Tyrrell, et a l . v. Comm., NHDHHS 09-CV-243-JD 06/02/10 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Mark Tyrrell, Mark Carter, and Keshia Wallis

v. Civil No. 09-cv-243-JD Opinion No.

Nicholas Toumpas, Commissioner of the New Hampshire Department of Health and Human Services

O R D E R

Mark Tyrrell, Mark Carter, and Keshia Wallis sued Nicholas

Toumpas, Commissioner of the New Hampshire Department of Health

and Human Services ("DHHS"), in his official capacity, alleging

that he violated their rights under 42 U.S.C. §

1396a(a)(10)(A)(i), a federal statute pertaining to disability

benefits. The plaintiffs move for judgment on the pleadings or,

in the alternative, summary judgment. Toumpas also moves for

summary judgment.

In addition to suing on their own behalf, the plaintiffs

purport to represent a class of similarly situated persons, and

move for class certification. Toumpas does not object. Background

The parties state that the facts material to the cross

motions for summary judgment are not disputed. The three

plaintiffs applied to DHHS for Aid to the Permanently and Totally

Disabled ("APTD"). All three were denied because, according to

DHHS, they did not meet one of the eligibility requirements,

namely, that "the minimum required duration of the impairment

[must] be 48 months." N.H. RSA § 167:6, VI. At the time DHHS

denied benefits, all three plaintiffs were receiving Supplemental

Security Income ("SSI").

Standard of Review

Summary judgment is appropriate when "the pleadings, the

discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law."1

Fed. R. Civ. P. 56(c). The party seeking summary judgment must

first demonstrate the absence of a genuine issue of material fact

in the record. See Celotex Corp. v. Catrett,

(1986). A party opposing a properly supported motion for summary

■'■Although the plaintiffs filed a motion for judgment on the pleadings or, in the alternative, summary judgment, the motion will be treated as one for summary judgment only.

2 judgment must present competent evidence of record that shows a

genuine issue for trial. See Anderson v. Liberty Lobby, Inc.,

(1986). All reasonable inferences and all

credibility issues are resolved in favor of the nonmoving party.

See

.

Ordinarily, when parties file cross-motions for summary

judgment, the court must consider the motions separately to

determine whether summary judgment may be entered under the Rule

56 standard. Pac. Ins. Co. v. Eaton Vance Mqmt.,

(1st Cir. 2004); Bienkowski v. Northeastern Univ.,

(1st Cir. 2002). In assessing the motions, "the court

must determine whether either of the parties deserves judgment as

a matter of law on facts that are not disputed." Estrada v.

Rhode Island,

(1st Cir. 2010) (internal quotation

marks and citation omitted).

In this case, however, the parties do not dispute the

factual basis of the claims and instead present only a legal

issue for determination on summary judgment. As such, the

motions present the legal issue as a "case stated," which does

not require separate consideration. See, e.g.. Am. Lease Ins.

Agency Corp. v. Balboa Capital Corp.,

, 39 n.5 (1st

Cir. 2009); Garcia-Avala v. Lederle Parenterals, Inc.,

(1st Cir. 2000).

3 Discussion

I. Motions for Summary Judgment

Federal law provides that " [a] State plan for medical

assistance must . . . provide . . . for making medical assistance

available . . . to all individuals who are receiving aid or

assistance under any plan of the State approved under subchapter

I, X, XIV, or XVI of this chapter, [or] with respect to whom

supplemental security income benefits are being paid under

subchapter XVI of this chapter." 42 U.S.C. §

1396a(a) (10) (A) (i) (I) & (II) .2 A related federal regulation

requires states to "provide Medicaid to . . . disabled

individuals . . . who are receiving or are deemed to be receiving

SSI."

. If, however, "the agency does not

provide Medicaid under § 435.120 to . . . disabled individuals

who are SSI recipients, the agency must provide Medicaid to . . .

disabled individuals who meet [certain more restrictive]

eligibility requirements."

