United States District Court, S.D. Ohio,
Eastern Division. PARENTS LEAGUE FOR EFFECTIVE AUTISM
SERVICES, et al., Plaintiffs v.
Helen JONES-KELLEY, et al., Defendants. No. 2:08-cv-421.
June 30, 2008.
Background: Association of parents and families with children who had been diagnosed with autism, and who had been receiving services from statecertified community mental health agency, brought § 1983 action on behalf of its members to prevent amended versions of the Ohio Administrative Code from going into effect that would allegedly have curtailed services that were compensable under Ohio's Medicaid program in violation of federal Medicaid law. Defendants moved to dismiss.
Holdings: The District Court, James L. Graham, J., held that: (1) association had standing to bring § 1983 action on behalf of its members to seek prospective injunctive relief; and (2) language in federal Medicaid law requiring state Medicaid plans, as prerequisite to federal funding, to provide early and periodic screening, diagnosis and treatment services (EPSDT) for eligible individuals under age of 21 conferred unambiguous right to such services on parents and families of autistic children, of kind enforceable under § 1983.
Motion denied.
*897 Michelle Francine Atkinson, Susan Gail Tobin, Ohio Legal Rights Service, Columbus, OH, for Plaintiffs.
Ara Mekhjian, Roger Francis Carroll, Jennifer Anne Adair, Ohio Attorney General's Office, Columbus, OH, for Defendants.
Memorandum Opinion and Order
JAMES L. GRAHAM, District Judge.
This matter is before the Court on a joint motion to

dismiss, pursuant to Fed. R. Civ. 12(b)(6) FN1 filed by Defendants Helen Jones-Kelley, in her official capacity as Director of the Ohio Department of Job and Family Services (ODJFS) and Sandra Stephenson, in her official capacity as Director of the Ohio Department of Mental Health (ODMH) (collectively Defendants). Plaintiffs are Parents League for Effective Autism Services (PLEAS), X.C., a minor and his parent, W.G., a minor and his parent, and K.W., minor and his parent.
FN1. In their motion, Defendants alternatively seek dismissal pursuant to Fed.R.Civ.P. 12(b)(7) for failure to join the Federal Centers for Medicare and Medicaid (CMS). On June 20, 2008, this Court ordered the joinder of CMS. Thus, Defendants motion to dismiss for failure to join a party is moot.
Plaintiffs filed a complaint for injunctive and declaratory relief FN2, and a motion for temporary restraining order, asking this Court to enjoin the Defendants from enforcing proposed Ohio Administrative Rules governing the provision of services to children under Ohio's Medicaid program, and to require Defendants to continue providing for “medically necessary services,” including applied behavior analysis (“ABA”). Plaintiffs further seek declaratory judgment that the Defendants' proposed rules violate the Plaintiffs' rights under federal Medicaid law. On May 19, 2008, Defendants filed their joint motion to dismiss. Plaintiffs filed their response on June 3, 2008. On June 9, 2008, Defendants filed their reply memorandum in support of the motion to dismiss. As set forth below, the Court denies the Motion to Dismiss.
FN2. Plaintiffs filed an amended complaint for injunctive and declaratory relief on June 24, 2008.
I. FACTUAL BACKGROUND
Plaintiff PLEAS is an association of parents and families and children, including the three individual plaintiffs, who have a diagnosis on the autism spectrum. Plaintiffs, including the three individual plaintiff children, are children under the age of twenty-one who are eligible for Medicaid. Plaintiff children represented by PLEAS, as well as the three

individual children, X.C., W.G., and K.W., receive mental health services, funded by Medicaid, from Step By Step Academy (SBSA). SBSA is a nationally accredited and state certified community mental health agency that provides mental health services to children with autism. Autism is a “complex neurodevelopmental disability that generally appears during the first three years of life which impacts the normal development of the brain, resulting in impairments of social interaction, verbal and nonverbal communication, leisure and play activities, and learning.” (Complaint at ¶ 53). If untreated, autism often results in lifelong mental retardation. (Id.).
SBSA provides a variety of services to its students. These services include full-day center based applied behavior analysis (ABA), psychological assessments and diagnosis, parent advocacy and resource information and home outreach services, including*898 one-to-one services. (Id. at ¶ 56). The services received by Plaintiff children are recommended by their physicians and/or other licensed practitioners. The three individual plaintiffs have benefitted from the services received at SBSA. Benefits include “increased IQ levels, reduction in developmental disabilities, decrease in behavioral outbursts, increase in on-task behaviors, decrease in self-stimulation behaviors, increased communication skills, increased daily living skills, such as toileting, dressing, food preparation, and a decreased chance of being placed in segregated special education classrooms or institutional settings.” (Id. at ¶ 57).
Defendant Helen Jones-Kelley is the Director of ODJFS, which is the agency responsible for the administration of the Medicaid program in Ohio. As Director, Jones-Kelley is responsible for ensuring that Ohio's medicaid program complies with federal Medicaid statutes and regulations. Jones-Kelley is also responsible for ensuring that other state and county agencies and subdivisions which provide services funded by Medicaid comply with applicable federal laws. Defendant Sandra Stephenson is the Director of ODMH. As Director, Stephenson is responsible for adopting standards for services provided by community mental health facilities. ODJFS and ODMH are parties to an interagency agreement to provide behavioral health services to people who are eligible for Ohio Medicaid benefits.

Defendants, in their official capacities, have promulgated new rules governing medical services to disabled children under Medicaid. These rules are scheduled to go into effect on July 1, 2008. According to Plaintiffs, the new rules violate federal Medicaid laws and will result in a severe reduction of medically necessary services to Plaintiff children. Plaintiffs assert that without these services, the children currently served by SBSA face a regression in skills and an increase in inappropriate and/or dangerous behaviors. Plaintiffs PLEAS asserts that its members will be unable to afford the necessary services without Medicaid funding and that there are no comparable alternative providers or options available to them. Plaintiffs bring their claims pursuant to 42 U.S.C. § 1983. The Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question jurisdiction), 28 U.S.C. §§ 1343(3) and (4) (jurisdiction over actions involving civil rights) and 28 U.S.C. §§ 2201 and 2202 (district court has the authority to grant declaratory judgment).
Medicaid, authorized by Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq., is a joint federal and state program designed to provide “medical assistance” to needy individuals. Its administration is entrusted to the Secretary of Health and Human Services (HHS), who in turn exercises his authority through the Centers for Medicare and Medicaid Services (CMS). Ark. HHS v. Ahlborn, 547 U.S. 268, 275, 126 S.Ct. 1752, 164 L.Ed.2d 459 (2006). The Medicaid program is subsidized by the federal government, but is administered by the states. Catanzano by Catanzano v. Wing, 103 F.3d 223, 225 (2nd Cir.1996). While participation in the program is voluntary, once a state chooses to participate, it must comply with the requirements of the Medicaid Act and its regulations. Harris v. McRae, 448 U.S. 297, 300, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980)(although participation is optional, once a state elects to participate, it must comply with the requirements of Title XIX); State of Louisiana v. HHS, 905 F.2d 877, 878 (5th Cir.1990)(although states have considerable discretion to design and operate their individual programs, they must maintain their plans in compliance with federal requirements in order to ensure federal funding).
*899 Participating states must submit a “state plan” to CMS for approval before that state may receive Medicaid funds. See42 U.S.C. §§ 1396a(a) & (b); see

also, Catanzano, 103 F.3d at 225. The state plan initially must be approved by the Secretary of Health and Human Services. 42 U.S.C. § 1316(a)(1). Thereafter, a state that seeks to change its state plan may submit an amendment to CMS for approval. See42 C.F.R. § 430.14-430.15; La. Dep't of Health & Hosps. v. Ctr. for Medicare & Medicaid Servs., 346 F.3d 571, 572 (5th Cir.2003) (stating that 42 C.F.R. § 430.14-430.15 records the Secretary's delegation of authority for approving state plan amendments to CMS). Ohio has an approved state plan. Ohio Dep't of Mental Retardation & Developmental Disabilities v. U.S. Dep't. of Health and Human Services, Health Care Financing Admin., 761 F.2d, 1187,1188 (6th Cir.1985). Ohio's statutory scheme for the provision of Medicaid is found at Ohio Rev.Code. § 5111.01 et seq. and its regulations found at Ohio Admin. Code Chapter 5101.
Compliance with federal Medicaid law requires a participating state to provide medical assistance to certain classes of people, including disabled children. 42 U.S.C. § 1396a(a)(10)(A). A state plan must provide a range of mandatory medical services to Medicaid recipients. 42 U.S.C. § 1396d(a)(1)-(28) (setting forth the various required services); see also S.D. v. Hood, No. 02-2164 Section “N”, 2002 WL 31741240, 2002 U.S. Dist. LEXIS 23535 (E.D.La. Dec. 5, 2002)(federal law mandates that the states provide a range of medical services). One of the mandatory medical services required by the Medicaid Act is early and periodic screening, diagnosis and treatment services (EPSDT) for eligible individuals under the age of twenty-one. 42 U.S.C. §§ 1396a (a)(43). EPSDT is defined at 42 U.S.C. § 1396d(r) and includes the following specific services: screening services to determine the existence of certain physical or mental illnesses or conditions (§ 1396d(r)(1)(A)(ii)), vision services (§ 1396d(r)(2)), dental services (§ 1396d(r)(3)), and hearing services (§ 1396d(r)(4)). EPSDT also includes:
such other necessary healthcare, diagnostic services, treatment, and other measures described in section 1905(a) to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the State plan.
42 U.S.C. § 1396d(r)(5). State plan requirements for EPSDT are further set out in 42 C.F.R. § 441.50.

Ohio's EPSDT plan is referred to as “Healthchek” and is codified at Ohio Admin. Code 5101:3-14-015101:3-14-22. The purpose of Healthchek is to “maintain health by providing early intervention to discover and treat health problems.” Ohio Admin. Code 5101:3-14-01(A). Plaintiff children are eligible for EPSDT services. In Ohio, ESPDT services are covered by medicaid “when the services are medically necessary, as defined in rule 5101:3-1-01 of the Administrative Code, to treat or ameliorate a defect, physical or mental illness, or condition.” Ohio Admin. Code 5101:3-14-05(E). The term “medically necessary” is defined as “services that are necessary for the diagnosis or treatment of disease, illness, or injury and without which the patient can be expected to suffer prolonged, increased or new morbidity, impairment of function, dysfunction of a body organ or part, or significant pain and discomfort.” Ohio Admin. Code 5101:3-1-01(A). In addition, a medically necessary service must: 1) meet generally accepted standards of medical practice (5101:3-101(A)(1)); 2) be appropriate to the illness or injury for which it is performed as to type of service and expected outcome *900 (5101:3-1-01(A)(2)); 3) be appropriate to the intensity of service and level of setting (5101:3-1-01(A)(3)); 4) provide unique, essential, and appropriate information when used for diagnostic purposes (5101:3-1-01(A)(4)); 5) be the lowest cost alternative that effectively addresses and treats the medical problem (5101:3-1-01(A)(5)); and 6) meet general principles regarding reimbursement for medicaid covered services found in rule 5101:3-102 of the Administrative Code (5101:3-1-01(A)(6)). Ohio's state plan specifically identifies certain services which are covered, however, the fact that a state plan does not mention a particular service does not mean it is not a covered EPSDT service. See42 U.S.C. § 1396d(r)(5) (setting forth EPSDT requirements and specifically stating that services are required, “whether or not such services are covered under the State plan”); see also, Pediatric Specialty Care, Inc. v. Ark. Dep't of Human Servs., 293 F.3d 472, 480 (8th Cir.2002) (the state plan need not specifically list every treatment service conceivably available under the EPSDT mandate).
At issue in this case are proposed changes to Ohio's Medicaid plan which become effective on July 1, 2008. Currently, Ohio's state plan covers certain community mental health services, so long as those

services are “rendered by eligible medicaid providers.” Ohio Admin. Code 5101:3-27-02(A). Under this section, mental health services includes community psychiatric supportive treatment (CPST). SeeOhio Admin. Code 5101:3-27-02(A)(6). The individual Plaintiff children currently receive community mental health services from SBSA which are covered by Medicaid. The new version 5101:327-02, effective July 1, 2008, is amended to clarify that only “rehabilitative” mental health services will be reimbursed by Medicaid. Ohio Admin. Code 5101:3-27-02(A), eff. 7/1/08. “Rehabilitative services” are defined in the amended version as providing for the “maximum reduction of mental illness and are intended to restore an individual to the best possible functional level.” Id. CSPT services will continue to be covered by medicaid subject to certain limitations. Ohio Admin Code 5101:3-27-02(A)(6), eff. 7/1/08. According to Plaintiffs, these changes narrow the definition and eligibility for CPST services by creating a definition of “rehabilitative” that is more restrictive than the federal regulations. The federal regulations define “rehabilitative services” as “any medical or remedial services recommended by a physician or other licensed practitioner of the healing arts, within the scope of his practice under State law, for maximum reduction of physical or mental disability and restoration of a recipient to his best possible functional level.” See 42 C.F.R. § 440.130(d). The federal regulations do not require that the rehabilitative service reduce “mental illness.”
The second proposed change is to Ohio Admin. Code 5122-29-17, which governs CSPT services. The current version, in effect until July 1, 2008, provides that CSPT services are “an array of services delivered by community based, mobile individuals or multidisciplinary teams of professionals and trained others [that] address the individualized mental health needs of the client.” Ohio Admin. Code 5122-2917(A). Under the version currently in effect, CPST services “should be focused on the individual's ability to succeed in the community; to identify and access needed services; and to show improvement in school, work and family and integration and contributions within the community.” Id. The amended version of Ohio Admin Code 5122-29-17, eff. 7/1/08, specifies that CSPT service is a “rehabilitative service intended to maximize the reduction of symptoms of mental illness in *901 order to restore the individual's functioning to the highest level possible.” The new

rule restricts coverage of rehabilitative services to individuals with “mental illness,” thereby effectively excluding other physical and mental disabilities from coverage.
Plaintiffs assert that the proposed changes to the Ohio Administrative Code are in conflict with the mandatory requirements of federal law because Ohio is attempting to unlawfully restrict access to federally guaranteed medically necessary services. Plaintiffs bring their Complaint pursuant to 42 U.S.C. § 1983. Plaintiffs ask this Court to enjoin the Defendants from enforcing the proposed rules. In response, Defendants have filed a joint motion to dismiss, asserting several bases for dismissal. First, Defendants assert that Plaintiff PLEAS has no standing and that counsel for Plaintiffs, Ohio Legal Rights Services (OLRS) cannot represent an association like PLEAS. Defendants further assert that the Plaintiffs complaint must be dismissed because they have not asserted a right enforceable through 42. U.S.C. § 1983.
II. STANDARD OF REVIEW
When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court must construe the complaint in the light most favorable to the plaintiff and accept all well-pleaded material allegations in the complaint as true. Erickson v. Pardus, 550 U.S. ----, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)); Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291, 295 (6th Cir.2008). A motion to dismiss under Rule 12(b)(6) will be granted only if the complaint is without merit due to an absence of law to support a claim of the type made or of facts sufficient to make a valid claim, or where the face of the complaint reveals that there is an insurmountable bar to relief. Rauch v. Day & Night Mfg. Corp., 576 F.2d 697 (6th Cir.1978). Under Rule 8(a), “[s]pecific facts are not necessary; the statement need only ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ” Erickson, 127 S.Ct. at 2200 (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Because a motion under Rule 12(b)(6) is directed solely at the complaint itself, the court must focus on whether the claimant is entitled to offer evidence to support the claims, rather than whether the plaintiff will

ultimately prevail. Scheuer, 416 U.S. at 236, 94 S.Ct. 1683; Bell Atlantic Corp. v. Twombly, 550 U.S. ----, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007) (Rule 8 “does not impose a probability requirement at the pleading stage”).
Despite this liberal pleading standard, a court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986); see also Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987) (“[W]e need not accept as true legal conclusions or unwarranted factual inferences.”). Though the complaint need not contain detailed factual allegations, the factual allegations must be enough to raise the claimed right to relief above the speculative level and to create a reasonable expectation that discovery will reveal evidence to support the claim. Bell Atlantic, 127 S.Ct. at 1964-65; Associated Gen. Contractors of Cal., Inc. v. Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983). The plaintiff must provide the grounds of his entitlement to relief “rather than a blanket assertion of entitlement to relief.” Bell Atlantic, 127 S.Ct. at 1965 n. 3. Labels, conclusions, and formulaic recitations of the elements of a cause of action *902 “will not do.” Id. at 1965. “Accordingly, a complaint ‘must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory.’ ” Ferron v. Zoomego, Inc., No. 074007, 2008 WL 1988587, at *2 (6th Cir. May 7, 2008) (Lewis v. ACB Business Serv., Inc., 135 F.3d 389, 406 (6th Cir.1998)).
III. LEGAL ARGUMENT
A. Whether Plaintiff PLEAS has standing.
[1][2][3] Plaintiff PLEAS is an association made up of parents and children receiving services at SBSA. An association has standing to sue on behalf of its members when (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit N.Y. State Club Ass'n v. City of New York, 487 U.S. 1, 108 S.Ct. 2225, 101 L.Ed.2d 1 (1988). Only the first two prongs of this test are constitutionally mandated

while the third requirement is prudential as a matter of “administrative convenience and efficiency.” United Food & Commercial Workers Union Local 751 v. Brown Group, 517 U.S. 544, 557, 116 S.Ct. 1529, 134 L.Ed.2d 758 (1996). Associational standing “recognizes that the primary reason people join an organization is often to create an effective vehicle for vindicating interests that they share with others.” Int'l Union, United Auto., Aerospace & Agric. Implement Workers v. Brock, 477 U.S. 274, 281, 106 S.Ct. 2523, 91 L.Ed.2d 228 (1986).
[4][5] Under the three part analysis, Plaintiff PLEAS has standing. The first prong of the test is clearly met. Plaintiffs' members, children receiving services for their disability at SBSA, have standing to sue in their own right. Standing to sue means that a party has sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy. Dutoit v. Board of Johnson County Comm'rs, 233 Kan. 995, 1003, 667 P.2d 879 (1983). PLEAS members, as children currently receiving services at SBSA who face the potential immediate loss of such services, have a sufficient stake in a justiciable controversy. John Roe # 2 v. Ogden, 253 F.3d 1225, 1230 (10th Cir.2001) (finding that an organization had standing because one of its members had standing to sue in his own right). The second prong of the test is also met. Liberally construed, the complaint establishes that PLEAS was formed by groups of parents of children with autism who receive services at SBSA for the purpose of working together as advocates for effective autism services. The relief sought in the complaint is germane to PLEAS' purpose.
[6][7] The third prong requires a finding that the claim and relief do not require the participation of individual members in the lawsuit. Individual members' participation is not normally necessary when an association seeks prospective or injunctive relief. Sandusky County Democratic Party v. Blackwell, 387 F.3d 565, 574 (6th Cir.2004). Where the issue involves resolution of a question of law, and leaves resolution of individual eligibility to be determined later, individual participation is not required. See International Union, United Auto., etc. v. Brock, 477 U.S. 274, 287, 106 S.Ct. 2523, 91 L.Ed.2d 228 (1986) (though the unique facts of each member's claim will have to be considered before he can receive benefits allegedly due him, the union

could litigate the legal issue without the participation of members); National Air Traffic Controllers Ass'n v. Pena, 944 F.Supp. 1337 (individual participation not *903 required where the injunctive relief sought would inure to the benefit of all members).
In the instant case, Plaintiffs ask for injunctive relief to prevent the amended versions of the Ohio Administrative Code from going into effect on July 1, 2008. Plaintiffs allege that the proposed amendments to the rules are contrary to the State's obligation to provide medically necessary services to children under the federal Medicaid requirements of EPSDT. The relief sought by Plaintiffs is a declaration that the proposed Ohio rules violate federal Medicaid law. While the ultimate resolution of which services might be covered for a given child would require individual participation, the legal question of the legality of the amendments does not need such participation. The Court finds that PLEAS has standing to bring this case.
[8] The Court further finds that the Defendants' additional argument that OLRS cannot represent PLEAS is not properly raised in a motion to dismiss under Fed.R.Civ.P. 12(b)(6). Defendants assert that the OLRS is a “protection and advocacy system” established by the Developmental Disabilities Assistance and Bill of Rights Act (DDA) and the Protection and Advocacy for Mental Ill Individuals Act (PAIMI). Ohio law implementing DDA and PAIMI is found at Ohio Rev.Code 5123.60, et seq. Defendants assert that OLRS is prohibited from representing an organization and therefore cannot represent PLEAS.
The Court has questions about the validity of the Defendants' argument, but in any event, it is not properly raised in a motion to dismiss. A motion to dismiss for failure to state a claim is granted where the complaint is without merit due to an absence of law to support a claim of the type made or of facts sufficient to make a valid claim, or where the face of the complaint reveals that there is an insurmountable bar to relief. Rauch v. Day & Night Mfg. Corp., 576 F.2d 697 (6th Cir.1978). Whether or not OLRS can represent PLEAS does not establish an absence of law to support the claims in the complaint nor does it present an insurmountable bar to relief. Accordingly, the issue of OLRS' ability to represent PLEAS is not properly made in a Civ. R.P. 12(b)(6) motion to

dismiss.
B. Whether Plaintiffs Have Alleged a Right Enforceable through 42 U.S.C. § 1983.
Plaintiffs assert that the Defendants have subjected them to a deprivation of rights, privileges or immunities granted them by federal law. The deprivation of rights stems from the Defendants' pending Administrative Rules which are an allegedly unlawful restriction on the ESPDT provisions set forth in 42 U.S.C. § 1396a(a)(10)(A), § 1396a(a)(43), § 1396d(a)(4)(B), and § 1396d(r). Plaintiffs assert that the EPSDT provisions of the Medicaid Act give them a federal right which can be enforced through a section 1983 claim.
[9][10][11] 42 U.S.C. § 1983 imposes liability on anyone “who, acting under color of law, deprives a person of any ‘rights, privileges, or immunities secured by the Constitution and laws.’ Not all violations of federal law give rise to § 1983 actions. Rather, the plaintiff must assert a violation of a federal right, not merely a violation of a federal law.” Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997). In determining whether a particular statutory provision gives rise to an enforceable right under § 1983, the Court must apply a three-part test as set forth in Blessing, 520 U.S. 329, 117 S.Ct. 1353, 137 L.Ed.2d 569, and modified in *904Gonzaga University v. Doe, 536 U.S. 273, 283, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002). First, the Court must determine whether Congress intended that the provision in question benefit the plaintiff. Second, the Court must consider “whether the right supposedly protected by the statute is vague and amorphous so that its enforcement would strain judicial competence.” Blessing, 520 U.S. at 340, 117 S.Ct. 1353. Finally, the Court must consider whether the provision unambiguously imposes a binding obligation on the States. Id. However, nothing short of an “unambiguously conferred right” will support a cause of action under § 1983. Gonzaga University, 536 U.S. at 283, 122 S.Ct. 2268.
[12] In 42 U.S.C. §§ 1396a(a)(10)(A) and 1396d(a)(4)(B), Congress specifically requires that state Medicaid plans provide EPSDT services. DaJour B. v. City of New York, No. 00 Civ.2044(JGK), 2001 U.S. Dist. LEXIS 10251 (S.D.

N.Y. April 10, 2001). 42 U.S.C. § 1396a(a)(43) provides, that a state plan for medical assistance must provide for informing all persons in the state under age of twenty-one about the availability of EPSDT services, must provide such screening services in all cases where they are requested, and must arrange for corrective treatment the need for which is disclosed by such child health screening services. 42 U.S.C § 1396a(a)(43)(A), (B) & (C). A state plan for EPSDT must include, at a minimum, the services set forth at 42 U.S.C. § 1396d(r).
The scattered statutory sections relating to EPSDT services, including 42 U.S.C. § 1396a(a)(10) and(43), § 1396d(a)(4)(B) and (r) (hereinafter collectively referred to as the “EPSDT provisions”) confer an unambiguous right on Plaintiffs that is enforceable through a § 1983 claim. Under the EPSDT provisions, eligible children are entitled to screening and treatment services. These provisions clearly benefit the Plaintiffs, who are such eligible children. Clark v. Richman, 339 F.Supp.2d 631, 640 (M.D.Pa.2004) (42 U.S.C § 1396a(a)(43) affords plaintiffs vindicable private rights enforceable through a section 1983 claim); S.D. v. Hood., 391 F.3d 581, 603 (5th Cir.2004)(“the EPSDT treatment provisions of the Medicaid Act contains the rightscreating language critical to showing the requisite congressional intent to confer a new right”); Kenny A. v. Perdue, 218 F.R.D. 277, 293-94 (N.D.Ga.2003) (the EPSDT statutory provisions are clearly intended to benefit children under the age of 21).
Second, the rights guaranteed by the EPSDT provisions of the Federal Medicaid law are not so “vague and amorphous” as to defeat judicial enforcement. Pediatric Specialty Care, Inc. v. Ark. Dep't of Human Servs., 293 F.3d 472 (8th Cir.2002); Kenny A., 218 F.R.D. at 293-94 (ESPDT provisions are not too “vague and amorphous” to be enforced by the judiciary). Finally, the third Blessing factor is met because the federal Medicaid Act imposes EPSDT obligations on the participating states. See S.D., 391 F.3d at 603 (the Medicaid statute unambiguously imposes EPSDT obligations on the participating states); see also, Miller by Miller v. Whitburn, 10 F.3d 1315, 1319 (7th Cir.1993) (holding that third Blessing factor is satisfied by EPSDT provisions because “states participating in the Medicaid program must provide EPSDT services to all individuals under age twenty-one”); Pediatric Specialty Care, 293 F.3d

at 478 (EPSDT provisions “clearly impose a binding obligation on the States”).
Accordingly, the Plaintiffs have alleged a right enforceable through 42 U.S.C.1983. See, Rosie D. v. Romney, 410 F.Supp.2d 18, 52 (D.Mass.2006) ( section 1983 is a proper way to enforce EPSDT provisions).
*905 IV. CONCLUSION
Based on the foregoing analysis, Defendants' motion to dismiss (doc. 13) is denied.
IT IS SO ORDERED.
S.D.Ohio,2008. Parents League for Effective Autism Services v. Jones-Kelley 565 F.Supp.2d 895
END OF DOCUMENT

 
 United States District Court, S.D. Ohio,
Eastern Division. PARENTS LEAGUE FOR EFFECTIVE AUTISM
SERVICES, et al., Plaintiffs v.
Helen JONES-KELLEY, et al., Defendants. No. 2:08-CV-421.
June 30, 2008.
Background: Association of parents and families with children who had been diagnosed with autism, and who had been receiving services from statecertified community mental health agency, brought § 1983 action on behalf of its members to prevent amended versions of the Ohio Administrative Code from going into effect that would allegedly have curtailed services that were compensable under Ohio's Medicaid program in violation of federal Medicaid law. Association moved for temporary restraining order (TRO), and defendants asserted that court had to abstain under Burford abstention or primary jurisdiction doctrine.
Holdings: The District Court, James L. Graham, J., held that: (1) lawsuit was not appropriate for Burford abstention or for application of doctrine of primary jurisdiction, even though outcome of lawsuit might impact on state's budget; and (2) association was entitled to temporary restraining order (TRO) to prevent state from implementing administrative regulations which allegedly would result in loss of funding under state Medicaid program for treatment that children were currently receiving through state-certified community health agency.
Motion for abstention denied; motion for TRO granted.
*907 Michelle Francine Atkinson, Susan Gail Tobin, Ohio Legal Rights Service, Columbus, OH, for Plaintiffs.
Ara Mekhjian, Jennifer Anne Adair, Ohio Attorney General's Office, Roger Francis Carroll, Ohio Attorney General, Columbus, OH, for Defendants.

Memorandum Opinion and Order
JAMES L. GRAHAM, District Judge.
This matter comes before the Court on Plaintiffs' Motion for a Temporary Restraining Order (Doc. 3) filed on May 2, 2008, contemporaneously with a complaint for injunctive and declaratory relief. (Doc. 2) FN1. The Court held a hearing on Plaintiff's motion on June 27, 2008. On June 30, 2008, the Court denied the joint motion to dismiss filed by Defendants Helen Jones-Kelley and Sandra Stephenson (State Defendants). Because the Plaintiffs have established a likelihood of success on the underlying allegation that Ohio's proposed administrative rules violate federal Medicaid law, the Court grants Plaintiffs' motion.
FN1. Plaintiffs filed an amended complaint for injunctive and declaratory relief on June 24, 2008 (Doc. 27).
I. Factual Findings
Plaintiffs are Parents League for Effective Autism Services (PLEAS), X.C., a minor and his parent, W.G., a minor and his parent, and K.W., a minor and his parent. Plaintiff PLEAS is an association of parents and families and children, including the three individual plaintiffs, who are children under the age of twenty-one with a diagnosis on the autism spectrum. Plaintiff children represented by PLEAS, as well as the three individual children, receive allegedly medically necessary services, funded by Medicaid, from Step By Step Academy (SBSA). SBSA is a nationally accredited and state certified community mental health agency that provides mental health services to children with autism.
Autism is a “complex neurodevelopmental disability that generally appears during the first three years of life which impacts the normal development of the brain, resulting in impairments of social interaction, verbal and non-verbal communication, leisure and play activities, and learning.” (Complaint at ¶ 53). It is a diagnosis found in the Diagnostic and Statistical Manual of Mental Disorders, 4th Ed., 1994 (DSM IV). See, Declaration of James A. Mulick, Ph.D at ¶ 17. In recent years, research has demonstrated that by *908 providing a child with autism appropriate services and supports, significant gains in most life

areas can be achieved and some children can go on to live and work independently as adults. See Id. at ¶ 11. For an autistic child, “the best treatment plan will include ABA [applied behavioral analysis], the only treatment approach confirmed as effective by a comprehensive evaluation of all proposed therapies in a well known government sponsored review process.” Id. at ¶ 20; see also, Id. at ¶ 21 (ABA therapy is “a highly effective form of behavioral treatment in virtually all cases”). ABA therapy uses a one-on-one teaching approach that relies on reinforced practice of various skills, with the goal of getting the child as close to typical developmental functioning as possible. Id. at ¶ 21. Research has also shown ABA therapy for autistic children is most effective when it is provided 30-40 hours per week in an intensive one-on-one setting. Declaration of Beth Ann Rosner, Ph.D, at ¶ 3. ABA programs are usually conducted under the supervision of a behavioral psychologist. Mulick Decl. at ¶ 25. Intensive behavioral interventions for autistic children “represent the treatment modality that provides the maximum reduction of physical and mental disability to achieve their best possible functional level.” Id. at ¶ 35.
Plaintiff children have been receiving ABA therapy, along with other services, at SBSA. SBSA provides a full-day year round treatment program that offers services to children in one-on-one and small group settings. See, Rosner Decl. at ¶ 3. Treatment offered at SBSA includes the development of language, selfhelp, socialization, gross and fine motor skills, cognition, and early learning skills. Id. Treatment also focuses on decreasing the severity and frequency of behavior problems that interfere with learning and social adoption in autistic children. Id. Children are generally referred to SBSA by licensed health care providers or are evaluated at SBSA by a licensed psychologist. For instance, children evaluated at Nationwide Children's Hospital Developmental Evaluation Program are often referred to SBSA because “SBSA can offer center based behavioral intervention and because they offer a high quality of service.” Mulick Decl. at ¶ 34.
Plaintiffs have also provided evidence indicating that plaintiff children have benefitted from the services received at SBSA. Individual Plaintiff, X.C., is a six year old boy diagnosed with autismdisorder and attention deficit hyperactivity disorder (ADHD). See,

Declaration of A.C. at ¶ 2. X.C. began receiving services at SBSA in January of 2007. Upon enrolling in SBSA, X.C. was in constant motion, any change in routine led to tantrums (crying yelling, screaming and banging his head), he could not be taken out in public due to his unruly behavior, he was withdrawn and did not acknowledge others when spoken to, he ate a very limited diet, and he ate non-food items whenever he could. See, Rosner Decl. at ¶ 16. Due to his behavioral issues, X.C. receives one-to-one sessions in a room separate from other children. A.C. Decl. at ¶ 15. Since attending SBSA, X.C.'s diet has improved, he is able to communicate by tapping his mother's shoulder for attention and using “I want,” “I have,” and “I am not” sentences. A.C. Decl. at ¶¶ 15, 16. X.C has tried placements with other providers with no success. Id. at ¶ 19.
PLEAS member, J.L. is autistic and has attended SBSA since April of 2006. (Plaintiff's Ex. 9). When he started SBSA, J.L. was non-verbal, had little receptive or expressive language, and severely delayed gross motor skills. Id. In addition, J.L. was exhibiting rumination (the regurgitation of previously swallowed food and liquid) at a rate of as much as 600 *909 times per day. After starting services at SBSA, J.L.'s communication skills have increased (although they remain at the one year old level), he now responds to his name, listens to instructions and smiles when smiled at. Id. The most notable improvement has been the reduction in rumination. J.L. now typically ruminates less than five times per day. Id. Other plaintiff children have experienced similar improvement.
Defendant Helen Jones-Kelley is the Director of ODJFS, which is the agency responsible for the administration of the Medicaid program in Ohio. As Director, Jones-Kelley is responsible for ensuring that Ohio's Medicaid program complies with federal Medicaid statutes and regulations. Jones-Kelley is also responsible for ensuring that other state and county agencies and subdivisions which provide services funded by Medicaid comply with applicable federal laws. Defendant Sandra Stephenson is the Director of ODMH. As Director, Stephenson is responsible for adopting standards for services provided by community mental health facilities. ODJFS and ODMH are parties to an interagency agreement to provide behavioral health services to people who are eligible for Ohio Medicaid benefits.

