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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI

BETTY HILLEGER Who resides at The Lodge Care Center 9370 Union Cemetery Road Loveland, OH 45140, By and through MARILYN WENMAN her next friend and Attorney-in-Fact 1038 Heron Point Way Deland, FL 32724

CASE NO. 1:13-cv-74 (Judge __________________)

And
GERALDINE A. SAUNDERS Who resides at Close to Home 2812 South 9th Street Ironton, OH 45638, By and through KATHRYN A. PRICE her next friend and Attorney-in-Fact 502 Orchard Street Ironton, OH 45638

CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

PLAINTIFFS,

vs.

JOHN B. MCCARTHY In his official capacity as Medicaid Director, Office of Medical Assistance Ohio Department of Job and Family Services 30 East Broad Street, 32nd Floor Columbus, OH 43266-0423

And

BONNIE KANTOR-BURMAN In her official capacity as Director, Ohio Department of Aging 50 W. Broad Street Columbus, OH 43215-3363

DEFENDANTS.

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INTRODUCTION

1.

This action for declaratory and injunctive relief is brought by and on behalf of

frail and disabled Ohio citizens who qualify for the Medicaid Assisted Living Waiver Program

(hereinafter “Medicaid AL Waiver”), but whose coverage date is being artificially delayed by

Defendants, and who are not given an opportunity to apply for the state-funded Assisted Living

Program (hereinafter “state-funded ALP”) or have applied for the state-funded ALP, but who do

not receive a written denial notice and the opportunity for a fair hearing by Defendants in

violation of the Constitution of the United States, the Social Security Act, and the law of the

State of Ohio, for which Defendants are liable to Plaintiffs under 42 U.S.C. § 1983.

2.

Jurisdiction is conferred on this Court by 28 U.S.C. § 1331 and 28 U.S.C. § 1343.

PARTIES

3.

Plaintiff Betty Hilleger (“Betty Hilleger”) is a resident of Hamilton County, Ohio,

who applied for and was determined eligible for the Medicaid AL Waiver effective October 1,

2012, but whose coverage was artificially delayed until January 1, 2013, when the Defendants

entered her eligibility into their computer system.

4.

Plaintiff Geraldine A. Saunders (“Geraldine A. Saunders”) is a resident of

Lawrence County, Ohio, who applied for and was determined eligible for the Medicaid AL

Waiver effective June 1, 2012, but whose coverage was artificially delayed until July 18, 2012,

when the Defendants entered her eligibility data into their computer system.

5.

Defendant John B. McCarthy (“McCarthy”) is the Medicaid Director of the Office

of Medical Assistance of the Ohio Department of Job and Family Services and is jointly

responsible with Defendant Bonnie Kantor-Burman (“Kantor-Burman”) for the administration of

the Medicaid AL Waiver in Ohio.

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6.

Defendant McCarthy as the Medicaid Director of the Office of Medical

Assistance of the Ohio Department of Job and Family Services is responsible for implementation

of the Medicaid Program in the State of Ohio and is required, pursuant to O.R.C. § 5111.01, to

provide medical assistance in accordance with the federal Medicaid statute, Title XIX of the

Social Security Act, 79 Stat 286 (1965), Ohio law, and the Constitution of the United States.

7.

Defendant McCarthy has acted and continues to act at all relevant times in his

official capacity and under color of state law.

8.

Defendants Kantor-Burman is jointly responsible with Defendant McCarthy for

the administration of the Medicaid AL Waiver, and is responsible for the administration of the

state-funded ALP under the authority found at Ohio Revised Code § 5111.89(D) and the Ohio

Administrative Code Rules 173-51-01 et seq.

9.

Defendant Kantor-Burman has acted and continues to act at all relevant times in

her official capacity and under color of state law.

CLASS ALLEGATIONS

10. There are two subclasses:

Subclass I:

All Ohio individuals who are eligible for the Medicaid AL Waiver but whose

Medicaid AL Waiver coverage is artificially delayed until the Defendants enter

Plaintiffs’ eligibility into their computer.

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Subclass II: All Ohio individuals who are applying for the Medicaid AL Waiver, and who are either not given an opportunity to also apply for the state-funded ALP, or who have applied and have been denied the state-funded ALP and who have not received a written denial notice and an opportunity for a fair hearing. 11. The Named Plaintiffs do not know the exact number of class members but estimate it to be in the thousands. According to Defendants’ Application to the federal government for the Medicaid AL Waiver approval, the number of unduplicated participants in the program is estimated to be 1,800 per year. 12. All Medicaid AL Waiver applicants may also apply for the state-funded ALP. 13. There are questions of law that are common to all class members; namely, whether Defendants’ practice and procedure of delaying the coverage date of eligibility for the Medicaid AL Waiver violates federal and state law and the Constitution of the United States, and whether Defendant Kantor-Burman’s practice and procedure of not providing an opportunity to apply for the state-funded ALP and denying the state-funded ALP without giving written notice of the denial and the opportunity for a fair hearing violates due process of law. 14. There are questions of fact that are common to all class members; namely that each class member’s coverage date for the Medicaid AL Waiver has been artificially delayed. Further, class members are not told about the state-funded ALP, so they do not apply for that program, and if they do apply and are denied, they are not given a written denial notice and the opportunity for a fair hearing. 15. The claims of the Named Plaintiffs are typical of the claims of the class.
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16. The Named Plaintiffs will fairly and adequately protect the interests of the class. The Named Plaintiffs have no interests, which are antagonistic to those of other class members, and are represented by counsel experienced in class action litigation.
17. The Defendants have acted on grounds generally applicable to the class; thus, final injunctive and declaratory relief with respect to the class as a whole is appropriate.
FACTS 18. Defendant McCarthy, in his official capacity as the Medicaid Director of the Office of Medical Assistance of the Ohio Department of Job and Family Services, has voluntarily agreed to participate in the Ohio Medicaid Program, and as such, is required to provide medical assistance in accordance with the mandatory requirements of the Social Security Act. 19. Defendant McCarthy has entered into a contract with the United States Government to provide medical assistance to Medicaid-eligible frail and disabled Ohioans (“Plaintiffs”) who live in assisted living facilities, under a Home and Community Based Waiver known as the Medicaid Assisted Living Waiver (Medicaid AL Waiver) pursuant to § 1915(c) of the Social Security Act, codified at 42 U.S.C. § 1396n(c). 20. The Medicaid AL Waiver is located on the Centers for Medicare/Medicaid Services website at
OH0446 /Medicaid-CHIP-Program-Information/ByTopics/Waivers/Downloads/OH0446.zip
21. The purpose of the Medicaid AL Waiver is to keep Plaintiffs out of nursing homes, to permit such individuals to live in the least restrictive environment possible given their physical and mental limitations, and to permit Plaintiffs to continue living in the community even though they meet the level of care necessary for Medicaid to pay for their care in the higher
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level of care and higher cost environment of a licensed nursing facility. See Ohio Admin. Code § 5101:3-3-08.
22. The target population of the Medicaid AL Waiver consists of individuals who, but for the Waiver, will otherwise live in an institutional, i.e., “nursing home,” environment.
23. As part of the contract to provide medical assistance to Plaintiffs under the Medicaid AL Waiver, Defendant McCarthy must follow all requirements of the Social Security Act, which are not otherwise “waived.”
24. Only three otherwise mandatory federal requirements may be waived under the federal statute authorizing the Medicaid AL Waiver: the waiver need not be operated throughout the state (state-wideness), the population served under the waiver need not be comparable to all populations otherwise entitled to Medicaid (“comparability”), and the income and resource limits may be different from the income and resource rules applied to populations otherwise entitled to Medicaid. 42 U.S.C. § 1396n(c)(3).
25. The effective date of medical assistance is not otherwise “waived” under the Assisted Living Waiver contract referred to in Paragraph 19 herein.
26. The effective date of medical assistance is not one of the federal requirements that may be waived under the Social Security Act.
27. Furthermore, Defendant McCarthy has promised in the Medicaid AL Waiver contract that “[e]ntry to the waiver is offered to individuals based on the date of application for waiver services.” Appendix B-3 f., Waiver Application (emphasis supplied).
28. Section 1902(a)(34) of the Social Security Act, 42 U.S.C. § 1396a(a)(34), requires that Defendant McCarthy provide medical assistance, including services under the
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Medicaid AL Waiver, to Plaintiffs in the month they apply and retroactive three months from the date of application, if they qualify for the program during the retroactive period.
29. Defendant McCarthy has implemented the effective date and three-month mandatory retroactive provision referred to in ¶ 28 herein at Ohio Administrative Code section 5101:1-38-01.2(G)(1)(e) and (G)(1)(c)(iii) to require that Medicaid is effective on the first day of the first month for which Defendant McCarthy receives an application if the applicant is eligible, and eligibility can be retroactive three months.
30. “Medical assistance” includes services under the Medicaid AL Waiver under section 1905(a) of the Social Security Act, 42 U.S.C. § 1396d(a), and section 1915(c) of the Social Security Act, 42 U.S.C. § 1396n(c).
31. Defendants do not provide Medicaid AL Waiver services to eligible applicants beginning the first day of the month in which the individual is eligible and retroactive three months, if applicable, but rather, Defendants artificially delay such effective date.
32. Defendants begin Medicaid AL Waiver services on the date their designated agent, the county department of job and family services’ caseworker, enters the eligibility approval into Defendant McCarthy’s computer system, which is usually months later than the date Plaintiffs are eligible for services under § 1902(a)(34) and § 1915(c) of the Social Security Act, 42 U.S.C. §§ 1396a(a)(34) and 1396n(c), leaving a gap in coverage.
33. Defendants artificially delay the Plaintiffs’ coverage for services under the Medicaid AL Waiver until the date the Defendant McCarthy’s caseworker enters the Medicaid eligibility date into his or her computer system, even though Plaintiffs are eligible for such coverage the first day of the first month they meet all of the Medicaid eligibility criteria, including, when applicable, the three-month period prior to the application date.
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34. Defendants‘ agents, when approving Plaintiffs for Medicaid AL Waiver services, change the date of application from the actual date Plaintiffs apply to the date the caseworker physically enters the approval into Defendant’s computer system, and sometimes, to the first day of the month the caseworker completes the approval paperwork.
35. The Defendants’ agents can take months to process the approval paperwork. 36. Defendant McCarthy has an interagency agreement with Defendant KantorBurman to coordinate the determination of Plaintiffs’ eligibility for the Medicaid AL Waiver. 37. Defendant McCarthy determines the Plaintiffs’ financial eligibility for the Medicaid AL Waiver. 38. Defendant Kantor-Burman determines the Plaintiffs’ non-financial eligibility for the Medicaid AL Waiver. 39. Defendant Kantor-Burman is required to notify Plaintiffs of the availability of the “state-funded” ALP, and to provide coverage to Plaintiffs if Plaintiffs are eligible for this program, in accordance with Ohio Administrative Code § 173-51-02 as authorized by O.R.C. §§ 173.01, 173.02, and Chapter 5111. 40. Defendant Kantor-Burman must provide a written denial notice and the opportunity for a fair hearing when Plaintiffs are denied the state-funded ALP, as required by the due process clause of the Fourteenth Amendment of the Constitution of the United States and Ohio Administrative Code § 173-51-03(D). 41. Defendant Kantor-Burman fails to notify Plaintiffs of the availability of the statefunded ALP, and if Plaintiffs apply for this program, fails to provide written notice of denial and the opportunity for a fair hearing to Plaintiffs if they are denied the state-funded ALP.
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42. Plaintiff Betty Hilleger is a resident of The Lodge Care Center assisted living section and has lived there since 2008, spending all of her assets and all of her income on her care. She is 89 years of age.
43. Betty Hilleger applied for the Medicaid AL Waiver on October 19, 2012. 44. Betty Hilleger was found by Defendants to meet all eligibility requirements for the Medicaid AL Waiver effective October 1, 2012. 45. Defendant McCarthy’s agent entered Betty Hilleger’s approval for the Medicaid AL Waiver into Defendants’ computer system on January 7, 2012, approximately three months after she had applied. 46. Defendants artificially delayed Betty Hilleger’s Medicaid AL Waiver coverage until January 1, 2013, even though Defendants’ agents determined she met all requirements for coverage effective October 1, 2012. 47. Betty Hilleger requested from Defendant Kantor-Burman and her agent, the Council on Aging of Southwest Ohio, that she be determined eligible for the state-funded ALP in accordance with Ohio Administrative Code § 173-51-02. 48. Defendant Kantor-Burman erroneously denied Betty Hilleger the state-funded ALP. 49. Defendant Kantor-Burman failed to provide Betty Hilleger with a written denial notice and the opportunity for a fair hearing of the denial of the state-funded ALP. 50. When Betty Hilleger applied for the Medicaid AL Waiver, she had assets less than $1,500 and countable monthly income less than $2,094. 51. Had Betty Hilleger been living in a nursing home on October 1, 2012, Defendant McCarthy would have begun Medicaid coverage effective October 1, 2012.
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52. Betty Hilleger met all eligibility requirements for the Medicaid AL Waiver on October 1, 2012.
53. But for the Medicaid AL Waiver, Betty Hilleger would have been institutionalized in a nursing home.
54. Defendants wrongly changed Betty Hilleger’s Medicaid AL Waiver application date from October 1, 2012 to January 1, 2013, the first day of the month the caseworker entered the Medicaid AL Waiver approval into Defendants’ computer system.
55. Geraldine A. Saunders applied for the Medicaid AL Waiver on June 25, 2012. 56. Geraldine A. Saunders was found by Defendants to meet all eligibility requirements for the Medicaid AL Waiver effective June 1, 2012. 57. Defendant’s agents entered Geraldine A. Saunders’ eligibility for the Medicaid AL Waiver into their computer system on July 18, 2012. 58. Defendant Kantor-Burman’s agent, the Area Agency on Aging, failed to inform Geraldine A. Saunders about the state-funded ALP in accordance with Ohio Administrative Code § 173-51-02, nor was she given an opportunity to apply for that program. 59. Defendants artificially delayed Geraldine A. Saunders’ Medicaid AL Waiver coverage until July 18, 2012, even though Defendant McCarthy’s agents determined she met all requirements for coverage effective June 1, 2012. 60. Geraldine A. Saunders met all criteria for the state-funded ALP in accordance with Ohio Administrative Code § 173-51-02. 61. When Geraldine A. Saunders applied for the Medicaid AL Waiver, she had assets less than $1,500 and countable monthly income less than $2,094.
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62. Had Geraldine A. Saunders been living in a nursing home on June 1, 2012, Defendant McCarthy would have begun Medicaid coverage effective June 1, 2012.
63. Geraldine A. Saunders met all eligibility requirements for the Medicaid AL Waiver on June 1, 2012.
64. But for the Medicaid AL Waiver, Geraldine A. Saunders would have been institutionalized in a nursing home.
65. Defendants wrongly changed Geraldine A. Saunders’ Medicaid AL Waiver application date from June 1, 2012 to July 18, 2012, the date the caseworker entered the Medicaid AL Waiver approval into Defendants’ computer system.
CLAIMS CLAIM ONE: ELIGIBILITY DATE 66. By failing to begin the Medicaid AL Waiver as of the date Plaintiffs meet all eligibility requirements (and retroactive three months, if applicable), and by changing the application date to the date the approval is entered into Defendants’ computer system, Defendants artificially delay the effective date of Medicaid in violation of § 1902(a)(34) of the Social Security Act, 42 U.S.C. § 1396a(a)(34), for which they are liable to Plaintiffs under 42 U.S.C. § 1983.
CLAIM TWO: DUE PROCESS 67. Defendant Kantor-Burman fails to provide Plaintiffs with the opportunity to apply for the state-funded ALP, and fails to provide Plaintiffs with written notice and the opportunity for a fair hearing when Plaintiffs are denied state-funded ALP, in violation of the due process clause of the Fourteenth Amendment to the Constitution of the United States and Ohio
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Administration Code § 173-51-03(D), for which she is liable to Plaintiffs under 42 U.S.C. § 1983.
WHEREFORE, Named Plaintiffs and the proposed class pray that the Court: A. Assume jurisdiction of this case; B. Certify this as a class action under Rule 23(b)(2) of the Federal Rules of Civil
Procedure; C. Enter a declaratory judgment that:
i. Defendants’ policy of artificially delaying the coverage date of the Medicaid AL Waiver until the caseworker enters the date into Defendants’ computer system and Defendants’ practice of changing the application date violates 42 U.S.C. § 1396a(a)(34);
ii. Defendant Kantor-Burman’s failure to provide an opportunity to apply for the state-funded ALP and the failure to give written denial notices and the opportunity for a fair hearing violates the due process clause of the Fourteenth Amendment of the Constitution of the United States;
D. Enter a permanent injunction enjoining Defendants from artificially delaying Plaintiffs and all class members’ coverage under the Medicaid AL Waiver;
E. Enter an order requiring Defendants to identify and provide written notice to Plaintiffs and all class members that their Medicaid AL Waiver coverage will begin the date they meet all eligibility criteria;
F. Require Defendants to identify all class members whose coverage did not begin on the date of Medicaid eligibility, re-determine their eligibility for Medicaid AL Waiver, begin coverage on the date they meet the eligibility criteria for Medicaid,
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and provide written notice and the opportunity for a fair hearing of the
redetermination to all such identified class members;
G. Enter an order requiring Defendant Kantor-Burman to provide Plaintiffs and all
class members the opportunity to apply for the state-funded ALP, and to give
written notice and the opportunity for a fair hearing for all Plaintiffs and all class
members who are denied the state-funded ALP;
H. Award Plaintiffs attorneys’ fees and costs, pursuant to 42 U.S.C. § 1988; and
I. Award Plaintiffs any other just and equitable relief this Court deems appropriate.
Respectfully submitted,
/s/ Janet E. Pecquet Janet E. Pecquet (#0013411) Peter L. Cassady (#0005562) Ashley J. Shannon (#0084964) BECKMAN WEIL SHEPARDSON LLC The American Book Building 300 Pike Street, Suite 400 Cincinnati, OH 45202 Telephone: 513-621-2100 Facsimile: 513-621-2100 jpecquet@beckman-weil.com petercassady@beckman-weil.com ashannon@beckman-weil.com
Attorneys for Plaintiffs
PRAECIPE FOR SERVICE
Service is to be made upon Defendants JOHN B. MCCARTHY and BONNIE KANTORBURMAN by certified mail, returnable according to law, at the address set forth on the first page above.
/s/ Janet E. Pecquet Janet E. Pecquet (#0013411)
T:\Hilleger\Betty - 23.0973\Class Action\Complaint Revised 1.28.13.doc
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI

KATHRYN A. PRICE next friend and Attorney-in-Fact for GERALDINE A. SAUNDERS 502 Orchard Street Ironton, OH 45638
And
MARILYN A. WENMAN, EXECUTOR FOR THE ESTATE OF BETTY HILLEGER,DECEASED 1038 Heron Point Way Deland, FL 32724
PLAINTIFFS,
vs.
JOHN B. MCCARTHY Ohio Department of Medicaid In his official capacity as Director, 30 East Broad Street, 32nd Floor Columbus, OH 43266-0423
And
BONNIE KANTOR-BURMAN Ohio Department of Aging In her official capacity as Director, 50 W. Broad Street Columbus, OH 43215-3363
DEFENDANTS.

CASE NO. 1:13-cv-74 Magistrate Judge Litkovitz
FIRST AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

EXHIBIT B

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INTRODUCTION 1. This action for declaratory and injunctive relief is brought by and on behalf of disabled Ohio citizens who, due to significant health care needs, low incomes, and depleted savings, qualify for the Medicaid Assisted Living Waiver Program (''Medicaid AL Waiver") and/or the state-funded Assisted Living Program ("State-Funded ALP"). In violation of federal Medicaid law and due process protections, Defendants fail to cover assisted living services in or after the third month prior to an individual 's date of application, even though Plaintiffs are otherwise determined to meet eligibility requirements. Also, in violation of due process protections, Plaintiffs are not given an opportunity to apply for the State-Funded ALP, or if they have applied for the State-Funded ALP, Plaintiffs have not received written denial notices and the opportunity for a fair hearing. As a result of Defendants' actions, Plaintiffs are unable to pay for necessary assisted living services.
JURISDICTION 2. Defendants act in violation of the Constitution of the United States, federal Medicaid law, and the law of the State of Ohio, for which Defendants are liable to Plaintiffs under 42 U.S.C. § 1983. 3. Jurisdiction is conferred on this Court by the Supremacy Clause of the Constitution ofthe United States, and by 28 U.S.C. §§ 1331 and 1343.
PARTIES 4. Plaintiff Marilyn A. Wenman is the Executor of the Estate of Betty Hilleger, Deceased, Case Number 2013005056, in the Probate Court of Hamilton County, Ohio. Ms. Hilleger resided at The Lodge Care Center in Hamilton County, Ohio, which contains a licensed residential care facility certified to participate in the Medicaid AL Waiver and the State-Funded
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ALP. Ms. Hilleger applied for the Medicaid AL Waiver, and was determined to meet eligibility

requirements effective October 1, 2012, but her coverage under the Medicaid AL Waiver did not

begin until January 1, 20 13. She received no coverage under the State-Funded ALP.

5. Plaintiff Geraldine A. Saunders is a resident of Lawrence County, Ohio. She

resided in Close at Home III (Ironton, Ohio), which is a licensed residential care facility certified

to participate in the Medicaid AL Waiver and the State-Funded ALP. Ms. Saunders applied for

the Medicaid AL Waiver and was determined to meet eligibility requirements effective June 1,

2012, but her coverage under the Medicaid AL Waiver did not begin until July 18, 2012. She

received no coverage under the State-Funded ALP.

6. Defendant John B. McCarthy is the Director of the Ohio Department of Medicaid.

He has acted and continues to act at all relevant times in his official capacity and under color of

state law.

7.

Defendant Bonnie Kantor-Burman is Director of the Ohio Department of Aging.

She has acted and continues to act at all relevant times in her official capacity and under color of

state law.

8. In this First Amended Complaint, Defendants McCarthy and Kantor-Burman are

referred to as ''Defendant ODM" and "Defendant ODA,'' respectively.

9. Defendant ODM is responsible for implementation of the Medicaid Program in the

State of Ohio and is required, pursuant to Ohio Rev. Code § 5162.01 , to provide Medicaid-

funded medical assistance in accordance with federal Medicaid law (42 U.S.C. §§ 1396 -

1396w-5), Ohio law, and the Constitution of the United States.

10. Defendant ODM and Defendant ODA are jointly responsible for administration of

the Medicaid AL Waiver.

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11. Defendant ODA is responsible for the administration of the State-Funded ALP under the authority of Ohio Rev. Code §§ 173.543 through 173.544, and Ohio Admin. Code §§ 173-51-01 through 173-51-05.
CLASS ALLEGATIONS 12. There are two subclasses:
Subclass 1: All Ohio individuals who meet eligibility standards for the AL Waiver for months occurring no earlier than three months prior to the month of application, but are denied coverage under the AL Waiver for all or some of those months. Subclass II: All Ohio individuals who apply for the Medicaid AL Waiver, and who are either not given an opportunity to also apply for the State-Funded ALP, or who have applied and have been denied the State-Funded ALP without receiving a written denial notice and an opportunity for a fair hearing. 13. The Named Plaintiffs do not know the exact number of class members but estimate it to be in the thousands. Approximately 4,000 individuals currently are enrolled in the Medicaid AL Waiver. 14. There are questions of law common to all class members; namely, whether Defendants' delay in implementing eligibility for the Medicaid AL Waiver violates federal Medicaid law and due process protections, and whether Defendant ODA ' s practice and procedure of not providing an opportunity to apply for the State-Funded ALP and denying eligibility for the State-Funded ALP without giving written notice of the denial and an opportunity for a fair hearing violates due process protections.
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15. There are questions of fact that are common to all class members; namely, whether each class member' s eligibility for the Medicaid AL Waiver has been delayed, and whether class members have been told about the State-Funded ALP and, if they have applied and been denied, whether they have been given a written denial notice and the opportunity for a fair hearing.
16. The claims of the Named Plaintiffs are typical of the claims of class members. 17. The Named Plaintiffs will fairly and adequately protect the interests of the class. The Named Plaintiffs have no interests which are antagonistic to those of other class members, and are represented by counsel experienced in class action litigation. 18. Defendants have acted on grounds generally applicable to the class; thus, final injunctive and declaratory relief with respect to the class as a whole is appropriate.
COVERAGE FOR ASSISTED LIVING SERVICES IN OHIO Medicaid AL Waiver
19. A state is not obligated to participate in the Medicaid program but, once a state has agreed to participate, it must comply with all relevant requirements of federal Medicaid law. The State of Ohio, through Defendant ODM, has voluntarily agreed to participate in the Medicaid Program and accordingly must provide medical assistance in accordance with federal Medicaid law.
20. One provision of federal Medicaid law addresses the effective date of Medicaid eligibility. Retroactive eligibility is particularly important to Medicaid beneficiaries because they by definition have very limited financial resources, and because state Medicaid programs may require multiple months in order to process applications. To ensure that the application process does not result in a beneficiary being left without coverage for weeks or months, federal law requires a Medicaid program to provide medical assistance for up to three months prior to
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the month of an individual's application, for any month during that period for which the applicant is found to have met eligibility requirements. 42 U.S.C. § 1396a(a)(34); 42 C.F.R. § 435.915.
21. Federal Medicaid law requires that medical assistance be provided with reasonable promptness. 42 U.S .C. § 1396a(a)(8); 42 C.F.R. § 435.930(a)-(b).
22. Federal Medicaid law requires that, when a Medicaid program makes a decision adverse to an applicant or beneficiary, he or she must be given a written notice of that decision and the right to seek a fair hearing, in accordance with constitutional standards of due process. 42 U.S.C. § 1396a(a)(3); 42 C.F.R. §§ 431.206, 431.206; Goldberg v. Kelly, 397 U.S. 254 (1970).
23. Under federal Medicaid law, specifically 42 U.S.C. § 1396n(c), a state may request permission from the federal government to offer a package of home and conununity-based services ("'HCBS'') to Medicaid beneficiaries who have care needs that otherwise would require admission to a nursing facility. ("Nursing facility" is the term used by federal law to refer to facilities that in the vernacular commonly are described as "nursing homes" or "convalescent hospitals.") Defendant ODM has requested and received such permission through the Medicaid AL Waiver, which authorizes provision of assisted living services.
24. The purpose of the Medicaid AL Waiver is to enable disabled Medicaid beneficiaries to live and receive necessary care in the more home-like environment of an assisted living facility, rather than a nursing facility.
25. The Medicaid AL Waiver is termed a "waiver" because 42 U.S.C. § 1396n(c) allows the federal government to waive three otherwise mandatory requirements for the waiver's operation. Under such waiver authority: 1) the waiver program need not be operated throughout
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a state, 2) need not be made available to every Medicaid eligibility group, and 3) need not use the same income and resource mles applicable in other aspects of the Medicaid program. 42 U.S .C. § 1396n(c)(3).
26. The waiver authority under section 1396n(c)(3) does not authorize waiver of the provisions of federal Medicaid law which set the effective date of medical assistance, require that medical assistance be provided with reasonable promptness, and establish due process protections.
27. 42 U.S.C. § 1396a(a)(34) and its implementing regulation, 42 C.F.R. § 435.915 , require that Defendant ODM provide medical assistance, including services under the Medicaid AL Waiver, up to three months prior to the month of an individual's application, for any month during that period for which the applicant is found to have met eligibility requirements. This same requirement is set forth in Ohio law at Ohio Admin. Code section 5160: 1-201.2(G)(l)(c)(iii), (e).
28. To the extent that Ohio Admin. Code § 5160-33-04(C) limits retroactive coverage under the Medicaid AL Waiver, the regulation is preempted by relevant federal law, specifically 42 U.S.C. § 1396a(a)(34) and 42 C.P.R.§ 435.915.
29. In administering the Medicaid AL Waiver, Defendants do not offer retroactive coverage. Eligibility is based solely on the enrollment date and is established prospectively only. The notice given to applicants does not give adequate notice when an applicant is being denied coverage for months in which she met eligibility requirements but was not yet enrolled into the program, due to Defendants' prospective-only policies for operation of the Medicaid AL Waiver.
30. Defendants' practices penalize applicants seeking Medicaid coverage for assisted living services, as compared to those seeking Medicaid coverage for nursing facility services.
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Consistent with 42 U.S.C. §§ 1396a(a)(34) and 42 C.F.R. § 435.915, Defendants extend Medicaid coverage for nursing facility services for up to three months prior to the month of application, for any months dming that period in which an applicant has met eligibility requirements.
State-Funded ALP 31 . The State-Funded ALP is administered by Defendant ODA pursuant to Ohio Rev. Code §§ 173.543 through 173.547, and Ohio Admin. Code §§ 173-51-01 through 173-51-05. The State-Funded ALP allows for coverage of assisted living services starting from on or about the date of application for the Medicaid AL Waiver, until coverage for the Medicaid AL Waiver is either initiated or denied. Ohio Rev. Code§ 173.544; Ohio Admin. Code§§ 173-51-02(A)(3), 173-51-03(A)(2), (3). Coverage under the State-Funded ALP is limited to no more than 90 days, under the assumption that an applicant's eligibility for the Medicaid AL Waiver will be determined within that 90 days. Ohio Rev. Code§ 173.543; Ohio Admin. Code§ 173-51-02(C). 32. Defendant ODA is required to provide coverage under the State-Funded ALP if Defendant ODA 1) has determined that an individual meets the non-financial requirements of the Medicaid AL Waiver (needing an intermediate level of care, and residing in a certified residential care facility), and 2) Defendant ODA does not have reason to doubt that the individual meets the financial requirements of the Medicaid AL Waiver. Ohio Rev. Code § 173.544(8); Ohio Admin. Code§ 173-5 1-02(A)(3), (4). 33. Defendant ODA must provide a written denial notice and the opportunity for a fair hearing when Plaintiffs are denied coverage under the State-Funded ALP, as required by the due process clause of the Fourteenth Amendment of the Constitution of the United States, Ohio Rev. Code § 173.545, and Ohio Admin. Code § 173-51-03(D).
8

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34. Defendant ODA fails to notify Plaintiffs of the availability of the State-Funded ALP, and if Plaintiffs apply for this program, fails to provide written notice of denial and the opportunity for a fair hearing to Plaintiffs if they are denied.
FACTS CONCERNING NAMED PLAINTIFFS 35. Betty Hilleger was a resident of the assisted living section of The Lodge Care Center beginning in 2008, eventually spending all of her savings on care expenses. Shortly before her death on September 19, 2013, Ms. Hilleger moved within The Lodge Care Center from the assisted living section to the nursing facility section. 36. Through a duly designated authorized representative, Ms. Hilleger applied for the Medicaid AL Waiver on October 19, 2012. At the time, she was 89 years old. Due to dementia and frailty, she could not handle her own affairs. 37. Ms. Hilleger was found by Defendants to meet the eligibility requirements for the Medicaid AL Waiver effective October 1, 2012, the first day of the month during which Ms. Hilleger had applied. Nonetheless, Defendant ODM established an eligibility enrollment date of January 4, 2013, almost three months after she had applied. As a result, Ms. Hilleger did not receive financial assistance to pay for assisted living services in October, November and December of 2012, despite the determination that during those months her savings had been spent below the Medicaid eligibility level of $1,500 and she was eligible for coverage during those three months. 38. Ms. Hilleger received a notice regarding the eligibility effective date, but that notice did not give her adequate notice that she was being denied coverage for months in which she met eligibility requirements.
9

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39. Through her representative, Ms. Hilleger requested from Defendant ODA and its agent, the Council on Aging of Southwest Ohio, that she be determined eligible for the StateFunded ALP. Defendant ODA, however, had Ms. Hilleger (who, due to dementia, was incapable of handling her own affairs) sign a statement that she did not wish to enroll in the State-Funded ALP.
40. Defendant ODA then denied Ms. Hilleger eligibility for the State-Funded ALP but failed to mail the denial notice, thereby failing to give Ms. Hilleger a written denial notice and the opportunity for a fair hearing.
41. At the time Ms. Hilleger's application was submitted for the Medicaid AL Waiver, she had assets of less than $1,500 and countable monthly income less than $2,094. Had she been living in a nursing facility on October I, 2012, and subsequently, Defendant ODM would have begun Medicaid coverage for nursing facility services effective October 1, 2012.
42. Ms. Hilleger met all eligibility requirements for the Medicaid AL Waiver on October 1, 2012 and subsequently.
43. But for the Medicaid AL Waiver, Betty Hilleger would have been institutionalized in a nursing facility.
44. Plaintiff Geraldine A. Saunders lived in her home in the early pm1 of 2012, but she then suffered a stress fracture, which required hospitalization, followed by a stay in a nursing facility in order to receive necessary rehabilitation services. Following the nursing facility stay, she moved into the Close in Home residential care facility on June 25 , 2012. On the same day, through a duly designated authorized representative, she applied for the Medicaid AL Waiver.
45. Plaintiff Saunders was found by Defendants to meet all eligibility requirements for the Medicaid AL Waiver effective June 1, 2012. Nonetheless, Defendants established an
10

Case: 1:13-cv-00074-KLL Doc #: 56 Filed: 11/13/14 Page: 11 of 16 PAGEID #: 174
enrollment date of July 18, 2012. As a result, Ms. Saunders did not receive financial assistance to pay for assisted living services for the period from June 1 through July 18, 2012, despite the determination that during that time her savings had been spent below the Medicaid eligibility level of $1 ,500 and she was eligible for Medicaid coverage.
46. Ms. Saunders received a notice regarding the eligibility effective date, but that notice did not give her adequate notice that she was being denied coverage for the period in which she met eligibility requirements but was not yet enrolled into the Medicaid AL Waiver.
47. Defendant ODA' s agent, the Area Agency on Aging, had Ms. Saunders' representative, her daughter, sign a statement that Ms. Saunders did not wish to enroll in the State-Funded ALP. This document was presented to Ms . Saunders' representative with no explanation of what the State-Funded ALP is, or how the State-Funded ALP could cover months that would be uncovered by the Medicaid AL Waiver.
48. During June and July 2012, Plaintiff Saunders met all criteria for the State-Funded ALP.
49. When Plaintiff Saunders applied for the Medicaid AL Waiver, she had assets of less than $1 ,500 and countable monthly income less than $2,094. Had she been living in a nursing facility on June 1, 2012, and subsequently, Defendant ODM would have begun Medicaid coverage for nursing facility services effective June 1, 2012.
50. Plaintiff Saunders met all eligibility requirements for the Medicaid AL Waiver on June 1, 2012, and subsequently.
51 . But for the Medicaid AL Waiver, Plaintiff Saunders would have been institutionalized in a nursing facility.
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Case: 1:13-cv-00074-KLL Doc #: 56 Filed: 11/13/14 Page: 12 of 16 PAGEID #: 175
CLAIMS CLAIM ONE: FAILURE TO ESTABLISH APPROPRIATE DATE OF ELIGIBILITY
IN OPERATION OF MEDICAID AL WAIVER (By Plainttifs Hilleger and Saunders, and Subclass I, Against all Defendants) 52. Plaintiffs reallege and incorporate each and every allegation and paragraph set forth previously. 53. Defendants' operation and administration of the Medicaid AL Waiver is subject to federal Medicaid law including but not limited to 42 U.S.C. § 1396a(a)(34) and 42 C.P.R. § 435.915. Accordingly, Defendants are obligated to offer coverage of Medicaid AL Waiver services up to three months prior to the month of application and subsequently, for applicants who meet eligibility requirements during those months. 54. By failing to begin Medicaid AL Waiver services during the first month in which Plaintiffs meet all eligibility requirements, up to three months prior to the month of application, Defendants violate 42 U.S.C. § 1396a(a)(34) and its implementing regulation, 42 C.P.R. § 435.915 , for which they are liable to Plaintiffs under 42 U.S.C. § 1983.
CLAIM TWO: DENIAL OF DUE PROCESS IN OPERATION OF MEDICAID AL WAIVER (By Plaintiffs Hilleger and Saunders, and Subclass I, Against All Defendants) 55. Plaintiffs reallege and incorporate each and every allegation and paragraph set forth previously. 56. Defendants' operation and administration of the Medicaid AL Waiver is subject to federal Medicaid law including but not limited to 42 U.S.C. § 1396a(a)(3) and 42 C .P.R.
12

Case: 1:13-cv-00074-KLL Doc #: 56 Filed: 11/13/14 Page: 13 of 16 PAGEID #: 176
§§ 431.205 and 431.206. Accordingly, Defendants are obligated to provide applicants with written notice of eligibility determinations, including notice of the right to a fair hearing.
57. By failing to adequately notify Plaintiffs that they have been denied coverage under the Medicaid AL Waiver for the time between the effective date of Medicaid eligibility and the date in which they are enrolled into the Medicaid AL Waiver, Defendants violate 42 U.S .C. 1396a(a)(3) and its implementing regulations, 42 C.F.R. §§ 431.205 and 431.206, for
which they are liable to Plaintiffs under 42 U.S.C. § 1983.
CLAIM THREE: FAILURE TO PROVIDE MEDICAL ASSISTANCE WITH REASONABLE PROMPTNESS IN OPERATION OF MEDICAID AL WAIVER
(By Plaintiffs Hilleger and Saunders, and Subclass I, Against All Defendants) 58. Plaintiffs reallege and incorporate each and every allegation and paragraph set forth previously. 59. Defendants' operation and administration of the Medicaid AL Waiver is subject to federal Medicaid law including but not limited to 42 U.S.C. § 1396a(a)(8) and 42 C.F.R. § 435.930(a)-(b). Accordingly, Defendants are obligated to provide medical assistance to Plaintiffs with reasonble promptness. 60. By failing to begin Medicaid AL Waiver services during the first month in which Plaintiffs meet all eligibility requirements, up to three months prior to the month of application, Defendants violate 42 U.S.C. § 1396a(a)(8) and its implementing regulation, 42 C.F.R. § 435.930(a)-(b), for which they are liable to Plaintiffs under 42 U.S.C. § 1983.
13

Case: 1:13-cv-00074-KLL Doc #: 56 Filed: 11/13/14 Page: 14 of 16 PAGEID #: 177

CLAIM FOUR: DENIAL OF DUE PROCESS

IN OPERATION OF STATE-FUNDED ALP

(By Plaintiffs Hilleger and Saunders, and Subclass II, Against Defendant ODA)

61 . Plaintiffs reallege and incorporate each and every allegation and paragraph set

f011h previously.

62. Defendant ODA' s operation and administration of the State-Funded ALP is subject

to the due process clause of the Fourteenth Amendment to the Constitution of the United States,

and to Ohio Admin. Code§ 173-51-01 through 173-51-05.

63 . By failing to provide Plaintiffs with the opportunity to apply for the State-Funded

ALP, and failing to provide Plaintiffs with written notice and the opportunity for a fair hearing

when Plaintiffs are denied State-Funded ALP, Defendant ODA violates the due process clause of

the Fourteenth Amendment to the Constitution of the United States, and Ohio Admin. Code

§ 173-51-03(D), for which Defendant ODA is liable to Plaintiffs under 42 U.S.C. § 1983.

WHEREFORE, Named Plaintiffs and the proposed class pray that the Court:

A. Assume jurisdiction of this case;

B. Certify this case as a class action under Rule 23(b)(2) of the Federal Rules of

Civil Procedure;

C. Enter a declaratory judgment that:

1.

Defendants' failure to grant retroactive eligibility for the Medicaid AL

Waiver violates 42 U.S.C. § 1396a(a)(3), (a)(8), and (a)(34), and

implementing regulations 42 C.F.R. §§ 431.205, 431.206, 435.915, and

435.930(a)-(b);

14

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11. Defendants' failure to notify applicants that they are being denied coverage for months in which they met eligibility requirements, violates the due process clause of the Fourteenth Amendment of the United States Constitution.
111. Defendant ODA's failure to provide an opportunity to apply for the StateFunded ALP, and the failure to give written denial notices and the opportunity for a fair hearing violates the due process clause of the Fourteenth Amendment of the Constitution ofthe United States;
D. Enter a permanent injunction enjoining Defendants from denying Plaintiffs eligibility for the Medicaid AL Waiver for months in which they are determined to meet eligibility standards, for as to early as three months prior to the month in which an application is made;
E. Enter an order requiring Defendants to identify and provide written notice to Plaintiffs and all class members that their Medicaid AL Waiver coverage will begin in the month in which they meet all eligibility criteria, up to three months prior to the month of application;
F. Require Defendants to identify all class members whose coverage did not begin in the first month in which all eligibility requirements were met (up to three months prior to the month of application), redetermine their eligibility for the Medicaid AL Waiver with coverage beginning on the first day of the month in which all eligibility criteria were met, and provide written notice and the opportunity for a fair hearing of the redetermination to all such identified class members, with the notice explaining the reasoning for setting the month in which coverage starts;
15

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G. Enter an order requiring Defendant ODA to provide Plaintiffs and all class

members the opportunity to apply for the State-Funded ALP, and to give written

notice and the opportunity for a fair hearing to all Plaintiffs and all class members

who are denied eligibility for the State-Funded ALP;

H. Award Plaintiffs attorneys' fees and costs, pursuant to 42 U.S.C. § 1988; and

I.

Award Plaintiffs any other just and equitable relief this Court deems appropriate.

Respectfully submitted,

Is/ Janet E. Pecquet Janet E. Pecquet (#0013411) Peter L. Cassady (#0005562) Ashley J. Shannon (#0084964) BECKMAN WElL SHEPARDSON LLC The American Book Building 300 Pike Street, Suite 400 Cincinnati, OH 45202 Telephone: 513-621-2100 Facsimile: 513-621-2100 jpecquet@beckman-weil.com petercassady@beckman-weil.com ashannon@beckman-weil.com

Eric M. Carlson (CA # 141538) NATIONAL SENIOR CITIZENS LAW CENTER 3701 Wilshire Boulevard, Suite 750 Los Angeles, CA 900 10 Telephone: 213-674-2813 Facsimile: 213-368-0774 ecarlson@nsclc.org

Anna M. Rich (CA # 230195) NATIONAL SENIOR CITIZENS LAW CENTER 1330 Broadway, Suite 525 Oakland, CA 94612 Telephone: 415-663-1055 Facsimile: 415-663-1051 arich@ nsclc .o r g

Attorneys for Plaintiffs

T :\Hilleger · Saunder;\C iass Action - 9753\Pieadings<~ mended complaint clean - 12.17.13.docx

16

 
 Case: 1:13-cv-00074-KLL Doc #: 60 Filed: 12/10/14 Page: 1 of 2 PAGEID #: 211

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI

KATHRYN A. PRICE, et al., PLAINTIFFS,
vs. OFFICE OF MEDICAL ASSISTANCE, et al.
DEFENDANTS.

CASE NO. 1:13-cv-74
Magistrate Judge Litkovitz
JOINT STIPULATION OF DISMISSAL WITHOUT PREJUDICE OF CLAIM FOUR OF THE FIRST AMENDED COMPLAINT

By Joint Stipulation of the parties, Claim Four and Paragraph G. of the request for relief of Plaintiff’s First Amended Complaint are dismissed without prejudice.

Magistrate Judge Litkovitz

/s/Janet E. Pecquet Janet E. Pecquet (#0013411) Peter L. Cassady (#0005562) Ashley J. Shannon (#0084964) BECKMAN WEIL SHEPARDSON LLC 300 Pike Street, Suite 400 Cincinnati, OH 45202 Telephone: 513-621-2100 Facsimile: 513-621-0106 jpecquet@beckman-weil.com petercassady@beckman-weil.com ashannon@beckman-weil.com

/s/ Cheryl R. Hawkinson Cheryl R. Hawkinson (#0055429) Amy Goldstein (#0015740) Assistant Attorneys General Health and Human Services Section 30 East Broad Street, 26th Floor Columbus, OH 43215 Telephone: 614-466-8600 Facsimile: 614-466-6090 cheryl.hawkinson@ohioattorneygeneral.gov amy.goldstein@ohioattorneygeneral.gov Attorneys for Defendants

Case: 1:13-cv-00074-KLL Doc #: 60 Filed: 12/10/14 Page: 2 of 2 PAGEID #: 212
Eric M. Carlson (CA #141538) NATIONAL SENIOR CITIZENS LAW CENTER 3701 Wilshire Boulevard, Suite 750 Los Angeles, CA 90010 Telephone: 213-674-2813 Facsimile: 213-368-0774 ecarlson@nsclc.org Anna M. Rich (CA # 230195) NATIONAL SENIOR CITIZENS LAW CENTER 1330 Broadway, Suite 525 Oakland, CA 94612 Telephone: 415-663-1055 Facsimile: 415-663-1051
arich@nsclc.org
Attorneys for Plaintiffs
T:\Hilleger - Saunders\Class Action - 9753\Pleadings\Joint Stipulation of Dismissal Claim 4.docx
2

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

KATHRYN A. PRICE, et al., Plaintiffs,

Case No. 1:13-cv-74 Litkovitz, M.J.

vs.

MEDICAID DIRECTOR, OFFICE OF MEDICAL ASSISTANCE, et al.,
Defendants.

ORDER

I. INTRODUCTION

The State of Ohio’s Medicaid assisted living waiver program pays for home and

community-based services provided to qualified low income, elderly individuals who otherwise

would require care in an institutional or nursing home environment. The named plaintiffs in this case, Betty Hilleger and Geraldine A. Saunders,1 applied for assisted living waiver benefits

under the Ohio program. Both were found eligible for assisted living waiver benefits. However,

they were denied retroactive assisted living waiver benefits because Ohio provides only

prospective coverage from the date an individual is officially “enrolled” in the assisted living

waiver program.

Plaintiffs allege that defendants, state officials with jurisdiction over Ohio’s Medicaid

assisted living waiver program, violated federal law by denying them retroactive assisted living

waiver benefits for up to three months prior to their applications. Plaintiffs bring this action

under 42 U.S.C. § 1983 on behalf of themselves and a putative class they seek to represent

challenging Ohio’s administration of the assisted living waiver program as violative of the

1 The term “plaintiffs” as used herein refers to Geraldine A. Saunders and the late Betty Hilleger; however, the lawsuit was filed by Kathryn A. Price, in her capacity as next friend and attorney-in-fact for Geraldine Saunders, and by Marilyn A. Wenman, in her capacity as Executor for the Estate of Betty Hilleger. See Doc. 56, First Am. Complaint.

