Citations
- 165 F. Supp. 3d 1048
Full opinion text
MEMORANDUM OPINION AND ORDER
MARTHA VÁZQUEZ, UNITED STATES DISTRICT JUDGE
THIS MATTER comes before the Court on the DOH Defendants’ Motion to Dismiss Plaintiffs’ Claims Under the Medicaid Act and Supporting Memorandum (“Motion to Dismiss Medicaid Act Claims”) [Doc. 215], the DOH Defendants’ Motion to Dismiss Plaintiffs’ Rehabilitation Act and Americans With Disabilities Act (“ADA”) Claims and Supporting Memorandum (“Motion to Dismiss Rehabilitation Act and ADA Claims”) [Doc. 216], the DOH Defendants’ Motion to Dismiss Plaintiffs’ Claims Under the Tort Claims Act (“NMTCA”) and Supporting Memorandum (“Motion to Dismiss NMTCA Claims”) [Doc. 217], and the DOH Defendants’ Motion and Memorandum In Support of Motion to Dismiss Plaintiffs’ Federal Constitutional Claims and Claims Asserted Under the New Mexico Developmental Disabilities Code on the Basis of the Statute of Limitations (“Motion to Dismiss Constitutional and Disabilities Code Claims”) [Doc. 292], The Court, having considered the motions, briefs, and relevant law, and being otherwise fully informed, finds that the Motion to Dismiss Medicaid Act Claims is granted in part and denied in part, the Motion to Dismiss Rehabilitation Act and ADA Claims is granted in part and denied in part, the Motion to Dismiss NMTCA Claims is granted in part and denied in part, and the Motion to Dismiss Constitutional and Disabilities Act Claims is denied.
BACKGROUND
Plaintiffs JL, EH, RH, DA, KC, and GS (“Plaintiffs”) assert various claims against the DOH Defendants, including, as relevant to the motions disposed of herein, claims pursuant to the Medicaid Act, the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990, and the New Mexico Tort Claims Act, as well as various constitutional claims pursuant to 42 U.S.C. Section 1983. Plaintiffs’ claims arise out of the DOH Defendants’ alleged unilateral decisions (1) temporarily to transfer Plaintiffs from the Los Lunas Hospital and Training School and the Fort Stanton Hospital and Training School (collectively, the “Training School”) — which at the time of the events giving rise to Plaintiffs’ claims were State of New Mexico institutions operated by the DOH that housed people with developmental disabilities — to various privately-run, third-party settings, including Eastern New Mexico Mental Retardation Services (“ENMRSH”), and (2) permanently to discharge Plaintiffs from the Training School and transfer Plaintiffs to ENMRSH and/or another third-party setting. The allegations in the complaint supporting Plaintiffs’ claims are set forth more fully in the Court’s Memorandum Opinion and Order dated September 30, 2015. [Doc. 375]. The Court incorporates those facts by reference instead of restating them herein.
STANDARD
Federal Rule of Civil Procedure 12(b)(6) authorizes a court to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed. R.Civ.P. 12(b)(6). “The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir.1994). The sufficiency of a complaint is a question of law, and when considering a rule 12(b)(6) motion, a court must accept as true all well-pleaded factual allegations in the complaint, view those allegations in the light most favorable to the plaintiff, and draw all reasonable inferences in the plaintiffs favor. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007); Smith v. U.S., 561 F.3d 1090, 1098 (10th Cir.2009) (citation omitted), cert. denied, 558 U.S. 1148, 130 S.Ct. 1142, 175 L.Ed.2d 973 (2010).
A complaint need not set forth detailed factual allegations, yet a “pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. Rather, to survive a motion to dismiss pursuant to Rule 12(b)(6), a plaintiffs complaint must contain sufficient facts which, if assumed to be true, state a claim for relief that is plausible on its face. See Twombly, 550 U.S. at 570, 127 S.Ct. 1955; Mink v. Knox, 613 F.3d 995, 1000 (10th Cir.2010). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). “Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complainant must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis omitted). The Tenth Circuit has explained,
“[Plausibility” in this context must refer to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs “have not nudged their claims across the line from conceivable to plausible.” The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.
Robbins v. Okla., 519 F.3d 1242, 1247 (10th Cir.2008) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955) (internal citations omitted).
DISCUSSION
This Memorandum Opinion and Order resolves four motions: the Motion to Dismiss Medicaid Act Claims, the Motion to Dismiss Rehabilitation Act and ADA Claims, the Motion to Dismiss NMTCA Claims, and the Motion to Dismiss Constitutional and Disabilities Code Claims.
1. The Motion to Dismiss Medicaid Act Claims [Doc. 215].
Plaintiffs allege that the DOH, the LLCP, and the Training School violated various provisions of the Medicaid Act as well as regulations promulgated pursuant to the Medicaid Act. [Doc. 102 ¶¶ 430-31]. The DOH Defendants argue in their Motion to Dismiss Medicaid Act Claims that Plaintiffs have failed to state a claim for relief because the Medicaid Act does not grant Plaintiffs a private right of action against state officials in their individual capacities or a private right of action against the state itself. [Doc. 215 at 3, 4].
A. The Court Denies as Moot the Motion to Dismiss Medicaid Act Claims Against the Individual DOH Defendants.
The DOH Defendants first move to dismiss Plaintiffs’ Medicaid Act claims against the Individual DOH Defendants on the ground that there is no private right of action against state officials in their individual capacities. [Doc. 215 at 3 (citing LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 640, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999)) ]. Plaintiffs, however, do not assert Medicaid Act claims against the Individual DOH Defendants. The complaint specifically alleges that Plaintiffs do not bring Medicaid Act claims against the Individual DOH Defendants and that Plaintiffs only assert their Medicaid Act claims against the DOH, the LLCP, and the Training School. [Doc. 235 at 3; Doc. 102 ¶ 427 (“Plaintiffs explicitly ... do not seek damages against the Individual DOH Defendants pursuant to the Medicaid Act”) ]. Moreover, Plaintiffs stipulate in their response to the Motion to Dismiss Medicaid Act Claims “that the Sixth Cause of Action for violations of the Medicaid Act do[es] not apply to any Individual DOH Defendants.” [Doc. 235 at 4]. Because the complaint does not assert Medicaid Act claims against the Individual DOH Defendants and because Plaintiffs have stipulated that they bring no such claims against the Individual DOH Defendants, the DOH Defendants’ request that the Court dismiss Plaintiffs’ Medicaid Act claims against the Individual DOH Defendants is moot. Accordingly, the Court denies as moot the DOH Defendants’ Motion to Dismiss Medical Act Claims to the extent it seeks dismissal of Medicaid Act claims against the Individual DOH Defendants.
