Mendez v. Brown

• Decision Date: 26 March 2004
• Docket Number: No. CIV.A. 03-30160-KPN.,CIV.A. 03-30160-KPN.
• Citation: 311 F.Supp.2d 134
• Parties: Jeannette MENDEZ, Judy Cook, and Carmen Ortiz, on behalf of themselves and all others similarly situated, Plaintiffs v. Douglas S. BROWN, in his official capacity as Acting Commissioner of the Massachusetts Division of Medical Assistance, Defendant
• Court: U.S. District Court — District of Massachusetts

311 F.Supp.2d 134

Jeannette MENDEZ, Judy Cook, and Carmen Ortiz, on behalf of themselves and all others similarly situated, Plaintiffs v. Douglas S. BROWN, in his official capacity as Acting Commissioner of the Massachusetts Division of Medical Assistance, Defendant

No. CIV.A. 03-30160-KPN.

United States District Court, D. Massachusetts.

March 26, 2004.

COPYRIGHT MATERIAL OMITTED

J. Paterson Rae, Elizabeth A. Silver, Springfield, MA, for Plaintiffs.

Timothy M. Jones, Mass. Attorney General's Office, Springfield, MA, for Defendant.

MEMORANDUM AND ORDER WITH REGARD TO DEFENDANT'S MOTION TO DISMISS (Document No. 10)

NEIMAN, United States Magistrate Judge.

In this action, Jeannette Mendez, Judy Cook and Carmen Ortiz ("Plaintiffs") — all of whom are clinically obese women receiving Medicaid benefits — allege that the Massachusetts Division of Medical Assistance ("DMA")' s policy and practice of denying breast reduction surgery for them and other obese women violates the Medicaid Act, Title II of the Americans with Disabilities Act ("ADA") and the Rehabilitation Act of 1973 ("Rehab Act"). The DMA's Acting Commissioner ("Defendant") has moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(1) and (6) and the parties have consented to this court's jurisdiction pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73(b). For the reasons indicated below, the court will deny Defendant's motion.

I. BACKGROUND

According to the Second Amended Complaint,¹ Plaintiffs are clinically obese women with hypermastia (severe breast enlargement) who are currently receiving Medicaid benefits through DMA. Although the complaint purports to apply to Plaintiffs and "all others similarly situated," no motion to certify the class has yet been filed. Therefore, the only existing plaintiffs are Mendez, Cook and Ortiz.

DMA has denied Medicaid coverage for reduction mammoplasty (breast reduction surgery) for each woman, despite the fact that such surgery has been recommended by their physicians. In each case, DMA has stated that it would reconsider its decision only after the particular individual lost a significant amount of weight. The weight loss requirement is grounded in Defendant's opinion that less costly options are available and that the requested services do not meet professionally recognized standards of health care.

Plaintiffs commenced this two-count action on June 16, 2003. Count I, relying on 42 U.S.C. § 1983 ("section 1983"), alleges that the DMA violated three provisions of the Medicaid Act, 42 U.S.C. § 1396a(a)(8) (which mandates that states provide Medicaid services "with reasonable promptness to all eligible individuals"), § 1396a(a)(10) (which requires states to ensure Medicaid services to certain categories of "individuals" be sufficient in "amount, duration, or scope" when compared with others similarly situated), and § 1396a(a)(17) (which requires state Medicaid plans to include "reasonable standards ... for determining eligibility"), and regulations implemented thereunder. Count II alleges disability discrimination in violation of Title II of the ADA, specifically 42 U.S.C. §§ 12131 and 12132, as well as section 504 of the Rehab Act, 29 U.S.C. § 794.

II. STANDARDS OF REVIEW

To the extent Defendant's motion is grounded in Rule 12(b)(6), the court has considered the salient facts alleged in the complaint and the reasonable inferences drawn therefrom in a light most favorable to Plaintiffs. See Coyne v. City of Somerville, 972 F.2d 440, 443 (1st Cir.1992). As necessary, the court has also considered "documents the authenticity of which are not disputed by the parties[,] ... official public records [,] ... documents central to [P]laintiff[ ]s['] claim ... [and] documents sufficiently referred to in the complaint." Alternative Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir.2001) (indicating that such documents may be considered on Rule 12(b)(6) motion without converting it into motion for summary judgment). As the parties are well aware, the complaint may be dismissed pursuant to Rule 12(b)(6) if Plaintiffs cannot prove, beyond a doubt, that facts supporting their claims entitle them to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Roeder v. Alpha Indus., Inc., 814 F.2d 22, 25 (1st Cir.1987).

The court notes, however, that Defendant's two threshold arguments with respect to CountI — further described below — question the court's jurisdiction and, as such, properly arise under Rule 12(b)(1). Pursuant to that rule, therefore, the court has considered the above materials (undisputedly authentic documents, public records, etc.) in determining whether Plaintiffs have borne their burden of establishing subject matter jurisdiction. See Gonzalez v. United States, 284 F.3d 281, 288 (1st Cir.2002). If they have not done so, the complaint may be dismissed. See Murphy v. United States, 45 F.3d 520, 522 (1st Cir.1995).

