Case 6:99-cv-00021-MV-JHG Document 1 Filed 01/07/99 Page 1 of 15

IN

THE

UNITED

STATES

DISTRICT

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BEN LEWIS, AARON NORRID, BILLY JO QUISENBERRY, and FRED ROMERO, by and through their legal guardian and next friend THE ARC OF NEW MEXICO, BREANNE LIDDELL, by and through her parent and legal guardian JUDY LIDDELL, MATTHEW ALLEN, by and through his parents and legal guardians JIM and ANGELA ALLEN, FAYE MORGAN, DEBORAH EMINGER and PROTECTION AND ADVOCACY SYSTEM, INC.,

99 JAN -7 PH 2: 07

Plaintiffs,
v.
NEW MEXICO DEPARTMENT OF HEALTH, NEW MEXICO DEPARTMENT OF HUMAN SERVICES, 1. ALEX VALDEZ, Secretary of the Department of Health and Secretary Designee of the Department of Human Services in his official capacities, and GOVERNOR GARY JOHNSON in his official capacity,

No. elY 9 9 0 0 2 1 MV
JURXJ.!~MITH

Defendants.

COMPLAINT FOR VIOLAnON OF CIVIL RIGHTS AND INJUNCTIVE RELIEF

Plaintiffs for their Complaint state:

1. This is an action for declaratory and injunctive reliefto declare the Plaintiffs' rights under

and to remedy the Defendants' violations of the Medicaid Act, 42 U.S.c. §§ 1396 et seq., and

implementing regulations, and the Americans with Disabilities Act, 42 U.S.c. §§12101 et seq., and

implementing regulations, and to redress the deprivation ofPlaintiffs' constitutionally protected rights

to procedural and substantive due process under the Fifth and Fourteenth Amendments to the United

\

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States Constitution. Plaintiffs seek to remedy the pervasive and systematic failure of the Defendants to provide them and other individuals with disabilities with medically necessary services in a reasonably prompt manner in sufficient quantity to meet their needs as required by federal law. This action is brought under 42 US.c. §1983, 28 US.c. §2201 et seq., and 42 US.c. §12101.
2. Plaintiffs seek a declaration that the manner in which the Defendants operate two Medicaid "Home and Community-Based Services Waiver ("HCBWS")" programs under the Social Security Act and their agreement with the United States government, violates the Medicaid Act and the Americans with Disabilities Act, and violates their rights under the Fifth and Fourteenth Amendments to the United States Constitution, as protected by 42 US.c. §1983. The two HCBWS programs at issue are the ''Developmental Disabilities Home and Community-Based Services Waiver" (hereinafter the ''DD Waiver"), and the "Disabled and Elderly Home and Community-Based Services Waiver" hereinafter the "D&E Waiver").
3. HCBWS programs are categories of Medicaid services established to provide costeffective alternatives to institutional care for individuals like the Plaintiffs herein. 42 US.C. §1396n(c); 42 C.F.R. §440.180.
4. Plaintiffs seek injunctive relief directing the Defendants to comply with their obligations under 42 U.S.c. §§1396 et seq., to provide them with Medicaid assistance, and more specifically, DD and D&E waiver services, with reasonable promptness, and to comply with their obligations under Section 12132 of the ADA to provide them with services in the most integrated setting appropriate to their needs.
5. PlaintiffBen Lewis is a citizen of the United States, resident of Bernalillo County, New Mexico, has developmental disabilities, and is eligible to participate in the federally and state funded
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Medicaid program. The Arc ofNew Mexico, a non-profit New Mexico corporation, is Ben Lewis' legal guardian and brings this action on his behalf pursuant to Fed. R. Civ. P. 17(C). Plaintiff Lewis resided at Sun Village in Las Cruces, a federally funded, Intermediate Care facility for the Mentally Retarded (hereinafter "ICFIMR") from 1993 to 1996. Mr. Lewis has been on the waiting list for DD Waiver services since 1994. He was transferred to another ICFIMR in Albuquerque in 1996 because of significant deterioration in his health and because no alternative services and funding were available to permit his placement in a less restrictive, smaller community setting.
6. Plaintiff Aaron Norrid is a citizen of the United States, resident of Rio Arriba County, New Mexico, has developmental disabilities, and is eligible to participate in the federally and state funded Medicaid program. The Arc ofNew Mexico, a non-profit New Mexico corporation, is Aaron Norrid's legal guardian and brings this action on his behalf pursuant to Fed. R. Civ. P. 17(C). PlaintiffNorrid currently resides in an ICFIMR in Taos, New Mexico operated by Santa Maria EI Mirador. He was transferred from another ICFIMR operated by Santa Maria EI Mirador in Alcalde, New Mexico, because no services and funding were available to permit placement in a less restrictive, smaller community setting. Mr. Norrid was placed on the DD Waiver waiting list in 1993 when he was a resident of the CARC Farm, an ICFlMRfacility located in Carlsbad, New Mexico, where he resided for nine years.
7. Plaintiff Billy Jo Quisenberry is a citizen of the United States, a resident of Lincoln County, New Mexico, has developmental disabilities, and is eligible to participate in the federally and state funded Medicaid program. The Arc of New Mexico, a non-profit New Mexico corporation, is Billy Jo Quisenberry's legal guardian and brings this action on her behalf pursuant to Fed. R. Civ. P 17(C). Ms. Quisenberry is a resident ofthe Ruidoso Care Center ("the Care Center"), an ICFIMR
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in Ruidoso, New Mexico. She has resided at the Care Center since March, 1992. She was placed on the DD Waiver waiting list in 1994.
8. PlaintiffFred Romero is a citizen ofthe United States, a resident of Lincoln County, New Mexico, has developmental disabilities, and is eligible to participate in the federally and state funded Medicaid program. The Arc of New Mexico, a non-profit New Mexico corporation, is Fred Romero's legal guardian and brings this action on his behalf pursuant to Fed. R. Civ. P. 17(C). Plaintiff Romero has resided at the Ruidoso Care Center since 1981 and has been a resident of the ICFIMR unit at the Care Center since 1991. Mr. Romero was placed on the DD waiver waiting list in 1994. His medical status remains stable with no acute change or deterioration in his condition. Despite a critical need for an alternative placement out of the Care Center, Mr. Romero is unable to access DD Waiver services which would permit him to move to an alternative, less restrictive placement in the community.
9. PlaintiffBreanne Liddell is a citizen of the United States, resident of Bernalillo County, New Mexico, has developmental disabilities, and is eligible to participate in the federally and state funded Medicaid program. Judy Liddell is Breanne Liddell's parent, next friend and legal guardian and brings this action on her behalf pursuant to Fed. R. Civ. P. 17(C). Plaintiff Liddell has been on the waiting list for DD Waiver services since March of 1996 and has not received any such services since that time.
10. Plaintiff Matthew Allen is a citizen of the United States, resident of Santa Fe County, New Mexico, has developmental disabilities, and is eligible to participate in the federally and state funded Medicaid programs. Jim and Angela Allen are his parents, next friends and legal guardians, and bring this action on his behalf pursuant to Fed. R. Civ. P. 17(C). Plaintiff Allen has been on the
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waiting list for DD Waiver services since December of 1994 and has not received any such services since that time.
11. PlaintiffFaye Morgan, age 70, is a citizen ofthe United States, resident of Curry County, New Mexico, and is eligible to participate in federally and state funded Medicaid programs. Plaintiff Morgan is disabled on account of severe Chronic Obstructive Pulmonary disease. She has limited mobility, suffers from other ailments, and requires numerous medications and 24-hour oxygen. Her husband, age 79, is himself quite ill. Plaintiff Morgan adamantly wishes to avoid nursing home placement, and has sought D&E Waiver services for over two years, but is on a waiting list for the servIces.
12. PlaintiffDeborah Eminger, age 45, is a citizen ofthe United States, resident of Roosevelt County, New Mexico, and is eligible to participate in federally and state funded Medicaid programs. She is disabled on account of severe medical arthritis, which is worsening, and she has limited mobility. Her husband, who suffers from emphysema, now receives D&E Waiver services and is currently hospitalized, but PlaintiffEminger's needs go unmet. PlaintiffEminger adamantly wishes to avoid nursing home placement, and has sought D&E Waiver services for over two years, but is on a waiting list for the services.
13. None of the Plaintiffs identified above are Jackson class members. 14. Plaintiff New Mexico Protection and Advocacy System, Inc. (P&A) is the agency authorized by the United States Congress to advocate for the rights of persons with disabilities throughout the state of New Mexico. PlaintiffP&A has the authority to pursue legal remedies to ensure the protection ofthe rights of individuals with developmental and other disabilities. 42 U.S.c. §6042(a)(2)(A)(l); 29 U.S.c. §794e.
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15. Defendant New Mexico Department of Health is an agency of the State of New Mexico responsible for developing and implementing the provision of Medicaid Home and Community-Based Services Waiver (HCBWS) services to disabled individuals such as the individual Plaintiffs.
16. Defendant 1. Alex Valdez is the Secretary ofthe New Mexico Department of Health, and is responsible for all administrative, policy, budgetary and personnel matters for the Department of Health, including those which affect New Mexico's participation in Medicaid HCBWS programs, for the decisions which result in the funding of, placement in and maintenance of disabled persons in such programs, for the provision of Medicaid HCBWS services to disabled individuals such as the Plaintiffs, and for the direction, supervision and control of the agency which provides or arranges services to all persons with developmental disabilities. Defendant Valdez is also responsible for ensuring that DOH operates in conformity with federal law.
17. Defendant New Mexico Department of Human Services is the "single state agency" of the State of New Mexico responsible for the Administration of the Medicaid program in New Mexico. 42 U.S.c. §1396a(a)(5); 42 C.F.R. §431.1O.
18. Defendant 1. Alex Valdez is also Secretary-Designee of the New Mexico Department of Human Services and is responsible for all administrative, policy, budgetary and personnel matters for the Department of Human Services, including those which affect New Mexico's participation in Medicaid HCBWS programs, and for the decisions which result in the funding of, placement in and maintenance of disabled persons in such programs. Defendant Valdez is also responsible for ensuring that HSD is operated in conformance with federal law.
19. Defendant Governor Gary Johnson is the chief executive officer of the State of New
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Mexico, is obligated to uphold both the New Mexico and United States Constitutions, and is responsible for supervising Defendant Valdez' administration ofHSD and DOH. Defendant Gary Johnson is also responsible for proposing an adequate budget to the state legislature for DOH and HSD, and for ensuring that Defendant Valdez operates HSD and DOH in conformity with all applicable state and federal laws. Defendant Gary Johnson is also responsible for directing, supervising and controlling the executive departments of State government including the Department of Health and the Department of Human Services.
20. At all material times the Defendants acted under color of state law. 21. All of the individual Defendants are named and sued solely in their official capacities. 22. This Court has jurisdiction over this matter pursuant to 42 U.S.C. §1983, 42 U.S.c. §12133, and 28 U.S.c. §1331 and §1343(3) and (4). The actions complained of herein occurred in New Mexico and venue is therefore proper and is otherwise appropriate.
COUNT I - VIOLATION OF 42 U.S.c. §1983; FAILURE TO PROVIDE
MEDICAID nn WAIVER SERVICES WITH REASONABLE PROMPTNESS
23. Plaintiffs incorporate by reference all preceding allegations as if fully set forth herein. 24. New Mexico voluntarily participates in the federal Medicaid program under 42 U.S.c. §§1396 et seq., and as a condition ofits participation in that program, must ensure that services which are medically necessary for eligible persons with developmental disabilities are provided to them in a reasonably prompt manner. The Medicaid program in New Mexico includes the provision of services to persons with developmental disabilities such as Plaintiffs, including services through the DD Waiver program. 25. The Plaintiffs are eligible for and have applied for services under the DD Waiver
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program. Plaintiffs applied for such services several years prior to the filing of this Complaint. 26. Federal law requires any State which has elected to participate in the Medicaid program
under 42 U.S.c. §§ 1396 et seq., to provide all services including DD Waiver services to eligible persons with reasonable promptness. 42 U.S.C. §1396a(a)(8); 42 C.F.R. §435.930.
27. Plaintiffs have not been provided with any such services despite the fact they applied for such services several years ago. Instead, the Defendants have placed Plaintiffs Lewis, Norrid, Quisenberry, Romero, Allen and Liddell (hereinafter collectively referred to as DD Waiver Plaintiffs) on a ''waiting list", which is comprised ofa list of persons who have applied for DD Waiver services, but whom have not received any such services.
28. Upon information and belief, the Defendants have failed to provide DD Waiver services to other individuals besides DD Waiver Plaintiffs on this waiting list for over eight and onehalf years.
29. Defendants have administered and continue to administer the state Medicaid system in a manner which limits the availability ofDD Waiver services to the DD Waiver Plaintiffs and other similarly situated persons, and which precludes the provision of such services to the Plaintiffs and others in a reasonably prompt manner.
30. The failure to provide Medicaid DD Waiver services to eligible individuals with reasonable promptness is proximately caused by the Defendants' arbitrary and unreasonable policies, practices and funding decisions, their failure to request and allocate sufficient funding for Medicaid waiver service programs, and their failure to fill existing positions of employment within the New Mexico Departments of Health and Human Services, and to create and fund new positions of employment within those agencies which are needed to administer the Medicaid waiver program in
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accordance with the requirements of federal law. 31. Defendants' failure to provide Medicaid DD Waiver services to eligible individuals in a
reasonably prompt manner violates Plaintiffs' rights under the Social Security Act and its implementing regulations and the Fifth and Fourteenth Amendments to the United States Constitution, and thus constitutes a violation of 42 US. C. §1983 .
32. Plaintiffs have suffered harm, and will continue to suffer harm in the future as a direct and proximate result of the Defendants' violations of Plaintiffs' federally guaranteed rights to receive medically necessary services in a reasonably prompt manner.
COUNT n - VIOLATION OF 42 U.S.C. §1983; FAILURE TO PROVIDE
MEDICAID D&E WAIVER SERVICES WITH REASONABLE PROMPTNESS 33. Plaintiffs incorporate by reference all preceding allegations as iffully set forth herein. 34. New Mexico voluntarily participates in the federal Medicaid program under 42 US.C.
§§1396 et seq., and as a condition of its participation in that program, must ensure that services which are medically necessary for eligible persons with disabilities are provided to them in a reasonably prompt manner. The Medicaid program in New Mexico includes the provision of services to persons with disabilities such as Plaintiffs Morgan and Eminger, including services through the D&E Waiver program.
35. Plaintiffs Morgan and Eminger are eligible for and have applied for services under the D&E Waiver program. Plaintiffs applied for such services over two years prior to the filing of this Complaint.
36. Federal law requires any State which has elected to participate in the Medicaid program under 42 US. C. §§1396 et seq., to provide all services including D&E Waiver services to eligible
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persons with reasonable promptness. 42 U. S.c. §1396a(a)(8); 42 C.F.R. §435.930. 37. These Plaintiffs have not been provided with any such services despite the fact they
applied for such services over two years ago. Instead, the Defendants have placed these Plaintiffs on a "waiting list", which is comprised of a list of persons who have applied for D&E Waiver services, but whom have not received any such services.
38. Upon information and belief, the Defendants have failed to provide D&E Waiver services to other individuals besides Plaintiffs Morgan and Eminger on this waiting list for over eight and one-halfyears.
39. Defendants have administered and continue to administer the state Medicaid system in a manner which limits the availability ofD&E Waiver services to Plaintiffs Morgan and Eminger and other similarly situated persons, and which precludes the provision of such services to these Plaintiffs and others in a reasonably prompt manner.
40. The failure to provide Medicaid D&E Waiver services to eligible individuals with reasonable promptness is proximately caused by the Defendants' arbitrary and unreasonable policies, practices and funding decisions, their failure to request and allocate sufficient funding for Medicaid waiver service programs, and their failure to fill existing positions of employment within the New Mexico Departments of Health and Human Services, and to create and fund new positions of employment within those agencies which are needed to administer the Medicaid waiver program in accordance with the requirements of federal law.
41. Defendants' failure to provide Medicaid waiver services to eligible individuals in a reasonably prompt manner violates Plaintiffs' rights under the Social Security Act and its implementing regulations and the Fifth and Fourteenth Amendments to the United States
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Constitution, and thus constitutes a violation of 42 V.S.c. §1983. 42. Plaintiffs have suffered hann, and will continue to suffer harm in the future as a direct and
proximate result of the Defendants' violations of Plaintiffs' federally guaranteed rights to receive medically necessary services in a reasonably prompt manner.
COUNT ill - VIOLAnON OF THE AMERICANS WITH DISABILITIES ACT; FAILURE TO PLACE PLAINTIFFS IN LEAST RESTRICTIVE SETTING (DD WAIVER) 43. Plaintiffs incorporate by reference all preceding allegations as iffully set forth herein. 44. The individual DD Waiver Plaintiffs are qualified individuals with disabilities as defined by the Americans with Disabilities Act, 42 U.S.c. §12131(2). 45. The DD Waiver program is a public service covered by Title II of the Americans with Disabilities Act 42 U.S.c. §§12115 et seq. 46. Defendants are governmental entitles, covered by Title II of the Americans with Disabilities Act 42 U.S.C. §§12115 et seq. 47. The Americans with Disabilities Act requires that governmental entities administer programs in the most integrated setting appropriate to the needs of the individual with disabilities. 28 C.F.R. 35.130(d). Institutions, including ICF/fvfRs, are a more segregated setting than HCBWS services settings. 48. Because Plaintiffs Lewis, Norrid, Quisenberry and Romero have been denied services under the DD Waiver, they are not able to reside in the most integrated setting appropriate to their needs. 49. Because these Plaintiffs have been denied services under the DD Waiver, they are at risk of being transferred to an even more segregated setting, a skilled nursing facility.
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50. By failing to make DD Waiver services available to these Plaintiffs and confining them to institutions, Defendants are in violation of the Americans with Disabilities Act.
COUNT IV - VIOLATION OF THE AMERICANS WITH DISABILITIES ACT; FAILURE TO PLACE PLAINTIFFS IN LEAST RESTRICTIVE SETTING (P&E WAIVER) 51. Plaintiffs incorporate by reference all preceding allegations as if fully set forth herein. 52. The individual Plaintiffs are qualified individuals with disabilities as defined by the Americans with Disabilities Act, 42 V.S.c. §12131(2). 53. The D&E Waiver program is a public service covered by Title II of the Americans with Disabilities Act 42 U.S.c. §§12115 et seq. 54. Defendants are governmental entitles, covered by Title II of the Americans with Disabilities Act 42 U.S.C. §§12115 et seq. 55. The Americans with Disabilities Act requires that governmental entities administer programs in the most integrated setting appropriate to the needs of the individual with disabilities. 28 c.P.R. 35. 130(d). Institutions, including nursing facilities, are a more segregated setting than HCBWS services settings. 56. Because Plaintiffs Morgan and Eminger have been denied services under the D&E Waiver, they are at risk of being unable to receive services and reside in the most integrated setting appropriate to their needs. 57. Because these Plaintiffs have been denied services under the D&E Waiver, they are at risk of being transferred to a more segregated setting, a skilled nursing facility. 58. By failing to make D&E Waiver services available to these Plaintiffs and confining them to institutions, Defendants are in violation of the Americans with Disabilities Act. Upon information
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and belief, the Defendants have failed to provide D&E Waiver services to other individuals who needlessly reside in nursing facilities. PlaintiffP&A claims that this failure constitutes a violation of the Americans with Disabilities Act.
COUNT V - DECLARATORY JUDGMENT 59. Plaintiffs incorporate by reference all preceding allegations as iffully set forth herein. 60. Plaintiffs bring this claim for declaratory relief pursuant to 28 U.S.c. §2201. 61. An actual controversy exists between the Plaintiffs and the Defendants with respect to the nature and extent of the Plaintiffs' rights under the Americans with Disabilities Act (ADA), the federal Medicaid laws and regulations including 42 U.S.c. §1396(a)(8), and with respect to whether the Defendants are required by federal law to provide Plaintiffs with necessary medical treatment and services with reasonable promptness, whether the Defendants are complying with this obligation, and what the Medicaid laws and regulations and the United States Constitution oblige the Defendants to do in the way of providing necessary services to the Plaintiffs. 62. Plaintiffs request that this Court declare the rights and obligations of the respective parties under applicable federal Medicaid laws and regulations, the Americans with Disabilities Act, and the United States Constitution. WHEREFORE, Plaintiffs respectfully request that this Court grant them the following relief: 1. Declare that the Defendants have violated the Plaintiffs' rights under the Social Security Act and implementing regulations by failing and refusing to provide them with HCBWS services in a reasonably prompt manner; 2. Declare that the Defendants have violated the Plaintiffs' rights under the Americans with Disabilities Act and implementing regulations by failing to provide them with HCBWS services and
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thus failing to provide them with services in the most integrated setting appropriate to their needs; 3. Declare that the Defendants have violated the Plaintiffs' rights to procedural and
substantive due process under the Fifth and Fourteenth Amendments to the United States Constitution;
4. Enter a permanent injunction requiring Defendants to provide the Plaintiffs and other similarly situated persons with medically necessary HCBWS services with reasonable promptness;
5. Enter a permanent injunction requiring the Defendants to provide the Plaintiffs with services in the most integrated setting appropriate to their needs;
6. Award Plaintiffs reasonable attorneys' fees and costs; and 7. Award such other and further relief as the Court deems just and proper.

Respectfully submitted,

SANDERS & WESTBROOK'iP,C,

By:

111

.----'t"'=-tI-''-ft;f~U<....L.-----

DuffWest 0

812 Marquett

Albuquerque, New Mexico 87102

(505) 243-2243

Attomeys for Plaintiffs Ben Lewis, Aaron Norrid, Billy Jo Quisenberry, Fred Romero, The Arc ofNew Mexico, Breanne Liddell, and Matthew Allen

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Case 6:99-cv-00021-MV-JHG Document 1 Filed 01/07/99 Page 15 of 15 PROTECTION & ADVOCACY SYSTEM, INC.
V. Colleen Miller 1720 Louisiana Blvd. NE, #204 Albuquerque, New Mexico 87110 (505) 256-3100 Attorneys for Plaintiffs Faye Morgan, Deborah Eminger and Protection and Advocacy System, Inc.
15

 
 94 F.Supp.2d 1217 (2000)
Ben LEWIS, Aaron Norrid, Billy Jo Quisenberry and Fred Romero, by and through their legal guardian and next of friend the Arc of New
Mexico, Breanne Liddell, by and through her parent and legal guardian Judy Liddell, Matthew Allen, by and through his parents and legal
guardians Jim and Angela Allen, Fay Morgan, Deborah Eminger and Protection and Advocacy System, Inc., Plaintiffs, v.
NEW MEXICO DEPARTMENT OF HEALTH, New Mexico Department of Human Services, J. Alex Valdez, Secretary of the Department of Health
and Secretary Designee of the Department of Human Services in his official capacities, and Governor Gary Johnson in his official capacity,
Defendants.
No. CIV.99-0021MVRLP.
United States District Court, D. New Mexico.
April 24, 2000.
1218*1218 1219*1219 1220*1220 1221*1221 Duff Westbrook, Michael C. Parks, Albuquerque, NM, V. Colleen Miller, for Plaintiffs.
Charles A. Pharris, Kurt Wihl, Margaret Davidson, Gary J. Van Luchene, Albuquerque, NM, for Defendants.
AMENDED MEMORANDUM OPINION AND ORDER
VAZQUEZ, District Judge.
THIS MATTER is before the Court on Defendants' Motion to Dismiss Based on Sovereign Immunity, filed June 14, 1999 [Doc. No. 25]; Defendants' Motion to Dismiss Pursuant to Rule 12(b)(6), filed June 14, 1999 [Doc. No. 20]; and Defendants' Motion to Dismiss Governor Gary Johnson, filed June 14, 1999 [Doc. No. 12]. The Court, having considered the motions, responses, replies, relevant law and being otherwise fully informed, finds that the Motion to Dismiss Based on Sovereign Immunity and Motion to Dismiss Governor Gary Johnson are well-taken in part and will be denied in part and granted in part and that the Motion to Dismiss Pursuant to Rule 12(b)(6) is not well-taken and will be denied.
BACKGROUND
Plaintiffs are individuals who are eligible to participate in Medicaid programs because they have physical or developmental disabilities or because of their advanced age, and Protection and Advocacy — an agency that advocates for the rights of persons with disabilities. Medicaid is a cooperative federal-state program under 1222*1222 which participating states obtain federal funds for their programs and must comply with the requirements of the Medicaid Act, 42 U.S.C. §§ 1396 et seq., and its implementing regulations. Under the Medicaid Act, participating states can apply to the Secretary of Health and Human Services for a waiver of certain requirements so that they can use Medicaid funds to pay for home and

community-based health services. 42 U.S.C. § 1396n(c). New Mexico is a participating state that has developed two waiver programs at issue in this case — the Developmental Disabilities Home and Community-Based Services Waiver ("DD Waiver") and the Disabled and Elderly Home and CommunityBased Services Waiver ("D & E Waiver") (together "waiver programs" or "waiver services"). Plaintiffs allege that pursuant to the Medicaid Act, they are entitled to less restrictive home and community-based services with "reasonable promptness," 42 U.S.C. § 1396a(a)(8), instead of the institutional care they now receive, but that they have been on waiting lists to receive these less restrictive waiver services for as many as seven years.
According to Plaintiffs' Amended Complaint, Defendants New Mexico Department of Health ("DOH") and New Mexico Department of Human Services ("HSD") are the departments responsible for implementing the waiver program for persons with disabilities and for administering New Mexico's Medicaid program, respectively. Defendant J. Alex Valdez is named in his official capacities as Secretary of DOH and Secretary-Designee of HSD. Lastly, Gary Johnson, Governor of New Mexico, is sued in his official capacity. Plaintiffs aver that the Governor must uphold the Constitution and other laws; is responsible for appointing and supervising executive department heads, including Valdez; is responsible for proposing a budget adequate to fund DOH and HSD; and has authority for applying for federal funds for the waiver programs at issue.
Plaintiffs complain that Defendants have failed to provide people with disabilities with the Medicaid waiver programs to which they are entitled, in violation of the Medicaid Act, 42 U.S.C. §§ 1396 et seq. and implementing regulations; the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 1201 et. seq. and implementing regulations; and procedural and substantive due process under the Fifth and Fourteenth Amendments, in violation of 42 U.S.C. § 1983. Specifically, Plaintiffs allege that Governor Johnson has directed Valdez and his predecessors not to plan for increases in the DOH and HSD budgets which has prevented Valdez from submitting budgets with sufficient funds for the waiver programs. Moreover, Plaintiffs complain that Governor Johnson directed that some persons with developmental disabilities who were receiving necessary services be moved to waiver programs. According to Plaintiffs, Governor Johnson used the resulting savings for the state general fund, which meant that fewer people received waiver services. Plaintiffs allege that Governor Johnson and Valdez have not requested needed funds for the waiver services and Governor Johnson vetoed additional funds, despite their knowledge that several hundred persons are waiting for such services. Plaintiffs seek a declaration that the current operation of the waiver programs violates federal law and injunctive relief directing Defendants to comply with the Medicaid Act by providing waiver services with reasonable promptness, and with the ADA by providing settings in the most integrated services possible given each Plaintiff's needs.
Defendants have moved to dismiss the action, claiming sovereign immunity under the Eleventh Amendment, and arguing that Plaintiff's cannot state a claim upon which relief can be granted. Defendant Governor Johnson has moved to dismiss for failure to state claim against him.
ANALYSIS
I. Eleventh Amendment Sovereign Immunity[1]
The Eleventh Amendment provides:
1223*1223 The 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 Subjects of any Foreign State.
The Eleventh Amendment has been interpreted as imposing a jurisdictional bar against individuals bringing suit against a state or its agencies in federal court. See Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 304, 110 S.Ct. 1868, 109 L.Ed.2d 264 (1990). However, sovereign immunity under

the Eleventh Amendment is not absolute. A state may consent to be sued in federal court and Congress may abrogate Eleventh Amendment protections. Id. In Ex parte Young, 209 U.S. 123, 158-59, 28 S.Ct. 441, 52 L.Ed. 714 (1908), the Supreme Court created another exception of sorts, holding that the Eleventh Amendment does not bar a suit for prospective injunctive relief against a state official who violates federal law. Because both state agencies and officers are named as Defendants in this case, the Court will consider each set of Defendants in turn as they implicate different issues — Eleventh Amendment abrogation and the Ex parte Young doctrine.
A. Abrogation of State Sovereign Immunity Under the ADA
Plaintiffs concede that the Eleventh Amendment precludes section 1983 claims against state agencies, but point out that the only claims they have brought against the agencies are under the ADA. These claims, Plaintiffs assert, can properly be maintained because Congress abrogated the states' Eleventh Amendment sovereign immunity when it enacted the ADA. Defendants contend that DOH and HSD must be dismissed because the ADA creates new rights not guaranteed by the Constitution and is consequently an invalid exercise of Congressional power which did not validly abrogate state sovereign immunity. Moreover, Defendants argue that Congress did not clearly declare its intent to abrogate the immunity when it enacted the ADA.
In Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), the Supreme Court developed a two-prong test for determining whether Congress has properly abrogated a state's sovereign immunity: "first, whether Congress has `unequivocally expressed its intent to abrogate the immunity;' and second, whether Congress has acted `pursuant to a valid exercise of power.'" Id. at 55, 116 S.Ct. 1114 (quoting Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985)). Congress may abrogate state sovereign immunity under § 5 of the Fourteenth Amendment, id. at 57, 116 S.Ct. 1114; see also Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976), but may not do so pursuant to its powers under Article I. See Kimel v. Florida Bd. of Regents, ___ U.S. ___, 120 S.Ct. 631, 643, 145 L.Ed.2d 522 (2000); Seminole Tribe at 66, 116 S.Ct. 1114 (overruling Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989), and holding that Congress may not abrogate state sovereign immunity pursuant to the Interstate Commerce Clause).
Turning to the first part of Seminole Tribe, the Court finds that Congress 1224*1224 unmistakably expressed its intent to abrogate state sovereign immunity under the ADA. Accord Clark v. State of California, 123 F.3d 1267, 1269 (9th Cir.1997). The statute expressly provides, "[a] State shall not be immune under the eleventh amendment ... from an action in Federal or State court of competent jurisdiction for a violation of this chapter." 42 U.S.C. § 12202.
Applying the second portion of the Seminole Tribe test, the Court must assess whether Congress acted pursuant to a valid exercise of power when it enacted the ADA. Most Circuits have held that Congress did properly abrogate state sovereignty as to the ADA. Compare Martin v. Kansas, 190 F.3d 1120, 1125-29 (10th Cir.1999) (holding that the enactment of the ADA is a valid exercise of Congress's Fourteenth Amendment powers); Dare v. California, 191 F.3d 1167, 1174-75 (9th Cir.1999) (same) petition for cert. filed (Feb. 24, 2000) (No. 99-1417); Muller v. Costello, 187 F.3d 298, 308-11 (2d Cir. 1999) (same); Amos v. Maryland Dept. of Pub. Safety and Correctional Servs., 178 F.3d 212, 216-23 (4th Cir.1999) (same) reh'g en banc granted; Coolbaugh v. Louisiana, 136 F.3d 430, 432-38 (5th Cir.) (same), cert. denied, 525 U.S. 819, 119 S.Ct. 58, 142 L.Ed.2d 45 (1998); with Alsbrook v. City of Maumelle, 184 F.3d 999, 1005-09 (8th Cir.1999) (en banc) (holding that Title II of the ADA is not a valid exercise of Congress's § 5 enforcement powers) cert. granted, ___ U.S. ___, 120 S.Ct. 1003, 145 L.Ed.2d 947 (2000), and cert. dismissed, ___ U.S. ___, 120 S.Ct. 1265, ___ L.Ed.2d ___ (2000); Brown v. North Carolina Div. of Motor Vehicles, 166 F.3d 698, 702-10 (4th Cir.1999) (holding that regulation prohibiting public entities from charging fee for costs of accessibility program is not a constitutionally valid exercise of § 5 power) petition

for cert. filed, 68 U.S.L.W. 3164 (Sept. 8, 1999) (No. 99-424). Though the weight of authority, and the authority in the Tenth Circuit holds that the ADA did validly abrogate state sovereignty, because a recent Supreme Court case, Kimel v. Florida Bd. of Regents, ___ U.S. ___, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000), has further developed this area of jurisprudence, the Court feels it necessary to apply this and other recent precedent in determining the sovereign immunity issue in this case.
In City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), the Supreme Court clarified the scope of Congress's power to enforce the Fourteenth Amendment pursuant to § 5. While acknowledging that § 5 is a "positive grant of legislative power' to Congress," id. at 517, 117 S.Ct. 2157 (quoting Katzenbach v. Morgan, 384 U.S. 641, 651, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966)), the Court explained that Congress's power under § 5 is limited to enacting remedial or preventative measures, and does not permit Congress to substantively expand Fourteenth Amendment rights. Id. at 519, 117 S.Ct. 2157. It is the province of the Court to determine the scope of constitutional rights. The Court was careful to note that distinguishing between remedial and substantive legislation is a difficult line to draw and that Congress must be granted "wide latitude in determining where it lies." Id. at 519-20, 117 S.Ct. 2157. The Court crafted the "congruence and proportionality" test for assessing the bounds of Congress's legislative scope under § 5, explaining that for legislation to be valid, "there must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." Id. at 520, 117 S.Ct. 2157. The Court has applied this test several times, further elucidating its meaning.
In City of Boerne itself, the Court held that the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. § 2000bb et seq., exceeded Congress's power. Id. at 1225*1225 511, 117 S.Ct. 2157. RFRA required that all laws which burden religion, even neutral laws of general applicability, be narrowly tailored and required by a compelling interest. The Court struck down the law on several bases. First, the Court noted that it was important to assess legislation and the wrongs they seek to remedy in their historical context. Id. at 525, 117 S.Ct. 2157. For example, much legislation protecting voting rights has been upheld in part because it was designed in response to a shameful history of widespread and lasting voting discrimination and was crafted expressly to remedy and prevent that discrimination. Id. at 52526, 117 S.Ct. 2157. By contrast, the Court found that "RFRA's legislative record lacks examples of modern instances of generally applicable laws passed because of religious bigotry." Id. at 530, 117 S.Ct. 2157. The Court found that the focus in enacting RFRA was on generally applicable laws which incidentally burden religion. Id. Second, the Court held that RFRA failed the "congruence and proportionality" test because it extended so broadly, "ensur[ing] intrusion at every level of government, displacing laws and prohibiting official actions of almost every description and regardless of subject matter." Id. Further, the Court found that RFRA was not remedial or preventative. Rather, it impermissibly expanded constitutional rights by imposing a high standard of review for any laws which incidentally burden religion, though most such laws were not enacted out of religious animosity. This very broad scope of laws impacted would unduly burden states. Id. at 534-35, 117 S.Ct. 2157.
The Supreme Court further clarified the scope of Congress's enforcement powers under the Fourteenth Amendment in Kimel and Florida Prepaid Postsecondary Educ. Expense Bd. v. College Savings Bank, 527 U.S. 627, 119 S.Ct. 2199, 144 L.Ed.2d 575 (1999). In Florida Prepaid, the Court held that Congress did not have authority under the Fourteenth Amendment to abrogate state sovereign immunity from suits under the Patent and Plant Variety Protection Remedy Clarification Act (Patent Remedy Act). The Court found that the Patent Remedy Act failed the "congruence and proportionality" test in part because Congress failed to identify systematic patent infringement by the states when it enacted the statute. Id. at 2207-08. Infringement of a patent by a state alone is not unconstitutional. Id. at 2208. Rather, a state violates the Constitution only if it "provides no remedy, or only inadequate remedies, to injured patent owners for its infringement of their patent." Id. (citing Parratt v. Taylor, 451 U.S. 527, 539-31, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981); Hudson v. Palmer, 468 U.S. 517, 532-33, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984)). Congress did not make findings indicating that the Patent Remedy Act was aimed at such unconstitutional infringement. "The legislative record thus suggests that the Patent Remedy Act does not respond to a history of `widespread and persisting deprivation of constitutional rights' of the sort Congress has faced in enacting proper prophylactic § 5 legislation." Id. at 2210 (quoting City of Boerne, 521 U.S. at 526, 117 S.Ct. 2157). Further, the Court found that there was little likelihood that the acts of infringement

covered by the Patent Remedy Act were unconstitutional. Rather, the statute's goal was to "provide a uniform remedy for patent infringement and to place States on the same footing as private parties under the regime." Id. at 2211.
Recently, in Kimel, ___ U.S. ___, 120 S.Ct. at 650, the Supreme Court held that Congress's intent to abrogate states' immunity in the Age Discrimination in Employment Act of 1967 (ADEA) was unmistakably clear, but that Congress could not validly abrogate states' immunity to suits under the ADEA pursuant to § 5 of the Fourteenth Amendment. Applying the 1226*1226 "congruence and proportionality" test in Kimel, the Court held that the ADEA was not "appropriate legislation" under the enforcement clause of the Fourteenth Amendment. Id. at 645. The Court based this holding on findings about age discrimination, distinguishing it in several important ways from race and sex discrimination. First, it noted that classifications based on age "cannot be characterized as `so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy.'" Id. (quoting Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985)). The Court went on to note that there is not the same history of age discrimination as race and sex discrimination. Further, the Court reasoned that older persons are not a discrete and insular minority because anyone who lives long enough will experience old age. The Court found that the ADEA's broad prohibition against age classifications goes far beyond the standard for age discrimination under the Equal Protection Clause, and that the ADEA could not be construed as responding to constitutional violations. Id. at 647. However, this was not determinative. As the Court stated, "that the ADEA prohibits very little conduct likely to be held unconstitutional, while significant, does not alone provide the answer to our § 5 inquiry." Id. at 648. Rather, the Court assessed whether the ADEA was remedial or substantive, looking to the legislative record to identify the "evil" the legislation aimed to abolish. The Court found that Congress did not identify any systematic age discrimination by the states when it extended the ADEA to the states, nor did it identify instances of unconstitutional age discrimination. Id. at 649. On these bases, the Court held that the ADEA did not validly abrogate state sovereign immunity.
This Court now turns to apply this precedent to the ADA, remembering the Court's admonition that "[i]t is for Congress in the first instance to `determin[e] whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment,' and its conclusions are entitled to much deference." City of Boerne, 521 U.S. at 536, 117 S.Ct. 2157 (quoting Katzenbach v. Morgan, 384 U.S. 641, 651, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966)). First, the Court must identify the "constitutional wrong or evil" at which the ADA was aimed. Florida Prepaid, 119 S.Ct. at 2210. Congress made clear in its extensive legislative findings and record that the ADA was designed to remedy the long-standing, purposeful discrimination against persons with disabilities. Congress's findings include the following:
(2) historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem;
(3) discrimination against individuals with disabilities persists in such critical areas as ... institutionalization, health services, ... and access to public services; ....
(5) individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of ... barriers, overprotective rules and policies, failure to make modifications to existing facilities and practices, exclusionary qualification standards and criteria, segregation, and relegation to lesser services, programs activities, benefits, jobs or other opportunities;
(6) census data, national polls, and other studies have documented that people with disabilities, as a group, occupy an inferior status in our society, and are severely disadvantaged socially, vocationally, economically, and educationally;
1227*1227 (7) individuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions ....