Defendant Kerry Weems, is the Acting Administrator of the Federal Centers for Medicare and Medicaid Services (CMS).FN2
FN2. On June 20, 2008, the Court required joinder of the CMS and Plaintiffs amended their complaint accordingly. Defendant CMS has been notified of the suit against it and was represented by counsel at the TRO hearing on June 27, 2008.
In October of 2005, CMS sent a letter to Barbara Riley, then-Director of ODJFS, concerning Ohio's proposed Medicaid State plan amendments. See, Defendant's Ex. M. The letter indicated that “habilitation services” are not included in the definition of “medical assistance” and therefore, the proposed plan to cover such services under the “rehabilitative” services category could not be approved. The letter does not define “habilitation services.” In August of 2007, CMS filed a proposed rule that would limit the services covered under the “rehabilitative” services category. Congress has placed a moratorium on these and other proposed restrictions on Medicaid Law.
Not long after CMS proposed rules that would curtail coverage of services under Medicaid, ODJFS proposed its own new Administrative Rules. The proposed rules change the definition of “rehabilitative services” and effectively limit the services that can be provided under Medicaid. At present, Ohio's state plan covers certain community mental health services, so long as those services are “rendered by eligible medicaid providers.” Ohio Admin. Code 5101:3-27-02(A). Under this section, mental health services include community psychiatric supportive treatment (CPST) services. See,Ohio Admin. Code 5101:3-27-02(A)(6). The new version of 5101:3-27-02, effective July 1, 2008, is amended to clarify that only “rehabilitative” mental health services will be reimbursed by Medicaid. See,Ohio Admin. Code 5101:3-27-02(A), eff. 7/1/08. “Rehabilitative services” are defined in the amended version as providing for the “maximum reduction of mental illness and are intended to restore an individual to the best possible functional level.” Id. CSPT services will continue to be covered by Medicaid subject to certain limitations. Ohio Admin Code 5101:3-27-02(A)(6), eff. 7/1/08. The changes to the rule reflect a much more narrow definition of

“rehabilitative” than that found in the Federal Medicaid Act, which defines “rehabilitative” as “any medical or remedial services recommended by a physician or other licensed practitioner of the healing *910 arts, within the scope of his practice under State law, for maximum reduction of physical or mental disability and restoration of a recipient to his best possible functional level.” See42 C.F.R. § 440.130(d). The federal regulations do not require that the rehabilitative services reduce “mental illness.”
The second proposed change is to Ohio Admin. Code 5122-29-17, which governs CSPT services. The current version, in effect until July 1, 2008, provides that CSPT services are “an array of services delivered by community based, mobile individuals or multidisciplinary teams of professionals and trained others [that] address the individualized mental health needs of the client.” Ohio Admin. Code 5122-2917(A). Under the version currently in effect, CPST services “should be focused on the individual's ability to succeed in the community; to identify and access needed services; and to show improvement in school, work and family and integration and contributions within the community.” Id. The amended version of Ohio Admin Code 5122-29-17, eff. 7/1/08, specifies that CSPT service is a “rehabilitative service intended to maximize the reduction of symptoms of mental illness in order to restore the individual's functioning to the highest level possible.” The new rule restricts coverage of rehabilitative services to individuals with “mental illness,” thereby effectively excluding other physical and mental disabilities from coverage.
These proposed new administrative rules were apparently in response to Ohio's concern that it was going to lose federal funding for services it was currently providing. Ohio's concern was confirmed in a letter dated March 21, 2008 from CMS. In this letter, CMS informs ODJFS Director Jones-Kelley that CMS “generally views treatment for autism as habilitative rather than rehabilitative-as such, the CPST claims by Step by Step may not comply with Ohio's State Plan.”See, Def. Ex. G. Notably, the March 21, 2008 letter uses the definition of CPST as set forth in the amended version of the Ohio Administrative Code. It is clear to the Court that the State Defendants' decision to change the Administrative Rules was in an effort to avoid having to pay for certain services under its Medicaid plan.

II. Medicaid Overview
Medicaid, authorized by Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq., is a joint federal and state program designed to provide “medical assistance” to needy individuals. Its administration is entrusted to the Secretary of Health and Human Services (HHS), who in turn exercises his authority through the Centers for Medicare and Medicaid Services (CMS). Ark. HHS v. Ahlborn, 547 U.S. 268, 275, 126 S.Ct. 1752, 164 L.Ed.2d 459 (2006). The Medicaid program is subsidized by the federal government, but is administered by the states. Catanzano by Catanzano v. Wing, 103 F.3d 223, 225 (2nd Cir.1996). While participation in the program is voluntary, once a state chooses to participate, it must comply with the requirements of the Medicaid Act and its regulations. Harris v. McRae, 448 U.S. 297, 300, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980)(although participation is optional, once a state elects to participate, it must comply with the requirements of Title XIX); State of Louisiana v. HHS, 905 F.2d 877, 878 (5th Cir.1990)(although states have considerable discretion to design and operate their individual programs, they must maintain their plans in compliance with federal requirements in order to ensure federal funding).
Participating states must submit a “state plan” to CMS for approval before *911 that state may receive Medicaid funds. See42 U.S.C. §§ 1396a(a) & (b); see also, Catanzano, 103 F.3d at 225. The state plan initially must be approved by the Secretary of Health and Human Services. 42 U.S.C. § 1316(a)(1). Thereafter, a state that seeks to change its state plan may submit an amendment to CMS for approval. See42 C.F.R. § 430.14-430.15; La. Dep't of Health & Hosps. v. Ctr. for Medicare & Medicaid Servs., 346 F.3d 571, 572 (5th Cir.2003) (stating that 42 C.F.R. § 430.14-430.15 records the Secretary's delegation of authority for approving state plan amendments to CMS). Ohio has an approved state plan. Ohio Dep't of Mental Retardation & Developmental Disabilities v. U.S. Dep't. of Health and Human Services, Health Care Financing Admin., 761 F.2d, 1187,1188 (6th Cir.1985). Ohio's statutory scheme for the provision of Medicaid is found at Ohio Rev.Code. § 5111.01 et seq. and its regulations found at Ohio Admin. Code Chapter 5101.

Compliance with federal Medicaid law requires a participating state to provide medical assistance to certain classes of people, including disabled children. 42 U.S.C. § 1396a(a)(10)(A). A state plan must provide a range of mandatory medical services to Medicaid recipients. 42 U.S.C. § 1396d(a)(1)-(28) (setting forth the various required services); see also S.D. v. Hood, No. 02-2164 Section “N”, 2002 WL 31741240, 2002 U.S. Dist. LEXIS 23535 (E.D.La. Dec. 5, 2002)(federal law mandates that the states provide a range of medical services). While a state has discretion in determining which medical services, beyond the mandatory seven, it will cover for adults, states “are bound, when it is medically necessary, to make available to Medicaid-eligible children all of the twenty-eight types of care and services included as part of the definition of medical assistance in the Act.” Rosie D. v. Romney, 410 F.Supp.2d 18, 25 (D.Mass., 2006). Moreover, a state may not ignore the Act's requirements “in order to suit state budgetary needs.” Illinois Hospital Asso. v. Illinois Dep't of Public Aid, 576 F.Supp. 360, 371 (N.D.Ill.1983).
Plaintiffs assert that the State of Ohio, in enacting proposed changes to the Ohio Administrative Code sections governing the implementation of Ohio's Medicaid program, have violated federal Medicaid law. Specifically, Plaintiffs challenge the State Defendants' compliance with the Federal “early and periodic, screening, diagnostic, and treatment services” (EPSDT).
EPSDT is a mandatory medical service that must be provided by a State that has chosen to participate in the federal Medicaid program. 42 U.S.C. §§ 1396a (a)(43). EPSDT is defined at 42 U.S.C. § 1396d(r) and includes the following specific services: screening services to determine the existence of certain physical or mental illnesses or conditions (§ 1396d(r)(1)(A)(ii)), vision services (§ 1396d(r)(2)), dental services (§ 1396d(r)(3)), and hearing services (§ 1396d(r)(4)). EPSDT also includes:
such other necessary healthcare, diagnostic services, treatment, and other measures described in section 1905(a) [subsec. (a) of this section] to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the State plan.

42 U.S.C. § 1396d(r)(5); see also42 C.F.R. 441.50 (further state plan requirements for EPSDT). 42 U.S.C. 1396d(a)(1) through (28) provide the necessary services that must be provided to eligible children under the “EPSDT umbrella.” These services include “EPSDT services” ((a)(4)(B)). Of importance to this case is the following mandate, found at subsection (a)(13), which states that a state plan must provide for: *912 other diagnostic, screening, preventative and
rehabilitative services, including any medical or remedial services (provided in a facility, home or other setting) recommended by a physician or other licensed practitioner of the healing arts within the scope of their practice under State law, for the maximum reduction of physical or mental disability and restoration of an individual to the best possible functional level.
This section reflects the extremely broad EPSDT obligation. See Katie A. v. Los Angeles County, 481 F.3d 1150, 1154 (9th Cir.2007) (citing CMS' description of EPSDT as a “comprehensive child health program of prevention and treatment”); Rosie D. v. Romney, 410 F.Supp.2d 18, 25 (D.Mass.2006) (“as broad as the overall Medicaid umbrella is generally, the initiatives aimed at children are far more expansive”). The only limit on EPSDT services is that they be “medically necessary.” Romney, 410 F.Supp.2d at 26; Collins v. Hamilton, 349 F.3d 371, 376 n. 8 (7th Cir.2003)(in the context of individuals under the age of twenty-one subject to EPSDT services, a state's discretion to exclude services deemed ‘medically necessary’ by an EPSDT provider has been circumscribed by the express mandate of the statute).
Ohio's EPSDT plan is referred to as “Healthchek” and is codified at Ohio Admin. Code 5101:3-14-015101:3-14-22. The purpose of Healthchek is to “maintain health by providing early intervention to discover and treat health problems.” Ohio Admin. Code 5101:3-14-01(A). In Ohio, ESPDT services are covered by Medicaid “when the services are medically necessary, as defined in rule 5101:3-1-01 of the Administrative Code, to treat or ameliorate a defect, physical or mental illness, or condition.” Ohio Admin. Code 5101:3-14-05(E). The term “medically necessary” is defined as:

services that are necessary for the diagnosis or treatment of disease, illness, or injury and without which the patient can be expected to suffer prolonged, increased or new morbidity, impairment of function, dysfunction of a body organ or part, or significant pain and discomfort.
Ohio Admin. Code 5101:3-1-01(A). In addition, a medically necessary service must: 1) meet generally accepted standards of medical practice (5101:3-101(A)(1)); 2) be appropriate to the illness or injury for which it is performed as to type of service and expected outcome (5101:3-1-01(A)(2)); 3) be appropriate to the intensity of service and level of setting (5101:3-1-01(A)(3)); 4) provide unique, essential, and appropriate information when used for diagnostic purposes (5101:3-1-01(A)(4; 5) be the lowest cost alternative that effectively addresses and treats the medical problem (5101:3-1-01(A)(5)); and 6) meet general principles regarding reimbursement for medicaid covered services found in rule 5101:3-102 of the Administrative Code (5101:3-1-01(A)(6)).
Ohio's state plan specifically identifies certain services which are covered, however, the fact that a state plan does not mention a particular service does not mean it is not a covered EPSDT service. See42 U.S.C. § 1396d(r)(5) (setting forth EPSDT requirements and specifically stating that services are required, “whether or not such services are covered under the State plan”); see also, Pediatric Specialty Care, Inc. v. Ark. Dep't of Human Servs., 293 F.3d 472, 480 (8th Cir.2002) (the state plan need not specifically list every treatment service conceivably available under the EPSDT mandate).
III. LEGAL STANDARD
[1][2][3][4] Fed. R. Civ. P 65 authorizes the Court to grant a temporary restraining *913 order. When deciding whether to grant preliminary injunctive relief, the Court considers four factors: (1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would otherwise suffer irreparable injury; (3) whether issuance of preliminary injunctive relief would cause substantial harm to others; and (4) whether the public interest would be served by issuance of preliminary injunctive relief. See Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir.2000). A district court must make specific findings concerning each of these factors,

unless analysis of fewer factors is dispositive of the issue. Six Clinics Holding Corp., II v. Cafcomp Systems Inc., 119 F.3d 393, 399 (6th Cir.1997). However, not all the factors need be fully established for a temporary restraining order or injunction to be proper. Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1249 (6th Cir.1997). While none of the factors are given controlling weight, a preliminary injunction should not be issued where there is no likelihood of success [*5] on the merits. Michigan State AFL-CIO, 103 F.3d at 1249.
IV. ANALYSIS
A. Whether the Court must abstain from deciding the Plaintiffs' motion based on either the Burford abstention or the doctrine of primary jurisdiction.
[5] Defendants assert that the must Court refrain from deciding the case pursuant to the Burford abstention and/or the doctrine of primary jurisdiction because the claims in the Complaint challenge Ohio Administrative Rules and state law. Defendants further assert that abstention is proper because resolution of the claims may have budgetary implications.
[6][7] Burford abstention stems from the case of Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424, (1943), in which the Supreme Court held that a federal court sitting in equity may, under certain circumstances, properly decline to exercise its jurisdiction over an action challenging the validity of a state administrative order. New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989) (explaining the holding in Burford ). The Burford doctrine provides that, where timely and adequate state-court review is available, a federal court sitting in equity must decline to interfere with the proceedings or orders of state administrative agencies in two circumstances: 1) when there are difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar; or 2) where the exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern. Adrian Energy Assocs. v. Mich. PSC, 481 F.3d 414, 423 (6th Cir.2007); see also, Value Behavioral Health v. Ohio Dep't of Mental Health,

966 F.Supp. 557, 572 (Burford doctrine “applies if a federal court's assertion of jurisdiction would interfere with a state agency, necessitate the resolution of state law issues, and disrupt state efforts to establish a coherent policy as to a matter of public concern”). In the context of cases involving state administrative schemes, the Burford abstention and primary jurisdiction doctrines “are different labels for the same thing.” College Park Holdings v. Racetrac Petroleum, 239 F.Supp.2d 1322 (N.D.Ga., 2002).
[8] Courts should be reluctant to invoke both the Burford abstention and the doctrine of primary jurisdiction. *914Colorado River Water Conservation District v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 47 L.Ed.2d 483, (1976) (Burford doctrine “represents an extraordinary and narrow exception to the duty of the district court to adjudicate a controversy that is properly before it”); College Park Holdings v. Racetrac Petroleum, 239 F.Supp.2d 1322 (N.D.Ga., 2002) (courts should be reluctant to invoke the doctrine of primary jurisdiction, which often, but not always, results in added expense and delay to the litigants).
[9] Defendants argue that abstention is proper because the case involves “complex state law issues” that relate to Ohio's Medicaid program and because the Court's decision could have significant budgetary implications. The Defendants also assert that if the Court abstains from hearing the case, the Plaintiffs can still obtain the services they need through statelaw mechanisms, including the prior authorization process and the state administrative hearing process. Defendants do not cite any case law in support of their argument that this case justifies invocation of an extraordinary and narrow exception to the court's duty to adjudicate cases. Arguments for Burford abstention have been considered in similar cases and denied.
In Moore v. Meadows, 2007 U.S. Dist. LEXIS 47087 (N.D.Ga 2007), the Plaintiff was a disabled minor receiving skilled nursing care under the Federal EPSDT mandate. She filed a section 1983 action seeking injunctive and declaratory relief that the State Medicaid plan was not in compliance with the federal EPSDT mandate. The Defendant, Georgia Department of Community Health, urged the court to abstain pursuant to Burford on the grounds that the Plaintiffs claims arose from a state regulatory scheme

affecting matters of importance to the administration of Georgia's Medicaid program. Id. at 2007 U.S. Dist. LEXIS 47087, *7. The Court declined to abstain, finding that the claims were not of an essentially local concern, but involved rather “federal funds and federal regulation in an area in which the federal government has taken a keen interest.” Id. (citing Meachem v. Wing, 77 F.Supp.2d 431, 443 (S.D.N.Y.1999)); see also Arkansas Medical Soc., Inc. v. Reynolds, 6 F.3d 519, 529 (8th Cir.1993) (federal Medicaid laws are “routinely interpreted by federal courts and no specialized knowledge of state law is required.”); Meachem, 77 F.Supp.2d at 443 (plaintiffs' claims for various social services, including Medicaid, did not “implicate not a complex state regulatory scheme, but an important federal interest embodied in the Medicaid Act.”).
[10] Furthermore, the fact that the claims may impact the State's budget, does not mandate abstention. Ohio State Pharmaceutical Asso. v. Creasy, 587 F.Supp. 698 (S.D.Ohio 1984) (even though the State may have a substantial interest in the management of its budget, there is no risk of an inconsistent application of state law or policy presented by the case at bar. The regulations which must be interpreted to resolve this matter are federal; the uniformity of application or interpretation of these regulations is a federal concern). Finally, the fact that there is a deferral letter from CMS regarding services at SBSA does not mandate that the Court wait for the administrative process to play out. The primary issue before the Court is whether the State's proposed rules violate Medicaid law. Accordingly, invocation of the Burford abstention or the doctrine of primary jurisdiction is not proper in this case.
B. Civ. R.P. 65
1. Whether the movant has a strong likelihood of success on the merits.
[11] As explained in detail in section II, the federal EPSDT mandate requires a *915 state to provide EPSDT services. 42 U.S.C. § 1396a(a)(43) and § 1396d(a)(4)(B). These services are defined as including screening services, vision services, dental services, hearing services, and
(5) such other necessary health care, diagnostic services, treatment and other measures described in

section 1905(a) [subsec. (a) of this section] to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the State plan.
42. U.S.C. § 1396d(a)(1) through (28) provide the necessary services that must be provided to eligible children. Subsection (a)(13), states that a state plan must provide for: other diagnostic, screening, preventative and
rehabilitative services, including any medical or remedial services (provided in a facility, home or other setting) recommended by a physician or other licensed practitioner of the healing arts within the scope of their practice under State law, for the maximum reduction of physical or mental disability and restoration of an individual to the best possible functional level.
This provision has been interpreted by other courts to mean that if a “licensed clinician finds a particular service to be medically necessary to help a child improve his or her functional level, this service must be paid for by a state's Medicaid plan pursuant to the EPSDT mandate.” Romney, 410 F.Supp.2d at 26; see also, Collins v. Hamilton, 349 F.3d 371, 375 (7th Cir.2003) (if a competent medical service provider determines that specific type of care or service is medically necessary, the state may not substitute a different service); John B. ex rel. L.A. v. Menke, 176 F.Supp.2d 786, 800 (M.D.Tenn.2001) (state is bound by federal law to provide medically necessary services). Plaintiffs assert that section (a)(13), read in conjunction with the ESPDT mandate of (a)(43), as defined in d(r), requires Ohio to cover services rendered at SBSA that are medically necessary.
Defendants do not dispute that by participating in Medicaid, Ohio is required to comply with the federal Medicaid laws. Rather, Defendants assert that they are not allowed to cover the services rendered at SBSA because they are “habilitative” rather than “rehabilitative.” The defendants base their position on the deferral letter from CMS to ODJFS in which CMS states that “CMS generally views treatment for autism as habilitative rather than rehabilitative.” (Def.Ex.G).
[12] The term “rehabilitative services” is defined in the regulations implementing the federal Medicaid

law as:
Rehabilitative services, except as otherwise provided under this subpart, includes any medical or remedial services recommended by a physician or other licensed practitioner of the healing arts, within the scope of his practice under State law, for maximum reduction of physical or mental disability and restoration of a recipient to his best possible functional level.
42 C.F.R. § 440.130(d). Habilitation services are defined in only one section of the Medicaid Act. 42 U.S.C. 1396n(c)(5)(A). This section provides that, for purposes of paragraph (c)(4)(B) (dealing with state waiver programs for the purpose of preventing institutionalization), the term “habilitation services”: means services designed to assist individuals in
acquiring, retaining, and improving the self-help, socialization, and adaptive skills necessary to reside successfully*916 in home and community based settings.
Unlike the definition of “rehabilitative services”, the definition of “habilitation services” does not contain the requirement that the services be “medical or remedial” and “recommended by a physician or other licensed practitioner of the healing arts.” Moreover, habilitative services are not services which are recommended for the “maximum reduction of physical or mental disability and restoration of a recipient to his best possible functional level.” What truly differentiates “habilitative” and “rehabilitative” services is the “medical necessity” of those services. Ohio, Dep't of Mental Retardation & Developmental Disabilities v. U.S. Dept. of Health and Human Services, 761 F.2d 1187 (6th Cir.1985) (“Putting aside the argument over “habilitative” and “rehabilitative,” Ohio must be given an opportunity to demonstrate that the services which it proposes to provide at habilitation centers fall within “medical assistance” as defined in Title XIX.”).
Defendants assert that the CPST services provided at SBSA are not covered by any of the sections listed in (a)(1) through (28), including (a)(13). Plaintiffs argue that the CPST services fit within the meaning of “medical or remedial services” in (a)(13). Defendants counter that the phrase “including any medical or remedial services” modifies only the word “rehabilitative,” thus requiring that covered medical

services under (a)(13) be “rehabilitative.” Defendants then return to their position that the services rendered at SBSA are “habilitative” and therefore not covered by Medicaid, unless rendered pursuant to a waiver. See42 U.S.C § 1396n. Defendant concludes that the services at SBSA are not generally “habilitative” because the services are not “restoring” any skills that the child previously had. Taken to its logical conclusion, such an restrictive interpretation of “rehabilitative” would mean that no child who is born with a disability, could ever receive rehabilitative services. This does not comport with the broad coverage afforded under the EPSDT mandate.
Furthermore, Defendants have cited no authority for their restrictive interpretation that “remedial and medical services” are covered only if they are “rehabilitative.” Though Defendants claim that CMS has adopted this interpretation, they have not cited to any agency action that is entitled to Chevron deference. See, Chevron USA v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); U.S. v. Mead Corp., 533 U.S. 218, 227-231, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001)(discussing the application of Chevron ). Given the expansive requirements of the EPSDT mandate, the Court finds no basis for such a restrictive reading of the statute.
Moreover, section (a)(13) also requires that State's provide “preventive services” which are defined as: services provided by a physician or other licensed practitioner of the healing arts within the scope of his practice under State law to: 1) prevent disease, disability, and other health conditions or their progression; 2) prolong life; and 3) promote physical and mental health and efficiency. Thus, the services provided at SBSA may well be “preventative” as well as “rehabilitative.”
The Court's conclusion that the services required by the EPSDT mandate are more broad than Defendants would suggest, is supported by case law. In Rosie D. v. Romney, 410 F.Supp.2d 18 (D.Mass.2006) the Court found that section d(a)(13) does not contain a requirement that the services be “rehabilitative.” Rather, in that case, the Court found that “if a licensed clinician finds a particular service to be medically necessary to help a child improve*917 his or her functional level, this service must be paid for by a state's Medicaid plan pursuant to the EPSDT

mandate.” The Court used the word “improve” and not “restore” in concluding that the services were necessary. In S.D. v. Hood, 391 F.3d 581 (5th Cir.2004) the Court was also considering the EPSDT provisions of the federal Medicaid law and stated “every Circuit which has examined the scope of the EPSDT program has recognized that states must cover every type of health care or service necessary for EPSDT corrective or ameliorative purposes that is allowable under § 1396d(a).” Again, there is no requirement that the services be “rehabilitative” but only that they ameliorate or correct a condition. In Pediatric Specialty Care Inc.v. Ark. Dept. of Human Services, 443 F.3d 1005 (8th Cir.2006), the Eighth Circuit read 42 U.S.C. 1396d(a)(13) as requiring the State to provide early intervention behavioral treatment to children under the EPSDT mandate. The district court concluded that such treatment was rehabilitative, even though it applied to young children who presumably were not being “restored” to a prior ability.
Plaintiffs provided sufficient evidence that ABA therapy, when recommended by a licensed practitioner of the healing arts, is a medically necessary service which provides the maximum reduction of a mental or physical disability. Because the proposed administrative rules will effectively cut off funding for medically necessary services, Plaintiffs have established a likelihood of success on the merits.
2. Whether Plaintiffs will suffer irreparable injury.
Plaintiffs have also established that if the new rules are made effective, they will suffer irreparable injury. If the Plaintiff children are no longer able to receive the medically recommended 35-40 hours of ABA therapy per week, there is sufficient evidence that the children will experience regression. For children like J.L., whose rumination went from less than five times per day to 34 times per day when his behavior plan was stopped for a mere two days, the injury is significant. See, Plaintiff's Ex. 9; see also, Decl. of A.C. at ¶ 17 (during breaks when X.C. does not receive treatment at SBSA, his behaviors worsen and his skills regress); Decl. of K.G. (during breaks when W.G. does not receive his services at SBSA, he suffers regression). Plaintiffs' provided the opinion of a licensed medical provider who concluded, in her

professional judgment and to a reasonable degree of certainty, that if services are stopped, the Plaintiff children will suffer irreparable injury. See, Rosner Decl. at ¶ 7.
Defendants assert that Plaintiffs will not suffer because if the services provided at SBSA are medically necessary, they may still be covered under other sections of the Medicaid Act. This argument ignores the fact that the services Plaintiff children need are not provided at the same intensive level elsewhere and for some children SBSA may offer the only site where they can receive such services. SBSA is certified as a community mental health provider offering CPST services. The proposed amendments specifically target the provision of CPST services to these children. The fact that the proposed amendments will no doubt affect the provision of services to these children is evidenced by the State's own attempts to find other arrangements for the children once the new rules are made effective. See, Def. Exs. W, Y, Z, and AA.
3. Whether issuance of preliminary injunctive relief would cause substantial harm to others.
[13] The evidence is clear that the State adopted the new rules to avoid having*918 to pay for services which it was concerned would not be reimbursed by CMS. Several of the State's exhibits were financial in nature, showing the cost of services provided at SBSA. In enjoining the State from enforcing the new rules, the Court is concluding that the Plaintiffs have a strong likelihood of establishing that ABA therapy is a medically necessary service that must be covered by Medicaid. Once a state has voluntarily elected to participate in the Medicaid program, it must comply with all federal Medicaid standards. Accordingly, “no state may characterize its duty to comply with the requirements of an elective program such as Medicaid as constituting a hardship to its citizens.” Illinois Hospital Asso. v. Illinois Dep't of Public Aid, 576 F.Supp. 360, 371. If the services are medically necessary, CMS must cover the cost of those services. Thus, by enjoining the State, the Court is not requiring that the State pay for services which will not be reimbursed by CMS. The balance of harm sure to be suffered by the Plaintiffs outweighs and potential harm suffered by the Defendants.
4. Whether the public interest would be served by

issuance of a preliminary injunctive relief.
Congress mandated that the ESPDT services be provided to eligible children in the State of Ohio. Both the federal and state governments recognize that the purpose of EPSDT is to prevent or correct conditions at an earlier time so that the costs are not conveyed into adulthood. Early, and effective, treatment of children with autism has been shown to provide significant improvement, including the return of those children to the general community. See, Mulick Decl. at ¶ 11. The public benefits from the treatment of children with medical conditions. Although the cost of providing care to autistic children appears daunting, the potential that such care will have to be continued throughout adulthood poses a potentially larger economic burden. See, Michelle LeMarche Decl. at ¶ A (studies show a savings of $1,000,000 per child over the child's lifetime by receiving necessary early intervention).
V. CONCLUSION
For the foregoing reasons, the Court GRANTS Plaintiffs' request for injunctive relief. The Defendants are therefore ORDERED to refrain from implementing Ohio Admin Code. 5101:3-27-02 and 5122-29-17. In so ruling, the Court is not deciding that all of the services provided by SBSA are medically necessary nor that the cost of treatment as billed by SBSA is reasonable. Rather, the Court is simply holding that the Plaintiffs have a reasonable chance of being successful in establishing that ABA services are covered by Medicaid and that the amendments to the Ohio Administrative Code violate the federal Medicaid Act.
IT IS SO ORDERED.
S.D.Ohio,2008. Parents League for Effective Autism Services v. Jones-Kelley 565 F.Supp.2d 905, 70 Fed.R.Serv.3d 1487, Med & Med GD (CCH) P 302,458
END OF DOCUMENT

 
 United States District Court, S.D. Ohio,
Eastern Division. PARENTS LEAGUE FOR EFFECTIVE AUTISM
SERVICES, et al., Plaintiffs v.
Helen JONES-KELLEY, et al., Defendants. No. 2:08-cv-421.
July 17, 2008.
Michelle Francine Atkinson, Susan Gail Tobin, Ohio Legal Rights Service, Columbus, OH, for Plaintiffs.
Ara Mekhjian, Roger Francis Carroll, Jennifer Anne Adair, Ohio Attorney General's Office, Mark Thomas D'Alessandro, United States Attorney's Office, Columbus, OH, for Defendants.
OPINION AND ORDER
JAMES L. GRAHAM, District Judge.
I. Introduction
*1 At issue in this case is the State's obligation, as a participant in the federal Medicaid program, to provide a highly effective, medically recognized and physician recommended form of intensive treatment known as Applied Behavioral Analysis (ABA) for children suffering from autism. The State, through its named Defendants Helen Jones-Kelley, Director of Ohio Department of Jobs and Family Services and Sandra Stephenson, Director of Ohio Department of Mental Health (collectively, the State) argues that such services are not required to be covered under Medicaid because the services are “habilitative” rather than “rehabilitative.” After careful study of the relevant statutes and regulations, this Court concluded that this dichotomy has no relevance to medical or remedial services for children when the treatment has been recommended by a physician or other licensed practitioner for the “maximum reduction of a physical or mental disability.”
Having found that new Ohio Administrative Rules, which were to become effective July 1, 2008, were designed to deny ABA services to Ohio children by characterizing them as habilitative, the Court temporarily enjoined the enforcement of those rules

on the grounds that they would effectively deny such children services that they were entitled to receive under the federal Medicaid Act. See, June 30, 2008 Order (hereinafter Order). On July 10, 2008, the State filed a Notice of Appeal from the Order granting the preliminary injunction (doc. 44). The State also filed a motion to stay enforcement of the Order pending the outcome of the appeal (doc. 43).
II. Legal Analysis
A motion to stay an order pending appeal is governed by Fed.R.Civ.P. 62(c). ACLU of Ohio Found., Inc. v. Ashbrook, No. 1:0cv0556, 2002 U.S. Dist. LEXIS 14096, 2002 WL 1558823 (N.D. Ohio, June 14, 2002). In deciding a motion for a stay of an injunction pending appeal, a court considers the following four factors: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987). These factors are not prerequisites that must be met, but are interrelated considerations that must be balanced together. Michigan Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir.1991). Notably, these factors are the same four factors that the Plaintiffs had the burden of establishing in seeking a temporary restraining order and preliminary injunction. See, Leary v. Daeschner, 228 F.3d 729, 236 (6th Cir.2000) (setting forth the four factors to be considered in deciding a motion for preliminary injunction).
A. Whether the State has made a strong showing that they are likely to succeed on the merits.
*2 The State asserts that it is likely to succeed on the merits of the underlying suit because “habilitative” services are not covered by Medicaid. In support of this contention, the State cites to various letters from CMS, a CMS State Medicaid Manual, and a Pennsylvania Departmental Appeals Board decision, all of which indicate that habilitative services are generally not covered by Medicaid. Based on the fact that “habilitative services” are generally not covered by Medicaid, the State concludes that the community psychiatric supportive treatment (CPST) services

provided to Plaintiff children at Step by Step Academy (SBSA) are also not covered by Medicaid. The State's argument, however, presupposes that these CPST services, received by the Plaintiff children at SBSA are “habilitative services.” As set forth in this Court's June 30, 2008 Order, the Plaintiffs have provided sufficient evidence to establish that the CSPT services are not “habilitative” and may be medically necessary to correct or ameliorate a condition suffered by Plaintiff children.
The preliminary injunction ordered by this Court enjoins the enforcement of two proposed Ohio Administrative Rules that this Court has determined were enacted to limit the services that can be provided under Medicaid. Under the current rules, which remain in effect pursuant to this Court's Order, community mental health services are covered so long as they are rendered by “eligible medicaid providers.” Ohio Admin. Code 5101:3-27-02(A). SBSA is currently an eligible medicaid provider of community mental health services, which include CPST services. See,Ohio Admin. Code 5101:3-2702(A)(6). The State's proposed rule, enjoined by this Court, states that only “rehabilitative” mental health services will be reimbursed by Medicaid. See,Ohio Admin. Code 5101:3-27-02(A), eff. 7/1/08. Furthermore, the proposed regulation defines “rehabilitative services” as providing for the “maximum reduction of mental illness and are intended to restore an individual to the best possible functional level.”Id. In the order granting preliminary injunctive relief, this Court concluded that the proposed rule creates a “much more narrow definition of ‘rehabilitative’ than that found in the Federal Medicaid Act, which defines ‘rehabilitative’ as ‘any medical or remedial services recommended by a physician or other licensed practitioner of the healing arts, within the scope of his practice under State law, for maximum reduction of physical or mental disability and restoration of a recipient to his best possible functional level.’ “ See, Pleas, 2008 U.S. Dist. LEXIS 49706 at *9 (citing, 42 C.F.R. § 440.130(d)). Notably, the federal Medicaid law does not limit rehabilitative services to only “mental illness.”
The preliminary injunction also bars enforcement of the propose rule governing CPST services. Ohio Admin. Code 5122-129-17, eff. 7/1/08. Under the rule currently in effect pursuant to the Court's Order,

