Dunakin v. Quigley (99 F. Supp. 3d 1297, 2015)

ORDER ON MOTIONS TO DISMISS, FOR CLASS CERTIFICATION, AND FOR PARTIAL SUMMARY JUDGMENT

JAMES L. ROBART, District Judge.

I. INTRODUCTION

Plaintiff Adam Dunakin is a 34-year-old man with a developmental disability, who has lived in nursing facilities for more than eight years. (Compl. (Dkt. # 1) ¶ 5.) He alleges that Defendants Kevin W. Quigley, in his official capacity as Secretary of the Washington State Department of Social and Health Services (“DSHS”), and Dorothy F. Teeter, in her official capacity as Director of the Washington State Health Care Authority (“HCA”), have failed to provide him with screenings and evaluations, specialized services, and notice of or planning for eventual community placement as required pursuant to the Nursing Home Reform Act (“NHRA”), 42 U.S.C. § 1396r, and other laws. (See generally Compl.) He further alleges that these failures have resulted in his continued institutionalization and unnecessary isolation. (See id. ¶¶ 5, 12, 32.) He brings his complaint on behalf of himself and a putative class of other residents of privately-operated, Medicaid-certified nursing facilities in Washington State who are similarly situated. (Id. ¶¶ 14-20.)

Before the court are three motions. Mr. Dunakin brings (1) a motion for class certification (Mot. for Cert. (Dkt. # 16)) and (2) a motion for partial summary judgment (PSJ Mot. (Dkt. # 17)). Defendants bring a motion for judgment on the pleadings and partial summary judgment (Rule 12(c) Mot. (Dkt. # 24)). The court has reviewed the parties’ motions, all submissions filed in support of and opposition thereto, the balance of the record, and the applicable law. Being fully advised, the court GRANTS Mr. Dunakin’s motions for class certification and partial summary judgment and GRANTS in part and DENIES in part Defendants’ motion for dismissal on the pleadings and partial summary judgment. However, with respect to the one portion of Defendants’ motion to dismiss that the court grants, the court also grants Mr. Dunakin leave to amend his complaint.

II. BACKGROUND

A. Procedural History

Mr. Dunakin filed his complaint on April 16, 2014. (See generally Compl.) The complaint enumerates six claims for relief. (See generally id.) Mr. Dunakin’s first claim is based on Defendants’ alleged violations of certain provisions of the NHRA. (Id. ¶¶ 33-34.) His second and third claims are based on alleged violations of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a). (Compl. ¶¶ 36-42.) His fourth claim alleges violations of certain provisions of Title XIX of the Social Security Act, 42 U.S.C. §§ 1396a(a)(8), 1396a(a)(10)(B)(i), 1396n(c)(2)(B). (Compl. ¶¶ 43-44.) His fifth and sixth claims seek declaratory and injunctive relief and are derivative of his first four claims. (See id. ¶¶ 45-48.) Mr. Dunakin brings these claims on behalf of himself and a putative class of similarly situated residents of privately-operated Medicaid-certified nursing facilities in Washington State who have intellectual disabilities or related conditions. (IcL ¶¶ 14-20.) Defendants filed an answer to Mr. Dunakin’s complaint on May 8, 2014. (Answer (Dkt. # 8).)

Pursuant to the court’s scheduling order (Sched. Ord. (Dkt. # 9)), Mr. Dunakin filed a motion for class certification on October 17, 2014 (see generally Mot. for Cert.), as well as a motion for partial summary judgment on the issue of the proper standard for PASRR screenings' and evaluations (see generally PSJ Mot.). On November 10, 2014, Defendants filed a motion for dismissal on the pleadings of all of Mr. Dunakin’s claims and for partial summary judgment on two portions of his fourth claim under Title XIX of the Social Security Act. (See generally Rule 12(e) Mot.)

B. The PASRR Process

In 1987, Congress passed the NHRA to end the practice of inappropriately placing individuals with intellectual disabilities and related conditions in nursing facilities without providing services for their unique needs. See Rolland v. Romney, 318 F.3d 42, 46 (1st Cir.2003). As directed by the NHRA, the Center for Medicaid and Medicare Services (“CMS”) issued regulations to screen and assess individuals with intellectual disabilities and related conditions seeking admission to or residing in Medicaid-certified nursing facilities, including privately-operated nursing facilities. See Rolland v. Cellucci, 52 F.Supp.2d 231, 235 (D.Mass.1999); 42 C.F.R. § 483.100 et seq. This screening and assessment process is known as the Pre-Admission Screening and Resident Review (“PASRR”) process. 42 U.S.C. § 1396r(e)(7)(A). Under the PASRR process, Medicaid recipients with intellectual disabilities and related conditions who are in or seek admission to nursing facilities must be screened and evaluated to determine whether they could be served in a community setting and require specialized services related to training, therapies, or other means of accomplishing improved functioning. See Romney, 318 F.3d at 46.

The NHRA requires that states accepting federal Medicaid funds have a screening plan, specifically a PASRR plan, to ensure that decisions to place individuals in nursing facilities are made appropriately. 42 U.S.C. § 1396r(e)(7)(A)(i); 42 C.F.R. § 483.104. The federal regulations developed under the NHRA require two levels of PASRR evaluations. Level I of the PASRR process requires that the State “identify all individuals who are suspected of having [an intellectual disability]” and who are being referred to a nursing home. 42 C.F.R. § 483.128(a). PASRR “Level II is the function of evaluating and determining whether [nursing facility] services and specialized services are needed.” Id.

Within DSHS, the Developmental Disabilities Administration (“DDA”) has responsibility for Washington State’s PASRR program. See 42 C.F.R. § 483.100 (“The requirements of 42 C.F.R. §§ 483.100 through 483.138 governing the State’s responsibility for ... PASRR ... of individuals with ... intellectual disability are based on section 1919(e)(7) of the Act”); (Hehemann Decl. (Dkt. # 28) ¶¶ 3-4.) DDA also provides services to individuals with developmental disabilities under state law. See RCW ch. 71A. The PASRR process and the process for determining whether an individual is eligible for state services from the DDA are separate processes, although both programs are administered through DDA. (See Manion Decl. (Dkt. # 27) ¶ 4.) In Washington, HCA is the designated “single state agency” for Medicaid purposes, and provides oversight of certain DSHS and DDA programs and functions. See RCW 74.04.050.

On September 25, 2014, DSHS described the PASRR process as it relates to individuals with intellectual disabilities or related conditions in guidance it issued to all Washington nursing facilities as follows:

PASRR is a long-standing federal requirement (42 CFR § [sic] 483.100-138) to ensure that individuals with ... intellectual disabilities or related conditions (ID/RC) are not inappropriately placed in nursing facilities for long term care. PASRR requires that all applicants to a Medicaid-certified nursing facility:

1) Be evaluated for ... ID/RC;

2) Be offered the most appropriate setting for their needs (in the community, a nursing facility, or acute care settings); and

3) Receive the services they need in those settings.

