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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO

COMMUNICARE, LLC, d/b/a SUBURBAN :

PAVILION NURSING AND : Honorable Judge: 

REHABILITATION CENTER, as :

Authorized Representative of ANNIE ELLIS, :

4700 Ashwood Drive :

Cincinnati, Ohio 45241 :

:

Plaintiff, :

: Case No. 

v. :

:

CYNTHIA C. DUNGEY, : 

In her official capacity as the Director of : 

the Ohio Department of Job and Family Services, : 

30 East Broad Street, 32nd Floor, : 

Columbus, Ohio 43215, : 

: 

And, : 

: 

BARBARA SEARS :

In her official capacity as the : 

Director of the Ohio Department of Medicaid : 

50 West Town Street, Suite 400 :

Columbus, Ohio 43215, :

:

Defendants :

:

______________________________________________________________________________

COMPLAINT AND PETITION FOR DECLARATORY JUDGMENT

I. PRELIMINARY STATEMENT

As a condition of receiving federal funds, the State of Ohio is required to operate the 

Medicaid program in compliance with the Social Security Act and implementing regulations, 

pursuant to 42 U.S.C. § 1396(c). This case concerns the failure of Defendant Cynthia C. Dungey 

(“Dungey”), the Director of the Ohio Department of Job and Family Services (“ODJFS” or 

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“Defendant”), and Barbara Sears (“Sears” or “Defendant”), the Director of the Ohio Department 

of Medicaid (“ODM” or “Defendant”), to ensure that Defendants comply with their obligation to 

afford Medicaid benefits to a resident in a long-term care facility in accordance with the 

Constitution and the laws of the United States. Defendants are directly responsible for policies 

necessary for the implementation of a system for determination of eligibility for Medicaid that 

complies, in all aspects, with federal law. 

Defendants’ failure to comply with both Ohio and federal law to determine Medicaid 

benefits to Annie Ellis, a Resident of Petitioner’s skilled nursing facility, is a violation of the 

Federal Medicaid Act at 42 U.S.C. § 1396a (a)(17)(b) (1988); 20 C.F.R. § 416.1201(a)(1); the Due

Process Clause of the Fourteenth Amendment to the United States Constitution; the Americans

with Disabilities Act (“ADA”), 42 U.S.C. § 12131 et seq., and the Rehabilitation Act of 1973, 

29 U.S.C. § 794a, et seq. 

II. PARTIES

1. Plaintiff Annie Ellis (“Ellis” or “Plaintiff”) received 24-hour long-term 

nursing facility services provided by Communicare LLC, d/b/a Suburban Pavilion Nursing 

and Rehabilitation Center (“Suburban Pavilion”). Suburban Pavilion has been appointed 

as Ms. Ellis’ Authorized Representative. 

2. Communicare, LLC, d/b/a Suburban Pavilion Nursing and Rehabilitation 

Center is a corporation which owns and operates skilled nursing facilities throughout Ohio, 

with corporate headquarters located at 4700 Ashwood Drive, Cincinnati, OH 45241.

3. Defendant Cynthia C. Dungey is the Director of the Ohio Department of Job and 

Family Services (“ODJFS or Defendant”), which is the department of the State of Ohio that,

under Ohio law and applicable federal regulations, was the single state agency charged with

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responsibility for administering and supervising Ohio’s Medicaid program before 2011. At all

times material to this Complaint, Defendant Dungey acted under color of state law in

administering the regulations, customs, policies, and practices material herein. She is sued in her

official capacity only.

4. Defendant Barbara Sears is the Director of the Ohio Department of Medicaid 

(“ODM or Defendant”), which is the department of the State of Ohio that, since 2011, under Ohio 

law and applicable federal regulations, is the single state agency charged with responsibility for 

administering and supervising Ohio’s Medicaid program. At all times material to this Complaint, 

Defendant Sears acted under color of state law in administering the regulations, customs, policies,

and practices material herein. She is sued in her official capacity only.

III. JURISDICTION AND VENUE

5. This action arises under the Title XIX of the Social Security Act, 42 U.S.C. §

1396a et seq. (“the Medicaid Act”), the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 

12131 et seq., 28 C.F.R. § 35.130, 42 C.F.R. 435.725(e)(1), the Rehabilitation Act of 1973, 29 

U.S.C. § 701 et. seq., and the Supremacy Clause, U.S. Const., Art. VI, cl. 2.

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

7. Declaratory relief is sought pursuant to 28 U.S.C. §§ 2201 and 2202. 

8. Venue lies in this forum pursuant to 28 U.S.C. § 1391(b) and Local Rule 82.1. 

9. Medicaid provides health care benefits to qualifying low-income individuals—

including, in this case, the elderly and disabled. 42 U.S.C. § 1396, et seq. 

10. Medicaid is a joint federal and state program whereby participating states receive 

federal financial assistance and, in return, must follow the requirements of 42 U.S.C. § 1396a(a), 

the Medicaid Act and its rules and regulations. 

