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

_________________

K

ATHRYN A. P RICE , et al., Plaintiffs-Appellees ,

v

.

M EDICAID D IRECTOR , Office of Medical Assistance, et al., Defendants-Appellants

. ┐ │ │ │ │ │ │ │ │ ┘ No. 15-4066

Appeal from the United St ates District Court for the Southern District of Ohio at Cincinnati. No. 1:13-cv-00074—Karen Lit kovitz, Magistrate Judge. Argued: April 28, 2016 Decided and Filed: September 30, 2016
Before: BOGGS and KETHLEDGE, Circu it Judges; STAFFORD, District Judge. *

_________________ COUNSEL

ARGUED: Jeffrey Clair, UNITED STATES DEPA RTMENT OF JUSTICE, Washington, D.C., Amicus Curiae. Jeffrey P. Jarosch, O FFICE 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. Je ffrey P. Jarosch, Cheryl R. Hawkinson, Amy R. Goldstein, OFFICE OF THE OHIO ATTORNEY GE NERAL, Columbus, Ohio, for Appellants. Eric M. Carlson, JUSTICE IN AGING, Los Angele s, 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, Clevel and, Ohio, William J. Brow ning, 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. 

### >No. 15-4066 Price, et al. v. Medica id Director, et al. Page 2

_________________ OPINION

_________________ KETHLEDGE, Circuit Judge. Ohio offers assisted-living covera ge to its Medicaid beneficiaries on a prospectiv e 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 Clau se power to esta blish Medicaid. See U.S. Const. art. I, § 8, cl. 1. Thr ough Medicaid, the federal government gives money to the States for the purpose of paying th e medical costs of people “whose in come 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 Spen ding Clause legislation, Medicaid offers the States a bargain: Congress provides federal funds in exchange fo r 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 amo unt, 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 r ecognized that these requirements needlessly diverted many Medicaid beneficiar ies into impersonal an d expensive long-term residence at hospitals, nursing hom es, and intermediate-care faciliti es, 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).No. 15-4066 Price, et al. v. Medica id Director, et al. Page 3

Since 1981, therefore, Congress has allowed th e Secretary of Healthand 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 “comm unity-based” health services (which include assisted-living services) to Medicaid benefici aries “with respect to whom there has been a determination that but for the pr ovision of such services the [b eneficiaries] would require the level of care provided in a hosp ital 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 servic es rather than more-intrusive (and expensive) nursing-home services. In return for this flex ibility, the State must individually evaluate Medicaid beneficiaries regarding their “eligib[il ity] for such home or community-based care[.]”
Id. § 1396n(c)(2)(B)(iii). In addi tion, the State may cover only community-based services—such as assisted-living services—that have been prov ided “pursuant to a written plan of care[.]” Id. § 1396n(c)(1).
In 2006, the State of Ohio applied for a nd 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 Me dicaid funding through the assi sted-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 disburse ment of any Medicaid funding for waiverprogram services rendered before the pa ssport agency approves the service plan. See Ohio Admin. Code 173-38-03(C)(1)(c).No. 15-4066 Price, et al. v. Medica id Director, et al. Page 4

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 cente r’s $4,300 monthly fee out of her own pocket. Then she ran out of money, and her daughters bega n paying the center’s fee. In October 2012, Hilleger applied for Medicaid assistance through Oh io’s assisted-living waiver program. Soon thereafter, her local passport agency approved a se rvice plan for her. Later, in January 2013, the agency determined that Hilleger was financially e ligible 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 th en a rehabilitation facility after suffering a fall. Her stress fractu res 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 Medi caid assistance through Ohio’s assisted-living waiver program. Eighteen days later, the local passport agen cy 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—a cting through their daughters, Marilyn Wenman and Kathryn Price, respectively—sued th e director of Ohio’s Medicaid program and the director of the Ohio Department of Aging in a putative class action in fe deral district court. The plaintiffs alleged that Ohio’s omissions of Medicaid coverage fo r 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 plain tiffs 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 cove r the assisted-livingNo. 15-4066 Price, et al. v. Medica id Director, et al. Page 5

