| [1] | United States District Court, D. Massachusetts
|
| [2] | 03-30160-KPN
|
| [3] |
2004.DMA.0000103<http://www.versuslaw.com>
|
| [4] | March 26, 2004.
|
| [5] | 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
|
| [6] | Timothy M. Jones Mass. Attorney General's Office, Springfield, MA, for Douglas S. Brown 15 Nutmeg Lane Eastham, MA (Defendant), J. Paterson Rae Western Mass. Legal Services Springfield, MA for Jeanette Mendez (Plaintiff), Elizabeth A. Silver Western Mass. Legal Services, Inc. Springfield, MA for Judy Cook (Plaintiff), Carmen Ortiz (Plaintiff), Jeanette Mendez (Plaintiff), Judy Cook (Plaintiff), Carmen Ortiz (Plaintiff)
|
| [7] | The opinion of the court was delivered by: KENNETH NEIMAN, Magistrate Judge
|
| [8] | MEMORANDUM AND ORDER WITH REGARD TO DEFENDANT'S
MOTION TO DEFENDANT'S MOTION TO DISMISS (Document No.
10) |
| [9] | 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.
Page 2
|
| [10] | I. BACKGROUND
|
| [11] | According to the Second Amended Complaint,*fn1 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.
|
| [12] | 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.
|
| [13] | 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
Page 3
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.
|
| [14] | II. STANDARDS OF REVIEW
|
| [15] | 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 (1957); Roeder v. Alpha Indus., Inc., 814 F.2d 22, 25
(1st Cir. 1987).
|
| [16] | The court notes, however, that Defendant's two threshold arguments with
respect to Count I — 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
Page 4
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).
|
| [17] | III. DISCUSSION
|
| [18] | 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.*fn2 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.
|
| [19] | 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.
|
| [20] | A. COUNT I: PRIVATE RIGHT OF ACTION
|
| [21] | 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
Page 5
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.
|
| [22] | "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 (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 (2001), and Middlesex County
Sewerage Auth. v. Nat'l Sea Clammers Ass'n, 435 U.S. 1,13 (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). 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 (2002)).
|
| [23] | 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
Page 6
"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.
|
| [24] | 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. Oh. 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.
Page 7
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.
|
| [25] | A similar result has been reached by still other courts with respect to
the third Medicaid provision, section 1396a(a)(17). See, e.g., Smith
v. Palmer, 24 F. Supp.2d 955, 963-66 (N.D. Iowa 1998);
Cherry, 1995 WL 502403, at *10-11. See also Preterm, Inc. v.
Dukakis, 591 F.2d 121, 126 (1st Cir. 1979) (applying section
1396a(a)(17) to question of whether Massachusetts could restrict abortion
coverage). Again, in applicable part, section (a)(17) requires state
Medicaid plans to include "reasonable standards . . . for determining
eligibility." In essence, therefore, there exists a persuasive line of
authority evidencing Congress' intent that all three of the Medicaid
provisions upon which Plaintiffs rely here create private rights for
which they may seek redress under section 1983.
|
| [26] | Defendant's initial memorandum in support of his motion to dismiss
mentioned none of this authority. Instead he stated simply that
"[P]laintiffs lack an enforceable right because their claims fail to
satisfy the second and third requirements in Blessing."
(Defendant's Memorandum in Support of Motion to Dismiss at 10.) This lack
of detailed analysis might be reason enough to reject Defendant's
position. See Parker v. Town of Swansea, 270 F. Supp.2d 92, 97
n.2 (D. Mass. 2003) (citing Kelley v. LaForce, 288 F.3d 1, 9
(1st Cir. 2003), for the proposition that "arguments not briefed are
waived")). Nonetheless, the court is compelled to address, and ultimately
reject, a slightly more
Page 8
fleshed-out argument that Defendant raises for the first time in
his reply memorandum, namely, that the Supreme Court's fairly recent
decision in Gonzaga "eviscerated" Blessing's three-part
test.
|
| [27] | The only case Defendant cites in support of this argument is Sabree
v. Houston, 245 F. Supp.2d 653 (E.D. Pa. 2003). Sabree
opines, in an unsupported footnote, that certain pre-Gonzaga
cases, including this court's 1999 decision in Rolland, utilized
"the more liberal three-prong test disavowed by Gonzaga."
