Carpenter-Barker v. Ohio Department of Medicaid et al
Filing
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ORDER granting in part and denying in part 36 Motion for Judgment on the Pleadings. The motion is granted as to plaintiff's claim for a due process violation. The claim is dismissed with prejudice. The motion is denied on plaintiff's ADA and Rehabilitation Act claims. Signed by Judge Sandra S Beckwith on 5/20/16. (mb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Cynthia Carpenter-Barker, as Next
Friend of Megan Carpenter,
Plaintiff,
vs.
Ohio Department of Medicaid, et al.,
Defendants.
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ORDER
This matter is before the Court on the motion for judgment on the pleadings filed by
the Ohio Department of Medicaid and John McCarthy, the Director of the Ohio Department
of Medicaid. Doc. No. 36. For the reasons that follow, Defendants’ motion for judgment
on the pleadings is GRANTED IN PART AND DENIED IN PART.
I. Background
Megan Carpenter is 28 years old and suffers from a number of severe disabilities.
According to the complaint, Megan has encephalopathy, not otherwise specified, intractable
epilepsy, autism, profound mental retardation, cognitive impairment, hypothyroidism, not
otherwise specified, generalized muscle weakness, profound sensorincural hearing loss
(i.e., deafness), impaired mobility, ataxia, and sub-cortical myoclonus. First Amended
Complaint ¶ 15. Megan is unable to care for herself because of her impairments and
requires, according to the complaint, as well as her treating physician, 24-hour-a-day
nursing care. Id.
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Sub-cortical myoclonus is the most serious of Megan’s many disorders. Id. ¶ 22.
Sub-cortical myoclonus is a type of seizure characterized by muscle twitching that can
occur in any muscle group. If not identified and treated properly, a sub-cortical myoclonus
episode can progress and lead to a generalized seizure that can be life-threatening. Id.;
Franz Aff. (Doc. No. 6-1) ¶¶ 11-14.
Megan’s myoclonic and seizure activities are
unpredictable and can occur even when she is sleeping. First Amended Complaint ¶ 24;
Franz. Aff. ¶ 13. Dr. David Franz, Megan’s treating physician, has ordered round-the-clock
nursing care for Megan in order to properly treat her sub-cortical myoclonus. According to
Plaintiffs and Dr. Franz, nursing judgment is required to monitor and assess Megan for
myoclonic or other seizure activity and to determine the appropriate intervention, including
deciding what dose and combination of medications to administer.
First Amended
Complaint ¶¶ 24-32; Franz Aff. ¶ 18.
Megan is eligible for and receives services from the Ohio Department of Medicaid
(“ODM”). Defendant John McCarthy is the Director of ODM. Megan participates in
Medicaid’s Individual Options Waiver program (“the I/O Program”).
The I/O program
“provides home and community-based services to people with developmental disabilities
who would otherwise require institutionalization.” First Amended Complaint ¶ 18-19.
The dispute in this case concerns what has seemingly become an annual ritual
concerning Megan’s Medicaid services. Megan has been and is currently approved for 128
hours per week of private duty nursing (“PDN”) services through the Medicaid State Plan
to assist with and treat, among other things, her sub-cortical myoclonus. She also receives
62 hours per week of personal care services through the I/O Program. Every year,
however, ODM proposes to reduce Megan’s PDN services. The complaint describes a
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pattern in which ODM notifies Megan’s mother, Cynthia Carpenter-Baker, that it intends to
reduce Megan’s PDN services for the following year. Mrs. Carpenter-Baker then requests
a hearing to contest ODM’s proposed action. The state hearing officer sustains ODM’s
proposed action. Mrs. Carpenter then appeals the hearing officer’s decision. The hearing
officer’s decision is reversed by the administrative appeals board or, as occurred on several
occasions, the status quo is otherwise maintained.
To illustrate: In November 2010, ODM proposed to reduce Megan’s PDN services
from 128 hours per week to 72 hours per week. The basis for the ODM’s proposed
reduction in PDN hours was that Megan attended a workshop Mondays through Fridays
and she did not need skilled nursing services while she was at the workshop. The hearing
officer determined, therefore, that Megan’s needs could be met with 8 to 12 hours of PDN
services per day and that the reduction in hours would not “result in an increase in
diseases, dysfunction of a body part or significant pain and discomfort.” Doc. No. 6-5, at
3. In the subsequent administrative appeal filed by Mrs. Carpenter-Barker, ODM argued
that Megan’s medication could be administered by an I/O Waiver aide instead of a nurse.