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IV. STATEMENT OF FACTS

11. Suburban Pavilion is a skilled nursing facility in the State of Ohio and, as part 

of its mission, is dedicated to providing compassionate, long-term care for its residents. 

12. Ms. Ellis was an elderly woman who suffered from numerous and severe 

medical conditions that required her twenty-four (24) hour care and assistance. 

13. At all times relevant hereto, Ms. Ellis suffered from dementia, among other 

severe medical conditions and required long-term care nursing facility services. 

14. Ms. Ellis suffered from mental illness—including dementia--that substantially 

impaired her ability to think, communicate, care for herself, or make financial or personal 

decisions. She further suffered from physical impairments which substantially impaired her 

mobility.

15. At all times relevant hereto, Ms. Ellis was a “qualified individual[] with a 

disability,” as defined under the ADA, 42 U.S.C. § 12132 et. seq., the Rehabilitation Act of 1973, 

29 U.S.C. § 705 et. seq., and 28 C.F.R. § 35.130 et. seq.

16. On or about October 5, 2013, Ms. Ellis was admitted to Suburban Pavilion for longterm nursing facility services. 

17. Subsequent to her admission to Suburban Pavilion, Ms. Ellis became insolvent and 

in need of Medical assistance (hereinafter referred to as “Medicaid benefits”) to pay for her room, 

board, care and assistance.

18. On or about April 9, 2014, Suburban Pavillion submitted an application for 

long-term care Medicaid benefits to Defendants on Ms. Ellis’ behalf Due to Ms. Ellis’ severe 

mental impairments she was unable to access her resources or take the actions necessary to 

qualify for Medicaid benefits. 

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19. On or about February 4, 2015, Ms. Ellis’ application for Medication benefits 

was denied by Defendants based on alleged “excess resources”. 

20. On or about April 9, 2015, Cuyahoga Probate Court appointed a Guardian of 

Estate for Ms. Ellis based on her inability to manage her own affairs and mental 

incompetence. 

21. On or about May 9, 2015, Ms. Ellis’ Authorized Representative appealed the 

denial of Medicaid benefits issued by Defendant on or about February 4, 2015. 

22. On June 23, 2015, Ms. Ellis passed away while at Suburban Pavilion. 

23. On or about June 26, 2015, Defendant Ohio Department of Job and Family 

Services’ Bureau of State Hearings (“ODJFS”), issued a State Hearing Decision ordering 

benefits to be afforded to Ms. Ellis with an effective date of benefits of April 9, 2014 (the 

date she applied for Medicaid benefits). 

24. On or about September 21, 2015, Defendant ODJFS issued a notice regarding 

Ms. Ellis’ benefits indicating that Ms. Ellis was approved for Medicaid benefits for the month 

of January 2014 and the months of January 2015 through May 2015. Defendant did not grant 

Medicaid benefits to Ms. Ellis, as it was required to, for the period of April 9, 2014 through 

December 31, 2014. Subsequent administrative appeals revealed that Medicaid benefits 

should have been approved for all of 2014.

25. On or about October 15, 2015, Suburban Pavilion submitted a Level of Care 

form indicating that Ms. Ellis had received long-term care nursing facility services in all of 

2014.

26. On or about October 22, 2015, Defendant ODJFS issued a 9401 notice that Ms. 

Ellis was approved for base Medicaid for billing, but not long-term care Medicaid. 

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27. On or about December 23, 2016, Ms. Ellis filed an appeal requesting Medicaid 

benefits be granted pursuant to the June 26, 2015 State Hearing Decision. 

28. Defendants allege that the benefits it was required to provide to Ms. Ellis pursuant 

to the June 26, 2015 State Hearing Decision were not afforded to Ms. Ellis as Suburban Pavilion 

failed to submit a level of care and request payment. 

29. Suburban Pavilion submitted a level of care in 2015 which was rejected by 

Defendants.

30. Ohio regulations require Suburban Pavilion to submit claims within twelve 

(12) months of the date of service unless a State Hearing Decision or Agency action prevents 

the facility from doing so. If an Agency action prevents a facility from submitting a claim 

within twelve (12) months, the Agency must issue a “Delay in Payment” letter. 

31. On or about September 19, 2017, Suburban Pavilion requested that Defendants 

issue a revised form 9401 and a delay in payment letter so that Suburban Pavilion could bill for 

the approved Medicaid benefits for Ms. Ellis. 

32. On or about September 20, 2017, Defendant ODJFS issued a response rejecting 

Suburban Pavilion’s request and stated “there is no outstanding compliance due for any appeal 

number for this client”. 

33. To date, Defendants have not complied with the June 26, 2015 State Hearing 

Decision ordering benefits to be afforded to Ms. Ellis with an effective date of benefits of 

April 9, 2014. 

34. Defendants actions have prevented Suburban Pavilion from submitting a claim 

for Ms. Ellis’ care in 2014 within twelve (12) months. In order to submit a claim for Ms. 

Ellis’ care in 2014, Defendants are required to issue a “Delay in Payment” letter, which they 

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refuse to issue. 

