Ginger Elder v. Cindy Gillespie

United States Court of Appeals
For the Eighth Circuit
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No. 21-1826
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Ginger P. Elder; Benjamin Taylor; Jacquelyn A. Dearmore
lllllllllllllllllllllPlaintiffs - Appellees
v.
Cindy Gillespie, Director, Arkansas Department of Human Services, in her official
and individual capacity; Jerald Sharum, Director, Division of Provider Services
and Quality Assurance, Arkansas Department of Human Services, in his official
capacity; Richard Rosen, Managing Attorney, Office of Chief Counsel, Arkansas
Department of Human Services, in his official and individual capacity; David W.
Sterling, Chief Counsel, Arkansas Department of Human Services, in his official
and individual capacity; Craig Cloud, Former Director, Division of Provider
Services and Quality Assurance, Arkansas Department of Human Services, in his
individual capacity; Mark White, Deputy Director, Division of Aging, Adult and
Behavioral Health Services/Chief of Staff to Gillespie and Chief Legislative and
Intergovernmental Affairs Officer, Arkansas Department of Human Services, in
his official and individual capacity
lllllllllllllllllllllDefendants - Appellants
John Does, in their official and individual capacities
lllllllllllllllllllllDefendant
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Northern
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Submitted: January 13, 2022
Filed: December 9, 2022
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Before SMITH, Chief Judge, WOLLMAN and ERICKSON, Circuit Judges.
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SMITH, Chief Judge.
Ginger Elder, Jacqueline Dearmore, and Benjamin Taylor (collectively,
“plaintiffs”) sued various officials of the State of Arkansas alleging that these
officials1 (collectively, “ADHS defendants”) violated their due process rights under
the Fourteenth Amendment. The officials moved to dismiss the complaint with
prejudice. The district court2 denied the motion. We affirm.
I. Background
Medicaid is a federal medical insurance program available to individuals with
limited economic resources. The federal Center for Medicaid and Medicare Services
(CMS) is the agency charged with administering the federal Medicaid program.
Arkansas has elected to participate in the federal Medicaid program.
1
The lawsuit named Cindy Gillespie, Director of the Arkansas Department of
Human Services (ADHS), in her official and individual capacity; Craig Cloud,
Director of Division of Provider Services and Quality Assurance of ADHS, in his
individual capacity; Richard Rosen, Managing Attorney of the Office of Chief
Counsel of ADHS, in his official and individual capacity; Jerald Sharum, Director of
the Division of Provider Services and Quality Assurance of ADHS, in his official
capacity; David Sterling, Chief Counsel of ADHS, in his official and individual
capacity; Mark White, Chief of Staff to Gillespie and Chief Legislative and
Intergovernmental Affairs Officer of ADHS, in his official and individual capacity;
and John Does, in their official and individual capacities
2
The Honorable Kristine G. Baker, United States District Judge for the Eastern
District of Arkansas.
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Arkansas’s Medicaid program is administered solely through ADHS. The
Medicaid program includes other optional services provided through Home and
Community-Based Services (HCBS) programs. The HCBS programs provide an
alternative for individuals who, without such programs, would likely require
placement in a long-term care facility. The premiere HCBS program in Arkansas is
ARChoices. ARChoices provides attendant-care services, home-delivered meals, and
a personal-emergency response system. It also provides a range of state plan
Medicaid services.
At least annually, ADHS conducts an eligibility assessment to determine
whether individuals remain eligible for its services and the amount of services to
allocate to them. Historically, ADHS relied on the professional discretion of an
ADHS registered nurse to determine an individual’s eligibility. In January 2016,
ADHS switched to a computer-based system that used an algorithm called Resource
Utilization Groups (RUGs). Following the switch, almost half of the ARChoices
beneficiaries received a service reduction in their benefits.
Beginning in January 2019, ADHS began using a new assessment tool known
as the Arkansas Independent Assessment (ARIA).3 After completing the assessment,
an ARChoices Person-Centered Service Plan (PCSP) is generated to allocate the
appropriate services to eligible individuals. Beneficiaries and applicants are notified
of their eligibility results once they receive a copy of the PCSP along with a Notice
of Action from an ADHS nurse. The Notice of Action triggers a person’s right to an
appeal.