The PASRR process begins with a Level I screening which is used to identify those who may meet the criteria to be evaluated for specialized services. The Level I screen must be performed pri- or to admission....

The nursing facility is responsible for ensuring that the [Level I] form is complete and accurate before admission. After admission, the NF [nursing facility] must retain the Level I form as part of the resident record. In the event the resident experiences a significant change in condition (either as a major improvement or decline in condition), or if an inaccuracy in the current Level I is discovered, the NF must complete a new PASRR Level I and make referrals to the appropriate entities if a[n] ... intellectual disability or related condition is identified or suspected ....

If ... ID/RC is identified or credibly suspected, a Level II evaluation is required to confirm that identification, determine whether the individual requires nursing facility level care, and determine whether specialized services are required. With some exceptions, the Level II evaluation must be completed pri- or to admission.

(Hamburger Deck (Dkt. # 21) Ex. D at 1 (bolding in original).) Defendants also state that if, upon review of a resident’s file, it becomes apparent that no Level I screening was performed, or it was done incorrectly, then the nursing facility or the PASRR assessor should complete a new PASRR Level I screening and refer the resident for a PASRR Level II assessment, if indicated. (PSJ Resp. at 4 (citing Hehemann Deck ¶ 6); see also Hehemann Deck ¶ 10.)

C. Recent PASRR Process Violations in Washington State

On November 13, 2013, CMS issued to DSHS and HCA a notice of multiple PASRR violations with respect to 27 residents, whom DSHS transferred in 2011 from Lakeland Village Intermediate Care Facility, a state-operated Residential Ha-bilitation Center (“RHC”) for individuals with developmental disabilities, to the Lakeland Village nursing facility. (Kas Deck (Dkt. # 20) ¶¶ 9-11, Ex. D.) Indeed, CMS found that DSHS had violated federal PASRR requirements thousands of times for just the 27 individuals involved in CMS’s investigation. (Id.) CMS found that the residents of Lakeland Village had been transferred to the nursing facility without screening, evaluation, or the provision of specialized services. (See id. Ex. D.)

Since November 2013, Defendants have operated under a plan of “remediation” with CMS related to Defendants’ state-operated Medicaid-certified nursing facilities. (See Hamburger Deck Ex. A at 52:2-16, 146-49.) The “remediation” plan, however, does not include privately-operated Medicaid-certified nursing facilities. (See id.; see also id. Ex. C.) In a 2014 supplemental budget request, DSHS requested and obtained additional funding to remediate its PASRR program to comply with federal Medicaid requirements at state-operated DDA nursing facilities. (See generally id. Ex. C.) However, DSHS did not request additional funding for PASRR at privately-operated nursing facilities, in which approximately 300 people with developmental disabilities presently reside. (Id. at 06009150 (“These immediate steps to address the issues with the state-run RHC nursing facilities do not address the issue of the approximately 300 people with a developmental disability who are currently in community nursing facilities.”).) Nevertheless, the state is responsible for conducting PASRR assessments upon admission or significant change in medical status with respect to these individuals. (Id.)

During the conduct of discovery in this lawsuit, Defendants’ testimony or documentary evidence otherwise provided support for the following assertions by Mr. Dunakin concerning Defendants’ compliance with federal PASRR requirements for residents of privately-operated nursing facilities:

• Defendants do not have systematic method for identifying and screening residents of privately-operated nursing facilities for intellectual disabilities and related conditions. (Praecipe to Hamburger Decl. Ex. E (Dkt. # 32) (attaching Rule 30(b)(6) Deposition of Terry Hehemann of DSHS) at 109:18— 110:2 (stating DSHS has “no clear means to absolutely identify who does and who [does not] need PASRR Level II” evaluations).)

• Defendants have not conducted complete PASRR evaluations for all of the individuals they have identified with intellectual disabilities or related conditions living in privately-operated nursing facilities, and although Defendants had a “goal” of completing these evaluations “by the end of 2014,” they have no concrete deadline for doing so because they “have no clear means to absolutely identify who does and who [does not] need PASRR Level II.” (See id.; see also Hamburger Decl. Ex. E (attaching Rule 30(b)(6) Deposition of Terry Heheman) at 99:18-22; id. Ex. A (attaching Rule 30(b)(6) Deposition of Don Clintsman of DSHS) at 140:1-17 (“We’re working on the community, getting those done, the 350 done.”).)

• Defendants presently have no formal tracking system to monitor whether specialized services identified as a result of a PASRR evaluation are actually provided, although DSHS is moving to an electronic system that will be able to provide such tracking in the future. (Hamburger Decl. Ex. E at 119:7-121:3.)

• Defendants have no quality assurance system in place to ensure the proper and timely provision of PASRR screening, evaluation, and recommended specialized services for residents of privately-operated nursing facilities. (Id. Ex. F (attaching Rule 30(b)(6) Deposition of Larita Paulsen of DSHS) at 77:21-81:13 (stating she is unaware of any such quality assurance activities by DSHS).)

D. Evidence Concerning Mr. Duna-kin’s Medical Condition and Disability

According to Dr. Deborah Hill, a licensed psychologist and a member of the team of clinicians who evaluated Mr. Du-nakin at Seattle Children’s Hospital in 1995 and 1997, Mr. Dunakin’s medical history indicates a diagnosis, prior to the age of 21, of muscular dystrophy, specifically fascio-scapulo-humeral muscular dystrophy (“FSHMD”) and/or myotonic dystrophy. (Hill Decl. (Dkt. # 19) ¶¶ 3-5.) Accordingly, Dr. Hill opines that Mr. Dunakin has “a ‘related condition’ to intellectual disability as defined in [the federal PASRR regulations].” (Id. ¶ 2; see also id. ¶ 3.)

Defendants, however, dispute this assessment. Dr. Christen A. Kishel, a clinical psychologist who works for DDA, testifies that she does “not see any document ... that has an original diagnosing physician” indicating a diagnosis of FSHMD. (Kishel Decl. (Dkt. # 26) ¶ 10 at 4-5.) Dr. Kishel has little doubt that “Mr. Dunakin does indeed suffer from a congenital neu-romuscular disorder as has been presumed by licensed physicians and by Dr. Hill .... ” (Id. ¶ 12.) However, Dr. Kishel believes that “without a specific diagnosis from an appropriate first-hand source ... it is impossible to conclude that Mr. Duna-kin’s neuromuscular condition ‘is known by reputable authorities to cause intellectual and adaptive skills deficits’ as required by [Washington State regulations].” (Id.) She opines that “[t]he working diagnosis listed in the children’s hospital discharge summary, ‘presumptive muscular dystrophy[,]’ is too broad to draw specific conclusions with regard to impact on intellectual and adaptive functioning.” (Id. ¶ 10 at 5.) “Ultimately, Dr. Kishel also disagrees with Dr. Hill’s conclusion that Mr. Dunakin has a “related condition” to intellectual disability as defined in [the federal PASRR regulations].” (Id. ¶ 16.)