B. The Court Denies in Part and Grants in Part the Motion to Dismiss Medicaid Act Claims Against the DOH, the LLCP, and the Training School.
The DOH Defendants next argue that Plaintiffs’ Medicaid Act claims against the DOH, the LLCP, and the Training School are subject to dismissal pursuant to Rule 12(b)(6) because the Medicaid Act does not grant Plaintiffs a private right of action against the state. [Doc. 215 at 4]. Plaintiffs ask the Court to deny the DOH Defendants’ request to dismiss Plaintiffs’ Medicaid Act claims against state, arguing that, while some sections of the Medicaid Act do not create a private right of action, “numerous subsections of the Medicaid Act do create a private right of action.” [Doc. 235 at 3, 4].
To determine whether Plaintiffs have stated a Medicaid Act claim against the DOH, the LLCP, and the Training School, the Court must assess whether the provisions of the Act allegedly violated confer a private right of action. See Gragert v. Lake, 541 Fed.Appx. 853, 855 (10th Cir.2013) (explaining that “§ 1983 is not available to challenge every Medicaid decision,” and that “its availability turns on whether, under the relevant provision of Medicaid law, ‘Congress intended to confer individual rights upon a class of beneficiaries’ ”) (quoting Hobbs ex rel. Hobbs v. Zenderman, 579 F.3d 1171, 1179 (10th Cir. 2009)). The Supreme Court has explained that “the typical remedy for state noncompliance with federally imposed conditions” in legislation that is enacted pursuant to the spending power, e.g., the Medicaid Act, “is not a private cause of action for noncompliance but rather action by the Federal Government to terminate funds to the State.” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 28, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981). Nonetheless, in some circumstances, legislation enacted pursuant to the spending power can create rights privately enforceable against state officers through Section 1983, see, e.g., Wright v. Roanoke Redevel. & Hous. Auth., 479 U.S. 418, 107 S.Ct. 766, 93 L.Ed.2d 781 (1987); Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990), and certain subsections of the Medicaid Act fall within these limited circumstances and therefore create private rights of action against the states.
The Supreme Court has established the framework for determining whether federal legislation creates a private right of action enforceable through 42 U.S.C. Section 1983. To seek redress through § 1983, the Supreme Court has held that a plaintiff must assert a violation of a federal right, not merely a violation of federal law. Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997). In Blessing v. Freestone, the Court set forth three criteria to determine whether a statutory provision gives rise to a federal right: Blessing, 520 U.S. at 340-41, 117 S.Ct. 1353 (citations omitted), quoted in Mandy R. v. Owens, 464 F.3d 1139, 1146-47 (10th Cir.2006), cert. denied, 549 U.S. 1305, 127 S.Ct. 1905, 167 L.Ed.2d 364 (2007). In Gonzaga Univ. v. Doe, 536 U.S. 273, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002), the Supreme Court tightened the first requirement, holding that an enforceable private right exists only if the statute contains nothing “short of an unambiguously conferred right” and not merely a vague benefit or interest. Id. at 283, 122 S.Ct. 2268. The Court held that no enforceable right exists “where a statute by its terms grants no private rights to any identifiable class.” Id. at 283-84, 122 S.Ct. 2268. The Court explained that a statute unambiguously demonstrates congressional intent to confer individual or personal rights by using “rights-creating language.” Gonzaga, 536 U.S. at 287, 122 S.Ct. 2268. Such language must clearly impart an “individual entitlement,” and have an “unmistakable focus on the benefited class.” Id. at 284, 122 S.Ct. 2268. “Once a plaintiff demonstrates that a statute creates a federal right, the right is presumptively enforceable under § 1983 unless Congress specifically foreclosed such a remedy.” Mandy R., 464 F.3d at 1147 (citing Gonzaga, 536 U.S. at 284, 122 S.Ct. 2268).
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.
Post-Gonzaga decisions reach mixed results on whether various provisions of the Medicaid Act create rights enforceable under Section 1983. Compare Sabree v. Richman, 367 F.3d 180, 192 (3rd Cir.2004) (holding that 42 U.S.C. Section 1396a(a)(8) creates a private right of action) and Pediatric Specialty Care, Inc. v. Ark. Dep’t of Human Servs., 364 F.3d 925, 930 (8th Cir.2004) (holding that providers have enforceable private right of action under 42 U.S.C. Section 1396a(a)(30)(A)) with Sanders v. Kan. Dep’t. of Soc. & Rehab. Servs., 317 F.Supp.2d 1233 (D.Kan.2004) (holding that 42 U.S.C. Section 1396a(a)(8) does not create a private right of action) and Long Term Care Pharmacy Alliance v. Ferguson, 362 F.3d 50, 58-59 (1st Cir.2004) (holding that providers do not have enforceable rights under 42 U.S.C. Section 1396a(a)(30)(A)).
Plaintiffs bring claims against the DOH, the LLCP, and the Training School for alleged violations of subsections 1396a(a)(8), 1396a(a)(3), 1396a(31), and 1396a(a)(44) of the Medicaid Act and for alleged violations of various regulations promulgated pursuant to the Medicaid Act. The Court evaluates the provisions of the Medicaid Act and its regulations upon which Plaintiffs rely in turn to determine whether they create a private right of action.
1. Subsections lS96a(a)(8) and 1896a(a)(3) Create a Private Right of Action.
The complaint alleges that the DOH, the LLCP, and the Training School violated the Medicaid Act by “[flailing to ensure that Plaintiffs received needed medical assistance with reasonable promptness, in violation of 42 U.S.C. § 1396a[ (a) ](8),” [Doc. 102 ¶ 430b], and by “[flailing to provide Plaintiffs with an opportunity for a fair hearing before the State Medicaid agency when placing them outside of the Training School into aftercare, and when discharging them from the Training School, in violation of 42 U.S.C. § 1396a[ (a) ](3).” [Doc. 102 ¶ 430a].
Subsection 1396a(a)(8) of the Medicaid Act provides that “[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.” 42 U.S.C. § 1396a(a)(8). Subsection 1396a(a)(3) provides that “[a] State plan for medical assistance must” “provide for granting an opportunity for a fair hearing before the State agency to any individual whose claim for medical assistance under the plan is denied or is not acted upon with reasonable promptness.” 42 U.S.C. § 1396a(a)(3). These statutory provisions are clear and unambiguous. They provide that all individuals must be permitted to apply for medical assistance; such assistance must be furnished with reasonable promptness to all eligible individuals; and the state must provide an opportunity for a fair hearing to any individual whose claim for medical assistance under the plan is denied or is not acted upon with reasonable promptness. Indisputably, these provisions create law that is binding on those states that choose to accept Medicaid funding.
