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IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF GEORGIAATLANTA DIVISIONMARKETRIC HUNTERa minor child, by and through hismother and legal guardian, ThelmaLynah,Plaintiff,v. CIVIL ACTION FILENO. 1:08-CV-2930-TWTRHONDA MEDOWSin her Official Capacity asCommissioner of the GeorgiaDepartment of Community Health, etal.,Defendants.ORDERThis is an action for injunctive and declaratory relief in which the Plaintiff claims that the Defendants are violating his rights under the Early Periodic ScreeningDiagnosis and Treatment (“EPSDT”) provisions of the Medicaid Act, 42 U.S.C. §§1396a(a)(43) and 1396d(r). It is before the Court on the Defendants’ Motions toDismiss [Docs. 22, 26], which are DENIED.I. BackgroundPlaintiff Marketric Hunter is a seven-year-old Medicaid beneficiary. (First Am.Compl. ¶ 5.) He lives with his adoptive mother, Thelma Lynah, in Savannah,

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Georgia. (First Am. Compl. ¶ 4.) He experienced brain damage as a toddler and nowsuffers from a number of neurological conditions including static encephalopathy,cerebral palsy, and seizure disorders. (First Am. Compl. ¶ 37.) He participates in theGeorgia Pediatric Program (“GAPP”), a subprogram of the Georgia Medicaid programthrough which eligible children receive in-home private duty skilled nursing services. Defendant Rhonda Medows is the Commissioner of Georgia’s Department of Community Health (“DCH”), which administers the Medicaid program in Georgia.(First Am. Compl. ¶ 6.) Defendant Georgia Medical Care Foundation, Inc. (“GMCF”)is a non-profit corporation that, through a contractual relationship with DCH, reviewsand decides all requests for private duty skilled nursing services made on behalf of Medicaid-eligible children under 21 in Georgia. (First Am. Compl. ¶¶ 9-11.)Hunter’s treating physicians have prescribed in-home private duty skillednursing hours for the past five years. (First Am. Compl. ¶ 43.) According to thecomplaint, Hunter’s allotted nursing hours have been consistently reduced inaccordance with GAPP policies. (First Am. Compl. ¶ 47.) Hunter alleges that GMCFfirst capped his hours at 84 hours per week and then reduced his hours to 70 hours perweek. (First Am. Compl. ¶ 48.) In May 2008, GMCF notified Lynah that it plannedto further reduce Hunter’s nursing hours to 63 hours per week. (First Am. Compl. ¶

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49.) Hunter also alleges that GMCF refused to approve his physician’s request for anurse to travel in his family’s vehicle. (First Am. Compl. ¶ 61.)In August 2008, Hunter’s physician requested an increase in hours inconnection with Hunter’s upcoming spinal surgery. (First Am. Compl. ¶ 50.) GMCFdid not grant the request. On September 18, Hunter sued Medows and GMCF under42 U.S.C. § 1983 alleging that the Defendants had violated his rights under theEPSDT provisions of the Medicaid Act. On September 29, this Court held a hearingon Hunter’s Motion for a Preliminary Injunction. The Court enjoined Medows fromenforcing a policy to limit medically necessary private duty skilled nursing servicesfor eligible Medicaid beneficiaries under the age of 21 using criteria not based onmedical necessity, and ordered the state to provide Hunter with the private duty skillednursing hours provided for in a schedule set forth by GMCF. (Order on Pl.’s Mot. forPrelim. Inj. at 9.) Medows and GMCF now seek to dismiss Hunter’s remaining §1983claim for injunctive relief, declaratory relief, and litigation expenses.II. Motion to Dismiss StandardA complaint should be dismissed under Rule 12(b)(6) only where it appears thatthe facts alleged fail to state a “plausible” claim for relief. Ashcroft v. Iqbal, 129 S.Ct.1937, 1949 (2009); Fed. R. Civ. P. 12(b)(6). A complaint may survive a motion todismiss for failure to state a claim, however, even if it is “improbable” that a plaintiff