CPST services should be “focused on the individual's ability to succeed in the community; to identify and access needed services; and to show improvement in school, work and family and integration and contributions within the community.”Id. The current rule provides that CPST services are an “array of services” designed to address “the mental health needs of the client.”Ohio Admin. Code 5122-12917(A). Services under the current CPST rule include “further development of daily living skills” (Ohio Admin. Code 5122-129-17(B)(3)) and “mental health interventions that address symptoms, behaviors, thought processes, etc., that assist an individual in eliminating barriers to seeking or maintaining education and employment.”(Ohio Admin. Code 5122-129-17(B)(9)).
*3 In contrast, the enjoined proposed rule narrowly defines CPST services as a “rehabilitative service intended to maximize the reduction of symptoms of mental illness in order to restore the individual's functioning to the highest level possible.”Ohio Admin. Code 5122-129-17, eff. 7/1/08. Rehabilitative services are only offered to individuals with “mental illness,” thereby effectively excluding other physical and mental disabilities from coverage.
Moreover, the new version's restrictive language may have the effect of denying many children, not just Plaintiff children, access to CPST services. The proposed rule specifically requires that the individual client “take responsibility for managing his/her mental illness.”Ohio Admin. Code 5122-29-17(A). The new provision mandates that the CPST recipient be “an active participant in his/her treatment and care” (Ohio Admin. Code 5122-29-17(B)(2)) and also requires that the CPST service recipient “have the cognitive ability to be able to participate in and benefit from the service.”(Ohio Admin. Code 512229-17(B)(1)). Thus, under this proposed rule, even though CPST services may be medically necessary to “ameliorate or correct” a child's defect, if the child lacks the cognitive ability to participate in her care, she would be denied service under Ohio's proposed rule.
At the hearing on the preliminary injunction, the Plaintiffs established a strong likelihood of success on the merits of the underlying allegation that the proposed rules violate federal Medicaid law. As set forth in detail in the Court's Order, once a state agrees

to participate in the federal Medicaid program, it is obligated to provide coverage for certain services, including early periodic screening and diagnostic treatment (EPSDT).See,42 U.S .C. § 1396a(a)(43) and § 1396d(a)(4)(B). These services are defined as including screening services, vision services, dental services, hearing services, and
(5) such other necessary health care, diagnostic services, treatment and other measures described in section 1905(a) [subsec. (a) of this section] to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the State plan.
42 U.S.C. § 1396d(r)(5).42. U.S.C. § 1396d(a)(1) through (28) provide the necessary services that must be provided to eligible children. The EPSDT mandate is a “comprehensive child health program of prevention and treatment.” Katie A. v. Los Angeles County, 481 F.3d 1150, 1154 (9th Cir.2007); see also, Rosie D. v. Romney, 410 F.Supp.2d 18, 25 (D.Mass.2006) (“as broad as the overall Medicaid umbrella is generally, the initiatives aimed at children are far more expansive”).
One of the necessary services that must be provided to eligible children is found at section 1396d(a)(13), and states that a state plan must provide for:
other diagnostic, screening, preventative and rehabilitative services, including any medical or remedial services (provided in a facility, home or other setting) recommended by a physician or other licensed practitioner of the healing arts within the scope of their practice under State law, for the maximum reduction of physical or mental disability and restoration of an individual to the best possible functional level.
*4 The Plaintiffs have persuasively argued, that this provision requires the State to provide CPST services to the Plaintiff children if the CSPT services are recommended by a physician or other licensed practitioner of the healing arts “for the maximum reduction of physical or mental disability and restoration of an individual to the best possible functional level.”The State, however, has concluded that the CPST services offered at SBSA are not “rehabilitative” and therefore cannot fall within this

subsection of the federal Medicaid Act. In reaching this conclusion, the State circles back to its presupposition that the services provided to Plaintiff children are “habilitative” and therefore cannot be “rehabilitative.” The State cites to 42 U.S.C. § 1396n(c)(5)(A), the only section of the entire Medicaid Act which defines “habilitative services,” and does so within the context of state waiver programs for preventing the institutionalization of the mentally retarded. Under this section, “habilitation services” are: services designed to assist individuals in acquiring,
retaining, and improving the self-help, socialization, and adaptive skills necessary to reside successfully in home and community based settings.
Notably, “habilitative services” are not medical or remedial and, unlike rehabilitative services, are not “recommended by a physician or other licensed practitioner of the healing arts.”Moreover, habilitative services are not designed for the “maximum reduction of physical or mental disability and restoration of a recipient to his best possible functional level.”As this court noted in its order granting the preliminary injunction, what “truly differentiates ‘habilitative’ and ‘rehabilitative’ services is the ‘medical necessity’ of those services.”See, Pleas, 2008 U.S. Dist. LEXIS 49706 at *9 (citing Ohio, Dep't of Mental Retardation & Developmental Disabilities v. U.S. Dept. of Health and Human Services, 761 F.2d 1187 (6th Cir.1985) (“Putting aside the argument over “habilitative” and “rehabilitative,” Ohio must be given an opportunity to demonstrate that the services which it proposes to provide at habilitation centers fall within “medical assistance” as defined in Title XIX.”)).
The State wants to define rehabilitative services so narrowly as to include only services that “restore” a person to a prior level of functioning. The State reaches this conclusion by focusing intensively on the word “restoration.” See,42 U.S.C. § 1396d(a)(13). While, this could arguably make sense in the context of adults (who are not afforded as extensive coverage under Medicaid as children), it makes no sense in the context of children. If the term “restoration of an individual to the best possible functional level” requires that the individual once actually possess the functional level, very few young children could ever receive “rehabilitative services.” Under this

definition, for instance, a child born with a disability that prohibited him from learning to walk could not receive rehabilitative services that would help him to walk, because the service would not “restore” him to a best possible functional level. On the other hand, a child who is injured shortly after learning to walk, would be able to receive rehabilitative services that would help him to walk again (although, under the State's logic, if that child had not yet learned to walk, conceivably he would also be excluded from receiving rehabilitative service). Such a narrow definition of “rehabilitative” simply does not meet with the expansive and remedial nature of the EPSDT mandate and makes no sense as applied to children.
*5 The Court's conclusion that the services required by the EPSDT mandate are more broad than Defendants would suggest, and that the proposed rules may violate that Federal mandate, is supported by case law. In a case that is very relevant to the instant matter, the Eastern District of Louisiana determined that “psychological and behavior management services” for autistic children fell within the services described in 42 U.S.C. § 1396d(a)(13). Chisholm v. Hood, 133 F.Supp.2d 894, 897-898 (E.D.La., 2001)FN1. There was no discussion of the need for the services to meet a narrow definition of “rehabilitative” but rather, the focus was solely on whether the medical service corrected or ameliorated a condition. Id. In Rosie D. v. Romney, 410 F.Supp.2d 18 (D.Mass.2006) the court did not require that a service be “rehabilitative” under section 1396d(a)(13), but rather held that “if a licensed clinician finds a particular service to be medically necessary to help a child improve his or her functional level, this service must be paid for by a state's Medicaid plan pursuant to the EPSDT mandate.”Id. (using the phrase “improve” rather than “restore” in concluding that services were necessary). In Pediatric Specialty Care Inc.v. Ark. Dept. of Human Services, 443 F.3d 1005 (8th Cir.2006), the Eighth Circuit read 42 U.S.C. § 1396d(a)(13) as requiring the State to provide early intervention behavioral treatment to children under the EPSDT mandate. The court concluded that such treatment was rehabilitative, even though it applied to young children who presumably were not being “restored” to a prior ability.
FN1. The Louisiana District Court also noted that the provision of behavioral and

psychological services to children with autism was also covered by 42 U.S.C. § 1396d(a)(6) which mandates EPSDT coverage for “any other type of remedial care recognized under State law, furnished by licensed practitioners within the scope of their practice as defined by State law.”Chisholm, 133 F.Supp.2d at 898.
The Court concludes that the State has not established a strong likelihood of success on the underlying merits of the case.
B. Whether the State will be irreparably injured.
The State asserts that it will be injured if the Court does not stay the injunction because the State may be forced to pay for services rendered at SBSA that the federal CMS will not reimburse. However, the Court has concluded that the Plaintiffs have established a likelihood of success on the merits of the case which would result in the conclusion that the services at SBSA are medically necessary and covered by Medicaid. If in fact, the services are medically necessary, the federal government has to cover the services rendered by the State.
C. Whether the Plaintiffs will be irreparably injured.
In its Order, this Court found that without an injunction prohibiting the enforcement of the new administrative regulations, the Plaintiff children would be irreparably injured. Plaintiffs presented sufficient evidence that the Plaintiff children will suffer regression if they are no longer able to receive the 35-40 hours of ABA therapy per week. See, Plaintiff's TRO Hearing Ex. 9 (When the behavior plan for J.L., the child who ruminates, was stopped for a mere two days, his rumination increased from 5 times per day to 34 times per day); see also, Decl. of A.C. at ¶ 17 (during breaks when X.C. does not receive treatment at SBSA, his behaviors worsen and his skills regress); see, Decl. of K.G. (during breaks when W.G. does not receive his services at SBSA, he suffers regression). Plaintiffs also provided the opinion of a licensed medical provider who concluded, in her professional judgment and to a reasonable degree of certainty, that if services are stopped, the Plaintiff children will suffer irreparable injury. See, Rosner Decl. at ¶ 7.

*6 The State assert that Plaintiffs will not suffer because if the services provided at SBSA are medically necessary, they may still be covered under other sections of the Medicaid Act. For instance, the State argues that the Plaintiffs could apply for a waiver or could seek “pre-authorization” for coverage of the services. This argument ignores the substantial impact that waiting for a waiver of preauthorization would have on these children. The State is well aware of the fact that the proposed rules will specifically hinder what services can be rendered to these children and has in fact taken steps to try to find other arrangements for them once the new rules would be effective, which are not the equivalent of services they were receiving under the current rules. See, State's TRO Hearing Exs. W, Y, Z, and AA.
D. The public interest is not served by a stay of the injunction.
Congress mandated that the EPSDT services be provided to eligible children in the State of Ohio. In making the EPSDT provisions mandatory, Congress recognized the need for making “services available so that young people can receive medical care before health problems become chronic and irreversible damage occur.”See, Stanton v. Bond, 504 F.2d 1246, 1249 (7th Cir.1974) (citing Senate and House Committee reports emphasizing the need for EPSDT services). Early and effective treatment of children with autism has been shown to provide significant improvement, including the return of those children to the general community. See, Mulick Decl. at ¶ 11. The public benefits from the treatment of children with medical conditions. Although the cost of providing care to autistic children appears daunting, the potential that such care will have to be continued throughout adulthood poses a potentially larger economic burden. See, Michelle LeMarche Decl. at ¶ A (studies show a savings of $1,000,000 per child over the child's lifetime by receiving necessary early intervention).
Even if the State's obligation to pay for EPSDT services is broad and expensive, it cannot use this as an excuse to ignore the requirements of the law. The State is obligated to comply with Federal Medicaid law and may not “characterize its duty to comply with the requirements of an elective program such as Medicaid as constituting a hardship to its citizens.”

Illinois Hospital Asso. v. Illinois Dep't of Public Aid, 576 F.Supp. 360, 371 (N.D.Ill.1983).
III. CONCLUSION
For the reasons set forth herein, and as stated in this Court's June 30, 2008 Order, the State's motion for stay (doc. 43) is DENIED.
IT IS SO ORDERED.
S.D.Ohio,2008. Parents League for Effective Autism Services v. Jones-Kelley Slip Copy, 2008 WL 2796744 (S.D.Ohio)
END OF DOCUMENT

 
 IN THE UNITED STATES DISTRICT COUItfj HAY -2 au II- 4

FOR THE SOUTHERN DISTRICT OF OHIO I

9 Iln -

EASTERN DIVISION

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PARENTS' LEAGUE FOR EFFECTI"VE AUTISM SERVICES (PLEAS)
AND
X.C., a minor, by and through his parent, A.C,;
AND
W.G., a minor, by and through his parent K.G.;
AND
K.W., a minor by and through his parent A.W.,

t () Case No. ~ 8 t'f 4 2 1

Judge: JUDGE GRAlL!';",

Magistrate

Judge:

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COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

Plaintiffs,
vs.
Helen Jones-Kelley, in her official capacity as Director of the Ohio Department of Job and Family Services and
Sandra Stephenson, in her official capacity as Director of the Ohio Department of Mental Health,
Defendants.

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF INTRODUCTION
Plaintiffs are made up of an association of parents and families as well as individual parents and their children who have a diagnosis of a developmental disability on the autism spectrum. Plaintiff children are Medicaid eligible. They currently receive medically necessary services funded through Medicaid from Step By Step Academy (SBSA) in Worthington, Ohio. Defendants have promulgated rules that govern the Medicaid program in Ohio. These rules limit the services to be paid for by Medicaid in violation offederal law. As a result, providers authorized by the state to deliver intensive behavioral health services to ehildren will lack the authority, capacity and funds necessary to provide ongoing, intensive community based services to the Plaintiff children. Plaintiffs seek injunctive and declaratory relief to prevent the loss or reduction of medically necessary services to which they are entitled under federal law.
JURISDICTION MTI VENUE L This Court has jurisdiction pursuant to 28 U.S.c. § 133 I which provides for original
jurisdiction over civil suits arising under the Constitution, laws or treatises of the United States and against Defendants acting under color of state law pursuant to 42 U.S.c. § 1983. 2. This Court also has jurisdiction under 28 U.S.C. §§ 1343(3) and (4) which provide for original jurisdiction of the Court in all suits authorized by 42 U.S.c. § 1983. Plaintiffs seek to enforce the rights guaranteed them under the United States Constitution and the federal Medicaid laws, 42 U.S.c. §1396 et seq. and the implementing federal regulations.
2

3. In addition, this Court has jurisdiction over the Plaintiffs' claims for declaratory relief pursuant to 28 U.S.c. §§ 2201 and 2202 and Rule 57 of the Federal Rules of Civil Procedure.
4. Venue is proper in the Southern District of Ohio, Eastern Division, because the defendants are located in this district within the meaning of28 U.S.c. § 1391(b) and because the events, acts and omissions giving rise to the Plaintiffs' claims occurred in this district.
PARTIES PLAINTIFFS 5. Plaintiff Parents' League for Effective Autism Services (PLEAS) is an association of parents and families and children who re.ceive services from Step By Step Academy tmder Medicaid. Membership of PLEAS includes both named Plaintiffs and other parents, families and children not individually named in this complaint. 6. Plaintiff PLEAS children face losing or having a severe reduction of medically necessary services when the rules promulgated by Defendants become effective on July 1,2008. 7. Without these services, PLEAS children are at risk of a regression in skills and an increase in unwanted behaviors. Further, PLEAS children will have an increased chance of being placed in a segregated special education elassroom or institution. 8. PLEAS parents face loss of funding for these medically necessary services when Defendants' rules become effective. PLEAS parents and families \vill not be able to afford these necessary services for their children. 9. Plaintiff A.C. is the parent and natural guardian of Plaintiff X.c.
3

10. PlaintiffX.C. is a six year old boy who was diagnosed with autism spectrum disorder at eighteen months old.
11. X.C. and his parent A.C. live in Logan, Ohio. 12. X.C. is Medicaid eligible. He receives community mental health services through
Medicaid from Step By Step Academy in Worthington, Ohio.
13. x.c. receives 35-40 hours per week of one-Io-one intensive behavioral services year
round from SBSA to correct and ameliorate his autism. 14. These services are medically necessary for X.C. 15. He is at risk oflosing or having a severe reduction ofthese medically necessary services
after June 30, 2008 when the rules promulgated by Defendants are scheduled to become effective. 16. Without these services, X.C. faces a regression in skills and an increase in aggressive and dangerous behaviors. Additionally, X.C. will have an increased chance of being placed in a segregated special education classroom or institution. 17. PlaintiffK.G. is the parent and natural guardian ofPlaintiffW.G. 18. PlaintiffW.G. is a six year old boy who was diagnosed with autism spectrum disorder at age two. 19. W.G. and his parent K.G. live in Westerville, Ohio. 20. W.G. is Medicaid eligible. He receives community mental health services through Medicaid from Step By Step Academy in Worthington, Ohio. 21. W.G. receives 35-40 hours per week of one-to-one intensive behavioral services year round from SBSA to correct and ameliorate his autism. 22. These services are medically necessary for W.G.
4

23. He is at risk of losing or having a severe reduction in these medically necessary services after June 30, 2008 when the rules promulgated by Defendants are scheduled to become effective.
24. Without these services, W.G. faces a regression in skills and an increase in dangerous behaviors. Additionally, W.G. will have an increased chance of being placed in a segregated special education classroom or institution.
25. Plaintiff A.W. is the parent and natural guardian of Plaintiff K.W. 26. PlaintiffK.W. is a seven year old boy who was diagnosed with autism spectrum disorder
at age two. 27. K.W. and his parent A.W. live in Westerville, Ohio. 28. K.W. is Medicaid eligible. He receives community mental health services through
Medicaid from Step By Step Academy in Worthington, Ohio. 29. K. W. receives 35-40 hours per week of one-to-one intensive behavioral services year
round from SBSA to correct and ameliorate his autism. 30. 'These services are medically necessary for K.W. 31. He is at risk of losing or having a severe reduction in these medically necessary services
after June 30, 2008 when the rules promulgated by Defendants are scheduled to become effective. 32. Without these services, W.G. faces a regression in skills and an increase in dangerous behaviors. Additionally, W.G. will have an increased chance ofbelng placed in a segregated special education classroom or institution.
5

DEFR.'IDANTS 33. Defendant Helen Jones-Kelley, as director of Ohio Department of Job and Family
Services (ODJFS), is responsible for the administration of the Medicaid program in Ohio. 34. ODIFS is the single state agency for the Medicaid program in the State of Ohio and is
required,pursuanttoO.R.C. § 5111.01 andO.A.C. § 5101:1-37-01, toprovidemedieal assistance in accordance with the federal Medicaid statute, Title XIX of the Social Security Act, 79 Stat. 286 (1965). 35. As the executive head of ODJFS under O.R.C. § 5101.02, Defendant Jones-Kelley is responsible for the supervision and operation of the Medicaid program in Ohio in accordance with the applicable federal Medicaid statutes and regulations. 36. Defendant Jones-Kelley is also responsible for ensuring that other state and county agencies and subdivisions with whom ODJFS contracts to administer the Medicaid program comply with all applicable Medicaid laws and policies pursuant to O.R.C. § 5111.01. 37. Defendant Jones-Kelley has acted and continues to act at all times relevant hereto in her official capacity and under color of state law. 38. Defendant Sandra Stephenson is the Director of Ohio Department of Mentai Health (ODHM). 39. As chief executive and administrative officer of ODMH under O.R.C. § 5119.01, Defendant Stephenson is responsible for adopting rules that establish standards for services provided by community mental health facilities. Defendant Stephenson has the authority to enter into contracts and other agreements.
6

40, As directors, Defendant Jones-Kelley and Defendant Stephenson entered into an interagency agreement between ODJFS and ODMH for the purpose of establishing a subrecipient relationship between the entities to implement 42 C.F.R. § 431 Part M and to provide behavioral health services to people who are eligible for Ohio Medicaid benefits under Title XIX ofthe Social Security Act, Interagency Agreement Between ODJFS and ODMII, Article I, Section A.
41. ODMH is considered the sub-recipient of the federal funds received from ODJI'S, and mental health service providers are considered sub-recipients of the funds received from ODMH.
42, ODJFS, in consultation with ODMH, promulgates the Ohio Administrative Code rules that govern the Medicaid program.
43, Defendant Stephenson has acted and continues to act at all times relevant hereto in her official capacity and under color of state law.
FACTS 44. Title XIX of the Social Security Act, 79 Stat. 286 (1965), ("the Medicaid Act"), at 42
U.S.C. Sections 1396 et seq., was enacted as ajoint obligation by the federal government and participating states to provide medical assistance to low income and needy individuals who would otherwise be unable to pay for necessary health care. States are not required to participate, but oncc a state elects to participate in the program, it is bound by the federal law and regulations set forth in the Social Security Act and its implementing regUlations. 45. Title XIX of the Social Security Act lists twenty-seven services to be provided 10 individuals who meet the qualifications listed in 42 U.S.c. § 1396d(a)(i)-(xiii).
7

46.42 U.S.C. § 1396a(a)(43) requires participating states to include in their State Medicaid Plan a provision for the Early, Periodic Screening, Diagnosis and Treatment (EPSDT) of all Medicaid eligible children under the age of twenty-one.
47. The federal requirements for EPSDT are specifically detailed and require states to provide "such other necessary health care, diagnostic services, treatment, and other
measures to correct or to ameliorate defects and physical and mental illnesses and
conditions discovered by the screening services, whether or not sueh services are covered under the State plan." 42 U.S.e. § 1396d(r)(5). 48. The State of Ohio participates in the Federal Medicaid program, including the EPSDT provIsIons. 49. Ohio's EPSDT program is operated under the name "Healthchek" and is codified at OAe. §§ 5101:3-14-01 to 5101:3-14-22. 50. Plaintiff children are Medicaid eligible individuals under age twenty-one who are eligible for EPSDT services set forth under the federal Medicaid Act, 42 U.S.C. § 1396a(a)(43) and 42 U.S.C. § 1396d(r) and Ohio's Healthchek Program set forth at OAe. §§ 5101:314-01 through 5101:3-14-22. 5L Plaintiffchildren have all becn diagnosed with a developmental disability on the autism spectrum. 52. Autism is now seen as a spectrum disorder, "Autism Spectrum Disorder" (ASD). Autistic disorder, the full-blown condition, is one of five disorders falling under the umbrella of "Pervasive Developmental Disorder" (PDD), a category ofneurodevelopmental disorders. POD includes the disorders commonly diagnosed as Asperger's Disorder, Rett
8

Syndrome, Childhood Disintegrative Disorder, and PDD - Not Otherwise Specified (PDD-NOS). 53. Autism is a complex neurodevelopmental disability that generally appears during the first three years oflife. It impacts the normal development of the brain, resulting in impairments of social interaction, verbal and non-verbal and communication, leisure or play activities, and learning. Most often if untreated it results in lifelong mental retardation. 54. Plaintiff children receive medically necessary services, such as community mental health services, from Step By Step Academy (SBSA) located in Worthington, Ohio under Ohio's Medicaid program. 55. SBSA is a nationally accredited and state certified community mental health agency dedicated to providing mental health services to children with autism. 56. Services provided by SBSA include full day center-based applied behavior analysis (ABA), psychological assessments and diagnosis, parent advocacy and resource information and home outreach services including one-to-one services. 57. Plaintiffchildren benefit from receiving these medically necessary services from SBSA. Benefits include increased lQ levels, reduction in developmental disabilities, decrease in behavioral outbursts, increase in on-task behaviors, decrease in self-stimulation behaviors, increased communication skills, increased daily living skills such as toileting. dressing, food preparation, and a decreased chance of being placed in segregated special education classrooms or institutional settings. 58. The services provided by SBSA result in maximum reduction of physical and mental disabilities and restoration to the best possible functional level.
9

59. The services provided by SBSA to Plaintiff children are rehabilitative in nature.
60. The services provided by SBSA are recommended as a medical necessity for Plaintiff children by their physicians and / or other licensed practitioners.
61. In the past, Plaintiff children unsuccessfully tried to get these medically necessary services from other providers.
62. PlaintiffX.C. was told by several service providers thai these were not appropriate placements for him and that he should not return due to his severely dangerous and aggressive behaviors.
63. PlaintiffK.W. was in a classroom in the Worthington City School District. IfK.W. was being quiet and not acting out, he was left alone. There was not any interaction between K.W. and his teacher or other children.
64. Intensive behavioral intervention is a rehabilitative service with both medical and remedial components under 42 U.S.C. § 1396d(a)(13).
65. The Medicaid Act gives Plaintiff children an enforceable right to intensive behavioral intervention services.
66. Defendants promulgated rules, O.A.C. §§ 5101 :3-27-02 and 5122-29-17, to be effective July 1, 2008.
67. O.A-C. § 5101:3-27-02 (eff. 7/1108) list services that are required to be rehabilitative in nature in order to be reimbursable under the State Medicaid plan as community mental health services.
68. Community psychiatric supportive treatment (CPST) service is listed as a community mental health service under O.A.C. § 5101:3-27-02 (eff 7/1108).
10

69. O.A.C. § 5101:3-27-02(A) (eff. 7/1108) states that H[r]ehabilitative services provide for the maximum reduction of mental illness and are intended to restore an individual to the best possible functional level."
70. OAC. § 5122-29-17 (eff. 7/1108) defines CPST service as a rehabilitative service. 71. Defendants' rules narrow the definition and eligibility for CPST services by creating an
overly restrictive definition of 'rehabilitative' in violation of federal Medicaid provisions. 72. Defendants' rules limit 'rehabilitative' services to individuals with "mental illness." This
definition is more restrictive than the federal regulations because it excludes other physical and mental disabilities. 73. Plaintiff children will face a reduction or total loss of the services provided to them by SBSA in violation of 42 U.S.c. §§ 1396a, 1396d(a) and 1396d(r)(5). 74. Plaintiffs have not found nor has the State offered services from an alternative provider. 75. Defendants' rules are contrary to the State's obligation to provide medieally necessary services to children that correct or ameliorate conditions under the federal Medicaid requirements of EPSDT.
CLAIM FOR RELIEF FIRST CAUSE OF ACTION 76. Plaintiffs restate and incorporate by reference paragraphs 1 through 75 as if fully rewritten herein. 77.42 U.S.C. § 1396d(r)(5), requires that Plaintiff children shall be provided "such other necessary health care, diagnostic services, treatment, and other measures ... to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the State plan."
11

78. Defendants' rules limit the State plan by requiring that services are rehabilitative in nature. OAC. §§ 5101:3-27-02(A) and 5122-29-17(A)(eff. 711108).
79. Defendants' rules also limit the State plan by restricting the meaning of rehabilitative to services for mental illnesses only. OAC. §§ 5101 :3-27-02(A) and 5122-29-l7(A)(eff. 711108).
80. Defendants' rules ignore the "correct or ameliorate defects and physical and mental illnesses and conditions" language in the EPSDT provision of the Medicaid Act and instead require that services 'restore' an individual to the best or highest possible functional level. OAC. §§ 5101:3-27-02(A) and 5122-29-17(A)(eff. 7/1108).
8L Defendants have an obligation to provide medical assistance as defined in 42 US.c. § 1396d(a) to Plaintiff children regardless ofwhat services are provided for in the State plan.
82. As a result of Defendants' violation, Plaintiff children will suffer a loss or reduction in medically necessary services provided to them under Medicaid.
83. Plaintiffs bring this action under 42 U.S.c. § 1983 because Defendants, acting under color of law, are depriveing Plaintiffs of their rights under the laws of the United States by promulgating rules which reduce services that are guaranteed to children under the EPSDT provisions in accordance with thc federal Medicaid Act and implementing regulations. SECOl\;TI CAUSE OF ACTION
84. Plaintiffs restate and incorporate by reference paragraphs 1 through 83 as if fully rewritten herein.
12

85, 42 U,S,C, § 1396d(a) list services that are required to be provided to Plaintiff children because they are under the age oftwenty-one.
86, Services that are required to be provided to Plaintiff children include those listed in 42 U.S.c. §§ 1396d(a)(4)(B), 1396d(a)(6) and 1396(d)(a)(13),
87. Specifically, 42 U.S,c. § 1396d(a)(13) provides that "other diagnostic, screening, preventive, and rehabilitative services, ineluding any medical or remedial serviees recommended by a physician or other licensed practitioner of the healing arts within the scope oftheir practice under State law, for the maximum reduction of physical or mental disability and restoration of an individual to the best possible functionalleve1" shall be covered as medical assistance under Medicaid, (Emphasis added),
88, Defendants' rules restrict the community mental health services that Plaintiff children can receive by restricting services to those that are rehabilitative in nature and by limiting rehabilitative services to those that restore functioning, instead of including those that are 'remedial' oreorreetive, O.A,C, §§ 5101:3-27-02(A) and 5122-29-17(A)(eff. 7/1108),
89. The federal regulation, 42 C.F.R. § 440.130(d) defines rehabilitative services as "any medical or remedial service recommended by a physician or other licensed practitioner of the healing arts, within the scope of his practice under State law, for maximum reduction of physical or mental disabi lity," (Emphasis added).
90. Defendants' definition ofrehabilitative is much narrow than the federal definition. Defimdants' defmition requires that the recipient ofthe services have a "mental illness", O.A.C. §§ 5101:3-27-02(A) and 5122-29-17(A)(eff. 7/1/08),
13

91. Defendants' rules violate 42 C.F.R. § 440.l30(d) by limiting the scope of rehabilitative serviees to those that reduce "mental illness" and ignoring other physieal and mental disabilities. OAC, §§ 5101:3-27-02(A) and 5122-29-17(A)(eff. 7/1108).
92. As a result of Defendants' violation, Plaintiff children will suffer a loss or reduction in medically necessary community mental health services currently provided to them under Medicaid.
93. Plaintiffs bring this action under 42 U.S.C. § 1983 because Defendants, acting under color of law, deprived Plaintiffs oftheir rights under the laws of the United States by promulgating rules which reduce services that are guaranteed to children under the EPSDT provisions in accordance with the fe.deral Me.dicaid Act and implementing regulations. REQUEST FQR RELIEF
Plaintiffs respectfully request that this Court grant the following relief: A. Order Defendants to continue to provide and I or arrange for medically necessary services, including 35-40 hours per week of applied behavior analysis, for Plaintiffs as determined by their physicians or other licensed practitioners; B. Immediately enjoin Defendants from enforcing their proposed rules, O.A.c' §§ 5101:327-02 and 5122-29-17, that fail to comply with the requirements of federal Medicaid law which require services to be provided to Plaintiffs; C. Declare that Defendants' rules violate Plaintiffs' rights under the federal Medicaid law by as alleged in this Complaint, and by requiring that c.ommunity mental health services be rehabilitative and limiting the types of services and defInition of rehabilitative to reducing symptoms ofmental illness;
14

D. Declare the Defendants' rules violate Plaintiffs' rights under federal Medicaid law because the rules do not allow medically necessary services to be provided that correct or ameliorate defects and physical and mental illnesses and conditions;
E. Require Defendants to develop rules that comply with federal Medicaid law; F. Grant Plaintiffs' recovery of reasonable attorney's fees and costs in bringing this action; G. Grant Plaintiffs any and all other relief to which the Court believes they are entitled.
Respectfully submitted,
ffV';,\ {2HJlJe! LtlfJ {Ji!\'IJ\_-----,-:-=-:--::--::-
Michelle F. Atkinson, Trial Attorney (0079185) matkinson@olrs.slate.oh.us
Susan G. Tobin, Of Counsel (0021725) stobin@olrs.l!tate.oh.us Ohio Legal Rights Service 50 West Broad Street, Suite 1400 Columbus, Ohio 43215 (614) 466-7264 (614) 644-1888 (fax) Counsel for Plaintiffs
15

 
 IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHI~B p' y _2 A'" II' 50

EASTERN DIVISION

II'.

n·

PARENTS' LEAGUE FOR EFFECTIVE AUTISM SERVICES (PLEAS), et al.,
Plaintiffs,
VS.

Judge: JUDGE GR.ABAM
Magistrate Judge: MAG1STRA1'E JUD(sE lONG

Helen Jones-Kelley, et aI.,

Defeudants.

