Plaintiffs who are members of the certified subclasses became moot before that date, their claims must be dismissed. The Court continues to have jurisdiction, however, over the claims of the other named Plaintiffs who represent Subclasses Two and Three if their claims became moot after class certification. See id. at 1034; Zeidman v. J. Ray McDermott & Co. Inc., 651 F.2d 1030, 1045 (5th Cir. July 27, 1981) Additionally, if the claims of Named Plaintiffs who are not members of either certified subclass are moot now (or become so at any later point prior to judgment), their claims must be dismissed.

First, the Claims of Paul B. are not moot. The Complaint alleged that Paul B. needs but is not receiving day habilitation services. At the time of Defendants’ Motion as to Paul B., he was receiving all requested services and was no longer on the waiting list for services. He was in a MR Waiver slot and was receiving compensation for all services provided to him in accordance with the terms of the HCB Waiver documents. However, in September, 2008, Paul’s mother requested additional services for him. Therefore, his claim is not moot and Defendants’ Motion for Summary Judgment as to All Claims Brought by Paul B. is due to be denied.

The claims of Elizabeth A. and Charles P. are moot because neither of them is on the waiting list and they are both receiving all the services they requested. Elizabeth A. has been placed in a MR Waiver slot and receives in-home support services. Charles P. is enrolled in a LAH Waiver slot and attends a day habilitation program. Plaintiffs argue that Defendants have voluntarily ceased the offending behavior and would be free to resume it at any time. However, Plaintiffs have not meet the burden of overcoming the “rebuttable presumption that the offending behavior will not recur” to which the government defendants are entitled. Sheely, 505 F.3d at 1184; Coral Springs, 371 F.3d at 1328-29. Finally, Plaintiffs’ argument that these claims are “capable of repetition, yet evading review,” fails because there is no “reasonable expectation that the same complaining party would be subjected to the same action again” because neither Elizabeth A. nor Charles P. is on the waiting list. See Bourgeois, 387 F.3d at 1308. The undisputed evidence in this case also shows that once a person is in a Waiver slot, they usually only leave the slot because of relocation out-of-state or death. Therefore, Defendants’ Motion for Summary Judgment as to All Claims of Susan J., Angie D., Elizabeth A., Charles P., and Nicholas A. is due to be granted in part. It is due to be granted with respect to Elizabeth A. and Charles P.

On the other hand, the claims of Angie D. and Susan J. are not moot. Angie D. has been placed in a LAH Waiver slot and therefore is receiving the assistance she has requested. However, she remains on the waiting list for residential services, and her claims, to the extent they would otherwise be moot, are “capable of repetition, yet evading review,” because there is a “reasonable expectation that the same complaining party would be subjected to the same action again.” Bourgeois, 387 F.3d at 1308. Because Angie D. is on the waiting list for residential services, it is reasonable to expect she will need those services in the future. See id. Similarly, Susan J. remains on the waiting list for support services. Therefore, to the extent her individual claims would otherwise be moot, they are “capable of repetition, yet evading review,” because there is a “reasonable expectation that the [Susan J.] would be subjected to the same action again.” Id. Therefore, Defendants’ Motion for Summary Judgment as to All Claims of Susan J., Angie D., Elizabeth A., Charles P., and Nicholas A. is due to be denied in part. It is due to be denied with respect to Angie D. and Susan J.

Defendants also argue more generally that “Plaintiffs’ claims are moot because their needs have been [met] to the extent required under the existing terms of the controlling HCB waiver documents.” (Doc. # 178). Having already made determinations regarding the claims of Susan J., Elizabeth A., Charles P., Paul B., Angie D., and Nicholas A., the Court now turns to the claims of Beverly W., Tara L., Krystal W., Brishette W., Rico C., and Shavon H. This Court previously determined that the claims of Tara L., Beverly W., and Krystal W. were justiciable. Susan J., 254 F.R.D. at 449-50. Because the Court has no information to indicate their situations have changed since its prior Order, the Court is satisfied that their claims are justiciable and are not moot. Therefore, Defendants’ Motion for Summary Judgment is due to be denied to the extent it seeks to have the claims of Tara L., Beverly W., and Krystal W. dismissed.