E. Mr. Dunakin’s Eligibility for DDA State Services and PASRR Reviews

Despite Defendants’ present misgivings concerning Mr. Dunakin’s diagnosis and the causes of his intellectual disabilities, there is no dispute that they previously determined that he was eligible for state services as a result of limitations in his intellectual and adaptive abilities. In 1999; Washington’s Division of Developmental Disabilities (“DDD”), which is now known as DDA, determined that Mr. Dunakin was eligible for state services based on his diagnosis of muscular dystrophy and limitations in his cognitive and adaptive functioning as assessed in an evaluation called the ICAP. (Kishel Deck ¶ 4; Hollinger Deck (Dkt. # 18) ¶ 3; see also Hamburger Deck Ex. J; Hill Deck ¶ 10; Manion Deck (Dkt. # 27) ¶ 8.) Indeed, while Mr. Duna-kin lived at home with his mother, he received Medicaid Personal Care and employment-related services from DDA based on this 1999 assessment of eligibility. (Hollinger Deck ¶ 3; see Hamburger Deck Ex. I (attaching Rule 30(b)(6) deposition of DSHS employee Leslie Terpstra) at 43:7-44:1, 45:11-19, 46:12-47:9; Ex. J.)

Mr. Dunakin lived at home with his mother until he suffered a spinal injury in 2005. (Hollinger. Deck ¶ 2.) When he was discharged from the hospital in May 2006, he was sent to a Medicaid-certified privately-operated nursing facility. (Id.) From 2007, to the present, he has been a resident of Everett Care and Rehabilitation Center, which is such a facility. (Id.)

Individuals who are residents of nursing facilities may also be clients of DDA. (PSJ Resp. at 6.) However, because the nursing facility is generally in charge of residents’ care, nursing facility residents generally do not receive DDA paid services and accordingly are placed in DDA’s “no paid services queue.” (See Teed Decl. (Dkt. # 29) Ex. B (attaching Rule 30(b)(6) Hehe-mann Deposition) at 60:3-25; Hamburger Decl. Ex. I at 44:2-22.) When Mr. Duna-kin entered a nursing facility in 2006, he was placed on DDA’s “no paid services queue” because he was no longer receiving paid DDA services. (See Hamburger Decl. Ex. I at 44:2-22.) Nevertheless, Mr. Dunakin continued to be enrolled with DDA and was considered to be a client of DDA for nearly the entire eight years that he has lived in nursing facilities, until June 1, 2014 — after the start of this lawsuit. (Hollinger Decl. ¶ 3.)

Mr. Dunakin received a PASRR Level I screen related to his initial admission to a nursing facility on May 31, 2006. (Hamburger Decl. Ex. G.) His 2006 PASRR Level I form is undated, but appears on its face to have been sent via facsimile to DSHS on July 20, 2006. (Id.) Mr. Duna-kin’s PASRR Level I screen indicates that he has documented evidence of a developmental disability and that he has a history of a developmental disability with onset before the age of 22. (Id.) Significantly, Mr. Dunakin’s 2006 PASRR Level I screen expressly states that a “Level II Evaluation is required.” (Id.) DSHS, however, did not have a copy of Mr. Dunakin’s 2006 Level I PASRR screen in its files, and Mr. Dunakin never received a Level II evaluation at that time. (See id. Ex. H at 28-29, 40 (attaching Rule 30(b)(6) Deposition of Scott Watling of DSHS).)

Mr. Dunakin received a second PASRR Level I screen in May 2008, a full year after he was transferred from his initial nursing facility to the Everett Rehabilitation and Care Center. (Id. Ex. M.) Mr. Dunakin’s 2008 PASRR Level I screen directly contradicts his 2006 PASRR Level I screen. (Compare id. Ex. G with id. Ex. M.) Mr. Dunakin’s 2008 PASRR Level I screen states that he does not have “documented evidence of a diagnosis of a developmental disability” and he has no “history of a developmental disability” in his past with onset before age 22. (Id. Ex. M.) This statement would also appear to be contrary to DDD’s 1999 determination that Mr. Dunakin was eligible for state services for his developmental disabilities based on his diagnosis of muscular dystrophy and limitations in his cognitive and adaptive functioning. (See Hamburger Decl. Ex. J.) Further, his 2008 PASRR Level I screen indicates that his condition is so severe that he is unable to participate in specialized services. (Id.) DDA did not have a copy of this PASRR Level I screen in its files and only discovered it in Mr. Duna-kin’s file at his nursing facility after this lawsuit was filed. (Id. Ex. H at 40-41.)

In 2014, DDA was aware that Mr. Duna-kin was one of its clients who had not received a Level II PASRR evaluation because he appeared on a list or report of DDA clients who were living in nursing facilities. (Hamburger Decl. Ex. H (Wa-tling Dep.) at 64:9-65:7.) On April 28, 2014, after the present lawsuit was filed, DDA sent Mr. Scott Watling, a regional DSHS PASRR coordinator, to meet with Mr. Dunakin and conduct a PASRR Level II evaluation. (Id. at 12:10, 15:14-18:6; Teed Decl. Ex. F at PROD-000013 (“Scott Watling went out to meet with Adam Du-nakin to complete a PASRR 2.”).) At approximately the same time, DDA also directed Ms. Leslie Terpstra, a DDA eligibility review worker, to conduct a review of Mr. Dunakin’s eligibility for DDA state services. (Id. Ex. I (attaching Rule 30(b)(6) Deposition of Leslie Terpstra of DSHS) at 12-13,16-17.)

Although DDA notified Mr. Dunakin’s mother of the eligibility review for DDA services (Hollinger Decl. ¶ 4), DDA did not notify Mr. Dunakin’s attorneys of either the eligibility review or DDA’s contact with Mr. Dunakin for purposes of conducting a PASRR Level II evaluation (Hamburger Decl. ¶ 11; Kas Decl. (Dkt. # 20) ¶ 12). DDA failed to contact Mr. Duna-kin’s attorneys despite the fact that DDA was aware of the present lawsuit involving his PASRR eligibility and also aware that Mr. Dunakin was represented by counsel. (Hamburger Decl. ¶ 11; Kas Decl. ¶ 12.) DDA also did not inform Mr. Dunakin’s mother that it had not notified Mr. Duna-kin’s attorneys concerning its contact with him, and it did not occur to Mr. Dunakin’s mother that DDA would not so inform her son’s attorneys. (Hollinger Deck ¶ 6.)