Id. at 661 n.9 (emphasis added). This reference, Defendant asserts,
confirms that Gonzaga represents "a sea-change in the law
concerning private rights of action under § 1983 and . . . casts
considerable doubt on authority that applied the Blessing test."
(Defendant's Reply at 8.)
|
| [28] | The court finds Defendant's reading of, and reliance on,
Sabree somewhat misplaced. For one thing, Sabree's
gloss — that Gonzaga "disavowed" Blessing —
has been rejected by at least one other district court which, instead,
preferred to follow Blessing and the First Circuit's decision in
Bryson that section 1396a(a)(8) "provides the basis for an
action under § 1983." Rabin, 266 F. Supp.2d at 342.
Moreover, as Plaintiffs note, Sabree's "disavow[al]" language is
untenable in light of Gonzaga's own approving citations to the
Blessing indicators. See, e.g., Gonzaga, 536 U.S. at
282-83. Finally, several courts of appeal — including the First
Circuit in both Bryson and Rolland — have
continued to cite Blessing, with approval, in post-Gonzagra
contexts. See Rolland, 318 F.3d at 51-52 and n.8 (acknowledging
Gonzaga and then applying the Blessing indicators);
Bryson, 308 F.3d at 88 (noting the value of Blessing
indicators as "a guide" but that, under Gonzaga, the ultimate
issue concerns Congress' intent). See
Page 9
also Abrams v. City of Ranchos Palos Verdes,
354 F.3d 1094, 1096 (9th Cir. 2004), Schweier v. Cox, 340 F.3d 1284, 1290
(11th Cir. 2003), and Prison v. Zebro, 339 F.3d 994, 998 (8th
Cir. 2003) (all citing Blessing favorably in post-Gonzaga
contexts).
|
| [29] | Still, Defendant's position has some resonance. In a recent Medicaid
case, for example, the First Circuit itself made clear that
Gonzaga represented at least a "shift in emphasis" — if
not "a tidal shift" — in the area of private rights of action.
Long Term Care Pharmacy Alliance v. Ferguson, — F.3d
—, No. 03-1985, slip op. at 20, 2004 WL 513790, at *9 (1st Cir.
Mar. 17, 2004). As the First Circuit explained, Gonzaga did
more than simply repeat the Blessing indicators, it "indicated
that nothing short of `an unambiguously conferred right' could support a
claim under section 1983 based on a federal funding law." Id.,
slip op. at 16, 2004 WL 513790, at *7 (emphasis added; citations
omitted). Two "touchstones" in this analysis, the court continued, are
whether the particular statute (1) contains "rights creating language"
and (2) identifies a "discrete class of beneficiaries." Id.,
slip op. at 17, 2004 WL 513790, at *7 (citing Gonzaga, 536 U.S.
at 287-88). The court went on to find that the section of the Medicaid
statute there at issue, 42 U.S.C. § 1396 a(a)(30)(A) — which,
inter alia, requires that the rates charged by certain Medicaid
service providers be "sufficient to enlist enough providers to
provide services similar to those generally available in the area"
— failed both parts of this analysis. Id.
|
| [30] | Unfortunately for Defendant, the three Medicaid provisions at issue
here — unlike section 1396 a(a)(30)(A) — readily survive any
heightened analysis which Gonzaga requires. For one thing,
sections 1396 a(a)(8), (10) and (17) all contain "rights
Page 10
creating" language. To repeat, subsection (8) establishes the right
to have Medicaid services be provided "with reasonable promptness,"
subsection (10) creates the right to "sufficient services," and
subsection (17) provides for "reasonable standards . . . for
determining eligibility." In addition, and perhaps more importantly, each
subsection — again unlike subsection (30)(A) — identifies a
"discrete class of beneficiaries": "all eligible individuals" (subsection
(8)); specific "individuals" receiving aid, assistance or benefits in
comparison to others similarly situated (subsection (10)); and those
individuals seeking Medicaid "eligibility" (subsection (17)). Thus,
whether the particular Medicaid subsection at issue is analyzed strictly
under Blessing or through the filter of Gonzaga, each
one satisfies this circuit's test for providing a private right of action
via section 1983.
|
| [31] | To sum up, Plaintiffs' position that a private right of action exists
appears well grounded in case law and the Medicaid statute itself and
Defendant has submitted no persuasive authority to the contrary.
