Belancio v. Mosier et al
MEMORANDUM AND ORDER granting in part and denying in part 23 Motion to Dismiss for Failure to State a Claim. The Court GRANTS Defendants' request to dismiss the individually-named Defendants from this case, and DENIES Defendants' remaining requests. Signed by District Judge Eric F. Melgren on 5/18/2018. (sz)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Case No. 17-1180-EFM
KANSAS DEPARTMENT OF HEALTH
AND ENVIRONMENT, JEFF ANDERSON,
Secretary of the Kansas Department of Health
and Environment, in his official capacity,
JONATHAN HAMDORF, Director of the
Division of Health Care Finance, in his
official capacity, MARY ELLEN O’BRIEN
WRIGHT, Senior Manager of WORK, in her
official capacity, and SHERRI MARNEY,
WORK Program Manager, in her official
MEMORANDUM AND ORDER
This case arises out of the Kansas Department of Health and Environment’s (“KDHE”)
denial of benefits to Plaintiff Thomas Belancio under the Kansas WORK program. Plaintiff
alleges violations of Title II of the Americans with Disabilities Act of 1990 (“ADA”) and the
Rehabilitation Act of 1973 (“Rehabilitation Act”). He pursues these claims against the KDHE, as
well as several individually-named officials of the KDHE in their official capacities (collectively
“Defendants”). This matter is currently before the Court on Defendants’ Motion to Dismiss First
Amended Complaint (Doc. 23). For the reasons stated below, the Court denies in part and grants
in part Defendants’ motion. It denies Defendants’ requests to abstain under the Colorado River
doctrine and to dismiss Plaintiff’s ADA and Rehabilitation Act claims for failure to state a claim
upon which relief can be granted, and grants Defendants’ request to dismiss the individuallynamed Defendants.
Factual and Procedural Background1
Plaintiff has several conditions that substantially limit one or more of his major life
activities and is a qualified person with a disability as defined by the ADA and the Rehabilitation
Act. His continuing conditions include autistic spectrum disorder, borderline IQ, cerebral palsy,
epilepsy and seizure disorders, type II diabetes, high cholesterol, depression, and psoriasis.
Plaintiff began receiving benefits through the Kansas WORK program in 2014.
The KDHE’s division of Health Care Finance administers the Kansas Medicaid programs,
including the WORK program at issue here. Kansas implemented the WORK program in 2007,
and, through its participation in the federal Medicaid program, receives federal financial
assistance. The WORK program is based on 42 U.S.C. § 1396n(j) and 42 C.F.R. Part 441, Subpart
J, and is generically known as a “cash and counseling” program.
The KDHE issued an administrative manual for WORK that specifies the various
definitions, scope, functions, and limitations for the WORK program. In it, the KDHE describes
the WORK program as “a program through which people enrolled in Working Healthy receive
personal assistance services (PAS).” Under the WORK manual, PAS include one or more persons
The Court recites the facts as identified in Plaintiff’s First Amended Complaint, drawing all reasonable
inferences in the light most favorable to Plaintiff.
physically assisting an individual with, or cuing/prompting an individual, to perform Activities of
Daily Living (ADLs) or Instrumental Activities of Daily Living (IADLs). ADLs include bathing,
grooming, toileting, transferring, feeding, and mobility. IADLs include housecleaning, laundry,
meal preparation, money management, lawn care/snow removal, and transportation.
As part of the WORK program, Plaintiff received an initial assessment on April 23, 2014,
that identified Plaintiff as having a need of 91.97 monthly PAS hours. This resulted in a monthly
allocation of $1,182.00 for the period beginning June 1, 2014, and ending May 31, 2015. The
KDHE approved Plaintiff’s proposed budget for the 2014-2015 period, which proposed to utilize
the allotted funds on a monthly basis as follows: $50.00 for transportation, $35.00 for
housekeeping, and $1,092.00 to Kansas Focus for 52 hours of personal services at $21.00 per hour.
This budget utilized approximately 56% of the 91.97 assessed monthly hours. Partway through
the 2014-2015 period, Plaintiff proposed a revision to his original budget that allotted an additional
$80.00 for transportation and reduced the amount of funds to Kansas Focus to $1,008.00 for 48
hours of personal service. The KDHE approved the revised budget on November 19, 2014.
