Rolland v. Cellucci, Civ.A. 98-30208-KPN.

• Citation: 52 F.Supp.2d 231
• Decision Date: 04 June 1999
• Docket Number: No. Civ.A. 98-30208-KPN.,Civ.A. 98-30208-KPN.
• Parties: Loretta ROLLAND, et al., Plaintiffs, v. Argeo Paul CELLUCCI, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

52 F.Supp.2d 231

Loretta ROLLAND, et al., Plaintiffs, v. Argeo Paul CELLUCCI, et al., Defendants.

No. Civ.A. 98-30208-KPN.

United States District Court, D. Massachusetts.

June 4, 1999.

COPYRIGHT MATERIAL OMITTED

Richard D. Belin, Nima R. Eshghi, Foley, Hoag & Eliot, Boston, MA, Steven J. Schwartz, Center for Public Representation, Northampton, MA, Cathy E. Costanzo, Center for Public Representation, Northampton, MA, Stacie B. Siebrecht, Matthew Engel, Disability Law Center, Boston, MA, Frank J. Laski, Mental Health Legal Advisors Committee, Boston, MA, Christine M. Griffin, Disability Law Center, Boston, MA, for plaintiffs.

Judith S. Yogman, Attorney General's Office, Government Bureau, Boston, MA, H. Gregory Williams, Attorney General's Office, Springfield, MA, Rosemary S. Gale, Assistant Attorney General, Boston, MA, for defendants.

MEMORANDUM REGARDING DEFENDANTS' MOTION TO DISMISS (Docket No. 33) and DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' AMENDED COMPLAINT (Docket No. 55)

NEIMAN, United States Magistrate Judge.

This class action suit involves seven representative plaintiffs and two organizational plaintiffs, ARC Massachusetts ("ARC") and Stavros Center for Independent Living ("Stavros") (collectively "Plaintiffs"). In their complaint, as amended, Plaintiffs claim a violation of the integration mandate of the Americans with Disabilities Act (Count I), disability discrimination in violation of the Americans with Disabilities Act (Count II), violations of various Medicaid provisions including comparability, reasonable promptness, freedom of choice, services to developmentally disabled, services to nursing home residents (Count III through VII, respectively), and a violation of the Nursing Home Reform Amendments (Count VIII). Plaintiffs seek injunctive and declaratory relief from the Governor of Massachusetts ("Governor"), the Secretary of the Executive Office of Administration and Finance ("A & F"), the Secretary of the Executive Office of Health and Human Services ("EOHHS"), the Commissioner of the Division of Medical Assistance ("DMA"), the Commissioner of the Department of Mental Retardation ("DMR"), the Commissioner of the Massachusetts Rehabilitation Commission ("MRC"), the Commissioner of the Department of Public Health ("DPH"), and the Director of Region I for the Department of Mental Retardation ("Reg I").

Defendants now seek to dismiss the entirety of the amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). In essence, Defendants contend that 42 U.S.C. § 1983 provides no redress for violations of the various statutory provisions under which Plaintiffs seek vindication. For the reasons set forth below, Defendants' motion will be denied.

I. STANDARD OF REVIEW

A motion to dismiss under Rule 12(b)(6) is designed to test whether the complaint properly states a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). When assessing a Rule 12(b)(6) motion, a court does not weigh the evidence which might be presented at trial, but merely determines whether the complaint itself is legally sufficient. Kusek v. Family Circle, 894 F.Supp. 522, 527 (D.Mass.1995); Duncan v. Santaniello, 900 F.Supp. 547, 553 (D.Mass.1995). In carrying out this function, a court must accept "the factual averments contained in the complaint as true, indulging every reasonable inference helpful to the plaintiff's cause." Garita Hotel Ltd. Partnership v. Ponce Federal Bank, F.S.B., 958 F.2d 15, 17 (1st Cir.1992). See Pihl v. Massachusetts Dep't of Educ., 9 F.3d 184, 187 (1st Cir.1993). However, the court "need not credit bald assertions, periphrastic circumlocutions, unsubstantiated conclusions, or outright vituperation." Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 51 (1st Cir.1990). The appropriate inquiry is whether, based on the allegations of the complaint, Plaintiffs are entitled to offer evidence in support of their various causes of action. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).

