Filed 6/19/18
                               CERTIFIED FOR PUBLICATION




                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                               THIRD APPELLATE DISTRICT
                                          (Sacramento)
                                                ----




AMERICAN INDIAN HEALTH & SERVICES                                C081338
CORPORATION et al.,
                                                          (Super. Ct. No. 34-2014-
                  Plaintiffs and Respondents,            80001828-CU-WM-GDS)

        v.

JENNIFER KENT, as Director, etc., et al.,

                  Defendants and Appellants.




       APPEAL from a judgment of the Superior Court of Sacramento County,
Christopher E. Krueger, Judge. Affirmed.

      Xavier Becerra, Attorney General, Julie Weng-Gutierrez, Assistant Attorney
General, Susan M. Carson, Gregory D. Brown, and Dane C. Barca, Deputy Attorneys
General, for Defendants and Appellants.

       Hanson Bridgett, Kathryn E. Doi, Rachael E. Blucher, and Ann Mary Olson for
Plaintiffs and Respondents.



                                                 1
       The State Department of Health Care Services and its director (collectively, the
Department) appeal from a judgment in favor of plaintiffs on a petition for a writ of
mandate. Plaintiffs are 23 federally qualified health centers (FQHC’s) and rural health
clinics (RHC’s) that serve medically underserved populations (the Clinics). (42 U.S.C.
§§ 254b(a)(1), 1396d(l)(1), (2), 1395x(aa)(2), (4).) The dispute is over coverage for adult
dental, chiropractic, and podiatric services the FQHC’s and RHC’s provided to Medi-Cal
patients for a period between 2009 and 2013.
       Prior to July 1, 2009, the Department processed and paid claims for these services.
In 2009, in a cost-cutting measure due to budget problems, the Legislature enacted
Welfare and Institutions Code section 14131.101 to exclude coverage for these services
(and others) “to the extent permitted by federal law.” (§ 14131.10, subd. (d).) After the
Department stopped paying claims for these services, various FQHC’s and RHC’s
challenged the validity of section 14131.10, claiming it conflicted with federal Medicaid
law.
       In California Assn. of Rural Health Clinics v. Douglas (9th Cir. 2013) 738 F.3d
1007 (CARHC), the Ninth Circuit held section 14131.10 was invalid to the extent it
eliminated coverage for these services when provided by FQHC’s and RHC’s because the
federal Medicaid Act imposed on participating states the obligation to cover these
services by these providers.
       In response to CARHC, the Department announced it would reimburse FQHC’s
and RHC’s for these services for dates of service only on or after September 26, 2013,
the date of the Ninth Circuit’s mandate. Seeking reimbursement for services provided
prior to September 26, 2103, the Clinics petitioned in Sacramento County Superior Court
for a writ of mandate to compel the Department to accept, process, and pay claims for




1      Undesignated statutory references are to the Welfare and Institutions Code.

                                             2
these services for the period July 1, 2009, to September 26, 2013. The trial court granted
the petition in part and entered judgment for the Clinics. The court issued a peremptory
writ commanding the Department to process and pay for adult dental, chiropractic, and
podiatric services provided by FQHC’s and RHC’s between July 1, 2009, and September
26, 2013, and to follow existing regulations regarding late claims.
       The Department appeals. Characterizing the Clinics’ writ petition as a suit for
damages, it contends (1) sovereign immunity bars the Clinics’ claims for retroactive
payment; (2) the CARHC decision is not -- and cannot be -- retroactive because the
Medicaid Act is spending clause legislation and its terms were not sufficiently clear as to
the requirement to cover adult dental, chiropractic, and podiatric services provided by
FQHC’s and RHC’s; and (3) retroactive relief violates the separation of powers doctrine
because it forces the Legislature to appropriate money.
       We disagree with the Department’s characterization of the Clinics’ lawsuit.
Rather than a suit for damages, the lawsuit seeks an order to compel performance of a
mandatory duty and did not result in a money judgment. Under well-settled California
law, such a mandamus proceeding is not barred by sovereign immunity. The
Department’s contentions based on spending clause legislation and separation of powers
are new arguments raised for the first time on appeal. We exercise our discretion to
consider only the spending clause argument. We reject it because the Department has not
shown its obligations under Medicaid law, as determined by CARHC, came as a surprise.
The separation of powers argument raises factual issues about appropriations that should
have been presented in the trial court and we decline to consider this new argument.
       Accordingly, we affirm the judgment.
                 FACTUAL AND PROCEDURAL BACKGROUND
       Medicaid and Medi-Cal
       “Medicaid is a cooperative federal-state program through which the Federal
Government provides financial assistance to States so that they may furnish medical care