Plaintiff alleges that although PAS providers are generally allowed $13.25 per hour, the
KDHE allowed Plaintiff to pay Kansas Focus $21.00 per hour because of its expertise in dealing
with persons who have the same disabilities as Plaintiff, as well as its ability to accomplish more
in fewer hours. Because Plaintiff paid a higher hourly rate for PAS, his budget utilized a lower
percentage of the assessed hours than if he paid for services at a rate of $13.25 per hour.
In April 2015, Plaintiff received a re-assessed monthly need of 102.4 PAS hours and a
2015-2016 allocation of $1,316.00 per month.
His proposed 2015-2016 budget utilized
approximately 57% of the assessed hours and called for 59 hours of services from Kansas Focus
per month, at $21.00 per hour.
At some point after Plaintiff’s assessment, Defendants
communicated that Plaintiff’s budget must utilize at least 70% of the assessed hours. This 70%
utilization rule had not previously been communicated to Plaintiff or enforced against Plaintiff,
and it does not appear in any documents published by the KDHE, including the administrative
manual for the WORK program. On May 7, 2015, Plaintiff’s brother wrote Defendant Marney on
Plaintiff’s behalf requesting a modification in the KDHE’s practice of refusing to approve a budget
utilizing less than 70% of the hours. In an attempt to engage in the interactive process, Plaintiff’s
brother offered to travel to Topeka to meet with Defendant Marney, but she ignored his offer.
Defendants were also given a schedule demonstrating how all of Plaintiff’s needs would be met
under the proposed budget.
All parties involved in the 2015 assessment, including KDHE personnel, agreed that
Plaintiff’s proposed use of funds, which tracked the 2014-2015 budget, works for Plaintiff.
Regardless, Defendants Marney and Wright rejected Plaintiff’s proposed budget on May 13, 2015.
That same day Plaintiff’s brother again wrote Defendant Marney requesting a reasonable
accommodation by modifying the practice of automatically rejecting the proposed budget because
it utilized less than 70% of the assessed hours, but Defendants did not agree to his request.
Plaintiff appealed the denial of his proposed budget and an administrative law judge
affirmed the KDHE’s rejection of the budget. Plaintiff filed a petition for review before the
Division of Health Care Finance State Appeals Committee, and that committee also affirmed the
KDHE’s decision. Plaintiff then filed a Petition for Judicial Review in the Johnson County District
Court on July 26, 2017.
Plaintiff filed this action on July 27, 2017, and filed his First Amended Complaint on
October 31, 2017. Plaintiff alleges that Defendants violated the ADA and Rehabilitation Act by
failing to provide a reasonable modification to its practice of denying a proposed budget that
utilizes less than 70% of the assessed hours.
He seeks a permanent injunction enjoining
Defendants from enforcing their practice to automatically disapprove Plaintiff’s proposed budget.
Defendants filed a motion to dismiss alleging that Plaintiff has failed to state a claim under the
ADA or Rehabilitation Act, that this Court should abstain from hearing this case under the
Colorado River doctrine, and that the individually-named Defendants should be dismissed given
the KDHE’s status as a Defendant in this case.
Under Rule 12(b)(6), a party may move for dismissal of “a claim for relief in any pleading”
that fails to state a claim upon which relief can be granted. Upon such motion, the Court must
decide “whether the complaint contains ‘enough facts to state a claim to relief that is plausible on
its face.’ ”2 “[T]he mere metaphysical possibility that some plaintiff could prove some set of facts
in support of the pleaded claims is insufficient;” rather, the complaint “must give the court reason
to believe that this plaintiff has a reasonable likelihood of mustering factual support for these
claims.”3 The Court does not “weigh potential evidence that the parties might present at trial,” but
assesses whether the complaint “alone is legally sufficient to state a claim for which relief may be
granted.”4 In determining whether a claim is facially plausible, the Court must draw on its judicial
experience and common sense.5 All well-pleaded facts are assumed to be true and are construed
Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). See also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Ridge at Red Hawk, 493 F.3d at 1177 (emphases in original).
Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (quotation omitted).
Iqbal, 556 U.S. at 679.
in the light most favorable to the non-moving party.6
Allegations that merely state legal
conclusions, however, need not be accepted as true.7
The Court will not abstain under the Colorado River doctrine.