Moreover, Subsections 1396a(a)(8) and (3) satisfy the Blessing test because (1) Plaintiffs are the intended beneficiaries; (2) the rights Plaintiffs seek to enforce are specific and enumerated, not “vague and amorphous;” and (3) the obligation imposed on the states is unambiguous and binding. The subsections also satisfy the Gonzaga test because Congress unambiguously conferred the rights asserted by using “rights-creating terms.” Gonzaga, 536 U.S. at 284, 122 S.Ct. 2268.
In Valdez v. New Mexico Human Servs. Dep’t, No. 05-451 MV/ACT (D.N.M. Mar. 14, 2006) (Doc. 104), this Court previously applied Gonzaga and determined that Congress, in enacting subsections 1396a(a)(3) and (a)(8), unambiguously conferred rights using “rights-creating terms.” The Valdez Court explained that, “[p]rior to Gonzaga, several cases held that section § 1396a(a)(8), known in the case law as the ‘reasonable promptness’ provision, created federal rights enforceable under § 1983.” Id., Doc. 104 at 9 (citing Westside Mothers v. Haveman, 289 F.3d 852, 864 (6th Cir. 2002); Doe v. Chiles, 136 F.3d 709, 719 (11th Cir.1998)). The Court indicated, however, that “[subsequent to Gonzaga, ... courts have split over whether the ‘reasonable promptness’ provision creates a private right of action. Compare id. (explaining that some courts continue to hold that the ‘reasonable promptness’ provision creates a private right of action) (citing Sabree, 367 F.3d at 192; Bryson v. Shumway, 308 F.3d 79, 88 (1st Cir.2002)), with id. (noting that “[o]ther courts have held that the provision does not create a private right of action”) (citing Sanders, 317 F.Supp.2d at 1250; M.A.C. v. Betit, 284 F.Supp.2d 1298, 1307 (D.Utah 2003)). The Valdez Court concluded that it was “persuaded by the rationale set forth in [decisions concluding] that § 1396a(a)(8) does create a private right of action,” and reasoned that subsection 1396a(a)(8) “contains the ‘rights-creating’ language described in Gonzaga.” Id. In support of this conclusion, the Court noted that 1396a(a)(8) “is ‘phrased in terms of the persons benefited,’ ” id. (quoting Gonzaga, 536 U.S. at 284, 122 S.Ct. 2268), it “in-eludes the term ‘shall’ — a term which the Gonzaga court emphasized is ‘the sort of explicit right — or duty-creating language’ necessary ‘to impute to Congress an intent to create a private right of action,”’ id. (quoting Gonzaga, 536 U.S. at 284 n. 3, 122 S.Ct. 2268), and it “also references ‘all eligible individuals’ as those to whom medical assistance must be provided,” id. Valdez then held that, “[biased on this language, [the] Plaintiff ha[d] an enforceable right of action under 42 U.S.C. § 1396a(a)(8),” id. at 9-10, and that, because the language of Section 1396a(a)(3) is “virtually indistinguishable” from that of subsection 1396a(a)(8),” the Plaintiff also had an enforceable right under subsection (3). Id.
The DOH Defendants argue that even if the Court in Valdez held that subsections 1396a(a)(8) and (3) create private rights of action, there is no controlling precedent that holds that a private right of action exists under the more rigid Gonzaga standard. [Doc. 250 at 3]. While no controlling precedent may exist, the Court nonetheless is persuaded that, for the same reasons stated in Valdez, subsections 1396a(a)(8) and (3) create privately enforceable rights. Subsection 1396a(a)(8) contains Gonzaga’s required “rights-creating” language because it is phrased in terms of the persons benefited as required by Gonzaga, it utilizes the term “shall” (which, as the Gonzaga Court noted, suggests “the sort of explicit right — or duty-creating language” necessary “to impute to Congress an intent to create a private right of action,” 536 U.S. at 284 n. 3, 122 S.Ct. 2268), and it grants medical assistance to “all eligible individuals.” For these reasons, the Court concludes that subsection 1396a(a)(8) contains the sort of rights-creating language contemplated by Gonzaga. The Court further concludes that because the language of Section 1396a(a)(3) is virtually the same, subsection (3) also contains Gonzaga’s rights-creating language.
The Court’s conclusion is supported by persuasive authority. In Valdez, the Court specifically relied upon post-Gonza-ga decisions from the First and the Third Circuits holding that subsection 1396a(a)(8) creates a private right of action. See Sabree, 367 F.3d at 192; Bryson, 308 F.3d at 88. Since the Court’s decision in Valdez, the Fourth and the Sixth Circuits have joined the First and the Third Circuits in holding that subsection 1396a(a)(8) creates a private right of action. See Doe v. Kidd, 419 Fed.Appx. 411 (4th Cir. Mar. 24, 2011); Westside Mothers v. Olszewski, 454 F.3d 532 (6th Cir.2006). Similarly, the Second and Sixth Circuits have held post-Gonzaga that subsection 1396a(a)(3) creates a private right of action, as have several district courts. See Shakhnes v. Berlin, 689 F.3d 244 (2d Cir.2012); Gean v. Hattaway, 330 F.3d 758 (6th Cir.2003); Fishman v. Daines, 743 F.Supp.2d 127 (E.D.N.Y.2010); McCartney v. Cansler, 608 F.Supp.2d 694 (E.D.N.C.2009), aff'd, 382 Fed.Appx. 334 (4th Cir.2010). These decisions, in conjunction with the express language of subsections 1396a(a)(8) and (3), compel the Court to conclude that Plaintiffs have enforceable rights of action under 42 U.S.C. § 1396a(a)(8) and (3).
In their memorandum in reply, Defendants advance the alternative argument that, even if subsections 1396a(3) and 1396a(8) create private rights of action, Plaintiffs have not stated a claim for relief under these subsections because the complaint does not allege that the DOH Defendants failed to provide Plaintiffs with “medical assistance” as that term is defined in the act. [Doc. 250 at 2, 4], Subsections 1396a(a)(3) and (a)(8) both require state plans for medical assistance to grant individuals applying for “medical assistance” or wishing to challenge a denial of “medical assistance” certain rights, 42 U.S.C. §§ 1396a(a)(3), (8), and Section 1396d(a) defines “medical assistance” as “payment of part or all of the cost of the [described] care and services.” 42 U.S.C. § 1396d(a); see also Mandy R., 464 F.3d at 1143. The DOH Defendants argue that the “statutory definition mentions payment for, but not provision of, services, so that the term ‘assistance’ refers to financial assistance rather than to actual medical services,” [Doc. 250 at 3 (citing Mandy R., 464 F.3d at 1143) ], and that “[t]he First Amended Complaint alleges no claim by any of the Plaintiffs for medical assistance that was denied or not acted upon,” but rather alleges that the violation of Section 1396(a)(3) occurred when the DOH Defendants denied Plaintiffs services by discharging them from the Training School and placing them at ENRMSH, [id. at 2 (citing Doc. 102 ¶ 430(a)); id. at 3 (quoting Mandy R., 464 F.3d at 1143) (explaining that, “ ‘[o]n its face, ... 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’”)]. The DOH Defendants reason that because the complaint does not allege that the DOH Defendants failed to pay for services or otherwise provide financial assistance, Plaintiffs have failed to state a claim for relief under subsections 1369a(8) or (3). [Id. at 3].
