By Jeffrey H. Brochin, J.D.
A Medicaid beneficiary who applied for funding for her self-directed personal assistance services (PAS) caregiver under the Home and Community-Based Services (HCBS) waiver program was not entitled to funding for the PAS employee after it was discovered that the employee had failed to disclose his criminal background, a federal district court on Maryland has ruled. Although the beneficiary and caregiver raised a § 1983 claim resulting in their complaint arising under federal law, they did not plead sufficient factual matter to state a claim to relief that was plausible on its face (Tall v. Maryland Department of Health and Mental Hygiene, May 2, 2018, Hazel, G.).
Background. A Medicaid beneficiary who was born with cerebral palsy and required constant caregiver support, received funding through the HCBS program to pay for a caregiver. She hired an employee as her "Self-Directed Personal Assistant, Job Coach and Supportive Staff Caregiver" in June 2015, and in 2016, the Maryland Department of Health and Mental Hygiene (DHMH) informed her that the employee had a criminal record involving fraud that was not disclosed in his required background check, and that therefore DHMH would not provide any further funding for her to employ him. In July 2017, the beneficiary and caregiver filed their pro se complaint seeking injunctive relief requiring continuing funding. DHMH filed their motion to dismiss, which for the reasons stated below was granted.
Subject-matter jurisdiction arguments. The plaintiffs asserted that the court had subject-matter jurisdiction because it involved "questions of exceptional importance under the Developmental Disabilities Assistance and Bill of Rights Act." DHMH countered that the court was without subject-matter jurisdiction because the claimed due process allegation was without merit, and that the Social Security Act and related regulations did not create a federal cause of action; DHMH did not, however, address the § 1983 claim.
Section 1983 claim. The court noted that the lawsuit was regarding a federal spending scheme, and that DHMH regarded the relied-upon federal regulations as "direction" or "guidance" to states that want to administer self-directed PAS through their state plans, but that the regulations did not create a private cause of action. The court rejected the DHMH position and concluded that the complaint indeed raised a § 1983 claim and that it therefore arose under federal law; they accordingly denied that part of the motion to dismiss.
An unambiguous benefit. The court distinguished between the pleading of a federal law and a federal right: in order to seek redress through § 1983, a complaint must assert a violation of a federal right and not merely a violation of federal law; if there is no violation of a federal right, there is no basis for a claim under § 1983. In order to determine whether a particular statutory provision creates a federal right, the U.S. Supreme Court has established a three-factor test which requires a showing that (1) Congress must have intended that the provision in question benefit the plaintiff; (2) the plaintiff must demonstrate that the right purportedly protected by the statute is not so "vague and amorphous" that its enforcement would strain judicial competence, and (3) the statute must unambiguously impose a binding obligation on the states.
The court found that the federal regulations relied upon in the complaint created a federal right which may give rise to a § 1983 claim because the provision demonstrates an intent to benefit individuals by giving them control over their personal care, and such benefit was not ambiguous or amorphous. Therefore, the regulations conferred a privately enforceable right.
Lack of plausible allegations. Having concluded that some of the regulations relied upon in the complaint created a federally enforceable right, the court next addressed the issue of whether the beneficiary and caregiver plausibly pleaded a claim on which relief could be granted. The court noted that Maryland’s self-directed PAS rules required that employees must not have been convicted of "a felony or crime involving moral turpitude or theft," and that it was not in dispute that the caregiver had pleaded guilty to a misdemeanor of alteration of documents in September of 2009. Accordingly, the various claims regarding the beneficiary’s right to self-direct her care and the employee’s right to due process failed to state a claim under Maryland’s rules because the caregiver was statutorily ineligible to continue being employed in the self-directed PAS program given his conviction.
The case is No. 8:17-cv-02120-GJH.
Attorneys: Hesman Tall, pro se. Robert David McCray, Office of the Attorney General, for Maryland Department of Health and Mental Hygiene.
Companies: Maryland Department of Health and Mental Hygiene
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