Medicaid Act, 42 U.S.C. § 1396a et seq., and the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
This matter is before the Court on the parties’ cross-motions for summary judgment (Docs. 74, 89), their respective memoranda in opposition (Docs. 102, 104), their reply memoranda (Docs. 112, 113), and their written responses to the Court’s pre-oral argument questions (Docs. 119, 120).2 This matter is also before the Court on plaintiffs’ motion for class certification and appointment of class counsel (Doc. 77), defendants’ memorandum in opposition (Doc. 105), and plaintiffs’ reply memorandum (Doc. 111). Where the resolution of a summary judgment motion will result in a more efficient resolution of the class certification motion, the Court within its discretion may resolve the summary judgment motion prior to assessing the merits of class certification. Lee v. Javitch, Block & Rathbone, LLP, 522 F. Supp.2d 945, 947 (S.D. Ohio 2007) (citing Thompson v. County of Medina, Ohio, 29 F.3d 238, 240-41 (6th Cir. 1994)). Because the capacity of the named plaintiffs to represent the class depends on whether their own claims are barred, as argued by defendants on summary judgment, the Court chooses to resolve the parties’ cross-motions for summary judgment prior to addressing plaintiffs’ class certification motion. II. BACKGROUND
Medicaid is a joint federal-state program that provides health care benefits to low-income disabled, elderly, and other qualifying individuals. 42 U.S.C. § 1396 et seq. The Medicaid program provides federal financial assistance to States that choose to participate in the program. State plans for medical assistance must comply with the detailed requirements of 42 U.S.C. §
2 The Court heard oral argument on the pending motions on April 28, 2015.
2

1396a(a) to be approved for federal funding. Ohio Dept. of Mental Retardation and Dev. Disabilities v. U.S. Dept. of Health and Human Servs., 761 F.2d 1187, 1188 (6th Cir. 1985).
Participation by a State in the Medicaid program is optional; however, once a State chooses to participate it must adopt a plan that conforms to the requirements set forth in the Medicaid Act and its implementing regulations. Harris v. McRae, 448 U.S. 297, 301 (1980). Among these requirements is that the State provide certain mandatory medical services. Id. See also Parents League for Effective Autism Servs. v. Jones-Kelley, 565 F. Supp.2d 905, 911 (S.D. Ohio 2008) (citing 42 U.S.C. § 1396d(a)(1)-(28) (setting forth the various required services)). A State may also elect to provide optional Medicaid services to qualified individuals, which once offered become part of the State plan and must comport with federal law. Bryson v. Shumway, 308 F.3d 79, 89 (1st Cir. 2002) (“Once the [optional] waiver plan is created and approved, it becomes part of the state plan and therefore subject to federal law.”); Doe 1-13 By and Through Doe, Sr. 1-13 v. Chiles, 136 F.3d 709, 721 (11th Cir. 1998) (“[W]hen a state elects to provide an optional service, that service becomes part of the state Medicaid plan and is subject to the requirements of federal law.”); Weaver v. Reagen, 886 F.2d 194, 197 (8th Cir. 1989) (“Once a state chooses to offer such optional services it is bound to act in compliance with the [Medicaid] Act and the applicable regulations in the implementation of those services.”). Accord Eder v. Beal, 609 F.2d 695, 701-02 (3d Cir. 1979); Dozier v. Haveman, No. 14-12455, 2014 WL 5480815, at *6 (E.D. Mich. Oct. 29, 2014).
Assisted living waiver services are not mandatorily-covered services under federal Medicaid law. Rather, the Medicaid Act permits States to apply for a Medicaid Home and Community-Based Services (HCBS) waiver (commonly termed an “HCBS waiver”) to provide assisted living waiver services to individuals as an alternative to more expensive institutional or
3

nursing home care. 42 U.S.C. § 1396n(c). In an HCBS waiver program, the United States
Department of Health and Human Services “waives” certain statutory requirements of the
Medicaid Act. Id. “Section 1915(d) of the Act permits States to offer, under a waiver of
statutory requirements, home and community-based services not otherwise available under
Medicaid to individuals age 65 or older, in exchange for accepting an aggregate limit on the
amount of expenditures for which they claim FFP [Federal Financial Participation] for certain
services furnished to these individuals.” 42 C.F.R. § 441.350. These home and community-
based services may include: (1) case management services; (2) homemaker services; (3) home
health aide services; (4) personal care services; (5) adult day health services; (6) habilitation
services; (7) respite care services; and (8) other medical and social services requested by the Medicaid agency and approved by the Centers for Medicare and Medicaid Services (CMS),3
which will contribute to the health and well-being of individuals and their ability to reside in a
community-based care setting. See 42 U.S.C. § 1396n(c)(4)(B). The Medicaid assisted living
waiver pays for supportive services, but not room and board in a residential care facility. 42
U.S.C. § 1396n(c)(1). Assisted living waiver services are provided pursuant to a written plan of care4 to individuals who, but for such services, would require the level of care provided in a
hospital or nursing facility. Id.
The Ohio Department of Medicaid (ODM) administers the Medicaid program for the
State of Ohio and offers assisted living waiver services through an HCBS waiver. Ohio’s
3 CMS is the federal agency that administers the Medicaid program. See Rosen v. Goetz, 410 F.3d 919, 927 (6th Cir. 2005). “The Secretary of the Department of Health and Human Services (‘Secretary’) administers the Act . . ., but has delegated to the regional administrator for the Centers for Medicare and Medicaid Services (‘CMS’) the responsibility of reviewing in the first instance state plans for compliance with the provisions of the Act, see 42 C.F.R. § 430.15(b). The Secretary also requires the submission of state plan amendments (‘SPAs’) for certain changes to a state plan, which CMS again reviews in the first instance for compliance with the Act. See 42 C.F.R. § 430.12(c).” Arc of California v. Douglas, 757 F.3d 975, 980 (9th Cir. 2014) (internal citation omitted). 4 The terms “plan of care” and “service plan” are used interchangeably throughout this Order.
4

assisted living waiver program provides supportive services – such as assistance with bathing,
mobility, and dressing – to Medicaid-eligible individuals whose needs qualify them for
intermediate or skilled level of care coverage of nursing home or institutional care services.5
The Ohio Department of Aging (ODA)6 conducts the daily operations of the waiver program.
ODA’s designee, PASSPORT Administrative Agencies, determines the non-financial eligibility
requirements of the waiver program (i.e., level of care) and develops the individual’s plan of
care, while the county departments of job and family services determine the financial eligibility
requirements of the waiver program. Ohio Admin. Code 173-38-03. To be eligible for the
assisted living waiver program, an individual must meet, inter alia, the following requirements:
(1) have a need for intermediate or skilled level of care;
(2) reside in a residential care facility certified by ODA; and
(3) be eligible for Medicaid as determined by the county department of job and family services.
Ohio Admin. Code 5160-33-03.7 Ohio also requires that individuals have a “plan of care” or
“service plan” 8 that specifies the types of services the individual will receive under the assisted
5 Ohio defines “assisted living HCBS waiver” as “the medicaid program that serves individuals residing in licensed residential care facilities that are certified by ODA [Ohio Department of Aging] and enrolled on the waiver who would otherwise receive services in a nursing facility if the waiver program were not available.” Ohio Admin. Code 5160-33-02(D). “Assisted living service” is defined as “a service that promotes aging in place by supporting a consumer’s independence, choice, and privacy through the provision of one or more components of the service which are a personal care service, a supportive service, an on-duty response service, coordination of meals, social and recreational programming, a non-medical transportation service, and a nursing service.” Ohio Admin. Code 173-39-02.16(A). 6 The named defendants, John McCarthy, the Director of ODM, and Bonnie Kantor-Berman, the Director of ODA, are sued in their official capacities. (Doc. 56). The term “defendants” and the “State of Ohio” are used interchangeably herein. 7 The other eligibility requirements set forth in Ohio Admin. Code 5160-33-03 do not impact the effective date of waiver services at issue in this case. They include the following requirements:
•If the individual requires skilled nursing care beyond supervision of special diets, application of dressings, or administration of medication, it must be provided in accordance with rule 3701-1759.1 of the Administrative Code.
5

living waiver program. See Ohio Admin. Code 5160-33-02(V); Ohio Admin. Code 5160-33-
06(C); Ohio Admin. Code 173-39-01(B)(22); Ohio Admin. Code 173-39-02.16.
Ohio regulations permit only prospective coverage for assisted living waiver services. If
an individual is determined eligible for Medicaid assisted living waiver services, Ohio
regulations state that the Medicaid waiver program “enrollment date,” i.e., the effective date of
coverage, is determined by ODA’s designee and shall be the latest date that all of the following
conditions are met: (i) The individual’s basic medicaid effective date;9
(ii) The date that the individual meets the level of care requirements to participate in the medicaid waiver program;
(iii) The date that the individual meets all the medicaid waiver program requirements listed in rule 5160-33-03 of the Administrative Code;
•The cost of the twelve-month service plan does not exceed the cost limit in effect for the program that is based on the maximum per-diem rate for assisted living services plus the maximum amount authorized for community transition services. •The individual must have the ability to make room and board payments calculated at the current supplemental security income (SSI) federal benefit level minus fifty dollars. •The individual is age twenty-one or older at the time of enrollment. •The assisted living HCBS waiver has not reached the centers for medicare and medicaid services (CMS) authorized limit of participants for the current year. •The individual’s health related needs, as determined by the PASSPORT administrative agency, can be safely met in a RCF [residential care facility] as described in paragraph (B)(3) of this rule. Ohio Admin. Code 5160-33-03(B). 8 “Service Plan” is defined as “a written, person centered plan between the consumer, the consumer’s case manager at the PAA [PASSPORT Administrative Agency] and, as applicable, the consumer’s caregiver(s). The service plan specifies the services that are provided to the consumer, regardless of funding source, to address the consumer’s individual care needs as identified in the consumer’s assessment.” Ohio Admin. Code 5160-33-02(V). 9 Ohio defines “basic medicaid effective date” as “the date that an individual is eligible to receive services under the medicaid state plan. . . .” Ohio Admin. Code 173-38-03(E)(1).
6

(iv) The date that the individual has a service plan that is approved by ODA’s designee and that includes at least one medicaid waiver service; and, (v) The date that the individual resides in an ODA-certified residential care facility in an ODA-approved living unit. Ohio Admin. Code 173-38-03(C)(1)(b). The “medicaid waiver program enrollment date for the medicaid-funded component of the assisted living program may differ from the basic medicaid effective date.” Ohio Admin. Code 173-38-03(C)(1)(d). Ohio will not pay for supportive services rendered before ODA’s designee determines the Medicaid waiver enrollment date. Ohio Admin. Code 173-38-03(C)(1)(c). Ohio Admin. Code 173-38-03 was amended effective March 1, 2014, to change the effective date of enrollment to the latest date the individual met all the eligibility requirements for the assisted living waiver. Previously, at the time plaintiffs filed this lawsuit, the regulations based the enrollment date on the latter of: (1) the date that the ODA’s designee determined the non-financial criteria were met; (2) the date that the county department of jobs and family services determined the financial criteria were met for basic Medicaid; or (3) the date the applicant became a resident of a qualified residential care facility. See 2014 Oh. Reg. Text 344942 (Feb. 18, 2014) (former Ohio Admin. Code 173-38-03). In other words, the effective date of coverage could not precede the actual date the determination of eligibility was physically processed (i.e., entered into the computer system) by either the ODA’s designee or the county department of jobs and family services. Although the March 2014 amendment results in an earlier effective date for assisted living waiver benefits, coverage for assisted living waiver benefits remains prospective only. Coverage cannot begin before the date the last of the five requirements set forth in Ohio Admin. Code 173-38-03(C)(1)(b) is met, such as the date on which the ODA’s designee approves the service plan.
7

III. RETROACTIVE COVERAGE UNDER FEDERAL MEDICAID LAW
Plaintiffs allege that defendants improperly denied them retroactive Medicaid assisted
living waiver benefits for up to three months prior to their applications in violation of federal
law. Plaintiffs allege that defendants have administered the Ohio Medicaid program to provide
prospective assisted living waiver services only from the date of “enrollment” in violation of the
Medicaid Act, 42 U.S.C. § 1396a et seq.
The Medicaid Act requires that a state plan for medical assistance:
provide that in the case of any individual who has been determined to be eligible for medical assistance under the plan, such assistance will be made available to him for care and services included under the plan and furnished in or after the third month before the month in which he made application (or application was made on his behalf in the case of a deceased individual) for such assistance if such individual was (or upon application would have been) eligible for such assistance at the time such care and services were furnished.
42 U.S.C. § 1396a(a)(34) (emphasis added). The Act defines “medical assistance” as “payment
of part or all of the cost of the [covered] care and services . . . (if provided in or after the third
month before the month in which the recipient makes application for assistance . . .) for
individuals.” 42 U.S.C. § 1396d(a). States are required “to make medical assistance available
for covered services provided to Medicaid recipients within the three months prior to the month
in which the recipient applied for Medicaid (known as the retroactive-coverage period), provided
that the recipient would have been eligible for Medicaid at the time the services were rendered.”
Schott v. Olszewski, 401 F.3d 682, 686 (6th Cir. 2005) (citing 42 U.S.C. § 1396a(a)(34)). The
federal regulation governing retroactive coverage provides:
The agency must make eligibility for Medicaid effective no later than the third month before the month of application if the individual –
(1) Received Medicaid services, at any time during that period, of a type covered under the plan; and
8

(2) Would have been eligible for Medicaid at the time he received the services if he had applied (or someone had applied for him), regardless of whether the individual is alive when application for Medicaid is made. 42 C.F.R. § 435.915(a). IV. THE CLAIMS OF THE NAMED PLAINTIFFS A. Betty Hilleger In 2008, when plaintiff Betty Hilleger was no longer able to live independently in her own home, she began living in an Ohio assisted living facility. She suffered from dementia, congestive heart failure, diabetes, and arthritis; she needed help bathing, dressing and walking; and she was susceptible to falling. She also needed assistance with both remembering to take and actually taking her medication. Mrs. Hilleger paid approximately $4,300 per month (the private pay rate) for room and board and assisted living services. In 2012, after living for four years in the assisted living facility, Mrs. Hilleger had spent her life savings below the Ohio Medicaid asset limit of $1,500. See Ohio Admin. Code § 5160:1-3-05.1(B)(10)(a) ($1,500 limit for persons without spouses). On October 19, 2012, Mrs. Hilleger filed an application for the Ohio assisted living waiver program. Without the assisted living waiver, Mrs. Hilleger would have had to move into a nursing facility, but with the assisted living waiver she could remain in her familiar and less institutional assisted living setting. On November 6, 2012, defendant ODA’s waiver designee – the Council on Aging of Southwestern Ohio – assessed Mrs. Hilleger’s need for care, developed her service plan, and determined that Mrs. Hilleger met the level of care requirements (i.e., would require the level of care provided in a hospital or nursing facility). Mrs. Hilleger’s financial eligibility remained to be determined. On January 3, 2013, defendant ODM’s financial designee – the Hamilton County Department of Job and Family
9

Services – determined that Mrs. Hilleger met the financial eligibility standards and was eligible for basic Medicaid as of October 1, 2012.10 However, it deferred to ODA’s waiver designee to
determine the start date of assisted living waiver coverage. ODA’s designee issued a notice that
initiated assisted living waiver coverage effective January 1, 2013, the first day of the month that
the county department of job and family services determined Mrs. Hilleger’s financial eligibility
under the version of Ohio Admin. Code 173-38-03 in effect at the time. Mrs. Hilleger’s monthly
financial responsibility was set at $660 for room and board and $1,725 for services, with the
Ohio Medicaid program to cover the remaining service expenses.
Although Mrs. Hilleger met Ohio’s Medicaid financial eligibility standards effective
October 1, 2012, her assisted living waiver coverage did not begin until January 1, 2013, based
on the Ohio Medicaid rules in effect at the time. While Mrs. Hilleger received retroactive basic Medicaid back to October 1 – a total of 92 days11 – she did not receive 92 days of assisted living
waiver services. As Mrs. Hilleger’s assets had been spent down below $1,500, she was left with
assisted living bills that she could not afford. To prevent the possibility of Mrs. Hilleger’s eviction for nonpayment,12 Mrs. Hilleger’s daughters paid the assisted living facility $4,085.22 from their own funds.13
10 A state agency may make Medicaid eligibility effective on the first day of a month if the individual was eligible at any time during that month. 42 C.F.R. § 435.915(b). Ohio has adopted the “first day of the month” rule and has opted to begin Medicaid coverage the first day of the month if that individual meets all eligibility requirements. Ohio Admin. Code 5160:1-1-51(K)(1)(b). Thus, although Mrs. Hilleger applied for Medicaid on October 19, 2012, she was determined to be eligible for basic Medicaid effective October 1, 2012. (Doc. 89, Ex. 10). 11 The 92 days cover October (31 days), November (30 days), and December (31 days). 12 See Ohio Rev. Code § 3721.13(A)(30) (right of residential care facility to evict for nonpayment). 13 Under the newly revised regulations implemented in March 2014, the gap in assisted living waiver coverage would have been reduced to 37 days, from October 1, 2012 through November 6, 2012 – the time between the date on which Mrs. Hilleger met the financial eligibility requirements and the date on which her service plan was approved.
10

Mrs. Hilleger and her authorized representatives were notified of Mrs. Hilleger’s date of enrollment in the Medicaid assisted living waiver program, her basic Medicaid effective date, and her patient liability amount. The notice also informed Mrs. Hilleger and her authorized representatives that she could request a state hearing to challenge the determinations. Neither Mrs. Hilleger nor her authorized representatives requested a state hearing challenging Mrs. Hilleger’s date of enrollment in the assisted living waiver program.
Mrs. Hilleger died on September 19, 2013. On October 28, 2013, Kathryn Price was appointed the executor of Mrs. Hilleger’s estate.
B. Geraldine Saunders On June 25, 2012, named plaintiff Geraldine Saunders moved from a nursing home to an ODA certified assisted living facility in Ironton, Ohio. Mrs. Saunders could no longer live safely on her own: she had stress fractures and she suffered from increasing dementia and incontinence. She required a walker or wheelchair for mobility. That same date, Mrs. Saunders applied for Ohio Medicaid assisted living waiver benefits; ODA’s designee completed Mrs. Saunders’ level of care assessment; and ODA’s designee developed her initial plan of care at the nursing home where she was then residing. Because Mrs. Saunders had moved to an ODA certified assisted living facility, ODA’s designee contacted Mrs. Saunders’ doctor and received verbal approval for her level of care on June 26, 2012. On July 18, 2012, the county department of job and family services determined that Mrs. Saunders met the financial criteria for basic Medicaid. Defendants represent that her effective date for basic Medicaid was June 1, 2012.14 (Doc. 120 at 4). The effective date for the assisted
14 Although a state hearing decision indicates that Mrs. Saunders was resource ineligible for Medicaid in June 2012, which would make her eligibility date for basic Medicaid July 1, 2012, defendants have represented to the Court that their records show Mrs. Saunders was eligible for basic Medicaid on June 1, 2012. (Doc. 120 at 4). It is undisputed that Mrs. Saunders was approved for the assisted living waiver program effective July 18, 2012.
11

living waiver program, however, was July 18, 2012 – the date that the county department of job and family services determined her basic Medicaid eligibility in accordance with then-existing Ohio Medicaid rules.15 As a result, Mrs. Saunders owed the assisted living facility $2,292 for the uncovered period from July 1 to July 18, 2012. (Doc. 80, Price Decl., ¶¶ 3-4).
Mrs. Saunders and her authorized representatives were notified of Mrs. Saunders’ date of enrollment in the assisted living waiver program.16 The notice also informed Mrs. Saunders and her authorized representatives that she could request a state hearing to challenge this determination. Mrs. Saunders and her authorized representatives did not request a state hearing regarding the effective date of her eligibility for assisted living waiver benefits. However, they subsequently requested a hearing seeking reimbursement for patient liability in the amount of $2,292, which Mrs. Saunders’ daughter paid to the assisted living facility to prevent the facility from evicting Mrs. Saunders for nonpayment. Mrs. Saunders’ daughter paid the $2,292 herself in order to ensure Mrs. Saunders’ continued residence in the assisted living facility and to prevent her from returning to the nursing home. Id.
On December 11, 2012, Mrs. Saunders was transferred from the assisted living facility to a nursing home. On February 28, 2013, Mrs. Saunders was disenrolled from the assisted living waiver program because she had been in the nursing home since December 11, 2012. V. DEFENDANTS’ ASSERTED DEFENSES
Defendants raise several defenses that they contend bar plaintiffs’ recovery in this case. Defendants allege that the Eleventh Amendment bars plaintiffs’ claims seeking retroactive relief.
15 Under the newly revised regulations implemented in March 2014, Mrs. Saunders enrollment date could have been effective on June 25, 2012, the date her service plan was approved, if all other eligibility requirements were met. 16 The notice is somewhat confusing and states that assisted living waiver benefits “start 08/02/2012. You will get benefits for 07/2012, and each month after that.” (Doc. 89, Ex. 10, Plaintiffs’ Admns. Ex. B).
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They also allege that neither plaintiff has standing to obtain prospective injunctive or declaratory relief. Defendants further contend that plaintiff Hilleger’s § 1983 claims do not survive her death and plaintiff Saunders’ § 1983 claims are moot. As these issues are potentially dispositive, the Court will address them before reaching the merits of plaintiffs’ claims.
A. Eleventh Amendment Generally, the Eleventh Amendment to the United States Constitution bars suit against a State or its agencies or departments in federal court regardless of the nature of the relief sought. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 58 (1996); Pennhurst State School v. Halderman, 465 U.S. 89, 100 (1984); Alabama v. Pugh, 438 U.S. 781, 782 (1978); Edelman v. Jordan, 415 U.S. 651, 663 (1974). An exception to the Eleventh Amendment bar prohibiting suit in federal court against a State applies where the plaintiff seeks prospective injunctive relief to compel state officials to comply with federal law. See Ex parte Young, 209 U.S. 123 (1908). See also S & M Brands, Inc. v. Cooper, 527 F.3d 500, 507 (6th Cir. 2008). Under Ex parte Young, “a federal court, consistent with the Eleventh Amendment, may enjoin state officials to conform their future conduct to the requirements of federal law.” Quern v. Jordan, 440 U.S. 332, 337 (1979). “A court may enter a prospective injunction that costs the state money, but only if the monetary impact is ancillary, i.e., not the primary purpose of the suit.” Barton v. Summers, 293 F.3d 944, 950 (6th Cir. 2002) (citing Edelman, 415 U.S. at 668). See also Quern, 440 U.S. at 349 (order requiring notice relief that was ancillary to prospective injunction enjoining ongoing violation of federal law did not violate the Eleventh Amendment); Milliken v. Bradley, 433 U.S. 267, 289-90 (1977) (injunction requiring state to expend funds to provide education programs to remedy racial discrimination was ancillary to non-compensatory goal not barred by the Eleventh Amendment). However, an injunction ordering retroactive benefits for
13

past violations of federal law is prohibited by the Eleventh Amendment, Edelman, 415 U.S. at 666-69, as is “notice relief” where there is no ongoing violation of federal law to be enjoined. Green v. Mansour, 474 U.S. 64, 71, 74 (1985). “Notice relief” is not an independent form of relief and must be “ancillary to the grant of some other appropriate relief that can be ‘noticed,’” such as an injunction compelling a State to conform its practices to federal law. Green, 474 U.S. at 71. Thus, where a change in federal law during the course of the litigation moots the plaintiffs’ claim for injunctive relief, there is no continuing violation of federal law to enjoin and notice relief is impermissible. Id.
In this case, defendants argue that all of plaintiffs’ claims are barred by the Eleventh Amendment because plaintiffs seek retroactive relief. Defendants assert that plaintiffs are asking the Court to backdate their enrollment in the assisted living waiver program or to require that defendants provide them with hearings to challenge their past enrollment dates, which are forms of relief prohibited under the Eleventh Amendment. (Doc. 89 at 11, citing First Am. Complaint at ¶¶ D-F). Defendants also argue that to the extent plaintiffs contend the notice relief they seek is ancillary to a prospective injunction, they are not entitled to ancillary relief because there is no ongoing violation of law to justify the requisite injunctive relief. (Id. at 12).
Plaintiffs dispute defendants’ characterization of the relief they seek. Plaintiffs deny they are seeking an award of damages; rather, they assert they are seeking prospective relief that includes: (1) declarations that defendants are in violation of the Medicaid Act and the Due Process Clause; (2) a prohibition on future denials of Medicaid assisted living waiver coverage to otherwise eligible plaintiffs for up to three months prior to the month of application; and (3) the provision of notice and an opportunity for a hearing for potentially eligible class members.
14

(Doc. 102 at 16). Plaintiffs assert each form of relief they seek is prospective in nature because
there is an ongoing violation of federal law. (Id.).
The declaratory and injunctive relief plaintiffs seek is not barred by the Eleventh
Amendment. Plaintiffs request (1) a declaration that defendants are violating federal law, and (2)
the entry of a permanent injunction requiring defendants to conform their eligibility
determinations for assisted living waiver benefits to the federal requirement that Medicaid
benefits be provided “in or after the third month before the month in which [the applicant] made application” if all other requirements are met. 42 U.S.C. § 1396a(a)(34).17 If plaintiffs succeed
on the merits of their claims, they would be entitled to the declaration and injunction they seek as
both are prospective forms of relief that are not barred by the Eleventh Amendment. Quern, 440
U.S. at 337.
In addition to declaratory and injunctive relief, plaintiffs seek notice relief. In their reply
memorandum, plaintiffs seek to clarify the notice relief sought in paragraph F of the First Amended Complaint18 to be consistent with their position in their opposition memorandum to
17 Plaintiffs’ First Amended Complaint seeks a declaratory judgment that: i. Defendants’ failure to grant retroactive eligibility for the Medicaid AL [assisted living] Waiver violates 42 U.S.C. § 1396a(a)(3), (a)(8), and (a)(34), and implementing regulations 42 C.F.R. §§ 431.205, 431.206, 435.915, and 435.930(a)-(b); ii. Defendants’ failure to notify applicants that they are being denied coverage for months in which they met eligibility requirements, violates the due process clause of the Fourteenth Amendment of the United States Constitution. . . .
(Doc. 56 at 14-15). The First Amended Complaint also seeks “a permanent injunction enjoining Defendants from denying Plaintiffs eligibility for the Medicaid AL Waiver for months in which they are determined to meet eligibility standards, for as early as three months prior to the month in which an application is made.” (Id. at 15). 18 The portions of the First Amended Complaint plaintiffs seek to amend request that the Court:
E. Enter an order requiring Defendants to identify and provide written notice to Plaintiffs and all class members that their Medicaid AL Waiver coverage will begin in the month in which they meet all eligibility criteria, up to three months prior to the month of application;
15

defendants’ motion for summary judgment. (Doc. 102 at 16-17). They propose the following
amended notice relief:
Enter an order requiring Defendants to identify and provide written notice to Plaintiffs and all class members that their Medicaid AL Waiver coverage will begin on the first day of the month in which they meet all eligibility criteria, up to three months prior to the month of application, with a notice advising them of the state administrative procedure, compliant with due process requirements, available if they desire to have Defendants determine whether or not they may be eligible for additional days of Medicaid AL Waiver coverage.
(Doc. 112 at 11). At the oral argument in this case, plaintiffs requested that their complaint be
amended to clarify the notice relief they are seeking. Defendants oppose an amendment of the
complaint and argue that plaintiffs’ request, made in reply to a motion for summary judgment, is
improper.
In deciding whether to grant a motion to amend pursuant to Fed. R. Civ. P. 15(a), a court
should consider factors including: undue delay in filing, lack of notice to the opposing party, bad
faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue
prejudice to the opposing party, and futility of amendment. Brumbalough v. Camelot Care Ctrs.,
Inc., 427 F.3d 996, 1001 (6th Cir. 2005). All of these factors weigh in favor of permitting the
clarification to the notice relief that plaintiffs seek. The notice relief, as clarified, is consistent
with the declaratory and injunctive relief plaintiffs seek. It essentially combines the relief sought
in paragraphs E and F of the amended complaint and eliminates the request that defendants
F. Require Defendants to identify all class members whose coverage did not begin in the first month in which all eligibility requirements were met (up to three months prior to the month of application), redetermine their eligibility for the Medicaid AL Waiver with coverage beginning on the first day of the month in which all eligibility criteria were met, and provide written notice and the opportunity for a fair hearing of the redetermination to all such identified class members, with the notice explaining the reasoning for setting the month in which coverage starts. . . . (Doc. 56 at 15).
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affirmatively redetermine eligibility for assisted living waiver benefits.19 Plaintiffs have
consistently sought a court order compelling the State of Ohio to comply with federal law and
defendants have been on notice of this. The Court finds no undue delay in filing or bad faith on
the part of plaintiffs. Defendants have not demonstrated they will be unduly prejudiced by the
amendment. Plaintiffs are not asserting a new claim that would require the parties to expend
additional resources to conduct discovery. Nor does the amended notice relief change the nature
of this action. Finally, for the reasons discussed below, amendment of the requested notice relief
would not be futile.
The revised notice relief plaintiffs seek would advise individuals of the administrative
process for determining whether they may be eligible for additional assisted living waiver
benefits for up to three months prior to the month of application. The clarified notice relief
would not be barred by the Eleventh Amendment as this notice relief is similar to the notice
ultimately approved by the Supreme Court in Quern that advised class members “there are state
administrative procedures available by which they may receive a determination of whether they
are entitled to past welfare benefits.” Quern, 440 U.S. at 334. Such notice relief would be
ancillary to the prospective injunctive relief ordered by the Court and would do “nothing other
than inform a diverse and partially victorious class concerning the extent of the judgment in its
favor . . . and that the federal courts could do no more for them,” without any suggestion that the
notice would bind state officials in any way. Green, 474 U.S. at 71 (citing Quern, 440 U.S. at
349). As amended, there is nothing in the notice relief sought by plaintiffs that poses an
19 An order that would require defendants to “redetermine” plaintiffs’ eligibility for Medicaid assisted living waiver benefits (Doc. 56 at 15, First Amended Complaint, ¶ F) is the type of relief barred by the Eleventh Amendment. Such relief would be similar to the District Court’s notice in Quern informing individual class members that they were wrongfully denied benefits in a particular amount and providing a returnable form for filing claims with the appropriate state agency. This form of relief would “effectively result in a federal adjudication of state liability for past violations of federal law” in violation of the Eleventh Amendment. Green, 474 U.S. at 70 (citing Quern, 440 U.S. 332).
17

Eleventh Amendment bar to the adjudication of plaintiffs’ claims in this matter.20 Therefore, the
Court grants plaintiffs’ request to amend the complaint to specify the revised notice relief. The
Court will not dismiss plaintiffs’ claims as barred by the Eleventh Amendment.
B. Standing
Standing is a “threshold question in every federal case, determining the power of the
court to entertain the suit.” Senter v. General Motors Corp., 532 F.2d 511, 516 (6th Cir. 1976)
(quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). “In its constitutional dimension, standing
imports justiciability . . . [where] the plaintiff has made out a ‘case or controversy’ between
himself and the defendant within the meaning of Article III.” Id. at 516-17; see also United
States v. Van, 931 F.2d. 384 (6th Cir. 1991). A “case or controversy” is a personal stake in the
outcome. City of Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983). The Supreme Court has set
forth the following test for standing:
First, the plaintiff must have suffered an “injury in fact” – an invasion of a legally protected interest which is (a) concrete and particularized . . . and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical’.” . . . Second, there must be a causal connection between the injury and the conduct complained of – the injury has to be “fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court.” . . . Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (citations omitted). “Standing to
bring suit must be determined at the time the complaint is filed.” Smith v. Jefferson County Bd.
of Sch. Comm’rs, 641 F.3d 197, 206 (6th Cir. 2011) (citing Lynch v. Leis, 382 F.3d 642, 647 (6th
Cir. 2004)).21
20 Defendants argue that notice relief is not available because there is no “ongoing violation.” This argument goes to the merits of plaintiffs’ claims and is not properly resolved in connection with the Eleventh Amendment defense. 21 Defendants contend that plaintiffs may not rely on evidence related to putative class members to establish standing in this case or in resolving the motions for summary judgment. (Doc. 104 at 2-3). The Court has considered the claims and circumstances of only the named plaintiffs in these regards.
18

There is no question that both named plaintiffs meet the first and second prongs of Lujan for standing. Both suffered an injury in fact that was causally related to the actions of defendants. The defendants’ determinations of eligibility for the assisted living waiver program granted prospective-only benefits. Under Ohio’s rules, neither plaintiff was potentially eligible for retroactive coverage for up to three months prior to their applications.
Nevertheless, defendants contend that neither plaintiff has standing to obtain prospective injunctive or declaratory relief because neither Mrs. Hilleger nor Mrs. Saunders is currently receiving assisted living waiver benefits. Defendants assert that the named plaintiffs cannot establish the redressability prong of Lujan’s standing test because Mrs. Hilleger is deceased and Mrs. Saunders was no longer living in an assisted living waiver facility at the time the complaint was filed.22 Defendants argue that the named plaintiffs are unable to demonstrate that their claimed injuries will be redressed by a favorable decision. (Doc. 89 at 12, citing Lujan, 540 U.S. at 560-61). Defendants raise five arguments in support of their standing defense.
First, defendants contend that the retroactive relief each plaintiff seeks is barred by the Eleventh Amendment. (Doc. 89 at 13). For the reasons stated above, the Eleventh Amendment does not bar the prospective injunctive relief sought by plaintiffs.
Second, defendants argue that plaintiffs lack standing to obtain prospective injunctive or declaratory relief because there is no “ongoing” violation that can be redressed by the relief plaintiffs seek. (Doc. 89 at 12, citing Green, 474 U.S. at 67-68). In Green, the Supreme Court held that the Eleventh Amendment prohibited either “notice relief” or a declaration that state officials had violated federal law in the past where the federal statute in question had been
22 Mrs. Saunders was not disenrolled from the assisted living waiver program until after the complaint was filed. (Doc. 89, Ex. 11).
19

amended during the pendency of the case and there was no ongoing violation of federal law to enjoin. 474 U.S. at 73-74. Unlike Green, there has been no statutory or regulatory amendment that eliminates the ongoing violation of federal law alleged by plaintiffs. Rather, plaintiffs allege that by prohibiting retroactive assisted living waiver benefits, defendants continue to violate 42 U.S.C. § 1396a(a)(34)’s mandate to provide assistance to eligible individuals “in or after the third month before the month in which [they] made application.” Further, defendants’ argument that this case does not involve an ongoing violation that can be redressed by the relief plaintiffs seek depends for its success on a ruling in defendants’ favor on the merits of plaintiffs’ statutory claim, i.e., a finding that defendants are not violating federal law.23 If the Court finds that defendants are violating federal law, the notice and declaratory relief plaintiffs seek will redress this violation.
Third, defendants contend that neither plaintiff has standing to assert the claims in this case because neither has established she actually met the assisted living waiver requirements up to three months prior to her date of application. (Doc. 113 at 13). The Court is not persuaded by this argument because it hinges on the validity of defendants’ eligibility requirements for assisted living waiver benefits, which are at issue in this case. According to defendants, no Medicaid applicant in Ohio is ever eligible for assisted living waiver benefits prior to the date of application under the State regulatory scheme because the effective date of “enrollment” in the assisted living waiver program depends on post-application events, such as the development of a plan of care. Plaintiffs argue that defendants’ position is legally incorrect because Ohio’s assisted living waiver requirements violate the retroactivity requirement of 42 U.S.C. § 1396a(a)(34). Plaintiffs do not lack standing to present their claims simply because they
23 At oral argument, defendants conceded that to succeed with this argument, the Court must rule against plaintiffs on their statutory claim.
20

allegedly failed to meet the same assisted living waiver requirements that they challenge in this lawsuit as violative of federal law.
For example, Mrs. Hilleger applied for assisted living waiver benefits on October 19, 2012. On November 6, 2012, the Council on Aging developed her service plan and determined that Mrs. Hilleger met the level of care requirements. Yet, her assisted living waiver coverage did not begin until January 3, 2013, when her financial eligibility was finally determined by the county department of job and family services. Plaintiffs contend that Mrs. Hilleger was entitled to assisted living waiver benefits as of October 1, 2012, when she met the financial eligibility standards for Medicaid and all of the other requirements for assisted living waiver benefits. If plaintiffs are successful on their statutory claim, then Mrs. Hilleger would be eligible for additional assisted living waiver services “furnished in or after the third month before the month in which [s]he made application.” § 1396a(a)(34).
Fourth, defendants contend Mrs. Hilleger lacks standing because her § 1983 claim does not survive her death and must be dismissed.
In determining whether Mrs. Hilleger’s § 1983 claim survives her death, the Court must look to Ohio state law, as long as such law is not inconsistent with federal law or the Constitution. Robertson v. Wegmann, 436 U.S. 584, 588-90 (1978); Haggard v. Stevens, 683 F.3d 714, 717-18 (6th Cir. 2012). Ohio Rev. Code § 2305.21 governs the survival of actions under Ohio law and provides:
In addition to the causes of action which survive at common law, causes of action for mesne profits, or injuries to the person or property, or for deceit or fraud, also shall survive; and such actions may be brought notwithstanding the death of the person entitled or liable thereto. “Injuries to the person” means “physical injuries” under Ohio Rev. Code § 2305.21. Witcher v. Fairlawn, 680 N.E.2d 713, 715 (Ohio Ct. App. 1996); Oakwood v. Makar, 463 N.E.2d 61, 64
21

(Ohio Ct. App. 1983). The term “personal property” under the statute “is not limited to tangible
goods and chattels. Intangible choses in action, such as a contract right and the right to bring a
cause of action in a court of law, are also considered personal property.” Loveman v. Hamilton,
420 N.E.2d 1007, 1009 (Ohio 1981) (citations omitted). Thus, for example, the Ohio Supreme
Court has held that a cause of action for legal malpractice involves a property interest that
survives the death of the former client. Id. at 1008. Injury to property is not “confined to
physical damage or destruction of tangible property, but the word is broad enough to include the
lessening in value of an estate by a depletion in value thereof resulting from tort.” Adams v.
Malik, 155 N.E.2d 237, 239 (Ohio Ct. App. 1957).
Medicaid is an entitlement program under Title XIX of the Social Security Act, 42 U.S.C.
§ 1396 et seq., and plaintiffs have a property interest in state-provided benefits for which they
hope to qualify. Hamby v. Neel, 368 F.3d 549, 559 (6th Cir. 2004); Ability Center of Greater
Toledo v. Lumpkin, 808 F. Supp.2d 1003, 1026 (N.D. Ohio 2011). See also Goldberg v. Kelly,
397 U.S. 254 (1970). Because Ohio recognizes that intangible property interests survive the
death of the decedent, Mrs. Hilleger’s property interest in her eligibility for Medicaid assisted living waiver benefits for up to three months prior to the date of application survives her death.24
In addition, at the oral argument of this case, defendants conceded that if plaintiffs are successful
on their claims and notice relief is ordered, the estate of Mrs. Hilleger could pursue a state
24 Jaco v. Bloechle, 739 F.2d 239 (6th Cir. 1984), cited by defendants, is not to the contrary. In Jaco, the issue was whether a § 1983 claim brought on behalf of a decedent who died instantly as a result of alleged constitutional violations by the defendants survived the decedent’s death because it involved a “personal injury.” The Sixth Circuit determined that it did, reasoning that to permit an action to survive when the decedent experienced some pain and suffering before expiring, but not when the decedent died instantly, would be anomalous to the purposes behind the civil rights statute. In any event, this case does not involve injuries to the person, but injuries to the property interests of the plaintiffs. Likewise, the Court is not persuaded by the decision in Bernard v. Kansas Health Policy Authority, No. 09-1247, 2012 WL 941674, at *5 (D. Kan. March 20, 2012), cited by defendants. In that case, the court concluded, without any analysis or discussion, that the plaintiff’s claim for a denial of Medicaid benefits was not a claim for “injury to real or personal estate” that survived the plaintiff’s death. Because Bernard was decided under Kansas law, the undersigned declines to follow it.
22

hearing on behalf of Mrs. Hilleger to obtain the assisted living waiver benefits that were denied prior to her “enrollment” date.
Fifth, defendants argue that Mrs. Saunders’ claims are moot because she has not received assisted living waiver services since December 12, 2012, when she moved from the assisted living facility to a nursing home. They allege that this “intervening event” – Mrs. Saunders’ departure from an approved assisted living facility, which is an eligibility requirement for assisted living waiver benefits – eliminates the “live” controversy requirement for standing. In essence, defendants imply that the prospective relief requested by plaintiffs has relevance only to continuing and future participants of the assisted living waiver program. In addition, defendants posit that whether Mrs. Saunders will improve to the point where she will be able to reapply for assisted living waiver benefits is speculative.
Plaintiffs contend a case or controversy still exists as to whether defendants deprived Mrs. Saunders of her rights under federal law and the United States Constitution. Plaintiffs assert that Mrs. Saunders’ claims are not moot because they are not dependent upon her place of residence, especially given the inherently transitional nature of her care needs. They assert that Mrs. Saunders’ injury stems from defendants’ failure to cover her assisted living services from June through July 2012, her injury was “a cognizable injury with provable deprivation of her entitlement to Medicaid benefits when this case was filed,” and “this deprivation continues.” (Doc. 102 at 23). Plaintiffs also allege that given the transitory medical conditions of persons like Mrs. Saunders, whose fragile conditions may require moves to facilities providing greater levels of care, her claims do not become moot upon her change of residence. (Id., citing Ledford v. Colbert, No. 1:10-cv-706, 2012 WL 2263279, at *7 (S.D. Ohio June 18, 2012)). Plaintiffs also note that in addition to Mrs. Saunders’ statutory claim, she has standing to assert her due
23

process claim as the Supreme Court has recognized that a claim for procedural rights is not
subject to “the normal standards for redressability and immediacy” because “[t]he person who
has been accorded a procedural right to protect his concrete interests can assert that right without
meeting” the redressability norms. Lujan, 504 U.S. at 572, n.7.
“The test for mootness is whether the relief sought would, if granted, make a difference
to the legal interests of the parties.” McPherson v. Michigan High School Athletic Ass’n, Inc.,
119 F.3d 453, 458 (6th Cir. 1997) (en banc) (citation omitted). If plaintiffs are successful on the
merits of their statutory and/or due process claims, the prospective injunctive and notice relief
they seek would make a difference to the plaintiffs’ legal interests. At oral argument, defendants
conceded that if the Court orders the declaratory, injunctive, and notice relief that plaintiffs seek,
there is nothing to prevent Mrs. Saunders or Mrs. Hilleger’s estate from requesting a fair hearing
to determine additional days of coverage and obtaining retroactive assisted living waiver
benefits. Because this relief would likely redress the concrete financial injury that plaintiffs have
suffered, they have standing to bring the claims in this case.25
VI. ANALYSIS OF SUBSTANTIVE CLAIMS
The substantive issues in this case are whether the Ohio Medicaid program, which
provides assisted living waiver benefits to individuals who would otherwise require institutional
or nursing home care, violates federal law: (1) in the manner in which Ohio determines the
effective date of an individual’s eligibility for assisted living waiver benefits; (2) in the method
25 Moreover, the Supreme Court has recognized that the termination of a class representative’s claim does not moot the class claims where, as here, the claims are inherently transitory. See Cty. of Riverside v. McLaughlin, 500 U.S. 44, 51 (1991). In a similar case, this Court previously recognized that given the age and health conditions of individuals residing at Ohio Medicaid-eligible assisted living facilities, individuals may pass into and out of Medicaid waiver programs and into higher or lower levels of care. Ledford, 2012 WL 2263279, at *7. The fact that one of the named plaintiffs in Ledford vacated the assisted living facility in which she lived as it was no longer meeting her needs did not moot the class claims for declaratory and injunctive relief. Id. While Mrs. Saunders is not currently receiving assisted living waiver benefits, she may well receive them in the future and Ohio’s policy prohibiting retroactive assisted living waiver benefits will apply to her as in the past. Under these circumstances, dismissal for a lack of standing is not warranted. See Ledford, 2012 WL 2263279, at *7.
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for providing notice to individuals of the eligibility decision; and (3) in the promptness with which eligibility determinations are made.
A. Whether Ohio violates the federal Medicaid statute by providing only prospective, and not retroactive, assisted living waiver benefits.
Federal law mandates retroactive Medicaid coverage for care and services “furnished in or after the third month before the month” of application “if such individual was (or upon application would have been) eligible for such assistance at the time such care and services were furnished.” 42 U.S.C. § 1396a(a)(34). Under Ohio’s Medicaid rules, however, an individual can never receive assisted living waiver benefits for services provided during the three-month retroactive period. Ohio provides prospective-only assisted living waiver benefits based on an “enrollment” date which cannot occur before the date of application. Enrollment in Ohio’s assisted living waiver program cannot occur until five specified events are completed, including approval of a post-application service plan by defendant ODA’s designee. Ohio Admin. Code 173-38-03(C)(1)(b).
Plaintiffs argue that Ohio’s regulations which prohibit assisted living waiver benefits for up to three months prior to the month of application for individuals who were eligible for coverage at the time those services were furnished violate the retroactivity provision of § 1396a(a)(34). Plaintiffs allege that § 1396a(a)(34) requires retroactive coverage for assisted living waiver services as long as a person (1) receives covered Medicaid services, and (2) would have been eligible for Medicaid at the time the services were rendered, if an application had been made at that time. Under Ohio’s Medicaid program, however, an applicant may receive services in a residential care facility for multiple months and be determined financially and clinically eligible for those months, but the individual can receive only prospective coverage of his or her
25

services from the date on which defendant ODA’s designee approves the assisted living service plan.
Defendants contend that receipt of retroactive benefits under § 1396a(a)(34) depends on whether an “individual was (or upon application would have been) eligible for such assistance at the time such care and services were furnished.” 42 U.S.C. § 1396a(a)(34). They allege plaintiffs did not meet the eligibility requirements for assisted living waiver services during the retroactive period. Defendants argue that eligibility for assisted living waiver benefits is prospective only because it requires, among other things, a face-to-face assessment of the applicant to determine the applicant’s level of care and service plan under Ohio Admin. Code 173-38-039(A)(1) and (C). Defendants allege that because an individual cannot be eligible for benefits prior to the face-to-face assessment, individuals cannot be enrolled retroactively in the waiver program.
Plaintiffs counter that Ohio is imposing its own post-application eligibility requirements for assisted living waiver benefits that are contrary to federal law.
This case requires the Court to determine the meaning of § 1396a(a)(34)’s phrase “was (or upon application would have been) eligible” in the context of the assisted living waiver program under 42 U.S.C. § 1396n(c). The Court concludes that when considered in conjunction with the assisted living waiver provision of § 1396n(c), the language of the retroactivity provision of § 1396a(a)(34) is clear: assisted living waiver benefits may be provided retroactively up to three months before application for supportive services furnished during the retroactive period.
In addressing questions of statutory construction, the Court starts by examining the plain language of the statute to discern Congress’s intent. Desert Palace, Inc. v. Costa, 539 U.S. 90,
26

98 (2003) (citing Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992)). It is presumed that Congress’s intent is expressed in the plain language of a statute. Germain, 503 U.S. at 25354. In examining whether Ohio’s practice of providing only prospective, and not retroactive, assisted living waiver benefits violates § 1396a(a)(34), the Court must “consider the language [of § 1396a(a)(34)] itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Flores v. U.S. Citizenship and Immigration Servs., 718 F.3d 548, 551 (6th Cir. 2013) (citation and internal quotation omitted). If the language is unambiguous, it is controlling and the Court’s inquiry is over. Desert Palace, 539 U.S. at 98; Germain, 503 U.S. at 254. See also Brilliance Audio, Inc. v. Haights Cross Commc’n, Inc., 474 F.3d 365, 371 (6th Cir. 2007) (“If the language of the statute is clear, then the inquiry is complete, and the court should look no further.”). If the statutory language does not address the precise question or is ambiguous, then the Court must look to traditional tools of statutory interpretation to ascertain Congress’s intent, including legislative history, policy rationales, and context. See In re Carter, 553 F.3d 979, 986 (6th Cir. 2009); Cowherd v. Million, 380 F.3d 909, 913 (6th Cir. 2004) (citations omitted). If the Court determines that Congress has not directly addressed the precise question at issue, and if the agency responsible for administering the statute has addressed the issue, the court must determine the level of deference it should accord the agency’s interpretation. See Carroll v. Debuono, 998 F. Supp. 190, 194 (N.D.N.Y. 1998) (analyzing Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984)).
Section 1396a(a)(34) states that medical assistance will be provided during the retroactive period if an individual “was (or upon application would have been) eligible for such assistance at the time such care and services were furnished.” 42 U.S.C. § 1396a(a)(34). The
27

phrase “or upon application would have been” indicates that as long as care and services are provided to an individual within three months prior to the month of application, Medicaid coverage is not to be denied based solely on when the application was actually filed. Whether an individual “was” or “would have been” eligible for Medicaid during the three month retroactive period requires a retrospective look at the eligibility requirements for the particular Medicaid program the individual is applying for and the individual’s circumstances during this period. Thus, whether an individual is entitled to retroactive assisted living waiver benefits under § 1396a(a)(34) depends on whether the individual met the specific eligibility requirements for assisted living waiver benefits at the time supportive services were provided, up to three months prior to the month of application. This, in turn, requires an examination of § 1396a(a)(34) in the context of the eligibility criteria for assisted living waiver benefits set forth in the home and community-based services statute, 42 U.S.C. § 1396n(c). Flores, 718 F.3d at 551.
The federal statute governing home and community-based services, which includes assisted living waiver benefits, states:
The Secretary may by waiver provide that a State plan approved under this subchapter may include as ‘medical assistance’ under such plan payment for part or all of the cost of home and community-based services (other than room and board) approved by the Secretary which are provided pursuant to a written plan of care to individuals with respect to whom there has been a determination that but for the provision of such services the individuals would require the level of care provided in a hospital or a nursing facility or intermediate care facility for the mentally retarded the cost of which could be reimbursed under the State plan. 42 U.S.C § 1396n(c)(1). Under the plain terms of the statute, Medicaid coverage is authorized for home and community-based services that are provided “pursuant to a written plan of care” to individuals who require the level of care provided in a hospital or nursing home environment such that without the supportive services the individual would be institutionalized. 42 U.S.C. §
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1396n(c)(1). The assisted living waiver statute authorizes coverage for a variety of supportive services:
A waiver granted under this subsection may . . . provide medical assistance to individuals (to the extent consistent with written plans of care, which are subject to the approval of the State) for case management services, homemaker/home health aide services and personal care services, adult day health services, habilitation services, respite care, and such other services requested by the State as the Secretary may approve. . . . 42 U.S.C. § 1396n(c)(4)(B) (emphasis added). The Court has interpreted the relevant statutory sections “as a whole, giving effect to each word and making every effort not to interpret a provision in a manner that renders other provisions of the same statute inconsistent, meaningless or superfluous.” Mitchell v. Chapman, 343 F.3d 811, 825 (6th Cir. 2003). The Court concludes that the plain language of § 1396a(a)(34) and § 1396n(c) authorizes the payment of retroactive assisted living waiver benefits. Section 1396a(a)(34) mandates the payment of retroactive Medicaid benefits to individuals who “would have been eligible” had they applied during the retroactive period. 42 U.S.C. § 1396a(a)(34). Whether an individual “would have been eligible” for assisted living waiver benefits under § 1396n(c)(1) depends on whether supportive services were “provided pursuant to a written plan of care” and whether the individual otherwise “would require the level of care provided in a hospital or a nursing facility.” 42 U.S.C. § 1396n(c)(1). The supportive services must be “consistent with written plans of care, which are subject to the approval of the State. . . .” 42 U.S.C. § 1396n(c)(4) (emphasis added). Under the plain terms of these statutory provisions, retroactive Medicaid coverage is therefore authorized for assisted living waiver services furnished during the retroactive period as long as (1) those services were provided “pursuant to” and “consistent with” a written plan of care, and (2) the applicant met the hospital
29

or nursing facility level of care requirement during the retroactive period.26 This construction gives effect to both § 1396a(a)(34) and § 1396n(c) and is the only interpretation that does not render the provisions of the retroactivity or assisted living waiver statute meaningless or superfluous. This interpretation is also in keeping with Congress’s mandate that eligibility for Medicaid must be viewed based on the circumstances as if the person had actually made an application during the three month retroactive period. As explained below, there is nothing in the statute that prohibits a State from retrospectively examining the eligibility factors for assisted living waiver benefits.
Defendants argue that a written service plan must be in place before waiver services may be furnished and in most cases the development of the service plan will not occur until after the date of application. (Doc. 120 at 3, 5-6). Although not explicit, defendants’ argument suggests that any services that are provided before a service plan has been developed are not services “provided pursuant to a written plan of care” in accordance with 42 U.S.C. § 1396n(c)(1). (Id. at 3, 5-6, 11). Yet, this interpretation miscomprehends the phrase “pursuant to a written plan of care” as used in § 1396n(c)(1) and is not consistent with the ordinary meaning of the term. See Limited, Inc. v. C.I.R., 286 F.3d 324, 333 (6th Cir. 2002) (citations omitted) (courts construe undefined terms in a statute in accordance with the ordinary or natural meaning). The phrase “pursuant to” has been generally defined by courts to mean “‘in compliance with; in accordance with; under [or] . . . as authorized by . . . [or] in carrying out.’” Alford v. Kuhlman Elec. Corp., 716 F.3d 909, 914 (5th Cir. 2013) (quoting United States v. DeCay, 620 F.3d 534, 544 (5th Cir. 2010) (quoting Black’s Law Dictionary (8th ed. 2004)). See also United States v. Lee, 659 F.3d 619, 622 (7th Cir. 2011); E.P. Paup Co. v. Dir., Office of Workers Comp. Programs, U.S. Dep’t
26 Coverage is also subject to the financial and other eligibility requirements that are not at issue in this case.
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of Labor, 999 F.2d 1341, 1348-49 (9th Cir. 1993). Cf. Bhd. of Ry. & S.S. Clerks, Freight Handlers, Express & Station Emp. v. Ry. Express Agency, Inc., 238 F.2d 181, 184 (6th Cir. 1956) (construing the phrase “pursuant to” in contract to mean “in conformity to”). Once the State agency determines the appropriate types of assisted living services for an individual and memorializes them in a written service plan, services provided in the retroactive period that are “in compliance with” or “in accordance with” that service plan must be covered by Medicaid under § 1396a(a)(34). If such services are not consistent with the applicant’s plan of care, they are not rendered “pursuant to” a plan of care and the State retains the authority to disapprove payment for those services, subject to fair hearing rights upon denial of retroactive coverage.
In addition, defendants’ construction is inconsistent with an analogous provision of the Medicaid statute that provides retroactive coverage for services provided “in accordance with a written plan of care” to Medicaid applicants in nursing facilities. 42 U.S.C. § 1396r(b)(2). Section 1396r governs the Medicaid requirements for nursing facilities and provides in relevant part:
A nursing facility must provide services and activities to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident in accordance with a written plan of care which— (A) describes the medical, nursing, and psychosocial needs of the resident and how such needs will be met. . . . 42 U.S.C. § 1396r(b)(2). Defendants acknowledge that retroactive coverage for such services is available under § 1396a(a)(34). (Doc. 104 at 8). Defendants argue that the comparison of assisted living waiver benefits to nursing facility benefits is an “apples to oranges” comparison and that the criteria for Medicaid payments for nursing facility services and assisted living waiver services are separate and distinct. (Doc. 104 at 7). The Court disagrees and finds the similarity of the language used in both statutes – that
31

