                                                                       FILED
                                                           United States Court of Appeals
                                 PUBLISH                           Tenth Circuit

               UNITED STATES COURT OF APPEALS                     January 26, 2016

                                                              Elisabeth A. Shumaker
                      FOR THE TENTH CIRCUIT                       Clerk of Court
                      _________________________________

LESLIE TAYLOR; CAROLINE
NICHOLE COOKE; JACOB
COOKE; COLORADO CROSS-
DISABILITY COALITION,

      Plaintiffs - Appellants,

v.                                                  No. 14-1161

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.
                     _________________________________

             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.
                  _________________________________
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.

                                      2
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 wheelchair-

accessible van for Medicaid recipients over 60 years old and a per-mile

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



                                      3
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.

                                        4
      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).

                                      5
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
                                       6
      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).

                                       7
      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).

                                      8
      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

                                      9
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.

                                     10
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.




                                      11
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.




                                      12
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.

                                       13