(a)(1). New

Hampshire RSA 167:6, VI provides that "a person shall be eligible

for [APTD] who . . . is disabled as defined in the federal Social

iAlthough the plaintiffs cite only subsection 1396a(a)(10)(A)(i)(II) in their amended complaint, they cite both subsections (I) and (II) in their motion for summary judgment. The court does not resolve whether only one or both subsections are applicable to the facts of this case, because the question is immaterial for purposes of the motions for summary judgment.

4 Security Act . . . except that the minimum required duration of

the impairment shall be 48 months." "The more restrictive

requirements may be no more restrictive than those requirements

contained in the State's Medicaid plan in effect on January 1,

1972."

(a)(2).

On January 1, 1972, Hampshire's Medicaid plan provided that,

for the purpose of determining eligibility for APTD, " [a] person

is permanently and totally disabled who has some permanent

physical impairment." Title XIX Plan - Permanent and Total

Disability, D-4800(l), Deft.'s Memo., Exh. A-l (emphasis in

original). The plan defined "permanent" as being "of such a

nature that it is expected to continue throughout the

individual's lifetime and is not likely to improve."

The

relevant provisions of the plan were codified in sections 7555

and 7560.1 of the June 1, 1968, version of New Hampshire's

Medical Assistance Manual. See Pis.' Obj., Exh. A.

The plaintiffs argue that 42 U.S.C. § 1396a(a)(10)(A)

requires New Hampshire to provide Medicaid coverage to anyone

receiving SSI benefits, and that New Hampshire's 48-month

duration requirement conflicts with this federal law. They

allege that Toumpas violated their rights under § 1396a(a)(10)(A)

5 when he denied their applications for APTD on the basis of the

48-month duration requirement.3

Toumpas argues that summary judgment should be granted in

his favor because New Hampshire's 48-month duration requirement

comports with federal law. Specifically, he points to

(a)(2), which allows DHHS to "elect to apply more

restrictive eligibility requirements to the aged, blind, and

disabled . . . than those of the SSI program." Toumpas

acknowledges that the state's eligibility requirements "may be no

more restrictive than those requirements contained in the State's

Medicaid plan in effect on January 1, 1972."

He argues that

the 48-month duration requirement complies with the federal

regulation because New Hampshire's plan in effect on January 1,

1972, required a recipient's disability to be "permanent,"

defined as "expected to continue throughout the individual's

lifetime." Title XIX Plan - Permanent and Total Disability, D-

4800(1), Deft.'s Memo., Exh. A-l.

3In their amended complaint, the plaintiffs also claim that RSA 167:6, VI conflicts with 42 U.S.C. § 1396a(a)(10)(A) and

, and that the New Hampshire statute is therefore preempted by the Supremacy Clause, U.S. Const, art. VI. In their motion for summary judgment, however, the plaintiffs devote only two sentences to their preemption claim. As presented, the claim appears to be essentially the same as the plaintiffs' claim for violation of their federal rights. As such, the discussion below applies to both of the plaintiffs' claims for relief.

6 The current duration requirement, 48 months, is less

restrictive than the duration requirement in 1972, which required

that the impairment must be expected to last throughout the

applicant's life.

The plaintiffs agree that the language quoted by Toumpas

requiring the disability to be expected to last throughout the

applicant's life had been part of the Medicaid plan prior to

January 1, 1972. They contend, however, that certain eligibility

provisions of the plan, which include the duration requirement,

were found to be illegal in Boisvert v. Zeiller,

(D.N.H. 1971). Because the Boisvert order issued on November 12,

1971, they argue, the New Hampshire Medicaid plan in effect on

January 1, 1972, did not contain any valid duration requirement.

According to the plaintiffs, the current 48-month duration

requirement is more restrictive than no duration requirement, and

it therefore violates

and 42 U.S.C. § 1396a.

In Boisvert, a mentally handicapped woman sought financial

assistance from New Hampshire to cover expenses she incurred for

dental work.