assisted living waiver services be provided “pursuant to” and “consistent with” a plan of care and that nursing facility services be provided “in accordance with” a plan of care – to be persuasive evidence of Congress’s intent and an apt comparison in construing the statutory language.
The Court is further persuaded that assisted living waiver benefits are subject to § 1396a(a)(34) retroactivity given Congress’s choice to not expressly exempt assisted living waiver benefits from the retroactivity requirement. There is nothing in the plain language of either § 1396a(a)(34) or § 1396n(c) that expressly prohibits coverage for services provided in the retroactive period. Notably, Congress has limited § 1396a(a)(34)’s retroactivity requirement in specified instances, but Congress has not done so for assisted living waiver benefits. For example, Congress made explicit exceptions to the retroactivity requirement in particular Medicaid programs, such as in 42 U.S.C. § 1396d(a) for Qualified Medicare Beneficiaries (“The term ‘medical assistance’ means payment of part or all of the cost of the following care and services or the care and services themselves, or both (if provided in or after the third month before the month in which the recipient makes application for assistance or, in the case of medicare cost-sharing with respect to a qualified medicare beneficiary described in subsection (p)(1) of this section, if provided after the month in which the individual becomes such a beneficiary). . . .”) and in 42 U.S.C. § 1315(a)(1) for Medicaid “demonstration” projects (Medicaid demonstration waiver allows “any” requirement of section 1396a to be waived). See Dozier, 2014 WL 5480815, at *6 (waiving § 1396a(a)(34) retroactive coverage for family planning program under demonstration project statute, 42 U.S.C. § 1315(a)(1)). The exceptions to § 1396a(a)(34) retroactivity for Qualified Medicare Beneficiaries and Medicaid demonstration projects demonstrate that Congress understood how to except specific Medicaid programs from the retroactivity requirement. The fact that Congress did not create an explicit exception to the
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retroactivity requirement set forth in § 1396a(a)(34) for home and community-based services
under § 1396n(c) persuades this Court that it should not imply such an exception for assisted
living waiver benefits. See Hui v. Castaneda, 559 U.S. 799, 807 (2010) (“explicit exception” in
one statute was “powerful evidence” that similar statutes did not “imply such an exception”).
The language of the § 1396n(c) home and community-based services statute also sheds
light on whether Congress intended to exempt assisted living waiver benefits from §
1396a(a)(34)’s retroactivity requirement. Section 1396n(c) specifies that only three § 1396a(a)
requirements may be “waived” by a State in providing home and community-based services
such as assisted living waiver benefits: the requirements of § 1396a(a)(1) (relating to
“statewideness”), § 1396a(a)(10)(B) (relating to comparability), and § 1396a(a)(10)(C)(i)(III)
(relating to income and resource rules applicable in the community). See 42 U.S.C. §
1396n(c)(3).27 The home and community-based services provision of § 1396n(c) does not
authorize the State to waive the retroactivity provision of § 1396a(a)(34). As the Ninth Circuit
has explained:
The list of waivable requirements in 42 U.S.C. § 1396n(c)(3) is exclusive. Nothing in the HCBS waiver provision provides the Secretary with authority to waive any other of the Medicaid Act’s requirements when granting an HCBS waiver. The ‘presumption that when a statute designates certain persons, things, or manners of operation, all omissions should be understood as exclusions’ thus comes into play.
Arc of California, 757 F.3d at 985-86 (internal quotation marks and citations omitted) (emphasis
in the original) (finding state not permitted to waive compliance with § 1396a(a)(30)(A), a
provision requiring state agency to set Medicaid reimbursement rates based on responsible cost
studies, in connection with HCBS waiver under § 1396n(c)). See also McMillan v. McCrimon,
27 Ohio’s assisted living waiver application requests waiver of only one federal requirement: Medicaid’s comparability requirement of 42 U.S.C. § 1396a(a)(10)(B), which mandates that benefits of the same amount, duration, and scope be available to all qualifying Medicaid beneficiaries, regardless of the beneficiary’s eligibility category.
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807 F. Supp. 475, 482 (C.D. Ill. 1992) (while § 1396n(c)(3) allows the Secretary to waive certain uniform requirements of the Medicaid Act, such as requirements relating to statewideness, comparability, and income, it does not allow a waiver of other Medicaid requirements, such as the “reasonable promptness” requirement of 42 U.S.C. § 1396a(a)(8)). Because the retroactivity requirement of § 1396a(a)(34) cannot be waived, it remains in effect for those applying for assisted living waiver benefits.
The structure of the home and community-based services waiver statute further persuades this Court that Congress did not intend to exempt § 1396a(a)(34) retroactivity from assisted living waiver benefits. Congress structured the § 1396n waiver statute to permit broad waivers in some instances, such as those listed under § 1396n(b) (authorizing waiver of “such requirements of section 1396a” – some 80 plus requirements with only three exceptions – to promote cost-effectiveness and efficiency); however, Congress authorized more narrow waivers in other instances such as those under § 1396n(c) (authorizing waiver of only three requirements of § 1396a(a) providing for home and community-based services waivers). See Arc of California, 757 F.3d at 986. “Section 1396n(b) is thus structured exactly inversely to the HCBS waiver provision [of § 1396n(c)]; it authorizes the waiver of any otherwise-applicable requirement, except three. The existence of 42 U.S.C. § 1396n(b) one paragraph above the subsection authorizing HCBS waivers demonstrates that Congress carefully structured the statute to allow broad waivers in some instances and not others.” Id. Particularly when juxtaposed against § 1396n(b), the statutory structure of § 1396n(c) indicates that no requirements other than those specifically enumerated in subsection (c)(3) can be waived.
Nevertheless, defendants argue that applicants for assisted living waiver benefits can never be eligible for retroactive benefits under § 1396a(a)(34) because eligibility for Ohio’s
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assisted living waiver program depends on post-application events, such as a determination of
the individual’s level of care and the development of a service plan. Defendants allege these are
“real-time” events that can never occur during the three-month retroactivity period. Defendants
assert that before eligibility for assisted living waiver benefits may be determined, there must be
a face-to-face assessment and use of a specific assessment tool in making the level of care
determination and developing the service plan. Defendants also contend that the service
planning process set forth in federal regulations bars retroactive assisted living waiver benefits.
See 42 C.F.R. § 441.301(c)(1) and (c)(2).28 Defendants argue that because Ohio must provide
assisted living waiver services under a written service plan that is developed based on point-in-
time events that cannot be backdated – such as the participation and signature of the individual –
defendants cannot authorize the payment of assisted living waiver benefits before these
requirements are met. Defendants argue this interpretation is reinforced by the nature of the
person-centered process and specific requirements for service plans under 42 C.F.R. § 441.301.
Plaintiffs contend that nothing in the federal Medicaid statute and regulations governing
assisted living waiver benefits prohibits Ohio from retrospectively examining the eligibility
requirements for the assisted living waiver program when determining whether an individual is
eligible for retroactive benefits. Plaintiffs do not dispute that home and community-based
services, including assisted living waiver services, are provided pursuant to “a written plan of
care.” However, plaintiffs argue the service planning process for assisted living waiver services
28 Federal regulations governing the written plan of care provide that assisted living waiver services must be furnished “[u]nder a written person-centered service plan (also called plan of care) that is based on a person-centered approach and is subject to approval by the Medicaid agency.” 42 C.F.R. § 441.301(b)(1)(i). This person-centered process includes requirements that the individual lead the process, that people chosen by the individual be included in the process, that necessary information and support be provided to ensure that the individual directs the process, and that the process is timely and occurs at times and locations convenient for the individual. 42 C.F.R § 441.301(c)(1)(i)-(iii). Federal regulations also specify that the service plan itself must “be finalized and agreed to, with the informed consent of the individual in writing, and signed by all individuals and providers responsible for its implementation.” 42 C.F.R. § 441.301(c)(2)(ix).
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does not prohibit a retrospective consideration of eligibility and is similar to Ohio’s long-term care service planning process in nursing home facilities, for which retroactive Medicaid is provided.
The Court is not persuaded by defendants’ argument that the requirement of a “face-toface” assessment to determine the level of care and to develop a written service plan precludes retroactive assisted living waiver benefits. As defendants acknowledge, the “level of care” determination for assisted living waiver benefits is not always conducted “face-to-face.” See Ohio Admin. Code 5160-3-14(A)(2) (“may occur face-to-face or by a desk review,29 as defined in rule 5101:3-3-0530 of the Administrative Code. . . .”) (emphasis added). More importantly, there is nothing about a face-to-face assessment or the use of the assessment tool that prevents a retrospective determination of eligibility as discussed above. As defendants acknowledge, Ohio routinely offers retroactive coverage to Medicaid beneficiaries for long-term care services in a nursing facility.31 (Doc. 104 at 8). Moreover, the assessment form utilized for determining the “level of care” requirement for assisted living waiver services is the same form used for determining eligibility for long-term nursing facility services. See Ohio Admin. Code 5160-314(B) (form JFS 03697); Doc. 93, Exs. F, X.
The Court also disagrees that the signature requirements and person-centered service planning process set forth in the federal regulations foreclose a retrospective assessment of eligibility for assisted living waiver benefits. Applications for other Medicaid programs require
29 A desk review is defined as “a level of care determination process that is not conducted in person.” Ohio Admin. Code 5160-3-05(B)(10). 30 This Code section has been renumbered as Ohio Admin. Code 5160-3-05. 31 Ohio Admin. Code § 5160:1-1-51(K)(1)(b) (retroactive coverage for nursing facility residents and other nonassisted-living Medicaid beneficiaries); 42 U.S.C. § 1396r(b)(2) (written plan of care required in nursing facility), (b)(3)(C)(i)(I) (assessment required within 14 days after nursing facility admission); 42 C.F.R. § 483.20(k)(2)(i) (in nursing facility, care plan developed within 7 days after comprehensive assessment).
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the signature of the applicant (a “real-time” event), but do not prevent the provision of retroactive benefits. See 42 C.F.R. § 435.907(f); Ohio Admin. Code 5160:1-1-51(D), (G), (I), (K). There is no logical explanation for why the requirement of a “real-time” signature should bar an assessment of whether an individual “would have been eligible” for assisted living waiver benefits pre-application during the three month retroactivity period. In addition, the personcentered process is intended to respect the individual preferences and choices of those seeking assisted living services, and there is no logical justification for using it to impede their right to retroactive coverage. See 42 C.F.R. § 441.301(c)(1), (2).
Ohio’s rules setting the effective date of assisted living waiver eligibility as beginning only after an application is filed and after the State approves a service plan, assesses financial qualifications (as in Mrs. Hilleger’s case), or determines the level of care qualifications thwart Congress’s intent as expressed in § 1396a(a)(34). These rules permit the State to evade the retroactivity requirement by simply selecting a definition of “eligibility” that relies on a postapplication event. Defendants’ interpretation effectively eviscerates the “(or upon application would have been)” provision of § 1396a(a)(34), which contemplates a retrospective view of an individual’s circumstances had that person actually applied for Medicaid when he or she received the care or services.
Finally, defendants argue that the Court should defer to CMS’s guidance on the issue of whether assisted living waiver benefits may be provided during the retroactive eligibility period set forth in § 1396a(a)(34). Defendants state that the “CMS Application and Instructions to States” utilized by Ohio when it applied for the assisted living waiver support Ohio’s
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interpretation.32 Defendants further note that CMS approved Ohio’s assisted living waiver
application which was submitted in accordance with these instructions. Defendants also assert
that they specifically asked CMS about retroactive enrollment on the HCBS waiver and in
response CMS provided defendants with “Olmstead Update #3” issued by the federal Health
Care Financing Administration (the precursor to CMS). (Doc. 113, Hobbs Aff. ¶¶ 5-6).33 Based
upon Olmstead Update #3 and the review of other materials, Ohio amended its waiver in March
2014 to change enrollment in the assisted living waiver program to the latest of (1) the effective
date of basic Medicaid; (2) the date the individual meets the level of care; (3) the date the
individual meets the special waiver requirements; and (4) the date of the approved service plan
(which includes at least one waiver service). (Id., ¶ 7). Defendants claim that CMS therefore
implicitly approved Ohio’s approach.
Plaintiffs contend that the CMS materials cited by defendants are sub-regulatory and do
not address the interpretation of § 1396a(a)(34). Plaintiffs also argue that CMS’s approval of
Ohio’s assisted living waiver application lends no support to defendants’ interpretation of §
1396a(a)(34). They allege that the fact of the approval alone gives no indication that CMS
considered how to interpret § 1396a(a)(34) or how to apply that section to Ohio’s waiver
application. In addition, plaintiffs contend Olmstead Update #3, which announced a policy
change to “facilitate expeditious initiation of waiver services” (Doc. 102, Pecquet Decl., Ex. B),
32 The CMS Instructions state that “all waiver services must be furnished pursuant to a written service plan that is developed for each waiver participant” and that “Federal Financial Participation (FFP) may not be claimed for waiver services that are furnished prior to the development of the service plan or for waiver services that are not included in an individual’s service plan.” (Doc. 89, Ex. 5, App. D-1 at 178; Doc. 89, Ex. 5, Item 6-A at 55). 33 The “Olmstead Update” sets forth a policy change intended to facilitate the expeditious initiation of waiver services by permitting “provisional” written plans of care identifying the essential Medicaid services to be provided in the first 60 days of waiver eligibility, with a fuller plan of care to be developed subsequently. This document also states that the “earliest date of HCBS waiver eligibility” is “the last date all of the following requirements have been met”: (1) basic Medicaid eligibility; (2) level of care; (3) special waiver requirements; (4) plan of care; and (5) waiver service. (Doc. 113, Ex. 1B).
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actually undermines defendants’ position. Plaintiffs allege that the policy change demonstrates
the federal government can waive or modify such policies to facilitate access to services by
allowing assisted living waiver services to be initiated upon a “provisional” care plan prior to the
development of a formal care plan. Id.
The Court need not defer to CMS’s interpretation of the issues in this case because
neither 42 U.S.C. § 1396a(a)(34) nor 42 U.S.C. § 1396n(c) is ambiguous. Chevron, 467 U.S. at
842-43. As explained above, the clear language of the statute requires States to provide
retroactive Medicaid benefits to eligible individuals applying for assisted living waiver benefits.
Congress did not waive § 1396a(a)(34) retroactivity for home and community-based services
waivers under § 1396n(c). Nor did Congress limit § 1396a(a)(34)’s retroactivity requirement for
home and community-based services waivers as it did for Qualified Medicare Beneficiaries (42
U.S.C. § 1396d(a)) and Medicaid demonstration waiver projects (42 U.S.C. § 1315(a)(1)). Even
if the relevant statutory provisions were considered silent or ambiguous, CMS’s interpretation is
not warranted deference because it lacks any rationale and is contrary to the clear intent of
Congress.
Generally, courts give deference to the interpretations of an agency tasked with issuing
implementing regulations. Chevron, 467 U.S. at 842-44. However, where the agency’s
interpretations lack the force of law, the Court gives “respect” to such interpretations to the
extent they are persuasive:
To the extent that HHS has issued guidance on the federal Medicaid statutes in the form of opinion letters, an agency manual, and an amicus brief that lack the force of law, its statutory interpretations are not afforded deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), but “are ‘entitled to respect’ under . . . Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944), . . . only to the extent that those interpretations have the ‘power to persuade[.]’” Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000) (internal citation altered); see In re Carter, 553 F.3d 979, 987-88 (6th Cir. 2009) (applying
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Skidmore to the amicus brief filed by a federal agency charged with administering a statutory scheme); Caremark, Inc. v. Goetz, 480 F.3d 779, 787 (6th Cir. 2007) (applying Skidmore to interpretations of Medicaid statutes set forth by CMS).
Hughes v. McCarthy, 734 F.3d 473, 478 (6th Cir. 2013).
The Court declines to give deference to CMS’s waiver instructions or its response to
Ohio’s 2014 inquiry. Neither squarely addresses the retroactivity issue in the instant case nor
explains the reasoning behind the provision of prospective-only assisted living waiver benefits.
The weight afforded an agency’s interpretation “in a particular case will depend upon the
thoroughness evident in its consideration, the validity of its reasoning, its consistency with
earlier and later pronouncements, and all those factors that give it power to persuade, if lacking
power to control.” Young v. United Parcel Service, Inc., 135 S.Ct. 1338, 1352 (2015) (quoting
Skidmore, 323 U.S. at 140). In this case, defendants have offered no evidence or reasoning in
support of CMS’s purported interpretation. Therefore, the Court cannot conclude that CMS’s
interpretation is reasonable, and the language in CMS’s instructions and Olmstead Update lack
the “power to persuade.” Skidmore, 323 U.S. at 140.
More importantly, CMS’s interpretation is contrary to the statutory language discussed
above and Congress’s intent in passing both the retroactivity provision of § 1396a(a)(34) and the
assisted living waiver provision of § 1396n(c). In authorizing retroactive Medicaid benefits,
Congress intended to protect individuals from situations where they otherwise would be billed
privately despite meeting Medicaid eligibility standards.34 See Debuono, 998 F. Supp. at 196.
34 STAFF OF S. COMM. ON FINANCE, 92D CONG., REP. TO ACCOMPANY H.R. 1 TO AMEND THE SOCIAL SECURITY ACT, AND FOR OTHER PURPOSES, at 209 (September 26, 1972), available at https://www.google.com/?gws_rd =ssl#q=STAFF+OF+S.+COMM.+ON+FINANCE%2C+92D+CONG.%2C+REP.+TO+ACCOMPANY+H.R.+1+T O+AMEND+THE+SOCIAL+SECURITY+ACT%2C+AND+FOR+OTHER+PURPOSES%2C+at+209+%28Septe mber+26%2C+1972%29 (“Thirty-one States have elected to provide this coverage, thereby protecting persons who are eligible for medicaid but do not apply for assistance until after they have received care, either because they did not know about the medicaid eligibility requirements or because the sudden nature of their illness prevented their applying. The committee agrees with the House that such coverage is reasonable and desirable and recommends, as it did in 1970 in HR 17550, that States be required to provide protection for that 3-month period. Therefore, the
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Congress recognized that individuals who were otherwise eligible for Medicaid may not apply
for Medicaid benefits the moment they become sick or receive supportive services, despite
meeting all of the qualifications for the program. Congress also acknowledged the desirability of
providing coverage for medical care and services to Medicaid-eligible individuals prior to an
actual application so as to encourage providers to furnish necessary medical assistance during the
retroactive period.35 CMS’s interpretation runs counter to these dual purposes.
Additionally, CMS’s interpretation thwarts Congress’s intent in enacting the home and
community-based services waiver statute. The Medicaid Act was amended in 1981 to permit
waiver of the then-current definition of “covered medical services” to include “certain
nonmedical support services which are provided pursuant to a plan of care to an individual who
is otherwise at risk of being institutionalized and who would, in the absence of such services be
institutionalized.” S. REP. NO. 97-139, at 432 (1981). Congress noted:
Federal matching under Medicaid is only available for services which are primarily medical in nature. Certain associated services are not eligible for Federal matching payments. However, these services while not strictly medical in nature may in fact contribute to improved health, and could potentially postpone or prevent institutionalization. To the extent that institutionalization is deferred or avoided, certain cost savings may result.
Id. at 481. The passage of the home and community-based services waiver statute was intended
to reduce the cost of Medicaid for the elderly who, by virtue of their institutionalization, utilized
a proportionately higher rate of Medicaid dollars:
Under current law, Medicaid provides little or no coverage for long-term care services in the community, while offering full or partial coverage for such care in
committee bill requires all States to provide coverage for care and services furnished in or after the third month prior to application to those individuals who were otherwise eligible when the services were received. . . .”). 35 Amendments to the Social Security Act 1969-1972: Hearing on H.R. 17550 Before the S. Comm. on Fin., 91st Cong. 1262 (1970) (statement of Elliot L. Richardson, Secretary, Dept. of Health, Education, and Welfare), available at http://www.ssa.gov/history/pdf/Downey%20PDFs/Amendments%20to%20the%20Social% 20Security %20Act%201969-1972%20Vol.%208.pdf.
41

an institution. The Committee is concerned that even though only approximately 6% of the elderly reside in institutions, more than 40% of Medicaid expenditures went for institutional care this year.
It has been estimated that a quarter of the current nursing home population does not need full-time, residential care. Many elderly, disabled and chronically ill persons live in institutions not for medical reasons, but because of the paucity of health and social services in their communities, and their inability to pay for those services or to have them covered by Medicaid when they do exist.
. . .
Under the provisions of this section, states which elect to have home-based care covered by medicaid would be required to develop a community care plan subject to the approval of the Secretary. Under the plan, states would have to provide for a comprehensive assessment of all persons who are eligible or applying for Medicaid coverage for care in a skilled nursing facility (SNF) or an intermediate care facility (lCF; ICF-MR ). The assessment must be a direct and personal one, where the person performing the assessment actually sees and interviews the person applying for care.
This assessment should take place soon after application is made, and should be conducted by trained persons, preferably by a multi-disciplinary team of health and social service workers. This assessment must take into account all the factors, including family supports, community ties, and health and financial factors, relating to the need of the individual for long-term care in a SNF or ICF.
. . .
The Committee views the services under this section as a means of furthering established federal policy of deinstitutionalization and promoting access to community-based services, as evidenced by other federal programs. . . .
. . .
For persons determined to be in need of nursing home level of care who choose, instead, to remain in the community, the State would be required to provide for the development of a written plan of care describing the service needs of the individual and prescribing those services. The committee emphasizes that the ultimate choice about institutional placement rests with the patient and appropriate family members.
H.R. REP. NO. 97-158, vol. II, at 316-320 (1981). See also Arc of California, 757 F.3d at 980
(The HCBS “waiver provision originated in 1981, in response to the fact that a disproportionate
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percentage of Medicaid resources were being used for long-term institutional care and studies showing that many persons residing in Medicaid-funded institutions would be capable of living at home or in the community if additional support services were available.”).
By prohibiting retroactive coverage, Ohio’s assisted living waiver program frustrates Congress’s goal of furthering deinstitutionalization and lowering Medicaid expenditures for individuals who would otherwise require nursing home care but with supportive services can live safely in the community. Because of the delays inherent in Ohio’s post-application processes, individuals are faced with remaining institutionalized in a nursing home or choosing more expensive nursing home care in the first instance while they wait for Ohio to determine their eligibility. But for the financial assistance of family members who were able to front the costs of assisted living services for their mothers, Mrs. Saunders would have had to remain in a nursing home and Mrs. Hilleger would have had to move from her (already Medicaid-approved) assisted living care facility to a nursing home to continue to receive supportive services until Ohio completed the eligibility assessment process. (Doc. 80, ¶ 4; Doc. 81, ¶ 6). Ohio’s program forces low-income individuals whose level of care qualifies them for institutionalization but who lack the family financial support to remain in their assisted living facilities to opt for nursing home care in order to receive Medicaid assistance. This result is contrary to Congress’s purpose of providing assisted living waiver services to avoid institutionalization. Therefore, the Court is not obligated to defer to CMS’s waiver instructions or response to Ohio’s 2014 inquiry as they are “deem[ed] inconsistent with [the] statutory mandate” and “frustrate the congressional policy underlying [the] statute.” Ohio Dept. of Mental Retardation and Dev. Disabilities, 761 F.2d at 1193 (quoting NLRB v. Brown, 380 U.S. 278, 291 (1985)).
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Nor is the Court persuaded that CMS’s “approval” of Ohio’s assisted living waiver application supports defendants’ interpretation of § 1396a(a)(34). Even if CMS’s approval of the assisted living waiver is entitled to Chevron deference, see Harris v. Olszewski, 442 F.3d 456, 470 (6th Cir. 2006), the undersigned cannot accept CMS’s interpretation in this case as it is contrary to the statutory language, purpose, and congressional intent behind the § 1396a(a)(34) retroactivity provision and § 1396n(c)(1) assisted living waiver program. Cf. Lynch v. Lyng, 872 F.2d 718, 724 (6th Cir. 1989) (where “the language of the statute, the broader purposes, and the legislative history argue against the Secretary’s position,” court is not compelled to defer to his interpretation); In re Oliver M. Elam, Jr., Co., 771 F.2d 174, 181 (6th Cir. 1985) (rejecting agency interpretation that has “no support in the plain language of” the relevant provision). Where, as here, the “administrative constructions . . . are contrary to clear congressional intent,” it is the duty of the Court, as “the final authority on issues of statutory construction,” to reject such interpretations. Chevron, 467 U.S. at 843 n.9.
The language of § 1396a(a)(34) and § 1396n(c) is clear and provides that a State must consider an applicant’s eligibility for retroactive assisted living waiver benefits. Even if the language of the statute can be regarded as silent or ambiguous, the legislative history of the Medicaid home and community-based services statute shows that Ohio’s interpretation of the assisted living waiver program contravenes Congress’s intent to provide retroactive Medicaid benefits to individuals who are otherwise eligible for such benefits. Ohio’s interpretation also undermines Congress’s goal of reducing unnecessary institutionalization of individuals who can live safely in the community with supportive services.
The Court acknowledges that the retroactivity requirement set forth in § 1396a(a)(34) will not always be implicated when a person applies for assisted living waiver benefits. The
44

retroactivity requirement of § 1396a(a)(34) will not come into play for individuals who apply for assisted living waiver benefits when they do not already reside in an assisted living facility. However, for individuals who already live in an approved assisted living facility – like Mrs. Hilleger and Mrs. Saunders – and who have been receiving supportive services, the State must retrospectively consider the eligibility requirements for assisted living waiver benefits for the three months prior to the date of application. The State must assess whether, at any time up to three months prior to the application for assisted living waiver benefits, the individual met the financial eligibility requirements; whether the person had a need for intermediate or skilled level of care; and whether the person received supportive services consistent with the plan of care. If so, the State must grant retroactive assisted living waiver benefits in accordance with § 1396a(a)(34).
Therefore, the Court concludes that Ohio’s assisted living waiver program which provides only prospective, and not retroactive, assisted living waiver benefits violates federal law as set forth in 42 U.S.C. § 1396a(a)(34). Summary judgment is granted for plaintiffs on this claim.
B. Whether defendants violated plaintiffs’ due process rights when defendants denied them retroactive coverage for assisted living waiver services and failed to provide written notice of that denial and the reasons for such denial.
Under 42 U.S.C. § 1396a(a)(3), an applicant whose claim for medical assistance under the State plan is denied or is not acted upon with reasonable promptness is entitled to a fair hearing before the State agency. The State agency must notify applicants for Medicaid in writing of their right to a hearing at the time of application and whenever the agency takes “any action affecting [their] claims.” 42 C.F.R. § 431.206(b),(c)(1) and (2). “Action” is defined as “a termination, suspension, or reduction of Medicaid eligibility or covered services.” 42 C.F.R. §
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431.201. The notice must include: (a) a statement of what action the State intends to take; (b) the
reasons for the intended action; (c) the specific regulations that support the action; (d) an
explanation of the individual’s right to request an evidentiary hearing if one is available, or a
State agency hearing; and (e) an explanation of the circumstances under which Medicaid is
continued if a hearing is requested. 42 C.F.R. § 431.210. The right to a hearing and the
attendant processes must meet the due process standards set by the Supreme Court. 42 C.F.R. §
431.205(d) (explicitly incorporating the due process standards of Goldberg v. Kelly, 397 U.S.
254 (1970)).
In this case, the notice received by Mrs. Hilleger states in relevant part:
Your ASSISTED LIVING WAIVER – ODA application dated 10/19/12 has been APPROVED effective 01/01/13. You have been approved for HOME & COMMUNITY BASED SERVICES MEDICAID benefits for the month(s) 01/2013, 02/2013.
Reason: YOU ARE ELIGIBLE UNDER ALL THE RULES. We base this action on OHIO ADMINISTRATIVE CODE, Rule 5101:1-38-01.8.
(Doc. 81, Ex. A). The notice received by Mrs. Saunders states:
We APPROVED your ASSISTED LIVING WAIVER – ODA application of 6/25/2012. Your benefits start 08/02/2012. You will get benefits for 07/2012, and each month after that.
Reason: YOU ARE ELIGIBLE UNDER ALL THE RULES. We base this action on OHIO ADMINISTRATIVE CODE, Rule 5101:1-38-01.8.
(Doc. 80, Ex. B).
Plaintiffs contend that defendants violated their due process rights when defendants
denied them retroactive coverage for assisted living waiver services and failed to provide written
notice of that denial and the reasons for such denial. They allege that neither Mrs. Hilleger nor
Mrs. Saunders received a due process notice detailing the period of time that was not being
covered by assisted living waiver benefits and the reasons why their eligibility began on a certain 46

date, but not before that date. Plaintiffs contend that without the factual information explaining why a particular effective date was selected, they do not have the contextual information needed to evaluate whether there is a basis for disputing the agency’s decision and requesting a hearing.
Defendants contend that because plaintiffs’ assisted living waiver applications were actually approved, they were not entitled to a fair hearing notice under 42 U.S.C. § 1396a(a)(3) or 42 C.F.R. §§ 431.201 and 431.206, which mandate notice only for a denial, termination, suspension or reduction of Medicaid eligibility or covered services. Defendants contend that in any event, they complied with 42 U.S.C. § 1396a(a)(3), the applicable regulations, and due process. Defendants allege the notices provided to plaintiffs advised them not only that their applications had been approved, but also of the effective date of assisted living waiver benefits, information from which plaintiffs could infer they had not been granted retroactive benefits. Defendants state the notice also included information about plaintiffs’ fair hearing rights:
Ask for a State hearing if you disagree with what we are doing or think we are making a mistake. At the hearing, you can explain your reasons and we will explain our reasons. . . . (Doc. 80, Ex. B; Doc. 81, Ex. A) (emphasis in the original). As an initial matter, the Court is not persuaded by defendants’ argument that because they did not deny plaintiffs’ applications for assisted living waiver benefits, but in fact approved the applications, plaintiffs were not entitled to any notice under the Medicaid statute or regulations. Defendants’ argument mistakenly assumes that plaintiffs were never eligible for pre-application assisted living waiver benefits under 42 U.S.C. § 1396a(a)(34), an assumption the Court has rejected. In actuality, defendants approved in part and denied in part plaintiffs’ applications for assisted living waiver benefits, which necessarily encompassed a request for retroactive benefits. To the extent plaintiffs’ applications for retroactive assisted living waiver
47

benefits were denied, plaintiffs were clearly entitled to notice of that denial and a hearing to contest this action. 42 U.S.C. § 1396a(a)(3) (mandating the “opportunity for a fair hearing before the State agency to any individual whose claim for medical assistance under the plan is denied. . . .”). Cf. Ladd v. Thomas, 962 F. Supp. 284, 293 (D. Conn. 1997) (“whenever the defendant’s approval of a written prior authorization request is predicated on a modification of the request which has the effect of reducing what the recipient has requested, the plaintiffs are statutorily entitled to notice that this reduction has been made and notice of the right to appeal the decision to reduce the request”).
Although defendants did issue notices to plaintiffs, as set forth above, those notices are not adequate for purposes of due process. “A primary purpose of the notice required by the Due Process Clause is to ensure that the opportunity for a hearing is meaningful.” City of West Covina v. Perkins, 525 U.S. 234, 240 (1999) (citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). “[T]he explanation of the proposed action and of the reasons for the action must be detailed enough to allow for a meaningful hearing.” See Barry v. Corrigan, 79 F. Supp.3d 712, 2015 WL 136238, at *24 (E.D. Mich. Jan. 9, 2015) (citing Morgan v. United States, 304 U.S. 1, 18 (1938) (“The right to a hearing embraces not only the right to present evidence but also a reasonable opportunity to know the claims of the opposing party and to meet them”); In re Gault, 387 U.S. 1, 33 (1967) (“Notice, to comply with due process requirements . . . must set forth the alleged misconduct with particularity”); Hamby v. Neel, 368 F.3d 549, 561 (6th Cir. 2004) (holding notice of rejection of application for benefits violated due process where applicants were “not adequately informed as to how to fully receive the benefits to which they were entitled . . . nor were they fully apprised of the reasons for denial”)). The notices here fail to advise plaintiffs that they were denied retroactive assisted living waiver benefits for periods
48

during which they were otherwise eligible. Although the effective date set forth in the notice gives some indication that benefits will not be provided before that date, the notice nevertheless fails to explain the reasons or factual basis for this action. Due process requires the notice to state “the specific factual reasons so that plaintiffs may seek to challenge [the] defendant’s view of their eligibility for benefits.” Cherry v. Tompkins, No. 1:94-cv-460, 1995 WL 502403, at *17 (S.D. Ohio Mar. 31, 1995) (finding notice stating a generic reason – “you do not have an appropriate level of care” – along with citation to applicable section of public assistance manual, inadequate as it failed to detail the specific factual reasons supporting proposed termination of Medicaid benefits). Because the notice received by plaintiffs fails to specify with particularity the factual information or reasons for defendants’ denial of retroactive assisted living waiver benefits, it is not adequate notice under the Due Process Clause. Summary judgment is granted for plaintiffs on their due process claim.
C. Whether defendants violated the reasonable promptness requirement of 42 U.S.C. § 1396a(a)(8).
Title 42 U.S.C. § 1396a(a)(8) requires that medical assistance under the Medicaid program “be furnished with reasonable promptness to all eligible individuals.” The corresponding regulation requires that a state agency must “[f]urnish Medicaid promptly to beneficiaries without any delay caused by the agency’s administrative procedures.” 42 C.F.R. § 435.930(a).
Plaintiffs contend that defendants have violated the reasonable promptness requirement of the Medicaid Act “[b]ecause [p]laintiffs never receive Medicaid medical assistance for assisted living services for the period of time prior to the approval of a service plan, even though those services are provided during days or months when other Medicaid-funded services would be covered.” (Doc. 74 at 24, citing Ohio Admin. Code §§ 173-38-03(C)(1)(b)(iv) & (c), 5160-
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33-04(C)) (emphasis in the original). In other words, plaintiffs claim they are entitled to receive retroactive Medicaid assisted living waiver coverage with reasonable promptness, as in the case of any other Medicaid covered services, and defendants’ actions have deprived them of this right.
Defendants contend that plaintiffs’ argument rests on the incorrect assumption that Ohio’s provision of prospective-only assisted living waiver benefits violates the retroactivity provision of § 1396a(a)(34). Defendants dispute that the timeframe for determining reasonable promptness includes the time prior to the submission of plaintiffs’ applications for assisted living waiver benefits. They argue the relevant timeframe for determining “reasonable promptness” should be calculated from the date of application to the date all of the waiver-specific eligibility criteria were met. Given this timeframe, defendants allege that plaintiffs’ eligibility for assisted living waiver benefits was decided in a timely manner. See 42 C.F.R. § 435.911 (stating agency’s determination of eligibility shall not exceed 90 days for an applicant who applies for Medicaid on basis of disability). Defendants assert that in accordance with this regulation Mrs. Hilleger’s application was processed within 77 days, and Mrs. Saunders’ application was processed within 23 days. (Doc. 89 at 23-24). Defendants also contend that plaintiffs’ applications were determined with reasonable promptness because defendants followed the criteria of the CMS approved waiver and “a state does not violate 42 U.S.C. §1396a(a)(8) by using criteria that formed the basis for CMS’[s] approval of the waiver.” (Doc. 89 at 24, citing Bertrand ex rel. Bertrand v. Maram, 495 F.3d 452, 459 (7th Cir. 2007)).
As an initial matter, the Bertrand case cited by defendants is distinguishable from the instant case. The plaintiffs in Bertrand challenged a state’s priority criteria for limiting enrollment in the state’s HCBS waiver program. The Seventh Circuit noted that the power to limit enrollment is explicitly granted to states by the HCBS statute and held that “[a] state does
50

not violate § 1396a(a)(8) by using the criteria that formed (part of) the basis for requesting a waiver under § 1396n(c)(1).” Bertrand, 495 F.3d at 459. Here, in contrast, plaintiffs do not challenge enrollment limits or other § 1396a(a) requirements that are subject to HCBS waiver. As discussed above, the assisted living waiver statute does not permit waiver of the retroactivity requirement of § 1396a(a)(34). Therefore, defendants’ reliance on Bertrand is misplaced.
The Court determines that defendants failed to furnish retroactive assisted living waiver benefits to plaintiffs with reasonable promptness under § 1396a(a)(8). As discussed in Section VI.A., supra, Ohio’s practice of providing prospective-only assisted living waiver benefits violates the retroactivity provision of § 1396a(a)(34). Therefore, to the extent defendants rely on their interpretation of the retroactivity provision to argue they complied with § 1396a(a)(8), their argument is without merit. In addition, while defendants processed plaintiffs’ application within the 90-day limit set forth in the federal regulation, plaintiffs are not challenging the timeliness of the eligibility determinations; rather, plaintiffs challenge the delay in the provision of retroactive assisted living waiver benefits to which they are entitled. As neither plaintiff has received retroactive assisted living waiver benefits “in or after the third month before the month” of their 2012 applications, defendants’ failure to provide such benefits violates the reasonable promptness requirement of § 1396a(a)(8). See Westside Mothers v. Olszewski, 454 F.3d 532, 540 (6th Cir. 2006) (“The regulations that implement [section 1396a(a)(8)] also indicate that what is required is a prompt determination of eligibility and a prompt payment to eligible individuals to enable them to obtain the necessary medical services.”) (citations omitted) (emphasis added). Summary judgment is therefore granted on plaintiffs’ reasonable promptness claim.
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VII. PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION Plaintiffs move for class certification under Fed. R. Civ. P. 23(a) and (b)(2). They seek
to represent a class consisting of “all Ohio individuals who meet the eligibility standards for the assisted living Medicaid waiver for the months occurring no earlier than three months prior to the month of application, but who are denied coverage under the assisted living Medicaid waiver for all or some of those months.” (Doc. 77 at 2). Defendants oppose the motion. They argue that the named plaintiffs are not typical of the class they seek to represent; the named plaintiffs are not adequate representatives of the class; plaintiffs cannot satisfy the numerosity prong of Rule 23(a); and the relief plaintiffs seek is barred by the Eleventh Amendment.
A. Standard for class certification. Rule 23 governs class certification and provides: One or more members of a class may sue . . . as representative parties on behalf of all members only if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a). In addition to the four prerequisites set forth in Rule 23(a), the proposed class must satisfy at least one of the three requirements set forth in Rule 23(b). Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2548 (2011); In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838, 850 (6th Cir. 2013). Plaintiffs rely on Rule 23(b)(2), which applies when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole. . . .” Fed. R. Civ. P. 23(b)(2). Plaintiffs bear the burden of satisfying the requirements for class certification under Rule 23. In re Whirlpool Corp., 722 F.3d at 851 (citing In re American Med. Sys., Inc., 75 F.3d 1069, 1079 (6th Cir. 1996)). The trial
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court has broad discretion in deciding whether to certify a class, id., and may certify the class if “after a rigorous analysis” it is satisfied that the prerequisites for class certification have been met. Dukes, 131 S.Ct. at 2551; General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 161 (1982).
B. Analysis 1. Numerosity
Rule 23(a)(1) requires that the class be “so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). There is no strict numerical test for determining numerosity. Daffin v. Ford Motor Co., 458 F.3d 549, 552 (6th Cir. 2006); In re American Med. Sys., 75 F.3d at 1079. See, e.g., Smith v. Ajax Magnethermic Corp., No. 4:02-cv-980, 2007 WL 3355080, at *2 (N.D. Ohio Nov. 7, 2007) (certifying class of 55 former employees where damages suffered by each member were relatively small, lessening possibility of litigation of individual claims). However, the “sheer number of potential litigants in a class, especially if it is more than several hundred, can be the only factor needed to satisfy [numerosity].” Bacon v. Honda of America Mfg., Inc., 370 F.3d 565, 570 (6th Cir. 2004). Only a “reasonable estimate or some evidence of the number of class members” is required. Bentley v. Honeywell Intern., Inc., 223 F.R.D. 471, 480 (S.D. Ohio 2004).
“The reason for [the impracticability] requirement is obvious. Only when joinder is impracticable is there a need for a class action device.” In re American Med. Sys., 75 F.3d at 1079 (quoting 1 Herbert B. Newberg & Alba Conte, Newberg on Class Actions, § 3.01, at 3-4 (3d ed. 1992)). Thus, “[t]he key to determining whether certification is appropriate under Rule 23(a)(1) rests on the impracticability of joinder.” Ledford ex rel. Epperson v. Colbert, No. 1:10cv-706, 2012 WL 1207211, at *3 (S.D. Ohio April 11, 2012) (citing In re American Med. Sys.,
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75 F.3d at 1079). “Numerous factors play into the impracticability of joinder, including ‘the size of the proposed class, geographic dispersion and financial resources of class members, and judicial economy.’” Id. (quoting Prater v. Ohio Educ. Ass’n, No. 2:04-cv-1077, 2008 WL 2566364, at *2 (S.D. Ohio June 26, 2008)).
Plaintiffs assert the numerosity requirement is met here because there are hundreds of people in the proposed class. (Doc. 77 at 9-11). In support of this assertion, plaintiffs present an “enrollment tracking list,” which is a tracking device used by defendants for identifying applicants for assisted living waiver services and enrollment of those applicants. See Doc. 91, Exs. V, AA. Plaintiffs present evidence that between February 4, 2014 and August 6, 2014, there were 211 applicants placed on the enrollment tracking list who were waiting for a Medicaid financial determination and who were later enrolled in the assisted living waiver program. See id.; Doc. 84, ¶ 5, Decl. of Kimberly A. Cannon. Plaintiffs also cite to the deposition testimony of Matthew Hobbs, the Chief of the Division of Community Living of the Ohio Department of Aging. (Doc. 89, Ex. 4, ¶ 2, Decl. of Matthew Hobbs). Mr. Hobbs estimated that at the time of his deposition in 2013, over 4,000 individuals were enrolled in Ohio’s assisted living waiver program. (Doc. 93, Ex. W). Data from 2014 shows enrollment ranged from 2,442 to 4,317 individuals. (Doc. 77, Ex. A).
Defendants contend that the evidence plaintiffs rely upon is misleading because it focuses on a single eligibility requirement for enrollment in the assisted living waiver program, i.e., financial eligibility, and ignores the remaining enrollment criteria. They argue that the enrollment tracking list is merely a workflow tool for the Ohio state agency responsible for determining the non-financial eligibility requirements of the assisted living waiver program and it does not demonstrate “when an individual met the eligibility requirements for enrollment on
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the [w]aiver.” (Doc. 105 at 9). Because the information from the enrollment tracking list can change at any time, defendants contend the list does not demonstrate when an individual was enrolled in the assisted living waiver program. Defendants also take issue with plaintiffs’ reliance on Mr. Hobbs’ deposition testimony. They argue that it does not establish when an applicant was enrolled in the waiver program and that many members of the proposed class could therefore be barred from bringing claims by the statute of limitations or res judicata. (Id. at 9-10).
The Court is not persuaded by defendants’ argument that the tracking list does not reflect the number of people in the proposed class because it does not show “when an individual met the eligibility requirements for enrollment on the waiver.” (Id. at 9). Although the tracking list does not show the date when an applicant was finally “enrolled” in the assisted living waiver program under defendants’ rules, plaintiffs do not rely on the date of enrollment to show numerosity. Rather, plaintiffs rely on the fact that applicants routinely face delays as a result of defendants’ process for determining eligibility for assisted living waiver benefits to demonstrate numerosity. The very nature of defendants’ enrollment process ensures there are gaps in coverage for all applicants for assisted living waiver benefits except in one instance: when all other non-financial eligibility criteria, including level of care assessment and service plan, are assessed on the date of or prior to the assessment of financial eligibility for assisted living waiver benefits. (Doc. 91-1, Ex. Z, Roberts Depo. at 21). These are the only applicants for whom the effective date for assisted living waiver benefits will be the same as the effective date for basic Medicaid. (Doc. 91-1, Ex. Z, Roberts Depo. at 21). Extrapolating from the tracking list, which provides a snapshot of those whose applications for assisted living waiver benefits are on hold pending further action by defendants, the Court is satisfied that the number of applicants who experience
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delays, and therefore gaps, in the provision of assisted living waiver benefits are sufficient such
that joinder is impracticable. See Senter, 532 F.2d at 523 (court may consider reasonable
inferences drawn from facts that a class is sufficiently numerous to make joinder impracticable).
The other evidence submitted by plaintiffs indicates that the number of individuals
enrolled in Ohio’s assisted living waiver program is in the thousands and defendants’ rules
forbidding retroactive coverage under the Medicaid assisted living waiver program apply
uniformly across the board.36 Importantly, the putative class members are elderly individuals
who by the nature of their advanced age have significant cognitive and/or physical limitations.
Given the declining health and limited financial resources of these individuals, filing lawsuits on
their own is impracticable. Ledford, 2012 WL 1207211, at *4. In addition, joinder of such
individuals in this lawsuit would be impractical. In a case involving a similar population of
Medicaid assisted living waiver individuals, this Court recognized that:
[T]he very delicate health of the proposed class members indicates how impractical joinder would be: individual members may be likely to move in or out of the class, as they can easily fall so ill as to require nursing home care, or even die. A suit would be constantly interrupted as new members were joined to the suit and other parties would necessarily be removed. Additionally, Defendant’s policy uniformly affects individuals throughout the state of Ohio. . . .
Id. at *4.
The Court therefore concludes that plaintiffs have satisfied the numerosity requirement of
Rule 23(a)(1).
2. Commonality
Rule 23(a)(2) mandates the existence of “questions of law or fact common to the class.”
Fed. R. Civ. P. 23(a)(2). “The commonality test is qualitative rather than quantitative” in that
36Insofar as defendants challenge plaintiffs’ reliance on Mr. Hobbs’ deposition testimony because many of these thousands of enrollees may be precluded from bringing claims, defendants do not explain this assertion. In any event, the Court is satisfied that even if some of the claims of proposed class members would be barred, the number of individuals in the assisted living waiver program is sufficient to meet the numerosity requirement.
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“there need be only a single issue common to all members of the class.” In re American Med. Sys., 75 F.3d at 1080 (quotation omitted).
The class-action was designed as an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only. Class relief is peculiarly appropriate when the issues involved are common to the class as a whole and when they turn on questions of law applicable in the same manner to each member of the class. For in such cases, the class-action device saves the resources of both the courts and the parties by permitting an issue potentially affecting every class member to be litigated in an economical fashion under Rule 23. Id. (quoting General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 155 (1982) (internal citations and quotations omitted)). Plaintiffs must show that class members have suffered the same injury to establish the commonality requirement of Rule 23(a). Dukes, 131 S.Ct. at 2551. “Their claims must depend upon a common contention . . . of such a nature that it is capable of classwide resolution – which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. “This inquiry focuses on whether a class action will generate common answers that are likely to drive resolution of the lawsuit.” In re Whirlpool Corp., 722 F.3d at 852 (citing Dukes, 131 S.Ct. at 2551). There are questions of law common to all of the proposed class members. All have been denied Medicaid coverage for assisted living services for time periods prior to their formal enrollment in the waiver program as a result of defendants’ regulations. The issue of law common to all class members is whether Ohio’s interpretation of the assisted living waiver statute as providing only prospective Medicaid benefits violates the federal provision mandating retroactive Medicaid “in or after the third month before the month” in which an individual made an application. Likewise, common questions of law exist as to whether Ohio’s delay in providing retroactive assisted living waiver benefits violates 1396a(a)(8), and whether
57

defendants’ notices which fail to specify eligibility for retroactive assisted living waiver benefits violate due process and 42 U.S.C. § 1396a(a)(3).
Resolution of plaintiffs’ claims will advance the litigation as a whole and affect each member of the class. A classwide proceeding will “generate common answers” as to whether defendants’ policies permitting only prospective assisted living waiver benefits violate 42 U.S.C. § 1396a(a)(34). Dukes, 131 S.Ct. at 2551; In re Whirlpool Corp., 722 F.3d at 852. Therefore, the Court finds the commonality requirement is satisfied.
3. Typicality Rule 23(a)(3) requires that “the claims or defenses of the representative parties [be] typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). A claim is typical if “it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if his or her claims are based on the same legal theory.” In re American Med. Sys., 75 F.3d at 1082 (quoting 1 Newberg, supra, § 3-13, at 3-76 (footnote omitted)). The typicality prerequisite “determines whether a sufficient relationship exists between the injury to the named plaintiff and the conduct affecting the class, so that the court may properly attribute a collective nature to the challenged conduct.” Id. “The premise of the typicality requirement is simply stated: as goes the claim of the named plaintiff, so go the claims of the class.” Sprague v. General Motors Corp., 133 F.3d 388, 399 (6th Cir. 1998) (holding that typicality is not established where resolution of a named plaintiff’s claim would not “necessarily have proved anybody else’s claim.”). Defendants argue that certification is inappropriate because plaintiffs’ claims are atypical of the putative class members. First, defendants assert that the named plaintiffs lack standing to pursue their claims and will therefore face “hurdles” not shared by the proposed class members.
58

(Doc. 105 at 5). Second, defendants argue that the named plaintiffs’ claims are not typical of the proposed class because neither plaintiff has a need for prospective relief; rather, plaintiff Hilleger is deceased and plaintiff Saunders is in a nursing care facility and is no longer receiving assisted living waiver benefits. Defendants further argue that because plaintiffs have no interest in prospective relief, they lack the incentive to pursue legal arguments necessary to protect the interests of the absent putative class members. Additionally, defendants maintain that plaintiffs’ claims for monetary damages are precluded by the Eleventh Amendment, which bars a retroactive award of monetary relief to plaintiffs. (Id. at 4-6, 8).
Defendants made these same arguments in connection with their motion for summary judgment. For the reasons previously set forth in this Order on the parties’ cross-motions for summary judgment, defendants’ arguments are unpersuasive. As explained above, the Eleventh Amendment poses no bar to plaintiffs’ claims for declaratory and injunctive relief, which are prospective in nature, see Quern, 440 U.S. at 337, and the named plaintiffs have standing to challenge the ongoing violations of federal law alleged in the amended complaint. Mrs. Hilleger’s § 1983 claims survive her death under Ohio law, and Mrs. Saunders’ claims are not mooted by her departure from an approved assisted living facility. To the extent defendants argue that plaintiffs do not represent the proposed class members because they did not meet the waiver eligibility requirements “until the date their basic Medicaid was determined” (Doc. 105 at 6), this argument is not well-taken. Defendants’ argument hinges on the validity of defendants’ eligibility requirements, which violate federal law as explained in the Court’s ruling on the summary judgment motions.
The third typicality challenge raised by defendants relates to the timeliness of plaintiffs’ claims. Defendants assert that because some of the putative class claims extends back in time to
59

2006 when the first assisted living waiver was approved for Ohio, some class members’ claims would be barred by the two-year statute of limitations governing § 1983 claims. Defendants note that the named plaintiffs filed their claims within the two-year statute of limitations, so their claims are not typical of the time-barred claims of proposed class members. Defendants further note that different waiver eligibility requirements existed prior to September 29, 2011, and they allege that plaintiffs lack the incentive to seek relief for the putative class members for whom different eligibility criteria applied. (Doc. 105 at 6).
“The existence of defenses against certain class members does not defeat typicality. Typical does not mean identical, and the typicality requirement is liberally construed.” Hendricks v. Total Quality Logistics, LLC, 292 F.R.D. 529, 542 (S.D. Ohio 2013) (internal citations and quotations omitted). Arguments similar to those raised by defendants have been repeatedly rejected by courts in this and other circuits. Id. (existence of judicial estoppel and statute of limitations defenses against putative class members did not destroy typicality). See also Boggs v. Divested Atomic Corp., 141 F.R.D. 58, 66 (S.D. Ohio 1991) (rejecting the defendants’ argument in support of denying class certification where the plaintiffs and the proposed class members’ claims would be subject to different defenses, such as a statute of limitations defense, because “the named plaintiffs ha[d] asserted claims both typical of the other class members, and subject to typical defenses.”); Ludwig v. Pilkington North America, Inc., No. 03C1086, 2003 WL 22478842, at *3 (N.D. Ill. Nov. 4, 2003) (holding that typicality was not destroyed where a statute of limitations defense was not peculiar to the named plaintiff). Though some proposed class members’ claims may be barred by the applicable two-year statute of
60

limitations,37 this does not present a basis for denying plaintiff’s class certification motion. In addition, while Ohio’s regulations may have changed over the years, defendants’ practice of providing prospective-only assisted living waiver benefits has been consistent.
Fourth, defendants argue that the claims of the named plaintiffs are not typical of those of any putative class members that may be barred by the doctrines of res judicata and/or collateral estoppel. (Doc. 105 at 6-7). Defendants do not explain how the potential for issue or claim preclusion affects the issue of typicality, and the Court is unaware of any authority supporting denial of a class certification motion on this ground. Cf. Thompson v. Jiffy Lube Intern., Inc., 250 F.R.D. 607, 624 (D. Kan. 2008) (denying motion to certify class for lack of typicality where the named plaintiff’s claim was likely barred by res judicata because she was a member of a previous settlement class involving the same defendant and similar claims); Wren v. Cigna Healthcare of Virginia, Inc., No. 7:05-cv-344, 2006 WL 344801, at *6 (W.D. Va. Feb. 15, 2006) (similarly holding that class certification was inappropriate where the named plaintiff’s claim was barred by res judicata because she would not be able to adequately represent the interests of the proposed class). There is no contention here that the named plaintiffs’ claims are precluded by res judicata or collateral estoppel such that their claims are atypical of those of the proposed class members. Therefore, plaintiffs’ motion will not be denied on this basis.
The claims of the named plaintiffs here are identical to those of the proposed class members.38 The claims stem from the same Ohio rules and practices that deny retroactive
37The Court notes that the statute of limitations on a putative class member’s claims is tolled from the timely filing of a class action complaint to the denial of the motion for class certification. See American Pipe & Constr. Co. v. Utah, 414 U.S. 538, 554 (1974). See also Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345, 354 (1983); Phipps v. Wal-Mart Stores, Inc., __ F.3d __, 2015 WL 4079441, at *4 (6th Cir. July 7, 2015). 38 The Court has not considered plaintiffs’ submission of affidavit evidence from putative class members in ruling on the motion for class certification. Therefore, defendants have not been prejudiced by plaintiffs’ submission of this evidence.
61

assisted living waiver coverage, fail to provide notice advising of the denial of retroactive waiver benefits, and fail to provide benefits with reasonable promptness as required by the Medicaid Act. Plaintiffs’ interests are aligned with those of the putative class, and the injunctive and declaratory relief sought will inure to the benefit of all class members. The Court concludes plaintiffs have established that the proposed class meets the typicality requirement of Rule 23(a)(3).
4. Adequacy of Representation Under Rule 23(a)(4), plaintiffs must demonstrate that “the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). The Sixth Circuit has “articulated two criteria for determining adequacy of representation: ‘1) the representative[s] must have common interests with unnamed members of the class, and 2) it must appear that the representatives will vigorously prosecute the interests of the class through qualified counsel.’” In re American Med. Sys., 75 F.3d at 1083 (quoting Senter, 532 F.2d at 525). “The adequate representation requirement overlaps with the typicality requirement because in the absence of typical claims, the class representative has no incentives to pursue the claims of the other class members.” Id. Defendants assert many of the same arguments to challenge plaintiffs’ ability to adequately represent the class as they did in connection with the typicality prong of Rule 23(a). See Doc. 105 at 4-8. For the reasons discussed above in connection with Rule 23(a)(3)’s typicality requirement, defendants’ challenges to the adequacy of the named plaintiffs as representatives of the proposed class are unpersuasive. The named plaintiffs’ interests are coextensive with those of the class. The named plaintiffs challenge defendants’ uniform policy and practice of denying retroactive assisted living waiver benefits to all who apply for such
62

benefits. In addition, there is no indication that plaintiffs’ interests are antagonistic to those of the putative class members. The Court concludes that plaintiffs will fairly and adequately protect the interests of the class.
5. Rule 23(b)(2) Criteria In addition to satisfying the criteria of Rule 23(a), plaintiffs must also demonstrate that their proposed class meets one of the requirements of Fed. R. Civ. P. 23(b). See Dukes, 131 S.Ct. at 2548; In re Whirlpool Corp., 722 F.3d at 850. Plaintiffs rely on Rule 23(b)(2), which requires that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). Plaintiffs assert they meet the criteria of Rule 23(b)(2) because the proposed class “has been subjected to a common set of practices for which [they] seek only injunctive and declaratory relief.” (Doc. 77 at 4). Plaintiffs explain that defendants’ “refusal to grant retroactive [assisted living waiver] eligibility affects all class members as well as the [n]amed [p]laintiffs” and that a single injunction and declaratory judgment will provide relief to each class member. (Id. at 17). Defendants do not challenge plaintiffs’ assertion that this matter meets the criteria of Rule 23(b)(2). The “key to the [Rule 23](b)(2) class is ‘the indivisible nature of the injunctive or declaratory remedy warranted – the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.’” Dukes, 131 S.Ct. at 2557 (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132 (2009)). Put simply, “Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not
63

authorize class certification when each individual member would be entitled to a different injunction or declaratory judgment against the defendant.” Id. at 2557.
This matter is appropriate for class certification under Rule 23(b)(2). All members of the class are affected by defendants’ systemic practice of denying retroactive benefits to all assisted living waiver beneficiaries. Additionally, plaintiffs seek a declaratory judgment that defendants are in violation of the Medicaid Act and the due process clause. Plaintiffs also seek injunctive relief ordering defendants to refrain from denying Medicaid assisted living waiver coverage to otherwise eligible plaintiffs for up to three months prior to the month of application and to modify their policies and practices to achieve this relief. The requested declaratory and injunctive relief will apply uniformly to all class members, regardless of the unique situation of any individual plaintiff. Accordingly, plaintiffs’ proposed class is appropriate for certification under Rule 23(b)(2). See Dozier, 2014 WL 5483008, at *24-25 (granting class certification under Rule 23(b)(2) where the plaintiffs, representing a class of Medicaid beneficiaries, sought uniform injunctive and declaratory relief).
6. Appointment of Class Counsel Plaintiffs additionally move the Court to certify their attorneys as class counsel under Fed. R. Civ. P. 23(g). The Court may appoint plaintiffs’ attorneys as class counsel only if they are deemed adequate under Rule 23(g)(1) and (4). Fed. R. Civ. P. 23(g)(2). In making this determination, the Court “must consider: (i) the work counsel has done in identifying or investigating potential claims in the action; (ii) counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (iii) counsel’s knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the class.”
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Fed. R. Civ. P. 23(g)(1)(A)(i)-(iv). In addition, “[c]lass counsel must fairly and adequately represent the interests of the class.” Fed. R. Civ. P. 23(g)(4).
Plaintiffs assert their counsel qualify for appointment as exemplified by counsel’s efforts in briefing plaintiffs’ motions for summary judgment and class certification. Plaintiffs contend counsel expended extensive time and resources to investigate and analyze their claims. Plaintiffs further assert that their attorneys have substantial experience in class action and complex litigation, as well as extensive knowledge of discrimination and benefits law. (Doc. 77 at 18). Plaintiffs support their argument with counsel’s affidavits and attestations regarding their litigation experience. See Docs. 84-88. Defendants do not dispute the adequacy of plaintiffs’ counsel.
The Court finds that the Rule 23(g)(1) factors support appointing plaintiffs’ attorneys as class counsel. First, the work performed by plaintiffs’ counsel before this Court, including their work on the instant motions for class certification and for summary judgment and at oral argument, demonstrates that they diligently investigated and analyzed the potential claims in this matter. Second, the affidavit evidence put forth by plaintiffs’ counsel demonstrates their experience in litigating class actions and other complex litigation in federal courts across the nation, including class actions involving thousands of Medicaid beneficiaries. Third, counsel’s affidavit evidence and their briefings before this Court establish that their knowledge of the federal and state laws at issue here is more than adequate. Fourth, the work of plaintiffs’ counsel to date indicates they have sufficient resources committed to this matter to vigorously advocate on behalf of the members of the proposed class. Finally, the work performed by plaintiffs’ counsel before this Court demonstrates beyond a doubt that counsel will fairly and adequately
65

represent the interests of the class in their prosecution of this lawsuit. See Fed. R. Civ. P. 23(g)(4).
For these reasons, the Court finds that plaintiffs’ counsel will fairly and adequately represent the interests of the class. The Court therefore grants plaintiffs’ motion to appoint their attorneys as class counsel. VIII. CONCLUSION
For the reasons stated above, plaintiffs’ motion for class certification and appointment of class counsel (Doc. 77) is GRANTED. Plaintiffs’ current counsel is hereby APPOINTED to serve as class counsel. The following class is certified:
All Ohio individuals who meet the eligibility standards for the assisted living Medicaid waiver for the months occurring no earlier than three months prior to the month of application, but who are denied coverage under the assisted living Medicaid waiver for all or some of those months. For the reasons discussed above, plaintiffs’ motion for summary judgment (Doc. 74) is GRANTED, and defendants’ motion for summary judgment (Doc. 89) is DENIED. The Court finds that Ohio’s regulations which prohibit assisted living waiver benefits for up to three months prior to the month of application for individuals who were eligible for coverage at the time those services were furnished violate the retroactivity provision of 42 U.S.C. § 1396a(a)(34). The Court also finds that defendants’ failure to notify applicants for assisted living waiver benefits that they are being denied coverage for months in which they met the eligibility requirements and the reasons for such action violates 42 U.S.C. § 1396a(a)(3) and the Due Process Clause. The Court further finds that defendants’ failure to provide plaintiffs and the class with retroactive Medicaid assisted living waiver coverage to which they are otherwise entitled violates the reasonable promptness requirement of 42 U.S.C. § 1396a(a)(8).
66

Defendants are hereby enjoined: (1) from denying plaintiffs and the class eligibility for Medicaid assisted living waiver benefits for months in which they are determined to meet eligibility standards, for as early as three months prior to the month in which application is made, and to modify their policies and practices to achieve this relief; and (2) to identify and provide written notice to plaintiffs and all class members that their Medicaid assisted living waiver coverage will begin on the first day of the month in which they meet all eligibility criteria, up to three months prior to the month of application, with a notice advising them of the state administrative procedure, compliant with due process requirements, available if they desire to have defendants determine whether or not they may be eligible for additional days of Medicaid assisted living waiver coverage.
IT IS SO ORDERED.

