JED S. RAKOFF, District Judge.
The intersection of our cognition with our emotions is both the essence of our humanity and the source of our anxiety. According to the plaintiffs in this class action, someone who is born with the physical equipment of one sex but emotionally identifies as someone of the opposite sex suffers severe anxiety and emotional distress that may, however, be materially alleviated by available medical procedures. Plaintiffs further contend that New York wrongly denies Medicaid coverage for many such procedures, regarding them as merely "cosmetic" or the like. The immediate question before the Court is whether the plaintiffs here can sue for redress of this alleged wrong. The Court concludes that they can.
Plaintiff Ar'es Kpaka, also a categorically needy Medicaid recipient, alleges that, although born with a male body, she has identified as female since she was three years old. Id. ¶ 136. As an adolescent, she hid her gender identity from her mother and brothers until, at age twenty-one, she was forced to move out of her mother's home and became homeless for several months. Id. ¶ 137. Now twenty-three, she is undergoing hormone therapy but still struggles with depression relating to her gender identity. Id. ¶¶ 136, 138, 140.
Plaintiff Riya Christie alleges that, growing up in Jamaica, she faced violence because of her gender expression and suffered from severe depression and suicidal thoughts. Id. ¶¶ 149-50. At the age of twenty-one, she moved to the United States and was granted asylum on the ground that her gender identity made it unsafe for her to return home. Id. ¶ 152. Now twenty-three, she continues to experience pain and anxiety as a result of the incongruence between her body and her gender identity. Id. ¶ 159. She, like Cruz and Kpaka, is a categorically needy Medicaid recipient. Id. ¶ 136.
Each of the three named plaintiffs in this class action has been diagnosed with Gender Dysphoria ("GD") (formerly known as Gender Identity Disorder).
Plaintiffs allege that, in order to alleviate the profound psychological suffering and social and occupational impairment that they experience as a result of their GD, they need certain treatments to facilitate their transitions to the gender with which they identify. The treatments they seek include breast augmentation, facial feminizing surgery, chondrolarngoplasty (commonly referred to as "tracheal shave"), body sculpting procedures, and electrolysis. Id. ¶¶ 101, 141, 157. Plaintiffs allege that these treatments are safe, effective, and medically necessary. Id. ¶¶ 83-88. However, plaintiffs allege, they have been denied access to the needed treatments because such treatments are excluded from coverage under New York State's Medicaid program. Id. ¶¶ 103, 143, 158.
Prior to 1998, medical coverage was available under New York's Medicaid program for the treatment of GD, including hormone treatment and sex reassignment surgery. Id. ¶ 2. However, in 1998, the New York State Department of Health ("DOH"), which is responsible for administering the state's Medicaid program, promulgated 18 N.Y.C.R.R. § 505.2(1), which barred payment for all "care, services, drugs or supplies rendered for the purposes of gender reassignment" treatment or for "promoting" such treatment ("Section 505.2(1)"). Id.
On June 19, 2014, plaintiffs filed a class action complaint on behalf of themselves and all similarly situated individuals against Dr. Howard Zucker, acting in his official capacity as Commissioner of DOH, alleging that Section 505.2(1) violates various provisions of state and federal law. ECF No. 1. On August 21, 2014, the parties agreed to a Provisional Stipulation and Order of Class Certification, pursuant to which the Court certified a class consisting of:
ECF No. 23. Subsequently, on December 17, 2014, DOH published a Notice of Proposed Rule Making that proposed amendments to Section 505.2(l) ("Amended Section 505.2(l)").
The proposed Amended Section 505.2(l) lifted the blanket ban on coverage for treatment of GD, making hormone therapy and gender reassignment surgery available to certain Medicaid recipients. Am. Compl. ¶ 5; Declaration of John Gasior dated April 17, 2015, ECF No. 31 ("Gasior Decl.") Ex. 1. However, it preserved two important coverage exclusions. First, it excluded coverage for "cosmetic surgery, services, and procedures," which it defined as "anything solely directed at improving an individual's appearance," including but not limited to certain enumerated procedures such as breast augmentation, electrolysis, thyroid chondroplasty, and facial bone reconstruction, reduction, or sculpturing (the "Cosmetic Procedures Exclusion"). Gasior Decl. Ex. 1. Second, it did not provide coverage for hormone therapy or gender reassignment surgery for individuals under the age of eighteen, or for gender reassignment surgery for individuals under the age of twenty-one where such surgery would result in sterilization (the "Youth Exclusion"). Id.
