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Beneficiaries also frequently bring lawsuits to address procedural barriers. For example, Medicaid beneficiaries with mental impairments have
challenged long wait times for receiving home- and community-based services as a violation of the Act’s requirement that “assistance shall be furnished with reasonable promptness to all eligible individuals.”75 Several
courts have held that the use of waitlists violates the reasonable promptness
provision.76 In at least two cases the court held that the waitlists could not
exceed ninety days.77 Similarly, cases challenging excessive delays in processing Medicaid applications are relatively common.78 Federal regulations
require states to process Medicaid applications within forty-five days or, if
the applicant has a disability, within ninety days.79 When state agencies do
not provide determinations within a reasonable time, beneficiaries can challenge the state’s inaction as a violation of the “reasonable promptness” provision, as a failure to provide the required “fair hearing,”80 and if the delays
are excessive, violations of due process rights.81
Beneficiaries also routinely challenge terminations or reductions of covered services. Most commonly, parents challenge the state agency’s deci-
75. See Perkins & Boyle, supra note 13, at 126 (noting that long-waitlists are “[o]ne of
the most common problems that Medicaid beneficiaries experience”); see also Feltz, supra
note 11, at 189 (noting waiting list lawsuits in 15 states); 42 U.S. C. A. § 1396a(a)(8) (West,
WestlawNext through P.L. 113-174) (providing that individuals who wish “to make application for medical assistance under the plan shall have the opportunity to do so, and that such
assistance shall be furnished with reasonable promptness to all eligible individuals”).
76. See Perkins & Boyle, supra note 13, at 127 n.61 (citing Sobky v. Smoley, 855 F.
Supp. 1123, 1149 (E. D. Cal. 1994); Linton v. Carney, 779 F. Supp. 925, 936 (M. D. Tenn.
1990); Clark v. Kizer, 758 F. Supp. 572, 580 (E. D. Cal. 1990); Morgan v. Cohen, 665 F.
Supp. 1164, 1177 (E. D. Pa. 1987)).
77. See id. at 127, 129 (discussing Doe v. Chiles where the court held that “Florida’s
waiting lists for intermediate care facility services violated the reasonable promptness requirement and ordered the state to establish a reasonable waiting period for ICF services not
to exceed ninety days” and discussing Boulet v. Cellucci where the Massachusetts federal
court ordered the “state Medicaid agency to provide the needed services within ninety days
of the eligibility determination.”).
78. See, e.g., Shakhnes v. Berlin, 689 F.3d 244, 251 (2d Cir. 2012) (suit to enforce
regulation requiring processing Medicaid applications within ninety days); Reynolds v. Giu-liani, 506 F.3d 183, 186 (2d Cir. 2007) (“Plaintiffs alleged that the City engaged in unlawful
conduct aimed to discourage and deter plaintiffs from obtaining benefits to which they were
entitled and that the state failed to properly oversee and supervise the City’s administration
of assistance programs.”); Ability Ctr. of Greater Toledo v. Lumpkin, 808 F. Supp. 2d 1003,
1027–28 (N. D. Ohio 2011). See supra Section II. A.2 (discussing waiting-list cases).
79. 42 C.F.R. § 435.912(c)(3) (West, WestlawNext through Oct. 30, 2014; 79 FR
80. 42 U.S. C. A. § 1396a(a)(3) (West, WestlawNext through P.L. 113-174).
81. See, e.g., Ability Ctr. of Greater Toledo v. Lumpkin, 808 F. Supp. 2d 1003, 1027–
28 (N. D. Ohio 2011) (denying motion to dismiss plaintiff’s § 1983 claim to enforce the “
reasonable promptness,” “fair hearing,” and due process claims).