The Court declines to consider this argument because the DOH Defendants raise it for the first time in their reply. The sole argument the DOH Defendants raise in their opening memorandum is that the Medicaid Act’s provisions upon which Plaintiffs rely do not create a private right of action. Plaintiffs thus, in their opposition, respond only to the DOH Defendants’ contention that the subsections allegedly violated do not create a private right of action. The DOH Defendants therefore failed to place Plaintiffs on notice that they were moving for dismissal on the ground that Plaintiffs’ allegations do not fall within the Act’s definition of “medical assistance.” Because entertaining an argument that the DOH Defendants raised for the first time in their reply would prejudice Plaintiffs, the Court declines to consider the argument.
2. Subsection 1396a(31) Does Not Create a Private Right of Action.
The complaint alleges that the DOH, the LLCP, and the Training School violated the Medicaid Act by “[flailing to ensure that Plaintiffs received from the Training School a written plan of care in accordance with regulations of the Secretary, and a regular program of independent professional review (including medical evaluation) that periodically reviewed Plaintiffs’ need for services, in violation of 42 U.S.C. § 1396a(31).” [Doc. 102 ¶ 430c], In their opening memorandum, the DOH Defendants 'argue that subsection 1396a(a)(31) does not create a private right of action. In opposition to the motion, Plaintiffs disagree, arguing that “Subsection 1396a(31) was recently held to create a private right of action in Thrower v. Commonwealth], 873 F.Supp.2d 651 (W.D.Penn.2012).” [Doc. 235 at 7 (citing Martin v. Voinovich, 840 F.Supp. 1175 (S.D.Ohio 1993)) ].
Subsection 1396a(a)(31) provides that
[a] State plan for medical assistance must ... with respect to services in an intermediate care facility for the mentally retarded (where the State plan includes medical assistance for such services) provide, with respect to each patient receiving such services, for a written plan of care, prior to admission to or authorization of benefits in such facility, in accordance with regulations of the Secretary, and for a regular program of independent professional review (including medical evaluation) which shall periodically review his need for such services.
42 U.S.C. § 1396a(a)(31). The DOH Defendants argue that “[t]his language speaks to the practices and standards of the facility and, by its terms, does not appear even to require that the plan or program be provided to the patient, as the Plaintiffs claim.” [Doc. 250 at 4]. The DOH Defendants further argue that “[n]o New Mexico state or federal court has decided that subsection (31) provides a private right of action.” [Id.].
Although in Thrower v. Commonwealth, the Western District of Pennsylvania concluded “ ‘without difficulty’ that the provisions at issue in th[e] case create individually enforceable rights,” 873 F.Supp.2d at 656, this Court is not similarly persuaded. In holding that subsection 1396a(a)(31) creates a private right of enforcement, the Thrower court reasoned that “[f]irst, the patients/clients are clearly the intended beneficiaries of these provisions which declare their rights and provide detailed descriptions of what facilities must do to ensure those rights”; “[sjecond, the provisions are not vague or amorphous; to the contrary, they unequivocally define the rights of patients and the obligations of facilities”; and “[t]hird, these provisions unambiguously impose binding obligations on these state-run facilities, speaking clearly in terms of what the facilities ‘must’ do.” Id. The court therefore concluded that subsection (31) “unmistakably con-ferís] substantive treatment rights on patients in rights-creating terms.” Id.
While the Court agrees with the Thrower court’s third point — i.e., that the subsection’s provisions impose binding obligation on the facilities — the Court does not agree with its first and second points— i.e., that the patients/clients are clearly the intended beneficiaries of the provision and that the provision unequivocally defines the rights of the patients/clients. Thus, unlike the Thrower court, this Court declines to hold that subsection 1396a(a)(31) unmistakably confers rights on patients/clients using rights-creating language.
Subsection 1396a(a)(31) confers no rights on the patients/clients of the facilities and its language, therefore, does not satisfy the Blessing/Gonzaga standard. The Supreme Court in Gonzaga held that an enforceable private right exists only if the statute contains nothing short of “an unambiguously conferred right,” 536 U.S. at 283, 122 S.Ct. 2268, and that no enforceable right exists “where a statute by its terms grants no private rights to any identifiable class,” id. at 283-84, 122 S.Ct. 2268. The Court further opined that the statute must be phrased in terms of the persons benefited. Id. at 284, 122 S.Ct. 2268. A plain reading of the language of subsection (31) reveals that this subsection does not utilize language identifying facility clients as the beneficiaries of the obligations imposed by the subsection on facilities, and that subsection (31) does not confer any substantive rights on patients in rights-creating terms. Indeed, the subsection’s plain language does not grant any rights whatsoever — not even vague or amorphous rights — to clients of facilities. This Court therefore is not persuaded, as was the court in Thrower, that the intended beneficiaries of subsection (31) are the clients of the facilities, that subsection (31) unequivocally defines the rights — or indeed any rights — of clients,-or that it unmistakably confers substantive treatment rights on patients in rights-creating terms that impart a clear individual entitlement and have an unmistakable focus on the benefitted class. Accordingly, the Court holds that subsection (31) does not create a private right of action, and therefore that Plaintiffs cannot. sustain a claim against the state for violation of 42 U.S.C. § 1396a(a)(31). Thus, the Court grants the DOH Defendants’ motion to dismiss Plaintiffs’ claim arising under § 1396a(a)(31).