                                             3
to needy individuals. [Citation.] Although participation in the program is voluntary,
participating States must comply with certain requirements imposed by the Medicaid Act
. . . and regulations promulgated by the Secretary of Health and Human Services
(Secretary). To qualify for federal assistance, a State must submit to the Secretary and
have approved a ‘plan for medical assistance,’ [citation], that contains a comprehensive
statement describing the nature and scope of the State's Medicaid program. [Citation.]
The state plan is required to establish, among other things, a scheme for reimbursing
health care providers for the medical services provided to needy individuals.” (Wilder v.
Virginia Hosp. Assn. (1990) 496 U.S. 498, 502 [110 L.Ed.2d 455, 462].)
       “To qualify for federal funds, States must submit to a federal agency (CMS
[Centers for Medicare & Medicaid Services], a division of the Department of Health and
Human Services) a state Medicaid plan that details the nature and scope of the State's
Medicaid program. It must also submit any amendments to the plan that it may make
from time to time. And it must receive the agency's approval of the plan and any
amendments. Before granting approval, the agency reviews the State's plan and
amendments to determine whether they comply with the statutory and regulatory
requirements governing the Medicaid program. [Citations.]” (Douglas v. Independent
Living Center of S. Cal., Inc. (2012) 565 U.S. 606, 610 [182 L.Ed.2d 101, 106].)
       A state Medicaid plan must provide payment for services rendered by FQHC’s and
RHC’s. (42 U.S.C. § 1396a(bb); see Three Lower Counties Community Health Services,
Inc. v. State of Maryland (4th Cir. 2007) 498 F.3d 294, 297; Pee Dee Health Care, P.A. v.
Sanford (4th Cir. 2007) 509 F.3d 204, 207.) FQHC’s are health centers that serve a
medically under-served population and RHC’s are health centers that provide services in
rural areas with insufficient numbers of healthcare practitioners. (CARHC, supra, 738
F.3d at p. 1010.)
       Medicaid requires participating states to cover certain mandatory services. (42
U.S.C. § 1396a(a)(10).) States may also receive federal funding for other optional

                                             4
services. (See 42 U.S.C. § 1396d(a)(1)-(29) [defining medical care and services for
which payment is available].)
       “The Medi-Cal program (§ 14000 et seq.) represents California's implementation
of the federal Medicaid program [citation], through which the federal government
provides financial assistance to states so that they may furnish medical care to qualified
indigent persons. [Citation.] The Department is the single state agency designated to
administer the Medi-Cal program. (§ 14203.)” (Robert F. Kennedy Medical Center v.
Belshé (1996) 13 Cal.4th 748, 751.)
       In 2009, California faced a budget crisis and sought to reduce Medi-Cal funding.
The Legislature enacted section 14131.10 to exclude certain benefits it deemed optional
from coverage under the Medi-Cal program. A bill analysis explained: “This bill
contains necessary statutory changes to reduce expenditures for 2009-10 as directed to
mitigate the fiscal emergency of the state declared by the Governor.” (Sen. Rules Com.,
Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 5XXX (2009-2010 3d
Ex. Sess.) as amended Feb. 14, 2009.) Section 14131.10 provided: “[I]n order to
implement changes in the level of funding for health care services, specific optional
benefits are excluded from coverage under the Medi-Cal program.” (§ 14131.10, subd.
(a).) As relevant here, the excluded services included certain adult dental services,
chiropractic services, and podiatric services. (§ 14131.10, subd. (b)(1)(A), (D), & (F).)
Recognizing the role of federal law in the Medi-Cal program, the statute further provided:
“This section shall only be implemented to the extent permitted by federal law.”
(§ 14131.10, subd. (d).)
       Challenge to Section 14131.10 in Federal Court: The CARHC Decision
       An association of RHC’s and a FQHC brought suit in federal court to stop the
implementation of section 14131.10. In the federal action, the parties agreed
“physicians’ services” provided by RHC’s and FQHC’s were entitled to Medicaid
reimbursement. They disagreed as to the definition of “physician” and whether the

                                             5
definition in Medicaid law or Medicare law applied. (California Assn. of Rural Health
Clinics v. Maxwell-Jolly (E.D.Cal. 2010) 748 F.Supp.2d 1184, 1191 (Maxwell-Jolly),
revd. & remanded sub nom. CARHC, supra, 738 F.3d 1007.) The federal district court
ruled the Medicaid definition applied and section 14131.10 was not in conflict with
federal Medicaid law. (Maxwell-Jolly, supra, at p. 1198.) It also ruled that the
Department violated federal law by implementing section 14131.10 prior to receipt of
federal approval of the state plan amendment (SPA) and thus enjoined implementation of
section 14131.10 until federal approval was received. (Maxwell-Jolly, supra, at pp.
1199-1201.)
       The RHC’s and the FQHC appealed, challenging the district court’s holding that
section 14131.10 was consistent with the federal Medicaid Act. Prior to briefing on
appeal, CMS approved California’s SPA, thus rendering the Department’s cross-appeal
of the injunction moot. (CARHC, supra, 738 F.3d at pp. 1011, 1017-1018.)
       The Ninth Circuit held the Medicaid Act prohibited the limitations adopted in
section 14131.10. (CARHC, supra, 738 F.3d at pp. 1010.) The court found “the question
of statutory interpretation before us is difficult,” but because Congress was not silent or
ambiguous on the issue, but provided “a clear answer” in the statutory text, Chevron
deference (see Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc. (1984) 467 U.S.
837, 842-843 [81 L.Ed.2d 694, 702-703]) was not appropriate. (CARHC, supra, at p.
1014.) Analyzing the statutory scheme, the Ninth Circuit found Medicaid required state
plans to cover “physicians’ services” as defined in the Medicaid Act, which defined
physicians only as doctors of medicine and osteopathy, and separately to cover RHC
services and FQHC services. The Medicaid Act referred to the Medicare Act for the
definition of RHC services and FQHC services; these services include “physicians’
services.” The Medicare statute defined “physician” more broadly than the Medicaid Act
to include doctors of medicine and osteopathy, doctors of dental surgery and dental
medicine, doctors of podiatry, doctors of optometry, and chiropractors. (Id. at p. 1016.)