PLAINTIFFS' MOTION FOR TEMPORARY RESTRAINING ORDER Federal Medicaid law entitIes eligible children in Ohio to receive medically necessary treatment, including mental health and behavioral therapies. Children who are eligible for Medicaid are entitled to any federally authorized Medicaid service, whether or not those services are included in the State's Medicaid plan. 42 U.S.c. § 1396(d)(r)(5). Under the federal Early and Periodic Screening, Diagnosis and Treatment (EPSDT) mandate, all states must furnish appropriate medically necessary treatment to correct or ameliorate defects and physical and mental illnesses and conditions. 42 U.S.C. § 1396d(r)(5). Medicaid-eligible individuals under the age of21 who are screened and diagnosed with physical, behavioral, emotional or psychiatric disabilities must receive medically necessary preventive, corrective and rehabilitative treatment. Plaintiffs are made up of parents and families and children. Plaintiff children are Medicaid eligible and have been diagnosed with a developmental disability on the autism spectrum. Plaintiff children currently receive medically necessary community mental health services from Step By Step Academy (SBSA) under Ohio's Medicaid program. Plaintiffs have not found any other provider that offers a program of similar scope, duration and intensity to that

offered by SBSA. Defendants have promulgated rules, effective July 1, 2008, which govern the Medicaid program in Ohio and will change the provisions related to community mental health services, O.A.C. §§ 5101:3-27-02 and 5122-29-17. The changes will reduce the services that are currently provided to Plaintiff children. Once these rules are effective, Plaintiff children will be denied medically necessary services in violation of the federal EPSDT mandate.
Pursuant to Rule 65(b) of the Federal Rules of Civil Procedure and S.D. Ohio Civ. R. 65.1, Plaintiffs through undersigned counsel respectfully move this Court for a temporary restraining order enjoining Defendants from enforcing their proposed rules and from restricting the services provided under Medicaid based on Defendants' limited definition of 'rehabilitative' services. Counsel acknowledges that the Court ordinarily does not grant motions for a temporary restraining order until after the Court holds a preliminary conference with the parties; therefore, plaintiffs request, in the alternative, that the Court schedule a preliminary conference with the parties pursuant to S.D. Ohio Civ. R. 65.1.
Plaintiffs will suffer immediate and irreparable harm if a temporary restraining order is not granted because they will be denied necessary services, most likely suffer a decline in progress and an increase in unwanted behaviors and face unnecessary institutionalization.
In support of this Motion, Plaintiffs rely upon their Memorandum in Support of Plaintiffs' Motion for a Temporary Restraining Order and the attached declarations which are attached to and made part of this Motion.
Respectfully submitted,
Michelle F. Atkinson, Trial Attorney (0079185) matkinson(llloIrs. state.oh.us
2

Jl~~J/~~
Susan G. Tobin, Of Counsel (0021725)
stobinlfuolrs.~Jate.oh.us
Ohio Legal Rights Service 50 West Broad Street, Suite 1400 Columbus, Ohio 43215 (614) 466·7264 (614) 644·1888 fax Counsel for Plaintiffs
PLAINTIFFS' MEMORANDUM IN SUPPORT 01<' MOTION FOR TEMPORARY RESTRAINING ORDER
I. Background and Facts Plaintiff children are all Medicaid eligible and are under the age of twenty-one. Plaintiff
children have all been diagnosed with a developmental disability on the autism spectrum. Autism is a medical disorder characterized by an inability to interact socially, repetitive behavior and
language dysfunction. Hummel v. ODJFS, 164 Ohio App. 3d 776 (Ohio ct. App. 2005). It is a
complex neurodevelopmental disability that generally appears during the first three years oflife which impacts the normal development of the brain, resulting in impairments of social interaction, verbal and non-verbal and communication, leisure or play activities, learning and most often if untreated results in lifelong mental retardation. (Ex. I, Mulick Decl. '!r 7). Autism is now seen as a spectrum disorder, "Autism Spectrum Disorder" (ASD). (Ex. 1, MuIiek Dec!. .. 9). Autistic disorder, the full-blown condition, is one of five disorders falling under the umbrella of "Pervasive Developmental Disorder" (PDD). (Ex. I, Mulick Dec!. ~ 9). PDD also includes the disorders commonly diagnosed as Asperger's Disorder, Ret! Syndrome, Childhood Disintegrative Disorder and PDD-Not Otherwise Specified (PDD-NOS). (Ex. 1, Mulick Dec!. ~
3

9). It is estimated that nearly thirty children who will be diagnosed with some fonn of autism spectrum disorder are born every year in Franklin County, Ohio. (Ex. I, Mulick DecL , 12).
Previously, parents of children with autism were encouraged to place their child into institutional care to spare the family the stress and heartache of attempting to raise tbeir child. (Ex. I, Mulick Dec!. ~ 10). Research demonstrates that by providing the child with autism appropriate services and supports at appropriate developmental levels, significant gains in most life areas can be achieved. (Ex. 1, Mulick Dec!. , 11). Research also shows that almost half of the children that receive applied behavior analysis (ABA) treatment will become "indistinguishable among their peers" and can be mainstreamed back into the regular school environment and that children maintain these outcomes post therapy and into their teens. (Ex. 8, LaMarche Dec!. , A). ABA uses a one-on-one teaching technique that relies on reinforced practice of various skills. (Ex. 1, Mulick Dec!. '21). Children with autism need a highly structured, consistent environment that is rich in planned reinforcement of targeted skills and behaviors. (Ex. 5, Christiansen Dec!. , 11). ABA is highly effective form of behavioral treatment in virtually all cases of autism. (Ex. I, Mulick Dec!., 21).
Plaintiff children receive medically necessary services at Step by Step Academy (SBSA) located in Worthington, Ohio under Ohio's Medicaid program. SBSA is a nationally accredited and state certified community mental health agency dedicated to providing mental health services to children with autism. Services provided by SBSA include: full day, year round, center-based ABA, psychological assessments and diagnosis, parent advocacy and resource infonnation, home outreach services including I: I and lead trainer services, school transition and consultation services and parent and professional trainings. By receiving these services from SBSA, Plaintiffchildren have experienced a reduction in their developmental disabilities and
4

restoration toward their best possible functional level. (Ex. 5, Christiansen Dec1. 'lI13; Ex. 9, Rosner Dec\.). Plaintiffs have not found any other provider which offers services of similar scope, duration and intensity. (Ex. 2, A.C. Dec\. 'lI22; Ex. 3, K.G. 'lI16; Ex. 4, A.W. Dec!. 'lI21).
PlaintiffParents' League for Effective Autism Services (PLEAS) is an association of parents and families and children who receive services from SBSA under Medicaid. Membership of PLEAS includes both named Plaintiffs and other parents, families and children not individually named in this complaint.
If PlaintiffPLEAS children do not receive intensive, one-to-one or small group ABA based intervention program they will likely regress and withdraw further into their world of autism by resorting to their earlier patterns of maladaptive, stereotyped behaviors. (Ex. 5,
'1 Christiansen Dee!. 7-8; Ex. 9, Rosner Dec!.). PLEAS children will most likely have a difficult
time acquiring new skills with the absence of one-to-one, ABA based intervention. (Ex. 5, Christiansen Dec!. 'lI9; Ex. 9, Rosner Dec!.). PLEAS children will suffer an increase in inappropriate or dangerous behaviors which could result in injury to themselves or others. (Ex. 5, Christiansen Dec!. 'lI8; Ex. 9, Rosner Dec!.). lfthe court does not grant their request for a TRO, Plaintiff PLEAS parents and families face a loss or reduction in funding of these services and will be unable to afford these medically necessary services for their children. Individually named children face similar harm.
PlaintiffX.C. is a six year old boy who was first diagnosed with autism at eighteen
months old. (Ex. 2, A.C. Dec!. 1 2). X.c. lives in Logan, Ohio. (Ex. 2, A.C. Decl. 1 2). He
receives 35-40 hours per week of one-to-one intensive behavioral therapy from SBSA. (Ex. 2,
A.C. Decl. 'f: 4). Socially, x.c. was withdrawn and did not acknowledge others when they talked
to him and he avoided peers. (Ex. 9, Rosner Dec!.). X.C. has a history ofinattention, tantrums
5

and dangerous behaviors. (Ex. 2, A C. Dec!' .- 9). He continues to be impulsive, aggressive, stubborn and have tantrums. (Ex. 2, A.C. Dec!' '\19). During tantrums, X.C. typically screams, kicks, throws objects, bangs his head on the floor and rips blankets with his leeth. (Ex. 2, AC. Dec!. '\113).
Since receiving services from SBSA, X.C. has made progress in cognitive and adaptive behavior goals and has reduced tantrums, aggression and elopement. (Ex. 9, Rosner Decl.). X,C.'s communication skills have greatly improved, (Ex. 2, AC. Dec!' ~ 16). XC, now uses his mother's name or taps his mother's shoulder to get her attention. (Ex, 2, A.C. Dec!. '\116). When X.C, is not receiving services from SBSA his behaviors worsen, tantrums become more frequent and he regresses in skills. (Ex, 2, AC, Dec!. 'l1'li17-18), SBSA's center-based program is necessary for X.C. because other service providers have stated that they are not appropriate due to X.C.'s severe behaviors. (Ex, 2, A.C. Dec!. '\1'\119, 21). X.C. requires the structure of an intensive behavioral program in order to leam new skills and keep unsafe behaviors at a manageable leve!. (Ex. 9, Rosner Dec!.).
PlaintiffW.G, is a six year old boy who was first diagnosed with autism at two years old, (Ex. 3, KG. Dec!. '\12). W.G. lives in Westerville, Ohio. (Ex. 3, K.G. Dec!. '\12). He receives 3540 hours per week of one-to-one intensive behavioral therapy from SBSA. (Ex. 3, KG. Decl. '\I 4). W.G. is not afraid of anything, is unaware ofpotential dangers and has a tendency to wander away. (Ex. 3, KG. Dec!. '\17). Ifleft unattended, W.G. eats non-food items including soap, lotion, play-dough and paint. (Ex. 3, KG. Dec!. ~ 9). W.G. has many repetitive behaviors including finger flicking, clapping, tapping objects and jumping. (Ex. 3, K.G. Decl. '\Ill).
W.G. has severe delays in expressive and receptive language. (Ex. 3, K.G. Dec!. '\16), Since receiving services from SBSA, W,G. has made progress in his prompted language. (Ex, 3,
6

K.G. Dec!. '116). When W.G. is not receiving services from SBSA, his behavior regresses and he has a difficult time focusing. (Ex. 3, KG. Dec!. '1112). W.G. will not receive the services he needs in another setting because other settings do not offer the intensity, structure, supervision and individualized services. (Ex. 3, K.G. Dec!. '11'1114-15).
PlaintiffK.W. is a seven year old boy who was first diagnosed with autism at two years
n old. KW.lives in Westerville, Ohio. (Ex. 4, A.W. Dec!. 2-3). He receives 35-40 hours per
week of one-to-one intensive behavioral therapy from SBSA. (Ex. 4, A. W. Decl. '114). He has frequent stubbornness, low frustration tolerance and repetitive and compulsive behaviors. (Ex. 4, A.W. Dec!. '11'1112-14). His expressive and receptive language skills are severely delayed. (Ex. 4, A.W. Decl. '117).
When KW. is not receiving services from SBSA his behaviors escalate and become more frequent. (Ex. 4, A.W. Dec!. '1117). He will self-stimulate more often, have a shorter attention span and pick up items and watch them fall with more frequency. (Ex. 4, A.W. Dec!. '1117). Prior to attending SBSA, KW. was in a classroom in Worthington City Schools. (Ex. 4, A.W. DecL '11 18). There was not a one-to-one aide to engage him in learning activities, and as a result K.W. was often left alone ifhe was not causing distraction or exhibiting dangerous behaviors and he did not have any interaction with others. (Ex. 4, A.W. Decl. '1119). Returning to Worthington City Schools is not appropriate and would be unsafe for K.W. because he cannot call out for help when needed, he will follow anyone anywhere regardless of the situation, he does not understand personal space which could lead to confrontations with peers and he cannot follow simple directions to go to a specific destination without someone in attendance. (Ex. 4, A.W. DecL ";:'11 15,20).
7

Defendant Helen Jones-Kelley is the Director of Ohio Department of Job and Family Services (ODJFS). ODJFS is the single state agency for the Medicaid program in Ohio and is required, pursuant to O.R.C. § 5111.01 and O.A.c. § 5101:1-37-01, to provide medical assistance in accordance with the federal Medicaid statute, Title XIX ofthe Social Security Act, 79 Stat. 286 (1965).
Defendant Sandra Stephenson is the Director of Ohio Department of Mental Health (ODMH). Defendant Stephenson is responsible for adopting rules that establish standards for services provided by community mental health faeilities.
As directors, Defendant Jones-Kelley and Defendant Stephenson entered into an interagency agreement between ODJFS and ODMH for the purpose of establishing a sub-recipient relationship between the entities to implement 42 C.F.R. § 431 Part M and to provide behavioral health services to people who are eligible for Ohio Medieaid benefits under Title XIX of the Social Security Act. Interagency Agreement Between ODJFS and ODMH, Article I, Section A (Attached as Ex. 12). ODMH is a sub-recipient of federal funding from ODJFS.
Defendants, acting in their official capacities, promulgated rules which govern the Medicaid program in Ohio. The rules promulgated by Defendants, O.A.C. §§ 5101:3-27-02 and 5122-29-17, are effective July I, 2008. These rules require that community mental health services including community psychiatric support treatment services be rehabilitative in nature. §§ 5101 :3-27-02(A) and 5122-29-17(A) (eff. 7/1108) (Attached as Ex. 6 and Ex. 7 respectively). Defendants' define rehabilitative services more narrowly than contemplated under federal law. O.A.C. §§ 5101:3-27-02(A) and 5122-29-17(A) (eff. 7/1/08).
As explained more fully in section II of this memorandum, Defendants have decided to limit the services to be paid for by Medicaid in violation of federal law. As a result, providers
8

authorized by the state to deliver intensive behavioral health services to Medicaid-eligible children will lack the authority, capacity and funds required to provide medically necessary, ongoing, intensive community-based services to the Plaintiff children.
Due to the Defendants' failure to comply with federal Medicaid provisions Plaintiff children, who have serious developmental and behavioral disabilities, will lose the community mental health services that they currently receive and will face the possibility of unnecessary confinement in residential facilities or other costly institutions even though their medical conditions have been successfully addressed in the community under the soon to expire Ohio Medicaid rules. II. Argument
Under Fed. R. Civ. P. 65(b), this court can grant a temporary restraining order ex parte if the plaintiffs present "specific facts shown by affidavit" that they will suffer irreparable harm during the time it would take to notifY the defendants and hold a hearing. First Technology Safety Systems, Inc. v. Depinet, II F. 3d 641, 649-652 (6th Cir. 1993).
This Court must consider four factors in determining whether to grant a temporary restraining order: (1) the likelihood that the plaintiffs will succeed on the merits; (2) whether there is threat of irreparable harm to plaintiffs; (3) the probability that granting the temporary restraining order will cause substantial harm to others; and (4) whether the public interest is advanced by the issuance of the temporary restraining order. These are "factors to be balanced, not prerequisites that must be met." In re DeLorean Motor Co. v. DeLorean, 755 F. 2d 1223, 1229 (6th Cir. 1985). A. Because Defendants' rules violate federal Medicaid law by reducing medically necessarv services to children, Plaintiffs have a substantial likelihood of success on the merits.
9

Every participating Medicaid state is required to provide Early, Periodic Screening, Diagnosis and Treatment (EPSDT) services to Medicaid eligible children under the age of2L See Frew v. Hawkins, 540 U.S. 431,433 (2004); 42 U.S.C. § 1396a(a)(l0)(A), 42 U.S.c, § 1396d(a)(4)(B). The federal requirements ofEPSDT mandate that states provide services whether or not such services are covered under the state plan. 42 U.S.C. § 1396d(r)(5). Under EPSDT, states must provide all the services listed in 42 U.s.c, § I 396d(a) when needed to correct or ameliorate a psychiatric, behavioral or emotional condition. A district court in Louisiana found that the "failure to make behavioral and psychological services available to all EPSDT recipients who need them violates the requirement of42 U.S.C. I 396d(r)(5) that the defendant provide all necessary services within the scope of 42 U.S.C. I 396d(a) necessary to correct or ameliorate health conditions ofEPSDT recipients." Chisholm v. Hood, 133 F. Supp. 2d 894, 901 (E.D. La. 2001).
Services currently being provided to children enrolled at SBSA, in conjunction with their Medicaid waiver andior education services, result in the maximum reduction oftheir physical and mental disabilities, and restoration of their best possible functional level. (Ex. 5, Christiansen Dec!. '1]13; Ex. 9, Rosner Decl.).
The services provided by SBSA have resulted in numerous benefits to Plaintiff children, including increased IQ levels, reduction in developmental disabilities, decrease in behavioral outbursts, increase in on-task behaviors, decrease in self-stimulation behaviors, increased communication skills, increased daily living skills such as toileting, dressing, food preparation, and a decreased chance ofbeing placed in segregated special education classrooms or institutional settings. (Ex. 5, Christiansen Dec!. '1]'1]7-9; Ex. 8, LaMarche Ded; Ex. 9, Rosner
Decl.; Ex. 2, A.C. Decl. W15-16; Ex. 3, K.G. '1]6).
10

SBSA has received Medicaid reimbursement for services provided to Plaintiff children under current rule O.A. C. § 5122-29-17 (eff. 8/23/07) which provides community psychiatric supportive treatment (CPST). (Attached as Ex. 10). These services focus on the "individual's ability to succeed in the community; to identify and access needed services; and to show improvement in school, work and family and integration and contributions within the community." OAC. § 5122-29-17(A). Activities ofCPST include "mental health interventions that address...behaviors, thought processes, etc., that assist an individual in eliminating barriers to seeking or maintaining education..." OAC. § 5122-29-17(B)(9). Additionally, OAC. § 5101:3-27-02(A)(1) provides that "behavioral health counseling and therapy services" are currently reimbursable as Medicaid community mental health services. O.A. C. § 5101 :3-27-02 (eff. 6/l/07) (Attached as Ex. 11).
In contrast to the current rules, O.A.c. § 5101 :3-27-02, promulgated by Defendants and effective July 1, 2008, lists services that are required to be rehabilitative in nature in order to he reimbursable as Medicaid community mental health services. "Rehabilitative services" are defined in O.A.C. § 5101 :3-27-02(A)(eff. 7/1/08) as services that "provide for the maximum reduction of mental illness and are intended to restore an individual to the best possible functional level." Listed among the services that are required to be rehabilitative is community psychiatric supportive treatment (CPST) service. OAC. § 5101 :3-27-02 (eff. 7/1/08). "CPST service is a rehabilitative service intended to maximize the reduction of symptoms of mental illness in order to restore the individual's functioning to the highest level possible." O.A.C. § 5122-29-17(A) (eff. 711108).The proposed rules will significantly narrow the definition and eligibility for CPST services. The rules reqnire that the recipient have a "mental illness" and "have the cognitive ability to be able to participate and benefit from the service". O.A.C. § 5122-
11

29-l7(A), (B)(l) (eff. 711108). Additionally the rule states that services should "restore" an individual. O.A.C. § 51 22-29-1 7(A) (eff. 711108). Similarly, proposed rule O.A.C. § 5101 :3-2702 (eff. 711108) will require that "community mental health services" be "rehabilitative" and provide "for the maximum reduction ofmental illness."
Defendants are impermissibly and categorically limiting the availability of Medicaid services to otherwise eligible children by disability label and functioning level by limiting the scope of rehabilitative services to those that reduce mental illness. These rules fail to incorporate additional federal requirements under EPSDT to provide medically necessary treatment to "correct or ameliorate defects and physical and mental illnesses and conditions" as required under 42 U.S.C. § 1396d(a). (Emphasis added). 1fproper services are provided to children with autism, those children are able to achieve a higher functioning level, including increased 1Q levels. Autism spectrum disorders are coded under Axis I, the axis used to diagnose clinical disorders, in the Diagnostic and Statistical Manual ofMental Disorders, 4th edition, 1994 CDSM N). Diagnoses under Axis I indicate that symptoms of these disorders can be ameliorated and functioning can be increased with intervention unlike diagnoses under Axis II which are long term and not expected to respond to treatment. The state definition of rehabilitative services is clearly more restrictive than federal provisions.
The more expansive federal definition of rehabilitative services includes "any medical or remedial service recommended by a physician or other licensed practitioner of the healing arts, within the scope of his practice under state law for maximum reduction of physical or mental disabilitv ...." 42 C.F.R. § 440. 130(d) (Emphasis added). Defendants should be enjoined from limiting the defmition ofrehabilitative services with regard to Plaintiff children as it violates federal EPSDT requirements.
12

Plaintiff children require these services as recommended by their physician or other licensed treatment provider. The medical opinion and diagnosis of a patient's treating physician are entitled to substantial, if not complete, deference in determining medical necessity. Holman v. Ohio Dept. o/Human Serv., 143 Ohio App. 3d 44, 48 (Ohio Ct. App. 2001), citing King v. Heckler, 742 F. 2d 968, 973 (6th Cir. 1984). Defendants have previously and unsuccessfully argued that ABA is not a medical service and therefore not a medically necessary service covered under Ohio Medicaid. Hummel v. ODJFS, 164 Ohio App. 3d 776 (Ohio Ct. App. 2005).
Additionally, the evidence shows that the services provided to Plaintiffchildren are clearly rehabilitative in nature and are medically necessary. futensive behavioral therapy represents the treatment modality that provides the maximum reduction of physical and mental disability to achieve autistic children's best possible functional level. (Ex. 1, Mulick Dec!. '1[ 35). futensive behavioral therapy is a rehabilitative service, with both medical and remedial components under 42 U.S.C. §1396d(a)(13). The Medicaid Act gives Plaintiffs an enforceable right to intensive behavior therapy services.
Ultimately, it is irrelevant whether Defendants exclude the services provided to the Plaintiff children from their overly restrictive definition of "rehabilitative services" as long as the services fall within the scope of federal Medicaid. The Eighth Circuit has held that, reading 42 l;.S.C. §§ 1396a, 1396d(a) and 1396d(r) together, a state plan need not specifically list every treatment service conceivably available under EPSDT mandate, but the state plan must pay part or all of cost of treatments to ameliorate conditions discovered by the screening process when those treatments mect definitions set forth in 42 U.S.C. § 1396a. Pediatric Speciality Care, Inc. v. Ark. Dept. o/Human Serv., 293 F. 3d 472 (8th Cir. 2002). Thus, pursuant to the requirements ofEPSDT, Plaintiffchildren are entitled to continue receiving intensive behavioral services
13

provided by SBSA through Ohio's current Medicaid rules until such time as Defendants promulgate rules that comply with federal law. Ifthis court does not enjoin Defendants from implementing Ohio's new rules, Plaintiff children will not be able to secure medically necessary services to which they are entitled under federal law.
B. The issuance of the Temporary Restraining Order will prevent irreparable harm to Plaintiffs.
Because the Defendants will no longer provide Medicaid funds for year round, centerbased, one-to-one, ABA therapy for 35-40 hours per week, Plaintiff children will lose medically necessary services which they currently receive.
When children with autism receive intensive behavioral intervention at a young age, they
demonstrate significant increases in their LQ. scores during early childhood, and significant gains in adaptive behavior. (Ex. I, Mulick Dec!. , 26). Even if children with autism do not
receive these services until they are older, they can significantly increase their adaptive skills and decrease their self-destructive, aggressive, and other kinds of socially undesirable behavior. (Ex. 1, Mulick Dec!. , 27).
IfPlaintiff children do not receive these services, they will experience a regression in skills and an increase in unwanted, often dangerous, behaviors. (Ex. 5, Christiansen Dec!. -:, 610; Ex. 9, Rosner Dec!.; Ex. 2, A.C. Dec!., 17; Ex. 3, K.G. Dec!., 12; Ex. 4, K.W. Decl.' 17). Plaintiff children's maladaptive behaviors will likely increase, safety will be difficult or impossible to provide for, and learning will be stunted and perhaps not possible. (Ex. 8, LaMarche Dec!. , B). Additionally, Plaintiff children risk the possibility of being segregated from their peers. (Ex. 9, Rosner Ded). The loss of services currently provided by SBSA to Plaintiff children will not result in the maximum reduction of their developmental disabilities or restoration of their best possible function level, as mandated by 42 U.s.C. §1396d(a)(13).
14

Plaintiff parents have not found nor have Defendants offered alternative services that will result in the maximum reduction of the Plaintiff childrens' developmental disabilities or restoration of their best possible functional level as mandated by 42 U.S.C. §1396d(a)(13). Nationwide Children's Hospital in Columbus, Ohio offers a program of early intensive behavioral intervention to autistic children up to age 5 or 6, with less intensive follow up thereafter. (Ex. 1, Mulick Decl. ~ 31). Nationwide Children's Hospital Autism Center currently has a long waiting list and the comprehensive service is costly. (Ex. 1, Mulick DecL ~ 32). Nationwide Children's Hospital Autism Center is based on a home and community model of service delivery, and children who require center-based services and out-of-home teaching cannot receive these through the Autism Center. (Ex. 1, Mulick ~ 33). Often children evaluated at Nationwide Children's Hospital Developmental Evaluation Program are referred to SBSA because they offer center-based behavioral intervention and because they offer a high quality service. (Ex. 1, Mulick Decl.1f 34).
Plaintiff parents have been urged to contact their local school districts to attempt to recover lost services through special education. Unfortunately, ABA programs can be expensive and have not been widely adopted by school systems. (Ex. 1, Mulick Decl. ~ 23). In the past, Plaintiff children did not receive proper services when enrolled in local school district programs. Plaintiff children were not engaged in services, did not have interaction with teachers or peers and exhibited serious dangerous behaviors. (Ex. 5, Christiansen Dec!. ~ 7; Ex. 2, A.C. Dec!. ~ 19; Ex. 4, A.W. Decl. .-,r19-20).
Once Defendants' new rules become effective, some reduced services may be available to Plaintiff children from other sources and a reduced SBSA program. If the temporary restraining order is not granted, not only will these services will not result in the maximum
15

reduction of Plaintiff children's developmental disabilities or restoration of their best possible functional level as mandated by 42 U.S.C. §1396d(a)(l3), but also, these children will suffer loss of skills, increased negative behavior and irreparable harm. C. The threatened injury to Plaintiffs outweighs tbe little or uo harm that maintaining status quo through a temporary restraining order would cause Defendants.
As Defendants' rules are not effective until July I, 2008, Plaintiffs request only the maintenance of the status quo. Allowing the status quo to be maintained will not jeopardize any interest of Defendants nor cause any harm to them. In contrast, Plaintiff children face serious hann if the temporary restraining order is not issued. Plaintiff children will lose services that they currently receive. Due to the loss of services, and as extensively documented in the attached declarations, Plaintiff children will experience a regression in skills and an increase in unwanted, often dangerous, behaviors. Additionally, Plaintiff children are at an increased risk of being placed in a segregated special education classroom or costly institutional care. There are no other comparable alternatives from which Plaintiff children could receive services that would result in the maximum reduction of their developmental disabilities or restoration of their best possible functional level. Plaintiffs and their families will suffer great harm if no injunction is granted. D. The public interest favors the issuance of a temporary restraining order.
Public interest favors the preservation of the right of ehildren with disabilities to maintain, without interruption, needed services. Congress amended the Medicaid Act in 1989 to mandate that a state agency must provide EPSDT-eligible ehildren "all reasonably necessary medical care." Rosie D. v. Romney, 410 F. Supp. 2d 18,22 (D. Mass. 2006). The specific language states that Medicaid-eligible children must receive "such other necessary health care to correct or ameliorate defects, ..illnesses and conditions discovered by the screening services, whether or not such services are covered under the state plan," 42 U.S.c. 1396d(r)(5). In effect
16

that means that "no Medicaid-eligible child in this country ... will go without treatment deemed medically necessary by his or her clinician." Rosie D., 410 F. Supp. 2d at 22.
Children who receive appropriate treatment for autism can make significant gains in most areas of their lives. (Ex. 1, Mulick Decl. ~ 11). After intensive behavioral intervention in early childhood, some children can achieve normal levels of learning and can live and work independently as adults. (Ex. 1, Mulick Decl. 11). Those children who do not receive appropriate care face being institutionalized at a cost which is much higher and oflonger duration than treatment. Cost analysis studies show a savings of$I,OOO,OOO per child over that child's lifetime by receiving this medically necessary, 35-40 hours per week, one-to-one, early intervention. (Ex. 8, LaMarche Decl. ~ A).
The changes proposed by Defendants are not necessary for compliance with federal Medicaid rules. The Centers for Medicare & Medicaid Services (CMS), the federal agency which administers Medicaid program, is not requiring Ohio to make changes. Several states, including Pennsylvania and Wisconsin, mandate intensive behavioral intervention programs funded by Medicaid for children with autism through age eleven. (Ex. 1, Mulick Dec!. ~ 28).
At the federal level, Congress has expressed its opposition to similar rehabilitative restrictions. Congress included language imposing a moratorium on the proposed federal regulations on rehabilitative services in two bills on children's health insurance and the budget bill covering the U.S. Department of Health and Human Services. See Pub. 1. No. llO-173, llOth Congo (2008). Recently, the "Protecting the Medicaid Safety Net Act of2008", House Bill 5613, which proposes to further extend the moratoria in Public Law 110-173 passed in the
17

United States House of Representative. 1 A similar bill proposing to further extend the moratoria in Public Law 110-173 was introduced in the United States Senate as S 2819.
The public interest favors the issuance of this injunction. III. Security
Rule 65(c) of the Federal Rules of Civil Procedure requires that seeuritybe set "in sueh sum as the court deems proper, for the payment of sueh costs and damages as may be ineurred or suffered by any party who is found to have been wrongfully enjoined or restrained."
Defendants carmot state any legitimate cost or damage to be incurred by maintaining status quo pending resolution of this case. The Sixth Circuit Court of Appeals has held that district courts have discretion not to require any posting of security. Moltan Co. v. Eagle-Pincher Industries. Inc., 55 F. 3d 1171 (6th Cir. 1995). Moreover, Plaintiffs are Medicaid-eligible, oflow income and lack the resources to post bond. This Court should deem the proper sum of security in this matter to be zero. IV. Conclusion
For the reasons cited above, Plaintiff requests that this Court grant this instant Motion for Temporary Restraining Order.
Respectfull y submitted,
Michelle F. Atkinson, Trial Attorney (0079185) m~j,0n(i.i!Olrs.state.QJ).",-us
~ftU'a1t& M'-!.:n'
Susan G. Tobin, Of Counsel (0021725)
slobin@olrs.state.oh,u~
l GovTrack.us. H.R. 5613--1 10th Congress (2008): Protecting the Medicaid Safety Net Act of2008, GovTrack.us (database offtderallegislation), htm:liwww.•9vtrack.llS!Congressil:!ilI.xpd.lbill··hIIO-51i.12. (accessed May 1,2008)
18

Ohio Legal Rights Service 50 West Broad Street, Suite 1400 Columbus, Ohio 43215 (614) 466-7264 (614) 644-1888 (fax) Counsel for Plaintiffs
CERTIFICATE OF SERVICE I hereby certify that on May 2,2008, I presented the foregoing Motion and Memorandum to the Clerk of Court for the filing and uploading to the CMlECF system, which will send
notification of such filing to the following: flecKI{ ThG\lXl CI 5j AA&.
1 1 '~)~A..i (}i!I.'~~ ~ ,:[!N1lf.'.41c~
Michelle F. Atkinson (0079185) mat)\;inson(iVoJrs,state.oh. us Trial Attorney for Plaintiffs Ohio Legal Rights Service 50 W. Broad St, Ste 1400 Columbus, Ohio 43215 (614) 466-7264 (614) 644-1888 (fax)
19

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

PLEAS, et. al.
Plaintiffs,
vs.
HELEN JONES-KELLEY, in her capacity as Director of the Ohio Department of Job and Family Services, et. al.
Defendants.

CASE NO. 2:08 CV 421
JUDGE GRAHAM MAGISTRATE JUDGE KING

PROTECTIVE ORDER

WHEREAS the parties may produce information or documents during the discovery process that contain sensitive or confidential financial and medical information;
WHEREAS the parties are interested in permitting discovery to proceed without delay occasioned by possible disputes regarding the confidential nature of certain information;
NOW THEREFORE, upon good cause shown and upon consent of the appearing parties, it is hereby ORDERED that:
1. If a party in good faith believes that any written, recorded or graphic material, tangible item or any other form of information produced in this action pursuant to pre-trial discovery, court order, or agreement of the parties contains sensitive or confidential financial or medical information, the party may designate such material as

"Confidential" either by stamping the word "Confidential" on the document, by any other means provided for in this Protective Order, or by other reasonable method as agreed to by the parties. The designation of documents and information as "Confidential" by any party shall not supersede any federal or state law, including, but not limited to, the Ohio Public Records Act. ''Confidential" information includes protected health information, as defined in 45 C.F.R. 160.103 and 164.501, and confidential information concerning Medicaid recipients that must be safeguarded pursuant to R.C. 5101.27 and 42 C.F.R. 431.300-431.306.
2. No confidential financial or medical information or material may be disclosed except to the following:
a. Counsel of record, "of counsel," and their employees, co-workers (including, but not limited to, secretaries, paralegals, and administrative and support staff), representatives, contractors, and agents;
b. outside experts and consultants providing assistance in the abovecaptioned action, as well as their administrative and support staff;
c. the parties and all potential witnesses; d. such officers, directors, partners, employees, co-workers,
representatives, contractors, and agents of the parties that are required to provide assistance to counsel in this case; e. the Court, all subsequent appellate courts, and their personnel (including, but not limited to, court reporters, stenographers, and other court personnel);
2

f. Witnesses in the course of pre-trial and trial proceedings; g. Jurors; h. Any other person to whom the producing party agrees in writing
(or as otherwise provided in the instant Protective Order) i. Any other person to whom disclosure is required by federal and
state law, including, but not limited to, the Ohio Public Records Act. 3. Before making disclosure of confidential financial or medical information to outside experts and consultants or potential witnesses (other than potential witnesses who are also officers, directors, partners, employees, co-workers, representatives, contractors, and agents of the parties), the party must obtain an agreement in writing from such person reciting that he or she has read a copy of this Protective Order and agrees to be bound by its provisions. 4. If one party has reason to believe that a person to whom confidential financial and medical material has been disclosed has violated the terms of this Protective Order, the party shall provide a signed statement setting forth the basis for such belief. The parties will then make a good faith effort to resolve the dispute. If the parties cannot resolve the dispute, it shall be resolved by the Court pursuant to the Federal Rules of Civil Procedure. 5. Notwithstanding any other provisions of this Protective Order, this Order has no effect upon any party's use of its own confidential material. 6. No party shall be obligated to challenge the propriety of the designation of any information or documents as "Confidential," and a failure to do so shall not preclude
3

any subsequent objection to such designation, or a motion for authorization to disclose such confidential material to persons not referenced herein or otherwise modify the provisions of this Protective Order.
7. Any party may, at any time, notify another party (or, if applicable, a nonparty) in writing (or, in the case of a deposition, either on the record or in a subsequent writing) of its objection to the designation of any information or document as "Confidential." In such event, the parties shall attempt to resolve the dispute in good faith on an expedited and informal basis. If the dispute cannot be resolved in an informal and expeditious manner, either party may, on reasonable notice, apply for a ruling from the Court on such issue. The material in issue shall continue to be treated as confidential until the Court orders otherwise.
8. Inadvertent production of any financial or medical information without a "Confidential" designation shall not be deemed to waive a party's claim to its confidential nature, or estop such party from designating information or documents as "Confidential" at a later date. Disclosure of said document or information by the other party prior to a "Confidential" designation shall not be deemed a violation of this Protective Order.
9. All parties agree to protect personal privacy pursuant to Southern District of Ohio Civil Rule 26.2 by omitting or, where inclusion is necessary, partially redacting from court filings, social security numbers, full dates of birth, bank or other financial account numbers, names of minor children, or other personal information.
10. Any information or document containing confidential financial or medical information or other personal identifying information regarding plaintiffs shall be filed
4

under seal with the Court. Plaintiffs and their counsel shall have access to these sealed documents.
11. Throughout, and after the conclusion of, this litigation (including any appeals), the restrictions set forth herein shall continue to be binding upon the parties and all other individuals subject to the terms of this Protective Order.
12. Any party designating financial or medical information or documents as "Confidential" may, within sixty (60) days after the final termination of this action and all appeals resulting therefrom, submit a written request to the other party for return of such information or documents. The party who possesses the confidential information shall return such information within sixty (60) days of receipt of such written request, or the party shall destroy all such confidential information (including all copies made) at the end of the litigation. This paragraph shall not apply to attorney work product, any documents or information that are already part of the Court record, or any information or documents that are subject to disclosure, or have already been disclosed, under federal and state law.
13. Nothing in this Order shall prevent any party from seeking amendments broadening or restricting the rights of access to or the use of confidential material or any other modification of this Protective Order.
14. Nothing in this protective order shall prevent Defendants from using or disclosing Confidential Material, or any other information or material, for a purpose related to the administration of a program administered or supervised by ODJFS or any other government entity, including without limitation determining or reviewing a
5

Plaintiff’s eligibility for benefits, items, or services. Defendants shall not be required to destroy any information used for the purposes described in this paragraph.