The Amended Section 505.2(l) came into effect on March 11, 2015. On March 27, 2015, plaintiffs filed their Amended Complaint.
Defendant moved to dismiss the Amended Complaint. By "bottom line" Order dated June 26, 2015, the Court granted in part and denied in part defendant's motion. ECF No. 46. This Opinion explains the reasons for those rulings.
As discussed above, in their Amended Complaint, plaintiffs allege violations of various provisions of the federal Medicaid Act. Medicaid is a cooperative state and federal benefit program designed to provide necessary medical services to "needy persons of modest income." Cmty. Health Ctr. v. Wilson-Coker, 311 F.3d 132, 134 (2d Cir.2002). "`States need not participate in the program, but if they choose to do so, they must implement and operate Medicaid programs that comply with detailed federally mandated standards.'" Cmty. Health Care Ass'n of N.Y. v. Shah, 770 F.3d 129, 135 (2d Cir.2014) (quoting Three Lower Cnties. Cmty. Health Servs., Inc. v. Maryland, 498 F.3d 294, 297 (4th Cir.2007) (internal quotation marks omitted)). States that elect to receive federal Medicaid funds must submit a plan detailing how they will spend such funds to the Centers for Medicare and Medicaid Services, a federal agency within the Department of Health and Human Services. Wilson-Coker, 311 F.3d at 134 (citing 42 U.S.C. §§ 1396, 1396a). State Medicaid plans are subject to extensive requirements, four of which are relevant here.
Availability. The Availability Requirement provides that a state plan for medical assistance "must provide . . . for making medical assistance available [to all categorically needy individuals], including at least" certain enumerated types of care and services, including inpatient and outpatient hospital services, laboratory and x-ray services,
The implementing regulation, 42 C.F.R. § 440.210, requires the State plan to provide categorically needy individuals with the "services defined in § 440.10 through 440.50[and] 440.70." Those provisions, in turn, further define the types of services that must be provided. For example, "inpatient hospital services" are defined as services that "(1) are ordinarily furnished in a hospital for the care and treatment of inpatients; (2) are furnished under the direction of a physician or dentist; and (3) are furnished in an [appropriate and approved] institution . . ." 42 C.F.R. § 440.10(a). Similarly, "physicians' services" are defined as "services furnished by a physician . . . [w]ithin the scope of practice of medicine or osteopathy as defined by State law; and . . . [b]y or under the personal supervision of an individual licensed under State law to practice medicine or osteopathy." 42 C.F.R. § 440.50(a).
The implementing regulations further provide, in relevant part:
42 C.F.R. § 440.230.
Comparability. The Medicaid Act's Comparability Requirement provides that "the medical assistance made available to any [categorically needy individual] . . . shall not be less in amount, duration, or scope than the medical assistance made available to any other such individual." 42 U.S.C. § 1396a(a)(1)(B)(i). Its implementing regulation provides that the state's "plan must provide that the services available to any [categorically needy] individual. . . are equal in amount, duration, and scope for all beneficiaries within the [categorically needy] group." 42 C.F.R. § 440.240(b). The purpose of the Comparability Requirement is to make clear that "states may not provide benefits to some categorically needy individuals but not to others." Rodriguez v. City of New York, 197 F.3d 611, 615 (2d Cir.1999).
EPSDT. The Medicaid Act further requires a state plan for medical assistance to provide "early and periodic screening, diagnostic, and treatment services," including regular screening for physical and mental illnesses and conditions, to eligible individuals under the age of twenty-one. 42 U.S.C. §§ 1396a(a)(43), 1396d(r). In addition, the state plan must provide "[s]uch other necessary health care, diagnostic services, treatment, and other measures. . . to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the State plan." 42 U.S.C. § 1396d(r)(5).