3. Subsection 1396a(a)(l¡,f) Does Not Create a Private Right of Action.
The complaint alleges that the DOH, the LLCP, and the Training School violated the Medicaid Act by “[flailing to ensure that Plaintiffs’ services were furnished under a plan established and periodically reviewed and evaluated by a physician or a nurse practitioner or clinical nurse specialist who is not an employee of the Training School but is working in collaboration with a physician, in violation of 42 U.S.C. § 1396a(44).” [Doc. 102 ¶ 430d], Subsection 1396a(a)(44) provides that
A State plan for medical assistance must ... (44) in each case for which payment for inpatient hospital services, services in an intermediate care facility for the mentally retarded, or inpatient mental hospital services is made under the State plan ... (A) a physician (or, in the case of skilled nursing facility services or intermediate care facility services, a physician, or a nurse practitioner or clinical nurse specialist who is not an employee of the facility but is working in collaboration with a physician) certifies at the time of admission, or, if later, the time the individual applies for medical assistance under the State plan ... that such services are or were required to be given on an inpatient basis because the individual needs or needed such services, and (B) such services were furnished under a plan established and periodically reviewed and evaluated by a physician, or, in the case of skilled nursing facility services or intermediate care facility services, a physician, or a nurse practitioner or clinical nurse specialist who is not an employee of the facility but is working in collaboration with a physician.
42 Ü.S.C. § 1396a(a)(44).
The DOH Defendants maintain that subsection (44) contains no “unambiguously conferred right” that must be “phrased in terms of the person benefitted,” as required by Gonzaga. Plaintiffs, in contrast, contend that, “[a]lthough Plaintiffs’ counsel did not locate a ease that specifically addresses subsection 1396a[ (a) ](44),” that “subsection shares many characteristics in common with subsection 1396a[ (a) ](31), which does create a private right of action,” and “[additionally, numerous courts have enforced similar Medicaid Act provisions regarding intermediate care facilities and ICF/MR facilities” [Doc. 235 at 8 (quoting Rolland v. Patrick, 483 F.Supp.2d 107 (D.Mass.2007); DM. v. Butler Cty. Bd. of Mental Retardation & Dev. Disabilities, No. 08-399, 2008 WL 4916306 (S.D.Ohio Nov. 13, 2008)) ].
The Court is not persuaded that the language in subsection (44) satisfies the Blessing/Gonzaga standard. To contain the “rights-creating language” required by Gonzaga, the statute must clearly impart an “unambiguously conferred right” and “individual entitlement” and have an “unmistakable focus” on an “identifiable” “benefited class.” 536 U.S. at 283-84, 122 S.Ct. 2268. Subsection (44) does not clearly impart an unambiguously conferred right or individual entitlement to any identifiable class of persons benefitted by the statute. Nowhere in subsection (44) does Congress grant those receiving medical assistance the right to obtain the required certification. Nor is it clear why those receiving medical assistance would benefit from receiving the certification. Thus, subsection (44) • does not have an “unmistakable focus” on an identifiable benefitted class of persons. Rather, subsection (44) appears only to require the certification as part of the facilities’ general record-keeping practices and standards. If the certification has a benefit, it is to the federal agency overseeing the state facilities and not to any class of persons receiving benefits under the statute. The Court therefore concludes that, because subsection (44) contains no rights-creating language, subsection (44) does not create a private right of action. Accordingly, the Court grants the DOH Defendants’ motion to dismiss Plaintiffs’ Medicaid Act claims premised upon a violation of subsection 1396a(a)(44).
4. The Court Denies the Motion to Dismiss Plaintiffs’ Claims for Violation of Regulations Promulgated Pursu- ■ ant to the Medicaid Act.
The complaint alleges that the DOH, the LLCP, and the Training School violated the Medicaid Act by (1) “[flailing to ensure that, at the time of Plaintiffs’ placement outside the Training School on aftercare and at the time of their discharge from the Training School, each Plaintiff received (i) a final summary of their ... status ...; and (ii) were provided a post-discharge plan of care to assist them to adjust to the new living environment, in violation of 42 CFR 483.440,” [Doc. 102 ¶ 430e]; (2) “[flailing to respect each Plaintiffs right to make choices about their lives, in violation of 42 CFR 483.15,” [Doc. 102 ¶ 430f]; (3) “[flailing to ensure that outside agencies that provided services to Plaintiffs while committed to the Training School, such as ENMRSH, had a written agreement with the Training School that required the outside agency to provide all necessary medical care and to meet all of the client’s needs, in violation of 42 CFR 483.410,” [Doc. 102 ¶ 430g]; (4) “[flailing to afford Plaintiffs all required client protections,” including (a) “allowing them to manage their financial affairs and teaching them to do so”; (b) “ensuring that when they performed work for the facility that they were compensated”; (c) “maintaining a system that assures a full and complete accounting of clients’ personal funds entrusted to the facility”; and (d) “communicating with clients, parents, guardians, advocates and friends,” [Doc. 102 ¶ 430h]; and (5) “failing] to comply with applicable regulations regarding discharge planning, 42 CFR 483.440, which required the Training School to provide Plaintiffs and their provider agency: a. A final summary of the client’s ... status, b. A post-discharge plan ..., c. Documentation that the discharge was for good cause, and d. Preparations for the transfer and discharge.” [Doc. 102 ¶ 431],
In their opening memorandum, the DOH Defendants argue that Plaintiffs “cannot maintain an action against the state under the Medicaid Act,” citing the Tenth Circuit’s decisions in Mandy R., 464 F.3d at 1148, and Hobbs, 579 F.3d at 1182 . [Doc. 215 at 4], Neither of these decisions stands for the proposition that a private right of enforcement against the state does not exist under the Medicaid Act. Rather, as the Court already has explained, certain provisions of the Medicaid Act can create rights privately enforceable against state officers through Section 1983 if they satisfy the Blessing/Gonzaga test. Moreover, neither of the decisions holds that the regulations upon which Plaintiffs rely do not contain a private right of enforcement. Furthermore, although Plaintiffs in their response memorandum specifically argue that “[m]any courts have enforced provisions of 42 C.F.R. Section 483, as well as other regulations arising under subsections of Medicaid Act provisions which apply to intermediate care facilities, including ICF/MR facilities such as the Training School,” [Doc. 235 at 9 (citing cases) ], the DOH Defendants’ reply contains no argument or case authority in support of their position that the regulations do not create a private right of action. Local Rule 7.1(a) provides that a movant must “state with particularity the grounds and the relief sought,” D.N.M.LR-Civ. 7.1(a), and Local Rule 7.3(a) requires movants to “cite authority in support of the legal positions advanced.” D.N.M.LR-Civ. 7.3(a). Because, in violation of this Court’s rules, the DOH Defendants’ memorandum contains no argument or case authority relevant to the question whether the regulations allegedly violated confer a private right of enforcement, the Court denies the DOH Defendants’ motion to dismiss Plaintiffs’ claims premised upon violation of the Medicaid Act’s regulations.