Date: 9/1/2015

s/Karen L. Litkovitz Karen L. Litkovitz United States Magistrate Judge

67

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

KATHRYN A. PRICE, et al., Plaintiffs,
vs.

Case No . I: 13-cv-74 Litkovitz, M.J.

MEDICAID DIRECTOR, OFFICE OF MEDICAL ASSISTANCE, et al.,
Defendants.

ORDER

I. Introduction

On September 1, 2015, the Court granted plaintiffs' motion for summary judgment and
denied defendants' motion for summary judgment, finding in relevant part that Ohio 's
regulations which prohibit Medicaid assisted living waiver benefits for up to three months prior
to the month of application for individuals who were eligible for coverage at the time those
services were furnished violate the retroactivity provision of 42 U.S.C. § 1396a(a)(34). (See
Doc. 121 ("the Order") at 66). The Court also granted plaintiffs' motion for class certification
and appointment of class counsel and certified the following class:
All Ohio individuals who meet the eligibility standards for the assisted living Medicaid waiver for the months occurring no earlier than three months prior to the month of application, but who are denied coverage under the assisted living Medicaid waiver for all or some of those months.
(ld.). Further, the Court enjoined defendants:
(1) from denying plaintiffs and the class eligibility for Medicaid assisted living waiver benefits for months in which they are determined to meet eligibility standards, for as early as three months prior to the month in which application is made, and to modify their policies and practices to achieve this relief; and (2) to identify and provide written notice to plaintiffs and all class members that their Medicaid assisted living waiver coverage will begin on the first day of the month in which they meet all eligibility criteria, up to three months prior to the month of application, with a notice advising them of the state administrative procedure, compliant with due process requirements, available if they desire to have defendants determine whether or not they may be eligible for additional days of Medicaid assisted living waiver coverage.

(!d. at 67). Defendants appealed. (See Doc. 123). This matter is now before the Court on plaintiffs' motion for an indicative ruling to amend the class definition (Doc. 137), defendants' response in opposition (Doc. 138), and plaintiffs' reply (Doc. 139). II. Legal Standard
The filing of an appeal "divests the district court of its control over those aspects of the case involved in the appeal." Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982). "The rationale behind divestiture ofjurisdiction of the district court once a notice of appeal is filed is that two different courts should not have simultaneous jurisdiction over the same matter, and the district court should not alter the scope of the judgment which is before an appellate court." Anglers ofthe AU Sable v. U.S. Forest Serv., 590 F. Supp.2d 877, 880 (E.D. Mich. 2008) (citing Advey v. Celotex Corp., 962 F.2d 1177, 1180 (6th Cir. 1992)). "Under [Federal Rule of Civil Procedure] 62.1 , a district court may make certain indicative rulings on motions that the court lacks authority to grant because of a pending appeal. " Dice Corp. v. Bold Techs., 556 F. App'x 378, 382 (6th Cir. 2014). A district court may defer consideration of the motion, deny the motion, state that it would grant the motion if the appellate court remanded for that purpose, or state that the motion raises a substantial issue. Fed. R. Civ. P. 62.l(a).
"The court may correct a .. . mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record." Fed. R. Civ. P. 60(a). "A district court abuses its discretion under Rule 60(a) if it fails to correct a judgment that is 'at odds with what the court intended to accomplish."' Richards v. Ohio Civil Serv. Emps. Ass 'n, 205 F. App ' x 347, 355 (6th Cir. 2006) (quoting In re Walter, 282 F.3d 434, 441 (6th Cir. 2002)). " [A] court properly acts under Rule 60(a) when it is necessary to 'correct mi stakes or oversights that cause the judgment to fail to reflect what was intended at the time of trial."' In re Walter, 282 F.3d at 440-41 (quoting Vaughter v. E. Air Lines, Inc., 817 F.2d 685, 689 (11th Cir. 1987)). See also
2

Kokomo Tube Co. v. Day ton Equip. Servs. Co. , 123 F.3d 616, 623 (7th Cir. 1997) ("In deciding whether Rule 60(a) applies, we have to distinguish between changes that implement the result intended by the court at the time the order was entered and changes that alter the original meaning to correct a legal or factual error.") (quotation marks and citation omitted), rev 'don other grounds by McCarter v. Ret. Plan for Dist. Managers ofAm. Family Ins. Grp., 540 F.3d 649, 653 (7th Cir. 2008). III. Discussion
Plaintiffs move for an indicative ruling to clarify that the certified class is limited to persons with claims accruing on or after February I, 2011. (Doc. 137 at 2). Plaintiffs indicate that defendants have argued in the Sixth Circuit "that the certified class definition is overbroad because it does not expressly incorporate the two-year statute of limitations in [Ohio Rev. Code] § 2305.10." (!d.). Plaintiffs assert that they agree with defendants and "have always maintained that the class is limited to claims accruing on or after February 1, 2011." (!d.). Plaintiffs contend that an indicative ruling "will save judicial resources by allowing the Court of Appeals to reduce time on this issue where both parties agree that the class definition should be limited by the two-year statute of limitations." (/d. at 3).
Defendants respond that they argued months ago in their response to plaintiffs' motion for class certification that the named plaintiffs who had filed within the limitations period were inadequate representatives for putative class members who would be barred by the statute of limitations. (Doc. 13 8 at 1). Defendants argue that at that time, plaintiffs assured the Court "that they would diligently pursue the claims of the whole class over which they sought certification," but that class counsel now "seeks to abandon a large chunk of the class that they represent." (!d.). Defendants contend that plaintiffs seek "piecemeal litigation," not judicial efficiency. (!d. at 1-2). Defendants argue that plaintiffs can achieve judicial economy " by simply agreeing with
3

any of Defendants' arguments in their merit brief in the appellate court." (!d. at 2). Defendants contend that plaintiffs have not "always maintained" that the class is limited to claims within the limitations period. (!d.). In support of this contention, defendants assert that when plaintiffs "sought, at oral argument, to amend the class-wide relief that they seek, they did not include any limitation to individuals who are not time-barred." (/d.) . Defendants argue that "[a]n indicative ruling would only waste time" and that "[d]enying or deferring ruling on Plaintiffs' motion would best serve judicial economy by not disrupting appellate proceedings." (!d. at 3).
In reply, plaintiffs argue that defendants' response "suggests inaccurately that the class definition can be amended expeditiously through the appellate process," when defendants' opening appellate brief shows that defendants "wish to keep an otherwise undisputed legal issue alive in the Court of Appeals to create fodder for their argument that the summary judgment order represents judicial overreach." (Doc. 139 at 2). Plaintiffs quote numerous passages from defendants' appellate brief in which defendants argue that the Court's Order certified an overbroad class extending back to 2006. (See id. at 2-4). Plaintiffs argue that entering an indicative ruling would allow the Sixth Circuit to determine whether to remand the case for amendment of the class definition. (!d. at 4). Plaintiffs contend that if the Court enters an indicative ruling, the Sixth Circuit "would then be in the best position to determine questions of appellate judicial economy, and have the opportunity to consider whether amending the class definition will allow for a more focused appellate review." (!d.). Plaintiffs argue that the statute of limitations issue that defendants argue on appeal was never actively litigated in the parties' cross-motions for summary judgment. (!d. at 5). Instead, plaintiffs contend that defendants raised the issue only in relation to whether the particular named plaintiffs would be adequate class representatives, but never asked "this Court to rule on the (non-disputed) question of the statute of limitations." (!d.). Plaintiffs assert that their proposed class definition should have
4

included a time deadline and the absence of such a deadline was "an oversight that can easily be rectified through the granting of Plaintiffs' motion." (!d.).
Here, in reviewing the record, the Court notes that in their reply to defendants' opposition to the motion for class certification, plaintiffs agreed with defendants that the applicable statute oflimitations in this case is two years. (See Doc. Ill at 12). Further, at oral argument on the cross-motions for summary judgment and the motion for class certification, plaintiffs stated: " [W]e filed this action on February 1, 2013 , so we believe the statute of limitations goes back two years to February 1, 20 11." (Doc. 135 at I 06). Given this record, the Court find s well-taken plaintiffs' argument that the omission of a limitations deadline in the proposed class definition was an oversight. This oversight is correctable under Rule 60(a) because it is at odds with the intended class definition. See Fed. R. Civ. P. 60(a); In re Walter, 282 F.3d at 440-41.
Accordingly, if the Sixth Circuit remanded this case pursuant to Rule 62.1, the Court WOULD GRANT plaintiffs' motion for relief under Rule 60(a) and WOULD ENTER an amended order containing the following class certification (additions in italics):
All Ohio individuals who, on or after February I, 2011 , meet the eligibility standards for the assisted living Medicaid waiver for the months occurring no earlier than three months prior to the month of application, but who are denied coverage under the assisted living Medicaid waiver for all or some of those months.
IT IS SO ORDERED.

Date: ~;Lwl/?.41/;

~X~ Karen L. Litk~vit~
United States Magistrate Judge

5

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

KATHRYN A. PRICE, et al., Plaintiffs,

Case No. 1:13-cv-74 Litkovitz, M.J.

vs.

MEDICAID DIRECTOR, OFFICE OF MEDICAL ASSISTANCE, et al.,
Defendants.

ORDER

I. INTRODUCTION

The State of Ohio’s Medicaid assisted living waiver program pays for home and

community-based services provided to qualified low income, elderly individuals who otherwise

would require care in an institutional or nursing home environment. The named plaintiffs in this case, Betty Hilleger and Geraldine A. Saunders,1 applied for assisted living waiver benefits

under the Ohio program. Both were found eligible for assisted living waiver benefits. However,

they were denied retroactive assisted living waiver benefits because Ohio provides only

prospective coverage from the date an individual is officially “enrolled” in the assisted living

waiver program.

Plaintiffs allege that defendants, state officials with jurisdiction over Ohio’s Medicaid

assisted living waiver program, violated federal law by denying them retroactive assisted living

waiver benefits for up to three months prior to their applications. Plaintiffs bring this action

under 42 U.S.C. § 1983 on behalf of themselves and a putative class they seek to represent

challenging Ohio’s administration of the assisted living waiver program as violative of the

1 The term “plaintiffs” as used herein refers to Geraldine A. Saunders and the late Betty Hilleger; however, the lawsuit was filed by Kathryn A. Price, in her capacity as next friend and attorney-in-fact for Geraldine Saunders, and by Marilyn A. Wenman, in her capacity as Executor for the Estate of Betty Hilleger. See Doc. 56, First Am. Complaint.

Medicaid Act, 42 U.S.C. § 1396a et seq., and the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
This matter is before the Court on the parties’ cross-motions for summary judgment (Docs. 74, 89), their respective memoranda in opposition (Docs. 102, 104), their reply memoranda (Docs. 112, 113), and their written responses to the Court’s pre-oral argument questions (Docs. 119, 120).2 This matter is also before the Court on plaintiffs’ motion for class certification and appointment of class counsel (Doc. 77), defendants’ memorandum in opposition (Doc. 105), and plaintiffs’ reply memorandum (Doc. 111). Where the resolution of a summary judgment motion will result in a more efficient resolution of the class certification motion, the Court within its discretion may resolve the summary judgment motion prior to assessing the merits of class certification. Lee v. Javitch, Block & Rathbone, LLP, 522 F. Supp.2d 945, 947 (S.D. Ohio 2007) (citing Thompson v. County of Medina, Ohio, 29 F.3d 238, 240-41 (6th Cir. 1994)). Because the capacity of the named plaintiffs to represent the class depends on whether their own claims are barred, as argued by defendants on summary judgment, the Court chooses to resolve the parties’ cross-motions for summary judgment prior to addressing plaintiffs’ class certification motion. II. BACKGROUND
Medicaid is a joint federal-state program that provides health care benefits to low-income disabled, elderly, and other qualifying individuals. 42 U.S.C. § 1396 et seq. The Medicaid program provides federal financial assistance to States that choose to participate in the program. State plans for medical assistance must comply with the detailed requirements of 42 U.S.C. §
2 The Court heard oral argument on the pending motions on April 28, 2015.
2

1396a(a) to be approved for federal funding. Ohio Dept. of Mental Retardation and Dev. Disabilities v. U.S. Dept. of Health and Human Servs., 761 F.2d 1187, 1188 (6th Cir. 1985).
Participation by a State in the Medicaid program is optional; however, once a State chooses to participate it must adopt a plan that conforms to the requirements set forth in the Medicaid Act and its implementing regulations. Harris v. McRae, 448 U.S. 297, 301 (1980). Among these requirements is that the State provide certain mandatory medical services. Id. See also Parents League for Effective Autism Servs. v. Jones-Kelley, 565 F. Supp.2d 905, 911 (S.D. Ohio 2008) (citing 42 U.S.C. § 1396d(a)(1)-(28) (setting forth the various required services)). A State may also elect to provide optional Medicaid services to qualified individuals, which once offered become part of the State plan and must comport with federal law. Bryson v. Shumway, 308 F.3d 79, 89 (1st Cir. 2002) (“Once the [optional] waiver plan is created and approved, it becomes part of the state plan and therefore subject to federal law.”); Doe 1-13 By and Through Doe, Sr. 1-13 v. Chiles, 136 F.3d 709, 721 (11th Cir. 1998) (“[W]hen a state elects to provide an optional service, that service becomes part of the state Medicaid plan and is subject to the requirements of federal law.”); Weaver v. Reagen, 886 F.2d 194, 197 (8th Cir. 1989) (“Once a state chooses to offer such optional services it is bound to act in compliance with the [Medicaid] Act and the applicable regulations in the implementation of those services.”). Accord Eder v. Beal, 609 F.2d 695, 701-02 (3d Cir. 1979); Dozier v. Haveman, No. 14-12455, 2014 WL 5480815, at *6 (E.D. Mich. Oct. 29, 2014).
Assisted living waiver services are not mandatorily-covered services under federal Medicaid law. Rather, the Medicaid Act permits States to apply for a Medicaid Home and Community-Based Services (HCBS) waiver (commonly termed an “HCBS waiver”) to provide assisted living waiver services to individuals as an alternative to more expensive institutional or
3

nursing home care. 42 U.S.C. § 1396n(c). In an HCBS waiver program, the United States
Department of Health and Human Services “waives” certain statutory requirements of the
Medicaid Act. Id. “Section 1915(d) of the Act permits States to offer, under a waiver of
statutory requirements, home and community-based services not otherwise available under
Medicaid to individuals age 65 or older, in exchange for accepting an aggregate limit on the
amount of expenditures for which they claim FFP [Federal Financial Participation] for certain
services furnished to these individuals.” 42 C.F.R. § 441.350. These home and community-
based services may include: (1) case management services; (2) homemaker services; (3) home
health aide services; (4) personal care services; (5) adult day health services; (6) habilitation
services; (7) respite care services; and (8) other medical and social services requested by the Medicaid agency and approved by the Centers for Medicare and Medicaid Services (CMS),3
which will contribute to the health and well-being of individuals and their ability to reside in a
community-based care setting. See 42 U.S.C. § 1396n(c)(4)(B). The Medicaid assisted living
waiver pays for supportive services, but not room and board in a residential care facility. 42
U.S.C. § 1396n(c)(1). Assisted living waiver services are provided pursuant to a written plan of care4 to individuals who, but for such services, would require the level of care provided in a
hospital or nursing facility. Id.
The Ohio Department of Medicaid (ODM) administers the Medicaid program for the
State of Ohio and offers assisted living waiver services through an HCBS waiver. Ohio’s
3 CMS is the federal agency that administers the Medicaid program. See Rosen v. Goetz, 410 F.3d 919, 927 (6th Cir. 2005). “The Secretary of the Department of Health and Human Services (‘Secretary’) administers the Act . . ., but has delegated to the regional administrator for the Centers for Medicare and Medicaid Services (‘CMS’) the responsibility of reviewing in the first instance state plans for compliance with the provisions of the Act, see 42 C.F.R. § 430.15(b). The Secretary also requires the submission of state plan amendments (‘SPAs’) for certain changes to a state plan, which CMS again reviews in the first instance for compliance with the Act. See 42 C.F.R. § 430.12(c).” Arc of California v. Douglas, 757 F.3d 975, 980 (9th Cir. 2014) (internal citation omitted). 4 The terms “plan of care” and “service plan” are used interchangeably throughout this Order.
4

assisted living waiver program provides supportive services – such as assistance with bathing,
mobility, and dressing – to Medicaid-eligible individuals whose needs qualify them for
intermediate or skilled level of care coverage of nursing home or institutional care services.5
The Ohio Department of Aging (ODA)6 conducts the daily operations of the waiver program.
ODA’s designee, PASSPORT Administrative Agencies, determines the non-financial eligibility
requirements of the waiver program (i.e., level of care) and develops the individual’s plan of
care, while the county departments of job and family services determine the financial eligibility
requirements of the waiver program. Ohio Admin. Code 173-38-03. To be eligible for the
assisted living waiver program, an individual must meet, inter alia, the following requirements:
(1) have a need for intermediate or skilled level of care;
(2) reside in a residential care facility certified by ODA; and
(3) be eligible for Medicaid as determined by the county department of job and family services.
Ohio Admin. Code 5160-33-03.7 Ohio also requires that individuals have a “plan of care” or
“service plan” 8 that specifies the types of services the individual will receive under the assisted
5 Ohio defines “assisted living HCBS waiver” as “the medicaid program that serves individuals residing in licensed residential care facilities that are certified by ODA [Ohio Department of Aging] and enrolled on the waiver who would otherwise receive services in a nursing facility if the waiver program were not available.” Ohio Admin. Code 5160-33-02(D). “Assisted living service” is defined as “a service that promotes aging in place by supporting a consumer’s independence, choice, and privacy through the provision of one or more components of the service which are a personal care service, a supportive service, an on-duty response service, coordination of meals, social and recreational programming, a non-medical transportation service, and a nursing service.” Ohio Admin. Code 173-39-02.16(A). 6 The named defendants, John McCarthy, the Director of ODM, and Bonnie Kantor-Berman, the Director of ODA, are sued in their official capacities. (Doc. 56). The term “defendants” and the “State of Ohio” are used interchangeably herein. 7 The other eligibility requirements set forth in Ohio Admin. Code 5160-33-03 do not impact the effective date of waiver services at issue in this case. They include the following requirements:
•If the individual requires skilled nursing care beyond supervision of special diets, application of dressings, or administration of medication, it must be provided in accordance with rule 3701-1759.1 of the Administrative Code.
5

living waiver program. See Ohio Admin. Code 5160-33-02(V); Ohio Admin. Code 5160-33-
06(C); Ohio Admin. Code 173-39-01(B)(22); Ohio Admin. Code 173-39-02.16.
Ohio regulations permit only prospective coverage for assisted living waiver services. If
an individual is determined eligible for Medicaid assisted living waiver services, Ohio
regulations state that the Medicaid waiver program “enrollment date,” i.e., the effective date of
coverage, is determined by ODA’s designee and shall be the latest date that all of the following
conditions are met: (i) The individual’s basic medicaid effective date;9
(ii) The date that the individual meets the level of care requirements to participate in the medicaid waiver program;
(iii) The date that the individual meets all the medicaid waiver program requirements listed in rule 5160-33-03 of the Administrative Code;
•The cost of the twelve-month service plan does not exceed the cost limit in effect for the program that is based on the maximum per-diem rate for assisted living services plus the maximum amount authorized for community transition services. •The individual must have the ability to make room and board payments calculated at the current supplemental security income (SSI) federal benefit level minus fifty dollars. •The individual is age twenty-one or older at the time of enrollment. •The assisted living HCBS waiver has not reached the centers for medicare and medicaid services (CMS) authorized limit of participants for the current year. •The individual’s health related needs, as determined by the PASSPORT administrative agency, can be safely met in a RCF [residential care facility] as described in paragraph (B)(3) of this rule. Ohio Admin. Code 5160-33-03(B). 8 “Service Plan” is defined as “a written, person centered plan between the consumer, the consumer’s case manager at the PAA [PASSPORT Administrative Agency] and, as applicable, the consumer’s caregiver(s). The service plan specifies the services that are provided to the consumer, regardless of funding source, to address the consumer’s individual care needs as identified in the consumer’s assessment.” Ohio Admin. Code 5160-33-02(V). 9 Ohio defines “basic medicaid effective date” as “the date that an individual is eligible to receive services under the medicaid state plan. . . .” Ohio Admin. Code 173-38-03(E)(1).
6

(iv) The date that the individual has a service plan that is approved by ODA’s designee and that includes at least one medicaid waiver service; and, (v) The date that the individual resides in an ODA-certified residential care facility in an ODA-approved living unit. Ohio Admin. Code 173-38-03(C)(1)(b). The “medicaid waiver program enrollment date for the medicaid-funded component of the assisted living program may differ from the basic medicaid effective date.” Ohio Admin. Code 173-38-03(C)(1)(d). Ohio will not pay for supportive services rendered before ODA’s designee determines the Medicaid waiver enrollment date. Ohio Admin. Code 173-38-03(C)(1)(c). Ohio Admin. Code 173-38-03 was amended effective March 1, 2014, to change the effective date of enrollment to the latest date the individual met all the eligibility requirements for the assisted living waiver. Previously, at the time plaintiffs filed this lawsuit, the regulations based the enrollment date on the latter of: (1) the date that the ODA’s designee determined the non-financial criteria were met; (2) the date that the county department of jobs and family services determined the financial criteria were met for basic Medicaid; or (3) the date the applicant became a resident of a qualified residential care facility. See 2014 Oh. Reg. Text 344942 (Feb. 18, 2014) (former Ohio Admin. Code 173-38-03). In other words, the effective date of coverage could not precede the actual date the determination of eligibility was physically processed (i.e., entered into the computer system) by either the ODA’s designee or the county department of jobs and family services. Although the March 2014 amendment results in an earlier effective date for assisted living waiver benefits, coverage for assisted living waiver benefits remains prospective only. Coverage cannot begin before the date the last of the five requirements set forth in Ohio Admin. Code 173-38-03(C)(1)(b) is met, such as the date on which the ODA’s designee approves the service plan.
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III. RETROACTIVE COVERAGE UNDER FEDERAL MEDICAID LAW
Plaintiffs allege that defendants improperly denied them retroactive Medicaid assisted
living waiver benefits for up to three months prior to their applications in violation of federal
law. Plaintiffs allege that defendants have administered the Ohio Medicaid program to provide
prospective assisted living waiver services only from the date of “enrollment” in violation of the
Medicaid Act, 42 U.S.C. § 1396a et seq.
The Medicaid Act requires that a state plan for medical assistance:
provide that in the case of any individual who has been determined to be eligible for medical assistance under the plan, such assistance will be made available to him for care and services included under the plan and furnished in or after the third month before the month in which he made application (or application was made on his behalf in the case of a deceased individual) for such assistance if such individual was (or upon application would have been) eligible for such assistance at the time such care and services were furnished.
42 U.S.C. § 1396a(a)(34) (emphasis added). The Act defines “medical assistance” as “payment
of part or all of the cost of the [covered] care and services . . . (if provided in or after the third
month before the month in which the recipient makes application for assistance . . .) for
individuals.” 42 U.S.C. § 1396d(a). States are required “to make medical assistance available
for covered services provided to Medicaid recipients within the three months prior to the month
in which the recipient applied for Medicaid (known as the retroactive-coverage period), provided
that the recipient would have been eligible for Medicaid at the time the services were rendered.”
Schott v. Olszewski, 401 F.3d 682, 686 (6th Cir. 2005) (citing 42 U.S.C. § 1396a(a)(34)). The
federal regulation governing retroactive coverage provides:
The agency must make eligibility for Medicaid effective no later than the third month before the month of application if the individual –
(1) Received Medicaid services, at any time during that period, of a type covered under the plan; and
8

(2) Would have been eligible for Medicaid at the time he received the services if he had applied (or someone had applied for him), regardless of whether the individual is alive when application for Medicaid is made. 42 C.F.R. § 435.915(a). IV. THE CLAIMS OF THE NAMED PLAINTIFFS A. Betty Hilleger In 2008, when plaintiff Betty Hilleger was no longer able to live independently in her own home, she began living in an Ohio assisted living facility. She suffered from dementia, congestive heart failure, diabetes, and arthritis; she needed help bathing, dressing and walking; and she was susceptible to falling. She also needed assistance with both remembering to take and actually taking her medication. Mrs. Hilleger paid approximately $4,300 per month (the private pay rate) for room and board and assisted living services. In 2012, after living for four years in the assisted living facility, Mrs. Hilleger had spent her life savings below the Ohio Medicaid asset limit of $1,500. See Ohio Admin. Code § 5160:1-3-05.1(B)(10)(a) ($1,500 limit for persons without spouses). On October 19, 2012, Mrs. Hilleger filed an application for the Ohio assisted living waiver program. Without the assisted living waiver, Mrs. Hilleger would have had to move into a nursing facility, but with the assisted living waiver she could remain in her familiar and less institutional assisted living setting. On November 6, 2012, defendant ODA’s waiver designee – the Council on Aging of Southwestern Ohio – assessed Mrs. Hilleger’s need for care, developed her service plan, and determined that Mrs. Hilleger met the level of care requirements (i.e., would require the level of care provided in a hospital or nursing facility). Mrs. Hilleger’s financial eligibility remained to be determined. On January 3, 2013, defendant ODM’s financial designee – the Hamilton County Department of Job and Family
9

Services – determined that Mrs. Hilleger met the financial eligibility standards and was eligible for basic Medicaid as of October 1, 2012.10 However, it deferred to ODA’s waiver designee to
determine the start date of assisted living waiver coverage. ODA’s designee issued a notice that
initiated assisted living waiver coverage effective January 1, 2013, the first day of the month that
the county department of job and family services determined Mrs. Hilleger’s financial eligibility
under the version of Ohio Admin. Code 173-38-03 in effect at the time. Mrs. Hilleger’s monthly
financial responsibility was set at $660 for room and board and $1,725 for services, with the
Ohio Medicaid program to cover the remaining service expenses.
Although Mrs. Hilleger met Ohio’s Medicaid financial eligibility standards effective
October 1, 2012, her assisted living waiver coverage did not begin until January 1, 2013, based
on the Ohio Medicaid rules in effect at the time. While Mrs. Hilleger received retroactive basic Medicaid back to October 1 – a total of 92 days11 – she did not receive 92 days of assisted living
waiver services. As Mrs. Hilleger’s assets had been spent down below $1,500, she was left with
assisted living bills that she could not afford. To prevent the possibility of Mrs. Hilleger’s eviction for nonpayment,12 Mrs. Hilleger’s daughters paid the assisted living facility $4,085.22 from their own funds.13
10 A state agency may make Medicaid eligibility effective on the first day of a month if the individual was eligible at any time during that month. 42 C.F.R. § 435.915(b). Ohio has adopted the “first day of the month” rule and has opted to begin Medicaid coverage the first day of the month if that individual meets all eligibility requirements. Ohio Admin. Code 5160:1-1-51(K)(1)(b). Thus, although Mrs. Hilleger applied for Medicaid on October 19, 2012, she was determined to be eligible for basic Medicaid effective October 1, 2012. (Doc. 89, Ex. 10). 11 The 92 days cover October (31 days), November (30 days), and December (31 days). 12 See Ohio Rev. Code § 3721.13(A)(30) (right of residential care facility to evict for nonpayment). 13 Under the newly revised regulations implemented in March 2014, the gap in assisted living waiver coverage would have been reduced to 37 days, from October 1, 2012 through November 6, 2012 – the time between the date on which Mrs. Hilleger met the financial eligibility requirements and the date on which her service plan was approved.
10

Mrs. Hilleger and her authorized representatives were notified of Mrs. Hilleger’s date of enrollment in the Medicaid assisted living waiver program, her basic Medicaid effective date, and her patient liability amount. The notice also informed Mrs. Hilleger and her authorized representatives that she could request a state hearing to challenge the determinations. Neither Mrs. Hilleger nor her authorized representatives requested a state hearing challenging Mrs. Hilleger’s date of enrollment in the assisted living waiver program.
Mrs. Hilleger died on September 19, 2013. On October 28, 2013, Kathryn Price was appointed the executor of Mrs. Hilleger’s estate.
B. Geraldine Saunders On June 25, 2012, named plaintiff Geraldine Saunders moved from a nursing home to an ODA certified assisted living facility in Ironton, Ohio. Mrs. Saunders could no longer live safely on her own: she had stress fractures and she suffered from increasing dementia and incontinence. She required a walker or wheelchair for mobility. That same date, Mrs. Saunders applied for Ohio Medicaid assisted living waiver benefits; ODA’s designee completed Mrs. Saunders’ level of care assessment; and ODA’s designee developed her initial plan of care at the nursing home where she was then residing. Because Mrs. Saunders had moved to an ODA certified assisted living facility, ODA’s designee contacted Mrs. Saunders’ doctor and received verbal approval for her level of care on June 26, 2012. On July 18, 2012, the county department of job and family services determined that Mrs. Saunders met the financial criteria for basic Medicaid. Defendants represent that her effective date for basic Medicaid was June 1, 2012.14 (Doc. 120 at 4). The effective date for the assisted
14 Although a state hearing decision indicates that Mrs. Saunders was resource ineligible for Medicaid in June 2012, which would make her eligibility date for basic Medicaid July 1, 2012, defendants have represented to the Court that their records show Mrs. Saunders was eligible for basic Medicaid on June 1, 2012. (Doc. 120 at 4). It is undisputed that Mrs. Saunders was approved for the assisted living waiver program effective July 18, 2012.
11

living waiver program, however, was July 18, 2012 – the date that the county department of job and family services determined her basic Medicaid eligibility in accordance with then-existing Ohio Medicaid rules.15 As a result, Mrs. Saunders owed the assisted living facility $2,292 for the uncovered period from July 1 to July 18, 2012. (Doc. 80, Price Decl., ¶¶ 3-4).
Mrs. Saunders and her authorized representatives were notified of Mrs. Saunders’ date of enrollment in the assisted living waiver program.16 The notice also informed Mrs. Saunders and her authorized representatives that she could request a state hearing to challenge this determination. Mrs. Saunders and her authorized representatives did not request a state hearing regarding the effective date of her eligibility for assisted living waiver benefits. However, they subsequently requested a hearing seeking reimbursement for patient liability in the amount of $2,292, which Mrs. Saunders’ daughter paid to the assisted living facility to prevent the facility from evicting Mrs. Saunders for nonpayment. Mrs. Saunders’ daughter paid the $2,292 herself in order to ensure Mrs. Saunders’ continued residence in the assisted living facility and to prevent her from returning to the nursing home. Id.
On December 11, 2012, Mrs. Saunders was transferred from the assisted living facility to a nursing home. On February 28, 2013, Mrs. Saunders was disenrolled from the assisted living waiver program because she had been in the nursing home since December 11, 2012. V. DEFENDANTS’ ASSERTED DEFENSES
Defendants raise several defenses that they contend bar plaintiffs’ recovery in this case. Defendants allege that the Eleventh Amendment bars plaintiffs’ claims seeking retroactive relief.
15 Under the newly revised regulations implemented in March 2014, Mrs. Saunders enrollment date could have been effective on June 25, 2012, the date her service plan was approved, if all other eligibility requirements were met. 16 The notice is somewhat confusing and states that assisted living waiver benefits “start 08/02/2012. You will get benefits for 07/2012, and each month after that.” (Doc. 89, Ex. 10, Plaintiffs’ Admns. Ex. B).
12

They also allege that neither plaintiff has standing to obtain prospective injunctive or declaratory relief. Defendants further contend that plaintiff Hilleger’s § 1983 claims do not survive her death and plaintiff Saunders’ § 1983 claims are moot. As these issues are potentially dispositive, the Court will address them before reaching the merits of plaintiffs’ claims.
A. Eleventh Amendment Generally, the Eleventh Amendment to the United States Constitution bars suit against a State or its agencies or departments in federal court regardless of the nature of the relief sought. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 58 (1996); Pennhurst State School v. Halderman, 465 U.S. 89, 100 (1984); Alabama v. Pugh, 438 U.S. 781, 782 (1978); Edelman v. Jordan, 415 U.S. 651, 663 (1974). An exception to the Eleventh Amendment bar prohibiting suit in federal court against a State applies where the plaintiff seeks prospective injunctive relief to compel state officials to comply with federal law. See Ex parte Young, 209 U.S. 123 (1908). See also S & M Brands, Inc. v. Cooper, 527 F.3d 500, 507 (6th Cir. 2008). Under Ex parte Young, “a federal court, consistent with the Eleventh Amendment, may enjoin state officials to conform their future conduct to the requirements of federal law.” Quern v. Jordan, 440 U.S. 332, 337 (1979). “A court may enter a prospective injunction that costs the state money, but only if the monetary impact is ancillary, i.e., not the primary purpose of the suit.” Barton v. Summers, 293 F.3d 944, 950 (6th Cir. 2002) (citing Edelman, 415 U.S. at 668). See also Quern, 440 U.S. at 349 (order requiring notice relief that was ancillary to prospective injunction enjoining ongoing violation of federal law did not violate the Eleventh Amendment); Milliken v. Bradley, 433 U.S. 267, 289-90 (1977) (injunction requiring state to expend funds to provide education programs to remedy racial discrimination was ancillary to non-compensatory goal not barred by the Eleventh Amendment). However, an injunction ordering retroactive benefits for
13

past violations of federal law is prohibited by the Eleventh Amendment, Edelman, 415 U.S. at 666-69, as is “notice relief” where there is no ongoing violation of federal law to be enjoined. Green v. Mansour, 474 U.S. 64, 71, 74 (1985). “Notice relief” is not an independent form of relief and must be “ancillary to the grant of some other appropriate relief that can be ‘noticed,’” such as an injunction compelling a State to conform its practices to federal law. Green, 474 U.S. at 71. Thus, where a change in federal law during the course of the litigation moots the plaintiffs’ claim for injunctive relief, there is no continuing violation of federal law to enjoin and notice relief is impermissible. Id.
In this case, defendants argue that all of plaintiffs’ claims are barred by the Eleventh Amendment because plaintiffs seek retroactive relief. Defendants assert that plaintiffs are asking the Court to backdate their enrollment in the assisted living waiver program or to require that defendants provide them with hearings to challenge their past enrollment dates, which are forms of relief prohibited under the Eleventh Amendment. (Doc. 89 at 11, citing First Am. Complaint at ¶¶ D-F). Defendants also argue that to the extent plaintiffs contend the notice relief they seek is ancillary to a prospective injunction, they are not entitled to ancillary relief because there is no ongoing violation of law to justify the requisite injunctive relief. (Id. at 12).
Plaintiffs dispute defendants’ characterization of the relief they seek. Plaintiffs deny they are seeking an award of damages; rather, they assert they are seeking prospective relief that includes: (1) declarations that defendants are in violation of the Medicaid Act and the Due Process Clause; (2) a prohibition on future denials of Medicaid assisted living waiver coverage to otherwise eligible plaintiffs for up to three months prior to the month of application; and (3) the provision of notice and an opportunity for a hearing for potentially eligible class members.
14

(Doc. 102 at 16). Plaintiffs assert each form of relief they seek is prospective in nature because
there is an ongoing violation of federal law. (Id.).
The declaratory and injunctive relief plaintiffs seek is not barred by the Eleventh
Amendment. Plaintiffs request (1) a declaration that defendants are violating federal law, and (2)
the entry of a permanent injunction requiring defendants to conform their eligibility
determinations for assisted living waiver benefits to the federal requirement that Medicaid
benefits be provided “in or after the third month before the month in which [the applicant] made application” if all other requirements are met. 42 U.S.C. § 1396a(a)(34).17 If plaintiffs succeed
on the merits of their claims, they would be entitled to the declaration and injunction they seek as
both are prospective forms of relief that are not barred by the Eleventh Amendment. Quern, 440
U.S. at 337.
In addition to declaratory and injunctive relief, plaintiffs seek notice relief. In their reply
memorandum, plaintiffs seek to clarify the notice relief sought in paragraph F of the First Amended Complaint18 to be consistent with their position in their opposition memorandum to
17 Plaintiffs’ First Amended Complaint seeks a declaratory judgment that: i. Defendants’ failure to grant retroactive eligibility for the Medicaid AL [assisted living] Waiver violates 42 U.S.C. § 1396a(a)(3), (a)(8), and (a)(34), and implementing regulations 42 C.F.R. §§ 431.205, 431.206, 435.915, and 435.930(a)-(b); ii. Defendants’ failure to notify applicants that they are being denied coverage for months in which they met eligibility requirements, violates the due process clause of the Fourteenth Amendment of the United States Constitution. . . .
(Doc. 56 at 14-15). The First Amended Complaint also seeks “a permanent injunction enjoining Defendants from denying Plaintiffs eligibility for the Medicaid AL Waiver for months in which they are determined to meet eligibility standards, for as early as three months prior to the month in which an application is made.” (Id. at 15). 18 The portions of the First Amended Complaint plaintiffs seek to amend request that the Court:
E. Enter an order requiring Defendants to identify and provide written notice to Plaintiffs and all class members that their Medicaid AL Waiver coverage will begin in the month in which they meet all eligibility criteria, up to three months prior to the month of application;
15

defendants’ motion for summary judgment. (Doc. 102 at 16-17). They propose the following
amended notice relief:
Enter an order requiring Defendants to identify and provide written notice to Plaintiffs and all class members that their Medicaid AL Waiver coverage will begin on the first day of the month in which they meet all eligibility criteria, up to three months prior to the month of application, with a notice advising them of the state administrative procedure, compliant with due process requirements, available if they desire to have Defendants determine whether or not they may be eligible for additional days of Medicaid AL Waiver coverage.
(Doc. 112 at 11). At the oral argument in this case, plaintiffs requested that their complaint be
amended to clarify the notice relief they are seeking. Defendants oppose an amendment of the
complaint and argue that plaintiffs’ request, made in reply to a motion for summary judgment, is
improper.
In deciding whether to grant a motion to amend pursuant to Fed. R. Civ. P. 15(a), a court
should consider factors including: undue delay in filing, lack of notice to the opposing party, bad
faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue
prejudice to the opposing party, and futility of amendment. Brumbalough v. Camelot Care Ctrs.,
Inc., 427 F.3d 996, 1001 (6th Cir. 2005). All of these factors weigh in favor of permitting the
clarification to the notice relief that plaintiffs seek. The notice relief, as clarified, is consistent
with the declaratory and injunctive relief plaintiffs seek. It essentially combines the relief sought
in paragraphs E and F of the amended complaint and eliminates the request that defendants
F. Require Defendants to identify all class members whose coverage did not begin in the first month in which all eligibility requirements were met (up to three months prior to the month of application), redetermine their eligibility for the Medicaid AL Waiver with coverage beginning on the first day of the month in which all eligibility criteria were met, and provide written notice and the opportunity for a fair hearing of the redetermination to all such identified class members, with the notice explaining the reasoning for setting the month in which coverage starts. . . . (Doc. 56 at 15).
16

affirmatively redetermine eligibility for assisted living waiver benefits.19 Plaintiffs have
consistently sought a court order compelling the State of Ohio to comply with federal law and
defendants have been on notice of this. The Court finds no undue delay in filing or bad faith on
the part of plaintiffs. Defendants have not demonstrated they will be unduly prejudiced by the
amendment. Plaintiffs are not asserting a new claim that would require the parties to expend
additional resources to conduct discovery. Nor does the amended notice relief change the nature
of this action. Finally, for the reasons discussed below, amendment of the requested notice relief
would not be futile.
The revised notice relief plaintiffs seek would advise individuals of the administrative
process for determining whether they may be eligible for additional assisted living waiver
benefits for up to three months prior to the month of application. The clarified notice relief
would not be barred by the Eleventh Amendment as this notice relief is similar to the notice
ultimately approved by the Supreme Court in Quern that advised class members “there are state
administrative procedures available by which they may receive a determination of whether they
are entitled to past welfare benefits.” Quern, 440 U.S. at 334. Such notice relief would be
ancillary to the prospective injunctive relief ordered by the Court and would do “nothing other
than inform a diverse and partially victorious class concerning the extent of the judgment in its
favor . . . and that the federal courts could do no more for them,” without any suggestion that the
notice would bind state officials in any way. Green, 474 U.S. at 71 (citing Quern, 440 U.S. at
349). As amended, there is nothing in the notice relief sought by plaintiffs that poses an
19 An order that would require defendants to “redetermine” plaintiffs’ eligibility for Medicaid assisted living waiver benefits (Doc. 56 at 15, First Amended Complaint, ¶ F) is the type of relief barred by the Eleventh Amendment. Such relief would be similar to the District Court’s notice in Quern informing individual class members that they were wrongfully denied benefits in a particular amount and providing a returnable form for filing claims with the appropriate state agency. This form of relief would “effectively result in a federal adjudication of state liability for past violations of federal law” in violation of the Eleventh Amendment. Green, 474 U.S. at 70 (citing Quern, 440 U.S. 332).
17

Eleventh Amendment bar to the adjudication of plaintiffs’ claims in this matter.20 Therefore, the
Court grants plaintiffs’ request to amend the complaint to specify the revised notice relief. The
Court will not dismiss plaintiffs’ claims as barred by the Eleventh Amendment.
B. Standing
Standing is a “threshold question in every federal case, determining the power of the
court to entertain the suit.” Senter v. General Motors Corp., 532 F.2d 511, 516 (6th Cir. 1976)
(quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). “In its constitutional dimension, standing
imports justiciability . . . [where] the plaintiff has made out a ‘case or controversy’ between
himself and the defendant within the meaning of Article III.” Id. at 516-17; see also United
States v. Van, 931 F.2d. 384 (6th Cir. 1991). A “case or controversy” is a personal stake in the
outcome. City of Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983). The Supreme Court has set
forth the following test for standing:
First, the plaintiff must have suffered an “injury in fact” – an invasion of a legally protected interest which is (a) concrete and particularized . . . and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical’.” . . . Second, there must be a causal connection between the injury and the conduct complained of – the injury has to be “fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court.” . . . Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (citations omitted). “Standing to
bring suit must be determined at the time the complaint is filed.” Smith v. Jefferson County Bd.
of Sch. Comm’rs, 641 F.3d 197, 206 (6th Cir. 2011) (citing Lynch v. Leis, 382 F.3d 642, 647 (6th
Cir. 2004)).21
20 Defendants argue that notice relief is not available because there is no “ongoing violation.” This argument goes to the merits of plaintiffs’ claims and is not properly resolved in connection with the Eleventh Amendment defense. 21 Defendants contend that plaintiffs may not rely on evidence related to putative class members to establish standing in this case or in resolving the motions for summary judgment. (Doc. 104 at 2-3). The Court has considered the claims and circumstances of only the named plaintiffs in these regards.
18

There is no question that both named plaintiffs meet the first and second prongs of Lujan for standing. Both suffered an injury in fact that was causally related to the actions of defendants. The defendants’ determinations of eligibility for the assisted living waiver program granted prospective-only benefits. Under Ohio’s rules, neither plaintiff was potentially eligible for retroactive coverage for up to three months prior to their applications.
Nevertheless, defendants contend that neither plaintiff has standing to obtain prospective injunctive or declaratory relief because neither Mrs. Hilleger nor Mrs. Saunders is currently receiving assisted living waiver benefits. Defendants assert that the named plaintiffs cannot establish the redressability prong of Lujan’s standing test because Mrs. Hilleger is deceased and Mrs. Saunders was no longer living in an assisted living waiver facility at the time the complaint was filed.22 Defendants argue that the named plaintiffs are unable to demonstrate that their claimed injuries will be redressed by a favorable decision. (Doc. 89 at 12, citing Lujan, 540 U.S. at 560-61). Defendants raise five arguments in support of their standing defense.
First, defendants contend that the retroactive relief each plaintiff seeks is barred by the Eleventh Amendment. (Doc. 89 at 13). For the reasons stated above, the Eleventh Amendment does not bar the prospective injunctive relief sought by plaintiffs.
Second, defendants argue that plaintiffs lack standing to obtain prospective injunctive or declaratory relief because there is no “ongoing” violation that can be redressed by the relief plaintiffs seek. (Doc. 89 at 12, citing Green, 474 U.S. at 67-68). In Green, the Supreme Court held that the Eleventh Amendment prohibited either “notice relief” or a declaration that state officials had violated federal law in the past where the federal statute in question had been
22 Mrs. Saunders was not disenrolled from the assisted living waiver program until after the complaint was filed. (Doc. 89, Ex. 11).
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amended during the pendency of the case and there was no ongoing violation of federal law to enjoin. 474 U.S. at 73-74. Unlike Green, there has been no statutory or regulatory amendment that eliminates the ongoing violation of federal law alleged by plaintiffs. Rather, plaintiffs allege that by prohibiting retroactive assisted living waiver benefits, defendants continue to violate 42 U.S.C. § 1396a(a)(34)’s mandate to provide assistance to eligible individuals “in or after the third month before the month in which [they] made application.” Further, defendants’ argument that this case does not involve an ongoing violation that can be redressed by the relief plaintiffs seek depends for its success on a ruling in defendants’ favor on the merits of plaintiffs’ statutory claim, i.e., a finding that defendants are not violating federal law.23 If the Court finds that defendants are violating federal law, the notice and declaratory relief plaintiffs seek will redress this violation.
Third, defendants contend that neither plaintiff has standing to assert the claims in this case because neither has established she actually met the assisted living waiver requirements up to three months prior to her date of application. (Doc. 113 at 13). The Court is not persuaded by this argument because it hinges on the validity of defendants’ eligibility requirements for assisted living waiver benefits, which are at issue in this case. According to defendants, no Medicaid applicant in Ohio is ever eligible for assisted living waiver benefits prior to the date of application under the State regulatory scheme because the effective date of “enrollment” in the assisted living waiver program depends on post-application events, such as the development of a plan of care. Plaintiffs argue that defendants’ position is legally incorrect because Ohio’s assisted living waiver requirements violate the retroactivity requirement of 42 U.S.C. § 1396a(a)(34). Plaintiffs do not lack standing to present their claims simply because they
23 At oral argument, defendants conceded that to succeed with this argument, the Court must rule against plaintiffs on their statutory claim.
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allegedly failed to meet the same assisted living waiver requirements that they challenge in this lawsuit as violative of federal law.
For example, Mrs. Hilleger applied for assisted living waiver benefits on October 19, 2012. On November 6, 2012, the Council on Aging developed her service plan and determined that Mrs. Hilleger met the level of care requirements. Yet, her assisted living waiver coverage did not begin until January 3, 2013, when her financial eligibility was finally determined by the county department of job and family services. Plaintiffs contend that Mrs. Hilleger was entitled to assisted living waiver benefits as of October 1, 2012, when she met the financial eligibility standards for Medicaid and all of the other requirements for assisted living waiver benefits. If plaintiffs are successful on their statutory claim, then Mrs. Hilleger would be eligible for additional assisted living waiver services “furnished in or after the third month before the month in which [s]he made application.” § 1396a(a)(34).
Fourth, defendants contend Mrs. Hilleger lacks standing because her § 1983 claim does not survive her death and must be dismissed.
In determining whether Mrs. Hilleger’s § 1983 claim survives her death, the Court must look to Ohio state law, as long as such law is not inconsistent with federal law or the Constitution. Robertson v. Wegmann, 436 U.S. 584, 588-90 (1978); Haggard v. Stevens, 683 F.3d 714, 717-18 (6th Cir. 2012). Ohio Rev. Code § 2305.21 governs the survival of actions under Ohio law and provides:
In addition to the causes of action which survive at common law, causes of action for mesne profits, or injuries to the person or property, or for deceit or fraud, also shall survive; and such actions may be brought notwithstanding the death of the person entitled or liable thereto. “Injuries to the person” means “physical injuries” under Ohio Rev. Code § 2305.21. Witcher v. Fairlawn, 680 N.E.2d 713, 715 (Ohio Ct. App. 1996); Oakwood v. Makar, 463 N.E.2d 61, 64
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(Ohio Ct. App. 1983). The term “personal property” under the statute “is not limited to tangible
goods and chattels. Intangible choses in action, such as a contract right and the right to bring a
cause of action in a court of law, are also considered personal property.” Loveman v. Hamilton,
420 N.E.2d 1007, 1009 (Ohio 1981) (citations omitted). Thus, for example, the Ohio Supreme
Court has held that a cause of action for legal malpractice involves a property interest that
survives the death of the former client. Id. at 1008. Injury to property is not “confined to
physical damage or destruction of tangible property, but the word is broad enough to include the
lessening in value of an estate by a depletion in value thereof resulting from tort.” Adams v.
Malik, 155 N.E.2d 237, 239 (Ohio Ct. App. 1957).
Medicaid is an entitlement program under Title XIX of the Social Security Act, 42 U.S.C.
§ 1396 et seq., and plaintiffs have a property interest in state-provided benefits for which they
hope to qualify. Hamby v. Neel, 368 F.3d 549, 559 (6th Cir. 2004); Ability Center of Greater
Toledo v. Lumpkin, 808 F. Supp.2d 1003, 1026 (N.D. Ohio 2011). See also Goldberg v. Kelly,
397 U.S. 254 (1970). Because Ohio recognizes that intangible property interests survive the
death of the decedent, Mrs. Hilleger’s property interest in her eligibility for Medicaid assisted living waiver benefits for up to three months prior to the date of application survives her death.24
In addition, at the oral argument of this case, defendants conceded that if plaintiffs are successful
on their claims and notice relief is ordered, the estate of Mrs. Hilleger could pursue a state
24 Jaco v. Bloechle, 739 F.2d 239 (6th Cir. 1984), cited by defendants, is not to the contrary. In Jaco, the issue was whether a § 1983 claim brought on behalf of a decedent who died instantly as a result of alleged constitutional violations by the defendants survived the decedent’s death because it involved a “personal injury.” The Sixth Circuit determined that it did, reasoning that to permit an action to survive when the decedent experienced some pain and suffering before expiring, but not when the decedent died instantly, would be anomalous to the purposes behind the civil rights statute. In any event, this case does not involve injuries to the person, but injuries to the property interests of the plaintiffs. Likewise, the Court is not persuaded by the decision in Bernard v. Kansas Health Policy Authority, No. 09-1247, 2012 WL 941674, at *5 (D. Kan. March 20, 2012), cited by defendants. In that case, the court concluded, without any analysis or discussion, that the plaintiff’s claim for a denial of Medicaid benefits was not a claim for “injury to real or personal estate” that survived the plaintiff’s death. Because Bernard was decided under Kansas law, the undersigned declines to follow it.
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hearing on behalf of Mrs. Hilleger to obtain the assisted living waiver benefits that were denied prior to her “enrollment” date.
Fifth, defendants argue that Mrs. Saunders’ claims are moot because she has not received assisted living waiver services since December 12, 2012, when she moved from the assisted living facility to a nursing home. They allege that this “intervening event” – Mrs. Saunders’ departure from an approved assisted living facility, which is an eligibility requirement for assisted living waiver benefits – eliminates the “live” controversy requirement for standing. In essence, defendants imply that the prospective relief requested by plaintiffs has relevance only to continuing and future participants of the assisted living waiver program. In addition, defendants posit that whether Mrs. Saunders will improve to the point where she will be able to reapply for assisted living waiver benefits is speculative.
Plaintiffs contend a case or controversy still exists as to whether defendants deprived Mrs. Saunders of her rights under federal law and the United States Constitution. Plaintiffs assert that Mrs. Saunders’ claims are not moot because they are not dependent upon her place of residence, especially given the inherently transitional nature of her care needs. They assert that Mrs. Saunders’ injury stems from defendants’ failure to cover her assisted living services from June through July 2012, her injury was “a cognizable injury with provable deprivation of her entitlement to Medicaid benefits when this case was filed,” and “this deprivation continues.” (Doc. 102 at 23). Plaintiffs also allege that given the transitory medical conditions of persons like Mrs. Saunders, whose fragile conditions may require moves to facilities providing greater levels of care, her claims do not become moot upon her change of residence. (Id., citing Ledford v. Colbert, No. 1:10-cv-706, 2012 WL 2263279, at *7 (S.D. Ohio June 18, 2012)). Plaintiffs also note that in addition to Mrs. Saunders’ statutory claim, she has standing to assert her due
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process claim as the Supreme Court has recognized that a claim for procedural rights is not
subject to “the normal standards for redressability and immediacy” because “[t]he person who
has been accorded a procedural right to protect his concrete interests can assert that right without
meeting” the redressability norms. Lujan, 504 U.S. at 572, n.7.
“The test for mootness is whether the relief sought would, if granted, make a difference
to the legal interests of the parties.” McPherson v. Michigan High School Athletic Ass’n, Inc.,
119 F.3d 453, 458 (6th Cir. 1997) (en banc) (citation omitted). If plaintiffs are successful on the
merits of their statutory and/or due process claims, the prospective injunctive and notice relief
they seek would make a difference to the plaintiffs’ legal interests. At oral argument, defendants
conceded that if the Court orders the declaratory, injunctive, and notice relief that plaintiffs seek,
there is nothing to prevent Mrs. Saunders or Mrs. Hilleger’s estate from requesting a fair hearing
to determine additional days of coverage and obtaining retroactive assisted living waiver
benefits. Because this relief would likely redress the concrete financial injury that plaintiffs have
suffered, they have standing to bring the claims in this case.25
VI. ANALYSIS OF SUBSTANTIVE CLAIMS
The substantive issues in this case are whether the Ohio Medicaid program, which
provides assisted living waiver benefits to individuals who would otherwise require institutional
or nursing home care, violates federal law: (1) in the manner in which Ohio determines the
effective date of an individual’s eligibility for assisted living waiver benefits; (2) in the method
25 Moreover, the Supreme Court has recognized that the termination of a class representative’s claim does not moot the class claims where, as here, the claims are inherently transitory. See Cty. of Riverside v. McLaughlin, 500 U.S. 44, 51 (1991). In a similar case, this Court previously recognized that given the age and health conditions of individuals residing at Ohio Medicaid-eligible assisted living facilities, individuals may pass into and out of Medicaid waiver programs and into higher or lower levels of care. Ledford, 2012 WL 2263279, at *7. The fact that one of the named plaintiffs in Ledford vacated the assisted living facility in which she lived as it was no longer meeting her needs did not moot the class claims for declaratory and injunctive relief. Id. While Mrs. Saunders is not currently receiving assisted living waiver benefits, she may well receive them in the future and Ohio’s policy prohibiting retroactive assisted living waiver benefits will apply to her as in the past. Under these circumstances, dismissal for a lack of standing is not warranted. See Ledford, 2012 WL 2263279, at *7.
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for providing notice to individuals of the eligibility decision; and (3) in the promptness with which eligibility determinations are made.
A. Whether Ohio violates the federal Medicaid statute by providing only prospective, and not retroactive, assisted living waiver benefits.
Federal law mandates retroactive Medicaid coverage for care and services “furnished in or after the third month before the month” of application “if such individual was (or upon application would have been) eligible for such assistance at the time such care and services were furnished.” 42 U.S.C. § 1396a(a)(34). Under Ohio’s Medicaid rules, however, an individual can never receive assisted living waiver benefits for services provided during the three-month retroactive period. Ohio provides prospective-only assisted living waiver benefits based on an “enrollment” date which cannot occur before the date of application. Enrollment in Ohio’s assisted living waiver program cannot occur until five specified events are completed, including approval of a post-application service plan by defendant ODA’s designee. Ohio Admin. Code 173-38-03(C)(1)(b).
Plaintiffs argue that Ohio’s regulations which prohibit assisted living waiver benefits for up to three months prior to the month of application for individuals who were eligible for coverage at the time those services were furnished violate the retroactivity provision of § 1396a(a)(34). Plaintiffs allege that § 1396a(a)(34) requires retroactive coverage for assisted living waiver services as long as a person (1) receives covered Medicaid services, and (2) would have been eligible for Medicaid at the time the services were rendered, if an application had been made at that time. Under Ohio’s Medicaid program, however, an applicant may receive services in a residential care facility for multiple months and be determined financially and clinically eligible for those months, but the individual can receive only prospective coverage of his or her
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services from the date on which defendant ODA’s designee approves the assisted living service plan.
Defendants contend that receipt of retroactive benefits under § 1396a(a)(34) depends on whether an “individual was (or upon application would have been) eligible for such assistance at the time such care and services were furnished.” 42 U.S.C. § 1396a(a)(34). They allege plaintiffs did not meet the eligibility requirements for assisted living waiver services during the retroactive period. Defendants argue that eligibility for assisted living waiver benefits is prospective only because it requires, among other things, a face-to-face assessment of the applicant to determine the applicant’s level of care and service plan under Ohio Admin. Code 173-38-039(A)(1) and (C). Defendants allege that because an individual cannot be eligible for benefits prior to the face-to-face assessment, individuals cannot be enrolled retroactively in the waiver program.
Plaintiffs counter that Ohio is imposing its own post-application eligibility requirements for assisted living waiver benefits that are contrary to federal law.
This case requires the Court to determine the meaning of § 1396a(a)(34)’s phrase “was (or upon application would have been) eligible” in the context of the assisted living waiver program under 42 U.S.C. § 1396n(c). The Court concludes that when considered in conjunction with the assisted living waiver provision of § 1396n(c), the language of the retroactivity provision of § 1396a(a)(34) is clear: assisted living waiver benefits may be provided retroactively up to three months before application for supportive services furnished during the retroactive period.
In addressing questions of statutory construction, the Court starts by examining the plain language of the statute to discern Congress’s intent. Desert Palace, Inc. v. Costa, 539 U.S. 90,
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98 (2003) (citing Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992)). It is presumed that Congress’s intent is expressed in the plain language of a statute. Germain, 503 U.S. at 25354. In examining whether Ohio’s practice of providing only prospective, and not retroactive, assisted living waiver benefits violates § 1396a(a)(34), the Court must “consider the language [of § 1396a(a)(34)] itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Flores v. U.S. Citizenship and Immigration Servs., 718 F.3d 548, 551 (6th Cir. 2013) (citation and internal quotation omitted). If the language is unambiguous, it is controlling and the Court’s inquiry is over. Desert Palace, 539 U.S. at 98; Germain, 503 U.S. at 254. See also Brilliance Audio, Inc. v. Haights Cross Commc’n, Inc., 474 F.3d 365, 371 (6th Cir. 2007) (“If the language of the statute is clear, then the inquiry is complete, and the court should look no further.”). If the statutory language does not address the precise question or is ambiguous, then the Court must look to traditional tools of statutory interpretation to ascertain Congress’s intent, including legislative history, policy rationales, and context. See In re Carter, 553 F.3d 979, 986 (6th Cir. 2009); Cowherd v. Million, 380 F.3d 909, 913 (6th Cir. 2004) (citations omitted). If the Court determines that Congress has not directly addressed the precise question at issue, and if the agency responsible for administering the statute has addressed the issue, the court must determine the level of deference it should accord the agency’s interpretation. See Carroll v. Debuono, 998 F. Supp. 190, 194 (N.D.N.Y. 1998) (analyzing Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984)).
Section 1396a(a)(34) states that medical assistance will be provided during the retroactive period if an individual “was (or upon application would have been) eligible for such assistance at the time such care and services were furnished.” 42 U.S.C. § 1396a(a)(34). The
27