42 U.S.C. § 12101(a). Moreover, the legislative record includes references to much intentional discrimination against individuals with disabilities, by both public and private actors. See H.R. Rep. 101485(II), at 29-30 (1989), reprinted in 1990 U.S.C.C.A.N. 903, 311-12 (testimony of Judith Heumann recounting being repeatedly excluded: from public school because her wheelchair might be a fire hazard, from living in a college dormitory, from teaching, and from an auction house because she and her disabled friend were "disgusting to look at"); id. at 30 (referring to Alexander v. Choate, 469 U.S. 287, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985), as a case example of disability discrimination in which a court ruled that a cerebral palsied child should be excluded from public school because his teacher felt his appearance "`produced a nauseating effect' on his classmates"); id. at 40 (testimony regarding town hall and public school's failure to be accessible to people with disabilities); id. at 41 (testimony about paralyzed people being excluded from school and jobs and being deemed unfit parents); id. at 85 (case of a deaf woman who died because of the police's failure to respond when her husband tried to call 911 using his telecommunication device for the deaf (TDD)); H.R. Rep. 101-485(III), at 50 (1989), reprinted in 1990 U.S.C.C.A.N. 445, 473 (persons with epilepsy are frequently wrongly arrested and then denied their medication in jail). In short, this record tells a vivid story of people with disabilities being excluded from or mistreated in a range of public services because of prejudice, malice, and ignorance about the needs and abilities of people with disabilities.
Many of the wrongs the ADA seeks to remedy are constitutional violations. In Cleburne, 473 U.S. at 446, 105 S.Ct. 3249, the Supreme Court held that arbitrary discrimination against persons with disabilities violates the Equal Protection Clause. As noted, the ADA's legislative record includes numerous examples of arbitrary, intentional disability discrimination including excluding children from public schools and wrongly arresting persons with epilepsy. Accordingly, the Court finds that the ADA is aimed at remedying, at least in part, constitutional wrongs. This is all that is required. Importantly, legislation enacted under Congress's Fourteenth Amendment power is not restricted so narrowly that it need remedy only constitutional violations. As the Supreme Court has noted, "[l]egislation which deters or remedies constitutional violations can fall within the sweep of Congress' enforcement power even if in the process it prohibits conduct which is not itself unconstitutional and intrudes into `legislative spheres of autonomy previously reserved to the States.'" City of Boerne, 521 U.S. at 518, 117 S.Ct. 2157 (quoting Fitzpatrick v. Bitzer, 427 U.S. 445, 455, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976)).
The legislative record of the ADA stands in stark contrast to RFRA, the Patent Remedy Act, and the ADEA. None of the latter three had legislative records documenting systematic constitutional violations. The ADA, however, was crafted to remedy specific, substantiated problems of disability discrimination — isolation and segregation, discrimination in employment and in the provision of public services, stereotypic assumptions, physical barriers, and overprotective rules. See 42 U.S.C. § 12101(a). Moreover, much of the Supreme Court's reasoning in Kimel regarding age discrimination does not apply to 1228*1228 disability discrimination. The Kimel Court found that older persons have not suffered from systematic, historic discrimination and that the group protected by the ADEA — persons over the age of forty years, is not a discrete and insular minority, in part because anyone who lives long enough will become part of the group. By contrast, the ADA's legislative findings and record make clear the history of purposeful, pervasive discrimination against persons with disabilities. Though persons with disabilities are a diverse group including those with physical, mental and developmental disabilities, those born with a disability and those disabled later in life, Congress aptly demonstrated that they are a group who have suffered from longstanding, widespread exclusion and mistreatment because of their disability. See Coolbaugh v. State of La., 136 F.3d 430, 435-37 (5th Cir.) (detailing the numerous studies upon which Congress relied in concluding that disability discrimination is a pervasive and severe problem needing a comprehensive solution), cert. denied, 525 U.S. 819, 119 S.Ct. 58, 142 L.Ed.2d 45 (1998).
Next, the Court must assess whether the remedy enacted is proportional to the wrong of pervasive disability discrimination. At the outset, the Court notes that Congress is owed great deference in determining how best to remedy disability discrimination. As the Supreme Court has stated, "[h]ow this large and diversified group is to be treated under the law is a difficult and often a technical matter, very much a task for legislators guided by qualified professions and not by the perhaps ill-informed opinions of the judiciary." Cleburne, 473 U.S. at 442-42, 105 S.Ct. 3249. In enacting the ADA, Congress noted the

widespread nature of disability discrimination, identifying specific problems such as segregation and lack of access to public services that it sought to address. Congress then crafted the statute to address the particular areas of discrimination it had identified — employment discrimination addressed in Title I, discrimination in public services and transportation covered by Title II, and discrimination in public accommodations and in services operated by private entities confronted by Title III. At issue in this case is Title II which provides that, "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. The ADA only requires public entities to provide services to "qualified individual[s] with a disability" — persons who meet the essential eligibility requirements of the program with or without modifications. 42 U.S.C. § 12131(2). This protects persons with disabilities from being excluded because of stereotypes, animus, or overprotective rules, while not requiring public entities to alter their essential eligibility requirement under the ADA. This is proportional to the widespread discrimination against persons with disabilities at which the ADA is aimed, and stands in contrast to provisions which the Court has held violate the proportionality requirement. In Kimel, for example, the Court held that the ADEA was not appropriate legislation under the Fourteenth Amendment in part because, while the Constitution only required that age classifications must be rationally related to a legitimate state interest, under the ADEA, "the State's use of age is prima facie unlawful." Kimel, 120 S.Ct. at 647. Because Congress had not identified a history of invidious discrimination based on age, the Court held that this broad prohibition was disproportional to the wrong identified. Id. The ADA, by contrast, is based on findings of pervasive disability discrimination and has important limits on its scope — such as the "qualified individual with a disability" provision. Accordingly, this Court holds that Title II of the ADA is a valid exercise of Congress's § 5 powers.
1229*1229 The ADA claims in this case are brought pursuant to the "integration mandate," which provides, "[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. § 35.130(d). The "integration mandate" is limited by another regulation providing that a public entity need not modify its programs to prevent discrimination based on disability if such modification would "fundamentally alter" the service or program. 28 C.F.R. § 35.130(b)(7). Having determined that Title II of the ADA was a constitutional exercise of power, the Court will not invalidate this regulation. Formal agency regulations are given deference and receive "controlling weight unless arbitrary, capricious or manifestly contrary to the statute." Martinez v. Flowers, 164 F.3d 1257 (10th Cir.1998) (quoting Chevron U.S.A., Inc., v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). Given that Congress identified segregation as one of the issues at which the ADA was aimed, the regulation requiring the provision of services in the most integrated setting possible unless this would require a fundamental change in the program, is certainly not arbitrary, capricious, or contrary to the statute.
For the foregoing reasons, the state agency defendants — DOH and HSD, do not have a state sovereign immunity defense from the ADA claims.
B. State Official Defendants: Ex Parte Young Doctrine
In Ex parte Young the Supreme Court announced an exception of sorts to the Eleventh Amendment — a plaintiff may obtain prospective equitable relief against a state official in federal court. See Ex parte Young, 209 U.S. 123, 158-59, 28 S.Ct. 441, 52 L.Ed. 714 (1908); see also Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 288, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997) (O'Connor, J., concurring) ("The Young doctrine recognizes that if a state official violates federal law, he is stripped of his official or representative character and may be personally liable for his conduct; the State cannot cloak the officer in its sovereign immunity"). The Ex parte Young doctrine has several important limits. Federal courts do not have jurisdiction over suits seeking to require state officials to comply with state law. The Ex parte Young rule applies only to alleged violations of federal law. See Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 106, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) ("[I]t is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law.... We conclude that Young and Edelman are inapplicable in a suit against state

officials on the basis of state law"). Second, Ex parte Young applies only to ongoing violations — not suits seeking retroactive or compensatory wrongs. See Papasan v. Allain, 478 U.S. 265, 277-78, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) ("Young has been focused on cases in which a violation of federal law by a state official is ongoing as opposed to cases in which federal law has been violated at one time or over a period of time in the past"). Further, though the doctrine will allow injunctive relief with a substantial ancillary effect on state funds, it does not permit an award for relief that is the practical equivalent of money damages, even if it is characterized as equitable. See Edelman v. Jordan, 415 U.S. 651, 668, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).
Although the Supreme Court does not "question the continuing validity of the Ex parte Young doctrine," see Coeur d'Alene Tribe, 521 U.S. at 269, 117 S.Ct. 2028, the decisions in Coeur d'Alene Tribe and Seminole Tribe have narrowed the doctrine. See ANR Pipeline Co. v. Lafaver, 150 F.3d 1230*1230 1178, 1189 (10th Cir.1998) (citing V-1 Oil Co. v. Utah State Dep't of Public Safety, 131 F.3d 1415, 1421 n. 2 (10th Cir.1997)) cert. denied, 525 U.S. 1122, 119 S.Ct. 904, 142 L.Ed.2d 902 (1999). The Tenth Circuit has interpreted Coeur d'Alene Tribe as requiring courts to assess the following factors in determining whether the Ex parte Young doctrine applies: 1) whether the action is against the state officials or the state itself; 2) whether the alleged conduct by the state officials constitutes a violation of federal law; 3) whether the relief sought is permissible prospective relief or analogous to a retroactive award of damages;[2] and 4) whether the suit implicates "special sovereignty interests" and is the "functional equivalent" of a form of legal relief against the state that would otherwise be barred by the Eleventh Amendment. Elephant Butte Irr. Dist. v. Dept. of Interior, 160 F.3d 602, 609 (10th Cir.1998) (citations omitted) cert. denied, 526 U.S. 1019, 119 S.Ct. 1255, 143 L.Ed.2d 352 (1999).
The Court finds that Plaintiffs' § 1983 claims against the state officials are covered by the Ex parte Young doctrine, as explained below. However, Defendants correctly argue that Plaintiffs cannot maintain ADA claims against state officials and therefore the first prong of the Ex parte Young exception — whether the suit is properly against state officials, cannot be met. Title II of the ADA prohibits discrimination in programs of a "public entity" or discrimination "by any such entity." 42 U.S.C. § 12132. The ADA defines "public entity" as any state or local government or department, agency, special purpose district or other instrumentality of a state or local government. 42 U.S.C. § 12131. This definition does not include individuals and therefore most courts have held that Title II claims cannot be maintained against individual defendants. Compare Alsbrook v. City of Maumelle, 184 F.3d 999, 1005 n. 8 (8th Cir.1999) (en banc) (holding individuals not liable under Title II) cert. granted, ___ U.S. ___, 120 S.Ct. 1003, 145 L.Ed.2d 947 (2000), and cert. dismissed, ___ U.S. ___, 120 S.Ct. 1265, ___ L.Ed.2d ___ (2000); Yeskey v. Pennsylvania Dept. of Corrections, 76 F.Supp.2d 572, 575 (M.D.Pa.1999) (same); Montez v. Romer, 32 F.Supp.2d 1235, 1240 (D.Colo.1999) (same); Randolph v. Rodgers, 980 F.Supp. 1051, 1060 (E.D.Mo.1997) (same), vacated, rev'd, and remanded on other grounds, 170 F.3d 850 (8th Cir.1999); with Niece v. Fitzner, 922 F.Supp. 1208, 1218-19 (E.D.Mich.1996) (holding Title II claim can be maintained against individual defendants); Doe v. Marshall, 882 F.Supp. 1504, 1507 (same). Accordingly, Plaintiffs' ADA claims against Defendants Valdez and Governor Johnson will be dismissed.
The Court now returns to the applicability of Ex Parte Young to Plaintiffs' § 1983 claims against the individual defendants. First, the § 1983 claims are properly against state officials Valdez and Governor Johnson who exert important control over the waiver services at issue. Defendants point to the rule that a federal court cannot, under Ex parte Young, interfere with state officials' discretionary acts. See Elephant Butte, 160 F.3d at 611. However, as the Tenth Circuit has held, this rule does not bar federal courts from reviewing discretionary acts that violate federal law, as Defendants in this case are accused of having done. Id. (citing Ex parte Young, 209 U.S. at 158-59, 28 S.Ct. 441).
Second, the Court finds that Plaintiffs have met their burden for Eleventh Amendment purposes, of stating a non-frivolous substantial claim for relief 1231*1231 from a violation of federal law. See Elephant Butte, 160 F.3d at 610 (citing Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 690 n. 10, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949); Tindal v. Wesley, 167 U.S. 204, 216, 17 S.Ct. 770, 42 L.Ed. 137 (1897)). Defendants argue that Plaintiffs have not met this burden because there is neither a constitutional right nor a statutory right to participate in waiver programs. The Court finds this argument lacking in merit.

Plaintiffs do not assert that they have an absolute right to waiver programs, but that they have a right to have their applications for public benefits processed with reasonable promptness. Accordingly, Plaintiffs have stated a non-frivolous, substantial claim for relief.
Under the third inquiry, the Court asks whether the relief sought is permissible prospective relief or analogous to a retroactive award of damages. Plaintiffs seek prospective injunctive relief requiring the state officials to comply with what they believe is required by federal law — the reasonably prompt provision of waiver services. Defendants argue that this action is essentially one for monetary damages, impermissibly requiring the state to spend additional money for waiver services. However, injunctive relief that could have "a substantial ancillary effect on a state treasury," ANR Pipeline, 150 F.3d at 1189, is allowed under Ex parte Young. Edelman, 415 U.S. at 668, 94 S.Ct. 1347. The key determination is whether the requested relief seeks to remedy a past wrong or to enjoin future wrongdoing. Coeur d'Alene Tribe, 42 F.3d at 1252 ("An injunction that will in practical effect require payment of funds out of the state treasury is nonetheless permissible if it requires only that officials conform their future actions to federal law") (citations omitted). In this case, Plaintiffs clearly seek to remedy future wrongs — enjoining state officials from impermissibly delaying the provision of waiver services.
Last, the Court considers whether this case implicates a "special sovereignty interest" such that, pursuant to Coeur d'Alene Tribe, it cannot be maintained against state officials. The Tenth Circuit has applied this new special sovereignty interest test in several cases. In ANR Pipeline, the court held that the Eleventh Amendment barred the federal court from granting prospective injunctive relief regarding the manner in which a state tax was calculated. 150 F.3d at 1191. The court observed, "[w]e do not doubt ... that a state's interests in the integrity of its property tax system lie at the core of the state's sovereignty. Indeed, while it is possible to imagine a state government continuing to maintain its sovereignty despite the lack of any ownership of land, it is impossible to imagine that a state government could continue to exist without the power to tax." Id. at 1193 (citation omitted).
In Elephant Butte, the court considered the application of Eleventh Amendment immunity in a case by an irrigation district and water improvement district against, inter alia, New Mexico state officials, claiming that the defendants impermissibly kept profits under a recreational land lease to which the districts were entitled under federal land reclamation laws. The Tenth Circuit held that the state's property interests in the lease profits did not implicate special sovereignty interest precluding the application of the Ex parte Young doctrine. Elephant Butte, 160 F.3d at 612-13. Distinguishing New Mexico's interests in the lease profits at issue in Elephant Butte from Idaho's interests in the submerged lands in Coeur d'Alene Tribe, and Kansas's interest in the property tax scheme in ANR Pipeline, the court found that "this case presents the possibility of a readjustment of priorities for the distribution of profits from certain uses of Project lands, not an impermissible affront to New Mexico's political authority." Id. at 613.
1232*1232 In a case similar to the instant case, J.B. ex re. Hart v. Valdez, 186 F.3d 1280 (10th Cir.1999), the Tenth Circuit held that an action by children with mental and developmental disabilities against various state officials seeking improved protections and therapeutic services was not barred by the Eleventh Amendment. The court found that "[a] state's interest in administering a welfare program at least partially funded by the federal government is not such a core sovereign interest as to preclude the application of Ex parte Young." Id. at 1287 (citing cases). Similarly, this Court finds that though states certainly have a special interest in administering their own social services programs, when they accept federal funding for a program they cannot escape suit against state officials for failure to comply with federal law governing that program under Ex parte Young. The state of New Mexico's interests in administering the waiver services at issue do not outweigh the "interest in vindicating the federal rights and answering the federal questions" in this case. Elephant Butte, 160 F.3d at 613.
For the foregoing reasons, the Court finds that Plaintiffs' § 1983 claims are proper under the Ex parte Young doctrine, and that the state official defendants are not entitled to Eleventh Amendment immunity from these claims. However, because individuals cannot be held liable under Title II of the ADA, Plaintiffs' ADA claims against Valdez and Johnson will be dismissed.

II. Motion to Dismiss for Failure to State a Claim
A. Standard of Review
A court may not dismiss a cause of action under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts supporting the complaint's claims that would entitle him or her to relief. H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-50, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989). In considering a Rule 12(b)(6) motion, the court must assume as true all well-pleaded facts, and must draw all reasonable inferences in favor of the plaintiff. Housing Auth. of the Kaw Tribe v. City of Ponca City, 952 F.2d 1183, 1187 (10th Cir.1991). The issue in reviewing the sufficiency of a complaint is not whether the plaintiff will ultimately prevail, but whether the plaintiff is entitled to offer evidence to support his or her claim. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). These deferential rules, however, do not allow the court to assume that a plaintiff "can prove facts that [he or she] has not alleged or that the defendants have violated the ... laws in ways that have not been alleged." Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983). "[G]ranting a motion to dismiss is `a harsh remedy which must be cautiously studied, not only to effectuate the spirit of the liberal rules of pleading but also to protect the interests of justice.'" Cayman Exploration Corp. v. United Gas Pipe Line Co., 873 F.2d 1357, 1359 (10th Cir.1989) (quoting Morgan v. City of Rawlins, 792 F.2d 975, 978 (10th Cir.1986)).
B. Section 1983 Claims
Plaintiffs seek relief pursuant to § 1983 for Defendants' alleged failure to provide waiver services with "reasonable promptness" as required by the Medicaid Act, 42 U.S.C. § 1396a(a)(8), and for violations of Plaintiffs' due process rights. Defendants aver that these claims should be dismissed because Plaintiffs do not have the right to waiver services under either the Medicaid Act or the Due Process Clause.
1) Medicaid Act
Defendants argue that Plaintiffs cannot maintain their § 1983 action for violations 1233*1233 of the Medicaid Act because the Act does not create a federal statutory right to waiver services. Defendants assert that the provision of waiver services is optional and that the "reasonable promptness" provision, 42 U.S.C. § 1396a(a)(8), does not apply to waiver services. Moreover, according to Defendants, there is a limit on the number of persons who can receive waiver services and, therefore, there can be no right to such services.[3] Plaintiffs counter that once Defendants decided to offer waiver services, they had to comply with the Medicaid Act, including the "reasonable promptness" requirement in the provision of those services. Further, the Plaintiffs aver they do have a federal right to receive waiver services with "reasonable promptness" which is enforceable under § 1983.
Section 1983 imposes liability for "`the deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v. Virginia Hospital Ass'n, 496 U.S. 498, 508, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990). The Supreme Court has held that this provision provides a remedy for some rights granted by federal statutes. Maine v. Thiboutot, 448 U.S. 1, 4-8, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980). Section 1983 does not provide a remedy for the violation of any federal law, but only for deprivations of federal rights. See Wilder, 496 U.S. at 509, 110 S.Ct. 2510 ("We must therefore determine whether the Boren Amendment creates a `federal right' that is enforceable under § 1983"); Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 106, 110 S.Ct. 444, 107 L.Ed.2d 420 (1989). In Blessing v. Freestone, 520 U.S. 329, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997), the Supreme Court articulated the test for determining whether a statute created a federal right as follows:

First, Congress must have intended that the provision in question benefit the plaintiff. Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so "vague and amorphous" that its enforcement would strain judicial competence. Third, the statute must unambiguously impose a binding obligation on the States. In other words, the provision giving rise to the asserted right must be couched in mandatory rather than precatory terms.
Id. at 340-41, 117 S.Ct. 1353 (citations omitted). If these three requirements are met, there is a rebuttable presumption "that the right is enforceable under § 1983." Id. at 341, 117 S.Ct. 1353. This presumption of an enforceable right is rebutted by a finding that Congress prohibited a § 1983 remedy under the statute, either expressly or implicitly. Id.
At issue in this case is whether the Medicaid Act's "reasonable promptness" requirement applies to waiver services, and if so, whether it creates a federal right enforceable under § 1983. The first inquiry is whether Congress intended that the relevant provisions benefit Plaintiffs. Blessing, 520 U.S. at 340, 117 S.Ct. 1353. Pursuant to 42 U.S.C. § 1396n(c), states are permitted to apply for a waiver to use their federal Medicaid money to pay for home or community-based services, i.e. waiver services. The statute refers to these services as "medical assistance." Another provision of the Medicaid Act provides that "[a] State plan for medical assistance must ... provide that all individuals wishing to make application for medical assistance under the plan shall have the opportunity to do so, and that such assistance shall be furnished with reasonable 1234*1234 promptness to all eligible individuals." 42 U.S.C. § 1396a(a)(8). Given that the latter provision requires that all medical assistance be provided with "reasonable promptness" and the waiver provision refers to waiver services as "medical assistance" the Court concludes that Congress intended the "reasonable promptness" requirement to apply to waiver services. Accord Doe v. Chiles, 136 F.3d 709, 715 (11th Cir.1998); Sobky v. Smoley, 855 F.Supp. 1123, 1146 (E.D.Cal.1994). As reasoned by the court in McMillan v. McCrimon, 807 F.Supp. 475, 482 (C.D.Ill. 1992), this determination is supported by the fact that the waiver provision expressly allows the Secretary to waive certain Medicaid Act requirements, 42 U.S.C. § 1396n(c)(3), but does not include the "reasonable promptness" provision in this list of exemptions.
Defendants argue that the Medicaid Act contemplates that waiver services will be limited to a certain number of individuals, relying on the fact that the State applies for the services for a set number of persons and on several provisions in the Act. The most persuasive of these provisions states that, "[t]he Secretary shall not limit to fewer than 200 the number of individuals in the State who may receive home and community-based services under a waiver under this subsection." 42 U.S.C. § 1396n(c)(10). However, that the Act envisions a floor for waiver services — requiring that a state waiver program not be limited to a number less than 200, and that the State applies for a waiver for a certain number of individuals does not prevent the State from applying for a waiver to serve enough persons such that it can provide waiver services to all eligible applicants with "reasonable promptness." Therefore, the Court rejects Defendants assertion that the existence of a numerical floor defeats Plaintiffs' claim that they should receive waiver services with reasonable promptness.
The second finding needed for an enforceable federal right is that "the right assertedly protected by the statute is not so `vague and amorphous' that its enforcement would strain judicial competence." Blessing, 520 U.S. at 340-41, 117 S.Ct. 1353. The Supreme Court has on several occasions assessed whether a particular reasonableness requirement in a federal-state program such as Medicaid creates a binding obligation for which § 1983 provides a remedy. In Wilder, 496 U.S. 498, 110 S.Ct. 2510, the Court considered a claim by plaintiff health care providers that the state had failed to comply with the Boren Amendment to the Medicaid Act which required that health care providers be reimbursed pursuant to rates found by the state to be "reasonable and adequate" to compensate "efficiently and economically operated facilities." The Court held that health care providers were clearly the intended beneficiaries of the Boren Amendment. Id. at 510, 110 S.Ct. 2510. Moreover, the Court found that the Amendment created a federal right enforceable under § 1983 because its terms were framed in "mandatory rather than precatory terms." Id. at 512, 110 S.Ct. 2510. The Court held that the terms "reasonable and adequate" were not too vague or amorphous to be enforced by the courts. Id. at 519, 110 S.Ct. 2510. In making this determination the Court noted that the statute and regulations provided guidance to states

regarding what factors to consider when adopting reimbursement rates. Id. The Court stated that though states had discretion in deciding how to calculate these rates, courts could still enforce the requirement of "reasonable" rates.
While there may be a range of reasonable rates, there are certainly some rates outside that range that no State could ever find to be reasonable and adequate under the Act. Although some knowledge of the hospital industry might be required to evaluate a state's findings with respect to the reasonableness 1235*1235 of its rates, such an inquiry is well within the competence of the Judiciary.
Id. at 519-20, 110 S.Ct. 2510.
Two years later, in Suter v. Artist M., 503 U.S. 347, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992), the Court reviewed a § 1983 claim for violations of the Federal Adoption Assistance and Child Welfare Act ("Adoption Act"). Like the Medicaid Act, the Adoption Act creates a federal-state program under which the federal government reimburses participating states for some of their foster care adoption costs if the states submit a plan which complies with the statutory requirements. The Plaintiffs in Suter claimed that the state had violated the statutory provision requiring that state plans provide for "reasonable efforts" to prevent children from being removed from their homes and to reunify families after removal. The Court held that the plaintiffs could not enforce this provision under § 1983 because the Adoption Act required only that the state have a plan which complied with the statutory requirements, rather than a substantive mandate that the states comply with their plans. Id. at 358, 112 S.Ct. 1360. Moreover, the Court found that the statute did not define the term "reasonable efforts" as the statute and regulations in Wilder had. Id. at 359-60, 112 S.Ct. 1360.[4]
The Court finds that the Medicaid Act's "reasonable promptness" requirement is judicially enforceable. Though, as noted above, the Supreme Court has found some reasonableness requirements enforceable and some not, the Court finds that this reasonable promptness provision is more akin to the reasonable reimbursement rates found enforceable in Wilder than the reasonable efforts to ensure family unification found unenforceable in Suter. As in Wilder, the relevant Medicaid statutes and regulations in this case provide guidance regarding what constitutes "reasonable promptness." One regulation provides that "[t]he agency must establish time standards for determining eligibility which may not exceed — (1) Ninety days for applicants who apply for Medicaid on the basis of disability; and (2) Forty-five days for all other applicants." 42 C.F.R. § 435.911(a). Another provision requires state agencies to "furnish Medicaid promptly without any delay caused by the agency's administrative procedures." 42 C.F.R. § 435.930(a). Therefore, as in Wilder, but unlike in Suter, there are regulations in this case which give courts some guidance about what is meant by "reasonable promptness." Also persuasive is the Supreme Court's statement in Wilder that "[w]hile there may be a range of reasonable rates, there are certainly some rates outside that range that no State could ever find to be reasonable." Wilder, 496 U.S. at 519-20, 110 S.Ct. 2510. Similarly, though it may be difficult to determine exactly what is meant by "reasonable promptness" in the provision of Medicaid services, the facts alleged in this case — remaining on the waiting list for two to seven years — are egregious enough that the reasonableness requirement does not strain judicial competence. Accord Doe, 136 F.3d at 717 ("[w]e agree with the appellees' assertion that in this context, it is axiomatic that delays of several years ... are far outside the realm of reasonableness") (internal quotation marks omitted). Whether being on the waiting list for services for several years complies with the reasonable promptness requirement is 1236*1236 a determination more readily made than that which the Supreme Court found unenforceable in Suter — whether a state had made "reasonable efforts" to keep families unified. As explained by another court, "[w]hat constitutes `reasonable' promptness in medical assistance is inherently more circumscribed and judicially ascertainable than the concept of `reasonable efforts' in the placement of foster children." Sobky, 855 F.Supp. at 1147. Accordingly, the Court finds that Plaintiffs' right to receive medical assistance, including waiver services, with "reasonable promptness" is not so vague and amorphous that it cannot be enforced by the courts. See Doe, 136 F.3d at 718; Sobky, 855 F.Supp. at 1147; see also Wellington v. District of Columbia, 851 F.Supp. 1, 5-6 (D.D.C.1994) (holding that statute requiring state Medicaid plans to furnish medical assistance "with reasonable promptness to all eligible individuals" creates enforceable private right).

The third inquiry is whether the "reasonable promptness" provision unambiguously imposes a binding obligation on the states. Blessing, 520 U.S. at 341, 117 S.Ct. 1353. In making this determination, courts assess whether the provision is stated in mandatory or precatory terms. Id. The provision at issue in this case is stated in mandatory terms. It states that medical assistance "shall be furnished with reasonable promptness to all eligible individuals." 42 U.S.C. § 1396a(a)(8). Defendants argue that the State is not obliged to provide waiver services with reasonable promptness because it is an optional program. The Eleventh Circuit's analysis on this matter in Doe is persuasive. There, the court held that plaintiffs could assert a right under § 1983 to the reasonably prompt provision of intermediate care facilities for the developmentally disabled ("ICF/DD"). Though this was an optional program, the Court held that "when a state elects to provide an optional service, that service becomes part of the state Medicaid plan and is subject to the requirements of federal law." Doe, 136 F.3d at 714 (quoting Tallahassee Memorial Regional Medical Center v. Cook, 109 F.3d 693, 698 (11th Cir.1997)); see also Weaver v. Reagen, 886 F.2d 194, 197 (8th Cir. 1989). Similarly, in this case, now that the State of New Mexico has opted to provide waiver services it must comply with the requirements of the Medicaid Act, including the reasonable promptness requirement.
Having assessed each of the three requirements for a federal right, the Court finds that Plaintiffs can maintain their § 1983 claims for Defendants' failure to provide waiver services with reasonable promptness as required by the Medicaid Act.
2) Due Process
Plaintiffs complain that Defendants Valdez and Johnson have violated their due process rights by Defendants' "arbitrary and unreasonable polices, practices and funding decisions, their failure to request and allocate sufficient funding for Medicaid waiver service programs" and their failure to staff DSD and DOH adequately to administer the Medicaid waiver program which have resulted in Plaintiffs' inability to receive waiver services. Amended Complaint, at ¶¶ 37, 39-41. Defendants argue that there is no constitutional right to waiver services that supports Plaintiffs' § 1983 due process claim and therefore it should be dismissed under Federal Rule of Civil Procedure 12(b)(6). Defendants' motion asserts that Plaintiffs have no substantive right to waiver services because the Constitution does not confer affirmative rights to governmental services, except to persons who are involuntarily committed. Plaintiffs respond that they are not asserting substantive due process claims, but rather procedural due process claims. They aver now that Defendants 1237*1237 have adopted Medicaid waiver services, applicants for waiver services are protected against arbitrary action regarding their access to those benefits. Defendants counter that procedural due process protections only apply to recognized property or liberty interests and Plaintiffs have no property interest in services for which they have applied. The Court will not grant Defendants' motion to dismiss Plaintiffs' § 1983 claims for due process violations on this basis.[5]
The Due Process Clause of the Fourteenth Amendment provides, "nor shall any State deprive any person of life, liberty, or property, without due process of law." In order to state a claim for a violation of due process, the claimant must have a protected property or liberty interest. Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Defendants argue that Plaintiffs have no protected property interests because they are merely applicants for government services. Though neither party cited any case law regarding whether an applicant for public services has a property interest protected by the Due Process Clause, the weight of authority holds that applicants do have a constitutionally protected interest in government benefits for which they have applied. A majority of the Supreme Court has never squarely addressed this issue. See Lyng v. Payne, 476 U.S. 926, 942, 106 S.Ct. 2333, 90 L.Ed.2d 921 (1986) (noting that the Court has "never held that applicants for benefits, as distinct from those already receiving them, have a legitimate claim of entitlement protected by the Due Process Clause"); Walters v. National Ass'n of Radiation Survivors, 473 U.S. 305, 320 n. 8, 105 S.Ct. 3180, 87 L.Ed.2d 220 (1985). However, Justice O'Connor, dissenting from a denial of certiorari stated, "[o]ne would think that where state law creates an entitlement to general assistance based on certain substantive conditions, there similarly results a property interest that warrants at least some procedural safeguards." Gregory v. Town of Pittsfield, 470 U.S. 1018, 1021, 105 S.Ct. 1380, 84 L.Ed.2d 399 (1985) (O'Connor, J., dissenting from

denial of certiorari). Moreover, several lower courts ruling on the issue have held that applicants do have a property interest in government benefits for which they have applied. See, e.g., Mallette v. Arlington County Employees' Retirement System II, 91 F.3d 630, 639-40 (4th Cir.1996) ("We join our sister court in rejecting the mechanical and simplistic applicant/recipient distinction"); National Ass'n of Radiation Survivors v. Derwinski, 994 F.2d 583, 588 (9th Cir.1992); Haitian Refugee Ctr., Inc. v. Nelson, 872 F.2d 1555, 1562 (11th Cir.1989); Daniels v. Woodbury County, 742 F.2d 1128, 1132 (8th Cir.1984); Holbrook v. Pitt, 643 F.2d 1261, 1278 n. 35 (7th Cir.1981); Kelly v. Railroad Retirement Bd., 625 F.2d 486, 490 (3d Cir.1980); Griffeth v. Detrich, 603 F.2d 118, 120-22 (9th Cir.1979). Accordingly, the Court will not grant Defendants' motion to dismiss Plaintiffs' due process claims.
C. ADA Claims
Plaintiffs complain that Defendants' failure to provide them with waiver services violates a regulation of the ADA, the "integration mandate," which states, "[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. § 35.130(d). Defendants move to dismiss Plaintiffs' ADA claims for failure 1238*1238 to state a claim, arguing that the failure to provide home and community-based services is not discrimination "because of" Plaintiffs' disability and is therefore not covered by the ADA. Defendants assert that "integration" in the ADA regulation refers to situations where persons with disabilities sought admission to programs available to non-disabled persons. According to Defendants, the ADA prohibits treating persons with disabilities differently from able-bodied persons, but does not require a particular kind of care as Plaintiffs claim. These same arguments were recently rejected by the Supreme Court in Olmstead v. L.C., 527 U.S. 581, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999).[6] In Olmstead, two mentally retarded women who were institutionalized brought suit against various state officials for failing to place them in community-based programs which their treatment professionals determined would provide appropriate care. As in this case, the State in Olmstead argued that the plaintiffs had not suffered from disability discrimination because they were not denied community-based services "by reason of" their disabilities. Id. at 2186. Disagreeing, the Court held that unnecessary institutionalization and isolation of persons with disabilities is a form of discrimination based on disability under the ADA.[7] Id. at 2185. After reviewing the legislative history of the ADA, the Court noted that its holding was based on two premises.
First, institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.... Second, confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.
Id. at 2187 (citations omitted). This Court wholeheartedly agrees that unjustified isolation of persons with disabilities is a form of disability discrimination prohibited by the ADA.
Defendants also argue that Plaintiffs' proposed interpretation of the ADA as requiring that they be placed in the least-restrictive setting possible would impermissibly require the State to expend funds, thereby violating established principles of federalism. A plurality of the Justices in Olmstead explored the limits of the "integration mandate," in particular the reasonable modifications regulation which provides,
[a] public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.
28 C.F.R. § 35.130(b)(7). The plurality found that the fundamental alteration portion of this regulation requires that states be given some flexibility in complying with the integration mandate and that courts consider the costs involved in a particular remedy. "If for example, the State were to demonstrate that it had a comprehensive, 1239*1239 effectively working plan for placing qualified persons with mental

disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the State's endeavors to keep its institutions fully populated, the reasonable-modifications standard would be met." Olmstead, 527 U.S. 581, 119 S.Ct. at 2189, 144 L.Ed.2d 540 (plurality opinion). Under this analysis, states are not required to provide community-based services to all those who request them regardless of the cost. Rather, the courts must conduct a cost analysis in determining the appropriate remedy for a state's failure to comply with the ADA's integration mandate. Given the Supreme Court's holding that unjustified isolation does constitute disability discrimination under the ADA and that the right to integrated placements is a limited one, the Court finds Defendants' argument that the integration mandate impermissibly requires state expenditures premature at best.
For the foregoing reasons, Defendants' motion to dismiss Plaintiffs' ADA claim for failure to state a claim will be denied.
III. Motion to Dismiss Governor Johnson
Defendants move to dismiss this action against Governor Johnson for failure to state a claim on several bases: that Plaintiffs have not alleged specific claims regarding actions or omissions by Governor Johnson; that Plaintiffs' generalized allegations regarding Governor Johnson's role in supervising state agencies' operation of the waiver programs are insufficient to support a § 1983 claim against him; that individuals are not liable under Title II of the ADA; and that the claims against Governor Johnson are barred by the Eleventh Amendment. The Court has already ruled that the ADA claim against Governor Johnson must be dismissed, so it will only consider the arguments regarding Plaintiffs' § 1983 claims. Moreover, the Court addressed the Eleventh Amendment issues above, finding that the Ex Parte Young doctrine applicable to the § 1983 claims.
The crux of Governor Johnson's motion to dismiss the § 1983 claims against him is that allegations about his generalized role as chief executive are insufficient to maintain a § 1983 action. Plaintiffs assert that they have stated sufficient claims against Governor Johnson to maintain their claims against him. Plaintiffs' amended complaint alleges that as chief executive officer of New Mexico, Governor Johnson has a general duty to uphold the laws and Constitution of the United States, for supervising Defendants Valdez, DOH and HSD, and for ensuring that they comply with federal law. ¶ 19. Plaintiffs also allege that the Governor is responsible for proposing budgets and has repeatedly refused to approve department budgets with meaningful increases. ¶ 23. According to the amended complaint, Governor Johnson directed Valdez and his predecessors not to plan for growth in the DOH and HSD budgets, thereby preventing the Secretaries from submitting budgets sufficient to provide waiver services with reasonable promptness. ¶ 21. Though Valdez requested a $5.5 million for the waiver program for fiscal year 2000, Governor Johnson only requested $2 million despite his knowledge that additional funds were needed to provide waiver services with reasonable promptness. ¶ 25. In 1998, Governor Johnson vetoed a budget line item of approximately $1 million for additional DD waiver services. ¶ 27. Moreover, Plaintiffs allege that Governor Johnson at all material times has known that several hundred persons with disabilities have been on the waiting list for waiver services. ¶ 26. Plaintiffs allege that Governor Johnson caused to be removed persons with developmental disabilities receiving medically necessary services in state programs, moving those persons to waiver programs. The resultant savings were 1240*1240 used for the general fund and caused delays in the provision of waiver services. ¶ 22. Plaintiffs also allege that Valdez and Johnson have failed to fill positions of employment in DOH and HSD and to create and fund new positions needed to administer the waiver program in accordance with federal law. ¶ 51.
The Court finds that these allegations, which it must assume are true for this 12(b)(6) motion, Housing Auth. of the Kaw Tribe, 952 F.2d at 1187, are sufficient to maintain Plaintiffs' § 1983 claims against Governor Johnson for failing to provide waiver services. Plaintiffs cannot maintain their claims against Governor Johnson if his powers over waiver services are limited to general budget and policy recommendations. See L.A. Branch NAACP v. L.A. Unified School Dist., 714 F.2d 946, 953 (9th Cir.1983) ("the Governor's general duty to enforce California law ... does not establish the requisite connection between him and the unconstitutional acts alleged"). However, Plaintiffs in this case have alleged that

