311 F.Supp.2d 134 (2004) | Cited 5 times | D. Massachusetts | March 26, 2004


In this action, Jeannette Mendez, Judy Cook and Carmen Ortiz("Plaintiffs") — all of whom are clinically obese women receivingMedicaid benefits — allege that the Massachusetts Division ofMedical Assistance ("DMA")'s policy and practice of denying breastreduction surgery for them and other obese women violates the MedicaidAct, Title II of the Americans with Disabilities Act ("ADA") and theRehabilitation Act of 1973 ("Rehab Act"). The DMA's Acting Commissioner("Defendant") has moved to dismiss the complaint pursuant to Fed.R. Civ.P. 12(b)(1) and (6) and the parties have consented to this court'sjurisdiction pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P.73(b). For the reasons indicated below, the court will deny Defendant'smotion.Page 2


According to the Second Amended Complaint,1 Plaintiffs areclinically obese women with hypermastia (severe breast enlargement) whoare currently receiving Medicaid benefits through DMA. Although thecomplaint purports to apply to Plaintiffs and "all others similarlysituated," no motion to certify the class has yet been filed. Therefore,the only existing plaintiffs are Mendez, Cook and Ortiz.

DMA has denied Medicaid coverage for reduction mammoplasty (breastreduction surgery) for each woman, despite the fact that such surgery hasbeen recommended by their physicians. In each case, DMA has stated thatit would reconsider its decision only after the particular individuallost a significant amount of weight. The weight loss requirement isgrounded in Defendant's opinion that less costly options are availableand that the requested services do not meet professionally recognizedstandards of health care.

Plaintiffs commenced this two-count action on June 16, 2003. Count I,relying on 42 U.S.C. § 1983 ("section 1983"), alleges that the DMAviolated three provisions of the Medicaid Act, 42 U.S.C. § 1396a(a)(8)(which mandates that states provide Medicaid services "withreasonable promptness to all eligible individuals"), § 1396a(a)(10)(which requires states to ensure Medicaid services to certain categoriesof "individuals" be sufficient in "amount, duration, or scope" whencompared with othersPage 3similarly situated), and § 1396a(a)(17) (which requires stateMedicaid plans to include "reasonable standards . . . for determiningeligibility"), and regulations implemented thereunder. Count II allegesdisability discrimination in violation of Title II of the ADA,specifically 42 U.S.C. § 12131 and 12132, as well as section 504 ofthe Rehab Act, 29 U.S.C. § 794.


To the extent Defendant's motion is grounded in Rule 12(b)(6), thecourt has considered the salient facts alleged in the complaint and thereasonable inferences drawn therefrom in a light most favorable toPlaintiffs. See Coyne v. City of Somerville, 972 F.2d 440, 443(1st Cir. 1992). As necessary, the court has also considered "documentsthe authenticity of which are not disputed by the parties[,] . . .official public records[,] . . . documents central to[P]laintiff[]s['] claim . . . [and] documents sufficiently referredto in the complaint." Alternative Energy, Inc. v. St. Paul Fire& Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001) (indicatingthat such documents may be considered on Rule 12(b)(6) motion withoutconverting it into motion for summary judgment). As the parties are wellaware, the complaint may be dismissed pursuant to Rule 12(b)(6) ifPlaintiffs cannot prove, beyond a doubt, that facts supporting theirclaims entitle them to relief. See Conley v. Gibson,355 U.S. 41, 45-46 (1957); Roeder v. Alpha Indus., Inc., 814 F.2d 22, 25(1st Cir. 1987).

The court notes, however, that Defendant's two threshold arguments withrespect to Count I — further described below — question thecourt's jurisdiction and, as such, properly arise under Rule 12(b)(1).Pursuant to that rule, therefore, the court hasPage 4considered the above materials (undisputedly authentic documents,public records, etc.) in determining whether Plaintiffs have borne theirburden of establishing subject matter jurisdiction. See Gonzalez v.United States, 284 F.3d 281, 288 (1st Cir. 2002). If they have notdone so, the complaint may be dismissed. See Murphy v. UnitedStates, 45 F.3d 520, 522 (1st Cir. 1995).


In the first of two threshold arguments as to why the court lacksjurisdiction over Count I, Plaintiffs' Medicaid claim, Defendant assertsthat Plaintiffs have no private right of action, even via section 1983,to enforce the Medicaid provisions they reference. Second, Defendantasserts that DMA is entitled to sovereign immunity.2 Beyond thesethreshold arguments, Defendant argues that Count II, Plaintiff's ADA andRehab Act cause of action, fails to state a claim upon which relief maybe granted.