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] ma de 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 th ey were eligible for Medicaid assistance under Ohio’s waiver program from the moment each of them took up re sidence at their assist ed-living centers, and that they were therefore entitl ed to retroactive benefits ( i.e. , payments for services provided before a passport agency’s approval of their servi ce plans) under § 1396a(a)( 34). The plaintiffs
asked the district court to ente r a declaratory judgment that Oh io’s waiver pr ogram violated § 1396a(a)(34). They also asked the district cour t to enjoin the defendan ts from “artificially delaying” payment of the plaintiffs’ assisted-liv ing benefits, and to provi de 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 th eir complaint and added two more claims under § 1983: that the defendant s failed to comply with the not ice requirements of 42 U.S.C. § 1396a(a)(3); and that the defenda nts 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] me t the financial eligibility benefits; whether the [applicant] had a need for intermediate or skill ed level of care; and whether the [applicant] received supportive services consistent with the plan of ca re. If so, the State must grant
retroactive assisted livin g waiver benefits in accordance with § 1396a(a)(34).” The court also
held that the defendants had vi olated their duties under federa l law to provide notice of the plaintiffs’ hearing rights and to provide Medicaid coverage reasona bly promptly. In addition, the
court declared that the defenda nts were obligated, going forward, to provide Medicaid assisted-No. 15-4066 Price, et al. v. Medica id Director, et al. Page 6

living coverage to eligible beneficiaries for up to three months prior to the date of their applications. Finally, the court ordered the defe ndants to identify and provide all members of the
class with written notice “of the state administ rative procedure” available “to have defendants determine whether or not they may be eligible for additional days of Me dicaid assisted living waiver coverage.”
This appeal followed.

II.

A.
The defendants argue that the plaintiffs lack standing to sue and th at 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 pl aintiff 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 s how that there is a “causal connection” between her injury and th e defendant’s actions. Id. Third, “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favor able decision.” Id. at 561.

The defendants focus on the third element here , arguing that the plai ntiffs lack standing because the relief awarded by the district court cannot redress the named plaintiffs’ injuries. As to the claim asserted in the pl aintiffs’ 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 se rvice 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) th e plaintiffs cannot use th e declaration to obtainNo. 15-4066 Price, et al. v. Medica id Director, et al. Page 7

an award of damages in federal c ourt; 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 stat e 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 decl aratory judgment that Hilleger a nd Saunders were entitled to additional benefits is useless to them as a prac tical 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 notif ied 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 afte r the initiation of this lawsu it, and Saunders currently lives in a nursing home, with no sign that she will ever re turn to an assisted-living facility. Thus, the relief awarded by the district court—the declara tion of entitlement to additional benefits, and notice of a state hearing in whic h 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 Hi lleger’s 90-day window to seek a hearing was still open when the plaintiffs filed their complain t in this case. (Saunde rs’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 d eemed 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 th e 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 pl aintiff’s fault that the district court could not rule upon that motion before her “inherently tr ansitory” claims expired. See Genesis Healthcare Corp. v. Symczyk , 133 S. Ct. 1523, 1531 (2013).) Hilleger meets that test here—at the time she filed herNo. 15-4066 Price, et al. v. Medica id Director, et al. Page 8

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 fort h 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 ba sis; “standing is not dispensed in gross.” Fednav, Ltd. v. Chester , 547 F.3d 607, 614 (6th Cir. 2008). The pl aintiffs have standing to assert only the claims they had standing to assert wh en 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 th erefore 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 dist rict court erred when it concluded that the plaintiffs have standing to sue on their other claims.

B.
The defendants argue that the Eleventh Amen dment 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 th at state officers meet their obligations under federal law. Thus, a federal court may, withou t violating the Eleventh Amendment, issue a prospective injunction against a state officer to end a continuing viola tion 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 fe deral court may enjoin the state’s officers to comply with federal law by awarding those benef its in a certain way going forward—even if theNo. 15-4066 Price, et al. v. Medica id Director, et al. Page 9