Accordingly, the court concludes that section 1983 provides Plaintiffs
with a cause of action to pursue all three of the statutory claims they
allege in Count I.
|
| [32] | B. COUNT I: SOVEREIGN IMMUNITY
|
| [33] | As a final jurisdictional argument, Defendant contends that he is
barred by the doctrine of sovereign immunity from being sued for the
claims raised in Count I. He concedes, however, that his sovereign
immunity argument is "identical" to one the First Circuit rejected in
Rosie D. ex rel. John D. v. Swift, 310 F.3d 230, 238
(1st Cir. 2002). The court being so bound, it will not dismiss Count I on
the basis of sovereign
Page 11
immunity. Accordingly, Plaintiffs have borne their burden of
establishing subject matter jurisdiction.
|
| [34] | C. COUNT II
|
| [35] | Count II alleges disability discrimination in violation of both Title
II of the ADA and the Rehab Act.*fn3 To make out a Title II ADA claim, a
plaintiff must establish, inter alia, "that [s]he is a qualified
individual with a disability." Parker v. Universidad de Puerto
Rico, 225 F.3d 1, 5 (1st Cir. 2000) (citing 42 U.S.C. § 12132).
A "disability" is defined as "(A) a physical or mental impairment that
substantially limits one or more of the major life activities of such
individual; (B) a record of such an impairment; or (C) being regarded as
having such an impairment." 42 U.S.C. § 12102(2).
|
| [36] | In the case at bar, Defendant argues that Plaintiffs do not have a
"disability" since their obesity is neither an "impairment" nor one that
"substantially limits one or more [of their] major life activities." In
the court's estimation, however, it is unnecessary to presently resolve
such issues since Count II amply satisfies the rules' relatively liberal
pleading requirements. See Fed.R.Civ.P. 8(a) and (e). As the Supreme
Court stated nearly one-half century ago:
|
| [37] | [T]he Federal Rules of Civil Procedure do not
require a claimant to set out in detail the facts
upon which he bases his claim. To the contrary,
all the Rules require is "a short and plain
statement of the claim" that will give the
defendant fair notice of what the plaintiff's
claim is and grounds upon which it rests.
Page 12
|
| [38] | Conley, 355 U.S. at 47 (quoting Fed.R.Civ.P. 8(a)).
Accord Leatherman v. Tarrant County Narcotics Unit,
507 U.S. 163, 168 (1993). See also Swierkiewicz v. Sorema N.A.,
534 U.S. 506, 513 (2002) (holding that complaints in employment discrimination
cases, "as in most others, must satisfy only the simple requirements of
Rule 8(a)") (footnote omitted).
|
| [39] | In the court's view, Plaintiffs have given Defendant "fair notice" of
their ADA claim and the "grounds upon which it rests." The complaint
alleges that Plaintiffs — at 411" and 226 pounds (Mendez), 5'6"
and 203 pounds (Cook) and 5'2" and 211.4 pounds (Ortiz) — are
"morbidly obese" and, accordingly, "are disabled persons or perceived to
be disabled within the meaning of the Rehabilitation Act and the
Americans with Disabilities Act." (Complaint at 1 and ¶ 53.) "As a
result," the complaint continues, "Defendant's policy or practice of
denying medically necessary breast reduction surgery to them because of
their obesity constitutes discrimination on the basis of disability."
(Id. ¶ 53.)
|
| [40] | To be sure, Defendant desires a ruling that obesity does not constitute
a "disability" as a matter of law. Cf. 29 C.F.R. part 1630, App.