II. The Motion to Dismiss Rehabilitation Act and ADA Claim's [Doc. 216].
The DOH Defendants move to dismiss Plaintiffs’ ADA and Rehabilitation Act claims pursuant to Federal Rule of Civil Procedure 12(b)(6) on several grounds. First, the DOH Defendants argue that Plaintiffs cannot state an ADA or Rehabilitation Act claim against the Individual DOH Defendants because the proper defendant in an ADA or Rehabilitation Act suit is the entity receiving federal funds and not its employees. [Doc. 216 at 8; 5]. Second, the DOH Defendants argue that Plaintiffs cannot state an ADA claim against the state premised upon Plaintiffs’ discharges from the Training School and their transfers to ENMRSH or other third-party settings because these discharges and transfers occurred prior to the ADA’s enactment, {id. at 4], and that Plaintiffs cannot state an ADA claim premised upon conduct unrelated to their discharges from the Training School and transfers to third-party settings because this conduct did not occur while Plaintiffs were in the custody of the DOH Defendants, {id. at 4-5]. Third, the DOH Defendants argue that Plaintiffs cannot state a Rehabilitation Act claim against the state because Plaintiffs challenge the treatment and services they received while under the care of a private, third-party facility, ie., ENMRSH, and Plaintiffs cannot support a discrimination or failure to provide services claim against the DOH Defendants arising out of conduct that occurred while Plaintiffs were housed at a third-party facility, {id. at 4], and because Plaintiffs have failed to allege that the DOH Defendants either refused to provide a requested accommodation or discriminated against Plaintiffs by reason of their handicaps'.
A. The Court Denies as Moot the Motion to Dismiss Rehabilitation Act and ADA Claims Against the Individual DOH Defendants.
The DOH Defendants first move to dismiss Plaintiffs’ Rehabilitation Act and ADA claims against the Individual DOH Defendants on the ground that there is no private right of action against state officials in their individual capacities. [Doc. 216 at 3, 5]. The complaint, however, does not allege Rehabilitation Act or ADA claims against the Individual DOH Defendants but rather asserts these claims only against the DOH, the LLCP, and the Training School. [Doc. 102 ¶¶ 404-06, 408-11; Doc. 236 at 3]. Moreover, Plaintiffs specifically stipulate in their opposition to the motion to dismiss that they do not bring Rehabilitation Act and ADA claims against the Individual DOH Defendants. [Doc. 236 at 4]. Accordingly, because the complaint does not assert Rehabilitation Act or ADA claims against the Individual DOH Defendants and because Plaintiffs have stipulated that they bring no such claims against the Individual DOH Defendants, the DOH Defendants’ motion to dismiss Plaintiffs’ Rehabilitation Act and ADA claims is moot and the Court therefore denies as moot the motion to dismiss these claims.
B. The Court Grants the Motion to Dismiss ADA Claims Against the DOH, the LLCP, and the Training School.
The DOH Defendants move to dismiss Plaintiffs’ ADA claims on the grounds that (1) Plaintiffs cannot state an ADA claim against the state premised upon Plaintiffs’ discharges from the Training School and their transfers to ENMRSH because these discharges and transfers occurred prior to the ADA’s enactment, and (2) Plaintiffs cannot state an ADA claim premised upon conduct unrelated to their discharges from the Training School and transfers to third-party settings because this conduct did not occur while Plaintiffs were in the custody of the DOH Defendants.
1. Plaintiffs Have Not Stated an ADA Claim Because the Alleged Conduct Occurred Prior to the Act’s Effective Date.
Defendants move to dismiss Plaintiffs’ ADA claims to the extent the claims arise out of Plaintiffs’ discharges from the Training School and their pre- and post-discharge placements at ENMRSH, arguing that the alleged discharges and transfers occurred prior to 1981, which was more than eleven years before the ADA’s effective date, and that the conduct therefore is not actionable. [Doc. 216 at 4]. Plaintiffs, in contrast, object to the DOH Defendants’ characterization of their ADA claims as arising out of conduct that occurred prior to 1981 and instead contend that the complaint contains multiple allegations establishing that the DOH Defendants engaged in proscribed conduct after the ADA became effective. [Doc. 236 at 8].
In support of their ADA claims, Plaintiffs rely upon the complaint’s allegations that the DOH Defendants violated Title II of the ADA when they denied Plaintiffs the opportunity to participate in state programs and denied Plaintiffs services as effective as those the state provided to non-disabled persons, [Doc. 102 ¶ 408(a) (alleging that the DOH Defendants violated the ADA by “[djenying Plaintiffs the opportunity to participate in or benefit from the programs and services of state government”); id. ¶ 408(b) (alleging that the DOH Defendants violated the ADA by “[d]enying Plaintiffs aid, benefits and services that are as effective as those provided to non-disabled persons or persons with other disabilities who are able to effectively advocate for themselves”) ]. Plaintiffs also rely upon the complaint’s allegations that defendants discriminated against Plaintiffs in the operation of the Training School and in the provision of protective services in violation of Title II of the ADA. [Id. ¶ 408(e) (alleging that the DOH Defendants violated the ADA by “discriminating against Plaintiffs in the operation of the Training School, the community-based developmental disability system, and the State’s protective services due to Plaintiffs’ disabilities ... because DOH Defendants knew that, due to their developmental disabilities, Plaintiffs could not effectively object to their placement or to the exploitation and neglect therein,” and “den[ying] Plaintiffs the education, ha-bilitation, behavioral services, medical, dental and mental health care and other supports and services they needed because they knew that, due to their developmental disabilities, Plaintiffs could not effectively object”) ]. The Court holds that these allegations do not state an ADA claim because they are premised upon conduct that occurred prior to the ADA’s January 26, 1992, effective date.
More specifically, while Plaintiffs allege that the DOH Defendants violated the ADA by denying Plaintiffs the opportunity to participate in Training School programs and by denying Plaintiffs services as effective as those provided to other non-disabled persons or to persons with different disabilities, this alleged conduct occurred prior to 1981 — i.e., when the DOH Defendants discharged Plaintiffs from the Training School and/or transferred them to ENMRSH. Similarly, while the complaint alleges that the DOH Defendants engaged in the discriminatory acts of removing Plaintiffs from the Training School and placing them at ENMRSH, [id. ¶ 408(e) ], these discharges and transfers occurred prior to 1981. Because Plaintiffs’ discharges from the Training School and pre- or post-discharge transfers to ENMRSH occurred more than eleven years prior to the date on which the ADA became effective, Plaintiffs have not stated an ADA claim.