Governor Johnson has taken specific acts which have led to them being denied waiver services with reasonable promptness. Plaintiffs allege that Governor Johnson vetoed funds for the DD waiver program, directed Valdez not to submit department budgets for increased funds, and submitted a $2 million budget instead of the $5.5 million requested for the waiver programs. This goes beyond the general budget recommendations found insufficient in L.A. Branch NAACP. Governor Johnson correctly asserts that respondeat superior may not serve as the basis for imposing § 1983 liability. Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). To establish § 1983 liability for a supervisory defendant, plaintiffs must show a link between the individual's conduct and the constitutional liability. Snell v. Tunnell, 920 F.2d 673, 700 (10th Cir.1990). An individual acting in a non-supervisory role can only be held liable under § 1983 if there is a causal connection between the individual's conduct and the deprivation of a federal right. See id; Wulf v. City of Wichita, 883 F.2d 842, 864 (10th Cir.1989) (citing cases). This requirement can be satisfied by a showing that "the defendant set in motion a series of events that the defendant knew or should have reasonably have known would cause others to deprive the plaintiff of her constitutional rights." Conner v. Reinhard, 847 F.2d 384, 397 (7th Cir.1988). The Court finds that the requisite causal connection between specific acts performed by Governor Johnson and the deprivation of Plaintiffs' right to waiver services with reasonable promptness has been met in this case. Governor Johnson, knowing that several hundred persons were on the waiting list for waiver programs, nonetheless vetoed funds for these programs and submitted a budget for less than half of the funds requested for waiver services. Accordingly, his motion to dismiss the § 1983 claims will be denied.
CONCLUSION
IT IS THEREFORE ORDERED that Defendants' Motion to Dismiss Based on Sovereign Immunity [Doc. No. 25] is denied in part and granted in part; Defendants' Motion to Dismiss Pursuant to Rule 12(b)(6) [Doc. No. 20] is denied; and Defendants' Motion to Dismiss Governor Gary Johnson [Doc. No. 12] is granted in part and denied in part. Counts III and IV for violations of the ADA are dismissed with prejudice as to Defendants Valdez and Governor Johnson.
[1] The Court must decide the Eleventh Amendment issue before reaching the merits of Plaintiffs' claims under the 12(b)(6) motion because the immunity issue is a challenge to the Court's subject matter jurisdiction. See Martin v. Kansas, 190 F.3d 1120, 1126 (10th Cir.1999)(citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)).
[2] These first three inquiries were established by the Court in Florida v. Treasure Salvors, Inc., 458 U.S. 670, 102 S.Ct. 3304, 73 L.Ed.2d 1057 (1982), to assess whether a suit against a state official can be maintained in federal court.
[3] Defendants also reason that because waiver services must cost less than institutional services, 42 U.S.C. § 1396n(c)(2)(D), the State can only provide such services to a limited number of persons. This does not stand to reason. If the State were able to provide home- and community-based services for less than institutional services to all recipients this provision would not stand as a barrier to the former services.
[4] Congress repudiated Suter by amending the Social Security Act to provide that a private right of action to enforce some provision of the Act should not be deemed unenforceable because the Act requires the state to submit a state plan. 42 U.S.C. § 1320a-2. In addition, several circuit courts have held that Suter should not be seen as a departure from the § 1983 caselaw such as Wilder. See, e.g., Wood v. Tompkins, 33 F.3d 600, 606 (6th Cir.1994) (Suter is "entirely consistent with Wilder"); Doe v. District of Columbia, 93 F.3d 861, 867 (D.C.Cir.1996) (discussing how Suter and Wilder can be reconciled).
[5] Because Defendants do not argue that the Medicaid provisions at issue do not create an entitlement protected by the Due Process Clause, but rely merely on the argument that Plaintiffs have no constitutionally protected interest in the waiver services as applicants, the Court will not address the former issue.
[6] The Supreme Court decided Olmstead v. L.C. after the parties filed their briefs in this case.
[7] While holding that unjustified institutionalization of persons with disabilities can constitute disability discrimination if those persons are able to receive community-based services, the Supreme Court in Olmstead was careful to note that the ADA and its regulations do not permit placing persons in community placements if they are not able to handle this less structured environment, nor is there any requirement that persons who do not wish to receive community-based services be forced into such programs. Olmstead, 527 U.S. 581, 119 S.Ct. at 218788, 144 L.Ed.2d 540.

 
 275 F.Supp.2d 1319 (2003)
Ben LEWIS, Aaron Norrid, Billy Jo Quisenberry and Fred Romero, by and through their legal guardian and next friend the ARC of New Mexico,
Breanne Liddell, by and through her parent and legal guardian Judy Liddell, Matthew Allen, by and through his parents and legal guardians Jim and Angela Allen, Fay Morgan, Deborah Eminger and Protection and
Advocacy System, Inc., Plaintiffs, v.
NEW MEXICO DEPARTMENT OF HEALTH, New Mexico Department of Human Services, J. Alex Valdez, Secretary of the Department of Health
and Secretary Designee of the Department of Human Services in his official capacities, and Governor Gary Johnson in his official capacity,
Defendants.
No. CIV 99-0021 MV/JHG.
United States District Court, D. New Mexico.
August 5, 2003.
1320*1320 1321*1321 1322*1322 Duff Westbrook, Michael C. Parks, V. Colleen Miller, for Plaintiffs.
Charles A. Pharris, Kurt Wihl, Margaret Davidson, Gary J. Van Luchene, for Defendants.
MEMORANDUM OPINION AND ORDER
VASQUEZ, District Judge.
THIS MATTER is before the Court on Plaintiffs' Motion for Summary Judgment on Counts I and II of the Amended Complaint [Doc. No. 133], filed July 10, 2002, and fully briefed on August 9, 2002; Defendant Governor Gary Johnson's Motion for Summary Judgment on Grounds of Legislative Immunity [Doc. No. 136], filed July 15, 2002, and fully briefed on August 9, 2002; Defendants' Motion to Strike all Claims Seeking Class Action-Like Relief [Doc. No. 134], filed July 15, 2002, and fully briefed on August 9, 2002; and Plaintiffs' Motion to Strike Affidavits Supporting Defendants' Opposition to Plaintiffs' Motion for Summary Judgment [Doc. No. 159], filed August 20, 2002, and fully briefed on September 20, 2002. Having considered the motions, the memoranda in support and in opposition, and the relevant law and being otherwise fully informed, the Court finds that (1) Plaintiffs' Motion for Summary Judgment on Counts I and II of the Amended Complaint is well taken and will be granted; (2) Defendant Governor Gary Johnson's Motion for Summary Judgment on Grounds of Legislative Immunity is well taken and will be granted; (3) Defendants' Motion to Strike all Claims Seeking Class Action-Like Relief is not well taken and will be denied; and (4) Plaintiffs' Motion to Strike Affidavits Supporting Defendants' Opposition to Plaintiffs' Motion for Summary Judgment is not well taken and will be denied.
I. Background[1]

Plaintiffs filed this declaratory action against the New Mexico Department of Health (DOH) and the New Mexico Department of Human Services (HSD), alleging violations under both the Medicaid Act, 42 U.S.C. §§ 1396 et seq., and the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 1201 et seq., as well as due process violations actionable under 42 U.S.C. 1323*1323 § 1983.[2] Initially, the Plaintiffs in this case were Protection and Advocacy (P & A), an advocacy group, and individuals who were eligible to participate in Medicaid programs because of their physical or developmental disabilities or because of their advanced age. Plaintiffs alleged they were entitled to less restrictive home and community-based services with "reasonable promptness" instead of the institutional care they were receiving. Instead, they had been on waiting lists to receive these waiver services for as many as seven years.
On June 14, 1999, Defendants filed a Motion to Dismiss Based on Sovereign Immunity, a Motion to Dismiss Pursuant to Rule 12(b)(6), and a Motion to Dismiss Governor Gary Johnson. Defendants claimed sovereign immunity under the Eleventh Amendment and argued that Plaintiffs failed to state a claim upon which relief could be granted. Defendant Governor Johnson moved to dismiss for failure to state a claim against him. By Amended Memorandum Opinion and Order, filed April 24, 2000, the Court denied in part and granted in part Defendants' motion to dismiss based on sovereign immunity. The Court found the state agency defendants, DOH and HSD, did not have a state sovereign immunity defense from the ADA claims. As to the state officials, Defendants Valdez and Governor Johnson, the Court found Plaintiffs could not maintain ADA claims against them. However, the Court found Plaintiffs' § 1983 claims against the state official defendants were proper under the Ex parte Young doctrine. Finally, the Court found Plaintiffs' allegations, which the Court assumed to be true under a 12(b)(6) motion, were sufficient to maintain their § 1983 claims against Governor Johnson for failing to provide waiver services.
Because some of the individually named Plaintiffs in the case had received the waiver services and others had passed away, leaving only P & A as a party in the case, on March 2, 2000, Defendants filed their motion for summary judgment on the claims of the individual plaintiffs on the grounds of mootness, and on March 13, 2000, Defendants filed their motion to dismiss P & A for lack of standing. On March 14, 2000, Plaintiffs filed a Motion for Leave of Court to File Second Amended Complaint.
On May 2, 2000, Defendants appealed the Court's denial of their motions to dismiss based on Eleventh Amendment immunity and Federal Rule of Civil Procedure 12(b)(6). On August 16, 2001, the Court of Appeals for the Tenth Circuit affirmed the Court's denial of Defendants' motion asserting Eleventh Amendment immunity but declined to exercise pendant appellate jurisdiction over the Court's denial of Defendants' 12(b)(6) motion. Thereafter, the parties filed the motions that are the subject of this Memorandum Opinion and Order.
By Memorandum Opinion and Order, filed November 5, 2002, the Court denied Defendants' motion to dismiss P & A for lack of standing. The Court granted Defendants' summary judgment motion as to the claims of Ben Lewis, Aaron Norrid, Fred Romero and Deborah Eminger. The Court also granted Plaintiffs' motion to file a second amended complaint, except for the addition of new plaintiffs.
On January 3, 2003, Plaintiffs filed a Notice, advising the Court they did not 1324*1324 intend to file the Second Amended Complaint that was the subject of their March 14, 2000 Motion to Amend. However, Plaintiffs reserved the right to appeal the Court's ruling not to allow the addition of new plaintiffs. On January 14, 2003, the parties filed a Joint Motion for Dismissal of Claims of Plaintiffs Breanne Liddell and Matthew Allen, and for Entry of Partial Judgment with Respect to Their Claims. On January 29, 2003, the Court entered its Order, granting the parties' Joint Motion and dismissing the claims of Plaintiffs Breanne Liddell and Matthew Allen. On the same day, the Court entered partial judgment in favor of Defendants on the claims of Plaintiffs Liddell and Allen.
II. Standard of Review
This Court will grant summary judgment when there is no genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The movant carries the burden of

establishing there are no genuine issues of material fact, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), but may discharge its burden by showing there is an absence of evidence to support the non-movant's case, Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movant meets its burden, the burden shifts to the non-movant to demonstrate a genuine issue for trial on a material matter. Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). In making its summary judgment determination, the court looks at the pleadings and documentary evidence in the light most favorable to the non-movant, Deepwater Invs., v. Jackson Hole Ski Corp. 938 F.2d 1105, 1110 (10th Cir.1991), and the movant must show beyond a reasonable doubt it is entitled to summary judgment, Hicks v. City of Watonga, Okla., 942 F.2d 737, 743 (10th Cir. 1991). However, once the burden shifts to the non-movant, that party may not rest on its pleadings but must set forth specific facts showing there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof. Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548. However, "the mere existence of some factual dispute between the parties will not defeat an otherwise properly supported motion." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Factual disputes that are irrelevant or unnecessary will not be counted." Id. If the nonmovant cannot make such a showing, after adequate time for discovery, summary judgment is mandated. Id. at 322, 106 S.Ct. 2505. The Court will consider the parties' motions for summary judgment in light of these standards.
III. Discussion
A. Motion for Summary Judgment on Grounds of Legislative Immunity
The well settled doctrine of absolute legislative immunity bars actions against legislators on the basis of their roles in enacting or signing legislation. Supreme Court of Virginia v. Consumers Union of United States, Inc., 446 U.S. 719, 731-34, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980). "The Supreme Court, however, `has been careful not to extend the scope of [legislative immunity] protection further than its purposes require,' and the government official seeking immunity bears the burden of showing that an exemption from personal liability is justified." Kamplain v. Curry County Board of Commissioners, 159 F.3d 1248, 1251 (10th Cir.1998)(quoting Forrester v. White, 484 U.S. 219, 224, 1325*1325 108 S.Ct. 538, 98 L.Ed.2d 555 (1988)). Legislative immunity applies to legislators engaged "in the sphere of legitimate legislative activity," Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), and protects legislators "not only from the consequences of litigation's results but also from the burden of defending themselves." Dombrowski v. Eastland, 387 U.S. 82, 85, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967). Legislative immunity applies to § 1983 actions seeking damages and declaratory or injunctive relief. Consumers Union, 446 U.S. at 732, 100 S.Ct. 1967.
Moreover, officials outside the legislative branch are entitled to legislative immunity when they perform legislative functions. Id. at 731-734, 100 S.Ct. 1967. To determine whether a particular task is legislative, executive or judicial for purposes of extending immunity, the Court looks to the function performed by the defendant and not his title. Forrester, 484 U.S. at 227, 108 S.Ct. 538 ("[I]mmunity is justified and defined by the functions it protects and serves not by the person to whom it attaches."). Additionally, "whether an act is legislative turns on the nature of the act itself, rather than on the motive or intent of the official performing it." Bogan v. Scott-Harris, 523 U.S. 44, 54, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998).
Therefore, in order to determine whether Defendant Governor Johnson is entitled to legislative immunity, the Court looks to the function he was performing when the actions at issue took place and examines the nature of those actions. See, Kamplain, 159 F.3d at 1251-52. If the function in question is legislative, then he is entitled to absolute legislative immunity. "[A]t its core, the legislative function involves determining, formulating, and making policy." Id. at 1251.

Plaintiffs contend "Johnson's activities at issue are neither `legislative' nor `legitimate' and therefore not entitled to legislative immunity." Pls.' Resp. in Opp'n to Def. Gary Johnson's Mot. for Summ. J. at 1. Plaintiffs do not dispute, however, that at all times relevant to the allegations made in this action against him, Defendant Governor Johnson was the governor of the State of New Mexico and was responsible for compiling and submitting a proposed budget to the New Mexico Legislature. There is also no dispute that the New Mexico Legislature is vested with the ultimate power to establish state policy by appropriating funds. Plaintiffs also acknowledge "that the actual process of departmental funding is collaborative and includes input from each department, the governor and the legislature." Id. at 2.
Plaintiffs contend Defendant Governor Johnson had supervisory authority over the DOH and the HSD and was responsible for assuring that these departments complied with federal law. However, Plaintiffs acknowledge that Defendant Governor Johnson was not involved in the day-to-day operations of these departments, particularly the administration of the Developmental Disabilities Home and CommunityBased Services Waiver (DD Waiver) and the Disabled and Elderly Home and Community-Based Services Waiver (D & E Waiver) (together "waiver programs" or "waiver services"). Sections 9-7-6A and 9-8-6A of Chapter 9 of the New Mexico Statutes which governs the Executive Department state: "The secretary is responsible to the governor for the operation of the department. It is his duty to manage all operations of the department and to administer and enforce 1326*1326 the laws with which he or the department is charged." N.M.Stat.Ann §§ 9-7-6A & 9-8-6A (Michie 2001 Repl. Pamp.). Section 9-7-6A applies to the DOH and § 9-8-6A applies to the HSD. Plaintiffs contend that "nothing in these sections indicates that the functions are limited to legislative matters." Id. at 10. Plaintiffs argue that because Defendant Governor Johnson is ultimately responsible for the operation of the DOH and the HSD he is liable for any violation of federal law by these departments.
Additionally, Plaintiffs argue that "Johnson's actions with regard to the Waiver programs do not come within the purview of `legislative function.'" Id. at 11. For example, Plaintiffs claim that "following the closure of Los Lunas, Johnson placed the previously institutionalized individuals from that facility into the DD Waiver program." Id. at 9. Plaintiffs claim this action significantly increased state expenditures. However, state funding for the waiver programs did not increase and, as a consequence, the number of individuals that could be served through the waiver programs decreased. Plaintiffs also claim Defendant Governor Johnson "advised Valdez and his predecessors to plan for limited growth in the Waiver programs." Id. at 10. Plaintiffs further claim "Governor Johnson issued a policy objective precipitating the revamping of the state personnel system, which necessarily affect (sic) people working in Waiver programs." Id. at 11. Plaintiffs argue these actions "go beyond budgetary actions" and are not legislative in nature.
Finally, Plaintiffs claim Defendant Governor Johnson "has continually requested less money for Waiver services than the legislature appropriated" and vetoed a budget line item calling for one million dollars to provide additional waiver services. Id. at 13. Accordingly, Plaintiffs argue Defendant Governor Johnson's budgetary decisions have "made it impossible for the state to meet its federal obligation to provide waiver services with reasonable promptness." Id. at 12.
Plaintiffs' allegations regarding Defendant Governor Johnson's actions, either directly or indirectly, concern what they perceive to be inadequate funding and support of the waiver programs. Defendant Governor Johnson asserts that his actions of which Plaintiffs complain in this case are indistinguishable from the acts of the mayor in Bogan, acts which the Supreme Court found to be legislative in nature and thus were accorded legislative immunity.
In Bogan, Plaintiff Scott-Harris was the Administrator of the Fall River Department of Health and Human Services (DHHS). During her tenure, she received a complaint that one of her temporary employees had made several racial and ethnic slurs about the employee's colleagues. Scott-Harris prepared termination charges against the employee. The employee was able to forestall termination by using her political connections to press her case with several state and local officials, including Defendant Roderick, the vice president of the Fall River City Council. The city council held a hearing on the charges brought

against the employee. As a result of the hearing, the employee agreed to be suspended without pay for sixty days. Defendant Bogan, the mayor of Fall River, eventually reduced the length of the suspension.
While the charges against the employee were pending, Mayor Bogan had prepared his annual city budget proposal. Anticipating a reduction in revenue, Mayor Bogan proposed freezing municipal employee 1327*1327 salaries and eliminating 135 jobs. Included in his proposal was the elimination of the DHHS, of which Scott-Harris was the sole employee. After the city council adopted the ordinance, Mayor Bogan signed it into law.
Thereafter, Scott-Harris filed a § 1983 action against Fall River, Mayor Bogan, Roderick, and others. Scott-Harris alleged "the elimination of her position was motivated by racial animus and a desire to retaliate against her for exercising her First Amendment rights in filing the complaint against [the employee]." Bogan, 523 U.S. at 47, 118 S.Ct. 966. The district court denied Bogan's and Roderick's motion to dismiss on the basis of legislative immunity. On appeal, the First Circuit affirmed, holding the challenged conduct was administrative, not legislative. See Scott-Harris v. City of Fall River, 134 F.3d 427 (1st Cir.1997), rev'd, 523 U.S. 44, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998).
The Supreme Court reversed, holding "local legislators are . . . absolutely immune from suit under § 1983 for their legislative activities." Bogan, 523 U.S. at 49, 118 S.Ct. 966. The Court made clear the determination of whether an activity is "legislative" must be made without regard to the legislators' subjective intent. Id. at 54, 118 S.Ct. 966. The Court stated the proper inquiry was "whether, stripped of all considerations of intent and motive, [the] actions were legislative." Id. at 55, 118 S.Ct. 966. The Court then found Bogan and Roderick were entitled to legislative immunity:
Most evidently, petitioner Roderick's acts of voting for an ordinance were, in form, quintessentially legislative. Petitioner Bogan's introduction of a budget and signing into law an ordinance also were formally legislative, even though he was an executive official. We have recognized that officials outside the legislative branch are entitled to legislative immunity when they perform legislative functions. Bogan's actions were legislative because they were integral steps in the legislative process.
Id. The Court found "[t]he ordinance reflected a discretionary, policymaking decision implicating the budgetary priorities of the city and the services the city provides to its constituents." Id. at 55-56, 118 S.Ct. 966. The Court also recognized a governor's signing or vetoing of a bill constituted part of the legislative process. Id.
Similarly, the actions taken by Defendant Governor Johnson in this case are legislative in nature. Funding for any state program is a budgetary and policy decision for the state to make. Defendant Governor Johnson's actions in preparing a budget are "an integral part of the legislative process." In his deposition, Defendant Valdez, the DOH Secretary, testified he made the decision to close Los Lunas and shift that facility's budget to the DD Waiver program. However, even if that decision had been made by Defendant Governor Johnson, as a budgetary decision, he is entitled to legislative immunity. See e.g., Burtnick v. McLean, 76 F.3d 611 (4th Cir.1996)(budgetary decisions are generally legislative acts). Defendant Governor Johnson's "request for less money for Waiver services than the legislature appropriated" and his "veto of a budget line item calling for one million dollars to provide additional waiver services" also constitute actions of a legislative nature.
Finally, Defendant Governor Johnson's "policy objective precipitating the revamping of the state personnel system" and his "advice to Valdez and his predecessors to plan for limited growth in the Waiver programs," 1328*1328 also are legislative in nature. In planning and formulating the state budget, Defendant Governor Johnson, like the mayor in Bogan, had the discretion to streamline or "revamp" the state personnel system and to curtail the growth of the waiver programs.
Conclusion

Having examined the actions taken by Defendant Governor Johnson which Plaintiffs argue do not fall within the purview of legislative function, the Court finds all of the actions at issue involved "determining, formulating, and making policy," and therefore were legislative in nature. Thus, Defendant Governor Johnson is entitled to legislative immunity. Accordingly, Defendant Governor Gary Johnson's motion for summary judgment is granted.
B. Plaintiffs' Motion to Strike Affidavits
In addition to their motion for summary judgment, Plaintiffs move the Court to strike all or portions of the affidavits of Ramona Flores-Lopez, Roger Auerbach and Roger Gillespie. Defendants submitted affidavits from these individuals in support of their response in opposition to Plaintiffs' motion for summary judgment. Consequently, the Court will address this motion before ruling on Plaintiffs' motion for summary judgment. Plaintiffs contend that all or portions of these affidavits are not admissible under Federal Rule of Civil Procedure 56(e). Specifically, Plaintiffs claim the affidavits are inadmissible because they contain statements which are either irrelevant, conclusory, based upon information and belief or constitute legal opinions.
When submitted to support or oppose a summary judgment motion, an affidavit must be based on personal knowledge, must set forth facts that would be admissible at time of trial, and must establish the affiant's competence to testify. Fed.R.Civ.P. 56(e). Accordingly, "[u]nder Fed.R.Civ.P. Rule 56(e), only statements `made on personal knowledge' will support a motion for summary judgment; statements of mere belief must be disregarded." Tavery v. United States, 32 F.3d 1423, 1427 n. 4 (10th Cir.1994).
Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Fed.R.Evid. 401. Rule 401 uses a lenient standard for relevance. See e.g., In re A.H. Robins Co., Inc., 575 F.Supp. 718, 723 (D.Kan.1983). Moreover, "an affidavit should be excluded only when its irrelevance is clear." 10B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2738 (3d ed.1998). The Court also notes that the Advisory Committee Notes on Rule 401 state that "[e]vidence which is essentially background in nature can scarcely be said to involve disputed matter, yet it is universally offered and admitted as an aid to understanding." See Fed. R.Evid. 401, Advisory Committee Notes.
1. Affidavit of Ramona Flores-Lopez
Plaintiffs claim paragraph 6 of Ms. Flores-Lopez' affidavit contains statements which "are irrelevant and based upon information and belief and not Ms. Flores-Lopez' personal knowledge." Pls.' Mem. Br. in Supp. of Mot. to Strike at 2. Plaintiffs also move the Court to strike paragraphs 10 and 11 of the FloresLopez affidavit. Plaintiffs contend paragraph 10 sets forth irrelevant information about the 1329*1329 closure of New Mexico's public institutions, and the first four sentences of paragraph 11 concern a Medicaid program not at issue in this case. According to Plaintiffs, this testimony is not relevant to any of the issues in this case. Finally, Plaintiffs contend the final sentence of paragraph 11 is not admissible because it is based on speculation and conjecture.
Paragraph 6 of the Flores-Lopez affidavit states: "The predicted waiting times set forth in the strategic plans also are affected by other factors. For example, on information and belief, individuals often are offered allocations, but they elect to defer their determination of financial and clinical eligibility and entry into services. Thus, for State Fiscal Year 2002, the actual wait for DD Waiver services was 40 months, not 60 months as targeted." Defs.' Opp'n to Pls.' Mot. for Summ. J., Ex. A, Flores-Lopez Aff. ¶ 6.
Paragraph 10 states: "New Mexico closed its public institutions in 1997, with the exception of two small Intermediate Care Facilities for the Mentally Retarded (`ICF/MR's'), which are home to a few individuals

for whom community placement generally is not appropriate." Id., Flores-Lopez Aff. ¶ 10. Paragraph 11 states:
In addition to the DD Waiver Program, DOH has also initiated the Family Support/Self-Directed Services Project, which provided state general funds to 98 individuals and their families in FY 2000. Participants were selected within each Long Term Services Division region from the DD Waiver Program Central Registry based on their date of application. Each participant received $2,600.00 to spend in accordance with a self-directed plan. Community coordinators provided training to participants about the program and assisted with the development of service plans. It is anticipated that many of the FY 2002 participants will be allocated to the DD Waiver in FY 2003, allowing designated funds to be used to serve new individuals from the Central Registry.
Id., Flores-Lopez Aff. ¶ 11.
Defendants contend all of Ms. Flores-Lopez' testimony is relevant because it goes to demonstrate "the environment in which waiver services [are] provided" and "for the purpose of providing necessary background information and context in which to determine Defendants' reasonableness." Defs.' Opp'n to Pls.' Mot. to Strike Aff. at 4-5. Defendants argue it is relevant for the Court to know the number of individuals on the Central Registry that elect to defer the determination of their financial and clinical eligibility for waiver services in favor of remaining on the Central Registry. Id. According to Defendants, it is equally relevant for the Court to be apprised of the State's multiple non-waiver services which provide needed services to individuals on the Central Registry prior to allocation into waiver services. Defendants contend this goes to show the quality of life enjoyed by individuals on the Central Registry prior to receiving waiver services since Plaintiffs have asserted these individuals do not receive assistance in their basic needs, i.e., toileting, eating, and bathing. Defendants also contend the evidence regarding the closure of New Mexico's ICF/MR's demonstrates there are more individuals in need of services and less available providers.
As to paragraph 6 of Ms. Flores-Lopez' affidavit, Defendants contend the challenged testimony is confirmed by Mr. Arturo Rangel's affidavit and is not critical to her testimony. Mr. Rangel is the Chief of 1330*1330 the Program Development Bureau within the Long-Term Services Division and reports directly to Ms. Flores-Lopez. See Defs.' Opp'n to Pls.' Mot. for Summ J., Ex. C, Rangel Aff. ¶ 4. According to Defendants, as Mr. Rangel's supervisor, this information is within Ms. Flores-Lopez' personal knowledge and may not be stricken.
The Court has reviewed the challenged testimony in Ms. Flores-Lopez' affidavit and finds it is relevant, within her personal knowledge and not speculative. The fact it took 40 months instead of 60 months for an individual to receive DD Waiver services in 2002 is certainly relevant to the issues in this case. Equally relevant is the fact New Mexico closed its public institutions in 1997, requiring more home and community-based services. The testimony regarding the State's multiple non-waiver services which provide needed services to individuals on the Central Registry prior to allocation into waiver services is also relevant background information. Accordingly, Ms. Flores-Lopez' testimony will not be stricken.
2. Affidavit of Roger Auerbach
Plaintiffs contend Roger Auerbach's affidavit contains several statements that are either conclusory, irrelevant or constitute legal opinions about which he is not competent to testify. Plaintiffs contend Mr. Auerbach is not qualified to render legal opinions because he has no legal training or experience. Plaintiffs also contend that, under Rule 702 of the Federal Rules of Evidence, Mr. Auerbach's opinion testimony regarding the applicability of the reasonable promptness requirement set forth in 42 U.S.C. § 1396a(a)(8) to the waiver programs at issue in this case is inadmissible because such testimony "inappropriately invades the province of the fact finder and will not assist the trier of fact." Pls.' Reply to

Defs.' Opp'n to Pls.' Mot. to Strike Aff. Supp. Defs.' Opp'n to Pls.' Mot. for Summ. J. at 9. Specifically, Plaintiffs contend the following statements in Mr. Auerbach's affidavit constitute legal opinions and should be stricken: "waivers are not entitlement programs" and "all persons who are eligible for Medicaid State Plan services are not `entitled to waiver services.'" Pls.' Mem. Br. in Supp. of Pls.' Mot. to Strike Aff. Supp. Defs.' Opp'n to Pls.' Mot. for Summ. J. at 3-4. According to Plaintiffs, these opinions go to the issue of whether Plaintiffs are entitled to receive waiver services with reasonable promptness. Id. at 3. Plaintiffs also argue that under Specht v. Jensen, 853 F.2d 805 (10th Cir.1988), experts may not testify on an ultimate issue of law. Therefore, Plaintiffs move the Court to strike paragraphs 16-31 of Mr. Auerbach's affidavit.
Mr. Auerbach is one of Defendants' expert witnesses and has extensive experience in both the administration and evaluation of home and community-based waiver programs. See, Defs.' Mot. for Summ. J., Ex. I, Auerbach Aff. ¶¶ 3-10. Contrary to Plaintiffs' assertion, Mr. Auerbach is an attorney. According to Defendants, Mr. Auerbach's affidavit is relevant to the question of reasonableness. The evidence Mr. Auerbach offers illustrates the State of New Mexico's commitment to the waiver programs. Mr. Auerbach's testimony shows the percentage of New Mexico's budget set aside for home and community-based waiver services is one of the highest in the United States. Mr. Auerbach's testimony also demonstrates the State's commitment to providing waiver services to more individuals.
In response to Defendants' arguments, Plaintiffs counter that Defendants mischaracterize 1331*1331 the issue before the Court as whether the Defendants' actions as a whole are reasonable. Plaintiffs argue the issue before the Court is whether the State has or has not failed to provide waiver services to eligible individuals with reasonable promptness not whether the States' "other actions are reasonable." Pls.' Mem. Br. in Supp. of Pls.' Mot. to Strike Aff. Supp. Defs.' Opp'n to Pls.' Mot. for Summ. J. at 5. Plaintiffs contend Mr. Auerbach's testimony is not relevant to this issue and "will only serve to confuse the issues . . . ." Id. at 8.
The Court has reviewed Mr. Auerbach's affidavit, specifically paragraphs 16 through 31 and finds the testimony is relevant. Mr. Auerbach's testimony is essentially about the customs and practices in working with Centers for Medicare and Medicaid (CMS) and administering waiver programs. Rule 704(a) of the Federal Rules of Evidence allows an expert witness to testify in the form of an opinion or inference even if that opinion or inference embraces an ultimate issue to be determined by the trier of fact. A.E., By and Through Evans v. Independent Sch. Dist. No. 25, 936 F.2d 472, 476 (10th Cir. 1991); see also, Phillips v. Calhoun, 956 F.2d 949, 952 (10th Cir.1992). However, an expert may not state legal conclusions drawn by applying the law to the facts. Id. Nevertheless, an expert may refer to the law in expressing his or her opinion. Id. Thus, "[a]lthough the role of a witness is to produce factual testimony, `a witness may refer to the law in expressing an opinion without that reference rendering the testimony inadmissible.'" Unites States v. Oles, 994 F.2d 1519, 1523 (10th Cir.1993)(quoting Specht, 853 F.2d at 810). Moreover, doubts about the usefulness of expert testimony should generally be resolved in favor of admissibility. Sil-Flo, Inc. v. SFHC, Inc., 917 F.2d 1507, 1517 (10th Cir.1990). Mr. Auerbach's testimony covers the history of longterm care services and the differences between Medicaid state plan services and waiver programs. This testimony will assist the Court in ruling on Plaintiffs' motion for summary judgment, and since this case is being tried by the Court, there is little danger the evidence will confuse the issues. Accordingly, the Court will not strike any of Mr. Auerbach's testimony.
3. Affidavit of Roger Gillespie
Plaintiffs move the Court to strike paragraphs 2 through 8 of Mr. Gillespie's affidavit on the grounds the testimony contained therein is wholly irrelevant to the issues before the Court. Mr. Gillespie is the Deputy Director of the Medical Assistance Division, HSD. Mr. Gillespie is responsible for the oversight of the Benefits Bureau, the Contracts Administration Bureau and the Planning and Program Operation Bureau. The Planning and Program Operations Bureau supervises the Fee for Service Long Term Care Programs and the Waiver programs, including the D & E Waiver.

