United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER
Y. Wang United States Magistrate Judge
matter comes before the court on Defendants Lynn A. Johnson
and Susan E. Birch's (collectively,
“Defendants”) Joint Motion to Dismiss First
Amended Complaint (the “Motion to Dismiss”).
[#42, filed July 13, 2016]. The Motion to Dismiss is before
the undersigned Magistrate Judge pursuant to 28 U.S.C. §
636(c) and the Order Referring Case dated January 29, 2016
[#16]. After carefully considering the Motion to Dismiss and
associated briefing, the entire case file, the applicable
case law, and the comments offered during the September 15,
2016 Motion Hearing, the Motion to Dismiss is GRANTED IN PART
and DENIED IN PART.
December 11, 2015, Plaintiff Lilafern Kadingo
(“Plaintiff” or “Ms. Kadingo”)
commenced this action in the District Court of the City and
County of Denver. See [#1 at 1]. Defendants filed
their Notice of Removal in the federal district court for the
District of Colorado on December 30, 2015, pursuant to 28
U.S.C. § 1331, because Plaintiff's Complaint alleged
violations of her constitutional rights and sought relief
under 42 U.S.C. § 1983. [Id. at 2]. However, on
January 29, 2016, the court granted the Parties a 60-day
stay, eventually extended to 90 days, of the proceedings to
pursue settlement negotiations. See [#17; #22].
settlement negotiations were unsuccessful, Defendants
responded to Plaintiff's Complaint with their first Joint
Motion to Dismiss Plaintiff's Complaint on May 10, 2016.
[#28]. The court denied as moot Defendants' first Joint
Motion to Dismiss in light of Plaintiff's notice of
filing the First Amended Complaint with Defendants'
consent. [#39]. On June 29, 2016, Plaintiff filed her First
Amended Complaint [#38], which remains the operative
Complaint in this matter.
First Amended Complaint alleges that she is a ninety-two (92)
year old woman who “is incapacitated with dementia and
physical disabilities.” [#38 at ¶ 1-2]. Plaintiff
currently resides in a nursing home in Thornton, Colorado,
and her son, John Kadingo, “holds a durable power of
attorney for [her].” [Id. at ¶¶
3-5]. Plaintiff's husband, Hubert Kadingo, passed away on
May 16, 2011, and through his will he devised one-half of his
estate via the Lilafern Kadingo Trust (the
“Trust”) to Plaintiff and one-half via a separate
trust to his children. [Id. at ¶¶
6-7]. The Trust is a pure discretionary trust
that granted sole and absolute discretion to the trustee
regarding distributions to Plaintiff, the sole beneficiary of
the Trust. [Id. at ¶ 11]. Further, Plaintiff
alleges that the Trust did not constitute a property interest
of Plaintiff's under Colorado law, that the Trust did not
constitute a countable resource under state or federal
Medicaid law, and that the Trust is a proper “third
party trust” that is “not countable under
Colorado law as a ‘third party trust' because it
had a sole and absolute discretionary standard.”
[Id. at ¶¶ 12-15].
November 2011, Innovage prepared and filed a Medicaid
application on behalf of Plaintiff as her authorized
representative. [Id. at ¶¶ 16-21].
Plaintiff alleges that prior to receiving Medicaid benefits
she spent all of her cash assets, with her only asset being a
one-half interest in the residence-an exempt homestead under
state and federal law. [Id. at ¶¶ 23-25].
Further, that she was not required to sell her residence
under Medicaid laws or regulations, and that it was
Innovage's responsibility to report her residence and the
Trust on her Medicaid application. [Id. at
¶¶ 26-27]. Nevertheless, Plaintiff contends her
residence and the Trust would not have affected her
eligibility for Medicaid, even if properly reported in
November 2011. [Id. at ¶ 28]. Ultimately,
Plaintiff sold her residence and informed Jefferson County of
the sale on multiple occasions. [Id. at ¶¶
16, 2014, Leanne Gardner of the Colorado Department of Health
Care Policy and Financing (“CDHCPF”) informed
John Kadingo that Plaintiff received an overpayment of $98,
703.52 in Medicaid benefits, and that the CDHCPF sought only
to recover that overpayment. [Id. at ¶ 35].
Plaintiff alleges that Ms. Gardner never mentioned a
“transfer without fair consideration.”
[Id.]. Then, on or about July 25, 2014, the
Jefferson County Department of Human Services
(“JCDHS”) sent Plaintiff a notice (the
“July 2014 notice”) that she was “over
resourced;” however, according to Plaintiff, the notice
was deficient as it cited an incorrect regulation and was
sent directly to Innovage who did not forward it to Ms.