The appeals board, however, agreed with Mrs. Carpenter-Barker that ODM failed to
demonstrate that aides were authorized to administer Megan’s medications and, if so,
whether they should be so authorized given the complexity of Megan’s medication regimen.
The board, therefore, ordered ODM to rescind its proposal to reduce Megan’s PDN hours.
First Amended Complaint ¶¶ 43-45; Doc. No. 6-6.
In November 2013, ODM proposed to reduce Megan’s PDN services from 128 hours
per week to 56 hours per week. Picking up where it left off in 2011, ODM argued that I/O
Waiver aides could administer Megan’s medications, rendering 128 hours per week of PDN
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services unnecessary. There were several remands by the appeals board to the hearing
officer for a determination whether aides were legally authorized to administer Megan’s
medications and, if so, whether the County Board of Developmental Disabilities would
permit aides to administer her medications. In June 2014, the appeals board issued a
decision which ultimately concluded that I/O waiver aides were authorized to administer
Megan’s medications and, therefore, that ODM’s proposal to reduce Megan’s PDN services
from 128 hours to 56 hours per week was appropriate. The board, however, prohibited
ODM from putting the reduction into effect until it certified that the aides had been trained
to properly administer Megan’s medications. First Amended Complaint ¶¶ 46-56; Doc. No.
6-12. Mrs. Carpenter-Barker appealed that decision to the court of common pleas in July
2014 and shortly thereafter the parties entered into a settlement agreement which left
Megan’s PDN hours in place. First Amended Complaint ¶ 60-62.
Despite this settlement agreement, ODM moved to quickly to again reduce Megan’s
PDN hours. In December 2014, ODM notified Mrs. Carpenter-Barker that it again proposed
to reduce Megan’s PDN services from 128 hours per week to 56 hours per week. Id. ¶ 63.
This last notice precipitated the instant lawsuit.
In the meantime, however, Mrs. Carpenter-Barker requested another state hearing
to contest the proposed reduction in Megan’s PDN services. A hearing was scheduled for
January 7, 2015 and ODM agreed to leave Megan’s PDN hours in place until the
administrative proceedings were completed.
Id. ¶¶ 67-68.
The hearing was later
rescheduled for January 27, 2015. Id. ¶ 70.
While those events were taking place, on January 20, 2015, Mrs. Carpenter-Barker
filed a complaint on behalf of Megan in this Court (later amended) asserting three federal
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causes of action against ODM and Director McCarthy. Plaintiff’s first cause of action arises
under 42 U.S.C. § 1983 and alleges a due process violation on the grounds that ODM’s
December 2014 notice failed to comply with 42 U.S.C. § 1396a because it did not specify
a reason for the proposed reduction in Megan’s PDN services. Plaintiff’s second and third
causes of action arise under the Americans With Disabilities Act (“the ADA”), 42 U.S.C. §
12101, et seq., and the Rehabilitation Act, 29 U.S.C. § 794, et seq., respectively, but are
essentially the same claim. Plaintiff alleges that ODM’s proposal to reduce Megan’s PDN
services risks institutionalizing Megan and, therefore, violates the ADA, the Rehabilitation
Act, and implementing regulations, all of which require that public services be provided to
disabled persons “in the most integrated setting appropriate to the needs of the qualified
individual,” i.e., the one that “enables individuals with disabilities to interact with
nondisabled persons to the fullest extent possible.”
Plaintiff then filed a motion for a preliminary injunction (Doc. No. 6) to enjoin
Defendants from reducing Megan’s PDN hours. ODM later stipulated that it would leave
Megan’s PDN services in place until the Court issues a final decision on Plaintiff’s claims.
Doc. Nos. 12, 20. Meanwhile, Plaintiff’s state hearing took place as scheduled on January
27, but required more than one day to complete. Before the second day of the hearing
could take place, Defendants agreed not to reduce Megan’s PDN hours pending the
resolution of Plaintiff’s federal lawsuit. Based on that representation, Plaintiff agreed to
voluntarily dismiss her state administrative appeal. First Amended Complaint ¶¶ 80-82.