The Court is not persuaded to hold otherwise by Plaintiffs’ contention that, on the facts alleged, Defendants currently are violating the ADA because Plaintiffs are wards of the state. Plaintiffs argue that the complaint repeatedly alleges that Plaintiffs are, and have been since the time of their initial involuntary commitments to the Training School, in the legal custody of the state, [Doc. 236 at 4-6 (arguing that the DOH Defendants did not “legally and effectively discharge[ ]” Plaintiffs from the Training School and citing multiple paragraphs of the complaint alleging that Plaintiffs were never legally and/or judicially discharged from state custody and that Plaintiffs therefore remain in state custody to this day) ], and maintain that, on a motion to dismiss, the Court must accept the complaint’s allegations of continuous state custody as true, [id. at 6 (conceding that the DOH Defendants “may, and do,” dispute Plaintiffs’ allegations that they remain in state custody, but asserting that “that dispute is not properly the subject of the instant Motion to Dismiss, but rather requires the offering of evidence by the parties in support of their respective positions”) ]. Plaintiffs then extrapolate that, as a result of Plaintiffs’ status as wards of the state, the DOH Defendants presently are violating the ADA because the state has a current legal obligation to care for Plaintiffs and is depriving Plaintiffs of the state’s direct services.
While the Court accepts well-pleaded factual allegations as true on a motion to dismiss, Plaintiffs’ allegations of continuous state custody are legal conclusions, and the Court does not accept legal conclusions as true Southern Disposal, Inc., v. Texas Waste, 161 F.3d 1259, 1262 (10th Cir.1998) (explaining that a court “need not accept conclusory allegations without supporting factual averments” as true in deciding a Rule 12(b)(6) motion to dismiss). Thus, the Court rejects Plaintiffs’ contention that the complaint’s allegations of continuous state custody are sufficient to preserve their ADA claims premised upon the DOH Defendants’ actions of discharging Plaintiffs from the Training School and transferring them to ENMRSH.
For the foregoing reasons, the Court holds that Plaintiffs have failed to state a Title II ADA claim premised upon the DOH Defendants’ alleged decisions to discharge Plaintiffs from the Training School and transfer them to ENMRSH or another third-party setting. Plaintiffs’ ADA claims, to the extent they are premised upon Plaintiffs’ discharges and transfers, are not actionable because- this conduct occurred prior to the effective date of the ADA. Accordingly, the Court grants the DOH Defendants’ motion to dismiss Plaintiffs’ ADA claims arising out of Plaintiffs’ discharges from the Training School and transfers to third-party settings.
2. Plaintiffs Have Not Stated an Actionable ADA Claim Because the Alleged Conduct Does Not Satisfy All of the Elements of a Prima Facie Case.
The Court next considers whether Plaintiffs have stated a viable ADA claim premised upon conduct unrelated to Plaintiffs’ discharges from the Training School and transfers to third-party settings. Plaintiffs ask the Court to deny the DOH Defendants’ motion to dismiss their ADA claims, arguing that the complaint alleges that the DOH Defendants violated the ADA by engaging in conduct unrelated to Plaintiffs’ discharges from the Training School and transfers to ENMRSH. As explained herein, none of the allegations on which Plaintiffs rely is sufficient to state an ADA claim.
Plaintiffs first rely upon the complaint’s allegation that the DOH Defendants violated the ADA by failing to “make reasonable modifications in DOH policies and procedures when necessary to avoid discrimination against Plaintiffs on the basis of disability.” [Id., ¶ 408(g)]. To state a claim under Title II of the ADA, a plaintiff must allege that (1) he or she is a qualified individual with a disability, (2) who was excluded from participation in or denied the benefits of a public entity’s services, programs, or activities, and (3) such exclusion, denial of benefits, or discrimination was by reason of a disability. Robertson v. Las Animas Cty. Sheriff’s Dep’t, 500 F.3d 1185, 1193 (10th Cir.2007) (citing 42 U.S.C. § 12132) (additional citation omitted). Regarding the second element, a public entity excludes a disabled individual from participating in and denies a disabled person the benefits of its programs and services when the entity fails to provide meaningful access to its programs and services. See id. at 1195 (“The ADA requires more than physical access to public entities: it requires public entities to provide ‘meaningful access’ to their programs and services.”) (quoting Chaffin v. Kan. State Fair Bd., 348 F.3d 850, 857 (10th Cir.2003) (explaining that the ADA requires public entities to provide disabled individuals “meaningful access” to their programs and opining that mere access— i.e., physical presence at a public fair— that is not meaningful constitutes a denial of benefits to the fair)) (additional citation omitted). Meaningful access may require “reasonable accommodations” in the public entity’s program or benefit. Alexander v. Choate, 469 U.S. 287, 301, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985); see also Chaffin, 348 F.3d at 857. “[B]efore a public entity can be required under the ADA to provide an auxiliary aid necessary to afford an individual an equal opportunity to participate in the entity’s services, programs, or activities, the entity must have knowledge that the individual is disabled, either because that disability is obvious or because the individual (or someone else) has informed the entity of the disability.” Robertson, 500 F.3d at 1196; see also id. at 1197 (explaining that when “a disabled individual’s need for an accommodation is obvious, the individual’s failure to expressly “request” one is not fatal to the ADA claim”) (citation omitted).
Athough Plaintiffs allege that the DOH Defendants failed to make “reasonable modifications” to the DOH’s policies and procedures, this allegation is concluso-ry and unsupported by facts that, if true, allow the Court to draw the reasonable inference that the DOH Defendants excluded Plaintiffs from participation in or denied Plaintiffs the benefits of the DOH’s services. The complaint contains no factual averments that identify the specific modifications to policies and procedures that the DOH failed to make, that confirm the necessity of the modifications to avoid discrimination on the basis of disability, that establish the reasonableness of the modifications, or that indicate that the modifications either were requested or that, the need for the modifications was obvious. The Court therefore concludes that Plaintiffs have not stated a plausible Title II claim premised upon the DOH Defendants’ alleged failure to make reasonable modifications to their policies and procedures.
Plaintiffs next rely upon the complaint’s allegation that the third-party AgePlan breached its contract with Plaintiffs, that the DOH Defendants were aware of Age-Plan’s breach, and that the DOH Defendants “did not correct” AgePlan’s breach or “cure the effects” of the breach. [Doc. 102 ¶ 128]. The omissions Plaintiffs allege, however, are not sufficient as a matter of law to satisfy the elements of a Title II claim.