3
ARIA involves home visits to applicants or beneficiaries by a nurse employed
by a company called Optum. The nurses ask questions using the ARIA assessment
tool. The responses provided are then run through an algorithm to determine
eligibility in a tier system.
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Federal and state Medicaid regulations require ADHS to notify beneficiaries
of an adverse action at least ten days before the date that the adverse action takes
effect. And if the beneficiary timely appeals, then ADHS may not reduce or terminate
their benefits until after the outcome of a hearing.
The plaintiffs each have different disabilities but were all beneficiaries of the
ARChoices Medicaid program; they all received in-home care services for many
years.4 Prior to implementation of ARIA, each of the plaintiffs received between 30
to 33 hours of in-home care services per week. After its implementation, Dearmore’s
and Taylor’s services were reduced, while Elder’s services were terminated
completely. The plaintiffs allege that the Notice of Actions provide insufficient notice
and lack rationality for the reductions imposed. They assert that ADHS’s computer
systems are programmed to terminate or reduce beneficiaries’ benefits either
immediately or no later than the tenth day following notification of an adverse action.
ADHS terminated or reduced the plaintiffs’ benefits5 despite their requests that
the benefits continue without interruption, pending the outcome of their hearing.
ADHS concedes this occurred but states that it was done mistakenly. ADHS restored
the plaintiffs benefits once they sued or their attorney contacted ADHS.
Management and supervision of the ARChoices program involves several
ADHS divisions and offices6 that handle the termination or reduction of services. All
4
The services varied from attendant care to doing their laundry, helping them
with personal hygiene, and accompaniment to medical appointments.
5
Both Dearmore and Taylor went without services for approximately three
months, and Elder went without services for approximately two months.
6
The plaintiffs complaint alleges that these offices may be involved in the
process of terminating or reducing ARChoices beneficiaries services: Office of Long-
Term Care (OLTC), an office within the Division of Provider Services and Quality
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appeal requests are processed through the Office of Appeals and Hearings (OAH).
The plaintiffs allege that staff in OAH, OLTC, DMS, and the general counsel section
failed to review requests for appeals to determine whether they were filed timely to
avoid benefit interruption. The plaintiffs further allege an undue delay before
DAAS/DAABHS staff were assigned to review appeal requests. And the plaintiffs
maintain that at least 30 beneficiaries timely appealed, but ADHS failed to continue
their benefits until legal counsel contacted ADHS.
The plaintiffs brought claims against the ADHS defendants in their official and
individual capacities, claiming that their rights under the Due Process Clause of
Fourteenth Amendment were violated. Dearmore also brought claims against the
ADHS defendants in their official and individual capacities for violations of her right
to adequate notice under the Due Process Clause of the Fourteenth Amendment. The
plaintiffs requested, among other things, a temporary restraining or preliminary
injunction, a declaratory judgment, a permanent injunction, and a money judgment.
The plaintiffs alleged that the ADHS officials are involved in the review and
approval process for the ARChoices program. The plaintiffs alleged that “ADHS
assesses program participants at least once every year to determine their functional
eligibility and, if eligible, to develop an updated person-centered service plan” and
that “[b]eneficiaries can be subject to re-assessment more than once a year if they
experience a change in status or service needs.” R. Doc. 31, at 15–16. The plaintiffs
further alleged that “ADHS has no plans to switch to a different assessment tool,
allocation methodology, or notice of action than those now used.” Id. at 16. However,
the plaintiffs acknowledged that the COVID-19 pandemic delayed their reassessment.
Assurance (DPSQA); the Division of Aging, Adult, and Behavioral Health Sciences
(DAABHS), which was formerly the Division of Aging and Adult Services (DAAS);
the Division of Medical Services (DMS); and the Division of County Operations
(DCO).
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The ADHS defendants responded to the complaint with a motion to dismiss.
