United States District Court, N.D. Indiana, South Bend Division
SHELLY MOORE, Individually and as Class Representative, Plaintiff,
SECRETARY, INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION, in the Secretary's Official Capacity; INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION, an Agency of the State of Indiana; and ADVANTAGE HEALTH SOLUTIONS, INC., a Business, Defendants.
OPINION & ORDER
P. Simon JUDGE, UNITED STATES DISTRICT COURT
Moore is a Medicaid recipient and two-time breast cancer
survivor living in Indiana. In 2013, she had the awful
experience of being diagnosed with breast cancer for the
third time. Moore's oncologist recommended that she have
her ovaries removed and requested prior approval for the
surgery (called an “oophorectomy”) from Medicaid.
When the request was denied, Moore's doctor sent a
written request asking the Family and Social Services
Administration (“FSSA”), which administers the
Medicaid program in Indiana, to reconsider its denial.
However, the FSSA did not treat the request as an appeal of
the denial and so did not conduct an administrative review of
its denial or offer Moore a hearing.
should be a relatively straight-forward case has been
transformed into a legal colossus. The First Amended
Complaint alleges a putative class action against the Indiana
Family and Social Services Administration (and its
Secretary), as well as Advantage Health Solutions, a private
company that contracts with FSSA to assist in administering
the Indiana Medicaid program. Moore alleges breaches of
federal and state contracts related to Medicaid,
discrimination in violation of the Americans with
Disabilities Act and the Rehabilitation Act, violation of the
Medicaid Act, and infringement of Moore's rights to due
process and equal protection under the Fourteenth Amendment
of the U.S. Constitution. The defendants have moved to
dismiss on a variety of grounds pursuant to Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6). In addition, the FSSA
has moved for denial of class certification. For the reasons
set out below, the FSSA's motion is granted in part and
denied in part, and Advantage's motion is granted.
is a federal program that allows states to subsidize medical
assistance to low-income individuals and families.
See 42 U.S.C. § 1396, et. seq.; Bontrager
v. Ind. Family & Social Servs. Admin., 697 F.3d 604,
604 (7th Cir. 2012). In Indiana, the FSSA
administers Medicaid, and it has contracted with defendant
Advantage Health Solutions, Inc. to perform certain
Medicaid-related tasks. (DE 29 at 3.) Though the complaint
claims that Moore does not have access to Indiana's
contract with Advantage, this is puzzling since it is
publicly available on the state's webpage. See
Prof. Servs. Contract; Ind. FSSA Contract with Adv. Health
Sols., Inc., Dec. 9, 2013, https://fs.gmis.
in.gov/IDOAcontracts/public/74520-000.pdf. Among other
things, it requires Advantage to review requests for
preapproval of medical services, decide whether Medicaid will
cover those services, and notify the provider and the member
when a service will not be covered. Id. at Ex. 1 -
Scope of Work, §§ 1.1, 1.3 ¶ 29.
complaint does a remarkably poor job of explaining what
happened when Moore's doctor sought prior authorization
for Moore's oophorectomy. What follows are the parts of
the story that I could glean from the scant facts alleged in
the complaint. And, of course, for present purposes, I take
these allegations to be true.
is a Medicaid recipient who was diagnosed with breast cancer
twice before. (DE 29 ¶ 5.) Each time, she underwent
radiation and chemotherapy and was told that the cancer was
in remission. (Id.) In 2013, she was diagnosed with
breast cancer a third time, and her oncologist advised her to
have her ovaries removed because the cancer is
hormone-receptive, which means that hormones released by the
ovaries cause it to grow. (Id. ¶¶ 5, 12,
15.) The oncologist sent a request for prior approval of the
surgery to Medicaid on Moore's behalf, but the request
was denied “some time in mid-2013.” (Id.
¶ 12.) The doctor then sent a “written request . .
. that FSSA reconsider its decision denying the request for
surgery[, ]” but the FSSA “did not treat the
oncologist's request as an appeal of its decision to deny
the surgery and did not provide an agency administrative
review or hearing of the denial[.]” (Id.)
Although it would have been helpful to my consideration of
this case, the complaint does not quote, summarize, or
incorporate the documents Moore's doctor sent to Medicaid
or the notice(s) he received back.
complaint is by turns ambiguous and internally inconsistent,
but I read it to allege a breach of contract claim and claims
under the ADA, the Rehabilitation Act, and the Medicaid Act
against the FSSA (Counts One, Three, Four, and Eight); a
breach of contract claim and claims under the ADA and the
Rehabilitation Act against Advantage (Counts Two, Five, Six,
and Seven); and due process and equal protection claims
against all three defendants (Count Nine). The complaint
purports to bring all these claims on behalf of the following
[A]ll past, current and future Indiana Medicaid recipients
and applicants with disabilities (A) in need of accurate
evaluations of their medical conditions for which Class
members seek services or treatment recommended by the Class
members treating physicians, doctors, or other medical
providers; (B) but did not or will not receive accurate
evaluations of their medical conditions; (C) and who suffered
or are likely to suffer injuries as a result of the actions
or inaction of the Secretary, FSSA, or Advantage.
