Summary
In Dajour B. v. City of New York, 2001 WL 830674, this Court held that these statutory provisions and regulations do not create enforceable rights, See id. at *11-12.
Summary of this case from Dajour B. v the City of New YorkOpinion
00 Civ. 2044 (JGK)
July 23, 2001
OPINION AND ORDER
This action is brought on behalf of numerous individual plaintiffs who claim that their rights under Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq. (the "Medicaid Act"), have been violated. The plaintiffs, DaJour B, by his parent and next friend, L.S., Darren O., by his parent and next friend, A.R., Christina F., by her parent and next friend, S.F., Tiffany C., by her parent and next friend, Y.C., Chris G., by his parent and next friend, C.F., and Devante H. by his parent and next friend, S.H., allege that the defendants, the City of New York (the "City"), Jason A. Turner, as Commissioner of the City of New York Human Resources Administration, the City of New York Human Resources Administration, Neil L. Cohen, as Commissioner of the City of New York Department of Health, the City of New York Department of Health, Martin Oesterreich, as Commissioner of the City of New York Department of Homeless Services, and the Department of Homeless Services (collectively referred to as the "City Agencies and Commissioners"), and Antonia C. Novello, as Commissioner of the New York State Department of Health (the "DOH"), have failed to provide adequate screening, diagnosis, and treatment services for homeless children with asthma as required of states that participate in the Medicaid program.
In their First Amended Class Action Complaint ("Complaint"), the plaintiffs have asserted class action allegations pursuant to Fed.R.Civ.P. 23(a) and (b)(2) on behalf of a class of all similarly situated children. (Compl. ¶¶ 120-122.) The class action motion has been briefed but has not yet been argued.
The defendant Antonia C. Novell is being sued in her official capacity as the Commissioner of DOH. Suits against state officials in their official capacity should be treated as suits against the State itself. See Hafer v. Melo, 503 U.S. 21, 25 (1991) (citing Kentucky v. Graham, 472 U.S. 159, 166 (1985)).
The plaintiffs, in their Complaint, also brought claims against Brian J. Wing, as Commissioner of the New York State Office of Temporary and Disability Assistance. Pursuant to a stipulation of the parties, so ordered by the Court on August 26, 2000, those claims were withdrawn with prejudice.
The City and the City Agencies and Commissioners have filed a motion to dismiss the First, Second and Fourth Claims set forth the First Amended Class Action Complaint ("Complaint") pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction and Fed.R.Civ.P. 12(b)(6) for failure to state a claim. DOH also moves to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim. DOH and the plaintiffs have also filed cross-motions for summary judgment.
After these motions were briefed, the plaintiffs agreed to withdraw their First, Second and Third Claims brought directly under the Medicaid Act and rely solely upon their Fourth Claim brought pursuant to 42 U.S.C. § 1983, which incorporates the allegations made in the withdrawn claims concerning violations of the Medicaid Act. See Letter to the Court from David S. Frankel, dated March 6, 2001. The plaintiffs have also agreed to dismiss the claims made against the City Agencies and Commissioners and to proceed solely against the City. See id.
I.
On a motion to dismiss, the allegations in the complaint are accepted as true. See Grandon v. Merrill Lynch Co., 147 F.3d 184, 188 (2d Cir. 1998). In deciding a motion to dismiss, all reasonable inferences must be drawn in the plaintiff's favor. See Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995); Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989). The court's function on a motion to dismiss is "not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). Therefore, the defendants' present motion to dismiss should only be granted if it appears that the plaintiff can prove no set of facts in support of its claim that would entitle it to relief. See Conley v. Gibson, 355 U.S. 41, 4546 (1957); Grandon, 147 F.3d at 188; see also Goldman, 754 F.2d at 1065.
On a motion to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), the court may consider matters outside the pleadings, such as affidavits, documents, and testimony. See, e.g., Antares Aircraft v. Fed. Republic of Nigeria, 948 F.2d 90, 96 (2d Cir. 1991); Kamen v. American Tel. Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986). Thus, the standard used to evaluate a Rule 12(b)(1) claim is similar to that for summary judgment under Fed.R.Civ.P. 56. See Kamen, 791 F.2d at 1011. The plaintiff has the ultimate burden of proving the Court's jurisdiction by a preponderance of the evidence. See Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996); Beacon Enterprises, Inc. v. Menzies, 715 F.2d 757, 762 (2d Cir. 1983); see also Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991) (when subject matter jurisdiction is challenged under Rule 12, plaintiff must bear burden of persuasion); Martin v. Reno, No. 96 Civ. 7646, 1999 WL 527932 (S.D.N.Y. July 22, 1999).
The standard for granting summary judgment is also well established. Summary judgment may not be granted unless "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Gallo v. Prudential Residential Servs. Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994). "The trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution."Gallo, 22 F.3d at 1224. The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts which are material and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also Gallo, 22 F.3d at 1223. If the moving party meets its burden, the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). With respect to the issues on which summary judgment is sought, if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994).
II. A.
Medicaid, authorized by Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq., is a joint federal and state program designed to provide "medical assistance" to needy individuals. 42 U.S.C. § 1396; Catanzano v. Wing, 103 F.3d 223, 225 (2d Cir. 1996). The Medicaid program is subsidized by the federal government, but is administered by the states. Catanzano, 103 F.3d at 225. While participation in the program is voluntary, once a state chooses to participate, it must comply with certain requirements imposed by the Medicaid Act and regulations promulgated by the Secretary of Health and Human Services ("HHS"). See Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 502 (1990); Catanzano, 103 F.3d at 225. Participating states must submit a "state plan" to the Secretary of HHS for approval before that state may receive Medicaid funds. See 42 U.S.C. § 1396a(a) (b). A participating state must provide a range of mandatory medical services to Medicaid recipients. 42 U.S.C. § 1396a et seq. Among the mandatory medical services required by the Medicaid Act is early and periodic screening, diagnosis and treatment services ("EPSDT") for eligible individuals under the age of twenty-one. See 42 U.S.C. § 1396a (a)(43), 1396d(a)(4)(B).
