In 1988, a representative plaintiff filed a lawsuit against the Colorado Department of Social Services in the District Court of the City and County of Denver. The lawsuit was filed under (1) Title XIX of the Social Security Act, 42 U.S.C §1396; (2) the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the U.S. Constitution; and (3) § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1988). The plaintiff alleged that the defendant granted home and community based services (HCBS) to the elderly, blind, physically disabled, and developmentally disabled but not to the mentally ill solely on the basis of their mental illness. The plaintiff sought an injunction, requiring the defendant to provide the HCBS benefits.

The trial court (Judge Edward E. Carelli) granted the plaintiff's motion for class certification and certified a class of all low income, mentally ill Colorado residents who qualify for skilled or intermediate care under Title XIX of the Social Security Act but who have been deprived of HCBS solely on the basis of their mental illness.

On August 23, 1990, the trial court held for the plaintiffs. The court found that the defendants had failed to provide the plaintiffs with the same HCBS program that was provided to elderly, blind, and physically-disabled persons. The court held that this failure did indeed violate the plaintiffs' rights under the federal and state Medicaid Acts, Section 504 of the Rehabilitation Act of 1973, and the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the U.S. Constitution. The trial court subsequently entered an injunctive order requiring the defendants to provide HCBS benefits to the plaintiffs.

The defendants appealed the judgment to the Colorado court of appeals, although the Colorado supreme court granted the plaintiffs' writ of certiorari to the court of appeals. On April 20, 1992, the Colorado supreme court reversed the judgment of the trial court. However, the supreme court order was subsequently withdrawn upon a grant of rehearing. Then, on December 14, 1992, the judgment of the Colorado district court was affirmed by operation of law because the Colorado Supreme Court was equally divided.

The state petitioned the U.S. Supreme Court for writ of certiorari, but the U.S. Supreme Court denied the petition on January 24, 1994. The case is now closed.

Jordan Rossen - 02/07/2011


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