“As a general rule, ‘the pendency of an action in the state court is no bar to proceedings
concerning the same matter in the Federal court having jurisdiction.’ ”8 In “the ordinary course of
things,” federal courts “will not and should not shy away from contemporaneously exercising
concurrent jurisdiction with a state court.”9 At times, however, “ ‘reasons of wise judicial
administration’ must weigh in favor of ‘permitting the dismissal of a federal suit due to the
presence of a concurrent state proceeding.’ ”10 Indeed, although Federal courts have a “virtually
unflagging obligation . . . to exercise the jurisdiction given them,” this obligation is not absolute.11
“It is well-established that ‘federal courts have the power to refrain from hearing,’ among other
things, ‘cases which are duplicative of a pending state proceeding.’ ”12 This power, however,
should only be exercised in “exceptional circumstances.”13
Albers v. Bd. of Cty. Comm’rs of Jefferson Cty., 771 F.3d 697, 700 (10th Cir. 2014).
See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
D.A. Osguthorpe Family P’ship v. ASC Utah, Inc., 705 F.3d 1223, 1233 (10th Cir. 2013) (quoting Colo.
River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976)).
Id. (quoting Colorado River, 424 U.S. at 818).
Id. (quoting Colorado River, 424 U.S. at 817).
Id. (quoting Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716-17 (1996)).
Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 19 (1983) (quotation omitted).
The U.S. Supreme Court originally identified four factors to aid the Court in determining
whether to abstain from hearing a case under Colorado River: “(1) whether the state or federal
court first assumed jurisdiction over the same res; (2) ‘the inconvenience of the federal forum’; (3)
‘the desirability of avoiding piecemeal litigation’; and (4) ‘the order in which jurisdiction was
obtained by the concurrent forums.’ ”14 The Court later “supplemented its original Colorado River
framework with additional factors for courts to weigh when deciding the appropriateness of
abstention,” including “whether ‘federal law provides the rule of decision on the merits,’ ” and
“whether the state-court proceedings adequately protect the litigants’ rights.”15 Further “a court
may take into account the possibly ‘vexatious or reactive nature of either the federal or the state
Defendants have not identified the presence of “exceptional circumstances” to warrant
abstention under the Colorado River doctrine in this case. Defendants do not argue that the first
or second Colorado River factors counsel in favor of abstention—nor does it appear that these
factors would favor Defendants. Rather, Defendants note that proceeding in the current case will
result in piecemeal litigation with potentially duplicative or inconsistent rulings, that the state
Kansas Judicial Review Act (“KJRA”) action largely mirrors this action, and that state-level
administrative and judicial litigation has been ongoing since 2015. As to the third factor, the mere
possibility of piecemeal litigation simply does not present such “exceptional circumstances” as to
D.A. Osguthorpe, 705 F.3d at 1234 (quoting Colorado River, 424 U.S. at 818-19).
Id. at 1235 (quoting Moses H. Cone, 460 U.S. at 23, 26-27).
Id. (quoting Moses H. Cone, 460 U.S. at 17 n.20).
warrant abstention under Colorado River.17 The fourth factor also does not weigh in favor of
abstention. Although the state lawsuit predates the federal lawsuit by only one day, priority should
be measured “in terms of how much progress has been made in the two actions.”18 Defendants
provide no meaningful information regarding the status of the state proceedings to justify
abstention—rather, they simply allege that this action does not have the administrative history,
litigation, discovery and argument already present in the Kanas court action.19 Further, the
additional factors identified in Moses H. Cone also do not present “exceptional circumstances” to
justify abstention. Although the parties do not address whether the state court proceedings would
adequately protect the litigants’ rights, this lawsuit involves federal claims and nothing in the
record suggests either case is vexatious in nature. The Court declines Defendants’ request to
abstain from hearing Plaintiff’s claims under the Colorado River doctrine.
Plaintiff may proceed with his ADA and Rehabilitation Act claims.
The Court will not consider materials not contained in Plaintiff’s First Amended
As an initial matter, the Court must first determine whether Defendants’ motion to dismiss
should be treated as a motion for summary judgment under Rule 12(d). While Defendants have
styled the current motion as a motion to dismiss under Rule 12(b)(6), they have wholly failed to
follow the rules applicable to such motions. Namely, that the Court consider only the facts
See, e.g., Bd. of Cty. Comm’rs of Douglas Cty. v. Hayden, 715 F. Supp. 313, 315 (D. Kan. 1989) (rejecting
request to abstain under Colorado River doctrine where state and federal complaints were filed at essentially the same
time, both lawsuits were filed in the same part of Kansas, and possibility of piecemeal litigation was not an exceptional
circumstance warranting abstention).