A state plan is a "comprehensive written statement" submitted by the state describing the nature and scope of the state's Medicaid program. See 42 C.F.R. § 430.10. The state plan "contains all information necessary for (the Health Care Financing Administration] to determine whether the plan can be approved to serve as a basis for Federal Financial Participation (FFP) in the State program." Id. The Medicaid Act sets out a list of sixty-five items that must be contained within a valid state plan. See 42 U.S.C. § 1396a(a). The Health Care Financing Administration ("HCFA"), an arm of the HHS, has been delegated the authority by the Secretary of HHS to administer the Medicaid program at the federal level and to implement the underlying regulations. See 49 Fed. Reg. 35, 247, 35,249 (1984).
42 U.S.C. § 1396d(r) defines the minimum level of EPSDT services that a participating state must provide, which includes, among other things, "screening services", at intervals which meet reasonable standards of medical and dental practice, including comprehensive health and developmental histories, comprehensive unclothed physical exams, appropriate immunizations, laboratory tests, and health education and "such other necessary health care, diagnostic services, treatment, and other measures described in subsection (a) of this section 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). In addition, a participating state must: (1) inform all eligible individuals under the age of twenty-one of the availability of EPSDT services as described in 42 U.S.C. § 1396d(r); (2) provide or arrange for the provision of screening services upon request, and (3) arrange for corrective treatment of all conditions detected by the screening. See 42 U.S.C. § 1396a(a)(43). 42 C.F.R. § 441.56, in detailing the requirements of 42 U.S.C. § 1396a(a)(43), specifies that a participating state's Medicaid programs must inform eligible individuals or their families about EPSDT services through a combination of written and oral methods, using clear and nontechnical language to inform such eligible individuals or their families about the benefits of preventative health care, where and how to obtain those services, and that the services provided under the EPSDT program are without cost to eligible individuals, and assure that the services, including screening services, are delivered. See 42 C.F.R. § 441.56.
New York State participates in the Medicaid program and has adopted a Medicaid plan. See N.Y. Soc. Serv. Law § 363 et. seq. The New York State Department of Health ("DOH") is designated as the single State agency to administer and supervise the State plan. See 42 U.S.C. § 1396a(a)(5); 42 C.F.R. § 431.10; N.Y. Soc. Serv. L. § 363-a(1). Pursuant to the requirements of the Medicaid Act, the New York State Medicaid program requires the provision of EPSDT services to eligible children in New York State through a program called the Child/Teen Health Plan ("C/THP"). See N.Y. Soc. Serv. Law § 365-a(3)(a); N.Y. Comp. Codes. R. Regs. tit. 18, §§ 508.1(a) 508.8.
The Medicaid Act and its implementing regulations permit a participating state to entrust certain responsibilities for administration of the state's Medicaid program to local agencies or offices. See 42 U.S.C. § 1396a(a)(1) (5); 42 C.F.R. § 431.10. If local agencies or offices administer a participating state's plan, the State plan is "mandatory upon them." 42 U.S.C. § 1396a(a)(1). The State of New York has assigned to each of the local social service districts within New York State — of which the City of New York is one — the responsibility for establishing and administering C/THP for its district. N.Y. Soc. Serv. Law §§ 62(1) 365. The City of New York Human Resources Administration ("HRA") administers the Medicaid program in New York City. (Affidavit of Michael B. Siller sworn to January 10, 2001 ("Siller Aff."), Ex. A at 71-73.) Pursuant to the Medicaid Act's governing regulations, however, DOH must "must [h]ave methods to keep itself currently informed of the adherence of local agencies to the State plan provisions" and must "[t]ake corrective action to ensure their adherence." 42 C.F.R. § 435.903. The State and the City, along with the HRA, are required to coordinate among themselves, with each other, and with related agencies and programs at the state and city levels, to ensure that effective outreach, informing, screening, diagnosis and treatment are provided to all EPSDT-eligible children. See HFCA Manual § 5230; see also N.Y. Comp. Codes R. Regs. tit. 18, § 508.9.
B.
The following facts are not in dispute, except as otherwise indicated. The plaintiffs are all allegedly homeless children who suffer from asthma or symptoms indicating asthma. (Compl. ¶¶ 57, 68, 80, 90, 100, 109.) Asthma is a chronic inflammatory disease of the pulmonary system. (Pls.' 56.1 St. ¶ 14; DOH 56.1 Counter-St. ¶ 14; City's 56.1 Counter-St. ¶ 14.) Medicaid claim detail reports generated by DOH indicate that each of the individual plaintiffs has received Medicaid-reimbursed medical services. (Siller Aff. Exs. M-R.) The plaintiffs, however, allege that the have not been adequately informed of the EPSDT program and that they have not been provided adequate screening, diagnosis and treatment services from the City and/or DOH.
Currently, DOH primarily plays the role of facilitating payment to Medicaid providers, although DOH also performs an oversight role concerning the delivery of Medicaid services statewide, including EPSDT services. (DOH's 56.1 St. ¶ 18; Pls.' 56.1 Counter-St. ¶ 2; Affidavit of Judith A. Lenihan sworn to January 10, 2001 ("Lenihan Aff."), ¶ 12.) The DOH Medicaid Management Information Systems (MMIS) Manual has an insert called "Child/Teen Health Program," which contains detailed guidelines regarding what services should be provided to children when they are seen for EPSDT examinations. (Lenihan Aff. ¶ 13 Ex. A.) DOH also prepared a brochure for local districts to provide to Medicaid-eligible families, which included information as to why a child should receive preventative care, how such care can be accessed, and periodicity schedules for treatment. (Lenihan Aff. ¶ 13 Ex. B.) Although asthma is not expressly mentioned in the EPSDT program, asthma treatment is furnished by Medicaid providers in New York State and reimbursed by the New York State Medicaid program. (Lenihan Aff. ¶ 15.) Computer Science Corporation, DOH's fiscal intermediary, gives Medicaid providers the MMIS Manual insert when the providers enroll in the Medicaid program and sends updates. (Lenihan Aff. ¶ 16.) DOH sends to HCFA an annual report describing the EPSDT services paid for by the New York State Medicaid program and for which federal reimbursement is sought. (Lenihan Aff. ¶ 18.)