§ 1630.2(j) (2004) ("[E]xcept in rare circumstances, obesity is not
considered a disabling impairment."). However, even Defendant concedes
that the First Circuit has allowed obese persons to pursue disability
discrimination claims. In Cook v. Rhode Is. Dep't of Mental
Retardation, 10 F.3d 17 (1st Cir. 1993), for example, the court
upheld a jury's verdict that discrimination because of morbid obesity
violated the Rehab Act. As may well be the case here, the court found
that the plaintiff's condition was either a "physical . . .
Page 13
impairment that substantially limit[ed] one or more of the major
life activities" or, at least, that the defendant "regarded" the
plaintiff as suffering from such an impairment:
On one hand, the jury could plausibly have found
that plaintiff had a physical impairment; after
all, she admittedly suffered from morbid obesity,
and she presented expert testimony that morbid
obesity is a physiological disorder involving a
dysfunction of both the metabolic system and the
neurological appetite-suppressing signal system,
capable of causing adverse effects within the
musculoskeletal, respiratory, and cardiovascular
systems. On the second hand, the jury could have
found that plaintiff, although not handicapped,
was treated by [the defendant] as if she had a
physical impairment.
Id. at 23. See Francis v. City of Meridan,
129 F.3d 281, 286 (2nd Cir. 1997) (observing that obesity may constitute a
"physical impairment" where it "relates to a physiological disorder");
Connor v. McDonald's Restaurant, 2003 WL 1343259, at *3 (D.
Conn. Mar. 19, 2003) (concluding that an allegation of morbid obesity was
sufficient to satisfy the liberal pleading standard of Rule 8(a) for a
disability discrimination claim). See also Fredregill v. Nationwide
Agribusiness Ins. Co., 992 F. Supp. 1082, 1088-89 (S.D. Iowa 1997)
(collecting cases on obesity as a disability).
|
| [41] | Of course, as Plaintiffs acknowledge, even if their obesity constitutes
a "physical impairment" under the ADA, they will have to prove that it
"substantially limits" at least one major life activity. See
42 U.S.C. § 12102(2)(A). This may prove difficult. See
28 C.F.R. § 35.104(1)(iii)(2) (2004) (in "disability" definition,
"[t]he phrase major life activities means functions such as caring for
one's self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working"). For the moment, however, the court
cannot say, beyond a doubt, that Plaintiffs will be unable to
Page 14
supply facts supporting this element or for that matter, the rest of
their claim for relief. See Conley, 355 U.S. 41-46;
Roeder, 814 F.2d at 25. Accordingly, Defendant's motion to
dismiss Count II will be denied.
|
| [42] | IV. CONCLUSION
|
| [43] | For the reasons stated, Defendant's motion to dismiss is DENIED.
Counsel for the parties are hereby ordered to appear for an initial
scheduling conference in accord with the notice to be issued by the
clerk's office.
|
| [44] | IT IS SO ORDERED.
|
| |
|
| | Opinion Footnotes |
| |
|
| [45] | *fn1 Technically, Defendant's motion to dismiss targets the First
Amended Complaint, but the parties agreed at oral argument that the
motion applies equally to the Second Amended Complaint which,
hereinafter, will be referred to as the "complaint."
|
| [46] | *fn2 Defendant had also argued that Count I should be dismissed
because Plaintiffs failed to exhaust their administrative remedies and
that Mendez's claim, in particular, was barred by the doctrine of issue
preclusion. As Plaintiff points out, however, Defendant withdrew these
contentions at oral argument. (Plaintiffs' Sur-reply to Defendant's
Motion to Dismiss at 8. See also Defendant's Reply to Plaintiffs'
Opposition to Motion to Dismiss ("Defendant's Reply") at 10 n.3.)
|
| [47] | *fn3 Since "`[d]isability' is defined identically under the ADA and
the Rehabilitation Act," Tardie v. Rehabilitation Hosp. of Rhode
Island, 168 F.3d 538, 542 (1st Cir. 1999), the court will
hereinafter refer only to the ADA standards.
Page 1
|