United States District Court, Eastern District of Pennsylvania
REBECCA LEONARD, et al. Plaintiffs
BEVERLY MACKERETH, in her official capacity as Secretary of Public Welfare for the Commonwealth of Pennsylvania Defendant.
BUCKWALTER, S. J.
Pending before the Court are the Motion for Summary Judgment by Defendant Beverly Mackereth in her official capacity as Secretary of Public Welfare for the Commonwealth of Pennsylvania and the Motion for Summary Judgment by Plaintiffs. For the following reasons, Defendant’s Motion for Summary Judgment is granted in part and denied in part and Plaintiffs’ Motion for Summary Judgment is granted in part and denied in part.
I. FACTUAL AND PROCEDURAL HISTORY 
Plaintiffs are six individuals residing in Pennsylvania. (Am. Compl. ¶¶ 7–12.) Plaintiffs Rebecca Leonard, Matthew Leonard, Michael Unger, Michael Boss, and Elisha Rothman (collectively “the Phoenixville Plaintiffs”) each reside in Phoenixville in Chester County, Pennsylvania. (Id.) Plaintiff Kimberly Hoffman (“Hoffman”) resides in Royersford in Montgomery County, Pennsylvania. (Id.) Defendant Beverly Mackereth is the Secretary of Public Welfare for the Commonwealth of Pennsylvania (“DPW”). (Def.’s Answer to Am. Compl. ¶ 13.)
A. Pennsylvania’s Medical Assistance Program
Pennsylvania is a participating state in the federal government’s Medical Assistance Program, in which the federal government reimburses participating states for roughly half the cost of paying for health care services to qualifying low-income individuals. (Pls.’ Mot. Summ. J., Ex. 1, Deposition of Pamela Cain Kuhno (“Kuhno Dep.”), Jul. 27, 2012, 15:16–16:22.) As part of the federal government’s requirements for participating states, Pennsylvania has adopted a State Plan that outlines the nature and scope of how its Medical Assistance Program will be run and ensure that it complies with Title XIX of the Social Security Act, 42 U.S.C. § 1396, et seq. (“the Medicaid Act”). (Am. Compl. ¶ 18; Def.’s Answer ¶ 18.) Pennsylvania administers its State Plan through the Department of Public Welfare (“DPW”). (Pls.’ Mot. Summ. J., Ex. 5, Def.’s Resp. to Req. for Admis. ¶ 1.)
Included in Pennsylvania’s State Plan is Medical Assistance for “Intermediate Care Facilities for Other Related Conditions” (“ICF/ORC”). (Kuhno Dep. 12:20–14:3.) An “other related condition” is a severe, chronic disability closely related to an intellectual disability. 42 C.F.R. § 435.1010. Autism is an “other related condition.” (Pls.’ Mot. Summ. J., Ex. 6, Centers for Medicare and Medicaid Services, State Medicaid Manual § 4398.)
ICF/ORC facilities serve as a residence for individuals with “other related conditions” where they receive active, round-the-clock treatment. (Kuhno Dep. 24:16–25:2, 30:7–13.) ICF/ORC facilities are generally operated by private providers and are subject to state and federal regulations under 42 C.F.R. § 483.400 et seq. and 55 Pa.C.S. § 6600. (Def.’s Mot. Summ. J., Ex. 3, Dep. of Kathleen Deans (“Deans Dep.”), Aug. 1, 2013, 17:4–16.) For an ICF/ORC to legally operate in Pennsylvania, it must receive certification from the Pennsylvania Department of Health. (Deans Dep. 53:10–23.) Presently, there are only two certified ICF/ORC facilities operating in Pennsylvania: Erie Independence House is located in Erie with a capacity of six residents, and Verland House is located in Allegheny County with a capacity of eight residents. (Id. at 87:16–88:3.) Both Erie Independence House and Verland House are currently operating at capacity. (Pls.’ Mot. Summ. J., Ex. 41, Def.’s Objections and Resp. to Pls.’ Sec. Set of Interrog. ¶ 2.)
Pennsylvania’s State Plan also includes Medical Assistance for home and community-based services (“HCBS”). (Id. at 75:19–23.) One way individuals receive HCBS through Pennsylvania’s State Plan is by applying for and obtaining an “OBRA Waiver, ” which are specifically for adults with developmental disabilities. (Pls.’ Mot. Summ. J., Ex. 11, OBRA Waiver at 4.) In order to be eligible for an OBRA Waiver, they must meet the same requirements as for ICF/ORC services. (OBRA Waiver 3–4; Kuhno Dep. 76:25–77:3.) One of the services available under the OBRA Waiver is “Community Integration, ” which is one-on-one treatment to help individuals learn and improve skills in self-help, communication, socialization, and adaptive living. (OBRA Waiver at 76.)
B. Plaintiffs’ Treatment Under Pennsylvania’s Medical Assistance Program
Plaintiffs are all adults who have autism and are residing at home with their parents. (Am. Compl. ¶¶ 7–13; Pls.’ Mot. Summ. J., Ex. 4, Pls.’ First Set of Req. for Admis. and Def.’s Resp. (“First Req. for Admis.”) ¶ 6; Id. Ex. 24, Hoffman Decl. ¶ 4.) Plaintiffs’ autism manifested during childhood, is likely to continue indefinitely, and results in substantial functional limitations in major life activities. (First Req. for Admis. ¶ 6.) Plaintiffs are all categorically needy recipients of Medical Assistance under the Pennsylvania State Plan. (Pls.’ Mot. Summ. J, Ex. 17, Stipulations ¶ 5.) Plaintiffs have each been enrolled in the OBRA Waiver for at least the last ten years. (Am. Compl. and Def.’s Answer ¶¶ 44, 46, 63, 66.)