DOH also allegedly reviews the C/THP outreach packet that the City sends to Medicaid-eligible families, which contains information such as participating medical providers and how families can access medical providers and obtain assistance in getting medical appointments. (Lenihan Aff. ¶ 22 Ex. E.) The City provides the C/THP outreach packet to Medicaid applicants when an applicant applies for Medicaid and 60 days after the applicant becomes Medicaid-eligible. (DOH's 56.1 St. ¶ 36; Pl.'s 56.1 St. ¶¶ 74-75; City 56.1 Counter-St. ¶¶ 74-75; State 56.1 Counter St. 74-75.) DOH alleges that the City provides the C/THP outreach packet to Medicaid-eligible families annually, although the plaintiffs dispute this. (DOH's 56.1 St. ¶ 36; Pls.' 56.1 Counter-St. ¶ 3.) DOH reviews data reflecting paid claims by Medicaid providers and transmits this data on a HCFA 416 Report. (Lenihan Aff. ¶ 23.) DOH alleges that the HFCA 416 form indicates how many children in a county are eligible for EPSDT services and how many EPSDT examinations eligible children receive. (Lenihan Aff. ¶ 24.) DOH asserts that it can determine from these numbers the rate of participation in the C/THP among eligible children and that for 1999, New York State's overall EPSDT participation rate was 91%, representing children who received at least one initial periodic screening in 1999. (Lenihan Aff. ¶¶ 24-25 Ex. F.) DOH also alleges that the New York City overall EPSDT participation rates for 1997, 1998 and 1999 were 90%, 89% and 89%, respectively. (Lenihan Aff. ¶ 26 I.) The plaintiffs allege that DOH's data collection system does not determine whether children enrolled in Medicaid managed care plans actually received a C/THP exam, but instead, report that children enrolled in Medicaid received an exam simply because they are enrolled in the plan rendering the data collection system flawed. (Pls.' 56.1 So. 94-96.)
The plaintiffs filed this action alleging that, as a result of certain policies and practices, the City and DOH are failing to meet their EPSDT obligations under the Medicaid Act. Specifically, they allege that the City fails (1) to inform children and their families of the availability of EPSDT services; (2) to screen for asthma; (3) to provide homeless children with diagnosis and necessary medical treatment services for asthma; (4) to provide homeless children with the required support services including assistance for transportation to and scheduling of medical appointments; and (5) to coordinate with other agencies and programs to ensure that homeless children receive all of the above services. (Compl. ¶ 53.) The plaintiffs also contend that DOH is failing to meet its supervisory obligations under the Medicaid Act to ensure that the City is adequately informing homeless families of the existence of EPSDT and providing homeless children with required EPSDT services. (Compl. ¶ 55.) The plaintiffs have sued the defendants under 42 U.S.C. § 1983 based on alleged violations of various provisions of the Medicaid Act and regulations implementing the Act.
As already discussed, the plaintiffs have withdrawn the first three claims asserted in the Complaint that were brought directly under the Medicaid Act. The plaintiffs' Section 1983 claims incorporate the allegations contained in the first three claims. (Compl. ¶ 149.)
III.
The City first moves to dismiss the claims brought against it pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction. The City argues that the statutory mandate of the Medicaid Act is directed exclusively to the states and that the plaintiffs' claims against the City are really based upon the New York State C/THP regulations and do not require the resolution of a question of federal law.To establish a claim under 42 U.S.C. § 1983, the plaintiffs "must establish that: (i) the conduct complained of was committed by a person acting under color of state law; and (ii) that the conduct deprived [them] of rights, privileges or immunities secured by the Constitution or laws of the United States." Oberlander v. Perales, 740 F.2d 116, 118 (2d Cir. 1984) (quotations and citation omitted). There is no question in this case that the defendants were acting under color of state law. The only issue on the jurisdictional question is therefore whether the plaintiffs have sufficiently alleged that the defendants, and particularly the City, deprived them of a right secured by federal law. The plaintiffs have plainly alleged that the defendants violated the requirements of the Medicaid Act and regulations, but the City argues that these allegations really amount to nothing more than allegations that the defendants have violated the terms of the state plan.
The Court of Appeals for the Second Circuit has repeatedly emphasized that "the failure of a State authority to comply with State regulations cannot alone give rise to a § 1983 cause of action." Concourse Rehabilitation Nursing Ctr. Inc. v. DeBuono ("Concourse II"), 179 F.3d 38, 43 (2d Cir. 1999); accord Concourse Rehabilitation Nursing Ctr. Inc. v. DeBuono ("Concourse I"), 150 F.3d 185, 189 (2d Cir. 1998);Kostok v. Thomas, 105 F.3d 65, 68 (2d Cir. 1997). The fact that federal law requires a state participating in the Medicaid program to adopt a Medicaid plan does not transform state Medicaid regulations or state plan provisions into federal law. See Concourse II, 179 F.3d at 44; Oberlander v. Perales, 740 F.2d 116, 119 (2d Cir. 1984). Rather, "[t]o state a federal cause of action, a plaintiff must allege a `specific conflict between a state plan or practice on the one hand and a federal mandate on the other.'" Concourse II, 179 F.3d at 43-44 (quoting Oberlander, 740 F.2d at 119); see also Concourse I, 150 F.3d at 189; Kostok, 105 F.3d at 68. As the Court of Appeals explained: "Absent a clear expression of congressional intent, we will not infer a legislative decision to convert all claims of administrative error in applying state regulations into questions of federal law." Concourse I, 150 F.3d at 189.