(Id. ¶ 27.)
survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), “a complaint must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
marks and citations omitted); accord Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). I must accept as true
all factual allegations in the complaint and draw all
reasonable inferences in favor of the plaintiff, but I am not
required to accept “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements.” Iqbal, 556 U.S. at 678.
“[L]egal conclusions can provide the complaint's
framework, [but] they must be supported by factual
allegations . . . [that] plausibly give rise to an
entitlement to relief. Id. at 679.
the breach of contract claims alleged in Counts One and Two
derive from the other claims alleged in the complaint, I will
address them last.
Claims against the FSSA (Counts Three and Four)
Three and Four of the complaint allege that FSSA denied
Medicaid services and benefits and discriminated against her
on the basis of a disability in violation of Title II of the
ADA and section 504 of the Rehabilitation Act. (DE 29
¶¶ 42-43, 49-50.) Title II provides that “no
qualified individual with a disability shall, by reason of
such disability, be excluded from participation in or be
denied the benefits of the services, programs, or activities
of a public entity, or be subjected to discrimination by any
such entity.” See 42 U.S.C. § 12132.
Section 504 of the Rehabilitation Act is substantially
similar. See 29 U.S.C. § 794(a). Indiana argues
that these discrimination claims should be dismissed for
failure to state a plausible claim on grounds that the
complaint only alleges that Moore has cancer, which by
itself, does not constitute a disability under the statutes.
(DE 38 at 8.) I disagree.
the ADA and the Rehabilitation Act define
“disability” as “a physical or mental
impairment that substantially limits one or more major life
activities of such individual[.]” See 42
U.S.C. § 12102; 29 U.S.C. § 705 (9)(B). Indiana may
be right that cancer isn't necessarily a disability, but
the complaint alleges other physical impairments.
Specifically, it alleges that Moore has “neuropathy in
her fingers and toes that prevents her from manipulating her
fingers well and causes her to lose her balance” and
that these problems were “severe enough to make her
eligible for federal Social Security disability
benefits.” (See DE 29 ¶ 5.) Although a
disability determination by the Social Security
Administration doesn't necessarily mean one is disabled
under the ADA (and, by extension, Rehabilitation Act), it
does provide additional support for the notion that
Moore's cancer “substantially limits one or more
[of her] major life activities.” See Lawson v. CSX
Transp., Inc., 245 F.3d 916, 923 (7th Cir. 2001)
(citations omitted). All this taken together is more than
sufficient to allege a disability within the meaning of the
ADA and the Rehabilitation Act.
for Moore, that's not the end of the matter because
Indiana has also moved to dismiss these claims on grounds
they don't plausibly allege discrimination because
of a disability. (DE 38 at 8-9.) This is a more
persuasive argument-and one Moore's brief utterly fails
to address. A plausible claim under either Title II of the
ADA or section 504 of the Rehabilitation Act requires not
just allegations that Moore had a disability, but that
“because of her disability, she was denied the benefits
. . . or was otherwise subjected to discrimination. . .
[which] means that the disability was the immediate cause of
the discrimination or denial of benefits.” L.W. by
Bridgett J. v. Ill. Dep't. Children & Family
Servs., No. 13-cv-8463, 2015 WL 3476313, at *3 (N.D.
Ill. June 1, 2015) (citing 42 U.S.C. § 12132; 29 U.S.C.
§ 794(a)); see also Wisc. Comty. Servs., Inc. v.
City of Milw., 465 F.3d 737, 752 (7th Cir.2006)
(“Title II case law . . . requires the plaintiff to
show that, “but for” his disability, he would
have been able to access the services or benefits
counts fall short of this requirement. The complaint parrots
regulatory language promulgated for the purposes of
implementing the ADA. (Compare DE 29 ¶¶
43, 50, and 28 C.F.R. § 35.130(b)(1)(v); DE 29
¶¶ 45, 52, and 28 C.F.R. §
35.130(b)(8); DE 29 ¶¶ 44, 51, and 28
C.F.R. § 35.103(b)(3).) But regurgitated regulatory
language cannot be the sum total of a plausible claim.
Instead, it must be accompanied by factual allegations that
support the elements of the claim and therefore give rise to
a plausible inference that the plaintiff is entitled to
relief. See Iqbal, 556 U.S. at 679. For this reason,
Counts Three and Four will be dismissed without prejudice,
and Moore will be given an opportunity to file a second
amended complaint if she wants to try to cure the
deficiencies described above.
Claims Against Advantage (Counts ...