D.A. Osguthorpe, 705 F.3d at 1235 (quotation omitted).
Id. (noting that the docket in the state court action at issue there contained “thousands of entries” and had
been described as “one of the greatest consumers of the resources” of the state district court in many years).
contained in Plaintiff’s First Amended Complaint when determining whether Plaintiff has
adequately stated a claim upon which relief may be granted. Instead, Defendants have attached
exhibits purporting to demonstrate numerous facts not contained in Plaintiff’s First Amended
Complaint. These exhibits include an agreed stipulation of facts purportedly filed and utilized in
a state administrative hearing, a declaration by Defendant Wright, and a copy of the Petition for
Judicial Review filed in Kansas state court. Plaintiff recognizes that, with the exception of the
Wright Declaration, Defendants exhibits are part of the public record in the administrative
proceedings, and does not object to the Court’s consideration of the exhibits without converting
the Motion to Dismiss to a Motion for Summary Judgment.
The Court “may take judicial notice of publicly-available court documents and matters of
public record without converting a motion to dismiss for failure to state a claim into a motion for
summary judgment, so long as those facts are not in dispute.”20 Such judicial notice, however, is
limited to “facts which are a matter of public record.”21 Thus, while the Court may take judicial
notice of the fact that administrative proceedings occurred or that certain documents are part of the
public record, it cannot also take judicial notice of “the truth of matters asserted therein” simply
because it is part of the public record.22 That the parties seemingly stipulated to a set of facts for
purposes of the administrative hearing does not change the Court’s analysis as parties frequently
stipulate to matters for certain limited purposes.
Autry v. Motel, 2010 WL 5137541, at *2 (D. Kan. 2010) (citing Pace v. Swerdlow, 519 F.3d 1067, 107273 (10th Cir. 2008); Tal v. Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir. 2006)).
Tal, 453 F.3d at 1264 n.24 (quoting Van Woudenberg ex rel. Foor v. Gibson, 211 F.3d 560, 568 (10th Cir.
2000)) (emphasis added).
Id. (quotation omitted) (emphasis added).
The Court has discretion in determining whether to consider materials beyond the
pleadings and whether to convert a motion to dismiss to a motion for summary judgment.23 The
Court concludes that ruling on the instant motion without converting it to one for summary
judgment best serves this case. Accordingly, the Court accepts as true the well-pleaded facts
contained in Plaintiff’s First Amended Complaint and draws all reasonable inferences from them
in favor of Plaintiff, the non-moving party, and ignores the attached materials of which the Court
may not take judicial notice.
The Court denies Defendants’ arguments in favor of dismissal of Plaintiff’s ADA
and Rehabilitation Act claims.24
Plaintiff alleges that Defendants discriminated against him by failing to make reasonable
modifications to its practices and policies as applied to Plaintiff. He seeks a permanent injunction
enjoining Defendants from enforcing its practice of automatically rejecting the Plaintiff’s budget
where the proposed number of hours utilized falls below 70% of the number of PAS hours Plaintiff
is assessed as needing, and requests an award of attorneys’ fees, expenses, and costs.
Title II of the ADA, provides that “no qualified individual with a disability shall, by reason
of such disability, be excluded from participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to discrimination by any such entity.”25
“To make a viable claim under Title II,” Plaintiff must prove (1) that he “is a qualified individual
Lybrook v. Members of Farmington Mun. Sch. Bd. of Educ., 232 F.3d 1334, 1341-42 (10th Cir. 2000)
(“[T]he mere fact that the parties provided documents to the district court did not require the district court to rely on
Plaintiff’s ADA and Rehabilitation Act claims appear premised upon the same underlying allegations.