In this case the plaintiffs have clearly alleged that the City's policies and practices with respect to its provision of EPSDT services to homeless children suffering from asthma violates the federal Medicaid statute itself and thus, taking these allegations as true, the plaintiffs have stated a federal cause of action. This is a case where the plaintiffs have not alleged simply isolated incidents of failing to follow the State plan, but rather policies and practices by the City that violate the Medicaid Act and regulations. Specifically, the Complaint alleges that the City, "acting pursuant to official policy and practice" has violated the Medicaid Act and its implementing regulations and guidelines by: (1) failing to adequately inform homeless children and their families of the availability of EPSDT services (Compl. ¶¶ 131, 151); and (2) failing to provide early and periodic screening, diagnosis and treatment services to homeless children. (Compl. ¶¶ 142, 151.) Thus, the plaintiffs allege a conflict between the City's administration of New York State's Medicaid plan, in particular the C/THP program, and the Medicaid Act, and therefore states a federal claim.
Moreover, the City has been entrusted with administering the provisions of the Medicaid Act requiring EPSDT services and it is required under 42 U.S.C. § 1393a(a)(1) to provide those services in accordance with the Medicaid Act. See 42 U.S.C. § 1393a(a)(1) (providing that a state plan, if administered, by a political subdivision of the State, is "mandatory upon them"). The fact that the City's conduct may also violate state law and regulations does not preclude federal jurisdiction. Although not specifically addressing a jurisdictional argument similar to the City's argument in this case, courts have routinely exercised jurisdiction over Section 1983 claims brought by Medicaid recipients against the City and other municipalities. See, e.g., Rodriguez v. DeBuono, 44 F. Supp.2d 601, 604 (S.D.N.Y.), rev'd on other grounds, 197 F.3d 611 (2d Cir. 1999), cert. denied, 21 S.Ct. 156 (2000); Reynolds v. Giuliani ("Reynolds I"), 35 F. Supp.2d 331, 341-348 (S.D.N Y 1999);Kessler v. Blum, 591 F. Supp. 1013, 1015 (S.D.N.Y. 1984); see also Stanton v. Bond, 504 F.2d 1246, 1247-51 (7th Cir. 1974). Accordingly, the Court has jurisdiction over the plaintiffs' Section 1983 claims against the City.
IV.
Both the City and DOH move to dismiss the plaintiffs' remaining claim under 42 U.S.C. § 1983 pursuant to Fed.R.Civ.P. 12(b)(6), arguing that the various provisions of the Medicaid Act and the regulations implementing the Medicaid Act relied upon by the plaintiffs in bringing their claims do not provide the plaintiffs a private right of action under Section 1983 to enforce those provisions and regulations.
Section 1983 is an available remedy for violations of federal statutory rights. See Maine v. Thiboutot, 448 U.S. 1, 4-8 (1980). "In order to seek redress through § 1983, however, a plaintiff must assert the violation of a federal right, and not merely a violation of federal law."Blessing v. Freestone, 520 U.S. 329, 340 (1997).
In order to establish that a particular statutory provision gives rise to a federal right enforceable under Section 1983, a plaintiff must demonstrate that: (1) the provision in question was "intended to benefit" the plaintiffs seeking to enforce it; (2) the provision imposes a "binding obligation on the governmental unit," rather than "merely a congressional preference for a certain kind of conduct;" and (3) the right assertedly protected by the provision is not so "vague and amorphous" as to be "beyond the competence of the judiciary to enforce."Wilder v. Virginia Hospital Ass'n, 496 U.S. 498, 509 (1990) (citations omitted); see also Blessing, 520 U.S. at 340-41; Rodriguez v. DeBuono, 175 F.3d 227, 233 (2d Cir. 1999). "Even if a plaintiff demonstrates that a federal statute creates an individual right, there is only a rebuttable presumption that the right is enforceable under [Section] 1983."Blessing, 520 U.S. at 341. The burden then shifts to the defendants to demonstrate that Congress has foreclosed a Section 1983 remedy, either by express statements in the underlying statute, or by creating a comprehensive enforcement scheme that is incompatible with individual enforcement under Section 1983. See id. (citing Livadas v. Bradshaw, 512 U.S. 107, 133 (1994)). "It is incumbent upon [the plaintiffs] to identify with particularity the rights they claim" under a specific statutory provision. Id. at 342.
In Suter v. Artist M., 503 U.S. 347 (1992), the Supreme Court held that no private right of action existed to enforce a provision of the Adoption Assistance Act, 42 U.S.C. § 671(a)(15), without setting forth the test developed in Wilder. Suter, 503 U.S. at 364. The Court found that Section 671(a)(15) was too vague and amorphous to create the private remedy sought by the plaintiffs. See id. at 362-64. DOH argues that this holding imposed an additional inquiry upon the standards established in Wilder. This additional inquiry would require that when Congress acts pursuant to its spending power, any condition imposed on federal monies must be set forth "unambiguously." Id. at 355-56. A determination of what is a "mandatory" condition would require an examination of "exactly what is required of states" by the statutory provision sought to be enforced. See id. at 358.
In 1994, in response to the Supreme Court's decision in Suter, Congress amended the Social Security Act to state:
In an action brought to enforce a provision of this chapter, such provision is not to be deemed unenforceable because of its inclusion in a section of this chapter requiring a State plan or specifying the required contents of a State plan. This section is not intended to limit or expand the grounds for determining the availability of private actions to enforce State plan requirements other than by overturning any such grounds applied in [Suter], but not applied in prior Supreme Court decisions respecting such enforceability; provided, however, that this section is not intended to alter the holding in [Suter] that section 671(a)(15) of this title is not enforceable in a private right of action.42 U.S.C. § 1320a-2. In Blessing, decided in 1997, the Supreme Court restated and relied on the Wilder test. See Blessing, 520 U.S. at 340-41.