When Mr. Watling reviewed Mr. Duna-kin’s file at the nursing facility, he discovered the May 2008 PASRR Level I screen. (Hamburger Decl. Ex. H at 31:13-21; Ex. M.) Once Mr. Watling discovered this, he halted his evaluation of Mr. Dunakin and did not perform a Level II PASRR evaluation. (Id. Ex. H at 57:5-10; 61:22-25; Teed Decl. Ex. D at 31:13-32:3.) Instead, Mr. Watling decided to wait for an “eligibility review” by Ms. Terpstra to determine if Mr. Dunakin met DDA’s eligibility criteria for state services. (Hamburger Decl. Ex. H at 57:5-10, 60:21-61:25.) Mr. Watling communicated his impression that Mr. Dunakin did not have a developmental disability that would meet DDA’s criteria to Ms. Terpstra. (Id. Ex. I at 19:17-22.)

Ms. Terpstra conducted Mr. Dunakin’s DDA eligibility review by applying the same process and eligibility criteria that are applied to all individuals whose DDA eligibility is being assessed or reviewed. (Id. Ex. I at 91:21-93:12.) Ms. Terpstra conducted a review of Mr. Dunakin’s file and spoke with Mr. Watling about Mr. Dunakin’s nursing home records. (Id. at 18-22.) Based solely on a full-scale intelligence quotient (“FSIQ”) score of 83 from 1997 that was in Mr. Dunakin’s files, Ms. Terpstra determined that Mr. Dunakin was not eligible for DDA services. (Id. at 70:3-10.)

Although Ms. Terpstra concluded that Mr. Dunakin did not qualify for DDA services, she did not separately evaluate whether he was eligible for federal PASRR services. (Id. at 85:21-25.) Based on the determination that Mr. Du-nakin’s 1998 FSIQ score exceeded the intelligence quotient cut-off for DDA eligibility, everyone at DDA assumed that Mr. Dunakin was also ineligible for services under PASRR. (See id. Ex. E at 153:11-154:14 (“[W]e [DDA] believe-that our state law matches federal law other than the one age portion with related condition. So if our intake eligibility people decided [Mr. Dunakin] was not eligible, we believe that would meet the federal definition as well.”); Ex. H at 87:12-88:3; see also id Ex. H at 83:6-19; Teed Decl. Ex. F at PROD_000013 (“Adam was reviewed by our Intake and Eligibility Unit and found ineligible for DDA services. At this point, we have no services to offer and Adam does not qualify for a PASRR 2 review.”).)

F. Washington State’s Recent PASRR Enhancements

In a declaration dated November 10, 2014, Ms. Terry Heheman, DDA’s PASRR Program Manager, testifies that as a result of CMS’s investigation into DDA’s PASRR practices at Lakeland Village, DDA began working closely with CMS in approximately January 2014, and has made changes to DDA’s PASRR process statewide. (See Hehemann Decl. 115.) Ms. Hehemann testifies that DDA began expanding its enhanced PASRR process to privately-operated Medicaid-certified nursing facilities in approximately April 2014, with a target for completing that process by November 30, 2014. (Id.) She further testifies in her declaration that over 270 individuals in privately-operated Medicaid-certified nursing facilities have been reassessed for PASRR purposes since April 2014, representing ninety percent (90%) of those who DDA initially contemplated might need review. (Id. ¶ 6.) Ms. Hehe-mann testifies that this means that a DDA worker has reviewed a nursing facility resident’s medical records for completion of a PASRR Level I screening form, completed this step if necessary, and completed a PASRR Level II evaluation where required pursuant to a PASRR Level I screening form. (Id.)

In their November 10, 2014, responsive memorandum, Defendants admit, consistent with Mr. Dunakin’s position, that developmental disability eligibility determinations under state law and PASRR determinations under federal law are subject to different standards. (See PSJ Resp. at 1.) Although Defendants admit that “[flor a brief period of time, the state eligibility definition was being used to implement PASRR,” they now contend that they no longer apply the same standard to the two determinations. (Id. at 7 (citing Hehemann Decl. ¶8).) Indeed, in her November 10, 2014, declaration, Ms. Hehemann testifies as follows:

The State has consistently trained and used the federal age requirements to implement PASRR. The State PASRR program recognizes there is a difference between the federal definition of intellectual disability used for PASRR and state eligibility requirements for purposes of DDA services or benefits. Then, for a brief period of time, the state eligibility definition, with the exception of age of onset, was being used to implement PASRR, but that has since changed so that only the federal definition is being used. Using the federal standard is reinforced through constant program improvements, including the forms that are currently being utilized and training to DDA staff and community members.

(Hehemann Decl. ¶ 8 (italics added).)

Despite Ms. Hehemann’s reassurance “that only the federal definition is being used” presently to determine PASRR eligibility for those with intellectual disabilities or related conditions, the revised PASRR Level II form she attaches to her declaration indicates otherwise. (See id. Ex. B at 3.) The PASRR Level II form that DDA recently re-designed to “enhance and refine the implementation of PASRR” continues to instruct DDA personnel to make determinations of “intellectual disability” or “related condition” using the State’s criteria found in the Washington Administrative Code. (Id.) Specifically, the form for PASRR Level II evaluations states:

Note: the determination of intellectual disability for PASRR purposes uses the state criteria under WAC 388-823-0200 through 230. The determination of “related condition”, [sic] uses the state criteria for cerebral palsy, epilepsy, autism, another neurological condition or other condition similar to intellectual disability in WAC 388-823-0300 through 091.0, with the exception that the age of origination of the condition is under 22 (not under 18).

(Id.) This form is dated July 14, 2014— more than four months after Defendants began expanding their enhanced PASRR process to privately-operated Medicaid-certified nursing facilities. (Id. ¶5; id. Ex. B.)

In addition to the foregoing, Mr. Duna-kin points to additional evidence indicating that, despite Ms. Hehemann’s assurances to the contrary, Defendants continued to utilize the state DDA eligibility requirements for PASRR screening and evaluations long after they began to apply their “enhanced PASRR process” to residents in privately-operated Medicaid-certified nursing facilities. For example, according to Ms. Hehemann’s September 15, 2014, Rule 30(b)(6) deposition testimony, DDA was still utilizing, as of that date, the state standard for its PASRR reassessments that Defendants now acknowledge was incorrect:

Q: So do you believe this definition of intellectual disability came from the PTAC website?

A: No. It’s what we developed using our WAC and federal rule. And we believe that our WAC mirrors what the federal rule says is an intellectual disability. The only place we differ is in the related condition piece because, the federal rule, it says if the onset is before age [22] and our state rule says before age 18.

So there is that segment of the population or people in that age group whose condition originated after 18, before [22], Those people don’t meet our state definition. But we would still do PASRR Level I with them because we’re required by federal rule because they have that difference in the rule.

(See Hamburger Decl. Ex. E at 82:16-83:1, 88:24; see also id. at 140:10-15 (“So then we explain that the federal and the state definitions are the same except for that age period for related condition, that ours is they have to have — the condition needs to have started before they were 18 and the federal definition says before they were 22.”); id. at 154:5-9 (“[W]e believe that our state law matches federal law other than the one age portion with related condition. So if our intake eligibility people decided [Mr. Dunakin] was not eligible, we believe that would meet the federal definition as well.”).) Thus, as of at least September 15, 2014, DDA was still operating on the understanding that the only difference between DDA’s eligibility standard for state services and the federal PASRR standard was the age of onset. Yet, as of November 10, 2014, Defendants acknowledge that utilizing the state standard for PASRR evaluations was error. (See PSJ Resp. at 1, 7.)