In the motion, they argued that (1) they are entitled to sovereign immunity and that
the plaintiffs’ claims against the ADHS defendants in their official capacities are not
subject to the Ex Parte Young7 exception; (2) the plaintiffs failed to state a claim for
relief because the plaintiffs’ benefits were restored pending appeal, meaning that
there was no ongoing constitutional violations; (3) the plaintiffs failed to demonstrate
future injury and are not entitled to equitable relief; (4) the plaintiffs failed to show
that they realistically face a future, temporary interruption of the ARChoices benefits,
meaning that they have not met the requirements for seeking injunctive relief in
federal court; (5) the allegations in support of Dearmore’s due-process and adequate-
notice claims are conclusory and insufficient, and Dearmore’s request for injunctive
relief is not cognizable against the ADHS defendants in their individual capacities;
and (6) the ADHS defendants are entitled to qualified immunity in their individual
capacities.
The plaintiffs replied that the relief they seek will prevent an ongoing
deprivation of constitutional rights. They contended that their complaint allegations
regarding ADHS’s practices for terminating benefits and processing appeals
sufficiently allege entitlement to equitable relief.
The district court denied the motion to dismiss. It concluded that the plaintiffs
had alleged sufficient facts in their consolidated complaint to support their claims
against the ADHS defendants in their official capacities. According to the court, the
complaint adequately alleged entitlement to prospective injunctive relief to remedy
ongoing violations of federal law and to overcome the ADHS defendants’ assertion
of sovereign immunity. The court also found that the plaintiffs had alleged sufficient
facts to support an injury in fact. Specifically, they faced future, temporary
interruption of their ARChoices benefits. Thus, the district court found that the
7
Ex parte Young, 209 U.S. 123 (1908).
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plaintiffs have standing to bring their claims, including but not limited to their
official-capacity continuation-of-benefits claims.
Applying the principles of Mathews v. Eldridge, 424 U.S. 319 (1976), the
district court also concluded that Dearmore adequately alleged a violation of her due
process rights to adequate notice. The district court noted that Dearmore is a
Medicaid recipient with limited resources like the plaintiffs in Bliek v. Palmer, 102
F.3d 1472 (8th Cir. 1997), and Goldberg v. Kelly, 397 U.S. 254, 267–68 (1970). The
district court reasoned that Dearmore likely lacks the financial resources to hire an
attorney to assist her in interpreting the notice that she received from ADHS.
Ultimately, the district court concluded “that plaintiffs sufficiently plead[ed] that Ms.
Dearmore’s notice was not complete, not stated in plain language, and not reasonably
calculated to afford Ms. Dearmore an opportunity to raise her objections to ADHS’s
proposed actions.” R. Doc. 38, at 28.
The district court also determined that the plaintiffs sufficiently stated claims
against each of the ADHS defendants in their individual capacities for liability under
42 U.S.C. § 1983 and that the ADHS defendants were not entitled to judgment as a
matter of law or dismissal of the plaintiffs’ claims against them in their official or
individual capacities.
The district court denied qualified immunity to the ADHS defendants on the
plaintiffs’ individual-capacity claims, stating, “Plaintiffs’ consolidated complaint
states facts showing that they will plausibly be able to establish violations of their
constitutional rights with respect to their continuing benefits claims and that those
rights were clearly established.” Id. at 33. The district court ruled similarly with
respect to Dearmore, concluding that Dearmore had a clearly established right to
notice detailing the proposed termination of her ARChoices benefits and the reasons
for the proposed termination.
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Finally, the district court rejected the ADHS defendants’ argument that the
plaintiffs failed to state a claim on “count one which alleges claims against all
defendants in their official capacity for continuation of benefits and plaintiffs’ count
two which alleges claims against all defendants in their official capacity for their
alleged failure to provide Ms. Dearmore with due process and adequate notice.” Id.at 41 (citing Fed. R. Civ. P. 12(b)(6)). The court concluded that the plaintiffs alleged
sufficient facts which, if accepted as true, state a claim for relief against the ADHS
defendants in their official capacities. This appeal followed.
II. Discussion
The ADHS defendants ask this court to reverse the district court’s denial of
their motion to dismiss. They argue that (1) sovereign immunity bars the plaintiffs’
official-capacity claims; (2) the plaintiffs lack Article III standing to pursue their
claims for equitable, declaratory, and injunctive relief; and (3) the ADHS defendants
are entitled to qualified immunity on the plaintiffs’ individual-capacity claims.