Turning to the claims of Brishette W., Rico C., and Shavon H., the Court notes that Brishette W. is on the waiting list for services, ranked number 583 with a criticality score of four. Rico C. is on the waiting list for residential services and day services, with a criticality score of one and four, respectively. He is ranked number 528 on the waiting list. Finally, Shavon H. has declined offers for services and requested that her case be closed. She is therefore no longer on the waiting list. After reviewing the facts, the Court finds that the claims of Brishette W. and Rico C. present live controversies, but that the claims of Shavon H. do not at this time present a justiciable dispute. Therefore, Defendants’ Motion for Summary Judgment is due to be granted in part and denied in part. The Motion is due to be granted with respect to Shavon H. and denied with respect to Brishette W. and Rico C.

YI. DISCUSSION: SUBSTANTIVE ISSUES

Defendants seek summary judgment on all of Plaintiffs’ claims. Defendants’ Motion can be granted summarily with respect to Counts II and IV because of this Court’s prior rulings. The Court will then subject remaining claims to the tests posed by Defendants’ Motions and will determine whether Plaintiffs are entitled to summary judgment on the reasonable promptness claim.

A. Legal Standard

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “An issue of fact is ‘genuine’ if the record as a whole could lead a reasonable trier of fact to find for the nonmoving party. An issue is ‘material’ if it might affect the outcome of the case under the governing law.” Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1496 (11th Cir.1996) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

The party asking for summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The movant can meet this burden by presenting evidence showing there is no dispute of material fact, or by showing the nonmoving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Id. at 322-23, 106 S.Ct. 2548. Once the moving party has met its burden, Rule 56(e) “requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Id. at 324, 106 S.Ct. 2548. To avoid summary judgment, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). On the other hand, a court ruling on a motion for summary judgment must believe the evidence of the nonmovant and must draw all justifiable inferences from the evidence in the nonmoving party’s favor. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. After the nonmoving party has responded to the motion for summary judgment, the Court must grant summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).

B. Counts II and IV

On October 24, 2008, this Court granted in part and denied in part Plaintiffs’ Motion to Certify Class. Susan J. v. Riley, 254 F.R.D. 439 (M.D.Ala.2008) (Fuller, C.J.). In their opposition to class certification, Defendants argued Named Plaintiffs lacked standing to bring the claims associated with their respective subclasses. The nature of the standing challenge required the Court to decide whether Plaintiffs’ four counts stated grounds for relief. With respect to Count II, which alleges Defendants’ violated Medicaid’s comparability requirements, this Court stated:

Plaintiffs’ second count alleges that Defendants violated 42 U.S.C. § 1396a(a)(10)(B) by failing to provide comparable services to Waiver participants. As a general matter, when states provide assistance under Medicaid programs, benefits must be comparable among recipients. See 42 U.S.C. § 1396a(a)(10)(B); see also Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175, 1186 n. 12 (10th Cir.2003). However, states may waive the comparability requirement for programs such as the HCB Waiver programs at issue in this ease. Section 42 U.S.C. § 1396n(e)(3) provides that

A waiver granted under this subsection may include a waiver of the requirements of section 1396a(a)(l) of this title (relating to statewideness), section 1396a(a)(10)(B) of this title (relating to comparability), and section 1396a(a)(10)(C)(i)(III) of this title (relating to income and resource rules applicable in the community).

As is plainly permissible on the face of this statute, Alabama’s HCB Waiver programs include a waiver of the comparability requirement. As such, Alabama is not required to provide comparable services across participants in the HCB Waiver programs. In other words, Plaintiffs enjoy no statutory right to comparable treatment in the context of the HCB Waiver programs.