phrase “or upon application would have been” indicates that as long as care and services are provided to an individual within three months prior to the month of application, Medicaid coverage is not to be denied based solely on when the application was actually filed. Whether an individual “was” or “would have been” eligible for Medicaid during the three month retroactive period requires a retrospective look at the eligibility requirements for the particular Medicaid program the individual is applying for and the individual’s circumstances during this period. Thus, whether an individual is entitled to retroactive assisted living waiver benefits under § 1396a(a)(34) depends on whether the individual met the specific eligibility requirements for assisted living waiver benefits at the time supportive services were provided, up to three months prior to the month of application. This, in turn, requires an examination of § 1396a(a)(34) in the context of the eligibility criteria for assisted living waiver benefits set forth in the home and community-based services statute, 42 U.S.C. § 1396n(c). Flores, 718 F.3d at 551.
The federal statute governing home and community-based services, which includes assisted living waiver benefits, states:
The Secretary may by waiver provide that a State plan approved under this subchapter may include as ‘medical assistance’ under such plan payment for part or all of the cost of home and community-based services (other than room and board) approved by the Secretary which are provided pursuant to a written plan of care to individuals with respect to whom there has been a determination that but for the provision of such services the individuals would require the level of care provided in a hospital or a nursing facility or intermediate care facility for the mentally retarded the cost of which could be reimbursed under the State plan. 42 U.S.C § 1396n(c)(1). Under the plain terms of the statute, Medicaid coverage is authorized for home and community-based services that are provided “pursuant to a written plan of care” to individuals who require the level of care provided in a hospital or nursing home environment such that without the supportive services the individual would be institutionalized. 42 U.S.C. §
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1396n(c)(1). The assisted living waiver statute authorizes coverage for a variety of supportive services:
A waiver granted under this subsection may . . . provide medical assistance to individuals (to the extent consistent with written plans of care, which are subject to the approval of the State) for case management services, homemaker/home health aide services and personal care services, adult day health services, habilitation services, respite care, and such other services requested by the State as the Secretary may approve. . . . 42 U.S.C. § 1396n(c)(4)(B) (emphasis added). The Court has interpreted the relevant statutory sections “as a whole, giving effect to each word and making every effort not to interpret a provision in a manner that renders other provisions of the same statute inconsistent, meaningless or superfluous.” Mitchell v. Chapman, 343 F.3d 811, 825 (6th Cir. 2003). The Court concludes that the plain language of § 1396a(a)(34) and § 1396n(c) authorizes the payment of retroactive assisted living waiver benefits. Section 1396a(a)(34) mandates the payment of retroactive Medicaid benefits to individuals who “would have been eligible” had they applied during the retroactive period. 42 U.S.C. § 1396a(a)(34). Whether an individual “would have been eligible” for assisted living waiver benefits under § 1396n(c)(1) depends on whether supportive services were “provided pursuant to a written plan of care” and whether the individual otherwise “would require the level of care provided in a hospital or a nursing facility.” 42 U.S.C. § 1396n(c)(1). The supportive services must be “consistent with written plans of care, which are subject to the approval of the State. . . .” 42 U.S.C. § 1396n(c)(4) (emphasis added). Under the plain terms of these statutory provisions, retroactive Medicaid coverage is therefore authorized for assisted living waiver services furnished during the retroactive period as long as (1) those services were provided “pursuant to” and “consistent with” a written plan of care, and (2) the applicant met the hospital
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or nursing facility level of care requirement during the retroactive period.26 This construction gives effect to both § 1396a(a)(34) and § 1396n(c) and is the only interpretation that does not render the provisions of the retroactivity or assisted living waiver statute meaningless or superfluous. This interpretation is also in keeping with Congress’s mandate that eligibility for Medicaid must be viewed based on the circumstances as if the person had actually made an application during the three month retroactive period. As explained below, there is nothing in the statute that prohibits a State from retrospectively examining the eligibility factors for assisted living waiver benefits.
Defendants argue that a written service plan must be in place before waiver services may be furnished and in most cases the development of the service plan will not occur until after the date of application. (Doc. 120 at 3, 5-6). Although not explicit, defendants’ argument suggests that any services that are provided before a service plan has been developed are not services “provided pursuant to a written plan of care” in accordance with 42 U.S.C. § 1396n(c)(1). (Id. at 3, 5-6, 11). Yet, this interpretation miscomprehends the phrase “pursuant to a written plan of care” as used in § 1396n(c)(1) and is not consistent with the ordinary meaning of the term. See Limited, Inc. v. C.I.R., 286 F.3d 324, 333 (6th Cir. 2002) (citations omitted) (courts construe undefined terms in a statute in accordance with the ordinary or natural meaning). The phrase “pursuant to” has been generally defined by courts to mean “‘in compliance with; in accordance with; under [or] . . . as authorized by . . . [or] in carrying out.’” Alford v. Kuhlman Elec. Corp., 716 F.3d 909, 914 (5th Cir. 2013) (quoting United States v. DeCay, 620 F.3d 534, 544 (5th Cir. 2010) (quoting Black’s Law Dictionary (8th ed. 2004)). See also United States v. Lee, 659 F.3d 619, 622 (7th Cir. 2011); E.P. Paup Co. v. Dir., Office of Workers Comp. Programs, U.S. Dep’t
26 Coverage is also subject to the financial and other eligibility requirements that are not at issue in this case.
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of Labor, 999 F.2d 1341, 1348-49 (9th Cir. 1993). Cf. Bhd. of Ry. & S.S. Clerks, Freight Handlers, Express & Station Emp. v. Ry. Express Agency, Inc., 238 F.2d 181, 184 (6th Cir. 1956) (construing the phrase “pursuant to” in contract to mean “in conformity to”). Once the State agency determines the appropriate types of assisted living services for an individual and memorializes them in a written service plan, services provided in the retroactive period that are “in compliance with” or “in accordance with” that service plan must be covered by Medicaid under § 1396a(a)(34). If such services are not consistent with the applicant’s plan of care, they are not rendered “pursuant to” a plan of care and the State retains the authority to disapprove payment for those services, subject to fair hearing rights upon denial of retroactive coverage.
In addition, defendants’ construction is inconsistent with an analogous provision of the Medicaid statute that provides retroactive coverage for services provided “in accordance with a written plan of care” to Medicaid applicants in nursing facilities. 42 U.S.C. § 1396r(b)(2). Section 1396r governs the Medicaid requirements for nursing facilities and provides in relevant part:
A nursing facility must provide services and activities to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident in accordance with a written plan of care which— (A) describes the medical, nursing, and psychosocial needs of the resident and how such needs will be met. . . . 42 U.S.C. § 1396r(b)(2). Defendants acknowledge that retroactive coverage for such services is available under § 1396a(a)(34). (Doc. 104 at 8). Defendants argue that the comparison of assisted living waiver benefits to nursing facility benefits is an “apples to oranges” comparison and that the criteria for Medicaid payments for nursing facility services and assisted living waiver services are separate and distinct. (Doc. 104 at 7). The Court disagrees and finds the similarity of the language used in both statutes – that
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assisted living waiver services be provided “pursuant to” and “consistent with” a plan of care and that nursing facility services be provided “in accordance with” a plan of care – to be persuasive evidence of Congress’s intent and an apt comparison in construing the statutory language.
The Court is further persuaded that assisted living waiver benefits are subject to § 1396a(a)(34) retroactivity given Congress’s choice to not expressly exempt assisted living waiver benefits from the retroactivity requirement. There is nothing in the plain language of either § 1396a(a)(34) or § 1396n(c) that expressly prohibits coverage for services provided in the retroactive period. Notably, Congress has limited § 1396a(a)(34)’s retroactivity requirement in specified instances, but Congress has not done so for assisted living waiver benefits. For example, Congress made explicit exceptions to the retroactivity requirement in particular Medicaid programs, such as in 42 U.S.C. § 1396d(a) for Qualified Medicare Beneficiaries (“The term ‘medical assistance’ means payment of part or all of the cost of the following care and services or the care and services themselves, or both (if provided in or after the third month before the month in which the recipient makes application for assistance or, in the case of medicare cost-sharing with respect to a qualified medicare beneficiary described in subsection (p)(1) of this section, if provided after the month in which the individual becomes such a beneficiary). . . .”) and in 42 U.S.C. § 1315(a)(1) for Medicaid “demonstration” projects (Medicaid demonstration waiver allows “any” requirement of section 1396a to be waived). See Dozier, 2014 WL 5480815, at *6 (waiving § 1396a(a)(34) retroactive coverage for family planning program under demonstration project statute, 42 U.S.C. § 1315(a)(1)). The exceptions to § 1396a(a)(34) retroactivity for Qualified Medicare Beneficiaries and Medicaid demonstration projects demonstrate that Congress understood how to except specific Medicaid programs from the retroactivity requirement. The fact that Congress did not create an explicit exception to the
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retroactivity requirement set forth in § 1396a(a)(34) for home and community-based services
under § 1396n(c) persuades this Court that it should not imply such an exception for assisted
living waiver benefits. See Hui v. Castaneda, 559 U.S. 799, 807 (2010) (“explicit exception” in
one statute was “powerful evidence” that similar statutes did not “imply such an exception”).
The language of the § 1396n(c) home and community-based services statute also sheds
light on whether Congress intended to exempt assisted living waiver benefits from §
1396a(a)(34)’s retroactivity requirement. Section 1396n(c) specifies that only three § 1396a(a)
requirements may be “waived” by a State in providing home and community-based services
such as assisted living waiver benefits: the requirements of § 1396a(a)(1) (relating to
“statewideness”), § 1396a(a)(10)(B) (relating to comparability), and § 1396a(a)(10)(C)(i)(III)
(relating to income and resource rules applicable in the community). See 42 U.S.C. §
1396n(c)(3).27 The home and community-based services provision of § 1396n(c) does not
authorize the State to waive the retroactivity provision of § 1396a(a)(34). As the Ninth Circuit
has explained:
The list of waivable requirements in 42 U.S.C. § 1396n(c)(3) is exclusive. Nothing in the HCBS waiver provision provides the Secretary with authority to waive any other of the Medicaid Act’s requirements when granting an HCBS waiver. The ‘presumption that when a statute designates certain persons, things, or manners of operation, all omissions should be understood as exclusions’ thus comes into play.
Arc of California, 757 F.3d at 985-86 (internal quotation marks and citations omitted) (emphasis
in the original) (finding state not permitted to waive compliance with § 1396a(a)(30)(A), a
provision requiring state agency to set Medicaid reimbursement rates based on responsible cost
studies, in connection with HCBS waiver under § 1396n(c)). See also McMillan v. McCrimon,
27 Ohio’s assisted living waiver application requests waiver of only one federal requirement: Medicaid’s comparability requirement of 42 U.S.C. § 1396a(a)(10)(B), which mandates that benefits of the same amount, duration, and scope be available to all qualifying Medicaid beneficiaries, regardless of the beneficiary’s eligibility category.
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807 F. Supp. 475, 482 (C.D. Ill. 1992) (while § 1396n(c)(3) allows the Secretary to waive certain uniform requirements of the Medicaid Act, such as requirements relating to statewideness, comparability, and income, it does not allow a waiver of other Medicaid requirements, such as the “reasonable promptness” requirement of 42 U.S.C. § 1396a(a)(8)). Because the retroactivity requirement of § 1396a(a)(34) cannot be waived, it remains in effect for those applying for assisted living waiver benefits.
The structure of the home and community-based services waiver statute further persuades this Court that Congress did not intend to exempt § 1396a(a)(34) retroactivity from assisted living waiver benefits. Congress structured the § 1396n waiver statute to permit broad waivers in some instances, such as those listed under § 1396n(b) (authorizing waiver of “such requirements of section 1396a” – some 80 plus requirements with only three exceptions – to promote cost-effectiveness and efficiency); however, Congress authorized more narrow waivers in other instances such as those under § 1396n(c) (authorizing waiver of only three requirements of § 1396a(a) providing for home and community-based services waivers). See Arc of California, 757 F.3d at 986. “Section 1396n(b) is thus structured exactly inversely to the HCBS waiver provision [of § 1396n(c)]; it authorizes the waiver of any otherwise-applicable requirement, except three. The existence of 42 U.S.C. § 1396n(b) one paragraph above the subsection authorizing HCBS waivers demonstrates that Congress carefully structured the statute to allow broad waivers in some instances and not others.” Id. Particularly when juxtaposed against § 1396n(b), the statutory structure of § 1396n(c) indicates that no requirements other than those specifically enumerated in subsection (c)(3) can be waived.
Nevertheless, defendants argue that applicants for assisted living waiver benefits can never be eligible for retroactive benefits under § 1396a(a)(34) because eligibility for Ohio’s
34

assisted living waiver program depends on post-application events, such as a determination of
the individual’s level of care and the development of a service plan. Defendants allege these are
“real-time” events that can never occur during the three-month retroactivity period. Defendants
assert that before eligibility for assisted living waiver benefits may be determined, there must be
a face-to-face assessment and use of a specific assessment tool in making the level of care
determination and developing the service plan. Defendants also contend that the service
planning process set forth in federal regulations bars retroactive assisted living waiver benefits.
See 42 C.F.R. § 441.301(c)(1) and (c)(2).28 Defendants argue that because Ohio must provide
assisted living waiver services under a written service plan that is developed based on point-in-
time events that cannot be backdated – such as the participation and signature of the individual –
defendants cannot authorize the payment of assisted living waiver benefits before these
requirements are met. Defendants argue this interpretation is reinforced by the nature of the
person-centered process and specific requirements for service plans under 42 C.F.R. § 441.301.
Plaintiffs contend that nothing in the federal Medicaid statute and regulations governing
assisted living waiver benefits prohibits Ohio from retrospectively examining the eligibility
requirements for the assisted living waiver program when determining whether an individual is
eligible for retroactive benefits. Plaintiffs do not dispute that home and community-based
services, including assisted living waiver services, are provided pursuant to “a written plan of
care.” However, plaintiffs argue the service planning process for assisted living waiver services
28 Federal regulations governing the written plan of care provide that assisted living waiver services must be furnished “[u]nder a written person-centered service plan (also called plan of care) that is based on a person-centered approach and is subject to approval by the Medicaid agency.” 42 C.F.R. § 441.301(b)(1)(i). This person-centered process includes requirements that the individual lead the process, that people chosen by the individual be included in the process, that necessary information and support be provided to ensure that the individual directs the process, and that the process is timely and occurs at times and locations convenient for the individual. 42 C.F.R § 441.301(c)(1)(i)-(iii). Federal regulations also specify that the service plan itself must “be finalized and agreed to, with the informed consent of the individual in writing, and signed by all individuals and providers responsible for its implementation.” 42 C.F.R. § 441.301(c)(2)(ix).
35

does not prohibit a retrospective consideration of eligibility and is similar to Ohio’s long-term care service planning process in nursing home facilities, for which retroactive Medicaid is provided.
The Court is not persuaded by defendants’ argument that the requirement of a “face-toface” assessment to determine the level of care and to develop a written service plan precludes retroactive assisted living waiver benefits. As defendants acknowledge, the “level of care” determination for assisted living waiver benefits is not always conducted “face-to-face.” See Ohio Admin. Code 5160-3-14(A)(2) (“may occur face-to-face or by a desk review,29 as defined in rule 5101:3-3-0530 of the Administrative Code. . . .”) (emphasis added). More importantly, there is nothing about a face-to-face assessment or the use of the assessment tool that prevents a retrospective determination of eligibility as discussed above. As defendants acknowledge, Ohio routinely offers retroactive coverage to Medicaid beneficiaries for long-term care services in a nursing facility.31 (Doc. 104 at 8). Moreover, the assessment form utilized for determining the “level of care” requirement for assisted living waiver services is the same form used for determining eligibility for long-term nursing facility services. See Ohio Admin. Code 5160-314(B) (form JFS 03697); Doc. 93, Exs. F, X.
The Court also disagrees that the signature requirements and person-centered service planning process set forth in the federal regulations foreclose a retrospective assessment of eligibility for assisted living waiver benefits. Applications for other Medicaid programs require
29 A desk review is defined as “a level of care determination process that is not conducted in person.” Ohio Admin. Code 5160-3-05(B)(10). 30 This Code section has been renumbered as Ohio Admin. Code 5160-3-05. 31 Ohio Admin. Code § 5160:1-1-51(K)(1)(b) (retroactive coverage for nursing facility residents and other nonassisted-living Medicaid beneficiaries); 42 U.S.C. § 1396r(b)(2) (written plan of care required in nursing facility), (b)(3)(C)(i)(I) (assessment required within 14 days after nursing facility admission); 42 C.F.R. § 483.20(k)(2)(i) (in nursing facility, care plan developed within 7 days after comprehensive assessment).
36

the signature of the applicant (a “real-time” event), but do not prevent the provision of retroactive benefits. See 42 C.F.R. § 435.907(f); Ohio Admin. Code 5160:1-1-51(D), (G), (I), (K). There is no logical explanation for why the requirement of a “real-time” signature should bar an assessment of whether an individual “would have been eligible” for assisted living waiver benefits pre-application during the three month retroactivity period. In addition, the personcentered process is intended to respect the individual preferences and choices of those seeking assisted living services, and there is no logical justification for using it to impede their right to retroactive coverage. See 42 C.F.R. § 441.301(c)(1), (2).
Ohio’s rules setting the effective date of assisted living waiver eligibility as beginning only after an application is filed and after the State approves a service plan, assesses financial qualifications (as in Mrs. Hilleger’s case), or determines the level of care qualifications thwart Congress’s intent as expressed in § 1396a(a)(34). These rules permit the State to evade the retroactivity requirement by simply selecting a definition of “eligibility” that relies on a postapplication event. Defendants’ interpretation effectively eviscerates the “(or upon application would have been)” provision of § 1396a(a)(34), which contemplates a retrospective view of an individual’s circumstances had that person actually applied for Medicaid when he or she received the care or services.
Finally, defendants argue that the Court should defer to CMS’s guidance on the issue of whether assisted living waiver benefits may be provided during the retroactive eligibility period set forth in § 1396a(a)(34). Defendants state that the “CMS Application and Instructions to States” utilized by Ohio when it applied for the assisted living waiver support Ohio’s
37

interpretation.32 Defendants further note that CMS approved Ohio’s assisted living waiver
application which was submitted in accordance with these instructions. Defendants also assert
that they specifically asked CMS about retroactive enrollment on the HCBS waiver and in
response CMS provided defendants with “Olmstead Update #3” issued by the federal Health
Care Financing Administration (the precursor to CMS). (Doc. 113, Hobbs Aff. ¶¶ 5-6).33 Based
upon Olmstead Update #3 and the review of other materials, Ohio amended its waiver in March
2014 to change enrollment in the assisted living waiver program to the latest of (1) the effective
date of basic Medicaid; (2) the date the individual meets the level of care; (3) the date the
individual meets the special waiver requirements; and (4) the date of the approved service plan
(which includes at least one waiver service). (Id., ¶ 7). Defendants claim that CMS therefore
implicitly approved Ohio’s approach.
Plaintiffs contend that the CMS materials cited by defendants are sub-regulatory and do
not address the interpretation of § 1396a(a)(34). Plaintiffs also argue that CMS’s approval of
Ohio’s assisted living waiver application lends no support to defendants’ interpretation of §
1396a(a)(34). They allege that the fact of the approval alone gives no indication that CMS
considered how to interpret § 1396a(a)(34) or how to apply that section to Ohio’s waiver
application. In addition, plaintiffs contend Olmstead Update #3, which announced a policy
change to “facilitate expeditious initiation of waiver services” (Doc. 102, Pecquet Decl., Ex. B),
32 The CMS Instructions state that “all waiver services must be furnished pursuant to a written service plan that is developed for each waiver participant” and that “Federal Financial Participation (FFP) may not be claimed for waiver services that are furnished prior to the development of the service plan or for waiver services that are not included in an individual’s service plan.” (Doc. 89, Ex. 5, App. D-1 at 178; Doc. 89, Ex. 5, Item 6-A at 55). 33 The “Olmstead Update” sets forth a policy change intended to facilitate the expeditious initiation of waiver services by permitting “provisional” written plans of care identifying the essential Medicaid services to be provided in the first 60 days of waiver eligibility, with a fuller plan of care to be developed subsequently. This document also states that the “earliest date of HCBS waiver eligibility” is “the last date all of the following requirements have been met”: (1) basic Medicaid eligibility; (2) level of care; (3) special waiver requirements; (4) plan of care; and (5) waiver service. (Doc. 113, Ex. 1B).
38

actually undermines defendants’ position. Plaintiffs allege that the policy change demonstrates
the federal government can waive or modify such policies to facilitate access to services by
allowing assisted living waiver services to be initiated upon a “provisional” care plan prior to the
development of a formal care plan. Id.
The Court need not defer to CMS’s interpretation of the issues in this case because
neither 42 U.S.C. § 1396a(a)(34) nor 42 U.S.C. § 1396n(c) is ambiguous. Chevron, 467 U.S. at
842-43. As explained above, the clear language of the statute requires States to provide
retroactive Medicaid benefits to eligible individuals applying for assisted living waiver benefits.
Congress did not waive § 1396a(a)(34) retroactivity for home and community-based services
waivers under § 1396n(c). Nor did Congress limit § 1396a(a)(34)’s retroactivity requirement for
home and community-based services waivers as it did for Qualified Medicare Beneficiaries (42
U.S.C. § 1396d(a)) and Medicaid demonstration waiver projects (42 U.S.C. § 1315(a)(1)). Even
if the relevant statutory provisions were considered silent or ambiguous, CMS’s interpretation is
not warranted deference because it lacks any rationale and is contrary to the clear intent of
Congress.
Generally, courts give deference to the interpretations of an agency tasked with issuing
implementing regulations. Chevron, 467 U.S. at 842-44. However, where the agency’s
interpretations lack the force of law, the Court gives “respect” to such interpretations to the
extent they are persuasive:
To the extent that HHS has issued guidance on the federal Medicaid statutes in the form of opinion letters, an agency manual, and an amicus brief that lack the force of law, its statutory interpretations are not afforded deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), but “are ‘entitled to respect’ under . . . Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944), . . . only to the extent that those interpretations have the ‘power to persuade[.]’” Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000) (internal citation altered); see In re Carter, 553 F.3d 979, 987-88 (6th Cir. 2009) (applying
39

Skidmore to the amicus brief filed by a federal agency charged with administering a statutory scheme); Caremark, Inc. v. Goetz, 480 F.3d 779, 787 (6th Cir. 2007) (applying Skidmore to interpretations of Medicaid statutes set forth by CMS).
Hughes v. McCarthy, 734 F.3d 473, 478 (6th Cir. 2013).
The Court declines to give deference to CMS’s waiver instructions or its response to
Ohio’s 2014 inquiry. Neither squarely addresses the retroactivity issue in the instant case nor
explains the reasoning behind the provision of prospective-only assisted living waiver benefits.
The weight afforded an agency’s interpretation “in a particular case will depend upon the
thoroughness evident in its consideration, the validity of its reasoning, its consistency with
earlier and later pronouncements, and all those factors that give it power to persuade, if lacking
power to control.” Young v. United Parcel Service, Inc., 135 S.Ct. 1338, 1352 (2015) (quoting
Skidmore, 323 U.S. at 140). In this case, defendants have offered no evidence or reasoning in
support of CMS’s purported interpretation. Therefore, the Court cannot conclude that CMS’s
interpretation is reasonable, and the language in CMS’s instructions and Olmstead Update lack
the “power to persuade.” Skidmore, 323 U.S. at 140.
More importantly, CMS’s interpretation is contrary to the statutory language discussed
above and Congress’s intent in passing both the retroactivity provision of § 1396a(a)(34) and the
assisted living waiver provision of § 1396n(c). In authorizing retroactive Medicaid benefits,
Congress intended to protect individuals from situations where they otherwise would be billed
privately despite meeting Medicaid eligibility standards.34 See Debuono, 998 F. Supp. at 196.
34 STAFF OF S. COMM. ON FINANCE, 92D CONG., REP. TO ACCOMPANY H.R. 1 TO AMEND THE SOCIAL SECURITY ACT, AND FOR OTHER PURPOSES, at 209 (September 26, 1972), available at https://www.google.com/?gws_rd =ssl#q=STAFF+OF+S.+COMM.+ON+FINANCE%2C+92D+CONG.%2C+REP.+TO+ACCOMPANY+H.R.+1+T O+AMEND+THE+SOCIAL+SECURITY+ACT%2C+AND+FOR+OTHER+PURPOSES%2C+at+209+%28Septe mber+26%2C+1972%29 (“Thirty-one States have elected to provide this coverage, thereby protecting persons who are eligible for medicaid but do not apply for assistance until after they have received care, either because they did not know about the medicaid eligibility requirements or because the sudden nature of their illness prevented their applying. The committee agrees with the House that such coverage is reasonable and desirable and recommends, as it did in 1970 in HR 17550, that States be required to provide protection for that 3-month period. Therefore, the
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Congress recognized that individuals who were otherwise eligible for Medicaid may not apply
for Medicaid benefits the moment they become sick or receive supportive services, despite
meeting all of the qualifications for the program. Congress also acknowledged the desirability of
providing coverage for medical care and services to Medicaid-eligible individuals prior to an
actual application so as to encourage providers to furnish necessary medical assistance during the
retroactive period.35 CMS’s interpretation runs counter to these dual purposes.
Additionally, CMS’s interpretation thwarts Congress’s intent in enacting the home and
community-based services waiver statute. The Medicaid Act was amended in 1981 to permit
waiver of the then-current definition of “covered medical services” to include “certain
nonmedical support services which are provided pursuant to a plan of care to an individual who
is otherwise at risk of being institutionalized and who would, in the absence of such services be
institutionalized.” S. REP. NO. 97-139, at 432 (1981). Congress noted:
Federal matching under Medicaid is only available for services which are primarily medical in nature. Certain associated services are not eligible for Federal matching payments. However, these services while not strictly medical in nature may in fact contribute to improved health, and could potentially postpone or prevent institutionalization. To the extent that institutionalization is deferred or avoided, certain cost savings may result.
Id. at 481. The passage of the home and community-based services waiver statute was intended
to reduce the cost of Medicaid for the elderly who, by virtue of their institutionalization, utilized
a proportionately higher rate of Medicaid dollars:
Under current law, Medicaid provides little or no coverage for long-term care services in the community, while offering full or partial coverage for such care in
committee bill requires all States to provide coverage for care and services furnished in or after the third month prior to application to those individuals who were otherwise eligible when the services were received. . . .”). 35 Amendments to the Social Security Act 1969-1972: Hearing on H.R. 17550 Before the S. Comm. on Fin., 91st Cong. 1262 (1970) (statement of Elliot L. Richardson, Secretary, Dept. of Health, Education, and Welfare), available at http://www.ssa.gov/history/pdf/Downey%20PDFs/Amendments%20to%20the%20Social% 20Security %20Act%201969-1972%20Vol.%208.pdf.
41

an institution. The Committee is concerned that even though only approximately 6% of the elderly reside in institutions, more than 40% of Medicaid expenditures went for institutional care this year.
It has been estimated that a quarter of the current nursing home population does not need full-time, residential care. Many elderly, disabled and chronically ill persons live in institutions not for medical reasons, but because of the paucity of health and social services in their communities, and their inability to pay for those services or to have them covered by Medicaid when they do exist.
. . .
Under the provisions of this section, states which elect to have home-based care covered by medicaid would be required to develop a community care plan subject to the approval of the Secretary. Under the plan, states would have to provide for a comprehensive assessment of all persons who are eligible or applying for Medicaid coverage for care in a skilled nursing facility (SNF) or an intermediate care facility (lCF; ICF-MR ). The assessment must be a direct and personal one, where the person performing the assessment actually sees and interviews the person applying for care.
This assessment should take place soon after application is made, and should be conducted by trained persons, preferably by a multi-disciplinary team of health and social service workers. This assessment must take into account all the factors, including family supports, community ties, and health and financial factors, relating to the need of the individual for long-term care in a SNF or ICF.
. . .
The Committee views the services under this section as a means of furthering established federal policy of deinstitutionalization and promoting access to community-based services, as evidenced by other federal programs. . . .
. . .
For persons determined to be in need of nursing home level of care who choose, instead, to remain in the community, the State would be required to provide for the development of a written plan of care describing the service needs of the individual and prescribing those services. The committee emphasizes that the ultimate choice about institutional placement rests with the patient and appropriate family members.
H.R. REP. NO. 97-158, vol. II, at 316-320 (1981). See also Arc of California, 757 F.3d at 980
(The HCBS “waiver provision originated in 1981, in response to the fact that a disproportionate
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percentage of Medicaid resources were being used for long-term institutional care and studies showing that many persons residing in Medicaid-funded institutions would be capable of living at home or in the community if additional support services were available.”).
By prohibiting retroactive coverage, Ohio’s assisted living waiver program frustrates Congress’s goal of furthering deinstitutionalization and lowering Medicaid expenditures for individuals who would otherwise require nursing home care but with supportive services can live safely in the community. Because of the delays inherent in Ohio’s post-application processes, individuals are faced with remaining institutionalized in a nursing home or choosing more expensive nursing home care in the first instance while they wait for Ohio to determine their eligibility. But for the financial assistance of family members who were able to front the costs of assisted living services for their mothers, Mrs. Saunders would have had to remain in a nursing home and Mrs. Hilleger would have had to move from her (already Medicaid-approved) assisted living care facility to a nursing home to continue to receive supportive services until Ohio completed the eligibility assessment process. (Doc. 80, ¶ 4; Doc. 81, ¶ 6). Ohio’s program forces low-income individuals whose level of care qualifies them for institutionalization but who lack the family financial support to remain in their assisted living facilities to opt for nursing home care in order to receive Medicaid assistance. This result is contrary to Congress’s purpose of providing assisted living waiver services to avoid institutionalization. Therefore, the Court is not obligated to defer to CMS’s waiver instructions or response to Ohio’s 2014 inquiry as they are “deem[ed] inconsistent with [the] statutory mandate” and “frustrate the congressional policy underlying [the] statute.” Ohio Dept. of Mental Retardation and Dev. Disabilities, 761 F.2d at 1193 (quoting NLRB v. Brown, 380 U.S. 278, 291 (1985)).
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Nor is the Court persuaded that CMS’s “approval” of Ohio’s assisted living waiver application supports defendants’ interpretation of § 1396a(a)(34). Even if CMS’s approval of the assisted living waiver is entitled to Chevron deference, see Harris v. Olszewski, 442 F.3d 456, 470 (6th Cir. 2006), the undersigned cannot accept CMS’s interpretation in this case as it is contrary to the statutory language, purpose, and congressional intent behind the § 1396a(a)(34) retroactivity provision and § 1396n(c)(1) assisted living waiver program. Cf. Lynch v. Lyng, 872 F.2d 718, 724 (6th Cir. 1989) (where “the language of the statute, the broader purposes, and the legislative history argue against the Secretary’s position,” court is not compelled to defer to his interpretation); In re Oliver M. Elam, Jr., Co., 771 F.2d 174, 181 (6th Cir. 1985) (rejecting agency interpretation that has “no support in the plain language of” the relevant provision). Where, as here, the “administrative constructions . . . are contrary to clear congressional intent,” it is the duty of the Court, as “the final authority on issues of statutory construction,” to reject such interpretations. Chevron, 467 U.S. at 843 n.9.
The language of § 1396a(a)(34) and § 1396n(c) is clear and provides that a State must consider an applicant’s eligibility for retroactive assisted living waiver benefits. Even if the language of the statute can be regarded as silent or ambiguous, the legislative history of the Medicaid home and community-based services statute shows that Ohio’s interpretation of the assisted living waiver program contravenes Congress’s intent to provide retroactive Medicaid benefits to individuals who are otherwise eligible for such benefits. Ohio’s interpretation also undermines Congress’s goal of reducing unnecessary institutionalization of individuals who can live safely in the community with supportive services.
The Court acknowledges that the retroactivity requirement set forth in § 1396a(a)(34) will not always be implicated when a person applies for assisted living waiver benefits. The
44

retroactivity requirement of § 1396a(a)(34) will not come into play for individuals who apply for assisted living waiver benefits when they do not already reside in an assisted living facility. However, for individuals who already live in an approved assisted living facility – like Mrs. Hilleger and Mrs. Saunders – and who have been receiving supportive services, the State must retrospectively consider the eligibility requirements for assisted living waiver benefits for the three months prior to the date of application. The State must assess whether, at any time up to three months prior to the application for assisted living waiver benefits, the individual met the financial eligibility requirements; whether the person had a need for intermediate or skilled level of care; and whether the person received supportive services consistent with the plan of care. If so, the State must grant retroactive assisted living waiver benefits in accordance with § 1396a(a)(34).
Therefore, the Court concludes that Ohio’s assisted living waiver program which provides only prospective, and not retroactive, assisted living waiver benefits violates federal law as set forth in 42 U.S.C. § 1396a(a)(34). Summary judgment is granted for plaintiffs on this claim.
B. Whether defendants violated plaintiffs’ due process rights when defendants denied them retroactive coverage for assisted living waiver services and failed to provide written notice of that denial and the reasons for such denial.
Under 42 U.S.C. § 1396a(a)(3), an applicant whose claim for medical assistance under the State plan is denied or is not acted upon with reasonable promptness is entitled to a fair hearing before the State agency. The State agency must notify applicants for Medicaid in writing of their right to a hearing at the time of application and whenever the agency takes “any action affecting [their] claims.” 42 C.F.R. § 431.206(b),(c)(1) and (2). “Action” is defined as “a termination, suspension, or reduction of Medicaid eligibility or covered services.” 42 C.F.R. §
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431.201. The notice must include: (a) a statement of what action the State intends to take; (b) the
reasons for the intended action; (c) the specific regulations that support the action; (d) an
explanation of the individual’s right to request an evidentiary hearing if one is available, or a
State agency hearing; and (e) an explanation of the circumstances under which Medicaid is
continued if a hearing is requested. 42 C.F.R. § 431.210. The right to a hearing and the
attendant processes must meet the due process standards set by the Supreme Court. 42 C.F.R. §
431.205(d) (explicitly incorporating the due process standards of Goldberg v. Kelly, 397 U.S.
254 (1970)).
In this case, the notice received by Mrs. Hilleger states in relevant part:
Your ASSISTED LIVING WAIVER – ODA application dated 10/19/12 has been APPROVED effective 01/01/13. You have been approved for HOME & COMMUNITY BASED SERVICES MEDICAID benefits for the month(s) 01/2013, 02/2013.
Reason: YOU ARE ELIGIBLE UNDER ALL THE RULES. We base this action on OHIO ADMINISTRATIVE CODE, Rule 5101:1-38-01.8.
(Doc. 81, Ex. A). The notice received by Mrs. Saunders states:
We APPROVED your ASSISTED LIVING WAIVER – ODA application of 6/25/2012. Your benefits start 08/02/2012. You will get benefits for 07/2012, and each month after that.
Reason: YOU ARE ELIGIBLE UNDER ALL THE RULES. We base this action on OHIO ADMINISTRATIVE CODE, Rule 5101:1-38-01.8.
(Doc. 80, Ex. B).
Plaintiffs contend that defendants violated their due process rights when defendants
denied them retroactive coverage for assisted living waiver services and failed to provide written
notice of that denial and the reasons for such denial. They allege that neither Mrs. Hilleger nor
Mrs. Saunders received a due process notice detailing the period of time that was not being
covered by assisted living waiver benefits and the reasons why their eligibility began on a certain 46

date, but not before that date. Plaintiffs contend that without the factual information explaining why a particular effective date was selected, they do not have the contextual information needed to evaluate whether there is a basis for disputing the agency’s decision and requesting a hearing.
Defendants contend that because plaintiffs’ assisted living waiver applications were actually approved, they were not entitled to a fair hearing notice under 42 U.S.C. § 1396a(a)(3) or 42 C.F.R. §§ 431.201 and 431.206, which mandate notice only for a denial, termination, suspension or reduction of Medicaid eligibility or covered services. Defendants contend that in any event, they complied with 42 U.S.C. § 1396a(a)(3), the applicable regulations, and due process. Defendants allege the notices provided to plaintiffs advised them not only that their applications had been approved, but also of the effective date of assisted living waiver benefits, information from which plaintiffs could infer they had not been granted retroactive benefits. Defendants state the notice also included information about plaintiffs’ fair hearing rights:
Ask for a State hearing if you disagree with what we are doing or think we are making a mistake. At the hearing, you can explain your reasons and we will explain our reasons. . . . (Doc. 80, Ex. B; Doc. 81, Ex. A) (emphasis in the original). As an initial matter, the Court is not persuaded by defendants’ argument that because they did not deny plaintiffs’ applications for assisted living waiver benefits, but in fact approved the applications, plaintiffs were not entitled to any notice under the Medicaid statute or regulations. Defendants’ argument mistakenly assumes that plaintiffs were never eligible for pre-application assisted living waiver benefits under 42 U.S.C. § 1396a(a)(34), an assumption the Court has rejected. In actuality, defendants approved in part and denied in part plaintiffs’ applications for assisted living waiver benefits, which necessarily encompassed a request for retroactive benefits. To the extent plaintiffs’ applications for retroactive assisted living waiver
47

benefits were denied, plaintiffs were clearly entitled to notice of that denial and a hearing to contest this action. 42 U.S.C. § 1396a(a)(3) (mandating the “opportunity for a fair hearing before the State agency to any individual whose claim for medical assistance under the plan is denied. . . .”). Cf. Ladd v. Thomas, 962 F. Supp. 284, 293 (D. Conn. 1997) (“whenever the defendant’s approval of a written prior authorization request is predicated on a modification of the request which has the effect of reducing what the recipient has requested, the plaintiffs are statutorily entitled to notice that this reduction has been made and notice of the right to appeal the decision to reduce the request”).
Although defendants did issue notices to plaintiffs, as set forth above, those notices are not adequate for purposes of due process. “A primary purpose of the notice required by the Due Process Clause is to ensure that the opportunity for a hearing is meaningful.” City of West Covina v. Perkins, 525 U.S. 234, 240 (1999) (citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). “[T]he explanation of the proposed action and of the reasons for the action must be detailed enough to allow for a meaningful hearing.” See Barry v. Corrigan, 79 F. Supp.3d 712, 2015 WL 136238, at *24 (E.D. Mich. Jan. 9, 2015) (citing Morgan v. United States, 304 U.S. 1, 18 (1938) (“The right to a hearing embraces not only the right to present evidence but also a reasonable opportunity to know the claims of the opposing party and to meet them”); In re Gault, 387 U.S. 1, 33 (1967) (“Notice, to comply with due process requirements . . . must set forth the alleged misconduct with particularity”); Hamby v. Neel, 368 F.3d 549, 561 (6th Cir. 2004) (holding notice of rejection of application for benefits violated due process where applicants were “not adequately informed as to how to fully receive the benefits to which they were entitled . . . nor were they fully apprised of the reasons for denial”)). The notices here fail to advise plaintiffs that they were denied retroactive assisted living waiver benefits for periods
48

during which they were otherwise eligible. Although the effective date set forth in the notice gives some indication that benefits will not be provided before that date, the notice nevertheless fails to explain the reasons or factual basis for this action. Due process requires the notice to state “the specific factual reasons so that plaintiffs may seek to challenge [the] defendant’s view of their eligibility for benefits.” Cherry v. Tompkins, No. 1:94-cv-460, 1995 WL 502403, at *17 (S.D. Ohio Mar. 31, 1995) (finding notice stating a generic reason – “you do not have an appropriate level of care” – along with citation to applicable section of public assistance manual, inadequate as it failed to detail the specific factual reasons supporting proposed termination of Medicaid benefits). Because the notice received by plaintiffs fails to specify with particularity the factual information or reasons for defendants’ denial of retroactive assisted living waiver benefits, it is not adequate notice under the Due Process Clause. Summary judgment is granted for plaintiffs on their due process claim.
C. Whether defendants violated the reasonable promptness requirement of 42 U.S.C. § 1396a(a)(8).
Title 42 U.S.C. § 1396a(a)(8) requires that medical assistance under the Medicaid program “be furnished with reasonable promptness to all eligible individuals.” The corresponding regulation requires that a state agency must “[f]urnish Medicaid promptly to beneficiaries without any delay caused by the agency’s administrative procedures.” 42 C.F.R. § 435.930(a).
Plaintiffs contend that defendants have violated the reasonable promptness requirement of the Medicaid Act “[b]ecause [p]laintiffs never receive Medicaid medical assistance for assisted living services for the period of time prior to the approval of a service plan, even though those services are provided during days or months when other Medicaid-funded services would be covered.” (Doc. 74 at 24, citing Ohio Admin. Code §§ 173-38-03(C)(1)(b)(iv) & (c), 5160-
49