                                              6
“It is clear then that the ‘physicians’ services’ that the Clinics provide, and for which they
must be reimbursed, include not only the services furnished by doctors of medicine and
osteopathy, but also the services furnished by dentists, podiatrists, optometrists and
chiropractors.” (Ibid.)
       The Ninth Circuit concluded: “We hold that Medicaid imposes on participating
states an obligation to cover ‘rural health clinic services’ and ‘Federally-qualified health
center services,’ and Medicaid imports the Medicare definition of those terms. Thus,
Medicare unambiguously defines the Clinics’ services to include services performed by
dentists, podiatrists, optometrists and chiropractors, in addition to services provided by
doctors of medicine and osteopathy. Any alternate reading of the statute would do
violence to Medicaid’s command that the terms ‘rural health clinic services,’ ‘rural health
clinic’ and ‘Federally-qualified health center services’ shall have the meanings given
those terms in Medicare. [Citation.]” (CARHC, supra, 738 F.3d at pp. 1016-1017.)
       After CARHC, the Department took the position that adult dental, podiatric, and
chiropractic services provided by RHC’s and FQHC’s were reimbursable only for dates
of service on or after September 26, 2013 (the date the Ninth Circuit issued the writ of
mandate). The Department declared that such services provided before that date were not
reimbursable.
       Proceedings in State Court
       The Clinics petitioned for a writ of mandate in the Sacramento County Superior
Court. They sought an order requiring the Department “to process and pay claims for
adult dental, podiatry, and chiropractic services that Petitioners provided to eligible
Medi-Cal beneficiaries during the period July 1, 2009 to September 26, 2013.” The
Clinics sought a writ of mandate requiring the Department “to create an orderly process
for the processing and payment” of the claims, including “extending the deadline for
submission of claims” and assisting petitioners and other RHC’s and FQHC’s in



                                              7
determining eligibility for claims when eligibility information is no longer on the
Department’s Web site.
       The Clinics argued the Department should be compelled to create an orderly
process for payment of retrospective claims. This process had to include making
eligibility information, which was usually available on the Department’s Web site for
only one year, available back to July 1, 2009. There was a model for payment of
retrospective claims; one had been implemented for the optometry benefit which the
Department had excluded and then reinstated.
       In opposition, the Department argued the Clinics’ attempt to recover retroactive
monetary relief was completely barred by sovereign immunity. It further argued the
Clinics had not met the standard for a writ of mandate because the Department had no
clear, ministerial duty to create a database for retroactive claims or to pay such claims.
The Department asserted the CARHC decision was not retroactive as it changed a settled
rule of law; the Department was following California law and federal law as determined
by the district court. Finally, the Department objected that the Clinics brought suit in
state court solely to avoid the bar of the Eleventh Amendment to the United States
Constitution.
       In reply, the Clinics noted the Medi-Cal Provider Manual included exceptions for
late claims. They argued that to fully effectuate a mandamus order, the Department must
make eligibility information available and provide more than 60 days, the time period set
forth in regulations, to file a claim.
       The trial court found the Department had a duty, imposed by federal law and
California’s decision to participate in Medicaid, to pay for adult dental, podiatric, and
chiropractic services provided by RHC’s and FQHC’s and that duty could be enforced by
mandate. The court clarified that although the Department had no duty to extend the
deadline for claims, there were existing procedures permitting late claims for “good
cause” that arguably applied to the circumstance at issue here. “ ‘Good cause’ ” was

                                              8
defined as “circumstances beyond the control of the provider.” (Cal. Code Regs., tit. 22,
§ 51008, subd. (b).) Special circumstances that excused a late claim included court
decisions, provided the claim was made within 60 days of resolution of the circumstances
causing delay. (Cal. Code Regs., tit. 22, § 51008.5, subd. (a)(5)(A).)
       The trial court also clarified that it was not ordering the Department to accept any
particular late claim or to pay anything; instead, it was ordering the Department to follow
its existing regulations regarding late claims. Following these existing regulations would
include the Department’s exercising its discretion to determine whether there was good
cause for the particular late claim and, if so, determining whether the claim was payable.
Only after exercising its discretion and concluding there was good cause for late filing of
a payable claim must the Department pay the claim in accordance with state and federal
law. The court declined to extend the 60-day deadline in the regulations but left to the
Department how to apply the regulation.
       The trial court rejected the Department’s sovereign immunity argument, finding
this was an action in traditional mandamus, not an action for money damages. The
Clinics did not seek money damages; instead, they sought a writ of mandate ordering the
Department to comply with its duty to process and pay claims for services Medi-Cal was
required to cover. The court also rejected the argument that the CARHC decision was not
retroactive. It found section 14131.10 was not “settled” law as it had been challenged
approximately nine months after it was enacted.
                                      DISCUSSION
                                             I
                                   Sovereign Immunity
       The Department first contends the Clinics’ claims are barred by sovereign
immunity because they are seeking retroactive monetary relief. As we explain, we
disagree.