35. Defendants determined that Ms. Ellis’ patient liability was approximately

$3,898.00 per month. This determination failed to deduct the cost of Ms. Ellis’ incurred expenses 

for medical care.

36. Ms. Ellis’ social security and/or pension payments were sent to, and/or controlled 

by, her nephew who used such for his own benefit. Ms. Ellis’ nephew failed to pay Ms. Ellis’ 

patient liability to Suburban Pavilion. 

37. Ms. Ellis never received her social security and/or pension payments and her social 

security and/or pension payments were not available to her because her son used them for his own 

benefit. 

38. Consequently, Ms. Ellis had no resources to make her patient liability payments to 

Suburban Pavilion. 

39. Ms. Ellis has unpaid patient liability payments owed to Suburban Pavilion for 

medical care provided to her. 

40. Ms. Ellis requested that Defendants allow outstanding medical expenses to be 

covered for medical care which Ms. Ellis was unable to furnish or provide for through a patient 

liability. Defendants have not responded to Ms. Ellis’ request. 

41. To date, Defendants have failed to adjust Ms. Ellis’ patient liability and have not 

provided all Medicaid benefits to Ms. Ellis, as she is entitled to. 

42. Ms. Ellis’ impairment triggers special due process rights that are designed to protect 

her from essentially falling victim to her own disability. 

43. It is undisputed that Ms. Ellis is “disabled” as defined by the Americans with 

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Disabilities Act (“ADA”) and the Rehabilitation Act. The Rehabilitation Act of 1973 prohibits the 

Defendant from denying “people with disabilities the opportunity to participate in or benefit from 

Medicaid[.]” 45 C.F.R. §84.4(1)(i), (ii), (iii) “Nondiscrimination on the Basis of Handicap in 

Programs and Activities Receiving Federal Financial Assistance” (emphasis added).

44. This means that the Defendant’s administration of the Medicaid program cannot be 

done in such a way as to “have the purpose or effect of defeating or substantially impairing 

accomplishment of the objectives of the recipient’s program with respect to handicapped persons.” 

45 C.F.R. § 84.4(b)(4).

45. Furthermore, Title II of the ADA requires the Defendant to “make reasonable 

modifications in policies, practices, or procedures when the modifications are necessary to avoid 

discrimination on the basis of disability, unless the public entity can demonstrate that making the 

modifications would fundamentally alter the nature of the program service or activity.” 28 C.F.R. 

§ 35.130(b)(3). This includes affording Ms. Ellis benefits which it has been ordered to provide by 

the Bureau of Hearing pursuant to an administrative decision, and in allowing outstanding medical 

expenses to be covered for patient liability which Ms. Ellis was unable to put towards her medical 

care.

46. In Doe 1-13 by and Through Doe Sr. 1-13 v. Chiles, 136 F.3d 709 (11th Cir. 1998) 

the court found that an action brought by disabled individuals will prevail when the action is 

brought against state officials, who failed to provide Medicaid services with reasonable 

promptness. Additionally, the Doe court found that failing to furnish Medicaid assistance with 

reasonable promptness to disabled individuals should not exceed 90 days. The action was brought 

pursuant to 42 U.S.C. § 1983 against officials, alleging unreasonable delays in providing certain 

services under the state Medicare program. Additionally, in Brown v. Luna, 735 F.Supp. 762 

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(M.D. Tenn., 1990) the Court held that “[a]ll applications pending more than 90 days without an 

eligibility decision [were to] be awarded interim Medicaid benefits unless [the Agency had] 

documented that the application has been delayed for good cause.” 

47. Plaintiff’s application was pending for nearly ten (10) months due to the Agency’s 

failure to assist her with providing the verifications needed to complete her Medicaid application. 

48. In 2008, Congress passed legislation requiring all states to implement electronic 

asset verification programs (“AVP”) to obtain information regarding the financial resources of 

Medicaid applicants, including those seeking Medicaid coverage for long-term care. 42 U.S.C. 

§1396w. This requirement has been codified in the federal Medicaid regulations. 42 C.F.R. §

435.945(j).

49. Federal law imposes on Medicaid agencies an affirmative duty to obtain 

information regarding a Medicaid applicant’s eligibility. This duty exists independent of the 

actions of the Medicaid applicant and is consequently not dependent on the extent of an 

applicant’s efforts to obtain eligibility information, or on an applicant’s request for assistance. 42 

CFR § 435.952. Furthermore, Medicaid agencies are not permitted to ask applicants to produce 

information unless that information is unavailable electronically. 42 C.F.R. § 435.952(c).

50. The Defendants did not seek to obtain any of the Plaintiffs’ information 

electronically via AVP. Nor did the Defendants try to obtain Plaintiffs’ information from 

secondary sources. Instead, the Defendants placed the burden of providing information entirely 

on the Plaintiffs. These actions violate federal law, which requires agencies to obtain and use 

items of information relating to Medicaid applicants and beneficiaries to “prevent ineligibility 

and incorrect payments.” 42 C.F.R. § 435.953(a). No steps are taken by the Defendants to 

prevent the ineligibility of the Plaintiffs. 