Kadingo. [Id. at ¶¶ 37-39]. The JCDHS
informed Ms. Kadingo's attorney that they could not send
an additional notice, as they can only send notices to one
address. [Id. at ¶ 40].
Administrative Law Judge (“ALJ”) conducted a
hearing on the July 2014 notice, on July 17, 2015 and again
on August 10, 2015 via telephone. [Id. at ¶ 41;
#51-1 at 4]. Following the hearings, the ALJ concluded that
the July 2014 notice was defective; however, the ALJ
considered the merits of Plaintiff's case on the theory
of transfer without fair consideration rather than
over-resourced. [Id. at ¶ 42]. The ALJ
concluded that there was a transfer without fair
consideration in the amount of $87, 000 based solely on his
review of past, not future, expenditures from the Trust.
[Id. at ¶ 46]. Ultimately, the ALJ issued
Plaintiff a future disqualification of benefits penalty
rather than a past disqualification that Plaintiff alleges is
required by federal and state law. [Id. at ¶
47; #47-4 at 1 (the ALJ imposed a fourteen-month
disqualification period to begin upon entry of the Final
alleges that this hearing violated her due process rights.
[Id. at ¶ 43]. First, the hearing was
fundamentally unfair, as Plaintiff did not receive proper
advance notice of the basis for the alleged overpayment.
[Id. at ¶ 44]. Next, Plaintiff alleges that the
ALJ applied the wrong standard of proof in the case and
improperly shifted the burden of proof on Plaintiff rather
than the JCDHS. [Id. at ¶ 45]. In addition,
Plaintiff did not have the opportunity to contest the penalty
methodology used by the ALJ, because “issues of state
and federal law are beyond the jurisdictional authority of
the [ALJs] in Colorado.” [Id. at ¶ 47].
Plaintiff filed a motion for an extension of time to appeal
the ALJ's decision on September 8, 2015, which the Office
of Appeals of CDHCPF denied. [Id. at ¶ 48].
Thus, the CDHCPF issued a Final Agency Decision on October
30, 2015, affirming the ALJ's decision and imposing the
fourteenth-month disqualification period as of the date of
its order. See [#47-4 at 3].
on June 14, 2016, the JCDHS issued a new notice (“June
2016 notice”) to Plaintiff, imposing the fourteen-month
disqualification period set to run from July 1, 2016 to
August 31, 2017. [#38 at ¶ 50]. The reason for imposing
the fourteen-month penalty was Plaintiff's transfers
without fair consideration based on her failure “to
elect against her spouse's estate and [her failure] to
obtain a family allowance and exempt property allowance from
her spouse's estate.” [#38 at ¶ 51].
Apparently, the June 2016 notice was an attempt to cure the
deficiencies of the July 2014 notice, but was not a new
notice that Plaintiff could appeal on the merits.
See [#51-1 at 4-5]. And, on October 25, 2016, the
ALJ dismissed Plaintiff's appeal of the June 2016 notice,
because the ALJ had already heard the case and the CDHCPF
already issued a Final Agency Decision on the matter.
[Id. at 5].
not entirely clear, Plaintiff's First Amended Complaint
asserts five claims against Defendants and seeks declaratory
relief under Rule 57 of the Federal Rules of Civil Procedure
as well as reasonable attorney's fees under 42 U.S.C.
§ 1988. [#38 at 27-30]. It appears that Plaintiff seeks
a declaratory judgment that Defendants: (1) violated federal
law, specifically 42 U.S.C. §§ 1396p(c)(2)(B)(i),
1396p(d)(2)(A), 1396a(a)(18), with their policy and practice
of interpreting a spouse's failure to elect against the
decedent spouse's will as a transfer without
consideration, infringing her rights to a testamentary trust
that would be exempt from consideration under Medicaid
(“Claim I”); (2) violated 42 U.S.C. §
1396p(c)(1)(E)(i)(I), by failing to treat Mr. Kadingo's
testamentary trust as equivalent to an elective-share trust
under Colorado law and assessing a transfer penalty
(“Claim II”); (3) violated 42 U.S.C. §
1396p(c)(1)(D)(ii),  because the ALJ ignored the state
regulations and arbitrarily implemented the disqualification
penalty in contravention of federal law by utilizing a start
date that was not the first day of the month during or after
the date in which assets were transferred (“Claim
III”); (4) violated 42 U.S.C. § 1396a(a)(3) and
the Fourteenth Amendment of the United States Constitution,
because they provided Plaintiff deficient notice of the
termination of her Medicaid benefits and failed to provide
her a fair and impartial hearing, and seeking a declaration
that 10 C.C.R. 2505.10, 8.057.8.D and 8.057.8.E are
unconstitutional (“Claim IV”); and (5) violated
42 U.S.C. § 1396p(c)(2)(C) with their policy and
practice of applying transfer penalties when an individual
fails to elect against their deceased spouse's will with
reasons “other than to qualify for medical
assistance” (“Claim V”). See
[id. at 15-26]. The claims interweave facial
challenges to the state Medicaid regulations, as well as
particular challenges to the manner in which Ms.