Reasonable Standards. Finally, the Medicaid Act requires that the state plan must "include reasonable standards . . . for determining eligibility for and the extent
Plaintiffs' claims alleging violations of the Availability Requirement (Count I), the Comparability Requirement (Count II), and the EPSDT Requirement (Count VI) of the federal Medicaid Act are brought pursuant to 42 U.S.C. § 1983 ("Section 1983"), which provides:
42 U.S.C. § 1983. In his motion to dismiss, defendant argued that Section 1983 does not create a private right of action to enforce these provisions, and therefore that plaintiffs' Counts I, II, and VI must be dismissed for failure to state a claim.
In Maine v. Thiboutot, the Supreme Court held that the Section 1983 remedy encompasses rights conferred by federal statutes. 448 U.S. 1, 4, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980). Nonetheless, "[i]n order to seek redress through § 1983, . . . a plaintiff must assert the violation of a federal right, not merely a violation of federal law." Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997). In determining whether a particular statutory provision gives rise to a federal right, courts apply a three-pronged test: (1) "Congress must have intended that the provision in question benefit the plaintiff"; (2) "the plaintiff must demonstrate that the right assertedly protected by the statute is not so `vague and amorphous' that its enforcement would strain judicial competence"; and (3) "the statute must unambiguously impose a binding obligation on the States," meaning it "must be couched in mandatory, rather than precatory, terms." Id. at 340-41, 117 S.Ct. 1353. If the plaintiff demonstrates that the federal statute creates an individual right, the defendant many nonetheless rebut the presumption that such right is enforceable via a Section 1983 action by showing that Congress "specifically foreclosed a remedy under § 1983," either expressly or "impliedly, by creating a comprehensive enforcement scheme that is incompatible with individual enforcement under § 1983." Id. at 341, 117 S.Ct. 1353 (internal quotation marks and citations omitted). This test is known as the "Blessing" test.
In Gonzaga University v. Doe, the Supreme Court clarified that, with respect to the first prong of the Blessing test, it "reject[ed] the notion that our cases permit anything short of an unambiguously conferred right to support a cause of action brought under § 1983." 536 U.S. 273, 283, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002). It was insufficient, the Court held, that the "plaintiff falls within the general zone of interest that the statute is intended to protect." Id. at 283, 122 S.Ct. 2268. The Court reaffirmed that "unless Congress `speak[s] with a clear voice,' and manifests an `unambiguous' intent to confer individual rights, federal funding provisions provide no basis for private enforcement by § 1983." Id. at 280, 122 S.Ct. 2268 (quoting Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17, 28
In arguing that provisions of the Medicaid Act cited by plaintiffs do not create private rights of action under Section 1983, defendant relies heavily on Casillas v. Daines, 580 F.Supp.2d 235, 242 (S.D.N.Y. 2008). The plaintiff in that case, Terri Casillas, was a New York State Medicaid recipient who had been diagnosed with GD, and whose physicians had recommended that she undergo hormone therapy, orchiectomy (removal of the testes), and vaginoplasty (removal of the penis and creation of a vagina). Id. at 237-38. She brought an action under Section 1983 challenging the original Section 505.2(1) under the Availability and Comparability Requirements of the Medicaid Act.
With respect to the Availability Requirement, Casillas held that neither the first nor the second prong of the Blessing test was met. As to the first prong, it held that, although the Availability Requirement may confer certain rights on certain classes of persons, it did not unambiguously confer the right that plaintiff asserted, namely the right to receive the specific treatments for GD that had been deemed medically necessary by her physicians. Id. at 241-43. The court reasoned that the Availability Requirement requires states to provide coverage for certain broad categories of medical services, but does not "mandate that a particular level or type of care must be provided." Id. at 242. In so finding, it relied on Supreme Court's decision in Beal v. Doe, 432 U.S. 438, 97 S.Ct. 2366, 53 L.Ed.2d 464 (1977), for the proposition that "nothing in the statute suggests that participating states are required to fund every medical procedure that falls within the delineated categories of medical care." Id. (quoting Beal, 432 U.S. at 444, 97 S.Ct. 2366) (alteration omitted).