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51. As a direct result of the Defendant’s failure to timely process Ms. Ellis’ Medicaid 

application, Plaintiff Ms. Ellis has failed to receive Medicaid benefits to pay for the nursing 

facility services provided by Defendant, which she is entitled to pursuant to federal law.

52. The Defendant has failed/refused to pay within one year Medicaid claims made 

by Plaintiff Ms. Ellis, pursuant to 42 C.F.R. § 447.45(d) which states as follows:

Timely processing of claims.

(1) The Medicaid agency must require providers to submit all claims no later than 

12 months from the date of service

......

(4) The agency must pay all other claims within 12 months of the date of 

 receipt...[exceptions are excluded as are not applicable.]

42 § C.F.R. 447.45(d).

53. The Defendant has failed to provide a system which ensures that medical 

assistance will be available, including at least the care and services listed in paragraphs (1) 

through (5) of 42 U.S.C. § 1396d(a), to the Plaintiffs’ residents, who meet the financial eligibility 

standards, as required under 42 U.S.C. §1396a(a)(10). 

54. Due to the Defendants’ failure to comply with 42 C.F.R. § 447.45(d), Defendants

have failed to provide nursing facility services to Plaintiff Ms. Ellis’ for her timely and properly 

filed claims. Defendant cannot escape its responsibility to provide Medicaid benefits to Ms. 

Ellis by rejecting the request for level of care determination that was submitted to Defendant by 

Suburban Pavilion. Ms. Ellis has failed to receive the nursing facility services required to be 

provided to her by Defendants and to which Ms. Ellis is entitled pursuant to federal law.

55. As a condition of receiving federal funds, Defendant is required to administer the 

Medicaid program in the State of Ohio in compliance with the Federal Medicaid Act, 42 U.S.C. 

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1396a(r)(1)(A)(ii), and implementing regulations. 

56. In order to qualify for federal funds, a State must submit its Medicaid plan and any 

amendments to the federal agency that administers the program, the Centers for Medicare & 

Medicaid Services (“CMS”). 

57. Before approving a plan or amendments to a State Plan, CMS conducts a review to 

determine whether the plan complies with federal requirements. See e.g. Douglas v. Indep. Living 

Ctr. Of S. Cal., No. 09-958, slip op. at 1 (U.S. Feb. 22, 2012).

58. CMS promulgated a federal regulation requiring states to either deduct from 

eligibility calculations or reimburse incurred medical expenses to Medicaid recipients. See 42

C.F.R. § 435.725(c)(4). 

59. The Federal Medicaid Act codifies this requirement and provides that “with respect 

to the post-eligibility treatment of income for individuals who are institutionalized,” states take 

“into account amounts for incurred expenses for . . . necessary medical or remedial care recognized 

under State law but not covered under the State plan....” 42 U.S.C. § 1396a(r)(1)(A)(ii). 

60. CMS' regulations governing the spend down process define "incurred medical 

expenses" as any medically necessary, expenses for care and services provided to a recipient prior 

to his determination of Medicaid eligibility, which necessarily includes room and board costs 

incurred prior to eligibility. See e.g. Md. Dep't of Health & Mental Hygiene v. Ctrs. for Medicare 

& Medicaid Servs., 542 F.3d 424, 2008 U.S. App. LEXIS 20318 (4th Cir. 2008) (citing 242 C.F.R. 

§ 435.831).

61. Ohio regulations define “medical necessity” as “procedures, items, or services that 

prevent, diagnose, evaluate, or treat an adverse health condition such as an illness, injury, disease 

or its symptoms, emotional or behavioral dysfunction, intellectual deficit, cognitive impairment, 

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or developmental disability and without which the person can be expected to suffer prolonged, 

increased or new morbidity; impairment of function; dysfunction of a body organ or part; or 

significant pain and discomfort.” OAC 5160:1-01(B). 

62. From October 5, 2013 through June 26, 2015, Ms. Ellis incurred expenses for 

medically necessary care and services she received at Suburban Pavillion.

63. The costs and services incurred by Ms. Ellis for her medical care at Suburban 

Pavilion were, at all times, medically necessary to diagnose, evaluate, and treat her cognitive 

impairments and adverse health conditions. . 

64. CMS permits states to deduct incurred medical expenses from a resident’s income 

when calculating Medicaid eligibility. 42 C.F.R. § 435.831(g).

65. Ohio codified patient share liability and coverage of medically necessary expenses. 

Under OAC 5160:1-6-07(C), an institutionalized individual receiving Medicaid benefits must pay 

a patient liability amount to the facility. Patient liability is determined by the individual’s gross 

monthly earned and unearned income. O.A.C 5160:1-6-07(F)(1). However, the following types 

of health care costs are subtracted from the individual’s patient liability:

(a) Health insurance premiums (including medicaid and medicare premiums) and 

consinsurance deductibles and copayments, that are incurred by: 

(i) The institutionalized individual;

(ii) The institutionalized individual's spouse; or

(iii) The institutionalized individual's minor or disabled child.