Susan J., 254 F.R.D. at 455 (internal footnotes omitted). In their Motion for Summary Judgment, Defendants correctly point out that “The State of Alabama has waived comparability under 42 U.S.C. § 1396a(a)(10)(B).” (Doc. # 178 79.) Defendants also offer the uncontroverted affidavit testimony of Eranell Mclntosh-Wilson, who stated that “With respect to the MR Waiver program and the LAH Waiver program, Alabama has elected to waive the requirements of 42 U.S.C. § 1396a(a)(10)(B). Thus the comparability requirement does not apply to Alabama’s HCB Waiver programs” (Id. Ex. B ¶ 3.) In accordance with the Court’s earlier holding and the undisputed facts, Defendants’ Motions for Summary Judgment are due to be granted to the extent they seek to have Count II dismissed.

Similarly, Defendants’ opposition to class certification required the Court to determine the scope of the right allegedly protected by the substantive due process protections of the Fourteenth Amendment to the United States Constitution. With respect to Count IV, this Court said:

Count IV of Plaintiffs’ Third Amended Complaint alleges that Defendants violated the Constitutional rights of the putative class members by “failing] or refus[ing] to remedy the known and continuing violation of plaintiffs’ clearly established constitutional rights to habilitation, care, and treatment.” The Court cannot locate, in caselaw or elsewhere, support for the proposition that there is a “clearly established constitutional right to habilitation, care, [or] treatment.” Because there is no substantive due process right that guarantees protection from the conduct Plaintiffs complain of, there is no alleged violation of § 1983, and that statute cannot support standing in this case. Accordingly, Plaintiffs’ Motion for Class Certification is DENIED to the extent the subclasses implicate alleged violations of substantive due process rights.

Susan J., 254 F.R.D. at 457-58 (internal footnotes and citation omitted). In accordance with this holding, Defendants’ Motions for Summary Judgment are due to be granted to the extent they seek to have Count IV dismissed.

C. ICF/MR and HCB Waiver

Defendants argue they are entitled to summary judgment “as to any ICF-MR claims asserted by the Plaintiffs in this case.” (Doc. # 178 48.) Defendants’ felt need to argue against ICF/MR claims is a result of Plaintiffs’ repeated use of “ICF-MR and/or waiver services” language. (Doc. # 46 33); (Doc. 107 ¶ ¶ 1, 26); (Doc. #170 ¶¶ 6(a), (b), (c), & (d)). After Defendants filed the Motions currently under submission, Plaintiffs clarified that “they do not seek institutional placement (ICF/MR) services.” (Doc. # 183 ¶¶ 3(a)-(d)); (Doc. # 187 20) (“plaintiffs do not actively seek to be institutionalized”). Plaintiffs have stated that they employed the “and/or” language because eligibility for ICF/MR services is a prerequisite for participation in the HCB Waiver program.

Nevertheless, Defendants moved for summary judgment on any ICF/MR claims, so the Court mil decide the issue. As discussed above, Plaintiffs do not seek ICF/MR services. Additionally, Defendants discovered and adduced uncontroverted evidence that none of the Named Plaintiffs sought ICF/MR placement. (Doc. # 195 4 n. 2.) While it is not clear to the Court that there are any claims in this Case that seek ICF/MR placement, to the extent Plaintiffs do seek placement in an ICF/MR institution, Defendants’ Motion for Summary Judgment is due to be granted.

D. Remaining Individual Claims

Plaintiffs’ proposed Subclass One contained persons who have been determined eligible, but have not received services with reasonable promptness in violation of § 1396a(a)(8). The Court previously denied certification of this class because of problems with adequacy and numerosity. Susan J., 254 F.R.D. at 458-59, 459 n. 26. The individual claims of members of this putative subclass remain, however. Defendants mount numerous challenges to these claims in particular, and Plaintiffs have moved for summary judgment on these claims as well.