Plaintiff does not allege otherwise. Accordingly, since such claims are typically analyzed under the same legal
standard, with one difference noted below, and neither party argues otherwise, the Court will address the claims
42 U.S.C. § 12132.
with a disability;” (2) that he “was either excluded from participation in or denied the benefits of
some public entity’s services, programs, or activities, or was otherwise discriminated against by
the public entity; and (3) that such exclusion, denial of benefits, or discrimination was by reason
of [his] disability.”26 Title II’s prohibition against discrimination “applies to action that carries a
discriminatory effect, regardless of the [entity’s] motive or intent.”27
recognize “three ways to establish a discrimination claim: (1) intentional discrimination (disparate
treatment); (2) disparate impact; and (3) failure to make a reasonable accommodation.”28
Here, Plaintiff relies on the third method of establishing a discrimination claim—failure
to make a reasonable modification.29 Under Title II of the ADA, “[a] public entity shall make
reasonable modifications in policies, practices, or procedures when the modifications are necessary
to avoid discrimination on the basis of disability, unless the public entity can demonstrate that
making the modifications would fundamentally alter the nature of the service, program, or
Hans v. Bd. of Shawnee Cty. Comm’rs, 2018 WL 1638503, at *17 (D. Kan. 2018) (citation omitted). To
succeed on his Rehabilitation Act claim, Plaintiff must prove an additional element—that the KDHE receives federal
financial assistance. See 29 U.S.C. § 794(a). Plaintiff’s First Amended Complaint adequately alleges this element.
Tyler v. City of Manhattan, 857 F. Supp. 800, 817 (D. Kan. 1994) (citations omitted).
J.V. v. Albuquerque Pub. Schs., 813 F.3d 1289, 1295 (10th Cir. 2016) (citations omitted).
Although Title II uses the phrase “reasonable modification,” Courts frequently use the terms “reasonable
modification” and “reasonable accommodation” interchangeably in this context. See, e.g., Robertson v. Las Animas
Cty. Sheriff’s Dep’t, 500 F.3d 1185, 1195 n.8 (10th Cir. 2007) (“Title II’s use of the term ‘reasonable modifications’
is essentially equivalent to Title I’s use of the term ‘reasonable accommodation.’ In Title II cases, this Court has used
the terms interchangeably, referring to an individual’s request for a ‘modification’ under Title II as a request for
‘accommodation.’ ”) (citations omitted).
28 C.F.R. § 35.130(b)(7)(i). The Rehabilitation Act also requires those entities receiving federal financial
assistance to provide reasonable modifications. See Alexander v. Choate, 469 U.S. 287, 300 (1985); Barber ex rel.
Barber v. Colo. Dep’t of Revenue, 562 F.3d 1222, 1226 n.2 (10th Cir. 2009) (citations omitted).
Plaintiff alleges that Defendants failed to provide a reasonable modification of the KDHE’s
stated, yet unpublished, practice of denying budgets utilizing less than 70% of the assessed PAS
hours. He alleges that he requires the use of higher hourly rate employees with expertise in dealing
with persons having the same disabilities as him, and argues that these skilled workers accomplish
more than unskilled workers in fewer hours. The logical inference is that by paying skilled
workers, Plaintiff obtains more value for each hour of services and that although he receives fewer
hours from the skilled workers, the hours he does receive cover his needs. Although Defendants
previously approved a similar budget in 2014, Defendants denied Plaintiff’s proposed budget in
2015, as it purportedly violated an unpublished practice regarding the approval of budgets.
Plaintiff argues that Defendants failed to consider or adopt a reasonable modification of this
practice in light of his disability-specific needs.
Plaintiff has adequately pleaded a cause of action under Title II of the ADA. First, Plaintiff
alleges that he is a qualified individual within the meaning of the ADA.31 Second, Plaintiff alleges
that Defendants denied him the right to participate in or obtain benefits provided by a public entity
through the Kansas WORK program.32 And third, Plaintiff alleges that his exclusion and denial
of benefits under the WORK program was “solely by reason of his disability.” He alleges
Defendants discriminated against him by failing to make or even consider a reasonable
modification to the KDHE’s practice of not authorizing budgets utilizing less than 70% of the
A “qualified individual with a disability” is “an individual with a disability who, with or without reasonable
modifications to rules, policies, or practices . . . meets the essential eligibility requirements for the receipt of services
or the participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131(2).
A “public entity” includes any state or local government, as well as any department, agency, or other
instrumentality of a state. 42 U.S.C. § 12131(1).
