A-1-CA-36283 | Omnilex

Full text

OCR transcription for search; preserved printed pages are authoritative

—

1]
12
13
14
15

16
17
18
19
20
21
22
23
24

Court of Appeals of New Mexico
Filed 5/16/2019 11:01 AM

Mn E24

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXI

Opinion Number:

Filing Date: MAY 16, 2019
No. A-1-CA-36283

AMY J. LAW,
Appellant-Petitioner,
v.

NEW MEXICO HUMAN SERVICES
DEPARTMENT,

Appellee-Respondent.

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

co Maki

Reynolds

10
11
12
13
14
15
16
17
18
19

OPINION

M. ZAMORA, Chief Judge.

{1}, This appeal raises the issue of whether the New Mexico Human Services
Department (HSD) has jurisdiction to adjudicate discrimination claims pursuant to
Title I 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 thé 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.

g} 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

10
11
12
13
14
15
16
17

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”).
BACKGROUND!

3} Petitioner isa 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

IThe Court’s policies and procedures require that the factual and procedural
background are verified in the case record prior to signing and filing of an opinion.

SA HW

10
i
12
13
14
15
16
17
18

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,” advising her that “LogistiCare cannot guarantee a female driver at all times,”
and noting that “ile 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,’ 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

*Petitioner’s March 10, 2016 and March 24, 2016, grievances are referenced
in the MCO’s letters to Petitioner, but are not included in the record on appeal.

3Petitioner’s April 13, 2016, letter to the MCO is referenced in LogistiCare’s
letter to Petitioner, but is not included in the record on appeal.

10
1]
12
13
14
15
16
17

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.” —

43 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

‘The May 23, 2016, letter from Petitioner to the MCO, which is referenced in
counsel’s June 16, 2016, letter to the MCO, was not made part of the record on
appeal.

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

53} 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.”> The MCO moved to dismiss the request for fair hearing

5 Petitioner states the reason for the administrative appeal somewhat
differently in her briefing in this Court: “to contest [the] MCO’s denial of her request
for a reasonable accommodation in access[ing] Medicaid services, and the [HSD’s]
failure to [respond to] her complaints about her need for the [requested] reasonable
accommodation.” (Emphases added.) Because neither party argues that a different
standard should apply to each alleged action or respective party, we analyze both
actions in the same manner for purposes of this appeal.

10
11
12
13
14
15
16
17
18
19

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.”

10
11
12
13
14
15
16
17
18
19

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

10
11
12
13
14
15
16
17
18
19
20
21

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

10
11
12
13
14
15
16
17
18
19

discrimination claims—which the district court denied. Petitioner filed a petition for
writ of certiorari with this Court, which we granted.

DISCUSSION

410} Our review of an administrative decision appealed to the district court is by
writ of certiorari. Georgia O'Keeffe Museum v. Cty. of Santa Fe, 2003-NMCA-003,
q 25, 133 N.M. 297, 62 P.3d 754; see Rule 12-505(A)(1) NMRA (stating that the
Court of Appeals reviews district court decisions that address administrative
proceedings pursuant to Rule 1-074 or NMSA 1978, Section 39-3-1.1 (1999)); see
Rule 12-505(B) (“A party ... may seek review of the [district court’s] order by filing
a petition for writ of certiorari with the Court of Appeals[.]”). We review the decision
of the district court acting in its appellate capacity. See § 39-3-1.1(E) (“A party to
the appeal to district court may seek review of the district court decision.” (emphasis
added)).

a1}. “This Court applies the same statutorily defined standard of review as the
district court.” Miller v. Bd. of Cty. Comm'rs, 2008-NMCA-124, ¢ 16, 144 N.M.)
841, 192 P.3d 1218 (alteration, internal quotation marks, and citation omitted). “The
district court may reverse an administrative decision only if it determines that the
administrative entity acted fraudulently, arbitrarily, or capriciously; if the decision
was not supported by substantial evidence in the whole record; or if the entity did

not act in accordance with the law.” Jd. (alteration, omission, internal quotation