(b) The cost of any of the institutionalized individual's incurred expenses for medical care, 

recognized under Ohio law, but not covered by medicaid and not subject to third-party 

payment. These unpaid past medical expenses, and any request to subtract such expenses from 

the patient liability, must meet the following criteria:

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(i) The service must have been medically necessary as determined by the 

administrative agency.

(ii) Expenses for medical care shall not have been incurred while serving a 

restricted medicaid coverage period (RMCP) per rule 5160:1-6-06.5 of the 

Administrative Code. Expenses that were incurred while serving an RMCP shall 

not count as unpaid past expenses and shall not be subtracted from the patient 

liability calculation.

O.A.C 5160:1-6-07(F)(6). 

66. CMS permits state plans to enforce “reasonable limits” on the amount of incurred 

medical expenses, however, the state plans must be approved by CMS before the limits may be 

imposed on Medicaid applicants. See 42 C.F.R. § 435.725(c)(4).

67. According to CMS: 

“Section 1902(r)(I)(A) requires States to take into account, under the posteligibility process, amounts for incurred medical and remedial care 

expenses that are not subject to payment by a third party. Section I 

902(r)(I)(A)(ii) permits States to place “reasonable" limits on the amounts 

of necessary medical and remedial care expenses recognized under State 

law but not covered under the State plan. However, those reasonable limits 

must ensure that nursing home residents are able to use their funds to 

purchase necessary medical or remedial care not paid for by the State 

Medicaid program or another third party.

CMS believes some limitations imposed on the age of an incurred expense 

could be considered reasonable. But the deduction of the expense cannot 

be further limited by requiring that the expense be incurred only during a 

period of eligibility for Medicaid. Our position is supported by the 

medically needy spenddown rules described in the Federal regulations. 

While the medically needy spenddown rules at 42 CFR 435.831 (g)(2) 

permit States to exclude expenses incurred earlier than three months 

before the month of application, 42 CPR 435.831(t)(4) requires that 

expenses incurred in the three months prior to the month of application 

must be considered under the spenddown process. 

Several States have submitted State Plan Amendments (SPAs) proposing 

to limit the deduction of incurred medical or remedial care expenses to 

expenses incurred no earlier than three months preceding the month of 

application. CMS considers such a limitation, which is based on the age of 

the incurred expense, to be reasonable. However, the States in question 

proposed an additional limitation under which the expenses would be 

deducted only if the individual was actually eligible for Medicaid when 

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the expense was incurred. CMS does not consider this to be reasonable. 

Any reasonable limits used by a State must be specified in the State's Title 

XIX State plan in Supplement 3 to Attachment 2.6-A, “Reasonable Limits 

on Amounts for Necessary Medical or Remedial Care Not Covered by 

Medicaid.” It is important to note that if a State does not specify its 

reasonable limits in the Supplement, it will be assumed that the State does 

not apply any limits to the deduction of medical or remedial expenses 

under the post-eligibility process.”

CMS Opinion Letter attached as Exhibit “A” (emphasis added). 

68. Consequently, Defendants’ denial of Ms. Ellis’ medical expense income deductions 

is a violation of Federal Medicaid Regulations as Defendants’ denial of her request for coverage .

69. Defendants have failed to obtain approval from CMS for any state plan amendment 

dealing with the treatment of income and/or patient liability for medically necessary medical 

expenses and have failed to permit, as required by Federal Medicaid regulations, the treatment of 

income and/or patient liability to allow coverage of medically necessary medical expenses. 

70. Consequently, Defendants effectively deprive patients of the right to receive 

reimbursement of medical expenses and pay deviations for medical costs or invoices, in violation 

of federal law.

71. Defendant is required by federal law to reimburse Plaintiff for the costs Ms. Ellis

and other similarly situated, disabled, long-term care residents, incurred for room, board and 

medical care received at Suburban Pavilion. See 42 U.S.C. § 1396(a)(r)(1)(A); 42 C.F.R. § 

435.725(c)(4). 

72. Federal regulations further require Defendants to deduct Ms. Ellis’ misappropriated 

social security income from its patient liability determination under 20 C.F.R. § 416.1201(a)(1).

73. The Medicaid Act requires state agencies to "[t]ake corrective action to ensure 

[the local agencies'] adherence [to the state plan provisions and the agency's procedures for 

determining eligibility]"). 42 C.F.R. § 435.903(b) (Emphasis added). “The agency must 

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promptly make corrective payments, retroactive to the date an incorrect action was 

taken[.]” 42 C.F.R. § 431.246. (Emphasis added).

74. According to 42 U.S. Code §1396a(a)(17)(B), Defendant shall only take into 

consideration income and resources that are available to the applicant or recipient.

75. Federal law mandates that a Medicaid applicant’s resources are not to cause a denial 

when resources are unavailable to the applicant; resources are not available when he or she does 

not have the power to liquidate the asset. 20 C.F.R. § 416.1201(a)(1) (emphasis added).