Defendants assert several arguments in favor of dismissal. Defendants argue that Plaintiff
fails to state a claim upon which relief can be granted because (1) he has not identified which of
his disabilities the Defendants used to make their decisions or alleged that Defendants
discriminated against him due to his disabilities, (2) his requested budget violates applicable
federal Medicaid regulations,33 (3) his request for skilled services is unreasonable, and
(4) Defendants had final authority over approval of Plaintiff’s budget and Plaintiff agreed to this
by signing a consent form.
a. Plaintiff need not identify a specific disability Defendants used in making
their decisions and did not fail to plead discrimination due to a disability.
Defendants argue that Plaintiff fails to state a claim under the ADA because Plaintiff has
not identified the specific disability that Defendants relied on as the sole basis for their purported
discrimination. Defendants’ brief on this point lacks merit. It proceeds as follows:
[B]efore one can determine if a reasonable modification is necessary in a case,
you must first determine if there has been discrimination due to a disability. . . .
If there is no such discrimination due to a disability, there is really no need to
progress to an analysis of a reasonable modification. . . . Facially, Plaintiff
states no allegation in his First Amended Complaint that the Defendants
discriminated against the Plaintiff due to his disabilities. . . . Defendants submit
that Plaintiff’s First Amended Complaint states no ADA claim against the
Defendants since it does not identify which of the Plaintiff’s disabilities was
used by the Defendants to make their decisions in this matter.
First, a failure to provide a reasonable modification under the ADA constitutes
discrimination in and of itself.34 Regardless, Plaintiff’s First Amended Complaint specifically
Defendants address the applicability of federal regulations in several portions of their brief.
Tennessee v. Lane, 541 U.S. 509, 537 (2004) (J. Ginsberg, concurring) (recognizing that in enacting the
ADA, Congress advanced “ ‘a more comprehensive view of the concept of discrimination,’ one that embraced failures
to provide ‘reasonable accommodations’ ”) (quoting Olmstead v. L.C., 527 U.S. 581, 598, 601 (1999)); Albuquerque
Pub. Schs., 813 F.3d at 1295 (recognizing that discrimination may be predicated on a “failure to make a reasonable
accommodation”) (citations omitted).
alleges that Defendants “discriminated against him by failing to make reasonable modifications to
its practices and policies where such modifications are necessary to afford [him] the benefits of
the WORK program.” He also specifically alleges that he has been excluded from participating in
the WORK program or been denied benefits under the program “solely by reason of his disability.”
Defendants’ argument that Plaintiff’s First Amended Complaint does not allege that Defendants
discriminated against him due to his disabilities fails.
Second, Defendants cite no legal authority for their contention that Plaintiff must identify
the specific disability Defendants “used” in making their decisions in this matter. Defendants do
not elaborate on this vague assertion. To the extent this assertion suggests that Plaintiff must show
that Defendants intentionally discriminated against Plaintiff because of one of his disabilities, it
relies on a faulty premise. Defendants need not “use” any of Plaintiff’s disabilities in making their
decisions for them to have failed to provide a reasonable modification. Further, Plaintiff’s First
Amended Complaint implies that he needed certain services due to a combination of his disabling
conditions, not due to just one single condition.
b. The federal Medicaid regulations do not impose the requirements alleged
Much of Defendants’ brief focuses on their claim that Plaintiff’s proposed budget violates
federal regulations. Defendants cite several regulations in support of this assertion, including
42 C.F.R. §§ 441.464(a)(1), 441.466(b), and 441.470, and claim that the KDHE’s policies stem
from these controlling regulations. According to Defendants, Plaintiff’s proposed budget and
request for relief in this action would result in a violation of these regulations. Defendants have
failed to identify the language in the cited regulations, or any interpretation thereof, that requires
the result advanced by Defendants.
Section 441.464 requires that states assure certain requirements are met, including
necessary safeguards. It provides, in relevant part:
A state must assure that the following requirements are met:
(a) Necessary safeguards. Necessary safeguards have been taken to protect the
health and welfare of individuals furnished services under the program and to
assure the financial accountability for funds expended for self-directed services.
(1) Safeguards must prevent the premature depletion of the participant directed
budget as well as identify potential service delivery problems that might be
associated with budget underutilization.
(2) These safeguards may include the following:
Requiring a case manager, support broker or other person to monitor
the participant’s expenditures.
Requiring the financial management entity to flag significant budget
variances (over and under expenditures) and bring them to the
attention of the participant, the participant’s representative, if
applicable, case manager, or support broker.
Allocating the budget on a monthly or quarterly basis.