10
ul
12
13
14
15
16

marks, and citation omitted). “A ruling by an administrative agency is arbitrary and
capricious if it is unreasonable or without a rational basis, when viewed in light of
the whole record.” Rio Grande Chapter of the Sierra Club v. N.M. Mining Comm’n,

2003-NMSC-005, 4 17, 133 N.M 97, 61 P.3d 806. We, however, will not defer to

the agency’s or the district court’s conclusions of law, which are reviewed de novo. |
Id.
{12} When presented with a question of statutory construction, our Supreme Court

observes the following general principles: (1) “the plain language of a statute is the
primary indicator of legislative intent” and it gives “the words used in the statute
their ordinary meaning unless the [Legislature indicates a different intent[;]” (2) the
Court “will not read into a statute or ordinance language which is not there,
particularly if it makes sense as written[;]” (3) the Court will “give persuasive weight
to long-standing administrative constructions of statutes by the agency charged with
administering them|[;]” and (4) when “several sections of a statute are involved, they |
must be read together so that all parts are given effect.” High Ridge Hinkle Joint
Venture v. City of Albuquerque, 1998-NMSC-050, 75, 126 N.M. 413, 970 P.2d 599

(internal quotation marks and citations omitted).

10
1
12
13
14
15
16
17
18
19

I. Non-Discrimination Principles of ADA Title II and Section 504 Apply to
MAD and Its Provision of Necessary Transportation for Beneficiaries

133. The Medicaid program, established by Title XIX of the Social Security Act,
42 U.S.C. §§ 1396 to 1396w-5 (2012), is a joint federal-state program created to
provide “medical assistance” to needy families and individuals. 8.200.400.9 NMAC.
States that have elected to participate in the Medicaid program, including New
Mexico, must comply with federal statutes and regulations. See 42 U.S.C.
§ 1396a(a)(1), (10)(A); NMSA 1978, § 27-2-12(A) (2006). HSD is “charged with
the administration of all the welfare activities of the state[.]” NMSA 1978, § 27-1-3
(2007). MAD, a division within HSD, is the state agency responsible for
administering the medical assistance programs. See § 27-2-12; 8.200.400.9 NMAC.
44; As relevant here, the federal Medicaid statute defines “medical assistance” to
include non-emergency medical transportation. 42 U.S.C. § 1396a(70); see 42
C.F.R. § 431.53(a) (2009) (requiring state plan to “[s]pecify that the Medicaid
agency will ensure necessary transportation for beneficiaries to and from
providers”). Consistent with federal regulations, New Mexico’s Medicaid program
covers expenses for transportation services that the MAD “determines are necessary
to secure covered medical -. . . examinations and treatment for . . . [an] eligible
recipient.” 8.324.7.9 NMAC (citing 42 CF.R. § 440.170 (2016) (defining

transportation services)).

10
11
12
13
14
15

{15} Petitioner argues that federal law generally prohibits a state agency from
discriminating against an individual on the basis of disability, and that this
prohibition applies in the context of fulfilling the obligation to provide non-
emergency medical transportation.® The law clearly supports Petitioner’s argument.
See State, ex rel. Children, Youth & Families Dep’t v. John D., 1997-NMCA-019,
4 15, 123 N.M. 114, 934 P.2d 308 (“The legislative history of the ADA [Title]
indicates the purpose of the ADA’s Title IJ was to extend the non-discrimination
policy contained in the Rehabilitation Act (which applied only to entities receiving
federal funding) to all actions of state and local governments.”). She further argues
that discrimination prohibited by ADA Title II and Section 504 extends to a denial
of the ability to benefit from the program in a manner that is not as effective as, or
more limited than, that enjoyed by others utilizing the program. See 45 C.F.R.
§ 84.4(b)(i)-(iii), (vii) (2005) (Section 504); 28 C.F.R. § 35.130(b)(1)(i)-(iii) (ADA

Title ID).

