Cohon v. State Dep't of Health

788 F.Supp.2d 1245

Jessica COHON, through her mother/next friend Stevie BASS, Plaintiff,

v.State of NEW MEXICO DEPARTMENT OF HEALTH, et al., Defendants.

No. CIV–08–1115 LAM/RHS.

United States District Court, D. New Mexico.

Dec. 2, 2009.

Duff H. Westbrook, Maureen A. Sanders, Sanders & Westbrook, PC, Albuquerque, NM, for Plaintiff.Paul R. Ritzma, Christopher D. Woodward, Department of Health Office of General Counsel, Ana Maria Ortiz, N.M. Aging and Long–Term Services Department, Santa Fe, NM, Jennifer L. Stone, Rodey Law Firm, R. Nelson Franse, Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, NM, for Defendants.

ORDER GRANTING STATE DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S CLAIMS FOR DECLARATORY/INJUNCTIVE RELIEF

LOURDES A. MARTÍNEZ, United States Magistrate Judge.

THIS MATTER is before the Court on Defendants' Motion to Dismiss Plaintiff's Claim for Declaratory/Injunctive Relief and Memorandum in Support ( Doc. 33 ) (hereinafter “ Motion to Dismiss ”), filed on July 10, 2009 by the New Mexico Human Services Department, Carolyn Ingram, Pamela Hyde,¹ Alfredo Vigil, and Cindy Padilla (hereinafter “State Defendants”). On July 27, 2009, Plaintiff filed Plaintiff's Response to Defendants' Motion to Dismiss Plaintiff's Claim for Declaratory/Injunctive Relief ( Doc. 34 ) (hereinafter “ Response ”), and on August 7, 2009, State Defendants filed Defendants' Reply in Support of Motion to Dismiss Plaintiff's Claims for Declaratory/Injunctive Relief ( Doc. 37 ) (hereinafter “ Reply ”). The undersigned United States Magistrate Judge, acting upon consent and designation pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73(b), and having considered the parties' submissions, the relevant law, and otherwise being fully advised in the premises, FINDS, for the reasons set forth below, that State Defendants' Motion to Dismiss should be GRANTED.

I. BACKGROUND

The following facts are either undisputed or are viewed in a light most favorable to Plaintiff. See Anderson v. Suiters, 499 F.3d 1228, 1232 (10th Cir.2007). Plaintiff has a medical history of cerebral palsy and autism and is legally blind. Notice of Appeal From Administrative Hearing and Complaint for Injunctive and Declaratory Relief ( Doc. 1–2 ) at 2 (attached to Joint Notice of Removal ( Doc. 1 )) (hereinafter “ Plaintiff's Notice of Appeal and Complaint ”). Plaintiff applied for “Mi Via Waiver” services under New Mexico's Home and Community Based Services Waiver provisions.²Id. Under the Mi Via Waiver program, participants over the age of 21 are given an annual budget of $34,553 (excluding residential support services) or $59,449 ³ (including residential support services) to purchase goods and services. Record, Exhibit 2 at 160; see also Motion to Dismiss ( Doc. 33 ) at 2, Plaintiff's Notice of Appeal and Complaint at 6. Pursuant to NMAC § 8.314.6.17(B)(2) (2006), the annual budget for participants with no prior waiver cost experience is “calculated based on algorithms developed by the state for recipients of the same waiver population ... with similar characteristics as the [M]i [V]ia participant.” See also Mi Via Waiver Program Service Standards, Record, Exhibit 3 at 162–63. A participant's budget allotment can be increased if the participant shows that she or he has one or more of the following: (1) a chronic physical condition; (2) a change in physical health status; (3) chronic or intermittent behavioral conditions or cognitive difficulties; or (4) a change in natural supports. Mi Via Waiver Service Standards, Record, Exhibit 3 at 163–67.

Plaintiff was given an annual budget of $59,449 under the Mi Via Waiver program. Motion to Dismiss ( Doc. 33 ) at 2. Plaintiff met the criteria for an increased budget allotment for chronic behavioral conditions and cognitive difficulties. Plaintiff's Notice of Appeal and Complaint ( Doc. 1–2 ) at 6. After meeting with a consultant hired by the New Mexico Department of Health, Plaintiff submitted a proposed request for additional funding to make her total budget amount $116,080. Id. at 7. After an additional meeting which included Plaintiff, Mi Via Waiver program employees and the state consultant, Plaintiff submitted a revised budget request of $106,667. Id. Finally, without input from Plaintiff, Defendant New Mexico Department of Health, the consultant, and Lovelace staff made a further deduction of $9,660.44 from Plaintiff's proposed budget, resulting in an approved budget of $97,007.24. Id. at 7–8. In making the final deduction of $9,660.44, Plaintiff was denied funding for: chiropractic and orthotic services, nutritional supplements, fleet enemas, ski lessons, swim punch card, funds to attend non-local conferences and meetings (including registration, hotel, and per diem), four DVDs, overnight care, care buddy merit increases, driver merit increases, community job advisor raises, and money in a reserve fund. Id. at 2; Motion to Dismiss ( Doc. 33 ) at 3. Lovelace stated that the rejected requests were denied pursuant to NMAC § 8.314.6.17(C) (2006), which provides that requested services can be approved if they: (1) “increase the participant's functioning related to the disability;” (2) “increase the participant's safety in the home environment;” or (3) “decrease [the participant's] dependence on other medicaid-funded services.”). See Record, Exhibit 26 at 339–40.