We review the district court’s denial of the ADHS defendants’ motion to
dismiss de novo. Lane v. Nading, 927 F.3d 1018, 1022 (8th Cir. 2019). If a defense
of qualified immunity is raised, we reverse if the ADHS defendants are entitled to
immunity on the face of the complaint. Id.A. Sovereign Immunity
On appeal, the ADHS defendants argue that the Eleventh Amendment bars
suits by individuals brought against a state or its agencies or departments, regardless
of the relief sought.
The Eleventh Amendment to the United States Constitution states that “[t]he
judicial power of the United States shall not be construed to extend to any suit in law
or equity, commenced or prosecuted against one of the United States by Citizens of
another State, or by Citizens or Subjects of any Foreign State.” “While the
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Amendment by its terms does not bar suits against a State by its own citizens, [the]
[Supreme] Court has consistently held that an unconsenting State is immune from
suits brought in federal courts by her own citizens as well as by citizens of another
State.” Edelman v. Jordan, 415 U.S. 651, 662–63 (1974). But “the Supreme Court
[has also] recognized sovereign immunity does not bar ‘certain suits seeking
declaratory and injunctive relief against state officers in their individual capacities’
based on ongoing violations of federal law.” Kodiak Oil & Gas (USA) Inc. v. Burr,
932 F.3d 1125, 1131 (8th Cir. 2019) (quoting Idaho v. Coeur d’Alene Tribe of Idaho,
521 U.S. 261, 269 (1997)). “The Ex parte Young doctrine rests on the premise ‘that
when a federal court commands a state official to do nothing more than refrain from
violating federal law, he is not the State for sovereign-immunity purposes.’” Id.(quoting Virginia Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 255 (2011)).
While the ADHS defendants concede the Ex Parte Young doctrine could
potentially subject the ADHS defendants to a lawsuit in their official capacity, they
maintain that to do so would require the plaintiffs to show an ongoing violation of
federal law and to seek only prospective injunctive relief. The ADHS defendants
assert that “allegations of past illegal conduct do not establish a present case or
controversy regarding injunctive relief unless accompanied by continuing, present
effects.” Appellants’ Br. at 27. The ADHS defendants further contend that the
plaintiffs are not presently suffering from a violation of federal law and thus they
cannot overcome ADHS’s sovereign immunity.
We disagree. The plaintiffs’ ARChoices benefits must be reassessed each year
and, according to the plaintiffs’ allegations, “ADHS has no plans to switch to a
different assessment tool, allocation methodology, or notice of action than those now
used.” R. Doc. 31, at 16. The very harm alleged remains likely to recur barring a
change in the state’s operation of the program or judicial intervention. Under these
circumstances, we conclude that sovereign immunity does not bar this suit.
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B. Standing
The ADHS defendants argue that even if sovereign immunity does not bar the
plaintiffs’ claims, the plaintiffs still lack standing because they do not face a real,
immediate threat of future injury.
A motion to dismiss for lack of standing presents a jurisdictional question that
is properly analyzed under Federal Rule of Civil Procedure 12(b)(1). See Disability
Support All. v. Heartwood Enters., LLC, 885 F.3d 543, 547 (8th Cir. 2018).
[T]o seek injunctive relief, a plaintiff must show that he is under threat
of suffering ‘injury in fact’ that is concrete and particularized; the threat
must be actual and imminent, not conjectural or hypothetical; it must be
fairly traceable to the challenged action of the defendant; and it must be
likely that a favorable judicial decision will prevent or redress the injury.
Missourians for Fiscal Accountability v. Klahr, 830 F.3d 789, 794 (8th Cir. 2016)
(alteration in original) (quoting Summers v. Earth Island Inst., 555 U.S. 488, 493
(2009).
The ADHS defendants argue that the plaintiffs do not face a real, immediate
threat of future injury because all the plaintiffs have had their benefits restored. On
that basis, they contend that there is no prospective relief for the court to award. They
assert that the past suspension of the plaintiffs’ benefits does not show a present
violation.
The district court rejected the ADHS defendants’ argument, concluding that the
conduct leading to the present case is repeatable because all of the plaintiffs’ benefits
will be reassessed per an unchanged ADHS policy.