{16 Specifically, ADA Title II provides that “no qualified individual with a

disability shall, by reason of such disability, be excluded from participation in or be

°We need not and do not reach the question of whether the MCO or
LogistiCare are state actors for purposes of being bound by the statutes and
regulations applied to HSD because “a fair hearing is guaranteed by an extensive
regulatory and statutory framework which does not incorporate a state action
requirement.” Hyden v. Human Servs. Dep’t, 2000-NMCA-107, { 15, 130 N.M. 19,
16 P.3d. 444. —

18
19

denied the benefits of the services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.” 42 U.S.C. § 12132; see 28 C.F.R.
§ 35.130(b)(7)(i) (requiring public entities to “make reasonable modifications in
policies, practices, or procedures when the modifications are necessary to avoid
discrimination on the basis of disability”). In this same vein, Section 504 states: “No
otherwise qualified individual with a disability . . . shall, solely by reason of her or
his disability, be excluded from the participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity receiving Federal financial
assistance[.]” 29 U.S.C. § 794(a); see 29 C.F.R. § 32.4 (2003); 45 C.F.R. § 84.4
(2005); 34 C.F.R. § 104.51 (2000). Because neither party argues that the non-
discrimination principles of ADA Title IJ and Section 504 require distinct analysis
in this case, we will address them together. See Cohon ex rel. Bass v. N.M. Dep’t of
Health, 646 F.3d 717, 726 (10th Cir. 201 1) (“Because the language of ADA Title II
and the Rehabilitation Act is substantially the same, we apply the same analysis to
both.” (alteration, internal quotation marks, and citation omitted)). We now turn to
the question of whether MAD has the authority to adjudicate claims asserted
pursuant to ADA Title II and Section 504 in its administrative fair hearings.

II. Our Legislature Did Not Grant MAD the Authority to Adjudicate Claims
Brought Pursuant to ADA Title II and Section 504

{17} - Petitioner contends that MAD discriminated against her based on her

disability when she was refused benefits by the MCO for non-emergency
13 .

transportation to and from medical providers because the MCO failed or refused to
accommodate her specific requests. See 42 C.F.R. § 431.53(a). HSD argues that
MAD is authorized to determine whether a reduction or denial of services or failure
to approve a service in a timely manner, constituting an adverse action, was
improperly or unreasonably taken against Petitioner, but does not have the authority
to adjudicate whether an action was taken in violation of ADA Title II or Section
504,

183} Federal Medicaid law provides that, where a “claim for medical assistance
under the plan is denied or not acted upon with reasonable promptness,” a state is
required to “provide for granting an opportunity for a fair hearing before the [HSD].”
42 U.S.C. § 1396a(a)(3); see 42 C.F.R. § 431.220(a)(1) (2016) (“The State agency
must grant an opportunity for a hearing to . . . [a]ny individual who requests it
because he or she believes the agency has taken an action erroneously, denied his or
her claim for eligibility or for covered benefits or services, or issued a determination
of an individual’s liability, or has not acted upon the claim with reasonable
promptness[.]”); 42 C.F.R. § 431.201 (2016) (“For purposes of this subpart: ‘Action’
means a termination, suspension of, or reduction in covered benefits or services, or
a termination, suspension of, or reduction in Medicaid eligibility or an increase in

beneficiary liability[.]”).

£19} New Mexico law implementing the Medicaid program provides that a
“recipient of assistance or services under any provision of the Public Assistance Act
. . . May request a hearing in accordance with regulations of the board if: (1) an
application is not acted upon within a reasonable time after the filing of the
application; (2) an application is denied in whole or in part; or (3) the assistance or
services are modified, terminated or not provided.” NMSA 1978, § 27-3-3 (1991);

see 8.352.2.10 NMAC (defining “adverse action” as including the two theories a

petitioner relies on, i.e., denial or reduction of service, and failure to approve a

service in a timely manner); 8.352.2.11 NMAC (providing that MAD must grant an
administrative hearing, pursuant to 42 C.F.R. § 431.220(a) and Section 27-3-3 when
MAD has taken, or intends to take, an adverse action against a claimant as defined
in 8.352.2.10 NMAC).