IT IS SO ORDERED.

S/ James L. Graham JUDGE

By:/s/ Michelle F. Atkinson MICHELLE F. ATKINSON (0079185) Ohio Legal Rights Service 50 West Broad Street, Suite 1400 Columbus, Ohio 43215 Trial Attorney for Plaintiffs

By:/s/ Ara Mekhjian* ARA MEKHJIAN (0068800) Assistant Attorney General Health and Human Services Section 30 East Broad Street, 26th Floor Columbus, Ohio 43215 Trial Attorney for Defendant Helen Jones-Kelley

By:/s/ Roger F. Carroll* ROGER F. CARROLL (0023142) Assistant Attorney General Health and Human Services Section 30 East Broad Street, 26th Floor Columbus, Ohio 43215 Trial Attorney for Defendant Sandra Stephenson
* via telephone consent May 14, 2008
6

 
 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTEHRN DISTRICT OF OHIO
EASTERN DIVISION

PARENTS’ LEAGUE FOR

:

EFFECTIVE AUTISM SERVICES, et al., :

:

Plaintiffs,

:

:

v.

:

:

HELEN E. JONES-KELLEY, et al.,

:

:

Defendants.

:

CASE NO. 2:08-cv-421
JUDGE GRAHAM MAGISTRATE JUDE KING

__________________________________________________________________

DEFENDANTS’ JOINT MOTION TO DISMISS __________________________________________________________________

Helen Jones-Kelley, Director of the Ohio Department of Job and Family Services, and

Sandra Stephenson, Director of the Ohio Department of Mental Health, move to dismiss

Plaintiffs’ Complaint pursuant to Fed.R.Civ.P. 12(b)(6), and/or 12(b)(7). A Memorandum in

Support is attached.

Respectfully submitted,

THOMAS R. WINTERS First Assistant Attorney General

/s/ Ara Mekhjian ARA MEKHJIAN (0068800) Senior Assistant Attorney General Health and Human Services Section 30 East Broad Street, 26th Floor Columbus, Ohio 43215-3400 Telephone: (614) 466-8600 Facsimile: (866) 478-7791 amekhjian@ag.state.oh.us

Counsel for Helen E. Jones-Kelley, Director of the Ohio Department of Job and Family Services

/s/ Roger Carroll ROGER F. CARROLL (0023142) Principal Assistant Attorney General Health and Human Services Section 30 East Broad Street, 26th Floor Columbus, Ohio 43215-3400 Phone: (614) 466-8600 Facsimile: (614) 466-6090 rcarroll@ag.state.oh.us Counsel for Sandra Stephenson, Director of the Ohio Department of Mental Health
ii

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ......................................................................................................... iv

I. INTRODUCTION ...............................................................................................................1

II. FACTS

......................................................................................................................1

III. LAW AND ARGUMENT ...................................................................................................3

A. Plaintiff PLEAS Should be Dismissed Because it Lacks Association Standing ...................................................................................................................3

B. Ohio Legal Rights Service Cannot Represent Plaintiff PLEAS ..............................5

C. The Complaint Should be Dismissed Unless Plaintiffs Consent to Join CMS Pursuant to Fed.R.Civ.P.19.....................................................................6

1. Standard for Joinder Pursuant to Fed.R.Civ.P.19 ........................................6

2. CMS Must Be Joined as a Defendant ..........................................................7

D. The Complaint Should Be Dismissed Because Plaintiffs have not Alleged a Right Enforceable Through 42 U.S.C. §1983 .........................................9

1. 42 U.S.C. §1396d Does Not Create Rights Enforceable Through 42 U.S.C. §1983 ..........................................................................10

2. An Allegation that 42 U.S.C. §1396a or “the Medicaid Act,” Without Citation to a Subsection, is Insufficient .......................................11

3. 42 U.S.C. §1396a(a)(43) Does Not Confer Rights That Plaintiffs Seek to Enforce ..........................................................................................11

E. The Complaint Should be Dismissed to the Extent It Seeks To Compel Defendants To Furnish Actual Health Care Services ............................................12

F. Plaintiffs Cannot Sue For Alleged Violations of Regulations Through 42 U.S.C. §1983.....................................................................................................12

IV. CONCLUSION..................................................................................................................16

CERTIFICATE OF SERVICE ......................................................................................................18

iii

TABLE OF AUTHORITIES
Cases 31 Foster Children v. Bush, 329 F.3d 1255 (11th Cir. 2003) ........................................................ 10 A.M.H. v. Hayes, 2004 U.S. Dist. LEXIS 27387 (S.D. Ohio 2004) at *21 .................................. 10 Alexander v. Choate, 469 U.S. 287 (1985) ..................................................................................... 7 Alexander v. Sandoval, 532 U.S. 275 (2001)................................................................................ 13 Almendares v. Palmer, 284 F. Supp.2d 799 (N.D. Ohio 2003)....................................................... 15 Arizona Health Care Cost Containment System v. McClellan,
508 F.3d 1243 (9th Cir. 2007) ................................................................................................... 7 Blessing v. Freestone, 520 U.S. 329 (1997)................................................................................ 9, 11 Bonano v. East Caribbean Airline Corp., 365 F.3d 81 (1st Cir. 2004) ............................................ 14 Bruggeman v. Blagovitch, 324 F.3d 906 (7th Cir. 2003)............................................................... 12 Caswell v. City of Detroit Housing Comm., 418 F.3d 615 (6th Cir. 2005) ................................... 15 Chicago Teachers Union v. Johnson, 639 F.2d 353 (7th Cir. 1980) ............................................... 6 Children’s and Parents Rights Ass’n of Ohio, Inc. v. Sullivan,
1991 U.S. Dist. LEXIS 8371 at *6 (N.D. Ohio 1991) ............................................................... 3 City of Rancho Palos Verdes v. Abrams, 544 U.S. 113 (2005) ....................................................... 14 Colon v. Gonzalez, 2008 U.S. Dist. LEXIS 23182 (Dist. P.R. 2008) at *4.................................... 8 Clark v. Portage County, 281 F.3d 602 (6th Cir. 2002) ...................................................................9 Dorsey v. Tompkins, 917 F. Supp. 1195 (S.D. Ohio 1996) ............................................................ 6 Dvorak v. Wright State Univ., 1997 U.S. Dist. LEXIS 23804 (S.D. Ohio 1997) at *35 .............. 16 Ford v. Kreachbaum, 1992 WL 752897 (S.D. Ohio 1992) at *7 ................................................... 6 Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103 (1989).......................................... 9 Gonzaga Univ. v. Doe, 536 U.S. 273 (2002) .......................................................... 9, 11, 13, 14, 15
iv

Great Lakes Consortium v. Michigan, 480 F. Supp.2d 977 (W.D. Mich. 2007) ............................. 15 Health Care For All, Inc. v. Romney,
2004 U.S. Dist. LEXIS 26470 at *15 (Dist. Mass 2004)......................................................... 10 Hunt v. Washington State Apple Advertising Comm., 432 U.S. 333 (1977)………………………4 Johns v. Supreme Court of Ohio, 753 F.2d 524 (6th Cir. 1985).................................................... 16 Johnson v. City of Detroit, 319 F. Supp.2d 756 (E.D. Mich. 2004) ............................................... 15 Keweenaw Bay Indian Community v. Michigan, 11 F.3d 1341 (6th Cir. 1993)……..…………….6 Lopez v. Arraras, 606 F.2d 347 (1st Cir. 1979)............................................................................... 7 Loschiavo v. City of Dearborn, 33 F.3d 548 (6th Cir. 1994)................................................... 13, 15 Mandy R. v. Owens, 464 F.3d 1139 (10th Dist. 2006)................................................................... 12 McCrary v. Ohio Dept. of Hum. Servs., 2000 U.S. App. LEXIS 19212 at *6 (6th Cir. 2000) .......... 16 McNutt v. General Motors Acceptance Corp., 298 U.S. 178 (1936)…….………………………..3 National Child Support v. Hayes,
2005 U.S. Dist. LEXIS 9355 at *13-14 (S.D. Ohio, 2005) ..................................................... 11 Natl. Rifle Assoc. v. Magaw, 132 F.3d 272 (6th Cir. 1997)............................................................. 4 Pediatric Specialty Care Network v. Arkansas, 443 F.3d 1005 (8th Cir. 2006) ............................... 10 Pennhurst v. Halderman, 465 U.S. 89 (1984) .............................................................................. 16 Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102 (1968)................................ 8 S.D. v. Hood, 391 F.3d 581 (5th Cir. 2004) ..................................................................................... 14 Samuels v. District of Columbia, 770 F.2d 184 (D.C. Cir. 1985)................................................. 13 Save Our Valley v. Sound Transit, 335 F.3d 932 (9th Cir. 2003)............................................ 13, 15 Valley Forge Christian College v. Americans United for Separation of
Church and State, 454 U.S. 464 (1982)..................................................................................... 3 Westside Mothers v. Olszewski, 454 F.3d 532 (6th Cir. 2006) ...................................................... 12
v

Statutes and Rules 42 C.F.R. §440.130(d) .............................................................................................................. 2, 12 42 U.S.C. §§1396a .............................................................................................................. 9, 10, 11 42 U.S.C.§1396a(a)(43).......................................................................................................9, 11, 12 42 U.S.C. §1396a(a)(43)(A) – (D) ................................................................................................. 11 42 U.S.C. §1396d.......................................................................................................................... 10 42 U.S.C. §1396d(a) ..................................................................................................................9, 10 42 U.S.C.§1396d(a)(4)(B) .................................................................................................. 9, 10, 11 42 U.S.C.§1396d(a)(6).............................................................................................................. 9, 11 42 U.S.C.§1396d(a)(13)...................................................................................................... 9, 10, 11 42 U.S.C. §1396d(a)(19)................................................................................................................10 42 U.S.C. §1396d(b) ....................................................................................................................... 7 42 U.S.C.§1396d(r)........................................................................................................................10 42 U.S.C. §1396d(r)(5) ....................................................................................................... 9, 10, 11 42 U.S.C. §10801 through 10807 ................................................................................................... 5 42 U.S.C. §10802(4)(B)(ii)………………………………………………………………………..5 42 U.S.C. §10805(a)(1)................................................................................................................... 5 42 U.S.C. §15001 through 15044 ................................................................................................... 5 42 U.S.C. §15002(8)(A).................................................................................................................. 5 42 U.S.C. §15043(a)(2)(A)(i) ..........................................................................................................5 42 U.S.C. §1983..................................................................................................................... passim Fed.R.Civ.P. 12(b)(7)...................................................................................................................... 7 Fed.R.Civ.P. 19............................................................................................................................... 8
vi

Fed.R.Civ.P. 19(a) ...................................................................................................................... 6, 7 Fed.R.Civ.P. 19(a)(2)...................................................................................................................... 9 Fed.R.Civ.P. 19(b) .......................................................................................................................... 6 Ohio Admin. Code 3301-51-01 through -30................................................................................... 2 Ohio Admin. Code 5101:3-1-01(A)................................................................................................ 4 Ohio Admin. Code 5101:3-2........................................................................................................... 2 Ohio Admin. Code 5101:3-2-02(B)(4) ........................................................................................... 5 Ohio Admin. Code 5101:3-3-47.1(A)(8) ........................................................................................ 5 Ohio Admin. Code 5101:3-4....................................................................................................... 2, 5 Ohio Admin. Code 5101:3-4-26(F) ................................................................................................ 5 Ohio Admin. Code 5101:3-8-05(G)(9) ........................................................................................... 5 Ohio Admin. Code 5101:3-9............................................................................................................2 Ohio Admin. Code 5101:3-10......................................................................................................... 2 Ohio Admin. Code 5101:3-15......................................................................................................... 2 Ohio Admin. Code 5101:3-27-02 ................................................................................................... 1 Ohio Admin. Code 5101:3-27-02(A).............................................................................................. 1 Ohio Admin. Code 5122-29-17 ...................................................................................................... 2 Ohio Admin. Code 5122-29-17(A)................................................................................................. 2 Ohio Admin. Code 5124-1-02(D)................................................................................................... 5 Ohio Admin. Code 5124-1-02(E) ................................................................................................... 5 R.C. 3310.41 ................................................................................................................................... 2 R.C. 5123.60(A)(1) ......................................................................................................................... 5 R.C. 5123.60(F)(4).......................................................................................................................... 5
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MEMORANDUM IN SUPPORT I. INTRODUCTION
Plaintiffs, Parents’ League for Effective Autism Services (“PLEAS”) and three individuals receiving services at Step-by-Step Academy, Inc. (“SBSA”), seek to prevent two new administrative rules from becoming effective on July 1, 2008. All claims raised by PLEAS must be dismissed for lack of standing. Even if PLEAS had standing (and it does not), PLEAS should still be dismissed because Plaintiffs’ counsel is prohibited from representing PLEAS.
Unless the remaining Plaintiffs consent to joining the Centers for Medicare and Medicaid Services (“CMS”), their claims must also be dismissed pursuant to Fed.R.Civ.P. 19. If those Plaintiffs do consent to joining CMS, their claims should be dismissed because they have not identified any federal statute(s) enforceable through 42 U.S.C. §1983 that grant Plaintiffs a right to the relief they request. Also, to the extent that they seek an order requiring Defendants to furnish health care services, that claim for relief should be dismissed. II. FACTS
Earlier this year, Defendants adopted two new administrative rules that are set to become effective on July 1, 2008. See Ex. 1. The first rule – Ohio Admin. Code 5101:3-27-02 (eff. 7/1/08) – describes when the Ohio Medicaid program will cover community mental health services. The old rule stated that Ohio Medicaid would cover those services “when rendered by eligible medicaid providers.” Ohio Admin. Code 5101:3-27-02(A). The new rule requires that the services be “rehabilitative” and defines the term “rehabilitative.” Id. It defines “rehabilitative services” as services that “provide for the maximum reduction of mental illness and are intended to restore an individual to the best possible functional level.” Id. This language parallels federal regulations which states that “rehabilitative services” include “any medical or

remedial services recommended by a physician or other licensed practitioner of the healing arts, within the scope of his practice under State law, for maximum reduction of physical or mental disability and restoration of a recipient to his best possible functional level.” 42 C.F.R. §440.130(d).
The second rule – Ohio Admin. Code 5122-29-17 (eff. 7/1/08) – describes what services will be considered to be community psychiatric supportive treatment (“Community Psych”) services. Ohio Admin. Code 5122-29-17 (eff. 7/1/08). The new rules clarifies a number of provisions in the old rule regarding the provision of Community Psych services. In particular, it requires that those services be rehabilitative and intended to restore an individual’s functioning to the highest possible level. See Ohio Admin. Code 5122-29-17(A) (eff. 7/1/08).
Neither of these rules prohibit health care providers from furnishing services addressed in other rules or prohibit Medicaid from covering services addressed in other rules. Other rules allow for the provision and funding of a vast number of services to autistic children after the new rules become effective. For example, autistic children can receive (and Medicaid will pay for) psychology services, hospital services, physician services, pharmaceutical services, durable medical equipment, medical transportation, and outpatient therapy services (e.g., occupational therapy, speech therapy, and physical therapy). See Ohio Admin. Code 5101:3-8-05; 5101:3-2 et seq.; 5101:3-4 et seq.; 5101:3-9 et seq.; 5101:3-10 et seq.; 5101:3-15 et seq. Many autistic children may also be eligible for “autism scholarships” that pay up to $20,000 per school year to provide special education and/or related services that implement the child’s individualized education program. See R.C. 3310.41; Ohio Admin. Code 3301-51-01 through -30.
Plaintiffs allege that when the new rules go into effect, SBSA will be deprived of the “authority, capacity, and funds” necessary to provide “medically necessary services,” “applied
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behavioral analysis,” “community mental health services,” “intensive behavioral health services,” and/or “community psychiatric supportive treatment.” See Compl. at p.1 (Introduction) and ¶¶6, 8, 13, 21, and 28, 54-57; Plaintiffs’ Motion for Temporary Restraining Order at 11.1 They further allege that Plaintiff children will be injured if they cannot obtain these services. Compl. at ¶7. Therefore, Plaintiffs seek to enjoin enforcement of the new rules. Plaintiffs’ Complaint should be dismissed for the reasons discussed below. III. LAW AND ARGUMENT
A. Plaintiff PLEAS Should Be Dismissed Because It Lacks Association Standing.
Plaintiffs have the burden of showing they have standing to sue in federal court. See, e.g., Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472 (1982); Children’s and Parents Rights Ass’n of Ohio, Inc. v. Sullivan, 1991 U.S. Dist. LEXIS 8371 at *6 (N.D. Ohio 1991) (attached as Ex. 2). If a plaintiff’s allegations of jurisdictional facts are challenged in any appropriate manner, a plaintiff must support them by competent proof. Children’s and Parents Rights Assn of Ohio, Inc., 1991 U.S. Dist. LEXIS at *6, citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936).
Plaintiff PLEAS lacks standing in its own right, because it is not a natural person and is not entitled to Medicaid services or reimbursement. See Compl. at ¶¶5-8. PLEAS could have standing if it could demonstrate that it has standing to assert its members’ rights, a concept often referred to as “association standing.” In order to show that it has association standing, PLEAS must show that: 1) its members would otherwise have standing to sue in their own right; 2) the interests it seeks to protect are germane to its purpose; and 3) neither the claims asserted nor the
1 Because Plaintiffs have not indicated the specific types of services that make up these variously named service bundles, Defendants cannot determine precisely what types of services are at issue in this case (physician services, pharmaceuticals, durable medical equipment, nursing services, etc.).
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relief requested require the participation of individual members in the lawsuit. See Natl. Rifle Assoc. v. Magaw, 132 F.3d 272, 294 (6th Cir. 1997), citing, Hunt v. Washington State Apple Advertising Comm., 432 U.S. 333 (1977).
PLEAS cannot satisfy the third part of the association-standing test because the claims in the Complaint involve fact-specific inquiries regarding the children and/or their legal guardians. For example, the Complaint alleges that without services from SBSA, PLEAS children are at risk of a regression in skills and an increase in unwanted behaviors and/or an increase in aggressive and dangerous behaviors. Compl. at ¶¶7, 16, 24, and 32. This allegation cannot be proven (or tested by Defendants) without the participation of the Plaintiff children and/or their guardians. It may be that some Plaintiff children could receive adequate services from other providers or programs after the new rules become effective. That will depend, in part, on the individual medical conditions of the individual Plaintiff children. Also, the Complaint alleges that Plaintiffs are currently seeking “medically necessary” services that they risk losing when the new rules become effective. But whether a service is “medically necessary” involves complex factspecific inquiries into an individual’s medical condition and the specific services being sought. See Ohio Admin. Code 5101:3-1-01(A) regarding “general” definition of medical necessity.2 This inquiry requires the participation of the individual Plaintiff children.
Because the Plaintiff children must participate in the lawsuit, PLEAS lacks association standing and should be dismissed.
2 There are a number of standards for determining whether an item or service is “medically necessary.” Some items and services are subject to medical necessity standards that are specific to those items and services. For example, hospital services, nursing facility therapy services, physical medicine and rehabilitation services, psychology services, chiropractic services, and numerous other Medicaid-covered services must meet specific criteria to be “medically necessary.” See e.g., Ohio Admin. Code 5101:3-2-02(B)(4) (hospital services); 5101:3-3-47.1(A)(8) (nursing facility therapy services); 5101:3-4-26(F) (physical medicine and rehabilitation services); 5101:3-805(G)(9) (psychology services).
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B. Ohio Legal Rights Service Cannot Represent Plaintiff PLEAS. Plaintiff PLEAS is represented by Ohio Legal Rights Service (“OLRS”). OLRS has been designated as Ohio’s “protection and advocacy system” (“P&A system”) established by the Developmental Disabilities Assistance and Bill of Rights Act (the “DDA”) and the Protection and Advocacy for Mentally Ill Individuals Act (the “PAIMI”).3 The DDA is codified at 42 U.S.C. §15001 through 15044 and the PAIMI is codified at 42 U.S.C. §10801 through 10807. The DDA and the PAIMI do not permit OLRS to represent organizations. They only permit it to represent individuals with mental illness or developmental disabilities. See 42 U.S.C. §10805(a)(1); 10802(4)(B)(ii); 15043(a)(2)(A)(i); 15002(8)(A). Ohio law implementing the DDA and PAIMI limit OLRS to protecting and advocating the rights of: 1) mentally ill persons: 2) mentally retarded persons; 3) developmentally disabled persons; and 4) other disabled persons, provided OLRS is operating under a grant issued pursuant to R.C. 5123.60(F)(4). R.C. 5123.60(A)(1). OLRS’ own rules expressly prohibit it from pursuing legal actions on behalf of individuals who are not disabled and/or mentally ill. See Ohio Admin. Code 5124-1-02(E) (“In carrying out the purposes identified in [the DDA and PAIMI], [O]LRS shall represent only a person who has or has been alleged to have mental retardation or another developmental disability, or who is labeled as mentally ill.”) (attached as Ex. 12).4 OLRS is therefore prohibited from representing PLEAS.
3 See Ohio Admin. Code 5124-1-02(D). 4 This rule is current and accurate to the best of Defendants’ knowledge. It is not available in paper form or any electronic database known to Defendants. It was provided by OLRS at Defendants’ request.
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C. The Complaint Should Be Dismissed Unless Plaintiffs Consent To Join CMS Pursuant To Fed.R.Civ.P. 19. 1. Standard For Joinder Pursuant To Fed.R.Civ.P. 19.
The question of whether a complaint must be dismissed for failure to join an a party involves a three-step process. Ford v. Kreachbaum, 1992 WL 752897 (S.D. Ohio 1992) at *7 (ordering joinder of U.S. Secretary of Agriculture in §1983 action against Ohio Department of Human Services) (attached as Ex. 3); Dorsey v. Tompkins, 917 F. Supp. 1195, 1200 (S.D. Ohio 1996) (Graham, J.), citing, Keweenaw Bay Indian Community v. Michigan, 11 F.3d 1341, 1345 (6th Cir. 1993). Under Fed.R.Civ.P. 19(a), a person who is subject to service of process and whose joinder will not deprive the court of subject matter jurisdiction shall be joined if: 1) in the person’s absence complete relief cannot be accorded among the existing parties, or 2) the person claims an interest in the subject matter of the action and disposition of the action in his absence may impair or impede his ability to protect that interest or create a substantial risk of double, multiple or inconsistent obligations. Ford, 1992 WL 752897 at *7. If the person falls within either of these categories, the court must then consider the second issue of whether personal jurisdiction is present. Id. If personal jurisdiction is present, the party must be joined. Id. If personal jurisdiction is not present, the court must take the third step of analyzing the factors in Fed.R.Civ.P. 19(b) to determine whether the action may proceed without that party or whether the action must be dismissed. Id. Defendants do not believe that it is necessary to analyze whether the case should be dismissed pursuant to Fed.R.Civ.P. 19(b) because the Court can exercise personal jurisdiction over CMS. Courts have exercised jurisdiction over a variety of federal administrative agencies pursuant to Fed.R.Civ.P. 19. See, e.g., Chicago Teachers Union v. Johnson, 639 F.2d 353, 358 (7th Cir. 1980) (ordering federal Secretary of Labor joined pursuant to Fed.R.Civ.P. 19(a)); Ford v. Kreachbaum, 1992 WL 752897 at *9 (ordering federal
6

Department of Agriculture joined pursuant to Fed.R.Civ.P. 19(a); Lopez v. Arraras, 606 F.2d 347, 353 (1st Cir. 1979) (ordering federal Department of Housing and Urban Development joined pursuant to Fed.R.Civ.P. 19(a)). Only if Plaintiffs refuse to consent to joining CMS should the Complaint must be dismissed pursuant to Fed.R.Civ.P. 12(b)(7).
2. CMS Must Be Joined As A Defendant. CMS must be joined because: 1) complete relief cannot be afforded without CMS’ presence; and 2) CMS has a financial and policy stake in the outcome of this case and disposition of the case without CMS creates a risk of inconsistent obligations. CMS must be joined to provide complete relief because Defendants cannot pay for Medicaid services to the Plaintiff children without CMS. Medicaid services are paid by a combination of federal and state funds. See Alexander v. Choate, 469 U.S. 287, 290 n.1 (1985). CMS is responsible for paying the federal portion of Medicaid services. CMS’ share of the payment varies depending on the particular service, but generally ranges from 50% to 83% of amount of the service. See Arizona Health Care Cost Containment System v. McClellan, 508 F.3d 1243, 1246 (9th Cir. 2007); 42 U.S.C. §1396d(b). If the Court enjoins the new rules and determines that Plaintiffs are entitled to the services they seek, then Defendants will be required to pay for those services. But CMS will not be required to do so unless it is joined as a party. In those circumstances, Defendants would be on the hook for millions of dollars, but CMS will not be required to provide any federal funding. Joinder is appropriate in such a situation. See Lopez, 606 F.2d at 352 (Court required joinder of Secretary of U.S. Dept. of Housing and Urban Development when Secretary had the “final say as to the availability of requested funds.” Without the Secretary, any relief would be “hollow” and incomplete.).
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Defendants face a very real risk of being Court-ordered payment and denied federal funding. ODJFS has already requested federal funding for services furnished to Plaintiff children by SBSA and CMS has “deferred” payment (i.e., not paid) for such services on the grounds that they are “habilitative” and therefore not covered by Medicaid. See March 21, 2008 letter from CMS to Defendant Helen Jones-Kelley, attached as Ex. 4; October 28, 2005 letter from CMS to former ODJFS Director Barbara Riley (explaining habilitative services not covered by Medicaid and denying ODJFS’ request of program providing habilitative services) (attached as Ex. 5).5 The Court can consider these materials without converting this Motion into a summary judgment motion. See, e.g., Colon v. Gonzalez, 2008 U.S. Dist. LEXIS 23182 at *4 (Dist. P.R. 2008) (a party moving pursuant to Fed.R.Civ.P. 19 may present, and the court may consider, evidence outside the pleadings) (attached as Ex. 6).
The fact that the deferral decision is not a final action to withhold federal funding does not preclude joinder. Fed.R.Civ.P. 19 was designed to address practical considerations – not legal formalities. Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 117 n.12 (1968) (noting that the Committee revising Fed.R.Civ.P. 19 stressed that motions be reviewed on “practical consideration” and “particular consequences of the proceeding.”). The practical reality in this case is that CMS’ concerns about the propriety of SBSA’s services are significant enough that it has taken the first step in withholding $496,121 of federal funds. And that amount reflects federal funding for services furnished by SBSA for just one quarter of one year. See Ex. 4. It is likely that CMS will examine other quarters and withhold millions of dollars of federal funding. If that happens, Defendants could be faced with the conflicting obligations of complying with a Court order requiring payment for services furnished to Plaintiff children and
5 Habilitative services are covered when provided through Medicaid waivers and in institutional settings. However, Plaintiffs are not seeking any services through waivers or in institutional settings.
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complying with a CMS decision denying payment for those same services (and possibly even an obligation to recover payments for past services furnished to Plaintiff children by SBSA). There is therefore a “substantial risk” that proceeding without CMS will result in inconsistent obligations. This provides an alternate basis for requiring joinder. See Fed.R.Civ.P. 19(a)(2).
D. The Complaint Should Be Dismissed Because Plaintiffs Have Not Alleged A Right Enforceable Through 42 U.S.C. §1983.
In order to state a valid §1983 claim, 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 (1997) (citing Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 106 (1989). The plaintiff has the burden of establishing that the statute at issue confers a “right” within the meaning of §1983. To carry this burden, a plaintiff must show that: 1) the statutory provision in question is intended to benefit him; 2) the provision embodies a binding obligation on the governmental unit and not merely a congressional preference for a certain kind of conduct; and 3) the interest asserted is not so vague or amorphous that it is beyond the competency of the judiciary to enforce. Blessing, 520 U.S. at 340341; Clark v. Portage County, 281 F.3d 602, 603 (6th Cir. 2002). In order to show that statutory a provision is intended to benefit him, a plaintiff must show an “individual entitlement” that is “unambiguously conferred” through the use of rights-creating language. See Gonzaga Univ. v. Doe, 536 U.S. at 283-284, 287 (2002). A statute with an “aggregate focus,” unconcerned with whether the needs of the particular plaintiff have been satisfied, is insufficient. See Gonzaga, 536 U.S. at 288. The statute must be phrased in terms of the persons benefited and use individual-focused terminology. Gonzaga, 536 U.S. at 287.
Read liberally, the Complaint alleges that Plaintiffs are seeking to enforce rights found in 42 U.S.C. §§1396a, 1396a(a)(43), 1396d(a), 1396d(a)(4)(B), 1396d(a)(6), 1396d(a)(13), 1396d(r)(5), and/or “the Medicaid Act,” without reference to any particular provision of that Act.
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Complaint at ¶¶ 46, 50, 73, and 85-87. But these sections do not give Plaintiffs a “right” to the services they seek – at least not one that is enforceable through 42 U.S.C. §1983.
1. 42 U.S.C. §1396d Does Not Create Rights Enforceable Through 42 U.S.C. §1983.
None of the sections of 42 U.S.C. §1396d cited by Plaintiffs create rights that are enforceable through 42 U.S.C. §1983. Those sections contain definitions only. See 42 U.S.C. §§1396d (entitled “definitions”), 1396d(a) (“the term ‘medical assistance’ means . . . ”), 1396d(r) (“the term ‘early periodic screening, diagnostic, and treatment services means the following items and services . . . ”). As such, they cannot create enforceable rights. See A.M.H. v. Hayes, 2004 U.S. Dist. LEXIS 27387 at *21 (S.D. Ohio 2004) (holding that 42 U.S.C. §1396d(a)(19) and §1396(d)(r)(5) do not create “private rights, or private causes of action” because they are “simply definitional”) (attached as Ex. 7); Health Care For All, Inc. v. Romney, 2004 U.S. Dist. LEXIS 26470 at *15 (Dist. Mass 2004) (holding that 42 U.S.C. §1396d(a)(4)(B) and §1396d(r) cannot be enforced through 42 U.S.C. §1983 because those “definitions do not articulate an obligation to be met” by the State) (attached as Ex. 8). See also, 31 Foster Children v. Bush, 329 F.3d 1255, 1271 (11th Cir. 2003) (holding definitions in federal adoption act do not create rights enforceable through 42 U.S.C. §1983 and citing other cases). Cases holding otherwise have not applied Gonzaga’s standards to these definitions and explained how definitions create show an “individual entitlement” that is “unambiguously conferred” through the use of rights-creating language. See, e.g., Pediatric Specialty Care Network v. Arkansas, 443 F.3d 1005, 1016 (8th Cir. 2006) (concluding, in dicta,6 that 42 U.S.C. §1396d(a)(13) creates rights).
6 The Eighth Circuit explained that decision was made based on the law-of-the-case doctrine because Gonzaga was not an intervening decision of a superior tribunal. Pediatric Specialty Care Network, 443 F.3d at 1014. Therefore, the Eighth Circuit’s statements regarding Gonzaga and rights pursuant to 42 U.S.C. §1396d are dicta.
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2. An Allegation That 42 U.S.C. §1396a Or “the Medicaid Act,” Without Citation To A Subsection, Is Insufficient.
Plaintiffs cannot claim “rights” through 42 U.S.C. §1396a, in the abstract. Blessing, supra, requires plaintiffs to set forth the specific federal right, privilege or immunity that is allegedly being violated. Blessing, 520 U.S. 239, 242. 42 U.S.C. §1396a is a large statute, comprised of many subparts. Some of these subparts create rights enforceable through 42 U.S.C. §1983 and some do not. Without identifying which part of 42 U.S.C. §1396a is at issue, Defendants cannot meaningfully respond to the alleged violation and the Court cannot determine whether the section in questions creates enforceable rights pursuant to Blessing and Gonzaga. Therefore, Plaintiffs’ claims alleging violations of 42 U.S.C. §1396a and “the Medicaid Act” must be dismissed. See National Child Support v. Hayes, 2005 U.S. Dist. LEXIS 9355 at *13-14 (S.D. Ohio, 2005) (dismissing 42 U.S.C. §1983 claim because plaintiff failed to identify specific statute it alleged defendant violated) (attached as Ex. 9).
3. 42 U.S.C. §1396a(a)(43) Does Not Confer Rights That Plaintiffs Seek To Enforce.
42 U.S.C. §1396a(a)(43) does not grant Plaintiffs a right to the relief they seek in this case. That statute states that State Medicaid assistance plans must do four things: 1) inform appropriate individuals of the availability of early periodic screening, diagnosis, and screening (“EPSDT”) services and the need for age-appropriate immunizations; 2) provide or arrange for the provision of screening services in all cases where they are requested; 3) arrange for “corrective treatment” the need for which is disclosed by such child health screening services; and 4) report certain information to the Secretary of the Department of Health and Human Services. 42 U.S.C. §1396a(a)(43)(A) – (D). That statute does not obligate Defendants to provide or pay for the
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services defined in 1396d(a) (defining “medical assistance”), 1396d(a)(4)(B) (same), 1396d(a)(6)(same), 1396d(a)(13)(same), or 1396d(r)(5) (defining “EPSDT services”).
The Sixth Circuit has held that 42 U.S.C. §1396a(a)(43) creates rights enforceable through 42 U.S.C. §1983. See Westside Mothers v. Olszewski, 454 F.3d 532, 540 (6th Cir. 2006). But the “right” found under 42 U.S.C. §1396a(a)(43) in that case was the right to be effectively informed of the availability of EPSDT services. See Westside Mothers, 454 F.3d at 544. In this case, Plaintiffs seek services and/or payment for services alleged to be “medical assistance” and/or “EPSDT services.” 42 U.S.C. §1396a(a)(43) does not confer rights to those services. If Plaintiffs wish to allege that other statutes give them the right to such services, Plaintiffs must amend the Complaint and identify such sections so that their claims are clearly stated for the record and Defendants have an opportunity to test the adequacy of those allegations before this Court and on appeal, if necessary.
E. The Complaint Should Be Dismissed To The Extent It Seeks To Compel Defendants To Furnish Actual Health Care Services.
The Complaint should be dismissed to the extent that it seeks an order requiring Defendants to furnish health care services. See Compl. at Request for Relief (A). Medicaid laws do not require States to furnish actual health care or other services. Westside Mothers v. Olszewski, 454 F.3d 532, 540 (6th Cir. 2006); Bruggeman v. Blagovitch, 324 F.3d 906, 910 (7th Cir. 2003); Mandy R. v. Owens, 464 F.3d 1139, 1146 (10th Dist. 2006).
F. Plaintiffs Cannot Sue For Alleged Violations Of Regulations Through 42 U.S.C. §1983.
Plaintiffs claim that Defendants violated 42 C.F.R. § 440.130(d). Compl. at ¶91. That claim must be dismissed, along with any other claims based on alleged violations of regulations. Until recently, it was questionable whether regulations could create rights enforceable through
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42 U.S.C. §1983. Federal circuit courts were split on this issue. The U.S. Courts of Appeals for the Third, Fourth, Ninth, and Eleventh Circuits held that federal regulations could not create rights enforceable through 42 U.S.C. §1983. Save Our Valley v. Sound Transit, 335 F.3d 932, 936 (9th Cir. 2003). The U.S. Courts of Appeals for the Sixth Circuit and the D.C. Circuit held that federal regulations could create rights enforceable through 42 U.S.C. §1983. See Loschiavo v. City of Dearborn, 33 F.3d 548 (6th Cir. 1994) Samuels v. District of Columbia, 770 F.2d 184 (D.C. Cir. 1985). However, both Loschiavo and Samuels were decided before the U.S. Supreme Court cases Alexander v. Sandoval, 532 U.S. 275 (2001), and Gonzaga Univ. v. Doe, 536 U.S. 273 (2002). Read together, Sandoval and Gonzaga clearly hold that federal regulations cannot create rights enforceable through 42 U.S.C. §1983.
In Sandoval, the U.S. Supreme Court considered allegations that the Alabama Department of Public Safety violated Title VI and its implementing regulations by administering its driver’s license examination in English only. Sandoval, 532 U.S. at 278-279. The Sandoval plaintiffs claimed that the implementing regulations created an implied right of action that permitted them to sue to enforce the implementing regulations. Id. The Sandoval Court rejected this claim, stating:
The judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy. Statutory intent on this latter point is determinative. Sandoval, 532 U.S. at 286-287 (emphasis added) Language in a regulation may invoke a private right of action that Congress through statutory text created, but it may not create a right that Congress has not. Sandoval, 532 U.S. at 291 (emphasis added). It is most certainly incorrect to say that language in a regulation can conjure up a private cause of action that has not been authorized by Congress. Agencies may play the sorcerer’s apprentice, but not the sorcerer himself. Sandoval, 532 U.S. at 291.
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Like substantive federal law itself, private rights of action to enforce federal law must be created by Congress. Sandoval, 532 U.S. at 286. These statements clearly show that federal regulations cannot create implied rights of action. Such rights must be created by Congress, through language in federal statutes. The U.S. Supreme Court explicitly adopted this logic and applied it to §1983 cases in Gonzaga. The Gonzaga Court stated: We now reject the notion that our implied right of action cases are separate and distinct from our §1983 cases. To the contrary, our implied right of action cases should guide the determination of whether a statute confers rights enforceable under §1983. Gonzaga, 536 U.S. at 283 (emphasis added). We have recognized that whether a statutory violation may be enforced through 1983 “is a different inquiry than that involved in determining whether a private right of action can be implied from a particular statute.” But the inquiries overlap in one meaningful respect – in either case we must first determine whether Congress intended to create a federal right. Gonzaga, 536 U.S. at 283 (citation omitted and emphasis added). Since Sandoval and Gonzaga, at least one U.S. Supreme Court case has explicitly stated that federal statutes – and not federal regulations – can create rights that are individually enforceable through 42 U.S.C. §1983. See City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 120 (2005) (“Accordingly, to sustain a §1983 action, the plaintiff must demonstrate that the federal statute creates an individually enforceable right in the class of beneficiaries to which he belongs.”). Other circuit courts have followed suit. The First and Fifth Circuits have recognized that Sandoval and Gonzaga stand for the proposition that federal regulations cannot create rights that are enforceable through 42 U.S.C. §1983. S.D. v. Hood, 391 F.3d 581, 603 (5th Cir. 2004). See also
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Bonano v. East Caribbean Airline Corp., 365 F.3d 81, 84 (1st Cir. 2004).7 See also, Save Our Valley, 335 F.3d at 943 (“Plaintiffs suing under §1983 must demonstrate that a statute – not a regulation – confers an individual right.”).
The Sixth Circuit has retreated from its position in Loschiavo by stating that Sandoval and Gonzaga “have cabined Loschiavo’s holding” and implied that it would have overruled Loschiavo, but that a procedural rule prevented it from doing so. See Caswell v. City of Detroit Housing Comm., 418 F.3d 615, 618 (6th Cir. 2005). In a footnote following its statement that Sandoval and Gonzaga “cabined” the Loschiavo holding, the Sixth Circuit stated that it could not overrule the decision of another panel [i.e., the Loschiavo panel], but that it could modify prior holdings when an intervening opinion of the U.S. Supreme Court requires it to do so. Caswell, 418 F.3d at 618, n. 1. Furthermore, district court cases from within the Sixth Circuit indicate that the Sandoval and Gonzaga cases have overruled the Sixth Circuit’s former holdings that federal regulations can create rights that are enforceable through 42 U.S.C. §1983. See, e.g., Great Lakes Consortium v. Michigan, 480 F. Supp.2d 977, 984 (W.D. Mich. 2007) (“As the courts recently have made clear, however, an enforceable right may not be inferred from regulations alone.”); Almendares v. Palmer, 284 F. Supp.2d 799, 809 (N.D. Ohio 2003)“[r]egulations cannot be used as a basis for creating a private cause of action unless there is a statute that establishes such a right.”); Johnson v. City of Detroit, 319 F. Supp.2d 756, 761 n.4 (E.D. Mich. 2004 (“As discussed in more detail below, the Sixth Circuit’s rule which holds that regulations alone can create enforceable federal rights under §1983 may no longer be viable in light of recent Supreme Court decisions” (citing Gonzaga and Sandoval)).
7 This non-1983 case held that federal regulations cannot create a private right of action. However, because Gonzaga explicitly stated that private-right-of-action cases should guide the determination of whether a statute confers rights enforceable through §1983, this case is relevant to the discussion.
15