The Casillas court further reasoned that the right that plaintiff asserted was inconsistent with the Availability Requirement's implementing regulation, which allows states to "`place appropriate limits on a service based on such criteria as medical necessity or on utilization control procedures.'" Id. (quoting 42 C.F.R. § 440.230(d)). These criteria, the court held, particularly the reference to "utilization control procedures," "capture concepts that do not relate to the care of any one particular patient but looks to actual or expected utilization over a broader population," and thus indicate that the Availability Requirement is intended to prescribe standards with which the state plan must comply rather than to create individual rights. Id.
As to the second prong of the Blessing test, Casillas further held that the phrase "utilization control procedures" was "so `vague and amorphous' that its enforcement would strain judicial competence." Id. at 243 (quoting Blessing, 520 U.S. at 340-41, 117 S.Ct. 1353). This term, the court noted, is "susceptible to multiple plausible interpretations and lacks a fixed meaning." Id. Moreover, it noted, the regulation permits a state to rely on other unspecified criteria in crafting "appropriate limits" on medical services, thereby compounding the vagueness problem. Id.
As an initial matter, Casillas's reliance on Beal is misplaced. That case concerned a Pennsylvania regulation that limited Medicaid coverage for abortions to those that had been certified by the recipient's physicians as medically necessary. Beal, 432 U.S. at 441-42, 97 S.Ct. 2366. In holding that the challenged regulation did not violate the Medicaid Act, the Supreme Court focused on the fact that the excluded procedures were not medically necessary. Id. at 440, 97 S.Ct. 2366 (describing the question presented as whether the Medicaid Act requires states to "fund the cost of nontherapeutic abortions" (emphasis added)). It expressly noted that denial of medically necessary treatment would pose a very different question: "Although serious statutory questions might be presented if a state Medicaid plan excluded necessary medical treatment from its coverage, it is hardly inconsistent with the objectives of the Act for a State to refuse to fund unnecessary though perhaps desirable medical services." Id. at 444-45, 97 S.Ct. 2366 (emphasis added).
Regarding the first prong of the Blessing test, the language of the Availability Requirement is expressly addressed to the needs of individual Medicaid beneficiaries: "[a] State plan . . . must provide for making medical assistance available . . . to all individuals" who meet certain eligibility requirements. 42 U.S.C. § 1396a(a)(10)(A). This is precisely the "unmistakable focus on the benefited class" that the Supreme Court, in Gonzaga, held would evince Congress's intent to create an individual right. 536 U.S. at 284, 122 S.Ct. 2268 (citation and internal quotation marks omitted). Indeed, the Third Circuit has found that "the `individual focus' of [the Availability Requirement] is unmistakable." Sabree ex rel. Sabree v. Richman, 367 F.3d 180, 190 (3d Cir.2004).
Although the Second Circuit has not had occasion to consider this question, it has held that a similarly worded provision of the Medicaid Act created a privately enforceable right. See Rabin v. Wilson-Coker, 362 F.3d 190 (2004). The provision at issue in Rabin granted a six-month extension of eligibility for medical assistance, provided the recipient complied with certain reporting requirements:
Id. at 194 (quoting 42 U.S.C. § 1396r-6(b)). The Second Circuit found that, by focusing on individual (or family) entitlements rather than high-level programmatic requirements, Congress intended to create an enforceable right. Id. at 201-02. Given the grammatical similarity between this provision and the Availability Requirement, it follows that the Availability Requirement also evinces congressional intent to create an enforceable right.
