United States District Court, D. Maryland, Southern Division
J. HAZEL UNITED STATES DISTRICT JUDGE.
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
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
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
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.
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.
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.
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. 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. 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.
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,  and on March 15.
2018, they filed a Motion to Strike Defendant's Motion to
Dismiss, ECF No. 39.
STANDARD OF REVIEW
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
12(b)(1) Motion to Dismiss
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. 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.
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)).
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