The court will consider these arguments in turn. In the end, the courtwill conclude that none of Defendant's arguments provides a sufficientbasis for allowing the motion to dismiss.


The parties appear to agree that the Medicaid statute itself containsno provision authorizing Plaintiffs to bring Count I. As a result, thefirst jurisdictional question raisedPage 5by Defendant's motion is whether section 1983 provides Plaintiffswith a cause of action to pursue Defendant's alleged violations ofcertain portions of the Medicaid statute, 42 U.S.C. § 1396a(a)(8),(10) and (17). In the court's view, it does.

"In order to seek redress through § 1983, . . . a plaintiffmust assert the violation of a federal right, not merely aviolation of federal law." Blessing v. Freestone, 520 U.S. 329,340 (1997) (emphasis in original). According to the First Circuit Courtof Appeals, relative to a recent Medicaid case originating in thiscourt, "[t]he determination of whether a federal statute creates aprivate right . . . turns on Congress's intent." Rolland v.Romney, 318 F.3d 42, 51 (1st Cir. 2003) (citing Alexander v.Sandoval, 532 U.S. 275, 286 (2001), and Middlesex CountySewerage Auth. v. Nat'l Sea Clammers Ass'n, 435 U.S. 1,13 (1981))."Traditionally," the First Circuit observed, "three indicators"described by the Supreme Court in Blessing help determinewhether a particular statutory provision gives rise to an enforceablefederal right: (1) whether Congress intended that the provision inquestion benefit the plaintiff; (2) whether the right assertedlyprotected by the statute is so vague and amorphous that its enforcementwould strain judicial competence; and (3) whether the statuteunambiguously imposes a binding obligation on the states. 52 (citing Blessing, 520 U.S. at 340-41). At bottom, thepurpose of a court's inquiry "is to determine whether or not [the]statute `confer[s] rights on a particular class of persons.'"Id. at 51 n.8 (quoting Gonzaga Univ. v. Doe,536 U.S. 273, 274 (2002)).

A host of courts — including both the First Circuit and thiscourt — have applied the three Blessing indicators to finda section 1983 right of action to enforce thePage 6"reasonable promptness" section, 42 U.S.C. § 1396a(a)(8), thefirst Medicaid provision at issue in Count I. See Bryson v.Shumway, 308 F.3d 79, 88-89 (1st Cir. 2002); Rolland v.Cellucci, 52 F. Supp.2d 231, 238-40 (D. Mass. 1999). See alsoWestside Mothers v. Haveman, 289 F.3d 852, 862-63 (6th Cir. 2002);Doe v. Chiles, 136 F.3d 709, 715-19 (11th Cir. 1998); Rabinv. Wilson-Coker, 266 F. Supp.2d 332, 341-42 (D. Conn. 2003);White v. Martin, No. 02-4154-CV-C-NKL (W.D. Mo. Oct. 3, 2002)(cited in Rabin); Antrican v. Buell, 158 F. Supp.2d 663, 670-71(E.D.N.C. 2001), aff'd on other grounds, 290 F.3d 178 (4th Cir.2002). As the First Circuit stated in Bryson: First, the statute, on its face, does intend to benefit [eligible Medicaid recipients]. . . . Second, the right conferred is not vague or amorphous. . . . Finally, § 1396a(a)(8) does unambiguously bind the states. The subsection mandates that state plans "must" provide that medical assistance be provided with reasonable promptness. These are not mere guidelines, but rather requirements which states must meet under the Medicaid system.Bryson, 308 F.3d at 88-89.

In addition, a number of courts, applying Blessing, have heldthat a section 1983 right of action exists to enforce the second Medicaidprovision at issue here, section 1396a(a)(10). See, e.g., WestsideMothers, 289 F.3d at 862-63; Antrican, 158 F. Supp.2d at671-72, aff'd on other grounds, 290 F.3d 178 (4th Cir. 2002);Rolland, 52 F. Supp.2d at 238-40; Cherry v. Tompkins,1995 WL 502403, at *10-11 (S.D. Oh. Mar. 31, 1995). As indicated, section(a)(10), often referred to as the "comparability" provision, requiresstates to ensure that Medicaid services to certain categories of"individuals" be sufficient in "amount, duration, or scope" when comparedwith others similarly situated.Page 7The Sixth Circuit explained: "[T]he provisions set a bindingobligation on [the states]" and "are not so vague and amorphous as todefeat judicial enforcement, as the state and regulations carefullydetail the specific services to be provided." Westside Mothers,289 F.3d at 863.

