Duc Van Le v. Ibarra , 16 Brief Times Rptr. 1956 ( 1992 )

Justice ERICKSON

dissenting to the denial of the petitions for rehearing:

In this class action, the trial court held that the respondents, administrators of state social service programs, violated Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1988) (section 504), and the Fourteenth Amendment to the United States Constitution (Fourteenth Amendment) by failing to provide Due Van Le and the members of the class of low-income mentally ill persons (petitioners), with the same Home and Community-Based Services (HCBS) program that is provided to elderly, blind, and physically disabled persons. The trial court entered an injunctive order that required the respondents to provide HCBS benefits to the petitioners.¹ The respondents appealed the judgment of the trial court to the court of appeals and we granted certiorari before judgment.

We were equally divided on the resolution of the issues in this ease and the judgment of the trial court was affirmed by operation of law. See C.A.R. 35; People ex rel. Link v. Tucker, 96 Colo. 273, 42 P.2d 472 (1934). As a result of the affir-mance, the August 23, 1990 trial court order has become the controlling document in this case. The respondents filed petitions for rehearing, which are directed to the trial court’s order. In my view, the trial court erred in ordering the respondents to provide HCBS benefits to the petitioners so long as they provided the same benefits to the elderly, blind, and physically disabled. The respondents are allowed to target Medicaid benefits to discrete groups of disabled individuals and the targeting of Medicaid benefits under an HCBS waiver program does not violate the Fourteenth Amendment.² The petition for rehearing submitted by the respondent Colorado Department of Social Services demonstrates that there were, and presently are, no funds appropriated or available for the HCBS services sought by the mentally ill in this case.³ I would therefore grant the respondents’ petitions for rehearing.

1 . The trial court’s order provides:

IT IS THEREFORE ORDERED that plaintiff Due Van Le and members of the class, as previously certified, are entitled to meaningful access to the same HCBS program services which are currently provided to the elderly, blind and physically disabled persons.

IT IS FURTHER ORDERED that:

1. State defendants, their agents and employees are permanently enjoined from denying plaintiff and class members HCBS benefits solely on the basis that their primary diagnosis is mental illness.

2. So long as state defendants provide HCBS benefits to elderly, blind and physically disabled persons, they shall provide the same services for plaintiff and class members.

2 . The imposition of liability on respondent Henry Solano, Director of the Colorado Department of Institutions, based on his failure to provide HCBS services to mentally disabled persons was also affirmed by operation of law. Because I would resolve the section 504 and equal protection issues in favor of the respondents, I perceive no need to address the liability of Solano. I note, however, that there is nothing in the record of this case which supports the trial court’s conclusion that Solano or the Department of Institutions ever provided HCBS services to the elderly, blind, or physically disabled. Therefore, I perceive no basis in either fact or law for the trial court’s conclusion that Solano is liable to the petitioners or should be enjoined as ordered by the trial court.

3 . In fiscal year 1989, the General Assembly appropriated approximately $450 million for Medicaid expenditures, an amount representing 10% of the entire state budget. 1988 Colo.Sess.Laws, ch. 1, Part XXI, pp. 86, 91. In fiscal year 1991, the amount of funds allocated to Medicaid increased to over $665 million, or almost 13% of the state budget. 1990 Colo.Sess.Laws, ch. 1, Part XXI, pp. 83, 88. In the 1992 fiscal year, the amount appropriated to Medicaid expenditures has increased to over $1.1 billion, or almost 18% of the entire state budget. 1991 Colo.Sess. Laws, ch. 340, Part XX, pp. 2639, 2648.