BACHARACH, Circuit Judge.
The Medicaid program is a federal-state joint venture that provides medical assistance to low-income individuals like one of the plaintiffs, Ms. Leslie Taylor. This assistance is provided to Ms. Taylor through two programs administered in Colorado. One program subsidizes the cost of attendants who provide in-home care; the other program compensates recipients for mileage when they use their vehicles for medical appointments.
Ms. Taylor owns a car, but she cannot drive because of a disability. To get to her medical appointments, she asked the Colorado agency to combine her benefits through the two programs. If approved, this combination would allow the agency to pay attendants for time driving Ms. Taylor to and from her medical appointments. The agency refused, and the plaintiffs allege that the refusal constitutes discrimination against Ms. Taylor based on her disability.
On appeal, we ask: Does the agency's refusal to combine its programs constitute discrimination against the disabled? We conclude the agency did not discriminate against Ms. Taylor based on her disability; she obtained the same benefits that all other Medicaid recipients would have received in the same circumstances.
Ms. Taylor's disability requires her to have attendants at home and when she travels, including when she travels to medical appointments. Her attendants are paid through a Colorado Medicaid program, Consumer Directed Attendant Support Services, which the defendants administer. But this program does not allow compensation for the attendants' time spent driving individuals to medical appointments. See Colo.Code Regs. § 2505-10:8.489.30(Q).
Colorado also provides transportation assistance to Medicaid recipients through the Non-Emergent Medical Transportation program. This program is administered county by county, paying "for the least expensive transportation suitable to the client's condition." Id. at § 2505-10:8.014; Appellants' App'x at 23.
In 2009, Ms. Taylor asked administrators of the medical transportation program to compensate her attendants for time spent driving to and from medical appointments. The administrators in Ms. Taylor's county ultimately determined that they would provide a wheelchair-accessible van for Medicaid recipients over 60 years old and a per-mile reimbursement for all other
The plaintiffs allege the per-mile reimbursement constitutes discrimination by inadequately compensating Ms. Taylor for her transportation costs. According to the plaintiffs, this discrimination violates the Americans with Disabilities Act and the Rehabilitation Act. The district court dismissed these claims and denied the plaintiffs' motion for reconsideration. The plaintiffs appeal both rulings.
For the dismissal, we engage in de novo review. Keith v. Rizzuto, 212 F.3d 1190, 1192 (10th Cir.2000). In applying de novo review, we conclude that the dismissal was correct.
Applying de novo review, we assume that the factual allegations in the complaint are true. Id. The resulting question is whether these factual allegations plausibly suggest that the defendants are liable. Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir.2012).
To apply this standard, we are guided by the elements of the plaintiffs' claims. See id. at 1192 ("While the [Rule] 12(b)(6) standard does not require that Plaintiff establish a prima facie case in her complaint, the elements of each alleged cause of action help to determine whether Plaintiff has set forth a plausible claim."). Title II of the Americans with Disabilities Act and § 504 of the Rehabilitation Act contain different elements, but this appeal involves an element common to both statutes: discrimination against Ms. Taylor based on a disability.
The plaintiffs argue that the agency discriminated against Ms. Taylor, raising four appeal points:
We reject each argument.
The plaintiffs contend that the Colorado agency had the "flexibility" to pay the attendants for driving Ms. Taylor. Appellants' Opening Br. at 24. But the agency's flexibility does not create a statutory duty.
"The [federal Medicaid] Act gives States 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.'" Alexander v. Choate, 469 U.S. 287, 303, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985) (quoting 42 U.S.C. § 1396a(a)(19)). With this discretion, states can decline to alter a benefit's scope "simply to meet the reality that [certain] handicapped have greater medical needs." Id. As a result, the Colorado agency could choose not to pay attendants for their driving time even if the agency had the option of paying. That choice did not constitute discrimination because the Colorado agency provided identical Medicaid benefits to every similarly situated recipient, disabled or not.
The plaintiffs also argue that the per-mile reimbursement was discriminatory because it did not sufficiently compensate Ms. Taylor for the attendants' driving time. Considered this way, the reimbursement is akin to a benefit "cap." But a benefit cap is not discriminatory simply because it fails to fully compensate certain
Neither the Americans with Disabilities Act nor the Rehabilitation Act requires Medicaid programs to compensate the disabled for all of their transportation costs. Though the per-mile reimbursement was inadequate for Ms. Taylor, that inadequacy does not make the reimbursement discriminatory.
The plaintiffs also argue that the Colorado agency discriminated against Ms. Taylor by failing to provide for a compensated driver, while a compensated driver was provided to similarly situated Medicaid recipients. Appellants' Opening Br. at 30. But the plaintiffs erroneously define the universe of similarly situated recipients.