Paragraphs 2-6 concern the Personal Care Option program. "The Personal Care Option was added as a Medicaid benefit in September 1999 with the goal of enabling elderly and/or disabled clients to live in the comfort of their own homes and achieve the highest possible level of independence. The Personal Care Option allows clients choice and flexibility in how their care is delivered." Defs.' Opp'n to Pls.' Mot. for Summ. J., Ex. J, Gillespie Aff. ¶¶ 3, 4.
Plaintiffs also move the Court to strike paragraphs 7 and 8 of Mr. Gillespie's affidavit 1332*1332 on the grounds the testimony is irrelevant to the issues in the case and is speculative in nature. Paragraphs 7 and 8 concern the HSD's proposal to CMS for a Global Funding Waiver. The Global Funding Waiver would combine nursing home and D & E Waiver budgets into one Global Fund so that Medicaid reimbursement would follow the consumer whether he chooses nursing home services or D & E Waiver services and not tie the consumer to a nursing home bed or a D & E Waiver slot.
Defendants contend Mr. Gillespie's testimony goes to Defendants' efforts to maintain waiver programs and non-waiver alternatives given the limitations of the waiver programs. Defendants claim Plaintiffs have put in issue the conditions individuals experience while waiting to receive waiver services. See, Pretrial Order at 3-4. Defendants contend Mr. Gillespie's testimony demonstrates Plaintiffs are aware of Defendants' efforts to ease the burden on individuals waiting for waiver services since Doris Husted, the Public Policy Director of the ARC of New Mexico, provided assistance in developing this program. Therefore, Defendants contend Mr. Gillespie's testimony is relevant.
The Court finds this evidence is relevant to the issues in this case and will not be stricken. Moreover, Mr. Gillespie's testimony regarding the proposed Global Funding Waiver is not speculative. The Global Funding Waiver has already been developed. Defendants have already submitted the proposal to CMS, and there is no evidence CMS will not approve it.
Conclusion
The Court finds the testimony Plaintiffs move the Court to strike is relevant, based on personal knowledge, not speculative or conclusive and will therefore not be stricken.
C. Plaintiffs' Motion for Summary Judgment
Plaintiffs move the Court for summary judgment on Counts I and II of the Amended Complaint. In Count I, Plaintiffs allege a violation of 42 U.S.C. § 1983 for failure to provide Medicaid DD Waiver services with reasonable promptness. In Count II, Plaintiffs allege a violation of 42 U.S.C. § 1983 for failure to provide Medicaid D & E waiver services with reasonable promptness. According to Plaintiffs, federal law requires any State which has elected to participate in the Medicaid program under 42 U.S.C. §§ 1396 et seq., to provide all services, including DD and D & E Waiver services, to all eligible persons with reasonable promptness. Plaintiffs claim "[t]his case presents a simple, straight forward question of law: Are the Defendants required to provide Medicaid waiver services to all eligible individuals with reasonable promptness? The law is clear and unequivocal: the defendants are so required." Mem. in Supp. of Pls.' Mot. for Summ. J. at 1. Plaintiffs also contend "[t]he facts are likewise clear and beyond dispute: the Defendants are not providing those services with reasonable promptness." Id. Accordingly, Plaintiffs move the Court for an Order, enjoining Defendants from failing to provide waiver services with reasonable promptness.
In their June 14, 1999 Motion to Dismiss Pursuant to Rule 12(b)(6), Defendants argued that Plaintiffs' claims alleging failure to provide waiver services with reasonable promptness be dismissed because Plaintiffs did not have the right to waiver services under either the Medicaid Act or the Due Process Clause. Defendants claimed 1333*1333 Plaintiffs could not maintain their § 1983 action for violations of the Medicaid Act because the Act did not create a federal statutory right to waiver services. Defendants

further argued the provision of waiver services was optional and thus the "reasonable promptness" provision, 42 U.S.C. § 1396a(a)(8), did not apply to waiver services.
In an Amended Memorandum Opinion and Order, dated April 24, 2000, the Court framed the issue as "whether the Medicaid Act's `reasonable promptness' requirement applies to waiver services, and if so, whether it creates a federal right enforceable under § 1983." Lewis v. New Mexico Dep't of Health, 94 F.Supp.2d 1217, 1233 (D.N.M.2000). Applying the test articulated in Blessing v. Freestone, 520 U.S. 329, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997), the Court found the "reasonable promptness" requirement applied to waiver services and created a federal right enforceable under § 1983. Lewis, 94 F.Supp.2d at 1236.
Under Blessing, the Court's first inquiry was whether Congress intended the relevant provisions to benefit Plaintiffs. Id. at 1233. After analyzing the relevant provisions of the Medicaid Act, the Court concluded "Congress intended the `reasonable promptness' requirement to apply to waiver services." Id. at 1234. The Court's second inquiry was whether "the right assertedly protected by the statute was not so `vague and amorphous' that its enforcement would strain judicial competence." Id. (citing Blessing, 520 U.S. at 340-41, 117 S.Ct. 1353). The Court found "Plaintiffs' right to receive medical assistance, including waiver services, with `reasonable promptness' [was] not so vague and amorphous that it could not be enforced by the courts." Id. at 1236. Finally, the Court's third inquiry was whether the reasonable promptness provision unambiguously imposed a binding obligation on the states. The Court found the Medicaid Act's "reasonable promptness" requirement was judicially enforceable and unambiguously imposed a binding obligation on the states. Id. Therefore, the Court found Plaintiffs could maintain their § 1983 claims for Defendants' alleged failure to provide waiver services with reasonable promptness as required by the Medicaid Act. Id. at 1236.[3]
The Court, however, did not address the more difficult question of when Plaintiffs become "eligible individuals" to receive waiver services so as to trigger the Medicaid Act's "reasonable promptness" provision. Plaintiffs argue the "reasonable promptness" provision is triggered the moment an individual applies for DD or D & E Waiver services. On the other hand, Defendants contend that only when the individual is determined "eligible" for waiver services does the "reasonable promptness" provision of the Medicaid Act apply.
According to Defendants, in the State of New Mexico, individuals who apply for waiver services are entered on the State's Central Registry and are considered "registrants," i.e., individuals who have applied to be considered for waiver services. Defendants contend that, unlike Medicaid 1334*1334 services, waiver services were never intended to serve all eligible individuals. For this reason, Defendants maintain a Central Registry.[4] Defendants contend the Central Registry is more than simply a "waiting list" because it contains "information" regarding individuals already receiving services. Plaintiffs characterize it as a waiting list comprised of individuals desiring waiver services, individuals who may or may not be eligible for the services.
Notably, an individual on the Central Registry (a "registrant") is not even considered for waiver services until an opening or "unduplicated recipient" slot[5] in the desired waiver program becomes available, and the individual is allocated that slot. Once a slot is allocated to an individual, he becomes an "applicant" for waiver services, Presently, the allocation process is based upon the proportion of people on the Central Registry from a region and upon the date a person was placed on the Central Registry. Consequently, Defendants do not start the eligibility process[6] until an individual is allocated an unduplicated recipient slot in the waiver program.[7] Defendants assert that it is not until the DOH determines that the individual is "eligible" for waiver services that the reasonable promptness provision applies, if it applies at all. Therefore, under New Mexico's waiver programs, an individual 1335*1335 desiring waiver services must first be allocated a slot. Second, the State must determine the individual is eligible for waiver services. It is after these two events occur that Defendants contend the reasonable promptness provision applies to delivery of waiver services. In order to resolve the question of whether the reasonable promptness provision applies to waiver services prior to an individual's allocation to the program, the Court must examine the Medicaid Act and its waiver of State Plan requirements.

1. The Statutory Scheme
The DD and D & E Waiver programs operate under the Medicaid Act. See 42 U.S.C. § 1396 et seq. Under the Medicaid Act, the federal government provides financial assistance to states to enable them to provide necessary medical services to the needy. See 42 U.S.C. § 1396.[8] States may choose whether or not to participate. However, once a state chooses to participate in Medicaid, the state must comply with the requirements of the Act. Alexander v. Choate, 469 U.S. 287, 290 n. 1, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985).
Pursuant to § 1396a, a state wishing to participate in the Medicaid program must submit a State plan, providing that the State plan be "in effect in all political subdivisions of the State, and, if administered by them, be mandatory upon them." 42 U.S.C. § 1396a(a)(1). However, not everyone is eligible for Medicaid services. In order to be eligible for these services, an individual must have limited resources and fit into an eligibility category. Section 1396a(a)(2) governs the financial participation required of the State. 42 U.S.C. § 1396a(a)(2). Section 1396a(a)(8) provides "that all individuals wishing to make application for medical assistance under the plan shall have opportunity to do so, and that such assistance shall be furnished with reasonable promptness to all eligible individuals." 42 U.S.C. § 1396a(a)(8) Two regulations provide guidance regarding what constitutes "reasonable promptness." One regulation provides that "[t]he agency must establish time standards for determining eligibility which may not exceed(1) Ninety days for applicants who apply for Medicaid on the basis of disability; and (2) Forty-five days for all other applicants." 42 C.F.R. § 435.911(a). Another provision requires state agencies to "furnish Medicaid promptly without any delay caused by the agency's administrative procedures." 42 C.F.R. § 435.930(a).
In 1981, Congress amended the Social Security Act, adding § 1915(c), which gave the Secretary of the Department of Health and Human Services (DHHS) the power to waive certain requirements of Medicaid law. See Omnibus Reconciliation Act of 1981, Pub.L. No. 97-35, § 2176, 95 Stat. 812-13 (codified as amended at 42 U.S.C. § 1396n(c)). Section 1915(c) of the Act permits states to offer an array of home 1336*1336 and community-based services an individual needs to avoid institutionalization. See 42 C.F.R. § 441.300. The waiver program allows states to deviate from Medicaid requirements in the following ways: (1) services do not have to be provided statewide; (2) states can use more liberal financial eligibility criteria; and (3) designated groups can be given benefits that other groups are not eligible to receive.[9] See 42 U.S.C. § 1396n(c)(3); 42 C.F.R. § 430.25. Consequently, states can use federal and state monies to fund the provision of home and community-based services and bring a broader range of services into Medicaid coverage without adhering to the strict mandates of the Medicaid system. See 42 C.F.R. § 430.25.[10] However, states have to meet certain requirements to receive federal funding. For example, the state must demonstrate that the program is "cost neutral." See 42 U.S.C. § 1396n(c)(2)(D); see also, Auerbach Aff., Ex. C, pg. 2 (Lewin ReportReview of the Medicaid 1915(c) Home and Community Based Services Waiver Program Literature and Program Data). Essentially, the cost neutrality test requires that the average costs with the waiver must be equal to or less than the average costs without the waiver.
To participate in the waiver program, states must apply to the federal Centers for Medicaid and Medicare Services (CMS), formerly known as the Health Care Financing Administration (HCFA). 42 C.F.R. § 430.25(e). The Administrator of CMS has the authority to approve or deny requests but must consult with the Secretary of DHSS before denying a request. See 42 C.F.R. § 430.25(f)(2)(ii).
2. New Mexico's State Plan and Waiver Programs
In accordance with the Medicaid program, the State of New Mexico offers services and treatment for eligible individuals with developmental disabilities through intermediate care facilities for the mentally retarded (ICF/MR's). See 42 U.S.C. § 1396a(a)(10)(C)(iv). ICF/MR's provide food, shelter, health or rehabilitative and active treatment for the developmentally disabled or individuals with related conditions. Defs. Mem. in Supp. of Mot. to Dismiss at 5. According to Defendants, as of 1999, six provider agencies are licensed to operate ICF/MR's in New Mexico. Id. These agencies operate thirty-seven facilities or

residences, each facility serving between 1337*1337 four and sixteen residents, with most facilities serving four or eight persons. Id. Similarly, nursing facilities provide state and federally financed services to elderly individuals with disabilities who meet qualification criteria. Id. In this case, Plaintiffs allege they are receiving these services or are qualified to receive these services.
Although there is now a separate statutory section for the provision of certain home and communitybased services for the elderly, see 42 U.S.C. § 1396n(d),[11] in 1984, the State of New Mexico applied for and received approval of its DD and D & E waiver programs under § 1396n(c).[12] The availability of waiver services in New Mexico is specifically limited by "the availability of appropriations provided expressly for this purpose . . . ." N.M.Stat.Ann § 28-16A-13 (Michie Repl. Pamp.1993). As previously noted, referral for these services is through a centralized registry of individuals seeking waiver services. The State of New Mexico is currently authorized to serve 3200 persons under the DD waiver and 1950 persons under the D & E waiver. However, the State does not provide waiver services to that number of individuals under either waiver.
Plaintiffs complain the State is only providing DD waiver services to 2,500 individuals and only 1500 individuals are receiving D & E waiver services.[13] Additionally, Plaintiffs assert the State may also request an increase in the number of persons the waivers may serve. Plaintiffs argue that in spite of the State's authority to serve more individuals under both waivers, it has chosen to maintain a waiting list for waiver services. According to Plaintiffs, there are 2,600 individuals currently waiting to receive DD waiver services and 2,500 individuals waiting to receive D & E waiver services. Plaintiffs stress the majority of these individuals have been waiting to receive waiver services for periods in excess of ninety days in violation of § 1396a(a)(8) (the "reasonable promptness" provision). Plaintiffs claim that almost five hundred individuals have waited for more than three years to receive DD waiver services, 1338*1338 while others have waited as long as ten years. And, approximately 430 individuals have waited for D & E waiver services for more than two years, while some have waited as long as twelve years.
Finally, Plaintiffs claim Governor Johnson has consistently requested less money than the legislature appropriated to the DD and D & E Waiver programs, and the DOH in many years failed to use all the money appropriated for these programs. Plaintiffs claim that in 1995, Governor Johnson requested $3.5 million for the D & E Waiver program, and the legislature appropriated $4 million. In 1996, Governor Johnson requested $4 million for the D & E Waiver program and $1 million for the DD Waiver program; the legislature appropriated $4.9 million and $8.5 million, respectively. In 1997, Governor Johnson requested $4.5 million for the D & E Waiver program and $13.7 million for the DD Waiver program; the legislature appropriated $4.9 million and $14.1 million, respectively. In 1999, Governor Johnson requested $16.3 million for the DD Waiver program; the legislature appropriated $18.1 million. In 2000, Governor Johnson requested $4.9 million for the D & E Waiver program and $18.1 million for the DD Waiver program; the legislature appropriated $6.7 million and $33.9 million, respectively. In 2002, Governor Johnson requested $6.9 million for the D & E Waiver program and $40 million for the DD Waiver program; the legislature appropriated $7.8 million and $44 million, respectively. Additionally, the DOH failed to spend $447,000 in 1998, $183,000 in 1999, $3,963,000 in 2000, and $718,000 in fiscal year 2001 for the DD Waiver program. The DOH also failed to spend $1,583,000 in 2000 and $995,000 in 2001 for the D & E Waiver program.
Defendants dispute Plaintiffs' assertions. Defendants claim Plaintiffs "misrepresent the terms of the waiver renewal applications and approvals." Defs.' Opp'n to Pls.' Mot. for Summ. J. at 2. Defendants maintain the current letter from CMS approving the waivers as proposed by the State in its DD Waiver renewal application states: "The approval is subject to your agreement to serve no more individuals [sic:than] indicated on your Factor `C' in your approved per capita expenditure estimate." Defs.' Mem. in Supp. of Def. Governor Gary Johnson's Mot. for Summ. J., Maruca Aff. ¶ 5, and Ex. A. In turn, Factor "C" for the DD Waiver program indicates 3,100 as the number of unduplicated recipients for the waiver year 2000-2001. This number is designated on a form provided by the HCFA and states: "The State will make waiver services available to individuals in the target group up to the lesser of the number of individuals indicated as Factor C for the waiver year, or the number authorized by the State legislature for that time period." Maruca Aff. ¶ 6, and Ex. B.

Similarly, the CMS letter approving the D & E Waiver currently in effect as proposed by the State in its waiver renewal application states: "This approval is subject to your agreement to provide home and community-based services to no more individuals than those indicated on the estimate of Factor C in your approved per capita expenditure estimates." Maruca Aff. ¶ 7 and Ex. C. In turn, Factor "C" for the D & E Waiver indicates 1,950 as the number of unduplicated recipients for the latest waiver year. Again, this number is designated on a form provided by the HCFA and states: "The State will make waiver services available to individuals in the target group up to the lesser of the number of individuals indicated as Factor C for the waiver year, or the number authorized by the State legislature for that time period." Maruca Aff. ¶ 8, and Ex. C. 1339*1339 Defendants construe this language to mean that the State is authorized to serve only the number of individuals for which the legislature chooses to authorize funding, up to 3,100 DD recipients and up to 1,950 D & E recipients.
Defendants also dispute the number of individuals Plaintiffs claim are currently waiting for DD and D & E waiver services. Defendants contend the numbers cited by Plaintiffs for individuals waiting for waiver services were accurate "estimates" of the number of active cases on the State's Central Registry. Defendants provided this information in discovery but contend the estimates do not accurately represent the number of individuals who "have been waiting to receive waiver services." Defs.' Opp'n to Pls.' Mot. for Summ. J. at 5. Defendants claim that as to DD waiver services the only way to know the number of individuals waiting to receive services would be to contact everyone on the registry and inquire as to (1) whether they are still alive; (2) whether they still desire the services; (3) whether they qualify financially for the program; and (4) whether they still reside in the State. Id.
Additionally, Defendants contend that approximately twenty percent of the individuals on the Central Registry who are offered allocations to the DD Waiver program do not complete the process for obtaining waiver services because they either refuse services, do not meet Medicaid's eligibility requirements, or because they do not respond to the offer and the State cannot locate them. The Central Registry also includes a number of individuals who have applied for DD waiver services and have been offered the services, but they have elected to defer completing the process for determining Medicaid financial and clinical eligibility on a year-to-year basis. Defs.' Opp'n to Summ. J., Rangel Aff. ¶ 4 & Ex. C. Defendants maintain Arc of New Mexico advocated for this "deferral option."
In terms of the D & E Waiver program, Defendants contend a significant percentage of individuals on the Central Registry do not respond to letters advising them of allocations to the program. Defendants claim this is due to a variety of reasons, such as death, ineligibility, or refusal of services. For example, in June of 1999, 411 individuals were allocated to the D & E Waiver program. Of this number, 96 individuals did not respond and at least 155 individuals were denied waiver services because of ineligibility or because they declined services. Mem. in Supp. Defs.' Mot. for Summ. J. on Claims of Plaintiffs Ben Lewis, Aaron Norrid, Fred Romero, Faye Morgan and Deborah Eminger, Ex. B., Flores-Lopez Aff. ¶ 16. Moreover, in calendar year 1999, of the 654 individuals who were sent allocation letters, 81 failed to respond, 95 declined waiver services, and at least 8 failed Medicaid's eligibility standards. Id. ¶ 17.
Defendants also dispute that the DOH failed to spend all waiver appropriations. Defendants maintain that "while not all waiver appropriations were spent during the fiscal years they were appropriated, those funds were obligated to be used as allocations were made during the fiscal years, usually beyond the level of appropriation." Defs.' Opp'n to Pls.' Mot. for Summ. J. at 11. According to Defendants, this occurred because of the time it took to place individuals into waiver services after allocation. Additionally, Defendants explain that because DD and D & E waivers are included on the same budget line item, deficits for the D & E waiver program would be paid from the unliquidated funds 1340*1340 set aside for the DD Waiver program. Id. at 12. At other times, unliquidated waiver funds were used for other valid items either related to the waivers or otherwise authorized by the legislature. Defendants, however, admit that "[d]espite the Department of Health's best effort, the entire appropriation in certain fiscal years was not spent." Id., Ex. G. Defendants further admit that when appropriated funds were not spent during a fiscal year, "they either reverted to the General Fund or were reappropriated as cash to the DD Waiver program in addition to the General Fund appropriation the following year." Id.

It is evident to the Court that § 1396n(c) contemplates State waiver plans with definite limits on the number of individuals served. For example, § 1396n(c)(9) states, "In the case of any waiver under this subsection which contains a limit on the number of individuals who shall receive home or communitybased services, the State may substitute additional individuals to receive such services to replace any individuals who die or become ineligible for services under the State plan." 42 U.S.C. § 1396n(c)(9). Section 1396n(c)(10) also allows caps to no fewer than 200 individuals in the State who may receive home and community-based services under a waiver. 42 U.S.C. 1396n(c)(10). See also, 42 C.F.R. § 441.303(6) ("The State must indicate the number of unduplicated beneficiaries to which it intends to provide wavier services in each year of its program. This number will constitute a limit on the size of the waiver program . . . .").
Moreover, unlike State Medicaid plans which are required to provide the same services (in amount, duration, and scope) to all needy individuals throughout the State, home and community-based services do not have to be provided throughout the State and the services can be provided to a limited group of eligibles. See 50 C.F.R. 10013 (1985). As previously noted, "the State is not required to provide the [waiver] services to all eligible individuals who require an ICF or SNF level of care." Id. Section 1396n(c)(4) specifically authorizes States to "limit the individuals with respect to whom the State has determined that there is a reasonable expectation that the amount of medical assistance provided with respect to the individual under such waiver will not exceed the amount of such medical assistance provided for such individual if the waiver did not apply." 42 U.S.C. § 1396n(c)(4)(A).
Furthermore, the cases on which Plaintiffs rely do not support their position. Plaintiffs cite to Boulet v. Cellucci, 107 F.Supp.2d 61 (D.Mass.2000), Cramer v. Chiles, 33 F.Supp.2d 1342 (S.D.Fla.1999), Doe v. Chiles, 136 F.3d 709 (11th Cir.1998), and Boudreau v. Ryan, 2001 WL 840583 (N.D.Ill.2001), vacated in part sub nom., Bruggeman v. Blagojevich, 324 F.3d 906 (7th Cir.2003), for the proposition that "maintaining waiting lists for home and community-based waivers violate federal requirements of reasonable promptness." Mem. in Supp. of Pls.' Mot. for Summ. J. at 15. Boudreau does not stand for the proposition advanced by Plaintiffs. The Boudreau court found it could not grant defendants' motion to dismiss because it needed more facts regarding the appropriateness of Illinois' practice of keeping individuals who desired waiver service waiting even though there were open slots available. Chiles did not address waiver programs, so it is not applicable to this case.
Cramer addressed waiver programs in a different context. Cramer addressed the notice provisions and the "freedom of choice" provision of the Medicaid Act. Under 1341*1341 the Medicaid Act, the state must provide individuals with an opportunity for a hearing before the governmental agency when a claim for medical assistance is denied or is not acted upon with reasonable promptness, including when the Medicaid agency takes action to suspend, terminate, or reduce services. See 42 U.S.C. § 1396a(a)(3); 42 C.F.R. § 431.200. Under the freedom of choice provision, 42 U.S.C. § 1396n(c)(2)(C), "individuals with developmental disabilities have, within cost limitations, freedom of choice regarding services." Cramer, 33 F.Supp.2d at 1352.
Cramer involved developmentally disabled individuals residing in private intermediate care facilities (ICF/DD). The State of Florida, by legislation, intended to terminate private ICF/DD facilities and replace them with home and community-based waiver services. However, the State of Florida's 1996-1997 state budget reduced funding for the existing Home and Community-Based Waiver and provided that large state-operated institutions with ICF/DD services could provide services under the Home and CommunityBased Waiver in the same institutions and nursing home type facilities but without the regulatory requirements of ICF/DDs. Under the legislation, ICF/DD services were to be available only in stateoperated Development Services Institutions (DSIs). However, there were only four DSIs located in four counties in the State. The Court found that in denying plaintiffs adequate notice and an opportunity for a hearing to challenge the termination of the private ICF/DD program and continued benefits pending their appeals, defendants had violated federal Medicaid law and fundamental due process. Id. at 1352. The Court further found the legislation and the underfunding of the Home and Community-Based Waiver effectively eliminated a choice between ICF/DDs and home and community-based waiver services. Therefore, the Court found the legislation violated federal Medicaid law. Id. at 1352. Because defendants

intended to use Home and Community-Based Waiver funds to provide services in populated institutions and nursing homes, the Court also found the legislation and defendants violated the Americans with Disabilities Act. Id. at 1354. The Court in Boulet addressed the issue before the Court. In Boulet, mentally retarded individuals sued the State of Massachusetts and other state officials under § 1983, alleging they had not received the medical assistance they were entitled to under Medicaid with reasonable promptness. Specifically, the plaintiffs sought placement in "small community-based 24-hour residential settings" under Massachusetts' waiver program. As in this case, defendants argued that while the state had the option of providing waiver services, plaintiffs "had no legal entitlement to such services and therefore [could] not demand that the services be furnished promptly." Id. at 76. Rejecting defendants' argument, the Court held that "Plaintiffs [were] entitled to those waiver services which they [had] requested and for which they [were] eligible and further that § 1396a(a)(8) applied to waiver services as well as to services under the state plan." Id. at 78.
Nonetheless, the Court agreed with defendants that Congress intended the waiver provision "to expand, not restrict, the horizons of what states may do in providing services to eligible people." Id. at 76. The State of Massachusetts' waiver program called for providing services to 11,280 individuals in 1999, 10,514 in 2000, 11,139 in 2001 and 11,764 in 2002. The Court characterized these limitations on waiver services as a "cap on waiver services" 1342*1342 which the statute permitted. The Court recognized that "while all eligible individuals [were] entitled to waiver services, the statutory scheme allow[ed] a cap which may prevent some of those eligible individuals from receiving the services they request[ed]." Id. The Court stated the cap was "simply a constraint on eligibility." Id. at 77. The Court reasoned that individuals who applied for waiver services after the cap had been reached were not eligible or alternatively the waiver services were not feasible for them until the cap had risen to include them. Id. Therefore, the Court found the state's waiver services "to be an entitlement for eligible individuals at least up to the cap." Id. at 78. The Court further found the waiting list violated the "reasonable promptness" requirement if settings were available for the services plaintiffs requested. Id. at 80 (emphasis added).
Plaintiffs cite to Makin v. Hawaii, 114 F.Supp.2d 1017 (D.Haw.1999), for the proposition that inadequate funding does not excuse failure to comply with the reasonable promptness requirement. Mem. in Supp. of Pls.' Mot. for Summ. J. at 17. However, it is also instructive on the issue before the Court. In Makin, mentally retarded individuals challenged the State of Hawaii's administration of its home and communitybased waiver services for the developmentally disabled or mentally retarded. The objective of Hawaii's home and community-based waiver was to offer mentally retarded individuals an alternative to institutionalization in ICF-MR's. Plaintiffs were mentally retarded individuals living at home who had requested home and community-based services but because of lack of state funding for the services were placed on waiting lists. The waiting list was comprised of individuals requesting waiver services and who met the waiver programs' requirements but for whom a space in the program was not available.
In the State of Hawaii, the Department of Human Services (DHS) administers the Medicaid program pursuant to HRS § 346-17(7). The Department of Health (DOH) administers the waiver program and the waiting list. Under Hawaii's statutory scheme, Hawaii sets "population limits" on the home and community-based waiver program "to the extent of its appropriations." Id. at 1022. Defendants claimed its "population limit" was determined by the State's renewal application to HCFA.[14] In HCFA's approval of Hawaii's waiver renewal, HCFA indicated the approval was "subject to [the State's] agreement to provide services for the lesser of the number of individuals listed in column "C" below (the number listed as the estimated amount of individuals to be served by the waiver program), or the number authorized by the State legislature and/or the State DOH by appropriation for that time period." Id. (emphasis added). Defendants claimed "this `number' sets the `population limit' on the number of individuals able to be served by the state HCBS-MR program." Id. Plaintiffs countered that defendants had returned $47,776 to the state treasury from the DOH fund that funded the waiver program and therefore there was not a lack of funding for some of the individuals on the waiting list.
1343*1343 Taking into consideration that the services the plaintiffs sought were available in institutions but were refused by plaintiffs in favor of a community setting, the Court found the statute and regulations provided for limits to home and community-based waiver services. Id. at 1027. The Court examined the

statute and the agency regulations and concluded that once the HCFA approved the number of individuals to whom the state intended to grant waiver services in each of the years covered by the wavier application, it became the "population limit" on the waiver services. Id. at 1027-28. The Court concluded that the home and community-based waiver program was not an entitlement and nothing in the statute required the State to provide waiver services beyond the population limit. Id. at 1028. The Court found defendants had not violated the reasonable promptness provision by maintaining waiting lists because under the statute the State was only required to provide available medical assistance with reasonable promptness and the waiver services were not "available" once the population limits were reached. Id. 1030-31. However, the Court denied defendants' motion for summary judgment as to the "unfilled" slots because defendants had not provided any justification for their failure to fill them. Id. at 1031.
In this case, Defendants advance the same arguments as did the defendants in Boulet and Makin. In New Mexico, pursuant to the Developmental Disabilities Act, the State authorizes the DOH to provide community-based services for developmentally disabled individuals "subject to the availability of appropriations." See N.M.Stat.Ann. § 28-16A-13 (Michie Repl. Pamp.1993). Defendants also rely on the waiver renewal applications and approvals to support their argument that the federal government has authorized the State to serve only the number of individuals for which the legislature has authorized funding, up to 3,100 DD recipients and up to 1,950 D & E recipients. Def. Governor Gary Johnson's Mot. for Summ. J. on Grounds of Legislative Immunity, Maruca Aff. ¶ 5 and Ex. A. Defendants further claim waiver programs are not entitlement programs specifically because the states are authorized to restrict the number of individuals they serve and the amount of money they spend. Defs.' Opp'n to Pls.' Mot. for Summ. J., Ex. I, Auerbach Aff. ¶ 15; Defs.' Opp'n to Pls.' Mot. in Limine, Ex. A, Milligan Aff.¶ 11. Accordingly, Defendants contend "the waiver statutes, regulations, and the terms of New Mexico's waivers themselves preclude § 1396a(a)(8) from benefitting individuals who have not been allocated to an unduplicated recipient slot in the program." Defs.'s Opp'n to Pls.' Mot for Summ. J. at 20.
Section 1396n(c) and the implementing regulations support Defendants' position regarding the State's right to limit waiver services. However, the courts that have addressed the issue of whether the reasonable promptness provision applies once the state determines an individual is eligible for waiver services and a slot is available for that individual have found that the provision does apply. In this case, the State of New Mexico limits waiver services to those individuals it determines eligible for waiver services and for whom an unduplicated recipient slot is available. Whether the Court construes this limitation on waiver services as "caps" or "population limits," the result is the same. For those individuals who are determined to be eligible for waiver services but for whom there is no available unduplicated recipient slot, the reasonable promptness provision does not apply.
1344*1344 In this case, the State does not determine eligibility until an unduplicated recipient slot is available in its waiver program and the individual is allocated that slot. Under the statute and its implementing regulations, the State is authorized and encouraged to try "new or different approaches to the efficient and cost-effective delivery of health care services." See 42 C.F.R. § 430.25(b). Defendants have advanced a reasonable and cost-effective explanation for not determining eligibility until an individual is allocated a slot in the desired waiver program. Moreover, even if Defendants determined eligibility when the individual registered for waiver services, under the statute and the regulations, the State would not have to provide waiver services until there was an available unduplicated recipient slot.
Having found the reasonable promptness provision applies to waiver services once an individual is allocated an unduplicated recipient slot and the individual is eligible for the waiver services, the Court will address Plaintiffs' claims that (1) the State has failed to allocate available unduplicated recipient slots in a reasonably prompt manner, and (2) for several years the State has failed to use all the money appropriated for waiver programs. In other words, Plaintiffs claim Defendants are not providing Medicaid waiver services to eligible individuals with reasonable promptness in violation of § 1396a(a)(8).
As previously noted, the CMS letters approving the waiver programs as proposed by the State in its waiver renewal applications state: "The State will make waiver services available to individuals in the target group up to the lesser of the number of individuals indicated as Factor C for the waiver year, or the

number authorized by the State legislature for that time period." Maruca Aff. ¶ a 6, and Ex. B (emphasis added). Factor C for the DD waiver program is 3100 and factor C for the D & E waiver program is 1,950. Additionally, the State of New Mexico limits it waiver services by "the availability of appropriations provided expressly for this purpose . . . ." N.M.Stat.Ann. § 28-16A-13 (Michie Repl. Pamp.1993)(emphasis added). Relying on the above language in its waiver renewal applications and on § 28-16A-13, Defendants maintain the State is authorized to serve only the number of individuals for which the legislature chooses to authorize funding, up to 3,100 DD recipients and up to 1,950 D & E recipients. According to Defendants "regular allocations to the DD waiver occur at least twice a year when the DOH conducts a budget review" and "[r]egular allocations to the D & E waiver are made periodically throughout each fiscal year according to the availability of funds." Defs.' Opp'n to Pls.' Mot. for Summ. J. at 18, undisputed facts 22 & 23 (emphasis added).
Plaintiffs assert the State has not always spent the appropriations provided expressly for waiver services. Defendants do not dispute this assertion. Defendants admit that "Despite the Department of Health's best efforts, the entire appropriation in certain fiscal years was not spent." Defs.' Opp'n to Pls.' Mot. for Summ. J., Ex. G. In 2000, the unexpended balance was $3,963,000. This is a significant amount of money Defendants could have used to create more unduplicated recipient slots for individuals registered for waiver services. Defendants have advanced different reasons why appropriations were not spent during the fiscal years they were appropriated. See Defs.' Opp'n to Pls.' Mot. for Summ. J. at 11. Defendants admit, for example, that "[t]he funds were not always liquidated during the fiscal years they 1345*1345 were appropriated because of the time it took to place people into services after allocation . . . ." Id. (emphasis added). Defendants further admit that, in some instances, "individuals who were allocated to the DD and D & E Waiver programs would not come into services until the following year, or not at all. This occurred for a number of reasons, including difficulties in contacting those individuals, in verifying financial eligibility, and the existence of individuals who were not deemed eligible for the programs." Defs.' Opp'n to Pls.' Mot. for Summ. J., Ex. G.
Since the filing of this action, Defendants have taken remedial steps to "shorten the time between allocation and the provision of services." Defs.' Opp'n to Pls.' Mot. for Summ. J., Ex. H. Defendants have made the following changes to the process: (1) improved its method in procuring psychological and physical examinations and other evaluations needed for determining eligibility; (2) identified staff member "champions" in each of its regional offices to act as point persons to assist allocated individuals and their families through the eligibility process; (3) the DOH has begun the allocation process in the fiscal year 2000 prior to when new fiscal year 2001 funds were available; (4) the Long Term Services Division (LTSD) sends reports to regional offices on outstanding open allocations so the regional office can follow up with the individuals and their families; and (5) in fiscal year 1999, the LTSD began to review expenditures on a monthly basis and to make allocations no less than quarterly (Defendants claim this level of review kept funds flowing for client services and did not overwhelm the provider system). Defs.' Opp'n to Pls.' Mot. for Summ. J., Ex. H.
The Court recognizes the State has great discretion in developing its waiver programs, including setting eligibility requirements and limitations for waiver services. Nonetheless, this discretion is not unfettered. Once the State sets up its waiver programs, it is obligated to implement the waiver programs as it has fashioned them. In this case, the State has set limits for waiver services up to the "availability of appropriations provided expressly for this purpose." By not spending the appropriations earmarked for waiver service, Defendants are not fulfilling their obligation. And, although Defendants presented evidence that they have provided other non-waiver services to individuals on the Central Registry, this does not excuse Defendants' failure to use available funds for waiver services and to provides those services with reasonable promptness. Cf., Boulet, 107 F.Supp.2d at 79 ("The fact that they have been receiving other services and that they might be able to receive placement in large institutions . . . cannot be sufficient to satisfy § 1396a(a)(8)."). Defendants have advanced several reasons for the delays in providing waiver services after allocation to the desired waiver program. Most appear to be due to their administrative procedures. However, the regulations require state agencies to "furnish Medicaid promptly without any delay caused by the agency's administrative procedures." 42 C.F.R. § 435.930(a). Though it may be difficult to determine exactly what is meant by "reasonable promptness" in the provision of waiver

services, in this case, individuals remain on the Central Registry for years. Moreover, Defendants admit that, in some instances, individuals allocated to the waive programs would not receive the services until the following year. Accordingly, the Court will grant Plaintiffs' Motion for Summary Judgment as to Count I and II as to those eligible individuals for whom there is an available unduplicated recipient slot.
1346*1346 Conclusion
Based on § 1396n(c) and the implementing regulations, the Court finds that the reasonable promptness provision, § 1396a(a)(8), applies to individuals on the Central Registry who are determined eligible for waiver services and for whom there is an available unduplicated recipient slot. Because Plaintiffs' claims that the State has failed to fill available unduplicated recipient slots in a reasonably prompt manner and has failed to use all the money appropriated for waiver programs are not in dispute, summary judgment will be granted. Therefore, Plaintiffs' motion for summary judgment as to Count I and II is granted.
D. Defendants' Motion to Strike all Claims Seeking Class Action-Like Relief
Defendants move the Court for an order denying class action-like relief. According to Defendants, the Court should strike claims made on behalf of persons who are "similarly situated" to Plaintiffs because Plaintiffs have not brought this suit as a class action. Defendants complain that "Plaintiffs have failed to include class allegations, propose a class definition, or move for class certification." Defs.' Mem. in Supp. of Mot. to Strike All Claims Seeking Class Action-Like Relief at 2.
According to Plaintiffs, they "seek a declaration that the waiting periods maintained by the State of New Mexico violate the Medicaid Act and seek an injunction directing Defendants to provide Waiver services with reasonable promptness." Pls.' Opp'n to Mot. to Strike at 2. Plaintiffs argue that, if the Court grants the relief sought, the relief will benefit all persons on the waiting list thus making class certification unnecessary. Id.
Defendants filed this motion prior to the Court ruling on Defendants' Motion to Dismiss P & A for lack of standing. In its November 5, 2002 Memorandum Opinion and Order, the Court denied Defendants' motion to dismiss and found P & A has standing to bring this action on behalf of its constituents. Therefore, many of Defendants' arguments are moot. Specifically, in its November 5, 2002 Memorandum Opinion and Order, the Court rejected Defendants' claim that P & A did not have statutory authority to represent "the unidentified and unknown persons" in the present case. Defendants raise this same argument in their motion to strike and contend Plaintiffs "must resort to the class action requirements in Rule 23 in order to bring claims on behalf of others." Defs.' Mem. in Supp. of Mot. to Strike All Claims Seeking Class ActionLike Relief at 8.
In addressing Plaintiffs' Motion for Summary Judgment as to Counts I and II, the Court found Defendants must provide waiver services with reasonable promptness to eligible individuals for whom an unduplicated recipient slot is available. This ruling will benefit all individuals on the Central Registry. Proceeding as a class action would serve no useful purpose. See e.g., Kansas Health Care Association v. Kansas Department of Social and Rehabilitation Servs., 31 F.3d 1536, 1548 (10th Cir.1994)(action by nursing homes challenging Kansas Medicaid reimbursement rates; relief would affect the interests of all the potential class members, regardless of whether a class was formally certified); Martinez v. Richardson, 472 F.2d 1121, 1126 (10th Cir.1973)(action for injunctive relief by Medicare recipients against Secretary of Health, seeking to prevent termination of benefits without a prior hearing; class action not necessary because the same relief would be afforded all potential class members); Bennett v. 1347*1347 Butz, 386 F.Supp. 1059, 1072 n. 1 (D.Minn.1974)(action seeking declaratory and injunctive relief by food stamp recipients; because the relief sought would be identical regardless of whether or not a class action was