II. DISCUSSION

It is well-settled that section 1983 is an available remedy for claimed violations of federal statutes as well as violations of the Constitution, Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), except "where Congress has foreclosed such enforcement of the statute in the enactment itself and where the statute did not create enforceable rights, privileges or immunities within the meaning of § 1983." Suter v. Artist M., 503 U.S. 347, 355, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992) (quoting Wright v. City of Roanoke Redev. and Hous. Auth., 479 U.S. 418, 423, 107 S.Ct. 766, 93 L.Ed.2d 781 (1987)). The threshold test of whether a statute creates such enforceable procedural and substantive rights within the meaning of section 1983 is "whether [it] was intend[ed] to benefit the putative plaintiff[s]." Visiting Nurse Ass'n of North Shore Inc. v. Bullen, 93 F.3d 997, 1002-03 (1st Cir.1996) (quoting Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 509, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990)). "If so, the provision creates an enforceable right unless it reflects merely a `congressional preference' for a certain kind of conduct rather than a binding obligation on the governmental unit, or unless the interest the plaintiff asserts is `too vague and amorphous' such that it is `beyond the competence of the judiciary to enforce.'" Id. (internal citations omitted).

Defendants concentrate much of their motion on two factors within this enunciated test. They first argue that the various statutes at issue contain precatory rather than mandatory pronouncements, making the rights contained within them merely aspirational and thus unenforceable by Plaintiffs as a matter of law. Second, Defendants maintain that the statutory provisions at issue are simply too vague and amorphous to be amenable to judicial enforcement.

A. Substantive Issues

Defendants' assertions with respect to the various statutory claims made by Plaintiffs will be addressed seriatim.

1.

Defendants first seek to dismiss those claims grounded in the Nursing Home Reform Amendments ("NHRA"), 42 U.S.C. § 1396r, which, in Plaintiffs' estimation, require the provision of "specialized services" to the mentally retarded and developmentally disabled class members, whether residing in or out of a nursing home. The relevant statutory provision requires that specialized services be provided "[i]n the case of a resident who is determined ... not to require the level of services provided by a nursing facility, but to require specialized services for ... mental retardation." 42 U.S.C. § 1396r(e)(7)(C)(i)(IV) and (iii)(III). In essence, Defendants aver that a section 1983 claim is an inappropriate vehicle to vindicate Plaintiffs' claimed NHRA rights given that the term "specialized services" is so inherently vague and amorphous as to allude judicial enforceability. Moreover, Defendants assert, neither the NHRA, nor its enabling regulations impose an enforceable duty upon them to provide specialized services to individuals residing in nursing facilities as a matter of law.

The parties fundamentally agree that the NHRA was enacted to quell overutilization of nursing home care for those who are not in need of institutionalization. To accomplish this goal, the NHRA devised a preadmission screening process ("PASARR") to be administered by the appropriate state agency, in this case the DMR, pursuant to relevant state and federal statutes and supporting regulations. See 42 U.S.C. § 1396r(e)(7)(B)(iv); M.G.L. ch. 123B. The parties also agree that the NHRA mandates that a state provide specialized services to those individuals who are determined through PASARR not to need treatment in a residential nursing facility. Otherwise, the parties' respective interpretations of the NHRA diverge.

Plaintiffs maintain that the PASARR provisions create an affirmative duty for Defendants to provide specialized services and active treatment for individuals regardless of their residence. In counterpoint, Defendants maintain that the NHRA requires the state to render specialized services only in the event an individual does not require nursing home care.

It does not appear to the court that the statutory language precludes the provision of specialized services to nursing home residents. It is clear that, at a minimum, the PASARR review is employed to determine "whether the resident [of a nursing facility who is] mentally retarded or developmentally disabled requires specialized services for mental retardation." 42 U.S.C. § 1396r(e)(7)(B)(ii). In fact, the statute directs the Secretary of the Health and Human Services ("Secretary") to promulgate regulations to make these determinations. Defendants concede as much. Defendants also acknowledge that the regulations promulgated at the direction of the Secretary by the Health Care Financing Administration ("HCFA") contemplate that a PASARR evaluation may determine that an individual requires both nursing home level care and specialized services. 57 Fed.Reg. 56,477 (Nov. 30, 1992). See 42 C.F.R. § 483.130(n).

Despite the plain language of the implementing regulations, Defendants argue that courts are generally reluctant to imply a right of action under section 1983 from a regulation, as opposed to a statutory provision. Moreover, Defendants contend, the regulations go beyond the statutory scope of authority and are not amenable to judicial review and enforcement. At bottom, Defendants dispute that an enforceable obligation to provide specialized services for nursing facility residents arises from the NHRA itself. While they admit that no court has so held, Defendants maintain that Plaintiffs' claims under the NHRA should be dismissed in the absence of any evidence that Congress specifically intended to create a judicially enforceable right to specialized services. At best, Defendants maintain, the regulations are merely precatory. Finally, Defendants argue that the term "specialized...