Other appropriate safeguards as determined by the State.
(3) Safeguards must be designed so that budget problems are identified on a
timely basis so that corrective action may be taken, if necessary.
While the regulation requires the state to adopt safeguards to prevent the premature
depletion of a participant’s budget, the regulation provides only broad principles to guide the
state’s implementation of safeguards. Nothing in 42 C.F.R. § 441.464(a)(1) requires Defendants
to deny Plaintiff’s proposed budget simply because it utilizes less than 70% of the assessed hours,
and Defendants identify no interpretation of this regulation supporting the interpretation they
propound. The regulation, rather, delegates the implementation of the necessary safeguards to the
The next regulation cited by Defendants addresses the assessment of need. It too does not
mandate the result argued by Defendants. Section 441.466 states, in full:
States must conduct an assessment of the participant’s needs, strengths, and
preferences in accordance with the following:
(a) States may use one or more processes and techniques to obtain information
about an individual, including health condition, personal goals and preferences
for the provision of services, functional limitations, age, school, employment,
household, and other factors that are relevant to the need for and authorization
and provision of services.
(b) Assessment information supports the determination that an individual requires
PAS and also supports the development of the service plan and budget.
Finally, 42 C.F.R. § 441.470, also does not require Defendants to deny Plaintiff’s proposed
budget for falling below a 70% utilization ratio. It reads, in full:
A service budget must be developed and approved by the State based on the
assessment of need and service plan and must include the following:
(a) The specific dollar amount a participant may utilize for services and supports.
(b) How the participant is informed of the amount of the service budget before the
service plan is finalized.
(c) The procedures for how the participant, or participant’s representative, if
applicable, may adjust the budget, including the following:
(1) How the participant, or participant’s representative, if applicable, may
freely make changes to the budget.
(2) The circumstances, if any, that may require prior approval before a
budget adjustment is made.
One commentator has noted that the regulations “mandate numerous protective measures” but “leave the
details to state discretion.” Bridget Haeg, The Future of Caring for Elders in Their Homes: An Alternative to Nursing
Homes, 9 NAELA J. 237, 249 (Fall 2013).
(3) The circumstances, if any, that may require a change in the service plan.
(d) The procedure(s) that governs how a person, at the election of the State, may
reserve funds to purchase items that increase independence or substitute for
human assistance, to the extent that expenditures would otherwise be made for
the human assistance, including additional goods, supports, services or
(e) The procedure(s) that governs how a person may use a discretionary amount, if
applicable, to purchase items not otherwise delineated in the budget or reserved
for permissible purchases.
(f) How participants, or their representative, if applicable, are afforded the
opportunity to request a fair hearing under § 441.300 if a participant’s, or
participant’s representative, if applicable, request for a budget adjustment is
denied or the amount of the budget is reduced.
Nothing in any of the federal regulations cited by Defendants required Defendants to reject
Plaintiff’s proposed budget or refuse to consider his request for a reasonable modification. Thus,
while the KDHE’s unwritten policy may be based on its interpretation of these regulations, it is
not mandated by the terms of these regulations. Defendants direct the Court to no rule or regulation
prohibiting Defendants from authorizing Plaintiff’s proposed budget. Accordingly, the Court
rejects Defendants’ arguments that authorizing Plaintiff’s proposed budget at the proposed
utilization rate violates federal Medicaid regulations and all arguments premised thereon.
c. Defendants have not shown that Plaintiff’s request for a reasonable
modification is unreasonable.
When analyzing the reasonableness of a requested modification, Courts analyze whether
the modification “would fundamentally alter the nature of the service, program, or activity.”36 The
Court simply cannot hold, based on the facts alleged in Plaintiff’s First Amended Complaint, that
28 C.F.R. § 35.130(b)(7)(i).
as a matter of law, Plaintiff’s requested modification would fundamentally alter the nature of the
WORK program—especially in light of Defendants’ actions in twice approving a budget utilizing
the same methodology. Defendants’ arguments that it would fundamentally alter the nature of the
WORK program rely on facts not contained in Plaintiff’s First Amended Complaint, and are
improperly presented at the motion to dismiss stage. Should Defendants wish to pursue such
arguments in the future, they should file a dispositive motion that allows the Court to properly
consider facts other than those contained in the pleadings—a motion for summary judgment, for
example—and follow the Federal Rules of Civil Procedure and local rules governing such motions.
d. The regulation cited by Defendants does not exempt them from complying
with civil rights laws, and the Court cannot conclude as a matter of law that
Plaintiff waived his rights under the ADA and Rehabilitation Act.