1. Legal Framework

The remaining individual claims seek remedy for violations of the reasonable promptness requirement of § 1396a(a)(8). As discussed more fully in this Court’s Class Certification Order, the Medicaid Act requires states provide some services and permits them to provide other services. The latter group is referred to as “optional services,” and the HCB Waiver programs are optional services. While it is true that the Waiver program is governed by an agreement between the state and the federal government, “when a state elects to provide an optional service, that service becomes part of the state Medicaid plan and is subject to the requirements of federal law.” ' Susan J., 254 F.R.D. at 451 (citing Doe v. Chiles, 136 F.3d 709, 714 (11th Cir.1998)); see also Boulet v. Cellucci, 107 F.Supp.2d 61, 76 (D.Mass.2000) (“once a state opts to implement a waiver program and sets out eligibility requirements for that program, eligible individuals are entitled to those services and to the associated protections of the Medicaid Act”). Section 1396a(a)(8) provides:

[A state plan for medical assistance must] provide that all individuals wishing to make application for medical assistance under the plan shall have opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible individuals.

2. Discussion

a. Finite and Discretionary

Defendants first argue that “because participation in the HCB Waiver programs is both finite and discretionary, there is no entitlement either to participate in the Waiver programs or to receive financial reimbursement for any particular waiver services.” (Doc. # 178 48.) The thrust of this argument is that Plaintiffs have no right to complain about not receiving medical assistance with reasonable promptness because they have no legitimate claim of entitlement to such assistance under the Waiver. Defendants cite the report of their expert, which contains the following language:

The services and supports of all state HCB waiver programs, including those in Alabama, are not an entitlement for individuals just because they are eligible for Medicaid services.... [A] person must be fully enrolled in an HCB S waiver program before he or she is entitled to receive services offered through the waiver. Even then, the individual must have an assessed need for the service and the service must be determined necessary to assure his health and welfare.

(Doc. # 178 49) (quoting Doc. # 179 Ex. A, Affidavit of Cathy Anderson ¶ 24.) Defendants contrast this with their characterization of Plaintiffs’ position: an assertion “that everyone who is on the waiting list is entitled to an HCB Waiver slot, and that the State Defendants must therefore unilaterally increase the cap on the HCB Waiver to provide unlimited financial reimbursements for everyone on that list.” (Doc. # 178 50.) Defendants’ argument stands on three legs:

i. The Cap

First, Defendants argue that because of the existence of a legal cap on the number of eligible Waiver participants, no one has a “right” to medical assistance under the Waiver. However, the cap on Waiver participation is “simply a constraint on eligibility” and does not relieve Defendants of their statutory obligations with respect to individuals who would not exceed the cap and otherwise meet the eligibility requirements. Susan J., 254 F.R.D. at 454. “Individuals who apply after the cap has been reached are not eligible.... [T]he eligible individuals under the cap are entitled to waiver services. In short, the cap does not support the defendants’ position that the state has total discretion in providing waiver services.” Id. (quoting Boulet, 107 F.Supp.2d at 77-78). Therefore, the reasonable promptness provision applies to medical assistance if an individual can prove that he or she is entitled to a vacant slot or is allocated a slot and the individual is eligible for the assistance, but not when a person meets the preliminary eligibility requirements and a slot is not available. Id. Eligible individuals under the cap are entitled to medical assistance under the applicable Waiver and to the provision of such assistance with reasonable promptness.

Therefore, Defendants’ argument is not fatal to Plaintiffs’ claim, because the cap merely limits the eligible persons to those who (1) meet the preliminary requirements for participation in the HCB Waiver programs, and (2) are entitled to one of the lawfully limited number of Waiver slots that exist. The import of this holding is not, as Defendants assert, that no one has a right to medical assistance when slots are available. To the contrary, some persons do have a right to assistance and to provision of such assistance in compliance with the requirements of the Medicaid Act.