While the Court of Appeals for the Second Circuit has not yet addressed the issue, several lower courts within this Circuit have found that Congress expressed its intent to require courts to apply pre-Suter case law to determine the private enforceability of Social Security Act provisions other than Section 671(a)(15). See, e.g., Rodriguez, 44 F. Supp.2d at 609-10; McMahon v. Tompkins County Dep't of Soc. Serv., No. 95 Civ. 1134, 1998 WL 187421 (N.D.N.Y. Apr. 14, 1998); Vogelsang v. County of Cayuga, No. 95 Civ. 1123, 1998 WL 146293 (N.D.N.Y. Mar. 25, 1998);Marisol A. v. Giuliani, 929 F. Supp. 662 (S.D.N Y 1996), aff'd on other grounds, 126 F.3d 372 (2d Cir. 1997); see also Visiting Nurse Ass'n. v. Bullen, 93 F.3d 997, 1003 n. 5 (1st Cir. 1996) (assuming that Congress intended to resurrect Wilder three-part test with no Suter overlay). But see Harris v. James, 127 F.3d 993, 1002-03 (11th Cir. 1997) (rejecting argument that court must `rewind the clock' to determine federal rights question only according to pre-Suter precedents). This Court agrees with the other district courts in this Circuit and with the Court of Appeals for the First Circuit that Congress intended to overrule any additionalSuter inquiry. In any event, it is the Wilder test, relied upon in Blessing, that provides the controlling inquiry.
A.
The plaintiffs first seek under Section 1983 to enforce rights under the EPSDT provisions of the Medicaid Act, specifically, 42 U.S.C. § 1396a(a)(10), 1396a(a)(43)(A), (B) and (C), 1396d(a)(4)(B), and 1396d(r) (the "EPSDT provisions"), and their implementing regulations, 42 C.F.R. § 441.56(a) and (b), 441.60(a), 441.61 and 441.62.
The Court of Appeals for the Second Circuit has noted that the appellate courts are divided on the question of whether a federal regulation, standing alone, is sufficient to create a federal right necessary for a Section 1983 suit, and has itself declined to answer that question. See King v. Town of Hempstead, 161 F.3d 112, 115 (2d Cir. 1998); see also Rodriguez v. City of New York, 197 F.3d 611, 617 (2d Cir. 1999) (assuming arguendo that a claim based upon two Medicaid Act regulations was cognizable under Section 1983). District courts in this circuit are also divided on whether regulations can create enforceable rights under Section 1983. Compare Kessler v. Town of Niskayuna, Nos. 91 Civ. 464, 91 Civ. 104, 1991 WL 278788, at *2 (N.D.N Y 1991) (a regulation can create such a right), with Graus v. Kaladjian, 2 F. Supp.2d 540, 544 (S.D.N.Y. 1998) (regulations do not themselves create enforceable rights under Section 1983). Courts may, however, plainly consider implementing regulations in determining whether a statute creates a federal right.See, e.g., Blessing, 520 U.S. at 343-45 (considering regulations implementing Title IV-D of Social Security Act in analyzing whether the Act created a federal right); Suter, 503 U.S. at 361-62 (considering regulations promulgated by Secretary of Health and Human Services implementing Adoption Assistance and Child Welfare Act of 1980 in determining whether a federal right existed); Wright v. Roanoke Redev. and Hous. Auth., 479 U.S. 418, 431 (1987) (considering HUD regulations in determining whether federal right existed); Roberson v. Giuliani, 99 Civ. 10900, 2000 WL 760300, at *10-11 n. 14 (S.D.N.Y. Jun. 12, 2000) (considering implementing regulations in determining whether the Food Stamp Act created a federal right).
While the plaintiffs cite various provisions of the New York State law implementing the New York Medicaid program and provisions of the HCFA Manual, the plaintiffs' claims are claims under Section 1983 and it is federal law that provides the federal claims under Section 1983.
Under the Wilder/Blessing framework, it is clear that the EPSDT provisions provide the plaintiffs with an enforceable right under Section 1983. First, it is well settled that Medicaid-eligible children under the age of twenty-one, such as the plaintiffs, are the intended beneficiaries of the EPSDT provisions. See, e.g., Miller v. Whitburn, 10 F.3d 1315, 1319 (7th Cir. 1993); Frew v. Gilbert, 109 F.2d 579, 662 (E.D.Texas 2000); Salazar v. District of Columbia, 954 F. Supp. 278, 324 n. 92 (D.D.C. 1996); Wellington v. District of Columbia, 851 F. Supp. 1, 6 (D.D.C. 1994); New York City Coalition to End Lead Poisoning v. Giuliani, 2000 WL 33137018, at *3 (N.Y.Sup.Ct. Nov. 3, 2000). The plain language of the statutory provisions upon which the plaintiffs rely indicates that Congress intended through the EPSDT provisions in the Medicaid Act to benefit eligible Medicaid recipients under the age of twenty-one through increased healthcare services. See 42 U.S.C. § 1396a(a)(10)(A), 1396a(a)(43) 1396d(a)(4)(B).
Both the City and DOH argue that the plaintiffs in this case, all Medicaid-eligible children with asthma who reside in or are applying to reside in New York City homeless shelters, are not the intended beneficiaries of the EPSDT provisions because the EPSDT provisions and the legislative history do not make any reference to asthma or homeless children in particular or evidence any specific intent to benefit homeless children or children with asthma. This argument misses the mark and is without merit. The plaintiffs are among the intended beneficiaries of the EPSDT provisions, not because the are homeless or because the have asthma, but because they are Medicaid-eligible children under the age of twenty-one. There is no requirement that an illness or condition must be specifically enumerated in the EPSDT statutes in order to be covered by a state's plan. Indeed, the Medicaid Act specifically provides that a participating state's EPSDT program must provide "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). Therefore, all Medicaid-eligible children under the age of twenty-one, including those with asthma or who are homeless, are the intended beneficiaries of EPSDT services.