20} HSD argues that in order for MAD to have authority to adjudicate Petitioner’s
claims, they must fall within one of the.types of matters listed in 8.352.2.10 NMAC,
Section 27-3-3, or 42 C.F.R. § 431.220(a), which they do not. We agree with HSD.
Petitioner’s argument rests on the assumption, for which Petitioner cites no law, that
HSD’s obligation to comply with the requirements of Section 504 and ADA Title I
equates with an obligation to “enforce” those requirements by adjudicating claimed
violations of those requirements in an HSD fair hearing. “Compliance” and

“enforcement” are distinct concepts. Compare Webster’s New Int’l Dictionary

(unabridged) 465 (3d ed. 2002) (defining “compliance” as “conformity in fulfilling
formal or official requirements” or “cooperation promoted by official or legal
authority or conforming to official or legal norms”), with Black’s Law Dictionary
645 (10th ed. 2014) (defining “enforcement” as “[t]he act or process of compelling
compliance with a law, mandate, command, decree, or agreement”). And a statutory
obligation to comply with federal anti-discrimination law does not itself constitute
authority to enforce that law through adjudication of claims arising under that law.

21}. Looking to the plain language of 8.352.2.10 NMAC (defining adverse action),
decisions regarding the manner or circumstances of a Medicaid beneficiary’s non-
emergency medical transportation do not in and of them themselves amount to a
reduction, termination, or refusal to provide medically nevessary services, as they
are properly within the State’s authority. See Alexander v. Choate, 469 US. 287,
303 (1985) (“The federal Medicaid Act. . . gives the [s]tates substantial discretion
to choose the proper mix of amount, scope, and duration limitations on coverage, as
long as care and services are provided in ‘the best interests of the recipients.’ ”
(quoting 42 U.S.C. § 1396a(a)(19)). The | MCO was prepared to provide
transportation to Petitioner or, alternatively, was willing to reimburse transportation
expenses incurred by family members or friends. But Petitioner refused, insisting on
the provision of a female driver, the same driver for all legs of a given trip, and the

absence of any male passengers in the vehicle transporting her. The MCO informed

her that it would not be possible to uniformly comply or to guarantee compliance
with her stated conditions, and advised of its own countervailing concerns that
accommodating Petitioner’s requests might necessitate discrimination against its
drivers or would-be passengers. We agree that the claims asserted by Petitioner do
not arise out of an adverse action contemplated under State law and corresponding
regulations, as they do not involve a denial or reduction in services or failure to
approve a service in a timely manner. See Section 27-3-3: 8.352.2.10 NMAC.

023 In Martinez, we considered “whether the New Mexico State Personnel Board
is [authorized] to adjudicate statutory disability discrimination claims in
administrative just cause termination proceedings.” Martinez, 2000-NMCA-074,
4 1. In answering that question in the negative, we determined that “[t]he [Personnel]
Board is a public administrative body created by statute [and is t]herefore . . . limited
to the power and authority expressly granted or necessarily implied by statute, which
expressly defines its duties.” Jd. § 22 (citations omitted). This Court held that neither
the statute nor the regulations promulgated under the Personnel Act by the Board,
nor the Human Rights Act, “expressly grant[ed] the Board the power to resolve
claims of discrimination raised by an employee challenging an agency’s adverse
personnel action.” Jd. § 24. This Court concluded that had the Legislature intended
a sharing of authority between the Personnel Board and the Human Rights

Commission, it would have expressly conferred it, or established a procedural

10)

method for doing so that would not conflict with the authority of the Human Rights
Bureau. Id. J 26. “In the absence of explicit language in the Personnel Act and the
Board Rules, we conclude that the authority to decide whether a violation of the
ADA [Title II] or the [Human Rights Act] has occurred rests exclusively with, those
administrative agencies, such as the EEOC and the [New Mexico Human Rights
Commission], who have express statutory authority to adjudicate such claims and
have specialized knowledge and expertise in preventing and remedying unlawful
discrimination.” Id. § 27.