Kadingo's case was adjudicated. [#38].
filed their Motion to Dismiss on July 13, 2016. [#42].
Plaintiff filed a response and Defendants a reply.
See [#47; #48]. On September 15, 2016, the court
held oral argument on the Motion to Dismiss and took the
motion under advisement. [#49]. The Motion to Dismiss is ripe
for resolution, and the court considers the Parties'
courts are courts of limited jurisdiction and, as such,
“are duty bound to examine facts and law in every
lawsuit before them to ensure that they possess subject
matter jurisdiction.” The Wilderness Soc. v. Kane
Cty., Utah, 632 F.3d 1162, 1179 n.3 (10th Cir. 2011)
(Gorsuch, J., concurring). Indeed, courts have an independent
obligation to determine whether subject matter jurisdiction
exists, even in the absence of a challenge from any party.
1mage Software, Inc. v. Reynolds & Reynolds,
Co., 459 F.3d 1044, 1048 (10th Cir. 2006) (citing
Arbaugh v. Y & H Corp., 546 U.S. 500 (2006)).
purposes of Rule 12(b)(1), “mootness is a matter of
jurisdiction. . . .” McClendon v. City of
Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996). A case
becomes moot if an event occurs during the pendency of the
action that “makes it impossible for the court to grant
any effectual relief whatever to a prevailing party.”
Church of Scientology of Calif. v. United States,
506 U.S. 9, 12 (1992) (internal quotations omitted). This
court must first turn to Defendants' argument with
respect to subject matter jurisdiction, because without
subject matter jurisdiction, the court may not reach the
issue as to whether Plaintiff states a claim for Count IV.
See Cunningham v. BHP Petroleum Great Britain PLC,
427 F.3d 1238, 1245 (10th Cir. 2005) (“Simply put, once
a federal court determines that it is without subject matter
jurisdiction, the court is powerless to continue.”)
Rule 12(b)(6) a court may dismiss a complaint for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). In deciding a motion
under Rule 12(b)(6), the court must “accept as true all
well-pleaded factual allegations . . . and view these
allegations in the light most favorable to the
plaintiff.” Casanova v. Ulibarri, 595 F.3d
1120, 1124 (10th Cir. 2010) (quoting Smith v. United
States, 561 F.3d 1090, 1098 (10th Cir. 2009)). However,
a plaintiff may not rely on mere labels or conclusions,
“and a formulaic recitation of the elements of a cause
of action will not do.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Rather, “a
complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949
(2009); see also Robbins v. Oklahoma, 519 F.3d 1242,
1247 (10th Cir. 2008) (explaining that plausibility refers
“to the scope of the allegations in a complaint,
” and that the allegations must be sufficient to nudge
a plaintiff's claim(s) “across the line from
conceivable to plausible.”).
ultimate duty of the court is to “determine whether the
complaint sufficiently alleges facts supporting all the
elements necessary to establish an entitlement to relief
under the legal theory proposed.” Forest Guardians
v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
Should the court receive and consider materials outside the
complaint, the court may convert a Rule 12(b)(6) motion to a
motion for summary judgment if the parties have notice of the
changed status and the nonmovant responded by supplying its
own extrinsic evidence. See Alexander v. Oklahoma,
382 F.3d 1206, 1214 (10th Cir. 2004). However, a district
court may consider legal arguments contained in a brief in
opposition to dismissal or documents referred to in the
complaint that are central to a plaintiff's claim if the
Parties' do not dispute their authenticity without
converting the Rule 12(b)(6) motion into a summary judgment
motion. See Cty. of Santa Fe, N.M. v. Public Serv. Co. of
N.M., 311 F.3d 1031, 1035 (10th Cir. 2002). In addition,
the court may consider documents subject to judicial notice,
including court documents and matters of public record.