In short, it is clear that after Gonzaga and Sandoval, federal regulations cannot create
rights that are enforceable through §1983. And, of course, no state laws can enforced through
§1983.8 Therefore, all §1983 claims alleging violations of state laws or federal regulations must
be dismissed.
IV. CONCLUSION
The Court should dismiss the Complaint because Plaintiffs have not identified a federal
statute creating “rights” that Plaintiffs seek to enforce through 42 U.S.C. §1983. If the Court
does not dismiss the Complaint, it should dismiss PLEAS as a party, dismiss Plaintiffs’ claims
based alleged violations of state or federal regulations, and dismiss the Complaint to the extent it
seeks to compel Defendant to furnish actual health care or other services.
Respectfully submitted,
THOMAS R. WINTERS First Assistant Attorney General
/s/ Ara Mekhjian ARA MEKHJIAN (0068800) Senior Assistant Attorney General Health and Human Services Section 30 East Broad Street, 26th Floor Columbus, Ohio 43215-3400 Telephone: (614) 466-8600 Facsimile: (866) 478-7791 amekhjian@ag.state.oh.us
8 The Eleventh Amendment prevents federal courts from awarding monetary or injunctive relief for alleged violations of state law asserted against states, their instrumentalities, or state officials in their official capacities. Pennhurst v. Halderman, 465 U.S. 89, 103-106 (1984). See also, Johns v. Supreme Court of Ohio, 753 F.2d 524, 526 (6th Cir. 1985 (“Case law is legion that the Eleventh Amendment to the United States Constitution directly prohibits federal courts from ordering state officials to conform their conduct to state law.”); Dvorak v. Wright State Univ., 1997 U.S. Dist. LEXIS 23804 at *35 (S.D. Ohio 1997) (“The law is well-established that the Eleventh Amendment bars federal courts from awarding either monetary or injunctive relief in regard to supplemental statelaw claims asserted against states, their instrumentalities, and state officials sued in their official capacities.”) (attached as Ex. 10). In this case, Defendants are sued in their official capacities only. Therefore, they are considered instrumentalities of the State. See McCrary v. Ohio Dept. of Hum. Servs., 2000 U.S. App. LEXIS 19212 at *6 (6th Cir. 2000) (attached as Ex. 11.
16

Counsel for Helen E. Jones-Kelley, Director of the Ohio Department of Job and Family Services
/s/ Roger Carroll ROGER F. CARROLL (0023142) Principal Assistant Attorney General Health and Human Services Section 30 East Broad Street, 26th Floor Columbus, Ohio 43215-3400 Phone: (614) 466-8600 Facsimile: (614) 466-6090 rcarroll@ag.state.oh.us Counsel for Sandra Stephenson, Director of the Ohio Department of Mental Health
CERTIFICATE OF SERVICE I hereby certify that on May 19th, 2008, a copy of the foregoing Motion to Dismiss was filed electronically. Notice of this filing will be sent to all parties by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s system.
/s/ Ara Mekhjian ARA MEKHJIAN Assistant Attorney General
17

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

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

Case No. 2:08-cv-421 Judge Graham Magistrate Judge King

ORDER The Defendants have moved this Court to order the Plaintiffs to join the Federal Centers for Medicare and Medicaid Services (CMS) as a necessary party under Fed. R. Civ. 19(a). The Court has considered the positions of the parties on the issue and has concluded that CMS is a necessary party under Fed. R. Civ. P. 19(a). The Plaintiffs are hereby ordered to amend their complaint to name CMS as a defendant forthwith. The Plaintiffs shall also immediately notify CMS of the pending motion for temporary restraining order.

IT IS SO ORDERED.

S/ James L. Graham James L. Graham UNITED STATES DISTRICT JUDGE

Date: June 20, 2008

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

PARENTS LEAGUE FOR EFFECTIVE AUTISM SERVICES, et al.,

Plaintiffs

Case No. 2:08-cv-421

v

Judge Graham

HELEN JONES-KELLEY, et al

Magistrate Judge King

Defendants.

Order
On August 27, 2008, Defendant Kerry Weems, in his official capacity as Acting Administrator, Center for Medicare and Medicaid Services, filed a Rule 21 Motion to Drop Defendant Weems as a party (doc. 50). By its Order dated July 17, 2008, the court has stayed all further proceedings in this matter pending a decision by the Sixth Circuit Court of Appeals. The Order staying the case applies to Defendant Weems’ motion and accordingly, the motion will not be considered at this time. If necessary, the court will establish a briefing schedule on Defendant Weems’ motion after the Sixth Circuit decision.
IT IS SO ORDERED.

Date: September 2, 2008

S/ James L. Graham James L. Graham UNITED STATES DISTRICT JUDGE

 
 Case: 2:08-cv-00421-JLG-NMK Doc #: 27 Filed: 06/24/08 Page: 1 of 16 PAGEID #: 679

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

PARENTS’ LEAGUE FOR EFFECTIVE AUTISM SERVICES (PLEAS)

Case No. 2:08-cv-421

AND

X.C., a minor, by and through his parent, A.C.;
AND

Judge Graham Magistrate Judge King

W.G., a minor, by and through his parent K.G.;

AND

K.W., a minor by and through his parent A.W.,
Plaintiffs,

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

vs.

Helen Jones-Kelley, in her official capacity as Director of the Ohio Department of Job and Family Services

AND

Sandra Stephenson, in her official capacity as Director of the Ohio Department of Mental Health,

AND

Kerry Weems, in his official capacity as Acting Administrator, Centers for Medicare & Medicaid Services,

Defendants.

Case: 2:08-cv-00421-JLG-NMK Doc #: 27 Filed: 06/24/08 Page: 2 of 16 PAGEID #: 680
AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
INTRODUCTION Plaintiffs are made up of an association of parents and families as well as individual parents and their children who have a diagnosis of a developmental disability on the autism spectrum. Plaintiff children are Medicaid eligible. They currently receive medically necessary services funded through Medicaid from Step By Step Academy (SBSA) in Worthington, Ohio. Defendant Jones-Kelley, in her official capacity as Director of the Ohio Department of Job and Family Services, and Defendant Stephenson, in her official capacity as Director of the Ohio Department of Mental Health, have promulgated rules that govern the Medicaid program in Ohio. These rules limit the services to be paid for by Medicaid in violation of federal law. As a result, providers authorized by the state to deliver intensive behavioral health services to children will lack the authority, capacity and funds necessary to provide ongoing, intensive community based services to the Plaintiff children. Plaintiffs seek injunctive and declaratory relief to prevent the loss or reduction of medically necessary services to which they are entitled under federal law.
JURISDICTION AND VENUE 1. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 which provides for original
jurisdiction over civil suits arising under the Constitution, laws or treaties of the United States and against Defendants acting under color of state law pursuant to 42 U.S.C. § 1983. 2. This Court also has jurisdiction under 28 U.S.C. §§ 1343(3) and (4) which provide for original jurisdiction of the Court in all suits authorized by 42 U.S.C. § 1983. Plaintiffs seek to enforce the rights guaranteed them under the United States Constitution and the federal Medicaid laws, 42 U.S.C. §1396 et. seq. and the implementing federal regulations.
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3. In addition, this Court has jurisdiction over the Plaintiffs’ claims for declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202 and Rule 57 of the Federal Rules of Civil Procedure.
4. Venue is proper in the Southern District of Ohio, Eastern Division, because the defendants are located in this district within the meaning of 28 U.S.C. § 1391(b) and because the events, acts and omissions giving rise to the Plaintiffs’ claims occurred in this district.
PARTIES PLAINTIFFS 5. Plaintiff Parents’ League for Effective Autism Services (PLEAS) is an association of parents and families and children who receive services from Step By Step Academy under Medicaid. Membership of PLEAS includes both named Plaintiffs and other parents, families and children not individually named in this complaint. 6. Plaintiff PLEAS children face losing or having a severe reduction of medically necessary services when the rules promulgated by Defendants become effective on July 1, 2008. 7. Without these services, PLEAS children are at risk of a regression in skills and an increase in unwanted behaviors. Further, PLEAS children will have an increased chance of being placed in a segregated special education classroom or institution. 8. PLEAS parents face loss of funding for these medically necessary services when Defendants’ rules become effective. PLEAS parents and families will not be able to afford these necessary services for their children. 9. Plaintiff A.C. is the parent and natural guardian of Plaintiff X.C. 10. Plaintiff X.C. is a six year old boy who was diagnosed with autism spectrum disorder at eighteen months old. 11. X.C. and his parent A.C. live in Logan, Ohio.
3

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12. X.C. is Medicaid eligible. He receives community mental health services through Medicaid from Step By Step Academy in Worthington, Ohio.
13. X.C. receives 35-40 hours per week of one-to-one intensive behavioral services year round from SBSA to correct and ameliorate his autism.
14. These services are medically necessary for X.C. 15. He is at risk of losing or having a severe reduction of these medically necessary services
after June 30, 2008 when the rules promulgated by Defendants are scheduled to become effective. 16. Without these services, X.C. faces a regression in skills and an increase in aggressive and dangerous behaviors. Additionally, X.C. will have an increased chance of being placed in a segregated special education classroom or institution. 17. Plaintiff K.G. is the parent and natural guardian of Plaintiff W.G. 18. Plaintiff W.G. is a six year old boy who was diagnosed with autism spectrum disorder at age two. 19. W.G. and his parent K.G. live in Westerville, Ohio. 20. W.G. is Medicaid eligible. He receives community mental health services through Medicaid from Step By Step Academy in Worthington, Ohio. 21. W.G. receives 35-40 hours per week of one-to-one intensive behavioral services year round from SBSA to correct and ameliorate his autism. 22. These services are medically necessary for W.G. 23. He is at risk of losing or having a severe reduction in these medically necessary services after June 30, 2008 when the rules promulgated by Defendants are scheduled to become effective.
4

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24. Without these services, W.G. faces a regression in skills and an increase in dangerous behaviors. Additionally, W.G. will have an increased chance of being placed in a segregated special education classroom or institution.
25. Plaintiff A.W. is the parent and natural guardian of Plaintiff K.W. 26. Plaintiff K.W. is a seven year old boy who was diagnosed with autism spectrum disorder
at age two. 27. K.W. and his parent A.W. live in Westerville, Ohio. 28. K.W. is Medicaid eligible. He receives community mental health services through
Medicaid from Step By Step Academy in Worthington, Ohio. 29. K.W. receives 35-40 hours per week of one-to-one intensive behavioral services year
round from SBSA to correct and ameliorate his autism. 30. These services are medically necessary for K.W. 31. He is at risk of losing or having a severe reduction in these medically necessary services
after June 30, 2008 when the rules promulgated by Defendants are scheduled to become effective. 32. Without these services, W.G. faces a regression in skills and an increase in dangerous behaviors. Additionally, W.G. will have an increased chance of being placed in a segregated special education classroom or institution.
DEFENDANTS 33. Defendant Helen Jones-Kelley, as director of Ohio Department of Job and Family
Services (ODJFS), is responsible for the administration of the Medicaid program in Ohio.
5

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34. ODJFS is the single state agency for the Medicaid program in the State of Ohio and is required, pursuant to O.R.C. § 5111.01 and O.A.C. § 5101:1-37-01, to provide medical assistance in accordance with the federal Medicaid statute, Title XIX of the Social Security Act, 79 Stat. 286 (1965).
35. As the executive head of ODJFS under O.R.C. § 5101.02, Defendant Jones-Kelley is responsible for the supervision and operation of the Medicaid program in Ohio in accordance with the applicable federal Medicaid statutes and regulations.
36. Defendant Jones-Kelley is also responsible for ensuring that other state and county agencies and subdivisions with whom ODJFS contracts to administer the Medicaid program comply with all applicable Medicaid laws and policies pursuant to O.R.C. § 5111.01.
37. Defendant Jones-Kelley has acted and continues to act at all times relevant hereto in her official capacity and under color of state law.
38. Defendant Sandra Stephenson is the Director of Ohio Department of Mental Health (ODHM).
39. As chief executive and administrative officer of ODMH under O.R.C. § 5119.01, Defendant Stephenson is responsible for adopting rules that establish standards for services provided by community mental health facilities. Defendant Stephenson has the authority to enter into contracts and other agreements.
40. As directors, Defendant Jones-Kelley and Defendant Stephenson entered into an interagency agreement between ODJFS and ODMH for the purpose of establishing a subrecipient relationship between the entities to implement 42 C.F.R. § 431 Part M and to provide behavioral health services to people who are eligible for Ohio Medicaid benefits
6

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under Title XIX of the Social Security Act. Interagency Agreement Between ODJFS and ODMH, Article I, Section A. 41. ODMH is considered the sub-recipient of the federal funds received from ODJFS, and mental health service providers are considered sub-recipients of the funds received from ODMH. 42. ODJFS, in consultation with ODMH, promulgates the Ohio Administrative Code rules that govern the Medicaid program. 43. Defendant Stephenson has acted and continues to act at all times relevant hereto in her official capacity and under color of state law. 44. Defendant Kerry Weems is the Acting Administrator of the Centers for Medicare & Medicaid Services (CMS), an agency within the United States Department of Health and Human Services which is responsible for, inter alia, administering the Medicaid program and, more specifically, providing the federal portion of payment for Medicaid services. 45. Medicaid is a federal program administered by the states in which the federal Medicaid authority pays a portion of the cost (known as federal financial participation or "FFP") and that portion is "matched" by the participating state. 46. Defendant Weems and CMS currently provide Ohio with approximately 60% federal financial participation as its share of Ohio's Medicaid costs. 47. Defendant Weems is joined as a necessary party under Fed. R. Civ. 19(a) pursuant to this Court's Order dated June 20, 2008. 48. Defendant Weems is sued in his official capacity only.
FACTS
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49. Title XIX of the Social Security Act, 79 Stat. 286 (1965), (“the Medicaid Act”), at 42 U.S.C. Sections 1396 et seq., was enacted as a joint obligation by the federal government and participating states to provide medical assistance to low income and needy individuals who would otherwise be unable to pay for necessary health care. States are not required to participate, but once a state elects to participate in the program, it is bound by the federal law and regulations set forth in the Social Security Act and its implementing regulations.
50. Title XIX of the Social Security Act lists twenty-seven services to be provided to individuals who meet the qualifications listed in 42 U.S.C. § 1396d(a)(i)-(xiii).
51. 42 U.S.C. § 1396a(a)(43) requires participating states to include in their State Medicaid Plan a provision for the Early, Periodic Screening, Diagnosis and Treatment (EPSDT) of all Medicaid eligible children under the age of twenty-one.
52. The federal requirements for EPSDT are specifically detailed and require states to provide “such other necessary health care, diagnostic services, treatment, and other measures to correct or to ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the State plan.” 42 U.S.C. § 1396d(r)(5).
53. The State of Ohio participates in the Federal Medicaid program, including the EPSDT provisions.
54. Ohio’s EPSDT program is operated under the name “Healthchek” and is codified at O.A.C. §§ 5101:3-14-01 to 5101:3-14-22.
55. Plaintiff children are Medicaid eligible individuals under age twenty-one who are eligible for EPSDT services set forth under the federal Medicaid Act, 42 U.S.C. § 1396a(a)(43) and
8

Case: 2:08-cv-00421-JLG-NMK Doc #: 27 Filed: 06/24/08 Page: 9 of 16 PAGEID #: 687
42 U.S.C. § 1396d(r) and Ohio’s Healthchek Program set forth at O.A.C. §§ 5101:3-14-01 through 5101:3-14-22. 56. Plaintiff children have all been diagnosed with a developmental disability on the autism spectrum. 57. Autism is now seen as a spectrum disorder, “Autism Spectrum Disorder” (ASD). Autistic disorder, the full-blown condition, is one of five disorders falling under the umbrella of “Pervasive Developmental Disorder” (PDD), a category of neurodevelopmental disorders. PDD includes the disorders commonly diagnosed as Asperger's Disorder, Rett Syndrome, Childhood Disintegrative Disorder, and PDD - Not Otherwise Specified (PDD-NOS). 58. Autism is a complex neurodevelopmental disability that generally appears during the first three years of life. It impacts the normal development of the brain, resulting in impairments of social interaction, verbal and non-verbal and communication, leisure or play activities, and learning. Most often if untreated it results in lifelong mental retardation. 59. Plaintiff children receive medically necessary services, such as community mental health services, from Step By Step Academy (SBSA) located in Worthington, Ohio under Ohio’s Medicaid program. 60. SBSA is a nationally accredited and state certified community mental health agency dedicated to providing mental health services to children with autism. 61. Services provided by SBSA include full day center-based applied behavior analysis (ABA), psychological assessments and diagnosis, parent advocacy and resource information and home outreach services including one-to-one services. 62. Plaintiff children benefit from receiving these medically necessary services from SBSA. Benefits include increased IQ levels, reduction in developmental disabilities, decrease in
9

Case: 2:08-cv-00421-JLG-NMK Doc #: 27 Filed: 06/24/08 Page: 10 of 16 PAGEID #: 688
behavioral outbursts, increase in on-task behaviors, decrease in self-stimulation behaviors, increased communication skills, increased daily living skills such as toileting, dressing, food preparation, and a decreased chance of being placed in segregated special education classrooms or institutional settings. 63. The services provided by SBSA result in maximum reduction of physical and mental disabilities and restoration to the best possible functional level. 64. The services provided by SBSA to Plaintiff children are rehabilitative in nature. 65. The services provided by SBSA are recommended as a medical necessity for Plaintiff children by their physicians and / or other licensed practitioners. 66. In the past, Plaintiff children unsuccessfully tried to get these medically necessary services from other providers. 67. ODJFS requested federal funding for services provided to Plaintiff children by SBSA, but CMS has deferred payment to ODJFS for such claims because, according to CMS, they are not covered by Medicaid. 68. Plaintiff X.C. was told by several service providers that these were not appropriate placements for him and that he should not return due to his severely dangerous and aggressive behaviors. 69. Plaintiff K.W. was in a classroom in the Worthington City School District. If K.W. was being quiet and not acting out, he was left alone. There was not any interaction between K.W. and his teacher or other children. 70. Intensive behavioral intervention is a rehabilitative service with both medical and remedial components under 42 U.S.C. § 1396d(a)(13).
10

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71. The Medicaid Act gives Plaintiff children an enforceable right to intensive behavioral intervention services.
72. Defendants promulgated rules, O.A.C. §§ 5101:3-27-02 and 5122-29-17, to be effective July 1, 2008.
73. O.A.C. § 5101:3-27-02 (eff. 7/1/08) lists services that are required to be rehabilitative in nature in order to be reimbursable under the State Medicaid plan as community mental health services.
74. Community psychiatric supportive treatment (CPST) service is listed as a community mental health service under O.A.C. § 5101:3-27-02 (eff. 7/1/08).
75. O.A.C. § 5101:3-27-02(A) (eff. 7/1/08) states that “[r]ehabilitative services provide for the maximum reduction of mental illness and are intended to restore an individual to the best possible functional level.”
76. O.A.C. § 5122-29-17 (eff. 7/1/08) defines CPST service as a rehabilitative service. 77. Defendants’ rules narrow the definition and eligibility for CPST services by creating an
overly restrictive definition of ‘rehabilitative’ in violation of federal Medicaid provisions. 78. Defendants’ rules limit ‘rehabilitative’ services to individuals with “mental illness." This
definition is more restrictive than the federal regulations because it excludes other physical and mental disabilities. 79. Plaintiff children will face a reduction or total loss of the services provided to them by SBSA in violation of 42 U.S.C. §§ 1396a, 1396d(a) and 1396d(r)(5). 80. Plaintiffs have not found nor has the State offered services from an alternative provider.
11

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81. Defendants’ rules are contrary to the State’s obligation to provide medically necessary services to children that correct or ameliorate conditions under the federal Medicaid requirements of EPSDT. CLAIM FOR RELIEF FIRST CAUSE OF ACTION
82. Plaintiffs restate and incorporate by reference paragraphs 1 through 81 as if fully rewritten herein.
83. Defendants have an obligation under 42 U.S.C. § 1396a(a)(10) to provide medical assistance, as defined in 42 U.S.C. §§ 1396d(a), to Plaintiff children.
84. Medical assistance includes payment for EPSDT services. 42 U.S.C. § 1396d(a)(4)(B). EPSDT provides for “such other necessary health care, diagnostic services, treatment, and other measures … to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the State plan.” 42 U.S.C. § 1396d(r)(5).
85. Defendants’ violated 42 U.S.C. § 1396a(a)(10) by failing to provide for making medical assistance available under the sections cited in this cause of action to all Medicaid-eligible individuals under the age of 21.
86. As a result of Defendants’ violation, Plaintiff children will suffer a loss or reduction in medically necessary services provided to them under Medicaid.
87. Plaintiffs bring this action under 42 U.S.C. § 1983 because Defendants Stephenson and Jones-Kelley , acting under color of law, are depriving Plaintiffs of their rights under the laws of the United States by promulgating rules which reduce services that are guaranteed to
12

Case: 2:08-cv-00421-JLG-NMK Doc #: 27 Filed: 06/24/08 Page: 13 of 16 PAGEID #: 691
children under the EPSDT provisions in accordance with the federal Medicaid Act and implementing regulations.
SECOND CAUSE OF ACTION 88. Plaintiffs restate and incorporate by reference paragraphs 1 through 87 as if fully
rewritten herein. 89. Pursuant to 42 U.S.C. § 1396a(a)(43)(C), Defendants Stephenson and Jones-Kelley are
obligated to arrange for (directly or through referral to appropriate agencies, organizations, or individuals) providing corrective treatment for Plaintiffs. 90. Defendants’ rules, effective July 1, 2008, restrict the types of corrective treatment Plaintiffs can receive by narrowing the definition and scope of rehabilitative services that are eligible for payment under Medicaid. 91. As a result of Defendants’ violation, Plaintiff children will suffer a loss or reduction in medically necessary services provided to them under Medicaid. 92. Defendants’ failure to arrange for corrective treatment for Plaintiffs violates 42 U.S.C. § 1396a(a)(43)(C). 93. Plaintiffs bring this action under 42 U.S.C. § 1983 because these Defendants, acting under color of law, are depriving Plaintiffs of their rights under the laws of the United States by promulgating rules which reduce services that are guaranteed to children under the EPSDT provisions in accordance with the federal Medicaid Act and implementing regulations.
THIRD CAUSE OF ACTION 94. Plaintiffs restate and incorporate by reference paragraphs 1 through 93 as if fully
rewritten herein.
13

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95. Defendants are required to furnish medical assistance as defined in 42 U.S.C. § 1396d(a), including but not limited to EPSDT services under 42 U.S.C. §§ 1396d(a)(4)(B) and 1396d(r), with reasonable promptness. 42 U.S.C. § 1396a(a)(8).
96. Plaintiffs will not be receiving these services in a timely and /or reliable manner at all or to the extent necessary to correct or ameliorate their conditions once Defendants’ rules become effective July 1, 2008 because the rules limit services that are eligible for payment under Medicaid.
97. As a result of the change in rules, Defendants have failed to provide medical assistance with reasonable promptness in violation of 42 U.S.C. § 1396a(a)(8).
98. Plaintiffs bring this action under 42 U.S.C. § 1983 because Defendants Stephenson and Jones-Kelley, acting under color of law, are depriving Plaintiffs of their rights under the laws of the United States by promulgating rules which reduce services that are guaranteed to children under the EPSDT provisions in accordance with the federal Medicaid Act and implementing regulations. REQUEST FOR RELIEF
Plaintiffs respectfully request that this Court grant the following relief: A. Order Defendants Stephenson and Jones-Kelley to continue to provide and / or arrange
for medically necessary services, including 35-40 hours per week of applied behavior analysis, for Plaintiffs as determined by their physicians or other licensed practitioners; B. Immediately enjoin Defendants Stephenson and Jones-Kelley from enforcing their proposed rules, O.A.C. §§ 5101:3-27-02 and 5122-29-17, that fail to comply with the requirements of federal Medicaid law which require services to be provided to Plaintiffs;
14

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C. Declare that Defendants Stephenson's and Jones-Kelley’s rules violate Plaintiffs’ rights under the federal Medicaid law by as alleged in this Complaint, and by requiring that community mental health services be rehabilitative and limiting the types of services and definition of rehabilitative to reducing symptoms of mental illness;
D. Declare the Defendants Stephenson's and Jones-Kelley’s rules violate Plaintiffs’ rights under federal Medicaid law because the rules do not allow medically necessary services to be provided that correct or ameliorate defects and physical and mental illnesses and conditions;
E. Require Defendants Stephenson and Jones-Kelley to develop rules that comply with federal Medicaid law;
F. Immediately enjoin Defendant Weems to comply with the orders of this court related to federal Medicaid statutes and to cease all efforts to claim federal financial participation or make findings in regard to Ohio's Medicaid program that would be in conflict with the rulings of this Court, and to further enjoin him to approve payment of federal financial participation for medically necessary services to correct or ameliorate Plaintiff children's defects and physical and mental illnesses and conditions that are provided to Plaintiff children by any certified Medicaid provider chosen by the Plaintiffs or the members of the Plaintiff association;
G. Grant Plaintiffs’ recovery of reasonable attorney’s fees and costs in bringing this action; H. Grant Plaintiffs any and all other relief to which the Court believes they are entitled.
Respectfully submitted, /s/ Michelle F. Atkinson Michelle F. Atkinson, Trial Attorney (0079185) matkinson@olrs.state.oh.us
15

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/s/ Susan G. Tobin Susan G. Tobin, Of Counsel (0021725) stobin@olrs.state.oh.us
Ohio Legal Rights Service 50 West Broad Street, Suite 1400 Columbus, Ohio 43215 (614) 466-7264 (614) 644-1888 (fax) Counsel for Plaintiffs
Certificate of Service
This certifies that on June 24, 2008, a true copy of Plaintiffs’ Amended Complaint was filed electronically. Notice of this filing will be sent to all registered parties by operation of the Court’s electronic filing system. In addition, in accordance with F. R. Civ. P. 4, a copy has been sent by certified mail to the following:
Kerry Weems Acting Administrator Centers for Medicare and Medicaid Services U.S. Department of Health and Human Services 200 Independence Avenue, S.W. Washington, D.C. 20201
Mark Dalessandro, Deputy Chief, Civil Division mark.dalessandro@usdoj.gov U.S. Dept. of Justice 303 Marconi Boulevard Suite 200 Columbus, OH 43215 Tel: 614-469-5715 Fax: 614-469-2200
U.S. Attorney General Michael Mukasey U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530-0001
/s/ Susan G. Tobin Susan G. Tobin
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 Case: 2:08-cv-00421-JLG-NMK Doc #: 40 Filed: 07/01/08 Page: 1 of 2 PAGEID #: 1016

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

PARENTS LEAGUE FOR EFFECTIVE AUTISM SERVICES, et al.,

Plaintiffs

Case No. 2:08-cv-421

v.

