PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

LESLIE TAYLOR; CAROLINE 

NICHOLE COOKE; JACOB 

COOKE; COLORADO CROSSDISABILITY COALITION, 

 Plaintiffs - Appellants, 

v. 

COLORADO DEPARTMENT OF 

HEALTH CARE POLICY AND 

FINANCING; SUE BIRCH, in her 

official capacity as Executive 

Director of the Colorado Department 

of Health Care Policy and 

Financing, 

 Defendants - Appellees. 

No. 14-1161 

_________________________________ 

Appeal from the United States District Court 

for the District of Colorado 

(D.C. No. 1:12-CV-00300-PAB-KMT)

_________________________________ 

Kevin W. Williams (Andrew Christopher Montoya, with him on the briefs) 

Colorado Cross-Disability Coalition Legal Program, Denver, Colorado, for 

Plaintiffs-Appellants. 

W. Eric Kuhn, Assistant Attorney General, (Cynthia H. Coffman, Attorney 

General, with him on the brief) Office of the Attorney General, Denver, 

Colorado, for Defendants-Appellees. 

_________________________________ 

Before BRISCOE, MATHESON, and BACHARACH, Circuit Judges. 

_________________________________ 

FILED 

United States Court of Appeals

Tenth Circuit 

January 26, 2016

Elisabeth A. Shumaker 

Clerk of Court

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BACHARACH, Circuit Judge. 

_________________________________ 

The Medicaid program is a federal-state joint venture that provides 

medical assistance to low-income individuals like one of the plaintiffs, Ms. 

Leslie Taylor. This assistance is provided to Ms. Taylor through two 

programs administered in Colorado. One program subsidizes the cost of 

attendants who provide in-home care; the other program compensates 

recipients for mileage when they use their vehicles for medical 

appointments. 

Ms. Taylor owns a car, but she cannot drive because of a disability. 

To get to her medical appointments, she asked the Colorado agency to 

combine her benefits through the two programs. If approved, this 

combination would allow the agency to pay attendants for time driving Ms. 

Taylor to and from her medical appointments. The agency refused, and the 

plaintiffs allege that the refusal constitutes discrimination against Ms. 

Taylor based on her disability.1

On appeal, we ask: Does the agency’s refusal to combine its 

programs constitute discrimination against the disabled? We conclude the 

agency did not discriminate against Ms. Taylor based on her disability; she 

 

1

 The plaintiffs include not only Ms. Taylor, but also two of her 

attendants (Ms. Caroline Cooke and Mr. Jacob Cooke) and a nonprofit 

organization (Colorado Cross-Disability Coalition). But all of the 

plaintiffs’ claims involve discrimination against Ms. Taylor based on her 

disability. 

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obtained the same benefits that all other Medicaid recipients would have 

received in the same circumstances. 

I. Ms. Taylor is the beneficiary of two Colorado Medicaid programs. 

Ms. Taylor’s disability requires her to have attendants at home and 

when she travels, including when she travels to medical appointments. Her 

attendants are paid through a Colorado Medicaid program, Consumer 

Directed Attendant Support Services, which the defendants administer. But 

this program does not allow compensation for the attendants’ time spent 

driving individuals to medical appointments. See Colo. Code Regs. § 2505-

10:8.489.30(Q). 

Colorado also provides transportation assistance to Medicaid 

recipients through the Non-Emergent Medical Transportation program. 

This program is administered county by county, paying “for the least 

expensive transportation suitable to the client’s condition.” Id. at § 2505-

10:8.014; Appellants’ App’x at 23. 

In 2009, Ms. Taylor asked administrators of the medical 

transportation program to compensate her attendants for time spent driving 

to and from medical appointments. The administrators in Ms. Taylor’s 

county ultimately determined that they would provide a wheelchairaccessible van for Medicaid recipients over 60 years old and a per-mile 

reimbursement for all other Medicaid recipients. At the time, Ms. Taylor 

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did not qualify for the van service because she was under 60 years old. 

Accordingly, Ms. Taylor’s only option was the per-mile reimbursement.2

The plaintiffs allege the per-mile reimbursement constitutes 

discrimination by inadequately compensating Ms. Taylor for her 

transportation costs. According to the plaintiffs, this discrimination 

violates the Americans with Disabilities Act and the Rehabilitation Act. 

The district court dismissed these claims and denied the plaintiffs’ motion 

for reconsideration. The plaintiffs appeal both rulings. 

II. The dismissal was correct.

For the dismissal, we engage in de novo review. Keith v. Rizzuto, 212 

F.3d 1190, 1192 (10th Cir. 2000). In applying de novo review, we conclude 

that the dismissal was correct. 