Contrary to Casillas, nothing about the existence of this right is inconsistent with the "appropriate limits" clause of the implementing regulations. 42 C.F.R. § 440.230(d). That clause simply provides that, like most rights, the right to the medical services described in the Availability Requirement is not absolute. Rather, it is subject to limits that the state may enact, consistent with the discretion vested in the state by the statute. That discretion is not boundless. The state may enact only "appropriate" limits, must provide services that are "sufficient in amount, duration, and scope to reasonably achieve [their] purpose," and "may not arbitrarily deny or reduce the amount, duration, or scope of a required service . . . to an otherwise eligible beneficiary solely because of the diagnosis, type of illness, or condition." 42 C.F.R. § 440.230(b)-(d). These provisions define the contours of the right; they do not negate its existence.
Nor is this right so "vague and amorphous" as to be judicially unmanageable under the second prong of the Blessing test. The Availability Requirement and its implementing regulations set forth in detail the services that states must provide to their needy residents, and states' compliance with these requirements is objectively measureable. See Watson v. Weeks, 436 F.3d 1152, 1161 (9th Cir.2006) ("[Sections 1396a(a)(10) and 1396d(a) supply concrete and objective standards for enforcement; they are hardly vague and amorphous.").
Casillas found that the term "utilization control procedures," as used in the implementing regulations, was not judicially manageable. Casillas, 580 F.Supp.2d at 243. But courts have had no trouble adjudicating whether a particular regulation is a valid utilization control procedure. For example, in DeLuca v. Hammons, 927 F.Supp. 132 (S.D.N.Y.1996), plaintiffs challenged a regulation, which the state defended as a utilization control procedure, that limited home-care services for new Medicaid recipients to twenty-eight hours per week. Id. at 134. The court found that this arbitrary cap was "not appropriate in that it discriminates among applicants and intentionally fails to take into account the amount of services that have been determined . . . to be necessary for the health and safety of the patient." Id. at 136. See also, e.g., Davis v. Shah, No. 12-CV-6134 CJS, 2013 WL 6451176, at *12 (W.D.N.Y. Dec. 9, 2013) (holding that regulation limiting access to medically necessary orthopedic shoes and compression stockings based on diagnosis was not valid utilization control procedure); Ladd v. Thomas, 962 F.Supp. 284, 294 (D.Conn. 1997) (holding that requirement that Medicaid recipients submit requests for prior authorization of durable medical equipment to vendor was a valid utilization control procedure).
Casillas further expressed concern that the implementing regulation permits a state agency to place "appropriate limits" on services based on unspecified other criteria. To be sure, this provision grants the state a considerable measure of discretion. It does not, however, render the asserted right entirely standardless. For example, a limitation based on genuine
Finally, regarding the third prong of the Blessing test, the Availability Requirement is framed in mandatory terms. It provides that state plans "must" make available the services described. Provision of these services is not optional. Accordingly, the Court finds that all three Blessing factors are met and the Availability Requirement creates an individual right enforceable under Section 1983.
With respect to the Comparability Requirement, the Court also finds that all three Blessing factors are met. First, the statutory language is squarely directed toward individual rights: "the medical assistance made available to any [categorically needy individual] . . . shall not be less in amount, duration, or scope than the medical assistance made available to any other such individual." 42 U.S.C. § 1396a(a)(1)(B)(i). The implementing regulations further provide that a state Medicaid "plan must provide that the services available to any individual in the following groups are equal in amount, duration, and scope for all beneficiaries within the group: (1) The categorically needy. (2) A covered medically needy group." 42 C.F.R. § 440.240(b). These provisions, like those of the Availability Requirement, focus on the particular services that individual beneficiaries are entitled to receive, not on the broader structure of the Medicaid program as a whole, and thus evince congressional intent to create individual rights.
In holding otherwise, the Casillas court relied on Rodriguez v. City of New York, 197 F.3d 611 (2d Cir.1999). In Rodriguez, New York had elected to provide certain types of personal care services to individuals with disabilities, which were not among the services it was required to provide under the Availability Requirement. Id. at 613. Plaintiffs contended that, under the Comparability Requirement, the state was required to provide "safety monitoring," a different service that plaintiffs alleged was comparable to the personal care services that the state had chosen to cover. Id. at 616. The Second Circuit rejected plaintiffs' argument, noting that "[a] holding to the contrary would ... create a disincentive for states to provide services optional under federal law lest a court deem other services `comparable' to those provided ... thereby increasing the costs of the optional services." Id.