                                             9
       “The general expression of the doctrine of sovereign immunity is that the state
may not be sued without its consent. [Citation.]” (People v. Superior Court (1947) 29
Cal.2d 754, 757.) In California, “[s]uits may be brought against the State in such manner
and in such courts as shall be directed by law.” (Cal. Const., art. III, § 5.) For example,
California has waived its sovereign immunity for tort actions, provided there is
compliance with a claims act. (See Gov. Code §§ 810 et seq. [Government Claims Act],
945 [“A public entity may sue and be sued”].)
       The states’ immunity from suit is sometimes referred to as “Eleventh Amendment
immunity.” “The phrase is convenient shorthand but something of a misnomer, for the
sovereign immunity of the States neither derives from nor is limited by the terms of the
Eleventh Amendment. Rather, as the Constitution's structure, its history, and the
authoritative interpretations by this Court make clear, the States’ immunity from suit is a
fundamental aspect of the sovereignty which the States enjoyed before the ratification of
the Constitution, and which they retain today . . . .” (Alden v. Maine (1999) 527 U.S.
706, 713 [144 L.Ed.2d 636, 654] (Alden).)
       An important limit on the sovereign immunity principle was established in Ex
parte Young (1908) 209 U.S. 123 [52 L.Ed. 714] (Young). That case involved a
challenge to a Minnesota law reducing the freight rates that railroads could charge.
Railroad shareholders claimed that the new rates were unconstitutionally confiscatory,
and obtained a federal injunction against Edward Young, the then Attorney General of
Minnesota, forbidding him in his official capacity to enforce the state law. (Id. at pp.
127-129.) When Young violated the injunction, the Circuit Court held him in contempt
and committed him to federal custody. (Id. at p. 126.) In his habeas corpus application
in the United States Supreme Court, Young challenged his confinement by arguing that
Minnesota’s sovereign immunity deprived the federal court of jurisdiction to enjoin him
from performing his official duties. (Id. at p. 134.)



                                             10
       The high court disagreed. It explained that because an unconstitutional legislative
enactment is “void,” a state official who enforces that law “comes into conflict with the
superior authority of [the] Constitution,” and therefore is “stripped of his official or
representative character and is subjected in his person to the consequences of his
individual conduct. The State has no power to impart to him any immunity from
responsibility to the supreme authority of the United States.” (Young, supra, 209 U.S. at
pp. 159-160.)
       In Edelman v. Jordan (1974) 415 U.S. 651, 664 [39 L.Ed.2d 662, 673] (Edelman),
the high court limited the relief available under Young to prospective relief only. In
reversing an award of retroactive benefits under a federal-state program of Aid to the
Aged, Blind, or Disabled, the court distinguished Young. “The funds to satisfy the award
in this case must inevitably come from the general revenues of the State of Illinois, and
thus the award resembles far more closely the monetary award against the State itself,
[citation], than it does the prospective injunctive relief awarded in [Young].” (Edelman,
supra, at p. 665.) “In sum, Edelman’s distinction between prospective and retroactive
relief fulfills the underlying purpose of . . . Young while at the same time preserving to an
important degree the constitutional immunity of the States.” (Pennhurst State School &
Hosp. v. Halderman (1984) 465 U.S. 89, 106 [79 L.Ed.2d 67, 82] (Pennhurst II).)
       The Department relies on Edelman and Pennhurst II in arguing that sovereign
immunity bars the recovery of retroactive benefits here. But those cases, like Young,
involve the state’s immunity from suit in federal court. Here, we are concerned with
immunity in state court. “The fact that a claim against a state or its agency cannot be
brought in federal court due to the Eleventh Amendment does not, of course, necessarily
mean the claim cannot be asserted in state court either.” (Kirchmann v. Lake Elsinore
Unified School Dist. (2000) 83 Cal.App.4th 1098, 1103.) Federal cases are not
controlling on the question before us because “the immunity of a sovereign in its own



                                              11
courts has always been understood to be within the sole control of the sovereign itself.”
(Alden, supra, 527 U.S. at p. 749.)
       The Department contends this passage from Alden “merely clarifies that the State
maintains sole control over any waiver of its sovereign immunity, not that this immunity
is not protected by the United States Constitution.” (Original italics.) The issue here,
however, is waiver of sovereign immunity, that is, whether California recognizes an
exception to sovereign immunity in a case such that before us.
       California recognizes an exception to sovereign immunity for a mandamus
proceeding. “The rule is well established in this state that where the action is one simply
to compel an officer to perform a duty expressly enjoined upon him by law, it may not be
considered a suit against the state. [Citations.]” (County of Los Angeles v. Riley (1942)
20 Cal.2d 652, 662 [mandamus appropriate to force state to recalculate credit for aid
payments].) As examples of this rule, Riley cited to cases issuing a writ of mandate to
compel the payment of sums required by law. (Board of Directors v. Nye (1908) 8
Cal.App. 527, 528-529 [balance of funds for the support and maintenance of the
Woman’s Relief Corps Home Association]; Kingsbury v. Nye (1908) 9 Cal.App. 574
[increased salary of state officer provided for in the amendment to the constitution];
U'Ren v. State Board of Control (1916) 31 Cal.App. 6, 7 [payment of state employee’s
salary for one month].)
       This court addressed a situation very similar to that presented here in County of
Sacramento v. Lackner (1979) 97 Cal.App.3d 576 (Lackner). There, to control escalating
Medi-Cal costs, the then Director of the State Department of Health Care Services
declared a fiscal emergency and imposed a 10 percent cutback in payments to health care
providers and adopted a regulation causing postponement of certain elective services
under Medi-Cal. (Id. at p. 581.) Several counties sued to enjoin the emergency
regulations and the trial court found both the cutback and the regulations invalid. (Id. at
p. 582.) The counties then sought declaratory relief and a peremptory writ of mandate.