Until April 1, 2012, DPW paid for the Phoenixville Plaintiffs to receive roughly 100 hours per week of Community Integration therapy through their enrollment in the OBRA Waiver. (Pls.’ Mot. Summ. J., Ex. 18, Decl. of Terrence McNelis (“McNelis Decl.”) ¶ 7.) The Phoenixville Plaintiffs receive their Community Integration therapy from private provider NHS Human Services (“NHS”). (Id.) Sometime before December 1, 2011, the Phoenixville Plaintiffs learned that DPW was preparing to make cuts to their benefits under the OBRA Waiver effective January 1, 2012. (Compl. ¶ 3.) Specifically, DPW had decided to cap its funding of Community Integration therapy at twelve hours per week. (Id. ¶ 50.)
Plaintiffs filed suit on December 1, 2011 against DPW. (Compl.) As a result of the present litigation, DPW postponed the enactment of its changes to the OBRA Waiver by four months and raised the cap for Community Integration therapy from twelve to twenty-one hours per week. (Pls.’ Mot. Summ. J., Ex. 10, Dep of. Virginia Dawn Rogers, (“Rogers Dep.”) Jul. 10, 2013, 87:10–88:2.) Despite the overall reduction in DPW funding for the Phoenixville Plaintiffs’ therapy, NHS has continued to provide the Phoenixville Plaintiffs approximately 100 hours per week of Community Integration therapy, though it has done so at a loss of $120, 000 as of July 15, 2013. (Pls.’ Mot. Summ. J., Ex. 21, Dep. of Terrence McNelis (“McNelis Dep.”), Jul. 15, 2013, 44:11–45:19.)
Until April 2013, Plaintiff Hoffman received her OBRA Waiver treatment from private provider Co-Op Provider. (Pls.’ Mot. Summ. J., Ex. 29, Letter from Cathryn Stein (“Stein Letter”).) Since June 2012, DPW has authorized Plaintiff Hoffman to receive round-the-clock OBRA Waiver services. (Pls.’ Mot. Summ. J., Ex. 27, Dep. of Claire Hoffman (“Hoffman July 2012 Dep.”), Jul. 26, 2012, 39:11–24.) On April 10, 2013, Hoffman received a letter from CoOp Provider stating that it would no longer be providing services to her because it was “unable to staff the [DPW-]authorized services” including “Community Integration.” (Stein Letter.) As of June 11, 2013, Hoffman’s parents paid out-of-pocket to continue Hoffman’s Community Integration therapy for eight-to-twelve hours per wek. (Pls.’ Mot. Summ. J., Ex. 26, Dep. of Claire Hoffman (“Hoffman June 2012 Dep.”) Jun. 11, 2013, 55:3–57:3.)
C. Plaintiffs’ Request for Placement in an Intermediate Care Facility for Other Related Conditions (“ICF/ORC”)
When the Phoenixville Plaintiffs learned of DPW’s planned reduction in hours for Community Integration services, they requested, through their parents, that DPW allow them to enroll in ICF/ORC services. (Rogers Dep. 106:16–18.) Similarly, when Hoffman’s behavior began to change and she expressed a desire to live away from her family, Hoffman’s parents requested to DPW that Hoffman be able to enroll in ICF/ORC services. (Hoffman Dep. 7:24–8:24.) Plaintiffs are each eligible to receive ICF/ORC services under the Pennsylvania State Plan. (Kuhno Dep. 159:14–18; Dep. of Fred Lokuta (“Lokuta Dep.”), Jul. 12, 2013 76:9–22.)
In February 2012, after Plaintiffs had commenced the present litigation, NHS, the private provider for the Phoenixville Plaintiffs’ OBRA Waiver services, contacted DPW about the possibility of developing a new ICF/ORC facility. (Pls.’ Mot. Summ. J., Ex. 47, McNelis-Kuhno E-Mail Correspondence.) DPW responded that “the existing ICF/ORC programs were started as pilot projects” in the mid-1990s and that “[t]he Department currently has no plans to expand that program. Beyond that barrier, there are no funds available in this fiscal year, or next fiscal year (12-13) to develop a 5 bed home. Sorry.” (Id.) Nevertheless, DPW provided Plaintiffs, through their counsel, a list of specific steps necessary to develop a new ICF/ORC facility and a list of DPW contacts for licensing and budget questions. (Def.’s Mot. Summ. J., Ex. 15, Wolson-Darr E-mail Correspondence.)
D. Additional Procedural History
Following the initiation of the case in December 2011 and some additional motion practice, Plaintiffs filed an Amended Complaint on June 6, 2012. This Amended Complaint bring four counts against DPW: Count I alleges violations of 42 U.S.C. §§ 1396a(a)(10)(A) and 1983 for failing to ensure access to ICF/ORC services; Count II claims violations of 42 U.S.C. §§ 1396a(a)(8) and 1983 for causing delay in the ability of Plaintiffs to timely access ICF/ORC services; Count III asserts violations of 42 U.S.C. §§ 1396a(a)(10)(B) and 1983 for precluding Plaintiffs from accessing ICF/ORC services comparable to the access afforded other Medical Assistance beneficiaries; Count IV puts forth violations of 42 U.S.C. §§ 1396n(c)(2)(C) and 1983 for failing to provide Defendants a choice between OBRA Waiver services and ICF/ORC services. For their relief, Plaintiffs request that: the Court retain jurisdiction over this action; ...