. The Division of Welfare

denied her application for benefits because her impairment was

mental, not physical, as required by New Hampshire Welfare

Regulations 7555 and 7560.1. The plaintiff sued Division of

Welfare officials, arguing that the definition of "permanently

7 and totally disabled" contained in sections 7555 and 7560.1

violated federal law. Pointing to the phrase "permanent physical

impairment," she argued that "this attempt to limit the class of

persons qualifying for medical assistance . . . to those with a

physical impairment [was] invalid because inconsistent with

certain provisions of [42 U.S.C. § 1396a] and the regulations

issued thereunder." Id. at 408 (emphasis in original).

In evaluating the plaintiff's claim, the court examined

(a)(1) (1971), which required that the state plan

"'[c]ontain a definition of permanently and totally disabled,

showing that: (i) "Permanently" is related to the duration of the

impairment or combination of impairments; and (ii) "Totally" is

related to the degree of disability.'"

at 409 (quoting 45

C.F.R. 233.80(a)(1)). The court noted that the regulation

required state plans to define "permanently" and "totally," but

that, "[n]owhere in the federal statute, in the applicable

regulations, or in the legislative history is there any

indication that participating states may specify elements of

permanent and total disability that do not relate either to the

duration or the degree of the impairment." Id. at 410. Because

New Hampshire's requirement that the disability be physical was

not related either to duration or degree, the court concluded,

the exclusion of those with mental disabilities was illegal, and the plaintiff was entitled to receive the benefits she sought.

Id. at 410-11.

The last sentence of the Boisvert order grants the following

relief: "Judgment will be entered for the plaintiff declaring

that sections 7555 and 7560.1 of the regulations of the State of

New Hampshire, Department of Health and Welfare, found in the New

Hampshire Medical Assistance Manual, are inconsistent with Title

XIX of the Social Security Act and the [federal] regulations

adopted thereunder, and are consequently void and unenforceable."

Id. at 411. Despite the broad language of the Boisvert court's

conclusion, it cannot be read to mean that all of sections 7555

and 7560.1 were illegal. Rather, the court's reasoning rested

squarely on the presence of the word "physical" in those

sections, and the fact that the plan rendered those with mental

disabilities, like the plaintiff, ineligible for medical

assistance. Read in the context of the rest of the case, the

concluding language does not operate to strike sections 7555 and

7560.1 in their entirety, but rather only to the extent those

sections limit assistance to those with physical--as opposed to

mental--disabilities. The court did not address the duration

requirement contained in those sections, and therefore the

9 duration requirement was lawfully and validly in effect on

January 1, 1972.4

The 48-month duration requirement contained in New Hampshire

RSA 167:6, VI is less restrictive than the duration requirement

in effect on January 1, 1972. Therefore, RSA 167:6, VI does not

violate 42 U.S.C. § 1396a(a ) (10)(i)(I) or (II),

. Because RSA 167:6, VI does not conflict with federal

law, it also does not violate the Supremacy Clause of the United

States Constitution. Summary judgment will enter in favor of

Toumpas.

II. The Plaintiffs' Motion for Class Certification

Because summary judgment will be entered in favor of

Toumpas, the plaintiffs' motion to certify a class pursuant to

Federal Rule of Civil Procedure 23(a) and (b)(2) is moot.

4The court notes that if Boisvert were read as plaintiffs urge, the state plan in effect on January 1, 1972, would lack any definition of the phrase "permanently and totally disabled" or the word "permanently." Under the reasoning in Boisvert, such a state plan would violate federal law because

(a)(1), requiring a definition of those terms, was "phrased in obligatory rather than in permissive terms."

.

10 Conclusion

For the foregoing reasons, the plaintiffs' motion to certify

a class (document no. 16) is denied, the plaintiffs' motion for

summary judgment (document no. 17) is denied, and the defendant's

motion for summary judgment (document no. 18) is granted. The

clerk of court shall enter judgment accordingly and close the

case.

SO ORDERED.

(X3)f .jfi. >— Jjoseph A. DiClerico, Jr. United States District Judge

June 2, 2 010

cc: Daniel Koslofsky, Esquire Laura E.B. Lombardi, Esquire Bennett B. Mortell, Esquire Nancy J. Smith, Esquire

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