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Law v. New Mexico Human Services Department

Court of Appeals of New Mexico

May 16, 2019

AMY J. LAW, Appellant-Petitioner,

          APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY Sarah M. Singleton, District Judge.

          Senior Citizens' Law Office Michael C. Parks Albuquerque, NM for Petitioner.

          New Mexico Human Services Department John R. Emery, Deputy General Counsel Santa Fe, NM for Respondent

          Disability Rights New Mexico Alice Liu Cook Joseph P. Turk Albuquerque, NM Amicus Curiae



         {¶1} This appeal raises the issue of whether the New Mexico Human Services Department (HSD) has jurisdiction to adjudicate discrimination claims pursuant to Title II of the Americans with Disabilities Act of 1990 (ADA Title II), 42 U.S.C. § 12132 (2012), and Section 504 of the Rehabilitation Act of 1973 (Section 504), 29 U.S.C. § 794(a) (2012), in an administrative services proceeding. The Director of the Medical Assistance Division (MAD) of HSD dismissed Amy J. Law's (Petitioner) demand for a fair hearing regarding her request for what she characterizes as a "reasonable accommodation" in Medicaid transportation services, because Petitioner's case was not an "adverse action" within the meaning of HSD, 8.352.2.10 NMAC (defining adverse action), and the Human Rights Bureau of the New Mexico Department of Workforce Solutions would be a "more appropriate venue" for the case. The district court affirmed MAD's decision to dismiss. Petitioner appeals the district court's dismissal order, asserting that it was contrary to law, given MAD's obligation to prevent discrimination on the basis of disability. This Court granted certiorari to review the district court's order, pursuant to Rule 12-505 NMRA.

         {¶2} We affirm the district court's order, concluding that MAD does not have the authority to decide and adjudicate violations of ADA Title II or Section 504. In light of our conclusion, we need not address Petitioner's additional arguments that (1) she was not required to exhaust administrative remedies with the Managed Care Organization (MCO) prior to requesting a fair hearing on her claim, and (2) MAD violated her due process rights under the Fourteenth Amendment to the United States Constitution. See Hillman v. Health & Soc. Servs. Dep't, 1979-NMCA-007, ¶ 4, 92 N.M. 480, 590 P.2d 179 (declining to reach a due process argument raised in a medical services appeal based on "the principle that a court will not decide constitutional questions unless necessary to a disposition of the case").


         {¶3} Petitioner is a member of UnitedHealthcare, an MCO that contracts with HSD to administer the provision of Medicaid benefits and services to eligible members. One of the Medicaid-eligible services Petitioner uses is non-emergency medical transportation. UnitedHealthcare, as the MCO, contracts with LogistiCare to provide those transportation services, and LogistiCare makes the transportation arrangements with various providers. As relevant to this appeal, although Petitioner and her counsel made several written requests for "reasonable accommodation," only two of those documents were made part of the record on appeal, Petitioner's January 2016 letter request and her counsel's June 2016 letter request, both sent to the MCO. In her January 12, 2016 handwritten letter, Petitioner made the following request of the MCO:

One company of your choosing, dependable and timely, with decent vehicles, to provide service for all my arranged medically necessary rides; [t]he driver shall be female; [t]he same driver for all legs of trips within a day; to have an assigned driver (or a select few drivers for rotation) to provide my transportation requirement.

         In February 2016 Petitioner sent a follow-up letter to LogistiCare. The MCO's e- mail response to Petitioner stated that the MCO and LogistiCare were "unable to meet [her] request for reasonable accommodations" and asked the MCO representative to provide Petitioner with "the reimbursement mileage form, as member refuses to call LogistiCare for standard accommodations." The MCO also sent letters to Petitioner in March and April 2016 in response to two grievances she filed, [2] advising her that "LogistiCare cannot guarantee a female driver at all times," and noting that "[i]f you will allow LogistiCare to use providers other than Safe and [Care] they would have a greater opportunity to accommodate your request." In late April 2016 LogistiCare sent another letter to Petitioner, in response to her April 13, 2016 request, [3] that the MCO provide her with transportation services in which other passengers are not male. LogistiCare's response, citing to 49 C.F.R. Subtitle A, Part 38 (1991, as amended through 2014), stated that there was "no reference to reasonable accommodation standards in the ADA [Title II] related to the assignment of one transportation provider to a person, the gender of an assigned driver, other riders in the vehicle, or a requirement that the same driver be assigned to a person for all trips in one day." LogistiCare's response also explained that because "company policy prevents discrimination against any individual on the basis of. . . gender ... LogistiCare will not be able to screen transportation providers or drivers on the basis of your stated preferences[, ]" and "cannot guarantee the gender of any members with whom you may share a ride." The letter further advised Petitioner that she could "choose to take advantage of LogistiCare's gas reimbursement program [whereby a] family member or friend may receive gas reimbursement for transporting you to your health care appointments if that is a more convenient way to arrange your transportation."