Plaintiff requested and was provided an administrative evidentiary hearing concerning the items denied in her budget request. Appellant Jessica Cohon['s] Statement of Appellant Issues ( Doc. 10 ) at 4. The administrative law judge made a determination that Plaintiff's additional budget requests met the criteria for Mi Via Waiver services, that the requests for chiropractic and orthotic services and nutritional supplements and fleet enemas should have been approved, but Defendant New Mexico Human Services Department had the discretion to disapprove the other services. Record at x-xi. Defendant Ingram, Medical Assistance Division Director, reversed the administrative law judge's determination that any of the additional budget requests should be approved, and stated that, because the additional budget requests exceeded the Mi Via budgetary allotment, they must meet the requirement that they be necessary to “keep the participant safe.” Id. at i-ii.

On October 30, 2008, Plaintiff filed her appeal of the administrative decision in the First Judicial District Court of New Mexico. Plaintiff's Notice of Appeal and Complaint ( Doc. 1–2 ) at 1. Plaintiff appeals the denial of her budget request ( id. at 2), and claims “that the denial of the requested services is a violation of her civil rights as guaranteed under the federal and state constitutions, 42 U.S.C. § 1983, the Americans with Disabilities Act and Section 504 of the Rehabilitation Act” ( id. at 3). Plaintiff asks for: (1) a declaration that State Defendants' failure to approve her budget requests was and is unlawful; (2) an injunction ordering State Defendants to treat all budget requests for Mi Via Waiver participants in the same manner and consistent with the Mi Via regulations and standards; and (3) attorneys' fees and costs. Id. at 17. State Defendants removed the case to this Court on November 26, 2008. Joint Notice of Removal ( Doc. 1 ). In their Motion to Dismiss, State Defendants ask the Court to dismiss Plaintiff's claims against all Defendants because Plaintiff has failed to state a claim for relief with respect to her due process, equal protection, Americans with Disabilities Act (hereinafter “ADA”), and Rehabilitation Act (hereinafter “§ 504”) claims. Document 33 at 1–2, 10.

II. LEGAL STANDARDS

Dismissal of a complaint under Fed.R.Civ.P. 12(b)(6) is appropriate only if, accepting all facts alleged as true, Plaintiff has not pled “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (abrogating the “no set of facts” language in Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). To withstand a motion to dismiss, a complaint must set forth “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citations omitted). The Tenth Circuit has explained that under this standard, a “plaintiff must nudge [her] claims across the line from conceivable to plausible.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir.2007) (citation and internal quotation omitted). While a complaint does not need detailed factual allegations, a plaintiff must provide the grounds for entitlement to relief, which requires “more than labels and conclusions,” and “a formulaic recitation of the elements of a cause of action will not do.” Iqbal, 129 S.Ct. at 1949 (citation omitted). The complaint must contain enough facts to raise a reasonable expectation that discovery will reveal evidence of the alleged conduct. Twombly, 550 U.S. at 556, 127 S.Ct. 1955.

The Court accepts as true all well-pled allegations and views them in the light most favorable to Plaintiff. Ridge at Red Hawk, LLC, 493 F.3d at 1177. “Well-pled,” however, means that the allegations are “plausible, non-conclusory, and non-speculative.” Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th Cir.2008). The factual allegations must be enough to raise a right to relief above the speculative level. Twombly, 550 U.S. at 555, 127 S.Ct. 1955.

III. ANALYSIS

State Defendants contend that Plaintiff's ADA, § 504, and constitutional claims should be dismissed because Plaintiff fails to provide sufficient facts to state a claim for relief. Motion to Dismiss ( Doc. 33 ) at 5–6. In addition, State Defendants contend that Plaintiff's claims should be dismissed because “the ultimate issue of fact” was decided at the administrative level and, therefore, Plaintiff is barred by collateral estoppel from re-litigating...