III. DISCUSSION

In the first of two threshold arguments as to why the court lacks jurisdiction over Count I, Plaintiffs' Medicaid claim, Defendant asserts that Plaintiffs have no private right of action, even via section 1983, to enforce the Medicaid provisions they reference. Second, Defendant asserts that DMA is entitled to sovereign immunity.² Beyond these threshold arguments, Defendant argues that Count II, Plaintiff's ADA and Rehab Act cause of action, fails to state a claim upon which relief may be granted.

The court will consider these arguments in turn. In the end, the court will conclude that none of Defendant's arguments provides a sufficient basis for allowing the motion to dismiss.

A. COUNT I: PRIVATE RIGHT OF ACTION

The parties appear to agree that the Medicaid statute itself contains no provision authorizing Plaintiffs to bring Count I. As a result, the first jurisdictional question raised by Defendant's motion is whether section 1983 provides Plaintiffs with a cause of action to pursue Defendant's alleged violations of certain portions of the Medicaid statute, 42 U.S.C. §§ 1396a(a)(8), (10) and (17). In the court's view, it does.

"In order to seek redress through § 1983, ... a plaintiff must assert the violation of a federal right, not merely a violation of federal law." Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997) (emphasis in original). According to the First Circuit Court of Appeals, relative to a recent Medicaid case originating in this court, "[t]he determination of whether a federal statute creates a private right ... turns on Congress's intent." Rolland v. Romney, 318 F.3d 42, 51 (1st Cir.2003) (citing Alexander v. Sandoval, 532 U.S. 275, 286, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001), and Middlesex County Sewerage Auth. v. Nat'l Sea Clammers Ass'n, 453 U.S. 1, 3, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981)). "Traditionally," the First Circuit observed, "three indicators" described by the Supreme Court in Blessing help determine whether a particular statutory provision gives rise to an enforceable federal right: (1) whether Congress intended that the provision in question benefit the plaintiff; (2) whether the right assertedly protected by the statute is so vague and amorphous that its enforcement would strain judicial competence; and (3) whether the statute unambiguously imposes a binding obligation on the states. Id. at 52 (citing Blessing, 520 U.S. at 340-41, 117 S.Ct. 1353). At bottom, the purpose of a court's inquiry "is to determine whether or not [the] statute `confer[s] rights on a particular class of persons.'" Id. at 51 n. 8 (quoting Gonzaga Univ. v. Doe, 536 U.S. 273, 274, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002)).

A host of courts — including both the First Circuit and this court — have applied the three Blessing indicators to find a section 1983 right of action to enforce the "reasonable promptness" section, 42 U.S.C. § 1396a(a)(8), the first Medicaid provision at issue in Count I. See Bryson v. Shumway, 308 F.3d 79, 88-89 (1st Cir.2002); Rolland v. Cellucci, 52 F.Supp.2d 231, 238-40 (D.Mass.1999). See also Westside Mothers v. Haveman, 289 F.3d 852, 862-63 (6th Cir.2002); Doe v. Chiles, 136 F.3d 709, 715-19 (11th Cir.1998); Rabin v. Wilson-Coker, 266 F.Supp.2d 332, 341-42 (D.Conn.2003); White v. Martin, No. 02-4154-CV-C-NKL (W.D.Mo. Oct. 3, 2002) (cited in Rabin); Antrican v. Buell, 158 F.Supp.2d 663, 670-71 (E.D.N.C.2001), aff'd on other grounds, 290 F.3d 178 (4th Cir.2002). As the First Circuit stated in Bryson:

First, the statute, on its face, does intend to benefit [eligible Medicaid recipients].... Second, the right conferred is not vague or amorphous.... Finally, § 1396a(a)(8) does unambiguously bind the states. The subsection mandates that state plans "must" provide that medical assistance be provided with reasonable promptness. These are not mere guidelines, but rather requirements which states must meet under the Medicaid system.

Bryson, 308 F.3d at 88-89.

In addition, a number of courts, applying Blessing, have held that a section 1983 right of action exists to enforce the second Medicaid provision at issue here, section 1396a(a)(10). See, e.g., Westside Mothers, 289 F.3d at 862-63; Antrican, 158 F.Supp.2d at 671-72, aff'd on other grounds, 290 F.3d 178 (4th Cir.2002); Rolland, 52 F.Supp.2d at 238-40; Cherry v. Tompkins, 1995 WL 502403, at *10-11 (S.D.Ohio Mar. 31, 1995). As indicated, section (a)(10), often referred to as the "comparability" provision, requires states to ensure that Medicaid services to certain categories of "individuals" be sufficient in "amount, duration, or scope" when compared with others similarly situated. The Sixth Circuit explained: "[T]he provisions set a binding obligation on [the states]" and "are not so vague and amorphous as to defeat judicial enforcement, as the state and regulations carefully detail the specific services to be provided." Westside Mothers, 289 F.3d at 863.

A similar result has been reached by still other courts...