A similar result has been reached by still other courts with respect tothe third Medicaid provision, section 1396a(a)(17). See, e.g., Smithv. Palmer, 24 F. Supp.2d 955, 963-66 (N.D. Iowa 1998);Cherry, 1995 WL 502403, at *10-11. See also Preterm, Inc. v.Dukakis, 591 F.2d 121, 126 (1st Cir. 1979) (applying section1396a(a)(17) to question of whether Massachusetts could restrict abortioncoverage). Again, in applicable part, section (a)(17) requires stateMedicaid plans to include "reasonable standards . . . for determiningeligibility." In essence, therefore, there exists a persuasive line ofauthority evidencing Congress' intent that all three of the Medicaidprovisions upon which Plaintiffs rely here create private rights forwhich they may seek redress under section 1983.

Defendant's initial memorandum in support of his motion to dismissmentioned none of this authority. Instead he stated simply that"[P]laintiffs lack an enforceable right because their claims fail tosatisfy the second and third requirements in Blessing."(Defendant's Memorandum in Support of Motion to Dismiss at 10.) This lackof detailed analysis might be reason enough to reject Defendant'sposition. See Parker v. Town of Swansea, 270 F. Supp.2d 92, 97n.2 (D. Mass. 2003) (citing Kelley v. LaForce, 288 F.3d 1, 9(1st Cir. 2003), for the proposition that "arguments not briefed arewaived")). Nonetheless, the court is compelled to address, and ultimatelyreject, a slightly morePage 8fleshed-out argument that Defendant raises for the first time inhis reply memorandum, namely, that the Supreme Court's fairly recentdecision in Gonzaga "eviscerated" Blessing's three-parttest.

The only case Defendant cites in support of this argument is Sabreev. Houston, 245 F. Supp.2d 653 (E.D. Pa. 2003). Sabreeopines, in an unsupported footnote, that certain pre-Gonzagacases, including this court's 1999 decision in Rolland, utilized"the more liberal three-prong test disavowed by Gonzaga."Id. at 661 n.9 (emphasis added). This reference, Defendant asserts,confirms that Gonzaga represents "a sea-change in the lawconcerning private rights of action under § 1983 and . . . castsconsiderable doubt on authority that applied the Blessing test."(Defendant's Reply at 8.)

The court finds Defendant's reading of, and reliance on,Sabree somewhat misplaced. For one thing, Sabree'sgloss — that Gonzaga "disavowed" Blessing —has been rejected by at least one other district court which, instead,preferred to follow Blessing and the First Circuit's decision inBryson that section 1396a(a)(8) "provides the basis for anaction under § 1983." Rabin, 266 F. Supp.2d at 342.Moreover, as Plaintiffs note, Sabree's "disavow[al]" language isuntenable in light of Gonzaga's own approving citations to theBlessing indicators. See, e.g., Gonzaga, 536 U.S. at282-83. Finally, several courts of appeal — including the FirstCircuit in both Bryson and Rolland — havecontinued to cite Blessing, with approval, in post-Gonzagracontexts. See Rolland, 318 F.3d at 51-52 and n.8 (acknowledgingGonzaga and then applying the Blessing indicators);Bryson, 308 F.3d at 88 (noting the value of Blessingindicators as "a guide" but that, under Gonzaga, the ultimateissue concerns Congress' intent). SeePage 9also Abrams v. City of Ranchos Palos Verdes,354 F.3d 1094, 1096 (9th Cir. 2004), Schweier v. Cox, 340 F.3d 1284, 1290(11th Cir. 2003), and Prison v. Zebro, 339 F.3d 994, 998 (8thCir. 2003) (all citing Blessing favorably in post-Gonzagacontexts).