maintained, court found no useful purpose for proceeding as a class). Accordingly, Defendants' motion to strike is denied.
IT IS THEREFORE ORDERED that Plaintiffs' Motion for Summary Judgment on Counts I and II of the Amended Complaint [Doc. No. 133] is granted; Defendant Governor Gary Johnson's Motion for Summary Judgment on Grounds of Legislative Immunity [Doc. No. 136] is granted; Defendants' Motion to Strike all Claims Seeking Class Action-Like Relief [Doc. No. 134] is denied; and Plaintiffs' Motion to Strike Affidavits Supporting Defendants' Opposition to Plaintiffs' Motion for Summary Judgment [Doc. No. 159] is denied.
[1] The underlying facts are set forth in more detail in the Court's April 24, 2000 Amended Memorandum Opinion and Order. See, Lewis v. New Mexico Dep't of Health, 94 F.Supp.2d 1217 (D.N.M.2000).
[2] Since the filing of the action, Plaintiffs have voluntarily dismissed their ADA claims.
[3] As to Plaintiffs' due process claim, Defendants argued Plaintiffs had no protected property interests because they were "merely applicants" for government services. The Court found the weight of authority held that applicants do have a constitutionally protected interest in government benefits for which they have applied. Lewis, 94 F.Supp.2d at 1237. Accordingly, the Court denied Defendants' motion to dismiss Plaintiffs' § 1983 claims for due process violations on this basis.
[4] In 2001, the D & E Waiver was transferred to the HSD. Thus, the DD and D & E Waivers have separate Central Registries. The Central Registries are not used to determine priority for allocations in cases of crisis or emergency placement into the waiver programs, or placement into the waiver programs upon the closure of ICF/MR's or other facilities. Defs.' Opp'n to Pls.' Mot. for Summ. J. at 6.
[5] Defendants use the term "unduplicated recipient" slot to indicate an opening in either waiver program that is available for allocation. Medicaid regulations require Defendants to remove an individual who has been hospitalized for a full calendar month from waiver services in order to ensure the individual receives funding for his/her hospitalization under other programs. It is the DOH's policy to put on hold allocated slots for individuals who require hospitalization for less than a full calendar month. The DOH works closely with the individual to ensure that waiver services are immediately restored upon discharge from the hospital. These slots are not considered available for allocation. Reply Br. in Supp. of Defs.' Mot. for Sum. J. on the Claims of Pls. Ben Lewis, Aaron Norrid, Fred Romero, Faye Morgan, and Deborah Eminger, Ex. B, Flores-Lopez Aff. ¶¶ 24-27.
[6] Section 435.911 governs the timely determination of eligibility. See 42 C.F.R. § 435.911. Under this section, Defendants must establish time standards for determining eligibility and inform the applicant of what they are; these standards may not exceed ninety days for applicants who apply for Medicaid on the basis of disability and forty-five days for all other applicants. 42 C.F.R. § 435.911(a)(1) & (2).
[7] Until approximately November 1, 1999, the registration process for the Central Registry and the formal application for Medicaid were both part of a dual process, with registration through the DOH onto a Central Registry for all DD waiver services and formal application to the HSD to determine eligibility for Medicaid assistance going forward within the same period. In 1999, Defendants decided to defer the Medicaid financial and other eligibility determinations until there was an unduplicated recipient slot available for an individual in the requested waiver program to avoid duplication of effort by the HSD and the applicant. According to Defendants, processing the formal application for Medicaid financial and other clinical eligibility at the time of registration could result in a denial of eligibility because of the lack of an unduplicated recipient slot or for failure to meet Medicaid financial or clinical eligibility. Thus, when a slot subsequently became available the applicant would have to provide a complete new application and the HSD would have to redetermine Medicaid financial and clinical eligibility. Defs.' Opp'n to Pls.' Mot. for Summ. J., Ex. E, Medrano Aff. ¶¶ 4 and 5.
[8] Section 1396 states:
For the purpose of enabling each State, as far as practicable under the conditions in such State, to furnish (1) medical assistance on behalf of families with dependent children and of aged, blind, or disabled individuals, whose income and resources are insufficient to meet the costs of necessary medical services, and (2) rehabilitation and other services, to help such families and individuals attain or retain capability for independence or self-care, there is hereby authorized to be appropriated for each fiscal year a sum sufficient to carry out the purpose of this subchapter. The sums made available under this section shall be used for making payments to States which have submitted, and had approved by the Secretary, State plans for medical assistance. 42 U.S.C. § 1396.
[9] The final rule implementing § 2176 of the Omnibus Budget Reconciliation Act of 1981 makes clear that under the waiver, unlike a State plan, "home and community-based services do not have to be provided throughout the State." See 50 FR 10013 (1985). Moreover, "a State can choose to provide home and community-based services to a limited group of eligibles, such as the developmentally disabled." Id. Significantly, "[t]he State is not required to provide the services to all eligible individuals who require an ICF (intermediate care facility) or SNF (skilled nursing facility) level of care." Id. The State also may exclude those individuals for whom there is reasonable expectation that home and community-based services would be more expensive than the Medicaid services the individual would otherwise receive. Id.
[10] Section 430.25(b) states:

Waivers are intended to provide the flexibility needed to enable States to try new or different approaches to the efficient and cost-effective delivery of health care services, or to adapt their programs to the special needs of particular areas or groups of recipients. Waivers allow exceptions to State plan requirements and permit a State to implement innovative programs or activities on a time-limited basis, and subject to specific safeguards for the protection of recipients and the program.
42 C.F.R. § 430.25(b).
[11] Section 1396n(d)(1) provides in pertinent part:
Subject to paragraph (2), the Secretary shall grant a waiver to provide that a State plan approved under this subchapter shall include as "medical assistance" under such plan payment for part or all of the cost of home or community-based services (other than room and board) which are provided pursuant to a written plan of care to individuals 65 years of age or older with respect to whom there has been a determination that but for the provision of such services the individuals would be likely to require the level of care provided in a skilled nursing facility or intermediate care facility the cost of which could be reimbursed under the State plan.
42 U.S.C. § 1396n(d)(1).
[12] Section 42 U.S.C. § 1396n(c)(1) provides in pertinent part:
The Secretary may by waiver provide that a State plan approved under this subchapter may include as "medical assistance" under such plan payment for part or all of the cost of home or community-based services (other than room and board) approved by the Secretary which are provided pursuant to a written plan of care to individuals with respect to whom there has been a determination that but for the provision of such services the individuals would require the level of care provided in a hospital or a nursing facility or intermediate care facility for the mentally retarded the cost of which could be reimbursed under the State plan.
42 U.S.C. § 1396n(c)(1).
[13] As of June 30, 2002, approximately 2,837 individuals had approved plans of care for the DD waiver program and 1,512 individuals were receiving D & E Waiver services. Defs.' Opp'n to Pls.' Mot. for Summ. J. at 4.
[14] A portion of the renewal application requested an estimate of the number of "unduplicated individuals" that the state expected to serve during the relevant years of the program. In its most recent application, the State of Hawaii estimated in column "C" of the application that it expected to serve 863 individuals during the fiscal year 1997-98, 976 individuals during fiscal year 1998-99, 1089 individuals during fiscal year 1999-2000, and 1200 individuals during fiscal year 2000-01. Makin, 114 F.Supp.2d at 1022.

 
 Case 6:99-cv-00021-MV-JHG Document 200 Filed 02/05/04 Page 1 of 2

1'/ THE l"\Tn:D STATES DISTRICT COl'RT

FOR THE DISTRICT OF NE\\' "EXICO
BE'i LEWIS.-\.-\RO'i 'iORRID. BILLY .10 ()lISENBERRY alltl FRED RO\IERO. h~' and thl"oll~h their legal guardian and next frienll THE ARC OF \'F.\\' \IEXICO. BRE.-\\\'F. LIDDELL b~· allll thmugh her parellt a 1111 legal guanliall .ltDY LIDDELL. \IATTIIEW ALLEN. by anll through his
pan-Ills and Icg~ll guardians ,n" and
..\\(a:L.-\ .-\1.1_1'.'/. F.\ Y '\ORGAN. DEBOR-\H E\II"(;ER a 1111 PROTECTION .\\D .\I)\"()CACY SYSTHI. I"C..

04 FEO -::; [';i 2: I 0
.: .

Plaintiffs,
\E'\ 'IEXICO DEPART:\IENT OF III'.ALTII. 'iE\\' l\IEXICO DEPART\lE:'IiT OF IRMAi' SERVICES•.1. ALEX VALDEZ. Seuetary ul" the D"partment Ill" Health anll Sc-crctal"y I)csigncc of the I)cpartrncnt of Human St.'I""ict's in his ufficial capacities. und (;O\ER,\OR GARY .IOHNSOi'\ ill his umeial capacity.
Defelllla IItS.

i'u. CIV 99-III1Z I i\lV/,IHG

.JUDGl\1[\T

I.: 11 11.: n.:d its \klllllrandu1l1 Upinipll and Order. granling Plainritf·: \lntilHl rnr Sllllllllill": .IL1dg.lll~1ll :IS hI C';, 'llllls I and II tit' tilL' .:\ ll1l.:'I1JI.:'J Complaint and Defendant Governor (j:.lry Johnson' s ~lollon fur Summary Judgl11L'nl till (jrllunds l.lr l.egislative Immunity. Spt:'clflcally. the C\lllrt fOllnJ !hat basl:d nn ~~

~ 13 l)f)..lf a )(:---1. appiicd to 11lllIndual.-j on the Of) and D&E <.. ·I".'ntral Ih·1!htrll..·:-; to \\ hnlll Iktc-:Hianh
<I!l{)~ah.:d an <l\"ailahk L1lldi..lplJeatcd recipient slot and \\"ho fk'!L'ndant:; JdcrminL'd \\"C're ell~ihle for on

Case 6:99-cv-00021-MV-JHG Document 200 Filed 02/05/04 Page 2 of 2
* or Il&F "·Ji'·c'r sc'rliees. Thc' Court further found Defendants ,·iolated 1.1%a(aHS) when they I,"led t,)
fill a,·ailabl~ unduplieat~d recipient slot, in a reasonably prompt manner and (,.iled 1<\ pronde \\aiwr s~,,·iees after ailoeati,,,, in a rea,onahly prompt mann~r. The Court ,ils,) found th~ State had failed to us~ alllh...' funds appropriated for \...3i\"l~r services during the fiscal }"L'ars in \yhif...h thL' funds \\'tTL' apprf,llwia1l'd. Finally. thl' Court round Governor Gary Johnson was entitled to kgishlti\"t.~ 1I11Ill11nity.
i\OW, THEIU:FORE, IT IS HEREIl\' ORDERED that Defendants shJIl allo~ate to Jny of the appropriate registrants on the Df) anJ P&E C~ntral Registries any unduplicated n:clpi ...'nt :-.h)ts as soon as the slots become,,,·,"lable. Defendants shall then determine an applicant's eligibility I,'r Its Dil or D&E 'lai,·er se,,·iees ,,·ithin ninc'tl (\)1) days after allocation to the DO or D&E programs. S",.''+2 (·.F.R ~ '+.15')11. IT IS n·RTHER ORDElmD that Jlicr allocation to the IJD or D&F programs and alier eligibility is JC'laminL'd. Defendants shall provide the appli~<.lI1b \\"~lI\"cr sen"ices within nint:ty (()() day:-o. IT IS FI'RTHER OIUlEREl) that Defendants shall spend all fund, approprialc'd by the Stare l.C'gislalun: !c,)r pi) and ()&E wain:,r sl'r\"ice-s in the- fIscal )"l'ar in which thl' funds are appropriated. IT IS Ft:!{THER OIUlF.RED that Defendant Gownlllr Uill Richardson, substituted pursuant to red.R.Cid'. 251d)( I), is dismiss~d with prejudice. IT IS FI·RTHF.R OIU)ERED that Plaintiffs may file their motion I,\r a11"rney fees pursuant t,) ~2 l I.S.C. ~ 1():--;~, alon,¥ with tlwir supporting documentation. fkkndanls may respond in aCl'urdance w11h DS.tvl.l.R··l 'i,·. f.(,.
2

 
 Case 6:99-cv-00021-MV-JHG Document 254 Filed 09/07/05 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

BEN LEWIS, AARON NORRID, BILLY JO QUISENBERRY and FRED ROMERO, by and through their legal guardian and next friend THE ARC OF NEW MEXICO, BREANNE LIDDELL, by and through her parent and legal guardian JUDY LIDDELL, MATTHEW ALLEN, by and through his parents and legal guardians JIM and ANGELA ALLEN, FAY MORGAN, DEBORAH EMINGER and PROTECTION AND ADVOCACY SYSTEM, INC.,

Plaintiffs,

vs.

No. CIV 99-0021 MV/JHG

NEW MEXICO DEPARTMENT OF HEALTH, NEW MEXICO DEPARTMENT OF HUMAN SERVICES, J. ALEX VALDEZ, Secretary of the Department of Health and Secretary Designee of the Department of Human Services in his official capacities, and GOVERNOR GARY JOHNSON in his official capacity,

Defendants.

MEMORANDUM OPINION AND ORDER

THIS MATTER is before the Court on the following motions: (1) Plaintiff’s Corrected

Motion for Order to Show Cause Why Defendants Should not be Held in Contempt of Court for

Failing to Comply With This Court’s February 5, 2004 Order and Memorandum Brief in Support

Thereof [Doc. No. 222], filed September 27, 2004; and (2) Plaintiff’s Second Motion for Order to

Show Cause Why Defendants Should Not be Held in Contempt of Court for Failing to Comply

Case 6:99-cv-00021-MV-JHG Document 254 Filed 09/07/05 Page 2 of 18
With This Court’s February 5, 2004 Judgment and Memorandum Brief in Support Thereof [Doc. No. 232], filed January 13, 2005. Having reviewed the motions, the memoranda in support and in opposition, and having reviewed the transcript of the February 18, 2005 hearing held before the Honorable Joe H. Galvan, the Court finds that the motions are not well taken and will be denied.
I. Discussion A. Plaintiff’s Corrected Motion for Order to Show Cause
In Plaintiff’s Corrected Motion for Order to Show Cause, Plaintiff contends Defendants have failed to comply with the Court’s February 5, 2004 Judgment by not allocating all available, unduplicated recipient slots, by failing to determine the eligibility of applicants for available slots, and by failing to provide services to eligible individuals for whom an unduplicated recipient slot is available. Defendants oppose the motion arguing Plaintiff’s motion is an untimely attempt to seek reconsideration of the Court’s Judgment.
Plaintiff contends Defendants have failed to allocate all available, unduplicated recipient slots for both waiver programs. According to Plaintiff, Defendants “intend to allocate only 300 of the approximately 1,102 available unduplicated DD waiver slots (sic) recipient slots in the 20042005 fiscal year.” Pl.’s Corrected Mot. for Order to Show Cause at 2. Additionally, Plaintiff claims Defendants are only serving 2,000 individuals on the D& E waiver, yet there are 2,500 unduplicated recipient slots in the D&E waiver. Thus, Plaintiff contends there are “500 available unduplicated recipient slots in the D&E program which the Defendants have failed to fill.” Id.
Plaintiff bases its claims on its understanding of “unduplicated recipient slots.” Plaintiff asserts “[t]he number of unduplicated recipient slots is determined by taking the number of recipient slots set forth in the State’s plan, 4,300, and subtracting from it the number of persons
2

Case 6:99-cv-00021-MV-JHG Document 254 Filed 09/07/05 Page 3 of 18
receiving DD Waiver services under the State’s DD waiver program. The difference between these two numbers equals the number of available unduplicated recipient slots.” Id. at 4. Therefore, Plaintiff argues Defendants are not in compliance with the Court’s Judgment because only 3,288 individuals are receiving DD waiver services. Plaintiff contends there are 1,102 (4,300-3,288) unduplicated recipient slots in the DD waiver program which Defendants have failed to allocate. Plaintiff advances similar arguments to support its claim that Defendants are not complying with the Court’s Judgment as to the D&E waiver. Id. at 6.
Defendants maintain the State “can limit the number of waiver recipients to the number of people for whom the Legislature has provided funding, and the State can await allocating an unduplicated recipient slot until legislative funding is available.” Defs.’Resp. to Corrected Mot. for Order to Show Cause at 7. Additionally, Defendants contend “there is no requirement that the State determine the eligibility of a potential recipient of waiver services before allocating an unduplicated recipient slot to the individual.” Id.
Plaintiff’s motion is based on its misunderstanding of the Court’s August 5, 2003 Memorandum Opinion and the Court’s February 5, 2004 Judgment. At the inception of this action, Plaintiffs maintained Defendants were required to provide home and community-based services to all eligible individuals seeking Medicaid Waiver services. See e.g, Pls.’Reply to Defs.’Resp. to Mot. for Summ. J. at 10-12 [Doc. No. 151]. Thus, Plaintiffs argued that “waiting lists violated Medicaid requirements.” Pls.’Mot. for Summ. J. at 15 [Doc. No. 133]. Plaintiffs next argued Defendants were required to provide waiver services to all eligible individuals up to the numerical caps contained in the approved waiver applications.
3

Case 6:99-cv-00021-MV-JHG Document 254 Filed 09/07/05 Page 4 of 18
On the other hand, Defendants maintained the State could limit the individuals it can serve
on the waiver programs according to the amount of money appropriated by the legislature.
Defendants argued the State had “caps built into its waivers– caps that have been approved by
CMS.” Defs.’Opp. to Pls.’Mot. for Summ. J. at 21 [Doc. No. 147]. Defendants further argued
“these caps include a numerical number of unduplicated recipient (UDR) slots, and further, limit
the size of the waivers to the number funded by the New Mexico Legislature.” Id. Therefore,
Defendants maintained the state legislature could limit the number of people served by making
appropriations to the waiver programs in amounts less than necessary to fund the full number of
unduplicated recipient slots shown in Factor C of the State’s waiver application. Id.
After thorough analysis of the evidence submitted by the parties, the Court agreed with
Defendants’position. The Court found §1396n(c) contemplated State waiver plans with definite
limits on the number of individuals served. See Court’s August 5, 2003 Memorandum Opinion at
33. Specifically, the Court found:
It is evident to the Court that §1396n(c) contemplates State waiver plans with definite limits on the number of individuals served. For example, §1396n(c)(9) states, “In the case of any waiver under this subsection which contains a limit on the number of individuals who shall receive home or community-based services, the State may substitute additional individuals to receive such services to replace any individuals who die or become ineligible for services under the State plan.” 42 U.S.C. §1396(c)(9). Section 1396n(c)(10) also allows caps to no fewer than 200 individuals in the State who may receive home and community-based services under a waiver. 42 U.S.C. §1396n(c)(10). See also, 42 C.F.R. §441.303(6)(“The State must indicate the number of unduplicated beneficiaries to which it intends to provide waiver services in each year of its program. This number will constitute a limit on the size of the waiver program . . . .”).
Moreover, unlike State Medicaid plans which are required to provide the same services (in amount, duration, and scope) to all needy individuals throughout the State, home and community-based services do not have to be provided throughout the State and the services can be provided to a limited group of eligibles. See 50 F.R. 10013 (1985). As previously noted, “the State is not required to provide the [waiver] services to all eligible individuals who require an ICF or SNF level of care.” Id. Section 1396n(c)(4) specifically authorizes States to “limit the individuals provided benefits under such waiver to individuals with respect to
4

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whom the State has determined that there is a reasonable expectation that the amount of medical assistance provided with respect to the individual under such waiver will not exceed the amount of such medical assistance provided for such individual if the waiver did not apply.” 42 U.S.C. §1396n(c)(4)(A).
Id. The Court also analyzed the cases cited by Plaintiffs and found they did not support their
position. After setting forth all the factors it considered and its rationale, the Court concluded:
“Section 1396n(c) and the implementing regulations support Defendants’position regarding the
State’s right to limit waiver services.” Id. at 33-39.
The confusion stems from the following language in the Court’s August 5, 2003
Memorandum Opinion: “In this case, the State has set limits for waiver services up to the
“availability of appropriations provided expressly for this purpose.” Id. at 42. This language
tracks the language of the Developmental Disabilities Act which Defendants cited in their
response to support their position. In its Memorandum Opinion, the Court cited to this statute,
stating:
In this case, Defendants advance the same arguments as did the defendants in Boulet and Makin. In New Mexico, pursuant to the Developmental Disabilities Act, the State authorizes the DOH to provide community-based services for developmentally disabled individuals “subject to the availability of appropriations.” See N.M.Stat.Ann. § 28-16A13 (Michie Repl. Pamp. 1993). Defendants also rely on the waiver renewal applications and approvals to support their argument that the federal government has authorized the State to serve only the number of individuals for which the legislature has authorized funding, up to 3,100 DD recipients and up to 1,950 D&E recipients. Def. Governor Gary Johnson’s Mot. for Summ. J. on Grounds of Legislative Immunity, Maruca Aff. ¶ 5 and Ex. A. Defendants further claim waiver programs are not entitlement programs specifically because the states are authorized to restrict the number of individuals they serve and the amount of money they spend. Defs.’Opp’n to Pls.’Mot. for Summ. J., Ex. I, Auerbach Aff. ¶15; Defs.’Opp’n to Pls.’Mot. in Limine, Ex. A, Milligan Aff. ¶ 11. Accordingly, Defendants contend “the waiver statues, regulations, and the terms of New Mexico’s waivers themselves preclude §1396a(a)(8) from benefitting individuals who have not been allocated to an unduplicated recipient slot in the program.” Defs.’Opp’n to Pls.’Mot. for Summ. J. at 20.
Section 1396n(c) and the implementing regulations support Defendants’position regarding the State’s right to limit waiver services. However, the courts that have addressed the issue of whether the reasonable promptness provision applies once the state determines an individual
5

Case 6:99-cv-00021-MV-JHG Document 254 Filed 09/07/05 Page 6 of 18
is eligible for waiver services and a slot is available for that individual have found that the provision does apply. In this case, the State of New Mexico limits waiver services to those individuals it determines eligible for waiver services and for whom an unduplicated recipient slot is available. Whether the Court construes this limitations on waiver services as “caps” or “population limits,” the result is the same. For those individuals who are determined to be eligible for waiver services but for whom there is no available unduplicated recipient slot, the reasonable promptness provision does not apply. Id. at 42 (emphasis added). After entry of the Court’s Memorandum Opinion, Plaintiffs pointed out to the Court that the Developmental Disabilities Act did not address the DD waiver program. See Mem. in Support of Pls.’Mot. for Entry of Judgment at 3 n.3 [Doc. No. 194]. Plaintiffs also argued the statute did not set a specific number of individuals to whom the State intended to provide waiver services. Id. The Court considered Plaintiffs’arguments. Nonetheless, the Court based its conclusion that §1396n(c) allowed the State to restrict the number of individuals it serves and the amount of money it spends on waiver programs on several factors and was not persuaded that Plaintiffs’contrary position was supported by the evidence. Accordingly, the Court entered its Judgment. In terms of a “cap” based on legislative funding, the Court found Defendants’arguments compelling. See August 5, 2003 Memorandum Opinion at 29-30. The letter from CMS approving the waiver as proposed by New Mexico in its renewal applications for the DD Waiver states: “The approval is subject to your agreement to serve no more individuals [sic:than] indicated on your Factor “C” in your approved per capita expenditure estimate.” See Maruca Aff. ¶5 (filed in support of Governor Gary Johnson’s Motion for Summ. J. on Grounds of Legislative Immunity [Doc. No. 137], Ex. B). In turn, Factor “C” for the DD Waiver indicated 3,100 as the number of unduplicated recipients for the waiver year 2000-2001. Id. This number is designated on a form provided by the HCFA and states: “The State will make waiver services available to
6

Case 6:99-cv-00021-MV-JHG Document 254 Filed 09/07/05 Page 7 of 18
individuals in the target group up to the lesser of the number of individuals indicated as Factor C for the waiver year, or the number authorized by the State legislature for that time period.” Maruca Aff. ¶6 (emphasis added), Ex. B.
Similarly, the CMS letter approving the D&E Waiver as proposed by New Mexico in its waiver renewal application states: “This approval is subject to your agreement to provide home and community-based services to no more individuals than those indicated on the estimate of Factor C in your approved per capita expenditure estimates.” Maruca Aff. ¶7, Ex. C. In turn “Factor C” for the D&E Waiver indicated 1,950 as the number of unduplicated recipients for the latest waiver year (2002). Again, this number is designated on a form provided by HCFA and states: “The State will make waiver services available to individuals in the target group up to the lesser of the number of individuals indicated in Factor C for the waiver year, or the number authorized by the State legislature for that time period.” Id. (emphasis added).
Based on the language of the CMS letters approving the waivers, Defendants argued the federal government had authorized New Mexico to serve only the number of individuals for which the legislature chose to authorize funding, up to 3,100 DD recipients and 1,950 D&E recipients. To further support their argument, Defendants submitted numerous exhibits. For example, a January 10, 2000 HCFA Update to State Medical Directors states in pertinent part:
In this attachment, we discuss limits that States may place on the number of persons served and on services provided under an HCBS waiver. Current law requires States to identify the total number of people who may be served in an HCBS waiver in any year. States may derive this overall enrollment limit from the amount of funding the legislature has appropriated.
** ** ** ** ** ** ** If a State finds that it is likely to exceed the number of approved participants, it may request a waiver amendment at any time during the waiver year. Waiver amendments may be retroactive to the first day of the waiver year in which the request was submitted.
7

Case 6:99-cv-00021-MV-JHG Document 254 Filed 09/07/05 Page 8 of 18
** ** ** ** ** ** **
HCFA has allowed States to indicate that the total number of people to be served may be the lesser of either (a) a specific number pre-determined by the State and approved by HCFA (the approved “factor C” value), or (b) a number derived from the amount of money the legislature has made available (together with corresponding Federal match). The current HCBS waiver pre-print used by Stated to apply for waivers contain both options. States sometimes use the second option because of the need to seek Federal waiver approval prior to the appropriation process, and sometimes the legislative appropriations are less than the amount originally anticipated. In addition, the rate of turnover and the average cost per enrollee may turn out to be different than planned, thereby affecting the total number of people who may be served.
Defs.’Opp. to Pls.’Mot. for Summ. J. [Doc. No. 147], Ex. L. Therefore, the State is required to
indicate the total number of people who may be served and this may be the lesser of that number
or the number derived from the money the legislature makes available for its waiver programs.
As Defendants pointed out in their brief in opposition to Plaintiffs’motion for summary
judgment, “the legislative prerogative to cap the program by limiting appropriations also is
embedded in state regulation . . . .” Id. In their brief, Defendants cited to New Mexico’s
Administrative Code to support their position. Title 8, Chapter 314, Part 2 addresses the
Disabled and Elderly Home and Community-Based Services Waiver. In addressing the Disabled
and Elderly Home and Community-Based Services Waiver, the code states:
The New Mexico medicaid program (Medicaid) pays for medically necessary services furnished to eligible recipients. To help Medicaid recipients receive necessary services in a cost-effective manner, the New Mexico Medical Assistance division (MAD) has obtained a waiver of certain federal regulations to provide home and community-based services waiver (HCBSW) programs to recipients as an alternative to institutionalization. See Section 2176 of the Omnibus Budget Reconciliation Act of 1981, codified at 42 C.F.R. § 441.300 Subpart G. This section [part] describes home and community-based services for recipients who are elderly or disabled, eligible providers, covered waiver services, service limitations, and general reimbursement methodology.
See N.M. ADMIN. CODE 8.314.2, Subpart § 733 (2002). The code further states, “This Medicaid
waiver covers services for a specified number of recipients who are eligible for waiver services as
8

Case 6:99-cv-00021-MV-JHG Document 254 Filed 09/07/05 Page 9 of 18
an alternative to institutionalization in a nursing facility. The program is limited to the number of federally authorized unduplicated recipient (UDRs) positions and state funding.” See N.M. ADMIN. CODE 8.314.2, Subpart § 733.4 (emphasis added).
Title 8, Chapter 314, Part 5 governs the DD Home and Community-Based Services Waiver and contains similar language:
DEVELOPMENTAL DISABILITIES HOME AND COMMUNITY-BASED SERVICES WAIVER: The New Mexico Medicaid program (Medicaid) pays for medically necessary services furnished to eligible recipients. To help New Mexico recipients receive services in a cost-effective manner, the New Mexico Medical Assistance Division (MAD) has obtained a waiver of certain federal regulations to provide Home and Community-Based Services Waiver (HCBSW) programs to recipients as an alternative to institutionalization. See Section 2176 of the Omnibus Budget Reconciliation Act of 1981, codified at 42 C.F.R. § 441.300 Subpart G. N.M. ADMIN. CODE 8.314.5.9 (2002). The code also states, “This Medicaid waiver covers the following services for a specified and limited number of waiver recipients as a cost effective alternative to institutionalization in an ICF-MR. The program is limited to the number of federally authorized unduplicated recipient (UDR) positions and program funding.” N.M. ADMIN. CODE 8.314.5.13 (2002)(emphasis added). As the Court found in its August 5, 2003 Memorandum Opinion, the evidence supports Defendants’position that §1396n(c) allows the State to restrict the number of individuals it serves and the amount of money it spends on waiver programs. If the State appropriates sufficient funds to serve the individuals indicated as Factor C, then the cap is reached. However, the cap is also reached when all appropriations are expended, even if not all the individuals indicated as Factor C are receiving waiver services. At the February 18, 2005 hearing, Defendants asserted the State had reached the numerical cap with respect to the D&E waiver but, at that time, did not know whether the State
9

Case 6:99-cv-00021-MV-JHG Document 254 Filed 09/07/05 Page 10 of 18
had reached the expenditure cap for the DD waiver. Transcript at 64. Defendants shall provide the Court with this information. Accordingly, the Court will deny Plaintiff’s Corrected Motion for Order to Show Cause at this time. B. Plaintiff’s Second Motion for Order to Show Cause
Plaintiff also claims Defendants are in contempt of the Court’s February 5, 2004 Judgment because they have failed to “spend all funds appropriated by the State Legislature for DD and D&E waiver services in the fiscal year in which the funds are appropriated.” Pl.’s Br. in Supp. of Second Mot. for Order to Show Cause at 2 (quoting February 5, 2004 Judgment). Specifically, Plaintiff contends Defendants will not spend all funds appropriated for the D&E waiver program for the fiscal year 2005 within that fiscal year.
In 2004, the New Mexico Legislature enacted the Aging and Long-Term Services Department Act which provided for the formation of a new department, the Aging and Long Term Services Department (ALTSD). Defs.’Resp., Ex. B, Parks Aff. ¶6.1 The ALTSD would be responsible for administering the D&E Waiver beginning in 2005. Id. Accordingly, the New Mexico Human Services Department (HSD) delegated the responsibility of administering the D&E waiver program to ALTSD. However, until the ALTSD was operational, the HSD/Medical Assistance Division remained responsible for the day-to-day administration of the D&E waiver program. Id. at ¶7. Secretary Designate Debbie Armstrong heads the ALTSD. The Long Term Care Division of ALTSD administers the D&E waiver program. Marise McFadden is the director of the Long Term Care Division and oversees the ALTSD’s administration of the D&E Waiver.
1 Judith Parks is the Unit Program manager of the Medical Assistance Division of the HSD.
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In addition, the New Mexico Legislature passed the General Appropriations Act of 2004, which was signed into law in March 2004. Pl.’s Mem. Br., Ex. 2, Jackson Aff. ¶5. The Act provided for a special $4.9 million appropriation to the New Mexico Department of Finance and Administration (DFA) for “direct services to increase the number of persons served by the developmental disabilities Medicaid waiver at the Department of Health and the disabled and elderly Medicaid waiver program at the Human Services Department.” Id. at ¶6. The expenditure of this special appropriation by the agencies responsible for administering the DD and D&E waiver programs was contingent on the DFA approving an “increase in services plan.” Id. at ¶8. The HSD and the Department of Health (DOH) were responsible for developing the “increase in service plan,” which the Board of Finance had to approve. Id. at ¶10. Thus, the agencies responsible for administering the DD and D&E waiver programs could not spend the money until the Board of Finance approved the “increase in service plan.” Id. Moreover, ALTSD had no budgetary authority to hire additional staff to administer the D&E Waiver until all the contingencies were met. Defs.’Resp., Ex. B, McFadden Aff. ¶6.
Plaintiff claims Defendants did not submit the increase in service plan until September 20, 2004, six months after the State Legislature appropriated the $4.9 million. Defendants’increase in service plan allocated $4.0 million to ALTSD to provide services under the D&E waiver. Pl.’s Mem. Br., Ex. 2, Jackson Aff. ¶13. The Board of Finance approved the increase in service plan on October 12, 2004. Plaintiff complains Defendants’delay in submitting the increase in services plan resulted in the $4.0 million not being available for D&E waiver services until October 2004. Id. at ¶11. This resulted in Defendants having eight months to spend $4.0 million for D&E waiver services to new recipients for the months of November 2004 through June 30, 2005.
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Case 6:99-cv-00021-MV-JHG Document 254 Filed 09/07/05 Page 12 of 18
In December 2004, ALTSD reported it had allocated 200 new slots on the D&E waiver to individuals entered on the Central Registry prior to January 1, 2001. Id. at ¶22. ALTSD sent “notices of allocation” to 200 people. By December 2004, eighty-nine (89) individuals had responded to the notices. Id. at ¶25. ALTSD’s allocation of the 200 new slots for D&E waiver services constituted the first phase of ALTSD’s plan to use the $4.0 million. Id. at ¶ 23. ALTSD also plans to allocate up to 400 more unduplicated recipient slots in the D&E waiver program on a periodic basis starting in December 2004 until June 30, 2005, the end of the fiscal year. Id.
Plaintiff claims the $4.0 million appropriated for the provision of D&E waiver services would pay the State’s share of the cost of providing waiver services to 641 new recipients for a twelve month period. Id. at ¶15. Because ALTSD did not allocate the 200 slots until October 2004, Plaintiff claims Defendants will not be able to provide waiver services to these individuals for twelve months in this fiscal year. Plaintiff contends these individuals were not receiving services on December 2004. According to Plaintiff, as of December 1, 2004, Defendants had not determined eligibility and service planning for any of the 200 people to whom Defendants sent notices of allocation. Thus, Plaintiff claims it is impossible for any of these 200 individuals to receive D&E waiver services for more than six months in the current fiscal year.
Plaintiff further claims the cost to the State for providing six months of D&E waiver services to 200 individuals is $624,000. Thus, Plaintiff argues it is impossible for ALTSD to spend the remaining $3,376 million by June 30, 2005, given the time required to determine eligibility, level of care, and develop individual service plans. Plaintiff contends that, even if Defendants immediately allocates 400 of the individual slots in this fiscal year, Defendants will only spend another $1.248 million by June 30, 2005. Hence, Plaintiff contends over $2 million in
12

