Cohon v. State Dep't of Health

• Decision Date: 09 May 2011
• Docket Number: No. 10–2002.,10–2002.
• Citation: 43 NDLR P 44,646 F.3d 717
• Court: U.S. Court of Appeals — Tenth Circuit
• Parties: Jessica COHON, through her mother/next friend Stevie BASS, Plaintiff–Appellant,v.State of NEW MEXICO DEPARTMENT OF HEALTH; New Mexico Human Services Department; New Mexico Aging & Long Term Services Department; Lovelace Community Health Plan; Carolyn Ingram, Medicaid Assistance Division Director; Pamela Hyde, Secretary of Human Services Department; Alfredo Vigil, Secretary of Department of Health; Cindy Padilla, Secretary of Aging & Long Term Services, all in their individual capacities, Defendants–Appellees.

646 F.3d 717

43 NDLR P 44

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

v.State of NEW MEXICO DEPARTMENT OF HEALTH; New Mexico Human Services Department; New Mexico Aging & Long Term Services Department; Lovelace Community Health Plan; Carolyn Ingram, Medicaid Assistance Division Director; Pamela Hyde, Secretary of Human Services Department; Alfredo Vigil, Secretary of Department of Health; Cindy Padilla, Secretary of Aging & Long Term Services, all in their individual capacities, Defendants–Appellees.

No. 10–2002.

United States Court of Appeals, Tenth Circuit.

May 9, 2011.

Maureen A. Sanders (Duff Westbrook with her on the briefs), Sanders & Westbrook, P.C., Albuquerque, NM, for the Appellant.Paul R. Ritzma (Mark H. Reynolds, New Mexico Human Services Department, Santa Fe, NM, Chris Woodward, New Mexico Department of Health, Santa Fe, NM, and Ana Marie Ortiz, New Mexico Aging and Long Term Services Department, Santa Fe, NM, with him on the brief), New Mexico Human Services Department, Santa Fe, NM, for the Appellees.Jennifer L. Stone and Thomas Outler, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, NM, filed a brief for Appellee Lovelace Community Health Plan.Before TACHA, HOLLOWAY and KELLY, Circuit Judges.HOLLOWAY, Circuit Judge.

Plaintiff–Appellant Jessica Cohon sought funding through New Mexico's Mi Via Waiver program,¹ a Medicaid program offered by New Mexico that offers a home and community-based alternative to institutional care for qualifying individuals. Cohon qualified for the Mi Via Waiver program and submitted budget requests which were granted in part and denied in part. She unsuccessfully filed an administrative appeal, contesting the denial of certain of her budget requests.

Cohon then filed suit, by and through her mother, Stevie Bass (collectively, “Cohon”), against the New Mexico Department of Health (DOH), New Mexico Human Services Department (HSD), the New Mexico Aging and Long Term Services Department (ALTSD), the three state agencies responsible for administering the Mi Via Waiver program, as well as the secretaries of the three agencies in their official capacities, and Carolyn Ingram, the Director of the Medicaid Assistance Division of HSD (collectively, “State Defendants”). Cohon also sued the Lovelace Community Health Plan (“Lovelace”), a third party assessor contracted by the three state agencies to administer budget requests for the Mi Via Waiver program.

Cohon's complaint alleged that the administration of the Mi Via Waiver program discriminated against the severely disabled, including herself. She alleged that the process by which the Mi Via program was administered violated Title II of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (collectively, “statutory claims”), and also violated her substantive and procedural due process rights as well as the equal protection guarantees of the United States and New Mexico constitutions (collectively, “constitutional claims”).

State Defendants and Lovelace moved to dismiss Cohon's complaint under Federal Rule of Civil Procedure 12(b)(6) for failing to state a claim for which relief could be granted. Lovelace further moved to dismiss the complaint on the ground that it was not a proper party to be sued under any of Cohon's claims. The district court held that on all of Cohon's federal claims, her complaint failed to state a claim for which relief could be granted and consequently dismissed them. The district court remanded the remaining state law claims, including Cohon's appeal of the administrative determinations, to the First Judicial District Court, County of Santa Fe, State of New Mexico for further proceedings. The district court did not reach Lovelace's additional argument that it was not a proper party to be sued. Cohon now appeals the dismissal of the federal claims in her complaint.