76. Where a state Medicaid law conflicts with a federal Medicaid statute or regulation, 

the state law is unenforceable. See Lankford v. Sherman, 451 F.3d 496, 510 (8th Cir. 2006).

77. A state may not create regulations that are contrary to federal law. See Gorlick v. 

Fla. Dep’t of Children and Families, 789 So.2d 1247 (2001). 

78. Defendant’s refusal to recognize and allow income deductions for medical 

expenses is preempted and precluded under Federal Law.

79. Defendant’s refusal to make income deviations due to the unavailability of Ms. 

Olson’s annuity payments is preempted and precluded under Federal Law.

80. Preemption arises where it would not be possible to comply with both federal and 

state laws at the same time, “or when the state law ‘stands as an obstacle to the accomplishment 

and execution of the full purposes and objective[s] of Congress.’” Pac. Capital Bank, N.A. v. 

Connecticut, 542 F.3d 341, 351 (2d Cir.2008) (quoting United States v. Locke, 529 U.S. 89, 109, 

120 S. Ct. 1135, 1148, 146 L.Ed.2d 69, 89 (2000)). See, e.g., Lewis v. Alexander, Case No. 2006-

3963 (E.D. Pa. August 23, 2011) (holding that while a state Medicaid law conflicts with a federal 

Medicaid statute or regulation, the state law is unenforceable).

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81. The Defendant’s medical manuals and general practice are neither law nor 

regulation, but conflicts with federal statutes in their ignorance of a federally mandated 

reimbursement procedure, and is therefore is preempted by those federal statutes.

In light of the Defendants’ failure to comply with federal and state Medicaid laws, Plaintiff Ms. 

Ellis havs not been provided room, board, care and nursing facility services by Defendants for the 

care she received at Suburban Pavilion.

82. Such actions and inactions by Defendants deprives Ms. Ellis of medical benefits to 

which she is entitled. 

83. The Defendants’ failure to afford Ms. Ellis public benefits and services, to which 

she is entitled under federal law, and failure to grant Ms. Ellis Medicaid benefits as a reasonable 

accommodation, constitutes actual or predictable discrimination in violation of the ADA, 42 

U.S.C. § 12132 et seq. and 28 C.F.R. § 35.130 et seq.

84. By failing to provide for nursing facility services rendered to Medicaid approved 

patients, the Defendants have failed to comply with federal law, as preempted by the Supremacy 

Clause of the United States Constitution, Article VI. The burden placed on the Defendants, should 

the Court grant the relief requested in this action, is that Defendants will be required to comply 

with federal Medicaid laws and pay for medical services already rendered to Plaintiffs. The 

Defendants stand to suffer diminutive, if any, burden by the timely rendering of payment of 

Plaintiffs’ Medicaid claims to the skilled nursing facilities in which they reside.

V. CAUSES OF ACTION

COUNT ONE—DECLARATORY JUDGEMENT

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85. Plaintiff incorporates all paragraphs set out above as if fully set forth herein.

86. At all times relevant hereto, Ms. Ellis lacked mental and physical capacity to 

act on her own behalf. 

87. The Defendants have failed to provide a system which ensures that medical 

assistance will be available, including at least the care and services listed in paragraphs (1) through 

(5) of 42 U.S.C. § 1396d(a), to all individuals meeting specified financial eligibility standards, as 

required under 42 U.S.C. § 1396a(a)(10). 

88. The Defendants’ failure to afford Plaintiff her public benefits and services, to which 

she was entitled under federal law, and failure to grant her Medicaid benefits as a reasonable 

accommodation, constitutes actual or predictable discrimination in violation of the ADA, 42 

U.S.C. § 12132 et seq., the Rehabilitation Act of 1973, 29 U.S.C. § 701 et. seq., and 28 C.F.R. § 

35.130 et seq.

88. By failing to comply with the federal rules and regulations regarding eligibility, 

issuing notices, taking into account the lack of physical or mental capacity, and allowing a hearing 

in instances in which a Medicaid applicant seeks to contest a decision and/or process, Defendants 

have deprived her of the rights, privileges and immunities secured by the Constitution and laws of 

the United States, in violation of 42 U.S.C. § 1983, and as preempted by the Supremacy Clause of 

the United States Constitution, Article VI. 

89. Because Defendants have failed to comply with federal Medicaid law, applicable 

authority authorizes the automatic approval of Plaintiff’s Medicaid benefits. See Smith v. Miller, 

665 F.2d 172, 176 (7th Cir. 1981). 

90. Plaintiffs request that this court issue a Declaratory Judgement stating that Ms. Ellis 

is to be afforded Medicaid benefits from April 9, 2014 until her death and is to be fully provided 

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all Medicaid benefits for all care Ms. Ellis received at Suburban Pavilion pursuant to nursing 

facility services and medical care. 

91. The burden placed on Defendants, should the Court grant the relief requested in 

this action, is simply that Defendants will be required to comply with federal Medicaid laws; the 

Defendants stand to suffer diminutive, if any, burden by affording the Plaintiff public benefits to 

which she is entitled pursuant to federal law.