court may not order those officers to pay out pub lic benefits wrongly withheld in the past.
See Edelman v. Jordan , 415 U.S. 651, 667-68 (1974). And the c ourt may order state officers to provide recipients of public be nefits 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 ac cordance with that injunc tion—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 c ourt ordered) prospective relief in the form of an injunction directing the defendants, Ohio’s Me dicaid administrators, to cease their practice of providing waiver-program benefits only for the pe riod 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 cour t also ordered the defendants to notify class members of the court’s inju nction and of their right to use Ohio’s administra tive procedures to obtain any past Medicaid benefits to whic h the plaintiffs might be entitled under the injunction. That makes this order no differen t than the one the Supreme Court permitted in Quern . There, the order “simply inform[ed] class memb ers that their federal su it [was] at an end, that the federal court [could] pr ovide them with no further relief, and that there [were] existing state administrative procedures wh ich they may wish to pursue.” Quern , 440 U.S. at 349. The
district court’s order he re provides the same kind of notice the order in Quern did. Thus, the
district court’s order did not ab ridge Ohio’s sove reign immunity.
The defendants argue that the district court’s order violates the Eleventh Amendment because the order might be construed as comma nding 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 th e state administrative procedure, compliant with due process requirements, available if [the pl aintiffs] desire to ha ve defendants determine whether or not they may be eligible for addi tional 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 classNo. 15-4066 Price, et al. v. Medica id Director, et al. Page 10

members who are still entitled to a hearing under state law, and t hus might ultimately lead to payment of benefits that ar e past due. But that result is consistent with Quern . The Eleventh Amendment therefore does not bar the pl aintiffs’ 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 a pproval 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 assist ed-living services that are rendered before a beneficiary’s service plan is approved.

We review de novo the district cour t’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 Medi caid 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] ma de 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 furn ished during the three m onths 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 “pursuan t to a written plan of care[.]” Accordingly, under Ohio’s implementing regulations, a prosp ective Medicaid beneficiary becomes “eligible” for assisted-living benefits only after, among ot her 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 plai ntiffs were thus ineligible for Medicaid assisted-living benefits before a state passport agency approve d their respective service plans.No. 15-4066 Price, et al. v. Medica id Director, et al. Page 11

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 th e United States points out, the defendants would have violated federal law if they had used Me dicaid funds to pay for a ssisted-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 “consiste nt with”; and thus, in the plaintiffs’ view, they are entitled to reimbursement fo r 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 “pur suant 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 normallyused in legal cont exts; the leading legal dictionary defines “pursuant to” as “[i]n comp liance with[,]” “[a]s aut horized 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 spec ified individual or entity from participation in the program under the State plan for the period sp ecified 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) (“eligibili ty 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 Congr ess has not yet passed. Nor can a police officer search a home “pursuant to” a warran t she obtains after the search; the FourthNo. 15-4066 Price, et al. v. Medica id Director, et al. Page 12

Amendment’s warrant requirement would be meaningl ess if an officer could search first, then obtain a warrant, and then claim she acted “pur suant to” it simply b ecause 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 c onsistent 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 ac tion is directed or pe rmitted 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 “consiste nt with” a service pla n, 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 Oh io’s waiver program and the relevant provisions of the Medicaid Act, therefore, assisted-living benef its 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 fe deral law, rather than violated it, when they declined to use Medicaid funds to pay for assist ed-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 Medi caid 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 agen cy, 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 Medi caid coverage for assisted-living services, she can get a written plan of care appr oved in advance of he r application. That wa y, 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 th e time her application is approved—she canNo. 15-4066 Price, et al. v. Medica id Director, et al. Page 13

ensure that a service plan is in place in advanc e, and thereby receive benefits retroactive to the time of application if and when she a pplies, 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 assist ed-living benefits constitutes an application for Medicaid, and that it is therefor e impossible to obtain pr e-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 se niors to receive an “in- person [eligibility] assessment” from the local passport agency before making an application withthe Department of Job and Family Services. Ohio Admin. Code 5160-33-04(A)(2). And that pr ovision, on its face, permits seniors to obtain service-plan approvals before they apply for bene fits. Ohio has thus provided a mechanism that permits Medicaid coverage for assisted-living se rvices 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’ interp retation of these provisions would abridge the plain terms of § 1396n(c)(1), by st ripping the phrase “pursu ant to” of its core meaning. Thus, as the United States has lo ng recognized, § 1396n(c )(1) permits Medicaid funding only for assisted-living services that are authorized by a pre ceding 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 Me dicaid beneficiary’s serv ice plan. Given that holding, we choose not to address the question whether the district court properly certified the class. Instead we simply vacat e the court’s certif ication order.
The district court’s judgment is reversed, a nd the case remanded with instructions to enter judgment in favor of the defendants.