Lewis v. New Mexico Dept. of Health

94 F.Supp.2d 1217

Ben LEWIS, Aaron Norrid, Billy Jo Quisenberry and Fred Romero, by and through their legal guardian and next of friend the Arc of New Mexico, Breanne Liddell, by and through her parent and legal guardian Judy Liddell, Matthew Allen, by and through his parents and legal guardians Jim and Angela Allen, Fay Morgan, Deborah Eminger and Protection and Advocacy System, Inc., Plaintiffs, v. NEW MEXICO DEPARTMENT OF HEALTH, New Mexico Department of Human Services, J. Alex Valdez, Secretary of the Department of Health and Secretary Designee of the Department of Human Services in his official capacities, and Governor Gary Johnson in his official capacity, Defendants.

No. CIV.99-0021MVRLP.

United States District Court, D. New Mexico.

April 24, 2000.

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Duff Westbrook, Michael C. Parks, Albuquerque, NM, V. Colleen Miller, for Plaintiffs.

Charles A. Pharris, Kurt Wihl, Margaret Davidson, Gary J. Van Luchene, Albuquerque, NM, for Defendants.

AMENDED MEMORANDUM OPINION AND ORDER

VAZQUEZ, District Judge.

THIS MATTER is before the Court on Defendants' Motion to Dismiss Based on Sovereign Immunity, filed June 14, 1999 [Doc. No. 25]; Defendants' Motion to Dismiss Pursuant to Rule 12(b)(6), filed June 14, 1999 [Doc. No. 20]; and Defendants' Motion to Dismiss Governor Gary Johnson, filed June 14, 1999 [Doc. No. 12]. The Court, having considered the motions, responses, replies, relevant law and being otherwise fully informed, finds that the Motion to Dismiss Based on Sovereign Immunity and Motion to Dismiss Governor Gary Johnson are well-taken in part and will be denied in part and granted in part and that the Motion to Dismiss Pursuant to Rule 12(b)(6) is not well-taken and will be denied.

BACKGROUND

Plaintiffs are individuals who are eligible to participate in Medicaid programs because they have physical or developmental disabilities or because of their advanced age, and Protection and Advocacy — an agency that advocates for the rights of persons with disabilities. Medicaid is a cooperative federal-state program under which participating states obtain federal funds for their programs and must comply with the requirements of the Medicaid Act, 42 U.S.C. §§ 1396 et seq., and its implementing regulations. Under the Medicaid Act, participating states can apply to the Secretary of Health and Human Services for a waiver of certain requirements so that they can use Medicaid funds to pay for home and community-based health services. 42 U.S.C. § 1396n(c). New Mexico is a participating state that has developed two waiver programs at issue in this case — the Developmental Disabilities Home and Community-Based Services Waiver ("DD Waiver") and the Disabled and Elderly Home and Community-Based Services Waiver ("D & E Waiver") (together "waiver programs" or "waiver services"). Plaintiffs allege that pursuant to the Medicaid Act, they are entitled to less restrictive home and community-based services with "reasonable promptness," 42 U.S.C. § 1396a(a)(8), instead of the institutional care they now receive, but that they have been on waiting lists to receive these less restrictive waiver services for as many as seven years.

According to Plaintiffs' Amended Complaint, Defendants New Mexico Department of Health ("DOH") and New Mexico Department of Human Services ("HSD") are the departments responsible for implementing the waiver program for persons with disabilities and for administering New Mexico's Medicaid program, respectively. Defendant J. Alex Valdez is named in his official capacities as Secretary of DOH and Secretary-Designee of HSD. Lastly, Gary Johnson, Governor of New Mexico, is sued in his official capacity. Plaintiffs aver that the Governor must uphold the Constitution and other laws; is responsible for appointing and supervising executive department heads, including Valdez; is responsible for proposing a budget adequate to fund DOH and HSD; and has authority for applying for federal funds for the waiver programs at issue.