23} Similarly, in this case, neither the Public Assistance Act nor the Medicaid Act
relied on by Petitioner expressly grants MAD the power to resolve discrimination
claims raised by a Medicaid beneficiary challenging an agency’s denial or inaction
in response to a request for accommodation. Nor is any such power vested in MAD
by any regulations promulgated under State law. This Court has upheld “the
longstanding principle that administrative agencies are bound by their own
regulations.” Saenz y N.M. Dep't of Human Servs., Income Support Div. ex rel.
Human Servs. Dep’t, 1982-NMCA-159, 14, 98 N.M. 805, 653 P.2d 181; Hillman,
1979-NMCA-007, 4 5. “Statutes create administrative agencies, and agencies are
limited to the power and authority that is expressly granted and necessarily implied
by statute.” In re Application of PNM Elec. Servs., 1998-NMSC-017, 4 10, 125 N.M.

302, 961 P.2d 147; Martinez, 2000-NMCA-074, { 22 (citing In re PNM Elec. Servs.

10
ll
12
43
14
15
16
17
18
19

for this proposition). Because HSD and MAD are created by statute, their
enforcement authority through adj udication in an HSD fair hearing is limited to that
expressly stated or necessarily implied by the law governing the right to an HSD fair
hearing. See Martinez, 2000-NMCA-074, § 22.

24} Petitioner argues that Hyden controls our analysis. We disagree. In that case |
the claimant refused to accept conventional in-network medical services offered by
the MCO and the MCO refused to cover alternative medical services offered by an
out-of-network provider, despite proof that the conventional therapies employed by
the in-network providers had proven ineffective, if not harmful, to claimant in
treating her conditions. See Hyden v. N.M. Human Servs. Dep’t, 2000-NMCA-107,
1 5, 7-8, 130 N.M. 19, 16 P.3d 444. In Hyden, as in the case before us, MAD’s
Director found that no action was taken to terminate, suspend or reduce benefits, and |:
no delay or denial of an application for Medicaid occurred, and thus dismissed the
claimant’s claim. Jd. J 11-12. In reversing the Director’s decision, we concluded:
“[A] take-it-or-leave-it offer of treatment that in fact is ineffective or harmful to the
recipient is equivalent to a ‘denial’ or ‘non-provision’ of medically necessary
services.” Id. q 16. This Court held that the claimant was. entitled to a fair hearing
under the governing statutes and regulations to determine whether the MCO “has
contracted with providers having the necessary qualifications to provide [the

pletitioner with appropriate treatment.” Id.

10
il
12
13
14
15
16
17
18

25) Hyden is distinguishable from this case because the transportation service
provided by the MCO is not, in itself, medically necessary treatment; rather, it is an
ancillary service intended to secure access to a medically-necessary treatment.
Although Petitioner argues that a lack of appropriate transportation led to the denial
of her necessary medical services, the MCO’s inability to accede to the type of
specialized, mostly gender-based transportation requests made by Petitioner clearly
does not amount to the take-it-or-leave-it treatment offer addressed in Hyden. The
MCO in this case offered Petitioner different transportation service providers and
offered to reimburse a family member or friend for transportation services in an
effort to cooperate with Petitioner and satisfy her transportation needs. Moreover,
unlike the claimant in Hyden who provided additional information regarding the
harm and ineffectiveness of her treatment, Petitioner here “fail[ed] 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.” In failing to
accommodate Petitioner, the MCO did not deny coverage for the services altogether
so as to require MAD to provide a fair hearing. See § 27-3-3; 8.352.2.10 NMAC.

26} When viewed in light of the whole record, and particularly in light of MAD’s
lack of authority to adjudicate discrimination claims, the agency’s decision to deny

Petitioner’s request for a fair hearing was not unreasonable, without a rational basis,

