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Tall v. Maryland Department of Health and Mental Hygiene

United States District Court, D. Maryland, Southern Division

May 2, 2018

HESMAN TALL, DOREEN SHING, Plaintiffs,
v.
MARYLAND DEPARTMENT OF HEALTH AND MENTAL HYGIENE Defendant.

          MEMORANDUM OPINION

          GEORGE J. HAZEL UNITED STATES DISTRICT JUDGE.

         In this case, pro se Plaintiffs Hesman Tall and Doreen Shing challenge a determination made by Defendant Maryland Department of Health and Mental Hygiene regarding Plaintiffs' status in the Medicaid Home and Community-Based Services ("HCBS") waiver program. Plaintiff Doreen Shing was born with cerebral palsy, requires constant caregiver support, and receives funding through the HCBS program to pay for a caregiver. ECF No. 7 at 5.[1] Plaintiff Hesman Tall was hired by Shing as a "Self-Directed Personal Assistant, .lob Coach and Supportive Staff Caregiver" on June 25, 2015. Id. at 6. In 2016. Defendant informed Shing that Tall had a criminal record which was not disclosed in his required background check, and ultimately informed Shing that Defendant would not provide any further funding for Shing to employ Tall. ECF No. 7-2: ECF No. 7-3. On July 27. 2017. Plaintiffs filed their Complaint in this case, seeking injunctive relief requiring Defendant to continue providing Shing with funding to pay Tall. ECF No. 1. A number of motions are currently pending on the docket, including Defendant's Motion to Dismiss. ECF No. 30, which argues that the Court does not have proper subject-matter jurisdiction over the case. Plaintiffs have filed a Motion to Deny Defendant's Motion to Dismiss. ECF No. 33 (amended at ECF No. 42). as well as a Motion to Strike Defendant's Motion to Dismiss. ECF No. 39. Defendant has responded to both Motions. ECF No. 36; ECF No. 44. No. hearing is necessary. See Loc. R. 105.6 (D. Md. 2016). For the following reasons. Defendant's Motion to Dismiss is granted.

         I. BACKGROUND[2]

         A. Legal Background

         Before discussing the facts of this specific case, it is necessary to summarize the relevant federal and state law and regulations that Plaintiffs reference in their original and supplemented Complaint. "Medicaid is an optional, federal-state program through which the federal government provides financial assistance to states for the medical care of needy-individuals." Doe v. Kidd. 501 F.3d 348, 351 (4th Cir. 2007). ''Once a state elects to participate in the program, it must comply with all federal Medicaid laws and regulations." Id. States can opt in to a number of different Medicaid programs. Under Medicaid. state expenses for nonresidential community-based services are not automatically part of the cost sharing arrangement. Pennsylvania Prat. & Advocacy, Inc. v. Houston, 136 F.Supp.2d 353. 358 (E.D. Pa. 2001). Section 1915(c) of the Social Security Act, however, provides a waiver for states to pay for "the cost of home or community-based services" for individuals where "there has been a determination that but for the provision of such services the individuals would require the level of care provided in a hospital or a nursing facility."'42 U.S.C. § l396n(c). Section I9l5(j) provides the further option to pay for "self-directed personal assistance services . . . under which individuals, within an approved self-directed services plan and budget, purchase personal assistance and related services, and permits participants to hire, fire, supervise, and manage the individuals providing such services." 42 U.S.C. § I396n(j)(4)(A). "The Developmental Disabilities Assistance and Bill of Rights Act of 2000 . . . offers States federal money to improve community services, such as medical care and job training, for individuals with developmental disabilities." Virginia Office for Prof. & Advocacy v. Stewart. 563 U.S. 247, 249 (2011).

         B. Factual Background

         Plaintiff Doreen Shing was born with cerebral palsy and has a repetitive seizure disorder: as a result, she cannot use her left hand and requires a brace to walk. ECF No. 7 at 5. She requires constant monitoring and care to prevent injuries from seizures, fainting, and falling down. Id. Shing is a participant in Medicaid's Program for Disabled Citizens, and in 2012 she opted into the Home and Community Based Services ("HCBS") program. Id. at 6. In 2015, she opted into the Self-Directed Personal Assistant Services Program. Id. at 5-6.