33-04(C)) (emphasis in the original). In other words, plaintiffs claim they are entitled to receive retroactive Medicaid assisted living waiver coverage with reasonable promptness, as in the case of any other Medicaid covered services, and defendants’ actions have deprived them of this right.
Defendants contend that plaintiffs’ argument rests on the incorrect assumption that Ohio’s provision of prospective-only assisted living waiver benefits violates the retroactivity provision of § 1396a(a)(34). Defendants dispute that the timeframe for determining reasonable promptness includes the time prior to the submission of plaintiffs’ applications for assisted living waiver benefits. They argue the relevant timeframe for determining “reasonable promptness” should be calculated from the date of application to the date all of the waiver-specific eligibility criteria were met. Given this timeframe, defendants allege that plaintiffs’ eligibility for assisted living waiver benefits was decided in a timely manner. See 42 C.F.R. § 435.911 (stating agency’s determination of eligibility shall not exceed 90 days for an applicant who applies for Medicaid on basis of disability). Defendants assert that in accordance with this regulation Mrs. Hilleger’s application was processed within 77 days, and Mrs. Saunders’ application was processed within 23 days. (Doc. 89 at 23-24). Defendants also contend that plaintiffs’ applications were determined with reasonable promptness because defendants followed the criteria of the CMS approved waiver and “a state does not violate 42 U.S.C. §1396a(a)(8) by using criteria that formed the basis for CMS’[s] approval of the waiver.” (Doc. 89 at 24, citing Bertrand ex rel. Bertrand v. Maram, 495 F.3d 452, 459 (7th Cir. 2007)).
As an initial matter, the Bertrand case cited by defendants is distinguishable from the instant case. The plaintiffs in Bertrand challenged a state’s priority criteria for limiting enrollment in the state’s HCBS waiver program. The Seventh Circuit noted that the power to limit enrollment is explicitly granted to states by the HCBS statute and held that “[a] state does
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not violate § 1396a(a)(8) by using the criteria that formed (part of) the basis for requesting a waiver under § 1396n(c)(1).” Bertrand, 495 F.3d at 459. Here, in contrast, plaintiffs do not challenge enrollment limits or other § 1396a(a) requirements that are subject to HCBS waiver. As discussed above, the assisted living waiver statute does not permit waiver of the retroactivity requirement of § 1396a(a)(34). Therefore, defendants’ reliance on Bertrand is misplaced.
The Court determines that defendants failed to furnish retroactive assisted living waiver benefits to plaintiffs with reasonable promptness under § 1396a(a)(8). As discussed in Section VI.A., supra, Ohio’s practice of providing prospective-only assisted living waiver benefits violates the retroactivity provision of § 1396a(a)(34). Therefore, to the extent defendants rely on their interpretation of the retroactivity provision to argue they complied with § 1396a(a)(8), their argument is without merit. In addition, while defendants processed plaintiffs’ application within the 90-day limit set forth in the federal regulation, plaintiffs are not challenging the timeliness of the eligibility determinations; rather, plaintiffs challenge the delay in the provision of retroactive assisted living waiver benefits to which they are entitled. As neither plaintiff has received retroactive assisted living waiver benefits “in or after the third month before the month” of their 2012 applications, defendants’ failure to provide such benefits violates the reasonable promptness requirement of § 1396a(a)(8). See Westside Mothers v. Olszewski, 454 F.3d 532, 540 (6th Cir. 2006) (“The regulations that implement [section 1396a(a)(8)] also indicate that what is required is a prompt determination of eligibility and a prompt payment to eligible individuals to enable them to obtain the necessary medical services.”) (citations omitted) (emphasis added). Summary judgment is therefore granted on plaintiffs’ reasonable promptness claim.
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VII. PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION Plaintiffs move for class certification under Fed. R. Civ. P. 23(a) and (b)(2). They seek
to represent a class consisting of “all Ohio individuals who meet the eligibility standards for the assisted living Medicaid waiver for the months occurring no earlier than three months prior to the month of application, but who are denied coverage under the assisted living Medicaid waiver for all or some of those months.” (Doc. 77 at 2). Defendants oppose the motion. They argue that the named plaintiffs are not typical of the class they seek to represent; the named plaintiffs are not adequate representatives of the class; plaintiffs cannot satisfy the numerosity prong of Rule 23(a); and the relief plaintiffs seek is barred by the Eleventh Amendment.
A. Standard for class certification. Rule 23 governs class certification and provides: One or more members of a class may sue . . . as representative parties on behalf of all members only if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a). In addition to the four prerequisites set forth in Rule 23(a), the proposed class must satisfy at least one of the three requirements set forth in Rule 23(b). Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2548 (2011); In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig., 722 F.3d 838, 850 (6th Cir. 2013). Plaintiffs rely on Rule 23(b)(2), which applies when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole. . . .” Fed. R. Civ. P. 23(b)(2). Plaintiffs bear the burden of satisfying the requirements for class certification under Rule 23. In re Whirlpool Corp., 722 F.3d at 851 (citing In re American Med. Sys., Inc., 75 F.3d 1069, 1079 (6th Cir. 1996)). The trial
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court has broad discretion in deciding whether to certify a class, id., and may certify the class if “after a rigorous analysis” it is satisfied that the prerequisites for class certification have been met. Dukes, 131 S.Ct. at 2551; General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 161 (1982).
B. Analysis 1. Numerosity
Rule 23(a)(1) requires that the class be “so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). There is no strict numerical test for determining numerosity. Daffin v. Ford Motor Co., 458 F.3d 549, 552 (6th Cir. 2006); In re American Med. Sys., 75 F.3d at 1079. See, e.g., Smith v. Ajax Magnethermic Corp., No. 4:02-cv-980, 2007 WL 3355080, at *2 (N.D. Ohio Nov. 7, 2007) (certifying class of 55 former employees where damages suffered by each member were relatively small, lessening possibility of litigation of individual claims). However, the “sheer number of potential litigants in a class, especially if it is more than several hundred, can be the only factor needed to satisfy [numerosity].” Bacon v. Honda of America Mfg., Inc., 370 F.3d 565, 570 (6th Cir. 2004). Only a “reasonable estimate or some evidence of the number of class members” is required. Bentley v. Honeywell Intern., Inc., 223 F.R.D. 471, 480 (S.D. Ohio 2004).
“The reason for [the impracticability] requirement is obvious. Only when joinder is impracticable is there a need for a class action device.” In re American Med. Sys., 75 F.3d at 1079 (quoting 1 Herbert B. Newberg & Alba Conte, Newberg on Class Actions, § 3.01, at 3-4 (3d ed. 1992)). Thus, “[t]he key to determining whether certification is appropriate under Rule 23(a)(1) rests on the impracticability of joinder.” Ledford ex rel. Epperson v. Colbert, No. 1:10cv-706, 2012 WL 1207211, at *3 (S.D. Ohio April 11, 2012) (citing In re American Med. Sys.,
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75 F.3d at 1079). “Numerous factors play into the impracticability of joinder, including ‘the size of the proposed class, geographic dispersion and financial resources of class members, and judicial economy.’” Id. (quoting Prater v. Ohio Educ. Ass’n, No. 2:04-cv-1077, 2008 WL 2566364, at *2 (S.D. Ohio June 26, 2008)).
Plaintiffs assert the numerosity requirement is met here because there are hundreds of people in the proposed class. (Doc. 77 at 9-11). In support of this assertion, plaintiffs present an “enrollment tracking list,” which is a tracking device used by defendants for identifying applicants for assisted living waiver services and enrollment of those applicants. See Doc. 91, Exs. V, AA. Plaintiffs present evidence that between February 4, 2014 and August 6, 2014, there were 211 applicants placed on the enrollment tracking list who were waiting for a Medicaid financial determination and who were later enrolled in the assisted living waiver program. See id.; Doc. 84, ¶ 5, Decl. of Kimberly A. Cannon. Plaintiffs also cite to the deposition testimony of Matthew Hobbs, the Chief of the Division of Community Living of the Ohio Department of Aging. (Doc. 89, Ex. 4, ¶ 2, Decl. of Matthew Hobbs). Mr. Hobbs estimated that at the time of his deposition in 2013, over 4,000 individuals were enrolled in Ohio’s assisted living waiver program. (Doc. 93, Ex. W). Data from 2014 shows enrollment ranged from 2,442 to 4,317 individuals. (Doc. 77, Ex. A).
Defendants contend that the evidence plaintiffs rely upon is misleading because it focuses on a single eligibility requirement for enrollment in the assisted living waiver program, i.e., financial eligibility, and ignores the remaining enrollment criteria. They argue that the enrollment tracking list is merely a workflow tool for the Ohio state agency responsible for determining the non-financial eligibility requirements of the assisted living waiver program and it does not demonstrate “when an individual met the eligibility requirements for enrollment on
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the [w]aiver.” (Doc. 105 at 9). Because the information from the enrollment tracking list can change at any time, defendants contend the list does not demonstrate when an individual was enrolled in the assisted living waiver program. Defendants also take issue with plaintiffs’ reliance on Mr. Hobbs’ deposition testimony. They argue that it does not establish when an applicant was enrolled in the waiver program and that many members of the proposed class could therefore be barred from bringing claims by the statute of limitations or res judicata. (Id. at 9-10).
The Court is not persuaded by defendants’ argument that the tracking list does not reflect the number of people in the proposed class because it does not show “when an individual met the eligibility requirements for enrollment on the waiver.” (Id. at 9). Although the tracking list does not show the date when an applicant was finally “enrolled” in the assisted living waiver program under defendants’ rules, plaintiffs do not rely on the date of enrollment to show numerosity. Rather, plaintiffs rely on the fact that applicants routinely face delays as a result of defendants’ process for determining eligibility for assisted living waiver benefits to demonstrate numerosity. The very nature of defendants’ enrollment process ensures there are gaps in coverage for all applicants for assisted living waiver benefits except in one instance: when all other non-financial eligibility criteria, including level of care assessment and service plan, are assessed on the date of or prior to the assessment of financial eligibility for assisted living waiver benefits. (Doc. 91-1, Ex. Z, Roberts Depo. at 21). These are the only applicants for whom the effective date for assisted living waiver benefits will be the same as the effective date for basic Medicaid. (Doc. 91-1, Ex. Z, Roberts Depo. at 21). Extrapolating from the tracking list, which provides a snapshot of those whose applications for assisted living waiver benefits are on hold pending further action by defendants, the Court is satisfied that the number of applicants who experience
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delays, and therefore gaps, in the provision of assisted living waiver benefits are sufficient such
that joinder is impracticable. See Senter, 532 F.2d at 523 (court may consider reasonable
inferences drawn from facts that a class is sufficiently numerous to make joinder impracticable).
The other evidence submitted by plaintiffs indicates that the number of individuals
enrolled in Ohio’s assisted living waiver program is in the thousands and defendants’ rules
forbidding retroactive coverage under the Medicaid assisted living waiver program apply
uniformly across the board.36 Importantly, the putative class members are elderly individuals
who by the nature of their advanced age have significant cognitive and/or physical limitations.
Given the declining health and limited financial resources of these individuals, filing lawsuits on
their own is impracticable. Ledford, 2012 WL 1207211, at *4. In addition, joinder of such
individuals in this lawsuit would be impractical. In a case involving a similar population of
Medicaid assisted living waiver individuals, this Court recognized that:
[T]he very delicate health of the proposed class members indicates how impractical joinder would be: individual members may be likely to move in or out of the class, as they can easily fall so ill as to require nursing home care, or even die. A suit would be constantly interrupted as new members were joined to the suit and other parties would necessarily be removed. Additionally, Defendant’s policy uniformly affects individuals throughout the state of Ohio. . . .
Id. at *4.
The Court therefore concludes that plaintiffs have satisfied the numerosity requirement of
Rule 23(a)(1).
2. Commonality
Rule 23(a)(2) mandates the existence of “questions of law or fact common to the class.”
Fed. R. Civ. P. 23(a)(2). “The commonality test is qualitative rather than quantitative” in that
36Insofar as defendants challenge plaintiffs’ reliance on Mr. Hobbs’ deposition testimony because many of these thousands of enrollees may be precluded from bringing claims, defendants do not explain this assertion. In any event, the Court is satisfied that even if some of the claims of proposed class members would be barred, the number of individuals in the assisted living waiver program is sufficient to meet the numerosity requirement.
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“there need be only a single issue common to all members of the class.” In re American Med. Sys., 75 F.3d at 1080 (quotation omitted).
The class-action was designed as an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only. Class relief is peculiarly appropriate when the issues involved are common to the class as a whole and when they turn on questions of law applicable in the same manner to each member of the class. For in such cases, the class-action device saves the resources of both the courts and the parties by permitting an issue potentially affecting every class member to be litigated in an economical fashion under Rule 23. Id. (quoting General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 155 (1982) (internal citations and quotations omitted)). Plaintiffs must show that class members have suffered the same injury to establish the commonality requirement of Rule 23(a). Dukes, 131 S.Ct. at 2551. “Their claims must depend upon a common contention . . . of such a nature that it is capable of classwide resolution – which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. “This inquiry focuses on whether a class action will generate common answers that are likely to drive resolution of the lawsuit.” In re Whirlpool Corp., 722 F.3d at 852 (citing Dukes, 131 S.Ct. at 2551). There are questions of law common to all of the proposed class members. All have been denied Medicaid coverage for assisted living services for time periods prior to their formal enrollment in the waiver program as a result of defendants’ regulations. The issue of law common to all class members is whether Ohio’s interpretation of the assisted living waiver statute as providing only prospective Medicaid benefits violates the federal provision mandating retroactive Medicaid “in or after the third month before the month” in which an individual made an application. Likewise, common questions of law exist as to whether Ohio’s delay in providing retroactive assisted living waiver benefits violates 1396a(a)(8), and whether
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defendants’ notices which fail to specify eligibility for retroactive assisted living waiver benefits violate due process and 42 U.S.C. § 1396a(a)(3).
Resolution of plaintiffs’ claims will advance the litigation as a whole and affect each member of the class. A classwide proceeding will “generate common answers” as to whether defendants’ policies permitting only prospective assisted living waiver benefits violate 42 U.S.C. § 1396a(a)(34). Dukes, 131 S.Ct. at 2551; In re Whirlpool Corp., 722 F.3d at 852. Therefore, the Court finds the commonality requirement is satisfied.
3. Typicality Rule 23(a)(3) requires that “the claims or defenses of the representative parties [be] typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). A claim is typical if “it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and if his or her claims are based on the same legal theory.” In re American Med. Sys., 75 F.3d at 1082 (quoting 1 Newberg, supra, § 3-13, at 3-76 (footnote omitted)). The typicality prerequisite “determines whether a sufficient relationship exists between the injury to the named plaintiff and the conduct affecting the class, so that the court may properly attribute a collective nature to the challenged conduct.” Id. “The premise of the typicality requirement is simply stated: as goes the claim of the named plaintiff, so go the claims of the class.” Sprague v. General Motors Corp., 133 F.3d 388, 399 (6th Cir. 1998) (holding that typicality is not established where resolution of a named plaintiff’s claim would not “necessarily have proved anybody else’s claim.”). Defendants argue that certification is inappropriate because plaintiffs’ claims are atypical of the putative class members. First, defendants assert that the named plaintiffs lack standing to pursue their claims and will therefore face “hurdles” not shared by the proposed class members.
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(Doc. 105 at 5). Second, defendants argue that the named plaintiffs’ claims are not typical of the proposed class because neither plaintiff has a need for prospective relief; rather, plaintiff Hilleger is deceased and plaintiff Saunders is in a nursing care facility and is no longer receiving assisted living waiver benefits. Defendants further argue that because plaintiffs have no interest in prospective relief, they lack the incentive to pursue legal arguments necessary to protect the interests of the absent putative class members. Additionally, defendants maintain that plaintiffs’ claims for monetary damages are precluded by the Eleventh Amendment, which bars a retroactive award of monetary relief to plaintiffs. (Id. at 4-6, 8).
Defendants made these same arguments in connection with their motion for summary judgment. For the reasons previously set forth in this Order on the parties’ cross-motions for summary judgment, defendants’ arguments are unpersuasive. As explained above, the Eleventh Amendment poses no bar to plaintiffs’ claims for declaratory and injunctive relief, which are prospective in nature, see Quern, 440 U.S. at 337, and the named plaintiffs have standing to challenge the ongoing violations of federal law alleged in the amended complaint. Mrs. Hilleger’s § 1983 claims survive her death under Ohio law, and Mrs. Saunders’ claims are not mooted by her departure from an approved assisted living facility. To the extent defendants argue that plaintiffs do not represent the proposed class members because they did not meet the waiver eligibility requirements “until the date their basic Medicaid was determined” (Doc. 105 at 6), this argument is not well-taken. Defendants’ argument hinges on the validity of defendants’ eligibility requirements, which violate federal law as explained in the Court’s ruling on the summary judgment motions.
The third typicality challenge raised by defendants relates to the timeliness of plaintiffs’ claims. Defendants assert that because some of the putative class claims extends back in time to
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2006 when the first assisted living waiver was approved for Ohio, some class members’ claims would be barred by the two-year statute of limitations governing § 1983 claims. Defendants note that the named plaintiffs filed their claims within the two-year statute of limitations, so their claims are not typical of the time-barred claims of proposed class members. Defendants further note that different waiver eligibility requirements existed prior to September 29, 2011, and they allege that plaintiffs lack the incentive to seek relief for the putative class members for whom different eligibility criteria applied. (Doc. 105 at 6).
“The existence of defenses against certain class members does not defeat typicality. Typical does not mean identical, and the typicality requirement is liberally construed.” Hendricks v. Total Quality Logistics, LLC, 292 F.R.D. 529, 542 (S.D. Ohio 2013) (internal citations and quotations omitted). Arguments similar to those raised by defendants have been repeatedly rejected by courts in this and other circuits. Id. (existence of judicial estoppel and statute of limitations defenses against putative class members did not destroy typicality). See also Boggs v. Divested Atomic Corp., 141 F.R.D. 58, 66 (S.D. Ohio 1991) (rejecting the defendants’ argument in support of denying class certification where the plaintiffs and the proposed class members’ claims would be subject to different defenses, such as a statute of limitations defense, because “the named plaintiffs ha[d] asserted claims both typical of the other class members, and subject to typical defenses.”); Ludwig v. Pilkington North America, Inc., No. 03C1086, 2003 WL 22478842, at *3 (N.D. Ill. Nov. 4, 2003) (holding that typicality was not destroyed where a statute of limitations defense was not peculiar to the named plaintiff). Though some proposed class members’ claims may be barred by the applicable two-year statute of
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limitations,37 this does not present a basis for denying plaintiff’s class certification motion. In addition, while Ohio’s regulations may have changed over the years, defendants’ practice of providing prospective-only assisted living waiver benefits has been consistent.
Fourth, defendants argue that the claims of the named plaintiffs are not typical of those of any putative class members that may be barred by the doctrines of res judicata and/or collateral estoppel. (Doc. 105 at 6-7). Defendants do not explain how the potential for issue or claim preclusion affects the issue of typicality, and the Court is unaware of any authority supporting denial of a class certification motion on this ground. Cf. Thompson v. Jiffy Lube Intern., Inc., 250 F.R.D. 607, 624 (D. Kan. 2008) (denying motion to certify class for lack of typicality where the named plaintiff’s claim was likely barred by res judicata because she was a member of a previous settlement class involving the same defendant and similar claims); Wren v. Cigna Healthcare of Virginia, Inc., No. 7:05-cv-344, 2006 WL 344801, at *6 (W.D. Va. Feb. 15, 2006) (similarly holding that class certification was inappropriate where the named plaintiff’s claim was barred by res judicata because she would not be able to adequately represent the interests of the proposed class). There is no contention here that the named plaintiffs’ claims are precluded by res judicata or collateral estoppel such that their claims are atypical of those of the proposed class members. Therefore, plaintiffs’ motion will not be denied on this basis.
The claims of the named plaintiffs here are identical to those of the proposed class members.38 The claims stem from the same Ohio rules and practices that deny retroactive
37The Court notes that the statute of limitations on a putative class member’s claims is tolled from the timely filing of a class action complaint to the denial of the motion for class certification. See American Pipe & Constr. Co. v. Utah, 414 U.S. 538, 554 (1974). See also Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345, 354 (1983); Phipps v. Wal-Mart Stores, Inc., __ F.3d __, 2015 WL 4079441, at *4 (6th Cir. July 7, 2015). 38 The Court has not considered plaintiffs’ submission of affidavit evidence from putative class members in ruling on the motion for class certification. Therefore, defendants have not been prejudiced by plaintiffs’ submission of this evidence.
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assisted living waiver coverage, fail to provide notice advising of the denial of retroactive waiver benefits, and fail to provide benefits with reasonable promptness as required by the Medicaid Act. Plaintiffs’ interests are aligned with those of the putative class, and the injunctive and declaratory relief sought will inure to the benefit of all class members. The Court concludes plaintiffs have established that the proposed class meets the typicality requirement of Rule 23(a)(3).
4. Adequacy of Representation Under Rule 23(a)(4), plaintiffs must demonstrate that “the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). The Sixth Circuit has “articulated two criteria for determining adequacy of representation: ‘1) the representative[s] must have common interests with unnamed members of the class, and 2) it must appear that the representatives will vigorously prosecute the interests of the class through qualified counsel.’” In re American Med. Sys., 75 F.3d at 1083 (quoting Senter, 532 F.2d at 525). “The adequate representation requirement overlaps with the typicality requirement because in the absence of typical claims, the class representative has no incentives to pursue the claims of the other class members.” Id. Defendants assert many of the same arguments to challenge plaintiffs’ ability to adequately represent the class as they did in connection with the typicality prong of Rule 23(a). See Doc. 105 at 4-8. For the reasons discussed above in connection with Rule 23(a)(3)’s typicality requirement, defendants’ challenges to the adequacy of the named plaintiffs as representatives of the proposed class are unpersuasive. The named plaintiffs’ interests are coextensive with those of the class. The named plaintiffs challenge defendants’ uniform policy and practice of denying retroactive assisted living waiver benefits to all who apply for such
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benefits. In addition, there is no indication that plaintiffs’ interests are antagonistic to those of the putative class members. The Court concludes that plaintiffs will fairly and adequately protect the interests of the class.
5. Rule 23(b)(2) Criteria In addition to satisfying the criteria of Rule 23(a), plaintiffs must also demonstrate that their proposed class meets one of the requirements of Fed. R. Civ. P. 23(b). See Dukes, 131 S.Ct. at 2548; In re Whirlpool Corp., 722 F.3d at 850. Plaintiffs rely on Rule 23(b)(2), which requires that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). Plaintiffs assert they meet the criteria of Rule 23(b)(2) because the proposed class “has been subjected to a common set of practices for which [they] seek only injunctive and declaratory relief.” (Doc. 77 at 4). Plaintiffs explain that defendants’ “refusal to grant retroactive [assisted living waiver] eligibility affects all class members as well as the [n]amed [p]laintiffs” and that a single injunction and declaratory judgment will provide relief to each class member. (Id. at 17). Defendants do not challenge plaintiffs’ assertion that this matter meets the criteria of Rule 23(b)(2). The “key to the [Rule 23](b)(2) class is ‘the indivisible nature of the injunctive or declaratory remedy warranted – the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.’” Dukes, 131 S.Ct. at 2557 (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132 (2009)). Put simply, “Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not
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authorize class certification when each individual member would be entitled to a different injunction or declaratory judgment against the defendant.” Id. at 2557.
This matter is appropriate for class certification under Rule 23(b)(2). All members of the class are affected by defendants’ systemic practice of denying retroactive benefits to all assisted living waiver beneficiaries. Additionally, plaintiffs seek a declaratory judgment that defendants are in violation of the Medicaid Act and the due process clause. Plaintiffs also seek injunctive relief ordering defendants to refrain from denying Medicaid assisted living waiver coverage to otherwise eligible plaintiffs for up to three months prior to the month of application and to modify their policies and practices to achieve this relief. The requested declaratory and injunctive relief will apply uniformly to all class members, regardless of the unique situation of any individual plaintiff. Accordingly, plaintiffs’ proposed class is appropriate for certification under Rule 23(b)(2). See Dozier, 2014 WL 5483008, at *24-25 (granting class certification under Rule 23(b)(2) where the plaintiffs, representing a class of Medicaid beneficiaries, sought uniform injunctive and declaratory relief).
6. Appointment of Class Counsel Plaintiffs additionally move the Court to certify their attorneys as class counsel under Fed. R. Civ. P. 23(g). The Court may appoint plaintiffs’ attorneys as class counsel only if they are deemed adequate under Rule 23(g)(1) and (4). Fed. R. Civ. P. 23(g)(2). In making this determination, the Court “must consider: (i) the work counsel has done in identifying or investigating potential claims in the action; (ii) counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (iii) counsel’s knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the class.”
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Fed. R. Civ. P. 23(g)(1)(A)(i)-(iv). In addition, “[c]lass counsel must fairly and adequately represent the interests of the class.” Fed. R. Civ. P. 23(g)(4).
Plaintiffs assert their counsel qualify for appointment as exemplified by counsel’s efforts in briefing plaintiffs’ motions for summary judgment and class certification. Plaintiffs contend counsel expended extensive time and resources to investigate and analyze their claims. Plaintiffs further assert that their attorneys have substantial experience in class action and complex litigation, as well as extensive knowledge of discrimination and benefits law. (Doc. 77 at 18). Plaintiffs support their argument with counsel’s affidavits and attestations regarding their litigation experience. See Docs. 84-88. Defendants do not dispute the adequacy of plaintiffs’ counsel.
The Court finds that the Rule 23(g)(1) factors support appointing plaintiffs’ attorneys as class counsel. First, the work performed by plaintiffs’ counsel before this Court, including their work on the instant motions for class certification and for summary judgment and at oral argument, demonstrates that they diligently investigated and analyzed the potential claims in this matter. Second, the affidavit evidence put forth by plaintiffs’ counsel demonstrates their experience in litigating class actions and other complex litigation in federal courts across the nation, including class actions involving thousands of Medicaid beneficiaries. Third, counsel’s affidavit evidence and their briefings before this Court establish that their knowledge of the federal and state laws at issue here is more than adequate. Fourth, the work of plaintiffs’ counsel to date indicates they have sufficient resources committed to this matter to vigorously advocate on behalf of the members of the proposed class. Finally, the work performed by plaintiffs’ counsel before this Court demonstrates beyond a doubt that counsel will fairly and adequately
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represent the interests of the class in their prosecution of this lawsuit. See Fed. R. Civ. P. 23(g)(4).
For these reasons, the Court finds that plaintiffs’ counsel will fairly and adequately represent the interests of the class. The Court therefore grants plaintiffs’ motion to appoint their attorneys as class counsel. VIII. CONCLUSION
For the reasons stated above, plaintiffs’ motion for class certification and appointment of class counsel (Doc. 77) is GRANTED. Plaintiffs’ current counsel is hereby APPOINTED to serve as class counsel. The following class is certified:
All Ohio individuals who meet the eligibility standards for the assisted living Medicaid waiver for the months occurring no earlier than three months prior to the month of application, but who are denied coverage under the assisted living Medicaid waiver for all or some of those months. For the reasons discussed above, plaintiffs’ motion for summary judgment (Doc. 74) is GRANTED, and defendants’ motion for summary judgment (Doc. 89) is DENIED. The Court finds that Ohio’s regulations which prohibit assisted living waiver benefits for up to three months prior to the month of application for individuals who were eligible for coverage at the time those services were furnished violate the retroactivity provision of 42 U.S.C. § 1396a(a)(34). The Court also finds that defendants’ failure to notify applicants for assisted living waiver benefits that they are being denied coverage for months in which they met the eligibility requirements and the reasons for such action violates 42 U.S.C. § 1396a(a)(3) and the Due Process Clause. The Court further finds that defendants’ failure to provide plaintiffs and the class with retroactive Medicaid assisted living waiver coverage to which they are otherwise entitled violates the reasonable promptness requirement of 42 U.S.C. § 1396a(a)(8).
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Defendants are hereby enjoined: (1) from denying plaintiffs and the class eligibility for Medicaid assisted living waiver benefits for months in which they are determined to meet eligibility standards, for as early as three months prior to the month in which application is made, and to modify their policies and practices to achieve this relief; and (2) to identify and provide written notice to plaintiffs and all class members that their Medicaid assisted living waiver coverage will begin on the first day of the month in which they meet all eligibility criteria, up to three months prior to the month of application, with a notice advising them of the state administrative procedure, compliant with due process requirements, available if they desire to have defendants determine whether or not they may be eligible for additional days of Medicaid assisted living waiver coverage.
IT IS SO ORDERED.

Date: 9/1/2015

s/Karen L. Litkovitz Karen L. Litkovitz United States Magistrate Judge

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 Case: 1:13-cv-00074-KLL Doc #: 124 Filed: 09/30/15 Page: 1 of 6 PAGEID #: 2084

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

KATHRYN A. PRICE, et al.,

:

:

CASE NO. 1:13-CV-74

Plaintiffs,

:

:

MAGISTRATE JUDGE LITKOVITZ

v.

:

:

DIRECTOR, OHIO DEPARTMENT :

OF MEDICAID, et al.,

:

:

Defendants.

:

______________________________________________________________________________

DEFENDANTS’ MOTION FOR STAY OF THE COURT’S ORDER (DOC. 121) PENDING APPEAL

Defendants John B. McCarthy, Director of the Ohio Department of Medicaid, and Bonnie Kantor-Burman, Director of the Ohio Department of Aging, move this Court to stay the declaratory and injunctive relief that it ordered (see doc. 121), pending the resolution of Defendants’ appeal to the United States Court of Appeals for the Sixth Circuit. This stay is necessary to protect the safety of Assisted Living Waiver applicants, and to comply with the waiver as described by Congress.
As with any Medicaid Waiver program, the Assisted Living Waiver to which Plaintiffs applied allows the State to relax some Medicaid requirements. In this case, the Waiver allowed Plaintiffs access to services without comparable services being available to all Medicaid recipients. See 42 U.S.C. § 1396a(a)(10)(B). In exchange for that flexibility, federal law imposes other requirements on the provision of waiver services. These additional requirements ensure that services provided only to a subset of Medicaid recipients are offered in a safe and
1

Case: 1:13-cv-00074-KLL Doc #: 124 Filed: 09/30/15 Page: 2 of 6 PAGEID #: 2085
medically appropriate way. Among other requirements, federal law requires Assisted Living Waiver services to be provided “pursuant to a written plan of care” only after “there has been a determination that but for the provision of such services the individuals would require the level of care provided in a hospital or a nursing facility . . . .” 42 U.S.C. § 1396n(c)(1).
The Court’s order upends the tradeoff described by Congress and requires the State to pay for services that are provided before a plan of care exists, and before anyone has determined that the applicant requires a level of care appropriate for the Assisted Living Waiver. In so doing, it puts some Assisted Living Waiver applicants at risk. It requires the State and federal governments to pay for care for vulnerable Ohioans without having a plan of care in place. A plan of care ensures that waiver participants get the full range of services that they need. Without a plan, recipients may receive unsafe or incomplete care that puts them at risk.
By requiring payment for services provided “pursuant to” a plan of care that does not yet exist, this Court’s order undercuts the federal regulatory scheme, including carefully crafted safety precautions. For those reasons alone, this Court should stay its order.
A. Standard of Review This Court has discretion to grant a stay of its order pending appeal when “the circumstances of the particular case” warrant. Nken v. Holder, 556 U.S. 418, 433 (2009) (quoting Virginian R. Co. v. United States, 272 U.S. 658, 672-3 (1926)). The Court should consider 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.
2

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Id. at 434 (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)); see also Ohio State Conf. of N.A.A.C.P. v. Husted, 769 F.3d 385, 387 (6th Cir. 2014). In this case, each factor suggests that a stay is warranted.
B. Defendants are likely to succeed on the merits of their appeal. This Court’s decision on the merits of Plaintiffs’ claims flows from its conclusion that the statutory requirement that waiver services be “provided pursuant to a written plan of care” unambiguously means that the State must pay retroactively for services provided when no written plan of care exists, but that fall within the bounds of a plan that is created later. Even if the Court’s interpretation of the words “pursuant to” is plausible, it is not the only possible, unambiguously correct interpretation. As the Centers for Medicare and Medicaid Services (“CMS”) confirmed, a more natural reading of the statute is that services cannot be “provided pursuant to a written plan of care” until that plan of care exists. For that reason, Defendants are likely to prevail in arguing that the Court erred by giving CMS guidance no weight. Nearly every other conclusion in the Court’s Order flows from this error. Because it erroneously concluded that the Defendants had violated clear federal law, the Court allowed plaintiffs to amend their complaint at the eleventh hour in a response memorandum in opposition to Defendants’ motion for summary judgment. The Court certified a vaguely defined class that extends indefinitely into the past and future, and ordered Defendants to meet Plaintiffs’ burden of identifying the members of the class. For these reasons and others, Defendants are likely to prevail in their appeal. C. The relief ordered by the Court cannot be simply undone should Defendants
prevail on appeal. Absent a stay, the Court’s order will irreparably harm Defendants. The injunctive relief ordered by the Court has two elements. First, though no named
3

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Plaintiffs or class members identified by the named Plaintiffs have asserted any intent to apply for the Assisted Living Waiver in the future, the Court ordered that future Assisted Living Waiver applications must receive retroactive coverage even when no plan of care existed and no level of care determination had been made at the time care was provided. Second, reaching indefinitely into the past, the Court ordered that all past applicants receive notice of the new rule announced by the Court and have their eligibility re-determined in accordance with that rule.
The stay should be granted as to both the prospective and retrospective injunctions for the same reason: The bell rung by the Court’s order cannot be simply un-rung. If Defendants pay for the services pursuant to this Court’s order and then prevail in their appeal, it will be difficult or impossible to recover those payments. And the cost of the mass notice alone will be substantial.
D. The stay will not substantially injure named Plaintiffs or members of the class. Some class members will benefit by keeping the safeguards urged by CMS in place. For this same reason the stay is in the public interest.
The named Plaintiffs are an executrix of an applicant’s estate and a next friend of an applicant. If the stay is granted, neither the estate nor the next friend will get the monetary payments they seek as quickly as they would like—and ultimately, it is payment for services that they seek. Plaintiffs have paid for care provided during a period in which the State determined they were not yet eligible for the Assisted Living Waiver, and they seek to recover those payments. But a delay in payment is more than offset by the benefit to Assisted Living Waiver applicants of the safeguards that this Court’s order would undo. CMS, the federal agency that oversees the Medicaid program, reasonably reads federal law to require that a plan of care exist and a level of care determination be completed before services may be provided under the Assisted Living Waiver. These requirements promote the safety of all applicants. They do not allow the State and federal governments to pay for services that do not follow an existing plan of
4

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care that ensures adequate and safe care for Assisted Living Waiver recipients.

For this same reason, a stay is in the public interest. Because CMS’s interpretation of

Medicaid law promotes the safety of Assisted Living Waiver applicants, this Court should allow

the case to be heard by the Court of Appeals before forcing the State to follow a path that goes

against CMS’s guidance.

E. Conclusion

For the foregoing reasons this Court should grant Defendants’ motion and stay its Order

(doc. 121) pending the resolution of Defendants’ appeal to the Sixth Circuit Court of Appeals.

Respectfully Submitted,

MICHAEL DeWINE (0009181) Ohio Attorney General

/s/ Cheryl R. Hawkinson

.

CHERYL R. HAWKINSON (0055429)*

*Trial Attorney

AMY R. GOLDSTEIN (0015740)

Assistant Attorneys General

Health and Human Services Section

30 East Broad Street, 26th Floor

Columbus, Ohio 43215

cheryl.hawkinson@ohioattorneygeneral.gov

amy.goldstein@ohioattorneygeneral.gov

Phone:(614) 466-8600

Fax: (614) 466-6090

Attorneys for Defendants John B. McCarthy, Director of the Ohio Department of Medicaid, and Bonnie Kantor-Burman, Director of the Ohio Department of Aging

5

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Certificate of Service I certify that on this 30th of September 2015, a copy of the foregoing Motion to Stay was filed electronically with the Clerk of the Court. 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/ Cheryl R. Hawkinson

.

CHERYL R. HAWKINSON

6

 
 Case: 1:13-cv-00074-KLL Doc #: 143 Filed: 09/30/16 Page: 1 of 16 PAGEID #: 2493 (1 of 16)

Deborah S. Hunt 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: September 30, 2016
Mr. William Joseph Browning Browning, Meyer & Ball 8101 N. High Street, Suite 370 Columbus, OH 43235
Ms. Ashley Shannon Burke Mr. Peter Leroux Cassady Ms. Janet E. Pecquet Beckman Weil Shepardson 300 Pike Street, Suite 400 Cincinnati, OH 45202
Mr. Eric Matthew Carlson Justice in Aging 3660 Wilshire Boulevard, Suite 718 Los Angeles, CA 90010
Mr. Jeffrey A. Clair U.S. Department of Justice Civil Division, Appellate Staff 950 Pennsylvania Avenue, N.W. Room 9536 Washington, DC 20530
Ms. Amy Robbins Goldstein Ms. Cheryl Rae Hawkinson Mr. Jeffrey P. Jarosch Office of the Attorney General Health & Human Services Section 30 E. Broad Street, 26th Floor Columbus, OH 43215
Mr. Richard F. Meyer 4303 Cleveland Avenue Columbus, OH 43224-0000

Case: 1:13-cv-00074-KLL Doc #: 143 Filed: 09/30/16 Page: 2 of 16 PAGEID #: 2494 (2 of 16)

Ms. Anna Rich Justice in Aging 1330 Broadway, Suite 525 Oakland, CA 94612
Ms. Carol Rolf Rolf Goffman Martin Lang 30100 Chagrin Boulevard, Suite 350 Cleveland, OH 44124-5705
Re: Case No. 15-4066, Price, et al v. Medicaid Dir, Office of Med, et al Originating Case No. : 1:13-cv-00074
Dear Counsel,
The court today announced its decision in the above-styled case.
Enclosed is a copy of the court's opinion together with the judgment which has been entered in conformity with Rule 36, Federal Rules of Appellate Procedure.
Yours very truly,
Deborah S. Hunt, Clerk

cc: Mr. Richard W. Nagel Enclosures Mandate to issue.

Cathryn Lovely Deputy Clerk

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RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 16a0245p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT _________________

KATHRYN A. PRICE, et al.,

┐

Plaintiffs-Appellees,

│ │

v.

││>

│ MEDICAID DIRECTOR, Office of Medical Assistance, │

et al.,

│

Defendants-Appellants. │ ┘

No. 15-4066

Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 1:13-cv-00074—Karen Litkovitz, Magistrate Judge.

Argued: April 28, 2016

Decided and Filed: September 30, 2016

Before: BOGGS and KETHLEDGE, Circuit Judges; STAFFORD, District Judge.*

_________________

COUNSEL
ARGUED: Jeffrey Clair, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Amicus Curiae. Jeffrey P. Jarosch, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellants. Eric M. Carlson, JUSTICE IN AGING, Los Angeles, California, for Appellees. ON BRIEF: Jeffrey Clair, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Amicus Curiae. Jeffrey P. Jarosch, Cheryl R. Hawkinson, Amy R. Goldstein, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellants. Eric M. Carlson, JUSTICE IN AGING, Los Angeles, California, Anna M. Rich, JUSTICE IN AGING, Oakland, California, Janet E. Pecquet, Peter L. Cassady, Ashley S. Burke, BECKMAN WEIL SHEPARDSON LLC, Cincinnati, Ohio, for Appellees. Carol Rolf, ROLF GOFFMAN MARTIN LANG LLP, Cleveland, Ohio, William J. Browning, BROWNING & MEYER CO., LPA, Worthington, Ohio, for Amici Curiae.

*The Honorable William H. Stafford, Jr., Senior United States District Judge for the Northern District of Florida, sitting by designation.

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_________________
OPINION _________________
KETHLEDGE, Circuit Judge. Ohio offers assisted-living coverage to its Medicaid beneficiaries on a prospective basis. The plaintiffs here, a class of Ohio Medicaid beneficiaries, sued Ohio’s Medicaid administrators on the claim that federal law requires Ohio to cover certain assisted-living services retrospectively. The district court granted summary judgment to the plaintiffs. We reverse.
I.
A.
In 1965, Congress used its Spending Clause power to establish Medicaid. See U.S. Const. art. I, § 8, cl. 1. Through Medicaid, the federal government gives money to the States for the purpose of paying the medical costs of people “whose income and resources are insufficient to meet the costs of necessary medical services[.]” 42 U.S.C. § 1396-1. The money comes with strings attached. “Like other Spending Clause legislation, Medicaid offers the States a bargain: Congress provides federal funds in exchange for the States’ agreement to spend them in accordance with congressionally imposed conditions.” Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1382 (2015).
Per Congress’s conditions, all State Medicaid plans must apply uniformly statewide, provide medical assistance equally “in amount, duration, [and] scope” among Medicaid beneficiaries, and establish a “single standard to be employed in determining” eligibility for medical assistance among different classes of beneficiaries. See 42 U.S.C. §§ 1396a(a)(1), (a)(10)(B), (a)(10)(C)(i)(III). In 1981, however, Congress recognized that these requirements needlessly diverted many Medicaid beneficiaries into impersonal and expensive long-term residence at hospitals, nursing homes, and intermediate-care facilities, without regard to whether less-intensive forms of care—such as assisted-living services—might meet an individual beneficiary’s medical needs. See Mary Jean Duckett & Mary R. Guy, Home & CommunityBased Services Waivers, 22 Health Care Fin. Rev. 123 (2000).

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Since 1981, therefore, Congress has allowed the Secretary of Health and Human Services to waive the uniformity and equal-provision conditions for States that pay the cost of “home or community-based services (other than room and board)[.]” 42 U.S.C. § 1396n(c)(1). Under an approved waiver plan, a State may provide “community-based” health services (which include assisted-living services) to Medicaid beneficiaries “with respect to whom there has been a determination that but for the provision of such services the [beneficiaries] would require the level of care provided in a hospital or a nursing facility . . . the cost of which could be reimbursed under the State [Medicaid] plan.” Id. Per such waiver plans, therefore, States may provide beneficiaries with assisted-living services rather than more-intrusive (and expensive) nursing-home services. In return for this flexibility, the State must individually evaluate Medicaid beneficiaries regarding their “eligib[ility] for such home or community-based care[.]” Id. § 1396n(c)(2)(B)(iii). In addition, the State may cover only community-based services—such as assisted-living services—that have been provided “pursuant to a written plan of care[.]” Id. § 1396n(c)(1).
In 2006, the State of Ohio applied for and received a Medicaid waiver to provide assisted-living services to low-income seniors. Ohio Ctrs. for Assisted Living Br. at 6. Under Ohio’s Medicaid regulations, a senior wishing to benefit from the waiver program must satisfy several criteria, including a determination by a county-level “passport” agency that the senior’s “health related needs . . . can be safely met” in a state-approved assisted-living facility (as opposed, for example, to a nursing home). Ohio Admin. Code 5160-33-03(B)(9). Per Congress’s conditions on Medicaid funding through the assisted-living waiver, Ohio’s county-level passport agencies will enroll a senior into the waiver program only after the senior meets several eligibility requirements, including approval of the senior’s “service plan” by the county passport agency. Ohio Admin. Code 173-38-03(C)(1)(b); see also Ohio Admin. Code 173-38-01(B). Ohio does not permit the disbursement of any Medicaid funding for waiverprogram services rendered before the passport agency approves the service plan. See Ohio Admin. Code 173-38-03(C)(1)(c).

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B.
1.
In 2008, Betty Hilleger—then suffering from dementia, heart problems, and arthritis— moved into The Lodge Care Center, an assisted-living facility in Cincinnati. During her first four years at The Lodge, Hilleger paid the center’s $4,300 monthly fee out of her own pocket. Then she ran out of money, and her daughters began paying the center’s fee. In October 2012, Hilleger applied for Medicaid assistance through Ohio’s assisted-living waiver program. Soon thereafter, her local passport agency approved a service plan for her. Later, in January 2013, the agency determined that Hilleger was financially eligible for the waiver program. Medicaid then began paying for the costs of Hilleger’s care at The Lodge.
In April 2012, Geraldine Saunders checked into a hospital and then a rehabilitation facility after suffering a fall. Her stress fractures and worsening dementia prevented her from returning home. In June 2012, she moved into the Close to Home assisted-living center in Ironton, Ohio. The same day, she applied for Medicaid assistance through Ohio’s assisted-living waiver program. Eighteen days later, the local passport agency approved her service plan, determined that she was otherwise eligible for benefits under the program, and authorized the payment of Medicaid benefits. Saunders’s daughter paid the 18 days’ worth of assisted-living costs between the time Saunders entered Close to Home and the time her service plan was finalized.
2.
In February 2013, Hilleger and Saunders—acting through their daughters, Marilyn Wenman and Kathryn Price, respectively—sued the director of Ohio’s Medicaid program and the director of the Ohio Department of Aging in a putative class action in federal district court. The plaintiffs alleged that Ohio’s omissions of Medicaid coverage for the first 18 days of Saunders’s assisted-living costs, and for the first three months of Hilleger’s assisted-living costs, were in violation of federal law. The plaintiffs sought declaratory and injunctive relief under 42 U.S.C. § 1983 on behalf of themselves and others similarly situated. They specifically alleged that, per 42 U.S.C. § 1396a(a)(34), Ohio must retroactively cover the assisted-living

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services for a waiver-program beneficiary for up to three months before the beneficiary applies for coverage under the program. Section 1396a(a)(34) requires States to offer Medicaid coverage to any beneficiary
for care and services included under the [Medicaid] plan and furnished in or after the third month before the month in which [the beneficiary] made application . . . for such assistance if such [beneficiary] was (or upon application would have been) eligible for such assistance at the time such care and services were furnished.
The plaintiffs asserted that they were eligible for Medicaid assistance under Ohio’s waiver program from the moment each of them took up residence at their assisted-living centers, and that they were therefore entitled to retroactive benefits (i.e., payments for services provided before a passport agency’s approval of their service plans) under § 1396a(a)(34). The plaintiffs asked the district court to enter a declaratory judgment that Ohio’s waiver program violated § 1396a(a)(34). They also asked the district court to enjoin the defendants from “artificially delaying” payment of the plaintiffs’ assisted-living benefits, and to provide class members with written notice of their right to a state hearing as to their eligibility for retroactive benefits.
In November 2014, the plaintiffs amended their complaint and added two more claims under § 1983: that the defendants failed to comply with the notice requirements of 42 U.S.C. § 1396a(a)(3); and that the defendants failed to provide Medicaid assistance with reasonable promptness, in violation of 42 U.S.C. § 1396a(a)(8).
In September 2015, the district court certified the plaintiffs’ proposed class of Medicaid beneficiaries and granted summary judgment to the plaintiffs. The court held that federal law required Ohio to “assess whether, at any time up to three months prior to [an] application for assisted living waiver benefits, the [applicant] met the financial eligibility benefits; whether the [applicant] had a need for intermediate or skilled level of care; and whether the [applicant] received supportive services consistent with the plan of care. If so, the State must grant retroactive assisted living waiver benefits in accordance with § 1396a(a)(34).” The court also held that the defendants had violated their duties under federal law to provide notice of the plaintiffs’ hearing rights and to provide Medicaid coverage reasonably promptly. In addition, the court declared that the defendants were obligated, going forward, to provide Medicaid assisted-

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living coverage to eligible beneficiaries for up to three months prior to the date of their applications. Finally, the court ordered the defendants to identify and provide all members of the class with written notice “of the state administrative procedure” available “to have defendants determine whether or not they may be eligible for additional days of Medicaid assisted living waiver coverage.”
This appeal followed.
II.
A.
The defendants argue that the plaintiffs lack standing to sue and that the district court thus should have dismissed their complaint. We review de novo whether the plaintiffs have standing. See Stalley v. Methodist Healthcare, 517 F.3d 911, 916 (6th Cir. 2008).
Standing has three elements. First, the plaintiff must show that she has suffered an “injury in fact”: that is, some invasion of her legal interests that is both “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Second, she must show that there is a “causal connection” between her injury and the defendant’s actions. Id. Third, “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Id. at 561.
The defendants focus on the third element here, arguing that the plaintiffs lack standing because the relief awarded by the district court cannot redress the named plaintiffs’ injuries. As to the claim asserted in the plaintiffs’ original complaint, that relief took two forms: first, a declaration that the plaintiffs were entitled to an award of assisted-living benefits for up to three months of assisted-living services provided before the date of their application for benefits, even though a passport agency had not approved their service plans before that date; and second, as ancillary relief, notice to class members of their right to an administrative hearing under state law (a hearing that might in turn lead to an award of retroactive benefits for a beneficiary). The defendants argue that neither form of relief can do the named plaintiffs any good, because (under the Eleventh Amendment, as discussed below) the plaintiffs cannot use the declaration to obtain

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an award of damages in federal court; instead, they can use it only to obtain an award of benefits in a state administrative hearing as to whether they were entitled to more benefits than they in fact received. And under state law that hearing is available for only a limited time: Ohio gives Medicaid beneficiaries 90 days to request a state administrative hearing to challenge or adjust a Medicaid benefits determination. See Ohio Admin. Code 5101:6-3-02(B)(2). Once that window closes, therefore, even a declaratory judgment that Hilleger and Saunders were entitled to additional benefits is useless to them as a practical matter, because they have no forum in which to wield it. And for both Hilleger and Saunders, as of this writing, that 90-day window (which began on the dates the State notified them of their award of benefits) passed long ago. Moreover, neither named plaintiff is likely to seek assisted-living benefits in the future: Hilleger passed away in September 2013 after the initiation of this lawsuit, and Saunders currently lives in a nursing home, with no sign that she will ever return to an assisted-living facility. Thus, the relief awarded by the district court—the declaration of entitlement to additional benefits, and notice of a state hearing in which the plaintiffs could seek an award of those benefits—does not redress the plaintiffs’ putative injuries. Hence the defendants argue that the plaintiffs lack standing.
The problem with that argument is that Hilleger’s 90-day window to seek a hearing was still open when the plaintiffs filed their complaint in this case. (Saunders’s 90-day window was closed by then.) And the fact that Hilleger’s window remained open, in turn, implicates a rule unique to class actions: in cases where the claims asserted on behalf of the class are “so inherently transitory” that the named plaintiff’s claims will “expire” before the district court can even rule on a motion for class certification, the plaintiff is deemed to have standing to sue— notwithstanding that her claim has “expired,” i.e., that the relief available for the claim can no longer do her any good—so long as she had standing to sue “at the time the . . . complaint was filed[.]” Cty. of Riverside v. McLaughlin, 500 U.S. 44, 51-52 (1991). (The idea behind the rule is that, if the district court had granted a motion for class certification before the plaintiff’s claim expired, the unexpired claims of other class members would then carry the torch for standing purposes; and it is hardly the plaintiff’s fault that the district court could not rule upon that motion before her “inherently transitory” claims expired. See Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1531 (2013).) Hilleger meets that test here—at the time she filed her

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complaint, 60 days of her 90-day period to seek a hearing still remained—and thus she does have standing to assert the claim set forth in her original complaint.
But the same is not true of the claims asserted in the amended complaint. We determine standing for each plaintiff on a claim-by-claim basis; “standing is not dispensed in gross.” Fednav, Ltd. v. Chester, 547 F.3d 607, 614 (6th Cir. 2008). The plaintiffs have standing to assert only the claims they had standing to assert when the claims themselves were first pled. Lynch v. Leis, 382 F.3d 642, 647 (6th Cir. 2004). And by November 2014—when the plaintiffs first pled, in their amended complaint, that the defendants breached their duties under 42 U.S.C. §§ 1396a(a)(3) and 1396a(a)(8)—even Hilleger had long since run out of time to request a State Medicaid hearing. Thus, at that time, Hilleger’s claims could not be redressed by any of the relief she sought. Both Hilleger and Saunders therefore lack standing to sue on the claims asserted for the first time in their amended complaint.
In sum, the plaintiffs have standing to pursue only their February 2013 claim that the defendants failed to comply with federal law by refusing to award retroactive assisted-living benefits under 42 U.S.C. § 1396a(a)(34). The district court erred when it concluded that the plaintiffs have standing to sue on their other claims.
B.
The defendants argue that the Eleventh Amendment bars the plaintiffs’ remaining claim for relief. We review de novo the defendants’ entitlement to sovereign immunity under the Eleventh Amendment. Babcock v. Michigan, 812 F.3d 531, 533 (6th Cir. 2016). Under that Amendment, the plaintiffs may not sue a state in federal court for “retroactive monetary relief.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 103 (1984).
Yet the federal courts must also ensure that state officers meet their obligations under federal law. Thus, a federal court may, without violating the Eleventh Amendment, issue a prospective injunction against a state officer to end a continuing violation of federal law. See Ex parte Young, 209 U.S. 123, 159 (1908). More to the point here, in suits concerning a state’s payment of public benefits under federal law, a federal court may enjoin the state’s officers to comply with federal law by awarding those benefits in a certain way going forward—even if the

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court may not order those officers to pay out public benefits wrongly withheld in the past. See Edelman v. Jordan, 415 U.S. 651, 667-68 (1974). And the court may order state officers to provide recipients of public benefits with notice of the court’s prospective injunction (to award benefits in a certain way going forward) and of the beneficiaries’ right to pursue state administrative remedies to obtain benefits in accordance with that injunction—even if that notice “will lead inexorably to the payment of state funds for retroactive benefits.” Quern v. Jordan, 440 U.S. 332, 347 (1979).
Here, the plaintiffs sought (and the district court ordered) prospective relief in the form of an injunction directing the defendants, Ohio’s Medicaid administrators, to cease their practice of providing waiver-program benefits only for the period following an eligibility determination, in purported violation of 42 U.S.C. § 1396a(a)(34). That is the kind of prospective injunctive relief that Ex parte Young squarely permits. The district court also ordered the defendants to notify class members of the court’s injunction and of their right to use Ohio’s administrative procedures to obtain any past Medicaid benefits to which the plaintiffs might be entitled under the injunction. That makes this order no different than the one the Supreme Court permitted in Quern. There, the order “simply inform[ed] class members that their federal suit [was] at an end, that the federal court [could] provide them with no further relief, and that there [were] existing state administrative procedures which they may wish to pursue.” Quern, 440 U.S. at 349. The district court’s order here provides the same kind of notice the order in Quern did. Thus, the district court’s order did not abridge Ohio’s sovereign immunity.
The defendants argue that the district court’s order violates the Eleventh Amendment because the order might be construed as commanding the defendants to “redo past eligibility determinations” or to make hearings available to class-members who have no right to a hearing under state law. Defs.’ Br. at 19-25. But we do not read the order that way. The court ordered the defendants to “advis[e] [the plaintiffs] of the state administrative procedure, compliant with due process requirements, available if [the plaintiffs] desire to have defendants determine whether or not they may be eligible for additional days of Medicaid assisted living waiver coverage.” In our view that order does not require anything other than notice of currently available state procedures. That notice might result in new eligibility determinations for class

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members who are still entitled to a hearing under state law, and thus might ultimately lead to payment of benefits that are past due. But that result is consistent with Quern. The Eleventh Amendment therefore does not bar the plaintiffs’ claim to injunctive relief.
C.
Finally, the defendants argue that the district court misconstrued 42 U.S.C. § 1396a(a)(34), which they contend does not require Ohio to pay benefits for assisted-living services rendered before a beneficiary obtains approval of his service plan. On this point the United States supports the defendants as amicus curiae, arguing that federal law in fact prohibits Ohio from offering Medicaid payments for assisted-living services that are rendered before a beneficiary’s service plan is approved.
We review de novo the district court’s interpretation of § 1396a(a)(34). See Max Trucking, LLC v. Liberty Mut. Ins. Corp., 802 F.3d 793, 799 (6th Cir. 2015). Under § 1396a(a)(34), states must offer Medicaid assistance to all beneficiaries
for care and services included under the [Medicaid] plan and furnished in or after the third month before the month in which [the beneficiary] made application . . . for such assistance if such [beneficiary] was (or upon application would have been) eligible for such assistance at the time such care and services were furnished.
(emphasis added). Thus, under § 1396a(a)(34), the plaintiffs were entitled to Medicaid reimbursement for assisted-living services furnished during the three months prior to their applications only if they were eligible for an award of those benefits “at the time” those services “were furnished.” Id.
Meanwhile, under 42 U.S.C. § 1396n(c)(1), Ohio can spend Medicaid funds only on assisted-living services that are provided “pursuant to a written plan of care[.]” Accordingly, under Ohio’s implementing regulations, a prospective Medicaid beneficiary becomes “eligible” for assisted-living benefits only after, among other things, a state passport agency approves an individualized service plan for the beneficiary. Ohio Admin. Code 5160-33-03(B)(9); see also Ohio Admin. Code 173-38-03(C)(1)(b). The plaintiffs were thus ineligible for Medicaid assisted-living benefits before a state passport agency approved their respective service plans.

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The district court was mistaken, therefore, to hold that the plaintiffs were entitled to reimbursement for assisted-living services that were provided before their respective service plans were approved. Quite the contrary: as the United States points out, the defendants would have violated federal law if they had used Medicaid funds to pay for assisted-living services provided before approval of a service plan.
Yet the plaintiffs argue (and the district court held) that the phrase “pursuant to[,]” as used in § 1396n(c)(1), is synonymous with “consistent with”; and thus, in the plaintiffs’ view, they are entitled to reimbursement for assisted-living services provided before approval of their service plans, so long as those benefits were “consistent with” the plans later approved. The short answer to that argument is that nobody uses the phrase “pursuant to” that way. A longer answer is that “pursuant to” is not defined by the Medicaid statute, so we construe it according to its ordinary meaning, as shown by the phrase’s “normal usage[.]” Freeman v. Quicken Loans, Inc., 132 S. Ct. 2034, 2042 (2012). The phrase is normally used in legal contexts; the leading legal dictionary defines “pursuant to” as “[i]n compliance with[,]” “[a]s authorized by[,]” or “[i]n carrying out[.]” Black’s Law Dictionary 1356 (9th ed. 2009). The Medicaid statute itself routinely uses “pursuant to” in precisely this way. See, e.g., 42 U.S.C. § 1396a(a)(39) (noting that state Medicaid plans “shall exclude any specified individual or entity from participation in the program under the State plan for the period specified by the Secretary [of Health and Human Services], when required by him to do so pursuant to section 1320a-7 or section 1320a-7a of this title”); § 1396a(r)(1)(B)(i)(II) (“a State veterans home with respect to which the Secretary of Veterans Affairs makes per diem payments for nursing home care pursuant to section 1741(a) of Title 38”); § 1396b(u)(1)(E)(i) (“eligibility therefor was determined exclusively by the Secretary [of Health and Human Services] under an agreement pursuant to section 1383c of this title”).
Justice Jackson likewise used “pursuant to” in precisely this sense, when he wrote that the President’s “authority is at its maximum” when he “acts pursuant to an express or implied authorization of Congress.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring). And for purposes of Justice Jackson’s rule, and otherwise, the President cannot act “pursuant to” a statute that Congress has not yet passed. Nor can a police officer search a home “pursuant to” a warrant she obtains after the search; the Fourth

Case: 1:13-cv-00074-KLL Doc #: 143 Filed: 09/30/16 Page: 14 of 16 PAGEID #: 2506 (14 of 16)

No. 15-4066

Price, et al. v. Medicaid Director, et al.