10
11
12
13
14
15
16
17
18
19
20

or contrary to law. See Rio Grande Chapter of the Sierra Club, 2003-NMSC-005,
{ 17. We therefore affirm the Director’s dismissal.
im. The Director’s Erroneous Determination That the Human Rights Bureau
May Adjudicate ADA Title II and Section 504 Claims Does Not Affect
Our Holding
27} Petitioner challenges MAD’s conclusion that the Human Rights Bureau was
a “more appropriate venue,” arguing that the Human Rights Bureau does not have
the statutory authority to determine discrimination claims on the basis of disability
outside the employer context. See NMSA 1978, § 28-1-7 (2004) (prohibiting
unlawful discrimination under the Human Rights Act in public accommodations,
housing, and employment). HSD argues that the scope of LogistiCare’s
transportation service is a “public accommodation” within the meaning of the
Human Rights Act, which falls within the jurisdiction of the Human Rights Bureau.
We agree that MAD’s Director erroneously determined that Petitioner’s claims
could be brought before the Human Rights Bureau under the Human Rights Act, but
for a different reason. Because Petitioner has not asserted a claim under that Act;
rather, her claim was brought pursuant to federal law—ADA Title II and Section
504.
28} To the extent Petitioner asks this Court to impose statutory authority on the
MAD to adjudicate discrimination claims because it is “necessarily implied by

statute,” see Martinez, 2000-NMCA-074, 9 22, we decline to do so. The plain

10
1]
12

13
14

language of the state law and regulations governing the Medicaid program, applied
as written, precludes such a result, See generally High Ridge Hinkle Joint Venture,
1998-NMSC-050, ¢ 5 (“The [C]ourt will not read into a statute or ordinance
language which is not there, particularly if it makes sense as written.” (internal
quotation marks and citation omitted)).

29} Although MAD is not required to provide a fair hearing under these
circumstances, Petitioner is free to pursue her claim for meaningful access to
benefits using the grievance procedures provided for in the federal statutes and
regulations corresponding to her discrimination claim. Concluding that the
erroneous determination regarding the proper venue has no effect on the outcome of
this appeal and that .MAD otherwise lacks implied authority to adjudicate
Petitioner’s claims, we affirm the dismissal of Petitioner’s claim.

CONCLUSION

30} Based on the foregoing, we affirm the district court’s decision.

8313 IT ISSO ORDERED. L\ \ 2

M. MONICA ZAMORA /CHjet Judge
NCUR: ! Vp a <a

IE J. VARGAS, Judge

LINDA M. VANZI, J udge, concurring in the result.
22

VANZI, Judge, concurring in the result.

323 I concur in the result affirming the district court’s conclusion that HSD/MAD
properly dismissed Petitioner’s administrative appeal. Petitioner’s request for
“reasonable accommodation” and her claim that she suffered “adverse action”
entitling her to an HSD/MAD fair hearing both are expressly predicated on her
allegation that failure to provide transportation services in the specific manner she
outlined contravenes Section 504 and ADA Title II.

{33} There is no dispute that Petitioner has rights under Section 504 and ADA Title
II, nor any dispute that HSD/MAD must comply with those statutes. But this does
not equate to a conclusion that HSD has legal authority to enforce these federal |
statutes through adjudication of claims arising under them in an HSD/MAD fair
hearing, as Petitioner contends. See In re Application of PNM Elec. Servs., Div.,
1998-NMSC-017, ¢ 10 (“Statutes create administrative agencies, and agencies are
limited to the power and authority that is expressly granted and necessarily implied
by statute.”). |

34} Petitioner argued (here and in the district court) that HSD, “as part of its
overall obligations to enforce the anti-discrimination requirements of Section 504,
ADA Title II, and their implementing regulations—is specifically required by the
regulations to have ‘grievance procedures’ that provide for the ‘prompt and equitable

resolution of complaints alleging any action that violates those requirements.” Both

