The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge:
Wednesday, 03 October, 2012 02:46:51 PM Clerk, U.S. District Court, ILCD
This matter comes before the Court on Defendant's Motion to Dismiss Counts II, III, and IV of the Complaint (d/e 4). For the reasons that follow, the Motion is DENIED.
I. BACKGROUND On March 8, 2012, S.B., by and through her father, W.B.*fn1 , filed a four-count Complaint (d/e 1) against Defendant, Julie Hamos, in her official capacity as Director of the Illinois Department of Healthcare and Family Services. The Complaint contains four counts. Plaintiff seeks injunctive and declaratory relief in the first three counts: (1) Count 1, alleging a violation of the Early and Periodic Screening, Diagnostic, and Treatment (EPSDT) program of Medicaid and 42 U.S.C. § 1983; (2) Count 2, alleging a violation of the Americans with Disabilities Act (ADA) and 42 U.S.C. § 1983; (3) Count 3, alleging a violation of the Rehabilitation Act and 42 U.S.C. § 1983. Plaintiff seeks money damages in Count 4, which is a claim for a violation of the Rehabilitation Act.*fn2
According to the Complaint, Plaintiff, S.B., is a Medicaid-eligible, 15-year-old girl who suffers from the following conditions: ADHD (Combined Type), Post-Traumatic Stress Disorder, Oppositional Defiant Disorder, Depressive Disorder, Sexual Abuse Victim, Sexual Abuse Perpetrator, and Mild Mental Retardation. Cmplt. ¶¶ 1, 28, 41. On April 30, 2011, Plaintiff was admitted to Lincoln Prairie Behavioral Health Center (Lincoln Prairie) in Springfield, Illinois. Cmplt. ¶ 77. After her discharge from Lincoln Prairie, Plaintiff was directly admitted to Riverside Academy (Riverside) in Wichita, Kansas, a psychiatric residential treatment facility. Cmplt. ¶ 78. Blue Cross/ Blue Shield (Blue Cross), Plaintiff's private health insurance carrier, paid for her treatment at Riverside through March 2, 2012. Cmplt. ¶ 79. While at Riverside, Plaintiff attended school and participated in recreational activities. Cmplt. ¶ 85. When Plaintiff is in the hospital, she cannot attend school and cannot leave the hospital at all. Cmplt. ¶ 86.
Effective March 2, 2012, Blue Cross denied authorization for Plaintiff's continued treatment at Riverside. Cmplt. ¶ 80. Plaintiff alleges that Blue Cross also denied authorization for treatment in a step-down residential treatment facility because Blue Cross alleged that such treatment is not a covered benefit. Cmplt. ¶ 81.
Plaintiff's therapist advised that Plaintiff should be placed in a "'step[-]down facility closer to [the] primary care givers upon successful discharge from Riverside Academy.'" Cmplt. ¶ 82; see also Cmplt. ¶¶ 93, 94 (alleging that Mary Dobbins, M.D., and Sarah Bahns LMFT have recommended that S.B. receive residential treatment). According to Plaintiff, S.B. cannot currently reside safely in her family's home and she is at risk for further hospitalization/institutionalization if she does not receive the recommended treatment in a step-down residential placement. Cmplt. ¶¶ 83, 84. However, Defendant has refused to arrange and provide funding for S.B. to receive residential treatment. Cmplt. ¶ 95. Plaintiff also alleges that the cost of treatment at a step-down residential treatment facility is approximately one-third the cost of treatment at a psychiatric hospital. Cmplt. ¶ 87.
Plaintiff asserts that she needs to be placed in a step-down residential treatment facility "for the maximum reduction of her mental disability and for the restoration of her to the best possible functional level." Cmplt. ¶ 88. Plaintiff alleges that "[u]nless [she] receives the necessary intensive residential services, she will likely be at risk for many future hospitalizations." Cmplt. ¶ 89. Plaintiff also alleges that she requires residential treatment "to correct or ameliorate" her mental and behavioral conditions. Cmplt. ¶ 90.
In Count I of the Complaint, Plaintiff alleges Defendant is violating the federal Medicaid Act, 42 U.S.C. § 1396 et seq., because Defendant has failed and continues to fail to provide S.B. with "medically necessary intensive home and community based services, community residential services, and/or residential mental health services" that Defendant is mandated to provide under the EPSDT provisions of the Medicaid Act. Cmplt. ¶ 100. Plaintiff also alleges in Count I that this conduct violates 42 U.S.C. § 1983. Cmplt. ¶ 101.
In Count II, Plaintiff alleges a violation of Title II of the ADA and a violation of 42 U.S.C. § 1983. Specifically, Plaintiff alleges that S.B. is a qualified individual with a disability, the Illinois Department of Healthcare and Family Services is a public entity, and that Defendant discriminates against S.B. by failing to provide her services in the most integrated setting appropriate to her needs. Cmplt. ¶¶ 107, 108, 110. Plaintiff further alleges that "[b]y failing to provide adequate home based and community-based mental health/behavioral services, Defendant has and continues to discriminate against the Plaintiff by unnecessarily segregating her in violation of the ADA." Cmplt. ¶ 115.
In Count III, Plaintiff alleges a violation of the Rehabilitation Act and a violation of 42 U.S.C. § 1983. Plaintiff alleges that S.B. is a qualified individual with a disability under Section 504 of the Rehabilitation Act. Cmplt. ¶ 123. Plaintiff alleges that Defendant discriminates against S.B. by failing to provide her services in the most integrated setting appropriate to her needs. Cmplt. ¶ 125.
Finally, in Count IV, brought pursuant to the Rehabilitation Act (see Footnote 2), Plaintiff alleges Defendant has intentionally discriminated against S.B. by "establishing a system which requires her to become institutionalized (hospitalized) in order to receive or access intensive services to address her behavioral or emotional disorders, while other persons are able to access community based services without having to become institutionalized." Cmplt. ¶ 134. Plaintiff further alleges that Defendant's actions constitute deliberate indifference because Defendant continues to administer a system that relies heavily on hospitalization despite the demonstrated advantages of community-based programs. Cmplt. ¶ 136.
Plaintiff seeks a declaratory judgment declaring unlawful the Defendant's failure to comply with the mandates of the Medicaid Act, ADA, and Rehabilitation Act and a permanent injunction enjoining Defendant from subjecting S.B. to practices that violate her rights under the Medicaid Act, ADA, and Rehabilitation Act. Plaintiff also seeks money damages under the Rehabilitation Act, costs, and reasonable attorney fees.
II. PROCEDURAL BACKGROUND
On May 22, 2012, Plaintiff filed a Motion for Temporary Restraining Order (TRO) and a Motion for Preliminary Injunction. On May 24, 2012, the Court held a hearing on the Motion for a TRO and granted the Motion. See Opinion (d/e 13). On June 7, 2012, pursuant to the agreement of the parties, this Court entered an Agreed Order (d/e 15) providing that Defendant would fund S.B.'s placement at Lincoln Prairie so long as S.B. (1) continued to pursue applications for services through the Illinois Department of Human Services in the Children and Young Adults with Development Disabilities--Residential Waiver or Support Waiver; and (2) complied and cooperated with all of the procedures required by the Department of Healthcare and Family Services and Illinois Department of Human Services. The Agreed Order also provided that in the event S.B. was ...