Second, the EPSDT provisions of the Medicaid Act impose a binding obligation on DOH and the City and do not merely express a Congressional preference. The language of the relevant EPSDT statutes upon which the plaintiffs rely is clearly mandatory, rather than precatory. See Blessing, 520 U.S. at 341. In 42 U.S.C. § 1396a(a)(10)(A) and 1396d(a)(4)(B), Congress has specifically required that state Medicaid plans provide for medical assistance, including EPSDT services. In addition, 42 U.S.C. § 1396a(a)(43) provides, in pertinent part, that "[a] State plan for medical assistance must . . . (43) provide for (A) informing all persons in the State who are under the age of [twenty-one] . . . of the availability of [EPSDT] services . . ., (B) providing . . . such screening services in all cases where they are requested . . ., [and] (C) arranging for . . . corrective treatment the need for which is disclosed by such child health screening services. . . ." 42 U.S.C. § 1396a(a)(43)(A), (B) (C). 42 U.S.C. § 1396d(r) sets forth in detail the minimum services that are to be included as part of EPSDT which must be provided under a State plan. See 42 U.S.C. § 1396d(r). These EPSDT provisions of the Medicaid Act are sufficiently mandatory to support a Section 1983 claim. See, e.g., Miller, 10 F.3d at 1319 (finding that 42 U.S.C. § 1396a(a)(10)(A) and 1396d(a)(4)(B) impose a binding obligation upon the state agency designated to administer Wisconsin's Medicaid plan); Pittman v. Secretary, Florida Department of Health Rehabilitative Servs., 998 F.2d 887, 889 (11th Cir. 1993) (noting that the language of 42 U.S.C. § 1396d(r) requires coverage for all medically necessary treatment for eligible recipients under the age of twenty-one); Stanton, 504 F.2d at 1250-51 (concluding that the EPSDT provisions are mandatory and unambiguous); see also Virginia Hospital Assoc. v. Baliles, 868 F.2d 653, 658 (4th Cir. 1988) (reasoning that all of 42 U.S.C. § 1396a(a) is obligatory and not expressly conditional);Wellington, 851 F. Supp. at 6. The unambiguous statutory language of the Medicaid Act's relevant EPSDT provisions satisfies the second part of the Wilder/Blessing test.
The City argues that the Medicaid Act and its regulations are directed solely to the states and do not impose any obligations upon the City. This argument is similar to the City's argument that the Court lacks subject matter jurisdiction and is without merit. The Medicaid Act provides for the involvement of political subdivisions of a participating state in administering a participating state's plan and Congress has instructed that the specific requirements that must be set forth in a participating state's plan under the Medicaid Act, including the provision of EPSDT services, are binding on these political subdivisions. See, e.g., 42 U.S.C. § 1396a(a)(1). District Courts in this Circuit have held that where a participating state has delegated responsibility for the administration of a federally mandated program such as Medicaid — as New York State has done — that mandate is binding on both state and local authorities. See Reynolds v. Giuliani ("Reynolds II"), 118 F. Supp.2d 352, 385 (S.D.N.Y. 2000) (finding that where the State has delegated the administration of statutory obligations mandated by the Food Stamp Act and the Medicaid Act "the duty to comply with federal statutory requirements are shared jointly by the State and City defendants"); see also Marisol A. v. Giuliani, 929 F. Supp. 662, 680-84 (S.D.N.Y. 1996) (sustaining claims against New York City under the Adoption Assistance Act and Child Abuse Prevention and Treatment Act).
Evelyn V v. Kings County Hosp. Ctr., 819 F. Supp. 183 (E.D.N.Y. 1993), upon which the City relies, does not support its position that the EPSDT provisions of the Medicaid Act do not impose a binding obligation upon the City. In that case, a suit by Medicaid-eligible patients who had sought hospital treatment, the court noted that nothing in 42 U.S.C. "§ 1396a(a)(9) mandates any action by the City defendants." Evelyn V, 819 F. Supp. at 195. Section 1396a(a)(9) requires that a participating state's Medicaid plan "provide . . . that the State health agency . . . shall be responsible for establishing and maintaining health standards for private or public institutions in which recipients of medical assistance under the plan may receive care or services." The plain language of Section 1396a(a)(9) requires action by a particular New York State agency and, unlike the EPSDT provisions, imposes an obligation that cannot be delegated or shared with a political subdivision, such as the City. Evelyn V does not stand for the proposition that none of the requirements of the Medicaid Act can impose binding obligations on political subdivisions. In this case, the EPSDT provisions at issue clearly impose binding obligations that can be delegated, and in the case of New York State, have been delegated to the City and are binding upon it.
Third, the EPSDT provisions of the Medicaid Act are not so "vague and amorphous" as to make their enforcement outside the competency of the judiciary. Rather, the plaintiffs seek to enforce specific EPSDT provisions guaranteeing the provision of specific medical services to Medicaid-eligible children under the age of twenty-one and their enforcement is not outside the competency of the courts. See 42 U.S.C. § 1396a(a)(10), 1396a(a)(43)(A), (B) and (C), 1396d(a)(4)(B), 1396d(r). Moreover, the well-reasoned decisions of numerous other courts have permitted private causes of action under Section 1983 to enforce the EPSDT provisions of the Medicaid Act relied upon by the plaintiffs. See, e.g., Miller, 10 F.3d at 1319; Mitchell v. Johnston, 701 F.2d 337, 341-42 (5th Cir. 1983),; Frew v. Gilbert, 109 F.2d 579, 660-65 (E.D. Texas 2000); Wellington, 851 F. Supp. at 6-7;New York City Coalition, 2000 WL 33137018, at *3 Thus, it is clear that the Medicaid Act's EPSDT provisions are sufficiently specific to create an enforceable right.
The defendants rely heavily on Charlie H. v. Whitman, 83 F. Supp.2d 476 (D. N.J. 2000), for the proposition that the EPSDT provisions are too vague and amorphous to be enforceable under Blessing.Charlie H. is, however, not binding on this Court and is at odds with the reasoning of every other court that has considered the enforceability of EPSDT provisions. The Charlie H. court analogized the EPSDT provision to the child support provisions of Title IV-D of the Social Security Act that the Supreme Court in Blessing, declined to find created a general right to be substantially enforced. However, in Blessing, the Supreme Court found that the plaintiffs had failed to "identify with particularity the rights they claimed," and that it was "impossible to determine whether Title IV-D, as an undifferentiated whole, gives rise to undefined `rights.'" Blessing, 520 U.S. at 342. The Supreme Court explicitly did not foreclose the possibility that "some provisions of Title IV-D give rise to individual rights." Id. at 345. In this case, the plaintiffs pointed to specific provisions within the Medicaid Act that they claim to have been violated. Those provisions are specific and sufficiently clear to be enforced.