10
11
12
13
14
15
16
17
18
19

45 C.F.R. § 84.7 (Section 504) and 28 C.F.R. § 35.107(b) (ADA Title II) require that
entities to which Section 504 and the ADA Title II apply must establish grievance
procedures for resolution of complaints “alleging any action prohibited by this part.”
28 C.F.R. § 35.107(b). However, although Petitioner stated, “It appears that [HSD]
has never adopted any such procedures[,]” she did not argue for reversal on this
basis. See Rule 12-321(A) NMRA (“To preserve an issue for review, it must appear
that a ruling or decision by the trial court was fairly invoked.”); see also Sandoval y.
Baker Hughes Oilfield Operations, Inc.,2009-NMCA-095, § 65, 146 N.M. 853, 215
P.3d 791 (“It is the duty of the appellant to provide a record adequate to review the
issues on appeal.”). Regardless, the authority of HSD/MAD to adjudicate matters in
an HSD/MAD fair hearing is still limited to the authority expressly stated or
necessarily implied by the law governing the right to a fair hearing. Jn re PNM Elec.
Servs., Div., 1998-NMSC-017, q 10; Martinez, 2000-NMCA-074, { 22. For the
foregoing reasons, I agree with the district court’s conclusion that “HSD properly
dismissed the case” because Petitioner failed to identify any statute or rule
authorizing HSD “to decide and adjudicate violations of the ADA [Title II] or
Section 504[,]” and I agree with the result in this case affirming the district court on
this point. I cannot concur, however, in the Majority’s dicta, especially its statements
concerning the jurisdiction of the Human Rights Bureau. I also take issue with some

of the Majority’s characterizations of the arguments, the record, and the law.

10
I]
12
13
14
15
16
17
18
19

The Majority’s Dicta

35} The district court affirmed the dismissal of Petitioner’s administrative appeal
solely on the basis of Petitioner’s failure to identify any statute or rule authorizing
HSD “to decide and adjudicate violations of the ADA [Title IT] or Section 504.” The
court did not address any other issue, including MAD’s statement that “a more
appropriate venue would be the New Mexico Human Rights Bureau”; HSD’s
contention that Petitioner’s claim is within “the exclusive province of the New
Mexico Human Rights Commission”; or whether Petitioner’s claim meets the
definition of an “adverse action” for which there is a right to an HSD/MAD fair
hearing.

36} This Court ordinarily does not consider issues not ruled on by the district
court. See, e.g., Batchelor v. Charley, 1965-NMSC-001, 7 6, 74 N.M. 717, 398 P.2d
49 (declining to review issue where appellant failed to meet the burden “to show that
the question presented for review was ruled upon by the trial court”); Luevano v.
Grp. One, 1989-NMCA-061, q 7, 108 N.M. 774, 779 P.2d 552 (stating, in declining
to address issues, that “[aJn appellant has the burden of showing that a question
presented for review on appeal was ruled upon by the trial court”). The sole ground
on which the district court relied in affirming the dismissal of Petitioner’s
administrative appeal fully resolves this appeal, and I see no reason to decide any

issue the district court did not rule on. Accordingly, I would not reach out to

10
11
12
13
14
15
16
17
18

conclude, as the Majority does, that “the claims asserted by Petitioner do not arise
out of an adverse action contemplated under State law and corresponding
regulations, as they do not involve a denial or reduction in services or failure to
approve a service in a timely manner[,]” Maj. Op. § 21, and that “the MCO did not
deny coverage for the services altogether [for purposes of] requir[ing] MAD to}
provide a fair hearing.” Jd. § 25. |

g7 Of greater concern is the Majority’s conclusion, that “MAD’s Director
erroneously determined that Petitioner’s claims could be brought before the Human
Rights Bureau under the Human Rights Actf[.]” Maj. Op. { 27. This statement
constitutes a pronouncement about the scope of the jurisdiction of the Human Rights |
Bureau in a case in which resolution of the issue “has no effect on the outcome of
this appeal.” Maj. Op. § 29. In other words, it is pure dicta. See, eg, Ruggles v.
Ruggles, 1993-NMSC-043, q 22 n.8, 116 NM. 52, 860 P.2d 182 (statements
“unnecessary to decision of the issue before the Court” are dicta, “no matter how
deliberately or emphatically phrased”); Kent Nowlin Constr. Co. v. Gutierrez, 1982-
NMSC-123, 4 8, 99 N.M. 389, 658 P.2d 1116 (“Dictum is unnecessary to the holding ;
of a case and therefore is not binding as a rule of law.”). I cannot concur. See Porter
v. Robert Porter & Sons, Inc., 1961-NMSC-010, J 18, 68 N.M. 97, 359 Pid 134,