As the ADHS defendants point out, Dearmore and Taylor have already been
re-assessed and neither has received a notice indicating that their care hours are
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affected. But even assuming they lack standing, Elder does not because her benefits
have not been reassessed. And, in this case, “the presence of one party with standing
is sufficient to satisfy Article III’s case-or-controversy requirement.” Rumsfeld v. F.
for Acad. & Institutional Rts., Inc., 547 U.S. 47, 52 n.2 (2006); see also Brandt by &
through Brandt v. Rutledge, 47 F.4th 661, 668 (8th Cir. 2022) (“Constitutional
standing requires that at least one plaintiff demonstrate [standing] . . . .”). The
plaintiffs’ complaint is consolidated, their positions are nearly identical, and there is
no guarantee that under the present system, the conduct that led to both Dearmore and
Taylor’s benefits interruption will not occur again. See Sec’y of the Interior v.
California, 464 U.S. 312, 319 n.3 (1984) (standing existing for one plaintiff was
sufficient for all plaintiffs where their positions in the case were identical). Therefore,
we hold that the plaintiffs have standing.
C. Qualified Immunity
The ADHS defendants argue that they are entitled to qualified immunity in
their individual capacities on Dearmore’s notice claim and the plaintiffs’ supervisory
liability claims.
“We review de novo the denial of a motion to dismiss on the basis of qualified
immunity. To prevail at this stage of the proceedings, defendants must show that they
are entitled to qualified immunity on the face of the complaint.” Bradford v.
Huckabee, 394 F.3d 1012, 1015 (8th Cir. 2005). Government officials claiming a
qualified immunity defense are protected “from liability for civil damages insofar as
their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982).
1. Dearmore’s Notice Claim
The ADHS defendants assert that the notice accompanying Dearmore’s
reduction in care hours does not violate Dearmore’s due process rights under the
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Fourteenth Amendment. Alternatively, they contend that even if the notice that
Dearmore received is constitutionally deficient, Dearmore’s right to a more
particularized notice is not clearly established.
“To set forth a procedural due process violation, a plaintiff, first, must establish
that his protected liberty or property interest is at stake. Second, the plaintiff must
prove that the defendant deprived him of such an interest without due process of
law.” Gordon v. Hansen, 168 F.3d 1109, 1114 (8th Cir. 1999) (per curiam) (citation
omitted). “Adequate notice is integral to the due process right to a fair hearing, for the
‘right to be heard has little reality or worth unless one is informed.’” Bliek v. Palmer,
102 F.3d 1472, 1475 (8th Cir. 1997).
In Jacobs v. Gillespie, the district court held that DHS provided deficient
notice to ARChoices beneficiaries under the RUGs methodology. 3:16-cv-119-DPM
(E.D. Ark. Nov. 1, 2016). The court ordered that the notice “be in plain and clear
terms,” “explain why benefits are being reduced,” “explain the benefit reduction with
specific references (as applicable) to” the methodology, and “be as specific as
reasonably practicable about the beneficiary’s health conditions and reduced
benefits.” Id.; see also K.W. ex rel. D.W. v. Armstrong, 789 F.3d 962, 970–74 (9th
Cir. 2015) (affirming district court’s grant of preliminary injunction on due process
grounds where the notice of a Medicaid budget reduction “did not specify why
individual budgets had decreased”); Baker v. State, 191 P.3d 1005, 1008 (Alaska
2008) (reversing trial court’s denial of preliminary injunction on due process grounds
where the notice of Medicaid personal care hours reduction based on an assessment
tool failed to “show how and why” the agency reached the decision); L.S. by &
through Ron S. v. Delia, No. 5:11-cv-354-FL, 2012 WL 12911052, at *14 (E.D.N.C.
Mar. 29, 2012) (granting preliminary injunction on due process grounds to Medicaid
beneficiaries whose annual services were being reduced pursuant to an assessment
system because beneficiaries “did not understand the score” or “how the score was
reached”); M.A. v. Norwood, 133 F. Supp. 3d 1093, 1100 (N.D. Ill. 2015) (denying
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motion to dismiss a claim of inadequate notice of Medicaid in-home nursing cuts
where the notice stated only that the cut was “[b]ased on the individual assessment
and the medical documents provided” (alteration in original)).