                                             12
The trial court found certain Medi-Cal payments insufficient and directed reimbursement.
(Id. at p. 580.)
       On appeal, defendants argued the trial court was without power to award any
damages because plaintiffs failed to comply with statutory claims procedures, a necessary
prerequisite to an action for money or damages against the state. (Lackner, supra, at pp.
586-587.) We rejected the argument. “An action in traditional mandamus, which seeks
an order compelling an official to perform a mandatory duty, is not an action against the
state for money, even though the result compels the public official to release money
wrongfully detained. [Citations.]” (Id. at p. 587.) We explained: “[I]n the case before
us plaintiffs sought to compel the state to disburse funds in the manner provided by the
Medi-Cal statutes. While the action has the practical effect of awarding plaintiffs money
(which has routinely been referred to as ‘damages’ by all parties), in law it is simply an
action in mandamus to compel by ministerial act the release of funds, not one for
damages from the sovereign.” (Id. at p. 588.)
       The Department reads Lackner to permit a writ of mandate to order the release of
funds only if the funds have been “specifically appropriated” by the Legislature for the
purpose in question. Here, as in Lackner, the funds in question are Medi-Cal payments.
The language of “specific appropriation” that the Department quotes comes not from
Lackner, but from a case cited by Lackner, County of L.A. v. State Dept. Pub. Health
(1958) 158 Cal.App.2d 425. There, the appellate court found “the object of the present
suits is to compel state officers to disburse funds specifically appropriated for
tuberculosis subsidies in the manner provided by the statute. This involves no invasion
of state sovereignty and does not fall within the rule precluding suits against the state
without its consent.” (Id. at p. 443.)
       Lackner did not limit its own holding to “specifically appropriated” funds. While
the judgment was limited to funds already appropriated, that limitation was due to a
statute limiting the extent of the state’s liability to a maximum of the amount

                                             13
appropriated by the state in a fiscal year for the purpose in question. We remanded for a
recalculation of damages as limited by this statute. (Lackner, supra, 97 Cal.App.3d at pp.
590, 592.)
       We recognize one difference between this case and Lackner. In Lackner, the
Medi-Cal funds had been appropriated by the Legislature and it was the Department of
Health Care Services’ director who imposed the cutback. Here, the Legislature excluded
certain services by enacting section 14131.10, and presumably reduced the Medi-Cal
apportionment. That legislative action, however, was invalid as it conflicted with federal
law, as CARHC held. As discussed ante, by agreeing to participate in Medicaid,
California agreed to comply with Medicaid’s requirements. Thus, coverage for the
disputed services was at all times required by both federal and state law, giving rise to the
Department’s mandatory duty to process claims and pay from appropriated Medi-Cal
funds those that were valid.2 As to compelling performance of a mandatory duty by a
writ of mandate, this case is the same as Lackner.
       We read Lackner to permit a petition for a writ of mandate to proceed without
compliance with a claims statute and not subject to the bar of sovereign immunity when it
seeks to compel compliance with a mandatory duty, even if that duty requires the release
of funds as required by law.
       “Courts have frequently found mandamus to be available in cases similar to the
one at bar, where one public entity seeks to force another to release funds in accordance
with a statutory duty.” (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 868




2 The Department’s position would permit the state to avoid fulfilling its Medicaid
obligations in tough economic times without recourse by passing questionable legislation
denying benefits while well-taken challenges to the legislation wind their way through
the courts. “[W]hile courts are cognizant of the need for fiscal economy, ‘ “budgetary
constraints cannot excuse a failure to comply with federal standards.” ’ ” (Jeneski v.
Myers (1984) 163 Cal.App.3d 18, 24.)

                                             14
[citing Lackner with approval] (City of Dinuba).) In City of Dinuba, our Supreme Court
rejected a governmental immunity defense to a suit to recover misallocated tax revenue,
finding mandamus was an appropriate remedy. “It is undisputed that defendants had a
duty to correctly calculate and distribute the tax revenue. Nor can it be disputed that
plaintiffs had a beneficial right in defendants doing so. It follows then that mandamus
provides an appropriate remedy for defendants’ failure to comply with their statutory
duty.” (City of Dinuba, supra, at p. 868; see also Board of Administration v. Wilson
(1997) 52 Cal.App.4th 1109, 1125-1126 [writ of mandate to direct return to quarterly
payments to retirement system and transfer of funds due under that schedule].)
       The Department cites to cases where claims for retroactive reimbursement were
denied. Those cases, however, turned on the lack of a duty to release the funds rather
than the retrospective nature of the claims. The issue was entitlement rather than timing.
For example, in Madera Community Hospital v. County of Madera (1984) 155
Cal.App.3d 136 (Madera), a hospital filed a petition for a writ of mandate to compel the
county to adopt standards for medical care for the poor which standards would require
reimbursement to the hospital. The appellate court directed the trial court to issue a writ
of mandate compelling the county’s board of supervisors to adopt such standards. (Id. at
p. 152.) The court held, however, that the hospital’s failure to file a proper claim
precluded reimbursement, distinguishing Lackner because Lackner involved the
performance of a ministerial duty and “in this case Hospital has failed to show any
entitlement to reimbursement because of the absence of standards adopted by County
which would authorize such payment.” (Madera, supra, at p. 149; see also Santa Ana
Hospital Medical Center v. Belshé (1997) 56 Cal.App.4th 819, 837 [distinguishing
Lackner because “there is no duty to disburse the funds claimed by appellant; to the
contrary, the statute prevents disbursement”].)
       The Department contends that styling the lawsuit as a petition for writ of mandate
is not dispositive because sovereign immunity and the need to comply with the

