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Kadingo v. Johnson

United States District Court, D. Colorado

January 26, 2017

LYNN A. JOHNSON, in her official capacity as director of the Jefferson County Department of Human Services, and SUSAN E. BIRCH, in her official capacity as Executive Director of the Colorado Department of Health Care Policy and Financing, Defendants.


          Nina Y. Wang United States Magistrate Judge

         This 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.


         On 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].

         Because 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.

         Plaintiff's 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].[1] 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].

         In November 2011, Innovage[2] 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 ¶¶ 32-34].

         On July 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].

         An 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 Agency Decision)].

         Plaintiff 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].

         Then, 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].

         Though 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”)[3]; (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), [4] 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].

         Defendants 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' arguments below.


         I. Rule 12(b)(1)

         Federal 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)).

         For 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.”) (citation omitted).

         II. Rule 12(b)(6)

         Under 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.”).

         The 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, [5] 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).


         I. Mootness as to Claim IV

         Though 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].

         Mootness 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)).

         Defendants 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).

         Here, 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].

         Based 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.

         II. Issue and Claim Preclusion

         This 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. Id.

         Under 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)).

         Defendants 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.

         A. Issue Preclusion[6]

         Issue 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).

         “For 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.

         Here, 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].

         Plaintiff 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].

         Although 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.

         Accordingly, the court concludes that the issues raised in the underlying administrative proceeding were not identical to those alleged in this action.[7]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 ...

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