The third element of a Title II claim requires a plaintiff to allege facts establishing that the exclusion, denial of benefits, or discrimination was “by reason of a disability.” Robertson, 500 F.3d at 1193. The complaint, however, does not allege facts that allow the Court to draw the reasonable inference that the DOH Defendants failed to correct or cure Age-Plan’s breach by reason of Plaintiffs’ disabilities. The DOH Defendants correctly note that a failure to correct a breach of contract “does not equate to discrimination simply because the beneficiaries of the contract were disabled.” [Doc. 257 at 11]. Missing from the complaint are any allegations that, for example, the DOH Defendants failed to cure the effects of a third-party’s breach of contract with Plaintiffs while they did cure and/or correct the effects of a third-party’s breach of contract with non-disabled persons. Nor do Plaintiffs allege any other facts that allow the Court reasonably to infer that the DOH Defendants’ failure to cure the effects of AgePlan’s breach was motivated by discriminatory intent or by reason of Plaintiffs’ disabilities. Because Plaintiffs have failed plausibly to allege that the DOH Defendants acted by reason of Plaintiffs’ disabilities, the Court holds that Plaintiffs have failed to state a Title II claim premised upon the DOH Defendants’ alleged failure to cure the effects of AgePlan’s breach of contract.
The Court also holds that Plaintiffs have failed to state an ADA claim premised upon the DOH Defendants’ failure to correct the effects of AgePlan’s breach because Plaintiffs have not alleged plausible facts that satisfy the second element of a Title claim — ie., that the public entity excluded a qualified individual with a disability from the benefits of a “public serviee[ ], program[], or activity].” Robertson, 500 F.3d at 1193; see also 42 U.S.C. § 12132.
Courts have defined broadly what constitutes a public “service[ ], programf ], or activity]” for purposes of Title II of the ADA and have held that the phrase encompasses almost “ ‘anything a public entity does.’ ” Barden v. City of Sacramento, 292 F.3d 1073, 1076 (9th Cir.2002) (citation omitted), cert. denied, 539 U.S. 938, 123 S.Ct. 2599, 156 L.Ed.2d 623 (2003); see also Johnson v. City of Saline, 151 F.3d 564, 569 (6th Cir.1998) (finding that the phrase “programs, services, or activities” encompasses virtually everything that a public entity does”); Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 45 (2d Cir.1997) (reasoning that the phrase “programs, services, or activities” is “a catch-all phrase that prohibits all discrimination by a public entity, regardless of the context”), superseded on other grounds Zervos v. Verizon New York, Inc., 252 F.3d 163, 171 n. 7 (2d Cir.2001). Nonetheless, while the definition of a public “service[ ], program[ ], or activity],” is expansive, the phrase is not without limit, and the DOH Defendants’ alleged failure to cure the effects of AgePlan’s breach falls outside of that limit.
The “focus” of the inquiry into whether a particular public function constitutes a service, program, or activity within the meaning to Title II “is not so much on whether a particular public function can technically be characterized as a service, program, or activity but whether it is ‘a normal function of a governmental entity.’ ” Barden, 292 F.3d at 1076 (quoting Bay Area Addiction Research & Treatment, Inc. v. City of Antioch, 179 F.3d 725, 731 (9th Cir.1999)); see Innovative Health Sys., 117 F.3d at 44 (holding that the ADA encompasses zoning decisions because zoning is “a normal function of a governmental entity”); Barden, 292 F.3d at 1076 (explaining that “maintaining public sidewalks is a normal function of a city and ‘without a doubt something that the [City] does,’ ” and therefore holding that this activity falls within the scope of Title II) (quoting Hason v. Medical Bd. of Cal., 279 F.3d 1167, 1173 (9th Cin2002)). It is not a normal function of the government to correct or cure the effects of a third-party’s breach of a private contract to which the public entity is neither a party nor in privity with a party. Not surprisingly, Plaintiffs fail to advance any argument or cite any authority that stands for the proposition that the failure to cure the effects of a third-party’s breach of a private, third-party contract constitutes the denial of a public service, program, or activity within the meaning of the ADA, and this Court finds no such authority. The Court therefore concludes that, because it is not a normal government function for the state to cure the effects of a third-party contract between private parties with whom the state is not in privity, Plaintiffs have failed plausibly to allege that the DOH Defendants denied Plaintiffs a public service or benefit within the meaning of the ADA.
Plaintiffs last rely upon the complaint’s allegation that the DOH Defendants breached their 2010 settlement agreement with a group of plaintiffs in a 2007 lawsuit that obligated the DOH Defendants to afford former Training School residents (including Plaintiffs) with support and assistance as well as the complaint’s allegation that the DOH Defendants have “discriminated against [Training School] residents on the basis of their disabilities in their official review of whether former residents continued to be endangered, exploited and neglected.” [Doc. 102 ¶ 9]. The DOH Defendants’ alleged conduct, however, even if true, does not state an ADA claim because Plaintiffs have failed to allege facts from which the Court reasonably could infer that the defendants acted “by reason of’ Plaintiffs’ disabilities.
The complaint does not allege, for example, that the DOH Defendants breached their obligations under the 2010 settlement agreement to support disabled persons but that they honored their obligations in other settlement agreements involving non-disabled persons, or that the DOH Defendants failed to r.eview cases of individuals with disabilities but did review cases of individuals without disabilities. Nor does the complaint allege that the DOH Defendants treated Plaintiffs differently from some other class of disabled persons, such as individuals with more or less severe disabilities. The absence of such allegations is fatal to Plaintiffs’ Title II claim, and the Court therefore holds that Plaintiffs have failed to state an ADA claim premised upon the DOH Defendants’ alleged breach of the 2010 settlement agreement and their alleged discriminatory official review of Plaintiffs’ condition.
For the foregoing reasons, the Court concludes that Plaintiffs have failed to state a Title II ADA claim premised upon the DOH Defendants’ (1) alleged failure to modify the DOH’s policies and procedures, (2) alleged failure to correct or cure Age-Plan’s breach of contract, (3) alleged breach the 2010 settlement agreement, or (4) discriminatory official review of Plaintiffs’ status. The Court therefore grants the DOH Defendants’ motion to dismiss Plaintiffs’ ADA claims to the extent those claims are premised upon any of this alleged conduct.
C. The Court Denies in Part and Grants in Part the Motion to Dismiss Rehabilitation Act Claims Against the DOH, the LLCP, and the Training School.
The DOH Defendants move to dismiss Plaintiffs’ claims pursuant to Section 504 of the Rehabilitation Act against the DOH, the LLCP, and the Training School on two grounds. First, the DOH Defendants characterize Plaintiffs’ Section 504 claims as challenging the treatment and services Plaintiffs received while at ENMRSH and maintain that an alleged failure to provide services or discrimination while Plaintiffs were “housed” at a private, third-party facility cannot support a Rehabilitation Act claim against the state. {Doc. 216 at 4]. Second, the DOH Defendants assert th