Further, like Ms. Hehemann, Mr. Wa-tting, the regional DSHS PASRR coordinator who was sent to evaluate Mr. Duna-kin’s PASRR eligibility on April 28, 2014, also understood that the only difference between the federal and state definitions was the age of onset. During his September 12, 2014, Rule 30(b)(6) deposition, Mr. Watting engaged in the following colloquy:

Q: ... Is there any formal assessment that you’re aware of for determining whether someone is eligible under the federal definition who’s not eligible under the state definition?

* :[: $ ‡ ‡ ‡

A: Under my awareness, the federal definition is different in age of onset, that the state definition goes to the onset age of 18 and the-federal definition goes to 21. So with supportive eligibility, in terms of determining whether this would have been an issue that would qualify for developmental disabilities, then the next question is age of onset. And that’s what makes the determination.

Q: ... Are there any other factors that would make a determination?

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A: Not under my understanding.

(Hamburger Decl. Ex. H at 87:12-88:3.)

Indeed, the form instructions to DDA staff concerning the federal PASRR standards (that Ms. Hehemann attaches to her declaration to demonstrate that DDA no longer utilizes the state eligibility standard for PASRR purposes) is dated October 31, 2014 — long after DDA began expanding its enhanced PASRR process to privately-operated Medicaid-certified nursing facilities in approximately April 2014, and only one month prior to DDA’s target completion date for that upgrade. (Hehemann Decl. ¶ 5, Ex. C.) Thus, undisputed evidence indicates that for the majority of the time that DDA was expanding its revised PASRR process to privately-operated nursing facilities (from approximately April 2014 to DDA’s target completion date of November 30, 2014), DDA was still applying a standard to its PASRR reassessments that it now acknowledges was in error.

The court now considers the parties’ presently pending motions.

III. ANALYSIS

A. Defendants’ Rule 12(c) Motion

The court considers Defendants’ Federal Rule of Civil Procedure 12(c) motion for dismissal on the pleadings first because if the court were to conclude that dismissal is appropriate, there would be no need for the court to consider any of the remaining motions. In this instance, however, the court determines that dismissal is appropriate only with respect to one part of Mr. Dunakin’s claim under Title XIX of the Social Security Act. Although the court grants Defendants’ motion to dismiss with respect to a portion of that claim, the court also grants Mr. Dunakin leave to amend his complaint.

1. Standards for Review of Defendants’ Rule 12(c) Motion

Under Federal Rule of Civil Procedure 12(c), a party may move for judgment on the pleadings after the pleadings are closed. Judgment on the pleadings “is properly granted when, taking all the allegations in the pleadings as true, a party is entitled to judgment as a matter of law.” Lyon v. Chase Bank USA, N.A., 656 F.3d 877, 883 (9th Cir.2011). The same standard governs a Rule 12(c) motion for dismissal as governs a Rule 12(b)(6) motion. Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1192 (9th Cir.1989). Specifically, to avoid dismissal, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its- face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Dismissal for failure to state a claim “is proper if there is a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir.2011). In ruling on a motion to dismiss, a court may consider the pleadings, documents attached to the pleadings, and documents incorporated by reference in the pleadings. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir.2003) (citing Van Buskirk v. CNN, 284 F.3d 977, 980 (9th Cir.2002)). The court has considered only these materials in ruling on Defendants’ Rule 12(c) motion for dismissal on the pleadings.

2. Claim One — Alleged Violations of PASRR Guidelines under the NHRA

Mr. Dunakin brings his claim for violations of the NHRA and its accompanying federal PASRR regulations under 42 U.S.C. § 1983. ' Defendants argue that this claim must be dismissed because a violation of PASRR regulations is not a cognizable claim under 42 U.S.C. § 1983. (Rule 12(c) Mot. at 8-14.) For the reasons stated below, the court disagrees.

Section 1983 imposes liability on anyone who, under color of state law, deprives a person “of any rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983; see also Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997). “[W]hether Congress intended to create a federal right” is the touchstone for determining whether a statutory violation may be enforced through 42 U.S.C. § 1983. Gonzaga Univ. v. Doe, 536 U.S. 273, 283, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002) (italics in original). In Blessing, the Supreme Court identified three issues to consider when deciding whether a particular statutory provision gives rise to a federal right: (1) whether Congress intended for the provision in question to benefit the plaintiff; (2) whether the plaintiff has demonstrated that the right protected by the statute is not so vague and amorphous that its enforcement would strain judicial competence; and (3) whether the statute unambiguously imposes a binding obligation on the States. 520 U.S. at 340-41, 117 S.Ct. 1353. The court must analyze these issues with reference to the specific right at issue and not to the statute as a whole. See id. at 342, 117 S.Ct. 1353.

In Gonzaga, the Supreme Court clarified the first prong of the Blessing test by rejecting the notion that a plaintiff could enforce a statute “so long as the plaintiff [fell] within the general zone of interest that the statute [was] intended to protect.” 536 U.S. at 283, 122 S.Ct. 2268. Instead, the Gonzaga court insisted that “it is rights, not the broader or vaguer ‘benefits’ or ‘interests,’ that may be enforced under the authority of [42 U.S.C. § 1983].” Id. (italics in original). To create a privately enforceable right, a statute must be “phrased in terms of the person benefited,” rather than “focus on the person regulated.” Id. at 284, 287, 122 S.Ct. 2268. However, once a plaintiff “demonstrates that a statute confers an individual right, the right is presumptively enforceable by § 1983.” Id. at 284, 122 S.Ct. 2268.

Defendants assert that the statutory provision of the NHRA that contains the PASRR guidelines, specifically 42 U.S.C. § 1396r(e)(7), fails the first Blessing factor as clarified by the Supreme Court in Gon-zaga. (Rule 12(c) Mot. at 8-14.) Defendants do not challenge the remaining two Blessing factors. (Rule 12(c) Reply (Dkt. # 42) at 4 (“It is only the first prong of ... [the Blessing ] test, whether Congress intended to create enforceable rights, that is at issue in this case.”).) Thus, the court’s analysis is limited to the first factor.