(“[O]n appeal this Court will not make useless orders nor grant relief that will avail

10
11
| 12
13
14
15
16
17
18

appellant nothing, and neither will it decide questions that are abstract, hypothetical
or moot[.]”’). |

The Majority’s Characterizations

{38}. The Majority states that Petitioner’s arguments here and in the district court
include that “MAD violated her due process rights under the Fourteenth Amendment
of the United States Constitution[,]” Maj. Op. { 2, and that “denial of [the] requested
accommodation amounted to discrimination on the basis of disability in violation of |:
Section 504, ADA Title IJ, and the Due Process | Clause of the Fourteenth
Amendment of the United States Constitution.” Jd. { 7. I question the Majority’s
implicit conclusions that Petitioner preserved and sufficiently developed an
argument for reversal based on the Due Process Clause of the Fourteenth
Amendment. To the extent Petitioner can be said to have done so, however, her
argument is that the Fourteenth Amendment Due Process Clause affords the
procedural right to be heard, not that she was deprived of the substantive right to be
free from discrimination, a right the Fourteenth Amendment does not guarantee in
the Due Process Clause, but rather in the Equal Protection Clause. The Majority’s
statement that it does not address this argument does not obviate the obligation to
ensure that what is stated in the opinion accurately characterizes the arguments, the

record, and the law.

10
11
12
13
14
15
16
17
18
19

{39} The Majority’s statement in footnote 6 disclaiming the need to “reach the
question of whether the MCO or LogistiCare are state actors for purposes of being
bound by the statutes and regulations applied to HSD[,]” Maj. Op. { 15 n.6, suggests
an erroneous understanding of the State-action doctrine and the: reason for the
statement in Ayden the Majority quotes. The Fourteenth Amendment, by its terms,
proscribes conduct by state actors (as distinct from private actors). See U.S. Const.
amend. XIV § i (“No state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any state deprive
any person of life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.”). In Hyden, the
district court affirmed the dismissal of Hyden’s administrative appeal “on the ground
that the MCO was nota state actor, and therefore, the MCO’s actions did not trigger
a right to procedural due process.” 2000-NMCA-107, J 1, 14. Hyden argued on
appeal to this Court that “this case can be resolved without reaching ‘the
constitutional issues on which the district court based its ruling” because state
statutes and regulations provide the right to a fair hearing she asserted. Id. { 15.

{40} The issue of state action was relevant in Hyden only because the district
courts decision rested on its conclusion that “medical review decisions that result
in a reduction, suspension or termination of benefits . . . do not trigger

constitutionally protected due process rights” because the decision-maker is not a

10
11
12
13
14
15
16
17

18
19

Kite actor. Id. {| 14 (internal quotation marks omitted), Here, where the Majority
states that it does not address the due process argument and dee is no argument that |
Petitioner was not entitled to an HSD/MAD fair hearing based on lack of state action,
the Majority’s state-action commentary is irrelevant and inapt, and its — on
Hyden misplaced. Errors and mischaracterizations that do not alter the result are
errors and mischaracterizations just the same, and we — an obligation to avoid
them.

{41} The Majority states that “Hyden is distinguishable from this case because the
transportation service provided by the MCO is not, in itself, Snadlieallystie@aswaiy
treatment.” Maj. Op. 7 25. Although I agree with the Majority that the inability to
guarantee Petitioner’s specific requests in every instance is different from the take-
it-or-leave-it offer addressed in Hyden, Maj. Op. 25, the principal reason Petitioner
is wrong in contending that Hyden controls the analysis here is that Hyden does not
address whether rights arising under Federal anti-discrimination statutes may be
adj ndleenel in an HSD/MAD fair hearing. And the conclusion that no law suthorizes
adjudication of claims arising under Section 504 and the ADA Title II in an
HSD/MAD fair hearing fully resolves this appeal.

(FTO

KINDA ies Judge

. 29

May 16, 2019- Amy J. Law v. New Mexico Human Services Department, No. A-1-CA-36283

Full text

OCR transcription for search; preserved printed pages are authoritative

Continue your research in ChatGPT or Claude