See Tal v. Hogan, 453 F.3d 1244, 1264 n. 24 (10th
Cir. 2006); Hernandez v. Asset Acceptance, LLC, 970
F.Supp.2d 1194, 1197 n.1 (D. Colo. 2013) (noting that it is
appropriate for the court to take judicial notice of the
pleadings and decision in a prior case involving the same
parties on a motion to dismiss based on claim preclusion).
Mootness as to Claim IV
it is argued as an alternative ground and only pertains to
Claim IV, the court first considers whether it has subject
matter jurisdiction over Plaintiff's due process
challenge to the deficiency of the July 2014 notice and to
the constitutionality of certain sections of the Colorado
Code of Regulations, 10 C.C.R. 250510; § 8.057.8.D. and
§ 8.057.8.E, in prohibiting petitioners from arguing
that a rule or regulation violates state, federal, or
constitutional law before an ALJ. Defendants contend that the
June 2016 notice superseded the July 2014 notice and,
therefore, Plaintiff's fourth claim for relief is moot.
[#42 at 34].
is a threshold issue as federal court jurisdiction depends on
a live case or controversy-without a live, concrete
controversy, the court cannot consider the plaintiff's
claim(s) no matter how meritorious. Rio Grande Silvery
Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1110
(10th Cir. 2010). “If an intervening circumstance
deprives the plaintiff of a personal stake in the outcome of
the lawsuit, at any point during litigation, the action can
no longer proceed and must be dismissed as moot.”
Brown v. Buhman, 822 F.3d 1151, 1165 (10th Cir.
2016) (internal quotations omitted) (quoting Genesis
Healthcare Corp. v. Symczyk, 133 S.Ct. 1523, 1528
(2013)). Thus, the inquiry focuses on whether the court's
determination of the issues will have “some effect in
the real world.” Wyoming v. U.S. Dep't of
Argic., 41 F.3d 1207, 1212 (10th Cir. 2005) (internal
quotations and citation omitted). However, there is an
exception to mootness when the defendant voluntarily ceases
the challenged conduct for purposes of evading judicial
review, but is free to continue the challenged conduct once
the court dismisses the case as moot. Brown, 822
F.3d at 1166. The defendant bears the “formidable
burden of showing that it is absolutely clear the allegedly
wrongful behavior could not reasonably be expected to
recur.” Already, LLC v. Nike, Inc., 133 S.Ct.
721, 727 (2013) (internal quotations omitted) (quoting
Friends of the Earth, Inc. v. Laidlaw Environmental
Services (TOC), Inc., 528 U.S. 167, 190 (2000)).
argue that the June 2016 notice cures any deficiencies in the
July 2014 notice, and that they have met their burden that
the alleged wrongful behavior could not reasonably be
expected to recur given that Plaintiff cannot again fail to
elect against her spousal share, her exempt property
allowance, or her family allowance. [#42 at 33-35]. Contrary
to Defendants' assertions, the court concludes that the
issuance of the subsequent June 2016 notice does not moot
Plaintiff's due process claim. As an initial matter, it
appears that a primary reason for issuing a new notice was to
moot Plaintiff's due process claim. Cf. McCormack v.
Hiedeman, 900 F.Supp.2d 1128, 1139 (D. Idaho 2013)
(holding that “a party cannot conjure up mootness by
ceasing the challenged conduct only for practical or
strategic reasons-such as avoiding litigation.”).
Although not binding on this court, the court finds the case
Elkins v. Dreyfus persuasive in this matter. No. C
10-1366 MJP, 2010 WL 3947499, at *3 (W.D. Wash. Oct. 6,
2010). In Elkins, the United States District Court
for the Western District of Washington held that the
defendant's issuance of new termination of benefits
notices did not moot the plaintiffs' claims that the
initial notices were inadequate under due process standards.
Id. (holding that the defendant failed to satisfy
the heavy burden of showing that the challenged conduct would
not repeat, despite issuing new notices that cured some
deficiencies in the old notices). Moreover, that same court
also held that “[a] new notice is only effective if the
recipient has his full rights restored and a new notice
mailed out prior to retermination.” Elkins v.
Dreyfus, No. C10-1366 MJP, 2011 WL 3438666, at *6 (W.D.
Wash. Aug. 5, 2011).