A. We view the allegations in the complaint favorably to the plaintiffs. 

Applying de novo review, we assume that the factual allegations in 

the complaint are true. Id. The resulting question is whether these factual 

allegations plausibly suggest that the defendants are liable. Khalik v. 

United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012). 

 

2

 Ms. Taylor has since turned 60 years old, qualifying her for the 

county’s van service. This fact does not moot the appeal because (1) the 

plaintiffs request compensation for the attendants’ previous driving time, 

and (2) the plaintiffs allege that the van service is inadequate. 

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B. The plaintiffs do not allege facts that would constitute 

discrimination against Ms. Taylor based on her disability. 

To apply this standard, we are guided by the elements of the 

plaintiffs’ claims. See id. at 1192 (“While the [Rule] 12(b)(6) standard 

does not require that Plaintiff establish a prima facie case in her complaint, 

the elements of each alleged cause of action help to determine whether 

Plaintiff has set forth a plausible claim.”). Title II of the Americans with 

Disabilities Act and § 504 of the Rehabilitation Act contain different 

elements, but this appeal involves an element common to both statutes: 

discrimination against Ms. Taylor based on a disability.3 See 42 U.S.C. 

§ 12132 (Americans with Disabilities Act); 29 U.S.C. § 794(a) 

(Rehabilitation Act). Thus, both statutory claims trigger the same issue: 

whether the Colorado agency’s actions were discriminatory. To decide this 

 

3

 To state a claim under Title II of the Americans with Disabilities 

Act, the plaintiffs must show that (1) Ms. Taylor is a qualified individual 

with a disability, (2) she was excluded from participation in or denied the 

benefits of Medicaid services, programs, or activities, or was otherwise 

discriminated against by the Colorado agency, and (3) this exclusion, 

denial of benefits, or discrimination was by reason of Ms. Taylor’s 

disability. See Robertson v. Las Animas Cnty. Sheriff’s Dep’t, 500 F.3d 

1185, 1193 (10th Cir. 2007).

 By contrast, to state a prima facie claim under § 504 of the 

Rehabilitation Act, the plaintiffs must show that (1) Ms. Taylor is 

disabled, as the Rehabilitation Act defines, (2) Ms. Taylor would be 

“otherwise qualified” to participate in the Colorado Medicaid program, (3) 

the Colorado Medicaid program receives federal financial assistance, and 

(4) the Colorado Medicaid program discriminated against Ms. Taylor. See 

Jarvis v. Potter, 500 F.3d 1113, 1121 (10th Cir. 2007). 

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issue, we apply the same standards to discrimination claims under both 

statutes. See Cohon ex rel. Bass v. N.M. Dep’t of Health, 646 F.3d 717, 

725-26 (10th Cir. 2011); Wilkerson v. Shinseki, 606 F.3d 1256, 1262 (10th 

Cir. 2010). 

The plaintiffs argue that the agency discriminated against Ms. 

Taylor, raising four appeal points: 

1. The Colorado agency discriminated by refusing to exercise its 

discretion to compensate attendants for driving Ms. Taylor. 

2. The Colorado agency discriminated in deciding to issue only a 

per-mile reimbursement because the agency was obligated to 

fully compensate Ms. Taylor. 

3. The Colorado agency discriminated by refusing to pay for a 

driver even though Ms. Taylor could not drive and similarly 

situated recipients obtained subsidies for driving expenses. 

4. The Colorado agency was obligated under 28 C.F.R. 

§ 35.130(b)(7) to modify the medical transportation program. 

We reject each argument.4

 As a result, we conclude that the complaint does 

not state a valid claim for discrimination under the federal statutes.5

 

4

 The Supreme Court has assumed that the Rehabilitation Act “reaches 

at least some conduct that has an unjustifiable disparate impact upon the 

handicapped.” Alexander v. Choate, 469 U.S. 287, 299 (1985). But the 

plaintiffs have disavowed any challenge based on disparate impact. See 

Oral Arg. at 12:55-13:10. Thus, we express no view on whether the 

Colorado Medicaid programs had an “unjustifiable disparate impact” on the 

disabled who are unable to drive themselves to their medical appointments. 

5

 On appeal, the plaintiffs also argue that the Colorado agency 

intentionally discriminated against Ms. Taylor and its actions were 

“motivated by discriminatory animus.” Appellants’ Opening Br. at 35. But 

the plaintiffs did not raise this argument in the district court. We would 

ordinarily review this argument under the plain-error standard. See 

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1. The Colorado agency did not discriminate against Ms. 