Still, Defendant's position has some resonance. In a recent Medicaidcase, for example, the First Circuit itself made clear thatGonzaga represented at least a "shift in emphasis" — ifnot "a tidal shift" — in the area of private rights of action.Long Term Care Pharmacy Alliance v. Ferguson, — F.3d—, No. 03-1985, slip op. at 20, 2004 WL 513790, at *9 (1st Cir.Mar. 17, 2004). As the First Circuit explained, Gonzaga didmore than simply repeat the Blessing indicators, it "indicatedthat nothing short of `an unambiguously conferred right' could support aclaim under section 1983 based on a federal funding law." Id.,slip op. at 16, 2004 WL 513790, at *7 (emphasis added; citationsomitted). Two "touchstones" in this analysis, the court continued, arewhether the particular statute (1) contains "rights creating language"and (2) identifies a "discrete class of beneficiaries." Id.,slip op. at 17, 2004 WL 513790, at *7 (citing Gonzaga, 536 287-88). The court went on to find that the section of the Medicaidstatute there at issue, 42 U.S.C. § 1396 a(a)(30)(A) — which,inter alia, requires that the rates charged by certain Medicaidservice providers be "sufficient to enlist enough providers toprovide services similar to those generally available in the area"— failed both parts of this analysis. Id.

Unfortunately for Defendant, the three Medicaid provisions at issuehere — unlike section 1396 a(a)(30)(A) — readily survive anyheightened analysis which Gonzaga requires. For one thing,sections 1396 a(a)(8), (10) and (17) all contain "rightsPage 10creating" language. To repeat, subsection (8) establishes the rightto have Medicaid services be provided "with reasonable promptness,"subsection (10) creates the right to "sufficient services," andsubsection (17) provides for "reasonable standards . . . fordetermining eligibility." In addition, and perhaps more importantly, eachsubsection — again unlike subsection (30)(A) — identifies a"discrete class of beneficiaries": "all eligible individuals" (subsection(8)); specific "individuals" receiving aid, assistance or benefits incomparison to others similarly situated (subsection (10)); and thoseindividuals seeking Medicaid "eligibility" (subsection (17)). Thus,whether the particular Medicaid subsection at issue is analyzed strictlyunder Blessing or through the filter of Gonzaga, eachone satisfies this circuit's test for providing a private right of actionvia section 1983.

To sum up, Plaintiffs' position that a private right of action existsappears well grounded in case law and the Medicaid statute itself andDefendant has submitted no persuasive authority to the contrary.Accordingly, the court concludes that section 1983 provides Plaintiffswith a cause of action to pursue all three of the statutory claims theyallege in Count I.


As a final jurisdictional argument, Defendant contends that he isbarred by the doctrine of sovereign immunity from being sued for theclaims raised in Count I. He concedes, however, that his sovereignimmunity argument is "identical" to one the First Circuit rejected inRosie D. ex rel. John D. v. Swift, 310 F.3d 230, 238(1st Cir. 2002). The court being so bound, it will not dismiss Count I onthe basis of sovereignPage 11immunity. Accordingly, Plaintiffs have borne their burden ofestablishing subject matter jurisdiction.


Count II alleges disability discrimination in violation of both TitleII of the ADA and the Rehab Act.3 To make out a Title II ADA claim, aplaintiff must establish, inter alia, "that [s]he is a qualifiedindividual with a disability." Parker v. Universidad de PuertoRico, 225 F.3d 1, 5 (1st Cir. 2000) (citing 42 U.S.C. § 12132).A "disability" is defined as "(A) a physical or mental impairment thatsubstantially limits one or more of the major life activities of suchindividual; (B) a record of such an impairment; or (C) being regarded ashaving such an impairment." 42 U.S.C. § 12102(2).

In the case at bar, Defendant argues that Plaintiffs do not have a"disability" since their obesity is neither an "impairment" nor one that"substantially limits one or more [of their] major life activities." Inthe court's estimation, however, it is unnecessary to presently resolvesuch issues since Count II amply satisfies the rules' relatively liberalpleading requirements. See Fed.R.Civ.P. 8(a) and (e). As the SupremeCourt stated nearly one-half century ago:

[T]he Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is "a short and plain statement of the claim" that will give the defendant fair notice of what the plaintiff's claim is and grounds upon which it rests.Page 12

Conley, 355 U.S. at 47 (quoting Fed.R.Civ.P. 8(a)).Accord Leatherman v. Tarrant County Narcotics Unit,507 U.S. 163, 168 (1993). See also Swierkiewicz v. Sorema N.A.,534 U.S. 506, 513 (2002) (holding that complaints in employment discriminationcases, "as in most others, must satisfy only the simple requirements ofRule 8(a)") (footnote omitted).