ii. Services are Limited

Second, Defendants argue that the services compensable under the HCB Waivers are limited. According to the uncontroverted affidavit testimony of Eranell Mclntosh-Wilson, “the specific terms of Alabama’s HCB Waivers have been negotiated between the Alabama Medicaid Agency and the federal Center for Medicaid and Medicare Services (CMS) pursuant to Section 1915(c) of the Social Security Act.” (Doc. # 178 Ex. B ¶ 3.) This is in accord with the statutory requirements set out in 42 U.S.C. § 1396n(c). Once approved, the Waiver application becomes the controlling document. See 42 C.F.R. § 430.25(e)-(h); see also (Doc. # 178 Ex. B ¶ 28.) As a result, “Alabama’s HCB Waivers are limited in scope, both with respect to the array of reimbursable services and with respect to the number of eligible recipients.” (Doc. # 178 Ex. B ¶ 5.) With respect to the array of reimbursable services, the MR Waiver is limited to those listed in a catalogue submitted with the affidavit of Eranell Mclntosh-Wilson. The services available under the LAH Waiver program are the same, except that residential habilitation in a group home is not available under the LAH Waiver. According to Defendants’ expert, Cathy Anderson, “[a] Person must be fully enrolled in an HCBS Waiver program before he or she is entitled to receive services offered through the Waiver. Even then, the individual must have an assessed need for the service and the service must be determined necessary to assure his or her health or welfare.” (Doc. #178 Ex A ¶ 24.)

It is clear from the above that the statutory scheme that established the HCB Waiver programs envisioned programs of limited scope. See Susan J., 254 F.R.D. at 447-48, 455-56. In particular, the Waiver programs are limited in the variety of services offered through the Waiver program. Defendants’ Motions are due to be granted to the extent they seek dismissal of all or part of the claims of Plaintiffs who (1) seek services not provided for in the documents that govern the terms of the HCB Waiver programs, and/or (2) cannot prove that they are one of the eligible recipients. Plaintiffs Motion is due to be denied it seeks the provision of assistance to ineligible persons.

iii. The Waiting List

Finally, Defendants argue that the use of the waiting list is irrelevant to Plaintiffs’ claims. Plaintiffs challenge the administration of the waiting list as violative of the Medicaid Act’s reasonable promptness requirement. They argue that Defendants have transgressed the dictates of the statute by allowing the waiting list to grow and allowing unserved persons to languish on the list. Defendants counter that the waiting list is entirely permissible because the number of eligible recipients far outstrips the number of available Waiver slots. The Court agrees with Defendants that the waiting list is an entirely permissible way to manage the significant population of persons who are otherwise eligible for medical assistance under the Waivers, but for whom no slot is available. As discussed in the preceding sections, the Waiver statute provides eligible individuals in Alabama with an entitlement to medical assistance under the Waiver program and affords them the protections of the Medicaid Act with respect to such assistance. Susan J., at 454 (citing Chiles, 136 F.3d at 714). Only those persons who both (1) meet the preliminary eligibility requirements for participation in the Waiver program, as indicated by their presence on the waiting lists, and (2) are entitled to one of the few Waiver slots are entitled to the provision of medical assistance with' reasonable promptness. Id. The many persons who are on the waiting list, who evidently meet the preliminary eligibility requirements, but who are not entitled to one of the few available Waiver slots are not entitled to the provision of medical assistance with reasonable promptness. See id. Therefore, Plaintiffs who are not either actually in a Waiver slot or entitled to one have no legal basis to support their claim for the provision of assistance with reasonable promptness. Moreover, Alabama’s use of a waiting list is not unusual. According to the uncontroverted testimony of Defendants’ expert, it is “not unusual for states to have waiting lists for services.” (Doc. # 178 Ex. A ¶ 21.) Therefore, the Court is satisfied that the existence of the waiting list is immaterial. Defendants’ Motion is due to be granted to the extent Plaintiffs seek alterations to the administration of the waiting list and to the extent Plaintiffs claim an entitlement to the provision of medical assistance with reasonable promptness but are not either in a Waiver slot or entitled to one. Plaintiffs’ Motion is due to be denied to the extent it seeks a remedy for the existence of a waiting list or for the provision of assistance to persons who are on the waiting list but do not meet the other eligibility requirements.