                                             15
Government Claims Act as an exception “applies to all forms of monetary demands,
regardless of the theory of the action. [Citation.] This includes a mandamus action
seeking monetary reimbursement.” (Sparks v. Kern County Bd. of Supervisors (2009)
173 Cal.App.4th 794, 798 (Sparks).) The Department contends this case is no different
than Sparks; both sought monetary reimbursement.
       In Sparks, a sheriff who had successfully defended himself in a lawsuit after the
county denied his request for a defense, petitioned for a writ of mandate seeking
reimbursement of the attorney fees and costs he incurred. The trial court denied the
petition because Sparks had not complied with the Government Claims Act. (Sparks,
supra, 173 Cal.App.4th at pp. 796-797.) The appellate court affirmed, rejecting the
argument that Sparks sought declaratory or injunctive relief and the monetary relief was
merely incidental. The court noted Sparks did not seek to compel the county to perform
its duty of providing a defense; he sought only reimbursement of his defense costs. (Id.
at p. 799.)
       Here, the Clinics did not directly seek money at all. Rather, they sought the
creation of an orderly process for the processing and payment of qualified claims for
certain services they provided between July 1, 2009, and September 26, 2013. The
Clinics sought a process that could lead to a monetary recovery; they did not bring an
action for money or damages. Although the judgment ordered the Department “to
process and pay for adult dental, chiropractic, and podiatric services” provided by
FQHC’s and RHC’s between July 1, 2009, and September 26, 2013, the judgment
expressly referenced the court’s order, “As set forth in the Order After Hearing.” The
trial court’s order shows the proceeding was to enforce a mandatory duty. The court
awarded no damages. Instead, it ordered the Department to do its duty with respect to
Medi-Cal claims from RHC’s and FQHC’s and follow existing regulations for the
processing of late claims. The Department had to pay something, if at all, only after it
exercised its discretion as to whether to accept late claims and determined whether any

                                            16
accepted claims were payable. The trial court explicitly noted it was not clear at the time
of its ruling that the Clinics were entitled to any money.
       The trial court did not err in finding the Clinics’ petition for a writ of mandate was
not barred by sovereign immunity.
                                              II
                           Retroactivity of the CARHC Decision
       A. General Rule of Retroactivity
       The Department contends it has no mandatory duty to pay claims for adult dental,
podiatric, and chiropractic services rendered between July 1, 2009, and September 26,
2013, because the CARHC decision did not find any such duty for that time period. The
Department asserts it had no duty to pay claims during the contested period because the
CARHC decision, that found the duty to pay such claims, is not retroactive.
       “The general rule that judicial decisions are given retroactive effect is basic in our
legal tradition.” (Newman v. Emerson Radio Corp. (1989) 48 Cal.3d 973, 978.)
“Whenever a decision undertakes to vindicate the original meaning of an enactment,
putting into effect the policy intended from its inception, retroactive application is
essential to accomplish that aim. [Citation.]” (People v. Garcia (1984) 36 Cal.3d 539,
549, overruled on another point in People v. Lee (1987) 43 Cal.3d 666, 676.) The
CARHC decision merely interpreted federal law on the question of whether Medicaid
required coverage for adult dental, podiatric, and chiropractic services provided by
RHC’s and FQHC’s. It did not declare a new rule of law; it interpreted existing law that
had not yet been interpreted. Where, as here, there is no material change in the law, the
question of retroactivity does not apply. (Woosley v. State of California (1992) 3 Cal.4th
758, 794.)
       In the trial court, the Department argued CARHC was not retroactive because it
changed “a settled rule on which the parties below have relied.” The trial court properly
rejected this argument. Although the Department claimed it relied on section 14131.10,

                                             17
that statute was not yet “settled law.” The validity of section 14131.10 was challenged in
federal court soon after its enactment. Where, as here, “the decision represents the first
authoritative construction of the enactment, no history of extended and justified reliance
upon a contrary interpretation will arise to argue against retroactivity.” (People v.
Garcia, supra, 36 Cal.3d at p. 549.)
       B. New Issue on Appeal
       On appeal, the Department raises a new argument as to why in its view CARHC
cannot be retroactive. Congress passed the Medicaid Act pursuant to the spending power
of article I, section 8, clause 1 of the United States Constitution. (Mission Hospital
Regional Medical Center v. Shewry (2008) 168 Cal.App.4th 460, 469.) The Department
argues that such legislation is in the nature of a contract and any conditions imposed on
the states receiving Medicaid money must be clear and unambiguous. It asserts that it
was not clear from the legislation that adult dental, podiatric, and chiropractic services
provided by RHC’s and FQHC’s were mandatory benefits and therefore mandatory
coverage for those benefits cannot be imposed retroactively.
       The Department did not raise this contention in the trial court and offers no reason
for its failure to do so. The Clinics assert the Department has forfeited this contention by
failing to raise it below. They argue this issue is not properly before us and should not be
entertained.
       “ ‘As a general rule, theories not raised in the trial court cannot be asserted for the
first time on appeal; appealing parties must adhere to the theory (or theories) on which
their cases were tried. This rule is based on fairness—it would be unfair, both to the trial
court and the opposing litigants, to permit a change of theory on appeal . . . .’ [Citation.]
‘New theories of defense, just like new theories of liability, may not be asserted for the
first time on appeal.’ [Citation.] ‘ “Appellate courts are loath to reverse a judgment on
grounds that the opposing party did not have an opportunity to argue and the trial court
did not have an opportunity to consider. . . . Bait and switch on appeal not only subjects

