The opinion of the court was delivered by: Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Plaintiffs Christopher Bertrand and Frank Patterson Jr. ("Plaintiffs") are developmentally disabled adults eligible to participate in the Illinois Medicaid Home and Community-Based Services ("HCBS") waiver program. The HCBS program allows developmentally disabled adults to receive needed services outside of an institution. Plaintiffs seek to represent a class of developmentally disabled persons or mentally retarded persons who are enrolled and receiving services funded under the HCBS waiver program and who are seeking additional funding for more services offered in the HCBS program.
Plaintiffs bring suit against Barry S. Maram, in his official capacity as Director of the Illinois Department of Healthcare and Family Services (formerly the Illinois Department of Public Aid); Carol L. Adams, in her official capacity as Secretary of the Illinois Department of Human services; and Jerolene Johnson, in her official capacity as Director of the Division of Developmental Disabilities (together "Defendants"). Plaintiffs complain that Defendants violated and are violating their rights under 42 U.S.C. §§ 1396a(a)(8) and 1983 by failing to provide funding for Medicaid waiver services with reasonable promptness, even though Plaintiffs are eligible to receive such services. Specifically, Plaintiffs seek funding for Community Integrated Living Arrangement ("CILA") services under the waiver. Defendants have denied Plaintiffs the requested funding because Plaintiffs do not meet the Priority Population Criteria set out in the waiver. The parties have cross-moved for summary judgment. Because the Centers for Medicare and Medicaid Services ("CMS") knowingly approved Illinois' use of the Population Priority Criteria to limit CILA residential services under the waiver, Defendants have not failed to furnish Plaintiffs medical assistance with the reasonable promptness to which Plaintiffs are entitled under 42 U.S.C. § 1396a(a)(8). Accordingly, based on the undisputed facts, Defendants are entitled to judgment as a matter of law.
The Medicaid program, established under Title XIX of the Social Security Act, 42 U.S.C. §1396, et seq., is a joint federal-state program which provides medical assistance to low-income individuals. "Administration [of the Medicaid program] is entrusted to the Secretary of Health and Human Services, who in turn exercises his authority through the Centers for Medicare and Medicaid Services."*fn1 Arkansas Dept. of Health and Human Services v. Ahlborn, 126 S.Ct. 1752, 1758 (2006). States are not required to participate in the Medicaid program, but if a state elects to participate, it must comply with federal statutes and regulations. See 42 U.S.C. § 1396a(a)(10). Each state participating in the Medicaid program must provide certain mandatory services. See 42 C.F.R. § 440.210; 440.220. Other Medicaid services are optional at the discretion of each state. See 42 C.F.R. § 440.225. Once a State commits to provide optional services, it must provide them in compliance with the requirements of the Medicaid statute. States participating in the Medicaid program are required to develop a comprehensive plan for the provision of services and the plan must be approved by CMS. See 42 U.S.C. § 1396a(b); 42 C.F.R. § 430.14-15.
The State of Illinois participates in the Medicaid program and has filed a State Plan with the federal government. (Defendants' Response to Plaintiffs' Local Rule 56.1(a)(3) Statement of Material Facts, ¶ 36 ("Plfs.' 56.1, ¶ __").) The State of Illinois Medicaid program has opted to include intermediate care facilities for mentally retarded ("ICF/MR") and developmentally disabled ("ICF/DD") individuals. (Plfs.' 56.1, ¶ 36); see 42 U.S.C. § 1386d(a)(15), (d). The Medicaid statute allows states to bring even a broader range of services into Medicaid coverage through its waiver provision, which provides:
The Secretary may by waiver provide that a State plan approved under this subchapter may include as "medical assistance" under such plan payment for part or all of the cost of home or community-based services (other than room and board) approved by the Secretary which are provided pursuant to a written plan of care to individuals with respect to whom there has been a determination that but for the provision of such services the individuals would require the level of care provided in a[n] ··· intermediate care facility for the mentally retarded the cost of which could be reimbursed under the State plan.