Page 12

Amendment’s warrant requirement would be meaningless if an officer could search first, then obtain a warrant, and then claim she acted “pursuant to” it simply because the search was consistent with the warrant’s terms.
“Pursuant to” is a narrower term than “consistent with.” A decision of the Supreme Court, for example, might be consistent with a decision of our court; but none of the Supreme Court’s decisions are made “pursuant to” ours. “Pursuant to” means more than mere consistency; it means, in addition, that an action is directed or permitted by the authority by which the action is taken. And in no case is the Supreme Court acting at our direction or authority.
That assisted-living services are “consistent with” a service plan, therefore, does not mean that the services were provided “pursuant to” the plan. To be provided “pursuant to” a plan, the services must be authorized by the plan. And just as a warrant cannot authorize a search before the warrant is issued, neither can a plan authorize the provision of assisted-living benefits before the plan is approved. Under Ohio’s waiver program and the relevant provisions of the Medicaid Act, therefore, assisted-living benefits can be provided “pursuant to a written plan of care[,]” 42 U.S.C. § 1396n(c)(1), only after a state passport agency approves the plan. The defendants thus complied with federal law, rather than violated it, when they declined to use Medicaid funds to pay for assisted-living services that were provided before a state passport agency approved a plan of care for the recipient of those services.
The plaintiffs’ remaining argument is that the defendants’ policy renders the retroactivity requirement of § 1396a(a)(34) a dead letter. But under Ohio’s Medicaid regulations, a senior can seek approval of a service plan before making an application for assisted-living benefits. If a senior first contacts the local passport agency, she may receive “an in-person assessment to determine eligibility” for the assisted-living program before she submits an application for Medicaid benefits. Ohio Admin. Code 5160-33-04(A)(2). Thus, so long as an applicant anticipates in advance that she might want Medicaid coverage for assisted-living services, she can get a written plan of care approved in advance of her application. That way, if she is not yet financially eligible for Medicaid—and wants to make sure there is no “coverage gap” between the time she becomes financially eligible and the time her application is approved—she can

Case: 1:13-cv-00074-KLL Doc #: 143 Filed: 09/30/16 Page: 15 of 16 PAGEID #: 2507 (15 of 16)

No. 15-4066

Price, et al. v. Medicaid Director, et al.

Page 13

ensure that a service plan is in place in advance, and thereby receive benefits retroactive to the time of application if and when she applies, as provided under § 1396a(a)(34).
The Ohio Centers for Assisted Living, appearing as amicus curiae in support of the plaintiffs, dispute this point. They contend that submission of an application to the Ohio Department of Job and Family Services for assisted-living benefits constitutes an application for Medicaid, and that it is therefore impossible to obtain pre-application approval of a service plan. See Ohio Ctrs. for Assisted Living Br. at 20. But amicus neglects to address the regulatory provision that allows seniors to receive an “in-person [eligibility] assessment” from the local passport agency before making an application with the Department of Job and Family Services. Ohio Admin. Code 5160-33-04(A)(2). And that provision, on its face, permits seniors to obtain service-plan approvals before they apply for benefits. Ohio has thus provided a mechanism that permits Medicaid coverage for assisted-living services to be rendered before approval of the beneficiary’s application, in compliance with § 1396a(a)(34). Moreover, while the defendants’ policy does not abridge § 1396a(a)(34), the plaintiffs’ interpretation of these provisions would abridge the plain terms of § 1396n(c)(1), by stripping the phrase “pursuant to” of its core meaning. Thus, as the United States has long recognized, § 1396n(c)(1) permits Medicaid funding only for assisted-living services that are authorized by a preceding service plan. See U.S. Br. at 16-17.
The district court erred when it held that § 1396a(a)(34) requires Ohio to pay for assistedliving services rendered before the approval of a Medicaid beneficiary’s service plan. Given that holding, we choose not to address the question whether the district court properly certified the class. Instead we simply vacate the court’s certification order.
The district court’s judgment is reversed, and the case remanded with instructions to enter judgment in favor of the defendants.

Case: 1:13-cv-00074-KLL Doc #: 143 Filed: 09/30/16 Page: 16 of 16 PAGEID #: 2508 (16 of 16)

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

No. 15-4066

KATHRYN A. PRICE, et al., Plaintiffs - Appellees,
v.

FILED
Sep 30, 2016
DEBORAH S. HUNT, Clerk

MEDICAID DIRECTOR, Office of Medical Assistance, et al.,
Defendants - Appellants.

Before: BOGGS and KETHLEDGE, Circuit Judges; STAFFORD, District Judge.

JUDGMENT

On Appeal from the United States District Court for the Southern District of Ohio at Cincinnati.

THIS CAUSE was heard on the record from the district court and was argued by counsel.

IN CONSIDERATION WHEREOF, it is ORDERED that the judgment of the district court is REVERSED, and the case REMANDED with instructions to enter judgment in favor of the defendants.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

 
 Case: 1:13-cv-74 As of: 11/03/2017 12:28 PM EDT 1 of 14
CASREF,CLOSED,CONMAG,PROTO,REMAND−COAP,STAYED
U.S. District Court Southern District of Ohio (Cincinnati) CIVIL DOCKET FOR CASE #: 1:13−cv−00074−KLL

Price et al v. Medicaid Director, Office of Medical Assistance et al Assigned to: Magistrate Judge Karen L. Litkovitz Referred to: Magistrate Judge J. Gregory Wehrman (Settlement) Case in other court: Sixth Circuit Court of Appeals, 15−04066 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 02/01/2013 Date Terminated: 11/02/2016 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Kathryn A. Price as next friend and Attorney−in−Fact on behalf of Geraldine A. Saunders

represented by Anna M Rich Justice in Aging 1330 Broadway Suite 525 Oakland, CA 94612 510−663−1055 Fax: 510−663−1051 Email: arich@justiceinaging.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julia A Carter Justice in Aging 3660 Wilshire Blvd Suite 718 Los Angeles, CA 90010 213−289−0799 Fax: 213−550−0501 Email: jcarter@justiceinaging.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Peter Leroux Cassady Beckman, Weil, Shepardson LLC 895 Central Avenue, Suite 300 Cincinnati, Oh 45202−4007 513−621−2100 Fax: 513−621−2100 Email: petercassady@beckman−weil.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ashley Joy Shannon Beckman Weil Shepardson 300 Pike Street Suite 400 Cincinnati, OH 45202 513−621−2100 Fax: 513−621−0106 Email: aburke@beckman−weil.com (Inactive) ATTORNEY TO BE NOTICED

Eric M Carlson Justice in Aging 3660 Wilshire Boulevard Suite 718 Los Angeles, CA 90010 213−674−2813

Case: 1:13-cv-74 As of: 11/03/2017 12:28 PM EDT 2 of 14

Fax: 213−550−0501 Email: ecarlson@justiceinaging.org PRO HAC VICE ATTORNEY TO BE NOTICED

Janet Eileen Pecquet Beckman Weil Shepardson LLC 300 Pike Street Suite 400 Cincinnati, OH 45202−4008 513−621−2100 Fax: 513−621−0106 Email: jpecquet@beckman−weil.com ATTORNEY TO BE NOTICED

Plaintiff
Marilyn Wenman Executor for the Estate of Betty Hilleger, Deceased on behalf of Betty Hilleger

represented by Anna M Rich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julia A Carter (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Peter Leroux Cassady (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ashley Joy Shannon (See above for address) ATTORNEY TO BE NOTICED

Eric M Carlson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Janet Eileen Pecquet (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Medicaid Director, Office of Medical Assistance Ohio Department of Job and Family Services

represented by Cheryl R Hawkinson Ohio Attorney General − 2 30 E Broad Street 26th Floor Columbus, OH 43215−9470 614−466−8600 Fax: 614−466−3965 Email: chawkinson@ag.state.oh.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy Robbins Goldstein Office of the Ohio Attorney General 30 E. Broad Street Columbus, OH 43215

Case: 1:13-cv-74 As of: 11/03/2017 12:28 PM EDT 3 of 14

614−466−8600 Fax: 614−466−6090 Email: amy.goldstein@ohioattorneygeneral.gov ATTORNEY TO BE NOTICED

Natalie Rae Brown Ohio Attorney General Health and Human Services Section 30 E. Broad Street Columbus, OH 43215 614−466−8600 Email: natalie.quintana@ohioattorneygeneral.gov TERMINATED: 11/20/2013 ATTORNEY TO BE NOTICED

Defendant Director, Ohio Department of Aging

represented by Cheryl R Hawkinson Ohio Attorney General − 2 Consumer Protection Section 30 E Broad Street 26th Floor Columbus, OH 43215−9470 614−466−8831 Fax: 614−466−3965 Email: chawkinson@ag.state.oh.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Robbins Goldstein (See above for address) ATTORNEY TO BE NOTICED

Natalie Rae Brown (See above for address) TERMINATED: 11/20/2013 ATTORNEY TO BE NOTICED

Date Filed 02/01/2013
02/04/2013 02/18/2013 02/18/2013 02/19/2013 02/19/2013

# Docket Text
1 COMPLAINT filed by Marilyn Wenman obo Betty Hilleger and Kathryn A. Price obo Geralidine Saunders against Director, Ohio Department of Aging and Medicaid Director, Office of Medical Assistance.( Filing fee $ 350 paid − receipt number: 0648−3961964 (Attachments: # 1 Civil Cover Sheet) (eh1) (Entered: 02/04/2013)
Pursuant to General Order of Assignment and Reference filed on February 23, 2011, Magistrate Judge Karen L Litkovitz added for purposes of discovery. (eh1) (Entered: 02/04/2013)
2 WAIVER OF SERVICE Returned Executed. Waiver sent to Director, Ohio Department of Aging on 2/1/2013, answer due 4/2/2013. (Pecquet, Janet) Modified to correct answer date on 2/19/2013 (jlw). (Entered: 02/18/2013)
3 WAIVER OF SERVICE Returned Executed. Waiver sent to Medicaid Director, Office of Medical Assistance on 2/1/2013, answer due 4/2/2013. (Pecquet, Janet) Modified to correct answer date on 2/19/2013 (jlw). (Entered: 02/18/2013)
Set/Reset Deadlines: Director, Ohio Department of Aging answer due 4/2/2013; Medicaid Director, Office of Medical Assistance answer due 4/2/2013. (jlw) (Entered: 02/19/2013)
Notice of Correction re: 2 Waiver of Service Executed, 3 Waiver of Service Executed. Service date was incorrectly entered. The correct date is 2/1/2013 changing the answer date to 4/2/2013. Deadlines were reset. (jlw) (Entered: 02/19/2013)

Case: 1:13-cv-74 As of: 11/03/2017 12:28 PM EDT 4 of 14

02/26/2013 02/26/2013 03/27/2013 03/28/2013 04/23/2013 04/23/2013 04/24/2013 06/07/2013 06/11/2013
06/13/2013
07/10/2013 07/11/2013
07/11/2013
10/15/2013

4 NOTICE of Appearance by Natalie Rae Brown for Defendants Director, Ohio Department of Aging, Medicaid Director, Office of Medical Assistance (Brown, Natalie) (Entered: 02/26/2013)
5 NOTICE of Appearance by Cheryl R Hawkinson for Defendants Director, Ohio Department of Aging, Medicaid Director, Office of Medical Assistance (Hawkinson, Cheryl) (Entered: 02/26/2013)
6 STIPULATION extension of time to plead to complaint by Plaintiffs and Defendants. (Hawkinson, Cheryl) Modified to correct filer information on 3/28/2013 (lk). (Entered: 03/27/2013)
Reset Deadlines per stipulation: Director, Ohio Department of Aging answer due 4/23/2013; Medicaid Director, Office of Medical Assistance answer due 4/23/2013. (lk) (Entered: 03/28/2013)
7 ANSWER to Complaint filed by Director, Ohio Department of Aging. (Brown, Natalie) (Entered: 04/23/2013)
8 ANSWER to Complaint filed by Medicaid Director, Office of Medical Assistance. (Brown, Natalie) (Entered: 04/23/2013)
9 NOTICE of Hearing: Preliminary Pretrial Conference set for 6/20/2013 02:30 PM in Chambers before Judge S Arthur Spiegel. (km1) (Entered: 04/24/2013)
10 RULE 26(f) REPORT by Defendants Director, Ohio Department of Aging, Medicaid Director, Office of Medical Assistance, Plaintiffs Kathryn A. Price, Marilyn Wenman. (Pecquet, Janet) (Entered: 06/07/2013)
11 ORDER REASSIGNING CASE. Upon consent of the parties, this case is transferred to Magistrate Judge Karen L. Litkovitz for all further proceedings. Judge S Arthur Spiegel no longer assigned to case. Any appeal will be to the United States Court of Appeals for the Sixth Circuit. The preliminary pretrial conference set for 6/20/2013 at 2:30 p.m. is hereby VACATED. Signed by Judge S Arthur Spiegel on 6/11/2013. (km1) (Entered: 06/11/2013)
12 NOTICE: Scheduling Conference set for Wednesday, 7/10/2013 at 02:00 PM via telephone before Magistrate Judge Karen L. Litkovitz. (COUNSEL MUST LOG INTO CM/ECF TO VIEW THIS SEALED DOCUMENT IN ITS ENTIRETY FOR INSTRUCTIONS ON HOW TO PARTICIPATE IN THE TELEPHONE SCHEDULING CONFERENCE.) (art) (Entered: 06/13/2013)
13 Minute Entry: Case called this date before Magistrate Judge Karen L. Litkovitz for a Scheduling Conference held via telephone on 7/10/2013. Counsel for plaintiff and defendant present. Case calendar established. Order of the Court to follow. (Court Reporter none present.) (art) (Entered: 07/11/2013)
14 NOTICE: Status Conference set for Tuesday, 10/15/2013 at 02:00 PM via telephone before Magistrate Judge Karen L. Litkovitz. (COUNSEL MUST LOG INTO CM/ECF TO VIEW THIS SEALED DOCUMENT IN ITS ENTIRETY FOR INSTRUCTIONS ON HOW TO PARTICIPATE IN THE TELEPHONE STATUS CONFERENCE.) (art) (Entered: 07/11/2013)
15 CALENDAR ORDER: Deadline for leave to amend the pleadings set for 8/30/2013; Plaintiff to identify and produce primary expert reports deadline set for 10/6/2013; Defendant to identify and produce primary expert reports deadline set for 11/6/2013; Parties disclosure and report of rebuttal experts deadline set for 12/6/2013; Parties disclosure of non−expert (fact) witnesses deadline set for 1/6/2014; Parties to exchange witness list and summary deadline set for 2/28/2014; Discovery deadline set for 3/28/2014; Dispositive motion deadline set for 5/16/2014; Joint final pretrial order deadline set for 9/3/2014; Final Pretrial Conference set for 9/10/2014 at 02:00 PM before Magistrate Judge Karen L. Litkovitz; Bench Trial set for 10/1/2014 at 09:00 AM before Magistrate Judge Karen L. Litkovitz. Signed by Magistrate Judge Karen L. Litkovitz on 7/11/2013. (art) (Entered: 07/11/2013)
16 Minute Entry: Case called this date before Magistrate Judge Karen L. Litkovitz for a Status Conference held via telephone on 10/15/2013. Case cont'd for further status conference via telephone on Tuesday, 11/19/2013 at 3:00 pm. (Court Reporter none

Case: 1:13-cv-74 As of: 11/03/2017 12:28 PM EDT 5 of 14

10/15/2013
11/15/2013 11/19/2013 11/19/2013 11/20/2013 11/20/2013
11/22/2013 12/10/2013 12/10/2013 12/10/2013 12/18/2013 12/23/2013
12/27/2013 12/27/2013 12/30/2013

present.) (art) (Entered: 10/15/2013)
17 NOTICE: Status Conference set for Tuesday, 11/19/2013 at 03:00 PM via telephone before Magistrate Judge Karen L. Litkovitz. (COUNSEL MUST LOG INTO CM/ECF TO VIEW THIS SEALED DOCUMENT IN ITS ENTIRETY FOR INSTRUCTIONS ON HOW TO PARTICIPATE IN THE TELEPHONE STATUS CONFERENCE.) (art) (Entered: 10/15/2013)
18 NOTICE by Defendants Director, Ohio Department of Aging, Medicaid Director, Office of Medical Assistance (Brown, Natalie) (Entered: 11/15/2013)
19 NOTICE of Appearance by Amy Robbins Goldstein for Defendants Director, Ohio Department of Aging, Medicaid Director, Office of Medical Assistance (Goldstein, Amy) (Entered: 11/19/2013)
20 Minute Entry: Case called this date before Magistrate Judge Karen L. Litkovitz for a Status Conference held via telephone on 11/19/2013.Counsel for plaintiff and defendant present. Order of the Court to follow. (Court Reporter none present.) (art) (Entered: 11/19/2013)
21 ORDER by agreement of the parties and with the consent of the Court, class−related discovery deadline set for 1/17/2014; class certification motion deadline set for 2/18/2014. Signed by Magistrate Judge Karen L. Litkovitz on 11/19/2013. (art) (Entered: 11/20/2013)
22 ORDER REFERRING CASE to Magistrate Judge J. Gregory Wehrman for purposed of conducting a settlement conference. Parties are directed to contact MJ Wehrman's chambers by no later than 12/13/2013 and arrange a date for the settlement conference in this matter. Signed by Magistrate Judge Karen L. Litkovitz on 11/19/2013. (art) (Entered: 11/20/2013)
23 ORDER signed by Magistrate Judge J. Gregory Wehrman on 11/22/13. IT IS ORDERED: A Settlement Conference will be held on 1/13/2014 at 9:30 AM at the U.S. Courthouse, 35 West Fifth Street, Covington, Kentucky. (eh1) (Entered: 11/22/2013)
24 NOTICE to Take Deposition of Davonna Jeter by Plaintiffs Kathryn A. Price, Marilyn Wenman. (Pecquet, Janet) (Entered: 12/10/2013)
25 AMENDED NOTICE to Take Deposition of Davonna Jeter by Plaintiffs Kathryn A. Price, Marilyn Wenman. (Pecquet, Janet) Modified to clarify docket text on 12/11/2013 (jlw). (Entered: 12/10/2013)
26 NOTICE to Take Deposition of Lynn Periatt by Plaintiffs Kathryn A. Price, Marilyn Wenman. (Pecquet, Janet) (Entered: 12/10/2013)
27 MOTION for Leave to File First Amended Class Action Complaint and to Substitute Marilyn A. Wenman for Betty Hilleger, Deceased Pursuant to Fed. R. Civ. P. 25(a) and to Add Claims by Plaintiffs Kathryn A. Price, Marilyn Wenman. (Pecquet, Janet) (Entered: 12/18/2013)
28 MOTION for Extension of Time to File Response/Reply as to 27 MOTION for Leave to File First Amended Class Action Complaint and to Substitute Marilyn A. Wenman for Betty Hilleger, Deceased Pursuant to Fed. R. Civ. P. 25(a) and to Add Claims New date requested 2/14/2014. by Defendants Director, Ohio Department of Aging, Medicaid Director, Office of Medical Assistance. (Hawkinson, Cheryl) (Entered: 12/23/2013)
29 MOTION for Leave to Appear Pro Hac Vice of Eric M. Carlson (Filing fee $ 200, receipt number 0648−4388016) by Plaintiffs Kathryn A. Price, Marilyn Wenman. (Pecquet, Janet) (Entered: 12/27/2013)
30 MOTION for Leave to Appear Pro Hac Vice of Anna M. Rich (Filing fee $ 200, receipt number 0648−4388026) by Plaintiffs Kathryn A. Price, Marilyn Wenman. (Pecquet, Janet) (Entered: 12/27/2013)
31 ORDER granting 29 Motion for Leave to Appear Pro Hac Vice of attorney Eric M. Carlson. Signed by Magistrate Judge Karen L. Litkovitz on 12/30/2013. (art) (Entered: 12/30/2013)

Case: 1:13-cv-74 As of: 11/03/2017 12:28 PM EDT 6 of 14

12/30/2013 01/03/2014 01/06/2014 01/06/2014 01/08/2014 01/08/2014
01/14/2014
01/14/2014 01/16/2014
03/26/2014 03/27/2014
03/27/2014 03/27/2014

32 ORDER granting 30 Motion for Leave to Appear Pro Hac Vice of attorney Anna M. Rich. Signed by Magistrate Judge Karen L. Litkovitz on 12/30/2013. (art) (Entered: 12/30/2013)
33 Proposed Protective Order by Defendants Director, Ohio Department of Aging, Medicaid Director, Office of Medical Assistance. (Hawkinson, Cheryl) Modified to terminate motion on 1/7/2014 (lk). (Entered: 01/03/2014)
34 STIPULATION Stipulation of Extension by Plaintiffs Kathryn A. Price, Marilyn Wenman. (Pecquet, Janet) (Entered: 01/06/2014)
35 STIPULATION Amended Stipulation of Extension by Plaintiffs Kathryn A. Price, Marilyn Wenman. (Pecquet, Janet) (Entered: 01/06/2014)
36 STIPULATED PROTECTIVE ORDER. Signed by Magistrate Judge Karen L. Litkovitz on 1/8/2014. (art) (Entered: 01/08/2014)
37 ORDER granting parties agreed 27 28 Motion(s) that defendants shall have until 2/14/2014 in which to file a response to plaintiffs' motion for leave to file the first amended complaint, and plaintiffs' motion for class certification shall be due on or before 4/18/2014. The cut−off for discovery for class certification shall be 3/17/2014. Signed by Magistrate Judge Karen L. Litkovitz on 1/8/2014. (art) (Entered: 01/08/2014)
38 Minute Order for Proceedings held before Magistrate Judge J. Gregory Wehrman: Settlement Conference on 1/13/2014. Janet Pecquet, Peter Cassady, and Ashley Shannon Burke appeared for Plaintiff; Cheryl Hawkinson, Amy Goldstein, and Natalie Brown appeared for Defendant. The parties made substantial progress toward resolving the pending litigation and have requested additional time to continue negotiations. IT IS ORDERED that on or before 1/27/2014 parties shall file a joint status report. (eh1) (Entered: 01/14/2014)
39 ORDER that all current calendar deadlines in this matter be extended by (60) days pending the parties settlement efforts. Signed by Magistrate Judge Karen L. Litkovitz on 1/14/2014. (art) (Entered: 01/14/2014)
40 AMENDED Minute Order for Proceedings held before Magistrate Judge J. Gregory Wehrman: Settlement Conference on 1/13/2014. Janet Pecquet, Peter Cassady, and Ashley Shannon Burke appeared for Plaintiff; Cheryl Hawkinson and Amy Goldstein appeared for Defendant. The parties made substantial progress toward resolving the pending litigation and have requested additional time to continue negotiations. IT IS ORDERED that on or before 1/27/2014 parties shall file a joint status report. (eh1) (Entered: 01/16/2014)
41 Minute Entry: Case called this date before Magistrate Judge Karen L. Litkovitz for a Status Conference held via telephone on 3/26/2014. Counsel for plaintiff and defendant present. Order of the Court to follow. (Court Reporter none present.) (art) (Entered: 03/27/2014)
42 ORDER following 41 Status Conference held on 3/26/2014. Parties are to file a joint motion for an extension of the deadlines and are to include a proposed order containing agreed upon dates. This matter is set for a follow−up status conference on 4/24/2014 at 02:30 PM via telephone before Magistrate Judge Karen L. Litkovitz. Signed by Magistrate Judge Karen L. Litkovitz on 3/27/2014. (art) Modified to correct status conference date on 3/31/2014 (sct1). (Entered: 03/27/2014)
43 NOTICE: Status Conference set for Thursday, 4/24/2014 at 02:30 PM via telephone before Magistrate Judge Karen L. Litkovitz. (COUNSEL MUST LOG INTO CM/ECF TO VIEW THIS SEALED DOCUMENT IN ITS ENTIRETY FOR INSTRUCTIONS ON HOW TO PARTICIPATE IN THE TELEPHONE STATUS CONFERENCE). (art) (Entered: 03/27/2014)
44 ORDER signed by Magistrate Judge J. Gregory Wehrman on 3/27/14. IT IS ORDERED: A settlement conference will be held on APRIL 8, 2014, at 10:00 a.m. at the U.S. Courthouse, 35 West Fifth Street, Covington, Kentucky. (eh1) (Entered: 03/27/2014)

Case: 1:13-cv-74 As of: 11/03/2017 12:28 PM EDT 7 of 14

04/10/2014
04/24/2014 05/02/2014
05/05/2014 06/24/2014 06/24/2014 07/08/2014 07/09/2014 07/15/2014 07/15/2014

45 Minute Order. Proceedings held before Magistrate Judge J. Gregory Wehrman: Second Settlement Conference held on 4/10/2014 with the following appearances: attorneys Janet Pecquet, Ashley Shannon Burke and Peter Cassady for plaintiffs; Brianne Brown and Natalie Brown as representatives for defendants, along with defendants' attorneys, Amy Goldstein and Cheryl Hawkinson. In light of recent regulatory changes by CMS the parties have agreed to review in depth the applicable regulations and report back to the Court by April 30, 2014. Accordingly, IT IS ORDERED: The parties are on notice that a subsequent conference call will be conducted with the Court at a mutually agreeable date/time. (sct1) (Entered: 04/10/2014)
46 Minute Entry: Case called this date before Magistrate Judge Karen L. Litkovitz for a Status Conference held via telephone on 4/24/2014. Counsel for plaintiffs, and defedants present. Parties will submit a joint proposed request for extension of certain discovery and filing deadlines. (Court Reporter none present.) (art) (Entered: 05/01/2014)
47 STIPULATED CALENDAR EXTENSION ORDER: Discovery deadline, including class certification set for 7/31/2014; Plaintiffs' Motion for Class Certification shall be due on or before 9/12/2014; Memorandum in opposition for class certification shall be due on or before 10/31/2014; Reply memorandum for class certification shall be due on or before 11/21/2014; Dispositive Motions shall be due on or before 9/12/2014; Memoranda in opposition to dispositive motions shall be due on or before 10/31/2014; Reply memoranda for dispositive motions shall be due on or before 11/21/2014; Final pretrial conference and trial dates to be determined at a later date by the Court. Signed by Magistrate Judge Karen L. Litkovitz on 5/2/2014. (art) (Entered: 05/02/2014)
48 NOTICE: Status Conference set for Tuesday, 6/24/2014 at 03:30 PM via telephone before Magistrate Judge Karen L. Litkovitz. (COUNSEL MUST LOG INTO CM/ECF TO VIEW THIS SEALED DOCUMENT IN ITS ENTIRETY FOR INSTRUCTIONS ON HOW TO PARTICIPATE IN THE TELEPHONE STATUS CONFERENCE). (art) (Entered: 05/05/2014)
Defendants' counsel Cheryl Hawkinson unavailable today (death in family) for status conference set for 6/24/2014 at 3:30 pm. This matter will be reset for status conference in a couple of weeks before MJ Litkovitz. (art) (Entered: 06/24/2014)
49 NOTICE RESETTING: Status Conference reset for Tuesday, 7/8/2014 at 01:30 PM via telephone before Magistrate Judge Karen L. Litkovitz. (COUNSEL MUST LOG INTO CM/ECF TO VIEW THIS SEALED DOCUMENT IN ITS ENTIRETY FOR INSTRUCTIONS ON HOW TO PARTICIPATE IN THE TELEPHONE STATUS CONFERENCE). (art) (Entered: 06/24/2014)
50 Minute Entry: Case called this date before Magistrate Judge Karen L. Litkovitz for a Status Conference held via telephone on 7/8/2014. Counsel for plaintiffs present. Case cont'd for a rescheduled status conference tentatively set for Tuesday, 7/15/2014 at 11:00 via telephone. (Court Reporter none present.) (art) (Entered: 07/08/2014)
51 NOTICE: Status Conference set for Tuesday, 7/15/2014 at 11:00 AM via telephone before Magistrate Judge Karen L. Litkovitz. (COUNSEL MUST LOG INTO CM/ECF TO VIEW THIS SEALED DOCUMENT IN ITS ENTIRETY FOR INSTRUCTIONS ON HOW TO PARTICIPATE IN THE TELEPHONE STATUS CONFERENCE). (art) (Entered: 07/09/2014)
52 Minute Entry: Case called this date before Magistrate Judge Karen L. Litkovitz for a Status Conference held via telephone on 7/15/2014. Counsel for plaintiffs and defendants present. Revised case calendar established. Order of the Court to follow. (Court Reporter none present.) (art) (Entered: 07/15/2014)
53 REVISED CALENDAR ORDER: The cut−off date for all discovery, including class certification set for 10/31/2014; Plaintiffs' Motion for Class Certification shall be due on or before 12/12/2014; Memorandum in opposition for class certification shall be due on or before 2/6/2015; Reply memorandum for class certification shall be due on or before 2/27/2015; Dispositivie motions shall be due on or before 12/12/2014; Memorandum in opposition to dispositive motions shall be due on or before 2/6/2015; Reply memorandum for dispositive motions shall be due on or before 2/27/2015; Joint Final Pretrial Order deadline set for 6/4/2015; Final Pretrial Conference set for 6/11/2015 at 02:00 PM before Magistrate Judge Karen L. Litkovitz; Bench Trial set

Case: 1:13-cv-74 As of: 11/03/2017 12:28 PM EDT 8 of 14

11/12/2014 11/13/2014 11/13/2014 11/13/2014
12/05/2014 12/05/2014 12/10/2014 12/16/2014 12/17/2014 12/19/2014 12/30/2014 12/31/2014 01/15/2015 01/16/2015

for 6/22/2015 at 09:00 AM before Magistrate Judge Karen L. Litkovitz. Signed by Magistrate Judge Karen L. Litkovitz on 7/15/2014. (art) (Entered: 07/15/2014)
54 STIPULATION of Extension by Defendants Director, Ohio Department of Aging, Medicaid Director, Office of Medical Assistance, Plaintiffs. (Hawkinson, Cheryl) Modified to include plaintiffs as filers on 11/13/2014 (eh1). (Entered: 11/12/2014)
55 ORDER granting plaintiff's 27 Motion for Leave to File first amended complaint. It is Ordered that Marilyn A. Wenman, duly appointed representative of the Estate of Betty Hilleger, Deceased, shall be substituted for plaintiff Betty Hilleger. Signed by Magistrate Judge Karen L. Litkovitz on 11/13/2014. (art) (Entered: 11/13/2014)
56 FIRST AMENDED CLASS ACTION COMPLAINT for injunctive and declaratory relief filed by plaintiffs. (art) (Entered: 11/13/2014)
57 REVISED CALENDAR ORDER: The cutoff for all discovery, including class certification, shall be 10/31/2014; Defendants shall have (30) days to file their respective answer from the date the Amended Complaint is filed. Plaintiffs' Motion for class certification shall be due on or before 1/16/2015; Memorandum in opposition for class certification shall be due on or before 2/20/2015; Reply memorandum for class certification shall be due on or before 3/13/2015; Dispositive motions shall be due on or before 1/16/2015; Memorandum in opposition to dispositive motions shall be due on or before 2/20/2015; Reply memorandum for dispositive motions shall be due on or before 3/13/2015; Parties Joint final pretrial order deadline set for 6/4/2015; Final Pretrial Conference set for 6/11/2015 at 02:00 PM before Magistrate Judge Karen L. Litkovitz; Bench Trial set for 6/22/2015 at 09:00 AM before Magistrate Judge Karen L. Litkovitz. Signed by Magistrate Judge Karen L. Litkovitz on 11/13/2014. (art) (Entered: 11/13/2014)
58 ANSWER to 56 Amended Complaint filed by Director, Ohio Department of Aging. (Hawkinson, Cheryl) Modified to clarify docket text on 12/8/2014 (jlw1). (Entered: 12/05/2014)
59 Director, Ohio Department of Medicaid ANSWER to 56 Amended Complaint filed by Medicaid Director, Office of Medical Assistance. (Hawkinson, Cheryl) (Entered: 12/05/2014)
60 STIPULATION Joint Stipulation of Dismissal Without Prejudice of Claim Four of the First Amended Complaint by Plaintiffs Kathryn A. Price, Marilyn Wenman. (Pecquet, Janet) (Entered: 12/10/2014)
61 MOTION for Leave to File Motion for Summary Judgment in Excess of Twenty (20) Pages by Defendants Director, Ohio Department of Aging, Medicaid Director, Office of Medical Assistance. (Hawkinson, Cheryl) (Entered: 12/16/2014)
62 NOTATION ORDER granting defendants John McCarthy adn Bonnie Kantor−Burmans' 61 Motion for Leave to File a motion for summary judgment in excess of (20) pages. Signed by Magistrate Judge Karen L. Litkovitz on 12/17/2014. (art) (Entered: 12/17/2014)
63 NOTICE of Change of Address by Janet Eileen Pecquet (Pecquet, Janet) (Entered: 12/19/2014)
64 MOTION for Leave to File Excess Pages in Motion for Summary Judgment by Plaintiffs Kathryn A. Price, Marilyn Wenman. (Pecquet, Janet) (Entered: 12/30/2014)
65 NOTATION ORDER granting plaintiff's 64 Motion for Leave to File Motion for Summary Judgment in Excess of (20) Pages. Signed by Magistrate Judge Karen L. Litkovitz on 12/31/2014. (art) (Entered: 12/31/2014)
66 MOTION for Leave to File Declaration of Janet E. Pecquet, with Attachments, Under Seal by Plaintiffs Kathryn A. Price, Marilyn Wenman. (Pecquet, Janet) (Entered: 01/15/2015)
67 MOTION to Seal Defendants Motion for Leave to File Exhibits of Davona Jeter and Lynn Periatt Depositions Under Seal by Defendants Director, Ohio Department of Aging, Medicaid Director, Office of Medical Assistance. (Hawkinson, Cheryl) (Entered: 01/16/2015)

Case: 1:13-cv-74 As of: 11/03/2017 12:28 PM EDT 9 of 14

01/16/2015 01/16/2015
01/16/2015 01/16/2015 01/16/2015 01/16/2015 01/16/2015 01/16/2015 01/16/2015 01/16/2015 01/16/2015 01/16/2015 01/16/2015 01/16/2015 01/16/2015 01/16/2015

68 NOTICE of filing of Deposition of Lynn Periatt without Exhibits taken 12/16/2013 by Defendants Director, Ohio Department of Aging, Medicaid Director, Office of Medical Assistance (Attachments: # 1 Exhibit Transcript of Deposition) (Hawkinson, Cheryl) Modified docket text on 1/21/2015 (eh1). (Entered: 01/16/2015)
69 Deposition of Devona Jeter's without Exhibits taken 12/16/2013 by Defendants Director, Ohio Department of Aging, Medicaid Director, Office of Medical Assistance (Attachments: # 1 Exhibit Deposition of Devona Jeter without exhibits) ***Please note that p. 53 of the deposition is misfiled as p. 35 of the pdf. ***** (Hawkinson, Cheryl) Modified docket text on 1/21/2015 (eh1). (Entered: 01/16/2015)
70 ORDER granting 66 Motion for Leave to File to File the Declaration of Janet E. Pecquet, with Attachments, Under Seal. Signed by Magistrate Judge Karen L. Litkovitz on 1/16/15. (eh) (Entered: 01/16/2015)
73 NOTICE by Plaintiffs Kathryn A. Price, Marilyn Wenman Of Manual Filing of the Declaration of Janet E. Pecquet (Pecquet, Janet) (Entered: 01/16/2015)
74 MOTION for Summary Judgment by Plaintiffs Kathryn A. Price, Marilyn Wenman. Responses due by 2/9/2015 (Pecquet, Janet) (Entered: 01/16/2015)
75 AFFIDAVIT re 74 MOTION for Summary Judgment Declaration of Cecil Albright by Plaintiffs Kathryn A. Price, Marilyn Wenman. (Pecquet, Janet) (Entered: 01/16/2015)
76 AFFIDAVIT re 74 MOTION for Summary Judgment Declaration Christopher Lavin by Plaintiffs Kathryn A. Price, Marilyn Wenman. (Attachments: # 1 Exhibit 1 through 4) (Pecquet, Janet) (Entered: 01/16/2015)
77 MOTION to Certify Class and Appointment of Class Counsel by Plaintiffs Kathryn A. Price, Marilyn Wenman. Responses due by 2/9/2015 (Attachments: # 1 Exhibit A) (Pecquet, Janet) (Entered: 01/16/2015)
78 AFFIDAVIT re 77 MOTION to Certify Class and Appointment of Class Counsel, 74 MOTION for Summary Judgment Declaration of C. Nietzke by Plaintiffs Kathryn A. Price, Marilyn Wenman. (Attachments: # 1 Exhibit A) (Pecquet, Janet) (Entered: 01/16/2015)
79 AFFIDAVIT re 77 MOTION to Certify Class and Appointment of Class Counsel, 74 MOTION for Summary Judgment Declaration of K. Brod by Plaintiffs Kathryn A. Price, Marilyn Wenman. (Pecquet, Janet) (Entered: 01/16/2015)
80 AFFIDAVIT re 77 MOTION to Certify Class and Appointment of Class Counsel, 74 MOTION for Summary Judgment Declaration of K. Price by Plaintiffs Kathryn A. Price, Marilyn Wenman. (Attachments: # 1 Exhibit A and B) (Pecquet, Janet) (Entered: 01/16/2015)
81 AFFIDAVIT re 77 MOTION to Certify Class and Appointment of Class Counsel, 74 MOTION for Summary Judgment Declaration of M. Wenman by Plaintiffs Kathryn A. Price, Marilyn Wenman. (Attachments: # 1 Exhibit A) (Pecquet, Janet) (Entered: 01/16/2015)
82 AFFIDAVIT re 77 MOTION to Certify Class and Appointment of Class Counsel, 74 MOTION for Summary Judgment Declaration of K. Phillips by Plaintiffs Kathryn A. Price, Marilyn Wenman. (Attachments: # 1 Exhibit A through G) (Pecquet, Janet) (Entered: 01/16/2015)
83 AFFIDAVIT re 77 MOTION to Certify Class and Appointment of Class Counsel, 74 MOTION for Summary Judgment Declaration of R. Nielsen by Plaintiffs Kathryn A. Price, Marilyn Wenman. (Attachments: # 1 Exhibit A through C) (Pecquet, Janet) (Entered: 01/16/2015)
84 AFFIDAVIT re 77 MOTION to Certify Class and Appointment of Class Counsel Declaration of K. Cannon by Plaintiffs Kathryn A. Price, Marilyn Wenman. (Pecquet, Janet) (Entered: 01/16/2015)
85 AFFIDAVIT re 77 MOTION to Certify Class and Appointment of Class Counsel Declaration of A. Rich by Plaintiffs Kathryn A. Price, Marilyn Wenman. (Pecquet, Janet) (Entered: 01/16/2015)

Case: 1:13-cv-74 As of: 11/03/2017 12:28 PM EDT 10 of 14

01/16/2015 01/16/2015 01/16/2015 01/16/2015
01/16/2015 01/20/2015 01/20/2015 01/21/2015
01/21/2015 02/19/2015 02/19/2015 02/20/2015 02/20/2015

86 AFFIDAVIT re 77 MOTION to Certify Class and Appointment of Class Counsel Declaration of P. Cassady by Plaintiffs Kathryn A. Price, Marilyn Wenman. (Pecquet, Janet) (Entered: 01/16/2015)
87 AFFIDAVIT re 77 MOTION to Certify Class and Appointment of Class Counsel Declaration of A. Burke by Plaintiffs Kathryn A. Price, Marilyn Wenman. (Pecquet, Janet) (Entered: 01/16/2015)
88 AFFIDAVIT re 77 MOTION to Certify Class and Appointment of Class Counsel Declaration of J. Pecquet by Plaintiffs Kathryn A. Price, Marilyn Wenman. (Pecquet, Janet) (Entered: 01/16/2015)
89 MOTION for Summary Judgment by Defendants Director, Ohio Department of Aging, Medicaid Director, Office of Medical Assistance. Responses due by 2/9/2015 (Attachments: # 1 Exhibit Former OAC 173−38−03, # 2 Exhibit CMS Approval Letter, # 3 Exhibit 2011 Waiver Application, # 4 Exhibit Hobbs Affidavit, # 5 Exhibit Selected pages from Waiver instructions, # 6 Exhibit Redacted Hillegar Application, # 7 Exhibit Redacted Hilleger Case Note Report, # 8 Exhibit Selected pages from Periatt Depo, # 9 Exhibit Selected page of Jeter Depo, # 10 Exhibit Redacted Plaintiffs Response to First set of Admissions, # 11 Exhibit Redacted Saunders Case Note Report, # 12 Exhibit Redacted Suanders Application) (Hawkinson, Cheryl) (Entered: 01/16/2015)
90 NOTICE by Defendants Director, Ohio Department of Aging, Medicaid Director, Office of Medical Assistance of Manual Filing of Deposition Exhibits of Jeter and Periatt Under Seal (Hawkinson, Cheryl) (Entered: 01/16/2015)
91 AFFIDAVIT re 77 MOTION to Certify Class and Appointment of Class Counsel, 74 MOTION for Summary Judgment Declaration of Janet E. Pecquet with Redacted Exhibits A through AA by Plaintiffs Kathryn A. Price, Marilyn Wenman. (Attachments: # 1 Exhibit A through AA Redacted) (Pecquet, Janet) (Entered: 01/20/2015)
92 ORDER until further notice granting defendants' 67 Motion for leave to file exhibits of Davona Jeter and Lynn Periatt depositions' under Seal. Signed by Magistrate Judge Karen L. Litkovitz on 1/20/2015. (art) (Entered: 01/20/2015)
94 NOTICE of Filing by Plaintiffs Kathryn A. Price, Marilyn Wenman re 81 Affidavit, 88 Affidavit, 83 Affidavit, 78 Affidavit, 84 Affidavit, 80 Affidavit, 87 Affidavit, 91 Affidavit, 77 MOTION to Certify Class and Appointment of Class Counsel, 85 Affidavit, 79 Affidavit, 74 MOTION for Summary Judgment , 75 Affidavit, 76 Affidavit, 82 Affidavit, 86 Affidavit (Pecquet, Janet) Modified to clarify docket text on 1/22/2015 (jee1). (Entered: 01/21/2015)
95 NOTICE by Defendants Director, Ohio Department of Aging, Medicaid Director, Office of Medical Assistance re 89 MOTION for Summary Judgment signature page 33 of Defendants' Motion for Summary Judgment (Hawkinson, Cheryl) (Entered: 01/21/2015)
96 MOTION for Leave to File Excess Pages of Memorandum in Opposition to Defendants' Motion for Summary Judgment by Plaintiffs Kathryn A. Price, Marilyn Wenman. (Pecquet, Janet) (Entered: 02/19/2015)
97 MOTION to Seal Document Defendants' Motion to File Exhibit 4 of Hope Roberts' Deposition and Affidavit of Matthew Hobbs Under Seal by Defendants Director, Ohio Department of Aging, Medicaid Director, Office of Medical Assistance. (Hawkinson, Cheryl) (Entered: 02/19/2015)
98 NOTICE by Defendants Director, Ohio Department of Aging, Medicaid Director, Office of Medical Assistance Notice of Manual Filing of Exhibit 4 of Hope Roberts' Re−deposition and Affidaivt of Matthew Hobbs (Hawkinson, Cheryl) (Entered: 02/20/2015)
99 NOTICE by Defendants Director, Ohio Department of Aging, Medicaid Director, Office of Medical Assistance Defendants' Notice of Filing the Re−deposition of Hope Roberts and the Deposition of Matthew Hobbs (Attachments: # 1 Exhibit Hope Roberts' Re−deposition, # 2 Exhibit Matthew Hobbs' Deposition) (Hawkinson, Cheryl) (Entered: 02/20/2015)

Case: 1:13-cv-74 As of: 11/03/2017 12:28 PM EDT 11 of 14

02/20/2015 02/20/2015 02/20/2015 02/20/2015
02/20/2015 02/23/2015 02/24/2015 02/26/2015 03/09/2015 03/13/2015 03/13/2015 03/13/2015
03/25/2015 03/26/2015 04/10/2015

102 RESPONSE in Opposition re 89 MOTION for Summary Judgment with Exhibits and Declaration of Janet E. Pecquet filed by Plaintiffs Kathryn A. Price, Marilyn Wenman. (Attachments: # 1 Affidavit) (Pecquet, Janet) (Entered: 02/20/2015)
103 MOTION Judicial Notice by Plaintiffs Kathryn A. Price, Marilyn Wenman. (Pecquet, Janet) (Entered: 02/20/2015)
104 RESPONSE in Opposition re 74 MOTION for Summary Judgment Defendants' Memorandum in Opposition to Plaintiffs' Motion for Summary Judgment filed by Defendants Director, Ohio Department of Aging, Medicaid Director, Office of Medical Assistance. (Hawkinson, Cheryl) (Entered: 02/20/2015)
105 RESPONSE in Opposition re 77 MOTION to Certify Class and Appointment of Class Counsel Defendants' Memorandum in Opposition to Plaintiffs' Motion and Memorandum for Class Certification and Appointment of Class Counsel filed by Defendants Director, Ohio Department of Aging, Medicaid Director, Office of Medical Assistance. (Attachments: # 1 Exhibit Exhibit 1 Affidavit of Matthew Hobbs Placeholder, # 2 Exhibit Excerpts of Roberts' Re−deposition) (Hawkinson, Cheryl) (Entered: 02/20/2015)
106 NOTATION ORDER granting plaintiff's 96 Motion for Leave to File memorandum in opposition to defendants' motion for summary judgment in Excess of (20) Pages. Signed by Magistrate Judge Karen L. Litkovitz on 2/20/2015. (art) (Entered: 02/20/2015)
107 ORDER granting defendants' 97 Motion for leave to file Exhibit 4 of Hope Roberts' deposition 110 and affidavit of Matthew Hobbs 101 under seal. Signed by Magistrate Judge Karen L. Litkovitz on 2/20/2015. (art) (Entered: 02/23/2015)
108 ORDER Setting Oral Argument Hearing on Motions for Summary Judgment 74 & 89 : Oral Argument Hearing set for Wednesday, 3/25/2015 at 09:30 AM in Courtroom 708 − Cincinnati before Magistrate Judge Karen L. Litkovitz. Signed by Magistrate Judge Karen L. Litkovitz on 2/24/2015. (art) (Entered: 02/24/2015)
109 ORDER Re−Setting Oral Argument Hearing on Motions for Summary Judgment 74 & 89 : Oral Argument Hearing reset for Tuesday, 4/28/2015 at 10:00 AM in Courtroom 708 − Cincinnati before Magistrate Judge Karen L. Litkovitz. Signed by Magistrate Judge Karen L. Litkovitz on 2/26/2015. (art) (Entered: 02/26/2015)
110 NOTICE by Plaintiffs Kathryn A. Price, Marilyn Wenman (Pecquet, Janet) (Entered: 03/09/2015)
111 REPLY to Response to Motion re 77 MOTION to Certify Class and Appointment of Class Counsel filed by Plaintiffs Kathryn A. Price, Marilyn Wenman. (Attachments: # 1 Affidavit, # 2 Affidavit) (Pecquet, Janet) (Entered: 03/13/2015)
112 REPLY to Response to Motion re 74 MOTION for Summary Judgment filed by Plaintiffs Kathryn A. Price, Marilyn Wenman. (Pecquet, Janet) (Entered: 03/13/2015)
113 REPLY to Response to Motion re 89 MOTION for Summary Judgment Defendants' Reply to Plaintiffs' Memorandum in Opposition to Defendants' Motion for Summary Judgment filed by Defendants Director, Ohio Department of Aging, Medicaid Director, Office of Medical Assistance. (Attachments: # 1 Exhibit Affidavit of Matthew Hobbs, # 2 Exhibit March 1, 2014 Amended Waiver) (Hawkinson, Cheryl) (Entered: 03/13/2015)
114 MOTION for Leave to Appear Pro Hac Vice of Julia A. Carter (Filing fee $ 200, receipt number 0648−4985892) by Plaintiffs Kathryn A. Price, Marilyn Wenman. (Pecquet, Janet) (Entered: 03/25/2015)
115 ORDER granting plaintiff's 114 Motion for Leave to Appear Pro Hac Vice. Attorney Julia A. Carter is hereby admitted to appear pro hac vice in this matter on behalf of plaintiffs. Signed by Magistrate Judge Karen L. Litkovitz on 3/26/2015. (art) (Entered: 03/26/2015)
116 ORDER that the Court hereby vacates the final pretrial conference set for 6/11/2015, and the trial date of 6/22/2015. The parties need not submit a join pretrial statement absent further order of the Court. If necessary, the Court will conduct a telephone status conference with the parties following the Court's resolution of the pending

Case: 1:13-cv-74 As of: 11/03/2017 12:28 PM EDT 12 of 14

04/10/2015 04/28/2015
04/29/2015 05/08/2015 09/01/2015
09/01/2015 09/30/2015 09/30/2015 10/01/2015 10/15/2015 10/15/2015
10/19/2015

motions. Signed by Magistrate Judge Karen L. Litkovitz on 4/10/2015. (art) (Entered: 04/10/2015)
117 ORDER regarding 109 Oral argument on the parties' cross−motions for summary judgment and on plaintiffs' motion for class certification set for Tuesday, 4/28/2015. Signed by Magistrate Judge Karen L. Litkovitz on 4/10/2015. (art) (Entered: 04/10/2015)
118 Minute Entry: Case called this date before Magistrate Judge Karen L. Litkovitz for Oral Argument Hearing on 74 , 77 , 89 MOTIONS for Summary Judgment and Class certification. Counsel for plaintiffs and defendants present. Arguments heard. Defendants granted until 5/8/2015 to file written responses to the 117 Court's questions regarding this matter. Matter taken under submission. Order of the Court to follow. (Court Reporter Luke Lavin, Official Reporter.) (art) (Entered: 04/28/2015)
119 Response to Court's Pre−Oral Argument Questions by Plaintiffs Kathryn A. Price, Marilyn Wenman. (Pecquet, Janet) (Entered: 04/29/2015)
120 Response re 117 Order Defendants' Responses to the Court's April 10, 2015 Order by Defendants Director, Ohio Department of Aging, Medicaid Director, Office of Medical Assistance. (Hawkinson, Cheryl) (Entered: 05/08/2015)
121 ORDER that plaintiffs' 77 MOTION for class certification and appointment of class counsel is Granted. Plaintiffs' current counsel is hereby Appointed to serve as class counsel. The following class is certified: All Ohio individuals who meet the eligibility standards for the assisted living Medicaid waiver for the months occuring no earlier than three months prior to the month of application, but who are denied coverage under the assisted living Medicaid waiver for all or some of those months. Plaintiffs' 74 MOTION for summary judgment is Granted, and defendants' 89 MOTION for summary judgment is Denied. Signed by Magistrate Judge Karen L. Litkovitz on 9/1/2015. (art) (Entered: 09/01/2015)
122 JUDGMENT in a Civil Case pursuant to 121 Order signed by Magistrate Judge Karen L. Litkovitz on 9/1/2015. (art) (Entered: 09/01/2015)
123 NOTICE OF APPEAL by Defendants Director, Ohio Department of Aging, Medicaid Director, Office of Medical Assistance. Filing fee $ 505, receipt number 0648−5225575. (Hawkinson, Cheryl) (Entered: 09/30/2015)
124 MOTION to Stay re 121 Order on Motion for Summary Judgment, Order on Motion to Certify Class,, Order on Motion for Miscellaneous Relief,,,,,,,, DEFENDANTS' MOTION FOR STAY OF THE COURT'S ORDER PENDING APPEAL by Defendants Director, Ohio Department of Aging, Medicaid Director, Office of Medical Assistance. Responses due by 10/26/2015 (Hawkinson, Cheryl) (Entered: 09/30/2015)
USCA Case Number 15−4066 for 123 Notice of Appeal filed by Director, Ohio Department of Aging, Medicaid Director, Office of Medical Assistance. Case Manager − Renee M. Jefferies. (sct) (Entered: 10/01/2015)
125 MOTION for Attorney Fees AND COSTS by Plaintiffs Kathryn A. Price, Marilyn Wenman. Responses due by 11/9/2015 (Pecquet, Janet) (Entered: 10/15/2015)
126 NOTICE by Plaintiffs Kathryn A. Price, Marilyn Wenman re 125 MOTION for Attorney Fees AND COSTS (Attachments: # 1 Affidavit Declaration of Peter L. Cassady in Support of Motion for Attorney Fees and Costs, # 2 Affidavit Declaration of Ashley S. Burke in Support of Motion for Attorney Fees and Costs, # 3 Affidavit Declaration of Michael O'Hara in Support of Motion for Attorney Fees and Costs, # 4 Affidavit Declaration of Anna Rich in Support of Motion for Attorney Fees and Costs, # 5 Affidavit Declaration of Eric Carlson in Support of Motion for Attorney Fees and Costs, # 6 Affidavit Declaration of Richard Pearl in Support of Motion for Attorney Fees and Costs, # 7 Affidavit Declaration of Tom Bedall in Support of Motion for Attorney Fees and Costs) (Pecquet, Janet) (Entered: 10/15/2015)
127 MOTION to Stay re 125 MOTION for Attorney Fees AND COSTS by Defendants Director, Ohio Department of Aging, Medicaid Director, Office of Medical Assistance. Responses due by 11/12/2015 (Hawkinson, Cheryl) (Entered: 10/19/2015)

Case: 1:13-cv-74 As of: 11/03/2017 12:28 PM EDT 13 of 14

10/20/2015
10/21/2015
10/22/2015 10/30/2015 11/03/2015
11/06/2015 11/09/2015 11/12/2015

128 RESPONSE in Opposition re 124 MOTION to Stay re 121 Order on Motion for Summary Judgment, Order on Motion to Certify Class,, Order on Motion for Miscellaneous Relief,,,,,,,, DEFENDANTS' MOTION FOR STAY OF THE COURT'S ORDER PENDING APPEAL filed by Plaintiffs Kathryn A. Price, Marilyn Wenman. (Pecquet, Janet) (Entered: 10/20/2015)
129 ORDER that plaintiffs' response to defendants' motion to stay briefing on plaintiff's motion for attorney fees and costs be filed by 10/30/2015, and defendants' reply thereto be filed by 11/6/2015. The Court hereby Stays the defendants' response time for filing a memorandum in opposition to plaintiffs' motion for attorney fees and costs pending the Court's resolution of the instant motion to stay briefing. Signed by Magistrate Judge Karen L. Litkovitz on 10/21/2015. (art) (Entered: 10/21/2015)
130 NOTICE by Plaintiffs Kathryn A. Price, Marilyn Wenman (Pecquet, Janet) (Entered: 10/22/2015)
131 RESPONSE in Opposition re 127 MOTION to Stay re 125 MOTION for Attorney Fees AND COSTS filed by Plaintiffs Kathryn A. Price, Marilyn Wenman. (Pecquet, Janet) (Entered: 10/30/2015)
132 REPLY to Response to Motion re 124 MOTION to Stay re 121 Order on Motion for Summary Judgment, Order on Motion to Certify Class,, Order on Motion for Miscellaneous Relief,,,,,,,, DEFENDANTS' MOTION FOR STAY OF THE COURT'S ORDER PENDING APPEAL filed by Defendants Director, Ohio Department of Aging, Medicaid Director, Office of Medical Assistance. (Hawkinson, Cheryl) (Entered: 11/03/2015)
133 REPLY to Response to Motion re 127 MOTION to Stay re 125 MOTION for Attorney Fees AND COSTS filed by Defendants Director, Ohio Department of Aging, Medicaid Director, Office of Medical Assistance. (Hawkinson, Cheryl) (Entered: 11/06/2015)
134 AMENDED DOCUMENT by Defendants Director, Ohio Department of Aging, Medicaid Director, Office of Medical Assistance. Amendment to 133 Reply to Response to Motion, . (Hawkinson, Cheryl) (Entered: 11/09/2015)
135 Transcript of Motions Hearing Proceedings held on April 28, 2015, before Karen L. Litkovitz, Magistrate Judge. Court Reporter/Transcriber Luke Lavin (Official), Telephone number (513) 564−7500. 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.