In Joseph S. v. Hogan, 561 F.Supp.2d 280 (E.D.N.Y.2008), advocacy groups and mentally disabled individuals brought an action alleging that the state’s mental health system had the effect of warehousing individuals with mental illness in highly restrictive nursing homes, in violation of the NHRA and the PASRR provisions found in 42 U.S.C. § 1396r(e)(7). The Joseph S. court considered the same issue presented here: whether the PASRR provisions of the NHRA confer individual rights upon the plaintiffs and meet the first Blessing prong in light of the refinements to that prong articulated by the Supreme. Court in Gonzaga. Joseph S., 561 F.Supp.2d at 300. The court concluded that the PASRR provisions do confer such individual rights. Id. “Unlike the statutes in Gonzaga and Blessing, §§ 1396r(e)(7)(A) and (B) are directly concerned with ‘whether the needs of any particular person have been satisfied.’ ” Joseph S., 561 F.Supp.2d at 300 (citing Blessing, 520 U.S. at 343, 117 S.Ct. 1353, as quoted in Gonzaga, 536 U.S. at 288, 122 S.Ct. 2268). The court finds the analysis of the Joseph S. court to be comprehensive in its consideration of the first Blessing factor as refined by Gonzaga and to be persuasive as well as more fully discussed below.

Rights-creating language “confer[s] a right directly on a class of persons that include[s] the plaintiff in the case” rather than “for the benefit of the public at large.” Cannon v. Univ. of Chicago, 441 U.S. 677, 690 n. 13, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), cited with approval in Gonzaga, 536 U.S. at 284 n. 3, 122 S.Ct. 2268. The provisions in the NHRA requiring a preadmission screening program include specific language referring to the persons benefitted: “[T]he state must have in effect a preadmission screening program, for making determinations ... described in subsection (b)(3)(F) of this section for ... mentally retarded individuals ... who are admitted to nursing facilities ....” 42 U.-S.C. § 1396r(e)(7)(A)(i). Subsection 1396r(b)(3)(F)(ii) of Title 42 states, in turn, that the State must determine “prior to admission that, because of the physical and mental condition of the individual, the individual requires the level of services provided by the nursing facility, and, if the individual requires such level services, whether the individual requires specialized services for mental retardation.” 42 U.S.C. § 1396r(b)(3)(F)(ii). The language in the provision requiring resident reviews also uses language that is even more clearly “rights-creating”:

[I]n the case of each resident of a nursing facility who is mentally retarded, the State ... must review and determine ... whether or not the resident, because of the resident’s physical and mental condition, requires the level of services provided by a nursing facility or requires the level of services of an intermediate case facility ... and whether or not the resident requires specialized services for mental retardation.

42 U.S.C. §§ 1396r(e)(7)(B)(ii)(D, (II). Although these provisions are phrased in terms of the responsibilities imposed upon the State, their purpose is to protect the rights of individuals.

In addition to the foregoing provisions, the PASRR requirements to offer specialized services, alternative placement, and notice of PASRR determinations also focus on the rights of individual residents who are beneficiaries of these services. See 42 U.S.C. § 1396r(e)(7)(C). Like the PASRR evaluation sections quoted above, these provisions also begin with a mandatory command: “[T]he State must meet the following requirements....” Id. The provision mandates:

In the case of a resident who is determined ... to require specialized services for ... mental retardation, ... the State must, in consultation with the resident’s family or legal representative and caregivers—

(I) inform the resident of the institutional and noninstitutional alternatives covered under the State plan for the resident,

(II) offer the resident the choice of re•maining in the facility or of receiving covered services in an alternative appropriate institutional or noninstitutional setting, [and] ...

(IV) ... provide for (or arrange for the provision of) such specialized services for the ... mental retardation.

42 U.S.C. §§ 1396r(e)(7)(C)(i)(D, (II), (IV).

Unlike the statutory provisions at issue in Gonzaga, which the Supreme Court found to be “two steps removed from the interests of [the individual plaintiffs],” Gonzaga, 536 U.S. at 287, 122 S.Ct. 2268, the PASRR provisions above directly impact individual nursing home residents because they determine whether the resident will be placed in a nursing facility and what services the individual will receive. Thus, 42 U.S.C. § 1396r(e)(7) places “an unmistakeable focus on the benefited class,” which here is individuals with mental disabilities who have been or will be placed in nursing facilities. See Gonzaga, 536 U.S. at 284, 122 S.Ct. 2268. The PASRR provisions’ mandate of individualized determinations, see 42 U.S.C. §§ 1396r(e)(7)(A), (e)(7)(B), (b)(3)(F)(ii), indicates that Congress intended to create “an individual entitlement to services,” see Gonzaga, 536 U.S. at 281, 122 S.Ct. 2268, that would “give rise to individual rights,” id. at 288, 122 S.Ct. 2268.

Further, despite Defendants’ arguments to the contrary (see Rule 12(c) Reply at 56), Ninth Circuit precedent indicates that the fact that the statute is phrased in terms of requirements for a state plan does not foreclose a finding that the statute also gives rise to individual rights. In Watson v. Weeks, 436 F.3d 1152 (9th Cir.2006), the Ninth Circuit held that the language in the Medicaid Act, 42 U.S.C. § 1396a(a)(10), which states that “[a] State plan for medical assistance must ... provide ... for making medical assistance available ... to ... all [eligible] individuals” creates a right enforceable under 42 U.S.C. § 1983. Watson, 436 F.3d at 1160. Specifically, the Ninth Circuit held that this type of statutory language has the same individual rights focus as the “[n]o person shall ... be subjected to discrimination” language that the Supreme Court in Gonzaga, 536 U.S. at 284, 122 S.Ct. 2268, concluded was explicitly rights-creating. Watson, 436 F.3d at 1160 (“This language is unmistakably focused on the specific individuals benefited .... ”); see also Sabree ex rel. Sabree v. Richman, 367 F.3d 180, 190 (3d Cir.2004); S.D. ex rel Dickson v. Hood, 391 F.3d 581, 603 (5th Cir.2004).

Defendants are correct that the NHRA is a spending statute and that such statutes generally do not create enforceable rights. Gonzaga, 536 U.S. at 280-81, 122 S.Ct. 2268. The typical remedy for state noncompliance with federally imposed conditions in a spending statute is not a private cause of action for noncompliance but rather action by the federal government to terminate funds to the state. Ball v. Rodgers, 492 F.3d 1094, 1103-04 (9th Cir.2007). However, such statutes may create rights enforceable under § 1983 when “Congress speaks with a clear voice and 'manifests an unambiguous intent to confer individual rights.” Id. at 1104 (quoting Gonzaga, 536 U.S. at 280, 122 S.Ct. 2268) (internal quotations and alterations omitted). In addition, when the remedial devices specified in the statute are sufficiently comprehensive, those devices may suffice to demonstrate Congressional intent to preclude the remedy of suits under § 1983. Id.