Defendants now move for judgment on the pleadings on Plaintiff’s complaint
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. In their motion, Defendants
contend that Plaintiff’s due process claim concerning the alleged inadequacy of the 2014
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notice is now moot because the notice concerned Megan’s 2015 benefits and 2015 passed
without any change in her benefits. Defendants also argue that Plaintiff’s ADA and
Rehabilitation Act claims are barred under the claim preclusion doctrine. Defendants
contend that Plaintiff could have raised her ADA and Rehabilitation Act claims in the state
administrative proceedings but failed to do so. Defendants argue further that Plaintiff’s
dismissal of her administrative appeal constitutes a judgment on the merits which, as a
result, forecloses Plaintiff from litigating her federal claims in this lawsuit.
These issues have been fully briefed and are now ready for disposition by the Court.
II. Standard of Review
The standard of review for a Rule 12(c) motion for judgment on the pleadings is the
same as for a motion under Rule 12(b)(6) for failure to state a claim upon which relief can
be granted. Ziegler v. IBP Hog Market, Inc., 249 F.3d 509, 511–12 (6th Cir. 2001) (citing
Mixon v. Ohio, 193 F.3d 389, 399–400 (6th Cir. 1999)). “For purposes of a motion for
judgment on the pleadings, all well-pleaded material allegations of the pleadings of the
opposing party must be taken as true, and the motion may be granted only if the moving
party is nevertheless clearly entitled to judgment.” JPMorgan Chase Bank, N.A. v. Winget,
510 F.3d 577, 581 (6th Cir.2007) (internal citations and quotation marks omitted). The
factual allegations in the complaint need to be sufficient to give notice to the defendant as
to what claims are alleged, and the plaintiff must plead “sufficient factual matter” to render
the claim plausible, i.e., more than merely possible. Ashcroft v. Iqbal, 556 U.S. 662, 678-79
(2009). However, “a legal conclusion couched as a factual allegation” need not be
accepted as true on a motion to dismiss, nor are recitations of the elements of a cause of
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action sufficient. Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
III. Analysis
A. Due Process Claim
Defendants first argue that Plaintiff’s due process claim concerning the alleged
deficient December 2014 notice is moot. Specifically, Defendants argue that Plaintiff
limited her due process claim to the December 2014 notice of intent to reduce Megan’s
benefits in 2015. Defendants argue, therefore, that since 2015 passed without a change
in Megan’s PDN services, her due process claim is moot. The Court agrees.
Federal courts do not have subject matter jurisdiction to adjudicate moot claims.
McPherson v. Michigan High School Athletic Ass’n, Inc., 119 F.3d 453, 458 (6th Cir. 1997).
“The test for mootness is whether the relief sought would, if granted, make a difference to
the legal interests of the parties.” Id. In other words, “a case is moot only where no
effective relief for the alleged violation can be given.” Coalition for Gov’t Procurement v.
Federal Prison Ind., Inc., 365 F.3d 435, 458 (6th Cir. 2004).
Plaintiff’s complaint alleged that the December 2014 notice violated 42 U.S.C. §
1396a, and implementing regulations, by not providing a reason for the proposed reduction
in services. First Amended Complaint ¶ 91. Plaintiff is correct that the Medicaid statute
requires the state to provide an individual a fair hearing before denying that individual
benefits. 42 U.S.C. § 1396a(a)(3). Additionally, the regulations require the notice provided
by the state agency to contain, inter alia, the action to be taken, a statement of reasons for
the proposed action, and a citation of the regulations that support the action. 42 C.F.R. §§
431.20(a) - (c). Individuals have a private right of action via 42 § 1983 to enforce
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Medicaid’s procedural requirements. Gean v. Hattaway, 330 F.3d 758, 772-73 (6th Cir.
2003).
Logically, the remedy for a state’s violation of the requirement to provide adequate
pre-deprivation notice of its intent to reduce an individual’s Medicaid benefits would be an
order to enjoin the proposed action until the state satisfies its due process obligations or
to reinstate the individual’s benefits until they are satisfied. Cf. Kimble v. Solomon, 599
F.2d 599, 604 (4th Cir. 1979) (ordering the State of Maryland to reinstate plaintiffs’
Medicaid benefits until it provided proper notice of benefits reductions). Here, however,
assuming as the Court must that the notice sent to Plaintiff was not in compliance with the
regulations, Megan’s benefits were not reduced for the year in question.