Accordingly, there is a rebuttable presumption that a private right of action exists to enforce the rights created by the EPSDT provisions through an action under Section 1983. Furthermore, Congress has taken no explicit or implicit action — and the defendants have not pointed to any — to foreclose a remedy under Section 1983. See Wilder, 496 U.S. at 521 (finding that the Medicaid Act does not provide for private or administrative enforcement comparable to those cases where the Court has found a remedial scheme established by Congress sufficient to displace the remedy provided by Section 1983); see also Blessing, 520 U.S. at 347-48 (reaffirming the conclusion in Wilder that the ability of the Secretary of HHS to reject State Medicaid plans or to withhold federal funding, although accompanied by limited state grievance procedures for individuals, was not sufficient to preclude a private right of action under Section 1983); Wood v. Tompkins, 33 F.3d 600, 611-12 (6th Cir. 1994).
B.
The plaintiffs also seek to enforce rights under 42 U.S.C. § 1396a(a)(5) and regulations 42 C.F.R. § 431.10 and 435.903.
42 U.S.C. § 1396a(a)(5) provides that a participating State's plan must "provide for the establishment or designation of a single State agency to administer or supervise the administration of the plan." 42 U.S.C. § 1396a(a)(5). 42 C.F.R. § 431.10, which implements Section 1396a(a)(5) provides that a state plan must "[s]pecify a single State agency established or designated to administer or supervise the administration of the plan." 42 C.F.R. § 431.10(b)(1). 42 C.F.C. § 431.10 also provides that that the agency must not delegate its authority to "[e]xercise administrative discretion in the administration or supervision of the plan, or . . . [i]ssue policies, rules, and regulations on program matters" and that if other State or local agencies perform services for the designated Medicaid agency, those other State or local agencies "must not have the authority to change or disprove any administrative decision of [the Medicaid] agency, or otherwise substitute their judgment for that of the Medicaid agency with respect to the application of policies, rules, and regulations issued by the Medicaid agency." 42 C.F.C. § 431.10. Many courts have concluded that, under aWilder/Blessing analysis, Section 1396a(a)(5), and its implementing regulation, is not intended for the benefit of private plaintiffs. See, e.g., Graus v. Kaladjian, 2 F. Supp.2d 540, 544 (S.D.N.Y. 1998); Ralabate v. Wing, No. 93 Civ. 35, 1996 WL 377204, at *3 n. 28 (W.D.N.Y. Jun. 27, 1996); Sobky v. Smoley, 855 F. Supp. 1123, 1144-45 (E.D. Cal. 1994). 42 U.S.C. § 1396a(a)(5) and its implementing regulation appear, on their face, to be directed towards the efficient and uniform operation of a participating state's Medicaid program, rather than providing a direct benefit to Medicaid-eligible individuals. See, e.g., Sobky, 855 F. Supp. at 1144-45. In addition, as the Sobky court thoroughly discusses, the legislative history of 42 U.S.C. § 1396a(a)(5) supports the conclusion that this statutory section was not intended to benefit the plaintiffs. See Sobky, 855 F. Supp. at 1145-46 (analyzing legislative history of 42 U.S.C. § 1396a(a)(5)). Thus, 42 U.S.C. § 1396a(a)(5) and its implementing regulation, 42 C.F.R. § 431.10, do not provide the plaintiffs a right enforceable under Section 1983.
42 C.F.R. § 435.903 provides that a participating state's Medicaid agency must:
(a) Have methods to keep itself currently informed of the hearings and local agencies to the State plan provisions in the agency's procedures for determining eligibility; and
(b) Take corrective action to ensure their adherence.
42 C.F.R. § 435.903. The Court of Appeals for the Second Circuit has noted that the appellate courts are divided on the question of whether an administrative regulation, standing alone, can create an enforceable right under Section 1983 and has specifically declined to answer that question. See, e.g., King v. Town of Hempstead, 161 F.3d 112, 115 (2d Cir. 1998); see generally n. 7, supra.
In this case, it is also not necessary to decide the issue, because, even if an administrative regulation could, standing alone, provide the basis for an enforceable right under Section 1983, under theWilder/Blessing analysis, 42 C.F.R. § 435.903, does not create a federal right. First, the regulation is not intended to benefit the plaintiffs. 42 C.F.R. § 435.900, the regulation that sets forth the scope of the subpart of the Code of Federal Regulations containing 42 C.F.R. § 435.903, states "[t]his subpart sets forth requirements for processing applications, determining eligibility, and furnishing Medicaid." Thus, 42 C.F.R. § 435.903, like 42 C.F.R. § 435.10, appears to be a regulation "direct[ed] to the efficient and uniform operation of the Medicaid program, rather than to the provision of a direct or immediate benefit to Medicaid recipients or providers." Sobky, 855 F. Supp. at 145. In addition, the regulation is amorphous and beyond the competency of the judiciary to enforce and therefore it does not create a federal right enforceable by the plaintiffs under Section 1983.
In sum, the plaintiffs have a private right of action under Section 1983 to enforce the EPSDT provisions of the Medicaid Act and the defendants' motions to dismiss the Section 1983 claims based on these provisions is denied. To the extent that the plaintiffs allege a Section 1983 claim against DOH relying on 42 U.S.C. § 1396a(a)(5), 42 C.F.R. § 431.10 and 435.903, the plaintiffs do not have an enforceable right.
VI.
DOH also moves for summary judgment pursuant to Fed.R.Civ.P. 56 on the grounds that the plaintiffs have not shown that they have been denied EPSDT services to which they are entitled and that, in any event, DOH is allegedly not liable for any deficiencies by the City in providing such services.
A.
DOH first argues that the individual plaintiffs' own circumstances fail to demonstrate violations of the EPSDT program by the City. DOH asserts that the EPSDT statutes, regulations and policy manuals do not require specific services for asthma nor do they impose any special obligation for the delivery of EPSDT services to homeless children. As discussed above, the EPSDT provisions of the Medicaid Act require that a state provide "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). This includes providing EPSDT services for homeless Medicaid-eligible children with asthma under the age of twenty-one.