92. Pursuant to 28 U.S.C. § 2201, and Rule 57 of the Federal Rules of Civil Procedure, 

Plaintiff seeks declaratory relief by this Court. 

93. It is well settled that the District Court’s exercise of discretion in a declaratory 

judgement action should be informed by a number of prudential facts, including: (1) consideration 

of practicality and efficient judicial administration; (2) the functions and limitations of the federal 

judicial power; (3) traditional principles of equity, comity, and federalism; (4) Eleventh 

Amendment and other constitutional concerns; and (5) the public interest. Smith & Usaha, note 

2, at 116 citing Wilton v. Seven Falls Company, 515 U.S. 288 (1995); Green v. Mansour, 474, U.S. 

64, 72-74 (1985); Rickover, 369 U.S. 111 at 112-113; Public Service Commission of Utah v. 

Wycoff Company, 344 U.S. 237, 243-47 (1952). Perhaps the most important factors are whether a 

declaratory judgement will serve a useful purpose and resolve the controversy between the parties. 

Smith & Usaha, supra note 2, at 116 (collecting cases; Wilton, 515 U.S. at 288; Green v. Mansour, 

474 U.S. 64, 74 (1985); Rickover, 369 U.S. 111 at 112-113; Wycoff, 344 U.S. at 244.

COUNT TWO - VIOLATION OF THE FEDERAL MEDICAID ACT’S

MEDICAL ASSISTANCE, AND NURSING FACILITY SERVICES 

MANDATE

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94. Plaintiff incorporates all paragraphs set out above as if fully set forth herein.

95. In violation of the medical assistance and nursing facility services provisions of 

the Medicaid Act, 42 U.S.C. §§ 1396a(a)(10)(A), 1396d(a)(4)(A), the Defendants, while acting 

under the color of law, has failed to provide Plaintiff with nursing facility services necessary for 

the health and welfare of the disabled Plaintiff.

96. The Defendants’ violations, which have been repeated and knowing, entitle 

Plaintiff to relief under 42 U.S.C. § 1983.

COUNT THREE - VIOLATION OF THE FEDERAL MEDICAID ACT’S

REASONABLE PROMPTNESS REQUIREMENT

97. Plaintiff incorporates all paragraphs set out above as if fully set forth herein.

 98. Plaintiff is a Medicaid-eligible individual who required nursing facility services 

and resided in Connecticut.

99. The Defendants are engaged in the repeated, ongoing failure to arrange and 

provide medical assistance and nursing facility services despite the fact that medical assistance 

and nursing facility services were medically necessary for Plaintiff. 

100. In violation of 42 U.S.C. § 1396a(a)(8) of the Federal Medicaid Act, the 

Defendants, while acting under the color of law, failed to provide services to Plaintiff with 

“...reasonable promptness...”. Furthermore, the Defendants are required to administer the 

Medicaid program in compliance with 42 C.F.R. §435.930 (requiring applicants be afforded 

Medicaid benefits without any delay). 

 101. The Defendants’ violations, which have been repeated and knowing, entitle

Plaintiff to relief under 42 U.S.C. § 1983.

COUNT FOUR – VIOLATION OF THE “AMERICANS WITH

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DISABILITIES ACT” (“ADA”), 42 U.S.C. §12132

102. Plaintiff incorporates all paragraphs set out above as if fully set forth herein.

103. The Defendants have failed to provide a system which ensures that medical 

assistance will be available, including at least the care and services listed in paragraphs (1) through 

(5) of 42 U.S.C. § 1396d(a), to all individuals meeting specified financial eligibility standards, as 

required under 42 U.S.C. § 1396a(a)(10).

104. Plaintiff was a “qualified individual with a disability,” as defined under the ADA, 

42 U.S.C. § 12132 et. seq. and 28 C.F.R. § 35.130 et. seq.

105. The Defendants’ failure to afford Plaintiff public benefits and services, to which 

she was entitled under federal law, and failure to grant her Medicaid benefits as a reasonable 

accommodation, constitutes actual or predictable discrimination in violation of the ADA, 42 

U.S.C. § 12132 et seq. and 28 C.F.R. § 35.130 et seq.

106. As a consequence of’ Defendants’ actions as described herein, Plaintiff suffered 

damages, including compensatory, mental anguish, and other damages.

COUNT FIVE – VIOLATION OF THE REHABILITATION

ACT OF 1973, 29 U.S.C. § 794

107. Plaintiff incorporates all paragraphs set out above as if fully set forth herein.

108. Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, prohibits public entities and 

recipients of federal funds from discriminating against any individual by reason of disability. 

Public and federally-funded entities must provide programs and activities “in the most integrated 

setting appropriate to the needs of the qualified individual with a disability.” See 28 C.F.R § 

41.51(d). Policies, practices, and procedures that have the effects of unjustifiably segregating 

persons with disabilities in institutions constitute prohibited discrimination under the 

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Rehabilitation Act. 