Case 6:99-cv-00021-MV-JHG Document 254 Filed 09/07/05 Page 13 of 18
unspent D&E waiver appropriations will remain at the end of the fiscal year 2005. Based on these contentions, Plaintiff claims Defendants are in contempt of the Court’s Judgment, requiring them to “spend all funds appropriated by the State Legislature for DD and D&E waiver services in the fiscal year in which the funds are appropriated.” See February 5, 2004 Judgment at 2.
Defendants oppose the motion and maintain the State is in compliance with the Court’s Judgment. According to Defendants, “[t]he availability of slots in the D&E waiver is determined by Factor C in the CMS-approved waiver plan.” Defs.’Resp. at 3. For fiscal year 2005, the numerical cap in Factor C of the approved D&E waiver plan is 2400 Unduplicated Individuals or the number of individuals authorized by the State legislature for that time period, whichever is less. Defs.’Resp., Ex. A, McFadden Aff. ¶12. Defendants contend that “any individual receiving D&E services during a plan year is an ‘Unduplicated Individual.” Id. at ¶13. Defendants claim “the number of Unduplicated Individuals served during a plan year is cumulative . . . .” Defs.’ Resp. at 3. Hence, Defendants contend the number of unduplicated individuals “is the sum total of unduplicated individuals who received services at any time during the year.” Defendants claim the State already projects serving 2,523 Unduplicated Individuals in the D&E waiver for Fiscal Year 2005. Id. at ¶14. This number is more than is permitted under the State’s D&E waiver plan. Therefore, Defendants have applied for an amendment to the CMS-approved D&E waiver plan to permit the State to provide D&E waiver services up to 3,200 Unduplicated Individuals. Id.
Defendants also contend Plaintiff’s motion is based on inaccurate facts. Defendants argue that, although the 2004 Legislative Session passed the bill appropriating an additional $4.9 million for providing services to persons awaiting services under the D&E Waiver and the DD Waiver, the appropriation was contingent upon four distinct steps taking place. Id. at ¶5. First, the
13

Case 6:99-cv-00021-MV-JHG Document 254 Filed 09/07/05 Page 14 of 18
Secretaries of the DOH and HSD had to develop a plan for increasing services under both waivers. Second, the HSD and DOH had to submit that plan to the Secretary of the DFA. Third, the Board of Finance had to approve the plan. Finally, the Legislative Finance Committee also had to approve the plan. Thus, before funding would become available, Defendants had to complete all these steps. Id. Because the plan had to be approved by these independent authorities and because the D&E Waiver was transferred from HSD to ALTSD, it took time to develop an acceptable plan. Id.
Defendants also take issue with Plaintiff’s claim that HSD and DOH did not submit a plan to the DFA until September 20, 2004. Defendants assert that HSD and DOH submitted proposed budgets to DFA for the DD waiver by March 30, 2004, and for the D&E waiver by April 13, 2004. See Defs.’Resp., Ex. B, Parks Aff.¶¶ 9 and 12. DFA reviewed the proposed budgets and informed HSD that it required a narrative plan explaining how the funds would be used and proposals for improving the DD and D&E waiver programs. Id. at ¶10. HSD, DOH and ALTSD submitted a narrative plan to DFA on July 9, 2004. Id. DFA did not accept this narrative plan. Id. at ¶11. Therefore, representatives from HSD, DOH, and ALTSD met on a number of occasions to refine the plan. These agencies submitted several drafts to DFA. On September 2004, HSD, DOH, and ALTSD submitted what they believed to be an acceptable plan. DFA, the Board of Finance and the Legislative Finance Committee approved the plan on October 12, 2004. Id.
Plaintiff disagrees with Defendants’method “of counting the number of available, unduplicated recipient slots.” Pl.’s Reply at 2. Plaintiff argues “unduplicated recipient slots” are spaces in the State’s waiver program, analogous to a seat in a restaurant. Although a restaurant
14

Case 6:99-cv-00021-MV-JHG Document 254 Filed 09/07/05 Page 15 of 18
may have a cap, i.e., a limit on the number of persons it may seat at any one time, each seat may be used several times over a period of time. Id. at 4. Hence, Plaintiff contends an unduplicated recipient slot in the D&E waiver program becomes available every time a person leaves the waiver program, whether through death, hospitalization, or for some other reason.
Plaintiff is correct that the State may replace recipients who leave the program, but the State’s ability to do so is limited. Pursuant to federal regulation, the State may replace recipients as follows:
A State’s estimate of the number of individuals who may receive home and communitybased services must include those who will replace recipients who leave the program for any reason. A State may replace recipients who leave the program due to death or loss of eligibility under the State plan without regard to any federally-imposed limit on utilization, but must maintain a record of recipients replaced on this basis. 42 C.F.R. §441.305(a)(emphasis added). Therefore, the State may only replace recipients who leave the program due to death or loss of eligibility under the State plan without regard to the caps. However, people who leave the program for any other reason are subject to the CMS limit stated in the waiver. In addition, as Defendants point out, replacing recipients is permissive under federal regulation when replacing a recipient who leaves the program due to death or loss of eligibility. Defendants’s argument that the availability of slots in the D&E waiver is determined by Factor C in the CMS-approved waiver plan is supported by the language in the CMS letter approving the State’s D&E Waiver. The CMS letter states: “This approval is subject to your agreement to provide home and community-based services to no more individuals than those indicated on the estimate of Factor C in your approved per capita expenditure estimates.” Defs.’ Mem. in Supp. of Def. Governor Gary Johnson’s Mot. for Summ. J., Maruca Aff. ¶7 and Ex.C
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(emphasis added). The CMS letter is clear that the State may not serve more individuals than those indicated as Factor C in the State’s D&E Waiver renewal application. For fiscal year 2005, the numerical cap in Factor C of the approved D&E Waiver is 2400, the number of unduplicated recipients. McFadden Aff. ¶12. The D&E waiver program already projects serving 2,523 unduplicated recipients. Id.
In order to serve individuals above the 2400 cap, the State must amend the D&E Waiver. Defendants contend the State has applied for this amendment. Because the State is providing services to the maximum number of CMS-approved unduplicated recipients and, in fact, the State will exceed that number, Defendants contend the State is administering the D&E Waiver in compliance with the Court’s Judgment. The Court agrees. Although the State may replace recipients who die or lose their eligibility without regard to the caps, the State has the discretion not to do so. As the Court previously noted, the State has great discretion in developing its waiver programs. Moreover, the State has taken the required steps to create more unduplicated recipient slots to serve more individuals registered for D&E waiver services by requesting a waiver amendment.
The Court also considered the legislature’s atypical program appropriation in this case. The legislative 2004 appropriation was not made directly to the departments operating the DD and D&E waiver programs. The appropriation was made to the DFA and subject to the contingencies discussed above. Due to these contingencies and the resultant delay, the ALTSD could not begin the allocation process for D&E waiver services until October 2004. At that time, the ALTSD sent “notices of allocation” to 200 individuals entered on the Central Registry prior
16

Case 6:99-cv-00021-MV-JHG Document 254 Filed 09/07/05 Page 17 of 18

to January 1, 2001.2 McFadden Aff. ¶ 9. Only eighty-nine (89) individuals responded to these

notices. Accordingly, the ALTSD sent out an additional 1,200 “notices of allocation” to potential

D&E Waiver recipients for the purpose of identifying people for further allocation. Id. at ¶11.

This was to take place by March 30, 2005. Id. This was done to achieve the anticipated

numerical cap of 3,200 unduplicated recipients requested in the State’s amendment to the D&E

Waiver. Id. at ¶14.

The Court is well aware that Defendants must work within the constraints of federal law

in providing waiver services. Defendants cannot serve more individuals than allowed by the

federal cap even if, as in this instance, the New Mexico Legislature provides funding for additional

services. However, once the legislature provides appropriations for additional waiver services,

Defendants must take the required action to ensure that more individuals receive waiver services.

Given the circumstance of the atypical program appropriation that is at issue in this case,

Defendants presented evidence showing they acted diligently in meeting the contingencies set

forth in the special appropriation and in their effort to utilize the special $4.0 million appropriation

once they met those contingencies. Based on all the evidence, the Court finds that Defendants are

serving the federally permitted number of unduplicated recipients in the D&E waiver program.

Accordingly, Plaintiff’s Second Motion for Order to Show Cause is denied.

NOW,

THEREFORE,

2 Since October 12, 2004, ALTSD took over the responsibility for administering the D&E Central Registry. McFadden Aff. ¶10. Previously, LTC Link, an independent contractor, administered the registry. Id. at ¶8. ALTSD believes in-house administration of the Central Registry will give it better control over the registry, enable it to develop new and innovative systems, improve the function and accuracy of the registry, and allow it to coordinate and provide other resources and services to individuals awaiting allocations from the D&E Waiver. Id.
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Case 6:99-cv-00021-MV-JHG Document 254 Filed 09/07/05 Page 18 of 18
IT IS HEREBY ORDERED that Plaintiff’s Corrected Motion for Order to Show Cause Why Defendants Should not be Held in Contempt of Court for Failing to Comply with This Court’s February 5, 2004 Order and Memorandum Brief in Support Thereof [Doc. No. 222], filed September 27, 2004, is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Second Motion for Order to Show Cause Why Defendants Should Not be Held in Contempt of Court for Failing to Comply With This Court’s February 5, 2004 Judgment and Memorandum Brief in Support Thereof [Doc. No. 232], filed January 13, 2005, is DENIED.

Attorneys for Plaintiffs: Duff Westbrook Maureen Sanders Nancy Koenigsberg
Attorneys for Defendants: Kurt Wihl Nathan Adams Jennifer Stone

MARTHA VAZQUEZ UNITED STATES DISTRICT JUDGE
18

 
 Case 6:99-cv-00021-MV-JHG Document 259 Filed 10/21/05 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

BEN LEWIS, AARON NORRID, BILLY JO QUISENBERRY and FRED ROMERO, by and through their legal guardian and next friend THE ARC OF NEW MEXICO, BREANNE LIDDELL, hy and through her parent and legal guardian JUDY LIDDELL, MATTHEW ALLEN, by and through his parents and legal guardians JIM and ANGELA ALLEN, {<'AY MORGAN, DEBORAH EMINGER and PROTECTION AND ADVOCACY SYSTEM, INC..

FILED
at Sa·1t3 Ft.~. ' JI'.1
OCT 2 I 20U5
MATTHEW J. DYKM/l1\ CLERK

Plaintiffs,
vs.
NEW MEXICO DEPARTMENT OF HEALTH, NEW MEXICO DEPARTMENT OF HUMAN SERVICES, J. ALEX VALDEZ, Secretary of the Department of Health and Secretary Designee of the Department of Human Services in his official capacities, and GOVERNOR GARY JOHNSON in his official capacity,
Defendant~.

No. CIV 99-0021 MV/JHG

MEMORANDUM OPINION AND ORDER THIS MATTER is before the Court on Defendants' Notice of Filing of Affidavit of Cathy Stevenson [Doc. No. 257]. filed October 3.2005. On September 7. 2005. the Court entered its Memorandum Opinion and Order [Doc. No. 254J. denying Plaintiffs Corrected Motion to Show Cause. The Court also directed Defendants to provide the Court with evidence

Case 6:99-cv-00021-MV-JHG Document 259 Filed 10/21/05 Page 2 of 4
showing the Developmental Disability Waiver Program (DD Waiver) was in compliance with the Court's February 5, 2004 Judgment. Pursuant to the Court's directive, Cathy Stevenson, Deputy Director of the Long-Term Services Division (LTSD) of the New Mexico Department of Health (DOHl, submitted an affidavit showing the DOH is administering the DD Waiver in compliance with the Court's February 5, 2004 Judgment. As Deputy Director of the LTSD, Ms. Stevenson oversees the DOH's administration of the DD Waiver, including oversight of expending the funds appropriated by the New Mexico State Legislature.
[n 2004, the Legislature appropriated an additional $4.4 million for Fiscal Year 2005 to provide services to persons awaitilrg services under the DD Waiver. Based on calculations and estimates derived from actual average budget costs for individuals served by the DD Waiver in previous years and dividing an estimate of the state portion of that cost per individual served into the Fiscal Year 2005 appropriation of $4.4 million, 333 additional unduplicated recipients were allocated into services by the end of Fiscal Year 2005 (June 30, 2005). Ms. Stevenson attests to the fact that "no funds reverted [to the General Fund] at the end of fiscal year 2005." Stevenson Aff. 'J[6.
In 2005, the Legislature appropriated an additional $2.0 million for Fiscal Year 2006 to provide services to persons awaiting services under the DD Waiver. Fiscal Year 2006 began on July [,2005. [n order to maximize the persons served hy the DD Waiver and expend all funds appropriated for Fiscal Year 2006 for the DD Waiver, LTSD looked at actual average budget costs for individuals served by the DD Waiver in previous years, just as it had done for Fiscal Year 2005, and divided the state portion of that cost per individual served into the Fiscal Year 2006 appropriation of$2 million. Using these ligures, at least 177 individuals awaiting
2

Case 6:99-cv-00021-MV-JHG Document 259 Filed 10/21/05 Page 3 of 4
services have already been allocated and moved into service or will be allocated and moved into service before the end of Fiscal Year 2006 (June 30, 2006). Defendants anticipate that no funds will revert [to the General Fund] at the end of Fiscal Year 2006. Stevenson Aft". '1[8.
Ms. Stevenson funher notes that "even though DOH has served the maximum number of individuals it can serve in FY05. with the funds appropriated by the Legislature specifically for the DD Waiver for FY05, and will continue with the maximum possible increase in persons that can be served by the legislative appropriations in FY06, DOH cannot spend all of the additional DD Waiver funds appropriated for a particular liscal year in that year." Stevenson Aff. '1[11. This is because "[e]ven though DOH was able to serve the maximum number of unduplicated individuals in FY05 that were able to be supponed by the funds appropriated for FY05, not all charges for those services were submitted by service providers within the fiscal year, much less paid in the fiscal year." [d.
The fact that DOH was unable to pay service providers for services provided in Fiscal Year 2005 in the same fiscal year does not lead to the conclusion that DOH is not in compliance with the Coun's February 5, 2004 Judgment. So long as the service is provided during the fiscal year in which the funds are appropriated, it does not matter when the service provider(s) is paid. Once the service is provided, the funds required to compensate the service provider(s) are committed in the fiscal year in which the service was provided. Based on Ms. Stevenson's affidavit, the Court finds that Defendants have shown they are in compliance with the Court's February 5, 2004 Judgment.
Dated thi~~OfOctober 2005.
3

Case 6:99-cv-00021-MV-JHG Document 259 Filed 10/21/05 Page 4 of 4
Attorneys for Plaintiff: Duff Westbrook Maureen Sanders Nancy Koenigsberg Attorneys for Defendants: Kurt Wihl Gary J. Van Luchene
4

 
 U.S. District Court District of New Mexico - Version 4.0.3 (Santa Fe) CIVIL DOCKET FOR CASE #: 6:99-cv-00021-MV-JHG

Lewis, et al v. New Mexico Dept He, et al Assigned to: District Judge Martha Vazquez Referred to: Joe H. Galvan Demand: $0
Case in other court: 00‐02154
Cause: 42:1983 Civil Rights Act

Date Filed: 01/07/1999 Date Terminated: 02/05/2004 Jury Demand: Plaintiff Nature of Suit: 444 Civil Rights: Welfare Jurisdiction: Federal Question

Plaintiff Ben Lewis

represented by Duff H. Westbrook Sanders & Westbrook, PC 102 Granite Ave NW Albuquerque, NM 87102 (505) 243‐2243 Fax: (505) 243‐2750 Email: duff.sanderswestbrook@comcast.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Aaron Norrid TERMINATED: 11/05/2002

represented by Duff H. Westbrook (See above for address) TERMINATED: 11/05/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Billy Jo Quisenberry

represented by Duff H. Westbrook (See above for address) LEAD ATTORNEY

Plaintiff Faye Morgan TERMINATED: 11/05/2002
Plaintiff Deborah Eminger TERMINATED: 11/05/2002

ATTORNEY TO BE NOTICED
represented by Michael C. Parks Senior Citizens Law Office 4317 Lead Ave SE #A Albuquerque, NM 87108 (505) 265‐2300 Fax: 265‐3600 TERMINATED: 11/05/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
V Colleen Miller Protection & Advocacy System, Inc 1720 Louisiana Blvd., NE #204 Albuquerque, NM 87110 (505) 256‐3100 Fax: 256‐3184 TERMINATED: 11/05/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael C. Parks (See above for address) TERMINATED: 11/05/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
V Colleen Miller (See above for address) TERMINATED: 11/05/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Protection & Advocacy System

represented by Jama E. Fisk NM Center on Law and Poverty 3117 Silver, SE Albuquerque, NM 87106 (505) 255‐2840 Fax: 255‐2778 TERMINATED: 04/06/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael C. Parks (See above for address) TERMINATED: 03/10/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Koenigsberg Disability Rights New Mexico 1720 Louisiana Blvd., NE #204 Albuquerque, NM 87110 (505) 256‐3100 Email: nkoenigsberg@drnm.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sandra L Gomez Protection and Advocacy System, Inc. 1720 Louisiana Blvd. NE Suite 204 Albuquerque, NM 87110 505‐256‐3100 Fax: 505‐256‐3184 Email: nmpagomez@hotmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
V Colleen Miller (See above for address)

TERMINATED: 03/18/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
The Arc of New Mexico As legal Guardian and next friend of Fred Romero next friend Fred Romero

represented by Duff H. Westbrook (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Judy Liddell As parent and legal guardian of Breanne Liddell TERMINATED: 01/29/2003 next friend Breanne Liddell

represented by Duff H. Westbrook (See above for address) TERMINATED: 01/29/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Jim Allen As parent and legal guardian of Matthew Allen TERMINATED: 01/29/2003 next friend Matthew Allen

represented by Duff H. Westbrook (See above for address) TERMINATED: 01/29/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Angela Allen As parent and legal guardian of Matthew Allen TERMINATED: 01/29/2003 next friend Matthew Allen

represented by Duff H. Westbrook (See above for address) TERMINATED: 01/29/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
J Alex Valdez Secretary of the Department of Health and Secretary Desingee of the Department of Human Services in his official capacities

represented by Barbara Glenn Momaday NM Department of Health Office of the General Counsel PO Box 26110 Santa Fe, NM 87502‐6110 (505) 827‐2997 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer L. Stone Rodey Law Firm P.O. Box 1888 201 Third Street NW Suite 2200 Albuquerque, NM 87102 (505) 765‐5900 Fax: (505) 768‐7395 Email: jstone@rodey.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kurt Wihl P.O. Box AA Albuquerque, NM 87103 (505) 346‐46464 Fax: (505) 346‐1370 Email: kw@keleher‐law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robyn B. Hoffman French & Associates, PC 500 Marquette Avenue NW #500 Albuquerque, NM 87102 505‐843‐7075 Fax: 505‐243‐3482

Defendant
Governor Gary Johnson in his official capacity

Email: rhoffman@frenchlawpc.com TERMINATED: 01/02/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rumaldo R Armijo United States Attorney's Office District of New Mexico P.O. Box 607 Albuquerque, NM 87103 (505) 346‐7274 Fax: (505) 346‐7296 Email: rumaldo.armijo@usdoj.gov TERMINATED: 02/20/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan Sullivan NM Department of Health Office of General Counsel PO Box 26110 Santa Fe, NM 87502‐6110 (505) 827‐2997 Fax: 827‐2930 TERMINATED: 04/01/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Barbara Glenn Momaday (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles A. Pharris Keleher & McLeod PO Drawer AA Albuquerque, NM 87103 (505) 346‐4646 Email: cap@keleher‐law.com

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gary J. Van Luchene Keleher & McLeod, PA PO Box AA Albuquerque, NM 87103 505‐346‐4646 Fax: 505‐346‐1370 Email: gvl@keleher‐law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer L. Stone (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kurt Wihl (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Margaret E. Davidson Keleher & McLeod PO Drawer AA Albuquerque, NM 87103 (505) 346‐4646 Fax: 346‐1370 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robyn B. Hoffman (See above for address) TERMINATED: 01/02/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rumaldo R Armijo (See above for address) TERMINATED: 02/20/2004

Defendant
Department of Health State of New Mexico

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan Sullivan (See above for address) TERMINATED: 04/01/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Barbara Glenn Momaday (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer L. Stone (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kurt Wihl (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robyn B. Hoffman (See above for address) TERMINATED: 01/02/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rumaldo R Armijo (See above for address) TERMINATED: 02/20/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan Sullivan (See above for address) TERMINATED: 04/01/2005

Defendant
Department of Human Services State of New Mexico

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Barbara Glenn Momaday (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer L. Stone (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kurt Wihl (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nathan A Adams NM Human Services Department Office of General Counsel PO Box 2348 Santa Fe, NM 87504 (505) 827‐7701 Fax: 827‐7729 Email: nathan.adams@state.nm.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul R Ritzma 2009 S. Pacheco P.O. Box 2348 Santa Fe, nm 87504‐2348 505 827‐7701 Email: paul.ritzma@state.nm.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robyn B. Hoffman

(See above for address) TERMINATED: 01/02/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rumaldo R Armijo (See above for address) TERMINATED: 02/20/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan Sullivan (See above for address) TERMINATED: 04/01/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed

# Docket Text

01/07/1999

1 COMPLAINT w/jury demand ( 4 Summons(es) issued) (referred to Magistrate Judge Leslie C. Smith ) (mjr) (Entered: 01/08/1999)

01/08/1999

FILING FEE PAID: on 1/7/99 in the amount of $150.00, receipt #: 113330. (mjr) (Entered: 01/08/1999)

01/15/1999

2 RETURN OF SERVICE of s/c executed upon defendant New Mexico Dept of Human Services on 1/12/99 (bap) (Entered: 01/20/1999)

01/15/1999

3 RETURN OF SERVICE of s/c executed upon defendant New Mexico Dept Health on 1/12/99 (bap) (Entered: 01/20/1999)

01/15/1999

4 RETURN OF SERVICE of s/c executed upon defendant J Alex Valdez on 1/12/99 (bap) (Entered: 01/20/1999)

01/15/1999

5 RETURN OF SERVICE of s/c executed upon defendant Gary Johnson on 1/12/99 (bap) (Entered: 01/20/1999)

01/27/1999

6 MOTION by State of NM defts to extend time until 4/2/99 within which to answer (former employee) Modified on 02/01/1999 (Entered: 02/01/1999)

01/27/1999

7 MEMORANDUM (Brief) by defts in support of motion to extend time until 4/2/99 within which to answer [6‐1] (former employee) (Entered: 02/01/1999)

02/02/1999

8 RESPONSE by plaintiffs in opposition to motion to extend time until 4/2/99 within which to answer [6‐1] (dmw) (Entered: 02/03/1999)

02/05/1999

9 REPLY by State of NM defts to response to motion to extend time until 4/2/99 within which to answer [6‐1] (former employee) (Entered: 02/05/1999)

02/16/1999

10 ORDER by Judge Martha Vazquez granting defts' motion to extend time until 4/2/99 within which to answer [6‐1] (cc: all counsel) (former employee) (Entered: 02/16/1999)

05/03/1999

11 AMENDED COMPLAINT by pltf for violation of civil rights and injunctive relief [1‐ 1] (rd) (Entered: 05/10/1999)

06/14/1999

12 MOTION by deft Gary Johnson to dismiss action against deft for failure to state a claim upon which relief may be granted (rd) (Entered: 06/14/1999)

06/14/1999

13 MEMORANDUM by deft Gary Johnson in support of motion to dismiss action against deft for failure to state a claim upon which relief may be granted [12‐1] (rd) (Entered: 06/14/1999)

06/14/1999

14 RESPONSE by pltfs to deft Johnson's motion to dismiss action against deft for failure to state a claim upon which relief may be granted [12‐1] (rd) (Entered: 06/14/1999)

06/14/1999

15 REPLY by deft Gary Johnson to pltfs' response to motion to dismiss action against deft for failure to state a claim upon which relief may be granted [12‐1] (rd) (Entered: 06/14/1999)

06/14/1999

16 MOTION by defendants for reassignment to Judge Parker (dmw) (Entered: 06/15/1999)

06/14/1999 17 MEMORANDUM by defendants in support of motion for reassignment to Judge

Parker [16‐1] (dmw) (Entered: 06/15/1999)

06/14/1999

18 RESPONSE by plaintiffs to motion for reassignment to Judge Parker [16‐1] (dmw) (Entered: 06/15/1999)

06/14/1999

19 REPLY by defendants in support of motion for reassignment to Judge Parker [16‐ 1] (dmw) (Entered: 06/15/1999)

06/14/1999

20 MOTION by defendants to dismiss pursuant to Rule 12(b)(6) (dmw) (Entered: 06/15/1999)

06/14/1999

21 MEMORANDUM by defendants in support of motion to dismiss pursuant to Rule 12(b)(6) [20‐1] (dmw) (Entered: 06/15/1999)

06/14/1999

22 ERRATA by defendants to memorandum in support of motion to dismiss pursuant to Rule 12(b)(6) [21‐1] (dmw) (Entered: 06/15/1999)

06/14/1999

23 RESPONSE by plaintiffs in opposition to motion to dismiss pursuant to Rule 12(b)(6) [20‐1] (dmw) (Entered: 06/15/1999)

06/14/1999

24 REPLY by defendants in support of motion to dismiss pursuant to Rule 12(b)(6) [20‐1] (dmw) (Entered: 06/15/1999)

06/14/1999

25 MOTION by defendants to dismiss based on sovereign immunity (dmw) (Entered: 06/15/1999)

06/14/1999

26 MEMORANDUM by defendants in support of motion to dismiss based on sovereign immunity [25‐1] (dmw) (Entered: 06/15/1999)

06/14/1999

27 RESPONSE by plaintiffs in opposition to motion to dismiss based on sovereign immunity [25‐1] (dmw) (Entered: 06/15/1999)

06/14/1999

28 REPLY by defendants in support of motion to dismiss based on sovereign immunity [25‐1] (dmw) (Entered: 06/15/1999)

06/17/1999

29 MINUTE ORDER: Case referred to Chief Magistrate William Deaton (cc: all counsel) (rg) (Entered: 06/18/1999)

06/21/1999

30 NOTICE by pltfs of Supplemental Authority re response in opposition to defts' motion to dismiss deft Governor Johnson (rd) (Entered: 06/22/1999)

06/22/1999

31 INITIAL SCHEDULING ORDER by Chief Magistrate William Deaton Rule 16 scheduling conference set for 8/3/99 at 11:00 am in Albuquerque, NM; Provisional Discovery Plan & IPTR due by 7/26/99 (cc: all counsel, electronically) (rd) (Entered: 06/23/1999)

07/02/1999

32 NOTICE OF SUPPLEMENTAL AUTHORITY by defts relevant to pending motions [12‐1], [25‐1], [20‐1], [16‐1] (jrm) (Entered: 07/02/1999)

07/28/1999 33 PROVISIONAL DISCOVERY PLAN by parties (vv) (Entered: 07/29/1999)

08/02/1999

34 CERTIFICATE of Service by plaintiffs of Rule 26 disclosures, mailed to counsel of record on 07/30/99 (bap) Modified on 08/03/1999 (Entered: 08/03/1999)

08/04/1999

35 SCHEDULING ORDER and ORDER OF STAY by Chief Magistrate William Deaton setting initial disclosure schedule; staying discovery except for initial disclosures unitl 11/1/99 and setting telephonic conference for 10/27/99 at 8:30 am to schedule pre‐trial deadlines (cc: all counsel, electronically) (rd) (Entered: 08/05/1999)

08/06/1999

36 ORDER by Judge Martha Vazquez denying defts' motion for reassignment to Judge Parker [16‐1] (cc: all counsel, electronically) (rd) (Entered: 08/06/1999)

08/19/1999 37 NOTICE by pltfs of Supplemental Authority (rd) (Entered: 08/19/1999)

09/14/1999 38 NOTICE by plaintiffs of supplemental authority (dmw) (Entered: 09/14/1999)

09/30/1999

39 UNOPPOSED MOTION by defts for Extension of time until 10/15/99 to produce initial disclosure documents (rd) (Entered: 10/01/1999)

10/05/1999

40 ORDER by Chief Magistrate William Deaton granting defts' unopposed motion for extension until 10/15/99 to produce initial disclosure documents [39‐1] (cc: all counsel) (rd) (Entered: 10/05/1999)

10/13/1999

41 NOTICE by pltfs of supplemental authority re motion to dismiss based on sovereign immunity filed on 6/14/99 (rd) (Entered: 10/15/1999)

10/28/1999

42 ORDER by Chief Magistrate William Deaton continuing order of stay to 1‐4‐ 2000; Initial Pretrial Report shall be submitted by 1‐4‐2000 (cc: all counsel*) (jrm) (Entered: 10/29/1999)

12/16/1999

43 NOTICE by plaintiffs of suggestion of death of Faye Morgan (dmw) (Entered: 12/17/1999)

01/18/2000

44 ORDER by Chief Magistrate William Deaton setting settlement conference for 10/3/00 at 1:15 pm in Albuquerque, NM (cc: all counsel*) (rd) (Entered: 01/19/2000)

01/21/2000

45 INITIAL PRE‐TRIAL REPORT by Judge Martha Vazquez and Chief Magistrate William Deaton; Discovery set for 8/30/2000; mtn filing ddl set for 11/13/2000; proposed pretrial order due 11/30/2000; pretrial conference set for 10:00 am on 1/25/2001; non‐jury trial set for 9:00 am on 2/5/2001 both in Santa Fe NM; Estimated # of Trial Days: 15; Chances of Settlement: poor (cc: all counsel) (mjr) (Entered: 01/21/2000)

01/24/2000

58 MOTION by defts for summary judgment on claims of pltfs Ben Lewis, Aaron Norrid, Fred Romero, Faye Morgan and Deborah Eminger (rd) (Entered: 03/03/2000)

02/04/2000 46 FIRST MOTION by pltfs to compel (rd) (Entered: 02/04/2000)

02/04/2000 47 RESPONSE by defts to pltfs' motion to compel [46‐1] (rd) (Entered: 02/04/2000)

02/04/2000

48 REPLY by pltfs to defts' response to motion to compel [46‐1] (rd) (Entered: 02/04/2000)

02/08/2000

70 MOTION by plaintiffs to file second amended complaint (dmw) Modified on 03/14/2000 (Entered: 03/14/2000)

02/09/2000

49 ORDER by Chief Magistrate William Deaton vacating the 10‐3‐2000 settlement conference and resetting it for 10‐12‐2000 at 9:00 am in Albuquerque (cc: all counsel*) (jrm) (Entered: 02/10/2000)

02/11/2000

66 MOTION by defendants to dismiss pltf New Mexico Protection and Advocacy System, Inc for lack of standing (jrm) (Entered: 03/14/2000)

02/18/2000

50 MEMORANDUM, OPINION, AND ORDER: by Chief Magistrate William Deaton denying in part pltfs' motion to compel [46‐1] (cc: all counsel*) (dmw) (Entered: 02/22/2000)

02/24/2000

51 ORDER by Chief Magistrate William Deaton denying portion of pltf's 1st mtn to compel dealing with memo from Rita Willis dated 10‐15‐99 [46‐1] (cc: all counsel*) (jrm) (Entered: 02/25/2000)

02/24/2000

56 CERTIFICATE of service by pltfs of pltf Billy Jo Quisenberry's 1st set of interrog(s) and request for production to counsel on 2/23/00 (rd) Modified on 02/28/2000 (Entered: 02/28/2000)

02/24/2000

57 CERTIFICATE of service by pltfs of pltf Protection & Advocacy System Inc's 1st set of interrog(s) and request for production to counsel on 2/23/00 (rd) (Entered: 02/28/2000)

02/25/2000 52 MOTION by defendants for protective order (sl) (Entered: 02/25/2000)

02/25/2000

53 MEMORANDUM by defendants in support of motion for protective order [52‐1] (sl) (Entered: 02/25/2000)

02/25/2000

54 RESPONSE by plaintiffs to defts motion for protective order [52‐1] (sl) (Entered: 02/25/2000)

02/25/2000

55 REPLY by defendants to pltfs response to motion for protective order [52‐1] (sl) (Entered: 02/25/2000)

03/02/2000

59 MEMORANDUM by defts in support of motion for summary judgment on claims of pltfs Ben Lewis, Aaron Norrid, Fred Romero, Faye Morgan and Deborah Eminger [58‐1] (rd) (Entered: 03/03/2000)

03/02/2000

60 AFFIDAVIT of Ramona Flores‐Lopez in support of defts' motion for summary judgment on claims of pltfs Ben Lewis, Aaron Fred Romero, Faye Morgan and Deborah Eminger [58‐1] (rd) (Entered: 03/03/2000)

03/02/2000

61 DECLARATION (Statement) by defts of undisputed facts in support of motion for summary judgment on claims of pltfs Ben Lewis, Aaron Norrid, Fred Romero, Faye Morgan and Deborah Eminger [58‐1] (rd) (Entered: 03/03/2000)

03/02/2000

62 RESPONSE by pltfs to defts' motion for summary judgment on claims of pltfs Ben Lewis, Aaron Norrid, Fred Romero, Faye Morgan and Deborah Eminger [58‐ 1] (rd) (Entered: 03/03/2000)

03/02/2000

63 REPLY by defts to pltfs' response to motion for summary judgment on claims of pltfs Ben Lewis, Aaron Norrid, Fred Romero, Faye Morgan and Deborah Eminger [58‐1] (rd) (Entered: 03/03/2000)

03/03/2000

64 ORDER by Chief Magistrate William Deaton denying motion for protective order [52‐1] by Department of Human, Department of Health, J Alex Valdez, Gary Johnson (cc: all counsel*) (jrm) (Entered: 03/03/2000)

03/08/2000 65 NOTICE of supplemental authority by plaintiffs (dmw) (Entered: 03/09/2000)

03/13/2000

67 MEMORANDUM brief by defendants in support of motion to dismiss pltf New Mexico Protection and Advocacy System, Inc for lack of standing [66‐1] (jrm) (Entered: 03/14/2000)

03/13/2000

68 RESPONSE in opposition by plaintiffs to motion to dismiss pltf New Mexico Protection and Advocacy System, Inc for lack of standing [66‐1] (jrm) (Entered: 03/14/2000)

03/13/2000

69 REPLY by defendants to response to motion to dismiss pltf New Mexico Protection and Advocacy System, Inc for lack of standing [66‐1] (jrm) (Entered: 03/14/2000)

03/14/2000

71 MEMORANDUM by plaintiffs in support of motion to file second amended complaint [70‐1] (dmw) (Entered: 03/14/2000)

03/14/2000

72 RESPONSE by defendants in opposition to motion to file second amended complaint [70‐1] (dmw) (Entered: 03/14/2000)

03/14/2000

73 REPLY by plaintiffs to response in opposition to motion to file second amended complaint [70‐1] (dmw) (Entered: 03/14/2000)

04/07/2000

74 CERTIFICATE of Service by defendants of response to first set of interrogatories and request for production, mailed to opposing counsel on 4/6/00 (bap) (Entered: 04/10/2000)

04/10/2000

78 MOTION by defts to stay discovery until pending dispositive motions are ruled on (rd) (Entered: 05/05/2000)

04/21/2000

75 MEMORANDUM, OPINION, AND ORDER: by Judge Martha Vazquez granting/denying in part defts motion to dismiss action against deft for failure to state a claim upon which relief may be granted [12‐1] granting/denying in part defts motion to dismiss based on sovereign immunity [25‐1], denying defts' motion to dismiss pursuant to Rule 12(b)(6) [20‐1] by Department of Human, Department of Health, J Alex Valdez, Gary Johnson (cc: all counsel*) (sl) (Entered: 04/24/2000)

04/24/2000

76 AMENDED MEMORANDUM, OPINION, AND ORDER: by Judge Martha Vazquez granting/denying in part motion to dismiss action against deft for failure to state a claim upon which relief may be granted [12‐1] denying/granting in part motion to dismiss based on sovereign immunity by Department of Human, Department of Health, J Alex Gary Johnson and denying motion to dismiss pursuant to Rule 12(b)(6) [20‐1] by Department of Human, Department of Health, J Alex Valdez, Gary Johnson (cc: all counsel*) (jrm) (Entered: 04/25/2000)

05/02/2000

77 NOTICE OF INTERLOCUTORY APPEAL by defts from Dist. Court decision [76‐1] ; Fees paid ‐ Distribution as required. (cc:all counsel) (mjr) Modified on 05/02/2000 (Entered: 05/02/2000)

05/02/2000

LETTER to USCA re; transmitting PROA in 1 volume on 5/2/00 (mjr) (Entered: 05/02/2000)

05/04/2000

79 MEMORANDUM by defts in support of motion to stay discovery until pending dispositive motions are ruled on [78‐1] (rd) (Entered: 05/05/2000)

05/04/2000

80 RESPONSE by pltfs to defts' motion to stay discovery until pending dispositive motions are ruled on [78‐1] (rd) (Entered: 05/05/2000)

05/04/2000

81 REPLY by defts to pltfs' response to motion to stay discovery until pending dispositive motions are ruled on [78‐1] (rd) (Entered: 05/05/2000)

05/05/2000

82 MOTION by defts to stay all proceedings pending appeal (rd) (Entered: 05/08/2000)

05/05/2000

83 MEMORANDUM by defts in support of motion to stay all proceedings pending appeal [82‐1] (rd) (Entered: 05/08/2000)

05/09/2000

84 RESPONSE by pltfs to defts' motion to stay all proceedings pending appeal [82‐ 1] (rd) (Entered: 05/09/2000)

05/09/2000

86 AMENDED CERTIFICATE of service by defts of motion to stay with memorandum in support all proceedings to counsel on 5/5/00 (rd) (Entered: 05/10/2000)

05/09/2000

85 MEMORANDUM, OPINION, AND ORDER: by Judge Martha Vazquez granting defts' motion to stay all proceedings pending appeal [82‐1] and denying as moot defts' motion to stay discovery [78‐1] Case stayed as to defts [85‐2] (cc: all counsel*) (rd) (Entered: 05/10/2000)