In the court's view, Plaintiffs have given Defendant "fair notice" oftheir ADA claim and the "grounds upon which it rests." The complaintalleges that Plaintiffs — at 411" and 226 pounds (Mendez), 5'6"and 203 pounds (Cook) and 5'2" and 211.4 pounds (Ortiz) — are"morbidly obese" and, accordingly, "are disabled persons or perceived tobe disabled within the meaning of the Rehabilitation Act and theAmericans with Disabilities Act." (Complaint at 1 and ¶ 53.) "As aresult," the complaint continues, "Defendant's policy or practice ofdenying medically necessary breast reduction surgery to them because oftheir obesity constitutes discrimination on the basis of disability."(Id. ¶ 53.)

To be sure, Defendant desires a ruling that obesity does not constitutea "disability" as a matter of law. Cf. 29 C.F.R. part 1630, App.§ 1630.2(j) (2004) ("[E]xcept in rare circumstances, obesity is notconsidered a disabling impairment."). However, even Defendant concedesthat the First Circuit has allowed obese persons to pursue disabilitydiscrimination claims. In Cook v. Rhode Is. Dep't of MentalRetardation, 10 F.3d 17 (1st Cir. 1993), for example, the courtupheld a jury's verdict that discrimination because of morbid obesityviolated the Rehab Act. As may well be the case here, the court foundthat the plaintiff's condition was either a "physical . . .Page 13impairment that substantially limit[ed] one or more of the majorlife activities" or, at least, that the defendant "regarded" theplaintiff as suffering from such an impairment: On one hand, the jury could plausibly have found that plaintiff had a physical impairment; after all, she admittedly suffered from morbid obesity, and she presented expert testimony that morbid obesity is a physiological disorder involving a dysfunction of both the metabolic system and the neurological appetite-suppressing signal system, capable of causing adverse effects within the musculoskeletal, respiratory, and cardiovascular systems. On the second hand, the jury could have found that plaintiff, although not handicapped, was treated by [the defendant] as if she had a physical impairment.Id. at 23. See Francis v. City of Meridan,129 F.3d 281, 286 (2nd Cir. 1997) (observing that obesity may constitute a"physical impairment" where it "relates to a physiological disorder");Connor v. McDonald's Restaurant, 2003 WL 1343259, at *3 (D.Conn. Mar. 19, 2003) (concluding that an allegation of morbid obesity wassufficient to satisfy the liberal pleading standard of Rule 8(a) for adisability discrimination claim). See also Fredregill v. NationwideAgribusiness Ins. Co., 992 F. Supp. 1082, 1088-89 (S.D. Iowa 1997)(collecting cases on obesity as a disability).

Of course, as Plaintiffs acknowledge, even if their obesity constitutesa "physical impairment" under the ADA, they will have to prove that it"substantially limits" at least one major life activity. See42 U.S.C. § 12102(2)(A). This may prove difficult. See28 C.F.R. § 35.104(1)(iii)(2) (2004) (in "disability" definition,"[t]he phrase major life activities means functions such as caring forone's self, performing manual tasks, walking, seeing, hearing, speaking,breathing, learning, and working"). For the moment, however, the courtcannot say, beyond a doubt, that Plaintiffs will be unable toPage 14supply facts supporting this element or for that matter, the rest oftheir claim for relief. See Conley, 355 U.S. 41-46;Roeder, 814 F.2d at 25. Accordingly, Defendant's motion todismiss Count II will be denied.


For the reasons stated, Defendant's motion to dismiss is DENIED.Counsel for the parties are hereby ordered to appear for an initialscheduling conference in accord with the notice to be issued by theclerk's office.


1. Technically, Defendant's motion to dismiss targets the FirstAmended Complaint, but the parties agreed at oral argument that themotion applies equally to the Second Amended Complaint which,hereinafter, will be referred to as the "complaint."

2. Defendant had also argued that Count I should be dismissedbecause Plaintiffs failed to exhaust their administrative remedies andthat Mendez's claim, in particular, was barred by the doctrine of issuepreclusion. As Plaintiff points out, however, Defendant withdrew thesecontentions at oral argument. (Plaintiffs' Sur-reply to Defendant'sMotion to Dismiss at 8. See also Defendant's Reply to Plaintiffs'Opposition to Motion to Dismiss ("Defendant's Reply") at 10 n.3.)

3. Since "`[d]isability' is defined identically under the ADA andthe Rehabilitation Act," Tardie v. Rehabilitation Hosp. of RhodeIsland, 168 F.3d 538, 542 (1st Cir. 1999), the court willhereinafter refer only to the ADA standards.Page 1

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