109. Defendant is a recipient of federal funds under the Rehabilitation Act. The Plaintiff 

is a qualified individual with a disability under Section 504 of the Rehabilitation Act. 

110. The actions by Defendants constitute unlawful discrimination under 29 U.S.C. § 

794(a), violate the mandate that no qualified handicapped person should be denied benefits on the 

basis of handicap, and violate the regulations implementing this statutory prohibition. 28 C.F.R. 

§ 41.51(d). 

111. Plaintiff is an individual who requires 24-hour skilled nursing services for her

health, welfare, and survival. The Defendants’ failure to grant payment of needed benefits to 

Plaintiff violates § 504 of the Rehabilitation act of 1973 and its implementing regulations. 

112. As a consequence of’ Defendant’s actions as described herein, Plaintiff has

suffered damages, including compensatory, mental anguish and other damages.

COUNT SIX – VIOLATION OF DUE PROCESS

CLAUSE –14TH AMENDMENT OF U.S. CONSTITUTION AND

42 U.S.C. § 1983

113. Plaintiff incorporates all paragraphs set out above as if fully set forth herein.

114. To comply with the Due Process guarantees under the United States Constitution, 

the Defendant must provide the Plaintiff with a meaningful notice that apprises her of the reasons 

for denial of assistance and the authority for the denial. 

115. Furthermore, Plaintiff is entitled to accommodations due to her physical and/or 

mental incapacity that allow her to access benefits under the Medicaid program for which she is 

eligible. Plaintiff is additionally entitled to a hearing when such benefits are denied to her and for 

the reasons enumerated under the Federal Medicaid act. 

116. Defendant’s notices to Plaintiff and the denial of a hearing upon her request for an 

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appeal of the denial of Medicaid benefits does not adequately apprise her of the action against her, 

or of the reasons for the denial, or the authority for the denial. The notices are therefore 

inconsistent with the Due Process Clause of the United States Constitution, Amendment XIV and

the Medicaid Act, Title XIX of the Social Security Act, Title 42 § 1396a, et seq., and its 

implementing regulations. 

117. The Defendants acted willfully, knowingly, and purposefully with the specific 

intent to deprive Plaintiff of her rights, privileges, or immunities secured by the Constitution and 

laws by the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the 

United States and by 42 U.S.C. §1983.

118. The above acts were committed under color of state law by the Defendants. Said 

acts were committed by the Defendants by and through representatives of the Defendants acting 

in their official capacities pursuant to the statutes, ordinances, laws and policies of the Defendants

119. As a consequence of’ the Defendants’ actions as described herein, Plaintiff suffered 

damages including compensatory, mental anguish, and other damages.

COUNT SEVEN – TEMPORARY AND PERMANENT INJUNCTION

120. Plaintiff incorporates all paragraphs set out above as if fully set forth herein.

121. The above acts were committed under color of state law by the Defendants. Said 

acts were committed by and through representatives of the Defendants acting in their official 

capacities pursuant to the statutes, ordinances, laws and policies of the Defendants.

123. The Plaintiff demand temporary and permanent injunctive relief requiring that the 

Defendants issue payment of her approved Medicaid benefits.

124. Issue an Order requiring the Defendants to automatically issue payment of

Plaintiff’s Medicaid benefits. 

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VI. REQUESTS FOR RELIEF

1. Issue a Declaratory Judgment in favor of Plaintiff, requiring Defendants to adhere 

to the requirements of the Medicaid Act, the Americans with Disabilities Act, and the 

Rehabilitation Act; 

2. Declare unlawful the Defendants’ failure to arrange for medical assistance and 

nursing facility services to Plaintiff; and declare unlawful Defendants’ denial of due process to 

Plaintiff; 

3. Issue Preliminary and Permanent Injunctive relief enjoining the Defendants from 

subjecting Plaintiff to practices that violate her rights under the Medicaid Act, the Americans with 

Disabilities Act, and the Rehabilitation Act; 

4. Issue Preliminary and Permanent Injunctive relief requiring the Defendants to 

arrange for medical assistance and nursing facility services to Plaintiff and allow due process rights 

to Plaintiff;

5. Award Plaintiff the costs of this action, including reasonable attorneys’ fees, 

pursuant to 42 U.S.C. § 12205; § 504 of the Rehabilitation Act, and 42 U.S.C. § 1988; and, 

6. Award such other relief as the Court deems just and appropriate, including, but not 

limited to, compensatory and punitive damages, interest, expenses and costs. 

PLAINTIFFS HEREBY DEMANDS A TRIAL BY JURY. 

Sb2 INC

/s/ Elizabeth Wilfong

OH# 0088172

1426 N. 3rd St. Suite 200

Harrisburg, PA 17102

Phone: (513) 814-4144

Fax: (717) 909-5925

ewilfong@sb2inc.com

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s/ Katie Z. Van Lake

IL ARDC# 6292120

1426 N. 3rd Street, Suite 200

Harrisburg, PA 17102

Telephone: (516) 509-1289

Facsimile: (717) 909-5925

kvanlake@sb2inc.com

Pro Hac Vice Motion to be filed 

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