Here, the consolidated complaint alleges that, as a matter of policy, practice,
or procedure, ADHS automatically terminates or reduces the services of Medicaid
beneficiaries. These beneficiaries are subject to adverse agency actions regardless of
the timing of any appeal request, which the consolidated complaint maintains is a
violation of their Fourteenth Amendment due process rights. Further, the consolidated
complaint alleges that, as a matter of policy, practice, or procedure, ADHS provides
insufficient notice of the reasons for the reduction in services. This limited notice
hampers beneficiaries’ ability to counter ADHS’s reasons. The consolidated
complaint alleges that the notice that Dearmore received failed to inform her of what
steps she should take to continue receiving the 143 hours of care per month that she
received before the reduction.
We conclude that beneficiaries have a clearly established right to be provided
adequate notice of reduction, loss, or termination of benefits. No fundamental
difference exists between this case and Jacobs: in both cases, beneficiaries suffered
a loss of benefits under ARChoices. Dearmore has sufficiently pleaded that ADHS
violated her right to notice.
2. Plaintiffs’ Supervisory Liability Claims
The ADHS defendants argue that they are entitled to qualified immunity on the
plaintiffs’ supervisory liability claims. Specifically, they argue that (1) “none of the
consolidated [c]omplaint allegations plausibly allege the existence of a formal policy
. . . that violates [the plaintiffs] [d]ue [p]rocess rights,” Appellants’ Br. at 59, and that
(2) the plaintiffs’ complaint fails to establish deliberate indifference and the
conclusory allegations of failure to train and failure to supervise do not overcome the
ADHS defendants’ qualified immunity.
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To state a claim under § 1983, the plaintiff must plead that a government
official has personally violated the plaintiff’s constitutional rights.
While the doctrine of respondeat superior does not apply to § 1983
cases, a supervisor may still be liable under § 1983 if either his direct
action or his failure to properly supervise and train the offending
employee caused the constitutional violation at issue. Even if a
supervisor is not involved in day-to-day operations, his personal
involvement may be found if he is involved in creating, applying, or
interpreting a policy that gives rise to unconstitutional conditions. In
requiring a plaintiff to allege that each defendant was personally
involved in the deprivation of his constitutional rights, we assess each
defendant relative to his authority over the claimed constitutional
violation.
Jackson v. Nixon, 747 F.3d 537, 543 (8th Cir. 2014) (cleaned up).
Both parties cite Jackson in support of the proposition that a supervisor can
only be liable for creating, applying, or interpreting a policy that gives rise to
unconstitutional conditions. In Jackson we held a prison warden had qualified
immunity when an inmate sued, claiming a treatment program unlawfully imposed
religion on him. The inmate claimed that the warden was personally responsible
because he “knew or should have known changes in Constitutional matters
concerning the facility in which he presides.” Id. at 544 (cleaned up). We disagreed,
holding that the inmate had to “plead facts that plausibly show direct involvement by
the warden in the formation, implementation, or enforcement of that policy.” Id. at
545.
Here, the complaint alleges the existence of a policy that violated the plaintiffs’
constitutional rights. The consolidated complaint alleged that ADHS terminated or
reduced the plaintiffs’ services despite each of them requesting both an administrative
hearing and having their services maintained pending the outcome of that hearing. In
addition, the consolidated complaint alleged this to be a custom, policy, or practice
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of ADHS. The consolidated complaint further alleged that this policy also provided
for resuming the benefits if a beneficiary had an attorney or care worker reach out to
ADHS within the ten-day appeal period.
The plaintiffs have also alleged involvement by each ADHS defendant in
creating, applying, or interpreting this policy. In addition to the allegations above, the
plaintiffs alleged that each of the ADHS defendants knew that the continuing benefits
systems had early reduction or termination issues prior to January 2019. The plaintiffs
also alleged that each ADHS defendant failed to remedy these issues. Additionally,
the plaintiffs alleged that each ADHS defendant was involved in either developing,
authorizing, or implementing the new process for continuing benefits.
Jackson is distinguishable because the plaintiffs here have alleged facts
showing the ADHS defendants’ direct involvement in the formation, implementation,
or enforcement of the alleged policy. The ADHS defendants may at some point
demonstrate that qualified immunity applies to the plaintiffs’ claims, but at this initial
pleadings stage, the plaintiffs have adequately alleged facts to survive a dismissal
motion raising the defense.
III. Conclusion
Accordingly, we affirm the district court’s denial of the motion to dismiss.
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