I. FACTSThe Mi Via Waiver Program

The Mi Via Waiver program “provides self-directed home and community-based services to eligible [Home and Community Based Services] waiver recipients who are disabled or elderly (D & E), developmentally disabled (DD), medically fragile (MF), those diagnosed with acquired immunodeficiency syndrome (AIDS), and those diagnosed with certain brain-injuries (BI).” NMAC § 8.314.6.9 (2006). The program is designed “to provide a home and community-based alternative to institutional care that facilitates greater participant choice, direction and control over services and supports that are identified in the participant's individualized service and support plan (SSP), purchased within an agreed upon individual budgetary allotment (IBA), and delivered by service providers or vendors chosen by the participant.” Id. For a participant with no prior waiver cost experience, his or her IBA 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.” NMAC § 8.314.6.17(B)(2) (2006).

The Mi Via Waiver program provides an IBA of $59,449 for developmentally disabled participants over the age of 21 who require residential support services; for those who do not require residential support services, the IBA is $34,553. A participant's budget allotment can be increased above the IBA if the participant shows that he or she has a chronic physical condition, a change in physical health status, chronic or intermittent behavioral conditions or cognitive difficulties, or a change in natural supports. R., Vol. 2 at 429–33 (Mi Via Service Standards).

Cohon's Mi Via Waiver Budget Determination

Cohon is twenty-seven years old and legally blind. She has a medical history of cerebral palsy and autism. Compl. ¶ 10. Cohon's long-term care needs were assessed at Level 1, the most severe level of need in terms of the severity of her disability and the amount of care she requires. Id. ¶ 19. Cohon applied for Mi Via Waiver services under New Mexico's Home and Community Based Services Waiver provisions and was determined to be medically and financially eligible. Id. ¶ 11.

Cohon met with Lovelace to compile a budget request. Cohon qualified for the IBA of $59,449 as a participant with no prior waiver experience who was developmentally disabled, over 21 years of age, and required residential support services. Cohon met the criteria for additional funding related to chronic or intermittent behavioral conditions or cognitive difficulties. Id. ¶¶ 20, 25. After meeting with Lovelace, Cohon submitted a proposed request for additional funding such that her total budget request was $116,080. Id. ¶ 27. After another meeting including some state employees and Lovelace, Cohon submitted a revised budget request of $106,667. Id. ¶ 28. Lovelace determined that the revised proposed budget of $106,667 would result in savings of $13,442.50 to the state as compared with the cost of a traditional waiver program for developmentally disabled individuals. Id. ¶ 29.

On March 14, 2008, Cohon's proposed budget was partially approved in the amount of $97,007.24. Id. ¶ 34, 48. Cohon's proposed budget requests had been prioritized by the State Defendant's review committee without Cohon's input. Id. ¶¶ 33, 35, 37. The $9,660.44 in funding denied included Cohon's requests for funding for the following expenses: chiropractic and orthotic services, nutritional supplements, fleet enemas, ski lessons, swim punch cards, funds to attend non-local conferences and meetings (including registration, hotel, and a per diem), four DVDs, overnight care, care buddy merit increases, driver merit increases, community job advisor raises, and money in a reserve fund. Id. ¶ 36. Of the denied expenses, all but the per diem request met the Mi Via program's standards as expenses that could be approved. Id. ¶ 30. Had the budget requests not exceeded Cohon's IBA of $59,449, they would have been approved. Id. ¶ 42, 66.

Cohon requested and, on July 30, 2008, was provided with an administrative evidentiary hearing concerning the denied budget requests. The administrative law judge determined that Cohon's budget requests met the criteria for Mi Via Waiver services, that Cohon's requests for chiropractic and orthotic services, nutritional supplements, and fleet enemas should have been approved, but that the New Mexico Human Services Department had the discretion to disapprove the other services. Id. at 2–3. On September 30, 2008, defendant Carolyn Ingram 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 had to be necessary to “keep the participant safe” in order to be approved. Id. at 3.

Cohon's Complaint

Cohon's complaint asserts claims under Section 504 of the Rehabilitation Act and under Title II of the Americans with Disabilities Act (collectively, “statutory claims”). Compl. ¶¶ 99–107. Cohon alleges that the State Defendants violated Section 504 of the Rehabilitation Act “by discriminating against her in the manner used to determine the approval of budget requests within the Mi Via Waiver program.” Id. ¶ 102. Cohon further alleges that the State Defendants violated Title II of the Americans with Disabilities Acts by “subjecting [her] to discrimination in state programs on the basis of disability.” Id. ¶¶ 105–107. Specifically, Cohon alleges that aside from the per diem she requested, the services and budget items requested in her budget would have been approved if her funding requests had not exceeded the $59,449 IBA set by New Mexico. Id. ¶¶ 30, 32, 42, 43, 44, 66.

Budget requests exceeding $59,449 were approved only if they addressed Cohon's physical safety or risks associated with behavior issues. Id. ¶ 41, 46. Cohon alleges that because she has a high level of need, and because the state prioritizes her budget requests, all of her requests...