Thus, as
Defendants accurately argue, the Court cannot provide any effective relief for the alleged
violation. Consequently, Plaintiff’s due process claim is moot.1
Plaintiff argues that this claim is not moot because the alleged violation falls under
the “capable of repetition, yet evading review” doctrine. Additionally, the Court observes
that Plaintiff’s complaint apparently alleges that ODM’s persistent efforts to reduce Megan’s
PDN hours constitute an ongoing due process violation. First Amended Complaint ¶ 93.
As Defendants point out, however, Plaintiff later stipulated that the scope of her due
process claim is limited to the adequacy of the 2014 notice. Doc. No. 36, at 33 ¶ 5 (“Ms.
Carpenter seeks a declaration from the Court that Defendants did not provide Ms.
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Additionally, since ODM did not reduce Megan’s benefits, the alleged due process
violation was arguably harmless. Cf. Gean, 330 F.3d at 773 (holding that plaintiffs failed
to show a violation of clearly established law where their medical care services were not
diminished even though the state failed to provide adequate notice that it was using
plaintiffs’ Medicare benefits to offset their prison medical expenses).
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Carpenter adequate notice regarding the 2014 reduction of her PDN hours in violation of
her due process rights under Section 1983.”). The Court concludes, therefore, that
Plaintiff’s due process claim is now limited to the adequacy of the 2014 notice. To the
extent that Plaintiff wants to Court to enjoin ODM to comply with the notice regulations in
the future,2 that claim fails to present a justiciable controversy because it is not reasonably
likely to occur that ODM will not comply with the applicable regulations in future proposed
actions. City of Los Angeles v. Lyons, 461 U.S. 95, 103-07 (1983).
Accordingly, because Plaintiff’s due process claim is moot, Defendants’ motion for
judgment on the pleadings on this claim is well-taken and is GRANTED. This claim is
DISMISSED WITH PREJUDICE.
B. ADA and Rehabilitation Act Claims
As already stated, Plaintiff claims that ODM’s proposal to reduce Megan’s PDN
hours risks institutionalizing her in violation of the integration regulations of the ADA and
the Rehabilitation Act. Defendants, however, contend that Plaintiff could have and should
have raised her federal claims in her state administrative appeal. Defendants argue that
Plaintiff then lost these claims pursuant to the claim preclusion doctrine when she
voluntarily withdrew her administrative appeal. In response, Plaintiff argues that these
claims are not precluded because she was not allowed to assert them in the state
proceedings.
A federal court must give a prior state court judgment the same preclusive effect that
it would have under the law of the state whose court issued the judgment. Heyliger v. State
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See Doc. No. 36, at 33 ¶ 6.
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Univ. & Comm. College Sys. of Tenn., 126 F.3d 849, 851-52 (6th Cir. 1997). Federal
courts, however, do not give preclusive effect to state administrative decisions on claims
arising under federal discrimination statutes that have not been reviewed by a state court.
University of Tenn. v. Elliott, 478 U.S. 788, 796 (1986); Hillman v. Shelby County Gov’t,
297 Fed. Appx. 450, 452 (6th Cir. 2008).
Although Elliott and Hillman involved
discrimination claims arising under Title VII of the Civil Rights Act of 1964, the same
principle applies to ADA and Rehabilitation Act claims. Staats v. County of Sawyer, 220
F.3d 511, 514 (7th Cir. 2000).
In this case, assuming without deciding that Plaintiff’s voluntary dismissal of her
state administrative appeal would otherwise constitute a judgment on the merits in state
courts in Ohio, her ADA and Rehabilitation Act claims were never subjected to review by
a state court. Consequently, the claim preclusion doctrine does not prohibit Plaintiff from
litigating her ADA and Rehabilitation Act claims in this Court.
Accordingly, Defendants’ motion for judgment on the pleadings on Plaintiff’s ADA
and Rehabilitation Act claims is not well-taken and is DENIED.
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Conclusion
For the reasons stated, Defendants’ motion for judgment on the pleadings is
GRANTED IN PART AND DENIED IN PART. Defendants’ motion is well-taken and is
GRANTED as to Plaintiff’s claim for a due process violation. That claim is DISMISSED
WITH PREJUDICE. Defendants’ motion for judgment on the pleadings on Plaintiff’s ADA
and Rehabilitation Act claims is not well-taken and is DENIED.
IT IS SO ORDERED
s/Sandra S. Beckwith
Sandra S. Beckwith
Senior United States District Judge
Date May 20, 2016
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