Taylor by declining to pay the attendants for their driving 

time. 

The plaintiffs contend that the Colorado agency had the “flexibility” 

to pay the attendants for driving Ms. Taylor. Appellants’ Opening Br. at 

24. But the agency’s flexibility does not create a statutory duty. 

“The [federal Medicaid] Act gives States substantial discretion to 

choose the proper mix of amount, scope, and duration limitations on 

coverage, as long as care and services are provided in ‘the best interests of 

the recipients.’” Alexander v. Choate, 469 U.S. 287, 303 (1985) (quoting 

42 U.S.C. § 1396a(a)(19)). With this discretion, states can decline to alter 

a benefit’s scope “simply to meet the reality that [certain] handicapped 

have greater medical needs.” Id. As a result, the Colorado agency could 

choose not to pay attendants for their driving time even if the agency had 

the option of paying. That choice did not constitute discrimination because 

the Colorado agency provided identical Medicaid benefits to every 

similarly situated recipient, disabled or not. 

 

Gorsuch, Ltd., B.C. v. Wells Fargo Nat’l Bank Ass’n, 771 F.3d 1230, 1239 

(10th Cir. 2014). But because the plaintiffs have not urged plain error, we 

decline to consider the issue. See Richison v. Ernest Grp., Inc., 634 F.3d 

1123, 1131 (10th Cir. 2011). 

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2. The per-mile reimbursement was not discriminatory even if 

the reimbursement was inadequate to fully compensate Ms. 

Taylor for her transportation costs. 

The plaintiffs also argue that the per-mile reimbursement was 

discriminatory because it did not sufficiently compensate Ms. Taylor for 

the attendants’ driving time. Considered this way, the reimbursement is 

akin to a benefit “cap.” But a benefit cap is not discriminatory simply 

because it fails to fully compensate certain disabled individuals. See, e.g., 

Patton v. TIC United Corp., 77 F.3d 1235, 1246 (10th Cir. 1996) 

(explaining that though a damages cap for personal injury actions may 

“fall[] disproportionately on the disabled,” the cap on damages is not 

discriminatory when the “limitation applies to all”).6

Neither the Americans with Disabilities Act nor the Rehabilitation 

Act requires Medicaid programs to compensate the disabled for all of their 

transportation costs. Though the per-mile reimbursement was inadequate 

for Ms. Taylor, that inadequacy does not make the reimbursement 

discriminatory. 

 

6

 The plaintiffs point out that a federal regulation requires state 

Medicaid plans to specify that they “will ensure necessary transportation 

for beneficiaries to and from providers.” 42 C.F.R. § 431.53(a). But the 

plaintiffs do not base their claim on the regulation or contend that the 

regulation creates a private right of action. Cf. Harris v. James, 127 F.3d 

993, 1009-10 (11th Cir. 1997) (holding that 42 C.F.R. § 431.53(a) does not 

confer an enforceable right of transportation to and from medical 

providers). 

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3. The medical transportation program did not discriminate 

against disabled individuals who require a driver for 

transportation. 

The plaintiffs also argue that the Colorado agency discriminated 

against Ms. Taylor by failing to provide for a compensated driver, while a 

compensated driver was provided to similarly situated Medicaid recipients. 

Appellants’ Opening Br. at 30. But the plaintiffs erroneously define the 

universe of similarly situated recipients. 

The relevant geographic unit is the county because the Colorado 

agency administers transportation assistance differently among counties. In 

some counties, the agency provides brokered transportation for Medicaid 

recipients. For example, Medicaid recipients in some counties can go to 

medical appointments in a county-subsidized van. In Ms. Taylor’s county, 

however, transportation assistance is provided in two ways: (1) a 

wheelchair-accessible van for Medicaid recipients over 60 years old and 

(2) a per-mile reimbursement for all other Medicaid recipients. No one in 

Ms. Taylor’s county can obtain compensation for a driver under the 

medical transportation program. 

To determine whether Ms. Taylor suffered discrimination because of 

her disability, we compare Ms. Taylor to other Medicaid recipients who 

reside in her county, not recipients living elsewhere in Colorado. See 

Boatman v. Hammons, 164 F.3d 286, 292 (6th Cir. 1998) (holding that 

differences in county expenditures for transportation services, based on 

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factors such as geographic conditions, do not violate the regulatory 

requirement of uniform operation of the Medicaid program within the 

state); see also Bruggeman ex rel. Bruggeman v. Blagojevich, 324 F.3d 

906, 911 (7th Cir. 2003) (stating that a Medicaid program need not “assure 

identical convenience of service everywhere in the state”). 