         Shing and her family have known Plaintiff Hesman Tall since 2009. Id. at 6. Shing hired Tall as "a Self-Directed Personal Assistant, Job Coach and Supportive Staff Caregiver" on June 25, 2015. and his employment began on July 1, 2015. Id. In May 2016. Defendant wrote a letter to Shing. informing her that Tail's legal name was previously "Brotha Workitout." that under that name he had pleaded guilty to one misdemeanor count of Fraud and Related Activity in Connection with Identification Documents under 18 U.S.C. § 1028(a)(2) & (6), and that he had failed to disclose these facts on his mandatory background check. ECF No. 7-2. Tall had informed Shing about his former name and misdemeanor plea in 2009. and Shing wrote to Defendant and stated that she wished to keep Tall as her caregiver. ECF No. 7 at 6. In August 2016. Defendant wrote back to Shing and informed her that Defendant would no longer provide Shing with funds to pay Tall; Defendant advised Shing that she should "use [her] emergency staff to provide continuing service until a substitute employee is hired., .. You or your authorized representative may ask for a Medicaid Fair Hearing about DDA"s determinations." ECF No. 30-5 at 2.[3]

         Plaintiffs broadly reference a decision by an Administrative Law Judge ("ALJ") in their Complaint and complain of conduct by the ALJ. E.g., ECF No. 7 at 13. Defendant provides additional documentation, indicating that Plaintiffs submitted a request for an expedited Medicaid fair hearing to contest Defendant's decision. ECF No. 30-6 at 1. Defendant determined that Plaintiffs were not entitled to an expedited hearing, as Defendant was not "reducing [your] Medicaid benefits or services.*" ECF No. 30-7 at 1. On September 14. 2016. an ALJ agreed with Defendant and denied Plaintiffs' request for an expedited hearing. Id. at 2. The ALJ denied another request for an expedited hearing on October 26, 2016. and scheduled Plaintiffs' hearing for November 29. 2016. ECF No. 30-8 at 2. On February 10. 2017. another ALJ issued a determination regarding Plaintiffs" case. ECF No. 30-9. The ALJ granted a summary decision in favor of Defendant, finding that it was undisputed that Tall had been convicted of a crime of moral turpitude more recently than ten years before the date of his provider application; thus, Shing was not entitled to a waiver of the criminal background provision of the Waiver program. Id. at 6. Plaintiffs were informed that they could seek an administrative review within thirty days. or seek judicial review with a Maryland circuit court within thirty days of the date of decision. Id. at 7-8.

         Five months later, on July 27, 2017. Plaintiffs filed their Complaint with this Court, seeking injunctive relief against Defendant. ECF No. 1. Both Tall and Shing signed this initial Complaint. The Court instructed Plaintiffs to supplement their Complaint, which Plaintiffs did on October 12, 2017. ECF No. 5; ECF No. 7. A Supplement and Amendment to Motion for Injunctive Relief, was signed only by Tall, ECF No. 5, and a separate Supplement and Amended Motion for Injunctive Relief was signed only by Shing, ECF No. 7.[4] Plaintiffs allege that Defendant failed to follow a number of federal regulations. ECF No. 7 at 3. 7-11. and seek an injunction under these regulations as well as 42 U.S.C. § 1983. 42 U.S.C. § 1396(a)(8). and Title VII of the Civil Rights Act of I964.[5] Specifically, Plaintiffs complain that: Defendant waited three months to notify Plaintiffs of their decision not to provide funding for Tall, id at 8 (citing 42 C.F.R. § 431.230(a)(2)); Defendant violated Shing's right to have final decision-making authority regarding her caregiver, id at 9 (citing 42 C.F.R. § 441.450); and. Defendant failed to engage in ''Risk Management discussions" and "negotiations" with Shing. ECF No. 5 at 8 (citing 42 C.F.R. § 441.476). Plaintiffs claim that this Court has subject-matter jurisdiction because the case "involves questions of exceptional importance under the Developmental Disabilities Assistance and Bill of Rights Act.. . and 42 U.S. Code § 1983." Id. at 11. Since filing their original and supplemental Complaints. Plaintiffs have filed a number of motions for injunctive relief, a preliminary injunction, and a jury trial. See ECF Nos. 16. 19, 20, 34. 40. 41. 47. 51.[6]