In Ball, the Ninth Circuit concluded that Congress intended to create individual rights enforceable via § 1983 in the free choice provisions of the Medicaid Act, 42 U.S.C. § 1396n(c)(2)(C) and § 1396n(d)(2)(C), based on the provision’s repeated use of the word “individuals.” The court concluded that the use of this term in conjunction with language describing the right to be informed and the right to choose among alternatives indicated that the statutory provisions were “ ‘concerned with whether the needs of any particular person have been satisfied,’ and not solely with an aggregate ‘institutional policy and practice.’ ” Ball, 492 F.3d at 1107 (quoting Gonzaga, 536 U.S. at 288, 122 S.Ct. 2268). “While express use of the term ‘individuals’ (or ‘persons’ or similar terms) is not essential to finding a right for § 1983 purposes, usually such use is sufficient for that purpose.” Id. at 1108. Thus, the same analysis that the Ninth Circuit utilized in Ball would apply to the PASRR provisions of the NHRA at issue here, which specifically and repeatedly refer to “residents” of a nursing facility or “individuals” who are “mentally retarded.” See 42 U.S.C. §§ 1396r(e)(7)(A)(i); 1396r(b)(3)(F)(ii); 1396r(e)(7)(B)(ii)(I), (II); 1396r(e)(7)(C)(i)(I), (II), (IV). See also Joseph S., 561 F.Supp.2d at 305 (“[T]he NHRA’s denial of payment is based on improper individual determinations and is thus distinguishable from a denial of funding under FERPA, the statute at issue in Gonzaga, which is triggered by a prohibited policy or practice”) (italics in original). Based on the foregoing analysis, the court denies Defendants’ motion to dismiss Mr. Dunakin’s § 1983 claim under the PASRR provisions of the NHRA.

3. Claims 2 and 3 — Alleged Violations of the ADA and Section 504 of the Rehabilitation Act

Generally, the ADA and Section 504 of the Rehabilitation Act prohibit discrimination against individuals with disabilities. There is no significant difference in the analysis of rights and obligations created by Title II of the ADA and Section 504.of the Rehabilitation Act, and therefore ordinarily they may be interpreted and applied together. See, e.g., McGary v. City of Portland, 386 F.3d 1259, 1265 n. 7 (9th Cir.2004); Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1136 (9th Cir.2001). Defendants argue that Mr. Dunakin’s complaint fails to state a claim under either statute. (Rule 12(c) Mot. at 14-16.)

Federal regulations implementing both the ADA and Section 504 have specific provisions referred to as “integration” regulations or mandates, which require public entities to treat individuals with disabilities in the “most integrated setting appropriate to the[ir] needs.” 28 C.F.R. §§ 35.130(d), 41.51(d). In Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999), the Supreme Court held that these integration mandates require a state to provide services to individuals in community settings rather than institutions whenever the relevant professionals conclude that the services required by the individual may appropriately be rendered in a community setting, unless the expense involved would fundamentally alter the state’s overall services and programs. Id. at 607, 119 S.Ct. 2176.

In Olmstead, the Supreme Court considered the scope of the ADA’s integration mandate: “Specifically,’ we confront the question of whether the proscription of discrimination [in Title II of the ADA] may require placement of persons with mental disabilities in community settings rather than in institutions. The answer, we hold, is a qualified yes.” Id. at 587, 119 S.Ct. 2176. The Court held that “[u]njustified isolation ... is properly regarded as discrimination based on disability.” Id. at 597, 119 S.Ct. 2176. Thus, unnecessary segregation of persons with mental disabilities is discrimination per se under either the ADA or Section 504 of the Rehabilitation Act. See id.; see also Joseph S., 561 F.Supp.2d at 290. The state is to provide community-based treatment for persons with mental disabilities when such placement is appropriate, so long as “the affected person does not oppose such treatment, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.” Olmstead, 527 U.S. at 607, 119 S.Ct. 2176.

In Townsend v. Quasim, 328 F.3d 511 (9th Cir.2003), the Ninth Circuit applied the Olmstead decision to individuals at risk of being confined to nursing facilities who, with long-term care services, could live in alternative community-based settings. The Ninth Circuit stated that to prove that a public service or program violates Title II of the ADA, a plaintiff must show that (1) he is a qualified individual with a disability; (2) he was either excluded from participation in or denied the benefits of a public entity’s services, programs, or activities or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of his disability. 328 F.3d at 516. Plaintiff Townsend sought access to appropriate community-based, long-term care service in lieu of nursing facility placement. Id. at 514. The.Ninth Circuit held that Washington State violated Title II of the ADA when it failed to provide long-term care services to the plaintiff and other class members in community settings unless the state could demonstrate that providing the services would fundamentally alter its Medicaid programs. Id. at 518.

Here, Mr. Dunakin alleges that he is a qualified individual with a disability. (Compl. ¶¶ 5,16, 28.) He alleges that he is eligible for a PASRR Level II evaluation, specialized services, and alternative community placement, but has been inhibited from accessing such services because Defendants have failed to conduct the required evaluation that would make such alternative community-based placement options and services available to him. (Id. ¶¶ 16, 29-31, 36-39, 42.) Mr. Dunakin pleads that he would like to receive his long-term care services in a less restrictive community-based setting. (Id. ¶32.) He also pleads that, because Defendants have failed to conduct a PASRR Level II evaluation, he has been denied non-institutional care or services that could lead to discharge, resulting in discrimination against him on the basis of his disability. (Id. ¶¶ 35-42.) Finally, he pleads the specific services, programs, or activities at issue. Specifically, he alleges that he seeks a PASRR evaluation, PASRR specialized services, notice pursuant to PASRR about the state’s determination and information about available alternative community-based placements, and appropriate less restrictive placement. (Compl. ¶ 32, § VIII, ¶ 3.)

These allegations are sufficient to state claims under both the ADA and Section 504 of the Rehabilitation Act. See Joseph S., 561 F.Supp.2d at 292 (rejecting similar arguments by state defendants in that case); see also Day v. Dist. of Columbia, 894 F.Supp.2d 1, 22-23 (D.D.C.2012) (holding that, to state a claim under the ADA or Section 504 of the Rehabilitation Act, it was sufficient to allege that the District provided the existing system through which the plaintiffs received long-term care services and, in so doing, had utilized criteria that had caused the plaintiffs to be confined unnecessarily in order to obtain long-term care services, rather than facilitate their transition to the community with appropriate services and supports); State of Connecticut Office of Protection & Advocacy for Persons with Disabilities v. Connecticut, 706 F.Supp.2d 266, 276 (D.Conn.2010). Accordingly, the court denies Defendants’ motion to dismiss Mr. Dunakin’s claims based on the ADA or Section 504 of the Rehabilitation Act.