With this comparison, the plaintiffs’ discrimination claim fails 

because Ms. Taylor is treated the same as every other Medicaid recipient in 

her county.7

4. The Colorado agency was not obligated to modify its 

Medicaid programs to accommodate Ms. Taylor’s disability. 

Under the regulations implementing the Americans with Disabilities 

Act, Colorado must make reasonable accommodations for Ms. Taylor’s 

disability only if necessary to avoid discrimination based on a disability. 

28 C.F.R. § 35.130(b)(7). Invoking this regulation, the plaintiffs argue that 

 

7

 The claim would fail even if the relevant comparison involved 

Medicaid recipients anywhere in the State of Colorado. In some of the 

more populated counties, Medicaid recipients are entitled to use brokered 

transportation services. These services are not provided in Ms. Taylor’s 

county. As the plaintiffs point out, this renders the mix of services 

different for Ms. Taylor and some other Medicaid recipients in Colorado. 

But that difference is based on where Ms. Taylor lives, not the existence of 

a disability. The Americans with Disabilities Act and Rehabilitation Act 

prohibit discrimination based on the existence of a disability, not the place 

of residence. As a result, the plaintiffs’ claims would fail even if we 

compared the benefits of Ms. Taylor and Medicaid recipients anywhere in 

Colorado. 

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the Colorado agency had to modify the medical transportation program. We 

disagree. 

Colorado must modify its Medicaid programs only if Ms. Taylor 

could not otherwise obtain the same benefits made available to nondisabled 

individuals. See Wis. Cmty. Servs., Inc. v. City of Milwaukee, 465 F.3d 

737, 751 (7th Cir. 2006) (en banc) (“[T]he plain language of [28 C.F.R. 

§ 35.130(b)(7)] . . . makes clear that an accommodation only is required 

when necessary to avoid discrimination on the basis of a disability.” 

(emphasis in original)). Under this standard, Ms. Taylor cannot prevail 

because the requested accommodation (payment of her attendants to drive 

to medical appointments) was not available to anyone, disabled or not. 

Thus, Colorado was not obligated to alter its Medicaid programs by 

creating a new benefit previously unavailable to any Medicaid recipients. 

* * * 

 Having rejected the plaintiffs’ four arguments, we uphold the 

dismissal of the discrimination claims. Even if the allegations in the 

complaint are credited, the Colorado agency did not discriminate against 

Ms. Taylor based on a disability. The Colorado agency provided the same 

benefits to all similarly situated Medicaid recipients, disabled or not.

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III. In denying the motion to reconsider, the district court acted 

within its discretion. 

After the district court ordered dismissal, the plaintiffs moved for 

reconsideration, arguing that the court had mistakenly thought that the 

state agency could not pay the attendants under the medical transportation 

program. With the motion, the plaintiffs submitted a fee schedule for 

services under the medical transportation program. The district court 

denied the motion for reconsideration. 

We review this ruling for an abuse of discretion. See Elephant Butte 

Irrigation Dist. of N.M. v. U.S. Dep’t of the Interior, 538 F.3d 1299, 1301 

(10th Cir. 2008). Under this standard, the plaintiffs’ challenge fails. 

In denying the motion for reconsideration, the district court 

concluded that the fee schedule would not have affected the need for 

dismissal. This conclusion fell within the district court’s discretion. As the 

district court concluded, the Colorado agency has unambiguously 

interpreted its regulations to prohibit payment of attendants for driving 

Ms. Taylor to and from her medical appointments. 

If the Colorado agency is incorrectly interpreting state regulations, 

the agency might be in violation of these regulations. But that violation 

would not involve the Americans with Disabilities Act or the 

Rehabilitation Act, the two statutes underlying Ms. Taylor’s claims. 

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IV. Conclusion 

The plaintiffs’ arguments are invalid.8 As a result, we affirm the 

dismissal and the denial of the motion for reconsideration.

 

8

 The plaintiffs also argue that 

 the district court failed to credit their allegations that the 

attendants would not continue to drive Ms. Taylor to medical 

appointments without fair compensation and 

 the agency once issued a check for drivers, but now says there 

is a policy against payment of drivers. 

We need not address these arguments. For the sake of argument, we can 

assume the attendants would refuse to drive Ms. Taylor without fair 

compensation. And the agency’s current position on compensation of 

drivers is clear even if the agency had a different position in the past. The 

plaintiffs’ claim involves discrimination, not misapplication of state 

regulations. 

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