Defendants’ final argument for dismissal of Plaintiff’s claims requests dismissal because
Defendants have been delegated final authority of the approval of a participant’s budget under
42 C.F.R. § 441.470 and because Plaintiff signed a consent agreeing that the KDHE has the final
authority to approve a WORK budget. In essence, Defendants argue that when it comes to
approving a participant’s budget in the WORK program, Defendants have complete discretion to
do as they please, without regard to civil rights laws.
Nothing in 42 C.F.R. § 441.470 exempts Defendants from complying with other applicable
federal laws, including the ADA and the Rehabilitation Act. Thus, while Defendants may have
final authority over the approval of a budget, they may not exercise their discretion in a manner
that violates federal civil rights laws. Further, that Plaintiff signed a consent agreeing that the
KDHE has final authority for approving WORK budgets does not require dismissal of this case.
Not only does this argument again improperly introduce facts not contained in Plaintiff’s First
Amended Complaint, but it also asks the Court to hold that Plaintiff prospectively waived his rights
to be free from discrimination under the ADA and Rehabilitation Act. Defendants provide no
authority for this result, and while waivers of federal civil rights may be enforceable in certain
situations, such waivers are disfavored and analyzed under the specific circumstances presented—
an inquiry improper on the record before the Court.
The Court dismisses the individually-named Defendants.
Finally, Defendants argue that the individually-named Defendants should be dismissed
from this matter as the KDHE is the “real party in interest.” Plaintiff objects only to the dismissal
of Defendants Wright and Marney. He alleges that these Defendants personally discriminated
against Plaintiff and asserts that it is necessary to name these Defendants so that any injunction
will apply to them as named parties. Courts in this District frequently dismiss official capacity
claims against individually-named Defendants when the lawsuit also names the entity employing
the individually-named officers.37 “A suit against a government official in his ‘official capacity’
is not a suit against the official but rather is a suit against the official’s office.”38 “An official
capacity claim is ‘to be treated as a suit against the entity. It is not a suit against the official
personally, for the real party in interest is the entity.’ ”39 Here, Plaintiff has named the entity—the
KDHE—as a Defendant, and the KDHE is the real party in interest with respect to Plaintiff’s
official capacity claims. Accordingly, as Plaintiff has brought claims against the individually-
See Bushnell v. City of Chanute, 2013 WL 1137486, at *1 (D. Kan. 2013); Smith v. Bd. of Cty. Comm’rs
of Cty. of Lyon, 216 F. Supp. 2d 1209, 1219-20 (D. Kan. 2002); Burns v. Bd. of Comm’rs of Cty. of Jackson,
197 F. Supp. 2d 1278, 1296-97 (D. Kan. 2002); Lewis v. City of Topeka, 2003 WL 21212564, at *1 (D. Kan. 2003).
Bushnell, 2013 WL 1137486, at *1 (citing Brown v. Montoya, 662 F.3d 1152, 1163 n.8 (10th Cir. 2011)).
Id. (quoting Kentucky v. Graham, 473 U.S. 159, 166 (1985)).
named Defendants only in their official capacities, the Court grants Defendants request to dismiss
the individually-named Defendants.
The Court denies Defendants’ request to abstain from hearing this case under the Colorado
River doctrine, and denies Defendants’ request to dismiss Plaintiff’s ADA and Rehabilitation Act
claims under Rule 12(b)(6). Defendants’ arguments in favor of dismissal either lack legal merit
or rely on facts not contained in Plaintiff’s First Amended Complaint and not properly considered
at the motion to dismiss stage. The Court grants Defendants’ request to dismiss the individuallynamed Defendants as Plaintiff has alleged claims against these Defendants only in their official
capacities and it is unnecessary to include the individually-named Defendants in their official
capacities since the KDHE is also a Defendant.
IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss First Amended
Complaint (Doc. 23) is GRANTED IN PART and DENIED IN PART. The Court GRANTS
Defendants’ request to dismiss the individually-named Defendants from this case, and DENIES
Defendants’ remaining requests.
IT IS SO ORDERED.
Dated this 18th day of May, 2018.
ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE
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