Defendants issued the new notice well after the CDHCPF's
decision to impose a fourteen-month ineligibility period on
Plaintiff, and nearly six months after Plaintiff filed this
suit. See Id. (holding that the new notice, sent
after the termination was effective, did not bar the
plaintiffs' from pursuing their due process claims). In
addition, upon issuance of the new notice, Defendants argued
for dismissal of Plaintiff's appeal on preclusion
grounds, because the ALJ had already heard Plaintiff's
case. And Defendants conceded that they did not intend the
new notice to give Plaintiff a new opportunity to appeal her
case on the merits. [#51-1 at 4]. Moreover, the ALJ noted as
much in the October 25, 2016 initial decision regarding the
new notice stating, “[i]t seemed to the ALJ that there
was no real intention to provide an appeal on the merits from
the June 14, 2016 notice. Instead, the June 2016 notice
appeared to him to be a tactic to eliminate the issue of
notice from the federal appeal.” [#51-1 at 4].
Nevertheless, the ALJ still dismissed Plaintiff's appeal
of the new notice. [Id. at 5].
on the foregoing, the court concludes that the relief sought
by the Plaintiff will have an impact in the real world, and
that it is not absolutely clear that Defendants did not
change course “simply to deprive the court of
jurisdiction.” Rio Grande Silvery Minnow, 601
F.3d at 1115 (internal quotations and citation omitted). In
addition, Plaintiff appears to challenge the legality of
certain provisions of the Colorado Code of Regulations-issues
beyond the contents of a particular notice as applied to
Plaintiff. Accordingly, this court declines to find that
Claim IV is moot and, thus, concludes that it has subject
matter jurisdiction to consider whether Claim IV states a
cognizable claim that may be pursued by Plaintiff.
Issue and Claim Preclusion
court now turns to Defendants' arguments that they are
entitled to dismissal of this action because the claims are
subject to preclusion based on Plaintiff's conduct in the
administrative proceeding. Two similar bases for dismissal
pursuant to Rule 12(b)(6) are claim and issue preclusion.
See, e.g., Knight v. Mooring Capital Fund,
LLC, 749 F.3d 1180, 1185 (10th Cir. 2014). Federal
courts must give full faith and credit to state court
judgments, see 28 U.S.C. § 1738; Pittsburgh
Cty. v. City of McAlester, 346 F.3d 1260, 1276 (10th
Cir. 2003), which may include administrative actions,
Terrones v. Allen, 680 F.Supp. 1483, 1486 (D. Colo.
1988). A federal court will grant preclusive effect to an
agency's decision when the agency (1) acts in a judicial
capacity; (2) resolves factual disputes properly before it;
and (3) the parties had “an adequate opportunity to
litigate” the issue(s). Salguero v. City of
Clovis, 366 F.3d 1168, 1173 (10th Cir. 2004) (quoting
Univ. of Tenn. v. Elliot, 478 U.S. 788, 798 (1986)).
In doing so, federal courts grant preclusive effect to that
decision under the preclusion doctrines of the state where
the agency sits, i.e., Colorado law in this matter.
Colorado law, claim preclusion applies to a second judicial
proceeding when there exists: (1) finality of the first
judgment; (2) identity of subject matter; (3) identity of
claims for relief; and (4) identity of or privity between the
parties to the two actions. See Burlington Ditch
Reservoir & Land Co. v. Metro Wastewater Reclamation
Dist., 256 P.3d 645, 668 (Colo. 2011). Similarly, issue
preclusion bars relitigation of an issue decided in a
previous proceeding when: (1) the issue precluded is
identical to an issue actually litigated and necessarily
adjudicated in the previous proceeding; (2) the party against
whom estoppel is sought was a party to or was in privity with
a party to the previous proceeding; (3) there was a final
judgment on the merits in the previous proceeding; and (4)
the party against whom the doctrine is asserted had a full
and fair opportunity to litigate the issues in the previous
proceeding. See Nat'l Union Fire Ins. Co. of
Pittsburgh, PA v. Guar. Bank & Trust Co., No.
13-CV-00926-LTB-KLM, 2015 WL 920578, at *3 (D. Colo. Mar. 2,
2015) (citing In re Water Rights of Elk Dance Colo.,
LLC, 139 P.3d 660, 667 (Colo. 2006)).
argue for the dismissal of Plaintiff's First Amended
Complaint, because issue and claim preclusion bar
re-litigating Plaintiff's claims. See [#42 at
4-5]. Specifically, Defendants aver that Plaintiff's
claims were either already decided by the ALJ in the
underlying administrative action or were claims that
Plaintiff should have alleged on appeal to the Office of
Appeals of the CDHCPF or the Denver District Court.