In Casillas, the court found that the right asserted by plaintiff would, as in Rodriguez, create a disincentive for states to provide specific treatments: "the state would have to consider other possible diagnoses for which the treatment might be prescribed before deciding whether to make it available for any single condition." Id. at 244. While that may be the case, requiring the state to undertake such considerations is entirely consistent with the purpose of an anti-discrimination provision. In enacting the Comparability Requirement, Congress made clear that the states may not blithely provide services to some of their needy residents while denying the same services to others who are equally needy. Thus, this is not a reason to find that the Comparability Requirement does not give rise to an individual right.
The Comparability Requirement also satisfies the second and third prongs of the Blessing test. The standard set forth in the statute—that services provided to some categorically needy individuals may not be "less in amount, duration, or scope" than those provided to others—is neither vague nor amorphous. 42 U.S.C. § 1396a(a)(1)(B)(i). And by directing that services "shall" be comparable, Congress made clear that this requirement was mandatory and binding on the states. Accordingly, the Court finds that the Comparability Requirement creates an enforceable individual right.
Finally, although defendant makes no argument regarding the EPSDT Requirement, see supra note 2, the Court finds that the EPSDT Requirement is also privately enforceable under Section 1983. As numerous courts have held, the EPSDT Requirement (1) is unmistakably focused on the rights of Medicaid-eligible youth to receive the enumerated services, (2) provides detailed, objective, and manageable standards, including specific services that must be provided, and (3) is binding on states. See, e.g., DaJour B. v. City of New York, No. 00 Civ. 2044, 2001 WL 830674, at *8-*10 (S.D.N.Y. July 23, 2001); see also Salazar v. District of Columbia, 729 F.Supp.2d 257, 269 (D.D.C.2010).
Because the Court found that the Availability, Comparability, and EPSDT Requirements create private rights enforceable via Section 1983, the Court denied the portion of defendant's motion seeking to dismiss Counts I, II, and VI.
With respect to certain of plaintiffs' other claims, however, the Court found that defendant's motion had merit, at least in part. Regarding plaintiffs' claim that Amended Section 505.2(l) violates the Reasonable Standards Requirement
In Armstrong, the Court held that the Supremacy Clause does not confer a private right of action. Id. at 1384. Furthermore, although federal courts have inherent authority to enjoin unconstitutional actions by state and federal officials, that authority "is subject to express and implied statutory limitations." Id. at 1385. Specifically, where a statute "implicitly precludes private enforcement," a plaintiff "cannot, by invoking our equitable powers, circumvent Congress's exclusion of private enforcement." Id.
At issue in that case was Section 30(A) of the Medicaid Act, which requires state plans to:
42 U.S.C. § 1396a(a)(30)(A). The Court held that Section 30(A) is not privately enforceable because, first, the statute provides an express method of enforcement, namely withholding of Medicaid funds by the Secretary of Health and Human Services. Id. at 1385 (citing 42 U.S.C. § 1396c). The creation of an administrative remedy, the Court held, evinced Congress's intent to preclude private enforcement. Second, the Court found that Section 30(A) was not amenable to private enforcement because its mandate was so "judgment-laden," "broad," and "complex" as to be "judicially unadministrable." Id.
Like Section 30(A), the Reasonable Standards Requirement is subject to an express administrative enforcement mechanism, viz., defunding by the Secretary of Health and Human Services. 42 U.S.C. § 1396c. Furthermore, this provision consists of a broad grant of discretion to the states to implement "reasonable standards... for determining eligibility for and the extent of medical assistance under the plan" that are "consistent with the objectives of [the Medicaid Act]." 42 U.S.C. § 1396a(a)(17). Cf. Watson, 436 F.3d at 1162 ("Section 1396a(a)(17) is a general discretion-granting requirement that a state adopt reasonable standards."). Like Section 30(A), it focuses on programmatic aspects of the state plan as a whole, rather than on the specific benefits that must be accorded to individuals. Therefore, the Court concluded that the Reasonable Standards Requirement is not privately enforceable under Armstrong. Accordingly, the Court granted defendant's motion to dismiss Count III.