         {¶4} On June 16, 2016, [4] Petitioner's counsel sent a written "reasonable accommodation request" for similar transportation-related accommodations to the MCO, "pursuant to (1) Section 504 of the Rehabilitation Act of 1973 and its regulations, 29 U.S.C. §§ 701[-796 (2018); 45 C.F.R. §§ 84.4 ..., and (2) Title II of the [ADA] and its regulations, 42 U.S.C. § 12132; 28 C.F.R. § 35.130 [(2016)]." A courtesy copy of the request was provided to HSD. Counsel requested that Petitioner "receive her transportation services exclusively from female drivers, and that she be the sole occupant of the vehicle (or at the least without male occupants)." Further, counsel's request stated that Petitioner's "disabilities are such that failure to receive that accommodation has caused and continues to cause her to miss important, medically necessary health care services." On August 18, 2016, the MCO responded to Petitioner's counsel: "The requested reasonable accommodation is denied at this time, based upon the member's failure to provide any information that would enable [the MCO] to evaluate the request to determine whether or not under the circumstances it is a reasonable request." It does not appear from the record that HSD responded separately to counsel's letter, although HSD's compliance officer was listed as a recipient of a courtesy copy of the letter.

         Administrative Proceedings

         {¶5} On August 30, 2016, Petitioner requested a fair hearing "to appeal the failure of [the MCO] and [HSD] to grant her a reasonable accommodation in Medicaid transportation services."[5] The MCO moved to dismiss the request for fair hearing and argued, without conceding that the matter was an "adverse action" for which Petitioner may request a fair hearing, that Petitioner failed to exhaust the MCO appeal process, which is a prerequisite for requesting a fair hearing. See 8.352.2.11(B) NMAC (MCO's grievance procedures). Petitioner argued in response, citing no legal authority, that "government programs-especially those receiving federal funds-for persons with disabilities are established by federal law; and are binding on both HSD and [its MCO]"; "the requirement that MCO members exhaust their internal appeals procedures as a prerequisite to seeking a Fair Hearing clearly applies only to the medical necessity of services per se;" and "a Request for a Reasonable Accommodation is a legal matter[, ] which the MCO's internal appeals procedures are ill-suited to review."

         {¶6} The Administrative Law Judge (ALJ) recommended dismissing the matter on the ground that the denial of Petitioner's "request for reasonable accommodations in obtaining non-emergency medical transportation . . . clearly does not meet the definition of an adverse action for which an administrative hearing through the Fair Hearings Bureau is available." The ALJ relied on 8.352.2.10 NMAC (defining "adverse action" to include denial or reduction of service, or failure to approve a service in a timely manner) and 8.352.2.11 NMAC (discussing the "right to an HSD administrative hearing" when MAD has taken an "adverse action") in concluding that Petitioner's claim "falls outside the authority of the Fair Hearings Bureau." MAD's Director agreed with the ALJ's conclusion and recommendation and dismissed the matter without conducting a hearing. The Director based her decision on "the fact that the case does not meet the definition of an adverse action and that a more appropriate venue would be the New Mexico Human Rights Bureau." District Court Proceedings

         {¶7} Pursuant to Rule 1-074 NMRA, Petitioner filed an appeal with the district court. She argued that under 42 C.F.R. § 431.53(a) (2009), which requires MCO's to "ensure necessary transportation for beneficiaries to and from providers[, ]" her request for a fair hearing must be granted. She further argued that denial of the requested accommodation fits within two categories of "adverse action": (1) "[t]he denial or reduction by [a beneficiary's MCO (and MAD)] of an authorized service," and (2) "the failure of MAD... or the MCO to approve a service ... in a timely manner." 8.352.2.10(A), (D) NMAC. Moreover, Petitioner argued that denial of her requested accommodation amounted to discrimination on the basis of disability in violation of Section 504, ADA Title II, and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. HSD argued in response that Petitioner "did not supply any basis or justification for her request[, ]" and the matter did not qualify as an adverse action because there was no reduction or denial of transportation services. See 8.352.2.10 NMAC. Additionally, HSD argued that "[c]laims of discrimination in public accommodations based on physical or mental disability are the exclusive province of the New Mexico Human Rights Commission under the New Mexico Human Rights Act, [NMSA 1978, §§ 28-1-1 to -15 (1969, as amended through 2007)]." Finally, the HSD argued that MAD lacked jurisdiction over Petitioner's claim because Petitioner failed to follow the grievance process for the MCO, which comports with due process requirements.

         {¶8} The district court affirmed MAD's decision, citing as supportive authority Martinez v. New Mexico State Engineer Office, 2000-NMCA-074, ¶ 27, 129 N.M. 413, 9 P.3d 657, and stating:

In the same manner [as the plaintiff in Martinez], while [Petitioner] sought a fair hearing for denial of services, clearly within the authority of HSD's administrative hearing process, she made the claim under Section 504 and ADA [Title II]. [Petitioner] has not shown any explicit language in HSD's governing statutes or rules that give it authority to decide and adjudicate violations of the ADA [Title II] or Section 504. Therefore, HSD properly dismissed the case.

         The district court did not address Petitioner's due process claim or MAD's conclusion that the New Mexico Human Rights Bureau was the proper venue for Petitioner's claim of disability discrimination.

         {¶9} Petitioner filed a motion for rehearing-arguing, in relevant part, that Martinez was misapplied because that case involved ADA Title I (employment), rather than ADA Title II (programs of public entities), and did not address section 504 or other statutes "impl[ying]" authority of state agencies to adjudicate discrimination claims-which the district ...

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