See [id. at 9, 12]. For the following
reasons, the court respectfully disagrees.
preclusion bars the re-litigation of issues actually
litigated and decided in a prior proceeding, and is not
limited to identical claims for relief but may “apply
to causes of action that are different from those raised in
the original proceeding.” Gallegos v. Colorado
Ground Water Comm'n, 147 P.3d 20, 32 (Colo. 2006)
(citations omitted). As discussed, this applies to
administrative actions as well. Indus. Comm'n of the
State of Colo. v. Moffat County Sch. Dist. Re No. 1, 732
P.2d 616, 620 (Colo. 1987).
an issue to be actually litigated, the parties must have
raised the issue in the prior action.” Bebo Const.
Co. v. Mattox & O'Brien, P.C., 990 P.2d 78, 85
(Colo. 1999). This requires that the issue was properly
raised (i.e., “by appropriate pleading through
a claim or cause of action”), submitted, and determined
by the adjudicatory body. Nat. Energy Res. Co. v. Upper
Gunnison River Water Conservancy Dist., 142 P.3d 1265,
1280 (Colo. 2006) (quotations and citation omitted). The
issue actually litigated also must be necessary to the
judgment. See In re Tonko, 154 P.3d 397, 405 (Colo.
2007) (en banc). In addition, the party against whom issue
preclusion is asserted must have had a full and fair
opportunity to litigate the issue(s). Id. In making
this determination, courts look to whether the remedies and
procedures of the two proceedings are substantially
different, whether the party had an incentive to vigorously
litigate the issues, and the extent to which the issues are
identical. Elk Dance Colo., LLC, 139 P.3d at 669.
Defendants argue that the “issues Plaintiff raises now
are identical in substance to those raised in the
administrative action, only now the issues are framed
differently to comport with the requirements of §
1983.” [#42 at 9]. For example, the ALJ already
addressed the adequacy of the July 2014 notice
(Plaintiff's Claim IV); that the Trust was a countable
asset (Plaintiff's Claim I); that Plaintiff failed to
demonstrate that not electing against her husband's will
was for fair consideration (Plaintiff's Claims II and V);
and that Plaintiff must serve a fourteen-month ineligibility
penalty beginning once the CDHCPF issues a Final Agency
Decision (Plaintiff's Claim III). [Id. at 10].
In addition, Defendants contend that Plaintiff had a full and
fair opportunity to litigate these issues at the underlying
administrative proceeding. See [id. at 12].
responds that, although the issues in the administrative
proceeding and this proceeding “may share facts,
” the issues actually litigated in the administrative
proceeding are fundamentally different from those in this
action. [#47 at 3]. This is because the issues in the
administrative proceeding were whether a transfer without
fair consideration occurred and, if so, how long of an
ineligibility period would apply, not whether CDHCPF's
regulations violate federal Medicaid law and Plaintiff's
constitutional rights-the bases of this action.
[Id.]. In addition, Plaintiff avers that she did not
have a full and fair opportunity to litigate the issues in
the administrative proceeding, because of the July 2014
notice's inadequacies. [Id. at 3-4].
Plaintiff's claims are similar to those alleged in the
underlying administrative proceeding, the court concludes
that the issues are not identical. Plaintiff's claims are
broader than whether Defendants and the ALJ properly
adjudicated her case under the applicable regulations.
Rather, Ms. Kadingo challenges whether certain provisions of
the Colorado Code of Regulations, as promulgated by CDHCPF,
violate federal rights created by the federal Medicaid
statute. CHDCPF regulations explicitly prohibited the ALJ
from considering the constitutionality or legality of the
CDHCPF's regulations, even if they had been raised by
Plaintiff. See 10 Colo. Code Regs. §§
2505-10:8.057.8.D, E; accord Ramey v. Rizzuto, 72
F.Supp.2d 1202, 1221 (D. Colo. 1999) (“A state
agency's determination of procedural and substantive
compliance with federal law is not entitled to the deference
afforded a federal agency.”). And the only way that
Plaintiff can obtain any relief specific to her Medicaid
benefits through this action is to prevail in proving that
the CHDCPF regulations or policies violated a federal right.
the court concludes that the issues raised in the underlying
administrative proceeding were not identical to those alleged
in this action.See Toney v. Keil, No.
13-CV-03386-CMA-MJW, 2014 WL 4800275, at *8 (D. Colo. Sept.
26, 2014) (“Issues are identical if the inquiry
undertaken in both cases is identical and focuses on what
ordinary members of the legal profession would have done at
the time the ...