Kathryn Price v. Medicaid Director

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. > No. 15-4066

│

│

MEDICAID DIRECTOR, Office of Medical Assistance, │

et al., │

Defendants-Appellants. │

┘

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.

No. 15-4066 Price, et al. v. Medicaid Director, et al. Page 2

_________________

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 & Community-

Based Services Waivers, 22 Health Care Fin. Rev. 123 (2000).

No. 15-4066 Price, et al. v. Medicaid Director, et al. Page 3

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 waiver-

program services rendered before the passport agency approves the service plan. See Ohio

Admin. Code 173-38-03(C)(1)(c).

No. 15-4066 Price, et al. v. Medicaid 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 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

No. 15-4066 Price, et al. v. Medicaid 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] 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-

No. 15-4066 Price, et al. v. Medicaid 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 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

No. 15-4066 Price, et al. v. Medicaid Director, et al. Page 7

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

No. 15-4066 Price, et al. v. Medicaid 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 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

No. 15-4066 Price, et al. v. Medicaid Director, et al. Page 9

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

No. 15-4066 Price, et al. v. Medicaid Director, et al. Page 10

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.

No. 15-4066 Price, et al. v. Medicaid 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 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

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

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 assisted-

living 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.