Judge Graham

HELEN JONES-KELLEY, et al.,

Magistrate Judge King

Defendants.

AMENDED ORDER GRANTING PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
This cause came on for consideration of Plaintiffs’ Motion for Temporary Restraining Order and preliminary injunction. Plaintiffs seek preliminary relief against Defendant Helen Jones-Kelley, in her official capacity as Director of Job and Family Services, and Defendant Sandra Stephenson, in her official capacity as Director of Ohio Department of Mental Health, enjoining the implementation of proposed rules O.A.C. §§ 5101:3-27-02 and 5122-29-17 effective July 1, 2008.
The Court finds, as set forth in the memorandum and order of June 30, 2008 (doc. 37), that the Plaintiffs have shown good cause therefore, and it is hereby ORDERED that Defendants are preliminarily enjoined from implementing proposed rules O.A.C. §§ 5101:3-27-02 and 5122-29-17 effective July 1, 2008, and are to continue operating pursuant to those rules as they existed on June 30, 2008, until further order of the Court. Bond is dispensed with.
IT IS SO ORDERED.

Case: 2:08-cv-00421-JLG-NMK Doc #: 40 Filed: 07/01/08 Page: 2 of 2 PAGEID #: 1017 S/ James L. Graham James L. Graham UNITED STATES DISTRICT JUDGE
Date: July 1, 2008

 
 Case: 2:08-cv-00421-JLG-NMK Doc #: 49 Filed: 07/17/08 Page: 1 of 1 PAGEID #: 1219

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

PARENTS LEAGUE FOR EFFECTIVE AUTISM SERVICES, et al.,

Plaintiffs

Case No. 2:08-cv-421

v

Judge Graham

HELEN JONES-KELLEY, et al

Magistrate Judge King

Defendants.

Order On July 10, 2008, Defendants Helen Jones-Kelley and Sandra Stephenson filed a notice of appeal from this Court’s June 30, 2008 Order which granted the Plaintiffs’ motion for a preliminary injunction. The Court has considered the parties’ briefs on the issue of this Court’s jurisdiction during the pending appeal. The interests of judicial economy are best served by a stay during the appeal, and therefore the Court orders a stay on all further proceedings in this case until a decision is rendered by the Sixth Circuit Court of Appeals. This Order does not stay the preliminary injunction during the appeal.

IT IS SO ORDERED. Date: July 17, 2008

S/ James L. Graham James L. Graham UNITED STATES DISTRICT JUDGE

 
 Case: 2:08-cv-00421-JLG-NMK Doc #: 55 Filed: 08/03/09 Page: 1 of 21 PAGEID #: 1439

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 09a0523n.06

No. 08-3931
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

FILED
Jul 29, 2009
LEONARD GREEN, Clerk

PARENTS’ LEAGUE FOR EFFECTIVE AUTISM )

SERVICES; X.C., a minor by and through his parent, )

A.C.; W.G., a minor by and through his parent, K.G.; )

K.W., a minor by and through his parent, A.W.,

)

)

Plaintiffs-Appellees,

)

)

v.

)

)

HELEN E. JONES-KELLEY, in her official capacity )

as Director of the Ohio Department of Job and Family )

Services; SANDRA STEPHENSON, in her official )

capacity as Director of the Ohio Department of Mental )

Health,

)

)

Defendants-Appellants,

)

)

KERRY WEEMS, in his official capacity as Acting )

Administrator, Centers for Medicare & Medicaid )

Services,

)

)

Defendant.

)

)

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO

BEFORE: KENNEDY, GIBBONS, and ROGERS, Circuit Judges.
ROGERS, Circuit Judge. Defendants Helen Jones-Kelly, Director of the Ohio Department of Job and Family Services, and Sandra Stephenson, Director of the Ohio Department of Mental Health, appeal the district court’s grant of a preliminary injunction enjoining the implementation of
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two amended state administrative rules. The Parents’ League for Effective Autism Services, along with three children with autism and their guardians, brought this suit under 42 U.S.C. § 1983 claiming violations of their rights under federal Medicaid law. Plaintiffs claimed that amendments to state administrative rules promulgated by defendants deprived them of services required by the federal Early and Periodic Screening, Diagnostic, and Treatment program. The district court granted plaintiffs’ request for a temporary restraining order and preliminarily enjoined the implementation of the amended rules. The district court found that plaintiffs have a likelihood of success on the merits of their claims, that plaintiffs would suffer irreparable injury absent preliminary injunctive relief, that Ohio would not be harmed by the injunction, and that the public interest would be served by the issuance of the preliminary injunction. The district court did not abuse its discretion in weighing these four factors when it granted plaintiffs’ request for a preliminary injunction.
I. Plaintiffs are three Medicaid-eligible children and their guardians, and the Parents’ League for Effective Autism Services (“PLEAS”), an association of parents whose children receive services from Step by Step Academy (“SBSA”) under Medicaid. SBSA is a nonprofit treatment center that focuses on providing Applied Behavioral Analysis (“ABA”) services to children with autism. Federal regulations define autism as a “developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age three, that adversely affects a child’s educational performance. Other characteristics often associated with
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autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences.” 34 C.F.R. § 300.8(c)(1)(i). According to plaintiffs’ expert, ABA therapy is a “highly effective form of behavioral treatment” that uses a “one-on-one teaching approach that relies on reinforced practice of various skills,” and “[t]he best treatment plan [for children with autism] will include ABA, the only treatment approach confirmed as effective by a comprehensive evaluation of all proposed therapies in a well know[n] government sponsored review process.” Decl. of James A. Mulick, Ph.D., at ¶¶ 20, 21. (citing http://www.health.state.ny.us/community/infants_children/ early_intervention/autism/ index.htm).
Plaintiff children receive ABA therapy, along with other services, from SBSA: Step by Step Academy provides treatment services exclusively for children with autism or related autism spectrum symptoms. This full-day, year round intervention is based on Applied Behavior Analysis, a system of controlling the environment, establishing sequential goals, providing discrete trials for learning with a high rate of repetition, insuring reinforcement of success in learning trials, and planned generalization training. Using one-to-one and small group intervention, the treatment focuses on the amelioration of autism symptoms and skill deficits. Individualized goals within the diagnostic criteria focus on each child’s receptive and expressive language, communication, socialization, self-help skills, and general behavior patterns for optimal learning. Decl. of Jeffrey A. Christiansen, Psy.D., staff psychologist with SBSA, at ¶ 5. Plaintiffs claim that this therapy provides significant benefits for the plaintiff children. Defendants note that SBSA’s one-to-one ABA therapy is provided at great expense. Defendants claim that in fiscal year 2007, SBSA billed the Ohio Medicaid program approximately $2.6 million for services provided to 42 children, which is one-half of Ohio’s expenditures in the specific Medicaid treatment program that
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funded SBSA’s services. SBSA’s per pupil cost in 2007 was nearly five-times the average per pupil cost of other providers serving children with autism.
Defendant Helen Jones-Kelley is director of the Ohio Department of Job and Family Services (“ODJFS”), and is responsible for the supervision and operation of the Medicaid program in Ohio. Defendant Sandra Stephenson is the Director of the Ohio Department of Mental Health (“ODMH”), and is responsible for adopting rules and standards for services provided by community health facilities. ODJFS works with ODMH to promulgate the Ohio Administrative Code rules that govern Ohio’s Medicaid program. Defendant Kerry Weems is the Acting Administrator of the Federal Centers for Medicare and Medicaid Services (“CMS”), an agency under the Department of Health and Human Services responsible for administering the federal Medicaid program.1
On August 13, 2007, CMS filed proposed rules that would limit Medicaid’s coverage of rehabilitative services. 72 Fed. Reg. 45201. However, Congress placed a moratorium on these and other proposed restrictions on Medicaid spending, and therefore these rules were never adopted. See Pub. L. No. 110-28 § 7001(a); Pub. L. No. 110-252 § 7001(a) (extending moratorium on regulations restricting coverage of rehabilitative services until April 1, 2009); Pub. L. No. 111-5 § 5003(a), (d)(3) (January 4, 2009) (noting a “sense of Congress” that the proposed regulations relating to rehabilitative services should not be promulgated as final regulations).
1On June 20, 2008, the district court filed an order finding that CMS is a necessary party under Fed. R. Civ. P. 19(a). Plaintiffs filed an amended complaint adding defendant Kerry Weems.
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After CMS proposed restrictions on rehabilitative services, ODJFS promulgated amendments to Ohio’s Administrative Rules. The first amended rule, Ohio Admin. Code § 5122-29-17, redefined Ohio’s Community Psychiatric Supportive Treatment (“CPST”) program, which was the program that funded SBSA’s services. The amendment limited CPST services to those that were rehabilitative in nature. The second amended rule, Ohio Admin. Code § 5101:3-27-02, redefined when Ohio’s Medicaid program would cover community mental health services. This amended rule limited coverage to those services that were rehabilitative, and defined rehabilitative services as those that restore an individual to a prior functional level. These two amended rules were promulgated on February 28, 2008, and were set to go into effect on July 1, 2008.
On March 21, 2008, Gwendolyn Sampson, Acting Associate Regional Administrator at CMS, sent a letter to ODJFS raising concerns about whether SBSA’s services are Medicaid-reimbursable expenditures:
Step by Step has been billing Medicaid for community psychiatric supportive treatment (CPST) for children diagnosed with autism. CPST is a rehabilitative service under Ohio’s State Plan intended to maximize the reduction of symptoms of mental illness in order to restore the individual’s functioning. CMS generally views treatment for autism as habilitative rather than rehabilitative—as such, the CPST claims by Step by Step may not comply with Ohio’s State Plan. The letter indicated that CMS was deferring payment for the expenditures submitted by SBSA. ODJFS was provided the opportunity to justify these expenditures, but the record does not indicate whether ODJFS took any steps to provide CMS with further information. The letter from CMS used the definition of CPST services from the amended rules, not yet in effect.
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On May 2, 2008, plaintiffs filed suit in the United States District Court for the Southern District of Ohio, claiming that Ohio’s amended administrative rules violate federal Medicaid law. Specifically, plaintiffs asserted that the federal Early and Periodic Screening, Diagnostic, and Treatment (“EPSDT”) program requires Ohio, as a voluntary state recipient of federal Medicaid funds, to provide eligible children various treatment services. Plaintiffs claim that SBSA’s ABA therapy is covered as a mandatory rehabilitative service under EPSDT, and that the rejection of funding for these services under the amended Ohio administrative rules would violate EPSDT’s mandate. Plaintiffs moved for a temporary restraining order enjoining defendants from implementing the amended rules.
The district court held a hearing on plaintiffs’ motion for preliminary injunctive relief. On June 30, 2008, the day before the amended rules were to take effect, the district court granted plaintiffs’ motion for a temporary restraining order. Parents League for Effective Autism Servs. v. Jones-Kelley, 565 F. Supp. 2d 905 (S.D. Ohio 2008). First, the district court found that abstention was not required under the Burford abstention doctrine. Id. at 913-14. Second, the court found that preliminary injunctive relief was appropriate because: (1) plaintiffs have a strong likelihood of showing that the EPSDT-mandated services under Medicaid law, specifically 42 U.S.C. § 1396d(a)(13), require Ohio to cover SBSA’s services and that Ohio’s amended administrative rules would unlawfully deny plaintiffs these mandatory services; (2) plaintiffs would suffer irreparable injury if the amended rules were implemented because they would experience severe regression in their symptoms; (3) Ohio will not be harmed by the preliminary injunctive relief because complying
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with federal Medicaid law is not a harm; and (4) the public interest will be served by preliminary injunctive relief because the early treatment of autism has been shown to provide significant improvement and the cost of providing care will be greater if these individuals do not receive treatment at an early stage.2 Id. at 914-18. On July 1, 2008, the district court granted a preliminary injunction based on the reasons set forth in its June 30, 2008, memorandum.3
Defendants filed a motion to stay the preliminary injunction, but the district court denied this request. Defendants appealed the district court’s order granting the preliminary injunction.4
II. The district court did not abuse its discretion in granting plaintiffs’ request for preliminary injunctive relief enjoining defendants from implementing the two amendments to the administrative rules. This case involves an alleged conflict between an ambiguous federal Medicaid provision and amendments to two of Ohio’s administrative rules. In addition, the federal agency responsible for
2On the same day, the district court denied defendants’ motion to dismiss. Parents League for Effective Autism Servs. v. Jones-Kelley, 565 F. Supp. 2d 895 (S.D. Ohio 2008). In this order, the district court found that plaintiffs have standing to sue and that plaintiffs have alleged violations of a right enforceable through 42 U.S.C. § 1983. Defendants did not appeal this interlocutory order.
3Normally, an appellate court does not have jurisdiction to review the grant of a temporary restraining order. It is clear from this order, however, that in addition to granting plaintiffs’ motion for a temporary restraining order, the court also granted a preliminary injunction and both parties treat the order as a preliminary injunction. This court has jurisdiction to review the preliminary injunction under 28 U.S.C. § 1292(a).
4On appeal, defendants do not challenge the district court’s ruling on the inapplicability of Burford abstention.
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administering the Medicaid program has yet to take a position on the issues relevant to this case. At this stage of the litigation, we are not deciding that plaintiffs will succeed in showing a violation of their rights under Medicaid law, but only that the district court did not abuse its discretion in concluding that the four factors involved in reviewing a request for preliminary injunctive relief on balance weighed in favor of granting plaintiffs’ requested injunctive relief. See Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir. 2000) (reciting the four-factor test).
The district court properly considered the extent to which: (1) plaintiffs have a likelihood of success with regard to whether Ohio is required under the federal Medicaid statute to cover SBSA’s ABA therapy when medically necessary, and whether the amended Ohio administrative rules effectively cut off funding for these services; (2) plaintiffs would suffer irreparable injury absent an injunction; (3) the injunction would not cause substantial harm to others; and (4) the public interest would be served by issuance of a preliminary injunction. The district court did not abuse its discretion in finding that these factors weigh in favor of granting preliminary injunctive relief, and the court has not “relied upon clearly erroneous findings of fact, improperly applied the governing law, or used an erroneous legal standard.” Tumblebus, Inc. v. Cranmer, 399 F.3d 754, 760 (6th Cir. 2005).
A. Likelihood of success on the merits “The preliminary question of whether a movant is likely to succeed on the merits is a
question of law which we decide de novo.” Tumblebus, 399 F.3d at 760. The district court
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determined that plaintiffs have a likelihood of success on the merits of their claims because: 1) federal Medicaid provisions likely require coverage of SBSA’s ABA therapy when determined to be medically necessary; and 2) the amendments to the Ohio administrative rules would have the combined effect of cutting off funding for these services.
1. Whether 42 U.S.C. § 1396d(a)(13) covers the services provided by SBSA
The ambiguities in the federal Medicaid provision requiring reimbursement for rehabilitative services make a definitive determination on coverage of specific treatments a difficult proposition, especially without the input of CMS on these issues. This factor accordingly does not weigh strongly for or against a preliminary injunction.
Because Ohio accepted federal Medicaid funds, the state Medicaid plan must provide for EPSDT screening services as defined by 42 U.S.C. § 1396d(r) and provide: “. . . corrective treatment the need for which is disclosed by such child health screening services.” 42 U.S.C. § 1396a(a)(43)(C). Section 1396d(r) requires states to provide several specific services and:
[s]uch other necessary health care, diagnostic services, treatment, and other measures described in subsection (a) of this section to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the State plan. § 1396d(r)(5). Taken together, these provisions require Ohio to provide EPSDT-eligible children all of the services in subsection § 1396d(a) that are determined to be medically necessary.
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Section 1396d(a) includes 28 categories of services that Ohio must fund for eligible children under EPSDT’s mandate. Most relevant to this case is § 1396d(a)(13), which requires states to provide:
other diagnostic, screening, preventive, and rehabilitative services, including any medical or remedial services (provided in a facility, a home, or other setting) recommended by a physician or other licensed practitioner of the healing arts within the scope of their practice under State law, for the maximum reduction of physical or mental disability and restoration of an individual to the best possible functional level. § 1396d(a)(13). Though § 1396d(a)(13) does not explicitly address the services provided by SBSA, it arguably does so when the services are medically necessary. The majority of defendants’ arguments are based on their classification of SBSA’s services as habilitative and therefore outside the scope of EPSDT’s mandates. Defendants argue that § 1396d(a)(13) only mandates rehabilitative services, that SBSA’s ABA therapy is exclusively habilitative, and that habilitative services are only provided for under separate, non-mandatory Medicaid provisions.5 In its opinion and order denying defendants’ motion to stay the injunction,
5Federal regulations define “rehabilitative services” as: any medical or remedial services recommended by a physician or other licensed practitioner of the healing arts, within the scope of his practice under State law, for maximum reduction of physical or mental disability and restoration of a recipient to his best possible functional level. 42 C.F.R. § 440.130(d). In a section dealing with state waiver programs, the Medicaid Act defines “habilitative services” as:
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the district court rejected this argument stating: “After careful study of the relevant statutes and regulations, this Court concluded that th[e habilitative versus rehabilitative] dichotomy has no relevance to medical or remedial services for children when the treatment has been recommended by a physician or other licensed practitioner for the ‘maximum reduction of a physical or mental disability.’” Parents League for Effective Autism Servs. v. Jones-Kelley, 2008 WL 2796744, at *1 (S.D. Ohio July 17, 2008). The district court noted the potential overlap between services classified as habilitative or rehabilitative, and found that plaintiffs have a strong likelihood of showing that SBSA’s services fall under the definition of services required under § 1396d(a)(13).
The district court found that SBSA’s ABA therapy “is a medically necessary service which provides the maximum reduction of a mental or physical disability.” Parents League, 565 F. Supp. 2d at 917. There was medical evidence before the district court to support the factual aspects of this conclusion. Defendants argue, however, that in addition to the “maximum reduction” element, § 1396d(a)(13) requires “restoration of an individual to the best possible functional level,” and that “restoring” in this context excludes SBSA’s services because the children it serves did not once have a functional level that the therapy attempts to restore.
It is true that this provision can be read to mandate only services recommended by a physician that provide both a “maximum reduction of physical or mental disability and restoration
services designed to assist individuals in acquiring, retaining, and improving the self-help, socialization, and adaptive skills necessary to reside successfully in home and community based settings. 42 U.S.C. § 1396n(c)(5)(A).
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of an individual to the best possible functional level.” However, this provision can also be read to mandate both services recommended by a physician “for the maximum reduction of physical or mental disability,” and services recommended by a physician for the “restoration of an individual to the best possible functional level.” The choice between two ways to read “and” in a statute is often made by looking to “context and common sense.” OfficeMax, Inc. v. United States, 428 F.3d 583, 597 (6th Cir. 2005). “Whether to interpret the preceding words as distributed over the conjoined elements or not depends on the context of the sentence, and what we externally know about the conjoined elements.” Id. at 600 (Rogers, J., dissenting). The language of the statute supports either reading, and there are reasons, relied on by the district court, to read the statute plaintiffs’ way.
First, § 1396d(a)(13) “reflects the extremely broad EPSDT obligation.” Parents League, 565 F. Supp. 2d at 912. Defendants’ reading of § 1396d(a)(13) to cover only services that restore a child to a prior skill level would arguably “mean that no child who is born with a disability, could ever receive rehabilitative services.” Parents League, 565 F. Supp. 2d at 916. Such an outcome arguably “does not comport with the broad coverage afforded under the EPSDT mandate.” Id.
Second, cases from other circuits have concluded that § 1396d(a) covers services that are arguably similar to the ABA therapy provided by SBSA. See Pediatric Specialty Care, Inc. v. Arkansas Dept. of Human Services, 293 F.3d 472, 480 (8th Cir. 2002); Chisholm v. Hood, 133 F. Supp. 2d 894 (E.D. La. 2001).
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Third, no administrative interpretations of § 1396d(a)(13) appear to clarify or restrict the provision in the way suggested by defendants. Defendants cite several administrative materials that state that “habilitation services cannot be provided pursuant to 42 U.S.C. §§ 1396d(a) or 1396d(a)(13).” These materials simply state that habilitation services can only be funded through other Medicaid provisions, such as those dealing with ICF/MR residents or approved Medicaid waivers. These materials do not support the proposition that ABA therapy is exclusively habilitative, which plaintiffs dispute, or that ABA therapy should not otherwise be covered under § 1396d(a).
The district court’s attempts to get the federal government’s view of the meaning of § 1396d(a)(13) appear to have been elusive. In a case such as this, the federal court is entitled to a clear statement of the federal agency’s interpretation of the federal Act that it administers. On March 21, 2008, CMS sent a letter to ODJFS deferring payment on claims made by SBSA and stated that “CMS generally views treatment for autism as habilitative rather than rehabilitative—as such, the CPST claims by Step by Step may not comply with Ohio’s State Plan.” However, during the hearing on plaintiffs’ motion for preliminary injunctive relief, the district court questioned a representative from CMS in an attempt to nail down the agency’s official position on the matter:
THE COURT: Does CMS have a position on whether these services are covered under the Medicaid Act?
MR. D’ALESSANDRO: Your Honor, I hate to use the word “it depends,” but the answer is, it depends on the service. And I think that’s what the deferral process is going to decide for all of us. . . . And I think the State may have spoken a little too strongly when it said we have decided not to pay. There has been no such decision not to pay. That’s what the deferral process is for.
Your Honor, it’s our understanding that the deferral letter may have come about based on information gleaned from a county agency which was providing funds to Step-by-Step, the county advised the state, and the deferral process was started.
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I would like to note that the deferral letter, . . . I will acknowledge, Your Honor, that the language used by CMS in the letter of March 21st does appear to hone in on one issue, the issue of rehabilitative versus habilitative. I think that may have been an unfortunate choice by the Acting Associate Regional Administrator to hone in on that. I think all coverage and eligibility and reimbursement issues are in play during the deferral process. . . .
To any extent—and I don’t believe it was their intent, but to any extent that the State left the impression that there is a done deal here, I don’t think that’s the case. The agency’s uncertainty on these issues does not contradict the district court’s conclusion that plaintiffs have a likelihood of showing that these services are required under the federal Medicaid statute. In addition to the agency’s stated uncertainty in this case, proposed regulations further reflect the ambiguity of § 1396d(a)(13). In 2007, CMS proposed to amend the regulations regarding “rehabilitative services” because of concerns that states were using § 1396d(a)(13) to cover services that were not truly “rehabilitative.” 72 Fed. Reg. 45201 (citing as an example “behavioral treatment services in ‘wilderness camps,’ juvenile detention, and similar facilities where youth are involuntarily confined” that should fall “under the domain of the juvenile justice or youth systems in the State, rather than Medicaid.”). Even if these proposed regulations would support defendants’ position, Congress placed a moratorium on the final adoption of these regulations. See Pub. L. No. 110-28 § 7001(a); Pub. L. No. 110-252 § 7001(a) (extending moratorium on regulations restricting coverage of rehabilitative services until April 1, 2009); Pub. L. No. 111-5 § 5003(a), (d)(3) (January 4, 2009) (noting a “sense of Congress” that the proposed regulations relating to rehabilitative services should not be promulgated as final regulations). This situation shows the current
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uncertainty regarding the definition of services in § 1396d(a)(13), which makes it even harder for us to find an abuse of discretion when the district court weighed in plaintiffs’ favor the likelihood of success with respect to whether SBSA’s services are required under § 1396d(a)(13).
2. Whether implementation of the Ohio amended rules would violate federal Medicaid laws
The district court also found a likelihood of success on the merits “because the proposed administrative rules will effectively cut off funding for medically necessary services.” Parents League, 565 F. Supp. 2d at 917. Again, while it is not clear that this is so, the district court did not abuse its discretion by weighing the likelihood of success on this issue in favor of plaintiffs.
In response to concerns over the federal approval of funding of SBSA’s services, the Ohio Department of Job and Family Services (“ODJFS”) and the Ohio Department of Mental Health (“ODMH”) promulgated rules amending the state administrative provisions that previously covered SBSA’s services. Ohio Administrative Code section 5122-29-17 defines Community Psychiatric Supportive Treatment (“CPST”) services, which is the general program under which SBSA receives its funding. The prior rule stated that:
Community psychiatric supportive treatment (CPST) service provides an array of services delivered by community based, mobile individuals or multidisciplinary teams of professionals and trained others. Services address the individualized mental health needs of the client. They are directed towards adults, children, adolescents and families and will vary with respect to hours, type and intensity of services, depending on the changing needs of each individual.
The purpose/intent of CPST services is to provide specific, measurable, and individualized services to each person served. CPST services should be focused on
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the individual’s ability to succeed in the community; to identify and access needed services; and to show improvement in school, work and family and integration and contributions within the community.
Ohio Admin. Code § 5122-29-17(A).
The amendments to this provision focus the program on rehabilitative services:
Community psychiatric supportive treatment (CPST) service is a rehabilitative service intended to maximize the reduction of symptoms of mental illness in order to restore the individual’s functioning to the highest level possible. CPST supports the individual’s ability to take responsibility for managing his/her mental illness and achieving and maintaining his/her rehabilitative and/or recovery goals.
Ohio Admin. Code § 5122-29-17(A) (as amended). The amended rule contained extensive
additional changes to this code provision that are not relevant to this case.
Ohio Administrative Code § 5101:3-27-02 defines when the Ohio Medicaid program will
cover community mental and health services. The amendments to this section require services to
be rehabilitative and provide a new definition of rehabilitation:
The following describes those services reimbursable as medicaid community mental health service when they are both rehabilitative and rendered by eligible medicaid providers. Rehabilitative services provide for the maximum reduction of mental illness and are intended to restore an individual to the best possible functional level. The services shall meet the principles set forth in rule 5101:3-1-02 of the Administrative Code.
Ohio Admin Code § 5101:3-27-02(A) (amended language in bold).
These amended rules arguably conflict with federal Medicaid law because the amendments
to rule 5101:3-1-02 “reflect a much more narrow definition of ‘rehabilitative’ . . . . The federal
regulations do not require that the rehabilitative services reduce ‘mental illness.’” Parents League,
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No. 08-3931 Parents’ League for Effective Autism Servs. v. Jones-Kelley
“restoration” requirements. As noted in Part II.A.1, supra, the relevant federal Medicaid provisions do not necessarily require rehabilitative services to involve both a “maximum reduction of physical or mental disability” and a “restoration of an individual to the best possible functional level” for each individual. The language of the amended Ohio rules, however, narrows the definition of rehabilitative services by requiring restoration to the best functional level. Under the Ohio amended rules, rehabilitative services are “intended to maximize the reduction of symptoms of mental illness in order to restore the individual’s functioning to the highest level possible,” Ohio Admin. Code § 5122-29-17(A) (as amended) (emphasis added), and “provide for the maximum reduction of mental illness and are intended to restore an individual to the best possible functional level,” Ohio Admin Code § 5101:3-27-02(A) (as amended) (emphasis added).
In addition to noting the potential conflict between the amended rules and the federal Medicaid statute, the district court focused on the likely effects of defendants’ implementation of these rules. “Because the proposed administrative rules will effectively cut off funding for medically necessary services, Plaintiffs have established a likelihood of success on the merits.” Parents League, 565 F. Supp. 2d at 917 (emphasis added). “The proposed amendments specifically target the provision of CPST services to these children.” Id. “The evidence is clear that the State adopted the new rules to avoid having to pay for services which it was concerned would not be reimbursed by CMS.” Id. at 917-18.
The district court did not abuse its discretion in relying on the likelihood that plaintiffs’ will be able to show that the amended rules would effectively deny funding for SBSA’s ABA therapy.
- 17 -

Case: 2:08-cv-00421-JLG-NMK Doc #: 55 Filed: 08/03/09 Page: 18 of 21 PAGEID #: 1456
No. 08-3931 Parents’ League for Effective Autism Servs. v. Jones-Kelley
The rules were promulgated in response to concerns over federal funding of this program, defendants began seeking alternate services for the children previously served by SBSA, and everything in defendants’ briefing indicates that they believe SBSA’s services to be habilitative in nature and not covered by the new rules or the federal EPSDT mandate.
B. Irreparable injury to plaintiffs
The district court also did not abuse its discretion in weighing the possibility of irreparable injury to plaintiffs because, as noted in the previous section, defendants appear to interpret the amended rules to exclude SBSA’s ABA therapy from funding under Ohio’s CPST program. In addition, medical and personal testimony indicated that the plaintiff children would suffer irreparable injury in the form of severe regression of symptoms if SBSA’s services are no longer available, and plaintiffs could not receive comparable services from other providers that provide services under other sources of federal or state funding.
Defendants argue that plaintiffs will not suffer under the amended rules because plaintiffs have other avenues of receiving Medicaid coverage for SBSA’s services if the services are medically necessary. For example, plaintiffs can request prior authorization of the ABA therapy provided by SBSA, claiming that this service is required under federal Medicaid law. Because ODJFS and ODMH appear not to accept that ABA therapy is rehabilitative under the amended rules or § 1396d(a)(13), this path may simply lead back to a dispute in the courts over the coverage of ABA therapy under the EPSDT mandate.
- 18 -

Case: 2:08-cv-00421-JLG-NMK Doc #: 55 Filed: 08/03/09 Page: 19 of 21 PAGEID #: 1457 No. 08-3931 Parents’ League for Effective Autism Servs. v. Jones-Kelley C. Substantial harm to others and the public interest On appeal, defendants do not raise any independent arguments related to the harm to nonparties or the public interest. As to the public interest, the district court reasonably weighed the public’s interest against defendants at this stage of the litigation. III. At this stage of the litigation, we do not resolve the substantive legal issues on the merits. Because the district court did not abuse its discretion in entering the preliminary injunction, we AFFIRM.
- 19 -

Case: 2:08-cv-00421-JLG-NMK Doc #: 55 Filed: 08/03/09 Page: 20 of 21 PAGEID #: 1458

Leonard Green Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: July 29, 2009

Ms. Michelle F. Atkinson Ohio Legal Rights Service 50 W. Broad Street Suite 1400 Columbus, OH 43215
Mr. Roger F. Carroll Office of the Ohio Attorney General Health & Human Services Section 30 E. Broad Street 26th Floor State Office Tower Columbus, OH 43215
Ms. Vanessa K. Coterel Legal Aid Society of Columbus 1108 City Park Avenue Columbus, OH 43206
Mr. Ara G. Mekhjian Office of the Ohio Attorney General Health & Human Services Section 30 E. Broad Street 26th Floor State Office Tower Columbus, OH 43215

Re:

Case No. Kelley, et

08-3931, al

Parents'

League

for

Effective,

et

al

v.

Helen

Jones-

Originating Case No. : 08-00421

Dear Sir or Madam,

Case: 2:08-cv-00421-JLG-NMK Doc #: 55 Filed: 08/03/09 Page: 21 of 21 PAGEID #: 1459

The Court issued the enclosed (Order/Opinion) today in this case. Sincerely yours,

cc: Mr. James Bonini Ms. Susan G. Tobin
Enclosure
Mandate to issue

s/Jill Colyer Case Manager Direct Dial No. 513-564-7024 Fax No. 513-564-7098

 
 Case: 2:08-cv-00421-JLG-NMK Doc #: 82 Filed: 09/14/11 Page: 1 of 2 PAGEID #: 1516

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

PARENTS’ LEAGUE FOR EFFECTIVE AUTISM SERVICES et al.,
Plaintiffs, vs. HELEN JONES-KELLEY, et al., Defendants.

CIVIL ACTION 2:08 CV 421
JUDGE GRAHAM MAGISTRATE JUDGE KING

STIPULATION OF DISMISSAL

Pursuant to Fed R. Civ. P. 41(a)(1)(A)(i i) the parties s tipulate to the dism issal without prejudice of Defendant Donald Berw ick, M.D., in his official capacity as Administrator of Centers for Medicare and Medicaid Services.