Plaintiffs complain that Defendants have failed to provide people with disabilities with the Medicaid waiver programs to which they are entitled, in violation of the Medicaid Act, 42 U.S.C. §§ 1396 et seq. and implementing regulations; the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 1201 et. seq. and implementing regulations; and procedural and substantive due process under the Fifth and Fourteenth Amendments, in violation of 42 U.S.C. § 1983. Specifically, Plaintiffs allege that Governor Johnson has directed Valdez and his predecessors not to plan for increases in the DOH and HSD budgets which has prevented Valdez from submitting budgets with sufficient funds for the waiver programs. Moreover, Plaintiffs complain that Governor Johnson directed that some persons with developmental disabilities who were receiving necessary services be moved to waiver programs. According to Plaintiffs, Governor Johnson used the resulting savings for the state general fund, which meant that fewer people received waiver services. Plaintiffs allege that Governor Johnson and Valdez have not requested needed funds for the waiver services and Governor Johnson vetoed additional funds, despite their knowledge that several hundred persons are waiting for such services. Plaintiffs seek a declaration that the current operation of the waiver programs violates federal law and injunctive relief directing Defendants to comply with the Medicaid Act by providing waiver services with reasonable promptness, and with the ADA by providing settings in the most integrated services possible given each Plaintiff's needs.

Defendants have moved to dismiss the action, claiming sovereign immunity under the Eleventh Amendment, and arguing that Plaintiff's cannot state a claim upon which relief can be granted. Defendant Governor Johnson has moved to dismiss for failure to state claim against him.

ANALYSIS

I. Eleventh Amendment Sovereign Immunity¹

The Eleventh Amendment provides:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State or Subjects of any Foreign State.

The Eleventh Amendment has been interpreted as imposing a jurisdictional bar against individuals bringing suit against a state or its agencies in federal court. See Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 304, 110 S.Ct. 1868, 109 L.Ed.2d 264 (1990). However, sovereign immunity under the Eleventh Amendment is not absolute. A state may consent to be sued in federal court and Congress may abrogate Eleventh Amendment protections. Id. In Ex parte Young, 209 U.S. 123, 158-59, 28 S.Ct. 441, 52 L.Ed. 714 (1908), the Supreme Court created another exception of sorts, holding that the Eleventh Amendment does not bar a suit for prospective injunctive relief against a state official who violates federal law. Because both state agencies and officers are named as Defendants in this case, the Court will consider each set of Defendants in turn as they implicate different issues — Eleventh Amendment abrogation and the Ex parte Young doctrine.

A. Abrogation of State Sovereign Immunity Under the ADA

Plaintiffs concede that the Eleventh Amendment precludes section 1983 claims against state agencies, but point out that the only claims they have brought against the agencies are under the ADA. These claims, Plaintiffs assert, can properly be maintained because Congress abrogated the states' Eleventh Amendment sovereign immunity when it enacted the ADA. Defendants contend that DOH and HSD must be dismissed because the ADA creates new rights not guaranteed by the Constitution and is consequently an invalid exercise of Congressional power which did not validly abrogate state sovereign immunity. Moreover, Defendants argue that Congress did not clearly declare its intent to abrogate the immunity when it enacted the ADA.

In Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), the Supreme Court developed a two-prong test for determining whether Congress has properly abrogated a state's sovereign immunity: "first, whether Congress has `unequivocally expressed its intent to abrogate the immunity;' and second, whether Congress has acted `pursuant to a valid exercise of power.'" Id. at 55, 116 S.Ct. 1114 (quoting Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985)). Congress may abrogate state sovereign immunity under § 5 of the Fourteenth Amendment, id. at 57, 116 S.Ct. 1114; see also Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976), but may not do so pursuant to its powers under Article I. See Kimel v. Florida Bd. of Regents, ___ U.S. ___, 120 S.Ct. 631, 643, 145 L.Ed.2d 522 (2000); Seminole Tribe at 66, 116 S.Ct. 1114 (overruling Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989), and holding that Congress may not abrogate state sovereign immunity pursuant to the Interstate Commerce Clause).

Turning to the first part of Seminole Tribe, the Court finds that Congress unmistakably expressed its intent to abrogate state sovereign immunity under the ADA. Accord Clark v. State of California, 123 F.3d 1267, 1269 (9th Cir.1997). The statute expressly provides, "[a] State shall not be immune under the eleventh amendment ... from an action in Federal or State court of competent jurisdiction for a violation of this chapter." 42 U.S.C. § 12202.

Applying the second portion of the Seminole Tribe test, the Court must assess whether Congress acted pursuant to a valid exercise of power when it enacted the ADA. Most Circuits have held that Congress did properly abrogate state sovereignty as to the ADA. Compare Martin v. Kansas, 190 F.3d 1120, 1125-29 (10th Cir.1999) (holding that the enactment of the ADA is a valid exercise of Congress's Fourteenth Amendment powers...