The State of Illinois requested and received a Medicaid Home and Community-Based Services waiver ("the Waiver") under the authority of § 1915(c) of the Social Security Act, 42 U.S.C. § 1396(c). (Plfs.' 56.1, ¶ 47.) The Waiver allows Illinois to provide home and community-based services to individuals who, but for the provision of such services, would require the level of care provided at an intermediate care facility for mentally retarded or developmentally disabled persons aged eighteen and older. (Plaintiffs' Response to Defendants' Local Rule 56.1(a)(3) Statement of Material Facts, ¶¶ 34-36 ("Defs.' 56.1, ¶ __").) Upon meeting the eligibility requirements for the Waiver ,"the recipient or his or her legal representative will be -- (1) Informed of any feasible alternatives available under the waiver; and (2) Given the choice of either institutional or home and community-based services." 42 C.F.R. § 441.302.
The State of Illinois requested that various home and community-based services, including residential habilitation, be included in the Waiver. (Defs.' 56.1, ¶ 44.) "Residential habilitation" includes necessary nursing assessment, direction and monitoring by a registered professional nurse, and support services and assistance by a registered professional nurse or a licensed practical nurse to ensure the individual's health and welfare. (Defs.' 56.1, ¶ 48.) Residential habilitation services under the Waiver are provided in the Community Integrated Living Arrangement ("CILA") program. (Defs.' 56.1, ¶ 50.) The CILA program provides services and support in small group home settings, host family arrangements, individuals' own homes and family homes. (Defs.' 56.1, ¶ 51.) For residential services, including residential habilitation in a CILA, the State gives service priority to eligible persons according to the following priority population criteria: (1) individuals who are in crisis situations (e.g., including but not limited to, persons who have lost their caregivers, persons who are in abusive or neglectful situations); (2) individuals who are wards of the Illinois Department of Children and Family Services and are approaching the age of 22 and individuals who are aging out of children's residential services funded by the Office of Developmental Disabilities; (3) individuals who reside in State-Operated Developmental Centers; (4) Bogard class members, i.e., certain individuals with developmental disabilities who currently reside in a nursing facility; (5) individuals with mental retardation who reside in State-Operated Mental Health Hospitals; (6) individuals with aging caregivers; and (7) individuals who reside in private ICFs/MR or ICFs/DD. (Defs.' 56.1, ¶ 55.) The State of Illinois adopted the Priority Population Criteria for residential services to allocate effectively resources to those individuals who are most in need of residential services under the Waiver. (Defs.' 56.1, ¶ 56.) If an individual does not meet the Priority Population Criteria and wants to receive residential services, the individual must receive them in an institutional setting through the ICF/DD program. (Defs.' 56.1, ¶ 57.)
Christopher Bertrand is a developmentally disabled adult who was 23 years old at the time the complaint was filed. (Defs.' 56.1, ¶¶ 1-2.) State officials found Christopher Bertrand eligible to participate in the HCBS-DD Waiver Program. (Defs.' 56.1, ¶ 3.) An application for CILA Services was submitted on Bertrand's behalf in December 2004. (Defs.' 56.1, ¶ 4.) The State denied his application in January 2005, because he did not meet the Priority Population Criteria for residential habilitation services. (Defs.' 56.1, ¶ 5.) In February 2005, Bertrand's application for CILA Services was resubmitted, this time with a letter from Bertrand's parents, describing their relative age and declining health. (Defs.' 56.1, ¶ 6.) The State approved his application in March 2005. (Id.)Bertrand has been receiving funding for CILA Services from the HCBS-DD waiver program since May 24, 2005. (Defs.' 56.1, ¶ 7.)
Plaintiff Frank Patterson, Jr. is a developmentally disabled adult who was 29 years old at the time the complaint was filed. (Defs.' 56.1, ¶ 9.) State officials found Patterson eligible to participate in the HCBS-DD Waiver Program. (Defs.' 56.1, ¶ 11.) Patterson does not receive funding for 24-hour CILA services, but he does receive funding for some non-residential services under the HCBSDD Waiver Program. (Defs.' 56.1, ¶¶ 12-13.)
Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The Court considers cross-motions for summary judgment from a "Janus-like" perspective, examining each party's motion in turn and viewing all evidence and drawing ...