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.

11/12/2015 12/04/2015 12/24/2015 01/07/2016 01/20/2016

For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 12/3/2015. Redacted Transcript Deadline set for 12/14/2015. Release of Transcript Restriction set for 2/10/2016. (Lavin, Luke) (Entered: 11/12/2015)
136 ORDER denying 124 Motion to Stay Pending Appeal. Signed by Magistrate Judge Karen L. Litkovitz on 11/12/15. (sct) (Entered: 11/12/2015)
137 MOTION Indicative Ruling by Plaintiffs Kathryn A. Price, Marilyn Wenman. Responses due by 12/31/2015 (Pecquet, Janet) (Entered: 12/04/2015)
138 RESPONSE to Motion re 137 MOTION Indicative Ruling filed by Defendants Director, Ohio Department of Aging, Medicaid Director, Office of Medical Assistance. (Hawkinson, Cheryl) (Entered: 12/24/2015)
139 REPLY to Response to Motion re 137 MOTION Indicative Ruling filed by Plaintiffs Kathryn A. Price, Marilyn Wenman. (Attachments: # 1 Exhibit Exhibit A) (Pecquet, Janet) (Entered: 01/07/2016)
140 ORDER that if the Sixth Circuit remanded this case pursuant to Rule 62.1, the Court would Grant plaintiffs' motion for relief under rule 60(a) and would enter an amended

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02/01/2016 02/01/2016 09/30/2016 10/25/2016 11/02/2016
11/02/2016

order containing the following class certification: All Ohio individuals who, on or after 2/1/2011, meet the eligibility standards for the assisted living Medicaid waiver for the months occurring no earlier than (3) months prior to the month of application, but who are denied coverage under the assisted living Medicaid waiver for all or some of those months. Signed by Magistrate Judge Karen L. Litkovitz on 1/20/2016. (art) (Entered: 01/20/2016)
141 ORDER of USCA Upon consideration of appellees motion to remand, It is therefore ORDERED that the motion be and it hereby is DENIED as to 123 Notice of Appeal filed by Director, Ohio Department of Aging, Medicaid Director, Office of Medical Assistance Note: No Mandate details noted. (pb) (Entered: 02/01/2016)
142 ORDER in the interest of judicial economy, defendants' 127 MOTION to stay briefing is Granted. Further briefing on plaintiffs' 125 Motion for Attorney Fees and costs is Stayed until after the 6th Circuit rules on defendants' appeal. Signed by Magistrate Judge Karen L. Litkovitz on 2/1/2016. (art) (Entered: 02/01/2016)
143 USCA OPINION AND JUDGMENT as to 123 Notice of Appeal: The Sixth Circuit Reverses the Judgment of the District Court and Remands the case with instructions to enter judgment in favor of the defendants. Note: Mandate to issue. (er) (Entered: 10/04/2016)
144 MANDATE of USCA as to 123 Notice of Appeal: No costs taxed. (er) (Entered: 10/26/2016)
145 ORDER pursuant to the Sixth Circuit's order and mandate, summary judgment is hereby entered in favor of defendants on all claims. Accordingly, this case is Dismissed and Terminated on the docket of this Court. Because plaintiffs are no longer the prevailing party, their motion for attorney fees and costs 125 is Denied. Signed by Magistrate Judge Karen L. Litkovitz on 10/31/2016. (art) (Entered: 11/02/2016)
146 JUDGMENT in a Civil Case pursuant to 145 Order entered by by Magistrate Judge Karen L. Litkovitz on 11/2/2016. (art) (Entered: 11/02/2016)

 
 October 15, 2015
Victoria Wachino, Director Center for Medicaid and CHIP Services Centers for Medicare and Medicaid Services 7500 Security Boulevard Baltimore, Maryland 21244 Via e-mail: Victoria.Wachino1@cms.hhs.gov
Re: Request for Revision of Medicaid Policy to Eliminate Coverage Gap in Home and Community-Based Services, In Accord with Recent Federal Court Ruling
Dear Ms. Wachino:
The undersigned are national groups representing the interests of older persons and persons with disabilities. We write to request that the Centers for Medicare and Medicaid Services (CMS) immediately take steps to revise Medicaid coverage rules that unfairly limit consumer access to home and community-based services (HCBS). The need for action is demonstrated by a recent federal court ruling that CMS’s current policies conflict with the Medicaid Act, as discussed below.
The Federal Statute and CMS’s Current Policy
Under the Medicaid Act, Medicaid programs must provide coverage for up to three months prior to the month of application, for any time during which the applicant met eligibility requirements.1 This requirement protects applicants from being saddled with unaffordable health care bills during the transition from private-pay status to Medicaid eligibility. Because of this protection, an applicant should not be disadvantaged by the time required for a Medicaid program to process an application, since coverage can extend back not only to the date of application, but also to three months prior to the application month.
Unfortunately, current CMS policy denies this protection when an applicant requests coverage of home and community-based services. For HCBS provided pursuant to an HCBS waiver, coverage is prospective-only from the date on which the state Medicaid program (or its agent) approves an HCBS service plan, as explained in CMS’s technical guidance:
1 42 U.S.C. § 1396a(a)(34); see also 42 C.F.R. § 435.915(a) (implementing regulation).

Federal financial participation (FFP) may not be claimed for waiver services that are furnished prior to the development of the service plan or for waiver services that are not included in an individual’s service plan. A service plan may not be backdated. … FFP may be claimed only for those waiver services that are included in the service plan and may not be claimed for services furnished prior to the development of the service or for services not included in the service plan.2
CMS’s Policy Significantly Limits Access to Home and Community-Based Services
Because of CMS’s policy, many consumers are unable to access Medicaid HCBS coverage for which they are otherwise eligible. If a person already receives home and community-based services at the time of filing an application, he or she likely will incur unaffordable charges in the time between when a Medicaid application is filed, and when the Medicaid program (or its agent) makes a formal level-of-care determination and/or approves the Medicaid service plan. Other persons may never receive home and community-based services, or have their needed home and community-based services delayed, because they and/or their HCBS providers cannot take the financial risk of HCBS being provided during the pendency of a Medicaid application, when Medicaid coverage will not be available. For some, Medicaid waiver coverage delays will increase the risk of unnecessary institutionalization.
The contrast with Medicaid’s coverage of nursing facility expenses is striking and instructive. Assume that a person has a medical need for nursing facility services or the equivalent, and is considering whether to enter a nursing facility or an assisted living facility. Under those circumstances, CMS’s coverage policies strongly incentivize choosing the nursing facility over the less-institutional assisted living services. A Medicaid program will cover nursing facility expenses up to three months prior to the month of application, but will cover assisted living services only prospectively from the date a service plan is approved.
A Federal Court Recently Ruled that CMS’s Policy Violates the Medicaid Act
In Price v. Medicaid Director,3 two assisted living residents filed a class action suit against the Ohio Medicaid program and its agents, alleging that the state violates section 1396a(a)(34) by granting assisted living coverage only prospectively from the date of service plan approval. On September 1, 2015, the court granted summary judgment in the residents’ favor, certifying a statewide class of similarly situated individuals and ordering the state to bring its assisted living program into compliance with section 1396a(a)(34) — namely, to offer coverage up to three months prior to the month of application, for all days, weeks or months for which the applicant meets eligibility requirements.
2 CMS, Instructions, Technical Guide and Review Criteria, Application for a § 1915(c) Home and Community-Based Waiver, at 46, 178 (Jan. 2015); see also CMS, Olmstead Letter No. 3, Attachment 3-a (Earliest Eligibility Date in HCBS Waivers) (July 25, 2000) (coverage not available until approval of service plan). 3 Case No. 1:13-cv-74, 2015 WL 5117895, 2015 U.S. Dist. LEXIS 116384 (S.D. Ohio 2015). A copy of this ruling is enclosed with this letter.

In defending against the lawsuit, the state relied heavily on CMS’s HCBS coverage policy, but the court found that “CMS’s interpretation is not warranted deference because it lacks any rationale and is contrary to the clear intent of Congress.”4 As the court explained, section 1396a(a)(34) was enacted for two primary reasons: to protect persons from being billed privately while meeting Medicaid eligibility standards, and to encourage providers to provide services prior to eligibility being formally granted. CMS’s policy, however, “runs counter to these dual purposes,” according to the court.5
CMS’s HCBS coverage policy was also found to be inconsistent with the HCBS waiver statute, 42 U.S.C. § 1396n(c). HCBS waivers are meant to provide a non-institutional alternative to nursing facilities, but the CMS policy creates a financial incentive to enter a nursing facility rather than receive HCBS:
By prohibiting retroactive coverage, Ohio’s assisted living waiver program frustrates Congress’s goal of furthering deinstitutionalization and lowering Medicaid expenditures for individuals who would otherwise require nursing home care but with supportive services can live safely in the community. Because of the delays inherent in Ohio’s postapplication processes, individuals are faced with remaining institutionalized in a nursing home or choosing more expensive nursing home care in the first instance while they wait for Ohio to determine their eligibility.6
Notably, the court found that HCBS can be “provided pursuant to a written plan of care” (as required by section 1396n(c)) even if services are provided before the plan of care (or “service plan”) is approved. Once a service plan is approved, a Medicaid program can look back on the coverage period required by section 1396a(a)(34). If services provided that time were “in compliance with” or “in accordance with” the service plan, they can be covered. If not, those services will not be covered, subject to the applicant’s appeal rights.7
Conclusion: CMS Should Revise its HCBS Coverage Policy to Eliminate the Current Disincentive to Use HCBS
For the reasons described above, we believe that the current HCBS coverage policy is not supportable. It inappropriately creates an incentive to choose institutional care over HCBS, and cannot be reconciled with the clear requirements of section 1396a(a)(34). The Price decision is well-reasoned, and likely will be very persuasive in any future challenge to a state Medicaid program’s refusal to cover HCBS prior to service plan approval. Although the Price plaintiffs’ claims were based primarily on the Medicaid Act, claims may also arise under the Americans with Disabilities Act and the Olmstead mandate for similarly situated individuals for whom a delay in Medicaid waiver coverage leads to increased risk of unnecessary institutionalization.
We appreciate CMS’s efforts in recent years to develop non-institutional alternatives for Medicaid consumers who need long-term services and supports. Revision of the HCBS coverage policy, as
4 Price v. Medicaid Director, at 39. 5 Id. at 41. 6 Id. at 43. 7 Id. at 31.

described in this letter, is an important and necessary next step. Accordingly, we request that CMS as soon as possible issue necessary guidance that announces the availability of HCBS coverage pursuant to section 1396a(a)(34), without regard to the date on which a service plan is approved. The policy revision should apply to all HCBS, whether provided in a private home, residential facility, or other setting.
Thank you for your consideration of this issue. Please contact Eric Carlson at ecarlson@justiceinaging.org or (213) 674-2813 with any questions or suggestions. We would be happy to meet with you and your staff to discuss any specifics of this issue and the policy changes that are required.
Thank you.
Sincerely,
AARP ACCSES Advance CLASS Aging Life Care Association American Association on Health and Disability American Network of Community Options and Resources Caring Across Generations Center for Elder Care and Advanced Illness, Altarum Institute Christopher & Dana Reeve Foundation Community Catalyst Family Voices Justice in Aging LeadingAge National Academy of Elder Law Attorneys National Council on Aging National Council on Independent Living National Health Law Program United Cerebral Palsy
cc: Alissa Deboy, Director, Disabled and Elderly Health Programs Group Kirsten Jensen, Director, Division of Benefits and Coverage Ralph Lollar, Director, Division of Long Term Services and Supports Kathy Greenlee, Administrator, Administration for Community Living

 
 No. 15-4066
_____________________________________________________________ _____________________________________________________________
IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
__________________________________
KATHRYN A. PRICE, as next friend and Attorney-in-Fact on behalf of GERALDINE SAUNDERS: MARILYN WENMAN, Executor
of the Estate of Better Hilleger, Deceased, on behalf of BETTY HILLEGER,
Plaintiffs-Appellees,
v.
MEDICAID DIRECTOR, OFFICE OF MEDICAL ASSISTANCE, OHIO DEPARTMENT OF JOB AND FAMILY SERVICES, DIRECTOR; OHIO
DEPARTMENT OF AGING.,
Defendants-Appellants. _______________________________
On Appeal from the United States District Court For The Southern District of Ohio
_______________________________
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING APPELLANT AND REVERSAL _______________________________
BENJAMIN C. MIZER Principal Deputy Assistant Attorney General CARTER M. STEWART United States Attorney ALISA B. KLEIN JEFFREY CLAIR (202) 514-4028 jeffrey.clair@usdoj.gov Attorneys, Civil Division Room 7243, Department of Justice 950 Pennsylvania Ave., N.W. Wa shington, D.C. 20530

TABLE OF CONTENTS
STATEMENT OF INTEREST ........................................................................1
QUESTION PRESENTED..............................................................................2
INTRODUCTION AND SUMMARY ............................................................2
STATEMENT...................................................................................................5
A. Statutory Background..................................................................5
B. Factual Background and District Court Proceedings..................8
ARGUMENT ................................................................................................ 12
I. Home And Community-Based Services May Not Be Covered Before A Beneficiary Is Admitted To the Waiver Program And A Plan Of Care Is In Place .................... 12
II. The District Court’s Holding Contravenes Statutory Limitations On Retroactive Coverage of Waiver Services, The Terms Of Secretary’s Approval Of Ohio’s Optional Waiver Program, And The State’s Assurances that Addition Of Waiver Services Will Not Increase Medicaid Costs ........................................... 23
CONCLUSION............................................................................................. 30
FRAP 32(a)(7) CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

Cases:

Page

Armstrong v. Exceptional Child, Inc., 135 S. Ct. 1378 (2015)...................... 5

Atkins v. Rivera, 477 U.S.154 (1986) ............................................................. 5

Bryson v. Shumway, 308 F.3d 79 (1st Cir. 2002)............................ 7, 9, 11, 13

Carroll v. DeBuono, 998 F. Supp. 190 (1997).............................................. 25

Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) ............................................................................... 14, 15, 16, 20

Douglas v. Independent Living Center of Southern California, Inc., 132 S. Ct. 1204 (2014) ......................................................................................... 14

FPC v. Idaho Power Co., 344 U.S. 17 (1952) ....................................... 27, 28

Gonzales v. Oregon. 546 U.S. 243 (2006).................................................... 14

Harris v. Olzewski, 442 F.3d 456 (6th Cir. 2006) ........................................ 16

Managed Pharmacy Care v. Sebelius, 716 F.3d 1235 (9th Cir. 2013) ......... 16

Olmstead v LC, 527 U.S. 581 (1999) ............................................................. 6

Pharm. Research & Mfrs. Am. v. Thompson, 362 F.3d 817 (D.C. Cir. 2004) ........................................................................................ 15

Research & Mfrs. Am. v. Thompson, 362 F.3d 817 (D.C. Cir. 2004) ........... 15

Rosen v. Goetz, 410 F.3d 919 (6th Cir. 2005)............................. 16, 17, 18, 24

Sanchez v. Johnson, 416 F.3d 1051 (9th Cir. 2005) ...................................... 5

Schott v. Olszewski, 401 F.3d 682 (6th Cir. 2005) ........................................ 25

2

United States v. Mead Corp., 533 U.S. 218 (2001) ................................ 14, 15
Varsity Brands, Inc. v. Star Athletica, LLC, 799 F.3d 468 (6th Cir. 2015)... 14
Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498 (1990)..................................... 5
Statutes:
Pub. L. No. 97-35, § 2176, 95 Stat. 357, 813 (1981) ................................................6
42 U.S.C. 1396a ............................................................................................ 15 42 U.S.C. 1396a(a)(1)..................................................................................... 6 42 U.S.C. 1396a(a)(10)(A) ....................................................................... 6, 26 42 U.S.C. 1396a(a)(10)(B) ............................................................................. 6 42 U.S.C. 1396a(a)(34)........................................................... 9, 11, 24, 25, 26 42 U.S.C. 1396n(c) ..................................................................................... 6, 7 42 U.S.C. 1396n(c)(1)................................................................. 6, 7, 8, 12, 14 42 U.S.C. 1396n(c)(3)..................................................................................... 6 42 U.S.C. 1396n(c)(2)(D) ......................................................................... 7, 28 42 U.S.C. 1396n(c)(4)(B) ............................................................................... 6 42 U.S.C. 1396n(c)(i) ................................................................................... 27 42 U.S.C. 1396n(d) ......................................................................................... 7 42 U.S.C. 1396n(e) ......................................................................................... 7 42 U.S.C. 1396r(b)(2) ............................................................................. 11, 22
Regulations:
42 C.F.R. 440.167-181 .................................................................................... 6 42 C.F.R. 441.301(c)....................................................................................... 8 42 C.F.R. 483.20(a)....................................................................................... 22 42 C.F.R. 483.20(b)(2) .................................................................................. 22 42 C.F.R. 483.20(k)(2) .................................................................................. 22 42 C.F.R. 483.20(k)(2)(i) ...............................................................................11
Ohio Administrative Code 173-38-03(c)(1)(B) ............................................ 23
3

Legislative Materials: H. Conf. Rep. No. 97-208, 97th Cong., 1st Sess. 966 (1981), reprinted in
1981 U.S.C.C.A.N. 1010 ...................................................................... 13 Miscellaneous: Black’s Law Dictionary 1431 (Garner ed. 10th ed. 2014) ........................... 13
4

IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
_____________________________
No. 15-4066 ______________________________
KATHRYN A. PRICE, ET AL.,
Plaintiffs-Appellees,
v.
MEDICAID DIRECTOR, ET AL.,
Defendants-Appellants. _______________________________
On Appeal from the United States District Court For The Southern District of Ohio
_______________________________
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING APPELLANT AND REVERSAL _______________________________
STATEMENT OF INTEREST
The United States, through the Department of Health and Human
Service’s Centers for Medicare & Medicaid Services, administers the Medicaid
statute and provides federal financial participation in state expenditures for
medical assistance authorized under a state Medicaid plan. It has a direct
financial interest in the scope of Medicaid assistance provided by the States as
well as a substantial programmatic interest in ensuring that Medicaid-funded

services meet statutory standards for quality, appropriateness, freedom of individual choice, and patient safety.
QUESTION PRESENTED Whether a Medicaid beneficiary who establishes eligibility for home and community-based services authorized under a state waiver program is entitled to retroactive coverage for services rendered before admission to the waiver program and development of a statutorily-mandated plan of care.
INTRODUCTION AND SUMMARY The Medicaid statute authorizes States to provide “home and community-based” support services that enable a beneficiary who requires a level of care typically provided in a hospital, nursing home, or intermediate care facility to remain at home or in a community-based residential setting, such as an assisted living residence. Covered services include assistance with activities of daily living, personal care services, and other supportive services that help beneficiaries keep their preferred living arrangements and avoid institutionalization. Congress has imposed several important limitations on eligibility for these home and community-based services. One key requirement is that the services be rendered “pursuant to” a plan of care that is based on a comprehensive assessment of clinical and functional need, that ensures the
2

beneficiary can be safely treated outside an institutional setting, and that maximizes individual beneficiary choice.
The central question in this appeal is whether services rendered before this plan of care is in place qualify for Medicaid coverage. The district court concluded that so long as the prior services are consistent with a plan of care developed after the fact, they can be covered retroactively, for up to three months before the beneficiary applies for Medicaid benefits.
The court’s holding is contrary to the plain language of the statute and the Secretary’s consistent administrative interpretation. The statute provides that home and community-based services must be provided “pursuant to” a plan of care, not they need only be consistent with a plan of care developed after services are rendered. Moreover, the district court’s interpretation defeats the core purpose of the plan of care requirement. Congress intended to ensure that home and community-based services are based on a comprehensive assessment of need, an advance determination that home and communitybased services are appropriate for the beneficiary, and patient participation in the choice of services. The district court’s holding frustrates all these advance planning requirements.
The court’s holding is also inconsistent with the terms and conditions of the Secretary’s approval of the Ohio waiver program and the State’s underlying assurances that the addition of waiver services will not increase Medicaid
3

costs. States are not obligated to provide home and community-based services under a waiver program. Rather, these services are available only if the State elects to provide them, decides on the appropriate scope of waiver services, and obtains the approval of the Secretary of Health and Human Services. Among other requirements, a State must provide the Secretary with reasonable assurances that the addition of waiver services will not increase the average annual per capita costs for individuals who need a level care like that typically provided in a skilled nursing home or intermediate care facility.
Here, in compliance with long-standing HHS policy, Ohio only sought prospective coverage of waiver services. Its cost estimates were based on the assumption that coverage would be prospective only and limited to services provided after a beneficiary is admitted into the waiver program and after a plan of care is in place. The Secretary’s approval of the waiver program was based on that assumption as well. The district court’s holding would nonetheless compel Ohio to provide up to three months of additional, retroactive coverage for every beneficiary enrolled in the waiver program—a result at odds with the State’s costs assurances and the terms of the Secretary’s waiver approval.
For all these reasons, the district court’s judgment should be reversed.
4

STATEMENT A. Statutory Background Medicaid is a cooperative federal-state program established in 1965. It provides federal financial assistance to States for the purpose of reimbursing medical care provided to needy individuals. Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 502 (1990); Atkins v. Rivera, 477 U.S.154, 156 (1986). State participation in Medicaid is voluntary, but those States that elect to participate must comply with requirements imposed by the Medicaid statute and implementing regulations promulgated by the Secretary of Health and Human Services. Armstrong v. Exceptional Child, Inc., 135 S. Ct. 1378, 1382 (2015); Wilder, 496 U.S. at 502. The Medicaid statute authorizes States to provide, with the Secretary’s approval, “home and community-based services” that help a beneficiary receive care at home or in a community setting rather than in a nursing home or other long-term care institution. In 1981, Congress concluded that a disproportionate percentage of Medicaid resources were being used for longterm institutional care, and that many persons residing in Medicaid-funded nursing homes or intermediate care facilities would be capable of living at home or in the community if additional support services were available. See Sanchez v. Johnson, 416 F.3d 1051, 1054 (9th Cir. 2005). It accordingly enacted provisions authorizing States to provide case management services, homemaker
5

services, home health aide services, personal care services, and other support services (except room and board) that would enable a beneficiary to remain at home or in a community residential setting rather than entering a nursing home or similar institution. Pub. L. No. 97-35, § 2176, 95 Stat. 357, 813 (1981), adding 42 U.S.C. 1396n(c)(4)(B); see generally Olmstead v LC, 527 U.S. 581, 601 (1999); see also 42 C.F.R. 440.167-181 (defining home and community-based services).
States participating in Medicaid are not obligated to provide home and community-based services. See 42 U.S.C. 1396a(a)(10)(A) (listing services that must be provided as part of the State Medicaid plan). They may, however, provide these services to a limited number of beneficiaries under a state waiver program authorized by 42 U.S.C. 1396n(c). Medicaid generally requires that services offered under the state Medicaid plan be available state-wide, see 42 U.S.C. 1396a(a)(1), and that all beneficiaries have access to services of a comparable amount, duration, and scope. 42 U.S.C. 1396a(a)(10)(B). The Secretary, however, may waive these two statutory requirements with respect to the provision of home and community-based waiver services, thereby permitting a State Medicaid program to limit the number of beneficiaries eligible for these services, and to treat state payment for services provided under the waiver as reimbursable “medical assistance” authorized under the state Medicaid plan. 42 U.S.C. 1396n(c)(1), (3).
6

Home and community-based services under a waiver are available for three target populations: individuals who would otherwise require the level of care provided in a hospital, nursing facility, or intermediate care facility for individuals with intellectual disabilities, 42 U.S.C. 1396n(c)(1); individuals 65 years of age or older who require the level of care provided in a skilled nursing facility or intermediate care facility, 42 U.S.C. 1396n(d); and children under five years of age who, at the time of birth, were drug dependent or infected with AIDS, 42 U.S.C. 1396n(e). The Ohio home and community-based waiver at issue here was approved under 42 U.S.C. 1396n(c) and is open to Medicaideligible individuals age 21 or older who require skilled or intermediate level care.
The Medicaid statute imposes three conditions on these waiver services that are of particular relevance here. First, to obtain approval of the waiver, the State must provide reasonable assurances that the waiver program will be expenditure-neutral with respect to individuals who would need the level of care provided in an institutional setting; that is, the state must reasonably estimate that its average annual per capita expenditures for such individuals with the waiver program in place will not exceed per capita expenditures without the waiver program. 42 U.S.C. 1396n(c)(2)(D); see Bryson v. Shumway, 308 F.3d 79, 82-83 (1st Cir. 2002).
7

Second, the State must make a determination that an individual seeking services under the waiver program meets Medicaid’s income, resource, and other eligibility requirements, and that but for the provision of home and community based services, he or she would require the level of care provided in a hospital, nursing facility, or intermediate care facility for the mentally retarded. 42 U.S.C. 1396n(c)(1).
Finally, services under the waiver must be provided “pursuant to a written plan of care.” 42 U.S.C. 1396n(c)(1). Among other requirements, the plan of care must be based on an individualized assessment of clinical, support, and functional needs, identify the services that will meet these needs, identify risks to the individual and measures taken to minimize them, involve the individual in the planning process to the maximum extent feasible, and prevent the provision of unnecessary or inappropriate services. 42 C.F.R. 441.301(c).
B. Factual Background and District Court Proceedings 1. This case involves Ohio’s assisted living waiver program. The Ohio program provides services that enable an individual who might otherwise require care in a nursing facility or intermediate care institution to remain in assisted care or similar residential care facilities. Covered services include nursing services, personal care services (such as assistance with bathing, mobility, and dressing), on-duty response services, coordination of meals, social
8

and recreational planning, and non-medical transportation. District Court Order, CR. 121, Page ID # 2017-18. To be eligible for the program, an individual must have a need for intermediate or skilled level care, reside in a residential care facility certified by the Ohio Department of Aging, be eligible for Medicaid, and have an appropriate plan of care specifying the types of services he will receive under the waiver program. Ibid.
Ohio regulations permit only prospective coverage of these services. They thus provide that coverage may not begin until the individual meets the criteria for receiving Medicaid services under the state Medicaid plan, and until the individual meets the requirements for receiving services under the waiver program—including the requirement that the individual be admitted into the waiver program and have an approved plan of care in place. Id. at 6-7.
2. Plaintiffs are a class of Medicaid beneficiaries who live in residential care facilities and who have applied for participation in the Ohio assisted care waiver program. They allege that Ohio regulations limiting coverage to services rendered after a care of plan is approved violate Medicaid provisions assertedly requiring the State to cover assisted living services provided up to three months prior to an application for benefits if the individual was eligible for Medicaid during that time. They principally rely on 42 U.S.C. 1396a(a)(34), which provides that a state Medicaid plan must:
9

provide that in the case of any individual who has been determined to be eligible for medical assistance under the plan, such assistance will be made available to him for care and services included under the plan and furnished in or after the third month before the month in which he made application (or application was made on his behalf in the case of a deceased individual) for such assistance if such individual was (or upon application would have been) eligible for such assistance at the time such care and services were furnished.
Plaintiffs argue that this statutory provision requires retroactive coverage
of waiver services, and that Ohio’s waiver regulations render them unable to
pay all the facility’s charges and vulnerable to discharge for non-payment of a
debt.
3. The district court granted summary judgment for the plaintiffs and
ordered Ohio to cover waiver services for up to three months prior to a waiver
application if the individual was eligible for Medicaid services during that
period, and if the pre-application services are consistent with the subsequently approved plan of care.1
First, the court construed section 1396n(c)(1)’s requirement that waiver
services be provided “pursuant to” an appropriate plan of care as meaning only
that the services in question be consistent with the plan rather than under the
1 The parties consented to have a magistrate judge issue a final judgment rather than a recommended decision subject to further review in the district court. See District Court Clerk’s Notation of Record (“CR.”) No. 11.
10

authority of an existing plan. District Court Order, CR. 121, Page ID # 204344.
Second, the court declined to defer to an HHS interpretation construing the statute to limit coverage to waiver services rendered after a plan of care is in place. HHS’s Centers for Medicare & Medicaid Services has issued guidance for state waiver applications stating that waiver services must generally be furnished pursuant to a plan of care, and that an individual is not eligible for waiver services until a plan of care is in place. Id., Page ID # 2051. The court, however, concluded that the agency’s interpretation is not entitled to deference because it is assertedly inconsistent with section 1396a(a)(34)’s unambiguous directive to provide retroactive coverage, inconsistent with Congress’s intent to provide liberal coverage for waiver services needed to avoid institutionalization, and unsupported by a fully-developed, reasoned explanation for the agency’s position. Id., Page ID # 2052-55.
Third, the court reasoned that although services in a nursing facility must also be provided in accordance with a plan of care, Medicaid typically covers nursing facility services before a written plan of care is in place. Id., Page ID # 2044, 2049, citing 42 U.S.C. 1396r(b)(2) and 42 C.F.R. 483.20(k)(2)(i). It found no basis for treating home and community-based waiver services differently. Ibid.
11

Finally, the court concluded that denying retroactive services would
frustrate Congress’s goal of avoiding institutionalization and lowering Medicaid
expenditures for individuals who would otherwise require nursing home care
but who could, with adequate support services, live safely in the community.
Id., Page ID # 2056.
ARGUMENT
I. Home And Community-Based Services May Not Be Covered Before A Beneficiary Is Admitted To the Waiver Program And A Plan of Care Is In Place.
The home and community-based waiver provision states that:
The Secretary may by waiver provide that a State plan approved under this subchapter may include as “medical assistance” under such plan payment for part or all of the cost of home or community-based services (other than room and board) approved by the Secretary which are provided pursuant to a written plan of care to individuals with respect to whom there has been a determination that but for the provision of such services the individuals would require the level of care provided in a hospital or a nursing facility or intermediate care facility for the mentally retarded the cost of which could be reimbursed under the State plan.
42 U.S.C. 1396n(c)(1) (emphasis added).
The Secretary, acting through CMS, interprets these provisions as
requiring that a beneficiary be admitted to the waiver program and have a plan
of care in place before waiver services may be covered. That interpretation is
consistent with the plain meaning of the statute and furthers core objectives of
12

the waiver program. The agency’s interpretation is accordingly entitled to substantial deference on judicial review.
As an initial matter, the Medicaid statute states that home and community-based services must be rendered “pursuant to” a plan of care. In a legal context, the phrase “pursuant to” ordinarily means under the authority of or as provided by the document in question. See Black’s Law Dictionary 1431 (Garner ed. 10th ed. 2014) (defining “pursuant to” to mean “in compliance with,” “under,” or “as authorized by”).
That interpretation advances Congress’s clear intent to ensure that there is a determination, in advance, that the individual needs services at a level of care typically provided in a hospital, skilled nursing facility, or intermediate care facility, that the individual can nonetheless be cared for safely in a home or community setting with adequate alternative services, and that services are provided in a manner that maximizes individual patient choice. See H. Conf. Rep. No. 97-208, 97th Cong., 1st Sess. 966 (1981), reprinted in 1981 U.S.C.C.A.N. 1010, 1328. Congress stressed that “[t]he determination of which long-term care options are feasible in a particular instance should be based on the individual’s needs, as determined by an evaluation” and that “the integrity of patient choice should be preserved.” Ibid. The waiver program is thus intended to ensure that services are provided only after careful evaluation of
13

the beneficiary’s clinical and functional needs, and that they are structured in a manner that facilitates individual patient choice in decision-making.
The Secretary’s interpretation is entitled to substantial deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45 (1984). Chevron holds that the reviewing court must defer to any permissible interpretation of an ambiguous statute where it appears that Congress has expressly or impliedly delegated to the agency authority to make rules or other determinations carrying the force and effect of law. Gonzales v. Oregon. 546 U.S. 243, 255-56 (2006); United States v. Mead Corp., 533 U.S. 218, 299 (2001); Varsity Brands, Inc. v. Star Athletica, LLC, 799 F.3d 468, 477-78 (6th Cir. 2015). Here, the pertinent statute requires that waiver proposals be submitted to the Secretary for review and approval, and that waiver services may be treated as reimbursable “medical assistance” under the state Medicaid plan only to the extent the waiver is approved by the Secretary. 42 U.S.C. 1396n(c)(1).
In Douglas v. Independent Living Center of Southern California, Inc., 132 S. Ct. 1204 (2014), the Court stressed that the Secretary’s determinations regarding the scope of medical assistance provided under a state Medicaid plan are entitled to substantial deference. Addressing the Secretary’s authority to approve a state plan amendment proposing reductions in provider reimbursement rates, the Court explained:
14

The Medicaid Act commits to the federal agency the power to administer a federal program. And here the agency has acted under this grant of authority. That decision carries weight. After all, the agency is comparatively expert in the statute's subject matter. And the language of the particular provision at issue here is broad and general, suggesting that the agency's expertise is relevant in determining its application.
Id. at 1310.
This Court and other courts of appeals have accordingly recognized that
where, as here, Congress grants the Secretary, acting through CMS, authority
to review and approve state provisions governing the scope medical assistance,
the Secretary’s determinations are an exercise of delegated legislative power
entitled to deference under Chevron unless contrary to an unambiguous
statutory requirement.
In Pharm. Research & Mfrs. Am. v. Thompson, 362 F.3d 817 (D.C. Cir.
2004), for example, the D.C. Circuit held:
In the case of the Medicaid payment statute, the Congress expressly conferred on the Secretary authority to review and approve state Medicaid plans as a condition to disbursing federal Medicaid payments. . . . In carrying out this duty, the Secretary is charged with ensuring that each state plan complies with a vast network of specific statutory requirements, see generally 42 U.S.C. 1396a[.] Through this ‘express delegation of specific interpretive authority,’ Mead, 533 U.S. at 229, 121 S. Ct. at 2172, the Congress manifested its intent that the Secretary’s determinations, based on interpretation of the relevant statutory provisions, should have the force of law. The Secretary’s interpretations of the Medicaid Act are therefore entitled to Chevron deference.
Id. at 822.
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The Ninth Circuit has similarly held that the Secretary’s decisions on whether to approve or disapprove a state plan amendment are entitled to deference. The court reasoned it must “abide by an agency’s interpretation or implementation of a statute it administers if Congress has not directly spoken ‘to the precise question at issue’ and if the agency’s answer is ‘permissible’ under the statute.” Managed Pharmacy Care v. Sebelius, 716 F.3d 1235, 1246 (9th Cir. 2013), quoting Chevron, 467 U.S. at 842-43. It held that it must defer to the Secretary’s approval of a state Medicaid plan amendment.
This Court, consistent with other appellate precedent, has held that the Secretary’s construction of ambiguous terms in the course of making determinations regarding the scope of medical assistance under a State Medicaid plan is entitled to Chevron deference. See Harris v. Olzewski, 442 F.3d 456, 468-69 (6th Cir. 2006) (CMS determinations regarding whether to grant exemption from Medicaid freedom of choice provisions entitled to Chevron deference); Rosen v. Goetz, 410 F.3d 919, 927 (6th Cir. 2005) (substantial deference must be accorded to CMS’s approval of a State’s proposed process for disenrolling from Medicaid).
Here, CMS has issued to States instructions and policy guidance making clear that waiver services may not be covered until the individual: (1) meets Medicaid’s basic eligibility requirements, (2) is determined to require the level of care provided by a hospital, skilled nursing facility, or intermediate care
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facility, (3) meets the requirements for obtaining home and community-based
services under the waiver program and is actually admitted to the waiver
program, and (4) has a written plan of care conforming to the policies and
procedures established in the approved waiver program.2 Hobbs Affidavit, CR.
No. 113-1, Page ID # 1829-30.
Moreover, CMS applied this guidance in the course of a making a
specific administrative determination as to whether and how Ohio could
implement a home and community-based waiver program. CMS thus approved
the waiver based on assurances provided the State. CMS Waiver Approval,
CR. 89-2, Page ID # 732. These assurances included Ohio’s representation
that Federal Financial Participation “is not claimed for waiver services
furnished prior to the development of the service plan or for services not
included in the service plan.” Ohio Waiver Application, CR, 89-3, Page ID
2 CMS’s instructions set forth an exception permitting retroactive coverage, before establishment of a plan of care, of case management services used to formulate the plan of care for individuals transitioning from a nursing home or similar institution to the community. See Hobbs Affidavit, CR. 113-1, Page ID # 1832-33. This exception furthers Congress’s intent to require an adequate plan of care by enabling States to engage in the initial evaluation and outreach necessary to formulate the plan of care in the first instance. Id. Page ID # 1830. It is a common sense rule recognizing that special procedures are needed to accommodate the initial planning that must precede development of the beneficiary’s plan of care when he or she is leaving a highly-structured institutional setting and transitioning to home or community-based care. The exception has no application to the waiver services at issue here, which are limited to individuals who are already living in a community residential living facility and wish to remain there.
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#740. They also included the State’s “agreement to provide HCBS [home and community-based services] to no more individuals than those indicated as unduplicated recipients” in its estimates of per capita expenditures. Ibid. The terms of the Secretary’s approval, consistent with prior statement of policy, thus made clear that coverage would be limited to beneficiaries who are enrolled in the waiver program and have a plan of care in place. Under Chevron, the Court must defer to this consistent and reasonable interpretation of the statute.
The district court’s reasons for rejecting the Secretary’s interpretation are unpersuasive. First, the court’s construction of the statute is not consistent with the most natural interpretation of the statutory text. In particular, the court concluded that the plain language of the statute unambiguously includes home or community-based waiver services that are “consistent with” a plan of care developed after the fact. But the statute does not say services must merely be “consistent with” a plan of care developed after the fact. It instead states that the services must be “pursuant to” a plan of care—a phrase that in a legal context usually means under the authority of the document in question. See p. 12-13, supra. The district court’s construction is, at best, one plausible reading of the term. But it is neither the only construction nor the most natural reading of the plain language in this context.
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Second, the court erred in failing to accord substantial deference to CMS’s reasoned construction of the statute. The court principally reasoned that the statute unambiguously requires retroactive coverage before a plan of care is in place and thus leaves no room for administrative interpretation. But CMS’s interpretation is, at a minimum, at least one permissible interpretation of the statutory requirement that services be provided “pursuant to” the plan of care. And as explained above, it is far better suited to vindicating Congress’s intent to ensure that waiver services be based on an adequate assessment of need, an advance determination that the individual can be safely cared for in a home or community setting, and patient choice.
The court further reasoned that CMS’s interpretation is not entitled to deference because it does not squarely address retroactive coverage and does not set forth a detailed explanation of the agency’s reasoning. District Court Order, CR. 121, Page ID # 2052-53. CMS’s guidance, however, is expressly addressed to the earliest date coverage may be provided and expressly states that a plan of care must be in place before Medicaid may reimburse waiver services. Hobbs Affidavit, CR. 113-1, Page ID # 1829-30. Moreover, the agency’s specific waiver approval is expressly limited to the terms proposed by Ohio, which plainly limit coverage to individuals who are enrolled in the waiver program and have a plan of care in place. The district court therefore erred in
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failing to accord Chevron deference to CMS’s eminently reasonable interpretation of the statute.
Third, the district court erred in concluding that denial of retroactive coverage before a plan of care is in place would frustrate Congress’s intent to make home and community-based waiver services readily available. Congress intended to ensure, not only that services be available, but that they be tailored to an individualized assessment of need, offer a safe alternative to institutionalization, and reflect individual patient choice. Merely requiring that services be “consistent with” a later developed plan of care is inconsistent with all these objectives. Indeed, it creates an incentive to draft the plan of care to conform to the services rendered rather than to ensure that services conform to a plan of care thought out in advance.
Fourth, the district court overstated the extent to which the plan of care requirement imposes an impediment to timely waiver services. CMS facilitates timely provision of waiver services by permitting them to be delivered pursuant to a provisional plan of care for the first 60 days of eligibility while a more comprehensive plan of care is being developed and implemented. See Hobbs Affidavit, CR. 113-1, Page ID # 1829. Ohio indicates that in calendar year 2014, an appropriate needs assessment and initial plan of care were developed in an average of 8.4 days from the date of an individual’s application to
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participate in the waiver program—hardly an insurmountable barrier to access. See Hobbs Affidavit, CR. 89-4, Page ID # 864, ¶ 8.
Moreover, Ohio represents that an individual may apply for a needs assessment and plan of care before he or she meets Medicaid’s financial and other eligibility criteria. Appellants Br. at 42-43. That option is particularly significant for members of the plaintiff class who, by definition, are already in an assisted living facility when they apply for services. Many class members have previously paid the facility’s fees with private funds and seek Medicaid coverage, not because they now need a different level of care, but because they have exhausted their income and resources and have no means of continuing to pay the facility’s charges without Medicaid assistance under the waiver program. See, e.g., Appellees Br. at 3-4. Ohio’s offer to develop a plan of care before the individual “spends down” his income and resources to Medicaid eligibility levels offers a further means of ensuring that waiver services meeting all the statutory and regulatory requirements can be delivered promptly. As the State notes, with a modicum of advance planning, these individuals can have a plan of care in place by the time they meet Medicaid’s financial eligibility requirements. Reply Br. at 5-6.
Finally, although the district court correctly observed that services provided in a nursing facility may be covered prior to the development of a plan of care, there is a reasonable basis for treating them differently. The
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Medicaid statute provides that services in a nursing facility must be provided “in accordance with” a plan of care. 42 U.S.C. 1396r(b)(2). Implementing regulations further require that a plan of care be developed within 21 days of the patient’s admission. See 42 C.F.R. 483.20(b)(2) (comprehensive assessment of need must be completed within 14 days of admission) and 42 C.F.R. 483.20(k)(2) (comprehensive plan of care must be developed within seven days of comprehensive patient assessment). The district court is correct that nursing home services may be covered before the nursing home comprehensive plan of care is completed. But a patient will often enter a nursing home in exigent circumstances, such as after a hospital discharge, thus making advance development of a comprehensive plan of care impractical. Accordingly, and unlike services under a waiver program, a preexisting plan of care is not a condition of Medicaid coverage of nursing facility services. Moreover, there must be a physician order for the patient’s immediate care in the facility before he or she may be admitted. 42 C.F.R. 483.20(a). There is thus an initial determination, made before services are rendered, that admission to the nursing home is medically appropriate in light of the patient’s clinical and functional needs. That is not the case with respect to waiver services rendered outside an institutional setting, before the development of a plan of care and attendant determination of need.
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II. The District Court’s Holding Contravenes Statutory Limitations On Retroactive Coverage of Waiver Services, The Terms Of Secretary’s Approval Of Ohio’s Optional Waiver Program, And The State’s Assurances That Addition Of Waiver Services Will Not Increase Medicaid Costs. There is no dispute that Ohio intended its waiver program to include
only prospective coverage for services rendered after a beneficiary is admitted into the waiver program and after a plan of care is in place. Ohio waiver regulations provide that “the medicaid funded component of the assisted living program shall not pay for any service provided to an individual before ODA’s [Ohio Department of Aging’s] designee enrolls the individual into the program and before the case manager authorizes the service in the consumer’s service plan.” Ohio Administrative Code 173-38-03(c)(1)(B), reprinted at CR. 89-1, Page ID # 730. The State’s waiver application to the Secretary, consistent with CMS requirements, accordingly made clear that “all waiver services are furnished pursuant to the service plan,” and that “Federal financial participation (FFP) is not claimed for waiver services furnished prior to the development of the service plan or for services that are not included in the service plan.” CR. 89-3, Page ID # 740. Ohio thus made plain that its waiver program would not afford retroactive coverage before these requirements are met. The Secretary approved the waiver on that basis.
The district court, in nonetheless ordering retroactive coverage, imposed a requirement that violates the terms of the waiver program proposed by Ohio
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and approved by Secretary. Plaintiffs may argue that once a State opts to
provide home and community-based services through a waiver program, it
must comply with all statutory requirements, including the retroactivity
provisions of 42 U.S.C. 1396a(a)(34). There is a three-fold problem with that
argument, however.
First, the statute does not permit retroactive coverage of home and
community-services rendered before an individual is admitted into the waiver
program. To qualify for benefits in the three-month period prior to an
application for benefits, the individual must show that he “was (or upon
application would have been) eligible for such assistance at the time such care
and services were furnished.” 42 U.S.C. 1396a(a)(34). An individual, however,
cannot be eligible for services under the waiver program until one of the
limited number of waiver slots becomes available and he or she is enrolled into
the waiver program.3 Services rendered before that time are not services
authorized by the waiver program. And if they are not provided under the
3 Ohio projected that it could serve a maximum of 4,867 participants in the waiver program. Ohio Waiver Application. CR. 89-3, Page ID # 855. It anticipated that the number of available waiver slots might not be sufficient to meet demand, that individuals seeking to participate in the waiver program might have to be placed on a waiting list, and that Medicaid assistance will not commence until a slot become available and the individual is enrolled in the waiver program. Id., Page ID #730. It is our understanding that none of the named plaintiffs needed to be placed on a waiting list before enrolling in Ohio’s waiver program. CMS advises, however, that in 2014, more than 582,000 people were on waiting lists for enrollment in waiver programs operating in 38 states, including Washington, D.C.
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authority of a waiver, they are not “medical assistance” covered by the state Medicaid plan. In that circumstance, the individual does not meet the central requirement of the 42 U.S.C. 1396a(a)(34) retroactivity provision: that he was or would have been eligible for Medicaid coverage at the time the services were rendered.
Contrary to plaintiffs’ contentions, this interpretation does not eviscerate the retroactivity provisions of 42 U.S.C. 1396a(a)(34) or somehow render them inoperative with respect to other Medicaid services. For example, an individual who receives in-patient hospital services three months’ prior to applying for Medicaid can readily show whether he or she met Medicaid’s financial and qualitative eligibility requirements during that time. And as in-patient hospital services are a mandatory service that cannot be limited to a set number of beneficiaries or a specific geographic area, services rendered an individual who is otherwise eligible for Medicaid will be covered during the retroactive period if medically necessary.
Unlike in-patient hospital services, and indeed unlike most other Medicaid services, there are several additional conditions on eligibility for services under a home and community-based waiver program.4 One of the
4 The cases on which plaintiffs rely (see Appellee Br. at 30-31) are distinguishable for precisely this reason. Schott v. Olszewski, 401 F.3d 682 (6th Cir. 2005), involved coverage of medical services incident to an emergency hospitalization. See id. at 684. And Carroll v. DeBuono, 998 F. Supp. 190 (1997)
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limited number of waiver slots must be available. The individual must both qualify for enrollment in the waiver program and be entitled to preference ahead of other individual’s on the State’s waiting list. And, as explained above, a suitable plan of care must be in place. Limiting coverage to periods in which these requirements are met does not vitiate Medicaid’s retroactive coverage provisions. It is, instead, a straightforward application of section 1396a(a)(34)’s express requirement that the individual “was (or upon application would have been) eligible for such assistance at the time such care and services were furnished.”
Second, even assuming, for purposes of argument, that retroactive coverage for services predating enrollment in the waiver is statutorily required for those States that elect to participate in a waiver program, that would not authorize the district court to simply direct such additional coverage, without regard to the limitations in the waiver program proposed by Ohio and approved by the Secretary. As noted above, home and community-based services are not a mandatory part of a state Medicaid program. They are optional with the States. See 42 U.S.C. 1396a(a)(10)(A) (listing services that must be provided as part of the State Medicaid plan); see also 42 U.S.C.
(N.D. N.Y. 1998) involved whether retroactive coverage extended to services rendered by a provider not enrolled in the Medicaid program. Neither case involved waiver services or services where the beneficiary failed to meet all the conditions on eligibility for the service during the pre-application period.
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1396n(c)(i) (providing that States may provide home and community-based services as an optional part of the state Medicaid plan).
A reviewing court has the authority to invalidate a program that does not meet a putative retroactive coverage requirement for optional waiver services. But it would then be up to the State to decide whether it wishes to provide an enlarged home and community-based waiver program affording retroactive coverage, and up to the Secretary to decide whether to approve the modified waiver program. The State, for example, might elect to reduce the number of waiver slots to accommodate the added expense of retroactive coverage. Or it might elect to abandon a waiver program with such requirements entirely—a course of action that, because waiver services are optional, is entirely within the State’s discretion. In any event, the court’s remedial power stops with its authority to determine whether the Ohio waiver program now in effect meets statutory requirements. It cannot compel Ohio to enlarge the optional waiver program beyond that proposed by the State and approved by the Secretary. Cf. FPC v. Idaho Power Co., 344 U.S. 17, 20 (1952) (court’s reviewing power ends when agency’s error is laid bare).
Finally, the district court’s order, by enlarging the waiver to include retroactive coverage, undermines the State’s assurances that the waiver program will not increase Medicaid costs. The statute requires a State, as a condition of waiver approval, to provide reasonable assurances that the addition of waiver
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services will not increase the average annual per capita cost of serving individuals who need care at a level provided by a hospital, skilled nursing facility, or intermediate care facility. See 42 U.S.C. 1396n(c)(2)(D). Here, Ohio represented to the Secretary that coverage under the waiver would not commence until a waiver slot is available, the individual is enrolled in the program, and a plan of care is in place. CR. 89-3, Ohio Waiver Application, Page ID # 730. It further represented that this waiver program would not increase the total cost or average per capita cost of serving individuals who need a level of care provided by nursing homes or intermediate care facilities. Id., Page ID # 740, 855-59.
The district court’s retroactive coverage order requires Ohio to pay for up to three months of additional waiver services for each of the several thousand beneficiaries in the program—a substantial increase in costs, and one not reflected in the cost assurances the State previously provided CMS in seeking approval of its prospective-only waiver program. Plaintiffs might respond that absent retroactive coverage, individuals would enter nursing facilities sooner, that such care is invariably more expensive than care under a waiver program, and that the addition of retroactive coverage therefore has no effect on the cost assurances underlying the Secretary’s approval of the waiver program. But if Congress believed that waiver services would never increase costs, it would not have required the States to show, as a condition of obtaining
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waiver approval, that the addition of home and community-based services will not increase per capita costs for individuals who need a nursing facility level of care. Not every individual denied waiver services will enter institutional care, especially if they already reside in assisted living facility. And the statute, on its face, makes clear that Congress was not prepared to presume that the addition of a home and community-based waiver program will be cost free.
The district court nonetheless ordered Ohio to provide retroactive coverage of waiver services carrying costs well beyond those reviewed and approved by the Secretary. That is inconsistent with statutory provisions making Medicaid coverage of waiver services contingent on assurances that the waiver will not increase per capita costs the Secretary’s approval.
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CONCLUSION The district court’s judgment should be reversed.
Respectfully submitted, BENJAMIN C. MIZER Principal Deputy Assistant Attorney General CARTER M. STEWART United States Attorney ALISA B. KLEIN (202) 514-1497 /s/ JEFFREY CLAIR
(202) 514-4028 jeffrey.clair@usdoj.gov Attorneys, Civil Division Room 7243, Department of Justice 950 Pennsylvania Ave., N.W. Wa shington, D.C. 20530
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FRAP 32(a)(7) CERTIFICATE OF COMPLIANCE I certify that this brief has been prepared in Microsoft Word using a 14point, proportionally spaced font, and that based on word processing software, the brief contains 6,677 words.
/s/ Jeffrey Clair jeffrey.clair@usdoj.gov (202) 514-4028 CERTIFICATE OF SERVICE I certify that on March 22, 2016, I electronically filed the foregoing Brief for the Federal Respondents using the Court’s CM/ECF system, which constitutes service under the Court’s rules. /s/ Jeffrey Clair jeffrey.clair@usdoj.gov (202) 514-4028
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