The Kentucky P&A has received an excellent decision in Michelle P v. Holsinger, No. 3:02-23-JMH (E.D. Ky. Feb. 11, 2005). The case involves Medicaid and ADA challenges to a home and community based waiver waiting list.
The court finds the following Medicaid provisions are enforceable pursuant to section 1393: 42 USC 1396a(a)(10)(A) (requiring eligibility); 1396a(a)(10) (B) (requiring comparability); 1396a(a)(8) (requiring reasonable promptness of assistance); 1396n(c)(2)(C) (requiring freedom of choice of institutional or home-based services). The Court applied the federal right enforcement test as "tweaked" by Gonzaga to find that each of these provisions has an unambiguous focus on the individual and contains sufficient rights-creating language.
The Court found the defendant's motion to dismiss the ADA claim was inappropriate for a 12(b)(6) motion: "[S]ince the Plaintiffs do not seek the creation of new programs, whether the relief requested would result in a fundamental alternation 'is a matter that can be resolved only by a careful examination of the facts and circumstances….''" quoting Martin v. Taft, 222 F. Supp. 2d 940, 975 (S.D. Ohio 2002).