DOH also asserts that the deposition testimony from the mothers of the individual plaintiffs establishes that the plaintiffs' mothers are aware of their children's asthma, are familiar with asthma and its treatment and are getting effective asthma treatment for their children, thus indicating that the individual plaintiffs were receiving the benefits to which they allege they are entitled under the EPSDT provisions of the Medicaid Act. The fact that the plaintiffs' mothers are aware of their children's asthma and that the children have now received treatment for that asthma, however, does not lead to the conclusion that the EPSDT provisions have not been violated. The plaintiffs point to evidence that although some of the plaintiffs received medical services for their asthma, those services were not provided pursuant to the EPSDT program required by the Medicaid Act and its implementing regulations. In fact, the plaintiffs allege that much of the asthma treatment received by the plaintiffs was provided to them after the institution of the pending lawsuit and has been arranged by the attorneys in the case rather than through New York State's EPSDT program. Thus, there are genuine issues of fact with respect to whether the plaintiffs have been provided adequate EPSDT services under the Medicaid Act.
B.
DOH next argues it is not liable for the City's alleged deficiencies in providing EPSDT services. DOH essentially asserts that its delegation of the administration of the state's Medicaid plan to the local social services districts, including the City's HRA, relieves it of its responsibility to ensure that the EPSDT provisions of the Medicaid Act are enforced. This argument is without merit. While a participating state may delegate certain administrative responsibilities to political subdivisions, including the administration of EPSDT services, Congress has placed the ultimate responsibility to administer the Medicaid Act on the State, and that duty is non-delegable. See 42 U.S.C. § 1396(a);Reynolds II, 118 F. Supp.2d at 385-86 (concluding that a state that chooses to delegate administration of the Medicaid program retains duty to ensure compliance with the Medicaid Act's requirements); cf. Robertson v. Jackson, 972 F.2d 529, 533 (9th Cir. 1992) (holding state responsible for ensuring local agencies compliance with the Food Stamp Act where the state chose to delegate administrative responsibilities of its food stamp program to local agencies); Woods v. United States, 724 F.2d 1444, 1447 (9th Cir. 1984) ("While the state may choose to delegate some administrative responsibilities, the ultimate responsibility for operation of the food stamp plan remain[s] with the state.") (quotation omitted). Thus, although 42 U.S.C. § 1396a(a)(5) does not provide the plaintiffs with an enforceable right under Section 1983, the DOH, as the agency responsible for New York State's Medicaid program is accountable for violations of the substantive EPSDT provisions, which do create enforceable rights.
DOH relies on Woodruff v. Lavine, 417 F. Supp. 824 (S.D.N Y 1976) (Weinfeld, J.), in which this court rejected a challenge to the City and State's administration of the EPSDT program in New York City, then known as the Child Health Assurance Program. In Woodruff, after a trial, the court found that the plaintiffs had failed to demonstrate that the federal statute and regulations were violated. Woodruff, 417 F. Supp. at 826. DOH argues that its oversight mechanism is similar today to the mechanism discussed in Woodruff. Woodruff, however, was decided twenty-five years ago after a trial on the merits. Since that time, the EPSDT program has undergone changes and is now administered by a different state agency. Thus, Woodruff does not support DOH's motion for summary judgment.
In sum, the plaintiffs have come forward with sufficient evidence to create genuine issues of material fact as to whether DOH's current practices and policies with respect to the provision of EPSDT services deprive the plaintiffs of their rights under the Medicaid Act which are enforceable under Section 1983. Therefore, DOH's motion for summary judgment is denied.
VII.
The plaintiffs have also moved for summary judgment against the defendants pursuant to Fed.R.Civ. 56. The plaintiffs argue that the evidence establishes as a matter of law that the defendants failed (1) to adequately inform the plaintiffs about EPSDT services; (2) to provide adequate screening, diagnosis, and treatment and failed to track the provision of these services; (3) to provide scheduling and transportation assistance; and (4) to coordinate to provide EPSDT services. Viewing the evidence in the light most favorable to the defendants, there exist numerous genuine issues of material fact as to whether the State and City are adequately complying with the EPSDT provisions of the Medicaid Act and with respect to the scope of any alleged violations, rendering summary judgment inappropriate. For example, there are issues of fact as to whether DOH's data collection system accurately reflects the EPSDT participation rate and whether the actions the City takes to inform Medicaid-eligible children and their families about EPSDT services is adequate under the Medicaid Act and its implementing regulations.
Moreover, with respect to DOH, because New York State is the real party in interest in an official-capacity suit such as this, a State's "policy or custom must have played a part in the violation of federal law."Kentucky v. Graham, 472 U.S. 159, 166 (1985) (quotation omitted); see also Hafer v. Melo, 503 U.S. 21, 25 (1991); Nix v. Norman, 879 F.2d 429, 433 (8th Cir. 1989). Similarly, to establish a claim under Section 1983 against a municipality, such as the City, the plaintiffs must show that a municipal custom or policy caused the violation of their federal rights.See Monell v. Department of Social Serv., 436 U.S. 658, 691 (1978). At this time, there exist genuine issues of material fact as to whether DOH's and the City's current customs and policies with respect to the provision of EPSDT services in New York City deprive the plaintiffs of their rights under the Medicaid Act. Therefore, the plaintiffs have failed to show that they are entitled to summary judgment and their motion is denied.
CONCLUSION
For the foregoing reasons:
1. DOH's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) is denied in part and granted in part.
2. The City's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) is denied.
3. The plaintiffs' First, Second and Third Claims have been withdrawn and are therefore dismissed.
4. The plaintiffs' claims against all the City Agencies and City Commissioners have been withdrawn and are therefore dismissed.
5. DOH's motion for summary judgment pursuant to Fed.R.Civ.P. 56 is denied.
6. The plaintiffs' motion for summary judgment pursuant to Fed.R.Civ.P. 56 is denied.
SO ORDERED.