                                              18
the parties to avoidable expense, but also wreaks havoc on a judicial system too burdened
to retry cases on theories that could have been raised earlier.” ’ [Citation.]” (Nellie Gail
Ranch Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 997.) “In our adversarial
system, each party has the obligation to raise any issue or infirmity that might subject the
ensuing judgment to attack. [Citation.]” (JRS Products, Inc. v. Matsushita Electric
Corp. of America (2004) 115 Cal.App.4th 168, 178.) The Department failed to fulfill this
obligation.
       The rule against raising new issues on appeal, however, is not absolute. “As an
exception to the general rule, the appellate court has discretion to consider issues raised
for the first time on appeal where the relevant facts are undisputed and could not have
been altered by the presentation of additional evidence. [Citations.]” (Duran v. Obesity
Research Institute, LLC (2016) 1 Cal.App.5th 635, 646.) “Moreover, appellate courts are
most likely to consider an issue involving undisputed facts for the first time on appeal
where the issue involves important questions of public policy or public concern.
[Citation.]” (Ibid.)
       We do not condone the practice of asserting new theories on appeal when they
could have been raised in the trial court. Here, the effect is to give the Department an
undeserved second bite at the apple after its first attempt proved unsuccessful.
Nonetheless, because the Department’s contention raises a pure issue of law and because
it involves a matter of public interest and the public fisc, we exercise our discretion to
consider the issue.
       C. Legislation Pursuant to Spending Clause
       “Turning to Congress’ power to legislate pursuant to the spending power, our
cases have long recognized that Congress may fix the terms on which it shall disburse
federal money to the States. [Citations.] . . . [L]egislation enacted pursuant to the
spending power is much in the nature of a contract: in return for federal funds, the States
agree to comply with federally imposed conditions. The legitimacy of Congress’ power

                                             19
to legislate under the spending power thus rests on whether the State voluntarily and
knowingly accepts the terms of the ‘contract.’ [Citations.] There can, of course, be no
knowing acceptance if a State is unaware of the conditions or is unable to ascertain what
is expected of it. Accordingly, if Congress intends to impose a condition on the grant of
federal moneys, it must do so unambiguously. [Citations.] By insisting that Congress
speak with a clear voice, we enable the States to exercise their choice knowingly,
cognizant of the consequences of their participation.” (Pennhurst State School & Hosp.
v. Halderman (1981) 451 U.S. 1, 17 [67 L.Ed.2d 694, 707] (Pennhurst I).) “Though
Congress’ power to legislate under the spending power is broad, it does not include
surprising participating States with postacceptance or ‘retroactive’ conditions.” (Id. at p.
25.)
       The Department argues the statutory scheme governing which services provided
by RHC’s and FQHC’s are mandatory under Medicaid is complex and did not provide
adequate notice that coverage for the services in question is mandatory. The Department
contends it reasonably concluded that mandatory physicians’ services included only
services of doctors of medicine and osteopathy, the definition of physician in the
Medicaid Act, not the services of the broader definition of physician in the Medicare Act.
In support of this argument, the Department notes its interpretation was accepted by CMS
in approving the Department’s SPA’s and by the district court.
       We reject this argument. First, the Legislature acknowledged there were federal
limitations on its power to exclude benefits. “This section shall only be implemented to
the extent permitted by federal law.” (§ 14131.10, subd. (d).)
       Second, in CARHC, the Ninth Circuit found the statutory language at issue was
clear and unambiguous. (CARHC, supra, 738 F.3d at pp. 1014, 1016.) The Department
claims the Ninth Circuit made this finding only in the context of whether Chevron
deference applied and “that is a very different question from whether these requirements
were sufficiently clear” for spending clause purposes. The Department does not explain

                                             20
why and in what manner the determination of clear and unambiguous language differs
between the two contexts, and we do not discern a compelling difference. In both
instances, the issue is whether the language was “clear and unambiguous.” In the
Chevron deference context, the answer determines whether deference is given to the
agency’s determination. Here, the Department is also relying on the agency’s
determination, CMS approving its SPA’s, to show the language was ambiguous.
Moreover, the Ninth Circuit’s finding that the statutory scheme was clear and
unambiguous was not limited to its discussion of Chevron deference; the court used the
same terms to describe the statutory language generally in its discussion of statutory
interpretation. (CARHC, supra, at p. 1016.)
       Third, the Department’s claim of surprise (that CARHC found that the Medicare
definition of physician applied to RHC and FQHC services) is not well taken. The
Department relies on the approval of the SPA’s to assert that the Secretary of the United
States Department of Health and Human Services shared its interpretation.3 In
Pennhurst I, supra, 451 U.S. 1, the high court considered whether the statutory language
was sufficiently clear to impose the obligations of section 6010 of title 42 of the United
States Code on states participating in the federal-state grant program providing financial
assistance to participating states to aid them in creating programs to care for and treat the
developmentally disabled. The court found it “strains credulity to argue that participating
States should have known of their ‘obligations’ under § 6010 when the Secretary of HHS,
the governmental agency responsible for the administration of the [Developmental
Disablities Assistance and Bill of Rights] Act and the agency with which the participating




3  The Department cannot claim its own reliance on the approval of the SPA’s because it
denied claims on the authority of section 14131.10 before it obtained the approval from
the United States Department of Health and Human Services. (CARHC, supra, 738 F.3d
at p. 1011.)