05/11/2000

ACKNOWLEDGEMENT of receipt of preliminary record in 1 Volume by USCA on 5/5/00 ‐ USCA Number: 00‐2154 (mjr) (Entered: 05/11/2000)

05/12/2000

87 TRANSCRIPT Order Form (TOF) from Appellant; transcript not necessary for this appeal (mjr) Modified on 06/01/2000 (Entered: 05/22/2000)

05/25/2000

LETTER to USCA re; record complete/trancripts not necessary (mjr) (Entered: 05/25/2000)

06/06/2000

88 MOTION by pltfs for certification of frivolousness re portion of interlocutory appeal (pr) (Entered: 06/07/2000)

06/06/2000

89 MEMORANDUM BRIEF by pltfs in support of mtn for certification of frivolousness re portion of interlocutory appeal [88‐1] (pr) (Entered: 06/07/2000)

06/06/2000

90 RESPONSE by defts to motion for certification of frivolousness re portion of interlocutory appeal [88‐1] (pr) (Entered: 06/07/2000)

06/06/2000

91 REPLY by pltfs to defts' response to mtn for certification of frivolousness re portion of interlocutory appeal [88‐1] (pr) (Entered: 06/07/2000)

10/11/2000

92 ORDER sua sponte by Chief Magistrate William Deaton that the settlement conference set for 10/12/00 is VACATED (cc: all counsel*) (kd) (Entered:

10/11/2000)

03/01/2001

93 MEMORANDUM, OPINION, AND ORDER: by District Judge Martha Vazquez denying pltfs' motion for certification of frivolousness re portion of interlocutory appeal [88‐1] (cc: all counsel*) (rd) (Entered: 03/01/2001)

04/19/2001

94 NOTICE by pltfs of change of address for attys Duff Westbrook and Maureen Sanders (kd) (Entered: 04/20/2001)

09/07/2001

95 ORDER by Chief Magistrate William Deaton Status hearing set on 10/1/01 @ 10:00 am (cc: all counsel*) (dmw) (Entered: 09/10/2001)

09/10/2001

96 COPY of judgment from USCA affirming the decision of the District Court; the USCA declines to exercise pendent appellate jurisdiction over the remaining portions of the USDC's order [77‐1] (mjr) (Entered: 09/10/2001)

09/12/2001

97 ORDER by Chief Magistrate William Deaton Status conference reset for 10/9/01 at 10:00 am (cc: all counsel* ) (sl) (Entered: 09/17/2001)

09/28/2001 98 ANSWER by defts to amended complaint [11‐1] (vv) (Entered: 10/01/2001)

10/15/2001 100 ORDER by Chief Magistrate William Deaton setting settlement conference for 4/25/02 at 2:00 pm (cc: all counsel*) (sl) (Entered: 10/16/2001)

10/15/2001

99 ORDER by Chief Magistrate William Deaton setting pre‐trial deadlines Discovery cutoff 5/07/02 ; Motion Filing cutoff 7/22/02 ; Pretrial order ddl 8/09/02 (cc: all counsel*) (jrm) (Entered: 10/16/2001)

11/06/2001 101 NOTICE by pltf of supplemental authority relevant to pltf's response in opposition to defts' mtn for sum/jgm (vv) (Entered: 11/08/2001)

11/09/2001

102 SUPPLEMENTAL brief & authority in opposition to deft's motion to dismiss pltf New Mexico Protection and Advocacy System, Inc for lack of standing [66‐1] (vv) (Entered: 11/13/2001)

11/09/2001 103 SUPPLEMENTAL brief by deft re motion to dismiss pltf New Mexico Protection and Advocacy System, Inc for lack of standing [66‐1] (vv) (Entered: 11/13/2001)

11/09/2001

104 SUPPLEMENTAL brief by defts re motion for summary judgment on claims of pltfs Ben Lewis, Aaron Norrid, Fred Romero, Faye Morgan and Deborah Eminger [58‐1] (vv) (Entered: 11/13/2001)

11/27/2001 105 MOTION by plaintiffs to substitute second amended complaint (dmw) (Entered: 11/28/2001)

12/03/2001 106 CERTIFICATE of service by deft of 1st supplemental responses to 1st set of interrogatories to counsel on 11/30/01 (vv) (Entered: 12/03/2001)

02/04/2002 107 CERTIFICATE of service by defts of 1st set of interrogatories, requests for production to counsel on 2/4/02 (vv) (Entered: 02/05/2002)

03/01/2002 108 CERTIFICATE of service by defts of 2nd supplemental responses to 1st set of interrogatories to counsel on 2/28/02 (vv) (Entered: 03/01/2002)

03/07/2002 109 NOTICE by pltf The Arc of New Mexico of suggestion of death of Fred Romero (vv) (Entered: 03/07/2002)

03/11/2002 110 CERTIFICATE by plaintiffs of service of discovery to counsel on 3/11/02 (eg) (Entered: 03/12/2002)

03/13/2002 111 CERTIFICATE by plaintiffs of service of 1st request for production to counsel on 3/13/02 (eg) (Entered: 03/18/2002)

03/20/2002 112 CERTIFICATE by plaintiffs of service of answers & objections to 1st set of interrogs to counsel on 3/18/02 (eg) (Entered: 03/21/2002)

03/20/2002 113 CERTIFICATE by plaintiffs of service of 1st set of request for admissions to counsel on 3/18/02 (eg) (Entered: 03/21/2002)

04/01/2002 114 UNOPPOSED MOTION by defts to extend time to file motions to compel until 4/8/02 (vv) Modified on 04/10/2002 (Entered: 04/02/2002)

04/02/2002

115 ORDER by Chief Magistrate William Deaton granting deft's motion to extend time to file motions to compel until 4/8/02 [114‐1] (cc: all counsel) (vv) (Entered: 04/02/2002)

04/03/2002 116 CERTIFICATE of service by pltf of 2nd request for production to counsel on 3/26/02 (vv) (Entered: 04/03/2002)

04/09/2002 117 UNOPPOSED MOTION by defts to extend time to serve expert disclosures and reports until 4/15/02 (vv) (Entered: 04/09/2002)

04/11/2002

118 ORDER by Chief Magistrate William Deaton granting deft's motion to extend time to serve expert disclosures and reports until 4/15/02 [117‐1] (cc: all counsel) (vv) (Entered: 04/11/2002)

04/15/2002 119 CERTIFICATE by defendants of service of discovery to counsel on 4/15/02 (eg) (Entered: 04/16/2002)

04/22/2002 120 CERTIFICATE by defendants of service of discovery to counsel on 4/22/02 (eg) (Entered: 04/23/2002)

04/29/2002 121 CERTIFICATE of service by defts of response to 2nd request for production to counsel on 4/29/02 (vv) (Entered: 04/30/2002)

05/02/2002

122 ORDER by Chief Magistrate William Deaton vacating 4/25/02 settlement conference and resetting for 7/31/02 at 2:00 pm (cc: all counsel*) (vv) (Entered: 05/02/2002)

05/02/2002

123 CERTIFICATE of service by defts of motion for protective order and to quash notice of deposition with supporting memorandum to counsel on 5/2/02 (vv) (Entered: 05/03/2002)

05/02/2002 124 NOTICE by defts of non‐appearance by deft Governor Gary Johnson to appear at deposition for 5/7/02 (vv) (Entered: 05/03/2002)

05/08/2002 125 JOINT MOTION to extend deadlines for deposition discovery & for filing of motion packages & pretrial order (vv) (Entered: 05/08/2002)

05/09/2002

126 ORDER by Chief Magistrate William Deaton granting joint motion to extend deadlines [125‐1] Motion Filing cutoff 8/9/02; Pretrial order ddl 8/23/02 (cc: all counsel) (vv) Modified on 05/15/2002 (Entered: 05/09/2002)

05/14/2002 127 CERTIFICATE by defendants of service of discovery to counsel on 5/14/02 (ed)

(Entered: 05/20/2002)

06/26/2002 128 JOINT MOTION for extension of time to conduct depositions until 7/31/02 (vv) (Entered: 06/27/2002)

06/27/2002

129 ORDER by Chief Magistrate William Deaton granting joint motion for extension of time to conduct depositions until 7/31/02 [128‐1] (cc: all counsel) (vv) (Entered: 06/27/2002)

07/05/2002 130 ORDER by Chief Magistrate William Deaton resetting settlement conference on 8/8/02 @ 2:00 pm (cc: all counsel*) (dmw) (Entered: 07/05/2002)

07/09/2002 131 MOTION by plaintiffs in limine prohibiting Charles Millian from testifying as an "expert" on behalf of defts (vv) (Entered: 07/09/2002)

07/09/2002

132 MEMORANDUM by plaintiff in support of motion in limine prohibiting Charles Millian from testifying as an "expert" on behalf of defts [131‐1] (vv) (Entered: 07/09/2002)

07/10/2002 133 MOTION by plaintiffs for summary judgment on Counts I and II of amended complaint (vv) (Entered: 07/10/2002)

07/15/2002 134 MOTION by defts to strike all claims seeking class action‐like relief (vv) (Entered: 07/15/2002)

07/15/2002 135 MEMORANDUM by defendant in support of motion to strike all claims seeking class action‐like relief [134‐1] (vv) (Entered: 07/15/2002)

07/15/2002 136 MOTION by deft Gary Johnson for summary judgment on grounds of legislative immunity (vv) (Entered: 07/16/2002)

07/15/2002 137 MEMORANDUM by defendant Gary Johnson in support of motion for summary judgment on grounds of legislative immunity [136‐1] (vv) (Entered: 07/16/2002)

07/15/2002 138 AFFIDAVIT of Robert T Maruca regarding motion for summary judgment on grounds of legislative immunity [136‐1] (vv) (Entered: 07/16/2002)

07/15/2002 139 AFFIDAVIT of David E McCumber regarding motion for summary judgment on grounds of legislative immunity [136‐1] (vv) (Entered: 07/16/2002)

07/15/2002 140 AFFIDAVIT of Ramona Flores‐Lopez regarding motion for summary judgment on grounds of legislative immunity [136‐1] (vv) (Entered: 07/16/2002)

07/15/2002

141 CERTIFICATE of service by deft Gary Johnson of affidavits of Ramona Flores‐ Lopez, Robert T Maruca, David E McCumber to counsel on 7/15/02 (vv) (Entered: 07/16/2002)

07/16/2002

143 CERTIFICATE by defendant Gary Johnson of service of motion for summary judgment on grounds of legislative immunity, memorandum in support & affidavits of Ramona Flores‐Lopez & Robert T. Maruca to counsel on 7/15/02 (ed) (Entered: 07/17/2002)

07/16/2002 144 CERTIFICATE by defendants of service of motion to strike all claims seeking class action like relief to counsel on 7/15/02 (ed) (Entered: 07/17/2002)

07/17/2002

142 SECOND AMENDED CERTIFICATE by defendants of service of motion to strike all claims seeking class action like relief to counsel on 7/16/02 (ed) (Entered: 07/17/2002)

07/24/2002 145 RESPONSE by deft to motion in limine prohibiting Charles Millian from testifying as an "expert" on behalf of defts [131‐1] (vv) (Entered: 07/24/2002)

07/24/2002

146 UNOPPOSED MOTION by defts to exceed page limitation on exhibits in support of brief in opposition to pltfs' mtn for sum/jgm (vv) Modified on 08/19/2002 (Entered: 07/24/2002)

07/24/2002 147 RESPONSE by defendant to motion for summary judgment on Counts I and II of amended complaint [133‐1] (vv) (Entered: 07/24/2002)

07/29/2002 148 RESPONSE IN OPPOSITION by pltfs to defts' motion to strike all claims seeking class action‐like relief [134‐1] (ild) (Entered: 07/30/2002)

07/30/2002 150 RESPONSE IN OPPOSITION by pltfs to deft Gary Johnson's motion for summary judgment on grounds of legislative immunity [136‐1] (ild) (Entered: 07/31/2002)

07/31/2002

149 ORDER by Magistrate Judge Don J. Svet granting defts' unopposed motion to exceed page limitation of their 31 page response w/249 page exhibits to pltfs' motion for summary judgment [146‐1] (cc: all counsel) (ild) (Entered: 07/31/2002)

08/08/2002

SETTLEMENT CONFERENCE held before Chief Magistrate Judge Deaton (td) (Entered: 08/09/2002)

08/09/2002 151 REPLY brief in support of pltfs' motion for summary judgment on Counts I and II of amended complaint [133‐1] (td) (Entered: 08/09/2002)

08/09/2002 152 REPLY by deft Gary Johnson in support of motion for summary judgment on grounds of legislative immunity [136‐1] (dmw) (Entered: 08/12/2002)

08/09/2002 153 NOTICE of completion of briefing of motion for summary judgment on grounds of legislative immunity by deft Gary Johnson (dmw) (Entered: 08/12/2002)

08/09/2002 154 REPLY by pltfs to response to motion in limine prohibiting Charles Millian from testifying as an "expert" on behalf of defts [131‐1] (dmw) (Entered: 08/12/2002)

08/09/2002 155 NOTICE of completion of briefing on motion in limine by pltfs (dmw) (Entered: 08/12/2002)

08/09/2002 156 REPLY by defts in support of motion to strike all claims seeking class action‐like relief [134‐1] (dmw) (Entered: 08/12/2002)

08/09/2002 157 NOTICE of completion of briefing of motion to strike all claims seeking class action‐like relief by defts (dmw) (Entered: 08/12/2002)

08/12/2002 158 NOTICE of Completion by pltfs of its motion for summary judgment on counts I & II filed 7/10/02 (ild) (Entered: 08/13/2002)

08/20/2002 159 MOTION by pltfs to strike affidavits supporting defts' opposition to pltfs' mtn for sum/jgm (vv) (Entered: 08/20/2002)

08/20/2002 160 MEMORANDUM by plaintiff in support of motion to strike affidavits supporting defts' opposition to pltfs' mtn for sum/jgm [159‐1] (vv) (Entered: 08/20/2002)

08/22/2002 161 JOINT MOTION to extend time to submit joint pretrial order to court until 8/30/02 (vv) (Entered: 08/23/2002)

08/23/2002

162 ORDER by Chief Magistrate William Deaton granting joint motion to extend time to submit joint pretrial order to court until 8/30/02 [161‐1] (cc: all counsel) (vv) (Entered: 08/23/2002)

08/27/2002 163 MOTION by deft Gary Johnson for protective order and to quash notice of deposition of Governor Johnson (vv) (Entered: 08/27/2002)

08/27/2002

164 MEMORANDUM by deft Gary Johnson in support of motion for protective order [163‐1] & to quash notice of deposition of Governor Johnson [163‐2] (vv) (Entered: 08/27/2002)

08/27/2002

165 NOTICE of completion by defts of briefing of mtn for protective order and to quash notice of deposition to Governor Johnson [163‐1] (vv) (Entered: 08/28/2002)

08/30/2002 166 STIPULATION withdrawing pltf's motion for protective order [163‐1] & to quash notice of deposition of Governor Johnson [163‐2] (vv) (Entered: 09/03/2002)

09/03/2002 167 NOTICE of citation to pltf's reply brief in support of summary judgment by pltf (vv) (Entered: 09/04/2002)

09/06/2002 168 RESPONSE by defts to motion to strike affidavits supporting defts' opposition to pltfs' mtn for sum/jgm [159‐1] (vv) (Entered: 09/06/2002)

09/18/2002

169 UNOPPOSED MOTION by pltfs to exceed page limitation on pltfs' reply to defts' response in opposition to pltfs' mtn to strike affidavits supporting defts' opposition to pltfs' mtn for sum/jgm (vv) (Entered: 09/18/2002)

09/20/2002

170 ORDER by Chief Magistrate William Deaton granting pltf's motion to exceed page limitation on pltfs' reply to defts' response in opposition to pltfs' mtn to strike affidavits supporting defts' opposition to pltfs' mtn for sum/jgm [169‐1] (cc: all counsel) (vv) (Entered: 09/20/2002)

09/20/2002 171 REPLY by pltfs to response to motion to strike affidavits supporting defts' opposition to pltfs' mtn for sum/jgm [159‐1] (vv) (Entered: 09/23/2002)

09/20/2002 172 NOTICE of completion by pltfs of mtn to strike affidavits supporting defts' opposition to pltfs' mtn for sum/jgm [159‐1] (vv) (Entered: 09/23/2002)

09/25/2002 173 MINUTE ORDER: Case referred from Magistrate Judge Deaton to Magistrate Judge Joe H. Galvan (cc: all counsel*) (vv) (Entered: 09/25/2002)

10/08/2002 174 PRE‐TRIAL ORDER by District Judge Martha Vazquez : (cc: all counsel) (mjr) (Entered: 10/08/2002)

11/05/2002

175 MEMORANDUM, OPINION, AND ORDER: by District Judge Martha Vazquez granting parties motion to substitute second amended complaint [105‐1], denying deft's motion to dismiss pltf New Protection and Advocacy System, Inc [66‐1] granting pltf's motion to file second complaint [70‐1], granting deft's motion for summary judgment on claims of pltfs Ben Lewis, Aaron Norrid, Fred Romero, Faye Morgan and Deborah Eminger [58‐1] (cc: all counsel*) (vv) (Entered: 11/06/2002)

11/05/2002

176 PARTIAL JUDGMENT: by District Judge Martha Vazquez granting deft's motion for summary judgment [58‐1] dismissing party Aaron Norrid, Faye Morgan, Deborah Eminger (cc: all counsel*) (vv) (Entered: 11/06/2002)

01/02/2003 177 SUBSTITUTION OF COUNSEL: terminating attorney Robyn B. Hoffman for defts and substituting attorney Susan Sullivan (mjr) (Entered: 01/06/2003)

01/03/2003 178 NOTICE by plaintiff of not intending to file 2nd amended complaint at this time (vv) (Entered: 01/06/2003)

01/14/2003

179 JOINT MOTION by the parties to dismiss claims of pltfs Breanne Liddell & Matthew Allen & for entry of partial judgment with respect to their claims (td) (Entered: 01/16/2003)

01/29/2003

180 ORDER by District Judge Martha Vazquez granting the joint motion to dismiss claims of pltfs Breanne Liddell & Matthew Allen [179‐1] and granting motion for entry of partial judgment respect to their claims [179‐2] dismissing pltfs Allen and Liddell (cc: all counsel) (mjr) (Entered: 01/29/2003)

01/30/2003 181 PARTIAL JUDGMENT: by District Judge Martha Vazquez; it is ordered that judgment is entered in favor of defts on the claims of pltfs Liddell and Allen (cc:

all counsel) (mjr) (Entered: 01/30/2003)

02/19/2003 182 AMENDED ENTRY OF APPEARANCE for defendants by Barbara Glenn Momaday as co‐counsel (vv) (Entered: 02/19/2003)

03/10/2003 183 NOTICE by plaintiff of withdrawal of Michael C Parks as counsel (vv) (Entered: 03/11/2003)

03/13/2003 184 NOTICE of hearing Status hearing set for 3/20/03 at 1:30 pm before Magistrate Judge Galvan in Albuquerque, NM (cc: all counsel*) (vv) (Entered: 03/13/2003)

03/18/2003 185 NOTICE by plaintiff of withdrawal of counsel (vv) (Entered: 03/18/2003)

03/24/2003 186 ENTRY OF APPEARANCE for plaintiff Protection & Advocacy System by Sandra L Gomez (vv) (Entered: 03/24/2003)

03/24/2003 187 ENTRY OF APPEARANCE for plaintiff Protection & Advocacy System by Jama E. Fisk (vv) (Entered: 03/24/2003)

03/25/2003 188 CLERK'S MINUTES: before Magistrate Judge Joe H. Galvan Status hearing held (vv) (Entered: 03/25/2003)

08/05/2003

189 MEMORANDUM, OPINION, AND ORDER: by District Judge Martha Vazquez granting pltf's motion for summary judgment on Counts I and II of amended complaint [133‐1] & deft's mtn on grounds of legislative immunity [136‐1], denying deft's motion to strike all claims seeking class action‐like relief [134‐1] denying motion to strike affidavits supporting defts' opposition to pltfs' mtn for sum/jgm [159‐1] by Aaron Norrid, Billy Jo Quisenberry, Faye Morgan, Deborah Eminger (cc: all counsel*) (PUBLISHED) (vv) Modified on 08/07/2003 (Entered: 08/05/2003)

08/18/2003 190 NOTICE of hearing by Magistrate Judge Galvan for 8/22/03 at 10:00 am in Albuquerque, NM (cc: all counsel*) (vv) (Entered: 08/18/2003)

08/27/2003 191 CLERK'S MINUTES: before Magistrate Judge Joe H. Galvan re status conference (vv) (Entered: 08/27/2003)

09/15/2003 192 STIPULATED ORDER by Magistrate Judge Karen B. Molzen; pltf's permanent

injunction, supporting memorandum & proposed judgment due on 9/17/03; & defts reply memorandum due on 11/3/03 (cc: all counsel) (yc) Modified on 09/24/2003 (Entered: 09/15/2003)

09/17/2003 193 MOTION by plaintiff for order for entry of judgment (vv) (Entered: 09/18/2003)

09/17/2003

194 MEMORANDUM by plaintiff in support of motion for order for entry of judgment [193‐1] (vv) (Entered: 09/18/2003)

10/17/2003 195 RESPONSE by defendant to motion for order for entry of judgment [193‐1] (vv) (Entered: 10/20/2003)

11/03/2003 196 UNOPPOSED MOTION by plaintiff to exceed page limitation on pltfs' reply to mtn for entry of judgment (vv) (Entered: 11/03/2003)

11/05/2003

197 ORDER by Magistrate Judge Joe H. Galvan granting pltf's motion to exceed page limitation on pltfs' reply to mtn for entry of judgment [196‐1] (cc: all counsel*) (vv) (Entered: 11/05/2003)

11/06/2003 198 REPLY by plaintiff to response to motion for order for entry of judgment [193‐1] (vv) (Entered: 11/06/2003)

11/19/2003 199 NOTICE by plaintiffs of completion of briefing of mtn for order for entry of judgment (vv) (Entered: 11/20/2003)

02/05/2004

200 JUDGMENT: by Chief Judge Martha Vazquez; see order for specifics; dismissing case and dismissing substituted deft Governor Richardson w/prejudice (cc: all counsel) (mjr) (Entered: 02/05/2004)

02/20/2004

201 SUBSTITUTION OF COUNSEL: terminating attorney Rumaldo R. Armijo for deft Department of Human and substituting attys Paul R. Ritzma & Nathan A. Adams (td) (Entered: 02/23/2004)

03/05/2004 202 MOTION by plaintiff for attorney fees & expenses (vv) (Entered: 03/05/2004)

03/05/2004 203 MEMORANDUM by plaintiff in support of motion for attorney fees & expenses [202‐1] (vv) (Entered: 03/05/2004)

03/05/2004 204 AFFIDAVIT of Maureen A Sanders (vv) (Entered: 03/05/2004)

03/05/2004 205 AFFIDAVIT of Nancy Koenigsberg (vv) (Entered: 03/05/2004)

03/05/2004 206 CERTIFICATE of service by plaintiff of affidavits of Maureen Sanders & Nancy Koenigsberg to counsel on 3/5/04 (vv) (Entered: 03/05/2004)

03/05/2004 207 BILL OF COSTS submitted by plaintiff re judgment [200‐3] in the amount of $7616.89 (vv) Modified on 03/11/2004 (Entered: 03/09/2004)

03/12/2004 208 UNOPPOSED MOTION by defendant to extend time to respond to pltfs' mtn for atty fees & expenses until 4/12/04 (vv) (Entered: 03/15/2004)

03/23/2004

TAXED COSTS for plaintiff in the amount of $ 7616.89 against defendant (cc: all counsel) (vv) (Entered: 03/23/2004)

03/25/2004

209 ORDER by Chief Judge Martha Vazquez granting defts' motion to extend time to respond to pltfs' mtn for atty fees & expenses until 4/12/04 [208‐1] (cc: all counsel) (former employee) (Entered: 03/25/2004)

03/29/2004 210 UNOPPOSED MOTION by defendant to extend time to respond to pltfs' bill of costs (vv) (Entered: 03/30/2004)

03/31/2004 211 NOTICE by plaintiff's counsel of unavailability from 6/18/04 until 7/9/04 (vv) Modified on 04/02/2004 (Entered: 03/31/2004)

04/06/2004

212 SUBSTITUTION OF COUNSEL: terminating attorney Jama E. Fisk for Protection & Advocacy System and substituting attorney Nancy Koenigsberg (vv) (Entered: 04/06/2004)

04/09/2004

213 ORDER by Chief Judge Martha Vazquez granting motion to extend time to respond to pltfs' bill of costs until 4/12/04 [210‐1] (cc: all counsel) (mjr) (Entered: 04/09/2004)

04/12/2004 214 RESPONSE by defendant to motion for attorney fees & expenses [202‐1] (vv) (Entered: 04/13/2004)

04/21/2004

215 UNOPPOSED MOTION by plaintiff to extend time until 5/7/04 to file reply to mtn for atty fees and to exceed page limitation on reply brief (vv) (Entered: 04/22/2004)

04/27/2004

216 ORDER by Chief Judge Martha Vazquez granting pltf's motion to extend time until 5/7/04 to file reply to mtn for atty fees [215‐1] and granting motion to exceed page limitation on brief [215‐2] (cc: all counsel) (mjr) (Entered: 04/27/2004)

05/07/2004 217 REPLY by plaintiff to response to motion for attorney fees & expenses [202‐1] (vv) (Entered: 05/07/2004)

05/07/2004 218 NOTICE by plaintiff of completion of briefing of mtn for atty fees & expenses (vv) (Entered: 05/07/2004)

09/15/2004 219 MOTION & MEMORANDUM by plaintiff to amend complaint (vv) (Entered: 09/15/2004)

09/15/2004

220 MOTION & MEMORANDUM by plaintiff for order to show cause why defts should be held in contempt of Court for failing to comply with Court's 2/5/04 Order (vv) (Entered: 09/15/2004)

09/27/2004 221 CORRECTED MOTION & MEMORANDUM by plaintiff to amend complaint (vv) (Entered: 09/27/2004)

09/27/2004

222 CORRECTED MOTION & MEMORANDUM by plaintiff for order to show cause why defts should not be held in contempt of court for failing to comply with 2/5/04 Order (vv) (Entered: 09/27/2004)

10/08/2004

223 UNOPPOSED MOTION by defendant to extend time to respond to pltfs' corrected mtn to amend & for Order to show cause until 10/27/04 (vv) (Entered: 10/12/2004)

10/15/2004

224 ORDER by Chief Judge Martha Vazquez granting defts' mtn to extend time to respond to pltfs' corrected mtn to amend & for Order to show cause until 10/27/04 [223‐1] (cc: all counsel) (td) (Entered: 10/15/2004)

10/27/2004 225 RESPONSE by defendant to motion to amend complaint [221‐1] (vv) (Entered:

10/27/2004)

10/27/2004

226 RESPONSE by defendant to motion for order to show cause why defts should not be held in contempt of court for failing to comply with 2/5/04 Order [222‐1] (vv) (Entered: 10/27/2004)

11/19/2004 227 REPLY by plaintiff to response to motion to amend complaint [221‐1] (vv) (Entered: 11/19/2004)

11/19/2004

228 REPLY by plaintiff to response to motion for order to show cause why defts should not be held in contempt of court for failing to comply with 2/5/04 Order [222‐1] (vv) (Entered: 11/19/2004)

11/23/2004 229 NOTICE of completion of briefing of motion for order to show cause 220 by plaintiffs (dmw) (Entered: 11/23/2004)

01/05/2005

230 MEMORANDUM, OPINION, AND ORDER: by Chief Judge Martha Vazquez granting pltf's motion for attorney fees & expenses [202‐1] as described herein (cc: all counsel*) (vv) (Entered: 01/05/2005)

01/07/2005 231 NOTICE by plaintiff of completion of briefing of mtn for leave to amend complaint (vv) (Entered: 01/07/2005)

01/13/2005

232 SECOND MOTION & MEMORANDUM by plaintiff for order to show cause why defts should not be held in contempt of Court failing to comply with Court's 2/5/04 judgment (vv) Modified on 01/19/2005 (Entered: 01/14/2005)

01/19/2005

233 MOTION by plaintiff for expedited briefing & hrg re 2nd mtn for order to show cause (vv) (Entered: 01/19/2005)

01/20/2005

234 RESPONSE in opposition by defts to motion for expedited briefing & hrg re 2nd mtn for order to show cause [233‐1] (jrm) Modified on 01/24/2005 (Entered: 01/21/2005)

01/21/2005 235 REPLY by plaintiff to response to motion for expedited briefing & hrg re 2nd mtn for order to show cause [233‐1] (vv) (Entered: 01/21/2005)

01/21/2005 236 NOTICE by plaintiff of completion of briefing of mtn for expedited hrg [233‐1]

(vv) (Entered: 01/21/2005)

01/21/2005

237 MOTION & MEMORANDUM by defendant to extend [enlarge] time to respond to pltf's 2nd mtn for order for show cause until 2/14/05 (vv) Modified on 01/26/2005 (Entered: 01/24/2005)

01/21/2005 238 MOTION by plaintiff for reconsideration of Memorandum Opinion & Order of 1/5/05 (vv) (Entered: 01/24/2005)

01/26/2005

239 RESPONSE by plaintiff to motion to extend [enlarge] time to respond to pltf's 2nd mtn for order for show cause until 2/14/05 [237‐1] (vv) (Entered: 01/26/2005)

01/27/2005

240 ORDER by Magistrate Judge Joe H. Galvan granting deft's motion to extend [enlarge] time to respond to pltf's 2nd mtn for order for show cause until 2/14/05 [237‐1] (cc: all counsel*) (vv) (Entered: 01/27/2005)

01/27/2005

241 NOTICE of hearing on pending motions [238‐1] [233‐1] [232‐1] [222‐1] [221‐1] [220‐1] [219‐1] at 10:00 am on 2/18/05 before Magistrate Judge Galvan in Albuquerque (cc: all counsel*) (vv) (Entered: 01/27/2005)

01/27/2005

242 ORDER by Magistrate Judge Joe H. Galvan denying pltf's motion for expedited briefing & hrg re 2nd mtn for order to show cause [233‐1] (cc: all counsel*) (vv) (Entered: 01/27/2005)

01/31/2005 243 AMENDED CERTIFICATE of service by plaintiff Ben Lewis on extension of time to counsel on 1/28/05 (dmw) (Entered: 02/01/2005)

02/07/2005 244 RESPONSE by defendant to motion for reconsideration of Memorandum Opinion & Order of 1/5/05 [238‐1] (vv) (Entered: 02/07/2005)

02/14/2005

245 RESPONSE by defendant to motion for order to show cause why defts should not be held in contempt of Court failing to comply with Court's 2/5/04 judgment [232‐1] (vv) (Entered: 02/15/2005)

02/24/2005

246 CLERK'S MINUTES: before Magistrate Judge Joe H. Galvan re pending motions [238‐1] [232‐1] [222‐1] [221‐1] [220‐1] [219‐1] on 2/18/05 * (vv) (Entered: 02/24/2005)

02/24/2005 247 REPLY by plaintiff to response to motion for reconsideration of Memorandum Opinion & Order of 1/5/05 [238‐1] (vv) (Entered: 02/25/2005)

02/25/2005

248 REPLY by plaintiff to response to motion for order to show cause why defts should not be held in contempt of Court failing to comply with Court's 2/5/04 judgment [232‐1] (vv) (Entered: 02/28/2005)

03/02/2005 249 ERRATA by plaintiff to reply to mtn for reconsideration [247‐1] (vv) (Entered: 03/02/2005)

03/04/2005

250 SURREPLY by defendant to response to motion for order to show cause why defts should not be held in contempt of Court failing to comply with Court's 2/5/04 judgment [232‐1] [Per 2/18/05 Clerk's Minutes] (vv) Modified on 03/11/2005 (Entered: 03/11/2005)

03/18/2005 251 NOTICE by plaintiff of completion of 2nd mtn for order to show cause (vv) Modified on 03/23/2005 (Entered: 03/21/2005)

04/01/2005

252 SUBSTITUTION OF COUNSEL & ENTRY OF APPEARANCE: terminating attorney Susan Sullivan for Department of Health, J Alex Valdez, Gary Johnson, Department of Human and substituting attorney Jennifer L. Stone (vv) (Entered: 04/01/2005)

04/12/2005 253 NOTICE by plaintiff's counsel of unavailability from 4/29‐5/27/05 (vv) (Entered: 04/12/2005)

09/07/2005

254 MEMORANDUM, OPINION, AND ORDER: by Chief Judge Martha Vazquez denying pltf's motion for order to show cause why defts should not be held in contempt of Court failing to comply with Court's 2/5/04 judgment [232‐1] & with 2/5/04 Order [222‐1] (cc: all counsel) * (vv) (Entered: 09/07/2005)

09/28/2005

255 MEMORANDUM, OPINION, AND ORDER: by Chief Judge Martha Vazquez granting/denying in part pltf's motion to amend complaint [221‐1] (cc: all counsel) * (vv) (Entered: 09/28/2005)

09/28/2005

256 MEMORANDUM, OPINION, AND ORDER: by Chief Judge Martha Vazquez denying motion for reconsideration of Memorandum Opinion & Order of 1/5/05 [238‐1] by pltf (cc: all counsel) * (vv) (Entered: 09/28/2005)

10/03/2005 257 NOTICE by defendant of filing affidavit of Cathy Stevenson (vv) (Entered: 10/04/2005)

10/04/2005

258 ORDER by Chief Judge Martha Vazquez directing the defts to provide the information requested within 10 days from entry of this Order (cc: all counsel) (yc) (Entered: 10/05/2005)

10/21/2005

259 MEMORANDUM, OPINION, AND ORDER: by Chief Judge Martha Vazquez finding that the defts' have shown they are in compliance with the Court's 2/5/04 Judgment re [257‐1] (cc: all counsel) (mjr) (Entered: 10/21/2005)

10/21/2005 260 ORDER by Chief Judge Martha Vazquez vacating the 10/3/05 order [258‐1] (cc: all counsel) (mjr) (Entered: 10/21/2005)

 
 00-2154

Page 1

TO ORDER COPIES OF ANY DOCUMENTS LISTED BELOW, CALL WESTLAW COURTEXPRESS 1-877-DOC-RETR (1-877-362-7387) (Additional Charges Apply).
For Opinion See: 261 F.3d 970

This docket is current through 12/31/2003. For an updated version of this docket, click UPDATE

Court: Case Title: Appeal From:
Date Filed:

US COURT OF APPEALS FOR THE TENTH CIRCUIT LEWIS, ET AL v. DEPT. OF HEALTH, ET AL UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO 05/08/2000 CASE INFORMATION

Case Number: Fee Status: Case Type: Case Subtype:

00-2154 PAID APPEALS CIVIL PRIVATE

Nature of Suit: Key Nature of Suit:
Name: Type: Attorney: Firm Address:
Firm Phone:
Name: Type: Attorney: Attorney: Firm Name:

3444 APPEALS (030)
NAMES
BEN LEWIS PLAINTIFF - APPELLEE DUFF H. WESTBROOK 812 MARQUETTE, NW ALBUQUERQUE, NM 87102 505-243-2243
AARON NORRID PLAINTIFF - APPELLEE V. COLLEEN MILLER MICHAEL C. PARKS PROTECTION & ADVOCACY SYSTEM

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

00-2154

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Firm Address:
Firm Phone: Attorney: Firm Name: Firm Address:
Firm Phone: Attorney: Firm Name: Firm Address:
Firm Phone: Attorney:
Name: Type: Attorney: Attorney: Attorney: Attorney: Attorney:
Name:
Type: Attorney: Attorney: Attorney: Attorney: Attorney: Attorney: Attorney:
Name:

1720 LOUISIANA, N.E. SUITE 204 ALBUQUERQE, NM 87110 505-256-3100 SANDRA L. GOMEZ PROTECTION & ADVOCACY SYSTEM 1720 LOUISIANA, N.E. SUITE 204 ALBUQUERQUE, NM 87110 505-256-3100 MAUREEN A. SANDERS SANDERS & WESTBROOK 102 GRANITE NW ALBUQUERQUE, NM 87102-2310 505-243-2243 DUFF H. WESTBROOK
BILLY JO QUISENBERRY PLAINTIFF - APPELLEE V. COLLEEN MILLER MICHAEL C. PARKS SANDRA L. GOMEZ MAUREEN A. SANDERS DUFF H. WESTBROOK
ARC OF NEW MEXICO, AS LEGAL GUARDIAN AND NEXT FRIEND OF FRED ROMERO PLAINTIFF - APPELLEE V. COLLEEN MILLER MICHAEL C. PARKS SANDRA L. GOMEZ MAUREEN A. SANDERS DUFF H. WESTBROOK V. COLLEEN MILLER MICHAEL C. PARKS
JUDY LIDDELL, AS PARENT AND LEGAL GUARDIAN OF BREANNE LIDDELL

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

00-2154

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Type: Attorney: Attorney: Attorney: Attorney: Attorney:
Name:
Type: Attorney: Attorney: Attorney:
Name:
Type: Attorney: Attorney: Attorney: Attorney: Attorney: Attorney: Attorney:
Name: Type: Attorney: Attorney: Attorney: Attorney:
Name: Type: Attorney: Attorney: Attorney:
Name:

PLAINTIFF - APPELLEE SANDRA L. GOMEZ MAUREEN A. SANDERS DUFF H. WESTBROOK V. COLLEEN MILLER MICHAEL C. PARKS
JIM ALLEN, AS PARENT AND LEGAL GUARDIAN OF MATTHEW ALLEN PLAINTIFF - APPELLEE SANDRA L. GOMEZ MAUREEN A. SANDERS DUFF H. WESTBROOK
ANGELA ALLEN, AS PARENT AND LEGAL GUARDIAN OF MATTHEW ALLEN PLAINTIFF - APPELLEE V. COLLEEN MILLER MICHAEL C. PARKS SANDRA L. GOMEZ MAUREEN A. SANDERS DUFF H. WESTBROOK V. COLLEEN MILLER MICHAEL C. PARKS
FAYE MORGAN PLAINTIFF - APPELLEE SANDRA L. GOMEZ MAUREEN A. SANDERS V. COLLEEN MILLER MICHAEL C. PARKS
DEBORAH EMINGER PLAINTIFF - APPELLEE SANDRA L. GOMEZ V. COLLEEN MILLER MICHAEL C. PARKS
PROTECTION & ADVOCACY SYSTEM

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Type: Attorney: Attorney: Attorney:
Name: Type: Attorney: Attorney: Attorney: Attorney: Attorney: Firm Name:
Firm Phone:
Name:
Type: Attorney: Attorney: Firm Name:
Firm Phone: Attorney: Attorney: Firm Name:
Firm Phone: Attorney: Attorney: Attorney: Attorney:
Name: Type:

PLAINTIFF - APPELLEE SANDRA L. GOMEZ V. COLLEEN MILLER MICHAEL C. PARKS
DEPARTMENT OF HEALTH, STATE OF NEW MEXICO DEFENDANT - APPELLANT SANDRA L. GOMEZ MARGARET E. DAVIDSON KURT WIHL CHARLES A. PHARRIS GARY JOHN VAN LUCHENE KELEHER & MCLEOD P.O. DRAWER AA ALBUQUERQUE, NM 87103 505-842-6262
J. ALEX VALDEZ, SECRETARY OF THE DEPARTMENT OF HEALTH AND SECRETARY DESIGNEE OF THE DEPARTMENT OF HUMAN SERVICES IN HIS OFFICIAL CAPACITIES DEFENDANT - APPELLANT BARBARA GREGG GLENN ROBYN B. HOFFMAN NEW MEXICO DEPARTMENT OF HEALTH GENERAL COUNSEL P.O. BOX 26110 SANTA FE, NM 87502 505-827-0002 BARBARA GREGG GLENN ROBYN B. HOFFMAN NEW MEXICO DEPARTMENT OF HEALTH GENERAL COUNSEL P.O. BOX 26110 SANTA FE, NM 87502 505-827-0002 MARGARET E. DAVIDSON KURT WIHL CHARLES A. PHARRIS GARY JOHN VAN LUCHENE
GARY JOHNSON, GOVERNOR, IN HIS OFFICIAL CAPACITY DEFENDANT - APPELLANT

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Attorney: Attorney: Attorney: Attorney: Attorney: Attorney: Attorney: Attorney: Name: Type: Attorney: Attorney: Attorney: Attorney: Attorney: Attorney: Attorney: Attorney: Attorney: Attorney:
ENTRY #: --
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BARBARA GREGG GLENN ROBYN B. HOFFMAN BARBARA GREGG GLENN ROBYN B. HOFFMAN MARGARET E. DAVIDSON KURT WIHL CHARLES A. PHARRIS GARY JOHN VAN LUCHENE
NEW MEXICO DEPARTMENT OF HUMAN SERVICES DEFENDANT - APPELLANT JOHN H. CLOUGH JOHN H. CLOUGH MARGARET E. DAVIDSON KURT WIHL CHARLES A. PHARRIS
GARY JOHN VAN LUCHENE GARY JOHN VAN LUCHENE RUMALDO R. ARMIJO JOHN H. CLOUGH ROBYN B. HOFFMAN

DOCKET PROCEEDINGS

DATE: 05/31/2002

DESCRIPTION:
[1515252] CASE FILE CLOSED. SHIPMENT TO RECORDS CENTER DUE 5/30/04 (ERB)

09/12/2001

[1446522] MANDATE RECEIPT FILED. (MAV)

09/07/2001

[1445691] MANDATE ISSUED. MANDATE RECEIPT DUE 10/9/01. (KLP)

08/16/2001

[1440050] TERMINATED ON THE MERITS AFTER ORAL HEARING; AFFIRMED; WRITTEN, SIGNED, PUBLISHED. TACHA, AUTHORING JUDGE; POLITZ; LUCERO. [00-2154] (KLP)

07/16/2001

[1430925] CASE ARGUED BY KURT WIHL FOR THE AP-

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PELLANT; MAUREEN SANDERS FOR THE APPELLEE, AND SUBMITTED TO JUDGES TACHA, POLITZ, LUCERO. (HRS)

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07/02/2001

[1427726] APPELLEE'S MOTION VOLUNTARY PARTIAL

DISMISSAL RE ADA CLAIMS SUBMITTED TO THE AR-

GUMENT PANEL. (SS)

--

07/02/2001

[1427723] APPELLEE'S MOTION [00-2154] FOR VOLUN-

TARY PARTIAL DISMISSAL (OF THEIR ADA RELATED

CLAIMS, COUNTS III& IV) FILED BY BEN LEWIS, ET AL.