iv. Conclusion

Defendants are partially right when they say that “Plaintiffs are asking this Court to rewrite the terms of the HCB Waiver agreements negotiated between the federal CMS and the Alabama Medicaid Agency.” (Doc. # 178 50.) This the Court can not and will not do. However, Defendants urge too much when they claim the terms of the Waiver documents doom Plaintiffs’ reasonable promptness claims. The terms of the Waiver documents seem to preclude one remedy Plaintiffs appear to seek: expanded capacity in the Waiver programs. Nevertheless, there is a group of persons who are entitled to the provision of medical assistance under the Waiver program with reasonable promptness — those who (1) meet the eligibility requirements for participation in the program, and (2) are entitled to one of the lawfully limited number of slots available in the Waiver program. Determining who among the Plaintiffs not currently in a Waiver slot is entitled to one of the slots would pose difficult problems of proof at trial, but this is a different problem entirely than wanting for a legally enforceable right altogether.

b. Financial Reimbursements and the Provision of Services

Defendants claim that the reasonable promptness claims of the individual plaintiffs lack sound legal basis because the documents that control the HCB Waiver programs require the state to provide financial reimbursement only, not services. They claim that if 42 U.S.C. § 1396a(a)(8) applies to HCB Waiver programs it only requires that the State provide prompt payment for services, not the prompt provision of services by private providers. They rely on Mandy R. v. Owens, 464 F.3d 1139, 1143-46 (10th Cir.2006), Westside Mothers v. Olszewski 454 F.3d 532, 540-41 (6th Cir.2006), and Bruggeman v. Blagojevich, 324 F.3d 906, 910 (7th Cir.2003). Plaintiffs counter that this is a strained reading of the statute and conflicts not only with the language in the statute, but also with the holdings of cases interpreting the statute. Plaintiffs rely primarily on two district court cases, Sobky v. Smoley, 855 F.Supp. 1123 (E.D.Cal.1994), and McMillan v. McCrimon, 807 F.Supp. 475 (C.D.Ill.1992).

i. Legal Framework

The United States Code provision that contains the reasonable promptness requirement, 42 U.S.C. § 1396a(a)(8), provides specifically that “all individuals wishing to make application for medical assistance under the plan shall have opportunity to do so, and that such assistance shall be furnished with reasonable promptness.” (emphasis added). Therefore, the scope of any claim for the provision of services with reasonable promptness is set by the definition of “medical assistance,” as that is all states are required to provide with reasonable promptness under the statute. The Tenth Circuit in Mandy R. explained the meaning of “medical assistance” as used in § 1396a(a)(8):

The Medicaid Act defines “medical assistance” as “payment of part or all of the cost of the [described] care and services.” 42 U.S.C. § 1396d(a). The statutory definition mentions payment for, but not provision of, services. In other words, “the statutory reference to ‘assistance’ appears to have reference to financial assistance rather than to actual medical services.” Bruggeman ex rel. Bruggeman v. Blagojevich, 324 F.3d 906, 910 (7th Cir.2003); see also Westside Mothers v. Olszewski, 454 F.3d 532, 540 (6th Cir.2006) (concluding that 42 U.S.C. §§ 1396a(a)(8) and (10) do not “require the State to provide medical services directly” but rather require only financial assistance). On its face, then, the Medicaid Act requires any state participating in Medicaid to pay promptly and evenhandedly for medical services when the state is presented with the bill.

464 F.3d at 1143. However, a footnote to this excerpted paragraph notes that, without addressing the issue, two other circuits, including the Eleventh, appear to have treated the statute as requiring the provision of actual services. Id. n. 2 (citing Doe v. Chiles, 136 F.3d 709, 714, 717 (11th Cir.1998)); see also Sabree v. Richman, 367 F.3d 180, 181 n. 1 (3d Cir.2004) (“There appears to be a disagreement among our sister courts of appeals as to whether, pursuant to Medicaid, a state must merely provide financial assistance to obtain covered services, or provide the services them selves.”)(citing Chiles, 136 F.3d at 709-714).

In Westside Mothers, the Sixth Circuit also addressed the meaning of “medical assistance