The relevant geographic unit is the county because the Colorado agency administers transportation assistance differently among counties. In some counties, the agency provides brokered transportation for Medicaid recipients. For example, Medicaid recipients in some counties can go to medical appointments in a county-subsidized van. In Ms. Taylor's county, however, transportation assistance is provided in two ways: (1) a wheelchair-accessible van for Medicaid recipients over 60 years old and (2) a per-mile reimbursement for all other Medicaid recipients. No one in Ms. Taylor's county can obtain compensation for a driver under the medical transportation program.
To determine whether Ms. Taylor suffered discrimination because of her disability, we compare Ms. Taylor to other Medicaid recipients who reside in her county, not recipients living elsewhere in Colorado. See Boatman v. Hammons, 164 F.3d 286, 292 (6th Cir.1998) (holding that differences in county expenditures for transportation services, based on factors such as geographic conditions, do not violate the regulatory requirement of uniform operation of the Medicaid program within the state); see also Bruggeman ex rel. Bruggeman v. Blagojevich, 324 F.3d 906, 911 (7th Cir.2003) (stating that a Medicaid program need not "assure identical convenience of service everywhere in the state").
With this comparison, the plaintiffs' discrimination claim fails because Ms. Taylor is treated the same as every other Medicaid recipient in her county.
Under the regulations implementing the Americans with Disabilities Act, Colorado must make reasonable accommodations for Ms. Taylor's disability only if necessary to avoid discrimination based on a disability. 28 C.F.R. § 35.130(b)(7). Invoking this regulation, the plaintiffs argue that the Colorado agency had to modify the medical transportation program. We disagree.
Colorado must modify its Medicaid programs only if Ms. Taylor could not otherwise obtain the same benefits made available to nondisabled individuals. See Wis. Cmty. Servs., Inc. v. City of Milwaukee, 465 F.3d 737, 751 (7th Cir.2006) (en banc) ("[T]he plain language of [28 C.F.R. § 35.130(b)(7)] . . . makes clear that an accommodation only is required when necessary to avoid discrimination on the basis of a disability." (emphasis in original)). Under this standard, Ms. Taylor cannot prevail because the requested accommodation (payment of her attendants to drive to medical appointments) was not available to anyone, disabled or not. Thus, Colorado was not obligated to alter its Medicaid programs by creating a new benefit previously unavailable to any Medicaid recipients.
Having rejected the plaintiffs' four arguments, we uphold the dismissal of the discrimination claims. Even if the allegations in the complaint are credited, the Colorado agency did not discriminate against Ms. Taylor based on a disability. The Colorado agency provided the same benefits to all similarly situated Medicaid recipients, disabled or not.
After the district court ordered dismissal, the plaintiffs moved for reconsideration, arguing that the court had mistakenly thought that the state agency could not pay the attendants under the medical transportation program. With the motion, the plaintiffs submitted a fee schedule for services under the medical transportation program. The district court denied the motion for reconsideration.
We review this ruling for an abuse of discretion. See Elephant Butte Irrigation Dist. of N.M. v. U.S. Dep't of the Interior, 538 F.3d 1299, 1301 (10th Cir.2008). Under this standard, the plaintiffs' challenge fails.
In denying the motion for reconsideration, the district court concluded that the fee schedule would not have affected the need for dismissal. This conclusion fell within the district court's discretion. As the district court concluded, the Colorado agency has unambiguously interpreted its regulations to prohibit payment of attendants for driving Ms. Taylor to and from her medical appointments.
If the Colorado agency is incorrectly interpreting state regulations, the agency might be in violation of these regulations. But that violation would not involve the Americans with Disabilities Act or the Rehabilitation Act, the two statutes underlying Ms. Taylor's claims.
The plaintiffs' arguments are invalid.
By contrast, to state a prima facie claim under § 504 of the Rehabilitation Act, the plaintiffs must show that (1) Ms. Taylor is disabled, as the Rehabilitation Act defines, (2) Ms. Taylor would be "otherwise qualified" to participate in the Colorado Medicaid program, (3) the Colorado Medicaid program receives federal financial assistance, and (4) the Colorado Medicaid program discriminated against Ms. Taylor. See Jarvis v. Potter, 500 F.3d 1113, 1121 (10th Cir.2007).
We need not address these arguments. For the sake of argument, we can assume the attendants would refuse to drive Ms. Taylor without fair compensation. And the agency's current position on compensation of drivers is clear even if the agency had a different position in the past. The plaintiffs' claim involves discrimination, not misapplication of state regulations.