/s/ ROGER F. CARROLL__________ ROGER F. CARROLL (0023142) Assistant Attorney General Health and Human Services Section 30 East Broad Street, 26th Floor Columbus, Ohio 43215 Trial Attorney for Defendant Tracy J. Plouck, Director Ohio Department of Mental Health

/s/ RONDA JOY CRESS___________ RONDA JOY CRESS (0080570) Ohio Legal Rights Service 50 West Broad Street, 14th Floor Columbus, Ohio 43215 Trial Attorney for Plaintiffs

/s/ ARA MEKHJIAN_____________ ARA MEKHJIAN (0068800) Assistant Attorney General Health and Human Services Section 30 East Broad Street, 26th Floor Columbus, Ohio 43215 Trial Attorney for Defendant Michael B. Colbert, Director Ohio Department of Job and Family Services

/s/ MARK T. D’ALESSANDRO_______ MARK T. D’ALESSANDRO (0019877) Assistant United States Attorney 303 Marconi Blvd., Suite 200 Columbus, Ohio 43215 Trial Attorney for Donald Berwick, M.D., Administrator of Centers for Medicare and Medicaid Services

Case: 2:08-cv-00421-JLG-NMK Doc #: 82 Filed: 09/14/11 Page: 2 of 2 PAGEID #: 1517
CERTIFICATE OF SERVICE
I hereby certify that on September 14, 2011, a copy of the foregoing Stipulation of Dismissal was f iled electronically. Notice of this f iling will be sen t to all pa rties by operation of the Court’s electronic filing system. Parties m ay access this filing thro ugh the Court’s system.
/s/ ROGER F. CARROLL ROGER F. CARROLL (0023142) Assistant Attorney General

 
 Case: 2:08-cv-00421-JLG-NMK Doc #: 84 Filed: 09/15/11 Page: 1 of 1 PAGEID #: 1522

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

PLEAS. et a!..

Case No. 2:08 CV 421

Plaintiffs.

vs.

Judge Graham

HELEN JONES-KELLEY, eta/.,

Magistrate Judge King

Defendants.

ORDER GRANTING JOINT MOTION TO DISSOLVE TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
This cause came on for consideration of the Joint Motion to Dissolve Temporary Restraining Order and Preliminary Injunction. The parties have reached a settlement agreement that necessitates dissolving the temporary restraining order and preliminary injunction issued and amended by the Court on July 1. 2008.
For good cause shown, it is hereby ORDERED that the temporary restraining order and
preliminary injunction be dissolved. IT IS SO ORDERED.

Date

James L. Graham

UNITED STATES DISTRICT JUDGE

 
 Case: 2:08-cv-00421-JLG-NMK Doc #: 86 Filed: 12/15/11 Page: 1 of 3 PAGEID #: 1524

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

PLEAS, et al., Plaintiffs,
vs. HELEN JONES-KELLEY, et al.,
Defendants.

:

Case No. 2:08 CV 421

:

:

Judge Graham

:

Magistrate Judge King

:

JOINT STIPULATION OF VOLUNTARY DISMISSAL OF THE CASE

Pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii), the parties in the above captioned case jointly

stipulate to the dismissal of this case, with prejudice. As noted in the parties’ Joint Motion to

Dissolve Temporary Restraining Order and Preliminary Injunction (Doc. 83), the parties have

reached a Settlement Agreement, contingent on the fulfillment of specified obligations. The

parties agree that these obligations have been fulfilled and that dismissal is appropriate.

AGREED TO BY:

DEFENDANTS:

PLAINTIFF

S:

MIKE DEWINE

s/Ronda J. Cress

Ohio Attorney General

SUSAN

G. TOBIN (0021725)

s/Ara Mekhjian by s/Ronda J. Cress *

Trial

Attorney

ARA MEKHJIAN (0068800)

RONDA

J. CRESS (0080570)

Senior Assistant Attorney General

Ohio

Legal Rights Service

Health and Human Services Section

50 West Broad Street, Suite 1400

30 East Broad Street, 26th Floor

Colum

bus, Ohio 43215-5923

Columbus, Ohio 43215-3400

Telephone:

(614) 466-7264

Telephone: (614) 466-8600

Facsim

ile: (614) 644-1888

Facsimile: (614) 466-6090

Counsel for Michael B. Colbert Director of the Ohio Department of Job and Family Services
* per authorization

Counsel for Plaintiffs

Case: 2:08-cv-00421-JLG-NMK Doc #: 86 Filed: 12/15/11 Page: 2 of 3 PAGEID #: 1525 s/Roger Carroll by s/Ronda J. Cress * ROGER F. CARROLL (0023142) Principal Assistant Attorney General Health and Human Services Section 30 East Broad Street, 26th Floor Columbus, Ohio 43215-3400 Phone: (614) 466-8600 Facsimile: (614) 466-6090 Counsel for Tracy J. Plouck, Director of the Ohio Department of Mental Health * per authorization
2

Case: 2:08-cv-00421-JLG-NMK Doc #: 86 Filed: 12/15/11 Page: 3 of 3 PAGEID #: 1526 CERTIFICATE OF SERVICE
I hereby certify that on December 15, 2011, a true copy of the foregoing Joint Stipulation of Voluntary Dismissal of the Case was filed electronically. Notice of this filing will be sent to all registered parties by operation of the Court’s electronic filing system.
s/Ronda J. Cress Ronda J. Cress (0080570)
3

 
 Case: 2:08-cv-421 As of: 09/13/2012 03:26 AM EDT 1 of 9
CLOSED,STAYED
U.S. District Court Southern District of Ohio (Columbus) CIVIL DOCKET FOR CASE #: 2:08−cv−00421−JLG−NMK

Parents' League for Effective Autism Services (PLEAS) et al v. Helen Jones−Kelley et al Assigned to: Judge James L Graham Referred to: Magistrate Judge Norah McCann King Case in other court: USCA 6th, 08−03931 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 05/02/2008 Date Terminated: 12/16/2011 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Parents' League for Effective Autism Services (PLEAS)

represented by Michelle Francine Atkinson Ohio Legal Rights Service 50 W. Broad Street Suite 1400 Columbus, OH 43215 614−466−7264 Fax: 614−644−1888 Email: matkinson@olrs.state.oh.us TERMINATED: 01/26/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan Gail Tobin Ohio Legal Rights Service 50 West Broad St. Suite 1400 Columbus, OH 43215−5923 614−466−7264 Fax: 614−644−1888 Email: stobin@olrs.state.oh.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ronda Joy Cress 50 W. Broad Street Suite 1400 Columbus, OH 43215 (614) 466−7264 Ext. 137 Fax: (614) 644−1888 Email: rcress@olrs.state.oh.us ATTORNEY TO BE NOTICED

Plaintiff
X.C. a minor by and through his parent, A.C.

represented by Michelle Francine Atkinson (See above for address) TERMINATED: 01/26/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ronda Joy Cress (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan Gail Tobin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:08-cv-421 As of: 09/13/2012 03:26 AM EDT 2 of 9

Plaintiff
W.G. a minor by and through his parent, K.G.

represented by Michelle Francine Atkinson (See above for address) TERMINATED: 01/26/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ronda Joy Cress (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan Gail Tobin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
K.W. a minor by and through his parent, A.W.

represented by Michelle Francine Atkinson (See above for address) TERMINATED: 01/26/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ronda Joy Cress (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan Gail Tobin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Helen Jones−Kelley in her offficial capacity as Director of the Ohio Department of Job and Family Services
Defendant Sandra Stephenson in her offficial capacity as Director of the Ohio Department of Mental Health

represented by Ara Mekhjian Ohio Attorney General's Office 30 East Broad Street 26th Floor Columbus, OH 43215 614−644−8993 Fax: 614/466−6090 Email: ara.mekhjian@ohioattorneygeneral.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Roger Francis Carroll Ohio Attorney General − 2 Education Section 30 E Broad Street 15th Floor Columbus, OH 43215−3428 614−466−2872 Email: roger.carroll@ohioattorneygeneral.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Grace Hartnett Office of the Ohio Attorney General

Case: 2:08-cv-421 As of: 09/13/2012 03:26 AM EDT 3 of 9

30 E. Broad St. 26th Floor Columbus, OH 43215 Email: elizabeth.hartnett@ohioattorneygeneral.gov ATTORNEY TO BE NOTICED

Jennifer Anne Adair Ohio Attorney General's Office 30 East Broad Street 26th Floor Columbus, OH 43215 614−466−6818 Fax: 614−466−6090 Email: jadair@ag.state.oh.us TERMINATED: 03/07/2011 ATTORNEY TO BE NOTICED

Defendant
Kerry Weems in his official capacity as Acting Administrator, Centers for Medicare &Medicaid Services TERMINATED: 09/14/2011

represented by Mark Thomas D'Alessandro United States Attorney's Office − 2 303 Marconi Boulevard 2nd Floor Columbus, OH 43215 614−469−5715 Email: mark.dalessandro@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/02/2008 05/02/2008 05/02/2008 05/02/2008
05/02/2008 05/02/2008 05/05/2008 05/06/2008 05/06/2008 05/06/2008

# Docket Text
1 Civil Cover Sheet. (er ) (Entered: 05/02/2008)
2 COMPLAINT filed by K.W., Parents' League for Effective Autism Services (PLEAS), X.C. &W.G. against Helen Jones−Kelley &Sandra Stephenson. (er ) (Entered: 05/02/2008)
Filing fee for cv action: $ 350, receipt number 200 COL 002790. (er ) (Entered: 05/02/2008)
3 MOTION for Temporary Restraining Order by Plaintiffs K.W., Parents' League for Effective Autism Services (PLEAS), X.C. &W.G. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Counsel for Plaintiff's Statement, # 14 Text of Proposed Order) (er ) (Entered: 05/02/2008)
4 MOTION to Proceed Under Pseudonym by Plaintiffs K.W., Parents' League for Effective Autism Services (PLEAS), X.C. &W.G. (er ) (Entered: 05/02/2008)
NOTICE of TRO Conference set for 5/5/2008 @ 3:00 PM before James L Graham in Room 243. (bw) (Entered: 05/02/2008)
Minute Entry for proceedings held before James L Graham: Initial TRO Conference held on 5/5/2008. (Court Reporter Gina Wells.) (bw) (Entered: 05/06/2008)
5 Initial TRO Conference ORDER setting deadlines for motions, responses and replies. A telephone conference is set for 5/12/2008 @ 10:30 a.m. Signed by James L Graham on 5/6/2008. (bw) (Entered: 05/06/2008)
NOTICE of Telephone Status Conference set for 5/12/2008 @10:30 AM before James L Graham. (bw) (Entered: 05/06/2008)
6 NOTICE of Appearance by Ara Mekhjian for Defendant Helen Jones−Kelley (Mekhjian, Ara) (Entered: 05/06/2008)

Case: 2:08-cv-421 As of: 09/13/2012 03:26 AM EDT 4 of 9

05/07/2008 05/07/2008 05/12/2008 05/14/2008 05/16/2008 05/16/2008 05/19/2008 05/19/2008
05/27/2008 05/27/2008 06/03/2008
06/09/2008
06/10/2008 06/10/2008 06/13/2008 06/13/2008 06/13/2008 06/13/2008

7 NOTICE of Appearance by Roger Francis Carroll for Defendant Sandra Stephenson (Carroll, Roger) (Entered: 05/07/2008)
8 NOTICE of Appearance by Jennifer Anne Adair for Defendant Sandra Stephenson (Adair, Jennifer) (Entered: 05/07/2008)
Minute Entry for proceedings held before James L Graham: Status Conference held on 5/12/2008. (Court Reporter Darla Coulter.) (bw, ) (Entered: 05/14/2008)
9 PROTECTIVE ORDER. Signed by James L Graham on 5/14/2008. (bw) (Entered: 05/14/2008)
10 NOTICE to Take Deposition of Kierstyn Canter by Plaintiffs K.W., Parents' League for Effective Autism Services (PLEAS), X.C. &W.G. (Atkinson, Michelle) (Entered: 05/16/2008)
11 NOTICE to Take Deposition of Erika Robbins by Plaintiffs K.W., Parents' League for Effective Autism Services (PLEAS), X.C. &W.G. (Atkinson, Michelle) (Entered: 05/16/2008)
12 NOTICE of Hearing: Pretrial Conference set for 7/16/2008 @ 02:00 PM in chambers before Norah McCann King. (jm1, ) (Entered: 05/19/2008)
13 MOTION to Dismiss by Defendants Helen Jones−Kelley &Sandra Stephenson. Responses due by 6/12/2008 (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit) (Mekhjian, Ara) (Entered: 05/19/2008)
14 NOTICE to Take Deposition of Angie Bergefurd by Plaintiffs K.W., Parents' League for Effective Autism Services (PLEAS), X.C. &W.G. (Atkinson, Michelle) (Entered: 05/27/2008)
15 NOTICE to Take Deposition of Anita Lieser by Plaintiffs K.W., Parents' League for Effective Autism Services (PLEAS), X.C. &W.G. (Atkinson, Michelle) (Entered: 05/27/2008)
16 RESPONSE in Opposition re 13 MOTION to Dismiss filed by Plaintiffs K.W., Parents' League for Effective Autism Services (PLEAS), X.C. &W.G. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit) (Tobin, Susan) (Entered: 06/03/2008)
17 REPLY to Response to Motion re 13 MOTION to Dismiss filed by Defendants Helen Jones−Kelley &Sandra Stephenson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8) (Mekhjian, Ara) (Entered: 06/09/2008)
18 NOTICE to Take Deposition of Anita Lieser by Plaintiffs K.W., Parents' League for Effective Autism Services (PLEAS), X.C. &W.G. (Atkinson, Michelle) (Entered: 06/10/2008)
19 NOTICE to Take Deposition of Charles Flowers by Plaintiffs K.W., Parents' League for Effective Autism Services (PLEAS), X.C. &W.G. (Atkinson, Michelle) (Entered: 06/10/2008)
20 NOTICE to Take Deposition of Jeffrey A. Christiansen by Defendants Sandra Stephenson &Helen Jones−Kelley. (Carroll, Roger) Modified on 6/16/2008 to correct filers (kk2). (Entered: 06/13/2008)
21 NOTICE to Take Deposition of Michele LaMarche by Defendants Sandra Stephenson &Helen Jones−Kelley. (Carroll, Roger) Modified on 6/16/2008 to correct filers (kk2). (Entered: 06/13/2008)
22 NOTICE to Take Deposition of Beth Ann Rosner by Defendants Sandra Stephenson &Helen Jones−Kelley. (Carroll, Roger) Modified on 6/16/2008 to correct filers (kk2). (Entered: 06/13/2008)
23 NOTICE to Take Deposition of Records Custodian of Step By Step Academy, Inc. by Defendants Sandra Stephenson &Helen Jones−Kelley. (Carroll, Roger) Modified on 6/16/2008 to correct filers (kk2). (Entered: 06/13/2008)

Case: 2:08-cv-421 As of: 09/13/2012 03:26 AM EDT 5 of 9

06/20/2008 06/23/2008 06/24/2008 06/24/2008 06/24/2008 06/24/2008 06/24/2008 06/24/2008 06/26/2008
06/27/2008
06/30/2008
06/30/2008 06/30/2008
06/30/2008 06/30/2008 06/30/2008 07/01/2008
07/01/2008

24 ORDER on joinder.Signed by Judge James L Graham on 06/20/08.(jlg4) (Entered: 06/20/2008)
25 ORDER Setting Hearing on 3 MOTION for Temporary Restraining Order : for 6/27/2008 @9:00 AM in Courtroom 5 before James L Graham. Signed by James L Graham on 6/23/2008. (bw) (Entered: 06/23/2008)
26 ORDER granting # 4 Motion to proceed under pseudonym. Signed by Norah McCann King on 6/24/08. (rew ) (Entered: 06/24/2008)
27 AMENDED COMPLAINT against all defendants, filed by Parents' League for Effective Autism Services (PLEAS). (Tobin, Susan) (Entered: 06/24/2008)
28 NOTICE to Take Deposition of Mrs. C. by Defendants Helen Jones−Kelley, Sandra Stephenson. (Carroll, Roger) Modified on 6/25/2008 to correct text (jr). (Entered: 06/24/2008)
29 NOTICE to Take Deposition of Mrs. G. by Defendants Helen Jones−Kelley, Sandra Stephenson. (Carroll, Roger) (Entered: 06/24/2008)
30 NOTICE to Take Deposition of Mrs. W. by Defendants Helen Jones−Kelley, Sandra Stephenson. (Carroll, Roger) (Entered: 06/24/2008)
31 Summons Issued as to Kerry Weems, U.S. Attorney and U.S. Attorney General. (er ) (Entered: 06/25/2008)
32 RESPONSE in Opposition re 3 MOTION for Temporary Restraining Order filed by Defendant Helen Jones−Kelley. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 11, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit, # 14 Exhibit 14) (Mekhjian, Ara) (Entered: 06/26/2008)
Minute Entry for proceedings held before James L Graham: Motion Hearing held on 6/27/2008 re 3 MOTION for Temporary Restraining Order filed by X.C., K.W., W.G., Parents' League for Effective Autism Services (PLEAS). Matter is taken under advisement and a decision will issue. (Court Reporter Denise Errett) (bw) Modified on 6/30/2008 to correct typo (kk2). (Entered: 06/27/2008)
33 REPLY to Response to Motion re 3 MOTION for Temporary Restraining Order and Memo on EPSDT Services filed by Plaintiffs K.W., Parents' League for Effective Autism Services (PLEAS), X.C. &W.G. (Attachments: # 1 Exhibit 33_1, # 2 Exhibit 33_2, # 3 Exhibit 33_3) (Tobin, Susan) (Entered: 06/30/2008)
34 ORDER denying 13 Motion to Dismiss. Signed by Judge James L Graham on 06/30/08. (jlg4) (Entered: 06/30/2008)
35 Supplemental Memorandum Opposing Plaintiffs' Motion for Temporary Restraining Order by Defendants Helen Jones−Kelley &Sandra Stephenson. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G) (Thomas, Rebecca) (Entered: 06/30/2008)
36 RESPONSE to Motion re 3 MOTION for Temporary Restraining Order Response To Request For Authority filed by Defendant Kerry Weems. (D'Alessandro, Mark) (Entered: 06/30/2008)
37 ORDER granting 3 Motion for TRO. Signed by Judge James L Graham on 06/30/08. (jlg4) (Entered: 06/30/2008)
38 *SEALED* Notice of Filing Actual Identities of Plaintiffs by Plaintiffs PLEAS, X.C., W.G. &K.W. (kk2) (Entered: 07/01/2008)
39 ORDER re 37 Order on Motion for TRO enjoining defendants from implementing proposed rules OAC 5101:3−27−02 and 5122−29−17 until further order of the court. Signed by James L Graham on 7/1/2008. (bw) Modified on 7/2/2008 to correct typos (kk2). (Entered: 07/01/2008)
NOTICE of Status Conference set for 7/11/2008 @ 9:00 AM before James L Graham in Rm 243. (bw) (Entered: 07/01/2008)

Case: 2:08-cv-421 As of: 09/13/2012 03:26 AM EDT 6 of 9

07/01/2008 07/02/2008
07/09/2008 07/10/2008
07/10/2008 07/11/2008 07/14/2008 07/16/2008
07/16/2008 07/16/2008
07/17/2008
07/17/2008 07/17/2008 07/31/2008 08/27/2008 09/02/2008 09/03/2008

40 AMENDED TRO ORDER amending 39 Order. Signed by James L Graham on 7/1/2008. (bw) (Entered: 07/01/2008)
41 NOTICE of Hearing: The Preliminary Pretrial Conference set for 7/16/2008 @ 2:00 p.m. has been rescheduled. The Preliminary Pretrial Conference is now set for 9/17/2008 @ 01:30 PM in chambers before Norah McCann King. (jm1, ) (Entered: 07/02/2008)
42 ANSWER to 27 Amended Complaint by Defendants Helen Jones−Kelley &Sandra Stephenson. (Mekhjian, Ara) Modified on 7/10/2008 to correct filers (kk2). (Entered: 07/09/2008)
43 MOTION to Stay by Defendants Helen Jones−Kelley &Sandra Stephenson. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G) (Mekhjian, Ara) Modified on 7/11/2008 to correct filers (kk2). (Entered: 07/10/2008)
44 NOTICE OF APPEAL re 40 AMENDED TRO ORDER by Defendants Helen Jones−Kelley &Sandra Stephenson. (Mekhjian, Ara) Modified on 7/11/2008 to add link to #40 &correct filers (kk2). (Entered: 07/10/2008)
USCA Appeal Fees received $ 455 receipt number 200COL003779 re 44 Notice of Appeal filed by Helen Jones−Kelley &Sandra Stephenson (jr) (Entered: 07/11/2008)
Minute Entry for proceedings held before James L Graham: Status Conference held on 7/11/2008. (Court Reporter Gina Wells.) (bw, ) (Entered: 07/14/2008)
45 RESPONSE in Opposition re 43 MOTION to Stay filed by Plaintiffs K.W., Parents' League for Effective Autism Services (PLEAS), X.C. &W.G. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5) (Atkinson, Michelle) Modified on 7/17/2008 to clarify text (kk2). (Entered: 07/16/2008)
46 MOTION to Stay (containing requested jurisdictional briefing) by Defendants Helen Jones−Kelley &Sandra Stephenson. (Mekhjian, Ara) Modified on 7/17/2008 to correct filers (kk2). (Entered: 07/16/2008)
47 BRIEF re: Continuing Jurisdiction Pending 44 Appeal of Preliminary Injunction by Plaintiffs Parents' League for Effective Autism Services (PLEAS), K.W., W.G. &W.C. (Attachments: # 1 Exhibit 1) (Atkinson, Michelle) Modified on 7/17/2008 to correct text &filers (kk2). (Entered: 07/16/2008)
Notice of Correction − Docket text of 47 corrected to read as follows − "BRIEF re: Continuing Jurisdiction Pending 44 Appeal of Preliminary Injunction by Plaintiffs Parents' League for Effective Autism Services (PLEAS), K.W., W.G. &W.C." to correct text &filers. (kk2) (Entered: 07/17/2008)
48 ORDER denying 43 Motion to Stay and finding as moot 46 Motion to Stay. Signed by James L Graham on 7/17/2008. (bw) Modified on 7/17/2008 (bw, ). (Entered: 07/17/2008)
49 ORDER STAYING CASE but not the preliminary injunction during the appeal. Signed by James L Graham on 7/17/2008. (bw) (Entered: 07/17/2008)
USCA Case Number 08−3931 for 44 Notice of Appeal filed by Helen Jones−Kelley &Sandra Stephenson. (kk2) (Entered: 07/31/2008)
50 Rule 21 MOTION to Sever Party by Defendant Kerry Weems. (D'Alessandro, Mark) Modified on 8/28/2008 to clarify text (kk2). (Entered: 08/27/2008)
51 ORDER denying without prejudice 50 The Motion to Sever. Signed by James L Graham on 9/2/2008. (bw) (Entered: 09/02/2008)
52 Transcript of Proceedings held on 6/27/2008, before Judge Graham. Court Reporter/Transcriber DENISE N. ERRETT, Telephone number 614−719−3029. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

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09/05/2008 09/08/2008 07/29/2009 08/03/2009 08/11/2009 08/18/2009 08/25/2009 08/25/2009 09/09/2009 09/18/2009
10/01/2009 11/02/2009 11/02/2009

NOTICE RE: REDACTION OF TRANSCRIPTS: Within 5 business days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the party's intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.ohsd.uscourts.gov (Forms − Electronic Availability of Transcripts). Please read this policy carefully.
For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 9/24/2008. Redacted Transcript Deadline set for 10/6/2008. Release of Transcript Restriction set for 12/2/2008. (jcw) (Entered: 09/03/2008)
53 NOTICE of Hearing: The Preliminary Pretrial Conference set for 9/17/2008 @ 1:30 pm has been vacated. (jm1, ) (Additional attachment(s) added on 9/8/2008: # 1 Notice replacement) (jm1, ). (Additional attachment(s) added on 9/8/2008: # 2 Notice) (jm1, ). (Entered: 09/05/2008)
Notice of Correction − the original notice vacating the preliminary pretrial conference set for 9/17/2008 was not electronically signed. That notice was removed and replaced by a signed copy. (jm1, ) (Entered: 09/08/2008)
54 NOTICE of Hearing: Preliminary Pretrial Conference set for 9/2/2009 @ 02:45 PM in chambers before Magistrate Judge Norah McCann King. (jm1, ) (Entered: 07/29/2009)
55 ORDER of USCA as to 44 Notice of Appeal: At this stage of the litigation, the Sixth Circuit will not resolve the substantive legal issues on the merits. Because the District Court did not abuse its discretion in entering the preliminary injunction, the Sixth Circuit AFFIRM. (er1 ) (Entered: 08/03/2009)
56 NOTICE of Hearing: The Preliminary Pretrial Conference set for 9/2/2009 @ 2:45 p.m. has been rescheduled. The Pretrial Conference is now set for 9/16/2009 @ 02:45 PM in chambers before Magistrate Judge Norah McCann King. (jm1, ) (Entered: 08/11/2009)
57 ANSWER to 27 Amended Complaint filed by Charlene M. Frizzera, substituted for by Defendant Kerry Weems. (D'Alessandro, Mark) (Entered: 08/18/2009)
58 MANDATE of USCA as to 44 Notice of Appeal: At this stage of the litigation, the Sixth Circuit will not resolve the substantive legal issues on the merits. Because the District Court did not abuse its discretion in entering the preliminary injunction, the Sixth Circuit AFFIRM. (er1 ) (Entered: 08/25/2009)
59 NOTICE of Appearance by Elizabeth Grace Hartnett Defendant Sandra Stephenson (Hartnett, Elizabeth) (Entered: 08/25/2009)
60 RULE 26(f) REPORT by Plaintiffs K.W., Parents' League for Effective Autism Services (PLEAS), X.C., W.G., Defendants Helen Jones−Kelley, Sandra Stephenson, Kerry Weems. (Atkinson, Michelle) (Entered: 09/09/2009)
61 PRELIMINARY PRETRIAL ORDER: This matter is REFERRED to Robert S. Kaiser, Esq. for mediation, with the hope that mediation can be scheduled 10/2009. Counsel shall call the mediator at 513.564.7330. A continued preliminary pretrial conference will be held following mediation. Discovery is STAYED pending the 11/02/2009, status report. Status Report due by 11/2/2009. Signed by Magistrate Judge Norah McCann King on 09/17/2009. (sr) (Entered: 09/18/2009)
62 Notice of Mediation Conference: Conference to be held in Room 235, 85 Marconi Boulevard, Columbus, Ohio on 10/30/2009 at 10:00 AM. (Attachments: # 1 Conference instructions) (rsk) (Entered: 10/01/2009)
63 Notice of Mediation Conference: Conference to be held in Room 235, 85 Marconi Boulevard, Columbus, Ohio on 12/21/2009 at 10:00 AM. (rsk) (Entered: 11/02/2009)
64 STATUS REPORT Joint Status Report by Defendants Helen Jones−Kelley, Sandra Stephenson, Kerry Weems, Plaintiffs K.W., Parents' League for Effective Autism Services (PLEAS), W.G., X.C.. (Carroll, Roger) (Entered: 11/02/2009)

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02/12/2010
02/19/2010 02/22/2010 05/11/2010
05/21/2010 11/22/2010 12/09/2010
12/13/2010 12/13/2010 01/14/2011
01/26/2011 03/04/2011 03/07/2011 03/07/2011 03/07/2011 03/07/2011 05/02/2011

65 STATUS REPORT ORDER. The parties are ORDERED to report on the status of mediation (but not the substance of their discussions) and the availability of the case for a continued preliminary pretrial conference, by 03/01/2010. Signed by Magistrate Judge Norah McCann King on 02/12/2010. (sr) (Entered: 02/12/2010)
66 Joint Status Report by Defendants Helen Jones−Kelley, Sandra Stephenson, Kerry Weems, Plaintiffs K.W., Parents' League for Effective Autism Services (PLEAS), W.G. &X.C. (Carroll, Roger) (Entered: 02/19/2010)
67 NOTICE of Appearance by Ronda Joy Cress for Plaintiffs K.W., Parents' League for Effective Autism Services (PLEAS), W.G., X.C. (Cress, Ronda) (Entered: 02/22/2010)
68 ORDER : The parties are ORDERED to report on the status of settlement discussions and a continued preliminary pretrial conference by May 21,2010. Signed by Magistrate Judge Norah McCann King on 5/11/10. (rew) (Entered: 05/11/2010)
69 STATUS REPORT by Defendants Helen Jones−Kelley, Sandra Stephenson, Kerry Weems, Plaintiffs K.W., Parents' League for Effective Autism Services (PLEAS), W.G., X.C.. (Mekhjian, Ara) (Entered: 05/21/2010)
70 NOTICE of Hearing: Status Conference set for 12/9/2010 @ 01:30 PM in chambers before Magistrate Judge Norah McCann King. (jm1) (Entered: 11/22/2010)
71 ORDER : In reference to status conference held on 12/09/10. Another status conference will be held on January 14, 2011, at 11:00 a.m. All counsel will have conferred with each other prior to that conference. Signed by Magistrate Judge Norah McCann King on 12/09/10. (rew) (Entered: 12/10/2010)
Set Hearings: Status Conference set for 1/14/2011 11:00 AM before Magistrate Judge Norah McCann King. (pes1) (Entered: 12/13/2010)
72 ORDER re 71 Order is MODIFIED. Plaintiffs will respond to the state defendants proposal no later than December 31, 2010. Signed by Magistrate Judge Norah McCann King on 12/13/10. (rew) (Entered: 12/13/2010)
73 ORDER in reference to status conference held on 1/14/11: It is ORDERED that, counsel for the state defendants will produce to counsel for the United States a draft settlement proposal no later than January 21, 2011 No later than February 11, 2011, counsel for the state defendants will provide to plaintiffs counsel a draft comprehensive settlement agreement, to which plaintiffs will respond by February 28, 2011. Signed by Magistrate Judge Norah McCann King on 1/14/11. (rew) Modified on 1/14/2011 (rew). (Entered: 01/14/2011)
74 NOTICE by Plaintiffs K.W., Parents' League for Effective Autism Services (PLEAS), W.G., X.C. of Withdrawal and Substitution of Trial Counsel (Atkinson, Michelle) (Entered: 01/26/2011)
75 STATUS REPORT JOINT by Defendants Helen Jones−Kelley, Sandra Stephenson, Kerry Weems, Plaintiffs K.W., Parents' League for Effective Autism Services (PLEAS), W.G., X.C.. (Tobin, Susan) (Entered: 03/04/2011)
76 ORDER : The parties will file another joint status report on 5/02/11. Signed by Magistrate Judge Norah McCann King on 3/07/11. (rew) (Entered: 03/07/2011)
SetDeadlines: Status Report due by 5/2/2011. (rew) (Entered: 03/07/2011)
77 MOTION to Withdraw as Attorney by Defendant Sandra Stephenson. (Adair, Jennifer) (Entered: 03/07/2011)
78 ORDER granting 77 Motion to Withdraw as Attorney. Attorney Jennifer Anne Adair terminated. Signed by Magistrate Judge Norah McCann King on 3/7/11. (jr1) (Entered: 03/07/2011)
79 STATUS REPORT by Defendants Helen Jones−Kelley, Sandra Stephenson, Kerry Weems, Plaintiffs K.W., Parents' League for Effective Autism Services (PLEAS), W.G., X.C.. (Mekhjian, Ara) (Entered: 05/02/2011)

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05/24/2011 05/24/2011 08/11/2011
08/11/2011 09/14/2011 09/14/2011
09/15/2011 09/15/2011 09/15/2011 12/15/2011 07/31/2012

80 ORDER : Status conference scheduled on August 11, 2011, at 10:00 a.m., re 79 Status Report. Signed by Magistrate Judge Norah McCann King on 5/24/11. (rew) (Entered: 05/25/2011)
Set Hearings: Status Conference set for 8/11/2011 @ 10:00 AM before Magistrate Judge Norah McCann King. (rew) (Entered: 05/25/2011)
81 ORDER : Primary expert reports due October 31, 2011 and by defendants due 12/15/11.Plaintiffs rebuttal experts reports due 1/31/12. Discovery due 4/30/12. Motions for summary judgment due 5/31/12. Final Pretrial Conference in 11/12. Signed by Magistrate Judge Norah McCann King on 8/11/11. (rew) (Entered: 08/12/2011)
Reset Deadlines: Primary Expert due by 10/31/2011. Rebuttal Expert due by 1/31/2012. Discovery due by 4/30/2012. Dispositive motions due by 5/31/2012. (rew) (Entered: 08/12/2011)
82 STIPULATION of Dismissal by Defendants Helen Jones−Kelley, Sandra Stephenson, Kerry Weems, Plaintiffs K.W., Parents' League for Effective Autism Services (PLEAS), W.G., X.C.. (Carroll, Roger) (Entered: 09/14/2011)
83 Joint MOTION to Dissolve Temporary Restraining Order and Preliminary Injunction by Plaintiffs K.W., Parents' League for Effective Autism Services (PLEAS), W.G., X.C.. (Attachments: # 1 Text of Proposed Order to Dissolve TRO and PI) (Tobin, Susan) (Entered: 09/14/2011)
84 ORDER Granting 83 Joint Motion to Dissolve Temporary Restraining Order and Preliminary Injunction. Signed by Judge James L Graham on 9/15/11. (ds) (Entered: 09/15/2011)
85 ORDER − A status conference will be held on December 16, 2011, at 10:00 a.m. should the case remain pending on that date. Signed by Magistrate Judge Norah McCann King on 9/15/11. (jcw1) (Entered: 09/15/2011)
Set Hearings: Status Conference set for 12/16/2011 10:00 AM before Magistrate Judge Norah McCann King. (jcw1) (Entered: 09/15/2011)
86 STIPULATION of Dismissal Joint by Plaintiffs K.W., Parents' League for Effective Autism Services (PLEAS), W.G., X.C.. (Cress, Ronda) (Entered: 12/15/2011)
87 CLERK'S NOTICE OF DISPOSAL. (jcw1) (Entered: 07/31/2012)