Court rejects argument that applicants have enforceable right to services not yet offered

In Moore v. Noogle, (N.D. GA Case No. 1:19-CV-3296-TWT, 1/24/2022), the Court heard from James Moore and John Panuska, both of whom were injured in seperate motor vehicle collisions. Each had a special needs trust and each applied for newly approved, but not yet implemented, “skilled nursing hourly” benefit under Georgia Medicaid’s ICWP waiver. Delays forced each plaintiff to spend funds from their special needs trust which resulted in depletion of the trusts. In making their argument, each Plaintiff relied on 42 U.S.C. § 1396a(a)(8) which provides:

provide that all individuals wishing to make application for medical assistance under the plan shall have opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible individuals.

The District Court framed the issue as follows:

The threshold question here—whether the Medicaid Act creates enforceable federal rights as to services approved by CMS but not yet implemented by a state’s agency—appears to be an issue of first impression.

Skilled Nursing Hourly is a type of private duty nursing service, which is provided to individuals “who require more individual and continuous care than is available from a visiting nurse or routinely provided by the nursing staff of the hospital or skilled nursing facility.” The Plaintiffs allege that after CMS approved the ICWP Renewal Application on May 2, 2017, the Defendants failed to make the new Skilled Nursing Hourly services available with the promptness required by law.

The Ex parte Young doctrine did not avoid Georgia’s sovereign immunity defense because it applies only to ongoing and continuous violations of federal law. By the tiem the case was decided, each plaintiff was receiving the services requested.

Plaintiffs were also unable to overcome Georgia’s qualified immunity defense. Although there is a clear federal right to services currently being provided, …

It is not clear from Chiles that this reasonable promptness standard applies to the design and implementation of services approved by CMS, as there is no discussion that cautions state agencies and officials that services approved by CMS must be designed and implemented with reasonable promptness. And even if that standard does apply to the implementation of new services, there is nothing in Chiles or any other case law that give the Defendants fair warning that their timeline was unlawful under § 1396a(a)(8).

Further, although there is a due process right to notice and a fair hearing before services are terminated, there is no clear right to a hearing on services not yet implemented.

The Court granted Georgia’s renewed motion for summary judgment.