4. Claim 4 — Alleged Violations of Title XIX of the Social Security Act

Mr. Dunakin pleads four claims under Title XIX of the Social Security Act. (Compl. ¶ 44.) He pleads that Defendants violated the Act by failing to provide Medicaid benefits (1) with reasonable promptness; (2) in compliance with Medicaid comparability requirements; (3) with a meaningful choice of providers, including a choice between institutional and community based services; and (4) with adequate written notice of Defendants’ determinations, as well as the right to appeal to Defendants’ administrative hearing process. (Id.) Defendants argue that these claims must be dismissed. (Rule 12(c) Mot. at 16-21.)

a. Reasonable Promptness

Defendants assert that the Social Security Act requires only that they promptly pay for Medicaid-covered services, and not that they arrange for or provide for such services. (Id. at 16-18.) Mr. Dunakin’s claim for the provision of Medicaid benefits with reasonable promptness is based in part on 42 U.S.C. § 1396a(a)(8). (Compl. ¶ 44.) That provision of the Medicaid Act requires that “[a] State plan for medical assistance must ... provide that all individuals wishing to make application for medical assistance under the plan shall have an 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). Defendants argue that Mr. Dunakin fails to state a claim under this provision because the Medicaid Act defines “medical assistance” as payment of part or all of the cost of services. (See Rule 12(c) Mot. at 16-17 (quoting 42 U.S.C. § 1396d(a) (2009)).) Defendants argue that the statute relates to the promptness of payment for services and not the actual provision of services, such as a PASRR evaluation, by the state. (See id.) Defendants assert that because Mr. Dunakin does not allege that the state refused to pay for services, his claim based on Defendants’ alleged failure to provide Medicaid benefits with reasonable promptness under 42 U.S.C. § 1396a(a)(8) should be dismissed.

Defendants argument, however, appears to be based on an outdated version of 42 U.S.C. § 1396d(a). Until recently, the Medicaid Act defined “medical assistance” as “payment of part or all of the cost of’ services. Leonard v. Mackereth, No. 11-7418, 2014 WL 512456, at *5 (E.D.Pa. Feb. 10, 2014) (quoting 42 U.S.C. § 1396d(a) (2009)). Based on that definition, some federal courts held that a state’s obligation was limited to providing financial assistance only. Id. This is the argument that Defendants have adopted here. (Rule 12(c) Mot. at 16-17.) As part of the Patient Protection and Affordable Care Act, however, Congress amended the definition of “medical assistance” under 42 U.S.C. § 1396d(a). As of March 23, 2010, “[t]he term ‘medical assistance’ means payment of part or all of the cost of ... care and services or the care and services themselves or bothir 42 U.S.C. § 1396d(a) (italics added). As one court has noted, it appears that Congress intended “to clarify that where the Medicaid Act refers to the provision of services, a participating State is required to provide (or ensure the provision of) services, not merely to pay for them.” John B. v. Emkes, 852 F.Supp.2d 944, 951 (M.D.Tenn.2012); see also Disability Rights N.J., Inc. v. Velez, No. Civ. A.05-4723, 2010 WL 5055820 (D.N.J. Dec. 2, 2010) (reversing prior order granting summary judgment to the defendants and reinstating the plaintiffs claim because subsequently amended definition of “medical assistance” in 42 U.S.C. § 1396d(a) included not only financial assistance but also actual care and services).

Following Mr. Dunakin’s reference to and analysis of the amended version of 42 U.S.C. § 1396d(a) (see Rule 12(c) Resp. (Dkt. #40) at 18-19), Defendants drop their assertion of this argument in their reply memorandum (Rule 12(c) Reply at 10-11). Accordingly, based on the amended definition of “medical assistance” in 42 U.S.C. § 1396d(a), the court denies Defendants’ motion to dismiss Mr. Dunakin’s claim under Title XIX of the Social Security Act on this ground.

b. Medicaid Comparability

The “comparability” requirement of the Medicaid Act is set forth in 42 U.S.C. § 1396a(a)(10)(B)(i), which provides that a state plan for medical assistance made available to an individual “shall not be less in amount, duration, or scope than the medical assistance made available to any other such individual .... ” Id.; see also 42 C.F.R. § 440.240. The comparability requirement “mandates comparable services for individuals with comparable needs and is violated when some recipients are treated differently than others where each has the same level of need.” Cota v. Maxwell-Jolly, 688 F.Supp.2d 980, 993 (N.D.Cal.2010); see Sobky v. Smoley, 855 F.Supp. 1123, 1140-41 (E.D.Cal.1994) (“The present language of the statute [42 U.S.C. § 1396a(a)(10)(B)(i) ] ... expressly requires that any categorically needy individual receive medical assistance not less in amount, duration, and scope than that received ‘by any other such individual.’ ”).

Mr. Dunakin asserts that he has pleaded that he and other individuals with intellectual disabilities and related conditions do not have the specialized services that constitute “active treatment,” and that those services are provided to other similarly needy individuals placed in Defendants’ intermediate care facilities for individuals with intellectual disabilities (“ICF-IIDs”). (Rule 12(c) Resp. at 19.) Mr. Dunakin argues that Defendants efforts to reform the State’s PASRR program did not include the approximately 300 people with developmental disabilities and related conditions who were living in privately-operated nursing facilities. {Id. at 20 (citing Appendix A to the complaint (Dkt. # 1-1) (attaching a copy of DDA’s 2014 Supplemental Budget stating that DDA’s “immediate steps” to reform the PASRR program “do not address the issue of the approximately 300 people with developmental disabilities who are currently in community nursing facilities.”)).) He further argues that “[e]ven five months after the lawsuit was filed, [Defendants’ Rule 30(b)(6) witness testified that only a few [of these individuals] were actually receiving specialized services.” (Rule 12(c) Resp. at 20.)

Although pleading such a claim may be feasible, Mr. Dunakin has failed to do so here. The facts he describes in his response may have been developed in discovery, but they are not adequately pleaded in his complaint. In his response to Defendants’ motion to dismiss, Mr. Dunakin cites several provisions of his complaint (see Rule 12(c) Resp. at 19 (citing Compl. ¶¶ 22-23, 26,-32)), but the claim described above is not to be found within them. Accordingly, the court grants Defendants’ motion to dismiss Mr. Dunakin’s claim based on Medicaid comparability. However, as discussed below, the court also grants Mr. Dunakin leave to amend his complaint with respect to this claim.

c. Meaningful Choice of Provider Provision

Mr. Dunakin bases his third claim under Title XIX of the Social Security Act on one of the “free choice” provisions of the Medicaid Act. (See Compl. ¶ 44 (citing 42 U.S.C. §§ 1396n(c)(2)(B) and (C)).) The portion of the Medicaid Act at issue relates to the federal home- and community-based services (“HCBS”) waiver program, which allows states to be reimbursed for providing beneficiaries with noninstitutional care, so long as the cost of providing this care is less than or equal to the cost of caring for the same beneficiaries in more traditional long-term institutions. See Ball v. Rodgers, 492 F.3d 1094, 1107 (9th Cir.2007). HCBS waivers, however, are only available if a state provides certain “assurances” to the Secretary of Health and Human Services. Id. (citing 42 U.S.C. § 1396n(c)(2), (d)(2)). Section 1396n(c)(2)(C), upon which Mr. Dunakin relies, provides that certain individuals, as defined in § 1396n(c)(2)(B),

who are determined to be likely to require the level of care provided in a hospital, nursing facility, or intermediate care facility for the mentally retarded are informed of the feasible alternatives, if available under the waiver, at the choice of such individuals,