Turning to Count V, defendant argued in his motion that plaintiffs failed to state a claim for violation of Section 1557 of the
Plaintiffs respond that the Youth Exclusion discriminates on the basis of sex in two ways: "(1) that certain services are available to non-transgender people but denied to transgender people where medically necessary; or (2) that regardless of the availability of these treatments to people generally, these coverage exclusions have a disparate impact on transgender people for whom these services are medically necessary." Plaintiffs' Opposition to Defendant's Motion to Dismiss dated May 8, 2015, ECF No. 34, at 19.
However, plaintiffs fail to allege any facts in support of either theory.
Defendant also argued in his motion that plaintiffs failed to state a claim for violation of the Comparability Requirement because they failed to plead sufficient factual support for their contention that they have not received comparable services. However, plaintiffs clearly allege that defendant provides medical coverage to similarly situated Medicaid recipients suffering from conditions other than GD for the surgical procedures and other treatments that are denied to them under Amended Section 505.2(l), and cite a provision of the DOH regulations supporting that contention. Am. Compl. ¶¶ 107, 146, 160 (citing 18 N.Y.C.R.R. § 533.5). These paragraphs adequately plead violations of the Comparability Requirement, as they allege that defendant has provided medically necessary procedures to some individuals but not to others. See Providence Pediatric Med. Daycare, Inc. v. Alaigh, 799 F.Supp.2d 364, 374 (D.N.J.2011) (denying motion to dismiss where plaintiffs alleged that certain "children are not receiving
Defendant further argued that plaintiffs' claims with respect to the Cosmetic Procedures Exclusion are not yet ripe for adjudication because plaintiffs failed to plead that they have requested and been denied any of the procedures barred by Amended Section 505.2(l). "A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all." Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998) (internal quotation marks omitted). However, courts within this circuit do not require "a futile gesture as a prerequisite for adjudication in federal court." Desiderio v. Nat'l Ass'n of Sec. Dealers, Inc., 191 F.3d 198, 202 (2d Cir.1999) (quoting Williams v. Lambert, 46 F.3d 1275, 1280 (2d Cir.1995)). Amended Section 505.2(l), by its plain terms, excludes coverage for the procedures deemed "cosmetic." See Amended Section 505.2(l)(4) (stating that "[p]ayment will not be made" for "cosmetic surgery, services, and procedures including but not limited to" the enumerated procedures). Furthermore, the Department of Health's Medicaid Update makes clear that "payment will not be made for" the services deemed "cosmetic." Declaration of Arthur Biller dated May 8, 2015, Ex. 2, at 16. Therefore, the Court finds that any attempt to seek coverage for the so-called "cosmetic" services would have been a "futile gesture" and was not required to render plaintiffs' claims ripe for adjudication.
Accordingly, the Court denied defendant's motion to dismiss plaintiffs' claims regarding the Cosmetic Procedures Exclusion as unripe.
Finally, defendant argued in his motion that plaintiffs' Claim IV, for violation of the equal protection provisions of the New York State Constitution, is barred by the Eleventh Amendment to the United States Constitution because it asserts a purely state law claim against a state official. See Concourse Rehab. & Nursing Ctr., Inc. v. DeBuono, 179 F.3d 38, 44 (2d Cir.1999); Morningside Supermarket Corp. v. New York State Dep't of Health, 432 F.Supp.2d 334, 339 (S.D.N.Y.2006) (dismissing state law claims against DOH official as barred by the Eleventh Amendment). Plaintiffs conceded this point at oral argument. See Transcript dated May 22, 2015, ECF No. 41, at 6:18. Accordingly, the Court granted defendant's motion to dismiss Count IV of the Amended Complaint.
For the foregoing reasons, the Court, by Order dated June 26, 2015, dismissed Claims III and IV, and also dismissed Claim V with respect to the Youth Exclusion, but otherwise denied defendant's motion to dismiss the Amended Complaint.