                                             21
States have the most contact, has never understood § 6010 to impose conditions on
participating States.” (Pennhurst I, supra, at p. 25.) We find Pennhurst I distinguishable
because there the agency’s understanding of the meaning of the law was not based on the
approval of an SPA, but on regulations that the agency had adopted. (Id. at p. 23.) The
adoption of regulations indicates a more thorough consideration and acceptance of a
position than merely approving a SPA.4 Further, the Pennhurst I court, unlike the
CARHC court, found the statutory language ambiguous. (Pennhurst I, supra, at p. 19.)
       In support of its argument, the Department has requested judicial notice of the two
approved SPA’s as official acts and matters not subject to dispute. (Evid. Code, § 452,
subds. (c) & (h).) The Clinics object only on the basis that this material was not before
the trial court. Because we have exercised our discretion to consider this new issue on
appeal, we grant the request for judicial notice of this material.
       This material, however, does not assist the Department’s argument of surprise.
The first SPA limits coverage for services deemed optional. To this effect it states that
“[a]cupuncture, audiology, chiropractic, podiatry, dental, speech therapy, are covered
optional benefits only for” very limited categories of beneficiaries. But both SPA’s set
forth the definition of “physician” for purposes of RHC’s and FQHC’s. They use the
Medicare definition which includes podiatrists, optometrists, chiropractors, and dentists.
It was this definition of physician for RHC’s and FQHC’s that served as the basis for the
CARHC decision. The Department cannot claim surprise at the Ninth Circuit’s adoption
of the Medicare definition when the same definition was included in its SPA’s.




4 In the district court, plaintiffs offered evidence that CMS took the position that “ ‘the
definition of FQHC services is the same for Medicaid as it is for the Medicare
program.’ ” (Maxwell-Jolly, supra, 748 F.Supp.2d at p. 1197.) To the extent the
Department claims CMS now advances a different interpretation, the inconsistency in
interpretations counsels against granting great weight to any interpretation by CMS.

                                              22
                                              III
                                    Separation of Powers
       The Department raises a second new issue that it did not raise in the trial court,
that the judgment violates the separation of powers doctrine because it requires the
Legislature to appropriate funds to reimburse RHC’s and FQHC’s. “A court has no
authority to issue a writ of mandate that interferes with powers exclusively committed to
the other branches of government. [Citation.] The enactment of a budget bill is
fundamentally a legislative act, entrusted to the Legislature and the Governor and not the
judiciary. [Citations.] The California Constitution’s separation of powers doctrine
forbids the judiciary from issuing writs that direct the Legislature to take specific action,
including to appropriate funds and pass legislation. [Citations.] [¶] Under these
principles, a court is prohibited from using its writ power to require an appropriation even
if the Legislature is statutorily required to appropriate certain funds. [Citations.]”
(California School Bds. Assn. v. State of California (2011) 192 Cal.App.4th 770, 799.)
       The Clinics contend the Department is barred from raising this new issue on
appeal because it involves factual questions about appropriations. In support of their
position, the Clinics request judicial notice of portions of the Budget Act of 2016. The
Department has not objected to this request and we grant it. The 2016 Budget Act
appropriates $17 billion to the Department for local assistance.
       There is no violation of the separation of powers when “ ‘a court orders
appropriate expenditures from already existing funds. [Citations.] The test is whether
such funds are “reasonably available for the expenditures in question . . . .” [Citations.]
Funds are “reasonably available” for reimbursement when the purposes for which those
funds were appropriated are “generally related to the nature of costs incurred . . . .”
[Citation.]’ ” (County of San Diego v. State of California (2008) 164 Cal.App.4th 580,
598.) The reasonable availability of funds to pay any successful claims by RHC’s and



                                              23
FQHC’s for the disputed services poses factual questions that cannot be answered on this
record.
       In its reply brief, the Department focuses its separation of powers argument on its
claim that the CARHC decision and the Department’s duty to process and pay valid
claims are not retroactive, an argument we have rejected. It further argues any factual
issues as to the sufficiency of funds is premature and will only arise if and when proper
claims are filed. The Department contends those appropriation issues are not raised in
this appeal. We find this argument confusing as it suggests the separation of powers
argument raised in the opening brief (claiming a need for a new appropriation) is
premature. The Department appears to concede that the availability of funds and the
need for additional appropriations are factual questions. Accordingly, we decline to
consider this new issue based on separation of powers. (Mattco Forge, Inc. v. Arthur
Young & Co. (1997) 52 Cal.App.4th 820, 847.)
                                      DISPOSITION
       The judgment is affirmed. The Clinics shall recover costs on appeal. (Cal. Rules
of Court, rule 8.278(a)(1) & (2).)


                                                       DUARTE                , J.



We concur:



      RAYE                  , P. J.




      HULL                  , J.



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