MEMORANDUM OPINION AND ORDER
JOHN J. THARP, Jr., District Judge.
Nine children with mental or behavioral disorders, through their guardians, bring this suit as a putative class action against the director of the Illinois Department of Healthcare and Family Services ("Department" or "HFS"). The four-count complaint alleges violations of the Early and Periodic Screening, Diagnostic, and Treatment ("EPSDT") provisions of the Medicaid Act, 42 U.S.C §§ 1396a(a)(43), 1396d(r) and Title II of the Americans with Disabilities Act ("Title II" or "ADA"), 42 U.S.C. § 12132, and the parallel provision of the Rehabilitation Act, 29 U.S.C. § 794 ("Section 504" or "RA"). The plaintiffs claim that HFS's violation of rights secured by these federal laws entitles them to relief under 42 U.S.C. § 1983. The plaintiffs claim that HFS violates their rights by failing to provide medically necessary treatment-specifically, home or community-based (in or out-patient) mental health and behavioral services-in the most integrated setting appropriate to their needs. The plaintiffs seek declaratory and injunctive relief that would require HFS to implement appropriate screening and treatment alternatives to the acute care provided in general and psychiatric hospitals.One of the plaintiffs, N.B., also seeks monetary damages on his own behalf under the Rehabilitation Act.
Although the defendant previously elected to answer the plaintiffs' claims, this time she moves to dismiss the second amended complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. The second amended complaint does not set forth any new claims, but it adds four plaintiffs and some additional factual allegations to address concerns expressed in the opinion on class certification of the prior district judge assigned to this case. See Mem. Op. & Order, Dkt. #45 (Pallmeyer, J.). For the reasons set forth below, the defendant's motion is denied.
Through the Medicaid program, the federal government and the states provide medical assistance to needy aged or disabled persons and to families with dependent children whose income and resources are insufficient to cover the cost of care. See 42 U.S.C. § 1396. A state's participation in the Medicaid program is optional, but states choosing to participate must operate the program in conformity with federal statutory and regulatory requirements. See id. § 1396a; Wilder v. Va. Hosp. Ass'n, 496 U.S. 498, 502 (1990). Some types of medical assistance covered by Medicaid are optional ( e.g., dental services- see Bontrager v. Indiana Family and Social Servs. Admin., 697 F.3d 604, 605 (7th Cir. 2012))-while others (like the EPSDT program) are not. See generally 42 U.S.C. § 1396a(a)(10)(A) (identifying medical assistance services that must be provided in state plans). Each state participating in the Medicaid program must submit for approval to the U.S. Secretary of Health and Human Services ("HHS") a plan setting forth the services that the state will provide in its Medicaid program ("state plan"). Radaszewski v. Maram, 383 F.3d 599, 601 (7th Cir. 2004). Illinois participates in Medicaid, and HFS administers the state's program pursuant to the requirement that states designate a single agency for that purpose. See 42 U.S.C. § 1396a(a).
EPDST is a Medicaid program providing comprehensive and preventive healthcare services for children under age twenty-one who are eligible for Medicaid. See id. § 1396d(r). Among other things, EPSDT requires the availability of screening services that provide "a comprehensive health and developmental history (including assessment of both physical and mental health development)." Id. § 1396d(r)(1)(B)(i). A state Medicaid plan must provide or arrange for providing "such screening services in all cases where they are requested." Id. § 1396a(a)(43)(B). The state plan must also arrange for, directly or by referral, "corrective treatment the need for which is disclosed by such child health screening services." Id. § 1396a(a)(43)(C). Further, a state must provide "necessary health care, diagnostic services, treatment, and other measures... to correct or ameliorate defects and physical and mental illness and conditions discovered by the screening services, whether or not such services are covered under the State plan." Id. § 1396d(r)(5).
State plans may cover part or all of the cost of home and community-based services in cases where, but for the provision of such services, the individuals would require the level of care provided in a hospital, nursing home, or intermediate care facility for the mentally retarded. 42 U.S.C. § 1396n(c)(1). States may, however, obtain waivers from the federal government for the provision of home and community-based services as "medical assistance" under the state plan. Id. § 1396n(c).Under such waivers, services can be provided to individuals to help them avoid institutionalization, without being subject the usual statutory requirements, including statewide availability, comparability, and income eligibility. Id.; 42 C.F.R. § 441.300.
A complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Put another way, the complaint must give the defendant "fair notice" of the claim and the grounds supporting it. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); Indep. Trust Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 934 (7th Cir. 2012). To avoid dismissal, a complaint must state a claim for relief that is "plausible on its face"-a standard requiring more than a "sheer possibility" that the defendant has acted unlawfully. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556, 570). A complaint must suggest that the plaintiff has a right to relief, providing allegations that "raise a right to relief above the speculative level." Twombly, 550 U.S. at 555; Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008). Further, a court takes all of the well-pleaded allegations as true and construes them in a light most favorable to the plaintiff. Santiago v. Walls, 599 F.3d 749, 756 (7th Cir. 2010).
The Department moves to dismiss the complaint, arguing that the plaintiffs fail to identify any "right" secured by federal law that the Department is violating, as required to state a claim under § 1983, and further contending that, as a matter of law, the ADA and the Rehabilitation Act do not require it to create new programs to provide integrated services. In response, the plaintiffs contend that the EPSDT program and the ADA and Rehabilitation Act, including their implementing regulations, establish an individually enforceable right of access to appropriate care for mental and behavioral disorders in the most integrated setting. The Court notes that in two cases presenting nearly identical claims by individual plaintiffs, Judge Myerscough in the Central District of Illinois rejected the defendant's motion to dismiss ADA and Rehabilitation Act claims. See J.T. ex rel. A.F. v. Hamos, No. 12 C 3203, 2012 WL 4760645 (C.D. Ill. Oct. 5, 2012); S.B. ex rel. W.B. v. Hamos, No. 12 C 03077, 2012 WL 4740291 (C.D. Ill. Oct. 3, 2012).
I. Rights Under Medicaid's EPSDT Program
In Count I, the plaintiffs allege that the Department violated their rights under the EPSDT provisions of Medicaid, 42 U.S.C. §§ 1396a(a)(43), 1396d(r), by failing to provide statutorily mandated services. 2d Am. Compl. ¶ 201. The defendants contend that nothing in the EPDST provisions can be read to create a federal right enforceable through § 1983.
Section 1983 creates a federal remedy against anyone who, under color of state law, deprives "any citizen of the United States... of any rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983; see Maine v. Thiboutot, 448 U.S. 1 (1980) (recognizing the availability of suits to enforce individual rights under the Social Security Act). The Supreme Court has set out three factors for courts to consider in determining whether a statute creates enforceable rights: "(1) Congress must have intended that the provision in question benefit the plaintiff'; (2) the asserted right must not be so vague and amorphous that its enforcement would strain judicial competence'; and (3) the provision giving rise to the asserted right must be couched in mandatory, rather than precatory, terms.'" Planned Parenthood of Ind., Inc. v. Commissioner of Ind. State Dep't of Health, 699 F.3d 962, 972-73 (7th Cir. 2012) (quoting Blessing v. Freestone, 520 U.S. 329, 340-41 (1997)). A statute that satisfies these factors is presumptively enforceable through § 1983, Blessing, 520 U.S. at 341, but nothing "short of an unambiguously conferred right [will] support a cause of action brought under § 1983." Gonzaga University v. Doe, 536 U.S. 273, 283 (2002).
The defendant correctly points out that under the framework of Blessing and Gonzaga, a complaint must allege a violation of a federal right, not merely of federal law. Mem., Dkt. #58 at 3. Gonzaga clarified that a cause of action under § 1983 must be supported by an "unambiguously conferred right, " and not broader, vaguer "benefits" or "interests." 536 U.S. at 283. The Department therefore contends that Count I is deficient as a matter of pleading because the plaintiffs have alleged "only that Defendant violated the law; not that they have been denied Congressionally-created federal rights." Mem., Dkt. #58 at 10. The complaint states, however, that the plaintiffs seek to enforce their "rights... under the Early and Periodic Screening, Diagnostic and Treatment (EPSDT) provisions of... the Social Security Act, " and that by failing to provide "medically necessary intensive home and community based services, " the defendant has deprived them of their statutory "rights." 2d Am. Compl. ¶¶ 8, 200-201. Although Medicaid does not expressly provide for a private right of action, the Seventh Circuit has recognized that certain of its provisions may be enforced through § 1983. Bontrager v. Ind. Family & Soc. Servs. Admin., 697 F.3d 604, 607 (7th Cir. 2012) (holding that there is a private right to enforce § 1396a(a)(10)(A), which mandates that state medical assistance programs provide certain care and services-there, medically necessary dental procedures); see Bertrand ex rel. Bertrand v. Maram, 495 F.3d 452, 456-57 (7th Cir. 2007) (collecting cases and assuming a private right to enforce ...