         On February 28. 2018. Defendant filed a Motion to Dismiss, arguing that this Court does not have subject-matter jurisdiction over the controversy, and that "Plaintiffs* due process allegation is without merit." ECF No. 30 at 8. Defendant argues that the Social Security Act and related regulations do not create a federal cause of action: Defendant does not discuss, however. Plaintiffs' § 1983 claim. On March 5, 2018, Plaintiffs opposed Defendant's Motion to Dismiss, ECF No. 33, [7] and on March 15. 2018, they filed a Motion to Strike Defendant's Motion to Dismiss, ECF No. 39.

         II. STANDARD OF REVIEW

         As Defendant argues both that the Court does not have subject-matter jurisdiction and that the due process allegation is without merit, the Court addresses the standards of review for both a 12(b)(1) and 12(b)(6) motion to dismiss.

         A. 12(b)(1) Motion to Dismiss

         Article III courts are courts of limited jurisdiction, possessing only the authority granted by the Constitution and Congress. Scott v. Cricket Commc'ns, LLC. 865 F.3d 189. 194 (4th Cir. 2017). Congress granted the Court "original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331.[8] Generally, whether any of a plaintiffs claims "arise under" federal law is determined by application of the well-pleaded complaint rule. Ali v. Giant Food LLC/Stop & Shop Supermarket Co.. LLC. 595 F.Supp.2d 61 8, 621 (D. Md. 2009) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust. 463 U.S. 1 (1983)). According to the well-pleaded complaint rule, "federal jurisdiction exists only when a federal question is presented on the face of the plaintiffs properly pleaded complaint." Caterpillar Inc. v. Williams. 482 U.S. 386, 392 (1987). "For statutory purposes, a case can "aris[e] under' federal law in two ways." Gunn v. Minion, 568 U.S. 251, 257 (2013). First, and most commonly, "a case arises under federal law when federal law creates the cause of action asserted." Id. Second, where a case relies on a state cause of action, the case may still "arise under" federal law where the "state-law claim necessarily raise[s] a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities." Id. at 258.

         When moving to dismiss for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure l2(b)(1). the plaintiff bears the burden of proving that subject-matter jurisdiction properly exists in federal court. See Demetres v. E, W. Const.. Inc.. 176 F.3d 271. 272 (4th Cir. 2015). In a 12(b)(1) motion, the court '"may consider evidence outside the pleadings" to help determine whether it has jurisdiction over the case before it. White Tail Park. Inc. v. Sfroube. 413 F.3d 451, 459 (4th Cir. 2005). The court should grant the 12(b)(1) motion "'only if the material jurisdictional facts arc not in dispute and the moving party is entitled to prevail as a matter of law."1' Quigley v. United States, 927 F.Supp.2d 213. 217 (D. Md. 2012) (quoting Richmond Frederickshurg & Potomac R. Co. v. United States, 945 F.2d 765. 768 (4th Cir. 1991)).

         A challenge to subject-matter jurisdiction under Rule 12(b)(1) may proceed "in one of two ways": either a facial challenge, asserting that the allegations pleaded in the complaint are insufficient to establish subject-matter jurisdiction, or a factual challenge, asserting "* "that the jurisdictional allegations of the complaint [are] not true.' " Kerns v. United States,585 F.3d 187, 192 (4th Cir. 2009) (citation omitted) (alteration in original). In a facial challenge, ""the facts alleged in the complaint are taken as true, and the motion must be denied if the complaint alleges sufficient facts to invoke subject-matter jurisdiction." Kerns, 585 F.3d at 192; accord Clear Channel Outdoor. Inc.. 22 F.Supp.3d at 524, In a factual challenge to subject-matter jurisdiction, "'the plaintiff bears the burden of proving" that subject-matter ...


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