ORIGINAL AND 3 COPIES. C/S: Y (SS)

--

06/13/2001

[1423491] APPELLANTS' SUPPLEMENTAL AUTHORITY

FILED BY DEPT. OF HEALTH, J. ALEX VALDEZ, GARY

JOHNSON, DEPT. OF HUMAN SER. AND SUBMITTED TO

COURT. ORIGINAL AND 7 COPIES. C/S: Y. (KLP)

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04/16/2001

[1407584] HEARING SET FOR JULY 12, 2001 SESSION, AT

SANTA FE, NEW MEXICO. (HRS)

--

03/29/2001

[1403912] ERRATA SHEET TO REPLY BRIEF OF APPEL-

LANT'S FILED BY DEPT. OF HEALTH, J. ALEX VALDEZ,

GARY JOHNSON, DEPT. OF HUMAN SER. ORIGINAL

AND 7 COPIES. C/S: Y. (JAL)

--

03/21/2001

[1402190] APPELLANTS' REPLY BRIEF FILED BY DEPT.

OF HEALTH, J. ALEX VALDEZ, GARY JOHNSON AND

DEPT. OF HUMAN SER. ORIGINAL AND 7 COPIES. C/S: Y

(AFW)

--

03/01/2001

[1396304] APPELLEES' BRIEF FILED BY BEN LEWIS,

AARON NORRID, BILLY JO QUISENBERRY, ARC OF

NEW MEXICO, JUDY LIDDELL, JIM ALLEN, ANGELA

ALLEN, FAYE MORGAN, DEBORAH EMINGER, AND

PROTECTION. ORIGINAL AND 7 COPIES. C/S: Y.

SERVED ON 2/28/01. ORAL ARGUMENT? YES. APPEL-

LANTS' OPTIONAL REPLY BRIEF DUE 3/19/01 FOR DEPT.

OF HUMAN SER., GARY JOHNSON, J. ALEX VALDEZ,

AND DEPT. OF HEALTH. (GAH)

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01/30/2001

[1388922] APPELLANT'S BRIEF FILED BY DEPT. OF

HEALTH, J. ALEX VALDEZ, GARY JOHNSON, DEPT. OF

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HUMAN SER.. ORIGINAL AND 7 COPIES. C/S: Y. SERVED ON 1/29/01. ORAL ARGUMENT? Y. APPENDIX FILED. ORIGINAL AND 1 APPENDIX COPY. APPENDIX PAGES: 475 (VOLUMES 1 AND 2). APPELLEE'S BRIEF DUE 3/5/01 FOR PROTECTION, DEBORAH EMINGER, FAYE MORGAN, ANGELA ALLEN, JIM ALLEN, JUDY LIDDELL, ARC OF NEW MEXICO, BILLY JO QUISENBERRY, AARON NORRID, AND BEN LEWIS. (JAL)

--

12/20/2000

[1380037] ORDER FILED BY PF (KTC) REFERRING OR-

DER CONSIDERING CASE FOR SUMMARY DISPOSITION

[1329272-1], REFERRING APPELLEE'S MEMO BRIEF

[1344471-1], REFERRING APPELLANT'S MEMO BRIEF

[1344474-1]. REFERRED TO PANEL ON THE MERITS. AP-

PELLANTS' BRIEF AND APPENDIX DUE 1/29/01 FOR

DEPT. OF HUMAN SER., FOR GARY JOHNSON, FOR J.

ALEX VALDEZ, AND FOR DEPT. OF HEALTH. PARTIES

SERVED BY MAIL. (GAH)

--

08/02/2000

[1344474] APPELLANTS' MEMORANDUM BRIEF FILED

BY DEPT. OF HEALTH, J. ALEX VALDEZ, GARY JOHN-

SON, AND DEPT. OF HUMAN SER. ORIGINAL AND 7

COPIES. C/S: Y. (GAH)

--

08/02/2000

[1344471] APPELLEES' MEMORANDUM BRIEF FILED BY

BEN LEWIS, AARON NORRID, BILLY JO QUISENBERRY,

ARC OF NEW MEXICO, JUDY LIDDELL, JIM ALLEN, AN-

GELA ALLEN, FAYE MORGAN, DEBORAH EMINGER,

AND PROTECTION. ORIGINAL AND 7 COPIES. C/S: Y.

(GAH)

--

06/28/2000

[1336485] ON THE COURT'S OWN MOTION AND PURSU-

ANT TO 10TH CIR. R. 33.1, ORDER FILED BY (PF) TO EX-

TEND TIME TO FILE MEMORANDUM BRIEFS UNTIL

8/2/00. [00-2154] PARTIES SERVED BY MAIL. (GAH)

--

06/14/2000

[1332842] ON THE COURT'S OWN MOTION AND PURSU-

ANT TO 10TH CIR. R. 33.1, ORDER FILED BY (PF) TO EX-

TEND TIME TO FILE MEMORANDUM BRIEFS UNTIL

7/17/00. [00-2154] PARTIES SERVED BY MAIL. (NAK)

--

06/08/2000

[1331065] NOTICE OF APPEARANCE FILED BY MAUR-

EEN A. SANDERS, DUFF H. WESTBROOK AS ATTORNEY

FOR BEN LEWIS, AARON NORRID, BILLY JO QUISEN-

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BERRY, ARC OF NEW MEXICO, JUDY LIDDELL, JIM ALLEN, ANGELA ALLEN. CERT. OF INTERESTED PARTIES (Y/N): N. (GAH)

--

06/02/2000

[1329615] ORDER FILED BY PF NOTICE OF APPEAR-

ANCE FORM DUE 6/12/00 FOR ANGELA ALLEN, JIM AL-

LEN, JUDY LIDDELL, ARC OF NEW MEXICO, BILLY JO

QUISENBERRY, AARON NORRID AND BEN LEWIS.

(ATTORNEY WESTBROOK) PARTIES SERVED BY MAIL.

(AFW)

--

06/02/2000

[1329608] NOTICE OF APPEARANCE FILED BY MICHAEL

C. PARKS AND V. COLLEEN MILLER AS ATTORNEYS

FOR BEN LEWIS, AARON NORRID, BILLY JO QUISEN-

BERRY, ARC OF NEW MEXICO, JUDY LIDDELL, JIM AL-

LEN, ANGELA ALLEN, FAYE MORGAN, DEBORAH EM-

INGER AND PROTECTION. CERT. OF INTERESTED

PARTIES (Y/N): N. (AFW)

--

06/02/2000

[1329605] NOTICE OF APPEARANCE FILED BY SANDRA

L. GOMEZ AS ATTORNEY FOR BEN LEWIS, AARON

NORRID, BILLY JO QUISENBERRY, ARC OF NEW MEX-

ICO, JUDY LIDDELL, JIM ALLEN, ANGELA ALLEN,

FAYE MORGAN, DEBORAH EMINGER AND PROTEC-

TION. CERT. OF INTERESTED PARTIES (Y/N): N. (AFW)

--

06/01/2000

[1329272] ORDER FILED BY PF (KTC) CONSIDERING

THIS CASE FOR SUMMARY DISPOSITION UNDER 10

CIR. R. 27. PARTIES' SIMULTANEOUS MEMORANDUM

BRIEFS DUE 7/3/00 FOR DEPT. OF SER., GARY JOHNSON,

J. ALEX VALDEZ, DEPT. OF HEALTH, PROTECTION, DE-

BORAH EMINGER, FAYE MORGAN, ANGELA ALLEN,

JIM ALLEN, JUDY LIDDELL, ARC OF NEW MEXICO,

BILLY JO QUISENBERRY, AARON NORRID, BEN LEWIS.

PARTIES SERVED BY MAIL. (NAK)

--

05/30/2000

[1329164] FILED NOTICE RECORD IS COMPLETE 5/25/00.

APPELLANT'S BRIEF AND APPENDIX DUE 7/5/00 FOR

DEPT. OF HUMAN SER., FOR GARY JOHNSON, FOR J.

ALEX VALDEZ, FOR DEPT. OF HEALTH. (PDW)

--

05/23/2000

[1327009] NOTICE OF APPEARANCE FILED BY JOHN H.

CLOUGH AS ATTORNEY FOR DEPT. OF HEALTH, J.

ALEX VALDEZ, GARY JOHNSON, DEPT. OF HUMAN

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SER.. CERT. OF INTERESTED PARTIES (Y/N): N. (NAK)

--

05/19/2000

[1326310] NOTICE OF APPEARANCE FILED BY BAR-

BARA GREGG GLENN AS ATTORNEY FOR DEPT. OF

HEALTH, J. ALEX VALDEZ. CERT. OF INTERESTED

PARTIES (Y/N): Y. (NAK)

--

05/18/2000

[1326280] NOTICE OF APPEARANCE FILED BY MAR-

GARET E. DAVIDSON AND GARY JOHN VAN LUCHENE

AS ATTORNEYS FOR DEPT. OF HEALTH, J. ALEX

VALDEZ, GARY JOHNSON AND DEPT. OF HUMAN SER.

CERT. OF INTERESTED PARTIES (Y/N): Y. (AFW)

--

05/18/2000

[1326274] NOTICE OF APPEARANCE FILED BY RU-

MALDO R. ARMIJO AS ATTORNEY FOR GARY JOHNSON

AND DEPT. OF HUMAN SER. CERT. OF INTERESTED

PARTIES (Y/N): Y. (AFW)

--

05/18/2000

[1326269] NOTICE OF APPEARANCE FILED BY KURT

WIHL AND CHARLES A. PHARRIS AS ATTORNEYS FOR

DEPT. OF HEALTH, J. ALEX VALDEZ, GARY JOHNSON

AND DEPT. OF HUMAN SER. CERT. OF INTERESTED

PARTIES (Y/N): Y. (AFW)

--

05/18/2000

[1326264] NOTICE OF APPEARANCE FILED BY ROBYN

B. HOFFMAN AS ATTORNEY FOR DEPT. OF HEALTH, J.

ALEX VALDEZ AND DEPT. OF HUMAN SER. CERT. OF

INTERESTED PARTIES (Y/N): Y. ATTORNEY BARBARA

GREGG GLENN TERMINATED FOR DEPT. OF HUMAN

SER., J. ALEX VALDEZ AND DEPT. OF HEALTH. (AFW)

--

05/12/2000

[1324902] NOTICE RECEIVED FROM APPELLANTS DEPT.

OF HEALTH, J. ALEX VALDEZ, GARY JOHNSON AND

DEPT. OF HUMAN SER. THAT A TRANSCRIPT IS NOT

NECESSARY THIS APPEAL. NOTICE DUE THAT RECORD

IS COMPLETE 5/22/00 FOR MARTHA VAZQUEZ. (KF)

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05/12/2000

[1324899] DOCKETING STATEMENT FILED BY DEPT. OF

HEALTH, J. ALEX VALDEZ, GARY JOHNSON AND DEPT.

OF HUMAN SER. ORIGINAL AND 4 COPIES. C/S: Y. (KF)

--

05/08/2000

[1322931] CIVIL CASE DOCKETED. PRELIMINARY RE-

CORD FILED. DATE RECEIVED: 5/5/00. TRANSCRIPT OR-

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DER FORM DUE 5/18/00 FOR KATHLEEN MARQUARDT PURSUANT TO R.42.1. DOCKETING STATEMENT DUE 5/18/00 FOR DEPT. OF HUMAN SER., FOR GARY JOHNSON, FOR J. ALEX VALDEZ, FOR DEPT. OF HEALTH. NOTICE OF APPEARANCE DUE 5/18/00 FOR DEPT. OF HUMAN SER., FOR GARY JOHNSON, FOR J. ALEX VALDEZ, FOR DEPT. OF HEALTH, FOR PROTECTION, FOR DEBORAH EMINGER, FOR FAYE MORGAN, FOR ANGELA ALLEN, FOR JIM ALLEN, FOR JUDY LIDDELL, FOR ARC OF NEW MEXICO, FOR BILLY JO QUISENBERRY, FOR AARON NORRID, FOR BEN LEWIS. (PDW)
TO ORDER COPIES OF ANY DOCUMENTS LISTED ABOVE, CALL WESTLAW COURTEXPRESS 1-877-DOC-RETR (1-877-362-7387) (Additional Charges Apply).
END OF DOCUMENT

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 PUBLISH

FILED
United States Court of Appeals Tenth Circuit
AUG 16 2001

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

PATRICK FISHER
Clerk

BEN LEWIS; AARON NORRID; BILLY JO QUISENBERRY; ARC OF NEW MEXICO, as legal guardian and next friend of Fred Romero; JUDY LIDDELL, as parent and legal guardian of Breanne Liddell; JIM ALLEN, as parent and legal guardian of Matthew Allen; ANGELA ALLEN, as parent and legal guardian of Matthew Allen; FAYE MORGAN; DEBORAH EMINGER; PROTECTION & ADVOCACY SYSTEM,
Plaintiffs - Appellees, v. NEW MEXICO DEPARTMENT OF HEALTH; NEW MEXICO DEPARTMENT OF HUMAN SERVICES; J. ALEX VALDEZ, Secretary of the Department of Health and Secretary Designee of the Department of Human Services in his official capacities; GARY JOHNSON, Governor, in his official capacity,
Defendants - Appellants.

No. 00-2154

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO (D. Ct. No. CIV-99-21-MV)

Kurt Wihl, Keleher & McLeod, P.A., Albuquerque, New Mexico (Robyn Hoffman, General Counsel, Barbara Glenn, Assistant General Counsel, Office of the General Counsel, New Mexico Department of Health, Santa Fe, New Mexico, and Charles A. Pharris and Gary J. Van Luchene, Keleher & McLeod, P.A., Albuquerque, New Mexico, with him on the briefs), for Appellant. Maureen A. Sanders, Sanders & Westbrook, P.C., Albuquerque, New Mexico (Duff Westbrook, Sanders & Westbrook, P.C., Albuquerque, New Mexico, and V. Colleen Miller, Michael C. Parks, and Sandra L. Gomez, Protection & Advocacy, Inc., Albuquerque, New Mexico, with her on the brief), for Appellee.
Before TACHA, Chief Judge, POLITZ,* and LUCERO, Circuit Judges.
TACHA, Chief Circuit Judge.
The defendants appeal the district court’s denial of their motions to dismiss based on Eleventh Amendment immunity and Federal Rule of Civil Procedure 12(b)(6). Pursuant to the collateral order doctrine, we have jurisdiction under 28 U.S.C. § 1291 to review the district court’s denial of the defendants’ motion asserting Eleventh Amendment immunity, see Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146-47 (1993), and we affirm the district court’s denial of the motion. We decline, however, to exercise pendent appellate jurisdiction over the district court’s denial of the defendants’ 12(b)(6) motions.
*Honorable Henry A. Politz, Senior Circuit Judge, United States Court of Appeals for the Fifth Circuit, sitting by designation.
-2-

I. Background Medicaid is a cooperative federal-state program under which states choosing to participate receive federal funds for state-administered Medicaid services provided they comply with the requirements of the Medicaid Act, 42 U.S.C. §§ 1396 et seq., and its implementing regulations, 42 C.F.R. §§ 430 et. seq. Under the Medicaid Act, a participating state may ask the Secretary of Health and Human Services to provide a waiver allowing the state to pay for home or community-based services as “medical assistance” under its approved Medicaid plan. 42 U.S.C. § 1396n(c). New Mexico has chosen to participate in Medicaid and has received a waiver from the Secretary allowing for the inclusion of two “waiver services” in its plan: the Developmental Disabilities Home and Community-Based Services Waiver and the Disabled and Elderly Home and Community-Based Services Waiver. In addition to an advocacy group called Protection and Advocacy, the initial plaintiffs in this case were individuals who claimed they were eligible for Medicaid services because of their physical or developmental disabilities or because of their advanced age.1 After applying for waiver services under New
1 Since the district court issued its decision, some of the individually named plaintiffs in this case have received the waiver services for which they applied. Others have unfortunately passed away. At this stage, none of these plaintiffs remains a party in this case, leaving only the advocacy group. The
(continued...) -3-

Mexico’s Medicaid plan, the plaintiffs were placed on waiting lists for as many as seven years. The plaintiffs argue that the state must provide the waiver services to which they are entitled “with reasonable promptness” as required by 42 U.S.C. § 1396a(a)(8). Alleging violations under both the Medicaid Act and the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 1201 et. seq., as well as due process violations actionable under 42 U.S.C. § 1983, the plaintiffs brought suit against two state agencies, the New Mexico Department of Health and the New Mexico Department of Human Services. In addition, the plaintiffs sued Alex Valdez in his official capacity as both Secretary of the Department of Health and Secretary-Designee of the Department of Human Services, as well as Governor Gary Johnson in his official capacity as Governor of New Mexico. The plaintiffs seek a declaration that the defendants’ current administration of the waiver services violates federal law and injunctive relief ordering the defendants to comply with the Medicaid Act by providing waiver services with “reasonable
1(...continued) defendants do not, however, raise this issue. Although we would typically consider the issue sua sponte, see Qwest Communications Int’l, Inc. v. Fed. Communications Comm’n, 240 F.3d 886, 891 (10th Cir. 2001), we decline to do so because of the procedural posture of this case. As several of our sister circuits have recognized, the issue of standing does not meet all the elements of the collateral order doctrine because it is not effectively unreviewable on appeal from a final judgment. See, e.g., Summit Med. Assocs., P.C. v. Pryor, 180 F.3d 1326, 1334 (11th Cir. 1999) (citing cases from other circuits). We therefore express no opinion concerning the advocacy group’s standing to bring this suit.
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promptness.” The plaintiffs also initially sought injunctive relief under the ADA,
requesting that the state agencies provide them with services in the most integrated setting appropriate to their needs. Since the district court issued its order, however, the plaintiffs have voluntarily dismissed their ADA claim, leaving only their § 1983 claims alleging violations of their federal rights under the Medicaid Act and the Constitution. Accordingly, the only remaining defendants are the two individuals named in their official capacities, narrowing our inquiry concerning Eleventh Amendment immunity to whether the plaintiffs’ claims fall within the Ex parte Young doctrine, which allows plaintiffs to seek prospective equitable relief for violations of federal law by state officials. We conclude Ex parte Young applies and affirm the district court’s denial of the defendants’ motion to dismiss based on Eleventh Amendment immunity.
II. Standard of Review Because an assertion of Eleventh Amendment immunity involves questions of law, we review the district court’s decision de novo. See Powder River Basin Res. Council v. Babbitt, 54 F.3d 1477, 1483 (10th Cir. 1995); see also Dang v. UNUM Life Ins. Co., 175 F.3d 1186, 1189 (10th Cir. 1999) (recognizing that appellate court reviews questions of law de novo).
III. Eleventh Amendment Immunity
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Although citizens may not generally sue states in federal court under the Eleventh Amendment, the Ex parte Young doctrine has carved out an alternative, permitting citizens to seek prospective equitable relief for violations of federal law committed by state officials in their official capacities. Ex parte Young, 209 U.S. 123, 159-60 (1908). In Elephant Butte Irrigation District of New Mexico v. Department of the Interior, 160 F.3d 602 (10th Cir. 1998), we discussed at length the Ex parte Young doctrine and the federal courts’ struggle to define it. In addition, we specifically outlined the four-part inquiry required by Supreme Court precedent, particularly Idaho v. Coeur d’Alene Tribe, 521 U.S. 261 (1997), and Florida v. Treasure Salvors, Inc., 458 U.S. 670 (1982). See Elephant Butte Irrigation Dist., 160 F.3d at 609. In order to conclude that the plaintiffs in this case may proceed against the defendant state officials, we must find that the following four requirements are met: (1) the plaintiffs are suing state officials, rather than the state itself; (2) the plaintiffs have alleged a non-frivolous violation of federal law; (3) the plaintiffs seek prospective equitable relief, rather than retroactive monetary relief from the state treasury; and (4) the suit does not implicate “special sovereignty interests.” Id. After addressing each of these elements, we conclude the plaintiffs’ claims meet the requirements of the Ex parte Young doctrine, and the defendants are therefore not immune from suit under the Eleventh Amendment.
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A. Alleging a suit against state officials The Ex parte Young doctrine allows plaintiffs to sue state officials even if
they claim to be acting under valid state law because, if the officials’ conduct constitutes an ongoing violation of federal law, the state “cannot cloak their actions with state authority or state immunity.” Id. That is, when state officials are arguably violating federal law, “[t]he state is not the real party in interest because the state cannot ‘authorize’ the officials to violate federal law.” Id. at 610. Hence, in allegedly violating federal law, the officials are stripped of their state authority and the Eleventh Amendment will not protect them from suit. In the case before us, the defendants are two state officials exercising considerable control over the implementation and administration of the waiver services under New Mexico’s Medicaid plan. The plaintiffs claim these officials, acting pursuant to state authority, are violating federal law in failing to provide waiver services to eligible individuals with “reasonable promptness.” The plaintiffs have, therefore, properly sued state officials, rather than the state itself.
Moreover, we are not persuaded by the defendants’ contention that the plaintiffs have failed to bring a permissible suit against state officials because the relief would require that the courts interfere with discretionary, rather than simply ministerial, acts by state officials. We have previously addressed the same argument, noting that “[a]lthough this general premise is sound, Ex parte Young
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does not extend this rule to preclude judicial review of discretionary acts that violate federal law.” Id. at 611. When plaintiffs establish a non-frivolous violation of federal law, we have held we “will not deny jurisdiction solely on the basis that a ruling might indirectly impact state officials’ discretionary acts.” Id. The relief sought in the present case requires only that the court order state officials to comply with federal law; because the court would not instruct the defendants in how to use their discretion to comply, any impact on the official exercise of discretion would be indirect. B. Alleging a violation of federal law
We must next determine whether the plaintiffs have alleged a non-frivolous claim for relief “that does not merely allege a violation of federal law solely for the purpose of obtaining jurisdiction.” Id. at 610 (internal quotation marks omitted). Although this question may rest on the later decision on the merits, we have characterized the two steps as separate, distinct inquires. Id. As the Supreme Court has recognized, a state official must act in violation of federal law and therefore outside any delegated authority in order for plaintiffs to avoid dismissal based on Eleventh Amendment immunity. See, e.g., Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 689-90 (1949), cited in Elephant Butte, 160 F.3d at 610. The question of whether state officials violated federal law therefore affects both the initial immunity inquiry and the
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court’s ultimate decision on the merits. Id. at 690 & n.10. At the immunity stage, however, federal courts apply the limited jurisdictional standard used to assess whether a claim sufficiently confers subject matter jurisdiction, asking only whether the claim is “wholly insubstantial and frivolous,” rather than reaching the legal merits of the claim. Id.
Applying this standard, we conclude that the plaintiffs’ claims are not “wholly insubstantial and frivolous.” Although the defendants argue that § 1396a(a)(8) fails to create a binding obligation on the state, the language of the statute and implementing regulations discourages the dismissal of the plaintiffs’ statutory claim as frivolous. As in Wilder v. Virginia Hospital Association, 496 U.S. 498 (1990), the statute and implementing regulations at issue here are at least arguably specific enough to create a binding obligation. See id. at 519-20; see also Sutter v. Artist, 503 U.S. 347, 359 (1992) (noting the Court in Wilder “relied in part on the fact that the statute and regulations set forth in some detail” the relevant factors). Under § 1396a(a)(8), the state “must” facilitate applications for medical assistance and “shall” furnish such assistance “with reasonable promptness to all eligible individuals.” 42 U.S.C. § 1396a(a)(8). In addition, the regulations require that states adopt time limits within certain parameters for determining eligibility. 42 C.F.R. § 435.911. Given such specific language, the claim that the statute creates a binding obligation on the states is
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not frivolous. Although the defendants do not raise the argument, we note the more
difficult question for resolution on the merits is whether § 1396a(a)(8) creates a federal right directly benefitting the plaintiffs in this case. In order to create a federal right, the statute must reflect Congress’s clear intent to benefit directly the particular plaintiffs in this case. See Blessing v. Freestone, 520 U.S. 329, 344-45 (1997). This question turns on whether the plaintiffs may be included as “eligible individuals” under § 1396a(a)(8). Whether “eligible” means eligible for Medicaid or eligible for both Medicaid and waiver services is not entirely clear. But because construing this language involves a more complicated analysis of the Medicaid statutes, the inquiry is more appropriately reserved for resolution on the merits of the case. In light of the statute’s ambiguity, the plaintiffs have at least alleged a non-frivolous claim.
Finally, although the plaintiffs allege a deprivation of both substantive and procedural due process rights, we note their argument essentially alleges only a deprivation of procedural due process. They argue that state officials have failed to process their applications for waiver services in the manner required by federal law; they do not, quite wisely, argue that the Medicaid statutes create a substantive property interest in waiver services to which they are entitled. Again, although we will not decide the merits, we do conclude that the plaintiffs’
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procedural due process claim survives the Ex parte Young inquiry because it is not wholly insubstantial or frivolous. In fact, a determination of whether the plaintiffs’ procedural due process rights have been violated depends on the resolution of the plaintiffs’ statutory claim–whether the Medicaid statutes actually create a federal statutory right to the reasonably prompt provision of services. C. Seeking permissible prospective equitable relief
Under the third element, we must find that the plaintiffs are seeking prospective equitable relief, rather than retroactive monetary relief. As we have recognized, however, in applying this distinction we ask “not whether the relief will require the payment of state funds, but whether the relief will remedy future rather than past wrongs.” Elephant Butte, 160 F.3d at 611 (internal quotation marks omitted). Because the main question is whether the relief will remedy an ongoing wrong rather than whether it will require payment of state funds, courts may grant prospective relief with “a substantial ancillary effect on a state treasury.” ANR Pipeline Co. v. Lafaver, 150 F.3d 1178, 1189 (10th Cir. 1998). The plaintiffs in the case before us clearly seek prospective equitable relief: they ask that state officials be compelled to comply with federal statutes that allegedly entitle them to the reasonably prompt provision of waiver services. They are not, for example, asking to be reimbursed for past home or community-based services.
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The relief sought simply requires “that officials conform their future actions to federal law,” Elephant Butte, 160 F.3d at 611 (internal quotation marks omitted), and any effect on the state treasury is, therefore, “ancillary.” D. Implicating special sovereignty interests
In response to the Supreme Court’s decision in Coeur d’Alene, we recognized: “[I]f we determine the relief Plaintiffs seek, although prospective and not tantamount to a damages award, is an excessive intrusion into an area of special state sovereign interest, Ex parte Young does not apply, and the Eleventh Amendment bars the suit.” Elephant Butte, 160 F.3d at 611-12. The defendants argue that the present action invades special sovereignty interests. But we may easily dispense with this argument because, in J.B. ex rel. Hart v. Valdez, 186 F.3d 1280 (10th Cir. 1999), we held that a “state’s interest in administering a welfare program at least partially funded by the federal government is not such a core sovereign interest as to preclude the application of Ex parte Young.” Id. at 1287. We also noted that a “challenge to the administration of a welfare program is not the equivalent of a suit for money damages, nor does it strike at the state’s fundamental power, such as the power to tax.” Id. Moreover, one of the claims in Valdez involved an alleged violation of the Medicaid Act, the same statutory scheme at issue in the case before us. Because the plaintiffs in the present case are challenging the administration of New Mexico’s Medicaid plan, we conclude
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it is analogous to Valdez and special sovereignty interests are not implicated. IV. Pendent Jurisdiction
Because the district court’s denial of the defendants’ motions to dismiss under Rule 12(b)(6) is not immediately appealable, they urge us to exercise our pendent appellate jurisdiction, arguing that the 12(b)(6) inquiry is “inextricably intertwined” with the second element of the Ex parte Young inquiry, which requires us to determine whether the claim alleges a violation of federal law. We have interpreted the Supreme Court’s discussion of pendent jurisdiction in Swint v. Chambers County Commission, 514 U.S. 35 (1995), to permit pendent appellate jurisdiction “only when the otherwise nonappealable decision is ‘inextricably intertwined’ with the appealable decision, or where review of the nonappealable decision is necessary to ensure meaningful review of the appealable decision.” Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir. 1997). In order for a nonappealable, or pendent, decision to be inextricably intertwined with an appealable decision, “the pendent claim [must be] coterminous with or subsumed in the properly appealable claim–that is, when resolution of the properly appealable claim necessarily resolves the pendent claim.” Id. In addition to recognizing that the discretionary exercise of pendent appellate jurisdiction “is generally disfavored,” we have noted that the Supreme Court has discouraged appellate courts from exercising pendent jurisdiction over otherwise
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interlocutory appeals. Armijo v. Wagon Mound Pub. Sch., 159 F.3d 1253, 1264 (10th Cir. 1998) (internal quotation marks omitted) (citing Swint, 514 U.S. at 5051).
Despite the interlocutory nature of the defendants’ nonappealable claims, they argue that pendent jurisdiction is proper because the 12(b)(6) inquiry is inextricably intertwined with the Ex parte Young inquiry into whether the plaintiffs have alleged a violation of federal law. As we noted above, the Supreme Court has, however, approached this part of the Ex parte Young doctrine as a question of subject matter jurisdiction, which requires a less demanding standard under which to review plaintiffs’ legal claims. See Larson, 337 U.S. at 689-90. In addressing the Ex parte Young scenario in which defendant state officials acted beyond their authority in violation of federal law, the Court has used the familiar language of Bell v. Hood, 327 U.S. 678, 682-83 (1946), recognizing a separate jurisdictional standard that requires dismissal only when the claim is “‘made solely for the purpose of obtaining jurisdiction or . . . is wholly insubstantial and frivolous.’” Larson, 337 U.S. at 690 n.10. In addition, we have also held that once the issue of Eleventh Amendment immunity is raised “such immunity constitutes a bar to the exercise of federal subject matter jurisdiction.” Fent v. Ok. Water Res. Bd., 235 F.3d 553, 559 (10th Cir. 2000) (emphasis added). Consequently, as a kind of exception to Eleventh Amendment
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immunity, the Ex parte Young doctrine is jurisdictional as well. The Ex parte Young doctrine is therefore governed by precedent that
clearly distinguishes the initial jurisdictional inquiry from the 12(b)(6) inquiry. The threshold necessary to sustain jurisdiction is well settled: “Jurisdiction . . . is not defeated . . . by the possibility that the averments might fail to state a cause of action on which petitioners could actually recover . . . .” Bell, 327 U.S. at 682; see also Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998) (“It is firmly established in our cases that the absence of a valid (as opposed to arguable) cause of action does not implicate subject-matter jurisdiction . . . .”). Furthermore, our circuit, as well as the Supreme Court, has exercised jurisdiction in cases with similar issues. For example, we have held that “[i]f the applicability of the federal statute upon which a plaintiff relies is genuinely at issue, the federal courts possess jurisdiction and should reach the merits of the claim.” Davoll v. Webb, 194 F.3d 1116, 1129 (10th Cir. 1999); see also Steel Co., 523 U.S. at 89 (“[T]he district court has jurisdiction if the right of the petitioners to recover under their complaint will be sustained if the Constitution and laws of the United States are given one construction and will be defeated if they are given another . . . .”).
We have already determined that the plaintiffs in the present case have alleged at least arguable violations of federal law sufficient to allow the suit to
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proceed to the merits. We need not, however, exercise pendent jurisdiction over the district court’s denial of the defendants’ motions to dismiss under Rule12(b)(6) because whether the plaintiffs have failed to state a claim upon which relief may be granted is not inextricably intertwined with our jurisdictional analysis under Ex parte Young and the Eleventh Amendment. Simply stated, Rule 12(b)(6) and the Ex parte Young doctrine are two distinct inquiries requiring the application of different standards.
Accordingly, we AFFIRM the district court’s denial of the defendants’ motion to dismiss based on Eleventh Amendment immunity and decline to exercise pendent appellate jurisdiction over the remaining portions of the district court’s order.
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